IN THE HGH COURT OF UTTANCHAL AT NAINTIAL COURT’S ORDER WHETHER THE CASE IS OR IS NOT APPROVED FOR REPORTING [Chapter VIII, Rule 32(2) (b)] Description of case Criminal Appeal No. 773 of 2001 Decided on: March 7, 2008 A.F.R. (Approved for Reporting ) Not approved for Reporting Date 07.03.2008 (Initial of Judge) Note: Bench Reader will attach this at the top of the first page of the judgment when it is put up before the Judge for signature. Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 773 of 2001 (Old No. 1559 of 1991) 1. Dayal Singh S/o Chandan Singh 2. Smt. Mula Devi W/o Dayal Singh 3. Smt. Rajmati W/o Kalyan Singh All residents of Jaikot, Patti Quili, Tehsil Narendranagar, District Tehri Garhwal. …………… Appellants Versus The State …………….. Respondent Mr. Sandeep Tandon, Advocate for the appellants. Mr. Amit Bhatt, Addl. Govt. Advocate for the respondent-State. Coram : Hon’ble Prafulla C. Pant, J. Hon’ble Dharam Veer, J. Hon. Prafulla C. Pant, J. (Oral) This appeal, preferred under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), is directed against the judgment and order dated 16.08.1991, passed by the then learned Sessions Judge, Tehri Garhwal, in Sessions trial No. 19 of 1990, whereby accused / appellant Dayal Singh has been convicted under Section 302 and 201 of the Indian Penal Code, 1860 (hereinafter referred as I.P.C.), and the remaining two accused / appellants, namely Smt. Mula Devi and Smt. Rajmati are convicted under Section 302 read with Section 34 of I.P.C. and under Section 201 of I.P.C.. Each one of the convict has been sentenced to undergo imprisonment for life under Section 302 (read with Section 34 for accused / appellants Smt. Mula Devi and Smt. Rajmati) and rigorous imprisonment for a period of two years under Section 201 of I.P.C. 2) Heard learned counsel for the parties and perused the lower court record. 3) Prosecution story, in brief, is that Puola Devi (deceased), daughter of P.W. 3 Amar Singh, was married to Kamal Singh, son of accused / appellant Dayal Singh in Village Jaikot, District Tehri Garhwal. Accused / appellant Mula Devi is mother-in-law and accused / appellant Rajmati is sister-in-law- (Jethani) of the deceased. Puola Devi, whenever visited her parental house always complained about the harassment being made to her by the accused / appellants. She often told that her in-laws used to ask her to give her jewellery to them else hey would kill her. On 30.05.1990, P.W. 3, Amar Singh (father of the deceased), who used to work in Delhi received a massage there that his daughter Puola Devi has died. On the next day, at about 05:00 P.M, he proceeded for his home Village Kulpi, District Tehri Garhwal, and reached there on 01.06.1990. He went to the Patwari and came to know that dead body of his daughter has already been taken to Narendra Nagar. (In the interior hills of Uttarakhand. Certain Revenue Officials are given the police powers). Meanwhile, P.W. 1, Lal Singh, uncle of the deceased, had already lodged the first Information report on 30th of May 1990, after he received information that Puola Devi had died in her in-laws house. In the first information report (Ext. A – 1), P.W. 1, Lal Singh has mentioned that Puola Devi was married to son of Dayal Singh in Village Jaikot, where she used to get harassment at the hands of her in- laws. He has also stated in his report that whenever Puola Devi used to come to her parental village she complained of the harassment meted out to her by the accused / appellants. She had apprehended that she would be killed in her in-laws house. P.W. 1, Lal Singh at the end of the first information report expressed suspicion that after committing murder of his niece Puola Devi, kerosene oil was pured over her body and it was set on fire to conceal the fact of murder. On the basis of the first information report, Crime No. 02 of 1990 was registered against all the three accused / appellants under Section 302 and 201 of I.P.C. by Patti Patwari, Baman Gaon. The dead body of the deceased was taken into possession by P.W. 5 Kapur Singh Payal, Patwari, who initially investigated the crime. He prepared the check report (Ext. A -3) on the basis of the first information report received from Lal Singh and made necessary entry in the general diary, copy of extract of which is Ext. A -4. He inspected the spot, took the dead body in his possession, prepared the inquest report (Ext. A -2) and other necessary papers including sketch of the dead body (Ext. A -6), police form No. 13 (Ext. A-7), sample of seal (Ext. A -8). He also prepared the site plan (Ext. A -5). The dead body was sent for postmortem examination. P.W. 7, Dr. P.P. Raturi, Medical Officer, Narendra Nagar conducted the autopsy on the dead body of Puola Devi on 01.06.1990, at 10:00 A.M., and prepared the postmortem examination report (Ext. A -11). The cause of death in the opinion of the Medical Officer was asphyxia as a result of ante mortem strangulation. He also found postmortem burn injuries. Subsequently, the investigation was taken up by P.W. 6, Bachchan Singh, Patwari, who further interrogated the witnesses and arrested the accused / appellants. After completion of the investigation, he submitted charge sheet (Ext. A -10) against all the three accused for their trial in respect of the offences punishable under Section 302 and 201 of 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 trial court, after hearing the parties, on 10.12.1990, framed charge of offences punishable under Section 302 read with Section 34 of I.P.C. and the one punishable under Section 201 of I.P.C. against all the three accused namely Dayal Singh, Mula Devi and Rajmati. All the accused pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1, Lal Singh (Informant and uncle of the deceased); P.W. 2, Baishakhu (an alleged eyewitness); P.W. 3, Amar Singh (father of the deceased); P.W. 4, Avtar Singh (neighbor of accused and the deceased); P.W. 5, Kapur Singh Payal, Patwari ( who initially investigated the crime); P.W. 6, Bachan Singh ( who completed the investigation and submitted charge sheet) and P.W. 7, Dr. P.P. Raturi ( who conducted the postmortem examination on the dead body of Puola Devi). The oral and documentary evidence was put to the accused under Section 313 of Cr.P.C. by the trial court, in reply to which the accused (applicants) alleged that the evidence adduced against them was false. However, it is admitted under Section 313 of Cr.P.C. by all the three accused that Puola Devi (deceased) was married to Kamal Singh, son of Dayal Singh. Accused Dayal Singh in his replies has also stated that at the time of incident he was not in the village. However, no evidence in defence was adduced. After hearing the parties, the trial court found accused Dayal Singh guilty of offence punishable under Section 302 of I.P.C. and that of one punishable under Section 201 of I.P.C. it further found accused Mula Devi and Rajmati guilty of offence punishable under Section 302 read with Section 34 of I.P.C. and one punishable under Section 201 of I.P.C. Each one of the convicts is sentenced by the trial court to undergo imprisonment for life under Section 302 of I.P.C. (in the case of Mula Devi and Rajmati read with Section 34 of I.P.C.) and rigorous imprisonment for a period of two years under Section 201 of I.P.C. Aggrieved by said judgment and order dated 16.08.1991, passed by the Sessions Judge, Tehri Garhwal, in Sessions Trial No. 19 of 1990, this appeal was preferred by the three convicts before the Allahabad High Court on 22.08.1991, where it was admitted on next day i.e. 23.08.1991. The appeal is received by transfer to this Court under Section 35 of the U.P. Re-organization Act, 2000, for its disposal. 5) Before further discussion, it is pertinent to mention here the ante mortem and postmortem injuries recorded by P.W. 7, Dr. P.P. Raturi, who conducted the postmortem examination and prepared the autopsy report (Ext. A -11). The same are being reproduced below: - Ante mortem injuries: Contusion 10 cm X 6 cm on the front of the neck extending on the both sides 4 cm below the chin. On dissection there is extrvasation of blood in subcutaneous tissue. Adjacent neck muscle are lacerated. Greater Cornu of Hyoid bone on right side fractured. Postmortem Injuries: There is burn injuries over head, face, chest, abdomen, both upper limbs and both thighs. There is no line of redness and no vesication.. The cause of the death, according to the Medical Officer, who conducted the postmortem examination, is recorded to be ‘death due to asphyxia as a result of ante mortem strangulation.’ 6) The above medical report prepared by the Medical Officer, P.W. 7, Dr. P.P.Raturi, shows and establishes that Puola Devi was murdered by strangulation and, thereafter, burn injuries were caused in an attempt to conceal the evidence of commission of crime. Now, the question is who has done it? 7) From the statements of the witnesses, namely P.W. 1, Lal Singh (uncle of the deceased) and P.W. 4 Avtar Singh (resident of Village Jaikot and neighbor of the accused) it is clearly established on record that the dead body of Puola Devi is found in the house of accused / appellant Dayal Singh in Village Jaikot, where accused / appellants Mula Devi and Rajmati used to live with Puola Devi (deceased). As far as presence of accused Dayal Singh at the time of the incident in his house in Village Jaikot is concerned, the same does not appear to have been proved beyond reasonable doubt, by the prosecution. In the statement of P.W. 1, Lal Singh, it has come that accused Dayal Singh had two wives one in Village Kathur and antoher in Village Jaikot. It has also come on record that he used to live in Village Jaikot, but at times he used to live in Village Kathur. P.W. 4. Avtar Singh, neighbor of the accused Dayal Singh, Mula Devi and Rajmati in Village Jaikot, has stated in his cross examination that after the incident when he reached at the spot, accused Dayal Singh was not there, and he was told by Mula Devi that Dayal Singh had gone to Village Kathur. This creates a reasonable doubt in the prosecution story to the extent of involvement of accused Dayal Singh in the commission of murder of his daughter- in-law Puola Devi, and in causing disappearance of the evidence of commission of her murder. As such, it cannot be said that as against accused / appellant Dayal Singh, prosecution has successfully proved beyond reasonable doubt the charge of offences punishable under Section 302 of I.P.C. or the one punishable under Section 201 of I.P.C. 8) As far as the statement of P.W. 2, Baishakhu, an alleged eyewitness is concerned, on close scrutiny this Court does not find his presence natural at the place of incident. This witness belongs to Village Payal Gaon. His presence in Village Jaikot, at 8:00 P.M., is doubtful. Had he seen that accused Mula Devi and Rajmati had caught the legs of the deceased and Dayal Singh was strangulating her, he could have informed the same in the parental house of the deceased in Village Kulpi, as he was known to them. His statement that due to the fear he did not disclose the incident to anyone does not appear reliable, for the reason that it is nobody’s case that he was seen by the accused or anyone else, witnessing the incident. The incident has occurred inside the house, as is clear from the site plan and the statements of the investigating officer. However, even after discarding evidence of P.W.2 Baishakhu, still there is sufficient circumstantial evidence on record which proves the charge of offence punishable under Section 302 read with Section 34 of I.P.C. and one punishable under Section 201 of I.P.C., as against accused / appellants Mula Devi and Rajmati. The chain of circumstances as against them is complete on the record. The circumstances are:- i) It is established on record that Puola Devi (deceased) was daughter-in-law of Mula Devi and sister-in-law of Rajmati and she used to live with them. ii) it is established on record from the statement of P.W. 1, Lal Singh, uncle of the deceased and P.W. 3, Amar Singh, father of the deceased that accused Mula Devi and Rajmati used to harass Puola Devi (deceased), and whenever she visited her parental house she always expressed apprehension that she might be killed on any day by them. iii) It is established on record from the medical evidence that cause of death of Puola Devi is asphyxia as a result of ante mortem strangulation. iv) It is established from the oral evidence that there were burn injuries on the body of the deceased and from the medical evidence it is also established that the burn injures were postmortem. v) It is also established on the record that incident had occurred inside the house where accused Mula Devi and Rajmati used to live. It is not the case of the defence that anyone else was there in the house at that juncture. vi) No first information report was lodged regarding death of Puola Devi from the side of the accused. 9) In the above circumstances proved on record, having considered the oral and documentary evidence and the submissions made by learned counsel for the parties, for the reasons as discussed above, we are of the view that the charge of offence punishable under Section 302 read with Section 34 of I.P.C. and the one punishable under Section 201 of I.P.C. is proved beyond reasonable doubt against the accused / appellants, namely Mule Devi and Rajmati. But the same is not proved beyond reasonable doubt as against accused / appellant Dayal Singh for the reasons discussed above. 10) Therefore, the appeal deserves to be allowed partly. The appeal of Dayal Singh is allowed. His conviction and sentence recorded by the trial court in respect of offence punishable under Section 302 of I.P.C. and one punishable under Section 201 of I.P.C. is set aside, giving him benefit of doubt. He is acquitted of the charge. If in jail, he shall be set at liberty forthwith, provided he is not required in connection with any other crime. But, the appeal of accused / appellants Mula Devi and Rajmati is dismissed. Their conviction and sentences awarded against them on the charge of offences punishable under Section 302 read with Section 34 of I.P.C. and the one punishable under Section 201 of I.P.C., are affirmed. Lower court record be sent back to the trial court concerned to make the two seve out the sentence awarded against them. If they are on bail, their bail stands cancelled. (Dharam Veer, J.) (Prafulla C. Pant, J.) Dt. March 07 , 2008. H. Negi