IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL COURT’S ORDER WHETHER THE CASE IS OR NOT APPROVED FOR REPORTING [Chapter VIII, Rule 32(2) (b)] Description of Case Criminal Appeal No. 347 of 2004 Decided on: August 21, 2006 WITH Criminal Jail Appeal No. 2064/2001 A.F.R. (Approved for Reporting) Not approved for reporting Date. 21.08.2006 (Initials 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. 1 Reserved Judgment IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Criminal Appeal No. 347 of 2004 (Old No. 2231 of 1989) Kalu Ram S/o Himmat Ram R/o Chami, P.S. Askot, Dirstrict Pithoragarh. ………… Appellant Versus The State ………… Respondent ALONG WITH Criminal Jail Appeal No. 2064 of 2001 (Old No. 1091 of 1991) Kalu Ram S/o Himmat Ram R/o Chami, P.S. Askot, Dirstrict Pithoragarh. ………… Appellant Versus The State ………… Respondent Mrs. Pushpa Joshi, learned counsel for the appellant. Mr. D.K. Sharma, Government Advocate assisted by Mr. H.C. Pande, Addl. Government Advocate for the respondent-State. Coram: Hon’ble B.C. Kandpal, J. Hon’ble Prafulla C. Pant, J. Dt: August 21, 2006. [Per Hon’ble Prafulla C. Pant, J.] These appeals, preferred under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred as 2 Cr.P.C.), are directed against the judgment and order dated 20.01.1989, passed in Sessions Trial No. 19 of 1988 by the learned Sessions Judge, Pighoragarh whereby, appellant Kalu Ram has been convicted under Section 302 and 201 of the Indian penal Code, 1860 (hereinafter referred as I.P.C.) and sentenced to imprisonment for life under Section 302 of I.P.C. and directed to undergo rigorous imprisonment of four years under Section 201 of I.P.C. 2) We heard leaned counsel for the appellant and the learned Government Advocate for the State and perused the entire record. 3) Prosecution story, in brief, is that appellant Kalu Ram and his father Himmat Ram used to distill illicit liquor in their house in village Chami, Police Station Askot, District Pithoragarh. Shankar Singh (deceased) resident of the same village used to oppose this. On 28.07.1987, at about 5:00 P.M., Shankar Singh proceeded from his home to purchase tea leaves and sugar candy from nearby village Chhrandev. An hour thereafter, P.W. 1 Km. Bhagirathi and P.W. 3 Motima Devi (both resident of village Chami) saw Shankar Singh sitting with appellant Kalu Ram and his father Himmat Ram, outside their house. Thereafter, Shankar Singh was not seen alive. On 31.07.1987, i.e. about three days after the above incident, when P.W. 2 Bhupendra Singh along with his wife had gone for collecting grass in the nearby forest of Thagulikhola they saw dead body of Shankar Singh lying there. They returned to the village and gave information about the same to P.W. 11 Gopal Singh, Sabhapti of the village, who 3 along with Bhupendra Singh gave information (Ext. A -14) about dead body being found, to the police, on the next day. The place where the dead body was found, was near the house of appellant Kalu Ram and his family. The prosecution case is that on 28.07.1987, Kalu Ram murdered Shankar Singh and, thereafter, he along with other accused persons i.e. his father Himmat Ram, his mother Haruli Devi and his brother’s wife Dhana Devi took the dead body to the nearby thagulikhola forest and threw it there to conceal and make disappear the evidence of the crime. P.W. 4 Lal Singh, father of the deceased, got scribed a detailed First Information Report (Ext. A -1) through P.W. 5 Raghubar Datt on 01.08.1987 and lodged the same with Police Station Askot on the next day i.e. 02.08.1987, which was registered as crime No. 17 for 1987, under Section 302 of I.P.C. A check report (Ext. A -4) was prepared by the Police and an entry was made in the general diary, copy of which is Ext. A-5, on the record. Before that, on receiving report from Gopal Singh, the Police had already taken dead body of Shankar Singh into possession on 01.08.1987 and inquest report (Ext. A -2) was got prepared. The Police made entry in the general diary, a copy of extract of which is Ext. A -3 on the record, regarding said fact. The Police also got prepared sketch of the dead body (Ext. A -9), police form No.13 (Ext. A -10), letter to the Chief Medical Officer (Ext. A -11) requesting him for getting done autopsy on the dead body. The postmortem examination of the dead body of Shankar Singh was conducted by P.W. 9 Dr. G.K. Sharma on 02.08.1987, who prepared the postmortem examination report (Ext. A -6). In the opinion 4 of the Medical Officer cause of death of Shankar