IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No.2068 of 2001 (Old No.698 of 1992) Udai Singh …….….…. Appellant Versus The State …….….… Respondent Dated: April 1, 2009 Sri U.P.S. Negi, Advocate for the appellant Sri M.A. Khan, learned brief holder for the State HON. DHARAM VEER, J. This appeal, preferred by the appellant u/s 374(2) of Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 07.04.1992 passed by Sessions Judge, Pithoragarh in Sessions Trial No.02 of 1991, State Vs. Udai Singh, whereby the learned Sessions Judge has convicted the appellant/accused under Section 306 of Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced him to three years’ R.I. 2. I have heard Sri U.P.S. Negi, learned counsel for the appellant and Sri M.A. Khan, learned Brief Holder for the State and perused the entire material available on record. 3. In brief, the prosecution case is that complainant Rai Singh (P.W.5) lodged a report on 7.11.1988 with the averments that appellant/accused Udai Singh took his wife Vimla and mother Rudra Devi along with him and brought them to Pithoragarh on 4/5 August, 1988. Thereafter, the appellant/accused never 2 had any correspondence with his in-laws. On 3.11.1988 the complainant received a telegram that his daughter (Vimla) has died due to burning. The complainant was about to come as soon as he learnt about the death of his daughter. But on 4.11.1988, the parents of appellant/ accused sent their relatives to the complainant. The said relatives informed the complainant that there was a longstanding quarrel between the appellant/accused and his wife Vimla, therefore, the appellant/accused trained his mother in stove burning and cooking as well. Victim Vimla used to clean utensils only. Whenever the victim Vimla used to cook food, appellant/accused used to object his mother and also used to beat his wife. However, the neighbourers used to pacify them. On the day of the incident, appellant/accused beaten his wife and after getting pacified, he went to the Parrade in his service. Thereupon, the wife of appellant/accused wept a lot and said that had there been her brother, she would have said everything to him, but there is none of her. The victim Vimla then tried to sprinkle kerosene oil on her body. However, the mother of the appellant/accused and the neighbourers pacified her. When the appellant/ accused heard about the incident after coming back, then he again beaten his wife. When the inhabitant of the first floor came to intervene, then the appellant/accused scolded him by saying that why he was intervening. Thereafter, in the evening the mother of appellant/ accused Rudra Devi and the appellant/accused Udai Singh went to see drama after locking the victim inside the room. As soon as they sat in drama-hall, the personnel of his company caught him and took him with them. Thereupon, mother of appellant/accused shouted that where they were taking his son. At that time she came to know that victim Vimla had been taken to 3 Hospital from the room. After that the mother of appellant/accused started making different stories. This raised a doubt in the minds of every one that these mother and son had caused death of victim Vimla. The complainant further stated that the marriage of his daughter Vimla took place in the year 1986 with the appellant/accused Udai Singh. For about one and half year, all was well, however his daughter Vimla used to narrate the shortcomings of her in-laws house to her mother and friends. Later on, she also narrated her problems to the complainant (Ram Singh) as well, who tried to persuade her. Victim Vimla informed her mother that from the date when the sister of appellant/accused came to the house, she had started living as the owner of the house and started torturing her (Vimla). Sister of appellant/accused used to live in her parents house after her marriage and had given birth to an illegitimate child due to which everyone was shameful. By then the marriage of victim Vimla did not take place. After the marriage of victim Vimla, appellant/accused Udai Singh brought his sister back after beating husband of her sister. Victim Vimla complained her mother that appellant/accused Udai Singh, his sister Smt. Shakha and his mother Smt. Rudra Devi thought that had the marriage of appellant/accused taken place by that time, they would have got sufficient amount of dowry and also would have got a literate girl in place of Vimla. She (Vimla) also complained about the character of sister of appellant/accused. When the appellant/accused Udai Singh used to remain out, his sister Smt. Shaka used to entertain her boy friends in the house. With these averments, the application was moved by father of