A division bench of the Justice Sanjay Kumar Mishra and Alok Kumar Verma of Uttarakhand HC set aside the conviction order of Additional sessions judge on ground of lack of case being proved by the prosecution and also held the Additonal Session Judge approach erroneous by coming to the conclusion that strangulation is always homicidal and suicide can be resorted to hanging.
Facts:
The case of the prosecution, in short, is that the appellant was married to the daughter of the complainant on 07.04.2011. On 10.05.2011 the complainant received information that his daughter has died and he came to the village of the appellant. He has stated that at the time of marriage there was a demand for a motorcycle and for that the deceased was subjected to cruelty and harassment.
On 10.05.2011 complainant received information that his daughter has been killed because of demand for dowry and they have buried the dead body in the burial ground. He was also informed by his relatives that they had seen injuries on the neck and face of the deceased, namely, Irum.
The relatives of the complainant tried to stop the appellant from burying her but they did not obey their advice and therefore the complainant presented a written report before the S.H.O. Ranipur, District Haridwar. On the basis of the F.I.R., the investigating officer took out the investigation of the case which was registered under Section 302 and 201 of the I.P.C. In course of investigation, he exhumed the dead body of the deceased, held inquest on the same, and then, sent the body for post-mortem examination, and after receiving the report of post-mortem examination and examination of witnesses, he submitted charge sheet against the appellant. In order to prove its case neither the Investigating Officer nor the doctor was examined on behalf of the prosecution as it is stated in the impugned judgment that for the necessity of formal proof of the post-mortem report as well as the charge sheet was waived by defence.
Observations of the Court:
The court observed that non-examination of investigating officer is tself, a ground to allow the appeal as it is apparent from the record that all the six witnesses, who have been examined by the prosecution, have turned hostile to it, and even the prosecution has not proved that those witnesses have, in fact, in their statements recorded under Section 161 of the Code, have implicated the appellant in commission of the crime. The prosecution has utterly failed to prove that even at the stage of investigation, the appellant was implicated by the witness.
Moreover, non-examination of the doctor is also fatal in this case as the doctor has stated in the postmortem examination report that the death of the deceased was ‘Asphyxia’ due to ante mortem strangulation, but at the same time, he found ligature marks on the neck of the deceased. Thus, there has to be a finding whether the Asphyxia was caused by strangulation or by ante-mortem hanging.
The learned Additional Sessions Judge has come to the conclusion, by taking into consideration the observations made by the Modi in his book Medical Jurisprudence, that strangulation is always homicidal and suicide can be resorted to hanging. In our considered opinion, this approach adopted by the learned Sessions Judge was erroneous.
Decision:
The court in view of the above observations was of the opinion that the judgment of conviction as well the order of sentence passed by the learned Additional Sessions Judge, against the appellant, cannot be upheld. Hence the appeal is allowed. The impugned conviction and the sentence awarded to the appellant are hereby set aside. The appellant Inam is not found guilty of the offence under Section 302 and 201 of IPC and he is, accordingly, acquitted of the said charges.
Case: Inam vs State of Uttarakhand
Citation: Criminal Appeal No. 249 of 2013
Coram: Justice Sanjay Kumar Mishra and Alok Kumar Verma
Dated: 09.11.2022
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