Jammu & Kashmir High Court
Jagdish Raj vs State Of J And K on 3 February, 2017
Bench: Mohammad Yaqoob Mir, B.S. Walia
1
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
Cr. Appeal No.50/2009
c/w
Confirm. No.16/2009
Date of Decision:-03 .02.2017
Jagdish Raj Vs State
Coram:-
Hon'ble Mr. Justice Mohammad Yaqoob Mir, Judge.
Hon'ble Mr. Justice B.S. Walia, Judge.
Appearing Counsel:
For the Appellant(s): Mr. R P Sharma, Advocate.
For the Respondent(s): Mr. Raghu Mehta, AAG.
1. Whether approved for reporting in Press/ Media : Optional.
2. Whether approved for reporting in Law/Journal/Digest: Yes.
Per-Yaqoob,J.
1. Appellant vide judgment impugned dated 18.08.2009 has been convicted for having committed murder punishable under Section 302 RPC. After hearing on quantum vide order dated 19.08.2009 has been sentenced to undergo imprisonment for life and fine of Rs.2,000/-.
2. The learned trial court has submitted the proceedings of the case for confirmation of the sentence as required in terms of Section 374 CrPC. Same stand registered as Confirmation No.16/2009.
3. Registration of the case as Crime No.34/1998 P/S Nowshera Rajouri on completion of investigation has culminated in filing the Charge sheet (Challan) before the Court of Judicial Magistrate First Class (Sub Judge) 2 Nowshera on 23.06.1998 for commission of offence punishable under Section 306 RPC. Learned Magistrate on the same date committed the case to the Court of Sessions Judge Rajouri.
4. Learned Sessions Judge vide order dated 24.07.1998 framed the charge against the accused for commission of offence punishable under Section 306 RPC to which accused pleaded not guilty, as such prosecution was asked to lead evidence in support of the case. Out of the listed 13 PWs, from 24.07.1998 to 02.08.2002, 10 witnesses were produced and examined. Prosecution evidence was closed by the trial court vide its order dated 02.08.2002.
5. After hearing the learned PP as well as counsel for the defence in terms of Section 273 CrPC on 14.09.2002, it was opined by the learned trial court that accused is required to enter upon the defence. So was asked to produce the witnesses in defence. On the next date, i.e. 11.10.2002 as was fixed, counsel for the accused made a statement that witnesses in defence are not required. Case was finally heard on 12.12.2002 and reserved for judgment.
6. On 30.05.2003, learned trial court recorded that the trial has been completed and final arguments have been heard. One of the prosecution witnesses Dr. Swatantar Singh, Assistant Surgeon, SDH, Nowshera, who had conducted the post-mortem on the dead body of the deceased on 18.05.1998 has stated that one of the 3 injuries found on the person of the deceased at the time of post mortem by the Doctor was "A well defined ligature mark, slightly depressed over the neck, just below the level of thyroid cartilage, encircling the neck completely and horizontally. The margins of the mark are having abrasions. Ligature mark is half inch in width."
7. The opinion of the doctor as recorded in the post mortem report EXPW-SS/1 was reiterated by him in his statement so as to show that the cause of death was "Asphyxia and Venous congestion as a result of ligature around the neck".
8. Learned trial court observed that the post mortem report in itself did not indicate that the death of the deceased was suicidal. Further noticed that doctor in his statement as witness has made it clear that the said injury could most probably be caused by strangulation and the strangulation can only be homicidal or accidental. Learned trial court considering the nature of post mortem report and after reading the prosecution evidence felt that the evidence of the police officers/officials connected with the investigation of the case is essential for the just decision of the case. Prosecution has not produced the said witnesses i.e. PW 11 and 12 when they are required to be examined in light of the points raised, invoking the powers under Section 540 Code of Criminal Procedure summoned PWs 11 and 4 12 who had investigated the case. PW12 was produced and examined whereas whereabouts of the PW 11 could not be traced when for the long time till 31.03.2004 his presence could not be secured. Learned trial court in its order dated 31.03.2004 recorded that despite all efforts presence of the PW-11 could not be secured, as such cannot be again summoned.
9. As reflected in order dated 30.03.2009 by the trial court, that pursuant to the order of the High Court dated 05.03.2009, the case had been withdrawn from the file of learned Sessions Judge Rajouri and transferred to the court of Additional Sessions Judge Rajouri.
