Uttarakhand High Court
Sundar Lal vs State on 12 January, 2018
Author: Alok Singh
Bench: Rajiv Sharma, Alok Singh
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Appeal No. 100 of 2013
Sundar Lal ....Appellant
Versus
State ....Respondent
Mr. Ramji Srivastava, Amicus Curiae, for the appellant.
Mr. Amit Bhatt, Dy.A.G. for the State.
Judgment Reserved- 05.01.2018
Date of Judgment - 12.01.2018
Coram: Hon'ble Rajiv Sharma, J.
Hon'ble Alok Singh, J.
Per: Hon'ble Rajiv Sharma, J.
This appeal is instituted against the judgment and order dated 21.12.2012, rendered by learned Sessions Judge, District Tehri Garhwal, in Sessions Trial No.10 of 2012, whereby the appellant was charged with and tried for the offences under Section 498-A, 304-B, 302 IPC and Section 3/4 of Dowry Prohibition Act. The appellant was convicted and sentenced to undergo life imprisonment and to pay a fine of Rs.5,000/- under Section 302 IPC and in default of payment of fine to undergo six months rigorous imprisonment. The appellant was also convicted and sentenced to undergo ten years' rigorous imprisonment under Section 304-B IPC. He was further convicted and sentenced to undergo two years' rigorous imprisonment and to pay a fine of Rs.500/- under Section 498-A and in default of payment of fine to undergo one month rigorous imprisonment. He was further convicted and sentenced to undergo six months' rigorous imprisonment under Section 3/4 of Dowry Prohibition Act. All the sentences were directed to run concurrently.
2. The case of the prosecution, in a nutshell, is that one Bachan Das, S/o Bag Das, R/o Village Gawana, Patti Dangar, District Tehri Garhwal has submitted a Tehrir before the Revenue Police Hisriyakhal, Tehri Garhwal with 2 allegations that his daughter Smt. Rameshwari was married with the appellant as per Hindu Rites and Rituals. One daughter was born out of the wedlock. The appellant and his mother and sister-in-law used to harass and administer beatings to his daughter. His daughter used to complain about the maltreatment meted out to her by her in-laws. Whenever she visited her parents house, they used to demand dowry. On 23.12.2011, at midnight, the in-laws of his daughter killed her for dowry. He received the information on 25.12.2011 at 07:30 hours. The appellant has never informed him. The FIR was registered. The inquest report was prepared. Thereafter, the dead body was sent for postmortem examination. The cause of death of the deceased was asphyxia due to strangulation. The matter was investigated and the challan was put up against the accused after completing all the codal formalities.
3. The prosecution has examined as many as ten witnesses in its support.
4. The statement of the appellant was recorded under Section 313 of Cr.P.C. He has denied the case of the prosecution. He has taken the plea of alibi. The appellant was convicted and sentenced, as noticed hereinabove. Hence, the present appeal.
5. Learned Amicus Curiae for the appellant has vehemently argued that the prosecution has failed to prove its case beyond reasonable doubt against the appellant. Learned counsel appearing on behalf of the State has supported the judgment and order dated 21.12.2012.
6. We have heard learned counsel for both the parties and perused the judgment and record very carefully.
37. PW1 Smt. Budhi Devi is the mother of the deceased. According to her, the marriage of her daughter was solemnized with the appellant in the month of Mangsir prior four years prior to her death. The appellant, his mother and his sister-in-law were residing in the house. They were present in the house at the time of her daughter's death. She was harassed by Chandra Devi, Shanti Devi and by her husband for dowry. They were demanding Rs.50,000/-. Her daughter had come three days before Deepawali. In the evening, she told that her in-laws were demanding Rs.50,000/-, failing which she would be killed. She also met her maternal uncle when she was coming to her parental house. She complained about the same to her maternal uncle. She stayed overnight with them. Two months later, she died. They were told about the death by the Pradhan of the village. Her husband, her brother and co-villagers went to her daughter's in-laws village. Her daughter died on 23rd. They received the information on 25th. Her husband came back on 26th and told her that they have strangulated her daughter. In her cross-examination, she reiterated that her daughter has told them three days before Deepawali about the demand of dowry. Whenever, her daughter used to come to her parental house, she used to complain about the harassment meted out to her for bringing insufficient dowry. They have given on the date of marriage television, C.D. player and gold ring. Her daughter was harassed since the very beginning of her marriage. They have told their son-in-law to mend his ways. Her daughter's mother-in-law and sister-in-law have also demanded the dowry. They have not lodged any report about the harassment meted out to their daughter with the police or patwari. She was told about the killing of her daughter by her husband and brother. The Naib Tehsildar has recorded her statement. She has given the statement before the Naib Tehsildar that 4 the appellant has strangulated her daughter. She has denied the suggestion that the demand of Rs.50,000/- was never raised by the appellant.
8. PW2 Bachan Singh has corroborated the statement of PW1 Smt. Budhi Devi. He has deposed that the marriage between the appellant and his daughter was solemnized four years back in the month of Mangsir. She was maltreated by her in-laws. They used to taunt her for bringing insufficient dowry. They used to demand Rs.50,000/-. They started demanding the money immediately after the marriage. His daughter has visited them three days before Deepawali. She was accompanied by her daughter. She has told them that her in-laws were demanding dowry. He persuaded his daughter and gave her a sum of Rs.400/-. He assured her that he along with her maternal uncle would come to her in-laws house. They would convince her husband to mend his ways. She went to her matrimonial house. She died after two months. He received the information of her death on 25th. The information was supplied by the Pradhan of the village. They went to her in-laws house. Patwari opened the lock. The dead body was lying on the double bed in the room of the appellant. Her mother-in-law and sister-in-law were present on the spot. Panchayatnama was prepared. He saw the dead body. The blood was oozing out from the ear and nose. He has noticed the signs of nails on the neck. He was also made Panch. They took the dead body for postmortem examination. In his cross-examination, he has deposed that the lock was not sealed. She was covered with a black bed sheet. The blood was oozing out from the ear and nose. The blood was also lying on the bed sheet. The appellant and other members of the family have not demanded dowry at the time of marriage. The appellant used to visit his village but he used to drink. He has given sufficient dowry at the 5 time of marriage. The dead body was swollen. Foul smell was coming from the body. The behavior of his son-in-law with his daughter was normal for six months and thereafter, it was abnormal. He was told by the mother-in- law of his daughter that his daughter was serious. His statement was recorded by Naib Tehsildar. He forgot to mention the demand of Rs.50,000/- in the report. He has told to Naib Tehsildar about the demand of Rs.50,000/- but he did not know why Naib Tehsildar has not written it. He has gone to his daughters' in-laws house for 3-4 times. Everytime she used to complain about the dowry demand. He has gone to the Pradhan of his daughter's in-laws village. He has requested her to intervene in the matter. When they visited the house of his daughter's in-laws, Chandra Devi and Shanti Devi were present. The appellant was missing.
9. PW3 Raghubir Singh testified that he was the night guard in the Village Panchayat Tulakot in the year 2004. On 24.12.2011, at about 10:00 PM, he was informed by the husband of Village Pradhan Smt. Meenakshi Rana from Srinagar that the appellant has killed his wife and escaped. Jaspal has informed that the appellant has killed his wife during the night of 23.12.2011 and her dead body was lying on the bed. Jashpal Singh has received this information from Bhagwat. He has further deposed that when the appellant killed Rameshwari Devi, his mother and sister-in-law were present in the house. Thereafter, he informed the Patwari at 10:30 PM. Patwari came on the spot at 11:30 PM. Patwari examined the dead body. Panchayatnama was prepared on 25th. He received the information on 27.12.2011 that the appellant has reached his home. He went to the house of the appellant on 28.12.2011. He made the inquiry from the appellant. The appellant told him that he has committed mistake. This 6 extra judicial confession was made by him in the presence of Rakesh and Guddu. When he has taken the appellant to the police station, his brothers Rakesh and Guddu were also with him. He has informed the parents of deceased on 25th at about 05:00 AM in the morning. According to him, neck of the deceased turned bluish.
10. PW4 Shyam Das has deposed that the deceased was his niece. The marriage between the appellant and the deceased was solemnized four years back. She has come for the last time to her parents house three days before Deepawali. She has also stayed with him for half an hour. She has told him that she was harassed by her in-laws and they were demanding Rs.50,000/- as dowry. She stayed with her parents for one night. He received a telephonic call at 8-9 AM on 25.12.2011 from his brother-in-law PW1 Bachan Das that Rameshwari was killed and they have to go to village Daang. He went to village Daang with the father of deceased and co-villagers. The sister-in-law and mother-in-law of deceased were present on the spot. The appellant has escaped. They opened the door. The dead body of Rameshwari was lying on a diwan (bed box). They removed the clothes. Bluish colour nail marks on the throat were visible. Blood was oozing out from the ear and nose. Patwari prepared the panchayatnama. He was also made panch. Thereafter, the dead body was taken for postmortem examination. In his cross-examination, he has deposed that his niece has visited him 2-3 times. She has told him that her in-laws were demanding Rs.50,000/-. He has denied the suggestion that the appellant was falsely implicated.
11. PW5 Smt. Meenakshi Rana has testified that the appellant belongs to her village. She received the information on 24.12.2011 from Bhagwat Singh that Chandra Devi had come to his house and informed that the appellant has killed his wife. She went to her village on 7 25th. She visited the house of the appellant. Patwari and PW3 Raghuvir Singh have already reached there. The dead body was taken in her presence. Panchayatnama was prepared. She signed the same.
12. PW6 Bhagwat has deposed that the appellant's mother Chandra Devi has informed him at about 04:00 AM that a quarrel has taken place between husband and wife. The appellant has strangulated his wife. Pradhan was informed. The appellant has escaped. He identified the appellant in the Court. In his cross-examination, he has deposed that the mother of appellant came to him when he was in the field.
13. PW7 Dr. Arun Kumar Pandey has conducted the postmortem examination. He prepared the postmortem report. The age of deceased was about 18 years. The smell was emanating from the dead body. The eyes were bulging. There were signs of blood from nose and mouth. The tongue was swollen. It was protruding outside. There was deep wound on the left side of the ear measuring 3X5 mm. According to him, the strangulation was carried out with the help of a blunt object. There were no signs of heart attack. The injuries could not be caused due to fall. According to the postmortem report, the deceased died due to asphyxia as a result of strangulation. The time of death was 2-5 days before the postmortem examination. Wind pipe was compressed.
14. PW8 Smt. Shanti Devi is the sister-in-law of appellant. According to her, one year before, her brother-in- law came at night. He knocked the door. Rameshwari (deceased) opened the door. Her brother-in-law entered the room. In the morning, her brother-in-law woke her up and told that since Rameshwari was unconscious, you take care of her, as he was going to call the doctor. The appellant did 8 not come back and after sometime Rameshwari died. She has categorically deposed that except the appellant and his wife, no one used to sleep in the room.
15. PW9 Smt. Chandra Devi is the mother of the appellant. According to her, her son came at 11:00 PM. He knocked the door. Rameshwari (deceased) opened the door. The appellant went inside the room. They both slept in the room. She slept in the room of her younger daughter-in- law. It was the month of Paush. In the morning, the appellant told her that Rameshwari was ill. She went to her room. The appellant told her that he was going to call the doctor. The appellant did not come back. She went to the village and told Bhagwat, who called the Village Pradhan. The appellant came after five days.
16. PW10 Dhani Ram Pokhriyal was the Investigating Officer in the matter. He was posted at Tehsil Devprayag as Naib Tehsildar. The appellant was arrested on 28.12.2012 by Patwari Sabbal Singh. He recorded the statements of Smt. Budhi Devi and Palvadas on 12.01.2012. He recorded the statements of Rakesh and Joth Singh. On 17.02.2012, he recorded the statement of Shanti Devi. On 23.02.2012, he recorded the statements of Raghuvir Singh and Smt. Meenakshi. He recorded the statements of Medical Officer Arun Pandey, Dr. Satish Kumar and Dr. Anita on 29.02.2012.
17. The marriage between the appellant and Rameshwari Devi was solemnized four years ago. PW1 Smt. Buddhi Devi and PW2 Bachan Singh have categorically deposed that the appellant and his family members were demanding dowry from their daughter. She has visited her parents house three days before Deepawali. She has categorically deposed that the appellant and his family members were demanding Rs.50,000/-. They started 9 raising the demand of dowry immediately after marriage. PW4 Shyam Das has also deposed that as and when deceased used to come to his house, she used to complain about the harassment being caused to her by the appellant for bringing insufficient dowry. She has died within seven years of her marriage. The death has occurred on 23.12.2011. However, the family of the deceased was informed only on 25.12.2011. PW2 Bachan Singh has visited the house of his daughter's in-laws. He noticed nail marks on the throat of deceased. The blood was oozing out from her nose and ear. The mother-in-law and sister-in-law of deceased were present. The appellant was missing. PW4 Shyam Das has also seen bluish colour finger marks on the throat of the deceased. Blood was oozing out from the ear and nose. The room where the dead body was lying was locked. It was opened after the arrival of the PW2 Bachan Singh and other co-villagers. PW8 Smt. Shanti Devi has categorically deposed that the appellant came to the house at night. He knocked the door. Rameshwari Devi opened the door. He entered the room. The appellant in the morning told her that Rameshwari Devi was not well. He went to call the doctor. He never came back and in the meantime, Rameshwari Devi died. She has specifically deposed that the appellant and deceased used to sleep in the room. PW9 Chandra Devi has also deposed that the appellant came at night. He knocked the door. He entered the room. In the morning, he told her that Rameshwari Devi was unwell. He never came back and in the meantime, Rameshwari Devi died. She went in the village and told Bhagwat about the incident.
18. The plea of alibi has been taken by the appellant. According to him, he was at Chauras. However, his defence is falsified by statements of PW8 Shanti Devi and PW9 Chandra Devi. These witnesses have categorically deposed 10 that the appellant has come at night on 23.12.2011. He knocked the door and the same was opened by Rameshwari Devi. Thereafter, he, in the morning, he informed both of them that Rameshwari Devi was ill. He went to call the doctor but never came back. The dead body of Rameshwari Devi was found on the bed. PW4 Shyam Das has also noticed bluish colour marks on the throat of the deceased. The postmortem examination was conducted by the Board consisting of three doctors. The postmortem report was proved by PW7 Dr. Arun Kumar Pandey. According to the postmortem report, the deceased died due to asphyxia caused by strangulation with blunt object. The deceased was subjected to cruelty by the appellant and his family members for bringing insufficient dowry. The dowry was demanded immediately after the marriage. She was strangulated.
19. The appellant has also made an extra judicial confession before PW3 Raghubir Singh that he has committed mistake by killing his wife. The investigation was carried out by PW10 Dhani Ram Pokhriyal. He recorded the statements of the witnesses.
20. In the present case, the appellant was all alone in the room with his wife. It was for him to explain under Section 106 of Indian Evidence Act that under what circumstances his wife died.
21. According to Modi's Medical Jurisprudence and Toxicology, 23rd Edition, followings are the symptoms of death caused of strangulation:-
"If the windpipe is compressed so suddenly as to occlude the passage of air altogether, the individual is rendered powerless to call for assistance, becomes insensible, and may die instantly. If the windpipe is not completely closed, the face becomes cyanosed, bleeding occurs from the mouth, nostrils and ears, the hands are clenched and convulsions precede delayed death. As in hanging, insensibility is very rapid, and death is quite painless."11
22. The death is usually due to asphyxia, but it may be due to other causes, namely, cerebral ischemia or venous congestion, asphyxia and venous congestion combined, or shock due to reflex cardiac arrest.
23. In the case, where the death is caused due to asphyxia, eyes are prominent and open. The pupils are dilated. The tongue is often swollen, bruised, protruding and dark in colour.
