- (1.) PRAFULLA C. Pant, J. This appeal, preferred under Section 374 of the Code of Criminal Procedure, 1973 (hereinafter referred as Cr. P. C.), is di rected against the judgment and order dated 16-04-1993, passed by learned Sessions Judge, Tehri Garhwal, in Ses sions trial No. 24 of 1989, whereby accused/appellants Ranvir Singh and Jaibir Singh have bee is convicted under section 302 read with Section 34 of the Indian Penal Code, 1860 (hereinafter referred as I. P. C. ). Each one of the convicts is sen tenced to imprisonment for life under Section 302 of I. P. C. Accused/appellant No. 1 Ranvir Singh is further convicted and sentenced to rigorous imprisonment for a period of three years under Sec tion 498-A of I. P. C.
(2.) HEARD learned counsel for the parties and perused the lower court record. Prosecution story, in brief, is that Smt. Sushila Devi (deceased) was mar ried to accused/appellants Ranvir Singh for some more than two years before the date of incident. In the intervening night of 22nd and 23nd of January 1989, dead body of Sushila Devi was found hanging from a branch of tree in the jungle near Village Kyari, Patti Paligarh, District Tehri Garhwal. Prosecution case is that after marriage accused/appellants Ranvir Singh used to harass his wife Sushila Devi for non fulfillment of de mand of dowry and committed mental and physical cruelty against her. Singh (RW. 6) sighted the dead body hanging from a tree and immediately informed the Village Pradhan Ami Chand (RW. 3) on 23-01 -1989. On the same day, Ami Chand made a report (Ext. A-1) to the Patti Patwari Paligarh, in which he has stated that the deceased appears to have committed suicide. [in the interior hills of Uttarakhand, certain Revenue Officials are given police pow ers, under U. P Government Notification No. 494/viii-418- 16 dated 7th March 1916]. Thereafter, on the next day, i. e. 24-01-1989, Patwari went to the spot, got the dead body brought down on the ground, prepared the inquest report (Ext. A-11 ). At the time of preparing the in quest report it was found that there were some ante mortem injuries visible on the body of the deceased, as such, it was suspected that body of the deceased might have been hanged after causing injuries to her. On that very day, Balbir Singh (RW. 4), brother of the deceased, who was also present at the time of preparation of the inquest report gave first information report (Ext. A-2) to the Patwari alleging that his sister was sub jected to cruelty for non-fulfillment of demand of dowry and she has been murdered by her husband and in-laws. On the basis of said report Padam Singh (RW. 10), Patwari of the area, registered crime No. 01 of 1989, against accused/ appellants Ranvir Singh, his brother Jaibir Singh, his father Shyam Chand and mother Jagdei, relating to offences punishable under Section 304-B, 498-A and 201 of I. P. C. and one relating to offence punishable under Section 4/6 of the Dowry Prohibition Act, 1961. He started the investigation and interro gated the witnesses. At the time of pre paring the inquest report the aforesaid Patwari also prepared sketch of the dead body (Ext. A - 12); police form No. 13 (Ext. A-13) and site plan (Ext. A-14 ). He got sent the dead body of Sushila Devi in a sealed cover for postmortem exami nation. The postmortem examination was conducted on 25-01- 1989, at 10:30 A. M. , by team of two Medical Officers, namely Dr. R. K. Pant (RW. 7) and one Dr. S. S. Rawat. They noticed some ante mortem injuries on the body and liga ture mark around the neck. The two Medical Officers gave opinion that cause of death was asphyxia due to hanging. Meanwhile, it appears that Iftikharuddin (RW. 9), who was Sub Divisional Magis trate of Tehri, also made enquiries, and recorded the statements of the accused under Section 164 of Cr. P. C. The inves tigation which was being conducted by Patwari, was transferred to Bal Krishna Badoni (P. W. 11) Naib Tehsildar, who after completing the investigation, sub mitted charge sheet (Ext. A-19) against accused Ranvir Singh, Jaibir Singh and Shyam Chand. (The blood stained clothes and articles found from the per son of dead body were sent for chemi cal examination from where report was received that it contained human blood.) Judicial Magistrate, on receipt of the charge sheet, after giving necessary copies to the accused, as required un der Section 207 of Cr. P. C. , appears to have committed the case to the court of sessions, for trial. On 05-07-1989, learned Sessions Judge, Tehri Garhwal, after hearing the parties, framed charge of offences punishable under Section 498-A and under Section 302 read with