IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 812 of 2001 (Old No. 152 of 2000) 1. Kishan Singh S/o Sansiya 2. Bhotiya S/o Sansiya 3. Maya Ram s/o Sansiya All residents of Village Siradi, P.S. Kalsi, District Dehradun. ...…………. Appellants Versus State of U.P. (now State of Uttarakhand) ...…………. Respondent Mr. Vinod Sharma, Advocate, present for the appellants. Mr. Prabhakar Joshi, Brief Holder, present for the State. Coram : Hon’ble Prafulla C. Pant, J. Hon’ble Sudhanshu Dhulia, J. Hon. Prafulla C. Pant, J (oral) This appeal, preferred under Section 374 of the Code of Criminal Procedure, 1973 (for short Cr.P.C.), is directed against the judgment and order dated 2 21.01.2000, passed by Addl. Sessions Judge (UMC), Dehradun, in Sessions Trial No. 03 of 1998, whereby said court has convicted appellants Kishan Singh and Bhotiya under Section 302 of the Indian Penal Code, 1860 (for short I.P.C.), and under Section 201 of I.P.C. Accused / appellant Maya Ram has been convicted under Section 120-B of I.P.C. Each one of the appellants Kishan Singh and Bhotiya has been sentenced to imprisonment for life and directed to pay fine of ` 10,000/- under Section 302 of I.P.C. Each one of them has been further sentenced to imprisonment for life under Section 201 of I.P.C. (i.e. more than the maximum sentence prescribed under law). Accused / appellant Maya Ram has been sentenced to rigorous imprisonment for a period of two years under Section 120-B (read with Section 302) of I.P.C. (i.e. less than the sentence prescribed under Sub Section (1) of Section 120-B of I.P.C.). 2) Heard learned counsel for the parties and perused the lower court record. 3) Prosecution story, in brief, is that Bimla Devi (deceased), daughter of P.W. 1 Ramu, got married to Kishan Singh (D.W. 2 / accused / appellant). A son was born out of said wedlock. Accused / appellants Maya Ram, Kishan Singh and Bhotiya are brothers. Prosecution’s case is that after birth of son, Bimla Devi came to her parental house, and complained that her 3 brother-in-law accused / appellant Bhotiya wants to establish sexual relations with her. She lived in her paternal house for about a month, where after accused / appellant Maya Ram came to take her back to her husband’s house. It is alleged by the prosecution that on making promise by Maya Ram that Bimla Devi will not be subjected to advancements made by Bhotiya in future, and she will be kept in Siradi not in Ramgarh, parents of Bimla Devi let her go with Maya Ram to her in-laws place. However, on 16.01.1997, her body was found hanging in her house in Ramgarh. Suspecting that accused / appellants Kishan Singh, Maya Ram and Bhotiya (all three brothers) committed murder of Bimla Devi, after a conspiracy, first information report (Ext. A –1) was given by P.W. 1 Ramu at police station Kalsi, District Dehradun, on 17.01.1997, at 12:35 hours. On the basis of said report police registered Crime No. 07 of 1997, relating to offences punishable under Section 302 and 201 of I.P.C. against the three accused / appellants, namely Maya Ram, Kishan Singh and Bhotiya. The crime was investigated by P.W. 11 Inspector Brijpal Singh Solanki. Police took dead body of Bimla Devi in their possession on 17.01.1997, and prepared inquest report (Ext. A –2), and other necessary papers. The dead body was sent for postmortem examination. P.W. 9 Dr. Gopal Swaroop conducted postmortem examination on dead body of Bimla Devi on 18.01.1997, at 03:00 P.M. He recorded a ligature mark over the neck of the dead body, and an abraded 4 contusion over chin, as ante mortem injuries in the autopsy report (Ext. A –3A). The Investigating Officer interrogated the witnesses, inspected the spot, prepared site plan, and submitted charge sheet (Ext. A –6) against all the three accused, namely Kishan Singh, Maya Ram and Bhotiya, for their trial in respect of offences punishable under Section 302 and 201 of I.P.C. 4) The Chief Judicial Magistrate, Dehradun, on receipt of the charge sheet, after giving necessary copies to the accused, as required under Section 207 of Cr.P.C., committed the case to the court of sessions, for trial. Learned Addl. Sessions Judge (UMC), Dehradun, on 17.08.1998, after hearing the parties, framed charge of offences punishable under Section 302 / 34 and 201 / 34 of