IN THE HIGH COURT OF UTTARANCHAL, NAINITAL. No. 10- COURT’S ORDER WHETHER THE CASE IS OR IS NOT APPROVED FOR REPORTING. [ Chapter VIII, Rule 32(2) (b)] Criminal Appeal No. 52/2002 Bahadur Ram … Appellants. Vs. State .. Respondent. Decided on 05-09-2005 A.F.R. ( Approved for Reporting) Not Approved for Reporting ( Irshad Hussain, J.) (B.S. Verma, J.) Dated: 05-09-2005. In the High Court of Uttaranchal, at Nainital. Criminal Appeal No. 52 of 2002 Bahadur Ram S/o Bachi Ram, R/o Bhital Gaon, P.S. Kotwali Bageshwar, District Bageshwar, at present New Light Tailors, Kanda Parao, District Bageshwar …. Appellant. Vs. State .. Respondent. Sri M.C. Pande, learned counsel for the appellant. Sri H.C. Pande, learned A.G.A. for the State. Coram: Hon’ble Irshad Hussain, J. Hon’ble B.S. Verma, J. Dated: 05-09-2005 (Per: Hon’ble Irshad Hussain, J.) Accused Bahadur Ram stood trials for an offences punishable under Section 302 I.P.C. in sessions trial No. 41/2000; under Section 4/25 Arms Act in sessions trial No.42/2000 and under Section 25 of the Arms Act in sessions trial No. 43/2000. All these sessions trials consolidated and were decided per judgment dated 12-12-2001 by the then Sessions Judge, Bageshwar and the accused was held guilty under all these three counts. He was sentenced to undergo imprisonment for life and fine of Rs. 5000/- under Section 302 I.P.C.; R.I. for six months under Section 4/25 Arms Act and R.I. for three years under Section 25 of the Arms Act. The sentences were directed to run concurrently. 2- According to the F.I.R. lodged at P.S. Kotwali, Bageshwar at 13.10 P.M. on 29-8-1999, by H.C. Ram Kumar Sharma (P.W.5) the then incharge Police Out Post Kanda, accused Bahadur Ram was reported to have committed the murder of his wife Smt. Tulasi Devi at about 11 A.M. the same day in his own shop-cum- residential premises situate in ‘Kanda Parao’. Information of this incident was given to this witness by Mahendra Singh who was running a restaurant across the road and in front of the shop of the accused. Mahendra Singh was stated to have received this information from Ashok Kumar, aged about 15 years, a nephew of accused Bahadur Ram. On this information witness Ram Kumar Sharma immediately reached the place of the occurrence, tailoring shop of the accused which was run under the name and style ‘New Light Tailor, Kanda Parao’, along with said Mahendra Singh, constable Kehav Dutt (P.W.6) and Sunder Singh Gadiya (P.W.4). AT the place of the incident it was found that the front door of the shop of the accused was latched from inside and therefore the witnesses went towards the rear portion of the shop and its door was also found latched. A window of the rear portion was, however, found open and through the window H.C. Ram Kumar Sharma called upon the accused Bahadur Ram, who was inside, to open the door but accused was not cooperating. Witness then peeped inside from the window but accused Bahadur Ram pointed and aimed the barrel of the gun on the said witness and retorted that he will not open the door. The accused was, however, successfully coaxed by the witnesses to have the door of the shop opened. When the witnesses including H.C. Ram Kumar Sharma went inside the shop it was found that Smt. Tulasi Devi, the wife of the accused was lying dead with injuries on her person on the wooden floor of the shop and the accused was then having a gun and a khukri in his hands. Both these weapons were taken from the accused and were kept there in the shop under the supervision and guard of constable Isham Singh and witnesses and accused Bahadur Ram was taken in to custody. H.C. Ram Kumar Sharma then took the accused with him and left for Bageshwar along with constable Keshav Dutt (P.W.6) to report the matter at the police station. In the way accused Bahadur Ram started showing signs of nausea and vomited whereupon the accused was left at Government Hospital, Bageshwar for medical aid in the supervision of constable Keshav Dutt whereas witness H.C. Ram Kumar Sharma reached the Police Station, Kotwali and filed his written report, Ext. Ka.3 regarding this incident. 