Research › Search › Judgment

Himachal Pradesh High Court · body

2012 DIGILAW 1033 (HP)

State of Himachal Pradesh v. Anil Kumar

2012-12-24

DEEPAK GUPTA, KULDIP SINGH

body2012
JUDGMENT Per Deepak Gupta, J 1. This appeal by the State is directed against the judgment dated 19.6.2004 in Sessions Trial No.10 of 2004, passed by the learned Sessions Judge, Hamirpur, whereby he acquitted the accused of having committed an offence punishable under Section 302 IPC. 2. The undisputed facts of the case are that accused Anil Kumar was married to Reena (deceased) daughter of PW-1 Roop Lal on 12.6.1997. Out of this wedlock a son and a daughter were born. Reena was a graduate and had appeared in the B.Ed. examination. She had not cleared the exam and had got compartment. The case of the prosecution is that whereas Reena wanted to study further and reappear in the B.Ed. examination, but her husband (accused) opposed this prayer of his wife on the ground that he would prefer to spend the money which would be utilized in study for the purchase of a vehicle. It is also the case of the prosecution that the husband also stated that if Reena insisted on studying further then he would send her back to her parental house. The prosecution story further is that the accused used to beat Reena and thereafter left her at her parental house and in fact he actually beat her and left her at her parental home sometime towards the end of September 2003. However, after one month he took her back and started pressurizing her to agree for a divorce. It is further the case of the prosecution that on 8.11.2003 Krishana Devi, mother of the accused, informed PW-1, father of the deceased, that Reena would be sent back to the parental house. However, Reena did not come home. The prosecution case further is that on 12.11.2003 PW-2 Sukh Dev intimated PW-1 about the death of Reena in her matrimonial house. The accused had also sent information to the Police Post Awahdevi at 7.00 a.m. on 12.11.2003 about the death of his wife. Reena Devi died due to hanging. On this basis, daily diary report No.17 Ext. PW-10/A was entered. PW-1, father of Reena Devi, went to the house of the accused. In the meantime, SHO PW-18 Gian Chand also reached the spot from the Police Station. The dead body was photographed and the statement Ext.PW-1/A of PW-1 Roop Lal was recorded under Section 154 Cr. On this basis, daily diary report No.17 Ext. PW-10/A was entered. PW-1, father of Reena Devi, went to the house of the accused. In the meantime, SHO PW-18 Gian Chand also reached the spot from the Police Station. The dead body was photographed and the statement Ext.PW-1/A of PW-1 Roop Lal was recorded under Section 154 Cr. P.C. and thereafter a case under Section 498-A and 306 IPC was registered at Police Station, Bhoranj against the accused. The body was searched and inquest was carried out at the spot. Thereafter, the dead body of Reena was sent to the Zonal Hospital, Hamirpur where postmortem was carried out on the dead body by PW-8 Dr. R.S. Dhatwalia, who vide his report Ext. PW-8/A opined that the deceased had died due to strangulation. Other investigation was carried out and finally the accused was charged with having committed the murder of his wife Reena and the case was converted from one under 498-A read with Section 306 IPC to one under 302 IPC. 3. At the outset, we may state that the statement of PW-8 Dr. R.S. Dhatwalia clearly indicates that he did not carry out the postmortem in a proper manner. He admits that he has not recorded a number of facts which were required to be recorded. In fact the matter was referred to PW-7 Dr. V.K. Mishra, Professor and Head, Department of Forensic Medicines, IGMC, Shimla, who after perusing the postmortem report and the photographs of the deceased opined as follows:- “1. The autopsy findings are not very clear as whether the case is of ligature strangulation or anti-mortem hanging. Hence the opinion of autopsy Surgeon is to be relied upon. 2. In the post-mortem report certain points are to be clarified by the Autopsy Surgeon before arriving to some firm opinion in this case.” 4. Dr. Mishra in cross-examination stated that the injury which is visible in the photographs Ext. PW-3-II to PW-13-12 on the chin of the deceased is not mentioned in the postmortem. He also admitted that in this the ligature mark is much higher than the thyroid cartilage and admitted the suggestion that in case of strangulation the ligature would normally be present over the thyroid cartilage. Though this witness did not give any clear cut opinion, but it is apparent that he was not in agreement with the report of Dr. R.S. Dhatwalia. 5. Though this witness did not give any clear cut opinion, but it is apparent that he was not in agreement with the report of Dr. R.S. Dhatwalia. 5. It would be pertinent to mention that Dr. R.S. Dhatiwala was not a doctor of Forensic Medicine and he has in fact done his post graduation in Psychiatry. Dr. R.S. Dhatwalia in his postmortem report observed as follows:- “External Appearance It was a dead body of a middle aged married female, height 5’-6’’, wheatish complexion, thinly built, eyes partially open, Rigor mortis fully developed. P.M. staining present on the dependant parts of body: lying in supine position on the Autopsy table. There were no signs of struggle on the clothes and on the surface of the body i.e. no abrasions or bruises on the mouth, nose, cheeks, forehead, lower jaw or any other part of body. There was no trickling of saliva from the angle of mount. The tongue was not protruded, it was drawn in, there was no bleeding from the mouth, nose or ears. The wearing apparels and the ornaments on the dead body were – 1. One terricot shirt having red and black flowery print. (2) One woolen slate grey coloured