IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 1504 of 2001 (Old No. 456 of 1999) Jai Ram Reddy Son of Kundal Reddy @ Baddham Reddy, H/o Village Ram Nagar, P.S. Thekpal, District Medhak (Andhra Pradesh) at present resident of Sarvahara Nagar Rishikesh, P.S. Rishikesh, district Dehradun. ………. Appellant Versus State of U.P. (Now State of Uttarakhand) ……. Respondent Present : Sri Vinod Sharma, Advocate (Amicus Curiae) present for the appellant. Sri S.S. Adhikari, learned A.G.A. with Sri B.S. Parihar, Brief holder present for the State/respondent. Hon’ble Prafulla C. Pant, J. Hon’ble Nirmal Yadav, J. [Oral : Hon’ble Praffulla C. Pant,J. ] This appeal, preferred under section 374 of the Code of Criminal Procedure, 1973 (for short Cr.P.C.) is directed against judgment and order dated 27.02.1999/03.03.1999 passed by 1st Additional Sessions Judge, Dehradun in Sessions Trial No.299 of 1995, whereby the said court has convicted accused/appellant Jai Ram Reddy of the charge of offence punishable under section 302 of Indian Penal Code, 1860 (for short I.P.C.) and sentenced him to imprisonment for life, and further directed him to pay 2 a fine of Rs.5,000/-, in default of payment of fine, convict was directed to further undergo six months rigorous imprisonment. 2. Heard learned counsel for the parties and perused the lower court record. 3. Prosecution case is that Vishna Devi (deceased) had earlier got married to one Khem Babu whereafter she left her and started living with her brother-in-law Shiv Charan. She had a quarrel with him also, and finally she started living with accused appellant Jai Ram Reddy. Vishna Devi had a daughter through Shiv Charan. After staying with Jai Ram Reddy for about 3-4 years, Vishna Devi had a quarrel with him also and came to her mother’s house. On the date of incident i.e. 20.08.1995, at about noon, Jai Ram Reddy sent a message to Vishna Devi to come back. PW-1 Prem Bahadur and PW-3 Poonam (sister of the deceased), accompanied Vishna Devi. When the three reached the house of accused appellant Jai Ram Reddy, he hurled abuses at Vishna Devi and alleged that she is living an unchaste life. This made both of them quarrel and accused appellant Jai Ram Reddy took up ‘PATAL’ (a heavy sharp edged weapon) and mercilessly started giving blows on the person of Vishna Devi. Poonam raised alarm on which neighbour (PW-6) Smt. Sunita and two constable namely PW-5 Sanjay and one constable Yash Veer, came to the spot. The police constables intervened and arrested Jai Ram Reddy at the spot with blood stained weapon (PATAL). He was taken to the reporting to police out post I.D.P.L. within the limits of police station Rishikesh where PW-1 Prem Bahadur (brother-in-law of the deceased) lodged first information report (Ex A-2) against accused Jai Ram Reddy at about 13.10 hours (within 40 minutes of the 3 incident). On the basis of said report, out post crime No.68/95 (Police Station Crime No.507/95) relating to the offence punishable under section 302 IPC was registered. Inspector Narendra Pal Singh (PW-11) investigated the crime. The dead body of the deceased was taken into custody by the police on the very day i.e. 20.08.1995 and inquest report (exhibit A-3) was prepared alongwith sketch of dead body (exhibit A-12), police form No.13 (exhibit A-13), sample seal (exhibit A-14) and letter of Chief Medical Officer (exhibit A-15) requesting him for postmortem examination. PW-2 Dr. M.M. Dhaundiyal conducted postmortem examination on the dead body of Vishna Devi on 21.08.1995 at 04.00 p.m., and prepared autopsy report (exhibit A-1). He recorded as many as 10 incised wounds and one lacerated wound found on the dead body of the deceased. Medical Officer opined that cause of death was shock and haemorrhage due to ante mortem injuries and suffered by the deceased. After interrogating the witnesses, and inspecting the spot, Investigating Officer submitted charge sheet (exhibit A-18) against accused Jai Ram Reddy for his trial in respect of offence punishable under section 302 IPC 4. The Chief Judicial Magistrate, Dehradun on receipt of the chargesheet, after giving necessary copies to the accused as required under section 207 of Cr.P.C., committed the case to the court of Sessions for trial. On 16.02.1996 1st Additional Sessions Judge, Dehradun to whom the case was transferred, after hearing the parties, framed the charge of offence punishable under section 302 IPC against accused Jai Ram Reddy to which accused pleaded not guilty and claimed to be tried. On this, prosecution got examined PW-1 Prem Bahadur (complainant), PW-2 Dr. M.M. Dhaundhiyal who conducted 4 the postmortem examination, PW-3 Km. Poonam (sister of the deceased and eye witness), PW-4 Yadu Nath Sharma (witness of inquest report), PW-5 Constable Sanjay (eye witness who apprehended the accused at the spot), PW-6 Smt. Sunina (another eye witness), PW-7 Punit Prasad Badola (who scribed the chick report and also made necessary entry in the General Diary), PW-8 Constable Narendra Singh who took the dead body in a sealed condition for postmortem examination, PW-9 Tej Bahadur (another witness of inquest report), PW-10 Sub Inspector Ram Pal Yadav, PW-11 Inspector Narendra Pal Singh (Investigating Officer), PW-12 Constable Shree Pal Singh, and PW-13 Dinesh Narain Sharma (An officer of Forensic Science Laboratory, Agra). 