IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL (Chapter VIII, Rule 32(2) (b) Description of Case Criminal Appeal No. 616 of 2001 (Old No. 1981 of 1989) Date of decision : 14th June, 2007 A.F.R. (Approved for Reporting) ____________________________ Not approved for reporting Date : 14.06.2007 Initials of Judge Note : Bench Reader will attach this at the top of the first page of the judgment when it is put up before the Judge for signature. HIGH COURT OF UTTARAKHAND, AT NAINITAL Criminal Appeal No. 616 of 2001 (Old No. 1981 of 1989) Shakti Singh S/o Sri Kanhya Singh R/o Village Nalai, P.S. Kalgikhal Patti Patwal Syun, Pauri Garhwal …Appellant Versus State … Respondent Mr. Rajendra Kotiyal, Advocate for the appellant. Mr. G.S. Sandhu, learned Govt. Advocate for the respondent-State. Coram: Hon’ble Rajeev Gupta, C.J. Hon’ble J. C. S. Rawat, J. Per Hon’ble J.C.S. Rawat, J. 1. This appeal has been directed against the judgment and order dated 28.09.1989, passed by learned Sessions Judge, Pauri Garhwal in Sessions Trial No. 3 of 1988, whereby the appellant Shakti Singh has been convicted u/s 302 Indian Panel Code, 1860; (hereinafter as I.P.C.) & u/s 304-B I.P.C. and sentenced to imprisonment for life and seven years respectively. 2. The prosecution story, in brief, is that the father of the deceased had died in the year 1965. Deceased Basanti Devi daughter of Smt. Bindu Devi was married with the appellant Shakti Singh on 03-02-1984. The appellant Shakti Singh was employed in the Indian Army. Smt. Bhundra Devi was mother-in-law of the deceased; Smt. Dhanna Devi and Smt. Vidhata Devi were sisters-in-law (Bhabhi) of the appellant Shakti Singh and Smt. Sulochana was sister of the appellant Shakti Singh. On 22.10.1986 at about 10:00 a.m., two persons of Village Nalai came to the mother of the deceased and informed her that her daughter Smt. Basanti Devi has committed suicide by hanging herself from a tree. After receiving the information about the death of the deceased, Smt. Bindu Devi alongwith her son Mohan Singh reached at village Nalai where they found Basanti Devi dead. It was also found by the Smt. Bindu Devi that there were burn as well as other bodily injuries on the person of the deceased. The Gram Pradhan had already informed Patwari vide Ex.Ka.3 that Smt. Basanti Devi has committed suicide by hanging herself from a Khinna tree. Pursuant to said report lodged by the Gram Pradhan about the suicide of the deceased, the patti patwari Rajendra Singh visited the spot, prepared the site plan and panchayatnama. He also prepared the necessary papers and sent the dead body for post mortem on 22.10.1986. The post mortem was conducted in District Hospital Pauri by Dr. Rajeev Hatwal. The Patwari did not lodge any report against the accused so the mother of the deceased submitted an application on 23.10.1986 Ex.Ka.1 to the S.D.M. concerned narrating the entire facts of the case. She also stated in her application that whenever her daughter used to come to her parental house she always complained about the torture and harassment meted out to her on account of dowry on the part of her husband and his other family members. Smt. Bindu Devi further stated in the application that she could not fulfill the demand of dowry of the husband & his family members so they committed murder of the deceased Basanti Devi. It was also alleged in the application that the deceased did not commit suicide but she was murdered by appellant Shakti Singh and his co-accused. On the application submitted by the informant Bindu Devi, the S.D.M. directed the Naib Tehsildar to investigate the matter. Thereafter, the Naib Tehsildar directed the Supervisor Kanoongo to register the case and investigate the matter immediately. The Supervisor Kanoongo took the investigation in his hand and made the necessary endorsement in the G.D. On 25.10.1986, he took all the documents from the Patwari Rajendra Singh regarding the case of the deceased. The Investigating Officer after completing the necessary formalities of the investigation submitted the chargesheet Ex.Ka.12 before the court. 3. After submission of chargesheet, the accused were committed to the court of Sessions for trial and the trial court framed charges 147, 302/149 and 304-B I.P.C. against the accused. The accused denied the charges levelled against them and claimed their trial. 