1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Criminal Appeal No. 271 of 1998 Reserved on :17th June, 2010 Date of Decision: October,2010 State of Himachal Pradesh Appellant Versus Fakir Chand and others Respondents Coram The Hon’ble Mr. Justice Deepak Gupta,J. The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? No. For the appellant: Mr. Rajesh Mandhotra, Deputy Advocate General. For the respondents: Pt. Om Parkash, Advocate. Sanjay Karol, J. For an offence, which is alleged to have been committed on 23.12.1996, accused were put to trial. In terms of judgment dated 2.4.1998 passed by learned Sessions Judge, Una, H.P., in Sessions Case No. 21 of 1997 titled as State of H.P. vs. Fakir Chand and others, the accused stand acquitted of the charged offence. Whether the reporters of Local Papers are allowed to see the Judgment? 2 2. It is the case of the prosecution that on 26.12.1996 Charan Dass (PW-1) lodged a report (Ext.PA) with the Police Post, Haroli, District Una that his sister Smt. Sarwani Devi (PW-3) was married to Ved Parkash of Village Ajoli. Ved Parkash was financially weak, therefore, their eldest daughter Smt. Maya Devi was brought up by him. On 30.10.1995 Smt. Maya Devi was married to Kartar Chand (Accused No. 2) son of Shri Faquir Chand (Accused No. 1). At the time of marriage dowry was given. However, immediately after the wedding family members of Kartar Chand started accusing Maya Devi of having brought insufficient dowry. Quite often deceased used to complain about the cruelties and the harassment meted out by the accused upon her. Even at the time of birth of the child accused had demanded dowry. Kartar Chand had demanded Rs.10,000/- which were given by the complainant to Ved Parkash to be given to him. At about 5 a.m. on 23.12.1996 two boys from Village Lalhardi came to the house of PW-3 and informed her husband Ved Parkash that Maya Devi is seriously ill. They desired the parents to accompany them. Since Ved Parkash was mentally deranged, therefore, PW-3 sent a message to the house of complainant at Sangatpur. However, on that day complainant was at Chandigarh and his daughters Sunita and Nirmala were present in the house. 3 Sunita, Sudesh Kumari (daughter of complainant’s brother Shri Bakshi Ram) and Gurmeet Singh on a motorcycle went to Village Lalhardi. There all three of them saw the dead body of Maya Devi lying in a naked condition in the kitchen of the house of Kartar Chand. On query they were told that Maya Devi had gone into the kitchen to get milk for her child and got burnt from the stove. They requested the accused not to cremate the body till arrival of the elder members of the complainant’s family. However, her body was forcibly cremated by the accused. Complainant learnt about this fact on 25.12.1996 at Chandigarh and reached to his house at Sangatpur. Kartar Chand and his parents Faquir Chand and Urmila Devi (accused No.3) burnt the deceased for not having met the dowry demands. They also forcibly cremated the dead body to destroy evidence. 3. On the basis of the said complaint FIR No. 692 (Ext. PW 5/A) dated 26.12.1996, under Sections 304-B, 201, 34, IPC was registered at Police Station Una, H.P. Investigation was carried out by SHO Vidhi Chand (PW-5) Police Station Una, and SI Balbir Singh (PW-4). PW-5 arrested the accused. Accused Faquir Chand made a disclosure statement dated 27.12.1996 (Ext.PW-4/D) under Section 27 of the Indian Evidence Act disclosing the place of cremation of the dead body. The ash and bones from the 4 cremation ground were taken into possession by the police. PW-4 took into possession kerosene stove, plastic Can and other articles vide memo Ext.PW-4/B dated 27.12.1996 and Ext.PW-4/C dated 26.12.1996. Statements of witnesses were recorded and with the completion of investigation challan was presented in the Court for trial. 4. Accused Faquir Chand, Kartar Chand and Smt. Urmila Devi were charged for having committed an offence punishable under Sections 304-B, 201, 498-A, IPC to which they did not plead guilty and claimed trial. Accused No.4 to 9, who were co-villagers and had participated in the cremation, were charged for having committed an offence punishable under Section 201, IPC to which they also did not plead guilty and claimed trial. 5. In order to prove its case, prosecution examined five witnesses. They are members of the family of the deceased and two police officials. Statements of the accused under Section 313, Cr.P.C. were recorded. 6. Court below acquitted all the accused for the charged offence. Hence the present appeal. 7. In so far as accused No.4 to 9 are concerned, there is not even an iota of evidence on record to prove that they were involved in the destruction of any evidence in relation to death of Smt. Maya Devi. None of the witnesses 5 have even whispered anything against them. There is no evidence to prove that said accused had reason to believe that the co-accused had committed an offence and that they had caused any evidence in relation to such an offence to be disappeared with the intention of screening the offender from legal punishment. 8. Now, as per the version of the mother (PW-3) of the deceased two persons from the village of the accused had come and informed her that deceased was seriously ill. This version of hers stands contradicted by statement (Ext.PA) wherein it is recorded that the persons had informed Ved Parkash. Ved Parkash has not been examined in the Court. According to the prosecution he was mentally deranged. On record there is nothing to substantiate this fact by documentary evidence. The Investigating Officer (PW-5) categorically states that not only did he not record the statement of Ved Parkash but also did not find out whether Ved Parkash was mentally deranged or not. What information was given to Ved Parkash and what action did he take thereupon has not been explained. 9. Further, according to Sudesh Kumari (PW-2), niece of PW-3, two persons who had come from Village Lalhardi had informed about the death of Maya Devi. Thus with regard to the condition of the deceased the contradiction 6 in the statements of these two witnesses is quite apparent. Be that as it may be even on 22.12.1996 family members of the deceased were aware of the fact that Maya Devi had expired due to burn injuries. PW-2 admits to have visited the house of the accused persons and seen the dead body yet no action was taken by the complainant party in reporting the matter to the police. She admits father of the deceased and Sushil Kumar, who as per the version of PW-3 is son of her sister, had visited Village Sangatpur to inform the factum of illness of the deceased. It is further in evidence that PW-2 visited the house of the accused alongwith Sunita Devi and Gurmeet Singh. Gurmeet Singh is son of real brother of PW-3. Gurmeet Singh and Sunita Devi have not been examined in the Court. Why so has not been explained. Thus, the male members of the complainant’s family were thus fully aware of the events which had taken place. 