CRJA/47/2013 of Anil Kumar Bhatt Vs State Of Uttarakhand

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Criminal Jail Appeal No. 47 of 2013

Anil Kumar Bhatt S/o Vasawanand R/o Rampur Sneh, P.S. Kotdwar District Pauri Garhwal

.....….Appellant

-Versus-

State of Uttarakhand

.......Respondents

Present:

Mr. Raveendra Singh Bisht, the learned counsel for the appellant. Mr. J.S. Virk, the learned Dy. Advocate General and Mr. Rakesh Kumar Joshi, the learned Brief Holder for the State.

Date of hearing and Judgement : 22.03.2022

Coram: Sri S.K. Mishra, ACJ.

Upon hearing the learned counsel for the parties, this Court made the following judgment: (Per: Sri S.K.Mishra, ACJ.)

This is case of uxoricide.

2. The appellant in this criminal appeal from jail has assailed his conviction under Section 302 of the Indian Penal Code, 1860, (hereinafter referred to as Penal Code for brevity) and sentence of imprisonment of life and fine of Rs. 25000/- under Section 302 of the Penal Code, in default to undergo additional one year imprisonment, recorded by the learned Sessions Judge, Pauri Garhwal in Sessions Trial No. 12 of 2005.

2. The case of the prosecution in nutshell is that on 05.12.2004 at about 11:05 p.m., the complainant Vaswanand, who happens to be father of the appellant-Anil Kumar Bhatt, lodged report before the Station House Officer, Kotdwar, to the effect that on 05.12.2004

has daughter-in-law Bharti Devi (deceased) after taking her usual food in the morning went to the forest to collect wood and grass. The appellant, along with his wife, also went to the forest for tending the cattle. When they did not return home till late evening, the complainant called his daughter Smt. Rajni in her village Lalpani. She told him that at about 5’ O clock, in the evening, the appellant has been towards the river after taking tea. Then the complainant along with his neighbours, namely, Soni, Krishnachand and others searched for his daughter-in-law in the forest but they could not any trace of her. During search Anil was found and was caught hold by the complainant with the help of Arjun Singh, Bhagwati Prasad and Bittu Prasad at about 9:50 p.m.. There was blood on his clothes. They suspected that the appellant seriously injured and murdered his wife. Therefore, he was kept in confinement by the witnesses. It is further stated by the complainant in the FIR that few days prior to the occurrence there was some dispute regarding the sharing of land between the appellant and the complainant but the deceased i.e. daughter-in-law of the informant has made Anil understand.

On such report, the SHO, Kotdwar P.S., registered crime no. 1839 of 2004 under Section 302 and 201 of the Penal Code and took up investigation. In course of investigation, he examined the complainant and other witnesses and initiate criminal investigation. He arrested the appellant. The appellant while in his custody revealed about concealment of the dead body of the deceased in the forest of village ‘Pundidhar’. Thereafter, the appellant led the investigating officer, other police officer and some of villagers to the spot where the dead body of the deceased was kept concealed inside the bushes and also gave recovery of sickle stained with blood.

Thereafter, the investigating officer held inquest over the dead body of the deceased in present of witnesses, despatched it by issuing command certificate etc., for post mortem examination. He also seized sample earth and blood stained earth from the spot, sent the material objects through the court to the State Forensic Science Laboratory, Agra, for chemical examination. Upon completion of investigation he placed charge sheet against the appellant under Section 302 and 201 of the Penal Code. The accused in this case took the plea of simple denial and false implication.

3. In order to prove its case, the prosecution examined nine witnesses, namely, PW1 Vaswanand, informant of the case, PW2 Bittu Prasa, villager who accompanied the informant. PW3 Dr. J.C. Dhyani, who conducted post mortem examination on the dead body of the deceased, PW4 Ram Singh, witness to the recovery of the dead body and sickle, but has not supported the case of the prosecution and was declared hostile, PW5 Surendra Singh, has stated about recovery of the dead body and sickle, he has also not supported the prosecution story, PW6 M.M.S. Bisht, Senior Inspector of Police, PW7 Arun Kumar Pandey, investigating officer of the case, PW8 Neelam Thapa, witness to the recovery and PW9 Bhagwati Prasad has not supported the case of the proseuction. In addition to examination of these witnesses, the prosecution has also relied upon the several exhibits and material objects.

