THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 400/2001 ( Old No. 2027/1997) Dhan Singh @ Dhanua and 3 others .. Appellants Vs. State ..Respondent Smt. Nishat Intezar, learned Amicus Curiae for appellants. Sri S.S. Adhikari, learned A.G.A. for the State. Coram: Hon’ble B.C. Kandpal, J. Hon’ble Nirmal yadav, J. [Per: Hon’ble B.C. Kandpal, J.] This appeal, under Section 374(2) Cr.P.C. arises out against the judgment and order dated 29-7- 1997, passed by III Additional Sessions Judge, Nainital, in S.T.No. 252/1991, whereby the accused/appellants Dhan Singh @ Dhanua, Narayan Singh @ Rasia, Bhallu and Sunder Nath, have been convicted for the offences U/Ss 302/34, 364, and 380 I.P.C. and each of them were sentenced to undergo life imprisonment and a fine of Rs. 2000/- U/S 302/34 I.P.C. and in default of payment of fine to further undergo six months R.I.; to undergo seven years R.I. and a fine of Rs. 1000/- each U/S 364 I.P.C. and in default of payment of fine to further undergo three months R.I. and to undergo R.I. for three years and a fine of Rs. 500/- each U/S 380 I.P.C. and in default of payment of fine to further undergo two months R.I. However, all the sentences were to run concurrently. 2- The prosecution case, in short, is that in the night of 26/27.5.1991, complainant Naval Kishore was sleeping on the roof of his house in village Sultanpur P.S. Bazpur and his wife Smt. Omwati and son Girish 2 Kumar, aged 5 years were sleeping on the cot in his courtyard. At about 2.00 A.M. in the night his wife found missing his son from the cot. He was not found here and there. The tape-recorded was also missing from inside his Almirah. During this period noise was heard at the neighboring house of Ram Prasad and then it was noticed that there were thieves and fled away. Large number of people collected there. Search for the thieves was made but they were not caught. The thieves committed theft of the tape-recorder and they also picked up Girish Kumar with them. The F.I.R. (Ext. Ka.1) of the incident was lodged by Naval Kishore at P.S. Bazpur on 27.5.1991, at 7.50 A.M. on the basis of which, Chick F.I.R. (Ext. Ka.4) was drawn at the police station, and a case U/S 380/363 I.P.C. was lodged at report No. 21 dated 27.5.1991, carbon copy of the G.D. is Ext. Ka.5. 3- S.I. J.P. Bansala started investigation in the case. He recorded the statements of Naval Kishore, Udal Singh and others. He visited the place of occurrence and prepared the site-plan (Ext. Ka.6. On 28.5.1991 on the information of an informer, he along with some police personnel and public witnesses Lalman Das, Udal Prasad and Naval Kishore went at the pointing place of the informer. The I.O. raided the place and near Railway Station Sarkara four persons were arrested at 9.00 A.M. On their search tape- recorder was recovered from accused Dhan Singh and the cassette placed inside the tape was bearing the name of Naval Kishore. From accused Narayan Singh a copper jug was recovered, which was wrapped in a cloth. From accused Bhallu Eveready Torch was 3 recovered and accused Sunder Nath was having a gunny-bag in his hand, in which a dish and a steel tumbler were kept. All these recovered articles were bearing the name of Naval Kishore. Naval Kishore identified the above articles. The I.O. prepared recovery memo, Ext. Ka.2 at the place of recovery. The I.O. also prepared arrest memo Ext. Ka.8. The accused persons did not tell anything about the child, at the place of their arrest. These persons were kept Baparda and brought to the police station. The accused persons were interrogated by police and they confessed their guilt. Thereafter, on their pointing out dead body of kidnapped boy was found near mango-garden of Gulam Mustafa. The accused also carried the police to the place where the murder of Girish Kumar was committed by them. Accused Dhan Singh also got recovered the weapon used in the commission of crime. The police took into possession the dead body and the weapon and prepared memo, Ext. Ka.3. Site plan of that place, Ext. Ka.9 was also prepared by the I.O. He also performed the inquest on the dead body of Girish Kumar and prepared inquest report, Ext. Ka.10. Thereafter he prepared letter to incharge Government Hospital, Kashipur (Ext. Ka.11), Police Form No. 13 (Ext. Ka.12), sketch dead body(Ext. Ka.13) and sample seal (Ext. Ka.14) and sent the dead body for post mortem. The case was converted U/Ss 364, 302, 201, 380, 411 I.P.C. against the accused persons vide G.D. report No. 24, carbon copy of which is Ext. Ka.15. 