IN THE HIGH COURT OF UTTARANCHAL, NAINITAL. No. 10- COURT’S ORDER WHETHER THE CASE IS OR IS NOT APPROVED FOR REPORTING. [ Chapter VIII, Rule 32(2) (b)] Criminal Appeal No. 1269/2001 (Old No. 35/1987) Pyare Lal … Appellant. Vs. State .. Respondent. Decided on 29-08-2005 A.F.R. ( Approved for Reporting) Not Approved for Reporting ( Irshad Hussain, J.) ( J.C.S. Rawat, J.) Dated: 29-08-2005. In the High Court of Uttaranchal, at Nainital. Criminal Appeal No. 1269/2001 (Old No. 35/1987) Pyare Lal S/o Budhi Lal R/o Village Naitala, P.S. Maneri, District Uttarkashi .. Appellant. Vs. State .. Respondent. Sri Sudhir Singh, assisted by Ms. Prabha Nauliyal, learned counsel for the appellant. Sri A. Rab, learned Addl. G.A., assisted by Mr. Suhail A. Siddiqui, learned Brief Holder for the State. Coram: Hon’ble Irshad Hussain, J. Hon’ble J.C.S. Rawat, J. Dated: 29-08-2005 (Per: Hon’ble J.C.S. Rawat, J.) Appellant Pyare Lal has preferred this criminal appeal against the judgment dated 17-10-1986, passed by Sri Maharaj Din, the then Sessions Judge, Uttarkashi, in Sessions Trial No. 3 of 1986, whereby he was convicted and sentenced to undergo imprisonment for life under Section 302 I.P.C. 2- Briefly stated the prosecution case is that deceased Smt. Sajana Devi was the wife of appellant Pyare Lal. At the time of the incident the appellant was living at the house of his father-in-law for the last one months in village Manpur. On 3-2-1986 at about 9 A.M. the appellant and his wife Smt. Sajana deceased went to jungle for bringing the grass. Other women of the village also went to jungle to collect the grass. When the appellant and his wife Smt. Sajana did not return to the house in the evening, Gainu ( P.W.1), the father of the deceased Smt. Sajana, along with other villagers went to the jungle in their search but they could not be traced. In the night, Kalmu ( P.W.6), who was working as mason in village Bonga, on his return to home, informed Gainu that his son-in-law ( the appellant) met him in the way and told that he was going to meet his sister in village Bonga. Prem Lal resident of Village Bonga also told the informant that the appellant met him in the way near village Koti and on his query the appellant told that he was coming from village Manpur. Next day, that is, 4-2-1986 at 8.05 A.M. Gainu lodged the written report, Ext. Ka.1 at the Police Station, Uttarkashi. On the basis of the written report, check F.I.R. Ext. Ka.9 was prepared the same day by the S.O. S.O. Sri Devendra Singh Negi, started the investigation. He went to jungle where the deceased and the appellant had gone to collect the grass. On 5.2.1986 the Investigating Officer recovered the dead body of Smt. Sajana at Chhajgad on Uttarkashi- Lambgaon motor road. He held the inquest on the dead body of the deceased and prepared the inquest report, Ext. Ka.10. The Investigating Officer prepared photo of dead body ( Ext. Ka.11) and challan ( Ext. Ka.12), sealed the dead body and sent it for post mortem along with other relevant papers. He also took the sample of bloodstained and plain earth from the place of incident and prepared the memo Ext. Ka.2. He also recovered a pair of chappals, Dranti, Suleti, from near the dead body and prepared memo Ext. Ka.3. The I.O. also took into possession a scarf (Muffler) from near the dead body and sealed it at the spot and prepared recovery memo Ext. Ka.4. He registered a case crime No. 31/1986 under Section 302 I.P.C. against the accused vide G.D. No. 39 dated 5-2-1986 at 8.05 P.M. On 6.2.1986 the Investigating Officer prepared the site-plans, Ext. Ka.13 and Ext. Ka.14. 3- The autopsy on the dead body of Smt. Sajana Devi was performed by Dr. S.S. Aswal and Dr. A.W. Khan on 6-2-1986 about 10-20 A.M. and as many as 12 ante-mortem injuries were found on the person of the deceased. In the opinion of the Medical Officers the cause of death was asphyxia due to throttling. The doctors prepared post mortem examination report , Ext. Ka.5. 4- On 31-3-1986 at about 10 P.M. the Investigating Officer arrested the accused at Nakuri from the road near Athali Jhula Pul, who was brought there by the village people and handed over to the I.O. and arrest memo, Ext. Ka.6 was also prepared. After completion of investigation, charge sheet, Ext. Ka.15 was submitted by the I.O. against the appellant on 16-4-1986. 5- The charge under Section 302 I.P.C. was framed by the learned Sessions Judge against the appellant. The appellant pleaded not guilty and claimed to be tried. 