Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 634 of 2001 (Old No.321 of 1997) Chhaila Singh son of Khub Chand Resident of Chandrapuri Police Station Manglaur District Haridwar …Appellant Versus State …Respondent Mr. Vinod Sharma, Advocate for the appellant Mr. S.S. Adhikari, A.G.A. for the respondent Hon’ble B.C. Kandpal, J. Hon’ble Nirmal Yadav, J. Delivered by Hon’ble B.C. Kandpal, J. This appeal, preferred under Section 374 of Cr.P.C., is directed against the judgment and order dated 8.1.1997 passed by IInd Additional Sessions Judge, Haridwar in Sessions Trial No. 217 of 1996 convicting the appellant under Section 302 I.P.C. and 201 I.P.C. and sentencing him for life imprisonment and three years’ rigorous imprisonment respectively. 2- Prosecution story in brief is that complainant Babu Singh (PW-1) had three brothers, out of them Khub Chand is the father of accused Chhaila Singh and he is the eldest brother of the complainant. Complainant Babu Singh is the father of the deceased Ranveer Singh aged 7 years, whose mother (first wife of the complainant) had gone somewhere on account of her mental disorder, therefore complainant got married secondly to 2 Parvati (PW-2). There was no issue out of wedlock of Parvati also and she loved much with Ranveer. Complainant Babu Singh had 25 bighas of land in his share and after his death the only heir of this land was the deceased Ranveer. On 28.1.1996 Babu Singh had gone to Raighat and his wife and son Ranveer were at the house. Deceased Ranveer had gone in Gher with Chhaila Singh and at 1.00 p.m. in the day he had come back to the house and told Parvati that Chhaila Singh had asked for the radio. After taking radio from Parvati, Ranveer had gone in Gher, at that time he was wearing pyjama, white shirt and brown full-sleeve sweater. In the evening accused Chhaila Singh taken Ranveer to the shop of Roopram and got eggs and pakaude eaten to Ranveer and they had returned back to Gher after taking some pakaude. After some time when Parvati had gone to Gher, Chhaila Singh and Ranveer were eating eggs and pakaude. Thereafter Parvati (PW-2) had returned back to her house and in the evening at about 5-6 p.m. when deceased did not reach at the house she had gone to the house of Chhaila Singh, where accused told her that deceased would have been playing somewhere in the village. Thereafter, PW-2 Parvati started search of the deceased, but he was not traced out. On 23.2.1996 when PW-2 Parvati had gone to answer a call of nature in the sugarcane field of Padam Singh where she saw sweater, shirt of the deceased Ranveer lying over there. She also saw bones and skull lying near the shirt. The clothes were identified by PW-2 Parvati. 3- Complainant Babu Singh (PW-1) got the report written by Chhatarpal, on the basis of which Chick 3 No.4196 was prepared vide Ext.Ka.2 at 2.00 p.m. on 23.2.1996 and vide G.D. No.14 Ext.Ka.3, Case Crime No.4/40 of 1996 was registered against the accused Chhaila Singh under Sections 364,302, 201 I.P.C. and investigation of the case was entrusted to S.O. Ishwar Dutt Joshi. The investigating officer inspected the place of occurrence; took in his possession skeleton and clothes which were identified by Parvati, prepared inquest report of Skeleton and bones vide Ext.Ka.6 and sent the same for post-mortem examination. Thereafter, the investigating officer prepared the sample seal vide Ext.Ka.7, photo lash vide Ext.Ka.8, Challan lash vide Ext. Ka.9, report to C.M.O. vide Ext.Ka.10. The recovery memo of clothes was prepared vide Ext.Ka.13. The site plan of place of occurrence was prepared vide Ext.Ka.14 and statement of the witnesses were recorded and accused Chhaila Singh was searched but he was not traced out. On 24.2.96 accused was arrested near bridge while he was coming towards Chandapuri and he was interrogated. Thereafter, on pointing out of accused gandasa used in the commission of crime, torn clothes, torso and ribs of the deceased were recovered. The investigating officer prepared the recovery memo of torn clothes of the deceased vide Ext.Ka.15 and prepared the inquest report of the ribs and also prepared photo lash, sample seal, challan lash, report to C.M.O. vide Ext.Ka.16, Ext.Ka.17, Ext.Ka.18, Ext.Ka.19 and Ext.Ka.20. The investigating officer after completing all the formalities of the investigation submitted charge sheet against the accused vide Ext.Ka.22 and sent the bloodstained articles (clothes, bones and weapon) for chemical 4 examination, where it was found that the same contained human blood. 4- The Judicial Magistrate, Roorkee, District Haridwar on receipt of the charge sheet after giving necessary copies to the accused as required under Section 207 of Cr.P.C., appears to have committed the case to the court of Sessions for trial. The learned Sessions Judge after hearing the parties framed charges of offence punishable under Sections 302 and 201 I.P.C. against the accused and sentenced him for life imprisonment and three years’ rigorous imprisonment respectively. The accused pleaded not guilty and claimed to be tried. 