- (1.) PRAFULLA C. Pant, J. This appeal, preferred under Section 374 of Code of Criminal Procedure, 1973 (hereinafter referred as Cr. P. C.), is directed against the judgment and order dated 15-02-1991, passed by learned Sessions Judge, Pauri Garhwal, in Ses sions Trial No. 13 of 1989, whereby the accused/appellants- Sarojani Devi and Madhwanand, are convicted under Sec tion 302 read with Section 34 of Indian Penal Code, 1860 (hereinafter referred as I. PC.), for commission of murder of one Km. Kiran, and under Section 304 Part II read with Section 34 I. P. C. (as well as under Section 314/34 I. P. C.) for causing death of Smt. Manju and under Section 201 read with Section 34 I. P. C. for caus ing disappearance of their bodies from the place of incident. Each one of the convicts is sentenced to imprisonment for life under Section 302 read with Section 34 I. P. C. , to rigorous imprison ment for a period of ten years under Section 304 Part II read with Section 34 I. P. C. and rigorous imprisonment for a period of three years under Section 201 read with Section 34 I. P. C.
(2.) HEARD learned counsel for the parties and perused the lower court record. Prosecution story, in brief is that accused / appellant Madhwanand and Sarojani Devi are husband and wife, who were working as Ward Boy and Ward Ayah respectively in District Gov ernment Hospital, Pauri. The used to live in the Government quarter, allotted to them in the campus of the hospital. Smt. Manju (one of the deceased), wife of Dharmendra Singh (P. W. 15), had a pregnancy of five months. On 20-08-1988, she accompanied with her sister Km. Kiran (another deceased) went to the quarter of the accused / appellants for the purposes of termination of preg nancy of Smt. Manju. According to the prosecution, accused /appellants are not qualified to conduct the termination of five months pregnancy and yet they il legally tried to abort the foetus and con sequently, in the process Smt. Manju died. Thereafter to conceal their crime, they throttled Km. Kiran (sister of Manju) and committed her murder. It is alleged by the prosecution that thereaf ter the two accused / appellants threw the dead bodies in the night, down the road passing infront of their quarter. Complainant Narendra Singh Gussain (P. W. 8) brother of the deceased, lodged First Information Report on 21-08-1988 with police station Pauri, stating that on 20-08-1988, when he came back to his house from his office at 6. 00 p. m. he was told by his mother that Manju and Kiran, who had gone to hospital for some treatment had not returned back. On this, complainant made search for the two in both the hospitals (male and female) but he could not find his sisters on that day. On the next day in the morning, when he went in search of his sisters, he was told by minor daughter of accused. / appellants that Kiran along with another girl had come to their house on previous day but she (minor daughter of the accused / appellants) had gone thereafter to her village. There after complainant Narendra Singh Gussain, who was accompanied by his maternal uncle Jagdeep Singh Rawat (P. W. 16) and uncle Puran Singh, en quired from accused /appellant Sarojani Devi about the missing girls, who did not disclose about the whereabouts of the girls. Finally, the complainant along with his aforesaid two relatives found that infront of the staff quarters of the hos pital there was crowd. When they asked about what had happened, it was told that dead bodies of two girls are lying down the road. Complainant found that the dead bodies were of his sisters. Sus pecting commission of murder of the two, he lodged First Information Report (Ext. A-9) at 10:30 a. m. with the po lice station Pauri on the basis of which, check report (Ext. A-14) was prepared and necessary entry in the general diary at serial No. 16 was made, copy of which is Ext. A-15. Crime No. 42 of 1988, was registered under Section 302 I. P. C. against accused / appellant Sarojani. The crime was investigated by Chetan Swaroop (P. W. 17), Incharge Inspector of the Police, Station Pauri, who went to the spot and got prepared inquest report (Ext. A-3) of dead body of Smt. Manju and inquest report (Ext. A-4) of the dead body Km. Kiran. The police further got prepared sketch (Ext. A-20 and Ext. A-21) of the dead bodies. The dead bodies were sent for post mortem on the same day i. e. 21-08-1988. Autopsy was conducted on both the dead bodies by Dr. PC. Fularia (P. W. 1) and his two as sociates namely Dr. C. P. Dimri and Dr. R. K. Saxena, After post mortem exami nation the team of doctors prepared autopsy reports, Ext. A-l relating to the post mortem examination of dead body of Smt. Manju and Ext. A-2 relating to post mortem examination of dead body of Kiran. The cause of death of Manju could not be ascertained by team of doctors but as to death of Kiran, three doctors opined that she had died due to asphyxia as a result of strangulation. In vestigating Officer interrogated the wit nesses and prepared site plans (Ext. A-25 and Ext. A-26 ). After arrest of ac cused / appellants, Sarojani Devi and Madhwanand, the police requested Shri Gaya Prasad, Sub-Divisional Magistrate (PW. 13) to record the confessional state ment of the accused, who recorded the confessional statement of the accused / appellants Madhwanand and Sarojani Devi (Ext. A-ll and Ext. A-12 ). The police during investigation found hand kerchief (Ext. 1) of Kiran (deceased) from the house of the accused / appel lants and also recovered rope (Ext. 2) by which she was strangulated. An identi fication was conducted of the recovered handkerchief by Shri H. S. Chaturvedi, another Sub- Divisional Magistrate (P. W. 14 ). During investigation, the police recovered two scissors, two artery for ceps, one used drip set, one sealed drip set, one sealed packet of copper T, two bottles of liquid paraffin, two used in jections of phials of T. T. , two injections of cintosin etc. along