Jammu & Kashmir High Court
State Of J&K vs Vivek Gupta And Ors on 9 August, 2024
Author: Rajnesh Oswal
Bench: Rajnesh Oswal
HIGH COURT OF JAMMU AND KASHMIR & LADAKH
AT JAMMU
CRAA No. 69/2008
Reserved on : 25.07.2024
Pronounced on: 09.08.2024
State of J&K ...Appellant
Through :- Mr. Amit Gupta, AAG
v/s
Vivek Gupta and ors. .....Respondent (s)
Through :- Mr. Sunil Sethi, Sr. Advocate with
M. Sonica Parihar, Advocate
CORAM: HON‟BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
HON‟BLE MR. JUSTICE RAJESH SEKHRI, JUDGE
JUDGMENT
Rajesh Sekhri-J
1. This judgment shall give quietus to the ordeal of respondents which unfortunately has lasted for about twenty years and the present appeal hanging fire for the last about sixteen years.
2. This appeal has been directed against judgment dated 26.04.2008, passed by learned 1st Additional Sessions Judge, Jammu (for short, trial court) in case titled „State vs. Vivek Gupta and others‟, vide which, respondents came to be acquitted.
Factual Matrix
3. As the prosecution story would unfurl, on 12.03.2004, Police Post, Sainik Colony, Jammu received a telephonic message at 15:30 hours from PW-Mangat Ram on behalf of CEO, Udhampur that Ms. Vandana Gupta W/o Vivek Gupta 2 CRAA No. 69/2008 had passed away at her residence situate at 208 Sector-A, Sainik Colony, Jammu and her dead body had been shifted by her in-laws to their residence at Jeewan Nagar. An entry was made in the Roznamacha and inquest proceedings under Section 174 Cr.P.C came to be initiated. The dead body was sent for postmortem and on receipt of postmortem and inquest proceedings, FIR No. 21 of 2004 under Sections 302/498/34 RPC came to be registered on 13.03.2004. The investigating agency concluded that husband of the deceased, respondent-Vivek Gupta having strangulated his wife to death was liable for murder, whereas his parents, respondents No. 2 and 3 were involved in the dowry harassment caused to the deceased. As a result, the investigation culminated into the final report, in terms of Section 173 Cr.P.C., for commission of offences under Sections 302/498-A RPC against respondent No. 1 and 498-A against rest of the respondents. Respondents came to be charged, by the trial Court, for the aforesaid offences whereby they pleaded innocence and claimed trial, prompting the trial court to ask for the prosecution evidence.
Prosecution Evidence
4. A brief resume of the prosecution evidence is as below:
5. PW-1-Jia Lal is father of the deceased. He has deposed that his daughter was married to respondent No.1 on 15.02.2002 and he had given sufficient dowry and a car to the accused as per his capacity. Though deceased did not tell him anything, but he found his daughter in distress and frail within 5 to 6 months of her marriage. On 13.05.2003, deceased visited her elder sister Ms. Ranjana Gupta and informed her that her in-laws were inimical towards her for bringing insufficient dowry. This fact was not revealed to him by the deceased. Deceased came to her parental home in June and demanded Rs.15,000/- for a new motor 3 CRAA No. 69/2008 cycle, which he immediately provided. The witness goes on to state that when deceased and her husband-respondent No. 1 shifted to their new house at Sainik Colony, he visited their house on 12.08.2003, brought the couple to his house and gave Rs. 10,000/- to his daughter which was demanded by her. It is further alleged by the witness that respondent No. 1/accused also demanded a Santro Car and share in a plot situate at Bantalab. He received telephonic message from accused/respondent Puran Chand (now dead) on 12.03.2004 who asked him to visit Jeewan Nagar as some dispute had arisen between the deceased and her husband. Meanwhile, he received a call from some lady that his daughter had been murdered. He rang one Nutan Gupta, PA to Education Minister, not to allow last rites of his daughter, till he reached Jammu. On the asking of the said PA, a message was faxed to SSP and SHO, Satwari. On his way to Jammu, he received another telephonic message that his daughter was hospitalized in unconscious condition. When deceased could not traced in SMGS Hospital, he visited Police Station, where he came to know that his daughter had been murdered in Sainik Colony and her dead body had been shifted to Jeewan Nagar. He had seen injury marks on the forehead, right shoulder and back side of the neck of the deceased and he also noticed marks of rope. A Board of Doctors came to be constituted by the Medical Superintendent on the telephonic instructions of the Education Minister. He has admitted the report, EXPW-JL, receipt of dead body EXPW-JL/1 and clothes EXPW-JL/2. In cross examination, he has stated that couple had shifted to Sainik Colony after separation from parents of respondent No. 1 on 12.03.2003 and he went to their house on the same day. He has denied the suggestion that deceased wanted to live separately. He has admitted that respondent No.1/accused never demanded dowry prior to the marriage. He had very good relations with the respondents/accused No. 2 and 4 CRAA No. 69/2008
3. He had sent a maid to the house of the deceased who remained there till 12 August, 2004 but this fact was not stated to the police. The said maid was also harassed by the accused. He reached Jeewan Nagar by 4/5 pm. The deceased had informed him many a times about her being subjected to physical torture at the hands of the accused. This fact, however, is not mentioned in his statement under Section 161 Cr.P.C. He did not notice whether a mark of rope was on the front of the neck or around the neck.
6. PW-2-Lalit Kumar is uncle of the deceased. He has stated that he was informed by his brother on 12.08.2003 that deceased and her husband had separated from her parents and were residing in Sainik Colony and since they had no beddings etc., he had brought them to their house. Respondent No. 1 asked for some financial help and his brother gave him Rs. 10,000/-. Witness has also stated that in December, 2003, when deceased and her brother had visited Udhampur, in connection with some function of one of their relatives, he was informed by the deceased that her in-laws were demanding dowry and would beat her and that her mother-in-law had demanded A.C. and jewelry. He advised accused-Vivek Gupta not to harass the deceased. However, his brother told him that he will meet the demands of accused on his retirement. The witness has further stated that deceased was in Udhampur from 03.03.2004 to 09.03.2004 and revealed that she was subjected to maltreatment at the hands of her in-laws. His brother was telephonically informed that his daughter had been murdered. He along with his brother and sister-in-law went to Jeewan Nagar and then to Satwari, Police Chowki and later on the instructions of the police, they went to Jeewan Nagar. He noticed marks on the forehead, right shoulder and neck of the deceased. They were informed by the accused that deceased had committed suicide. Deceased was shifted to the hospital where postmortem was conducted 5 CRAA No. 69/2008 on the next date. He has admitted the receipt of the dead body EXPW-JW/1 and seizure memo of hair strand EXPW-LK. In cross examination, he has stated that he did not record any statement before the police. Report of harassment to the deceased was not given to the police. He informed the police about the dowry demand after one and half month after the occurrence. He did not disclose to the police with respect to the visit of the victim to Udhampur and narration of the incident there. He had noticed a mark only on the neck of the deceased.
7. PW-3-Dev Raj is family friend of father of the deceased. He has stated that deceased used to speak less after her marriage. Deceased along with her husband was staying in Sainik Colony from August, 2003 and she informed that she was subjected to dowry harassment at the hands of accused person. Deceased also told that she was scolded by her in-laws that her father, despite being an officer, could find a job. Father of the deceased had given Rs.10,000/- to accused Vivek Gupta on 20th December when deceased and her husband visited Udhampur. The deceased disclosed in his presence that she was subject to harassment by the accused persons and accused-Vivek had demanded a Car and her in-laws demanded a plot at Bantalab in which her father had a share. Father of the deceased agreed to meet all the demands after his retirement. Deceased was murdered on 12.03.2004. He noticed marks on the forehead, and bruise on the neck of the deceased. He has admitted seizure memo of jewelry EXPW-DR. In cross examination, he has stated that it is not recorded in her statement under Section 161 Cr.P.C. that deceased was harassed and was beaten by accused though he informed the police. It is not recorded in his statement under Section 161 Cr.P.C. that accused Vivek demanded a Car and a plot.
8. PW-4-Adarsh Kumar is brother of the deceased. He has deposed that in June, 2003, he was informed by the deceased that she was being harassed by 6 CRAA No. 69/2008 accused. His father gave Rs. 15,000/- to respondent/accused No. 1 for his second hand motor cycle. In August, his father brought deceased and her husband- accused Vivek to Udhampur and gave Rs. 10,000/- to accused-Vivek as he had demanded the same. In August, he sent Rs. 15,000/- to the deceased which he had demanded on phone. In December, he was told by the victim at Udhampur that accused had an eye on the plot situate at Bantalab and was demanding a Santro Car. On 12th March, 2003 deceased was killed. He had noticed marks on the neck and face of the victim. In cross examination, he has stated that it is not mentioned in his statement under Section 161 Cr.P.C., that deceased asked for money on telephone and he gave Rs. 15,000/-.
