IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 151 of 1996 and Criminal Appeal No. 43 of 1997. Judgment reserved on : 29.3.2010. Date of Decision : July 24 , 2010 1. Criminal Appeal No. 151 of 1996 Surinder Kumar Appellant Versus State of Himachal Pradesh Respondent 2. Criminal Appeal No. 43 of 1997 State of Himachal Pradesh Appellant Versus Capt. K. J. S. Parmar and others Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes. Criminal Appeal No. 151 of 1996 For the appellant : Mr. Vinay Thakur, Advocate, for the appellant. For the respondent : Mr. Vivek Thakur, Addl. Advocate General for the respondent/State. Criminal Appeal No. 43 of 1997 For the appellant : Mr. Vivek Thakur, Addl. Advocate General for the appellant/State. For the respondent : Mr. Vinay Thakur, Advocate, for the respondents. Sanjay Karol, J. Vide judgment dated 19.7.1996 passed by the learned Addl. Sessions Judge (2), Kangra at Dharmshala, H.P. in Sessions Case Whether reports of Local Papers may be allowed to see the judgment? 2 No. 11-D/VII/94, accused No. 2, 3 and 4 stands acquitted and accused No. 1 convicted for having committed offences punishable under Sections 498-A and 306 of the Indian Penal Code. Accordingly he has been sentenced to undergo rigorous imprisonment for a period of one year and pay a fine of Rs. 2000/- for having committed an offence punishable under Section 498-A IPC and undergo rigorous imprisonment for a period of five years and pay fine of Rs. 5000/- for having committed an offence punishable under Section 306 IPC. In the event of default of payment of fine he is to further undergo rigorous imprisonment for a period of six months. 2. Criminal Appeal No. 43 of 1997 has been filed by the State, and Criminal Appeal No. 151 of 1996 has been filed by accused No. 1 assailing the impugned judgment for different reasons. 3. As per the case of the prosecution Smt. Savita Devi was married to Surinder Kumar (accused No. 1) on 19.2.1992. Capt. K. J. S. Parmar (accused No. 2) is the father of accused No. 1, Chanchla Parmar (accused No. 3) is the wife of accused No. 2 and Sarita Parmar (accused No. 4) is the sister of accused No. 1. At the time of marriage, as per the demands of the accused persons parents of Smt. Savita Devi had given dowry articles. After the marriage Smt. Savita Devi was tortured and harassed. She was ill- treated for having brought insufficient dowry. Dowry demands were made by the accused persons. Accordingly with the intervention of her parents she was brought back on 19.3.1992. At the time of 3 separation an agreement dated 19.3.1992 (Ext. D-1) was also executed between the family members of the parties. Thereafter Smt. Savita Devi continued to reside with her parents. Smt. Savita Devi who was working as a staff nurse was transferred to Palampur where accused No. 1 alongwith his “gundaas” continued to harass her which caused mental tension to her. Accused No. 1 also leveled false allegations pertaining to her character. Fed up of the harassment caused by the accused persons, on 17.8.1992 at about 5.30 p.m. Smt. Savita Devi set herself on fire by sprinkling kerosene oil. At that time she was in the house of her mother at Dharamshala. Her brother Sh. Harminder Singh (PW-5), neighbour Dr. Atul Mahajan (PW-2) and his wife broke open the window and the door of the house and extinguished the fire. With 98% burn injuries she was immediately shifted to the District Hospital at Dharamshala where she was given medical treatment. The hospital authorities informed the police of the incident vide document Ext. PW 11/B. Sub Inspector Sh. Suresh Kumar (PW-12) arrived at the spot and moved an application Ext. PW 11/C, seeking permission of the Doctor for recording the statement of the patient which was given. The Sub Divisional Magistrate Dharamshala, Sh. R. D. Dhiman (PW-1) reached the spot and recorded her statement (Ext. P-1) in the presence of PW-2. The said statement was sent to the police station, Dharamshala where F.I.R. No. 252 of 1992 (Ext. P- 12) dated 17.8.1992 was recorded under Section 498-A IPC. PW-12 further carried out the investigation and visited the spot of crime. 4 There, from the purse of Smt. Savita Devi, he recovered one letter (Ext. P-8) written by her which was taken into possession vide seizure memo (Ext. P-7) dated 18.8.1992, witnessed by Sh. Harminder Singh (PW-5) and Sh. Sunil Thakur. Other articles from the spot were also taken into possession. Smt. Savita Devi ultimately succumbed to her injuries and expired in the hospital on 21.8.1992. Inquest report (Ext. P-3) dated 21.8.1992 was prepared by Sub Inspector Gulab Singh (PW-9). He also made a request for getting the post mortem done which was conducted by Dr. Ramakant Mahajan (PW-3) and Report (Ext. P-5) was taken on record. Further, investigation in part was carried out by Sh. S. P. Verma (PW-14) who took into possession complaint (Ext. P-14), allegedly written by the deceased to the Pradhan, vide memo (Ext. P-11) dated 3.9.1992 witnessed by one Sh. Onkar and Duni Chand. The said complaint was handed over by the father of the deceased Sh. Sudarshan Singh (PW-6). The police also took into possession diary (Ext. P-9) belonging to the deceased containing her hand writing. The same was handed over by PW-5 to the police on 23.11.1992 vide memo Ext. P-10 witnessed by Sh. Ajay Kumar and Sh. Vijay Kumar (PW-8). Contents of certain pages of the diary containing the hand writing of the deceased as also letter (Ext. P-8) and complaint (Ext. P-14) were sent to the scientific laboratory for the opinion of the hand writing expert. The reports (Ext. PW 15/A and Ext. PW 15/B) were also obtained by the police. PW-14 also 5 recorded the statements of the witnesses. With the completion of the investigation challan was presented in the Court for trial. 4. The accused persons were charged of having committed an offence punishable under Sections 498-A and 306 of the Indian Penal Code to which they did not plead guilty and claimed trial. In support of its case prosecution examined fifteen witnesses. Statement of the accused under Section 313 Cr. P.C. was also recorded in which accused No. 1 took the following defence:- “I am innocent. Savita, my wife remained at my house after marriage for only one month and during this period she used to come to her parents. During this period the mother and Nani of deceased used to come to my house after every 2/3 days and instigated Savita either to live separately with her husband or to live at the house of her parents. On this instigation my wife Savita deceased asked me to live separately from my parents to which I agreed and wanted sometime to do so as arrangements for separate residence had to be made. On this Savita got angry with me and so she complained that my behaviour with her was not good. On 19.3.1992, Savita completely separated herself from me and my parents. Thereafter neither Savita came back to my house nor met me any-where. Moreover, none of the members of the family of parents of deceased made any effort there-after to meet us. Savita committed suicide after five months of leaving our house out of frustration as her parents used to utilize her salary on their own. I never threatened or frightened Savita. The documentary evidence relating to letters purporting to have been written by Savita 6 deceased is a result of fabrication. There was no question of any demand for dowry.” 5. The defence of all the other accused persons is more or less on similar lines. 6. The Court below has convicted accused No. 1 of the charged offences but acquitted accused No. 2, 3 and 4. The Court below found that in the documents Ext. D-1, Ext. P-8 and Ext. P-14 there was no mention of harassment, cruelty or dowry demand against accused No. 2, 3 and 4. Further the material witnesses of the complainant party being Smt. Raksha Mankotia (PW- 4), Sh. Haminder Singh (PW-5), Sh. Sudershan Singh (PW-6) and Sh. Vijay Kumar (PW-8) had made several improvements qua the said accused persons hence it was “quite unsafe to connect them with the alleged cruelty towards Savita and also demand for dowry”. However, qua accused No. 1 the trial Court felt that the dying declaration (Ext. P-1) and also letters Ext. P-8 and Ext. P-14 sufficiently connected him with the crime. 7. We have heard the learned Counsel for the parties and also perused the record. 8. There are certain undisputed facts which have emerged from the record. The deceased and accused No. 1 were married on 19.2.1992 and after their separation on 19.3.1992 have been living separately. At the time of separation document Ext. D-1 was executed. Its contents are not in dispute. It also cannot be disputed, as is evident from the testimonies of the family members 7 of the complainant party that after 19.3.1992 neither did the deceased visited her matrimonial home nor did the accused persons ever met her. It is also not in dispute that after 19.3.1992 the deceased had been living with her mother at Dharamshala. It is also not in dispute that the deceased had set herself on fire in the house of her mother. The said house belonged to Dr. Atul Mahajan (PW-2) and was taken on rent by PW-4. It is also not in dispute that at the time when the deceased set herself on fire she was alone in the house and the accused persons were nowhere to be seen around the place. It is also not in dispute that PW-5 saw smoke coming out of the house and informed Dr. Atul Mahajan (PW-2) about the same and both of them broke opened the door of the house and saw the deceased on fire. 9. It is also not in dispute that PW-2 took the deceased to the hospital where she was admitted with 98% burn injuries. It is also not in dispute that Smt. Savita Devi died in the hospital on 21.8.1992 which fact, in any event stands proved by Dr. Ramakant Mahajan (PW-3) and Dr. (Mrs.) Sumanju Dhiman (PW-11). 10. The prosecution case primarily rests on the oral testimony of PW-4, PW-5, PW-6 and PW-8 as also the statement of the deceased (Ext. P-1), her application (Ext. P-8) dated 5.8.1992 requesting for her transfer on the ground of alleged harassment caused to her by her husband and complaint (Ext. P-14) written by the deceased to the Pradhan expressing her apprehension about the ill treatment meted out to her by her husband. 8 11 To prove the charge against the accused the prosecution has to prove that all the accused persons, who are close relatives have subjected the deceased to cruelty by their willful conduct, have harassed her to meet the unlawful dowry demand and instigated her to commit suicide. 12 First we shall deal with the relevant documentary evidence. Statement Ext. P-1 reads as under:- “SASURALWALE DHAMKI DETHE THE KE MAR DALENGE, DAHEJ MANGTE THE. DADDY BATALA MEIN SERVICE KARTE HEIN SUGAR MILL MEIN. 19-2-1992 KO SHAADI HUI HAI. MEIN TEL IS LIYE DALA KI MEIN TANG AA GAI THEE. MERA PATI TAXI CHALAATE HEI, TAXI KA NUMBER 330 HAI. SASURAL SHAM NAGAR MEIN HAIN. SHAADI KE BADD EK HEE MAHINA SASURAL MEIN RAHI. JAB MEIN YAHAN AAI HOON, PATI MERE SE NAHI MILE, DAHEJ JAB MEIN APANE PATI KE GHAR PAR THEE TABHI MANGATE THE. MAMA VAGERA SAB AYE THE AUR MUJHE LE AAYE”. 13. The explicit version, as translated by the Court below is being reproduced as under:- “In-laws used to threaten that they would kill me. They used to demand dowry. Daddy is employed in a suger mill in Batala. The marriage had taken place on 19th February, 1992. I had put oil because I got fed-up. My husband plies Taxi. The taxi No. is 330. In-laws in Sham Nagar. After marriage I lived only for a month with in-laws since the day I had come here, my husband did not meet me. 9 Dowry they used to demand when I was living in the house of my husband. Mama (maternal uncle) and all others had gone and brought me to my parents house”. (Emphasis supplied) 14 As per the version of PW-2, he along with PW-5 brought the deceased to the hospital for medical treatment and got her admitted. He admits that after the incident many people had gathered both at the house of the deceased as also in the hospital. He could not confirm whether persons gathered in the hospital could talk to the deceased or not. Though he volunteered to state that no talks took place in his presence. Now curiously PW-5 has denied having accompanied PW-2 to the hospital. He admits that he was the first one amongst the relatives to have seen the deceased burning. According to him he remained at the house and it was only when his mother came that he alongwith her went to the hospital. This version of his does not inspire confidence. There was no reason for him to have remained in the house and not accompany the deceased to the hospital. She had received burn injuries to the extent of 98%. She was in a serious condition. Why would a brother stay at home and allow the neighbour to go to the hospital also is not clear. His conduct and behaviour is quite unnatural. He was a grown up boy. His statement to this extent also stands contradicted by PW-12 according to whom when he reached the hospital he found PW-5 present there alongwith the deceased. Prior to his arrival in the hospital he could not state who all had been attending 10 to and conversing with the deceased. According to him, before the statement could be recorded the deceased was surrounded by her relatives. 