Jammu & Kashmir High Court
Kamlesh Kumar vs State Of J&K on 23 March, 2022
Bench: Sanjeev Kumar, Mohan Lal
=h475
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on : 22.02.202
Pronounced on: 23 .03.2022.
CRA No.18/2017
IA No.1/2017
c/w
CONF No.5/2017
Kamlesh Kumar ...Appellant(s)
Through:- Mr. Anmol Sharma, Advocate
V/s
State of J&K ...Respondent(s)
Through:- Mr. Sumit Bhatia, GA
Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
HON'BLE MR. JUSTICE MOHAN LAL, JUDGE
JUDGMENT
Per: Sanjeev Kumar-J
1. This criminal appeal is directed against the judgment and sentence order dated 16.05.2017 and 19.05.2017 respectively handed down by the learned Principal Sessions Judge, Udhampur ["trial Court"] in file No.78/Sessions titled State v. Kamlesh Kumar by which the trial Court has convicted the appellant for commission of offences punishable under Sections 302 and 498-A RPC and has sentenced him to rigorous imprisonment for life with fine of Rs.5,000/- for offence under Section 302 RPC and rigorous imprisonment for two years and fine of Rs.1,000/- for offence under Section 498-A RPC. The substantive sentences awarded have been provided to run concurrently.
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2. With a view to appreciate the grounds of challenge urged by the learned counsel appearing for the appellant to assail the judgment of conviction and order of sentence impugned in this appeal, it would be necessary to first briefly notice the case of prosecution, as was put up before the trial Court.
3. On 19th May, 2014, the Police Station, Pancheri received an information through reliable sources that a dead body of a lady, namely, Sushma Devi wife of the appellant resident of village Katti Teshil and District Udhampur, aged about 19/20 years has been hanging with a root of kail tree with a noose of dupatta around her neck at Khalia Dabbar jungle, Katti. The reason of death of the lady was not known. Since the death of Sushma Devi was found to have taken place under suspicious circumstances, as such, the S.H.O., Police Station, Pancheri, Mr. Harminder Singh, initiated proceedings under Section 174 Cr.P.C. The S.H.O. along with other police personnel rushed to the site of occurrence. On reaching the spot of occurrence, where the dead body of the deceased lady was lying, the site map of the place of occurrence was prepared. From the site, where dead body of the deceased was lying, the police found one phone along with charger and sim, one pair of plastic chapel and one lady shawl. All these items were seized and the photographs dead body of the deceased Sushma Devi as also the photographs of recovery of dead body were taken by the S.H.O. with his own mobile phone. The possession of the dead body was taken over by the police and seizure memo of the same was prepared accordingly. The dupatta tied round the neck of the dead body was also seized. The dead body was thereafter with the assistance of 3 CRA No.18/2017 villagers and locals was first taken to the road side and then to the Pancheri hospital. The memo of surat-e-haal of the dead body of the deceased was filled up on 28th May, 2014.The clothes of the deceased were handed over to the police by the medical officer and they were seized and accordingly seizure memo was prepared. The dead body, after it was received from the hospital after post-mortem by the medical officer, was handed over to the legal heirs of the deceased for last rites. The statements of the persons acquainted with the facts and circumstances of the case were recorded under Section 175 Cr.P.C.. The viscera of the deceased along with report of the medical officer were deposited at F.S.L., Jammu for chemical analysis against proper receipt.
4. With a view to take the inquest proceedings further, the Investigating Officer along with other police personnel of Police Station, Pancheri camped on the road side at Latyar District Udhampur. The statement of PW-2, Rano Devi, the mother of the deceased was recorded under Section 175 Cr.P.C., in which she stated that the deceased Sushma Devi was her real daughter, whose marriage was solemnized with the appellant a year back. The husband of the deceased, the appellant herein, was beating Sushma Devi for bringing less dowry items. He was continuously demanding more dowry items and the deceased used to narrate this to her family members. PW-2, while continuing with her statement, stated that the appellant was advised by her and told that they do not have sufficient sources at this time and that whenever they would have sufficient sources of income, they would provide him more dowry items. The appellant was 4 CRA No.18/2017 requested not to harass the deceased but he did not mend his ways and was regularly beating the deceased. On 18.05.2014, the appellant gave beating to the deceased due to which she was left with no alternative but to end her life by hanging herself at Katti Khalia Dabbar forest. With the aforesaid statement of the mother of the decease, the Investigating Officer found that offence punishable under Section 498-A RPC was, prima facie, made out against the appellant. Accordingly, a docket was sent to the Police Station for registration of the FIR, pursuant to which, FIR No.17/2014 under Section 498-A/306 RPC was registered at Police Station, Pancheri. Statements of prosecution witnesses under Section 161 Cr.P.C. were recorded and the appellant was formally arrested on 27 th May, 2014. During interrogation, the accused, as per the prosecution, made a disclosure statement on 31.05.2014 admitting that he used to raise demands of dowry from the deceased and was also subjecting her to beating. He also admitted that on 18.05.2014, during the day time, he had subjected the deceased to beating and at around 2.30 p.m. the deceased ran away from the house. He claimed that he also followed her towards the jungle and with an intention to kill her he overpowered her in the jungle and strangulated her to death with a piece of rope. After she died, he lifted the body and tied it to a tree with a noose of dupatta around her neck in order to give it a colour of suicide. As per the prosecution story, the rope allegedly used by the appellant for commission of crime was recovered at his instance and seized. It also came out in the investigation that immediately after committing the crime, accused had gone to the parental house of his wife so that no one could suspect his involvement. He even stayed in his in-laws 5 CRA No.18/2017 house during the night. The appellant identified the place where he had strangulated the deceased to death. The police prepared the site plan of the place of occurrence and also took photographs of the place that bore marks of resistance. Statements of some of the witnesses were recorded under Section 164-A Cr.P.C. Upon completion of the investigation, the Investigating Officer concluded that it was a case of murder and the appellant had, prima facie, committed the offence under Section 302 RPC. Accordingly, the commission of suicide by the deceased, as was projected in the inquest proceedings, was ruled out. The postmortem report also ruled out the theory of suicide and proved that the death of the deceased was by strangulation, which was possible by a piece of rope recovered pursuant to the disclosure statement of the appellant. Charge under Section 306 RPC was deleted and offence under Section 302 RPC was substituted.
5. Upon completion of the investigation, the police filed Final Report before the committal Court on 19.07.2014 from where it was committed to the trial Court for trial. Vide order dated 08.08.2014, the charges were framed against the appellant for commission of offence punishable under Section 302/498-A RPC. The charge was read over to the appellant, who pleaded not guilty to the charge and claimed to be tried.
6. In order to sustain the charge under Section 302 RPC against the appellant, the prosecution commenced its evidence on 23 rd September, 2014. The prosecution examined in as many as 22 prosecution witnesses. Incriminating circumstances that emerged from the prosecution evidence were put to the appellant for his explanation in terms of Section 342 6 CRA No.18/2017 Cr.P.C. The statement of the appellant was recorded. The appellant denied his complicity in the crime and chose to lead defense evidence.
