IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 949 of 2001 (Old No. 1120 of 1994) Chintamani S/o Shri Ram Kishore R/o Village Kimani Patwari Circle Deorada Tehsil Tharali, District Chamoli. ……Appellant. Versus State .……….Respondent. Shri Lokendra Dobhal, Advocate for the appellant. Shri Amit Bhatt, A.G.A. for the State. Coram:Hon’ble Prafulla C. Pant, J. Hon’ble B.S. Verma, J. Oral:-Hon’ble Prafulla C. Pant, J. This appeal, preferred under Section 374 of Code of Criminal Procedure, 1974 (herein after referred as Cr.P.C.), is directed against the judgment and order dated 18.07.1994, passed by learned Sessions Judge, Chamoli, in Sessions Trial No. 4 of 1992, whereby accused/appellant Chintamani, has been convicted under Section 302 and 201 of Indian Penal Code, 1860 (herein after referred as I.P.C.). He is sentenced to undergo imprisonment for life under Section 302/34 I.P.C. and no separate punishment is awarded under Section 201 I.P.C. 2. Heard learned counsel for the parties and perused the lower court record. 2 3. Prosecution story in brief is that Bhawan Singh (deceased) was husband of complainant Smt. Kamla Devi (P.W. 1). He (deceased) had undertaken some work of construction of contract in the house of one Hari Ram. One Man Bahadur (a Nepali citizen) used to help in his work. Everyday, the deceased used to come back to his house in Village Kimani, Patwari area Deorada, Tehsil Tharali, District Chamoli. On 16.08.1991, he neither came for lunch nor did he return in the night. At about 10:00 p.m., Man Bahadur, a helper of the deceased came and told complainant that a quarrel is going on between Bhawan Singh (deceased) and Chintamani (accused). On this, Kamla Devi (complainant) after lighting cheela (dried peel of pines, which is generally used by the villagers as a source of light where there is no electricity or kerosene available), along with Man Bahadur, proceeded in search of the deceased. However, on the way, it started raining and cheela got extinguished. The two lost their way and got separated. Due to darkness, it was difficult to search. In the circumstances, P.W. 1 Kamla Devi returned back to her house and could not sleep. On the next day i.e. 17.08.1991, again complainant went towards gorge where the quarrel was said to had taken place. When she was going there, she heard talking one Jai Dutt and Man Mohan, on the way that there had been quarrel between the complainant’s husband and Chintamani on the previous day. When the complainant could not find her husband in the gorge, she went to Harisha Devi (wife of appellant- 3 Chintamani) and inquired about her husband but to no avail. On this, she went to village of her parents and informed her father that her husband is missing. Thereafter, father of complainant joined her in searching her husband. On 20.08.1991, Bakhtawar Singh (P.W. 2), father of complainant, gave a report to Patwari Deorada, regarding the fact that deceased Bhawan Singh is not traceable. Meanwhile when search was going on, complainant and her father saw some suspicious circumstances on the field of Chintamani where newly 36 plants of paddy were implanted by digging the field and flies were swarming there. They immediately informed the Patwari, and a report was lodged by the complainant against the accused- Chintamani, her wife Harisha Devi and Girish Chandra relating to offences punishable under Sections 302, 201 I.P.C. (In the interior hills of Uttarakhand revenue officials are given police powers under U.P. Government Notification No. 494/VIII-418-16, dated 07.03.1916). The Patwari recorded her oral report as First Information Report (Ext. A-1). The Patwari in the presence of Bakhtawar Singh (P.W. 2), Soban Singh and others dug out field of Chintamani and recovered the dead body of Bhawan Singh, which was kept in a ‘Hold-all’. The Patwari after taking dead body into possession prepared inquest report (Ext. A-10), sketch of the dead body (Ext. A-11), letter to Chief Medical Officer (Ext. A-12), and other necessary papers and sent the dead body of Bhawan Singh for post mortem examination. Meanwhile, he interrogated the 4 witnesses. P.W. 4 Dr. Vinod