COURT’S ORDER WHETHER THE CASE IS OR IS NOT APPROVED FOR REPORTING {Chapter VIII, Rule 32(2)(b)} Description of the Case. CRIMINAL APPEAL No. 487 of 2001 (Old No. 1753 of 1990) Jagdish Lal S/o Mathura Misra, R/o Village Dohil, P.S. Joshimath, Distt. Chamoli (Gopeshwar) ………….Appellant Versus The State ….... Respondent Sri Rakesh Thapliyal & Sri Lalit Sharma, learned counsel for the appellant Sri Amit Bhatt, Addl. G.A. and Sri M.A. Khan, learned brief holder for the State/respondent Approved for reporting. Not approved for reporting. Date: June 29, 2007 (J.C.S. Rawat, J.) (Dharam Veer, J.) RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No. 487 of 2001 (Old No. 1753 of 1990) Jagdish Lal S/o Mathura Misra, R/o Village Dohil, P.S. Joshimath, Distt. Chamoli (Gopeshwar) ………Appellant Versus The State …… Respondent Dated: June 29, 2007 Sri Rakesh Thapliyal & Sri Lalit Sharma, learned counsel for the appellant Sri Amit Bhatt, Addl. G.A. and Sri M.A. Khan, learned brief holder for the State/respondent Coram: Hon’ble J.C.S. RAWAT, J. Hon’ble DHARAM VEER, J. PER HON’BLE DHARAM VEER, J. This appeal, preferred under Section 374(2) of Code of Criminal Procedure 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 04.09.1990 passed by Sessions Judge, Chamoli (Gopeshwar), in Session Trial No.29 of 1989, State Vs. Jagdish Lal, whereby the learned Sessions Judge has convicted the appellant for an offence punishable u/s 302/376 of Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and awarded sentence u/s 302 IPC for life term imprisonment and u/s 376 IPC for 10 years R.I. Both the sentences were directed to run concurrently. 2. In brief, the prosecution story is that Basant Lal has lodged a First Information Report in the Police Station, Joshimath, District Chamoli with the allegations that on 11.3.1989 at about 6:00 A.M., when he was in his in-laws house in village Ravigram, there his younger brother Roshan Lal came and informed him that his mother Chandri Devi has gone to the last night about 10-11 P.M. from the house for easing out, but she did not come back home up till the morning. Then, in the morning, he saw that she was lying near the apple tree in the west of his house. On this information, he went his house along with his brother running and saw that from the some distance of his house near the apple tree, his mother Chandri Devi was lying in a dead condition. The dead body was naked from the lower side of the waist. For that reason, he had spread a Dhoti in the naked portion of his mother and that Dhoti was pressed by stones. After seeing the condition of his mother, he was confident that somebody has committed wrong with his mother and thereafter she was murdered. It was also stated that his mother was having illicit relation with Jagdish for the reason that his mother was living along with Jagdish before last four years and from the last 4 months before the incident, his mother had come to the house of Basant Lal and she was living there with him. It was further stated that he has a doubt that his mother was murdered by Jagdish. For the said allegations, he lodged the FIR at 7:35 A.M. on 11.3.1989 at P.S. Joshimath, that FIR is Ex.Ka-1. On the basis of this FIR, a Chik FIR was prepared by Constable Clerk Balbir Singh, that Chik FIR is Ex.Ka-9. The entry was made in the G.D., the copy of G.D. is Ex.Ka-10. The investigation of the case was entrusted to Station Officer, Jauhri Lal, P.S. Joshimath. The inquest report of the dead body of Smt. Chandri Devi was prepared on 11.3.1989, that inquest report is Ex.Ka-12. The I.O. has also prepared a Form No.13, i.e. Ex.Ka-23. The Photo lash of the dead body is Ex.Ka-17, Seal Mohar is Ex.Ka- 18, letter written to SMO, Gopeshwar, Chamoli is Ex.Ka-19 and letter written to CMO, District Hospital, Gopeshwar, Chamoli is Ex.Ka-20. After that the dead body was sent for the post-mortem and the post-mortem of the dead body was conducted on 12.3.1989 at 12:05 P.M. by Dr. A.K. Dwivedi, the post-mortem report is Ex.Ka.8. The Investigating Officer has also prepared the site plan of the place of occurrence on 11.3.1989, i.e. Ex.Ka-11. He has also taken in his possession the ‘Peticoat’ of the deceased on 11.3.1989 and a recovery memo Ex.Ka-13 was prepared. During the investigation, appellant Jagdish has given a statement of extra judicial confession before the P.W.4 Chatru Lal on 12.03.1989. The