Prafulla C. Pant, J.@mdashThis appeal, preferred u/s 374 of the Code of Criminal Procedure, 1973 (for short Cr.P.C.), is directed against the judgment and order dated 30th of May 2001, passed by Sessions Judge, Pithoragarh, in Sessions Trial No. 20 of 1998, whereby said court has convicted accused/Appellant Navin Chandra u/s 302 of the Indian Penal Code, 1860 (for short I.P.C.), read with Section 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short SCST (PA) Act 1989), and sentenced him to imprisonment for life. The accused/Appellant is further convicted u/s 201 of I.P.C., and sentenced to rigorous imprisonment for a period of five years on that count.
2. Heard learned Counsel for the parties and perused the lower court record.
3. Prosecution story, in brief, is that Sher Ram (deceased) was a Post Master, in Village Badave. The Post Office was housed in the house of Appellant Navin Chandra and his brother Chandra Shekhar (since acquitted). On 13.02.1998, Sher Ram went to the Post Office, and did not return back. On 15.02.1998, his nephew Mohan Ram (P.W. 1) gave first information report (Ext. A -1) to Patti Patwari Badave, reporting that his uncle Sher Ram is missing, and suspected that he has been murdered by Navin Chandra (accused/Appellant) and his brother Chandra Shekhar (since acquitted). (In Uttarakhand hills, in some areas, vide U.P. Government Notification No. 494/VIII - 418 - 16 dated 7th March 1916, certain revenue officials are given police powers). On the basis of report (Ext. A -1), P.W. 6 Jagdish Chandra Pandey, Patti Patwari of Badave, prepared check report (Ext. A -7), and registered Crime No. 01 of 1998, against accused/Appellant Navin Chandra and his brother Chandra Shekhar, relating to offence punishable u/s 364 of I.P.C. He (P.W. 6) started investigation. On 16.02.1998, accused/Appellant Navin Chandra was arrested, and on his pointing out dead body of Sher Ram was recovered from a soak pit of toilet of Government Inter College, Badave. A recovery memo (Ext. A -2) was prepared by the Investigating Officer in the presence of the witnesses which was signed by the accused Navin Chandra himself. Thereafter, the Investigation Officer took the dead body in his possession, and prepared inquest report (Ext. A -9), and other necessary papers like sketch of the dead body (Ext. A -10), police form No. 13 (Ext. A -11), sample seal (Ext. A -12), and letter to the Chief Medical Officer (Ext. A -13) requesting for postmortem examination. P.W. 2 Dr. D.S. Nabiyal along with one Dr. K.S. Mehta conducted postmortem examination on the dead body of Sher Ram on the very day (i.e. 16.02.1998), at 04:20 P.M. He recorded as many as 13 incised wounds, two multiple abrasions, and one abraded contusion as ante mortem injuries. After the postmortem examination, the team of doctors prepared autopsy report (Ext. A -5), and opined that deceased had died of shock and haemmhorage, as a result of ante mortem injuries. Meanwhile, P.W. 6 Jagdish Chandra Pandey, the Investigating Officer, recovered ''BADIYAT'' (heavy sharp edged weapon) on pointing out of accused Navin Chandra on 16.02.1998, at about 12:15 P.M. He prepared recovery memo (Ext. A -4) and got it signed not only from the witnesses but also from accused/Appellant Navin Chandra. Also, blood stained soil and simple soil were taken from the place of incident, and recovery memo (Ext. A -6) was prepared on the very day (i.e 16.02.1998). Apart from this, blood stained clothes of the deceased were also sealed vide recovery memo (Ext. A -3) prepared by the Investigating Officer. On 04.03.1998, P.W. 5 Smt. Kaushalya Devi (sister-in-law of the Appellant) was produced by the Investigating Officer before the Judicial Magistrate, Pithoragarh, who recorded her statement u/s 164 of Code of Criminal Procedure, in which she stated that deceased Sher Ram molested her on 12th of February 1998, and consequently, accused Navin Chandra who saw deceased molesting her. It appears that the blood stained clothes, blood stained soil, simple soil, and weapon recovered (BADIYAT) were sent for chemical analysis. On completion of investigation, the Investigating Officer submitted charge sheet (Ext. A -15) against the accused/Appellant Navin Chandra, his brother Chandra Shekhar, and two others namely Bhuwan Chandra and Madhu Singh @ Madan Singh, for their trial in respect of offences punishable u/s 302/201 of I.P.C., and one relating to offence punishable u/s 3(1)(v) of SCST (PA) Act, 1989.