Singh was shock and haemorrhage due to ante mortem injuries found on his dead body of the deceased. Initially, the crime was investigated by P.W. 10 Sub Inspector Sarfuddin, who recorded the statement of the witnesses and also prepared site plan (Ext. A -7). During investigation P.W. 7 Ratan Ram disclosed to the police that on the next day of the incident i.e. 29.07.1987, appellant Kalu Ram was seen in the Bus bound for Bareilly and appellant Kalu Ram was brother of the appellant Kalu Ram also told the police that looking perplexed at that time. P.W. 12 Bahadur Singh. P.W. 13 Jagdish Pal, the subsequent Investigating Officer, after completion of the investigation submitted the charge sheet (Ext. A -16) to the Chief Judicial Magistrate, Pithoragarh against accused / appellant Kalu Ram and other co-accused namely Himmat Ram, Smt. Haruli Devi and Smt. Dhana Devi, for their trail for alleged commission of he offence punishable under Section 302 and 201 of I.P.C. by them. 4) The Magistrate concerned, on receipt of the charge sheet, registered the same and committed the case to the court of Sessions for trail. At the time of submission of charge sheet, appellant Kalu Ram was still absconding but later he was also arrested and his case was also committed to the court of sessions, for trial. Learned Sessions Judge, after hearing the prosecution and the defence, framed charge of offences punishable under Section 302 and 201 of the I.P.C. against all the four accused persons, who pleaded not guilty and claimed to be tried. On this, the prosecution got examined P.W. 1 Km. Bhagirathi; P.W.2 5 Bhupendra Singh; P.W. 3 Motima Devi; P.W. 4 Lal Singh; P.W. 5 Raghubar Datt; P.W. 6 Navin Chandra; P.W. 7 Ratan Ram; P.W. 8 Head constable Kishan Singh; P.W. 9 Dr. G.K. Sharma, P.W. 10 Sub inspector Sarfuddin; P.W. 11 Gopal Singh; P.W. 12 Bahadur Ram and P.W. 13 Sub Inspector Jagdish Pal. The entire oral and documentary evidence was put to the accused person, including accused /appellant Kalu Ram, under Section 313 of Cr.P.C., in reply to which the accused persons alleged that they have been falsely implicated in the crime due to enmity. But, no evidence in defence was given on behalf of the accused person. After going through the evidence of record, the trail court found charge of the offences punishable under Section 302 of I.P.C. and against accused Himmat Ram, Haruli Devi and Dhana Devi not proved and they were acquitted of the charge but the charge of said two offences was found proved as against accused / appellant Kalu Ram. After hearing on sentence, the trial court sentenced convict Kalu Ram to imprisonment for life under Section 302 of I.P.C. and further directed him to undergo rigorous imprisonment of four years under Section 201 of I.P.C. Aggrieved by the judgment and order of the trial court, convict / appellant Kalu Ram filed the appeal before the Allahabad High in the year 1989. (A separate appeal was also got sent by the convict/appellant Kalu Ram in the year 1991, from the jail). Both the appeals were admitted by the Allahabad High Court, and, subsequently the appeals have been received by transfer to this Court under Section 35 of the U.P. Re-organization Act, 2000, for their disposal. 6 5) Before further discussions, it is pertinent to mention here the ante mortem injuries found on the dead body of Shankar Singh at the time of autopsy. Statement of P.W. 9 Dr. G.K. Sharma read with postmortem examination report Ext. A -6, discloses following ante mortem injuries on the person of the deceased: Elliptical wound 10 cm above from the umbilicus on midline in abdominal wall, 3 cm transverse X 2 cm longitudinal, blunt regular margins, gaping present. Part of intestine coming out of the wound with black colour. In the opinion of the Medical Officer, the cause of death was shock and haemorrhage due to ante mortem injuries caused on the person of the deceased. 