IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No. 1424 of 2001 (Old No. 1101/1996) Suraj Lal & Another .…. Appellants/Accused Versus State of U.P. …………… Respondent Mr. Pankaj Purohit, learned Counsel for the appellants/convict. Mr. Nandan Arya, learned AGA for the State/respondent. ……………………… November 3, 2009 Coram: Hon. B.C. Kandpal, J. Hon. Dharam Veer, J. (Per : Hon. Dharam Veer, J.) This appeal, preferred by the appellants under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.), is directed against the judgment and order dated 25.6.1996 passed by the Sessions Judge, Chamoli (Gopeshwar) in Sessions Trial No. 4 of 1995, State v. Suraj Lal & Anr., whereby learned Sessions Judge has convicted the appellants/accused, viz., Suraj Lal and Smt. Mohani Devi under Section 302 read with Section 34 of Indian Penal Code, 1860 (for short, IPC) and sentenced each of the appellants/convicts to undergo rigorous imprisonment for life. 2. Briefly stated facts of the case are that the accused appellant no. 1 Suraj Lal got married to the deceased Bhavani Devi five months prior to the incident. Accused appellant no. 2 Mohani Devi is the aunt of Suraj Lal. Appellants/accused Suraj Lal, Mohani Devi and the deceased Bhavani Devi were living in the same house in village Jalai. Maternal home of the deceased was also situated in the same village. Suraj Lal was having illicit 2 relationship with his aunt Mohani Devi, which resulted in frequent quarrel between the deceased Bhavani Devi and Suraj Lal and they were not having good terms with each other. Suraj Lal also used to beat her wife Bhavani Devi, the deceased. On 14.9.1994 at 4 pm, an FIR Ex. Ka-1 was lodged with the Patti Patwari, Bhiri by PW1 Manohari Lal with the averment that his niece Smt. Bhavani Devi was killed by her husband Suraj Lal and Mohani Devi at around 2 pm in the present day at their house in village Jalai. On the basis of this report, chick FIR Ex. Ka-3 was prepared on the same day at 4 pm by PW7 Pushkar Singh, Patwari. (In rural hilly areas of State of Uttarakhand, the Patwaris and certain revenue officials are vested with police powers vide U.P. Govt. Notification No. 494/VIII-418- 16 dated 7/3/1916). This witness has conducted the primary investigation into this case. Necessary entries were made by him in the GD. Copy of GD is Ex. Ka-4. Thereafter he reached at the spot on the same day and inspected the dead body and prepared the inquest report Ex. Ka-5. He also prepared the photo lash Ex. Ka-6 and site plan Ex. Ka-7 on the same day. He also recovered a rope of jute from the place of occurrence and prepared the fard Ex. Ka-8. He wrote a letter to CMO on 15.9.1994 for conducting the post mortem of the dead body, that letter is Ex. Ka-9. Post mortem of the dead body was conducted by PW5 Dr. Mayank Upadhyaya on 16.9.1994 at 1.30 pm, who also prepared the post mortem report Ex. Ka-2. Thereafter, on account of strike of Patwaris, the investigation of this case was entrusted to regular police and further investigation was conducted by Fany Singh, Station Officer, PS Ukhimath, Chamoli, who recorded the statements of the witnesses and after completing the investigation filed the chargesheet Ex. Ka-10 under Section 302 IPC against the appellants/accused. 3 3. Learned Chief Judicial Magistrate, Chamoli after giving the necessary copies of the documents to the appellants/accused as prescribed under Section 207 Cr.P.C., committed the case to the Court of Sessions on 13.1.1995. 4. On 31.1.1995, learned Sessions Judge, Chamoli (Gopeshwar) framed the charge against the appellants/accused under Sections 302 read with Section 34 IPC. The charge was read over and explained to each of the appellants/accused, who pleaded not guilty and claimed to be tried. 5. To prove its case, the prosecution has examined PW1 Manohari Lal, the complainant; PW2 Rukmani Devi, mother of deceased Bhavani Devi; PW3 Km. Gudali, younger sister of the deceased; PW4 Narendra Singh, Gram Pradhan of Gramsabha Jalai-Sursal; PW5 Dr. Mayank Upadhyaya, who conducted the post mortem and prepared the post mortem report; PW6 Rajnarayan, elder brother of the deceased and PW7 Pushkar Singh, Patwari who conducted the primary investigation into the case. 6. Thereafter, statements of each of the appellants/convicts were recorded under Section 313 CrPC. The oral and documentary evidence were put to them in question form, who denied the allegations made against them and stated that they have been falsely implicated in the case. However, in defence, they did not produce any documentary or oral evidence. 7. After hearing learned counsel for the parties and after appreciating the evidence available on record, learned Sessions Judge, Chamoli (Gopeshwar) vide his judgment and order dated 25.6.1996 convicted and 4 sentenced to each of the appellants/accused as discussed above. Against the aforesaid judgment and order dated 25.6.1996, the appellants/convicts have preferred the present appeal. 