1 HIGH COURT OF UTTARAKHAND, AT NAINITAL Criminal Appeal No. 242 of 2002 Vijendra Prasad Bhatt S/o Shri Shivanad Bhatt R/o Village Amani, P.O. Amani Police Station Devprayag District Tehri Garhwal …Appellant Versus State … Respondent Mr. Vinod Sharma, Advocate for the appellant. Mr. Amit Bhatt, Addl. G.A. for the respondent-State. Judgment Hon’ble J.C.S. Rawat, J. This appeal has been directed against the judgment and order dated 20.09.2002, passed by learned Sessions Judge, Tehri Garhwal in Sessions Trial No. 12 of 1999, whereby the appellant has been convicted & sentenced to undergo five years R.I. under section 307 I.P.C. & a fine of Rs.2000/- and in default of payment of fine the appellant shall further undergo two months R.I. The appellant has also been convicted and sentenced to undergo six months R.I. u/s 506 I.P.C. 2. The prosecution story, in brief, is that the complainant Thuma Devi lodged a report Ex.Ka.1 on 08.07.1998 at about 1835 hrs. at police station Devprayag alleging therein that her husband had been working in the Education Department at Tholdhar and she alongwith other women relatives had been residing in the village. On 05.07.1998 at about 10:00 p.m., an unknown person peeped into her house through the doors and as soon as her son Pramod Bhatt came out to see him, he ran away from there. After few days, on 08.07.1998 2 one Virendra Sati stayed in her house and when he went out for natural call at about 4:30 a.m., he saw a person running away. Thereafter, he found her niece Manju Devi (victim) hanging on a Bheemal tree. On seeing this, he called out the complainant Thuma Devi (mother-in-law of the victim). Thereafter, the complainant also saw her daughter-in-law hanging on the Bheemal tree with her hands tied with the branch of the tree. It was further alleged that Manju Devi (victim) was in the advance stage of pregnancy. The complainant Thuma Devi thought that her daughter-in-law was having pregnancy pain and as such she was embracing the said tree. When she came near to her daughter-in-law, she found that her hands were tied with the rope on the Bheemal tree. Thereafter, Virendra Sati and the complainant cut the rope of the victim. Manju Devi stated to them that when she was returning from natural call in the early morning, the accused/appellant closed her mouth, dragged her near the Bheemal tree and closed her face with the cloth worn on her head. Thereafter, the appellant/accused tried to hang her on the rope already hanging on the tree, but he could not lift her upto the height of rope. Thereafter, he tied her hands with the branch of the tree and gave blows her with danda. On hearing some sound, he fled away from the spot giving threat to her and her family members. The victim further stated to them that if the accused/appellant would not hear the sound at that time, he would have hanged her. On the basis of F.I.R. Ex.Ka.1, chick F.I.R. Ex.Ka.4 was prepared and necessary entry was made in the G.D. The investigation of the case was entrusted to S.O. P.S. Deoprayag, Sri D.D. Arya. After completing the investigation, the police submitted the chargesheet Ex.Ka.7 against the accused/appellant before the court. 3 3. After submission of chargesheet, the accused/appellant was committed to the court of Sessions for trial and the trial court framed charge u/s 307 and 506 I.P.C. against the accused/appellant. The accused/appellant denied the charge levelled against him and claimed his trial. 4. The prosecution in support of its case examined as many as eight witnesses. Smt. Manju Bhatt PW1 is the victim of the offence. Thuma Devi PW2 is the complainant and mother-in- law of the victim. Virendra Sati PW3 is maternal uncle of the victim and he had seen the victim hanging from the Bheemal tree. On the date of incident he had gone to the house of Dharmanand/complainant in the village. Prem Lal PW4 had handed over the material exhibits like broken bangles, rope and safa to the police. Dr. Rajiv Nigam PW5 is the Medical officer who has examined the injuries on the person of the victim. Pramod Chandra PW7 is the son of the complainant Thuma Devi. Constable Sunder Singh PW6 is the formal witness. Shri D.D. Arya, PW8 is the Investigating Officer of this case. 5. The accused-appellant was examined u/s 313 Cr.P.C. and he has pleaded not guilty to the offence. He has further stated that he has falsely been implicated in this case due to enmity. He did not produce any evidence in defence. 6. The learned Sessions Judge on appreciation of the evidence held the accused-appellant guilty and convicted and sentenced him as mentioned above. 4 7. I have heard Mr. Vinod Sharma, Advocate for the appellant; Mr. Amit Bhatt, Addl. G.A. for the State and perused the record. 