24. According to postmortem report, the membranes were congested, brain was congested, spinal cord was congested, larynx and trachea were crushed. Both the lungs were congested, pericardium was congested. The marks of nails were found on the neck of the deceased by PW2 Bachan Singh and PW4 Shyam Das. There was bleeding from the nose, mouth and ears.
25. According to Modi's Medical Jurisprudence and Toxicology, 23rd Edition, the larynx and trachea are congested in the case of strangulation. The lungs are usually markedly congested, showing haemorrhagic patches and petechiae and exuding dark fluid blood on section. Brain is also congested and abdominal organs are darkly congested.
26. In 2016 (4) SCC Page 604, in the case of 'Gajanan Dashrath Kharate v. State of Maharashtra', their Lordships of Hon. Supreme Court have held that the initial burden to establish the case would undoubtedly be upon the prosecution. In view of Section 106 of the Evidence Act, there will be a corresponding burden on the inmates of the house to give cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on the accused to offer explanation. In paragraph no.13, their Lordships have held as under: -
12"13. As seen from the evidence, appellant Gajanan and his father Dashrath and mother Mankarnabai were living together. On 7-4-2002, mother of the appellant-accused had gone to another Village Dahigaon. The prosecution has proved presence of the appellant at his home on the night of 7-4- 2002. Therefore, the appellant is duty-bound to explain as to how the death of his father was caused. When an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution. In view of Section 106 of the Evidence Act, there will be a corresponding burden on the inmates of the house to give cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on the accused to offer. On the date of the occurrence, when the accused and his father Dashrath were in the house and when the father of the accused was found dead, it was for the accused to offer an explanation as to how his father sustained injuries. When the accused could not offer any explanation as to the homicidal death of his father, it is a strong circumstance against the accused that he is responsible for the commission of the crime."
27. In (2015) 4 SCC Page 393, in the case of 'Ashok v. State of Maharashtra' their Lordships of Hon. Supreme Court have held that initial burden of proof is on prosecution to adduce sufficient evidence pointing towards guilt of accused. However, in case it is established that accused was last seen together with deceased, prosecution is exempted to prove exact happening of incident as accused himself would have special knowledge of incident and thus, would have burden of proof as per Section 106 of the Evidence Act. Their Lordships have held as under: -
"12. From the study of abovestated judgments and many others delivered by this Court over a period of years, the rule can be summarised as that the initial burden of proof is on the prosecution to bring sufficient evidence pointing towards guilt of the accused. However, in case of last seen together, the prosecution is exempted to prove exact happening of the incident as the accused himself would have special knowledge of the incident and thus, would have burden of proof as per Section 106 of the Evidence Act. Therefore, last seen together itself is not a conclusive proof but along with other circumstances surrounding the incident, like relations between the accused and the deceased, enmity between them, previous history of hostility, recovery of weapon from the accused, etc. non-explanation of death of the deceased, may lead to a presumption of guilt."
28. Their Lordships of Hon'ble Supreme Court in (2010) 13 SCC 689, in the case of Satya Narayan Tiwari @ Jolly 13 and another vs. State of Uttar Pradesh, have explained the term "soon before" the marriage which reads as under :-
"28. There can be no quarrel with the proposition that the proximity test has to be applied keeping in view the facts and circumstances of each case. Regarding the aforesaid decision, the facts were somewhat different in that the deceased was not shown to have been subjected to cruelty by her husband for at least 15 months prior to her death. On the fact of that case, it was held that Section 304-B IPC was not attracted.
29. On the other hand, the present case fully answers the test of "soon before". There is the testimony of demand of Maruti car being pressed by the two accused persons after about six months of the marriage of the deceased (which took place about three years before the incident) and of her being pestered, nagged, tortured and maltreated on non- fulfilment of the said demand which was conveyed by her to her parents from time to time on her visits to her parental home and on telephone. Things had reached to such a pass that on getting a message from her about three months before the incident, Surya Kant Dixit PW 1 accompanied by Jaideo Awasthi PW 2 had to go to her sasural in Farrukhabad in an attempt to dissuade the two accused from pressing such demand, but they (the two accused) humiliated them and turned them out of the house with the command not to enter their house again without meeting the demand of a Maruti car. He did not take any action on the consolation offered by the father-in-law of his daughter and also on the advice of his daughter. It was natural that the victim also did not want her father to take any extreme step against the two accused. She might have thought that things would improve with the passage of time but it seems that that did not happen.
30. Surya Kant Dixit PW 1 was in a helpless state after suffering humiliation at the hands of the accused persons about three months before the actual incident. He could simply wait and watch in the hope of things to improve, but the 24 situation did not improve at all. It, however, cannot be taken to mean that the demand made by the two accused persons had subsided or was given up by them. It can justifiably be inferred from what happened subsequently that they continued to torture the unfortunate lady because of non-fulfilment of the demand of Maruti car. In our opinion, the test of "soon before" is satisfied in the facts, evidence and circumstances of the present case.
55. We are of the view that the presumption of Section 113-B of the Evidence Act is attracted in this case and the discussion that we have made hereinabove makes it abundantly clear that the defence could not displace the said presumption. The culpability of the two accused in committing this crime is established to the hilt by the facts and circumstances proved by the prosecution. They undoubtedly are the authors of this crime.
57. To sum up, the prosecution has been able to prove the following:
(1) The death of the deceased was caused by strangulation and burning within seven years of her marriage (2) The deceased had been subjected to cruelty by her husband and mother-in-law (the two appellant-
accused) over the demand of Maruti car in dowry raised and persistently pressed by them after about six months of the marriage and continued till her death.
14(3) The cruelty and harassment was in connection with the demand of dowry i.e. Maruti car. (4) The cruelty and harassment is established to have been meted out soon before her death.
(5) The two accused were the authors of this crime who caused her death by strangulation and burning on the given date, time and place.
58. In our opinion, the trial Judge recorded an acquittal adopting a superfluous approach without in depth analysis of the evidence and circumstances established on record. On thoroughly cross-checking the evidence on record and circumstances established by the prosecution with the findings recorded by the trial court, we find that its conclusions are quite inapt, unjustified, unreasonable and perverse. Proceeding on a wrong premise and irrelevant considerations, the trial court has acquitted the accused. The accused are established to have committed the offences under Sections 498-A and 304-B IPC and under Section 4 of the Dowry Prohibition Act and the findings of the High Court are correct."
29. Their Lordships of Hon'ble Supreme Court in (2011) 4 SCC 427, in the case of "Bachni Devi and another Vs. State of Haryana", have reiterated the principle and explained the term "demand for dowry' under Section 304- B IPC and its presumption. Their Lordships have held as under: -
"12. For making out an offence of "dowry death"
under Section 304-B, the following ingredients have to be proved by the prosecution:
(a) death of a woman must have been caused by any burns or bodily injury or her death must have occurred otherwise than under normal circumstances;
(b) such death must have occurred within seven years of her marriage;
(c) soon before her death, she must have been subjected to cruelty or harassment by her husband or any relative of her husband; and
(d) such cruelty or harassment must be in connection with the demand for dowry.
19. In the backdrop of the above legal position, if we look at the facts of the case, it is clearly established that Kanta died otherwise than under normal circumstances. There is no dispute of fact that death of Kanta occurred within seven years of her marriage. That Kanta was subjected to harassment and ill-treatment by A-1 and A-2 after PW 8 refused to accede to 26 their demand for purchase of motorcycle is established by the evidence of PW 8 and PW 9. Then there is evidence of PW 10 that PW 8 had called him and DW 1 to his house where A-1 had made demand of motorcycle. PW 10 stated that he sought to reason to A-1 about inability of PW 8 to give motorcycle at which A-1 got angry and warned that Kanta would not be allowed to stay in her matrimonial home. It is true that the appellants produced DW 1 in defence and he did state in his examination-in chief that he did not meet A-1 at the house of PW 8 but in the cross-examination when he was confronted with his statement under Section 161 CrPC (portion A to A) where it was recorded that he and PW 10 had gone to the house of PW 8 and both of them (PW 10 and 15 DW 1) counselled A-1 to desist from demanding motorcycle but she stuck to her demand, DW 1 had no explanation to offer. The evidence of DW 1 is, therefore, liable to be discarded.
20. In the light of the evidence let in by the prosecution, the trial court cannot be said to have erred in holding that it was established that unlawful demand of motorcycle was made by A-1 and A-2 from PW 8 and Kanta was harassed on account of his failure to provide the motorcycle and that led Kanta to commit suicide by hanging. Pertinently, the demand of motorcycle by A-1 from PW 8 was for A-2 and when PW 8 showed his inability to meet that demand, A-2 started harassing and ill-treating Kanta. In this view of the matter, it cannot be said that there was no demand by A-2.
21. The High Court has also examined the matter thoroughly and reached the finding that A-1 and A-2 had raised a demand for purchase of motorcycle from PW 8; this demand was made within two months of the marriage and was a demand towards "dowry" and when this demand was not met, Kanta was maltreated and harassed continuously which led her to take extreme step of finishing her life. We agree with the above view of the High Court. There is no merit in the contention of the counsel for the appellants that the demand of motorcycle does not qualify as a "demand for dowry". All the essential ingredients to bring home the guilt under Section 304-B IPC are established against the appellants by the prosecution evidence. As a matter of law, the presumption under Section 113-B of the Evidence Act, 1872 is fully attracted in the facts and circumstances of the present case. The appellants 27 have failed to rebut the presumption under Section 113-B.
22. For the foregoing reasons, we find no merit in the appeal and it is dismissed accordingly. Two months' time is given to A-1 to surrender for undergoing the sentence awarded to her."
30. Their Lordships of Hon'ble Supreme Court in AIR (2013) SC 1039, in the case of "Kashmir Kaur and Another Vs. State of Punjab" have explained the ingredients of offence under Section 304-B of I.P.C. as under:
"16. From the above decisions the following principles can be culled out:
(a). To attract the provisions of Section 304-B IPC the main ingredient of the offence to be established is that soon before the death of the deceased she was subjected to cruelty and harassment in connection with the demand of dowry.
(b) The death of the deceased woman was caused by any burn or bodily injury or some other circumstance which was not normal.
(c) Such death occurs within seven years from the date of her marriage.
(d). That the victim was subjected to cruelty or harassment by her husband or any relative of her husband.
(e). Such cruelty or harassment should be for or in connection with demand of dowry.
(f). It should be established that such cruelty and harassment was made soon before her death.16
(g) The expression "soon before" is a relative term and it would depend upon circumstances of each case and no straitjacket formula can be laid down as to what would constitute a period of soon before the occurrence.
(h). It would be hazardous to indicate any fixed period and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act.
(i). Therefore, the expression "soon before" would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. There must be existence of a proximate or live link between the effect of cruelty based on dowry demand and the death concerned. In other words, it should not be remote in point of time and thereby make it a stale one.
(j). However, the expression "soon before" should not be given a narrow meaning which would otherwise defeat the very purpose of the provisions of the Act and should not lead to absurd results.
(k). Section 304-B is an exception to the cardinal principles of criminal jurisprudence that a suspect in the Indian law is entitled to the protection of Article 20 of the Constitution, as well as, a presumption of innocence in his favour. The concept of deeming fiction is hardly applicable to criminal jurisprudence but in contradistinction to this aspect of criminal law, the legislature applied the concept of deeming fiction to the provisions of Section 304-B.
(l). Such deeming fiction resulting in a presumption is, however, a rebuttable presumption and the husband and his relatives, can, by leading their defence prove that the ingredients of Section 304-B were not satisfied.
(m). The specific significance to be attached is to the time of the alleged cruelty and harassment to which the victim was subjected, the time of her death and whether the alleged demand of dowry was in connection with the marriage. Once the said ingredients are satisfied it will be called "dowry death" and by deemed fiction of law the husband or the relatives will be deemed to have committed that offence.
17. Keeping the above principles in mind, when we examine the case on hand, we find the following uncontroverted facts:
(i) The death of the deceased occurred 11 months after her marriage thereby the main condition prescribed under Section 304-B, namely, within seven years of the marriage was fulfilled.
(ii) The death of the deceased was not normal as evidenced by the version of PW 1 post-mortem doctor, the post-mortem certificate and also Ext. PG, the report of the chemical examiner.
(iii) The evidence of PWs 2 and 3 read along with Exts. PH to PK disclose that there was a demand for payment of cash of Rs 30,000 apart from a stereo set and a scooter.
(iv) According to PW 2, father of the deceased, three to four days prior to the unfortunate death of the deceased his daughter came to his house and expressed her dire need for payment of Rs 30,000 as demanded by her in-laws and that she was being harassed on that score.
(v) The evidence of PW 3 was to the effect that on the date of the death of the deceased, namely, 3- 17
11-1987 he happened to witness the torture meted out to the deceased at the hands of her in- laws.
(vi) Though on behalf of the appellant and other accused certain witnesses were examined by way of defence, both the trial court as well as the appellate court have noted that nothing concrete was brought out to show that the evidence led on the side by the prosecution through PWs 1 to 3 were in any way contradicted."
31. Their Lordships of Hon'ble Supreme Court in 2014 CRI. L.J. 3092, in the case of "Dinesh Vs. State of Haryana" have explained the true scope of Section 304-B and 113-B of I.P.C as under:-
"10. Before we discuss the facts in evidence brought on record, we wish to discuss the relevant provisions which are involved in this case. As noticed, the appellant is convicted under Section 304-B IPC. The said section reads as under:
"304-B. Dowry death.--(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called 'dowry death', and such husband or relative shall be deemed to have caused her death.
Explanation.--For the purpose of this sub-section, 'dowry' shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961). (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life."
11. Another relevant provision which needs to be discussed is Section 113-B of the Evidence Act, 1872. The said provision is quoted hereinbelow:
"113-B. Presumption as to dowry death.-- When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the court shall presume that such person had caused the dowry death. Explanation.--For the purposes of this section, 'dowry death' shall have the same meaning as in Section 304-B of the Indian Penal Code (45 of 1860."
12. These two provisions in the Penal Code and the Evidence Act have been inserted by the Dowry Prohibition (Amendment) Act, 1986 with a view to combating the increasing menace of dowry death. The legislative intent of enacting these provisions is to curb the menace of dowry death. This Court while considering the legislative intent in State of Punjab v. Iqbal Singh2 observed as under: (SCC pp. 9-10, para 8) "8. The legislative intent is clear to curb the menace of dowry deaths, etc., with a firm hand. We must keep in mind this legislative intent. It must be remembered that since crimes are generally committed in the privacy of 18 residential homes and in secrecy, independent and direct evidence is not easy to get. That is why the legislature has by introducing Sections 113-A and 113- B in the Evidence Act tried to strengthen the prosecution hands by permitting a presumption to be raised if certain foundational facts are established and the unfortunate event has taken place within seven years of marriage. This period of seven years is considered to be the turbulent one after which the legislature assumes that the couple would have settled down in life. If a married woman is subjected to cruelty or harassment by her husband or his family members Section 498-A IPC would be attracted. If such cruelty or harassment was inflicted by the husband or his relative for, or in connection with, any demand for dowry immediately preceding death by burns and bodily injury or in abnormal circumstances within seven years of marriage, such husband or relative is deemed to have caused her death and is liable to be punished under Section 304-B IPC. When the question at issue is whether a person is guilty of dowry death of a woman and the evidence discloses that immediately before her death she was subjected by such person to cruelty and/or harassment for, or in connection with, any demand for dowry, Section 113-B of the Evidence Act provides that the court shall presume that such person had caused the dowry death. Of course if there is proof of the person having intentionally caused her death that would attract Section 302 IPC. Then we have a situation where the husband or his relative by his wilful conduct creates a situation which he knows will drive the woman to commit suicide and she actually does so, the case would squarely fall within the ambit of Section 306 IPC. In such a case the conduct of the person would tantamount to inciting or provoking or virtually pushing the woman into a desperate situation of no return which would compel her to put an end to her miseries by committing suicide."
13. If we read the aforementioned two provisions i.e. Section 304-B IPC and Section 113-B of the Evidence Act, it is evident that the prosecution must have brought on record the materials to show that soon before her death the victim was subjected to cruelty or harassment.
