Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 1681 of 2001 (Old No. 93 of 1999) 1. Vijai Singh S/o Sri Ram Singh R/o Village Pipola, Patti Jakhanidhar Tehsil Pratapnagar, District Tehri Garhwal. 2. Vinod Singh S/o Sri Dharam Singh R/o Village Tipri, Patti Khas, Police Station Tehri, District Tehri Garhwal. ...…………. Appellants Versus State of U.P. (Now State of Uttarakhand) ...…………. Respondent Mr. S.K. Aggarwal, Sr. Advocate, assisted by Mr. Lokendra Dobhal, Advocate, present for the appellants. Mr. Nandan Arya, Asstt. Government Advocate, present for State. Along with 2 Criminal Appeal No. 1679 of 2001 (Old No. 191 of 1999) Dharam Singh S/o Sri Inder Singh R/o Daru Ka Khand Patti Dharmandal D istrict Tehri Garhwal. ...…………. Appellant Versus State of U.P. (Now State of Uttarakhand) ...…………. Respondent Mr. S.K. Aggarwal, Sr. Advocate, assisted by Mr. Lokendra Dobhal, Advocate, present for the appellant. Mr. Nandan Arya, Asstt. Government Advocate, present for State. Coram : Hon’ble Prafulla C. Pant, J. Hon’ble Nirmal Yadav, J. Per: Hon. Prafulla C. Pant, J. Both these appeals, preferred under Section 374 of the Code of Criminal Procedure, 1973 (for short Cr.P.C.), are directed against the same judgment and order dated 16th January 1999, passed by Sessions Judge, Tehri Garhwal, in Sessions Trial No. 24 of 1994, 3 whereby accused / appellants Vijai Singh, Vinod Singh and Dharam Singh have been convicted under Section 304 read with Section 34, and one punishable under under Section 201 of the Indian Penal Code, 1860 (for short I.P.C.), and each one of them is sentenced to undergo imprisonment for life (under Section 302 / 34 of I.P.C.), and rigorous imprisonment for a period of seven 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 a first information report (Ext. A –2) was lodged with Patwari Circle Naya Jakhnidhar, District Tehri Garhwal, on 01.02.1994, at about 08:00 P.M., against accused / appellants Vijai Singh, Vinod Singh, Dharam Singh and one Gyan Singh, by P.W. 2 Kundan Lal, alleging that his nephew Devendra Dutt (deceased), a teacher, had gone to his school on 31.01.1994, at 08:00 A.M., and did not come back to his home. It was further mentioned in the first information report that on enquiry he came to know that in the evening hours (on 31.01.1994) Devendra Dutt (deceased) had gone to a roadside hotel in Jakhnidhar belonging to Gyan Singh, to have his meals, from where he came out and started urinating in front of the hotel. On this, accused / appellant Vinod Singh, a servant in said hotel, objected 4 to it, and the two had altercation. Thereafter, Devendra Dutt came to the room of P.W. 4 Sohan Lal, where P.W. 3 Khushi Ram and P.W. 5 Dharam Dutt joined him. Meanwhile, accused / appellant Vinod Singh accompanied with accused / appellants Vijai Singh and Dharam Singh forcibly entered in the room of Sohan Lal and started beating Devendra Dutt with kicks and fists. To save himself Devendra Dutt ran out of the room. Accused / appellants Vijai Singh, Vinod Singh and Dharam Singh chased him. Accused / appellant Vinod Singh was armed with a cycle chain. They chased Devendra Dutt and came back after three hours and threatened Sohan Lal of dire consequences, if he dared to disclose about the incident to anyone. P.W. 2 Kundan Lal, in the first information report, suspected that the three accused / appellants along with Gyan Singh have committed murder of Devendra Dutt and concealed his body. Patwari Nawakot registered the report as Crime No. 01 of 1994, relating to offences punishable under Section 302 / 34 and 201 of I.P.C. against the four accused, namely Vijai Singh, Vinod Singh, Dharam Singh and Gyan Singh. (In Uttarakhand hills vide U.P. Government Notification No. 494 / VIII – 418 –16 dated 7th March 1916, certain revenue officials are given police powers). During investigation, on 02.02.1994, dead body of Devendra Dutt was found in a corner of sloping ground, near Jakhnidhar. The Investigating Officer (Patwari Nawakot) took the dead body in his possession, sealed 5 it, and prepared inquest