IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Chapter VIII, Rule 32(2) (b) Description of case Criminal Appeal No. 336 of 2003 With Criminal Reference No. 1 of 2003 And Criminal Appeal No. 59 of 2003 Date of decision: 16th August, 2004 For the approval of: Hon’ble Chief Justice V.S. Sirpurkar. Hon’ble Mr. Justice Irshad Hussain. - Whether the order/judgment should be sent to the reporters for reporting? - Whether the reporters be allowed to see the judgment? A IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Crl. Appeal No. 336 of 2003 Naveen Chandra S/o Nanda Ballabh, R/o Village Baira Majhara, Patwari Circle Golena, Tehsil Kapkot, District Bageshwar. ------Appellant Versus State of Uttaranchal -------Respondent WITH Crl. Reference No. 1 of 2003 State of Uttaranchal Versus Naveen Chandra S/o Nanda Ballabh, R/o Village Baira Majhara, Patwari Circle Golena, Tehsil Kapkot, District Bageshwar. ------Accused & Crl. Appeal No. 59 of 2003 1. Smt. Kamla Devi W/o Sri Nanda Ballabh 2. Nanda Ballabh S/o Sri Prem Ballabh, R/o Village Baira Majhara, Patwari Circle Golena, Tehsil Kapkot, District Bageshwar. ------Appellants Versus State of Uttaranchal -------Respondent …….. Ms. Pushpa Joshi / Mr. Nirmal Joshi, learned counsel for the appellants. Mr. D.K. Sharma, learned Government Advocate for the State. Coram: Hon’ble V.S. Sirpurkar, C.J., Hon’ble Irshad Hussain, J. Date: 16th August, 2004 (Per Hon’ble the Chief Justice) 1. This judgment shall dispose of the criminal appeal No. 336 of 2003 along with criminal reference No. 1 of 2003 and also the criminal appeal No. 59 of 2003. In criminal appeal No. 336 of 2003 the original accused No. 3 Naveen Chandra is the appellant while his parents, namely, Smt. Kamla Devi and Nanda Ballabh, original accused No. 2 & 1 respectively, are the appellants in criminal appeal No. 59 of 2003. Since, the original accused No. 3 Naveen Chandra has been sentenced to death, a reference No. 1 of 2003 has been referred to us. With the consent of the parties, we have heard all the three matters together. Since, the facts and evidence are common in all the three matters and since all the three accused were tried in a single trial, all the three matters are being disposed of by this common judgment. For the purpose of this judgment, we shall be referring to the accused appellants by their original accused numbers in the Sessions Trial. 2. All the three accused came to be tried by the Sessions Judge, Bageshwar in Session Trial No. 30 of 2001, wherein all the three accused were charged for an offence under section 302 read with section 34 Indian Penal Code on the allegation that on 2.06.2001, these three accused persons, in furtherance of their common intention, had committed murder of Ganesh Dutt S/o Prem Ballabh, Smt. Janki Devi W/o Ganesh Dutt and Sandeep S/o Ganesh Dutt. While the accused persons are the husband, wife and son, the deceased are also the husband, wife and son. Interestingly, original accused No. 1 Nanda Ballabh is the real brother of the deceased Ganesh Dutt. Shortly stated, the prosecution case was that the relationships between the two brothers, namely, original accused No. 1 Nanda Ballabh and the deceased Ganesh Dutt were strained on account of the family matters. They were all residents of the Village Baira Majhara, Tehsil Kapkot, District Bageshwar and their houses are almost adjoining to each other. On the fateful day i.e. on 2.06.2001, there was an altercation in between Nanda Ballabh & his family members on the one hand and Ganesh Dutt & his family members on the other during the day time in which, Ganesh Dutt received an injury to his head. It is then, the prosecution case that conciliation was to be arranged through a Panchayat at the instance of original accused No. 1 Nanda Ballabh, who had sought the intervention of Bhupal Dutt (PW2) and others on the ground that his brother Ganesh Dutt was continuously troubling him and continuously hurling abuses. It seems that this was at 7’O Clock in the morning and thereafter, there was an alteration during the day time. Bhupal Dutt (PW2), therefore, went along with some others to the house of original accused No. 1 Nanda Ballabh, where 7 or 8 other persons were already present. This was at about 5’O clock in the evening. At the instance of original accused No. 1 Nanda Ballabh, Ganesh Dutt was called by Bhupal Dutt (PW2), one Bishan Dutt and Govind Ballabh. They found that Ganesh Dutt already had an injury on his head, yet he came along with them to the Courtyard in between the houses of original accused No. 1 Nanda Ballabh and the deceased Ganesh Dutt. On being asked as to what the dispute