9. PW-5-Sushma Gupta is mother of the deceased. She has deposed that her daughter was married to respondent No.1 on 15.02.2008, who killed her daughter because he used to say that her father, despite being high ranking official, had not given enough dowry. The deceased had revealed about the dowry demand of accused to her elder daughter Ranjana. Accused used to demand dowry and accused-Vivek threatened to remarry. In June, the deceased came to her house and got Rs.15,000/- for motor cycle which was demanded by respondent No. 1. Respondent No. 1 and deceased were turned out by the parents of respondent No.1 and they were brought to Udhampur on 12.08.2003 and they asked them to stay with them. Respondent No. 1 demanded Rs.10,000/- to run household and it was paid to him. On 7th December, couple came to Udhampur, where deceased informed them that her husband was demanding a Santro Car and a Plot at Bantalab in which his father-in-law had a share and also threatened that if demand was not met he would murder his wife and contract second marriage, however, he was assured that his demand will be met on the retirement of the father of the deceased. She had noticed mark of rope on the front side of neck 7 CRAA No. 69/2008 and a bruise on right of the forehead of the deceased. They were informed by a lady about the death of the deceased and accused were making preparations for last rites of the deceased. She has admitted the seizure memo of jewelry of the deceased EXPW-DR. In cross examination, she has stated that co-accused were not present, when amounts of Rs.10,000/- and Rs. 15,000/- were demanded and given to respondent no. 1. She has stated that it was only mentioned in her statement under Section 161 Cr.P.C. that all the accused had made dowry demand, but it was only accused/respondent No. 1, who raised the dowry demand. She has admitted that it is not recorded in her statement under Section 161 Cr.P.C. that accused had threatened to kill the deceased and contract second marriage or that accused used to harass the deceased. She has also admitted that episode of 12.08.2003 regarding amount of Rs.10,000/- paid to the accused or the demand of Santro Car and demand of the accused for a plot or that the accused would kill the deceased and contract second marriage was not recorded by her before the Police or that later said details were provided to the police. She has admitted that accused did not make any demand prior to marriage. She did not notice any mark on the back of neck of the deceased. She also did not record before the police that accused were making preparations for the cremation of the deceased.
10. PW-6-Sukhdev Singh has stated that he had heard that victim was ill and was taken to the hospital. He is witness to seizure memos EXPW-SS and EXPW- SS/1 but denied the contents. He was neither declared hostile by the prosecution nor anything incriminating is extracted in his cross examination.
11. PW-7-Abdul Hamid was SHO in Police Station, Satwari on 12.04/2004. He has stated that he received a telephonic information that dead body of a female was kept at Jeewan Nagar by the husband and in-laws of the deceased and 8 CRAA No. 69/2008 he went to Jeewan Nagar. After he came to know that dead body had been brought from Sainik Colony, he flashed a message to PP Sainik Colony. He noticed injuries on the right and left side of the neck of the deceased. In cross examination, he has stated that he had received phone call between 1:30 pm to 2:00 pm and made an entry in the Roznamcha.
12. PW-8-Ranjana Mahajan is sister of the deceased. She has stated that she was told by the deceased within a week of her marriage that her husband/respondent No.1 was not a good person, but she advised the deceased to keep patience. She had noticed marks on the cheeks of deceased on 13.05.2008, when victim had come to Udhampur and informed that respondent no. 1 had beaten her. Respondent No. 1 and his mother used to demand dowry and a motor cycle. Her father paid Rs. 15,000/- to respondent No. 1. The couple started living separately from parents of respondent No.1. Respondent No.1 again demanded Rs. 10,000/- from her father, which was given to him. Respondent No.1 then demanded Rs. 15,000/- from her brother, which was also given to him. She came to Jammu on the death of her sister and noticed marks on her forehead and neck. Her sister could not commit suicide. In cross examination, she has stated that deceased revealed her story that in June 2003 for the first time. Only husband of the deceased/respondent No. 1 demanded a motor cycle. Injury mark seen by her on the cheek of the deceased was stated to the police but same is not mentioned in her police statement. Accused did not demand Rs.10,000/- in Udhampur. Respondent No. 1 demanded Rs. 15,000/- in the presence of family members of the deceased. Parents of respondent No. 1 (respondents No. 2 and 3) never made any dowry demand in her presence.
13. PW-9-Vijay Kumar is a friend of father of the deceased. He has stated that he is a neighbourer of PW-Jia Lal and that he went to the house of Jia Lal in 9 CRAA No. 69/2008 the month of August, 2003 where it was revealed by the deceased that her in- laws had complained as to why her father does not find any employment for her and that her mother-in-law told her that her parents had not given enough gold and A.C. On 20th December, 2003, he, Dev Raj Gupta, Harbans Lal, father and elder brother of the deceased had assembled where father of the deceased asked them to make accused Vivek understand as he had already been given Rs. 15,000/- for a motor cycle and another Rs. 15,000/- were given to him by his son and now respondent-Vivek was demanding a Santro Car and a plot. He tried to make accused-Vivek understand. On 12.03.2004, he came to know about the death of the deceased and came to Jammu. In cross examination, he has admitted that though he made a similar statement to the police, however it is not recorded in his statement under section 161 Cr.P.C. that in-laws of the deceased used to harass her and demand dowry, nor factum of any money given to accused Vivek is recorded in his police statement. The witness has also stated that neither any money was given to the accused nor accused had ever beaten the victim in his presence. Witness has also stated that accused has a sound financial position and did not make any dowry demand at the time of marriage. He goes on to state that though respondent/accused demanded a Santro Car and a plot in his presence but he does not know, why it has not been recorded by the police in his statement under Section 161 Cr.P.C.
14. PW-10-Mangat Ram has stated that on 12.03.2004 he received a telephonic message from PW-Jia Lal at around 02:00 pm, who asked him to send a message to SSP, Jammu and SHO Satwari that her daughter had been murdered and she may not be cremated. He telephonically informed SHO, Police Station, Satwari and was informed that matter pertains to Sainik Colony. Therefore, he informed the SHO concerned. At 03:15 pm, he received a message that victim 10 CRAA No. 69/2008 was serious and had been evacuated to the hospital. In cross examination, he has stated that he had flashed a fax massage at 2:30 pm but it is not in the court file.
15. PW-11-Anil Kumar Sarin has admitted his signatures on the seizure of the dead body but denied its contents. He has been declared hostile and nothing incriminating could be extracted in his cross examination.
16. PW-12 Surinder Kumar has also admitted his signatures on the seizure memo of the dead body of the deceased which is marked as SK.
17. PW13-Din Maini is a practicing Ayurvedic private doctor in Jeewan Nagar. He has stated that accused-Puran Chand had brought his daughter-in-law (deceased) to him at 2:00 pm and he had declared her dead. Puran Chand was all alone and deceased was brought from Sainik Colony. The relation between the accused and deceased were cordial and he had not received any compliant about the dowry demand.
18. PW-14-Madan Lal has only heard that wife of respondent No. 1 had committed suicide.
19. PW-15-Vinay Kumar has only stated that he had seen accused-Puran Chand driving his Maruti vehicle at 9:00 am and was informed that he was going to Sainik Colony and then he saw him back at 2:30 pm from Sainik Colony.
20. PW-16-Ram Pal, who has a shop at Sainik Colony near the house of respondent no. 1/accused, has turned hostile and nothing incriminating could be elicited in the cross examination.
21. PW-17-Karam Chand is a witness to the seizure memo of a table EXPW- SS.
22. PW-18-Thakur Dass is Principal of School where respondent No. 3- accused/Raj Kumari was working on 26.03.2004. He has stated that she was granted second half day leave on the said day.
11 CRAA No. 69/2008
23. PW-19-Reena Khajuria has only stated that accused-Raj Kumari was with her in the school till 12:30 pm.
24. PW-20-Surjeet Singh has reflected his ignorance about the death of the deceased.
25. PW-21-Anju Gupta, PW-22-Neelam Saraf and PW-27 Indu Bala have toed the statements of PW-18 Thakur Dass and PW-19 Reena Khajuria.
26. PW-23-Lal Jee has reflected his ignorance about the occurrence. He has been declared hostile and nothing incriminating could be extracted by the prosecution in his cross examination.
27. PW-24-Dr. Subash Chander has conducted autopsy on the dead body of the deceased. He has stated that on 13.03.2004, he was posted in the department of Pathology, GMC, Jammu. He received a letter from Head of Institution Dr. H. L Goswami (Principal) GMC Jammu and was advised to attend Medical Board to conduct autopsy. The other members of the board were Dr. Sheikh Anayat, HOD, Forensic Medicine, Dr. Suresh Saraf, Lecturer, Department of Surgery and Dr. Raj Kumar, Lecturer, Department of Medicine. He has stated that on 13.03.2004 they conducted autopsy and furnished report No. 131/04. In cross examination, he has stated that pathology is the subject which deals with diseases and is meant for diagnosing the diseases. Post mortem is generally conducted by Forensic experts. From the finding of the autopsy, Board was of the opinion that it was a homicidal hanging causing thereby the death. Ligature mark is an important feature in differentiating suicidal or homicidal death. What are the signs of ligature, on the basis of which, he could say that this was homicidal death, could be better answered by Forensic Expert. The witness was unable to point out that on what basis he had said that it is a homicidal death.
