RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL JAIL APPEAL No.06 of 2007 Prem Ram ………….Appellant Versus State of Uttaranchal …….. Respondent Dated: October 28, 2009 Sri B.B. Sharma, learned amicus curiae for the appellant Sri Nandan Arya, learned AGA for the State/respondent Coram: Hon’ble B.C. KANDPAL, J. Hon’ble DHARAM VEER, J. PER HON’BLE DHARAM VEER, J. This appeal, preferred by the appellant through jail under Section 374(2) of Code of Criminal Procedure 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 20.11.2006 passed by the Sessions Judge, Pithoragarh in Sessions Trial No.18 of 2004, State Vs. Prem Ram, whereby the learned Sessions Judge has convicted the appellant-accused for the offences punishable under Sections 302/307/394 of the Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.). The appellant- accused was sentenced to ten years’ R.I. with fine of Rs.5,000/- and in default of payment of fine, to undergo one year’s further imprisonment u/s 307 IPC. 2 Appellant-accused was further sentenced for the life imprisonment for the offence punishable u/s 302 IPC with fine of Rs.10,000/- and in default of payment of fine, to undergo two years’ further imprisonment. The appellant-accused was further sentenced to ten years’ rigorous imprisonment with fine of Rs.10,000/- and in default of payment, to undergo two years’ further imprisonment under Section 394 IPC. It was also directed that all the sentences shall run concurrently. 2. We have heard learned counsel for the parties and perused the entire material on record. 3. In brief, the prosecution case is that P.W.1 Mohan Singh lodged an FIR stating therein that his younger brother Narendra Singh was living at the house of late Taj Singh as a tenant and along with him, complainant’s grandmother Smt. Lalita Devi and aunt Jayanti Devi were also living. Occasionally, Kamal Ram was living in that house along with the brother of complainant and for the last about one week, the appellant-accused Prem Ram S/o Kamal Ram was residing along with the brother of complainant. On 26.2.2004 in the noon, the complainant came to know that his aunt Smt. Jayanti Devi and grandmother Smt. Lalita Devi were murdered while his brother Narendra Singh was seriously been injured. It was further averted by the complainant that he was confident that the murder was committed by the appellant-accused Prem Ram and after committing murder, he also looted the ornaments of the ladies. With these averments, 3 the FIR Ex.Ka-1 was lodged by P.W.1 Mohan Singh on 26.2.2004 at 11:45 A.M. at Kotwali Pithoragarh. On the basis of FIR (Ex.Ka-1), P.W.8 H.M. Harsh Singh prepared the Chik FIR of the case, i.e. Ex.Ka-6. He also made the entry in the G.D., the carbon copy of which is Ex.Ka-7. Investigation of this case was entrusted to S.I. Laxman Singh Bisht. Injured Narendra Singh was medically been examined by P.W.5 Dr. Lalit Mohan Joshi on 26.2.2004 at 12:55 P.M. and after the medical examination, injury report Ex.Ka-2 was prepared. Inquest report of Jayanti Devi was prepared on 26.2.2004 by S.I. Vijay Pal Gautam (PW10), i.e. Ex.Ka-11. Along with the inquest report, Police Form No.13 Ex.Ka-12, sketch of dead body Ex.Ka-13, specimen of seal Ex.Ka-14 and letter sent to Medical Superintendent, B.D. Pandey, Distt. Hospital, Pithoragrah for conducting the post-mortem i.e. Ex.Ka- 15 was also been prepared. Similarly, inquest report of Lalita Devi was prepared on the same day i.e. on 26.2.2004 by S.I. Vijay Pal Gautam (PW10), i.e. Ex.Ka- 16. Along with the inquest report, Police Form No.13 Ex.Ka-17, sketch of dead body Ex.Ka-18, specimen of seal Ex.Ka-19 and letter sent to Medical Superintendent, B.D. Pandey, Distt. Hospital, Pithoragrah Ex.Ka-20 for conducting the post mortem was also been prepared. Post-mortem on the dead body of deceased Smt. Lalita Devi was conducted by P.W.6 Dr. K.C. Bhatt on 27.2.2004 at 11:00 AM and prepared the post-mortem report, i.e. Ex.Ka-3. Likewise, the post-mortem on the dead body of deceased Smt. Jayanti Devi was also conducted by 4 P.W.6 Dr. K.C. Bhatt on 27.2.2004 at 11:45 AM and prepared the post-mortem report, i.e. Ex.Ka-4. The I.O. during investigation also got recovered the robbed gold ornaments in the form of melted pieces from the house of P.W.7 Prakash Verma on 1.3.2004 and prepared Fard, i.e. Ex.Ka-5. The I.O. also got recovered a bloodstained Kudal by the appellant- accused which was used in the aforesaid crime and took the same into possession and prepared Fard, i.e. Ex.Ka-8. The I.O. also prepared the site plan of the place from where the Kudal was recovered, i.e. Ex.Ka- 10. The I.O. also got recovered a bloodstained trouser (Pajama) by the appellant-accused worn by him at the time of crime and after taking the same into possession, prepared a Fard, i.e. Ex.Ka-9. The I.O. also prepared a Fard for recovering Rs.65/- from the dead body of Smt. Jayanti Devi which were handed over to Mohan Singh and Fard was prepared, i.e. Ex.Ka-21. He also took the plain clay and the bloodstained clay from the place where the deceased Lalita Devi and Jayanti Devi were lying and prepared Fard, i.e. Ex.Ka-22. The I.O. also took the bloodstained sickle from the place of occurrence and prepared Fard, i.e. Ex.Ka-23. He also took in his possession a bloodstained Shawl and a bed sheet as well as three broken bangles of deceased Smt. Jayanti Devi and prepared Fard, i.e. Ex.Ka-24. The I.O. also recovered a Pankhi (a kind of woolen sheet) of deceased Smt. Lalita Devi and prepared Fard, i.e. Ex.Ka-25. The I.O. also took in his possession the bloodstained clay from where Narendra Singh was 5 found lying on the place of occurrence and prepared Fard, i.e. Ex.Ka-26. The I.O. also took the bloodstained sheet of Narendra Singh into possession and prepared Fard, i.e. Ex.Ka-27. Ex.Ka-28 is the site plan prepared by the I.O. of the place of occurrence. Ex.Ka-29 is the carbon copy of the G.D. for the entry made about the returning of SHO and depositing the six bundles containing bloodstained sheet, shawl, Pankhi, sickle and blood stained and plain clay. Ex.Ka- 30 is the carbon copy of the G.D. about the arrest of the appellant-accused and put him in the police station on 1.3.2004. Ex.Ka-31 is the carbon copy of the G.D. about the moving of Police for making the recovery at the instance of the appellant-accused. About the articles got recovered by the appellant-accused viz. bloodstained Kudal and bloodstained trouser worn by him, those articles were deposited in the police station and the entry was made in the G.D. carbon copy of which is Ex.Ka-32. Ex.Ka-33 is the entry made in the G.D. for moving of police for recovering the golden ornaments at the instance of the appellant-accused. Ex.Ka-34 is the carbon copy of the G.D. for depositing the golden items got recovered by the appellant- accused. Ex.Ka-35 is the specimen of seal about the ornaments sold by the appellant-accused to the P.W.7 Prakash Verma. Ex.Ka-36 is the arrest memo of the appellant-accused Prem Ram on 1.3.2004. Ex.Ka-39 is the statement of P.W.7 Prakash Chandra Verma recorded u/s 164 Cr.P.C. before the Judicial Magistrate, Pithoragarh on 4.3.2004. During investigation, the I.O. recorded the statements of the witnesses and on 6 completion of investigation, filed the charge sheet against the appellant-accused, i.e. Ex.Ka-38 under Sections 302/397/307 IPC. 4. After receiving the charge sheet, learned Judicial Magistrate, Pithoragarh committed the case to the court of Sessions on 07.04.2004 after giving necessary copies to the appellant/accused as provided under Section 207 Cr.P.C. 5. Learned Sessions Judge, Pithoragarh has framed the charge against the appellant/accused under Sections 302/394/307 IPC. The charges were read over and explained to appellant/accused, who pleaded not guilty and claimed to be tried. 6. To prove its case, the prosecution has examined P.W.1 Mohan Singh, complainant, P.W.2 Narendra Singh, injured, P.W.3 Prem Nath, P.W.4 Vishnu Kumar Sharma, whose residence is in front of the house where Narendra Singh was residing, P.W.5 Dr. Lalit Mohan Joshi, who medically examined the injured Narendra Singh, P.W.6 Dr. K.C. Bhatt, who conducted the post-mortem on the dead body of Lalita Devi and Jayanti Devi, P.W.7 Prakash Verma, Jeweller to whom the appellant-accused sold the golden ornaments, P.W.8 ASI Harsh Singh, who prepared Chik FIR and made entry in G.D., P.W.9 S.O. Ram Dutt Joshi, before whom the Kudal and trouser were got recovered by the appellant-accused, P.W.10 S.I. V.P. Gautam, who conducted the inquest and prepared 7 inquest report and P.W.11 S.I. Ram Dutt Joshi, who proved the charge sheet and other necessary papers prepared by S.I. Laxman Singh Bisht. 7. After that the statement of the appellant/ accused 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 and stated that he has been falsely implicated. However, he did not produce any oral or documentary evidence in defence. 8. After hearing learned counsel for the parties and appreciating the entire material available on record, the learned Sessions Judge, Pithoragarh vide judgment and order dated 20.11.2006 convicted and sentenced the appellant/accused as discussed above. Feeling aggrieved by the aforesaid judgment and order, the accused/appellant has preferred the present appeal. 