BIR BAHADUR Vs. STATE OF H.P.

JUDGEMENT

(1.) The accused/appellants (hereafter referred to as the accused persons) have been convicted by the learned Sessions Judge, . Shimla for the commission of offences punishable under Sections 302,392 read ] with Section 34 of the Indian Penal Code and each one of them has been sentenced to undergo rigorous imprisonment for life and to pay fine of Rs. 1,000/ - and in default of payment of fine to undergo rigorous imprisonment for a further period of two years under Sections 302/34 of the Indian Penal Code and to undergo rigorous imprisonment for seven years and to pay fine of Rs.500/ - and in default of payment of fine to undergo further rigorous imprisonment for a period of one year under Sections 392/34 of the Indian Penal Code.

(2.) Being aggrieved, the accused persons have preferred the present jail appeal and Mr. Sanjeev Kuthiala was appointed as legal aid counsel for them on their request.

(3.) The case against the accused persons, in brief is as follows. .Lobi Devi (since deceased) was a resident of village khalwa in Tehsil Kotkhai. She had two sons, namely, Krishan Lal and Prem Chand (PW -1). Since the children of Krishan Lal and PW -1 are respectively studying in Chandigarh and Shimla, therefore, their wives were living along with their respective children. Said Krishan Lal and PW -1 also used to visit their families at Chandigarh and Shimla. Ratni Devi, sister of father of PW -1 and Krishan Lal, also used to reside in their house in village Khalwa. Said Ratni Devi at the material time was aged about 100 years and was hard of hearing and could not see and thus used to remain confined to bed. Krishan Lal and PW -1 had employed three Gorkhas, namely, Bir Bahadur (other than the accused) (PW -3), Jit Bahadur and Prem Bahadur who used to work for them on their land and in their orchard as and when their services were required and were paid for the work done by them on daily wage basis. They used to reside in a Dhara in the orchard at a distance of about 200 meters from the house of PW -1 and Krishan Lal. Thus, the aforesaid Gorkhas were not their permanent employees. They had, however, employed accused Bir Bahadur as a domestic help and he used to reside in a room in the ground floor of their house. Initially he was employed in October 1998. In December 1998 he went to Nepal and returned in February 1999 and restarted rendering domestic help to Krishan Lal and PW -1. When Bir Bahadur returned from Nepal in February 1999, he brought accused Nar Bahadur with him from Nepal. Nar Bahadur used to work as laborer for other villagers and occasionally for Krishan Lal and PW -1 also. He used to take his meals with Bir Bahadur (PW -3), Jit Bahadur and Prem Bahadur but in the night he used to sleep with accused Bir Bahadur in the house of Krishan Lal and PW -1. On 27.4.1999 PW -1 came to Shimla to stay with his wife and children for a few days. On 3.5.1999 Krishan Lal also left for Chandigarh. Thus, Lobi Devi and Ratni Devi remained in the village. In the evening they were joined by another woman also named Lobi Devi (since deceased). She was daughter of a brother of the father of PW -1 and Krishan Lal. Thus, on the night intervening 3rd/4th of May, 1999 the said three ladies were in the house. Accused Bir Bahadur was also there on account of his being a domestic servant and accused Nar Bahadur also was there to spend the night as usual. On the morning of 4.5.1999 Bir Bahadur (PW - 3) went to the house of Krishan Lal and PW -1 to bring buttermilk and shouted "Mata Ji Mata Ji" as he used to address Lobi Devi mother of Krishan Lal and PW -1 but there was no response. He went to the tap installed in the court -yard of the house where he washed his face, hands and feet and then went to the room in the ground floor where the two accused used to sleep. However, the accused were not found present there. Thereafter PW -3 wet to the upper floor of the house and again shouted "Mata Ji Mata Ji". When there was still no response he went inside the Verandah of the house and pushed the door of the kitchen room and through the opening, he saw a foot of Lobi Devi mother of Krishan Lal and PW -1. He thought that she might be sick, therefore, he went to the house of Sudhir Kumar (PW -2) a cousin of Krishan Lal and PW -1 and informed him of what he had seen. PW -2 then accompanied PW -3 to the house of Krishan Lal and PW -1 and both of them went