7. In his defense the appellant examined DW-Subash and DW-Kirpal Singh. After closure of the defense evidence, the case was set down for hearing. The trial Court after hearing learned counsel for both the sides and having gone through the entire material on record including the evidence brought on record by both sides during trial, accepted the prosecution case and vide judgment of conviction impugned in this appeal concluded that the prosecution had succeeded in proving its case against the appellant by leading evidence beyond any reasonable doubt. The trial Court was of the opinion that the evidence itself and the circumstances proved by the prosecution when collectively considered led only to the irresistible conclusion that the appellant alone was the perpetrator of the crime with which he was charged and the circumstances firmly proved by the prosecution were consistent only with the hypothesis of the guilt of the appellant. The appellant was, accordingly, convicted and sentenced by the trial Court vide its judgment dated 16.05.2017 and order dated 19.05.2014 respectively, which are impugned in this appeal.
8. Admittedly, there are no eye witnesses to the commission of crime by the appellant and the entire case of the prosecution rests on circumstantial evidence. The circumstances relied upon by the trial Court, which, as per the trial Court, have been firmly established by the prosecution are as under:-
i) Motive.
ii) The deceased last seen with accused-appellant.
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iii) The disclosure statement made by the appellant and the recovery of weapon of offence i.e. plastic rope at the instance of the appellant.
iv) The conduct of the appellant post commission of the crime.
v) Medical evidence.
vi) Circumstances like the deceased when left her house for
jungle was looking cool, calm and charming without there being any sign of frustration suggesting any inference to commit suicide within next two hours, the witnesses having seen the appellant with a piece of plastic rope in his hand in the jungle near the place of occurrence.
9. With regard to motive, the trial Court has strongly relied upon the statement of PW-Rano Devi, the mother of the deceased, PW-Geeto Devi, wife of Bittu, the brother of the deceased, PW-Taro Devi, sister-in-law of the deceased, PW-Sansar Chand, the brother of the deceased, PW-Des Raj, cousin of the deceased and PW-Gopalu, the Panch of the locality in which the parents of the deceased reside. On the basis of their statements, the trial Court has concluded that the deceased was subjected to cruelty in connection with dowry demands and that the failure of the deceased and her family to meet the dowry demands made by the appellant was, thus, the motive to kill the deceased Sushma Devi.
10. With regard to the disclosure statement made by the appellant and the consequent recovery of the weapon of offence made at his instance, the trial Court has strongly relied upon the statements of PW-Gopalu and PW- Bhagu and has held the same proved.
11. With regard to the medical evidence, the trial Court, after analyzing the statement of Dr. Shailaja and having regard to the finding and the opinion recorded by her on the basis of postmortem of the deceased, has come to the conclusion that the cause of death of the deceased was not 8 CRA No.18/2017 hanging but strangulation that, too, with the help of rope, which was seized pursuant to the disclosure statement made by the appellant.
12. Regarding other circumstances, the trial Court has relied upon the oral testimony of the witnesses to conclude that there was no reason or occasion for the deceased to commit suicide and that the conduct exhibited by the appellant post commission of the crime viz. first going to his in-laws house and staying there for a night and not making effort to trace his wife, were suggestive of the fact that the appellant was playing smart to hide the crime, which he had committed by taking the life of his wife for having failed to meet his demands of dowry. The trial Court finally concluded that the circumstances pointing to the guilt of the appellant were conclusively established and cumulative result of the established circumstances lead only to one hypothesis which was inconsistent with the innocence of the appellant. It is primarily on these premises the trial Court has found he appellant guilty of murdering his wife. The appellant has been, accordingly, convicted and sentenced for commission of offence under Sections 498-A and 302 RPC. There is, however, no discussion on the last seen theory also propounded by the prosecution. Learned trial Court has, for reasons not forthcoming from impugned judgment, skipped discussion on it.
13. Heard learned counsel for both the sides and perused the entire material on record including the evidence led by both the parties. We have also carefully scrutinized the judgment impugned and analyzed the reasoning given by the trial Court in support of its conclusion. 9 CRA No.18/2017
14. We, however, find that the prosecution has miserably failed to prove its case by leading evidence beyond any reasonable doubt. Indisputably, in the instant case, there were no eye witnesses to the occurrence and the entire case of the prosecution was founded on circumstantial evidence. We have absolutely no doubt and the position is otherwise well settled that conviction can solely be based on circumstantial evidence, provided it satisfies the following tests:-
i) All the circumstances forming a chain of evidence must be fully established and no link in the chain should be found missing. It would be like a jigsaw puzzle, whose pieces are correctly put in place.
ii) Circumstantial evidence must be consistent with the hypothesis of the guilt only of the accused and of none others.
iii) It must be of conclusive nature.
iv) It should be inconsistent with the innocence of the accused.
v) It should exclude every other hypothesis except the guilt of the accused.
(See K.T. Palanisamy vs State Of Tamil Nadu, AIR 2008 SC 1095)
15. Before we delve further into the facts and circumstances of the instant case, we need to understand what the circumstantial evidence exactly is. The word "circumstantial" itself implies that what is evident directly from the circumstances in any particular case, even though, the evidence itself is not direct, as is well said that a witness may lie but not the circumstances. It is, therefore, not in dispute that many a times circumstantial evidence becomes the only source for convicting a person. Chief Justice M Momir in the book "Textbook on The Law of Evidence" at page 13 very elegantly differentiates between direct and circumstantial evidence and points out that: English text writers divide the evidence into
(a) direct or positive evidence and (b) indirect or circumstantial evidence. 10 CRA No.18/2017 In this sense direct evidence is that which goes expressly to the very point in question and proves it, if believed, without aid from inference or deductive reasoning, e.g., eye witness to a murder is direct evidence. The circumstantial evidence does not prove the point in question directly, but establishes it only by inferences. Thus, if there is no eye witness to a murder, the fact that A had the motive to murder B or that A was seen running away with a blood stained knife from B‟s room where B was found dead immediately after B‟s cries were heard would be circumstantial evidence as against A.
16. Similarly, G.S.Pande, a retired Professor of Law from Lucknow University has explained the concept of circumstantial evidence in the following words:-
"Circumstantial evidence is that which relates to various circumstances which are associated with the real point in issue in such a way as to help the Court in coming to a conclusion about the existence or non-existence of the fact in issue. It is often said that a witness may tell a lie but circumstances cannot. It is an exaggeration of its importance though it contains a grain of truth insofar as circumstances have no volition and they cannot have interest and motive which inspire a human being to give false evidence. However, circumstances can also mislead the Court. Sometimes they can also be manipulated by human agency."
17. What is said by Prof. G.S.Pande reproduced herein must serve as a note of caution for all Courts that they must, before arriving at any judgment, take into consideration the crucial fact that circumstantial 11 CRA No.18/2017 evidence is not manipulated by any human agency, which includes the police or other authority investigating the case. Should they fail to take into account this important aspect of circumstantial evidence, there is every likelihood of an innocent person being wrongly sent to gallows or jail, as the case may be for no fault except that circumstances implicate him in any particular case.
