IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 1780 of 2001 Chandan Singh S/o Sri Nath Singh R/o Village Jankande, P.S. Patwari Kshetra Dhernath, District Champawat. ...…………. Appellant Versus State of Uttaranchal ...…………. Respondent Along With Criminal Appeal No. 1759 of 2001 1. Smt. Umedi Devi W/o Sri Chandan Singh R/o Village Jankande, P.S. Patwari Kshetra Dhernath, District Champawat. 2. Narayan Singh S/o Sri Nath Singh R/o Village Jankande, P.S. Patwari Kshetra Dhernath, District Champawat. ...…………. Appellants 2 Versus State of Uttaranchal ...…………. Respondent Mr B.S. Adhikari, Advocate, present for the appellants. Mr. M.A. Khan, Brief Holder, present for respondent State. Coram : Hon’ble Prafulla C. Pant, J. Hon’ble V. K. Bist, J. Hon. Prafulla C. Pant, J (oral) These two appeals, preferred under Section 374 of the Code of Criminal Procedure, 1973 (for short Cr.P.C.), are directed against the judgment and order dated 25.07.2001, passed by Sessions Judge, Pithoragarh, in Sessions Trial No. 30 of 1995, whereby appellant Chandan Singh has been convicted under Section 304 Part I and 201 of the Indian Penal Code, 1860 (for short I.P.C.). The other appellants, namely Umedi Devi and Narayan Singh are convicted under Section 201 of I.P.C. only, and each one of them has been sentenced to rigorous imprisonment for a period of three years. Appellant Chandan Singh was directed by the trial court to undergo rigorous imprisonment for a period of ten years under Section 304 Part I of I.P.C., and rigorous imprisonment for a period of three years under Section 201 of I.P.C. 3 2) Heard learned counsel for the parties and perused the lower court record. 3) Prosecution story, in brief, is that Sita Devi (deceased), daughter of P.W. 1 Guman Singh (informant), got married to Suresh Singh (youngest brother of appellant Chandan Singh) about eight months before her death. After her marriage with Suresh Singh (P.W. 2) property was partitioned between the brothers and her husband. Narayan Singh (another appellant) was also brother of P.W. 2 Suresh Singh. It appears that Chandan Singh (appellant) was not satisfied with the partition and he used to quarrel with her sister-in-law Sita Devi (deceased). On 16.07.1994, Suresh Singh (P.W. 2) had gone to village Jankande, leaving his wife in Village Jakh. Prosecution’s case is that Suresh Singh had land in village Jankande as well as in village Jakh, where he used to live with his wife. When he (P.W. 2) came back to his house from Jankande, his wife was in coma, and died soon thereafter. Narayan Singh, another appellant, and one person were sent to the house of father of the deceased in village Sirmoli to inform about the death of Sita Devi. Since, P.W. 1 Guman Singh suspected foul play and unnatural death of his daughter, he asked Narayan Singh to report the matter to Patwari. Again, on the next day morning, two persons namely Prakash Singh and Bachi Singh (both accused but acquitted by the trial court) were sent to village Sirmoli to request Guman Singh to come to village Jakh. However, Guman Singh 4 insisted that he would come only with the Patwari (a revenue official having police powers). Thereafter, accused / appellants Chandan Singh, Narayan Singh along with some other villagers took the dead body for cremation, and consigned the same to flames. Meanwhile, P.W. 4 Laxman Singh, Patwari of the area, with Guman Singh (P.W. 1) reached at the cremation place. P.W. 1 Guman Singh gave a first information report (Ext. A –1) on 17.07.1994, at about 08:00 P.M. to the Patwari, who got registered Crime No. 02 of 1994, against accused Chandan Singh and his wife Umedi Devi and some others, relating to offences punishable under Section 302 and 201 of I.P.C. The crime was investigated by P.W. 4 Laxman Singh, Patwari of Patti Dhernath. He collected the ashes, blood stained stones and soil from the cremation place, interrogated the witnesses, and got recorded statement of P.W. 3 Basanti Devi by Judicial Magistrate / Munsif, Pithoragarh, where after, he submitted charge sheet (Ext. A –11) against accused / appellants Chandan Singh, Umedi Devi, Narayan Singh and three others, namely Bachi Singh, Prakash Singh and Kalyan Singh. 