IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Jail Appeal No. 15 of 2010 Ram Sewak Mahato S/o Amriwamjhar Shaan Tehsil – Mufsil District Paschimi Champaran, Betia-Bihar ……. Appellant Versus State of Uttarakhand …… Respondent Present : Ms. Vijay Laxmi Phartyal, Advocate (Amicus Curiae) present for the appellant. Sri B.S. Parihar, Brief holder present for the State/respondent. Hon’ble Prafulla C. Pant, J. Hon’ble Nirmal Yadav, J. (Oral : Prafulla C. Pant, J.) This appeal is received through Superintendent, District Jail, Dehradun. The appeal is directed against judgment and order dated 25.05.2009 passed by Sessions Judge, Pithoragarh, in Sessions trial No.23 of 2007, whereby the said court has convicted accused/appellant Ram Sewak Mahato under sections 302, 394 and 411 of Indian Penal Code, 1860 (for short IPC). He has been sentenced to imprisonment for life, and directed to pay fine of ` 5000/- under section 302 IPC, rigorous imprisonment for the period of ten years, and 2 directed to pay fine ` 5000/- under section 394 IPC, and rigorous imprisonment for the period of one year under section 411 IPC. 2. Heard learned Amicus Curiae for the appellant, learned counsel for the State and perused the lower court record. 3. Prosecution story, in brief is that on 12.04.2007 between 08.00a.m.– 09.00 a.m., Basanti Devi @ Devki Devi (deceased), a widowed lady, aged 65 years proceeded from village Algada, to draw her pension from State Bank of India branch, Devalthal. Her son PW-6 Naresh Chandra Bhatt also followed her after sometime. He (PW-6) directly went to the road and stopped near a bridge waiting for his mother. When she did not come for some time he went to shop of Harish Chand in village Bansdhar and enquired about her mother. Thereafter he went to State Bank of India Branch Devalthal. He came to know that his mother did not come there. He continued to make search for his mother. And on the next day 13.04.2007, dead body of Basanti Devi @ Devki Devi was found in a gorge. PW-6 Naresh Chandra Bhatt got scribed report (exhibit A-2) through PW-2 Chandra Shekhar and gave the same at police station Thal. On the basis of said report, crime No.47 of 2007 was registered at the police station relating to offence punishable under section 302 and 3 394 IPC. PW-9 Sub Inspector Vipin Chandra Sharma started the investigation. He inspected the spot, took dead body of Basanti Devi @ Devki Devi in his possession and prepared inquest report (exhibit A-12) on 13.04.2007 at about noon. He further prepared sketch of dead body (exhibit A-14), Police form No.13 (exhibit A-15) and letter to Chief Medical Officer (exhibit A-13), requesting for postmortem examination. PW-1 Dr. K.S. Mehta conducted postmortem examination on the dead body of Basanti Devi @ Devki Devi on 13.04.2007 at 03.30 p.m. He found as many as 09 ante mortem injuries on the dead body and prepared autopsy report (exhibit A-1). The medical officer opined that cause of death is asphyxia as a result of strangulation. During the investigation, after interrogation of the witnesses, accused Ram Sewak Mahato who used to work as carpenter in the village, was arrested. He disclosed that he can get recovered the looted articles (jewellery). On this, police accompanied with villagers was led by the accused to get recovered looted jewellery of the deceased on 14.04.2007 which included a gold necklace, two gold ear rings, five gold bangles. The police prepared recovery memo (exhibit- A-4) in the presence of the witnesses and accused, which was singed by them. Further investigation was taken up by PW-10 Sub Inspector Dalip Singh. During interrogation, accused was produced before the Magistrate for getting recorded his statement under 4 section 164 of Cr.P.C. PW-8 Sheesh Chand, Judicial Magistrate, Didihat (after giving necessary cautions to the accused) recorded his statement on 15.04.2007 under section 164 Cr.P.C. (exhibit A-10) in which the accused Ram Sewak Mahato confessed that he committed murder of Basanti Devi @ Devki Devi and looted her jewellery. After completion of investigation, chargesheet (exhibit A-22) was filed by Investigating Officer against accused Ram Sewak Mahato for his trial in respect of the offences punishable under section 302, 394 and 411 IPC. 4. The Magistrate on receipt of the chargesheet, 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. Learned Sessions Judge on 30.06.2007 after hearing the parties, framed the charge of offences punishable under sections 302, 394 and 411 IPC against