18. While appreciating the evidence on record in particular the circumstantial evidence, we need to keep in mind the cardinal principal of criminal jurisprudence that accused is presumed to be innocent till proven guilty and the burden to establish the guilt of the accused is on the person or authority that brings out charge against him. It is for the prosecution to prove its case by leading evidence beyond any reasonable doubt. The evidentiary value of the circumstantial evidence acquires immense importance in the absence of direct evidence in any given particular case. The circumstantial evidence essentially means establishment of a fact from which some other fact is inferred. It deals with a fact on which an inference is to be founded, as there could be fallibility of inference, as such, it is not considered best type of evidence.
19. At this point, we would like to refer what was pointed by Sir Alfred Wills in his book on „circumstantial evidence". The author delineated and explained the rules that are to be kept in mind while following the circumstantial evidence in the following manner:-
(1) The facts alleged as the basis of any legal
inference must be clearly proved and beyond
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reasonable doubt connected with the factum
probandum;
(2) the burden of proof is always on the party who
asserts the existence of any fact, which infers
legal accountability;
(3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits;
(4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted".
20. Having said that, we cannot give diminished importance to the views of Baron Parke when he says that higher degree of evidentiary value is required to be accorded to the circumstantial evidence. In the words of Boren Parke, in the circumstantial evidence, if cogent and properly let in is of better probative value than direct evidence, for any scheming witnesses might concoct a well-knit story. The well known jurist Salmond, too, endorses what Baron says to conclude that "it is usually more difficult to fabricate a convincing chain of circumstance than to utter a direct lie."
21. It is, thus, trite that before convicting a person on circumstantial evidence alone, Court must fully satisfy itself that circumstances are 13 CRA No.18/2017 conducively established and point convincingly to the guilt of the accused and that the accused is unable to satisfactorily explain the circumstances that leave him/her in dock.
22. Hon‟ble the Supreme Court in the case of Eradu v. State, AIR 1956 SC 316 held circumstantial evidence should point inevitably to the conclusion that it was the accused and the accused only who were the perpetrators of the offence and such evidence should be incompatible with the innocence of the accused.
23. In Sharad Birdichand Sarda v. State of Maharashtra, AIR 1984 SC 1622, Hon‟ble the Supreme Court elaborated the five golden principles of circumstantial evidence laid down in Hanumant v. State of M.P., AIR 1952 SC 343, which are being followed consistently in the later cases. These five principles are as follows:-
"1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.
2. That facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
3. The circumstances should be of a conclusive nature and tendency.
4. They should exclude every possible hypothesis except the one to be proved, and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the 14 CRA No.18/2017 innocence of the accused and must show that in all human probability that act must have been done by the accused."
24. It is in the background of aforesaid concept of circumstantial evidence enunciated by various jurists and judgments of Hon‟ble the Supreme Court, we need to understand the case.
Motive
25. In a case based on circumstantial evidence only, the proof of motive for commission of offence is not sine qua non but nonetheless it is a relevant factor and some times it fortifies the different links in the chain of circumstances leading to the only hypothesis of the guilt of the accused.
26. In the instant case, the prosecution has projected that consistent demands of dowry by the appellant from the deceased and her parents was the motive to get rid of the deceased and, therefore, an inference that the deceased has been murdered by the appellant.
27. With a view to establish the motive, the prosecution has strongly relied upon the statement of PW-Rano Devi. If we read the statement of PW-Rano Devi, who is none other than the mother of the deceased, which was recorded under Section 174 Cr.P.C. during inquest proceedings, we find that the witness did not suspect murder of the deceased by the appellant. In her statement, she has deposed that some time after the marriage of the deceased with the appellant, the appellant started beating her for bringing less dowry and that the appellant was demanding more dowry items. She in her statement has further claimed that she had told the appellant that presently they were not in a position to provide more dowry 15 CRA No.18/2017 items but on the availability of sufficient source of income, they would provide him more dowry but he should stop harassing the deceased. The appellant, however, did not listen to them and continued with his demands and did not stop beating the deceased. On 18.05.2014, the appellant again subjected the deceased to beating and, therefore, the deceased having totally fed up with the her husband ended her life. On 10.02.2015, when Rano Devi appeared in the witness box as a star prosecution witness, she deposed that the marriage of the deceased with the appellant was solemnized a year before her death. The relations between the two were cordial for 3-4 months and thereafter appellant started beating the deceased. This was told to her by the deceased. She was further told by the deceased that the appellant was putting up a demand for one television and one gold chain. The witness further states that she told her daughter that they were poor and they will provide the same as and when they will have the requisite resources. After persuading, the deceased daughter left for her marital house. The witness also claims in her deposition that with regard to the issue of harassment of the deceased, a panchayat was also held in the presence of Panch, PW-Gopalu and other inhabitants of the mohala. In the panchayat, where appellant was also present, he was told not to beat the deceased and that they will provide him dowry as and when they will have resources. She has also made the statement that on the evening, the deceased went missing from her in-laws house, the appellant visited their house and stayed there for the night. He informed the witness and other members of the family that the deceased had gone missing and that he had slapped her twice during the day.
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28. In cross-examination, the witness admits that in the statement recorded under section 164-A Cr.P.C., she had not mentioned regarding beating of the deceased by the appellant or with regard to the holding of panchayat meeting in the presence of prosecution witness-Gopalu Panch. She, however, explaines that she did not narrate these facts, as she was not asked about them. With regard to the statement made by the witness-Rano Devi in examination-in-chief that the appellant had confessed that he had killed the deceased with the rope for dowry, the witness in her cross- examination states that, though, there was no mention with regard to this point in the statement recorded under Section 164-A Cr.P.C., yet she states that the appellant confessed this thing on the day of incident in the evening when the appellant had come to her house and stayed there for a night. She also claims to have made a telephone call to the sarpanch of the area in this regard. In cross-examination the witness also concedes that the appellant never demanded any dowry at the time of marriage and that during his 2-4 visits to her house along with her deceased daughter, he never demanded T.V. or gold chain from the witness. The witness also denies that the appellant ever beat her deceased daughter in her presence. Rather she states that whenever the two visited her place they were found in good relation.
29. PW-Geeto Devi, PW-Taro Devi, PW-Sansar Chand, PW-Gopalu, PW-Des Raj have also made highly contradictory statements with regard to the demand of dowry. PW-Geeto Devi in her examination-in-chief has deposed that it was the deceased who was telling about the beating and demands of dowry by the appellant. The deceased was also telling to her mother and other family members. She states that family members were 17 CRA No.18/2017 persuading the appellant and the deceased not to quarrel and take care of their relation and home. The appellant never listened to them and continued to harass the deceased for bringing less dowry. On the fateful day also, the deceased was beaten up by the appellant at her home and she ran away from the house and later her dead body was found in the forest. She also narrates that it was the appellant, who, after beating the deceased, had come to their house and told that a quarrel between him and the deceased had taken place and the deceased had gone missing.
