IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 951 of 2001 (Old No. 1157 of 1994) Madan Singh S/o Sher Singh Resident of Village Mavari Patti Patwari Kshetra Gamadhohi, Tehsil Ranikhet, District Almora. …………Appellant. Versus State ……..…Respondent. Sri Raman Kumar Sah, Amicus Curiae for the Appellant. Sri M.A. Khan, Brief Holder for the State. Hon’ble Prafulla C. Pant, J. Hon’ble Dharam Veer, J. [Oral- Hon’ble Prafulla C. Pant, J.] This appeal, preferred under Section 374 of Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), is directed against the judgment and order dated 16.06.1994, passed by learned Sessions Judge, Almora, in Sessions Trial No. 23 of 1992, whereby accused / appellant Madan Singh is convicted under Section 302 Indian Penal Code, 1860 (hereinafter referred as I.P.C.) and is sentenced to imprisonment for life. (2) Heard learned Amicus Curiae for the appellant and learned Brief Holder for the State and also perused the lower court record. 2 (3) Prosecution story in brief is that on 22.03.1992 in the afternoon, the accused / appellant Madan Singh, his sister-in-law (BHABHI) Ganga Devi (P.W.2) along with their neighbour Kamla Devi (deceased) went to Aradi Jungle of Tarikhet within the limits of Patwari Circle Timla (District Almora). All the three were residents of Village Mawari. According to the prosecution case accused / appellant Madan Singh was unhappy with Kamla Devi (deceased) for he felt that she spreads false rumours about his illicit relations with his sister-in-law (Ganga Devi). On the day of incident (22.03.1992), the three had gone to take THANGRA (branches of pine tree used for giving support to the vines or climbing and creeping plants). Ganga Devi (P.W.2) after cutting a THANGRA came towards Dharmshala leaving Madan Singh and Kamla Devi in the Jungle. At that time accused / appellant Madan Singh is said to have been armed with axe (Ext.3). After sometime Ganga Devi came back to the Jungle and saw Kamla Devi lying in a pool of blood and Madan Singh was standing there possessing axe (Ext.3). On seeing Ganga Devi accused / appellant Madan Singh told her that by mistake Kamla Devi got injured by him and she (Ganga Devi) should not disclose it to anyone in the village. Ganga Devi (P.W.2) came back to the village and told about the incident to her in-laws, who told about it to Village Pradhan. Laccham Singh (P.W.1), Village Pradhan, scribed a Report (Ext.A-1) and submitted it to Mohan Singh (P.W.6), Patwari of the area, who registered it and prepared check First Information Report (Ext.A-6). (In interior hills of Uttarakhand revenue officials are given police powers under U.P. Government 3 Notification No. 494/VIII-418-16, dated 07.03.1916). The said Patwari, who started investigation of the crime, went to the village on the same day but as night had fallen he went again next day and prepared the inquest report (Ext.A-2). After taking dead body of Kamla Devi in his possession, got it sealed and prepared sketch of the dead body (Ext.A-8), site plan (Ext.A-7) and letter to the Chief Medical Officer requesting for postmortem examination. The dead body was sent in a sealed condition to Civil Hospital, Ranikhet. Dr. V.K. Kapoor (P.W.7) conducted postmortem examination on 23.03.1992 at 11.45 a.m. and prepared autopsy report (Ext.A-13). The Investigating Officer interrogated the witnesses. He arrested the accused / appellant Madan Singh and on his pointing out recovered axe (Ext.3), used in the crime. He also took the blood stained articles in his possession and sent them for chemical examination. On completion of investigation, Patwari submitted charge sheet (Ext.A-11) against the accused / appellant Madan Singh for his trial in respect of offence punishable under Section 302 I.P.C. for commission of murder of Kamla Devi. (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., appears to have committed the case to the court of Sessions for trial. Learned Sessions Judge, Almora, to whom the case is committed, after hearing the parties framed charge of offence punishable under Section 302 I.P.C. against the accused / appellant Madan Singh on 02.09.1992 to which the accused pleaded not guilty and claimed to be tried. On this 4 prosecution got examined P.W.1 Laccham Singh (scribe of the First Information Report), P.W.2 Smt. Ganga Devi, who accompanied the deceased and accused to the Jungle soon before the incident, P.W.3 Ms. Radha, who saw accused / appellant Madan Singh along with Ganga Devi and Kamla Devi going towards the Jungle, P.W.4 Pan Singh, who witnessed the recovery of axe on pointing out of the accused, P.W.5 Lok Singh, who saw accused / appellant sharpening