IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 361 of 1997 Judgment reserved on : 28.10.2010 Date of Decision : November 25, 2010 State of Himachal Pradesh Appellant Versus Ashok Kumar and others Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant : Mr. Vivek Thakur, Additional Advocate General for the appellant/State. For the respondents : Mr. Nareshwar Singh Chandel, Advocate, for the respondents except respondent No. 2. Sanjay Karol, J. For an offence, which is alleged to have been committed on 19.10.1990, accused were put to trial. In terms of judgment dated 26.12.1996 passed by the learned Sessions Judge, Mandi, Kullu and Lauhal-Spiti Districts, at Mandi, H.P. in Sessions Trial No. 4 of 1996/ 5 of 1994, titled as State of H.P. versus Ashok Kumar and others, accused stand acquitted of the charged offences. Whether reports of Local Papers may be allowed to see the judgment? 2 2. It is the case of the prosecution that Sh. Raj Kumar (PW-10) got his daughter, Smt. Manju (deceased) married to Ashok Kumar (Accused No. A-1) in the year 1985. Marriage was solemnized at Bhatinda (Punjab). She was got married outside the community as the parents could not afford dowry. Out of the wed lock three children were also born. For about one year Smt. Manju was kept nicely by her in-laws. Thereafter Ashok Kumar (Accused A-1), his father Sita Ram (Accused No. A-2), mother Smt. Indira (Accused No. A-3) and brother Madan Lal (Accused No. A-4) started harassing and maltreating her for having brought insufficient dowry. Dowry demands in the shape of clothes and money were made. On 19.10.1990 Smt. Manju suffered burn injuries and was got admitted in Lady Wellington Mission Hospital at Manali. Dr. George Verghis (PW-1) medically examined her. She suffered burn injuries on the front portion of her body. On 19.10.1990 Smt. Manju got recorded her statement (Ext. PW 1/A) in the presence of Dr. George Verghis (PW-1), Sh. Rewat Ram (PW-9), Sh. Thakur Singh (PW-2) which was attested by Sub Inspector Roshan Lal (PW-14). F.I.R. No. 183/1990 (Ext. PW 14/A) dated 19.10.1990 under Sections 498-A and 309 of the Indian Penal Code was registered at Police Station, Manali. Police commenced investigation. It appears that there was public hue and cry and street processions were taken out by the local people. Consequently investigation of the case was taken over by S.H.O. Devinder Singh (PW-16) on 21.10.1990. On the basis of telegram (Ext. PW 10/A) sent by the accused to Sh. Raj Kumar (PW- 3 10) family of Smt. Manju reached Manali on 26.10.1990. They met her same day. On 27.10.1990 Sh. S. P. Thakur, Assistant Commissioner (Executive Magistrate) Manali (PW-4) got recorded another statement (Ext. PW 1/B) of Smt. Manju, scribed by Sh. Harbans Awasthi (PW-5) in the presence of Sh. Ram Chand (PW-6) and Smt. Pushpa (PW-8). Two other witnesses namely Smt. Subhashana Rani and Sh. Ajit Singh were also present. In her subsequent statement she disputed her earlier statement and imputed allegations of maltreatment to the accused persons for having brought insufficient dowry. The accused had threatened that the lives of her children would be in danger therefore under pressure she had given an incorrect statement. According to her on 19.10.1990 at about 8.00 – 9.00 a.m. she was alone in the house and working in the kitchen. Her mother-in-law (A-3) threw kerosene oil and set her on fire. During investigation police took into possession stove (Ext. P-1) and match box (Ext. P-2) and other relevant material. Unfortunately Smt. Manju expired on 28.10.1990. Inquest report (Ext. PW 16/A) was prepared by the Investigating Officer. On 28.10.1990 dead body was subjected to post mortem by Dr. B. S. Sahani (PW-13) at the District Hospital, Kullu. The deceased died due to extensive third degree burns on the face and front portion of her body. With the completion of investigation challan was presented in the Court for trial. 4 3. The accused were charged for having committed offences punishable under Sections 120-B, 302 and 498-A of the Indian Penal Code to which they did not plead guilty and claimed trial. 4. In order to prove its case prosecution examined sixteen witnesses and statements of the accused under Section 313 Cr. P.C. were also recorded. Accused pleaded innocence. According to accused A-1, at the time of the incident he was in the shop. Accused A-4 took the stand that police had taken photographs and also the material found at the spot including the burnt blanket, bangles etc. which has been concealed by them. According to accused A-3 at the time of the incident she was doing puja. She suddenly heard cries and went to the kitchen where she saw Smt. Manju who was wearing synthetic clothes on fire. She put a blanket on her to dowse the fire and in this process also burnt her palms. At that time her other daughter-in-law Smt. Savi was present in the house and alongwith Accused A-2 they took the injured to the hospital. 5. The Court below acquitted the accused hence the present appeal. 