IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 210 of 1998 Date of Decision: 12.7.2010 State of H.P. …Appellant. Versus. Nand 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? No. For the Appellant: Mr. Rajesh Mandhotra, Deputy Advocate General. For the Respondents: Mr. Virender Rathore, Advocate. No. 2 and 3. Per Deepak Gupta, J.(Oral). 1. This appeal by the State is directed against the judgement dated 31.12.1997 delivered by the learned Additional Sessions Judge-2, Kangra at Dharmshala in Sessions Case No. 8-N/VII/95 whereby he acquitted the accused of having committed offences punishable under Sections 498-A, 304-B read with Section 34 of the Indian Penal Code. 2. The undisputed facts are that the deceased Gurmeet Kaur, was married to accused Arjun Singh. Accused Nand Singh was her father-in-law and accused Gian Kaur was 2 her mother-in-law. Shri Nand Singh died during the pendency of the appeal and the appeal against him stands abated vide separate order of date. It is also not in dispute that on 28.2.1993 Gurmeet Kaur was admitted in Tilak Hospital, Dhangu Road, Pathankot by her husband with 100 percent burns at about 9-10 p.m. She unfortunately did not survive and expired on 4.3.1993. 3. The prosecution version is that on 1.3.1993 PW-3 Harpal Singh, brother of the deceased, lodged a report with the police to the effect that his sister Gurmeet Kaur had been taken to the hospital with burns and he had not been informed. In this report it was also stated that deceased had been married to accused Arjun Singh about two and half years earlier and at the time of marriage the family of the deceased had given sufficient dowry as per their means but the accused persons kept demanding dowry and once he, Harpal Singh, had given Rs.3,000/- to meet such a demand but another demands were raised. According to the complainant, the accused not only troubled the deceased by demanding dowry but also used to beat her and also used to harass her. She used to complain in this regard to her family members. According to the police F.I.R. Ext.PW-10/A was lodged on 3 1.3.1993 at 6.15 p.m on the basis of this complaint. The police officials went to the spot. After the death of Gurmeet Kaur her body was subjected to post mortem and it was found that she had died due to cardio- respiratory failure on account of 100% burns. On completion of investigation, the accused were challaned and charged with having committed the offences aforesaid. They have been acquitted after trial and hence the present appeal by the State. 4. We have heard Shri Rajesh Mandhotra, learned Deputy Advocate General for the State and Shri Virender Rathore, learned counsel for the remaining accused Gian Kaur and Arjun Singh. 5. There is no dispute that the deceased died due to burns. The defence is that the burns were suffered accidentally while the deceased was handling a stove at about 8.45 p.m in village Beli Mahantan, Tehsil Nurpur, Himachal Pradesh. Within half an hour of the deceased receiving the burns she was admitted in Tilak Hospital, Pathankot vide OPD card Ext.PW-1/A/1. The doctor at the hospital immediately sent intimation vide Ext.PW- 1/A/2 to the SHO Police Station Dhangu Pir. Thereafter, the incharge of the police post Dhangu Pir reached the 4 hospital and moved an application Ext.PW-1/B seeking the opinion of the doctor whether Gurmeet Kaur was in a fit position to give a statement. PW-1 Dr. Tilak made his endorsement on this letter that the patient is fit to give statement. However, no such statement is on record. The explanation given by the Investigating Officer PW-14, who was incharge of Police Post Dhangu Pir, is that though on the letter Ext.PW-1/B the doctor gave his opinion that the patient was fit to give her statement but by the time this Investigating Officer reached the bed of the patient she was not in a position to speak and her statement could not be recorded. According to him, he made an entry in this behalf in daily diary register on return to the police post and copy of the same is Ext.PW- 14/A. This portion of the statement of the Investigating Officer has found to be incorrect by the learned trial Court. There is no explanation why once the Investigating Officer had sought and obtained the opinion of the doctor why he did not again approach the doctor and request him to certify whether the patient was still in a position to make the statement or not. In fact, as observed by the learned trial Court the Investigating Officer tried to withhold the letter Ext.PW-1/B. This 5 witness has been confronted with the letter Ext.PW-14/C, translation of which reads as follows:- “To The Hon’ble Medical Officer, Tilak Hospital, Pkt. Sub.: Supply of Medico Legal Opinion. Hon’ble Sir, It is humbly submitted that it has been learnt