10. Learned Additional Sessions Judge during the course of final hearing vide its order dated 20.04.2009 has opined that the deceased appeared to have been murdered. As such parties have been put on notice as to why charge under section 306 RPC be not altered to Section 302 RPC or in alternative same to be added. After further hearing prosecution as well as counsel for the defence, learned trial court (Court of Additional Sessions Judge) vide order dated 01.05.2009 opined as under"
"I am prima facie of the view that charge under Section 306 RPC needs to be altered into charge of culpable homicide amounting to murder under Section 302 RPC. Charge has been read over and explained to the accused who denied the same. Since accused now has been charged for more heinous offence, he shall be taken into custody. In view of the commission of offence u/s 302 RPC, trial has to be conducted de novo. Learned PP seeks opportunity to produce evidence in support of charge. Put up on 15.05.2009."5
11. On 15.05.2009, PP made a submission that the evidence already produced may be read and he will not produce any further evidence. Prosecution evidence was accordingly closed. On 19.05.2009, the accused was examined under Section 342 CrPC. In terms of Section 273 CrPC after hearing PP and defence, learned trial court has asked the accused to enter upon the defence. The opportunity was availed. The accused in defence produced two witnesses namely Alam Din and Ashok Kumar and also filed an application for summoning the prosecution witnesses (Dr. Swatantar Singh) for cross examination. It was allowed, PW doctor was produced and cross examined by the defence counsel.
12 The judgment impugned recording conviction under Section 302 RPC and the order awarding sentence of life imprisonment and fine of Rs. 2,000/- is contended to be unwarranted and illegal because in absence of cross- examination of the prosecution witnesses in reference to altered charge, the trial is vitiated.
13. The first plank of the argument as advanced by the counsel for the appellant is that when a charge is altered, it was incumbent upon the prosecution to recall the witnesses and to examine them with reference to alteration. Elaborating the submissions, submitted that on conclusion of trial, the case was being finally heard. During the trial, the focus of the defence while cross examining the prosecution witnesses was in reference to the offence punishable under Section 306 RPC, not to altered offence punishable under Section 302 RPC. With 6 the alteration or addition of the charge, the prosecutor was bound to recall the prosecution witnesses, which he has not to the prejudice of the accused. Trial as such is vitiated. Therefore judgment is liable to be set aside and the accused entitled to acquittal. In support of this submission placed reliance on the judgment rendered by the Hon'ble Apex Court in the case of R RACHAIAH vs. Home Secretary, Banglore reported in 2016 AIR (SC) 2447.
14. In the reported judgment, against the accused charge was framed for the commission of offence punishable under Sections 306 and 364 read with Section 34 IPC. 26 witnesses were examined thereafter under Section 216 of the Code of Criminal Procedure (Central Code) which correspond to Sections 227 to 230 of the State Code of Criminal Procedure, for framing additional charge i.e. under Section 302 IPC, the objections raised by the accused therein before the trial court was rejected and the trial court framed alternative charge under Section 302 IPC read with Section 34 IPC. At that time, 26 witnesses had been examined, thereafter only one more witness PW-27 therein was examined. Accused were also examined in terms of Section 313 of the Centre Code (which correspond to Section 342 of the State Code). All the accused were convicted in respect of alternative charge under Section 302 IPC and also for commission of offence punishable under Section 364 IPC. Appeal filed in the high court was dismissed.
715. Hon'ble Supreme Court while referring to Section 216 & 217 of the Code of Criminal Procedure has ruled as under:
"The bare reading of Section 216 reveals that though it is permissible for any Court to alter or add to any charge at any time before judgment is pronounced, certain safeguards, looking into the interest of the accused person who is charged with the additional charge or with the alteration of the additional charge, are also provided specifically under sub-section (3) and 4 of Section 216 of the Code. Sub-section (3), in no uncertain term, stipulates that with the alteration or addition to a charge if any prejudice is going to be caused to the accused in his defence or the prosecutor in the conduct of the case, the Court has to proceed with the trial as if it altered or added the original charge by terming the additional or alternative charge as original charge. The clear message is that it is to be treated as charge made for the first time and trial has to proceed from that stage. This position become further clear from the bare reading of sub- section (4) of section 216 of the Code which empowers the Court, in such a situation, to either direct a new trial or adjourn the trial for such period as may be necessary. A new trial is insisted if the charge is altogether different and distinct. "
16. Para 8 of the Judgment is relevant to be quoted:
"8. Even if the charge may be of same species, the provision for adjourning the trial is made to give sufficient opportunity to the accused to prepare and defend himself. It is, in the same process, Section 217 of the Code provides that whenever a charge is altered or added by the Court after the commencement of the trial, the prosecutor as well as the accused shall be allowed to recall or re-summon or examine any witnesses who have already been examined with reference to such alteration or addition. In such circumstance, the Court is to even allow any further witness which the Court thinks to be material in regard to the altered or additional charge.
17. In para 9 of the judgment, it has been observed as under:
8"Obviously, when the appellants are charged with an offence under Section 306, i.e. abetting the suicide, the focus as well as stress in the cross-examination shall be on that charge alone. At the fag end of the trial, the charge is altered with "Alternative Charge"
with the framing of the charge under Section 302 IPC. This gives altogether a different complexion and dimension to the prosecution case."