6- In order to prove its case, the prosecution examined seven witnesses. P.W.1, Gainu, the father-in-law of the appellant is the informant of the case. He has lodged the written report, Ext. Ka.1 at the Police Station. He has narrated the entire prosecution story as mentioned in para No.2 of the judgment. He is also the witness of the recovery of the dad body from Chanagaad. He is also the witness of the inquest report, Ext. Ka.10 and taking of sample of bloodstained and plain earth vide memo ( Ext. Ka.2). He also proved the material exhibits Daranti, rope and Suleti. According to him the muffler of Pyare Lal appellant was also recovered by the I.O. in his presence and he proved the memo, Ext.Ka.4. P.W.2, Smt. Surama is the mother of the deceased Smt. Sajana. She stated in her evidence that in the morning on the day of incident a quarrel took place between the appellant and Smt. Sajana and the appellant pushed down Smt. Sajana from the third floor of the house. Apart this, she has corroborated the prosecution version. 7- P.W.3, Jata Shankar has stated in his evidence that on 3-2- 1986 Smt. Sajana and Pyare Lal had gone to jungle to collect grass but they did not return home. On 4-2-1986 the police had come to the jungle and made search but the dead body could not be searched. On 5-2-1986 again police came to jungle and they recovered the dead body of Smt. Sajana at Chanagaad near Hawaghar. According to him police took in to possession the dead body and performed inquest. He is also the witness of inquest. 8- P.W.4, Baisakhu has stated that at about 1 P.M. in the day he saw the accused Pyare Lal coming from jungle. On his query about Smt. Sajana the accused told him stated she is cutting grass in the jungle and he is going home as he is not feeling well and the appellant went towards village Manpur. 9- P.W.5, Smt. Kori Devi supported the prosecution case and stated that a about 11 A.M. she and Purna Devi were coming to their home with fuel wood. They saw Pyare Lal and Sajana Devi bringing grass and going towards Hawaghar. 10- P.W.6, Kalmu stated that on 21 Gate Magh he was working at the house of Smt. Faguniya in village Bonga. According to him at about 2- 2 ½ P.M. in the day he saw Pyare Lal coming from village Manpur and on inquiry the appellant told him that he had coming to village Bonga to meet his sister. The witness also stated that during those days the appellant’s sister was not residing in village Bonga. When he reached to his village Manpur in the evening he stated this fact to Gainu. P.W.7, Sri Devendra Singh Negi, has investigated the case. Steps taken by him towards investigation have been narrated above. 11- The appellant had pleaded not guilty of the charge levelled against him. He pleaded that he along with Sajana came to Uttarkashi in the month of January 1986 to see the fair and from there Sajana went to her paternal home along with her sister and he did not go there. He has further stated that he had been falsely implicated. 12- The appellant did not adduce any evidence in his defence. The learned Sessions Judge on his appreciation of the evidence in the case held the appellant guilty and convicted and sentenced him under Section 302 I.P.C. as aforesaid. 13- We have heard the learned counsel for the appellant and the learned A.G.A. and perused the record. 14- At the outset it need to be mentioned that it is not disputed that the deceased met a homicidal death on account of injuries sustained by her on the date of the occurrence. The genuineness of the post mortem examination report o the deceased was admitted by the accused’s counsel and endorsement to this effect was also made on the post mortem report itself. In the opinion of the Medical Officer the cause of death was asphyxia due to throttling and the death had occurred about three days earlier. 