- (1.) PRAFULLA C. Pant, J. These appeals, preferred under Sec tion 374 of Code of Criminal Procedure, 1973 (hereinafter referred as Cr. P. C.), are directed against the judgment and order dated 28-02-2004, passed by learned Sessions Judge, Rudraprayag, in Sessions Trial No. 28 of 2003, whereby the accused / appellants- Ram Singh and Raj Kumar Kathaith are convicted un der Section 302 read with Section 34 of Indian Penal Code, 1860 (hereinafter re ferred as I. PC.), and each one of the convicts / appellants is sentenced to imprisonment for life.
(2.) HEARD learned counsel for the parties and perused the lower court record. It is a case of TRIPLE MURDER. Prosecution story in brief is that P. W. 1 Chandra Bahadur, a chowkidar in Irri gation Department on 25-08-2002, on his return from the duty to his residence, at 11:25 a. m. , found his wife Shanti Devi murdered and lying naked in a pool of blood. He lodged First Information Report (Ext. A-l) with Patwari Circle Rudraprayag, on 25-08-2002, stating that he was on night duty from 5:00 p. m. on the previous day till 10:00 a. m. en the next day. (In the interior area of Uttarakhand hills certain Revenue Offic ers are given police powers ). On reach ing to his quarter, at about 11:25 a. m. , he saw lock hanging on his door. On this, he went on the back side of his quarter and peeped from the window and saw that his wife Shanti Devi (one the deceased) was lying dead in a na ked condition. Suspecting her murder, report (Ext. A-1) was lodged. Nobody was named in the First Information Report. P. W. 7 Mahipal Singh Negi, Patwari with whom First Information "report was lodged, prepared check report (Ext. A-6 ). He proceeded to the spot and got opened quarter of P. W. 1 Chandra Bahadur. He also visited neighbouring quarter, where he saw and found that another chaukidar Gainu Lal and his wife Naurti Devi are also murdered and their dead bodies are lying in their room. ' P. W. 7 Mahipal Singh, who started the investigation, took all the three dead bodies in his possession and prepared in quest reports (Ext. A-2, Ext. A-3 and Ext. A-5) in-respect of the dead bodies of Gainu Lal, Naurti Devi and Shanti Devi respectively. The said Investigating Officer also prepared site plan (Ext. A-8 ). He collected blood stained soil from the quarter of Chandra Bahadur and prepared memorandum (Ext. A-12) and thereafter collected blood stained bed sheet from the house of Gainu Lal and prepared memorandum (Ext. A-13 ). Patwari also found one goggles (Ext. 1) from the house of deceased Gainu Lal and prepared memorandum (Ext. A-4 ). Dead bodies of Gainu Lal, Naurti Devi and Shanti Devi were sent for post mortem examination to District Hospi tal, Chamoli, where on 26-08-2002, autopsy was done by P. W. 10 Dr. Uttam Singh Mehta, who prepared post mortem examination reports (Ext. A-21, Ext. A-22 and Ext. A- 23) respectively. It appears that two days after investigation i. e. on 28-08-2002, the investigation was withdrawn from revenue officer and later, transferred to regular police. P. W. 9 Rishi Pal Singh, a police officer, took up further investigation. During investigation, name of accused/appellant Raj Kumar Kathaith, came to the light on in terrogation of P. W. 4 Smt. Kamla Devi. On further investigation, P. W. 2 Miranu Lal on interrogation, disclosed that ac cused/appellant Raj Kumar Kathaith, made extra judicial confession to him. On this, Raj Kumar Kathaith was ar rested on 15-10-2003. After his arrest, on his pointing out Khukri (Ext. 13), a sharp edged weapon, used in the crime was recovered by police from the gov ernment quarters near Fatehpur. A memorandum (Ext. A-17) of recovery was prepared by the police and site plan (Ext. A-18) of the place of recovery was also prepared. According to the prosecu tion, accused/appellant Raj Kumar Kathaith wanted to confess his guilt, as such, he was produced before Judicial Magistrate, P. W. 8 C. P Bijalwan, who recorded the confessional statement (Ext. A-15 ). In said statement, Raj Kumar Kathaith, disclosed that accused/ appellant Ram Singh was with him in commission of triple murder. At that point of time when the statement was recorded, accused/appellant Ram Singh was in jail in connection with another crime relating to offences punishable under Section 372,302,396. I. P. C. Pro duction warrant was issued and sent against Ram Singh in jail. He was taken into judicial custody in connection of this case also. On completion of investiga tion, police submitted charge sheet (Ext. A-20) against both the accused namely Raj Kumar Kathaith and Ram Singh for their trial