IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL JAIL APPEAL No. 55 of 2006 Deep Kumar .…. Appellant/Accused Versus State of Uttaranchal …………… Respondent Mr. A.N. Sharma, learned Amicus Curiae for the appellant/convict. Mr. Nandan Arya, learned AGA for the State/respondent. ……………………… November 6, 2009 Coram: Hon. B.C. Kandpal, J. Hon. Dharam Veer, J. Judgment: Per Hon. Dharam Veer, J. (Oral) This appeal, preferred by the appellant under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.), is directed against the judgment and order dated 28.3.2006 passed by the Additional Sessions Judge/2nd F.T.C., Haridwar in Sessions Trial No. 54/1999, State v. Deep Kumar, under Section 302 of Indian Penal Code, 1860 (for short, IPC) & Sessions Trial No. 55/1999, State v. Deep Kumar, under Section 4/25 of the Arms Act (for short, the Act), whereby learned Additional Sessions Judge has convicted the accused appellant Deep Kumar under Section 302 IPC and sentenced him to undergo imprisonment for life and fine of Rs. 10,000/-, in default, to undergo additional six months’ rigorous imprisonment. Accused appellant was also convicted under Section 4/25 of the Act and sentenced to undergo R.I. for one year and fine of Rs. 1,000/-, in default, to undergo additional two months’ R.I. 2. In brief, the prosecution case is that PW4 Sant Ram lodged an FIR Ex. Ka-3 in Kotwali Roorkee on 9.11.1998 2 with the averments that his daughter Rekha was married to the accused appellant four years ago. There were two daughters from the said wedlock, viz., Km. Raveena, aged about 3 years and Km. Kajal, aged about one and half years. His son-in-law used to beat his daughter and due to this reason, her daughter remained in her maternal house for the last one year. With the intervention of the Pradhan of the villave Khanjarpur and some other villagers, the compromise had taken place and he had sent his daughter along with the accused appellant. He and his son Ramesh used to go to Khanjarpur to enquire about the well-being of his daughter. On 9.11.1998, he along with Babu Ram had gone to Khanjarpur for enquiring about the well-being of his daughter. At about 3 pm on that day, when he reached at the house of accused appellant, the doors of the house were closed. His call was not answered. When he pushed the door, it got opened. Some bad smell came from the house. When he entered into the house, then he saw that his daughter Rekha and grand daughter Km. Kajal were lying dead on the cot. His another grand daughter Km. Raveena (PW1) was lying below the cot. After seeing this, he raised the alarm, upon which, Jagdish Prasad (PW6) and Naresh Kashyap (PW7) reached on the place of occurrence. Then Km. Raveena told in presence of above-named persons that her mother Rekha and her sister Kajal were murdered by his father i.e. the accused appellant with a knife. The accused appellant had ran away from the spot after committing the murder of his wife and daughter. After leaving the dead body of both the deceased on the spot, he gone to the police station and lodged the report Ex. Ka-3 with the aforesaid averments. 3. On the basis of the report Ex. Ka-3, chick FIR Ex. Ka-17 was prepared at 5 pm on 9.11.1998 by Head 3 Moharrir Ram Singh. The necessary entries were made by him in the GD. Copy of GD is Ex. Ka-18. The investigation of this case was entrusted to SSI Hari Prakash Vats (PW13). As he had gone to Meerut, therefore, primary investigation of this case was done by PW9 SI Nautan Das on the orders of SHO. He prepared the inquest report Ex. Ka-7 of deceased Rekha on 9.11.1998. Along with the inquest report, her photo lash Ex. Ka-11, police form no. 13 Ex. Ka-12 and nomoona mohar Ex. Ka-13 were also prepared on 9.11.1998. Inquest report Ex. Ka-8 of deceased Km. Kajal was also prepared by him on the same day i.e. on 9.11.1998. Along with the inquest report, police form no. 13 Ex. Ka-15, her photo lash Ex. Ka-16 and letter to the Medical Officer In-charge for conducting the post mortem Ex. Ka-14 were also prepared on the same day i.e. on 9.11.1998. He also prepared the site plan Ex. Ka-10 on the pointing out of the complainant Sant Ram and Km. Raveena and also recorded their statements on the same day. Thereafter further investigation of this case was done by SSI Hari Prakash Vats (PW13), who during the course of investigation, recorded the statements of the witnesses and on 29.12.1998, filed the chargesheet Ex. Ka-22 against the accused appellant as an absconder. Post mortem of Rekha was conducted on 10.11.1998 at 3 pm by PW3 Dr. PK Bhatnagar, who prepared the post mortem report is Ex. Ka-2. Post mortem of Km. Kajal was also conducted by PW3 Dr. PK Bhatnagar on 10.11.1998 at 2 pm, her post mortem report is Ex. Ka-1. 