IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 1433 of 2001 ( Old No. 513 of 1996) Ramesh son of Harpal Singh R/o Sultanpur, P.S. Laksar, District Haridwar ………… Appellant Vs. State ……… Respondent Mr. S.K. Agarwal, Senior Advocate assisted by Mr. S.S. Bhandari, Advocate for appellant. Mr. B.S. Parihar, Brief Holder, for the State. Coram: Hon’ble J.S. Khehar, C.J. Hon’ble B.C. Kandpal, J. B.C. Kandpal, J (Oral): This appeal, under Section 374 Cr.P.C., has been preferred against the judgment and order dated 21-3-1996, passed by Additional Sessions Judge, Roorkee, in Sessions Trial No. 311 of 1992, State versus Ramesh, convicting the accused appellant Ramesh for the offences punishable U/Ss 363, 364, 302, 201 I.P.C. and sentencing him to undergo two years R.I. and a fine of Rs. 500/-, U/S 363 I.P.C., ten years R.I. and a fine of Rs. 1000/-, U/S 364 I.P.C., life imprisonment and a fine of Rs. 1000/- U/Ss 302 I.P.C. and two years R.I. and a fine of Rs. 500/- U/S 201 I.P.C. and in default of payment of fine to undergo one year’s R.I. However, all the sentences were directed to run concurrently. 2- The prosecution case, in brief, is that on 15.07.1992 at about 7.30 P.M., complainant Dharam Pal lodged written report, Ext. Ka.5, at P.S. Gangnagar, with the allegations that his son Bipin Kumar, aged 8 years, is a student of class-3, in 2 Naveen Bal Niketan, Purvi Deen Dayal School. On 14.07.1992 at about 7 A.M. he had gone to school and when he did not return upto 12.30 noon, then the complainant started his search in the locality. Km. Manju aged 11 years and Km. Poonam, of the locality, told him that at about 12 noon, as soon as, Bipin returned from the school and reached near his house, accused Ramesh, carried Bipin with him on the pretext to give something to him for eating. After covering some distance at the water tank both the accused and Bipin drank water together. Roshani Devi W/o Bhagwan Dass also saw the accused carrying Bipin in his bicycle towards the market. The complainant was on the impression that Ramesh will fetch back Bipin in the evening, but when Bipin did not return home till evening, complainant went Sultanpur, the village of accused, in search of his son. He also went to his in-law’s house in village Rawada, where he came to know that Ramesh did not return home for about 5-6 days, then the complainant got prepared the written report by Umesh Pandit and lodged it at the Police Station. On the basis of written report, chick report, Ext. Ka.7 was prepared at P.S. Gangnahar and vide G.D. report No. 37 dated 15-7-1992, a case U/S 363 I.P.C. was registered against the accused Ramesh, carbon copy of which is Ext. Ka.8. 3- The investigation of the case was conducted by S.I. R.K. Singh and Station Officer Roshan Singh. On 15.7.1992, the investigating officer Sri R.K. Singh visited the place of occurrence, and prepared site-plan, Ext. Ka.9. The I.O. recorded the statements of Dharam Pal, Km. Manju, Km. Poonam, and Smt. Roshani Devi on 15.7.1992. 3 On 16.7.1992, the I.O. arrested the accused Ramesh and on his pointing out recovered the dead body of Bipin Kumar on the same day at about 6 P.M. from the sugarcane field of one Akhtar R/o Sultanpur and prepared memo Ext. Ka.2. The I.O. appointed the panches and prepared the inquest report of the dead body, Ext. Ka.1. The I.O. seized the blood-stained and plain earth from the place where the dead body was recovered and prepared memo Ext. Ka.3. The I.O. also took into possession the sugarcane string from the neck of the deceased and prepared memo Ext. Ka.4. Thereafter the I.O. prepared police Form No. 13, sketch map of dead body, letter to C.M.O. Haridwar, another letter to C.M.O. Haridwar, site-plan of the place where the dead body was found Exts. Ka. 12 to Ka. 16, respectively and sent the dead body for post mortem. 4- Dr. R.K. Pandey, Medical Officer, C.M.G. Hospital, Haridwar, conducted the autopsy on the dead body of deceased Bipin on 17-7-1992 at 1P.M. According to the doctor rigormortis from upper and lower extremities have passed away. Skin was pealed off at different places. Foul smell was there. The Medical Officer found following anti-mortem injuries on the person of the deceased:- 1- Contusion 15 cm x 4cm present on front right side and back of neck. Extravasation of blood in subcutaneous tissue under lying injury. 