IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 188 of 2002 Fate Singh, S/o Jaman Singh, R/o Village-Kapholi Patwari Circle-Chhakura, Tehsil Tharali District Chamoli …………Appellant (In jail) Versus State of Uttarakhand .…………Opposite Party Along with Criminal Appeal No. 147 of 2002 Smt. Anasi Devi, W/o Fate Singh, R/o Village-Kapholi Patwari Circle-Chhakura, Tehsil Tharali District Chamoli …………Appellant Versus State of Uttarakhand .………… Opposite Party Mr. G.S. Negi, Advocate, for the appellants. Mr. H.C. Pujari, A.G.A., for the State-respondent. Hon’ble Prafulla C. Pant, J. Hon’ble B.S. Verma, J. [Oral- Hon’ble Prafulla C. Pant, J.] 2 Both these appeals, preferred under Section 374 of Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), are directed against the judgment and order dated 06.06.2002, passed by learned Sessions Judge, Chamoli, in Sessions Trial No. 19 of 2001, whereby accused / appellant Fate Singh has been convicted under Sections 302 and 201 of Indian Penal Code, 1860 (hereinafter referred as I.P.C.), and accused / appellant Anasi Devi has been convicted under Section 201 I.P.C.. Accused / appellant Fate Singh has been sentenced to imprisonment for life and directed to pay fine of Rs.5,000/- under Section 302 I.P.C.. He has been further sentenced to rigorous imprisonment for a period of seven years and directed to pay fine of Rs.5,000/- under Section 201 I.P.C.. Accused / appellant Anasi Devi has been sentenced to rigorous imprisonment for a period of two years and also directed to pay fine of Rs.5,000/- under Section 201 I.P.C.. In default of payment of fine, the defaulter is required to undergo three months additional imprisonment. (2) Heard learned counsel for the parties and perused the Lower Court Record. (3) Prosecution story, in brief, is that on 07.10.2001 at about 2.00 p.m., Suri Devi (P.W.5), Maheshi Devi (P.W.6) and some other villagers saw accused / appellant Fate Singh and his wife Anasi 3 Devi beating and taking Kalyan Singh (deceased) forcibly in Village Kapholi. At that time deceased was in an injured condition. Kalyan Singh (deceased) was brother of accused / appellant Fate Singh. Ranjeet Singh (P.W.2), Kasbi Lal (P.W.3) and Kripal Singh (P.W.4), who had gone during day time away from village, when returned back in the evening came to know about the quarrel between Fate Singh (accused / appellant) and Kalyan Singh (deceased). They also came to know by the evening that accused / appellant Fate Singh and his wife Anasi Devi took injured Kalyan Singh towards Nal Gaon. Dilbari Lal (P.W.1), Village Pradhan, who had gone on 02.10.2001 to Karnprayag returned back on 09.10.2001. On his return, he was told about the incident. He immediately called a meeting of Village Panchayat in which accused / appellant Fate Singh was also called. Before Village Panchayat, on 09.10.2001, accused / appellant Fate Singh admitted having killed his brother Kalyan Singh on 07.10.2001. Minutes (Ext.A-1) were drawn of the proceedings of Village Panchyat, which were signed by all the villagers present in the meeting. Accused / appellant Fate Singh also signed said document. Thereafter, Dilbari Lal (P.W.1), Village Pradhan, lodged First Information Report (Ext.A-2) on 10.10.2001 at 8.00 a.m. with Patwari of the area that accused / appellants have committed murder of Kalyan Singh and concealed 4 his body. (In the interior hills of Uttarakhand certain revenue officials are given police powers under U.P. Government Notification No.494/VIII- 418-16, dated 07.03.1916). On the basis of said report Patwari, Chhaikura, registered Crime No. 1 of 2001, relating to offences punishable under Sections 302 and 201 I.P.C. against accused / appellant Fate Singh and his wife Anasi Devi, and check report (Ext.A-6) was also prepared by the Patwari. He made necessary entry in the general diary (Ext.A-7). On the same day (10.10.2001), Patwari along with Village Pradhan and others went to village Kapholi and took accused / appellant Fate Singh with him. An inquiry was made from accused / appellant Fate Singh regarding Kalyan Singh, on which he disclosed that he had concealed the body near cowshed in Nal Gaon. At 12.30 p.m. on the very day (10.10.2001) dead body of Kalyan Singh was dug out in village Nal Gaon on pointing out of accused / appellant Fate Singh by the villagers in presence of P.W.1 Dilbari Lal, P.W.2 Ranjeet Singh, P.W.4 Kripal Singh and P.W.7 Bhagat Singh, Patwari, who investigated the crime. Inquest report (Ext.A-3) was prepared by Patwari in the presence of witness Kasbi Lal (P.W.3) and other villagers at 1.00 p.m. (on 10.10.2001). On that very day THAMALI (sickle) by which the deceased was murdered was also recovered on pointing out of accused / appellant Fate Singh from his house in 5 village Kapholi and recovery memo (Ext.A-4) was prepared in the presence of Ranjeet Singh (P.W.2). The Investigating Officer prepared site plan (Ext.A- 9), sample seal (Ext.A-10), letter to Chief Medical Officer, Chamoli (Ext.A-12) requesting for postmortem examination, police form No. 13 (Ext.A- 13), sketch of the dead body (Ext.A-14) and sample seal (Ext.A-15). On 11.10.2001 P.W.8 Dr. R.S. Rawat conducted postmortem examination on the dead body of Kalyan Singh and recorded as many as seven ante mortem injuries. He prepared autopsy report (Ext.A-20) and opined that deceased has died of haemorrhage and shock as a result of ante mortem injuries. After interrogating the witnesses and on completion of investigation, the Investigating Officer submitted charge sheet (Ext.A- 19) against accused / appellant Fate Singh and his wife Anasi Devi for their trial in respect of offences punishable under Sections 302 and 201 I.P.C.. (4) The Chief Judicial Magistrate, Chamoli, 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. Learned Sessions Judge, Chamoli, on 04.02.2002, after hearing the parties, framed charge of offence punishable under Section 302 read with Section 34 I.P.C. and one 6 relating to offence punishable under Section 201 I.P.C. against both the accused / appellants Fate Singh and Smt. Anasi Devi. They pleaded not guilty and claimed to be tried. On this prosecution got examined P.W.1 Dilbari Lal, complainant and Village Pradhan, in whose presence accused Fate Singh made confession and also the dead body was dug out on pointing out of the accused; P.W.2 Ranjeet Singh, in whose presence apart from the dead body of Kalyan Singh was dug out, THAMALI (sickle) used in the crime was also recovered on pointing out of accused / appellant Fate Singh; P.W.3 Kasbi Lal, in whose presence inquest report was prepared; P.W.4 Kripal Singh, in whose presence accused / appellant Fate Singh confessed having murdered his brother Kalyan Singh and also body of Kalyan Singh was dug out; P.W.5 Suri Devi, who saw accused / appellants Fate Singh and Anasi Devi taking injured Kalyan Singh on 07.10.2001; P.W.6 Maheshi Devi, who also saw accused / appellants taking injured Kalyan Singh on 07.10.2001; P.W.7 Bhagat Singh, Patwari, who investigated the crime; and P.W.8 Dr. R.S. Rawat, who conducted postmortem examination on the dead body of Kalyan Singh. Oral and documentary evidence was put the accused under Section 313 Cr.P.C., in reply to which they admitted that Kalyan Singh was brother of accused Fate Singh, and on 07.10.2001 accused / appellants and the deceased 7 were in their village Kapholi. As to the rest of evidence, they alleged the same to be false. It is pleaded by them that Dilbari Lal (Village Pradhan) did not pay their dues towards their work under Jawahar Rojgar Yojna and falsely implicated in this case. However, no evidence in defence was adduced by them. The trial court, after hearing the parties, found accused / appellant Fate Singh guilty of both the charge of offences punishable under Sections 302 and 201 I.P.C.. After hearing on sentence, convict Fate Singh was sentenced to imprisonment for life and directed to pay fine of Rs.5,000/- under Section 302 I.P.C.. He has been further sentenced to rigorous imprisonment for a period of seven years and directed to pay fine of Rs.5,000/- under Section 201 I.P.C.. And, convict Anasi Devi has been sentenced to rigorous imprisonment for a period of two years and also directed to pay fine of Rs.5,000/-under Section 201 I.P.C.. In default of payment of fine the defaulter is required to undergo three months additional imprisonment. Aggrieved by said judgment and order dated 06.06.2002, passed by learned Sessions Judge, Chamoli, in Sessions Trial No. 19 of 2001, accused Fate Singh (in jail) has filed this appeal which is numbered as Criminal Appeal No. 188 of 2002. Accused Anasi Devi filed separate appeal, which is numbered as Criminal Appeal No. 147 of 2002. 8 (5) Before further discussions, we think it just and proper to mention the ante mortem injuries recorded by P.W.8 Dr. R.S. Rawat, in the autopsy report (Ext.A-20) after postmortem examination on 11.10.2001 at 11.30 a.m.. The ante mortem injuries found on the dead body of Kalyan Singh are being reproduced below: - (i) Total amputation of the right leg at the level of lower 1/3 and upper 2/3 junction. Margins are clean cut. (ii) Lacerated wound 5cm x 2cm x bone deep over the upper part of front of left leg just below the knee joint. Tibia fractured. (iii) Lacerated wound 8cm x 3cm x bone deep over the inner surface of the left wrist. Ulna fractured. (iv) Lacerated wound 2cm x 2cm x scalp deep on the top of the head. 8cm above the right ear. (v) Multiple abrasions over the front of the chest at an area of 8cm x 6cm. (vi) Multiple abrasions over the back of the chest over an area of 12cm x 8cm. (vii) Abrasion in an area of 6cm x 3cm in the posterior part of left elbow. 