IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 470 of 2001 (Old No. 518 of 1995) Shambhu, S/o Shri Mani Ram, R/o Punjabi Colony Bahedi, District Bareilly …………Appellant. Versus State .…………Respondent. Sri Abdul Wahid, Amicus Curiae, for the appellant. Sri 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.] This appeal, preferred under Section 374 of Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), is directed against the judgment and order dated 04.02.1995 / 06.02.1995, passed by learned III Additional Sessions Judge, Nainital, in Sessions Trial No. 51 of 1991, whereby accused / appellant Shambhu was convicted under Section 302 of Indian Penal Code, 1860 (hereinafter referred as I.P.C.), and sentenced to imprisonment for life. 2 (2) Heard Sri Abdul Wahid, learned Amicus Curiae for the appellant and Sri H.C. Pujari, learned Additional Government Advocate for the State. (3) Prosecution story, in brief, is that on 08.11.1990, at about 10.30 A.M., Tulsi Devi (deceased) along with her sister Bela (P.W.2) and sister-in-law Motia Devi (P.W.3) were washing clothes in the courtyard of their house in T.D.C. Colony, Pant Nagar. Accused / appellant Shambhu, who used to object his wife talking to other male members, coming in the family, protested to her, on which he was asked by his wife (Tulsi Devi) why he makes false charges against her. This infuriated the accused / appellant Shambhu who brought GANDASA (a heavy sharp edged weapon) from inside the house and gave a blow on the person of Tulsi Devi. On this, Bela (P.W.2) and Motia Devi (P.W.3) caught hold of accused / appellant Shambhu and asked Tulsi Devi to run away. Injured Tulsi Devi could go hardly some steps whereafter she fell down on a field. A Chaukidar Sudama informed about the incident to complainant Joga Singh (P.W.1), who immediately came to his house and saw that accused / appellant Shambhu is physically held by Bela (P.W.2), Motia Devi (P.W.3) and Maya Devi, another 3 sister of the deceased. By then, Police had also reached at the spot. The complainant took the accused / appellant Shambhu and GANDASA to the Police Station, Lal Kuan, and lodged First Information Report (Ext.A-1) on the very day i.e. 08.11.1990, at about 12.05 Noon. There, the First Information Report was registered as Crime No. 302 of 1990, relating to offences punishable under Section 307 I.P.C. against accused Shambhu. Meanwhile, injured Tulsi Devi was taken to Base Hospital, Haldwani. On reaching there, she succumbed to the injury on the same day and the case was converted into one punishable under Section 302 I.P.C.. The investigation was taken up by Sub Inspector Shiv Singh Gussain (P.W.9), and later the same was transferred to Inspector C.K. Mishra (P.W.8). The Police prepared inquest report (Ext.A-10) on the very day i.e. 08.11.1990, at about 01.20 P.M., and the dead body was sent for postmortem examination. Dr. A.N. Saxena (P.W.6) along with one Dr. S.M. Pant, conducted the postmortem examination on the dead body of Tulsi Devi on the next day i.e. 09.11.1990, at about 10.00 A.M.. They recorded incised wound on left side of the neck 10cm x 5cm, muscle deep and opined that death was caused by shock and haemorrhage due to ante mortem injury. Meanwhile, Sub Inspector Shiv Singh Gussain 4 (P.W.9) went to the spot, prepared site plan (Ext.A- 9). Thereafter, Inspector C.K. Mishra (P.W.8), who took over the investigation, interrogated the witnesses and on completion of investigation submitted charge sheet (Ext.A-6) against accused / appellant Shambhu for his trial in respect of offence punishable under Section 302 I.P.C.. (4) The Magistrate, on receipt of the charge sheet, appears to have committed the case to the court of sessions for trial, after giving necessary copies to the accused, as required under Section 207 of Cr.P.C.. Learned Sessions Judge, Nainital, on 10.09.1991, after hearing the parties framed charge of offence punishable under Section 302 I.P.C. against accused Shambhu, who pleaded not guilty and claimed to be tried. Thereafter, case was transferred to III Additional Sessions Judge, who recorded evidence of P.W.1 Joga Singh, complainant; P.W.2 Bela, eyewitness; P.W.3 Motia Devi, another eyewitness; P.W.4 Beeru, in whose presence recovery memo of GANDASA was prepared; P.W.5 Kundan Singh, in whose presence blood stained and simple soil was taken and recovery memo (Ext.A-3) was prepared; P.W.6 Dr. A.N. Saxena, who was one of the members of the team conducted postmortem examination on the dead body of the deceased; P.W.7 Dr. K.K. Joshi of 5 Primary Health Center, Lal Kuan, who recorded the injuries on the person of accused Shambhu, which were received at the time of incident, after he was over powered; P.W.8 C.K. Mishra, the Investigating Officer, who completed the investigation; and P.W.9 Shiv Singh Gussain, who started the investigation. Oral and documentary evidence was put the accused under Section 313 Cr.P.C., in reply to which he admitted that deceased (Tulsi Devi) was his wife. However, he stated that he belongs to Bahedi and have been falsely implicated in the crime. But, no evidence in defence was adduced. After hearing the parties, the trial court found accused / appellant Shambhu guilty of charge of offence punishable under Section 302 I.P.C. on 04.02.1995. The convict was heard on sentence on 06.02.1995 and sentenced to imprisonment for life. Aggrieved by said judgment and order dated 04.02.1995 / 06.02.1995, passed by III Additional Sessions Judge, in Sessions Trial No. 51 of 1991, this appeal was filed before Allahabad High Court on 04.04.1995, where it was admitted on 05.04.1995. The appeal is received by this Court under Section 35 of U.P. Reorganization Act, 2000 (Central Act No. 29 of 2000), for its disposal. Notices were issued to the appellant after the record was received by this Court but no-one turned up. Therefore, Sri Abdul Wahid, Advocate, 6 was appointed Amicus Curiae to assist the Court on behalf of the appellant. (5) Before further discussion, we think it just and proper to mention the ante mortem injury found on the body of Tulsi Devi (deceased) by a team of doctors on 09.11.1990 at 10.00 A.M., who prepared autopsy report (Ext.A-4). The said report is proved by P.W.6 Dr. A.N. Saxena, one of the members of the team of doctors. The ante mortem injury is being reproduced below:- Incised wound on the left side of neck 10cm x 5cm muscle deep, 5cm below lobule of left ear tapping left to right with cutting of underneath tissues, blood vessels of neck and oxter tail of V vertebrae underneath. Margins of wound clean cut. The Medical Officer after conducting postmortem examination found that the deceased had died on account of shock and haemorrhage due to ante mortem injury. The autopsy report (Ext.A-4) read with statement of P.W.6 Dr. A.N. Saxena, establishes on record that Tulsi Devi had died a homicidal death. Now this Court has to see 7 whether accused / appellant Shambhu committed murder of his wife Tulsi or no. (6) P.W.1 Joga Singh is complainant but not eyewitness of the incident. He has stated that on the day of incident accused / appellant Shambhu and his wife Tulsi (deceased) used to live with him in T.D.C. Colony, Pant Nagar. It is further stated by this witness that Tulsi was his sister. As to the day of incident, the witness states that on 08.11.1990, he was coming from Nagla Crossing Bazar, when Chaukidar Sudama came and told him that his brother-in-law Shambhu (accused / appellant) has assaulted Tulsi Devi with GANDASA (sharp edged weapon). On this, he went to his house and saw that his sisters Bela (P.W.2) and Maya, and his wife Motia Devi (P.W.3) had caught hold of accused / appellant Shambhu. Nearby blood stained GANDASA was lying. The witness further states that incident occurred at 10.30 A.M.. The witness further told that Police also reached at the spot and took accused / appellant Shambhu along with GANDASA to the Police Station. According to P.W.1 Joga Singh, he himself along with one Mohan Singh and Beeru (P.W.4) also accompanied the Police to the Police Station with accused / appellant Shambhu. P.W.1 Joga Singh, further states that, thereafter, he got First Information Report (Ext.A-1) 8 scribed through one Tara Kumar and gave it at Police Station, Lal Kuan. (7) P.W.2 Bela, younger sister of the deceased, states that his brother-in-law (accused / appellant) used to ask his wife Tulsi not to talk to other male members, coming in the family. On the day of incident, at 10.30 A.M., Tulsi asked the accused / appellant as to why he objects her to talking to others. On this, accused / appellant Shambhu got angry and went inside the house, brought a GANDASA and gave a blow on neck of his wife Tulsi. The witness states that she shouted. She further told that she along with his sister-in-law could apprehend accused / appellant Shambhu and asked injured Tulsi to run away. Tulsi ran some distance but fell down. Meanwhile, GANDASA was snatched from the hands of Shambhu. This witness (P.W.2) further told that she called her