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2013 DIGILAW 190 (UTT)

Dablu Singh Alias Dampi v. State of Uttarakhand

2013-04-08

PRAFULLA C.PANT, SERVESH KUMAR GUPTA

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JUDGMENT Prafulla C. Pant, J. This appeal, preferred under section 374 of the Code of Criminal Procedure, 1973 (for short Cr PC), is directed against the judgment and order dated 21.10.2011/22.10.2011, passed by the Additional Sessions Judge/FTC, Kashipur, District Udham Singh Nagar in Sessions Trial No. 204/2004 and Sessions Trial No. 204A/2007, whereby the said Court has convicted the accused appellants Dablu Singh alias Dampi and Michel Masih for the offences under Section 302 read with Section 34, IPC and sentenced each one of them to imprisonment for life and directed to pay fine of Rs.5,000/- each. Accused appellants have been further convicted for the offence punishable under Section 411, IPC and each one of them has been sentenced to undergo rigorous imprisonment for a period of two years on that count. Accused appellants have also been convicted for the offence punishable under Section 404, IPC and each one of them has been sentenced to undergo rigorous imprisonment for a period of two years and directed to pay fine of Rs.100/- each. 2. Heard learned Counsel for the parties and also perused the lower court record. 3. Prosecution story, in brief, is that Rajendra Prasad Agarwal (deceased) used to run a workshop relating to electronic goods in Kashipur, and lived on the first floor of that building. On 15.2.2004 at about 9.40 a.m., one Jakir telephonically informed PW1 Keshav Chandra Agarwal (brother of the deceased) that Rajendra Prasad Agarwal was not opening the door. On receiving the said information, PW1 Keshav Chandra Agarwal and other relatives went to the spot and broke open the door. He found that Rajendra Prasad Agarwal was lying in a pool of blood. He (PW1) gave First Information Report (Ex. A-1) at PS Kashipur on the very day (15.2.2004) at about 10.50 a.m. regarding murder of his brother. On the basis of said report, Crime No. 133/2004, relating to offence punishable under Section 302, IPC, was registered against unknown persons. PW4 SSI Suresh Chandra Joshi took up the investigation. A police party reached at the spot, where photographs were taken and after sealing the dead body of the deceased, inquest report (Ex. A-6) was prepared. Police also got prepared sketch of dead body (Ex. A-8), police form No. 13 (Ex. A-9), and letter (Ex. A-7) to the Superintendent of LD Bhatt Hospital, Kashipur requesting for post-mortem examination. A police party reached at the spot, where photographs were taken and after sealing the dead body of the deceased, inquest report (Ex. A-6) was prepared. Police also got prepared sketch of dead body (Ex. A-8), police form No. 13 (Ex. A-9), and letter (Ex. A-7) to the Superintendent of LD Bhatt Hospital, Kashipur requesting for post-mortem examination. Dead body was sent in a sealed condition for autopsy. 4. PW2 Dr. SS Nabiyal, Medical Officer of LD Bhatt Hospital, Kashipur conducted the post-mortem examination on the very day (15.2.2004) at about 4.30 p.m. He recorded three ante mortem injuries in the autopsy report (Ex. A-5) and opined that the deceased had died of shock and heamorrage due to ante mortem head injury. 5. Investigating Officer after preparing the site plan (Ex. A-11) of the spot, took the blood-stained and simple earth, sealed it and prepared the memorandum Ex. A-12. He interrogated Jakir and other witnesses, and it came to light that the miscreants had looted the mobile phone, jacket, watch and passport along with other articles of the deceased. Mobile phone number of the deceased was "9412354363". Thereafter, the Investigating Officer contacted the General Manager, Bharat Sanchar Nigam Ltd. (for short, BSNL) and took the call details of the aforesaid mobile number. It was found during investigation that from the said phone, after the death of the deceased, some calls were made to phone No. 0595-2330472. On this, the Investigating Officer along with SI Kanchan Singh (PW7) went to the District Rampur and from the telephone exchange found that landline No. 0595-2330472 was registered in the name of one Malkhan Singh. The police team went to house of Malkhan Singh, where his wife told that the telephone was lying dead for some days. Thereafter Malkhan Singh was contacted, who told that he belonged to village Ratua Nagla near Tanda, Rampur. It was found that from the mobile of the deceased, calls were also made to telephone No. 273792, which was the number of one Amar Singh of Awas Vikas Colony, Kashipur. On going there, the Investigating Officer found that Amar Singh was a police constable, who was posted in Bijnaur, and on making inquiry from his wife it came to light that this family also belonged to village Ratua Nagla. On going there, the Investigating Officer found that Amar Singh was a police constable, who was posted in Bijnaur, and on making inquiry from his wife it came to light that this family also belonged to village Ratua Nagla. Wife of Amar Singh disclosed that on 19.2.2004, she did receive telephone calls from Dablu Singh (accused), who was son of his brother-in-law (Jeth). She further disclosed that on 15th