28. PW-25-Ghulam Rasool (Patwari) has proved the site plan EXPW-GR. 12 CRAA No. 69/2008
29. PW-26 Ghulam Nabi (Tehsildar) has proved the re-sealing of packets EXPW-GN.
30. PW-28-S. K. Razdan is one of the members of the Board of Doctors. He has stated that three sealed bottles containing viscera of one Vandhana Mahajan w/o Vivek Mahajan were received on 26th of March 2004 in FSL, Jammu which were forwarded by Dr. Anayat Ullah Sheikh Department of Forensic Medicine, Jammu, vide his Post Mortem No. 131/04 dt. 13th of March 04. The description of the contents of the bottles is given in the certificate itself. These contents were subjected to various chemical and chromatographic tests, which did not reveal the presence of any poisonous substance in the Exhibits R-34/04 and R-36/04. However, R-36/04 is the preservative sample and hence opinion bearing our Report No.356/ FSL dt. 7th of April 2004 was furnished by him. He has admitted the report EXPW-S.K.
31. PW-29-H.C. Bhagat, Dy. Director (FSL) is the scientific expert. He stated that on 25th March 2004, he received four sealed packets having mark E, F, G, I through H.C Shankar Lal No.1800/J of PP, Sanik Colony in the physics section in connection with case FIR No. 21/04 u/s 302/498-A/34 RPC P/S Channi Himmat. Five photographs of sole print were received from Photo Section of FSL, Jammu on 6th of April 2004. One cloth packet marked „C‟ in the open condition was received from Biology/Serology Section on 7 th of April 2004. The packets were forwarded for examination vide letter No.2511/SDEC-J dt. 24.3.04. by SDPO City (E). The sealed cloth packet marked „E' was found sealed with nine intact seals, out of which, four impressions tallied with specimen seal, forwarded by Naib Tehsildar Executive Magistrate 1st Class, Jammu. On opening, it was found to contain one pair of lady chappal. The left foot chappal was marked as Ewxhibit P- 13 CRAA No. 69/2008 30/04 and right foot chappal was marked as Exhibit P-31/04. The sealed cloth packet marked 'F was found sealed with 12 intact seals, out of which only 5 seals tallied with the specimen seal. On opening, it was found to contain a pair of shoes bearing Trade Mark „Lee Cooper size 44. The left foot shoe was marked as Exhibit P-32/04 and right foot shoe was marked as Exhibit P-33/04. Sealed cloth packet marked „G' was sealed with 13 intact seals, out of which only six impressions tallied with the specimen seals. On opening, it was found to contain a pair of shoes, bearing Trade Mark Windsor Liberty. The left foot show was marked as exhibit P-34/04 and right foot show was marked as exhibit P-35/04. The sealed cloth packet marked 'H" was found sealed with seven intact seals, out of which only three impressions tallied. On opening, it was found to contain one plier (SUPER), which was marked as Exhibit P-36/04. Five photographs of sole print recorded from the top of table were received from Photo Section of FSL, Jammu for comparison which were marked as Exhibit P-37/04, P-38/04, P- 39/04, P-40/04 and P-41/04 but the packet marked 'C‟ received from B/S Section of FSL, Jammu was found to contain one plastic rope measuring 40‟‟ in length of dark grey colour was marked as Exhibit P42/04. He stated that all the packet were subjected to physical examination and were individually compared with photographs of the sole print marked as P-37/04 to 41/04. Tests cuts were made on the plastic rope with the plier marked P-36/04 and compared with two cut ends of the rope and the following opinion was formed:
"a. The partial impression recorded in the photograph marked Exhibit P-37/04 could be from the sole impression of the right foot shoe marked P-33/04.
b. The plier marked P-336/04 has not been used in cutting the rope markedP42/04."14 CRAA No. 69/2008
He has stated that no other opinion could be formed with regard to the photograph marked P-38/04. The report bears his seal and signatures and marked as EXPW-H.C.
32. PW 30 Rajesh Kumar Patwari has proved the site plan EXPW-RK.
33. PW-31 Shiban Lal Bhat is Scientific Officer (Finger Print) FSL Jammu. He has stated that on 10.04.2004, a letter by Dy. Superintendent of Police SDPO, City East, Jammu in case FIR No. 21/04 u/s No. 2471/SDEC-J, dt. 23.03.2004 and 2511/SDEC-J dt. 24.03.2004 was given to him through H.Ct. Shankar Lal No. 1800J of P/P, Sainik Colony, Jammu.
A. Description of Exhibits:-
i) One brown coloured ceiling fan attached with three blades of 1200 mm size, labeled with "Khaitan Magnate". The said fan was found to be completely covered with a layer of dust, alleged to bear Finger Prints.
ii) The specimen finger print slip of the deceased Lady namely Vandana Gupta w/o Vivek Gupta r/o Jeevan Nagar at present H. No. 208, Sector-A Sainik Colony, Jammu prepared by I.C, P/P, Sainik Colony on 13.03.2004 during postmorterm.
iii) The specimen finger print search slip of the suspected person namely Vivek Gupta s/o Sh. Puran Chand Gupta R/o H.No. 161 Jeevan Nagar near Digiana Jammu.
iv) The specimen finger print search slip of the suspected person namely Puran Chand S/O Rama Rakh Mal r/o 161/1 Jeevan Nagar Opposite Industrial Estate, Jammu.
B. Details of Exhibits & Lab. Markings:-
1. The brown Coloured dusty ceiling Khaitan magnate Fan attached with three blades alleged to bear Finger Prints was subjected to thorough search under oblique and Polyray lights for presence of any Finger Print. Two partial finger impressions were found present. One of the impressions was found on the edge of the blade and the other on the edge of the body of the Fan. These were marked as Q1 & Q2 respectively by me in the laboratory. The questioned finger impression marked Q1 & Q2 were got photographed for record and preparation enlargements were further marked as Q1/1 and Q2/1 respectively by me.
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2. The specimen finger print search slip of Vivek Gupta s/o Sh. Puran Chand Gupta were marked S1 and S 12 by me in the laboratory.
3. The specimen finger print search slip of Puran Chand S/o Sh. Ram Rakh Mal were marked S 13 to S 24 by me in the laboratory.
4. The specimen finger pint search slip of the deceased lady Vandana Gupta were marked as S 25 to S 50 by me in the laboratory. Results of Examination:
I have thoroughly examined/compared the questioned finger impressions marked Q1/1 & Q2/1 with the specimen finger impressions marked S1 to S50 and found that
i) The questioned Partial finger impression marked Q1/1 is different from the specimen finger prints marked S1 to S12, S13 to S24 and S25.
ii) The Questioned partial finger impression marked Q1/1 could not be compared with the specimen finger impression of deceased Vandana Gupta marked S26 to S50 due to the reason that specimen finger impressions are sufficiently smudged. Hence no opinion is possible.
iii) The Questioned finger impression marked Q2/1 reveals some fragments or ridges with limited ridge characteristics. Hence non opinion can be given on it.
On cross examination, he has stated that as per his report, there were no finger prints of accused-Vivek on the ceiling fan. The finger prints on the ceiling fan could not be conclusively compared with finger prints of deceased because of technical problem as specimen impressions were sufficiently smudged impressions and do not reveal sufficient rich characteristics for comparison. He has admitted his signatures on the report EXDPW-S.L
34. PW-32 Mool Raj is the Scientific Officer, FSL Jammu. He has stated that four scaled packets were received by him on 25.3.2004 in the office through Head constable Shanker Singh No. 1800/J forwarded by Dy. SP. City, Jammu vide his letter no. 2511/SDEC-J dated 24.03.2004 in connection with case FIR no. 21/2004 under Section 302/498-N34 RPC Police Station Channi Himmat Jammu. Packets marked as A, B, C and D sealed with 4, 9 11 and 4 in tact seals 16 CRAA No. 69/2008 respectively. Out of which only 2, 4, 5 and 2 seals tallied with specimen seal impression forwarded by the Magistrate would found to contain hair stands more than hundred in numbers, out of which only 100 hair strands were taken and marked B-138/04 to B-237/04, a stained lady green salwar, unstained green lady shirt and bra which were marked as B-238/04 to B-240/0 unstained grey colour rope which was marked B-240/04 and hair strands which were marked B-242/04 to B-249/04. After studying these hair strands in original condition, these were subjected to microscopical examination for the determination of their origin and comparison. The opinion arrived by the witness is as under:
"The Hair strands marked B-138/04 to B-237/04 and B-242/04 to B-249/04 were Human head hair and showed similarity. The report on the file bearing no.387/FSL dated 26.4.04 bears my signature and seal and marked as EXP-ML."