19. Considering the evidence referred to hereinbefore and the conduct of the accused persons, there cannot be any difficulty in holding that the deceased died because of cruelty, harassment and demand for dowry. We are also of the considered opinion that there is a proximate connection between cruelty, harassment and death of the deceased as discussed above. There are sufficient materials showing that the accused persons started demanding television and gold chain, etc. after the marriage and that their demand continued and the parents were not allowed to meet their daughter unless their demands were fulfilled."
32. Their Lordships of Hon'ble Supreme Court in AIR 2015 SC 980, in the case of "Sher Singh alias Partapa Vs. State of Haryana" have held that Concomitants of Section 304B once established or shown or proved by prosecution, even by preponderance of possibility. Initial presumption of innocence is replaced by assumption of 19 guilt of accused. Transferring heavy burden on accused to produce evidence is to dislodge his guilt, beyond reasonable doubt. Their Lordships have held as under:-
"14. As is already noted above, Section 113B of the Evidence Act and Section 304B of the Indian Penal Code were introduced into their respective statutes simultaneously and, therefore, it must ordinarily be assumed that Parliament intentionally used the word 'deemed' in Section 304B to distinguish this provision from the others. In actuality, however, it is well nigh impossible to give a sensible and legally acceptable meaning to these provisions, unless the word 'shown' is used as synonymous to 'prove' and the word 'presume' as freely interchangeable with the word 'deemed'. In the realm of civil and fiscal law, it is not difficult to import the ordinary meaning of the word 'deem' to denote a set of circumstances which call to be construed contrary to what they actually are. In criminal legislation, however, it is unpalatable to adopt this approach by rote. We have the high authority of the Constitution Bench of this Court both in State of Travancore-Cochin v. Shanmugha Vilas Cashewnut Factory AIR 1953 SC 333 and State of Tamil Nadu v. Arooran Sugars Limited: (1997) 1 SCC 326, requiring the Court to ascertain the purpose behind the statutory fiction brought about by the use of the word 'deemed' so as to give full effect to the legislation and carry it to its logical conclusion. We may add that it is generally posited that there are rebuttable as well as irrebuttable presumptions, the latter oftentimes assuming an artificiality as actuality by means of a deeming provision. It is abhorrent to criminal jurisprudence to adjudicate a person guilty of an offence even though he had neither intention to commit it nor active participation in its commission. It is after deep cogitation that we consider it imperative to construe the word 'shown' in Section 304B of the Indian Penal Code as to, in fact, connote 'prove'. In other words, it is for the prosecution to prove that a 'dowry death' has occurred, namely, (i) that the death of a woman has been caused in abnormal circumstances by her having been burned or having been bodily injured, (ii) within seven years of a marriage, (iii) and that she was subjected to cruelty or harassment by her husband or any relative of her husband, (iv) in connection with any demand for dowry and (v) that the cruelty or harassment meted out to her continued to have a causal connection or a live link with the demand of dowry. We are aware that the word 'soon' finds place in Section 304B; but we would prefer to interpret its use not in terms of days or months or years, but as necessarily indicating that the demand for dowry should not be stale or an aberration of the past, but should be the continuing cause for the death under Section 304B or the suicide under Section 306 of the Indian Penal Code. Once the presence of these concomitants are established or shown or proved by the prosecution, even by preponderance of possibility, the initial presumption of innocence is replaced by an assumption of guilt of the accused, thereupon transferring the heavy burden of proof upon him and requiring him to produce evidence dislodging his guilt, beyond reasonable doubt. It seems to us that what Parliament intended by using the word 'deemed' was that only preponderance of evidence would be insufficient to discharge the husband or his family members of their guilt. This interpretation provides the accused a chance of proving their innocence. This is also the postulation of Section 101 of the Evidence Act. The purpose of Section 113B of the Evidence Act and Section 304B of the Indian Penal Code, in our opinion, is to counter what is commonly encountered - the lack or the 20 absence of evidence in the case of suicide or death of a woman within seven years of marriage. If the word "shown" has to be given its ordinary meaning then it would only require the prosecution to merely present its evidence in Court, not necessarily through oral deposition, and thereupon make the accused lead detailed evidence to be followed by that of the prosecution. This procedure is unknown to Common Law systems, and beyond the contemplation of the Code of Criminal Procedure.
17. Keeping in perspective that Parliament has employed the amorphous pronoun/noun "it" (which we think should be construed as an allusion to the prosecution), followed by the word "shown" in Section 304B, the proper manner of interpreting the Section is that "shown" has to be read up to mean "prove" and the word "deemed" has to be read down to mean "presumed". Neither life nor liberty can be emasculated without providing the individual an opportunity to disclose extenuating or exonerating circumstances. It was for this reason that this Court struck down the mandatory death sentence in Section 303 Indian Penal Code in its stellar decision in Mithu v. State of PunjabAIR 1983 SC 473. Therefore, the burden of proof weighs on the husband to prove his innocence by dislodging his deemed culpability, and that this has to be preceded only by the prosecution proving the presence of three factors, viz. (i) the death of a woman in abnormal circumstances (ii) within seven years of her marriage, and (iii) and that the death had a live link with cruelty connected with any demand of dowry. The other facet is that the husband has indeed a heavy burden cast on his shoulders in that his deemed culpability would have to be displaced and overturned beyond reasonable doubt. This emerges clearly as the manner in which Parliament sought to combat the scourge and evil of rampant bride burning or dowry deaths, to which manner we unreservedly subscribe. In order to avoid prolixity we shall record that our understanding of the law finds support in an extremely extensive and erudite judgment of this Court in P.N. Krishna Lal v. Government of Kerala 1995 Supp (2) SCC 187, in which decisions spanning the globe have been mentioned and discussed. It is also important to highlight that Section 304B does not require the accused to give evidence against himself but casts the onerous burden to dislodge his deemed guilt beyond reasonable doubt. In our opinion, it would not be appropriate to lessen the husband's onus to that of preponderance of probability as that would annihilate the deemed guilt expressed in Section 304B, and such a curial interpretation would defeat and neutralise the intentions and purposes of Parliament. A scenario which readily comes to mind is where dowry demands have indubitably been made by the accused husband, where in an agitated state of mind, the wife had decided to leave her matrimonial home, and where while travelling by bus to her parents' home she sustained fatal burn injuries in an accident/collision which that bus encountered. Surely, if the husband proved that he played no role whatsoever in the accident, he could not be deemed to have caused his wife's death. It needs to be immediately clarified that if the wife had taken her life by jumping in front of a bus or before a train, the husband would have no defence. Examples can be legion, and hence we shall abjure from going any further. All that needs to be said is that if the husband proves facts which portray, beyond reasonable doubt, that he could not have caused the death of his wife by burns or bodily injury or not involved in any manner in her death in abnormal circumstances, he would not be culpable under Section 304B.
18. Now, to the case in hand. It has been contended before us, as was also unsuccessfully argued before both the Courts 21 below that there was a 'delay' in lodging the FIR. There is no perversity in the concurrent views that its lodgement after ten hours on the day next after the tragedy, i.e. 8/02/98 did not constitute inordinate delay such as would justifiably categorising the FIR as an after-thought or as contrived. The Complainant along with family and friends had to travel to another village; he would have had to first come to terms with the tragedy, make enquiries and consider the circumstances, before recording the FIR. Equally preposterous is the argument that once the High Court had seen fit to acquit the other accused, namely, Davinder Singh (brother-in-law) and Jarnail Singh (father-in-law) the husband/Appellant should have been similarly acquitted. It cannot be ignored that the accused was not living with his parents and brother, and it is justified nay necessary to require stronger proof to implicate the family members of the husband. It has been essayed by the learned Counsel for the Appellant to impress upon us that the cruelty postulated in this provision has not been shown to have occurred "soon before her death". This argument, assumes on a demurrer, that statutory cruelty had, in fact, been committed. The deceased and the Appellant were married in February, 1997 and the former committed suicide within one year; to even conjecture that it was not soon before death, has only to be stated to be stoutly shot down."
33. Their Lordships of Hon'ble Supreme Court in (2011) 11 SCC 733, in the case of "Sanjay Kumar Jain Vs. State of Delhi", have held that in order to bring home the guilt under Section 304-B IPC, the prosecution must prove that victim was subjected to cruelty or harassment by her husband or his relatives. Such cruelty or harassment was for, on in connection with any demand for dowry. Such cruelty or harassment was done within seven years of the marriage. Their Lordships have held that as under :-
"48. In State of Punjab v. Iqbal Singh, this Court observed that crimes are generally committed in the privacy of residential homes and in secrecy and it is difficult to get independent direct evidence in such cases. That is why the legislature has, by introducing Sections 113-A and 113-B in the Evidence Act, tried to strengthen the prosecution hands by permitting a presumption to be raised if certain foundational facts are established that the unfortunate event has taken place within seven years of the marriage.
49. On proper analysis of Section 304-B of the Penal Code and Section 113-B of the Evidence Act, it shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. The prosecution is under an obligation to rule out any possibility of natural or accidental death. Where the ingredients of Section 304-B of the Penal Code are satisfied, the section would apply. If death is unnatural, either homicidal or suicidal, it would be death which can be said to have taken place in unnatural circumstances and the provisions of Section 304-B would be applicable.
50. The death, otherwise than under normal circumstances, under Section 304-B of the Penal Code would mean the death not in usual course either natural or accidental death. Section 304- B creates a substantive offence. The necessity for 22 insertion of the two provisions has been amply enumerated by the Law Commission of India in its 21st Report, dated 10-8- 1988 on "Dowry Deaths and Law Reform". This has been primarily done because of the pre-existing law in securing evidence to prove dowry-related deaths.
51. In order to bring home the guilt under Section 304-B of the Penal Code the following ingredients are necessary: (1) The victim was subjected to cruelty or harassment by her husband or his relatives. (2) Such cruelty or harassment was for, or in connection with any demand for dowry. (3) Such cruelty or harassment was done within seven years of the marriage. In the present case, deceased died within seven years of marriage. She was subjected to cruelty and harassment by her husband and relatives for bringing insufficient dowry."
34. Their Lordships of Hon'ble Supreme Court in (2015) 4 SCC 749 in the case of "Vijay Pal Vs. State (Government of NCT of Delhi)", have explained the medical evidence value on dying declaration and plea of alibi for homicidal burning or accidental death by Kerosine stove. Their Lordships have held that as under:-
"10. To appreciate the rivalised submissions raised at the Bar, we have perused the judgments of the trial court and the High Court with concerned anxiety and cautiously scrutinised the evidence on record. As we find, there are basically seven witnesses whose evidence are important, they are Satish, brother of the deceased, PW 1; Shivcharan, father of the deceased, PW 8; Dr G.K. Chaubey, who conducted the post-mortem, PW 5; Seema, daughter of the deceased, PW 3; Shanker Lal, PW 2 and Surender, PW 4 who informed the police at the first instance and Vijender Singh, PW 21, the Sub-Inspector who recorded the statement. At this juncture, it is necessary to mention that apart from PW 3, PWs 2, 4 and 8, were also declared hostile by the prosecution and were cross- examined by the State. In this backdrop, it is to be seen whether the material brought on record is sufficient enough to sustain the conviction on a scrutiny of Exts. PW 1-A, PW 1-B, PW 1-D, PW 1-E, PW 1-F and Ext. P-2 that were seized.
11. From the oral evidence and the seized items from the place of occurrence, it is quite vivid that the deceased had suffered burn injuries which led to her death. It was PW 3, the daughter of the deceased, who witnessed the quarrel and rushed to the home of her grandparents. The learned trial Judge has put the relevant question to her to find out whether she was in a position to understand the questions and depose in the Court. In her evidence, she had stated that on the fateful day at about 11.00 p.m. her mother was preparing food for the children and for the said purpose she was pouring kerosene oil in the stove as it was empty and thereafter when she tried to light the stove, the kerosene oil was not coming from the nozzle of the stove, then the deceased inserted a pin in the nozzle and the oil sprinkled on her and in the process she caught fire. On being declared hostile, she was cross- examined. It is relevant to note here that she has first deposed that she was not aware who had removed her mother to the hospital and thereafter changed her stand stating that her uncle had removed her mother. As her testimony would show she has not mentioned the whereabouts of her father at the time of the incident. Her ignorance about how the mother was shifted to the hospital shows that as the High Court has 23 correctly analysed, she has not spoken anything about her father in order to protect him.
12. Keeping in abeyance whether the plea of alibi taken by the accused is proven or not to be dealt with at a later stage, we think it apposite to scan the evidence of other witnesses. PW 1, the brother of the deceased, has unequivocally deposed that after getting the information from Seema, PW 3, his father and he rushed to the house of the deceased. As is evincible from the testimony, he reached the house of the sister first and found she was burning and she told him that his brother-in- law had poured kerosene and put her ablaze. She has also stated that the children should not be given to the accused. He has, in detail, spoken about going to the hospital and how the site plan was prepared and the items were seized in presence of the witnesses. In the cross-examination, no suggestion has been given about the absence of husband in the house, contrivance of the dying declaration by him or anything which would create a dent in his testimony. What has been sought to be brought in the cross-examination is that no one was present in the room of the deceased and certain other questions which have nothing to do with the incident. It has been suggested to him that his sister and the accused had kept Rs 90,000 with his father, PW 8, for purchasing a house and as they refused to return the money, they had, getting an opportunity, falsely implicated the accused. It has also come out in the cross-examination that the accused was a habitual drinker and gambler and his family was supported by the in-laws.
13. At this stage it would be appropriate to state that the trial court and the High Court have placed reliance on the post- mortem report. Dr G.K. Choubey, PW 5, who had conducted the post-mortem on the dead body of the deceased had found the following injuries:
"Superficial to deep burn injury over all the body surface area including scalp, skin peeled off at various places, margins red underneath tissues bright red and there was blackening of skin over various areas. Skin was peeled off at soles, but not at palms. Venisection at left leg above medial malleolus was present. It was 100% ante-mortem deep burns. Internal examination revealed that larynx contained soot particles and rest of the organs were found to be congested."
14. In the cross-examination Dr Choubey has categorically denied the suggestion that the injuries received by the deceased could have been sustained because of kerosene oil from the stove fell on her body due to the pinning of the stove and also by fall of a tin of kerosene oil on the floor. He has deposed without any equivocation that the burn injuries sustained by the deceased were not possible due to accidental burns. The High Court has taken note of the FSL report, Ext. PW 20/B, from which it is evident that the analysis by gas liquid chromatography showed, kerosene oil residues were found on the scalp hair of the deceased. It is apt to note that the presence of kerosene on the scalp hair of the deceased and presence of dust particles in the larynx of the deceased clearly evince that kerosene oil was poured on the skull of the deceased which could not have happened by accident. The testimony of the daughter, Seema, PW 3, a young girl of ten years that the kerosene oil accidentally spilled on the body of her mother is thus absolutely unbelievable. We are disposed to think so when we weigh the medical testimony vis-à-vis the ocular testimony.