between the two brothers about, Ganesh Dutt allegedly lost his temper and started abusing the original accused No. 1 Nanda Ballabh. Therefore, the persons, who were there, took him back to his house. However, Ganesh Dutt, again, came back and held the hand of his sister-in-law i.e. original accused No. 2 Smt. Kamla Devi. After this, there was an altercation between original accused No. 1 Nanda Ballabh and Ganesh Dutt and they grappled with each other and Ganesh Dutt was knocked down by original accused No. 1 Nanda Ballabh. In the meantime, original accused No. 3 Naveen Chandra rushed and injured Ganesh Dutt on his head by a weapon called “Khukri”. The prosecution, further, alleged that Smt. Janki Devi W/o Ganesh Dutt, also came there praying to spare Ganesh Dutt, but she was also attacked by the original accused No. 3 Naveen Chandra on her face and head. Though the persons, present, requested original accused No. 3 Naveen Chandra to spare the to others, he ran up to the house of Ganesh Dutt, where Ganesh Dutt’s son Sandeep was standing and injured Sandeep also. The other son of Ganesh Dutt, namely, Manish Kumar (PW3) took to his heels while the other son Mukesh hid himself. Ganesh Dutt died on the spot while his wife Smt. Janki Devi and son Sandeep were seriously injured. The Gram Pradhan was called and the injured were kept in the Varanda of Ganesh Dutt’s house, but they also died during the same night. 3. A report came to be made of this incident by Pooran Chandra (PW1), who was at the relevant time, the Up-Pradhan (Vice Chairman) of the Village. This report was prepared on 2.06.2001 and was handed over, in which it was suggested that the accused persons had committed the murder of three deceased persons on account of the old rivalry. On this, the usual investigation was started after the case was registered against the accused persons for offence under section 302 I.P.C. The Investigation Officer Rahim Ahmed (PW6), who was the Patwari, has the police powers and he proceeded to the spot and conducted the usual investigation by conducting Panchnamas as also by inspecting the spot. He also sent the dead bodies for post mortem. Eventually, the accused persons came to be arrested. The Investigation Officer Rahim Ahmed (PW6) also recorded the statements of number of witnesses including the eye-witnesses and the charge-sheet was filed against the accused persons. 4. Before the Sessions Judge, accused abjured their guilt and claimed that they were falsely implicated. In support of the prosecution, as many as seven witnesses were examined. PW1 Pooran Chandra S/o Narottam was the author of the F.I.R. while PW2 Bhupal Dutt and PW3 Manish Kumar are the eye witnesses. PW4 Rama Devi W/o Pushakar is a formal witness while PW5 Dr. S.S. Toliya conducted the post mortem. PW6 Rahim Ahmed is the Investigation Officer while PW7 Pooran Chandra Karnataka is none else, but real younger brother of Nanda Ballabh, original accused No. 1, who seems to have been examined as a Court witness. It seems that though Pooran Chandra Karnataka (PW7) was not shown as a witness in the charge-sheet, he offered his evidence and the Sessions Judge also examined his as a Court witness. Thus, the whole case of the prosecution depended on the evidence of the eye-witnesses and accepting that evidence, the Sessions Judge has convicted the accused persons, under section 302 read with section 34 Indian Penal Code. Original accused No. 1 & 2 i.e. Nanda Ballabh and Smt. Kamla Devi respectively have been awarded life imprisonment while the original accused No. 3 i.e. Naveen Chandra has been awarded the death sentence. 5. Ms. Pushpa Joshi, learned counsel appearing on behalf of the appellants – accused urges that the eye-witnesses account relied upon by the prosecution in this case, is unbelievable. She points out further that the possibility of the presence of Bhupal Dutt (PW2) on the spot was extremely scarce and that he has not given the correct and full account. As regards the second eye-witness i.e. Manish Kumar (PW3), learned counsel says that he is a child witness and was susceptible to being tutored by the elders in the family and that he was actually tutored by Pooran Chandra Karnataka (PW7), his uncle, with whom this witness stayed after the death of his parents. The further contention of the learned counsel for the appellants is that the eye- witness account by the two witnesses is contradictory, inter se, and that the Trial Court has completely erred in relying upon these two witnesses and convicting all the accused persons. As regards the involvement of the first two original accused, namely, Nanda Ballabh and Smt. Kamla