his axe (Ext.3) before he proceeded for Jungle, P.W.6 Mohan Singh Negi, Patwari, who investigated the crime and P.W.7 Dr. V.K. Kapoor, who conducted the postmortem examination on the dead body of Kamla Devi. The chemical examination report was also received from the forensic laboratory also corroborated that the articles sent to the laboratory contained human blood. The trial court put entire documentary and oral evidence to the accused under Section 313 Cr.P.C. in reply to which he alleged the same to be false. He denied having gone to Jungle on the day of incident. He further told the court that he has falsely been implicated and suspected that Ganga Devi might have committed murder of Kamla Devi. However, no evidence in defence was adduced on behalf of accused. The trial court after hearing the parties found accused Madan Singh guilty of offence punishable under Section 302 I.P.C. and convicted him accordingly. After hearing on sentence, the trial court sentenced the convict to imprisonment for life. Aggrieved by said judgment and order dated 16.06.1994, passed by Sessions Judge, Almora, in Sessions Trial No. 23 of 1992, this appeal was filed by the convict Madan Singh before Allahabad High Court on 1st August 1994, 5 where it was admitted on 2nd August 1994. The appeal is received by this Court under Section 35 of U.P. Reorganisation Act, 2000 (Central Act 29 of 2000), for its disposal. (5) Before further discussions, we think it just and proper to mention the ante mortem injuries recorded in the autopsy report (Ext.A-13) by Dr. V.K. Kapoor (P.W.7), who conducted the postmortem examination on 23.03.1992 at 11.45 on the dead body of Smt. Kamla Devi. The ante mortem injuries are reproduced as under:- (i) Incised wound 8cm x 4cm x 4cm on right side of neck, 3 cm below right ear. Shape elliptical, margin clean cut underlying candid artery, great veins, trachea, oesophagus are cut through. (ii) Incised wound 9cm x 4cm x 2cm on right side of neck, 2 cm below injury no. (i), elliptical shape, margin clean cut underlying muscle cut through. (iii) Incised wound 7cm x 4cm x 3cm on back of neck, bone deep, underlying 5th cervical vertebra cut through. 6 (iv) Lacerated wound 3cm x 2cm over left shoulder muscle deep. According to the Medical Officer V.K. Kapoor (P.W.7) cause of death of Kamla Devi was shock and haemorrhage as a result of ante mortem injuries. The aforesaid injuries recorded by Medical Officer clearly establish that Kamla Devi has died homicidal death. Now the question before us is whether accused / appellant Madan Singh has committed murder of Kamla Devi or not. (6) P.W.2 Ganga Devi is the star witness of this case who was accompanying the deceased and accused soon before the incident. She has narrated the prosecution story and stated that it was at about 3 p.m. on the day of incident when she along with Kamla Devi (deceased) and Madan Singh (accused) were cutting the wood in the Jungle. She has further stated that the three had gone to cut THANGRA (branches of pine tree used for giving support to the vines or climbing and creeping plants) to Aradi Jungle. After cutting one THANGRA, the witness stated that she came towards Dharamshala leaving Kamla Devi and Madan Singh in the Jungle. When she came back, she found Kamla Devi lying in a pool of blood. Accused Madan Singh was standing with axe (Ext.3) in his hand. He (accused Madan Singh) told her that his axe had hit at Kamla Devi and the accused further asked the witness not to disclose it to anyone, as he had not intentionally killed the deceased. P.W.2 7 Ganga Devi further stated that on coming back to her house she told about the incident to her in-laws. It is pertinent to mention here that accused Madan Singh is brother-in-law (JETH) of Ganga Devi (P.W.2). (7) The prosecution story narrated by P.W.2 Ganga Devi gets corroboration from the statement of P.W.3 Ms. Radha, who is sister-in-law (NANAD) of deceased Kamla Devi. This witness, who is a student, has stated that on the day of incident she had seen in the afternoon her sister-in-law Kamla Devi going towards Jungle with Madan Singh. This witness has further stated that name of husband of Ganga Devi is Kushal Singh, who is in job in Madhya Pradesh. She has further stated that she (Ganga Devi) used to live in the house of her brother-in- law (JETH) Madan Singh (accused). P.W.5 Lok Singh has also thrown light on the motive of commission of crime on the part of accused Madan Singh. He has stated that on the day of incident when he saw accused Madan Singh sharpening the axe in the village, he (Madan Singh) told him that he is disturbed, as Kamla Devi has defamed him and Ganga Devi. The