30. In her cross-examination, the witness, however, states that her statement was never recorded by the police and the statements of only male members of her family were recorded. She also states that the appellant had not beaten the deceased in her presence. In her cross-examination, the witness also narrates two episodes that had taken place in her house when there had been quarrel between the appellant and the deceased. She, however, clarifies that she was not present during the first fight that took place in her house nor did she know the reason for such quarrel. Even on the second occasion when fight between the two took place, the witness states that she had gone to another house and, therefore, had not witnessed the quarrel. She also makes a revelation in her cross-examination that the deceased was ill-tempered and would never listen to anybody. She also admitted that she had told the police that the deceased had committed suicide.
31. PW-Taro Devi admits her statement under Section 161 Cr.P.C. before the police and states that she had not made any statement with regard to demand of dowry items viz. T.V. and gold chain. She, however, 18 CRA No.18/2017 claims that fight between the two i.e. appellant and the deceased was not due to any dowry demand but because of the habit of the appellant of taking liquor.
32. PW-Sansar Chand is the real brother of the deceased and is on record to say that the relations of the appellant and the deceased were good. All these witnesses are of course interested witnesses being close relatives of the deceased and may have inclination to implicate the appellant whom they held responsible for the death of the deceased-Sushma Devi.
33. PW-Gopalu, Panch of the area where the parental house of the deceased is situate is relatively an independent witness. Except that he resides in neighborhood of the parental house of the deceased, he has no other relation with the deceased. His knowledge of the demand of dowry which was being consistently made by the appellant and his treatment towards the deceased is obviously hearsay. He does not claim to be eye witness to any demand of dowry having been made by the appellant nor has he claimed to have seen the appellant beating the deceased. His statement, however, is to the effect that the deceased whenever she would come to her parental house she would complain of demand of dowry made by the appellant and her being beaten by the appellant for such demand. The witness also claims that he would request the appellant whenever he would come to his in-laws that the parents of the deceased were very poor and, therefore, not in a position to provide more dowry. The appellant would repent and say that this mistake will not be repeated in future.
34. In his cross-examination, the witness states that after 5-6 days of the recovery of the dead body of the deceased, his statement was recorded in 19 CRA No.18/2017 Police Station, Pancheri and that the statement was signed by him and after about 10-12 days of the incident, his statement was recorded in the Court in Udhampur. The witness, however, admits that during recording of his statement under Section 164-A Cr.P.C., he did not disclose to the police that whenever the deceased was visiting her parental house she was telling him that the appellant was harassing and beating her for bringing less dowry. He also admits that he never told the police that he had persuaded the appellant with folded hands that he should not harass and beat the deceased.
35. The witness in his cross-examination also claims that in his statement recorded under Section 164-A Cr.P.C. he had stated that the appellant had threatened the deceased to kill her, which part of his statement is, however, not found recorded in the statement recorded under Section 164-A Cr.P.C. with which the witness was confronted. This witness, too, has confirmed that at the time of marriage the appellant had not put up any demand of dowry. There is, however, no whisper about the panchayat held by the witness to sort out the dispute between the appellant and the deceased. This is in a nutshell the evidence produce by the prosecution to prove motive.
36. While we agree with the learned trial Court that demand of dowry and fights between husband and wife do not always took place in the open and, therefore, statements of the witnesses that there had been a consistent demands of dowry by the appellant for which the deceased was being beaten, as was told to them by the deceased may be relied upon but the fact 20 CRA No.18/2017 remains whether the evidence of the witnesses, as discussed above, is consistent and inspires confidence is a crucial question to be determined.
37. We have briefly referred to the statements of the witnesses to the demand of dowry and beating administered to the deceased. We are not convinced that the prosecution has firmly established the factum of demand of dowry by the appellant or that the deceased was being harassed to bring more dowry. The evidence on record clearly establishes that marriage between the appellant and the deceased, which was solemnized a year before the death of the deceased, was dowry less. Both parties belong to poor strata of the society in which the dowry in the marriages does not play an important role. Even if, we assume for the sake of argument that there was some demand for some items of dowry by the appellant and that, occasionally, there used to be a fight between the husband and the wife, yet it cannot be inferred that the appellant killed the deceased for not bringing more dowry.
38. There is no evidence on record to show that the deceased was ever turned out by the appellant from the matrimonial home or that he ever showed his desire or intention to get rid of his wife by divorce or otherwise. There is nothing on record to suggest that the appellant wanted to get rid of the deceased for solemnizing second marriage and to fulfill his desire of dowry.
39. In the absence of such linking evidence, merely because there was demand of dowry and altercations between husband and the wife, it cannot be said, by any stretch of reasoning, that failure of the deceased to meet the dowry demand of the appellant was the motive for crime. 21 CRA No.18/2017
40. That apart, as we have held above, the evidence on record does not firmly establish the motive of crime. Even dowry demand by the appellant and the harassment meted out to the deceased by the appellant is not fully established. The statements of the witnesses are highly contradictory and full of inconsistencies and, therefore, cannot be relied upon. We, therefore, do not concur with the finding of fact recorded by the trial Court that the failure of the deceased and her family to meet the dowry demand(s) of the appellant was the motive for committing murder of the deceased by the appellant.
Last seen theory:
41. The last seen theory, though feebly projected by the prosecution in the charge sheet, is neither proved during the trial nor has the trial Court said anything about it in the impugned judgment. The last seen theory propounded by the prosecution was sought to be supported by the testimonies of PWs, Kuldeep Singh, Sunil Kumar, Subash, Kirpal Singh and Chur Singh. PW Kuldeep Singh has turned hostile and has, in his deposition recorded during the trial, submitted in categoric terms that he had no knowledge about the case. The prosecution got the witness declared as hostile and subjected him to cross examination. Despite sustained cross examination nothing incriminating could be elicited from the witness. He would state that the deceased has committed suicide and it is for this reason the Police appears to have arrested the appellant. He has denied having met the appellant while he was on visit to his deity (Shankhpal Temple) for 22 CRA No.18/2017 making offerings. He has also denied that during the aforesaid period he even visited his Deity, as is attributed to him by police.
42. PW Sunil Kumar in his statement recorded during trial has deposed that he saw the deceased coming out of her house and going towards the forest along with her goat. He also testifies that the appellant and the deceased were having good relations and that he had never seen them quarrelling with each other. He, in his cross examination, has affirmed that when he saw the deceased going towards the forest with her goat, he had not seen appellant following her towards the forest. He, in fact, states that he was not aware as to where the appellant was at that point of time. The prosecution has given up PWs Subash and Kirpal and their statements were not recorded by the prosecution. Both of them have been examined by the defence as its witnesses. So far as PW Chur Singh is concerned, he is merely a hearsay witness as, he, in his deposition, has stated that PW Kuldeep Singh had told him that he had seen a rope in the hand of the appellant. He, however, does not say anything with regard to the deceased.
