IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Government Appeal No.2005 of 2001 (Old No. 3525 of 1999) State of U.P. (now State of Uttarakhand) …..…Appellant Versus Shanker Ram, S/o Teeka Ram R/o Village Chaurkanya, Patwari Area Danya, Dhyari (Batoli) P.S. Almora, District Almora ……….Respondent Shri Nandan Arya, A.G.A., present for the State/Appellant. Shri Rajendra Kotiyal, Advocate, present for the accused/respondent. Hon'ble Prafulla C. Pant, J. Hon'ble Sudhanshu Dhulia, J. Oral: Hon'ble Prafulla C. Pant,J. This appeal preferred under section 378 of Code of Criminal Procedure, 1973 (for short Cr.P.C.), is directed against judgment and order dated 08.09.1999, passed by Sessions Judge, 2 Pithoragarh, in Sessions Trial no. 44 of 1995, whereby said court has acquitted accused/respondent Shanker Ram from the charge of offences punishable under section 354, and 302 of Indian Penal Code, 1860 (for short I.P.C.). 2. Heard learned counsel for the parties, and perused the lower court record. 3. Prosecution story, in brief, is that on 24.05.1994, at about 5:30 a.m., P.W.2 kiri Devi, was sleeping in her courtyard in village Timta, in District Pithoragarh, when the accused/respondent Shanker Ram started molesting her. On this, she woke up and raised alarm, and her husband Hari Ram and father - in – law Sher Ram (both deceased) came there. They attempted to save her but, accused/respondent Shanker Ram picked up a piece of long wood, and assaulted Sher Ram and Hari Ram who suffered injuries. Sher Ram died at the spot. Hari Ram who was taken to near by Primary Health Center, Gangolihat. After examining his injuries, and considering his condition he was referred to District Hospital, Pithoragarh. However, he 3 succumbed the injuries on his way to the District Hospital. P.W.6 Diwani Ram (son of deceased Sher Ram and brother of deceased Hari Ram) got scribed first information report (Ex. A7) (for short FIR) through one Fakir Ram (P.W.5), and gave it at police outpost Gangolihat, on the same day(24.05.1994) at about 12:30 noon. It is stated in said report that when other villagers came to the spot, accused Shanker Ram threw the piece of long wood in a bush, and ran away. On the basis of said report, crime no. 25 of 1994, was registered, and investigation was taken up by CW1 Sub-Inspector Gainda Lal Diwakar. He went to the spot, took dead body of Sher Ram in his possession, and prepared inquest report (Ex.A6) at about 4:00 P.M.. He got prepared other connected papers, sketch of the dead body (Ex. A13), police form no. 13 (Ex. A14), sample seal (Ex. A15), and letter to Chief Medical Officer (Ex. A16) requesting for post- mortem examination. He interrogated the witnesses, and prepared site plan (Ex. A17). Hari Ram @ Hari Prasad , the another injured, died on his way to District Hospital, Pithoragarh, at about 7:55 P.M., (24.05.1994). His dead body was taken into custody on the next day i.e. 25.05.1994, at 4 about 8:30 a.m., from the mortuary in Pithoragarh, and inquest report (Ex. A8) was got prepared by S.I. R.S. Gautam, who also got prepared sketch of the dead body (Ex. A18), police form no. 13 (Ex. A19), letter to Chief Medical Officer (Ex.A20) requesting for post-mortem examination, and the bodies were sent for autopsy in a sealed condition. P.W. 4 Dr. G.K. Sharma, conducted post-mortem examination on the two dead bodies on 25.05.1994, and autopsy report (Ex. A2) in respect of body of Sher Ram, and autopsy report (Ex. A3) in respect of dead body of Hari Ram @ Hari Prasad were prepared. The said medical officer after recording the ante-mortem injuries of the two deceased, opined separately that each one of them had died of head injuries due to ante-mortem injuries. Before Hari Ram was was referred to District Hospital , P.W.3 Dr. Ram Babu of Primary Health Center, Gangolihat, recorded injuries found in his person at about 10:00 am, and prepared report (Ex. A1). The investigation was transferred to P.W.9 Station Officer P.K. Upreti , who completed the same. Meanwhile, earlier Investigating Officer had recovered the piece of long wood used in the crime , and recovery memo (Ex.A4) was prepared 5 on the very day (24.05.1994). The first Investigating Officer had also already taken blood stained soil, and plain soil from the spot and prepared memorandum (Ex. A5). The subsequent Investigating Officer got sent blood stained soil and the long piece of wood for chemical analysis to Forensic Laboratory, Agra. The report (Ex. A22) was received from the laboratory with the finding that items sent for examination contained blood stains. On the blood stained soil it was observed that it contained human blood spot. As to the piece of wood, it was mentioned that due to disintegration