salwar, one yellow metallic koka in lest nostril. There were no pressure marks of thumb and finger tips on the neck. LIGATURE MARK. One slightly depressed ligature mark continuous, horizontal in the upper part of the neck above the thyroid cartilage, encircling the neck horizontally. No foreign material present in or adjacent to the ligature mark. The base of the furrow was soft and reddish. Small multiple abrasions and ecchymosis around about the edges of ligature mark present. Neck was not stretched and elongated. Face was congested. No evidence of any sexual assault. There was no knot mark on the neck. The subcutaneous tissues under the mark ecchymosed. There were lacerations on the underline muscles of neck. There was fracture of intima of both caroted arteridge. There was fracture of lyrnx trachea and Hyoid bone. There was no fracture of cervical vertebrae. There was marked congestion of both lungs. Dark blood stained fluid exuded out on section. Bronchi contained frothy blood stained mucus. Both sides of Heart were filled with blood. All the vital and important organs of the body were congested. There was fracture of lyrnx trachea and Hyoid bone. There was no fracture of cervical vertebrae. There was marked congestion of both lungs. Dark blood stained fluid exuded out on section. Bronchi contained frothy blood stained mucus. Both sides of Heart were filled with blood. All the vital and important organs of the body were congested. Probable time that elapsed between injury and death were immediate and that between death and post-mortem examination was 24 hours. OPINION In the opinion of the doctor, the deceased died due to Asphyxia due to strangulation. After the post mortem, the doctor handed over belongings of the deceased, blood sample and viscera to the police for Chemical Examiner’s report Ext. PW-8/C the report of the Chemical Examiner revealed that neither contents of Alcohol or poison were detected either in viscera or the blood sample.” 6. In this case a suicide note was also found. As per this suicide note Reena Devi stated that she was in her full senses and that she was responsible for her own death. She was tired of her life and was, therefore, committing suicide. In this suicide note, it was also stated that no legal action should be taken against anybody. According to the prosecution this suicide note was in fact not in the handwriting of Rena Devi but in the handwriting of the accused or the parents of the accused. The specimen handwritings of the accused and his parents were taken but as per the evidence of handwriting expert PW-9 Dr. Minakshi Mahajan their specimen handwritings did not tally with the handwriting on the suicide note. There were many admitted writings of Reena Devi on record but the handwriting expert gave no opinion with the regard to the admitted writings of Reena Devi though later in Court she stated that the material on record was insufficient for her to give an opinion whether the handwriting on the suicide note was of deceased Reena Devi or not. As such it cannot be said that the suicide note was not in her hand. The suicide note definitely is not in the handwriting of the accused or his parents and even it is not shown to be in the handwriting of the deceased, it casts a grave doubt on the prosecution story and the possibility of the deceased having committed suicide cannot be ruled out. 7. The suicide note definitely is not in the handwriting of the accused or his parents and even it is not shown to be in the handwriting of the deceased, it casts a grave doubt on the prosecution story and the possibility of the deceased having committed suicide cannot be ruled out. 7. The prosecution was required to prove its case with regard to ill-treatment. All that father PW-1 had to say was that on one occasion accused Anil Kumar had given beatings to deceased Reena Devi and left her at her parental home but admitted that thereafter Reena Devi went with her husband and there is no independent witness on record to prove this version of PW-1. PW-6 Veena Devi only talks about the incident which took place around Diwali in 2003 when Reena allegedly told her sister that she was being beaten by the accused. The other reason given by PW-1 and PW-6 is that Reena Devi wanted to study further which was being opposed by the accused. 8. From the evidence on record, it is apparent that when Reena was married she was only a Graduate. It was her in-law’s who sent her to study for B.Ed. to Jammu where she failed to qualify the examination. PW-1 admits that all the expenses of going to Jammu and appearing in the B.Ed. were borne by the father of the accused. The learned trial Court held, and in our opinion rightly so, that the family which had sent Reena Devi for studies to Jammu would not have hesitated to send her again. Even otherwise, if is for the family to see what are their finances and if it was felt that they could not afford to send Reena again to Jammu for studies this would not amount to cruelty. 9. Keeping in view the medical reports, especially the fact that there are chances that the death was not due to strangulation but was due to hanging on account of suicide and the fact that there is a suicide note which is not in the hands of the accused or his parents, the possibility of the deceased having committed the suicide cannot be ruled out. Therefore, the accused has rightly been given the benefit of doubt by the learned trial Court and we see no reason to interfere with the findings of learned trial Court in appeal, which is accordingly dismissed. Therefore, the accused has rightly been given the benefit of doubt by the learned trial Court and we see no reason to interfere with the findings of learned trial Court in appeal, which is accordingly dismissed. Bail bonds are discharged.