15. There is no dispute that the value of medical evidence is only corroborative. It proves that the injuries could have been 24 caused in the manner as alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eyewitnesses. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by the eyewitnesses, the testimony of the eyewitnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence. It is also true that the post-mortem report by itself is not a substantive piece of evidence, but the evidence of the doctor conducting the post-mortem can by no means be ascribed to be insignificant. The significance of the evidence of the doctor lies vis-à-vis the injuries appearing on the body of the deceased person and likely use of the weapon and it would then be the prosecutor's duty and obligation to have the corroborative evidence available on record from the other prosecution witnesses. It is also an accepted principle that sufficient weightage should be given to the evidence of the doctor who has conducted the post-mortem, as compared to the statements found in the textbooks, but giving weightage does not ipso facto mean that each and every statement made by a medical witness should be accepted on its face value even when it is self-contradictory. It is also a settled principle that the opinion given by a medical witness need not be the last word on the subject. Such an opinion shall be tested by the court. If the opinion is bereft of logic or objectivity, the court is not obliged to go by that opinion. That apart, it would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eyewitnesses' account which are to be tested independently and not treated as the "variable" keeping the medical evidence as the "constant". Where the eyewitnesses' account is found credible and trustworthy, a medical opinion pointing to the alternative possibilities cannot be accepted as conclusive. (See Solanki Chimanbhai Ukabhai v. State of Gujarat2 (1983) 2 SCC 174 :
1983 SCC (Cri) 379, State of Haryana v. Ram Singh3 (2002) 2 SCC 426 : 2002 SCC (Cri) 350, Mohd. Zahid v. State of T.N.4, State of Haryana v. Bhagirath5 and Abdul Sayeed v. State of M.P.6)
16. Having stated about the medical evidence that has been brought on record and how such an evidence is to be valued, we think it apt to dwell upon the oral dying declaration which has been placed reliance upon by the trial court as well as the High Court. As per the evidence of the brother, Satish, PW 1, he after reaching the place of occurrence found his sister ablaze and she had stated that her husband has poured kerosene on her and put her ablaze. There is material to show that the father, Shivcharan, PW 8, arrived after his son. The prosecution has explained about the delayed arrival of the father.
17. The submission of the learned counsel for the appellant is that the oral dying declaration lacks intrinsic truth and it does not deserve acceptance. At this juncture we think it appropriate to refer to certain authorities as to how an oral dying declaration is to be scrutinised.
18. In Laxman v. State of Maharashtra7, the Constitution Bench has held thus: (SCC pp. 713-14, para 3) "3. The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this 25 species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on the deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the courts insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite."
19. The aforesaid judgment makes it absolutely clear that the dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice, provided the communication is positive and definite. There cannot be any cavil over the proposition that a dying declaration cannot be mechanically relied upon. In fact, it is the duty of the court to examine a dying declaration with studied scrutiny to find out whether the same is voluntary, truthful and made in a conscious state of mind and further it is without any influence.
20. At this juncture, we may quote a passage from Babulal v. State of M.P. wherein the value of dying declaration in evidence has been stated: (SCC p. 494, para 7) "7. ... A person who is facing imminent death, with even a shadow of continuing in this world practically non- existent, every motive of falsehood is obliterated. The mind gets altered by most powerful ethical reasons to speak only the truth. Great solemnity and sanctity is attached to the words of a dying person because a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person. The maxim is 'a man will not meet his Maker with a lie in his mouth' (nemo moriturus praesumitur mentire). Mathew Arnold said, 'truth sits on the lips of a dying man'. The general principle on which the species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone, when every motive to falsehood is silenced and mind induced by the most powerful consideration to speak the truth; situation so solemn that law considers the same as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice."
21. Dealing with the oral dying declaration, a two-Judge Bench in Prakash v. State of M.P.9 has stated thus: (SCC p. 234, para 11) 26 "11. ... In the ordinary course, the members of the family including the father were expected to ask the victim the names of the assailants at the first opportunity and if the victim was in a position to communicate, it is reasonably expected that he would give the names of the assailants if he had recognised the assailants. In the instant case there is no occasion to hold that the deceased was not in a position to identify the assailants because it is nobody's case that the deceased did not know the accused persons. It is therefore quite likely that on being asked the deceased would name the assailants. In the facts and circumstances of the case the High Court has accepted the dying declaration and we do not think that such a finding is perverse and requires to be interfered with."
22. Thus, the law is quite clear that if the dying declaration is absolutely credible and nothing is brought on record that the deceased was in such a condition, he or she could not have made a dying declaration to a witness, there is no justification to discard the same. In the instant case, PW 1 had immediately rushed to the house of the deceased and she had told him that her husband had poured kerosene on her. The plea taken by the appellant that he has been falsely implicated because his money was deposited with the in-laws and they were not inclined to return, does not also really breathe the truth, for there is even no suggestion to that effect.
23. It is contended by the learned counsel for the appellant that when the deceased sustained 100% burn injuries, she could not have made any statement to her brother. In this regard, we may profitably refer to the decision in Mafabhai Nagarbhai Raval v. State of Gujarat10 wherein it has been held that a person suffering 99% burn injuries could be deemed capable enough for the purpose of making a dying declaration. The Court in the said case opined that unless there existed some inherent and apparent defect, the trial court should not have substituted its opinion for that of the doctor. In the light of the facts of the case, the dying declaration was found to be worthy of reliance.
24. In State of M.P. v. Dal Singh11, a two-Judge Bench placed reliance on the dying declaration of the deceased who had suffered 100% burn injuries on the ground that the dying declaration was found to be credible.
25. At this juncture, we think it apt to deal with the plea of alibi that has been put forth by the appellant. As is demonstrable, the trial court has discarded the plea of alibi. When a plea of alibi is taken by an accused, burden is upon him to establish the same by positive evidence after onus as regards presence on the spot is established by the prosecution. In this context, we may profitably reproduce a few paragraphs from Binay Kumar Singh v. State of Bihar12:
(SCC p. 293, paras 22-23) "22. We must bear in mind that an alibi is not an exception (special or general) envisaged in the Penal Code, 1860 or any other law. It is only a rule of evidence recognised in Section 11 of the Evidence Act that facts which are inconsistent with the fact in issue are relevant. Illustration (a) given under the provision is worth reproducing in this context:
'(a) The question is whether A committed a crime at Calcutta on a certain day. The fact that, on that date, A was at Lahore is relevant.'
23. The Latin word alibi means 'elsewhere' and that word is used for convenience when an accused takes recourse to a defence line that when the occurrence took place he was so far away from the place of occurrence that it is extremely 27 improbable that he would have participated in the crime. It is a basic law that in a criminal case, in which the accused is alleged to have inflicted physical injury to another person, the burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime. The burden would not be lessened by the mere fact that the accused has adopted the defence of alibi. The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily.
But once the prosecution succeeds in discharging the burden it is incumbent on the accused, who adopts the plea of alibi, to prove it with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. When the presence of the accused at the scene of occurrence has been established satisfactorily by the prosecution through reliable evidence, normally the court would be slow to believe any counter-evidence to the effect that he was elsewhere when the occurrence happened. But if the evidence adduced by the accused is of such a quality and of such a standard that the court may entertain some reasonable doubt regarding his presence at the scene when the occurrence took place, the accused would, no doubt, be entitled to the benefit of that reasonable doubt. For that purpose, it would be a sound proposition to be laid down that, in such circumstances, the burden on the accused is rather heavy. It follows, therefore, that strict proof is required for establishing the plea of alibi."
(emphasis supplied) The said principle has been reiterated in Gurpreet Singh v. State of Haryana13, Sk. Sattar v. State of Maharashtra14 and Jitender Kumar v. State of Haryana15.
26. Applying the aforesaid test, we have to x-ray the evidence on record. The father of the deceased, PW 8, has stated in categorical terms that the appellant-accused was there at home. Nothing has been elicited in the cross-examination. The prosecution has been able to establish that the occurrence took place at 11.00 p.m. There is conclusive medical evidence that the deceased did not suffer the injuries because of accidental fire. There is no reason to disbelieve the testimony of the father of the deceased or to discard the medical evidence. On the contrary, the evidence is beyond reproach.
27. In our considered opinion, when the trial court as well as the High Court have disbelieved the plea of alibi which is a concurrent finding of fact, there is no warrant to dislodge the same. The evidence that has been adduced by the accused to prove the plea of alibi is sketchy and in fact does not stand to reason. It is not a case where the accused has proven with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. The evidence adduced by the accused is not of such a quality that the Court would entertain a reasonable doubt. The burden on the accused is rather heavy and he is required to establish the plea of alibi with certitude. In the instant case, nothing has been brought on record that it was a physical impossibility of the presence of the accused to be at the scene of the offence by reason of his presence at another place. The plea can succeed only if it is shown that the accused was so far away at the relevant time that he could not be present at the place where the crime was committed. (See Dudh Nath Pandey v. State of U.P.16) The evidence of the sister, DW 1, does not inspire any confidence. The cumulative effect of the evidence as regards the presence of the accused at the scene of occurrence cannot be disbelieved on the basis of bald utterance of the sister which is not only sketchy but also defies reason. Hence, we are obliged to concur with the findings recorded on this score by the 28 learned trial Judge that has been given the stamp of approval by the High Court."
35. Their Lordships of Hon. Supreme Court in AIR 1972 S.C. 109 in the case of 'Chandrika Prasad Singh and others v. The State of Bihar' have held that the onus to establish alibi is on the accused and if there was no cogent ground for disagreeing with High Court that this onus was not discharged, the Supreme Court in appeal on special leave will not interfere with the conclusion. In paragraph no.3, their Lordships have held as under: -
"3. The High Court dealt with the argument on the plea of Chandrika Prasad Singh's alibi in the following manner:
On the behalf of Chandrika Prasad Singh eight witnesses were examined. His main plea was that on the third December, 1964 he was examined by D.W. 1 Dr. Jamuna Prasad Rai as he had some urinary trouble. He was referred to another Doctor and D.W. 5 Dr. S.S. Tripathy, examined his blood and stool on the 5th December, 1964. D.W. 4 Dr. V.N. Singh did the operation. This operation was in the nature of phimosis Another witness D.W. 6 was examined to say that Chandrika Prasad Singh had taken a room on rent from 4th to 12th December, 1964 but he could not say definitely whether Chandrika Prasad Singh was seen by him in the night of the 5th December or in the morning of the 6th December.
The learned Sessions Judge has discussed the evidence of these witnesses in detail in paragraph 44 of his judgment and came to the conclusion that even taking the evidence of these defence witness at its face value it could not be conclusively proved that Chandrika Prasad Singh could not be present "at the time of the occurrence a the place of occurrence. The most important point in the plea alibi was the time of the actual examination of blood and urine a; well as the operation but this was not indicated anywhere in the evidence. This village is connected with Darbhanga by a pitched road and buses ply at short intervals. So, in my opinion, the learned Sessions Judge was right in disbelieving the plea of alibi put forth by Chandrika Prasad Singh.
The conclusion of the High Court is not tainted with any infirmity justifying re-examination of the evidence by this Court on special leave and interference with those conclusions. The onus to establish alibi was on Chandrika Prasad Singh and we do not find any cogent ground for disagreeing with the High Court that this onus has not been discharged on the evidence on the record."
36. Their Lordships of Hon. Supreme Court in AIR 1981 S.C. 1021 in the case of 'State of Haryana v. Sher Singh & others' have held that the burden to prove the alibi 29 is on the accused. In paragraph no.4, their Lordships have held as under: -
"4. When an accused pleads alibi, the burden is on him to grove it under Section 103 of the Evidence Act which provides:
103. The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
Illustrations: (a) A prosecutes B for theft, and wishes the Court to believe that B admitted the theft to C.A must prove the admission.
B wishes the court to believe that, at the time in question, he was elsewhere. He must prove it. In this case defence did not adduce any evidence to prove the alibi. On the contrary the evidence of P.W. 11, Lila, is that on 21st October, 1973, all the accused were produced by Lalji, the brother of the wife of respondent, Sher Singh in village Nand Karan Majra around 8 a.m., when they were arrested. This was in presence of of P.W. 11 and several others. Police had been there the witness says, from October 17 to 20, 1973. This evidence of P.W. 11 remains unrebutted. The plea of the respondents that they had been elsewhere at the time of the occurrence and returned to the place of occurrence by themselves on October 17, when they were arrested by police, is untrue."
37. Their Lordships of Hon. Supreme Court in AIR 1997 S.C. 322 in the case of 'Binay Kumar Singh v. State of Bihar' have held that strict proof is required for establishing plea of alibi. Their Lordships in paragraph nos.22, 24 and 26 have held as under: -
"22. The Latin word alibi means "elsewhere" and that word is used for convenience when an accused takes recourse to a defence line that when the occurrence take place he was so far away from the place of occurrence that it is extremely improbable that he would have participated in the crime. It is a basic law that in a criminal case, in which the accused is alleged to have inflicted physical injury to another person, the burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime. The burden would not be lessened by the mere fact that the accused has adopted the defence of alibi. The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily. But once the prosecution succeeds in discharging the burden it is incumbent on the accused, who adopts the plea of alibi, to prove it with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. When the presence of the accused at the scene of occurrence has been established satisfactorily by the prosecution through reliable evidence, normally the court would be slow to believe any counter evidence to the effect that he was elsewhere when the occurrence happened. But if the evidence adduced by the accused is of such a quality and of such a standard that the court may entertain some reasonable doubt regarding his presence at the scene when the occurrence took place, the 30 accused would, no doubt, be entitled to the benefit of that reasonable doubt. For that purpose, it would be a sound proposition to be laid down that, in such circumstances, the burden on the accused is rather heavy. It follows, therefore, that strict proof is required for establishing the plea of alibi. This Court has observed so on earlier occasions (vide Dudh Nath Pandey v. State of Uttar Pradesh 1981CriLJ618, State of Maharashtra v. Narsingrao Gangaram Pimple 1984CriLJ4.
24. Of course, Sri UR Lalit, learned Senior Counsel has vehemently argued that the courts should have presumed the genuineness of all official records and accepted the proof as more than reasonably sufficient to discharge their burden. We shall not forget that presumption is only a rule in the realm of burden of proof and the reasons concurrently weighed with the two courts below for disbelieving the plea of alibi put forth by these two appellants are quite sturdy. At any rate, in an appeal by special leave granted under Article 136 of the Constitution, this Court would not be inclined to upset the finding of fact based on such weighty reasons, more so when the reasons advanced by both the courts in support of the finding appeal to us also.
26. Sri Sushil Kumar, learned Senior Counsel arguing for the appellant Binay Kumar Singh (A-34) perused the plea of alibi put forth by that accused in the trial court. He examined one Dr. Binod Bihari Sinha who was Associate Professor of Medicine at Nalanda Medical College, Patna as DW-36. The witness of course, said that appellant Binay Kumar Singh was admitted as an in-patient of the said Medical College Hospital for appendicitis and was not in a position to move out of his bed even on 6.2.1980. The witness said this with reference to the Bed-head Ticket produced by him. But the cross- examination of DW-6 has exposed the falsity of his evidence. That a patient admitted for acute case of appendicitis in a Medical College Hospital was never shown to a surgeon creates a serious doubt as to whether this appellant was really admitted in that hospital as claimed by DW-6. The witness said in cross-examination that the patient left the hospital soon after his admission but again returned on the next day. PW-6 also admitted that the Bed-head Ticket referred to by him did not contain any entry made by him. No mark of identification of the patient was noted in such Bed-head Ticket and DW-6 had no previous acquaintance with this appellant. No other document was produced to support the plea. On such a meagre and unsatisfactory evidence, the two Courts below have rightly discarded his plea of alibi."
38. Their Lordships of Hon. Supreme Court in (2007) 7 SCC 378 in the case of "Rajendra Singh v. State of U.P. & another", have held that the burden to prove the plea of alibi lays upon the accused. The accused can prove this plea by leading evidence during trial. In paragraph nos.8 and 11, their Lordships have held as under: -
"8. That apart, the plea taken by the respondent Kapil Dev Singh in his petition under Section 482 Cr.P.C. was that of alibi. Section 103 of the Evidence Act says that the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is proved by any law that the proof of that fact lie on any particular person. The second illustration to section 103 reads as under:
"B wishes the Court to believe that at the time in question, he was elsewhere. He must prove it."31
This provision makes it obvious that the burden of establishing the plea of alibi set up by the respondent No. 2 in the petition filed by him under Section 482 Cr.P.C. before the High Court lay squarely upon him. There is hardly any doubt regarding this legal proposition. See Gurcharan Singh v. State of Punjab AIR 1956 SC 460, Chandrika Prasad Singh v. State of Bihar AIR 1972 SC 109 and State of Haryana v. Sher Singh AIR 1981 SC 1021. This could be done by leading evidence in the trial and not by filing some affidavits before the High Court. In such a case the prosecution would have got an opportunity to cross-examine those witnesses and demonstrate that their testimony was not correct. Learned counsel for the appellant has submitted that in fact no affidavits were filed in the High Court but what was filed were copies of two or three affidavits which were given by some persons before the Superintendent of Police, Allahabad. Thus, there was absolutely no legal evidence in support of the plea of alibi of Kapil Dev Singh, which the High Court chose to rely upon and accept for the purpose of quashing the order passed by the learned Sessions Judge.