4- The autopsy on the dead body of deceased Girish Kumar was performed by Dr. S.P. Srivastava, in Govt. Hospital, Kashipur and he found that the body 4 was decomposed. Rigor mortis passed away. Maggots were present. He found the following ante-mortem injuries on his person- 1- Incised wound extending from upper part of chest and extending up to the neck, exposing the vertebral column. All the soft tissue, trachea, oesophagus were absent. Maggots present on the wound. 2- Three incised wounds, spindle shaped on parathilial region, in 9 O’clock position, 11 O’clock position and 1 O’clock position, with charred skin all around. No line of demarcation present over loral and charred skin. In the opinion of the doctor the cause of death was shock and haemorrhage due to ante-mortem injuries. The doctor prepared post mortem report, Ext. Ka.17. 5- The I.O. after competing the investigation submitted charge sheet, Ext. Ka.16 against the accused persons. 6- The Addl. C.J.M. Kashipur, vide his order dated 19-9-1991, committed the case to the court of Sessions. 7- The Special Judge, Nainital framed charges U/Ss 380, 364 and 302/34 I.P.C. against all the accused persons. They were further charged U/S 411 I.P.C. separately. All the accused denied the charges and claimed to be tried. 5 8- The prosecution, in support of its case, produced P.W.1, Naval Kishore, P.W.2, Udal Singh and P.W.3, J.P. Bansala, I.O. of the case. 9- The accused persons in their statements U/S 313 Cr.P.C. denied the prosecution allegations and alleged that they have been falsely implicated in the case. No defence evidence has been adduced. 10- The learned trial court after having considered the entire evidence on record and hearing learned counsel for parties, found the accused persons guilty of the offences U/Ss 302/34, 364, and 380 I.P.C. and each of them were sentenced to undergo life imprisonment and a fine of Rs. 2,000/- U/S 302/34 I.P.C. and in default of payment of fine to further undergo six months R.I.; to undergo seven years R.I. and a fine of Rs. 1,000/- each U/S 364 I.P.C. and in default of payment of fine to further undergo three months R.I. and to undergo R.I. for three years and a fine of Rs. 500/- each U/S 380 I.P.C. and in default of payment of fine to further undergo two months R.I. However, all the sentences were to run concurrently. All the accused were not convicted for the charge U/S 411 I.P.C. framed against them. 11- Feeling aggrieved by the aforesaid judgment passed by the trial court the accused/appellants have preferred this appeal. 12- It is noteworthy that accused/appellant Dhan Singh @ Dhanua has died during the pendency 6 of appeal, hence the appeal stood abated against him vide this court’s order dated 2-8-2004. 13- We have heard learned Amicus Curiae on behalf of the accused/appellants and the learned A.G.A. and perused the record. 14- Learned Amicus Curiae pointed out that the case is based on circumstantial evidence and the prosecution has not been successful in establishing the guilt of accused/appellants beyond all reasonable doubt, hence, the conviction of the accused/appellants is not sustainable in the eye of law. 15- The learned A.G.A. refuted the above contention and submitted that the prosecution has established the chain of circumstances and the circumstances put forward by the prosecution are consistent only with the hypothesis of the guilt of the accused/appellants. 16- It is true that there is no eyewitness account in the instant case and the case rests on circumstantial evidence, therefore, it is to be seen as to whether the prosecution has been successful in proving its case against the accused/appellants beyond all reasonable doubt or not?. 17- The circumstances put forth against the accused/appellants by the prosecution are that in the night in between 26th and 27th of May, 1991, complainant Naval Kishore was sleeping on the roof of his house situated in village Sultanpur, P.S. Bazpur 7 and his wife Smt. Omwati along with his 5 years old son Girish Kumar was sleeping on a cot in the courtyard of the house and in that very night accused persons committed theft in the house of Naval Kishore and also kidnapped his son Girish Kumar. During investigation the I.O. was informed by an informer that at the pointing place some miscreants are moving, therefore, the I.O. raided that place in presence of the complainant P.W.1, Naval Kishore, P.W.2, Udal Singh and some police personnel and near Sarkara Railway Station the four accused persons were arrested and from their possession stolen articles were recovered. The accused confessed their guilt and they also got discovered the dead body of Girish Kumar and the weapon used in the commission of murder. 