DB acquits Advocate, set-aside death sentence

13/03/2018

Jammu, Mar 12: Division Bench of the State High Court comprising Chief Justice Badar Durrez Ahmed and Justice Sanjeev Kumar set-aside the death sentence of Subash Chander in murder of his wife and acquitted him from all the charges.
Division Bench after hearing both the sides observed that insofar as the presence of sand particles in wind pine are concerned, no definite answer can be given as to whether these were present because of forceful drowning or accidental drowning. In fact, the prosecution has not been able to elicit any information from the said Doctor as to whether the injuries were ante mortem or post-mortem.
In other words, all the injuries that are present on the body of the deceased Sunita Devi cannot, with any degree of certainty, be stated to be ante mortem or post-mortem. This being the case, it does not appear that the prosecution has been able to rule out the possibility of the death of Sunita Devi being accidental.
DB further observed that the aspect with regard to the conduct of the appellant which was sought to be highlighted by the learned counsel for the State was that he was carrying a polythene bag containing the garments of the deceased and ladies chappals belonging to the deceased when he met PW Mohinder Kumar. According to the learned counsel for the State, it appeared that the appellant was more concerned about the garments and the chappals than about saving his wife. First of all, this argument cannot be raised at all because no specific incriminating question in this regard was put to the appellant/accused. Secondly, it is quite possible that as the deceased was bathing and had left her clothes on the bank of the river and the appellant picked them up along with chappals so that when her body was found or she was alive she could be immediately draped in the clothes. This is a clear possibility and cannot be ruled out. Therefore, on examining the postmortem examination report and the injuries indicated therein and the conduct of the appellant, it cannot be said with certainty that the death of Sunita Devi was homicidal. As such, the possibility of the death being accidental cannot be ruled out. In such circumstances, all other evidence recedes into the background. Unless and until the death of Sunita Devi is established beyond reasonable doubt to be homicidal, no conviction can be based on any other piece of circumstantial evidence which does not tend to support the conclusion theory of homicide. Therefore, the benefit will have to go to the appellant insofar as the offence under Section 302 RPC is concerned. It is obvious that the question of who killed Sunita Devi would only arise if it can be established that she was in fact killed by some one.
Division Bench after hearing both the sides observed that consequently, after giving benefit of doubt to the accused on both counts, the appellant/accused is acquitted of the charges. The impugned judgment and the order on sentence are set aside. The confirmation reference is also disposed of. The appellant is present in Court and has been produced in custody. He is at liberty to leave the Court and is free to go home. JNF

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