4. On 4.1.1999, accused appellant Deep Kumar was arrested by PW11 SI Omveer Singh, who during his interrogation disclosed to the police that in the night of 7/8.11.1998, he had committed the murder of his wife Rekha and daughter Km. Kajal with a knife which was concealed by him in the garbage near the house. On this, 4 the knife was recovered from the abovesaid place on the pointing out of the accused appellant and fard Ex. Ka-4 was prepared. On the basis of the fard, another case under Section 4/25 of the Act was registered against the accused appellant on the same day at 6.30 pm and the chick FIR Ex. Ka-5 was prepared by the Constable Clerk Kamal Singh (PW8). The necessary entries were made in the GD. Copy of GD is Ex. Ka-6. Investigation of this case was entrusted to PW10 ASI Shyam Lal Sharma. During the course of investigation, he recorded the statements of the witnesses and prepared the site plan Ex. Ka-19 of the place of recovery of knife. After completing the investigation, he filed the chargesheet Ex. Ka-20 against the accused appellant. Further investigation of this case was conducted by PW12 SI Ajay Kumar Gupta, who prepared the site plan Ex. Ka-21 of the place of recovery of knife used in the commission of crime. 5. Learned Additional Chief Judicial Magistrate, Roorkee after giving the necessary copies of the documents to the appellant/accused as prescribed under Section 207 Cr.P.C., committed the case to the Court of Sessions on 12.2.1999. 6. On 29.5.1999, learned Sessions Judge, Haridwar framed the charge against the appellant/accused under Sections 302 IPC. The charge was read over and explained to the accused appellant, who pleaded not guilty and claimed to be tried. Lateron the trial of the case was transferred to Additional Sessions Judge/2nd F.T.C., Roorkee for its disposal according to law. 7. To prove its case, the prosecution has examined PW1 Km. Raveena, an eyewitness of the incident; PW2 Mohd. Aslam; PW3 Dr. PK Bhatnagar who conducted the post 5 mortem and prepared the post mortem reports Ex. Ka-1 and Ka-2; PW4 Sant Ram, the complainant; PW5 CL Sharma, Inspector In-charge, PS Kotwali Roorkee who had interrogated the accused appellant after his arrest on 4.1.1999 in which the accused had confessed his guilt and got the knife used in the commission of crime recovered; PW6 Jagdish Prasad; PW7 Naresh Kashyap; PW8 Constable Kamal Singh, who prepared the chick FIR Ex. Ka-5 under Section 4/25 of the Act and made necessary entries in the GD, copy of which is Ex. Ka-6; PW9 S.I. Nautan Das, who had conducted the primary investigation of the case under Section 302 IPC; PW10 ASI Shyam Lal Sharma, who conducted the investigation of the case under Section 4/25 of the Act; PW11 S.I. Omveer Singh, who had arrested the accused appellant on 4.1.1999; PW12 SI Ajay Kumar Gupta, who conducted the further investigation of the case under Section 4/25 of the Act and prepared the site plan Ex. Ka-21 of the place of recovery and PW13 H.P. Vats, who also conducted the investigation of the case under Section 302 IPC and filed the chargesheet Ex. Ka-22. 8. Thereafter, statement of the accused appellant was recorded under Section 313 CrPC. The oral and documentary evidence were put to him in question form, who denied the allegations made against him and stated that he has been falsely implicated in the case. However, in defence, he did not produce any documentary or oral evidence. 9. After hearing learned counsel for the parties and after appreciating the evidence available on record, learned Additional Sessions Judge/2nd F.T.C., Haridwar vide his judgment and order dated 28.3.2006 convicted and sentenced to the appellant accused as discussed 6 above. Against the aforesaid judgment and order dated 28.3.2006, the convict appellant has preferred the present appeal. 10. We have heard learned Amicus Curiae for the appellant and learned AGA for the State and have carefully perused the entire materials available on the record. 