8. We have heard learned Counsel for the parties and have carefully perused the entire material available on the record. 9. Before any further discussion, it would be pertinent to mention here the ante mortem injury found on the body of the deceased Bhavani Devi and state of her some vital organs found at the time of post mortem examination on 16.9.1994 at 1.30 pm, which were recorded by PW5 Dr. Mayank Upadhyaya in the post mortem report Ex. Ka-2 and the same are reproduced as below: “Eyes – Bulging out of orbits. Tongue swollen, protruding between teeth, Rectum protruding Ante mortem injuries – (1) A contusion transversally placed just about (3 cm above) suprasternal notch, 8 cm x 3 cm. On cutting ecchymosis present. Opinion – In my opinion cause of death is asphyxia as a result of strangulation.” 10. To prove the aforesaid post mortem report Ex. Ka-2, the prosecution has examined PW5 Dr. Mayank Upadhyaya, who has proved the contents of the same and has stated that the deceased Bhavani Devi was 14 weeks’ pregnant at the time of her death. He has further stated the injury pointed out in the post mortem report can only be caused by pressing the neck with hand. In his cross- examination, he has stated that mark on the neck did not appear to be of a rope. 11. To further prove its case, the prosecution has examined PW1 Manohari Lal, the complainant who has stated that the deceased was the daughter of his late elder 5 brother Nandlal and she was married to appellant/accused Suraj Lal, resident of same village Jalai. He has further stated that quarrel often used to take place between the appellant/accused Suraj Lal and the deceased Bhavani Devi because of illicit relationship of Suraj Lal with his aunt Mohani Devi. Deceased had many times narrated about the said quarrel to her mother Rukmani Devi (PW2). He has further stated that on 14.9.1994, when he was coming in the noontime to his house for the lunch, he saw that Suraj Lal and Mohani Devi were quarrelling with the deceased Bhavani Devi, who were all living in the same house, which happened to be situated in the way to his house. The quarrel was on the issue of cutting the tree leaves. The appellants/accused became silent on seeing him. Thereafter he came to his house. After sometime Km. Gudali (PW3) came weeping to the house and said to her brother and mother that appellants/convicts were strangulating her sister Bhavani Devi in the room. Thereafter he, his nephew Rajnarayan (PW6) and mother of the deceased Rukmani Devi (PW2) went to the house of appellants/accused where they saw that appellants/accused were bringing the deceased in the outer room and Mohani Devi started rubbing the neck of the deceased on seeing them. Many villagers had gathered there. The appellants/accused told that they had killed her (Bhavani Devi) and further challenged them to take any possible action. Thereafter he asked his nephew Rajnarayan (PW6) to write the report, who wrote it on his dictation. He had signed on that report Ex. Ka-1. Thereafter Patwari, Gram Pradhan and Kanoongo came there in the evening and inquest report (Ex. Ka-5) was prepared. He also signed on the inquest report. On the next day, the dead body was sent for the post mortem to 6 Gopeshwar. This witness was cross-examined at length by the defence counsel but he could not be shaken. 12. PW2 Rukmani Devi, mother of the deceased, has corroborated the statement of PW1 Manohari Lal. 13. PW3 Km. Gudali, younger sister of the deceased, has stated that her sister Bhavani Devi was married to the appellant/accused Suraj Lal. This witness had identified both the appellants/accused before the trial court and has further stated that Suraj Lal used to beat her sister (deceased). She was playing in the dhar (riverine) on the date of incident. When she saw her sister going from the dhar, she called her brother Rajnarayan (PW6). He brought her sister in the house. Thereafter her mother Rukmani Devi (PW2) sent her to the house of the appellants/accused to see her sister. When she reached at the doorstep of house of the appellants/accused, she saw that Suraj Lal was holding the neck of her sister Bhavani Devi while Mohani Devi was holding her hands. On seeing this, she returned to her home and told this incident to her mother and brother. At that time, her uncle Manohari Lal (PW1) was also present in the house. Thereafter she, her mother, brother and uncle went to the house of the deceased Bhavani Devi, where she saw that her sister was lying dead. This witness was cross-examined at length by the defence counsel but nothing has come out in her deposition which may create any doubt about her deposition. 