- (1.) PRAFULLA C. Pant, J. This appeal, preferred under Section 374 (2) of Code of Criminal Procedure, 1973 (herein-after for brevity referred as Cr. P. C.), is directed against the judgment and order dated 03-05-1988, passed in Sessions Trial No. 51 of 1987, whereby the then learned Sessions Judge, Almora has convicted appellant Rajendra Singh under Sections 302 and 201 of Indian Penal Code, 1860 (herein after referred as I. P. C.) and sentenced him to impris onment for life under Section 302 I. P. C. , and to five years rigorous imprisonment under Section 201 of I. P. C. By said judgment and order, appellant No. 2 Bishan Singh has been convicted under Section 201 read with Section 34 I. P. C. and sentenced to under go rigorous im prisonment for five years.
(2.) WE heard learned counsel for the parties and perused the entire record. Prosecution story, in brief, is that about /-8 years before the date of the incident, Rajendra Singh (appellant No. 1) resident of village Lweta (District Almora) was married to Smt. Kalawati (deceased), daughter of Maghan Singh (P. W. 2), resident of village Kotgarha. In December, 1986, Smt. Kalawati (wife of accused / appellant Rajendra Singh) had gone to her father's house along with her two years' old son. When she failed to come back to her husband's (accused / appellant Rajendra Singh) house on the expected date, the accused Rajendra Singh went to the house of his father-in-law and forcibly brought his two-year-old son with him. On the next day, Smt. Kalawati (deceased), weeping, also reached back to her husband's house. On 21-01-1987, Dan Singh (brother of the deceased) was told by the accused / appellant Rajendra Singh, at his shop in village Ramtola that Kalawati, has dis appeared and asked him to go to his house and inquire about her. On that very day, Pooran Singh, another brother of the deceased, when came to the house of accused Rajendra Singh (husband of deceased) with some gifts sent on the occasion of festival, he was told by mother-in-law of Smt. Kalawati (deceased) that she had already died. On 22-01-1987, when Maghan Singh (P. W. 2), father of the deceased, came and met accused / appellants Rajendra Singh and Bishan Singh they told him that Kalawati has died and her body was lying in the forest. On this, Maghan Singh (P. W. 2) went to the forest and saw the dead body of his daughter, hanging on a tree with one knee and other foot touching the ground, and her back was resting on a rock with a cord in her neck. On that very day i. e. 22-01-1987, Puran Singh (P. W. 1), Patwari of Parti Trinali, received an information at about 9:30 A. M. from Chandan Singh and one other person that the daughter-in-law of Bishan Singh (accused / appel lant No. 2) had committed suicide by hanging herself (In Uttaranchal hills, in rural areas, revenue officers are given police powers by the State ). On receiv ing the information, Sri Puran Singh, Patwari (P. W. 1) reached at the place of incident, where he found Gulab Singh, Gram Pradhan of village Lweta, Maghan Singh (P. W. 2), the accused / appellant No. 2 Bishan Singh, and Gram Pradhan Bhaisiyathana, were present near the dead body. P. W. 1 Pooran Singh, asked Gram Pradhan and accused Bishan Singh to give a report, but they refused to do so and told that if the inquest report is prepared and the dead body is permitted to be cremated with out autopsy, they would give the report, otherwise not. Thereupon, P. W. 1 Pooran Singh, went to the Narain Singh Mehta (P. W. 5),-Patwari of Parti Lingurta having jurisdiction of the circle. P. W. 1 Pooran Singh along with P. W. 5 Narain Singh Mehta, again came to the place of occurrence. P. W. 5 Patwari Narain Singh, prepared the inquest report (Ext. A-2) of the dead body. He took out cord (Ext. 1) from the neck of the dead body, sealed it and prepared its memo (Ext. A-3 ). He also took out the ornaments from the dead body and handed it to the husband (accused / appellant Rajendra Singh) of the deceased and list (Ext. A-4) of the same was prepared. Thereaf ter he prepared other necessary papers site plan (Ext. A-5), sample seal (Ext. A-6) and letter to Chief Medical Officer (Ext. A-7 ). The dead body was sent to Ranikhet for post mortem examination. P. W, 3 Dr. Rajesh Chandra Dimri con ducted autopsy on the dead body on 24-01- 1987, at about 2:00 P. M. It appears that on the basis of report of post mortem examination, (as asphyxia re sulting from strangulation, was found cause of death), the crime number was registered by the Patwari of Patti Lingurta. The Investigating Officer, on 20-02-1987, arrested accused / appel lants Rajendra Singh, his mother Parwati Devi, his father Bishan Singh and his sister-in-law Jiwanti Devi. On completion of the investigation, a charge sheet (Ext. A-9) was submitted by the Investigating Officer before the learned Magistrate. The Chief Judicial Magistrate, Almora on receipt of the charge sheet, after providing the necessary copies to the accused persons, committed the case to the Court of Sessions, Almora. Learned Sessions Judge, after hearing the prosecution and defence framed charge of the offence punishable under Sections 302 and 201 I. P. C. against ac cused Rajendra Singh. As against ac cused Bishan Singh, charge of the of fence punishable under Section 201 read with Section 34 I. P. C. was framed. Charge of offence punishable under Sec tions 302 / 34 and 201 / 34 I. PC. , were framed against the accused persons Smt. Parwati Devi and Jiwanti Devi. All the four accused pleaded not guilty and claimed to be tried. On this, prosecution got examined P. W. 1 Puran Singh, Patwari P. W. 2 Maghan Singh (father of the deceased), P. W. 3 Dr. R. C. Dimari, who conducted autopsy on the dead body, P. W. 4 Dungar Singh (declared hostile) and P. W. 5 Narain Singh Mehta, the Investigating Officer, who investi gated the crime and prepared the check report (Ext. A-4), memo (Ext. A-3) of the cord, list (Ext. A-4) of the orna ments, site plan (Ext. A-5), sample seal (Ext. A-6), letter (Ext. A-7) to the Chief Medical Officer and charge sheet (Ext. A-9 ). The oral as well as documentary evidence was put to the accused persons under Section 313 of Cr. PC. by the trial court in reply to which the accused persons alleged that the evidence ad duced against them is false they have wrongly implicated. No evidence in de fence is adduced by the accused persons. After hearing arguments of the prosecu tion and the defence, learned trial court found accused Rajendra Singh guilty of offence punishable under Section 302 I. P. C. and under Section 201 I. PC. , and after hearing on sentence, sentenced him to imprisonment for life under Section 302 I. P. C. and also to rigorous impris onment for five years under Section 201 I. P. C. The trial court further found ac cused Bishan Singh guilty of offence punishable under Section 201 I. P. C. and sentenced him to imprisonment for five years. However, accused Parwati Devi and Jiwanti Devi, were not found guilty of the charges framed against them, and both of them were acquitted of charge of offence punishable under Section 302 read with Section 34 I. P. C. and that of under Section 201 read with Section 34 I. P. C. Accused persons, Rajendra Singh and Bishan Singh, aggrieved by judg ment and order dated 03-05-1988, pre ferred this appeal before Allahabad High Court, in 1988, against their conviction and sentence awarded against them. The appeal is received by this Court under Section 35 of U. P Reorganisation Act, 2000, for its disposal. Meanwhile, appel lant Bishan Singh has died and the appeal filed by him, stands abated.
