AMIRUL MULK MENGAL, J.-'Appellant Muhammad Ibrahim was tried and convicted under section 302 PPC by learned Sessions Judge Nasirabad at Dera Allahyar who was pleased to sentence him to suffer imprisonment for life and to pay a i.e of Rs. 10,000/- or in default of payment of i.e to suffer for one year. It was further ordered that if i.e was realised it should be paid to the legal heirs of deceased. Besides benefit of section 382-B Cr. P.C. Was also given to the appellant.
2. Feeling aggrieved of the said judgement Muhammad Ibrahim filed a Criminal Jail Appeal No. 12 of 1998. Whereafter he engaged Mr. Amanullah Kunrani, Advocate, who separately filed Criminal Appeal No. 14 of 1994. Since both the appeals are filed against the same judgement, hence we decide it by this common judgement.
3. Brief facts for filing of the appeal arc that the appellant was married to one Mst. Ghulam Bibi daughter of Sultan Shah. After his marriage the appellant shifted to Dera Murad Jamila. The mother of Mst. Ghulam Bibi as well as well as her sister Mst. Shah Bibi visited Dera Murad Jamila in the month of June, 1993 and stayed with her. However, on 13.6.1993 they returned to their home and informed father-in-law of the appellant that Mst. Ghulam Bibi had been severely beaten by her husband in their presence. He then received an information that his daughter Mst. Ghulam Bibi has expired and he should go and take the dead body. Sultan went to Police Station Dera Murad Jamila and lodged F.I.R. No. 46 of 1993, narrating the above facts. It was further disclosed by the first informant that when he along with his son reached Dera Murad Jamila they learnt that Mst.
Ghulam Bibi was strangulated to death by the appellant. The police started investigation and reached the spot. Accused was arrested. It is the case of the prosecution that one rope and clothes of the deceased were recovered. The dead body was taken to Civil Hospital, Bhag where the medical officer conducted post-mortem. The police also prepared site plan and recorded statements of the witnesses. After completion of investigation the case was challaned before learned Sessions Judge Nasirabad at Dera Allah Yar.
Learned Sessions Judge framed charge on 30.10.1993 to which the appellant PLEADED NOT GUILTY.
4. In order to bring home the charge the prosecution examined P.W.1 Sultan, P.W. 2 Mst. Jamul, P.W.
3 Dr. Abdul Sattar, Medical Officer of Civil Hospital, Bhag. P.W.4 Talib Hussain Constable and P.W. 5 Muhammad Iqbal SIP and I.O.
5. The trial court also examined the accused under section 342 Cr.P.C, but he did not opt to be examined under section 340 (2) Cr.P.C.
6. On the basis of evidence so brought on record the learned trial court was pleased to pass the judgement convicting the appellant. Hence this appeal.
7. We have heard Mr. Kamran Murta 7.a assisted by Mr Amanullah Kunrani, Advocate for the appellant and learned Additional Advocate General for the State.
The pertinent questions for determination in this case are as follows:-
(i) Whether Mst. Ghulam Bibi died an un-natural death. Whether it was a suicide or murder? If so,
(ii) Whether the accused was responsible for the murder of his wife Mst. Ghulam Bibi.
8. Before proceeding further it would be just and proper to re-assess the evidence on record. It is to be noted that there is no eye-witness in this case. P.W.1 Sultan is the first informant but admittedly he was neither present on the scene of occurrence nor in the said village. P.W.2 Mst. Jamul is the mother of deceased. She deposed that she had gone to the house of her daughter Mst. Ghulam Bibi and spent 4 nights with her in the house of accused. On the last night of her stay the accused gave Beating to Mst. Ghulam Bibi. The third witness is very material who is Dr. Abdul Sattar. He has issued the medical certificate with following observations: "On 13.6.1993 at 6.30 P.M. The dead body of Mst. Ghulam Bibi w/o Muhammad Ibrahim was brought by .S.H.O. Police Station Dera Murad Jamila to the Hospital for Post-mortem examination and report. I conducted Post-mortem of deceased Ghulam Bibi and found the following injuries on the person of deceased.
(i) A depressed mark on the neck above the thyroid cartilage encircling the neck horizontally and incompletely.
There were abrasion on the nose bridge with ecchymosis below the right eye. The right eye was red. There was mark of violence on the right temporal region.
INTERNAL EXAMINATION: No extra variation of blood seen in the sub-continuous tissues under the mark. The larynx and trachea are congested and contained no from the mucus.
Hyoid bone and cartilage trachea were not fractured. The lungs were slightly congested with no haemorrhage patches.
OPINION.
In my opinion the death was caused by making deceased unconscious by blows on the temporal region and then by applying mild compression/strangulation of neck. The case is purely homicidal.
