Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Jail Appeal No. 57 of 2004 1- Jogendra Singh @ Kalia @ Mama, S/o Dilip Singh, R/o Jadonpur, P.S. Khatima District Udham Singh Nagar 2- Ram Lal S/o Ram Nath R/o Bhindara P.S. Nuria District Pilibhit …Appellants Versus State …Respondent With Criminal Appeal No. 94 of 2004 Jogendra Singh @ Kalia @ Mama, S/o Dilip Singh, R/o Jadonpur, P.S. Khatima District Udham Singh Nagar …Appellant State …Respondent Mr. A.S. Gill, Advocate for appellant no. 1 Jogendra Singh Mr. M.C. Pant, Amicus Curiae for appellant no. 2 Ram Lal Mr. 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.) Both the Appeals arise out of the same judgment and order dated 10.02.2004 passed by Additional Sessions Judge/III F.T.C. Rudrapur, Udham Singh Nagar, in Sessions Trial No. 188 of 2003, whereby the learned Sessions Judge convicted the appellants Jogendra Singh @ Kalia @ Mama and Ram Lal under Section 302/201 I.P.C. The learned Sessions Judge while convicting appellants under Section 302 I.P.C. sentenced both of them to undergo life imprisonment and a fine of Rs.2000/- each and in default of payment of fine, 2 the appellants were further directed to undergo sentence of rigorous imprisonment of six months each. The learned Sessions Judge while convicting the appellants under Section 201 I.P.C. directed them to undergo sentence of rigorous imprisonment of three years each and a fine of Rs.1000/- each and in default of payment of fine, the appellants were further directed to undergo sentence of rigorous imprisonment of two months each. However, both the sentences have been directed to be run concurrently. 2- Accused/appellants Jogendra Singh and Ram Lal have preferred joint Criminal Jail Appeal No. 57 of 2004, whereas accused/appellant Jogendra Singh has preferred Criminal Appeal No. 94 of 2004. 3- Prosecution story in brief is that Nandram (deceased) is the brother of complainant Prem Narain. Nandram (deceased), along with accused Jogendra Singh and Ram Lal, was doing the business of manufacturing and selling of liquor. On 24.04.2003 at about 7.00 a.m., accused Ram Lal came to the house of the complainant and taken the deceased Nandram with him on the pretext that they would go to the house of Jogendra Singh for doing labour work. In the evening when Nandram (deceased) did not return to the house, complainant had gone to the house of accused Ram Lal for searching for his brother Nandram, where Ram Lal was not found at his house. On the next day, complainant along with Bhimsen had gone to the house of Jogendra Singh for searching for his brother, but Jogendra Singh was also not found there and his wife told that Jogendra Singh, Ram 3 Lal and Nandram (deceased) went to the jungle yesterday but they did not return so far. Thereafter, complainant along with Bhimsen went to the bank of Praveen river, where accused were doing business of manufacturing of liquor and saw accused Jogendra Singh and Ram Lal fleeing away from there, but Nandram (deceased) was not found there. On search made by them, the complainant saw that blood and dragging mark were found there. On 28.4.2003 at about 3.00 p.m., dead body of Nandram was found hanging in the bush near Amariya at Devaha canal. The information of this incident was given by the father of the complainant at P.S. Amariya, District Pilibhit. 4- The complainant (PW-1) Ram Narain also lodged a written report (Ext.Ka.1) to the S.H.O. Amariya in this regard, on the basis of which Crime No. Nil, under Sections 302, 201 I.P.C., was registered at P.S. Amariya. On 28.04.2003, inquest report on the dead body of the deceased was prepared. Later, since the offence of murder was related to P.S. Khatima, a Crime No. 319/2003 was registered at P.S. Khatima. During the course of investigation, on 06.06.2003, accused Jogendra Singh was arrested from his residence and he confessed his guilt. Accused Jogendra Singh has stated that he along with accused Ram Lal and Nandram (deceased) was doing the business of manufacturing and selling of liquor and Nandram used to keep the accounts of sale in his possession. The accused further stated that deceased Nandram kept the money in his possession and started doing Mukhbiri in Police and Excise Department. On this, there was some quarrel between the deceased and 4 the accused. He has further stated that on 24.04.2003 accused called the deceased from his village on the pretext that they would manufacture liquor and at 5.30 p.m. and both the accused killed the deceased by giving injuries on the person of the deceased. Accused Jogendra Singh gave Daranti (sickle) blows, whereas accused Ram Lal gave spade blows on the person of the deceased. The accused in order to destroy the evidence concealed the said weapons in the bushes and threw the dead body of the deceased in Devaha River flowing beneath the field of Harbhajan Singh. 