Himachal Pradesh High Court
State Of H.P vs Kamal Singh & Others ...Responden Ts on 1 June, 2016
Author: Sanjay Karol
Bench: Sanjay Karol, Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
Cr. Appeal No. 360 of 2010
Judgment reserved on: 26.04.2016
.
Date of Decision: June 1 , 2016
State of H.P. ...Appellant.
Versus
Kamal Singh & others ...Responden ts .
of
Coram:
The Hon'ble Mr. Justice Sanjay Karol, Judge.
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
rt
Whether approved for reporting? 1No.
For the Appellant : Mr. R.S. Verma, Addl. AG., with M/s
Vikram Thakur, Dy. AG., and J.S.
Guleria , Asstt. AG., for the
appellant-State.
For the Respondent: Mr. Naveen Bhardwaj, Advocate.
Sanjay Karol, J.
Assailing the judgment dated 15.03.2010, passed by the Additional Sessions Judge, Ghumarwin, District Bilaspur, H.P., in Sessions Trial No.26/7 of 2006, titled as State of Himachal Pradesh Versus Kamal Singh & others, whereby accused stand acquitted, State has filed the present appeal under the provisions of Section 378 of the Code of Criminal Procedure, 1973.
1Whether reporters of the local papers may be allowed to see the judgm ent?
::: Downloaded on - 15/04/2017 20:29:57 :::HCHP 22. It is the case of prosecution that on 03.05.2005, Kiran Bala, wife of accused Kamal Singh, consumed poison. She was immediately rushed to the .
hospital at Berthin, where she was attended to by Dr.Resham Singh (PW.8). Police was informed of the incident and ASI Vijay Kumar (PW.15) reached the spot.
On the basis of Rukka (Ex.PW.5/A), FIR No.50/05, dated of 04.05.2005 (Ex.PW.15/B) came to be registered against the accused at Police Station, Talai, District Bilaspur, H.P., under the provisions of Section 498-A of the Indian Penal rt Code. Since Kiran Bala was serious, she was referred to the PGI, Hospital, Chandigarh, where she expired on 06.05.2005. Investigation conducted by ASI Bodh Raj (PW.16), revealed that constantly the deceased was being subjected to cruelty by her husband Kamal Singh (accused No.1), Roshan i Devi, mother-in-law (accused No.2) and Suman Kumari, sister-in-law (accused No.3).
On account of cruelties, harassment and tortures, deceased consumed poison. With the completion of investigation, which prima facie revealed complicity of the accused in the alleged crime, Challan was presented by Inspector Rai Singh (PW.14) in the Court for trial.
::: Downloaded on - 15/04/2017 20:29:57 :::HCHP 33. Accused were charged for having committed offences punishable under the provisions of Sections 498-A and 306 read with Section 34 of IPC, to which they .
did not plead guilty and claimed trial.
4. In order to establish its case, in all, prosecution examined as many as seventeen witnesses.
Statements of the accused under Section 313 of the Code of of Criminal Procedure were also recorded, in which they took a plea of innocence and false implication. Accused Kamal Singh took the following defence:-
rt "I am innocent. I had come on leave from Army on 26.4.2005 to see my Uncle Sh. Dhani Ram who was serious because of cancer. He died on 28.4.2005. The entire family was performing his last right. Smt. Kiran wala my wife was short tampered and was suffering from vertigo (Chakkar Aate The). I and my family members never tortured and harassed her nor she was deprived of any daily need articles. The allegation of taking money by her or by me as well as the allegation of demanding of land to my sister by the side of road or otherwise from my in laws is totally false, baseless and absurd allegation levelled at the instance of by our enemies. Since our marriage which happened in the year 1995 till her death there was no differences between me and Kiran wala or with my any family members. She lived with me about 5 years with me in Army quarter with my children. I had constructed a big ::: Downloaded on - 15/04/2017 20:29:57 :::HCHP 4 house by spending Rs.7 lacs for my children and for our selves."
No evidence in defence was led.
5. Trial Court, after appreciating the testimony of .
the prosecution witnesses acquitted the accused. Hence the present appeal.
