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The Petitioner seeks the indulgence of this Hon’ble Court to file the present application for review of its final order dated 29.07. passed in Special Leave Petition (Crl.) No. 6425 of 2019, wherein this Hon’ble Court while dismissing the aforesaid Petition declined to interfere with the judgment and final order dated 25.08.2010 passed by the Hon’ble High Court of Judicature at Allahabad in Criminal Appeal No.5995 of 2010 U/s. 374(2) and 389, Cr.P.C. vide which the Hon’ble High Court had convicted the Petitioner U/s. 304B/34, I.P.C. and sentenced him to undergo life imprisonment. The Petitioner has been sentenced to undergo rigorous imprisonment for life by the Trial Court, which sentence has been confirmed by the Hon’ble High Court. The co-accused has been directed to undergo rigorous imprisonment for 7 years without distinguishing the case from the present petitioner, the allegations against all the accused person are general in nature and nothing specific has been alleged against the petitioner witnesses. Therefore the present review petition is being filed primarily for reduction of life sentence U/s 304 B IPC of the petitioner to already undergone (Petitioner has undergone imprisonment of more than 12 years). It is humbly submitted that the Petitioner’s case highlights one of those numerous cases where the conviction of an accused person is erroneously upheld despite the Prosecution’s utter failure in proving beyond reasonable doubt the preliminary ingredients requisite to establish charges U/s. 304-B, I.P.C. against the accused person so as to warrant the invocation of the presumption as contained U/s. 113-B, Evidence Act, and consequent shifting of the onus of proof upon him and its outright rebuttal. It is humbly submitted that the presumption U/s. 113-B which though was wrongly invoked against the Petitioner had been convincingly and vehemently rebutted by him to confute the charges against him which is evident from the deceased’s Suicide Note (which this Hon’ble Court as well as the Hon’ble High Court did even make any reference to while passing the impugned judgment) and a diary containing devotional songs, unshaken Report and the opinion of the handwriting and fingerprint expert, Petitioner’s Written Statement U/s. 313, Cr.P.C., unwavering testimonies of the four defense witnesses,
and the contradictions and oddities inherent in the testimonies of the Prosecution witnesses and various documentary evidences brought forth by extensive cross-examination. It is pertinent to mention that Section 113-B, Evidence Act uses the words “shall presume”, which expression has been defined U/s. 4, Evidence Act as follows:- “Shall presume”—Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved. In fact, the word “disproved” has been defined U/s. 3 as: A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist. Thus, a conjoint reading of the aforesaid expressions in the context of Section 304-B, I.P.C., and Section 113-B, Indian Evidence Act, makes it abundantly clear that S.304-B, I.P.C. and S.113-B, Evidence Act, provides what the Court shall presume if the ingredients of the provisions are satisfied, but if the evidence in any case is such that the presumptions stand rebutted, the Court cannot hold that the accused was guilty and was punishable for dowry death [vide Devinder @ Kala Ram and Ors. v. State of Haryana, (2012) 10 SCC SCC 763]. It is humbly submitted that this Hon’ble Court while passing the impugned judgment did not make any reference much less reckon with the Suicide Note ( Annexure P-5 @ ) written by the deceased, a bare perusal of which demonstrates that not even a vague reference much less a precise indication had been made by the deceased regarding any harassment or cruelty meted out on her on account of demand of dowry by the Petitioner or the in-laws. Further, the suicide note reveals that the deceased had not placed any blame either on the Petitioner or her in-laws for driving her to take the extreme step of committing suicide rather the said note reflects her love for her husband (the Petitioner) and her inability to contribute to the happiness of everyone around her. It is pertinent to mention that the authenticity of the said
herself with a pistol. On hearing this, they immediately rushed home, wherein they saw the deceased lying dead in the room with a pistol beside her. Thereafter, the Petitioner without further ado telephonically informed the deceased’s father/Complainant/PW-1 at about 07:00 a.m. regarding the factum of suicide committed by the deceased with the aid of a pistol. After sometime, PW-1 along with his wife (PW-2) arrived at the Petitioner’s house, however, to the utter shock and surprise of the Petitioner, they flew into a rage and started assaulting the Petitioner, his father and mother compelling them to leave the house. Thereafter, at about 04:00 p.m., an absolutely frivolous and concocted F.I.R. bearing Case Crime No. 241/2007 (Exhibit Ka-1) is brought into existence by the Complainant by bringing into operation the provisions of Section 304-B, I.P.C. and Section 3/4, Dowry Prohibition Act, roping in all the five members of the Petitioner’s family including the Petitioner’s two younger brothers. As per the Post- mortem report, the cause of death was “Coma” due to ante-mortem