report (Ext. A –6). He further prepared sample seal, sketch of dead body (Ext. A –8), site plan (Ext. A –5) and letter to the Medical Superintendent (Ext. A –7), and got sent the dead body for postmortem examination. P.W. 1 Dr. Bhuwan Chandra Pathak conducted the postmortem examination on dead body of Devendra Dutt on 03.02.1994, and prepared autopsy report (Ext. A –1). After recording 20 ante mortem injuries, he opined in the autopsy report that cause of death was coma due to ante mortem head injury No. (xx), caused by blow of hard blunt object. After interrogating the witnesses and completing investigation, the Investigating Officer submitted charge sheet (Ext. A –10) against four accused, namely Vijai Singh, Vinod Singh, Gyan Singh and Dharam Singh, for their trial in respect of offences punishable under Section 302 / 34, 201, 457 and 120-B of I.P.C. 4) The Magistrate, on receipt of the charge sheet after giving necessary copies, as required under Section 207 of Cr.P.C., appears to have committed the case to the court of sessions for trial. Meanwhile, forensic laboratory report was also received regarding the sealed blood stained soil and simple soil, earlier sent for chemical analysis. Learned Sessions Judge, Tehri Garhwal on 21.07.1995, after hearing the parties, framed charge of offence punishable under Section 302 read with Section 34 of I.P.C., and one punishable 6 under Section 201 of I.P.C. against accused Gyan Singh, Dharam Singh and Vinod, who pleaded not guilty and claimed to be tried. Similar charge was framed separately against accused Vijai Singh on 12.10.1995. He too pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1 Dr. Bhuwan Chandra Pathak (who conducted the postmortem examination); P.W. 2 Kundan Lal (complainant); P.W. 3 Khushi Ram; P.W. 4 Sohan Lal; P.W. 5 Dharam Dutt and P.W. 6 Jaidev Prasad Dobhal Patwari (Investigating Officer). The oral and documentary evidence was put to the accused under Section 313 of Cr.P.C., in reply to which the accused pleaded that the same was false. However, no evidence in defence was adduced. The trial court, after hearing the parties, found that no charge is proved against accused Gyan Singh, and he was acquitted of the charge framed against him. However, the remaining three accused, namely Vijai Singh, Vinod Singh and Dharam Singh were found guilty by the trial court, in respect of offence punishable under Section 302 / 34 of I.P.C., and one punishable under Section 201 of I.P.C. After hearing on sentence, each one of the three, was sentenced to imprisonment for life (under Section 302 / 34 of I.P.C.), and rigorous imprisonment for a period of seven years (under Section 201 of I.P.C.). Aggrieved by said judgment and order dated 16.01.1999, passed by Sessions Judge, Tehri Garhwal, these two appeals were filed by the convicts before the Allahabad High 7 Court from where the same are received under Section 35 of the U.P. Re-organization Act 2000 (Central Act No. 29 of 2000) for their disposal. 5) Before further discussion, this court thinks it just and proper to mention here the ante mortem injuries found by P.W. 1 Dr. Bhuwan Chandra Pathak on 03.02.1994, on the dead body of Devendra Dutt, which are recorded in autopsy report (Ext. A –1). The same are being reproduced below: “ i) Abraded contusion on right side of forehead and adjoining right Kupal region and upper lid of right eye in area of 9.5 cm X 5 cm, bluish black in colour. ii) Abraded contusion on left cheek and adjoining left temporal region 7 cm X 3.5 cm, bluish black in colour. iii) Abraded contusion on anterior part of nasal bridge 2.5 cm X 2 cm, bluish black in colour. iv) Abraded contusion on left side of chin and adjoining left side of face 7 cm X 3 cm, bluish black in colour. v) Lacerated wound on anterior part of lower portion of body on left mandible 4 cm X 0.5 cm X bone deep. vi) Abraded contusion on front of neck, below Adam’s apple 5 cm X 1.5 cm, bluish black in colour. 