Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 757 of 2001 (Old No. 660 of 1991) Gajoo S/o Madi Resident of Village Kotda, Kalyanpur, P.S. Sahaspur, District Dehradun. …………… Appellant Versus The State …………… Respondent Mr. S.P.S. Pansar, Sr. Advocate assisted by Mr. H.C. Pathak, and Mr Sachin Panwar, Advocates for the appellant. Mr. Amit Bhatt, Addl. Govt. Advocate assisted by Mr. M.A. Khan, Brief Holder for the respondent-State. Coram: Hon’ble Prafulla C. Pant, J. Hon’ble Dharam Veer, J. [Per Hon. Prafulla C. Pant, J.] This appeal preferred under section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), is directed against the judgment and order dated 02.07.1990, passed by learned Sessions Judge, Dehradun, in Sessions trial No. 152 of 1987, whereby accused / appellant Gajoo is convicted under Section 302 of the Indian Penal Code, 1860 (hereinafter referred as I.P.C.) and sentenced to undergo imprisonment for life. 2) Heard learned counsel for the parties and perused the lower court record. 3) Prosecution story, in brief, is that after death of her husband, Tara Devi (deceased) used to live in Village Kotda Kalyanpur with her minor son Guddu (P.W. 4). Rampal, elder son of the deceased used to live separately in the same village. Accused / appellant Gajoo is brother-in- law (DEVAR) of the deceased, who also lives in separate house in the village. Tara Devi (deceased) after death of her husband Gaja Ram had dispute over partition of agricultural land with Gajoo and Rampal. On 1st of July 1987, a ‘SATYANARAIN KATHA’ was organized in the evening in the house of Chetu Ram in Village Kotda Kalyanpur. Many villagers and people from surrounding villages gathered there. Asha Ram (P.W. 2) and Kewal Ram (P.W. 3) along with others left Chetu Ram’s house at midnight on completion of ‘SATYANARAIN KATHA’. When the aforesaid two witnesses were returning to their houses they heard cries of Tara Devi from the side of her house. They were possessed with torches and they lit the same. The aforesaid two witnesses saw that accused / appellant Gajoo was armed with Sickle (DARANTI). He along with Rampal were throttling neck of Tara Devi. When Asha Ram (P.W. 2) and Kewal Ram (P.W. 3) challenged the two, they (accused Gajoo and Rampal) threatened the witnesses of dire consequences. It appears that the accused and the witnesses left the place of occurrence. Thereafter, Guddu (P.W. 4), minor son of the deceased, also came back from ‘SATYANARAIN KATHA’ to his house and found his mother dead. The young child on the next day (02.07.1987) morning informed about the incident to his maternal uncle Badhu Ram (P.W. 1) who used to live in Village Kotda Nahar. On this, Bhadu Ram (P.W. 1) got scribed first information report (Ext. A-1) through one Sadhu Ram Sharma and lodged the same with police station Sahaspur, at 10:30 A.M. On the basis of said report, check report (Ext. A-16) was prepared by the police and entry was made in the general diary, copy of extract of which is Annexure A-17. Sub Inspector Braham Singh (P.W. 6) took up the investigation of the case. He reached at the place of incident and took dead body of Tara Devi in his possession and got prepared the inquest report (Ext. A-6). He also prepared the sketch of the dead body (Ext. A-8); sample seal (Ext. A-9); police form No. 13 (Ext. A-7) and other necessary papers and sent the dead body for postmortem examination to Doon Hospital, Dehradun. The Investigating Officer also took blood stained soil and simple soil from the place of incident. He also prepared site plan (Ext. A-12). On 03.07.1987, Dr. U.K. Chopra conducted the autopsy on the dead body of Tara Devi and prepared postmortem examination report (Ext. A-10). After autopsy he opined that the deceased had died due to Asphyxia because of strangulation. He also found ante mortem injuries on the dead body. The Investigation Officer after interrogating the witnesses arrested the accused. He recovered Sickle (Ext. 2) on the pointing out of the accused regarding which a memorandum (Ext. A - 11) was prepared. The police also examined the torches of the witnesses with which they saw the incident and handed over the torches back to them and made a memorandum thereof. On completion of investigation charge sheet (Ext. A-15) was filed by the Investigating Officer against accused / appellant Gajoo and Rampal (died during the trial). 