Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 1741 of 2001 (Old No. 650 of 1994) Ajay Mishra S/o Chandra Shekhar Mishra, R/o Chandi Chowk, Cuttack, P.S. Lal Bagh, District Cuttack, Orissa. …………Appellant. Versus State .…………Respondent. Sri S.K. Aggarwal, Senior Advocate, assisted by Sri Arvind Vashistha, Advocate, and Sri S.S. Bhandari, Advocate, for the appellant. Sri Tanuj Semwal, A.G.A., for the State-respondent. Hon’ble Prafulla C. Pant, J. Hon’ble B.S. Verma, J. [Per- Hon’ble Prafulla C. Pant, J.] This appeal, preferred under Section 374 of Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), is directed against the judgment and order dated 28.04.1994, passed by learned Sessions Judge, Dehradun, in Sessions Trial No. 114 of 1990, whereby accused / appellant 2 Ajay Mishra has been convicted under Section 302 of Indian Penal Code, 1860 (hereinafter referred as I.P.C.), and sentenced to imprisonment for life. (2) Heard learned counsel for the parties and perused the trial court’s record. (3) Prosecution story, in brief, is that accused / appellant Ajay Mishra got married to Ashima Bala Mishra on 30th June 1989 in Orissa. Both accused and deceased belong to Orissa. On 19.06.1990, the two came to Rishikesh and stayed in Hotel Basera, in room No. 102. In the intervening night of 19th / 20th June 1990 at about 00.30 hours, P.W.1 Sanjay Gupta, a house keeper of the Hotel, was cleaning tiles, when accused Ajay Mishra came down at Reception Counter, from first floor and told that his wife was in a serious condition and sought help to take his wife to Hospital. P.W.3 Dev Ashish was on the reception duty, and one Govind Singh Bisht and Munshi Singh were on duty as night waiters. On hearing Ajay Mishra, regarding his wife’s condition, P.W.1 Sanjay Gupta and others went to room No. 102 and saw that wife of accused / appellant Ajay Mishra, was lying in the bathroom. She was immediately picked up from there and taken in a three wheeler, bearing Registration No. URM 8876, to nearby hospital of P.W.4 Dr. C.L. Kohli. On being requested, Dr. Kohli came out of 3 his clinic and checked up Ashima Bala (deceased) and declared her brought dead. According to the prosecution case, Ajay Mishra got nervous and told that his wife is daughter of a Member of Parliament (Rajya Sabha) and he would not be able to conceal her death. He confessed that he had administered Potassium Cyanide to his wife and asked the Hotel Staff to take him to Police Station. P.W.1 Sanjay Gupta lodged First Information Report (Ext.A-1) with Police Station, Rishikesh, at 2.40 A.M. on 20.06.1990, against accused Ajay Mishra, which was registered as Crime No. 337 of 1990, relating to offence punishable under Section 302 I.P.C.. P.W.12 Inspector Ram Babu Singh took up the investigation and interrogated the witnesses, who had come to the Police Station with P.W.1 Sanjay Gupta. Accused was also accompanying the witnesses at the time of lodging of the First Information Report. Thereafter, the Police took the dead body of deceased (Ashima Bala) in their possession and prepared inquest report (Ext.A-11) at 6.00 A.M.. The Police further prepared other documents like Police Form No. 13 (Ext.A-14), sketch of the dead body (Ext.A-15), and letter to Chief Medical Officer (Ext.A-16). Dead body was sent in a sealed cover for postmortem examination through P.W.10 Constable Tej Pratap Mishra and Constable Naresh Pal for postmortem examination. P.W.7 Dr. Surat Singh Aswal conducted 4 postmortem examination on the dead body of Ashima Bala Mishra on the very day i.e. 20.06.1990, at about 3.30 P.M., and prepared autopsy report (Ext.A-8). No ante mortem injury was found by the Medical Officer. On internal examination, the Medical Officer found that there was a gravid male foetus, 16cm in length, in the uterus. As to cause of death P.W.7 Dr. Surat Singh Aswal mentioned in his report that the same could not be ascertained, and preserved viscera. The viscera was sent in a sealed condition through P.W.11 Constable Shishupal Singh to the forensic laboratory, Agra. P.W.8 Dr. S.C. Sharma, a Scientific Officer of forensic laboratory, after chemical examination, gave a report (Ext.A-9). Though he found Organo Chloro Insecticide as poisonous matter in five parts of viscera, but as to the Potassium Cyanide, he gave a negative report. During investigation from room No. 102 of the hotel, Police recovered five capsules of ‘30 plus’, one strip of perinorm, some papers and letters, including the one written in Oriya, and a memorandum (Ext.A-2) was prepared by the Police in the presence of Ashok Kumar Pandey and others. P.W.12 Inspector Ram Babu Singh, Investigating Officer also went to Cuttack to make necessary inquires from relatives of the deceased and also took copy of First Information Report (Ext.A-21) lodged by P.W.5 Akshay