RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL JAIL APPEAL NO.167 OF 2006 Rajendra Prasad ……… Appellant Versus The State ……… Respondent Dated: November 25, 2009 Sri B.B. Sharma, learned amicus curiae with Sri Kishore Kumar, Advocate for the appellant Sri Nandan Arya, learned AGA for the State Coram: Hon’ble B.C. Kandpal, J. Hon’ble Dharam Veer, J. PER HON. DHARAM VEER, J. This criminal jail appeal, preferred under section 374(2) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 13.6.2006 passed by the Sessions Judge, Uttarkashi in Sessions Trial No.11 of 2005, State Vs. Rajendra Prasad, whereby the learned Sessions Judge has convicted the appellant/accused u/s 328 of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced him to two years’ rigorous imprisonment with fine of Rs.2,000/- and in default of payment of fine, three months’ further simple imprisonment was awarded. The appellant-accused was further convicted u/s 302 IPC and was sentenced to life imprisonment with fine of Rs.5,000/- and in default of payment of 2 fine, six months’ further simple imprisonment was awarded. 2. We have heard learned counsel for the parties and perused the entire material available on record. 3. In brief, the prosecution case is that complainant Sunil (P.W.1) lodged an FIR before Revenue Police In-charge/Naib Tehsildar, Barkot stating therein that at Mauja Odgaon under Pokhari Bagi Naame Tok, the Goshalas of complainant and that of appellant-accused Rajendra Prasad were situated which were also adjacent to each other. The uncle of complainant Mahimanand on 28.5.2005 had gone to feed the cattle and also to get the grass and leaves from the nearby forest as usual. The appellant- accused, after considering that Mahimanand was not present in his Goshala, administered the poison in the food and drinking water of Mahimanand and thereafter the appellant-accused went in his field. At 11:00 A.M., when Mahimanand came back and eaten his food, then Mahimanand felt uneasiness and he came out while screaming. From the nearby place, Sabbla Lal (PW2), Moti Lal (PW6) and Parmanand (PW4) came there by running, to whom Mahimanand disclosed that in the morning, the appellant-accused abused him and also threatened to kill him and in consequence thereof, the appellant-accused administered poison in the food and water taken by him. After saying this, Mahimanand became unconscious. Then Sabbla Lal, Moti Lal and Parmanand took Mahimanand in the village in unconscious state and after reaching home, 3 Mahimanand again informed about the above-said incident to his family members and other villagers, who present there, in the state of unconsciousness. After some time, Mahimanand had died and the appellant- accused absconded from the place of occurrence. On the date of incident i.e. on 28.5.05 itself, Vinod and Lokendra had gone at the Patwari Chowki, however Patwari was not found there. Therefore with the aforesaid averments, the FIR was lodged by PW1 Sunil on 29.5.2005 at 4 PM, i.e. Ex.A-1. On this application, Naib Tehsildar Barkot directed the Patwari Kandari to register the case and for investigation. On the basis of that FIR Ex.A-1, PW10 Patwari Ramesh Prakash Bahuguna prepared Chik FIR of the case, i.e. Ex.A-7. In the same process, entry was also made in the G.D, the copy of which is Ex.Ka-8. (In Rural Hilly Areas of State of Uttarakhand, the Patwaris and certain Revenue Officials are being vested with police powers vide U.P. Govt. Notification No.494/VIII-418-16 dated 7.3.1916). Thereafter, the inquest on the dead body of Mahimanand was conducted by the I.O., i.e. Ex.A-2. The post-mortem on the dead body of Mahimanand was conducted by Dr. S.K. Verma PW7 on 30.5.2005 at 4:00 P.M. and prepared the post-mortem report, i.e. Ex.Ka-5. On 30.5.2005, the appellant-accused Rajendra Prasad was arrested for which the Fard Ex.A-3 was prepared. The I.O. also recovered a small empty bottle of poison, one small plastic bottle in which small quantity of poison was found from the Goshala (CHHANI) of the appellant-accused and for recovering the same, the I.O. also prepared Fard Ex.A-4. The I.O. 4 also recovered a bottle having poisoned water, and from a plastic box, boiled rice having poison, pieces of chapatti, and some quantity of curd on the spot and that was sealed and Fard Ex.A-6 was prepared. The I.O. also inspected the place of occurrence and prepared the site plan, i.e. Ex.A-9. The I.O. also sent some internal organs of dead body of Mahimanand as well as items recovered by him for chemical examination. The report was also given by Joint Director, Scientific Laboratory, Agra on 23.11.2005, which is also on record. The I.O. during investigation recorded the statements of witnesses and after completing the investigation, submitted the charge sheet against the appellant/accused in the court, i.e. Ex.A-11. 