15- Now we have to consider whether the appellant was responsible for the injuries sustained by the deceased Smt. Sajana Devi. There was no eye witness of the occurrence and the prosecution case rests on the circumstantial evidence. The law which is clearly settled about the circumstantial evidence is that it would be such as to point out only to the guilt of the accused and the evidence should exclude all other hypothesis except the guilt of the accused. It is often said that though witnesses may lie, circumstances will not, but at the same time it must cautiously be scrutinized to see the incriminating circumstances as such as to lead only to hypothesis of guilt and reasonably exclude every possibility of innocence of the accused. In order to sustain conviction on circumstantial evidence, each of the incriminating piece of circumstantial evidence should be proved by cogent and reliable evidence and the court should be satisfied that the pieces of evidence taken together forge such a chain where from no inference other than the guilt can be drawn. The Hon’ble Apex Court in Sharad Birdhichand Sarda versus State of Maharashtra A.I.R. 1984, S.C. page 1622, while dealing with the circumstantial evidence has held that the onus was on the prosecution to prove that the chain is complete. The conditions precedent before conviction could be based on circumstantial evidence, were enumerated as under:- (1) the circumstance from which the conclusion of guilty is to be drawn should be fully established. The circumstances concerned ‘must or should’ and not ‘may’ be established. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused , that is to say that, they should not be explainable of any other hypothesis except that the accused is guilty. (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. The above decision was also relied and affirmed in the latest decision of the Apex Court in the matter of State of U.P. versus Satish 2005 S.C.C. (Cri) 642. 16- Keeping in view the above principle of law, we shall consider the circumstances projected by the prosecution against the appellant. The first circumstance relied upon by the prosecution is that the appellant and the deceased Smt. Sajana were seen lastly together at about 11 A.M. in the company of the appellant. P.W.4, Baisakhu has stated that about 1 P.M. on the day of occurrence he saw the appellant Pyare Lal coming back from jungle. P.W.2, Smt. Surama Devi, mother of the deceased, has stated in her evidence that Sajana and Pyare Lal came to her house on 5th Gate of Magh and since then they were living there and in the morning of the day when the incident took place, a quarrel had taken place between Sajana and Pyare Lal in which Pyare Lal pushed down Smt. Sajana from third storey of the building. Thereafter the appellant settled there differences with Smt. Sajana and they both went to jungle to bring the grass. They were accompanied by her another daughter Ailma and other women of the village. Pyare Lal and Smt. Sajana did not return back in the evening. When her husband Gainu (P.W.1) returned from Uttarkashi at about 4 P.M., she told him that the deceased and the appellant had gone to bring grass but they did not returned back till late in the evening. Gainu along with other villagers went to jungle in search of them but they could not be found on that day. The dead body of the deceased Sajana was recovered from the jungle on the third day of the incident. It was further deposed by P.W.2, Smt. Surama that Ailma, the sister of the deceased, the appellant and the deceased along with other women of the village had boarded the bus from the road to the jungle but on the way appellant Pyare Lal dragged down the deceased and went to jungle to collect the grass. P.W.5, Kori Devi has stated in her evidence that on the date of the incident at about 11 A.M. she along with Purna Devi were bringing wood from the jungle and she saw that Sajana and Pyare Lal were carrying grass and they were going together towards Hawagarh. P.W.6, Kalmu has stated in his evidence that the appellant met him in village Bonga at about 2.30. who was coming from the side of the village Manpur. At that time he was all alone. P.W.2 Surma Devi, P.W.5 Smt. Kori Devi and other witnesses have consistently stated that they lastly saw the accused going with Smt. Sajana to jungle. It is also the consistent evidence that they were seen together near Hawagarh by P.W.5 Smt. Kori Devi. It is also consistent evidence that immediately after 11 A.M. when the appellant was lastly seen with the deceased Sajana Devi, he was seen all alone by P.W.4 Baisakhu at 1 P.M. coming from jungle. When he enquired about Sajana he stated that she is cutting the grass in the jungle and he was not feeling well so he was going to his house. From the cross- examination of P.W.2 Smt. Surma Devi, P.W.4, Baisakhu and P.W.5 Smt. Kori Devi, the defence could not elicit anything which may adversely affect their testimony. Their evidence is cogent and credible. 