victim, i.e. Ex.Ka-5. The information with regard to the said incident was sent by Capt. M.S. Patil, Adjutant, 7th 4 Batalion of the Garhwal Rifles to Police Station, Pithoragarh regarding the death of victim Smt. Vimla, who died on 29th October, 1988 at 161 Military Hospital at 12.30 A.M. Thereafter, the investigation was entrusted to P.W.7 Shyam Singh Negi. The I.O. thereafter started investigation of the case and prepared Panchayatnama, i.e. Ex.Ka-6. He also prepared Photo Lash i.e. Ex.Ka-7, Police Form No.13 i.e. Ex.Ka-8, specimen of seal i.e. Ex.Ka-9, Police Form No.33, i.e. Ex.Ka-10. The I.O. then sent the dead-body for post-mortem through Constable Om Prakash and Anil Kumar. The post-mortem of dead body was conducted by P.W.1 Dr. Bhupal Singh Bisht on 29.10.1988 at 1:00 P.M. and the post-mortem report is Ex.Ka-1. The I.O. inspected the place of occurrence and recovered two plastic jeericanes of kerosene oil and a half-burnt match box and some burnt pieces of red cloth from there and prepared a Fard, i.e. Ex.Ka-2. The I.O. also recovered a lock which was said to be applied on the door and prepared a Fard, i.e. Ex.Ka-3. The I.O. also recovered the letters dated 28.10.1988 and 25.10.1988 from the place of occurrence and also prepared a Fard, i.e. Ex.Ka-4. The I.O. also prepared the site plan of the place of occurrence, i.e. Ex.Ka-11. During the course of investigation, the I.O. recorded the statements of witnesses and after completing the investigation, filed the charge sheet against the appellant/accused, i.e. Ex.Ka.12. It is pertinent to mention that at the time of submission of charge sheet, the appellant/accused Udai Singh was under the military custody. 4. Learned CJM, Pithoragarh has committed the case to the court of Sessions on 15.02.1991 after giving necessary copies to the appellant/accused as required under Section 207 Cr.P.C. 5 5. On 15.03.1991, learned Sessions Judge, Pithoragarh framed the charge against the appellant/accused under Section 306 IPC. The charge was read over and explained to the appellant/accused who pleaded not guilty and claimed to be tried. 6. To prove its case, the prosecution has examined P.W.1 Dr. Bhupal Singh Bisht, who conducted the post-mortem, P.W.2 Naik Jagdish Singh, P.W.3 Nayab Subedar Mahendra Singh, P.W.4 Naib Subedar Vijay Singh, P.W.5 Rai Singh, father of deceased, P.W.6 Sobat Singh, maternal uncle of deceased, P.W.7 S.I. Shyam Singh Negi, I.O. of the case and P.W.8 Hawaldar Udai Singh. 7. Thereafter, the statement of the appellant/ accused was recorded u/s 313 of Cr.P.C. The oral and documentary evidence was put to him in question form, who denied the allegations made against them. In documentary evidence, he has filed an application to the effect that the father in law of the appellant/accused sent a letter that Vimla is ill and therefore, to take her with him (appellant/accused) for treatment. He also filed prescription slip of Military Hospital and that of Tantrik along with x-ray plate in his defence. In oral evidence he has examined D.W.1 Mohan Singh. 8. After appreciating the evidence on record and after hearing learned counsel for the parties, the learned Sessions Judge, Pithoragarh vide judgment and order dated 07.04.1992 convicted and sentenced the appellant/ accused as discussed above. Feeling aggrieved with the aforesaid judgment and order, the appellant/accused has preferred the present appeal. 6 9. Before further discussion, it is pertinent to mention the ante-mortem injuries found on the person of deceased Smt. Vimla whose post-mortem was conducted on 29.10.1988 at 1 P.M. by Dr. Bhupal Singh Bisht (P.W.1). The injuries recorded in post-mortem report (Ex.Ka-1) read as under: - 1. Lacerated wound3 cm x 4 cm in the left lower part of leg, 3” above left ankle joint vains, tenderness exposed. 2. Lacerated wound 3 cm x 4 cm on the right part of lower leg, 3” above right ankle joint, vains, tenderness exposed 3. 3rd degree burn spacing both feet 4. 90% burn all over, 2nd and 3rd degree burn encircling whole body, face, neck 5. Singeing of hair, thigh, legs. Cause of death was shown as a result of shock due to extensive burns. 