IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 1739 of 2001 (Old No. 619 of 1994) Hukam Singh S/o Shri Indra Singh R/o Village Arsh P.O. Saunp, Patti Gongarh District Tehri Garhwal. ……Appellant. Versus State of U.P. .……….Respondent. Shri Lokendra Dobhal, Advocate for the appellant. Shri Tanuj Semwal, A.G.A. for the State. Coram:Hon’ble Prafulla C. Pant, J. Hon’ble B.S. Verma, J. Oral:-Hon’ble Prafulla C. Pant, J. This appeal, preferred under Section 374 of Code of Criminal Procedure, 1973 (herein after referred as Cr.P.C.), is directed against the judgment and order dated 05.03.1994, passed by learned Sessions Judge, Tehri Garhwal, in Sessions Trial No. 10 of 1992, whereby accused/appellant Hukam Singh, has been convicted under Sections 452, 366 and 302 of Indian Penal Code, 1860 (herein after referred as I.P.C.) and is sentenced to rigorous imprisonment for a period of two years (under Section 452 I.P.C.), rigorous imprisonment for a period of three years (under Section 366 I.P.C.), and imprisonment for life under Section 302 I.P.C.). 2 2. Heard learned counsel for the parties and perused the lower court record. 3. Prosecution story in brief is that in the intervening night of 5-6th of September 1991, complainant Bharat Singh (P.W. 1) had gone away from his village in connection with deity worshipping. When he reached at about mid night in his village Aars, he spotted accused/appellant Hukam Singh in a compromising position with his wife Chaita Devi. On being spotted, accused/appellant Hukam Singh stood up. Meanwhile, Bharat Singh (P.W. 1) along with Kalam Singh (P.W. 6), who was sleeping in the verandah, raised alarm, on which Pyar Singh (P.W. 9) and other villagers reached in the house of the complainant. Meanwhile, accused/appellant Hukam Singh had chained the doors from inside to keep the same closed. It is only at about 5:00 a.m., villagers broke open the doors but neither the complainant’s wife Chaita Devi nor accused/appellant Hukam Singh was found inside the house. Prosecution case is that they escaped through the way carved out by breaking the floor. Suspecting that Chaita Devi has been murdered, the complainant Bharat Singh lodged First Information Report (Ext. A-1) with Patti Patwari Bhatgaon. (In the interior hills of Uttarakhand revenue officials are given police powers under U.P. Government Notification No. 494/VIII-418-16, dated 07.03.1916). Patwari, on the basis of First Information Report, lodged by the complainant, prepared check report (Ext. A-10) and registered 3 crime No. 01 of 1991, against accused Hukam Singh in respect of offences punishable under Sections 457, 498, 376, 363, 302 and 201 I.P.C. On the next day i.e. on 07.09.1991, dead body of Chaita Devi was found near Balganga river within the limits of Village Kothiyara. On receiving information, the Patwari took the dead body in his possession and got prepared inquest report (Ext. A-6), sketch of the dead body (Ext. A-7), letter to Chief Medical Officer (Ext. A-8), requesting for post mortem examination, sample seal (Ext. A-9) and other necessary papers. Dead body was sent for post mortem examination in a sealed cover. P.W. 5 Dr. Narendra Jha along with Dr. Y.S. Rana, conducted post mortem examination on the dead body of deceased Chaita Devi on 08.09.1991 at 4:00 p.m. During post mortem examination, frothy water mixed with blood was found coming out from the mouth of the deceased. The flesh was found eaten up on left forearm upto elbow exposing both bones. Breasts were partially eaten up. Flesh from right thigh was also found eaten. On internal examination, it was found that lungs were swollen and water started coming out on cutting the lungs. In the stomach, water was found present. The team of two medical officers, who conducted post mortem examination opined that deceased had died due to asphyxia as a result of drowning in fresh water (river). Viscera was preserved. After post mortem examination, medical officers prepared autopsy report (Ext. A-2). P.W. 8 Kulanand Joshi, the then Patwari, Bhatgaon, investigated the crime, and on completion of the 4 investigation, submitted charge sheet against accused/appellant Hukam Singh. 