SANJAY BIHARI ALIAS GURDEEN Vs. STATE OF UTTARANCHAL

JUDGEMENT

(1.) This appeal, preferred under Section 374 of Code of Criminal Procedure, 1973 (for short Code of Criminal Procedure), is directed against the judgment and order dated 27.03.2003 passed by Sessions Judge, Pithoragarh in Sessions Trial No. 44 of 2001, whereby accused/Appellant Sanjay Bihari @ Gurdeen and one Jagdish Prasad @ Mausiya (co-accused) have been convicted under Section 302 read with Section 34, under Section 376(2)(g), under Section 201, under Section 394 read with Section 34 and under Section 411 of Indian Penal Code, 1860 (for short I.P.C). Each one of them has been sentenced to imprisonment for life and directed to pay fine of 2,000/- under Section 302/34 I.P.C., rigorous imprisonment for a period of 10 years and directed to pay fine of 1,000/- under Section 376(2)(g) I.P.C., rigorous imprisonment for a period of 3 years and directed to pay fine of 1,000/- under Section 201 I.P.C., rigorous imprisonment for a period of 7 years and directed to pay fine of 500/- under Section 394/34 I.P.C., and rigorous imprisonment for a period of 2 years under Section 411 I.P.C.

(2.) Heard learned Counsel for the parties and perused the lower Court record.

(3.) It is a case of double murder. Prosecution story, in brief, is that Sunita (one of the deceased) was widow of one Late Prem Ram of village Boyal, Tehsil Gangolihat, District Pithoragarh. After death of her husband, she got amount of General Provident Fund and other sums of her husband, which were deposited, in her name, in the State Bank of India, Branch Gangolihat. It appears that she did not have cordial relation with her mother-in-law and she took her minor son Pawan (another deceased) to District Head Quarter Pithoragarh, for his studies. She (Sunita) started living in Lunthyura in Pithoragarh, as a tenant, in the house of P.W. 3 Kushal Singh (informant). In the same house, accused/Appellant Sanjay Bihari @ Gurdeen was also tenant, in another room. They had good acquaintance and accused/Appellant Sanjay Bihari @ Gurdeen used to go in Sunita's room. The young boy Pawan was aged 7-8 years, who used to go to school. Sunita was desirous to buy a house in Pithoragarh to settle her family permanently. She disclosed about it to accused/Appellant Sanjay Bihari @ Gurdeen, who got her in touch with co-accused Jagdish Prasad @ Mausiya. The two accused took her (Sunita) to Bin (in Pithoragarh) pretending to get the deal settled regarding purchase of house of P.W. 14 Khumman Lal, who wanted to sell his house. He (P.W. 14) wanted to sell his house for 1,50,000/- and Sunita agreed to pay 1,25,000/-, for the house. On 18.06.2001, Sunita went to Gangolihat in the morning with her nephew Suresh Ram (P.W. 15) and withdrew an amount of 1,25,000/-. She came back on the same day to Pithoragarh. Accused/Appellant Sanjay Bihari @ Gurdeen and co-accused Jagdish Prasad knew that Sunita had withdrawn the amount. Thereafter, on 19.06.2001 at 8:30 p.m. Sunita was last seen by Naveen Ram (P.W. 7) going with Jagdish Prasad and accused/Appellant Sanjay Bihari @ Gurdeen from Lunthyura. Before they were sent last, P.W. 9 Mohini Devi (wife of Kushal Singh-landlord) saw that at about 6:00 p.m. on 19.06.2001 accused/Appellant Sanjay Bihari @ Gurdeen and Sunita were in their rooms, but after sometime when she went to deliver milk to Sunita, who used to buy the same from her, she found that doors of both the tenants were locked. On 21.06.2001 at about 8:30 p.m. P.W. 4 Balbir Singh Mahar, Village Pradhan, received information that an unknown woman was lying unconscious in a hut in village Bin, near his house. He (P.W. 4) went at 6:30 a.m. on 22.06.2001 and found that the woman was lying dead in the hut adjoining the house of Khumman Lal. He informed about it at Police Station Kotwali, Pithoragarh. P.W. 13 A.S.I. Laxmi Dutt Bhatt made entry in the General Dairy about the information received, whereafter Sub Inspector Puran Chandra Pandey (P.W. 10), alongwith police force, went to the house of Khumman Lal and took dead body in his possession and prepared Inquest Report (Ext. A-7) and other necessary papers i.e. sketch of the dead body (Ext. A-12), Police Form No. 13 (Ext. A-13), letter to Chief Medical Officer (Ext. A-14) requesting for post mortem examination and Sample Seal (Ext. A-15). Post mortem examination was conducted by P.W. 5 Dr. Ramesh Chandra Punetha on 22.06.2001 at 3:15 p.m., who prepared Autopsy Report (Ext. A-9). The Medical Officer found that dead body was swollen, decomposition had started and maggots were present in the body. Though, he found that there was a DUPATTA tied around neck of the deceased, but there was no mark of injury around the neck. The Medical Officer could not opine cause of death, and viscera was preserved for analysis. Three days thereafter, on 25.06.2001, P.W. 3 Kushal Singh, landlord of Sunita, in Lunthyura, while going alongwith his wife towards cowshed, felt foul smell coming from the locked room of Sunita. On this, he (P.W. 3) and his wife (P.W. 9) called the neighbours, and suspecting something foul, they got the doors broken and entered in the house. When they went inside the house, dead body of Pawan (son of Sunita) was found in lying, in a decomposed position, on a bed. On this, P.W. 3 Kushal Singh gave a written First Information Report (Ext. A-2) at Police Station Kotwali, Pithoragarh at about 10:15 p.m. (22:15 hrs.) on 25.06.2001, on the basis of which crime No. 846 of 2001 was registered relating to offence punishable under Section 302 I.P.C. against unknown persons. Investigation was taken up by P.W. 16 In-charge Inspector Devendra Singh Negi, who went to the spot, with the necessary Police force and took dead body of the boy in his possession and got prepared Inquest Report (Ext. A-18), Sketch of dead body (Ext. A-19), Sample Seal (Ext. A-20), Police Form No. 13 (Ext. A-21) and letter to Chief Medical Officer (Ext. A-22). Post mortem examination on the dead body of Pawan, aged 7-8 years, was conducted by P.W. 6 Dr. P.C. Pant on 22.06.2001 at about 11:15 a.m., who prepared Autopsy Report (Ext. A-10). This body was also found in a decomposed condition and maggots were present. No external injury was found on the dead body. The Medical Officer (P.W. 6) could not ascertain cause of death of Pawan, and viscera was preserved for analysis. During investigation, accused/Appellant Sanjay Bihari @ Gurdeen, who was absconding from his house in Lunthyura, was arrested on 04.07.2001 at Tanakpur. Subsequently, co-accused Jagdish Prasad was also arrested on 28.07.2001 in Tanakpur. At the time of arrest, from accused/Appellant Sanjay 20,000/- were recovered, regarding which memo (Ext. A-28) was prepared by the Police. From the possession of co-accused Jagdish Prasad 7,200/- were recovered, regarding which memo (Ext. A-11) was prepared. After interrogating witnesses, inspecting spot, and collecting necessary material from the place of incident, the Investigation Officer submitted charge sheet (Ext. A-31) against accused Sanjay Bihari @ Gurdeen and Jagdish Thekedar @ Mausiya for their trial in respect of offences punishable under Section 302, 394, 376, 201 and 411 I.P.C.