IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 388 of 1998 Judgment Reserved on : 2.6.2010 Date of Decision : October 28 , 2010 State of Himachal Pradesh Appellant Versus Gurdeep Singh 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. For the appellant : Mr. Vivek Thakur, Addl. Advocate General with Mr. Rajesh Mandhotra, Deputy Advocate General for the appellant. For the Complainant : Mr. Subhash Sharma, Advocate, for the complainant. For the respondents : Mr. M. S. Guleria, Advocate and Mr. G. S. Chandel, Advocate, for the respondents. Sanjay Karol, J. For an offence which is alleged to have been committed on 23.5.1996, accused were put to trial. In terms of judgment dated 28.5.1998 passed by the learned Sessions Judge, Mandi, Himachal Pradesh in Sessions Trial No. 30 of 1996, titled as State of Himachal Pradesh versus Gurdeep Singh and others, the accused stand acquitted of the charged offences. Whether reports of Local Papers may be allowed to see the judgment? 2 2. It is the case of the prosecution that Rishi Singh (Accused No. 2) through his wife Harjinder Kaur (Accused No. 4) had three sons namely Sh. Gurdit Singh, Kulwant Singh (Accused No. 3) and Gurdeep Singh (Accused No. 1). On 29.4.1993 Sh. Gurdit Singh was married to Smt. Supreet Kaur (PW-5) daughter of Sh. Gurbax Singh (deceased). The family lived together at Sundernagar. In a motor vehicle accident Sh. Gurdit Singh died. At that time PW-5 was pregnant. She later on gave birth to a female child named Radhika and continued to live at the matrimonial house. During his life time Sh. Gurdit Singh had informed PW-5 that he owned several immoveable properties including an orchard at Kamandh, bungalow at Delhi and a shop. The accused did not want PW-5 to inherit the properties of her late husband therefore they conspired to get PW-5 married within the family. They wanted the properties to be retained in the family and got certain papers signed from PW-5 before the S.D.M. Both A-2 and A-4 proposed that PW-5 be married with A-3. This proposal was not acceptable to PW-5 and family members. However the accused prevailed upon the family of Gurbax Singh and unwillingly the proposal was accepted and marriage solemnized. Initially relations between the two were cordial but however PW-5 realised that A-3 started living in Delhi over a continuous period of 15 days. He also told PW-5 that he was having a relationship with one Ms. Manpreet Kaur in Delhi, whom he wanted to bring to Sundernagar as his second wife. The lady was introduced to PW-5 at Behni Saheb where it was informed that accused Kulwant Singh had 3 already contracted marriage and would keep his second wife at Delhi. PW-5 did not disclose this fact to her parents out of fear that her education would be discontinued by the accused. Her movement was closely monitored and she was not allowed to freely move out of the house. Accused harassed her. A-1 also threatened to kill her. She complained to her mother about the cruelties meted out to her by sending letters (Exts. PW 5/A and 5/B). When the issue of harassment and cruelty was taken up with the Namdhari Panchayat at Behani Saheb, accused hurled abuses and threatened to kill Sh. Gurbax Singh. On 22.5.1996, in the store room of the house, PW-5 heard A-2 and A-4 converse with each other. In hushed voice she heard the words “Gurbax Singh – accident – duty”. She suspected some foul play and consequently wrote letter (Ext. PW 5/C) to her mother which she posted after getting out of the house on the pretext of buying stationery for her daughter. In the morning of 23.5.1996, A-2 inquired from A-1 as to whether the work had been done (Kaam Ho Gaya) to which he replied that the same could not be done today. PW-5 became suspicious of the intention of the accused to kill Gurbax Singh, by taking advantage of the absence of the other members of the family in the house, in the evening she went to the house of Sh. Satyagir Sankhyan to call her mother on the telephone. She cautioned her to take care of her father when he goes on duty lest he be killed. She also informed her brother Sh. Harmik Singh (PW-3) about the same. According to the prosecution all the accused conspired to kill Gurbax Singh. 4 3. On 24.5.1996 PW-5 got up at 4.30 or 5.00 a.m. She realized that A-1 was not present in the house. His gypsy was also not there. She saw A-2 leaving for the Gurudwara. She also left for the Gurudwara where she heard people saying that Raju @ accused Gurdeep (A-1) had killed her father and she immediately returned back to confront the accused of this fact which they denied. 