IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 156 of 2006 Rumali Devi W/o Suresh Singh Pawar R/o P.S. Dev Prayag, District-Tehri Garhwal ………. Appellant Versus State of Uttaranchal ……. Respondent And Criminal Appeal No. 160 of 2006 Suresh Singh Pawar S/o Dayal Singh R/o Village Nauga, Patti-Palkot P.S. Dev Prayag, District-Tehri Garhwal ………. Appellant Versus State of Uttaranchal ……. Respondent Present : Sri Vinod Sharma, Advocate with Sri Jitendra Chaudhary present for the appellant. Sri S.S. Adhikari, learned A.G.A. present for the State/respondent. Hon’ble Prafulla C. Pant, J. Hon’ble Nirmal Yadav, J. [Oral : Praffulla C. Pant,J. ] These two appeals, preferred under section 374 of the Code of Criminal Procedure, 1973 (for short Cr.P.C.) are directed against judgment and order dated 26.05.2006 passed by learned Sessions 2 Judge, Tehri Garhwal, in Sessions Trial No.27 of 2005, whereby the said court has convicted accused/appellants Suresh Singh Panwar and Rumali Devi on the charge of offences punishable under section 302 IPC read with section 34 IPC and sentenced each one of the two to imprisonment for life, and also directed to pay fine of ` 5,000/-. Accused appellant Suresh Singh Panwar has been further convicted under section 323 IPC and sentenced to him rigorous imprisonment for a period of six months. 2. Heard learned counsel for the parties and perused the lower court record. 3. Prosecution story, in brief, is that on 09.08.2005 at about 11.00 a.m. PW-1 Mahendra Singh Payal gave a telephonic information at police station Devprayag that his son-in-law Chandra Singh Panwar has been murdered by his brother Suresh Singh Panwar (accused-appellant) and his wife Rumali Devi, in Laser Bazar. The complainant further informed to the police that two brothers had enmity due to interference in the working of Laxmi Panwar (wife of Chandra Singh Panwar) who was a Pradhan of the village. It was also informed by the complainant that the injuries were inflicted by the accused Suresh Singh Panwar, with knife on the person of Chandra Singh Panwar (deceased). On the basis of said 3 telephonic information, check report (exhibit A-14) was prepared at the police station and a crime No.746 of 2005 was registered against two accused namely Suresh Singh Panwar and his wife Rumali Devi relating to the offence punishable under section 302 IPC. Investigation was taken up PW-7 Sub Inspector Satya Pal Singh Rana. He got prepared necessary police papers at the spot, after taking into possession of the dead body of the deceased. PW-6 S.I. Puroshattam Prasad prepared inquest report (exhibit A-3) at about 12.15 hours. He further got prepared other necessary papers e.g. the sample of seal (exhibit A-4), police form No.13 (exhibit A-5), sketch of dead body (exhibit A-6) and letter to Chief Medical Officer (exhibit A-8) requesting for postmortem examination. The postmortem examination was conducted by PW- 4 Dr. R.P. Chaudhary on 10.08.2005 who prepared autopsy report (exhibit A-1). The said Medical Officer recorded three incised wounds as ante mortem injuries on the dead body and opined that cause of death of the deceased was shock as result of ante mortem injuries. After interrogating the witnesses, and inspecting the spot, Investigation Officer prepared a site plan (exhibit A-10). Further investigation was conducted by PW-9 S.I. Davendra Singh Rawat. During the investigation both accused were arrested, and knife (exhibit -1) used in the crime, was recovered on pointing out the accused Suresh Singh Panwar. The bloodstained knife, 4 bloodstained soil and bloodstained cloths were sent for chemical analysis. Forensic Science Laboratory, Agra after chemical analysis, reported that the items sent contained human blood. After completion of investigation, Investigating Officer submitted chargesheet (exhibit A-17) against accused appellants Suresh Singh Panwar and Rumali for their trial in respect of offence punishable under section 302 IPC. 4. The Chief Judicial Magistrate, Tehri Garhwal, 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. Learned Sessions Judge, on 24.10.2005 after hearing the parties, framed the charge of offences punishable under section 302 IPC read with section 34 IPC and section 323 read with section 34 IPC against two accused namely Suresh Singh Panwar and Rumali. They pleaded not guilty and claimed to be tried. On this, prosecution got examined PW-1 Mahendra Singh Payal (complainant and injured eye witness), PW-2 Shoorbir Singh (another eye witness), PW-3 Dharam Dayal Sati, PW-4 Dr. R.P. Chaudhary who conducted postmortem examination on dead body of Chandra Singh Panwar, PW-5 Dr. S.D. Uniyal who recorded injuries on the person of Mahendra Singh (PW-1) at Narendra Nagar, PW-6 S.I. Puroshattam Prasad who prepared the inquest report and other necessary papers, PW-7 S.I. Satya Pal Singh 5 Rana who started the investigation, PW-8 Head Constable Dalpati Lal Sharma who prepared the check report (exhibit A-14) on the basis of telephonic information, and made necessary entry in the General Diary (exhibit A-13), and PW-9 S.I. Devendra Singh Rawat who completed the investigation. 5. The oral and documentary evidence was put to the accused under section 313 Cr.P.C. in reply to which they only admitted their relationship with the deceased but disputed the other evidence as false. In defence DW-1 Anil Kumar Uniyal, Chief Pharmacist of Joint Hospital, Boradi, was got examined. The trial court after hearing the parties found that both the accused Suresh Singh Panwar and his wife Rumali guilty of charge of offences punishable under section 302 IPC read with section 34 IPC. Accused Suresh Singh Panwar was further found guilty on the charge of offence punishable under section 323 IPC. After hearing on sentence, the trial court sentenced each of the convicts to imprisonment for life and directed to pay fine of ` 5,000/- under section 302 IPC read with section 34 IPC. Convict Suresh Singh Panwar was further sentenced rigorous imprisonment for a period of six months under section 323 IPC. Aggrieved by the said judgment and order dated 26.05.2006 passed by Sessions Judge, Tehri Garhwal in Sessions trial No.27/2005. These two appeals are preferred by convicts, separately. 6 6. Before further discussions, we think it just and proper to mention the ante mortem injuries found on the dead body of the deceased by PW-4 Dr. R.P. Chaudhary at the time of postmortem examination who prepared autopsy report (exhibit A-1). Three ante mortem injuries recorded in said report are being reproduced below :- 1. An oblique muscle wound present anterior aspect of chest just lateral right, margins of sternum at the level of nipple, oblique in direction, measuring 5cm x 2.5 cm deep till cavity (thoracic). 2. An oblique incised wound at left hypochondria just below the 10th Rib, 14cm away from umbilicus at 2 o’clock position, measuring 3cm x 1.5 cm x deep to abdominal cavity. 3. An incised wound present over right gluteus region of hip, corresponding to right posterior iliac spine measuring 3cm x 1.5 cm x muscle deep. On internal examination, the Right lung was found lacerated. The Right chamber of heart contained clotted blood. Peritoneum was also found lacerated. Spleen was also found lacerated. In the opinion of Medical Officer, cause of death was shock 7 as a result of ante mortem injuries. This report clearly establishes that Chandra Singh Panwar was murdered. Now the question as to whether the accused appellants Suresh Singh Panwar and his wife Rumali Devi, with common intention committed murder of the Chandra Singh Panwar or not, is to be examined by this Court. 7. PW-1 Mahendra Singh (complainant and injured eyewitness) has stated that he is father-in-law of the deceased. He has further stated that accused Suresh Singh Panwar is brother of the deceased. The witness narrates that on 09.08.2005 he was in Laser Bazar when his daughter told him that accused Suresh Singh Panwar and his brother Chandra Singh Panwar (deceased) are quarrelling. On hearing this, he went towards the place where two were fighting. PW-1 Mahendra Singh further narrates that he saw that Chandra Singh Panwar and Suresh Singh Panwar grappling with each other, whereafter Chandra Singh Panwar tried to flee but he was stopped by Rumali Devi in the field of Ramlal, and accused Suresh Singh Panwar gave knife blows on the person of Chandra Singh Panwar. This witness has further stated that motive behind the commission of crime was that his daughter Laxmi Panwar was Village’s Pradhan and her brother-in-law accused Suresh Singh Panwar wanted interference in her working and she did not oblige. The witness has further stated that after the 8 incident, when accused Suresh Singh Panwar started fleeing, he (PW-1) made an attempt to stop him but he was also assaulted with a piece of wood on his head, by the accused. 8. The statement of PW-5 Dr. S.D. Uniyal, who examined the injury on person of Mahendra Singh Payal (PW-1) on 09.08.2005 and prepared injury report (exhibit A-2), corroborates the testimony of PW-1 Mahendra Singh that he suffered injuries on the head. Injury mentioned in exhibit A-2, suffered by Mahendra Singh, is reproduced below :- (i) One lacerated injury present over top of scalp along with midline 15cm from right external ear measuring 6.5cm x 0.5cm x scalp deep, margins irregular, uneven, dry blood clot present over and around the wound margin, no sign of inflammation present. In the opinion of Medical Officer, the injury suffered by PW-1 Mahendra Singh Payal was simple in nature and caused by some blunt object. 