IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 1733 of 2001 (Old No. 424 of 1994) 1. Matbar Singh S/o Sultan Singh R/o Village Chuli, Patti Dhaijulli, District Pauri Garhwal. 2. Mahendra Singh (since deceased) S/o Para Singh R/o Village Nisini, Patti Padiulsyun, District Pauri Garhwal. ...…………. Appellant Versus The State ...…………. Respondent Mr. Jitendra Chaudhary and Mr. Siddhartha Sah, Advocates for the appellant Matbar Singh. Mr. Amit Bhatt, Addl. Government Advocate for respondent-State. Coram : Hon’ble Prafulla C. Pant, J. Hon’ble B. S. Verma, J. Prafulla C. Pant, J. (Oral) This appeal, preferred under Section 374 of the Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), is directed against the judgment and order dated March 11, 1994, passed in Sessions trial No. 41 of 1989, by learned Sessions Judge, Pauri Garhwal, whereby accused / appellants Matbar Singh and Mahendra Singh have been convicted under Section 120-B, 302 read with Section 34 and under Section 394 2 read with Section 34 of the Indian Penal Code, 1860 (hereinafter referred as I.P.C.). Accused / appellant Mahendra Singh has further been convicted on the charge of the offence punishable under Section 411 of I.P.C. Each one of the convicts has been sentenced to undergo imprisonment for life under Section 302 / 34 of I.P.C. and rigorous imprisonment for a period of seven years under Section 394 read with Section 34 of I.P.C., and rigorous imprisonment for a period of two years under Section 120-B of I.P.C. Accused / appellant Mahendra Singh has been sentenced under Section 411 of I.P.C. for rigorous imprisonment for a period of three years. (However, during pendency of this appeal, appellant No. 2 Mahendra Singh has died, as such his appeal stands abated). It is a case of DOUBLE MURDER. 2) Heard learned counsel for the appellant Matbar Singh and learned Additional Government Advocate for the State and perused the lower court record. 3) Prosecution story, in brief, is that on 10.05.1989, P.W. 1 Dr. Syed Asraf Hussain Zaidi, a Lecturer in the Garhwal University, who was tenant in house known as ‘JYOTSANA BHAWAN’ in Pauri, lodged report (Ext. A –1) with police station Kotwali Pauri that in a room of ground floor of said building he has seen some red liquid like blood coming out of the room under tenancy of Shiv Charan Singh (one of the deceased), who was 3 Range Officer in the Forest Department. On said report it appears that P.W. 11 Inspector Mahak Singh (Investigating Officer) proceeded along with police force at 08:10 A.M., to the spot and in the presence of Sandeep Massey (P.W. 6), landlord of the house and other persons, opened the door of the ground floor of ‘JYOTSANA BHAWAN’, where he found two dead bodies lying in the pool of blood. One of the dead body was of Shiv Charan Singh, Range Officer and another was of Kailash Chand, an Orderly. The Station House Officer, Inspector Mahak Singh (P.W. 11) started investigation of the crime. He got prepared inquest report at about 11:00 A.M., of dead body of Kailash Chand and at 11:30 A.M., relating to that of Shiv Charan Singh. He further prepared the other necessary papers like sketch of the dead body, police form No. 13 and letters to the Chief Medical Officer, requesting for postmortem examination. The dead bodies were sent for postmortem examination. Dr. R.K. Saxena (P.W. 5) conducted the postmortem examination on the dead bodies of the deceased Kailash Chand and Shiv Charan Singh, and prepared autopsy reports Ext. A –3 and Ext. A –4, respectively. He found as many as 12 incised wounds (as ante mortem injuries) on the body of Kailash Chand and 20 incised wounds (as ante mortem injuries) on the dead body of Shiv Charan Singh. He opined that both the deceased have died as a result of shock and haemorrhage due to ante mortem injuries suffered by them. After interrogating the witnesses, 4 during investigation accused / appellant Matbar Singh who had worked for sometime earlier with deceased Shiv Charan Singh was arrested and on his pointing out the knife (Ext. 5) and one ‘GAMCHHA’ (a thin towel) used at the time of commission of crime was recovered on 23.05.1989, and a memorandum (Ext. A -5) was prepared. Also, a letter (Ext. 12), which is written by accused / appellant Matbar Singh to one Goodwin (absconder) from his house in which the accused / appellant had written to him to reach in the Range Office to settle scores with deceased Shiv Charan Singh. A memorandum (Ext. A –2) was prepared by the police in this connection. On interrogation of the accused and the witnesses, police arrested another co- accused Mahendra Singh and a watch (Ext. 1) belonging to deceased Shiv Charan Singh was recovered from his house. Meanwhile, police collected fingerprints and footprints from the spot. It also collected the blood stained soil and simple soil. After the arrest of accused Matbar Singh, the impressions of his shoes were got tallied with one collected from the spot. Also, blood stained clothes of the accused Matbar Singh and Mahendra Singh were sent for chemical examination. The chemical examiner vide his report dated 13.09.1989 (Ext. A –44) gave an opinion that the shirt, pant, shoes and handkerchief (collected from person of Matbar Singh) found to have contained blood. The GAMCHHA (Ext. 5) which was also sent along with the knife for chemical examination found to have 5 contained human blood of Group ‘B’ which was the blood group found on the blood stained clothes of deceased Shiv Charan Singh. The proceedings of identification of watch which was recovered from Mahendra Singh was conducted by P.W. 13 S.K. Singh, Sub Divisional Magistrate, which was identified by sons of the deceased Shiv Charan Singh, namely P.W. 2 Deepak Rawat and P.W. 8 Ranu Rawat. After completion of investigation, the police submitted charge sheet (Ext. A –43) against both the accused namely, Matbar Singh and Mahendra Singh, for their trial in respect of offences punishable under Section 302, 394, 412, 120-B of I.P.C. 4) The Magistrate, on receipt of 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. Name of accused Goodwin was shown as an absconder in the charge sheet. After hearing the parties, learned Sessions Judge, Pauri Garhwal, on 06.12.1989, framed charge of offences punishable under Section 120-B, 302 read with Section 34, Section 394 read with Section 34 and Section 412 read with Section 34 of I.P.C. against both the accused, to which they pleaded not guilty and claimed to be tried. On this, the prosecution got examined P.W. 1 Dr. Syed Asraf Hussain Zaidi (informant); P.W. 2 Deepak Rawat (son of deceased Shiv Charan Singh, who identified the watch of the 6 deceased); P.W. 3 Rajendra Singh Rawat (in whose presence a currency notes were recovered from the house of accused Mahendra Singh); P.W. 4. Vimal Bahuguna (in whose presence a letter written by accused Matbar Singh was recovered from the house of Goodwin); P.W. 5 Dr. R.K. Saxena (who conducted the postmortem examination on the dead bodies of Shiv Charan Singh and Kailash Chand); P.W. 6 Sandeep Massey (the landlord of the house JYOTSANA BHAWAN, in which the murders were committed); P.W. 7 Sub Inspector R.C. Sharma (who recovered the knife and GAMCHHA, on pointing out of accused Matbar Singh); P.W. 8 Ranu Rawat (another son of the deceased Shiv Charan Singh, who also identified the watch of the deceased); P.W. 9 Sub Inspector Birendra Pal Singh (who collected the fingerprints and foot- prints from the place of incident); P.W. 10 Constable Ram Bhool Singh (who deposited the impressions of the fingerprints taken from the spot in sealed condition at the police station); P.W. 11 Inspector Mehak Singh (who investigated the crime); P.W. 12 Sub Inspector I.D. Sharma (who prepared the memo (Ext. A –38) relating to recovery of letter written by Matbar Singh to accused Goodwin); P.W. 13 S.K. Singh (Sub Divisional Magistrate, who conducted the identification proceedings of the watch recovered from Mahendra Singh) and P.W. 14 Ayamuddin (declared hostile). The oral and documentary evidence was put to the accused / appellants under Section 313 of Cr.P.C., in reply to 7 which they alleged the same to be false. Accused / appellant Matbar Singh at the end of his replies stated that he was actually arrested on 10.05.1989 and forced to write letter (Ext. 12), by the police. On