4. Prosecution in support of its case examined Bindu Devi PW1 complainant. She is the mother of the deceased Basanti Devi. She has stated that her daughter was married with accused Shakti Singh. She has narrated the entire story as unfolded from the application submitted by her to the S.D.M. on 23.10.1986. Mohan Singh PW2 is brother of the deceased Basanti Devi. He has corroborated the evidence of her mother Bindu Devi PW1. Dr. Rajeev Hatwal PW3 is Medical Officer who has conducted the autopsy on the dead body and proved post mortem report. Rajendra Singh, Patwari PW4 has proved F.I.R. and panchayatnama. Kali Ram PW5 is Investigating Officer who has investigated the matter. He has proved F.I.R. Ex.Ka.1 G.Ds. Ex.Ka.9 and Ka.10. He has later on handed over the investigation to Matber Singh PW6, who after completing the investigation submitted the chargesheet Ex.Ka.12. 5. The accused-appellants were examined u/s 313 Cr.P.C. and they have pleaded not guilty to the offence. They have stated that they have been falsely implicated in this case. The accused-appellants has further stated that he has been living with his wife, brothers and bhabhies in a joint family but the deceased Basanti Devi wanted to live separately. It was stated that he was serving in Army in remote area. His wife also wanted to live with him which was not possible for him. Due to this frustration, the deceased Basanti Devi has committed suicide. The accused did not adduce any oral and documentary evidence in their defence. 6. The learned Sessions Judge on appreciation of the evidence held accused-appellant Shakti Singh guilty u/s 302 & 304-B. I.P.C. The other accused Smt. Bhundra Devi, Smt. Dhanna Devi and Smt. Vidhata Devi were acquitted of the charges levelled against them. 7. We have heard Mr. Rajendra Kotiyal, learned counsel for the appellant; Mr. G.S. Sandhu, learned Government Advocate and perused the record carefully. 8. At the outset, it need to be mentioned here that it is not disputed that the deceased Basanti Devi wife of accused- appellant Shakti Singh died in the intervening night of 20/21- 10.1986. According to accused-appellant Shakti Singh the deceased Basanti Devi had committed suicide by hanging herself from a tree. The prosecution has adduced the evidence of Dr.Rajeev Hatwal PW3 who has conducted the post mortem of deceased Basanti Devi on 24.10.1986 and found the following ante mortem injuries on the body of the deceased Basanti Devi :- 1. Bluish contusion all over the face. 2. clotted blood at the right ear or side. 3. Ligature mark around the neck, black in colour. 4. Burn injury wound 3 cm. x 3 cm. on the right shoulder. 5. 3 cm. x ½ cm. x scalp deep just above right ear. 6. 5 cm. x 5 cm. haematoma in between two central haemophilia. Dr. Rajeev Hatwal PW3, Autopsy Surgeon has opined that the deceased died due to coma as a result of head injury. He has also proved post mortem report Ex.Ka.2. Thus there is no dispute about time, place and date of incident regarding the death of the deceased Smt. Basanti Devi. 9. Now we have to see who is responsible for death of the deceased Basanti Devi. There is no direct evidence to prove that accused-appellant Shakti Singh has committed murder of his wife Basanti Devi. The prosecution case rests upon circumstantial evidence. The law which is fairly settled about circumstantial evidence is that it should be such as to point out only to the guilt of the accused. The evidence should exclude all other hypothesis except the guilt of accused. It is often said that though witnesses may lie, circumstances will not but at the same time it must cautiously be scrutinized to see that the incriminating circumstances are such as to lead only to a hypothesis of guilt and reasonably exclude every possibility of innocence of the accused. In order to sustain conviction on circumstantial evidence, each of the incriminating piece of circumstantial evidence should be proved by cogent and reliable evidence and the court should be satisfied that the piece of evidence taken together forge such a chain wherefrom no inference other than the guilt can be drawn. 10. The Hon’ble Apex Court in Sharad Birdhichand Sarda Vs. State of Maharashtra (AIR 1984 SC 1622) while dealing with circumstantial evidence has held that onus was on the prosecution to prove that the chain is complete. The conditions precedent before conviction could be based on circumstantial evidence were enumerated as under :- (i) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established. (ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (iii) the circumstances should be of a conclusive nature and tendency; (iv) They should exclude every possible hypothesis except the one to be proved; and (v) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. The above decision has also been followed in the decisions of the Hon’ble Apex Court in State of Rajasthan Vs. Rajaram 2003 Cri.L.J. p/3901, State of U.P. Vs. Satish 2005 SCC (Cri) 642 and Ram Singh Vs. Sonia & others 2007 (3) SCC 1. 