11. Before any further discussion, it would be pertinent to mention here the ante mortem injuries found on the body of the deceased Km. Kajal, aged about one and half years, whose post mortem was done by PW3 Dr. P.K. Bhatnagar on 10.11.1998 at 2 pm and prepared the post mortem report Ex. Ka-1 and recorded the following ante mortem injuries: “(1) Incised wound 4 x 1.5 cm, abdominal cavity deep lower left side abdomen 3 cm above left public bone. (2) Contusion 3 x 2 cm occipital region. Cause of death : shock and haemorrage due to ante mortem injuries. Duration : about 2 to 5 days back.” 12. Following ante mortem injuries were found on the body of the deceased Rekha as recorded in the post mortem report Ex. Ka-2 prepared by PW3 Dr. P.K. Bhatnagar, who had conducted the post mortem on 10.11.1998 at 3 pm: “(1) Incised wound 7 x 1 cm bone deep, right side head and forehead 5 cm above right ear. (2) Incised wound 3.5 cm x 1.5, chest cavity deep lower part of chest 17 cm above umbilicus at 12 O’ clock transversally placed. (3) Incised wound 3 x 2 cm abdominal cavity deep, right side lower part of chest, abdominal cavity deep 20 cm below right Axilla. Cause of death : shock and haemorrage due to ante mortem injuries. Duration : about 2 to 5 days back.” 7 13. To prove the aforesaid post mortem reports Ex. Ka-1 and Ka-2, the prosecution has examined PW3 Dr. P.K. Bhatnagar, who has proved the contents of the same and has stated that the injury no. (1) of Km. Kajal and injury no. (1) to (3) found on the body of deceased Rekha could be caused by knife in the night of 7/8.11.1998. Both the deceased Km. Kajal and Rekha died due to shock and excessive loss of blood from the wound sustained by her. 14. To further prove its case, the prosecution has examined PW1 Km. Raveena, who is an eyewitness of this incident. She was only four years’ old at the time of deposition and, therefore, her statement was recorded in question and answer form after testing her general knowledge. It is essential to reproduce some important questions and her answers as have been recorded during her examination-in-chief as well as in her cross- examination and the same are reproduced below: “iz'u % rqEgkjh eEeh vkSj cgu dks fdlus ekjk Fkk mRrj% ikik us lk{kh ls U;k;ky; ds dB?kjs esa [kM+s gq, vU; eqyfteku ds lkFk eqyfte nhi dqekj dks ns[kdj dgk fd ;s esjs ikik gSaA iz'u% rqEgkjh eEeh vkSj cgu dks rqEgkjs ikik us fdl pht ls ekjk Fkk mRrj% pkdw ls iz”u% tc rqEgkjh eEeh o cgu dkty dks rqEgkjs ikik us ekjk Fkk rks D;k rqEgkjh vka[k [kqy xbZ Fkh 8 mRrj% th gk¡A blhfy;s eSus ekjrs gq, ns[kkA eSaus ns[kk fd ikik pkdw ls ekj jgs gSA iz”u% D;k rqEgkjs ikik rqEgkjh eEeh vkSj cgu dks ekj ds Hkkx x;sA mRrj% th gk¡A xxxxxxxxx iz”u% D;k rqEgkjs firkth ml jkst ?kj Fks mRrj% Fks iz”u% D;k rqEgkjs ikik lks jgs Fks mRrj% ikik lks ugha jgs FksA iz”u& D;k ml jkst rsjs nknk ?kj ij FksA mRrj% th ugha iz”u % vkSj ogka dkSu dkSu Fkk mRrj% dksbZ ugha Fkk iz”u % tc rqEgkjs ikik us ekjk Fkk rc rqe dgka FkhA mRrj% pkjikbZ ds uhps FkhA” 15. PW2 Mohd. Aslam has stated that on 9.11.1998, quilt, bedding and shawl of deceased Rekha were taken into possession by the police and a fard (Ex. Ka-9) was prepared and he had also signed on that. He has further stated that inquest reports of Km. Kajal and Rekha were also prepared on the same day and he had signed on those inquest reports. Thereafter dead bodies were sealed and were sent for the post mortem. 16. PW4 Sant Ram, the complainant, has proved the contents of the FIR Ex. Ka-3 and has further stated that 9 he had also signed on the inquest reports of Km. Kajal and Rekha. 17. PW5 C.L. Sharma has stated that on 4.1.1999, he was posted as In-charge, Kotwali Roorkee. On that day, accused appellant Deep Kumar was arrested by S.I. Omveer Singh (PW11). This witness has further stated that he interrogation the accused appellant, who confessed his crime and has stated that he could get the knife recovered which was used by him in the commission of crime, which he had concealed in the garbage near his house. Then he along with S.I. Omveer Singh (PW11), Constables Mahaveer Singh and Vijendra Singh had gone in a jeep to village Khanjarpur. Accused appellant had taken out the said knife from the garbage near his house and handed over to the police. Recovery memo Ex. Ka-4 was prepared on the spot by S.I. Omveer Singh (PW11) on his dictation and he and other witnesses as well as the accused appellant singed on that fard. This witness has identified the said knife in the court as Ex. 1. 18. PW6 Jagdish Prasad has stated that the accused appellant was living in his neighbourhood. Both the accused appellant and his wife Rekha were known to him. When he heard the noise at about 3 pm on 9.11.1998, then he went to the spot along with Naresh Kashyap (PW7), where PW4 Sant Ram, father-in-law of the accused appellant was shouting. He has further stated that Km. Raveena (PW1) had told in his presence that the accused appellant killed her mother and her sister Kajal with knife. 