- (1.) PRAFULLA C. Pant, J. This appeal, preferred under Section 374 (2) of the Code of Criminal Proce dure, 1973 (hereinafter referred as Cr. P. C.), is directed against the judg ment and order dated 17-02-1989, passed in Sessions trial No. 16 of 1988, whereby the then learned Sessions Judge, Tehri Garhwal, has convicted both the appellants Balwant Singh and Narain Singh under Section 302 read with Section 34 and under 498-A of the Indian Penal Code, 1860 (hereinafter referred as I. P. C.), and sentenced each one of the convicts to imprisonment for life under Section 302/ 34 and rigorous imprisonment for one year under Sec tion 498-Aof the I. P. C. , respectively.
(2.) WE heard learned counsel for the parties and perused the entire evi dence on record. Prosecution story in brief is that the accused/appellant Balwant Singh got married to Padma Devi (deceased), sister of P. W. 1, Bhagwan Singh (inform ant), in the month of December, 1985. Accused/appellant Narain Singh is fa ther of accused/appellant Balwant Singh. After marriage, Padma Devi used to live in her husband's house. On 20-06-1987, i. e. about a week before the date of incident, Padma Devi went to her brother's house in Tehri as she was unwell. After, about five days, on 25-06- 1987, accused/appellant Balwant Singh came to Tehri and took his wife forcibly back to his house. In the intervening night of 28th - 29th of June, 1987, when Padma Devi was sleeping with her son in her husband's house in village Pariya, accused/ap pellant Balwant Singh and his father accused/appellant Narain Singh stran gulated her to death. On 29-06-1987, P. W. 1, Bhagwan Singh, brother of the deceased, when working in his fields, got information about the death of his sister. He rushed to village Pariya where he found his sister dead. On being asked about the incident accused/ap pellants Balwant Singh and Narain Singh told him that Padma Devi had committed suicide. Immediately, P. W. 1, Bhagwan Singh went in search of Patwari to report the incident (In Uttaranchal hills, in certain rural areas, Revenue officers are given police pow ers ). However, Patwari was not found in his office and Bhagwan Singh (P. W. 1) went to his superior i. e. supervisory Kanongo, and gave him First Informa tion Report (Ext. A-1), on which super visory Kanongo directed Patwari Kotgi to register the crime. P. W. 3, Vijai Ram Semwal, Patwari Kotgi, received the report on the very day i. e. 29-06-1987, at about 2:00 RM. , and registered the crime and prepared the check report (Ext. A-3) of the First Information Re port. He made necessary entry in the general diary (extract of which is Ext. A-5 ). Vijai Ram Semwal (P. W. 3) Patwari proceeded from Kotgi for village Pariya and reached there on the very day, but by then it was already 8:00 P. M. There after, he took into possession the dead body of Padma Devi on 30-06-1987, at about 7:00 A. M. , and prepared the in quest report (Ext. A-6 ). The Investigat ing Officer (Patwari) also prepared the site plan (Ext. A-7 ). He also got pre pared sketch of the dead body (Ext. A-8) and sent the dead body to District Headquarter Tehri for postmortem ex amination. The next day, i. e. on 01-07-1987, accused/appellant were ar rested. On 02-07-1987, at about 2:20 P. M. , autopsy was conducted on the dead body of Padma Devi by P. W. 2, Dr. J. P. Chamoli, who prepared the post mortem examination report (Ext. A-2) and opined that Padma Devi had died of Asphyxia due to strangulation. Later on, the investigation was transferred to P. W. 4, Tota Singh Aswal, Naib Tehsildar, who recorded the statement of remaining witnesses, and on comple tion of the investigation, submitted charge sheet (Ext. A-9) before the Mag istrate, against both the accused/ap pellants. The concerned Magistrate after registering the charge sheet and after providing necessary copies, as required under Section 207 of the Cr. P. C. to the accused persons, committed the case to the court of Sessions for trial. The learned Sessions Judge, after hearing the prosecution and the defence, framed charge of two heads against both the accused/appellants Balwant Singh and Narain Singh, one for the offence punishable under Section 302 read with Section 34 of the I. P. C. and the other for the offence punishable under Section 498-A of the I. P. C. Both the accused/appellants pleaded not guilty and claimed to be tried. On this, prosecution got examined P. W. 1, Bhagwan Singh, informant and brother of the deceased; P. W. 2, Dr. J. P. Chamoli, who conducted the autopsy on the dead body and prepared post mortem examination report (Ext. A-2); P. W. 3, Vijai Ram Semwal, Patwari, who registered the crime, prepared