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2004 DIGILAW 256 (UTT)

Kailash Chandra v. State of Uttaranchal

2004-10-05

B.C.KANDPAL, M.M.GHILDIYAL

body2004
Judgement _ This Criminal appeal arises out against the judgment and order dated 04-02-2002 passed by Sessions Judge, Pauri Garhwal In Sessions Trial no. 51 of 2000 State vs. Kailash Chandra and others u/s 304-6/34 IPC in alternative u/s 302 IPC and Section 3/4 of Dowry Prohibition Act, convicting the appellant Kallash Chandra u/s 302 IPC and sentencing thereon for life imprisonment. 2. Brief facts of the prosecution case, giving rise to this appeal, are that on 26-05-2000 at about 7:00 a.m. one of the accused Natthi Prasad (non appellant) filed a written report with the Patwari Patti Circle-3 South Modarsun stating therein that on 25-05-2000 at about 1:30 p.m. Smt. Sarojini Devi W/o Kailash Chandra (appellant) had committed suicide. The fact of the suicide was brought to the knowledge of aforesaid Natthi Prasad by his son Kallash Chandra (appellant). 3. On having received this information, the inquest was prepared on the dead body of Smt. Sarojinl Devi and thereafter her body was sent for postmortem. 4. The doctor, in the postmortem, found a ligature mark around the neck measuring 40cm. x 2cm. as ante mortem Injury. The doctor found that the death could be caused on account of asphyxia due to strangulation. The doctor also found that the death of Sarojini Devi could be caused on 25-05-2000 at about 1:30 p.m. 5. On 28-05-2000, one Manohar Lal brother of Sarojini Devi also lodged a report at Patwari Patti Circle South Modarsun stating therein that on 25.05.2000 at about 4:00 p.m. two persons came to his house and informed him that Sarojini Dev was seriously ill. On receiving this information, Manohar Lal reached village Chaumasu and saw his sister dead. He could gather the Information that Sarojinl Devi died at about 1:30 p.m. 6. Sarojini Devi was married with the appellant Kallash Chandra on 18-6-1995. 7. The report filed by Manohar Lal also reveals that Km. Santoshi D/o Natthi Prasad and Chiranji Lal S/o Natthi Prasad as well as Natthi Prasad himself & Kailash Chandra husband of Smt. Sarojini Devi subjected to cruelty upon Sarojinl Devi on account of demand of dowry. As per the report, the accused Including the appellant, have demanded cash Rs. 50,000/-, Tape-recorder, Television as well as certain other articles in dowry. 8. As per the report, the accused Including the appellant, have demanded cash Rs. 50,000/-, Tape-recorder, Television as well as certain other articles in dowry. 8. On the report filed by Manohar Lal, a case u/s 304-B IPC and Section 3/4 of Dowry Prohibition Act was registered against all the accused persons. 9. The Investigation was started by Naib Tehslldar Govlnd Singh. Subsequently the investigation was transferred to regular police and Sri Mukesh Kumar, Circle Officer started investigating the case. 10. The Investigating Officer recorded statements of the witnesses and after completing the entire investigation; submitted the charge sheet against the accused persons. 11. After submission of the charge sheet, the accused persons were committed to the Court of Sessions and Sessions Court on 23-02-2001 framed the charges against all of the accused persons u/s 304-B/34 IPC and Section % of Dowry Prohibition Act. 12. The accused persons denied of the charges levelled against them and claimed their trial. 13. On 29-01-2002 an alternative charge u/s 302 IPC was also framed against the accused/appellant Kailash Chandra which was also denied by the appellant. 14. The prosecution, In order to support Its case, produced PW 1 Manohar Lal, PW 2 Devi Prasad, PW 3 Suchita Devi, PW 4 Sarojini Devi W/o Manohar Lal PW 5 Dr. Sanjay Prakash, PW 6 Sardar Singh, PW 7 Kallash Chandra-Patwari PW 8 Govind Singh Negi and PW 9 Mukesh Kumar, Circle Officer (Investigating Officer). 15. After the prosecution evidence was concluded, statement of the accused Including the appellant were recorded u/s 313 Cr.P.C. The accused persons did not adduce any evidence In their defence . 16. The learned court below, after having perused the entire evidence on record and hearing learned counsel for the parties, convicted the accused Kailash Chandra u/s 302 IPC and sentenced him to life Imprisonment vide judgement and order dated 04-02-2002. 17. The learned Trial Court vide the same judgment and order acquitted all the accused person i.e. Natthi Prasad, Km. Santoshi, Chiranji Lal and Kailash Chandra (appellant) of the charges u/s 304/34 IPC and Section 3/4 of Dowry Prohibition Act. 18. Feeling aggrieved by the aforesaid judgment and order passed by the learned Sessions Judge, Pauri Garhwal convicting the appellant u/s 302 IPC and sentencing thereon to life imprisonment, the appeal was preferred before this Court which has been placed before this Bench for disposal according to law. 19. 