4. It is the case of the prosecution that Sh. Gurbax Singh used to daily visit the Gurudwara for prayers in the early hours of the morning. Almost at the same time his son (PW-3) used to go for a walk. Sh. Kanchan Pal Singh (PW-2) who has a house at a short distance from the house of A-2 saw A-1 driving his gypsy at high speed towards the bus stand. After turning the vehicle and taking two rounds of the road he finally drove the vehicle at high speed towards bus stand. After covering little distance, A-1 hit Gurbax Singh from behind. He wanted to kill him. Gurbax Singh fell on the kucha portion of the road. He became unconscious and blood started oozing from the injury suffered by him. A-1 swiftly drove away the vehicle and took it to his farm house at Harabagh. There he tampered with the brake pipes of the vehicle and made a dent on the bonnet of the vehicle so as to make it appear as though accident had taken place. The incident was witnessed by PW-3 who immediately went to his house and informed his mother about the same. He then went to the house of Sh. Jagdish Singh (PW-4) and asked him to arrange for a conveyance for carrying his father to the hospital. In the meanwhile PW-2 was informed by passers-by that A- 5 1 had hit Gurbax Singh with a gypsy. PW-2 then brought a scooter from his house. He reached the spot where several persons including Sh. Darshan Singh Kharbanda (PW-14), Sh. Shiv Kumar, Sh. Nirlep and Sh. Tek Prabal had gathered. The injured was rushed to the hospital at Sundernagar where he was immediately attended to by Dr. V. Kapil (Court Witness-1) who telephonically informed the police. 5. HC Roop Lal (PW-16) made entry in the roznamcha (Ext. PW 16/A). ASI Bhed Singh (PW-24) alongwith other police officials was deputed to the hospital to investigate the matter. Later at about 9.10 a.m. he visited the spot of the accident and recorded statement (Ext. PW 2/A) of PW-2. The same was sent to the police station on the basis of which F.I.R. No. 110/96 (Ext. PW 23/A) dated 24.5.1996 was registered under Section 307 Indian Penal Code with Police Station Sundernagar. Same day at about 4.10 p.m. copy of F.I.R. was sent to the Court of Chief Judicial Magistrate. PW-24 also recorded statement of PW-3 and the other members of the family. Place of crime was photographed. From the spot blood stained soil was collected and kept in a sealed parcel. The same was sent to police station and deposited with the MHC. 6. At about 10.00 a.m. Dr. Anil Chauhan (PW-26) referred the patient for further treatment to the Post Graduate Institute at Chandigarh. After getting him discharged from the government hospital, family members took Gurbax Singh first to the B.B.M.B. hospital at Sundernagar and then to P.G.I. at Chandigarh where he 6 was admitted at about 7.30 p.m. on 24.5.1996. He was medically examined by Dr. Sundhanshu Sarkar (PW-22). Sh. Gurbax Singh was attended to by his family members. Police also visited Chandigarh to make further investigation. Injured finally succumbed to his injuries on 6.6.1996. At Chandigarh post mortem was carried out by Dr. Mohinder Kaushal (PW-25). Dead body was brought back to Sundernagar for funeral. Accused or their family members did not visit Chandigarh or attend the funeral. With the death of Sh. Gurbax Singh case was converted from Section 307 IPC to Section 302 IPC. Investigation was taken over by Dy. S.P. Sh. Brij Mohan Sharma (PW-28) who recorded supplementary statements of the witnesses. During investigation clothes belonging to Sh. Gurbax Singh were taken into possession by the police. Gypsy was also taken into possession vide memo (Ext. PW 4/C). Brestu Ram (PW-13) mechanically examined the same and issued certificate (Ext. PW 13/A). Sh. J.R. Gaur, Director F.S.L. Junga (PW-27) also inspected the vehicle and gave report (Ext. PW 27/A). Letters (Ext. PW 5/A to Ext. PW 5/C) were compared with the hand writings on note book (Ext. PA-1 to Ext. PA-17) belonging to PW-5 and the hand writing expert opined (Ext.- PX) the same to be written by the same person. Report from the Forensic Science Laboratory (Ext. PW 27/B) was taken by the police. With the completion of investigation challan was presented in the Court by Inspector Hans Raj (PW-21). 7. All the accused were charged for having committed an offence punishable under Section 120-B read with Section 302 IPC. A-1 was 7 additionally charged for having committed an offence punishable under Section 201 IPC. Accused did not plead guilty and claimed trial. 