Reserved Judgment HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 2092 of 2001 Nanhey @ Shyam Singh S/o Ram Chandra Singh R/o Village Khajuria Shriram, Police Station Bhutha, District Bareilly ……..Appellant. Versus State of Uttarakhand. …….Respondent Shri M.S. Pal, Senior Advocate assisted by Shri Deepak Bisht, Advocate present for the appellant. Shri Amit Bhatt, Addl. G.A. present for the State/respondent. Shri S.K. Mandal, Advocate present for the complainant. Dated: May 09, 2011 Coram: Hon’ble Prafulla C. Pant, J. Hon’ble V.K. Bist, J. Delivered by :Hon’ble V.K. Bist, J. 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 28th November, 2001 passed by Addl. Sessions Judge/2nd Fast Track Court, Nainital in Sessions Trial No. 310 of 1998 ‘State vs. Nanhey and three others’ whereby accused/appellant Nanhey @ Shyam Singh and Anil @ Billu are convicted under Section 460 of the Indian Penal Code, 1860 (for short I.P.C.) and accused/appellant Nanhey @ Shyam Singh is further convicted under Section 411 of I.P.C. Each one of the accused/appellant Nanhey @ Shyam Singh and accused Anil @ Billu has been sentenced by the trial court to imprisonment for life under Section 460 I.P.C., and accused/appellant Nanhey @ Shyam Singh has been sentenced to rigorous imprisonment for a period of six months under Section 2 411 I.P.C. It is directed that both the sentences shall run concurrently. The learned trial Court vide the same judgment and order has acquitted the accused Nand Kishore and Thakur Das of the charge of offence punishable under Section 460 I.P.C. and the accused Nand Kishore was also acquitted of the charge of offence under Section 411 I.P.C. During the pendency of this appeal, the accused/appellant Anil @ Billu expired and appeal filed by him stood abated vide Court’s order dated 26.04.2011. 2. Heard learned counsel for the parties and perused the Lower Court’s Record. 3. Prosecution story, in brief, is that in the intervening night of 29/30.12.1996 parents of the complainant [Smt. Rama Devi (PW-1)], namely, Raghuvar and Ramkali, residents of village Rajeev Nagar-Pakharia, Police Station-Khatima, District Udham Singh were found dead in their house. On 30.12.1996 at 11:15 a.m. complainant- Smt. Rama Devi (PW-1) lodged a written report (Ext. A-1) with the Police Station Kotwali Khatima, District Udham Singh Nagar alleging therein that on 30.12.1996 at about 10:00 a.m. at her home, a milkman told her that nobody is responding at her father’s residence. Then, she and her family members went to Mohalla Pakhariya, and on breaking open doors saw that dead bodies of her father and mother were lying there. Wounds of sharp edged weapon were found on the neck of both of them and the belongings were scattered. From the house of her father, apart from cash, jewellery was also found stolen. Smt. Rama Devi (PW-1) in her written report (Ext. A-1) has further narrated that her father 3 Raghuvar and her mother Ramkali (both deceased) were residing at Rajeev Nagar, Pakharia, P.S. Khatima, who used to run business of pork. About one and a half month before the incident, her father brought pigs in a truck from Sahajahanpur and took the accused/appellant Nanhey @ Shyam Singh S/o Ram Chandra, R/o Khajuria Shri Ram, Police Station Bhutha, District Bareilly, alongwith him. Her father was paying only the wages to Nanhey whereas, Nanhey was claiming profit in the business and was demanding ` 20,000/-. For this reason, altercation took place between her father and accused/appellant Nanhey @ Shyam Singh, due to which, her father struck on Nanhey’s leg with an iron rod. About 3-4 days before the date of incident, the accused/appellant Nanhey @ Shyam Singh, accompanied with Anil@ Billu Gangwar S/o Tara Chandra R/o Village Khajuria, Police Station Bhutha, District Bareilly, came to her father’s house. On that day also, altercation took place between her father and accused/appellant Nanhey and Nanhey threatened to kill her father. On 29.12.1996 at about 11:00 a.m., her elder sister Santosh went to her parental house at Mohalla Pakharia in order to give them meal and she returned back at about 6:00 p.m. The complainant had suspected that accused/appellant Nanhey is responsible for the whole incident. 4. On the basis of the written report (Ext. A-1), Chick Report (Ext. A-9) was prepared and a case crime no. 547 of 1996 was registered at Police Station-Khatima relating to offence punishable under Section 460 I.P.C. An entry was made in the General Diary. Investigation of the case was entrusted to Sub Inspector S.P. Singh (PW-7), who started investigation. The Investigating Officer first 4 of all inspected the site of incident and in the presence of the witnesses, Inquest Report of the dead body of Ramkali (Ext. A-3) and Inquest Report of the dead body of Raghuvar (Ext. A-4) were prepared. On 30.12.1996, the Investigating Officer took in his possession, plain earth and bloodstained earth from the place of incident and prepared memo (Ext. A-5). The Investigating Officer, inspected the place of incident and prepared site-plan (Ext. A-11). The dead bodies of the deceased, in a sealed condition, alongwith Inquest Reports (Ext.A-3) and (Ext. A-4), Police Form No.13, the sketch of dead bodies, Police Form No.33, letter to Chief Medical Officer, Pilibhit for conducting post mortem and sample seal, were sent for post mortem examination. Dr. A.K. Sharma, Senior Radiologist (P.W.8) conducted post mortem examination on the dead body of Raghuvar, aged 90 years, on 31.12.1996 at 3:30 p.m. and prepared autopsy report (Ext. A-14). He recorded incised wound 11 cm. x 5 cm. x bone deep at the left side of neck obliquely 8 cm. below the left ear, underlying vertibrae posteriorly cut, trachea cut through and through, all carotid jugular vessel on the left side of neck are cut, on the person of the deceased, in his report. The Senior Radiologist opined that the deceased had died of shock and haemorrhage due to ante mortem injuries. Dr. A.K. Sharma, Senior Radiologist (P.W.8) also conducted post mortem examination on the dead body of Ramkali, aged 85 years, on 31.12.1996 at 4:00 p.m. and prepared autopsy report (Ext. A-13). He recorded incised wound 12 cm. x 4 cm. x bone deep at the front of neck transversely at the level of cricoid cartilage, underlying larynx oesophagus and carotid vessel cut, on the person of the deceased, in his report. The Senior Radiologist opined that the deceased had died of shock and haemorrhage due 5 to ante mortem injuries. On 07.01.1997 Rama Devi (PW-1 complainant) also submitted a written report mentioning therein the list of the belongings, which were found missing in the above incident, according to which a cash sum of ` 70,000/-, one silver belt, two golden coins, one golden ring, one golden wearing in the finger, two pieces of gold men-wearing at ears, a pair of silver PAIJEBERY, one warm coat of black colour, one old jersey, one ladies Saree, one purse, two plates, one huge pan, one wristwatch, a pair of golden earrings and one pair of silver-ornament for wearing at ankle, were robbed in the incident. Thereafter the investigation was transferred to SHO Mahendra Pal Singh (PW-9), who during investigation apprehended the accused/appellant Nanhey on 19.01.1997 and from his possession one wristwatch (TITUS) and one receipt no.–783 dated 01.01.1997 (Ext.A-15) relating to sale of a ring costing ` 4,300/-, silver costing ` 800/-, total ` 5,100/-, were recovered and memo (Ext. A-12) was prepared. On the same day i.e. on 19.01.1997, on the pointing out of the accused/appellant Nanhey, GANDASA (a sharp edged weapon), used in the crime, was also recovered and memo (Ext.A-6) was prepared in the presence of the witnesses. On the same day one Jassa Singh was arrested, name of which was disclosed by the accused/appellant Nanhey in the commission of said crime and on the disclosure of Jassa Singh, two plates and one huge pan, in which name of Raghuvar (deceased) was engraved were recovered from the possession of accused Nand Kishore and memo (Ext.A-7) was prepared in the presence of the witnesses. On 08.02.1997, on the pointing out of the accused Anil @ Billu, one large knife (a sharp edged weapon), used in the crime, was recovered from the hut of the accused Thakur 6 Das, which had been concealed in his hut. In this regard memo (Ext.A-8) was prepared in the presence of the witnesses. The I.O. also prepared the site plans (Ext. A-16, A-17 and A-18). The Investigating Officer interrogated the witnesses, recorded their statements and thereafter filed Charge sheet (Ext.A-19) on 18.03.1997 against the accused/ appellant Nanhey @ Shyam Singh, Thakur Das (acquitted by trial Court), Anil @ Billu (appeal against whom is abated), Jasbir Singh (whose case was separated) and Nand Kishore (acquitted by trial Court) for their trial in respect of offence punishable under Section 460 I.P.C. 5. 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. On 29.10.1998, learned Special Judge/Addl. Sessions Judge, Nainital, after hearing the parties, framed charge of offence punishable under Section 411 I.P.C. against accused/appellant Nanhey @ Shyam Singh, who pleaded not guilty and claimed to be tried. On 29.10.1998, a separate charge of offence punishable under Section 460 I.P.C. was also framed against the accused/appellant Nanhey @ Shyam Singh and another co-accused Thakur Dass, Anil Kumar @ Billu and Nand Kishore to which they pleaded not guilty and claimed to be tried. 6. The prosecution, in order to prove its case, got examined PW-1 Rama Devi (complainant-daughter of the deceased), PW-2 Shobha (daughter’s daughter-child witness), PW-3 Mamta (daughter’s daughter-child witness), PW-4 Radhey Shyam (witness, who witnessed altercation between Raghuvar and accused/appellant 7 Nanhey and also witness of Inquest Reports and other recoveries), PW-5 Kanta Prasad (witness of recovery of GANDASA on the pointing of the accused/appellant Nanhey, but declared hostile), PW-6 Kamal (witness of recovery of knife on the pointing out of accused Anil @ Billu), PW-7 Sub Inspector S.P.Singh, who prepared inquest report and sent the dead bodies of Raghuvar and Ramkali for post mortem examination, after preparing other necessary documents, PW-8 Dr. A.K. Sharma, Senior Radiologist, District Hospital, Pilibhit who conducted post mortem examination on the dead bodies of the deceased, PW-9 S.H.O. Mahendra Pal Singh, who subsequently concluded the investigation. The oral and documentary evidence was put to the accused under Section 313 Cr.P.C., in reply to which, he alleged the same to be false. No witness, in defence, was got examined. After hearing the learned counsel for the parties, the trial Court convicted the accused/appellant Nanhey@ Shyam Singh and Anil @ Billu under Section 460 I.P.C. and further convicted accused/appellant Nanhey @ Shyam Singh under Section 411 of I.P.C. Each one of the accused/appellant Nanhey @ Shyam Singh and accused Anil @ Billu has been sentenced by the trial court to imprisonment for life under Section 460 I.P.C., and accused/appellant Nanhey@ Shyam Singh has been sentenced to undergo rigorous imprisonment for a period of six months under Section 411 I.P.C. It is directed that both the sentences shall run concurrently. Being aggrieved by the impugned judgment and order dated 28.11.2001 passed by the Addl. Sessions Judge/2nd Fast Track Court, Nainital in Sessions Trial No. 310 of 1998 the accused/appellants Nanhey @ Shyam Singh and Anil @ Billu have preferred this appeal. 8 7. Before further discussion, we think it just and proper to mention the ante mortem injuries mentioned by PW-8 Dr. A.K. Sharma, Senior Radiologist, who conducted post mortem examination on the dead body of Raghuvar on 31.12.1996 at 3:30 p.m., and prepared autopsy report (Ext.A-14). He found following ante mortem injury on the person of the deceased Raghuvar: “Incised wound 11 cm. x 5 cm. x bone deep at the left side of neck obliquely 8 cm. below the left ear, underlying vertibrae posteriorly cut, trachea cut through and through, all carotid jugular vessel on the left side of neck are cut” On internal examination, the Doctor found that there was 300 gr. semi digested food in his abdomen. He opined that the deceased had died of shock and haemorrhage due to the ante mortem injuries. He opined that death of the deceased could have been caused about 1½ day before the date of postmortem. 8. Dr. A.K. Sharma, Senior Radiologist (P.W.8) also conducted post mortem examination on the dead body of Ramkali on 31.12.1996 at 4:00 p.m. and prepared autopsy report (Ext. A-13). He recorded following ante mortem injury on the person of Ramkali in his report: “Incised wound 12 cm. x 4 cm. x bone deep at the front of neck transversely at the level of cricoid cartilage, underlying larynx oesophagus and carotid vessel cut.” On internal examination, the Doctor found that there was 200 gr. semi digested food in her abdomen. He opined that the deceased 9 had died of shock and haemorrhage due to the ante mortem injuries. He opined that death of the deceased could have been caused about 1½ day before the date of postmortem. 9. PW-8 Dr. A.K. Sharma, opined that the death of both the deceased has been caused with some sharp edged weapon, in the intervening night of 29/30.12.1996. 10. This is a case of robbery with double murder (of a couple), who was living all alone and none else was with them in the fateful night. It has come out on the record, that in the intervening night of 29/30.12.1996 parents of the complainant Smt. Rama Devi (PW-1), namely, Raghuvar and Ramkali, residents of village Rajeev Nagar-Pakharia, Police Station-Khatima, District Udham Singh were found dead in their house. Raghuvar was dealing the business of pork. In order to look after the pigs, accused/appellant Nanhey was kept by the deceased as servant. Raghuvar brought truck full of pigs for selling meat. The accused/appellant Nanhey was demanding half share in the business and was declined, on which he was annoyed. After some altercations, Raghuvar hit at the leg of the accused/appellant Nanhey with an iron rod (SARIA). Thereafter, the accused/appellant Nanhey gave up his job as servant. After some time, he returned back accompanied with the co-accused Anil @ Billu and the accused/appellant Nanhey threatened to kill Raghuvar and on the fateful day i.e. in the intervening night of 29/30.12.1996 after which, Raghuvar and his wife Ramkali were found dead in their house. On 19.01.1997, the accused/appellant Nanhey was apprehended, and from his possession one wristwatch (TITUS) and one 10 receipt no.