IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 271 of 2002 Ramesh Chandra Pant … Appellant Vs State of Uttaranchal … Respondent Sri R.P. Nautiyal, learned counsel for the appellant Sri S.S. Adhikari, learned A.G.A. for the State/respondent Coram: Hon’ble B.C. Kandpal,J. Hon’ble Nirmal Yadav, J. [(Judgment Per: B.C. Kandpal, J. (Oral)] This appeal, preferred u/s 374 of The Code of Criminal Procedure, 1973 (hereinafter referred to as the Cr.P.C.), is directed against the judgment and order dated 03.09.2002 passed by learned Sessions Judge, Bageshwar in Sessions Trial No. 2 of 2002 whereby the accused/appellant has been convicted u/s 302 of Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced to undergo imprisonment for life. 2. Prosecution story, in brief, is that the complainant – Kaustubanand Joshi R/o Village Lesani, Patwari Circle Banlekh, District Bageshwar moved an application on 15.12.2001 to Naib Tehsildar, Bageshwar alleging therein that his brother-in-law Ramesh Chandra Pant (appellant) murdered his sister Smt. Sobha Pant at about 09:00 a.m. in a room. It was further alleged that on receiving the information he went to the Patwari who was not available so the application was moved to the Naib Tehsildar, Bageshwar. The First Information Report (Ext. Ka. 1) was endorsed with the order to the Patwari, Banlekh for taking necessary action. Accordingly, the check F.I.R. (Ext. Ka. 6) 2 was written on 15.12.2001 at 04:00 p.m. and thereafter the case was registered against the accused – Ramesh Chandra Pant for the offence punishable under Section 302 of I.P.C. Sri Ramesh Ram – Patwari of that area inspected the spot and prepared the site plan (Ext. Ka. 12). The room of occurrence was got opened and the accused was arrested from that room. The arrest memo was prepared which is Ext. Ka. 11. The blood stained payjama was taken into possession and memo was prepared which is Ext. Ka. 17. The inquest report of the dead body of Smt. Sobha Pant (deceased) was prepared which is Ext. Ka. 7. The dead body was covered with cloth and was sealed. The dead body was found lying on a Dari, which was stained with blood and the same was taken into possession and memo (Ext. Ka. 4 and 10) was prepared. The blood stained cement piece and simple piece of cement was taken into possession from the room and memo was prepared (Ext. Ka. 5 and 9). An iron pipe stained with blood was also taken into possession from the spot and memo was prepared which was marked as Ext. Ka. 3 and 8. A letter to the Superintendent Community Health Centre, Bageshwar was written with the request for conducting the postmortem on the dead body of the deceased. Thereafter, dead body was sent to the postmortem and the papers challan lash (Ext. Ka. 13), photo lash (Ext. Ka. 14), sample of seal (Ext. Ka. 15) were prepared. Dr. Deepak Garbiyal conducted the postmortem of the body of the deceased on 16.12.2001 at 01:05 p.m. He recorded the ante mortem injuries and opined in the autopsy report that the deceased died due to shock & heamorrhage, as a result of ante mortem injuries. After completing of the investigation of the case, Ramesh Ram (P.W.6) submitted 3 the chargesheet (Ext. Ka. 18) before the court concerned against the accused/appellant. 3. The Magistrate, it appears on receipt of chargsheet after giving necessary copy to the accused, as required under Section 207 of Cr.P.C., committed the case to the court of Sessions, for trial vide order dated 22.01.2002. The learned Sessions Judge, after hearing the parties, framed charge of offence punishable under Section 302 of I.P.C. against the accused/appellant on 25.02.2002. The accused pleaded not guilty and claimed to be tried. 4. On this, prosecution got examined P.W. 1 Kaustuvanand – he is the brother of the deceased and who scribed the First Information Report; P.W. 2 Naveen Chandra Joshi – He is the eyewitness and nephew of the deceased – Sobha Devi; P.W. 3 Suresh Chandra – eyewitness; P.W.4 Dr. Deepak Garbiyal – Formal witness of postmortem; P.W.5 Shanker Dutt Joshi – eyewitness and P.W. 6 Ramesh Ram – Investigating Officer. 5. The oral and documentary evidence was put to the accused under Section 313 of Cr.P.C., in reply to which he told that the evidence adduced against him was false. However, he has produced Krishan Chandra Joshi for his defence. 6. After hearing learned counsel for the parties and perusing the entire material available before it, the learned Sessions Judge, Bageshwar found accused/appellant guilty of charge for the offence punishable under Section 302 of 4 I.P.C. vide judgment and order dated 03.09.2002 and sentenced them to undergo imprisonment for life. 7. Aggrieved by aforesaid judgment and order, passed by learned Sessions Judge, Bageshwar this appeal has been preferred by the accused/appellant. 8. Heard Sri R.P. Nautiyal, learned counsel for the appellant, Sri S.S. Adhikari, learned A.G.A. for the State/respondent and perused the record. 