Gajoo vs State Of Uttarakhand

2. We may notice the facts giving rise to the present appeal which in any case fall within a narrow compass. One Smt. Taradevi, the deceased was married to one Gajaram. From this marriage, she had two children namely Rampal and Guddu (PW4). After the unfortunate death of her husband Gajaram, she used to live with her younger son Guddu. The elder son Rampal was married and had been living separately with his family though in the same village. Gajoo, the accused/appellant, is the brother-in-law of deceased Taradevi i.e. her husband’s younger brother. He was also staying separate, though near the house of Taradevi. After the demise of her husband, there were some disputes regarding the division of property between the deceased, on the one hand, and her elder son, Rampal and brother-in-law, Gajoo on the other. The dispute was related to the agricultural land. It is stated that Gajoo and Rampal both did not want to give any land to Taradevi.

3. On the night of 1st July, 1987, a ‘Satyanarayan Katha’ had been organised by Chetu Ram at his house in the village Kotda Kalyanpur. A number of residents of the village had gone to attend the Katha. PW2, Asharam and PW3, Kewalram along with other people were returning back to their homes at midnight. On their way back both PW2 and PW3 heard moaning sounds when they reached near the house of Taradevi. PW2 and PW3 were carrying their torches and in the light of the torches they saw that accused Gajoo was armed with a Daranti, Ext. 2 with which he was hitting the deceased and accused Rampal had held her down, in the Aangan (courtyard) of her house. On being challenged, both these witnesses were threatened by Gajoo stating that they should go away from there. These two witnesses are stated to have neither raised any alarm nor disclosed the incident to anyone. The next morning, information of the incident was given by PW4 to his maternal uncle Bhadu Ram, who was examined as PW1. Upon receiving information, the matter was reported by PW1 to the police in the morning of 2nd July, 1987. PW1 had lodged the written report vide Ext. Ka-1 at Police Station, Sahaspur at about 10.30 in the morning. On the basis of Ext. Ka-1, the FIR, a Check Report, Ext. Ka-16, was prepared. Sub-Inspector Brahma Singh, PW6 started investigation in the matter. He reached the place of incident and did Panchayatnama of the corpse of Taradevi. After performing autopsy on the body of the deceased, vide Ext. Ka-6, he noticed that there were wounds on the corpse and prepared a Report Ext. Ka-8. Then he sent the body for post-mortem examination to Dehradun. Blood stained soil, Ext-3 and plain soil samples, Ext-4 were collected from the spot, and a site plan, Ext. Ka-12 was prepared. Dr. U.K. Chopra of Doon Hospital on 3rd July, 1987 prepared the Post-Mortem Report, Ext. Ka-10 and found the following injuries on the body of the deceased;

(iv) Abrasion 3 cm x 2 cm on the back of the left elbow.

(v) Abrasion 3 cm x 2 cm on the back of the shoulder.

5. PW2 and PW3 who were examined as eye-witnesses have fully supported the case of the prosecution. As already noticed, according to them, when they were on their way back from the house of Chetu Ram after taking part in ‘Satyanarain Katha’, they heard the cries of deceased, Taradevi. When they reached near the house of Taradevi, in the light of torches that they were carrying, they saw that Gajoo and Rampal were throttling her in the Aangan (courtyard) of her house and Gajoo was holding Daranti, Ext. 2 in his hands. When they tried to intervene, they were threatened. PW5, Gudru has proved recovery of Ext. 2 which was used in the crime and recovery memo, Ext. Ka-11 was prepared. After the death of his mother, PW4, Guddu, minor son of the deceased had gone to his uncle’s house to inform him about his mother’s death and thereafter, his uncle lodged the report to the police. He stated that he too had gone to attend the Katha at the house of Chetu Ram and in the morning, when he returned, he saw his mother dead. He partly supported the case of prosecution as he affirmed that there was a dispute with regard to the land between his mother and uncle Gajoo, but stated that he did not know as to who had killed his mother. Investigation Officer, PW6, in the witness box narrated the entire case of the prosecution and the investigation conducted by him.

6. The Investigating Officer filed the report before the Court in terms of Section 172(3) of the Criminal Procedure Code, charging the accused/appellant Gajoo and Rampal, both under Section 302 Indian Penal Code, 1860 (for short ‘IPC’). They faced trial before the Court of Sessions Judge and were convicted for the offence under Section 302 IPC vide judgment dated 2nd July, 1990. The trial court awarded life imprisonment to the accused Gajoo, as the accused Rampal had died during the pendency of the appeal.

4. The Daranti and blood stained pyjama which were recovered, were not sent for FSL examination and no serological report was obtained.

30. Where the eye witness account is found credible and trustworthy, medical opinion pointing to alternative possibilities may not be accepted as conclusive. The expert witness is expected to put before the Court all materials inclusive of the data which induced him to come to the conclusion and enlighten the court on the technical aspect of the case by examining the terms of science, so that the court, although not an expert, may form its own judgment on those materials after giving due regard to the expert’s opinion, because once the expert opinion is accepted, it is not the opinion of the medical officer but that of the Court. {Plz. See Madan Gopal Kakad v. Naval Dubey & Anr. [(1992) 2 SCR 921: