IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. CRIMINAL APPEAL NO. 15/2005 Girish Chandra .. Appellant. Vs. State …. Respondent. WITH CRIMINAL APPEAL NO. 31/2005 Girish Chandra .. Appellant. Vs. State …. Respondent. WITH CRIMINAL JAIL APPEAL NO. 183/2005 Girish Chandra .. Appellant. Vs. State …. Respondent. Sri R.S. Sammal, learned Amicus Curiae, for the appellant. Sri Harish Pujari, learned A.G.A. for the State/Respondent. Hon’ble B.C. Kandpal, J. Hon’ble B.S. Verma, J. [Delivered by Hon’ble B.C. Kandpal,J.] All the above three appeals arise out of the same judgment and order dated 29-12-2004, passed by Sessions Judge, Champawat in S.T. No. 13/2004, Stave Vs. Girish Chandra and others, convicting the accused/appellant Girish Chandra, U/S 302 I.P.C. and sentencing him to undergo Imprisonment for Life. Criminal Jail Appeal No. 183/2005 has been preferred by the accused from Jail whereas the other two appeals have been preferred by his counsel, hence these appeals are being decided by this common judgment. 2- The prosecution case in a nutshell is that Devkinandan lodged a written report on 20-4-2004 with Patwari Garhkot, Tehsil Champawat with the allegation that on 19-4-2004 at about 8 P.M. Girish 2 Chandra committed the murder of Smt. Bhuwneshari Devi with Dranti. The complainant also mentioned in the F.I.R. that dispute pertaining to land is going one between them. On the basis of the said written report, Ext. Ka.1, the Patwari Pushkar Nath Goswami prepared check F.I.R. Ex.Ka.11. Thereafter, he visited the place of occurrence and on the pointing out of the complainant he got prepared the site plan, Ext.Ka.6. He appointed the panches and prepared the inquest report Ext. Ka.2. Accused Girish Chandra handed over blood-stained Dranti, material Ext-5 to the Investigating Officer. He prepared memo Ext. Ka.3. The accused Girish Chandra also confessed his guilt. The Patwari also seized the blood-stained and plain earth from the place of occurrence and sealed the same in two separate phials and also prepared the memo, Ext. Ka.5. The Investigating Officer also prepared Fard, Ex.Ka.4, of the clothes and the ornaments of the deceased. He also arrested the accused Girish Chandra and prepared memo of arrest, Ext. Ka.12. He also gave information to Purnanand, father of the accused Girish Chandra, about the arrest of accused Girish Chandra and prepared memo Ext. Ka.13 for the same. On 20-4- 2004 the Investigating Officer handed over the dead body to his peon Umesh Singh, in a sealed condition, for post mortem and prepared memo of handing over the dead body, Ext. Ka.7. He also recorded the statements of the witnesses on various dates. Thereafter the investigation was transferred to Umed Singh Rautela, Qanoongo. On 4.5.2004 he arrested Smt. Durga Devi and Purnanand and got prepared arrest memos Ext. Ka.9 and Ka.10 respectively. He also sent the blood-stained and 3 plain earth as well as the clothes of the deceased to Forensic Lab Agra for chemical examination. The Chemical Examiner submitted his report about the blood-stained and plain earth, Ext. Ka. 14 and that of clothes and weapon of assault (Dranti), Ext. Ka.15. After completion of investigation the investigating officer submitted charge sheet, Ext. Dka.16, against the accused persons. 3- The autopsy on the dead body of the deceased Smt. Bhuwneshwari Devi was conducted by Dr. K.S. Mehta, Medical Officer, C.H.C. Lohaghat on 21-4-2004 at about 12.45 P.M. The doctor found the following anti-mortem injuries on the persons of the deceased- 1- Incised wound right side of face near eye, vertical size 5cm x 1.5c m x bone deep fractured wound depth were downwards. Accumulated blood clot was present. 2- Incised wound present on chin vertical 1.5cm x 0.5cm leather deep. Blood clot was present. 3- Incised wound over lip right side 1cm x 0.5 cm blood clot present. Incisor tooth upper absent. Blood Clot present. 4- Mandible broken left side. 5- Swelling above right elbow. 6- Incised wound left forearm distal 1/34d area, frontal region horizontal 1cm x 2cm muscle deep. Blood clot present. 7- Incised wound over left ankle inner aspect oblique, 2cm x 1cm x bone deep. Blood clot present. 