Kailash Singh v. State of Uttranchal (Now State of Uttarakhand)

Judgment

#1. 2. 3. Ram Singh S/o Shri Shiv Singh Smt. Taruli Devi W/o Shri Ram Singh Smt. Prema Devi W/o Late Gopal Singh All R/o village Bantoli Patwari Kshetra Darshani District Almora 2 ............….Appellants Versus State of Uttranchal (Now State of Uttarakhand) …..................Respondent Ms. Jyoti Joshi, Advocate/Amicus Curiea, present for the appellants. Shri B.S. Parihar, Brief Holder, present for the State. Coram: Hon’ble Prafulla C. Pant, J. Hon'ble Servesh Kumar Gupta, J. Oral: Hon'ble Prafulla C.Pant, J. Both these appeals are directed against the judgment and order dated 02.05.2003, passed by Additional Sessions Judge/Fast Track Court, Almora, in Sessions Trial No. 28 of 1997, whereby said court has convicted the accused/appellant Kailash Singh under section 302, 201 I.P.C, read with section 34 of I.P.C., and sentenced him to imprisonment for life (under section 302 of I.P.C), and further imprisonment for a period of three years, and directed to pay fine of ` 1,000/- (under section 201/34 of I.P.C.).

The other three accused namely Ram Singh, Taruli Devi and Prema Devi have been convicted under section 201 read with section 34 of I.P.C., and each one of them has been 3 sentenced to undergo to rigorous imprisonment for a period of three years and directed to pay fine of ` 1,000/-. (2) Heard Amicus Curiae, present for the appellants, and learned Brief Holder, present for the State, and

perused the lower court record. (3) Prosecution story in brief is that, after the death of first wife of Gopal Singh (deceased), he got married to accused/appellant Prema Devi. The deceased had three children from the first wedlock. PW1 Sunita was one of them. The native villagers of the deceased and the accused/appellants were in district Bageshwar (earlier part of District Almora). On 05.02.1997, Gopal Singh (deceased) along with his wife Prema Devi and daughter PW1 Sunita had come to parental house of accused Prema Devi in Village Bantoli, within the limits of Patwari Circle Darshani. Prosecution case is that there were differences between Prema Devi and her husband (deceased), and the deceased was insisting for separation. On 22.02.1997, Gopal Singh was killed by accused/appellant Kailash Singh (brother of Prema Devi), and whereafter all the accused/appellants with common intention, in order to cause disappearance of the evidence buried dead body of Gopal Singh, under the heap of cow dung. When Gopal 4 Singh did not reach Kanpur, for many days, PW2 Harish Singh (brother of the deceased), and others started making search for him. When Harish Singh (PW2) came to know that Gopal Singh did not return after going to the parental house of Prema Devi, he lodged First Information Report (Ex-A1) on

14.03.1997, with Patti Patwari Darshani, suspecting that his brother (Gopal Singh) might have been killed and disposed of. (In Uttarakhand hills certain Revenue officials have police powers). On said report PW5 Shyam Datt Joshi, Patwari Darshani registered Crime No. 01 of 1997, relating to offence punishable under section 302 of I.P.C., against accused/appellant Ram Singh (father in law of the deceased), Taruli Devi (mother in law of the deceased), Prema Devi (widow of the deceased), Kailash Singh (brother in law of the deceased), Devendra Singh (another brother in law of the deceased), and one Amar Singh. On the next day i.e. 15.03.1997, on interrogation, the Investigating Officer, discovered the decomposed dead body of Gopal Singh, in a sack from the heap of the cow dung, on pointing out of accused/appellant Ram Singh. The inquest report ( Ex-A3) was prepared by the Investigating Officer, and dead body was sealed. The Investigating Officer, further prepared sketch of the dead body ( Ex-A8), sample seal ( Ex-A9) and other necessary papers, and got sent the dead body for post 5 mortem examination in a sealed condition. PW6 Dr. S.S. Pal of civil hospital, Bageshwar, conducted post mortem examination on the dead body on 16.03.1997, and prepared autopsy report (Ex-A17). Since the body was in a decomposed condition, he could not ascertain the cause of death of the deceased and got the viscera preserved. However, he did mention that there was a hole on the scalp of deceased. After completion of investigation, the Investigating Officer, submitted charge sheet (Ex-A16) against accused/appellants Ram Singh, Taruli Devi, Kailash Singh and Smt Prema Devi, for their trial in respect of offences punishable under section 302, 201 read with section 34 of I.P.C. (4) The Judicial Magistrate, Almora, on receipt of the charge sheet, after giving necessary copies to the accused appears to have committed the case to the court of Sessions for trial. Learned Sessions Judge, Almora, after hearing the parties on 01.08.1997, framed charge of offences punishable under section 302 read with section 34 and under section 201 I.P.C., against all the four accused namely Taruli Devi, Kailash Singh, Prema Devi and Ram Singh, who pleaded not guilty and claimed to be tried. (5) On this, prosecution got examined PW1 Ms. Sunita (minor daughter of the deceased), PW2 Harish 6 Singh (informant and brother of the deceased), PW3 Hansi Devi (sister in law of the deceased who was declared hostile), PW4 Bahadur Singh (declared hostile), PW5 Shyam Dutt Joshi (Investigating Officer), and PW6 Dr. S.S. Pal (who conducted post mortem examination). The oral and documentary evidence was put to the accused under section 313 Cr.P.C., in reply to which, they alleged that they have been falsely implicated and the evidence adduced by Sunita is false. In defence DW1 Ganga Dutt was examined on behalf of the accused. After hearing the parties, the trial court found only accused/appellant Kailash Singh guilty of charge of offence punishable under section 302 I.P.C., and convicted him accordingly. The other accused stood acquitted from said charge however, all the accused/appellants namely Kailash Singh, Prema Devi, Ram Singh and Taruli Devi were found guilty of charge of offence punishable under section 201/34 of I.P.C. After hearing on sentence, the trial court sentenced accused/appellant Kailash Singh to imprisonment for life under section 302, and rigorous imprisonment for a period of three years and directed to pay fine of ` 1,000/- under section 201 read with section 34 of I.P.C. Each of the other accused/appellants namely Ram Singh, Taruli Devi and Prema Devi were sentenced to rigorous imprisonment for a period of three years, and directed to pay fine of ` 1,000/- under 7 section 201/34 of I.P.C. Aggrieved by said judgment and order dated 02.05.2003, passed by the Additional Sessions Judge/Fast Track Court, Almora, in Sessions Trial No. 28 of 1997, these appeals are preferred by the convicts. (6) Before further discussion, we think it just and proper to mention that PW6 Dr. S.S.Pal, who conducted post mortem examination of dead body could not ascertain the cause of death. Said Medical Officer has stated that on scalp of the deceased there was a hole of size 3x2 cms. (7) The most important witness of the case is PW1 Sunita, a minor daughter of Gopal Singh (deceased). She stated before the court that it was 22nd of February, 1997, and time was 8.00 p.m. She had come in the village with her father Gopal Singh who used to work in Kanpur. She further stated that her father had come to his in laws house. She further stated that accused/appellant Ram Singh had gone to Machiya Bagad at about 7.00 p.m. Only accused/appellant Taruli Devi, Kailash Singh and Prema Devi were there with her father. According to this witness her father was insisting with the accused/appellants in connection with the return undertaking relating to separation between her father and mother (step mother). She (PW1) was in 8 the ground floor when accused Kailash Singh came out and slapped her father, whereafter accused Kailash Singh picked up an axe and gave blows on the head of the deceased. The witness further narrates that her father cried, and fell unconscious. Thereafter, she saw accused Prema Devi and Taruli Devi washing the blood on the floor of the court-yard. The witness has identified axe (Ex-A1) used in the crime at the instance of accused Kailash Singh. PW1 Sunita further states that it was moon lit night in the court-yard. The witness further states that thereafter she went asleep. The witness has told that she did not see anyone burying dead body of her father. PW1 Sunita (minor daughter of the deceased) lastly, stated in her examination that on the next day she asked her mother (step mother) as to the where abouts of her father who told her that he had left the village after the incident. This witness was subjected to lengthy cross examination, but nothing has come out in her cross examination which creates doubt in her testimony . In the cross examination she has explained that after death of her mother (natural mother), her father got re-married to accused Prema Devi. (8) PW2 Harish Singh informant is the brother of the deceased, who has stated that on 13.03.1997, he came to know about death of his elder brother Gopal Singh 9 (deceased). This information, he gathered from the other two children from the first wife of the deceased, who were still in Kanpur, and came to village Siroli, and told that there father did not return to Kanpur, since

