IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL COURT’S ORDER WHETHER THE CASE IS OR NOT APPROVED FOR REPORTING [Chapter VIII, Rule 32(2) (b)] Description of the Case. Crl. Appeal No. 1354 of 2001 Decided on: 8th Jan., 2008 A.F.R. (Approved for Reporting) Not approved for Reporting Date. 08.01.2008 (Initial of Judge) Note: Bench Reader will attach this at the top of the first page of the judgment when it is put up before the Judge for signature. Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 1354 of 2001 (Old No. 1584 of 1987) State of Uttar Pradesh (Now State of Uttarakhand) …..………… Appellant Versus 1. Soban Singh 2. Bharat Singh (Since deceased) 3. Bachan Singh 4. Chait Singh All Sons of Bhau Singh 5. Smt. Sauna Devi W/o Bhau Singh (Since deceased) 6. Smt. Chhaini Devi W/o Bharat Singh 7. Smt. Munni Devi W/o Chait Singh …………… Accused / Respondents Mr. Amit Bhatt, Addl. Government Advocate for the appellant State. Mr. K.N. Joshi, Advocate for the respondents. Coram: Hon’ble Prafulla C. Pant, J. Hon’ble Dharam Veer, J. Prafulla C. Pant, J. (Oral) This appeal, preferred under Section 378 of the Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), is directed against the judgment and order dated 21.02.1987, passed in Sessions trial No. 35 of 1985, by learned Sessions Judge, Tehri Garhwal, whereby the accused (present respondents) are acquitted of the charge of offences punishable under Section 302 read with Section 34 and under Section 498-A read with Section 34 of the Indian Penal Code, 1860 (hereinafter referred as I.P.C.). The leave to appeal was granted by the Allahabad High Court on 30.04.1992, as this appeal was initially filed there on 05.06.1987. This appeal is received by transfer to this Court under Section 35 of the U.P. Re-organization Act, 2000, for its disposal. 2) We heard learned counsel for the parties and perused the entire evidence on record. 3) The prosecution story in brief is that Budha Devi (deceased), daughter of Khaddu Singh (P.W. 1), got married to Soban Singh (accused / respondent No. 1) resident of Village Sagwan Gaon, Patti Sarjula, District Tehri Garhwal, in the month of April 1984. Village of Khaddu Singh (parental village of the deceased) is Kanda of the same Patti and District, which is at a distance of some five kilometers (3 miles) from the village Sagwan Gaon. Accused / respondents Bharat Singh, Bachan Singh and Chait Singh are brothers of Soban Singh (husband of the deceased), while accused / respondent Sauna Devi is mother of said accused. Accused / respondent Chhaini Devi (wife of accused / respondent No. 2, Bharat Singh) and accused / respondent Munni Devi (wife of accused / respondent No. 3, Chait Singh) are sisters-in-law of the deceased. According to the prosecution, accused / respondent Bharat Singh and his other members of the family i.e. the in-laws in the house of the deceased, were not happy with the dowry given in the marriage and used to harass deceased Budha Devi. (It is pertinent to mention here that the incident in question relates to the year 1985 and Section 304-B of I.P.C. was inserted by Act No. 43 of 1986 w.e.f. 19.10.1986). It is alleged by the prosecution that Budha Devi informed about the harassment by her husband and in-law to her father P.W. 1 Khaddu Singh through some boy. On 12.08.1985, Budha Devi Devi died of unnatural death, of which according to the father of the deceased, no information was sent to him by Soban Singh or other members of his family. It is further alleged by the prosecution that the body of the deceased was disposed of on 13.08.1985 before Khaddu Singh or other family members from the parental side could reach village Sagwan Gaon. Lastly, though not mentioned in the first information report, but it is alleged by the prosecution that the accused / respondents Soban Singh, Bharat Singh, Bachan Singh and Chait Singh made an extra judicial confession of P.W. 1 Khaddu Singh and other witnesses namely P.W. 3 Jagat Singh, P.W. 4 Gaina Singh and P.W.5 Gyan Singh, village Pradhan of Village Kanda (who accompanied Khaddu Singh to village Sagwan Gaon) that they (accused) have committed a mistake by killing deceased Budha Devi and disposing of her body without informing her parents. 