IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 966 of 2001 Prem Lal s/o Sri Gainu Lal R/o Village Nakot, Patwari Circle Augustyamuni Tehsil Rudraprayag, District Rudra Prayag. ...…………. Appellant (in jail) Versus The State ...…………. Respondent Mr. Vinod Sharma, Advocate for the appellant. Mr. H.C. Pujari, Addl. Govt. Advocate for the respondent-State. Coram : Hon’ble Prafulla C. Pant, J. Hon’ble B. S. Verma, J. Hon. Prafulla C. Pant, J. (Oral) This appeal, preferred under Section 374 of the Code of Criminal Procedure, 1973, (for short Cr.P.C.) is directed against the judgment and order dated 11.05.2001, passed by learned Sessions Judge, Radraprayag, in Sessions trial No. 03 of 2001, whereby the accused / appellant Prem Lal has been convicted under Section 302 of the Indian Penal Code, 1860 (hereinafter referred as I.P.C.), and sentenced to imprisonment for life. 2) Heard learned counsel for the parties and perused the lower court record. 2 3) Prosecution story, in brief, is that Madan Lal (deceased), resident of village Bawai, and accused / appellant Prem Lal were friends. They used to work together. They were also related to each other as their wives were cousins. On 02.10.2000, accused / appellant Prem Lal went to the house of Madan Lal (deceased). They took meals together, and went on the first floor of the house. Sushila Devi (P.W. 2), wife of the deceased, started cleaning the utensils in the ground floor. She heard some noise from the first floor of the house. After completing her work she went upstairs and saw accused / appellant Prem Lal riding on the chest of the deceased, strangulating his neck with a rope. It was around 09:00 P.M. Sushila Devi (P.W. 2) atempted to raise alarm, but accused / appellant Prem Lal scolded her, took her to ground floor, and locked her in a room. Next morning, when in her neighbourhood her sister-in-law returned to her house, she (P.W. 2) shouted for help. On this, Maheshi Devi (P.W. 3), sister-in-law (DEVRANI) of Sushila Devi (P.W. 2), opened the bolt, where after, she went again upstairs and saw her husband lying dead. Thereafter, she narrated the incident to the villagers. Information was sent by villagers to Harsh Lal (P.W. 1), complainant, who was younger brother of the deceased and had gone to village Urkholi. He reached his village around 09:00 A.M. (on 03.10.2000). He lodged the first information report (Ext. A –1) with Patwari of 3 patwari circle Maykoti, which was registered as crime No. 06 of 2000, relating to offence punishable under Section 302 of I.P.C. against accused / appellant Prem Lal. (In the interior hills of Uttarakhand, certain Revenue Officials are given police powers, under U.P. Government Notification No. 494 / VIII –418 –16 dated 7th March 1916). Kunwar Singh Sirwan (since deceased), Patwari of the area, took up the investigation of the matter. He made necessary entries in the general diary and proceeded to the spot. Kunwar Singh Sirwan, Patwari and Investigating Officer, took the dead body of Madan Lal in his possession and prepared inquest report (Ext. A –3). He also prepared sketch of the dead body (Ext. A –8); police form No. 13 (Ext. A –7) and other necessary papers. He got the dead body sent in a sealed cover for postmortem examination. Dr. Anupam Chaturvedi (P.W. 4) conducted the postmortem examination on 04.10.2000, at 01:00 P.M. of the dead body of Madan Lal, and prepared autopsy report (Ext. A –2). The Medical Officer found ligature mark of size 36 cm X 1 cm around neck of the deceased. He also found that there was bleeding from both the nostrils and mouth of the deceased. After autopsy, the Medical Officer opined that the deceased had died of asphyxia as a result of strangulation. The Investigating Officer meanwhile, prepared site plan (Ext. A –6) and recovered the rope used in the crime. After interrogating the witnesses and completing the 4 investigation, he submitted charge sheet (Ext. A –9) against accused / appellant Prem Lal, for his trial in respect of offence punishable under Section 302 of I.P.C. 4) The Chief Judicial Magistrate on receipt of the charge sheet, after giving necessary copies to the accused, as required under Section 207 of Cr.P.C., committed the case to the court of Sessions, for trial. Learned Sessions Judge, Rudraprayag, after hearing the parties, framed charge of offence punishable under Section 302 of I.P.C. against the accused / appellant Prem Lal, on 23.02.2001. The accused Prem Lal pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1 Harsh Lal (complainant); P.W. 2 Sushila Devi (widow of the deceased); P.W. 3 Maheshi Devi (sister-in-law of the deceased); P.W. 4 Dr. Anupam Chaturvedi (who conducted the postmortem examination); P.W. 5 Rakesh (son of the deceased); P.W. 6 Mathuri (who witnessed preparation of inquest report) and P.W. 7 Dwarika Prasad Bhatt, Naib Tehsildar (who proved documents prepared by the Investigating Officer, as the Investigating Officer had died on 18.12.2000). The oral and documentary evidence was put to the accused under Section 313 of Cr.P.C., in reply to which he alleged the evidence adduced by the prosecution as false. However, he (accused / appellant) admitted that in the 5 fateful night he was in the house of the deceased, and remained there during the night. No evidence was adduced in defence. The trial court, after hearing the parties, found accused / appellant Prem Lal guilty of the charge of offence punishable under Section 302 of I.P.C. After hearing on sentence, the convict was sentenced to imprisonment for life. Aggrieved by said judgment and order dated 11.05.2001, passed by the Sessions Judge, Rudraprayag, in Sessions Trial No. 03 of 2001, this appeal is filed by the convict Prem Lal. 5) Before further discussion, we think it just and proper to mention here the ante mortem injuries recorded by P.W. 4 Dr. Anupam Chaturvedi, at the time of postmortem examination on the dead body (of Madan Lal), who prepared autopsy report (Ext. A –2). The ante mortem injuries recorded in the autopsy report are being reproduced below: 1. Bleeding from both nostrils and mouth. 