IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Jail Appeal No. 15/2008 Smt. Babita … Appellant. Vs. State .. Respondent. Sri S.K.Mishra, learned Amicus Curiae for the appellant. Sri S.S. Adhikari, learned A.G.A. for the State Coram: Hon’ble B.C. Kandpal, J. Hon’ble Nirmal Yadav, J. [Per: Hon’ble B.C. Kandpal, J.] This criminal jail appeal, arises out against the judgment and order dated 7-2-2000, passed by Sessions Judge, Pithoragarh, in S.T. No. 8 of 1999, State versus Smt. Babita, whereby the accused Smt. Babita has been held guilty of the offence U/S 302 I.P.C. and sentenced to undergo Life Imprisonment. 2- The brief facts of the prosecution case are that Mohan Singh, complainant is the husband of accused Smt. Babita. On 29-12-1998 he lodged the written report Ext. Ka.1 at P.S. Kotwali Pithoragarh, with the allegations that in the month of December 1998, he was posted in 130 T.A. Battalian, Baralu. He was married to Smt. Khasti Devi and two daughters Renu aged 7 years and Kavita aged 4 years were born from their wedlock. On 11-9-1998 Smt. Khasti Devi died at the time of her delivery. Thereafter he was married to the accused Smt. Babita on 9-12-1998. On 27.12.1998 2 the complainant along with his both the daughters and the accused came in Mohalla Siltham of Pithoragarh where they took meal together and got them photographed. After that complainant asked the accused to leave them at village Urai. On this Smt. Babita told him that he is a government servant and in case he will go with her to leave them, then he will not be able to attend his duties. So she herself will go along with the girls. On this complainant boarded them in a bus at Pithoragarh at 11 P.M. and came back at Baralu. The accused had to go to village Urai through Jajardevel and Kaligarh. It is said that on that day she did not go to Urai, but alongwith daughters left the bus in the way and went to village Gaithana, a nearby village to the road from Pithoragarh to Urai, where she lived with her cousin sister Smt. Godawari Devi. On 28.12.1998, the accused took a sickle with her and hidden it in a bag and proceeded for village Urai. Smt. Godawari Devi also sent her son Pankaj with her as he intended to go to village Urai. But when they came at Jajardevel road, accused offered the ground-nut to Pankaj and told that she is going to leave Renu and Kavita to their maternal uncle’s house at Malapani and took the girls with her. It is further mentioned in the written report that after some time the accused came back alone after committing the murder of both the girls and she did not disclose this fact to Pankaj Singh. Thereafter she along with Pankaj went at her father’s house in village Urai and on 29-12-1998 went alone at Baralu where she met the complainant. At 10.A.M. she told that Renu and Kavita have been missed 3 somewhere. As Smt. Babita was somewhat nervous and was not speaking properly, so complainant did not believe her and called Jeewan Singh, brother of the accused. On making inquiry by them the accused told that the people were casting remarks against her that she has held marriage with a man of two daughters, so she felt offended and made up her mind to commit the murder of the girls. She confessed her guilt to the complainant and narrated the story that on 27.12.1998 she left the bus near Jajardevel and went at the house of Godawari along-with the girls and on 28.12.1998 at about 3 P.M. took a sickle from the Goath of Godwari and hidden it in a bag and came along with the girls on the road at bushes near a culvert. Firstly she asked Kavita to sit on the road and then took Renu downwards and cut her throat with the sickle. After that she repeated the same incident with Km. Kavita and hidden their dead bodies and the sickle in the bushes. Therefore, the complainant got scribed the written report by Jagat Singh Matwal and handed over at the Police Station, where on the basis of written report, chick F.I.R. Ext. Ka.4 was prepared and a case was registered against the accused vide G.D. report No. 24 at 13.30 P.M. 3- The investigation of the case was entrusted to S.I. Umesh Chandra Pant, who along with the complainant, the accused, necessary papers and police force came at Jagardevel, near Kaligarh bridge and asked the accused about the dead bodies, who told that she has committed the murder of Kavita and Renu near Gadhera and 4 hidden their dead bodies in the bushes near Gadhera and she can point out that place. On this she along with the complainant, police and her brother went down about 150 meters to the road near Gadhera and pointed out that place where she committed the murder and also pointed out towards the dead bodies. The Investigating Officer took both the dead bodies into possession and prepared the request reports, letter to R.I., letter to C.M.O. and other papers Ext. Ka. 6 to Ka.14 and sent the dead bodies for post mortem. 