4. The defence neither examined any witness nor led any document in defence in support of its case.

5. Mainly relying upon the circumstantial evidence available in this case, the learned Sessions Judge came to the conclusion that the prosecution proved its case beyond all reasonable doubts, and, therefore, proceeded to convict the appellant under Section 302 of the Penal Code and sentenced him as stated above. However, the learned Sessions Judge held that prosecution has not proved its case of concealment of evidence under Section 201 of the Penal Code and did not convict the appellant for that offence.

6. In assailing the conviction and sentence, the learned counsel for the appellant would argue that the circumstances in this case has not been established properly, and, therefore, the conviction should not be upheld by this Court. He would further argue that the prosecution has failed to establish any motive on the part of the appellant to commit the murder. He would further argue that the independent witnesses like the residents of the village have not supported the case of the prosecution regarding recovery of the dead body as well as the sickle on the pointing of the appellant. Hence, this aspect of the case should not be believed. He also challenged evidence of PW1, who happens to be father of the appellant on the ground that there was some dispute between the appellant and his father, and, therefore, the said witness might be stating falsehood in this case. He would further argue that independent witnesses like PW1 Vaswanand, PW2 Bittu Prasad Prasad PW4 Ram Singh, PW9 Bhagwati Prasad has stated that inquest report and panchnama regarding recovery of the dead body as well as weapon of offence were executed and signed at the police station but not at the spot. In that view of the matter he would argue that the conviction of the appellant under Section

302 of the Penal Code is erroneous and liable to be set aside.

7. Mr. J.S. Virk, the learned Dy. Advocate General for the State on the other hand would argue that in this case the prosecution has proved its case beyond reasonable doubt by establishing the homicide nature of the death of the deceased, the last seen of the appellant and deceased together by appellant’s father, recovery of the dead body of deceased and weapon of offence on pointing out of the accused admissible under Section 8 of the Indian Evidence Act, 1872 (hereinafter referred to as Evidence Act for brevity), finding of human blood on the sickle and the blood stained earth collected from the spot and the report of the Forensic Science Laboratory, Agra, and an inference regarding motive because of the dispute between the appellant and his father wherein the deceased tried to pacify the appellant by making him understand the situation. Thus, on such argument the learned Dy. Advocate General further pointed out that as far as last seen component of the evidence and recovery of the dead body, weapon of offence are concerned, the same is admitted by the appellant in his statement recorded under Section 313 of the Code of Criminal Procedure (hereinafter referred to as the Code), and, therefore, it is admissible in sub-section 4 of section 313 of the Code which only fortifies the case of the prosecution.

8. Having heard these arguments, we find that the prosecution has made an attempt to establish the following circumstances:

(i) Undisputed homicide nature of the death of the deceased;

(i)(a) The fatal injuries found on the dead body of the deceased were incised injuries and could have been caused by sharp cutting weapon like sickle; (ii) The last seen evidence of the appellant in the company of the deceased by PW1 who happens to be father of the deceased

(ii)(a) The admission made by the appellant in his statement recorded under Section 313 of the Code, especially, question nos. 3 and 4 that as per the prosecution evidence on 05.12.2004, both of them proceeded to the forest and till late night they did not come back. Such statement can be taken into consideration while recording finding of guilt of the appellant;

(iii) Recovery of the dead body of the deceased and weapon of offence on the pointing out of the accused in the presence of senior police officer as well as in the presence of lady constable and co-villagers;

(iii)(a) This aspect of the case was also put to the accused in question no. 10 in the sense that the court asked the appellant in his examination under Section 313 of the Code that the prosecution alleges that in the presence of witnesses you indicated the place where dead body was lying as well as the place where weapon of offence (njkarh) was lying and that appellant has admitted has done so;

(iv) The forensic report shows that the human blood was found on the sickle that was recovered from the spot on the indication of the appellant;

(iv)(a) Blood stained soil was collected from the spot, it was found to be stained with human blood on forensic examination. The sample earth and

blood stained earth were found to be same in texture.