4- The investigation of the case was taken up by D.C.S. Rawat (PW-7) who recovered the bloodstained sickle and spade (weapons used in the crime) from the bushes in the field of Gurusevak Singh on the pointing out of accused Jogendra Singh. The investigating officer prepared the recovery memo accordingly as well as the site plan pertaining to the place from where the aforesaid weapons were recovered. On 29.4.2003, post mortem on the body of the deceased was conducted at District Hospital, Pilibhit by Dr. Udai Veer Singh (PW-5), who prepared autopsy report (Ext.Ka.12) and recorded as many as seven ante mortem injuries, which includes six incised wounds. The Medical Officer has opined that deceased died on account of shock and hemorrhage due to ante mortem injuries suffered by him. The recovered weapons were sent to Forensic Science Laboratory for chemical examination, in which it was found that spade and sickle contained blood stains and spade also contained human blood, but sickle contained blood stains. The Investigating Officer 5 after completing the investigation submitted the charge sheet against the accused/appellants under Section 302/201 I.P.C. 5- 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 the charges against the accused under Sections 302/201 I.P.C. The accused/appellants denied of the charges levelled against them and claimed their trial. 6- The prosecution in order to bring the guilt of the appellants to home, produced Prem Narain PW- 1, Radhey Shyam PW-2, Ram Krishna PW-3, A.S.I. Devendra Singh PW-4, Dr. Udai Veer Singh PW-5, Head Constable Girish Chandra Bhatt PW-6 and D.C.S. Rawat, PW-7. 7- After the evidence of the prosecution was over, the statements of the accused were recorded under Section 313 Cr.P.C. The accused denied the prosecution case and alleged that they have been falsely implicated. However, they did not adduce any evidence in their defence. 8- The trial court, after having perused the entire record on record and hearing learned counsel for the parties, convicted the accused/appellants under Sections 302 and 201 I.P.C. and sentenced them as mentioned above, vide judgment and order dated 10.02.2004. 6 9- Feeling aggrieved by the aforesaid impugned judgment and order the accused/appellants have preferred the present appeals before this Court which have been placed before us for disposal. 10- We have heard Sri A.S. Gill, learned counsel for appellant no. 1-Jogendra Singh, Sri M.C. Pant, learned Amicus Curiae for appellant no. 2-Ram Lal, Sri S.S. Adhikari, learned A.G.A. for the State/respondent and perused the record. 11- Before further discussion, it is pertinent to mention here that post mortem examination on the dead body of the deceased Nandram was conducted on 29.4.2003 at 3.30 p.m. at District Hospital, Pilibhit, by Dr. Udai Veer Singh (PW-5), who found the following ante mortem injuries on his person:- (i) Incised wound 17 cm x 14 cm x across deep on the right shoulder. Distal part of upper limb is missing. All the structure underlying organs are cut. (ii) Incised wound 10 cm x 5 cm x trachea deep on the anterior part of the neck just above the sterna nose on deep dissection muscle, great vessels of neck trachea are cut. (iii) Incised wound on the right ankle joint detached at distal part of tibia. All structures are cut. Distal part of joint is missing. (iv) Incised wound 11 cm x 6 cm x muscle deep on left axilla underlying axillan vessels and nerves are cut. (v) Incised wound 4 cm x 2 cm x muscle 7 deep on right lumb region underlying skin and muscles are cut. (vi) Incised wound 4 cm x 2 cm x muscle deep on the front of left shoulder underlying muscles and skin are cut. (vii) Contusion 6 cm x 3 cm on the front of left leg below the knee joint. 