5. The oral and documentary evidence was put to the accused under section 313 of Cr.P.C. in reply to which he admitted that Vishna Devi (deceased) used to live with him for four years. Rest of the allegations were not admitted by him. He pleaded that on the day of incident, he had gone for the work and when he came back, he found that police had already reached in his house who took him in the custody. In defence DW-1 Dr. D.K. Sharma was got examined who proved that there was a simple incised wound on the right thumb of the accused who was examined by him on 20.08.1995. After hearing learned counsel for the parties, the trial court found that prosecution has successfully proved the charge of offence punishable under section 302 IPC against accused appellant Jai Ram Reddy and convicted him accordingly on 27.02.1999. Thereafter the trial court sentenced the convict to imprisonment for life and directed him to pay a fine of Rs.5,000/- under section 302 IPC vide 5 his order dated 03.03.1999. Aggrieved of the said order passed by 1st Additional Sessions Judge, Dehradun in sessions trial No.299 of 1995, this appeal was filed before the Allahabad High Court on 10.03.1999 where it was admitted on 11.03.1999. The appeal is received by this Court under section 35 of U.P. Re-organization Act, 2000 (Central Act No. 29 of 2000) for its disposal. 6. Before further discussions, we think it just and proper to mention the ante mortem injuries recorded by PW-2 Dr. M.M. Dhaundiyal who conducted postmortem examination on dead body of Vishna Devi on 21.8.1995 at 04.00 p.m. The following are the ante mortem injuries recorded in autopsy report (exhibit A-2) by the Medical Officer:- 1. Incised wound 4 cm x 1.5 cm x bone deep, L shaped on the dorsum of left hand, 1.5 cm. from left wrist, transverse in direction. Blood clots are present in and around the wound. 2. Incised wound 6 x 1.5 cm x bone deep on the dorsum of the left hand extending from the web between left nail and middle finger to injury No.1. Blood clots are present in and around the wound. 3. Lacerated wound 3cm x 0.5 cm x bone deep with traumatic amputation of terminal phalynx of left middle finger. Blood clots are present in and around the wound. 4. Incised wound 5cm x 0.5 cm x brain deep on right side head, 0.5 cm above the hair line, 2cm. above the lateral part of right eye brow, vertically placed. Blood clots are present in and around the wound. 6 5. Incised wound 16 cm. x 2 cm x bone deep extending from 0.5 cm. anterior to right ear to left side of face, 4 cm. anterior to left ear. Blood clots are present in and around the wound. The injury has cut the mandible and the maxilla bones on right side. 6. Incised wound 17 cm x 3 cm x spine deep on right lateral aspect of neck extending to front aspect. Blood vessels and other structures are cut through and through under it. Vertebra corresponding to it also cut. The Trachea and Oesophagus also cut through and through. Blood clots are present in and around the wound. 7. Incised wound 10 cm x 2 cm x oral cavity deep on left side of face extending from 5 cm anterior to left ear to the middle of chin. Blood clots are present in and around the wound. 8. Incised wound 7cm x 1cm x bone deep on right lateral aspect of neck extending to the mid lines, 4cm. below injury No.6. Blood clots are present in and around the wound. Blood vessels and other structures are all cut. 9. Incised wound 4 cm x 0.5 cm x muscle deep on the right side of neck, 1 cm. below injury No.6. Blood clots are present in and around the wound. 10. Incised wound 5cm x 0.5 cm x bone deep on the palmar aspect of right thumb from its base to the terminal phalynx. Blood clots are present in and around the wound. 11. Incised wound 2.5 cm x ½ cm x muscle deep on the right side of the posterior aspect of neck, 0.5 cm above the hair line. 1 cm lateral to the mid 7 line. Blood clots are present in and around the wound. On internal examination, the Medical Officer found frontal bone fractured corresponding to injury no. 4 (under ante mortem injury), membranes were found cut corresponding to injury no. 4. Vartibra were also cut corresponding to injury no. 6. The Medical Officer at the end of his report (Ex. A-1) observed that cause of death of the deceased were shock and hemorrhage due to ante mortem injury. The evidence adduced by PW-2 Dr. M.M. Dhaundiyal read with Autopsy report (Ex. A-1) establishes it on the record that Vishna Devi had died a homicidal death. Now this Court has to see whether accused Jai Ram Reddy has committed murder of Vishna Devi or not. 7. PW-1 Prem Bahadur (complainant) has stated that Vishna Devi was her sister-in-law who got married to one Khem Babu. Since Khem Babu had left her, she started living with her elder brother-in-law Shiv Charan where she lived for 8-10 years, and had a daughter Asha Devi from him. Thereafter she had a quarrel with him also and started