5- The prosecution in order to bring home guilt against the accused persons got examined as many as eight witnesses in the case. PW-1 Baboo Ram is the complainant. PW-2 Parvati is the wife of the complainant and is the mother of the deceased. PW- 3 Nathua Singh is the witness of the conduct of the accused after the incident. PW-4 Roopram is the hostile witness. PW-5 Balveer Singh is the witness in whose presence bones and clothes were recovered. PW-6 Constable Vijay Singh is the prosecution witness who proved Chick F.I.R. and G.D. as Ext.Ka.2 and Ext.Ka.3 respectively. PW-7 Dr. O.P. Sharma is the doctor who has medically examined the bones of the deceased. PW-8 S.O. Ishwar Dutt Joshi is the investigating officer of the case, who submitted the charge sheet against the accused. 6- The accused/appellant in his statement under Section 313 Cr.P.C. denied the prosecution case 5 and alleged that he has falsely been implicated in the case. However, the accused did not adduce any defence witness in his defence. 7- The trial court having considered the entire evidence on record and hearing learned counsel for the parties found the accused/appellant guilty of charges of offence punishable under Section 302 and 201 I.P.C. After hearing on sentence, the trial court sentenced the accused/appellant as aforesaid, vide judgment and order dated 8.1.1997. Both the sentences were directed to be run concurrently. However, the accused/appellant was acquitted of the charge under Section 364 I.P.C. 8- Feeling aggrieved by the aforesaid impugned judgment and order, the accused/appellant has preferred the present appeal which has been placed before us for disposal. 9- We have heard Sri Vinod Sharma, learned counsel for the appellant, Sri S.S. Adhikari, learned A.G.A. for the State/respondent and perused the record. 10- Before further discussion, it is pertinent to mention that the post-mortem examination on the dead body of the deceased was conducted by PW-7 Dr. O.P. Sharma on 24.2.1996 at 1.00 p.m. PW-7 had preserved following parts of the dead body: (i) Complete skull with 12 upper teeth (ii) Pubic bone complete with right hip joint (iii) Left femer (upper 3/4th) 6 In the opinion of the doctor, bones are of a child aged below 12 years. On the same day at 4.30 p.m. a small sealed packet was examined and following opinion was given by the doctor: (i) Bones (ribs) are of human being. (ii) Bones are of same individual (iii) Bones are of a child. Opinion about exact age could not be given. (iv) Cause of death could not be ascertained. 11- The evidence of PW-7 Dr. O.P. Sharma read with autopsy report (Ext.Ka.4 and Ext.Ka.5) establishes on record that deceased died an unnatural death. 12- Now, this Court has to see whether the prosecution has successfully proved that deceased Ranveer was murdered by accused Chhailaa Singh, as held by the trial court. It is pertinent to mention here that it is a case of circumstantial evidence as no eyewitness of occurrence is there in the present case. 13- The first circumstance which has been relied upon by the prosecution against the accused/appellant is the motive. In support of the first circumstance, the prosecution has adduced the evidence of PW-1 Baboo Singh, who has stated in his evidence that accused Chhaila Singh wanted to grab his land and therefore he used to come at his house. In his cross-examination this witness has stated that he has three brothers. The eldest 7 brother has three children. The elder brother had become hermit. The only son of the witness was the deceased, whose name was Ranveer. Thus, the evidence of this witness clearly shows that the land in the share of elder brother was divided into the share of Baboo Singh and Chhaila Singh and after the death of Baboo Singh the land in his share would go to the share of the deceased. Therefore, the accused had grudge against the deceased. 14- PW-2 Parvati, stepmother of the deceased, has stated that accused Chhaila Singh wanted to grab her land. In the cross-examination this witness has stated that accused Chhaila Singh was taking meals at her house for three years. She also stated that accused himself has confessed that he killed the deceased on account of land dispute. She had not asked the accused to live separately, rather he himself used to live separately after being annoyed, only three days before the incident. Above statement of PW-1 Baboo Singh gets corroboration from the statement of PW-2 Parvati who has narrated the prosecution story in the same manner. Therefore, we are of the view that there is strong motive against the accused/appellant to eliminate the deceased as the deceased would have been the only person, who had to succeed the land after the death of his father Baboo Singh. 