Himachal Pradesh High Court
State Of Himachal Pradesh vs Ajay Kumar & Another on 21 December, 2016
Author: Vivek Singh Thakur
Bench: Sanjay Karol, Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 508 of 2011 Judgment Reserved on: 19.10.2016 .
Date of decision: 21.12.2016
State of Himachal Pradesh. ...Appellant
Versus
Ajay Kumar & Another. ...Respondents
Coram
of
The Hon'ble Mr. Justice Sanjay Karol, Judge. The Hon'ble Mr. Justice Vivek Singh Thakur, Judge. Whether approved for reporting?1 Yes.
For the Appellant:
rt Mr.V.S. Chauhan, Additional Advocate General with Mr.Vikram Thakur and Mr.Puneet Rajta, Deputy Advocate Generals. For the Respondents: Mr.Rajesh Mandhotra, Advocate.
Vivek Singh Thakur J.
State has filed the instant appeal against the acquittal of respondents vide judgment dated 17.9.2011 passed by learned Additional Sessions Judge (II), Kangra at Dharamshala in case RBT S.C. No. 71-J/VII/2010/2007 in FIR No. 72 of 2006, registered under Sections 306, 498-A read with Section 34 of the Indian Penal Code at Police Station Jawali, District Kangra, H.P.
2. We have heard learned counsel for the parties and also have gone through the records of the case.
3. Prosecution case is that deceased Nisha Devi alias Monika was married to respondent No. 1 Ajay Kumar in the year 2004. Respondent No. 2, Shakuntla Devi was mother-in-law of deceased. After one year of marriage, respondents started maltreating deceased Nisha Devi for want of sufficient dowry in her marriage and respondents Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 15/04/2017 21:47:18 :::HCHP 2 Cr. Appeal No. 508 of 2011 used to beat deceased Nisha Devi and did not allow her to sleep on the cot for no cot was brought by her from her parental house. On 22nd March, 2006 at about 7:00 P.M., PW-1, Surestha Devi, mother of .
deceased heard about death of her daughter and inquired from one Shambhu Nath. After knowing about death of her daughter, PW-1, Surestha Devi along with her relatives and villagers went to the house of accused/respondents. On information, police also reached there. After of preparation of inquest report, dead body of deceased was sent for post mortem. Initially possibility of death due to asphyxia was not ruled out rt by doctor who conducted post mortem on 23.3.2006. However, as per chemical analysis report, deceased was found to have consumed Phosphate. In these circumstances, on 25.3.2006 FIR under Sections 306, 498-A read with Section 34 IPC was registered in pursuance to statement of PW-1, Surestha Devi. On conclusion of the trial, respondents were acquitted by the trial Court.
4. To prove allegations of dowry demand and maltreatment to deceased Nisha Devi by respondents, prosecution has relied upon statements of PW-1 Surestha Devi, PW-2 Darshan Singh, PW-3 Shambu Singh and PW-4 Tripta Devi and also complaint Ex. PW-1/B alleged to be written at the instance of deceased, Nisha Devi against the respondents.
5. Scrutiny of statements of prosecution witnesses PW-1, PW- 2, PW-3 and PW-4 reflects that allegations of demand of dowry is not proved on record, rather it has been contradicted by PW-1, Surestha Devi herself by admitting in cross-examination that it was correct that accused persons did not demand dowry at the time of solemnization of ::: Downloaded on - 15/04/2017 21:47:18 :::HCHP 3 Cr. Appeal No. 508 of 2011 marriage and also did not demand dowry from her after the marriage till the death of Nisha Devi. She admitted that they had not given any article in dowry till death of deceased Nisha Devi and respondent Ajay .
Kumar used to visit her house till death of her daughter. She admitted that on account of poverty, deceased was married to Ajay and she had also stated that accused Ajay Kumar had agreed for marriage by saying that he will not demand any dowry because of their poverty.
of
6. PW-2 Darshan Singh, uncle of deceased Nisha Devi stated that PW-1 and deceased Nisha Devi used to tell him that accused beat rt her for demand of dowry. However in cross-examination he stated that he did not know that deceased Nisha Devi did not like accused Ajay, but had married on account of poverty. He admitted that respondent Ajay Kumar used to visit house of in laws till death of his wife Nisha Devi.
7. PW-3 Shambu Singh is silent about the maltreatment and demand of dowry by respondents to deceased Nisha Devi or her mother.
8. Statement of PW-4 Tripta Devi is general in nature and she is not specific about time, place and date of dowry demand and torture as she has not stated any specific instance disclosed by deceased Nisha Devi to her in this regard. Her allegations are vague which cannot be basis for conviction for want of corroboration by substantial evidence on record.
9. In view of admission of PW-1 in her cross-examination, allegations of demand of dowry and maltreatment to deceased Nisha Devi by respondents stand shattered. There is no convincing and ::: Downloaded on - 15/04/2017 21:47:18 :::HCHP 4 Cr. Appeal No. 508 of 2011 confidence inspiring evidence on record proving allegations of maltreatment by respondents for dowry.