the check report, took the dead body into posses sion and prepared the inquest report, sent the dead body for postmortem ex amination and prepared the site plan; and P. W. 4, Tota Singh Aswal, Naib Tehsildar, who completed the investiga tion and submitted the charge sheet against the accused persons. The oral as well as documentary evidence was put to the accused persons under Sec tion 313 of the Cr. P. C. , in reply to which both the accused alleged evi dence to be false. It is stated by the accused/appellants in reply to the evi dence put to them under Section 313 of the Cr. P. C. that Padma Devi commit ted suicide due to her illness. The trial court, after hearing the arguments of prosecution and that of the defence, found both accused Balwant Singh and Narain Singh guilty of the charge of offence punishable under Section 302 read with Section 34 of the I. P. C. , and that of offence punishable under Sec tion 498-A of the I. P. C. , and after hear ing both of them on sentence, sen tenced each of them to imprisonment for life under Section 302/34 of the I. P. C. , and rigorous imprisonment of one year under Section 498-A of the I. P. C. , Aggrieved by said judgment and order dated 17-02-1989, both the convicts have preferred this appeal before the Allahabad High Court in the year 1989 from where it has been received by transfer under Section 35 of the U. P. Reorganization Act, 2000, for its dis posal.
(3.) BEFORE further discussions, it is pertinent to mention here, the ante mortem injuries found by P. W. 2, Dr. J. P. Chamoli, at the time of conducting au topsy on the dead body of Padma Devi, aged 21 years, on 02-07-1987. Follow ing ante mortem injuries were recorded by the Medical Officer on the person of Padma Devi, in the postmortem report (Ext. A-2 ). i) There are marks of the rope in both the wrists all around, and both legs above ankle joint. These marks were of chocolate brown colour and oozing of the same coloured blood was present. ii) Contusion on both the legs above ankle joint, brown black colour. On dissection, same col oured blood seen. iii) Ligature mark below the thyroid cartilage, round i. e. completely encircling whole neck, base is pale, reddish and margins of it are ecchymosed. There were abrasions and ecchymosis above and below these mark. No knot mark seen. iv) Multiple billae all over back and abdomen, some are collapsed. According to the Medical Officer, who conducted the postmortem exami nation, Padma Devi died of Asphyxia due to strangulation possibly on 28th-29th of June, 1987. He also found that the injuries caused to Padma Devi were sufficient in ordinary course of nature to cause her death. From the prosecution story, it is clear that it is a case of circumstantial evidence, and there is no eye witness account of actual commission of mur der by the appellants. Now, this Court has to examine whether the chain of circumstances established by the pros ecution is such on the basis of which it can be said that the murder of the de ceased was committed by none other than the accused/appellants. The cir cumstances established are as under: i) From the ante mortem injuries quoted above, and the opinion of P. W. 2, Dr. J. P. Chamoli, as re corded in the postmortem ex amination report (Ext. A-2), it is proved on the record that the death of Padma Devi is a homi cidal death. ii) It is also not disputed by the ap pellants that deceased was wife of appellant Balwant Singh, who was married to her about P/2 years, before the date of inci dent. iii) It is established by the prosecu tion and not disputed by the de fence that homicidal death of Padma Devi has occurred in the intervening night of 28th - 29th of June, 1987, in the house of her husband i. e. Balwant Singh. iv) The presence of appellant Balwant Singh in his house on the fateful day is also established and not disputed by the defence. v) The appellants, under Section 313 of the Cr. P. C. , in reply to the prosecution evidence put to them, has stated that Padma Devi committed suicide due to her illness, but no information relating to commission of suicide by the deceased appears to have been given by the appellants to the Police/patwari having pow ers of police, or the superiors. vi) Had there been only a ligature mark with some knot on the neck of the deceased, commis sion of suicide could be said to be probable, but there is no mark of knot found by the team of two doctors, who conducted the autopsy on the dead body. vii) Apart from the ligature mark on the neck of the deceased, there are ante mortem injuries found on the wrists and the feet of the deceased of the rope, indicating complete encircling by rope of said parts.;