3- On the basis of the written report, check F.I.R. was drawn and case against the accused was registered under Section 302 I.P.C. Investigation of the case was entrusted to S.O. P.S., Kotwali Inspector Shailendra Bhardwaj who reached the place of the incident and in his supervision got the inquest on the dead body held by A.S.I. Roop Ram Sagar ( P.W.7). The dead body was then sent for post mortem examination which was performed at 1.10 P.M. on 30-8-1999 by Dr. V.K.Manwar. A single barrel gun and khukri were attached from the place of the occurrence. The ornaments form the dead body of the deceased were removed and given in the Supurdagi of Madho Ram ( P.W.2), a brother of the deceased. Statements of the witnesses were also recorded by the Investigating Officer and on completion of the investigation, charge sheet, Ext. Ka.11 under Section 302 I.P.C. was submitted against the accused on 17-9-1999. Charge sheets were also submitted against the accused for offences punishable under Section 4/25 Arms Act as well as under Section 25 of the Arms Act for having possessed without license khukri, the weapon of the assault and a single barrel gun. 4- The accused did not admit the accusations of the prosecution and gave out that he has been falsely implicated in the case by the police after he was picked up from the taxi stand where he had gone to saw off the daughter of his elder brother. He gave out that he was in possession of the shop for the last about 15-20 years and there was move to evict him from it. According to him to attain the said object some one had committed the murder of his wife. 5- As is evident there was no direct evidence of the fatal assault on the person of Smt. Tulasi Devi deceased and the case of the prosecution rests solely on the circumstantial evidence. At the trial, the prosecution examined in all nine witnesses, whereas one witness was examined as a court witness to prove the post mortem report of the deceased. P.W.1, Sundar Singh son of Anand Singh was the witness of attachment of blood stained khukri and gun from the place of the incident and although he admitted his signatures on memo of attachment of sample of blood stained and plain pieces of wood of the floor of the rear portion of the premises, but claimed that these were not seized in his presence and that his signatures were obtained at the police station. He was declared hostile. P.W.2, Madho Ram was the witness of inquest of the dead body of Smt. Tulasi and her ornaments were given in his custody vide memo, Ext. Ka.10. He however gave out that the ornaments were not taken from the person of the deceased in his presence and he was, therefore, declared hostile. He is one of the village brother of the deceased. P.W.3, Ashok Kumar, a 15 years old nephew of the deceased testified that his uncle accused Bahadur Ram and his aunt Smt. Tulasi Devi used to reside together in ‘Kanda Parao’. He could not say as to how the death of his aunt Smt. Tulasi Devi deceased was caused. He was thus declared hostile. P.W.4, Sundar Singh son of Lal Singh is another witness of inquest on the dead body of the deceased. He gave out that the dead body was not sealed in his presence and he was therefore declared hostile by the prosecution. P.W.5, A.S.I. Ram Kumar Sharma was posted as H.C. incharge Police Out Post, Kanda on the relevant date. He is the witness of the fact. He lodged the F.I.R. and proved the prosecution case as narrated in it and reproduced above. He also identified gun, material exhibit-1 and khukri, material exhibit-2 which were in the hands of the accused when the shutters of he shop’s rear portion was opened and he went inside to see the dead body of Smt. Tulasi Devi lying there on the floor with injuries and accused was there with these weapons and was then taken in to custody. P.W.6, constable Keshav Dutt is also another witness of the fact and he also supported the prosecution case as set up in the F.I.R. He had accompanied witness Ram Kumar Sharma and saw the accused in the shop with gun, exhibit-1 and khukri, exhibit-2 and where the dead body of the wife of the accused was found lying with injuries in the shop. He was also posted at Police Out Post, Kanda on that day. P.W.7, S.I. Roop Ram Sagar gave evidence to prove that various steps taken in the investigation by the Station Officer, Inspector Shailendra Bhardwaj and formally proved the site plan, Ext. Ka.4; memo of attachment of blood stained khukri, exhibit-1; memo of attachment of gun, exhibit-9; memo of attachment of samples of blood stained and plain of wood of the floor of the room, Ext. Ka.2 and the statements of the witnesses recorded by the Investigating Officer. He also formally proved the charge sheet, Ext. Ka.11 submitted against the accused under Section 302 I.P.C. The piece of the wood of the floor were also connected as exhibit-3 and exhibit-4 by his evidence. P.W.8, A.S.I. Laxmi Prasad Upadhyaya was posted as Head Moharir, P.W. Kotwali on 29-8-1999 and check F.I.R. was prepared by him on the basis of the written report, Ext. Ka.3 and corresponding G.D. entry No. 25 of