IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No.131 of 2003 Sanjay Bihari @ Gurdeen S/o Jeetu Shankar, R/o Ratanapur, P.S. Gularia, District Bardia (Nepal) …..Appellant (in Jail) Versus State of Uttaranchal (Uttarakhand) ….Respondent Smt. Pushpa Joshi, Advocate present for the appellant. Shri Amit Bhatt, A.G.A. present for the State. Dated: 6th May, 2011 Coram: Hon’ble Prafulla C. Pant, J. Hon’ble V.K. Bist, J. Prafulla C. Pant, J. (Oral) This appeal, preferred under Section 374 of Code of Criminal Procedure, 1973 (for short Cr.P.C), is directed against the judgment and order dated 27.03.2003 passed by Sessions Judge, Pithoragarh in Sessions Trial No.44 of 2001, whereby accused/ appellant Sanjay Bihari @ Gurdeen and one Jagdish Prasad @ Mausiya (co-accused) have been convicted under Section 302 read with Section 34, under Section 376 (2) (g), under Section 201, under Section 394 read with Section 34 and under Section 411 of Indian Penal Code, 1860 (for short I.P.C). Each one of them has been sentenced to imprisonment for life and directed to pay fine of ` 2,000/- under Section 302/34 I.P.C., rigorous imprisonment for a period of 10 years and directed to pay fine of ` 1,000/- under Section 376(2) (g) I.P.C., rigorous imprisonment for a period of 3 years and 2 directed to pay fine of ` 1,000/- under Section 201 I.P.C., rigorous imprisonment for a period of 7 years and directed to pay fine of ` 500/- under Section 394/34 I.P.C., and rigorous imprisonment for a period of 2 years under Section 411 I.P.C. 2. Heard learned counsel for the parties and perused the lower court record. 3. It is a case of double murder. Prosecution story, in brief, is that Sunita (one of the deceased) was widow of one Late Prem Ram of village Boyal, Tehsil Gangolihat, District Pithoragarh. After death of her husband, she got amount of General Provident Fund and other sums of her husband, which were deposited, in her name, in the State Bank of India, Branch Gangolihat. It appears that she did not have cordial relation with her mother-in-law and she took her minor son-Pawan (another deceased) to District Head Quarter Pithoragarh, for his studies. She (Sunita) started living in Lunthyura in Pithoragarh, as a tenant, in the house of P.W.3-Kushal Singh (informant). In the same house, accused/appellant Sanjay Bihari @ Gurdeen was also tenant, in another room. They had good acquaintance and accused/appellant Sanjay Bihari @ Gurdeen used to go in Sunita’s room. The young boy Pawan was aged 7-8 years, who used to go to school. Sunita was desirous to buy a house in Pithoragarh to settle her family permanently. She disclosed about it to accused/ appellant Sanjay Bihari @ Gurdeen, who got her in touch with co-accused Jagdish Prasad @ Mausiya. The two accused took her (Sunita) to Bin (in Pithoragarh) pretending to get the deal settled regarding purchase of house of P.W.14-Khumman Lal, who wanted to sell his house. He (P.W.14) wanted to sell his house for ` 1, 50, 000/- and Sunita agreed to pay ` 1, 25, 000/-, for the house. On 18.06.2001, Sunita went to Gangolihat in the morning with her nephew Suresh Ram (P.W.15) and withdrew an amount of ` 1, 25, 000/-. She came back on the same day to Pithoragarh. Accused/ appellant Sanjay Bihari @ Gurdeen and co-accused Jagdish Prasad knew that Sunita had withdrawn the amount. Thereafter, on 19.06.2001 at 8:30 p.m. Sunita was last seen by Naveen Ram (P.W.7) going with Jagdish Prasad and accused/ appellant Sanjay Bihari @ Gurdeen from Lunthyura. Before they were sent last, P.W.9-Mohini Devi (wife of Kushal Singh-landlord) saw that at about 6:00 p.m. on 19.06.2001 accused/ appellant Sanjay Bihari @ Gurdeen and Sunita were in their rooms, but after sometime when she went to deliver milk to Sunita, who used to buy the same from her, she found that doors of both the tenants were locked. On 21.06.2001 at about 8:30 p.m. P.W.4-Balbir Singh Mahar, Village Pradhan, received information that an unknown woman was lying unconscious in a hut in village Bin, near his house. He (P.W.4) went at 6:30 a.m. on 22.06.2001 and found that the woman was lying dead in the hut adjoining the house of Khumman Lal. He informed about it at Police Station Kotwali, Pithoragarh. P.W.13-A.S.I. Laxmi Dutt Bhatt made entry in the General Dairy about the information received, whereafter Sub Inspector Puran