IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 1644 of 2001 (Old No. 2113 of 1996) 1- Rameshwar Singh @ Rameshwar 2- Ram Singh 3- Surendra Singh ………. Appellants Versus State of Uttarakhand ……. Respondent Mr. Lokendra Dobhal, learned counsel for the appellants. Sri Nandan Arya, learned A.G.A. for the State. JUDGMENT Coram: Hon’ble J.S. Khehar, C.J. Hon’ble B.C. Kandpal, J. B.C. Kandpal, J. This appeal, under section 374 Cr.P.C., arises out against the judgment and order dated 11-10-1996, passed by Sessions Judge, Tehri Garhwal, in Sessions Trial No. 7 of 1990, State Vs. Rameshwar Singh and others, convicting all the accused/appellants Rameshwar Singh @ Rameshwar, Surendra Singh and Ram Singh under sections 457, 380 and 302/34 I.P.C. and sentencing each of them to undergo R.I. for two years and a fine of Rs. 1,500/- and in default of payment of fine further undergo R.I. for 6 months U/S 457 I.P.C.; R.I. for two years and a fine of Rs. 1,500/- and in default of payment of fine further undergo R.I. for 6 months U/S 380 I.P.C. and Life Imprisonment U/S 302/34 I.P.C. However, all the sentences were to run concurrently. 2- The prosecution case, in brief, is that accused Rameshwar Singh @ Rameshwar often used to visit the house of Rakshanand situated in village Amni, P.S. Deoprayag, District Tehri Garhwal. He was involved in unlawful trade and as such the deceased Rajendra Prasad had objected his visits in village Amni. Accused Rameshwar was annoyed with Rajendra 2 Prasad and he abused him and threatened to kill him, in the presence of Km. Asura, Smt. Surti and Dhirendra Prasad. The further case of the prosecution is that on 21-01-1990 at about 8- 8.30 P.M. the deceased Rajendra Prasad went to his shop to sleep after taking his meal. Km. Asura, Dhirendra Prasad and Sada Singh saw the accused Rameshwar along with two other persons in the Maruti Van, bearing registration No. UMT 8062 in that area on 21.01.1990. This Maruti Car was coming from the side of Deoprayag and was going towards Hindolakhal. The deceased Rajendra Prasad was carrying on the shop of Provision Store, including clothes, oil etc. In the night intervening 21/22-01-1990, the accused committed house breaking by night, by unlocking the shop of Rajendra Prasad, in order to commit theft, and they committed the theft of 2 thans of terry-cot, 4 chadars, one torch and Rs. 2,000/- in cash and also committed the murder of Rajendra Prasad Raturi by the assault with wheel-pana. The dead body of Rajendra Prasad was seen by Surendra Bhatt, downwards the rasta at a distance of 300 meters from the water source of village Amni in the morning of 22.01.1990. Surendra Datt Bhatt, who was Pradhan of Gaon Sabha Amni, District Tehri Garhwal, lodged the first information report (Ext. Ka.1) on 22.01.1990 at 9.35 A.M. at Police Station Deoprayag, which is at a distance of about 12 kilometers from village Amni, alleging therein that on 22.01.1990 at about 7.15 A.M. he was going to bus station Amni from his house and when he reached at a distance of about 300 meters from the water source of village Amni, he noticed blood-stains on the rasta and a little downwards from the rasta, he saw a dead body of a person. The face of the dead body was inside the bushes. He went towards the water source and informed Sita Ram, who was taking water from there. A child of informant Surendra Datt was also accompanying him and he called some persons from the village and when the informant along-with 4-5 other persons reached at the place known as Nol Gadhna, the dead body of Rajendra Prasad Raturi S/o Baisakhu Ram, resident of Amni, was recognized by them. 3 On the basis of written report, Ext. Ka.2, Head Moharir Jagdish Prasad prepared the chick report, Ext. Ka.8 and registered the case vide G.D. report, Ext. Ka.9, dated 22-01-1990 at 9.35 A.M. The investigation of the case was handed over to S.I. M.R. Dugtal. He went at the spot on 22.01.1990 and prepared the inquest report on the dead body, Ext. Ka.3. He also prepared the sample of seal, Ext. Ka.10, photo lash, Ext. Ka.11, letter to C.M.O. Ext. Ka.12, challan lash, Ext. Ka.13 and site plan Ext. Ka.14. The investigating officer also recorded the statement of Surendra Datt Bhatt on 22.01.1990. The dead body of the deceased Rajendra Prasad Raturi was handed over to constables Padam Kumar and Indrapal for post mortem examination. Km. Asura also handed over the list, Ext. Ka.4, of the stolen articles, to the I.O. The I.O. also went to the shop from where the articles were stolen and prepared the site plan, Ext. Ka.15. He also took the sample of blood-stained and simple earth in two containers, Exts. 14 and 15, from the spot. He also collected the one dabba of Ghora Mark Biri, Ext. 16, one match box, Ext. 17, one cap, Ext. 18, one pair of chappal, Ext. 19, from the spot and took them in police custody and prepared the memo, Ext. Ka.16. 