in respect of offences punishable under Section 302 I. P. C. for commission of murder of Shanti Devi, Gainu Lal and Naurti Devi. The Judicial Magistrate, on re ceipt of charge sheet, after giving nec essary copies to the accused as required under Section 207 Cr. P. C. , committed case to the court of Sessions for trial. Learned Sessions Judge, Rudraprayag, on 29-11-2003, after hearing the parties, framed charge of offence punishable under Section 302 read with Section 34 I. P. C. against two accused Raj Kumar Kathaith alias Vikram Singh Kathaith and Ram Singh, for commission of murder of Shanti Devi, Gainu Lal and Naurti Devi, to which the two plead not guilty and claimed to be tried. this prosecution got examined P. W. 1 Chandra Bahadur (complainant), P. W. 2 Miranu Lal (before whom extra judicial confession is made by accused Raj Kumar), P. W. 3 Puran Lal (son of the deceased Gainu Lal and Naurti Devi), P. W. 4 Kamla (who identified the glasses of Raj Kumar and has thrown light on the motive of commission of crime and has stated that she saw Raj Kumar in a nervous condition soon after the inci dent), PW. 5 Chaitu Lal, (witness of in quest report and that of the recovery of goggles), P. W. 6 Bhagat Singh (witness of inquest report), P. W. 7 Mahipal Singh Negi (who started the investigation), PW. 8 C. R Bijalwan (who recorded the confessional statement of the accused Raj Kumar Kathaith), P. W. 9 Rishi Pal Singh (who completed the investigation), and P. W. 10 Dr. Uttam Singh Mehta (who conducted post mortem examina tion on the dead bodies of the three de ceased ). The oral and documentary evi dence was put to the accused under Section 313 Cr. P. C. to which they al leged to be false. However, no evidence in defence is given by the accused. Af ter hearing the parties, learned trial court found both the accused guilty of offence punishable under Section 302 read with Section 34 I. P. C. for commission of murder of Shanti Devi, Gainu Lal and Naurti Devi. After hearing on sentence, the trial court sentenced each of the convicts to imprisonment for life under Section 302 read with Section 34 I. P. C. Aggrieved by said judgment and order dated 28-02-2004, criminal appeal No. 97 of 2004, is filed by Ram Singh and criminal appeal No. 130 of 2004, is got sent from jail by accused/appellant Raj Kumar Kathaith.
(3.) BEFORE further discussions, it is pertinent to mention here the ante mortem injuries, found on the dead body of the deceased by FW. 10 Dr. Uttam Singh Mehta, who prepared post mortem examination reports Ext. A-21 (in respect of dead body of Gainu Lai), Ext. 22 (in respect of dead body of Naurti Devi) and ext. A-23 (in respect of dead body of deceased Shanti Devi ). Ante mortem injuries found on the dead body of Shanti Devi : 1. Incised wound 20cm x 2cm x brain deep over upper posterior part of head extending from left temporal region to right tempo ral region. 2. Incised wound 4cm x 0. 5cm x muscular deep just lateral to the left corner of left eye. 3. Incised wound 2cm x 0. 5cm x skin deep just below the middle of left eye brow. 4. Lacerated wound 5cm x 0. 5cm x skin deep over the back of left wrist joint. In the opinion of Medical Officer, cause of death was haemorrhage and shock as a result of ante mortem injuries. Ante mortem Injuries found on the person of Gainu Lal : 1. Incised wound 8cm x 1 cm x brain matter deep present over right temporal region through upper part of pinna of right ear. 2. Incised wound 3cm x 2cm x oral cavity deep present over upper part of right cheek. 3. Incised wound 7cm x 1. 5cm x oral cavity deep over right side of mandible. In the opinion of the Medical Of ficer, cause of death of the deceased was haemorrhage and shock as a result of ante mortem injuries. Ante mortem injuries found on the person of Naurti Devi : 1. Incised wound 8cm x 1 cm x brain matter deep present over upper and posterior part of left side of hear. 2. Incised wound 4cm x 0. 5cm x through and through over upper part of pinna of left ear. 3. Incised wound 4cm x 0. 5cm x through and through over lower part of pinna of left ear. 4. Incised wound 3cm x 2cm bone deep (with mandible fracture) over left corner of lower lips. In the opinion of the Medical Of ficer, cause of death was haemorrhage and shock as a result of ante mortem injuries. At the time of post mortem ex amination, dead bodies were found about 1 and 1/2 day old by the Medical Officer. The manner of commission of injuries and the other factors on record, clearly indicate that all the three de ceased are murdered sometime in the intervening night of 24-25-08-2002.;