19. PW7 Naresh Kashyap has corroborated the statement of PW6 Jagdish Prasad. 10 20. PW8 Constable Kamal Singh has stated that on 4.1.1999 he was posted as Constable Clerk, Kotwali Roorkee. On that day he had registered a case under Section 25/4 of the Act against the accused appellant on the basis of the fard/tehrir of SHO CL Sharma (PW5). That chick FIR is Ex. Ka-5. Necessary entries were also made by him in the GD. Copy of GD is Ex. Ka-6. 21. PW9 S.I. Nautan Das has stated that on 9.11.1998, he was posted in Kotwali Roorkee as S.I. On that day, the investigation of this case was entrusted to SSI Hari Prakash Vats (PW13). As Hari Prakash Vats had gone to Meerut, therefore, primary investigation of this case was done by him on the orders of the SHO. On 9.11.1998, after recording the statement of Sant Ram (PW4), he reached at the place of occurrence along with police force. He prepared the inquest reports of Rekha and Km. Kajal, which are Ex. Ka-7 and Ka-8 respectively. Dead bodies were sealed and sent for the post mortem. Blood stained quilt, bedding and shawl were taken into possession and fard Ex. Ka-9 was prepared. He prepared the site plan Ex. Ka-10 on the pointing out of the complainant Sant Ram and Km. Raveena. On the same day he recorded the statement of Km. Raveena (PW1). Photo lash, challan lash, namoona mohar, letter to Medical Officer, In-charge, challan lash of Km. Kajal and photo lash of Km. Kajal were also prepared, which are Ex. Ka-11, Ka-12, Ka-13, Ka-14, Ka-15 and Ka-16 respectively. Thereafter further investigation of this case was done by SSI Hari Prakash Vats (PW13). He has further stated that chick FIR Ex. Ka- 17 was prepared by Head Moharrir Ram Singh. He had also made the necessary entries in the GD. Copy of GD is Ex. Ka-18. 11 22. PW10 Shyam Lal Sharma has stated that on 4.1.1999, he was posted as ASI in PS Kotwali Roorkee. On that day investigation of the case registered under Section 25/4 of the Act against the accused appellant was entrusted to him. During the course of investigation, he recorded the statements of the witnesses and prepared the site plan Ex. Ka-19 of the place of recovery of knife. After completing the investigation, he filed the chargesheet Ex. Ka-20 against the accused appellant. 23. PW11 S.I. Omveer Singh has stated that on 4.1.1999, he arrested the accused appellant, who was interrogated by Inspector In-charge CL Sharma (PW5). During the interrogation, the accused appellant admitted his guilt and stated that the knife which was used by him in the commission of crime was hidden by him in the garbage near the house. Then Inspector In-charge C.L. Sharma along with this witness and Constables Mahaveer Singh and Vijendra Singh had gone in a jeep to village Khanjarpur. Accused appellant had taken out the said knife from the garbage near his house and handed over to the police. He has further stated that he prepared the recovery memo Ex. Ka-4 on the spot by him on the dictation of PW5 CL Sharma and it was signed by him and other witnesses as well as the accused appellant. This witness has identified the said knife in the court as Ex. 1. 24. PW12 S.I. Ajay Kumar Gupta has stated that on 15.1.1999, he was posted as SSI in PS Roorkee. Further investigation of the case under Section 4/25 of the Act was entrusted to him. He perused the case diary on 18.1.1999. He inspected the place of occurrence on 19.1.1999 and prepared the site plan Ex. Ka-21 of the place of recovery of knife on the pointing out of S.I. 12 Omveer Singh (PW11). He also recorded the statements of the witnesses. 25. PW13 H.P. Vats has stated that on 13.11.198, he was posted as SSI in PS Kotwali Roorkee and on that day he resumed the investigation of the case under Section 302 IPC. He perused the case diary, recorded the statements of the witnesses and on 29.12.1998, he filed the chargesheet Ex. Ka-22 against the accused appellant as an absconder. On 5.1.1999, he recorded the statement of accused appellant Deep Kumar, who confessed the guilt before him. Case property was sent for chemical analysis to Agra by him on 12.1.1999. Thereafter he was transferred from Roorkee. 26. Thereafter, statement of the accused appellant was recorded under Section 313 CrPC. The oral and documentary evidence were put to him in question form, who denied the allegations made against him and stated that he has been falsely implicated in the case. However, in defence, he did not produce any documentary or oral evidence. 