1 IN THE HIGH COURT OF JUDICATUARE FOR RAJASTHAN AT JODHPUR. JUDGMENT Kesar Singh & ors. vs. The State of Rajasthan D.B. Criminal Appeal No.45/2001 under Section 374(2), Cr.P.C. against the judgment dated 19.12.2000 passed by the learned Special Judge, SC & ST (Prevention of Atrocities Cases) and Addl. Sessions Judge, Pratapgarh camp Chittorgarh in Sessions Case No.148/2000. Date of Judgment: May 15th ,2008. PRESENT HON'BLE MR. PRAKASH TATIA, J. HON'BLE MR. CHAND MAL TOTLA,J. Mr. S.G. Ojha, for the appellants. Mr. V.R. Mehta, P.P. for the State. .. BY THE COURT( Per Hon'ble Mr.Tatia,J): Three convicts Kesar Singh, Sharvan Singh and Mst. Badami Bai have preferred this appeal to challenge the judgment and order dated 19.12.2000 passed by the court of Special Judge, SC & ST( Prevention of Atrocities Cases) and Addl. Sessions Judge, Pratapgarh in Sessions Case No.148/2000 by which the trial court convicted the three appellants for the charge under Section 302/34, IPC and all 2 have been sentenced to undergo life imprisonment and with a fine of Rs.10,000/- each and in default of payment of fine, to undergo two year's simple imprisonment. During pendency of this appeal, the appellant no.2 Sharvan Singh died and his appeal abated, therefore, the present appeal is on behalf of appellant no.1-Kesar Singh and appellant no.3 Mst. Badami Bai. The appellants no.2 and 3 are brother and mother of appellant no.1 respectively. As per the prosecution case, on 2.9.1996, one Laxman resident of Rawatbhata gave an oral report which was transcribed as Ex.P.5. In the report Ex.P.5 he stated that his sister Asha is wife of Kesar Singh and their marriage took place about 14-15 years ago. Asha had three daughters and one son. Asha's husband (brother-in-law of the complainant) used to beat his wife Asha. On the day of Rakhi, his sister came to the house of the complainant and told that her mother-in-law and husband and brother-in-law Sharawan Singh are harassing her. At that time complainant's mother Ganga and complainant's wife Prem were also present. According to the complainant, his sister told that her mother-in-law and her husband used to say that she is black and not beautiful. 3 In the said report, he stated that because of torture, her sister hanged herself and died. Accused Kesar Singh himself came to the residence of complainant and informed him about the death of victim Asha. The complainant went to the sister's house and found that his sister was lying dead in the house of his brother-in-law accused. The FIR No.209/96, under Section 306 and 498A was registered. After investigation, challan was filed against above three accused under Sections 306 and 498A, IPC. The case was committed to the Sessions Court referred above, where charges under Section 306 and 498A were framed against the appellants. The appellants denied the charges and sought trial. During trial, 14 witnesses were examined who are complainant PW-6 Laxman, eye-witnesses PW-7 Munni, PW-13 Ganga-mother of the deceased, PW-11 Prem-wife of complainant and the other witnesses who are precluding neighbours to the house of the victim etc. and the doctor who conducted the post-mortem of the victim. Thereafter, the learned public prosecutor on 29.9.1999 submitted an application for taking cognizance of commission of offence under Section 302 and 302/34, IPC against all the three accused persons. The trial court, after hearing the 4 parties, vide order dated 28.10.1999 altered the charge and re-framed the charge against the accused under Section 302, IPC and against accused Sharwan Singh and Mst. Badami Bai under Section 302/34, IPC and deleted the charge under Section 306, IPC. The above newly framed charges were denied by all the accused and they sought trial for newly framed charges. After framing of charge under Section 302, IPC against appellant no.1 and under Section 302/34, IPC against appellant nos.2 and 3, prosecution again examined witnesses PW-1 Munni Devi (old PW-7), PW-2 Geeta (old PW-10), PW-3 Shanker Lal (old PW-12), PW-4 Devi Singh (old PW-1), PW-5 Laxman Singh (old PW-6), PW-6 Ganga (old PW-13). Evidence of rest of witnesses were accepted by the accused to be read in evidence. The accused's statements were recorded under Section 313, Cr.P.C. on fresh evidence. The accused denied the allegations against them and stated that the victim Asha was suffering from the disease schizophrenia and she was under treatment for said disease. Earlier also she fell in one well due to her mental condition. In defence, accused-appellants produced DW-1 Dr. Chandra 5 Shekhar, DW-2 Mohan Lal and DW-3 Ajmal Singh. The trial court, after considering the evidence of the