17- The learned counsel for the appellant contended that the evidence of P.W.2, Smt. Surma Devi and P.W.5, Kori Devi is not credible as they are related to the complainant. It is true that P.W.2 is the mother of the deceased and it is also admitted to P.W.5 Smt. Kori Devi that she is the wife of the brother of P.W.1, Gainu, the father of the deceased, but their evidence can not be discarded on the ground that they are related to the deceased. There is no rule of law or prudence which requires that the evidence to close relations must be discarded for the simple reason that they are related to each other. The prosecution witnesses must be interested to give their evidence as to convict the appellant for his wrong doing and they would not have liked to adopt such a course by which some innocent person ( particularly who happens to be a son-in-law) would be convicted in place of a person who is the real culprit of the murder of the deceased. In such circumstances it would not be just and proper to discard their evidence on account of their relationship with the deceased. We have carefully examined the testimony of the witnesses and find that their evidence is trustworthy and reliable. The witnesses have been consistent in their assertion that they had seen lastly the appellant and the deceased together in the jungle. When they did not return home, search was made and report was lodged on the next day. 18- Learned counsel for the appellant contended that P.W.2, Smt. Surma Devi has stated in her evidence that her another daughter Ailma had also accompanied the deceased while the appellant and the deceased were going to jungle to bring the grass and Ailma had also told her mother that Pyare Lal and Sajana got down from the bus earlier and she alongwith other women went ahead. Learned counsel pointed out that Ailma was a natural witness of the incident but she was not examined by the prosecution and the appellant is entitled to acquittal. It is in the evidence of P.W.2 Surma Devi that on the date of the incident after settling the dispute which occurred in the morning on the date of the incident in between the appellant and Smt. Sajana they both went to jungle to collect and bring the grass. They were also accompanied by Ailma, another daughter of Smt. Surma Devi and other women of the village and when the appellant and Smt. Sajana deceased did not return in the evening Ailma told to her mother that they all along with other villagers boarded the bus and the appellant dragged down Smt. Sajana and went to the jungle. It is also in the evidence of P.W.2 Smt. Surma Devi that the appellant and the deceased went together from her house on the day of the incident along with other person. The prosecution has already adduced sufficient evidence to establish that the accused and the deceased were last seen going to jungle by the witnesses and there was hardly any necessity to examine Ailma to repeat the same fact. It is not always necessary to multiply the evidence of incident on the same point. The prosecution evidence has sufficiently proved the factum of last seen. It has to be seen what is the quality of the evidence and not its quantity. The evidence available on record is otherwise satisfactory in nature and can be said to be trustworthy, the increase in the number can not be said as the requirement of the case. The witnesses whose evidence is otherwise trustworthy can not be thrown out out-rightly on the ground that the other witnesses of the same facts have not been produced. The non- examination of a witness only to multiply the evidence can not be pressed in to service like a retrial formula for discarding the prosecution evidence with the stroke of a pen. Effort should be made in appreciating the worth of the evidence as has been adduced by the prosecution. 