IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cri. Appeal No.456 of 1996 Reserved on : 8th April, 2010 Date of Decision:7th May, 2010 State of Himachal Pradesh Appellant Versus Jujhar Singh Respondent Coram The Hon’ble Mr. Justice Deepak Gupta,J. The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? Yes. For the appellant: Mr. Vivek Singh Thakur, Addl. Advocate General with Mr.Rajesh Mandhotra, Dy.AG. For the respondent: Mr.Raj Kumar, Advocate, vice Mr. N.K.Thakur, Advocate. Sanjay Karol, J. 1. Smt. Puspinder Kaur committed suicide by jumping into the water canal on 26.6.1993. Her husband Jujhar Singh (accused) was tried for an offence punishable under Sections 306, 498-A, IPC. The learned Sessions Judge, Una, District Una, H.P. in Sessions case No. 22 of 1994, titled as State of H.P. vs. Jujhar Singh, acquitted the accused vide judgment dated 16.2.1996. The State has filed the present appeal assailing the same. Whether the reporters of Local Papers are allowed to see the Judgment? 2 2. It is the prosecution case that sometime in the year 1988 the accused and the deceased were married to each other. Children were born out of the wedlock. HC Baldev Raj (PW-5) alongwith Constable Balkar Singh were posted on security duty at the Bhakra bridge at Nangal. On 26.6.1993 at about 11 a.m. they saw a lady keeping a child on the footpath of the canal bridge. Thereafter she immediately jumped into the canal. Both of them rushed to the spot but could not see the lady in the water. On the footpath they noticed a child who was weeping. A pair of sandle, a purse, chunni, few grapes and a suicide note (Ext.PE) was lying near the child. Through telephone they informed about the incident to the police at the Police Post Nangal. ASI Shri Harbans Singh (PW-16) rushed to the spot and tried to trace the dead body but in vain. PW-5 handed over the custody of the child to PW-16. The purse (Ext.P- 1), Chunni (Ext.P-2), Sandle (Ext.P-3) and the suicide note, hereinafter referred to as Rukka (Ext.PE) was also taken into possession by PW-16. At about 5 p.m. on 27.6.1993 accused lodged a report with police Post, Mehatpur, (H.P.) to the effect that his wife and son were missing since 25.6.1993. On 28.6.1993 while Shri Gurmail Singh (Pw-15) was on patrol duty in the Bazar at Mehatpur (H.P.), Ajit Singh (PW-2) father of the deceased got his statement 3 (Ext.PD) recorded. The same was sent to the Police Station, Una, (H.P) where Shri Darshan Singh (PW-9) recorded FIR (Ext.PD/1) dated 28.6.1993 Under Section 306, IPC. Investigation was carried out partly by PW- 15 and partly by Mohar Singh (PW-13). During investigation, on 28.6.1993 articles Exts.P-1, PW-2, P-3 and Rukka were taken into possession vide memo Ext.PG witnessed by Shri Kuldeep Singh (PW-6). On interrogation the accused produced a note book (Ext.PF) allegedly written by the deceased in her hand. The same was taken into possession vide recovery memo Ext.PK in the presence of Hakam Rai (PW-7). On 3.7.1993 post-mortem of the body was conducted by Dr.Gian Inder Dev (PW-1) and as per his report (Ext.PA) deceased died due to drowning. Statement of witnesses, namely, Smt. Bimal Kaur (PW- 3) mother of the deceased and Shri Bhajan Singh(PW-4) were recorded by the police. Rukka (Ext.PE) and note book (Ext.PF) was sent to the Director, FSL, Shimla and his opinion (Ext.PM) on the handwriting was obtained by the police. After investigation challan was presented in the Court by Kashmir Singh (PW-12). Investigation revealed that accused had illicit relationship with “another” lady and in spite of reprimand he did not improve himself. This prompted the deceased to commit suicide. 4 3. The accused was charged for having committed an offence punishable under Section 306, 498-A, IPC, to which he did not plead guilty and claimed trial. The prosecution examined 17 witnesses. The statement of the accused under Section 313, Cr.P.C. was also recorded. The defence is that of denial. The accused stands acquitted by the Court below, hence the present appeal. 4. We have heard the learned counsel for the parties and also perused the record. 5. There are some startling features about the manner in which the investigation has been carried out by the police. To say the least, it is tardy and callousness is writ large. Admittedly, the deceased had jumped into the canal on 26.6.1993. Articles Ext. P-1, Ext.P-2, Ext.P-3 and Ext.PE were taken into possession by PW-16 on the same day itself. He even took the custody of the child. Yet recovery of these articles is shown only vide recovery memo Ext.PJ which is dated 28.6.1993. PW-16 admits that these articles continued to remain with him for two days. Why no recovery memo for the same was prepared earlier has not been explained by the police. Further FIR (Ext.PD/1) was registered with Police Station, Una, (H.P) only on 28.6.1993. There is no explanation as to why no case had been registered by the officials of the Police Station having jurisdiction over police 5 post Nangal. Further prosecution has led no evidence to show as to when, where and by whom the dead body of the deceased was actually recovered. The post-mortem report (Ext.PA) is dated 3.7.1993. What happened between 26.6.1993/28.6.1993 and 3.7.1993 has also not been disclosed by the police. That apart, as per the doctor (PW-1) he had handed over the sample of the viscera of the deceased to the police. Tarsem Singh(PW-11) corroborates the said fact. However, prosecution has not placed the report of the Chemical Analyst. There is also inordinate delay in recording the statement of the prosecution witnesses by the police. The prosecution has also concealed and suppressed material evidence. 