the blood could not be classified. In the clothes of the deceased, human blood stains were found. On completion of investigation, subsequent Investigating Officer submitted charge sheet (Ex. A21) against the accused Shanker Ram for his trial in respect of offences punishable under section 354, and 302 IPC. 4. The Munsif/ Judicial Magistrate, Pithoragarh, on receipt of the charge sheet, after giving necessary copies to the accused as required under section 207 Cr.P.C., committed the case to the court of Sessions for trial. Learned Sessions 6 Judge, Pithoragarh, on 26.06.1995, after hearing the parties, framed charge of offences punishable under section 354 IPC, and under section 302 IPC, against the accused/respondent Shanker Ram, who pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W.1 Kedar Ram (who reached at the spot after the incident), P.W.2 Kiri Devi (who was molested, and witnessed the commission of murder), P.W.3 Dr. Ram Babu (who examined injuries on person of Hari Ram before he was referred to District Hospital), P.W.4 Dr. G.K. Sharma (who conducted post-mortem examination on the two bodies of Shanker Ram and Hari Ram ), P.W.5 Fakir Ram (Village Pradhan and eye witness of the incident, recovery of wood, and that of preparation of inquest report relating to body of Shanker Ram), P.W.6 Diwani Ram (complainant, eye witness, son of Shanker Ram and brother of Hari Ram), P.W.7 Constable Gopal Dutt (who prepared check report [Ex. A9] , and made necessary entry in the General Diary), P.W.8 Harish Prasad (in whose presence blood stained soil, and sample soil were taken by the Investigating Officer), P.W.9 Station Officer P.K. Upreti (who completed the investigation). 7 The oral and documentary evidence was put to the accused under section 313 Cr.P.C., in reply to which he alleged that he has been falsely implicated , and he was not at the spot. He has further stated that he was unwell. In defence, D.W.1 Jagannath was got examined in which he stated that accused was suffering from mental illness. The court thereafter got examined CW1 S.I. G.L.Diwakar , from whom the investigation was transferred to P.W.9 P.K.Upreti. Said evidence was also put to the accused on 18.08.1999, in reply to which accused simply said that the investigation proceedings are false. After hearing the parties, the trial court found that the prosecution has not proved charge of offences punishable under section 354 and 302 IPC, against the accused beyond reasonable doubt, and accordingly acquitted the accused. Aggrieved by said judgment and order dated 08.09.1999, this appeal was filed by the State before Allahabad High Court on 06.12.1999. The appeal was received to this Court by transfer under section 35 of U.P. Reorganization Act, 2000 (Central Act, 29 of 2000). Leave was granted by this Court on 15.04.2005, and notices were issued to the accused/respondent 8 Shanker Ram, who is represented through his counsel. 5. Before further discussion, we think it just and proper to mention the ante-mortem injuries recorded by P.W.4 Dr. G.K. Sharma, who conducted post-mortem examination on the dead bodies of Shanker Ram and Hari Ram @ Hari Prasad on 25.05.1999. Ante-mortem injuries found on the body of Sher Ram which are recorded in autopsy report (Ex. A2) are reproduced below:- (i) Lacerted wound over left pinna of ear 2cm X 0.5cm. (ii) Lacerated wound over left lobule of ear 1cm X 1cm. (iii) haemotoma over post auricular area of martrid procan 8cm X 8cm. (iv) Four contusions of 1cm X 1cm to 3cm X 1cm size over left upper limb. (v) Triangular abraded contusion over lumber spinal area on skin 3cmX 2cm. (vi) Abraded contusion of 2cm X 1cm size skin deep over right forearm dorsal surface bluish coloured. 9 (vii) Abraded contusal swelling right hand 8cmX 6cm. Fracture of right second metacarpal bone. On internal examination haemotoma was found inside injury no.3. Fracture was found in left parietal of occipital bone. The Medical Officer opined that Sher Ram (deceased) died of head injuries due to ante-mortem injuries. The same Medical Officer (P.W.5) Dr. G.K. Sharma conducted post mortem examination on 25.05.1994, on the dead body of Hari Ram (Son of Sher Ram) and recorded following ante-mortem injuries in the autopsy report (Ex.A3):- (i) Swelling with contusion in area left side front parietal , maxillary of orbital region. Bluish coloured. (ii) Abrasion over back at thorasic spine left, measuring from 3cm X 5cm to 1cmX0.25cm. (iii) Abraded contusion over right forearm 2cm X 1cm. On internal examination two more injuries mentioned below, were found in the body of Hari Ram @ Hari Prasad (iv) On cutting scalp at parietal region of 10 skull about 200ml haemotoma present. (v) Fracture of parietal left