IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No. 162 of 2009 Ganesh Ram Versus .…. Appellant/Accused State of Uttarakhand …………… Respondent May 11, 2010 Mr. Pawan Mishra, Advocate for the appellant. Mr. Amit Bhatt, Addl. GA for the State/respondent. HON’BLE DHARAM VEER, J. 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 1.2.2008 passed by the Sessions Judge, Nainital in Sessions Trial No. 59 of 2007, State v. Ganesh Ram, whereby the accused appellant Ganesh Ram has been convicted under Section 304 of Indian Penal Code, 1860 (for short, IPC) and sentenced to undergo R.I. for seven years along with fine of Rs. 25,000/- and in default of payment of fine, he has further been directed to undergo six months’ additional simple imprisonment. 2. In brief, the prosecution case is that PW3 Chani Ram lodged an FIR Ex. Ka-2 with PS Ramnagar on 8.3.2007 at 3.30 pm with the averments that his daughter Smt. Indra Devi was living with her maternal brother-in-law Ganesh Ram (appellant accused). On that day i.e. on 8.3.2007, she had gone along with Smt. Shanti Devi (PW4), Smt. Bachuli Devi (PW1), Smt. Leela Devi (PW10), Smt. Indra Devi (PW2) and Smt. Ganguli Devi (PW9) to the forest to collect the woods, where hot talks took place between his daughter Indra Devi and the accused appellant Ganesh Ram, who had also gone there to cut the woods. The 2 accused appellant suddenly became very angry and assaulted his daughter Indra Devi with the wood at 11.30 am. On hearing the noise of his daughter, other women who had gone along with her came at the place of occurrence and on seeing them, the accused appellant ran away from the place of occurrence along with the said wood. His daughter died on the spot. The women who were accompanying his daughter brought the deceased to her house with the help of woods. Thereafter his grandson Arjun informed him that his mother (deceased Indra Devi) was murdered in the forest and her dead body was lying in the house. Thereafter the complainant immediately came there and found his daughter to be dead. On the basis of this report, chick FIR Ex. Ka-10 was prepared by PW7 Constable Clerk Gurdeep Singh. He also made the necessary entries in the GD. Copy of GD is Ex. Ka-11. Investigation of this case was initially entrusted to PW6 SI Sallauddin and subsequently the investigation was transferred to PW8 SI Nanda Ballabh Batt. On the same day i.e. on 8.3.2007, the inquest report Ex. Ka-3 was prepared by the I.O. (PW6 SI Salauddin). Along with the inquest report other relevant papers, viz., photo lash Ex. Ka-6, police form no. 13 Ex. Ka-7, namoona mohar Ex. Ka-8 and letter to CMO Ex. Ka-9 were also prepared by the I.O. On 9.3.2207, he collected the bloodstained and plain soil from the place of occurrence and prepared the fard Ex. Ka-1. Post mortem was conducted by PW5 Dr. SCS Koranga on 9.3.2007 at 11.30 am and post mortem report Ex. Ka-4 was prepared by him. During the course of investigation the I.O. inspected the place of occurrence and prepared the site plan Ex. Ka-5. The I.O. also recorded the statements of the witnesses and after completing the investigation he filed the chargesheet Ex. Ka-12 against the accused appellant. 3 3. Learned Judicial Magistrate, Ramnagar after giving the necessary copies of the documents to the accused appellant as prescribed under Section 207 CrPC, committed the case to the Court of Sessions on 29.5.2007. 4. On 18.6.2007, learned Sessions Judge, Nainital framed the charge against the accused appellant under Section 304 IPC. The charge was read over and explained to the accused appellant, who pleaded not guilty and claimed to be tried. 5. To prove its case, the prosecution has examined PW1 Smt. Bachuli Devi, an eyewitness; PW2 Smt. Indra Devi, also an eyewitness; PW3 Chani Ram, the complainant; PW4 Smt. Shanti Devi, another eyewitness; PW5 Dr. SCS Koranga, who conducted the post mortem and prepared the post mortem report Ex. Ka-4; PW6 S.I. Salauddin, who initially investigated the case; PW7 Constable Clerk Gurdeep Singh, who prepared the chick FIR Ex. Ka-10 and made the necessary entry in the GD, copy of which is Ex. Ka-11; PW8 SI Nanda Ballabh Bhatt, to whom the investigation of this case was subsequently transferred; PW9 Smt. Ganguli Devi (Ganga Devi), an eyewitness and PW10 Smt. Leela Devi, also an eyewitness. 6. 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. However, in defence, he did not produce any documentary or oral evidence. 7. After hearing learned counsel for the parties and after appreciating the evidence available on record, learned Sessions Judge, Nainital vide his judgment and 4 order dated 1.2.2008 convicted and sentenced to the accused appellant as discussed above. Against the aforesaid judgment and order dated 1.2.2008, the accused appellant has preferred the present appeal. 8. I have heard learned Counsel for the parties and have carefully perused the entire material available on the record. 9. Before any further discussion, it would be pertinent to mention the ante mortem injuries found on the body of the deceased Indra Devi as mentioned in the post mortem report Ex. Ka-4 prepared by PW5 Dr. SCS Koranga, who had conducted the post mortem on 9.3.2007 at 11.30 am and the same are reproduced as below: “(1) Traumatic swelling CA, 10 cm x 8 cm x whole surface of Rt. Thigh, 10” above the Rt. knee. Bluish in colour. (2) Contusion, 10 cm x 10 cm over right side of back, just above Rt. renal angle, bluish in colour. (3) Abrasion, 6 cm x 2 cm over Rt. side neck, 4 cm above the Rt. clocicle. Red brown in colour. (4) Lac./wound, 6 cm x 2 cm x bone deep present over middle of scalp. Red. Clotted blood +. (5) Lac./wound, 8 cm x 2 cm x bone deep present 5 cm above & lateral to the Rt. ear. Red. Clotted blood +. Duration : about 1/2 to 1 day. Opinion : Death due to haemorrhage and sock due to ante mortem injury.” 10. To prove the aforesaid post mortem report Ex. Ka-4 the prosecution has examined PW5 Dr. SCS Koranga, who has proved the contents of same and has further stated that in his opinion, the deceased died about one day before conducting the post mortem and she died because of the injuries suffered by her before the death which resulted in excessive bleeding. These injuries could be caused on 8.3.2007 at about 11.30 am. 5 11. To further prove its case, the prosecution has examined PW4 Smt. Shanti Devi, who has stated that on 8.3.2007 at about 9 am, she along with her companions Smt. Bachuli (PW1), Smt. Leela (PW10), Indra (PW2), Ganguli (PW9) and Indra Devi (the deceased) had gone to forest to collect the woods in the Aam Danda forest. Accused appellant Ganesh Ram also came subsequently. They started collecting the woods in close proximity to each other. At 11.30 am, hot talks took place on the issue of cutting the woods between Ganesh Ram and Indra Devi and the accused appellant committed marpit with her. Accused appellant assaulted Indra Devi with a wooden danda. Indra Devi started screaming and upon this, she and other women came running there. Ganesh Ram ran away from the place of occurrence along with the said wooden danda. She has further stated that when she asked Indra Devi as to why Ganesh Ram assaulted her and then she replied that on the issue cutting the woods, Ganesh Ram quarreled with her, hot talks took place between them and because of this reason, he hit her head with a danda and injured her. This witness has further stated that Indra Devi died on the spot and she along with other women brought her in the house after having tied her with the woods and informed Arjun, the son of deceased Indra Devi that she was killed by accused appellant Ganesh Ram in the forest. Arjun informed about it to his maternal grandfather Chani Ram (PW3), the complainant. On the next day, she and Smt. Bachuli Devi had gone along with the policemen at the place of occurrence and the policemen collected bloodstained and plain soil from there and prepared the fard Ex. Ka-1 and they had also put their thumb impression on it. Despite searching lengthy cross- examination, the defence Counsel has failed to elicit any material to shatter and discredit the testimony of this 6 witness. Her statement is reliable, believable and inspire the confidence. 12. PW1 Smt. Bachuli Devi, PW2 Smt. Indra Devi, PW9 Smt. Ganguli Devi (Ganga Devi) and PW10 Smt. Leela Devi are also the eyewitness of the said incident and they have also corroborated the statement made by PW4 Smt. Shanti Devi. They also could not be shaken in their cross- examination done by the defence Counsel. 13. PW3 Chani Ram, the complainant has reiterated the version made by him in the FIR Ex. Ka-2 and has further stated that inquest report Ex. Ka-3 was prepared in his presence and he had also signed on that. 15. PW6 SI Salaudding has stated that on 8.3.2007, he was posted in PS Ramnagar. On the same day, he had started the investigation of this case and prepared the inquest report Ex. Ka-3. He also prepared the photolash Ex. Ka-6, police form no. 13 Ex. Ka-7, namoona mohar Ex. Ka-8 and letter to CMO Ex. Ka-9 for conducting the post mortem. On 9.3.2007, he inspected the place of occurrence and prepared the site plan Ex. Ka-5 on the pointing of eyewitness Smt. Bachuli Devi (PW1). On the same day, he also collected the bloodstained and plain soil from the place of occurrence and prepared the fard Ex. Ka-1. He also recorded the statements of the witnesses. He continued with the investigation till 25.3.2007 and thereafter investigation was transferred to SI Nanda Ballabh Bhatt (PW8). 16. PW7 Gurdeep Singh has stated that on 8.3.2007, he was posted as a Constable Clerk in PS Ramnagar. On that day, he had prepared the chick FIR Ex. Ka-10 on the basis 7 of the report Ex. Ka-2. He had also made the necessary entries in the GD, copy of which is Ex. Ka-11. 