fire arm injury sustained in the head region. This Hon’ble Court failed to take into consideration that the said F.I.R. was lodged after a considerable delay of about 9 (nine) hours from the time of the alleged occurrence despite the fact that the distance between the alleged place of occurrence and the Police Station is merely 71/2(seven and a half) kms. Moreover, the Complainant had failed to provide any plausible explanation, much less any reason at all for such an enormous delay in reporting the alleged incident. It is further humbly submitted that this Hon’ble Court also failed to take into consideration that no weapon was recovered either from the possession of the Petitioner or at his instance. It is humbly submitted that this Hon’ble Court did not appreciate in right perspective the Petitioner’s Written Statement (Paper No. 29 Ka/3 and 29 Ka/4) filed in his defense, in which he had stated that he had telephonically informed PW-1 regarding the suicide of the deceased at about 07:00 a.m., which fact finds corroboration from the testimony of PW-2 (deceased’s mother) and PW-3 (deceased’s brother) who admitted in unmistakable terms that the Petitioner had telephonically informed them about the ‘death’ of the deceased at about 07:00 a.m., which admissions patently run contrary to the version asserted by PW-1 in his testimony and previous statements
and cogently establishes the fact that the deceased had committed suicide. The Petitioner had further stated in the said WS that he had on several occasions tried to take his deceased wife along with him to the place of his posting in the Army but she never agreed to accompany him (corroborated by PW-3’s testimony). The Petitioner further stated that since the deceased’s marriage had taken place against her wishes, deceased used to be completely engrossed in worshipping and writing devotional songs in a diary (corroborated by PW-2’s testimony) and that she never took interest in establishing relationship with him and that no marital relationship could get established between them. It is pertinent to mention that the said factum stands substantiated by the categorical admissions of PW-1, PW-2 and PW-3 in their testimonies to the effect that the deceased did not live in the same room as the Petitioner. It is further pertinent to mention that the said witnesses have also testified to the fact that the deceased used to do Bhajan Kirtan and spent her time in worshipping. The Petitioner had further stated that since his deceased wife was raised in Pilibhit city, she was not happy in living in a small village after marriage and that her desires of living in a big city were not getting fulfilled, she slipped into depression. The Petitioner had also stated that since he believed that his deceased wife would get fine in a few days so he asked the deceased on 13.09.2007 (in the night before the incident) to join him to the place of posting, however, she refused, about which he had informed the deceased’s parents and they also tried to convince the deceased but she did not agree and she slipped into depression and committed suicide next morning by shooting herself with a pistol. It is further humbly submitted that this Hon’ble Court failed to take into consideration the testimony of the Petitioner’s neighbor (DW-
- who had materially corroborated the defense version. One important point that needs particular emphasis is that DW-3 in his deposition had categorically stated about seeing a pistol lying beside the deceased when he arrived at the spot soon after the occurrence and further witnessed its removal from the spot by the Police. It is pertinent to mention that the defense had admitted the testimony of DW-3 for the reason that no cross-examination on the factual aspect narrated by him in the examination-in-chief was made by the Ld Public
NCT) Delhi, (2003) 8 SCC 80; Biswajit Halder @ Babu Halder & Ors. vs. State of West Bengal, (2008) 1 SCC 202 and Narayanamurthy vs. State of Karnataka & Anr, (2008) 16 SCC 512]. Moreover, not even a shred of evidence was brought forth which could illustrate the occasions and the manner in which the demand or the harassment was given effect to by the Petitioner. This Hon’ble Court in Amar Singh v. State of Rajasthan [(2010) 9 SCC 64] has held that “A prosecution witness who merely uses the word "harassed" or "tortured" and does not describe the exact conduct of the accused which, according to him, amounted to harassment or torture may not be believed by the Court in cases under Section 498A and 304B IPC.” It is further humbly submitted that this Hon’ble Court did not give any regard to the fact that neither any written complaint regarding the alleged harassment for dowry by the Petitioner was filed before any officer or the police authorities nor any inquiry regarding the alleged assault having been committed upon the deceased was made from the neighbors of the Petitioner during the intervening period of marriage and death of the deceased nor the deceased’s parents or family members ever visited the deceased’s house during that period. It is humbly submitted that this Hon’ble Court erred in appreciating the well-settled principles that the Prosecution is obligated to establish the factum of the deceased having being subjected to cruelty or harassment soon before her death by leading cogent