IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Jail Appeal No. 637 of 2001 (Old No. 380 of 1997) Om Prakash S/o Chhakki ...…………. Appellant Versus The State ...…………. Respondent Mr. Chandramauli Sah, Amicus Curiae for the appellant. Mr. M.A. Khan, Brief Holder for the respondent-State. Coram : Hon’ble Prafulla C. Pant, J. Hon’ble Dharam Veer, J. Prafulla C. Pant, J. (Oral) This appeal, preferred under Section 383 of the Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), is directed against the judgment and order dated 30.10.1995, passed in Sessions trial No. 35 of 1995, by Ist Additional Sessions Judge, Haridwar, whereby accused / appellant Om Prakash is convicted under Section 302 and Section 201 of the Indian Penal Code, 1860 (hereinafter referred as I.P.C.). The convict (appellant) is sentenced to undergo imprisonment for life under Section 302 of I.P.C. and rigorous imprisonment for a period of three years under Section 201 of I.P.C. 2 2) Heard learned counsel for the parties and perused the lower court record. 3) Prosecution story, in brief, is that accused / appellant Om Prakash belongs to Madhya Pradesh. About a week before the incident, he started living along with his wife in the house of Raj Kumar (deceased) in Kankhal, who used to run a grocery shop near Bhagirathi Ashram, across river Ganga in Kankhal, District Haridwar. On 23.10.1994, at about 5:00-6:00 P.M., accused / appellant quarreled with Raj Kumar (deceased) as to why he had molested and unclothed his wife. On this, Raj Pal (P.W. 4) and Surendra Singh (P.W. 5) who also live in the same locality pacified the two quarrelling parties. Since, on that evening Raj Pal’s cow did not come back to his house, as such, he along with Surendra Singh went around midnight in search of the cow. In the intervening night of 23 / 24.10.1994, at about 02:00 A.M., when the two (P.W. 4 and P.W. 5) were returning after making search of the cow, they saw Om Prakash taking dead body of Raj Kumar on his shoulders towards river Ganga. Next morning they went to Seva Ram Pujari but could not find him in the temple. They made another attempt to meet Seva Ram to inform about the incident a day thereafter. Seva Ram (P.W. 1) on the basis of the information received, lodged first information report (Ext. A –1) with police station Kankhal on 25.10.1994, around 04:00 P.M. The police prepared the check report (Ext. A –3) on the basis of the first information report and made necessary entry in the general diary at Sl. No. 21. A crime No. 180 of 1994 was registered relating to offences punishable under Section 3 302 / 201 of I.P.C. against the accused Om Prakash. The investigation was conducted by Station Officer Ms. Kamlesh Sharma (P.W. 7). On the same day i.e. 25.10.1994, at about 05:00 P.M., dead body of Raj Kumar was recovered from river Ganga, and inquest report (Ext. A –6) was prepared in the presence of Gopal (P.W. 6) and other witnesses. The Investigating Officer further prepared sketch of the dead body (Ext. A –7), police form No. 13 (Ext. A –8), letter to the Chief Medical Officer (Ext. A –9) requesting for postmortem examination. The dead body was sent in a sealed cover for postmortem examination. Dr. Rameshwar Prasad (P.W. 2) conducted the postmortem examination on 26.10.1994, at about 11:50 A.M. He recorded the ante mortem injuries in the autopsy report (Ext. A –2) and opined that the deceased had died due to asphyxia as a result of strangulation. After interrogating the witnesses and making recovery of the blood stained mat, the Investigating Officer submitted charge sheet (Ext. A –13) against the accused / appellant Om Prakash S/o Chhakki for his trial in respect of the offences punishable under Section 302 / 201 of I.P.C. 4) The Magistrate, on receipt of charge sheet, after giving necessary copies to the accused, as required under Section 207 of Cr.P.C., appears to have committed the case to the court of Sessions, for trial. Learned Sessions Judge, after hearing on 23.06.1995, framed charge of offences punishable under Section 302 and 201 of I.P.C. against the accused Om Prakash, to which he pleaded not guilty and claimed to be tried. The case was thereafter transferred to the court of Additional Sessions Judge, Haridwar. In 4 support of their case, the prosecution got examined P.W. 1 Seva Ram (declared hostile); P.W. 2 Dr. Rameshwar Prasad (who conducted the postmortem examination on the dead body of Raj Kumar); P.W. 3 Head Constable Vikaram Singh (who prepared the check report of F.I.R. and made