4. After receiving the charge sheet, learned J.M., Uttarakashi committed the case to the court of Sessions on 12.09.2005 after giving necessary copies to the appellant/accused as provided under Section 207 Cr.P.C. 5. Learned Sessions Judge, Uttarakashi has framed the charges against the appellant/accused u/s 328 IPC and u/s 302 IPC. The charges were read over and explained to appellant/accused, who pleaded not guilty and claimed to be tried. 6. To prove its case, the prosecution has examined P.W.1 Sunil, nephew of deceased and complainant, P.W.2 Sabla, who stated that the appellant-accused had entered in Goshala of Mahimanand, P.W.3 Barfiya Ram and P.W.4 5 Parmanand, before whom Mahimanand also informed about the incident, P.W.5 Shiv Dass, before whom the appellant-accused threatened the deceased Mahimanand to his life, P.W.6 Moti Ram, before whom also the deceased stated that the appellant-accused administered poison in the food and water, P.W.7 Dr. S.K. Verma, who conducted the post-mortem, P.W.8 Bhagwat Ram & P.W.9 Vasva Nand, before them also the deceased disclosed about the above-said incident, P.W.10 Patwari Ramesh Prakash Bahuguna, I.O. of the case, P.W.11 Ghanshyam, who stated that some quarrel used to take place between the appellant- accused and deceased about the partition of property and P.W.12 Suhkvir Singh, Patwari, who submitted the charge sheet. 7. After that the statement of the appellant/ accused was recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to him in question form, who denied the allegations made against him and stated that he has been falsely implicated. 8. After hearing learned counsel for the parties and appreciating the entire material available on record, the learned Sessions Judge, Uttarakashi vide judgment and order dated 13.6.2006 convicted and sentenced the appellant/accused as discussed above. Feeling aggrieved by the aforesaid judgment and order, the accused/appellant has preferred the present appeal. 9. Before any further discussion, it is pertinent to mention that the post-mortem on the dead body of 6 deceased Mahimanand was conducted by Dr. S.K. Verma (P.W.7) on 30.5.2005 at 4:00 PM and the medical officer found as under: - No ante-mortem injuries seen. Stomach-contains undigested food (preserved in whole) Small intestine-Semi-digested food material and gases present (preserved) Large intestine-fecal matter and gases present Liver- congested liver (a piece liver with gall bladder preserved) Spleen-congested and preserved as a whole Kidneys-congested, left kidney preserved In the opinion of medical officer, cause of death was uncertain. So, viscera was preserved chemical analysis, duration 1 to 3 days.” 10. To prove the post-mortem report, the prosecution has examined PW7 Dr. S.K. Verma who stated that on 30.5.2005 at 4:00 P.M., he conducted the post-mortem on the dead body of Mahimanand and found as above. Cause of death could not be ascertained and some internal organs and viscera were preserved for chemical analysis. Time of death was 1-3 days old. He also proved the post-mortem report Ex.Ka-5. 7 11. To further prove its case, the prosecution has examined P.W.1 Sunil who stated that on 28.5.2005, his uncle Mahimanand had gone in his Goshala which is at Pokhari Baagi, Naame Tok within the circle of Oad village. The Goshalas of appellant-accused and that of his uncle were at a common place and at the time of incident, the appellant-accused was residing in that Goshala alone while his (Sunil’s) uncle Mahimanand was living in his Goshala (CHHANI) along with cattle. On the morning of date of incident, his uncle Mahimanand had gone in the forest to get grass and leaves. At about 11:00 A.M., his uncle had returned in his Goshala (CHHANI). He was informed by Sabla, Moti Lal and Parmanand that deceased Mahimanand told them that the appellant-accused had administered poison in the drinking water and the food as a result of which his uncle started feeling uneasiness and restlessness. On the noise raised, Parmanand, Moti Lal, Sabla and Barfiya had come on the place of occurrence before whom his uncle had informed about the incident. Deceased Mahimanand was brought in his house by witnesses Parmanand, Sabla, Moti Lal and Barfiya. Mahimanand, in the state of semi-consciousness, had informed several persons in his house that the appellant-accused had administered poison in his food. On the date of incident also, Lokendra and Vinod of the village were sent to get the doctor and to lodge the report at Patwari Chowki but neither Patwari nor the doctor could be found. In the evening at about 6:00 PM, the deceased had died. On the next day i.e. on 29.5.2005 he went in the Tehsil headquarters and gave 8 application to Naib Tehsildar, who directed Patwari to lodge the report of the incident. Thereafter, he lodged the report of the incident at Patwari Chowki Kandari, i.e. Ex.Ka-1. This witness was cross-examined at length by the defence counsel but nothing has come out in his statement which may create any doubt in his statement. The statement of this witness is reliable and believable. 