IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 673 of 2001. Date of decision:14.6.2011. __________________________________________________________ State of H.P. .....Appellant. Vs. Vijay Kumar and another. .....Respondents. Coram The Hon'ble Mr. Justice R.B. Misra, J. The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? For the appellant : Mr. R.K. Sharma, Sr. Additional Advocate General. For the respondent: Mr. Himat Negi, Advocate vice Mr. Ajay Sharma,Adv. Justice R.B. Misra, J. (Oral) The present criminal appeal has come up for consideration after grant of leave to appeal, under Section 378 (3) Cr.P.C., in reference to the impugned judgment, dated 9.7.2001, passed by the Sessions Judge, Una, acquitting the respondents-accused for their alleged involvement for the offences, under Sections 302, 498-A IPC read with Section 34 IPC in reference to FIR No. 214/1998 dated 21.12.1998. 2. The prosecution case is that Smt. Santosh Kumari, daughter of Daya Ram (PW-1) was married to accused-Vijay Kumar in July, 1996. One son was born out of the wedlock. Initially deceased was kept nicely for about one year but thereafter, she started reporting to her relatives that accused persons do not provide articles of daily necessities and used to beat her. However, she was always pacified and sent to her parents-in-law’s house, so that there is no disturbance in the married life of the deceased. It was reported that on December 21, 1998 at about 9.00 a.m. Balbir Singh (PW-4) of Chakguru told Daya Ram that Smt. 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 Santosh Kumari had hanged herself during the previous night. So Daya Ram reported the matter to the village Panchayat. The dead body of Smt. Santosh Kumari was lying on the floor covered with a quilt. FIR Ext. PM was recorded by HC Ramesh Chand (PW-14) vide endorsement Ext. PA/1 and after investigation, respondents-accused were charged for the aforesaid offences. 3. In order to prove its case, prosecution examined as many as seventeen witnesses, whereas, the accused through his statement under Section 313 Cr.P.C. denied the prosecution case and examined DW-1, Raj Pal as defence witness. 4. PW-1 Daya Ram the father of the deceased, in his endeavour to support the prosecution case has reiterated the prosecution version. It has been stated by PW-1 that accused Vijay Kumar and his mother Ram Asri used to harass the deceased and were not providing clothes, soap and other articles of daily need to her. As per testimony of PW-1, deceased used to tell that accused Vijay Kumar and his mother used to beat her, so much so, accused Vijay Kumar was allegedly having illicit relations with some other lady. PW-1 came to know from Balbir Singh (PW-4) that his daughter is no more. PW-1 went to Pradhan Krishna Devi and told her and also the Up-Pradhan about it. Thereafter, they went to the house of parents-in-law of the deceased, where, PW-1 noticed the dead body of deceased lying on the floor and quilt was laid on her. PW-1 also noticed blue marks on the neck of Smt. Santosh Kumari. On seeing, PW-1 came to know that she was killed and then hanged. PW-1 has stated in his cross-examination that Smt. Santosh Kumari had passed +2 examination and was hale and hearty and she was mentally alert. PW-1 had neither gone to the house of accused to enquire why 3 beatings were given to the deceased by the accused nor had reported to anyone regarding giving of beatings by the accused. 5. PW-2 Dhian Chand the younger brother of the deceased in his endeavour to support the prosecution case has stated that accused Vijay Kumar was having illicit relations with some other lady and when Smt. Santosh Kumari used to object it, the accused persons used to beat her. As per testimony of PW-2, she was being harassed on small house- hold matters mainly because of illicit relations of accused with some other lady. On 21.12.1998, PW-2 came to know about the death of Smt. Santosh Kumari and when PW-2 went to the house of parents-in-law of the deceased, dead body of Smt. Santosh Kumari was lying on the floor covered with quilt and on removing the same, he noticed blue marks on her neck. PW-2 in his cross-examination has, however, stated that deceased’s sister never told the name of the lady with whom accused Vijay Kumar was having illicit relations. PW-2 in his cross-examination has further stated that the lady was working with the accused in the same school and was having illicit relations with him. As per testimony of PW- 2, his sister was well built and healthy. 