IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Chapter VIII, Rule 32(2) (b) Description of the Case. Date of decision : 18.03.2008 Criminal Appeal No. 97 of 2004 ALONGWITH Criminal Appeal No. 130 of 2004 A.F.R. (Approved for Reporting) Not approved for Reporting (Initial of Judge) Date: 18.03.2008 Note:- Bench Reader will attach this at the top of first page of the judgment when it is put up before the Judge for signature. Judgment Reserved HIGH COURT OF UTTARAKHAND, AT NAINITAL Criminal Appeal No. 97 of 2004 Ram Singh, S/o Lal Singh R/o Village Chissapani P.S. Chissapani District Banke, Nepal Ganj, Anchal Rapti Nepal, at present Srikote, Pauri Garhwal. ……Appellant Versus State of Uttaranchal ……….Respondent. Shri U.P.S. Negi, learned counsel for the appellant. Shri Amit Bhatt, learned A.G.A. for the State. ALONGWITH Criminal Jail Appeal No. 130 of 2004 Raj Kumar Kathaith @ Vikram Singh Kathaith S/o Dilip Singh Kathaith @ Kamila R/o Village Birendra Chauck, Surkeht P.S. & District Surkeht, Anchal Bhiri-Nepal. …….Appellant. Versus State of Uttaranchal ………Respondent. Shri Rajendra Kotiyal, learned Amicus Curiae for the appellant. Shri Amit Bhatt, learned A.G.A. for the State. Coram:Hon’ble Prafulla C. Pant, J. Hon’ble Dharam Veer, J. Per:- Hon’ble Prafulla C. Pant, J. These appeals, preferred under Section 374 of Code of Criminal Procedure, 1973 (herein after referred as Cr.P.C.), are directed against the judgment and order dated 28.02.2004, passed by learned Sessions Judge, Rudraprayag, in Sessions Trial No. 28 of 2003, whereby the accused/appellants-Ram Singh and Raj Kumar Kathaith are convicted under Section 302 read with Section 34 of Indian penal Code, 1860 (herein after referred as I.P.C.), and each one of the convicts/appellants is sentenced to imprisonment for life. 2. Heard learned counsel for the parties and perused the lower court record. 3. It is a case of TRIPLE MURDER. Prosecution story in brief is that P.W. 1 Chandra Bahadur, a chowkidar in Irrigation Department on 25.08.2002, on his return from the duty to his residence, at 11:25 a.m., found his wife Shanti Devi murdered and lying naked in pool of blood. He lodged First Information Report (Ext. A-1) with Patwari Circle Rudraprayag, on 25.08.2002, stating that he was on night duty from 5:00 p.m. on the previous day till 10:00 a.m. on the next day. (In the interior area of Uttarakhand hills certain Revenue Officers are given police powers). On reaching to his quarter, at about 11:25 a.m., he saw lock handing on his door. On this, he went on the back side of his quarter and peeped from the window and saw that his wife Shanti Devi (one of the deceased) was lying dead in a naked condition. Suspecting her murder, report (Ext. A-1) was lodged. Nobody was named in the First Information Report. P.W. 7 Mahipal Singh Negi, Patwari with whom First Information Report was lodged, prepared check report (Ext. A-6). He Proceeded to the spot and got opened quarter of P.W. 1 Chandra Bahadur. He also visited neighbouring quarter, where he saw and found that another chaukidar Gainu Lal and his wife Nautri Devi are also murdered and their dead bodies are lying in their room. P.W. 7 Mahipal Singh, who started the investigation, took all the three dead bodies in his possession and prepared inquest reports (Ext. A-2, Ext. A-3 and Ext. A-5) in respect of the dead bodies of Gainu Lal, Naurti Devi and Shanti Devi respectively. The said Investigating Officer also prepared site plan (Ext. A-8). He collected blood stained soil from the quarter of Chandra Bahadur and prepared memorandum (Ext. A-12) and thereafter collected blood stained bed sheet from the house of Gainu Lal and prepared memorandum (Ext. A-13). Patwari also found one goggles (Ext. 1) from the house of deceased Gainu Lal and prepared memorandum (Ext. A-4). Dead bodies of Gainu Lal, Naurti Devi and Shanti Devi were sent for post mortem examination to District Hospital, Chamoli, where on 26.08.2002, autopsy was done by P.W. 10 Dr. Uttam Singh Mehta, who prepared post mortem examination reports (Ext. A- 21, Ext. A-22 and Ext. A-23) respectively. It appears that two days after investigation i.e. on 28.08.2002, the investigation was withdrawn from revenue officer and later, transferred to regular police. P.W. 9 Rishi Pal Singh, a police officer, took up further investigation. During investigation, name of accused/appellant Raj Kumar Kathaith, came to the light on interrogation of P.W. 4 Smt. Kamla Devi. On further investigation, P.W. 2 Miranu Lal on interrogation, disclosed that