10. Document Ex. PW-1/B relied upon by prosecution is alleged .
to be written at the instance of deceased Nisha Devi. PW-1, Surestha Devi in her examination-in-chief has stated that deceased Nisha Devi was taken to the house of her sister Nimo Devi and along with Nimo Devi, they went to the house of somebody, where this complaint was of written. The name of that somebody was never disclosed nor Nimo Devi was examined by the prosecution, rather she was given up to avoid rt repetition. There was no evidence on record to show that in whose house, PW-1and Nimo Devi along with deceased Nisha Devi had visited and who scribed the document Ex. PW-1/B. Therefore, there was no question of repetition of the fact, rather Nimo Devi was a necessary witness to be examined to prove the fact, which was not stated by any other witnesses examined by the prosecution. PW-1 in her cross- examination has also admitted that this complaint (Ex. PW-1/B) was not disclosed to the police at the time of lodging of FIR.
11. Perusal of Ex. PW-1/B indicates that alleged signatures of Nisha Devi are not at a place where the same should have been in normal course after scribing application/complaint Ex. PW-1/B but the application appears to be manipulated or fabricated on blank paper already available with signature of Nisha Devi. There is suspicion about the genuineness of this document. Even PW-1, Surestha Devi, mother of deceased has not stated that this complaint was scribed at the instance of deceased Nisha Devi in her presence and even she did not disclose that who scribed this complaint. At the bottom of the ::: Downloaded on - 15/04/2017 21:47:18 :::HCHP 5 Cr. Appeal No. 508 of 2011 document, copy of this document has been stated to be forwarded to Pradhan Gram Panchayat, Sunet, Police Post Fatehpur and also to Police Station, Jawali, but no corresponding evidence has been led to .
corroborate or to prove the genuineness of this document by calling record from Gram Panchayat Sunet or Police Station, Jawali, therefore, this document cannot be considered to be reliable to infer that document/complaint Ex. PW-1/B was written at the instance of of deceased Nisha Devi for respondents were maltreating or beating deceased for want of dowry or otherwise.
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12. There is another fact which renders document Ex. PW-1/B doubtful. The inquest report Ex. PW-7/A was prepared immediately after death of deceased Nisha Devi in presence of PW-1, her relatives and villagers accompanying her. PW-2 Darshan Singh has been cited as a witness in inquest report as relative of deceased, who identified the deceased before sending her dead body for post mortem. It was the case of the prosecution that respondents did not disclose cause of death as poisoning immediately after death and had stated that deceased died because of stomach pain. However in inquest report, it has been clearly mentioned that deceased Nisha Devi had informed one Sarla that she had consumed some poison and had asked to save her and to call her husband. At that time no complaint was lodged regarding beating or maltreatment to deceased Nisha Devi for want of dowry, despite the fact that PW-1, PW-2 and other villagers were present on the spot. Sarla was an important witness, who was neither cited as a witness nor examined by the prosecution and her non-examination definitely invites adverse inference against the prosecution. ::: Downloaded on - 15/04/2017 21:47:18 :::HCHP 6 Cr. Appeal No. 508 of 2011
13. The prosecution has failed to explain the reasons for registration of FIR after three days of the death, particularly when there is no reference of any maltreatment and demand of dowry in inquest .
report Ex. PW-7/A, which was prepared immediately after death of deceased Nisha Devi before sending her dead body for post mortem. It indicates that registration of FIR against the respondents was an afterthought for extraneous reasons, best known to the prosecution. It of is a case of no specific and conclusive evidence against the respondents with regard to maltreatment or demand of dowry from rt deceased, her parents or relatives.
14. Learned Deputy Advocate General contended that in present case, death has taken place within seven years of the marriage and that too for demand of dowry and he further argued that even if the demand of dowry is not proved, then provisions of Sections 113-A and 113-B of the Indian Evidence Act, 1972 (for short the 'Act') for drawing presumption for abetment of suicide to deceased Nisha Devi by subjecting her to cruelty are attracted.
15. In our opinion Section 113-B is not attracted in the present case because for drawing presumption under Section 113-B of the Act, initial burden lies upon the prosecution to prove demand of dowry and only thereafter Court shall presume that respondents had caused dowry death. In present case, there is no confidence inspiring evidence on record to prove that respondents had ever made any demand of dowry or had maltreated deceased for such demand or otherwise. Therefore, Section 113-B of the Act is not applicable in the present case. ::: Downloaded on - 15/04/2017 21:47:18 :::HCHP 7 Cr. Appeal No. 508 of 2011
16. In so far as Section 113-A is concerned, under this Section the Court may presume having regard to all the other circumstances of the case that respondents had abetted deceased Nisha Devi for .
committing suicide. Scrutiny of statements of PW-1, PW-2, PW-3 and PW-4 do not disclose any cruelty on the part of respondents for want of dowry or otherwise and the evidence led by prosecution is not sufficient to hold that deceased Nisha Devi was ever subjected to any cruelty by of respondents for want of dowry or otherwise. Therefore, the provision of Section 113-A of the Act is also not attracted in the present case.
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17. Respondents have been acquitted by learned trial Court and presumption of innocence of respondents has been fortified. In such case burden of proving guilt of respondents heavily lies upon prosecution.
18. In view of above discussion, prosecution has failed to prove the case against the respondents by leading cogent, reliable, trustworthy and confidence inspiring evidence. Learned trial Court has correctly and completely appreciated the evidence on record and has rightly acquitted the respondents. No case for interference is made out in the present appeal, therefore, the same being devoid of any merit, is dismissed. Personal bail and surety bonds of respondents are discharged. Record be sent back to the trial Court.
(Sanjay Karol), Judge.
(Vivek Singh Thakur), Judge.
21st December, 2016 (KRS) ::: Downloaded on - 15/04/2017 21:47:18 :::HCHP