2- Contusion on front of chest upper part, fracture of 3rd and 4th ribs on right side, 20cm x 12 cm in size. 4 According to the Medical Officer the cause of death was asphyxia due to strangulation. The Medical Officer prepared autopsy report, Ext. Ka.6. 5- The investigating officer, after completion of investigation, submitted charge sheet, Ext. Ka. 17 against the accused Ramesh and Satpal. 6- The Ist Addl. Munsif Magistrate, Roorkee, vide his order dated 20-12-1992, committed the case to the court of Sessions. 7- The Additional Sessions Judge, Roorkee, framed charges U/Ss 302/34 and 201 I.P.C. against accused Ramesh and Satpal. He further framed charges U/Ss 363 and 364 I.P.C. against accused Ramesh. Accused persons denied the charges and claimed trial. 8- The prosecution, in support of its case, examined P.W.1, Smt. Roshani, P.W.2, Manju, P.W.3, Poonam, P.W.4, Tamijul Hassan, P.W.5, Dharam Pal, P.W.6, Bool Chand, P.W.7, Dr. R.K. Pandey, P.W.8, R.K. Singh (I.O.), P.W.9, Amolak Chand Jain, and P.W.10,Roshan Singh, (another I.O.). 9- It appears that co-accused Satpal did not turn up before the trial court and his case was separated from accused Ramesh. 10- The accused Ramesh, in his statement, U/S 313 Cr.P.C. denied the prosecution case and alleged that he has been falsely implicated in the 5 case due to enmity. The accused did not adduce any evidence. 11- The learned trial court after hearing learned counsel for the parties and considering all material available on record, found accused Ramesh guilty of offences U/Ss 363, 364, 302, 201 I.P.C. and sentenced him to undergo two years R.I. and a fine of Rs. 500/-, U/S 363 I.P.C., ten years R.I. and a fine of Rs. 1000/-, U/S 364 I.P.C., life imprisonment and a fine of Rs. 1000/- U/Ss 302 I.P.C. and two years R.I. and a fine of Rs. 500/- U/S 201 I.P.C. and in default of payment of fine to undergo one year’s R.I. However, all the sentences were directed to run concurrently. 12- Feeling aggrieved, the accused Ramesh has preferred the instant appeal. 13- We have heard Mr. S.K. Agarwal, Senior Advocate, assisted by Mr. S.S. Bhandari, Advocate for the appellant and Mr. B.S. Parihar, learned Brief Holder appearing on behalf of the State and perused the record. 14- Learned counsel for the appellant has argued that the witnesses examined by the prosecution in the instant case are interested witnesses, as are related to the complainant, hence their testimony cannot be relied upon. 15- We do not find any force in the above submission of learned defence counsel. It is settled principle of law that, if the testimony of a witness is found reliable and trustworthy, then the same 6 cannot be discarded only on the ground that he is related to the complainant side. 16- The prosecution case against the accused/appellant is that on 14-7-1992 at about 12 noon he has kidnapped the deceased Bipin, a minor boy, from the lawful guardianship of his father, with intent to commit his murder and after committing his murder, the accused, in order to destroy the evidence against him, thrown the dead body in the sugarcane field of Akhtar. 17- P.W.2, Km. Manju and P.W.3, Km. Poonam are the witnesses of the fact that the accused Ramesh kidnapped deceased Bipin from near his house, when he was returning from his school, alluring him to give something for eating. P.W.2, Km. Manju has deposed that on 14.7.1992, at about 12 or 12.30 noon, she was returning from school along with Poonam. When they reached near their house, deceased Bipin, was ahead of them, accused Ramesh met the deceased Bipin and he stopped him and showing him some money and alluring him to given him something to eat, carried him towards the market in his cycle. This witness also deposed that on the asking of complainant Dharam Pal, she had told this fact to him. P.W.3, Km. Poonam, has also supported the version of P.W.1, Km. Manju on the point that the accused after giving allurement to Bipin had carried him on his cycle towards the market. These witnesses have also stated that the accused Ramesh used to visit the house of his maternal uncle Palu and they knew him prior to the incident. These two witnesses have been cross-examined by the defence, but nothing 7 unusual has come out from their statement which may render their testimony unreliable. Perusal of the testimony of P.W.2, Km. Manju and P.W.3, Km. Poonam, shows that they are a natural witnesses and they are giving true version. In our view both these witnesses are trustworthy. 