4. The Judicial Magistrate, Pithoragarh, on receipt of the charge sheet, after giving necessary copies to the accused as required u/s 207 of Code of Criminal Procedure, committed the case to the court of Sessions for trial. On 10.06.1999, learned Sessions Judge, Pithoragarh, after hearing the parties, framed charge of offence punishable u/s 302/34 of I.P.C. read with Section 3(2)(v) of SCST (PA) Act, 1989, and one relating to offence punishable u/s 201 of I.P.C. read with Section 3(2)(vi) of SCST (PA) Act, 1989, against all the four accused, namely Navin Chandra, Chandra Shekhar, Bhuwan Chandra and Madan Singh, to which they pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1 Mohan Ram (informant), P.W. 2 Dr. D.S. Nabiyal (who conducted postmortem examination); P.W. 3 Heera Devi (widow of the deceased); P.W. 4 Mathura Prasad (witness of recovery of dead body and that of BADIYAT); P.W. 5 Kaushalya Devi (declared hostile); and P.W. 6 Jagdish Chandra Pandey (the Investigating Officer). The oral and documentary evidence was put to the accused u/s 313 of Code of Criminal Procedure In reply to the questions, accused/Appellant Navin Chandra admitted that he is not a member of Scheduled Caste, and the deceased was member of Scheduled Caste. He further admitted that Post Office was housed in his house in which family of Chandra Shekhar used to live. However, as to the rest of the evidence, he alleged the same as false. He pleaded that he has been falsely implicated due to enmity. Similar statements were made by the other accused acquitted by the trial court. No evidence in defence was adduced. After hearing the parties, the trial court found charge of offence punishable u/s 302 of I.P.C. read with Section 3(2)(v) of SCST (PA) Act, 1989, and the one punishable u/s 201 of I.P.C. proved against accused/Appellant Navin Chandra, only. As against the others charge was found not proved beyond reasonable doubt. Accordingly, they were acquitted. After hearing on sentence, convict Navin Chandra (present Appellant) was sentenced to imprisonment for life u/s 302 of I.P.C. read with Section 3(2)(v) of SCST (PA) Act, 1989, and rigorous imprisonment for a period of five years u/s 201 of I.P.C. Aggrieved by said judgment and order dated 30th of May 2001, passed by Sessions Judge, Pithoragarh, this appeal is preferred by the convict.
5. Before further discussion, we think it just and proper to mention the ante mortem injuries found by the team of doctors, who prepared autopsy report (Ext. A -5). Following are the ante mortem injuries found on dead body of Sher Ram, mentioned in the autopsy report, proved by P.W. 2 Dr. D.S. Nabiyal:
i) Incised wound over anterior aspect of neck in between the chin and trachea horizontally 6 X 2.5 cm, larynx cut through.
ii) Incised wound over 1 cm below from injury No. (i), anterior lateral aspect 4 X 2 cm, depth same as in injury No. (i).
iii) Incised wound over right side neck anterior lateral aspect 4.5 cm X 1 cm muscle deep.
iv) Incised wound over anterior and right aspect of face extending from below left eyelid, cutting left nasal ala upto right cheek. 14 cm in length, 1 cm wide bone deep.
v) Incised wound over lower lip 3.5 X 0.5 cm obliquely horizontal muscle deep.
vi) Incised wound over left side face extending from 1.5 cm away corner of left eye cutting ear pinna upto posterior and anterior area.
vii) Incised wound over left side neck extending from just above mandibular angle cutting each upto left side back of neck 13 X 1.5 cm muscle deep.
viii) Incised wound over left side back of skull, 2.5 cm X 1 cm muscle deep.
ix) Incised wound over scalp occipital region 5 X 1.5 cm bone deep.
x) Incised wound over right ear pinna cut through 4 cm in length muscle deep.
xi) Incised wound over right side back of neck, size 8 X 2 cm bone deep.
xii) Incised wound over scalp occipital region right side, 3 X 1 cm muscle deep.
xiii) Incised wound over scalp right parietal region obliquely, 4 X 1 cm bone deep.
xiv) Multiple abrasion over whole chest right side anterior and lateral aspect.
xv) Abraded contusion over right arm and forearm, posterior aspect.
xvi) Multiple abrasions over right elbow posterior aspect, area 4 X 3 cm whitish in colour (P.M. margin).
6. The team of doctors, as stated by P.W. 2 Dr. D.S. Nabiyal, opined in the autopsy report that deceased had died of shock and haemorrhage, as a result of ante mortem injuries, mentioned above. From the medical evidence on record it is clearly established that Sher Ram was murdered brutally. Now, we have to examine whether accused/Appellant Navin Chandra committed murder of Sher Ram, and threw his dead body in the soak pit of toilet of Government Inter College, from where the dead body is said to have been recovered on his pointing out, or not. We have also to see whether the provisions of SCST (PA) Act, 1989, are attracted to the present case, or not.