8. The prosecution led the evidence of the victim Manju Bhatt PW1 to prove its case. She has stated in her evidence that when she went to her natural call early in the morning, the accused/appellant was hiding at the place of occurrence, pounced upon her, closed her eyes and mouth/face by the safa worn by her on the head, dragged her to Bheemal tree and tried to put Fanda of rope already hanging from the tree into her neck. She was having the pregnancy 8-1/2 months. Due to pregnancy, she had gained the weight. The accused/appellant could not lift her upto the height of rope and failing in his attempt to do this, the accused/appellant tied both of her wrists with the branch of the tree. After having tied, the accused/appellant gave 2-3 blows to the victim and thereafter fled away from the spot. She cried for the help and thereupon her maternal uncle Virendra Sati PW3 reached at the spot. She also stated that her mother-in-law Thuma Devi PW1 cut off the rope tied in the hands and opened the safa tied on her face. Thereafter, she was medically examined at Hindolakhal on 08/07/1998 by Dr. Rajiv Nigam PW5. The doctor has found the following injuries on the person of the victim:- 1. A bruise over left thigh front side about 6 inches x 1 inch. 2. A circular bruise over fore head just below hair line, 3 cm from left eyebrow 2 cm. circular. 3. C/o pain over both side of writs 4. C/o pain over both lateral side of chest. 5. Patient is pregnant about 8-1/2 months 5 6. C/o bleeding from left nostril. The doctor has opined that all the injuries were caused by hard blunt object and were simple in nature. Injury No.4 was kept in observation. It was further observed that duration of the injuries were 6 to 8 hours approximate. 9. Thuma Devi PW2 was produced before the Court. She is the mother-in-law of the victim. She has stated that on 05/07/1998 the accused/appellant was peeing inside her house and when she came out, he ran away from the spot. On the date of the incident when her daughter-in-law (victim) went to her natural call and when she did not return for a considerable time, she went out to make her search. Then she saw that the hands of her daughter-in-law was tied with the tree branch and safa was around her face. Thuma Devi PW2 cried for the help on which Virendra Sati PW3 who was staying in her house on 07/07/1998 came at the spot. She cut off the rope of the victim and took her to house. 10. Virendra Sati PW3 has stated in his evidence that on 07/07/1997, he came to the house of Thuma Devi PW2 and Dharmanand to meet his niece Manju Bhatt PW1 who was married with the son of Thuma Devi PW2. He has further deposed that he went to meet the natural call in the fields at about 4:30 to 5:00 a.m. in the morning. When he was returning, he saw the victim hanging from a Bheemal tree which is located near the latrines but at some distance from the house. When he reached at the place of occurrence, he found her mother-in-law Thuma Devi PW2 standing there and Manju Bhatt PW1 was hanging on the tree. Thuma Devi PW2 6 called her son to come with sickle at the place of occurrence. Thereafter, the rope was cut off and the victim was taken to her house. He has further stated that he did not inquire from Manju Bhatt PW1 as to who has tied her. 11. Prem Lal PW4 was produced before the court and he has stated that the victim has stated to him that the accused/appellant had tied her in the tree with the rope. He is the witness of recovery of broken bangles, rope and safa (material exhibits 1 to 3). 12. Pramod Chandra PW7 was produced before the court who is the son of Thuma Devi PW2. He has stated in his evidence that he was present in his house on the date of occurrence. His mother Thuma Devi PW2 called her from her house and when he was going towards the place of incident, the victim and his mother were coming to the house. Constable Sunder Singh PW6 is the formal witness who has lodged the report and proved the G.D. Shri D.D. Arya PW8 is the Investigating Officer of this case. 13. After going through the entire evidence, it is revealed that the victim is the main witness of this case who could only tell how the incident took place. According to the victim, the accused/appellant ran away after tying her with the tree. Later on the witnesses reached at the spot on the cry of Thuma Devi PW2, her mother-in-law. Now, it is to be seen whether the evidence of victim Manju Bhatt PW1 is credible and cogent. 