accused/appellant Raj Kumar Kathaith, made extra judicial confession to him. On this, Raj Kumar Kathaith was arrested on 15.10.2003. After his arrest, on his pointing out Khukri (Ext. 13), a sharp edged weapon, used in the crime was recovered by police from the government quarters near Fatehpur. A memorandum (Ext. A-17) of recovery was prepared by the police and site plan (Ext. A-18) of the place of recovery was also prepared. According to the prosecution, accused/appellant Raj Kumar Kathaith wanted to confess his guilt, as such, he was produced before Judicial Magistrate, P.W. 8 C.P. Bijalwan, who recorded the confessional statement (Ext. A-15). In said statement, Raj Kumar Kathaith, disclosed that accused/appellant Ram Singh was with him in commission of triple murder. At that point of time when the statement was recorded, accused/appellant Ram Singh was in jail in connection with another crime relating to offences punishable under Section 372, 302, 396 I.P.C. Production warrant was issued and sent against Ram Singh in jail. He was taken into judicial custody in connection of this case also. On completion of investigation, police submitted charge sheet (Ext. A- 20) against both the accused namely Raj Kumar Kathaith and Ram Singh for their trial in respect of offences punishable under Section 302 I.P.C. for commission of murder of Shanti Devi, Gainu Lal and Naurti Devi. 4. The Judicial Magistrate, on receipt of charge sheet, after giving necessary copies to the accused as required under Section 207 Cr.P.C., committed case to the court of Sessions for trial. Learned Sessions Judge, Rudraprayag, on 29.11.2003, after hearing the parties, framed charge of offence punishable under Section 302 read with Section 34 I.P.C. against two accused Raj Kumar Kathaith alias Vikram Singh Kathaith and Ram Singh, for commission of murder of Shanti Devi, Gainu Lal and Naurti Devi, to which the two pleaded not guilty and claimed to be tried. On this prosecution got examined P.W. 1 Chandra Bahadur (complainant), P.W. 2 Miranu Lal (before whom extra judicial confession is made by accused Raj Kumar), P.W. 3 Puran Lal (son of the deceased Gainu Lal and Naurti Devi), P.W. 4 Kamla (who identified the glasses of Raj Kumar and has thrown light on the motive of commission of crime and has stated that she saw Raj Kumar in a nervous condition soon after the incident), P.W. 5 Chaitu Lal, (witness of inquest report and that of the recovery of goggles), P.W. 6 Bhagat Singh, (witness of inquest report), P.W. 7 Mahipal Singh Negi (who started the investigation), P.W. 8 C.P. Bijalwan (who recorded the confessional statement of the accused Raj Kumar Kathaith), P.W. 9 Rishi Pal Singh (who completed the investigation), and P.W. 10 Dr. Uttam Singh Mehta (who conducted post mortem examination on the dead bodies of the three deceased). The oral and documentary evidence was put to the accused under Section 313 Cr.P.C. to which they alleged to be false. However, no evidence in defence is given by the accused. After hearing parties, learned trial court found both the accused guilty of offence punishable under Section 302 read with Section 34 I.P.C. for commission of murder of Shanti Devi, Gainu Lal and Naurti Devi. After hearing on sentence, the trial court sentenced each of the convicts to imprisonment for life under Section 302 read with Section 34 I.P.C. Aggrieved by said judgment and order dated 28.02.2004, criminal appeal No. 97 of 2004, is filed by Ram Singh and criminal appeal No. 130 of 2004, is got sent from jail by accused/appellant Raj Kumar Kathaith. 5. Before further discussions, it is pertinent to mention here the ante mortem injuries, found on the dead body of the deceased by P.W. 10 Dr. Uttam Singh Mehta, who prepared post mortem examination reports Ext. A-21 (in respect of dead body of Gainu Lal), Ext. 22 (in respect of dead body of Naurti Devi) and ext. A- 23 (in respect of dead body of deceased Shanti Devi). Ante mortem injuries found on the dead body of Shanti Devi:- 1. Incised wound 20cm X 2cm X brain deep over upper posterior part of head extending from left temporal region to right temporal region. 2. Incised wound 4cm X 0.5cm X muscular deep just lateral to the left deep just lateral to the left corner of left eye. 3. Incised wound 2cm X 0.5cm X skin deep just below the middle of left eye brow. 4. Lacerated wound 5cm X 0.5cm X skin deep over the back of left wrist joint. In the opinion of Medical Officer, cause of death was haemorrhage and shock as a result of ante mortem injuries. 