6. We have heard Mr. R.S. Vema, learned Additional Advocate General, on behalf of the State as of also Mr. Naveen Bhardwaj, learned counsel, on behalf of the respondents, and have also minutely examined the rt testimonies of the witnesses and other documentary evidence so placed on record by the prosecution. Having done so, we are of the cons idered view that no case for interference is made out at all. We find that the judgment rendered by the trial Court is based on complete, correct and proper appreciation of evidence (documentary and ocular) so placed on record. There is neither any illegality/infirmity nor any perversity with the same, resulting into miscarriage of justice.
7. It is a settled principle of law that acquittal leads to presumption of innocence in favour of an accused. To dislodge the same, onus heavily lies upon the prosecutio n. Having considered the material on ::: Downloaded on - 15/04/2017 20:29:57 :::HCHP 5 record, we are of the considered view that prosecution has failed to establish the essential ingredients so as to constitute the charged offence.
.
8. In Prandas v. The State, AIR 1954 SC 36, Constitution Bench of the apex Court, has held as under:
"(6) It must be observed at the very outset that we cannot support the view which has been expressed in several cases that the High Court has no power under S. 417, Criminal P.c., to of reverse a judgment of acquittal, unless the judgment is perverse or the subordinate Court has in some way or other misdirected itself so as to produce a miscarriage of justice. In our opinion, the true position in regard to the rt jurisdiction of the High Court under S. 417, Criminal P.c. in an appeal from an order of acquittal has been stated in - 'Sheo Swarup v.
Emperor', AIR 1934 PC 227 (2) at pp.229, 230 (A), in these words:
"Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness ::: Downloaded on - 15/04/2017 20:29:57 :::HCHP 6 of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in .
accordance with rules and principles well known and recognized in the administration of justice." "
9. Law with regard to cruelty as defined under Section 498-A of the Indian Penal Code and abetment to of commit suicide, so as to fall within the scope of Section 306 of the Indian Penal Code is now well settled.
10. It is a settled position of law that there should rt be reasonable nexus between cruelty and suicide. It has to be substantiated, established and proved on record.
Cruelty by itself would not amount to having committed an offence punishable under Section 498-A IPC. A reasonable nexus has to be established between cruelty and the suicide in order to make good the offence of cruelty under the penal laws. Cruelty has to be of such a gravity as is likely to drive a woman to commit suicide.
Suicide alone would not establish that it was occasioned on account of cruelty which was of sufficient gravity so as to lead a reasonable person placed in similar circumstances to commit suicide. Mere assumption or ::: Downloaded on - 15/04/2017 20:29:57 :::HCHP 7 demand of dowry by itself in given circumstances may not amount to cruelty. The harassment has to be with a definite object i.e. to meet any unlawful demand. Every .
act of cruelty is not punishable. There must be evidence to show that soon before the death the victim was subjected to cruelty or harassment. Prosecution has to rule out the possibility of natural or accidental death so of as to prove that the death had occurred otherwise than in normal circumstances. There must be existence of a proximate and live link between the effect of cruelty rt based on dowry demand and the concerned death. If the incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence.
11. In Girdhar Shankar Tawade vs. State of Maharashtra (2002) 5 SCC 177, the Apex Court has held that "the basic purport of the statutory provision is to avoid 'cruelty' which stands defined by attributing a specific statutory meaning attached thereto. In order to ascribe a meaning to the word 'cruelty' as is expressed by the Legislatures: Whereas explanation (a) involves three specific situations viz , (i) to drive the woman to ::: Downloaded on - 15/04/2017 20:29:57 :::HCHP 8 commit suicide or (ii) to cause grave injury or (iii) danger to life, limb or health, both mental and physical, and thus involving a physical torture or atrocity, in explanation (b) .
there is absence of physical injury but the Legislature thought it fit to include only coercive harassment which obviously as the legislative intent expressed is equally heinous to match the physical injury whereas one is of patent, the other one is la tent but equally serious in terms of the provisions of the statute since the same would also embrace the attributes of 'cruelty' in terms of rt section 498 (A)." .... .... ....
