IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA: Cr. A. No.342/2000. Reserved on : 25th July, 2008 Date of Decision: 8th August, 2008 Bhupinder Singh and others. …Appellants. Versus: State of H.P .…Respondent. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for Reporting?1 Yes. For the petitioners: Mr.M.S.Chandel,Sr.Advocate with Mr. Rakesh Jaswal, Advocate. . For Respondent. Mr.Vivek Thakur, Addl. Advocate General. Sanjay Karol, J. The present appeal arises out of the judgment dated 27th June, 2000 passed by Additional Sessions Judge, Solan, District Solan, H.P. in Sessions Trial No. 3-NL/7 of 1998, convicting the appellants herein for the offence under Sections 498-A and 306 I.P.C. and sentencing them to undergo simple imprisonment for a period of three years for an offence under Section 498-A I.P.C. and a fine of Rs.3,000/- each and in default thereof to further undergo simple imprisonment for three 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 months; and seven years simple imprisonment for an offence under Section 306 I.P.C. each and a fine of Rs.10,000/- each and in default thereof to further undergo simple imprisonment for six months. The case of the prosecution in brief is that Smt. Kamaljeet Kaur, who was married to appellant No.1 Sh. Bhupinder Singh committed suicide on 12th October, 1997 by consuming poison. The marriage took place about six years prior to her death in village ‘Dhang Uperli’, Tehsil Nalagarh, H.P. All of the accused persons, namely, (1) Bhupinder Singh (husband), (2) Swaran Singh, (brother-in-law-Jeth), elder brother of accused No.1; (3) Dharam Kaur, (mother-in-law of deceased), mother of accused No.1 and 2 and (4) Karnail Kaur @ Raju, sister-in-law (Nanad) of the deceased, tortured, harassed, treated her with mental and physical cruelty, made illegal monetary demands and abetted her to commit suicide. On 12th October, 1997, on the basis of a telephonic information given by Shri Moti Ram (PW-3), Investigating Officer Shri Rikhi Ram (PW-14), proceeded to the matrimonial house of the deceased at Village ‘Dhang Uperli’, the site of the incident, and recorded the statement of the real brother of the deceased, Sh. Surmukh Singh (PW-1) under Section 154 Cr.P.C., on the basis of which Rukka was sent to the Police Station, Nalagarh, and F.I.R. No. 179 dated 12th October, 1997 (Ext.PW- 8/A) was registered with Police Station under Sections 498-A 3 and 306 I.P.C. The inquest report (Ext.PW-3/A) was prepared and the body was sent for post mortem to the Medical Officer, Rural Hospital, Nalagarh, H.P., where the post mortem was carried out. The post mortem report (Ext.PW-5/C) and Chemical Analyst report (Ext.PW-5/B) was taken on record by the police. The investigation was carried out and the statements of most of the witnesses were recorded on the date of the incident itself. The accused persons were arrested on 14th October, 1997. Supplementary statements of the witnesses were also recorded and with the completion of the investigation, the challan was presented in the Court for trial. All the accused persons were charged for an offence under Sections 306 and 498-A, IPC. In order to prove its case, the prosecution examined 14 witnesses and the statements of the accused persons under Section 313 Cr.P.C. were also recorded. In their defence, the accused persons also produced four witnesses. On the basis of the evidence and also the material on record, the court below held the accused persons guilty for the offences under Sections 498-A and 306 I.P.C. Mr. M. S. Chandel, learned Senior counsel has assailed the impugned judgment on the grounds that the conduct of the police in investigating the matter renders the prosecution story to be false and false implication of the accused persons is as a result of due deliberation and pressure of the 4 relatives of the deceased; the statements of the witnesses do not inspire confidence being full of improvements, material contradictions and self serving in nature; the circumstance of dowry demand was never put to the accused while recording their statements under Section 313 Cr.P.C. and, therefore, the conviction on the basis of the same is totally erroneous and illegal; in any event the evidence in relation to the alleged dowry demand is contradictory, unreliable, un-trustworthy and, therefore needs to be rejected, and the allegations of maltreatment, harassment and cruelty are extremely vague, unspecific, biased and conviction on the basis of false and unreliable evidence has resulted into miscarriage of justice. Mr. Vivek Thakur, learned Additional Advocate General has supported the judgment for the reasons set out therein and has emphatically argued that all the accused persons have been rightly convicted as there is cogent, clear, consistent material