behalf of the defence D.W. 1 Paar Singh, father of accused Mahendra Singh and D.W. 2 Rajendra Singh were got examined. After hearing the parties, the trial court found both the accused / appellants, namely Matbar Singh and Mahendra Singh guilty of charge of offences punishable under Section 120-B, Section 302 read with Section 34 and Section 394 read with Section 34 of I.P.C. Accused Mahendra Singh was further found guilty of the charge of offence punishable under Section 411 of I.P.C. After hearing the parties on sentence, each one of the convicts is sentenced to undergo imprisonment for life under Section 302 read with Section 34 of I.P.C.; to rigorous imprisonment for a period of seven years under Section 394 read with Section 34 of I.P.C. and to rigorous imprisonment for a period of two years under Section 120-B of I.P.C. Accused Mahendra Singh was further sentenced to undergo rigorous imprisonment for a period of three years under Section 411 of I.P.C. Aggrieved by said judgment and order dated 11.03.1994, passed by learned Sessions Judge, Pauri Garhwal, in Sessions Trials No. 41 of 1989, this appeal was filed before the Allahabad High Court on behalf of the convicts on 18.03.1994, where it was admitted on 19.03.1994. The appeal is received by transfer to this Court under 8 Section 35 of the U.P. Re-organization Act, 2000 (Central Act No. 29 of 2000), for its disposal. 5) Before further discussion, we think it just and proper to mention here the ante mortem injuries found on the person of the deceased at the time of postmortem examination, which were recorded by P.W. 5 Dr. R.K. Saxena, on 11.05.1989. The autopsy report (Ext. A –3) which relates to the dead body of deceased Kailash Chand, discloses following ante mortem injuries, found by the Medical Officer, at the time of autopsy : - i) Incised wound (Two) 1.5 cm X 0.2 cm X ½ cm on the left side neck, 1 cm apart, 5 cm above left clavicular sterral joint (one above another). ii) Incised wound 3 cm X 1 cm X cavity deep, 7 cm from right nipple at 2 O’ clock position (chest). iii) Incised wound 3 cm X 1 cm X cavity deep, 3 cm from left nipple at 7 O’clock position (chest). iv) Incised wound 4 cm X 2 cm X muscle deep, 10 cm from the left nipple at 5 O’clock position (chest). v) Incised wound 3 cm X 1 cm X muscle deep, 12 cm from left nipple at 6 O’clock position (chest). vi) Incised wound left side chest 3 cm X 1 cm X cavity deep, 8 cm from the left nipple at 7 O’clock position. 9 vii) Incised wound 3 cm X 1 cm X cavity deep, 14 cm from umbilicus at 2 O’clock position. viii) Incised wound middle of abdomen 3 cm X 1.5 cm X cavity deep, 4 cm from umbilicus at 12 O’clock position. ix) Incised wound 2.5 cm X 1 cm X muscle deep on the back of left arm, 7 cm above the tip of the left elbow. x) Incised wound 4 cm X 2 cm X muscle deep on the outside back of left elbow, 3 cm outer to tip of left elbow. xi) Incised wound 4 cm X 2 cm X muscle deep, horizontal on left fore arm, 7 cm below the tip of the left elbow. xii) Incised wound 3 cm X 1 cm x muscle deep on the inner side of left fore arm, 7 cm below the tip of the left elbow. The cause of death, according to the Medical Officer, was shock and haemorrhage as a result of ante mortem injuries. The autopsy report (Ext. A –4) prepared by same Medical Officer P.W 5 Dr. R.K. Saxena on 11.05.2989, disclosed following ante mortem injures on the body of deceased Shiv Charan Singh: i) Incised wound horizontal 1 cm X 0.3 cm X muscle deep, on right side face, 1 cm outer to right eyebrow. 10 ii) Incised wound vertical 0.5 cm X 0.3 cm X muscle deep, on right side of face 0.5 cm below injury No. (i). iii) Incised wound 2 cm X 1 cm X bone deep, on right side of face, 4 cm from the outer angle of right eye, at 7 O’ clock position. iv) Incised wound 3 cm X 1 cm X bone deep on the right side face just below the angle of jaw. v) Incised wound 5 cm X 1 cm X muscle deep on right side face, 1 cm above the angle of jaw. vi) Incised wound 2.5 cm X 1 cm X muscle deep in middle front of neck. vii) Incised wound 3 cm X 0.5 cm X muscle deep right side neck, 10 cm below the right ear. viii) Two incised wound 1 cm X 0.2 cm X muscle deep, 0.7 cm apart on the front right side chest at the junction of outer 1/3 and medial 2/3 of the right clavicle.. ix) Incised wound 2 cm X 1 cm X muscle deep on the tip of the right shoulder in the middle. x) Incised wound 3 cm X 1 cm X cavity deep on the right side of chest, 13 cm medial to right shoulder. xi) Incised wound 4 cm X 2 cm X cavity deep, 3 cm outer to injury No. (x) on right side back of the chest. xii) Incised wound 2 cm X 1 cm x bone deep on the top of right shoulder joint. xiii) Incised wound 3 cm X 1 cm X muscle deep on the outer side of right arm, 11 cm below the shoulder joint. 