of February 2004, Dablu Singh came to her at odd hours with bandage on his ear, who told her that he suffered the said injury in some accident. Thereafter police team along with PW1 Keshav Chandra Agarwal and PW6 Ajay Agarwal (nephew of the deceased) went to village Ratual Nagla in District Rampur, where they contacted Dablu Singh, who confessed his guilt to police and separately to the informant as well. On his pointing out, watch of the deceased, which was in the wrist of Dablu Singh, and broken mobile phone were recovered. Latter, he (Dablu Singh) got recovered one National Savings Certificate (for short, NSC) of Rs.500/-, which belonged to the deceased. On interrogation, said accused Dablu Singh disclosed that he committed crime with co-accused Michel Masih, whereafter Michel Masih was also arrested. Jacket and passport of the deceased were recovered on the pointing out of this accused and separate recovery memo was prepared in respect of said recovery also. Recovery memos, Exs. A-3 and A-4, were got signed by the respective accused and the witnesses. Forensic laboratory report disclosed that articles sent for analysis contained human blood. On completion of investigation, charge-sheet (Ex. A-20) was filed by the Investigating Officer against both the accused Dablu Singh and Michel Masih for their trial in respect of the offences punishable under Sections 302/34, 411 and 404, IPC. 6. Judicial Magistrate, Kashipur on receipt of the charge-sheet and after giving the necessary copies to the accused, as required under Section 207, Cr PC, committed the case to the Court of Sessions for trial. The trial court on 29.4.2007, after hearing both sides, framed the charge of offences punishable under Sections 302/34, 404 and 411, IPC against both the accused, namely, Dablu Singh alias Dambi and Michel Masih, who pleaded not guilty and claimed to be tried. 7. Prosecution got examined PW1 Keshav Chandra Agarwal (informant), PW2 Dr. The trial court on 29.4.2007, after hearing both sides, framed the charge of offences punishable under Sections 302/34, 404 and 411, IPC against both the accused, namely, Dablu Singh alias Dambi and Michel Masih, who pleaded not guilty and claimed to be tried. 7. Prosecution got examined PW1 Keshav Chandra Agarwal (informant), PW2 Dr. SS Nabiyal (who conducted the post-mortem examination), PW3 Ashok Kumar (witness of inquest report), PW4 SSI Suresh Chandra Joshi (Investigating Officer), PW5 Prabhakar (photographer), PW6 Ajay Kumar Agarwal (nephew of the deceased), PW7 SI Kanchan Singh (witness of the recoveries made on the pointing out of accused) and PW8 SI PD Joshi (who prepared the check report). 8. Oral and documentary evidence was put to the accused under Section 313, Cr PC, in reply to which each one of the accused pleaded that the evidence adduced against them was false. However, no evidence was adduced in defence. 9. Trial court after hearing the parties found that prosecution has successfully proved charge of offence punishable under Section 302 read with Section 34 and also the offences under Sections 411 & 404, IPC, and convicted both the accused accordingly on 21.10.2011. After hearing on sentence on 22.10.2011, each one of the convicts, namely, Dablu Singh and Michel Masih were sentenced to imprisonment for life and directed to pay fine of Rs.500/- for the offence under Section 302 read with Section 34, IPC, rigorous imprisonment of two years for the offence under Section 411, IPC and rigorous imprisonment for two years along with fine of Rs.100/- for the offence under Section 404, IPC. 10. Aggrieved by the said judgment and order dated 21.10.2011/22.10.2011, passed by the Additional Sessions Judge/FTC, Kashipur, both the accused/convicts have preferred these two separate appeals before this Court. 11. Before further discussion, this Court thinks it just and proper to mention the ante mortem injuries recorded by Dr. SS Nabiyal (PW2) in the autopsy report (Ex. A-5), which are as under:- (i) Lacerated chopped wound present over forehead, horizontal at centre, size 10 x 5 cm into bone deep with fracture of corresponding frontal bone of scalp, extending up to upper end of nasal bone, upper fragments of bone are depressed. (ii) Multiple lacerated wounds present over head over posterior parietal scalp region involving area of 15 x 8 cm x bone deep, there is fracture of corresponding skull bone. (ii) Multiple lacerated wounds present over head over posterior parietal scalp region involving area of 15 x 8 cm x bone deep, there is fracture of corresponding skull bone. (iii) Lacerated chopped wound present over right parietal region of scalp, 3 cm above right ear, size 6 x 2 cm x bone deep. On internal examination, the fracture of frontal skull bone up to nasal bone corresponding to injury No. 1 has been recorded. 