4) The Chief Judicial Magistrate, Pithoragarh, on receiving the charge sheet, after giving necessary copies to the accused, as required under Section 207 of Cr.P.C., committed the case to the court of sessions for trial. Learned Sessions Judge, Pithoragarh, on 1st of June 1996, after hearing the parties, framed charge of offences 5 punishable under Section 302 and 201 of I.P.C. against accused Chandan Singh, and a separate charge was framed against accused Umedi Devi relating to offences punishable under Section 302 read with Section 34 and 201 read with Section 34 of I.P.C. Against rest of the accused, namely Narayan Singh, Bachi Singh, Prakash Singh and Kalyan Singh only charge of offence punishable under Section 201 of I.P.C. was framed. All the accused pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1 Guman Singh (informant and father of the deceased); P.W. 2 Suresh Singh, husband of the deceased (declared hostile); P.W. 3 Basanti Devi (declared hostile); and P.W. 4 Laxman Singh (the Investigation Officer). The oral and documentary evidence was put to the accused under Section 313 of Cr.P.C., in reply to which they accepted it that Sita Devi was married to Suresh Singh and died in the year 1994, but the rest of the evidence was denied as false. However, no evidence in defence was adduced. The trial court, after hearing the parties, found charge of offence punishable under Section 304 Part I and that of Section 201 of I.P.C. proved against accused / appellant Chandan Singh, and that of one punishable under Section 201 of I.P.C. against accused / appellants Umedi Devi and Narayan Singh. Rest of the accused Prakash Singh, Kalyan Singh and Bachi Singh were found not guilty of the charge of offence punishable under Section 201 of I.P.C., and acquitted of the same. After hearing on sentence, convict Chandan Singh was sentenced to 6 rigorous imprisonment for a period of ten years under Section 304 Part I of I.P.C., and rigorous imprisonment for a period of three years under Section 201 of I.P.C. Each one of the other two convicts Narayan Singh and Umedi Devi was sentenced to rigorous imprisonment for a period of three years under Section 201 of I.P.C. Aggrieved by said judgment and order dated 25.07.2001, these two appeals are filed by the convicts. 5) In the present case, since the dead body had already been consigned to flames, as such, there is no medical evidence on record to prove unnatural death of the deceased. Though, there is report of the Forensic Science Laboratory regarding the ashes collected and sent to it for examination, but in that report simply it is mentioned that the ashes were that of human origin. It leads the court to nowhere as from the cremation ground the ashes could have related to anyone of the bodies consigned to flames there. As to some blood stained stones and soil etc. collected from the cremation ground, the Forensic Science Laboratory has reported that in the soil collected and sent for examination, there were some bloodstains found but the same could not be identified and classified. In the above circumstances, we have to bank on the oral testimony of the witnesses. 6) P.W. 1 Guman Singh, father of the deceased is informant, who has stated that his daughter got married to Suresh Singh (P.W. 2) where after a partition took place 7 between the brothers of Suresh Singh. The witness has further stated that Chandan Singh was not happy with his share and used to quarrel with Sita Devi. He admits that on the day of incident Narayan Singh (appellant) and Kalyan Singh came to him, at about 10:00 P.M. in the night, and told that Sita Devi has died. According to this witness initially the two told that Sita Devi died due to Diarrhoea and vomitting, and when they were asked in a stern voice they told him that Sita Devi died by getting herself hanged. P.W. 1 Guman Singh further states that on this he asked that since his daughter has been killed the report should be made to the Patwari. The witness (P.W. 1) further states that on the next day morning Bachi Singh and Prakash Singh (accused who are acquitted by the trial court) also came to him and requested him to come to village to see his daughter’s face. The witness has further stated that he went there after two hours, but by then the body of Sita Devi had already been consigned to flames. P.W. 1 Guman Singh further states that he lodged first information report (Ext. A –1) with the Patwari of the area. 7) It is pertinent to mention here that it is not a case of demand of dowry, as such, Section 113A or Section 133B of the Indian Evidence Act, 1872, are of no help to the prosecution. In other words, the burden lies on the prosecution to prove the charge beyond reasonable doubt against accused and no presumption can be drawn against the accused. As far as the statement of P.W. 1 Guman 8 Singh is concerned, his statement does not disclose as to actually how his daughter Sita Devi died. Even it is not clear whether she died natural death due to diarrhoea or was got injured and killed. Therefore, we have to now appreciate the other evidence adduced on behalf of the prosecution. 