Kumar Panda, 5 father of the deceased, in Orissa, relating to offence punishable under Sections 498-A, 304-B I.P.C. and one punishable under Section 4 of Dowry Prohibition Act, 1961, against Ajay Mishra, his father Chandra Shekhar Mishra and others on 10.07.1990 i.e. 20 days after the death of Ashima Bala. After completion of investigation, the Investigating Officer submitted charge sheet (Ext.A- 25) against accused Ajay Mishra, relating to offence punishable under Sections 498-A, 304-B I.P.C. and one punishable under Section 3/4 Dowry Prohibition Act, 1961. (4) The Chief Judicial Magistrate, Dehradun, directed to register the charge sheet on 14.09.1990, and, 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. On 11.12.1990, learned Sessions Judge, Dehradun, after hearing the parties, framed charge of offence punishable under Section 4 of Dowry Prohibition Act, 1961, and also relating to the offences punishable under Sections 498-A and 304- B I.P.C, to which the accused pleaded not guilty and claimed to be tried. Thereafter, while examination of the witnesses was in progress, on 13.07.1993, learned Sessions Judge, Dehradun, framed additional charge of offence punishable under Section 302 I.P.C. against accused Ajay 6 Mishra, who pleaded not guilty to said charge also and claimed to be tried. Prosecution got examined P.W.1 Sanjay Gupta, complainant and house keeper of Hotel Basera, Rishikesh; P.W.2 Ashok Kumar Bhatt, witness of recovery of articles from room No. 102 of the Hotel; P.W.3 Dev Ashish, receptionist of the Hotel; P.W.4 Dr. C.L. Kohli, to whom the Hotel Staff and accused took Ashima Bala (deceased) and who declared her brought dead; P.W.5 Akshay Kumar Panda, father of the deceased; P.W.6 Chakradhar Behra, in whose presence father of the accused said to have demanded Rs.1,00,000/- from father of the deceased; P.W.7 Dr. Surat Singh Aswal, who conducted postmortem examination on the dead body of the deceased; P.W.8 Dr. S.C. Sharma, who examined the viscera in the forensic laboratory, Agra; P.W.9 Head Constable Bagesh Kumar Sharma, who prepared check report (Ext.A-11) on the basis of the First Information Report at the Police Station; P.W.10 Constable Tej Pratap Mishra, who took the dead body in a sealed condition for postmortem examination; P.W.11 Constable Shishupal Singh, who filed his affidavit that he took sealed articles of viscera for chemical examination to Agra, and P.W.12 Inspector Ram Babu Singh, who investigated the crime. All the oral and documentary evidence was put to the accused, under Section 313 Cr.P.C.. In reply to the queries, 7 the accused admitted having got married to Ashima Bala on 30th June 1989. He also admitted the fact that at the time of death, deceased was pregnant. He has also admitted that in the intervening night of 19.06.1990 and 20.06.1990, he was staying in Hotel Basera, Rishikesh, in room No. 102, and after midnight he came down at the reception counter in a nervous condition and asked the Hotel Staff to arrange Ambulance or some vehicle to take Ashima Bala to Hospital. He also admitted that in three wheeler, bearing Registration No. URM 8876, he took his wife along with the Hotel Staff to nearby hospital of Dr. C.L. Kohli, where she was declared brought dead. However, he denied having confessed commission of murder of his wife, by poisoning her. He has admitted that capsules, diary and papers were recovered by the Police from room No. 102 of the Hotel, on the basis of which recovery memo (Ext.A-2) was prepared. He has also stated in his examination, under Section 313 Cr.P.C., that the postmortem report of the deceased and report of the forensic expert on viscera are correct. However, he has alleged the remaining evidence as false. It appears that the accused after seeking permission under Section 315 Cr.P.C. got himself examined as D.W.1 Ajay Kumar Mishra in his defence, and also got examined D.W.2 Prashant Kumar Behra, an Oriya knowing resident of Dehradun, who filed translation (Ext.B-2) of Ext.A-7 in the Court. After 8 hearing the parties the trial court found accused Ajay Mishra not guilty of charge of offence punishable under Section 304-B I.P.C. and acquitted of the same. It also discharged the accused relating to offence punishable under Section 4 of Dowry Prohibition Act, 1961, and that of one punishable under Section 498-A I.P.C.. However, the trial court found accused Ajay Mishra guilty of charge of offence punishable under Section 302 I.P.C.. After hearing the parties on sentence, the convict Ajay Mishra was sentenced to imprisonment for life. Aggrieved by said judgment and order dated 28.04.1994, passed by learned Sessions Judge, Dehradun, in Sessions Trial No. 114 of 1990, the convict filed this appeal before Allahabad High Court on 3rd May 1994, where it was admitted on 10th May 1994. The