18. Paras-10,11 and 12 are advantageous to be quoted:
"10. Now, the charge against the appellants was that they have committed murder of Dr. Shivkumar. In a case like this, addition and/or substitution of such a charge was bound to create prejudice to the appellants. Such a charge has to be treated as original charge. In order to take care of the said prejudice, it was incumbent upon the prosecution to re-call the witnesses, examine them in the context of the charge under Section 302 of IPC and allow the accused persons to cross-examine those witnesses. Nothing of that sort has happened. As mentioned above, only one witness i.e. official witness, namely, Deva Reddi, Deputy Superintendent of Police, was examined and even he was examined on the same date i.e. 30.09.2006 when the alternative charge was framed. The case was not even adjourned as mandatorily required under Sub-Section (4) of Section 216 of the Code.
11. In a case like this, with the framing of alternative charge on 30.09.2006, testimony of those witnesses recorded prior to that date could even be taken into consideration. It hardly needs to be demonstrated that the provisions of Sections 216 and 217 are mandatory in nature as they not only sub-serve the requirement of principles of natural justice but guarantee an important right which is given to the accused persons to defend themselves appropriately by giving them full opportunity. Cross examination of the witnesses, in the process, is an important facet of this right. Credibility of any witness can be established only after the said witness is put to cross- examination by the accused person.
12. In the instant case, there is no cross-examination of these witnesses insofar as charge under Section 302 IPC is concerned. The trial, therefore, stands vitiated and there could not have been any conviction under Section 302 of the IPC."9
19. Sections 227 to 230 of the State Code of Criminal Procedure correspond to Section 216 of the Code of Criminal Procedure (Central Code) whereas Section 231 of the State Code corresponds to Section 217 of the Central Code. In the reported judgment, the procedure prescribed under Section 216 of Central Code was not followed by the trial court. In the case in hand, the trial court has followed the procedure ordering de novo trial as a result whereof fresh charge was framed. The prosecution was required to recall the witnesses and then to examine them in reference to the offence under Section 302 RPC. The accused had right to cross-examine. The trial court has afforded the opportunity to the prosecution but the prosecutor stated that the witnessed already examined are not required to be re-called, he will rely on their statement already recorded.
20. The Section 231 which corresponds to Section 217 of the Central Code mandates that the accused shall be allowed to recall or re-summon to cross-examine the witnesses with reference to such alteration or addition which has not happened. Instead what has been done is that at the request of PP, prosecution evidence has been closed and the accused has been examined under Section 342 Cr.PC, thereafter accused has been asked to enter upon the defence. In defence, accused has filed an application that he may be permitted to cross-examine the prosecution witness-doctor which has been allowed but that that can't be a substitute to the mandate of Section 231 corresponding to Section 217 of Central Code.
1021. In the reported judgment in para 10, it has been held that in order to take care of prejudice it was incumbent upon the prosecution to recall the witnesses, examine them in the context of the charge under Section 302 of the IPC and allow the accused person to cross-examine the witnesses nothing of that sort has happened except that one witness namely Deva Reddy was examined after the alternative charge was framed.
22. In the reported judgment, it has been held in Para 11 as referred to above that the provisions of Sections 216 and 217 Cr.PC, are mandatory in nature as they not only sub- serve the requirement of the principles of natural justice but guarantee an important right which is given to the accused persons to defend themselves appropriately by giving them full opportunity to cross-examine the witnesses. Para 12 of the reported judgment as quoted above provides that when there is no cross examination of the witness in so fas as charge under Section 302 is concerned. The trial, therefore, stands vitiated, and there could not have been any conviction under Section 302 IPC.
23. Once the trial court vide its order dated 01.05.2009 ordered the trial de novo, framed the charge afresh, it was incumbent upon the prosecution to produce the witnesses as were already examined and also to produce any other witnesses which would have been necessary and then it was for the accused to cross-examine them. Even though the prosecution had opted not to recall or produce any witness, still it was incumbent for the trial 11 court to ask the defence if he wanted to recall or summon all the prosecution witnesses as were examined, for cross-examination. No doubt, when the accused has been asked to enter upon the defence, he had been asked to produce the witness in defence and in the process, he had also filed an application for recall of one P.W. witness(doctor) for cross-examination which was allowed but that is not the substitute to the right guaranteed for cross-examining the prosecution witnesses who were examined in reference to the offence under Section 306 RPC when the focus of cross- examination was not in reference to Section 302 RPC (altered charge). Thus right of the accused has been infringed, and object of fair trial has been negated.
24. Section 231 Cr.PC reads as under:
"231. Recall of witnesses when charge altered:
Whenever a charge is altered or added to by the Court after the commencement of the trial, the prosecutor and the accused shall be allowed to recall or resummon, and examine with reference to such alteration or addition, any witness who may have been examined, and also to call any further witness whom the Court may think to be material."
Section 231 Cr.PC, has to be applied in a manner so as to advance the object of the fair trial. It is implicit in the words employed i.e. " the prosecutor and the accused 12 shall be allowed to recall or resummon, and examine with reference to such alteration or addition" that it is the duty of the Trial Court after ordering de novo trial, to frame fresh charge, then to direct the prosecution to produce the witness already examined for being examined in reference to the altered charge. In case the prosecution opts not to produce the witnesses by stating that it will rely on their statements already recorded, still it is the duty of the court to ask the defence if it wants any or all prosecution witnesses already examined to be recalled for cross examination in reference to altered charge. In the instant case same has not been done. Applying the principle as has been laid down by the Apex Court in the Para 12 of the relied upon judgment, the trial stands vitiated.
