- (1.) PRAFULLA C. Pant, J. This appeal, preferred under Section 374 (2) of the Code of Criminal Procedure, 1973 (hereinafter referred as Cr. PC.), is di rected against the judgment and order dated 08-04-1992, passed in Sessions Trial No. . 141 of 1988, by the then learned Special Judge/addl. Sessions Judge, Nainital, whereby appellants Diwan Singh and Bachuli Devi have been convicted under Section 302 of the In dian Penal Code, 1860 (hereinafter re ferred as I. PC.), and each one of them has been sentenced to imprisonment for life.
(2.) PROSECUTION story in brief is that the accused /appellants Diwan Singh, Bachuli Devi and their son Nar Singh are residents of Village Soopi, Patti Satbunga, District Nainital. Prem Singh (deceased) was also resident of the same village. He was real brother of appellant Diwan Singh. On 14-07-1986, at about 5:30 - 6:00 P. M. , Prem Singh returned to his home in the village after finishing his days work. Meanwhile, accused / ap pellant Diwan Singh and his wife appel lant Bachuli Devi also returned from the fields to their home in the village. Ap pellant Bachuli Devi accused sons of Prem Singh (deceased) that they had stolen wheat flour and potatoes from her house. Prem Singh objected to the allegations and they quarreled for a while. Thereafter, when Prem Singh en tered in his house, appellants Diwan Singh, Bachuli Devi and their son Nar Singh followed him in his house and alleged that he has become inimical to them. And, appellant Diwan Singh caught hold of head of Prem Singh and appellant Bachuli Devi administered poison to him by pouring contents of bottle of 'nuvan' (an insecticide) in his mouth. Meanwhile, their son Nar Singh kept the hands of Prem Singh held to gether. However, P. W. 2, Leela Devi, daughter of the deceased succeeded in snatching the empty bottle of poison from appellant Bachuli Devi. As soon as the accused persons left Prem Singh in his house, he told his wife P. W. 1, Parwati Devi that the accused persons have ad ministered poison to him. He requested his wife to take him to the doctor. Parwati Devi (P. W. 1) took Prem Singh with her and when they were on way to doctor, Prem Singh complained that he is now unable to walk further and sat on the way. He asked his wife to call the doctor. On this, P. W. 1, Parwati Devi went to look for doctor and told about the incident to one Pratap Singh/who asked her to call her 'chachia father-in-law. When P. W. 1, Parwati Devi returned after informing about the incident she found that Prem Singh had already died. Meanwhile, people started gathering around the place where Prem Singh had died. On the next day i. e. 15-07-1986, P. W. 1, Parwati got the First Information Report (Ext. A-l) written through P. W. 4, Harak Singh. And, submitted the same with Patti Patwari Satbunga (In Uttaranchal hills, in certain areas, Rev enue officers are given police powers by the State ). P. W. 6, Bachchi Singh, Patti Patwari, Satbunga, prepared the check report (Ext. A-8) on 15-07-1986 of the First Information Report (Ext. A-l) and registered the crime. He went to the spot on the very day and took the dead body in his possession. He prepared the in quest report (Ext. A-3), Police form No. 13 (Ext. A-4), photo sketch of the dead body (Ext. A-5), Police form No. 33 (Ext. A-6), which is a letter requesting the Chief Medical Officer for postmortem examination of dead body. P. W. 7, Dr. M. N. Dhondiyal, conducted the autopsy on the dead body on 16-07-1986 and prepared postmortem examination report (Ext. A-13 ). Meanwhile, Investigating Officer prepared site plan (Ext. A-ll) and, after recording statement of wit nesses and concluding the investigation, the Investigating Officer, P. W. 6, Bachchi Singh, submitted charge sheet (Ext. A-12) against the accused persons Diwan Singh, Bachuli Devi and their son Nar Singh. The concerned Magistrate after registering the charge sheet summoned the accused persons and after providing necessary copies, as required under Sec tion 207 of the Cr. RC. to the accused persons, committed the case to the court of Sessions for trial. The learned Ses sions Judge, after hearing the prosecu tion and the defence, framed charge of offence punishable under Section 302 of the I. P. C. against accused/appellant Bachuli Devi and similar charge was framed against accused/appellant Diwan Singh and Nar Singh. All the three ac cused/appellants pleaded not guilty and claimed to be tried. On this, prosecution got examined P. W. 1, Parwati Devi, in formant, eyewitness and wife of the de ceased; P. W. 2, Leela Devi, eye witness and daughter of the deceased; P. W. 3, Paan Singh, witness of the preparation of the inquest report; P. W. 4, Harak Singh, scribe of the EI. R. (Ext. A-1); P. W. 5, Tribhuwan Singh, Patti Patwari of neighbouring Patti Purvi Aagar, who assisted the Investigating Officer; P. W. 6, Bachchi Singh, the Investigating Officer and P. W. 7, Dr. M. N. Dhondiyal, who conducted the autopsy and prepared postmortem examination report (Ext. A-13 ). Apart from this the report of Foren sic Science Laboratory (Ext. A-14) re ceived from the Forensic Science Labo ratory on viscera preserved from the dead body was also placed on the record. The oral and documentary evi dence was put to the accused persons to which they replied that the evidence is wrong and they have been falsely implicated in the case. No evidence in defence given. The trial court, after hear ing the arguments of prosecution and that of the defence, found accused Diwan Singh and Bachuli Devi guilty of the charge of offence punishable under Section 302 of the I. P. C'. , and after hearing on sentence, sentenced each of them to imprisonment for life. However, the trial court did not find charge proved beyond reasonable doubt as against Nar Singh (son of the appellants ). Both the convicts have preferred this appeal before the Allahabad High Court in the year 1992 from where it is transferred in this Court under Section 35 of the U. P Reorganization Act, 2000, for its disposal.
(3.) WE heard learned counsel for the parties and perused the entire evidence on record. Before further discussion, it is pertinent to mention here, about the postmortem report and the report re ceived from the Forensic Science Labo ratory. Postmortem examination report (Ext. A-13), prepared by P. W. 7, Dr. M. N. Dhondiyal, shows that there was no ante mortem injury on the dead body. However, faecal matter was present at the anus and there was evi dence of blood in both the nostrils and buccal cavity. On internal examination, pleura was found congested, lungs were slightly congested. Right side of heart was full of blood but left was empty. Digested food and foul smelling gases were found present in the small intestine. However, as to the cause of death, ac cording to the Medical Officer, it could not be ascertained from the postmortem ex amination. As such, viscera was preserved and sealed. Ext. A-14 (report received from the Forensic Science Laboratory, Agra) shows that the viscera of the dead body was found containing insecticide in items from (i) stomach (ii) piece of intestine (iii) piece of liver (iv) piece of gall bladder (v) piece of kidney. However, no poison was found in piece of spleen. The above re port received from the Forensic Science Laboratory read with the statement of P. W. 6, Bachchi Singh (Investigating Officer), who has stated that the viscera in the sealed cover was sent to the Forensic Science Laboratory, Agra under orders of the Chief Judicial Magistrate, corrobo rates the prosecution story that Prem Singh has died homicidal due to the poi son.;