IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 1190 of 2001 Sumer Singh … Appellant Vs State of U.P. … Opposite Party (Now Uttarakhand) Sri Lokendra Dobhal, learned counsel for the appellant Sri S.S. Adhikari, learned A.G.A. for the State/respondent Coram: Hon’ble B.C. Kandpal,J. Hon’ble Nirmal Yadav, J. [(Judgment Per: B.C. Kandpal, J. (Oral)] This appeal has been preferred by the accused/appellant – Sumer Singh against the Judgment and order dated 03.05.1997 passed by learned Sessions Judge, Tehri Garhwal in Sessions Trial No. 17 of 1994, State Vs Sumer Singh thereby convicting the appellant under Section 302 of I.P.C. and sentencing him for life imprisonment. 2. Brief facts of the prosecution case are that Shri Dharam Singh, Village Pradhan of Gramsabha Myura, has given the written report, Ext. Ka 1 at P.S. Tehri on 21.01.1994, with an allegation that Smt. Sauna Devi W/o Sumer Singh hanged herself on a tree and she has died. It was also informed that the cause of strangulation is not known, hence, necessary action be taken in the matter. Entry of this report was made in the G.D. (Ext. Ka 6) by Sri Bhagwan Singh Bist, clerk-constable (P.W.9) at Police Station Tehri. Sri Ganda Singh Verma – Sub-Inspector (P.W.10) along with other police force was deputed for conducting the inquest and other formalities relating to the dead body of Smt. Surna Devi and thereafter further action to be taken in the matter. Sri Ganda Singh Verma recorded the statement of clerk-constable Bhagwan Singh and Dharam Singh at the police station. He also visited the forest of village and saw the dead body of Smt. 2 Sauna Devi over there, then prepared the inquest memo (Ext. Ka 7), photo lash (Ext. Ka 8), Challan lash (Ext. Ka 9), letter to C.M.O. (Ext. Ka 10), letter to R.I. (Ext. Ka 11) and thereafter sealed the dead body and sent the same to the Government Hospital, Tehri for postmortem. Thereafter, he recorded the statements of the witnesses of the inquest memo. He also found one Daranti, one rope, one shawl and chappal near the dead body and after taking the same into his possession, memo Ext. Ka 2 was prepared. 3. The dead body of the deceased was brought and identified at the hospital by constable Mohd. Gufran. Thereafter, Dr. J.P. Chamoli and Dr. Narendra Jha conducted the postmortem of the dead body of the deceased on 22.01.1994 at 02:30 p.m. at Government Hospital, Tehri Garhwal. The doctors opined that death occurred about three days ago. On external examination, the dead body of the deceased was of thin built lady, rigor mortis was absent in neck and upper limbs; eyes were congested both sides; ecchymosis in perverted conjustiva; secretion was present in nose and mouth; lips were bluish. The doctors also found following ante-mortem injuries on the body of the deceased:- 1. A ligature mark present all round the neck below thyroid cartilage about 1cm wide with marks of rope in it posteriorly. It is situated at the level of C5-C6 and complete and deep on dissection. There is haemorrhage at the base of it in soft tissues, hyoid bone was broken. 2. There is a contusion 1cm X 1cm on the left side of forehead. Dissection reveals injury upto facial level. There is haemorrhage below it. 3 3. A linear abrasion on the left side of the flank of abdomen and chest about 15 cms long. 4. A contusion 1cm X 1cm above left clavicle. Genitals normal. No sign of any injury to vagina or external genitalia. 4. On internal examination, bones of the head were intact. There was petachial haemorrhage in the membranes. Brain was congested with haemorrhage. Base of the head was intact. Pleura was congested with petechial haemorrhage, larynx and trachea were congested with petechial haemorrhage. Both the lungs were congested. Pericardium was congested with petechial haemorrhage. Right chamber of the heart was full and left chamber was empty. Right side vessels were full and left side vessels were empty. Digested food was present about 100 Grams and the same was preserved. The cause of death was asphyxia due to strangulation. Vissera was preserved. After conducting the postmortem, both the doctors i.e. Dr. J.P. Chamoli and Dr. Narendra Jha have prepared the post mortem examination report (Ext. Ka 3). The bundle of the recovered articles alongwith the post mortem were sent to the concerned police station through a constable. 5. The investigation of the case was entrusted to Sri L.S. Shukla. The Investigating Officer – Sri L.S. Shukla (P.W.7) after investigating the case, submitted the chargesheet (Ext. Ka. 4) against the accused and the same was proved by him before the court below. Sri Pyarelal (P.W.8) was Head Moharrir at police station Tehri on 25.01.1994, on the saying of Sri Genda Singh Verma – Sub- Inspector (P.W.10) amended crime No. 3/94 under Section 306 of I.P.C. into Section 302 of I.P.C. by making the entries in the G.D. vide Ext. Ka. 5 and 4 the entry of the said G.D. was proved by this witness before the court below. After submission of chargesheet, the case was committed to the court of Sessions. 6. In order to support its case, the prosecution has produced Inder Singh (P.W.1) – witness, Dharam Singh (P.W.2) – witness of information, Thaggu Singh (P.W.3) – witness of recovery memo, Dr. J.P. Chamoli (P.W.4) – who conducted the postmortem, Nathi Singh (P.W.5) –witness, Kiri Devi (P.W.6) – mother of the deceased, Laxmi Shankar Shukla (P.W.7) – Investigating Officer, Pyare Lal (P.W.8) – Head Constable, Bhagwan Singh (P.W.9) and Genda Singh Verma (P.W.10). 