1. Incised wound 8cm X 1cm X brain matter deep present over right temporal region through upper part of pinna of right ear. 2. Incised wound 3cm X 2cm X oral cavity deep present over upper part of right cheek. 3. Incised wound 7cm X 1.5cm X oral cavity deep over right side of mandible. In the opinion of the Medical Officer, cause of death of the deceased was haemorrhage and shock, as a result of ante mortem injuries. Ante mortem injuries found on the person of Naurti Devi:- 1. Incised wound 8cm X 1cm X brain matter deep present over upper and posterior part of left side of hear. 2. Incised wound 4cm X 0.5 cm X through and through over upper part of pinna of left ear. 3. Incised wound 4cm X 0.5cm X through & through over lower part of pinna of left ear. 4. Incised wound 3cm X 2cm bone deep (with mandible fracture) over left corner of lower lips. In the opinion of the Medical Officer, cause of death of the deceased was haemorrhage and shock, as a result of ante mortem injuries. 6. At the time of post mortem examination, dead bodies were found about 1 and ½ day old by the Medical Officer. The manner of commission of injuries and the other factors on record, clearly indicate that all the three deceased are murdered sometime in the intervening night of 24-25.08.2002. 7. Now, this Court has to see whether the prosecution has been successful in proving the charge of commission of murder against the accused/appellants or not. It is a case of circumstantial evidence. In such a case, chain of circumstances, must be proved by the prosecution so as to leave no reasonable doubt as to the commission of murder by the accused. There is also statement (Ext. A-15) under Section 164 Cr.P.C. of accused Raj Kumar Kathaith, recorded by P.W. 8 C.P. Bijalwan, Judicial Magistrate on 06.10.2003. However, said statement, in our opinion is of no help to the prosecution, as Magistrate has recorded said statement on oath. It is settled principle of law that a statement of accused cannot be recorded on oath under Section 164 Cr.P.C. Apart from this, such confessional statement is violative of sub-section (2) of Section 4 of Oaths Act, 1969, which reads as under:- “(2) Nothing in this section shall render it lawful to administer, in a criminal proceeding, a oath or affirmation to the accused person, unless he is examined as a witness for the defence, or necessary to administer to the official interpreter of any court, after he has entered on the execution of the duties of his office, an oath, or affirmation that he will faithfully discharge those duties.” In view of above provision, statement on oath, recorded by the Judicial Magistrate, is of no help against him. As against accused Ram Singh, on the mere statement of co-accused, he cannot be convicted, for he had no opportunity to cross examine the person making the statement against him. In these circumstances, now we have to examine the circumstantial evidence, adduced by the prosecution against the two accused. The evidence adduced by the prosecution before the trial court, proves following circumstances:- 1) It is established on record from the statement of P.W. 10 Dr. Uttam Singh Mehta who prepared the post mortem examination reports (Ext. A-21, Ext. A-22 and Ext. A-23) of Gainu Lal , Naurti Devi and Shanti Devi that all the three deceased died homicidal death and injuries found on the dead bodies could have been caused by Khukri (Ext. 7). 2) From the statement of P.W. 9 Rishipal Singh, it is proved on record that on the pointing out of accused/appellant Raj Kumar, Khukri (Ext. 7). used in the crime, was recovered in respect of which memorandum (Ext. A-17) was prepared. 3) From the statement of P.W. 5 Chaitu Lal, it is proved on record that at the time when inquest reports of dead bodies were being prepared, from the residence of Gainu Lal (deceased), goggles (Ext. 1) were recovered in respect of which P.W. 7 Mahipal Singh Negi, Patwari, prepared memorandum (Ext. A-4). 4) P.W. 4 Kamla, has proved that goggles (Ext. 1) are same goggles, which Raj Kumar used to put on. 5) P.W. 4 Kamla, has further proved on record that on 24.08.2002, at about 10:10 p.m. accused Raj Kumar was seen passing through in a nervous condition. The witness has further stated that on that day, accused/appellant Raj Kumar was wearing black pants, black coat but he had no goggles, which he used to put on whether it was day or night. 6) P.W. 4 Kamla has further indicated the motive of commission of crime that Shanti Devi (deceased) wife of complainant, along with accused/appellants Raj Kumar and Ram Singh used to go cinema in absence of Chandra Bahadur (complainant). 