4- The I.O. also seized the blood-stained and simple earth from the place of occurrence and prepared memo Ext. Ka.15 and Ka.16 and sealed the same in different containers. The I.O. also asked about the weapon used in the crime. On this accused pointed out the bloodstained sickle and ladies suit and woolen sweater hidden in the bushes. The I.O. took into possession the same and prepared memo Ext. Ka.17. On the next day he again went at the place of occurrence and prepared site-plan, Ext. Ka.19. Thereafter the investigation was handed over to Sri Dwarika Prasad, Inspector of Police. He also could not investigate the case as he was under transfer, so the investigation was completed by S.S.I. Vishram Singh, who submitted charge sheet Ext. Ka.20. 5- Dr. P.C. Pant, conducted the post mortem on the dead body of the deceased on 29-12-1998, at 1.20 P.M. in District Hospital, Pithoragarh. He 5 found the following ante-mortem injuries on the dead body of Km. Kavita- 1. Incised wound 6cm x3cm x bone deep present on the right cervical region. Clotted blood present. Wound extending from right up shoulder jaw up-to left medial clavicle end. 2. Incised wound 2cm x ½ cm x muscle deep present over chin. Clotted blood present. The Medical Officer also found that the trachea was cut and clotted blood was present. He opined that deceased was done to death within 48 to 72 hours by any sharp edged weapon like sickle and the deceased died on account of the ante-mortem injuries. The doctor prepared post mortem examination report Ext. Ka.2. He also conducted post mortem on the dead body of Km. Renu same day at 2.10 P.M. and found the following ante-mortem injuries on her person- Incised wound 6cm x 5cm present in front of neck. Wound was bone deep, underlying trachea. Blood vessels clotted in two pieces. Clotted blood was present around whole of neck. In the opinion of the doctor injury could be caused by any sharp edged weapon like sickle on 28.12.1998 at 3-4 P.M. and the cause of death was haemorrhage and shock due to ante-mortem injury. The doctor prepared post mortem report, Ext. Ka.3. 6- After receipt of charge sheet, the C.J.M. Pithoragarh, vide his order dated 17.3.1999 committed the case to the court of Sessions. 6 7- The learned Sessions Judge, Pithoragarh framed charge U/S 302 I.P.C. against the accused, to which she pleaded not guilty and claimed to be tried. 8- Thereafter, prosecution in order to bring home guilt against the accused, examined P.W.1, Mohan Singh, P.W.2, Smt. Godawari Devi, P.W.3, Pankaj, P.W.4, Dr. P.C. Pant, P.W.5, H.C. Seesh Ram, and P.W.6, S.I. Umesh Chandra Pant. 9- The accused in her statement U/S 313 Cr.P.C. denied the prosecution allegations. She admitted that she was going to her mother’s house along with deceased Kavita and Renu. In the way she went to attend the call of nature and when she returned she found both the girls dead. She did not produce any evidence in her defence. 10- The learned Sessions Judge, after hearing learned counsel for the parties and considering the entire evidence on record, found the accused guilty U/S 302 I.P.C. and sentenced her to undergo Life Imprisonment vide impugned judgment. 11- Feeling aggrieved, the accused has preferred this jail appeal before this court. 12- We have heard Sri S.K. Mishra, Amicus Curiae on behalf of the accused/appellant and Sri S.S. Adhikari, learned A.G.A. for the State and perused the record. 7 13- Learned Amicus Curiae has submitted that there is no direct evidence of the crime and the entire case rests simply on extra-judicial confession of the accused and other circumstances of the case and the same have not been established by cogent and reliable evidence and the learned Sessions Judge has erred by relying on such evidence. He also submitted that according to prosecution version the accused confessed her guilt before her husband P.W.1, Mohan Singh and her brother Jeewan Singh, besides the I.O., but the prosecution has not produced Jeewan Singh, which creates a doubt on the prosecution version. 