- (1.) PRAFULLA C. Pant, J. These appeals, preferred under Section 374 (2) of the Code of Criminal Proce dure, 1973 (hereinafter referred as Cr. P. C.) by the appellants Dharma @ Dharam Singh and Palla @ Pahalwan Singh, are directed against the judgment and order dated 28-02-1984, passed by the learned Sessions Judge, Nainital in Sessions Trial No. 89 of 1982, under Section 302, 364,201 of the Indian Pe nal Code, 1860 (hereinafter referred as I. RC), sentencing them to imprisonment for life, under each count.
(2.) AS both the appeals arise out against the same judgment and order, hence, are being decided by this com mon judgment. We have heard learned Amicus Curiae appearing on behalf of the ap pellants and the learned Government Advocate for the State and perused the entire record. Prosecution story, in brief, is that on 23-01-1982, at about 02:00 RM. , Kartar Singh (deceased) went to his field to see the crop of potato, in village Bhogapur Dam, Police Station Jaspur, District Nainital (now Udham Singh Nagar ). At about 04:00 RM. , accused along with Gurdeep Singh appeared there and abducted him by force and took him towards the jungle. This occur rence was seen by RW. 2 Nikunj Dass and RW. 4 Dayal Singh. Nikunj Dass in formed about this incident to PW. 1 Wazir Singh, son of the deceased, and Wazir Singh lodged the report (Ext. A-l) at Police Station, Jaspur, on the basis of which check report (Ext. A-13) was pre pared by Head Constable Sachidanand, who registered a case under Section 364 of the I. RC. An endorsement was made in the general diary, copy of extract of which is Ext. A-14.
(3.) AFTER the First Information Report was lodged, Sub Inspector B. S. Garbyal (RW. 7) started investigation in the mat ter. On 24-01-1982, the Investigating Officer visited the place of occurrence and prepared the site plan (Ext. A-7 ). On the same day, he got the informa tion that the accused were hiding in the jungle. On this information, more police force was called for the search of the accused but it could not succeed in ar resting them. On the very next day on receiving information about accused per sons, an encounter took place between the police and the miscreants including Gurdeep Singh at the Dera (abode) of Sardar Uttam Singh in which accused Gurdeep Singh and one Mana Singh were killed and Nagendra Singh, Station House Officer also got assassinated. On further information that the accused Dharma @ Dharam Singh and Palla @ Pahalwan Singh are staying with Bakar Singh in Rajasthan, RW. 7 Sub Inspec tor, B. S. Garbyal along with police party went to Rajasthan for their arrest. On 10-02-1982, at about 1:00 RM. , the house of Bakar Singh was surrounded by the police with the assistance of Hanumangarh police. Accused Palla @ Pahalwan Singh and Dharrna @ Dharam Singh tried to escape and in the proc ess opened fire at the police party with country made pistols. However, they were arrested and were brought to Po lice Station Hanumangarh, District Ganganagar, Rajasthan. The accused were made "baparda" (faces covered) before entering the territory of Uttar Pradesh and on 13-02-1982, at about 2:40 RM. , and were given in the custody at Police Station Jaspur. An entry in this regard was made in the general diary. During the interrogation in police custody accused Palla @ Pahalwan Singh and Dharma @ Dharam Singh Con fessed that on 23-01-1982, at about 4:00 PM. , they abducted Kartar Singh with intention to kill him and took him in the jungle, Gurdeep Singh opened two fires at him as a result of which he died and, thereafter, his body was burnt in the plantation of the jungle of village Bhogpur Dam, Police Station Jaspur. Therefore, on 14-02-1982, PW. 7 Sub Inspector, B. S. Garbyal along with other police personnel led by accused Palla @ Pahalwan Singh went to the plantation and at the instance of accused Palla @ Pahalwan Singh recovered some bones, burnt woods and ashes, material Exts. 1 to 5 and prepared recovery memos Ext A -2, A -3 and A -4, respectively. The Investigating Officer prepared inquest report (Ext. A-5 ). He also prepared site map (Ext. A -8} of the place from where the incriminating articles material Exts. 1 to 5 were recovered. The Investigat ing Officer prepared letter (Ext. A-10) addressed to the Medical Officer, Incharge, requesting for the postmortem of bones recovered. He also prepared sketch of the dead body (Ext. A -11), police form No. 13 (Ext. A -12), and sent the recovered bones to the Medical Officer for examination through Consta bles Naresh Pal and P. W. 6 Manwar Singh and P. W. 5 Dr. J. C. Arora, Medi cal Officer, Civil Hospital Rudrapur, ex amined the recovered bones, at 12:30 PM. , on 15-02-1982. Before that on 14-02-1982, the Investigating Officer depos ited the recovered article and given the custody of the accused at Police Station Jaspur and converted the case under Section 302 / 201 of the I. P. C. , against the accused and entry to this effect was made in the general diary, a copy of which is Ext. A-15. Further investigation of the case was conducted by P. W. 8 Station Officer, Ajai Pal Singh, who af ter completing the investigation, submit ted charge sheet (Ext. A - 18) against the accused persons, namely Palla @ Pahalwan Singh, Dharma @ Dharam Singh and Baja Singh @ Baaj Singh, to the Magistrate. The Magistrate concerned, on re ceipt of the charge sheet, registered the same and, after giving necessary copies to the accused persons, as required un der Section 207 of the Cr. P. C. , commit ted the case to the court of Sessions for trial. Learned Sessions Judge, after hear ing the prosecution and the defence, framed charge of offence punishable under Section 364, 302 and 201 of the I. P. C. against accused Palla @ Pahalwan Singh, Dharma @ Dharam Singh and Baja Singh @ Baaj Singh. All the accused persons pleaded not guilty and claimed to be tried. 