8. In order to prove its case prosecution examined 28 witnesses. One Court witness was examined. Statements of the accused under Section 313 Cr. P.C. were recorded. 9. The Court below acquitted the accused, hence the present appeal. 10. The genesis of the incident as set out by the prosecution appears to be extremely doubtful if not false. Except for the oral testimony of Smt. Supreet Kaur (PW-5), her brother Harmik Singh (PW-3), her mother Smt. Jagdish Kaur (PW-7), two relations Sh. Manjit Singh (PW-6), Sh. Jagdish Singh (PW-4) and Sh. Baldev Singh (PW-18) and documentary evidence in the shape of three letters (Ext.PW 5/A, 5/B and 5/C) there is nothing on record to substantiate the theory of harassment caused to PW-5 or conspiracy hatched to kill Gurbax Singh. 11. PW-7 admits that they had agreed for the marriage considering the future of the child which was linked with the family of the accused. Now if this were so then, she has falsely deposed that the members of the complainant family were pressurized, threatened or intimidated in agreeing to get PW-5 married to A-3. Consideration for marriage was definitely not the one propounded by the prosecution. 8 12. Supreet Kaur (PW-5) admits to have singed affidavit (Ext. DF) where A-2 has willed his property in Bhojpur (under tenancy with H.P. Co-operative Bank) in her favour. She alone is entitled to receive the rent. Importantly this affidavit is also signed by deceased Sh. Gurbax Singh. The document is attested on 19.10.1995 which is almost seven months prior to the incident. Affidavit (Ext. DG) whereby properties in the name of her late husband were agreed to be transferred in favour of A-4 was signed by her. Now there is nothing to prove that Sh. Gurdit Singh owned any immoveable property at Kamandh or Delhi. Further by killing Sh. Gurbax Singh accused could not have gained any advantage of achieving their motive of retaining the properties belonging to Sh. Gurdit Singh within the family. Sh. Gurbax Singh was not to inherit any properties from Sh. Gurdit Singh. Also Smt. Supreet Kaur (PW- 5) admits to have received compensation awarded in a claim petition filed by her in relation to an accident in which her husband expired. 13. Admittedly nothing has been produced on record to show that any complaint of harassment, torture, conspiracy, intimidation or threat was ever made by the complainant party with any person or authority. Even members of the Namdhari Beradari have not been examined in Court or associated during investigation. At this stage we may only mention that statements of the prosecution witnesses to this effect do not inspire confidence. In detail, we shall deal with them later. Importantly at the very first instance none of the prosecution witnesses told the police about the same. Significantly 9 Sh. Gurbax Singh died on 6.6.1996 and only when the investigation was taken over by PW-28 in the supplementary statements, these theories saw light. 14. According to PW-7, in the month of December, 1995 she was informed that A-3 had contracted another marriage and a son was born from the second wife. Now this version of hers stands falsified by the birth certificate which shows the child to be born on 21.11.1996. Version of prosecution witnesses that at Behni Saheb accused had brought Manpreet Kaur for seeking blessings or that the Beradari had been informed about the harassment meted out by the accused to PW-5 is not corroborated by any independent witness. It is not the case of prosecution that PW-5 was being harassed for having brought insufficient dowry or was otherwise not acceptable to the family. 15. To prove the charge of conspiracy prosecution case primarily rests on the statement of PW-5 and letters (Exts. PW 5/A to 5/C). Importantly these letters are undated and only bear postal stamps dated 17.4.1996, 9.5.1996 and 23.5.1996 respectively. In these letters PW-5 forewarned PW-7 about the alleged conspiracy on the part of the accused to kill Sh. Gurbax Singh. PW-5 admits that except for these letters she did not write any other letter. Her statement is categorical. However letter dated 17.4.1996 starts with the reference to earlier letter written by her to her mother. Importantly no reference of these letters is made till 10.6.1996. They surface only after Dy. S.P. (PW-28) took over the 10 investigation. These letters appear to have been created later on to support the prosecution case. Why is it that such a serious matter of conspiracy was communicated by PW-5 to her mother by writing letters. Nothing prevented her from approaching the police, members of the Beradari or anyone else including the neighbours. Admittedly she was a daily visitor to the Gurudwara. It is important to point out that her parents house was close by. She admits to have come out of her house to post these letters on the pretext of buying stationery for her daughter. Instead of going to the post office she could have conveniently visited her parents house. She admits that to reach the post office she has to cross through her parental house. 