Chandra 4 Pandey (P.W.10), alongwith police force, went to the house of Khumman Lal and took dead body in his possession and prepared Inquest Report (Ext.A-7) and other necessary papers i.e. sketch of the dead body (Ext.A-12), Police Form no.13 (Ext.A-13), letter to Chief Medical Officer (Ext.A-14) requesting for post mortem examination and Sample Seal (Ext.A-15). Post mortem examination was conducted by P.W.5-Dr. Ramesh Chandra Punetha on 22.06.2001 at 3:15 p.m., who prepared Autopsy Report (Ext.A-9). The Medical Officer found that dead body was swollen, decomposition had started and maggots were present in the body. Though, he found that there was a DUPATTA tied around neck of the deceased, but there was no mark of injury around the neck. The Medical Officer could not opine cause of death, and viscera was preserved for analysis. Three days thereafter, on 25.06.2001, P.W.3 Kushal Singh, landlord of Sunita, in Lunthyura, while going alongwith his wife towards cowshed, felt foul smell coming from the locked room of Sunita. On this, he (P.W.3) and his wife (P.W.9) called the neighbours, and suspecting something foul, they got the doors broken and entered in the house. When they went inside the house, dead body of Pawan (son of Sunita) was found in lying, in a decomposed position, on a bed. On this, P.W.3-Kushal Singh gave a written First Information Report (Ext.A-2) at Police Station Kotwali, Pithoragarh at about 10:15 p.m. (22:15 hrs.) on 25.06.2001, on the basis of which crime no. 846 of 2001 was registered relating to offence punishable under Section 302 I.P.C. against unknown persons. Investigation was taken up by P.W.16 In-charge Inspector Devendra Singh Negi, who went to the spot, with the necessary Police force and took dead body of the boy in his possession and got prepared Inquest Report (Ext.A-18), Sketch of dead body (Ext.A-19), Sample Seal (Ext.A-20), Police Form No.13 (Ext.A-21) and letter to Chief Medical Officer (Ext.A-22). Post mortem examination on the dead body of Pawan, aged 7-8 years, was conducted by P.W.6-Dr. P.C. Pant on 22.06.2001 at about 11:15 a.m., who prepared Autopsy Report (Ext.A-10). This body was also found in a decomposed condition and maggots were present. No external injury was found on the dead body. The Medical Officer (P.W.6) could not ascertain cause of death of Pawan, and viscera was preserved for analysis. During investigation, accused/appellant Sanjay Bihari @ Gurdeen, who was absconding from his house in Lunthyura, was arrested on 04.07.2001 at Tanakpur. Subsequently, co-accused Jagdish Prasad was also arrested on 28.07.2001 in Tanakpur. At the time of arrest, from accused/appellant Sanjay ` 20,000/- were recovered, regarding which memo (Ext.A-28) was prepared by the Police. From the possession of co-accused Jagdish Prasad ` 7,200/- were recovered, regarding which memo (Ext.A-11) was prepared. After interrogating witnesses, inspecting spot, and collecting necessary material from the place of incident, the Investigation Officer submitted charge sheet (Ext.A-31) against accused Sanjay Bihari @ Gurdeen and Jagdish Thekedar @ Mausiya for their trial in respect of offences punishable under Section 302, 394, 376, 201 and 411 I.P.C. 6 4. The Chief 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. Meanwhile, reports were received from the Forensic Laboratory, Agra. Report relating to viscera of Sunita (Ext.A-33), disclosed that all the five parts i.e. stomach, piece of intestine, piece of liver, one kidney & spleen, of viscera contained alcohol and organo chloro insecticide poison. The viscera report (Ext.A-34), relating to piece of intestine, piece of liver and spleen of Pawan disclosed that in all the three parts organo chloro insecticide poison was present. Also report dated 30th July, 2002 (Ext.A-32) was received from the Forensic Laboratory, Agra, which indicated that hairs (pubic) of deceased Sunita contained human semen. 