9 The Medical Officer opined that deceased had died of haemorrhage and shock as a result of ante mortem injuries. He has also mentioned in his autopsy report (Ext.A-20) that the dead body was four days old, rigor mortis had passed of from all over the body, skin was peeling off, maggots were present and whole body was swollen due to putrifaction. The evidence adduced by P.W.8 Dr. R.S. Rawat read with autopsy report clearly establishes on record that Kalyan Singh was murdered on 07.10.2001. Now the question before this Court is whether accused / appellant Fate Singh murdered his brother Kalyan Singh, and caused disappearance of the dead body with his wife accused / appellant Anasi Devi, to screen the offence. (6) P.W.1 Dilbari Lal is Village Pradhan of Village Kapholi. This witness has stated that on 02.10.2001 he had gone to Karnprayag in connection with some Gram Sabha work and returned only on 09.10.2001. When he reached village, he was told by the villagers that on 07.10.2001, Kalyan Singh has been killed. On this, he immediately called a meeting of villagers (Gram Sabha) on that very day. Accused / appellant Fate Singh was also present in said meeting. He admitted having killed his brother Kalyan Singh. He further told the Panchyat that matter was between 10 him and his brother Kalyan Singh, and the villagers have no concern with it. This confessional statement was recorded in the proceedings of meeting, which is Ext.A-1 on the record. Accused / appellant Fate Singh himself has signed this document. The witness has proved said document. P.W.1 Dilbari Lal has further stated that Fate Singh told the villagers that he took Kalyan Singh beating to ‘Gaushala’ (cowshed). P.W.1 Dilbari Lal further told that thereafter on the next day i.e. 10.10.2001, he went to Patwari and lodged First Information Report (Ext.A-2) at 8.00 a.m., against accused. According to this witness, thereafter Patwari along with his Peon, Kanoongo came to Kapholi and reached to the house of Fate Singh (accused / appellant). Fate Singh, Patwari and villagers went to the place where accused / appellant Fate Singh had buried the dead body. The dead body was dug out and inquest report (Ext.A-3) was prepared. P.W.1 Dilbari Lal further told that THAMALI (sickle), used in the crime, was also recovered by Patwari and memorandum (Ext.A-4) was prepared. (7) P.W.2 Ranjeet Singh, a Clerk in school, who is also resident of Village Kapholi has stated that on 07.10.2001, though it was a Sunday but he had gone to school for some work. On reaching back in the evening he came to know in the village that there had been quarrel between Fate Singh and 11 Kalyan Singh. On 09.10.2001, according to this witness, when Fate Singh was asked in the meeting (of Village Panchayat) he admitted having killed his brother Kalyan Singh. This witness has further stated that next day Fate Singh gave THAMALI (sickle), used in the crime and recovery memo (Ext.A-4) was prepared in his presence. The witness further told that dead body of Kalyan Singh was recovered by Patwari after digging it out near a cowshed on 10.10.2001. (8) P.W.3 Kasbi Lal has also stated that on the day of incident he had gone away from the village but when he came in the evening he was told that there had been a quarrel between Fate Singh and Kalyan Singh. This witness has only stated that inquest report (Ext.A-3) was prepared in his presence after dead body of Kalyan Singh was dug out. (9) P.W.4 Kripal Singh who is a shopkeeper in village Kapholi has stated that he did not saw Fate Singh and Kalyan Singh fighting, but he had heard that they quarreled on the day of incident. The witness has further stated that he attended the Panchayat meeting of the villagers and accused Fate Singh confessed that he has killed his brother. The witness has further stated that Fate Singh told 12 the villagers in the meeting that they had no concern, and if punished it will be he who would suffer. P.W.4 Kripal Singh has also corroborated the fact that on 10.10.2001 dead body was dug out on pointing out of accused Fate Singh and inquest report (Ext.A-3) was prepared by Patwari. (10) P.W.5 Suri Devi and P.W.6 Maheshi Devi have stated that they were in their houses on the day of