I had issued post-mortem report to Police. I produce the post-mortem report Ex. P/B. It is same, correct and bears my signature.
The important aspect of doctor's deposition was, firstly that he did not conduct internal examination and secondly that in cross-examination he agreed to the suggestion of the defence counsel that 'it may be a case of hanging.
9. P.W.4 Talib Hussain narrates about the investigation and is witness of recovery memo of rope (Ex.P/C) and also clothes of the deceased (Ex. P/D). However according to him a goat was tied with the rope but clothes were lying in open place.
10. P.W. 5 Mohammad Iqbal was SHO and Investigating Officer. He corroborated P.W.
4. But the important piece of his statement is that Shahnawaz, the brother of the appellant accompanied police party to the place of incident. He had gone to police station on his own accord. He informed that Mst. Ghulam Bibi had committed suicide. The I.O. Did not brother to inspect the room where deceased was hanged. The Investigating Officer also did not rule out the suggestion that it might be a case of suicide.
11. Now adverting to the points for determination, it may be pointed out that deceased Ghulam Bibi did not die a natural death. According to doctor, her death was on account of applying mild compression/strangulation of neck, while deceased was made unconscious by blows on the temporal region prior to strangulation. Hereinafter version of the prosecution and defence is different. According to the prosecution, deceased was killed but defence version is that she had committed suicide.
12. As stated hereinbefore, there is no ocular evidence and the case of the prosecution rests upon the circumstantial evidence. Before embarking upon to this aspect of the case, we would like to outline the prosecution story. The deceased was wife of appellant. They were living at Dera Murad Jamila alongwith two brothers of the appellant. P.W. 2 Jamul visited them. She stayed with her for 4/5 nights. At the last night appellant gave a beating to deceased, as she had not washed stains from his clothes. Admittedly there was no enmity. There was no motive to kill the deceased on account of her loose character. Deceased was allowed after every 4/5 months to visit her parents.
But when Jamul (deceased's mother) left and reached her house, she learnt that her daughter was dead.
13. The appellant's counsel in view of the aforementioned circumstances and evidence emphatically urged that no conviction order could be passed against the appellant, It was contended that from the very initial stage the case of the appellant was that his wife Mst. Ghulam Bibi committed suicide. He further contended that there was no motive to kill the deceased. The spouses were living a very happy life. Learned counsel challenged the statement of P.W.1 Sultan and submitted that he intentionally made a false statement saying that appellant did not allow deceased to visit her parents. Referring to the statement of P.W. 2 Jamul (deceased's mother) the learned counsel submitted that she candidly admitted in cross examination that appellant allowed his wife to visit her parents after every 4/5 months. So much so that the parents of the deceased also used to visit her. Nothing had been brought on record as to why appellant should kill his wife.
14. On the other had, according to the counsel, it is a clear case of suicide, as the wife of appellant had not washed his clothes, he slapped her on the right temporal region which can be terms nothing more than a natural and routine quarrel between the spouses. The counsel submitted that it was the brother of appellant who was living in the said house who had informed the parents of the deceased that she was dead. On basis of such information F.I.R, was lodged. So much so that the SHO who was investigating the case admitted in cross-examination that Shahnawaz the brother of appellant had gone to the police station on his own accord to inform the police. The appellant who was the husband of the deceased took her dead body but did not bury it. This shows that he had no bad intentions nor he had made any attempt to conceal the facts.
15. On the other had learned Additional A.G. While supporting the conviction and sentence of the appellant raised a disapproving argument. According to him the deceased was a young lady of about 21 years of age and could not have been hanged single handedly. Referring to the fact that two young brothers of appellant were also living with him in the said house, learned Additional A.G.
Contended that the deceased might have been killed by all the three brothers. This argument apparently has been raised in order to take the present case out of the ambit of suicide.
16. We have given our anxious consideration to the arguments so advanced. The most relevant evidence in this case is the statement of P.W. 3 Dr. Abdul Sattar. At the very outset it may be pointed out that the doctor in cross- examination admitted very frankly that it was the first case of strangulation which was examined by him. Be that as it may, we have to carefully scrutinise the statement of the doctor as it is very important for the decision of the present case. In his opinion death was caused by making deceased unconscious by blow on the temporal region and then applied compression/strangulation by neck. It was purely homicidal.
17. Before assessing the evidentiary value of testimony of doctor we would like to briefly state the opinion of Modi in cases of hanging, whether the hanging was suicidal, homicidal or accidental.
According to Modi's observation during a period of six years he examined 32 cases of hanging and found 30 as suicidal. Only one was suspended after murder and there was presumption regarding homicidal regarding the other. It was opined by Modi that circumstantial evidence has an important bearing in cases of hanging.
