IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 1712 of 2001 (Old No. 1560/ 2000) Smt. Sabira Begum W/o Sri Ibrahim R/o Village Kareli, P.S. Subhash Nagar, District Bareilly. Present Address: Mahila Bandi Rakshak, District Jail Badaun. ...…………. Appellant Versus State of U.P. (now State of Uttarakhand) ...…………. Respondent Ms. Vijay Laxmi Phartiyal, Advocate (Amicus Curiae), present for the appellant. Mr. S.S. Adhikari, Asstt. Govt. Advocate, present for the respondent State. Coram : Hon’ble Prafulla C. Pant, J. Hon’ble Nirmal Yadav, 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 2 28.06.2000, passed by Sessions Judge, Almora, in Sessions Trial No. 57 of 1995, whereby said court has convicted accused / appellant Sabira Begum under Section 302 read with Section 34 of the Indian Penal Code, 1860 (for short I.P.C.), and sentenced her to imprisonment for life. 2) Heard learned Amicus Curiae for the appellant and learned Asstt. Government Advocate for the State, and perused the lower court record. 3) Prosecution story, in brief, is that Smt. Parwati Devi (deceased) was lodged in District Jail, Almora, in October 1985, in connection with a murder case. On 24.07.1986, she was produced in connection with said case in the court of Sessions Judge, Almora. An application was moved by her, through her counsel, on 25.07.1986, complaining that after her return to District Jail, accused / appellant Sabira Begum, who was a warder in the jail, committed MAARPEET with her and harassed her. It is also complained by her that she has been threatened by the warder (Sabira Begum) that she would be killed. On this, under order dated 26.07.1986, passed by Sessions Judge, Chief Judicial Magistrate, Almora, went to the District Jail, and enquired into the incident. The Chief Judicial Magistrate in his report dated 2nd of August 1986, reported that the complaint was true to the extent that after Parwati Devi refused to throw away a scorpion, which had sneaked in the 3 barrack, and did not obey orders of the warder, she (accused Sabira Begum) misbehaved and assaulted Parwati Devi. This fact was corroborated by co-inmate Smt. Radha Devi and the Deputy Jailer. The orders of the Sessions Judge, Almora, on said report were sent to the Superintendent of the District Jail for taking necessary action. Prosecution case is that in the intervening night of 3rd and 4th of August 1986, accused / appellant Sabira Begum was on duty in the female barrack, where Parwati Devi (deceased) and another inmate Radha Devi were lodged. In the morning, Sabira Begum reported to the Deputy Jailer that Parwati Devi has committed suicide. The Deputy Jailer informed the matter to the Incharge Superintendent of the District Jail, and the matter was also reported to the police. An inquest report (Ext. A –1) was prepared by the police on 04.08.1986, at 04:15 P.M., under instructions from the Sub Divisional Magistrate, after taking the dead body of Parwati Devi in their possession, and the dead body was sent for postmortem examination in a sealed condition. The postmortem examination on the dead body of Parwati Devi was conducted on 05.08.1986, at 12:10 P.M. (noon) by P.W. 6 Dr. M.L. Agarwal and one Dr. B. Swaroop. The two Medical Officers, after postmortem examination, recorded three ligature marks, two as ante mortem injuries and one as postmortem injury. They opined in the autopsy report (Ext. A –6) that the deceased had died of asphyxia as a result of strangulation. However, 4 they also preserved the viscera. Meanwhile, on 04.08.1986, at about 05:40 P.M., Sub Inspector Zora Singh (P.W. 10) lodged first information report (Ext. A –13) at police station Kotwali Almora, against accused / appellant Sabira Begum and Smt. Radha Devi (co- inmate with the deceased), relating to offence punishable under Section 302 of I.P.C., and started the investigation suspecting their role in commission of murder of the deceased. The crime was partly investigated by P.W. 11 Station House Officer Dinesh Chandra Singh Rawat. Thereafter, the investigation appears to have been transferred to CBCID, and concluded by P.W. 12 Inspector K.R. Tamta, who submitted charge sheet (Ext. A –23) against accused / appellant Sabira Begum, Radha Devi, and Vijay Kumar Raizada, Deputy Jailer, for their trial in respect of offence punishable under Section 302 read with Section 34, and under Section 120-B 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., appears to have committed the case for trial to the court of sessions. Learned Sessions Judge, Almora, on finding that accused Radha Devi has absconded, separated her case and proceeded with the trial of accused / appellant Sabira Begum and Vijay Kumar Raizada. After hearing the parties, learned Sessions Judge, Almora, on 11.06.1998, framed charge against accused Sabira 5 Begum and the co-accused, relating to offence punishable under Section 302 read with Section 34, and one punishable under Section 120-B of