1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 28 of 1997 Decided on July 23, 2010 __________________________________________________________ State of H.P. …Appellant. Versus Saiflo Bibi & Anr. ...Respondent. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge. ¹Whether approved for reporting? Yes For the appellant: Mr.Rajinder Dogra, Additional Advocate General, with Mr. Anil Jaswal, Deputy Advocate General. For the respondents: Mr. Ashok Chaudhary and Mr. Sandeep Chauhan, Advocates. Justice R.B. Misra,J. (Oral) The present Criminal Appeal has come up for adjudication after the grant of leave to appeal under Section 378 (3) of the Code of criminal Procedure in reference to judgment dated 8.8.1996, passed by Learned Sessions Judge, Kangra at Dharamshala,H.P., in Sessions Case No. 22-J/VII-1996, under Section 302 read with Section 34 of the Indian Penal Code, acquitting the alleged accused/respondents. 2. The prosecution story is that Darshan Ali was husband of Saiflo Bibi and Hasno Bibi was mother-in-law of Darshan Ali (deceased). On 3.7.1995, at about 6.00 P.M., the deceased was with his mother-in-law Hasno Bibi and wife Saiflo Bibi, while sitting on a cot and talking to them. They were talking loudly. However, an information was given by Hasno 2 Bibi to Nardev Singh that her son-in-law died because of snake- bite. She also went to Ashok Kumar, Vice President of Panchayat, on 4.7.1995, and told him that her son-in-law, Darshan Ali, had died because of hanging. On this, a telephonic information was given by Ashok Kumar to the Police Station Jawali. The police came to the spot and conducted the inquest on the dead body of the deceased and sent the same for postmortem. Both accused Saiflo Bibi and Hasno Bibi were arrested on 10.7.1995. 3. The accused were charged for the offence under Section 302 read with Section 34 of the Indian Penal Code and the case was committed to Sessions Court. In order to prove its case, the prosecution has examined as many as 12 prosecution witnesses. Whereas, the accused through their statements under Section 313 of Cr.P.C., have denied the prosecution case. 4. PW.1 Dr. Sanjay Kumar conducted the postmortem on the body of deceased Darshan Ali and gave the following observations:- “The body was well built. Rigour mortis present in lower limbs only. Postmortem staining positive (present) in thighs, legs and feet. There was greenish discoloration of face chest and abdomen. There is blister formation all over the body. Eyes congested and protruded. Tongue protruded. Face is swollen. There is an area of dark brown colour extending from left shoulder to chest 7” x 3”. There is a area of 3” x 3” on back in between two scapulae. Ligature mark: A transverse mark .8” dark brown coloured mark extending from right side of the neck encircling anteriorly towards left. Widest in the center about 1”. Ligature mark is at the level of thyroid cartilage. There is no mark on the back of the neck. 3 Base of the mark is soft. On dissection, subcutaneous tissue is ecchymosed. Muscles are ruptured. Thyroid cartilages fractured. Thorax: Walls, ribs and cartilages: Greenish stains present all over the chest. Sub cutaneous tissues emphysematous. Larynx and trachea: Thyroid cartilages fractured. Right lung: Emphysematous bullae present and same is the condition with left lung. Abdomen: Walls: Abdomen is distended, greenish discoloration, blister formation on opening abdomen lot of gases escaped. Stomach and its contents: Congested, contained small amount of liquid material. Small and large intestine and their contents: Congested and distended. Empty. Liver: Studded with blisters. Kidney: Congested. Bladder: Empty. Organs of generation, External and internal: Scrotum and penis swollen. On dissection left testes is contused. Right is flabby. 5. As per opinion of PW.1, the cause of death of deceased was by way of strangulation. PW.1 has also opined that the testicle of deceased had also been contused which could be as a result of pressing by the hands or by hit. PW.1 has further deposed that the ligature mark can be caused with rope Ex.P1 and has also indicated that ligature mark cannot be caused with bed sheet Ex.P5. PW.1 had also indicated that testicles are vital part of the body and sometimes the pressing of the same can result in the death of a person. In cross- examination, PW.1 has admitted that the injuries found on the neck of the deceased were antemortem. He has also admitted that the mode of hanging is dependent in the manner on which 4 the noose is applied and also dependent whether the hanging is with or without drop. If the hanging is without a drop, the death could be occurred due to asphyxia. 6. PW.2 Smt. Billo Bibi has stated that deceased was her son and further stated that Saiflo Bibi, wife of the deceased, was not of a good character. PW.2 has further stated that her son was unemployed, as such, he used to reside in the house of his mother-in-law. 7. PW.3 Jagdish Chander gave a disclosure statement Ex. PW.3/A, in pursuance to which rope Ex. P1, with which cattle is tethered, was taken into possession vide memo Ex.PW.3/B. According to PW.3, the family of Nawab Din used to disclose him that Saiflo Bibi used to quarrel with Darshan Ali and has admitted that rope Ex.P1 is usually used by the farmers to tether the cattle. However, PW.3 has denied that no statement of Saiflo Bibi was recorded and nothing was recovered from her. 8. PW.4 Ashok Kumar deposed that on 4.7.1995, Hasno Bibi came to his house and told that her son-in-law hanged himself. Accordingly, he reported the matter to the police. However, PW.4 has declared hostile and has subsequently stated that Saiflo Bibi did not make any statement in his presence before the police. 9. PW.5 Nardev Singh deposed that his shop is about 200 yards away from the house of the accused. PW.5 has further stated that Darshan Ali (deceased) used to live in the house of his mother-in-law. He has further stated that Saiflo Bibi came to his house in the morning and told him that her husband died of 5 a snake-bite. PW.5 has further deposed that Hasno Bibi also came to him and told that deceased had gone to collect the fuel wood in the forest and died due to snake bite, as such, he advised to report the matter to the police. PW.5 has further stated that he did not see any quarrel between Darshan Ali (deceased) and Saiflo Bibi. This witness was also declared hostile. As per version of PW.5, deceased was sitting with Saiflo Bibi and Hasno Bibi on a cot on 3.7.1995 at about 6.00 to 6.30 P.M. 10. PW.6 Swarup Singh took the photographs of dead body Ex. PW.6/1 to Ex. PW.6/C, negatives whereof are Ex. PW.6/7 to Ex.PW.6/12. 11. PW.7 ASI Hari Ram has stated that on 4.7.1995, he received a telephonic message from Ashok Kumar, Up-Pradhan, that Darshan Ali died by way of hanging. PW.7 recorded the message in Rojnamcha Ex.PW.7/A and thereafter, he went to the spot. During the investigation, it was disclosed by Saiflo Bibi that on search in the forest, where deceased had gone to collect the fuel wood, his dead body was found hanging with a tree. 12. PW.8 Amin Chand deposed that on 10.7.1995, ASI deposited with him one sealed parcel containing rope. 13. PW.9 Rajinder Singh carried the case property on 12.7.1995 and deposited the same in FSL Bharari on 13.7.1995. 14. PW.10 Kuldip Singh, Patwari, has stated that he prepared the Tatima Ex. PW.10/A, Jamabandi Ex. PW.10/A and Khasra Girdauri Ex.PW.10/C at the instance of police. 15. PW.11 Des Raj, J.E. (HP. PWD) Jawali, stated that he 6 prepared the spot map of the house of accused Ex. PW.11/A. 16. PW.12 Sub Inspector Nathu Ram investigated the case and has recorded the FIR Ex. PW.12/A on the statement of Nawab Din i.e. father of the deceased. Accordingly, PW.12 visited the spot and prepared site plan Ex. PW.12/B and arrested the accused on 10.7.1995. PW.12 has also recorded the statement of accused Saiflo Bibi under Section 27 of the Evidence Act. In pursuance to said statement, rope Ex. P1 was recovered from the cow-shed. In cross-examination, PW.12 has also stated that he visited the site where the body was found allegedly hanging. He measured the height of the tree but he did not mention in the map Ex.PW.12/B. 17. Accused Saiflo Bibi was examined under Section 313 of Cr.P.C., where she admitted that deceased was residing in her parental house. She has further stated that no quarrel took place between her and the deceased, and her father-in-law as well as mother-in-law both were expecting the earnings of Darshan Ali (deceased), who were residing at Chamba and many times he was forced to leave the house of her mother Hasno Bibi. She has further stated that whenever she visited her in-laws' house, she was given a taunt that she has swallowed the entire amount of his earnings and has also threatened that her husband will be dis-inherited with the ancestral property. From such date, her husband was very upset, and on the alleged date, the deceased took little bit liquor and went to the forest for collecting fuel wood, despite her resistance. Thereafter, he did not return to the house, on search, the dead body of deceased 7 was found hanging on the tree. However, his dead body was brought home and made to lie on a cot. Thereafter, Ashok Kumar Up Pradhan was informed about the incident, who later on informed the police. 18. PW.2 Billo Bibi simply deposed that accused Saiflo Bibi was not of a good character, but there is no evidence on record. Testimony of PW.2 Billo Bibi cannot be believed. PW.3 Jagdish Chand himself admitted that no written complaint was ever made by Nawab Din, father of the deceased or Billo Bibi, mother of deceased, before him about the conduct of Saiflo Bibi and Hasno Bibi. PW.5 Nardev Singh has simply deposed that Hasno Bibi came to his house in the morning and deposed that Darshan Ali died because of snake bite. 19. Two contradictory version narrated by the informant/complainant to the prosecution witnesses for the cause of death of victim creates doubt in the prosecution case. PW.4 Ashok Kumar, however, has deposed that on 4.7.1995, Hasno Bibi came to his house and told that her son-in-law had hanged himself. Accused Hasno Bibi is said to have given information to different persons, e.g. PW.5 Nardev Singh and PW.4 Ashok Kumar, in a different way narrating the cause of death of the deceased which cannot be believed that if Hasno Bibi could have given the information to PW.5 Nardev Singh and PW.4 Ashok Kumar that the deceased was found hanging in the forest area with the tree, why such information has not been given subsequently to PW.4, PW.5 and to the police also, and in the peculiar circumstances hanging dead body of the deceased 8 was brought to the place of Hasno Bibi and was kept on a cot. The features of the dead body were in consonance to the opinion of PW.1 Dr. Sanjay Kumar, that the deceased died by way of strangulation and the ligature marks were also present on the neck of the deceased, which could be caused by hanging. The present case is of circumstantial evidence. There is no direct evidence. No body has seen the incident or the manner how the injuries were inflicted on the body of the deceased. In view of the statement of accused Saiflo Bibi, made under Section 313 of Cr.P.C., probably a situation might have arisen in view of the warning given by the father of the deceased that he would dis- inherit him from the ancestral property, due to which, the victim/deceased was upset and could have hanged himself. However, the accused cannot be said to have created the cause of death of deceased by strangulation, as the cloth/rope could not be said to be actually used for strangulation, and also it appears not probable that wife and the mother-in-law shall kill the deceased by strangulation in the parental house. The prosecution has to stand on the strength of its own legs and credibility of witness. The prosecution is not supposed to prove its case relying on the broken chain of events and steps. 20. In view of testimony of PW.5, nothing was heard about the conduct of accused Saiflo Bibi. Nothing was also ever heard that Saiflo Bibi and Hasno Bibi have quarrelled with the deceased, as in view of the testimony of PW.5 Nardev Singh, on 3.7.1995, at about 6.00 or 6.30 P.M., Darshan Ali (deceased), Saiflo Bibi and Hasno Bibi were sitting on a cot and they were 9 talking. The chain of incident and steps in respect of the death of deceased/Darshan Ali, in the house of his mother-in-law, was not made complete by the prosecution by linking the circumstantial evidence with the conduct of accused Saiflo Bibi, and injuries found on the body of deceased with the alleged strangulation, as such, the prosecution case becomes doubtful. 21. In our considered view, the prosecution has failed to bring home the guilt to the accused and the learned Trial Court has carefully analyzed the prosecution witnesses and has rightly arrived at a conclusion that the prosecution has failed to prove its case beyond reasonable doubts. In our considered view, there is no scope of interference in the findings given by learned Sessions Judge. In view of the aforesaid facts and circumstances, the present criminal appeal, being devoid of any merit, is dismissed. 22. The bail bonds furnished by the accused/respondents are hereby discharged. (R.B. Misra) Judge July 23, 2010 (V.K. Sharma) (Purohit) Judge