12- The Medical Officer (PW-5) opined that deceased died on account of shock and hemorrhage due to ante mortem injuries. He further opined that the said injuries, except injury no. 7, could have been caused by sickle and spade, on 24.4.2003 at 5-6 p.m. The statement of PW-5 Dr. Udai Veer Singh, read with autopsy report (Ext.Ka.12), in which 7 ante mortem injuries are mentioned (including 6 incised wounds), clearly establishes on record that Nandram died homicidal death on 24.4.2003. Now, this Court has to see whether accused/appellants committed murder of Nandram (deceased), or not. 13- The case certainly rests on circumstantial evidence as there is no direct evidence available pertaining to the actual incident of murder. Now, it is to be seen whether the prosecution has established the chain of circumstances leading to only one conclusion that the accused/appellants committed murder of the deceased Nandram. 14- The first circumstance which has been relied upon by the prosecution is the last seen evidence of accused in the company of the deceased on the date of incident. The prosecution has produced PW-1 Prem Narain, PW-2 Radhey Shyam and PW-3 Ram 8 Krishna. PW-1 has stated in his evidence that on 24.4.2003 at 7.00 a.m. his brother Nandram (deceased) was called from his house by accused Ram Lal. This fact, stated by PW-1 Prem Narain, is corroborated from the statement of PW-2 Radhey Shyam, who proved the fact that accused Jogendra Singh and Ram Lal were lastly seen in the company of the deceased Nandram, on 24.4.2003 at 5.00 p.m. These witnesses, namely, PW-1 and PW-2 were cross examined by the defence at length, but nothing has come out in their cross-examination to shake their testimony with regard to last seen evidence. PW-2 Radhey Shyam is an independent witness and is not related with the complainant (PW-1) in any manner. He had no reason to falsely implicate the accused. Therefore, it is proved that on 24.4.2003 accused Ram Lal had taken the deceased Nandram with them from his house and accused/appellants Jogendra Singh and Ram Lal were lastly seen in the company of the deceased Nandram, on 24.4.2003 at about 5.00 p.m. PW-3 Ram Krishna has stated in his evidence that on 24.4.2003 at about 5.00 p.m. he heard cries and shrieks from the cane field of Gurusevak Singh, where the murder is said to have taken place. The last seen evidence of these witnesses is natural and trustworthy. Therefore, the prosecution has been successful in establishing the circumstance of last seen in the company of the accused. 15- The next circumstance is the recovery of weapons used in the crime on the pointing out of accused Jogendra Singh himself, which connects the accused/appellants with the commission of crime. PW-1 Prem Narain has stated in his evidence 9 that spade and sickle used in the crime were recovered on the pointing out of accused Jogendra Singh from the bushes at the bank of Praveen River adjacent to the field of Gurusevak Singh. This fact, stated by PW-1 Prem Narain, is corroborated from the statement of PW-7 D.C.S. Rawat who investigated the crime. This witness has stated that on 6.6.2003 he recovered spade and sickle on the pointing out of accused Jogendra Singh from the bushes at the bank of Praveen River adjacent to the field of Gurusevak Singh and prepared memorandum (Ext.Ka.2). This document on record shows that it has been not only signed by the witnesses of recovery, but also there is signature and thumb impression of the accused Jogendra Singh. On 6.6.2003 itself, the investigating officer arrested the accused. As such, there is further corroboration of the prosecution story, as the weapons i.e. sickle and spade, used in the crime, were recovered on the pointing out of the accused Jogendra Singh. Apart from this, the report (Ext.Ka.21) of Forensic Science Laboratory, Agra, where the bloodstained spade and sickle were sent for chemical examination, shows that spade and sickle contained blood stains; spade contained human blood and sickle contained blood stains. As such, it proves that these weapons were used in the commission of crime. Therefore, from reading of entire testimony adduced by the witnesses with the report of Forensic Science Laboratory, it establishes on record that deceased was lastly seen alive in the company of the both the accused and just thereafter deceased was murdered by the accused/appellants. 