RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No. 390 of 2001 (Old No. 1757/1997) Neeraj Negi .…. Appellant/Accused Versus State of U.P. …………… Respondent Mr. A.S. Gill, Advocate for the appellant/convict. Mr. Prabhakar Joshi, Brief Holder for the State/respondent. ……………………… Dated: , 2009 Coram: Hon. B.C. Kandpal, J. Hon. Dharam Veer, J. Judgment: Per Hon. Dharam Veer, J. This appeal, preferred by the appellant under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.), is directed against the judgment and order dated 29.9.1997 passed by the 2nd Additional Sessions Judge, Nainital in Sessions Trial No. 59 of 1997, State v. Neeraj Negi, whereby learned Additional Sessions Judge has convicted the accused appellant Neeraj Negi under Section 302 of Indian Penal Code, 1860 (for short, IPC) and sentenced him to life imprisonment. 2. In brief, the prosecution case is that PW1 Smt. Bhavna Pandey lodged an FIR Ex. Ka-1 in PS Bhimtal with the averments that on 2.11.1996 at around 6 pm, the accused appellant Neeraj Negi came at her house and was talking to her sister-in-law (Jethani) Smt. Ganga Pandey (PW2). Her father-in-law Jwala Dutt Pandey objected on this and asked the accused appellant as to why he used to come to his house. Upon this, the accused appellant angrily left her house. Electric light was on outside her house. At about 9.30 pm, she went towards the toilet outside the house. She saw that the accused appellant was standing outside the shed of cattle. His intention was not fair. Her father-in-law Jwala Dutt Pandey and her mother-in-law came outside on her shouting. Her father- in-law followed the accused appellant up to the lemon tree, then the accused appellant clasped him and after putting him down, assaulted him many times with a sharp edged weapon. When they started shouting, then he ran away towards the road. After hearing the shout, many people from the neighbourhood reached at the place of occurrence but by that time, her father-in-law Jwala Dutt Pandey was dead. With these averments, FIR Ex. Ka-1 was lodged in PS Bhimtal on 2.11.1996 at 11 pm. Chick FIR Ex. Ka-11 was prepared by Constable Clerk Shankar Ram. Investigation of this case was entrusted to Station Officer DK Sharma (PW3). During the course of investigation, the I.O. prepared the inquest report Ex. Ka-4. Thereafter dead body was sent for the post mortem, which was conducted by PW4 Dr. J.P. Bhatt on 3.11.1996 at 2.30 pm and prepared the post mortem report Ex. Ka-12. During the course of investigation, the I.O. inspected the place of occurrence and prepared the site plan Ex. Ka-2. Samples of blood stained soil and plain soil were also collected from the place of occurrence and fard Ex. Ka-3 was prepared. On the application of the I.O., CJM ordered for police remand of the accused appellant w.e.f. 14.11.1996 to 16.11.1996. The order of the CJM, Nainital is Ex. Ka-5. During the police remand on 15.11.1996, the knife used in the commission of crime was recovered from the bushes near the place of occurrence on the pointing out of the accused appellant and fard Ex. Ka-6 was prepared. Site plan of the place of recovery of the said knife was also prepared, which is Ex. Ka-7. Entry was also made in the 2 GD, copy of which is Ex. Ka-8. The recovered knife, samples of soil and other recovered articles, viz., baniyan, underwear, thread etc. were sent to Forensic Laboratory, Agra for chemical examination. Report of the Forensic Laboratory, Agra is Ex. Ka-9. During the course of investigation, the I.O. recorded the statements of the witnesses and after completing the investigation, filed the chargesheet Ex. Ka-10 against the accused appellant. 3. Learned Chief Judicial Magistrate, Nainital after giving the necessary copies of the documents to the accused appellant as prescribed under Section 207 Cr.P.C., committed the case to the Court of Sessions on 20.1.1997. Learned Sessions Judge, Nainital transferred the case to 2nd Additional Sessions Judge, Nainital for its disposal according to law. 4. On 28.3.1997, learned 2nd Additional Sessions Judge, Nainital framed the charge against the accused appellant under Sections 302 IPC. The charge was read over and explained to the accused appellant, who pleaded not guilty and claimed to be tried. 5. To prove its case, the prosecution has examined PW1 Smt. Bhavna Pandey, the complainant and an eyewitness of the incident; PW2 Smt. Ganga Padey; PW3 Station Officer D.K. Sharma, the I.O. of the case and PW4 Dr. J.P. Bhatt, who conducted the autopsy and prepared the post mortem report Ex. Ka-12. 