8 vii) Abraded contusion on lower part of front of neck just above right collar bone 4 cm X 1.5 cm, bluish black in colour. viii) Abraded contusion, multiple, on upper part of front of right side chest, 7 cm X 5 cm, bluish black in colour. ix) Leniar abraded contusion on front of lower part of left side of chest, oblique, 7 cm X 2 cm, bluish black in colour. x) Abraded contusion on front of lower part of left side of chest and adjoining part of abdomen, obliquely 3 cm medial and below to injury No. (ix), 14 cm X 1.5 cm in size, bluish black in colour. xi) Multiple abrasions on front of lower part of chest (left side), and left side of abdomen, 20 cm X 11 cm area, reddish brown in colour. xii) Multiple abrasions on lower part of dorsal aspect of left forearm, left wrist joint and dorsal aspect of right palm, 18 cm X 1 cm area, reddish brown colour. xiii) Multiple abrasion on whole dorsomedial aspect of right forearm, reddish brown colour. xiv) Multiple abrasions on anterior aspect of right knee joint of right leg in area of 31 cm X 5 cm, reddish brown in colour. xv) Multiple abrasions on anterior aspect of left knee joint and left leg in an area of 33 cm X 5 cm, reddish brown in colour. xvi) Contusion of left shoulder joint in area of 7 cm X 6 cm, bluish black in colour. 9 xvii) Multiple abraded contusion on right side of lower back area of 27 cm X 17 cm, bluish black in colour. xviii) Multiple abraded contusion on left side of lower back area 19 cm X 10 cm, bluish black in colour. xix) Contusion on left scrotal area 7 cm X 6 cm, reddish blue in colour. On dissection there is no internal injury. xx) Contusion on left side of occipital region of scalp in an area of 7 cm X 9 cm, bluish black in colour. On dissection of scalp, there is haematoma beneath the contusion in an area of 10 cm X 8 cm. On removing the skull, membranes are congested. On removing the membranes, there is sub arachnoid hemorrhage on outer surface of both cerebral hemispheres and brain congested.” The Medical Officer on internal examination further found that stomach contained 200 gm. of semi digested food material. Small intestine filled with semi digested food and distended with gas. Large intestine was filled with faecal matter and distended with gas. Cause of death, according to the Medical Officer (P.W. 1 Dr. B.C. Pathak) was coma due to ante mortem head injury [No. (xx)] caused by blow of hard blunt object. The abovementioned medical report suggests homicidal death of Devendra Dutt. It is mentioned in the autopsy report that the dead body was 2-3 days old. P.W. 1 Dr. B.C. Pathak in his cross-examination states that the 10 deceased might have died on 31.01.1994, at about 09:00 P.M. He also stated that the ante mortem injuries could have been caused by a hard blunt object, including bicycle chain or rod. A specific question was asked on behalf of the defence to P.W. 1 Dr. B.C. Pathak, in reply to which he stated that the injuries suffered by the deceased could not have been caused due to fall in a hilly terrain. The abovementioned medical report proves homicidal death of the deceased. Now, this court has to see, whether, accused / appellants namely Vijai Singh, Vinod Singh and Dharam Singh, with common intention, committed murder of Devendra Dutt (deceased), and caused disappearance of his body to conceal the crime. 6) P.W. 2 Kundan Lal (complainant) has stated that Devendra Dutt (deceased) was his nephew, who was a teacher. He further stated that on 1st of February 1994, he was told by Sohan Lal (P.W. 4) that on the previous day (31.01.1994) Devendra Dutt had gone to have his meals in hotel of Gyan Singh. On the urge to urinate he came out and started urinating in front of the hotel. On this, accused / appellant Vinod Singh objected to and they had a quarrel. According to this witness, on this deceased without having meals came to the room of Sohan Lal, where the accused / appellants Vijai Singh and Vinod Singh started beating him. It is also stated by him that he was told that Vinod was 11 armed with a cycle chain, and when Devendra Dutt came out of room of Sohan Lal, he was chased by accused / appellants Vijai Singh, Vinod Singh and Dharam