16- The testimony of the aforesaid witnesses is 10 also fully corroborated from the medical evidence. Perusal of post mortem report (Ext.Ka.12) discloses seven ante mortem injuries (including six incised wound) found at the time of autopsy. The Medical Officer (PW-5) in his report (Ext.Ka.12) stated that the injuries, except injury no. 7, could have been caused by sickle and spade, on 24.4.2003 at 5-6 p.m. Apart from this, Chemical Examiner’s report (Ext.Ka.21) shows that bloodstained weapons, which were sent for chemical examination, were found containing human blood. In the instant case accused Jogendra Singh was armed with sickle, while accused Ram Lal was armed with spade. As per opinion of the doctor, the nature of the injuries are such that they could have been caused by sickle and spade. Therefore, we do not find any material contradiction in the ocular version as well as medical evidence and we are of the view that the medical evidence fully corroborates the prosecution case. 17- The above chain of circumstances, brought on record, clearly establishes charge of offence punishable under Sections 302 and 201 I.P.C. against accused/appellants Jogendra Singh and Ram Lal that they after committing murder of Nandram concealed his dead body in the field. Therefore, we concur with the finding of the trial court that the prosecution has been successful in proving the charge against the accused/appellants Jogendra Singh and Ram Lal. 18- Learned counsel for the accused/appellants argued that there was no motive of commission of crime on the part of the accused and they have been 11 falsely implicated. He has further submitted that PW-1 Prem Lal had some quarrel with Ram Lal with regard to money transaction pertaining to deceased and for that reason deceased would not go with Ram Lal. On going through the evidence on record, we find that PW-1 Prem Narain has stated that prior to the incident there had been a quarrel between his brother (deceased) and accused Ram Lal with regard to money transaction and prior to 4-5 months of the incident, accused Jogendra Singh threatened his brother (deceased) to kill him. After this threat deceased and accused closed to meet cordially to each other. Having gone through the statement of PW-1 Prem Narain, we are of the view that the prosecution has sufficiently shown the reason why the accused was prompted to commit the murder of the deceased. Thus, the motive for the commission of the crime is amply proved. 19- The next argument advanced on behalf of the accused/appellants is that the First Information Report, in the present case, is highly belated. We have re-examined the evidence on record and find that whatever delay is there in lodging the First Information Report, the same is explained, as in fact, murder was committed within the limits of P.S. Khatima, whereas dead body was recovered within the limits of P.S. Amariya, District Pilibhit, therefore there was some confusion with regard to registration of the crime and for this reason, due to confusion, PW-1 has stated the fact regarding lodging of the report at P.S. Khatima. Under these circumstances, whatever delay in lodging the F.I.R. is there, the same has been caused due to confusion with regard to registration of the case. 12 PW-1 Prem Narain has further stated in his cross- examination that he kept on going regularly with regard to lodgment of the F.I.R., but the report could not be written. Since there is sufficient explanation for not lodging the First Information Report earlier, in our opinion, delay in lodging the First Information Report is not fatal in the present case. 20- Learned counsel for the accused/appellants, in support of their case, have cited before us the judgments passed by the Hon’ble Apex Court in the cases of Maruti Ram Naik vs. State of Maharashtra, reported in 2004 SCC (Cri) 958, Hem Raj and others vs. State of Haryana, reported in 2005 SAR (Criminal) 404, Ramreddy Rajeshkhanna Reddy and another vs. State of Andhra Pradesh, reported in 2006(3) Supreme 175, Roop Singh @ Rupa vs. The State of Punjab, reported in 2008(4) Supreme To-day 548, T.T. Antony vs. State of Kerala and others, reported in 2001 AIR SCW 2571. We have gone through the above rulings cited by learned counsel for the accused/appellants and we are of the view that these rulings cited above do not apply to the facts and circumstances of the present case. 21- For the reasons as stated above, we do not find any sufficient reason to interfere with the conviction and sentence, recorded by the trial court against accused/appellants Jogendra Singh and Ram Lal under Sections 302 and 201 I.P.C. Accordingly, both the appeals are liable to be dismissed. 22- Accordingly, both the appeals are dismissed. The impugned judgment and order dated 13 10.02.2004 passed by trial court, is hereby confirmed. Appellants are already in jail. They shall be detained there in order to serve out the sentence awarded by the trial court. 24- Let a copy of this judgment be placed in the file of Criminal Appeal No. 94 of 2004. (Nirmal Yadav, J.) (B.C. Kandpal, J.) March 23, 2010 SP