9. Before further discussion, it is pertinent to mention here the ante mortem injuries found on the body of the deceased – Smt. Sobha Pant at the time of the postmortem examination, which was recorded by Dr. Deepak Garbiyal (P.W.6), who conducted the postmortem examination and prepared the autopsy report. The ante mortem injuries are being reproduced below:- 1. Lacerated wound bone deep of 6 X 4 cm right parital region, vertically blood. 2. Vertical lacerated wound 3 X 1.5cm bone deep in the middle of the skull 1cm away from injury No. 1. 3. Multiple bruises of the size varying from 3cm to 1.5cm and 1cm to 1cm on both sides of the neck. 10. The doctor while internally examining the deceased opined that the right parietal bone was fractured underneath the injury No. 1 and the membrane was ruptured. The brain was found lacerated underneath injury No. 2 fractured bone pieces were found present in the brain 5 tissues. Clotted blood was also present over the surface of skull inside. The semi-digested food was about one cup present in the stomach gallbladder was half full. The cause of death was due to sock and haemmorhage due to result of antemortem injuries of skull. This witness also adduced that the death was possible on 15.12.2001 at 09:00 a.m. and the injuries of head were possible by striking of iron pipe having length of 2.5 feet. He has further adduced that the presence of semi digested food may not possible, if the food was taken before 5 hours of the death. Semi digested food might be present for 1 or 2 hours and thereafter it becomes digested food. The gallbladder starts to become empty after 10 or 15 minutes of taking foods and it remained full in the empty stomach. 11. Now, we come to the testimony of the prosecution witnesses. Kaustuvanand (P.W.1) has stated in his deposition that the deceased (Smt. Sobha Pant) was his sister and she was married with the accused/appellant – Ramesh Chandra Pant. There were cordial relations between his sister and brother-in-law. This witness has stated that on 07.12.2001, he went to Village Dwarahat for participating in the marriage ceremony of the sister of the accused – Ramesh Chandra Pant and he returned on 10.12.2001. He further stated that on 13.12.2001, he talked to his sister over phone and she told him that the accused – Ramesh Chandra Pant was not feeling well. His sister also told him that there is some godly effect on Ramesh Chandra and there was nobody to remove the effect of evil spirit. This witness requested his sister to come with the accused to his house for proper treatment. Accordingly, on 13.12.2001 accused – Ramesh Chandra, deceased – Smt. 6 Sobha Pant, Santosh Tiwari and Kishan Chandra Joshi came to his house. He called for the exorcist (Pujari) having knowledge about the existence of gods and ghosts who applied the process upon Ramesh Chandra (accused). On 14.12.2001, he went away on his duty at Balighat, where he received information from Shankar Dutt Joshi and Suresh Chandra Joshi at 11:30 a.m. that Ramesh Chandra Pant had killed his sister. It was also told by them that the the accused was inside the room and room was locked from inside. Thereafter, this witness written the report to the Naib Tehsildar and his statement was recorded by the Patwari. 12. Naveen Chandra Joshi (P.W.2) has stated in his deposition that the deceased – Sobha Devi was his aunt (Bua) and accused Ramesh Chandra is his Jija (elder sister’s husband). He has further deposed that on 13.12.2001, his aunt and Jija came to his house and the Jija was not looking normal. He has deposed that the conversation was continued for the arrangement of the family doctor and the physician came there on 14.12.2001 who applied the enchanted ashes on his Jija. On 15.12.2001 at about 09:00 a.m., his mother told him to call his Jija and aunt for taking food. He went to call them for taking food. His Jija opened the window and said that he had killed his aunt. This witness further deposed that he saw that his aunt was lying on the floor and the blood was oozing from her head. He shouted that his Jija killed his aunt and the villagers gathered there. 13. Likewise, Suresh Chandra (P.W.3) has deposed in his evidence that on the date of incident he came to the 7 shop of Shankar Dutt for purchasing some goods, suddenly, hearing the voice of Naveen Chandra Joshi that his aunt was killed by his Jija. He along with Shankar Dutt went to the place of occurrence and Naveen Chandra told the whole incident to them. This witness also adduced that the door was locked from inside and he requested the accused to open to door. The accused opened the door and he saw that the accused – Ramesh Chandra was having iron rod in his hand and Sobha Devi was lying on the floor of the room and blood was oozing from his head. He has further stated that the appellant threatened them to go away and he again shut the door from inside and thereafter, he locked the door from outside so that the accused may not ran away. He went to Balighat at the Patwari Chauki, but the Patwari was not present there, then, he along with Shankar Dutt went to Balighat and informed Kaustubanand about the occurrence. 14. Shankar Dutt Joshi (P.W.5) was also produced by the prosecution, who has stated that he had a control rate shop in the Village Lesani and he was present in his shop on the date of occurrence. This witness also narrated the whole story as described by the Suresh Chandra Joshi (P.W.3). 