2. Ligature mark is well defined and slightly depressed, situated above the thyroid cartilage, and encircling the neck horizontally and completely. Size 36 cm X 1 cm. On internal examination, the Medical Officer found larynx and trachea congested containing frothy mucus. He also found larynx and trachea fractured. The Medical Officer opined that the deceased had died 6 of asphyxia as a result of strangulation. Statement of P.W. 4 Dr. Anupam Chaturvedi read with the autopsy report (Ext. A –2) establishes on the record that the deceased had died homicidal death. Now, this Court has to see whether, accused / appellant Prem Lal has committed murder of Madan Lal, or not? 6) P.W. 1 Harsh Lal, brother of the deceased, is complainant in this case. He has stated that his brother Madan Lal (deceased) and accused / appellant Prem Lal used to work together for 10-11 years. P.W. 1 Harsh Lal, who is a carpenter by profession, has stated that on the fateful day he had gone to village Urkholi in the house of one Darshan Singh in connection of his work. On 03.10.2000, in the morning he got information from two boys Rajendra and Deen Dayal of his village that Madan Lal has died. On this, he rushed to his village Bawai. He saw that his sister-in-law Sushila (P.W. 2) was wailing. His brother Madan Lal was lying dead. The witness (P.W. 1) further told that his sister-in-law (BHABHI) Sushila (P.W. 2) told him that accused / appellant Prem Lal has killed Madan Lal. The witness has further stated that thereafter he got scribed first information report (Ext. A –1) with the help of one Mohan Lal and gave it to the Patwari of the area. P.W. 1 Harsh Lal lastly told that a rope was recovered from the site where dead body of Madan Lal was lying, by the Patwari (Investigating Officer). In the cross- examination he told that accused / appellant Prem Lal 7 had good relations with Madan Lal. This witness has further stated that he (P.W. 1) and his brother Madan Lal used to live in the same house but separately, and they had separate kitchens. 7) P.W. 2 Sushila Devi, widow of the deceased, is the star witness, as she is the sole eyewitness of the incident. She states that accused / appellant Prem Lal is husband of her cousin sister. She further told that Madan Lal (deceased) and Prem Lal (accused / appellant) used to work together by taking goods in ponies in the nearby villages. They were together working for more than 12 years. On the day of incident, according to this witness, accused / appellant Prem Lal had come to her house. She further states that on that day Harsh Lal (P.W. 1) had gone away from village in connection with his work. The witness (P.W. 2) further states that during daytime the two (Madan Lal and Prem Lal) had drinks together. In the evening (02.10.2000) she (P.W. 2) prepared meals and provided it to her husband Madan Lal and accused / appellant Prem Lal. After having meals, the witness states that the two (Madan Lal and Prem Lal) went upstairs in the house. She (P.W. 2) started cleaning utensils. Her two younger children were sleeping in the ground floor. She heard noise from upstairs. After finishing her work, she went upstairs and saw that accused / appellant Prem Lal had grounded Madan Lal, and was 8 pressing his neck with a rope. P.W. 2 Sushila Devi further states that she tried to raise alarm but accused / appellant Prem Lal scolded her and took her to the ground floor, and locked her in a room. She further told that the accused threatened her of dire consequences if she dared to raise alarm. P.W. 2 Sushila Devi further states that in the morning she called her sister-in-law Maheshi Devi (P.W. 3), who had come back in her house. She (P.W. 3) came to the house of Sushila Devi (P.W. 2) and opened the bolt. Thereafter, according to P.W. 2 Sushila Devi, she again went upstairs and saw her husband lying dead. She further states that she started wailing. P.W. 2 Sushila Devi has told that the villagers started gathering and sent information to her brother-in-law Harsh Lal (P.W. 1) in village Urkholi, who came and lodged the first information report with the Patwari. In the cross- examination of this witness nothing has come out which creates doubt in his testimony. She has stated in the cross examination that her husband (Madan Lal) and brother-in-law (Harsh Lal) used to live separately and they had separate kitchens in the house. She has further stated that other persons who used to live in the neighbourhood were away from the house of this witness and it was not possible for the neighbours to hear her voice from her house. 