IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Jail Appeal No. 239/2008 Narayan Dutt and another …….. Appellants. Versus State …. Respondent. Smt. Nishat Intezar, learned Amicus Curiae for the appellants Sri Nandan Arya, 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 23-8-2008, passed by District and Sessions Judge, Champawat, in S.T.No. 01/2007, State Vs. Narayan Dutt and another, thereby convicting accused Narayan Dutt and Tej Giri U/Ss 302 and 201 I.P.C. and sentencing both of them to undergo Life Imprisonment and a fine of Rs. 10,000/- U/S 302 I.P.C. and in default of payment of fine to further undergo R.I. for one year and R.I. for seven years and a fine of Rs. 5,000/- each U/S 201 I.P.C. and in default of payment of fine to further undergo imprisonment for six months. 2- Brief facts of the case giving rise to this appeal are that on 29-08-2006, at about 4p.m. in the fair of Suryakhasti, organized in village Ramak, accused Narayan Dutt and Tej Giri accompanied Dalip 2 Singh son of complainant Bhim Singh. Dalip Singh did not return his home from the above fair and the village people made search of him and found his dead body lying in Pokhari Panchayat. The written report of the occurrence, Ext. Ka.1, was lodged by Bhim Singh at Patwari Circle Mangal Lekh on 3-9-2006 for taking action in the matter. 3- Sri Santosh Ram, Patwari started investigation in the case. He, on the basis of written report, prepared chick F.I.R. Ext. Ka.14 and registered a case against the accused persons. He, thereafter visited the place of occurrence and prepared site-plan, Ext. Ka.15. He performed inquest on the dead body and prepared inquest report, Ext. Ka.3, sample seal, Ext. Ka.16, sketch dead body, Ext. Ka.17, Police Form No.13, Ext. Ka.18, letter to C.M.O. Ext. Ka.19, and sent the dead body for post mortem. He also recorded statements of witnesses on various dates. In the meantime he was transferred and the investigation was handed over to Shiv Dutt Joshi, Patwari on 21-9-2006. He arrested the accused Tej Giri on 21-9-2006, vide arrest memo, Ext. Ka.6. He gave information of arrest of accused persons to Sri Ganesh Giri vide memo, Ext. Ka.7. Accused Narayan Dutt was arrested by the I.O. on 10-10-2006 vide arrest memo, Ext. Ka.8 and gave information to the family members of the accused vide memo, Ext. Ka.9. On 11.10.2006 the I.O. got recovered the stone used in the commission of crime at the instance of accused Narayan Dutt from the place of occurrence and prepared recovery memo, Ext. Ka.2. On 27.10.2006 the I.O. wrote letter Ext. Ka.11 to the 3 C.J.M. Champawat for sending the bloodstained and simple earth to the Forensic Laboratory. After completing investigation, the I.O. submitted charge sheet, Ext. Ka.10 against the accused persons. 4- The autopsy on the dead body of Dalip Singh was conducted by Dr. P.D. Pangaria, Medical Officer, C.H.C. Lohaghat on 4-9-2006 at 9.00p.m. and found that blister was present all over body, hair of stratum were lost, eyeball was swelling and protruded out and maggot present in the body. The doctor also found - 1- Depressed fracture in scalp at right temporal lobe. 2- Ear was lacerated right side. 3- Left side frontal bone was fractured. 4- Maggot present in mouth. 5- Right side femur was fractured. In internal examination, the doctor found that the frontal bone of left side scalp was fractured, right side temporal bone was depressed, clotted blood was present in brain, lungs were reddish brown in colour and in the opinion of the doctor the death was caused about 6 to 9 days back from post mortem. He opined that the death had occurred due to haemorrhage and injury to brain tissue. The Medical Officer prepared autopsy report, Ext. Ka.4. 5- After receipt of charge sheet, the C.J.M. Champawat, vide his order dated 31.1.2007, committed the case to the court of Sessions. 4 6- The District and Sessions Judge, framed charge U/Ss 302 and 201 I.P.C. against the accused persons, to which they pleaded not guilty and claimed to be tried. 7- The prosecution, in support of its case, examined P.W.1, Bhim Singh, complainant, P.W.2, Rewadhar, P.W.3, Bahadur Singh, P.W.4, Smt. Gita, P.W.5, Sher Singh, P.W.;6, Ishwari Dutt, P.W.7, Dr. P.D. Pangaria, P.W.8, Shiv Dutt Joshi and P.W.9, Santosh Ram. 8- The accused persons, n their statement U/S 313 Cr.P.C. have denied the prosecution allegations and alleged that they have been falsely implicated in the case. However, they did not adduce any evidence in their defence. 9- The learned Sessions Judge, after considering the entire evidence on record and having heard learned counsel for the parties, held accused/appellants Narayan Dutt and Tej Giri guilty U/Ss 302 and 201 I.P.C. and sentenced both of them to undergo Life Imprisonment and a fine of Rs. 10,000/- each U/S 302 I.P.C. and in default of payment of fine to further undergo R.I. for one year and R.I. for seven years and a fine of Rs. 5,000/- each U/S 201 I.P.C. and in default of payment of fine to further undergo imprisonment for six months. 5 10- Feeling aggrieved by the aforesaid judgment and order, the accused have preferred this appeal before this Court. 11- We have heard Smt. Nishat Intezar, learned Amicus Curiae for the appellants and Mr. Nandan Arya, learned A.G.A. and perused the record. 12- Learned Amicus Curiae first of all raised the submission that according to the prosecution case the deceased was missing from the night of 29-8-2006 but no missing report was lodged and the F.I.R. has been lodged with a delay of four days, which is fatal to the prosecution case. 13- We do not find any substance in the above submission of learned Amicus Curiae. As per the prosecution version the deceased Dalip Singh had gone to the fair of Suryakhasti on 29-8-2006 along with accused Narayan Dutt and Tej Giri and did not return to his home. The village people started his search and his dead body was found in Khud side near Pokhari Panchayat on 3-9-2006 and soon thereafter the written report Ext. Ka.1, was lodged at the Patwari Circle on 3-9-2006 by Bhim Singh complainant. It has come in the evidence of complainant that he along with other village people was making search of the deceased. Therefore, in the above circumstances of the case, non- lodging of missing report, does not affect the prosecution case. It is proved beyond doubt that as soon as the dead body of the deceased was seen by the village people, the written report, Ext. Ka.1 was lodged 6 with the Patwari at 8a.m. the same day, therefore, we do not find that the F.I.R. has been lodged with delay. 14- Learned Amicus Curiae next submitted that P.W.3, Bahadur Singh, has been examined as eyewitness of the occurrence, but reliance cannot be placed on his testimony because this witness kept mum for a long period and the I.O. has recorded his testimony on 24-9-2006 after about 26 days of the occurrence. 15- From perusal of statement of P.W.3, Bahadur Singh, it reveals that he had witnessed the occurrence in the night of 29-8-2006 at about 11.30 p.m. but he did not disclose the incident to any one due to the fear of the accused persons. This witness has specifically deposed that the accused persons extended threats to his life if he would tell the incident to any one and he for the first time disclosed the incident before the Patwari on 24-9-2006, when he interrogated him. On overall reading of the statement of this witness, shows that he is a natural witness of the occurrence. He has deposed that he had also gone in the Suryakhasti fair. He was not in the company of both the accused and Dalip Singh, but he was coming behind them. He further deposed that both the accused and Dalip Singh were moving ahead of him in the torch light. These persons were talking in a loud voice near Pokhari Panchayat. All the three persons quarrelled there, Tej Giri pushed Dalip Singh down and Narayan Dutt gave a stone blow to Dalip Singh which hit him in the head or chest. Dalip Singh was crying. He asked 7 the accused persons what are doing, at this accused replied if you would tell the incident to any one, he would also be killed by them. This witness further deposed that he had seen the incident in the torch light. Thereafter he ran to his home and due to fear of accused he did not tell the incident to any one and he narrated the incident to Patwari Ji after 20 to 25 days. In his cross examination this witness has admitted that two sisters of deceased Dalip Singh are married in his village. He has further deposed that Pan Singh is the elder sister’s husband of deceased Dalip Singh and Pan Singh is his cousin. He also deposed in his cross- examination that at the time of incident no one was coming behind him. The dead body of the deceased was thrown down the way and when the dead body was traced out he was not present there, other people of the village were there. He also deposed in his cross- examination that he had seen the occurrence from a distance of 10-15 paces behind the accused and the deceased. No suggestion has been put to this witness from the accused side, which may render his testimony as unreliable. The accused persons also did not suggest the reason as to why this witness was telling against them. We find the testimony of this witness wholly reliable and trustworthy. In our opinion he is a natural witness of the occurrence. If this witness remained silent for about 26 days due to the fear of his life at the hands of accused persons and narrated the actual incident for the first time before the I.O. when he was interrogated, his testimony cannot be thrown out, particularly, when the prosecution has been 8 successful in establishing the other relevant circumstances of the case. 16- Now we deal with the circumstantial evidence in the case. The first circumstance relied by the prosecution is that on 29-8-2006 Suryakhasti fair was held in village Ramak and deceased Dalip Singh had gone to the fair in the company of accused Narayan Dutt and Tej Giri and he did not return back. To prove this fact prosecution has examined P.W.1, Bhim Singh, who is father of Dalip Singh deceased. He has deposed that on 29-8-2006 in the evening at about 4p.m. his son Dalip Singh had gone to Suryakhasti fair along with accused Narayan Dutt and Tej Giri but he did not return back. P.W.4, Smt. Gita Devi, widow of deceased also deposed the same fact. P.W.6, Ishwari Dutt, Sarpanch of the village also deposed that Dalip was missing from his house from 29-8-2006 and he had heard that deceased had gone to see the fair along with the accused persons. The accused persons belong to the same village, therefore, going together in the fair by the deceased and the accused cannot be disputed. Therefore, the prosecution has been successful in establishing this fact that deceased Dalip Singh and accused persons had gone to see the Suryakhasti fair together at about 4p.m. on 29-8-2006. 