3- Dr. N.K. Saxena, was posted as Medical Officer at Suman Hospital, Narendranagar, who conducted the post mortem on the dead body of the deceased on 23-01-1990 at 10.45 A.M., found the following ante mortem injuries on the dead body:- (1) Lacerated wound 5cm x ½ cm bone deep on front of forehead, 4cm above eye-brow. (2) Lacerated wound 3cm x ½ cm x muscle deep, on right side lower jaw, ½ cm below lower lip. (3) Incised wound ½ x ½ cm on right side face, 2 cm lateral to injury no.2. (4)Incised wound ½ x ½ x muscle deep on front of right fragus. 4 (5) Incised wound ½ x ½ cm muscle deep on right side face, 3cms below injury no.4. (6) Fracture of frontal bone. (7) Lacerated wound 3cm x ½ cm x bone deep, on right parietal bone. (8)Lacerated wound 10cm x 4cms x bone deep, on right parietal and occipital bone (9) Left ear outer part whole tear, lacerated wound which goes upto to bone-matter. On internal examination the Medical Officer found the fracture of parietal and frontal bones of skull. According to the doctor the cause of death was shock and haemorrhage, as a result of ante mortem injuries. The doctor also opined that the deceased died in the intervening night of 21/22-01-1990 at about 8-9 P.M. The doctor prepared post mortem report Ext. Ka.5. 4- The investigating officer recorded the statement of Smt. Surti on 24.01.1990. He also recorded the statement of Km. Asura on 25-01-1990. The further investigation of the case was conducted by Station Officer, Sri Vijai Kundalia. On 03.02.1990, he recorded the statement of Dhirendra Prasad, Madho Singh, Sada Singh. He arrested the accused persons on 11.02.1990 at Muni-ki-Reti and interrogated them. Accused Rameshwar Singh @ Rameshwar got discovered one open bushirt, one pant and one pants’ piece of terry-cot, which were allegedly stolen from the shop of deceased Rajendra Prasad. He also got discovered one blood-stained jersey from his khokha situated at Mussorrie taxi stand, Dehradun and prepared a recovery memo, Ext. Ka.17. Accused Surendra Singh also got discovered blood-stained shirt and pants, and stolen shirt, pants and 2 chadars from his house situated at Bharuwala, P.S. Clament Town, Dehradun and prepared a recovery memo, Ext. Ka.18. Accused Ram Singh also got discovered the stolen one pant, one shirt, two chadars, and one torch from his house situated at Bharuwala, P.S. Clament Town, Dehradun and a 5 recovery memo Ext. Ka.19 was prepared by the I.O. The accused Ram Singh further got discovered the Maruti Van No. UMT 8062 and wheel-pana, Ext.20, which were used by the accused in the commission of the crime, from the house of Anup Kumar Narula at Gandhi Road, Dehradun, on 11-02- 1990 and recovery memo Ext. Ka.1 was prepared. The I.O. also prepared the site-plans Ext. Ka.21 to Ka.24 of the houses of accused Surnedra Singh, Ram Singh, Rameshwar Singh and the house of Anup Kumar Narula. The I.O. further got discovered the key, Ext. 13, of the shop of the deceased at the pointing out of accused Rameshwar Singh, from near the road situated in village Gyuli, District Tehri Garhwal and a recovery memo Ext. Ka.5 was prepared and a site plan of this place, Ext. Ka.25, was also prepared. 5- The prosecution case further is that the stolen articles, terrycot than (Ext.1), 4 Chadars ( Exts. 2 to 5), one torch ( Ext.6), Pants (Ext.7), shirt ( Ext.8), Khaki pants ( Ext.9), Khaki shirt (Ext.10) and piece of Khaki than ( Ext.11), which were discovered at the pointing of accused persons, were put up for test identification on 31.03.1990. The Sub Divisional Magistrate, Kirtinagar conducted the test identification parade of the above articles and these articles were correctly identified by Km. Asura, daughter of the deceased and Km. Guddi and the identification memo, Ext. Ka.7 was prepared. After completion of investigation, the I.O. submitted the charge sheet, Ext. Ka.25, against the accused. 6- The case was committed to the court of Sessions by C.J.M., Tehri Garhwal, vide his order dated 28-05-1990. 7- The learned Sessions Judge, framed charges under sections 302/34, 457 and 380 I.P.C. against the accused persons, who pleaded not guilty and claimed to be tried. 6 8- The prosecution, in support of its case, examined as many as, 14 witnesses, namely, P.W.1, Anup Narula, P.W.2, Surendra Bhatt, P.W.3, Km. Asura, P.W.4, Smt. Surati, P.W.5, Dr. N.K. Saxena, P.W.6, Pancham Singh, P.W.7, Madho Singh, P.W.8, Bireshwar Singh, P.W.9, M.R. Dugtal, P.W.10, Surjit Singh, P.W. 11, Dhirendra Prasad, P.W.12, Ramesh Raturi, P.W.13, Sada Singh and P.W.14, Vijai Kundalia. 