HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No.1724 of 2001 (Old No.1202 of 2000) Shankar Singh ....Appellant Versus State of Uttar Pradesh (Now State of Uttarakahnd) ...Respondent Mr. Lokendra Dobhal, learned counsel for the appellant. Mr. M.A. Khan, learned Brief Holder for the State. Coram: Hon’ble Prafulla C. Pant, J. Hon’ble V.K. Bist, J. Prafulla C. Pant, J. (Oral) This appeal preferred under Section 374 of Code of Criminal Procedure, 1973 (for short Cr.P.C.) is directed against the judgment and order dated 12.05.2000 passed by Sessions Judge, Pithoragarh in Sessions Trial No.39 of 1996, whereby said court has convicted the accused/appellant Shankar Singh under Section 302 of Indian Penal Code, 1860 (for short I.P.C.) and sentenced him to imprisonment for life. 2. Heard learned counsel for the parties and perused the lower court record. 3. Prosecution story in brief is that Tej Singh (deceased) was orphan as his parents had died due to which he started living with his maternal uncle P.W.1 Kalyan Singh. He (Tej Singh) developed illicit relations with wife of 2 accused/appellant Shankar Singh who wanted him to remove from his way. On 25.07.1996 Tej Singh had gone to graze cattle with Bhupendra Singh (P.W.2) and Shankar Singh (accused/appellant). Accused/appellant Shankar Singh had taken a “KHUKHRI” (a sharp edged weapon) with him. At about 11:00 a.m. he inflicted injuries on the person of Tej Singh and killed him. P.W. 1 Kalyan Singh waited for return of Tej Singh and thereafter started searching for him for about two days but whereabouts of the deceased could not be known. On 27.07.1996 P.W.4 Dewan Singh informed the (P.W.1) Kalyan Singh that Bhupendra Singh (P.W.2) has told him that Tej Singh was murdered by Shankar Singh (appellant) within the limits of Jhirkuni, Tok of Saktola where the three had gone for grazing the cattles. On receiving the information Kalyan Singh went there and saw the dead body of his nephew Tej Singh. Thereafter he gave first information report (Ext. A-1) with Patwari of the area (In Uttarakhand hills under U.P. Governments Notification No.494/VIII-418 dated 7th March, 1916) certain Revenue Officers are given police powers. On the basis of first information report Patwari Gallagaon having jurisdiction registered crime no.1 of 1996 and prepared check report (Ext.A-9) on 27.07.1996 at about 12:00 noon against accused/appellant Shankar Singh and P.W.2 Bhupendra Singh in respect of offence punishable under Section 302 and 201 I.P.C. Investigation was conducted by Rajendra Singh Dasila (P.W.7), Patwari of the area. He went to the jungle, took dead body of Tej Singh in his possession and prepared inquest report (Ext. A-5), in the presence of the witnesses. He further prepared sketch of the dead body (Ext. A-11), Police 3 Form No.13 (Ext.A-12), Sample Seal (Ext.A-13), and sent to the body in a sealed condition for post mortem examination. P.W.3 Dr. U.S. Adhikari conducted post mortem examination of dead body of Tej Singh on 28.07.1996 at about 10:00 am and prepared autopsy report (Ext. A-4). The said Medical Officer recorded four incised wounds as ante-mortem injuries and opined that shock and haemorrhage as a result of ante- mortem injuries was the cause of death. Meanwhile, the Investigating Officer arrested accused/appellant Shankar Singh and P.W.2 Bhupender Singh and interrogated them. He also interrogated the other witnesses and prepared site plan (Ext.A-10) after inspecting the place of incident. During investigation Rajendra Singh Dasila (P.W.7), the Investigating Officer, recovered “KHUKHRI” used in the crime on pointing out of accused/appellant Shankar Singh and got prepared recovery memo (Ext.A-6). He also recovered blood stained cloth of Shankar Singh from his house, on 02.08.1996 and prepared recovery memo (Ext.A- 14). During investigation, it was revealed that Bhupendra Singh P.W.2, though had gone with Tej Singh and Shankar Singh in the jungle but he was not involved in the crime, and since he was threatened by Shankar Singh (appellant), he did not disclose about the incident to anyone. With these findings, the Investigating Officer submitted chargesheet (Ext.A-17) against accused/appellant Shankar Singh for his trial in respect of offence punishable under Section 302 I.P.C. 4. On receipt of the chargesheet, the Chief Judicial Magistrate, Pithoragarh after giving necessary copies to the accused, appears to have committed the case to the court of 4 Sessions for