and clinching evidences and cannot take recourse of unsubstantiated bald statements. In this regard, it is pertinent to outline the observations of the Hon’ble High Court of Judicature at Allahabad in Budhiman Singh v. State of U.P. [Criminal Appeal No. 987 of 2016, decided on 20 April, 2018] which are reproduced below for the kind perusal of this Hon’ble Court: “29. Mere bald allegation regarding demand of dowry and cruelty or harassment on that account will not suffice the essential ingredient of the provisions of dowry death. As per contents of the first information report also, a general allegation of demand of dowry has been leveled against the persons named therein but nothing specific has been stated. No particular dates or associate evidence has been led to establish the fact that the deceased was subjected to cruelty or the harassment soon
before her death and that too in connection with any demand for dowry. The evidence led by the prosecution has to be of the extent which may establish that the harassment was to the extent of resulting in the death of deceased. Mere negative statements in connection with insufficient dowry will not suffice to establish the provisions of dowry death.” This Hon’ble Court in Durga Prasad and Anr. v. State of M.P. [(2010) 9 SCC 73] held as follows: “14. Having carefully considered the submissions made on behalf of the respective parties, we are inclined to allow the benefit of doubt to the Appellants having particular regard to the fact that except for certain bald statements made by PWs.1 and 3 alleging that the victim had been subjected to cruelty and harassment prior to her death, there is no other evidence to prove that the victim committed suicide on account of cruelty and harassment to which she was subjected just prior to her death, which, in fact, are the ingredients of the evidence to be led in respect of Section 113-B of the Indian Evidence Act, 1872, in order to bring home the guilt against an accused under Section 304-B IPC.” It is pertinent to mention that the deposition of the two Investigating Officers i.e. PW-5 (first IO) and PW-6 (second IO) and PW-7 (Head Constable, prepared the Chik Report) brings into light the perfunctory investigation conducted by the Investigating agency which was both slipshod and offhand and this Hon’ble Court substantially overlooked the same. Furthermore, from a bare perusal of their testimonies it becomes evident that all the important documents related to the case which were allegedly prepared during the investigation were manufactured after rumination by the Investigating agency at a much later stage after the occurrence of the alleged incident and were brought into existence in collusion and close cohesion with the Complainant/PW-1 so that it befits the Prosecution’s case. The appalling lacunas in the Prosecution’s case can be gauged by the facts delineated as below: No investigation whatsoever was done for the recovery of the alleged weapon.
completely belie the Prosecution’s case of dowry death and explicitly bring out the level and extent of fabrication crafted to inculpate the innocent Petitioners and their family members for the crime which they never committed. It is humbly submitted that this Hon’ble Court failed to appreciate the well-settled principle of criminal law to the effect that in cases of homicidal or suicidal deaths occurring in unnatural circumstances an onerous duty is cast upon the Courts to scrutinize the evidences with utmost care and caution in order to draw any inference about the complicity or otherwise of the accused persons. However, in the present case, this Hon’ble Court overlooked the fact that despite the Prosecution having been miserably failed to prove the two essential ingredients viz. demand of dowry and subjection of the deceased to harassment and cruelty soon before death, the Hon’ble Courts below had erroneously invoked the presumption U/s. 113-B, Evidence Act, and thereby, convicted the Petitioner holding that he has failed to discharge the onus so shifted, which procedure is absolutely impermissible, unwarranted and unsustainable in view of the statutory provisions and the well-settled principles pronounced by this Hon’ble Court in a catena of its decisions rendered in past several decades. This Hon’ble Court in Baijnath and Ors. v. State of M.P. [(2017) 1 SCC 101] After examining and analyzing the horizons and scope of the applicability of the provisions as contained in Sections 304-B and 498- A, I.P.C. and Section 113-B, Evidence Act, held as follows (speaking through Hon’ble Mr. Justice Amitava Roy): “(33) A conjoint reading of these three provisions, thus predicate the burden of the prosecution to unassailably substantiate the ingredients of the two offences by direct and convincing evidence so as to avail the presumption engrafted in Section 113B of the Act against the accused. Proof of cruelty or harassment by the husband or her relative or the person charged is thus the sine qua non to inspirit the statutory presumption, to draw the person charged within the coils thereof. If the prosecution fails to demonstrate by cogent coherent and persuasive evidence to prove such fact, the person accused of either of the above referred offences cannot be held guilty by taking refuge only of the presumption to cover up the shortfall in proof.