Singh. The witness has proved the report (Ext. A –2) lodged by him with the Patwari of the area. In the cross-examination he further states that the dead body of Devendra Dutt could be found on 2nd of February, at about 03:00 P.M. He further told in the cross-examination that when on 31.01.1994, Devendra Dutt did not return back from the school, he went to the school on 01.02.1994, where he was told by the children that deceased had already left the school on 31.01.1994. He denied the suggestion made on behalf of defence that deceased had taken liquor with Sohan Lal, Khushi Ram and others, and had suffered injuries due to fall on a sloping ground. 7) P.W. 3 Khushi Ram is the eyewitness of the incident dated 31.01.1994 in the house of Sohan Lal, where according to this witness deceased Devendra Dutt was beaten by accused / appellants Vijai Singh, Vinod Singh and Dharam Singh. The witness has further told that when Devendra Dutt came out of Sohan Lal’s room, he was chased by the three accused / appellants, where after the deceased never came back. P.W. 3 Khushi Ram has further told that he also witnessed at about 08:30 P.M. on 31.01.1994, accused / appellants quarreling with deceased in front of hotel of 12 Gyan Singh, before the accused / appellants came to the house of Sohan Lal to beat him. P.W. 3 Khushi Ram is a shopkeeper of Jakhnidhar, the place where the incident had taken place and his presence at the time of quarrel between the accused / appellants and Devendra Dutt cannot be doubted. 8) P.W. 4 Sohan Lal is the star eyewitness who states that on 31.01.1994, at about 09:00 P.M., Devendra Dutt when came out of the hotel of Gyan Singh and started urinating, accused / appellant Vinod Singh started quarreling with him. The witness further states that he intervened and separated Devendra Dutt from Vinod Singh, and took him to his room. He further told that after sometime accused / appellants Vinod Singh, Vijai Singh and Dharam Singh kicked at his door and entered forcibly in the room and started beating Devendra Dutt. The witness further discloses presence of Khushi Ram and Dharam Dutt in his room when the ‘MAARPEET’ took place. The witness further told that when Devendra Dutt freed himself from clutches of accused / appellants and came out of the room, but he was chased by accused / appellants. The witness further told that he and the other witnesses were threatened by the accused / appellants of dire consequences, if they dared to come out of the room. P.W. 4 Sohan Lal has further told that on the next day, when Kundan Lal P.W. 2 came in search of Devendra 13 Dutt, he disclosed about the incident he had witnessed. Lastly, the witness told that on 02.02.1994, dead body of the deceased was found. In the cross-examination the witness states that Devendra Dutt, though not directly related to him, but since belongs to his village, as such he was his brother. P.W. 4 Sohan Lal further told in the cross examination that he had a tea & sweets shop in Jakhnidhar. This makes his presence natural in Jakhnidhar, on the day of incident. P.W. 4 Sohan Lal further told in the cross-examination that Devendra Dutt suffered injuries on his head and eyes when he was given beating by the accused / appellants, in his room. As to the place where the dead body of deceased was found on 02.02.1994, the witness states in his cross- examination that it was a sloping area. 9) P.W. 5 Dharam Dutt has corroborated the prosecution story as stated by P.W. 3 Khushi Ram and P.W. 4 Sohan Lal. This witness belongs to village Kolgaon, but he has also a tea & sweets shop in Jakhnidhar, as stated by him. Statement of this witness is also natural and trustworthy. Nothing has come out from his cross-examination which shakes his testimony. The evidence of the three eyewitnesses, namely P.W. 3 Khushi Ram, P.W. 4 Sohan Lal and P.W. 5 Dharam Dutt, read with the medical evidence on record, in our opinion, proves the charge that the accused / appellants Vijai Singh, Vinod Singh and Dharam Singh, with common intention, committed murder of Devendra 14 