12. The statement of P.W.1 Sunil gets fully corroborated from the evidence of P.W.2 Sabla, P.W.3 Barfiya and P.W.4 Parmanand, before whom the deceased had informed that the appellant-accused confessed poison in the water and food. 13. P.W.5 is Shivdass who stated that on 27.5.2005 at about 7:00 A.M., he was going in his Goshala and as soon as he reached in front of Goshalas of appellant-accused and that of Mahimanand (deceased), he saw that some quarrel was taking place between the appellant-accused and Mahimanand. He also stated that the appellant-accused had threatened Mahimanand to his life. He tried to intervene but the appellant-accused did not agree and was threatening to kill Mahimanand. After that he went at his Goshala (CHHANI). The statement of this witness is also reliable and believable. 14. P.W.6 is Moti Ram who stated that on the date of incident, he saw the appellant-accused Rajendra Prasad while going inside the Goshala (CHHANI) of Mahimanand and the appellant-accused was having a small box in his hand and the appellant- 9 accused was also taking out the water from that box. After that the appellant-accused came out and went in his own Goshala. Later on Mahimanand came in his CHHANI after taking grass, leaves etc. and then he went inside CHHANI. Soon thereafter, a sound of screaming came inside the CHHANI on which he along with Paramanand and Sabla went inside the CHHANI of Mahimanand and after some time Barfiya also came there. Mahimanand informed them that he ate the food and drank the water due to which he is feeling uneasiness. Mahimanand also informed them that the appellant-accused Rajendra Prasad had administered the poison in his food and water. Mahimanand also informed him that in the morning, appellant-accused Rajendra Prasad quarreled with him and thereafter Mahimanand started becoming unconsciousness and after taking him in the home, in the evening, Mahimanand had died. This witness was cross- examined at length by the defence counsel but nothing has come out in his statement which may create any doubt in his statement. The statement of this witness is reliable and believable. 15. P.W.8 Bhagat Ram has stated that on 28.5.2005 he saw that Parmanand, Sabla and Moti Ram were taking Mahimanand at his house from his CHHANI. On making enquiry from Parmanand, Parmanand informed him that the appellant-accused had administered the poison to Mahimanand. He saw that some foam was coming from his mouth and he was semi-unconscious and was speaking slowly. When he enquired from Mahimanand, then he informed him 10 that the appellant-accused had administered poison in the food and water due to which this situation had occurred. Deceased also informed him that the appellant-accused also quarreled with him earlier. Then they have sent two persons to get the doctor, however the doctor was not there. In the evening at about 5-6 PM, Mahimanand had died. On 29.5.2005 he had gone on the place of occurrence along with the Patwari from where the Patwari took the rice, chapatti and water tank in his possession and prepared Fard, i.e. Ex.Ka-6 and he also proved the same. 16. P.W.9 Vasvanand has also fully corroborated the evidence of P.W.8 Bhagat Ram. 17. P.W.10 Ramesh Prakash Bhaguna, Patwari/ IO of the case who stated that on the basis of report Ex.Ka-1 lodged by Sunil, he prepared Chik FIR of the case, i.e. Ex.A-7. Entry was also made in the G.D., the copy of which is Ex.A-8. On 29.5.2005 itself he went on the place of occurrence and prepared inquest report Ex.A-2. He also prepared the site plan of the place of occurrence, i.e. Ex.A-9. He also recovered cooked rice and poisoned water from the place of occurrence and prepared Fard, i.e. Ex.A-6. On 30.5.2005 he sent the dead body for conducting the post-mortem at District Hospital and also wrote a letter to Naib Tehsildar, Barkot, i.e. Ex.Ka-10. He also recovered a tin box and plastic bottle having poison from the CHHANI of the appellant-accused and prepared Fard, i.e. Ex.A-4. After his transfer, further investigation was conducted by Patwari Sukhvir Singh. 