Prafulla C. Pant, J. -
(1.) THIS appeal, received through Superintendent of District Jail, Dehradun, is directed against the judgment and order dated 09.07.2009, passed by learned Sessions Judge, Tehri Garhwal, in Sessions Trial No. 2 of 2008, whereby said court has convicted accused/appellant Munendra Singh @ Munna under section 392 read with section 397 IPC and under section 304 (part II) IPC. The convict has been sentenced to rigorous imprisonment for a period of seven years, and directed to pay fine of Rs. 5,000/ - under section 392 read with section 397 IPC. He has been further sentenced to rigorous imprisonment for a period of seven years and directed to pay fine of Rs. 2,000/ - under section 304 (Part II) IPC.
(2.) HEARD learned Amicus Curiae for the appellant, learned counsel for the State, and perused the lower court record. Prosecution story in brief is that Hari Kishan Singh (deceased) left his house in the morning with cash of Rs. 7,000/ - in his purse for Nakot market. He had to make purchase for marriage of his grand daughter. He did not return back by evening. After the night had set in, some children shouted that Hari Kishan Singh was lying in unconscious condition on the road. On this, P.W.7 Saraswati Devi (daughter -in -law of Hari Kishan Singh) proceeded alongwith villagers, and found that her father -in -law was lying in unconscious condition. She tried to know from him (Hari Kishan Singh) if he was assaulted he replied in affirmative by sign but he was unable to speak. His clothes were blood soaked. He had suffered injury on his head. Prosecution case is that villagers took Hari Kishan Singh (deceased) for his medical treatment to Rishikesh but on the way he succumbed to the injuries suffered by him. A first information report (Ex.A3) was got lodged by P.W.7 Saraswati Devi against unknown persons on the basis of which crime No. 5 of 2007 was registered with Patwari Kothi, District Tehri Garhwal. (In certain areas of Uttarakhand hills police powers are given to the revenue officials). P.W.14 Kripal Singh the then Patwari of Kothi started investigation of the case. The dead body of Hari Kishan Singh was sealed and inquest report (Ex. A1) was prepared by P.W.13 Head Constable Sidhi Lal Sah on 08.09.2007. The police further prepared sketch of dead body (Ex. A9), Police Form No. 13 (Ex. A6), letter to Chief Medical Officer (Ex. A7) requesting for post mortem examination and other necessary papers on record and sent the body for autopsy. P.W.11 Dr. Radhakrishan Lal Srivastava conducted post mortem examination on 08.09.2007, and prepared autopsy report (Ex. A5). He recorded as many as six ante mortem injuries, and opined that deceased (Hari Kishan Singh) had died as a result of syncope. The Investigating Officer interrogated the witnesses, and inspected the spot. During investigation accused Munendra Singh @ Munna, nephew of the deceased was found in possession of mobile phone belonging to the deceased. Accused Munendra Singh @ Munna was arrested on 19.09.2007. On completion of investigation charge sheet was filed against accused Munendra @ Munna for his trial in respect of offences punishable under section 302 and 397 IPC.
(3.) THE Chief Judicial Magistrate, Tehri Garhwal, on receipt of the charge sheet (Ex. A17), after giving necessary copies to the accused as required under section 207 Cr.P.C., appears to have committed the case to the court of sessions for trial. Learned Sessions Judge, Tehri Garhwal, after hearing the parties on 19.02.2008, framed charge of offences punishable under section 392 read with section 397 IPC and under section 302 IPC, against accused Munendra Singh @ Munna who pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W.1 Lokender Singh, P.W.2 Vikram Singh, P.W.3 Moor Singh, P.W.4 Smt. Laxmi, P.W.5 Safar Singh, P.W.6 Ramesh Chandra, P.W.7 Saraswati (informant), P.W.8 Shambhu Singh, P.W.9 Bachan Singh, P.W.10 Radha Krishan Suyal, P.W.11 Dr. RadhaKrishan Lal Srivastava (who conducted post mortem examination), P.W.12 Ravinder Kumar (witness of recovery of mobile phone), P.W.13 Head Constable Sidhi Lal (witness of inquest report) and P.W.14 Kripal Singh, Patwari (who investigated the crime). The oral and documentary evidence was put to the accused under section 313 Cr.P.C., in reply to which he admitted that deceased was his relative but as to the rest of the evidence he alleged that the same is false. No evidence in defence was adduced. The trial court, after hearing the parties found that prosecution has successfully proved charge of offence punishable under section 392 read with 397 IPC and under section 302 IPC. After hearing on sentence, the convict was sentenced to rigorous imprisonment for a period of seven years and directed to pay fine of Rs. 5,000/ - under section 392/397 IPC, and rigorous imprisonment for a period of seven years, and directed to pay fine of Rs. 2,000/ - under section 304 (Part II) IPC. Aggrieved by said judgment and order dated 09.07.2009, passed by learned Sessions Judge, Tehri Garhwal, in Sessions Trial No. 2 of 2008, this appeal is preferred by the convict which was got sent through Superintendent of District Jail, Dehradun.;