6. Thereafter, statement of the accused appellant was recorded under Section 313 CrPC. The oral and documentary evidence were put to him in question form, who denied the allegations made against him and stated that he has been falsely implicated in the case. However, 3 in defence, he did not produce any documentary or oral evidence. 7. After hearing learned counsel for the parties and after appreciating the evidence available on record, learned 2nd Additional Sessions Judge, Nainital vide his judgment and order dated 29.9.1997 convicted and sentenced to the appellant accused as discussed above. Against the aforesaid judgment and order dated 29.9.1997, the convict appellant has preferred the present appeal. 8. We have heard learned Counsel for the parties and have carefully perused the entire material available on the record. 9. Before any further discussion, it would be pertinent to mention here the ante mortem injuries found on the body of the deceased Jwala Dutt Pandey at the time of post mortem examination on 3.11.1996 at 2.30 pm, which were recorded by PW4 Dr. JP Bhatt in the post mortem report Ex. Ka-12 and the same are reproduced as below: “(1) An incised wound 3 cm x 1 cm x bone deep over left side neck, 10 cm below left jaw ankle, transversely placed. Tail end directed backwards on cutting the wound sterno cycolysed muscle of left side is transversely cut and body of vertebrae (4th cervical) is visible. Vessels underlying the wound are served. Clotted blood is present in adjoining tissues. (2) An incised wound 3 cm x 1 cm x bone deep over left side chest just above the left clavicle in the mid part 5 cm below no. (1) tail end directed medially and upwards on cutting clotted blood present in the tissues. (3) An incised wound 3 cm x 1 cm x muscle deep over left side shoulder 2 cm medial to tip of left shoulder, tail end directed medially on cutting clotted blood present in the tissues. (4) An incised wound .5 cm x .5 cm x skin deep on left shoulder 1 cm lateral and behind injury no. (3). On cutting clotted blood is present in the tissues. 4 (5) An incised wound 3 cm x 1 cm x right chest cavity deep just about and medial to right nipple at 2 O’clock position. Transversely placed between 4 and 5th inlucertial space. Tail end directed downwards laterally. On cutting the wound commencing the right chest cavity and the pleura below the wound is cut, right pleural cavity is full of blood. Right lung is not punctured. Clotted blood is present in the tissues adjoining the wound left pleura and lung NAD. (6) An incised wound 3 cm x 1 cm x muscle deep over front of abdomen in the epigesture region 3 cm below xiphoid process. Transversely placed, tail end directed towards right. On cutting clotted present in the underlying tissues. (7) An incised wound 2 cm lateral to underlines on right side at 11 O’clock posterior size, 3 cm x 1 cm x muscle deep placed vertically, tail end directed downwards on cutting clotted blood present in the underlying tissues. (8) An incised wound 1.5 cm x .5 cm x muscle deep just below left rib in front in mid clavicular line over right abdomen, tail end directed medially, on cutting clotted blood present in the tissues. (9) An incised wound 1 cm x 1/1/2 cm x muscle deep on lateral surface of left arm placed transversely 15 cm above from left elbow joint tail end directed anterially, on cutting clotted blood present in the tissues. (10) An incised wound, 4 cm x 1 cm x muscle arm medial surface of left thigh 4 cm below pubic synphysis, tail and directed downward, wound placed vertically, on cutting clotted blood present in the tissues. (11) An incised wound 4 cm x 1 cm x muscle deep, placed vertically over left thigh medial surface 8 cm below injury no. 10, tail end directed downwards on cutting clotted blood present in the tissues. (12) An incised wound 6 cm x 1.5 cm x muscle deep over left thigh medially, tail end directed downwards and touching the knee joint, on cutting clotted blood present in the tissues. (13) An incised wound 2 cm x .5 cm x skin deep over front of left leg 15 cm above left ankle joint, transversely placed, tail end directed medially on cutting clotted blood present in the tissues. (14) An incised wound, 2 cm x 1/4 cm x skin deep 2 cm below injury no. 13, on cutting clotted blood present in the tissues. (15) An incised wound 2 cm x .5 cm x muscle deep over left hip on the back just adjacent to left hip joint transversely placed, tail end directed medially on cutting clotted blood present in the tissues. (16) Abraded contusion, two in number over right side back of chest, size 2 cm x 2 cm and 3 cm x 2 cm respectively, lacerated 3 cm apart over 5th to 7th 5 intestinal space on right side back on cutting clotted blood present in the tissues.” 