6) P.W. 1 km. Bhagirathi and P.W. 3 Motima Devi are the two witnesses who have last seen Shankar Singh (deceased) in the company of appellant Kalu Ram and his father Himmat Ram. P.W. 1 Km. Bhagirathi has stated that on the day of incident, at about 6:00 P.M., she was coming back to her home alongwith Motima Devi (P.W. 3) after cutting grass. On her way to her home she saw that Shankar Singh was sitting with Kalu Ram (appellant) and Himmat Ram in their courtyard. P.W. 3 Motima Devi has corroborated statement of Km. Bhagirathi (P.W. 1) by stating that on the day of incident, at about 6:00 P.M., when she was coming back, after cutting grass, to her home she saw Shankar Singh sitting in the company of Kalu Ram (appellant) and Himmat Ram. 7 7) P.W. 4 lal Singh, father of the deceased, has stated that on the day of incident, at about 5:00 P.M., Shankar Singh left from his home for purchasing tea leaves and sugar candy from nearby village Chhrandev, but he did not return. This witness stated that he thought that his son might have gone in another house in the same village to stay in that night. But, when Shankar Singh did not return in the morning, this witness states that he and his other family members started searching for him. P.W. 4 Lal Singh further states that his wife was told by Motima Devi (P.W. 3) and Km. Bhagirathi (P.W. 1) that they saw Shankar Singh in the company of Kalu Ram and Himmat Ram, at about 6:00 P.M., on the previous day. On this, this witness states that his wife went to the house of Himmat Ram, who misguided her by saying that Kalu Ram and Shankar Singh had gone to Delhi. P.W. 4 Lal Singh further states that after three days dead body of his son Shankar Singh was noticed by Bhupendra Singh (P.W. 2) in the nearby forest of Thagulikhola, which was identified by Gopal Singh (P.W. 11), who informed the police about the dead body being found. P.W. 4 Lal Singh also states that after the police visited the site, he lodged the First Information Report (Ext. A -1) with the Police. 8) P.W. 2 Bhupendra Singh corroborates this fact that on the fourth day of the incident, when he and his wife had gone to collect grass in the jungle of Thagulikhola they got foul smell of some decomposed dead body. On this they tried to see what is lying around them and they found that a dead body lying there. P.W. 11 Gopal Singh corroborates statement of P.W. 2 Bhupendra Singh by stating that on 8 31.07.1987 when Bhupendra Singh informed in the village that there is dead body lying in the jungle of Thagulikhola, he made attempts to inform the police through telephone, but could not contact. On the next day morning, he went to Askot by bus where at the police station he submitted report Ext. A -14 regarding the dead body being found. This witness (P.W. 11) further states that on his report police came in the village and prepared inquest report (Ext. A -2). 9) P.W. 10, Sub Inspector Sarfuddin corroborates the statement of P.W. 11(Gopal Singh) that on his information police went at the site where the dead body was found and prepared inquest report. P.W. 10 Sub Inspector Sarfuddin further states that after preparing inquest report he also prepared sketch of the dead body, police form No. 13, letter to the Chief Medical Officer, requesting for post mortem examination of the dead body and sample seal (which are Ext. A-9 to A -13, on the record) and, thereafter, got sent the dead body for postmortem examination. This witness states that after the First Information Report (Ext. A -1) was lodged by P.W. 4 Lal Singh on 02.08.1987, investigation of the crime was started by him. P.W. 8 Head Constable Kishan Singh has stated that on 01.08.1987, he made entry in the general diary, on the report made by Gopal Singh regarding the dead body being found (extract of which is Ext. A -3). He further states that on 02.08.1987, on receipt of the First Information Report (Ext. A -4). From Lal Singh, he prepared check report (Ext. A -4) and made entry in the general diary (extract of which is Ext. A -5). 9 10) P.W. 6 Naveen Chandra and P.W. 7 Ratan Ram have adduced evidence about the subsequent conduct of appellant Kalu Ram. P.W. 6 Naveen Chandra states that on 29.07.1987 i.e. next day of the incident, at about 6:00 A.M., when he was sitting in his shop in Kanalichena, Kalu Ram (appellant) came in his shop and he was perspiring. The witness further states that after having tea in his ship, Kalu Ram enquired about the bus, if available for going towards Pithoragarh. P.W. 7 Ratan Ram corroborates the statement of Neveen Chandra (P.W. 6) and stated that on 29.07.1987, at about 6:30 A.M., on a Didihat – Bareilly bus he found Kalu Ram also sitting in the bus behind him. According to this witness Kalu Ram was looking nervous. P.W. 7 Ratan Ram further states when he asked Kalu Ram where is he going but he failed to give any clear reply. This witness further states that when the bus reached Tanakpur, Kalu Ram got down from the bus before it reached the bas station. 