1 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 968 of 2001 Fakeer Ram S/o Shri Hari Ram R/o Village Khitolee Police Barinag District Pithoragarh .............….Appellant Versus State of Uttaranchal (Now State of Uttarakhand) …..................Respondent Shri Prabhakar Joshi, Advocate, present for the appellant Shri Amit Bhatt, A.G.A, present for the State. Coram: Hon’ble Prafulla C. Pant, J. Hon'ble V.K.Bist, J. Oral: Hon'ble Prafulla C.Pant, J. This appeal, preferred under section 374 of Code of Criminal Procedure, 1973, (for short Cr.P.C), is directed against the judgment and order dated 2 05.02.2001, passed by Sessions Judge, Pithoragarh, in Sessions Trial No. 05 of 1994, whereby said court has convicted accused/appellant Fakeer Ram under section 302 of Indian Penal Code, 1860, (for short I.P.C), and sentenced him to imprisonment for life. (2) Heard learned counsel for the parties, and perused the lower court record. (3) Prosecution story, in brief, is that the accused/appellant Fakeer Ram, resident of Village Khitolee, within the limits of Police Station Berinag, District Pithoragarh, got married to Devki Devi (deceased), after his two wives to whom he was married earlier, left him. After the marriage Devki Devi started living with the accused/appellant Fakeer Ram as his third wife. Her younger brother Prem Ram, (PW6), aged 10 years, also used to live with his sister (Devki Devi). He was student of class IIIrd. In the intervening night of 19th and 20th of July 1993, Devki Devi was beaten by her husband Fakeer Ram. Prem Ram (PW6), after having his meals went to sleep in his room. The accused, and the deceased remained in their room. On 20th of July 1993, in the morning Prem Ram (PW6) woke up, and when he saw that his sister Devki Devi was sleeping, he left for the school. He came back in the afternoon, and saw again that his sister is still 3 lying as she was seen in the morning. The younger brother touched body of his sister, and suspected that she might have died. He further found that his brother in law Fakeer Ram (accused/appellant) was not in the house. He (PW6) went to his cousin Shankar Lal (PW2) who used to live at a distance of about one kilometer, and told about the condition of Devki Devi. Informant Shankar Lal ( PW2) came to see Devki Devi, and thereafter went to police station Berinag, where he gave written report ( Ex A-3). On the basis of said report Crime No. 48 of 1993, was registered relating to offence punishable under section 302 I.P.C., against the accused Fakeer Ram, at about 11.00 p.m ( on 20th of July 1993). Investigation was taken up by PW7 Sub Inspector P.K. Upreti. He went with police force to village Khitolee on the next day morning (21.07.1993), and prepared inquest report ( Ex A-2), after taking dead body of Devki Devi in his possession, and sealed it. The Investigating Officer further prepared sketch of the dead body (Ex-A 6), letter of the Chief Medical Officer (Ex-A8), and police form no. 33 (Ex-A7), and sample seal ( Ex A-9). The dead body was sent for post mortem examination to District Head Quarter Pithoragarh, where PW3 Dr. K.S.Mehta along with Dr. P.K.Gupta conducted post mortem examination on the dead body of Devki Devi on 22nd of July 1993, at about 2.00 p.m. The team of medical 4 officers observed ante mortem injuries in the autopsy report ( Ex A-1), and opined that the deceased had died due to injury to brain stem and upper spinal cord, as a result of fracture/dislocation of C1 and C2 vertebrae . After interrogating the witnesses, and on completion of investigation, the Investigating Officer submitted charge sheet (Ex A-12 ) against accused Fakeer Ram, for his trial in respect of offence punishable under section 302 I.P.C. (4) The Magistrate, on receipt of the charge sheet, 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, Pithoragarh, on 14.12.1994, after hearing the parties, framed charge of offence punishable under section 302 I.P.C., against accused Fakeer Ram, who pleaded not guilty, and claimed to be tried. On this, prosecution got examined PW1 Radhey Pant (Village Pradhan) who witnessed the proceedings of the inquest report, PW2 Shankar Lal {(informant), cousin of the deceased}, PW3 Dr. K.S.Mehta (who conducted post mortem examination) , PW4 Jagat Sen {cousin of the accused (declared hostile)}, PW5 Mohan Ram (father