SUPREME COURT OF INDIA

 

Har Singh

 

Vs.

 

State of Uttarakhand

 

Crl.A.No.816 of 2005

 

(Altamas Kabir and Markandey Katju JJ.)

 

18.09.2008

 

JUDGMENT 

 

Altamas Kabir, J.

 

1. These three appeals arise out of    the judgment and order dated 1st December, 2004, passed    by the Uttaranchal High Court dismissing the appeal     filed     by the appellants herein (Criminal Appeal No. 851/01) against the judgment and order of the Sessions Judge, Almora, in ST No.36 of 1987, convicting the appellants under Sections 302/34, 201/34 and 394 Indian Penal Code. One of the accused, Ratan Singh, died during the trial which abated against him and continued against the other accused persons.

 

2.   According to the prosecution, on 26th February, 1987, the deceased Bhupal Singh @ Joga Singh of village Sain Bagaria, District Almora,  Uttaranchal, went to the Mela held at    village    Dabra     on   the   occasion     of    Shiv Ratri along with his wife and two children.  He had taken an amount of Rs.3,000/- with him for purchasing two bullocks and a goat. While at the Mela, he met Gusain Singh and remained at the   Mela    with   his     wife   and children till 4.30 p.m. when he sent them back    to   their     village after     telling       them that    he     would    return on     the    next     day. Thereafter, Bhupal Singh    and     Gusain      Singh came    back    to     the    Mela    and     found    several persons, including the accused Mohan Singh, Har Singh, Ratan Singh and Lachham Singh, gambling in front of the tea stall of one Bhuwan Singh. Bhupal Singh also joined in the    gambling      and     won    Rs.200/-  from   Mohan Singh and Rs.600/- from Lachham Singh. When it started to get dark, Bhupal Singh stopped gambling as he had to go to Village Bhaisora with Gusain Singh.

 

3.   It was also the prosecution case that the above-named accused persons followed Bhupal Singh and asked him to continue the gambling so that they could have a chance to recover the    money    which they    had    lost.      In     the alternative,         they     asked        Bhupal    Singh     to return the money which he had won in the gambling in front of the tea stall of Bhuwan  Singh.    Bhupal      Singh      refused     to    listen   to either of the two proposals. Thereafter, accused Mohan Singh allegedly lifted Bhupal Singh    and     threw     him    on   the     ground     with force.    When Gusain Singh tried to intervene in an attempt to save Bhupal Singh, he was also threatened by the accused as a result whereof he ran away from the place. He has, however, come out in his evidence with the statement that while fleeing the place he had   hidden     in    a   nearby      wheat      field   from where he heard Bhupal Singh requesting the accused    not    to     kill    him   and     subsequently even the said sounds ceased. When Bhupal Singh did not return to his house even after the second day, his mother, Smt. Chana Devi and Shri Soor Singh came to Gusain Singh's house on the third day to enquire about him. Gusain Singh is reported to have told them about the entire incident and then all of them went to the place of occurrence, known as   Khuti     Aam,     to    search       for    the    body   of Bhupal       Singh,    but the    same    could    not    be found.       Thereafter, a written complaint was filed    by    Smt.     Chana       Devi    at    Bhatroajkhan Police Station on 2nd March, 1987.

 

4.   On     the     basis of the said complaint investigations were commenced and    Mohan Singh was arrested after interrogation. At Mohan Singh's instance Bhupal Singh's dead body was recovered in    the     presence of witnesses. The    other       accused    were     also arrested and the body of the deceased was sent for post-mortem, which was conducted by Dr. S.N. Srivastava, Medical Officer, Civil Hospital, Ranikhet, on 4th March, 1987. During the post mortem examination   the following injuries were found on the body of the deceased:

 

"1. Sharp cut wound on left side of face extending to lower jaw left. Mandible cut sharp, edge on bone seen, blood clots in an area 8 cm x 4 cm. Maggots were present.

 

2.   Sharp cut would on right side of forehead extending through temple and just above right ear 6 cm x 4 cm.   Blood clots present.   Sharp edge of temple bone and parietal bone seen. Maggots were present.

