IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No. 1303 of 2001 (Old No. 1122 of 1992) Pan Singh & Others. .…. Appellants/Accused Versus State of U.P. …………… Respondent May 8, 2009 Mr. Navneet Kaushik, Advocate for the appellants. Mr. M.A. Khan, Brief Holder for the State/respondent. HON’BLE DHARAM VEER, J. This appeal, preferred by the appellants u/s 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.), is directed against the judgment and order dated 17.6.1992 passed by the Sessions Judge, Chamoli in Sessions Trial No. 8 of 1991, State v. Pan Singh & Ors, whereby each of the appellants/accused, viz., Pan Singh, Smt. Lila Devi and Balwant Singh have been convicted under Section 120-B, 201, 304-B & 498-A of Indian Penal Code, 1860 (for short, IPC) and each of them has been sentenced to R.I. for 7 years u/s 304-B IPC, R.I. for 2 years u/s 498-A IPC, R.I. for 1 year u/s 201 IPC and R.I. for a period of six months u/s 120-B IPC. All the sentences have been directed to run concurrently. 2. I have heard Mr. Navneet Kaushik, learned Counsel for the appellants/accused and Mr. M.A. Khan, learned Brief Holder for the State and have perused the entire material available on record. 2 3. On 11.5.2004, notices were issued to the appellants/accused after transfer of this case to this High Court from the Allahabad High Court. In compliance thereof, it has been reported that appellant no. 3 Balwant Singh has died on 5.4.2001 and death certificate to this effect has also been enclosed along with the report. Hence, the appeal of appellant no. 3 Balwant Singh stands abated. 4. The prosecution case, in brief, is that Balwant Singh Bisht (PW2), who is the father of victim Bhuwneshwri Devi @ Bhuwna Devi, lodged an FIR in the P.S. Karnprayag on 22.10.1990 with the averments that seven years ago, his daughter Bhuwneshwari Devi was married as per the Hindu rituals to appellant no. 1 Pan Singh, resident of village Partoli, P.C. Kankhul, Tehsil Karnprayag, District Chamoli. After the marriage, appellants/accused started torturing her daughter for dowry scolding her that nothing had been given by her parents in dowry. Bhuwneshwari Devi used to state these facts to her parents whenever she visited her maternal home in village Simali, District Chamoli. When her daughter was sent to in-law’s house by the Kanoogo, they again started treating her with cruelty and asked her to bring ten thousand rupees from her parents and also threatened to kill her in case of failure to pay the said money. On this his daughter came back to her maternal house. On 2.10.1990, appellant no. 1 Pan Singh, his father Balwant Singh i.e. appellant no. 3 appeal against whom has been abated, came to his house along with Patwari of village Simli, Jagdish Singh Dealer and Govind Singh Dealer (PW11), where a compromise Ex. Ka-3 was entered into between them and they had taken Bhuwneshwari Devi with them. On 19.10.1990 at about 5.30 PM, Govind Singh Dealer (PW11) of village Partoli informed the complainant Balwant Singh Bisht that his 3 daughter was missing since the night of 18.10.1990. Thereafter complainant came to his house and told this fact to his brother Prem Singh and Balwant Singh, the village Pradhan. On 20.10.1990, complainant along with his brother Prem Singh went to village Partoli and inquired from appellant no. 2 Smt. Lila Devi, the mother-in-law of Bhuwneshwari Devi about her whereabouts, who told them that she did not know anything about his daughter. When the complainant asked from Smt. Lila Devi about Pan Singh and his father Balwant Singh, she told that they had gone to plough their field. Then complainant Balwant Singh Bisht reached at the field and inquired about his daughter from them but they also pleaded ignorance and further told the complainant that appellant no. 1 Pan Singh would marry with another girl. Then the complainant Balwant Singh Bisht suspected that his daughter has been murdered and started to search her. He also made a missing report about his daughter on 20.10.1990 in the court of SDM, Karnprayag. On 22.10.1990, while searching her, he found the dead body of his daughter alongside the river Pindar near Khamiyan village. After properly identifying his daughter Bhuwneshwari Devi, he took out her dead body from the river and thereafter with the aforesaid averments he lodged the report Ex. Ka-2 against the appellants in PS Karnprayag on same day i.e. on 22.10.1990. 