9- The accused persons in their statement under section 313 Cr.P.C. have denied the prosecution case and alleged that false case has been instituted against them. However, the accused did not adduce any evidence in their defence. 10- The learned Sessions Judge, after hearing learned counsel for the parties and perusing the entire evidence on record, found all the three accused Rameshwar Singh @ Rameshwar, Surendra Singh and Ram Singh guilty of offences under sections 457, 380 and 302/34 I.P.C. and sentenced each of them to under R.I. for two years and a fine of Rs. 1,500/- and in default of payment of fine further undergo R.I. for 6 months U/S 457 I.P.C.; R.I. for two years and a fine of Rs. 1,500/- and in default of payment of fine further undergo R.I. for 6 months U/S 380 I.P.C. and Life Imprisonment U/S 302/34 I.P.C. However, all the sentences were to run concurrently. 11- Feeling aggrieved, the accused/ appellants have preferred this appeal. 12- We have heard Mr. Lokendra Dobhal, learned counsel for the appellants and Sri Nandan Arya, learned A.G.A. for the State and perused the record. 13- There is no eye witness account in the instant case and the case is based on circumstantial evidence. 7 14- Learned counsel for the accused/appellants has argued that the prosecution has not been successful in proving all the circumstances and chain of circumstances has not been complete in the present case, hence the learned trial court has committed a manifest error in convicting the accused/appellants for the offences charged against them. He also submitted that the motive assigned to the accused/appellants is a weak type of motive and the same was not sufficient at the hands of accused to commit the grave offence of murder. 15- First of all we come to the point of motive. The motive assigned against accused Rameshwar Singh is that he used to visit the house of Rakshanand of village Amni. Accused Rameshwar was engaged in unlawful trade and deceased Rajendra Prasad objected his visits to the village Amni. The accused Rameshwar had threatened the deceased to kill him. P.W.3, Km. Asura, has deposed this fact that accused Rameshwar often used to visit village Amni and her father Rajendra Prasad objected to it. She also deposed that in her presence accused Rameshwar had threatened her father to see him in future. 16- P.W.4, Surti Devi is widow of deceased. She also deposed that 15-16 days earlier to the incident accused Rameshwar had come to their shop and in her presence he threatened the deceased as to why he objected his visits to village Amni and told her that he will kill her husband. P.W.11, Dhirendra Prasad, in his examination-in-chief has deposed that accused Rameshwar used to do unlawful trade and deceased Rajendra Prasad reprimanded him not to do unlawful trade in their village and due to this enmity the accused had committed the murder of Rajendra Prasad. Therefore, from the depositions of above witnesses it is quite clear that the accused Rameshwar Singh was having enmity with the deceased Rajendra Prasad and he had also threatened to kill him. The motive assigned to 8 the accused cannot be said to be a weak type of motive. As stated earlier the accused Rameshwar was indulged in unlawful trade and deceased Rajendra Prasad had objection to it and in order to remove his enemy he had strong motive to commit the murder of deceased Rajendra Prasad. 17- The second circumstance against the accused persons, is their presence, in the area of incident, on 21.01.1990 According to the prosecution case, on the date of incident accused Rameshwar Singh along with co-accused Ram Singh and Surendra Singh were seen in that area in Maruti Car UMT 8062. P.W.1 Anup Narula is the owner of Maruti Van UMT 8062. He has deposed that accused Ram Singh was driver of said Maruti Van. He has stated that accused Ram Singh was driver on the Maruti Van during the period 28.11.89 to 31.1.90. Accused Ram Singh had told him that on 21.1.1990 he had carried the vehicle to the hills and he has given him the fare. P.W.3, Km. Asura has stated that on 21.1.1990 at about 5-6 P.M. her father had sent her to the shop along with its key to bring sugar. When she came at the road after taking sugar from the shop she had seen Maruti Van bearing registration No. UMT 8062 which was going towards Hindolokhal from Deoprayag. Front mirror of the vehicle was closed and the rear mirror was opened. She had seen accused Rameshwar in that vehicle. P.W.11, Dhirendra Prasad also gave statement that on 21.1.1990 in the evening at about 6 P.M. he was going to his village from Bedakot and when he reached down