HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Jail Appeal No. 173 of 2005 Khimanand Giri S/o Moti Giri, R/o Village Lakhnari, Police Station- Someshwar, District Almora. ……..Appellant. (In Jail) Versus State of Uttaranchal, (Now State of Uttarakhand). …….Respondent Mr. Pankaj Purohit, Advocate/Amicus-curiae present for the appellant. Mr. M.A. Khan, Brief Holder present for the State/respondent. Dated: April 1, 2011 Coram: Hon’ble Prafulla C. Pant, J. Hon’ble V.K. Bist, J. Prafulla C. Pant, J. (Oral) This appeal, preferred under Section 374 of the Code of Criminal Procedure, 1973 (for brevity Cr.P.C.) (got sent through Superintendent, District Jail, Almora), is directed against the judgment and order dated 28.05.2005 passed by Sessions Judge, Almora in Sessions Trial No. 10 of 2004 whereby said Court has convicted the accused/appellant Khimanand Giri under Section 302 of the Indian Penal Code, 1860 (for short I.P.C.) and sentenced him to imprisonment for life. 2. Heard learned counsel for the parties and perused the Lower Court’s Record. 3. Prosecution story, in brief, is that Basanti Devi (deceased) was sister-in-law (BHABHI) of the accused 2 Khimanand Giri. The two used to live separately in two portions of same house in village Lakhnari, within the limits of Police Station Someshwar, District Almora. PW- 2 Jagdish Giri was son of the deceased, who was a school going boy. Accused/appellant Khimanand Giri used to ask his nephew Jagdish Giri (PW-2) to bring CHARAS for him, regarding which the boy complained to his mother Basanti Devi, in turn, Basanti Devi protested to the accused. On this, on 28.11.2003 at about 7:30 a.m., accused/appellant Khimanand Giri came out with a BASULA (carpenter’s axe) and gave blows on the head of Basanti Devi, who got injured and fell down. She was taken by the villagers to Primary Health Centre, Someshwar and thereafter to Base Hospital, Almora and later succumbed to the injuries. The deceased was widowed lady. PW-1 Nandan Giri, Village Pradhan of Lakhnari, gave written report (Ext.A-1) at Police Station Someshwar on the very day (28.11.2003) at about 11:40 a.m. On the basis of said report, crime no. 197 of 2003 was registered against accused Khimanand Giri, initially under Section 308 I.P.C., which was converted into one punishable under Section 302 I.P.C., after the death of the deceased on the very day. PW-5 Sub Inspector Km. Lata Joshi went to the District Hospital, Almora on 28.11.2003 and took the dead body of Basanti Devi in her possession and prepared Inquest Report (Ext. A-3) on the very day (28.11.2003) at 12:40 p.m. The dead body was sent for post mortem examination in a sealed condition, alongwith, inquest report and other necessary papers e.g. Sketch of the dead body (Ext. A-4), Police Form No. 13 (Ext.A-5), Sample Seal (Ext.A-6) and letter to the Chief Medical Officer (Ext.A-7). PW-3 Dr. T.D. Rekholia, Medical Officer conducted post mortem examination on 3 the dead body of Smt. Basanti Devi on the next day i.e. on 29.11.2003 and prepared Autopsy Report (Ext.A-2). He recorded the ante mortem injuries and opined that deceased had died due to head injuries and shock leading to cardio respiratory failure. PW-6 Sub Inspector Ramesh Chandra Dhaudiyal investigated the crime, who during investigation, interrogated the witnesses, inspected the spot and submitted the Charge sheet (Ext.A-11) against the accused/appellant Khimanand for his trial in respect of offence punishable under Section 304 I.P.C. 4. The Magistrate, on receipt of the charge sheet, after giving necessary copies to the accused, as required under Section 207 of Cr.P.C., appears to have committed the case to the Court of Sessions for trial. Learned Sessions Judge, Almora on 17.03.2004, after hearing the parties, framed charge of offence punishable under Section 302 I.P.C. against the accused Khimanand Giri, who pleaded not guilty and claimed to be tried. On this, prosecution got examined PW-1 Nandan Giri (informant), PW-2 Jagdish Giri (son of the deceased and eyewitness), PW-3 Dr. T.D. Rekholia, who conducted post mortem examination, PW-4 Heera Giri (another eyewitness), PW- 5 Sub Inspector Lata Joshi, who prepared inquest report and PW-6 Sub Inspector Ramesh Chandra Dhaudiyal, who investigated the crime. Oral and documentary evidence was put to the accused under Section 313 Cr.P.C., in reply to which he alleged that the evidence adduced by the prosecution is false and pleaded that he has been falsely implicated due to enmity. However, no evidence, in defence, was adduced. After hearing the parties, the trial Court found accused/appellant Khimanand Giri guilty of charge of offence punishable 4 under Section 302 I.P.C. After hearing on sentence, the trial Court sentenced the convict to undergo imprisonment for life. Aggrieved by the said judgment and order dated 28.05.2005, passed by Sessions Judge, Almora, in Sessions Trial No. 10 of 2004, this appeal is preferred by the convict, which he got sent through Superintendent, District Jail, Almora. 5. Before further discussion, we think it just and proper to mention the ante mortem injuries found on the body of Basanti Devi by PW-3 Dr. T.D. Rekholia at the time of post mortem examination. The said witness has stated, on oath, that on 29.11.2003 he found following injuries on the external examination of the dead body which are numbered as 5 and 6 in the autopsy report (Ext.A-2):- -“There is lacerated wound in left side of the forehead measuring 6cm. x 2cm. with fractured underlying bone and swollen, clotted blood is present around the wound on all over the face involving hair of the head and scalp. -Multiple contusions bluish in colour present in right temporoparital and frontal part of scalp. Whole area is swollen.” 