of the deceased), PW6 Prem Ram (the star eye witness), and PW7 Sub Inspector P.K.Upreti (who investigated the crime). Oral and documentary evidence 5 was put to the accused under section 313 Cr.P.C., in reply to which he admitted that he got married to Devki Devi in May 1993, he further admitted that his brother in law Prem Ram (PW6) used to live with him. However, he denied the other evidence on record, and alleged that he has been falsely implicated due to the enmity with Village Pradhan. However, no evidence in defence was adduced. The trial court, after hearing the parties, found that prosecution has successfully proved charge of offence punishable under section 302 I.P.C., against accused Fakeer Ram, and convicted him accordingly. After hearing on sentence, the convict was sentenced to imprisonment for life. Aggrieved by said judgment and order dated 05.02.2001, passed by Sessions Judge, Pithoragarh in Sessions Trial No. 05 of 1994, this appeal is filed by the convict. (5) Before further discussion, we think it just, and proper to mention here the ante mortem injuries mentioned in the autopsy report ( Ex A-1) recorded by PW3 Dr. K.S.Mehta, and another medical officer Dr. P.K.Gupta, who conducted post mortem examination on the dead body of Devki Devi on 22.07.1993, at 2.00 p.m. Autopsy report discloses that by the time post mortem was done the rigor mortis had passed off and decomposition had started and skin peeled off. Hair from the skin skull was easily detachable. 6 Greenish discoloration over chest, abdomen, upper limb and right limb. Reddish discoloration of left thigh and left leg. Back-some places greenish, and some places reddish. Rectum and vagina swollen and protruding faecal discharge present. No external injury was recognizable because of petrifaction. However, on internal examination it was found that brain semisolid and petrified. The team of doctors found fracture, and dislocation of C1 and C2 vertebrae. Liquified greenish red material was found at the fracture side in the spinal cord. Lungs were found shrunken. Both chambers of the heart were empty. According to the medical officers the dead body was three days old. At the end in the autopsy report the medical officer opined that deceased had died due to injury of brain stem and upper spinal cord as a result of fracture and discoloration of C1 and C2 vertebrae. PW3 K.S. Mehta, in his statement before the trial court stated that injury suffered by the deceased, could have been caused due to “MAARPEET” (assault )with the blunt object in the intervening night on 19th and 20th of July 1993. In the cross examination the witness did not rule out that the injury could have been suffered by the deceased while falling from a height over hard object. From the medical evidence on record, it is clear that Devki Devi had died unnatural death due to the injury suffered by her on the back of her neck which caused 7 further injuries in the brain stem and upper spinal cord. We have already discussed that Devki Devi had suffered fracture in at two places in the vertebrae near the neck. Now, we have to see whether accused/appellant Fakeer Ram caused the injury to his wife (deceased), and committed her murder as suggested by the prosecution, or not. (6) PW1 Radhey Pant is a Village Pradhan, who has stated that before getting married to Devki Devi accused Fakeer Ram got married twice, to two other women but both previous wives left him as he used to quarrel and beat them. This witness has proved inquest report ( Ex A-2) prepared by the police, after death of Devki Devi. (7) PW2 Shankar Lal is informant, who lodged First Information Report ( Ex A-3) at police station Berinag, on 20th of July 1993, at 11.00 p.m. He is cousin of the deceased who used to live at a distance of about one kilometer from the house of the accused and the deceased. This witness states that Prem Ram ( PW6), younger brother of the deceased, who used to live with her, came to him in the evening on 20th of July 1993, and told him about the incident of death of his sister Devki Devi. However, this witness PW2 Shankar Lal did not support the prosecution fully, and 8 was got declared hostile. However, on going through his entire statement, we do not find that partially not supporting the prosecution story by this witness shakes the prosecution story for the reason