7. Thereafter, the statement of the accused/appellant was recorded under Section 313 of Cr.P.C. wherein he has denied all the allegations levelled against him by the prosecution. He has further stated that he has never beaten his wife nor has subjected her to cruelty. However, no oral or documentary evidence was adduced by the accused in his defence. 8. The trial court after having considered the material available on record and hearing learned counsel for the parties convicted the accused/appellant Sumer Singh, under Section 302 of I.P.C. and sentencing him to undergo for life imprisonment vide judgment and order dated 03.05.1997. 9. Feeling aggrieved by the aforesaid judgment and order, the convict/appellant has preferred this appeal before this Court, which has been placed before us for disposal. 5 10. Heard Sri Lokendra Dobhal, learned counsel for the appellant, Sri S.S. Adhikari, learned A.G.A. for the State and perused the record. 11. In this case, Inder Singh is the witness of fact and the prosecution has produced him in order to establish that there had been quarrel between the accused and his wife (deceased). When this witness was produced before the court, he has stated that there had been no quarrel at all between the accused and his wife nor the accused had ever beaten his wife. This witness has also stated that the accused had not gone behind his wife towards the forest. This witness was declared hostile by the prosecution and during his cross- examination; he has again not supported the prosecution version at all. Likewise, Dharam Singh (P.W.2) is the Pradhan of the village and this witness is the person who has given the First Information Report regarding the death of Sauna Devi. He has proved the report (Ext. Ka. 1). This witness has also stated in his deposition before the court that he has not seen quarrel between the accused with his wife Sauna Devi. Other witnesses like Thaggu Singh (P.W.3) and Dr. J.P. Chamoli (P.W.4) are the formal witnesses. 12. Nathi Singh (P.W.5) is the witness who visited the village of the deceased and came to know that Sauna Devi was missing and her husband is searching her. This witness has stated that two persons came to the house of Kiri Devi (P.W.6) – mother of the deceased and then he went to the village of the deceased and came to know that there that Sauna Devi had died by hanging in the forest and her dead body was lying on the earth. This witness has stated that all the persons assembled at the spot were discussing that it was a false case and after murdering Sauna Devi, the rope was placed in the 6 neck of the deceased. But this witness was not present at the time of the arrival of Sub-Inspector at the spot. Moreover, the evidence of this witness is not going to connect the accused/appellant directly with the commission of crime. 13. However, Kiri Devi (P.W.6) is the mother of the deceased who has stated in her deposition that marriage of Sauna Devi was solemnized with the accused two years before and when Sauna Devi came to her parental house, she made a complaint to her that her husband used to commit Marpit with her in a drunken condition. This witness has specifically stated in her cross-examination that except the Marpit being committed by Sumer Singh to his wife, there was no other complaint from the side of the deceased. L.S. Shukla (P.W.7), Pyarelal (P.W.8), Bhagwan Singh Bisht(P.W.9) and Genda Singh Verma (P.W.10) are again the formal witnesses. 14. Having considered the entire material available on record, we are definitely of the view that there is no direct evidence available which may connect the accused with the commission of the murder of his wife. The evidence indicating towards the guilt of the deceased only on the basis of the doubt which cannot be a circumstance for warranting the conviction under Section 302 of I.P.C. It is the burden of the prosecution to establish the guilt of the accused/appellant beyond the reasonable doubt. 15. As far as this circumstance that the appellant used to commit Marpit with the deceased in a drunken state is concerned, the same is also doubtful, because of the reason that the two independent witnesses produced by the prosecution have not supported the prosecution case on the point of Marpit be committed by the accused with his wife 7 (deceased). The only evidence available on record is Kiri Devi (P.W.6) mother of the mother of the deceased – Sauna Devi who has stated that accused used to commit Marpit with his wife in a drunken state. It is thus very much clear that there is neither any demand of dowry from the side of the accused nor any other evidence, which indicates the guilt of the accused that he, in fact, committed the murder of his wife. 16. As far as the motive is concerned, again the prosecution has utterly failed in establishing the same. The prosecution has not come forward with regard to this aspect that the accused has in fact any motive to commit the crime of murder. The rest of the evidence which has been produced by the prosecution is not also worthy credence, and does not suggest anywhere that the conviction can be based on the basis of the same. 17. The evidence of Dr. J.P. Chamoli would also be relevant who has been produced by the prosecution as P.W.4. This witness has specifically stated that there was a ligature mark around the neck of the deceased. He found on internal examination that there was blood on the soft tissues beneath the ligature mark and the hyoid bone was also fractured. The doctor in his cross-examination has specifically stated that in case, someone strangulates the deceased then this type of injuries would not be caused. He has also stated that the deceased could die on account of asphyxia by tying the rope around the neck. 18. The evidence of the doctor rules out this possibility that the deceased might have been murdered by pressing the neck and then was hanged by anyone on the tree in the forest. Therefore, we are of the considered view that there is no 8 plausible and reasonable evidence available on record, which may connect the accused with the commission of murder of his wife – Sauna Devi. 19. Sri S.S. Adhikari, learned A.G.A. for the State has submitted that the evidence of Marpit being committed by the accused with his wife is available on record and then under these circumstances, the accused could be convicted under Section 306 of I.P.C. 20. We fail the appreciate this argument on the ground that firstly, the question of Marpit being committed by the accused with his wife becomes doubtful in the light of the evidence of Inder Singh (P.W.1) and Dharam Singh (P.W.2) who had been declared hostile on this point. It is the mere deposition of Kiri Devi (P.W.6) who is the mother of the deceased on the point of the Marpit being committed by the accused with his wife in a drunken state. This type of evidence is not supported by any other plausible witness. Further mere Marpit being committed by the accused with his wife in a drunken state does not bring the offence within the ambit of Section 306 of I.P.C. In order to make the picture clear, the definition of Section 306 of I.P.C. would be relevant, which reads as follows:- “306 Abetment of suicide – If any person commits suicide whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.” 21. This definition itself indicates that the appellant involves a mental process of instigating a person or 9 intentionally aiding that person or intentionally aiding that person in doing of a thing. In cases, of conspiracy also it would involve that mental process of entering into conspiracy for doing of that thing. More active role which can be described as instigating or aiding the doing of a thing is required before a person can be said to be abetting the commission of offence under Section 306 I.P.C. The offence of abetment is a separate and distinct offence provided in the Act. A person, abets the doing of a thing when (a) he instigates any person to do that thing; or (b) engages with one or more other persons in any conspiracy for the doing of that thing; or (c) intentionally aids, by act or illegal omission, the doing of that thing. Therefore, these things are essential to complete abetment of a crime. The word ‘instigate’ literally means to provoke, incite, urge on or bring about by persuasion to do any thing. The abetment may be by instigation, conspiracy or intentional aid, as provided in the three clauses of Section 107. Therefore, in cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. The mere fact that the husband uses to commit Marpit with the deceased in a drunken state is not enough. Therefore, in our opinion mere harassment of wife by husband on account of differences or on account of seldom Marpit in a drunken state would not attract Section 306 I.P.C. read with Section 107 I.P.C., if the wife itself suicide. 22. The Hon’ble Apex Court in Bhagwan Das Vs Kartar Singh & others reported in (2007) 11 Supreme Court Cases 205 has held, as follows:- “It often happens that there are disputes and discords in the matrimonial home and a wife is harassed 10 by the husband or her in-laws. This, however, would not by itself and without something more attract Section 306 of I.P.C. read with Section 107 I.P.C. Thus mere harassment of wife by husband due to differences per se does not attract Section 306 read with Section 107 I.P.C., if the wife commits suicide.” 23. For the reasons stated above, we are of the view that the prosecution has utterly failed in establishing the guilt of the accused/appellant beyond reasonable doubt, as we have already expressed our opinion that there is no evidence available on record, which may connect the accused/appellant with the commission of the murder of his wife – Sauna Devi. We have further also expressed our opinion that the case also does not fall within the purview of Section 306 read with Section 107 I.P.C. Therefore, the impugned judgment and order dated 03.05.1997 passed by the learned Sessions Judge, Tehri Garhwal convicting the accused/appellant under Section 302 I.P.C. and sentencing him to life imprisonment is liable to be set aside. 24. Hence, the appeal is allowed. The impugned judgment and order dated 03.05.1997 thereby convicting the accused/appellant under Sections 302 of I.P.C. and sentencing him for life imprisonment is hereby set aside. Accordingly, the accused/appellant is acquitted of the offence under Section 302 I.P.C. levelled against him. The appellant is on bail. He need not surrender. His bail bonds are cancelled and sureties are discharged. (Nirmal Yadav, J.) (B.C. Kandpal, J.) 15.02.2010 ASWAL