necessary entry in the general diary on 25.10.1994); P.W. 4 Raj Pal (who saw the accused / appellant taking the dead body of Raj Kumar towards the river); P.W. 5 Surendra Singh (who also saw the accused / appellant Om Prakash taking the dead body of Raj Kumar towards the river); P.W. 6 Gopal (witness of preparation of inquest report and also scribe of the F.I.R.) and P.W. 8 Station Officer Ms. Kamlesh Sharma (the Investigating Officer). The oral and documentary evidence was put to the accused / appellant under Section 313 of Cr.P.C., in reply to which he alleged the same to be false. However, no evidence in defence was adduced. After hearing the parties, the trial court found accused / appellant Om Prakash guilty of charge of offences punishable under Section 302 and 201 of I.P.C. After hearing the parties on sentence, the convict was sentenced to undergo imprisonment for life under Section 302 of I.P.C. and to rigorous imprisonment for a period of three years under Section 201 of I.P.C. Aggrieved by said judgment and order dated 30.10.1995, passed by learned I Additional Sessions Judge, Haridwar, in Sessions Trials No. 35 of 1995, this appeal was got sent by the convict from jail through the Superintendent of Jail to the Allahabad High Court, where it was admitted in the year 1997. The appeal is received by transfer to this Court 5 under Section 35 of the U.P. Re-organization Act, 2000 (Central Act No. 29 of 2000), for its disposal. 5) Before further discussion, we think it just and proper to mention here the ante mortem injuries found on the person of the deceased at the time of postmortem examination, which were recorded by P.W. 2 Dr. Rameshwar Prasad, who conducted the postmortem examination and prepared the autopsy report (Ext. A –2). The same are being reproduced below: - i) “Incised wound 2.5 cm X 1 cm X bone deep present on left side of forehead, 1 cm above the left eyebrow. ii) Abraded contusion 8 cm X 5 cm present on the left side of head. iii) Ligature mark 28 cm X 2 cm present around the neck, 8 cm below right ear, 8 cm below left ear, 6 cm below chin, below ligature mark, hyoid bone found intact.” The Medical Officer opined that the deceased died of asphyxia as a result of strangulation. From the statement of P.W. 2 Dr. Rameshwar Prasad read with autopsy report (Ext. A –2) it is clear that Raj Kumar (deceased) had died homicidal death due to asphyxia as a result of strangulation. Now, we have to see whether the accused / appellant Om Prakash has committed murder of Raj Kumar, in the manner suggested by the prosecution, or not? 6) It is a case of circumstantial evidence, as there is no direct eyewitness account of commission of murder of Raj 6 Kumar. The prosecution has shown following chain of circumstances from the evidence adduced by it: i) Accused Om Prakash along with his wife used to live in the house of Raj Kumar (deceased). ii) On 23.10.1994, at about 5:00-6:00 P.M., Om Prakash (accused) quarreled with Raj Kumar (deceased) protesting as to why he (deceased) had molested and unclothed his wife. iii) At the time of quarrelling he (Om Prakash) threatened Raj Kumar of dire consequences. iv) Accused Om Prakash was seen in the intervening night of 23 / 24 of October 1994, taking dead body of Raj Kumar (deceased) on his shoulders towards river Ganga by witnesses P.W. 4 Raj Pal and P.W. 5 Surendra Singh. v) The dead body of Raj Kumar was found in river Ganga, at a distance of one furlong from the house of the accused, on 25.10.1994. vi) Around the neck of the dead body, a LANGOT (an undergarment used by males) was found tied. vii) Autopsy report (Ext. A –2) prepared by P.W. 2 Dr. Rameshwar Prasad also shows that cause of death of the deceased was asphyxia as a result of strangulation. 7 viii) Till recovery of the dead body, accused Om Prakash, who used to live with the deceased never told anyone as to the whereabouts of the deceased or that he was missing. ix) There is no enmity of the accused Om Prakash with either of the two witnesses, namely P.W. 4 Raj Pal and P.W. 5 Surendra Singh, which may create any doubt as to the truthfulness on the deposition made by them. 7) Though, P.W. 1 Seva Ram (complainant) has been declared hostile, but he has stated that the report (Ext. A – 1) was scribed by Gopal. P.W. 6 Gopal has stated on oath that he scribed the report on dictation of Baba Seva Ram (P.W. 1). This witness has further proved that when the dead body was recovered inquest report was prepared by the police in his presence. This witness has