18. As far as homicidal hanging is concerned, according to Modi, usually more than one person are combined in the act, unless the victim is a child, or very week and feeble, or is rendered unconscious by some intoxicating or narcotic drug. Likewise in a case where resistance has been offered, marks of violence on the body and marks of a struggle or footprints of several persons at or near the place of the occurrence are likely to be found.
19. Adjudging the facts of the present case in the light of the above observations, we have already stated that the case of the prosecution was that the appellant was responsible for hanging of the deceased because being his wife no one else was supposed to do the act in the house. Perhaps this was the suspicion of the investigating officer which persuaded him to recover the rope from the place of incident. But as far as opinion of doctor is concerned it gives a different picture.
According to the doctor the deceased was first made unconscious by inflicting of blows on the temporal region then the deceased has been subjected to mild compression/strangulation by neck.
20. From minute perusal of the evidence on record it becomes crystal clear that the doctor has referred to the injuries inflicted by accused to the deceased in presence of his mother-in law, a night before the incident. According to P.W.2 the appellant gave fist blows to his wife in her presence, as a result of which blood started oozing from her nose and her eye lids were red. These blows corresponds to the blows mentioned by the doctor .Apart from the depressed mark seen by the doctor on the neck of the deceased, the doctor noted that her right eye was red and there was mark of violence on the right temporal region. These were most probably the same injuries which were inflicted upon the deceased in presence of her mother. Apart from these injuries no other injury has been found on the dead body. In the circumstances the opinion of the doctor that the deceased was made unconscious by blow or violence becomes very doubtful.
21. Since the doctor has not examined the abdomen material of the deceased hence question of poisoning her does not arise. Thus there is no evidence which could prove the opinion of the doctor that the deceased was firstly beaten to the extent that she lost her consciousness and then by some compression and strangulation of the neck she died. The doctor has not stated a single word or sentence that he found bruises of fingers on the neck of the deceased. In absence of any such finding we are not inclined to believe that the deceased was killed by strangulation.
22. As against this version the case of the defence becomes very plausible that deceased committed suicide by hanging. It has come on record that she was beaten in presence of her mother by her husband as she has not washed clothes despite his instructions, she might have felt that she was disgraced and there is all probability that she committed suicide. The other circumstantial evidence also lend support to this view inasmuch as the appellant's brother Shahnawaz informed the parents of the deceased and appellant himself took her dead body to Bhag where the house of the deceased's parents is situated. Shahnawaz then went to the police station. The dead body was neither buried hurriedly in order to conceal the factum of her death nor any act was committed by the appellant or his brothers which could be terms as doubtful or mala fide.
23. If we examine this aspect coupled with the opinion of the investigating officer as well as P.W.3 Dr. Abdul Sattar then again we find that the case was not a case of strangulation but of hanging, In cross-examination the doctor accepted the suggestion that it may be a case of hanging and P.W.
5 investigating officer also agreed to the suggestion that present case might be of suicide.
24. Another important question would arise at this juncture is whether the deceased was hanged by the appellant, thus hanging was homicidal or that she committed suicide. According to Modi's jurisprudence it is usually more than one person combined in the act in case the victim is a young man or woman. Only a child or a very week or feeble person can be hanged singly. It is not the case of prosecution that the two brothers of the deceased were also involved in the commission of the offence as argued by learned Additional Advocate General. It was not possible in the circumstances for the appellant alone to hang the deceased who was a young lady of 21 years and there was no evidence that she was a weak or feeble woman. In absence of this fact it is very difficult for us to believe that the appellant was responsible for hanging the deceased particularly so when the deceased could in the ordinary course resist and in that case the doctor should have found scratches, abrasions etc. On her body.
25. Yet another question which is most relevant in this respect would be that if at all it was a case of hanging then who was responsible for it. P.W.1, and P.W. 2 both parents of the deceased have stated that appellant was not living alone in his house but his two brothers were also living with him. In the circumstances it would be very difficult to hold the appellant responsible for the act.
26. From the above discussion and assessment of the evidence we have come to the conclusion that this case is full of doubts. A young woman of 21 years of age could not be hanged single handedly by the appellant particularly so when on medical examination no marks of violence were found. The case of the prosecution is not that the deceased was administered any narcotic or poison before hanging. Thus giving benefit of doubt to the appellant, we hereby set aside the impugned judgement passed by learned Sessions Judge Nasirabad at Dera Allahyar dated 23.12.1993, as a result of which the appellant Muhammad Ibrahim stands acquitted of the charge.
He shall be released forthwith if not required in any other case.