Section 34 of I. P. C. against the accused / appellants and their father Shyam Chand. Also, charge of offence punish able under Section 304-B of I. P. C. was also framed against all the three ac cused. All the accused pleaded not guilty and claimed to be tried. On this, prosecution got examined P. W. 1 Sunder Singh (declared hostile); P. W. 2 Bharat Singh (declared hostile); P. W. 3 Ami Chand (who gave the report (Ext. A-1) to the Patwari); P. W. 4 Balbir Singh (complainant and brother of the de ceased); P. W. 5 Kunwar Singh : P. W. 6 Suman Singh (who first sighted the dead body and informed the village Pradhan); P. W. 7 Dr. R. K. Pant (who conducted the postmortem examination on the dead body of Sushila Devi); PW. 8 Kamanand (declared hostile); P. W. 9 Iftikharuddin (Sub Divisional Magistrate, who re corded the statements under Section 164 of Cr. P. C. of the accused); P. W. 10 Patwari Padam Singh (who initially investigated the crime) and P. W. 11 Bal Krishna Badoni (who submitted charge sheet (Ext. A-19) against the accused. The oral and documentary evidence was put to the accused under Section 313 of Cr. P. C. , in reply to which they alleged the same to be false. It is further alleged by them that they have been implicated due to enmity. But, no evidence in de fence was adduced. After hearing the parties, the trial court found accused Ranvir Singh and Jaibir Singh guilty of charge of offences punishable under Sec tion 302 read with Section 34 of I. P. C. Accused Ranvir Singh is further found guilty of offence punishable under Sec tion 498-A of I. P. C. After hearing the parties on sentence, the trial court sen tenced convict Ranvir Singh to impris onment for life (for committing murder of Sushila Devi) and rigorous imprison ment for a period of three years (for treating his wife Sushila Devi with cru elty ). The convict Jaibir Singh was sen tenced to imprisonment for life under Section 302 read with Section 34 of I. P. C. However, Jaibir Singh was acquit ted of charge of offence punishable un der Section 498-Aof I. P. C. (Shyam Chand was acquitted of all the charges ). Aggrieved by said judgment and order dated 16-04-1993, passed by learned Sessions Judge, Tehri Garhwal, in Ses sions Trial No. 24 of 1989, this appeal was filed before the Allahabad High Court by the two convicts, on 05-05-1993, where it was admitted on 06-05-1993. The appeal is received to this Court by transfer under Section 35 of the U. P Re-organization Act, 2000 (Cen tral Act No. 29 of 2000), for its disposal.
(3.) BEFORE further discussion, it is pertinent to mention here, the ante mortem injuries found on the dead body of Sushila Devi (deceased) recorded by the team of Dr. R. K. Pant (P. W. 7) and Dr. S. S. Rawat on 25- 01-1989, who pre pared the autopsy report (Ext. A-4 ). The ante mortem injuries mentioned in the autopsy report read as under : i) Circular burn mark 0. 5 cm In diameter on forehead at midline Just below hairline, margins clearly defined, skin deep. II) Burn mark 0. 5 cm In diam eter right side of forehead, margins clearly defined, skin deep, 1 cm lateral to injury No. 1. III) Ligature mark around the neck directed obliquely up wards, following the line of mandible Interrupted at the back. Ligature mark Is 2 cms broad, superficial. Iv) On abrasion 2 x 0. 5 cm on right leg just below knee which Is vertically lying. v) One abrasion 0. 5 x 0. 5 cms on right leg 2 cms below In jury No. 4. vl) Abrasion 1 cm x 0. 5 cm on left knee. vil) One abrasion 0. 5 cm x 0. 5 cm, 1 cm below Injury No. 6 on left leg. vlll) Lacerated wound 1. 5 cm x 0. 5 cm x 0. 5 cm on left vulva vertical In direction, margin Irregular, clotted blood present In the wound and has also dripped down to both legs. Vegina clean. Ix) Tongue compressed between cleansed teeth. x) Saliva (dried) present on right angle of mouth. " The cause of death, according to the Medical Officers was asphyxia due to hanging. The above noted ante mortem in juries (particularly, injury No. 3) read with the opinion of the team of Medi cal Officers clearly proves that Sushila Devi, wife of accused / appellant Ranvir Singh has died by asphyxia due to hang ing. From the statement recorded under Section 313 of Cr. P. C. of accused / ap pellants read with statement of P. W. 4 Balbir Singh, it is clearly established on record that Sushila Devi was wife of ac cused / appellant Ranvir Singh, who got married to him about 2 1/2 years before the day of incident (date of death ). Now, this Court has to see whether, the pros ecution has been successful in proving that the accused / appellants have com mitted murder of Sushila Devi, or not ?;