9. Before any further discussion, it is pertinent to mention the ante-mortem injuries recorded in the post-mortem report (Ex.Ka-3) of Smt. Lalita Devi whose post-mortem was conducted on 27.2.2004 at 11:00 A.M., which are as under: - 1. “Lacerated wound over left side of scalp in frontal region. 8 x 4 cm bone deep just above left eyebrow extending upto left parietal bone. Left frontal parietal suture separated, clotted blood present. Brain matter coming out from the wound. Bone pieces are present. 8 2. Lacerated wound left side of scalp, 4 x 1 cm just behind the left ear pinna, clotted blood present, bone deep. Cause of death was opined Coma due to ante- mortem head injury.” It is further pertinent to mention the ante-mortem injuries recorded in the post-mortem report (Ex.Ka-4) of Smt. Jayanti Devi whose post-mortem was conducted on 27.2.2004 at 11:45 A.M., which are as under: - 1. “Incised wound over left side of forehead just above left eyebrow, 3 x 0.5 cm bone deep with sharp margins, clotted blood present. 2. Lacerated wound over the scalp 4 x 2 cm bone deep brain matter coming out, clotted blood present, 6 cm above base of nose frontal bone fractured. 3. Incised wound over left side of scalp, just behind left ear pinna bone deep with sharp margins 5 x 2.5 cm 4. Lacerated wound over the scalp, bone deep. Left parietal bone fractured, clotted blood present 8 x 1.5 cm 5. Abrasion over left side of nose 1 x .5 cm 6. Lacerated wound over left hand at the base of left little finger 2 x .5 cm clotted blood present. 9 Cause of death was opined Coma due to ante- mortem head injury.” 10. To prove the post-mortem report, the prosecution has examined P.W.6 Dr. K.C. Bhatt who has proved the above-said post mortem report Ex.Ka-3 of Smt. Lalita prepared by him whose post-mortem was conducted on 27.2.2004 at 11:00 A.M. He further stated that the deceased Smt. Lalita Devi could have died before 1½ -2 days of conducting the post-mortem and the cause of death was opined as ante-mortem head injuries. These injuries could possible to come in the intervening night of 25/26.2.2004. It was further stated that these injuries no.1 & 2 could be possible to come from the backside of the iron Kudal. 11. On the same day at 11:45 A.M., he conducted the post-mortem on the dead body of Smt. Jayanti Devi and found the above-mentioned ante- mortem injuries. In his opinion, the deceased had died before 1½-2 days. Cause of death is ante-mortem head injuries. Injury No.2 is possible to come from the backside of Kudal while the injury no.1 is possible to come by some sharp weapon like sickle. After conducting the post-mortem, he prepared the post- mortem report i.e. Ex.Ka-4. He further stated that the injuries could possibly be caused in the intervening night of 25/26.2.2004. 12. Now, it is also pertinent to mention the injuries found on the person of injured Narendra Singh 10 who was medically been examined on 26.2.2004 at 12:55 P.M. by P.W.5 Dr. Lalit Mohan Joshi and the following injuries were found in the injury report (Ex.Ka-2): - 1. “Incised wound present of left ear, 4 cm x 1 cm x 1 cm both margins are defined (Left Ears) 2. Punctured wound 2-3 cm above left eyebrow 1 cm in diameter, 0.5 cm deep pink in colour 3. Swelling in the left joint abrasion in left index finger 2 cm x 1 cm skin tag separated, pink in colour 4. Swelling in right hand Advised-X-ray skull A.P. & Lat X-ray left hand with wrist joint, A.P. & Lat” Opinion-Injuries caused by sharp and puncturing object, duration 1-2 days approximately. Opinion reserved after x-ray. 13. To prove the above-said injury report, the prosecution has examined P.W.5 Dr. Lalit Mohan Joshi who stated that on 26.2.2004 at 12:55 PM he had examined the injuries on the person of Narendra Singh and recorded the above-said injuries. In his opinion the injuries could be caused by some sharp and punctured weapon, duration of injuries was about 1- 2 days before. He further stated that these injuries could be caused on 25/26-02-04. Injury no.2 could 11 be possible to come by the point of Kudal while injury no.1 could be caused by the iron sickle. He also prepared the injury report i.e. Ex.Ka-2. 