and evidence on record proving their guilt beyond reasonable doubt. According to him, faulty investigation would not vitiate the trial or render the prosecution version to be false and untrustworthy. He emphasized that unlawful demand and cruelties meted out by the accused persons stand sufficiently proved on record. The accused persons gave beatings and caused cruelty and harassment to the deceased by calling her 5 blackish and not suitable to be married in the family of the accused persons. I have heard learned counsel for the parties and also perused the record. The entire prosecution and defence evidence (oral) can be categorized as under:- CLOSE RELATIVES OF THE DECEASED: S/Sh.Surmukh Singh (PW-1) (brother), Uttam Singh (PW-2) (father), Hardev Singh (PW-4) (brother), Prem Singh (PW-11) (brother), Joginder Kaur (PW-12), sister-in-law and wife of PW-1. INDEPENDENT WITNESSES: S/Sh. Moti Ram (PW-3), Dr.Ajit Pal Jain (PW-6) and Bachan Singh (PW-9) OFFICIAL WITNESSES: Dr.C.L.Bhardwaj (conducted the post mortem), Sh. B.R.Rawat (PW-10) (Forensic Science Expert) and Prem Chand (PW-13) (produced the register of marriage). POLICE OFFICIALS: ASI Guler Chand (PW-8) (registered the F.I.R.) and Sh. Rikhi Ram (PW-14) (Investigating Officer). DEFENCE EVIDENCE CLOSE RELATIVE : Sh. Ujjagar Singh (DW-1) (maternal uncle). 6 INDEPENDENT WITNESSES: S/Sh.Balwant Singh (DW-2) (B.D.C.Member), Parveen Kumar (DW-3) and Rajinder Singh (DW-4) (Pradhan). REGISTRATION OF CASE AFTER DUE DELIBERATION AND RECORDING OF SUPPLEMENTARY STATEMENTS: From the deposition of Shri Moti Ram (PW-3) Numberdar, it is evident that he telephonically informed the police about the death of the deceased and the police visited the spot. The inquest report was prepared and the photographs taken in his presence. The dead body was sent for post mortem and he identified the same. Based on his information Shri Rikhi Ram (PW-14) along with H.C. Jagpal Singh, Constable Om Parkash, Constable Ram Avtar and HHG Ramesh visited the spot at village ‘Dhang Upperli’, where he recorded the statement (Ext.PW-1/A) of the complainant Sh.Surmukh Singh (PW-1) under Section 154 Cr.P.C. and sent the same along with the rukka (Ext.PW-14/A) through Constable Shri Ram Avtar for registration of the case to the police station, Nalagarh, and based on the same, F.I.R. (Ext.PW-8/A) was recorded by Sh. Guler Chand (PW-8). Ext.PW-1/A records the date and time of recording the statement and sending the rukka as 12th October, 1997 at 2.45 P.M. and F.I.R. (Ext.PW-8/A), records the time of registration to be 15.30 hours of the same date. From the post 7 mortem report (Ext.PW-5/C) it is evident that the examination of the body started at about 3 P.M. on 12th October, 1997. According to PW-14 he recorded the statements of PW-1, PW-2, PW-4 & PW-11, under Section 161 Cr.P.C. at the spot and the statement of PW-12 was recorded on 13th October, 1997. He also recorded the statement of Sh.Ujjagar Singh (DW-1). At the spot, he also noticed the presence of Rajinder Singh (DW-4) Pradhan and Balwant Singh B.D.C. Member (DW-2) in whose presence the dead body was handed over to accused No.1 for cremation. As per the version of PW-14 the rapat roznamcha recording the information received from Moti Ram that death had taken place under suspicious circumstances was attached with the challan, which fact was found to be incorrect and false and so recorded by the trial Court on 8th June, 2000 that the Rukka was not part of the record and had not been filed alongwith challan. It is a matter of record that on 12th and 13th October, 1997 statements under Section 161 Cr.P.C. of the close relatives of the deceased were recorded and sometime around 22nd November, 1997 again their supplementary statements containing major improvements from their earlier versions were recorded. There is no explanation as to why the said supplementary statements were so recorded. PW-14 has admitted that all the statements were recorded by him and not 8 by any Superior Officer. It is not the case of the complainant or the prosecution that the accused persons had tried to exercise undue influence or in any manner pressurized the police authorities from discharging their duties in accordance with law, fairly and fairlessly. Ext.PW-1/A does not record that any demand were made by the accused persons. In fact, it only records that the accused persons used to taunt the deceased that she was blackish in colour and not fit to be member of their house. Specific instances of cruelty and harassment were not mentioned in the complaint. Even in the first set of statements there were no such allegations. Further, PW-1 categorically deposed that on 12.10.1997 he reached the site of the incident at about 12 noon. His statement, however, was recorded by the Police in the Police