IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Jail Appeal No. 2000 of 2001 Arjun Nath (In Jail) S/o Nain Nath R/o Village Vaste Chaitoli Khet Tehsil and District Pithoragarh. ……Appellant. Versus State of Uttarakhand. .……….Respondent. Shri Rajendra Singh, Advocate (Amicus Curiae) for the appellant. Shri Harish Pujari, A.G.A. for the State. Coram:Hon’ble Prafulla C. Pant, J. Hon’ble B.S. Verma, J. Oral:-Hon’ble Prafulla C. Pant, J. This appeal, has been received through Superintendent District Jail, Almora, filed on behalf of Arjun Nath (appellant). He has challenged judgment and order dated 27.11.2001, passed by learned Sessions Judge, Pithoragarh, in Sessions Trial No. 04 of 1999, whereby he has been convicted under Section 302 and 394 of Indian Penal Code, 1860 (herein after referred as I.P.C.). Convict Arjun Nath has been sentenced to imprisonment for life and directed to pay fine of Rs. 5,000/- (under Section 302 I.P.C.), and rigorous imprisonment for a period of five years and further directed to pay fine of Rs. 5,000/- (under Section 394 I.P.C.) 2 2. Heard Shri Rajendra Singh, Amicus Curiae for the appellant and Shri Harish Pujari, A.G.A. for the State and perused the lower court record. 3. Prosecution story in brief is that on 08.11.1998, in the morning, Dhana Devi (deceased), resident of Village Vaste Chamna, left for her parental house (in Chamali) and told her husband Ganesh Singh (P.W. 7) that she would come back by the evening. P.W. 1 Umakant, resident of Village Dungri, met her when she was on way to her parental house. The witness (Umakant) also saw accused/appellant Arjun Nath near Tulsi Dhar. In the evening Dhana Devi, did not come back to her husband’s house at Vaste Chamna. The distance between the two villages, parental house and matrimonial house of the deceased was 10-15 Kms. When Dhana Devi did not come back, her husband Ganesh Singh (P.W. 7) made enquiries from his in-laws on the next day i.e. 09.11.1998, in Village Chamali. There, he was told that Dhana Devi had not reached to her parental house. On this, Ganesh Singh and other villagers started making search for Dhana Devi. On 10.11.1998, P.W. 1 Umakant, who was on his way to Village Kinigarh, met Ganesh Singh and other villagers of Village Vaste, who were searching for Dhana Devi. The witness (Umakant) told husband of Dhana Devi that he saw her (deceased) on 08.11.1998 near Tulsigair and after wishing him she told that she was going to her parental house. Thereafter, search was continued. A relative from parental side of Dhani Devi near Kumariya Gadatok, 3 found her bag and there were marks of dragging. They followed the dragging marks and saw that dead body of Dhana Devi was lying in bushes. On the very day (10.11.1998), information (Ext. A-13) was given to the Patwari of the area through Naib Tehsildar. (In the interior hills of Uttarakhand revenue officials are given police powers under U.P. Government Notification No. 494/VIII-418-16, dated 07.03.1916). On the basis of said information, check report (Ext. A- 18) was prepared in the office of Supervisory Kanoongo and crime No. 01 of 1998, was registered against unknown persons, relating to offences punishable under Sections 302 and 394 I.P.C. as gold jewellery was found missing from the body of the deceased. Shri Ramesh Chandra Punetha (P.W. 5) Patwari of Village Vaste, reached at the spot on the very day (10.11.1998) and took dead body in his possession and prepared inquest report (Ext. A-1) at about 2:00 p.m. He also got prepared sketch of the dead body (Ext. A-10), police form No. 13 (Ext. A-9), letter to Chief Medical Officer (Ext. A-11) and sample seal (Ext. A-12). Dead body was sent for post mortem examination. P.W. 2 Dr. Chandra Mohan Singh Dhami of District Hospital, Pithoragarh, conducted post mortem examination on 11.11.1998, at about 10.00 a.m. He found eleven marks of ante mortem injuries on the body of the deceased and prepared autopsy report (Ext. A-2). The Medical Officer opined that deceased had died due to haemorrhage and shock as a result of ante mortem injuries. Keshav Dutt, Supervisory Kanoongo (P.W. 10) investigated 4 the crime. He interrogated the witnesses. When name of accused Arjun Nath came to light during investigation, he was taken into custody and produced before the Judicial Magistrate, Pithoragarh. He was interrogated and on 15.11.1998, recovery of knife used in the crime and some part of jewellery was also recovered on pointing out of the accused. Thereafter, he was produced before Shri Alok Verma (P.W. 8), Judicial Magistrate, Pithoragarh, on 16.11.1998, for recording the statement of Arjun Nath (accused/appellant) under Section 164 of Cr.P.C. Said Judicial Magistrate told the accused/appellant that he was not bound to make any confessional statement, as the same can be used against him. Statement (Ext. A- 15) was recorded by Shri Alok Verma (Judicial Magistrate, Pithoragarh) on 18.11.1998, in which accused/appellant Arjun Nath admitted having murdered Dhana Devi and robbed her of the jewellery. The Investigating Officer, thereafter on further interrogation reached to Basant Lal (P.W. 4), a jeweller to whom gold ear-rings (part of robbed jewellery) were sold by accused/appellant Arjun Nath on 09.11.1998. Simple