18- The testimony of P.W.2, Km. Manju and P.W.3, Km. Poonam, has further been corroborated by the testimony of P.W.1, Smt. Roshani Devi. This witness has deposed that at about 12 noon she was washing clothes at the water reservoir. Bipin and accused Ramesh drank water at the water reservoir and thereafter Ramesh seated Bipin at his cycle and carried him towards the market. 19- Therefore, from the statements of all the above three witnesses, it is quite clear that the deceased Bipin was kidnapped by accused Ramesh from near his house and he was lastly seen in the company of the accused Ramesh and from their evidence offence U/S 363 I.P.C. is fully established against accused Ramesh. 20- The last seen evidence is further supported by the evidence of P.W.6, Bool Chand, who has deposed that at about 5-6 P.M. he had seen deceased Bipin and accused Ramesh along with one another person, a resident of Badsahpur, in the market near Lakshar Railway Station. This witness further deposed that he was in hurry, hence he did not think it proper to talk to them. From the evidence of this witness it is, thus, proved that accused Ramesh was carrying the deceased Bipin towards Lakshar. 8 21- Learned defence counsel also submitted that had the prosecution witnesses seen the accused Ramesh carrying the deceased Bipin with him in his cycle, they would have certainly obstructed the accused and raised hue and cry. 22- The above submission of learned counsel has no substance. In the statements of P.W.1, Smt. Roshani, P.W.2, Km. Manju and P.W.3, Km. Poonam it has come that accused Ramesh, prior to the incident, used to visit the house of his maternal uncle and he used to play with the deceased, hence they did not think it proper to raise alarm when the accused was carrying the deceased with him in his cycle. P.W.6, Bool Chand also deposed that when he had seen accused Ramesh and Bipin in the company of one another person, it was already 5-6 P.M. and he was in a hurry to go to his home, hence he did not think it proper to talk to these persons. 23- The prosecution case further is that on 16-7-1992, at about 6 P.M. on the pointing out of the accused, the dead body of deceased Bipin Kumar, was recovered from the sugarcane field of one Akhtar, resident of Sultanpur. Learned defence counsel has argued that the prosecution to prove the recovery of the dead body of Bipin Kumar has examined P.W.4, Tamijul Hassan, who is a pocket witness of the police and his testimony cannot be relied upon. 24- This submission advanced on behalf of the defence counsel is also without substance. It is the specific case of the prosecution that after the arrest of the accused Ramesh on 16-7-1992, on his 9 pointing out, the dead body of the deceased was recovered from the sugarcane field of one Akhtar resident of Sultanpur. The investigating officer R.K. Singh has prepared the recovery memo Ext. Ka.2, about the recovery of the dead body of Bipin Kumar. In the said recovery memo, the I.O. has mentioned the fact that on the pointing out of the accused they had reached the place of recovery from the way through Lakshar, as narrated by the accused. The accused himself got stopped the vehicle and went to the place of recovery. The recovery memo is signed by P.W.4, Tamijul Hassan and some other persons. P.W.4, Tamijul Hassan, has deposed that at about 6 P.M. when he along with Taslim Ahmad, Pradhan of village Taslim was standing at Lakshar- Haridwar road, police of Gangnahar brought accused Ramesh there. Dharam Pal was also with the police. They both were also took by the police with them. Accused Ramesh carried them towards eastern side of the road and went in the sugarcane field and stood near the dead body. Dharam Pal identified the dead