Dutt, and thereafter threw his dead body in a corner of sloping ground. Statement of P.W. 6 Patwari Jaidev Prasad Dobhal (Investigating Officer) read with the site plan makes it clear that the dead body was not visible directly from the road from which public used to pass through, and it is clear that the accused / appellants after committing murder of the deceased threw the dead body at such a place where no one can easily see it. Report of the forensic laboratory on the blood stained soil and simple soil taken and sent for chemical analysis, which is on the record, shows that bloodstains were found in the soil. 10) On behalf of the appellants it is argued that the first information report is ante timed, and the accused / appellants have been framed in the present case. The first information report (Ext. A –2) has been shown to have been lodged on 01.02.1994, at 08:00 P.M. P.W. 2 Kundan Lal (complainant) has stated in his cross- examination that Devendra Dutt, his nephew, was teacher in a school situated in Village Ratoli. He has further told that everyday Devendra Dutt used to go to school, and come back to village Nawakot. On 31.01.1994, he did not return. The witness has further stated in his cross-examination that when on 31.01.1994, Devendra Dutt did not come back to home, next day (on 01.02.1994), he (P.W. 2) went to the school and enquired from the children, who told him that the deceased (Devendra Dutt) had already left the 15 school on 31.01.1994. The witness has further disclosed that when he made enquiries at Jakhnidhar relating to whereabouts of the deceased, Sohan Lal disclosed about the incident which had taken place in his room between the accused / appellants and the deceased. It is only thereafter he could lodge the first information report on 01.02.1994, at 08:00 P.M. In the above circumstances, in the opinion of this court, the report does not appear to be ante timed. 11) The next submission advanced on behalf of appellants is that all the three eyewitnesses, namely P.W. 3 Khushi Ram, P.W. 4 Sohan Lal and P.W. 5 Dharam Dutt are got up witnesses, and trial court has erred in law in believing their testimony. We have gone through the statements of the three witnesses. All the three are shopkeepers of Jakhnidhar, where the incident has taken place, as such, it cannot be said that they are procured or got up witnesses. We are of the view that the presence of the three witnesses in Jakhnidhar is natural and there is nothing in their statements which creates doubt in their testimony. 12) Thirdly, it is argued on behalf of the appellants that all the injuries mentioned in the autopsy report could have been caused by fall in a hilly terrain, and the accused / appellants have been implicated only on suspicion by the complainant. In this connection, we think it just and proper to mention here, that P.W. 1 Dr. 16 B.C. Pathak in his cross-examination has stated that all the injuries suffered by the deceased could not have been caused by fall. We have already mentioned the number and nature of injuries recorded in the autopsy report (Ext. A –1). In the case of fall some injuries which are on knee etc. could have been caused by fall, but the deceased appears to have been mercilessly beaten before he succumbed to the injuries, as not only he has suffered number of injuries on his face, cheeks, chest, head, arms, but also in the scrotal area. In the circumstances, we find no inconsistency on reading medical evidence with the testimony adduced by the witnesses of fact. 13) For the reasons as discussed above, we do not find any force in these appeals, which are liable to be dismissed. Both the appeals No. 1681 of 2001 (old No. 93 of 1999) and No. 1679 of 2001 (old No. 191 of 1999), are hereby dismissed. Lower court record be sent back so that the trial court may make the accused / appellants serve out the sentence awarded against them, if not on bail. (Both Bail Applications No. 785 of 2010 as well as No. 786 of 2010 stand dismissed). (Nirmal Yadav, J.) (Prafulla C. Pant, J.) Dt. August 19, 2010. H. Negi 17