14. To further prove its case, the prosecution has examined P.W.1 Mohan Singh who stated that on 26.2.2004 he was telephonically been informed that at Bin, Pithoragarh his aunt and grandmother were murdered while his brother was seriously been injured. On this information he came at their residence and brought the injured Narendra at hospital. In the hospital, his brother Narendra informed him that the appellant-accused Prem Ram committed the murder and thereafter he could not speak. After that he gave the report at P.S. Pithoragarh by scribing it from Bhupendra Singh, i.e. Ex.Ka-1. This witness was cross- examined at length 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. 15. P.W.2 Narendra Singh, injured witness, stated that on 25.2.04 he along with his aunt Jayanti Devi and grandmother Lalita was living at the house of Tej Singh at Village Bin. Before and on that day also he was working as a driver and in that house, father of the appellant-accused namely Kamal Ram used to come and stay there and the appellant-accused also used to come there. Prior to one week of the said incident, appellant-accused Prem Ram was living at his house. On the night of incident, the appellant-accused Prem Ram slept with him in his room while his 12 grandmother and aunt used to sleep in the another room. On 26.2.04 at about 2:30 A.M., appellant- accused Prem Ram assaulted him on his head. Since it was dark he could not identified the weapon by which he was assaulted and after that he became unconscious. At 10-10:30 A.M. when he came to his senses and tried to open the door, he saw that the door was locked. Then he called his neighbourer Prem Nath (P.W.3) from the window and asked him to open the door but Prem Nath told him that the door was locked from outside. Prem Nath asked him about the blood on his face then he informed the entire incident to him. After talking with Prem Nath, he again became unconscious and on coming into senses, he found himself in the District Hospital. He further stated that his grandmother was wearing golden nose ring (Bulaki) while his aunt Jayanti Devi was wearing golden earrings and golden Guloband (an ornament worn around the neck). 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 statement. The statement of this witness is also reliable and believable. 16. P.W.3 is Prem Nath who stated that he resides along with his family at Bin Panchayat House as a tenant. In front of the Panchayat House, house of Tej Singh was there in which on 25.2.2004 Jayanti Devi, Lalita Devi and Narendra Singh were living and Kamal Ram was also living in that house. The appellant- accused Prem Ram was living prior to one week of 25.2.2004 with those persons. On 25.2.2004, the 13 appellant-accused informed that he was not feeling well and also informed him that he was going to take the medicine and also requested him to inform this fact to his father. On 25.2.2004, appellant-accused Prem Ram was washing his hands outside that house. On that day at 9:30 P.M., he went for his duty and on the way Narendra and one other person met him. He did his duty from 11 PM to 4 AM of the next day. After doing his duty, he was coming to his house then at distance of 100 meters from the house of Narendra, appellant- accused Prem Ram met him going towards the market. After reaching at his house he had slept and wake up at about 9:30 A.M. While he was sitting in his verandah, appellant-accused Narendra called him from the window to open the door. He told Narendra that the door was locked. He enquired about Prem Ram from Narendra on which Narendra told him that the appellant-accused Prem Ram was there in the night but now he is not present. Narendra was drenched with blood. He informed the incident to Pradhan who informed the police on telephone. Then police came and brought the injured Narendra out and immediately they took him to the hospital. This witness was cross- also examined at length 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 also reliable and believable. 17. P.W.4 Vishnu Kumar Sharma stated that he was having his shop at Village Bin for the last 7-8 years and he resides at Panchayat House and the injured 14 Narendra and his aunt and grandmother were residing in front of his residence. On 25.2.2004, injured Narendra Singh sat in his shop from 8-9:30 P.M. and thereafter both of them went at their respective houses. At that time, Prem Nath was going on his duty. On the next day morning at 5-6 AM, he found the door of injured Narendra Singh locked. He came to know that Narendra was got injured while his aunt and grandmother were murdered. He further stated that before the incident, Kamal Ram used to come at the house of injured Narendra. This witness was also cross- examined but he could not be shaken in his testimony. 