4) The Magistrate, it appears on receipt of 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. After hearing the parties, learned Sessions Judge, on 02.02.1988, framed charge of offence punishable under Section 302 of I.P.C. against accused / appellant Gajoo. A separate charge was framed against both Gajoo and Rampal relating to offence punishable under Section 302 read with Section 34 of I.P.C. Both the accused pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1 Bhadu Ram (complainant;) P.W. 2 Asha Ram (an eyewitness); P.W. 3 Kewal Ram (another eyewitness); P.W. 4 Guddu (minor son of the deceased); P.W. 5 Gudru (a witness of recovery of Sickle on the pointing out of the accused) and P.W. 6 Braham Singh (Investigating Officer). The genuineness of the postmortem examination report was admitted by the defence counsel and formal proof was dispensed with. The entire oral and documentary evidence was put to the accused under Section 313 of Cr.P.C., in reply to which they replied that the evidence adduced against them was false. However, no evidence in defence was adduced on behalf of the accused. After hearing the parties, the trial court found accused Gajoo guilty of charge of offence punishable under Section 302. (Co-accused Rampal is reported to have died during the trial, and as such, case as against him stood abated during the trial). After hearing the parties on sentence, learned trial court sentenced Gajoo to undergo imprisonment for life. Aggrieved by said judgment and order dated 02.07.1990, passed by the learned Sessions Judge, Dehradun, in Sessions Trial No. 152 of 1987, this appeal was filed by the convict before the Allahabad High Court on 08.04.1991, where it was admitted after condoning the delay in filing the appeal. The appeal is received by transfer to this Court under Section 35 of the U.P. Re-organization Act, 2000, for its disposal. 5) Before further discussion, it is pertinent to mention here the ante mortem injuries found on the body of the deceased Tara Devi at the time of postmortem examination, which are recorded by Dr. U.K. Chopra, who conducted the postmortem examination and prepared the autopsy report (Ext. A -10) on 03.07.1987, at 02:15 P.M. The same are being reproduced below: - i) “Incised wound 4 cm X ½ cm muscle deep, 1 cm below the chin.. ii) Incised wound 5 cm X 1 cm muscle deep, 2 cm below injury No. (i). iii) Three abraded contusions in the middle of the neck, sizes 1.5 cm X 1 cm; 2 cm X 1 cm; 1.5 cm X 1 cm. iv) Abrasion 3 cm X 2 cm on the back of left elbow. v) Abrasion 3 cm X 2 cm on the back of the shoulder. vi) Abrasion 4 cm X 3 cm on the back of right lumber region.” On internal examination, under injury No (iii) sub cutaneous tissue in the middle of the neck found congested. Hyoid bone found fractured. The larynx and trachea were found congested. Both the lungs were found congested. Esophagus was found congested. The Medical Officer Dr. U.K. Chopta has given the opinion in his autopsy report (Ext. A -10) that Tara Devi has died due to Asphyxia because of strangulation. 6) P.W. 1 Bhadu Ram, complainant and brother of the deceased, has stated on oath that on 02.07.1987, he was informed by Guddu (minor son of the deceased) about the incident that his mother has been killed. This witness has further stated that Gajoo had a land dispute with Tara Devi. It is pertinent to mention here that Tara Devi and her son Guddu used to live in Village Kotda Kalyanpur, while complainant Bhadu Ram (material uncle of Guddu) used to live in Village Kotda Nahar. This witness has proved that he got scribed the first information report (Ext. A -1) through one Sadhu Ram Sharma and got it lodged with police station Sahaspur (District Dehradun). In cross- examination this witness has stated that accused Gajoo and deceased Tara Devi used to live separately for last eight years. He further stated in his cross-examination that the land was partitioned in three shares between Tara Devi, Rampal and Gajoo. But, Gajoo started ploughing the land of share of Tara Devi, and on this the two started having quarrel over the said issue. The distance between the village of Tara Devi and that of P.W. 1 Bhadu Ram is one kilometer, as disclosed by this witness in his cross examination. 7) P.W. 4 Guddu, a minor son of the deceased, has corroborated the fact that on the day of incident he had gone to the house of Chetu Ram and when he came back to his house in the night he saw his mother lying dead. The witness further states that he informed about the incident in the morning to his maternal uncle. Lastly, P.W. 4 Guddu states that his uncle Gajoo (appellant) had a dispute over land with his mother. 8) P.W. 2 Asha Ram and P.W. 3 Kewal Ram are the two eyewitnesses, who have narrated the prosecution story. According to these witnesses on 01.07.1987, they had gone to listen ‘SATYANARAIN KATHA’ to the house of Chetu Ram. Many other people were also gathered there. At about 01:00 A.M. (in the intervening night of 1st and 2nd of July 1987) the two came back together from the house of Chetu Ram and they heard cries coming from the house of Tara Devi. They lit the torches possessed by them and saw that accused Gajoo and Rampal were throttling Tara Devi. The two witnesses have further stated that Gajoo was having ‘DARANTI’ (Sickle) in his hand. When these witnesses tried to intervene the accused threatened them of dire consequences and they left. Both the witnesses have stated that due to fear they did not disclose about the incident to anyone. Both the witnesses have proved that the Investigating Officer had examined the torches in the light of which they had seen the incident and which was returned by him to them. They also proved the memorandum (prepared by police) Ext. A -1 and Ext. A – 2, on the record. From the cross examination of P.W. 2 Asha Ram it appears that both these witnesses are related to accused Gajoo as well as the deceased. 