High Court of H.P.IN THE HIGH COURT OF HIMACHAL PRADESH,

SHIMLA

Cr.Appeal No.331 of 2008.

Reserved on: 24/09/2014.

Date of Decision:09.10.2014.

State of H.P. …..Appellant.

Versus

Prem Chand & Others ...Respondents.

Coram

The Hon’ble Mr. Justice Rajiv Sharma, Judge.

The Hon’ble Mr. Justice Sureshwar Thakur, Judge.

Whether approved for reporting? Yes.

For the Appellant: Mr.Ramesh Thakur, Assistant

Advocate General.

For the respondents: Mr.N.S.Chandel, Advocate.

_____________________ _____________________

Per Sureshwar Thakur, Judge

1. The instant appeal is directed against the

judgement of acquittal, rendered on 16.1.2008, by the learned

Additional Sessions Judge-II, Kangra at Dharamshala, in Sessions

trial No. 5/2007, whereby the respondents have been acquitted

for theirs having committed offence punishable under Sections

498-A and 306 IPC read with Section 34 IPC.

2. The prosecution story, in brief, is that on 6.11.2003

on receipt of telephonic information regarding death of a female

in suspicious circumstances at village Bandi, the police headed by

SI Prem Chand rushed to the spot after incorporating the same

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into the daily diary and the statement under Section 154 Cr.P.C of

one Shri Raghubir Singh was recorded. Raghubir Singh has

deposed in his statement that his daughter Reeta Devi was

married with Prem Chand resident of Village Bandi on 5.3.2003.

He further deposed in his statement that his wife had received a

telephonic information in the early morning that Reeta Devi had

died and thereafter he alongwith other villagers rushed to the

matrimonial house of Reeta Devi at village Bandi, where they

found her dead. He further disclosed in his statement that his

daughter had already disclosed 3-4 times about the beatings

being delivered by her husband and she was being beaten up at

the instance of brother and bhabhi of her husband. He further

disclosed that his daughter had been killed by giving beatings by

the accused persons. His statement was sent to the Police

station for registration of FIR and the dead body of the deceased

was taken into possession after inquest report and same was sent

for postmortem examination. The Doctor had opined the cause

of death as asphyxia due to antemortem hanging as no other

disease, injury or poison seen over the body. One Nawaar and

cloth lying on the spot also taken into possession and site plan of

the house of deceased was prepared after taking photographs of

the dead body. Opinion of Forensic Expert was sought in which

the Forensic Expert opined partial hanging antemortem in nature.

3. After completion of the investigation, challan, under

Section 173 of the Cr.P.C., was prepared and filed in the Court.

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4. The trial court charged the accused for theirs having

committed offence punishable under Sections 498-A and 306 IPC

read with Section 34 IPC, to which they pleaded not guilty and

claimed trial.

5. In order to prove its case, the prosecution examined

as many as 13 witnesses. On closure of the prosecution

evidence, the statements of the accused under Section 313

Cr.P.C. were recorded, in which they pleaded innocence. On

closure of proceedings under Section 313 Cr.P.C., the accused

were given an opportunity to adduce evidence in defence, and

they chose not to adduce any evidence in defence.

6. On appraisal of the evidence on record, the learned

trial Court, returned findings of acquittal in favour of the

accused/respondents.

7. The State of H.P. is aggrieved by the judgment of

acquittal, recorded by the learned trial Court. Shri Ramesh

Thakur, learned Assistant Advocate General, has concertedly and

vigorously contended that the findings of acquittal, recorded by

the learned trial Court, are not based on a proper appreciation of

the evidence on record, rather, they are sequelled by gross

mis-appreciation of the material on record. Hence, he contends

that the findings of acquittal be reversed by this Court, in the

exercise of its appellate jurisdiction and be replaced by findings of

conviction and concomitantly, an appropriate sentence be

imposed upon the accused/respondent.

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8. On the other hand, the learned counsel, appearing

for the respondents-accused, has, with considerable force and

vigour, contended that the findings of acquittal, recorded by the

Court below, are based on a mature and balanced appreciation of

evidence on record and do not necessitate interference, rather

merit vindication.

9. This Court with the able assistance of the learned

counsel on either side, has, with studied care and incision,

evaluated the entire evidence on record.