trial. On 28.11.1996, Sessions Judge, Pithoragarh after hearing the parties framed charge of offence punishable under Section 302 I.P.C. against accused Shankar Singh who pleaded not guilty and claimed to be tried. On this prosecution got examined P.W.1 Kalyan Singh (Informant), P.W.2 Bhupendra Singh (Eye witness), P.W.3 Dr. U.S. Adhikari who conducted post mortem examination, P.W.4 Deewan Singh who gave link evidence and also witnessed recovery of the weapon used in the crime, P.W.5 Bhawan Singh, witness of the inquest report, P.W.6 Bahadur Singh, witness of the recovery of blood stained cloth and P.W.7 Rajendra Singh Dasila who investigated the crime. The oral and documentary evidence, was put to the accused under Section 313 Cr.P.C. in reply to which he alleged same to be false. He pleaded that he had enmity with Deewan Singh and Bhupendra Singh, as such he has been falsely implicated in the crime. However, no evidence in defence was adduced. After hearing the parties, the trial court found accused Shankar Singh guilty of charge of offence punishable under Section 302 I.P.C. whereafter on hearing of sentence, the trial court sentenced the convict to imprisonment for life. Aggrieved by said judgment and order dated 12.05.2000 passed by Sessions Judge, Pithoragarh in Sessions Trial No.39 of 1996, this appeal was preferred by the convict before Allahabad High Court on 20.05.2000 where it was admitted on 24.05.2000. The appeal is received by this Court under Section 35 of U.P. Reorganization Act, 2000 (Central Act No.29 of 2000) for its disposal. 5 5. Before further discussion, we think it just and proper to mention ante-mortem injuries recorded by P.W.3 Dr. U.S. Adhikari in the autopsy report (Ext.A-4) on 28.07.1996 at 10:00 am. The same are being reproduced below:- “i. Incised wound posterior slightly left on the neck about 10cm x 4 cm. spindle shaped, clear smooth margin, maggots present on the wound. Near muscle and vessels are cut in two parts. ii. Incised wound on neck left side about 9cm x 3½ cm. wide spindle shaped margins clear cut directions antero posteriolly 3cm. above injury no.1st, maggots present on the wound. Blood vessels are cut into two parts. iii. Incised wound on cheek left side about 9cm x 3½ cm. spindle shaped margins are clear cut just above ramous of left mandible slightly oblique direction, maggots present. iv. Incised wound on left cheek just below left eye about 8cm x 3cm spindle shaped margin clear cut, maggots present.” At the time of autopsy, the medical officer found that the dead body was about 3-4 days old. He further opined that shock due to haemorrhage was the cause of the death. From the medical evidence on record, as discussed above, it is established on the record that Tej Singh died homicidal death. Now this Court has to see whether the accused/appellant Shankar Singh committed murder of Tej Singh as suggested by prosecution or not. 6. P.W. 1 Kalyan Singh is informant, who has stated that Tej Singh was his real nephew (BHANJA) who used to live with him after the death of his parents. It is further stated by this witness that on 25.07.1996 Tej Singh had gone to graze 6 the cattle but he did not return back. He further states that on 27.07.1996 Deewan Singh (P.W.4) disclosed him that Tej Singh was murdered by Shankar Singh and his dead body is lying in Saktola Tok. P.W.1 Kalyan Singh further told that he got lodged first information report (Ext.A-1). He also stated that once deceased told him that he was threatened by Shankar Singh for having alleged relation with his wife. The witness has also stated that he witnessed the preparation of inquest report as to the delay in lodging the first information report. As to the delay in lodging the first information report, P.W.1 Kalyan Singh, in his cross examination has explained that for two days he kept on searching for the deceased. The statement of this witness is natural and reliable. 