11) P.W. 12 Bahadur Ram is the real brother of the appellant Kalu Ram. This witness was in a difficult situation to depose before the court as not only his brother Kalu Ram but his father Himmat Ram, mother Haruli Devi and sister-in-law Dhana Devi were facing the trail. This witness (P.W. 12) is a handicapped person. He has corroborated the prosecution story by stating that Shankar Singh used to object to distillation of illicit liquor by Kalu Ram and Himmat Ram. However, P. W. 12 Bahadur Ram was declared hostile as in his examination-in-chief, he stated that his brother Kalu Ram has not murdered Shankar Singh. But, in cross-examination he clearly states that on 10 the day of incident, a quarrel took place between Shankar Singh on one hand and Kalu Ram and Himmat Ram on the other. P.W. 12 Bahadur Ram in his cross-examination clearly states that Kalu Ram inflicted knife injury on the person of Shankar Singh. This witness has further clearly stated in the cross-examination that Kalu Ram (appellant) and other accused persons took the dead body of Shankar Singh and threw it in the jungle. 12) After going through the entire evidence on record, as discussed above, in the opinion of this Court, the trail court has rightly found that prosecution has been successful in proving charge of offences punishable under Section 302 and 201 for the I.P.C. against Kalu Ram (appellant). 13) Learned counsel for the appellant argued before us that in the inquest report (Ext. A -2), Kalu Ram’s name is nowhere mentioned, and on its basis it is further argued that Kalu Ram has falsely been implicated in the crime. From the perusal of the evidence on record, it is clear that inquest report was prepared on the report of Gopal Singh that the dead body of Shankar Singh is found in the jungle and the inquest report was prepared on 01.08.1987, in which it is clearly mentioned by the inquest witnesses that it appears that Shankar Singh has died because of the injuries received by him and was murdered. It is pertinent to mention her that the First Information Report (Ext. A -1) was lodged by P.W. 4 Lal Singh on 02.08.1987, though the same was written on 01.08.1987. 14) Mrs. Pushpa Joshi, learned counsel for the appellant submitted that the First Information Report is highly 11 belated one and appellant has been implicated falsely due to enmity. From the evidence on record, as discussed above, it is clear that there is sufficient explanation for not lodging the Fires Information Report earlier, as it has come in the evidence of P.W. 4 Lal Singh that when P.W. 1 Km. Bhagirathi and P.W. 3 Motima Devi told his wife on 29.07.1987, that they saw Shankar Singh sitting with appellant Kalu Ram and his father Himmat Ram the previous day, and when Shankar Singh’s mother went to the house of Kalu Ram his family members misled her by saying that Shankar Singh had gone to Delhi with Kalu Ram. This conduct on the part of the family members of appellant provides sufficient explanation for not lodging the First Information Report till the dead body was found. 15) On behalf of the appellant it is contended that it is not natural for Shankar Singh to got to the house of the appellant Kalu Ram with whom he had enmity. We see little force in the contention for the reason that what has come on the record is this that Shankar Singh used to object illicit distillation of liquor by the appellant and his father and this by itself is not sufficient reason not to go to the house of Kalu Ram. The statement of Bahadur Ram, the real brother of the appellant itself makes it very clear that on 28.07.1987, in the evening, a quarrel took place between the decease (Shankar Singh) and the appellant (Kalu Ram) over the issue of illicit distillation of liquor. P.W. 12 Bahadur Ram himself states that Kalu Ram injured Shankar Singh with a knife and caused his death. After this direct eyewitness account of real brother of the appellant, the above contention does not help the appellant. 12 17) For the reasons as discussed above, we do not find any error of law or that of fact or in appreciation of evidence, on the part of the trial court in convicting and sentencing appellant Kalu Ram under Section 302 and 201 of the I.P.C. Accordingly, both the appeals are liable to be dismissed. The appeals are dismissed. The conviction and sentence awarded by the Sessions Judge, Pithoragarh in Session Trial No. 19 of 1988, against the appellant Kalu Ram is maintained. If the appellant is on bail, his bail is cancelled. The trail court shall take him in to custody immediately to make him serve out the remaining party of sentence, awarded against him. (Prafulla C. Pant, J.) (B.C. Kandpal, J.) Dt. August 21, 2006. H.Negi