10. To prove the aforesaid post-mortem report, the prosecution has examined P.W.1 Dr. Bhupal Singh Bisht who has stated that on 29.10.1988 at 1:00 P.M., he conducted the autopsy of dead body of Smt. Vimla and he found the above-mentioned ante-mortem injuries on her body. He has opined that the deceased had died due to ante-mortem burns and shock. He also proved the post-mortem report Ex.Ka-1 to be prepared by him. 11. To further prove its case, the prosecution has examined P.W.2 Nayak Jagdish Singh who has stated that in the year 1988, he was posted along with appellant/accused Udai Singh, who was posted as Rifle Man at 7th Garhwal Rifles. Appellant/accused Udai Singh was living along with his family in a government quarter which was adjacent to his quarter. In his (appellant’s) 7 family, his (appellant’s) wife and mother were residing. On 28.10.1988 at about 6:30 P.M., he heard screaming on hearing which he came out and saw that in the quarter of appellant/accused, room was locked and from inside the room, sound of screaming was coming. Then he moved to Naib Subedar Mahendra Singh and informed him. Then Mahendra Singh, Naib Subedar came with him. After that he was sent by Mahendra Singh to inform Subedar Kripal Singh. Then he along with Subedar Kripal Singh came on the place of occurrence and by then, Mahendra Singh had opened the lock and only smoke was there inside the room. He also entered inside the room. After a short while, wife of appellant/accused was brought out in a burnt condition and she was taken to Military Hospital where she succumbed to her injuries. He further stated that he did not know about the relations of the appellant/accused towards his wife and he (appellant) used to keep his door closed. This witness was cross- examined by the defence counsel but nothing has come out in his statement which may create any doubt in his statement. The statement of this witness is reliable and believable. 12. P.W.3 is Naib Subedar Mahendra Singh who has stated that appellant/accused Udai Singh was posted as Rifle Man in 7th Garhwal Rifles and he was living in government quarter along with his wife and mother. His residence is 30-35 yards from that of appellant/accused. On 28.10.1988 at about 6:30 P.M., Nayak Jagdish Singh came and informed that appellant/accused Udai Singh and his mother had gone to see the drama and the room is locked from outside and the sound of scream was coming from inside the house. On this he along with Naik Jagdish reached at the quarter of appellant/accused Udai Singh and from the bunch of keys given by Naik Jagdish, 8 the lock was opened. While he was trying the keys, he sent Jagdish to bring Subedar Kripal Singh. When he entered inside the room, then the room was full of smoke and wife of appellant/accused Udai Singh was found to have been burnt. Then he covered the victim with a blanket and somehow extinguished the fire. He came out of the room due to smoke and by them Kripal Singh had also come along with Jagdish. Then the wife of appellant/ accused Udai Singh was taken to the military hospital, where she succumbed to her injuries. He also stated that he does know about the relations of the appellant/ accused with his wife. He further stated that the bedding was there on the cot and wife of appellant/accused Udai Singh was burnt. This witness was also cross-examined by the defence counsel but nothing has come out in his statement which may create any doubt in his evidence. The statement of this witness is also reliable and believable. 13. P.W.4 Naib Subedar Vijay Singh who has stated that on 29.10.1988 he was posted in 7th Garhwal Rifles. On that day, S.I. of police had come to investigate the matter. The S.I./IO had inspected the room of appellant/ accused before him and Naib Subedar Mahendra Singh from where a plastic jerricane of 20 liter and another jerricane of 10 liter was taken into possession, those jerricanes are Ex.1 and Ex.2 respectively. He also stated that matchbox was also taken into possession from there by the I.O. and that was sealed there, that matchbox was marked as Ex.3. The I.O. also took in his possession the burnt clothes from the place of occurrence and sealed them in a piece of cloth, i.e. Ex.4. The I.O. also prepared a Fard for taking the above-said articles Ex.1 to Ex.4, that Fard is Ex.Ka-2. A lock (Ex.5) was also recovered from the place of occurrence and that was sealed on the 9 spot and a Fard was prepared, i.e. Ex.Ka-3. The I.O. also recovered two letters Ex.6 and Ex.7 from there and prepared a Fard, i.e. Ex.Ka-4. This witness was also cross-examined by the defence counsel but nothing has come out in his statement which may create any doubt in his evidence. The statement of this witness is also reliable and believable. 