17- The next circumstance is of last seen. P.W.2, Rewadhar is the witness of last seen. He has deposed that on 29-8-2006 in the night at about 11 p.m. accused persons and deceased had come to his home. On that day there was Suryakhasti mela in 9 village Ramak. They asked him that they would take rest at his home for some time. Then after taking rest for a while all the three persons went away. He further deposed that after about 6 hours both the accused Tej Giri and Narayan Dutt came back to his home. He asked them about the whereabouts of Dalip Singh then they replied that he had torch with him, hence he went to his home. No suggestion whatsoever has been given to this witness as to why he would falsely depose against the accused persons. Therefore, the prosecution has fully proved that deceased Dalip Singh was lastly seen in the company of accused Tej Giri and Narayan Dutt by this witness in the night of incident at about 11p.m. and thereafter his dead body was found lying down the road near Pokhari Panchayat by the villagers. 18- The other important evidence is extra- judicial confession of the accused persons before P.W.5, Sher Singh. This witness has deposed that on 6-9-2006 he had gone to Kuliyal River. At that time it was grooming dark, both the accused persons came to him drunk and confessed before him that they have pushed down Dalip Singh from the rock near Pokhari Panchayat way and killed him by throwing stone on his head and hand. He further deposed that he had narrated this fact to the I.O. on 8-9-2006 and patwari again took his statement on 28.10.2006 and on 11.10.2006 patwari got recovered the stone at the instance of accused Narayan Dutt from the place of occurrence, where he had hidden the stone. This witness also proved recovery memo Ext. Ka.2. In his 10 cross-examination this witness has deposed that he had not seen the incident with his own eyes. He also denied the suggestion that due to relationship with the deceased he is giving concocted statement. P.W.8, Shiv Dutt Joshi, I.O. of the case also proved Ext. Ka.2, recovery of stone which was used by accused Narayan Dutt in the commission of murder of Dalip Singh. Perusal of recovery memo, Ext. Ka.2 reveals that on 11.10.2006 at 7a.m. in presence of witnesses Ramesh Singh and Sher Singh accused Narayan Dutt got recovered the stone near the place of occurrence and the I.O. handed over a copy of the same to the accused Narayan Dutt after obtaining his signature on it. 19- Therefore, from the above circumstances as well as the eyewitness account given by P.W.3, Bahadur Singh the only irresistible conclusion that can be drawn is that on the day of occurrence Suryakhasti mela was held in village Ramak, deceased Dalip Singh had gone in the fair along with accused Narayan Dutt and Tej Singh at about 4p.m., they returned in the night and stayed at the house of Rewadhar, P.W.2 for 10-15 minutes and went away, and they killed Dalip Singh in the way near Pokhari Panchayat, the occurrence was seen by P.W.3, Bahadur Singh who was following them in the night and after about 6 hours accused persons again returned to the house of Rewadhar, stayed there for a while and then went away and the dead body was found by the villagers in the morning of 3-9-2006. 11 20- The ocular version is fully supported by the medical evidence. The post mortem on the dead body was conducted on 4-9-2006 at 9p.m. by Dr. P.D. Pangeria in C.H.C. Lohaghat. The doctor found fracture in scalp at right temporal lobe, left side frontal bone was fractured, right side femur was fractured. In the opinion of the doctor the death was caused due to haemorrhage and injury to brain tissue. He also opined that the injuries could be caused by giving blow on the head and foot by stone. The injuries could be caused 6 to 9 days earlier. In this way we find that the medical evidence fully corroborates the prosecution version. 21- Learned Amicus Curiae also submitted that prosecution has not shown the motive for commission of the crime by the accused/appellants, therefore, the prosecution case cannot be believed. 22- We do not find any force in the above submission of learned Amicus Curiae. P.W.1, Bhim Singh, father of the deceased has deposed in his on oath statement that earlier also accused persons had quarrelled with his son so many times. P.W.3, Bahadur Singh, the eyewitness of the occurrence also deposed that at the time of incident accused persons and deceased Dalip Singh were quarelling. Therefore, it is quite clear that accused persons had animus against the deceased from prior to the incident and they had quarrelled with him earlier also. Hence we find that the prosecution has proved the motive of crime. 12 23- For the discussion made above, we are in full agreement with the decision taken by the learned Sessions Judge and we do not find any infirmity in the impugned judgment. Therefore, the appeal lacks merit and is liable to be dismissed. 24- The appeal is dismissed. The impugned judgment and order passed by the trial court convicting the accused/appellants U/Ss 302 and 201 I.P.C. and sentencing both of them to undergo Life Imprisonment and a fine of Rs. 10,000/- U/S 302 I.P.C. and in default of payment of fine to further undergo R.I. for one year and seven years R.I. and a fine of Rs. 5,000/- each U/S 201 I.P.C. and in default of payment of fine to further undergo imprisonment for six months, is upheld. (Nirmal Yadav, J.) (B.C. Kandpal, J.) Dated: July 02, 2010 ISB