18- The prosecution in order to prove the case against the accused has produced three witnesses, of which, P.W.1, Naval Kishore is the complainant who lodged the report at the police station. He is also the witness of recovery of stolen articles as well as discovery of dead body of Girish Kumar and the weapon used in the commission of crime on the pointing out of the accused. P.W.2, Udal Singh is also the witness of recovery of stolen articles from the possession of accused persons as well as discovery of dead body and the weapon used in the crime. P.W.3, J.P. Bansala, is the I.O. of the case. He has proved the prosecution documents as well as the recovery of stolen articles from the possession of the accused persons. This witness also proved the factum of discovery of dead body and the weapon of assault on the pointing out of the accused persons. 8 19- P.W.1, Naval Kishore, has given the description of the incident. According to this witness in the night in between 26th and 27th of May, 1991, he was sleeping on the roof of his house and his wife Smt. Omwati along with his 5 years old son Girish Kumar was sleeping on a cot in the courtyard of the house. At 2.00 A.M. in the night his wife found the child missing from the cot. They started search of the child but he was not found here and there. They also found that a tape-recorder kept in the Almirah was also missing. He lodged the written report, Ext.Ka.1, of the incident at police station Bazpur. He further deposed that on the next day of incident he along with co-villagers and police personnel went at Sarkara Railway Station and there he saw that four persons were hiding in the field of Ali Hassan. This witness has deposed that these accused persons were arrested by the police at about 8.30 A.M. and the accused had disclosed their names to them. He also deposed that on making search of these persons, a tape-recorder with cassette, torch, copper jug, tumbler and dish were found from their possession. He further stated that recovery memo, Ext. Ka.2 was prepared at the place of recovery itself. He has proved the recovery memo. This witness further deposed that the accused did not tell anything about the child at the place of their arrest and recovery of stolen articles, but at the police station they confessed their guilt and told that they have concealed the dead body of the child. At this the accused persons were escorted to the place where the dead body of the deceased was concealed by them. The accused persons got discovered the dead body of Girish Kumar from 9 flock of Sadasuhagan near Koshi ravine situated near the garden of Mustafa. The accused also got discovered the weapon used by them in the commission of murder of the child. This witness also proved the recovery memo Ext. Ka.3, prepared by the police pertaining to the discovery of dead body and the weapon of assault. This witness also proved his stolen articles material exhibits 1 to 7 and a black colour bag, exhibit-8. He also proved the big size iron-spoon exhibit-9, used in the commission of crime by the accused and discovered at the pointing out of accused Dhan Singh. This witness has been cross-examined at length, but no reason has been assigned to him by defence as to why he would falsely depose against the accused persons. His testimony seems to be cogent and reliable. There is no reason to disbelieve his testimony. Therefore, from the testimony of P.W.1, Naval Kishore, it has been fully proved that the accused persons committed theft at his house in the night in between 26th and 27th May, 1991 and they also kidnapped his son Girish Kumar from the courtyard of his house. Recovery of stolen articles from the possession of accused persons has also been proved from the testimony of this witness. It is further proved from his testimony that the accused confessed their guilt and got discovered the dead body of his son Girish Kumar and the weapon of assault was also discovered at the pointing out of accused Dhan Singh. 