–783 dated 01.01.1997 (Ext.A-15) regarding sale of a ring costing ` 4,300/-, silver costing ` 800/-, total ` 5,100/-, was recovered. On the same day i.e. on 19.01.1997, on the pointing out of the accused/appellant Nanhey, GANDASA, used in the crime was also recovered. Besides it a knife of prohibited measurement was also recoverd. Now this Court has to see as to whether the accused/appellant, alongwith the other co-accused, has committed the crime, as suggested by prosecution. In this regard, first of all, we take up the oral evidence adduced by the prosecution. 11. PW-1 is the complainant Rama Devi, who lodged the First Information Report (Ext. A-1) on 30.12.1996 at 11:15 a.m. with the Police Station Khatima. This witness has stated that Raghuvar was her father, who was residing at Railway Gate at Khatima. Her father was running the business of purchasing and selling of the pork. This witness has stated that she is well acquainted with the accused/appellant Nanhey, who was kept by her father in service in order to look after the pigs. Her father, before the incident, brought one truck full of pigs from Shahjahanpur for selling meat after slaughtering them. The accused/appellant Nanhey was demanding one-half share in the business, but her father declined to oblige, as her father had kept him as servant. On altercation, her father wielded SARIA on the leg of the accused/appellant Nanhey. At that time Madan and Raju were also present there. After the accused/appellant Nanhey was hit with SARIA, he gave up his job. This witness has further told that after some days, the accused/ appellant Nanhey, accompanied with Billu, came to his father’s house. At that point of time she was present with her father. The 11 accused/appellant Nanhey again asked his share, which resulted altercation between them. She gave ` 300/- to the accused/appellant, thereafter the accused went away. The accused/appellant Nanhey threatened her father stating that her father insulted him and he would see him. This witness has further stated that the whole incident had taken place in her shop, licence of which is in her name and she sells pork on behalf of her father. This witness has further stated that on 29.12.1996 at about 9:00 a.m., after about a month when the accused/ appellant gave threats to her father, her milkman told her that no one is responding at her father’s house. Then she reached her father’s house where she saw dead bodies of her parents and the belongings were scattered. In this regard, she lodged report, scribed by one Umesh Bhatnagar, with the Police Station. This witness has proved the written report (Ext. A-1). This witness was cross-examined by the defence counsel, at length, but nothing has come out in her evidence, which may create reasonable doubt. 12. PW-2 Shobha is a child witness and at the time to recoding of her evidence, she was aged 12 years. In order to know her efficiency in recording her testimony, she answered some questions put by the trial Court, to which she responded correctly. This witness has stated that Raghuvar and Ramkali were her maternal grandfather and maternal grandmother. Before the murder of Raghuvar and Ramkali, she and Mamta (PW-3) had gone to their maternal home. She knows Nanhey and Billu, who had gone at her maternal grandfather’s house, one day before the fateful day. She narrated that the accused/ appellant Nanhey was insisting his demand for 12 share. At this, her maternal grandfather angrily replied that the accused Nanhey had come in his house, bringing wicked (BADMASH) with him. Then the accused Nanhey went away, threatening to kill her maternal grandfather. 13. PW-3 Mamta, at the time to recoding evidence was aged 11 years, and she is also a child witness. She had also answered some questions put by the Court, to which she responded correctly. This witness has corroborated the evidence given by PW-2 Shobha. The evidence of these three witnesses, on each and every point of the prosecution story, is reliable, natural and trustworthy. 14. PW-4 Radhey Shyam, in his statement has stated that the deceased Raghuvar was his father-in-law. He is acquainted with the accused/appellant Nanhey. The accused Nanhey was serving with Raghuvar 3-4 months before the date of incident. He has stated that some quarrel had taken place between Raghuvar and accused Nanhey in relation to the business, and Raghuvar struck Nanhey with iron rod. Thereafter, Nanhey gave up his job. After 3-4 days, Nanhey again came at Raghuvar’s house. Again some altercation had taken place and then Nanhey went away. After some days, Raghuvar and his wife were murdered and on knowing this, he also went to their house. Inquest Reports were prepared in his presence and this witness also signed the same. He proved the inquest reports (Ext.A-3 and Ext. A-4). Bloodstained and plain soil were also taken by the I.O. in his presence and memorandum was prepared. On the pointing out of the accused/appellant Nanhey, the GANDASA, used in the crime, was also recovered in his presence. One sealed bundle was opened before the trial Court and this witness 13 has identified the GANDASA (material Ext.