43. In view of the aforesaid testimonies of the witnesses, it is a foregone conclusion that the prosecution has miserably failed to prove this circumstance. The prosecution has not been able to demonstrate firmly that immediately prior to the commission of crime, the appellant and the deceased were seen together rather the evidence on record points to the fact that the deceased had left for the jungle along with her goat alone on the fateful day but her dead body was recovered on the next day. At this juncture we find it appropriate to reproduce observations made by Hon‟ble 23 CRA No.18/2017 the Supreme Court in paras 14 and 15 of the judgment in Shailendra Rajdev Pasvan v. State of Gujrat, 2020 (14) SCC 750, which reads thus:-
"14. Another important aspect to be considered in a case resting on circumstantial evidence is the lapse of time between the point when the accused and deceased were seen together and when the deceased is found dead. It ought to be so minimal so as to exclude the possibility of any intervening event involving the death at the hands of some other person. In the case of Bodh Raj Alias Bodha v/s State of Jammu and Kashmir, Rambraksh v/s State of Chhattisgarh , Anjan Kumar Sharma v/s State of Assam following principle of law, in this regard, has been enunciated:-
"The last seen theory comes into play where the time gap between the point of time when the Accused and deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the Accused being the author of crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the Accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that Accused and deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases".
15. In the case at hand, evidence of PW-28 and PW-29, who were crucial to the case of prosecution to establish that deceased was last seen with Appellant Accused no.-1, is riddled with unexplained contradictions and thus were rightly dis-believed by the trial court. High Court committed an error of law in placing reliance upon the evidence of the aforesaid two witnesses. The High Court also failed to take into account the time gap between the point when the Accused Appellant No.-1 and deceased were seen together and when the death is alleged to have occurred. According to the prosecution evidence the two were seen together on 04.02.2001 at about 10:30 a.m. The dead body was recovered on 13.02.2001. Post- mortem was conducted on 14.02.2001. Although the possible time of death is not indicated in the post- mortem report but the Doctor who carried out the post-mortem opined in the statement that the time of death can be estimated to be 36 to 48 hours before the post-mortem . This clearly goes to show that there was a huge time gap between the point when the accused and deceased were last seen together and the time of death. This crucial fact has been miserably over looked by the High Court. Apart from Extra-Judicial Confession by Appellant Accused No.-1 no direct evidence was adduced by the prosecution to establish involvement of the accused in the alleged crime. Entire case of the prosecution was based on circumstantial evidence and theory of last seen together. The extra-judicial confession of Appellant No.-1 before the complainant and other relatives and recovery of the dead body were linked together by the prosecution to form a chain."
24 CRA No.18/2017In the instant case, the time gap between the alleged last seen and the recovery of dead body is more than a day and there is every possibility of any person other than the appellant being the author of the crime. The trial Court has skipped this aspect, and rightly so, as there was no convincing and reliable evidence to prove it.
Disclosure Statement and recovery of weapon of offence i.e. 'Ligature' pursuant thereto:
44. The another circumstance relied upon by the prosecution to connect the appellant with the death of the deceased is that the appellant, while being in custody of police, made a disclosure statement on 31.05.2014 that he had concealed one rope made of cement bags under a stone in the forest Khaliya Dabbar Katti Tehsil and District Udhampur and that he could identify the place and get the rope recovered. He has further disclosed that he alone has the knowledge about the concealing of rope and none else. As per prosecution, there were four witnesses to the disclosure statement i.e. PWs Sansar Chand, Gopalu, Sg Ct. Mohd Sadiq and Bhagu. Apart from the aforesaid witnesses, the Investigating officer, who is a scribed of the disclosure statement, has also made a statement that it was he who put the appellant to sustained interrogation and kept him standing for the whole day on 30.05.2014 so that he could divulge the truth. He has also stated that the appellant succumbed in the morning of 31 st May, 2014 and made the aforesaid disclosure statement. It is worthwhile to note that the rope, which is shown to be recovered at the instance of the appellant pursuant to the 25 CRA No.18/2017 disclosure statement made by him, has neither been sealed nor has the same been sent to the Forensic Science Laboratory.
45. Coming to the statement of the witnesses, PW Bhagu states that the disclosure was made on 30.05.2014 that too on spot of recovery of the rope and was not made in the Police Station, as is the prosecution story. This witness, in his examination-in-chief, has deposed that he along with others visited the place where the dead body of the deceased was lying and in their presence the SHO enquired from the appellant as to how the deceased was hanged in this manner which is unlike hanging and to which the appellant disclosed that because he could not lift the deceased. He further states that at the time of appellant making this disclosure statement, the police wrote some papers and obtained his thumb impressions. He thereafter clarifies that disclosure statement was not prepared in his presence but recovery memo EXP7-1 was prepared in his presence. He also identifies his thumb impression put on the recovery memo. The long and short of the statement of PW Bhagu is that he is not a witness to the disclosure statement and the disclosure statement to which he is referring to, which was made by the appellant in the presence of SHO and others including the witness, was made in the jungle at the place of occurrence.
This, however, is not the prosecution case at all. The Investigating Officer, in his statement has clearly stated that after he subjected the appellant to sustained interrogation for the entire day of 30th May, 2014, the appellant divulged the truth on the morning of 31st May, 2014. The disclosure made by the appellant was recorded in the presence of witnesses named above. 26 CRA No.18/2017
46. At this juncture it is important to note that from reading of the disclosure statement allegedly made by the appellant in police custody on 31.05.2014, it is evident that the appellant never made a statement to the extent that the rope, which he had hidden under a stone in the jungle, was the one that he used for commission of the crime, i.e. strangulation of the deceased. PW Gopalu has, to some extent, supported the prosecution version but could not explain the contradictions appearing in his statement recorded under Section 164-A Cr.P.C. He, however, states that deceased had disclosed to him that the appellant had threatened to kill her, which, his statement under Section 164-A Cr.P.C does not reflect. There is also a contradiction between the statement which he made under Section 164-A Cr.P.C with regard to the disclosure statement and the one which was recorded before the trial Court. The witness in his statement recorded in Court claims that he had made a statement before the learned Magistrate that the appellant was arrested on 27.05.2014 and he made the disclosure statement on 31.05.2014, which part of the statement claimed to have been made by the witness, however, is missing from the actual statement recorded under Section 164-A Cr.P.C recorded by the learned Magistrate. This clearly is an improvement and renders his statement with regard to disclosure an afterthought. In his statement PW Gopalu claims that he visited the place where the weapon of offence was allegedly concealed along with Sansar Chand and Bhagu. PW Bhagu, however, has not supported his statement. As a matter of fact PW Bhagu was declared hostile by the prosecution and subjected to cross examination. 27 CRA No.18/2017
47. Coming to the statement of PW Sg Ct. Mohd Sadiq, he, in his deposition, has twisted the story of disclosure statement made by the appellant. He states that during interrogation on 31.05.2014 the appellant made a statement that on 18.05.2014 during the day time a quarrel had taken place between the appellant and his wife who thereafter fled away from the house. She was chased by the appellant for two and a half hours and was strangulated to death by him in the jungle with a rope. As per this witness, the appellant also disclosed that he had concealed that rope beneath a bolder. Upon such disclosure having been made by the appellant, the Investigating officer recorded the disclosure statement which was witnessed and signed by PWs Gopalu, Bhagu and Sansar Chand. He has also proved the disclosure statement EXPW 7 and recovery memo EXPW7-1.