to Gusain village he had seen Maruti Van UMT 8062. Accused Rameshwar met him there and two other persons were inside the vehicle. This witness also deposed that accused Rameshwar often used to come to the house Rakshanand in village Amni and he knew him from before. This witness had asked Rameshwar to come to home, but he told him that he has to go somewhere else. The presence of accused persons in the Maruti Van UMT 8062 on 21.1.1990 was further narrated by P.W.13, Sada Singh. This witness has deposed that he had gone 9 to flour mill to grind the wheat. At about 5 P.M. he was returning with flour and he had seen blue coloured vehicle. Three persons were sitting in that vehicle. He also boarded the said vehicle. They got down him at Aadi Shankar and they went towards the village. In view of the statements of above witnesses, this circumstance is amply proved that accused Ram Singh was the driver of Maruti Van UMT 8062 and on the day of incident i.e. 21-1-1990 in the evening the accused persons had come to the place of occurrence in that vehicle. 18- The next strong circumstance which connect the accused/appellants in the commission of crime is the recovery of stolen articles at the instance of accused/appellants. According to the prosecution, accused Rameshwar Singh got discovered one open bushirt, one pant and one pant’s piece of terrycot, which were allegedly stolen from the shop of the deceased Rajendra Prasad. He also got discovered one blood- stained jersey from his Khokha situated at Mussorrie taxi stand. The investigating officer has prepared recovery memo Ext. Ka.17 in respect of above recovered articles. P.W.14, Vijai Kundalia, investigating officer of the case, has got recovered the above articles at the pointing out of accused Rameshwar Singh. This witness has deposed that on 11.2.1990 he had arrested the accused persons, and thereafter on interrogation the accused has got recovered the above articles. He further deposed that on the same day, i.e. 11.2.1990, on the pointing out of accused Surendra Singh, blood-stained shirt and pants and stolen shirt, pants and 2 chadars, were recovered from the house of accused Surendra Singh situated at Bharuwala, P.S. Clament Town, Dehradun and prepared recovery memo, Ext. Ka.18. Accused Ram Singh also got recovered the stolen one pants, one shirt, 2 chadars, one torch from his house situated at Bharuwala, P.S. Clament Town, Dehradun and 11.2.1990. The investigating officer prepared recovery memo, Ext.Ka.19 in respect of the articles recovered at the pointing out of accused Ram Singh. Thereafter accused Ram Singh also got discovered 10 the Maruti Van No. UMT 8062 and wheel-pana (Ext.20) which was used by the accused in the commission of the crime, from near the house of Anup Kumar Narula at Gandhi Road, Dehradun on 11.2.1990 and prepared a recovery memo, Ext. Ka.1. The investigating officer also prepared the site-plans, Ext. Ka.21 to Ka.24 of the houses of accused, Surendra Singh, Ram Singh, Rameshwar Singh and the house of Anup Kumar Narula. The prosecution has produced Pancham Singh, P.W.6, as a witness of discovery, beside the investigating officer, P.W.14, Vijai Kundalia, but Pancham Singh has not supported the prosecution version and he was declared hostile. P.W.7, Madho Singh also did not support the prosecution case and he was declared hostile at the request of the prosecition. The stolen articles, terrycot than (Ext.1), 4 Chadars ( Exts. 2 to 5), one torch ( Ext.6), Pants (Ext.7), shirt ( Ext.8), Khaki pants ( Ext.9), Khaki shirt (Ext.10) and piece of Khaki than ( Ext.11), which were discovered at the pointing out of the accused persons, were also put to identification by P.W.8, Vireshwar Singh, Sub Divisional Magistrate, Kirtinagar. He held the identification of the aforesaid stolen articles from Km. Asura (P.W.3) and Km. Guddi and both these witnesses correctly identified the said articles. The Sub Divisional Magistrate also prepared identification memo Ext. Ka.7. 19- Learned counsel for the accused/appellants has submitted that while discovering the alleged stolen articles, confessional statements of the accused were not recorded. According to him the provisions are mandatory and must be strictly complied with. In support of his contention learned counsel has cited before us the case of, Lalli @ Jagdeep Singh versus State of Rajasthan reported in 2005 Supreme Court Cases (Cri) 822. 