IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No. 487 of 1997 Decided on: 10.9.2010 State of H.P. ..…Appellant Versus Upender Chand. ..…Respondent Coram The Hon’ble Mr. Justice R.B. Misra, J. The Hon’ble Mr. Justice V.K. Sharma, J. Whether approved for reporting?1 For the appellant : Mr. Rajinder Dogra, Addl. A.G. with Mr. Anil Jaswal, Dy. A.G. For the respondent : Mr. Himat Negi, Advocate,vice Mr. Ajay Sharma, Advocate. R.B. Misra,J. (Oral) The present criminal appeal has come-up for consideration after leave to appeal under Section 378(3) of the Code of Criminal Procedure has been granted, in reference to the impugned judgment dated 8.4.1997, passed by learned Sessions Judge, Kangra at Dharamshala, H.P. in Sessions Trial No. 29- G/VII-1996, acquitting the respondent-accused for the offence, under Section 306/498-A of the Indian Penal Code, in reference to FIR No. 120/95 dated 24.7.1995. 1 Whether the reporters of Local Papers may be allowed to see the judgment? 2 2. The prosecution case is that Smt. Rekha Devi was married with Upender Chand, respondent-accused in the year 1992 and at initial stage of marriage relation with her husband was normal. However, after some time, her husband as well as family members started maltreating her. Smt. Rekha Devi was taken by respondent-accused to Delhi where she was given beatings and a telegram was sent to the parents of Smt. Rekha Devi and when mother and brother of Smt. Rekha Devi reached at Delhi they also noticed maltreatment, however, the respondent-accused reprimanded and thereafter the mother and brother of Rekha Devi left Delhi for their native village. After some time, respondent-accused brought Rekha Devi to his house from Delhi where she was being tortured by mother and Bhabhi of respondent-accused and in the house of respondent- accused Rekha Devi delivered a child and immediately thereafter, her mother-in-law and family members started maltreating. Matter was reported to Gram Panchayat and on persuasion, it was settled. Thereafter, demand of dowry was also alleged to have been made by the family members of respondent- accused. However, on 23.7.1995 co-villager informed Ajit Kumar, brother of the deceased Rekha Devi that she had died and thereafter, FIR was lodged and on investigation, respondent- accused was charged for offences, under Section 306/498-A of the Indian Penal Code and the case was committed to Sessions Court. 3. In order to prove its case, the prosecution examined as many as twelve witnesses, whereas the accused through his 3 statement under Section 313 Cr.P.C. denied the prosecution case. 4. PW-1 Dr. D.P. Swami conducted the post mortem examination of the deceased and observed as below:- The body was brought with the alleged history of taken aluminium phosphide on 23.7.95 and died at 9.00 A.M. On external appearance it revealed that hypostases on back and dependent parts was present. Rigor mortis was in developing phase. Froth was present in mouth with reddish colour. There were no injuries or ligature mark. Cranium and spinal cord were congested. THORAX Nothing abnormal detected in walls ribs and cartilidges. Plurae was congested. Larynx and trachea were congested with froth. Right and left lung also congested. ABDOMEN Stomach & its contents : Empty, smell of aluminium phosphide as a garlic odour and walls were congested. Small intestine & its contents : Empty smell of aluminium phosphide as a garlic odour. Walls congested and there was 20 ml of semi-digested food. Large intestine and its content s: Full of gases and faecal matter. Liver, spleen, kidney. : Congested. Badder : Empty. Organs of generation : NAD. Uterus normal in External & internal size. 4 5. PW-2 Ajit Singh, brother of deceased, who appears to have not participated in the marriage and was not happy with the marriage of deceased with respondent-accused has endeavoured to support the prosecution case. PW-3 Smt. Premi Devi, mother of deceased Rekha Devi like PW-2 Ajit Singh has endeavoured to support the prosecution case. PW-4 Rajmal has simply stated that Rekha was brought from Delhi by her mother and brother and PW-4 was told that deceased was tortured and beaten. PW-5 Smt. Maksina Devi simply deposed that Rekha deceased met her once and she disclosed that she was being harassed and tortured by her in-laws. PW-6 Ranjit Singh, president of Gram Panchayat, Barol-Lahar has stated that once he received an application from the parties for settling the dispute. However, the matter was compromised. PW-7 Surinder Kumar deposed that MHC handed over one sealed parcel along with an envelope, which he deposited in the office of FSL, Bharari. PW-8 Ravi Kumar deposed that on 24.7.1995 Constable Roshan Lal deposited one sealed parcel along with envelope, which he retained in the Malkhana. PW-9 Dharam Chand stated that at the instance of Investigating officer, he photographed the dead body of deceased Rekha. PW-10 ASI Balraj Singh deposed that on receipt of Rukka Ext.PW2/B, he recorded the FIR Ext.PW10/A. PW-11 ASI Brahm Dutt deposed that he partly investigated the case. PW-12 Inspector Jagdish Chand also partly investigated the case. The official prosecution witnesses have endeavoured to support the prosecution case to the extent the role assigned to them. 5 6. Respondent-accused was examined under Section 313 Cr.P.C. However, in an answered to a question put to him, respondent-accused deposed that the brother of deceased Rekha was angry with him and despite his asking his wife to stay in Delhi or at his home the deceased had chosen to go to her parental house. According to the respondent-accused, his wife was of weak mind and was usually ignoring the advice given by his family members and his mother and mother-in-law of deceased wanted that the deceased reside with her. However, decease was not agreeing. 