18. Feeling aggrieved by the aforesaid judgment and order passed by the learned Sessions Judge, Pauri Garhwal convicting the appellant u/s 302 IPC and sentencing thereon to life imprisonment, the appeal was preferred before this Court which has been placed before this Bench for disposal according to law. 19. We have heard learned counsel for the parties and perused the record . 20. It is worthy to mention here that against the impugned judgment acquitting the appellant of the charges under Sections 304-B and 3/4 of the Dowry Prohibition Act, no appeal has been preferred by the State. Therefore, it would be needless to record the findings with regard to that aspect of the matter. 21. Now, we have to assess the evidence in order to see whether the prosecution has proved the guilt of the appellant beyond reasonable doubt or not. 22. As per the first information report lodged by Manohar Lal, brother of the deceased Sarojini Devi, the appellant used to subject her to cruelty and on account of the same he murdered his wife Sarojini Devi on 25-05-2000. 23. As far as this question with regard to the demand of dowry is concerned, the same has not been established by way of any cogent and reliable evidence. Therefore, It is to be seen on the basis of the assessment of the evidence on record, whether It is a case of murder committed by the appellant or a case of suicide committed by Sarojlni Devi, deceased herself. 24. In order to reach to a definite conclusion we have again to assess the evidence produced by the prosecution in this regard. 25. Manohar Lal (P.W.1) Is the Informant of this case and he is the brother of the deceased. He has deposed in his evidence before the court that when he went to his sister's house, he saw that his sister Sarojini Devi was lying dead on the floor of the room. This witness in his cross examination has deposed that the appellant Kailash Chandra used to work as a 'Ojha'. He has also deposed that the appellant used to consume the liquor also. He has further deposed that on account of the behaviour of the appellant Kallash Chandra, his sister was under agony. This witness in his cross examination has deposed that the appellant Kailash Chandra used to work as a 'Ojha'. He has also deposed that the appellant used to consume the liquor also. He has further deposed that on account of the behaviour of the appellant Kallash Chandra, his sister was under agony. He has also deposed that the appellant used to absent from his house during night and on account of the same, Sarojini Devi deceased remained quite sad and she used to convey her sorrow to the Informant and other family members. 26. Devi Prasad (P.W.2) Is the father of the deceased. He has also stated in his cross examination that deceased Sarojini Devi was not satisfied with the occupation of the appellant Kailash Chandra. He has also deposed that 27. Suchita Devi (PW 3) has stated that the deceased Sarojini Devi was her sister-in-law (Nanad). She has also deposed that Sarojini Devi deceased was not saitisfied with the occupation of her husband and she remained under mental agony on account of the same. She also deposed that apart of the occupation of her husband, the' deceased never made any other sort of complaint. She has also deposed that the married life of the appellant Kailash Chandra and the deceased Sarojini was satisfactory. '28. Sarojini Devi (PW4) Is the sister-In-law of the deceased Sarojini Devi, she has deposed that Kailash Chandra was working as 'Ojha' and also used to beat his wife Sarojini Devi (deceased) after consuming liquor. She has also deposed that the deceased Sarojini Devi use to make complaint against the occupation of her husband. She has further deposed that married life of the appellant Kallash Chandra and' the deceased Sarojini Devi was satisfactory. 29. In case, if the evidence of the witnesses produced by the prosecution Is taken into consideration, then it clearly reveals that there could be a 'possibility for committing suicide by the deceased Sarojini Devi. The oral testimony produced by the prosecution will have to be. taken Into consideration In the light of the medical evidence adduced by the prosecution. 30. Dr. The oral testimony produced by the prosecution will have to be. taken Into consideration In the light of the medical evidence adduced by the prosecution. 30. Dr. Sanjay Prakash (P.W.S) has conducted autopsy on the body of the deceased Sarojini Devi and has mentioned In his postmortem report that there was a ligature mark measuring 40 x 2cm all around the neck situated below the chin in front at the level of C3 vertebrae, In back Interrupted on the side of neck. The doctor has also mentioned that there was a fracture of C3 and C4 vertebrae. The doctor has further mentioned In the report that the tongue of the deceased was bitten. He also opined that the cause of death of the deceased was on account of asphyxia. The doctor has also deposed In his evidence before the court that the bitten tongue could be a result of the fact that the deceased might have checked and controlled her voice by putting her tongue in between the teeth. 