7. It is a case of circumstantial evidence. P.W. 1 Mohan Ram is nephew of Sher Ram (deceased). He has stated that his uncle Sher Ram was Post Master. He has further stated that Post Office was housed in the house of accused/Appellant Navin Chandra. The witness has further stated that he is a member of Scheduled Caste, and the accused are not the members of Scheduled Caste. P.W. 1 Mohan Ram further states that in February 1998, after he returned from Delhi, and went to the house of his uncle Sher Ram he was told by his aunt that Sher Ram has not returned from the Post Office, where he had gone a day before. According to this witness, thereafter a search was made, and on 15.02.1998, he gave first information report (Ext. A -1) to Patti Patwari of the area reporting that his uncle is missing and that he suspected that accused/Appellant Navin Chandra and his brother Chandra Shekhar might have committed murder of Sher Ram. P.W. 1 Mohan Ram has further stated that on the next day (16.02.1998) the Patwari (Investigating Officer) arrested Navin Chandra and interrogated him. The witness has further stated that thereafter on the very day (16.02.1998), on pointing out of accused Navin Chandra, dead body of Sher Ram was recovered from a soak pit of toilet of Government Inter College. The witness has proved recovery memo (Ext. A -2) relating to recovery of the dead body. This recovery memo is signed by the witnesses and the accused Navin Chandra. P.W. 1 Mohan Ram has further stated that after recovery of dead body, recovery of BADIYAT (heavy sharp edged weapon) used in the crime, was also made on pointing of accused/Appellant Navin Chandra from his house, in respect of which recovery memo (Ext. A -4) was prepared by the Investigating Officer in the presence of the witnesses and the accused.
8. P.W. 3 Heera Devi is widow of the deceased, who has stated that on 13.02.1998, her husband (Sher Ram) had gone to Post Office at 10:00 A.M., but never came back. The witness further states that usually her husband used to come by 04:00 P.M. When Sher Ram did not return home she got sent her nephew Pappu @ Basant Ram, who made search and told that Sher Ram is not in the Post Office. On the next day, her another nephew P.W. 1 Mohan Ram came back from Delhi, and he was also told that Sher Ram is missing. On this he (P.W. 1 Mohan Ram) made search and told that accused/Appellant Navin Chandra and his brother Chandra Shekhar have murdered Sher Ram and threw his dead body in a soak pit. P.W. 3 Heera Devi further told that her husband used to work in the Post Office which was housed in the house of accused/Appellant Navin Chandra.
9. P.W. 4 Mathura Prasad is another witness of recovery of dead body of Sher Ram on pointing out of accused/Appellant Navin Chandra, and also that of the recovery of ''BADIYAT'' used in the crime, on pointing out of accused/Appellant made on 16.02.1998. This witness has corroborated the statement made by P.W. 1 Mohan Ram and P.W. 6 Jagdish Chandra Pandey (Investigating Officer).
10. P.W. 5 Kaushalya Devi is wife of accused Chandra Shekhar (since acquitted). She is sister-in-law of the accused/Appellant Navin Chandra. This witness has stated in her examination-in-chief that she knew Sher Ram who used to work in the Post Office, which was housed in the house of Navin Chandra. She further states that Sher Ram was murdered in her house (i.e. house of Navin Chandra where she also used to live with her husband Chandra Shekhar). But, she states that she was not at the house on the day of incident, and had gone to her parental house. This witness was got declared hostile by the prosecution, as she did not corroborate the statement made by her u/s 164 of Code of Criminal Procedure before the Judicial Magistrate, Pithoragarh, on 04.03.1998, in which she told that she was molested on 12.02.1998 by Sher Ram, and accused Navin Chandra saw him molesting. She further told in her statement u/s 164 of Code of Criminal Procedure that Navin Chandra and Chandra Shekhar committed murder of Sher Ram. The reason that why this witness (P.W. 5 Kaushalya Devi) turned hostile is apparent from her statement, as she admits that she is living with her husband accused Chandra Shekhar when she made the statement before the trial court. Naturally, she wanted to save her husband Chandra Shekhar and accused/Appellant Navin Chandra, who is her brother-in-law. No appeal has been filed by the State challenging the acquittal of accused Chandra Shekhar recorded by the trial court. We are concerned only with the conviction recorded by the trial court against accused/Appellant Navin Chandra. It is pertinent to mention here that as against accused/Appellant Navin Chandra compared to the case as against his brother Chandra Shekhar, it is clear that there are two additional important circumstantial materials which are proved on the record, namely (i) recovery of the dead body on pointing out of the Appellant, and (ii) recovery of the weapon used in the crime on pointing out of Appellant Navin Chandra.