11 18. P.W.11 Ghanshyam who stated that due to dispute of partition, some hot talks used to take place between the appellant-accused and deceased Mahimanand and the appellant-accused also used to threaten the deceased. He was appointed Panch when the inquest was done by the Patwari and he also signed on the inquest report, i.e. Ex.A-2. On 4.6.2005 he went on the CHHAN of the appellant-accused along with Parmanand and Bhagat Ram from where the Patwari had recoverd a tin box and plastic bottle and prepared Fard, i.e. Ex.A-4. 19. P.W.12 Sukhbir Singh, Patwari/IO of the case who stated that on 16.8.2005 he was entrusted with the investigation of this case. During investigation he recorded the statements of witnesses and after completing the investigation, he field the charge sheet against the appellant-accused, i.e. Ex.A-11. 20. After that the statement of the appellant/ accused was recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to him in question form, who denied the allegations made against him and stated that he has been falsely implicated. 21. Sri B.B. Sharma, learned amicus curiae and Sri Kishore Kumar, Adv., appearing on behalf of the appellant-accused, argued that as per the above-said discussion, the case is not proved beyond reasonable doubt against the appellant-accused. We do not find any force in this argument for the following reasons: - 12 22. The prosecution, in order to prove its case, has examined P.W.1 Sunil who stated that on 28.5.2005, his uncle Mahimanand had gone in his Goshala which is at Pokhari Baagi, Name Tok within the circle of Oad village. The Goshala of appellant-accused and that of his uncle were at a common place and at the time of incident, the appellant-accused was residing in that Goshala alone while his uncle Mahimanand was living in his Goshala (CHHANI) along with cattle. On the morning of date of incident, his uncle Mahimanand had gone in the forest to get grass and leaves. At about 11:00 A.M., his uncle had returned in his Goshala (CHHANI). He was informed by Sabla, Moti Lal and Parmanand that deceased Mahimanand told them that the appellant-accused had administered poison in the drinking water and the food as a result of which his uncle started feeling uneasiness and restlessness. On the noise raised, Parmanand, Moti Lal, Sabla and Barfiya had come on the place of occurrence before whom his uncle had informed about the incident. Deceased Mahimanand was brought in his house by witnesses Parmanand, Sabla, Moti Lal and Barfiya. Mahimanand, in the state of semi-consciousness, had informed before him and several persons in his house who were present there that the appellant-accused had administered poison in his food and water. In the evening at about 6:00 PM, Mahimanand had died. On the next day i.e. on 29.5.2005 he went in the Tehsil headquarters and gave application to Naib Tehsildar, who directed Patwari to lodge the report of the incident. Thereafter, he lodged the report of the 13 incident at Patwari Chowki Kandari, i.e. Ex.Ka-1. The statement of this witness is reliable and believable and gets full corroboration from the statements of P.W.2 Sabla, P.W.3 Barfiya and P.W.4 Parmanand. 23. Besides the above, the prosecution has also examined P.W.5 Shivdass who also stated that on 27.5.2005 at about 7:00 A.M., he was going in his Goshala and as soon as he reached in front of Goshalas of appellant-accused and that of Mahimanand (deceased), he saw that some quarrel was taking place between the appellant-accused and Mahimanand. He also stated that the appellant-accused had threatened Mahimanand to his life. He tried to intervene but the appellant-accused did not agree and was threatening to kill Mahimanand. Likewise, P.W.6 Moti Ram has also stated that on the date of incident, he saw the appellant-accused Rajendra Prasad while going inside the Goshala (CHHANI) of Mahimanand and the appellant-accused was having a box in his hand and the appellant-accused was also taking out the water from the box which he was carrying. After that the appellant-accused came out and went in his own Goshala. Later on Mahimanand came in his CHHANI after taking grass, leaves etc. he went inside CHHANI. Soon thereafter, a sound of screaming came inside the CHHANI on which he along with Paramanand and Sabla went inside the CHHANI of Mahimanand and after some time Barfiya also came there. Mahimanand also informed them that the appellant-accused Rajendra Prasad had administered the poison in his food and water. Mahimanand further informed him that in the 14 morning, appellant-accused Rajendra Prasad quarreled with him and thereafter Mahimanand started becoming unconsciousness and after taking him in the home, in the evening, Mahimanand had died. The statement of P.W.5 Shivdass and P.W.6 Motiram also gets full corroboration from the evidence of P.W8 Bhagat Ram and P.W.9 Vasvanand. Similarly, P.W.11 Ghanshyam has also stated that due to some dispute of partition, some hot talks used to take place between the appellant-accused and deceased Mahimanand and the appellant-accused also used to threaten the deceased. On 4.6.2005 he went on the CHHAN of the appellant- accused along with Parmanand and Bhagat Ram and before whom the Patwari had recovered a small tin box and a small plastic bottle and after taking the same into possession, prepared Fard, i.e. Ex.A-4. 