Amar Singh v State of Uttarakhand
Uttarakhand High Court
28 May 2013
Cr.A. No. 187/2010
The Judgment was delivered by : Servesh Kumar Gupta, J.
1. This criminal appeal is against the judgment and order dated 25.6.2010, rendered by the Sessions Judge, Almora while adjudicating the Sessions Trial No. 41/2006, State v. Amar Singh & 2 others. The said trial proceeded for the offence of Section 302/201/498A IPC pertaining to Patwari Circle Kotsyari, Crime No. 2/2005, wherein the accused Dev Singh and Gopal Singh were set free by the court below, while the accused Amar Singh’s complicity was found proved for the offence of Section 302/201 IPC, and he was appropriately sentenced by the trial court.
2. Backdrop of the prosecution story is based upon an application of Gopal Singh, the husband of victim Smt. Vimla Devi, moved to the Gram Pradhan concerned on 7.8.2005 with the facts that his wife Smt. Vimla Devi gave birth to a baby daughter on 6.8.2005. However, Gopal Singh made the allegation that this baby was not born out of his marital relations with his wife. He further expressed his full confidence to this effect, and requested to the Gram Pradhan that an enquiry should be made from his wife Smt. Vimla Devi as to with whose physical relations, the baby has taken birth.
He further expressed his dissatisfaction upon the character of his wife and stated that he is no further inclined to keep his wife with himself. It was also stated in the said application that Smt. Vimla Devi was making an attempt to commit suicide of herself as well as of the newly born baby. He requested the Gram Pradhan to hand over the baby to the person, who established the physical relations with his wife to give birth to this child. This application, given to the Gram Pradhan, is Ex. Ka-1, pursuant whereof a Panchayat was called by the Gram Pradhan on the same i.e. on 7.8.2005. The proceedings of the Panchayat were reduced in the writing and those are Ex. Ka-2 and Ka-3 on the record bearing the signatures of erstwhile Gram Pradhan, two ex-Gram Pradhans, Gram Prahari, Smt. Vimla Devi as well as Amar Singh and few others. Amar Singh confessed his physical relations with Smt. Vimla Devi, wife of Gopal Singh, for the last several months stating that resultantly the questioned baby was born. Amar Singh accepted the said baby, born as a result of his relations with Smt. Vimla Devi. He took the responsibility of Smt. Vimla Devi and her infant baby to take care of them thenceforth. This acceptance and taking of the future responsibility of Smt. Vimla Devi was further reduced in the writing and those are Ex. Ka-4 and Ka-5 on the record.
3. The said Vimla Devi eloped from the village eversince the day of Panchayat, as stated in the FIR lodged on 13.12.2005 by Madan Singh, father of Smt. Vimla Devi. The FIR is Ex. Ka-8A. Chick report thereof is Ex. Ka-9. In this report, the allegation was also made against the husband and father-in-law of Smt. Vimla Devi, namely, Gopal Singh and Dev Singh respectively. The facts that she was entrusted in the custody of Amar Singh in Gram Panchayat, as aforestated, was also mentioned in the FIR. The investigation culminated in the submission of the chargesheet for the offence of Section 302/201 IPC against Amar Singh, and for the offence of Section 498A IPC against Dev Singh and Gopal Singh. This chargesheet is Ex. Ka-19. The charges were levelled by the learned trial court accordingly.
4. Prosecution examined PW1 Durga Singh, PW2 Dr. DS Negi, PW3 Madan Singh and PW4 Digamber Singh. Thereafter statements of the accused were recorded u/s. 313 CrPC.
5. PW1 Durga Singh, the erstwhile Gram Pradhan, has proved that Gopal Singh moved an application Ex. Ka-1 to him on 7.8.2005, as has been mentioned above by this Court. He has proved the entire contents of the application. He has also proved his signatures on Ex. Ka-1, Ka-2, Ka-3 and Ka-4 along with seal of Gram Pradhan, Village Babaliya. Thus, this witness has ratified that Smt. Vimla Devi was entrusted in the possession of Amar Singh, resident of the same village, along with her newly born baby. He has also proved another document Ex. Ka-5 bearing the signature of Smt. Vimla Devi, wherein it has been admitted by her that she had the physical relations with Amar Singh, and the said baby was born out of this relation. Durga Singh has admitted his signature along with his seal on the said document.