Station (Nalagarh) at about 8 - 9 P.M. and before that he had conversation with his brother Shri Prem Singh (PW-11) who could reach Nalagarh from Delhi only in the evening. As per the version of PW-11 he reached Nalagarh at 4 P.M. and after the post mortem had been conducted, he along with all the relatives collected at the hospital at Nalagarh went to the police station at 11 P.M. and got the F.I.R recorded. Thus the prosecution story that the FIR was registered at 13.50 hours on 12.10.1997 is false and concocted. If the statement of PW-1 was recorded in the police station late in the evening and F.I.R. was recorded only around 11 P.M. then obviously the time (15.30 hours) 9 recorded in the F.I.R. is false and incorrect and the same has been anti-timed. The prosecution version and role of the Investigating Officer becomes all the more suspicious and doubtful as neither the rukka was placed on record nor the statement of the other police officials, namely, H.C. Jagpal Singh, Constable Om Parkash, Constable Ram Avtar and HHG Ramesh who had accompanied PW-14 to the spot was recorded or examined as witness in the Court. Further there is no explanation as to why the statement (Ext. PW-14/F) made by Ujjagar Singh (DW-1), recorded by Investigating Officer, was not verified from other witnesses. This only leads to the assumption that the Investigating Officer has not been fair in investigating the case. It is clear that the dead body was handed over to the accused for cremation. It is a matter of record that police station is at a walking distance of five minutes from the courts at Nalagarh and why a copy of the FIR recording an offence of such a serious nature was not presented to the Illaqua Magistrate on the same day itself has not been explained at all. The same was presented on the next day i.e. 13th October, 1997. The prosecution case appears to be a result of due deliberation. There was no ambiguity of any kind in the earlier version and the subsequent statements appear to have been recorded only to implicate the accused as there was no strong 10 incriminating material about cruelty or dowry, (illegal) monetary demand was before the investigating agency on the date of recording of the first set of statements. The FIR has been anti- timed after giving proper shape to the prosecution case. Major improvements have been made by the prosecution by receiving supplementary statements of the witnesses u/s 161 Cr.PC and the improved version, which was not there earlier, was recorded in the supplementary statements. No incriminating material about cruelty or dowry demand was disclosed against the accused persons. The entire prosecution case is a result of due deliberation rendering the case to be suspicious and doubtful. MARRIAGE NOT WITHIN SEVEN YEARS OF DEATH. Shri Prem Chand (PW-13) produced the certificate of marriage Ext. PW-13/A indicating the date of marriage of Bhupinder Singh, accused No.1 with Kamaljit Kaur deceased to be 10.5.1992. PW-4, PW-11 & PW-12 have also mentioned the date of marriage to be 10.5.1992. Importantly, the said certificate was not the part of the investigation record filed along with the challan in the Court. For the first time the same was sought to be placed on record by Sh. Prem Singh (PW-11) on 24.5.2000, while examining himself, which was not allowed by the Court and therefore was subsequently produced on record by PW-13 who is a Gram Panchayat Vikas Adhikari of Gram Panchayat, Dhang, Block Nalagarh, Distt. Solan, H.P. 11 The issuance of the certificate and the maintenance of the records of registration of the marriage do not inspire confidence. PW-13 has admitted that the Register does not bear the signatures of any person except himself and that too dated 7.6.2000. He admitted that the Register has not been signed by either the Secretary of the Gram Panchayat or any other higher authority. He also admitted that at the place of entry recording the date of marriage in question, there are no signatures in the remarks column either. The statement of this witness was recorded in the Court on 8.6.2000 and he signed the register only on 7.6.2000 in spite of the fact that he had been officiating as Gram Panchayat Vikas Adhikari, Gram Panchayat, Dhang for the last 1½ years prior to the said date. The State of Himachal Pradesh has framed the Himachal Pradesh Panchayati Raj (General) Rules,1997 and Rule 21(6) provides :- “21(6) The secretary of the Gram Panchayat shall also undertake registration of marriage and shall maintain a register in Form 10. the head of the family, or in his absence adult member thereof shall report about the marriage which has taken place in his family within 20 days of the marriage to the secretary or Pradhan or up-Pradhan of the Gram Panchayat concerned. Any person who fails, without any sufficient cause, to make a report under the rule shall be punishable by the Gram Panchayat with a fine which may extend to one rupee for every day of non compliance subject to maximum of fifty rupees. 