05.02.1997. The witness has proved the First Information Report (Ex-A1) lodged by him with the Patwari of the area. The witness further proved the recovery memo (Ex-A2) relating to dead body and further proved inquest report (Ex-A3), prepared in his presence. In the cross examination, this witness admits that on suspicion, he named the accused that they had killed his brother. (9) Other two witnesses namely PW 3 Hansi Devi and PW4 Bahadur Singh have not supported the prosecution story, and declared hostile. Reason as to why, PW3 Hansi Devi has turned hostile is not difficult to be found out. She is sister of the accused Kailash Singh and Prema Devi and daughter of the other two accused. Naturally, she has preferred to save them from clutches of the Law. PW4 Bahadur Singh is resident of village Bantoli, and he has simply stated he did not hear, nor saw the accused quarreling with the deceased. This witness might not have seen as to what was happening in the court-yard of the accused/appellants in his village. Had it been a day time it could have been said that the others must have seen, what was happened in 10 the village. It was a time around 8.00 p.m when the incident is said to have occurred, as such, it is possible that this witness might not have seen the incident. But that by itself does not make the testimony of PW1 Sunita doubtful, who was living in the house with her father and step mother. Her presence at the place of incident appears to be natural. (10) On re-appreciation of entire evidence on record, we are of the view that the trial court has not erred in law in coming to the conclusion that charge of offences punishable under Section 302 and 201 read with Section 34 I.P.C., stood proved against the accused/appellant Kailash Singh. We further concurr with the trial court that charge of offence punishable under Section 201 read with Section 34 I.P.C. is fully proved against all the four accused. As far as, the sentence awarded by the trial court is concerned, considering the old age of 72 years (now it must be 80 years) of the accused/appellant Ram Singh , and the fact that other two accused Taruli Devi and Prema Devi sentencing each one of them to the period already undergone would meet the ends of justice. The three had under went few months to two years in jail during trial. The sentence awarded against accused/appellant Kailash Singh requires no interference. 11 (11) Accordingly, the Criminal Appeal No. 175 of 2003, is dismissed. The conviction and sentence recorded by the trial court, relating to offences punishable under Section 302/201 read with Section 34 I.P.C., against him is affirmed. Accused/appellant Kailash Singh is on bail. His bail is canceled. He shall surrender before the court concerned, and serve out the sentence awarded against him by the trial court. The Criminal Appeal No. 164 of 2003, is dismissed, so far as, same relates to the conviction of the accused/appellants Ram Singh, Taruli Devi and Prema Devi, and in respect of offence punishable under Section 201/34 I.P.C. However, the sentence awarded to each one of the said three appellants is modified to reduced to the period already undergone. Lower court record be sent back along with copy of this judgment for compliance of the same. (Servesh Kumar Gupta, J.) (Prafulla C. Pant, J.)

02.03.2012 N.P 12