11. Having considered the submissions made by learned counsel for the parties, we are of the opinion that the statements of the witnesses under Section 161 Cr.P.C. being wholly inadmissible in evidence could not at all be taken into consideration. The High Court relied upon wholly inadmissible evidence to set aside the order passed by the learned Sessions Judge. That apart, no finding on a plea of alibi can be recorded by the High Court for the first time in a petition under Section 482 Cr.P.C. As mentioned above, the burden to prove the plea of alibi lay upon the accused which he could do by leading evidence in the trial and not by filing some affidavits or statements purported to have been recorded under Section 161Cr.P.C. The whole procedure adopted by the High Court is clearly illegal and cannot be sustained. The other argument based upon the acquittal of co-accused Daya Singh has also no merits. The question as to whether an order passed under Section 319 Cr.P.C. would cease to be operative if the trial of the co-accused has been concluded, has been considered in Shashikant Singh v. Tarkeshwar Singh (2002) 5 SCC 738 and it was held as under in para 9 of the report : "9. The intention of the provision here is that where in the course of any enquiry into, or trial of, an offence, it appears to the court from the evidence that any person not being the accused has committed any offence, the court may proceed against him for the offence which he appears to have committed. At the stage, the court would consider that such a person could be tried together with the accused who is already before the Court facing the trial. The safeguard provided in respect of such person is that, the proceedings right from the beginning have mandatorily to be commenced afresh and the witnesses re-heard. In short, there has to be a de novo trial against him. The provision of de novo trial is mandatory. It vitally affects the rights of a person so brought before the Court. It would not be sufficient to only tender the witnesses for the cross- examination of such a person. They have to be examined afresh. Fresh examination in chief and not only their presentation for the purpose of the cross-examination of the newly added accused is the mandate of Section 319(4). The words 'could be tried together with the accused' in Section 319(1), appear to be only directory. 'Could be' cannot under these circumstances be held to be 'must be'. The provision cannot be interpreted to mean that since the trial in respect of a person who was before the Court has concluded with the result that the newly added person cannot be tried together with the accused who was before the Court when order under Section 319(1) was passed, the order would become 32 ineffective and inoperative, nullifying the opinion earlier formed by the Court on the basis of evidence before it that the newly added person appears to have committed the offence resulting in an order for his being brought before the Court." Therefore the mere fact that trial of co-accused Daya Singh has concluded cannot have the effect of nullifying or making the order passed by the learned Sessions Judge on 26.5.2005 as infructuous."
39. In the instant case, a Tehrir was filed before the Revenue Police Hisriyakhal, Tehri Garhwal. The investigation was carried out by the Naib Tehsildar. The FIR was lodged with the Patwari. The Tehsildar has not taken into possession the bed sheet, which was stained with blood. The Naib Tehsildar has not taken steps for sending the viscera etc. to the FSL for examination. The investigation was handed over to PW10 Dhani Ram Pokhriyal by the Patwari on 27.12.2011. Before 27.12.2011, the Patwari was the Investigating Officer. The Naib Tehsildar was the superior of Patwari. Panchayatnama was prepared in the presence of PW2 Bachan Singh and PW5 Smt. Meenakshi Rana.
40. This Court has come across a number of cases, where the FIR is registered with the Revenue Police and the investigation is carried out by the Patwari and in heinous crimes by the Naib Tehsildar. The practice of matter being registered by the Patwari and investigated by Patwari or Naib Tehsildar is contrary to the provisions of the Code of Criminal Procedure, 1973 and the Uttarakhand Police Act, 2007.
41. This system is known as "Revenue Police System", in "Revenue Police Areas". Now, at this stage, it would be imperative for us to go into the history of legal milieu. The manner, in which, the Revenue Police System came in existence in large parts of State of Uttarakhand, resulting in unscientific investigation causing a great miscarriage of justice. In the Scheduled Districts Act, 1874 (hereinafter to be referred to as the Act, 1874) extended in 33 the first instance to the whole of British India other than the territories, mentioned in the first schedule hereto annexed, and was to come into force in each of the Scheduled Districts' on the issue of notification under Section 3 relating to such district. Term "Scheduled Districts" means the territories mentioned in the first schedule.
42. Section 3 of the Act, 1874 provides that the Local Government may from time to time, by notification or in the local Gazette by what enactments were actually in force in any of the Scheduled Districts, or in any part of any such district and to declare of any enactment that it is not actually in force in any of the said districts or in any part of any such district or lastly of correct any mistake of fact in any notification issued under this section.
43. Section 6 of the Act, 1874 reads as under:-
"6. The Local Government may from time to time-
a. appoint officers to administer civil and criminal justice and to superintend the settlement and collection of the public revenue, and all matters relating to rent, and otherwise to conduct the administration, within the Scheduled Districts. b. regulate the procedure of the officers so appointed; but not so as to restrict the operation of any enactment for the time being in force in any of the said districts. c. direct by what authority any jurisdiction, powers or duties incident to the operation of any enactment for the time being in force in such district shall be exercised or performed."
44. The provinces of Kumaon and Garhwal fell in Part IV of Scheduled Districts, "North-Western Provinces", including Tarai Parganas comprising Bazpur, Kashipur, Jaspur, Rudarpur, Gadarpur, Kilpuri, Nanak-Mattha and Bilheri. In sequel to Section 6 of the Act, 1874, the Lieutenant Governor of the United Provinces was pleased to make the following rules for appointing police officers, and for regulating their procedure and for prescribing the powers and duties to be exercise and performed by them, in the districts of Almora and Garhwal and the hilly parts of Nainital including Kumaon police. The police officers also 34 included namely Peshkars, qanungos, superintendents of patwaris and patwaris, thokdars, pradhans and village headmen were permitted to exercise the police powers and perform the police duties as specified under the Rules.
45. The notification No. 494 VIII418x-6- In supersession of all previous notifications and in exercise of the powers conferred by section 6 of the Scheduled Districts Act, 1874, the Lieutenant Governor of the United Provinces was pleased to make the following rules for appointing police officers, and for regulating their procedure and for prescribing the powers and duties to be exercise and performed by them, in the districts of Almora and Garhwal and the hill pattis of Nainital: -
Kumaon Police
1. In addition to the police enrolled under Act V of 1861, the following revenue officials and other persons, namely:
a. Peshkars, qanungos, superintendent of patwaris and patwaris b. Thokdars, pradhans and village headmen, shall exercise the police powers, and perform the police duties, hereinafter specified in these rules.
Note- Act of 1861 was directed to be carried into effect, in the district of Almora, Garhwal and Nainital by notification no.1254/VIII- 228-A-81, dated the 30th August, 1892 (Local Government Gazette, page 650, September 3, 18022) Powers of peskars, Quanungos,
2. Peshkars, qanungos, superintendent sperintendennt patwaris and patwaris of of patwaris and patwaris shall exercise the powers and perform the duties vested in officers, incharge of police stations by the Code of Criminal Procedure, 1898.
Note- The chief duties of a Patwari as a Police officer under these rules are those at the instructions for Patwaris given in the appendix attached to these rules.
Duties of 3. A thokdar, a pradhan and a village thokdars, pradhans and headmen shall perform the following village headmen duties, namely-
a. he shall give immediate information to the patwari of the circle.
351. of every unnatural, suspicious or sudden death occurring in any village included in his thokdari or of which he is pradhan as the case may be;
2. of each of the following offences occurring in such village murder, culpable, homicide, rape, dacoity, robbery, theft receiving stolen property, mischief by fire house-breaking, counterfeiting coin causing grievous hurt, riot, harbouring, proclaimed offender, exposure of a child, concealment of birth, administering stupefying drugs, kidnapping, lurking house trespass; and
3. of all attempts and preparations to commit, and there is of any of the said offences;
b. he shall keep the police informed of all disputed which are going to lead to any riot or serious affray;
c. he shall arrest
1. any person who has been concerned in any offence specify in clause (a), sub-clause (2) of this rule, or against when a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned;
2. any person who has been proclaimed as an offender
3. any person who has escaped, or attempts to escape, from lawful custody;
4. any person reasonably suspected of being a deserter from the Majesty's Army;
d. he shall report to the patwari the arrival of suspicious characters in the neighbourhood;
e. he shall supply to the best of his ability any local information which a Magistrate or any officer of police may require, and shall promptly execute all orders issued to him by competent authority;
4. Whenever a thokdar, pradhan or Procedure on arrest by a village headmen arrests any person, he thokdar, pradhan shall take him, as soon as possible, to or village headmen.
the patwari of the circle or in his absence to the nearest Magistrate or officer exercising powers under rule 2.
5. The revenue officials and other Appointment and persons mentioned in rule I shall, in punishement of respect of their police powers and ex officio police duties, be appointed rewarded, officer. punished and dismissed by the authorities empowered to appoint, reward, punish and dismiss them in respect of their revenue or other functions.
366. Subject to the orders of the Regulation of ex officio police Commissioner, the Collector, shall officers control the peshkars, qanungos, superintendents of patwaris and patwaris and thokdars, pradhans and village headmen within his jurisdiction in the exercise of their police powers and performance of their police duties. I. MISCELLANEOUS a. Thokdars who are landholders appointed by hereditary succession to perform in respect of one or more villages certain police duties for which they receive thokdari dues assessed on the land revenue of those village, shall be appointed, or dismissed by the Commissioner of Kumaon.
b. Pradhans and gharpradhans shall be appointed or dismissed by the Collector.
APPENDIX Instructions regarding the chief duties which some patwaris have to perform as Police Officers.
1. Where there are no Regular Police in the hill districts of this division, patwaris have to perform police duties in their circle, and this part of their duty is as important as that of collecting revenue demands. A patwari has within his circle the powers of the police officer in charge of a station.
2. When any complaint of an offence is Section 154, Criminal made to the patwari, he will enter the Procedure Code substance of the complaint in the words of the complainant in the register of report of crimes, the complaint shall be read out to the complainant and he will be required to sign or attest it with his mark. One copy will be given to the complainant, the second will be sent to the sub-
divisional magistrate, and the third will remain in the register.
3. If the offence is a cognizable one, the Section 157 of Criminal patwari shall proceed to the spot and Procedure Code. commence enquiry. He shall enter day Section 172, Criminal byday all the proceedings in Procedure Code. connection with the investigation in his Section 170, Criminal special diary, setting forth the time at Procedure Code. which the information reached him, the time at which he began and closed his investigation, the place or places visited by him, and a statement of the facts Criminal ascertained through his investigation. OneCopy of his diary will be sent daily to the sub-divisional magistrate and the other retained in 37 the diary. When the investigation is completed and if the offence is prima facie proved, the accused, with any property discovered or any weapon or instrument connected with the offence, together with the result of the investigation, will be sent to the magistrate's court under the custody of the padhan and other villagers. If the offence is bailable and the accused is willing to give sufficient bail, he should not be sent under custody, but bail should be taken from him to appear before the magistrate on a day fixed, and such bail bond should be sent with the result of the investigation.
4. If by any general district order the Section 158, Criminal patwari has to submit the result of Procedure Code. investigation through the tehsildar or Sections 170, 171 Criminal other hill police official, he will send the Procedure Code. accused, or the report only if the accused is admitted to bail, and the things connected with the offence, to such officer. The complainants and the witnesses are not to be sent under arrest. They should be required to give a muchalka bond to appear before the Magistrate on a fixed date.
5. If the offence is not prima facie proved, the patwari shall take a bond from the accused to appear before the Magistrate if necessary, and submit the result of the investigation to the Magistrate for orders.
Section 158, 6. When information as to the Criminal commission of a cognizable offence is Procedure Code given against any person by name, and the offence is not of a serious nature, or if the patwari considers that there is not sufficient ground for entering on an investigation, he need not proceed to the spot, but should send a report to the Sub-Divisional Magistrate, giving his reasons for not taking up the investigation. He need not proceed to investigate the following offences, unless the complainant expressly so wish, viz., thefts under sections 379, 380 and 381, Indian Penal Code, when the property stolen is less than Rs. 10 in value.
Lurking house-trespass or house breaking under sections 453, 454, 456 and 457, Indian Penal Code, where no theft or other offence is actually committed, and attempts thereof.
Section 155, 7. If the offence reported is a non - Criminal cognizable one, the patwari shall refer Procedure Code.
the informant to Magistrate. If the Magistrate orders the patwari to investigate a non-cognizable offence, he 38 shall investigate it in the same manner as if the offence were a congnizable one.
Section 162 8. When any serious offence, such as Criminal murder, dacoity, robbery, or important Procedure Code theft, house-breaking, riot, or grievous hut occurs in his circle, the patwari shall on obtaining information, at once send report to the Deputy Commissioner and the Sub-Divisional Officer, and proceed to the spot to make investigation in the manner described in the above rules. If any person is wounded and is not already under proper treatment he should, unless his friends object, be sent to the nearest hospital for treatment, in charge of his relations or friends, or if any one is murdered the dead body must be sent for post mortem examination in the manner described in paragraph 10. The statement of the wounded person, if the wound is serious and is likely to cause death, must be taken down at once in the presence of the malguzar and other respectable men of the village, and it shall be signed by them as well as by the person making the statement the accused person should also be present, when possible.
Section 174 9. If any death takes place by accident Criminal or under suspicious circumstances, the Procedure Code.
patwari shall at once sent a report to the nearest Magistrate empowered to hold inquests and proceed to the spot, and in presence of the padhan and two or more respectable inhabitants of the neighbourhood make an investigation.
If the friends and relations of the deceased state that the death is accidental, and this is confirmed by the enquiry, permission can be given to nury or cremate the body, and the patwari shall send the result of the inquiry, signed by the padhan and respectable inhabitants and the friends and relations of the deceased to the Magistrate.
10. If, however, after examining the dead body, there appears any suspicion that death is not accidental, the dead body shall be sent at once in a shell or litter (if a shell is not available) covered with charcoal and sprinked with "kasis," if procurable, in charge of the padhan and other villagers to the nearest Civil or Assistant Surgeon. A report of the circumstances under which the body 39 was found noting any marks or wounds discovered, their position and size, being accurately described, and any facts likely to have caused death that may have been discovered must be forwarded with the dead body to the Civil or Assistant Surgeon. The persons escorting the dead body are not to be changed on the way. The patwari will continue the enquiry, and endeavour to ascertain the facts connected with the death, and submit his report to the Sub-Divisional Officer.
11. In cases of suspected poisoning, before sending the body for medical examination, the patwari will observe the following directions:-
(1) Any food especially flour and sweetmeats, drink, tobacco or drugs, and especially the food and drink last par-taken of by the deeased should be carefully brought away, and sealed and forwarded to the Civil Surgeon.
(2) Any vomited matter, which may be on the person or, bed should be carefully taken up with a clean rag, which should be put into & packet and sealed up.
(3) Any clothing, matting, wood, mud flooring or manure or dirt heap into which any vomited matter has soaked should be forwarded under sealed cover.
(4) The contents of any vessel containing vomited matter should be carefully put into a bottle and sealed up and forwarded.
(5) Information on the eight following points will be elicited as early as possible and entered in the special diary.
(a) The interval between the last time that the person who is supposed to have been poisoned, ate, and drank anything or took any medicine and the first appearance of symptoms of poisoning.
(b) The interval between the last time of eating or drinking either food or medicine and the occurrence of death (if death occurred).
(c) Whether the person moved from the place where the first symptoms were noticed, and if so, how far he went.