14. P.W.5 is Rai Singh, father of the victim, who has stated that the marriage of his daughter Vimla was solemnized with the appellant/accused in the year 1986. In the house of appellant/accused, his mother Rudra Devi and sister Shakha Devi and father Pooran Singh were residing. For 1-1½ year of marriage, behavior of appellant/accused towards his daughter was normal. The appellant’s sister was left by her husband for the reason that she was a lady of loose character and since then she started residing in her parental house. Since then Shakha Devi and Smt. Rudra Devi started harassing his daughter. Both of them also instigated appellant/accused Udai Singh due to which his behavior towards his daughter also became strained. Appellant-accused Udai Singh also started beating his wife and started harassing her. He also went to the in-laws of his daughter so as to leave his daughter and he also tried to persuade the in-laws of his daughter. In the year 1988, appellant/accused Udai Singh had taken his daughter and his mother at Pithoragarh. After 1½ month, he also came to Pithoragarh where his daughter complained him that her mother in law and husband were harassing her. Then he went to his house. On 4.11.1988, a person from the appellant’s village came and informed him that his daughter has died. On 5.11.1988, he along with his brother in law came to Pithoragarh. His son Bhim Singh was also there who also lodged the report of this incident. 10 This witness was also cross-examined by the defence counsel but nothing has come out in his statement which may create any doubt in his evidence. The statement of this witness is also reliable and believable. 15. P.W.6 is Sobat Singh who has stated that his sister’s daughter Vimla was married with appellant/ accused in June, 1986. In the year 1988, appellant/ accused brought victim Vimla along with him at Pithoragarh. In November, 1988 he received information about the death of Vimla which was conveyed by mother of appellant/accused that Vimla had committed suicide. On this information, he along with father of Vimla came at Pithoragarh and as per the direction of father of victim namely Rai Singh, he prepared the report i.e. Ex.Ka-5. He further stated that the behavior of appellant/accused towards his sister’s daughter became normal for about 1¼ year and when the sister of appellant/accused came at her parental house, since then behavior of appellant/ accused towards his sister’s daughter became strained and he used to harass the victim for dowry. This fact was told to him by victim Vimla. This witness was also cross- examined at length by the defence counsel but nothing has come out in his statement which may create any doubt in his evidence. The statement of this witness is also reliable and believable. 16. P.W.7 is S.I. Shyam Singh Negi who has stated that on 28.10.1988 he was posted as S.I. at P.S. Pithoragarh. On that day at 9:15 P.M. as per the memo received from Military Hospital, he registered the case in the police station. He received the information that Smt. Vimla has admitted in the hospital in burnt condition. On 29.11.1988, Constable Om Prakash informed him that Smt. Vimla had died. Then he prepared the Panchayatnama, i.e. Ex.Ka-6. He also prepared the Photo 11 Lash, Chalan Lash, specimen of seal and letter for conducting the post-mortem, i.e. Ex.Ka-7 to Ka-10 respectively. On the same day i.e. on 29.10.1988, he inspected the place of occurrence and prepared the site plan, i.e. Ex.Ka-11. On the same day he recovered two empty jerricanes of kerosene oil, match box and burnt red clothes and prepared a Fard, i.e. Ex.Ka-2. Jerricanes, Match box, burnt Bra and red cloth were marked as Ex.1 to 4 respectively. He also recovered a lock Ex.5 which was said to be applied at the door and prepared a Fard, i.e. Ex.Ka-3. He also recovered two letters Ex.6 and Ex.7 and prepared a Fard, i.e. Ex.Ka-4. On 30.10.1988 he registered the case crime no.204/1988 u/s 306 IPC in the police station. During the course of investigation he recorded the statements of witnesses and after completing the investigation, he filed the charge sheet, i.e. Ex.Ka-12. During investigation, brother of deceased Bhim Singh also gave an inland letter dated 18.11.1988 to him i.e. Ex.8. 17. P.W.8 is Hawaldar Udai Singh who has stated that in June, 1989 he was retired from Army. In the year 1988, he and appellant/accused Udai Singh were posted at Pithoragarh. The family of appellant/accused was also there in which his wife and mother were there. His quarter and quarter of appellant/accused were in a common Barrack. On the date of incident, some quarrel was going on between the mother and wife of appellant/ accused. He went to them and tried to persuade them. After that he went to his duty. On the same day at 1:00 P.M., he came back to his quarter and persuaded appellant/accused Udai Singh to convince his mother and wife not to quarrel. On the same day, he went to see the picture along with his wife. Appellant/accused was also there in the picture hall and from there, he was called by 12 higher officials. There he came to know that wife of appellant/accused had committed suicide by setting herself at fire. This witness was also cross-examined at length by the defence counsel but nothing has come out in his statement which may create any doubt in his evidence. The statement of this witness is also reliable and believable. 