bone of temporal bone measuring 12cm horizontally placed X 0.5cm. Fracture on temporal and parietal bone was extending downwards from posterior reach of parietal bone. P.W.4 Dr. G.K. Sharma, opined in the autopsy report that Hari Ram has also died of head injury due to ante-mortem injuries. The ante-mortem injuries mentioned in the autopsy report (Ex. A3) correspond to the injuries mentioned by P.W.3 Dr. Ram Babu, who examined injuries on the person of Hari Ram at 10:00 a.m., before he was referred to District Hospital,and died on his way to said destination. The medical injury report (Ex. A1) prepared by P.W.3 Dr. Ram Babu, shows that following injuries were found on the person of Hari Ram at 10:00 a.m., on 24.05.1994:- (i) Haemotoma about 6 inches X 1/2 inches X1/4 inches size over left parietal area. (ii) Deformed haemotoma over left side supra orbital area. 11 P.W.3 Dr. Ram Babu opined that the patient (Hari Ram) was in deep coma due to head injury. He further opined in the report (Ex. A1) that the injuries appear to have been caused by blunt object. From the medical evidence, discussed above, it is established beyond reasonable doubt that both Sher Ram, and his son Hari Ram died a homicidal death on 24.05.1994. Now, we have to see whether the prosecution has successfully proved that accused Shanker Ram committed murder of the two deceased, and molested P.W.2 Kiri Devi. We are further required to examine whether the trial court has committed error of law in acquitting the accused. 6. P.W.2 Kiri Devi is the star eye witness of the case. She has stated of oath before the trial court that on the day of incident at about 5:15 a.m., she was sleeping in her courtyard when accused Shanker Ram came there, and molested her. She further states that she woke up, and raised alarm on which her father- in – law Sher Ram, and her husband Hari Ram protested to accused Sher Ram, and asked him as to what he was doing. On this, Shanker Ram picked up a piece of long wood 12 from the heap of wood and gave blows on the person of Hari Ram and Sher Ram. P.W.2 Kiri Devi further states that meanwhile her brother-in- law Diwani Ram (P.W.6) had also reached there. The other villagers Fakir Ram (P.W.5), and Kedar Ram (P.W.1) also came to the place of incident. P.W.2 Kiri Devi further states that on seeing the villagers accused threw the piece of wood in a bush, and ran away. The presence of this witnesses in her house is natural. She has no enmity with accused Shanker Ram, as such his statement is trustworthy. 7. P.W.1 Kedar Ram has stated that he made an attempt to chase Shanker Ram but could not catch him. However, he did not state in clear words that he saw Shanker Ram assaulting the deceased. 8. P.W.6 Diwani Ram (complainant and son of Shanker Ram, and brother of Hari Ram)has fully corroborated the prosecution story as narrated by P.W.2 Kiri Devi relating to the fact that Sher Ram and Hari Ram were given blows by piece of wood by accused Shanker Ram. This 13 witness has stated that on the day of incident he woke up on hearing alarm in the courtyard, and saw accused Shanker Ram assaulting with a 'DANDA' to Hari Ram and Sher Ram. This witness has further stated that thereafter accused ran away. This witness has also stated that Fakir Ram and Kedar Ram came at the spot. The presence of Diwani Ram (P.W.6) in his house at the time of incident is natural , and his testimony cannot be doubted. P.W.6 Diwani Ram has proved that he lodged FIR (Ex. A7) with the police. He has also proved the inquest report (Ex. A8) relating to body of Hari Ram which was prepared by the police. Lastly, he has stated that deceased Hari Ram is also known as Hari Prasad. Nothing has come out in cross-examination which creates doubt in his testimony. 9. P.W.5 Fakir Ram has corroborated the testimony of P.W.6 Diwani Ram. This witness is Village Pradhan. He has stated that on 24.05.1994, at about 5:30 a.m., he was on his way to the house of Paniram, when he heard alarm, and went to the house of Sher Ram and saw Shanker Ram assaulting Sher Ram and Hari Ram. This witness 14 has also proved the recovery of piece of wood by the police . He has further proved inquest report prepared in the village, relating to dead body of Sher Ram. 10. On appreciating the evidence on record of the witnesses, we found that there is nothing which creates reasonable doubt in the testimony of the three eye witnesses namely P.W.2 Kiri Devi, P.W.5 Fakir Ram, and P.W.6 Diwani Ram (complainant). In our opinion trial court has committed error of law in holding that the prosecution has failed to prove charge against the accused, beyond reasonable doubt. 