(d) What the first symptoms of poisoning were.
(e)Whether vomiting or purging occurred.40
(f) Whether the person became drowsy or fell asleep.
(g) Whether any cramps or twitching of the limits were observed or tingling of the skin or throat.
(h) Any other symptoms noticed.
12. In cases of hanging the following instructions should be observed:-
(1) If possible before the body is cut down or removed, the strangulating medium should be noted, and any lividity of face, especially of lips and eyelids, any projection of the eyes, the state of the tongue, whether enlarged and protruded, or compressed between the lips, the escape of any fluid from the nostrils or mouth and the direction of its flow.
(2) When the body is cut down or the strangulation medium removed, particular note should be made of the neck whether bruised along the line of strangulation.
(3) The direction of the mark must be noted whether it is circular or oblique.
(4) The state of the thumbs should be noted whether crossed over the palm.
(5) The materials by which hanging or strangulation have been effected should, if possible, be brought away and forwarded.
13. In making investigations the Section 160, 161 Criminal patwari can summon any person to Procedure Code. give evidence who may be supposed to know anything about the case. The witnesses should be examined orally, and the substance of their evidence should be recorded in the special diary.
14. When the patwari arrests any Section 51 and 52 Criminal person under any charge for which a Procedure Code warrant can be issued, he should at once search, his person, any article or any instrument or weapon found on his person should be placed in safe custody. If the accused person is a female, search should be conducted by a female. Search should always be made in presence of two independent witnesses.
15. In all congnizable cases sent up for trial or for orders a plan of the scene of the crime should be sent.
16. The patwari shall arrest any person within his circle who (1) is reasonably suspected of having been concerned in a cognizable offence or being a deserter from the army; (2) is a 41 proclaimed offender; (3) is a bad character and tries to conceal himself under suspicious circumstances or can give no satisfactory account of himself or is by repute an habitual robber, house breaker or thief, or an habitual receiver of stolen property, knowing it to be stolen. If any Police Officer enters his circle in search of any criminal, the patwari must give all assistance in his power to such officer in the arrest of the criminal.
17. The patwari shall order any unlawful assembly at any place within his circle to disperse at once, and it does not disperse, the patwari shall disperse it with the aid of the thokdars, padhans and villagers, and report the circumstances to the Sub-Divisional Magistrate and the District Magistrate.
18. If there is apprehension of any riot or other cognizable offence in his circle, the patwari shall to the best of his ability take measures to prevent it. For this purpose he may without warrant arrest any person designing to commit the offence if the offence cannot otherwise be prevented.
19. Schedule II, appended to the Criminal Procedure Code details which offences are cognizable and which are bailable, and the necessary information is added to these rules giving this detail for the offences usually dealt with by patwaris. Patwaris are not responsible for the correct classification of offences as they have not the necessary knowledge to enable them to do this.
20. When going round his circle the patwari should see that no one possesses arms without a licence, and, if the period of any licence has expired, he should take possession of the arms and report the matter to the Magistrate. The patwari should also see that no one uses any arms in contravention of terms of his licence. If anyone is found committing a breach of the terms of his licence, the arms should be seized and the matter forthwith reported to the Magistrate.
21. The patwari should also inspect from time to time any licensed shop for sale of ammunition or of explosives situated within his circle, and see that no one acts contrary to his licence reporting the result of his inspection to the Magistrate.
4246. According to North Western Provisions of Oudh Land Revenue Act 1901 No. III (as extended to the Kumaon Division) which was applicable to the Almora District, Garhwal District and Nainital District and the Rules and orders relating to Kumaon Division, the Kanungos and Patwaris have to discharge following functions:-
Chapter IV.
Duties of Kanungos.
"17. The chief duty of the kanungo is to test and generally supervise the work of the patwaris in his circle and pass orders on matters which need correction. He shall examine their registers from time to time and see that they are properly kept up. If the patwari does not understand his work it is the duty of a kanungo to instruct him.
The kanungo shall report, any neglect of duty on the part of a patwari of every circle resides within it, unless he has received permission to reside elsewhere.
18.- The kanungo is especially required to ascertain that the patwari of every circle resides within it, unless he has received permission to reside elsewhere.
19.- The kanungo shall report on all matters requiring report which come to his notice in the course of his rounds. He shall also see that the patwari carries out carefully all the orders contained in the rules framed for him. If he finds any patwari of his circle neglecting to carry out any order he shall report him to the deputy commissioner.
20.- The Kanungo shall report especially on the sanitary condition of the villages, the state of roads and bridges and the condition of all Government properties in his circle. He shall also report if he finds any of the reserved trees (viz., deodar, cypress, walnut, and tun) or any tree within 50 feet of the edge of a public road, cut without permission.
21.- The kanungo shall keep a diary in the form of the partwari's roznamcha, in which he shall enter a record of the official duties performed in the course of the day, the places he visits, the reports that are made to him and the action he takes on them. The diary shall be kept in alternate volumes and shall be taken or sent to the sub- divisional officer for inspection once a month. The kanungo shall also maintain a correspondence or siyaha register, showing the orders he receives, the date of their receipt, the date of disposal, and the manner in which compliance has been made.
22.- The kanungo is required to spend his time within the limits of his circle and shall not remain at the tahsil or peshkari without special orders. He shall obtain in his diary the signature of every officer on whom he has been in attendance.
23.- In districts where the patwaris are supplied with copies of village settlement records, the kanungo shall, once in the year, inspect those records as well as the papers prepared by the patwari during the previsous year under rules 15 and 16 of the rules for patwaris. He shall 43 check the rough khasra entries (vide rule 15 of the rules for patwaris) of not less than 20 per cent of the village inspected in each year. He shall note the result of his inspection in his own diary and cause a similar entry to be made in the patwari's diary. If any of the records are in a bad condition or missing he shall at once report the fact to the deputy commissioner throught the tahsildar or peshkar.
24.- The kanungo shall see in his rounds that all authorized or permissible new cultivation made in a village in a surveyed patti is entered properly by the patwari in his rought khasra of extension of cultivation prescribed in rule 15 of the patwari rules. He will comply with the directions in clause (v) of this rule. He shall also enter in his diary and in that of the patwari the number of entries in the map and rough khasra of extension tested by him and the number found correct.
25.- The kanungo shall also, in his round in the surveyed patties, comply with clause (vii) of rule 15 of patwari rules.
26.- the kanungo shall be responsible that in the surveyed patties each patwari in his circle completes the work of map correction in time each year. He shall report to the deputy commissioner if any patwari has not done so, and should assistance be required merely on account of the incompetence of the patwari to do the work, an amin may under the orders of the deputy commissioner, be employed at his expense.
27.- The kanungo shall himself conduct any survey or measurement or prepare any map or superintend any survey operations prescribed under those rules, whenever required to do so by the deputy commissioner.
28.- The reports or papers, submission of which is prescribed in these rules, will be submitted as follows:-
Under rules 17 and 19 ...Through the sub-divisional officer to the deputy commissioner.
Under rule 20 .... To the sub-divisional officer.
Under rules 25 and 26 ... Through the sub-divisional officer to the deputy commissioner.
CHAPTER II.
Duties of patwaris as revenue officials.
11.- A very important duty of the patwari is to collect in full the instalments of land revenue and cesses, rents for water mill and Nayabad grants, shops and buildings in his circle on the dates these fall due, and to take the collections as soon after as possible to the tahsil or peshkari with a tauzi in the form appended (form I) showing by villages the demand, collections and balances. This shall be left by the patwari in the tahsil, where it shall be destroyed after three years along with the khatauni. The patwari shall be supplied with the jamabandi form appended (form II) for his circle, showing the amount of revenue and cesses due from each village and also jamabandis of mill rents and Nayabad grants. He shall collect the whole jama from the malguzar and not from individual co-sharer from whom the malguzar will realize the revenue due by each. When the malguzar's post is temporarily vacant the patwari shall realize the revenue from co-sharers. He shall give the 44 receipt in the printed form appended (form III) to the person from whom he receives the revenue and write up the counterfoil at the same time.
12.- Besides the land revenue and cesses the patwari shall also collect other government demands of which he has received notice from superior officers. The patwari shall collect these by prescribed dates and pay the same into the tahsil, or elsewhere, as ordered.
13.- The patwari shall report on changes of proprietors or khaikars within his circle in the manner laid down in the mutation rules.
14.- In the districts in which the patwari is supplied with a mutation register for each village of his circle in the form of the phant (form IV) the patwari shall when he visits the district or tahsil head-quarters as the case may be to deposit his biennial kisht, bring with him these registers and copy into them from the corresponding registers maintained in the land records office, or from the schedules of mutations supplied by the land record office to the tahsil, particulars of all mutations which have not been noted in his books. Where patti mutation registers are not maintained he shall bring the malguzars' phants and correct them accordingly to particulars supplied by the land records office to the tahsil.
15.- Each patwari in the surveyed patties shall maintain a record of all extensions of cultivation into measured land and shall plot them on his copy of the village maps in accordance with the following rules. Alterations in old measured cultivation will not be entered in this record:-
(i) He shall inspect each of the five blocks of villages into which his circle is already divided, in rotation, according to the present system, one block a year.
(ii) On inspecting a village he shall note down all extensions of cultivation on Kaisa-i-Hind or beap land that have been made since his last inspection.
Before entering each extension of cultivation he will carefully check the maps of adjacent villages in order to see that the extension has not already been entered in them.
(iii) If the extensions made are either (a) extension sanctioned by an order of court, or (b) not sanctioned, but permissible and unobjectionable extensions of old cultivation, he shall enter them in a rough khasra, a specimen of the form of which is appended (form V) and in the remarks column shall give a note describing the situation and nature of the cultivation. He shall also mark them in pencil on the village map.
(iv) In patties and villages which are scheduled by the commissioner in lists A and B and in cases where the extensions made are not permissible or require orders (e.g., when they are situated at a distance from old cultivation) the patwari shall not enter them in his khasra, but shall make a note of all the facts regarding them and a rough map of their position.
(v) On completion of his inspection he shall submit his khasra and notes to the circle kanungo not 45 later than November 1. The kanungo shall examine the khasra and if he considers it necessary in any case, he may make further inquiry, or report an entry to the sub-divisional officer for orders. If he does not think it necessary, he shall direct the patwari to ink in the extensions on the map. The sub-divisional officer, on any reference from the kanungo as above, may either allow the entry to pass, or may report to the deputy commissioner with a recommendation for other action. Reports by the kanungo should reach the sub-divisional officer not later than December, 15.
(vi) On receiving the kanungo's orders the patwari shall ink in the extensions on the map, giving each plot a serial number commencing from the last number already existing in the map and khasra. In the case of Kaisar-i-Hind land he shall note the existing map number in the remarks column of the khasra and enter the new serial number on the map for the whole or a portion of the Kaisar-i-Hind number as the case may be. All the new entries in the map shall be in red ink.
(vii) If there is any dispute about possession and rights with regard to any number the patwari shall refer the disputants to the courts, and shall note the dispute in the remarks column.
(viii) The kanungo shall submit all notes and sketches made under rule (v) to the sub-divisional officer for orders. If orders are passed sanctioning any extensions so reported the patwari shall add them after the last existing number of his khasra and shall plot them on the map as above. In other cases he shall carry out such orders for prosecution, stopping the cultivation etc., as may be passed.
(ix) When the nayabad grant has been confirmed by the Commissioner a trace of the sanctioned plot will be sent to the patwari who will amend his copy of the settlement map in accordance with the trace and then return the trace to the sub-divisional officer with a note that he has done so. The court will then make over the duplicate trace to the grantee. The patwari will record the grain in his khasra of extensions.
(x) At his first inspection of each block under these rules the patwari shall also fill in the khasra in the new form for all extensions which have already been entered in the field-book, or jinswar, and map since settlement, maintaining the numbers given then therein.
(xi) In addition to this inspection the patwari shall be responsible as at present for watching for, in all villages on his rounds, and reporting all extensions, which are offences under the Forest Act or are otherwise inadmissible.
(xii) At the end of the khasra the following abstract will be entered.
16. In the surveyed patties every patwari shall be furnished with a complete set of survey instruments at Government expense, except a brass scale, a pair of compasses and an area comp which the patwari shall 46 provide at his own expense, and which he shall retain when he leaves the post for any reason. Should any instrument get out of order the patwari shall report to the deputy commissioner, through the supervisor kanungo, for orders.
17. The instruments provided by Government are-
1 Gunter's chain pins.
1 Sighting rule.
1 Rectangular glass.
1 Ivory scale.
1 Plane table with stand.
18. The patwari shall keep a map of every village in his patti and be responsible for its custody, repair, and when necessary renewal. That supplied to the patwari in the surveyed patties shall be used year after year until it becomes unserviceable either through wear and tear or through the large number of alterations. When it has become unserviceable the patwari shall, under the orders of the supervisor kanungo, prepare from it a new map showing the field boundaries as they exist and omitting those that have disappeared. Tracing cloth for this new map should be supplied by the land records for this new map should be supplied by the land records peshkar. The old map shall be crefully kept by the patwari along with his settlement records.
19. The following additions and corrections will invariably be made in the patwari's map in the surveyed patties in red ink, viz., new buildings, roads, hamlets, well, mills, canals, water courses, divided fields in measured area, groves, area lost by floods, land-slips and all other changes of a similar nature.
20. In the non-cadastrally surveyed patties the map and field book (khasra) prepared at settlement shall be kept in the land records office, and no changes shall be recorded in them until the next revision of records at settlement: provided that the deputy commissioner shall at any time direct that any errors found to exist in them shall be corrected and may, should it be found necessary at any time by special order, cause the revision of any specific records to be carried out.
21. In rent and partition cases the patwari with the previous sanction of the deputy commissioner, may be required to make local investigation, verifying the land in dispute, or existing possession in partition cases. In the absence of special instruction to the contrary, the verification shall be made with the old and new shajra if there are two shajras, one of the old and one of the current settlement. When there is only one shajra the verification shall be made with that shajra. It shall in eigher case be made in the presence of the parties and their witnesses, if any, and of the malguzar of the village. If the land in dispute is not measured, it shall be signed by the parties and the malguzar of the village and returned to the court within the time allowed through the land records office.
22. When a patwari is directed to give possession according to a decree or partition he shall point out separately each field in which possession has to be given, so that there may be no doubt regarding the identity of the fields of which possession is given. If a single field is to be divided between two or more parties the patwari 47 shall erect boundary marks showing the parts allotted to each. The practice of showing fields from a distance is objectionable and leads to confusion. If there is any mistake in the numbers it shall be reported to the courts concerned. The patwari's reports about verification, etc., are to be sent through the land records office.
23. The patwari shall submit during the first week of November in each year to the tahsildar or peshkar a report on the condition of all the theodolite and other survey stations or boundary pillars in his circle, noting the last survey marks very carefully. As far as possible he must inspect them in stations or pillars have been damaged, or destroyed, the tahsildar or peshkar shall forward the report to the deputy commissioner.
24. No one is allowed to erect a water-mill gul or irrigation channel without the permission of the deputy commissioner. If any one does so the patwari shall report to the sub-divisional officer and pending orders, stop the working of the mill. If any one applies for a new water- mill the patwari shall investigate and report according to orders received from the sub-divisional officer.
25. Building on unmeasured land, new unterraced cultivation, or cultivation not adjoining measured land, and all new cultivation in scheduled patties and villages outside the measured area are not allowed without special permission. If any such building or cultivation is made the patwaris shall at once report to the sub- divisional officer for orders. In the case of application for nayabad grants the patwari shall report according to orders received from the sub divisional officer.
26. The cutting of reserved and road side trees, the sale of forest produce, or its use by persons not holding land in the village, are forbidden. It is the duty of the patwari promptly to report these and all other breaches of the Civil Forest Rules to the sub-divisional officer.