7. P.W.2 Bhupendra Singh is the only and star eye witness of the incident. He states that he knew Shankar Singh (accused) and Tej Singh (deceased) as both lived in his village Kakad. Narrating the incident, the witness states that on 25.07.1996 he had gone to graze his cattle in the forest with Shankar Singh and Tej Singh who had also taken their cattles. According to this witness at about 11:00 am on aforesaid date accused Shankar Singh inflicted injuries with a “KHUKHRI” (sharp edged weapon) on the person of Tej Singh who died on the spot. P.W.2 Bhupendra Singh further states that accused Shankar Singh threatened him that if he dared to disclose about the incident, he would also be killed. The witness further states that due to this reason he could not disclose about the incident to anyone. P.W.2 Bhupendra Singh in his cross examination told that Tej Singh (deceased), Shankar Singh (accused) and he (P.W.2) had 7 taken their cattles to the same jungle Saktola Tok which lies within the limits of Jhirkuni village. He admits in his cross examination that because he had gone with the deceased and the accused to the jungle, as such after the report lodged by Kalyan Singh, (P.W.2) he was also arrested alongwith Shankar Singh (accused) and later released. He has also stated in the cross examination that he was interrogated by the Investigating Officer. He has also stated that he disclosed about the incident to Deewan Singh. 8. The statement of P.W.2 Bhupendra Singh is corroborated by the statement of P.W.4 Deewan Singh who states that on 27.07.1996 Bhupendra Singh told him that Shankar Singh committed murder of Tej Singh on which he told about the fact to Kalyan Singh (P.W.1). P.W.4 Deewan Singh has further proved the inquest report which was prepared in his presence. He (P.W.4) further proved the fact that during investigation, the Investigating Officer recovered “KHUKHRI” from the jungle on pointing out of accused Shankar Singh and memorandum (Ext. A-6) was prepared in his presence. 9. P.W.5 Bhawan Singh is a formal witness who has proved the preparation of inquest report prepared by the Investigating Officer. 10. P.W.6 Bahadur Singh is the witness of recovery of blood stained cloths from the house of Shankar Singh whereafter Investigating Officer prepared the report (Ext.A- 14). From the papers on record, it appears that the blood 8 stained cloths, Khukhri and stones found at the spot were sent in a sealed condition for chemical analysis and a report dated 21.08.1996 was received by the Chief Judicial Magistrate, Pithoragarh, wherein the Joint Director of the Forensic Laboratory, Agra informed that all the articles 1 to 7 (which included khukhri, blood stained clothes of accused and the clothes of the deceased) were found containing stains of blood. However, due to the disintegration, the blood stains could not be classified. 11. On behalf of the appellant, it is argued that it has come on record in the statement of P.W.3 Dr. U.S. Adhikari that there were maggots present in the dead body, as such the deceased could have died about a week before autopsy was conducted. However, we do not find substance in the argument. After 48 hours of the death in the process of decomposition, maggots also start crawling in the dead body and the medical officer himself has opined that dead body was 3-4 days old. It is pertinent to mention here that incident is said to have taken place on 25.07.1996, and the autopsy took place on 28.07.1996, as such there is nothing unnatural which creates doubt about the date of the death of Tej Singh. 12. Next argument advanced on behalf of the appellant is that Bhupendra Singh (P.W.2) in order to save his involvement in the crime, has implicated the appellant falsely. We have carefully gone through the entire evidence on record and we do not find any reason to doubt the truthfulness of the prosecution story narrated by P.W.2 Bhupendra Singh. He was a student of class IX. He had no 9 motive to commit the crime. It is natural on his part that after accused Shankar Singh by placing “KHUKHRI” on his neck threatened him of dire consequences, he did not dare to disclose the incident. It was natural on the part of the boy to keep quiet, till he got compelled to disclose the incident. 13. Having considered the submissions of learned counsel for the parties and after going through the papers on record, for the reasons as discussed above, we do not find any force in this appeal which is liable to be dismissed. Accordingly, the appeal is dismissed. The conviction and sentence recorded by Sessions Judge, Pithoragarh in Sessions Trial No.39 of 1996 against appellant Shankar Singh under Section 302 I.P.C is hereby affirmed. The appellant is on bail. His bail is cancelled. He shall surrender before the court concerned for serving out the sentence awarded by the trial court. Let the lower court record be sent back to make the appellant serve out the sentence affirmed by this Court. (V.K.Bist, J.) (Prafulla C. Pant, J.) 07.03.2011 07.03.2011 Arti