(34) The legislative primature of relieving the prosecution of the rigour of the proof of the often practically inaccessible recesses of life within the guarded confines of a matrimonial home and of replenishing the consequential void, by according a presumption against the person charged, cannot be overeased to gloss-over and condone its failure to prove credibly, the basic facts enumerated in the Sections involved, lest justice is the casualty. (35) This Court while often dwelling on the scope and purport of Section 304B of the Code and Section 113B of the Act have propounded that the presumption is contingent on the fact that the prosecution first spell out the ingredients of the offence of Section 304B as in Shindo Alias Sawinder Kaur and another Vs. State of Punjab – (2011) 11 SCC 517 and echoed in Rajeev Kumar Vs. State of Haryana – (2013) 16 SCC 640. In the latter pronouncement, this Court propounded that one of the essential ingredients of dowry death under Section 304B of the Code is that the accused must have subjected the woman to cruelty in connection with demand for dowry soon before her death and that this ingredient has to be proved by the prosecution beyond reasonable doubt and only then the Court will presume that the accused has committed the offence of dowry death under Section 113B of the Act.” Hence, in the interest of justice it is humbly prayed before this Hon’ble Court that the present Review Petition be allowed so that grave miscarriage of justice may be prevented. LIST OF DATES 20.04.2007 The marriage of the Petitioner and the deceased Geeta Bharti (Complainant/PW-1’s daughter) was solemnized on 20.04.2007. It is pertinent to mention that no dowry was ever demanded either before or at or after marriage by the Petitioner or his family. 14.09.2007 On 14.09.2007 at about 06:30 a.m. in the morning, while the Petitioner along with his mother (co-accused) was irrigating the paddy crops at his fields, the Petitioner’s father (deceased co-accused) came to the field and informed them that the deceased Geeta Bharti had committed suicide by shooting herself. On hearing this, they immediately rushed home, wherein they saw the deceased lying dead in the room with a pistol beside her. Thereafter, the Petitioner without further
The Petitioner immediately informed the IO about the suicide note and handed over the photo copies of both the diary and the suicide note, however, the IO did not investigate into it. 15.09.2007 On 15.09.2007, the Post-Mortem of the body of the deceased was conducted at about 02:30 p.m. in the District Hospital, Bareilly, and a Post-Mortem Report No.1121/2007 was prepared by PW-4 as per which the cause of death was “Coma” due to ante-mortem fire arm injury sustained in the head region. It is pertinent to mention that in sensitive cases involving unnatural deaths as the present one, a specific request is made by the IO before the concerned doctor for conducting the Post-Mortem preferably by a team of doctors, however, a bare perusal of the said Report shows that no such request was made by the IO to the concerned doctor either through a prescribed form or through the police papers filed by the IO. Moreover, despite the report states that a team of two doctors conducted the Post-Mortem, however, from the absence of the attestation or signatures of the second doctor, his presence and participation in the examination becomes doubtful. Furthermore, as per the Inquest Report/ Panchayatnama, the inquest proceedings stood concluded on 14.09.2007 at about 06:30 p.m. but the Post-Mortem commenced only on the next day i.e. 15.09.2007 at about 02:30 p.m. Further, the date and time of receiving the dead body of the deceased by the concerned hospital is also not mentioned in the Post-Mortem Report. It is humbly submitted that no explanation whatsoever has been tendered by the Prosecution for the delay caused in conducting the Post-Mortem. 02.11.2007 It is pertinent to mention that no weapon was recovered either from the possession of the Petitioner or at his instance during the investigation. After the completion of the investigation, a Charge-sheet No. 14/2007 dated 02.11. (Exhibit Ka-6) was filed against all the five accused persons. Thereafter, the Ld. Trial Court took cognizance of the offences and directed issue of process. 24.09.2008 During the trial, the Petitioner’s father succumbed to the chronic illness and consequently, the proceedings against him stood abated. Thereafter, the Ld. Chief Judicial Magistrate vide order dated 24.09.2008 committed the case of the remaining co-accused persons to the Sessions Court for further proceedings which was numbered as Sessions Trial No.1053 of 2008.
