IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 120 of 1999 Reserved on: 19.06.2010 Date of Decision: 20.8.2010 State of H.P. …Appellant. Versus. Mathara Devi …Respondent. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Sanjay Karol,, Judge. Whether approved for Reporting? For the Appellant: Mr. Vivek Singh Thakur, Addl. Advocate General. For the Respondent: Mr. Y.Paul and Dinesh Sharma, Advocate. Per Deepak Gupta, J. 1. This appeal by the State is directed against the judgement dated 3.9.1998 delivered by the learned Sessions Judge, Mandi in Sessions trial No. 33 of 1996 whereby he acquitted the accused of having committed offences punishable under Sections 302 and 201 of the Indian Penal Code. 2. The brief facts of the case are that Krishan Chand died on 13.11.1993, which was Diwali day. Krishan Chand was married to Mathra Devi, the accused, who is alleged to have murdered her husband. According to the 2 prosecution this was her 3rd or 4th marriage. The prosecution case further is that the body of Krishan Chand was found by Kesar Singh and Tek Singh near the house of the deceased and these two persons brought the dead body of Krishan Chand to the courtyard of the deceased. Relatives of the deceased were called. PW-1 Nand Lal is the nephew of the deceased. When he came to the village he found that the body of his maternal uncle (Mama) had been laid on the floor and was covered with a blanket (Pattu). Several persons were present there. When the Pattu was removed he found that there were blue marks on the right side of the face and head of the deceased. He also found marks of injury on the neck of the deceased. Therefore, he reported the matter to the police at about 9 p.m in the evening. The SHO Police Station, Balh sent one constable with him and on the next day the SHO himself visited the house of Krishan Chand and prepared the inquest report Ext.PW-1/A and sent the dead body for post mortem to the district hospital Mandi. However, no case was registered upto 21.11.1993 and it was only on the said date on the basis of the report Ext.PW-25/B (also Ext.DA) F.I.R. Ext.PW-20/A was lodged under Sections 302 and 201. As per the post mortem 3 report Ext.PW-19/B deceased Krishan Chand died as a result of strangulation caused by throttling. The prosecution case is that the accused killed her husband Krishan Chand since he had revoked the Will which he had executed in her favour and had executed another Will bequeathing his properties in favour of PW-1. After investigation challan was filed against the accused and the accused pleaded not guilty and claimed trial. After trial the accused was acquitted. Hence, this appeal by the State. 3. There is no eye witness to the incident and the entire case against the accused is based on circumstantial evidence. The circumstances relied upon by the prosecution are as follows:- a) Motive; b) Wrong explanation of the death of Krishan Chand by the accused; c) Past conduct of Mathra Devi; d) Strained relations between Mathra Devi and Krishan Chand; and e) Hearing of the noise of Ghar-Ghar, as if someone is being strangulated by Milkhi Ram (PW-22) from the house of the deceased. 4 4. It is settled law that in the case of circumstantial evidence all the circumstances from which conclusion of guilt is to be drawn should be fully established; the circumstances and facts so established should be consistent only with one conclusion i.e guilt of the accused and they should not admit of any other hypothesis except the guilt of the accused. The circumstances should be conclusive in nature and should exclude any possibility of the accused being innocent. The chain of circumstances should be linked together in such a manner that the same is complete and leads to only one conclusion i.e. the guilt of the accused and also exclude any probability of the crime having been committed by some other person. It is in the light of this settled position of law we proposes to examine the case. 5. We have carefully gone through the evidence and both documentary and oral evidence led before the learned trial Court and the circumstances relied upon by the prosecution. a. Motive. 6. The prosecution case is that this was the 3rd or 4th marriage of Mathra Devi and she had got married to Krishan Chand with a view grab his property. She got a 5 Will executed in her favour. However, lateron deceased Krishan Chand revoked the Will and therefore she got angry and strangulated her husband. The Will Ext.PW- 20/A has been proved during the examination of Shri D.D.Verma, Advocate. This Will was executed on 24.4.1992 and by this Will the deceased has bequeathed his property to Mathra Devi. It was incumbent upon the prosecution to prove that this Will had been cancelled by the deceased. The prosecution relied upon mark-A, which is the Will purported to have been executed by Krishan Chand in favour of PW-1 Nand Lal and Prem Dass, both sons of his sister. On the basis of this Will the estate of the deceased has been mutated in favour of his nephews. According to Nand Lal, one of the beneficiaries under the second Will, the deceased had told him that he first willed his property to Mathra but since she used to beat him he handed over one paper to Nand Lal. Nand Lal being illiterate got the document readover from his children and found it to be a Will of Krishan chand in his favour. Thereafter, he handed over the same to the Tehsildar and on the basis of the said Will, mutation was attested in his favour. 6 7. The second Will has not been proved on record. In fact, other than the testimony of Nand Lal there is nothing on record to show that the Will was executed. The Will Mark-A purported to be witnessed by Shri Mohan S/o Dayal Singh and Tej Ram S/o Amru. Tej Ram was examined as PW-10. According to him Krishan Chand had previously executed a Will in favour of Mathra but lateron he changed it in favour of his nephew Nand Lal. He has, however, not stated a word that he was a signatory to the second Will of Krishan Chand. Mohan Singh has not been examined. Therefore, the prosecution has miserably failed to prove that the second Will had been executed. We are, therefore, not in agreement with the learned trial Court that this circumstance stands proved. (b) Wrong explanation of the death of Krishan Chand by the accused; 8. The second incriminating circumstance according to the prosecution is that when accused Mathra was asked how Krishan Chand died she stated that it was due to a fall. Reliance in this behalf is placed on the testimony of PW-1 Nand Lal who stated that when he asked Manthra as to how Krishan Chand had died she told him that he 7 had fallen down. Many injuries were found on the person of the accused. They are as follows:- 1. An abrasion of the size of 1”x ½” on the right side of the forehead just above and lateral to the lateral 1/3rd of eye brow. 2. An abrasion ½” x ½” was present on the right side of forehead 2” above and lateral to the first injury near the hair line. 3. An abrasion 1” x ½” present on the right side cheek over zygomatic bony prominence. Injury marks on the neck. 1. Redish brown coloured abrasion slightly roundish shaped of the size of ¾” x ½” present on the right side of front of neck at the level of upper border of thyroid cartilages 2” away from the midline of the neck. 2. ¼” x ½” sized redish brown coloured abrasion present on the right side of the neck 1” below the above mentioned injury. 3. ¼” x ½” sized slightly obliguely placed redish brown coloured abrasion present on the left side of front of neck about 2” from the mid line of neck at the level of lower 1/3rd of body of thyroid cartilage. 4. Similarly placed 2” x 1” sized redish coloured abrasion adjoining and below the above mentioned abrasion No.3 extending both medially and laterally. 5. Similarly placed 1¼” x ½” sized redish coloured abrasion adjoining the above mentioned abrasion No.4. 6. Similarly placed ½” x ¼” redish brown abrasion about ¼” below the above mentioned abrasion. 8 9. The opinion of the doctor PW-19 was that the injuries found on the forehead and face could be caused by a fall but the injuries on the neck could not be inflicted by fall. After detailed examination of the evidence the learned trial Court found that the deceased was 84-85 years of age and therefore the possibility of natural asphyxia having occurred after fall could not be ruled out. Apart from that the statement of Nand Lal that Mathra told him that Krishan Chand died due to a fall is not at all reliable. According to this witness Pradhan Shayam Lal and ward member Luharu were present when Mathra gave this explanation regarding the death of the deceased. Shayam Lal, who appeared as PW-21, is totally silent on this point. Luharu was examined as PW-6 and according to him when he was going towards the house of Krishan Chand he met Tek Chand who told him that Krishan Chand had died because of fall. PW-10 Tej Ram is also member of Gram Panchayat and he stated that it was PW-1 Nand Lal who came and told him that he suspected that Mathra had killed her husband. According to him Nand Lal did not ask Mathra as to how Krishan Chand had died. This shows that Nand Lal is not telling the truth. 9 10. Another serious aspect of the matter is that in the inquest report Ext.PW-1/A which was prepared by PW-28 Hans Raj it is recorded that while Krishan Chand was going with his buffalos to the Khad he fell down. He was thereafter brought by Tek Chand, Haru and Mathra to his house. Nand Lal’s relations with the accused are inimical and they are both claiming their right to the property of the deceased. Haru Ram was examined as PW-9 and stated that dead body of Krishan Chand was brought from place where cattle are tethered. Tek Chand has not been examined and the learned trial Court rightly held that therefore a presumption can be drawn that he would not have supported the prosecution. It is thus obvious that the prosecution has miserably failed to show that Mathra ever told Nand Lal that Krishan Chand died due to a fall. In fact this was the version of Tek Chand. Secondly, the possibility of Krishan Chand having died due to a fall cannot be ruled out and thirdly the police also did not suspect it to be a case of murder for almost 12-13 days after the occurrence. c) Past conduct of Mathra Devi; 11. According to the prosecution the past conduct of Mathra Devi was that she married rich people who 10 somehow or the other died. She inherited the properties of those persons and married again. Other than making such a bald allegation there is nothing to prove this fact. It is true that marriage of Mathra to Krishan Chand was her third marriage at least but this by itself is not sufficient to hold that she used to marry rich persons, kill them and grab their properties. d) Strained relations between Mathra Devi and Krishan Chand; 12. There is sufficient material on record to show that the relations between Mathra Devi and Krishan Chand were quite strained and they used to regularly quarrel with each other. Therefore, this circumstance does stand proved. e) Hearing of the noise of Ghar-Ghar, as if someone is being strangulated by Milkhi Ram (PW-22) from the house of the deceased. 13. The prosecution relied upon the testimony of PW-22, according to whom when he was taking his cattle to his land he met Krishan Chand who asked him to chop the branches of the trees. Milkhi Ram thereafter came to the house of Krishan Chand and asked Mathra Devi whether Krishan Chand was there. Mathra Devi told this witness that Krishan Chand was not in the house. Milkhi Ram, 11 however, saw that the shoes of Krishan Chand were lying there and he heard the noise of “Ghar-Ghar” as if someone was being strangulated. He asked Mathra Devi what was the sound and she replied that it was a dog. He wanted to go inside the house but Mathra Devi closed the door. Thereafter, he returned to his house. His evidence cannot be believed at all and his statement is preposterous and false. If Mathra Devi was strangulating Krishan Chand she could not have been present outside the house talking to Milkhi Ram. If during the course of strangulation she had come out and talked to Milkhi Ram then the pressure on the neck of Krishan Chand would have been released and deceased would not have died. The statement of PW-22 Milkhi Ram is contrary to the statement of PW-9 Haru Ram, who states that he was present at the carding machine when Mathra came and told him that Krishan Chand was lying at the place where the cattle were tethered. They all came there and saw that Krishan Chand was lying dead. This circumstance has also not been proved. 14. From the above discussion, it is apparent that out of the five circumstances relied upon by the prosecution it has only been able to establish and prove one. The mere 12 circumstance that relations between accused Mathra Devi and her husband Krishan Chand were strained is not sufficient to convict her for the murder of her husband. 15. As a result of the above discussion, we find no merit in the appeal, which is accordingly dismissed. The bail bonds furnished by the accused are ordered to be discharged. ( Deepak Gupta ) Judge. 20th August, 2010 (Sanjay Karol ) ™ Judge.