IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.: 124/1999 Reserved on: 24.5.2010 Decided on:14.6. 2010 _____________________________________________ State of Himachal Pradesh. …Appellant. Versus Ashok Kumar and others. …Respondents. _______________________________________________________ Coram: Hon’ble Mr. Justice Deepak Gupta, Judge. Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the Appellant: Mr. Vivek Singh Thakur, Addl. Advocate General. For the Respondents: Mr. Virender Rathore, Advocate. ____________________________________________________ Per Rajiv Sharma, J. By way of this appeal, the State is seeking reversal of the judgment dated 28.11.1998 of the learned Additional Sessions Judge (I), Kangra at Dharamshala rendered in Sessions Case No. 19-K/1998, whereby respondents, who were charged with and tried for offences punishable under sections 302 read with section 34, 201 and 498 of the Indian Penal Code, have been acquitted. 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 2. Case of the prosecution, in a nutshell, is that on 23.11.1997 at 12 noon, DW-2 Sher Singh lodged report Ex.PW-7/B with police of Police Station, Kangra to the effect that Sarla Devi due to strained relations with her husband, committed suicide by setting her body on fire after pouring kerosene. Tulsi Ram, Sub Inspector, visited the spot and found the dead body of Sarla Devi lying on double bed in burnt condition in the room. He prepared inquest report Ex.PW-2/A and preferred an application for conducting postmortem on the dead body. He recorded statement of PW-1 Paras Ram, uncle of the deceased, as per Ex.PW-1/A. PW-1 Paras Ram narrated in Ex.PW-1/A that the marriage between accused No.1 Ashok Kumar and deceased Sarla Devi alias Indira was solemnized in the year 1992. She gave birth to a son. After one year of her marriage, all the accused persons started giving beatings to her without any rhyme or reason. Accused No.2 Udho Ram kept the son of deceased with him after one month of his birth due to which Sarla Devi was in great stress. Accused started maltreating the deceased. The matter was compromised in the local Panchayat on 24.12.1992. The reason for giving beatings to the deceased was that she had deformity and her husband wanted to remarry. In sequel to Ex.PW-1/A, FIR Ex.PW-7/A was registered. The matter was investigated by the police and the challan was put up in the Court after completing 3 codal formalities, under section 207 of the Code of Criminal Procedure. 3. Prosecution examined as many as fourteen witnesses in support of its case. Accused were examined under section 313 of the Code of Criminal Procedure. They have denied that a meeting of the Panchayat was held. Accused No.2 has denied that he kept child of Sarla Devi with him. Accused Ashok Kumar denied that he intended to remarry. They stated that they were innocent. According to them sowing of wheat was in full swing at the relevant time and they were busy for the last few days. According to them, except Sarla Devi, every body in the family was busy in sowing operations in the fields, which were at a distance of 1½ kilometers from their house and had gone there at 8.00 A.M. The deceased could not do work in the fields since her one arm was week. She used to cook meals or prepare tea etc. and supply the same as and when required. According to them, a child was sent to fetch water, who came running and informed that there was fire in the house. All of them rushed to the house and found Sarla Devi in burnt condition. DW-2 Pradhan, Sher Singh was contacted and asked to report the matter to the police. Accused Shrestha Devi has stated that she was married and was staying at the relevant time with her husband at Chandigarh. The trial court 4 acquitted the respondents-accused. Hence, this appeal by the State. 4. Mr. Vivek Singh Thakur, learned Additional Advocate General has strenuously argued that the prosecution has proved its case against the respondents- accused. 5. Mr. Virender Rathore has supported the judgment of the learned trial court. 6. We have heard the learned counsel for the parties and perused the record carefully. 7. Postmortem was conducted on the dead body of deceased by PW-2 Dr. D.P. Swami. He issued postmortem report Ex.PW-2/B. In his provisional opinion, the lady died of asphyxia due to ante mortem compression/injury to lower part of neck (throttling). The time between injury and death was 2 to 15 minutes and between death and postmortem was 20 to 36 hours. He gave the final opinion after perusing the chemical report dated 6.4.1998 Ex.PX. His final opinion also remained the same. 8. PW-1 Paras Ram is the uncle of the deceased. According to him, deceased was married with accused Ashok Kumar about six years back. She stayed in the matrimonial house for about 8/9 months and thereafter she was given beatings by the accused. They used to quarrel with her on petty matters. She visited the house of her 5 parents and narrated the incident to her parents. A complaint was lodged with the Panchayat at Kangra. The matter was compromised. Thereafter she stayed in her matrimonial house and gave birth to a male child about four years prior to her death. Accused Udho Ram snatched the boy forcibly, who was one month old, and took him to the place of his posting, i.e. Bhawarna. This act caused great stress to the deceased. Thereafter all the accused persons started maltreating her. She was taunted by the accused since she had fractured her arm in childhood. Due to this disability, according to PW-1, accused Ashok Kumar wanted to remarry. Kishori Lal, Pradhan, Gram Panchayat, Bandi intimated him on 23.11.1997 at 11.30 A.M. that Sarla Devi has been murdered by the accused and the dead body was burnt. He accompanied Kishori Lal and the parents of the deceased. Other persons of the village also went to the house of accused. He gave statement to the police Ex.PW- 1/A. He admitted that the compromise Ex.P-7 was entered into between the parties on 26.5.1995. He also admitted in his cross-examination that he had never complained regarding demand of dowry by the accused from Sarla Devi or from them. 9. PW-4 Swarna Devi is the mother of deceased. According to her, deceased was kept well for 7/8 months and thereafter, accused started quarreling with each other. All 6 the accused were giving beatings to her and were turning her out from her matrimonial house. The matter was compromised in the Gram Panchayat, Birta. One arm of the deceased was defective because she had suffered a fracture. The matter was also reported to the Deputy Commissioner and the bank authorities where accused No.1 was serving. The matter was again compromised. She gave birth to a son. The son was taken by her father-in-law to Bhawarna and this act disturbed her. She further stated that accused Ashok Kumar wanted to remarry. 