9) P.W. 5 Gudru son of Heera Singh has proved that Sickle (Ext. 2) used in crime was recovered by the Investigating Officer in his presence and Ext. A -11 was prepared. 10) From the evidence of the above two eyewitnesses read with the medical report and the recovery of Sickle on pointing out of accused Gajoo, we agree with the trial court that the prosecution has successfully proved the charge that accused Gajoo committed murder of his sister-in-law Tara Devi (deceased). 11) On behalf of the appellant it is argued that appellant Gajoo was not well represented through a lawyer at the time of the arguments and the trial court had failed to provide him legal assistance under Section 304 of Cr.P.C. We have examined the lower court record. The accused/ appellant Gajoo had engaged Mr. Yashpal Singh Pundir, Advocate, who cross examined all the prosecution witnesses. However, at the time of arguments the accused Gajoo told the court that he would argue the case himself. In these circumstances, this Court does not find any error of law committed by the trial court. The order dated 27.06.1990 in the order sheet of the sessions trial, corroborates this fact. 12) The second argument advanced on behalf of the appellant is that P.W. 3 Kewal Ram belongs to a different village and his testimony cannot be relied as the incident had taken place in a village where he does not belong. The cross examination of P.W. 3 Kewal Ram shows that distance between his village and where in the house of Chetu Ram ‘SATYANARAIN KATHA’ was organized, is three kilometers. He has further stated that not only he but many others like one Tikam Singh of his village had also come to listen ‘SATYANARAIN KATHA’ in the house of Chetu Ram. Having gone through the evidence on record we are of the opinion that had there been only this eyewitness it could have been said that his testimony cannot be relied without corroboration, but there is testimony of P.W. 2 Asha Ram, who belongs to the same village to which deceased belonged and statement of P.W. 3 Kewal Ram can be read as a corroborative piece of evidence to what has been stated by P.W. 2 Asha Ram. 13) It is also contended on behalf of the appellant that P.W. 4 Guddu has nowhere stated in his examination that he saw the incident or disclosed names of Gajoo to his maternal uncle, as such, the naming of Gajoo in the first information report is not explained on the record. It is true that P.W. 4 Guddu, minor son of the deceased, had simply stated that when he came to his house from ‘SATYANARAIN KATHA’ he found his mother lying dead and told about the incident in the morning to his maternal uncle, who lives in nearby village. It appears quite possible that since Gajoo had dispute relating to land, with deceased Tara Devi, as such, his name was mentioned in the first information report lodged by P.W. 1 Bhadu Ram. P.W. 1 Bhadu Ram nowhere says that he had himself seen the incident, nor he had stated that Asha Ram or Kewal Ram has seen the incident. Even P.W. 4 Guddu, minor son of the deceased has come with the natural story and he has not mentioned that Asha Ram or Kewal Ram saw the incident. The two who saw the incident have narrated the commission of crime by the accused. The evidence against accused Gajoo is not only the eyewitness account given by P.W. 2 Asha Ram and P.W. 3 Kewal Ram, but also the recovery of the ‘DARANTI’ (Sickle) used in causing injuries at the time of incident to the deceased is proved from the statement of P.W. 5 Gudru. 14) For the reasons as discussed above, we agree with the view taken by the trial court that the prosecution has successfully proved charge of offence punishable under Section 302 of I.P.C. against accused / appellant Gajoo. We do not find any reason to interfere with the conviction and sentence recorded by the trial court. Therefore, the appeal is liable to be dismissed. The same is dismissed. Accused / appellant Gajoo is on bail. His bail is cancelled. The Registry is directed to send the lower court record back to the trial court concerned to ensure that the accused / appellant Gajoo is made to serve out the sentence awarded against him by said court. (Dharam Veer, J.) (Prafulla C. Pant, J.) Dt. April 07, 2008 H. Negi