"Section 498-A is attributed only in the event of proof of cruelty by the husband or the relatives of the husband of the woman Admittedly, the finding of the trial court as regards the death negated suicide with a positive finding of accidental death. If suicide is left out, then in that event question of applicability of explanation (a) would not arise -
neither the second limb to cause injury and danger to life or limb or health would be attracted in any event the willful act or conduct ought to be the proximate cause in order to bring home the charge under section 498 (A) and not de-hors the same. To have an event sometime back cannot be termed to be a factum taken note of in the matter of a charge under section 498-A. ::: Downloaded on - 15/04/2017 20:29:57 :::HCHP 9 Explanation (b) of Section 498-A in no uncertain terms records harassment of the woman and the statute itself thereafter clarifies it to the effect that it is not every such harassment but .
only in the event of such a harassment being with a view to coerce her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand
- there is total absence of any of the requirements of of the statute in terms of section 498 (A)." .....
..... ......
... ... "Charges under sections 306 and 498-
A of the Indian Penal Code are independent of rt each other and acquittal of one does not lead to acquittal on the other."
"To have an event sometime back cannot be termed to be a factum taken note of in the matter of a charge under section 498-A The legislative intent is clear enough to indicate in particular reference to explanation (b) that there shall have to be a series of acts in order to be a harassment within the meaning of explanation (b) The letters by itself though may depict a reprehensible conduct, would not however, bring home the charge of section 498-A against the accused Acquittal of a charge under section 306, as noticed hereinbefore, though not by itself a ground for acquittal under section 498-A, but some cogent evidence is required to bring home the charge of section 498-A as well, without which the charge cannot be said to be maintained."::: Downloaded on - 15/04/2017 20:29:57 :::HCHP 10
12. In Ramesh Kumar vs. State of Chhattisgarh, (2001) 9 SCC 618, the Apex Court has also held that Sections 498-A and 306 IPC are independent and .
constitute different offences. Though, depending on the facts and circumstances of an individual case, subjecting a woman to cruelty may amount to an offence under section 498- A and may also, if a course of conduct, of amounting to cruelty is established leaving no other option for th e woman except to commit suicide, amount rt to abetment to commit suicide. However, merely because an accused has been held liable to be punished under section 498-A IPC it does not follow that on the same evidence he must also and necessarily be held guilty of having abetted the commission of suicide by the woman concerned.
13. In Sushil Kumar Sharma. Vs. Union of India & Ors. (2005) 6 SCC 281, the Apex Court has held as under:
"10. The object for which Section 498-A IPC was introduced is amply reflected in the Statement of Objects and Reasons while enacting the Criminal Law (Second Amendment) Act 46 of 1983. As clearly stated therein the increase in the number ::: Downloaded on - 15/04/2017 20:29:57 :::HCHP 11 of dowry deaths is a matter of serious concern. The extent of the evil has been commented upon by the Joint Committee of the Houses to examine the work of the Dowry Prohibition Act, 1961. In .
some cases, cruelty of the husband and the relatives of the husband which culminate in suicide by or murder of the helpless woman concerned, constitute only a small fraction involving such cruelty. Therefore, it was proposed to amend IPC, the Code of Criminal Procedure, of 1973 (in short "CrPC") and the Evidence Act suitably to deal effectively not only with cases of dowry deaths but also cases of cruelty to married women by the husband, in -laws and relatives. The rt avowed object is to combat the menace of dowry death and cruelty.
11. One other provision which is relevant to be noted is Section 306 IPC. The basic difference between the two sections i.e. Section 306 and Section 498 -A is that of intention. Under the latter, cruelty committed by the husband or his relations drag the woman concerned to commit suicide, while under the former provision suicide is abetted and intended.
19. The object of the provision is prevention of the dowry menace. But as has been rightly contended by the petitioner many instances have come to light where the complaints are not bona fide and have been filed with oblique motive. In such cases acquittal of the accused does not in all cases wipe out the ignominy suffered during and prior to trial. Sometimes adverse media coverage adds to the ::: Downloaded on - 15/04/2017 20:29:57 :::HCHP 12 misery. The question, therefore, is what remedial measures can be taken to prevent abuse of the well-intentioned provision. Merely because the provision is constitutional and intra vires, does not .