10. According to PW-1 his son Ashwani Kumar visited Chandigarh to inform him about the incident, but he was not there. He learnt about this fact only on his return on 25.12.1996. Immediately on the same day he left for Sangatpur and after ascertaining the facts there, reported the matter to the police on 26.12.1996. Now Ashwani Kumar has not been examined in Court. When did he leave for or reach at Chandigarh has not been explained. That PW-1 was 7 inaccessible during this period all this while is also not his case. In cross-examination he specifically does not deny the fact that his brothers and Thakur Dass, Pradhan Karam Chand, Sagli Ram and other members of the community of the village and Panchayat Ajoli had attended the cremation, which was held on 22.12.1996 itself. In the aforesaid background and for the aforesaid reasons, unexplainable delay in reporting the matter to the police only on 26.12.1996 is fatal to the prosecution case. It is not the case of the prosecution that the complainant party was threatened, intimidated or otherwise prevented from approaching the authorities. Police Station was accessible by all means. Matter could have been promptly reported to the authorities by any one. 11. It is not the case of the prosecution that deceased was murdered by accused persons. According to the prosecution deceased died due to burn injuries. In our considered view, prosecution has not been able to prove that it was accused No.1,2 and 3,who had set the deceased on fire or that the deceased had set herself on fire due to the conduct of the said accused persons. 12. Even according to the complainant’s (PW-1) version in Court he only suspected that the deceased died for not having brought insufficient dowry. He categorically states 8 that “I cannot say that why the deceased finished her life” and PW-3 also states that “I suspect that deceased was killed by Kartar Chand and his parents for bringing inadequate dowry and ‘Shushkara’.” 13. An attempt has been made to show that deceased was harassed for having brought inadequate dowry. Even this fact cannot be said to have been proved on record by the prosecution by leading clear, cogent, consistent and reliable evidence. It is also the prosecution case that parents of the deceased were not finally well off. All the witnesses unanimously admit that accused persons were financially well off. 14. According to PW-1 he had only heard from “some girl” of the village that deceased used to complain about maltreatment meted out by the accused. He admits that Paramjeet Kaur daughter of his brother Sarwan Kumar is married in village Lalhardi. Now Paramjeet Kaur has not been examined in Court. Who is this ‘some girl’ has also not been explained or examined. On the question of dowry demand statements of PW-1, Pw-2 and PW-3 are vague and unspecific. Even otherwise their statements are contradictory rendering their testimonies to be unreliable and unconvincing. There are also contradictions in their statements. 9 15. According to PW-3 accused had demanded ` 10,000/-, which was paid to accused Kartar Chand by her brother. In the complaint (Ext.PA) it stands mentioned by PW-1 himself that he paid the said amount to PW-3, who in turn paid the same to accused Kartar Chand. However, in Court he contradicts his earlier statement that he had given ` 10,000/- to the accused for opening/running a shop. Version of PW-2 and PW-3 is also to the said effect. In cross- examination this witness admits that accused Karam Chand was privately employed at Ludhiana. PW-1 is not an income tax payee. He is the sole bread earner in the house. Source of money has not been proved much less payment thereof either to PW-3 or the accused. 16. Further prosecution witnesses (family members) admit that they never lodged any complaint about the maltreatments with any one. If allegations of harassment were true then deceased would have definitely brought this fact to the notice of her sister Paramjit Kaur who was married in the same Village. For the first time PW-3 in Court states that dowry articles like refrigerator, cooler were demanded by the accused. There is no mention about the same in the complaint. Consequently prosecution version of dowry demands does not inspire confidence. 10 17. It is the case of the prosecution that in spite of request made not to cremate the body till the arrival of the elders the accused forcibly cremated the body of the deceased Smt. Maya Devi. On this point statement of PW-2 gains significance, who states that “We informed the persons present there to wait for the arrival of the elders of our family. Till their arrival the dead body be not cremated. But the accused waited till evening but when nobody came from our houses then she was cremated about 5 p.m.”. Accused persons undisputedly had informed the family members of the deceased about the incident and that too in the early hours of the morning of the day. They waited for the relatives of the deceased to arrive and it was only when none came the body was cremated in the evening hours. Some are from the family of the deceased were present. 18. Prosecution version that PW-2 had seen the deceased lying naked in the kitchen appears to be improbable and not inspiring confidence. Admittedly relatives and villagers had assembled at the spot before their arrival. None have been examined to corroborate this fact. Had it been true the accused would have not left the body uncovered in public gaze. 19. From the record, it cannot be said that the prosecution has been able to prove that the accused treated 11 the deceased with cruelty or caused harassment within the ambit and scope of provisions of Section 498-A, I.P.C. Consequently statutory presumption under the Indian Evidence Act would not arise in the facts and circumstances of the instant case. It also cannot be said that the accused destroyed any evidence. 20. The accused have had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down in Mohammed Ankoos and others vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the accused persons has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. (Deepak Gupta) Judge. October 21, 2010 (Sanjay Karol) (C) Judge.