10. The first witness, who, stepped into the witness box

to prove the prosecution case, is, PW-1 Dr. D.P Swamy who had

conducted the post mortem examination of the deceased. In his

opinion comprised in his report, he has attributed the demise of

the deceased to antemortem hanging. He has denied in his

opinion the factum of death of the deceased being sequelled by

any injury or poison.

11. PW-2 Rahubir Singh deposes that the marriage of her

deceased daughter was solemnized with accused Prem Chand on

5.3.2003 at village Bandi. He continues to depose that on

5.11.2003 he received telephonic information at about 4 a.m. that

her daughter had died. On receipt of information he alongwith

his wife and other villagers rushed to the house of her daughter

Reeta Devi at village Bandi and found her daughter lying dead in

the room. He further deposes about the factum of his deceased

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daughter on hers visit to her parental home having disclosed to

him the factum of beatings delivered to her by the accused.

However, he has deposed that he had advised her daughter to

keep patience. He further deposes that on 4.11.2003 his

daughter had come to his house and she disclosed to him about

the beatings delivered by the accused on her person. He

further deposes that his deceased daughter disclosed to him that

she might be killed in her matrimonial home and on the next day

she was found dead and they came to know that his daughter

had died owing to hanging as there was piece of Nawar lying

there. He further deposes that piece of Nawar Ex. P-1 is the

same which was shown and taken into possession. He further

deposes that his statement was recorded by the police over which

he appended his thumb impression at encircled portion ‘A’.

During the course of his cross-examination he deposes that his

deceased daughter used to send letters from Patiala to him and

used to have telephonic conversation. It is stated to be

incorrect that his statement was not recorded by the police. He

deposes that his statement was recorded only once and he

appended his thumb impression over three places. It is stated

to be incorrect that in his statement before the police, he did not

mention the name of the brother and wife of the brother of

accused Prem Chand. He confronted with his statement Ex. PW-

2/A wherein the name of the brother and his wife are not

mentioned though it has been mentioned as Jeth and Jethani of

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the deceased. He further deposes that the letters of deceased

received by him were neither shown nor handed over to the

police. It is stated to be incorrect that the police had recovered a

piece of paper from the place where the deceased was found

dead and the same was taken into possession by the police. It is

also stated to be incorrect that he was is not in a position till

today as to what is the cause of death of his daughter. It is also

stated to be incorrect that the deceased was adamant to

accompany her husband.

12. PW-3 Shakuntala Devi deposes that her daughter disclosed

to her on hers visiting her parental house that accused Prem

chand, his elder brother and his wife used to give her beatings.

She further deposes that on 4.11.2003 the deceased had come to

their house for Tikka to her brother and on being asked she

disclosed that she was being beaten up by the accused. She

further deposes that on the next morning at about 4 a.m. she

had received telephonic information that her daughter had died.

Thereafter they rushed to her matrimonial home where she was

found lying dead in the house. She further deposes that she

might have been killed by the accused. It is stated to be

incorrect that her daughter was adamant to live with her

husband. It is stated to be correct that the marriage of her

deceased daughter with Prem Chand was with her consent. It

is also stated to be incorrect that her daughter had no talks with

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her when she visited their house before her death. It is stated

to be correct that they never made any written complaint against

the accused.

13. PW-4 Asha Devi deposes that deceased disclosed to her

that she was being beaten up by her husband, jeth and jethani.

She further deposes that accused Prem Chand used to give

beatings to the deceased under the influence of liquor. She

further deposes that on 4.11.2003 the deceased had visited her

parental house for Tikka to her brother where she disclosed that

she was being beaten up in her in-laws house and she was not

ready to go back to her matrimonial home. She further deposes

that they advised her to go to her matrimonial house and on the

next morning she was found dead there. In her cross-

examination she deposes that the deceased never wrote letter to

her, however the deceased made telephone conversation with

her from Patiala. She further deposes that there is no telephone

in her house. It is stated to be correct that the deceased met her

on 4.11.2003 on her visit to her parental home and was supposed

to go back on the next morning to Patiala.

14. PW-5 Bidhi Chand deposes that he was associated by the

police during the investigation. Piece of Nawar and one piece of

cloth were deposed to have taken into possession by the Police

under memo Ex. PW-5/A, which were put into a sealed packet

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and sealed with seal SK. He further deposes that he and Ujala

Devi signed the same.