6. In the instant case, Smt. Vimla Devi was never seen in the village after the said Panchayat. Her dead body was allegedly recovered on 13.12.2005 at 3 pm, its recovery memo is Ex. Ka-13, which bears the signature of Durga Singh, Gram Pradhan of the village, as well as the signatures of Amar Singh, Madan Singh, father of the deceased, nay the signature of Patwari and SDM concerned. The said dead body was in almost decomposed state and was recovered in pieces from a pit covered by the mud. It was attributed to be of Smt. Vimla Devi only on the basis of the clothes, identified by Madan Singh, father of the deceased.
7. PW1 Durga Singh, in his cross- examination, has stated that after the entrustment of Smt. Vimla Devi and one day old baby daughter in the possession of Amar Singh, he had disclosed that the lady thereafter was left to reside with his sister in Delhi. So, there is no dispute that the lady Smt. Vimla Devi along with one day old daughter was entrusted in the custody of the accused Amar Singh in the presence of several persons of the village including the Gram Pradhan.
8. PW2 is Dr. DS Negi, who has conducted the post-mortem examination on the dead body. He has stated that skeleton of only one individual was sent for the post-mortem. He has also stated that this skeleton had the skull, femur bones, one tibia, four lumber bones of waist, pelvic bone of one side and sacrum bone. There was no other bone in the skeleton. Muscles and soft tissues were completely separated. Joints were completely destroyed. There was no proof of cutting, burning or breaking of the above bones. This witness has opined that reason of death could not be ascertained. He has proved the autopsy report Ex. Ka-8 disclosing the above facts.
9. PW3 is Madan Singh, father of the deceased. He has proved that dead body of Smt. Vimla Devi was recovered at the instance of Amar Singh, but could not prove that she was being victimized by her husband and father-in-law on the question of demand of dowry. So, the trial court acquitted the accused Gopal Singh and Dev Singh from the said charge.
10. PW4 is Digamber Singh, the Patwari concerned, who has submitted the chargesheet in the present case. He is a formal witness.
11. Having considered the evidence available on record, we feel that the accused Amar Singh has been implicated only on the basis of recovery of some human bones/skeleton in the presence of Pradhan and other persons of the village. That skeleton was identified to be of Smt. Vimla Devi (deceased) only on the basis of clothes found on the skeleton. Surprisingly, those clothes were neither taken in possession by the police for their examination in Forensic Laboratory nor were produced in the trial court. As such, PW3 Madan Singh, father of the deceased, did not identify those clothes at the time of his deposition and, thus, this crucial evidence is missing in the case, on the basis of which the said skeleton was alleged to be of the deceased. As such, to infer that the said skeleton was of the deceased Vimla Devi would be highly unjustified, and on the basis of this recovery of skeleton, the conviction of the accused appellant cannot be sustained.
12. Learned Deputy Advocate General (Criminal) argued that the accused Amar Singh, under his statement recorded u/s. 313 CrPC, in reply to question no. 13 thereof, has admitted his signature on the recovery memo Ex. Ka-13. This argument has no legs to stand inasmuch as prosecution has failed to prove the identity of skeleton itself and, therefore, the admission of the accused appellant that the recovery memo bears his signature is of no help to the case of prosecution. Significantly, accused has denied that any recovery was made in his presence, much less at his pointing out.
13. So, in these circumstances, it would be highly unjustified to hold the appellant Amar Singh guilty of the offence u/s. 302 IPC, as has been held by the court below. There is no evidence at all that the accused appellant committed murder of Smt. Vimla Devi.
14. Consequently, we allow the appeal and quash the conviction and sentence awarded to the appellant Amar Singh. Impugned judgment and order dated 25.6.2010, rendered by the Sessions Judge, Almora in Sessions Trial No. 41/2006 is thus set aside. Appellant Amar Singh is in jail. He shall be set free immediately if not wanted in any other case. Copy of this judgment and order along with lower court record be sent to the trial court for compliance.
15. Before parting with this appeal, it would be failure on our part if we skip to take note of the fact that entrusting a married lady, whose husband was alive, in the custody of another person by the Panchayat in the presence of erstwhile Pradhan of the village with the concurrence of other villagers, was entirely illegal and the cognizance of the same should have been taken by the administrative authorities in this regard.
Appeal allowed