accused Ram Sewak Mahato who pleaded not guilty and claimed to be tried. On this, prosecution got examined PW-1 Dr. K.S. Mehta who conducted postmortem examination, PW-2 Chandra Shekhar who scribed first information report, and also witnessed recovery of jewellery, PW-3 Deepak Joshi who saw Basanti Devi @ Devki Devi, being followed by accused Raw Sewak Mahato, PW-4 Neeraj Singh, PW-5 Basant Ballabh Bhatt (both witnesses who gave similar statements that they last saw deceased was 5 being followed by the accused), PW-6 Naresh Chandra Bhatt (complainant), PW-7 Head Constable Sada Ram who registered the crime at police station, PW-8 Sheesh Chand, Judicial Magistrate who recorded statement of accused Ram Sewak Mahato under section 164 of Cr.P.C., PW-9 Sub Inspector Vipin Chandra Sharma who started the investigation, and PW-10 Sub Inspector Dalip Singh who completed the investigation. 5. The oral and documentary evidence was put to the accused under section 313 of Cr.P.C. in reply to which he alleged that evidence adduced against him, is false. In defence DW-1 Pitamber Mahto, DW-2 Ram Sewak Mahto (accused himself after obtaining the permission under section 315 Cr.P.C.), and DW-3 Dhanesh Mahto were examined. The trial court after hearing the parties found that prosecution has successfully proved the charge of the offences punishable under sections 302, 394 and 411 IPC. He accordingly convicted the accused Ram Sewak Mahato. After hearing on sentence, sentenced the convict to imprisonment for life and directed to pay fine ` 5,000/- under section 302 IPC, rigorous imprisonment for the period of 10 years, and also directed to pay fine of ` 5,000/- under section 394 IPC, and rigorous imprisonment for a period of one year under section 411 IPC. Aggrieved by the said judgment and order dated 25.05.2009 passed by 6 Sessions Judge, Pithoragarh, this appeal was got sent by the convict through Superintendent, District Jail, Dehradun. The delay of 293 days in filing the appeal was condoned. The appeal was admitted. 6. Before further discussion, we think it just and proper to mention the ante mortem injuries found on the person of Basanti Devi @ Devki Devi at the time of postmortem examination conducted by PW-1 Dr. K.S. Mehta. The same are being reproduced from autopsy report (exhibit A-1) as under :- 1. Abraded contusion on the forehead size 2cm x 1.5cm. 2. Lacerated wound on the scalp above left ear size 1.5cm x 0.5cm. 3. Multiple abraded contusion on the right side on forehead size 5cm x 4cm. 4. Lacerated wound right side face near pinna 3.5cm x 2.5 cm muscle deep, vertical with the part of pinna, clotted blood present. 5. Ligature mark well recognizable around in an area of neck 18cm x 1cm. 6. Multiple abraded contusion on the right side of heap in an area of 6cm x 4.5cm. 7. Contusion left side on the waist oblique 6cm x 4cm bluish brown in colour. 8. Projection below right clavicle found to be stick round 1.5 ft from pelvic hickering 7 measuring lever diaphragm right lung to chest below the second rib. 9. Clotted blood present around dabrum majora found to be perforating wound likely to be made by wooden stick. The Medical Officer opined that cause of death of the deceased was asphyxia as a result of strangulation. 7. From the statement of PW-1 Dr. K.S. Mehta read with autopsy report (exhibit A-1) clearly establishes on the record that Basanti Devi @ Devki Devi (deceased) had died a homicidal death. Now this Court has to see whether the prosecution proved it on record that she was murdered by the accused Ram Sewak Mahato and it is further required to be seen further whether jewellery from the person of the deceased was looted by the said accused appellant and was it recovered from his possession ? 8. PW-2 Chandreshekhar has stated that he knew deceased Basanti Devi @ Devki Devi (deceased) and also Ram Sewak Mahato (accused/appellant). He has further stated that accused used to work as carpenter in the village. He further stated that on 12.04.2007 at about 08.00 a.m. Basanti Devi @ Devki Devi left the village and proceeded for State Bank of India, Thal, to draw her pension. Thereafter her son 8 Naresh Chandra Bhatt (PW-6) also followed him. He further states that on 13.04.2007 after he scribed first information report (exhibit A-2) on dictation of Naresh Chandra Bhatt, the police came to the village and took dead body of the deceased in their possession and prepared inquest report (exhibit A- 12). The witness has further stated that on 14.04.2007 accused Ram Sewak Mahato, during interrogation made discloser as to jewellery looted from the deceased, and it was recovered in the presence of the witnesses and recovery memo (exhibit A-4) was prepared. The witness also identified the recovered gold items in the court which were marked as exhibit 1,2, 3 & 4. 