4. The Magistrate, on receipt of the charge sheet, after giving necessary copies to the accused, as required under Section 207 of Cr.P.C., committed the case to the Court of Sessions, for trial. Learned Sessions Judge, Tehri Garhwal, to whom the case was committed, after hearing the parties, framed charge of offences punishable under Sections 457, 497, 366, 302 I.P.C. and in alternative under Section 306 I.P.C. The accused/appellant Hukam Singh pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1 Bharat Singh, complainant (declared hostile), P.W. 2 Nathi Singh, son of Rai Chandra Singh (declared hostile), P.W. 3 Nathi Singh, son of Bakhtawar Singh (declared hostile), P.W. 4 Chatar Singh (declared hostile), P.W. 5 Dr. Narendra Jha (who conducted post mortem examination), P.W. 6 Kalam Singh (declared hostile), P.W. 7 Balram, Patwari (who recorded entry in the general diary at the time Bharat Singh lodged the First Information Report), P.W. 8 Kulanand Joshi, Patwari (who investigated the crime) and P.W. 9 Pyar Singh. The oral and documentary evidence was put to the accused under Section 313 Cr.P.C. in reply to which he alleged that the prosecution evidence as against him is false and he was falsely implicated due to enmity. However, no evidence in defence was adduced. After hearing the parties, the trial court found accused Hukam Singh guilty of charge of offences punishable 5 under Sections 452, 366 and 302 I.P.C. The trial court heard the parties on sentence, and sentenced the convict to rigorous imprisonment for a period of two years under Section 452 I.P.C., rigorous imprisonment for a period of three years under Section 366 I.P.C. and imprisonment for life under Section 302 I.P.C. Aggrieved by said judgment and order dated 05.03.1994, convict Hukam Singh filed this appeal before Allahabad High Court on 23.04.1994. The appeal was admitted by Allahabad High Court on 25.10.1994. The appeal is received by this Court under Section 35 of U.P. Reorganisation Act, 2000 (Central Act No. 29 of 2000), for its disposal. 5. Before further discussion, we think it just and proper to mention here the observations made by the team of doctors at the time of post mortem examination on the body of deceased Chaita Devi (wife of the complainant). They prepared autopsy report (Ext. A-2). Said report is proved by one of the team of doctors, P.W. 5 Dr. Narendra Jha. The team of doctors in the autopsy report has observed that frothy water mixed with blood was coming from the mouth of the deceased on 08.01.1991, at 4:00 p.m. when the post mortem examination was conducted. Doctor also observed that the dead body was 2-3 days old. It is also mentioned in the report that flesh eaten up on the left forearm up to elbow exposing both bones. Breasts were partially found eaten up. On internal examination, medical officers found that lungs of the deceased were swollen and water was 6 present, which started coming out on cutting the lungs. The team of doctors also found that the stomach was also filled with water. The medical officers opined that the deceased had died due to asphyxia on account of drowning in fresh water (river). However, viscera were also preserved by them. From the evidence of P.W. 5 Dr. Narendra Jha, read with the autopsy report (Ext. A-2) it is proved on the record that Chaita Devi (wife of Bharat Singh- complainant) died a homicidal death in September 1991. Now this Court has to examine whether accused Hukam Singh has committed murder of Chaita Devi. It is also to be examined whether accused/appellant Hukam Singh trespassed in the house of the complainant with intention to commit an offence, and whether he abducted the deceased for illicit intercourse. 6. P.W. 1 Bharat Singh, complainant has lodged the First Information Report (Ext. A-1). In said report it is alleged that in the intervening night of 5-6th of September 1991, complainant saw in the light of lamp that accused Hukam Singh was in a compromising position with his wife inside his house. And when the house was broken in the morning the two were missing from the house, and that he suspected that his wife has been killed. But when complainant (P.W. 1) was examined on oath before the trial court he did not support the prosecution story. He only admitted that Chaita Devi was his wife and she has died. As to the 7 incident of 5-6th of September 1991, the witness states that he did see Hukam Singh (accused/appellant) sitting with his wife but he did not see them in a compromising position. This witness was got declared hostile by the prosecution. He did not say in his statement that the accused Hukam Singh and Chaita Devi left the house and she might have been murdered by the accused Hukam Singh. However, he admitted having lodged First Information Report (Ext. A-1). From his statement, as mentioned above, it is clear that he did not support the prosecution story. 