15- The next circumstance is the last seen evidence of accused in the company of the deceased on the date of incident. PW-2 Parvati has stated in her evidence that her husband had gone to Rampur Raighati on Sunday in the last week of January. His son (deceased) had gone at Ghair near Chhaila 8 Singh and at about 1.00 p.m. he had come to the house and told his mother that Chhaila Singh had asked for the radio, then she had given the radio to the deceased. At that time, her son was wearing dusty pyjama, white shirt and full-sleeve brown sweater. This witness has further stated that in the evening accused Chhaila Singh had taken her son at the shop of Roopram and thereafter accused along with the deceased went to the house. This witness has stated that after some time when she had gone to the house of the accused she saw deceased and accused were eating pakaude and thereafter she had returned back to her house. In the evening at 5-6 p.m. when she had gone to call her son in the house of Chhaila Singh, he told her that her son would have been playing in the village. In her cross-examination this witness has stated that accused had asked for radio from the deceased and at 1.00 p.m. in the afternoon her son had gone with radio and thereafter he did not come back. Therefore, the prosecution has been successful in establishing the circumstance of last seen in the company of the accused. 16- The next circumstance which has been relied by the prosecution is the recovery of bones and clothes. PW-2 Parvati has stated in her evidence that on 23.2.1996 when she had gone to answer a call of nature in the sugarcane field of Padam Singh, where she saw sweater, shirt of her son Ranveer. She also saw bones and skull lying near the shirt. This witness has also stated that the clothes were identified by her and thereafter she told to her husband, who lodged the F.I.R. to the police and thereafter PW-8 Ishwar Dutt Joshi investigating 9 officer has taken in his possession the said articles, vide recovery memo (Ext.Ka.13) in the presence of the witnesses. This circumstance also stands proved. 17- The next circumstance is the recovery of gandasa used in the commission of crime. PW-8 Ishwar Dutt Joshi, has stated that during investigation, he recovered gandasa used in the crime on pointing out of the accused/appellant. Recovery memo (Ext.Ka.15) was prepared for recovery of the gandasa. This recovery has also been proved by PW-1 Baboo Singh and PW-5 Balveer, in whose presence the accused got recovered the gandasa. 18- The next circumstance is the report of the Forensic Science Laboratory (Ext.Ka.25) regarding bloodstained articles. The report, which is on record, shows that articles 1 to 6, namely, gandasa, sweater, shirt, piece of cloth, skull and bones contained blood. The Forensic expert further opined that articles 4 to 6, namely, piece of cloth, skull and bones were having stains of human blood. Gandasa, sweater and shirt were having disintegrated stains of blood. Thus, it is quite clear the articles sent for analysis, were having blood stains and the gandasa which was recovered at the pointing out of accused was used in the commission of crime. 19- Further, from the post mortem report it has become quite clear that death of the deceased was not natural. PW-7 Dr. O.P. Sharma, who prepared the autopsy report after post-mortem examination 10 of the deceased opined that recovered bones are of a boy having eight years of age; while according to the prosecution the age of the deceased Ranveer was seven years. The medical officer PW-7 has not been cross examined and this fact corroborates the prosecution case. 20- The last and important circumstance is the conduct of the accused. PW-2 Parvati has stated in her evidence that when Ranveer (deceased) did not reach to her house, she went to the house of accused Chhaila Singh, then accused told her that Ranveer would have been playing somewhere in the village. At that time accused was in intoxicated state and he told her that he does not know about her son and he did not go with her for searching the deceased. PW-2 has further stated that accused Chhaila Singh kept on taking liquor on second day also. This conduct connects the accused/appellant to the guilt of the murder of the deceased. In this way, the chain of circumstances brought on record is complete which point towards the guilt of accused and none else. 21- Therefore, the above chain of circumstances, brought on record, clearly establishes charges of offence punishable under Section 302 and 201 I.P.C. against accused/appellant Chhaila Singh that he committed murder of deceased Ranveer. Therefore, we concur with the finding of the trial court that the prosecution has been successful in proving the charge against the accused/appellant Chhaila Singh beyond any reasonable doubt. 22- For the reasons stated above, this appeal has 11 no force. The appeal is liable to be dismissed. The appeal is dismissed. Conviction and sentence awarded against appellant Chhaila Singh by the trial court are affirmed. The appellant is on bail. His bail bonds are cancelled and sureties discharged. He shall be taken into custody forthwith to serve out the sentence awarded by the trial court. 23- Let the record be transmitted to the trial court for compliance to be reported to this Court within two months. (Nirmal Yadav, J.) (B.C. Kandpal, J.) March 10, 2010 SP