4) From the defence side, though it is admitted to the accused / respondents that Budha Devi got married to accused / respondent Soban Singh, but the allegations relating to cruelty for non fulfillment of demand of dowry or the allegation of commission of murder with common intention, are denied. According to the defence version, Budha Devi committed suicide and a first information report (Ext. A -2) was lodged on 12.08.1985, with the police outpost Bhaito Gisera (within the limits of police station Tehri). Thereafter, inquest report of the dead body (Ext. A - 7) was prepared by the police, where after on 13.08.1985, Doctor Y.S. Rana (P.W. 14) conducted the autopsy on the dead body. After autopsy, Doctor Rana prepared postmortem examination report (Ext. A-12) and said report disclosed cause of death as asphyxia due to hanging. From defence side it is also alleged that information was also sent to the parental village of the deceased, but Khaddu Singh (father of the deceased) was not available in his village, as such, on 13.08.1985, the dead body was disposed of. 5) The first information report (Ext. A -1) lodged by P.W. 1 Khaddu Singh is dated 14 August 1985 i.e. subsequent to the first information report (Ext A -2) lodged by accused / respondent Soban Singh. But the first information report (Ext. A -1) which reached the police station through Sub Divisional Magistrate, was actually registered at the police station on 17.08.1985, and a case under Section 149, 302 and 498-A of I.P.C. (Crime No. 01 of 1985) was registered against the accused / respondents Soban Singh, Bharat Singh, Bachan Singh, Chait Singh, Sauna Devi, wife of Chait Singh (Munni Devi) and wife of Bharat Singh (Chhaini Devi). The crime was initially investigated by P.W. 11, Beer Sen Yadav, Inspector In- charge, police station Tehri and, thereafter, P.W. 15 G.S. Thapa, Deputy Superintendent of police took over the investigation, who submitted charge sheet (Ext. A-13) against all the seven accused / respondents, for their trial in respect of offences punishable under Section 149, 302 and 498-A of I.P.C. Before that witnesses were interrogated by the Investigating Officers and site plan (Ext. A-6) was prepared, during investigation. It is pertinent to mention here that before the investigation started, inquest report (Ext. A-7) had already been prepared on 13.08.1985, after the unnatural death reported by accused Soban Singh to the police and sketch of the dead body (Ext. A-8), police form No. 13 (Ext. A -9) and letter (Ext. A-10) to the Chief Medical officer for postmortem examination, were prepared. The postmortem examination had also been conducted on 13.08.1985 by Dr. Y.S. Rana, who prepared the report Ext. A-12, of the same. 6) The Magistrate, on receipt of the charge sheet, after giving necessary copies to the accused, as required under Section 207 of the Cr.P.C., committed the cases relating to offence punishable under Section 302 / 34 and under Section 498-A / 34 of I.P.C., to the court of Sessions, for trial. Learned trial court, after hearing the parties, framed charge of two heads, on 23.12.1985, against all the seven accused namely, Soban Singh, Bharat Singh, Bachan Singh, Chait Singh, Sauna Devi, Munni Devi and Chhaini Devi, relating to offence punishable under Section 302 read with Section 34 of the I.P.C. and one punishable under Section 498-A read with Section 34 of I.P.C. all the accused pleaded not guilty to the charge and claimed to be tried. On this, prosecution got examined P.W. 1, Khaddu Singh (informant and father of the deceased); P.W. 2, Lakhan Singh; P.W. 3, Jagat Singh (brother of the deceased); P.W. 4 Gaina Singh; P.W. 5, Gyan Singh (Pradhan of village Kanda); P.W. 6, Khushal Singh, Photographer (who photographed the dead body on the request of the police); P.W. 7, Bhagwan Sing Panwar (scribe of the report Ext. A -1); P.W. 8, Beer Singh; P.W.9, Head Constable Raghunath Singh (who prepared the check report Ext. A -2, on the report given by Soban Singh, on 12.08.1985); P.W. 10, Constable Salim Khan (who guarded the dead body in the intervening night of 12.08.1985 and 13.08.1985, before it was taken for postmortem examination); P.W. 11, Beer Sen