6. PW-3 Tarsem Lal has stated that deceased was his sister- in-law and 5-6 months prior to her death when deceased came to his house, she told that accused used to quarrel with her as accused-Vijay Kumar was having illicit relations with some other lady. PW-3 has stated that on 20.12.1998 at about 10.00 p.m. Vijay Kumar accused rang up PW-3 asking him to reach his house with his wife and when he went to the house of accused, he observed deceased lying on the bed covered with quilt. There were blue signs of throttling on the neck of deceased Smt. Santosh Kumari. On asking accused-Vijay Kumar told that she 4 hanged herself on the upper storey. On asking that height of roof is not sufficient, on that no reply was given by the accused. As per testimony of PW-3, he had advanced Rs. 6000/- to Vijay Kumar along with gas connection which accused did not return to him and Rs. 5000/- borrowed by him from in-laws of PW-3 were also not returned to them. However, as stated in cross-examination by PW-3, he did not go to the upper storey of the house and name of lady with whom Vijay Kumar was having illicit relations was not told by Smt. Santosh Kumari to PW-3. 7. PW-4 Balbir Singh, who came to know about the death of deceased, apprised the father-in-law of accused Vijay Kumar that Smt. Santosh Kumari had died. 8. PW-5 Smt. Krishna Devi, Pradhan of Gram Panchayat, Upper Basal in her endeavour to support the prosecution case has stated that the deceased had told that accused was having illicit relations with a teacher in his school. PW-5 has, however, observed blue marks on the neck of deceased Santosh Kumari, who was lying on the floor and on enquiry accused-Vijay Kumar told that he committed mistake but thereafter, he did not reply satisfactorily and then the matter was reported to the police. PW-4 has stated that there was no evidence of hanging nor hanging was possible because of low height of wooden beam of the room from the floor. Total height at that place was 6 to 6 ½ feet only and if a person stands on the chair placed there, the person had to bend the head because of less height. The articles including chair in that room was full of dust and two pieces of Dupatta were lying under the chair and accused told that he cut the Dupatta with sickle but there was no evidence of tying of Dupatta with wooden beam. PW-5 enquired the accused that if Dupatta was cut, the dead body must have fallen with force but accused replied 5 that he caught the dead body in his lap which explanation was not satisfactory. PW-5 has stated in cross-examination that when he told the police that PW-5 had asked the accused that he killed Smt. Santosh Kumari, on that the accused told that he committed mistake. However, when confronted with such statement, it was not so recorded. PW-5 has stated in cross-examination that he did not measure the height of that place himself. Voluntarily stated that the police came and measured the height. PW-5 was not remembering specifically the date and month when Daya Ram told regarding torture of his daughter. 9. PW-6 Sanjeev Kumar had taken photographs of the dead body. PW-7 Daulat Ram, Up-Pradhan of village Basal, stated that on enquiry accused told that deceased died by committing suicide by hanging. PW-7 had observed that a chair was lying in the Kotha (upper storey) with one small plank on the seat of that chair. Two pieces of Dupatta were lying under the chair. The accused showed him the place of bamboo rafter on the roof of that Kotha from where Santosh Kumari allegedly hanged herself. There was no sign of tying of Dupatta etc on the bamboo and there was dust on the bamboo and webs of spider were present there. There was also dust on the chair. Accused told PW-7 that he cut Dupatta to bring dead body down but both the pieces of Dupatta were lying beneath the chair. PW-7 has stated in cross-examination that suicide was not possible and asked the accused to tell the truth, on that accused Vijay Kumar told PW-7 that he committed mistake and requested to save him. 10. PW-8 Dr. Praveen Bhardwaj has examined the dead body and noticed the following injuries:- “(1) 2 cm x 1 cm x skin deep dark coloured abrasion on right side of chin. 6 Ligature mark: Neck circumference was 13.5”. No ligature material found on the body. There was dark brown, dry, hard ligature mark prominent on right side of neck running obliquely between chin and thyroid cartilage. It was 2 cm wide below the right mastoid process and tapers to 1 cm in front of neck to the thyroid cartilage. On left side ligature mark was not very dark and extends to just below the angle of mandible. There was dark bruise 2 cm x 2 cm on left side of neck just below the angle of mandible. Ligature mark is absent on back of neck. On right side the ligature mark tapers from mastoid process towards back of neck. On dissection the skin below the ligature mark there were small hemorrhages in underlying layer of skin. There was area of pyperemia around the edges of the ligature mark. Here was hyperemia of trachea and epiglottis. The skin below the ligature mark reveals dry and glistering white band of subareolar tissue. Eyes were congested. There was fracture of hyoid bone at the junction of greater and lesser cornu bilaterally.” Dr. Vipin Chander Sharma also expressed the same opinion. PW-8 has also stated that if death is due to body weight, it is by hanging, but if it is due to external force or pressure, it is strangulation. PW-8 has further stated that injury marks on the neck of the deceased are possible with Dupatta hanging, however, death of deceased was opined by asphyxia due to strangulation/throttling and then hanging. 11. PW-9 Birbal on an enquiry from accused Vijay Kumar was told that his wife had hanged herself with rope and doctor was not available for medical treatment. PW-10 Mahesh Kumar prepared the site plan, however, could not prove on his skill the height of the roof of the room at the spot and the actual height from which the deceased had hanged herself. 7 12. PW-11 Kewal Singh HC helped in bringing viscera to the doctor. PW-12 Mehar Singh MHC brought sealed envelope and sent it for examination through PW-13 Mohinder Kumar Constable. PW-14 Ramesh Chand HC supported the prosecution case. PW-10 Mahesh Kumar has stated that height from inside the Kotha is five feet and the height from chair to strangulation point is three feet. 13. PW-15 Joginder Pal who was told on the night of 28.12.1998 that Vijay Kumar’s wife was ill and when he went to the house of accused, deceased was lying on the cot in the room. PW-15, however, has observed swelling on the neck and on enquiry, PW-15 was told by accused Vijay Kumar that his wife had hanged herself on the Kotha of the house. 14. PW-16 Kailash Walia SI has recorded the statement of Birbal. PW-17 Sukh Lal prepared site plan of the recovered articles on the spot and got post mortem done. PW-17 has, however, stated in cross-examination that total height of attic from the floor was 7½ feet. PW-17 has, however, indicated that he came to know that accused Vijay Kumar had illicit relation with a private school teacher, however, he did not investigate that aspect. 15. We have gone through the contents of the prosecution witnesses and medical opinion on record. As per doctors’ opinion, the deceased had died by asphyxia by strangulation and injury marks were noticed on the neck of deceased possibly because of Dupatta hanging, however, no endeavour was made on the part of the prosecution to examine and ascertain the ligature mark on Dupatta, if at all deceased had died due to strangulation. On scrutiny of prosecution witnesses including PW-1 Daya Ram, PW-2 Dhian Chand and PW-3 Tarsem Lal, we 8 notice all are interested and related witnesses, their testimony is not in coherency regarding beating and illicit relations of accused-Vijay Kumar with some other lady, so much so, the name of such lady was not even narrated to any one. In view of testimony of PW-1, PW-2 and PW-3, the place where alleged suicide by hanging took place was not possible but no specific complaint was ever made by the deceased about accused- Vijay Kumar and Ram Asri. No specific complaint of beating or maltreatment was reported to Pradhan, Up-Pradhan or Police or relatives except oral complaint made to PW-1, PW-2 and PW-3. In view of the testimony of PW-1, PW-2 and PW-3 that main cause of harassment or beatings by accused-Vijay Kumar was the cause of showing anguish by the deceased and for having illicit relations of accused-Vijay Kumar with some other lady, however, prosecution has failed to prove that aspect so much so PW-17 I.O. also has not endeavoured to prove that aspect. No any specific instance was narrated regarding maltreatment or beatings by Ram Asri. Deceased being hale and hearty, well built and healthy, was not expected to surrender to the assault of Vijay Kumar surprisingly at the time of incident, no independent witness has observed beatings by the accused persons. 16. Only on the basis of extra judicial confession made before PW-1, PW-2 and PW-3, accused Vijay Kumar had only indicated that he had committed the mistake and thereafter, he did not give satisfactory reply. Such aspect could not be sufficient to prove the guilt of the accused persons in respect of serious offence of Section 302 IPC though the deceased was married in the year 1996 and had died in 1998 i.e. within two years after her marriage but prosecution has not been able to prove its case beyond reasonable doubt and has also not been able to 9 bring home the guilt to the accused. Merely on unproved circumstantial evidence and insufficient extra judicial confession, the accused- respondents cannot be held guilty of the aforesaid offences. We are of the considered view that there is no scope of any interference in the judgment of the trial Court, therefore, the appeal being devoid of any merit, is dismissed. Bail bonds furnished by the accused persons stand discharged. (R.B. Misra) Judge (V.K. Sharma) Judge June 14, 2011 (cr)