15. PW-6 Kasturi Lal deposes that there is no facility of

telephone in the house of Shakuntla Devi and his telephone is

being used by them. On 5.11.2003 at about 4.00 a.m. a call for

Shakuntla Devi came over to his telephone and on attending the

same Shakuntla Devi started weeping and on his asking she told

that her daughter Reeta Devi had died. Thereafter he

accompanied the parents of Reeta Devi alongwith other villagers

to the house of Reeta and found her lying dead inside her house.

He further deposes that he came to know that she died as a

result of hanging.

16. PW-7 Jagdish Chand is the photographer. He deposes that

he clicked the Photographs comprised in Ex. PW-7/A to Ex. PW-

7/F and negatives thereof are Ex. PW-7/A-1 to Ex. PW-7/F-1.

17. PW-8 is the deposition of Ashwani Kumar who deposes

that during the investigation, he was associated by the police. He

continues to depose that he prepared the site plan comprised in

Ex. PW-8/A, which bears his signatures as well as signatures of

Assistant Engineer at encircled portion ‘A”. The site plan is

deposed to be the true and correct as per the original record.

18. PW-9 Purshottam Chand has turned hostile and on being

permitted by the Court, he came to be cross-examined by the

learned Public Prosecutor. During the course of his cross-

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examination he deposes that accused Prem Chand is his cousin.

He stated it to be correct that he heard a noise coming from the

house of the accused on 5.11.2003 at about 10 p.m. It is also

stated to be correct that he alongwith his wife and his Bhabi

Kailasho Devi rushed to the house of the accused after hearing

noise and when they reached in the house, they found the

deceased to be dead. It is stated to be incorrect that on making

inquiry about the cause of death, it was disclosed by the accused

that Reeta Devi died as a result of hanging. It is stated to be

incorrect that the accused used to give beatings to the deceased.

He denied that he is deposing falsely in order to save the accused

being his brotherhood.

19. PW-10 Inspector Sanjeev Chauhan deposes that he

prepared the final report after completion of the investigation.

20. PW-11 C . Rakesh Kumar deposes that on 6.11.2003 DD

No. 34 was incorporated on the receipt of telephonic information.

The copy of which is deposed to be bearing Ex. PW-11/A, which

is true and correct to the original.

21. PW-12 SI Prem Chand deposes that on receipt of

telephonic information on 6.11.2003 from PP Gagal regarding a

female died in suspicious circumstance at Village Bandi, he

proceeded to the spot accompanied by LC Sudha, HC Ashok and

C. Bhawani Singh. He deposes that he recorded the statement

of father of the deceased under Section 154 Cr.P.C comprised in

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Ex. PW-2/A which was sent to the police vide endorsement Ex.

PW-12/A for registration of FIR. He deposes that he prepared

inquest reports Ex. PW-1/B and Ex. PW-1/C. He further deposes

that on application Ex. PW-1/A he sought postmortem

examination of the dead body of the deceased. He has prepared

the spot map comprised in Ex. PW-12/B. He deposes that he

took into possession one piece of Nawar Ex. P-1 and another

piece of cloth Ex. P-2 under memo Ex. PW-5/A and put the same

into sealed packet duly sealed with seal SK in the presence of the

witnesses. He further deposes that he recorded the statements

of the witnesses. He continues to depose that the forensic expert

was also called on the spot on 14.11.2003. He further deposes

that on completion of the investigation, he handed over the case

file to the SHO.

22. PW-13 Dr. Suresh Sankhyan deposes that on 14.11.2003

at about 12. p.m. he visited the place of occurrence at the

instance of the police and observed the length of the ligature

material, low point of suspension, salivary stains report are

suggestive of partial hanging ante-mortem in nature. He further

deposes that low point of suspension results in partial hanging

which is usually suicidal in nature. His report has been deposed

to have comprised in Ex. PW-13/A.

23. PW-1 has proved the Post Mortem Report wherein he

recorded his observations qua the body of the deceased as

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subjected to post mortem examination by him. The said

observations are:-

“Antimortem Injury

Ligature Mark

Antemortem reddish colour around mid of neck front side, extending to the upper part of

the neck, near both the angles of mandible. Length and breath 7 inches X ½ inches,

below up-ward in direction because of evience grazed abrasion from below up-wards

including two extra ligature mark each about 1x1/2 inch on the left side of upper part of

the neck. Subcutaneous hemorrhages present below the ligature mark. The mark is not

seen on the back of the neck because intervening scalp hairs as shown in the diagram

Cranium and Spinal Cord

NAD and only congestion of brain and membranes.