4 8- Incised wound left side neck extending from mastoid process to below mid part of mandible oblique size 10cm x 3cm muscle deep. Blood clot present . 9- Incised wound on left pinna lower part size 1cm pinna cut into parts. According to the Medical Officer the cause of the death of the deceased was due to shock and haemorrhage as a result of anti-mortem injuries. The doctor prepared Autopsy Report, Ext. Ka.19. 4- The Judicial Magistrate, Champawat, vide his order dated 28-7-2004 committed the case to the court of Sessions for facing the trial by accused persons Girish Chandra, Smt. Durga Devi, Purnanand and Devkinandan. 5- The learned Sessions Judge vide his order dated 10-8-2004, framed charges U/Ss 302/34, 201 and 109 I.P.C. against accused Girish Chandra, Purnanand, Smt. Durga Devi and Devkinandan. The accused persons denied the charges and claimed to be tried. 6- Thereafter the prosecution in support of its case examined P.W.1, Mohan Chandra, P.W.2, Prakash Chandra, P.W.3, Suresh Chandra, P.W.4, Govind Ballabh Kharkwal, P.W.5, Dinesh Chandra, P.W.6, Pushkar Nath and P.W.7, Umed Singh. 7- The accused persons in their statement U/S 313 Cr.P.C. denied the prosecution case and alleged that they have been falsely implicated due to enmity. No defence evidence was produced by the accused. 5 8- The learned Sessions Judge after hearing learned counsel for the parties and considering the entire material available on record, found accused Girish Chandra guilty of the offence U/S 302 I.P.C. and sentenced him to undergo Life Imprisonment. He was acquitted under other charges U/Ss 201 and 109 I.P.C. levelled against him. However, the other co-accused Purnanand, Devkinandan and Smt. Durga Devi were acquitted of the charges levelled against them. 9- Feeling aggrieved by his above conviction and sentence awarded by the learned Sessions Judge, the accused Girish Chandra has preferred this appeal before this court. 10- We have heard Sri R.S. Sammal, learned Amicus Curiae, appearing on behalf of the accused/appellant and Sri Harish Pujari, learned A.G.A. for the State and perused the record. 11- Learned Amicus Curiae has submitted that prosecution has not been able to establish the motive for committing the crime by the accused persons. He further alleged that no witness of actual incident has been procured by the prosecution, therefore, the conviction of the accused/appellant is not sustainable in the eyes of law. Learned Amicus Curiae also argued that the co-accused against whom same set of evidence has been adduced have been acquitted by the trial court, therefore, benefit of acquittal of co-accused should be extended to the present accused/appellant also. 6 12- So far as the motive part is concerned, it is admitted case of the parties that they were on animus terms with each other pertaining to landed property. The written report in this case has been lodged by one of the accused i.e. Devkinandan and he has specifically mentioned in it that they had enmity pertaining to some land. The prosecution witnesses also deposed about the enmity between the two sides pertaining to land. Therefore, the submission of learned Amicus Curiae on the point of motive does not stand and we are of the considered view that the accused/appellant had motive to commit the crime. 13- As regards the eyewitness account in the case, it will be feasible to go through the depositions of the prosecution witnesses. 14- P.W.1, Mohan Chandra is not the eyewitness of the incident. He is the scribe of the written report. He has deposed that on 20-4-2004 he had gone to the shop to buy rice. In the way at about 9.30 A.M. Devkinandan met him and he asked him to write an application that accused Girish Chandra killed his aunt Bhuwneshari Devi by a big Dranti and he has to lodge that report with the Patwari. He has further deposed that on the dictation of Devkinandan he wrote the F.I.R. paper No. 4-A/2. This witness has proved the written report Ext. Ka.1. On this written report this witness has also made his signature. In his cross- examination this witness has stated that deceased Bhuwneshwari Devi was his maternal aunt. The genuineness of the written report, Ext. Ka.1, cannot 7 be doubted and the narration in the