7. P.W. 2 Nathi Singh (son of Rai Chandra Singh) has simply stated that he came to know that Chaita Devi, wife of Bharat Singh was missing from her house but he did not visit the house of the complainant. This witness (P.W. 2) was also got declared hostile, as he did not support the prosecution story. 8. P.W. 3 Nathi Singh, son of Bakhtawar Singh, also did not support the prosecution story, as he stated in his examination in chief that he never saw accused Hukam Singh with Chaita Devi. He further states that he did not go to the house of Bharat Singh. He too was declared hostile as he too did not support the prosecution story. 9. P.W. 4 Chatar Singh, like the above two witnesses, has not supported the prosecution story. This witness has gone to the extent that he does not 8 know complainant or his wife. This witness was also got declared hostile by the prosecution. 10. P.W. 6 Kalam Singh has gone a step further to the statement of P.W. 4 Chatar Singh, as he states that he does not know whether Bharat Singh belongs to India or ‘Vilayat’ England. This witness is also cross examined by District Government Counsel, as he did not support the prosecution story. 11. The only witness, who supported the prosecution is P.W. 9 Pyar Singh. Though this witness has stated that in the intervening night of 5-6th September 1991, on a call being raised, he came to the house of Bharat Singh and found that the doors were closed from inside. The witness further states that a lamp was lit inside the house of the complainant Bharat Singh. When he (P.W. 9) reached at the spot, he saw Bharat Singh telling the accused Hukam Singh that he would lodge report and Hukam Singh retorting by saying that at the most he (complainant) would accept Rs. 10,000/- and nothing more. The witness further states that with the help of SABBAL (heavy iron rod meant for digging earth), the doors were broken but meanwhile Hukam Singh and Chaita Devi had left the house of Bharat Singh. This witness does not throw any light if accused Hukam Singh has committed murder of Chaita Devi. Prosecution story relating to the fact that accused Hukam Singh was in a compromising position with Chaita Devi (wife of the complainant) appears to be doubtful, as it would not be a natural conduct on the part of the accused that 9 with a lamp lit inside the house, he would indulge in an activity when the husband of the victim was expected to come at any time in the house, that too with doors or windows open. Apart from this, as far as the commission of murder by accused Hukam Singh of deceased Chaita Devi is concerned, he had no motive to kill Chaita Devi. It cannot be ruled out if she (Chaita Devi) committed suicide by jumping in the river. Not only this, the statement that accused was in a compromising position with Chaita Devi at about midnight (00:00 hours) and P.W. 9 Pyar Singh, broke open the house is also unnatural. If the complainant Bharat Singh and P.W. 9 Pyar Singh, had seen accused and deceased together inside the house of the complainant, they will not wait for 5 hours to break open the house. 12. Also, the First Information Report (Ext. A-1) appears to be ante time, as there was no reason to believe on the part of the complainant that his wife has been killed on 06.09.1991. The dead body of Chaita Devi, as apparent from the inquest report (Ext. A-6) was found near the river on 07.09.1991. None of the witnesses of fact except P.W. 9 Pyar Singh, has supported the prosecution story against accused/appellant Hukam Singh. The presence of Pyar Singh (P.W. 9) in the house of complainant in odd hours, cannot be said to be a natural presence. In these circumstances, we find that the trial court has wrongly appreciated the evidence on record. In our considered opinion, after going through the entire 10 record, we do not find that the prosecution has proved any of the charges punishable under Sections 452, 366 or 302 I.P.C. against accused/appellant Hukam Singh. 13. For the reasons, as discussed above, this appeal deserves to be allowed. The same is allowed. The impugned judgment and order dated 05.03.1994, passed by learned Sessions Judge, Tehri Garhwal, in Sessions Trial No. 10 of 1992, convicting the accused Hukam Singh under Sections 452, 366 and 302 I.P.C. and sentencing him on said counts, is set aside. Accused/appellant Hukam Singh is acquitted of all the charges. He is on bail. He need not surrender. The sureties are discharged. Registry is directed to send back the lower court record. (B.S. Verma, J.) (Prafulla C. Pant, J.) Dt:04.05.2009 Sweta 11 12 13 14 15 16