20- We have gone through the above ruling cited by the learned counsel for the appellants and find that the facts of the cited case are different from the instant case and the same is 11 not applicable in the instant case. In the cited case the Superintendent of Police, who recorded the confessional statement, neither recorded it in the confessional statement, nor deposed while appearing in court as a P.W. that it was explained to the accused that he was not bound to make the confession and the same may be read against him. In the instant case the investigating officer has made recovery memos in respect of the discovered articles. He has specifically mentioned therein that the accused persons voluntarily got discovered the stolen articles. Copies of the recovery memos were supplied to the accused persons. The discovery made in the instant case is proved against the accused/ appellants under section 27 of Evidence Act, and the discovery of the articles made at the instance of the accused persons can very well be read against them. Further, it has come in evidence of P.W.3, Km. Asura that she had handed over a list of stolen articles from the shop of her father to the police. The list was prepared by her, which is Ext. Ka.4. The items mentioned in the aforesaid list tally with the items discovered from the accused persons. As stated earlier, the discovered articles were also put for identification before Km. Asura and Guddi and both of them have correctly identified them. Sri Bireshwar Singh, Sub Division Magistrate, has been examined as P.W.8. He has deposed that on 31.3.1990 he was posted as S.D.M. Kirtinagar. He had held identification of stolen articles Ext. 1 to Ex.11 in his court room. He has deposed that Km. Asura and Km. Guddi were called for identification of the articles separately and both of them correctly identified the stolen articles Ext. 1 to Ex. 11. This witness has proved the identification memo Ext. Ka.7. In view of the aforesaid facts of the case, we are fully convinced that the stolen articles were discovered by the investigating officer at the instance of the accused persons and this circumstance connect the accused persons with the commission of crime. Accused persons had stolen the articles from the shop of the deceased Rajendra Prasad after house breaking by night. 12 21- Learned counsel for the accused/appellants also submitted that the alleged stolen articles were discovered from the Khokha of Rameshwar Singh, and from the houses of the accused Surendra Singh and Ram Singh and these places were easily accessible by others, therefore, the same can not be made as a basis of conviction. In support of his argument learned counsel has cited before us the ruling of Maruti Rama Naik vs State of Maharashtra, reported in 2004 Supreme Court Cases (Cri) 958. 22- We have considered the above submission of learned defence counsel and the ruling cited above in support of the argument, and we do not find any force in the above submission of learned counsel for the accused/appellants. The ruling (supra) is also of no help to the accused/appellants. The reason is that in the cited case the recovery was made from a place which was not in the exclusive possession of the appellants and the said place was easily accessible by other people. In the case in hand, the recovery of the stolen articles was made from the places which were in exclusive possession of the accused/appellants and the places were not easily accessible by other people. The recovery at the instance of accused Rameshwar Singh was made from his Khokha situated at Mussorrie Bus Stand and from other two accused persons was made from their houses. 23- Further case of the prosecution is that the weapon of assault was also discovered at the instance of accused Ram Singh, who was the driver of Maruti Van UMT 8062. The investigating officer prepared the recovery memo Ext. Ka.1. The Maruti Van UMT 8062 was taken into police custody on 11.2.90 from near the house of Anup Narula, P.W.1. P.W.10, Surjit Singh, is the witness of discovery of the weapon of assault. This witness has deposed that on 11.2.1990 at about 4.30 P.M. he was at his home. Narula Ji came to him and told that murder has been committed in his vehicle. He requested 13 him to accompany him to go to Dalanwala. They went to Narula Cycle Works near Dalanwala, Dehradun. There UMT 8062 Maruti Van was standing, driver of which was Ram Singh. He further deposed that Daroga Ji asked Ram Singh, how they committed the murder of Post Master and which weapon they used in it. At this accused Ram Singh himself brought out the wheel-pana from beneath the seat of the Maruti Van and gave it to the Daroga Ji. This witness further deposed that the wheel-pana was sealed by Daroga Ji in his presence. This witness has proved the recovery memo, Ext. Ka.1. 24- The above evidence pertaining to discovery of weapon used in commission of murder of Rajendra Prasad also finds support and