Devi is concerned, the learned counsel says that there was absolutely no evidence against these two accused persons and the theory of these three accused persons, having any common intention to kill, is unsustainable, as even accepting the evidence of the prosecution in full, such meeting of mind, which was necessary, could not be inferred. It is, then, suggested that at least in so far as the first two original accused are concerned, there was not even an iota of evidence as to involve them and their conviction was wholly unsustainable. As regards, the original accused No. 3 Naveen Chandra, it is pointed out that even he seems to have been involved at the instance of Pooran Chandra Karnataka (PW7), the Court witness and that there was every reason to suggest that he was made a scapegoat in the whole affair. Learned counsel for the appellants very seriously urges and points out the various discrepancies in the investigation, which was done by a Patwari having police powers. She points out that, firstly, the F.I.R. was belated and no copy thereof was sent to the concerned Magistrate. Secondly, she points out that though the prosecution tried to develop a theory of discovery of weapon, there was no proper evidence to support that theory. Thirdly, learned counsel urges that the death sentence awarded to the original accused No. 3 Naveen Chandra was wholly uncalled for as firstly, he was entitled to be acquitted and secondly, even if it was proved that he had taken part in the incident, it was liable to be believed that it was on account of certain provocation that he acted the way he did and his conviction should have been for an offence under Section 304-I I.P.C. and not for the offence under Section 302 I.P.C. Lastly, the learned counsel for the appellants argues that even if his conviction for offence under Section 302 was justified, the extreme sentence of death was wholly uncalled for considering the various circumstances and according to the learned counsel, this could never be termed as rarest of the rare case. 6. As against this, the public prosecutor Mr. D.K. Sharma urges that the evidence of the two eye-witnesses was not only natural, but it remained unchallenged in the cross-examination. He points out that Bhupal Dutt (PW2) was an uninterested witness and had graphically unravelled the prosecution story. He repels the criticism by the defence counsel that the available witnesses were not examined so as to unravel the whole prosecution story and urges that the two witnesses examined by the prosecution had sufficiently unravelled the whole story and their evidence remained unshakened. It is pointed out by the public prosecutor that the two witnesses corroborated each other and thus, the guilt of all the accused persons was brought home. The learned public prosecutor has argued that each accused had taken part in the said crime and it was not necessary for the application of Section 34 that there had to be a previous meeting of mind and that such common intention could develop on the spot also. According to the public prosecutor, that was precisely the case in the present trail. He further urges that though Manish Kumar (PW3) was a child witness, he was sufficiently intelligent and his version was well corroborated by the circumstances on record and the evidence of Bhupal Dutt (PW2). Lastly, the public prosecutor urges that the present case could be described as rarest of rare case as Naveen Chandra, original accused No. 3, who is 22 years of age, had mercilessly committed three murders along with his own parents and had wiped out a family of husband, wife and son. He points out that Sandeep was barely 13 years of age and he had really nothing to do with the family rivalry and as such, the assault by Naveen Chandra on him was wholly uncalled for. It is, these reasons, that the public prosecutor Mr. D.K. Sharma supports the prosecution. 7. In this case, it cannot be disputed that all the three persons, who lost their lives, have suffered homicidal death. They were hale & hearty before the incident took place on 2.6.2001 and have suffered extensive injuries resulting in instantaneous death on the part of Ganesh Dutt while his wife Janki Devi and son Sandeep lost their lives shortly after the incident took place at about 5’O clock. Ganesh Dutt has suffered as many as 3 major injuries on his face and head. All the three injuries were incised injuries and were cumulatively sufficient to cause death. His wife Janki Devi suffered as many as 4 injuries on her head and face while son Sandeep also suffered 4 injures. The injuries, in case of all the three, were anti-mortem and have been testified to be sufficient to cause death. Dr. S.S. Toliya (PW5) has proved the post-mortem reports of all the three deceased persons and has certified the injuries in case of all the three deceased persons to be sufficient to cause death. Nothing much has come in the cross-examination of the Doctor excepting that the post mortem of one of the deceased was done at night in contravention with rules of Medical Council of India. No such rule was, however, pointed out before us. In fact, the defence did not meet the real challenge, the claim of the doctor that all the three injured persons had died in the same night due to injuries. 8. A faint effort was made by Ms. Pushpa Joshi, learned counsel for the appellants – accused to suggest that the injuries did not co- relate to the weapon allegedly used by original accused No. 3 Naveen Chandra as it was with a weapon called “Bariath” that the injuries were caused and if that was so, the injuries should have been slightly round according to the shape of “Bariath”. 9. We do not agree with this argument of the learned counsel for the appellants is as much as it has come, very specifically, in the evidence of both the eye-witnesses that it was with a weapon called “khukri” that the injuries were caused and there is no serious challenge to the evidence of Dr. S.S. Toliya (PW5) that the injuries are capable of being caused by a “khukri”. 10. In the cross-examination, the doctor was merely asked the rules regarding the post mortem not being conducted during night. He also admitted that the weapons, like Kukri, Darati, Bariath and Talwar were different kinds of weapons, having different kind of design and length, etc. He insisted that all the injuries were straight and were not curved injuries so as to completely give a go bye to the defence theory that it was not Khukri, but Bariath, which was weapon of murder. The doctor has very specifically stated in his evidence that a portion of Khukri is straight and not curved. That would simply establish that the injuries on all the three bodies which were straight and not curved, were caused by Khukri. Beyond putting some stray suggestions, the defence has not been able to draw any support from the evidence of the doctor and it was clear that all the three deceased persons died due to the injuries inflicted on their body by a sharp and cutting weapon like Khukri. We cannot, therefore, accept the defence suggestion that the medical evidence in this case does not support the case of the eyewitness P.W.2 Bhupal Datt and P.W.3 Manish Kumar. We would now take up the appreciation of the evidence of these witnesses. The Session Judge has relied upon these two witnesses. In his evidence, P.W.2 Bhupal Datt had given a graphic account practically of the incident, which took place practically whole day i.e. 2.6.2001. We will not repeat. However, he has specifically stated about accused Nanda Ballabh coming to his house at 7 O’ clock and complaining about the activities of deceased Ganesh Datt. He has also referred to the fact that when he went to Nanda Ballabh’s house, there were certain other villagers available including Bishan Datt, etc. He had gone to the house of accused Nanda Ballabh at about 5 O’ clock. He then specifically deposed that he, Bishan Datt and Govind Ballabh had gone to call Ganesh Datt at the instance of accused Nanda Ballabh. He also referred to the injuries suffered by Ganesh Datt to his head. It is significant to note that in the first information report itself, the name of Bhupal Datt is to be found. In the F.I.R., there is a specific reference to a Panchayat, which had met to solve the dispute. It has come in the F.I.R. that in that Panchayat, Bishan Datt, Govind Ballabh and Bhola Datt were present and since there was a fight during the said Panchayat, the accused Nanda Ballabh, his wife accused Kamla Devi and his son accused Naveen Chandra had injured and murdered Ganesh Datt, his wife Janaki Devi and son Sandeep. Therefore, we find truth in the evidence of this witness. This witness then very specifically asserted that after Ganesh Datt’s arrival at the spot, when he asked as to what was the dispute, he lost temper and, therefore, he was taken back to his house by the witness and some others. He then asserts that Ganesh Datt was locked in the house, he freed himself and came at the spot and held the hand of accused Nanda Ballabh’s wife-accused Kamla Devi. The witness went on to say that accused Nanda Ballabh confronted him, and then there was a grappling between accused Nanda Ballabh and Ganesh Datt, wherein Nanda Ballbh felled Ganesh Datt on the ground and that Ganesh Datt had fallen