IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 304 of 1997 Date of decision: 26.08.2010 ____________________________________________________________ The State of H.P. .....Appellant. Versus Mintu @ Ravi Kumar & another .....Respondents. Coram The Hon'ble Mr. Justice R.B. Misra,J. The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? ____________________________________________________________ For the appellant: Mr. Rajinder Dogra, Additional Advocate General with Mr. Anil Jaswal, Deputy Advocate General. For the respondents: Mr. Dharamvir Sharma, Advocate. R.B. Misra, J (Oral). The present criminal appeal has come up for consideration after leave to appeal under Section 378(3) of the Code of Criminal Procedure has been granted in reference to the impugned judgment and order dated 03.01.1997, passed by the learned Additional Sessions Judge, Mandi, District Mandi, in Sessions Trial No. 24 of 1996, acquitting the alleged accused under Sections 302 and 201 of the Indian Penal Code in reference to FIR No. 62 of 1996. 2. Prosecution case in brief is that Pushpa (deceased) was married to Mintu alias Ravi Kumar in September 1994, but was 1 Whether reporters of Local Papers may be allowed to see the judgment? ...2... not treated nicely by Mintu and was given beatings. On March 27, 1996, Pushpa (deceased) died and FIR No. 62 of 1996 was registered for the offences under Section 306 and 498-A of the Indian Penal Code. However, after necessary investigation, the offence was converted under Sections 302 and 201 of the Indian Penal Code. Accused-respondents were charge-sheeted and the case was committed to the Sessions Court. 3. In order to prove its case, prosecution examined as many as seventeen witnesses, whereas, accused-respondents through their statements under Section 313 Cr.P.C. denied the prosecution case. 4. PW-1 Angyal, complainant, has stated that his daughter Pushpa was married in the year 1994 with Mintu. He came to know about the death of his daughter on 27.03.1996, at 8/9 p.m., on telephone He also came to know that accused in presence of Ganga Ram gave disclosure statement that he could get recovered the rope and the blanket with which he murdered Pushpa and statement, Ex. PB, was recorded. Thereafter, accused alongwith police party came to Chontra and got recovered one rope, 26 feet in length, which was hidden below the wood and one blanket, red and while flower design, which were taken into possession vide recovery memos, Ex. PC and Ex. PD. 5. PW-2 Smt. Tanzin Angamo, wife of complainant, has also supported the prosecution case, as deposed by her husband, PW-1. 6. PW-3 Mohinder Kumar has stated that on March 26, ...3... 1996, Bimla Devi came to his house at Chauntra and told that her sister-in-law (Bhabi) had fallen ill and requested him to accompany her. He went with her to the house of her brother at Chauntra, where Dr. Khazan Singh declared the victim dead. 7. PW-4 Khazan Ram has also deposed like PW-3. PW-5 Pankaj Sen, Draughtsman, prepared the plan, Ex. PE, of the house. 8. PW-6 has deposed that on 26.03.1996, at about 8:45 p.m., while he was going to his shop and when he reached near the house of Beasa, one girl was washing clothes and her husband was sitting near her, who was similar to the accused Mintu. At about 11/11:30 a.m. on the same day, PW-6 came to know that the victim had died. On Sunday, he took two photographs of the spot, the negatives of which are, Ex. P-7 and Ex. P-8. 9. PW-7 Smt. Meena Devi has stated that Mintu accused was residing with his wife Pushpa in the house of Beasa, as a tenant. Pushpa used to sell 'heengzira' and 'neckless', but she did not know what Mintu was doing. PW-7 also saw that 10-15 persons, including ladies and children, were standing outside and Mintu accused was weeping. Then, she went in the room and saw Pushpa lying on the cot. She did not know whether she was alive or dead. She stated that police forced her to give this statement, Ex. PE. 10. PW-8 Gian Chand MHC stated that ASI Pritam Chand deposited a parcel containing 'dupatta' on 28.03.1996. PW-9 Safari Ram, constable No. 462, has deposed that he took four sealed parcels, vide R.C. No. 3/96 from MHC Gian Chand and deposited ...4... the same in F.S.L. Bharari. PW-10 Ranjit Singh ASI has stated that on 28.03.1996, ruka, Ex. PA, was brought by Constable Birbal, on which he recorded the FIR, Ex. PG. PW-11 Puran Chand, SHO, has stated that in the present case, investigation was carried out by ASI Pritam chand and Inspector Gulzar Mohammad. PW-12 Rajmal was declared hostile. PW-13 Dr. D.D. Rana has stated that he conducted the post-mortem examination of the deceased and noticed that the dead body was having blunt injury mark on the left side of forehead showing blackness, swelling and this injury was ante-mortem. Near the angle of jaw one abrasion was found which was post-mortem injury. There was no legature mark on the neck and as per the post-mortem examination report Ex PL, the death was due to asphyxia. Time taken between injury and death was 10 to 15 minutes and between death and post-mortem 72 hours. In cross-examination PW-13 has stated that there may be many causes of asphyxia. One of them may be that if a person is eating something and if the food particle goes in the wind pipe and get chocked, the death by asphyxia is possible. Gagging, grotting, smothering, drowning etc. are other causes of asphyxia. 