9. Thus, it is apparent that the investigating officer objectively determined the spot of occurrence in this case. We are of the opinion that such being the materials led by the prosecution, it is the duty of this Court to re-assess the evidence to find out whether these circumstances has been established by the prosecution firmly and conclusively and whether they formed complete chain of events to prove the guilt of the appellant. It is now trite that in case relying only on circumstantial evidence, the prosecution must establish each and every circumstance conclusively and very firmly. Secondly, the circumstances so established by the prosecution must be consisted only with the hypothesis of the guilt of the accused and not consisted with his innocence. Most importantly all the circumstances taking together must form complete chain of events on pointing towards the guilt of the appellant and on such satisfaction of proof beyond reasonable doubt criminal court come to conclusion that the appellant or the convict has committed the offence alleged by the prosecution. Taking these circumstances one by one it is seen that the counsel for the appellant does not dispute the homicide nature of death of the deceased. Moreover, evidence of PW3 Dr. J.C. Dhyani has also stated very categorically that deceased has sustained five cut injuries on each different part of the body and according to Doctor the cause of death of the deceased was pre-death injuries and excessive bleeding. The time of death is stated to be one and half days prior to the post mortem examination .He has further opined that such injures can be caused by any sharp cutting weapon like sickle (njkarh). Thus,

circumstance no. (i) and (i)(a) are not disputed, therefore, taken to have been established conclusive in this case.

10. The second important aspect of this case is that the evidence of PW1 who stated in his examination that on the fateful day both the appellant and the deceased went to the forest for collection of wood , grass and also for tending the cattle. That evening when they did not return, he enquired from his daughter who informed that appellant has come to her house by 5:00 p.m. Though, extensively cross-examined by the defence, not single contradiction has been pointed out by it with respect to the evidence of PW1 before the court juxtaposed with the statement of the said witness recorded by the police under Section 161 of the Code. Therefore, we are of the opinion that even though there are some dispute regarding sharing of property between the appellant and the witness, father would rarely deposed falsehood against his own son even if there is some dispute between them. Hence, we are of the opinion that last seen theory has been conclusively established by PW1 in this case.

Moreover, most important thing in this case is that the appellant has answered question no. 3 and 4, put to him by the learned Sessions Judge under Section 313 of the Code, has admitted that he has in fact left the house towards forest with his wife, and till late night he did not come back. In this connection we take note of sub-section 4 of section 313 of the Code which is reproduced below:-

“313: Power to examine the accused:- X X X X X X X X X X X X

(4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed.”

11. Thus it is clear that any statement made by the accused in his examination under Section 313 of the Code, same can be acted upon by the court while coming to the conclusion regarding guilt or otherwise of the accused arraigned of an offence. In this case, we took into consideration the judgment of Hon’ble Apex Court rendered in Dharnidhar vs. State of Uttar Pradesh & others, (2010) 7 SCC 759, wherein the Hon’ble Supreme Court took into consideration the earlier judgment passed by it in the case of Narain Singh vs. State of Punjab, (1963) 3 SCR 678 and State of Maharashtra vs. Sukhdev Singh, (1992) 3 SCC 700, and held that the question whether the statement recorded under Section 313 of the Code can constitute sole basis of conviction and record finding that the answers given by the accused in response to his examination under Section 313 of the Code can be taken into consideration in such an inquiry or trial though such statement strictly is not evidence and has held as follows:-

“52. Even on the first principle we see no reason why the Court could not act on the admission or confession made by the accused in the course of the trial or in his statement recorded under Section 313 of the Code.”

It is thus well established in law that admission or confession of accused in the statement under Section 313 CrPC recorded in the course of trial can be acted upon and the Court can rely on these confessions to proceed to convict him."

12. The Hon’ble Supreme Court also quoted the case of Sukhdev Singh (supra) wherein the Supreme Court has held that even on first principle that there is no reason why the court could not act on the admission or confession made by the accused in course of the trial or in his statement recorded under Section 313 of the Code. Thus, the Hon’ble Supreme Court further held that it is also well established in law that admission or confession of the accused in the statement made under Section 313 of the Code recorded in course of trial can be acted upon and the court can rely on these confessions to proceed to convict him.