14. PW4 Narendra Singh, Gram Pradhan of Jalai-Sursal Gramsabha has stated in his deposition that on 14.9.1994 at about 4-4.30 pm, Rajnarayan had come to his shop at Bhiro and told him that his sister Bhavani Devi had died in her house and asked him to come on the spot. He went 7 to the spot where he saw the dead body of Bhavani Devi. Many villagers were also present there. At that time, the mother of the deceased Rukmani Devi, her brother Rajnarayan and uncle Manohari Lal were present there, who were telling that appellants/accused had killed Bhavani Devi. Lateron Patwari and Kanoogo also reached on the spot. Inquest report was prepared on the spot on which he had also put his signature. The dead body was sent for post mortem on 15.9.1994. In his cross- examination, he has stated that he did not know as to how Bhavani Devi died. Nothing adverse has surfaced in his testimony. 15. PW6 Rajnarayan has corroborated the statements of PW2 Rukmani Devi and PW3 Km. Gudali. 16. PW7 Pushkar Singh, Patwari has stated that Rajnarayan had brought a written report Ex. Ka-1 on 14.9.1994 at 4 pm. On the basis of that report, he prepared the chick FIR Ex. Ka3 and made the necessary entries in the GD. Copy of GD is Ex. Ka-4. He has further stated that he enquired from Rajnarayan on the same day and sent his peon Vikram Singh to call the Kanoongo. Thereafter he reached at the place of occurrence along with Rajnarayan, where 10-15 villagers including the Gram Pradhan were present. He prepared the inquest report Ex. Ka-5 on the spot after Kanoongo had arrived there. On the same day, he prepared the photo lash Ex. Ka-6, site plan Ex. Ka-7 and memo of inspection Ex. Ka-8. He also wrote a letter Ex. Ka-9 to CMO, Chamoli (Gopeshwar) for conducting the post mortem of the dead body. The dead body was sent for post mortem on 15.9.1994. The appellants/accused were arrested by him on the same day. During the course of investigation, he recorded the statements of some of the witnesses. This 8 witness has further stated that on account of strike of Patwaris, he requested the Naib Tehsildar to transfer the investigation of this case to regular police. Thereafter regular police conducted the investigation and after completion of the investigation, chargesheet Ex. Ka-10 under Section 302 IPC was filed against the appellants/accused. 17. Thereafter, statements of each of the appellants/accused were recorded under Section 313 CrPC. The oral and documentary evidence were put to them in question form, who denied the allegations made against them and stated that they have been falsely implicated in the case. However, in defence, they did not produce any documentary or oral evidence. 18. Mr. Pankaj Purohit, learned Counsel for the appellants/convicts strenuously argued that the deceased could not have been killed in the manner deposed to by the eyewitnesses and there is conflict between the medical evidence and ocular testimony. He further submitted that the deceased actually committed suicide by hanging with a rope and rope was also recovered from the place of occurrence. Appellants/accused when saw her hanging, they cut the rope and brought her down and started rubbing her neck and the ligature mark was also found on the neck of the deceased. He further submitted that the whole prosecution story is based on the wrong assessment of the happenings that took place there on the date of incident and, therefore, the appellants/accused are entitled to get the benefit of doubt. 19. Having discussed the manner and method of assault, the position of the victim, the opportunity available to the witnesses to see the occurrence like their distance, 9 presence of light and after considering many similar factors while judging the reliability of ocular testimony, we are unable to accept the submissions made by learned Counsel for the appellants/convicts. PW3 Km. Gudali, an eyewitness of the incident has stated that Suraj Lal used to beat her sister (deceased). On the date of the incident i.e. on 14.9.1994, she was playing in the dhar (riverine). When she saw her sister going from the dhar, she called her brother Rajnarayan (PW6), who brought her sister in the house. Thereafter her mother Rukmani Devi (PW2) sent her to the house of the appellants/accused to see her sister. When she reached at the doorstep of house of the appellants/accused, she saw that Suraj Lal was holding the neck of her sister Bhavani Devi while Mohani Devi was holding her hands. On seeing this, she returned to her home and told this incident to her mother and brother. At that time, her uncle Manohari Lal (PW1) was also present in the house. Thereafter she, her mother, brother and uncle went to the house of the deceased Bhavani Devi, where she saw that her sister was lying dead. This witness had identified both the appellants/accused before the trial court. This witness was cross-examined at length by the defence counsel but nothing has come out in her deposition which may create any doubt about her deposition. Furthermore, her statement also stands corroborated by the deposition of PW1 Manohari Lal, PW2 Rukmani Devi and PW6 Rajnarayan. 