appeal is received by this Court under Section 35 of U.P. Reorganisation Act, 2000 (Central Act No. 29 of 2000), for its disposal. (5) Before further discussion, it is pertinent to mention here that no ante mortem injury was found by P.W.7 Dr. Surat Singh Aswal at the time of postmortem examination of dead body of Ashima Bala (deceased), as is apparent from his statement and autopsy report (Ext.A-8). In said report, the Medical Officer has mentioned that on internal examination gravid male foetus, 16cm in length, 9 was found in the uterus and the age of foetus was 20-24 weeks. As to the cause of death P.W.7 Dr. Surat Singh Aswal has stated that cause of death could not be ascertained and viscera was preserved. (6) P.W.11 Constable Shishupal Singh has filed affidavit stating that he took viscera in a sealed condition to forensic laboratory, Agra, for chemical examination and handed over the same. P.W.8 Dr. S.C. Sharma, a Scientific Officer of forensic laboratory, Agra, has stated that on receiving the viscera of the deceased, he chemically examined the articles-stomach, piece of intestine, piece of liver, piece of kidney and spleen. He has stated that on chemical examination, he found in aforesaid five items contents of Organo Chloro Insecticide, but he did not find the contents of Potassium Cyanide. He has proved his report (Ext.A-9) and its copy (Ext.A- 10). The Scientific Officer of forensic laboratory has further explained the difference in the properties of Potassium Cyanide and Organo Chloro Insecticide, in his statement. From perusal of the report of forensic laboratory (Ext.A-9) read with autopsy report (Ext.A-8), it is clearly established on record that though the deceased had died a homicidal death, but she has not been administered Potassium Cyanide. 10 (7) In the First Information Report (Ext.A-1), P.W.1 Sanjay Gupta has mentioned that after Ashima Bala was declared dead by Dr. Kohli (P.W.4), Ajay Mishra confessed that he had administered Potassium Cyanide to his wife. P.W.3 Dev Ashish, receptionist of Hotel Basera, where accused Ajay Mishra and his wife Ashima Bala (deceased) were staying, has also stated that after Dr. Kohli (P.W.4) declared Ashima Bala brought dead, the accused Ajay Mishra admitted having committed the offence and administering Potassium Cyanide to his wife. This witness has further stated that the accused told that he gave three capsules of Potassium Cyanide to his wife by telling her that she was being given a medicine for relaxing from tiredness. This theory of administering Potassium Cyanide by the accused to his wife appears to be shaky and doubtful, as the forensic laboratory report (Ext.A-9) shows that Potassium Cyanide was not administered to the deceased. Had it been a case of illiterate or semiliterate accused, it could have been said that accused might have told ‘Potassium Cyanide’ instead of ‘Organo Chloro Insecticide’, due to ignorance, but from the record, it is clear that both accused and deceased were literate and belong to an educated class. Accused Ajay Mishra has stated that he is a non practicing lawyer who was trying to establish his business of law books, and deceased 11 Ashima Bala was daughter of a lawyer and leader (P.W.5 Akshay Kumar Panda). (8) Another significant feature of this case is that accused Ajay Mishra himself in a nervous condition has rushed after midnight to reception counter of the Hotel and asked the Hotel Staff to help him in taking his wife to Hospital. Had the accused, who belongs to Orissa, intended to kill his wife, he would not have asked the Hotel Staff for their assistance in taking his wife to Hospital. He could have easily slipped from the Hotel after committing murder of his wife. It is also pertinent to mention here that while making entry in the register of the Hotel, when he came there, he did not attempt to dodge the Hotel by disclosing any false name. (9) Apart from this, there is an important document (Ext.A-7), written by Ashima Bala (deceased), which creates reasonable doubt as to commission of murder by her husband. Relating to this document P.W.5 Akshay Kumar Panda, father of the deceased, has stated that it is in the handwriting of his daughter Ashima Bala. This document is written in Oriya, which is translated by D.W.2 Prashant Kumar Behra. The transliteration copy is Ext.B-1. The translation copy is Ext.B-2, contents of which are being reproduced below:- 12 “I am Ashima Bala Mishra informing that Akhaya Kumar Panda, Saila Archna Mishra, Mili, Bhanu, Chandrasekhar Mishra, Anjana Mishra, mother of Ajay, all brothers and sisters are responsible for my death. So any portion of my property will not be handed over to these people. All the money kept in the Bank in my name will be destroyed. Akhaya Kumar Panda had tried forcibly to obtain my signature in Unit