IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 587 of 1996 Reserved on: 26.4.2010 Date of Decision: 18.6.2010. State of H.P. …Appellant. Versus. Swaran Singh …Respondent. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for Reporting? No. For the appellant: Mr. Vivek Singh Thakur, Advocate. For the Respondent: None. Per Deepak Gupta, J. 1. This appeal by the State is directed against the judgement dated 18.11.1995 delivered by the learned Sessions Judge, Kangra at Dharmshala in Sessions Case No. 28-N/VII-1995 whereby he acquitted the accused of having committed offences punishable under Sections 306 and 498-A of the Indian Penal Code. 2. Briefly stated the facts of the case are that on 22.2.1994 at about 10.00 a.m. Puran Singh made a report to the Police Station, Jawali, to the effect that Sandla Kumari alias Guddi, wife of his younger brother Swaran Singh, was missing since the night intervening 2 20/21-2-1994. This report was recorded in the daily diary and is Ext.PH. After the report was recorded, ASI Krishan Kumar visited village Sidhpur Ghar for conducting an inquiry. During the investigation, he thought it necessary that the local well should be searched. He directed the villagers to search the well. At about 2.15 p.m on 23.2.1994 a telephonic message was received at the Police Station from Sehdev Singh Mankotia, Pradhan of the Gram Panchayat that the dead body of Sandla Kumari had been recovered from the well. This telephonic message was recorded in report Ext.PG. Thereafter, Sub- Inspector, Tara Chand alongwith ASI Lajam Singh and two constables went to the village. The dead body was taken out of the well and identified to be that of Sandla Devi by her brother PW-3 Balwant Singh. During the course of inquiry, statement of Balwant Singh under Section 154 Cr.P.C. was recorded wherein he expressed the suspicion that either the deceased had committed suicide since she was unable to bear the pressure and torture meted out to her by the accused or the accused had himself or with the help of someone murdered the deceased and then thrown her into the well. According to Balwant Singh, Sandla Devi got married to the accused four years earlier and she was treated with cruelty since 3 she could not bear a child and on account of the fact that old articles were given as dowry at the time of marriage. Port mortem of the body was conducted in which the following injuries were found:- (i) 10x5 cms bone deep semicircular lacerated wound was present on the scalp, starting 3 cm posterior to the centre of scalp, running posteriorly, 3cms anterior to the occipital protuberance. There were depressed communited fractures of the underlying bone. The margins of the wounds were stained with blood, which could not be washed off. Blood was oozing out of the brain from the fracture lines. The flap of skin had been averted towards the occipital region. (ii) There was red abrasion 5x4 cms on right side face, over zygomatic region. (iii) 5x4 cms red abrasion was present on rightside angle of mandible, extending to right side anterior surface of ear on its lower half. (iv) Small, multiple red abrasions were present on the back of the left hand. 3. Dr. D.R.Riyal, who conducted the post mortem alongwith Dr. Anil Mahajan opined that the death had occurred due to shock and hemorrhage leading to cardio respiratory failure on account of head injury. The injuries were ante mortem in nature. Thereafter, the house of the accused was searched on 25.2.1994 and during this search blood stains were found on the floor of the room. 4 The blood stained earth were lifted from the floor and taken into possession. This earth was chemically examined vide Ext.PA. It was found to be not blood stained. The accused was arrested on 27.2.1994. He was employed in the defence forces and during investigation it was found that whenever he came on leave he treated his wife with cruelty and beat her. Once he had beaten Gurditta Ram, father of the deceased. The deceased had been complaining to her parents about the cruelty and harassment. She was beaten because she could not bear a child and she had brought insufficient dowry. The prosecution also alleged that the accused had illicit relations with Geeta Devi, wife of his elder brother. According to the prosecution, sister of the accused had got married on 20.2.1994 but an invitation to the parents of the deceased Sandla Devi was intentionally extended for 21.2.1994 so that they could not come for the wedding. On this account also the deceased felt insulted and humiliated. It was on this account that the deceased jumped into the well which was about 150 feet deep. The walls of the well are made of stones and bricks. There was wild growth of bushes in the well to such an extent that the opening of the well had been almost fully covered. The deceased while 5 jumping into the well may have suffered the injuries on her head by striking against the wall and therefore might have died before she fell into the water. The accused was challaned for having committed the offences punishable under Section 306 read with Section 498-A of the Indian Penal Code. It is not clear how this was done but the accused at the time of framing of charge was charged with having committed offences punishable under Section 302 and 498-A I.P.C. It appears that the learned trial Court totally misdirected itself while framing the charges since the prosecution case itself was that the deceased had committed suicide and not that the deceased had been murdered by her husband. 4. PW-1 Dr. D.R.Riyal conducted the post mortem and opined that the injuries found on the person of the deceased could be possibly sustained during the course of a fall into a deep well, if while jumping into the well the deceased happened to strike against the hard surface of the wall and the wild growth and bushes. 5. PW-2 Gurditta is the father of the deceased. According to him whenever the deceased visited her parental home she complained that the deceased used to beat her on account of the fact that she could not conceive a child. She also complained that he also beat 6 her because he complained that she had brought old articles in dowry. She lodged a complaint about such beatings about two months before her death. Thereafter her father had accompanied her to the house of the accused and at that time accused caught hold of PW-2 by his neck and banged his head against the wall. He also stated that though the marriage of the sister of the accused took place on 20.2.1994, the invitation to them was extended for 21.2.1994. His son Prakash, brother of the deceased, went to the house of the accused on 21.2.1994 to attend the wedding. He came back and informed that the deceased was not present and was told by the accused that she was missing. Next day on 22.2.1994 the accused accompanied by Punnu Ram came to parental home of the deceased to inquire if she had come there. Next day i.e. on 23.2.1994 his son Balwant Singh who was employed at Jammu came home and he informed his son that deceased Sandla Devi is missing. Then Balwant Singh alongwith his wife went to Sidhpur Ghar. In the evening they were informed that the dead body of the deceased had been recovered from the well. 6. PW-3 Balwant Singh, is the brother of the deceased. He was serving in the Indian Railways and posted in Jammu and Kashmir. On 23.2.1994 he reached his 7 village at about 8.00 a.m and was told by his parents that the deceased was reportedly missing. Thereafter, on the asking of his mother, he alongwith his wife went to village Sidhpur Ghar to the house of the accused. He reached there at about 1.30 p.m and found that a number of persons had gathered near the well. The police was also present and the dead body of the sister was lying near the well. He then made a statement Ext.PE to the police, on the basis of which F.I.R. was recorded. He also deposed that his sister had no child and during her visits to her parental home she used to complain to him and his wife that the accused used to beat her, since she had been given old articles as dowry and on account of the fact that she could not bear a child. She also complained that the accused was having illicit relations with his brother’s wife. 7. PW-4 Smt. Radha Devi is the wife of PW-3 Balwant Singh. She has virtually repeated what has been stated by her husband PW-3. According to her, the deceased had last visited her parental home about 2/3 months before her death and at that time she had complained about the beatings having been given to her by her husband. She also stated that PW-2 Gurditta, her father- in-law, had gone with the deceased to the house of the 8 accused and he was also beaten up by the accused. She also stated that the invitation to the family members of the deceased for the wedding of the sister of the accused was extended for 21.2.1994 whereas the wedding took place on 20.2.1994. 8. PW-5 Prakash Chand is the second brother of the deceased. He was working at Amritsar. According to him on 21.2.1994 he went to the house of the accused from Amritsar alongwith ‘Shagun’ which he wanted to present on account of the marriage of the sister of the accused. He reached the house of the accused at about 3.00 p.m. The accused was sleeping. He was woken up by his father, brother and sister-in-law. The witness handed over the ‘Shagun’. He, however, did not find his sister there. When he made an inquiry the accused started crying and stated that the deceased was missing since 2.30 a.m. He also testified about beatings being given to the deceased by the accused. He then went to his village Suliali and did not find his sister there. Next day, the accused and Punnu Ram came to inquire about the sister. On 22.2.1994 he went to village Sidhpur Ghar where the police personnel were present. One person was sent down into the well with the help of a rope but the length of rope was short and he could not go down. He, 9 therefore, returned home. On the next day he heard that the dead body of his sister had been recovered from the well. 9. PW-6 Harnam singh is the Chowkidar of village Sidhpur Ghar. His house is at a distance of 200 yards from the house of the accused. According to him, the father of the deceased had been visiting her but no beatings took place in his presence. This witness was declared hostile. 10. PW-7 and PW-8 are formal witnesses. PW-9 Sahib Singh stated that about year and half back the accused alongwith Jhandu Ram had requested him that he should carry out a search of the well to find out if there is any dead body. He went into the well but the rope was short in length and therefore, he could not go down. Next day, he again went into the well with a long rope and found the dead body. The well was about 175 feet deep and the walls of the well were made of stone masonry and there were huge bushes on the walls. 11. PW-10, PW-11, PW-12 are formal witnesses in nature. PW-13 ASI Ujjagar Singh recorded the F.I.R. Ext.PE/1 on the basis of statement of Balwant Singh Ext.PE. Pw-14 and 15 are the Investigating Officers. 