16. According to her on 23.5.1996 she had gone to the house of Sh. Satyagir Sankhyan, Manager of Co-operative Bank to make a telephone call to her mother. Now this person has not been examined in Court to corroborate her version. She admits that otherwise she had access to the telephone in the house. Her parents also have a telephone in their house. It is not her case that she was under house arrest or that even in the house her movement was closely monitored at all times. Then what was the need for her to go out of the house and make a telephone call to her mother. She could have conveniently called her mother from the house itself. In any event having come to know of the conspiracy hatched by the accused to do away with the life of Sh. Gurbax Singh what action was taken by her mother and brother is not clear. 11 17. We find statement of PW-5 to be full of improvements, improbabilities and falsehood. She admits that having learnt about the accident she did not go to the police station or ask her mother and brother to inform the police about her warnings having come true. She admits that the vehicle in question had met a serious accident at Ropar in which three persons had died and a case in connection with the said accident was pending. She admits that her statement (Mark-DD) with which she was confronted her version that (i) she had met members of the Namdhari Panth; (ii) reference of properties owned by her first husband; (iii) having visited the office of the S.D.M. on 26.2.1994 for signing the document under pressure not to be there. Importantly she does not remember having told the Dy. S.P. that her signatures were obtained under pressure. She admits to have told the Dy. S.P. that her marriage with A-3 was solemnized with the approval of her parents and not against her wishes as also wishes of her brother. In fact in Court she has gone to the extent of attributing immoral conduct on the part of A-2 which also is not the prosecution case. The demeanor of this witness is unexplainable. Having learnt about her father’s murder she did not visit her parental house. She came to her house and questioned her father-in-law whom she was otherwise suspecting of hatching a conspiracy to kill her father. There was no motive for the accused to have killed Sh. Gurbax Singh. Theory of conspiracy cannot be said to have been proved by 12 leading clear, cogent and convincing material beyond reasonable doubt. 18. With reference to the incident of 24.5.1996 prosecution case primarily rests on testimony of Sh. Kanchan Pal (PW-2), Harmik Singh (PW-3), Smt. Jagdish Kaur (PW-7) and Sh. Darshan Singh Kharbanda (PW-14). 19. On 24.5.1996 at about 9.10 a.m. PW-2 got his statement (Ext. PW 2/A) under Section 154 Cr. P.C. recorded to the effect that he saw A-1 driving gypsy No. DAE-6734 at a high speed. Two days earlier A-1 threatened PW-3. It is therefore “suspected” that Gurbax Singh was deliberately hit with the vehicle with an intention to kill. 20. From the testimony of CW-1 as also MLC (Ext. PW 24/C) it is apparent that PW-24 stood informed about the incident at 6.30 a.m. itself. He also visited the hospital prior to recording of the statement (Ext. PW 2/A). Even as per the version of PW-2, PW-3, PW-4 and PW-7 they had brought the injured to the hospital. Most of the family members and in particular PW-3 was present at the hospital. Yet they did not disclose the real cause of the accident to the police. Contrary to the prosecution case MLC (Ext. PW 24/C) records the cause of injuries as “not known” and “patient was brought to the hospital by relatives”. Now according to PW-24 he recorded the statement (Ext. PW 2/A) at the spot and not in the hospital. Admittedly PW-24 was already in the hospital then why is it that the statement of the relative was not recorded there. According to Sh. Baldev Singh (PW-18) brother of Sh. Gurbax Singh police had 13 already made inquiries in the hospital itself. PW-3 admits to have witnessed the incident. Importantly prosecution has not examined Sh. Shiv Kumar, Sh. Nirlep and Sh. Tek Prabal who admittedly were present at the spot and had witnessed the incident. Now if PW-3 had witnessed the incident which took place at 5 – 5.30 in the morning then why is it that he did not immediately report the matter to the police. Importantly both PW-2 and PW-3 were together in the hospital. Theories of threats and conspiracy appear to the figment of imagination of the prosecution. Had they been real PW-3 would have definitely disclosed it to PW-2 who in turn would have got recorded the same in his statement. Importantly PW-2 only suspected murder and that too on the alleged threat given by A-1 to PW-3 and not Gurbax Singh which in fact is the case of the prosecution. 