yadav, Inspector In-charge (Investigating Officer); P.W. 12, Sub Inspector Goverdhan Das (who prepared the inquest report Ext. A-7 and other elated papers, on 13.08.1985); P.W. 13, Bimal Kothari (who developed the photographs in the Studio); P.W. 14, Dr. Y.S. Rana (who conducted the postmortem examination); P.W. 15 G.S. Thapa, Dy. Superintendent of Police (who concluded the investigation); P.W. 16 Harbhajan Singh and P.W. 17, Soban Dei. 7) The entire oral and documentary evidence was put to all the accused under Section 313 of Cr.P.C. by the trial court. All the accused only admitted that deceased Budha Devi got married to Soban Singh and she died on 12.08.1985. However, the evidence relating to harassment for non-fulfillment of demand of dowry and commission of murder is alleged to be false. In the defence, D.W. 1 Sobat Singh, D.W. 2 Bhagwan Singh S/o Chandan Singh and D.W. 3 Ashok Kumar were examined. 8) The trial court, after hearing the parties and discussing the evidence on record, found that none of the charge is proved against any of the accused, except the charge of Section 498-A of I.P.C. against accused / respondent Sauna Devi (who was convicted under said charge, but keeping in view her old age, directed to be released on probation). Learned counsel for the respondents made a statement at Bar that accused / respondent Sauna Dei and accused / respondent Bharat Singh have died, during the pendency of this appeal. 9) Before further discussion, we think it just and proper to mention the ante mortem injuries found on the dead body of the deceased Budha Devi by Dr. Y.S. Rana (P.W. 14), which are recorded in the postmortem examination report (Ext. A-12). The same are being reproduced hereunder:- “The ligature mark is situated above the thyroid cartilage between larynx and chin. It is directed obliquely upward and absent over left side of neck and back. It is well defined, narrow and deep. There is groove. The base is pale, hard, leathery, margins are red and congested; the colour is chocolate. Face of the deceased was found swollen and congested, pupils were widely dilated.” The Medical Officer, who conducted the autopsy has observed that the tongue was found caught between the teeth. He has opined that cause of death is “DUE TO ASPHYXIA AS A RESULT OF HANDING.” 10) Learned Additional Government Advocate arguing on behalf of the state contended that the report of the Medical Officer, as to the cause of death, is wrong. In support of his argument he further contended that there was no possibility for the deceased to commit suicide by hanging, as height of the deceased shown in the postmortem report is 5 feet 1 inch, and the room where her dead body was found was of the height of 5 feet 2 inches. (One of the witnesses has alleged it to be five feet 4 inches). We have gone through the relevant pages of the Modi’s Jurisprudence and found that, though, normally suicide by hanging is committed in a standing position, there are illustrations where suicide by hanging is possible in a sitting posture, also. Learned Additional Government Advocate further argued that most of the features recorded in the postmortem examination report (Ext. A -12) indicate a case of asphyxia by strangulation and not by hanging, as the blood mixed with forth and saliva was found around the mouth of the deceased. In the pages of Modi’s Jurisprudence such possibility is found to be common in the cases of strangulation, but simultaneously, it is mentioned that such features are at times also found in the cases of asphyxia by hanging. 11) This case is based on the circumstantial evidence and there is no eyewitness of the commission of crime. The prosecution story is mainly based on alleged extra judicial confession made by four accused namely, Soban Singh, Bharat Singh, Bachan Singh and Chait Singh (all the four brothers) to P.W. 1 Kaddu Singh and others, on being questioned the proprietary of disposing of the dead body before Khaddu Singh reached village Sagwan Gaon. In this connection, on behalf of the State, attention of this Court is drawn to the statements of P.W. 1 Khaddu Singh, P.W. 3 Jagat Singh, P.W. 4 Gaina Singh and P.W. 5 Gyan Singh (village Pradhan of Kanda). Outo f these