body of Bipin. He also deposed that string of sugarcane grass was wrapped around the neck of the deceased. The statement of this witness is further corroborated by P.W.5, Dharam Pal. This witness has deposed that police has taken two persons with them from the wayand the accused Ramesh had escorted them to the place where the dead body of deceased Bipin Kumar was thrown by him. This witness has also signed the recovery memo. Therefore, the evidence of P.W.4, Tamijul Hassan is reliable and trustworthy and we find that the prosecution has been successful in proving the recovery of the dead body on the pointing out of the accused/appellant. 10 25- The ocular version of the prosecution case find support from the medical evidence. As stated above according to the prosecution case string of sugarcane grass was wrapped around the neck of the deceased when the dead body was recovered and the murder was committed by strangulation. P.W.7, Dr. R.K. Pandey, has opined that the death of the deceased was the result of asphyxia, due to strangulation. The doctor also stated that the death of the deceased might have been caused 3-4 days ago. 26- Learned counsel for the appellant also submitted that the accused has been roped in with the crime after due deliberation and consultation and that is the reason that the first information report has been lodged with delay. 27- This argument of the learned counsel for the accused/appellant has also no force. P.W.5, Dharam Pal, complainant of the case, has deposed that when his son Bipin did not return home from his school upto 12 noon, he started his search in the locality and P.W.2, Km. Manju informed him that Bipin was carried by accused Ramesh with him to the market for giving him something for eating and on the impression that they will return back in the evening, he waited for Bipin and when in the evening they did not return, then he again started search of Bipin and went to the village of accused and his inlaw’s village, where he came to know that accused did not return home for about 5-6 days, then he got prepared the written report and lodged it at the police station on 15-7-1992. Perusal of the written report reveals that the complainant has 11 mentioned all the relevant facts in it. In the aforesaid facts and circumstances of the case the first information report in the instant case, cannot be said to be lodged with delay. 28- Therefore, we are of the confirmed view that the prosecution has been successful in establishing the charges levelled against the accused/appellant. It is amply proved by the evidence of P.W.1, Smt. Roshani Devi, P.W.2, Km. Manju, P.W.3, Km. Poonam and P.W.6, Bool Chand that the deceased Bipin was lastly seen with accused Ramesh. From the evidence of Dharam Pal, complainant and P.W.4, Tajimul Hassan and the recovery memo Ext. Ka.2, it has further been proved that on the pointing out of the accused/appellant the dead body of Bipin was recovered from a sugarcane field and string of sugarcane grass was wrapped around the neck of Bipin. Therefore, from the material available on record, it is established that the accused/ appellant has kidnapped Bipin, a minor boy, from the lawful guardianship of his father with intent to commit his murder and after committing his murder by strangulating his neck thrown his dead body in the sugarcane field. Thus, the offences U/S 363, 364, 302 and 201 I.P.C. have been proved against the accused/appellant. We do not find any illegality in the judgment passed by the learned trial court. 29- From the discussion made above, the appeal lacks merit and is liable to be dismissed. 30- Accordingly, the appeal is dismissed. The conviction and sentences awarded by the trial court 12 against the accused/appellant U/Ss 363, 364, 302 and 201 I.P.C. are upheld. 31- The accused/appellant Ramesh is on bail. His bail bonds are cancelled and sureties discharged. He be taken into custody forthwith so as to serve out the sentences passed against him. 32- Let the record of the case be transmitted to the trial court concerned for compliance. The compliance report be submitted to this court within a month. ( B.C. Kandpal, J.) ( J.S. Khehar, C.J.) 21-12-2009 ISB