Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Jail Appeal No. 84 of 2005 Birendra Singh … Appellant Versus State …Respondent Smt. Seema Sirohi, Amicus Curiae for the appellant Sri S.S. Adhikari, A.G.A. for the State/respondent Hon’ble B.C. Kandpal, J. Hon’ble Nirmal Yadav, J. Delivered by Hon’ble B.C. Kandpal, J. This appeal under Section 374 Cr.P.C. has been preferred against the judgment and order dated 22.3.2004 passed by Sessions Judge, Rudraprayag, in Sessions Trial No. 29 of 2003 State versus Birendra Singh, whereby accused/appellant has been convicted under Sections 302, 307 and 309 I.P.C. The accused-appellant has been awarded life imprisonment under Section 302 I.P.C. He has been sentenced to three years imprisonment under Section 307 I.P.C. and one year imprisonment under Section 309 I.P.C. 2- Prosecution story in brief is that on 17.8.2003 at 6.00 a.m. PW-1 Ramesh Singh was sleeping in his room. After hearing noise of the ladies and his mother PW-2 Smt. Thepari Devi, he woke up and asked the cause of their weeping. PW-2 told him that accused killed his wife Smt. Bachan Dei. His daughter also got injuries on her person. The accused had also beaten his mother PW-2 Smt. Thepari Devi. When PW-1 Ramesh Singh visited the room of the place of incident, he found that Smt. 2 Bachan Dei was lying on the ground in a dead stage and blood was oozing out of her neck. The injured daughter was taken to the hospital. The matter was reported to the Patwari Barsir and F.I.R. was lodged on 17.8.2003 at 7.30 a.m. in Crime No. 3 of 2003. The crime was investigated by PW-7 Durlabh Lal, who inspected the place of incident after lodging Chick F.I.R. (Ext.Ka.4) and G.D. (Ext.Ka.5). He prepared inquest report of the deceased vide Ext.Ka.2 and also prepared site plan vide Ext.Ka.6. He found that accused was trying to commit suicide by hanging and recovered the mooring and sealed it. The investigating officer also recovered axe from the field on the pointing out of accused and prepared its recovery memo vide Ext.Ka.7. Mooring and axe are as material Exts.1 and 2. The investigating officer collected bloodstained soil and simple soil from the spot and prepared its memo vide Ext.Ka.8. He also prepared lash (Ext.Ka.9). On the pointing out of accused, the I.O. recovered shirt containing blood stains, on 19.8.2003 and sealed it. The shirt was produced in the court at material Ext. Ka.5. The accused was arrested on 17.8.2003 and arresting memo was prepared was Ext.Ka.10. He also prepared recovery memo of shirt. The recovered axe, bloodstained soil and simple soil and blood- contained shirt were sent for chemical examination and report of chemical examiner was produced in the court as Ext.Ka.13. After completing the investigation, the investigating officer submitted charge sheet (Ext.Ka.12) against Sections 302, 307, 309 I.P.C. against the accused/appellant. 3 3- The learned Magistrate 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. The learned Sessions Judge after hearing the parties framed charge of offence punishable under Sections 302, 307, 309 I.P.C. against accused/appellant. The accused pleaded not guilty and claimed to be tried. 4- The prosecution in order to bring home guilt against the accused persons got examined as many as eight witnesses in the case, namely, PW-1 Ramesh Singh (brother of accused), PW-2 Smt. Thepari Devi (mother of the accused), PW-3 Sri Mola Ram witness of fact, PW-4 Chandra Singh Negi before whom the accused made extra-judicial confession, PW-5 Dr. Rakesh Kumar who examined the accused Birendra Singh and proved his report (Ext.Ka.3), PW-6 Khimman Singh (father of the deceased) witness of fact of beating and harassment by the accused, PW-7 Sri Durlabh Singh Patwari, investigating officer and PW-8 Dr. Mahendra Singh Bhandari who conducted autopsy of the deceased. 5- The accused in his statement under Section 313 Cr.P.C. admitted the marriage with the deceased Smt. Bachan Dei Devi and killing his wife in the night of 16/17.8.2003. He also admitted for trying to kill his daughter Km. Reena. He also admitted the commission of suicide. He also admitted the recovery of mooring and axe on his behalf. He denied rest of the allegations. He also stated that there was no reason for killing his wife. 4 6- The trial court having considered the entire evidence on record and hearing learned counsel for parties convicted the accused/appellant Birendra Singh under Sections 302, 307, 309 I.P.C. and sentenced him for life imprisonment under Section 302 I.P.C., three years imprisonment under Section 307 I.P.C. and one year imprisonment under Section 309 I.P.C., vide judgment and order dated 22.3.2004. 