JUDGMENT [Per: Hon. Prafulla C. Pant, J.] This appeal, preferred under Section 374 of the Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), is directed against the judgment and order dated 16-04-1993, passed by learned Sessions Judge, Tehri Garhwal, in Sessions trial No. 24 of 1989, whereby accused/appellants Ranvir Singh and Jaibir Singh have been convicted under section 302 read with Section 34 of the Indian Penal Code, 1860 (hereinafter referred as I.P.C.). Each one of the convicts is sentenced to imprisonment for life under Section 302 of I.P.C. Accused/appellant No.1 Ranvir Singh is further convicted and sentenced to rigorous imprisonment for a period of three years under Section 498-Aof I.P.C. 2. Heard learned counsel for the parties and perused the lower court record. 3. Prosecution story, in brief, is that Smt. Sushila Devi (deceased) was married to accused/appellants Ranvir Singh for some more than two years before the date of incident. In the intervening night of 22nd and 23rd of January 1989, dead body of Sushila Devi was found hanging from a branch of tree in the jungle near Village Kyari, Patti Paligarh, District Tehri Garhwal. Prosecution case is that after marriage accused/appellants Ranvir Singh used to harass his wife Sushila Devi for non fulfillment of demand of dowry and committed mental and physical cruelty against her. Suman Singh (P.W.6) sighted the dead body hanging from a tree and immediately informed the Village Pradhan Ami Chand (P.w.3) on 23-01-1989. On the same day, Ami Chand made a report (Ext. A-1) to the Patti Patwari Paligarh, in which he has stated that the deceased appears to have committed suicide. [In the interior hills of Uttarakhand, certain Revenue Officials are given police powers, under U.P. Government Notification No. 494/ VIII-418 - 16 dated 7th March 1916]. Thereafter, on the next day, i.e. 24-01-1989, Patwari went to the spot, got the dead body brought down on the ground, prepared the inquest report (Ext.A-11). At the time of preparing the inquest report it was found that there were some ante mortem injuries visible on the body of the deceased, as such, it was suspected that body of the deceased might have been hanged after causing injuries to her. On that very day, Balbir Singh (P.W.4), brother of the deceased, who was also present at the time of preparation of the inquest report gave first information report (Ext. On that very day, Balbir Singh (P.W.4), brother of the deceased, who was also present at the time of preparation of the inquest report gave first information report (Ext. A -2) to the Patwari alleging that his sister was subjected to cruelty for non-fulfillment of demand of dowry and she has been murdered by her husband and in-laws. On the basis of said report Padam Singh (P.W. 10), Patwari of the area, registered crime No. 01 of 1989, against accused/appellants Ranvir Singh, his brother Jaibir Singh, his father Shyam Chand and mother Jagdei, relating to offences punishable under Section 304-B, 498-Aand 201 of I.P.C. and one relating to office punishable under Section 4/6 of the Dowry Prohibition Act, 1961. He started the investigation and interrogated the witnesses. At the time of preparing the inquest report the aforesaid Patwari also prepared sketch of the dead body (Ext. A -12); police form No. 13 (Ext. A -13) and site plan (Ext. A -14). He got sent the dead body of Sushila Devi in a sealed cover for postmortem examination. The postmortem examination was conducted on 25-01-1989, at 10:30 A.M., by team of two Medical Officers, namely Dr. R.K. Pant (PW.7) and one Dr. S.S. Rawat. They noticed some ante mortem injuries on the body and ligature mark around the neck. The two Medical Officers gave opinion that cause of death was asphyxia due to hanging. Meanwhile, it appears that Iftikharuddin (PW.9), who was Sub Divisional Magistrate of Tehri, also made enquiries, and recorded the statements of the accused under Section 164 of Cr.P.C. The investigation which was being conducted by Patwari, was transferred to Bal Krishna Badoni (P.W.11) Naib Tehsildar, who after completing the investigation, submitted charge sheet (Ext. A -19) against accused Ranvir Singh, Jaibir Singh and Shyam Chand. (The blood stained clothes and articles found from the person of dead body were sent for chemical examination from where report was received that it contained human blood.) 