27. The patwari is bound to look after Government property in his circle. He shall investigate and report any damage done to such property. He shall also see that Government paraos are not encroached upon and that settlement paths are properly maintained by padhans and that unauthorized quarrying is not resorted to.
28. The patwari will make all arrangements for utar and bardaish in accordance with sanctioned indents. He is responsible for the proper maintenance of the roster among villages, and for superintending distribution of the work by padahnas. He will maintain Bari Registers I and II and see that malguzars maintain register III.
29. The patwari shall submit a weekly report in the form appended (form VI), giving an account of crops, the condition of peop0le, etc., to the tahsildar or peshkar. Each patwari shall be supplied with a register of these forms in counterfoil called register No.6, each register containing a sufficient number of forms for one year. The weekly report shall be submitted on one-half of the form, a copy thereof being retained by the patwari on the other half. The new annual register shall be opened with the first week of October and shall be closed in the last week of September. The patwari shall send it to the tahsil one month after it is closed, and it shall be kept there for three years and then destroyed. In times of scarcity, cases of severe distress or deaths from starvation, if any, 48 shall be promptly reported to the Deputy Commissioner, the sub-divisional officer and the tahsildar or peshkar, and in the weekly reports special mention at such times shall be made of the stock of food grain in the circle and the way in which the people are supporting themselves.
30. Immediately on the occurrence of any calamity, such as hail, locusts, fire, flood, epidemic disease of man or beast, the patwari shall report in writing to the tahsil or peshkari, the sub-divisional officer and the deputy commissioner, and also to the Civil Surgeon in case of any epidemic disease of man, giving the approximate extent to which damage has been done. In cases of diseases of men and cattle weekly reports shall be submitted so long as the disease continues. In the case of epidemic disease of cattle he shall also at the commencement of the outbreak send a report direct to the veterinary assistant.
31. If any person takes advances from Government for constructing a gul or improvement of land, etc., he is bound to apply the money to that purpose and no other. The patwari shall in his round examine and report on the progress of the work. If the loan is misapplied the patwari shall report the fact to the deputy commissioner.
32. If any European or any pensioner, civil or military, any muafidar, thokdar, malguzar or his mukhtar, any sepoy or reservist, residing in his circle dies, the patwari shall at once report the date of his death to the deputy commissioner.
33. The following registers shall be kept by the patwari in addition to those referred to in the foregoing rules or otherwise required by him in carrying out his duties:-
(1) Order book.- This shall be a permanent register in the form appended (form VII) for the entry of all orders and instructions relating to work or practice of a permanent character which the supervisor kanungo or other superior officer may communicate to the patwari. It shall be permanently retained by the patwari.
(2) Roznamcha or diary- It shall be kept in the form appended (form VIII) or in the form P.2 and shall contain the following occurrence:-
(a) Official duties which the patwari has performed each day or explanation of failure to perform the same.
(b) During his field-to-field inspection the number of fields he inspected each day.
(c) The fact of attendance upon any court or upon any official, the cause of attendance, and name and designation of the court of official. Such entry shall be attested by the signature of the court or official.
(d) The absence of the patwari on leave or for any purpose other than under clause (c), and his return after such absence, with date.
(e) The execution of any orders received from superior officers.
(f) Death of any European, muafidar, thokdar, malguzar, arms licence holder or any Government pensioner of which he may hear.49
(g) Calamities such as hail, locusts, fire, flood, frost, cattle disease or epidemic disease of man reported or coming to his notice.
(h) All cases of encroachment on Government property reported or coming to his notice.
(i) The visit of any official to the circle and arrangements for bardaish, etc., made for him.
(j) Any reports made to him of a police nature other than those entered in the trefoil register of crimes, or of any matters on which he is required to report.
(k) The village or villages he visits and the work done, such as inspecting sanitation, testing births and deaths etc. (3) Correspondence and stamp register as prescribed by the Deputy Commissioner. Period of retention- three years with patwari.
34. The roznamcha shall be bound in volumes of convenient size. The diary of each year shall commence on the 1st July and shall close on the 30th June. It shall be kept by the patwari for four years from the date on which it is closed, and then brought to the tahsil or peshkari to be destroyed. A separate serial number in large and clear figures wshall invariably be prefixed to each entry. Each entry shall be closed with an asterisk and no blank line shall be left between two consecutive entries. When the patwari makes any report to in person, the kanungo or other superior officer, he shall obtain his signature to the entry of the fact reported in his roznamcha.
35. In addition to the above the patwari shall carry out all orders sent to him by his superior officers promptly and carefully.
36. The following list shows the periods for which the patwari's records enumerated therein shall be retained by the patwaris and the periods for which they shall be preserved at the tahsils or peshkaris and the manner in which they shall finally be disposed of:-
a. Mill rent register are kept at Sadar. Patwaris keep a list of mill rents of their patties by village and the list should be retained till a revised list is supplied. b. Patwaris keep a list of shops and sites leased. The list is posted up as orders are received and compared with the tahsil register every year. The list should be kept permanently or till the terms of settlement.
c. Cooli Register. A copy of the list compiled by the Forest Settlement Officer has been supplied to patwaris. It should be retained till a new or revised list is supplied.
37. The report and papers, submission of which is prescribed in these rules, will be submitted as follows:-
Under rule 7 (ii)- Direct to the deputy commissioner.
"" 15 (v) and (x)- Throught kanungo.
"" 24, 25, 26, 27, 28, 31, 32- Direct to the sub-
divisional officer.
"" 29 and 30 to officers named.50
47. The Parliament has enacted the Code of Criminal Procedure, 1973 to consolidate and amend the law relating to Criminal Procedure.
48. Section 2 (c) of Cr. P.C. defines cognizable offence.
49. Section 2(h) of Cr.P.C. defines investigation.
50. Section 2(l) of Cr.P.C. defines non-cognizable offence.
51. Section 2(o) defines officers in charge of a police station.
52. Section 2(r) defines police report.
53. Section 2(s) defines police station.
54. Chapter IV of Cr.P.C. provides for powers of superior officers of police.
55. Chapter V of Cr.P.C. deals with arrest of persons.
56. Chapter VI of Cr.P.C. deals with processes of compel appearance.
57. Chapter VII of Cr.P.C. deals with processes to compel the production of things.
58. Chapter XII of Cr.P.C. deals with information to the police and their powers to investigate.
59. The State of Uttarakhand has enacted the Uttarakhand Police Act, 2007 (hereinafter referred to as the Act, 2007).
60. Section 2(n) of the Act, 2007 defines police district.
61. Section 2(p) of the Act, 2007 defines police officer.51
62. Section 2(q) of the Act, 2007 defines police personnel.
63. Section 2(u) of the Act, 2007 defines "Revenue Police Area", to mean the area, existing as such or to be notified as a Revenue Police Area.
64. Section 2(v) of the Act, 2007 defines "Revenue Police System", to mean the system of policing, existing in a Revenue Police Area.
65. Chapter II of the Act, 2007 deals with Constitution and Organization of the Police Force.
66. Section 7 of the Act, 2007 postulates as under: -
"1. That the State Government shall, by notification, create Police Stations, with or without posts.
2. The State Government shall, by notification, is required to notify the Circle and there shall be minimum two Police Stations in a Circle.
3. A Police Station shall be headed by an Officer-in- charge, who shall not be below the rank of Sub-Inspector of Police."
67. Section 8 of the Act, 2007 provides that under the Revenue Police System, such area of any District shall fall as the Government determines from time to time.
68. Section 10 of the Act, 2007 provides for Intelligence Department.
69. Section 11 of the Act, 2007 provides for Crime Investigation Department.
70. Section 12 of the Act, 2007 provides for Specialized Police Force.
71. Section 15 of the Act, 2007 provides for Police Training Institution.
72. Section 16 of the Act, 2007 provides that the State Government may establish a Bureau of Police 52 Research and Development for undertaking research into matters, relating to police and crime.
73. The Administration of the Police Force is provided under Chapter III of the Act, 2007.
74. Section 20 of the Act, 2007 provides for Director General of Police.
75. Section 21 of the Act, 2007 provides that the Director General of Police shall make regulations or issue orders providing for prevention of crime, investigation of crime, maintenance of law and order etc.
76. In Chapter IV of the Act, 2007, there is a provision of constitution of State Police Board and Police Establishment Committee.
77. Followings are the functions and duties of Police under Section 39 of the Act, 2007.
39. (1) The indicative role and functions of the police, as per the rules made by the Government from time to time, may broadly constitute the following-
"(a) to uphold and enforce the law impartially, and to protect life, liberty, property, human rights, and dignity of the member of the public;
(b) to assist in maintaining law and order;
(c) to protect internal security, to prevent and control terrorist activities, breaches of communal harmony, militant activities and other situations affecting internal security;
(d) to protect public properties including roads, railways, bridges installations and establishment etc, against acts of vandalism or any kind of attack;
(e) to protect crimes, and reduce the opportunities for the commission of crimes through their own preventive actions and measures as well as by assisting and cooperating with other relevant agencies implementing due measures for prevention of crimes;
(f) to accurately register all complaints, brought to them by a complainant, or his representative, in person or received by post, e-mail or other means, and take prompt follow-up action thereon, after duly acknowledging the receipt of the complaint;
(g) to register and investigate all cognizable offences coming to their notice through such complaints or otherwise, duly supplying a copy of the First Information Report to the complainant, and where appropriate, 53 apprehend the offenders and conduct investigations as per law;
(h) to create and maintain a feeling of security in the community and, as far as possible, prevent conflicts and promote amity;
(i) to provide all possible help to people in situations, arising out of natural or man-made disasters, and provide active assistance to other agencies in relief and rehabilitation measures;
(j) to help the individuals, who are in danger of physical harm to their person or property, and to provide necessary help and afford relief to people in distressed situations;
(k) to facilitate orderly movement of people and vehicles and to control and regulate traffic on roads and highways;
(l) to collect intelligence reports, relating to matters affecting public peace, and all kinds of crimes, including social offences and other matters relating to national security and disseminate the same to all such agencies as may be prescribed, besides acting on it themselves.
(m) to perform all such other duties and discharge such responsibilities, as may be enjoined on these by the State Government or an Authority, empowered to issue such directions under any law for the time being in force;
(n) to keep and display, in the Police Station, a record of habitual offenders and persons involved in organized crime;
(o) to maintain, updated record of habitual offenders and persons involved in organized crime, at the District and State level.
(2) A police officer shall take charge, as a police officer on duty, of all unclaimed properties and shall take action for their safe custody and disposal in accordance with the provisions of Section 46."
78. Section 40 of the Act, 2007 provides that it shall be lawful for the police force and armed police units to investigate and to render such assistance, as may be required in the Revenue Police Area, in the scientific investigations of crimes and regulation of crowd and relief, rescue operations etc.
79. There are special provisions for policing under Section 50 of the Act, 2007.
80. According to Section 2(s) of Cr.P.C., there is a provision for declaring any post or place as Police Station.
81. According to Section 7 of the Act, 2007, the State Government may, by notification, create Police Station, with or without posts. There is a requirement of two Police 54 Stations in a Circle to be headed by an Officer-in-charge, who shall not be below the rank of Sub-Inspector.
82. There is a detailed procedure given under Chapter XIII of the Cr.P.C. qua the manner, in which, the investigation is to be carried out.
83. The Revenue Police System may be relevant at the time when crime in hilly areas was low. However, with the passage of time, the crime rate has increased in the State of Uttarakhand as well. We may refer the report of National Crimes Record Bureau, 2016. Moreover, the instructions issued hereinabove, on the basis of which, the Revenue Officers are permitted to register and investigate the matters are contrary to Constitutional Scheme as well as the Code of Criminal Procedure. The instructions are contrary to the Act.
84. In the State of Utttarakhand, 9156 cases in the year 2014, 10248 cases in the year 2015 and 10867 cases in the year 2016 were registered under IPC. The rate of cognizable crimes (IPC) 2016 is 101.8. It is fairly on higher side. 3893 cases in the year 2014, 4796 cases in the year 2015 and 5207 cases in the year 2016 were registered under Special & Local Laws (SLL). The rate of cognizable crimes was 48.8 percent. 194 murder cases were registered under Section 302 IPC. 29 cases of homicide under Section 304 IPC, 57 cases of dowry death, 65 cases of grievous hurt, 344 cases of assault on women with intent to outrage her modesty, 9 cases of assault or use of criminal force with intent to disrobe, 790 cases of kidnapping and abduction, 56 cases under Section 366 IPC, 336 cases of rape, 2 cases of gang rape, 6 cases of attempt to commit rape under Section 376 r/w 511 IPC, 1823 cases under Sections 379 to 382 IPC, 22 cases of offences promoting enmity between different groups, 418 cases under Sections 453 to 457 IPC r/w 380 IPC, 161 cases under Sections 406 55 to 409 IPC, 195 cases under forgery, 27 cases under Dowry Prohibition Act, 13 cases under Immoral Traffic (Prevention) Act, 1956, 30 cases under SC/ST (Prevention of Atrocities) Act, 1989, 58 cases under Information & Technology Act, 2000, 813 cases under Arms Act, 1959, 2 cases under Explosive Act, 1884 & The Explosive Substance Act, 1908, 351 cases under Gambling Act, 1867, 29 cases under Forest Act, 1927, 19 cases under Wildlife Protection Act, 1972, were registered in the year 2016.
85. The Revenue Officers including Patwari, Qanungo, Naib Tehsildar, Tehsildar are not trained to be investigating officer in serious criminal matters. They have to discharge their duties in revenue matters.
86. The Revenue Police is not trained in handling the scene of occurrence, interrogation, computers, voice analysis, fingerprints, track marks, tool marks, firearms, documents, poisons, narcotics, alcohol, explosives, fires, microtraces, hairs, body fluids, DNA profiling, possibilities of death including suicide, accident, homicide, identification of the dead, skeletal remains, sexual offences etc. These can only be undertaken by the police trained on scientific lines. They are not familiar with the Cr.P.C., the Evidence Act and other ancillary laws governing the criminal law. Their qualification is only matriculation.
87. The Revenue Officers are also not well conversant with the general principles of crime scene investigation, general principles of packaging of exhibits, forensic biology, DNA profiling, bloodstain pattern, explosive substances, acid attack cases, digital evidence, road accidents, image analysis, polygraph test, wildlife, speaker identification etc.
88. The Revenue Officers botch-up the investigation resulting in acquittals.
5689. In 2004 (2) U.D. 377, in the case of "Naveen Chandra vs. State of Uttaranchal", the Division Bench of this Court has held that in hilly areas, adequate police force should be created and there is a need that the investigations be conducted in hilly areas also by duly trained police officers, who are aware with the modern techniques of investigation. The Division Bench has held as under: -
"22. We are not at all satisfied and happy with the standards of investigation and after all nothing much even could be expected since this investigation has been conducted by the Patwari. It is really unfortunate that even in this 21st Century, the investigations should be conducted in the hilly areas by the revenue staff. It is really further unfortunate that even now the people in the hilly areas should not have the police stations or the trained police personnel to investigate into the ghastly crimes. These revenue personnel seem to have been empowered u/s 6 of the Scheduled Districts Act, 1874 by the Lieutenant Governor of the then United Provinces. The rules seems to have been framed on 07.03.1916 vide Notification No. 494 VIII418x-6. The rules suggest that Peshkar, Kanungos, Superintendent of Patwaris, Patwaris, Thokdars, Pradhan and village head man, shall perform the police duties specified in the rules. Out of them Peshkars, Kanungoes, Superintendent of Patwaris and Patwaris were authorised to perform the duties vested in the officers incharge of the police stations by the Criminal Procedure Code, 1898. No wonder that the standard of investigation is hopelessly low. It is hoped that adequate police force is created in the hilly areas, because in our own opinion, persons living in the hilly areas will in fact be requiring equal, if not, any more protection. It has to be realised that time has changed and there is need now that the investigations are conducted by duly trained police officers, who are aware of the modern techniques of investigation. Merely because these are the hilly areas could not mean that even in this 21st century, the investigation into ghastly and serious crimes could be left with the village police."
