IN THE HIGH COURT OF UTTARAKHAND AT NAINTIAL Criminal Appeal No. 582 of 2001 (Old No. 08 of 1991) Mohd. Ikram Sabri S/o Allauddin R/o Village Durgah Piran Kaliyar Police Station Kotwali, Roorkee, District Haridwar. ………………. Appellant Versus The State ………………. Respondent Mr. Rakesh thapliyal, Advocate assisted by Mr. Lalit Sharma, Advocate for the appellant. Mr. Amit Bhatt, Addl. Govt. Advocate assisted by Mr. M.A.Khan, Brief Holder for the respondent-State. Coram : Hon’ble Prafulla C.Pant, J. Hon’ble Dharam Veer, J. Hon. Prafulla C.Pant, J. (Oral) This appeal, preferred under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), is directed against the judgment and order dated 18.12.1990, passed by learned Additional Sessions Judge, Roorkee, in Sessions trial No. 208 of 1989, whereby accused / appellant Mohd. Ikram Sabri has been convicted under Section 302 of the Indian Penal Code, 1860 (hereinafter referred as I.P.C.), and sentenced to imprisonment for life. 2) Heard learned counsel for the parties and perused the lower court record. 3) Prosecution story, in brief, is that P.W. 1 Mohd. Ahtesham lodged first information report (Ext. A -1) with police station Roorkee on 22.10.1986, at 22:30 hours, against accused / appellant Mohd. Ikram Sabri and his two brothers, namely Gulam Farid and Gulam Moinuddin. It is alleged in the first Information report lodged by the complainant that accused Mohd. Ikram Sabri had a discord with his wife Rehana Parveen Sabri (deceased) as he wanted to remarry. On 22.10.1986, complainant received a call in Deoband (District Saharanpur) that Rehana Parveen has died. When the complainant came to Roorkee he was told by Shahnaz @ Baby, wife of one Irshd, that Gulam Farid, Gulam Moinuddin and Mohd. Ikram Sabri quarreled with Rehana Parveen and committed ‘MAAR PEET’ with her. On this Rehana Parveen went to the kitchen. She was followed by the above three. When Rehana Parveen came out of the kitchen she was unconscious and was taken to private nursing home in Roorkee from where she was brought back at 4:00 – 5:00 P.M., after her death. It is further alleged by the complainant that some poisonous substance was administered to the deceased. On the basis of the report (Ext. A -1), check report (Ext. A -4) was prepared by the police, who registered Crime No. 431 of 1986, relating to offences punishable under Section 302 and 201 of I.P.C. against the three accused, namely Mohd. Ikram Sabri (appellant) and his brothers Gulam Farid and Gulam Moinuddin. The police took the dead body of the deceased in their possession and prepared inquest report (Ext. A -12). It further prepared sketch of the dead body (Ext. A -10) and other necessary papers. The dead body was sent for postmortem examination. On 23.10.1986, at 12:30 P.M., the postmortem examination was conducted by Dr. Y.S. Bisht, a Medical Officer of H.M.C. Hospital, Haridwar. No external injuries were seen by the Doctor on the dead body. The Medical Officer, who conducted the autopsy opined that he could not ascertain the cause of death. Viscera was got preserved. Meanwhile, the Investigating Officer prepared the site plan (Ext. A -6) and interrogated the witnesses. The viscera appears to have been sent for chemical examination from where report (Ext. A -2) dated 31.12.1987 was received. According to the Chemical Examiner’s report viscera found containing Aluminium Phosphide (poison). After completion of investigation, the police submitted charge sheet (Ext. A - 3) against all the three accused for their trial, in respect of offences punishable under Section 302, 328 and 201 of I.P.C. On receipt of the charge sheet, the Magistrate 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. After hearing the parties on sentence, learned Additional Sessions Judge, Roorkee, framed charge of offences punishable under Section 302 read with Section 34 and Section 201 of I.P.C. against all the three accused, namely Mohd. Ikram Sabri, Gulam Farid and Gulam Moinudding, who pleaded not guilty and claimed to be tried, On this prosecution got examined P.W. 1 Mohd. Ahtesham (complainant) and P.W. 2 Abdul Rahim. No other witnesses were got examined by the prosecution as genuineness of the documents filed by the prosecution was admitted by the defence. The oral and documentary evidence was put to the accused / appellants under Section 313 of Cr.P.C., in reply to which they alleged the same to be false. It is alleged by Mohd. Ikram Sabri (present appellant) in his statement under Section 313 of Cr.P.C. that he had got seriously ill due to which his wife Rehana used to think about committing suicide. No evidence in defence is adduced on behalf of the accused. The trial court, after hearing the parties, found that the charge is not proved against two accsued Gulam Farid and Gulam Moinudding. However, it found accused / appellant Mohd. Iram Sabri guilty of charge of offence punishable under Section 302 of I.P.C. only. After hearing the parties on sentence, the accused / appellant was sentenced to imprisonment for life. Aggrieved by said judgment and order dated 18.12.1990, passed by the additional Sessions Judge, Roorkee, in Sessions Trial No. 208 of 1989, this appeal was preferred by the convict before the Allahabad High Court on 02.01.1991, where it was admitted on 03.01.1991. The appeal is received by transfer to this Court under Section 35 of the U.P. Re-organization Act, 2000, for its disposal. 4) Having gone through the record of the case, it is pertinent to mention here that the prosecution did not get examined alleged eyewitness Shahnaz @ Baby, who told the complainant that she saw the three accused committing ‘MAAR PEET’ with the deceased before she rushed to the kitchen. Neither the complainant P.W. 1 Mohd. Ahtesham, nor P.W. 2 Abdul Rahim, is the eyewitness, as such, now this case hinges on the circumstances brought on record by the prosecution as there is no eyewitness stating that accused / appellant has committed murder of his wife. From the cross-examination of P.W. 1 Mohd. Ahtesham, it is clear that he was in litigation with accused named in the first information report before the courts at Saharanpur. This witness in nephew (BHANJA) of the deceased. It is admitted by P.W. 1 Mohd. Ahtesham in his cross-examination that in the year 1988, Ikram Sabri (accused / appellant) got unwell and had to undergo surgery of his abdomen. He has further admitted that his case got complicated and he had to be taken to Post Graduate Institute of Medical Sciences, Chandigarh. P.W. 1 Mohd. Ahtesham further admits that due to the illness of Mohd. Ikram Sabri (accused / appellant). Rehana Parveen Sabri (deceased) used to remain tense. This fact corroborates what the accused is stating in his statement under Section 313 of Cr.P.C. that due to the illness of her husband, the deceased often think of committing suicide. P.W. 2 Abdul Rehman has also admitted in his cross- examination that Mohd. Ikram Sabri remained ill for a long time in 1985 and medical treatment was given to him in Meerut and Chandigarh. He has also admitted that the accused / appellant Ikram Sabri underwent surgery of his abdomen. 5) Apart form the above facts, it is admitted by P.W. 1 Mohd. Ahtesham that he was told that the accused including Mohd. Ikram Sabri (accused /appellant) took the deceased in unconscious condition to a private nursing home in Roorkee, from where she returned dead. Learned counsel for the appellant argued that had accused / appellant Mohd. Ikram Sabri any intention to kill his wife he would not have taken his wife to hospital to save her. It is also to be mentioned here that, though, P.W. 1 Mohd. Ahtesham alleges that Shahnaz @ Baby told him that MAAR PEET took place, but there is not ante mortem injury found by the Medical Officer at the time of postmortem examination. 6) After going through the entire record and considering the submission of learned counsel for the parties, in the above circumstances, we do not find that the circumstantial evidence, brought on record by the prosecution suggests that it could have been only Mohd. Ikram Sabri, who caused death of his wife Rehana Parveen Sabri. There is strong reason on record indication that the deceased Rehana Parveen might have committed suicide by consuming the poison, as the accused along with his brothers has taken the deceased to hospital to save her life before she died. 7) For the reasons as discussed above, we are of the view that the trial court has erred in law by convicting the appellant Mohd. Ikram Sabri on the charge of offence punishable under Section 302 of I.P.C., which is not proved against him beyond reasonable doubt. Since, the charge does not stand proved the appellant deserves to be acquitted. Accordingly, is appeal is allowed. The judgment and order dated 18.12.1990, passed by Additional Sessions Judge, Roorkee, in Sessions Trial No. 208 of 1989, to the extent of convicting the appellant under Section 302 of I.P.C. and sentencing him to imprisonment for life, is set aside. The appellant Mohd. Ikram Sabri is acquitted of the charge of offence punishable under Section 302 of I.P.C. also. He is on bail. He need not to surrender. (Dharam Veer, J.) (Prafulla C. Pant, J.) Dt. March 17, 2008. H. Negi