give a licence to unscrupulous persons to wreak personal vendetta or unleash harassment. It may, therefore, become necessary for the legislature to find out ways how the makers of frivolous complaints or allegations can be appropriately dealt with. Till then the courts have to take care of of the situation within the existing framework. As noted above the object is to strike at the roots of dowry menace. But by misuse of the provision a new rt legal terrorism can be unleashed. The provision is intended to be used as a shield and not as an assassin's weapon. If the cry of "wolf is made too often as a prank, assistance and protection may not be available when the actual "wolf appears. There is no question of the investigating agency and courts casually dealing with the allegations. They cannot follow any straitjacket formula in the matters relating to dowry tortures, deaths and cruelty. It cannot be lost sight of that the ultimate objective of every legal system is to arrive at the truth, punish the guilty and protect the innocent. There is no scope for any preconceived notion or view. It is strenuously argued by the petitioner that the investigating agencies and the courts start with the presumptions that the accused persons are guilty and that the complainant is speaking the truth. This is too wide and generalised a ::: Downloaded on - 15/04/2017 20:29:57 :::HCHP 13 statement. Certain statutory presumptions are drawn which again are rebuttable. It is to be noted that the role of the investigating agencies and the courts is that of a watchdog and not of a .
bloodhound. It should be their effort to see that an innocent person is not made to suffer on account of unfounded, baseless and malicious allegations. It is equally undisputable that in many cases no direct evidence is available and the courts have to act on circumstantial evidence. While dealing with of such cases, the law laid down relating to circumstantial evidence has to be kept in view."
14. In State of West Bengal Vs. Orilal Jaiswal rt (1994) 1 SCC 73, the Apex Court has held as under:
"In a criminal trial the degree of proof is stricter than what is required in a civil proceedings. In a criminal trial however intriguing may be facts and circumstances of the case, the charges made against the accused must be proved beyond all reasonable doubts and the requirement of proof cannot lie in the realm of surmises and conjectures. The requirement of proof beyond reasonable doubt does not stand altered even after the introduction of S. 498A, I.P.C and S. 113A of Indian Evidence Act. Although, the court's conscience must be satisfied that the accused is not held guilty when there are reasonable doubts about the complicity of the accused in respect of the offences alleged, it should be borne in mind that there is no absolute ::: Downloaded on - 15/04/2017 20:29:57 :::HCHP 14 standard for proof in a criminal trial and the question whether the charges made against the accused have been proved beyond all reasonable doubts must depend upon the facts and .
circumstances of the case and the quality of the evidences adduced in the case and the materials placed on record. The doubt must be of a reasonable man and the standard adopted must be a standard adopted by a reasonable and just man for coming to a conclusion considering the of particular subject matter.
The conscience of the court can never be bound by any rule but that is coming itself dictates the consciousness and prudent exercise of the rt judgment. Reasonable doubt is simply that degree of doubt which would permit a reasonable and just man to come to a conclusion. Reasonableness of the doubt must be commensurate with the nature of the offence to be investigated. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicions and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice, according to law."
[Emphasis supplied ]
15. In the very same decision the Apex Court further cautioned that the court should be extremely careful in assessing the facts and circumstances of each ::: Downloaded on - 15/04/2017 20:29:57 :::HCHP 15 case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by .
committing suicide. If it transpires to the court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and of such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the rt court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty.
16. In Arun Vyas & anr. Vs. Anita Vyas (1999) 4 SCC 690, the Apex Court has held that the essence of offence in Section 498-A is cruelty. It is a continuing offence and on each occasion on which the wife is subjected to cruelty, she would have a new starting point of limitation.
17. Whether one spouse has been guilty of cruelty to the other is essentially a question of fact. The impact of complaints, accusations or taunts on a person ::: Downloaded on - 15/04/2017 20:29:57 :::HCHP 16 amounting to cruelty depends on various factors like the sensitivity of the individual victim concerned, the social background, the environment, education etc. Further, .
mental cruelty varies from person to person depending on the intensity of sensitivity and the degree of courage or endurance to withstand such mental cruelty. In other words, each case has to be decided on its own facts to of decide whether the mental cruelty was established or not. [Mohd. Hoshan A.P. & Anrs. Vs. State of A.P. (2002) 7 SCC 414].rt
18. In State of A.P. Vs. M. Madhusudhan Rao (2008) 15 SCC 582, the Apex Court has held as u nder:
"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 ::: Downloaded on - 15/04/2017 20:29:57 :::HCHP 17 unlawful demand for property etc., that it amounts to "cruelty" punishable under Section 498-A I.P.C."
19. In Balram Prasad Agrawal Vs. State of Bihar & .
Ors. (1997) 9 SCC 338, the Apex Court has held cruelty to mean torture to be so unbearable in the common course of human conduct that a young lady having commitments to life could take a drastic steps to end her of life leaving behind her infant children in the lurch and at the mercy of the accused husband who was found to be rt in contemplation of remarrying.
20. In Arvind Singh Vs. State of Bihar (2001) 6 SCC 407, the Apex Court has held as under:-
"The word 'cruelty' in common Englis h acceptation denotes a state of conduct which is painful and distressing to another. The legislative intent in Section 498-A is clear enough to indicate that in the event of there being a state of conduct by the husband to the wife or by any relative of the husband which can be attributed to be painful or distressing. The same would be within the meaning of the section. Torture is a question of fact. There must be a proper effort to prove it."
21. Instigation is to goad, urge forward, provoke, incite or encourage to do "an act". To satisfy the requirement of instigation though it is not necessary that ::: Downloaded on - 15/04/2017 20:29:57 :::HCHP 18 actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable .
certainty to incite the consequence must be capable of being spelt out. The accused must by his acts or omission or by a continued course of conduct create such circumstances that the deceased is left with no other of option except to commit suicide in which case an instigation may have been inferred. A word uttered in the fit of anger rt or emotion without intending the consequences to actually follow cannot be said to be instigation. [Ramesh Kumar vs. State of Chhatisgarh, (2001) 9 SCC 618]
22. The concept of cruelty and its effect varies from individual to individual, also depending upon the social and economic status to which such person belongs.
"Cruelty" for the purposes of constituting the offence under the aforesaid section need not be physical. Even mental torture or abnormal behaviour may amount to cruelty and harassment in a given case. [Gananath Pattnaik vs. State of Orissa, (2002) 2 SCC 619] ::: Downloaded on - 15/04/2017 20:29:57 :::HCHP 19
23. Prosecution evidence has to be appreciated in the backdrop of the aforesaid legal position.
24. Out of seventeen prosecution witnesses, .
prosecution case is sought to be established through the testimonies of Prakash Chand (PW.1), Ranjit Singh (PW.2), Joginder Singh (PW.3), Sanjeev Kumar (PW.4), Smt. Roshani Devi (PW.5), Sita Ram (PW.6), Smt. of Kaushalya Devi (PW.7), Smt. Salo chna Devi (PW.9) and Anoop Singh (PW.12). Noticeably not only the independent witness Smt. Salochna Devi (PW.9), Ward rt Member, and neighbour Prakash Chand (PW.1) have not supported the prosecution, but also the grandmother of the deceased Smt. Kashaulya Devi (Naani) has deposed a version other than the one which the prosecution wants the Court to believe.
25. Uninfluenced of such fact, we proceed to examine the testimonies of the close relatives of the deceased for ascertaining as to whether they have been able to prove, beyond reasonable doubt, that the accused constantly subjected the deceased to cruelty which goaded her to take away her life.
::: Downloaded on - 15/04/2017 20:29:57 :::HCHP 2026. To begin with, we must record that prosecution witnesses have specifically not denied the suggestion of his defence so put up by the accused.
.
27. From the testimony of Ranjit Singh (PW.2), brother of the deceased, it is clear that parties stood married for more than ten years. Through the wedlock, three children were born, who were studying in a school.
of Accused Kamal Singh, who was serving in the Army had constructed a house in his village for his family.
According to this witness, though accused Roshani Devi rt and Suman Kumari had a common kitchen with the deceased, but used to reside separately. Witness admits that his sister used to visit frequently her parental house with the children. Such visits were more than once a month.
28. On the question of maltreatment, witness states that sometime after the marriage, it all started.
Deceased used to ask for dowry in the shape of land and demanded `20,000/-. On the point of harassment, he states that accused sold off jewelry of the deceased.