27. Learned Amicus Curiae for the appellant argued that on the basis of the evidence discussed above, the prosecution has failed to prove its case against the accused appellant beyond reasonable doubt and he is entitled to get the benefit of doubt. We do not find any force in the argument of learned Amicus Curiae for the appellant for the following reasons: (i) That PW1 Km. Raveena, an eyewitness of the case has supported the prosecution case in examination-in-chief and has stated that her mother Rekha and her sister Km. Kajal were murdered by the accused appellant. Although in her cross- 13 examination, she has not supported the prosecution version in toto, but she has stated that on the date of incident, only her father i.e. the accused appellant was present in the house and none else, which shows that the accused appellant was very much present on the date of incident in the house where the incident took place. In reply to a question put to her by the defence counsel as to where she was when her father (accused appellant) was committing the murder, she has stated that she was hiding under the cot. Up to this extent, this witness has supported the prosecution case and has proved that at the time of incident only her father was present in the house and none else. Thus, the circumstances also prove that the accused appellant was the only person who committed the murder of his wife Rekha and daughter Km. Kajal. (ii) That the incident happened in the night of 7/8.11.1998, but the accused appellant did not complain the matter either to the police or anybody else. Rather he escaped from the place of occurrence and was arrested after nearly two months on 4.1.1999. That conduct of the accused appellant also shows his involvement in the said crime. (iii) That PW6 Jagdish Prasad and PW7 Naresh Kashyap have also stated in their respective statements that on 9.11.1998 when PW4 Sant Ram came at the place of occurrence and screamed after seeing the dead bodies, then they also reached at the spot and child witness Km. Raveena (PW1) had stated in their presence that her father killed her mother Rekha and her sister Kajal in the night. That was the first hand information given by Km. Raveena to PW4 Sant Ram, her maternal grand father, PW6 Jagdish Prasad and PW7 Naresh Kashyap. 14 (iv) That PW4 Sant Ram, the complainant has supported the prosecution case in his examination- in-chief. Although in his cross-examination, he has not supported the prosecution case on certain point and was declared hostile and when he was cross- examined by DGC, he again supported the case of prosecution and proved the averments made in the FIR Ex. Ka-3. As his examination-in-chief, cross- examination and re-examination were recorded on different dates, hence it might be possible that he was somewhat confused and did not support the prosecution case on certain points, but again when he was cross-examined by the prosecution and in the re-examination, he again supported the case of prosecution. In this manner, this witness has supported the prosecution version as a whole. (v) That the report of the Forensic Laboratory, Agra contained in paper no. 70-Kha reveals that human blood was found on the articles sent for the chemical analysis, which corroborates the prosecution story. (vi) That the ocular evidence adduced by the prosecution is also supported by the medical evidence. In the post mortem reports Ex. Ka-1 & 2 as well as in the deposition of PW3 Dr. P.K. Bhatnagar, who had conducted the autopsy and prepared the abovementioned post mortem reports, it has clearly been stated that incised wounds received by the deceased could have been caused by the knife. Importantly, knife in the said crime was also recovered from the garbage near the house of the accused appellant on his pointing out. (vii) That it has been also stated by PW3 Dr. P.K. Bhatnagar in the aforesaid post mortem reports as well as in his deposition that the cause of death is 15 the ante mortem injuries recorded by him in the post mortem reports and death of both the aforesaid persons possibly happened in the night of 7/8.11.1998. Thus, the prosecution story is also supported by the medical evidence. (viii) That in his statement under Section 313 CrPC, the accused appellant has stated that he had gone outside for labour work, but no witness was examined in support of this averment. Even no documentary proof has been produced in support of his averment. Moreover, he did not point towards anybody else who might be behind this crime. (ix) That the accused appellant