7) P.W. 3 Puran Lal, son of the deceased Gainu Lal and deceased Naurti Devi, has stated that on 24.08.2002, in the afternoon, he saw from his parents room, accused/appellants in the quarter of Chandra Bahadur (complainant). 8) P.W. 2 Miranu Lal has stated on oath that accused Raj Kumar Kathaith, long after the incident, admitted his guilt to him that he along with co- accused Ram Singh has committed murder of Gainu Lal, Naurti Devi and Shanti Devi. This witness giving full account of extra judicial confession, states that accused Raj Kumar, told him that he along with Ram Singh were enjoying drinks with Shanti Devi to which Gainu Lal objected. On this, Ram Singh, killed Gainu Lal with Khukri. This witness has further stated that when Naurti Devi started shouting, she was also killed with Khukri. Thereafter, Shanti Devi was also killed by both of them by Khukri and lathi. 8. The above eight circumstances, proved on record make a complete chain of circumstances, leaving no room of doubt that accused/appellant Raj Kumar Kathaith was directly involved in commission of three murders. However, as to the role of accused/appellant Ram Singh is concerned, the only evidence against him from the aforesaid circumstances, is that co-accused Raj Kumar Kathaith, has named him in extra judicial confession and on its basis it cannot be said that charge of offence punishable under Section 302 read with Section 34 I.P.C. is proved against him (Ram Singh). The statement of P.W. 3 Puran Lal simply discloses that he saw two men with Shanti Devi in the evening of 24.08.2002 and identified them in the court. But other linking evidence has not come on the record to establish the complete chain of circumstances against accused Ram Singh. Therefore, we are of the view that while the trial court has rightly convicted accused/appellant Raj Kumar Kathaith, for commission of murder of three namely Gainu Lal, Naurti Devi and Shanti Devi, it has erred in law in holding Ram Singh guilty of the offence punishable under Section 302 read with Section 34 I.P.C. as circumstantial evidence as against him does not form the complete chain. 9. On behalf of accused/appellant Raj Kumar, attention of this Court is drawn to Sandeep Vs. State of Haryana AIR 2001 Supreme Court Pg. 1103, and it is argued that where the accused has no reason to go to a witness to admit his guilt, such extra judicial confession cannot be relied upon. The facts in the present case are not similar to the one referred on behalf of the accused/appellant. In case of Sandeep (Supra) extra judicial confession was made on 18.03.1995 that on 15.03.1995, accused/appellant committed murder of the deceased. In the present case, long after commission of crime, accused admitted having murdered the three deceased. In the present case, it is possible that accused after a long gap of incident had no fear of being apprehended and he disclosed the commission of crime to P.W. 2 Miranu Lal, as he was not named in the First Information Report. 10. Having considered the submissions of learned counsel for the accused/appellant Ram Singh, learned counsel for accused/appellant Raj Kumar Kathaith and that of Additional Government Advocate, for the reasons, as discussed above, in our opinion criminal appeal N. 97 of 2004, deserves to be allowed and accused Ram Singh is entitled to benefit of doubt, as charge of offence cannot be said to be proved against him beyond reasonable doubt. However, as far as accused/appellant Raj Kumar is concerned, since the charge is fully proved beyond reasonable doubt against him that he committed murder of the three deceased, his conviction under Section 302 I.P.C. and sentence awarded to him by the trial court deserves to be affirmed. As such, criminal appeal No. 130 of 2004, is liable to be dismissed. Accordingly, criminal appeal No. 97 of 2004, is allowed. Conviction and sentence awarded by the trial court to Ram Singh, is set aside. Accused/appellant Ram Singh is given benefit of doubt and acquitted of charge of the offence punishable under Section 302 read with Section 34 I.P.C. However, criminal appeal No. 130 of 2004, is dismissed. Conviction under Section 302 I.P.C. and sentence of imprisonment for life awarded by the trial court against his is affirmed. Registry is directed to send the copy of this judgment to the Superintendent of Jail, where the convicts are lodged. Lower court record be sent back to the trial court. (Dharam Veer, J.) (Prafulla C. Pant, J.) Dt: 18.03.2008 Sweta