18. After that the statement of appellant/accused Udai Singh was recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to him in question form who denied the allegations made against him. On the date of incident, when he asked his wife Vimla to come along to see the Drama, she refused to come and asked him and his mother to go by saying that she would prepare the food in the house. But when he was in drama hall, he was taken into custody and his mother was sent to the village through a Hawaldar by the Commanding Officer. He also filed the prescription slip of Military Hospital and also that of Tantrik along with x-ray plate in his defence. In oral evidence, he got examined D.W.1 Mohan Singh in defence. 19. Sri U.P.S. Negi, learned counsel for the appellant submitted that the conviction of the appellant passed u/s 306 IPC for three years’ R.I. is correct and justified as per the evidence recorded by the trial court and he also does not want to challenge the same and he only prayed the sentence awarded to the appellant by the trial court may be directed to be set off towards the sentence undergone by him during the military custody. 20. From the evidence discussed above, Rai Singh, father of the victim, who has stated that the marriage of his daughter Vimla was solemnized with the appellant/ accused in the year 1986. In the house of 13 appellant/accused, his mother Rudra Devi and sister Shakha Devi and father Pooran Singh were residing. For 1-1½ year of marriage, behavior of appellant/accused towards his daughter was normal. The appellant’s sister was left by her husband for the reason that she was a lady of loose character and since then she started residing in her parental house. Since then Shakha Devi and Smt. Rudra Devi started harassing his daughter. Both of them also instigated appellant/accused Udai Singh due to which his behavior towards his daughter also became strained. Appellant-accused Udai Singh also started beating his wife and started harassing her. He also went to the in-laws of his daughter so as to leave his daughter and he also tried to persuade the in-laws of his daughter. In the year 1988, appellant/accused Udai Singh had taken his daughter and his mother at Pithoragarh. After 1½ month, he also came to Pithoragarh where his daughter complained him that her mother in law and husband were harassing her. Then he went to his house. On 4.11.1988, a person from the appellant’s village came and informed him that his daughter has died. On 5.11.1988, he along with his brother in law came to Pithoragarh.The statement of this witness is reliable and believable and gets corroboration from the circumstantial evidence of P.W.2 Nayak Jagdish Singh, P.W.3 Nayab Subedar Mahendra Singh, P.W.4 Naib Subedar Vijay Singh and P.W.6 Sobat Singh, who is the maternal uncle of deceased. Thus as per the evidence discussed above, offence punishable u/s 306 IPC is proved against the appellant/accused beyond reasonable doubt by the prosecution. 21. Learned counsel for the appellant/accused further submitted that in the present case, the appellant/accused was not given in the custody of police and he remained under the Military Custody. Even on the 14 date when the charge sheet was filed against him i.e. on 11.5.1988, he was under the military custody. Subsequently, on 13.4.1992, he was granted bail by the Allahabad High Court. As such, he has already served out the sentence of three years’ as awarded against him by the trial court. Hence, it was prayed on behalf of the appellant/accused that the sentence of three years’ imprisonment as awarded by the trial court may be set off towards the period undergone by the appellant/ accused during the military custody. Sri M.A. Khan, learned Brief Holder for the State also conceded to this point that the appellant/accused has served out the sentence of more than three years’ under the military custody after verifying from the records. He further submitted that the State has no objection to set off the sentence as awarded against him by the trial court towards the sentence served out by the appellant/ accused under the military custody. Section 3(xiii) of the Army Act, 1950 defines military custody which reads as under: - 3(xiii) “military custody” means the arrest or confinement of a person according to the usages of the service and includes naval or air force custody; 22. Therefore, in view of the above-said submission given by counsel for the appellant/accused and also after perusing the entire facts and circumstances of the