26.03.2009 Since the co-accused Narendra Pal was a juvenile at the time of the alleged commission of the crime, therefore, the Ld. Trial Court sent his case to the Juvenile Justice Board vide its order dated 26.03.2009, while the remaining three accused persons stood trial before the Sessions Court. 29.07.2009 Thereafter, the Ld. Additional Sessions Judge, Court No.4, Bareilly, vide order dated 29.07.2009 framed charges U/s. 304B/34, I.P.C. and Sections 3/4 of Dowry Prohibition Act against the Petitioner, his mother and brother (Kunwar Pal). The accused persons abjured the charges leveled against them and claimed trial. 12.10.2009 The first witness called upon for examination on oath by the Prosecution as PW-1 was the deceased’s father/Complainant. During the examination-in-chief conducted on 12.10.2009, PW-1 in his deposition had made several contradictory statements before the Ld. Trial Court and had further materially improved upon his previous statements U/s. 161, Cr.P.C which was recorded by the IO (PW-5) during the investigation. First major improvement was with regard to his allegations of dowry against the accused persons. PW- deposed that he had given Rs. 3,15,000/- in cash, household articles amounting to Rs. 2,00,000/- and gold jewelries weighing 10 tolas at the time of ‘marriage’ contrary to what he had stated in his F.I.R. wherein he alleges to have given the aforesaid cash and articles at the time of ‘lagan’ and gold jewelries weighing 10 tolas during ‘vidai’. Further, in his frivolous F.I.R., PW-1 had alleged that he had given Rs. 3,15,000/- cash in ‘lagan’ for purchasing a four-wheeler vehicle, however, he has not stated so in his deposition held on 12.10.2009 before the Ld. Trial Court. It is pertinent to mention that a bare perusal of his testimony shows that PW-1 had failed to substantiate his claim w.r.t. harassment and demand of more dowry by producing evidence with regard to the occasions and the manner in which his daughter was harassed for dowry by the accused persons or that the accused persons have demanded dowry. Furthermore, from the testimony of PW-1, no evidence seems to be elicited with respect to the fact that ‘soon before the death’, the deceased was subjected to harassment on account of bringing insufficient dowry by the accused persons. 28.10.2009 PW-1 was called for his cross-examination on 28.10.2009. It is pertinent to mention that PW-1 during cross has admitted the fact that during the relevant time, the Petitioner’s two younger brothers (co-accused) were studying in 11th^ std. and 12 th^ std. respectively, at Pilibhit, however, it is pertinent to mention that despite the said fact PW-1 had falsely implicated the two in the commission of the crime which
9837494276 from the Petitioner (stated so in the F.I.R. too). However, there exists a contradiction in the testimony of PW- 1 and PW-3 since PW-3 claims that the said number belongs to him and that the information of deceased’s death was received by him on his mobile phone from the Petitioner. 30.03.2010 On 30.03.2010, the deceased’s mother was examined as PW- on oath before the Ld. Additional Sessions Judge, Court No.4, Bareilly. It is pertinent to mention that PW-2 did not support the prosecution version and her deposition do not corroborate with the testimony of her husband PW-1 w.r.t. the demand of dowry which is evident by the fact that PW- categorically admitted that Rs. 3,15,000/- cash and articles amounting to Rs. 2,00,000/- which were given at the time of ‘lagan’ were not demanded as dowry by the accused persons and that they gave the said amount and articles out of their free will, desire and pleasure. PW-2 further admitted that they had a normal relationship with the accused persons from the time of fixation of marriage till the time the marriage had taken place (duration of which was 1 month as per PW-2 which is contrary to PW-1’s testimony who admitted the duration to be 1 year) and that no demand of dowry was made by them during the said period. Furthermore, PW-2’s deposition consisted of several improvements upon her previous statements which are evident by the fact that for the first time she stated before the Ld. Trial Court that her daughter was assaulted by the accused persons for dowry. It is pertinent to mention that she did not state the aforesaid fact before the IO/PW-5 in her S.161, Cr.P.C. statement, which also finds corroboration from PW-5’s testimony recorded