the same date and time, that is, 13.10 P.M. was also made by him. He also gave out that A.S.I. Ram Kumar Sharma had told him that the accused Bahadur Ram was left at the hospital for treatment. After registration of the case the relevant papers were sent to the Investigating Officer Inspector Shailendra Bhardwaj who had already left the police station in connection with official duty. On return to the police station the Investigating Officer deposited the case property including the khukri and gun in sealed packets at the police station and relevant G.D. entry No.44 of the same date and time 19-30 was made by him. He also testified that the Investigating Officer before returning to the police station also visited the hospital and the entry in that regard was made in G.D. at report No. 46 of 20-30 dated 29-8-1999. P.W.9, constable Bahadur Singh proved that the case property in sealed packets were entrusted to him on 9-10-1999 to be taken to government lab, Agra where the packets were delivered on 11-10-1999 as such and the seals were not tampered with during the period when the sealed packets remained in his custody. 6- Court witness Jagdish Chand Joshi ( C.W.1) was posted As Pharmacist in C.H.C., Bageshwar on 30-10-1999 when the post mortem on the dead body of Smt. Tulasi was conducted in his presence by the Medical Officer, Dr. V.K. Manwar. He brought the original post mortem register and formally proved the post mortem report, Ext. Ka.12. Dr. Manwar was seriously sick and this was the reason that this witness was examined to prove this part of the evidence of the prosecution. During the appeal it was also reported by the learned A.G.A. that Dr. V.K. Manwar had died due to his ailment on 31-7-2004 and copy of the death certificate dated 19-8-2004 was also brought on record. As per the post mortem report, Ext. Ka.12 the ante-mortem injuries detected were as below:- 1- Incised wound 4.2 cm x 1.2 cm x scalp deep, on the left side of temporal region. 2- (i) Incised wound, 3.2cm x 1.4cm x muscle deep, (ii) Incised wound, 3.2 cm x 1.2 cm x muscle deep, on the back of left side chest and the distance between these two incised wounds 2.4 cm. 3- (i) Incised wound, 4 cm x 2cm x bone deep, (ii) Incised wound 4.2cm x 1.4cm x muscle deep, On the back of right side of chest. The distance between the two injuries 2.8 cm. 4- Incised cut injury on left middle, little and ring fingers. 5- Multiple incised injuries five in number on the left Side of wrist joint (dorsal). On Internal examination both the lungs were found congested. Left ventricle of the heart was empty and right was full of blood. There was about half cup of semi liquid fluid in the stomach. Small and large intestines were distended with gases. The death of the deceased was caused due to haemorrhagic shock as a result of excessive bleeding. Rigor-mortis was found present in the dead body. 7- No evidence was adduced in the defence by the accused. 8- Placing reliance on the evidence and considering the entire material on record the trial court found the accused guilty and convicted him as aforesaid. In coming to the said conclusion, the trial court noticing the fact that prosecution case was based on circumstantial evidence, came to the conclusion that the following circumstance were clearly established by the prosecution against the accused. They are :- (1) The accused and his wife Smt. Tulasi Devi deceased were lying together in the accused’s shop-cum- residential premises in ‘Kanda Parao’ the place of the occurrence. (2) On the day of the occurrence Smt. Tulasi Devi was seen alive with the accused in the premises before the occurrence. (2) Accused alone was present in the said premises which was locked from inside and where the dead body of Smt. Tulasi Devi was lying on the floor with injuries. (4) A blood stained khukri, material exhibit-2 was attached from the said premises and the incised injuries sustained by Smt. Tulasi Devi deceased were attributable to this weapon. (5) Smt. Tulasi Devi sustained multiple incised injuries, which were possible only when she was kept confined in the shop unprotected and was assaulted by khukri wielding assailant present there in the said premises. (6) The murder was committed in the rear portion of the said premises so that nobody can easily notice screaming sound of the victim. (7) Accused gave false explanation that he was not there in the said premises at the time of the incident and was arrested from the bus station where he had gone to saw of his niece. 