On cross-examination, he has stated that on none of the packets all the seals were intact. He has only compared the hair strands. The hair strands which were examined by him were Human Head Hair. He does not know identity of the person to whom these hair belong. By writing similarity he mean to say that the colour and characteristics features of the hairs are similar. He cannot say whether hair of different people can also be similar. Neither he has given any opinion with regard to the nature of death of the person, whose hair were sent to him nor he could have given. From the hair given to him it was not possible for him to give any opinion as to whether death was because of strangulation, asphyxia or any other means. He has stated that he has not checked the rope microscopically for the presence of hair strands.
35. PW-33-Dr. Suleman Choudhary is also one of the members of the Board of Doctors, who conducted autopsy on the dead body of the deceased. He has stated that on 13.3.2004, he was posted as consultant surgery in GMC, Jammu 17 CRAA No. 69/2008 and post mortem on the dead body of Vandana Mahajan wife of Vivek Mahajan age approximately 27 years resident of H. No. 161, Jeewan Nagar, Jammu at present Sainik Coloney, Sector.-A, Jammu identified by Jia Lal son of Wali Ram father and Lalit Kumar uncle was conducted by Board of Doctors which was constituted by Principal GMC, Jammu vide order no. JMC/PS/PM/671-76 dated 13.3.2006 on the request of SDPO Sainik Coloney, Mr. Rajeshwar in which he was one of the members. During post mortem they observed as under:
"1. Length of the body five feet; 2.signs of decomposition nil; 3 rigor mortis all over the body; eyes normal, ears lobule blue nostril-alae bluish, anus and vulva-normal."
External and internal injuries;
1. 1cm wide ligature mark prominently seen over the front of the neck half cm above the thyroid prominence transversely placed in front and on the left side upto 3 cm, extending upward, backwards towards the nape of the neck not limited from above by the mandible (one cm. below) faintly present over the nape, extending interiorly along the right side of the neck two cm below the lower border of mandible, again prominently seen over the right lateral aspect of the neck upto the mid line with an upwards slip mark of the ligature extending from the mid line to the angle of the mandible underlying muscle not bruised neck bone not fractured interrupted on the lateral aspect not circular and no impression of knot seen.
2. Scalp on reflection was bruised over the lateral parietal region over the area of one inch length no external and internal injury.
3. Healed infraumbilical mid line caesarean scar (operated) copper T inserted in UT cavity. No other injury external or internal seen.
The viscera preserved and sent for chemical analysis and also for histopathology examination of heart and section of lungs (to rule out toxicological and pathological condition) through the IO. The case being investigated under sec. 176 of Cr.P.C. The exact cause of the death reserved 18 CRAA No. 69/2008 till the reports are made available by the IO. The post mortem report placed on the file is signed by him as member of the Board, which is correct and already exhibited as EXPWSC. On 17.4.2004 IO brought the HP report and FSL report. In their final opinion, in view of the post mortem findings, histopathology and forensic reports, death in this case was due to asphyxia caused by ligature strangulation. Again the report was signed by all the members of the Board on 17.4.2004.
36. PW-34-Tilak Raj is the photographer who has taken photograph of the place of occurrence.
37. PW-35-Dr. Anayat Ullah Sheikh is also one of the members of the Board of Doctors, who conducted autopsy on the dead body of the deceased. He has stated that on 13.3.2004 at 11.45 am, he along with other members of the Board of Doctors including Dr. Suleman Chowdhary, Dr. Raj Kumar and Dr. Subash Bharadwaj conducted the autopsy on the body of Vandana Mahajan wife of Vivek Mahajan aged about 27 yrs resident of 161, Jeewan Nagar, Jammu. After conducting the autopsy the post mortem report was written and signed by him exhibited as EXPWSC. In cross examination, he states that the ligature mark on the neck is circular or transverse and the pressure mark by the knot of the ligature is also present in typical cases of strangulation by ligature. It is right to say that in case of hanging the ligature mark on the neck is not usually round or transverse and the pressure mark by the knot is never seen in cases of hanging due to formation of loop from the point of suspension. In this case the mark of the knot on the backside was not seen. The ligature in this case was transverse not round and not limited from above by the lower border of mandible. 19 CRAA No. 69/2008
38. PW-36-Kuldeep Raj is the investigating officer. He has stated that he received a telephonic information from one Mangat Ram working in the office of CEO, Udhampur that Ms Vandana Gupta had died under suspicious circumstances and her last rites will not be performed till arrival of her parents. Proceedings, in terms of section 174 Cr.P.C., were initiated and he sent the police personnel to Sainik Colony to take care of the site of occurrence and he himself went to Jeewan Nagar. He has deposed about the formalities conducted by him during investigation including preparation of seizure memo of dead body EXPW- KR, site plan of recovery of dead body EXPW-KR-1, seizure of articles from place of occurrence and sending same to FSL and getting the postmortem of the deceased done. He has stated that FIR No. 21 of 2004 came to be registered in the Police Station. Complainant had stated that deceased had been killed. He also recorded statement of witnesses, got finger prints and sent the same to FSL. It was concluded by him that case against respondent No. 1/accused-Vivek Gupta was made out under section 302 RPC whereas offence under section 498-A RPC was made out against rest of respondents/accused. In cross examination, he has stated that he was not aware as to who was scribe of the FIR. He goes on to state that FIR was forwarded to the court on 15.03.2004 at 11:08 am and he has failed to explain as to why it was not delivered earlier. He was informed about the incident by Mangat Ram posted in CEO Office and next day he went to the spot. The place of occurrence was not seized, though police officials were deployed there. He noticed mark of rope on neck, which pointed towards the death of the deceased by hanging. He did not find any proof of scuffle on the spot. There were shops underneath and near the house, but no one reported of any cries emanating from the house. FIR was registered on the basis of application made by PW-Jia Lal.
20 CRAA No. 69/2008
39. After the prosecution evidence, the respondent/accused were examined in terms of Section 342 Cr.P.C., whereby they denied the incriminating evidence ascribed to them in the testimonies of the prosecution witnesses and did not choose to produce any evidence in defence.
Trial Court Findings
40. Learned trial court, having analyzed and marshalled the prosecution evidence, in detail has come to the conclusion that prosecution has neither succeeded to prove the charge of murder against respondent No. 1 nor charge of dowry harassment under Section 498-A RPC against respondents No. 2 and 3 beyond reasonable shadow of doubt. Having critically analyzed the scientific evidence produced by the prosecution during the trial, learned trial court is of the view that statements of the doctors, who were members of the Board of Doctors and conducted autopsy on the dead body of the deceased, were contradictory in nature, on the basis of which no definite conclusion could be drawn, whether it was a case of homicidal strangulation or suicidal hanging. Similarly, having analyzed the statements of the forensic experts, learned trial court has concluded that since finger prints of accused were not found on the objects seized by the investigating agency during trial and the technical issues prevented conclusive comparison of finger prints, therefore, this vital piece of evidence and aspect of the case has also gone against the prosecution.
41. Appellant has questioned the impugned judgment inter alia on the grounds that learned trial court has failed to appreciate the prosecution evidence in its true and correct perspective. According to the appellant, the circumstances corroborated by the medical evidence and the Forensic evidence are sufficient proof of involvement of respondent No. 1 for killing his wife and the ocular 21 CRAA No. 69/2008 evidence is sufficient to prove that deceased was subjected to dowry harassment at the hands of accused persons.
42. Heard and perused the record.
43. Before a closer look at the ground urged in the memo of appeal, it shall be profitable to briefly recall an overview of the prosecution case, though at the cost of brevity.
44. On 12.03.2004, Police Post, Sainik Colony received a telephonic information at around 15:30 hours from PW-Mangat Ram that Ms Vandana Gupta wife of respondent No. 1 had passed away at her residence in Sainik Colony, Jammu and her dead body had been shifted by her in-laws to their residence at Jeewan Nagar. During investigation, the investigating agency, besides other formalities, got autopsy of the dead body conducted through a Board of Doctors, who certified that death, in the present case, was due to asphyxia caused by ligature strangulation. On the basis of this autopsy report rendered by the Board of Doctors, coupled with the fact that dead body of the deceased after the occurrence was shifted by her in-laws from Sainik Colony to their house at Jeewan Nagar, the investigating agency has concluded that deceased-Vandana Gupta was strangulated to death by none other than her husband-respondent No.1/accused-Vivek Gupta and that she was subject to dowry harassment during her life time by all the accused persons. As a consequence, respondent No. 1 has been charged for the commission of offence under Section 302 RPC and respondents No. 2 and 3 have been charged for the alleged commission of offence under Section 498-A RPC. In this view of the matter, prosecution case has been divided into two parts and prosecution has adduced two sets of evidence to establish the guilt of respondents. 22 CRAA No. 69/2008 (A) Charge of murder against respondent no.1.
45. Allegation against respondent No. 1, i.e. husband of the deceased, is that he along with his parents i.e. respondents No. 2 and 3, harassed the deceased during her life time by demanding dowry and ultimately strangulated her to death. Admittedly, there is no direct evidence adduced by the prosecution and the entire case of the prosecution hinges on the circumstantial evidence, in particular, the scientific evidence.