that he is not an eye witness, and lodged the First Information Report, on the basis of what he was told by Prem Ram ( PW6). (8) PW4 Jagat Sen is cousin of the accused, who has stated that behavior of the accused with Devki Devi (deceased) was good. This witness was got declared hostile. He has admitted that he is cousin of the accused Fakeer Ram. It is pertinent to mention here that he was not living with the accused as such, his statement that behavior of the accused was good with the deceased does not help the accused at all. (9) PW5 Mohan Ram is father of the deceased, who has simply stated that after the marriage of Devki Devi with accused Fakeer Ram, his son Prem Ram ( PW6) a young boy, also started living with them for his studies. He has stated that Devki Devi died only two months after her marriage with the accused. The witness further states that when he got information about death of his daughter he went to the village of the accused but by then the dead body had already been taken for post mortem examination. However, in cross 9 examination, he admitted that his daughter was happily living with the accused. (10) PW6 Prem Ram is the star eye witness of this case. At the time of the incident he was aged 10 years, and he was the only witness in the intervening night of 19th and 20th of July 1993, in the house of accused and the deceased. He has stated that in that night when he heard shrieks of his sister he went to her and inquired as to what had happened, but she did not tell anything and kept weeping. According to this witness thereafter he came to his room, and slept. In the next morning (20th of July 1993) he woke up and saw that his sister was sleeping in her room, and left for the school after sometime. PW6 Prem Ram further narrates that in the afternoon when he came back from the school he found his sister lying in the same condition, and accused was not in the house. He touched body of his sister which he felt cool. On this, according to the witness he went to Shankar Lal. PW2 Shankar Lal is the person, who is cousin of PW6 Prem Ram, and lodged First Information Report ( Ex A-3) at police station , after receiving information from him (Prem Ram). The statement of PW6 Prem Ram is trustworthy and reliable. His presence in the house of the accused, and the deceased is natural, and stood proved on the record. He has been subjected to lengthy cross examination but nothing has 10 come out in the cross examination which creates doubts in the evidence adduced by PW6 Prem Ram. A suggestion has been given by the defence to this witness at the end of his cross examination stating that deceased had fallen from a tree on a hillock, and died which is denied by the witness. (11) Learned counsel for the appellant argued that it can not be ruled out that deceased might have had fallen from the tree, and suffered the injuries after getting struck over some stone etc. We are unable to accept the possibility projected by the counsel for appellant, for the reason that had it been so the accused Fakeer Ram could have himself reported the matter to the police. From the statement of PW7 Sub Inspector P.K.Upreti, and other witnesses it is evident that accused absconded after the incident. PW6 Prem Ram had no enmity with the accused. Had the incident taken place in the manner suggested by defence as above, PW6 Prem Ram could not have needlessly implicated the accused Fakeer Ram, who was his real brother in law. (12) Our attention is drawn to the over writing in the check report of the First Information Report, and the fact that in the site plan instead of Prem Ram, ' Pratap Ram ' is mentioned as the person who was sleeping in the adjoining room. Both these errors are clerical, and 11 do not create reasonable doubt in the ring of the truth of the prosecution story. (13) For the reasons as discussed above, we do not find any force in this appeal, which is liable to be dismissed. Accordingly, the appeal is dismissed. The conviction and sentence recorded by the trial court under section 302 I.P.C., against accused/appellant Fakeer Ram, stands affirmed. He is on bail. His bail is cancelled. The lower court record be sent back to make the accused/appellant Fakeer Ram serve out the sentence of imprisonment for life awarded by the trial court. (V.K.Bist, J.) (Prafulla C. Pant, J.) 04.5.2011 Nahid