8) P.W. 3 Maheshi Devi has also corroborated the prosecution story. She is sister-in-law (DEVRANI) of 9 Sushila Devi (P.W. 2). This witness has stated that since on the day of incident her husband had gone away from the village she had gone to her uncle’s house and returned back only in the morning. The witness further states that she heard her sister-in-law (JETHANI) Sushila calling her and she opened her door (from outside). She (P.W. 3) further states that Sushila Devi told her that she was locked by accused / appellant Prem Lal. She further states that Sushila Devi disclosed in the morning to her and other villagers that her husband Madan Lal has been killed by accused / appellant Prem Lal. In the cross-examination of this witness also, nothing has come out which creates doubt as to the truthfulness of the story narrated by her. 9) P.W. 5 Rakesh is elder son of Madan Lal (deceased). He sates that on 02.10.2000, when accused / appellant Prem Lal came to his house, he asked him (P.W. 5) and his brother Suresh Lal to take the ponies from Augustyamuni. The witness states that on 03.10.2000, at about 07:00 A.M., accused / appellant Prem Lal met him and when he asked about his father he told that he (Madan Lal) was unwell. Thereafter, according to this witness (P.W. 5) he came to village around 09:00 A.M. and saw his father lying dead, and his mother wailing. P.W. 5 Rakesh is a young boy aged 15 years. P.W. 6 Mathuri is the witness of preparation of inquest report who has stated that on 03.10.2000, around 02:00 P.M., Patwari of the area came to village 10 Bawai, and after taking dead body of Madan Lal in his possession prepared inquest report (Ext. A –3). This witness has further stated that rope was also recovered by the Patwari in his presence and memorandum (Ext. A –4) was prepared. Testimony of these two witnesses further corroborates the testimony of eyewitness P.W. 2 Sushila Devi. The statement of Sushila Devi gets full corroboration from the medical evidence on record. 10) On reading the oral evidence adduced by the eyewitness Sushila Devi which is supported by P.W. 3 Maheshi Devi and P.W. 5 Rakesh, in our opinion, there is nothing which creates doubt in their testimony which is fully corroborated by the postmortem examination report (Ext. A –2) prepared by P.W. 4 Dr. Anupam Chaturvedi. Having re-assessed the evidence on record, we concur with the trial court that the prosecution has successfully proved that accused / appellant Prem Lal has strangulated his friend Madan Lal, who died of asphyxia as a result of strangulation. 11) Learned counsel for the accused / appellant drew attention of this Court to Exception 4 of Section 300 of the Indian Penal Code, 1860, which reads as under: “Exception 4. –Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having 11 taken undue advantage or acted in a cruel or unusual manner.” It has come on the record that accused / appellant Prem Lal and Madan Lal (deceased) were friends. They were working together in their profession for more than 12 years. Not only this, they were related to each other, as their wives were cousins. It is also established on the record that on 02.10.2000, accused / appellant Prem Lal came in the house of Madan Lal and they had meals together. In his statement under Section 313 of Cr.P.C., accused / appellant Prem Lal himself has admitted that he was in the house of Madan Lal in the intervening night of 2nd and 3rd of October 2000. It has been stated by P.W. 2 Sushila Devi herself that after the two namely Prem Lal and Madan Lal took their meals together and went upstairs, they started quarrelling. The incident had taken place around 09:00 P.M. By the time P.W. 2 Sushila Devi went upstairs, accused / appellant Prem Lal was strangulating neck of Madan Lal. In the above circumstances, it can be safely said that the act on the part of the accused / appellant Prem Lal is culpable homicide not amounting to murder as death of Madan Lal has been caused by Prem Lal without premeditation in a sudden fight in the heat of passion upon a sudden quarrel. That being so, we are of the view that the charge proved against accused / appellant Prem Lal by the prosecution is covered by 12 Section 304 Part I, and not the one punishable under Section 302 of I.P.C. 12) Therefore, we are of the view that this appeal deserves to be allowed partly. The conviction and sentence recorded by the trial court against accused / appellant Prem Lal is modified, and he is convicted under Section 304 Part I of I.P.C. He stands acquitted of charge of offence punishable under Section 302 of I.P.C. The sentence awarded to him under said Section is also set aside. Accused / appellant Prem Lal is sentenced to rigorous imprisonment for a period of ten years under Section 304 Part I of I.P.C. The period already undergone by the accused / appellant during investigation, trial and pendency of this appeal shall be set off against the period of rigorous imprisonment for ten years to which he is sentence by this Court. Let a copy of this judgment be sent to the Superintendent of Jail concerned where the accused / appellant is serving out the sentence. Lower court record be sent back. (B.S. Verma, J.) (Prafulla C. Pant, J.) Dt. July 23, 2009. H. Negi