F.I.R. is to be taken as true. 15- P.W.2, Prakash Chandra is the son of deceased Smt. Bhuwneshwari Devi. This witness has deposed that on 19-4-2004 at about 7.00 P.M. when he was returning his home from nearby shop, in the way Suresh Chandra met him and on his questioning Suresh Chandra told him that he was searching for a bucket. He asked Suresh Chandra to go to home. Suddenly Girish Chandra came running there from behind and assaulted him by a Danda on his head. At this he caught hold of Girish Chandra and Suresh Chandra snatched the Danda from him. Blood was coming out from his head. He further deposed that his mother also came there and she caught hold of him and Suresh Chandra captured Girish Chandra. Girish Chandra any how got free and ran away to the downwards fields. He further stated that when he reached his home he prepared oil-torch and proceeded to the house of Girish Chandra. His mother also followed him. When he reached at the house of Girish Chandra he saw that Girish Chandra was having Badiyath (Dranti), Purnanand was having an axe and Devkinandan was having a crutch and Smt. Durga Devi, mother of Devkinandan was also standing there. He has further alleged that the parents of Devkinandan asked the accused to kill this witness Prakash Chandra also. When he moved eight to ten feet inside Girish Chandra and Purnanand started beating his mother Smt. Bhuwneshwari Devi with their weapon. Devkinandan rushed to him and told that he would also be beaten. Thereafter this witness fled away 8 towards Khetikhan. His mother was crying why the accused were beating her. This witness further alleged that his mother had widowed ten years ago and since then accused Purnanand is trying to grab their land. When he was studying in class 3rd or 4th Purnanand had beaten his mother on the issue of grass. He has specifically deposed that accused Girish Chandra was armed with Badiyath (Dranti) and was assaulting his mother by his weapon. In his cross examination this witness has deposed that at the time of incident he was standing at a distance of about eight to ten feet from the courtyard of the accused persons. This witness has been cross- examined at length but nothing material has come out from it which may turn his testimony as unreliable and untrustworthy. Thus from the testimony of this witness it has amply been established that his mother was beaten by accused Girish Chandra, with Badiyath (Dranti). 16- P.W.3, Suresh Chandra is also a witness of fact. He has deposed that on 19-4-2004 a panchayat was held in the chauk of Smt. Bhuwneshwari Devi, by Sekhar Chand in which Jagdish Chand, Sekhar Chandra, Narayan Dutt, Amarnath etc participated. Smt. Bhuwneshwari Devi informed the panches that she did not call the panchayat. He has further deposed that after half an hour he went in the shop of Khalkadia, and thereafter Prakash Chandra also came there. Girish Chandra accused was also sitting in the shop of Sekhar Chand. He was searching for bucket near handpump but he could not traced it. Prakash Chandra asked him to go to home. At this Girish Chandra came running there and assaulted 9 Prakash Chandra from behind at his head. Blood had started coming out from the head of Prakash Chandra. Smt. Bhuwneshwari Devi had also arrived there and slapped Girish Chandra. He further deposed that at about 8.00 P.M. mother of Prakash Chandra was going towards the house of Purnanand in a weeping condition. He was standing at his Varandah. After some time he heard the shrieks of Bhuwneshwari Devi from the house of Purnanand ‘bachao bachao’ and Purnanand was telling don’t beat so much. He has further deposed that on the next day Patwari came there and completed the formalities of Panchayatnama. Accused Girish Chandra had told the Patwari that he has killed Bhuwneshwari Devi with Badiyath (Dranti) and handed over the weapon of assault to Patwari. From the deposition of this witness this much is quite clear that before actual incident accused Girish Chandra has assaulted Prakash Chandra with a Danda on his head and after reaching his home he had gone to the chauk of Purnanand and Smt. Bhuwneshwari Devi also followed him in a weeping condition and there at the house of Purnanand Smt. Bhuwneshwari Devi was beaten and she was crying for help. No reason has been assigned to the witness as to why he will depose falsely against the accused persons. This witness seems to be a natural witness. He has deposed only that part of incident which he had witnessed and heard. 