Prafulla C. Pant, J. - (1.) THIS appeal, preferred under section 374 of Code of Criminal Procedure, 1974 (herein after re ferred as Cr.P.C.), is directed against the judgment and order dated 18.7.1994, passed by learned Sessions Judge, Chamoli, in Sessions Trial No. 4 of 1992, whereby accused/appellant Chintamani, has been convicted under sections 302 and 201 of Indian Penal Code, 1860 (herein after re ferred as I.P.C.). He is sentenced to un dergo imprisonment for life under section 302/34 I.P.C. and no separate punishment is awarded under section 201 I.P.C.
(2.) HEARD learned Counsel for the parties and perused the Lower Court rec ord. Prosecution story in brief is that Bhawan Singh (deceased) was husband of complainant Smt. Kamla Devi (P.W. 1). He (deceased) had undertaken some work of construction of contract in the house of one Hari Ram. One Man Bahadur (a Nepali citizen) used to help in his work. Everyday, the deceased used to come back to his house in Village Kimani, Patwari area Deorada, Tehsil Tharali, District Chamoli. On 16.8.1991, he neither came for lunch nor did he return in the night. At about 10:00 p.m., Man Bahadur, a helper of the de ceased came and told complainant that a quarrel is going on between Bhawan Singh (deceased) and Chintamani (accused). On this, Kamla Devi (complainant) after light ing cheela (dried peel of pines, which is generally used by the villagers as a source of light where there is no electricity or kerosene available), along with Man Ba hadur, proceeded in search of the de ceased. However, on the way, it started raining and cheela got extinguished. The two lost their way and got separated. Due to darkness, it was difficult to search. In the circumstances, P.W. 1 Kamla Devi returned back to her house and could not sleep. On the next day i.e. 17.8.1991, again complain ant went towards gorge where the quarrel was said to had taken place. When she was going there, she heard talking one Jai Dutt and Man Mohan, on the way that there had been quarrel between the complainant's husband and Chintamani on the previous day. When the complainant could not find her husband in the gorge, she went to Harisha Devi (wife of appellant-Chintamani) and inquired about her hus band but to no avail. On this, she went to village of her parents and informed her father that her husband is missing. Thereafter, father of complainant joined her in searching her husband. On 20.8.1991, Bakhtawar Singh (P.W. 2), father of complainant, gave a report to Patwari Deorada, regarding the fact that deceased Bhawan Singh is not traceable. Meanwhile when search was going on, complainant and her father saw some suspicious circumstances on the field of Chintamani where newly 36 plants of paddy were implanted by digging the field and flies were swarming there. They immediately informed the Patwari, and a report was lodged by the complain ant against the accused- Chintamani, her wife Harisha Devi and Girish Chandra re lating to offences punishable under sec tions 302 and 201 I.P.C. (In the interior hills of Uttarakhand Revenue Officials are given police powers under U.P. Government No tification No. 494/VHI-418-16, dated 7.3.1916). The Patwari recorded her oral report as First Information Report (Ext. A-1). The Patwari in the presence of Bakhta- v war Singh (P.W. 2), Soban Singh and others dug out field of Chintamani and recovered the dead body of Bhawan Singh, which was kept in a 'Hold-all'. The Patwari after taking dead body into possession prepared inquest report (Ext. A-10), sketch of the dead body (Ext. A-11), letter to Chief Medi cal Officer (Ext. A-12), and other necessary papers and sent the dead body of Bhawan Singh for post-mortem examination. Meanwhile, he interrogated the witnesses. P.W. 4 Dr. Vinod Kumar Dhaundiyal, Medical Officer of District Gopeshwar, conducted post-mortem examination on 22.8.1991, and recorded the ante-mortem injuries. He prepared autopsy report (Ext. A-5) and opined that cause of death of the deceased was shock and haemorrhage as a result of ante-mortem injuries. During in vestigation, P.W. 5 Govind Prasad Arya, Patwari (Investigating Officer) recovered blood stained clothes and Khukri (sharp edged weapon, used in the crime) from the house of accused Chintamani on September 16, 1991, and prepared a report (Ext. A-4). The blood stained articles (blood stained pants, blood stained underwear and Khu kri) were sent for chemical examination, where it was found that the same contained human blood. After completing the investigation, the Investigating Officer submit ted charge-sheet (Ext. A-15) against ac cused Chintamani (present appellant), Girish Chandra and Smt. Harisha Devi, for their trial in respect of offences punishable under sections 302, 201 and 120-B I.P.C. The Magistrate, on receipt of charge-sheet, after giving necessary copies to the accused, as required under section 207 Cr.P.C. appears to have committed the case to the Court of Sessions for trial. Learned Sessions Judge, Chamoli, after hearing the parties on 29.3.1993, framed charge of offences punishable under sec tion 302 read with section 34 I.P..C. and one punishable under section 201 read with section 34 I.P.C. against all the three ac-cused-Chintamani (present appellant), Girish Chandra and Hasisha Devi. All the three pleaded not guilty and claimed to be tried. On this prosecution got examined, SW. 1 Kamla Devi (complainant), P.W. 2 Bakhtawar Singh (father-in-law of the de ceased), P.W. 3 Devi Prasad Raruri (Village Pradhan), P.W. 4 Dr. Vinod Kumar Dhaundiyal (who conducted post-mortem examination) and P.W. 5 Govind Prasad Arya, Patwari (Investigating Officer). The oral and documentary evidence, and ma terial exhibits were put to the accused un der section 313 Cr.P.C. in reply to which they alleged the same to be false. However, no evidence in defence, was adduced. The Trial Court after hearing the parties found accused/appellant Chintamani, guilty of charge of offence punishable under sec tions 302/34 and 201 I.P.C. The other two accused were acquitted of the charge framed against them. After hearing on sentence, convict Chintamani, was sen tenced to imprisonment for life. No sepa rate punishment was awarded under sec tion 201 I.P.C. Aggrieved by said judgment and order dated 18.7.1994, passed by Ses sions Judge, Chamoli, in Sessions Trial No. 4 of 1992, this appeal was filed before Alla habad High Court on 22.7.1994, where it was admitted on 25.7.1994. The appeal is received by this Court under section 35 of U.P. Reorganisation Act, 2000 (Central Act No. 29 of 2000), for its disposal.
(3.) BEFORE further discussions, we think it just and proper to mention here the ante-mortem injuries, recorded by P.W. 4 Dr. Vinod Kumar Dhaundiyal, in the autopsy report (Ext. A-5), after post-mor tem examination: - 1. In left upper limb there was no flesh at all. Only bones humerus, medius visible. 2. On left side of neck, there was no flesh. Bones were visible. 3. Left side of face-all muscles were lacerated. 4. Left side of chest, there was no flesh and bones visible. According to the Medical Officer, at the time of post-mortem examination, the dead body was in a decomposed condition and about one week old. On internal examina tion, the Medical Officer found punctured ribs No. 3, 4, 5, 6, 7 and 8 on the left side. There was laceration under fracture in pleura and left lung. P.W. 4 Dr. Vinod Ku mar Dhaundiyal, opined in his report (Ext. A-5) that cause of death of the deceased was due to shock and haemorrhage, as a result of ante-mortem injuries. From the evidence adduced by P.W. 4 Dr. Vinod Kumar Dhaundiyal, read with the autopsy report (Ext. A-5) it is established on record that Bhawan Singh died homicidal death. Now, this Court has to see if the prosecution has successfully proved that Bhawan Singh was murdered by accused Chintamani and his dead body was con cealed by him, as found by the Trial Court. It is pertinent to mention here that it is a case of circumstantial evidence. P.W. 1 Kamla Devi, widow of the deceased, has stated that her husband Bhawan Singh (deceased) had undertaken a work on con tract in the house of Hari Ram. Everyday, he used to go there. According to this wit ness, on 16.8.1991, her husband neither came for lunch nor returned in the evening. She waited for her husband till 9:00 p.m. where after one Man Bahadur, a Nepali (a helper, who used to work with Bhawan Singh) came and told her that a quarrel was going on between Bhawan Singh and ac-cused-Chintamani, in a gorge of Village Kimani. On this, P.W. 1 Kamla Devi, lighted 'Cheela' (dried peels of pines, used by the villagers for light where there is no electricity or kerosene) and gave it to Man Bahadur and she also took a torch with her. However, while the two were on their way towards gorge, it started raining and 'Cheela' got extinguished and there was all darkness. Apart from this, Man Bahadur, got separated from the complainant and she came back to her house and could not sleep. The witness further narrates that on 17.8.1991, she again went in search of her husband towards gorge and heard one Jai Dutt saying to one Bisan Dutt and Madan Mohan that last night Chintamani and Bhawan Singh had a quarrel in Kimani gorge. On this, she (P.W. 1) went to the house of Chintamani and inquired about her husband. Harish Devi (wife of accused Chintamani) told her that last night had she (Harisha Devi) not gone to gorge for help of her husband, Bhawan Singh would have killed Chintamani. Since the witness could not trace her husband, on next day, she went to the village of her father Bakhtawar Singh and informed him that her husband is missing. Thereafter, she was joined in the search of her husband by her father Bakhtawar Singh (P.W. 2). On 20.8.1991, they noticed that some flies were swarming and some newly planted paddy in the field of Chintamani on which they got suspi cious and a report (Ext. A-2) was given to Patwari. She proved First Information Re port (Ext. A-1), recorded by Patwari on the basis of her statement. P.W. 1 Kamla Devi, has further stated that Patwari came to Chintamani's field and dug out the dead body of Bhawan Singh.;