IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 222 of 2007 Rajendra Kumar Sharma S/o Shri Pooran Singh Sharma R/o 112, Vijay Nagar Colony N.E.B. Housing Board District Alwar (Rajasthan). ……Appellant (In jail) Versus State of Uttarakhand. .……….Respondent. ALONGWITH Criminal Appeal No. 225 of 2007 Rajendra Kumar Sharma S/o Shri Pooran Singh Sharma R/o 112, Vijay Nagar Colony N.E.B. Housing Board District Alwar (Rajasthan). ……Appellant (In jail) Versus State of Uttarakhand. .……….Respondent. Smt. Pushpa Joshi, Advocate for the appellant. Shri H.C. Pujari, A.G.A. for the State. Coram:Hon’ble Prafulla C. Pant, J. Hon’ble B.S. Verma, J. Oral:-Hon’ble Prafulla C. Pant, J. These two appeals, preferred under Section 374 of Code of Criminal Procedure, 1973 (herein after referred as Cr.P.C.), is directed against the judgment and order 2 dated 29.05.2007/02.06.2007, passed by IInd Additional Sessions Judge, Dehradun in Sessions Trial No. 143 of 2004 and Special Sessions Trial No. 19 of 2004. In Sessions Trial No. 143 of 2004, accused/appellant Rajendra Kumar Sharma, has been convicted under Section 302 of Indian Penal Code, 1860 (herein after referred as I.P.C.), and sentenced to imprisonment for life and also directed to pay fine of Rs. 20,000/-. In Special Sessions Trial No. 19 of 2004, the trial court has convicted accused/appellant Rajendra Kumar Sharma, under Section 8/20 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short N.D.P.S. Act), and sentenced him to imprisonment for a period of six months. Both the cases are decided by a common judgment, by the trial court. 2. Heard learned counsel for the parties and perused the lower court record. 3. Prosecution story in brief is that Smt. Usha Sharma (deceased) got married to accused/appellant Rajendra Kumar Sharma in the year 1988, in Alwar (Rajasthan). Accused/appellant Rajendra Kumar Sharma, was a Upper Division Clerk in Indian Military Academy (for short I.M.A.) Dehradun. He used to live with his wife Usha (deceased), and two children, namely Saurabh (P.W. 14) and Surabhi (P.W. 15), in quarter No. 46/14, Mechanical Lane, I.M.A., Dehradun. Prosecution case is that accused/appellant had illicit relations with some other woman due to which 3 accused/appellant used to quarrel with his wife and beat her. It is also alleged that Angoori Devi (mother- in-law of the deceased) also used to misbehave with the deceased. Complainant Prem Prakash (P.W. 3) lodged First Information Report (Ext. A-4) with police outpost Panditwari, Police Station Cantt., Dehradun, on 25.03.2004, at about 19:35 hours, stating that he received a phone call in the morning (on 25.03.2004), from his brother-in-law Ved Prakash (P.W. 5) that Smt. Usha (sister of the complainant and wife of the accused/appellant) had died. On this, he (complainant) proceeded along with his parents, brothers and other members of family to Dehradun. He saw that Usha was lying on bed and there was blood coming out from her mouth. He (complainant) suspected that accused/appellant Rajendra Kumar Sharma and his mother Angoori Devi have committed murder of Usha in the intervening night of 24th and 25th of March 2004. On the basis of said report, police prepared check report (Ext. A-2) and registered crime No. 05/49 of 2004, against accused/appellant Rajendra Kumar Sharma and his mother Angoori Devi, relating to offences punishable under Sections 302/120 B I.P.C. Before said report was lodged, on that very day (25.03.2004) at 9:30 a.m., accused/appellant Rajendra Kumar Sharma had already given a report at police outpost Panditwari, Police Station Cantt. Dehradun, stating that when he woke up in the morning at 6:30 a.m., he found his wife lying dead. Said report was 4 reported in the general diary as report No. 8. The police went to the spot, took the dead body of Usha in their possession and prepared inquest report (Ext. A-1) at 16:30 hours on 25.03.2004. The dead body was sent for post mortem examination. Dr. R.S. Chauhan (P.W. 13) along with one Dr. R.K. Singh conducted post mortem examination on 26.03.2004 at 2:40 p.m. The team of two Medical Officers in the post mortem examination report (Ext. A-7), prepared by them, recorded that bloody froth was coming out of the mouth of the deceased. There was bleeding from vagina. There were bruises over the face and multiple abrasions over neck and left side of face. Right finger nails were cymosed, while left finger nails were normal. There were multiple marks of bangle over right wrist. The two Medical Officers opined that death of the deceased has been caused by asphyxia as a result of smothering. During investigation, the Investigating Officer P.W. 17 G.P. Bonthiyal, recovered phial of chloroform and 8 tablets of Diazapam, on pointing out of the accused/appellant Rajendra Kumar Sharma. According to the prosecution, the accused/appellant made confessional statement during investigation, having killed his wife. After interrogating the witnesses, the prosecution submitted charge sheet (Ext. A-23) against accused/appellant Rajendra Kumar Sharma and Angoori Devi (Angoori Devi is acquitted by the trial court), for their trial in respect of offence punishable under Section 302/120B. 5 4. Since 8 tablets of Diazapam were recovered on pointing out of the accused/appellant, a separate crime No. 51 of 2004, was registered with police station Cantt, Dehradun, against accused/appellant Rajendra Kumar Sharma, in respect of offence punishable under Section 8/20 N.D.P.S. Act. Said crime was investigated by P.W. 18 Station House Officer Amar Singh Yadav, who submitted charge sheet (Ext. A-24) against accused/appellant Rajendra Kumar Sharma. 5. Magistrate on receipt of the charge sheet (Ext. A-23) after giving necessary copies to the accused, as required under Section 207 Cr.P.C., committed the case to the Court of Sessions for trial of the accused in respect of offences punishable under Section 302/120 B I.P.C. Learned Sessions Judge, Dehradun, on 30.11.2004, framed charge of offence punishable under Section 302 I.P.C. against accused Rajendra Kumar Sharma, who pleaded not guilty and claimed to be tried. As against co-accused Angoori Devi, charge was framed on 01.12.2004, in respect of offence punishable under Section 120 B I.P.C., who also pleaded not guilty and claimed to be tried. Said trial proceeded, as Sessions Trial No. 143 of 2004. The charge sheet (Ext. A-24) was filed before IInd Additional Sessions Judge for the trial of accused/appellant Rajendra Kumar Sharma, in respect of offence punishable under Section 8/20 N.D.P.S. Act. Charge sheet (Ext. A-24) was 6 registered by Additional Sessions Judge, as Special Sessions Trial No. 19 of 2004. After giving necessary copies to the accused, a charge of offence punishable under Section 8/20 N.D.P.S. Act was framed against accused/appellant Rajendra Kumar Sharma on 27.01.2005, who pleaded not guilty and claimed to be tried. Thereafter, both the trial were proceeded with by IInd Additional Sessions Judge and consolidated and prosecution got examined P.W. 1 Virendra Singh Rana (witness of the inquest report), P.W. 2 Satish Chand (scribe of the First Information Report), P.W. 3 Prem Prakash Sharma, complainant (declared hostile), P.W. 4 Ganeshi Lal (declared hostile), P.W. 5 Ved Prakash (declared hostile), P.W. 6 Sant Lal, father of the deceased (declared hostile), P.W. 7 Gajanand, brother of the deceased (declared hostile), P.W. 8 Shanti Devi, sister-in-law of the deceased (declared hostile), P.W. 9 Subhash Chand (declared hostile), P.W. 10 Urmila, sister of the deceased (declared hostile), P.W. 11 Krishna Devi (declared hostile), P.W. 12 Jang Kumar (witness of the inquest report), P.W. 13 Dr. R.S. Chauhan (who conducted post mortem examination), P.W. 14 Saurabh Sharma, son of the deceased (declared hostile), P.W. 15 Surabhi Sharma, daughter of the deceased (declared hostile), P.W. 16 Sub-Inspector Surendra Singh Bhandari, P.W. 17 Ganesh Prasad Bonthiyal (Investigating Officer), P.W. 18 Amar Singh Yadav (who completed the investigation in connection with N.D.P.S. Act case), P.W. 19 Constable Rajendra 7 Prasad and P.W. 20 Sub-Inspector Mahendra Singh (who started investigation of N.D.P.S. Act case). The oral and documentary evidence was put to the accused/appellant Rajendra Kumar Sharma, under Section 313 Cr.P.C. in reply to which he alleged the same to be false. It is pleaded by the accused/appellant that the police has falsely implicated him in the case. It is further pleaded that he had honestly reported the matter to the police and before that he called doctor to see his wife. However, no evidence in defence was adduced. After hearing the parties, the trial court found charge against accused Angoori Devi (another accused) was not proved and she was acquitted of the charge framed against her. But, as to the accused/appellant, Rajendra Kumar Sharma, he was found guilty by the trial court on both the charges i.e. 302 I.P.C. and 8/20 N.D.P.S. Act. After hearing the parties, the convict was sentenced to imprisonment for life under Section 302 I.P.C. and further directed to pay a fine of Rs. 20,000/- on that count. On the charge of offence punishable under Section 8/20 N.D.P.S. Act, the convict was sentenced to imprisonment for a period of six months. Aggrieved by said judgment and order dated 29.05.2007 (date of conviction)/ 02.06.2007 (date of sentence), this appeal was filed by the accused/appellant Rajendra Kumar Sharma, who is in jail. 8 6. Before further discussions, we think it just and proper to mention the ante mortem injuries, recorded by P.W. 13 Dr. R.S. Chauhan, who conducted post mortem examination with one Dr. R.K. Singh on the dead body of Smt. Usha Sharma on 26.03.2004, and prepared autopsy report (Ext. A-7). The condition of the body and ante mortem injuries, recorded in the autopsy report, are being reproduced below:- 1. Bloody froth coming out of mouth. Lips livid. Bleeding from vagina. Bruises present over face, multiple abrasions over chin and left cheek, below left eye and away from nose, over left cheek. These abrasions look like nail marks. Bruises over front of neck and left side of face, left side neck. Right finger nails are cymosed, while left finger nails are normal. Multiple marks of bangle over right wrist and forearm present. On internal examination, membranes were found congested, lungs were found congested, spleen congested and Gall bladder congested. In the opinion of the team of Medical Officers, as expressed in the autopsy report (Ext. A-7), cause of death of the deceased was asphyxia as a result of smothering. From the medical evidence on record, as discussed above, it is established that Usha Sharma (wife of the accused/appellant) had died an unnatural/homicidal death. The question before us is whether the accused/appellant had committed murder of his wife Usha Sharma. We have also to examine whether the 9 accused/appellant is guilty of charge of offence punishable under Section 8/20 N.D.P.S. Act. 7. P.W. 1 Virendra Singh Rana, is a colleague of accused/appellant Rajendra Kumar Sharma in I.M.A. Dehradun. He has simply stated that accused/appellant used to live with his wife (deceased) and two children. He has further stated that on 25.03.2004, accused/appellant called him and asked to see as to what had happened to his wife. This witness has further stated that inquest report (Ext. A-1) was prepared in his presence. His statement does not throw any light as to the fact whether accused/appellant Rajendra Kumar committed murder of his wife or not. 8. P.W. 2 Satish Chand, Assistant Clerk in outpost Police Station Panditwari, who has simply stated that scribe of report (Ext. A-3) was made in his presence. His testimony also does not throw any light as to the participation of commission of crime by accused/appellant Rajendra Kumar Sharma. 9. P.W. 3 Prem Prakash Sharma, is complainant and brother of the deceased. He has stated that his sister Usha (deceased) used to live with the accused/appellant Rajendra Kumar along with two children, namely Saurabh and Surabhi, aged 15 years and 20 years in I.M.A. This witness further states that 10 he received information on 25.03.2004, relating to homicidal death of Usha and he further told the court that he came to doctor on receiving the information along with his parents and brothers. The witness further states that he lodged First Information Report (Ext. A-4) with the police, on the dictation of the police. The witness was got declared hostile by the prosecution, as he did not support the prosecution case, that he made allegations against the accused/appellant in the First Information Report, on his volition. 10. P.W. 4 Ganeshi Lal, has stated before the court that no confession was made in his presence by accused Rajendra Kumar Sharma. As such, this witness is also declared hostile by the prosecution, as he did not support its case. 11. P.W. 5 Ved Prakash is brother-in-law (SADU) of accused/appellant Rajendra Kumar Sharma, and he too did not support the prosecution case and got declared hostile. 12. P.W. 6 Sant Lal, father of the deceased, has stated that his daughter Usha got married to accused Rajendra Kumar Sharma about 18 years before the incident. They had two children. He got information about death of Usha through Prem Prakash (P.W. 3). He has further stated that he had no knowledge that 11 accused Rajendra Kumar Sharma had any illicit relation with anyone or that the deceased was subjected to harassment at the hands of the accused. As such, this witness also got declared hostile, as he did not support the prosecution case. 13. P.W. 7 Gajanand, brother of the deceased, simply stated that accused/appellant is his brother-in-law and he has two children named Saurabh (P.W. 14) and Surabhi (P.W. 15). He further told that he reached Dehradun only after post mortem examination had been conducted. He further told that he had no knowledge that how his sister had died. As such, this witness is also declared hostile, as he did not support the prosecution case. 14. P.W. 8 Shanti Devi is sister-in-law (BHABHI) of the deceased. This witness has stated that accused Rajendra Kumar Sharma and his wife had good relations. The witness further states that she came to Dehradun on receiving information of death of Usha. This witness was also got declared hostile, as she did not support the prosecution case. 15. P.W. 9 Subhash Chand is also a relative of the deceased, who has simply stated that he came to know about death of Usha but did not see her face. This witness also got declared hostile by the prosecution, as he did not support the prosecution case. 12 16. Similarly, P.W. 10 Smt. Urmila, sister of the deceased also did not support the prosecution case and got declared hostile. 