6. It is the case of the prosecution that Smt. Manju came from a poor background. Undoubtedly accused persons own properties at Manali and are financially well off. Sh. Rajinder Bansal (PW-3) an employee of the State Bank of India, Manali admits that accused 5 had given certain money to be paid to the parents of the deceased to come to Manali. He had also offered money to them. 7. According to Sh. Raj Kumar (PW-10), Smt. Ramesh Jain (PW- 12) and brother of the deceased Sh. Janesh Kumar (PW-11) fifteen days prior to the incident there was a dowry demand of ` 30,000/-. Now except for the bald and unspecific statement of these witnesses there is nothing on record to corroborate this fact. The allegations of maltreatment and harassment are also vague and unspecific. Ordinarily statement of the parents would not require any corroboration. But however in the attending circumstances, as would be noticed herein after, it is difficult to accept this version of theirs on the point to be true. Their version does not inspire confidence. 8. Parties were married for quite some time. No complaint, written or oral, whatsoever was ever made to any one by the parents or relatives of the deceased. On the question of dowry, harassment and cruelty, PW-12 states that accused A-1 had sent a letter making dowry demand of ` 30,000/-. Now this letter has not been produced on record. This was a material piece of evidence which would have proved the prosecution case. Unfortunately this material piece of evidence, as is claimed to be in possession of the prosecution witnesses, has not been placed on record. Why so, has not been explained. All this renders the prosecution case to be extremely doubtful. 6 9. From the statement of the prosecution witnesses, including police officials it is apparent that residents of Manali had taken out processions. There was public outcry and on demand investigation was taken over by a senior police official on 21.10.1990. Importantly deceased sustained burn injuries on 19.10.1990 on which date itself she was admitted in the hospital and her statement Ext. PW 1/A was recorded in the presence of the doctor, police official and other independent witnesses, yet the new investigating officer did not deem it proper or found it necessary to record another statement immediately after having taking over the investigation. From the statements of the brother and the father of the deceased it is also apparent that they had not only arrived Manali town on 26.10.1990 but had also met the deceased. Even on that date they did not make any grievance of any foul play or unfair investigation. It was only on 27.10.1990 that Sh. S. P. Thakur (PW-4) recorded a fresh statement (Ext. PW 1/B) of the deceased. What was the necessity to record such a statement and on whose instance the same was recorded has not come on record. It appears that public had taken out processions and on this instigation or asking of the parents of the deceased second statement was recorded. 10. Statement Ext. PW 1/A reads as under:- “Stated that I was married with Ashok about 6 years ago. We have a son and two daughters from our wed lock. Today, after sprinkling kerosene oil, I set myself on fire as my father-in-law, mother-in-law and husband use to quarrel with me. I could not put 7 my signatures, but could put my thumb impression. I have studied upto 12th standard. My both the hands have sustained burn injuries. Witness (Thumb impression) Witness (Sd/- in Hindi) Attested (Sd/- in English) As Rewat Ram Sd/- illegible Dr.G. Verghis Pradhan, Gram dt.19.10.90. M.O. Mission Panchayat Vashisht Hospital Manali” 11. Statement Ext. PW 1/B reads as under:- “I, namely, Manju w/o Sh. Ashok Kumar, aged 34 years resides at Sahgadi near Preet Hotel, Phati Nasogi, Kothi Manali, Tehsil and district Kullu, H.P. Stated that my mother-in-law, father-in-law, brother- in-law and husband used to harass me for dowry and domestic work. My brother-in-law, even inflicted beatings on me on this matter. On 19.10.90 at about 8.30 – 9 A.M. my father-in-law, brother-in-law and sister-in-law (Devrani) were not present in the house. As I was in the kitchen busy with culinary operations, suddenly my mother-in-law after sprinkling kerosene oil on my set me on fire. Thereupon, I doused the fire on my with much effort. I could not scream as I was perplexed with fire assuming dangerous proportions. On reaching the hospital my family members asked me to not to come out with the truth and to implicate them or else the future of my children would be not safe. Therefore, the statement given by me to the police on 19.10.90 was out of pressure and threatening by my family members. I feared that the aforesaid persons would have harassed me in case I survived. As such, I did not disclose the actual circumstances 8 in my statement recorded on 19.10.90. Today, I am giving my statement in a sound state of mind. The truth is that I did not try to commit suicide by sprinkling kerosene oil on myself. My in-laws seldom allowed me to visit my parents and used to harass me for dowry. About 3 – 4 months ago my mother and sister-in-law came to my in-laws house and gave my family members rupees thirty thousand as dowry so that the latter may not harass me for the same. I also told about this incident to my parents, brother and sister-in-law (Bhabhi) and maternal uncle and aunt when I visited my parents. My mother-in-law- after sprinkling kerosene oil set me on fire. Dated: 27.10.90 Place-Hospital At 1 P.M. Thumb Impression Scribe Harbans Awasthi, Manali Dated 27.10.90. 1. Sd. as Smt. Bubhashna Rani Member Woman Society, Manali. 2. Sd. as Smt. Pushpa Devi Member Woman Society, Manali 3. Sd. as Sh. Ajit Singh, Manali.” 