with aforemen tioned handkerchief in the presence of Dr. Rajiv Hatwal and pharmacist K. S. Rawat (P. W. 3) and prepared memoran dum Ext. A-6. After completion of the investigation, charge sheet (Ext. A-27) was filed by the Investigating Officer against both the accused Sarojani Devi and Madhwanand for their trial in re spect of offences punishable under Sec tions 302 and 201 I. P. C. Chief Judicial Magistrate, on re ceipt of charge sheet after giving neces sary copies of the accused, as required under Section 207 Cr. P. C. , committed the case to the court of Sessions, for trial. Learned Sessions Judge after hear ing parties framed charge of offences punishable under Section 302 read with Section 34 I. P. C. for commission of murder of Smt. Manju and Smt. Kiran, and one punishable under Section 201 read with Section 34 I. P. C. to which the accused / appellants pleaded not guilty and claimed to be tried. On this, pros ecution got examined P. W. 1 Dr. P. C. Fuloria, who conducted post moriem ex amination along with other two doctors, P. W. 2 Sushil Chandra, witness of the in quest report, PW. 3 Kirath Singh Rawat, Pharmacist in whose presence injections and drip sets etc. recovered from the house of the appellants, PW. 4 Madan Lal Baluni, another Pharmacist, who has produced the attendance register of the hospital staff, PW. 5 Laxmi Devi (hostile witness), P. W. 6 Km. Hemanti (minor daughter of the accused / appel lants- hostile witness), P. W. 7 Dr. A. Saxena, who has told that accused / appellants Sarojani took oral leave at about 5:00 p. m. from him from the hos pital, P. W. 8 complainant Narendra Singh Gussain, brother of both the de ceased, P. W. 9 Lokmani Jakhmola, Pho tographer, P. W. 10 Sudhir Singh Gussain, who identified handkerchief of Kiran, recovered from the house of the accused / appellants, P. W. 11 Digvijay Singh Chauhan, witness of recovery of rope, P. W. 12 Virendra Singh (party hostile), P. W. 13 Gaya Prasad (Extra Mag istrate, who recorded 'extra judicial con fession', P. W. 14 H. S. Chaturvedi, Sub-Divisional Magistrate, who conducted identification proceedings of recovered handkerchief, P. W. 1 5 Dharmendra Singh, husband of the deceased- Manju, P. W. 16 Jagdeep Singh Rawat, maternal uncle of the deceased and P. W. I7 In spector Chetan Swaroop (Investigating Officer ). Oral and documentary evidence was put to the accused under Section 313 Cr. P. C. to which they alleged to be false. In defence, they got examined D. W. I Jagmohan Singh. After hearing the parties, the trial court found both the accused guilty of charge of offences punishable under Section 302 read with 34 I. P. C. (for commission of murder of Kiran) and one punishable under Section 304 Part II, read with Section L4 I. P. C. (along with offence under Section 314/ 34 I. P. C.) for causing death of Smt. Manju and also relating to offence un der Section 201 read with Section 34 I. P. C. for causing disappearance of dead bodies from the place of incident. After hearing on sentence, each of the con victs was sentenced to undergo impris onment for life under Section 302 read with 34 I. P. C. , rigorous imprisonment for a period of ten years under Section 304 read with Section 34 I. P. C. and rig orous imprisonment for a period of three years under Section 201 read with Sec tion 34 I. P. C. Both the accused /appel lants preferred appeal against judgment and order dated 15-02-1991 , passed by learned Sessions Judge, Pauri Garhwal in Sessions Trial No. 13 of 1989, on 19-2-1991 , before Allahabad High Court where it was admitted on 20-02-1991. This appeal is received by transfer un der Section 35 of U. P Reorganisation Act, 2000, for its disposal.
(3.) BEFORE further discussions, we think it just and proper to mention re garding what has been found in the post mortem examination report, which was conducted by team pf doctors-Dr. C. P. Dimri, Dr. R. K. Saxena and Dr. P. C. Fuloria. Ext. A-l is the post mortem ex amination report, proved by P. W. 1 Dr. PC. Fuloria, which relates to dead body of Smt. Manju. As per the report, the lady was 24 years old. The dead body was 1 and 1/2 day old. No ante mortem injuries were found on her dead body. The team of doctors could not ascertain the case of death. However, viscera was preserved. On internal examination of generating organs, the doctors found that on opening uterus, male foetus 24 cm in length, weight 380 grams with 5 hairs on scalp present, vernix, caseosa, present on the body. As to the condition of vagina, it is mentioned that vaginal orifis was found dilated. Blood present in the vagina. Rugocit present in vagi nal mucus. On opening uterus it is found containing intact membranes, amniotic fluid present. As far as post mortem examina tion of deceased Kiran (aged 22 years) is concerned, the same is recorded by the aforesaid team of doctors in Ext. A-2, which is also proved by PW. 1 Dr. P. C. Fuloria. Said report discloses following ante mortem injuries on the body of Kiran at the time of post mortem exami nation : 1. Ligature mark is situated below the thyroid cartilage horizontal and in circles, the neck com pletely reddish brown in colour dry and hard. Margins of ligature mark are abraded at various places. Size 2. 5 x 28 cm. On dis section sub-cutanious arcolar tis sue under ligature mark is ecchymosed. Few fibres of neck muscles under the ligature mark are ecchymosed. 2. Abrasion on the middle part of forehead 5cm above the bridge of nose O1cm x 0. 3cm, reddish brown in colour. 3. Linear oblique abrasion on right cheek 6cm x 0. 2cm reddish brown in colour, 2cm below the outer angle of right eye. 4. Abrasion on upper lip right side 1cm x 0. 8cm, 1 cm below nose. On internal examination, the team of Medical Officers found that tongue of the deceased was swollen. Pleura, lar ynx, lungs, Gaul bladder and spleen were found congested. Medical Officer opined that cause of death of Km. Kiran was asphyxia as a result of strangula tion.;