I.P.C., to which the accused / appellants pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1 Ramu (informant and father of the deceased); P.W. 2 Sheela Chauhan; P.W. 3 Monu; P.W. 4 Pano; P.W. 5 Kiko Devi (mother of the deceased); P.W. 6 Ghamadu (cousin of the deceased); P.W. 7 Harban Das (witness of preparation of inquest report); P.W. 8 Tikam Singh; P.W. 9 Dr. Gopal Swaroop (who conducted the postmortem examination); P.W. 10 Sub Inspector Ashok Kumar Tyagi (who arrested the accused), and P.W. 11 Inspector Brijpal Singh Solanki (who investigated the crime). The oral and documentary evidence was put to 5 the accused under Section 313 of Cr.P.C., in reply to which they alleged that evidence adduced against them was false. It has been pleaded by the accused / appellants that Bimla was married jointly to Kishan and Bhotiya (There appears to be a custom of Polyandry in the Chakrata Tehsil of District Dehradun). In defence D.W. 1 Sukh Ram and D.W. 2 Kishan Singh were got examined, who have stated that there was custom of polyandry in the area, and Bimla was married to both the brothers Kishan Singh and Bhotiya. After hearing the parties, the trial court found that prosecution has successfully proved charge of offences punishable under Section 302 and 201 of I.P.C against accused / appellants Kishan Singh and Bhotiya, and that of one punishable under Section 120-B of I.P.C. against accused / appellant Maya Ram (though there was no charge framed of said offence). After hearing on sentence, each one of the convicts / appellants Kishan Singh and Bhotiya were sentenced to imprisonment for life under Section 302 of I.P.C. and directed to pay fine of ` 10,000/-. Each one of them was further sentenced to imprisonment for life under Section 201 of I.P.C. (i.e. more than the sentence prescribed under Section 201 of I.P.C.). The trial court convicted accused / appellant Maya Ram under Section 120-B of I.P.C (though no such charge was framed), and sentenced him to rigorous imprisonment for a period of two years (less than the sentence prescribed under Sub Section (1) of Section 120-B of I.P.C.). Aggrieved by said 6 judgment and order dated 21.01.2000, passed by Addl. Sessions Judge (UMC), Dehradun, in Sessions Trial No. 03 of 1998, this appeal was filed by the convicts before the Allahabad High Court on 31.01.2000, where the same was admitted on 01.02.2000. The appeal is received by transfer to this court under Section 35 of the U.P. Re-organization Act, 2000 (Central Act No. 29 of 2000), for its disposal. 5) Before further discussion, we think it just and proper to mention here the ante mortem injuries found on the dead body of Bimla Devi by P.W. 9 Dr. Gopal Swaroop, at the time of postmortem examination. The ante mortem injuries as mentioned in the autopsy report (Ext. A –3A) are reproduced below:- “i) Ligature mark 23 cm X 1 cm around the neck…………………Gap between the two ends was 12 cm over back of the neck. ii) Abraded contusion ½ cm X 1 cm over the chin.” According to the Medical Officer, the deceased had died due to asphyxia, as a result of ante mortem injury No. (i). P.W. 9 Dr. Gopal Swaroop has further stated that deceased could have died on 16.01.1997, after 09:00 and before 02:30 P.M. In cross-examination the witness has clearly stated that the deceased had not died of strangulation. The medical evidence adduced by P.W. 9 Dr. Gopal Swaroop read with the autopsy 7 report suggests that Bimla Devi committed suicide by hanging herself, but the charge against the accused / appellants relates to offences punishable under Section 302 read with Section 34, and 201 read with Section 34 of I.P.C. Now, we have to see whether the prosecution has proved the charge against the accused / appellants, or not. 6) P.W. 1 Ramu, father of the deceased, is the informant. He is not an eyewitness. He has stated that after marriage of Bimla Devi with accused / appellant Kishan Singh, a son was born where after she came back to her parental house, and complained that her brother-in-law accused / appellant Bhotiya wants to establish sexual relations with her. She has further stated that she lived for about one month in her parental house, and when her brother-in-law accused / appellant Maya Ram came to take her, Bimla Devi was allowed to go with him only after