4. Judicial Magistrate, on receipt of the charge sheet, after giving necessary copies to the accused, as required under Section 207 of Cr.P.C., appears to have committed the case to the court of sessions, for trial. Judicial Magistrate, on receipt of the charge sheet, after giving necessary copies to the accused, as required under Section 207 of Cr.P.C., appears to have committed the case to the court of sessions, for trial. On 05-07-1989, learned Sessions Judge, Tehri Garhwal, after hearing the parties, framed charge of offences punishable under Section 498-A and under Section 302 read with Section 34 of I.P.C. against the accused / appellants and their father Shyam Chand. Also, charge of offence punishable under Section 304-B of I.P.C. was also framed against all the three accused. All the accused pleaded not guilty and claimed to be tried. On this, prosecution got examined PW.1 Sunder Singh (declared hostile); PW.2 Bharat Singh (declared hostile); PW.3 Ami Chand (who gave the report (Ext. A-1) to the Patwari); P.W.4 Balbir Singh (complainant and brother of the deceased); PW.5 Kunwar Singh: PW.6 Suman Singh (who first sighted the dead body and informed the village Pradhan); PW.7 Dr. RK. Pant (who conducted the postmortem examination on the dead body of Sushila Devi); PW.8 Kamanand (declared hostile); PW.9 Iftikharuddin (Sub Divisional Magistrate, who recorded the statements under Section 164 of Cr.P.C. of the accused); PW.10 Patwari Padam Singh (who initially investigated the crime) and PW.11 Bal Krishna Badoni (who submitted charge sheet (Ext. A-19) against the accused. The oral and documentary evidence was put to the accused under Section 313 of Cr.P.C., in reply to which they alleged the same to be false. It is further alleged by them that they have been implicated due to enmity. But, no evidence in defence was adduced. After hearing the parties, the trial court found accused Ranvir Singh and Jaibir Singh guilty of charge of offences punishable under Section 302 read with Section 34 of I.P.C. Accused Ranvir Singh is further found guilty of offence punishable under Section 498-A of I.P.C. After hearing the parties on sentence, the trial court sentenced convict Ranvir Singh to imprisonment for life (for committing murder of Sushila Devi) and rigorous imprisonment for a period of three years (for treating his wife Sushila Devi with cruelty). The convict Jaibir Singh was sentenced to imprisonment for life under Section 302 read with Section 34 of I.P.C. However, Jaibir Singh was acquitted of charge of offence punishable under Section 498-A of I.P.C. (Shyam Chand was acquitted of all the charges). The convict Jaibir Singh was sentenced to imprisonment for life under Section 302 read with Section 34 of I.P.C. However, Jaibir Singh was acquitted of charge of offence punishable under Section 498-A of I.P.C. (Shyam Chand was acquitted of all the charges). Aggrieved by said judgment and order dated 16-04-1993, passed by learned Sessions Judge, Tehri Garhwal, in Sessions Trial No. 24 of 1989, this appeal was filed before the Allahabad High Court by the two convicts on 05-05-1993, where it was admitted on 06-05-1993. The appeal is received to this Court by transfer under Section 35 of the U.P. Re-organization Act, 2000 (Central Act No. 29 of 2000), for its disposal. 5. Before further discussion, it is pertinent to mention here, the ante mortem injuries found on the dead body of Sushila Devi (deceased) recorded by the team of Dr. R.K. Pant (P.W.?7 and Dr. S.S. Rawat on 25-01-1989, who prepared the autopsy report (Ext. A-4). The ante mortem injuries mentioned in the autopsy report read as under: i) "Circular burn mark 0.5 cm in diameter on forehead at midline just below hairline, margins clearly defined, skin deep. ii) Bum mark 0.5 cm in diameter right side of forehead, margins clearly defined, skin deep, 1 cm lateral to injury No.1. iii) Ligature mark around the neck directed obliquely upwards, following the line of mandible interrupted at the back. Ligature mark is 2 cms broad, superficial. iv) On abrasion 2 x 0.5 cm on right leg just below knee which is vertically lying. v) One abrasion 0.5 x 0.5 cms on right leg 2 cms below injury No.4. vi) Abrasion 1 cm x 0.5 cm on left knee. vii) One abrasion 0.5 cm x 0.5 cm, 1 cm below injury No.6 on left leg. viii) Lacerated wound 1.5 cm x 0.5 cm x 0.5 cm on left vulva vertical in direction, margin irregular, clotted blood present in the wound and has also dripped down to both legs. Vegina clean. ix) Tongue compressed between cleansed teeth. x) Saliva (dried) present on right angle of mouth." The cause of death, according to the Medical Officers was asphyxia due to hanging. 6. The above noted ante mortem injuries (particularly, injury No.3) read with the opinion of the team of Medical Officers clearly proves that Sushila Devi, wife of accused / appellant Ranvir Singh has died by asphyxia due to hanging. 