11. Keeping in view of the above principle of law, we will consider the circumstances projected by the prosecution against accused-appellant. 12. The first circumstance projected by the prosecution is that whenever the deceased Basanti Devi used to go to her parental house, she used to tell her mother about the torture and harassment on account of dowry on the part of her husband and family members of her husband. The prosecution has adduced the evidence of Smt. Bindu Devi PW1, mother of the deceased Basanti Devi. She has stated in her evidence that the deceased Smt. Basanti Devi was married with the accused-appellant about two years before the incident. Whenever, the deceased used to come from her matrimonial house to her parental house, she used to complain to her mother that she was being tortured by her husband and other family members of her husband on account of non-providing sufficient dowry at the time of marriage and thereafter. She has further stated in her evidence that the matrimonial house of the deceased was about 10-12 kms. from her parental house. She has further stated in her deposition that the deceased Basanti Devi came to her parental house thrice after marriage and she had always complained to her about torture caused by her husband and in-laws with her. The prosecution has also adduced the evidence of Mohan Singh PW2 who is brother of the deceased Basanti Devi and son of Bindu Devi PW1. He has also corroborated the evidence of Bindu Devi PW1 that whenever her sister used to come to her parental house she always complained about the torture and harassment meted out to her on account of demand of dowry on the part of her husband and family members of her husband. The evidence of Bindu Devi PW1 and Mohan Singh PW2 is credible and cogent. The defence could not elicit anything during the cross examination to discredit their testimony. Thus it is proved that the deceased Basanti Devi was subjected to torture and harassment prior to the incident. 13. The next circumstance that has been projected by the prosecution is that Bindu Devi PW1 has stated in her evidence that she received information that her daughter Basanti Devi has committed suicide by hanging herself from a khinna tree. Bindu Devi PW1 and Mohan Singh PW2 went to the matrimonial house of the deceased Basanti Devi. When Bindu Devi PW1 and Mohan Singh PW2 reached to the matrimonial house of the deceased Basanti Devi, they saw head injury and burn injury on the shoulder of the deceased apart from other injuries. Bindu Devi PW1 has further stated in her evidence that when she inquired about injuries on the person of the deceased from the co-accused & appellant they became annoyed and told her that she wanted to implicate them and threatened her. She also inquired about the injuries on her person from patwari but the patwari did not pay any heed to her query. The evidence of the prosecution on this point is totally credible and cogent. The evidence of PW1 Bindu Devi and PW2 Mohan Singh stands corroborated by the evidence of Dr. Rajeev Hatwal PW3 who conducted the autopsy on the body of the deceased. The doctor has found six ante mortem injuries on the person of the deceased which we have indicated in para 8 of our judgment. Dr. Rajeev Hatwal PW3 has categorically deposed before the Court that death of the deceased was caused due to coma as a result of head injury. He has categorically ruled out the possibility of death of the deceased by hanging. He has further deposed that if death is caused by hanging, it is necessary that there would be fracture of the cartilage bone of the deceased. According to the post mortem report Ex.Ka.2, there was a clotted blood at the right ear orifice. Thus it is amply proved that there were fatal injuries on the person of the deceased prior to her death. If the deceased had committed suicide by hanging from a khinna tree, the death would have been caused by asphyxia. Thus the evidence of doctor and the post mortem report fully corroborated the circumstances that the deceased died due to the head injury sustained by her on her person before her death. 14. The next circumstance projected by the prosecution against the accused-appellant is that the deceased slept with the accused-appellant in the night. Thus she was last seen alive in the company of the accused-appellant. The accused- appellant has also admitted in his statement recorded u/s 313 Cr.P.C. that when he woke up in the morning, he did not find her wife Basanti Devi with him. Thereafter he made a thorough search of the deceased Basanti Devi. Later on, he found her hanging in the jungle from a khinna tree where the deceased had committed suicide. Now it is to be seen that the explanation put forward by the accused-appellant in whose company the deceased Basanti Devi was admittedly sleeping in the night of the incident was probable or not. It is amply established that there were ante mortem injuries on her body and she died due to the said ante mortem injuries. The prosecution has also led credible and cogent evidence of Bindu Devi PW1 and Mohan Singh PW2 that when they reached to matrimonial house of the deceased they saw the body of the deceased and they found head injury and burn injury on her person apart from other injuries. The evidence of Bindu Devi PW1 and Mohan Singh PW2 is further corroborated by the evidence of Dr. Rajeev Hatawal PW3, Autopsy Surgeon and the post mortem report proved by him. It is amply proved from the facts and circumstances of this case that the deceased was hanged from a tree after causing fatal injuries on her person. Thereafter, the accused- appellant with a view to give it shape of suicide hanged the dead body of the deceased from a khinna tree. When the accused-appellant was asked u/s 313 Cr.P.C. that the deceased died due to the head injuries, he merely denied this fact. He was also put question u/s 313 Cr.P.C. that when the body of the deceased was inspected by the Patwari (I.O.) and the witnesses of the inquest report to prepare the inquest report, they found the head injury and burn injury on her person. The appellant simply denied this fact. The appellant has not put forward any explanation for the injuries found on the body of the deceased. Thus the explanation put forward by the accused-appellant is not reliable. The Hon’ble Apex Court in the case of Joseph Versus State of Kerala (2000) 5 SCC p/197 has held as under :- “14. The incriminating circumstances enumerated above unmistakably and inevitably lead to the guilt of the appellant and nothing has been highlighted or brought on record to make the facts proved or the circumstances established to be in any manner in consonance with the innocence at any rate of the appellant. During the time of questioning under Section 313 CrPC, the appellant instead of making at least an attempt to explain or clarify the incriminating circumstances inculpating him, and connecting him with the crime by his adamant attitude of total denial of everything when those circumstances were brought to his notice by the Court not only lost the opportunity but stood self- condemned. Such incriminating links of facts could, if at all, have been only explained by the appellant, and by nobody else, they being personally and exclusively within his knowledge. Of late, courts have, from the falsity of the defence plea and false answers given to court, when questioned, found the missing links to be supplied by such answers for completing the chain of incriminating circumstances necessary to connect the person concerned with the crime committed (see State of Maharashtra v. Suresh (2000) 1 SCC p/471). That missing link to connect the accused-appellant, we find in this case provided by the blunt and outright denial of every one and all the incriminating circumstances pointed out which, in our view, with sufficient and reasonable certainty on the facts proved, connect the accused with the death and the cause for the death of Gracy. For all the reasons stated supra, we have no hesitation to agree with the findings of the Division Bench of the High Court holding the appellant guilty of offences under Section 302 for committing the murder of Gracy and for robbing her of her jewellery worn by her – MOs 1 to 3, under Section 392. The deceased meekly went with the accused from the Convent on account of the misrepresentation made that her mother was seriously ill and hospitalised apparently reposing faith and confidence in him in view of his close relationship – being the husband of her own sister, but the appellant seems to have not only betrayed the confidence reposed in him but also took advantage of the loneliness of the helpless woman. The quantum of punishment imposed is commensurate with the gravity of the charges held proved and calls for no interference in our hands, despite the fact that we are not agreeing with the High Court in respect of the findings relating to the charge under Section 376.” 15. Thus the statement of the accused-appellant recorded u/s 313 Cr.P.C. being palpably false and there being cogent evidence adduced by the prosecution to show that accused- appellant has given a different version. The Court will have to proceed on the basis of the fact that accused-appellant had not explained inculpating circumstances established by the prosecution against him which would form an additional link in the chain of circumstances (See Mani Kumar Thapa Vs. State of Sikkim (2002) 7 SCC p/157 and State of Maharastra Vs. Suresh (2000) 1 SCC p/471). It is also a relevant factor in the light of the above circumstances. 16. The next circumstance projected by the prosecution is that Gram Pradhan has submitted an application Ex.Ka.3 to patwari in which he has written that the deceased Basanti Devi has committed suicide by hanging from a khinna tree on 21.10.1986. It was further mentioned in the report that after thorough search, the dead body was found at about 4:00pm. Bindu Devi PW1 has stated in her evidence that when she received the information about death of the deceased Basanti Devi by committing suicide, she alongwith Mohan Singh PW2 went to the matrimonial house of the deceased and found there that dead body of the deceased Basanti Devi was lying on the ground near about 100-150 paces from the house of accused-appellant. She has further stated that khinna tree was standing just nearby the place where dead body was lying on the ground. It is undisputed that the dead body of the deceased was traced at about 4:00p.m. on 21.10.1986. It is also the case of the defence that accused-appellant did not find the deceased asleep with him in the morning when he woke up. Undisputedly, the dead body remained hanging for a pretty long time from a khinna tree. The accused- appellant went to parental house of the deceased to trace her wife but he could not find the dead body till 4:00 p.m. which was hanging nearby. It is apparent if the deceased would have disappeared from his house, the family members of the accused-appellant would have made a thorough search in the nearby places where she could have been located or the dead body could have been find out. Thus this circumstance further corroborates the story of the prosecution. 17. Learned counsel for the appellant vehemently argued that the appellant could not be convicted u/s 302 I.P.C. (simpliciter) without the aid of section 149 I.P.C. in absence of substantive charge u/s 302 I.P.C.. Learned G.A. refuted the contention. Perusal of the charge reveals that the trial court has framed the following charges against the accused/appellant :- “That you on the night intervening 20/21.10.1986, some time about the mid night in village Nalali, Patti Patalsyun, District Pauri Garhwal, alongwith one Smt. Sulochana Devi were a member of an unlawful assembly and in prosecution of the common object of such unlawful assembly, to wit to commit murder of Smt. Basanti Devi committed riot, and thereby committed an offence punishable u/s 147 Indian Penal Code and within the cognizance of this Court. Secondly, that at the time and place mentioned above, in prosecution of the common object of such unlawful assembly, of which you were a member, murder of Smt. Basanti Devi was committed by members of the unlawful assembly and you knew that said offence is likely to be committed by the said unlawful assembly, and thereby committed an offence punishable under Section 302/149 of the Indian Penal Code and within the cognizance of this Court. Thirdly, that at the above time and place, death of Smt. Basanti Devi was caused by burns or bodily injury, otherwise than under normal circumstances, within seven years of here marriage with accused Shakti Singh and it is shown that soon before death of Smt. Basanti Devi, she was subjected to cruelty or harassment by you and Smt. Sulochana Devi, beign husband and relatives of the husband of Smt. Basanti Devi, and thereby you willfully committed dowry death and thereby committed an offence punishable under Section 304 B of the Indian Penal Code and within the cognizance of this Court.” 18. Now we have to consider as to whether the appellant could be convicted for murder and sentenced u/s 302 I.P.C. (simpliciter) when he was not charged with the substantive offence u/s 302 I.P.C. The learned Trial Court has acquitted the other co-accused of the charges of the offence u/s 302 r/w 149 I.P.C. Now the sole question remains for the consideration as to whether in the instant case there is no direct evidence against the accused/appellant that he has committed the offence of murder. The case rests on circumstantial evidence. As we have noticed earlier the circumstances conclude that it was the appellant who committed the murder of the deceased. Now