further stated that around the neck of the dead body there was a LANGOT (an undergarment of males) tied. 8) P.W. 4 Raj Pal and P.W. 5 Surendra Singh are the most important witnesses in this case, who have narrated that on 23.10.1994, at about 5:00-6:00 P.M., they saw accused Om Prakash quarrelling with Raj Kumar (deceased). The two have stated that accused was protesting as to why the deceased had molested and unclothed his wife. According to these witnesses the accused further threatened the deceased of dire consequences. However, P.W. 4 Raj Pal and P.W. 5 8 Surendra Singh state that they pacified the quarrelling parties and left the place. Both witnesses have shown their residence ‘Ganga Paar’ (across the river) within the limits of police station Kankhal. The house of the deceased Raj Kumar, as shown in the site plan (Ext. A –11) shows the location of the house of Raj Kumar, where Om Prakash is said to have been living with him. It has also come on the record that witnesses, accused and the deceased were living in the same locality. P.W. 4 Raj Pal and P.W. 5 Surendra Singh further state that in the intervening night of 23 / 24.10.1994, they had gone in search of the cow of Raj Pal, as it has not returned to the house in that evening and they were coming back when they saw in the light of the torch, accused / appellant Om Prakash taking the dead body of Raj Kumar towards the river. According to these two witnesses, next day morning they tried to inform Baba Seva Ram Pujari, but could not find him in the temple, and a day thereafter they again met him and told about what they had seen. P.W. 1 (Seva Ram), though declared hostile, had stated that on 25.10.1994, Raj Pal and Surendra Singh told him that old man Raj Kumar is missing and they further told him that Om Prakash has made Raj Kumar disappeared. 9) Having re-examined the prosecution evidence and re- assessing the same, we are convinced that from the evidence adduced by the prosecution witnesses, this is established on record that accused / appellant Om Prakash, after the deceased (Raj Kumar) molested his wife and unclothed her, strangulated him sometime in the intervening night of 23 / 24.10.1994. It is also established 9 from the circumstances proved on record by the prosecution, as discussed above, that Om Prakash in the said night threw the dead body of Raj Kumar in river Ganga. As such, we agree with the trial court to the extent that the prosecution has successfully proved that Om Prakash has committed culpable homicide and thereafter made the dead body disappeared from the place of commission of crime. However, having considered the facts and circumstances of the case, we are of the view that the accused / appellant had committed culpable homicide not amounting to murder, as the accused was deprived the power of self-control due to grave and sudden provocation given by the deceased. His act is covered under Exception I of Section 300 of the I.P.C., for the deceased had molested the wife of accused / appellant Om Prakash and unclothed her. As no deadly weapon was used in committing the culpable homicide, the act cannot be said to have been committed in a cruel or brutal manner. Therefore, the conviction of the accused / appellant Om Prakash deserves to be modified from 302 of I.P.C. to 304 Part I of I.P.C. 10) Accordingly, the appeal is partly allowed. The accused / appellant Om Prakash is acquitted of the charge of offence punishable under Section 302 of I.P.C., but convicted under Section 304 Part I of I.P.C. Having considered the submissions of learned counsel for the parties and after taking into account the circumstances of the case, we think it just and proper to award the convict (appellant) sentence of rigorous imprisonment for ten years under Section 304 Part I of I.P.C., and accordingly sentence 10 him. As to the conviction and sentence recorded by the trial court relating to offence under Section 201 of I.P.C., the same is not interfered with. The accused / appellant is in jail since October 1994. The period spent by him in jail during investigation, trial and pendency of this appeal shall be set off. If the sentence has already been served out by him he shall be set at liberty, if not wanted in connection with any other case. The appeal stands disposed of. Send the lower court record back to the trial court. The Registry is directed also to send a copy of this judgment to the concerned Superintendent of jail. (Dharam Veer, J.) (Prafulla C. Pant, J.) Dt. September 03, 2008. H. Negi