From the statement of PW Mohd Sadiq it comes out that though a confessional statement was made by the appellant admitting the fact that he had strangulated his wife to death with a rope, which rope he had concealed beneath a bolder, yet we do not find any such thing having been recorded in the disclosure statement. We are aware that any confession or admission of guilt made by the accused in police custody is not admissible in evidence under Section 25 and 26 of the Evidence Act, yet so much of the information disclosed by the accused as would lead to the discovery of the relevant fact is admissible and can be a circumstance in the chain of events leading to commission of crime. PW Sansar Chand, who is brother of the deceased and is a witness to the disclosure statement and the recovery 28 CRA No.18/2017 memo, has though admitted the correctness of the contents of recovery memo of weapon of offence, receipt of dead body, disclosure statement and seizure of clothes of the deceased, but has not said anything as to when and where the disclosure statement was made or the recovery of the weapon of offence was made and, whether the weapon of offence, which was recovered at the instance of the appellant was concealed at a place which could have been known only to the appellant and none else or it was a place, a thoroughfare, accessible to all.
48. Although PW Des Raj is not witness to the disclosure statement or the recovery of weapon of offence, yet he has, in his statement, stated that the Ligature was recovered from the house of the appellant. PW Buraf Singh, in his deposition before the Court, states that the Ligature was recovered by the villagers. PW Sansar Chand son of Mangat Ram in their depositions states that the Ligature was recovered from the bushes. The other prosecution witnesses, who have not been cited as witnesses to the disclosure statement and the recovery of Ligature, have, in their statements, given different versions.
49. We have carefully gone through the judgment impugned and find that this vital circumstance has skipped the attention of the learned trial Court. The learned trial Court has discussed the evidence in extenso but has not given its findings with regard to the disclosure statement allegedly made by the appellant and the recovery of weapon of offence at his instance and on his identification from the place which was exclusively known to the appellant. The trial Court has mainly gone by the motive and 29 CRA No.18/2017 the medical evidence to conclude that the death of the deceased was not a suicide but by strangulation by the appellant with the help of Ligature ( a plastic rope).
50. With a view to connect the act of strangulation with Ligature (weapon of offence), attributed to the appellant, it was necessary for the prosecution to prove that the Ligature recovered at the instance of the appellant was the one used by him for strangulating the deceased to death. From the perusal of the disclosure statement and the consequent recovery of Ligature made from beneath the bolder in the forest, we cannot say with certainty that the plastic rope, which is shown to have been recovered from beneath the stone on identification by the appellant, is the weapon of offence even if we presume that the death of the deceased was not suicidal but homicidal. Neither in the disclosure statement nor anywhere else it has come that the Ligature recovered was the same Ligature as was used by the appellant for strangulating the deceased to death. The prosecution has set up PW Kuldeep and PW Arif Tak as prosecution witnesses to supply this link. PW Arif Tak, though stood by his statement made to the police on 14.06.2014 that police of Police Station Pancheri produced one Kuldeep Singh in his office who identified a rope which was already seized by police and stated that on the date of occurrence he had seen the accused holding this piece of rope in his hand and proceeding towards the place of occurrence. He has proved the Fard Shinakhat having his seal and signature affixed thereon. In his cross examination, this witness, who was at the relevant time posted as Naib Tehsildar Pancheri, has deposed that the rope 30 CRA No.18/2017 which was produced before him was neither in a sealed condition nor did he affix his seal or pasted any slip on it. The piece of rope was, however, made of plastic fibre which was also available in market. In these circumstances, it is difficult to say that rope which was shown to PW Arif Ahmed Tak, Naib Tehsildar, was the one that was recovered at the instance of appellant pursuant to the disclosure statement made by him. PW Kuldeep has, however, backed out of his statement and has not supported the prosecution case at all. We have already adverted to the statement of PW Kuldeep wherein he has denied that he knows anything about the case. He has also denied of having appeared before the Naib Tehsildar Arif Tak and identified the rope.
51. Having regard to the evidence led by the prosecution with regard to the disclosure statement discussed above, we are of the considered view that the fact of disclosure statement made by the appellant and the recovery of Ligature at his instance, has not been firmly established and, therefore, cannot serve as a concrete and reliable link in the chain of circumstances relied upon by the prosecution to establish the guilt of the appellant.
52. A three Judge Bench of Hon‟ble the Supreme Court in the case of Sarwan Singh and ors v. State of Punjab, 1976 (4) SCC 369 was confronted with such like situation and what was held by Hon‟ble the Supreme Court in para 14 of the judgment reads thus:-
"14. Reliance was, however, placed by the prosecution upon recovery of Exts. P. L., P. M., P N., P. O., P. Q. & P. R. We are. however, in the present case concerned only with the recovery of weapons from the three appellants which are reflected in Exts. P. L., P.Order and P. R. In the 31 CRA No.18/2017 disclosure statement leading to' the recovery of the weapons which are the subject-matter of these documents, there is no statement by the accused that they had committed an offence of murder with the weapons recovered at their instance. It is also clear that none of the weapons recovered from the three appellants bore any bloodstains. In these circumstances, therefore, it seems to us that the mere recovery of the weapons is not a very material circumstance against the accused particularly when every villager is supposed to possess one. Exhibit P. L. is the recovery memo of a gandasa, which is said to have been recovered from the person of Amar Singh on July 25, 1970 while he was coming on the turning of link road of Gurusar. It is obvious that this recovery is absolutely meaningless. The gandasa did not have any bloodstains and all that this recovery shows is that the appellant Amar Singh did undoubtedly possess the gandasa. Exhibit P. 6. is the recovery memo of a takwa which was recovered and produced at the instance of the appellant Sarwan Singh. Here also there was no disclosure statement and all that is proved is that Sarwan Singh was possessed of the takwa in question. Lastly Ext. P. R. is the recovery memo of a ghop recovered at the instance of Mukhtiar Singh from a ditch near the canal minor Kangar. This also shows that Mukhtiar Singh was possessed of the ghop. Thus while these recoveries cannot be treated to be an incriminating evidence against the accused, at least this much is certain that the definite case of the prosecution was that these weapons belonged to the appellants and appear to have been used in the assault on the deceased. The prosecution cannot be allowed to resile from this position. This matter will be explained further when we discuss the medical evidence.
53. Analyzing the fact situation obtaining in the instant case in the light of law laid down in Sarwan Singh‟s case (supra), we find that the appellant nowhere in his disclosure statement has admitted that the Ligature i.e. a plastic rope, which was recovered at his instance, was the one he had used for committing the murder of the deceased nor can it be said that the place where it was concealed was inaccessible and known only to the appellant. It has come in evidence that the place from where the Ligature ( plastic rope) was recovered, was a grazing land in the forest and visited by all the 32 CRA No.18/2017 villagers. As has also come in the statement of Arif Tak, Naib tehsildar that such ropes are available in the market. The effort to connect the rope seized/recovered with the rope produced before the Naib Tehsildar and identified by PW Kuldeep, as also the rope which PW Kuldeep has seen in the hand of the appellant near the place of occurrence on the date of occurrence, has all failed. The rope, which was allegedly recovered from beneath the stone at the instance of the appellant, was not sealed nor was any identification mark put on it. It is so stated by PW Arif Tak in his statement. In the absence of proper identification mark put on the rope and the same having not been sealed properly, it is difficult to say that it is the rope which was recovered at the instance of the appellant that was produced before the Naib Tehsildar and allegedly identified by PW Kuldeep. PW Kuldeep has turned hostile and has not supported his version. In the light of this weak evidence one cannot, by any stretch of reasoning, conclude that the prosecution has established beyond reasonable doubt the fact of the appellant having made a disclosure statement that he had used the plastic rope to strangulate his wife and that he had kept the plastic rope hidden beneath a stone in the forest. This circumstance was vital circumstance to be established if accused were to be connected with the commission of crime.