13. In this case also, the learned Sessions Judge has relied upon such materials available on record and we do not find any reason to come to different conclusion with that arrived at by the learned Sessions Judge.

14. The third important circumstance is recovery of dead body of the deceased and the weapon of offence on pointing out of the accused. We have carefully examined the evidence of the investigating officer. The learned counsel for the appellant took us into entire evidence of the investigating officer and we find that he has categorically stated that the accused led to the discovery of the dead body of the deceased from the Pundidhar forest. He has also stated that the accused also gave discovery of the weapon of offence i.e. sickle (njkarh) from that spot, therefore, this evidence of this witness is supported by two other police officers. It is true that the independent witnesses i.e. residents of village who were present at the time of the recovery of the witness have not supported the case of the prosecution. But at the same time the prosecution has, with the permission ofthe court, put leading questions to them and confronted their earlier statement under Section 161 of the Code, made before the investigation officer. We are, therefore, of the opinion that mere fact of the villagers did not support the case of the prosecution, as far as recovery of dead body of the deceased is concerned, the police officer cannot be disbelieved. It is also settled by plethora of judgment that in case the so called independent witness do not support the case of the prosecution which they have been confronted with the statement made under Section 161 of the Code, there is no law prohibiting the use of evidence led by the police officers especially, when it is not shown that the police officer has any grudge against the appellant. Moreover, this colonial mind set of seeking corroboration to each statement made by the police officer has to be done away with.

15. In that view of the matter, we hold that the prosecution has established that the appellant led the police to the place where dead body of the deceased and weapon of offence were concealed and he gave recovery of the same to the investigating officer. Such conduct of the appellant is relevant and admissible under Section 8 of the Evidence Act, which reads as follows:-

“8. Motive, preparation and previous or subsequent conduct.—Any fact is relevant which shows or constitutes motive or preparation for any fact in issue or relevant fact. The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in

issue or relevant fact, and whether it was previous or subsequent thereto.

Illustration: XXX XXX XXX

(e) is accused of crime. The facts that, either before or at the time of, or after the alleged crime, provided evidence which would tend to give to the facts of the case an appearance favourable to himself, or that he destroyed or concealed evidence, or prevented the presence or procured the absence of persons who might have been witnesses, or suborned persons to give false evidence respecting it, are relevant.

XXX XXX XXX”

16. Thus, it is clear that after alleged crime the appellant gave evidence i.e. dead body and blood stained sickle to the investigating officer which confirms the fact that he knew about the dead body lying there having sustained injuries and concealment of the weapon of offence. Such concealment of dead body and the weapon of offence is conduct which is influenced by the fact or the relevant fact in this case i.e. commission of the murder of the deceased. Hence, this conduct of the appellant is admissible under Section 8 of the Evidence Act. Moreover, he has admitted this fact in his examination under section 313 of the Code, vide, specific reference to question no. 10. The ratio that is applicable to the statement made by the appellant as far as the last seen theory is concerned, is also applicable to the present case and by virtue of sub-section 4 of section 313 of the Code. We take into consideration the statement made by the appellant before the learned Sessions Judge in respect of

question no. 10 which fortifies the case of the prosecution further.

17. The investigating officer after seizure of the material objects, forwarded the sickle and blood stained earth and sample earth along with other material objects to the State Forensic Science Laboratory, Agra, for serological and chemical examination. The serological and chemical examination in this case reveals that the sickle and the blood stained earth were found to be stained with human blood and that texture of the sample earth and blood stained earth were the same. Thus, it is clear that the weapon which was seized on the pointing out of the appellant was stained with human blood. Moreover, the blood stained that was found from the spot was stained with human blood, so it leads to the conclusion that the prosecution has established its case beyond reasonable doubt by also establishing objectively the spot of occurrence which happens to the Pundidhar forest.

18. The learned counsel for the appellant would argue that in this case the motive has not been established. However, we see from the evidence of PW1 that there was dispute between father and son, and in such dispute the deceased instead of supporting her husband i.e., appellant has tried to pacify him in his dispute with his father. So it cannot be stated conclusively that there is absolutely no evidence regarding the motive. Moreover, in criminal case motive is not only the determining criteria for holding person guilty or not guilty.

