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2014 DIGILAW 331 (UTT)

ANANDI DEVI @ ANULI DEVI v. STATE OF UTTARAKHAND

2014-08-29

ALOK SINGH, SERVESH KUMAR GUPTA

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JUDGMENT Hon’ble Alok Singh, J. (Oral) Present appeal is preferred assailing the judgment and order passed by Sessions Judge, Champawat dated 20.12.2011 in S.T. No. 23 of 2008, whereby appellant was held guilty for the offence punishable under Section 302 I.P.C. as well as under Section 201 I.P.C., and was awarded life imprisonment and to pay fine of Rs. 10,000/- and in default of making payment of fine to undergo R.I. for a period of six months under Section 302 IPC, to undergo R.I. for a period of 7 years and to pay fine of Rs. 5,000/- and in default of making payment of fine to undergo two months additional imprisonment under Section 201 IPC. 2. Brief facts of the present case, inter alia, are that P.W. 1 Sri Ganga Dutt Pandey on 21.8.2008 at about 5:40 P.M. reported the matter to the P.S. Lohaghat, District Champawat saying that his daughter Smt. Prema was got married with Jagdish Chandra Tiwari on 22.5.2001; Prema was killed on 28.8.2008 by her husband Jagdish Chandra Tiwari S/o Rewadhar, his father Rewadhar and mother Anuli Devi @ Anandi Devi (appellant herein), wherein Keshav Dutt S/o Bhavdev, maternal uncle of Jagdish Chandra Tiwari was also involved. It was further stated that Prema was being ill-treated for bringing less dowry. 3. Having investigated the matter, police submitted chargesheet against the appellant for the offence punishable under Sections 498-A and 304 IPC, while chargesheet against Jagdish Chandra Tiwari, husband of the deceased, was submitted for the offence punishable under Section 498-A I.P.C. 4. Learned Trial Judge was pleased to frame charges against the appellant on 18.02.2009 for the offence punishable under Sections 498-A and 304 IPC while charges were framed against Jagdish Chandra Tiwari, husband of the deceased, for offence punishable under Section 498 A IPC. Additional charges were framed on 5.3.2010 against both the accused i.e. appellant and Jagdish Chandra Tiwari for the offence punishable under Sections 302 and 201 IPC. 5. To prove the prosecution story, Ganga Dutt, P.W.1 (Informer), Tara Dutt, P.W.2, Umesh Chandra Pandey, P.W.3, Keshav Dutt, P.W.4, Mathura Dutt, P.W.5, Dr. K.R. Saun, P.W.6, Constable Bhuwan Singh Rana, P.W. 7, S.I. Pawan Jetha, P.W. 8, Naresh Chandra, Sub-Inspector, P.W. 9 and Harish Chandra Joshi, Sub-Inspector, P.W. 10 were examined. Thereafter, statements of the appellant as well as co-accused Jagdish Chandra Tiwari were recorded under Section 313 CrPC. 6. K.R. Saun, P.W.6, Constable Bhuwan Singh Rana, P.W. 7, S.I. Pawan Jetha, P.W. 8, Naresh Chandra, Sub-Inspector, P.W. 9 and Harish Chandra Joshi, Sub-Inspector, P.W. 10 were examined. Thereafter, statements of the appellant as well as co-accused Jagdish Chandra Tiwari were recorded under Section 313 CrPC. 6. Learned Trial Judge, vide impugned judgment, was pleased to acquit the husband of the deceased i.e. Jagdish Chandra Tiwari, however, appellant was held guilty for the offence punishable under Sections 302 and 201 IPC, and was further pleased to award sentence, as discussed hereinbefore. 7. We have heard Ms. Geeta Parihar, learned Amicus Curiae appearing for the appellant and Mr. A.S. Gill, learned Deputy Advocate General appearing for the State, and have carefully perused the record. 8. As per the postmortem report and statement of Dr. K.R. Saun, P.W.6, Smt. Prema died on 20.8.2008 due to internal liver injuries, broken 11th and 12th ribs as well as internal bleeding in the intestines. Black coloured lacerated marks encircled on the neck were also noticed during the postmortem. 9. Undisputedly, when Smt. Prema was found dead in her matrimonial home on 20.8.2008 i.e. after 7 years of her marriage, her husband was away from the house as he was working at Haldwani, which is more than two hundred kilometers from the village. Undisputedly, father-in-law of Prema was also not present in the house. Appellant, in her statement under Section 313 Cr.P.C., specifically stated that she was also not present in the house when Prema found dead as she had gone to jungle to collect grass (fodder) and when she came back she found Prema dead. 10. It is very important to mention herein that none has witnessed the incident. Prosecution has not produced any witness to the effect that present appellant was found in the company of the deceased right from the morning till she (deceased) was found dead. There is absolutely nothing on record to suggest that statement given by the appellant under Section 313 CrPC that she was not at the home as she had gone to jungle to collect the fodder can be said to be incorrect or false. 11. Learned Trial Court did not find offence punishable under Section 498-A to have been proved. There is absolutely nothing on record to suggest that statement given by the appellant under Section 313 CrPC that she was not at the home as she had gone to jungle to collect the fodder can be said to be incorrect or false. 11. Learned Trial Court did not find offence punishable under Section 498-A to have been proved. In our considered opinion, if charge is framed for the offence punishable under Section 302 IPC, it is the duty of the prosecution to prove the guilt of the accused either by way of producing direct evidence; or by producing last seen evidence or by producing strong circumstantial evidence ruling out any doubt; or extra-judicial confession made by the accused. 12. In the present case, neither direct evidence is produced nor case is based upon the circumstantial evidence, nor this is a case of extra-judicial confession. 13. We have carefully perused the statements of P.W.1, P.W.2, P.W. 3 and P.W.5. None of the witness is an eye witness. All the witnesses made statements to the effect that Smt. Prema (deceased) was being ill-treated by her mother-in-law. Learned Trial Court, in the light of such statements, came to the conclusion that appellant could have murdered Smt. Prema by pushing her on the ground and by strangulation. In our considered opinion, no conviction is permissible only on the basis of presumption or inferences. 14. We find force in the argument of Ms. Geeta Parihar, learned Amicus Curiae, that Smt. Prema might have tried to commit suicide by hanging herself with the help of ‘Chunni’ which was found hanging with the hook of ceiling of the room and meanwhile she would have fallen down on the wooden plank and due to fall, her 11th and 12 ribs might have broken causing internal liver injuries as well as internal intestinal bleeding. 15. In view of the discussions made hereinbefore, we are really unable to convince ourselves to uphold the impugned judgment and order. In our considered opinion, prosecution has miserably failed to prove the prosecution story. Thus, the judgment impugned does not sustain in the eyes of law. 16. In the result, appeal is allowed. Impugned judgment and order dated 20.12.2011 passed by learned Sessions Judge, Champawat in S.T. No. 23 of 2008 is hereby set aside. Appellant is in jail. She may be set at liberty forthwith, if not wanted in any other case. Thus, the judgment impugned does not sustain in the eyes of law. 16. In the result, appeal is allowed. Impugned judgment and order dated 20.12.2011 passed by learned Sessions Judge, Champawat in S.T. No. 23 of 2008 is hereby set aside. Appellant is in jail. She may be set at liberty forthwith, if not wanted in any other case. 17. Let LCR be sent back to the learned Trial Court for information and compliance.