IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 1314 of 2001 (Old No. 1027 of 1992) Sunder Lal, S/o Maya Ram, Resident of Village Kandiyalgaon, Pata Rama Sirai, Tehsil Purola, Uttar Kashi. ……Appellant. Versus State of Uttarakhand ….Respondent. Sri Lokendra Dobhal, learned counsel for the appellant. Sri. A. Rab A.G.A. for the State. Coram: Hon’ble Prafulla C. Pant, J. Hon’ble Dharam Veer, J. [Prafulla C. Pant, J. (oral)] This is appeal, preferred under Section 374(2) of Criminal Procedure Code of 1973 (hereinafter referred as Cr.P.C.), is directed against the judgment and order dated 11.5.1992 passed by learned Sessions Judge, Uttar Kashi in Sessions Trial No. 9 of 1988, whereby appellant Sunder Lal has been convicted under Section 302 and 201 of Indian Penal Code, 1860 (hereinafter referred as I.P.C.), and sentenced under Section 302 of I.P.C. to undergo imprisonment for life and under Section 201 of I.P.C. to undergo rigorous imprisonment for two years. (2) Heard learned counsel for the appellant and A.G.A. for the State. (3) Prosecution story in brief is that Sarita Devi (deceased) was married to accused /appellant Sunder Lal and she used to live with him in Village Kandiyal of Tehsil Purola, District Uttar Kashi. They had sour relations as Sarita Devi used to suspect that her husband had illicit relations with his sister-in-law (BHABHI). Due to this reason, the couple used to quarrel among themselves. Once Sarita Devi left her husband and went to her parent’s house, but on advise of Satyabhama, P.W.2 (sister of the deceased ), she came back to her husband’s house. However, according to prosecution story, accused appellant Sunder Lal and his family members did not stop to quarrel with Sarita Devi On 6.10.1987, she was seen by Satyabhama (P.W.2) going to take grass, whereafter, she did not return. Next day i.e. on 7.10.1987 Satyabhama (P.W. 2) saw accused Sunder Lal coming with his brother Dwarka Prasad in a suspicious manner. On being questioned by Satyabhama, they replied that they had gone to search Sarita Devi. On 8.10.1987, when Village Pradhan Gundru (P.W. 3) got the information that a dead body is lying hanged from a tree in the field of one Khajan Singh. Satyabhama (P.W. 2) and others went to the said field. When Sunder Lal was called by Patwari, he was nervous and did not come to the field. However, he gave information to Patwari on 8.10.1987 that his wife was missing since 6.10.1987 and her dead body was found on 8.10.1987, lying hanged from a tree (In Uttarakhand’s interior areas, Patwaries are given police powers). A check report (Ext. A-4) was got prepared and necessary entries in the General Diary (a copy of extract of which is Ext. A-5) were made on its basis by the Patwari. The Patwari took the dead body in his possession on 8.10.1987 and prepared inquest report (Ext. A-1), sketch of dead body (Ext. A-6), sample of seal (Ext. A-7), Police Form No. 13 (Ext. A-11) and sent the dead body for dead body for postmortem examination. On 10.10.1987, the autopsy was conducted on the dead body by Dr. R.N. Singh (P.W. 5), who prepared postmortem report (Ext. A-2) and opined that death has occurred due to shock and due to ante mortem injuries. During investigation, on 14.10.1987, accused Sunder Lal expressed the desire to confess the guilty, on which a statement (Ext. A-3) under Section 164 of Cr.P.C. was recorded by P.W. 6, R.S. Bhatnagar, an Executive Magistrate, after giving him due caution that the accused is not required to make the statement and the same can be used against him. The Investigating Officer, after interrogating the witnesses, made recovery of the cloths and other items and prepared Memo (Ext. A-8 & Ext. A-9), he also took the blood stained soil and sample soil and prepared Memo (Ext. A-10). After inspection of the spot, he prepared site plan (Ext. A-12). On completion of the investigation, the Investigating Officer P.W. 7, Kirtidhar submitted charge sheet (Ext. A-13) to the Magistrate for trial of the accused Sunder Lal and his brother Dwarika Prasad for the offences, allegedly committed by them punishable, under Section, 302, 201, of I.P.C. (4) The 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. Learend Sessions Judge after hearing the prosecution and the defence on 24.1.1989, framed charge of offences punishable under Section 302 of I.P.C. against accused Sunder Lal. He also framed charge of offence punishable under Section 201 of I.P.C. against both the accused sunder Lal and his brother Dwarika Prasad. Accused pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1, Mahavir Prasad (father of the deceased), P.W. 2 Satyabhama (sister of the deceased), P.W. 3 Gundru (Pradhan of the village), P.W. 4 Vikram Singh (witness of the inquest report), P.W. 5 Dr. R.N. Singh (who conducted postmortem examination), P.W. 6 R.S. Bhatnagar (the Executive Magistrate, who recorded the statement of accused appellant Sunder Lal under Section 164 of Cr.P.C.) and P.W.7 Kirtidhar (Investigating Officer), The oral and documentary evidence was put to the accused, who alleged the same to be false. However, it is not disputed by the accused that he was married to Sarita Devi. Accused Sunder Lal in his examination under Section 313 of Cr.P.C. alleged that he was coerced to make the statement under Section 164 of Cr.P.C.. In defence, D.W. 1 Gananand was examined on behalf of the accused, who has stated that he saw from 9.10.1987 to 13.10.1987, the accused Sunder Lal was with Patwari. (5) The trial court after hearing both the parties found accused Sunder Lal guilty of offence punishable under Section 302 and 201 of I.P.C. and convicted him, However, accused Dwarika Prasad was not found guilty of any charge and was acquitted from the charge framed against him. The convict Sunder Lal, after hearing on sentence, was sentenced under Section 302 of I.P.C. by the trial court to imprisonment for life, and under Section 201 of I.P.C. to rigorous imprisonment for a period of two years. Aggrieved by said judgment and order dated 11.5.1992 passed by learned Sessions Judge, this appellant was filed before Allahabad High Court in the years 1992, from where it has been received by transfer to this Court under Section 35 of the U.P. Reorganization Act, 2000 for its disposal. (6) Before further discussions, it is pertinent to mention here the ante mortem injuries, found on the person of the deceased, at the time of postmortem examination. The statement of P.W. 5 Dr. R.N. Singh, who conducted the autopsy, shows that at the time of post mortem examination on internal examination, he found bone of right temporal reason fractured inside the skull. He further found sternum bone fractured. In his examination and also in the report prepared (Ext. A-2), the witness has stated that the deceased had died due to shock caused by ante mortem injuries. (7) Above mentioned medical evidence rules out the possibility or theory that deceased committed suicide by hanging herself from a tree. Accused appellant is husband of deceased Sarita Devi, who used to live with him. It has come on record that from 6.10.1987 Sarita Devi was missing. The conduct of the accused that he remained silent till the dead body was found and did not report the matter to anyone that his wife is missing is the first circumstance which goes against the accused appellant Sunder Lal in this case. In the report, made to the Police on 8.10.1987 after dead body was found, he gave a report to the Patwari that his wife has committed suicide by hanging herself from a tree. This false story given in the report is against the medical evidence mentioned above that the victim had suffered ante mortem injuries and had already died. This is the second circumstance against the accused appellant Sunder Lal. In the statement, under Section 313 of Cr.P.C. the accused has admitted that deceased was his wife. He has further admitted that on 8.10.1987, he gave a report to the Patwari that his wife h as committed suicide. (8) Statement of P.W. 6 Sri R.S. Bhatnagar, the then Sub divisional Magistrate, who recorded the statement of accused Sunder Lal under Section 164 of Cr.P.C. shows that the accused expressed his desire to confess the guilt on 14.10.1987. This witness has further stated that the accused was told by him that he was not bound to make the statement as the same can be used against him. The witness further states that the accused Sunder Lal, thereafter, on his violation made the statement (Ext. A-3), in which he confessed the guilt that when his wife caught his testicles and tried to emasculate him, he reacted and kicked her 3- 4 times. The accused further admitted having given blows with the handle of sickle. According to P.W. 6, R.S. Bhatnagar, accused Sunder Lal admitted having