15 The possibility of the deceased being tutored in making the statement cannot be ruled out. We say so for the reason that the allegations attributed do not find mention in the agreement (Ext. D- 1) executed between the parties on 19.3.1992 which is to the following effect:- Today on 19.3.92, we are taking along our relative namely Savita Kumari w/o Sh. Vicky s/o K. J. S. Parmar with her (Savita Kumari) consent as we believe that she cannot live in this house as she is not being treated properly by her husband. This has been stated by Savita Kumar. Thus, she is going voluntarily and we are taking her along. I, K.J.S. Parmar and Vicky states that we as well as our family members are behaving properly with Savita Kumar. But after the marriage, her mother and maternal grandmother (Nani) frequently visits our house and instigate her not to live here. In fact, we would like to keep her (Savita Kumari) in our house. Hence, in case Savita Kumar is taken, the whole responsibility regarding her will be on aforesaid persons and her mother and maternal grandmother (Nani). Sd/- Sd/- Sd/- 19.3.92 19.3.92 19.3.92 B.S.Thakur A.K. Katoch Savita Mankotia Sd/- Sd/- Vijay Kumar K. J. S. Parmar 19.3.92 19.3.92 Witnesses: Sd/- (19.3.92) Sd/- (illegible) 11 16. Even with regard to the form in which the statement was recorded there is doubt. According to PW-2 certain questions had been put by the S.D.M. reply of which was reduced into writing. Whereas according to PW-1 he had only put questions pertaining to the name of the deceased and thereafter reduced into writing whatever was stated by the deceased. According to PW-12 no question relating to the meeting of the deceased with her husband, after she left the house of her in-laws, was asked by the S.D.M. 17. Even if statement Ext. P-1 is taken to be the untutored and correct version of the deceased still we are of the view that it cannot be said that soon before her death the deceased was being harassed by the accused persons or post 19.3.1992 she was being harassed or coerced to meet the unlawful demand of dowry or the accused persons, in any manner instigated her to take her life. In statement Ext. P-1 the deceased has spoken of the events of the past. Significantly the only allegation made in Ext. D-1 is that the deceased was not getting better treatment from her husband Surinder Kumar. There is no mention of dowry demand or threat to her life. Moreover there is no evidence to substantiate the fact as to who are these “Sasuraal wale”. It is not the evidence of the prosecution that the accused persons alone constitute the family of the in-laws. From the statements of PW-4, PW-5, PW-6 and PW-8 it is evident that the accused persons had not met the deceased after 19.3.1992. In this background the allegations, even if admitted to be true, as recorded in Ext. P-1 pertain to period which is atleast five 12 months prior to the recording of her statement. The only reason for taking such a drastic step of giving up her life is that the deceased “got fed up”. From the record it has not been proved by leading any clear, cogent and convincing evidence as to what was the reason behind the same. Admittedly the accused persons were not present at the time when the deceased set herself on fire. 18. We shall now deal with the application (Ext. P-8) allegedly written by the deceased to the Chief Medical Officer, Dharamshala. It is a typed copy of the application recording the fact that on 17.8.1991 the deceased had given her joining report at the Primary Health Centre, Dheera. On 5.8.1992 she was transferred from Dheera to Palampur. Due to her family circumstances it was not possible for her to discharge her duties at Palampur for the reason that several people from the side of her in-laws reside there and she is under threat of being physically assaulted and also defamed. For this reason she be adjusted at Dharamshala, Nagrota etc. and not allowed to discharge her duties at Palampur. Copy of this letter is endorsed to the Director Health Services, Himachal Pradesh, Shimla. Now this letter was recovered by PW-12 on 18.8.1992 from the purse of the deceased at the time when he searched the house where the deceased had put herself on fire. The seizure memo (Ext. P-7) is witnessed by Sunil and PW-5. Now Sunil has not been examined in Court. The purse from which the said letter was recovered was also not taken into possession by the police. There is no proof of the said fact either. According to PW-12 he went to the 13 scene of occurrence only in the evening of the day of the incident and at that time PW-5 was with him. He did not seal the room where the deceased had set herself on fire. He admits that PW-5 and his