12. Prosecution witnesses have deposed that statement Ext. PW 1/A was made by Smt. Manju allegedly due to threats given by the accused persons that they would not take care of her children and that their lives would be in danger. The Investigating Officer admits it to be true that during the course of investigation he had not found that when the deceased was brought from the residence to the hospital she was threatened by anyone. The Investigating Officer also did not find it necessary to verify such fact from any person in the hospital. He also did not feel the necessity of verifying the fact 9 that earlier statement was obtained under pressure. So is the version of the attesting witness. Undisputedly deceased was admitted in the hospital with almost 60% burn injuries on the front part of her body. It has come in the statement of Dr. George Verghis (PW-1) that the condition of the deceased was deteriorating and after 26.10.1990 all medication was stopped as there was minimal chance of her survival which fact stands corroborated by the O.P.D. Slip (Ext. D1). Deceased had burn injuries on both hands and therefore could not sign the statements. From the evidence on record it is apparent that right from the date of her admission in the hospital she was given sedatives. From the history sheet (Ext. D3) it is apparent that her mental faculties were materially affected and she had become mentally feeble. It has come on record that the concerned Investigating Officer and the S.H.O. had been daily visiting the hospital. Deceased allegedly got recorded in her statement (Ext. PW 1/B) that accused A-3 had sprinkled kerosene oil on her back who then set her on fire. Medical evidence renders this version to be extremely doubtful as according to the Doctor and the discharge summary deceased had suffered injuries only in the front portion of her body. 13. Statement (Ext. PW 1/A) was recorded in the presence of Sh. Thakur Singh (PW-2), Sh. Roshan Lal (PW-14), Sh. Rewat Ram (PW- 9) and Dr. George Vershis (PW-1). No doubt PW-9 has been declared hostile but however even from the testimony of other witnesses version narrated by the deceased in statement (Ext. PW 10 1/A) stands corroborated. None of these witnesses have deposed that accused had threatened deceased not to make correct statement. Dr. George Vershis (PW-1) states that it was a case of self immolation. It has come on record from the statement of the Investigating Officer that accused had brought the deceased to the hospital. Accused A-1 had also sent telegram (Ext. PW 10/A) to his father-in-law Sh. Raj Kumar. In this background statement (Ext. PW 1/B) cannot be said to be the exact, complete and truthful version rendering it to be doubtful. All this renders the version given by the accused to be probable, plausible and the prosecution story to be doubtful. 14. Further Sh. S. P. Thakur (PW-4) admits that last line in statement (Ext. PW 1/B) which says my mother-in-law after sprinkling kerosene oil set on fire (“Saas ne aage se mitti-tel phenka aur Saas ne aag laga di”) might have been added subsequently. No doubt Dr. George Verghis (PW-1) after recording of statement (Ext. PW 1/B) certifies that the deceased was medically fit but however this fact stands belied by his own treatment chart which shows that on the previous day all medication had been stopped for the reason that condition of the injured was not improving and it was a hopeless case of survival. Undisputedly she was under high sedatives. Significantly PW-4 did not first take opinion of the Medical Officer before recording the statement. In a sudden move and without any necessity or justification statement was recorded. 11 15. Importantly PW-10 and PW-11, in cross examination admit that on 26.10.1990 they were told by Smt. Manju that she was working in the kitchen when somebody threw kerosene oil from behind and then set her on fire. Now if this were true then why did the father of the deceased not immediately reported the matter to the police. Importantly this fact is also not recorded in the statement (Ext. DA) made by the witness. 16. In statement (Ext. PW 1/A) deceased admits to have sprinkled kerosene oil on herself and then set herself on fire. The reason given is that accused used to quarrel with her. There is nothing on record to corroborate this version of hers. But assuming it to be true even then, in our considered view, it would not amount to cruelty or harassment so as to fall within the scope of Section 498-A I.P.C. 17. In State of A.P. Vs. M. Madhusudhan Rao (2008) 15 SCC 582, the Apex Court has held as under: “It is plain that as per clause (b) of the Explanation, which, according to learned counsel for the State, is attracted in the instant case, every harassment does not amount to "cruelty" within the meaning of Section 498-A I.P.C. The definition stipulates that the harassment has to be with a definite object of coercing the woman or any person related to her to meet an unlawful demand. In other words, for the purpose of Section 498-A I.P.C. harassment simpliciter is not "cruelty" and it is only when harassment is committed for the purpose of coercing a woman or any other person related to her to meet an unlawful demand for property etc., that it amounts to "cruelty" punishable under Section 498-A I.P.C.” 12 18. In statement (Ext. PW 1/B) deceased herself states that at the relevant time her father-in-law, brother-in-law, sister-in-law were not present in the house. There is nothing on record to even prima facie show that the accused, in any manner had either abetted or prompted the deceased to take her life or that the accused set her on fire. 19. 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 versus 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 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. (Sanjay Karol), Judge. November 25, 2010 (PK)