9- Sri M.C. Pande, learned counsel appearing on behalf of the accused pressed in to service his submissions to assail the propriety of the judgment under appeal. According to him the prosecution has miserable failed to prove the incriminating circumstances and also the chain thereof to bring home the guilt of the accused. Learned counsel contended that although there can be no doubt that the death of Smt. Tulasi Devi was homicidal but this could not be an incriminating circumstance against the accused unless the accused so connected with the homicidal death. He pointed out that there was absolutely no independent evidence regarding the presence of accused and his wife Smt. Tulasi Devi together near about the place of occurrence in their shop-cum- residential premises and it was an important factor that even Mahendra Singh, the owner of the restaurant situate in front of the said premises and who was said to have given the information of the murder of the deceased by the accused was not examined by the prosecution in evidence and whereas the witness Ashok Kumar ( P.W.3), a nephew of the accused, who was stated to have given the information to Mahendra Singh, was declared hostile by the prosecution as he has not supported the claim of the prosecution that the murder was committed by the accused. Learned counsel assailed the evidence of police witnesses Ram Kumar Sharma ( P.W.5) and Keshav Dutt ( P.W.6) suggesting that both of them were interested witnesses in the sense that they were material contradictions in the evidence of both these witnesses, which warranted an inference that both of them were not reliable witnesses. Learned counsel also came very heavily on the so called recovery of the blood stained khukri ,alleged weapon of the assault and also a gun from the accused and further pointed out that the prosecution had not been able to connect the recovered khukri to the offence and the accused. He pointed out that the investigation was defective and there was no credible evidence regarding the motive to commit the crime by the accused. Conviction under the provisions of the Indian Arms Act was assailed on the grounds that neither the notification prohibiting carrying or possession of khukri was produced before the Sessions Judge nor the legal sanction as envisaged under Section 39 of the Arms Act to prosecute the accused for possessing an unlicensed gun was proved by the prosecution and the accused therefore could not have been convicted for the offences punishable under Section 4/25 and Section 25 of the Arms Act. 10- As against this, learned A.G.A. supported the judgment of the trial court and urged that the prosecution had completed the chain of circumstance that established the offence against the accused beyond any reasonable doubt. Learned A.G.A. came out with the argument that the deceased was lastly alive in the company of the accused in the said premises and that none other than the accused could only have been able to commit the murder of the victim and therefore the incriminating circumstances appearing against the accused were very vital and connect him with the offence with which he was charged. According to him the evidence of police witnesses could legally be placed on the same footing as the evidence of a public witness and the evidence of police witnesses on being found credible on careful scrutiny could legally be made basis of conviction of the culprit and that the trial court made no error in placing reliance on the evidence of P.W.5 and P.W.6 in coming to the conclusion that accused was arrested from the said premises where the dead body of his wife Smt. Tulasi Devi deceased was found lying with injuries and the weapon of assault, khukri was also attached from the place of the incident. Therefore, trial court was justified in convicting and sentencing the accused for the offence of murder committed by him. 11- On this backdrop, we have to see whether any offence can be said to have been established and proved against the accused so as to convict and sentence him per judgment under appeal. 