NAVEELL CHANDRA Vs. STATE OF UTTARANCHAL

JUDGEMENT

(1.) THIS judgment shall dispose of the criminal appeal No. 336 of 2003 along with criminal reference No.1 of 2003 and also the criminal appeal No. 59 of 2003. In criminal appeal No. 336 of 2003 the original accused No.3 Naveen Chandra is the appellant while his parents, namely, Smt. Kamla Devi and Nanda Ballabh, original accused No.2 & 1 respectively, are the appellants in criminal appeal No. 59 of 2003. Since, the original accused No.3 Naveen Chandra has been sentenced to death, a reference No. 1 of 2003 has been referred to us. With the consent of the parties, we have heard all the three matters together. Since, the facts and evidence are common in all the three matters and since all the three accused were tried in a single trial, all the three matters are being disposed of by this common judgment. For the purpose of this judgment, we shall be referring to the accused appellants by their original accused numbers in the Sessions Trial.

(2.) ALL the three accused came to be tried by the Sessions Judge, Bageshwar in Session Trial No. 30 of 2001, wherein all the three accused were charged for an offence under section 302 read with section 34 Indian Penal Code on the allegation that on 02 -06 -2001, these three accused persons, in furtherance of their common intention, had committed murder of Ganesh Dutt S/o Prem Balabh, Smt. Janki Devi W/o Ganesh Dutt and Sandeep S/o Ganesh Dutt. While the accused persons are the husband, wife and son, the deceased are also the husband, wife and son. Interestingly, original accused No.1 Nanda Ballabh is the real brother of the deceased Ganesh Dutt. Shortly stated, the prosecution case was that the relationships between the two brothers, namely, original accused No.1 Nanda Ballabh and the deceased Ganesh Dutt were strained on account of the family matters. They were all residents of the Village Baira Majhara, Tehsil Kapkot, District Bageshwar and their houses are almost adjoining to each other. On the fateful day i.e. on 02 -06 -2001, there was an altercation in between Nanda Ballabh & his family members on the one hand and Ganesh Dutt & his family members on the other hand during the day time in which, Ganesh received an injury to his head. It is then, the prosecution case that conciliation was to be arranged through a Panchayat at the instance of original accused No.1 Nanda Ballabh, who had sought the intervention of Bhupal Dutt (PW2) and others on the ground that his brother Ganesh Dutt was continuously troubling him and continuously hurling abuses. It seems that this was at TO Clock in the morning and thereafter, there was an altercation during the day time. Bhupal Dutt (PW2), therefore, went along with some others to the house of original accused No.1 Nanda Ballabh, where 7 or 8 other persons were already present. This was at about 5'0 clock in the evening. At the instance of original accused No.1 Nanda Ballabh, Ganesh Dutt was called by Bhupal Dutt (PW2), one Bishan Dutt and Govind Ballabh. They found that Ganesh Dutt already had an injury on his head, yet he came alongwith them to the Courtyard in between the houses of original accused No.1 Nanda Ballabh and the deceased Ganesh Dutt. On being asked as to what the dispute between the two brothers about, Ganesh Dutt allegedly lost his temper and started abusing the original accused No.1 Nanda Ballabh. Therefore, the persons, who were there, took him back to his house. However, Ganesh Dutt, again, came back and held the hand of his sister -in -law i.e. original accused No.2 Smt. Kamla Devi. After this, there was an altercation between original accused No. 1 Nanda Ballabh and Ganesh Dutt and they grappled with each other and Ganesh Dutt was knocked down by original accused No. 1 Nanda Ballabh. In the meantime, original accused No.3 Naveen Chandra rushed and injured Ganesh Dutt on his head by a weapon called "Khukri". The prosecution, further, alleged that Smt. Janki Devi W/o Ganesh Dutt, also came there praying to spare Ganesh Dutt, but she was also attacked by the original accused No.3 Naveen Chandra on her face and head. Though the persons, present, requested original accused No.3 Naveen Chandra to spare the others, he ran up to the house of Ganesh Dutt, where Ganesh Dutt's son Sandeep was standing and injured Sandeep also. The other son of Ganesh Dutt, namely, Manish Kumar (PW3) took to his heels while the other son Mukesh hid himself. Ganesh Dutt died on the spot while his wife Smt. Janki Devi and son Sandeep were seriously injured. The Gram Pradhan was called and the injured were kept in the Varanda of Ganesh Dutt's house, but they also died during the same night.

(3.) A report came to be made of this incident by Pooran Chandra (PW1), who was at the relevant time, the Up -Pradhan (Vice Chairman) of the Village. This report was prepared on 02 -06 -2001 and was handed over, in which it was suggested that the accused persons had committed the murder of three deceased persons on account of the old rivalry. On this, the usual investigation was started after the case was registered against the accused persons for offence under section 302 I.P.C. The Investigation Officer Rahim Ahmed (PW6), who was the Patwari, has the police powers and he proceeded to the spot and conducted the usual investigation by conducting Panchnamas as also by inspecting the spot. He also sent the dead bodies for post mortem. Eventually, the accused persons came to be arrested. The Investigating Officer Rahim Ahmed (PW6) also recorded the statements of number of witnesses including the eye -witnesses and the charge -sheet was filed against the accused persons.