he (Maya Ram) promised that she would not be subjected to sexual harassment, complained by her. However, he has stated that on 16.01.1997, Maya Ram, Kishan Singh and Bhotiya had hanged Bimla Devi with a rope, and killed her. This statement made by the witness is based on his suspicion, as he was not in Village Ramgarh where the incident had occurred. P.W. 1 Ramu has further proved the first information report (Ext. A –1) lodged by him, and the inquest report (Ext. A –2) prepared in his presence. From his statement it cannot be said that 8 accused / appellants Kishan Singh, Bhotiya or Maya Ram have committed murder of Bimla Devi. 7) P.W. 2 Sheela Chauhan has stated that on the day of incident, accused / appellant Bhotiya when came to his house around 02:30 P.M., he saw Bimla Devi hanging through a rope, and he shouted for help, on which she went to the spot, and Bhotiya brought down the dead body of Bimla after untying the rope. This witness (P.W. 2 Sheela Chauhan) at the end of her examination states that Maya Ram was not in the house on that day, nor he used to live in the hut where Kishan Singh, Bhotiya and Bimla Devi lived. From her statement also nothing has come out which indicates that accused / appellants Maya Ram, Bhotiya or Kishan Singh committed murder of Bimla Devi or caused disappearance of her body. 8) P.W. 3 Monu has corroborated the statement of P.W. 1 Ramu relating to the fact that when Maya Ram promised that Bhotiya will not attempt to establish forcible relation with Bimla, she was allowed to go with him. P.W. 4 Pano has also corroborated the same fact. P.W. 5 Smt. Kiko Devi (mother of the deceased) has also led evidence only on the fact that when her daughter Bimla Devi came to her house after birth of her son, she complained that her brother-in-law Bhotia wanted to have sexual relations with her, and she was 9 allowed to go with Maya Ram only after he took responsibility that she will not be asked to stay in Ramgarh. P.W. 6 Ghamadu, cousin of the deceased, has also led evidence only on that point. 9) P.W. 7 Harban Das is witness of preparation of inquest report, and he has stated that inquest report was prepared in his presence, and rope (Ext. 1) was taken by the police in his presence. This witness in his cross- examination states that accused / appellants Kishan Singh, Bhotiya and Bimla Devi used to live together happily. Similar evidence was adduced by P.W. 8 Tikam Singh, another neighbour of the deceased. He has further stated that accused / appellant Bhotiya had no intention to establish illicit relation with Bimla Devi. It is strange that after this statement of the prosecution witness, the prosecution has still placed reliance on his statement, and he was not got declared hostile. At the end of the cross-examination, this witness (P.W. 8) also states that Bimla used to come almost every day in his house, and never complained about the conduct of Bhotiya or Kishan Singh. He has further stated that all the three used to live happily. 10) In the above circumstances, it cannot be said that prosecution has proved either commission of murder of Bimla Devi by accused / appellants, or that they caused disappearance of evidence to save themselves. It is also pertinent to mention here that 10 D.W. 1 Sukh Ram and D.W. 2 Kishan Singh have stated that in the area of Ramgarh there was a custom of Polyandry and a woman used to get married to all the brothers of one family. Assuming for a moment that there is no such custom of Polyandry in the area, even then evidence adduced by prosecution is not sufficient either to prove charge of offence punishable under Section 302 / 34 or that of Section 201 / 34 of I.P.C., or Section 120-B of I.P.C. against the accused / appellants. 11) Therefore, the appeal is allowed. The impugned judgment and order dated 21.01.2000, passed by Addl. Sessions Judge (UMC), Dehradun, in Sessions Trial No. 03 of 1998, is hereby set aside. Accused / appellants Kishan Singh, Bhotiya and Maya Ram are acquitted of the charge of offences punishable under Section 302, 201 and 120-B of I.P.C. They are on bail. They need not to surrender. Their bail bonds are cancelled and sureties stand discharged. Lower court record be sent back. (Sudhanshu Dhulia, J.) (Prafulla C. Pant, J.) Dt. December 28, 2010. H. Negi