inside the house and found the dead bodies of Lobi Devi, the mother, and Lobi Devi a cousin of Krishan Lal and PW -1. The necks of the dead bodies were found tied with pieces of cloth, i.e. Dupattas, Chunis, girdles and headgear. PW -2 then called Kanwar Singh (PW -4) brother of Lobi Devi, the cousin of Krishan Lal and PW -1. PW -4 telephonically called the police to the spot. PW -1 was also telephonically informed of the occurrence and he rushed to his village after telephonically informing his brother Krishan Lal at Chandigarh. On receipt of telephonic call from PW -4, ASI Sharif Mohmmad (PW -12) along with some other police officials proceeded to the spot. When he reached on the spot, statement of PW -2 under Section 154 of the Code of Criminal Procedure Ext. PE was recorded on the basis whereof formal Fir Ext. PJ was recorded at Police Station Kotkhai under Section 302 read with Section 34 of the Indian Penal Code. The inquest reports Ext .PB, Ext. PB/1, Ext. PH and Ext.PH/1 were prepared and the post mortem examination of the dead bodies was got conducted by calling Dr. Raj Kamal Chauhan (PW -9) to the spot. The post mortem reports prepared and issued by PW -9 are Ext. PM and Ext. PN. As per the opinion given by him, the cause of death in both the cases was strangulation. In the meanwhile PW -1 and Krishan Lal also reached the village. On checking they found that a number of golden and silver ornaments besides a gold coin and some silver coins and some other valuable items and currency notes were missing from one of the almirahs kept in a room of their house the lock whereof was found broken. The locks of a jfew other rooms were also found broken. The details of the property found missing were given by PW -1 and Krishan Lal to the police who were present on the spot in connection with the investigation of the case. Since the accused persons were found missing, therefore, five search parties, each consisting of police officials and local persons in a position to identify the accused, were sent out in search of the accused persons in different directions. One of such party, headed by ASI Balwant Singh (PW - i 1) and of which PW -3 was a member, was sent in the direction of Tiuni where they rached at about 10.00 a.m. on 5.5.1999 and started looking out for the accused at the bus stand and in the bazar. At about 5.00 p.m. a bus which came from Rohru side reached Tiuni and PW -3 spotted the accused persons alighting from that bus and accordingly informed PW -11. After alighting from the bus the accused persons proceeded towards Haridwar bound bus which was parked nearby. They were, however, over -powered and apprehend by the police officials before they could board the bus. The accused persons were found in possession of one cloth bag each. They were taken to a nearby hotel where the bags they were carrying, were searched in the presence of PW -3 and one Pvakesh sharrna. The bag which accused Bir Bahadur was carrying contained Chak, neckless with locket, Mangalsutra, three rings, a pair of ear -rings, a pair of ear tops, golden coin, three pairs of silver Kangans a pair of anklets, a broken brace -let (Kada) and a shawl. These ornaments were taken in possession by the police vide memo. Ext. PF. From the bag which accused Nar Bahadur was carrying, a camera, currency notes worth Rs.4Q4/ -20 silver coins of Rs. 1 each and a shawl and a Sweater were recovered which were taken in possession vide recovery memo. Ext. PG. A test identification parade of the aforesaid recovered articles was conducted by the Executive Magistrate, Kotkhai after about a month of the recovery. PW -1, Krishan Lal and one goldsmith identified the ornaments and other articles belonging to the two brothers in the course of .the test identification parade. During the course of investigation the photographs Exts. PA/1 to PA/10 were taken on the spot. Blood -stained wood pieces found on the floor near one of the dead bodies were taken in possession vide memo. Ext. P.C. One hammer and broken locks found on the spot were taken in possession vide memo. Ext. PD. On completion of the investigation and on being satisfied of the commission of offences by the accused, the officer -in -charge. Police Station, Kotkhai submitted a charge -sheet against the accused persons who came to be tried by the learned Sessions Judge, Shimla on a charge under Sections 449,302 and 392 read with Seciton 34 of the Indian Penal Code.