6. The case of the prosecution primarily rests on the suicide note (Ext.PE) as also the statements of the parents (PW-2 and PW-3) of the deceased. 7. PW-5 is the first person who noticed Rukka (Ext.PE). According to him, after reaching the spot from where the deceased had jumped into the water canal he noticed a child lying on the footpath who was weeping. A pair of sandle, purse, Chunni and rukka was lying nearby. Importantly, he admits not to have seen the lady placing the Rukka on the purse even though he was standing at the distance of 30-40 yards from where she had jumped into the canal. He could not remember whether the Rukka was lying near or on 6 the purse. He allowed the articles to remain on the footpath and only brought the child to the security post where he came to inform the police on the telephone. The articles continued to remain there till the time the “ASI” reached the spot. (here he is referring to PW-16). The ASI reached after about 10- 15 minutes and collected the articles and took them into his possession but no recovery memo was prepared. 8. According to PW-16, after receiving the telephonic message from PW-5, he rushed to the spot. There he took custody of the child from PW-5 and also collected the articles. He admits that at the place where the articles were found there was heavy traffic and people were walking on foot. Now PW-14, who was posted as MHC, Police Post, Nangal gives a different version. According to him no telephonic message was received from the canal bridge at police post, Nangal. There is nothing on record to prove the fact that PW-5 had informed the Police Post at Nangal about the incident on telephone. PW-14 admits that no telephonic message was received from the canal bridge by the police post. Also no entry with respect to the same was recorded in the Rojnamcha on 26.6.1993. Rojnamcha only records entry of ASI Harbans Singh leaving on patrol duty towards the truck union, Nangal –railway road and railway track on Bhakra canal. In this view of the matter, the case as set up by the 7 prosecution appears to be doubtful. The path was frequented by pedestrians. Therefore, the possibility of the Rukka and the articles having been placed by the passer-bye cannot be ruled out. Now why would the deceased keep the suicide note on or near and not inside the Purse. The recovery of Rukka itself is in doubt. There is no evidence to prove the presence of PW-16 at the spot on 26.6.1993 as set up by the prosecution. 9. In defence, the accused has denied having meted out any cruelty to the deceased. Rukka (Ext.PE) was fabricated to falsely implicate him. It is not in dispute that PW-2, father of the deceased, was posted as a security officer with BBMB for a period of 11 years. He denies the suggestion that PW-5 and Balkar Singh were working under him, but, however, the fact of the matter is that this witness has been working with BBMB, which organization directly controls and supervise the canal works at Nangal. The possibility of a story being cooked up cannot be ruled out. 10. Be that as it may be, PW-16 admits that articles including Rukka continued to remain with him for 2 days. Importantly, this witness categorically states that on 26.6.1993 itself he had sent a wireless message to Police Station, Una. Now, this fact has been concealed by PW-15 and PW-13, who were posted within the jurisdiction of Police Station, Una, (H.P) 8 where FIR (Ext.PD/1) was recorded on 28.6.1993. The prosecution has not disclosed the action taken on the wireless message sent by PW-16. Undoubtedly on 27.6.1993 the accused had got his complaint (Ext.PL) registered with the police post, Mehatpur. What action was taken on the said complaint has also not been disclosed by the police. 11. The prosecution, however, has come up with the version that while Gurmail Singh (PW-15) was on patrol duty he met PW-2 who got his statement (Ext.PD) recorded on the basis of which FIR (Ext.PD/1) was registered at Police Station, Una. Even though the FIR is alleged to have been written on the statement (Ext.PD) dated 28.6.1993, but, however, the FIR (Ext.PD/1) is dated 27.6.1993. 12. According to PW-15 the accused had produced a note book (Ext.PF) containing the handwriting of the deceased. Whether the note book was recovered from the accused or not, there is a serious doubt. The accused has denied having handed over the same to the police. According to the prosecution, the same was handed over by the accused in the presence of Shri Hakam Ram (PW- 7). Now PW-7 does not support the prosecution at all. He was declared hostile and inspite of extensive cross-examination by the Public Prosecutor nothing incriminating could be found in his statement. According to him, notebook kept in a bag belonging to 9 the police was taken into possession vide recovery memo Ext.PK. Police had informed him that the notebook belonged to Pushpinder. 