9. Not only the medical evidence mentioned above adduced by PW-5 Dr. S.D. Uniyal corroborates the statement of PW-1 Mahendra Singh, but PW-2 Shoorbir Singh, and PW-3 Dharam Dayal Sati who 9 are local residents/shopkeepers of Laser Bazar, also corroborate the testimony of the complainant. Both of them have corroborated the fact that deceased Chandra Singh Panwar and accused Suresh Singh Panwar were grappling with each other whereafter Chandra Singh Panwar made attempt to flee to same himself but stopped by Rumali Devi, whereafter Suresh Singh Panwar inflicted knife blows on the person of the deceased. The testimony of three eyewitnesses is natural and trustworthy. They have been subjected to lengthy cross examination but nothing has come out which shakes to truthfulness of the prosecution story narrated by them. 10. On behalf of the appellant, it is argued that accused Suresh Singh Panwar had also suffered an injury but prosecution has not explained the same as such since the prosecution has not been come up with a true story, the appellants are entitled to benefit reasonable doubt as to the truthfulness of the prosecution story. On examination of the evidence on record, we find, it is not established on the record that accused Suresh Singh Panwar has actually suffered injury as pleaded by him. DW-1 Chief Pharmacist Anil Kumar Uniyal has not proved any injury report placed on record. Apart from this, it is settled principle of law that prosecution is not required to explain each and every injury of the accused. It is only when accused has suffered injury at 10 the time of incident which is not superficial in nature. Assuming for a movement that accused Suresh Singh Panwar had suffered some injury, all three eye witnesses have stated that before accused Suresh Singh Panwar gave knife blows on the person of the Chandra Singh Panwar, the two were grappling in the field. As such it can not be said that there is no explanation as to any injury suffered by the Suresh Singh Panwar. 11. Next argument advanced on behalf of the appellant is that PW-1 Mahendra Singh Payal did not get himself medically examined in Laser Bazar and went to Narendranagar to get himself medically examined. It is contented on its basis that the presence of PW-1 Mahendra Singh Payal appears to be doubtful in Laser Bazar. We are unable to accept the contention advanced on behalf of the appellant for the simple reason that it has not come on record that any Medical Officer was posted or available at Laser Bazar where Mahendra Singh could have got his injuries examined. The presence of PW-1 Mahendra Singh at Laser Bazar gets corroborated from the injuries suffered by him and recorded by PW-5 Dr. S.D. Uniyal. 12. However, as far as the role of appellant Rumali is concerned, we are in agreement with learned counsel for the appellants that the prosecution has 11 not sufficiently proved that she had common intention with her husband Suresh Singh Panwar in committing murder of Chandra Singh Panwar, by him. There appears no prior meeting of minds between appellants Suresh Singh Panwar and Rumali Devi before the deceased was murdered. It is stated by witnesses that in Ramlal’s field appellant Rumali Devi caught hold the neck of the deceased and stopped him from running away. Since the height of Rumali Devi as stated by PW-3 Dharam Dayal Sati was only 4 ft. while that of the deceased was 6ft. as such it appears unconvincing that Rumali Devi had been able to catch hold of the deceased by his neck. The investigating officer (PW-7) S.I. Satya Pal Singh Rana in his cross examination states that Mahendra Singh had told him that after Suresh Singh Panwar freed himself and went towards Ramlal’s field, Chandra Singh Panwar chased him. This witness further states that PW-1 Mahendra Singh Payal did not tell the Investigating Officer that Rumali Devi had caught hold by neck of the deceased. In the circumstances, we are of the view that it can not be said that prosecution has successfully proved charge as against appellant/accused Rumali Devi that she had common intention to commit the murder with her husband Suresh Singh Panwar. 13. For the reasons as discussed above, we are of the view that while the prosecution has successfully 12 proved the charge of the offences punishable under section 302 IPC and that of one punishable under section 323 IPC as against appellant accused Suresh Singh Panwar, no charge is proved beyond reasonable doubt as against accused appellant Rumali Devi. Accordingly, Criminal Appeal No.156 of 2006 filed by Rumali Devi deserves to be allowed but Criminal appeal No. 160 of 2006 filed on behalf of accused appellant Suresh Singh Panwar is liable to be dismissed. We upheld the conviction and sentence recorded by trial court against accused appellant Suresh Singh Panwar, but set aside the conviction and sentence recorded against accused/appellant Rumali Devi. She is on bail, she need not surrender. Her sureties are discharged. Accessed appellant Suresh Singh Panwar is reported to be in jail. Let a copy of this judgment be sent to Superintendent concerned jail. Lower court record be sent back. (Nirmal Yadav, J.) (Prafulla C. Pant, J.) JKJ 17.09.2010