statement of the Chatru Lal was recorded by the Investigating Officer on 13.3.1989. The appellant was arrested on 14.03.1989. The site was inspected by the Investigating Officer on the pointing out of the appellant Jagdish and the memo for the inspection of the place of occurrence was prepared, that is Ex.Ka.6. After the arrest of the appellant, he was medically examined by the Medical Officer, Swasthya Kendra, Joshimath on 14.3.1989 at 7:20 P.M., the medical report prepared by Medical Officer is Ex.Ka-7. Ex.Ka- 14 is the copy of the G.D. dated 14.3.1989. The I.O. has also prepared the map on the pointing out of the appellant Jagdish, i.e. Ex.Ka-15. He has also prepared a Fard Ex.Ka-16 for taking into possession the N.C.R. No.58/87 u/s 323/504/506 IPC dated 17.6.1987 lodged by deceased Smt. Chandri Devi against the appellant Jagdish, his father Mathura Lal and his mother Smt. Bindra. He has also taken in his possession the underwear of the appellant Jagdish on 14.3.1989 and a Fard was prepared, that Fard is Ex.Ka-22. During the course of investigation, he has recorded the statements of the witnesses and the witnesses were also examined u/s 164 Cr.P.C. before Sub-Divisional Magistrate, Joshimath. The statement of the Jamni Mistri recorded u/s 164 Cr.P.C. is Ex.Ka-2, the statement of Roshan Lal recorded u/s 164 Cr.P.C. is Ex.Ka-3, the statement of Santosh Lal recorded u/s 164 Cr.P.C. is Ex.Ka-4, the statement of Chatru Lal record u/s 164 Cr.P.C. is Ex.Ka-5. The copy of the G.D. in which the entry was made in the NCR No.58/87 dated 17.6.1987, was taken into possession by the I.O. is Ex.Ka-25 and the carbon copy of the said NCR is Ex.KA-26. After completing the investigation, the I.O. has submitted the charge sheet against the appellant u/s 302/376 IPC, that charge sheet is Ex.Ka-24. 3. The learned CJM, Chamoli has committed the case to the court of Sessions on 15.12.1989 u/s 209 Cr.P.C. after complying with the provisions of Section 207 Cr.P.C. 4. The learned Sessions Judge, Chamoli has framed the charge against the appellant Jagdish Lal on 6.2.1990 for the offence punishable u/s 376 and 302 IPC. The charge was read over and explained to the appellant who pleaded not guilty and claimed to be tried. 5. To prove its case, the prosecution has examined P.W.1 Basant Lal, P.W.2 Roshan Lal, P.W.3 Santosh Lal, P.W.4 Chatru Lal, P.W.5 Arvind Singh Hayanki, SDM, Joshimath, P.W.6 Mohan Lal, P.W.7 Jamni Lal, P.W.8 Dr. S.D. Uniyal, P.W.9 Dr. A.K. Dwivedi, P.W. 10 S.O. Jauhari Lal and P.W. 11 S.O., Nakli Singh. 6. After that the statement of the appellant was recorded u/s 313 Cr.P.C. who has denied the allegations made against him, but he did not produce any oral or documentary evidence in the defence. 7. After appreciating the evidence on record, the learned Sessions Judge, Chamoli (Gopeshwar) vide his judgment and order dated 04.09.1990 has convicted appellant Jagdish Lal for an offence punishable u/s 302/376 IPC and awarded sentence u/s 302 IPC for life term imprisonment and u/s 376 IPC for 10 years R.I. Both the sentences were directed to run concurrently. Against the said judgment and order dated 04.09.1990, the appellant Jagdish Lal has preferred the present appeal before this Court. 8. We have heard Sri Rakesh Thapliyal & Sri Lalit Sharma, learned counsel for the appellant and Sri Amit Bhatt learned Addl. G.A. and Sri M.A. Khan, learned brief holder for the State and perused the entire material available on record. 9. To prove its case, the prosecution has examined P.W.1 Basant Lal, who is the complainant of the case and also the son of deceased Chandri Devi. He has stated that deceased Chandri Devi was his mother and his father had died 10 years before the said incident and they were three brothers. Appellant Jagdish Lal is his uncle in relation and he was not married and he was also living in his village Dauril Tok. After the death of his father, his mother Chandri Devi was living with Jagdish since last 5 years in the house of Jagdish and from appellant Jagdish, girl Babita was also born. The age of Babita is four years. Jagdish Lal had started to beat Chandri Devi and for that, a complaint was made by her to his younger brother Biraj Lal. Then Biraj Lal has taken his mother along with Babita in his house and before the incident, Chandri Devi had come to his house 4 months back. His brother Biraj Lal was serving in Delhi. The said