21. We further find that there is interpolation in Ext. PW 2/A. PW- 28 admits that the word “SDH” (State District Hospital) were superimposed by the word “Bhojpur”. He does not know as to who superimposed these words. He further admits it to be correct that that the words “gypsy ki” and “Gurbax Ko” were added lateron. Same is not mentioned in the carbon copy of the ruka. Obviously interpolation was done only to show that statement of PW-2 was recorded on the spot at 9.10 a.m. and not in the hospital. Version of both PW-2 and the police officials stand falsified. Enough time was left with the complainant party to deliberate upon the matter and then make a complaint implicating the accused persons. 14 22. In Court PW-2 has deposed that he was informed by “one person” that a “Gypsy” had hit “one Sardarji”. Now this fact is not mentioned in Ext. PW 2/A. He further states that when he reached the spot PW-3 was present and informed him that A-1 had hit his father with a Gypsy. Now this version of his stands contradicted by Ext. PW 2/A wherein he only expressed his suspicion. There he is absolutely silent about the presence of PW-3. Importantly in cross examination he admits that police had not arrived at the spot till noon and his statement was recorded only in the afternoon which could be around 2.00 p.m. Now this version of his renders the entire prosecution case including statement (Ext. PW 2/A) and testimony of PW-24 to be false. 23. Here it is pertinent to mention that prosecution deliberately omitted to examine the Doctor who firstly attended upon Sh. Gurbax Singh in the hospital. In his testimony CW-1 states that the injured was brought to the hospital by the relatives at 6.00 a.m. From them he inquired the cause of the injuries to which they expressed ignorance. He was specifically told that they were going for a walk and found him lying on the road and as such brought him to the hospital. According to him the son and the wife of the injured were present in the treatment room. Since none was sure of the cause of the injuries therefore he informed the police. This statement remains uncontroverted. Importantly bed ticket (CW 1/A) also corroborates his version. This totally demolishes the prosecution case. 15 24. PW-3 has also not come out with truth. According to him on 24.5.1996 at about 5.00 a.m. his father left the house for Gurudwara. After a short while he also left the house to go for the morning walk. He had walked for about 100 to 150 metres when he saw a gypsy coming from the lower side at high speed hit his father. His father fell on the road. He informed his mother and then went to the house of Sh. Jagdish Singh to arrange for a conveyance. His mother (PW-7), Sh. Jagdish Singh (PW-4), Sh. Kanchan Pal (PW-2), Sh. Darshan Singh Kharbanda (PW-14) accompanied him to the hospital where treatment was given to his father. Now this witness states that for the first time he was examined by the police on 24.5.1996 at 4.00 p.m. when his father was being taken to P.G.I. Why did the police not examine him for more than ten hours has not been explained. PW-2 had given reference of this witness in his complaint. As per the spot witnesses police was in the hospital. 25. It has come in the statement of PW-18 that from the Government hospital they went to B.B.M.B. hospital and at about 2.00 p.m. left for P.G.I. Chandigarh where they reached at about 7.30 p.m. and PW-3 was always with the injured. Then obviously statement of PW-3 could not have been recorded at 4.00 p.m. rendering the version of the Investigating Officer to be incorrect. PW-7 states that they had already left Sundernagar at about 2.30 p.m. This witness further admits that even on 2.6.1996 when police from Sundernagar had come to P.G.I. Chandigarh no statement was recorded. All this renders the prosecution version to be not only 16 doubtful but in fact false. The statements of the family members appear to have been recorded much