incident. Both these witnesses have stated that on 07.10.2001 they saw from their houses accused / appellants Fate Singh and Anasi Devi taking Kalyan Singh. They also told that Kalyan Singh was bleeding. (11) Sri G.S. Negi, learned counsel for the appellants pointed out certain discrepancies in the timing of recovery of THAMALI (sickle) and dead body of the deceased. However, the said discrepancies were not found material, as the same are not sufficient to shake the ring of truth as to the fact of recovery of dead body and the weapon on pointing out of the accused. In this connection, learned counsel for the appellants drew attention of this Court to the principle of law laid down in Puran Chandra Vs. State of Uttaranchal 2004 (2) U.D. 222, and Manoranjan Singh Versus State of Delhi (1998) 3 Supreme Court Cases 523, and it is contended that since the accused 13 has been shown arrested by the Investigating Officer on 11.10.2001, as such recovery made by the Investigating Officer on 10.10.2001 cannot be said to be made under Section 27 of Indian Evidence Act, 1872. We have gone through said case laws. Having considered the submissions of learned counsel for the appellants we find that Section 27 of Indian Evidence Act, 1872, does not bar admissibility of the evidence as to recovery of weapon or dead body before the arrest of the accused. Case laws referred do not help the appellants in this case as the facts and circumstances of the present case are different. The Evidence Act does not bar recovery of weapon or dead body on pointing out of accused before his arrest. Similarly the case of State of Karnataka versus A.B. Nagaraj and Anr. 2003 (1) UC 415, and Kojja Sreenu Versus State of A.P. 2005 Supreme Court Cases (Crl) 853, relied on behalf of appellants are of no help to them as the confessional statement made in this case by the accused / appellant Fate Singh is in the presence of entire Village Panchayat and he has signed the minutes recording confession. As such, in the present case the confession made before Village Panchayat cannot be lightly discarded. (12) From the evidence discussed above, this Court finds that chain of circumstances as against Fate 14 Singh is complete. He has admitted having committed murder of his brother before Village Panchayat. It was he (Fate Singh) on whose pointing out dead body of his brother Kalyan Singh was recovered. It is further proved by the prosecution that THAMALI (sickle) used in the crime was recovered on pointing out of accused / appellant Fate Singh. We have already discussed above that the postmortem examination also corroborates that deceased was murdered on 07.10.2001. It is further proved on the record that accused / appellant Fate Singh was seen by P.W.5 Suri Devi and P.W.6 Maheshi Devi taking his brother Kalyan Singh in an injured condition. All these circumstantial evidence read together, proves the charge of commission of murder of Kalyan Singh and causing disappearance of his dead body by Fate Singh beyond reasonable doubt. As such, we have no reason to disagree with the trial court that the prosecution has successfully proved charge of offences punishable under Sections 302 and 201 I.P.C. against accused / appellant Fate Singh. However, as to the accused / appellant Anasi Devi, she has been convicted under Section 201 I.P.C. but chain of circumstances is not complete as against her that she caused disappearance of the dead body by getting it buried. Only evidence as against her is that she was seen accompanying her husband while he was taking 15 Kalyan Singh in an injured condition on 07.10.2001. That alone circumstance is not sufficient to prove the charge of offence punishable under Section 201 I.P.C. against her. In our opinion it cannot be said that said charge (201 I.P.C.) is proved against Anasi Devi beyond reasonable doubt. She is entitled to the benefit of reasonable doubt. (13) Therefore, Criminal Appeal No. 147 of 2002, filed by Anasi Devi is allowed. Conviction and sentence recorded by the trial court as against her relating to offence punishable under Section 201 I.P.C. is set aside. She is on bail. She needs not to surrender. But, Criminal Appeal No. 188 of 2002 filed by convict Fate Singh is dismissed. Conviction and sentence recorded by the trial court as against him relating to offences punishable under Sections 302 and 201 I.P.C is affirmed. He is in jail. Registry is directed to send a copy of this order to the Superintendent of Jail concerned where the convict / appellant Fate Singh is serving out the sentence. Lower Court Record be sent back. (B.S. Verma, J.) (Prafulla C. Pant, J.) 09.07.2009 NS