9. PW-3 Deepak Joshi has stated that on 12.04.2007, he saw that deceased Basanti Devi @ Devki Devi being followed by accused. Similar evidence was given by PW-4 Neeraj and PW-5 Basant Ballabh Bhatt that they saw that deceased being followed by the accused. 10. PW-6 Naresh Chandra Bhatt (complainant) has narrated the same story as stated by PW-2 Chandra Shekhar. 11. PW-7 Head Constable Sada Ram is formal witness who was proved that he registered offence on 9 the basis of first information report submitted by complainant at police station. 12. PW-8 Sheesh Chand, Judicial Magistrate has stated that on 15.04.2007 accused Ram Sewak Mahato was brought before him. He gave him caution that if he makes confessional statement, the same could be read against him. The witness further told that even after caution, the accused gave confessional statement (exhibit A-10) under section 164 Cr.P.C. which was signed by accused and Magistrate. 13. From the above discussion of the evidence, following circumstances are cleary established on record :- i. Basanti Devi @ Devki died a homicidal death, and was strangulated. ii. Jewellery from her person was found missing. iii. PW-3 Deepak Joshi, PW-4 Neeraj Singh and PW-5 Basant Ballabh Bhatt had seen the deceased being followed the accused on 12.04.2007, while she was on way to that, from village Algada to Devalthal. iv. The jewellery looted from the deceased was recovered on pointing out of the accused on 14.04.2007. 10 v. On 15.04.2007, accused Ram Sewak Mahato made confessional statement before Judicial Magistrate (PW-8) Sheesh Chand. From the above facts brought on record chain of the circumstances is complete establishing the fact that it was accused/appellant Ram Sewak Mahato alone who could have committed the murder of Basanti Devi @ Devki Devi and he looted her jewellery which was recovered from his possession on his pointing out. That being so, we concur with the view taking by the trial court that prosecution has successfully proved the charge of the offences punishable under section 302, 394 and 411 IPC. 14. Ms. Vijay Laxmi Phartyal, Amicus curiae on behalf of the accused appellant argued that all the witnesses of the fact belong to same village, and are related to each other. Having gone through the evidence of the witnesses of the fact, we are of the opinion that merely for the reason that all the witnesses belong to the same village and related to each other, their testimony can not be discarded particularly when their presence in the village where the incident has occurred, is natural. There is nothing on record to indicate that these witnesses had any enmity with the accused. As such we do not find any 11 reason to disbelieve the testimony of the witnesses of the fact. 15. It is also contended on behalf of the accused appellant that rope by which deceased was strangulated, was not recovered, as such, there is no link evidence as to the commission of crime by the accused. Though there is no recovery of any rope by which the deceased by strangulated, but considering the overall facts and circumstances of the case and otherwise reliable evidence on record, we do not find it a sufficient ground to disbelieve the prosecution story. 16. Lastly, it is submitted on behalf of the appellant that appellant was an illiterate, and it can not be said that he understood the caution given by the Magistrate before recording the statement under section 164 Cr.P.C. However, perusal of the record shows that the statement was recorded in Hindi by the Magistrate. The signatures made by the accused are in Hindi. In the circumstances, we do not see any reason to disbelieve the statement of the accused recorded under section 164 Cr.P.C. by the Magistrate. 17. For the reasons as discussed above, we do not find force in this appeal, which is liable to be dismissed. Accordingly, the appeal is dismissed. The conviction and sentence recorded by the trial court 12 against accused appellant Raw Sewak Mahato in respect of offences punishable under sections 302, 394 and 411 IPC, is affirmed. Let a copy of this judgment be sent to the Superintendent, District Jail concerned. Lower court record be sent back. (Nirmal Yadav, J.) (Prafulla C. Pant, J.) JKJ 24.09.2010