parties, convicted the appellants under Section 302/34 IPC after rejecting the defence of the appellants that Asha committed suicide. It will be relevant to mention here that though the charge against appellant Kesar Singh was under Section 302, IPC, whereas charge against two other accused was under Section 302/34, IPC but appellant Kesar Singh has not been convicted under Section 302, IPC and has been convicted under Section 302/34, IPC along with other two accused persons for the same charge. The trial court while deciding the case proceeded under assumption that by the order of the trial court dated 28.10.1999 in place of two charges, one under Section 498A, IPC and another under Section 306, IPC, new and only charges under Section 302 and 302/34, were framed. Further, the trial court without recording acquittal of the accused from charge under Section 302, IPC, convicted the accused appellant no.1 Kesar Singh under Section 302/34, IPC. The learned counsel for the appellants vehemently submitted that in investigation, it was found that the victim 6 Asha committed suicide. The challan was filed under Section 306 and 498A, IC. The trial court framed the charges under Sections 306 and 498A, IPC. The trial court merely on the basis of the evidence of one witness PW-7 Munni, who had inimical relation with the appellant, framed charge against the appellants under Section 302, and 302/34, IPC. It is submitted that PW-7 Munni Devi was examined in the trial court twice, firstly before framing of charge under Section 302 and 302/34, IPC and secondly after framing above charge. She improved her statement in court from the statement which she gave on earlier occasion in court as well as from the statement she gave during investigation and that shows her strong enmity against the appellants. In improvement, she materially altered her statement to implicate the appellants in offence of murder. It is also submitted that the allegations of any of the relation of the deceased about committing cruelty and abetting Asha to commit suicide are absolutely vague, unbelievable and highly improbable in the facts of the case. The marriage of the appellant and respondent took place about 14-15 years ago. The victim had four children from appellant no.1 and during this entire period, no 7 unfortunate incident happened because of any act of appellants and the victim never complained about the conduct of the appellants nor her parents and family members ever complained. It is submitted that even framing of charge under Section 498A, IPC was without any basis and, therefore, the trial court did not thought it fit to convict the appellant under Section 498A, IPC. In that situation, committing heinous offence of murder by all the three appellants or even by appellant no.1-husband of the victim, cannot be believed. Even the complainant himself in his report, given to the police, clearly stated that his sister died because she hanged herself. According to the learned counsel for the appellants, it appears that the witness PW-7 Munni was more interested in levelling charge of murder of Asha against appellants, more than the interest shown by the family members of the victim Asha. The learned counsel for the appellants submitted that from medical evidence it is proved beyond doubt that the death is due to suicide and it was not due to murder by strangulation. The learned counsel for the appellants further 8 vehemently submitted that even no case of abetment for commission of suicide is made out against the appellants. The victim was suffering from serious ailment of schizophrenia and she was given treatment of said disease. She was admitted in the hospital and that fact has been proved from the evidence produced by the appellants which should not have been discarded lightly and there was no reason for disbelieving the documentary evidence and the doctor's statement. It is also submitted that the evidence of other neighbour witnesses about ill-treatment to Asha also is vague and cannot be cause for committing suicide by the victim. It is also submitted that the victim died because of her own assumed frustration. The learned public prosecutor vehemently submitted that the victim died due to strangulation and the pressure on the neck. The accused were present in the house itself and they did not report the matter to the police if it was case of suicide and not a case of murder. It is also submitted that from the site report, it is clear that the victim Asha could not have hanged herself in the situation as was on the spot just after the death of victim Asha. The appellants did not 9 explain how that unfortunate event happened inspite of the fact that