 

3.   Contusion and abrasion on the left side of chest, 4 cm below nipple, area 5 cm x 4 cm.

 

4.   Contusion on the left side of chest 2 cm medial to injury no.3, area 4 x 2 cm.

 

5.   Contusion and abrasion, just below right knee, area 4 cm x 3 cm.

 

6.   Contusion on the left wrist ventral surface, area 3 cm x 2 cm."

 

5. After   completion    of   the     investigation       a charge-sheet    was   filed      and   the   accused- appellants were sent for trial. 6. Relying on    the   evidence     of   PW   1,    Gusain Singh, who was accompanying the deceased at the time of the incident, the evidence of PW 5, Smt. Chana Devi, mother of the deceased, who lodged the First Information Report, the evidence of PW 2, Bhuwan Singh, before whose shop the gambling was conducted, Soor Singh, PW    6,     who    claimed    to     be   present when appellant-Mohan Singh stated that he could point out the place from where the body of the deceased could be recovered, and PW 9,  Kamrool Haq, who was present when the body of    the    deceased    was   recovered,  the  trial Court came    to   the   conclusion       that        the prosecution had been able to prove its case against the appellant beyond all reasonable doubt.

 

7. The    High    Court, on   a    reappraisal      of     the evidence, confirmed    the    decision of     the trial Court and upheld the conviction of the appellants herein.

 

8. On behalf of the appellants an attempt was made to convince this Court that from the materials on     record      there is   nothing    to connect the appellants with the commission of the offence.  Even Gusain Singh (PW 1), who was allegedly accompanying the deceased and    was    produced  as an    eye-witness, had clearly      stated    that  he    had    not   seen    the actual murder of the deceased but had only heard the shrieks of the deceased requesting the appellants not to kill him and that the said    shrieks finally ended. It     was, therefore, suggested that in the absence of any evidence to connect the appellants with the    commission       of    the offence, both    the Trial Court and the High Court had erred in convicting the appellants under Sections 302 and 201 read with Section 34 IPC and Section 394 IPC.

 

9. An attempt was also made to show that the evidence of PW 6, who was allegedly present both when Mohan Singh has stated before the Investing Officer that he could locate the body of the deceased and also when the body was   recovered,   did    not   indicate    that   the said body was recovered at the instance of accused Mohan Singh. Learned counsel tried to convince the Court that the accused had only been taken to the place of occurrence and that   during    the    search     which   was conducted, the body was recovered, but not at the specific instance of Mohan Singh. In other     words,   learned counsel    tried   to establish that the recovery of the body was not at the instance of Mohan Singh, but in his presence.

 

10. We are not convinced with the submissions advanced      on    behalf      of    the    appellants      who were     convicted       mainly        on    the    basis     of circumstantial evidence and the evidence of PWs 1, 2, 5, 6 and 9 in support thereof. It has been well established that the deceased and the accused were involved in gambling in front    of     the    tea     stall    of    PW   2,     Bhuwan Singh, and that when the deceased and PW 1, Gusain     Singh, left     the     place     where  the gambling was being conducted they were followed by the accused persons. From the evidence of PW 1, Gusain Singh, it is also established that the accused persons assaulted the deceased and when he tried to intervene he was threatened and was made to leave     the      place, though       he    heard     the deceased requesting the accused persons not to kill him from the nearby wheat field.

 

11.   The events upto the assault of the deceased were found to have been established by both the     Courts     below.  In     addition, the circumstances also establish the fact that the accused and the deceased were last seen together    by    PW    1   and    he    was    killed    soon thereafter.       The post-mortem report clearly indicates that the    body        had   started decomposing and that maggots were found on the body. It has to be kept in mind that while    the      date      of     occurrence is    26th February, 1987, the First Information Report was filed by PW 5, Smt. Chana Devi on 2nd March, 1987, the body of the deceased was recovered on 3rd March, 1987, and the post- mortem was conducted on 4th March, 1987. In other    words,    between        Bhupal   Singh's        death and the post-mortem conducted, almost a week had elapsed which fact stands corroborated from the state of the body at the time of post-mortem examination.

 

12. The    last    and,    in    our    view,    the   crucial circumstantial evidence was recovery of the body of the deceased. Although, an attempt was made to raise doubts as to whether PW 6 and PW 9 had actually seen the accused Mohan Singh pointing out the location from which the dead body could be and was subsequently  recovered, since both the courts below have accepted the said evidence and there were no other intervening circumstances, there is no reason for us to discard the same.

 

13. In    that    view    of    the    matter,   we    find   no    reason to interfere with the judgment of the  High Court and the Appeals are, therefore, dismissed.