24. Further, since the medical officer P.W.7 Dr. S.K. Verma could not ascertain the cause of death of Mahimanand, hence he preserved the Viscera for chemical analysis. The I.O. also sent the internal organs of dead body of deceased Mahimanand for which Viscera was preserved by the medical officer as well as the articles recovered by him viz. boiled rice, recovered water and some liquid material sealed in the tin box and plastic bottle at the scientific laboratory, Agra. The report sent by the Joint Director, Scientific Laboratory, Agra is on record. It has been opined that in the in the parts of Viscera (items no.1 to 7) i.e. stomach, piece of large intestine, piece of small intestine, piece of liver, one kidney, spleen and piece of lung as well as in items Nos.9 to 12 viz. boiled rice, 15 colourless liquid and liquid material having dust colour, which was sealed in a tin box; in the above-said items Chlorpyrifos poison. In item no.12 i.e. dust coloured liquid material in a plastic bottle, Organo Chloro Insecticide was found. Thus, it is proved that the poison recovered from the Goshala of the appellant- accused was the same poison which was recovered from the house of deceased administered by the appellant-accused in the food and water. Even in the Viscera of the appellant-accused preserved by P.W.7 Dr. S.K. Verma sent by the I.O. for the chemical examination, the same poison Chlorpyrifos was found. 25. Therefore, all these facts clearly establishes that he is only the appellant-accused Rajendra Prasad who administered the poison in the food and drinking water after consuming which Mahimanand felt uneasiness and he became restless and accordingly at 6:00 P.M. he had died. 26. Thus, as per the above-said discussion, it is proved that there was previous enmity between the appellant-accused and the deceased Mahimanand due to partition of property and for this reason, the appellant-accused used to abuse and quarrel with the deceased and for several times also, the appellant- accused threatened the deceased Mahimanand to kill him. It is also clear that the Goshala (CHHAN) of the appellant-accused and that of deceased Mahimanand were adjacent to each other. On the morning of the date of incident also, some quarrel took place between the appellant-accused and deceased. Deceased 16 Mahimanand prepared food for him in his CHAANI and after that he went in the forest to get the grass and leave. In the absence of Mahimanand, appellant- accused Rajendra Prasad went in the CHAAN of deceased after taking a box and after some time he came back and he was also seen by the other witnesses. When Mahimanand returned back, he ate his food and drank the water and after that he started feeling uneasiness and restlessness and he raised noise. When the witnesses PW2 Sabla, PW6 Moti Lal, PW4 Parmanand enquired him then he disclosed that the appellant-accused Rajendra Prasad quarreled with him in the morning and the appellant-accused Rajendra Prasad also administered the poison in the food and drinking water. The viscera of internal organs of deceased and the tiny box and tiny bottles recovered from the house of appellant-accused and from the house of deceased were sent for chemical examination and in the investigation, poison was found and that poison was the same which was recovered by the I.O. Thus, considering the above-said facts and circumstances of the case, it is proved that the appellant-accused with the intention to kill Mahimanand administered poison in the food and drinking water as a result of which he had died. Therefore, the prosecution has been fully successful in proving its case against the appellant-accused beyond reasonable for the offences punishable under Sections 328 IPC and 302 IPC. Therefore, we confirm the conviction and sentence of the appellant-accused under the aforesaid sections as discussed above. 17 27. For the reasons recorded above, the appeal is devoid of merits and is hereby dismissed. The judgment and order dated 13.06.2006 passed by the Sessions Judge, Uttarkashi in S.T. No.11/2005, State Vs. Rajendra Prasad, convicting and sentencing the appellant-accused as discussed above, is hereby confirmed. 28. Let the record of the case be sent back to the trial court concerned for compliance. (Dharam Veer, J.) (B.C. Kandpal. J.) 25-11-2009 Rajeev Dang