5. On the basis of the FIR Ex. Ka-2, chick FIR Ex. Ka-7 was prepared by Constable Clerk Rajendra Prasad (PW8) on 22.10.1990 at 5.30 PM. Necessary entries were made in the GD. Copy of GD is Ex. Ka-8. Thereafter inquest report of the dead body Ex. Ka-9 was prepared by S.I. D.R. Azad, who also prepared the letter Ex. Ka-10 to the CMO, Gopeshwar for conducting the post-mortem. Police form no. 13 Ex. Ka-11, specimen of seal Ex. Ka-12 and photo 4 lash Ex. Ka-13 were also prepared and after sealing the dead body, the same was sent for post-mortem. Post- mortem was conducted on 23.10.1990 at 4 PM by PW1 Dr. H.N. Srivastava, who prepared the post-mortem report Ex. Ka-1. 6. Since the said incident happened in the revenue circle, therefore, the Station Officer, Karnprayag sent the necessary papers of the case for investigation to the Naib Tehsildar Bhajan Singh Negi (PW7), who vide order Ex. Ka-4 entrusted the investigation of this case to Narendra Prasad Mishra, Supervisor Kanoongo (PW10). (In rural hilly areas of State of Uttarakhand, the Patwaris and certain revenue officials are vested with police powers vide U.P. Govt. Notification NO. 494/VIII-418-16 dated 7/3/1916). During the course of investigation, the I.O. Narendra Prasad Mishra (PW10) recorded the statement of the witnesses and after inspecting the place of occurrence, prepared the site plan Ex. Ka-15. After sometime i.e. from 13.12.1990, the investigation was transferred to the Naib Tehsildar Bhajan Singh Negi (PW7), who conducted the rest of the investigation and has also recorded the statement of the previous Investigating Officer, Narendra Prasad Mishra (PW10). After completing the investigation, he filed the chargesheet Ex. Ka-6 against the appellants/accused. 7. Learned Munsif Magistrate, Karnprayag, after giving the necessary copies of the documents to the appellants/accused as prescribed under Section 207 Cr.P.C., committed the case to the Court of Sessions on 28.1.1991. 8. On 11.2.1991, learned Sessions Judge framed the charges against the appellants/accused u/s 120-B IPC, 5 302/34 IPC, 201 IPC & 498-A IPC. The charges were read over and explained to each of the appellants/accused, who pleaded not guilty and claimed to be tried. The aforesaid charges were amended by learned Sessions Judge vide order dated 13.2.1992 and the appellants/accused were charged u/s 120-B IPC, 304-B IPC, 201 IPC & 498-A IPC. The charges were read over and explained to each of the appellants/accused, who pleaded not guilty and claimed to be tried. 9. To prove its case, prosecution has examined PW1 Dr. HN Srivastava, who has conducted the post-mortem on the dead body of deceased; PW2 Balwant Singh Bisht, the complainant and father of the deceased; PW3 Smt. Maheshi Devi; PW4 Jai Singh; PW5 Madan Lal; PW6 Sajji; PW7 Naib Tehsildar, Bhajan Singh Negi, the I.O. of the case who filed the chargesheet Ex. Ka-6; PW8 Constable Rajendra Prasad, who prepared the chick FIR Ex. Ka-7 and made necessary entries in the GD; PW9 Dr. Ashok Kumar Paliwal, who medically examined the appellant no. 3 Balwant Singh and prepared the medical report Ex. Ka- 14, PW10 Supervisor Kanoongo, Narendra Prasad Mishra, who initially investigated the case; PW11 Govind Singh and PW12 Smt. Dharma Devi. 10. Thereafter, statement of each of the appellants/accused were recorded under Section 313 of Cr.P.C. The oral and documentary evidence were put to them in question form, who denied the allegations made against them and stated that they have been falsely implicated in the case. However, in defence, they did not produce any oral evidence on record. But they have produced certain documents, viz., Ex. Kha-1, passbook of the joint savings account of appellant no. 1 Pan Singh and deceased Bhuwneshwari Devi; Ex. Kha-2, medical 6 treatment card of deceased Bhuwneshwari Devi from Sivananda Charitable Hospital, Tehri Garhwal; Ex. Kha-3, copy of the order of SDM/Prescribed Authority; Ex. Kha-4, copy of the statement of Jai Singh recorded on 18.8.1980 and Ex. Kha-5, copy of statement of appellant no. 3 Balwant Singh recorded on 5.7.1980. Both the statements Ex. Kha-4 & 5 were recorded in the court of SDM/Prescribed Authority in the case of State v. Mohan Singh. 