I.P.C., separately, that they have committed murder of Parwati Devi with common intention with co-accused Radha Devi. Both the accused, namely Sabira Begum and Vijay Kumar Raizada pleaded not guilty, and claimed to be tried. On this, prosecution got examined P.W. 1 Madan Lal Sah, Advocate (who was counsel of the deceased in the murder case in which she was lodged in jail); P.W. 2 Dr. R.C. Dimiri (who was Incharge Medical Officer of District Jail, Almora); P.W. 3 Roshan Lal (sentry of the District Jail, Almora); P.W. 4 Ranjit Singh (an official in the district jail); P.W. 5 Smt. Sarbati Devi (a female warder in the district jail with the accused Sabira Begum); P.W. 6 Dr. M.L. Agarwal (one of the two doctors who conducted postmortem examination); P.W. 7 Mohd. Umar (an employee of the District Jail, Almora); P.W. 8 Brahama Nand (male warder); P.W. 9 Dr. M.S. Laspal; P.W. 10 Sub Inspector Zora Singh (who lodged the FIR, and started investigation of the case); P.W. 11 S.H.O. Dinesh Chandra Singh Rawat (who partly investigated the case), and P.W. 12 Inspector K.R. Tamta (who completed the investigation). The oral and documentary evidence was put to the accused under Section 313 of Cr.P.C., in reply to which they alleged the same to be false. However, they did not deny that Parwati Devi was lodged in Almora Jail, and died in the 6 female barrack. No evidence in defence was adduced. The trial court, after hearing the parties, found accused / appellant Sabira Begum guilty of charge of offence punishable under Section 302 read with Section 34 of I.P.C. that she committed murder of Parwati Devi, with common intention with co-accused Radha Devi. However, the trial court found accused Vijay Kumar Raizada not guilty of the charge, and acquitted him from the charge of offence punishable under Section 302 read with Section 120-B of I.P.C. Aggrieved by judgment and order dated 28.06.2000, passed by Sessions Judge, Almora, in Sessions Trial No. 57 of 1995, convict Sabira Begum filed this appeal before the Allahabad High Court on 4th of July 2000, where the same was admitted on 5th of July 2000. The appeal is received by this court under Section 35 of the U.P. Re- organization Act, 2000 (Central Act No. 29 of 2000), for its disposal. 5) Before further discussion we think it just and proper to mention here the ante mortem injuries and postmortem injury found on the dead body of the deceased by Dr. M.L. Agarwal (P.W. 6), who conducted postmortem examination with another Medical Officer, Dr. B. Swaroop, and prepared autopsy report (Ext. A –6). The ante mortem injuries and postmortem injury are being reproduced as under: Ante mortem injuries: 7 Two ligature marks present over lower part of neck below the thyroid. Marks were transverse and continuous. The breadth of each mark is 1.5 cm. The base of the grove soft and reddish. Abrasions and ecchymosis round about the edges of the ligature mark present. More abraded on the right side of the mark. Subcutaneous tissue under the mark found fractured and ecchymosed. Postmortem injury: Ligature mark oblique and non-continuous found between the chin and larynx. It is dark brown and parchment like. There is complete absence of bleeding and injection of vessels in the underlying tissues. The two Medical Officers who conducted the postmortem examination opined that the cause of death is asphyxia as a result of strangulation. 6) From the above medical report read with statement of P.W. 6 Dr. M.L. Agarwal, it is established on the record that Parwati Devi died homicidal death in the intervening night of 3rd and 4th of August 1986. Now, we have to examine and see, whether, the charge as against accused / appellant Sabira Begum, that it was she who committed murder of Parwati Devi, is established, or not. 8 7) P.W. 1 Madan Lal Sah, an Advocate, who was representing Parwati Devi (deceased) in a case relating to offence punishable under Section 302 of I.P.C. has stated that in the month of July 1986, said case was fixed and Parwati Devi was brought from jail in connection with said case. The witness further states that on that day she told him that a female warder is torturing and harassing her in the jail. P.W. 1 Madan Lal Sah further states that she had threatened her to kill. The witness further stated that on this he moved an application before the court on 25.07.1986. According to said witness after the death of Parwati Devi, on getting information, he also stood witness at the time of preparation of inquest report (Ext. A –1). 