7. The prosecution, in order to es tablish its case examined in all eight wit nesses viz. P. W. I Wazir Singh; P. W. 2 Nikunj Das; P. W. 3 Heera Singh; P. W. 4 Dayal Singh; P. W. 5 Dr. J. C. Arora; P. W. 6 Constable Manwar Singh; P. W. 7 Sub In spector B. S. Garbyal and P. W. 8 Ajai Pal Singh. The entire oral and documentary evidence was put to the accused persons under Section 313 of Cr. P. C. regarding which in their reply, the accused persons alleged the evidence adduced against them in false. Accused Palla @ Pahalwan Singh also denied the alleged recovery made by the Investigating Of ficer at his instance. The learned Ses sions Judge, after hearing the arguments of the prosecution and the defence found accused Palla @ Pahalwan Singh, Dharma @ Dharam Singh and Baja Singh @ Baaj Singh guilty of the of fence punishable under Section 364, 302 and 201 of the I. P. C. , and after hearing on sentence, sentenced each one of them to imprisonment for life under each count. All the sentences were to run concurrently. Aggrieved by the judg ment and order of the trial court, con vict/ appellant Dharma @ Dharam Singh filed appeal No. 2370 of 1985 (now numbered as Criminal Appeal No. 2103 of 2001) before the Allahabad High Court. Convict / appellant Palla @ Pahalwan Singh filed separate appeal No. 74 of 1997 (now numbered as Criminal Appeal No. 661 of 2001) be fore the Allahabad High Court. Both the appeals are received by transfer from Allahabad High Court to this Court under Section 35 of the U. P. Re organization Act, 2000, for their dis posal. 8. P. W. I Wazir Singh is the com plainant in this case. He is the son of deceased Kartar Singh. This witness deposed that on the day of incident, at about 4:00 P. M. , Nikunj Dass (P. W. 2) has informed him that the accused per sons abducted his father Kartar Singh and took him towards the jungle. The accused were also armed with guns. Thereafter, Kartar Singh did not return back. P. W. 1 Wazir Singh further deposed that 22 days before the incident, accused Palla @ Pahalwan Singh, Dharma @ Dharam Singh, Gurdeep, Jeet Singh and one Bagga had abducted his brother Beer Singh also in the jun gle on the pretext of hunting. His brother was not seen for some days, and, his father had lodged report against the accused and due to this fact they had enmity with his father. This witness says that he was also present at the spot when the bones and ashes of Kartar Singh were recovered in the plantation at the pointing out of appellant Palla @ Pahalwan Singh. 9. P. W. 2 Nikunj Dass is the witness of fact that Kartar Singh was last seen with accused persons. According to him, on the day of the incident, at about 4:00 P. M. , he was present in his field grazing his goats and he saw that ap pellants / accused along with Gurdeep were taking Kartar Singh beating and dragging towards the jungle. He also alleged that the accused were armed with guns. Thereafter, the deceased was not seen. He is also witness of recovery and he has identified his signatures on the recovery memos. PW. 4 Dayal Singh is also witness of fact, who has last seen deceased Kartar Singh with appellants. He has supported the version of P. W. 2 Nikunj Dass and stated that the accused were beating Kartar Singh and they had dragged him towards the jungle. These two witnesses have proved that fact that appellants along with Gurdeep Singh abducted Kartar Singh with intention to commit his murder and thereby commit ted the offence punishable under Sec tion 364 of the I. P. C. 10. P. W. 3 Heera Singh is the wit ness of the recovery of bones and ashes of the deceased. He had accompanied the police party to the plantation where the appellant Palla @ Pahalwan Singh had confessed his guilt and had handed over the bones, burnt woods and ashes to the Investigating Officer. This witness has deposed that the Investigating Of ficer had prepared memos Ext. A -2, A -3 and A -4, respectively, on the spot. 11. PW. 5 J. C. Arora had examined the bones of the deceased Kartar Singh in the Civil Hospital, Rudrapur on 15-02-1982, at about 12:30 P. M. and had prepared examination report (Ext. A-6 ). According to this witness the bones were of an adult human. There was no injury on any bone except burn marks. No opinion regarding cause of death could be given by the Medical Officer and the time of death also could not be ascer tained. P. W. 6 Constable Manwar Singh has deposed that he along with Naresh Pal had handed over the bones in sealed condition to the Medical Officer on 15-02-1982. 