Circumstantial Evidence
46. It is now well settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no confusion other than one of guilt of accused. The circumstances cannot be on any other hypothesis. It is also well settled that suspicion, however grave may be, cannot be a substitute for a proof and court shall take utmost precaution in finding an accused guilty only on the basis of circumstantial evidence.
47. The legal position as to how such matters should be examined has been expounded by Hon‟ble Supreme Court in Nizam & Anr. v. State of Rajasthan; reported as AIR 2015 SC 3430, relevant excerpt whereof reads thus:
"Case of the prosecution is entirely based on the circumstantial evidence. In a case based on substantial evidence, settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete, forming a chain and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his evidence. The principle of circumstantial evidence has been reiterated by this Court in a plethora of cases. In Bodhraj alias Bodha and ors. v. State of J&K, (2002) 8 SCC 45: (AIR 2002 SC 3164), wherein this Court quoted number of judgment and held as under:-
"10. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt 23 CRAA No. 69/2008 can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan, (1977) 2 SCC 99: (AIR) 1977 SC 1063), Eradu v. State of Hyderabad, AIR 1956 SC 316, Erabhadrappa v. State of Karnataka, (1983) 2 SCC 330: (AIR) 1983 SC 446), State of U.P vs. Sukhbasi, (1985) Suppl SCC 79: (AIR 1985 SC 1224), Balwinder Singh vs. State of Punjab (1987) 1 SCC 1: (AIR 1987) Sc 350) and Ashok Kumar Chatterjee v. State of M.P., 1989 Suppl (1) Scc 560: (AIR 1989 SC 1980). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v.
State of Punjab, AIR 1954 SC 621 it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt.
11. We may also make a reference to a decision of this Court in C. Chenga Reddy v. State of A.P., (1996) 10 SCC 193: (AIR 1996 SC 3390), wherein it has been observed thus: (SCC pp. 206-07, para 21)
21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence."
48. The aforesaid principle with respect to circumstantial evidence has been elaborated by the Apex Court in Varun Choudhary v. State of Rajasthan (AIR 2011 SC 72), Raj Kumar Singh v. State of Rajasthan [(2013) 5 SCC 722], 2011 (1) Crimes 319 (SC), 2014 (i), SLJ 147 (HC), (2011) 12 SCC 545 and (2014) 3 SCC 412.
49. As already stated, the appellant in this case has primarily relied upon the Medical Evidence, in particular, the autopsy report of the deceased and the Forensic evidence, in the chain of events to prove guilt of the respondents. Let us analyze one by one.
Medical Evidence
50. The prosecution at the foremost seeks to rely upon the postmortem report of the deceased. Autopsy on the dead body of the deceased in the present case is stated to have been conducted by a Board of Doctors comprised of PWs Dr. 24 CRAA No. 69/2008 Suleman Choudhary, Dr. Subash Chander Bhardwaj, Dr. Anayat Ullah Sheikh and Dr. Raj Kumar. Out of them, Dr. Raj Kumar has not been examined by the prosecution. However, if testimonies of the aforesaid three doctors are critically analyzed, it is clear that Board of Doctors has not given any conclusive finding regarding homicidal death of the deceased. Final Opinion of the doctors constituting board in the present case is that as per the finding of the postmortem report, HP and FSL report, the death in this case was due to Asphyxia caused by ligature strangulation. It is the expression "ligature strangulation" which has put respondent No.1 under suspicion.
51. PW-Dr. Suleman Choudhary, Assistant Professor, has obviously confirmed the final opinion tendered by the Board during his deposition in the court i.e. the death in this case was due to Asphyxia caused by ligature strangulation. However, the witness, in his cross examination, has admitted the defence suggestion, without mincing words that Board members have not given any positive finding as to whether cause of death was homicidal strangulation or suicidal hanging. The witness goes on to clarify that ligature mark was not circular in this case and in case of a homicidal strangulation, the ligature mark has to be circular with a mark of knot on the skin also. Dr. Suleman has clearly distinguished homicidal strangulation with hanging by stating that in case of hanging, ligature mark will not be circular and circular mark was not found in the present case. Witness has also clearly stated that cause of death in the present case, being a ligature strangulation, may also mean hanging.
52. PW-Dr. Anayat Ullah Shekih has also made a deposition on the lines of PW-Dr. Suleman Choudhary. But he has further clarified that in typical cases of strangulation by ligature, a ligature mark on the neck is circular or transverse and the pressure mark by the knot of the ligature is also present. He has admitted that 25 CRAA No. 69/2008 it is right to say that in case of hanging, usually the ligature mark on the neck is not round or transverse and pressure mark by the knot is also never seen in case of hanging due to formation of loop from the point of suspension. The witness goes on to state that in the present case, the mark of the knot on the back side was not seen. He has also stated that ligature, in the present case, was transverse, not round and not limited from above by the lower border of mandible.
53. Although PW-Dr. Subash Chander, Assistant Professor, Department of Pathology, a member of the board and signatory to the postmortem report has made an attempt to bail out the prosecution by stating that it was a case of homicidal hanging, however, having fairly admitted that ligature mark is an important feature to differentiate between the suicidal and homicidal death, he seems to retract in his cross examination by admitting that signs of ligature, on the basis of which, he had said that it was a homicidal death, could be better answered by a Forensic expert and he could not say of the signs, on the basis of which, he came to conclude that it was a case of homicidal death and then he repeats that this can be answered by the forensic medical expert only. It is pertinent to mention that PW-Dr. Subash Chander is Assistant Professor in the Department of Pathology. In cross examination, he has admitted that pathology subject deals with diseases and a pathologist is meant for diagnosing the diseases. It is probably for this reason that the witness has admitted that he was not the best person to conclude whether present case was a case of homicidal death or hanging, because the discipline with which the witness is associated is not concerned with the subject, he was dealing with.
54. If the statements of three doctors, who happened to be the members of the Board who conducted autopsy on the dead body, are critically and carefully glanced over, what comes to the fore is that, in cases of strangulation, ligature 26 CRAA No. 69/2008 mark is a significant feature to determine if cause of death in a particular case is a homicidal or suicidal strangulation. What is culled out from the testimonies of the aforesaid witnesses is that in a case of homicidal strangulation or in other words, where a deceased has been strangulated to death by an accused, as alleged in the present case, the ligature mark has to be circular. However, in a case of suicidal hanging, the ligature mark will not be circular. Another important feature to distinguish homicidal strangulation from a suicidal strangulation is the pressure mark of the knot of the ligature, which, according to PW-Dr- Anayat Ullah Sheikh, is present in typical cases of strangulation by ligature. PW-Dr. Anayat Ullah Sheikh has clarified that pressure mark by the knot is never seen in cases of hanging due to formation of a loop from the point of suspension and in the present case also, the mark of a knot on the neck of the deceased was not seen.
55. In other words, in case of suicidal hanging, mark on the neck of the deceased is not circular and there is neither pressure mark nor the formation of loop because loop will suspend and will go upwards. However, in cases of homicidal strangulation, the ligature mark must be circular in nature, because unless pressure is applied, there can be no strangulation leading to the death of the victim. In view of the aforesaid analysis of the testimonies of the doctors, who formed the Board to conduct autopsy on the dead body of the deceased, we find ourselves in agreement with the observation of learned trial court that board has failed to positively conclude that case in hand was an outcome of homicidal strangulation, as alleged by the prosecution.
56. We also agree with the opinion of learned trial court that had the investigating agency taken pains to seek clarification from the Medical Board 27 CRAA No. 69/2008 regarding ligature strangulation that whether strangulation, in the present case, was homicidal or suicidal, the result would have been different.
57. Another staggering aspect of the matter, which goes against the appellant is absence of scratch mark on the neck area of the deceased. Learned trial court has rightly observed that had the deceased been strangulated by respondent No. 1, it is natural that deceased would have struggled to rid herself of the clutches of the accused and in the process, it was natural that there would have been some scratch marks or the struggle marks around her neck. The deceased would have certainly resisted her strangulation attempt.
Forensic/Scientific Evidence
58. As already stated that the prosecution besides postmortem report seeks to rely upon the Forensic evidence to establish guilt of the respondent No. 1 that it was only he, who strangulated his wife to death. Prosecution in order to sustain conviction of respondent No. 1 on this count has examined PWs S. K. Razdan, Scientific Officer, H. C. Bhagat, Deputy Director (FSL), Mool Raj Scientific Officer, Shiban Lal Bhat, Scientific Officer Finger prints.
59. PW S.K. Razdan-Scientific Officer has examined Viscera of the deceased and has admitted the certificate EXPW-SK issued by him. As per his report, no poisonous substance was detected in R-34/04 and R-35/04 and R-36/04. The report of this scientific officer rules out any possibility of foul play, alleged to have been committed by the accused.