8) P.W. 2 Suresh Singh is husband of the deceased, who has stated that on the day of incident, he had gone to village Jankande to bring rice. He has further told that his wife was suffering from diarrhoea and vomitting, but on that day her condition was not bad, but by the time he came back at 08:00 P.M., he saw that his wife was almost unconscious and unable to speak. The witness states that his wife was not bleeding from anywhere. At this stage prosecution got declared the witness hostile, and cross examined him, but nothing has come in his cross examination. P.W. 2 Suresh Singh has stated that Narayan Singh had accompanied him to Jankande and he called him from there and sent to the house of his father- in-law to inform about the death of his wife. Since, this witness was also not in the village Jakh, as such, his statement also does not throw any light if accused / appellants Chandan Singh gave a blow with the carpenter’s axe (BASULA) on the head of Sita Devi. 9) Now statement of third witness i.e. P.W. 3 Basanti Devi is required to be examined. She has also turned hostile and did not support the prosecution story. 9 She has simply stated that on the day of incident Umedi Devi quarrelled with Sita Devi, but regarding rest of the prosecution story she says that she did not see Chandan Singh causing hurt to Sita Devi with carpenter’s axe. From the lower court record it appears that Investigating Officer got recorded statement of this witness (P.W. 3) under Section 164 of Cr.P.C. by Judicial Magistrate, I Class / Munsif, Pithoragarh on 16.08.1994, in which she stated that Chandan Singh gave a blow on the head of Sita Devi with BASULA (carpenter’s axe). But for the reasons best known to the prosecution this statement was neither got proved by examining the Magistrate, nor got formal proof dispensed with through the defence counsel. Not only this, the statement was not shown to P.W. 3 Basanti Devi to seek her reply that the aforementioned statement bears her signature. In the circumstances, this court finds that the trial court has erred in law in relying the statement said to have been recorded under Section 164 of Cr.P.C. 10) P.W. 4 Laxman Singh is the Patwari, who investigated the crime, and he is not witness of the fact relating to culpable homicide of Sita Devi. 11) Having re-appreciated entire evidence on record afresh, we are of the view that it is not proved on the record beyond reasonable doubt as against the appellant Chandan Singh that he committed culpable homicide not amounting to murder of Sita Devi. It is also not proved 10 on the record that to conceal or cause disappearance of evidence the dead body was consigned to flames. As admitted by P.W. 1 Guman Singh himself as many as four persons, two on the day of incident, and two on the next day, came to him to call him to see the body of Sita Devi who had died in her husband’s house. Since, the case of the defence is that deceased had died natural death after she suffered from dehydration, it was natural that the accused and the villagers after waiting for Guman Singh performed the last rites of the deceased. That being so, charge of offence punishable under Section 201 of I.P.C. cannot be said to have been proved beyond reasonable doubt against any of the accused / appellants. 12) Accordingly, both the appeals are allowed. Appellant Chandan Singh is acquitted of the charge of offences punishable under Section 304 Part I and 201 of I.P.C. Appellants Umedi Devi and Narayan Singh are acquitted of the charge of offence punishable under Section 201 of I.P.C. They are on bail. They need not to surrender. Their bail bonds and cancelled and sureties are discharged. The lower court record be sent back. (V.K. Bist, J.) (Prafulla C. Pant, J.) Dt. March 08, 2011. H. Negi 11 12 13