18. P.W.7 is Prakash Verma who stated that on 26.2.2004, appellant-accused Prem Ram came at his shop and said that he was in need of money, as he had to pay the installment of his vehicle. The appellant- accused had come along with a golden Gulband, golden nose ring and a pair of golden earrings. The weight of those articles came out to be 2 Tolas and 10 Aanas (one sixteenth part) without cleaning and after cleaning it came to be 2 Tolas, 6 Aanas and 3 Rattis. He purchased those articles in Rs.16,750/-. After cleaning those articles, he melted them. The police came to him along with the arrested appellant-accused Prem Ram. Since the market was closed hence the purchased gold was kept by him at his house. On being asked, he accepted before the police that the above-said articles were purchased to him by the appellant- accused. He also informed the police that after melting, he formed those articles in the shape of 15 cut pieces. Thereafter, he gave those golden cut pieces to the police for whichi the Fard was prepared, i.e. Ex.Ka-5. He also gave his statement before the Judicial Magistrate, Pithoragarh. Those cut pieces of gold were opened in the court and the cloth in which they were sealed is Ex.1 and he also identified the pieces which he gave to the police but he could not describe about the number of total pieces. In cross-examination, the court’s observation was made that those golden cut pieces were 53 in number. 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 also reliable, natural and believable. 19. P.W.8 is ASI Harsh Singh who stated that on 26.2.2004 he was the Head Moharrir at Kotwali Pithoragarh and he prepared the Chik FIR Ex.Ka-6 on the basis of the report given by Prem Ram (Ex.Ka-1). Entry thereof was also made by him in the G.D., carbon copy of which is Ex.Ka-7. 20. P.W.9 S.O. Ram Dutt Joshi who stated that at the instance of the appellant-accused, he along with other police force and the appellant-accused had gone to make recovery. From the bushes, the appellant- accused got recovered a bloodstained Kudal and after taking the same into possession, the Fard was prepared, i.e. Ex.Ka-8. Thereafter, the appellant- accused also got recovered his bloodstained trouser worn by him at the time of incident from his in-laws house for which the Fard of recovery was also made, 16 i.e. Ex.Ka-9. After that he along with other police force went at the house of Prakash Verma to whom the appellant-accused had sold the golden ornaments. Prakash Verma also said that the ornaments sold to him by the appellant-accused viz. Guloband was 1 Tola, 13 Aana, golden earrings 6 Aana and 2 Rati; golden nose ring (Bulaki) weighed at 6 Aana 5 Ratti, in total 2 Tola and 10 Aana. After cleaning those articles, they weighed at 2 Tola and 6 Aana for which he paid Rs.16,750/- to the appellant-accused. He also informed that he melted those articles and now he could provide the gold from his house. Thereafter, Prakash Verma got recovered the gold in the form of cut pieces and when weighed, it came to 2 Tola, 6 Aana and 3 Ratti. After taking the gold into possession, specimen of seal was prepared and Fard of recovery Ex.Ka-5 was also been prepared. He also proved the site plan prepared by SHO Laxman Singh Bisht for recovery of Kudal, i.e. Ex.Ka-10. When the sealed bundle opened in the court, then a Kudal and trouser came out which were marked as Ex.2 and Ex.3 respectively. 21. P.W.10 is S.I. V.P. Gautam who stated that on 26.2.2004 he was posted as S.I. at Kotwali Pithoragarh. On that day Mohan Singh gave written report of this incident on the basis of which the case was registered. Thereafter he went on the place of occurrence and conducted the inquest. He conducted the inquest of Smt. Jayanti Devi and also prepared the other documents viz. Challan Lash, sketch of dead body, specimen of seal and letter for conducting the 17 post-mortem. The inquest report and other documents were marked as Ex.Ka-11 to Ex.Ka-15. Thereafter, he conducted the inquest of Smt. Lalita Devi and also prepared the necessary documents viz. Challan Lash, sketch of dead body, specimen of seal and letter for conducting the post-mortem. Inquest report and other documents were marked as Ex.Ka-16 to Ex.Ka-20. He also proved those documents. From the dead body of Smt. Jayanti Devi, an amount of Rs.65/- was recovered from her clothes which were handed over to Mohan Singh and for which the Fard Ex.Ka-21 was prepared. 22. P.W.11 is S.I. Ram Dutt Joshi who stated that on 26.2.2004 he was posted as Assistant S.I. at Kotwali Pithoragarh. Laxman Singh Bisht, In-charge Inspector, was the I.O. of the case but he had