60. PW-Mool Raj-Scientific Officer has examined wearing apparels and hair stands of the deceased. He has admitted his certificate EXPW-MR. Though he has admitted that hair stands seized in the present case were human head hair and showed similarity with the questioned hair strands marked as exhibit B-138/04 28 CRAA No. 69/2008 and B-237/04, however, he has also opined that he could not say whether hair of different people could be similar. Pertinently, Scientific officer has clearly stated that hair examined by him, in the present case, could not make him in forming any opinion as to whether death was due to strangulation or by other means. It is also pertinent to note that PW-Mool Raj, during scientific examination, has not checked the rope microscopically to determine the presence of hair stands and as per his certificate, no hair strand was found sticking with the rope. Therefore, testimony of PW-Mool Raj, Scientific Officer FSL, too does not provide any link to the prosecution to establish culpability of respondent No.1.
61. PW-H.C. Bhagat, Deputy Director, FSL, has examined a pair of lady chapple, pair of shoes with Lee Cooper trademark, pair of shoes with trademark Windsor Liberty and one plier (Super) five photographs of sole print recovered from the top of the table (received from photo section of FSL for comparison) and one plastic rope measuring 40 feet in length of dark colour, marked as P- 42/04. As per his findings, partial impression recorded in the photographs marked as P-37/04 could be from the sole impression of right foot shoe marked P-33/04 and no other opinion could be formed with regard to the rest of the photographs marked as P-38/04 and P-41/04 as, according to the witness, impression of sole print was not fit for comparison. He has also opined that plier seized in the present case has not been used in cutting of the rope. Intriguingly, there is no finding of the FSL expert regarding rope seized in the present case. Therefore findings of PW-H. C Bhagat, too, are of no consequence to the prosecution to prove its case.
62. The most vital and significant feature of scientific evidence in the present case could be finger impressions. The prosecution in this endeavour has examined PW-Shibvan Lal Bhat, Scientific Officer, Finger Prints (FSL). 29 CRAA No. 69/2008 Pertinently, a ceiling fan with three blades, with alleged finger prints, along with specimen finger print slip of deceased Vandana Gupta and specimen finger prints slip of accused-respondent No. 1-Vivek Gutpa and specimen finger prints slip of accused-Puran Chand, were sent by the Investigating agency for scientific examination. The witness has stated that questioned partial finger impressions marked as Q-1/1 (impression on edges of blade) was found different from the specimen finger prints marked S-1 to S-12 and S-13 to S-24 with respect to respondents/ accused-Vivek Gupta and Pruan Chand. The rest of the findings remained inconclusive. According to the witness, finger impression S-26 to S-50 of deceased-Vandana Gupta, were sufficiently smudged impressions and did not reveal sufficient ridge characteristics for comparison. Though witness has admitted the certificate issued by him EXPW-SL, it is clear, even from the statement of the scientific officer, finger prints of the FSL, that finger prints of accused person were not found on the ceiling fan, therefore, the last hope for the prosecution to establish the guilt of the accused-respondent No. 1 to establish his culpability to strangulate his wife has also dashed to the ground.
63. A bare perusal of the FSL reports produced by the prosecution and the witnesses examined in support thereof, would indicate that there is no link in the chain of circumstances claimed by the prosecution pointing towards the culpability of respondent No. 1 in the commission of murder of his wife. Significantly, most of the findings of the scientific officers have remained inconclusive. It appears that investigating agency has done a ritual of collecting some material from the scene of occurrence and sending it to the forensic laboratory for examination, however, there is absolutely nothing worth in the name of scientific evidence to establish guilt of respondent No. 1. 30 CRAA No. 69/2008
64. We find ourselves in an agreement with the observation of learned trial Judge that probably two circumstances could create a strong suspicion linking the accused with the commission of crime, that is, the availability of finger prints of accused on the rope or any part of the ceiling fan and finger prints of respondent No. 1 on the body of the deceased to indicate any violent mark or to establish, atleast, the presence of respondent No.1 at the scene of occurrence, because a person strangulating a victim with a rope would naturally leave impressions of his fingers on the rope and on the body of the deceased. As already noted that most of the findings of scientific officers, in the present case, have remained inconclusive. Intriguingly, the FSL experts have not examined carefully and microscopically, to determine the very presence of hair stands of the deceased. Therefore, prosecution has failed to establish the presence of accused persons at the scene of crime at the time of occurrence.
65. Be that as it may, it is the prosecution case that deceased at the relevant point of time was putting up all alone with her husband-respondent No.1 in House No. 208, Section-A, Sainik Colony. Occurrence is alleged to have taken place in the said house. As per the prosecution story, there are shops underneath the said house and the prosecution in a bid to strengthen its case has examined the shop-keepers and the neighbourers.
66. PW- Sukhdev Singh has stated that his brother has a shop near the house of accused-Vivek at Sainik Colony and he would often visit the said shop. He has stated that he does not know how victim had died and in cross examination, he has stated that relation between accused and deceased were cordial. PWs- Surinder Kumar and Mandan Lal are also from the area where occurrence is alleged to have been taken place and both the witnesses have not deposed anything incriminating against respondent No.1. PW-Madan Lal has stated that 31 CRAA No. 69/2008 he had heard that deceased had committed suicide. PW-16 Rampal, who also has a shop at Sainik Colony near the house of respondent No. 1 and PW-23 Lal Jee, a resident of Sector-A, Sainik Colony, Jammu have turned hostile. Therefore, all the independent witnesses, examined by the prosecution to prove the occurrence have not stated anything against respondent No.1. Had respondent No. 1 strangulated his wife, it must have attracted the attention of the shopkeepers underneath his house and the neighbourers.
Shifting of the Deceased from the Scene of Occurrence
67. Another circumstance relied by the prosecution to establish involvement of the respondents in the alleged occurrence, is shifting of the dead body of the deceased by respondents from the house of respondent No. 1 at Sainik Colony to the house of in-laws of the deceased at Jeewan Nagar.
68. It is the prosecution case that deceased after the occurrence was shifted by accused from Sainik Colony, where she was putting up along with her husband- respondent No. 1 to the house of her in-laws at Jeewan Nagar. It is allegation of the prosecution that accused after the commission of offence shifted dead body of the deceased from the scene of occurrence to their house at Jeewan Nagar in order to screen the offender.
69. Mr. Amit Gupta, learned AAG has argued that respondent/accused-Puran Chand, after the occurrence had taken the deceased to an Ayurvedic doctor at Jeewan Nagar instead of shifting her to some qualified doctor or to the hospital. As per the prosecution story, when accused-Puran Chand received information that something wrong had taken place in the house of his son at Sainik Colony, he took the deceased to PW-Din Maini, an Ayurvedic doctor in Jeewan Nagar at about 2:00 pm. Accused-Puran Chand had brought the deceased to a doctor to 32 CRAA No. 69/2008 confirm whether she was alive or dead and PW-Din Maini told respondent No. 2 that deceased had already passed away.
70. We do not find any unnatural conduct on the part of father-in-law, who on coming to know that his daughter-in-law was serious immediately shifted her to a nearest possible medical practitioner where some medical facility or first aid could be provided. There is nothing in the prosecution case to indicate that there was any clinic, hospital or public health centre around the place of occurrence or house of the in-laws of the deceased, where deceased could be shifted for the treatment. This conduct on the part of respondent No. 2, father-in-law of the deceased in the circumstances is rather found to be most natural and goes against the prosecution. Learned trial court has aptly observed that it is not necessary in all the cases that if the condition of a close relative of a person is serious, he should be straightway rushed to the hospital and it is quite normal that a person, who happens to be a close relation of a patient, whose condition appears to be critical, would take him or her to some doctor, who is easily available and particularly known to him.
71. Be that as it may, shifting of the deceased by accused, in the present case, from her residence at Sainik Colony to the house of her in-laws at Jeewan Nagar by itself, cannot be a sole reason to conclude that an attempt has been made on the part of the accused persons to screen the offender-respondent No.1. Even otherwise, in normal circumstances, a person, who has committed a brutal murder of his wife, would not shift the dead body from the scene of occurrence to some known place and instead an attempt would be made either to dispose of the dead body or remove the corpus where it could not be easily located in a bid to give it a colour of some accidental death or a crime committed by somebody else. In any case, a person, having committed a serious offence of murder, would 33 CRAA No. 69/2008 not shift the dead body of the deceased to a place known to everybody and invite the trouble for himself.
Ocular Evidence
72. There are some formal witnesses examined by the prosecution, which are of no help to make out a case in favour of the appellant. PW-Mangat Ram who was working in the office of PW-Jia Lal, is stated to have telephonically informed the Police Post, Sainik Colony about the death of the deceased. He has stated that he faxed a message at about 2:30 pm but same is not on the file. PW- Anil Kumar has denied the contents of the seizure memo of the dead body. PW- Karam Chand is a formal witness to the seizure memo of table EXPW-SS. PWs- Ghulam Rasool and Rajesh Kumar are revenue officers, who have proved the site plans EXPW-GR and EXPW-RK and PW-Ghulam Nabi is a witness to the re-sealing of the packets, EXPW-GN. PW-Tilak Raj is the photographer who has taken the photographs and has also stated that fan and the table had dust and there were no finger marks.