incident was happened on 10.3.1989 when he had gone to his in-laws house in Ravigram. His children were in his in-laws house. In his house in village Dauril Tok on that day, his mother, his younger brother Roshan Lal and Km. Babita were there. His younger brother Roshan Lal had come to him on 11.3.1989 at 6:00 A.M. and he has informed him that his mother Chandri Devi was lying dead near the apple tree. Then he along with his brother Roshan Lal had come in village Dauril Tok and there he saw his mother was lying dead. Then with some other people, he went to P.S. Joshimath which is 4-5 Kms. away from his house. Then he dictated FIR to Bijendra Lal and thereafter he has signed on the report, that report is Ex.Ka-1. Then along with police, he had come to the spot. His brother Roshan Lal had told him that his mother on the night of the incident had gone for easing out but she did not come back and on the next day morning, he saw his mother in the dead condition. She was in a half-naked condition. The inquest report was prepared and he has also signed on the inquest report. At the time of the inquest, he has seen the sign on the neck of strangulation. This witness was cross-examined at length but nothing has come out which may create any doubt in his evidence. The evidence of this witness is trustworthy, reliable and natural. 10. P.W.2 is Roshan lal who is also the son of Chandri Devi, who was the student to Class V. Some questions were asked by the Sessions Judge form him to examine whether he is in a condition to give the evidence or not. After asking the questions and recording the answers, the Sessions Judge has observed that this witness was a competent witness to give the evidence. This witness has stated that Chandri Devi, deceased was his mother and she had got three sons. The first one is Basant Lal, another is Biraj Lal and he is the third one (Roshan Lal). His father had died before 8- 10 years and appellant Jagdish is his uncle in relation. After the death of his father, his mother was living with Jagdish since last 4-5 years. Due to this relation, his mother had delivered a girl namely Babita and Babita is 4-5 years old at the time of incident. Before 4-5 months of the incident, his mother had started to live with them. The incident was said to be taken place on 10.3.1989. On the date of the incident, he along with his mother deceased Chandri Devi and Km. Babita were at home. His elder brother Basant Lal has gone in his in-laws house at Ravigram. On the same night, appellant Jagdish had come to his house and he has asked form him about his elder brother Basant Lal and then he had told him that he had gone to his in-laws house. After that appellant Jagdish had gone from there. After the going of Jagdish, his mother told him that she had to go for easing out and then he had told that he will also go with her. Then his mother had told him to live there along with Babita at the house and after that she had gone. When she did not come to the house in the night, then with the Kerosene Oil, he has burned a Mashal and on that light after taking Babita in his back, he had gone to the house of his aunt Prema. There he had told his aunt that his mother had gone for the easiness long back but she did not come back and appellant Jagdish had come to his house before some time and asked about Basant Lal. Then he had come along with his aunt and he had tried to search his mother but he could not get her. After that, he and Babita were slept in the house of her aunt. On the next day morning, he searched his mother and then he saw that his mother was lying dead under the apple tree. Then he had gone to Basant Lal and had told him that his mother had died. After that Basant Lal and he had come on the spot. This witness was cross-examined at length but nothing has come out which may create any doubt in his evidence. The evidence of this witness is trustworthy, reliable and natural. 11. P.W.3 is Santosh Lal who belongs to the same village of Dauril Tok. He has stated that Jagdish lal was known to him and he was living in the same village of Dauril Tok and in relation, Jagdish Lal is his uncle. On 10.3.1989, his uncle Jamni had come and he had gone from his house about 10:00 P.M. after taking dinner and after that he had slept. After sometime, the dogs started barking and then he came out from his house and he saw one person going upwards near his house. He asked from that person about him and then his person said that “I am” and this person was identified by him as Jagdish (appellant). Then Jagdish Lal had gone upwards. This witness was also cross-examined at length but nothing has come out which may create any doubt in his evidence. The evidence of this witness is trustworthy, reliable and natural. 