Thorax

1. Walls, ribs and cartiges

2,3,4 and 5 respectively pleure, larynux and trachea, right and left lungs were found

congested and froth seen on cut section of lungs.

6. Heart and vessels Right side full of dark

reddish fluid.

Abdomen

1. and 2 Walls and peritoneum NAD and there was no smell alcohol i n

peritoneum cavity.

3. Mouth larynx and Esophagus was NAD

4. Stomach and its contents were found 300 cc of mildly digested food as rice,

pulses (Grams) pale in colour. No smell of alcohol or poison.

5. Small intestines and their contents were 20 CC of midly digested food in the

proximal 6 inches of small intestines.

6. Larger intestines and their contents was full of gases and faecal matter.

7,8,9 respectively Live spleen and kidney were shown congested.

10 Bladder empty and no peculiar smell.

11. Organs of generation NAD No evidence of pregnancy and other foul play.

Muscles, bones and Joints

NAD”

He has in his deposition proved his opinion comprised in it,

wherein he has attributed the demise of the deceased to

antemortem hanging. He has denied in his opinion the factum of

death of the deceased being sequelled by any injury or poison.

24. The father of the deceased while stepping into the

witness box as PW-2 has deposed in extremely vague and

generalized terms about the factum of his deceased daughter on

hers visiting her parental home having disclosed to him the

factum of ill-treatment or maltreatment meted out to her by the

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accused, comprised in theirs belaboring her. However, he has

deposed that he had advised her daughter to keep patience.

The complaints aforesaid made by the deceased to her father on

hers visiting the house of the latter are couched in vague and

generalized terms, they lack in specificity qua attributions to each

of the accused of specific acts of ill-treatment or maltreatment as

also lack in specificity and precision qua the date month and year

when such acts were purportedly perpetrated upon her by the

accused. Even otherwise the fact as disclosed by the deceased to

her father on hers visiting her father’s house, of the accused

belaboring her, is rendered unbelievable in the face of:-

(a) No complaint having been made by the father of the

deceased on his receiving information from his

deceased daughter on hers visiting him, wherein she

revealed to him the factum of hers being belabored

by the accused.

(b) Omission on the part of the father of the deceased as

well as the deceased to get the injuries examined

from a competent medical practitioner and to obtain

MLC from him displaying as well as corroborating the

factum of the deceased having been subjected to

belaboring by the accused too belies all or any of

aforesaid attributions made by PW-2 in his deposition

to the deceased

25. Moreover in his cross-examination the father of the

deceased has divulged the fact of the deceased havin g

communicated to him through letters about the factum of hers

being subjected to ill-treatment and maltreatment by the accused

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which purportedly instigated and actuated her to commit suicide,

however in the face of the letters aforesaid having omitted to be

handed over to the police by the father of the deceased, dispels

the credibility of the deposition of the father of the deceased of

his having been communicated by the deceased through letters

about the woes she was undergoing in her matrimonial home.

Consequently it emerges that hence the deceased did not

communicate to her father through letters about the sufferings

she was undergoing at her matrimonial home, which inference as

a natural corollary constrains a conclusion that hence, she was

not subjected to maltreatment or ill-treatment by the accused at

her matrimonial home. As a concomitant it has to be deduced

that attributions of maltreatment or ill-treatment made by PW-2

against the accused on revelations made to him by his deceased

daughter rather apparently are a mere concoction as well as an

invention and are to be construed to be incredible. The

prosecution urges that given the fact that the deceased visited

her parental home on 4.11.2003 on which date as divulged by the

testimony of PW-2 she disclosed to the latter the reasons qua the

woes which befell upon her at her matrimonial home, which

reasons while portraying the fact of hers being belabored by the

accused, hence, hers apprehending an imminent threat to her life

while constituting a credible disclosure qua purported instigatory

or actuatory factors in close proximity to the fateful incident

which occurred on 6.11.2003 constrain a conclusion qua the guilt

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of the accused. However the said argument necessitates its being

repulsed on the score that in case there was a disclosure by the

deceased to her father of an imminent threat to her life, it is

enigmatic as to what led the father of the deceased to persuade

her to leave for her matrimonial home. Consequently if she left

for her matrimonial home after 4.11.2003 it has to be hence

construed that she had left for that place as there was no grave

or imminent threat to her life as portrayed by PW-2 in his

deposition for if she faced such a grave threat to her life, PW-2

would have dissuaded her from departing from her parental home

to her matrimonial home.