in ordinary course that fact was in their specific knowledge. It is also submitted that the evidence cannot be discarded on the ground of some dispute between the accused and the witnesses. The statement of PW-7 Munni finds support from the statement of neighbours and all surrounding circumstances. The victim's nearest relatives proved the fact that the victim was tortured by the appellants and, therefore, the appellants had no good relation with the victim and, therefore, before PW-7 Munni, they killed victim Asha. We considered the submissions of the learned counsel for the parties and perused the record. As said in the preceding paras, the oral report submitted by the brother of the deceased Laxman (PW-6) contains the allegations that his sister Asha was suffering torture from her husband and mother-in-law. It is alleged that they used to beat her, however, in the written report, there is no mention of any specific event of bad treatment to Asha by the appellants. In his statement in the trial court on 17.2.1998, PW-6 Laxman stated that the accused-appellant no.1, husband of the victim, used to tell that Asha is black in colour and is 10 not beautiful. He stated that her sister because of said satires, either died or she has been killed by the accused. In cross-examination, he admitted that because of any earlier beating to victim Asha, she was not examined by any doctor, and such event in the families is normal event. The matter was never reported to any police station, nor any meeting of members of the community was called because of ill- treatment to Asha. In cross-examination, he stated that marriage of Asha took place with appellant no.1 about 20 years before the date of incident. PW-11 Prem wife of PW-6 Laxman, in her statement recorded on 7.4.1998 did not support the prosecution case and was not produced again in evidence after framing the charge under Section 302 and 302/34, IPC by prosecution and accused appellants did not wish to cross-examine the witness PW-11 Prem again. In cross-examination, she (PW-11 Prem) admitted that Asha, in the presence of her husband and her mother-in-law, never complained that she may be killed by her in-laws. She stated that on the occasion of Rakhi, deceased Asha came happily to her parents' house and went from there happily. Therefore, PW-11 Prem contradicted her 11 husband's statement that on occasion of Rakhi, Smt. Asha had complained against accused appellants. PW-13 Ganga in the trial court (on 4.2.1999) admitted that marriage of appellant no.1 with Asha took place about 10 years ago and Asha had three daughters and one son. She used to go to her husband's house and was coming to them also regularly. She alleged that Asha's in-law's used to tell that Asha is of dark colour. They used to harass deceased Asha. In examination-in-chief, she stated that on the occasion of Rakhi, the victim Asha came to her house but she did not tell anything (obviously about her ill-treatment by in-laws) to her. Asha only told that her mother-in-law and husband used to quarrel with her. In her statement on 4.2.1999 she admitted that on the Rakhi day, Asha and her daughter-in-law went together to her husband's house and her daughter-in-law Prem dropped before Asha's in-laws' house. In cross- examination she admitted that Asha married to appellant no.1, 15 years ago from the time of her death and Asha's son was of the age of 12 years. There is no specific allegation of any specific incident of beating or harassment of Asha by appellant no.1 or his family members. Victim's mother PW-13 12 Ganga also contradicted her son's statement. It will be worthwhile to mention here that witness PW-7 Munni and PW-8 Hariom Sharma, PW-9 Ram Narain and PW-10 Geeta are neighbours of the appellants. The witness PW-9 Hariom Sharma only stated that the deceased Asha used to complain about her ill-treatment by the appellants but that appears to be about some incident of some quarrels which were not taken seriously either by the neighbours or by the family members of the victim and witnesses Ram Narayan (PW-9) and Geeta (PW-10) did not support the prosecution case. Not only this but the complainant in his statement in court itself again admitted that Asha might have committed suicide and that was the fact mentioned in the information submitted by him to the police after the time of incident. It will be further relevant to mention here that in the report (Ex.P.5) submitted by Laxman, brother of the deceased to the police, he stated that appellant no.1 came to his house and told him that his sister, wife of appellant no,1, has died. In that situation, appellant no.1 did not hide the information of death of his