10. To prove the aforesaid post mortem report Ex. Ka-12, the prosecution has examined PW4 Dr. JP Bhatt, who has proved the contents of the same and has stated that the injuries sustained by the deceased Jwala Dutt Pandey could have been inflicted upon him between 9 to 10 in the night of 2/3.11.1996 with a sharp edged weapon like the knife Ex. 1. The deceased died due shock and haemorrhage due to the aforesaid injuries. 11. To further prove its case, the prosecution has examined PW1 Smt. Bhavna Pandey, the complainant and an eyewitness of the incident. She has proved the contents of the FIR Ex. Ka-1. She has stated in her deposition that on 2.11.1996 at around 6 pm, the accused appellant Neeraj Negi came at her house and was talking to her sister-in-law (Jethani) Smt. Ganga Pandey (PW2). Her father-in-law objected on this and asked the accused appellant as to why he used to come in his house. Upon this, the accused appellant angrily left her house. Electric light was on outside her house. He came back at 9-9.30 pm. When she went towards the toilet, she saw that the accused appellant was standing near the lemon tree and she identified him in the light of electricity. Her father-in- law Jwala Dutt Pandey came outside the house on her shouting and went near the lemon tree, then the accused appellant clasped him and badly assaulted him with a sharp edged weapon. On hearing her shout, her sister-in- law (Jethani) Smt. Ganga Pandey (PW2) and mother-in-law also came outside the house. Thereafter the accused appellant ran away from the place of occurrence and her father-in-law died on the spot. This witness was cross- examined at length by the defence counsel but she could not be shaken. 6 12. PW2 Smt. Ganga Pandey in her deposition has corroborated the statement of PW1 Smt. Bhavna Pandey. 13. PW3 D.K. Sharma, the I.O. of the case, has stated that on 2.11.1996, he was posted as Station Officer at PS Bhimtal. Investigation of this case was done by him. During the course of investigation, he inspected the place of occurrence and prepared the site plan Ex. Ka-2 on the pointing out of the complainant Smt. Bhavna Padey (PW1). He also collected the samples of blood stained soil and plain soil from the place of occurrence and prepared the fard Ex. Ka-3. He also prepared the Panchayatnama of the dead body and the same is Ex. Ka-4. On 8.11.1996, he recorded the statement of the accused appellant in the District Jail, who told him that he could get the weapon recovered which was used by him in the commission of crime. Hence, he moved an application for taking the accused appellant in police remand. The accused appellant was taken into police remand on the orders of CJM w.e.f. 14.11.1996 to 16.11.1996. That order of CJM is Ex. Ka-5. During the police remand on 15.11.1996, the knife used in the commission of crime was recovered from the bushes near the place of occurrence on the pointing out of the accused appellant. The said knife was sealed on the spot and fard Ex. Ka-6 was prepared. Site plan of the place of recovery of the said knife was also prepared, which is Ex. Ka-7. Entry was also made in the GD, copy of which is Ex. Ka-8. The recovered knife, samples of soil and other recovered articles, viz., baniyan, underwear, thread etc. were sent to Forensic Laboratory, Agra for chemical examination. Report of the Forensic Laboratory, Agra is Ex. Ka-9. During the course of investigation, he recorded the statements of the witnesses and after 7 completing the investigation, filed the chargesheet Ex. Ka- 10 against the accused appellant. 14. Thereafter, statement of the accused appellant was recorded under Section 313 CrPC. The oral and documentary evidence were put to him in question form, who denied the allegations made against him and stated that he has been falsely implicated in the case. However, in defence, he did not produce any documentary or oral evidence. 