6. The above noted ante mortem injuries (particularly, injury No.3) read with the opinion of the team of Medical Officers clearly proves that Sushila Devi, wife of accused / appellant Ranvir Singh has died by asphyxia due to hanging. From the statement recorded under Section 313 of Cr.P.C. of accused / appellants read with statement of P.W.4 Balbir Singh, it is clearly established on record that Sushila Devi was wife of accused / appellant Ranvir Singh, who got married to him about 21/2 years before the day of incident (date of death). Now, this Court has to see whether, the prosecution has been successful in proving that the accused / appellants have committed murder of Sushila Devi, or not? 7. As far as conviction of accused / appellant Ranvir Singh on the charge of offence punishable under Section 498-Aof IPC. is concerned, prosecution is required to prove cruelty committed by the accused against the deceased for non-fulfillment of demand of dowry. The accused / appellant Ranvir Singh has specifically taken a plea that in the area of Jaunsar Bhabar, there is no custom of dowry, rather, it is the boy said who has to make payment for bringing bride to their home. In the first information report (Ext. A -2) lodged by Balbir Singh (P.W. 4), brother of the deceased, it is nowhere stated that any demand of dowry was made by the accused Ranvir Singh or other members of his family. What has been mentioned in the first information report is that the cruelty is committed against the deceased by her husband (along with other members of his family) and he has committed murder of Sushila Devi. It is for the first time in his statement on oath, P.W. 4 Balbir Singh makes a statement that his sister told that her husband asked for money. The said statement appears to be an afterthought and improvement in the prosecution story. As such, it cannot be said that the charge of offence punishable under Section 498-A of I.P.C. is proved on the record beyond reasonable doubt. Therefore, we have no hesitation in holding that the trial court has erred in appreciating the evidence on record and holding accused / appellant Ranbir Singh guilty of charge of offence punishable under Section 498-A of I.P.C. 8. Therefore, we have no hesitation in holding that the trial court has erred in appreciating the evidence on record and holding accused / appellant Ranbir Singh guilty of charge of offence punishable under Section 498-A of I.P.C. 8. The conviction recorded by the trial court of both the accused / appellants Ranvir Singh and Jaibir Singh in respect of commission of murder of Sushila Devi, is mainly based on the alleged statements made by accused / appellants under Section 164 of Cr.P.C. before the Sub Divisional Magistrate, Tehri. When we scrutinized the evidence on record on this point, we found that the alleged statements recorded under Section 164 of Cr.P.C. by Iftikharuddin (PW.9) are not a voluntary statement made by accused / appellants. The alleged statement of accused / appellant Jasbir Singh is Ext. A-5 and that of accused appellant Ranvir Singh is Ext. A -6, on the record, which is said to have been recorded by the Sub Divisional Magistrate. P.W.3 Ami Chand, Village Pradhan (who is not even declared hostile by the prosecution) in cross-examination told the court that the Sub Divisional Magistrate came to the village and was staying in the Dak Bungalow (Nainbagh). It is further stated that when the Sub Divisional Magistrate, Iftikharuddin came to the village he was armed with gun. Not only this, narrating, what he saw in the Dak Bungalow, P.W.3 Ami Chand, Village Pradhan told the court, as under: The aforesaid statement of Village Pradhan shows the torture given to the accused / appellant Jaibir and his mother. In the statement recorded under Section 313 of Cr.P.C. both the accused have stated that they were badly tortured by the Sub Divisional Magistrate. As such, their statements recorded by the Sub Divisional Magistrate under Section 164 of Cr.P.C. cannot be said to be a voluntary statement on the basis of which they can be convicted. Not only this, normally for getting recorded statement by an accused under Section 164 of Cr.P.C., the Investigating Officer makes a request to the Magistrate and on that the Magistrate calls the accused. Strangely, P.W.10 Padam Singh, the Investigation Officer, in his examination-in-chief states that he did not mention anything in the case diary relating to recording of statement of accused under Section 164 of Cr.P.C., as he was not aware of the same. Strangely, P.W.10 Padam Singh, the Investigation Officer, in his examination-in-chief states that he did not mention anything in the case diary relating to recording of statement of accused under Section 164 of Cr.P.C., as he was not aware of the same. In these circumstances, we are of the view that the conviction based on their alleged statements recorded under Section 164 of Cr. P. C., recorded by the trial court of accused / appellants Ranvir Singh and Jaibir Singh under Section 302 of I.P.C., is erroneous in law and cannot be sustained. 