19- It is pertinent t mention here that the accused has stated in his statement under Section 313 Cr.P.C. that in the month of January ( not on the date of incident) he along with Sajana went to Uttarkashi to see a fair and he further stated that he did not come to village Manpur along with Sajana. Smt. Sajana went to her father’s village Manpur along with her sister. The accused has tried to set up a defence that he was not residing with the parents of Sajana on the date of the incident. He tried to point out that on 18-1-1986, prior to 15 days of the incident, the deceased and appellant went to see the fair at Uttarkashi and thereafter he did not accompany Sajana to go her father’s house. On the other hand the learned counsel for the accused before the trial court, has suggested the witness P.W.1, Gainu that he ( Gainu) wanted the accused to live at his house and financially support him. It was also suggested to this witness that accused Payre Lal lived in his house despite the opposition from the side of his father. Suggestion was also put to P.W.2 Smt. Surama Devi that on the date of the incident appellant and the deceased Smt. Sajana did not go to collect and bring the grass from the jungle because the appellant was going out in search of job. The evidence of the prosecution amply prove that the accused- appellant Pyare Lal was living in the house of Gainu at the time of the murder of Smt. Sajana Devi. The defence taken by the appellant and the suggestions put to the prosecution witnesses amply fortify the fact that the accused was living in the house of Gainu at the time of the murder of Smt. Sajana. 20- The appellant Pyare Lal and Smt. Sajana Devi were last seen going to jungle together by the eye witnesses whose evidence has been discussed above. Thereafter the dead body of the deceased was recovered from the jungle near Hawaghar on the third day of the incident. The post mortem on the dead body of the deceased Smt. Sajana Devi was conducted and the medical officer found the following ante-mortem injuries on her person:- 1- Multiple abraded contusion on right side of neck in an area of 4.0 cm x 3.0 cm covered by reddish brown scab. 2- Abraded contusion on left lateral side on neck measuring 2.5cm 2.0 cm in size. 3- Two abraded contusions on left lateral side on neck below injury no.2 in an area of 3.0 cm x 3.0 cm covered with reddish brown scab. 4- Lacerated wound on scalp measuring 5.0cm 1.0cm in size on back of head. 5- Lacerated wound on left upper eyelid measuring 2.0 x 0.5cm in size. 6- Lacerated wound on lower lip on right side measuring 3.5 x 0.5cm in size. 7- Lacerated wound on redial aspect of right foot measuring 2.5x 2.0 cm. in the vicinity of all lacerated wounds clotted blood was present. 8- Abrasion on anterior aspect of right ankle measuring 2.0 x 1.o cm in size covered with reddish brown crust. 9- Abrasion on right thigh 3.5 x 4.0 cm in size. 10-Abrasion on fore head on left side measuring 4.0 x 2.0 cm in size. 11-Abrasion on right knee measuring 1.0 x 0.5 cm in size. 12-Contusion on left labia region measuring 3.0 x 2.5cm in size. 21- As has already discussed above, learned counsel for the accused in the trial court has admitted the genuineness of the post mortem report. The doctor has given his opinion that the cause of death was asphyxia due to throttling. The evidence of the prosecution further stand corroborated by the medical evidence. The medical officer has detected 12 ante-mortem injuries on the person of the deceased Smt. Sajana Devi. This fact goes to show that while she was being throttled she might have put resistance and during this course injuries were received by her on the forehead and scalp which further shows that when the victim was got down for throttling she was mercilessly beaten and it clearly proves that the accused intentionally and knowingly committed the murder of the deceased. This fact also shows that the deceased was seen alive lastly in the company of the appellant. Thereafter she was found dead and ante-mortem injuries were found on her body. Though the appellant was seen all alone. This fact leads us to assume that the appellant alone was the author of the crime and none else. 22- The next circumstance relied upon by the prosecution is that a scarf ( muffler) of the appellant along with sleepers, Dranti and Suleti of the deceased were recovered at the place of the occurrence. the Investigating Officer recovered the sleepers, Dranti, rope Suleti and scarf from the spot. P.W.1, Gainu has categorically stated that the scarf so recovered belonged to appellant Pyare Lal and its recovery memo, Ext. Ka.4 was also prepared in the presence of the witness. The recovery of the scarf of the appellant from the place of the occurrence amply proves that the death was caused by the appellant alone. The appellant was specifically put a question that scarf (Muffler) of the accused was recovered at the spot, the accused has merely denied this fact. He has not stated that it does not belong to him. On