-V) in the Court. This witness has also proved recovery memo (Ext. A-6). This witness has stated that on the pointing out of accused Jassa, one huge pan for cooking rice and two plates were recovered from the house of accused Nand Kishore. This witness proved the recovery memo (Ext. A- 7). 15. The witness PW-5 Kanta Prasad was produced by the prosecution in order to prove the recovery of the GANDASA on the pointing out of accused/appellant Nanhey, but this witness has been declared hostile by the prosecution. The prosecution has also examined PW-7 Kamal in order to prove the recovery of Knife (material Ext.-VI), used in the commission of said crime. This witness has stated that the Police personnel informed that the accused Anil @ Billu, who was involved in the murder of THEKEDARNEE (wife of deceased Raghuvar), intended to get recovered the knife, used in the crime, and on the pointing of the accused Anil @ Billu, a knife, concealed inside the hut of accused Nand Kishore, was recovered. This witness has proved the recovery memo (Ext. A-8). 16. PW-7 Sub Inspector S.P. Singh has initially investigated the crime. This witness has proved site-plan (Ext. A-11) of the place of murder. This witness proved memorandum of recovery of GANDASA (Ext. A-6). This witness also proved the recovery memo of large pan and two plates (Ext.A-7). PW-8 Dr. A.K. Sharma, Senior Radiologist conducted post mortem examination on the dead bodies of Raghuvar and Ramkali. PW-9 Station 14 House Officer Mahendra Pal Singh subsequently, took up the investigation of the crime with effect from 11.01.1997. On 19.01.1997, he apprehended the accused/appellant Nanhey and from his possession a wristwatch and one slip of sale jewellery bearing no. 783 dated 01.01.1997 was recovered from the accused/ appellant Nanhey. This witness proved recovery of slip (Ext. A-15) and memorandum of recovery of wristwatch (Ext. A-12). On the same day i.e. on 19.01.1997, on the pointing out of accused/appellant Nanhey, this witness recovered the GANDASA, used in the crime, and prepared memo (Ext. A-6). He also prepared site-plan (Ext. A-16) of the place of recovery of GANDASA. On the same day, i.e. on 19.01.1997, on the pointing out of accused Jassa, he also recovered two plates and one large pan from the possession of accused Nand Kishore and prepared recovery memo (Ext. A-7) and the site-plan thereof (Ext.A-17). When the accused Billu was interrogated in jail, this witness, after taking the accused Anil @ Billu on remand, on 08.02.1997 on his pointing out, recovered the knife, used in the crime, hidden inside the hut of accused Thakur Das and prepared recovery memo (Ext. A-8) and the site-plan thereof (Ext. A-18). After concluding investigation, this witness has submitted Charge-sheet (Ext. A-19) against the accused persons. 17. Learned counsel for the accused/appellant has first of all argued that there being no ocular witness of the murder and robbery, the entire case of the prosecution rests upon the circumstantial evidence and the prosecution has to complete the chain of circumstances in order to encircle the accused/appellant for the commission of said crime and without completing the 15 chain of circumstances, the accused/appellant cannot be held guilty of the charge framed against him. He argued that no motive is assigned to the accused/appellant for the commission of the crime. The complainant Rama Devi has deliberately given the list of stolen items, after too much delay i.e. on 01.01.1997, with the intention to implicate the accused falsely in the crime. It is vehemently argued that no identification was done of the stolen items. The alleged weapons used in the crime (GANDASA and KNIFE) were not sent for chemical examination, which shows laches and omissions on the part of the Investigating Officer and there is no clarification about not conducting chemical examination of the weapons allegedly used in the commission of crime, in absence of which, the accused/appellant cannot be held guilty. He argued that one slip no.–783 dated 01.01.1997 (Ext.A-15) relating to sale of a ring costing ` 4,300/-, silver costing ` 800/-, total ` 5,100/- alleged to have been recovered from the possession of the accused/ appellant Nanhey, but that was not of a jeweler. 18. So far the list of stolen items submitted by the complainant Rama Devi, after one week from the date of incident, is concerned,