soil, blood stained soil, blood stained knife, shirt of accused/appellant Arjun Nath and dhoti, petticoat, blouse and brassiere of the deceased after being recovered, were sent to Forensic Laboratory. The Forensic Laboratory on examination, reported that the seven items, contained human blood. After completing investigation, the Investigating Officer, submitted charge sheet (Ext. A-21) against 5 accused/appellant Arjun Nath for his trial in respect of offences punishable under Sections 302 and 394 I.P.C. 4. The Magistrate, on receipt of the charge sheet, after giving necessary copies to the accused, as required under Section 207 of Cr.P.C., committed the case to the Court of Sessions, for trial. Learned Sessions Judge, Pithoragarh, after hearing the parties on 29.05.1999, framed charge of offences punishable under Sections 302 and 394 I.P.C., against the accused Arjun Nath, who pleaded not guilty and claimed to be tried. On this prosecution got examined P.W. 1 Umakant (who had last seen the accused and deceased on 08.11.1998 in Kafaligair and Kafalidhar respectively), P.W. 2 Dr. Chandra Mohan Singh Dhami (who conducted post mortem examination), P.W. 3 Sher Singh (who made search along with other villagers when the deceased did not return back to her house on 08.11.1998), P.W. 4 Basant Lal (to whom accused sold two gold ear-rings on next day of the incident), P.W. 5 Ramesh Chandra Punetha, Patwari (who prepared the inquest report and other necessary papers), P.W. 6 Ratan Singh (father of the deceased), P.W. 7 (husband of the deceased), P.W. 8 Shri Alok Verma (Judicial Magistrate, who recorded statement of accused under Section 164 Cr.P.C.), P.W. 9 Subhash Uttam, Sub-Divisional-Magistrate (who conducted identification of the recovered jewellery) and P.W. 10 Keshav Dutt, Supervisory Kanoongo (who investigated the crime). Oral and documentary evidence was put to the accused under Section 313 6 Cr.P.C. In reply to which he alleged the same to be false. He retreated from the confession made before the Magistrate, by him. 5. However, no evidence in defence was adduced. After hearing the parties, the trial court found accused/appellant guilty of charge of offence punishable under Section 394 and 302 I.P.C. After hearing on sentence, accused/appellant was sentenced by the trial court to imprisonment for life and directed to pay fine of Rs. 5,000/- under Section 302 I.P.C., and sentenced to rigorous imprisonment for a period of five years and also further directed to pay fine of Rs. 5,000/- under Section 394 I.P.C. Aggrieved by said judgment and order dated 27.11.1999, passed by Sessions Judge, Pithoragarh, in Sessions Trial No. 4 of 1999, this appeal was got sent by the convict through the Superintendent jail. 6. Before further discussions, we think it just and proper to mention the ante mortem injuries, recorded by P.W. 2 Dr. Chandra Mohan Singh, who conducted post mortem examination on 11.11.1998, at about 10:00 a.m. on the dead body of Dhana Devi and prepared autopsy report (Ext. A-2). The ante mortem injuries, are being reproduced below:- 1. Rounded wound on right cheek, 4cm in size, margins irregular, clot seen. 2. Wound over forehead, 2cm X 1cm in size, having blood clot. 7 3. Wound over the right to maxilla, 3cm X 2cm in size, blood clot present. Margins irregular. 4. Deep wound on the back of neck, 26cm X 12cms, from left to right, bone deep. Second and third cervical vertebra cut over them, present posteriorly, clot with maggots present involving underneath soft tissue. 5. Wound 2cm above injury No. 4, on the left side, size 3cm X 4cm deep. Blood clots and maggots present. 6. Wound over left side of neck, 8cm X 5cm, 3cm above injury No. 5. 7. Half of the right pinna was cut on lower part, margins were irregular. 8. Tragus of left pinna was cut. Maggots present. 9. Cut over all four fingers of left hand except thumb. 10. Wound over back, 8c, below superior iliac crest. 11. Wound over back of head, left side 6cm X 3cm, bone deep. Maggots present. On internal examination, Medical Officer found that there were clots on the base of the skull. Mucus 8 membranes of larynx was pale, pleura was pale. Pericardium was pale, both chambers of heart were empty. Medical Officer opined that the deceased had died some 3 ½ days before. He further opined that injury No. 2 could have been caused by knife. P.W. 2 Dr. Chandra Mohan Singh Dhami, further states that at the time of post mortem examination, opinion of Dr. M.D. Bhatt was also obtained and he also concurred with the report. Both the doctors opined that cause of death was haemorrhage and shock, as a result of ante mortem injuries. The evidence of P.W. 2 Chandra Mohan Singh Dhami read with the autopsy report (Ext. A-2) establishes on record that Dhani Devi has died homicidal death on 09.11.1998. Injuries on ear and fingers suggest that she was robbed of the jewellery. Now, this Court as to see whether accused/appellant Arjun Nath, committed murder of Dhani Devi (deceased) or not. 7. We have reassessed the entire oral and documentary testimony and found that to prove the charge following circumstances are established on the record against accused/appellant Arjun Nath:- (1) P.W. 1 Uma Kant on 09.11.1998, saw deceased at Tulsi Gair (word ‘Gair’ means down in the hill) going from her husband’s village to her parental village. He further saw accused/appellant Arjun Nath near Tulsi Dhar (word ‘Dhar’ in the hills means ridge) on that day. 9 (2) P.W. 2 Dr. Chandra Mohan Singh Dhami, who prepared autopsy report (Ext. A-2) after post mortem examination of Dhana Devi (deceased) opined that she has died of haemorrhage and shock. He has recorded as many as 11 ante mortem injuries. Injury No. 4 according to this witness appears to have been caused by a knife (deadly weapon) on vital part of the deceased. The witness has further stated that right pinna was cut. There was cut between tragus and pinna in the left ear also suggesting that ear-rings were snatched and looted. Similarly there were cut in four fingers of the left hand, suggesting offence of similar nature. (3) P.W. 7 Ganesh Singh, husband of the deceased has stated that in the morning on 08.11.1998, his wife Dhana Devi (deceased) left for her parental house, village Chamali and told him that she would come back by evening. (4) P.W. 6 Ratan Singh, father of the deceased has stated that Dhana Devi (deceased) did not reach to his house and next day, on receiving information, search was started for her. (5) P.W. 10 Keshav Dutt, has stated that during investigation, he recovered stolen articles and knife on pointing out of the accused/appellant, after his name came into light in the investigation. Memorandum (Ext. A-20) was prepared for recovery of the knife. Similarly, memorandum 10 (Ext. A-5) was prepared for recovery of some of the articles looted on pointing out of the accused. (6) P.W. 9 Subhash Uttam, Sub-Divisional Magistrate has stated on oath that he got the identification proceedings conducted of the looted jewellery, recovered at the instance of accused/appellant Arjun Nath. (7) P.W. 8 Alok Verma, Judicial Magistrate, recorded statement of the accused under Section 164 Cr.P.C. on 18.11.1998 after warning him that he was not bound to make statement, as the same may be used against him. He has stated on oath that on 16.11.1998, he warned him to that effect and he thereafter was produced on 18.11.1998, and his statement (Ext. A-15) was recorded under Section 164 Cr.P.C. Ext. A-15 shows that accused confessed the guilt having killed Dhana Devi and looted the jewellery. Statement was recorded by Judicial Magistrate in question and answers form so that nothing can be left vague. This is very convincing evidence on record. In his examination under Section 164 Cr.P.C. the accused has also admitted that recovery was made from him by the Investigating Officer. He further admitted under Section 164 Cr.P.C. that he sold some of the articles to one Jeweller in Pithoragarh market. (8) P.W. 4 Basant Lal, a jeweller of Purana Bazar, Pithoragarh, has stated on oath before the 11 court that on 09.11.1998, accused/appellant brought to him two gold ear-rings and sold to him for Rs. 5,100/-. The witness further states that on 20.11.1998, Investigating Officer came to him and interrogated him. And recovery of those two ear- rings (Ext. 4) were made and memorandum (Ext. A-8) was prepared. (9) Report of Forensic Laboratory, which is on record, shows articles 1 to 7, namely blood stained soil, knife recovered, shirt of the accused/appellant, dhoti, petticoat, blouse and brassiere of the deceased contained stains of human blood. Having gone through the entire evidence, as discussed above, we are of the view that chain of circumstances as against accused/appellant Arjun Nath that he committed murder of Dhani Devi and robbed her jewellery, is proved beyond all reasonable doubt. As such, we concur with the finding recorded by the trial court. 8. Learned Amicus Curiae on behalf of the appellant pointed out that accused has retreated the confession at the stage of the charge and statement under Section 313 Cr.P.C. and weight cannot be given to the statement under Section 164 Cr.P.C. but the statement of P.W. 8 Shri Alok Verma, Judicial Magistrate, read with the statement recorded by him under Section 164 Cr.P.C. (Ext. A-15), which is in the form of question and answer, after giving the accused due warning earlier, this Court finds that there was no 12 undue pressure on the accused/appellant to make the statement, as it has come on the record that Investigating Officer was kept away at the time of recording said statement. 9. On behalf of the appellant, it is further contended that chain of circumstances is not complete. We have already narrated the chain of circumstances and the evidence by which it is proved. In our opinion, there is nothing, which shows that the chain of circumstances is incomplete. As such, we do not find force in the argument, advanced on behalf of the appellant. 10. For the reasons as discussed above, this appeal has no force. The same is liable to be dismissed. The appeal is dismissed. Conviction and sentence awarded against appellant Arjun Nath by the trial court are affirmed. Registry is directed to send back record of this case to the trial court. It is further directed that copy of this judgment be sent free of cost to the accused/appellant through the Superintendent of the jail concerned. (B.S. Verma, J.) (Prafulla C. Pant, J.) Dt:18.06.2009 Sweta 13 14 15 16 17 18