31. It is also important to mention here that the doctor did not find any external mark of Injury on any part of the body, which clearly rules out the possibility of any type of struggle made by the deceased before her death. In case, If this could have been the case of murder by way of strangulation or by way of hanging by the appellant, then there should have been any mark of injury on any part of the body of the deceased. 32. The doctor In his cross-examination has specifically deposed that the deceased could have tied the rope on her neck herself. He has also deposed that the deceased might have urinated before her death. This symptom as suggested by the doctor clearly indicates that the deceased 33. Further, the doctor found a hair-band as well as the bangles in the hands of the deceased. Had there been a case of murder then the deceased would have resisted on account of the same and the possibility of the broken bangle. In these circumstances could not be ruled out. 34. The overall assessment of the evidence clearly Indicates that the deceased was aggrieved by the occupation of her husband and on account of the same, the deceased remained under mental agony and with the result she committed suicide. In these circumstances could not be ruled out. 34. The overall assessment of the evidence clearly Indicates that the deceased was aggrieved by the occupation of her husband and on account of the same, the deceased remained under mental agony and with the result she committed suicide. The prosecution could not establish the guilt of the appellant with regard to the murder of the deceased committed by himself beyond reasonable doubt. 35. Learned trial court has criticized the conduct of the appellant by making the observation that the appellant was not present on any stage of the proceedings during the investigations. It has been observed that the appellant himself has not Informed the Patwari and cut the rope himself with which the deceased was hanging in order to give a colour of suicide. It has also been observed by the trial court that the appellant did not receive the dead body of the deceased Sarojini Devi after the post mortem examination and this unusual conduct of the accused clearly points out towards his guilt. 36. We do not find any substance In the observations recorded by the court belew. If the matter was reported by the father of the appellant instead of the appellant himself then the same does not go to show that the appellant Is guilty In the murder of his wife. Moreover, the site plan prepared by the Investigating Officer (Patwarl) on 26-05-2000 clearly Indicates that signature of Natthi Prasad father of the appellant finds place therein. Further Ext.Ka.13 is a site plan which has been prepared by the Naib Tehsildar on 02-06-2000 Indicates that the signature of the appellant Kailash Chandra finds place therein. Therefore, the circumstance clearly establishes this aspect that the appellant and his father were present at the spot on 26-05-2000 when the site plan was prepared by the Patwari as well as on 02-06-2000 again when site plan was prepared by Naib Tehsildar, hence, It cannot be said that the appellant showed his unusual conduct. Moreover, the conduct alone cannot be the basis to warrant to conviction of the appellant. It Is the burden of the prosecution to establish the guilt of the appellant beyond reasonable doubt In order to show that the appellant and only appellant Is responsible for committing the murder of his wife Sarojini Devi none else. 37. For the reasons stated above, we are of the. It Is the burden of the prosecution to establish the guilt of the appellant beyond reasonable doubt In order to show that the appellant and only appellant Is responsible for committing the murder of his wife Sarojini Devi none else. 37. For the reasons stated above, we are of the. considered view that the prosecution has utterly failed In bringing the guilt of the appellant to home beyond reasonable doubt. 38. We come to the conclusion that the Impugned judgment and order passed by the court below convicting the appellant under Section 302 and sentencing thereon is liable to set aside. 39. Accordingly the appeal is allowed. The order dated 04-02-2002 passed by Sessions Judge, Pauri Garhwal In Sessions Trial No. 51 of 2000 State vs. Kailash Chandra and others, convicting the appellant Kailash Chandra under Section 302 I.P.C. and sentencing thereon for life imprisonment is hereby set aside. 40. Record reveals that the appellant is in Jail, hence he shall be released forthwith unless wanted in any other case. 20 Uttaranchal Decisions 2005 (1)