hanged, thereafter, dead body of Sarita Devi from a MOLU tree. This statement is ext. A- 3 on the record, proved by aforesaid witness. No doubt at required under Sub-Section 5 of Section 164 of Cr.P.C., the Magistrate should not have recorded the statement of accused on oath. But from his statement and from the application made by the accused (before such statement is recorded on oath), makes it clear that the confessional statement made by the accused was a voluntary one. Had there been no application, in which the accused had made confessional statement, statement on oath could be said to have been Inadmissible in view of the spirit enshrined in Sub-clause 3 of Article 20 of the Constitution of India. But the application addressed to Munsif and Judicial Magistrate, made by accused can not be ignored. Sri Lokendra dobhal, learned counsel for the appellant argued that the accused was coerced to make the statement to the magistrate. However, the statement of Sub Divisional Magistrate clearly shows that he gave full opportunity to the accused not to make the statement as the same could be read against him. As such we are unable to accept the statement of learned counsel for the appellant that the confessional statement made by the accused is not a voluntary one. (9) Assuming for a moment, the statement on oath made by accused is in admissible, there is still sufficient and clinching Circumstantial evidence on record, which proves charge of offences punishable under Sections 302 and 201 of I.P.C. against the accused. (10) P.W. 1 Mahavir Prasad, father of the deceased, has stated that after his daughter got married to accused Sunder Lal, behavior of accused Sunder Lal was quarrelsome against his wife as he was having illicit relations with Savita Devi wife of Dwarika Prasad (brother of accused Sunder Lal). This witness has shown the motive behind commission of crime by accused sunder Lal. (11) P.W. 2 satyabhama, is the important witness produced on behalf of the prosecution, who is daughter of P.W. 1, Mahavir Prasad and married in the same Village Kandiyal, where deceased was married. This witness has stated on oath that she herself saw several times accused Sunder Lal beating his wife. This witness has corroborated the motive stated above behind the commission of crime by accused Sunder Lal. P.W. 2 Satyabhama further told the trial court that when the dead body of Sarita Devi was found hanging from a tree, she got unconscious. (12) P.W. 3, Gundru, the Village Pradhan, states that on 8.10.1987 at about 11.00 a.m., he received information through some boys that they were told by Khajan Singh that a dead body has been found hanging from a tree. On this, the witness has further stated that when he went to the place where the dead body was found hanging he saw that the knees of the deceased were touching the ground. This fact is yet another circumstance against the accused falsifying the theory that his wife had died due to hanging, as had she hanged herself from a tree. She could not have died when her knees were touching the ground. (13) P.W. 4 Vikram Singh states that he had gone to the place where the dead body was found with the Patwari and he also corroborates that the knees of the deceased were touching the ground, He is also witness of the inquest report. (14) From the above discussion and having heard learned counsel for the parties, we are in agreement with the trial court that the prosecution has been successful in proving the fact that the accused Sunder Lal committed murder of his wife and thereafter to conceal the evidence, he hanged the dead body of his wife from a tree to project is as a case of suicide. As such both the charges i.e. punishable under Section 302 and 201 of I.P.C. are proved on the record. And the trial court has rightly convicted the accused Sunder Lal on the said charges. The sentence awarded by the trial court is also just, reasonable and proper in the circumstances of the case. Therefore, we are of the view that the impugned judgment and order needs no interference from this Court. The appeal as such is liable to be dismissed. Accordingly, the appeal is dismissed. The trial court record be sent back. The appellant is on bail. His bail is cancelled. The trial court is directed to take the convict into custody to make him to serve out the sentence. (Dharam Veer, J.) (Prafulla C. Pant, J.) Dt. 2.4.2007 NS