12. P. W. 7 Sub Inspector B. S. Garbyal had initially investigated the case and narrated about the steps taken by him during the investigation. He is also witness of encounter in which ac cused Gurdeep Singh and Station House Officer Nagendra Singh were killed. This witness recovered bones and ashes at the instance of appellant Palla Singh @ Pahalwan Singh. P. W. 8 Station Officer Ajai Pal Singh is the Investigating Of ficer, who completed investigation of the case. He has submitted charge sheet against the accused persons after com pletion of the investigation. 13. After going through the evidence of PW. 2 Nikunj Dass and PW. 4 Dayal Singh, who are the natural and trustwor thy witnesses of abduction of Kartar Singh, we are. of the view that the charge of abduction against the appellants Dharma @ Dharam Singh and Palla @ Pahalwan Singh are proved beyond all reasonable doubt, the oral evidence of PW. 7 Sub Inspector B. S. Garbyal, who was member of the police party who participated in the encounter with the miscreants in which Station House Of ficer Nagendra Singh, who led the party was assassinated, has proved that on 10-02-1982 they could lay hands on the appellants Palla @ Pahalwan Singh and Dharma @ Dharam Singh. His evidence as to the recovery of the bones and ashes of abducted Kartar Singh on the pointing out of appellant Palla @ Pahalwan Singh is credible and cannot be disbelieved. The statement of this witness is corroborated by oral evidence of PW. 3 Heera Singh and the recovery memos Ext. A -2, A -3 and A -4, which proves the fact that Gurdeep Singh and the appellants after abducting Kartar Singh with common intention killed him-and burnt his body to make the evidence of the crime disappear. As such, the charge of offence punishable under Sec tion 302 / 34, 3647 34 and 201 / 34 of the I. P. C. against the appellants, is proved on the record. P. W. 1 Wazir Singh, son of Kartar Singh, has also corrobo rated the statement of P. W. 7 Sub In spector B. S. Garbyal on the point of re covery of bones and ashes of Kartar Singh, which were recovered at the pointing out of accused / appellant Palla @ Pahalwan Singh. This witness has also stated that the appellants used to harbour enmity with his family. 14. On behalf of the appellants it is argued that the postmortem report throws no light as to the identity of the deceased. In the present facts and cir cumstances of the case, said fact by it self is not sufficient to doubt the pros ecution story, when the appellants have been successful in burning the dead body of the person abducted and murdered. The statement of P. W. 5 Dr. J. C. Arora read with postmortem examination re port (Ext. A -6) does corroborate pros ecution story to the extent that the bones were of an adult human being. 15. Mr. T. S. Phartiyal, learned Amicus Curiae on behalf of the appel lant Dharma @ Dharam Singh argued that the witnesses Nikunj Dass and Dayal Singh did not raise any alarm when Kartar Singh was allegedly taken by the appellants, as such the prosecution story narrated by the prosecution witnesses, appears to be doubtful. Had the appellants not being alleged to be armed with deadly weapons, the witnesses could have dared to shout for help. Apart from this, these witnesses are not the family members of the decease and it is quite natural that they would not dare to en danger their lives at such moment. They fulfilled their duty by informing the fact of abduction, immediately after the in cident, to Wazir Singh son of Kartar Singh. 16. Lastly, it is argued that the In vestigating Officer should have sent the bones and ashes for the chemical exami nation. We have examined the evidence from that angle also. Statement of P. W. 8 Station Officer Ajai Pal Singh shows that the recovered articles were also sent for chemical examination, as such, it cannot be said that the prosecution made attempts to falsely implicate the appellants by collecting bones of some one else. 17. For the reasons as discussed above, the order of conviction passed by the trial court deserves to be upheld and modified under Section 302, 364 and 201 to the extent that each of the ap pellant Dharma @ Dharam Singh and Palla @ Pahalwan Singh Shall stand convicted under Section 302 read with Section 34 of I. P. C. , under Section 364 read with Section 34 of I. P. C. and un der Section 201 read with Section 34 of I. P. C. Since, in the charge framed against them all details of the said of fences are given, hence, no prejudice is caused to the appellants by modifying the conviction as above. As far as sen tence passed by the learned Sessions Judge is concerned, both the appeals deserve to be allowed partily only to the extent of sentence of imprisonment for life under Section 201 of I. P. C. the maximum sentence under said Section is seven years rigorous imprisonment and not imprisonment for life. Accordingly, sentence of each of the appellant is re duced to seven years rigorous imprison ment under Section 201/34 of I. P. C. However, sentence passed under Section 302 and one under Section 364 of I. P. C. passed by the trial court is maintained only with the modification that it shall stand to have been passed under Sec tion 302/34 of I. P. C. and under Section 364/34 of I. P. C. With the above obser vation, both the appeals stand disposed of. The trial court shall take the appel lants to custody to make them serve out remaining part of unserved sentence. .;