Trust Certificate which is in my name and he is trying to grasp that money. So that money must be destroyed. Akhaya Panda should not get that money. After my death all the personal belongings which are in the quest house should be handed over to Santosh Bose (Ajay’s fried) and all my articles at home (i.e. Kathagare Sahi) i.e. my sari, house, plot belongings at home, plot of land should be handed over to Lily Tripathy. Ladu Patra has black mailed me by putting my signature in a blank paper. So any step should not be taken by believing that signature. They have treated me as mad but I am not a mad. When I wished to act in film Gopal Kar, Bimbadhar Das and Parth Rao (on Akhaya Panda’s word) have started giving medicine and electric shock to 13 cure me from madness. Because they tried to grasp the money by making me mad. Since Akhaya Panda is a political man Puri Hata Policemen support him and create problems for me. Chandrabhanu Panda always beat me and threatens me to kill if I will not pay him. In parental property both son and daughter have equal rights. But when I asked for my right they were beating me. They were giving medicine for madness and was trying to steal my belongings and torture me. Eulu and Mila Archana were stealing my ornaments, money and saree etc. Saila was always treating me as mad and told something to others also and was trying to kill me to death. Sd-Ashima Bala Mishra” (10) From the above suicide note of the deceased, it appears that before her death she had an impression that her relations on parental side as well as those in the in-laws house used to think her a psychiatric case and she has expressed her annoyance against relatives of both the sides. (It has already been mentioned above that Chandra Shekhar Mishra is father-in-law, and Akshay Kumar Panda is father of the deceased). P.W.5 14 Akshay Kumar Panda, father of the deceased, has stated that after the marriage of accused Ajay Mishra with Ashima Bala (deceased), the father of the accused demanded dowry and in the circumstances his daughter and son-in-law started living in the accommodation in Kalinga Guest House arranged by him (P.W.5), away from the in- laws of the deceased. P.W.5 Akshay Kumar Panda has alleged that his son-in-law also used to ask for money and once his daughter complained that accused tried to strangulate her. But simultaneously, he has stated that when the accused was asked why he has done so he denied and told that Ashima Bala had some illusions. P.W.5 Akshay Kumar Panda has admitted that on 5th June 1990, his daughter Ashima Bala told him that he along with her husband want to go to Delhi. According to this witness, the two did not stop even after being advised otherwise and the accused told him that Ashima Bala would feel change. This witness has further stated that he got information on telephone on 20th June 1990, at about 5.00 A.M., that his daughter has been killed. (11) At this stage, we also feel it necessary to quote following para of the note from diary (Ext.A-6) of the accused which has been signed by accused as well as the deceased. P.W.5 Dr. Akshay Kumar Panda has proved the handwriting of his son-in-law 15 (accused) and signatures of the deceased on this document. The last para of this note reads as under:- “request After we die, please send all our baggages and belongings to Mr. A.K. Panda. We have some gold ornaments with us, please send those to Mr. A.K. Panda. At least he should be given back his gifts. Please do not send our body to the hospital for postmortem as we have taken deadly Potassium Cyanide. We would like to remain in body and soul in the great Himalayas. We love the Himalayas. Please cremate our bodies in the Himalayas. Do not send out bodies to our relatives. Sd-Ashima Bala Mishra Sd-Ajay Kumar Mishra” The above words of accused and deceased do indicate that both of them planned to commit suicide, as such, this further creates reasonable doubt if the accused has committed murder of his wife. (12) For the reasons as discussed above, we are of the view that it cannot be said that the prosecution 16 has proved the charge of offence punishable under Section 302 I.P.C., beyond reasonable doubt, against accused Ajay Mishra for commission of murder of his wife. That being so, we are of the view that the trial court has erred in law in convicting the accused / appellant Ajay Mishra under Section 302 I.P.C.. Therefore, the appeal deserves to be allowed. The appeal is allowed. The impugned judgment and order, passed by the trial court, is set aside to the extant the conviction and sentence recorded against the appellant. He is acquitted of the charge of offence punishable under Section 302 I.P.C.. He is on bail. He needs not to surrender. Lower Court Record be sent back. (B.S. Verma, J.) (Prafulla C. Pant, J.) 23.04.2009 NS 17