12 The concerned Gram Panchayat may from time to time fix the rate of marriage registration fee through the resolution passed by it to that effect. Signature or thumb impression of the couple shall be taken in the register.” The entry in the register has not been made in accordance with the rules and the same does not bear the signatures of the persons who reported the matter or the couple whose marriage was to be registered. Under normal circumstances all formalities as stipulated under the rules ought to have been complied with much prior to the date of incident and also the certificate would have been collected by the Investigating Agency during the course of investigation. The witness does not state as to who had asked him to depose or issue the certificate in question. The prosecution had not collected it during the course of investigation. The same appears to have been got prepared only to raise statutory presumption under Section 113-A of the Indian Evidence Act, 1872. In fact as per the version of Shri Surmukh Singh (PW-1), real brother of the deceased, the marriage was not registered in the Panchayat. Therefore, there is contradiction on record rendering the registration of the marriage to be doubtful. Even the close relatives of the deceased have materially contradicted themselves on the exact date of marriage. PW-1 in the examination-in-chief deposed that the 13 marriage took place about six years prior to the incident but however, in his cross-examination he clarified that the age of the deceased at the time of marriage was 17 years and at the time of death, she was 24 years of age. Therefore, according to him, the marriage took place seven years prior to the incident. Shri Uttam Singh (PW-2), father of the deceased has yet given another version as according to him, the marriage took place eight years prior to the date when his statement was recorded on 13.9.1999. Thus, according to him the marriage took place sometime in September, 1991. No doubt, Shri Hardev Singh (PW-4) and Shri Prem Singh (PW-11) have stated that the wedding took place on 10.5.1992 but however, they have admitted that this fact was not disclosed to the police. Further PW-11 has admitted that the wedding cards were distributed and he had noted the date of marriage in the copy of Shagun. He admitted not having handed over the same to the police during investigation but has not explained why the same was not done. In my view, he has withheld relevant material and evidence of marriage card and copy of shagun which would have conclusively proved the exact date of marriage. Smt. Joginder Kaur (PW-12) only stated that the wedding took place on 10.5.1992. Importantly, she does not remember the age of the sons of the deceased. It is surprising that she remembers the exact date of marriage but does not 14 remember the age of the children and the fact that they are studying in the school or not. Her statement on this account does not inspire confidence. The statements of the witnesses materially contradict on the issue of exact date of marriage, thus, it cannot be said that the prosecution has been able to prove, beyond reasonable doubt, the exact date of marriage. The statutory presumption, in my view, cannot be pressed in the facts and circumstances of the present case. POLICE OFFICIALS According to Shri Guler Chand (PW-8), while being posted as ASI at Police Station, Nalagarh, he received Rukka Ext.PW-1/A through constable Ram Avtar on 12.10.1997 and recorded FIR Ext.PW-8/A and handed over the same to the constable for investigation. In cross-examination, he has admitted that he did not send a copy of the FIR to the Court. He showed ignorance with regard to the date, time and the nature of offence pertaining to DD entry No. 16 recorded at Police Station, Nalagarh. He also could not remember the entries recorded in the DD at about 9.30 a.m., the time when according to him the information about the incident in question was received by the police on telephone. He has obviously not stated the complete truth as having been posted as ASI in the Police Station Nalagarh he ought to have known the said fact. Further, the statement of this witness stands contradicted by the 15 statements of PW-1 & PW-11 according to whom FIR had not been registered till the time they had reached the police station i.e. about 11 p.m. on 12th October, 1997. The prosecution has not been able to show and prove the entry recording the information of the incident, telephonically received in the Police Station. As per the version of Sh. Rikhi Ram (PW-14) while being posted as ASI at