third sister Maya from neighbourhood and she also helped her in keeping the accused / appellant apprehended till the Police and Joga Singh came. The witness states that she told entire story to his brother Joga Singh (P.W.1) and the Police. (8) P.W.3 Motia Devi, wife of complainant, is also an eyewitness of the incident and has corroborated the entire prosecution story as narrated by P.W.2 9 Bela. (For brevity it is not repeated). This witness has further stated that at the time of incident all the three Bela, Tulsi Devi and Motia Devi were washing clothes in the courtyard of the house. (9) P.W.4 Beeru is a witness in whose presence recovery memo (Ext.A-2) was prepared by the Police relating to GANDASA (M.Ext.1). He has proved that recovery memo and identified GANDASA in the court. (10) Learned Amicus Curiae, appearing on behalf of appellant, pointed out that GANDASA was not shown to eyewitnesses P.W.2 Bela and P.W.3 Motia Devi in the court. In our opinion, merely for that reason the testimony of the two eyewitnesses cannot be disbelieved. The first information in the present case is prompt. The prosecution story is corroborated not only from the testimony of the eyewitnesses but also from medical reports on the record. (11) Learned Amicus Curiae submitted that the accused / appellant Shambhu is resident of Bahedi and has been falsely implicated in the crime. We have already discussed above that P.W.1 Joga Singh has stated that his sister (deceased) and 10 brother-in-law (accused / appellant) used to live with him. As such, merely for the reason that accused / appellant has his permanent residence in Bahedi does not shake the prosecution story. (12) It is further contended on behalf of appellant that Tulsi might have been killed in the night, as she was a woman of bad character. We do not find any such suggestion made on behalf of appellant to the eyewitnesses of the incident, rather it is suggested in the cross examination to P.W.3 Motia Devi that Tulsi wanted to go with her husband but Joga Singh did not let her go and due to this reason Joga Singh (complainant) got annoyed with accused / appellant. Even otherwise P.W.6 Dr. A.N. Saxena, who conducted postmortem examination has clearly stated that the ante mortem injury found on the body of deceased could have been caused on 08.11.1990 at 10.30 A.M.. No suggestion has been made to this witness on behalf of defence that the injury could have been caused in the night. (13) Sri Abdul Wahid, learned Amicus Curiae, pointed out certain contradictions in the testimony of P.W.1 Joga Singh and First Information Report (Ext.A-1), but the same are trivial and minor in nature and not sufficient to shake the evidence of eyewitness account given by Bela (P.W.2) and Motia 11 Devi (P.W.3). It is pertinent to mention here that P.W.1 Joga Singh, who lodged First Information Report, is not an eyewitness. (14) Lastly, it is argued on behalf of appellant that Chaukidar Sudama who informed Joga Singh about the incident and Tara Kumar, who scribed First Information Report were not examined by the prosecution. In our opinion, the two were not the material witnesses in this case, as P.W.1 Joga Singh has proved the First Information Report (Ext.A-1) lodged by him regarding which he has stated that he got it scribed through Tara Kumar. Similarly Chaukidar Sudama was not witness of incident. He simply informed about the incident to Joga Singh (complainant) that his sister has been assaulted by her husband (accused / appellant). (15) For the reasons as discussed above, we concur with the trial court that prosecution has successfully proved charge of offence punishable under Section 302 I.P.C. against the accused / appellant Shambhu. We do not find force in this appeal, which is liable to be dismissed. The appeal is dismissed. The judgment and order dated 04.02.1995 / 06.02.1995, passed by III Additional Sessions Judge, Nainital, in Sessions Trial No. 51 of 1991, convicting and sentencing accused / 12 appellant Shambhu under Section 302 I.P.C., is affirmed. Accused / appellant Shambhu is on bail. He bail is cancelled. The trial court shall take the accused / appellant in custody to make him serve out the sentence awarded to him. The period spent by accused Shambhu during trial and during the period of this appeal till he was enlarged on bail by Allahabad High Court, shall be adjusted against the sentence awarded to him. Registry is directed to send back the Lower Court Record. (B.S. Verma, J.) (Prafulla C. Pant, J.) 23.06.2009 NS 13