on 19.04.2010. Another lie which PW-2 deposed before the Ld. Trial Court was that she had complained about the demand of a Bolero car to the Petitioner’s uncles (mausa and fufa), however, it is pertinent to mention that she did not state the same in her previous statements recorded by PW-5, whose testimony again substantiates the aforesaid fact. One of the most important fact elicited during the cross- examination of PW-2 was her crucial admission w.r.t. the factum of receiving the information of ‘death’ of her daughter at about 07:00 a.m. from the Petitioner via mobile phone. The said admission also finds corroboration from the testimony of PW-3 who also admitted in unmistakable terms that the Petitioner had telephonically informed them about the ‘death’ of the deceased at about 07:00 a.m. Thus, it can be seen that the aforesaid admissions patently run contrary to the version asserted by PW-1 in his testimony and previous statements and cogently establishes the fact that the deceased had committed suicide. The said admissions also
completely belie the Prosecution’s case of dowry death and explicitly bring out the level and extent of fabrication crafted to inculpate the innocent Petitioner and their family members for the crime which they never committed. 08.04.2010 The deceased’s brother was examined as PW-3 on 08.04.2010. PW-3 introduced a new version in his deposition before the Ld. Trial Court that Rs. 3,15,000/- cash was given in ‘lagan’ for purchasing an Alto car apart from other household articles. However, his testimony does not even faintly suggest that the said amount or articles were either given to or demanded as dowry by the accused persons. Moreover, PW-3 in his cross-examination unambiguously admitted that the gold jewelleries weighing 10 Tolas and household articles were not demanded by the accused persons and that they gave the same out of their free will and desire. Furthermore, another improvement of previous statements made by PW-3 was that his deceased sister was assaulted by the accused persons for dowry, however, the falsity of the said statement becomes evident by the fact that his statement recorded U/s. 161, Cr.P.C. by the IO/PW- during investigation is silent on that aspect. Further, the factum of PW-3’s ignorance not only about the time when the marriage of his sister was fixed with the Petitioner (even though he claims to have met the Petitioner 4-5 moths prior to marriage) or regarding the day/month of his sister’s visit to her paternal home after marriage or the duration for which she stayed there (which facts do not appeal to reason since he was deceased’s brother and it would be expected of him to be aware of such fact) and moreover, his admission of meeting his sister only once after marriage, substantiates the fact that he is an unreliable witness and that his testimony is absolutely bogus. It is pertinent to mention that PW-3 has categorically admitted the fact that he received the information about the ‘death’ of his sister on his mobile phone while he was in Pilibhit, where after, he gave the said information telephonically to his uncle at about 07:00 a.m., which fact is contrary to what he stated in his examination-in-chief. Further, he claimed to have gone to the P.S. Kyolidia along with his father to lodge the F.I.R. after reaching the spot from Pilibhit, however, neither the testimony of PW-1 nor PW-2 or PW-5 reveals his presence on the relevant day at the place of occurrence. Furthermore, it is pertinent to mention that PW- 3’s statement was recorded on 10.10.2007 i.e. 26 days after the date of the incident, which fact substantiates his absence from the place of occurrence on 14.09.2007 and further goes
their statements) but also did not find it necessary to note down the factum of not meeting the aforesaid persons on the place of occurrence on the relevant day in the Case Diary. It is humbly submitted that the testimony of PW-5 proves that neither did he visit the place of occurrence on the date of the incident nor did he prepare the spot map rather an absolutely false and fabricated facts were crafted in the Case Diary by the Constable Vishwajeet much later from the date of occurrence. This gets further substantiated by non- examination of the Constable Vishwajeet Singh by the Prosecution. 