7- Feeling aggrieved by the aforesaid impugned judgment and order, the appellant has preferred the present appeal through jail, which has been placed before us for disposal. 8- Before further discussion, it is pertinent to mention the injuries found on the body of the accused Birendra Singh vide injury report Ex.Ka.3, who was medically examined by PW-5 Dr. Rakesh Kumar on 17.8.2003 at 2.20 p.m., which are reproduced as under: - (i) Linear abrasion mark measuring about 8 cm in length and 0.5 cm in width over the right side of the neck intending from left inferior acicular area to thyroid cartilage with bias red colonialism of the skin. (ii) Linear abrasion mark measuring 4 cm in length and 1 cm width over the right side of the neck extending from back of the neck to right side of the thyroid anti lag with bluish red colonialism of the skin. (iii) Linear abrasion mark measuring about 10 cm in length and 1 cm in width over the right side of the neck extending from back of 5 the neck to right side of the thyroid cartilage with bluish red counetin of the skin. 9- The autopsy on the dead body of the deceased Smt. Bachan Dei was conducted on 18.8.2003 at 10.15 a.m. by Dr. Mahendra Singh Bhandari (PW- 8), who found the following ante mortem injuries on her person: (i) Incised wound measuring 8 cm x 4 cm x 3 cm deep at left cheek extending from the left alia at the nose to the 3 cm out to left. Triages of sear left maxilla purse fractured and teeth uprooted. (ii) Incised wound measuring 5 cm x 3 cm x 2 cm deep at right cheeks placed parentally trend the right angle of the mouth twangs back. Mandy’s of right side partied. (iii) Incised wound measuring 7 cm x 3 cm x 3.5 cm deep at the left side of the neck from left mandible angle towards back up to 9.5 cm back from the tragically ear. (iv) Incised wound measuring 5 cm x 1.5 cm x 2 cm deep at left side of the neck just below the injury no.3. (v) Incised wound measuring 8 cm x 2 cm x moody deep situated vertically down word from the right angle of the filth. (vi) Incised wound measuring 8 cm x 3 cm x 3 cm deep situated in front and right of the Trent of neck 5 cm below from the chin and 8 cm from the trigs of right ear. The Medical Officer (PW-8) proved the post 6 mortem report (Ext.Ka.14) and at the end of post mortem examination he opined that cause of death is shock and hemorrhage as a result of ante mortem injuries. He further opined that injuries could have been caused by axe recovered at the instance of the accused. The evidence of PW-8 Dr. Mahendra Singh Bhandari read with post mortem report (Ext.Ka.14) establishes on record that deceased Bachan Dei has died homicidal death in the night of 16/17.8.2003. 10- It is pertinent to mention here that it is a case of circumstantial evidence as no eyewitness of occurrence is there in the present case. Now, it is to be seen whether the prosecution has established the chain of circumstances leading to only one conclusion that the accused/appellant committed murder of his wife; caused injuries to his mother and daughter and after commission of offence he tried to commit suicide. 11- We have re-assessed the entire oral and documentary testimony and found that to prove the charge following circumstances are established on record against accused/appellant:- 12- PW-1 Ramesh Singh, brother of the accused Birendra Singh, has stated on oath that in the morning of 17.8.2003, he heard noise of his mother PW-2 Smt. Thepari Devi. When he reached on the spot, he saw dead body of Smt. Bachan Dei rapped with blood and accused Birendra Singh was also present there. This witness has also stated that his mother told him that Birendra Singh killed his wife and she also told him that when she was taking out Km. Reena, daughter of the accused, from the place 7 of incident, then accused pushed her due to which she also sustained injuries on her hand. This witness has further stated that Birendra Singh also tried to kill his daughter and caused injuries to her due to which she had become disabled. This witness has lodged the F.I.R. (Ext.Ka.1) with Patwari Basrir on the same day i.e. on 17.8.2003. 13- The above testimony of PW-1 Ramesh Singh is also from the evidence of PW-2 Smt. Thepari Devi, mother of the accused. This witness has specifically stated that in the morning of 17.8.2003 at 6.00 a.m. she woke up with the noise of Km. Reena, daughter of the accused, and when she entered into the room, she found Bechan Dei was lying dead and Km. Reena was lying below the dead body. This witness has further stated that when she inquired about the death of Bachan Dei, the accused pushed her and she fell down and Km. Reena also fell down. In this way, the witnesses i.e. PW-1 and PW-2 had seen the accused Birendra Singh at the spot in the night of the incident. Further, the presence of the accused is also established from the evidence of PW- 3 Mola Ram, PW-4 Chandra Singh and PW-7 Durlabh Lal, Patwari. PW-2 Smt. Thepari Devi has also stated in her evidence that she was pushed by the accused on being making enquiry from him about the murder of Bachan Devi. This act of the accused shows his involvement in the commission of the crime. 14- PW-7 Durlabh Lal, investigating officer has stated on oath that accused tried to commit suicide after the incident. During investigation, he recovered the mooring from the place of occurrence 8 on the pointing out of accused and prepared its recovery memo as Ext.Ka.7. Similarly, at the instance of the accused the investigating officer also recovered an axe which contained blood spots and proved the same. This witness has further stated that shirt of the accused was recovered on 19.8.2003 on his pointing out. Thus, recovery of these articles also connects the accused in the commission of the offence. 15- PW-5 Dr. Rakesh Kumar, who medically examined the injuries found on the person of the accused, found 3 linear abrasions on the neck and opined that they could have come from the mooring. He further opined that symptom of the injuries shows that these injuries could have been caused in an attempt to commit suicide. 16- PW-8 Dr. Mahendra Singh Adhikari, who prepared autopsy report (Ext.Ka.14), after post mortem examination of the deceased Bachan Dei, opined that she died of hemorrhage and shock. He recorded as many as 6 ante mortem injuries on the person of the deceased. He found that these injuries were on the left and right cheek and neck. These injuries, according to this witness, appears to have been caused by axe. 17- PW-2 Smt. Thepari Devi, mother of the accused, has stated in her evidence that accused made extra-judicial confession before her and Patwari that he killed his wife. The testimony of PW- 2 also gets corroboration from the evidence of PW-4 Chandra Singh, who has also deposed that accused confessed before him and Patwari having killed his 9 wife. 18- The report of Forensic Science Laboratory (Ext.Ka.13), which is on record, shows that articles 1 to 3, namely, bloodstained earth and simple earth, axe and shirt, contain stains of human blood, article 3 i.e. shirt contains human blood, while articles 1 and 2 contain disintegrated stains of human blood. 19- The accused in his statement under Section 313 Cr.P.C. has admitted that he killed his wife and caused injuries to his daughter. His statement shows that he confessed the guilt having killed his wife Bachan Dei and having caused injuries to his daughter Km. Reena. This is very clinching evidence on record. 20- Having gone through the entire evidence, as discussed above, we are of the view that chain of circumstances as against accused/appellant that he committed murder of his wife; caused injuries to his mother and daughter; and after commission of offence he tried to commit suicide, is proved beyond all reasonable doubt. As such, we concur with the finding recorded by the trial court. 21- On behalf of the appellant, it is argued that chain of circumstances is not complete. We have already narrated the chain of circumstances and the evidence by which it is proved. In our opinion, there is nothing on record which shows that chain of circumstances is incomplete. As such, we do not find any force in the argument advanced on behalf of the appellant. 10 22- For the reasons stated above, the appeal has no force and the same is liable to be dismissed. 23- Accordingly, the appeal is dismissed. The impugned judgment and order dated 22.3.2004 is hereby confirmed. (Nirmal Yadav, J.) (B.C. Kandpal, J.) April 28, 2010 SP