witnesses, P.W. 1 Khaddu Singh, father of the deceased, got scribed the first information report (Ext. A-1) on 14.08.1985. The extra judicial confession is said to have been made on 13.08.1985. However, there is no mention of extra judicial confession being made by said four accused to Khaddu Singh from any of the above names accused, in the first information report (Ext. A-1) whichw as got scribed on 14.08.1985. As far as statement on P.W. 3 Jagat Singh is concerned, he states that he had told to the Investigating Officer the accused made to him extra judicial confession but same did not find place in his statement under Section 161 of Cr.P.C. Other two witnesses P.W. 4 Gaina Singh and P.W. 5 Gyan Singh also belong to the village of Khaddu Singh and their statement on this point cannot be taken true beyond reasonable doubt unless corroborated by other evidence. 12) Learned Additional Government Advocate referred to the case of State of Haryana Vs. Sher Singh; A.I.R. 1981 SUPREME COURT 1021, wherein it has been observed that mere non-mention of extra judicial confession in the first information report is not sufficient to discard the testimony of a witness. Having gone through said case law, we find that the facts in said case were different, as there was eyewitness also of the commission of double murder, in said case. In that circumstance, since, statement of one of the witnesses, who deposed that accused made extra judicial confession before him, got corroborated from the other evidence on record, the Apex court therefore found that the statement of such witness as to the factum of extra judicial confession could not have been discarded. In the present case, the story is otherwise. Even the medical evidence is not corroborating the commission of murder. In Kojja Sreenu Vs. State of A.P.; 2005 Supreme Court Cases (Cri) 853, the Apex Court in similar circumstances did not rely on the statement of witnesses that extra judicial confession was made to them of which there was no mention in the first information report. 13) As far as disposing of dead body, before P.W. 1 Khaddu Singh (father of the deceased) reached the village, is concerned it is stated by the accused in their statements recorded under Section 313 of Cr.P.C. that the intimation was sent to the parental house of the deceased. From the statement of P.W. 1 Khaddu Singh, it is clear that in the cross examination defence counsel has specifically suggested that intimation was sent (through Dhurth Singh) to the parental house of the deceased, but Khaddu Singh was not available in his house, on 12.08.1985. In C. Antony Vs. K.G. Raghavan Nair; 2003 CRIMINAL LAW JOURNAL 411 (S.C.), it is held by the Apex Court that though the appellate court has full power to review the evidence upon which the order of acquittal is founded, still while exercising such an appellate power in a case of acquittal, the appellate court, should not only consider every matter on record having a bearing on the question of fact and the reasons given by the Courts below in support of its order of acquittal, it must express its reasons in the judgment which led it to held that the acquittal is not justified. The appellate court must also bear in mind the fact that the trial court had the benefit of seeing the witnesses in the witness box and the presumption of innocence is not weakened by the order of acquittal, and in such cases if two reasonable conclusions can be reached on the basis of the evidence on record, the appellate court should not disturb the finding of the trial court. 13) In view of the above discussion, we do not think it just and proper to disturb the findings recorded by the trial court that the charge of offence punishable under Section 302 read with Section 34 of I.P.C., is not proved beyond reasonable doubt, as against any of the accused and that the charge of offence punishable under Section 498-A read with Section 34 of I.P.C. is not proved against accused Soban Singh, Bharat Singh, Bachan Singh, Chait Singh, Munni Devi or Chhaini Devi, beyond reasonable doubt. 14) Therefore, the appeal is liable to be dismissed. The same is dismissed. (Dharam Veer, J.) (Prafulla C. Pant, J.) Dt. January 08, 2008. H. Negi