6. On internal examination, the Medical Officer has observed, on opening of the scalp, diffused subgaleal Haematoma involving the whole frontoparietal and middle part of the scalp. There was a linear fracture extending from right temporal region. He has further observed, on internal examination, that frontal bone has multiple fractures in the left anterior side with lacerations 5 overlying as mentioned. The Medical Officer, on internal examination, further observed in the autopsy report that there was huge right and left extradorsal clotted blood and defused subderal Hg occupying whole frontoparietal region of the brain. The left anterior part of the frontal lobe was lacerated and the brain matter was out in the extradorsal place. 7. PW-3 Dr. T.D. Rekholia opined that deceased has died of ante mortem head injuries and shock leading to cardio respiratory failure. From the statement of Medical Officer read with the autopsy report, it is established on record that the deceased had died homicidal death. Now we have to examine whether the accused/appellant Khimanand Giri has committed murder of Smt. Basanti Devi in the manner suggested by the prosecution. 8. PW-1 Nandan Giri is a formal witness, who was the village Pradhan. He has simply proved that he lodged the First Information Report (Ext.A-1) at Police Station Someshwar on 28.11.2003. This witness has stated that on that day at about 7:30 a.m. when he was at his house, Jagdish Giri (PW-2), a young son of Smt. Basanti Devi (deceased), came to him and told that his uncle Khimanand Giri (accused/appellant) has injured his mother and she had been taken to Primary Health Centre, Someshwar. This witness has also proved the fact that during investigation, on 02.12.2003 at about 11:00 a.m., on pointing out of the accused/appellant Khimanand Giri, BASULA (carpenter’s axe), used in the crime, was recovered in his presence and memorandum of recovery was prepared. 6 9. PW-2 Jagdish Giri is son of the deceased and the eyewitness. He has stated that on the day of incident at about 7:30 a.m. his mother (Basanti Devi) was taking out the cattle from the GOTH (cowshed in the ground floor of the residential houses in the Hills). The witness further states that at that time accused Khimanand Giri, armed with a BASULA, came and gave blows with BASULA on the head of his mother and ran away. The witness further states that he reported the incident to Village Pradhan, soon after the incident and his mother was taken to Someshwar Hospital, who later died. As to the motive of commission of crime, PW-2 Jagdish Giri states that his uncle Khimanand Giri (accused/appellant) had asked him to bring CHARAS and regarding that fact he complained to his mother, who, in turn, protested to him. The statement of this witness is natural and trustworthy. He has been subjected to lengthy cross- examination, but nothing has come out in his statement, which creates doubt as to the truthfulness of the story narrated by him. 10. PW-4 Heera Giri, is another eyewitness, who has supported the prosecution story. He has stated that on 28.11.2003 at about 7:30 a.m. he was coming to his house, after leaving his cattle, and when he reached near the house of Basanti Devi, he saw accused Khimanand Giri quarreling with his sister-in-law (BHABHI) Basanti Devi and gave two blows with carpenter’s axe on her head. This witness also appears to be reliable, as he also belongs to the same village and his presence on the place of incident cannot be doubted. He too has underwent cross- examination, but there is nothing, which creates doubt in his testimony. 7 11. Having carefully gone through the statements of the two eyewitnesses, we concur with the view taken by the trial Court that the prosecution has successfully proved the charge of offence punishable under Section 302 I.P.C. against accused/appellant Khimanand Giri. 12. On behalf of the appellant, learned Amicus- curiae referred to the cases of Balkar Singh Vs. State of Uttarakhand 2009 (2) Supreme-826, and Pappu @ Hari Om Vs. State of Madhya Pradesh 2009 (4) Supreme-53 and it is argued that even if the eyewitnesses are believed, the act committed by the accused is covered under Section 304 I.P.C. i.e. culpable homicide not amounting to murder. We have gone through the case laws referred on behalf of the appellant and considered the argument. Had there been only one injury caused by the accused on the head of the deceased, we would have agreed that the act on the part of accused constituted offence culpable homicide not amounting to murder, but in the present case not less than two blows are given on the head of the deceased by the accused. Head is one of the vital parts of the body. Even a single blow of carpenter’s axe could have caused the death. After perusing the autopsy report (Ext.A-2), we do not find that the accused has restrained himself, after giving one blow on the person of Smt. Basanti Devi, rather injuries caused by the accused on the person of deceased are fully covered under Clause third of Section 300 I.P.C. Clause third of Section 300 I.P.C. provides that if the act is done with intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, such a culpable homicide would amount to murder. 8 13. For the reasons, as discussed above, we do not find any force in this appeal, which is liable to be dismissed. Accordingly, the appeal is dismissed. The accused/ appellant is in jail. Let a copy of this judgment be sent to the superintendent of the jail concerned. 14. Lower court record be sent back. (V.K. Bist, J.) (Prafulla C. Pant, J.) 01.04.2011 NCM: