IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Government Appeal No. 1462 of 2001 (Old No. 809 of 1994) State …………………..Appellant. Versus Devendra S/o Jagpal R/o Village Harjoli, P.S. Manglaur, District Haridwar. ………..Respondent. Sri Amit Bhatt, Additional Government Advocate for the appellant. Sri Manish Arora, Advocate for the respondent. Hon’ble Prafulla C. Pant, J. Hon’ble B.S. Verma, J. [Oral- Hon’ble Prafulla C. Pant, J.] This appeal, preferred under Section 378 of Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), is directed against the judgment and order dated 09.02.1994, passed by learned Additional Sessions Judge, Roorkee, in Sessions Trial No. 138 of 1990, whereby accused / respondent Devendra has been acquitted of charge of offence punishable under Section 302 of Indian Penal Code, 1860 (hereinafter referred as I.P.C.). (2) Heard learned counsel for the parties and perused the trial court’s record. 2 (3) Prosecution story in brief is that about two years before the incident, Poonam (deceased) got married to accused / respondent Devendra. On 20th January 1990, at about 6.00 A.M., Balendra, elder brother of accused / respondent, informed one Nasir that in the preceding night at about 1.00 A.M. Poonam has been murdered. On this, complainant P.W.1 Tahendra, brother of the deceased and P.W.2 Baspal, father of the deceased, went to the in-laws place of Poonam at Harjoli (within the limits of Police Station Manglaur, District Haridwar) and saw her dead body. There was ligature mark on the neck of the deceased. The two suspected that Poonam has been murdered by her husband (accused / respondent Devendra), as he used to complain that Poonam was a dark complexioned lady. P.W.1 Tahendra, lodged First Information Report (Ext.A- 1) with Police Station Manglaur, against accused / respondent Devendra, which was registered as Crime No. 35 of 1990, relating to offence punishable under Section 302 I.P.C., at about 2.15 P.M.. On 20th January 1990, P.W.8 Sub Inspector K.S. Randhawa, who was entrusted with the investigation, along with Police personnel, went to the spot, took the dead body of the deceased in his possession and prepared Inquest Report (Ext.A-2). He also prepared other necessary papers and got sent the dead body in a sealed condition for postmortem examination. P.W.5 Dr. O.P. Sharma conducted postmortem examination on 21.01.1990 and prepared Autopsy Report (Ext.A-3). He found a ligature mark on the neck, an abrasion near the ligature mark and a contusion on the chest of the deceased and opined that the deceased had died on account of asphyxia due to strangulation. The Investigating Officer interrogated the witnesses and prepared Site Plan (Ext.A-6). 3 Later, the investigation was transferred to P.W.6 Ajay Kumar, Station Officer, who after completion of investigation submitted charge sheet (Ext.A-4) against accused / respondent Devendra for his trial in respect of offences punishable under Sections 302 / 201 I.P.C.. (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., appears to have committed the case to the court of Sessions for trial. Learned Additional Sessions Judge, Roorkee, to whom the case was transferred, after hearing the parties, framed charge of offence punishable under Section 302 I.P.C. against the accused / respondent Devendra on 02.07.1991, to which the accused / respondent pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W.1 Tahendra, complainant and brother of the deceased, P.W.2 Baspal, father of the deceased, P.W.3 Subhash, P.W.4 Om Prakash, P.W.5 Dr. O.P. Sharma, who conducted postmortem examination, P.W.6 Ajay Kumar, Station House Officer, who completed the investigation, P.W.7 Vikram Singh and P.W.8 Sub Inspector K.S. Randhawa, who started investigation. All the Oral and documentary evidence was put to the accused under Section 313 Cr.P.C., in reply to which he alleged the same to be false. However, as to the unnatural death of the deceased the accused / respondent did not deny the same. It is alleged by him that father and brother of the deceased demanded Rs.30,000/- after the death of Poonam and when the demand was not met, they lodged false First Information Report against him. In defence, on behalf of accused / respondent D.W.1 Munesh, D.W.2 Aslam Khan and 4 D.W.3 Sitaram, were got examined and three letters (Ext.B-1, Ext.B-2 and Ext.B-3) allegedly written by the deceased before her death, were got proved apart from the papers relating to her primary school education. (5) The trial court, after hearing the parties, found that the prosecution has failed to prove the charge of murder against the accused / respondent beyond reasonable doubt and consequently acquitted him. Hence, this appeal was filed by the State against the impugned order dated 09.02.1994, passed by the trial court in Sessions Trial No. 138 of 1990, whereby the respondent was acquitted, before Allahabad High Court, where the leave was granted and the appeal was admitted on 18.02.1999. The appeal is received by this Court by transfer under Section 35 of U.P. Reorganisation Act, 2000, for its disposal. (6) Before further discussions, we think it just and proper to mention the ante mortem injuries found by P.W.5 Dr. O.P. Sharma, who conducted postmortem examination on the dead body of Poonam (wife of the accused / respondent). The ante mortem injuries mentioned in Autopsy Report (Ext.A-3) are being reproduced as under:- (1) Ligature mark 27 cm x 1.7 cm around the neck, starting from right side back of neck, 8 cm below the right ear. Continued to right side front of neck. 5 (2) Abrasion and echymosis around the edge of ligature mark present. Sub cutanious tissue under the mark ecchymosed (3) Contusion 6 cm x 4 cm upper part of chest front. The Medical Officer (P.W.5 Dr. O.P. Sharma), who conducted postmortem examination opined in his Report (Ext.A-3) that the deceased had died of asphyxia due to strangulation. When P.W.5 Dr. O.P. Sharma, was cross examined by the accused as to what is the distinction between asphyxia by hanging and asphyxia by strangulation, he replied that ligature mark in the cases of hanging is usually over the Adams apple while in the case of strangulation it is below the Adams apple. When further questioned on the issue the Medical Officer stated that he has not mentioned whether the ligature mark was above the Adams apple or below it. He further stated in the court that apart from the contusion mentioned in the ante mortem injury, there is no injury suggesting that any force is used which is usually found in the cases of strangulation. As to the contusion he could not rule out that said injury might have been caused by getting struck with any hard object like a door. This evidence of the Medical Officer made room for the trial court to read the testimony of the witnesses produced on behalf of the prosecution with caution in examining whether the deceased had actually been murdered or committed suicide as suggested on behalf of accused / respondent to the prosecution witnesses. 6 (7) It is a case of circumstantial evidence. That P.W.1 Tahendra, complainant and brother of the deceased P.W.2 Baspal, father of the deceased, P.W.3 Subhash and P.W.4 Om Prakash, all residents of Nasirpur (village to which complainant belongs), have stated that accused / respondent complained to them that Poonam (deceased) was dark complexioned and she should be taken back by them else she would be killed. However, in defence, evidence has been adduced on behalf of accused / respondent and three letters (Ext.B-1, Ext.B-2 and Ext.B-3), written by the deceased, are proved. Ext.B-1 is a suicide note, written by the deceased, in which she has clearly mentioned that she had no complaint against her husband Devendra nor is he responsible and she used to love him. The other two letters of February 1989 and May 1989 also does not disclose that the deceased had any complaint against her husband Devendra (accused / respondent). Taking the evidence adduced on behalf of the accused / respondent into consideration read with evidence adduced by P.W.5 Dr. O.P. Sharma, trial court found that the charge of offence of commission of murder by accused / respondent, of his wife, cannot be said to have been proved beyond reasonable doubt, as such, giving him benefit of doubt, the trial court acquitted the accused / respondent. (8) On behalf of the State / appellant it is argued that the trial court has erred in law in not believing the statements of P.W.1 Tahendra, complainant and brother of the deceased, P.W.2 Baspal, father of the deceased, P.W.3 Subhash and P.W.4 Om Prakash, who have clearly stated that the accused / respondent did not like the dark complexion of his wife 7 (deceased) and in the Panchayat the deceased’s father was told to take back the deceased else the accused would kill her. We have re-examined the evidence on record. All these four witnesses are of the same village i.e. village of the complainant. It is quite possible that what they are stating might be true, but in a case of the kind based on the circumstantial evidence, the chain of circumstances must be proved to hold accused guilty, ruling out the commission of crime by anyone else. Except for the circumstance as stated by four witnesses and the fact that the deceased had died unnatural death, rest of the links are missing in the chain. Even as to the unnatural death statement of P.W.5 Medical Officer Dr. O.P. Sharma is shaky in his cross examination as to whether it is a case of strangulation or that of a hanging. Having gone through the entire evidence on record, we feel that where two views were possible for the trial court, and one is taken, in such circumstances in the cases of the appeal against acquittal, view taken by the trial court should not be interfered with. (9) As to the offence of abetment of suicide by the accused / respondent, it is contended on behalf of accused / respondent that there is no evidence of instigating the deceased to commit suicide, on the part of the accused / respondent nor is there any evidence that deceased was compelled or encouraged to commit the suicide by the accused / respondent. In this connection attention of this Court is drawn to the suicide note (Ext.B-1) proved on the record. As such, conviction cannot be recorded even under Section 306 I.P.C., particularly when no charge framed on that count. 8 (10) For the reasons as discussed above, we do not find any sufficient reason to interfere with the impugned judgment and order passed by the trial court. Accordingly, the appeal is dismissed. (B.S. Verma, J.) (Prafulla C. Pant, J.) 23.03.2009 NS