wife from the family members of his wife and the complainant, rather he himself went to the house of the 13 brother-in-law and informed about the incident before the body was removed by the police from the house of the accused-appellants. Thereafter, the complainant himself came to the house of the victim and the appellants and thereafter, he reported the matter to the police with allegation that her sister has died by hanging herself. From the evidence produced by the prosecution, it is clear that the allegation of committing serious or grave cruelty upon the victim Asha by any of the appellants, is not supported by any trustworthy evidence. The victim's family members also had no serious complaint about the conduct of any of the appellants and particularly, about the conduct of appellant no.1 husband of the victim. The last alleged complaint of Asha(deceased) was on the occasion of Rakhi when according to the complainant, she complained that she is ill-treated by the appellants and his family members but that evidence was contradicted by the complainant's own wife Prem and finds no support from the statement of his mother Smt. Ganga. In view of the above, the appellants could not have been convicted under Section 498A, IPC. So far as the question how Asha died, there is no quarrel that she died unnatural death. The only question is that 14 whether the death was caused by the appellants or by appellant no.1 alone. For this, there is only evidence of PW-7 Munni Devi, who was examined on 19.2.1998 and again after re-framing of the charge on 26.5.2000. In her statement in court on 19.2.1998, she stated that in the night at about 1.30 a.m., she heard voice of Asha who was crying that Bhabhiji save me and, thereafter, stated that Kesar Singh put one red cloth on the neck of deceased Asha and due that she(Asha) fell down and she died. She materially improved this statement when she was again examined on 26.5.2000. She stated that at the relevant time, the appellant Kesar Singh and his mother strongly grabbed deceased Asha in one red cloth. At that time, Asha was shouting Bhabhiji save me, as she saw me. Thereafter, the appellant Kesar Singh husband of the victim stretched red colour, one meter cloth, in the neck of the deceased. In view of such material improvement in her statement in the trial itself, made her absolutely unbelievable witness. It will be worthwhile to mention here that in her earlier statement given on 19.2.1998, she made material improvement from her statement given during investigation with which she was confronted. Apart from above, in cross- 15 examination, she contradicted her earlier statement regarding various evidence. In view of the undisputed fact that there was a dispute between Munni Devi with the family of the appellants, it is absolutely unsafe to rely upon her statement. The enmity between the witnesses and the appellants is if ignored, even then her statement appears to be not trustworthy. Apart from above statement of PW-1 Munni Devi, there is no evidence of any witness to prove the fact of killing of Asha by appellant no.1 Kesar Singh or appellant no.1 with the help of appellant nos.2 and 3. Merely because of unnatural death, neither the husband nor the family members of the appellant-husband, can be convicted and particularly when it is a case where from the evidence of the family members of the victim, it is proved that in fact there was no much quarrel between the husband and wife except a few minor incidents and the relations of the husband and wife were good as admitted by the wife of real brother of the victim, who stated that the victim came on the occasion of Rakhi in her parents house happily and went from there happily. As per the mother of the victim, the victim and Prem, wife of brother of the 16 deceased went together from the house of victim's parents and victim's brother's wife stated that there was no dispute between the husband and wife. If we look into the site report prepared by the Investigating Officer, it is clear that during investigation, the Investigating Agency found that the victim did not die at the place as given by Munni Devi (PW-7). As per the site report, the victim was found dead in a room. Near the body, there was a cot and near the cot, there was a drum which was covered from top. There was one bed-sheet(chaddar). There was a hook on the roof of the room. At that time victim's husband(appellant) was present when the site report was prepared and he told that Asha died by hanging herself in the hook of the roof. As per the post-mortem report, the victim had two injuries, one on the forehead which, admittedly, was not caused by any of the appellants