14- On the other hand learned A.G.A. has refuted the above submission and argued that the accused has confessed her guilt and on her pointing out the dead bodies and the weapon used in the crime as well as the blood stained clothes of the accused were recovered. Prosecution has proved the other circumstances of the case and the learned trial court was justified in convicting the accused for the offence U/S 302 I.P.C. 15- We have perused the evidence adduced in the case and find that there is no eye witness account in the case and the prosecution case rests on confessional statement of the accused and other circumstantial evidence. Therefore, it is to be seen that whether the prosecution has been successful in establishing the guilt of the accused beyond all reasonable doubt or not?. 8 16- Firstly we deal with the confessional statement of the accused as well as the recovery of sickle and the other articles on the pointing out of the accused/appellant. P.W.1, Mohan Singh is the husband of the deceased. He is also complainant of the case. This witness has lodged the F.I.R. on 29.12.1998 mentioning therein all the facts in detail. This witness has fully corroborated the contents of the F.I.R. and stated that Khasti Devi was married to him in the year 1982, who gave birth to Km. Renu and Kavita from their wedlock. On 11-9-1998 Khasti Devi died at the time of delivery. Then he married to accused Babita on 9.12.1998. At that time his daughters were 7 years and 4 years old. On 27.12.1998 he came along with the accused and his daughters at Pithoragarh and got group photograph. After that he asked the accused to leave her at her parental house but the accused Babita replied that he will be late for his duties and they will go alone. Thereafter he boarded the accused and both of his daughters in K.M.O.U. Mini Bus at about 2 P.M. and went on his duties at Baralu. On 29.12.1998, Babita came to him at Baralu alone and told that Renu and Kavita have been missed somewhere. He did not believe to it and brought the accused to Pithoragarh and took her near Kaligarh culvert where the girls were said to have been missed and also called Jeewan Singh, brother of the accused. He and Jeewan Singh made search of the girls but the accused did not anything about the girls. After that he got the F.I.R. scribed by Jagat Singh and went at Wadda Police Out Post along-with the accused. At the Police Station the 9 accused confessed before them the commission of murder of the girls and told that she was misled by some people that she had married a man having two daughters and so she has committed the murder of the girls. This witness further deposed that on 27th December, the accused went at the house of her cousin sister Godawari and committed the murder on the next day. This witness has proved the F.I.R. Ext. Ka.1. He has further deposed that the police took into possession both the dead bodies. 17- The recovery of dead bodies, sickle and the clothes worn by the accused, at the time of occurrence, has been corroborated by the deposition of P.W.6, S.I. Umesh Chandra Pant, who has stated that on 29.12.1998, a case was registered against accused on the report of Mohan Singh, who was accompanied with Jeewan Singh and accused Babita. He further deposed that he along-with the accused, complainant and Jeewan Singh went at the place of occurrence near Kaligarh bridge at Jajardevel and interrogated accused Babita, who told that he has committed the murder of Km. Renu and Kavita and has thrown the dead bodies in the bushes near Gadhera and she pointed out the place of murder. Thereafter she went ahead and police constable, complainant Mohan Singh and brother of accused remained behind. She went about 150 meters downwards in Gadhera where she pointed out a dead body of Renu. Again she pointed out the dead body of Kavita and told that she has committed their murder by sickle. On this he took both the dead bodies into his possession, prepared 10 the inquest report and other necessary papers, Ext. Ka.6 to Ext. Ka.14 and sent the bodies for post mortem. He further deposed that he took into possession the blood stained and simple earth, sealed in different containers and prepared recovery memos Ext. Ka.15 and Ka.16. He further deposed that accused also confessed that she has hidden the sickle, by which she committed the murder, and the clothes which she was wearing at the time of murder, in the bushes and she could point out the same. At this she brought out one sickle, one ladies suit and one woolen sweater from the bushes. The I.O. sealed the same and prepared memo Ext. Ka.17. The I.O. further deposed that he also found one cap near the dead body of Kavita and he took the same into his custody vide recovery memo Ext. Ka.18. Therefore, from the deposition of P.W.1, Mohan Singh and P.W.6, S.I. Umesh Chandra Pant, it is proved that accused Smt. Babita confessed her guilt before them at the police station and on her pointing out the dead bodies, the sickle used in the commission of crime, and her clothes stained with blood were seized by the I.O. 18- So far as argument of learned Amicus Curiae with respect to non-examination of witness Jeewan Singh, is concerned, he was interrogated by the I.O. during investigation and his name also finds place in the charge sheet as a witness, but examination of this witness would not have been helpful to the prosecution, as he is the brother of the accused and he would not have supported the prosecution version, hence non-examination of this 11 witness do not render the prosecution case unreliable in any manner. 