living with accused Jai Ram Reddy with whom she lived for some four years. The witness further states that Vishna Devi had some quarrel with Jai Ram Reddy also and came back to her mother’s house. On the day of incident, according to this witness, accused Jai Ram Reddy sent a message through one little girl calling Vishna Devi to come back to his house. PW-1 Prem Bahadur further states that he took Vishna Devi to Jai Ram Reddy’s house. His wife Kamla and his sister-in-law Poonam also accompanied them so that the dispute between Vishna Devi and Jai Ram Reddy may be settled. According to this witness, at about noon (on 20th August 1995) they reached to the house of Jai Ram Reddy. He (Jai Ram Reddy) 8 started hurling abuses at Vishna Devi and called her a prostitute. He took her by taking grip on her hairs. This made the two quarrel with each other. On this accused Jai Ram Reddy took ‘PATAL’ (a heavy sharp edged weapon) and gave a blow on the neck of Vishna Devi. He killed her by giving blow after blow. He asked this witness and others not to dare to intervene. PW-1 Prem Bahadur further states that thereafter when alarm raised, two police constables who were on patrolling duty reached at the spot and apprehended Jai Ram Reddy with ‘PATAL’, at the spot. The witness further stated that he gave an oral report at the police out post IDPL, of the incident. 8. PW-3 Poonam, sister of the deceased has also narrated the same prosecution story as narrated by PW-1 Prem Bahadur, and corroborated his statement. Not only she, PW-5 constable Sanjay, who reached at the spot after Poonam raised alarm, and PW-6 Smt. Sunita, a neighbour of the accused also corroborated the prosecution story. 9. The evidence of the eyewitnesses mentioned above is natural and trustworthy. It is a case of daylight incident. The first information report is prompt. Apart from this what is most important in the present case is that the accused was apprehended at the spot with ‘PATAL’ after two constables who were on patrolling duty reached at the spot. The eyewitness account given by the witnesses is further corroborated by the medical evidence already discussed above. 10. In the above circumstances, this Court is in full agreement with the finding recorded by the trial court that the prosecution has successfully proved charge of offence 9 punishable under Section 302 IPC against accused Jai Ram Reddy. 11. The learned amicus curiae for the appellant argued that the prosecution did not examine the girl who is said to have been sent to Vishna Devi to call her come back to of the house of Jai Ram Reddy. In our opinion non-examination of the girl who is said to have been sent by Jai Ram Reddy to call Vishna Devi back to his house, does not shake the truthfulness of the prosecution story for the reason that in that case only this can be assumed that Vishna Devi along with eyewitnesses PW-1 Prem Bahadur and PW-3 Poonam had gone to the house of Jai Ram Reddy, from her mother’s house of her own, but what had happened in their presence in the house of Jai Ram Reddy is clearly proved on the record. 12. On behalf of the appellant our attention is drawn to the statement of DW-1 Dr. D.K. Sharma, who found that Jai Ram Reddy (accused) had suffered an incised wound of the size 2 c.m. x 0.5 c.m. x muscle deep on the right thumb on 20th August 1995, has not been explained by the prosecution. We have carefully gone through the statement of DW-1 Dr. D.K. Sharma, and found that the injury is simple in nature, and as the accused is said to have been hitting with a sharp edged weapon on the person of Vishna Devi, it is quite possible that in the process he might got small cut wound on his thumb. 13. Lastly it is pleaded on behalf of the appellant that it is a case covered under Section 304 IPC and not the one punishable under Section 302 IPC. Had there been a single blow given by the appellant, it could be said that the case gets covered under Section 304 IPC. But in the present case, there are as many as ten incised wounds and one lacerated wound, 10 suffered by the deceased. The nature of offence is so brutal that we cannot hold that the charge proved against accused/appellant Jai Ram Reddy is covered under Section 304 IPC. We agree with the view taken by the trial court that charge of offence punishable under Section 302 IPC is fully proved against accused/appellant Jai Ram Reddy, beyond reasonable doubt. We do not find any reason to interfere with the sentence awarded by the trial court. 14. For the reasons as discussed above, this appeal is liable to be dismissed. The same is accordingly dismissed. The conviction and sentence recorded by First Additional Sessions Judge, Dehradun vide his judgment and order dated 27.02.1999/03.03.1999 passed in Sessions Trial No. 299 of 1995, is hereby affirmed. Accused/appellant Jai Ram Reddy is on bail. His bail is cancelled. The Registry is directed to send back the lower court record of the case to the trial court, to make appellant Jai Ram Reddy serve out the remaining part of sentence awarded by the trial court. (Nirmal Yadav, J.) (Prafulla C. Pant, J.) VKG 06.09.2010