20. What is more, in the post mortem report Ex. Ka- 2, it has been decisively stated that the cause of death was asphyxia as a result of strangulation. Even second opinion of Dr. Vinod Kumar was also taken, who agreed with all the findings recorded by PW5 Dr. Mayank Upadhyaya in the aforesaid post mortem 10 report. In his deposition PW5 Dr. Mayan Upadhyaya has very firmly stated that the injury recorded by him on the body of the deceased could only by caused by pressing the neck with the hand. Thus, he excluded the other possibilities. Moreover, neither the neck of the deceased was found elongated nor the vertebra connecting the neck was found broken at the time of conducting the post mortem. Thus, the possibility of suicide by hanging, as has been stated by the learned Counsel for the appellants/accused, is totally in contrast with the medical evidence. Thus, the prosecution story stands corroborated by the medical evidence. We are, therefore, in total agreement with the finding recorded by the trial court that Bhavani Devi died of strangulation by the appellants/accused. 21. It is also important to note here that the said incident happened at around 2 pm on 14.9.1994 and it was reported immediately at 4 pm on the same day. The police station was situated at a distance of nearly three kilometers from the place of occurrence. Thus, the FIR is also prompt. 22. Thus, the evidence adduced by the prosecution totally proves its case that accused appellants had strangulated Bhavani Devi at around 2 pm on 14.9.1994. Accused appellant Suraj Lal was living with the other accused appellant Mohani Devi, his aunt in the same house. Undisputedly, the deceased died in his house where they were living and no other person’s presence has been alleged on the place of occurrence. Hence, the facts and circumstances of the case also support the prosecution story. 11 23. Learned Counsel for the appellants/accused further argued that the prosecution has failed to establish any motive on the part of the appellants/accused behind her killing as no allegation regarding any dowry demand, etc. has been made against the appellants/accused. We are unable to accept his submission as it is proved from the evidence discussed above that accused appellant no. 1 Suraj Lal had illicit relationship with her aunt Mohani Devi, accused appellant no. 2, which resulted in bitter relationship with his own wife Bhavani Devi, the deceased. This finally led to her strangulation by the appellants/accused. Even otherwise, there is no such principle or rule of law that where the prosecution fails to prove the motive for commission of the crime, it must necessarily result in acquittal of the accused. Where the ocular evidence is found to be trustworthy and reliable and finds corroboration from the medical evidence, a finding of guilt can safely be recorded even if the motive for the commission of the crime has not been proved. Moreover, in the present case, as discussed supra, the motive behind the crime is also proved. Accused appellant Suraj Lal was having illicit relationship with accused appellant Mohani Devi, his aunt. It resulted in frequent quarrel between the deceased Bhavani Devi and her husband Suraj Lal and, therefore, the accused appellants strangulated her to death with pre-determined mind and with common intention to kill her. 24. Having given our careful consideration to the submissions made by learned Counsel for the parties and after going the papers available on record, we are clearly of the opinion that the prosecution has succeeded in establishing its case against the accused appellants beyond any shadow of doubt and we are in total agreement with the view and the findings recorded by the 12 learned Sessions Judge. Therefore, the conviction of the accused appellants under Section 302 read with Section 34 IPC is justified and sentence of rigorous imprisonment for life awarded to each of the appellants is commensurate with the offence committed by the appellants/convicts. 25. In the result, the appeal being devoid of merit is hereby dismissed. Judgment and order dated 25.6.1996 passed by the Sessions Judge, Chamoli (Gopeshwar) in Sessions Trial No. 4 of 1995, State v. Suraj Lal & Anr. convicting the appellants/accused, viz., Suraj Lal and Smt. Mohani Devi under Section 302 read with Section 34 IPC is upheld and sentence awarded to each of the appellants/convicts to undergo rigorous imprisonment for life is hereby also affirmed. The appellants are on bail. Their bail bonds are cancelled. They shall surrender forthwith to undergo the sentences imposed upon them. 26. Let a copy of this order be sent to the trial court for its compliance. Lower court record be sent back. (Dharam Veer, J.) (B.C. Kandpal, J.) 03.11.2009 03.11.2009 Prabodh