73. In addition to the above, the prosecution has also examined some witnesses, who we think are totally irrelevant. Respondent No.3- Raj Kumari at the time of occurrence was posted at Govt. Girls Higher Secondary School Shastri Nagar, Jammu. The prosecution has examined the Principal and some teachers of the said school. PW-Thakur Dass is the Principal of the School who stated that accused-Raj Kumari was in the school upto 1:00 pm. PWs-Reena Khajuria, Anju Gupta, Neelam Saraf and Indu Bala are other officials of the school and they have also stated that accused Raj Kumari was with them at about 12.30 pm to 1:00 pm on the day of occurrence. These witnesses have also stated that accused-Raj Kumari had taken second half day leave. However, it is not the prosecution case that accused Raj Kumari, in any way, was involved in the 34 CRAA No. 69/2008 murder of her daughter-in-law and it is only respondent No. 1, husband of the deceased, who is alleged to have killed his wife. Therefore, all these witnesses, being irrelevant to the charge against respondent No.1, could be discarded by the investigating agency.
74. All said and done, the statement of the Investigating Officer (IO) in the present case, in our opinion, is a vital piece of evidence which rather goes in favour of the respondents. Though Investigating Officer-PW-Kuldeep Raj has admitted the relevant documents prepared by him during the course of investigation, however, he has made a candid admission during his cross examination that he did not find any evidence on the spot to reveal that any scuffle had taken place at the place of occurrence or that there was any forced act committed upon the deceased. Investigating Officer goes on to clarify that there were shops and houses near the place of occurrence but none had reported to him that they heard any noise emanating from the house of the deceased. According to the Investigating Officer, the marks on the neck of the deceased only indicated that she had died due to hanging. Intriguingly, the Investigating Officer has not been able to conclusively state, during his deposition, in the trial court that as per his investigation, it was respondent No. 1/accused-Vivek Gupta who had strangulated his wife to the deceased.
Defective Investigation
75. Another glaring circumstance of the case is delay in forwarding copy of the FIR to the nearest Magistrate. The occurrence in the present case took place on 12.03.2004 at 15:30 hours. Investigating Officer-PW Kuldeep Raj in his cross examination has stated that FIR was forwarded to the Court on 15.03.2004 at 11.08 hours i.e. three days after the occurrence and surprisingly, he has failed to 35 CRAA No. 69/2008 offer any explanation regarding delayed sending of the copy of the FIR to the court. All what he states is that he could not say why FIR was not delivered earlier. Investigating Officer has also reflected his ignorance about the scribe of the FIR. Therefore, FIR in the present case has also remained unproved.
76. Another aspect of the casual investigation of the case is that according to the Investigating Officer, he was informed about the incident by PW-Mangat Ram and he went next day to the place of occurrence. Investigating Officer has also stated that scene of occurrence was not sealed though police officials were deployed there. Ordinarily, police agency would immediately swing into action after being informed about commission of a serious offence, rush to the place of occurrence and seal the scene of crime to preserve the evidence. Investigating Officer, in the present case, has embarked upon the investigation in a most casual and cavalier fashion.
(B) Charge Under Section 498-A RPC.
77. As ready mentioned, the prosecution has presented two sets of charges; One against respondent No.1, who is alleged to have strangulated his wife and second, against all the respondents who are alleged to have subjected the deceased to dowry harassment. Ordinarily, incidents of dowry demands and harassment of a house wife would take place within the four walls of the house of in-laws or parents of a woman. Therefore, statements/testimonies of family members of the victim would assume significance. In the present case, prosecution has examined parents, brother and sister of the deceased to prove the charge under Section 498-A RPC against the respondents.
78. PW-Jia Lal is father of the deceased. He has deposed that he noticed his daughter going frail and in distress within five to six months of marriage. He has 36 CRAA No. 69/2008 stated that victim did not reveal her ordeal to him, but she would confide in her elder sister PW Ranjana Mahajan and informed her that her in-laws were not satisfied with the amount of dowry brought by her. According to the father of the deceased, when she came to her parental house in June, she demanded an amount of Rs. 15,000/- for a new motor cycle and said amount was given to her. Witness has also stated that when her daughter and her husband shifted to their new house at Sainik Colony Jammu, he went to their house and brought the couple to his House at Jeewan Nagar and gave them Rs. 10,000/- which was demanded by the deceased for household affairs. An important aspect to be noticed in the testimony of the witness is that all these demands have been made by the deceased and neither by her husband nor his parents/co-accused.
79. PW-Jia Lal has also alleged that accused demanded a Santro Car and a share in a plot situate at Bantallab in which he had a share and in so far as allegation of dowry harassment is concerned, it is pertinent to mention that father of deceased, PW Jia Lal in his statement has clearly admitted in cross examination that accused did not demand any dowry at the time of marriage and that he had very good relations with parents in-laws of the deceased i.e. respondents 2 and 3.
80. PW-Sushma Gupta is mother of the deceased. She, like her husband has stated that deceased confided in her elder sister PW Ranjana Gupta about the dowry demands made by accused persons. She has stated that money was given to respondent No. 1 to purchase a motor cycle. Since the deceased, according to both of her parents, used to reveal about her alleged ordeal to her sister PW Ranjana, therefore, it means that no dowry demand was made by the respondents in presence of these witnesses.
37 CRAA No. 69/2008
81. PW-Sushma Gupta has also alleged that deceased had also revealed that respondent No. 1-Vivek Gupta had threatened that if demand of Santro car and a plot at Bantallah was not met he would kill his wife and contract second marriage. However, this allegation is conspicuously missing from her statement under Section 161 Cr.P.C. and further this aspect of the matter has not been stated by any other prosecution witnesses including father of the deceased-PW- Jia Lal. In fact, statement of PW-Sushma Gupta that an amount of Rs. 10,000/- was given to respondent No.1 too does not figure in her statement under Section 161 Cr.P.C. The contradictions in the statements of PW-Sushma Gupta recorded in the court and during investigation under Section 164 Cr.P.C. and her exaggerated version in the Court would only show that mother of the deceased somehow intended to frame the husband and parents in-laws of her deceased daughter in the case.
82. It also emanates from the statements of the parents of the deceased that when the couple separated from their parents and shifted to a new house at Sainik Colony Jammu, they were brought by PW-Jia Lal to his house at Jeewan Nagar and he gave Rs. 10,000/- to his daughter to run the household affairs. This, by no stretch of interpretation, means that deceased or her parents were subjected to dowry harassment. If the daughter of a person along with her husband shifts to a new house, it is but natural on the part of parents of a daughter to provide some financial assistance, particularly, if couple is not possessed of sufficient means, to run the household chores. Therefore, if PW-Jia Lal, of his own gave some amount to his daughter to run household, it does not mean that deceased or her parents were harassed to meet the demands of dowry.
83. PW-Ranjana is sister of the deceased, in whom, according to her parents, the deceased used to confide about the alleged dowry demands of the 38 CRAA No. 69/2008 respondents. Indeed PW Ranjana has deposed about the alleged demands of dowry made by the respondents, which, according to her, were also met by her parents. She has also stated that some amount was given by her brother PW- Adarsh Gupta, however, there is no such mention in her statement under Section 161 Cr.P.C.
84. PW- Adarsh Gupta is the brother of the deceased who like other family members, has also stated about giving Rs.10,000/- and Rs.15,000/- to the respondents. However, his statement that he gave Rs. 15,000/- to respondent No.1 is not found in his statement recorded under section 161 Cr.P.C. He has stated that he borrowed a sum of Rs.5,000/- from his sister PW-Ranjana to be given to respondents but this fact is not mentioned in his statement under Section 161 Cr.P.C. Therefore, in view of contradictions in the statements of brother of the deceased, made in the court and one made during investigation under section 161 Cr.P.C., his testimony too does not inspire confidence.
85. As already stated that if statements of family members of the deceased are critically analyzed, what comes to the surface is that it was deceased only who used to demand money from her father and none of them has stated that husband of the deceased, respondent No.1 or his parents, at any point of time, directly made any dowry demand to them or the amount was paid to them.
86. PW-3 Lalit Kumar and PW-Dev Raj are independent witnesses who claimed to be family friends of the parents of the deceased. They have claimed that some money was given to respondent No.1 at Udhampur. PW Latit Kumar has even gone to the extent to stating that mother-in-law of the deceased, respondent No. 3 demanded an AC and jewelry. Be it noted, that this allegation has not been made by any other prosecution witness, including parents and siblings of the deceased.