25. Para 13 and 14 of the referred judgment are also relevant to be quoted:
"13. Though, in the given case, it would be doubtful as to whether the appellants can now be convicted under Section 306 IPC as we, prima facie, find that the charge under Section 302 was in substitution of the earlier charge under Section 306 as both the charges cannot stand together. (See: Sangaraboina Sreenu vs. State of A.P., 1997 5 SCC 348).
14. In any case, it is not necessary to go into this aspect because of the reason that even if it is permissible for the prosecution to press the charge under Section 306 and even if it is presumed that such a charge is established, all the appellants have already suffered incarceration for more than eight years. For the same reason, we do not intend to go into the issue of conviction of these appellants under Section 364, when the charge was framed under Section 365 IPC. We, thus, reduce the sentence to the period already undergone and direct that 13 the appellants shall be released forthwith, if not required in any other case."
26. In the case on hand, the appellant accused was initially arrested on 11.05.1998, and released on bail on 11.01.1999, then with the alteration of charge was taken into custody on 01.05.2009, continues to be in the custody till date which means in two spells he has been in the custody first for seven (7) months twenty (20) days and now seven (7) years and seven (7) months, in total for more than eight (8) years. Applying the law as has been laid down, it would not be now appropriate to allow the prosecution to press the charge under Section 306 RPC.
27. Apart from the aforesaid legal position, while appreciating the entire material including the prosecution evidence as has been brought on record, charge against the accused has not been proved beyond doubt.
28. The precise factual background which has given rise to the registration of the case in fact is that appellant (accused) and his wife Dinesh Kumari (deceased) were 4 years prior to the date of occurrence married to each other. They were at their residence on 17.05.1998 at about 9.30 PM, the deceased allegedly had committed the suicide by hanging herself. On the next day, i.e. 18.05.1998,PW-1 Chuni Lal (father of the deceased) lodged a written report in P/s Nowshera to the effect that his daughter Dinesh 14 Kumari married to the accused four years back usually was coming back home and informing that she is being unnecessarily nick-named and beaten by the accused Jagdish Raj, Suresh Kumar, Jeeto Devi, Soma Devi. Further her husband is not maintaining her, many times she was turned out of house by the accused but he (Chuni Lal) used to counsel her and would send her back to her in laws house. Six months prior to the date of occurrence, Jagdish Raj(accused) had attempted to burn her by sprinkling kerosene oil on her regarding which an application was filed before the court of Sub Judge Nowshera, has further mentioned that as he has come to know that on 17.05.1998 at about 9 O'clock evening, Jagdish Chander (accused) in connivance with Suresh Kumar, Jeeto Devi, Soma Devi had beaten his daughter and she had put a rope in her neck and got killed. Jagdish Chander Raj and aforesaid persons had subjected her to torture because of which she died. Based on this written report, case was registered as FIR No.34/1998.
29. Whether incriminating material is available connecting the accused with the commission of offence, it would be quite appropriate to appreciate the entire evidence as has been led because learned trial court while recording conviction in particular focused on post-mortem report and statement of Dr. Swatantar Singh and 15 in the process ignored the defence evidence as nothing has been said about the statements of the two defence witnesses.
30. Prosecution Witnesses (precisely):
PW-1 Chuni Lal: (Father of the deceased) has stated that four years back, deceased was married to the accused, after marriage accused used to beat the deceased who used to come back and would narrate the story, many times she was sent back. Accused would give heed more to his aunt Soma Devi because he had illicit relations with her. Accused had asked him that he has only one room, if he can construct a second room so as to keep the deceased in that room, then he witness constructed the second room. Accused threw the dowry items out on the pretext that same is less, so demanded more. The deceased carried the dowry items inside the room but same were thrown out, thereafter accused sprinkled oil on her and tried to burn her but she escaped, while running away, she was intercepted by two ladies who enquired about her condition as to why she is running bare footed. Then an application was filed before the Court but then on compromise, proceedings were closed. Then after six months, accused killed the deceased, then said deceased died on 17.05.1998, then said deceased did not die of her own but accused killed her as he used to beat her. He was never on spot but some Gujjar or Bakarwal used to tell him that accused is beating the deceased. Mr. Suresh had told him that accused was 16 beating the deceased which had happened six months prior to the date of occurrence. On the date of occurrence, his (witness's nephew Kuldeep Raj) told him that some gujjar-bakarwal met him and told him that deceased is in distress condition, then he rushed to the house of the deceased. Accused and his uncle were on the Verandah. He got an impression that his daughter must be ailing inside, when he entered in, he found her lying on the ground surrounded by five to seven ladies, deceased had a burn mark on her neck and a small spot below right ear appeared to be a burn mark, on enquiry accused told him that deceased hanged herself, when he tried to burn the rope, the spot of burning occurred. On the investigation of the police, accused said that he killed the deceased, then cousin of the deceased took him to the one side and asked him police will beat him if he will not state the truth, in response accused said that he has killed the deceased. He (accused) was accompanied by other accused namely Soma Devi. There was a Brahmin person overhearing who asked the accused and his cousin to stop. Name of the Brahmin person was Sriniwas. It is only thereafter he reported the matter to police. The report bears his thumb impression, same is exhibited as EXPW-1. In his presence police seized the wearing apparels of the deceased, bangles and a ring. The contents of the seizure memo are correct. Same is exhibited as EXPW-1/3.