that some Smt. Gurmeet Kaur has made some different statements before her brother and other relatives. Therefore, it is necessary to record her revised statement. Kindly give your opinion whether Smt. Gurmeet Kaur is in a position to make a statement or not. Incharge, Police Post, Dhangu Pir (H.P.)” 6. This letter also contains an endorsement dated 2.3.1993 to the effect that the patient is not fit to make a statement. A bare reading of this letter indicates that Gurmeet Kaur was making different statements to her brother and relatives. This obviously means that there was some statement which she had made earlier. This is also obvious from the fact that in this document the Investigating Officer has also written that revised statement has to be recorded. This clearly indicates that previously this witness had recorded the statement of the deceased on 28.2.1993. It is also very important to note 6 that whereas on Ext.PW-1/B Dr. Tilak PW-1 has made an endorsement that the patient is fit to give statement at 9.35 p.m. according to the Investigating Officer by the time he reached her bed she was not in a position to make a statement. This is totally contrary to the report of Lt. Col. S.B.Darogar (Retd.), who was treating the patient as is apparent from the document Ext.PW1/A/3 in which on 1st March, 1993 he has recorded that the patient was conscious, thirsty and asking for water. The learned trial Court has observed that this endorsement of the doctor was withheld from the Court and not filed with the challan. This also clearly indicates that the investigation in the matter has been totally unfair. 7. Another reason to hold that the investigation has been totally unfair is that whereas F.I.R Ext.PW-10/A is supposed to have been recorded on 1st March, 1993 at 6.15 p.m, it was produced before the concerned Magistrate only on 5th March, 1993. There is no explanation why there was four days delay in producing this F.I.R before the concerned Magistrate. In view of the above circumstances, the learned trial Court was justified in holding that a presumption can be drawn that the first statement made by the deceased went in favour 7 of the accused and that has been deliberately withheld from the Court. 8. In addition thereto, the case of the prosecution with regard to the demand of dowry also does not stand satisfactorily proved. According to her brother Harpal Singh, PW-3, the deceased came to her parental house three months after her marriage in April, 1991 and complained that the accused persons were demanding Rs. 3000/-. This amount was given to her and she returned to her matrimonial home the next morning alongwith her husband who had come with her. 2-3 months later the deceased again came alongwith her husband accused Arjun Singh to the house of her brother and demanded Rs.5,000/- and she was actually given Rs.5000/-. Thereafter, his sister came again and stated that her in-laws were demanding a motor-cycle and complained that she had been beaten up but this demand could not be fulfilled and thereafter his sister went back home. She never came back to his house after that. It is thus apparent that the demands, if any, were made in the year 1991 whereas the incident occurred on 28.2.1993. According to PW-3 after 1991 the deceased Gurmeet Kaur never came to her parental home. 8 9. PW-3 Harpal Singh brother of the deceased stated that when his sister came home for the first time his father withdrew Rs.3000/- from the Punjab State Bank, Pathankot and then gave the money to the accused. According to him, the next demand of Rs.5,000/- was met by his mother by pawning her jewellery with a goldsmith named Chhaju of Pathankot. PW-4 Chanan Singh, father of the deceased, however, gives a totally different version. Though initially he had stated that he had withdrawn the amount of Rs.3,000/- from the bank but when questioned further he stated that this amount was available with him in cash and he had paid it in cash. Further according to PW-4 neither he nor his wife paid an amount of Rs.5000/- on the second occasion. Only Rs.2,000/- was paid. He has not stated a word that his wife pawned her jewellery with a goldsmith. Admittedly, no complaint about such demand of dowry was ever made by the family members of the deceased to the Panchayat, members of the brotherhood or to the police. Therefore, the version of the prosecution that the accused were troubling the deceased and demanding dowry has also not been proved beyond doubt. 9 10. In view of the above discussion, the learned trial Court was fully justified in acquitting the accused. We find no merit in the appeal. The same is accordingly dismissed. The bail bonds furnished by the accused are ordered to be discharged. ( Deepak Gupta ) Judge. 12th July, 2010 ( Sanjay Karol ) ™ Judge.