26. The deposition of PW-3 the mother of the

prosecutrix corroborates the testimony of PW-2. However, again

her testimony alike the testimony of PW-2 being unspecific and

imprecise qua the attribution of acts of cruelty meted out by each

of the accused to the deceased besides lacking in specificity and

precision qua the date, time and year when such acts of ill-

treatment or maltreatment were meted by the accused to the

deceased. As such, on the strength of a vague and nebulous

deposition of PW-3 no capital can be drawn by the prosecution

that hence any of such unspecific or generalized acts actuated or

instigated the deceased to commit suicide. Moreover besides

when the potency and enormity thereof remain omitted to be

communicated and when potent evidence portraying the

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magnitude of the purported instigatory facts would alone have

constrained this Court to draw a conclusion against the accused,

omission thereof bolsters an inference that the inculpation of the

accused remains un-clinched. Besides for the reasons alike the

one meted by this Court for dispelling the strength of the

testimony of PW-2 while its purportedly conveying that the

accused hence belabored the deceased the testimony of PW-3

too necessitates its being discarded.

27. PW-4 too alike PW-2 and 3 has deposed in

generalized terms qua the purported acts of cruelty meted by the

accused to the deceased. She too deposed that when on

4.11.2003 the deceased visited her parental home and made a

disclosure to her of hers being belabored by the accused in her

matrimonial home and hers besides having also divulged to her of

hers facing an imminent threat to her life, which fact too does not

also attain credibility in the face of the aforesaid witnesses, too,

alike PW-2 her father, having omitted to despite the purported

gravity of threat to the life of the deceased, restrain her from

proceeding to her matrimonial home. In case no such restraint

was exercised upon the deceased by PW-2 against her

proceeding to her matrimonial home where she was purportedly

facing an imminent threat to her life, an apposite conclusion

which emerges forth is that she was permitted to leave for her

matrimonial home as the scenario there was neither grave nor

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alarming as espoused by PWs No. 3 and 4. Even otherwise she in

her cross-examination has deposed that the deceased had

telephonic conversations with her from Patiala wherein she

disclosed to her the tales of woes and sufferings which had beset

her at her matrimonial home. However the facts of any such

disclosure over telephonic conversations she had with the

deceased stands belied by the fact of hers having conceded in

her cross-examination of there being no facility of telephone at

her home. Consequently, it appears that this witness is inventing

and concocting facts while attributing a false role to the accused.

28. An analysis of the testimonies of the prosecution

witnesses made by this Court unveils the fact of the witnesses

having abysmally failed to, with precision and exactitude depose

qua the date and timings when the purported acts of ill-treatment

or maltreatment were perpetrated on the person of the deceased

by the accused , as a sequel on the strength of mere generalized

attributions, besides omission on the part of the prosecution

witnesses to depose that any of such purported acts acquired

such potency or enormity so as to constitute theirs comprising

instigatory or actuatory factors for the deceased to take her life,

constrains this Court not to draw a conclusion against the

accused. Moreover preponderantly when they also omitted to

depose qua the purported instigatory and actuatory acts being in

immediate proximity to the occurrence renders for the reasons

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aforesaid the attributions made by the prosecution witnesses to

the accused being both prevaricated and invented. As such, the

entire genesis of the prosecution story has abysmally omitted to

portray the factum of the deceased having been subjected to ill-

treatment or maltreatment at the instance of the accused or also

besides it has also omitted to emphatically project that the

accused at a time proximate to the fateful incident had

perpetrated upon her such acts of cruelty which were of such

enormity which ultimately drove the deceased to commit suicide.

In sequel for omission of portrayal by the prosecution of the

accused having hence committed potent instigatory or actuatory

acts, of such potency and magnitude which drove the deceased

to take her life, the learned trial Court has hence appreciated the

evidence in a mature and balanced manner and its findings, do

not necessitate interference. The appeal is dismissed being

devoid of any merit and the findings rendered by the learned trial

Court are affirmed and maintained. Records of the learned trial

Court be sent down forthwith.

( Rajiv Sharma )

Judge.

9

th

October, 2014. ( Sureshwar Thakur )

(TM/priti) Judge.

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