15. Learned Counsel for the accused appellant argued that on the basis of the evidence discussed above, the prosecution has failed to prove its case against the accused appellant beyond reasonable doubt and he is entitled to get the benefit of doubt. We do not find any force in the argument of learned Counsel for the appellant for the reasons discussed below. 16. PW1 Smt. Bhavna Pandey is the complainant and an eyewitness of the incident, who has stated in her deposition that on 2.11.1996 at around 6 pm, the accused appellant Neeraj Negi came at her house and was talking to her sister-in-law (Jethani) Smt. Ganga Pandey (PW2). Her father-in-law objected on this and asked the accused appellant as to why he used to come to his house. Upon this, the accused appellant angrily left her house. Electric light was on outside her house. Thereafter at about 9.30 pm, when she went towards the toilet, she saw that the accused appellant was standing near the lemon tree and she identified him in the light of electricity. His intention was not fair. Her father-in-law Jwala Dutt Pandey came outside the house on her shouting and went near the lemon tree, then the accused appellant clasped him and 8 badly assaulted him with a sharp edged weapon. On hearing her shout, her sister-in-law (Jethani) Smt. Ganga Pandey (PW2) and mother-in-law also came outside the house. Thereafter the accused appellant ran away from the place of occurrence and her father-in-law died on the spot. This witness was cross-examined at length by the defence counsel but she could not be shaken. 17. The statement of PW1 Smt. Bhavna Pandey finds corroboration from the statement PW2 Smt. Ganga Pandey, who had also reached at the place of occurrence after hearing the shout of Smt. Bhavna Pandey when the accused appellant started assaulting the deceased. 18. The motive behind the commission of crime is also clear. Accused appellant used to visit the house of the deceased. On 2nd November, 1996 at 6 pm when the accused appellant came at the house of the deceased and was talking to Smt. Ganga Pandey (PW2), he was scolded by the deceased. The deceased Jwala Dutt Pandey also questioned his motive behind coming to his house. Thereafter the accused appellant being angry with the treatment met to him by the deceased, left his house. He again came back in the night at 9-9.30 pm and committed the murder of Jwala Dutt Pandey by assaulting him with the knife, which was also got recovered from the bushes near the place of occurrence on the pointing out the accused appellant himself. 19. The ocular evidence adduced by the prosecution is also supported by the medical evidence. The post mortem of the dead body was conducted by PW4 Dr. JP Bhatt on 3.11.1996 at 2.30 pm, who prepared the post mortem report Ex. Ka-12 wherein it has been recorded that the deceased sustained as many as 16 injuries on his body. 9 Out of 16 injuries, 15 were inflicted upon him by a sharp edged weapon. The deceased died due to shock and haemorrhage due to the said injuries, which could have been caused between 9 to 10 pm on 2.11.1996 with a sharp edged weapon like the knife Ex. 1. Thus, the case of prosecution is supported by the medical evidence. Furthermore, the report of the Forensic Laboratory, Agra Ex. Ka-9 also reveals that human blood was found on all the articles which were sent for the chemical analysis. 20. It is also important to note here that the said incident happened at around 9 to 9.30 pm on 2.11.1996 and it was reported immediately at 11 pm on the same day. The police station was situated at a distance of nearly two and half kilometers from the place of occurrence. Thus, the FIR is also prompt. 21. For the reasons recorded above, we are clearly of the opinion that the prosecution has succeeded in establishing its case against the accused appellant beyond any shadow of doubt and we are in total agreement with the view and the findings recorded by the learned trial court. Therefore, the conviction of the accused appellant under Section 302 IPC is justified and sentence awarded to the accused appellant is commensurate with the offence committed by him. 22. In the result, the appeal being devoid of merit is hereby dismissed. Judgment and order dated 29.9.1997 passed by the 2nd Additional Sessions Judge, Nainital in Sessions Trial No. 59/1997, State v. Neeraj Negi convicting the accused appellant under Section 302 IPC is upheld and sentence to undergo life imprisonment is hereby also affirmed. 10 23. A copy of this order be sent to the trial court for its compliance. Let the lower court record be sent back. (Dharam Veer, J.) (B.C. Kandpal, J.) Prabodh 11