IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Revision No.177 of 2001 (old No. 2388 of 2000) Daya Ram Sharma, S/o Shri Het Ram Sharma, R/o I.T.I. Tanakpur, P.S. Tanakpur District-Udham Singh Nagar ………..…Revisionist. Versus 1. State of U.P. 2. Smt. Jai Rani D/o Sri Ganga Ram Sharma Armeture winding R/o Co-operative Sugar Mill Majhola, P.S. Newaria, District Pilibhit. ……..…Opposite Parties. Shri Sandeep Tandon, Advocate, present for the revisionist/complainant. Smt. Mamta Bisht, A.G.A. present for the State. Smt. Pushpa Joshi, Advocate present for respondent No.2. Hon’ble Prafulla C. Pant, J. This revision is directed against judgment and order dated 14.09.2000, passed by Additional Sessions Judge, Udham Singh Nagar, in Sessions trial No. 184 of 1999, whereby said court has acquitted the accused (respondent No. 2) Jai Rani from the charge of offence punishable under section 304 of I.P.C. 2 2. Heard learned counsel for the parties and perused the lower court record. 3. Prosecution story in brief is that complainant’s son Satish Chandra Sharma (deceased) got married to the accused Jai Rani (respondent No. 2) on 27.04.1995. The complainant has alleged that Jai Rani was not happy with her marriage as she used to press for divorce. On 17.06.1997, at about 08:00 P.M in the I.T.I Colony, within the limit of Police Station, Tanakpur, when she alongwith her husband (Satish Chandra Sharma) was on the roof of their house with two nephews namely Banty aged 12 years (P.W.-4) and Kukoo aged 6 years (P.W.-5) who were also there, Jai Rani insisted Satish to close his eyes and to play hide and seek. Thereafter, when Satish Chandra Sharma with covered eyes searching his wife Jai Rani, she pushed her husband from the roof due to which Satish Chandra Sharma fell down on the ground and suffered injury. Complainant P.W.-1 Daya Ram Sharma attempted to take injured Satish Chandra Sharma to hospital however he succumbed to the injury on his way to the hospital. On this, the complainant 3 brought back the body of the deceased to his house and cremation was done. 4. After five months of the incident the complainant made a report to the police authorities but no action was taken where after he moved an application under section 156(3) of Cr.P.C. before the Magistrate on which crime No. 60 of 1998 was registered and the same was investigated by P.W.-7 sub-inspector, Ganga Singh, said officer after completing investigation submitted charge sheet against accused Jai Rani (wife of the deceased) for her trial in respect of offence punishable under section 304 of I.P.C. It appears that after giving necessary copies as required under section 207 of Cr.P.C., the Magistrate committed the case to the court of Sessions. Learned Additional Sessions Judge, Udham Singh Nagar, to whom the case was transferred, framed charge of offence punishable under section 304 of I.P.C against the accused Jai Rani (present respondent No.2) on 23.09.1999, to which the accused pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W.-1 Daya Ram Sharma (complainant), P.W.-2 Jagdish Chandra, P.W.-3 Sunita, a neighbour, P.W.4 4 Pushpendra alias Banty, P.W.-5 Kukoo alias Keshvendra, P.W.-6 Devendra Kumar Sharma, P.W.-7 sub-inspector, Ganga Singh. The oral and documentary evidence was put to the accused under section 313 of Cr.P.C. in response to which she pleaded the same to be false. It is alleged by her that after death of her husband, her father-in-law, to deprive the accused from claiming share in her late husband’s property, got lodged, this case. However, no evidence in defence was given. The trial court after hearing the parties came to the conclusion that the prosecution has failed to prove the charge beyond reasonable doubt. Accordingly, accused Jai Rani was acquitted of the charge under section 304 of I.P.C. Aggrieved by said judgment and order dated 17.09.2009, passed by Additional Sessions Judge, Udham Singh Nagar in sessions trial No. 184 of 1999 this revision was filed before Allahabad High Court on 3.11.2000, from where it is transferred to this court under section 35 of the U.P. Reorganization Act, 2000(Central Act 29 of 2000), for its disposal. 5. Learned counsel for the revisionist argued that there are two eye witnesses of the 5 incident and the trial court has committed grave error of law in disbelieving their testimony. I have gone through the evidence on record. The first point of which the trial court has doubted the prosecution story is that the first information report was got lodged after more than 6 months period. No doubt, mere delay in filing the first information report by itself cannot be a ground to throw the prosecution story above board but where there is complete absence of explanation for a delay of long period, the trial court has committed no error of law in considering the said circumstance in appreciating the evidence. Admittedly, complainants’ son died unnatural death in his house and the complainant was well aware of it. In such circumstance he preferred to get the dead body of his son cremated (without getting post mortem examination done), and did not mention anything of the incident to any authority for at least five months. On going through further evidence on record this court finds that P.W.-2 Jagdish Chandra, the neighbour of the deceased has simply stated that Satish Chandra (deceased) died accidental death. He appears to be an independent witness. P.W.3 6 Sunita, who is also a neighbour of the deceased states that Satish Chandra fell from the roof and was lying unconscious on the ground. She did not see any cover strip on his eyes. This fact also creates further doubt on the point of commission of crime as suggested by the prosecution. The only two eye witnesses are P.W.4 Pushpendra alias Banty and P.W.-5 Kukoo alias Keshwindra. They are young children and tutoring them cannot be ruled out. It has come on the record of the statement of P.W.-1 Daya Ram Sharma that after death of her husband after couple of days Jai Rani left her in –laws house. If these two children P.W.4 Pushpendra alias Banty and P.W.-5 Kukoo alias Keshwindra has seen the incident that Jai Rani pushed her husband from the roof, there is no reason why they had not disclosed it even after Jai Rani left the house. All these facts if read together does create a reasonable doubt as to the truthfulness of the prosecution story. Assuming for a moment that the testimony of the two children could have been believed, even then it is certainly a case where two opinions were possible. And one view has been taken by the trial court before whom evidence is recorded. This Court 7 in its revisional jurisdiction should not interfere with the opinion taken by the trial court, based on evidence. That being so, this Court does not find any force in this revision. 6. For the reasons as discussed above the revision is dismissed. Lower court record be sent back. (Prafulla C. Pant, J.) Dt:15.04.2010 parul