11. PW-14 Dr. R.P. Kaushal has stated that on receipt of application, Ex. PM, he visited the spot alongwith Dr. D.D. Rana. Hanging was over ruled and there was no question of deceased died of hanging from the beam shown by the police. 12. PW-15 Pritam Chand, ASI, has stated that he carried out part investigation. PW-16 Rattan Singh Thakur, Sub Divisional Judicial Magistrate, Jogindernagar, has stated that on the request ...5... of police, Ex. PU, he explained to Meena Devi whether she was under some threat or pressure and she told that she was not under any pressure, on which her statement, Ex. PR, was recorded correctly, as deposed by her. 13. PW-17 Gulzar Mohammad, District Inspector Police, has stated that he was posted as SHO, Police Station, Jogindernagar, temporarily for about two months. The present case was converted into section 302 of the Indian Penal Code. 14. On analysis of the prosecution witnesses and the material on record, we notice that one ante-mortem injury on the forehead was found by the doctor, but doctor D.D. Rana, PW-13, has categorically stated that as per post-mortem report, Ex. PL, the cause of death of asphyxia could not be with this injury and in cross-examination, he has stated that asphyxia is caused if wind- pipe is chocked while eating something or by gagging, grotting or strangulation etc. Therefore, the injury on the forehead is not related to the death of deceased. 15. PW-7 Meena Devi and PW-12 Rajmal have been declared hostile. PW-7 Meena Devi deposed that victim died while washing clothes. The death of the victim took place on 26.03.1996, in the house of accused Mintu, but the matter was never reported to the police till 28.03.1996. The prosecution examined PW-3 Dr. Mohinder Kumar and PW-4 Khazan Singh, who have deposed that they are registered medical practitioners and they were called by Bimla Devi on 26.03.1996, at 10 a.m. They went in the house of accused Mintu and found a lady dead and at that time in the ...6... courtyard near 'kuhal' some clothes were lying and people present were telling that while washing clothes, the victim became ill all of a sudden. PW-6 also came to know about the death of the victim on 26.03.1996, at about 11 a.m. and everybody, who were present on the spot, was telling that she fell ill while washing the clothes all of a sudden and died subsequently. 16. In the present case, no witness had seen anyone assaulting the deceased and no direct and circumstantial evidence is available. Only in view of the testimony of PW-6, the husband was seen on the spot standing near the victim when the victim was washing the clothes. However, no prosecution witness have indicated that Mintu alias Ravi Kumar accused, being the husband of the victim, had intention to kill the victim. 17. Undisputedly, Pushpa (deceased) had died due to asphyxia and injury on the forehead of the victim was ante- mortem, but the prosecution's endeavour to link the crime with accused Mintu is not successful, as the prosecution could not establish, from the circumstances, the motive or intention of the accused-respondents to kill the deceased. Merely by keeping the dead body in the house for about 2 days could not be said to be conclusive that Mintu accused was responsible for killing the victim Pushpa. 18. In view of the testimony of PW-6, presence of accused(husband of the deceased) cannot be said to be a circumstantial evidence proving the last seen theory. 19. On analysis of the prosecution witnesses and material ...7... on record, learned Additional Sessions Judge has rightly arrived at the finding that the prosecution has failed to prove its case beyond reasonable doubt. In our considered view, prosecution has failed to bring home the guilt against the accused-respondents and accused Bimla Devi has no role to play, as no prosecution witness indicated anything against her. In these circumstances, there is no scope of interference in the judgment of the trial court and appeal, being devoid of merit, is dismissed. (R.B. Misra) Judge (V.K. Sharma) Judge 26th August, 2010 (virender)