IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Government Appeal No. 90 of 2001 State of Uttaranchal ( Uttarakhand) …..…Appellant Versus 1. Gajpal Singh S/o Shri Narendra Singh 2. Lokesh Kumar Tomer S/o Shri Narendra Singh 3. Narendra Singh All R/o Village Dharpa P.S. Khurja Dehat District Bulandshahar ……….Respondents Shri M.A. Khan, Brief Holder, present for the State. Shri Lalit Sharma, Advocate, with Shri Pankaj Chaturvedi, Advocate, present for the respondents. Hon'ble Prafulla C. Pant, J. Hon'ble V.K. Bist, J. Hon'ble Prafulla C. Pant, J. (Oral) This appeal, preferred under section 378 of Code of Criminal Procedure, 1973 (for short Cr.P.C) is directed against the judgment and order dated 12.12.2000, passed by Additional 2 Sessions Judge, Dehradun, in Sessions Trial No. 196 of 1996, whereby said court has acquitted the respondents Gajpal Singh, Lokesh Kumar Tomer, and Narendra Singh from the charge of offences punishable under section 498A, 304B Indian Penal Code, 1860 (for short IPC), and one punishable under section ¾ of Dowry Prohibition Act, 1961. They have also been acquitted also from the charge of offence punishable under section 302 IPC. 2. Heard learned counsel for the parties and perused the lower court record. 3. Prosecution story, in brief, is that accused/respondent Lokesh Kumar Tomer got married to Mamta (deceased) in May 1990. Three children were born out of the wed-lock. A report was received at Police Station Cantt., that in the intervening night of 13/14.05.1995, Mamta committed suicide, and her body was lying hanging in residential quarter no. T-83/3 Jogendra Lines, Veerpur, Ghanghora, Police Station Cantt., District Dehradun. On said report, police went to the spot, took dead body in their possession 3 prepared inquest report, and other necessary papers. The dead body was sent for post-mortem examination which was conducted by team of two Doctors. The medical officers found that the deceased had died of asphyxia due to ante- mortem hanging. It appears that after about two and half months of the incident the first information report was lodged by Balbir Singh (father of the deceased) on the basis of which crime no. 122 of 1995, was registered against the accused/respondent Lokesh Kumar Tomer (husband of the deceased), Gajpal Singh (uncle-in- law of the deceased), and Narendra Singh relating to offences punishable under section 498A, and 304B IPC, at Police Station Cantt., Dehradun. The first information report was delayed by two and a half months. After interrogating the witnesses, and on completion of investigation charge sheet was filed by the Investigating Officer against the three accused/respondents for their trial in respect of offences punishable under section 498A, 304B IPC, and one punishable under section ¾ of Dowry Prohibition Act, 1961. 4. The Magistrate, on receipt of the charge 4 sheet, after giving necessary copies to the accused as required under section 207 Cr.P.C., appears to have committed the case to the court sessions for their trial. The trial court, after hearing the parties framed charge of offences punishable under section 498A, 304B IPC, and one punishable under section ¾ Dowry Prohibition Act, 1961, against the three accused namely Lokesh Kumar Tomer, Gajpal Singh and Narendra Singh who pleaded not guilty, and claimed to be tried. A alternative charge was framed on 20.12.1999, relating to offence punishable under section 302 IPC, against accused Gajpal Singh to which he pleaded not guilty, and claimed to be tried. Prosecution got examined P.W.1 Girish Kumar Sharma, P.W.2 Lakhan Singh, P.W.3 Uttam, P.W.4 Dr. S.S. Aswal, P.W.5 Smt. Rajwati Devi, P.W.6 Atul Kumar, P.W.7 Nootan (child), P.W.8 Keshav Sharma (declared hostile), P.W.9 Ashok Kumar Tyagi, P.W.10 Ravindra Raghav, and P.W. 11 Smt. Lali. The oral and documentary evidence was put to the accused under section 313 Cr.P.C., in reply to which they alleged same to be false. After hearing the parties, the trial court found that prosecution has failed to prove charge framed against the 5 accused, and acquitted them from all the charges. Hence this appeal is filed by the State. 5. Before further discussion, we think it just and proper to mention the ante-mortem injury found on the body of Smt. Mamta (deceased) by P.W.4 Dr. S.S. Aswal and Dr. T.R. Joshi who prepared autopsy report (Ex. A2) on 14.05.1995, after post- mortem examination. The ante-mortem injury is being reproduced below: “There is lacerated mark around the neck interrupted at the level of left mastoid process measuring 27cm X 3cm in size situated high up in the neck at the level of between larynx and chin directing obliquely upwards following the line of mandible. The base of mark is pale, hard, and leathry. Parchment like and margins are red and congested. On cut subcutaneous tissue is dry, white and glistening.” The team of medical officer opined that deceased had died of asphyxia due to ante- mortem hanging. In other words in the opinion of the medical officers who conducted post-mortem 6 examination deceased had committed suicide. As such, from the medical evidence on record it appears that though deceased died unnatural death but it was not a case of murder. 6. Now we have to examine whether the prosecution has proved that demand of dowry was made, and for its non fulfilment the deceased was subjected to cruelty due to which she committed suicide or not. P.W. 11 Smt. Lali is younger sister of the deceased who has stated that accused/respondent Lokesh Kumar has illicit relations with another woman due to which Mamta (deceased) was sad and frustrated. This statement of the prosecution witness suggests that the reason for committing suicide was not the harassment on account of non fulfilment of demand of dowry. P.W. 5 Rajwati, mother of the deceased has also corroborated said statement that due to the illicit relations of accused Lokesh Kumar with another woman there had been quarrel between Mamta and Lokesh. P.W. 7 Nootan is a child witness who has stated that accused/respondent Gajpal committed murder of her mother. On the day of incident in the year 7 1996, the age of this girl was just above three years. Normally at that age infants, and the children do not remember any incident which they can narrate years after the incident. The trial court has discussed the evidence, and find that this witness is a tutored child witness. After going through her evidence, we cannot rule out said possibility. It is pertinent to mention here that normally at the mid-night the children of that age remain sleeping in the home, and it is difficult to say as to how she was awaken. Apart from this, presence of accused/ respondent Gajpal Singh in Dehradun on the day of incident is also doubtful. The trial court has discussed the evidence at length, and found that evidence of P.W.3 Uttam that he took accused Gajpal Singh to the house of the deceased on 13.05.1995, is not reliable. P.W. 8 Keshav Sharma has also not corroborated the prosecution case on this point, and he was declared hostile. We do not think it necessary to discuss the hearsay evidence adduced by P.W.1 Girish Kumar Sharma, and P.W.10 Ravindra Raghav. 7. In the above circumstances, we do not find 8 sufficient ground to interfere with the impugned judgment and order passed by the trial court holding that prosecution has failed to prove charge of offences punishable under section 498A, 304B/302 IPC, and one punishable under section ¾ Dowry Prohibition Act, 1961. Therefore the appeal is dismissed. Lower court record be sent back. (V.K. Bist, J.) (Prafulla C. Pant, J.) 20.04.2011 Parul