54. As is held by Hon‟ble the Supreme Court in the case of Sangili @ Sanganathan v. State of Tamil Nadu, 2014(10) SCC 264, the burden to establish close link between the discovery of the material object and its use in the commission of offence lies on the prosecution. Under Section 27 of 33 CRA No.18/2017 the Evidence Act it is the information that leads to the discovery and not the opinion that is formed on it by the prosecution which is admissible.
55. In the case of Mustkeem @ Sirajudeen v. State of Rajasthan, 2011 (11) SCC 724, Hon‟ble the Supreme Court in para 25 and 26 of the judgment made the following observations:-
"25. With regard to Section 27 of the Act, what is important is discovery of the material object at the disclosure of the accused but such disclosure alone would not automatically lead to the conclusion that the offence was also committed by the accused. In fact, thereafter, burden lies on the prosecution to establish a close link between discovery of the material objects and its use in the commission of the offence. What is admissible under Section 27 of the Act is the information leading to discovery and not any opinion formed on it by the prosecution.
26. If the recovery memos were prepared at the Police Station itself then the same would lose its sanctity as held by this Court in Varun Chaudhary Vs. State of Rajasthan reported in AIR 2011 SCC 72."
56. Viewed thus, we hold that the prosecution has not convincingly and firmly established the factum of appellant having made a disclosure statement on the basis of which the weapon of offence was recovered. Medical Opinion:
57. Dr. Sheleja, is the only prosecution witness to prove the medical opinion as to the cause of death of the deceased. Before we appreciate her deposition made in the Court, we deem it necessary to reproduce the relevant portion of the autopsy report:-
" II. External and Internal Injuries:34 CRA No.18/2017
1. Ligature mark around the neck extending obliquely towards back of neck, the ligature mark is chocolate in colour furrowed below thyroid cartilage making gap in back of neck and ligature.
2. Fascia and vessels pressed and ruptured below ligature.
3. Skin beneath the ligature mark ecchymosed and hyperaniu.
4. Abrasion and scratches on hands.
5. Small deep red hypersonic sports on neck.
Opinion to cause of death:
Opinion: Reserved till the report from FSL Jammu is received. Details of viscera sent to FSL Jammu for chemical Analysis as under:-
1. Container No.1: Contey stomach and its contents.
2. Container No.2: Cuty piece of liver.
10/07/2014 Received viscera report of Sushma Devi W/O Kamlesh Kumar R/O Katti Teh and Distt. Udhampur from FSL/786-C&T/Sgr Dated 3/7/14 sevealy result as under:-
" No poison was detected in Exhibit Nos. Z-343/14 and Z-344/14"
Opinion:
- In my opinion strangulation leading to cardiopulmonary Arrest- Death
- Hyperanic and Ecctynosed ligature mark suggestive of hanging----- death".
58. Before we proceed to analyze the Postmortem report reproduced above and the opinion given with regard to the cause of death of the deceased, it is necessary to first appreciate the statement of Dr. Sheleja. Dr. Sheleja, who conducted the autopsy of the deceased, in her statement made in examination-in-chief states that on 20.05.2014 she was posted as Medical Officer of PHC Panchari where she conducted the Post-mortem of the deceased who was identified by her brother Sansar Chand and appellant Kamlesh Kumar. She had found injuries and made observations which have been recorded in the Post-mortem report annexed with the file. Same is in her hand and bears her seal and signatures. She has also given her opinion. As per her opinion, the deceased has died due to strangulation leading to Cardio Pulmonary arrest. She has given her opinion on the basis 35 CRA No.18/2017 of ligature mark, position around neck and some bruises and marks on hand which were used by her as defensive measures. She has issued the certificate regarding the use of rope which has been seen by her in the open Court, which has been duly marked by her. Same also bears her signatures. The certificate is true and correct and bears her seal and signatures. She has also issued another certificate to the effect that the ligature mark was not possible by Duppata. Same is exhibited as EXPW Dr 11. Same is true and correct and bears her signatures.
In cross examination the witness stated that her qualification is BAMS. She has not undergone any specialized course in Forensic Science. She is 2007 pass out. She was inducted in service in the year 2008 and it is her first posting at Panchari. It was also her first Postmortem. Before this case she had not conducted any Postmortem of a case of strangulation and hanging independently. She had given her opinion on 10.07.2014 after receiving report of FSL after two months of conducting autopsy. She had not consulted any book on the subject but had consulted her senior, Dr. G. L. Dogra, BMO. When she conducted the autopsy, he was not present there. She is aware about hyoid bone and cartilage rings, which are located on front part of throat. She cannot say about the number of such cartilage rings that are located there. She has not examined cartilage rings and hyoid bone in this particular case. It depends upon the impact of force whether the same will break the rings, cartilage and hyoid bone. She has not gone through the book of Modi‟s jurisprudence. She has not read in Modi‟s Jurisprudence as to what force, if applied is bound to fracture cartilage and 36 CRA No.18/2017 hyoid bone. She had noticed only one ligature mark. She has not given the dimension of ligature mark. After many days when the query was put to her regarding use of the rope, she issued the certificate EXPW Dr S1. It was after one month. The witness further states that within one to two days she gave her opinion. Her opinion was also based on internet sources. The rope was not shown by her to Dr. G. L. Dogra. On the basis of the nature and position of ligature mark, she gave her opinion. She was remembering the position of ligature mark when she issued the certificate. The blanks in the post-mortem report were filled by her at the time conducting the post- mortem.