07.05.2010 The second IO (Circle Officer (CO), posted at Nawabganj, District Bareilly) was examined on oath as PW-6, who investigated the case till 02.11.2007 after the same was transferred to him on 29.09.2007. PW-6’s deposition further depicts the deplorable manner in which the investigation was conducted till the filing of the Charge-sheet. In his testimony, PW-6 admitted that all the Parchas in the Case Diary in which the proceedings of the investigation of the case from 29.09.2007 till 02.11. were recorded were written by the Head Constable Suresh Chandra upon his dictation. Further, PW-6 admitted that he got the PW-3’s (deceased’s brother) statement recorded by the same Constable upon his dictation since he had problem in his hand, however, the veracity of his testimony becomes questionable in view of the fact that neither did he mention about the same in the Case Diary nor PW-3’s statement U/s. 161, Cr.P.C. bears the signature of the Constable. It is pertinent to mention that the Prosecution neither examined the Constable Suresh Chandra to testify/corroborate the said facts nor gave any explanation for withholding him as prosecution witness. Thus, the aforesaid facts and admissions of PW-6 goes on to prove that PW-6 did not conduct the investigation himself and only affixed his signatures on the documents in a routine manner. 12.05.2010 The last witness examined by the Prosecution as PW-7 was the Head Muharir, P.S. Kyolidia, who allegedly prepared the chik F.I.R. bearing Case Crime No. 241/2007. In his deposition recorded on 12.05.2010, PW-7 admitted that no date was mentioned in the Chik Report (Exhibit Ka-7) below the signature of the Circle Officer, which fact also finds corroboration from the testimony of PW-5. Furthermore, as per his admission, ‘Seen’ is mentioned in Exhibit Ka-7 above JM IIIrd^ dated 17.09.2007 and CJM dated 22.09.2007, but there is no affixation of signature. The said fact proves that the Chik and its corresponding report were not prepared at
the time which has been claimed by the Prosecution rather the said documents clearly appear to be ante-timed and were fabricated after much deliberation. During examination, PW-7 claimed that the Panchayatnama and the related documents (Exhibit Ka-9 to Ka-14) were in the handwriting of the S.O. Sherbahadur but he categorically admitted his absence during the preparation of the Panchayatnama. It is pertinent to mention that as per his admission none of the aforesaid documents depicts the name of the first accused (i.e. State v. first accused, etc.). Further, it becomes evident from the admission of PW-7 that the Case Crime Number was not mentioned in Exhibit Ka-12, Exhibit Ka-13 and Exhibit-14 and moreover, Exhibit Ka-12 does not indicate either the name of the deceased or the description of the case or the Police Station. Furthermore, PW-7 could not identify the handwriting on the handmade spot map affixed to Exhibit Ka-12. PW-7 further testified the fact that there were two cuttings at the place of time of incident mentioned in the column no.2 of the challan lash (sketch of the dead body) and that the column no.3 was also not filled. Thus, from the above testimonies of PW-5, 6 and 7, it becomes evident that all the important documents related to the case which were allegedly prepared during the investigation were manufactured after rumination by the Investigating agency at a much later stage after the occurrence of the alleged incident and were brought into existence in collusion and close cohesion with PW-1 so that it befits the Prosecution’s case. 14.05.2010 After the conclusion of the examination of the aforesaid Prosecution witnesses, the statement U/s. 313, Cr.P.C., of the Petitioner was recorded by the Ld. Sessions Judge on 14.05.2010, wherein the Petitioner had stated that neither he had committed the murder nor did he harass the deceased for dowry and that he had been falsely implicated. The Petitioner had also filed a Written Statement (Paper No. 29 Ka/3 and 29 Ka/4) in his defense, in which he had stated that he had telephonically informed PW-1 regarding the suicide of the deceased at about 07:00 a.m., which fact finds corroboration from the testimony of PW-2 (deceased’s mother) and PW-3 (deceased’s brother) who admitted in unmistakable terms that the Petitioner had telephonically informed them about the ‘death’ of the deceased at about 07:00 a.m., which admissions patently run contrary to the version asserted by PW-1 in his testimony and previous statements and cogently establishes the fact that the deceased had committed suicide.