13. Notebook (Ext.PF) seems to have been prepared by a person studying in an institute imparting formal training in sewing and stitching. Undisputedly even as per PW-3, deceased was never admitted in any sewing school or had taken any formal training for the same. Name written on the cover page of this note book is Pushkinder Kaur and not Pushpinder Kaur. It is written both in Hindi and English. This rules out the possibility of any error in the name due to spelling mistake. Importantly, on the first page of notebook name and address of one Dalbinder Kaur is also mentioned. Now PW-15 admits not to have associated this person during investigation. Whether the note book actually belonged to the deceased and as to whether the same was written by her in her own hand could have been revealed by this person. She was a relevant link to the prosecution case. It cannot be said that notebook (Ext.PF) was that of the deceased or contained her handwriting. Importantly, Shri Kuldip Singh who witnessed the recovery memo Ext.PJ is the brother-in- law of the deceased. Even he does not identify her handwriting. 10 14. Further, it has come on record, through the statements of PW-1 and PW-2 that deceased knew how to write and read in Hindi. She also used to write some Bhajans. It is the version of PW-15 that he had asked PW-2 to produce the specimen handwriting of the deceased, which was not done. Now this version stands contradicted by PW-2, according to whom on 28.6.1993 itself he had handed over the paper to the police on which the Bhajans had been written by the deceased. He had torn off the same from the note book maintained by the deceased. This piece of evidence has been concealed by the prosecution. Rather than prosecuting the accused on the basis of the note-book allegedly handed over by the accused, the prosecution ought to have investigated the matter by taking into account this piece of material evidence handed over by the father of the girl. Now why did the father actually not hand over complete book of Bhajans written by the deceased has also not been explained. This was the best piece of evidence from which it could be proved that rukka (Ext.PE) was in fact written by the deceased. From the record, it cannot be said that prosecution has been able to prove the fact that the handwriting on rukka (Ext.PE) and the note book Ext.PF is that of the deceased. 15. Learned Sessions Judge has rightly held that in the present case the evidence of the handwriting 11 expert is not of much help as the prosecution has failed to prove that both the documents were actually written by the deceased. 16. On the question of the accused treating the deceased with cruelty, prosecution has relied upon the statements of PW-2, PW-3, PW-4 and PW-7. PW-7 has not supported the prosecution case. The statement of the mother (PW-3) of the deceased was recorded by the police after a period of 10 months. The same ought to have been recorded immediately. It is the defence of the accused that the deceased oftenly visited her parental house without taking his permission. She would do it without any reason. By examining Joginder Singh (DW-1), accused has tried to prove this fact. However, as per the prosecution the accused had illicit relationship with “a lady” which was the cause of discord and also when she objected to the same the accused used to beat her up. It is a matter of fact that the parties had been married for over five years. They had two children from the wedlock. 17. According to PW-2 within one year of the marriage, Pushpinder came to her matrimonial home and informed her mother (PW-3) about the illicit relationship which her husband (accused) was having “with a lady”. When she objected the accused used to beat her. The matter was sorted out and the deceased was sent back to the matrimonial house. Thereafter, 12 there were no complaints for a period of about 2 to 3 years but later the deceased again complained about the same. At that time, the deceased remained at her parental house for 2-3 months and when the accused realized his mistake and promised to mend his behaviour the deceased accompanied him to the matrimonial house. She was comfortable for one year and also gave birth to a male child. However, sometime in January/February (1993), the deceased again came back and informed her about the illicit relationship of her husband with “another lady” due to which she had again been beaten up. This time she stayed for a period of 4-5 months. The accused also came to their house with the members of the Panchayat of his village Charatgarh. At that time, the accused was reprimanded in the presence of the members of the Panchayat including Pritam Singh and Joginder Singh. On 27.6.1993 at about 7 p.m. the accused came to their house and enquired about the deceased. He informed that on 26.6.1993 she had again left the matrimonial home and her whereabouts were not known. Except for the contradictions with regard to the duration for which the deceased stayed with them, PW-3 has reiterated the version narrated by PW-2. 