11. Having re-assessed the entire evidence on record, we find that following circumstantial evidence have emerged on the record, which is proved by the prosecution encircling the complicity of accused/Appellant Navin Chandra in commission of murder and causing disappearance of dead body of Sher Ram, who was a member of Scheduled Caste:
1) Admittedly, Sher Ram was a Post Master, and the Post Office was housed in the house of accused/Appellant Navin Chandra.
2) P.W. 3 Heera Devi, widow of the deceased, has proved that on 13.02.1998, Sher Ram had gone to the Post Office, but did not come back home.
3) P.W. 5 Kaushalya Devi, though turned hostile, but she has stated that Sher Ram was murdered in her house i.e. owned by Navin Chandra. She has further stated that accused/Appellant Navin Chandra was Postman.
4) P.W. 2 Dr. D.S. Nabiyal has stated that on postmortem examination as many as 16 injuries, including 13 incised wounds, were found on the dead body of deceased. He has further proved that the deceased might have suffered the injuries at about 03:00 P.M. on 13.02.1998. He has further stated that 13 incised wounds might have been caused by some object like BADIYAT (heavy sharp edged weapon).
5) P.W. 1 Mohan Ram and P.W. 4 Mathura Prasad have proved that P.W. 6 Jagdish Chandra Pandey on 16.02.1998, after arrest of Appellant Navin Chandra, on his pointing out recovered dead body of Sher Ram from a soak pit of toilet adjoining Government Inter College, and recovery memorandum (Ext. A -2) was prepared, which is signed by the accused/Appellant himself.
6) Above three witnesses, namely P.W. 1 Mohan Ram, P.W. 4 Mathura Prasad and P.W. 6 Jagdish Chandra Pandey have further proved that on pointing out of accused Navin Chandra, BADIYAT (heavy sharp edged weapon) used in the crime, was recovered from his house on the very day i.e. 16.02.1998, and recovery memorandum (Ext. A -4) was prepared which is also signed by the witnesses and the accused/Appellant Navin Chandra.
7) From the record and from the report dated 12th of October 1998, received from Forensic Science Laboratory, Agra (Ext. A -16), it appears that blood stained soil, blood stained ''BADIYAT'', blood stained clothes of the deceased were sent for chemical analysis, and all the items contained human blood. However, as to the blood stained ''BADIYAT'', it is mentioned that bloodstains in said weapon could not be classified, as the same were found disintegrated.
12. From the above chain of circumstances which appears complete, in our opinion, it is proved that accused/Appellant Navin Chandra committed murder of Sher Ram (a member of Scheduled Caste) and caused disappearance of his body by throwing the same in a soak pit of toilet of Government Inter College, Badave.
13. Learned Counsel for the Appellant argued that there is no independent witness of the recoveries said to have been made on pointing out of accused/Appellant Navin Chandra. We do not find much substance in the argument advanced on behalf of the Appellant for the reason that P.W. 4 Mathura Prasad is not close relative of the deceased. He is cousin of the deceased. Witness P.W. 1 Mohan Ram is nephew of the deceased. Normally, we see that public witnesses do not agree to be made witness of recoveries, as such, considering the natural circumstances of the case, in our opinion, the recoveries cannot be doubted merely for the reason as aforesaid two witnesses were related to the deceased.
14. It is also argued on behalf of the Appellant that P.W. 5 Kaushalya Devi who was a star witness has not supported the prosecution story, and as such, it cannot be said that the prosecution has successfully proved the charge of offence punishable u/s 302 of I.P.C. read with Section 3(2)(v) of SCST (PA) Act, and one punishable u/s 201 of I.P.C., beyond reasonable doubt against the Appellant. We have gone through her statement recorded by the trial court. Reason why she turned hostile is clear from her cross-examination. She is wife of co-accused Chandra Shekhar, who was facing the trial with his brother Navin Chandra (Appellant) before the trial court, as such, she would not have liked that her family members go to jail on the basis of her testimony. Even, without the testimony of P.W. 5 Kaushalya Devi, from the circumstances as enumerated above, we are of the view that the trial court has rightly found that charge as against the present accused/Appellant Navin Chandra stood proved on the record in respect of offence punishable u/s 302 of I.P.C. read with Section 3(2)(v) of SCST (PA) Act, and one punishable u/s 201 of I.P.C. The sentences awarded are also reasonable and just in the facts and circumstances of the case.
15. Therefore, this appeal has no force, and the same is liable to be dismissed. The appeal is dismissed. Accused/Appellant Navin Chandra is on bail. His bail is cancelled. He shall serve out the sentence awarded by the trial court. Let the record of this case along with copy of this judgment be sent to the trial court for compliance.