cousin were present at the time he had taken into possession the letter from the purse of the deceased. The possibility of the letter being introduced cannot be ruled out. What else was found in the purse has also not been proved. PW-12 could not clearly state as to whether the said letter was received by the Chief Medical Officer or not. Now he did not even bother to inquire from the office of the Chief Medical Officer about the receipt thereof. He also did not make any efforts to find out as to who had typed the same. According to him Ext. P-8 was signed by Smt. Savita so he did not make any efforts to find out on which typewriter it was typed and by whom. He also did not inquire as to when the same was typed. He did not make any effort to collect the writings/signatures of the deceased from her employer. He admits that all letters written by deceased Smt. Savita were produced by her relatives only. He also did not search the premises where the deceased was residing to collect any document written by her in her hand. He moved on the assumption that the letter was signed by the deceased. The easiest and the best way of proving the documents, having written by the accused was to have inquired from the office of the Chief Medical Officer, Kangra at Dharamshala or the Director Health Services, Himachal Pradesh at Shimla. Regretfully the same was not done. 14 19. There is no oral evidence to corroborate the contents of the letter either. PW-8 admits that he did not report the matter to the authorities nor had he taken the police to village Dheera or Palampur. He could not state where and in whose presence accused No. 1 had threatened the deceased. There is also no material on record to prove that relatives of accused live in Palampur. 20. The next document is the undated letter (Ext. P-14) allegedly written by the deceased in her own hand and addressed to the Pradhan of Gram Panchayat, Dheera. In this document it is alleged that the deceased had been working in the Health Centre as Staff Nurse for last one year. She was married to Surinder Parmar on 19.2.1992 and immediately after the marriage she was turned out of her matrimonial house by her husband. Her relatives took her back. When ever she is standing at bus stop Dheera accused Surinder Parmar accompanied by gundaas threaten her and proclaims that he will defame her. He would also threaten that he would have the deceased kidnapped by the gundass and done away to death. Accordingly necessary action be taken to protect her life and the complaint be lodged. Noticeably the document is undated. Now this document was handed over to the police by Sh. Sudershan Singh (PW-6) father of the deceased and was taken into possession vide memo (Ext. P-11) dated 3.9.1992. Sh. Onkar Bharti (PW-7), witness to the memo has also deposed that the letter was handed over by PW-6 to the police. He admits that the letter was handed over to him by the parents of the deceased which in turn was handed over 15 to the police by him. He is not sure of his statement. He contradicts himself on the fact as to who handed over the letter to the police. Be that as it may be, importantly it is not the version of this witness or the case of the prosecution either that the said letter was in fact handed over by the deceased to the Pradhan. Further PW-7 does not state that the deceased had complained to him about the conduct and behaviour of the accused persons or for that matter he had investigated the complaint and found its contents to be even prima facie true. The document has come from the possession of the complainant party. Where the said document was found and why it was not handed over to the police immediately on the registration of the F.I.R. has not been explained by the prosecution. This letter or contents thereof do not find mention in the statement Ext. P-1. It is not the case of the prosecution that the document was not in their possession at that time. 21. In order to prove the fact that the documents Ext. P-8 and Ext. P-14 were actually written/signed by the deceased the prosecution has taken into possession diary (Ext. P-9) allegedly belonging to the deceased. According to PW-5 on 23.11.1992 the police had come to their house at village Tikar and for comparing the handwriting of the deceased they took her diary which was lying in the house there. He identified the writing in the diary to be that of the deceased. Same was seized vide seizure memo (Ext. P-10) dated 23.11.1992 witnessed by Sh. Vijay