39 CRAA No. 69/2008
87. If the aforesaid statements of the parents, siblings and family friends of the family of the deceased are carefully marshalled and critically analyzed, it is evident that no demand of the dowry was made by the respondents from the parents of the deceased and it was deceased who used to ask for the monetary help. The witnesses have made a general statement that deceased was subjected to dowry harassment. However, it needs a specific mention here that PW-Jia Lal, father of the deceased has stated that accused did not demand any dowry at the time of marriage and that he had good relations with the parents in-laws of the deceased. PW-Sushma Gupta, mother of the deceased has also admitted in her cross examination that accused persons did not put forth any demand of dowry prior to the marriage. PW-Ranjana Mahajan, sister of the deceased, in which the deceased used to confide about her alleged maltreatment at the hands of the respondents has also admitted in her cross examination that respondents never demanded any dowry in her presence. The independent witnesses PW-9-Vijay Kumar has not only admitted that accused did not demand any dowry at the time of marriage but has also stated that accused have sound financial position. Therefore, if the ocular evidence, adduced by the prosecution, to prove charge of dowry harassment, under Section 498A RPC, against the respondents is carefully analyzed, it is clear that there is nothing in the prosecution evidence to prove that deceased at any point of time was subject to dowry harassment at the hands of her husband or parents in-laws. The whole conspectus of the evidence would show that some financial assistance was provided by father of the deceased and family members of the deceased to their daughter, but that by itself, does not amount to cruelty or harassment to meet the demand of dowry. The testimonies of the family members of the deceased are replete with serious contradictions and exaggerations which do not inspire confidence to sustain conviction. 40 CRAA No. 69/2008
88. Another significant aspect of the case, which cannot be lost sight off is that father of the deceased PW-Jia Lal has stated that when deceased along with her husband shifted to their new house at Sainik Colony, he had sent a maid servant to their house, who remained there till 12.08.2004. The occurrence has taken place on 12.03.2004. Mr. Sethi, learned senior counsel for respondents has rightly argued that the said maid servant could be the best witness to narrate about the kind of treatment the deceased was subjected to in the house of her in- laws. However, the said maid has neither been cited nor examined by the prosecution.
89. Another important feature of the case is serious contradictions in the testimonies of the prosecution witnesses, regarding the injuries noticed by them on the dead body of the deceased. Father of the deceased PW-Jia Lal has noticed injury marks on the forehead, right shoulder and back side of the neck of deceased with a mark of rope. PW-2 Lalit Kumar has observed marks on the forehead, right shoulder and on neck. He has not stated about any rope mark. PW
-3 Dev Raj has noticed marks on the forehead and only a bruise on the neck of the deceased. He has not mentioned about other injury marks stated by the aforesaid witnesses. PW-4 Adarsh Kumar, brother of the deceased has noticed marks on neck and face of the victim. Aforesaid witnesses have not stated about any injury mark on the face of the deceased. PW-5 Sushma Gupta, mother of the deceased has seen a mark of rope on the front side of the neck and a bruise on the right of forehead, which is also contrary to the observations of the aforesaid witnesses. PW-8 Ranjana Mahajan has observed marks on the forehead and neck only. All the prosecution witnesses, be it family members or family friends of the family of the deceased, have noticed different injury marks on the dead body of 41 CRAA No. 69/2008 the deceased and have contradicted each other on material aspects which goes to the very root of the prosecution case.
Conclusion:
90. For what has been observed and discussed above, it is manifest that prosecution has miserably failed to prove charges against the respondents beyond reasonable shadow of doubt. Neither the postmortem report nor scientific evidence leads to any inference that respondent No. 1 strangulated his wife with a rope. In the opinion of the Board of Doctors, who conducted autopsy on the dead body of the deceased, death in this case was due to asphyxia caused by ligature strangulation. However, the report is silent about the cause of death whether it was homicidal strangulation or suicidal strangulation and the Investigating agency has not taken any pains to get this important factor clarified from the Board of Doctors and rather the medical experts, constituting the Board, have made a candid admission, during their depositions in the trial court that aspect of homicidal strangulation could be better answered by the Forensic medical experts. Neither Investigating agency has made any endeavour to get answer from the Forensic experts nor Forensic evidence led by the prosecution has offered any clarification in this aspect of the matter. Shifting of the dead body of the deceased from the scene of occurrence to the house of her in-laws, by itself cannot be a circumstance to conclude that an attempt has been made to screen the offender. There is absolutely nothing in the prosecution evidence that the deceased at any point of time was subjected to dowry harassment at the hands of the respondents. It appears that respondents, in the present case, came to be charge-sheeted by the investigating agency only on the basis of postmortem report that the deceased in the present case had died due to asphyxia caused due 42 CRAA No. 69/2008 to ligature strangulation. This generalized observation made by the Board of Doctors put the respondents under suspicion, but it is settled position of law that suspicion, howsoever strong may be, cannot take place of legal proof and conviction cannot be sustained merely on the basis of surmises and conjectures.
91. The enunciation of law on this point is traceable to a series of decisions rendered by the Apex Court. Hon‟ble Supreme Court in "Umacharan Shaw & Bros. Vs. Commissioner of Income Tax", reported as 1959 37 ITR 271 SC has made the following observation :-
"20.Taking into consideration the entire circumstances of the case, we are satisfied that there was no material on which the Incometax Officer could come to the conclusion that the firm was not genuine. There are many surmises and conjectures, and the conclusion is the result of suspicion which cannot take the place of proof in these matters."
92. The aforesaid principle of law has been reiterated by Hon‟ble Supreme Court in "Padala Veera Reddy Vs. State of Andhra Pradesh and others" reported as AIR 1990 SC 79, the relevant excerpt whereof reads as under:-
"19. There are series of decisions holding that no one can be convicted on the basis of mere suspicion, however, strong it may be. Though we feel it is not necessary to re-capitulate a 11 those decisions we will refer to a few on this point."
20. This Court in Palvinder Kaur v. The State of Punjab 1953 SCR 94 has pointed out that in cases denying on circumstantial evidence courts should safeguard themselves against the danger of basing their conclusions on suspicions how so ever strong.
21. In Chandrakant Ganpat Sovitkar and Anr. v. State of Maharashtra , it has been observed:
It is well settled that no one can be convicted on the basis of mere suspicion, though strong it may be. It also cannot be disputed that when we take into account the conduct of an accused, his conduct must be looked at in its entirety".
93. Identical view has been expressed by Apex Court in "Devi Lal Vs. State of Rajasthan" reported as (2019) 19 SCC 447 in the following words:-43 CRAA No. 69/2008
"18. On an analysis of the overall fact situation in the instant case, and considering the chain of circumstantial evidence relied upon by the prosecution and noticed by the High Court in the impugned judgment, to prove the charge is visibly incomplete and incoherent to permit conviction of the appellants on the basis thereof without any trace of doubt. Though the materials on record hold some suspicion towards them, but the prosecution has failed to elevate its case from the realm of "may be true" to the plane of "must be true" as is indispensably required in law for conviction on a criminal charge. It is trite to state that in a criminal trial, suspicion, howsoever grave, cannot substitute proof."
94. Supreme Court has also made following observation in "Sharad Birdhi Chand Sarda Vs. State of Maharashtra" reported as AIR 1984 SC 1622:
"That suspicion, however great it may be, cannot take place of legal proof and that „fouler the crime higher the proof‟."
95. A bare perusal of the Forensic evidence adduced by the prosecution would show that there were no conclusive findings in favour of the prosecution. Since finger prints of the deceased could not be found on the ceiling fan or on any article or on the dead body of the deceased, therefore, investigating agency has only done a ritual of placing the certificates of forensic experts on record and the prosecution also followed the suit by examining the forensic scientific officers to prove the said certificates only. Otherwise, there is absolutely nothing in the forensic evidence to prove culpability of the respondents.
96. It is well settled proposition of law that in order to sustain a conviction of the accused, link after link must be forged so firmly in the credible testimony of the witnesses that it manacles the accused inescapably in the commission of the crime. The witnesses examined and the evidence produced must be of sterling nature that it leads to the hypothesis that it is the accused alone who is guilty of offence incompatible with his innocence. In this case, the prosecution has awfully failed to prove the guilt of the accused by unimpeachable, cogent and acceptable evidence. The prosecution evidence is thus found qualitatively and 44 CRAA No. 69/2008 quantitatively insufficient to prove the guilt of the accused beyond any pale of doubt, an essential requirement under criminal jurisprudence for recording conviction of the accused.
97. Before parting, however, this Court at the foremost sympathizes at the death of a young house-wife and her parents and siblings in her absence. It is indeed difficult for the parents and near and dears ones to endure the shock of the death of their family member. However, unfortunately, respondents, in the present case have been framed on mere suspicion, which is not permissible in law. On perusal of the prosecution evidence and the conspectus of the whole case, we have no hesitation to record that this was a case of No evidence.
98. Having regard to what has been discussed herein above, we do not find any merit in the present appeal, which calls for interference by this court. Hence the present appeal is dismissed and the impugned judgment is upheld. Record of the trial court be returned forthwith.
(RAJESH SEKHRI) (RAJNESH OSWAL)
JUDGE JUDGE
JAMMU
09.08.2024
Paramjeet
Whether the order is speaking? Yes
Whether the order is reportable? Yes