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2013 DIGILAW 137 (UTT)

SANDEEP @ SONU v. STATE OF UTTARAKHAND

2013-03-14

Alok Singh, Barin Ghosh

body2013
JUDGMENT Per: Hon’ble Alok Singh, J. 1. Accused appellant, by way of present appeal, is assailing the judgment and order dated 12.06.2008 passed by Sessions Judge, Tehri Garhwal in Sessions Trial No. 13 of 2006 thereby convicting the accused appellant for an offence punishable under Section 302 IPC and sentencing him to undergo life imprisonment and to pay fine of Rs. 10,000/- failing which to undergo additional rigorous imprisonment of six months. 2. The brief facts of the case, inter alia, are that Mam Chand PW3 lodged an FIR on 23.02.2006 at about 12.10 p.m. with the police station Narendra Nagar with the allegations that her daughter Reena was married to appellant on 18.11.2005 as per the Hindu Rites and Rituals. Informant had given sufficient dowry, at the time of marriage, however, appellant used to ill-treat her daughter on account of insufficient dowry. Appellant demanded Rs. 2,00,000/- from the informant; on 22.02.2006, appellant along with Reena came to their house situated in New Tehri, on a motorcycle bearing no. UA 07 R 1652 and demanded Rs. 2,00,000/- as dowry, thereafter, on the same day at about 09.00 p.m. went back on his motor cycle to Khadi; on 23.02.2006, landlord of the appellant informed him telephonically that Reena was not responding and she was lying on bed; having received such information, informant along with his wife and relatives reached Khadi in the rented house of appellant and found Reena was lying dead on the bed. 3. Having received the report, police registered the same as case crime no. 120 of 2006 under Section 304-B IPC read with Section 498-A IPC against the appellant. Prior to this report, at about 10.00 a.m. on 23.02.2006, Shiv Raj Singh Miyan (PW7) also informed the police that appellant along with his wife Reena was residing in a rented room in his house and appellant was missing from his house, however, Reena was lying unconscious on the bed. Having received this information, on phone, police endorsed the same in GD No. 19 at 10.05 a.m. and SHO A.K. Tyagi and SI Inder Singh Bisht reached on the spot at about 11.30 a.m. where they found Reena dead. They prepared the inquest report. There were injury marks on her neck and blood was oozing out from her nose. Some hairs and one confessional letter from the palm of Reena were recovered. They prepared the inquest report. There were injury marks on her neck and blood was oozing out from her nose. Some hairs and one confessional letter from the palm of Reena were recovered. Hairs, confessional letter, one metre telephone wire, broken bangles and pillow cover were seized from the spot and were kept in sealed covers. Confessional letter, so recovered, along with the diary and letter made available by the informant were sent for Forensic Science Laboratory for comparison of handwriting. Hairs, so recovered from the palm of deceased Reena and specimen hairs of the accused were also sent for Forensic examination. Postmortem was conducted by Dr. Ajay Gairola (PW5) on the dead body of Reena. As per the postmortem report, death was caused due to strangulation. 4. Having investigated the matter a charge-sheet was submitted. 5. After committal of the case, trial court framed charges against the accused for the offences punishable under Section 498-A, 302 IPC and in alternate, charge under Section 304-B IPC was also framed against the accused appellant. 6. Before the trial court, from the side of prosecution, PW1 Rajbala, PW2 Ms. Shalini, PW3 Mam Chand, mother, sister and father of deceased Reena respectively, PW4 Surendra Kumar, PW5 Dr. Ajay Gairola, PW6 Amir Ahmad, PW7 Shiv Raj Singh Miyan, PW8 Shashi Kala, PW9 Head Constable K.P. Joshi, PW10 SHO Ashok Kumar Tyagi, PW11 SI Inder Singh Bisht, PW12 Dr. Manoj Kumar, PW13 Brijendra Kumar were examined while in defence, appellant was examined as DW1 and Muni Raj Singh was examined as DW2. 7. Having considered the entire material available on record, learned Sessions Judge has categorically recorded the finding of fact that there was no demand of dowry and Reena was never harassed on the question of dowry, therefore, no offence punishable under Section 498-A and 304B IPC is made out against the appellant, however, he found appellant guilty for the offence punishable under Section 302 IPC and passed order of conviction and sentence, impugned under appeal, as mentioned hereinabove. 8. We have heard Mr. Sandeep Tiwari, learned counsel for the appellant and Mr. A.S. Gill, Sr. Government Advocate assisted by Mr. Vipul Painuly, AGA for the State and have carefully perused the record. 9. 8. We have heard Mr. Sandeep Tiwari, learned counsel for the appellant and Mr. A.S. Gill, Sr. Government Advocate assisted by Mr. Vipul Painuly, AGA for the State and have carefully perused the record. 9. Learned counsel for the parties have agreed to the fact that no offence punishable under Section 498-A and 304-B IPC is made out against the appellant, as there was no demand of dowry, either at the time of marriage or thereafter or soon before the death of Reena, as there was love marriage between appellant and Reena. 