Inam vs State Of Uttarakhand
2022 Latest Caselaw 3546 UK

        IN THE HIGH COURT OF UTTARAKHAND
                   AT NAINITAL
              Criminal Appeal No. 249 of 2013

Inam                                              ......Appellant
                                   Versus


State of Uttarakhand                              ......Respondent


Present:
      Mr. Lalit Sharma, the learned Amicus Curiae.
      Mr. J.S. Virk, the learned Dy. Advocate General with Mr.
      Rakesh Kumar Joshi, the learned Brief Holder for the
      State.



        Date of hearing and judgment on: 09.11.2022



Coram:        Sri Sanjaya Kumar Mishra, J.

Sri Alok Kumar Verma, J.

Upon hearing the learned counsel for the parties, this Court made the following judgment: (Per: Sri S.K.Mishra,J.)

In this appeal the sole appellant Inam has assailed his conviction under Section 302 and 201 of the Indian Penal Code, 1860 (hereinafter referred to as the Penal Code for brevity) vide the judgment dated 24.05.2013 rendered by the 3rd Additional Sessions Judge, Haridwar in Sessions Trial No. 238 of 2011 arising out of Crime Case No. 220 of 2011, Police Station Ranipur, District Haridwar. He was sentenced for imprisonment for life for the offence under Section 302; he was further directed to undergo rigorous imprisonment of seven years for the offence under Section 201 of the IPC along with fine and default sentences on both counts.

2. 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.

3. The defence took a plea that deceased was in love with another person, namely, Nawab and she was interested to marry him; as the appellant did not allow her wishes to be carried out the deceased committed suicide.

4. In order to prove its case, the prosecution got examined 6 witnesses. PW1-Mohd. Irfan is the

complainant in this case and he is the father of the deceased. PW2 Smt. Mehtab, the mother of the deceased, PW3 Gulfam, PW4 Mehraj, PW5 Smt. Shahnaz, PW6 Jishan (all relations of the deceased). 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. No evidence was led by the defence.

5. In his examination under Section 313 Cr.P.C., the learned Additional Session Judge has only asked the appellant six questions. Question No. 1 is to the effect that the prosecution alleges that ''on 10.05.2011 at about 10.00 am the appellant committed murder of the deceased and buried her body in the burial ground". In Question No.2 the learned Additional Sessions Judge asked the appellant "that he has heard the evidence of PW1 to 6 and what he has to say about it". In Question No.3 the learned Additional Sessions Judge has further asked that "what the appellant has to state about the different exhibits like the FIR, chick FIR and GD entry etc." and the last three questions are formal questions like, why he has been charge-sheeted, if he want to lead the defence evidence, and if anything else he has to say. It is apparent from the record that the learned Sessions Judge, in a very perfunctory manner, has put questions to the appellant in his examination under Section 313 of the Code. No incriminating materials were put to him.

6. This Court is of the opinion that the non- examination of the Investigating Officer, itself, is 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 witnesses.

7. Moreover, non-examination of the doctor is also fatal in this case as the doctor has stated in the post- mortem 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. In this case on the face of the record the post-mortem examination report reveals that there was a ligature mark on the neck of the deceased. However, the doctor opined in his final opinion that there was a strangulation without

specifying the reasons for such conclusion. In that view of the matter it was the duty of the learned Sessions Judge, holding trial, to ensure that the doctor should have been examined on behalf of the prosecution to explain the difference.

8. We have also verified the lower court records and post-mortem examination which have been exhibited as Exhibit Ka-6. The said document does not reveals that there was any kind of injury on the neck of the deceased except the ligature mark. The abraded contusion i.e. injury no.2, 3 and 4 are found on the right side cheek, left forearm and right lateral thorax from 10.cm below the right axilla. Thus, it can be inferred that is no material on record to come to the definite conclusion that the death of the deceased was due to Asphyxia arising out of strangulation. Moreover, in this case the learned Additional Sessions Judge has, in an erroneous application of law, has shifted the burden on the accused to prove his case of innocence. He has taken into consideration certain statements like the evidence of PW2, who has stated that there was good relationship between him and the deceased. This statement is also given by PW4 Mehraj. However, the appellant has taken a stand that his wife was having a relationship with a person, named, Nawab and therefore the learned Additional Sessions Judge came to the conclusion that such a inculpatory statement shows that the appellant has committed the murder of the deceased. At the risk of repetition, we may reiterate here that none of the witnesses, examined on behalf of the prosecution,

supported the case of the prosecution. In a very illegal and erroneous manner, the learned Additional Sessions Judge has shifted the burden upon the appellant and has come to a conclusion that the prosecution has proved its case beyond reasonable doubt.

9. In that view of the matter, we are 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 by this Court. 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.

10. It is informed that the appellant is in custody for the last eleven years. Hence he be released forthwith if his detention is not required in any other case.

11. TCRs be sent back forthwith.

(Sanjaya Kumar Mishra, J.)

(Alok Kumar Verma, J.)

Nahid