12. P.W.4 is Chatru Lal who belongs to the same village Dauril Tok. Before him, appellant Jagdish Lal had given a statement (extra judicial confession) on 12.3.1989. This witness has stated that the deceased Chandri Devi was known to him. She was living in Village Dauril Tok along with his children and Jagdish Lal was also living in the same village and Jagdish Lal is his cousin brother. The husband of Chandri Devi had died and since last 4-5 years, Chandri Devi was living with Jagdish Lal. At the time of occurrence, Chandri Devi was living with her sons and appellant Jagdish was not married. He has further stated that on 10.3.1989, Chandri Devi was murdered. At the time of Panchyatnama (inquest report), he had gone on the spot and he was appointed Panch. 13. He has further stated that “12-3-1989 dks vfHk;qDr txnhl eq>s QkSth ds tkus okys jkLrs esa ckx esa vius [ksr esa feyk o eqfYte us eq>ls dgk fd eq>ls xyrh gks xbZ gSA mlus crk;k fd og 10 ekpZ] 1989 dks eq>s pUnzh nsoh e`rdk ikuh ds /kkjs ds ikl feyh Fkh vkSj e`frdk us txnhl ls dgk Fkk fd vkt jkr [kkuk [kkus ds ckn eq>ls feyus vkukA fQj txnhl ogka mls jkr esa feyus x;kA ogkW jkr esa mls jkslu yky Hkh feyk Fkk iwNus ij crk;k fd clUr yky viuh llqjky x;k gSA pUnzh nsoh ogha ij FkhA txnhl us eq>s ;g Hkh crk;k Fkk fd og ogkW ls pyk x;k Fkk mlds ckn pUnzh nsoh e`rdk ?kj ls lsc ds isM+ ds ikl vkbZ FkhA mlus ;g Hkh crk;k fd mlus e`frdk ds lkFk lEHkksx fd;k ml njfe;ku e`frdk pUnzh nsoh us txnhl ls dgk fd rsjs ls ,d yM+dh iSnk gqbZ gS] blfy, rc e`frdk dks vius lkFk vius ?kj j[k ys rks txnhl yky us dgk dh mlds ekW cki euk djrs gSaA og mls vius ?kj ugha j[ksxkA tc pUnzh nsoh ftn~n djus yxh o fpYykus dks dgk rks laHkksx ds nkSjku gh txnhl yky us dgk fd mlds fpYykus ds Mj ds dkj.k pUnzh nsoh dk xyk nck fn;k ftlls og csgksl gksus yxh o FkksM+h nsj ckn ns[kk fd mldh xjnu yqM+d xbZ rks ogkW ls Hkkxdj pyk x;kA txnhl yky us ;g Hkh dgk fd iqfyl esjk ihNk dj jgh gSA esjk cpko djukA” On 12.3.1989, Jagdish Lal had met him in the filed near the way going towards Fauji. Then Jagdish Lal had told him that he has committed a mistake. He had told him that on 10.3.1989, Chandri Devi had met him near the waterfall and the deceased Chandri Devi had told to meet her after taking dinner in the night. He had met with Roshan Lal and he told him that Basant Lal had gone to his in-laws house and Chandri Devi was there. Jagdish had also told that after that, he had gone from that place and Chandri Devi had come near the apple tree. He had further informed him that he did sexual intercourse with her. During that period, deceased Chandri Devi had asked him that she had delivered a girl by him and then she asked her to keep her in his house. Then Jagdish had told him that his mother and father were refusing for it and he could not get her in his house. When Chandri Devi insisted for it and asked to cry, then during the intercourse, Jagdish had pressed the neck of Chandri Devi in order to escape form the crime committed by him. After that she became unconscious and thereafter she had died. Then he has run away form there. Jagdish had also requested him that police is searching for him and he had requested for his help. This witness has given the statement before the I.O. and the S.D.M. This witness was cross-examined at length but nothing has come out which may create any doubt in his evidence. This evidence of this witness is trustworthy, reliable and believable. 14. P.W.5 is Arvind Singh Hayanki who was posted as SDM, Joshimath. He has stated that on 11.4.1989, he was posted as SDM, Joshimath. He has recorded the statements of the witnesses Jamni Mistri, Roshan Lal, Santosh Lal and Chatru Lal u/s 164 Cr.P.C. as per the order of the C.J.M. and the witnesses have given their statements voluntarily. After recoding the statements, the statements were read over to the witnesses and after that, they have signed on it and thereafter he has also signed on those statements. The statements are Ex.Ka-2 to Ex.Ka-5. 