90. In 2010 (10) SCC 611, in the case of "Sunder Singh vs. State of Uttaranchal", their Lordships of the Hon'ble Supreme Court have held that the time has come when the village police system prevalent in the State of Uttaranchal in respect of distant areas would have to be changed and the distant villagers would have to be given the protection and services of the regular police. Their Lordships have further held that in fact effective policing is the need of the whole society, urban as well as rural. Their Lordships have held as under: -
57"43. We have already commented on proper questions not being put to the accused. It is obvious that the prosecuting agency did not even bother to look into the questions before they were asked to the accused in his Section 313 Cr.P.C. examination. 2 Merely because this heinous offence took place in the remote corner of District Bageshwar which - at the time when the offence took place was Almora District - it did not mean that the investigating agency could do some slipshod investigation and thereafter the prosecution could be allowed to be equally casual as it appears to have been in conducting the prosecution. This also speaks about the duty of the Trial Court Judge who cannot be a mere spectator to what goes on in the name of the trial. The Trial Judge has to control the trial by active application of mind. A time has come when the village police system prevalent in the State of Uttaranchal in respect of distant areas would have to be changed and the distant villagers would have to be given the protection and services of the regular police. It is really strange that the four Districts which are in the plains have had advantage of the police system while in the remaining Districts, the distant part of those Districts should be deprived of a police system. Such deprivation undoubtedly results in affecting the law and order situation, the detection of crimes and the protection of the poor villagers. In fact effective policing is the need of the whole society, urban as also rural. However, all these factors have not prejudiced the accused. Even with these factors, the prosecution has fully proved the heinous 2 offence committed by him. This Court has time and again held that incompetent investigation should not result in the accused getting any unfair advantage. We reiterate the same principle."
91. In the hilly areas also, the investigation is required to be carried out only by duly trained police officers, who are well conversant with the modern techniques of investigation. The investigation of serious crimes by the Revenue Police results in law and order problem. The investigation should be carried out only by the regular police. The people in hilly areas are required to be given protection and service by the regular police. The detection of crime and protection by revenue police officers is pathetic.
92. It is also strange that in four districts of State of Uttarakhand, the investigation is carried out by regular police by adopting latest techniques but qua rest of the districts, the investigation is still carried out in a very slipshod manner by the Revenue Police. The Revenue Police is not capable of handling the investigation in heinous crimes.
5893. All the citizens in the State of Uttarakhand have to be given same treatment in detection and prevention, investigation and trial of criminal cases.
94. There is no intelligible differentia so as to distinguish persons i.e. of hilly areas from the rest of the population living in four districts of the State of Uttarakhand, as far as Right to Life, scientific investigation and speedy trials are concerned. The crime must be detected at the earliest and the guilty should be punished with utmost urgency to maintain rule of law. Dividing states into two parts without any justification is against the rule of law. Rule of law is the basic feature of the Constitution. Right to Life includes scientific investigation of crime by the duly trained police personnel.
95. It is evident from the instructions quoted hereinabove that the Revenue Agencies are pre-occupied in dealing with revenue matters. They do not have time to undertake policing being over-occupied in revenue matters.
96. In 2007 Cri. L.J. 1854, in the case of "Daulat Singh vs. State", the Division Bench of this Court has held that since the accused could not give plausible explanation of death of his wife by strangulation, there should be complete chain of circumstances which lead to inference that accused alone had committed murder. The Division Bench of this Court has held as under:-
"16. Learned Counsel for the accused-appellant further contended that the postmortem report (Ext. Ka-14) reveals that there were no contents of food in the stomach and the large intestine of the deceased. Learned Addl. G.A. refuted the contention. Perusal of the evidence of the Investigating Officer reveals that latrine and urine was found on the ground and on the clothes of the deceased. This fact also reveals that at the time of the strangulation it happened so. In case, the deceased had committed the suicide by hanging, her body could not have been found lying on the ground. This fact also leads to take inference that the death was committed by strangulation. We do not find any substance in the arguments raised by the learned Counsel for the accused-appellant.59
17. Learned Counsel for the accused-appellant contended that there are ante-mortem injuries on the neck of the deceased. If she was strangulated, there would have been the post-mortem injuries on the person of the deceased. The learned Addl. G.A. refuted the contention. Perusal of the record reveals that nobody had seen the dead body hanging in the ceiling of room. It was pointed out by the learned Counsel for the accused- appellant that the appellant went out of his room in the morning of 11-10-1986 and when he returned to his room he found the doors were closed. He entered into the room and found that his wife was hanging by rope and he cut the rope and found his wife-deceased dead. Neither the Investigating Officer nor the Gram Pradhan found the deceased hanging in the ceiling of the room. It is proved by the medical report that the ante mortem injuries weer found round the neck of the deceased. As we have pointed out in the preceding paragraph that the accused-appellant had not stated this fact Under Section 313, Cr.P.C, The said argument was not found tenable in the preceding paragraphs. This leads to take inference that the accused-appellant caused the death by strangulation and it is obvious that the ante-mortem injuries would come on the body when the deceased had been strangulated by the accused-appellant. The Investigating Officer or any of the witnesses had not found any part of the rope on the ceiling of the room. It is also found that there were 3-4 pieces of rope lying on the ground. It is not understandable why it was cut into pieces.
18. Perusal of the evidence reveals that there is a complete chain against the accused-appellant. The circumstantial evidence of the prosecution is credible and cogent to the effect and it leads to take an inference only that the accused- appellant strangulated the deceased-Lajjawati Devi. We are completely in agreement with the findings recorded by the learned Sessions I Judge.
19. In view of the aforesaid reasons, we are of the view that the prosecution has established the guilt beyond reasonable doubt against the accused-appellant. We find that the learned trial Court has rightly convicted and sentenced the appellant Under Section 302/201, I.P.C. to undergo life imprisonment and there is no infirmity in the judgment passed by the trial Court. Hence, the appeal is liable to be dismissed and the conviction is liable to be maintained. The sentence awarded by the trial Court vide judgment and order dated 19 -3 -1990 passed in S.T. No. 35/1987 convicting the accused-appellant Under Section 302/201, I.P.C. is liable to be confirmed."
97. In 1991 (1) SCC 371, in the case of "Smt. Shanti & another vs. State of Haryana", their Lordships of the Hon'ble Supreme Court have laid down the essential conditions for applicability of Section 304-B and have also explained the cruelty under Sections 304-B and 498-A IPC. Their Lordships have held as under:-
"4. Section 304-B IPC reads as follows:
"304-B. Dowry death.-- (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal 60 circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death. Explanation.-- For the purposes of this sub- section, "dowry" shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961. (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life."
This section was inserted by the Dowry Prohibition (Amendment) Act, 1986 with a view to combat the increasing menace of dowry deaths. It lays down that where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before the death of the woman she was subjected to cruelty or harassment by her husband or his relations for or in connection with any demand for dowry, such death shall be called "dowry death" and the husband or relatives shall be deemed to have caused her death and shall be punishable with imprisonment for a minimum of seven years but which may extend to life imprisonment. As per the explanation to the section, the "dowry" for the purposes of this section shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 which defines "dowry" as follows:
"2. Definition of "dowry".-- In this Act, "dowry"
means any property or valuable security given or agreed to be given either directly or indirectly --
(a) by one party to a marriage to the other party to the marriage; or(b) by the parents of
(b) either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies." Keeping in view the object, a new Section 113-B was introduced in the Evidence Act to raise a presumption as to dowry death. It reads as under:
"113-B. Presumption as to dowry death.-- When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the court shall presume that such person had caused the dowry death.
Explanation.-- For the purpose of this section, "dowry death" shall have the same meaning as in Section 304-B of the Indian Penal Code."61
One another provision which is relevant in this context is Section 498-A IPC which reads as under:
"498-A. Husband or relative of husband of a woman subjecting her to cruelty.-- Whoever being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation.-- For the purposes of this section, "cruelty"
means --
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand."
A careful analysis of Section 304-B shows that this section has the following essentials:
"(1) The death of a woman should be caused by burns or bodily injury or otherwise than under normal circumstances;
(2) Such death should have occurred within seven years of her marriage;
(3) She must have been subjected to cruelty or harassment by her husband or any relative of her husband;
(4) Such cruelty or harassment should be for or in connection with demand for dowry."
Section 113-B of the Evidence Act lays down that if soon before the death such woman has been subjected to cruelty or harassment for or in connection with any demand for dowry, then the court shall presume that such person has committed the dowry death. The meaning of "cruelty" for the purposes of these sections has to be gathered from the language as found in Section 498-A and as per that section "cruelty" means "any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life etc. or harassment to coerce her or any other person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand". As per the definition of "dowry" any property or valuable security given or agreed to be given either at or before or any time after the marriage, comes within the meaning of "dowry". With this background of the provisions of law we shall examine the facts in the instant case.
6. Now we shall consider the question as to whether the acquittal of the appellants of the offence punishable under Section 498-A makes any difference. The submission of the learned counsel is that the acquittal under Section 498-A IPC would lead to the effect that the cruelty on the part of the accused is not established. We see no force in this submission. The High Court only held that Section 304-B and Section 498- A IPC are mutually exclusive and that when once the cruelty envisaged in Section 498-A IPC culminates in dowry death of the victim, Section 304-B alone is attracted and in that view of the matter the appellants were acquitted under Section 498-A IPC. It can therefore be seen that the High Court did not hold 62 that the prosecution has not established cruelty on the part of the appellants but on the other hand the High Court considered the entire evidence and held that the element of cruelty which is also an essential of Section 304-B IPC has been established. Therefore the mere acquittal of the appellants under Section 498-A IPC in these circumstances makes no difference for the purpose of this case. However, we want to point out that this view of the High Court is not correct and Sections 304-B and 498-A cannot be held to be mutually exclusive. These provisions deal with two distinct offences. It is true that "cruelty" is a common essential to both the sections and that has to be proved. The Explanation to Section 498-A gives the meaning of "cruelty". In Section 304-B there is no such explanation about the meaning of "cruelty" but having regard to the common background to these offences we have to take that the meaning of "cruelty or harassment" will be the same as we find in the explanation to Section 498-A under which "cruelty" by itself amounts to an offence and is punishable. Under Section 304-B as already noted, it is the "dowry death" that is punishable and such death should have occurred within seven years of the marriage. No such period is mentioned in Section 498-A and the husband or his relative would be liable for subjecting the woman to "cruelty" any time after the marriage. Further it must also be borne in mind that a person charged and acquitted under Section 304-B can be convicted under Section 498-A without charge being there, if such a case is made out. But from the point of view of practice and procedure and to avoid technical defects it is necessary in such cases to frame charges under both the sections and if the case is established they can be convicted under both the sections but no separate sentence need be awarded under Section 498-A in view of the substantive sentence being awarded for the major offence under Section 304-B."
98. In 2013 (7) SCC 256, in the case of "Jasvinder Saini & others vs. State (Government of NCT of Delhi)", their Lordships have explained when charge under Section 302 IPC can be added with Section 304-B IPC. Their Lordships have held as under: -
"14. Be that as it may, the common thread running through both the orders is that this Court had in Rajbir case2 directed the addition of a charge under Section 302 IPC to every case in which the accused are charged with Section 304- B. That was not, in our opinion, the true purport of the order passed by this Court. The direction was not meant to be followed mechanically and without due regard to the nature of the evidence available in the case. All that this Court meant to say was that in a case where a charge alleging dowry death is framed, a charge under Section 302 can also be framed if the evidence otherwise permits. No other meaning could be deduced from the order of this Court.
15. It is common ground that a charge under Section 304-B IPC is not a substitute for a charge of murder punishable under Section 302. As in the case of murder in every case under Section 304-B also there is a death involved. The question whether it is murder punishable under Section 302 IPC or a dowry death punishable under Section 304-B IPC 63 depends upon the fact situation and the evidence in the case. If there is evidence whether direct or circumstantial to prima facie support a charge under Section 302 IPC the trial court can and indeed ought to frame a charge of murder punishable under Section 302 IPC, which would then be the main charge and not an alternative charge as is erroneously assumed in some quarters. If the main charge of murder is not proved against the accused at the trial, the court can look into the evidence to determine whether the alternative charge of dowry death punishable under Section 304-B is established. The ingredients constituting the two offences are different, thereby demanding appreciation of evidence from the perspective relevant to such ingredients. The trial court in that view of the matter acted mechanically for it framed an additional charge under Section 302 IPC without adverting to the evidence adduced in the case and simply on the basis of the direction issued in Rajbir case2. The High Court no doubt made a half- hearted attempt to justify the framing of the charge independent of the directions in Rajbir case2, but it would have been more appropriate to remit the matter back to the trial court for fresh orders rather than lending support to it in the manner done by the High Court."
99. In the present case, there is a defective investigation by not obtaining the report of FSL but the same does not, in any manner, prejudice the appellant.
100. Accordingly, there is no merit in this appeal and the same is hereby dismissed. The appellant is already in jail. He shall serve out the sentence, so awarded to him by learned Trial Court under Sections 302, 304-B IPC and Section 3/4 of Dowry Prohibition Act. However, in view of the judgment rendered by their Lordships of the Hon'ble Supreme Court in 1991 (1) SCC 371, in the case of "Smt. Shanti & another vs. State of Haryana", the appellant was rightly convicted under Sections 304-B and 498-A IPC but he could be sentenced only under Section 304-B IPC and his sentence under Section 498-A is set-aside. The judgment and order dated 21.12.2012, rendered by learned Sessions Judge, District Tehri Garhwal, in Sessions Trial No.10 of 2012 is modified to that extent.
101. According to a survey conducted by the Ministry of Home Affairs, P.S. Ban Phulpura (Nainital) and P.S. Rishikesh (Dehradun) in the State of Uttarakhand ranked at Serial Nos.6 and 8 respectively among India's Ten Best 64 Police Stations. The credit goes to the Senior Superintendents of Police of these districts for placement of these police stations among top Ten on All India basis. It speaks highly for the efficient/professional policing in the State of Uttarakhand.
102. There are only 156 police stations in the State of Uttarakhand. The total population of Uttarakhand is 10,086,292. Thus, there is one police station for around 64665 persons.
103. However, before parting with the judgment, more than a century old practice of Revenue Police System/Policing in vogue in many parts of the State of Uttarakhand is ordered to be abolished within six months from today, in the meantime, the State Government shall put in place the Regular Police System as prevalent in the entire country.
B. The State Government is also directed to open sufficient number of police stations as per Section 2(s) of Cr.P.C. read with Section 7 of the Uttarakhand Police Act, 2007 to strengthen policing by Regular Police within six months from today.
C. The State Government is also directed to ensure that there are two Police Stations in each Circle headed by an Officer-in-charge, who shall not be below the rank of Sub-Inspector.
D. The registration of FIRs, investigation and putting up the challan etc. throughout the State of Uttarakhand shall also be done only by the regular police and not by the Patwaris after six months, strictly, as per the provisions of Cr.P.C.
E. The State Government is also directed to open, if not already opened, police training institutions, as per 65 Section 15 of the Act, 2007 including State Police Training Institutions, Police Training Schools, other Training Institutions, including Police Academy for promoting the service culture among police officers and professional qualifications.
F. The State Government is also directed to establish the Bureau of Police Research and Development for undertaking research into matters relating to police and crimes, as per Section 16 of the Act, 2007, within six months from today, in the entire State of Uttarakhand.
104. LCR be sent back to the trial court.
105. The Court places on record its appreciation for the Director General of Police, Police Officers/Officials for bringing laurels to the State of Uttarkhand.
106. The Court also places on record its appreciation for the valuable assistance rendered by learned Advocates appearing on behalf of the parties.
107. Copy of this judgment be sent to the Chief Secretary, State of Uttarakhand for implementation of the aforesaid directions in letter and spirit.
(Alok Singh, J.) (Rajiv Sharma, J.) NISHANT