10. PW-6 Kishori Lal is the Pradhan of Gram Panchayat, Bandi. He received telephonic message from police to the effect that daughter of Shiv Ditta named Sarla Devi, who was married with Ashok Kumar, was burnt. He passed that message to the parents of Sarla Devi deceased. Thereafter five/six persons and two/three ladies, including the parents of Sarla Devi, proceeded to the house of accused. Police had already reached there. The dead body was in naked condition and lying face downward. 11. PW-10 is Dr. Ajay Ram Parshad, who was Managing Director of the Kangra Central Cooperative Bank Limited. He had received two complaints from the wife of Ashok Kumar against him, i.e. Ex. P-5 and P-6. Wife (deceased) of Ashok Kumar was called by him on 16.5.1995 at Dharamshala. She was again called on 26.5.1995. The 7 matter was compromised on 26.5.1995 vide Ex.P-7. Compromise was signed by both the parties. 12. The prosecution has relied upon the statement of PW-1, PW-3 and PW-4 to prove the charge of cruelty, under section 498-A of the Indian Penal Code. PW-1 Paras Ram is the uncle of deceased. He has deposed that the relations between deceased and accused were cordial for 8/9 months after the marriage, however, thereafter they started giving beatings to her. She gave birth to a son. According to him, her father-in-law has taken away the boy to his place of posting, i.e. Bhawarna. It is difficult to believe that a person will take one month old boy to his place of posting. He has never requested the father-in-law of the deceased to handover the boy. PW-3 Shiv Ditta is the father of the deceased. He has corroborated the statement of PW- 1 to the effect that the deceased was kept properly for a period of 5/7 months of the marriage and thereafter she was maltreated. He has also stated that one month old boy was taken by accused No.2, i.e. father-in-law, of the deceased to his place of posting. He has admitted the correctness of compromise Ex.P-7. PW-4 Swarna Devi is the mother of deceased Sarla Devi. She has also deposed that the accused started maltreating her daughter after 7/8 months of the marriage. One arm of the deceased was defective because she had suffered fracture. She gave birth to a child, 8 who was taken away by accused No.2 to Bhawarna. PW-10 Dr. Ajay Ram Parsad was posted as Managing Director of the Central Cooperative Bank Limited. He had effected compromise between the parties Ex.P-7. PW-1, PW-3 and PW-4 are closely related to each other. They have not given the date, month or year when the deceased was maltreated. It is also not mentioned in Ex.P-5 dated 24.3.1995 that boy was snatched by father-in-law and taken to Bhawarna. It has also not been stated in Ex.P-5 that accused Ashok ever wanted to remarry or she was taunted by accused due to deformity. The allegations made by PW-1, PW-3 and PW-4 are not specific. It is also strange that neither PW-1, uncle of deceased, nor PW-3, father of deceased and PW-4, mother of the deceased, have ever visited Bhawarna to see the boy who according to them was taken by the father-in-law of the deceased to Bhawarana. They have never requested the father-in-law of the deceased to handover the boy. Consequently, the prosecution has failed to connect the accused persons with the commission of offence of cruelty, punishable under section 498-A of the Indian Penal Code. 13. Now, as far as section 302 and 201 of the Indian Penal Code, is concerned, the prosecution has miserably failed to connect the accused with the death of deceased. Case of the prosecution is that accused strangulated deceased Sarla Devi and thereafter put her on fire. The 9 defence of the accused is that sowing season of wheat was in full swing and the family members, except deceased, were in the fields. According to them, deceased could not work due to deformity and they had left in the morning at 8.00 A.M. to the fields which were at a distance of 1 ½ kilometers from their house. According to them, deceased used to cook the meals and prepare tea etc. On 23.11.1995, they sent a girl to fetch water and she informed them that there was fire in the house. Thereafter they rushed to the house and found the dead body of the deceased. The prosecution has failed to prove whether the strangulation injury was ante-mortem or post-mortem. It was necessary for the prospection to lead sufficient evidence to prove that accused were at home when the deceased died. The prosecution has not produced any eye witness to the incident. It is based on circumstantial evidence and the prosecution has failed to complete the chain. The duty was cast upon PW-14 Prem Singh, Investigating Officer to carry out the investigation to see whether the accused were at home or they were in the fields at the time of incident. It could be ascertained by him by questioning the people, who were working in the adjoining fields or neighbours. It has come in the statement of PW-14 that Sarla Devi was disabled, but it has not come in evidence whether she was able to work in the fields or not. It is also admitted case that the wheat sowing season was in full 10 swing and the accused were agriculturists. The prosecution has miserably failed to prove the presence of the accused in the house at the time of incident. 14. In view of the aforesaid discussion, we find no merit in the appeal and the same is dismissed. Bail bonds furnished by the accused-respondents are ordered to be discharged. (Deepak Gupta), J. (Rajiv Sharma), J. 14.6. 2010 *awasthi*