On cross-examination of the counsel for the defence, witness stated that he had five daughters, then 17 said four daughters. After marriage, accused and the deceased were living together separate from their family. The witness when confronted with the statement under Section 161 CrPC said that it is not recorded therein that he had asked the uncle of the accused to counsel the accused nor it is recorded their in his said statement that accused had illicit relations with Soma Devi. He has said so for the first time in the Court on the asking of his advocate, Mr. Sharma. He had told him that while making statement make mention of the same. Further stated that under Section 161 CrPC, it is not recorded that accused had asked him to construct a room for the deceased, further in the said statement, it is also not recorded that accused had while sprinkling oil attempted to burn the deceased and she ran away and two ladies met him and then he went to his daughter, then added in this regard, he had enquired from the accused why is he fighting with his wife. But same is not recorded in the statement under Section 161 CrPC. About the application which had been submitted before the Sub Judge Nowshera and the consequent compromise, those papers are not on the file. It is not in the statement under Section 161 CrPC that when he went to the house of the accused, he found dead body lying there or that there was a burn mark on the ear. It is also not recorded in the statement under Section 161 CrPC that Sriniwas had told him that the accused had killed her. He had submitted an application before the police only when Sriniwas told 18 him, then said no he had already filed an application; it is thereafter Sriniwas told him.
PW-2, Som Nath: On the possession memo of the dead body ExPW-3/1, name of the witness recorded as Som Raj S/o Sh. Bal Kirshan, when the name of the witness PW-2 is Som Nath s/o Balak Ram. Similarly, in seizure memo, ExPW-3/2, Som Raj s/o Balak Ram is recorded, in the other seizure memos regarding wearing apparel of the deceased, ExPW-1/3, name is recorded as Som Nath s/o Balak Ram and signature in Urdu language is recorded whereas in other two seizure memos, ExPW-3/1 and ExPW-3/2, signature in English language is recorded. Confronted with the same position, witness has stated that his name has been wrongly recorded on the seizure memos, where police advised him to sign, he signed. The seized articles are not shown to him in the Court.
PW-3, Prem Singh has stated that during police investigation in his presence dead body of the deceased was sent for post mortem along with one rope as was seized. The contents of the seizure memo regarding possession memo of the deceased and the rope are correct which are already exhibited as ExPW-1/3 and ExPW-1/2. On the cross examination of the counsel for the defense stated that he had not measured the rope, it must be appropriately ½ feet in length. If a rope is just four inch in length, that cannot be used for suicide. If the length of the rope in the seizure memo is shown as four 19 inch, same is incorrect. The rope as is shown in the court is the same as was seized.
PW-4, Rajinder Singh: has stated that dead body was taken from the place of occurrence and sent to Nowshera hospital for post mortem. Dead body was handed over to him against proper receipt. The contents of the receipt are correct, same is exhibited as ExPW-6/1.
PW-5, Dharam Paul stated that dead body of the Dinesh Kumari after post mortem was handed over against proper receipt which is already exhibited as ExPW-6/1.
PW-6 Mst. Shanta Devi (Mother of the deceased) has stated that deceased Dinesh Kumari was her daughter. Accused is the son-in-law, six months back accused had beaten the deceased Dinesh Kumari, at the instance of another woman (aunt of the accused) because they had something because of which accused used to tease her daughter. Whenever the daughter would come to her, she would narrate the whole story, deceased had not given birth to any child, aunt of the accused resides with her, she was not permitting the accused to work, instead she was always quarrelling with her daughter. It is the aunt of the accused who instigated the accused to kill her daughter. How accused killed her, she does not know, when she reached on spot, she found her daughter dead, on spot she found the neck of her daughter burnt. There were abrasions. On cross examination has stated 20 that whatever she stated today was stated before police, she does not know what the police has recorded.