17- P.W.4, Govind Ballabh is also a witness of fact. He has deposed about the incident of assault on Prakash Chandra by accused Girish Chandra, which had taken place before the actual 10 occurrence. He has further deposed that Prakash Chandra and Girish Chandra were quarrelling at about 6.00 P.M. He had seen the quarrel from a distance of one furlong. Blood was coming out from the head of Prakash Chandra. He further deposed that about one hour later he was coming towards his home after closing his shop, Smt. Bhuwneshwari also came behind him and she told that she was going to the house of Purnanand. He had prevented her to go to the house of Purnand but she did not pay any heed to his request and went to the house of Purnanand in order to protest the assault made at her son by accused Girish Chandra. Thereafter this witness went towards his house. He heard the voice of Smt. Bhuwneshwari ‘bachao bachao’ from a distance of about two kilometers. Purnanand was telling kill her by Badiyath. This witness further deposed that he has heard the voice for two to three minutes. On the next day at about 12 noon he knew about the murder of Smt. Bhuwneshwari Devi. He has further stated that the Arial distance between his house and the house of Purnanand is about one kilometer and the sound could very well be heard from there. In cross-examination this witness has stated that prior to this incident Smt. Bhuwneshwari Devi used to quarrel with Purnanand. This witness has fully corroborated the deposition of P.W.2, Prakash Chandra and P.W.3, Suresh Chandra. Their statement is consistent on the point of assault on Prakash Chandra by accused Girish Chandra and again presence of Smt. Bhuwneshwari Devi at the courtyard of Purnanand and assault on Smt. Bhuwneshwari Devi and her cries ‘bachao bachao’. 11 18- P.W.5, Dinesh Chand is the witness of panchayatnama. He has deposed that in the opinion of panches the death of Smt. Bhuwneshwari Devi was caused by some sharp-edged weapon. He has also stated that accused Girish Chandra had handed over the weapon of assault to Patwari and he had told that he has killed Bhuwneshwari Devi. This witness has also signed the memo Ext. Ka.7, pertaining to recovery of Dranti and confession made by the accused. 19- P.W.6, Pushkar Nath Goswami and P.W.7 Umed Singh are the investigating officers and they have deposed about the investigation. 20- Therefore, in view of the prosecution evidence narrated above, it is quite clear that there has been enmity among the accused and complainant side and on the day of incident accused/appellant Girish Chandra gave wooden blow on the head of Prakash Chandra son of deceased Smt. Bhuwneshwari Devi at about 7 P.M., prior to actual incident, and when Prakash Chandra and his mother Smt. Bhuwneshwari Devi went at the chauk of the accused in order to protest the assault on Prakash Chandra at about 8 P.M. on the same day, accused Girish Chandra, who was armed with Badiyath( Dranti), assaulted Smt. Bhuwneshwari Devi and committed her murder. Three other family members of the accused Girish Chandra were also arrayed as an accused but the trial Judge has acquitted these persons from the charges levelled against them. 12 21- Now it is to be seen as to whether the other co-accused persons have participated in the incident of marpit and their role in the marpit was similar to that of present accused/appellant Girish Chandra, and if so, whether benefit of acquittal of co-accused persons should be extended to the present accused/appellant Girish Chandra or not?. 22- P.W.2, Prakash Chandra is the eyewitness of the incident. He has deposed that when he reached near the house of accused persons, Girish Chandra was armed with Badiyath, Purananand was having an axe and Devkinandan was with crutch and Smt. Durga Devi was standing there. The panches have given their opinion in the inquest report that the death of the deceased was caused by