5. After hearing the parties, on 01.10.2001, the trial court framed charge of offences punishable under Section 302 read with Section 34 I.P.C. (relating to murder of Sunita) and under Section 376 (2)(g) I.P.C. (relating to rape of Sunita), another offence punishable under Section 302/34 I.P.C. (relating to murder of Pawan, aged 8 years), under Section 394 read with Section 34 I.P.C. (relating to robbery of money, passbook and other items of Sunita) under Section 411 I.P.C. (relating to recovery of the looted articles) and under Section 201 I.P.C. (for keeping dead body of Pawan, locked) against the accused/appellant Sanjay Bihari and accused Jagdish. Both pleaded not guilty and claimed to be tried. Amended charge was framed by the trial court on 13.03.2003 in respect of same offences, to which also the accused pleaded not guilty and claimed to be tried. 6. The prosecution, in support of its case got examined P.W.1-Gopal Ram (brother of deceased Sunita) in whose presence one of the slippers of accused Sanjay Bihari @ Gurdeen was recovered from the place where dead body of Sunita was lying, P.W.2- Jeewan Lal S/o Khumman Lal, who saw a woman (Sunita) lying on a cot in his house and informed Village Pradhan-Balbeer Singh Mahar, P.W.3-Kushal Singh (informant) landlord of Sunita in village Lunthyura where body of Pawan was found, P.W.4- Balbeer Singh Mahar-Village Pradhan, who informed Police about dead body of Sunita lying in Bin in the house of Khumman Lal, P.W.5-Dr. Ramesh Chandra Punetha, who conducted post mortem examination on the dead body of Sunita, P.W.6-Dr. P.C. Pant, who conducted post mortem examination on the dead body of Pawan (son of Sunita), P.W.7-Naveen Ram (a relation of Sunita), who last saw accused/appellant Sanjay Bihari @ Gurdeen and Jagdish Prasad going with Sunita (deceased) on 19.06.2001 at about 8:30 p.m., P.W.8-Constable Bachi Singh Bisht in whose presence accused/appellant Sanjay Bihari @ Gurdeen was arrested on 04.07.2001 and co-accused Jagdish Prasad was arrested on 28.07.2001 and recovery memo was made at the time of their arrest by the Investigating Officer, P.W.9-Smt. Mohani Devi (wife of the landlord), who saw on 19.06.2001 rooms of accused Sanjay Bihari @ Gurdeen and Sunita lying locked sometime after 6:00 p.m., P.W.10-Sub Inspector Puran Chandra Pandey, who prepared Inquest Report of the dead body of Sunita, P.W.11-A.S.I. Rajesh Singh, who prepared Check Report of First Information Report lodged by informant and made entry in the General Diary, P.W.12-Sub Inspector G.L. Morya, who prepared Inquest Report of dead body of Pawan (a minor boy), P.W.13-A.S.I. Laxmi Dutt Bhatt, who made entry in the General Diary regarding information received, that dead body of a woman is lying in Bin, P.W.14- Khumman Lal with whom deceased came to finalize deal with accused Sanjay Bihari and Jagdish Prasad, a couple of days before the incident, P.W.15-Suresh Ram, a relation of Sunita Devi, with whom she went on 18.06.2001 to withdraw an amount of ` 1,25,000/- from bank and P.W.16-Devendra Singh Negi, the Investigating Officer. 7. Oral and documentary evidence was put to the accused by the trial court under Section 313 Cr.P.C., in reply to which accused/appellant Sanjay Bihari @ Gurdeen admitted that he was tenant of Kushal Singh (P.W.3) but regarding rest of the evidence, he alleged same to be false. Co-accused Jagdish Prasad also pleaded that evidence adduced against him, was false however he stated that ` 7,200/- recovered from him at the time of arrest, was his own earning and not the looted amount. No evidence, in defence, was adduced. The trial court after hearing the parties found that prosecution has successfully proved the charge of 9 offence punishable under Section 302/34, 376 (2)(g), 201, 394/34 and 411 I.P.C. Accordingly, both of them were convicted. After hearing on sentence, the trial court sentenced each one of the convicts to imprisonment for life and directed to pay fine of fine of ` 2,000/- under Section 302/34 I.P.C., rigorous imprisonment for a period of 10 years and directed to pay fine of ` 1,000/- under Section 376(2) (g) I.P.C., rigorous imprisonment for a period of 3 years and directed to pay fine of ` 1,000/- under Section 201 I.P.C., rigorous imprisonment for a period of 7 years and directed to pay fine of ` 500/- under Section 394/34 I.P.C., and rigorous imprisonment for a period of 2 years under Section 411 I.P.C. 8. We have already discussed above, that after the Autopsy conducted on the dead body of Sunita and Pawan by P.W.5-Dr. Ramesh Chandra Punetha and P.W.6-Dr. P.C. Pant, respectively, cause of death of the mother and son could not be ascertained, and viscera was preserved. The Forensic Laboratory report (Ext.A- 33) relating to viscera taken from