The witness further states that she has not mentioned the diameter of rope with which said ligature mark could be caused. She has also not mentioned that ligature mark on the dead body was of rope. The position of knot mark of rope was on front side of the neck. She has not mentioned the same in certificate. There should have been a ligature mark over neck on back side. Knot was existing in the front of the neck and there was no gap from the back of the neck. She has committed a mistake in mentioning the gap of neck in the post-mortem report. There has not been any mistake committed by her in giving her opinion regarding cause of death. The dead body was having one ligature mark only. Ligature mark was of strangulation - and not because of hanging. Since it was an alleged case of hanging that is why she had to clear the same and give her opinion accordingly. Hyperemia and ecchymosis mark was suggestive of hanging after death. There was no mark of hanging on dead body of the deceased. 37 CRA No.18/2017 There was no Hyperemia and ecchymosis mark due to hanging. Last line in the autopsy report of EXPW-Dr.S at page No.4 is correct. Police had not told her beforehand that there was manual strangulation before giving her opinion. She had given the certificate to some S.H.O. who was a Sardar. Hyperemia and ecchymosis mark beneath the ligature is not caused after hanging but is caused due to strangulation and in this case it was due to strangulation. She has not mentioned the dimension of injury No.4 on page No.2. Abrasions and scratches on the hand may or may not be possible due to the strangulation while hanging by deceased. The witness does not remember this time about the findings regarding death due to strangulation or hanging on the basis of Modi‟s Jurisprudence. She stated that she cannot give her opinion regarding brain substance without opening skull. She has further stated that in case of cardio pulmonary arrest it is true that right side of heart gets filled with blood and left becomes empty and the same thing was present in this particular case. In case of strangulation, blood may or may not come from nostril. The witness further states that organ generation may or may not be congested in case of strangulation. The witness has further stated that she does not know as to whether she is eligible and competent under rule to conduct post-mortem but she did it on the directions of her seniors.
59. Obviously and indisputably the statement of the Doctor is not consistent and in conformity with her observations and the opinion recorded in the Post-mortem report. She has made lot of improvements in her statement recorded in the Court. As per the post-mortem report, the 38 CRA No.18/2017 doctor has found a single ligature mark around the neck, extending obliquely towards back of neck. The ligature mark was chocolate in colour furrowed below thyroid cartilage making gap in back of neck at ligature. She has, however, not give any opinion whether the injuries noticed on the dead body were anti Mortem or Post-mortem. On the basis of her observations of external and internal injuries, she has given the cause of death as strangulation leading of Cardio Pulmonary arrest. She further opines that Hyperemia and ecchymosed ligature mark is suggestive of hanging. On the basis of some injuries and the observations made by her in the Post-mortem report, she has changed opinion as regards the cause of death and states that the dead of the deceased was not possible due to ligature hanging. The reason which she gives for change of mind and opinion is that since she was told that it was a case of strangulation and, therefore, she re-visited her opinion. With regard to her observations in the Post-mortem report, that there was gap in back of neck at ligature, she says that it was her wrong opinion. The Doctor-witness is Bachelor of Ayurveda, Medicine and Surgery and is not sure whether she is competent to conduct the Post-mortem of a dead body. She, however, states that for the purposes of rendering her opinion as to the cause of death, she has consulted her senior Dr. G. L. Dogra, the then BMO Panchari. Interestingly, the prosecution has not cited Dr. G. L. Dogra as prosecution witness, who could have corroborated the medical opinion. The witness, when she was shown the weapon of offence (i.e. plastic rope) by the Investigating officer and was asked about her opinion as to whether the death of the deceased could have been caused by use of that plastic rope, 39 CRA No.18/2017 she, on the basis of her memory about the injuries that she had noticed at the time of Post-mortem, opines that it was so possible. This opinion, it may be noted, was rendered after one month of the conduct of the Post- mortem. There is another important aspect in the statement of the Doctor which deserves to be noticed. She, in her cross examination, has stated that there was a knot mark of rope on front side of the neck but she has mentioned nothing about it either in the Post-mortem report or the report which she subsequently gave on the asking of the Investigating Officer on 19.06.2014 (EXPW Dr.S-II).
60. From entire reading of the statement one would get an impression that the expert witness examined by the prosecution is not definite about her opinion as to the cause of death. She has not put forth any reasons, supported by medical jurisprudence, to justify her shift in the opinion as to the cause of death.
61. Learned counsel appearing for the State wanted us to evaluate the injuries noted by PW- Dr. Sheleja in her Post-mortem report in the light of expert opinion contained in Modi‟s Medical Jurisprudence. However, we are of the considered view that doing so is not likely to bolster the case of the prosecution, which otherwise is doomed to fail for total failure of the prosecution to establish link facts so as to complete the chain of circumstances leading to only hypothesis that it is the appellant and the appellant alone who is responsible for the murder of the deceased. We are short of evidence on record to conclude as to whether it was a suicidal or a homicidal death. The medical opinion is too vague and deficient to arrive at 40 CRA No.18/2017 any such conclusion. We cannot lose sight of the fact that it was first post- mortem conducted by Dr. Sheleja, who was only an Ayurvedic doctor, having no specialized knowledge of Forensic Science. As is admitted by her, she even did not open the body above the chest level and, therefore, could not have been certain about the internal injuries. Her opinion about the internal injuries is totally hypothetical and not based on actual examination of the injuries. The evidence of only one ligature mark on the neck is also suggestive of the fact that it could not have been a case of hanging of the deceased after strangulating her to death in an attempt to masquerade it as a case of suicidal death by hanging. In case a person is strangulated to death and then hanged to make it a case of suicide by hanging, there is every possibility of two ligature marks appearing round the neck. We could have gone into this aspect a little further but having regard to the fact that the prosecution has failed to establish other circumstances fully and firmly. As such, even if we were to believe that the deceased had died by ligature strangulation, yet we do not find adequate evidence to connect the appellant with the strangulation.
62. Having ringside appraisal of the facts and circumstances of the case and the quality and not the quantity of the evidence on record, we are of the considered view that the prosecution has miserably failed to prove the circumstances by leading evidence beyond any reasonable doubt. We do not find it a case where prosecution has proved and established the circumstances firmly and conclusively by leading evidence beyond any 41 CRA No.18/2017 reasonable doubt, which form a chain complete in itself, leading to a hypothesis which is inconsistent with the innocence of the appellant.
63. In view of the above, the other circumstances, viz the deceased was seen going to the forest with her goat merrily; the conduct of the appellant rushing to his in-laws house instead of making search of his wife, who had not returned home till evening; the failure of the appellant to lead evidence to prove that at the time of commission of crime he was present at a place other than the scene of occurrence, would all pale into insignificance. Firstly there is no concrete evidence in this regard and; secondly it is for the prosecution which brings out charge against accused to prove its case beyond reasonable doubt, if not, beyond any iota of doubt. The onus to prove the case put up by the prosecution against the accused lies solely on the prosecution, except in the cases where Statute provide reverse burden.
64. In the instant case there was no reverse burden on the accused and, therefore, it was not necessary for him to prove that at the time of occurrence he was at a place other than the place of occurrence or in other words plead and prove the plea of alibi more so when the prosecution had not been able to establish even the foundation facts.
65. In view of the aforesaid analysis, We find substance in the appeal preferred by the appellant. Consequently the appeal is allowed. The judgment of conviction as also the order of sentence impugned in this appeal is set aside and the appellant is acquitted of all the charges. He shall be set at liberty forthwith, if not wanted in any other case. 42 CRA No.18/2017
66. In view of fact that appeal of the appellant has been allowed, confirmation of the sentence is declined and CONF No. 05/2017 is rejected.
67. The record of the trial Court be returned.
(Mohan Lal) (Sanjeev Kumar)
Judge Judge
JAMMU.
March 23 , 2022
Anil Raina, Addl Reg/Secy
Whether the order is speaking : Yes
Whether the order is reportable: Yes