11 xiv) Incised wound 5 cm X 2.5 cm X bone deep (tender cut horizontally) outside the fore arm 15 cm below the tip of right elbow joint. xv) Incised wound 3 cm X 1 cm X muscle deep on the back right fore arm, 3 cm above the injury No. (xiv). xvi) Incised wound 3 cm X 1 cm X bone deep on the back of right hand, 3 cm above the torso of the phalanx joint of right index finger. xvii) Incised wound 3 cm X 1 cm X cavity deep, horizontal 5 cm outer to right nipple at 9 O’clock position (right side chest). xviii) Incised wound 5 cm X 2 cm X cavity deep, right side on the abdomen, 9 cm from right nipple at 7 O’clock position. xix) Incised wound 3 cm X 1 cm X cavity deep, on the right side of the abdomen, 7 cm below injury No. (xviii). xx) Incised wound 3 cm X 1 cm X bone deep on the palmer aspect of base of right thumb.” The Medical Officer opined that Shiv Charan Singh has also died due to shock and haemorrhage as a result of ante mortem injuries. The above two post mortem reports read with the statement of P.W. 5 Dr. R.K. Saxena, clearly establish on the record that Kailash Chand and Shiv Charan Singh have died of homicidal death and brutally murdered. Now, the question before us is, whether, the accused / appellant Matbar Singh is guilty of commission of murder of the aforesaid two persons, and is he involved in the 12 conspiracy for commission of murder of the two, with co-accused Mahendra Singh, and had he been the party in the robbery with the co-accused? 6) P.W. 1 Dr. Syed Asaf Hussain Zaidi, a Lecturer in the H.N.B. Garhwal University, is an informant. He is a tenant in a house known as ‘JYOTSANA BHAWAN’ in Pauri in the first floor. On 10th May 1989, in the morning hours he saw red liquid coming out of the room from the ground floor where Shiv Charan Singh used to live in the house, as a tenant. According to the witness, he informed the landlord and submitted report (Ext. A –1) with the police station Kotwali Pauri. In the cross-examination he stated that the landlord accompanied him to the police station. This witness has further stated in the cross-examination that there were some blood droppings, from the house JYOTSANA BHAWAN towards road. P.W. 6 Sandeep Massey, the landlord of the house, has corroborated the statement of P.W. 1 Dr. Syed Asraf Hussain Zaidi, a Lecturer in the Garhwal University, who was tenant on the first floor of the house. This witness (P.W. 6 Sandeep Massey) has stated that he lives in a different house at some distance. He further told that Dr. Zaidi called him on 10th May 1989, and told about the blood like liquid coming out of the room of the ground floor where Shiv Charan Singh, Range Officer, used to live as a tenant. P.W. 6 Sandeep Massey, has further stated that when the police reached in the house, it prepared 13 the inquest reports in his presence. The witness has further stated that there were marks of fingers on the almirah inside the house. The witness has further stated that when he entered with the police inside the room he found dead body of Shiv Charan Singh lying on the ground near his bed, and that of Kailash Chand was lying in the Gallery of the another room of the ground floor. P.W. 9 Sub Inspector Birendra Pal Singh has stated that he had got training to lift the fingerprints. He further stated that on 10.05.1989, he was asked by the Investigating Officer to come and take the fingerprints from the spot. He has further stated that he took the impressions of the fingerprints by using the necessary powder and taking impressions on the tapes and kept it in the sealed cover. This witness has further stated that he also took footprint impressions from the place of incident. P.W. 10 Constable Ram Bhool Singh has stated that the fingerprint impressions kept in the sealed cover were taken by him to the police station which were kept there in sealed condition. 