17. P.W. 11 Smt. Krishna, another sister-in-law (BHABHI) of the deceased told that Usha never told on phone that her husband (accused) had any illicit relation with anyone. This witness is also declared hostile by the prosecution, as she did not support its case. 18. P.W. 14 Saurabh Sharma, aged 16 years, is son of the deceased, who used to live with his parents (deceased and accused) in I.M.A. quarter at Dehradun. The witness states that he along with his parents and sister (Surabhi) saw Indo-Pak match on T.V. till 9:30 p.m. on 24.03.2004. Whereafter they took meal and slept. He has further stated that he along with his father (accused Rajendra Kumar Sharma) slept in one room, while his mother, along with his sister (P.W. 15) slept in another room. This witness has further stated that he does not have knowledge that his father had any relationship with a woman named Sangeeta. There was no quarrel between his mother and father for any such reason. The witness further told that his mother (deceased) used to take drugs. This witness was also got declared hostile by the prosecution. In our opinion Saurabh (P.W. 14) is an important witness 13 of this case, as he used to live in the house with his parents (accused/appellant and deceased) and non corroboration of prosecution story on his part creates a serious doubt, as to the truthfulness of the prosecution story and as to the manner in which the offence is said to have committed by the accused/appellant. 19. Not only P.W. 14 Saurabh Sharma (son of the deceased) but also P.W. 15 Surabhi Sharma (daughter of the deceased) has stated that she did not know any woman named Sangeeta, working in the office of her father. This witness (P.W. 15 Surabhi, daughter of the deceased) has also stated that there was no quarrel in the family between her mother and father due to any woman named Sangeeta. P.W. 15 Surabhi, daughter of the deceased, has further stated that his mother (deceased) used to take drugs for 1 ½ years. She has further corroborated the statement of his brother Saurabh Sharma (P.W. 14) that on 24.03.2004, before going to sleep, all the four members of the family watched Indo-Pak match on T.V. The witness further told that when she woke up in the next morning, she found her mother lying dead and her father had gone to call doctor. She has categorically stated that her father (accused/appellant Rajendra Kumar Sharma) has not committed murder of her mother (Usha Sharma). This witness is also declared hostile. 14 20. After going through the statement of P.W. 15 Surabhi, daughter of the deceased, aged 13 years, the entire prosecution story that accused Rajendra Kumar Sharma committed murder of Usha Sharma, gets demolished, as she was the most natural witness, who could have thrown light on the role of his father in commission of the crime. 21. P.W. 12 Jang Kumar and P.W. 16 Sub Inspector Surendra Singh Bhandari, are witnesses of the inquest report and their evidence is of formal nature. P.W. 17 Ganesh Kumar Bonthiyal, is the Investigating Officer. 22. P.W. 18 Amar Singh Yadav, P.W. 19 Rajendra Prasad, and P.W. 20 Sub-Inspector Mahendra Singh, are witnesses relating to a case registered under Section 8/20 N.D.P.S. Act. No public witness has supported the prosecution story that diazepam or chloroform was recovered from the possession of, or on pointing out of appellant. Regarding eight tablets of diazapam, there is sufficient evidence on record that the deceased used to take sleeping drugs. P.W. 13 Dr. R.S. Chauhan, in his cross examination, has stated that in a disease of sleeping disorder, at time patient die while sleeping. The witness further told in the cross examination that if such patient sleeps in curved posture on pillow, there is danger of his death in such situation. 15 23. In view of the above discussion, we are of the view that prosecution has neither proved charge of offence punishable under Section 302 I.P.C., nor the one relating to offence punishable under Section 8/20 N.D.P.S. Act, against accused/appellant Rajendra Kumar Sharma, beyond reasonable doubt. He is entitled to the benefit of reasonable doubt in the above circumstances of the case. Therefore, these appeals deserve to be allowed. Both the appeals are allowed. The impugned judgment and order dated 29.05.2007/02.06.2007, passed by IInd Additional Sessions Judge, in Sessions Trial No. 143 of 2004 and Special Sessions Trial No. 19 of 2004, is set aside. Conviction and sentence, recorded against accused/appellant Rajendra Kumar Sharma, by the trial court is also set aside. Accused/appellant Rajendra Kumar Sharma is acquitted of the charge of offence punishable under Section 302 I.P.C. and one punishable under Section 8/20 N.D.P.S. Act. He is in jail. He shall be set at liberty, if not required to be detained in connection with any other case. Registry is directed to send copy of this judgment to the Superintendent of jail concerned. The trial court record be sent back. (B.S. Verma, J.) (Prafulla C. Pant, J.) Dt:02.07.2009 Sweta 16 17 18 19 20 21