18. To our mind, the statement of these witnesses with regard to illicit relationship and the alleged beatings given by the accused are vague, 13 unspecific and not enough to hold the accused guilty of the charged offence. It cannot be said with certainty that accused had treated the deceased with cruelty which prompted her to commit suicide. There is no doubt that meeting to settle the dispute between the parties had taken place. The said meeting was on the asking of the accused. The agenda for discussion in the meeting was also the conduct of the accused. But, however, this fact alone cannot be said to conclusively prove the prosecution case. Except for PW-2 and PW-3 none has deposed about the alleged acts of cruelty. Importantly PW-2 and PW-3 are not even aware of the particulars and whereabouts of “the lady” with whom the accused is alleged to have had illicit relationship. The parties had been married for more than 5 years. The deceased admittedly left her matrimonial house on three different occasions. Even, according to the mother the deceased had not disclosed the name or address of such “lady”. This is difficult to believe. The only cause of discord being another “lady”. Therefore, her parents must have inquired about the particulars or confronted the accused with the same, more so, in the proceedings before the Panchayat. The prosecution has not examined any of the relatives to prove the factum of cruelty. Undoubtedly the house of the sister of the deceased was just at a distance of 10- 12 kms. Had the accused 14 subjected the deceased to cruelty, she would have definitely narrated the incident to her sister. Even she has not been examined. No close relative, villager or a neighbour has been examined to prove this fact. The version that the deceased was having illicit relationship, therefore, does not inspire confidence. Except for the ocular version of PW-1 and PW-2, otherwise there is nothing on record to prove this fact. In fact through the statement of DW-1, PW-7 and PW-4 a different version has come on record. The accused had good and cordial relations with his wife Pushpinder and it was she who was of obstinate nature and always wanted to visit her parental house. 19. Importantly, there is no allegation of any dowry demand. Even with regard to beatings given by the accused there is no evidence of any nature. No complaint, written or oral was made by the parents of the deceased to the Pradhan or the members of the community etc. 20. There are major contradictions in the prosecution story and the version given by the witnesses. According to PW-2, on 27.6.1993 he had visited the Police Station to get the matter reported but PW-15 has categorically denied the same. According to him, he had met PW-2 only on 28.6.1993. 21. It has come on record that the accused had searched for his wife at the house of his in-laws but 15 also his co-brother. This fact stands admitted by PW-2. He was quite concerned for her. His conduct is contrary to the version disclosed by the prosecution case. 22. In fact even according to PW-2, at about 3-4 p.m. on 26.6.1993 itself he had learnt from Sat Pal (his son-in-law) that the girl who had jumped into the canal was actually Pushpinder Kaur. In this regard, relevant portion of his deposition reads as under:- “then I accompanied him and went to the bridge and came to know that the articles left by that lady and her son were with the police. We came to know that the said girl was our daughter Pushpinder at about 6.30 p.m. then I went to the house of my son-in-law Satpal at Bhabour Sahib and consulted with him what to do and thereafter came to Mehatpur to lodge the report at 11 or 11.30 p.m. this fact came to my notice when my son-in-law Satpal had gone to see the child and thereafter told me that she was Pushpinder. My son-in-law Satpal Singh when came to me at 3-4 p.m. he had already seen the son of Pushpinder which was with some person at Nangal at police instance”. 23. The aforesaid statement renders the version disclosed by PW-5, PW-15 and PW-16 to be false. 16 24. Nothing has been proved on record to show that there was any immediate cause of provocation for the deceased to have committed suicide. There are contradictions and improvements in the statements of PW-2 and PW-3. The learned Sessions Judge has taken note of them, but however, in view of other material on record we have not made the same to be the basis for arriving at our conclusion. 25. Therefore, it cannot be said that there is cogent, convincing and reliable material to prove the guilt of the accused beyond reasonable doubt. 26. The accused has had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down in Mohammed Ankoos and others vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94. It cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the persons has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. (Deepak Gupta) Judge. (Sanjay Karol) 7th May, 2010 Judge. (C) 17