19- Beside above evidence, the circumstances of the case have been fully proved by the deposition of P.W.2, Smt. Godawari Devi and P.W.3, Pankaj Singh. P.W.2, Smt. Godawari Devi has stated on oath that the accused Babita is her cousin sister, who was married to Mohan Singh about 17-18 months before this occurrence. She further stated that about seven months before about 2-3 p.m. accused Babita came at her house alongwith Kavita and Renu and in the night they stayed there. On the next day, she offered them meal and thereafter they went to Develthal Urai alongwith her son Pankaj. On the next day she went in the jungle for work and when she was going back to her house at 3 p.m. she saw a crowd at Kaligarh. Babita was there who pointed out the dead bodies of Kavita and Renu lying in the bushes. She also pointed out her sweater lying in the bush, which was stained with blood. Therefore, from the statement of this witness it is quite clear that accused had stayed at her house along with the deceased Renu and Kavita and the accused left her house along with the deceased Renu and Kavita and her son Pankaj. The dead bodies of the deceased and the sweater of accused stained with blood were also recovered at the pointing out of accused Smt. Babita from the bushes. 20- P.W.3, Pankaj Singh, who had accompanied the accused and Km. Renu and Kavita has also 12 corroborated the prosecution version. He deposed that on 27.12.1998 accused came along with Renu and Kavita at his house and stayed there in the night. On the next day she along-with the girls went at her mother’s house. At that time his mother was present in the house. His mother also allowed him to go with her. They all came at Jajardevel road from his house where his aunt Babita seated him on the road and gave groundnut to eat. She told him that she is taking the girls to maternal uncle’s house and will return soon and she went towards Kaligarh (Gadhera) along with the girls and returned after a long interval alone and then they both went at village Urai. Accused told his maternal uncle that Renu and Kavita have been missed somewhere. Therefore, from the deposition of this witness it is fully proved that the deceased Renu and Kavita were lastly seen in the company of the accused going towards Kaligarh Gadhera, the place of occurrence. 21- Learned Amicus Curiae also submitted that the prosecution has not proved a strong motive with the accused for commission of the crime. 22- We do not find any force in the above submission. The motive part has been fully proved by the prosecution. P.W.1, Mohan Singh, husband of the accused has deposed that the accused has confessed before him that she has committed the murder of both the daughters for the reason that people were casting remarks against her that she has been married with a man of two daughters and 13 for this reason she felt offended and made a decision to commit the murder of the girls. The accused in her statement U/S 313 Cr.P.C. also admitted this fact that she was going to her mother’s house along with Kavita and Renu. In the way she got seated the girls and she herself went to attend the call of nature and when she returned she found the girls murdered. This fact is admitted to the parties that when the accused got married with Mohan Singh he was having two daughters aged about 7 and 4 years from his first wife and for this reason people were casting remarks against the accused and that might be reason that being offended by this fact the accused made up her mind to remove the girls from her way. Therefore, we find that the accused had strong motive to eliminate Km. Renu and Kavita. 23- The medical version has fully corroborated the ocular version. Dr. P.C.Pant, P.W.4, who conducted the autopsy on the dead bodies, has found two incised wounds on the person of deceased Km. Kavita and an incised wound on the body of Km. Renu. In the opinion of the doctor these injuries could be caused by sharp edged weapon like sickle and they were sufficient to cause the death of the deceased. The doctor also opined that the injuries could be caused within 48 to 72 hours. 24- Thus, from the above discussion we find that the prosecution has been successful in establishing the guilt of the accused/appellant beyond all reasonable doubts. We do not find any 14 infirmity in the impugned judgment passed by the learned Sessions Judge. Therefore, the appeal lacks merit and is liable to be dismissed. 25- The Criminal Jail Appeal is dismissed. The impugned judgment and order passed by the trial court, convicting the accused/appellant U/S 302 I.P.C. and sentencing her to Life Imprisonment is upheld. (Nirmal Yadav, J.) ( B.C. Kandpal, J.) Dated: 24-06-2010 ISB