the dead body of Sunita and report (Ext.A-34) relating to viscera taken from the dead body of Pawan disclosed that all the contents of viscera of both the deceased contained organo chloro insecticide (poison). The viscera report of deceased Sunita further shows that there were alcohol contents also in the pieces taken from her body. Both the reports, if read together, clearly suggest that the two deceased were administered poison. Yet another report (Ext.A-32), which relates to chemical examination of hairs and clothes of the deceased, shows that in the hairs (pubic) of deceased Sunita human semen was found present, though the same was not found fit for further classification. This report indicates that Sunita was subjected to rape before she died. We have examined the evidence on record to see as to whether the accused/appellant Sanjay Bihari @ Gurdeen, with common intention, alongwith co- accused Jagdish Prasad, committed murder of the two (mother and son), after committing rape on Sunita. We have examined, whether Sunita was robbed of her movable property and whether any part of such movable property was recovered from the possession of accused/appellant. Lastly, we also scrutinized the evidence to see whether in order to cause disappearance of the dead body of Pawan, accused/ appellant Sanjay Bihari @ Gurdeen locked the room of Sunita. 9. It is a case of circumstantial evidence. Following are the circumstances, established on record, against the accused/appellant Sanjay Bihari @ Gurdeen:- (i) P.W.1-Gopal Ram (brother of the deceased) and P.W.3-Kushal Singh (landlord of the deceased Sunita) have given specific evidence that accused Sanjay Bihari @ Gurdeen and Sunita used to live in separate tenements in the house of Kushal Singh, as tenants and accused Sanjay Bihari @ Gurdeen used to go in the room of Sunita. 11 (ii) P.W.15-Suresh Ram (nephew of the deceased Sunita) has proved that on 18.06.2001, Sunita went with him in the morning to State Bank of India, Branch Gangolihat and withdrew her amount of ` 1,25,000/- for purchasing a house and came back to Pithoragarh on the same day, and it is also disclosed by this witness that accused Sanjay Bihari was in know of the fact that the money has been withdrawn. (iii) P.W.14-Khumman Lal has proved that couple of days before the incident, Sunita came to him alongwith Jagdish Prasad and another person accused Sanjay Bihari, and they had a talk regarding purchase of his house. He further states that after said talks, he had gone to his native village in Madhya Pradesh, where he was informed that body of a woman was found lying in a hut in front of his house. (iv) P.W.9-Smt. Mohani Devi (wife of Kushal Singh-landlord) has proved on the record that on 19.06.2001 upto 6:00 p.m., accused Sanjay Bihari and deceased Sunita were in their rooms, but after sometime, when she went to deliver milk (which was being supplied by her to Sunita) both the rooms were found locked. (v) P.W.7-Naveen Ram has proved that on 19.06.2001 at about 8:30 p.m., he saw accused Jagdish Prasad going alongwith Sunita, and accused Sanjay Bihari, following the two. This witness has given last seen evidence against the accused, with Sunita. (vi) P.W.4-Village Pradhan, Balbeer Singh Mahar, has proved that he was given information on 21.06.2001 at about 8:30 p.m. that a woman was lying on a cot near the house of Khumman Lal and unable to wake up. This witness has further stated that on 22.06.2001 at 6:30 a.m., he went there and saw that the woman was dead. The witness has further proved that he gave information to the Police, and Inquest Report (Ext.A-6) was prepared by the Police in his presence. (vii) Though, in the post mortem examination, P.W.5-Dr. Ramesh Chandra Punetha could not ascertain cause of death of the deceased, but viscera taken from the body of Sunita was sent for analysis, and report (Ext.A-33) shows that all the five parts i.e. stomach, piece of intestine, piece of liver, piece of kidney and piece of spleen contained alcohol and organo chloro insecticide (poison), which suggests that she was administered alcohol and poison. Forensic Science Laboratory report (Ext.A-32) further disclosed that hairs of the deceased, which were collected by the Police, during investigation, and sent for chemical analysis, contained human semen and spermatozoa, which indicates