10. Mr. H .C. Pujari, learned Additional Government Advocate for the State drew attention of this Court to Section 176 of Cr.P.C. read with Section 174 thereof, and submitted that the Magistrate was competent to enquire into the cause of the death of a woman who had died within a period of seven years of her marriage. The submission of learned Additional Government Advocate is of no help to the prosecution. In this case it is not shown to the court where is the enquiry report submitted by such Magistrate. Apart from this, Statement of P.W.9 Iftikharuddin, the then Sub Divisional Magistrate, shows that since he had a power of Special Judicial Magistrate, he recorded the statement of the accused under Section 164 of Cr.P.C. He does not say that he was making any enquiry under Section 176 of Cr.P.C. 11. However, the act of accused Ranvir Singh on the basis of circumstantial evidence on record, clearly makes out a case of offence punishable under Section 306 of I.P.C. We have already mentioned above, that admittedly the deceased was wife of accused Ranvir Singh. As to the cruelty committed by accused Ranvir Singh against his wife is not only proved by P.W. 4 Balbir Singh, but also corroborated from the ante mortem injuries (other than ligature mark around the neck). P.W. 5 Kunwar Singh, who is witness of the inquest report has clearly stated that when the dead body of the deceased was brought down from the tree there were burn injuries on her head and the blood was dripping through the legs. This fact has also been corroborated by P.W.10 Patwari Padam Singh, the Investigating Officer, who prepared the inquest report. This fact has also been corroborated by P.W.10 Patwari Padam Singh, the Investigating Officer, who prepared the inquest report. No doubt, from the injury No.3 mentioned in the ante mortem injuries read with the above circumstance, what appears to have been proved beyond reasonable doubt is that the deceased after being tortured by her husband Ranvir Singh committed suicide. That is why the team of Medical Officers also opined that the deceased has died of asphyxia as a result of hanging. The prosecution case that the two accused I appellants after torturing the deceased in an unconscious took her to jungle and hanged her, doesn't appear to be natural story, as it is not clear how the deceased was taken to a long distance of 21/2 Km. in the jungle by them. There is no linking evidence on record in this regard. As far as the story of suicide is concerned, P.W.7 Dr. R.K. Pant also does not rule out that the deceased might have committed suicide. ' 12. For the reasons as discussed above, we find accused I appellant Ranvir Singh guilty of offence punishable under Section 306 of I.P.C. for abetting the commission of suicide by his wife. He is liable to be convicted accordingly. However, he is entitled to be acquitted from the charge of offence punishable under Section 302 read with Section 34 of I.P.C. and that of 498-A of I.P.C. Accused I appellant Jaibir Singh is also entitled to be acquitted from the charge of offence punishable under Section 302 read with Section 34 of I.P.C., for the reasons we have already discussed above. Therefore, the appeal of Jaibir Singh is allowed. His conviction and sentence recorded by the trial court is set aside. He is acquitted of the charge of 'offence punishable under Section 302 read with Section 34 of I.P.C. He (appellant No. 2 Jaibir $ingh) is on bail. He need not to surrender. His bail bonds are cancelled and sureties stand discharged. The appeal of accused I appellant No.1 Ranvir Singh is party allowed. The conviction and sentence recorded by the trial court under Section 302 read with Section 34 of I.P.C. and one punishable under Section 498-A of I.P.C. are set aside. Instead, he (Ranvir Singh) is convicted under Section 306 of I.P.C. and sentence to rigorous imprisonment for a period of seven years. The conviction and sentence recorded by the trial court under Section 302 read with Section 34 of I.P.C. and one punishable under Section 498-A of I.P.C. are set aside. Instead, he (Ranvir Singh) is convicted under Section 306 of I.P.C. and sentence to rigorous imprisonment for a period of seven years. The Registry is directed to send the lower court record back to the trial court to make the accused / appellant No.1 Ranvir Singh serve out the sentence awarded by this Court, as above.