20- The above deposition of P.W.1, Naval Kishore, has been fully corroborated by the evidence of P.W.2, Udal Singh. This witness has deposed that search of the child was started in the night of incident 10 itself and the F.I.R. was lodged in next morning. He also deposed that he along with other persons had gone to Sarkara Railway Station where the police had arrested the four accused persons from a field. This witness also deposed that on making search of the accused persons the stolen articles belonging to Naval Kishore were found in their possession. He also deposed that the recovery memo was prepared at the place of arrest of the accused. This witness also identified the recovery memo, Ext. Ka.2 and his signature made on it. He also stated about the discovery of dead body of the deceased and the weapon used in the commission of murder of the child on the pointing out of the accused persons. In the cross- examination of this witness also, nothing immaterial has come, which may render his testimony untrustworthy. We find that the testimony of this witness is cogent and reliable and he has fully supported the prosecution version pertaining to the arrest of the accused, recovery of stolen articles from their possession, and discovery of dead body of Girish Kumar and the weapon of assault on the pointing out of the accused persons. 21- P.W.3, J.P. Bansala, I.O. of the case has also deposed about the arrest of the accused, recovery of stolen articles from their possession, and the discovery of dead body of Girish Kumar and the weapon of assault on the pointing out of the accused. The accused persons in their statement U/S 313 Cr.P.C. although have deposed that they have been falsely implicated in the crime, but they have admitted this fact that they were arrested from near Railway Station. 11 No reason has been shown as to why the police would show false recovery of the stolen articles from the accused persons. All the three witnesses are consistent on the points of arrest of accused, recovery of stolen articles from them and the discovery of dead body and weapon of assault on the pointing out of the accused persons. 22- Although the doctor, who conducted post mortem on the dead body of the deceased, has not been produced in the case, but the genuineness of post mortem report has been admitted by the learned counsel for the accused before the trial court, hence the autopsy report can very well be read in evidence. Perusal of autopsy report, Ext. Ka. 17, shows that the doctor found incised wounds on the body of the deceased. The weapon discovered on the pointing out of the accused Dhan Singh is like a big size iron spoon and incised wounds could be caused by it. The cause of death given by the doctor in the autopsy report is shock and haemorrhage due to ante-mortem injuries. In this way the medical version also fully corroborates the prosecution case. 23- Thus, we find that the circumstances put forth by the prosecution are consistent only with the hypothesis of the guilt of the accused/appellants. The chain of circumstances is complete and there is no reasonable ground for a conclusion consistent with the innocence of the accused and in all human probability it is proved that the accused/appellants committed theft at the house of Naval Kishore, complainant in the night in between 26th and 27th May, 1991, kidnapped 12 his minor son Girish Kumar from his courtyard and thereafter committed his murder. We do not find any ground to interfere with the conclusion arrived at by the learned trial court. 24- For the discussion made above, the appeal lacks merit and is liable to be dismissed. 25- Accordingly, the appeal is dismissed. The impugned judgment and order passed by the trial court convicting and sentencing the accused/appellants U/Ss 302/34, 364, and 380 I.P.C. is hereby confirmed. 26- Accused/appellant Dhan Singh @ Dhanua has died during pendency of appeal, hence the appeal has abated against him. 27- The other accused/appellants Narayan Singh, Bhallu and Sunder Nath are on bail. Their bail bonds are cancelled and sureties discharged. They be taken into custody forthwith so as to serve out the sentences passed against them. 28- Let the record of the case be sent to the trial court for compliance. (Nirmal Yadav, J.) (B.C. Kandpal, J.) Dated: April 26, 2010. ISB