7) P.W. 11 Inspector Mehak Singh, who investigated the crime has stated that after interrogation of the witnesses he took the blood stained soil and simple soil from the place of incident. He has further stated that he arrested the accused / appellant Matbar Singh and on his pointing out knife used in the crime by the accused along with a GAMCHHA (a thin towel) were recovered from near a culvert and memorandum Ext. A –2 and 14 Ext. A –5 were prepared in this connection. He further stated that on getting information from accused / appellant Matbar Singh, an amount of Rs. 1000/- (in the form of 20 currency notes of denomination Rs. 50/-) were recovered from the village of co-accused Mahendra Singh, which was part of the looted sum by the accused / appellant. He proved the memorandum (Ext. A –34) prepared in this connection. (We do not find it necessary to further discuss the evidence adduced by prosecution exclusively as against co- accused Mahendra Singh, as he has died during the pendency of this appeal). 8) Having gone through the entire chain of circumstances on record and after re-assessing of the evidence, we concur with the finding recorded by the trial court that charge of offences punishable under Section 120-B, 302 read with Section 34 and 394 read with Section 34 of I.P.C. is proved as against accused / appellants Matbar Singh and Mahendra Singh. The chain of circumstances in this case is complete to prove that it is only the accused / appellants who have committed the crime. The circumstances proved by the prosecution includes letter Ext. A –12 written by accused / appellant Matbar Singh establishing conspiracy, report of the Forensic laboratory relating to the blood stains, report relating to footprint, recovery of knife, recovery of the watch, recovery of the money and injuries suffered by the two deceased, quoted above. 15 9) We have also seen the statement of D.W. 1 Paar Singh and D.W. 2 Rajendra Singh who were got examined in defence. D.W. 1 Paar Singh (father of the accused Mahendra Singh) has stated that Rs. 1,000/- recovered by the police were infact his money which he had kept for purchasing a cow. The statement of this witness examined on behalf of the defence in fact corroborates that recovery was made of Rs. 1,000/- from the house of Mahendra Singh. D.W. 2 Rajendra Singh, though, has stated that accused / appellant Matbar Singh had gone out on the day when Shiv Charan Singh and Kailash Chand were murdered, but this witness failed to disclose where had the accused Matbar Singh gone on that day. Rather, in the last para of his examination-in-chief itself he admits that after the arrest of Matbar Singh police took him towards the culvert (from where knife is said to have been recovered). In the cross-examination this witness admits that accused / appellant Matbar Singh used to work in the year 1988, as daily wageworker with Shiv Charan Singh. 10) Mr. Jitendra Chaudhary, learned counsel for the appellant argued that Matbar Singh was arrested by the police on 10.05.1989, and letter (Ext. 12) was got written forcibly by the police. However, having seen the copies of extracts of the general diary relating to the arrest of the accused, this Court does not find any 16 substance in the submission of learned counsel for the appellant. 11) For the reasons as discussed above, we are of the view that this appeal has no force. The same is liable to be dismissed. The appeal is dismissed. Accused / appellant Matbar Singh is on bail. His bail is cancelled. The lower court record be sent back to the trial court to make the accused / appellant Matbar Singh serve out the sentence awarded to him by the trial court. (As far as the appeal of accused / appellant No. 2 Mahendra Singh is concerned, the same stands abated due to his death during the pendency of the appeal). (B.S. Verma, J.) (Prafulla C. Pant, J.) Dt. September 16, 2008. H. Negi 17