11. After hearing learned counsel for the parties and appreciating the evidence on record, the learned Sessions Judge, Chamoli vide his judgment and order dated 17.6.1992 convicted and sentenced to the appellants/accused as discussed above. Against the aforesaid judgment and order dated 17.6.1992, the appellants/accused have preferred the present appeal. 12. Before any further discussion, it would be pertinent to mention the anti-mortem injuries found on the body of deceased Bhuwneshwari Devi, recorded by PW-1 Dr. H.N. Srivastava in the post-mortem report Ex. Ka-1, which are reproduced as under: “(1) Contusion 2cm x 2 cm on right knee. (2) Contusion 1.2cm x 1.2 cm on mid of dorsum of left foot. (3) Two contusions 1.3cm x 1.2cm on left libial bone aparting by 2cm each other. (4) Lacerated wound 4cm x 2cm x bone deep on bridge of nose and its injury multiple of normal causes. (5) Lacerated wound 1.2cm x 0.5cm x 0.5 cm on frontal of head above 5cm along from medial end of right eyebrow. 7 (6) Lacerated wound 1.5cm x 1cm x 0.5cm in front of head 2cm by the side of injury no. 5. (7) Lacerated wound 2cm x 0.5cm x bone deep in front of head 2cm righter to injury no. 6. (8) Multiple abraded contusion 4cm x 3cm to 3cm x 1.5cm on right side of fact. (9) Multiple abraded contusion 2cm x 1.5cm to 1.2cm on left side of face including chin. (10) Multiple abraded contusion 1.2cm x 1cm on dorsum of right hand. (11) Lacerated wound 4.5cm x 2.5cm x bone deep on occipit region.” 13. In post-mortem report Ex. Ka-1, cause of death has been attributed to the aforementioned anti-mortem injuries resulted by shock and hemorrhage. The prosecution has examined PW1 Dr. H.N. Srivastava, who has proved this post-mortem report and has stated that he had conducted the post-mortem of dead body of Bhuwneshwari Devi on 23.10.1990 at 4 PM. This witness has stated the age of the deceased to be about 26 years and further opined that she died two days before the date of post-mortem. He has further stated that deceased had died due to the anti-mortem injuries suffered on head. 14. PW2 Balwant Singh Bisht, who is the complainant and father of the deceased, in his deposition has reiterated the averments made in the FIR Ex. Ka-2. 15. PW3 Smt. Maheshi Devi who is resident of village Simli has stated that in the night of 5 gate (as per local Garhwali calendar 5 gate means the 18th day of the month) when she came outside the house, she had seen appellants/accused Pan Singh & Balwant Singh carrying something which was tied up. She has also stated that they did not reply to her when she asked ‘who is that’. She 8 has further stated that they were carrying something wrapped in dhoti in the manner a dead body is lugged. She has also stated that lateron she did narrate this incident to complainant Balwant Singh Bisht, the father of the deceased on 3 gate. She has stated in her cross- examination that she belonged to village Simli and that she has seen village Partoli where a lot of families were living and that she had no knowledge of any other family of village Partoli. She has further stated that 25-30 families of Harijans and about same number of families of higher castes were living there. Sanskrit Pathshala was also situated there where students used to stay in the night. The house of Gram Pradhan Dinkar was also situated behind her house and Patwari also resided there in her vicinity. 16. PW-4 Jai Singh, who is resident of village Partoli, has stated that in the month of Kartik, he had gone to the house of appellant/accused Balwant Singh and had inquired about the deceased Bhuwneshwari Devi from him, who told him that she was in her room and asked me to talk to her. Thereafter he met Bhuwneshwari Devi in her room, who told him that he should get her property partitioned and he assured her that the partition would be done by the next morning. When he visited her house next day, the deceased was at the house. Thereafter on 3 gate, wife of Balwant Singh (appellant no. 2, Lila Devi) came to his house and told his son Govind Singh (PW11) that the deceased had ran away from the house in the morning and asked him to search her. 3-4 days thereafter, the dead body of Bhuwneshwari Devi was found. 17. PW5 Madan Lal has stated that he was posted as Patwari in village Simli in the month of October, 1990. On 2.10.1990, appellant no. 1 Pan Singh and the complainant 9 Balwant Singh Bisht (PW2) had informed him that they had compromised the matter and thereafter he prepared the compromise deed Ex. Ka-3. After the compromise, the appellant no. 1 Pan Singh had taken his wife Bhuwneshwari Devi with him at his house. This witness, in his cross-examination, has stated that no complainant regarding demand of dowry was made by the father of the deceased Balwant Singh Bisht (PW2) at the time of compromise. 18. PW6 Sajji has stated that he had gone to village Paletha Gwad to purchase buffalo. The house of appellant no. 3 Balwant Singh was situated at some distance from there. At about 9.10 in the night, he heard noise coming from the house of appellant/accused Balwant Singh. Lateron he came to know that wife of appellant/accused Pan Singh had died. In the cross-examination, this witness has stated that he lived in village Tatasu. He had gone to village Gwad from where he heard the noise. He has stated the distance between village Partoli and village Paletha Gwad to be 10 miles. 19. PW7 Bhajan Singh Negi, the second I.O. of the case has stated that on 22.10.1990 he was posted as Naib Tehsildar of Karnprayag Tehsil. Village Simli and Partoli come under Karnprayag Tehsil. On 23.10.1990, he received the letter dated 22.10.1990 of the Station Officer, Karnprayag on which he entrusted the investigation of this case to Kanoogo Narendra Prasad (PW10). That order is Ex. Ka-4. He also received FIR, copy of GD, panchayatnama, post-mortem report Ex. Ka-1 from the PS Karnprayag, which he transmitted to PW10 Narendra Prasad Mishra, who initially conducted the investigation. On 13.12.1990, he himself taken over the investigation of 10 this case and after completing the investigation, he filed the chargesheet Ex. Ka-6 against the appellants/accused. 20. PW8 is Rajendra Prasad, who has stated that on 22.10.1990 he was posted as Constable Clerk in PS Karnprayag. On the basis of report Ex. Ka-2, he prepared the chick FIR Ex. Ka-7 on that day i.e. on 22.10.1990 at 5.30 PM. Necessary entries were made in the GD. Copy of GD is Ex. Ka-8. He has further stated that S.I. Data Ram had prepared the panchayatnama, letter addressed to CMO, police form no. 13, specimen of seal and photo lash, which are Ex. Ka-9 to Ka-13 respectively. 21. PW9 Dr. Ashok Kumar Paliwal has stated that he had medically examined the appellant no. 3 Balwant Singh on 27.10.1990 at 10.50 AM and thereafter prepared the medical report Ex. Ka-14. 22. PW10 is Narendra Prasad Mishra, Supervisor Kanoongo, who initially investigated the case. He ha stated that he had received the sealed bundles of the clothes of the deceased, Ex. 1. He has also proved the site plan Ex. Ka-15, which was prepared by him. During the course of investigation he had also taken into possession the gulband Ex. 2 from the appellant no. 2 Lila Devi. All the appellants/accused were arrested by him during the course of investigation. He also got appellant no. 3 Balwant Singh medically examined on 27.10.1990 at Government Hospital, Karnprayag and that medical report is Ex. Ka-14. He also recorded the statement of some of the witnesses during the course of investigation. Lateron investigation of this case was transferred to PW7 Bhajan Singh Negi, Naib Tehsildar. 11 23. PW11 is Govind Singh, who has stated that appellant no. 3 Balwant Singh is his uncle in relation. He has further stated that appellant no. 1 Pan Singh was in army service who had come to his house on leave before the said incident. He has also stated that compromise Ex. Ka- 3 had taken place before him in the Sasural of appellant/accused Pan Singh when he had gone there along with Pan Singh and other persons and that he had also signed on that compromise. After the compromise, wife of Pan Singh had come along with him at his house in village Partoli. Wife of Pan Singh had stated at that time that their property was to be partitioned. He has further stated that in the morning of 19.10.1990, appellant no. 2 Lila Devi had come to his house, who told him that her daughter-in-law Bhuwneshwari Devi was missing from 2.30 to 3 AM and had requested him to trace her out. He gave this information to his father accordingly and thereafter went to village Simli and also informed the father of the deceased Balwant Singh Bisht (PW2) accordingly, who told him that his daughter is dead. 24. PW12 is Dharma Devi, who has stated in her deposition recorded on 28.11.1991 that appellants/accused Balwant Singh and his wife Lila Devi were known to her. She had gone to their house a year ago in connection with the delivery of wife of Sain Singh, S/o appellant/accused Lila Devi having called by her for that purpose. At that time, only Lila Devi and her daughter-in- law who was expecting (wife of Sain Singh) were in the house and nobody else was there. 