on the ground and over him was accused Nanda Ballabh and at that time accused Naveen Chandra rushed there and hit Ganesh Datt at his temple with Khukri. This witness undoubtedly referred to only one blow and considering the number of injuries on Ganesh Datt’s person, the defence tried to argue that the account of the witness regarding this assault was incomplete. It was pointed out by the learned counsel that there were as many as about three lacerated wounds on the head and face of Ganesh Datt. From that, learned counsel for the defence wants us to disbelieve Bhupal Datt. That was not possible. It may be that Bhupal Datt described only one blow, but is was altogether that Naveen Chandra, who was armed with Khukri, had his Ganesh Datt atleast 2-3 times. Merely because the P.W.2 witness Bhupal Datt described only one blow, it is not sufficient to discard his testimony altogether. It is as if the witness Bhupal Datt has stated that there was only one blow given by Naveen Chandra to the deceased Ganesh Datt. 11. The witness then further said that wife of Ganesh Datt was coming and Naveen Chandra hit her with the same Khukri on her face and nose. On being injured Janaki Devi fell on the ground. This was also very natural evidence. When we compare the injuries of Ganesh Datt and Janaki Devi, they correspond firstly to the attack of Khukri and secondly to the account given by the witness regarding the parts of the body on which Naveen Chandra had attacked with the aid of Khukri. This witness then spoke about the assault by Naveen Chandra on deceased Sandeep, who was standing in front of the house of Ganesh Datt. He says that Sandeep Kumar after the assault of accused Naveen Chandra entered the house of Ganesh Datt and then came out after about two minutes. He has also given very specific account regarding the other two sons of deceased Ganesh Datt, they being Manish and Mukesh. He specifically says that one of them took to his heals while the other hid himself under the stairs. The witness then goes on to say that Ganesh Datt, died on the spot and other two i.e. Janaki Devi and Sandeep were seriously injured and died at night. This witness was closely cross-examined. However, barring the few insignificant omissions, the witness was not shaken at all. The omissions are regarding his visit to accused Nanda Ballabh at 7 O’clock and Nanda Ballabh’s complaint against Ganesh Datt that he was not behaving properly. A further omission is regarding Nanda Ballabh’s refusal to go to Ganesh Datt’s house for calling him. Then there is only one major omission i.e. about Ganesh Datt’s coming on the spot and holding the hand of accused Nanda Ballabh’s wife accused Kamla Devi, but we will not attach much importance to that fact because it is obvious from the evidence of this witness that Ganesh Datt did actually come on the spot and that thereafter there was physical altercation between accused Nanda Ballabh and deceased Ganesh Datt. Some support was tried to be taken by the defence from a stray sentence that ”Maine Nanda Ballabh Wa Uski Patni Thatha Uski Larkiyon Ko Ganesh Datt Ke Sath Marpit Karte Nahi Dekha. Ukta Ghatna Mujhe Mukesh Ne Batai Thi”. I had not seen Nanda Ballabh and his wife and his daughter fighting with Ganesh Datt and that incident was told to him by Mukesh. From this learned counsel for the defence Mrs. Pushpa Devi wanted us to discard the whole evidence of Bhupal Datt. We cannot accept the defence suggestion for the simple reason that this obviously pertained to the earlier incident during the day, during which Ganesh Datt had suffered an injury to his head. Barring giving suggestions that this witness was not present on 2nd June and barring suggestion, a futile suggestion, regarding some non-existing enmity on account of water dispute, the witness could not be shaken so far as his main core of evidence to the effect that, to begin with, there was physical altercation of accused Nanda Ballabh with deceased Ganesh Datt and during that altercation Naveen Chandra rushed to the spot and hit Nanda Ballabh with Khukri and thereafter injured the wife of Nanda Ballabh, Kamla Devi, wife of Ganesh Datt, Janaki Devi and thereafter assaulted son of Ganesh Datt, namely, Sandeep and all the three were actually injured at the hand of Naveen Chandra. 12. Very significantly, this witness also refuted the suggestion made to him that at the time of this incident Manish was not there and he had gone to purchase sugar at the spot of Society, which is about half furlong away from the house of accused Nanda Ballabh. Very significantly again in his cross-examination, he was asked about Ganesh Datt’s holding