7. On analysis of the prosecution witnesses and materials on record, we notice that PW-2 Ajit Singh, the brother of deceased did not participate in the marriage ceremony of deceased with respondent-accused. PW-2 has never visited the house of respondent-accused after the marriage of Rekha with respondent-accused. Such fact is also admitted by PW-3 Premi Devi, the mother of the deceased. Nothing is incriminating in the statements of Ajit Singh PW-2 and Premi Devi PW-3 that respondent-accused ever demanded dowry or Rs. 10,000/-. PW-4 Rajmal has deposed that brother and mother of deceased Rekha brought her from Delhi to their house whereas Both PW-2 and PW-3 deposed that after receiving alleged telegram, they visited Delhi and they noticed that Rekha was alright and then they returned to their house. The testimony of PW-4 normally in contravention and does not corroborate with the statements of PW-2 and PW-3. 8. PW-5 Maksina’s evidence has deliberately been inserted the Investigating Officer to prove that Rekha was 6 tortured by the respondent-accused as well as his family members because according to her Rekha met her only once and deposed about the behaviour of respondent-accused. However, she is resident of distance place. 9. PW-6 Ranjit Singh has deposed that application Ext.PW2/A was moved to him and endorsement at point ‘A’ was written at the instance of police. According to him the police took the said application in possession from him whereas ASI Brahm Dutt ( PW-11) in cross-examination has admitted that Pardhan himself came to him and handed over the said application. Meaning thereby that it cannot be given to the Panchayat by the parents of the deceased Rekha against the respondent-accused wherein the behaviour of respondent- accused has been highlighted. Such, application was neither registered in Panchayat. The Investigating Officer himself admitted that during investigation he found that brother of deceased never visited the house of the respondent-accused after the marriage of Smt. Rekha (deceased). The tough attitude of the mother of the deceased is also revealed from the record that the money which Rekha received during her marriage was deposited by her mother in Cooperative society and she herself became her nominee. The suggestion put by the learned defence counsel to the mother of deceased that her daughter Smt. Rekha remain with her in her house and respondent- accused should send some maintenance allowance is without any basis. 10. The stand of the respondent-accused was that Smt. Rekha was pregnant and she was brought to his house from 7 Delhi and he remained at his house for about one and half months and during this period Rekha delivered a child and thereafter he left for Delhi and in his absence Rekha left for her parental house. Despite his writing letters, she had not given any response and when respondent-accused came from Delhi, on the persuasion of certain elderly villagers, Rekha was brought back to his house. However, deceased was not comfortable at his house. However, respondent-accused left for Delhi very next day. 11. On the scrutiny of the prosecution witnesses, we see that though Rekha was married to the respondent-accused in the year 1992 and she consumed insecticide in July 1995. Right from 1992 to July 1995 no report was lodged by brother or mother of the deceased to the police or Panchayat about the behaviour of the respondent-accused and his family members. This aspect also suggests that respondent-accused never maltreated his wife Smt. Rekha and most of the time they lived together at Delhi. It appears that on account of behaviour of her mother and brother, deceased Rekha was not happy. 12. If we take into consideration the conduct of the respondent-accused , the moment the respondent-accused came to know about the condition of his wife, he immediately rushed to his house and even asked his co-villager to inform his in-laws about the illness of his wife and on reaching his house, he tried to lift the body of his wife for taking her to hospital but in the meantime certain villagers advised him that Rekha Devi had already expired and there was no use of her taking to hospital. Meaning thereby that respondent-accused was not knowing 8 about the insecticide having been consumed by the deceased Rekha nor the prosecution has proved that insecticide was procured by the respondent-accused and he abetted in the commission of suicide of the deceased. 13. On analysis of entire prosecution witnesses and materials on record, we notice that there was no definite demand of any dowry nor any instance was ever reported to the police or panchayat about specific demand of dowry or any instance of any maltreating or beating which should be co- related with the suicide by deceased. In our considered view, giving maltreatment, torture on the victim should be such which consequent may that a cause of suicide. In the facts and circumstances, prosecution has said to have not proved its case beyond reasonable doubt. In our considered view, prosecution has failed to bring home the guilt of the accused. Accordingly, the appeal being devoid of any merit is, therefore, dismissed. 14. Bail bonds, furnished by the respondent-accused, are hereby discharged. (R.B. Misra), Judge. September 10, 2010 (V.K. Sharma), Judge. (vs)