25. After that, the statements of the appellants/accused were recorded under Section 313 of Cr.P.C. The oral and documentary evidence were put to them in question form, who denied the allegations made against them and stated 12 that they have been falsely implicated in the case. However, in defence, they did not produce any oral evidence on record. But they have filed certain documents, viz., Ex. Kha-1, passbook of the joint savings account of appellant no. 1 Pan Singh and deceased Bhuwneshwari Devi; Ex. Kha-2, medical treatment card of deceased Bhuwneshwari Devi from Sivananda Charitable Hospital, Tehri Garhwal; Ex. Kha-3, copy of the order of SDM/Prescribed Authority; Ex. Kha-4, copy of the statement of Jai Singh recorded on 18.8.1980 and Ex. Kha-5, copy of statement of appellant no. 3 Balwant Singh recorded on 5.7.1980. Both the statements Ex. Kha-4 & 5 were recorded in the court of SDM/Prescribed Authority in the case of State v. Mohan Singh. 26. Learned Counsel for the appellants Sri Navneet Kaushik has argued that on the basis of the evidence discussed above, the prosecution has not proved the case against the appellants/accused beyond reasonable doubt. I find substance in the argument of learned Counsel for the reasons being discussed hereafter. 27. Appellants/accused have been convicted u/s 304-B IPC, 498-A IPC, 201 IPC and 120-B IPC and, therefore, before any further discussion, it would be appropriate to quote these sections for the sake of convenience and the same are reproduced as under: “304B. Dowry death.—(1)Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death. 13 Explanation.—For the purpose of this sub- section, “dowry” shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961). (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life. 498A. Husband or relative of husband of a woman subjecting her to cruelty.—Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.—For the purpose of this section, “cruelty” means— (a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing 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. 201. Causing disappearance of evidence of offence, or giving false information to screen offender.—Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false; if a capital offence.—shall, if the offence which he knows or believes to have been committed is punishable with death, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; 14 if punishable with imprisonment for life.— and if the offence is punishable with imprisonment for life, or with imprisonment which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; if punishable with less than ten years’ imprisonment.—and if the offence is punishable with imprisonment for any term not extending to ten years, shall be punished with imprisonment of the description provided for the offence, for a term which may extend to one-fourth part of the longest term of the imprisonment provided for the offence, or with fine, or with both. 120B. Punishment of criminal conspiracy.— (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence. (2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.” 28. The evidence adduced on record has to satisfy the necessary ingredients provided under the aforesaid sections of IPC for sustaining the conviction and in the aforementioned factual backdrop, I have to consider as to whether a case has been made out for conviction of the appellants under these sections of IPC. 29. The essential ingredients for proving the offence under Section 304-B IPC are (i) death of a woman must have been caused by any burns or bodily injury or otherwise than under normal circumstances; (ii) such 15