12- There can be no doubt that Smt. Tulasi Devi died a homicidal death. The post mortem was conducted by Dr. V.K. Manwar and his post mortem examination report, Ext. Ka.12 was proved by the evidence of court witness Jagdish Chand Joshi (C.W.1) who was posted as a pharmacist with the medical officer in C.H.C., Bageshwar on 30-10-1999 when the post mortem examination on the dead body was conducted in his presence. It was proved by him that Dr. V.K. Manwar was seriously ill and it has come on record that he had also later on died due to his ailment. The secondary evidence was thus admissible in evidence under the provisions of the Indian Evidence Act, 1872. The medical officer categorically endorsed in the said post mortem report that the deceased sustained ante-mortem injuries, which have been reproduced in the earlier part of the judgment and that the death was due to haemorrhagic shock as a result of excessive bleeding from the ante-mortem injuries. At the time of the post mortem examination rigor-mortis was present in the corpse which indicate that the death probably occurred about a day ago. The post mortem was conducted at 1.10 P.M. on 30-8-1999 and according to the prosecution the murder was committed at about 11 A.M. on 29-8-1999 and therefore the medical evidence amply corroborate the prosecution case about the time of the occurrence. There is no dispute that the murder was committed in the shop- cum-residential premises of the accused situate in ‘Kanda Parao’ and this was the reason that the accused also said in his statement under Section 313 of the Code of Criminal Procedure that the murder of his wife was committed in his absence with the object to seek his eviction form the said premises. In other words there can be not gain saying that it is established that the murder of Smt. Tulasi Devi was committed at about 11 A.M. on 29-8-1999 in accused’s shop-cum-residential premises in ‘Kanda Parao’, District Bageshwar. 13- The circumstances mentioned at serial Nos. 1 and 2 could be taken together since the evidence in this behalf is common. Defence did not dispute the case of the prosecution that accused and his wife Smt. Tulasi Devi deceased were living together in the accused’s shop-cum-residential premises in ‘Kanda Parao’ , the place of the occurrence. In this regard, there is also categorical statement of witness Ashok Kumar ( P.W.3), a 15 years old real nephew of the accused. He gave out that his uncle, the accused and aunt Smt. Tulasi Devi were residing together in the said premises. As regards the circumstance that on the day of the occurrence also Smt. Tulasi Devi was seen alive with her husband, the accused in the said premises some time before the occurrence, it is also satisfactorily established by the evidence of this witness although he tried to help his uncle, the accused and had to be declared hostile by the prosecution. On being cross- examined by the D.G.C. (Criminal) on behalf of the prosecution, the witness Ashok Kumar gave out that his ‘Nanihal’ is situate in Dola Gaon and on the day when is aunt ( Smt. Tulasi Devi deceased) died he went to his ‘Naniha’ from his village Bhital Gaon. He stated that on that day he went to Dola Gaon via village Kanda and on that day his uncle, the accused and aunt Smt. Tulasi Devi both were in Kanda. The statement so given by the witness was definite and categorical and on this account he became conscious of it in the next breath again tried to help his uncle, by stating that on that day, he however, had not visited the house of his uncle. Learned counsel appearing on behalf of the accused submitted that the shaky evidence of this witness was not worthy of consideration and particularly when the witness was declared hostile by the prosecution. We see no merit in this argument because it is well settled that in appropriate cases the court can rely upon the part of the testimony of a hostile witness if that part of the deposition is found to be trustworthy. In the instant case although witness Ashok Kumar was declared hostile by the prosecution and was cross-examined on permission by the court it became evident that he merely tried to help his real uncle, the accused by resiling from his stand and statement given to the Investigating Officer but on being cross-examined gave evidence to the effect that on the day of the occurrence he went to the house of his uncle and found the accused with his aunt Smt. Tulasi Devi in the shop-cum-residential premises in Kanda and at that time Smt. Tulasi Devi was alive. The witness later on merely wanted to resile from this categorical statement which does not make any difference so for as his evidence in regard to the said incrimination circumstance is concerned. In other words the entire testimony was not unworthy of consideration and full reliance on his above part of evidence could safely be placed to draw a positive inference that on the day of the occurrence Smt. Tulasi Devi was alive in the company of her husband, the accused, in the said premises. Thus the presence of accused and his wife Smt. Tulasi Devi while she was alive before the actual occurrence of her murder in the said premises, stand established beyond doubt. 14- We will now