PW-7 Durga Dass (Brother of the deceased) has stated that one year after the contract of the marriage, accused used to beat the deceased and was demanding dowry. Whenever accused would turn her out from his house, she would come weeping to his home then on sending her back, she would give something like wheat. Prior to her death, accused had sprinkled oil on her but she had run away. Based on which, case was filed in the court of Nowshera, has produced a photo-copy attested by notary regarding 488. On 17.05.1998 some man had informed him and his parents that the deceased has been killed they went on spot and found deceased in the house of the accused lying on the ground, there were certain marks on the body and marks of rod beating, there were nail scratches on the arms of the deceased. Accused had beaten the deceased to death and committed murder, accused had relations with Soma Devi. It is Soma Devi who used to get deceased beaten by the accused. Prior to the death of the deceased, he (witness) had seen accused doing some indecent acts with Mst. Soma Devi. He has asked the accused what he is doing. On the cross examination stated that accused was a tailor, his one leg was impaired. He could not put much pressure on the said leg, he (witness) cannot say how many times, during the period of four years, deceased was turned out of her house. Accused was time and again demanding dowry. In his statement under Section 161 CrPC, it is not recorded 21 that accused was beating the deceased and turning her out or for oil was sprinkled on the deceased, at the time case was submitted in the court, he was accompanying the deceased, one case was for maintenance and another for sprinkling of oil, both the cases were settled amicably. In the statement recorded by police, it is not mentioned that on the dead body of the deceased, there were black spots caused due to beating by rods or that on the arms and nails of the accused, there were blood stains. Soma Devi is the real aunt of the accused, she has two three children. Witness was not visiting to her house. In the statement under Section 161 CrPC, it is not recorded that she has seen the accused doing illicit acts with Soma Devi or that he had enquired about the same from the accused. In the police statement, it is wrongly recorded that deceased has committed suicide, fact is that deceased died due to beating by lathis.
PW-8, Dev Raj has stated that Chuni Lal (Father of the deceased) is his father-in-law, right from the date of marriage accused and his wife Dinesh Kumari had dispute because accused had illegal relations with his aunt-Soma Devi. Accused used to demand dowry. Once accused had sprinkled oil on the deceased and tried to burnt her, but she had run away, regarding which a case was presented in the court of Nowshera, thereafter same was amicably settled and deceased accordingly was sent back to her in- laws house. Father-in-law of the accused constructed a new house for the accused, on 18.04.1998, accused in a drunk condition had come to his home and started 22 beating the deceased. He (witness) came to know about the murder because neighbours of the accused informed him that the accused has killed his wife. He went on spot and found the dead body. Before he reached on spot, police had taken the dead body on a truck for being carried to hospital at Nowshera. The dead body was handed over to the in-laws and her funeral was performed there. On the cross-examination of the counsel for the accused, witness stated accused was living separate from his parents, at the time of separation, parents had given him one room, even on that his parents were quarrelling, then they means the parents of the deceased and other persons constructed a room for him but he (witness) had not spent any money for construction of the room as he was a mason, he did mason work. Adjacent to the house of the accused was the house of his brother and some four five persons. Accused had himself said in the presence of the people that he had committed murder. On his enquiry from the accused, the accused had said that deceased died due to beating. On a specific question, witness stated that police had wrongly prepared the case of suicide, in his statement made under Section 161 Cr.PC as is read out, it is not recorded that the accused had told him that he had beaten the accused to death.
PW-9 not examined.23
PW-10, Dr. Swatantar Singh, has stated that on 18.05.1998, I was posted as Assistant Surgeon SDH Nowshera. On that day, I performed autopsy on the dead body of Smt. Dinesh Kumari w/o Jagdish Raj R/o Kangrota. I found the following on the body of the deceased (1) A well defined ligature mark, slightly depressed over the neck, just below the level of thyroid cartilage, encircling the neck completely and horizontally, the margins of the mark are having abrasions, ligature mark is half inch in width, (2) An abrasion one inch by half inch on the lower border of mandible midway between angle of mandible and the chin on the left side.
(3) Contusion 2"x 2" on the Posteriomedial aspect of right elbow joint; and (4) contusion 2" x 2 1/2 " on the posteriomedial aspect of the left elbow joint. "
In my opinion, the cause of the death of the deceased is asphyxia and venous congestion as a result of ligature around the neck. The time since death is three hours to three days. In the post-mortem report, doctor has also recorded the injuries, the condition of the neck as under:
"A well defined ligature mark, slightly depressed, on the neck, just below the level of thyroid cartilage and encircling the neck completely and horizontally. The margin of the mark is having abrasions. Dissection of the neck shows extravasations of blood into the sub- cutaneous tissue."
"No ligature was seen around the neck nor was any produced by the police. "24
The injuries found on the person of the deceased were sufficient in the ordinary nature of course to cause death.
On the cross examination of the defence counsel has stated that ligature marks could have been caused by a substance like rope. At the time of Post-mortem, no rope was shown to him. Injury no.1 could most probably be caused by strangulation only, strangulation can only be homicidal or accidental. Nature of injuries differs in case of strangulation and hanging. There is difference in hanging and strangulation. Asphyxia means stoppage of breathing. There are four causes of asphyxia; strangulation, hanging, drowning and gagging. Death caused due to smoke is also called asphyxia. In scientific sense asphyxia means deficiency of oxygen. No ligature has been shown to me today. Ligature was shown to me by Police which I examined and gave a certificate. Certificate on the file is under my hand. It is correct and marked as ExPW-SS. From the position of ligature referred to in ExPW-SS, it cannot be said that death of the deceased was by hanging or suicidal. There are so many causes of depression.