8) P.W. 2 Dr. R.C. Dimri, the then Incharge Medical Officer of the jail, has stated that after the incident of 3rd and 4th of August 1986, in the morning he was told about the death of a female inmate (Parwati Devi), on which he went to the barrack and saw dead body of the deceased hanging. He also saw another inmate Radha Devi inside the barrack. This witness has further stated that accused Sabira Begam, warder, opened the gate and she had not put any lock in it. 9) P.W. 3 Roshan Lal, an employee of the District Jail, Almora, has stated that in the intervening night of 3rd and 4th of August 1986, he was on duty at the gate from 06:00 P.M. to 10:00 P.M. (on 03.08.1986). Mohd. 9 Umar was the Chief Head Warder during those days. He has further stated that in that night warder Fateh Singh was on duty at the gate from 02:00 A.M. to 06:00 A.M. (04.08.1986). He has further stated that after Sabira Begum informed about the death of Parwati Devi, a siren was blown. P.W. 4 Ranjit Singh, another employee of the jail, has stated that he came to know of death of Parwati Devi on 04.08.1986. 10) P.W. 5 Sarbati Devi has stated that she and Sabira Begum were warders in the jail, and Shanti Devi was the Head Warder (female). The witness further states that on the day of incident she was on duty from 06:00 P.M. to 12:00 P.M. in the female barrack. Thereafter, accused Sabira Begum was on duty from 12:00 midnight to 06:00 A.M., and during that period Parwati Devi died. 11) P.W.7 Mohd. Umar, Chief Head Warder, has stated that he came to know about the death of Parwati Devi only in the morning (04.08.1986), on which he along with Incharge Medical Officer Dr. Dimri and Deputy Jailer went to the female barrack. The witness also corroborates the fact that accused Sabira Begum had not put any lock in the female barrack, and the Jailer got annoyed at Sabira Begum, as to why there was no lock in the barrack. 10 12) P.W. 8 Brahama Nand has stated that Sabira Begum who was on duty at the time of incident, when asked, told everything O.K. in the barrack. P.W. 9 Dr. M.S. Laspal has stated that when he reached in the barrack on 04.08.1986 with Sub Divisional Magistrate, who got information about the incident, it was found that body of Parwati Devi was hanging in the barrack. 13) P.W. 10 Sub Inspector Zora Singh has stated that he got information about the incident at the police station Kotwali Almora on 04.08.1986, at 07:15 A.M., and he went to the jail and got prepared inquest report of the dead body of Parwati Devi under instructions of the Sub Divisional Magistrate. He has further stated that after completing necessary formalities, dead body was sent for postmortem examination. The witness has further stated that since the incident appeared suspicious he lodged first information report (Ext. A – 13) at 17:40 hours on 04.08.1986. He further states that on instructions of the Superintendent of police, he started investigation, which was later transferred to Sri Rawat, Station House Officer (P.W. 11). P.W. 11 S.H.O. Dinesh Chandra Singh Rawat has stated that he continued with the investigation, and finally the investigation was transferred to CBCID. P.W. 12 Inspector K.R. Tamta has stated that he completed the investigation and submitted charge sheet against accused / appellant and other two co-accused. 11 14) After going through the entire evidence on record and re-assessing it, we are of the view that it is sufficiently proved on the record by the prosecution that before the day of incident accused / appellant Sabira Begum, who was warder in the female barrack, had threatened Parwati Devi to kill her, regarding which her counsel (P.W. 1 Madan Lal Sah, Advocate) reported the matter to the Sessions Judge. It is also proved on the record from the report of the Chief Judicial Magistrate that under instructions of the Sessions Judge, incident of threatening was enquired and found true. On 2nd of August 1986, report of Chief Judicial Magistrate was sent by the Sessions Judge to the Superintendent of District Jail for necessary action, and in the intervening night of 3rd and 4th of August 1986, when accused Sabira Begum, warder, was on duty, Parwati Devi died unnatural death. 15) From the medical evidence as discussed above, it is clear that there were ante mortem and postmortem ligature marks which clearly indicated that dead body of Parwati Devi was hanged after strangulating her. In the postmortem examination report, the two Doctors have opined that deceased died of strangulation. When all the circumstances are read together, this court finds the chain of circumstances is complete to show that accused Sabira Begam committed murder of Parwati Devi in the intervening night of 3rd and 4th of August 1986, as such, we find no reason to interfere with the 12 conviction and sentence recorded by the trial court against her. 16) Therefore, the appeal is dismissed. Accused / appellant Sabira Begum is on bail. Her bail is cancelled. She shall surrender before the trial court to serve out the remaining part of sentence awarded against her. Let the record of the case alongwith copy of this judgment be sent to the trial court for compliance. A copy of this judgment be also sent to the Superintendent of District Jail, Almora, and to the Inspector General (Prisons) of Uttar Pradesh, at Lucknow. (Nirmal Yadav, J.) (Prafulla C. Pant, J.) Dt. October 27, 2010. H. Negi