Kumar Dhaundiyal, Medical Officer of District Gopeshwar, conducted post mortem examination on 22.08.1991, and recorded the ante mortem injuries. He prepared autopsy report (Ext. A-5) and opined that cause of death of the deceased was shock and haemorrhage as a result of ante mortem injuries. During investigation, P.W. 5 Govind Prasad Arya, Patwari (Investigating Officer) recovered blood stained clothes and KHUKRI (sharp edged weapon, used in the crime) from the house of accused Chintamani on September 16, 1991, and prepared a report (Ext. A-4). The blood stained articles (blood stained pants, blood stained underwear and KHUKRI) were sent for chemical examination, where it was found that the same contained human blood. After completing the investigation, the Investigating Officer submitted charge sheet (Ext. A- 15) against accused Chintamani (present appellant), Girish Chandra and Smt. Harisha Devi, for their trial in respect of offences punishable under Sections 302, 201 and 120 B I.P.C. 4. The Magistrate, on receipt of charge sheet, after giving necessary copies to the accused, as required under Section 207 Cr.P.C. appears to have committed the case to the Court of Sessions for trial. Learned Sessions Judge, Chamoli, after hearing the parties on 29.03.1993, framed charge of offences punishable under Section 302 read with Section 34 I.P.C. and one punishable under Section 201 read with Section 34 I.P.C. against all the three accused- Chintamani 5 (present appellant), Girish Chandra and Harisha Devi. All the three pleaded not guilty and claimed to be tried. On this prosecution got examined, P.W. 1 Kamla Devi (complainant), P.W. 2 Bakhtawar Singh (father-in-law of the deceased), P.W. 3 Devi Prasad Raturi (Village Pradhan), P.W. 4 Dr. Vinod Kumar Dhaundiyal (who conducted post mortem examination) and P.W. 5 Govind Prasad Arya, Patwari (Investigating Officer). The oral and documentary evidence, and material exhibits were put to the accused under Section 313 Cr.P.C. in reply to which they alleged the same to be false. However, no evidence in defence, was adduced. The trial court after hearing the parties found accused/appellant Chintamani, guilty of charge of offence punishable under Section 302/34 and 201 I.P.C. The other two accused were acquitted of the charge framed against them. After hearing on sentence, convict Chintamani, was sentenced to imprisonment for life. No separate punishment was awarded under Section 201 I.P.C. Aggrieved by said judgment and order dated 18.07.1994, passed by Sessions Judge, Chamoli, in Sessions Trial No. 4 of 1992, this appeal was filed before Allahabad High Court on 22.07.1994, where it was admitted on 25.07.1994. The appeal is received by this Court under Section 35 of U.P. Reorganisation Act, 2000 (Central Act No. 29 of 2000), for its disposal. 5. Before further discussions, we think it just and proper to mention here the ante mortem injuries, 6 recorded by P.W. 4 Dr. Vinod Kumar Dhaundiyal, in the autopsy report (Ext. A-5), after post mortem examination:- 1. In left upper limb there was no flesh at all. Only bones humerus, medius visible. 2. On left side of neck, there was no flesh. Bones were visible. 3. Left side of face-all muscles were lacerated. 4. Left side of chest, there was no flesh and bones visible. According to the Medical Officer, at the time of post mortem examination, the dead body was in a decomposed condition and about one week old. On internal examination, the Medical Officer found punctured ribs No. 3,4,5,6,7 and 8 on the left side. There was laceration under fracture in pleura and left lung. P.W. 4 Dr. Vinod Kumar Dhaundiyal, opined in his report (Ext. A-5) that cause of death of the deceased was due to shock and haemorrhage, as a result of ante mortem injuries. From the evidence adduced by P.W. 4 Dr. Vinod Kumar Dhaundiyal, read with the autopsy report (Ext. A-5) it is established on record that Bhawan Singh died homicidal death. 