that the deceased was subjected to rape before her death. (viii) P.W.3-Kushal Singh (informant, who was also landlord of Sunita) has stated that on 25.06.2001 when he, alongwith his wife, was going towards cowshed, he felt foul smell from the locked room of Sunita and called the neighbours, whereafter the doors were broken and it was found that dead body of Pawan was lying on the bed. The witness has further proved that he lodged First Information Report (Ext.A-2) at the Police Station Kotwali, Pithoragarh and Inquest Report was prepared by the Police. (ix) Though, cause of death of Pawan also could not be ascertained by P.W.6-Dr. P.C. Pant, who conducted post mortem examination on his dead body on 26.06.2001, but viscera was preserved, and sent for chemical analysis. Report (Ext.A-34) received from the Forensic Laboratory shows that all the three contents, namely, piece of intestine, piece of liver and spleen of the boy contained organo chloro insecticide (poison). This clearly suggests that the boy was murdered by administrating poison to him. (x) During investigation, it is proved by P.W.1- Gopal Ram (brother of the deceased Sunita) and P.W.16-Devendra Singh Negi, Investigating Officer that one of the slippers of accused Sanjay Bihari was found under 14 the cot on which the dead body of Sunita was lying, regarding which recovery memo (Ext.A-1) was prepared. (xi) P.W.8-Constable Bachi Singh Bisht and P.W.16-Devendra Singh Negi, Investigating Officer have proved that the accused/ appellant Sanjay Bihari was arrested on 04.07.2001 at Tanakpur and from his possession ` 20,000/- was recovered. The two witnesses have further stated that on 28.07.2001 another co-accused Jagdish Prasad was also arrested in Tanakpur and ` 7,200/- and the passbook of bank account of Sunita was recovered, and recovery memos were prepared, which were signed by the respective accused. (xii) Lastly, it is relevant to mention here that both the accused/appellant Sanjay Bihari @ and co-accused Jagdish Prasad absconded from their places of residence, after the incident. 10. From the above circumstantial evidence on record, we find that chain of circumstances is complete against the accused/appellant Sanjay Bihari, and we concur with the findings recorded by the trial court. 11. On behalf of the appellant, our attention is drawn that there is no eyewitness of commission of murder, and merely for the reason that the accused/appellant Sanjay Bihari was neighbour of Sunita, he can not be held guilty of the charge. In this connection, it is submitted that the amount, said to have been recovered from the accused, is not connected with the looted amount of ` 1,25,000/- from the deceased. Having reassessed the evidence on record, we are of the view that ` 20,000/- cash could not be planted falsely by the Police. It is also pleaded on behalf of the present appellant that had the slipper of the appellant being found under the cot, it could have been collected on the day, the dead body was taken into possession by the Police. We do not find force in the submission advanced on behalf of the appellant, for the reason that at the time when the Inquest Report of the dead body of Sunita was prepared, there was no crime registered at the Police Station nor any investigation was on. It is only after the dead body of Pawan was recovered and a case of murder was registered, the Investigating Officer collected the evidence from the two places of incident. Lastly, it is submitted on behalf of accused/appellant Sanjay Bihari that from the evidence on record, it appears that many other persons also used to visit Sunita and she was not a woman of good character, as such, the commission of crime by the other persons cannot be ruled out. We have carefully gone through the evidence on record and find that had that been so, accused/appellant would not have been absconded from Pithoragarh. 12. For the reasons, as discussed above, we do not find force in this appeal, which is liable to be dismissed. Accordingly, the appeal is dismissed. 16 Impugned judgment and order dated 27.03.2003 passed by Sessions Judge, Pithoragarh in Sessions Trial No.44 of 2001, is hereby upheld. Let a copy of this judgment be sent to Superintendent of the Jail concerned. Lower court record be sent back. (V.K. Bist, J.) (Prafulla C. Pant, J.) 06.05.2011 Arpan