12. The accused was examined under Section 313 Cr.P.C. Though he admitted that the deceased was married to 10 him but he denied that he used to beat her or treat her with cruelty. He, however, admitted that he had gone to the house of the parents to inquire about the deceased since he could not locate his wife at home. He denied that Prakash Chand had visited his house on 21.2.1994. According to him the family of the deceased were invited for 20.2.1994 and not for 21.2.1994 and that they might have misunderstood the date. The recovery of the dead body was admitted. 13. The prosecution relies upon the following circumstances in support of its case:- (i) Relations between the deceased and the accused were not cordial and the deceased was being treated with cruelty by the accused; (ii) The deceased was last residing with the accused; (iii) Invitation having been extended by the accused to the parents of the deceased in connection with the marriage of his sister for a wrong date leading to a quarrel between the deceased and accused; (iv) Medical evidence; and (v) Conduct of the accused. 14. As far as the first circumstance is concerned, the admitted facts are that the accused works in the armed 11 forces and stays away from home for a long period. The case of the prosecution is that accused used to beat his wife for two reasons; firstly that she could not conceive a child and secondly she had brought old items in the dowry. Reliance is placed on the statement of PW-2 Gurditta, PW-3 Balwant Singh, PW-4 Smt. Radha Devi and PW-5 Prakash Chand. The initial report Ext.PE was recorded at the instance of Balwant Singh. The only reason given was that the deceased had been beaten on two-three occasions. There was no mention of any demand of dowry or the deceased being harassed because she could not conceive a child. No reason was assigned for the beatings. Therefore, it is apparent that the statements of PW-2, PW-3 and PW-4 in Court are improvements. It would be pertinent to mention that other than the family members who could be said to be interested witnesses, no other person has been examined to prove the fact that the deceased was beaten up for bringing less dowry or for not being able to conceive a child. There is no other evidence to show that the accused was in any manner harassing or ill-treating his wife within the meaning of Section 498-A I.P.C. 12 15. As far as the second circumstance is concerned, it is not denied that the deceased and the accused were living together. 16. The third circumstance is that invitation for wedding of the sister of the accused was extended to the family members of the deceased for 21.2.1994 and the wedding had taken place on 20.2.1994 and therefore, the deceased felt humiliated. Admittedly, the wedding of the sister of the accused took place on 20.2.1994. An invitation had been extended to the parents of the deceased. We see no reason when an invitation was being extended why it should be extended for a wrong date. It is important to mention that the father of the deceased in his cross-examination has admitted that the deceased was somewhat short tempered and a very pampered child. It is also admitted that it was the sister of the accused who had come to extend the invitation of the marriage. It is also admitted that the invitation to attend the marriage was extended to all the members of the family. Invitation was not extended in writing. Even the date was not noted down in writing by the parents of the deceased. Therefore, the chance of their being some mis-communication or the date having been wrongly heard by the parents of the deceased cannot be ruled 13 out. The invitation was not extended by the accused and was extended by his sister. If the sister gave a wrong date while extending the invitation, the accused cannot be convicted for her mistake. 17. As far as the next circumstance i.e. medical evidence is concerned, there is no manner of doubt that the deceased died as a result of jumping into the well. She sustained head injury while falling into the well. 18. As far as the last circumstance i.e. the conduct of the accused is concerned, it in fact shows that he was worried about his wife. The deceased went missing on the night intervening 20/21-2-1994 at about 2.00 a.m. On 22.2.1994 at 10.00 a.m. Puran Chand, brother of the accused, made a report to the police that the deceased was missing. When PW-5 went to the house of the accused on 21.2.1994 he was told that the deceased was missing. The accused did not hide this fact. In fact on 22.2.1994 the accused went to the house of his in-laws to find out if his wife, the deceased, had gone to her parental home. He arranged to get the report made through his brother. It was the accused who approached PW-9 Sahib Singh and requested him to search the well. He arranged for the rope also. When the rope fell short on the first day the accused arranged for more rope. On 14 the following day the accused remained present throughout and took active part in the search operation. Therefore, this circumstance cannot be held against the accused. The learned trial Court on consideration of the entire evidence has rightly acquitted the accused. We find no reason to interfere in the judgement of acquittal recorded by the learned trial Court. Therefore, the appeal is dismissed. Bail bonds furnished by the accused are ordered to be discharged. ( Deepak Gupta ) Judge. 18th June, 2010 ( Rajiv Sharma) ™ Judge.