6. Now, this Court has to see if the prosecution has successfully proved that Bhawan Singh was murdered by accused Chintamani and his dead body was 7 concealed by him, as found by the trial court. It is pertinent to mention here that it is a case of circumstantial evidence. P.W. 1 Kamla Devi, widow of the deceased, has stated that her husband Bhawan Singh (deceased) had undertaken a work on contract in the house of Hari Ram. Everyday, he used to go there. According to this witness, on 16.08.1991, her husband neither came for lunch nor returned in the evening. She waited for her husband till 9:00 p.m. whereafter one Man Bahadur, a Nepali (a helper, who used to work with Bhawan Singh) came and told her that a quarrel was going on between Bhawan Singh and accused Chintamani, in a gorge of Village Kimani. On this, P.W. 1 Kamla Devi, lighted ‘CHEELA’ (dried peels of pines, used by the villagers for light where there is no electricity or kerosene) and gave it to Man Bahadur and she also took a torch with her. However, while the two were on their way towards gorge, it started raining and ‘CHEELA’ got extinguished and there was all darkness. Apart from this, Man Bahadur, got separated from the complainant and she came back to her house and could not sleep. The witness further narrates that on 17.08.1991, she again went in search of her husband towards gorge and heard one Jai Dutt saying to one Bisan Dutt and Madan Mohan that last night Chintamani and Bhawan Singh had a quarrel in Kimani gorge. On this, she (P.W. 1) went to the house of Chintamani and inquired about her husband. Harisha Devi (wife of accused Chintamani) told her that last night had she (Harisha Devi) not gone to 8 gorge for help of her husband, Bhawan Singh would have killed Chintamani. Since the witness could not trace her husband, on next day, she went to the village of her father Bakhtawar Singh and informed him that her husband is missing. Thereafter, she was joined in the search of her husband by her father Bakhtawar Singh (P.W. 2). On 20.08.1991, they noticed that some flies were swarming and some newly planted paddy in the field of Chintamani on which they got suspicious and a report (Ext. A-2) was given to Patwari. She proved First Information Report (Ext. A-1), recorded by Patwari on the basis of her statement. P.W. 1 Kamla Devi, has further stated that Patwari came to Chintamani’s field and dug out the dead body of Bhawan Singh. 7. P.W. 2 Bakhtawar Singh (father of the complainant) has corroborated the prosecution story, as narrated by her as to the fact that he was informed by his daughter regarding the fact that Bhawan Singh was missing where after he joined her in search of Bhawan Singh and that on 20.08.1991, after the report was made by him to Patwari, dead body of Bhawan Singh was got dug out by Patwari. This witness has further told that the dead body was kept in ‘Hold-all’ in the field. He has proved the recovery memo (Ext. A-2) of the dead body. 8. P.W. 3 Devi Prasad Raturi, is a Village Pradhan, who has proved that during investigation, in this case, Patwari recovered blood stained articles (pants-Ext. 1, 9 undershirt-Ext. 2, towel-Ext. 3, cover of mattresses – Ext. 4, bottle-Ext. 5) from the house of Chintamani. The testimony of aforesaid witnesses read with the statement of P.W. 5 Govind Prasad Arya (Investigating Officer) and the report of chemical examiner (Ext. A-16) proves following chain of circumstances against the accused Chintamani:- 1. P.W. 1 has proved on the record that on getting information that a quarrel was going on between her husband Bhawan Singh (deceased) and Chintamani (accused/appellant), on 16.08.1991, in the night, she went in search of her husband but could not found him as due to darkness of night and rain she had to come back. 2. P.W. 1 Kamla Devi has further proved that she continued to search for her husband on 17.08.1991, and also made inquiries from Chintamani’s wife Harisha, who told her that had she (Harisha) not intervened, the deceased would have killed Chintamani. 3. P.W. 1 Kamla Devi and P.W. 2 Bakhtawar Singh, have proved that when on 18.08.1991, Kamla Devi informed Bakhtawar Singh in his village that her husband is missing, he also joined her in search but on that day also the deceased could not be found. 