On question by the Court, the witness stated that the post mortem report on the file is in his hand and is correct. It bears his signatures. It is marked as ExPW- SS/1. No further question has been put by prosecution or defence. No re-examination.
25PW-11, Nissar Hussain (... listed witness No.12) has stated that the investigation was conducted by SHO, Shri Kundan Lal Sharma, he (witness) had obtained the post- mortem report from the hospital and handed over the same to the SHO. He had measured the rope and sent the same to the Medical Officer, the letter he had sent is correct, same is exhibited as ExPW12/A, the rope as is shown is the same as was seized. Statements of the Shanti Devi, Durga Dass, Dev Raj, Dalvir was recorded under Section 161 Cr.PC which he had done after the transfer of the SHO. According to his investigation, offence under Section 306 RPC was found committed by the accused.
On the cross examination of the counsel for the accused has stated that the statements were recorded by him under Section 161 Cr.PC, the witnesses had said that they had seen deceased to have committed suicide by putting rope around her neck. He had accompanied SHO on spot and had seen the dead body and a rope lying there. In his presence, rope was seized but does not know who took the rope from the spot, regarding rope, he had requested the doctor for his opinion. On the court question stated that as per ExPW12/A, he had requested doctor to opine as to whether death could occur due to putting rope around the neck, marks on the throat of the deceased were due to rope or could be caused by any other cause, finger prints on the rope were not taken. Romesh chander, Soma Devi, Jeeto Devi were not found involved in the commission of the offence.
2631. The accused was examined in terms of Section 342 CrPC.
In defence, no witness was produced, when case was finally heard, it was noticed that there is requirement of alteration of charge, it was accordingly altered, thereafter fresh charge was framed. Prosecution had not opted to recall or re-examine any witness whereas the defence produced two witnesses in defence and also request for recall of doctor Swatantar Singh for fresh cross examination, which was done.
32. Defence Witnesses:
DW-Alam Din has stated that the accused is his neighbour, accused is a tailor and is also working as a labour, his physical condition is not good, he is polio patient, his one leg is not in working condition, he can carry 10/12 kgs not more than that, wife of the deceased died, accused at about 9.30 PM cried, on hearing so, he (witness) went there, some 15 people also went to the accused house and found that the wife of the accused was hanging, then they together brought her down and tried to administer her water but she was dead. On the cross examination of the PP stated that on the date of occurrence, he was there in the Village Kangrota, the distance between his house and the accused house is 200 meter.
DW-Ashok Kumar has stated that accused is physically unfit. His one leg is ineffective. He is working as tailor, 27 cannot carry weight, he (witness) was in his Wheat Floor Machine, five-six persons were present there, when he started taking evening meals, he heard cries, some ten to fifteen persons went to the house together where they found wife of the accused hanging, they together brought her down but found her dead, she died of hanging. Deceased was worried for not having the children. On the cross examination of the PP stated that distance between the house of the accused and of the witness is five-six feet. Before he reached the house of the deceased, she had died but she was hanging.
Further statement of doctor, Swatantar Singh, who was re-called for cross examination, on cross examination has stated that he had observed well defined ligature mark over the neck of the deceased as the mark could not be caused after death but the detail of the mark that I have mentioned in my report is only ante mortem that too of abrasions, while giving opinion they rely on Modi's Medical Jurisprudence. In Modi's Jurisprudence, ligature mark could be post-mortem, it is true that police ought to have produced the ligature at the time of post mortem, at that time, no such ligature was produced and accordingly he did mention that no ligature was produced by police. He has mentioned that her neck was titled or not, her tongue was not protruded. He has mentioned posture of the tongue, he had only recorded positive finding, abrasions and contusions were ante- mortem. During hanging usually there are no marks of violence like abrasions and contusions.28
33. This is the total evidence which has been produced by the prosecution as well as the defence. Now the question is as to whether on the strength of the evidence as produced it can be safely concluded that the accused has committed the offence. Answer has to be "No" because firstly no one has seen the actual occurrence. The important factor which is to be taken note of for judging the case on the basis of circumstantial evidence is that the chain of events must be linked in a manner which shall inspire confidence to hold that the offence has been committed by the accused. The circumstantial evidence is such which by no stretch of imagination can be said to be inspiring confidence, four important witnesses i.e. Chuni Lal (Father), Shanti Devi (Mother) and Durga Dass (Brother) and Dev Raj (Son-in-law of Chuni Lal) have deposed that the deceased was married to the accused some four years back and their relations were not good. Deceased was being beaten by the accused as the accused had illicit relations with his aunt-Soma Devi, which fact has not been proved.
Secondly, the statement of PW-1 father of the deceased coupled with the report ExPW-1 that accused Jagdish in connivance with Suresh Kumar, Jeeto Devi, Soma Devi were beating the deceased and then finally made her to commit suicide is not established at all, no evidence has come on record connecting the said persons with the commission of the offence. It appears 29 that such depositions have been made with an object of wreaking vengeance;
Thirdly, it has been stated by the said witnesses that six months prior to the occurrence, accused had sprinkled kerosene oil on the body of the deceased and tried to burn her. She had run away and was intercepted by two ladies who asked reason for running barefooted, who those ladies were is not mentioned nor they have been produced as the witnesses.
34. Statement of PW-1 as well as Durga Dass (brother of the deceased) are not worth to be believed, their credit is impeached, father of the deceased has stated that some Gujjar Backarwal informed him that his daughter has been killed whereas Durga Dass, brother of the deceased has stated that some person had informed him and his parents that the deceased had been killed, who is that some person has not been divulged, nor cited as witnesses. Further Durga Dass has stated, that deceased died due to beating by lathis (sticks), same is not supported by any other witness.
The witness Dev Raj (Son-in-law of Chuni Lal) has stated that on 18.4.1998, accused in a drunk condition had come home and killed the deceased. It is a new story because occurrence is of 17.04.1998 and not of 18.04.1998, it is not said by any witness that accused was in drunk condition. He has also stated that accused in presence of four to five persons who are his neighbours had said that he (accused) killed the deceased which too is a new story, no such neighbour has been produced as 30 witness to support the version. About the rope as had been seized, which according to witness was used for hanging or for killing is also in region of suspicion. In the seizure memo Ex PW3/2, same is shown to be four inch in length whereas the witness has stated that it was four feet in length. Length of the rope in Seizure Memo is shown as four inch, some witnesses have stated, it was one and half inch and others have said four feet, so who is to be believed.
35. Meticulous reading of the judgment impugned reveal that the trial court has in particular relied upon medical evidence which firstly is not corroborated by any other witness, secondly, the opinion of the doctor Swatantar Singh i.e. in the post mortem report, the opinion as to cause of death is recorded which is exhibited as ExPW- SS/1, same is as under:
"In my opinion, the cause of the death of the deceased is asphyxia and venous congestion as the result of ligature around the neck. The time since death is three hours to three days. In the post-mortem report, doctor has also recorded the injuries, the condition of the neck as under:
"A well defined ligature mark, slightly depressed, on the neck, just below the level of thyroid cartilage and encircling the neck completely and horizontally. The margin of the mark are having abrasions. Dissection of the neck shows extravasation of blood into the sub- cutaneous tissue."
"No ligature was seen around the neck nor was any produced by the police. "
36. The position of the case becomes more and more doubtful, when a rope is seized; why that was not produced before the doctor, there has been a lapse. The 31 witness Dr. Swatantar Singh in his cross examination has specifically stated that injury No.1 could most probably be caused by strangulation. Injury on the person of the deceased suggests a case of strangulation, not hanging. The doctor himself was not sure. He has used the word most probably, strict proof is required, Doctor has to be certain. It has been opined by the doctor that the cause of death of the deceased is asphyxia and venous congestion, as a result of ligature mark around the neck which means doctor himself has been in confusion, which confusion is further compounded by the doctor by stating that he did not mention as to whether neck was tilting or her tongue was protruding. On the basis of such shaky medical evidence which is not corroborated by other evidence, it shall be highly unsafe to record conviction.
37. The golden test laid down by the Hon'ble Apex Court for recording conviction on the basis of circumstantial evidence in the judgment reported in 2008 SC 2819, is that the circumstances from which the conclusion of the guilt is to be drawn should be in the first instance fully established and all the facts established should be consistent only with the hypothesis of guilt of the accused, the circumstances should be conclusive in nature and tendency should be such as to exclude every other hypothesis. There must be a chain of evidence so complete, not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability, the act must have been done by the accused. The prosecution 32 witnesses as have been examined have not seen the occurrence, even they are uncertain in their statements when they narrate that some backerwal, some person informed them without naming those persons, even on other facts their statements are full of embellishments, concoctions and improvements. Thus case against the accused is not proved.
38. Learned trial court has also totally ignored the defence witnesses. Nothing has been said about their depositions, their credit has not been impeached. It is settled that defence evidence has to be viewed in the background of preponderance of probabilities. When two defence witnesses in categorical terms state that they are the neigbours of the accused, on hearing cries on the date of occurrence at about 9.30 PM, they alongwith 15 persons rushed to the house of the accused and found deceased hanging, it is they who brought her down but found her dead. How the statements of these witnesses could be ignored when they are the actual natural witnesses to the position as appeared immediately after occurrence on spot.
39. In the upshot, the judgment impugned dated 18.08.2009 whereunder appellant has been convicted and the consequent order dated 18.08.2009 whereof appellant has been sentenced to life imprisonment and fine of Rs. Two thousand (Rs.2,000/-) under Section 302 RPC are set-aside, appellant is acquitted, so shall be released forthwith.
3340. Appeal allowed as above. Resultantly, reference under Section 374 Cr.PC does not survive, is accordingly answered.
(B.S. Walia) (Mohammad Yaqoob Mir)
Judge Judge
Jammu:-
03 .02.2017
*Raj Kumar*
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