19. In this case we take notice of the observation of the Hon’ble Supreme Court in the case of Munish Mubar vs. State of Haryana, AIR 2013 SC 912, wherein the Hon’ble Supreme Court has examined the relevancy of motive and its importance in cases based on circumstantial evidence. At paragraph 22 the Hon’ble Supreme Court has held has follows:-

22. In case of circumstantial evidence, motive assumes great significance and importance, for the reason that the absence of motive would put the court on its guard and cause it to scrutinize each piece of evidence very closely in order to ensure that suspicion, emotion or conjecture do not take the place of proof. However, the evidence regarding existence of motive which operates in the mind of an assassin is very often, not within the reach of others. The said motive, may not even be known to the victim of the crime. The motive may be known to the assassin and no one else may know what gave birth to such evil thought, in the mind of the assassin. In case of circumstantial evidence, the evidence indicating the guilt of the accused becomes untrustworthy and unreliable, because most often it is only the perpetrator of the crime alone, who has knowledge of the circumstances that prompted him to adopt certain course of action, leading to the commission of the crime. Therefore, if the evidence on record suggest sufficient/necessary motive to commit crime, it may be conceived that the accused has committed the same. (See: Subedar Tewari v. State of U.P. & Ors., AIR 1989 SC 733; Suresh Chandra Bahri v. State of Bihar, AIR 1994 SC 2420; and Dr. Sunil Clifford Daniel v. State of Punjab, JT 2012(8) SC 639)

20. Thus, we are of the opinion that it is not case where the prosecution has totally failed to prove the motive rather there is some inferences regarding the motive on the part of the appellant to commit murder of his wife. Secondly, we have carefully examined the evidence available in this case, and we are of the opinion that even if it is held that there is no clear proof of motive on the part of the appellant then also the

other circumstances/evidences available on record together with the fact that the he admitted certain important aspect of the case to be true in his statement recorded under Section 313 of the Code, lead us to come to the conclusion that the prosecution has proved its case beyond all reasonable doubt.

21. Learned counsel for the appellant would argue that all this documents i.e. panchnama, inquest etc., has been prepared at police station as per the evidence of PW1, PW2, PW4 and PW9 and such suggestion has been given by the police officer that it has been prepared by the police officer which has been shoutly denied by the police officer. In criminal trial especially when the prosecution relied upon the witnesses who are rustic or semi literate witnesses, the cross examination is an unequal battle between the trained professional and simple man. In some cases, therefore, admission might have been made by some witnesses regarding preparation of the inquest report as well as panchnama in the police station. But that itself, in the absence of any material or any mention in the case diary or in statement of the police officer itself is not sufficient to hold that the inquest, panchnama were made in the police station. Moreover, out of these four witnesses PW4,5 and 9 have not supported the case of the prosecution and they have been declared hostile by the prosecution. Thus, it is also borne out from the record that the prosecution has confronted the entire statement made by the witnesses to the police under section 161 of the Code and discredited their evidence in their entirety. Hence, such admissions will

not shake the foundation of the prosecution case to come to the conclusion that prosecution has not been able to prove its case beyond all reasonable doubt. As far PW1 is concerned, it is apparent from the evidence that he has never been to the spot where the dead body was recovered but as he is complainant his signature might have been taken on the document either at his house or at the police station. That by itself will not shake the substratum of the prosecution case or make it suspect.

22. In that view of the matter we are of the opinion that the learned Sessions Judge has very clear and perpicacious view of evidence on record led by the prosecution and has come to proper conclusion that appellant is guilty of the offence under section 302 of the Penal Code and has correctly convicted and sentenced him to undergo imprisonment of life and to pay fine of Rs. 25000/- with default stipulation.

23. The appeal is without merit. It fails and hence dismissed. Judgment of conviction and sentence is hereby affirmed.

24. Let TCRs be sent back to the trial court for initiation of recommital proceedings forthwith.

(Ramesh Chandra Khulbe, J.)

(Sanjaya Kumar Mishra, ACJ.)