4. The aforesaid two witnesses-P.W. 1 and P.W. 2 have further proved that on 20.08.1991, they noticed suspicious circumstances in the field of Chintamani, where some flies were swarming and 36 plants of paddy newly implanted. On 10 which they gave information to the Patwari of the area. 5. P.W. 5 Govind Prasad Arya, Patwari, has stated that on receiving information, he came to Chintamani’s field and got the field dug out and dead body was recovered from there, which was kept in a ‘Hold-all’. This fact, stated by P.W. 5 the Investigating Officer, is corroborated from the statement of P.W. 1 Kamla Devi and P.W. 2 Bakhtawar Singh. 6. P.W. 3 Devi Prasad Raturi, Village Pradhan and P.W. 5 Govind Prasad Arya (Patwari) have proved that blood stained clothes were recovered on 16.09.1991, from the house of Chintamani. 7. The Chemical Examiner’s report (Ext. A-16) shows that the blood stained articles, which were sent for chemical examination, were found containing human blood. 8. P.W. 5 Govind Prasad Arya (Patwari) has further proved recovery of KHUKHRI (Ext. 7, used in the crime) from the house of the accused and in respect of said article also, the Chemical Examiner’s report shows that it contained human blood. 9. The above chain of circumstances, brought on record, clearly establishes charge of offences punishable under Section 302 and 201 I.P.C. against accused/appellant Chintamani that he after committing murder of Bhawan Singh concealed his dead body in his field. Therefore, we concur with the finding of the 11 trial court that the prosecution has been successful in proving the charge against the accused Chintamani. 10. Learned counsel for the appellant argued that the First Information Report is highly belated and the accused/appellant has been implicated due to enmity. We have re-examined the evidence on record and found that whatever delay is there in lodging the First Information Report, the same is explained as complainant P.W. 1 Kamla Devi, widow of the deceased made all efforts to search her husband before making report to the Patwari. Since there is sufficient explanation for not lodging the First Information Report earlier, in our opinion delay in lodging the First Information Report is not fatal in the present case. 11. Secondly, it is contended on behalf of the appellant that Man Bahadur, a Nepali labour, who allegedly told Kamla Devi regarding quarrel of Chintamani with the deceased and Jai Dutt, who is said to have been talking to one Bishan Dutt and Man Mohan that there had been a quarrel between Chintamani and Bhawan Singh in the gorge, were not examined by the prosecution and as such, the statement of P.W. 1 Kamla Devi, should not be believed, as the same amounts to hearsay. On going through the evidence on record, we found that P.W. 5 Govind Prasad Arya (Investigating Officer) has stated that Man Bahadur, has gone to Nepal and is not traceable. As far as non examination of Jai Dutt is concerned, that he was not got examined by the 12 prosecution but merely for that reason, the clinching and solid evidence relating to the recovery of dead body from the Village of Chintamani and recovery of blood stained clothes from his house cannot be disbelieved. 12. Shri Lokendra Dobhal, learned counsel for the appellant, drew attention of this Court to the case of Hatti Singh Vs. State of Haryana (2008) 3 Supreme Court Cases (Cri) 246, and submitted that on the same evidence since other co-accused have been acquitted, as such, Chintamani (appellant) alone cannot be convicted. The facts of this case, in our opinion are different to the one referred on behalf of the appellant. We are of the view that the evidence adduced against the accused Chintamani is not identical to his wife Harisha Devi and his brother Girish Chandra. 13. For the reasons, as discussed above, we do not find any force in this appeal, which is liable to be dismissed. The appeal is dismissed. The appellant Chintamani is on bail. His bail is cancelled. Send the lower court record back to the trial court so that the appellant may be taken into custody to serve out the sentence awarded by the trial court. (B.S. Verma, J.) (Prafulla C. Pant, J.) Dt:01.04.2009 Sweta 13 14 15 16 17 18