Now significantly , this witness admits not to have disclosed the factum of maltreatment, harassment or ::: Downloaded on - 15/04/2017 20:29:57 :::HCHP 21 dowry demand to anyone in the society, police or Panchayat. Why so? remains unsatisfactorily unexplained. He wants the Court to believe that on one .
occasion, he gave `500/- to his sister for the reason that her husband had not given any money. But then this version is belied from the fact that the husband who was serving in the Army had constructed his house for the of comfort of his family and that children were studying in a public school. Witness admits that houses of the Chairman, Zila Parishad and Up-Pradhan , are adjoining to rt his house and yet such fact was not disclosed to them.
His version of dowry demand, harassment and cruelty does not appear to be true. In fact, witness has contradicted with regard thereto, with which we shall deal hereinafter.
29. Now when we examine the tes timony of Roshani Devi (PW.5), mother of the deceased, we find her to have initially corroborated the version of Ranjit Singh (PW.2), but then later on contradicted it. According to Ranjit Singh, sometime after the marriage, deceased had disclosed the factum of harassment and maltreatment.
Whereas, according to the mother, it was after a period of ::: Downloaded on - 15/04/2017 20:29:57 :::HCHP 22 two years. The timing may or may not be relevant, but then even this witness admits not to have disclosed such acts of cruelties, harassment and dowry demand to .
anyone. In fact, this witness wants the Court to believe that she had given `20,000/- to the deceased in two installments by borrowing money. A sum of `10,000/-
was paid once and later another sum of `10,000/- was of paid four months prior to the incident n i question. She improvises her version by stating that it was her husband, who had taken the loan.
rt
30. Now when we examine the testimony of Sita Ram (PW.6), father of the deceased, though he has also referred to the demand of land and torture, but is silent about the sale of jewelry. Be that as it may, on the question of demand of `20,000/-, he has come out with another version. According to him, both he and his wife had taken loan and it was he, who had paid `20,000/- to his daughter in the year 2003. Hence all the three witnesses have given different version.
31. On the question of harassment and torture from the testimony of these witnesses, we find the allegations to be absolutely vague and unspecific. What ::: Downloaded on - 15/04/2017 20:29:57 :::HCHP 23 was the nature of harassment or cruelty , no one discloses. The deceased used to freely move around and her children were studying in a public school. Accused .
had constructed a separate and a big house for their comfort. His mother and sister were residing separately.
At no point in time, any report was lodged with any person.
of
32. Further on the question of payment of `20,000/-, we find, through the testimony of Sanjeev Kumar (PW.4) that it was he, who had given `20,000/- to rt the parents of the deceased. Now, who is speaking the truth, is not clear. According to this witness, it was he, who had from his own pocket paid `20,000/-. Whereas, according to the brother, it was the mother , who had given the money and according to the mother, she had taken loan from the society and given it in two installments, but according to the father, it was he, who had taken the loan from the society and given it in installments to the deceased. There is contradiction also with regard to the dates when such amounts came to be given.
::: Downloaded on - 15/04/2017 20:29:57 :::HCHP 2433. On the question of sale of ornaments, as already s tands observed, only the brother has referred to the same. What was the nature of such ornaments. Who .
had given them, remains undisclosed.
34. Whether the complainant party had any land, which was demanded by the accused is also not evidently clear from the record. It is not that accused was of houseless. The parties were married for over eight years and the deceased had been visiting the accused and staying with him at several places of his posting.
rt
35. An attempt was made through Joginder Singh (PW.3) to establish that on 03.05.2005, Kiran Bala spoke with him on the phone at Bhatinda and informed that accused Kamal Singh, who had come on leave, was physically assaulting her. He was sleeping in a separate room. Also other two accused harassed her. She further told him that if anything were to happen to her , he should take care of her children. He states that he had a word with accused Kamal Singh and asked him to desist from such acts. All this he told his mother-in-law, the mother of the deceased (PW.5). Later he was informed that deceased had consumed poison. We do not believe the ::: Downloaded on - 15/04/2017 20:29:57 :::HCHP 25 testimony of this witness to be inspiring in confidence, for he admits that "for the first time Smt. Kiranwala told me on 3.5.2005 that her husband Kamal Singh and mother-
.
in-law Roshani Devi torture her". For eight years she did not disclose anything to him. It is not that the witness was close to her or that she would often confide in him .
But then he contradicts himself by stating that "Kiranwala of did not disclose to me on 3.5.2005 or prior to that except Kamal Singh and her mother-in-law Roshani Devi some one else also torture her. Kiranwala had disclosed to me rt regarding harassment after three years of marriage", Though he improvises by stating that even earlier she used to make such a grievance. Now significantly this witness, who is the real brother-in-law of the deceased, was serving in the Army. He tries to justify his presence at Bhatinda by stating that he was on leave, but then he does not remember the Quarter number. He does not even remember the telephone number on which such call was made. No call records have been produced on record. His presence at Bhatinda and such conversation having taken place is extremely doubtful. He admits the deceased not to have disclosed the reason of torture.
::: Downloaded on - 15/04/2017 20:29:57 :::HCHP 26Nor did he feign ignorance thereof. Noticeably such fact was not disclosed by his mother-in-law to the police or to anyone of her family members. Significantly there is no .
reference of third accused. The witness appears to have been introduced only to establish the factum of torture "soon before" the incident.
36. Sudershan Kumar (PW.10) is the other brother of of the deceased, who wants the Court to believe that in the hospital, by making gestures, deceased disclosed that the accused had poisoned her. At that time, she was rt in a conscious state of mind. Apart from the fact that this version is a mere exaggeration, not to have been disclosed by him to anyone, much less the police, it stands contradicted from the testimony of the doctor and the police officials , according to whom, deceased was not in a fit state of mind to make any statement and she was in a semi-conscious state of mind with her pulse rate just 76 per minute. Such fact was not disclosed to anyone.
And prosecution case is also not that of murder.
37. It has also come on record that it was the accused, who had taken the deceased to the hospital first at Berthin and then at PGI, hospital, Chandigarh and ::: Downloaded on - 15/04/2017 20:29:57 :::HCHP 27 continued to attend her all throughout despite a complaint having been lodged against them. Also they performed last rights. Parties had been married for more .
than eight years and yet no complaint ever came to be lodged by anyone. It is not that either of the parties were illiterate or rustic villagers. They had free access to public authorities, including public representatives, who of were their immediate neighbours. There is some contradiction, even on that point. According to the mother of the deceased, matter was brought to the rt notice of Smt. Salochna (PW.9), Ward Member, who has not supported the prosecution, but then such fact also stands belied from other close members of the family.
Deceased was free to visit any place and there was no prohibition from anyone. The children were being looked after well, with the mother-in-law and the sister-in-law residing separately. Significantly, at no point in time, did the deceased leave her matrimonial house as a result of atrocities, cruelties or harassment caused to her by the accused, so also on the question of dowry demand.
Crucially, no witness of village Makra, was associated by the police. Continuous harassment and acts of cruelty ::: Downloaded on - 15/04/2017 20:29:57 :::HCHP 28 would have come to the notice of the neighbours, but none were examined. It is not that residents of the village expressed their reservation in deposing against .
the accused. In fact, children were the best persons to have disclosed true events which led to the unfortunate incident. They were school going and of intelligible age, yet not examined.
of
38. Thus, to our mind, prosecution has not been able to establish by leading clear, cogent, convincing and reliable piece of evidence so as to prove that accused in rt furtherance of their common intention subjected Kiran Bala (deceased) to cruelty as a result of which she died.
39. The Court belo w, in our considered view, has correctly and completely appreciated the evidence so placed on record by the prosecution. It cannot be said that judgment of trial Court is perverse, illegal, erroneous or based on incorrect and incomplete appreciation of material on record resulting into miscarriage of justice.
40. The accused have had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down by the Apex Court in Mohammed Ankoos and others versus Public Prosecutor, ::: Downloaded on - 15/04/2017 20:29:57 :::HCHP 29 High Court of Andhra Pradesh, Hyderabad (2010) 1 SCC 94, since it cannot be said that trial Court has not correctly appreciated the evidence on record or that .
acquittal of the accused has resulted into travesty of justice, no interference is warranted in the instant case.
For all the aforesaid reasons, present appeal, being devoid of merit, is dismissed, so also the pending of application(s), if any. Bail bonds furnished by the accused are discharged. Record of the trial Court be immediately sent back. rt (Sanjay Karol), Judge.
(Ajay Mohan Goel), June 1 , 2016. Judge.
(Purohit) ::: Downloaded on - 15/04/2017 20:29:57 :::HCHP