11. On behalf of the accused/respondent, it is submitted that the accused Shanker Ram was insane person, and it cannot be said that he committed murder of Hari Ram and Sher Ram. We have carefully examined statement of D.W.1 Jagannath, and found that in the cross- examination this witness has stated that his brother Shanker Ram (accused/respondent)used to go in her in -laws place, and during that period he was well. It has come on record that Village Timta 15 where incident occurred, is the village where the parental house of wife of the accused is situated. The accused Shanker Ram admittedly belong to Village Chorkanya of District Almora. The presence of accused Shanker Ram in Village Timta on the day of incidence is admitted by D.W.1 Jagannath himself. In his examination in chief he says, on 21.05.1994, he had gone with Shanker Ram (accused/respondent) to Village Timta, and on 26.05.1994, took him to District Almora. Now, the question is whether the accused was in the state of insanity at the time of incident or not. Had he been in the state of insanity, he would not have gone to molest the woman (P.W.2. Kiri Devi) by entering in her courtyard. Unless, defence is able to establish that accused was suffering from insanity at the time of molestation of P.W.2 Kiri Devi or commission of murder of Sher Ram and Hari Ram, he cannot take any benefit in the matter. Burden of proof relating to General Exception lies with the defence. Section 105 of Indian Evidence Act, 1872, provides that when a person accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in 16 the Indian Penal Code, 1860, or within any special exception, is upon him , and the court shall presume the absence of such circumstances. Though special procedure is provided under chapter xxv of Code of Criminal Procedure, 1973, as to the accused persons of unsound mind but in the present case no such plea was taken on the basis of which the trial court could have proceeded under said Chapter. Rather, in the statement under section 313 Cr.P.C., accused simply says that he has been falsely implicated due to enmity. At the end of examination D.W.1 Jagannath (brother of accused) says that when his brother (accused Shanker Ram) went mad, he was not taken to any Doctor for the treatment. If the person after committing DOUBLE MURDER, to save himself from his arrest, goes to the adjoining district, and moves an application under section 13 of Lunacy Act, 1912, it does not mean that he was insane at the time when he committed the murders. No doubt, it has come on the record that accused went to Almora, and moved an application under section 13 of Lunacy Act, 1912 (since repealed vide section 98 of the Mental Health Act, 1987) and remained in jail. But what is 17 relevant for the purposes of this case is the fact, whether at the time of commission of molestation and murder, the accused was suffering from any insanity or mental disorder or not. The same has not been proved on behalf of the defence. 12. It is also argued on behalf of the accused/respondent that the offence even if treated to have been proved, it attracts only section 304 IPC, and not section 302 IPC. However, considering the number of injuries found on the dead body of Sher Ram and Hari Ram, we do not agree with the submission advanced on behalf of the accused/respondent. There is no evidence of any provocation to the accused nor was he exercising any right to private defence. It was he who molested the woman (P.W.2 Kiri Devi), and when her husband and father-in-law came to save her, they were killed by the accused/respondent. In the circumstances, we are of the view that prosecution has successfully proved charge of offences punishable under section 354, and 302 IPC, against the accused/respondent Shanker Ram. 18 13. Having heard learned counsel for the parties, and after going through the facts and circumstances of the case, we feel it just and proper to convict and sentence the convict Shanker Ram (accused/respondent) to rigorous imprisonment for a period of one year under section 354 IPC, and imprisonment for life under section 302 IPC. Accordingly, the appeal is allowed. The impugned judgment and order dated 08.09.1999, passed by Sessions Judge, Pithorgarh, in Sessions Trial no. 44 of 1995, acquitting the accused, is set aside. Accused/respondent Shankar Ram is convicted under section 354/302 IPC . After hearing on sentence, he is sentenced to rigorous imprisonment for life under section 302 IPC. Let copy of this judgment be sent alongwith lower court record to the Sessions Judge, Pithoragarh, for making accused/respondent Shanker Ram to serve out the sentence awarded by this Court. A copy of this judgment be provided free of cost to the counsel for the appellant by the registry. (Sudhanshu Dhulia, J.) (Prafulla C. Pant,J.) 08.12.2010 Parul