(3.) BEFORE further discussions, it is pertinent to mention here the ante mortem injuries found at the time of post mortem examination by P. W. 3 Dr. Rajesh Chandra Dimri, who prepared post mortem examination report (Ext. A-1) on 24-01-1987 at 2:00 RM. Follow ing ante mortem injuries were recorded by said Medical Officer on autopsy of the dead body of the deceased Smt. Kalawati : 1. Abrasion- 4. 5cm x 1. 5cm at chin just in front of ligature mark. 2. Ligature mark- well defined ligature mark encircling the neck horizontally and completely situ ated 4. 5cm above the episternal notch. Base of the mark was pale. Margins were red. Internal appearance of injury No. 2 :- Blood was extravassated into the subcutaneous tissues and the muscles of the neck. Muscles were lacerated. Right Cornua of the hyoid bone was fractured. 3. Abrasion- 2. 5cm x 1. 5 cm at the back of right ankle. 4. Abrasions at dorsum of left hand's fingers in an area between last and first phalanx. On internal examination, the Medi cal Officer found the brain congested and there were small blood clots also. The larynx and trachea were found con gested and frothy mucous was also present. Both the lungs were found con gested and blood clots were also found. On dissection, dark fluid blood was found. The sheath and carotid artery on both sides, were found to be lacerated and contained dark fluid/blood. The tis sues were found to be lacerated. In stomach, there was semi digested semi-solid food material. The uterus was found to be gravid and extending upto umbilicus. In the opinion of the Medi cal Officer, cause of death was asphyxia resulted from strangulation. There is no direct evidence or eye-witness account of commission of crime by the appellant Rajendra Singh, rather it is a case of circumstantial evi dence. As such, it is necessary to see whether the chain of circumstances has been established by the prosecution or not and, whether the chain of circum stances proved, makes out a case that it is only the appellant Rajendra Singh and he alone who has committed crime and none else. Circumstances against the appellant Rajendra Singh, proved on record, are as under : (1) Deceased Kalawati was wife of appellant Rajendra Singh. (This fact is also admitted by the ap pellant in his reply under Section 313 of Cr. P. C.) (2) A few days before the date of in cident when Kalawati failed to come back from the house of her father to the house of her hus band, appellant Rajendra Singh, went to his in-laws place and for cibly brought his two years old son, leaving his wife with her par ents. (This fact is also admitted by appellant Rajendra Singh in his reply under Section 313 of Cr. P. C. ). As such, it appears from the evidence on record that the appellant wanted to get rid of his wife. However, Kalawati, weep ing, came back, next day, from her parents' house to the house of her husband i. e. appellant. , (3) In the intervening night of 20th / 21st January, 1987, Kalawati was in the company and in the cus tody of her husband (appellant) in his village. (4) The post mortem examination (Ext. A-l), shows that Kalawati died due to asphyxia, as a result of strangulation, (i. e. homicidal death ). (5) Even after knowing that Kalawati has died homicidal death, her hus band (appellant Rajendra Singh), did not give any information to the revenue officer, having police powers of his Patwari area. (6) P. W. 1 Puran Singh Salal, Patwari of Trinali, has stated on oath, before the court that on informa tion of one Chandan Singh and another person, when he reached at the place where the dead body of Kalawati was found (on 22-01-1987) hanging (though her knee was touching the ground and back resting on a rock), appellant Rajendra Singh and his father Bishan Singh refused to lodge the report even after being asked by Patwari to do so. (7) According to both P. W. I Puran Singh, Patwari of Trinali and P. W. 5 Narain Singh Mehta, Patwari of Lingurta, not only appellants Rajendra Singh and his father Bishan Singh, refused to lodge the First Information Report but they insisted that they would give report in writing only if they are permitted to cremate the dead body without the post mortem ex amination. (This fact gets corroboration from the inquest re port Ext. A-2 ). (8) Inquest report (Ext. A-2 ). which contains the above fact that ac cused / appellant refused to give any written report of homicidal death of Kalawati and insisted on delivering the body to them after preparation of inquest report, for cremation (without post mortem examination), is signed by the ap pellant Rajendra Singh. This fact establishes the conduct of the ap pellant further indicating his in volvement in the commission of crime.;