during course of alleged hanging of Asha. Admittedly, that injury came on the forehead of the victim much before this incident as admitted by the prosecution witnesses. There is only one injury on the body of the lady of good age on the neck and the cause of death as per medical evidence is “Asphyxia as a result of 17 hanging.” No injuries by nails which would have been in case she would have been subjected to strangulation by some one else in efforts to save herself. As per statement of PW-14 Dr. Anil Kumar Gupta, who conducted the post-mortem, on neck, ligature mark was on the front both sides of neck above level of hyoid of 4 cm width which was brown. There was no other marks of wound which may come by dragging or by use of nails. In that situation, the lady could have resisted any effort of others, if she would have any danger of suffering injuries from three persons or even from one person. Even the doctor has not stated that there was fracture in hyoid bone which would have been in case injury would have been inflicted by some one else on the neck of the lady. It is more probable that the injury which was found on the neck of victim may be caused without injury to hyoid bone when one hangs herself so as to give all weight of the body on the neck of the victim. When the ocular evidence which has been produced by the prosecution, which is not believable and the evidence only says that the pressure was put on the neck of the deceased without giving weight by the entire body on the neck of the deceased and, therefore, the deceased would have died with 18 the fracture of hyoid bone if she would have been under a rope of cloth and the victim was running. The Division Bench of this Court in the case of Banshi v. State of Rajasthan ( 1990 RCC 26) had an occasion to consider the almost identical injuries as found on the neck of the appellant in this case. In Banshi Lal's case (supra), there was ligature present on front and both lateral side of neck. Length of ligature mark is 20 cm. And width 2 cm on front one centimeter on both sides of neck. After consider the law in detail and particularly, as said in the “Medical Jurisprudence and Toxicology by Modi”, it has been noticed that in respects of hanging according to Modi's Medical Jurisprudence and Toxicology, the fracture of the larynx and trachea is very rare, saliva runs out of the mouth down on the chin and abrasion round about the edges of the ligature mark are common. Fractures of the larynx, trachea and hyoid bone are often found. Carotid, arteries and internal coats are ordinarily ruptured. Saliva is not seen running out of the mouth. In this case, there was no fracture of hyoid bone, larynx, trachea, carotid, arteries and internal coats were not found ruptured and abrasions on the neck were not found and round about 19 the edges of ligature marks. The facts of the case of Banshi (supra) on the point of injuries are identical and, therefore, in view of the above judgment of the Division Bench also, it appears that it was a case of suicide by the victim herself. In view of the above reasons, we do not find any evidence on the basis of which the appellants could have been convicted under Section 302 (appellant no.1) or appellant no.1 and appellant nos.2 and 3 under Section 302/34, IPC. The next question arises whether the appellants are guilty under Section 306, IPC though that charge has been altered by the trial court and the charge under Section 302/34, IPC was framed against the appellant no.1 and appellants no.2 and 3. Be it as it may, the totality of the facts and from the evidence produced by the prosecution it is clear that there is no specific allegation of committing any cruelty upon the victim by the appellants and further no circumstantial evidence in support of charge under Section 306, IPC on the basis of which it can be inferred that the victim had committed suicide because of any of the act of the appellants or the appellants or appellant no.1 has abetted the victim to commit the suicide. 20 In view of the above reasons, we found merit in this appeal and, therefore, the appeal of the appellants is allowed. The convictions and sentences of the appellants awarded by the trial court under Section 302/34, IPC are set aside. It is also held that the appellants are not guilty of committing any offence for which they were charged under Section 498A, IPC. The appellants are acquitted from the above charges. Since appellant no.2 has died, therefore, his appeal abated. The appellant no.3 Smt. Badami Bai is on bail, therefore, she need not to surrender. Her bail bonds are cancelled. Appellant no.1 Kesar Singh be released forthwith in this case and