15. Ramesh Ram (P.W.6) is the Patwari of that area on the date of occurrence. He had written the check First Information Report and on the basis of written F.I.R., he recorded the statement of complainant – Kaustuvanand and inspected the spot with the necessary papers. On reaching at the spot, he saw the accused – Ramesh Chandra shut the room from inside and he arrested the accused and prepared the arrest memo, which is Ext. Ka. 9. After preparing the 8 necessary documentary papers, he submitted the chargesheet before the court concerned. 16. In order to support his case, the accused/appellant has produced Krishan Chandra Joshi (D.W.1), who is the Jawai (brother-in-law) of the accused/appellant. This witness has stated in his evidence that the accused was living in the village Dwarahat with his wife, mother and children. Ramesh Chandra had good behaviour with his wife and he never saw any conflict with each other. This witness has stated that he came to Dwarahat on 07.12.2001 on the occasion of the marriage of his sister-in-law, since, then the mental disturbance begun to happen with Ramesh Chandra and he began to make noise. The appellant also disappeared from the house on 12.12.2001 and telephonic massage of Kaustuvanand received on 13.12.2001 who suggested them to carry Ramesh Chandra for his treatment in his village. 17. Learned counsel for the appellant has argued that the accused/appellant – Ramesh Chandra was mentally not well. He has also submitted that the trial court has not considered the evidence of the witnesses, who have stated in their deposition that the accused/appellant was abnormal. He has further submitted that the prosecution has not successfully established the case, as the Investigating Officer has mentioned that the murder was committed by the accused due to illicit relations of his wife, but the prosecution could not establish the same by any witness. 18. We do not find any force in the arguments advanced by learned counsel for the appellant. As far as the 9 mental status of the accused/appellant is concerned, there is nothing on record, which indicates that the accused/appellant was mentally disturbed person during the period of occurrence. There is no doctor certificate, which may suggest that the accused/appellant was mentally retarded person at the time of occurrence. It is not disputed that the prosecution has not established the cause of murder properly, but the deposition of the witnesses clearly indicates that there is none except the accused/appellant who had committed murder of his wife. Naveen Chandra Joshi (P.W.2) adduced before the court by the prosecution, who has deposed that the accused – Ramesh Chandra and the deceased – Smt. Sobha Devi was alone in the room, when he called them for taking food. This witness has clearly stated in his deposition that the accused/appellant himself stated him from the window that he had killed his aunt. When he saw inside the room from the window, his aunt was lying on the floor and the blood was oozing from the head and his Jija was having iron rod in his hand. P.W.3 – Suresh Chandra also stated in his deposition that he locked the door from outside so that the accused may not ran away and thereafter, they went away from the place of occurrence in order to lodge the report of the incident. Further, Ramesh Ram (P.W.6) – Patwari of that area has stated in his deposition that he reached the spot and arrested the accused from the room. Taking into account the above evidence of the witnesses, it cannot be said that there is none except the accused/appellant had committed the crime. 19. Apart from this, the statement of Dr. Deepak Garbiyal (P.W.4) – who conducted the postmortem of the 10 dead body of the deceased is very important. He has stated that the injuries of head were possibly be done by striking of iron pipe having length of 2.5 feet and the recovery of iron rod (Ext. Ka.8) from the room is another important factor in this case, which corroborate the version of the doctor and possibility of involvement of the accused/appellant in the commission of crime. This evidence also indicates that the accused had committed the crime by the said iron rod, recovered from the place of occurrence. 20. Learned counsel for the appellant has further submitted that the relations between the deceased and the accused/appellant are very pleasant. He has submitted that there is no motive with the accused/appellant to commit the murder of his wife. He has also submitted that the court below did not consider this aspect and the prosecution could not establish this fact that there was some quarrel between them before the commission of murder. He has further submitted that there could be possibility of sudden quarrel between the husband and wife, therefore, the act done by him comes within the purview of Section 304- Part- II of I.P.C. 21. After hearing learned counsel for the appellant, we have gone through the record. It is beyond reasonable doubt that the prosecution has successfully proved that the accused/appellant – Ramesh Chandra assaulted his wife inside the room with an iron rod, which resulted death. Now, the question before us, whether the case falls within the purview of Section 302 of I.P.C. or not. It is also now to be seen as to whether the case of accused/appellant is covered by the provisions of Section 302 of I.P.C. or Section 11 304(1) or 304 (II) of I.P.C. The Hon’ble Apex Court in a decision Addha Vs State of M.P. reported in (2002) Supreme Court cases (Cri) 573 has held, as under:- “In view of the fact that the entire incident happened pursuant to a quarrel between two groups of people and that the appellant had no deliberate intention to cause death of Sher Singh, we do not think that an offence under Section 302 IPC had been made out against the appellant. The incident was the result of a sudden quarrel between the two groups and in that melee the appellant must have used a Lathi which caused injury to Sher Singh which ultimately resulted in his death. In that background it is difficult to hold that the appellant committed the offence of murder. The offence would only come under Section 304 Part II of the Indian Penal Code. Therefore, we acquit the appellant of the offence under Section 302 IPC and find him guilty of offence punishable under Section 304 Part-II of IPC.” 22. In another decision, the Hon’ble Apex Court in K. Ramakrishnan Unnithan Vs State of Kerala reported in 1999 Supreme Court cases (Cri) 410, has held, as under:- “The scenario in which the appellant has been stated by the eye witnesses to have given one blow on the deceased, it is difficult for us to hold that he gave the blow in question either with the intention of causing murder of the deceased or he can have said to have the requisite knowledge that the death would otherwise be the inevitable result. In such a situation, even on accepting the prosecution case we hold that the accused did not commit the offence under Section 302 but under part II of Section 12 304 IPC. We accordingly, set aside the conviction of the appellant under Section 302 IPC and instead, convict him under Section 304 Part II. The incident is of the year 1985 and more than 13 years have elapsed. The accused is on bail pursuant to the orders of this court dated 6th February, 1992. Mr. Lalit, appearing for the accused- appellant stated that he has already undergone sentence of about four years. In such circumstances, for his conviction under Section 304 Part II IPC , we sentence him to the period already undergone. His conviction under Section 324 IPC remains unaltered but no separate sentence is being awarded. This Criminal Appeal is disposed of accordingly. The bail bond furnished by the appellant stands discharged.” 23. Thus, in view of the above observations made by the Hon’ble Apex Court and considering the factual background of the instant case, we are of the considered view that the accused did not commit the offence under Section 302 of I.P.C. but instead committed the offence under Part-II of Section 304 of I.P.C. It is noteworthy to mention here that the prosecution has not come forward with a specific motive in this case rather it is a case of the prosecution that both husband and wife were living pleasantly and had no quarrel between them. All the witnesses produced by the prosecution have also stated that there was no quarrel between them at any point of time. However, in the instant case, this aspect cannot be ignored that when the deceased was assaulted, both husband and wife only were present inside the room, there was none else. Therefore, there was no possibility of being any other person involved in the commission of crime. The circumstance in this case points towards the guilt of the accused only and 13 none else. Considering the statements of the prosecution witnesses as well as defence witness, it is nowhere indicates that there was scuffle between the appellant and the deceased before the occurrence. It is noteworthy to mention here that there was no prosecution eyewitness; who had seen the accused/appellant to commit the murder of his wife. This court on re-appreciation of the evidence come to the conclusion that there could be possibility that the accused/appellant and the deceased had a sudden quarrel and in that melee, the appellant must have used the iron rod, which caused injury to Smt. Sobha Devi, which ultimately resulted in her death and his act comes within Part II of Section 304 of I.P.C. 24. For the reasons recorded above, the appeal is partly allowed. The impugned judgment and order dated 03.09.2002 convicting the accused/appellant under Section 302 of I.P.C. is set aside and modified to the extent that the conviction of the accused/appellant – Ramesh Chandra Pant under Section 302 of I.P.C. is altered to Section 304 Part II of I.P.C. and sentence of life imprisonment is reduced to the period of imprisonment, already undergone. The accused/appellant is in jail since 15.12.2001, therefore, he is sentenced to the period already undergone by him. Hence, the accused/appellant be released forthwith, if not wanted in any other case. (Nirmal Yadav, J.) (B.C. Kandpal, J.) April 1, 2010 ASWAL