14. It was contended by the learned counsel for the appellant that there was no ligature mark on the wrists of the 7 victim Manju Bhatt PW1; if according to the evidence of Manju Bhatt PW1 she was dragged for a considerable distance to tie her on the Bheemal tree on the sloppy hill having the silt on the surface, there would be injuries or mark of dragging on her body; the doctor has also stated that if the victim Manju Bhatt PW1 had been dragged on such surface, there would be some mark of injuries on the body of the victim; according to the prosecution, the victim was beaten by a wooden stick (danda) after having tied and two simple injuries were caused; if the intention would be to kill the victim, the accused/appellant could have caused fatal injuries on her persons; there is no evidence that victim was tied up or she was dragged; and no cry was made for the help. It was further contended that the evidence of the victim was self contradictory; the evidence of Virendra Sati PW3 and Prem Lal PW4 is of no avail because Virendra Sati PW3 has stated that he had not inquired from the victim who had tied her with the tree and with whom the scuffle took place. He has not stated the participation of the accused/appellant; Prem Lal PW4 has stated in his evidence that he asked the victim about the injuries and the victim has told him that the appellant has caused injuries to her and tied with the tree; this witness has not stated this fact during the examination u/s 161; and he had improved the case of the participation of the accused/appellant during the trial. The learned Addl. G.A. refuted the contention and supported the findings recorded in the judgment. 15. It is in the evidence of the victim that she was dragged to a considerable distance from the place of the latrine to the place of Bheemal tree. The surface was a sloppy and having the stones on it. If the victim had dragged, the injuries 8 would have been sustained on her body. It is in the evidence that the victim had not made any cry for the help. It is natural if any unknown person or any known person commits any offence of serious nature, the victim would cry for the help. Thus, the conduct of the victim is not in consonance with the natural conduct of the human being. It is not in the evidence that the accused/appellant was having wooden stick in his hand when she was tied with the branch of the tree. The accused/appellant caused two injuries of a simple nature as indicated above. If the accused/appellant had come to cause the death of the victim, he could have caused the fatal injuries on her person and he would not have left the victim to survive to adduce the evidence against him. Thus, this fact also belies the prosecution story. Apart from this, the rope was already hanging in the tree. There is no evidence on record or it is not in evidence that any second rope was found at the place of incident. It leads to take conclusion that the rope was untied and thereafter the wrists of the victim was tied and again that rope was tied with the branch of the tree. In doing so, a considerable time would have spent and the lady would have sufficient time to leave the place of occurrence and to seek the help. The prosecution could not demonstrate me as to how, the second time the rope was tied. This further belies the version of the prosecution. 16. It is pertinent to note that Virendra Sati PW3 has stated in his evidence that the victim was tied with the branch. She was hanging and her finger were touching the ground. Thus it is apparent from the evidence that her toes were only touching the ground. Virendra Sati PW3 has further 9 corroborated this fact in para 16 of his cross examination. He has sated in para 16 of his evidence as under :- “yM+dh ds gkFk isM+ ij cW/ks Fks o vkxs ds iats tehu ij FksA Hkhey ds isM+ ij jLlh ca/kh gqbZ Fkh o ml jLlh ij mlds gkFk ckW/ks FksA isM+ dh Vguh ij ij ugha yVdk j[kh Fkh” Thuma Devi PW2 has stated para 7 of his evidence as under : “tc eSa eksds ij xbZ rks esjh cgw isM+ ls yVdh gqbZ Fkh o tehu ls Åij FkhA vanktu 2 gkFk Åij FkhA” It is apparent from the evidence that the victim was hanging at that time. If the victim would have been hanged as stated by Thuma Devi PW2 and Virendra Sati PW3, there must be some ligature marks on the wrist. According to the evidence of Dr. Rajiv Nigam PW5 there was no ligature mark on the body of the victim. The injuries as narrated above did not disclose any ligature mark in the wrists. According to the prosecution, the wrists of the victim was tied and then she was hanged. The place where the victim was hanging as narrated by the prosecution, there must be some ligature mark on the hands/writs of the victim. Doctor Rajiv Nigam PW5 has further stated in his cross examination as under :- “;fn fdlh efgyk dks gkFk ls cka/k dj isM+ ls yVdk;kk tk; rks mlds gkFk ij ml jLlh ds fu’kku ligature mark gksus pkfg, FksA bles dksbZ ligature mark dykbZ ij ugha FksA mldh dykbZ pwfM+;ksa ls dVus ds dksbZ fpgu ugha FksA ;fn fdlh efgyk dks isM+ ls jLlh ls yVdk dj j[ks rks mlds dU/kksa ds tksM+ks ij nnZ gksuk pkfg,A bl efgyk us vius dU/kksa ds tksM+ks ij nnZ dh dksbZ f’kdk;r ugha dh FkhA tc og yVdh jgsxh rks dU/kksa ds tksM+ks ij iwjk otu dk Hkkj iM+ tkrk gS blfy, dykb;ksa ij o da/kks ds tksM+ks ij nnZ dh f’kdk;r gksrh gSA” 10 Thus the evidence further shows that the story as narrated by the prosecution is not believable as there was no ligature mark on the hands of the victim. It is also in the evidence that the accused/appellant had filed a case against the complainant party which is pending before the Chief Judicial Magistrate. Thus, there is enmity to implicate the accused/appellant in this case. It is also in the evidence that the bangles of the victim were broken and no cut mark was found on her hands. If the rope was tied and bangles were broken, naturally there would be some injuries on the hands/wrists of the victim. 17. Virendra Sati PW3 has not stated about the participation of the accused/appellant in his evidence. He had not asked from his niece who had tied her and who had committed the offence. Prem Lal PW4 has stated that the victim told him that she was tied up with the tree and the incident was caused by the accused/appellant. He has stated the participation of the accused/appellant on the basis of the inquiry made immediately after the incident from her daughter-in-law. Thus, the story has been developed during the trial. He has not stated this fact in his statement recorded u/s 161 Cr.P.C. This fact has been proved by the Investigating Officer that he had not stated this fact to him. Thus, the participation of the accused/appellant has been stated in the first time before the court. The evidence of Prem Lal PW4 is of no avail to the prosecution. 18. Pramod Chandra PW7 is the son of the complainant Thuma Devi PW2. He has stated that he saw the victim going 11 to his house and he has not seen the incident. Thus, Pramod Chandra PW7 is not witness of the fact. 19. It is also contended that the F.I.R was lodged after consultation. It is apparent from the evidence of Pramod Chandra PW7 that the incident took place in the morning on 08/07/1998. Thereafter, they went to call the police after 1- 1/2 hours. Before calling the police, they scribed the report and thereafter went to the police station. They reached at about 9:00 a.m. at the police station Devprayag and gave the report to the police station. Thereafter, the police came with them at about 10:00 to 11:00 a.m. in the morning and they reached at their home at about 12:00 to 1:00 p.m. He has also stated that when the police came on 08/07/1998, they took the accused/appellant from his house. The police again came on the next day at about 11:30 a.m. and prepared the recovery memo of the broken bangles, etc. It is apparent from the evidence that the report was given at about 9:00 a.m. on 08/07/1998 and the police reached at the spot and the accused/appellant was apprehended on the same day. Prem Lal PW4 has stated that the police came at the spot on 08/07/1998 and the bangles were collected by him and handed over to the police. Constable Sunder Singh PW6 further stated that the report was given to him in which the S.O. made a remark that the report should be lodged and no section was mentioned under which the report was to be lodged. The said endorsement was incorporated in the F.I.R. and that report also contained the medical report which was referred in the G.D. But in the G.D. there is no mention about the medical report and the endorsement made in the F.I.R. as stated by him. Thus, it is apparent that the report was given which was not brought forward before the Court 12 and a second report was lodged at about 6:00 p.m. on 08/07/1998 on the date of the incident. This further creates a doubt about the version of the prosecution. 20. In view of the foregoing discussions and on the basis of the aforesaid unreliable evidence, I am of view that it would not be safe to convict the appellant. The prosecution has not been able to establish the guilt beyond any reasonable doubt against the appellant. I find that the learned trial court has erred in convicting and sentencing the appellants. The judgment and order dated 20.09.2002 passed by learned Sessions Judge in Sessions Trial No. 12 of 1999 is set aside and the appeal is allowed. The appellant is acquitted from the charge levelled against him. The appellant shall be released forthwith, if not wanted in any other case. 21. Let the lower court record be sent back to the court concerned for compliance. Compliance report be submitted within a period of four months. (J.C.S. Rawat, J.) Dated 13th June, 2008 Shiv