15. P.W.6 is Mohan Lal who has stated that Jagdish Lal appellant was known to him and deceased Chandri Devi was also known to him and he also belonged to the same village where she was residing. On 14.3.1989, appellant Jagdish was arrested by the police and at that time, he had also gone on the place of occurrence. After reaching at the place of occurrence, Jagdish and stated that he could show the place where he had committed intercourse with Chandri Devi and thereafter he had murdered her. Then Jagdish Lal had shown that place where an apple tree was there. At that time, the Investigating Officer has prepared a recovery memo, site plan and he had also signed on that recovery memo i.e. Ex.Ka-6. 16. P.W. 6 Mohan Lal has only stated in his statement about the discovery of the place of occurrence at the pointing out of the appellant Jagdish Lal. The place of occurrence had already been discovered on the morning of 11.3.1989 at 6:00 A.M. when the dead body of deceased Smt. Chandri Devi was seen by Roshan Lal P.W.2. Thereafter, Roshan Lal has informed his brother Basant Lal P.W.1 about the incident and then Basant Lal came on the spot and after that, he has lodged the FIR in the P.S. Joshimath and after that police has reached on the spot. Hence, the discovery of the place shown on 14.3.1989 in the present of his witness Mohan Lal on the pointing out of the appellant Jagdish Lal is not admissible as per law because the same discovery had already been made on 11.3.1989. 17. P.W.7 is Jamni Lal who had stated that he and Jagdish Lal, both belonged to the same village Dauril Tok and were known to each other and deceased Chandri Devi was also living with his sons in the same village on the date of the incident. He has also stated that on 10.3.1989 in the evening, he had gone to the house of his nephew Santosh to give some articles. Santosh had asked him to go after taking the food and then after taking food in the night, he had started towards his house. The time was about 9 p.m., then Jagdish had met him near the water pump. Then he had asked form Jagdish that where he was going in that late night. Jagdish had told him that he was going towards downside. Then he had gone to his house in the night and slept. The place where Jagdish had met him, form that place, his house is in the upward and the house of deceased Chandri Devi was in the lower side form the water pump where Jagdish Lal was going. About the incident, his statement was recorded by the SDM, i.e. Ex.Ka-2 and his signatures are also there. The same face he has told to the SDM. This witness was also cross-examined at length but nothing has come out which may create any doubt in his evidence. The evidence of this witness is trustworthy, reliable and natural. 18. P.W.8 is Dr. S.D. Uniyal who has stated that on 14.3.1989, he was posted as In-charge Medical Officer in P.H.C. Joshimath. On that day at 7:20 P.M., he had medically examined Jagdish who was brought to him by Constable B.M. Bahuguna and he has found the following injuries on his person: - One abraded contusion present over right side face 3.5 cm form right external ear measuring 2cm x 1cm and contusion is brownish in colour and abrasion is blackish in colour. No other injury is present. He has further stated that the injuries on the body of Jagdish Lal is about 4 days old and could possible be caused on 10.3.1989 and this injury is possible by nails. He has also prepared the injury report, that report is Ex.Ka-7. 19. P.W.9 is Dr. A.K. Dwivedi who has stated that on 12.3.1989, he was posted as Medical Officer in District Hospital, Gopeshwar. On that day at 12:05 P.M., he has conducted post- mortem of deceased Smt. Chandri Devi. The dead body was brought by Constable Ishwar Prasad and Bhupal Sharma. The deceased was about 40 years old and she had died about 2 days before. He has found the following ante-mortem injuries on her body. 1. Bluish colored contusion present over left side of the face about 3 cm. Lateral to left angle of mouth, size 3 cm x 2 cm, some what oval in shape. 2. Bluish colored contusion mark present in front of neck, above the throid cartilage, about 10 cm x 2.5 cm on either side of the wind pipe. On dissection, hyoid bone fractured, Echynom and dark blow present on this region. In the internal examination, he has found that in the head and in the neck, hyoid bone was found fractured; Membrances and brain were found congested; Trachear was