17. PW8 SI Nanda Ballabh Bhatt has stated that initial investigation of this case was done by SI Salauddin (PW6), who proceeded on training and, therefore, the investigation of this case was transferred to him by the orders of SHO, Ramnagar. He recorded the statements of the witnesses and after completing the investigation, filed the chargesheet Ex. Ka-12 against the accused appellant. 18. 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. However, in defence, he did not produce any documentary or oral evidence. 19. Learned Counsel for the accused appellant argued that on the basis of the evidence discussed above, the prosecution has not proved the case against the accused appellant beyond reasonable doubt. I do not find any substance in the argument of the learned Counsel for the accused appellant due to the following reasons: (i) That as many as five eyewitnesses were named in the FIR Ex. Ka-2 and all of them have been examined by the prosecution and all the eyewitnesses have also supported the case of prosecution. None of them could be shaken on any point in their cross-examination. (ii) That as per the statement of PW4 Smt. Shanti Devi, on the date of incident i.e. on 8.3.2007 at about 9 am, she along with Smt. Bachuli (PW1), Smt. Leela (PW10), Indra (PW2), Ganguli (PW9) and Indra Devi (the deceased) had gone to forest 8 to collect the woods in the Aam Danda forest. Accused appellant Ganesh Ram also came subsequently. They started collecting the woods in close proximity to each other. At 11.30 am, hot talks took place between Ganesh Ram and Indra Devi on the issue of cutting the woods and thereafter the accused appellant committed marpit with her. Accused appellant assaulted Indra Devi with a wooden danda. Indra Devi started screaming and upon this, she and other women came running there. Ganesh Ram ran away from the place of occurrence along with the said wooden danda. She has further stated that when she asked Indra Devi as to why Ganesh Ram assaulted her and then she replied that on the issue cutting the woods, Ganesh Ram quarreled with her, hot talks took place between them and because of this reason, he hit her head with a danda and injured her. This witness has further stated that Indra Devi died on the spot and she along with other women brought her in the house with the help of woods and informed Arjun, the son of deceased Indra Devi that she was killed by accused appellant Ganesh Ram in the forest. Arjun informed about it to his maternal grandfather Chani Ram (PW3), the complainant. Despite searching lengthy cross- examination, the defence Counsel has failed to elicit any material to shatter and discredit the testimony of this witness. Her statement is reliable, believable and inspire the confidence. (iii) That statement of PW4 Smt. Shanti Devi is fully corroborated by other eyewitnesses, viz., PW1 Smt. Bachuli Devi, PW2 Smt. Indra Devi, PW9 9 Smt. Ganguli Devi (Ganga Devi) and PW10 Smt. Leela Devi. (iv) That the incident took place at about 11.30 am on 8.3.2007 and the report was lodged on the same day at 3.30 pm and the distance between the place of occurrence and the police station is about 5 kms. Therefore, in the circumstances stated above, the FIR was also lodged promptly as the dead body of Indra Devi was first brought to her house by the aforesaid eyewitnesses, who also informed about the said incident to the son of the deceased who subsequently informed about it to the complainant and thereafter the report was immediately lodged. (v) That as per the post mortem report Ex. Ka-4 prepared by PW5 Dr. SCS Koranga, who had conducted the post mortem on 9.3.2007 at 11.30 am, the deceased Indra Devi suffered serious injuries in her skull and her occipital and parietal bones were fractured. She could have died on 8.3.2007 at about 11.30 am because of the injuries suffered by her before the death which resulted in excessive bleeding. Thus, the ocular version of evidence adduced by the prosecution is well-corroborated by the medical evidence. 20. Thus, in view of my foregoing discussion of evidence and for the reasons recorded above, it is held that the prosecution has proved its case against the accused appellant beyond reasonable doubt for the offence punishable under Section 304 IPC and, therefore, the impugned judgment and order of the learned trial court is justified and correct and the same is liable to be upheld. 10 21. In the result, the appeal being devoid of merit is hereby dismissed. The judgment and order dated 1.2.2008 passed by the Sessions Judge, Nainital in Sessions Trial No. 59 of 2007, State v. Ganesh Ram, convicting the accused appellant Ganesh Ram under Section 304 IPC is hereby upheld and sentenced to undergo R.I. for seven years along with fine of Rs. 25,000/- and in default, to undergo six months’ additional simple imprisonment is also affirmed. 22. Copy of this judgment and order be sent to the trial court for its compliance. Let the trial court record be sent back. PRABODH (Dharam Veer, J.) 11.5.2010