some sharp-edged weapon. It is also the case of the prosecution that when the inquest proceedings were going on, accused Girish Chandra handed over Badiyath, (weapon of assault) to the Patwari in presence of the witnesses and he had also confessed his guilt that he has killed Smt. Bhuwneshwari Devi with this weapon. The Patwari reduced in writing the handing over of Badiyath and the confessional statement of the accused vide memo Ext. Ka.3. P.W.5, Dinesh Chandra is the witness of Panchayatnama and he is also the witness of recovery of Badiyath as well as the confessional statement of the accused. This witness has clearly deposed that accused Girish Chandra handed over Badiyath to the Patwari and has confessed his guilt. Therefore the recovery of weapon of assault as well as confession made by the accused Girish Chandra is admissible in evidence. Further in the written report, Ext. Ka.1 lodged by 13 accused Devkinandan it has been mentioned that the accused persons have enmity with complainant side and accused Girish Chandra has murdered Smt. Bhuwneshwari Devi with Badiyath on 19-4- 2004 at about 8 P.M. Therefore, the facts and circumstances of the case clearly points towards the guilt of accused/appellant Girish Chandra only. 23- It is also important to mention here that P.W.6, Pushkar Nath Goswami, first investigating officer has deposed that during his investigation Purnanand, Smt. Durga Devi and Devkinandan were not arrayed as an accused and that was the reason that he did not arrest them. He further deposed that these three accused persons have wrongly been arrested by the another investigating officer Sri Umed Singh Rautela. Father of Girish Chandra also gave statement to the investigating officer at the time of inquest proceeding that his son Girish Chandra has killed Smt. Bhuwneshwari Devi. 24- The Badiyath (Dranti) handed over by accused Girish Chandra to the investigating officer and the clothes of deceased Smt. Bhuwneshwari Devi were sent for chemical examination. The Assistant Director, Forensic Laboratory, U.P. Agra submitted his report Ext. Ka.15 and found that Badiyath, clothes and ornaments of the deceased were having stains of human blood. 25- Now coming to the medical evidence in the present case, although the doctor has not been produced by the prosecution but the defence has admitted the genuineness of the post mortem 14 report. From perusal of post mortem report it seems that as many as nine incised wounds were found on the person of the deceased. These wounds were anti-mortem injuries. The case of the prosecution is that the accused Girish Chandra assaulted Smt. Bhuwneshwari Devi with Badiyath (Dranti) a sharp-edged weapon, therefore, the weapon used in assault finds corroboration from the medical evidence. According to the doctor the death of the deceased was caused due to shock and haemorrhage as a result of anti-mortem injuries and the anti-mortem injuries caused to the deceased were sufficient in the ordinary course of nature to cause the death of the deceased. 26- From above discussion it is quite clear that the prosecution has been successful in establishing this fact that the accused Girish Chandra has committed the murder of the deceased by causing injuries by Badiyath on vital parts of her body. The prosecution has not been successful in proving the guilt of the other three co-accused beyond all reasonable doubts and the learned Sessions Judge was justified in acquitting them from the charges levelled against them. Therefore, the present accused/appellant Girish Chandra is not entitled to get any benefit of the acquittal of the co-accused. 27- In view of the discussion made above, we find that the appeals lack merit and are liable to be dismissed. 28- Accordingly, all the appeals are dismissed. The impugned judgment and order 15 passed by the trial Court convicting the accused/appellant Girish Chandra for the offence U/S 302 I.P.C. and sentencing him to undergo Imprisonment for Life is hereby affirmed. 29- The accused/appellant Girish Chandra is already in prison. He shall be detained in jail in order to serve out the sentence passed against him. (B.S. Verma, J. ) ( B.C. Kandpal, J. ) Dated: August 24, 2009 ISB 16