statement of this witness relating to a fact forming part of same transaction, soon before the incident is admissible under Section 6 of Indian Evidence Act, 1872, as a relevant fact. (8) Apart from the above discussed evidence, there is yet another important fact on the record proved by the prosecution that the axe (Ext.3) used in the crime was recovered on pointing out of accused Madan Singh. P.W.4 Pan Singh has stated that the accused Madan Singh 8 disclosed Patwari (Investigating Officer) that he can get recovered the axe used in the crime. The witness has proved the recovery memo (Ext.A-5) prepared by Patwari in his presence. This axe (Ext.3) was sent for chemical examination and report dated 17.12.1992, received from the forensic laboratory, shows that the axe contained human blood. From the evidence discussed above, we are of the view that the prosecution has successfully proved the chain of circumstances establishing that the murder of Kamla Devi was committed by accused Madan Singh and none else. (9) Following are the circumstances which are proved on record from the evidence we have discussed above:- (i) In the Aradi Jungle accused Madan Singh had gone with Ganga Devi (P.W.2) and Kamla Devi (deceased) on 22.03.1992 in the afternoon. (ii) When Ganga Devi (P.W.2) after taking THANGRA (branch of pine tree used for giving support to the vines or climbing and creeping plants) went towards Dharmshala, on her return she found Kamla Devi lying in pool of blood and accused standing there with the axe in his hand. 9 (iii) There was no-one else left behind in Jungle by Ganga Devi except the two- accused and deceased, before the incident nor anyone else was seen when she reached back at the spot. (iv) During investigation axe (Ext.3) allegedly used in the crime was recovered on pointing out of the accused / appellant Madan Singh as stated by P.W.4 Pan Singh and P.W.6 Mohan Singh Negi (Investigating Officer). (v) The ante mortem injuries no. (i), (ii) and (iii) clearly show that the deceased was given blow on her neck by a sharp edged weapon thrice, which further corroborates that the crime was committed in the manner suggested by the prosecution. (vi) The report of the forensic laboratory shows that the axe (Ext.3) recovered on the pointing out of the accused, contained human blood. (vii) P.W.3 Ms. Radha has also corroborated the fact that she had last seen accused Madan Singh going towards the Jungle 10 along with Kamla Devi (deceased) and Ganga Devi (P.W.2). (viii) P.W.3 Ms. Radha has stated that husband of Ganga Devi used to work in Madhya Pradesh and she was living in the village in the house of her brother-in-law (accused Madan Singh). (ix) P.W.5 Lok Singh has stated that soon before the incident when he saw accused Madan Singh sharpening the axe before he proceeded for Jungle, he told him that he (accused) is disturbed, for Kamla Devi (deceased) had defamed him and his sister-in-law Ganga Devi. As such motive on the part of accused for commission of crime explained. (10) On behalf of accused / appellant Sri Raman Kumar Sah, learned Amicus Curiae submitted that the evidence adduced against the accused / appellant is unnatural and false. We have gone through the entire evidence on record and found that the narration of prosecution story as given by P.W.2 Ganga Devi is nothing but natural, which gets corroboration from the statements of other 11 witnesses, as discussed above. It is observed by the trial court that at the time of recording the statement of P.W.2 Ganga Devi while making her statement before the court and narrating the prosecution story, broke down and was consoled before further proceeding with her statement. Learned Amicus Curiae further contended that even if the statement of Ganga Devi and other witnesses is taken to be true, it is not the culpable homicide amounting to murder but an accidental death of Kamla Devi. Had there been only one blow of the axe in some other part of the body it could have been said that while Kamla Devi and Madan Singh were cutting the wood in the Jungle accidentally Kamla Devi might have suffered the injury but as many as three incised wounds on the neck of Kamla Devi clearly show that she was given blows with intention to cause her death and was murdered. (11) For the reasons as discussed above, we are of the view that this appeal has no force. The same is liable to be dismissed. The appeal is dismissed. The accused / appellant, if in jail, the Registry is directed to send the copy of this judgment to the Superintendent of Jail concerned. Lower court record be sent back to the trial court. (Dharam Veer, J.) (Prafulla C. Pant, J.) 02.09.2008 NS 12