10. Reena was found dead in the rented room, owned by Shiv Raj Singh Miyan (PW7). PW 7 informed the police about the death of Reena in her room. Some hairs and one letter, allegedly written by appellant, were recovered from the hands of Reena. After arrest of accused, his specimen hairs and hairs, so recovered from the palm of deceased Reena, were sent to Forensic Science Laboratory for comparison, however, no report thereof is made available on record to suggest that hairs, so recovered from the palm of Reena, were of appellant. 11. Undisputedly, specimen handwriting and signatures of the appellant were never taken to compare the same with the handwriting of alleged confessional letter, so recovered from the palm of the deceased. However, handwriting available in the alleged confessional letter was compared with the handwriting appeared in the diary and letter, which were made available by the informant. 12. In the statement under Section 313 Cr.P.C. recorded by learned Judge in answer to question no. 22, appellant has specifically stated that entries made in the diary and the letter were fabricated and prepared by PW1 & PW3 and these are not in the handwriting of accused appellant. PW1 Saroj Bala, mother of the deceased, in her statement, on oath, has stated that she is an illiterate lady. In our firm opinion, that being so, she cannot prove that diary and letter handed over to the police are in the handwriting of the appellant. There is no evidence on record to prove that diary and letter handed over to the police by PW1 and her family members are in the handwriting of accused appellant. 13. In our firm opinion, that being so, she cannot prove that diary and letter handed over to the police are in the handwriting of the appellant. There is no evidence on record to prove that diary and letter handed over to the police by PW1 and her family members are in the handwriting of accused appellant. 13. In our firm opinion, since specimen handwriting and signatures were not obtained from the appellant in order to compare the same with the handwriting depicted in the alleged confessional letter, so no reliance can be placed on the Forensic Science Laboratory report which shows that handwriting in the alleged confessional letter and handwriting in the material so provided, are of appellant. However, in our opinion, the only conclusion drawn from the Laboratory’s report would be that both the handwritings are of one and same person but who is that person is not proved on record. 14. As per the statement of PW7, landlord of the rented room wherein dead body of Reena was found, he has seen Reena last time in the evening of 22.02.2006 when appellant along with Reena was going to his in-laws’ house. He has further stated that thereafter, the moment he took out his car to go to attend some marriage, he had seen them going out. Likewise, Amir Ahmed (PW6), who was also residing in the same house, although in his chief examination has stated that in the intervening night of 22/23 February, 2006 at about 11.00 p.m., appellant had come to his room and knocked his door and demanded some food, however, in the cross examination has stated that at about 5.00 p.m.- 6.00 p.m. in the evening of 22.02.2006 appellant informed him that he was going to New Tehri; he has seen him in the evening going on motorcycle, however, did not see him while returning into the room. 15. Thus, from the statements of PW7 and PW 6, it is clear that in the evening of 22.02.2006 appellant informed PW6 he was going to New Tehri and PW6 & PW7 also noticed him going out. None of them saw him returning into his rented room. 15. Thus, from the statements of PW7 and PW 6, it is clear that in the evening of 22.02.2006 appellant informed PW6 he was going to New Tehri and PW6 & PW7 also noticed him going out. None of them saw him returning into his rented room. Appellant in the statement under Section 313 Cr.P.C. as well as in his statement as DW1 has stated that on 22.02.2006, he went to attend the marriage of his friend Ashok Kumar and remained there and was not available in the intervening night of 22/23 February, 2006 in his rented house, in order to corroborate his statement, he has produced DW2 Muni Raj as well as filed a copy of invitation card of Ashok’s marriage. 16. There is no eyewitness of the incident and the entire case revolves around the circumstantial evidence. In our firm opinion complete chain of circumstances and last seen evidence must be proved beyond reasonable doubt to hold the accused guilty. 17. In view of statements of PW6 and PW7 that appellant was going out in the evening of 22.02.2006 and in view of statement of DW1 and DW2, presence of accused in the intervening night of 22nd /23rd February, 2006 in the rented room wherein Reena was found dead, becomes highly doubtful. 18. Moreover, in absence of Forensic Science Laboratory report regarding hairs and in view of not taking the specimen signatures and handwriting of accused appellant for comparison with the alleged confessional letter, the prosecution story becomes highly doubtful, therefore, accused is entitled for the benefit of doubt. 19. In view of what has been stated above, we are unable to sustain the reasoning and finding recorded by the trial court by way of impugned judgment, therefore, appeal is allowed. Impugned judgment and order dated 12.06.2008 passed by the Sessions Judge, Champawat is hereby set aside. Appellant is acquitted of the charges framed against him. Appellant is on bail. He need not to surrender in the court below. His personal bonds and sureties are discharged. 20. Let a copy of this judgment be sent to the court below for compliance. Lower court record be sent back forthwith.