Police Station, Nalagarh on 12.10.1997 information was given by PW-3 that wife of Bhupinder Singh had died and there was suspicion about her death. He along with HC Jagpal Singh, Constable Om Parkash, Constable Ram Avtar, HHG Ramesh & driver Joginder Singh visited the spot at village Dhang Uperli. He recorded the statement (Ext.PW-1/A) of PW-1 and along with the rukka sent the same through Constable Ram Avtar for registration of the case and FIR Ext.PW-8/A was recorded at Police Station. Inquest report Ext.PW-3/A and Ext.PW-14/B was prepared and the body sent for post mortem to the Regional Hospital, Nalagarh. Photographs of the dead body (mark A to H) were taken on record, spot map Ext.PW-14/C was prepared and searched the house but no poison or any incriminating material or article was found. After the post mortem, he handed over the dead body to accused Bhupinder Singh vide memo Ext.PW-14/E and the post mortem report Ext.PW-5/C was taken on record. He also got the report of the Chemical Analyst Ext.PW-5/B. He recorded the statements of the witnesses under Section 161 16 Cr.P.C., arrested the accused persons on 14.10.1997 and after completion of the investigation presented the challan in the Court on 23.11.1997. However, in cross-examination he categorically admitted that his earlier version that PW-3 had informed about the death having taken place under suspicious circumstances was not so recorded by him in the challan, but clarified that the same might have been recorded in the rapat roznamcha attached with the challan. This witness is obviously not stating the truth as while recording his deposition on 8.6.2000, the Court itself observed and recorded that neither the rapat Roznamcha was attached with the challan nor does it find mention in the list of documents filed along with the same. According to him, when he reached the spot at about 10.30 a.m. some relatives of the deceased had already arrived. He had noticed the presence of Rajinder Singh, (DW-4) Pradhan of the area in question and Balwant Singh (DW-2) BDC member and admitted having recorded the statement of Ujjagar Singh (DW-1) but did not verify the contents about the same from any other witness. There is no explanation as to why the same was not done. Proper investigation would have only unearthed true, correct and complete facts about the exact events leading to the incident, which for the reasons best known to him he chose not to do so. 17 He admitted that about 30 persons had assembled at the spot and only 2-3 persons of the village had stated that the deceased was maltreated by the accused. He accordingly, recorded the statement of PW-3 and Shri Arjun Singh in this regard. However, from the deposition of PW-3 this fact does not appear to be true, according to whom the deceased had only informed that the accused persons had ‘quarrelled’ with her. In his deposition, there is no whisper about the alleged maltreatment. Shri Arjun Singh for the reasons best known has not been examined by the prosecution. Further PW-14, has admitted that while getting his statement recorded on 12.10.1997, PW-3 had not disclosed that the deceased had met him twice before her death and informed him that accused Bhupinder Singh used to quarrel with her which fact was however, disclosed only on 22.11.1997 at the time of recording of the supplementary statement. He has admitted that the case put up by the prosecution was in fact never disclosed by the witnesses at the time of recording of their first statements under Section 161, Cr.P.C. His deposition with regard to the statements made by the prosecution witnesses, namely, Hardev Singh (PW-4), Surmukh Singh (PW-1), Uttam Singh (PW-2), Prem Singh (PW-11), Joginder Kaur (PW-12) needs to be reproduced as under:- “Hardev Singh did not disclose to me when his statement was recorded on 12.10.1997 that accused 18 Bhupinder Singh used to demand money for the purchase of truck from the deceased. It is correct to suggest that when the statement of Hardev Singh was recorded on 12.10.1997 he did not disclose to me that he along with his brother Surmukh and his father Uttam went to the matrimonial home of the deceased and tried to re-concile the matter four times with accused Bhupinder and her mother Dharam Kaur. Portion B to B of statement under section 161 Cr.P.C. mark A-4 of Hardev Singh was given by him to me. Bach Singh did not disclose before me that deceased was beaten by her in-laws prior one day to her death. It is correct to suggest that Prem Singh did not disclose to me that accused demanded Rs.50,000/- and Rs. 30,000/- when his statement was recorded on 12.10.1997 mark PW-11/a. Self stated that supplementary statement of Prem Singh was recorded on dated 18.10.1997 and he has disclosed that Rs.10,000/- were demanded by the accused. Prem