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2013 DIGILAW 86 (UTT)

SUNIL KUMAR v. STATE OF UTTARAKHAND

2013-03-01

Alok Singh, Barin Ghosh

body2013
JUDGMENT Per: Hon’ble Alok Singh, J. 1. This is a jail appeal filed by the convict appellant assailing the judgment and order dated 07.02.2008 passed by the Sessions Judge, Tehri Garhwal in Sessions Trial No. 19 of 2006 thereby convicting and sentencing the appellant to undergo imprisonment for life and to pay fine of Rs. 5,000/- failing which to further undergo 6 months rigorous imprisonment for the offence punishable under Section 302 IPC and further convicting and sentencing him to serve 3 years rigorous imprisonment and to pay fine of Rs. 1,000/- failing which to serve 2 months’ additional rigorous imprisonment for the offence punishable under Section 201 IPC. 2. Brief facts, inter alia, are that appellant herein married to Smt. Sushma Devi in the month of October, 1999; Smt. Sushma Devi found dead in a gorge in village Danara Patti Bharpur, District Tehri Garhwal on 18.07.2006; one Dinesh Kumar, son of Lalita Prasad informed the police telephonically that Smt. Sushma Devi had left the house in the morning for the jungle to collect the grass for the cattle and had committed suicide by jumping from hill into the gorge and her dead body was lying in the gorge. On the other hand, Chiranji Lal, father of deceased, on the next day i.e. on 19.07.2006, has given a written report to the police station Devprayag, District Tehri Garhwal alleging therein that Sunil Kumar, appellant herein, as well as his mother Prema Devi had murdered Smt. Sushma Devi as he failed to meet out the illegal demand of dowry; on the report of Chiranji Lal, a chik report was registered as case crime no. 574 of 2006 under Section 498A, 304B read with Section ¾ of the Dowry Prohibition Act against appellant and Prema Devi; post mortem was conducted by Dr. S.D. Uniyal on 18.07.2006 and as per post mortem report, cause of death of Smt. Sushma Devi was strangulation; having investigated the matter a charge-sheet was submitted against the appellant as well as his mother Prema Devi for the offence punishable under Sections 498-A, 304B IPC read with Section 3/ 4 of the Dowry Prohibition Act. 3. S.D. Uniyal on 18.07.2006 and as per post mortem report, cause of death of Smt. Sushma Devi was strangulation; having investigated the matter a charge-sheet was submitted against the appellant as well as his mother Prema Devi for the offence punishable under Sections 498-A, 304B IPC read with Section 3/ 4 of the Dowry Prohibition Act. 3. Learned Sessions Judge, having perused the entire evidence, came to the conclusion that there is no demand of dowry and since Smt. Sushma Devi was murdered few months before the expiry of 7 years of her marriage, therefore, no case under Section 498A IPC, 304B IPC or under Section 3/4 of the Dowry Prohibition Act is made out. However, he found appellant guilty for the offences punishable under Section 302 and 201 IPC and convicted & sentenced him, as mentioned hereinabove. Learned Sessions Judge did not find any material or evidence against Prema Devi (mother of appellant), hence, acquitted her. Feeling aggrieved, appellant has approached this Court by way of present appeal. 4. We have heard learned counsel for the parties and have carefully perused the record. 5. Undisputedly, dead body of Smt. Sushma was recovered from a gorge, which was at a distance of about 500 metres away from the appellant’s house. None of the witnesses stated that there was any demand of dowry by the appellant soon before the death of Smt. Sushma Devi. Learned Sessions Judge has recorded finding of fact that there is absolutely no material on record to suggest that there was any demand of dowry by the appellant soon before the death of Smt. Sushma Devi. Dead body was recovered on 18.07.2006 at about 08.50 a.m. and postmortem was conducted on 18.07.2006 at 04.00 p.m. As per the postmortem report as well as statement of PW2 Dr. S.D. Uniyal, death of Smt. Sushma could have been caused between 12–24 hours prior to the postmortem. 6. Learned Sessions Judge has drawn an inference that appellant could have committed the murder of Smt. Sushma Devi in the intervening night of 17th /18th of July 2006 by strangulation when she was in his company and thereafter, he could have thrown here body in the gorge. 7. The Hon’ble Apex Court in the case of Sharad Birdhichand Sarda Vs. Learned Sessions Judge has drawn an inference that appellant could have committed the murder of Smt. Sushma Devi in the intervening night of 17th /18th of July 2006 by strangulation when she was in his company and thereafter, he could have thrown here body in the gorge. 7. The Hon’ble Apex Court in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra reported in AIR 1984 SC 1622 has held as under: “It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground far a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.” 8. As per the dictum of Hon’ble Apex Court, if prosecution is solely based upon the circumstantial evidence, then complete chain of circumstances must be proved beyond reasonable doubt to exclude every hypothesis but the one proposed to be proved. 9. In the present case, in absence of demand of dowry, there seems to be no motive on the part of appellant to commit murder of Smt. Sushma Devi that too after living with her for almost seven years. Moreover, there is no eyewitness of the occurrence. Further, there is no evidence of transporting of the dead body by the appellant from his house to gorge. We find force in the submission of learned Amicus Curiae that Sushma Devi left house in the morning of 17.07.2006 in order to collect and bring the grass for cattle from jungle and did not return and on the next day, her dead body was found lying in the gorge; appellant probably could have not carried dead body on his back on the hilly track for almost 500 metres to throw the same in the gorge from the hilltop. 10. 10. In these circumstances, we are of the firm opinion that inference drawn by the learned Sessions Judge that appellant might have committed the murder in the intervening night of 17th /18th July, 2006 and has thrown the dead body in the gorge by transporting it about 500 metres away from his house that too in a hill area, is highly doubtful. 11. In view of the above, we are of the firm opinion that prosecution has failed to prove that the appellant has committed murder beyond reasonable doubt, therefore, appellant is entitled for benefit of doubt. Consequently, appeal is allowed. Conviction and sentence awarded by the learned Sessions Judge, Tehri Garhwal vide impugned judgment is hereby set aside. Appellant stands acquitted of the charge punishable under Section 302, 201 IPC. He may be released forthwith unless required in any other case. Let a copy of this judgment be sent to the lower court for compliance. Lower court record be sent back.