12. PW2 Dr. SS Nabiyal opined that the deceased died of shock and heamorrhage due to ante mortem head injury. He has further stated that the deceased might have died in the intervening night of 14th and 15th of February, 2004. He has further stated that ante mortem injuries could have been caused by some sharp edged weapon like "GANDASA". This witness has proved the autopsy report Ex. A-5. In his cross-examination, this witness has stated that injury Nos. (i) and (ii) could have been caused by fall, but injury No. (iii) could not have been suffered by the deceased merely on account of fall. 13. From the above medical evidence on record, it is established that the deceased was murdered in the intervening night of 14th and 15th of February, 2004. Now, we have to examine whether murder was committed by the two accused with common intention, as suggested by the prosecution, and while committing theft Rajendra Prasad Agarwal was killed by the present accused appellants. 14. PW1 Keshav Chandra Agarwal has stated that his brother Rajendra Prasad Agarwal was an unmarried man, who used to live separately from other members of the family. He has further stated that on 15.2.2004, Jakir told him telephonically that Rajendra Prasad Agarwal was not opening the door of his residential accommodation. PW1 Keshav Chandra Agarwal has further stated that thereafter he took his elder brother Radha Raman Agarwal with him, went to the spot and broke open the lock of channel gate and entered in the house of Rajendra Prasad Agarwal, where he found him lying dead. There were apparent injuries on the body of the deceased. This witness further told that he lodged the FIR Ex. A-1 at the police station. He has further stated that he accompanied the police to the residence of the deceased and told that his brother's mobile phone, passport, jacket and NSC were missing. There were apparent injuries on the body of the deceased. This witness further told that he lodged the FIR Ex. A-1 at the police station. He has further stated that he accompanied the police to the residence of the deceased and told that his brother's mobile phone, passport, jacket and NSC were missing. He has further stated that he also accompanied the police on their way to Ratua Nagla in District Rampur, where accused Dablu Singh was interrogated. This witness has also narrated that after taking Dablu Singh into confidence, he (Dablu Singh) confessed his guilt to him. He has further told that police, on pointing out of this accused, recovered broken mobile phone, watch and one NSC. He has further narrated that he also accompanied the police at the time of arrest of another co-accused Michel Masih, whose involvement came to light after arrest of the accused Dablu Singh, and corroborated the fact that recovery of jacket and passport of the deceased (Rajendra Prasad Agarwal alias Germany Babu) was made on the pointing out of the said accused (Michel Masih). This witness was subjected to lengthy cross-examination, but nothing has come out, which creates any doubt in his testimony. 15. PW6 Ajay Kumar Agarwal (nephew of the deceased) has corroborated the entire prosecution story as narrated by PW1 Keshav Chandra Agarwal. This witness too, despite having been subjected to lengthy cross-examination, could not be shaken. Only contradiction pointed out on behalf of the appellants is that PW1 Keshav Chandra Agarwal has stated that the colour of the jacket of the deceased was white, while PW2 Ajay Kumar Agarwal has stated that the jacket recovered was gray coloured. In our opinion, this contradiction is minor and natural, and cannot be said to be material one. Any white jacket, if it gets dirty, may not look white. 16. Recoveries, made on the pointing out of the two accused, are further corroborated by PW7 SI Kanchan Singh and PW4 SSI Suresh Chandra Joshi (Investigating Officer). Exs. A-3 and A-4 show that the recovery memos are not only signed by the police personnel, but also by the witnesses of the accused. As such, the recovery cannot be disbelieved lightly. 16. Recoveries, made on the pointing out of the two accused, are further corroborated by PW7 SI Kanchan Singh and PW4 SSI Suresh Chandra Joshi (Investigating Officer). Exs. A-3 and A-4 show that the recovery memos are not only signed by the police personnel, but also by the witnesses of the accused. As such, the recovery cannot be disbelieved lightly. PW4 SSI Suresh Chandra Joshi (Investigation Officer) has stated in detail how he obtained call details of the Mobile Phone of the deceased for the period after his death and could lay hand to accused Dablu Singh and Michel Masih. 17. Learned Counsel for the appellants argued that accused had no motive to commit the crime. We do not find any substance in this argument as the motive of theft is apparent from the evidence on record, and in the process of committing the theft, it is clear that the deceased was killed by the accused appellants. 18. It is also contended on behalf of the appellants that when the channel gate was locked from inside, it was not possible for the accused to enter into the house of the deceased. We have scrutinized the evidence on record from that angle also. Had it been a closed door of wood locked from inside, it could have been said that the accused had no occasion to get the lock of the gate opened, but in the cases of the channel gates, it is possible to lock the gate from inside as well as from outside without much difficulty, provided there is enough room to insert the wrist inside the channel, which the channel gates generally do have. 19. Lastly, it is contended on behalf of the appellants that had the incident taken place in the manner as suggested by the prosecution, the accused would not have left cash of Rs.8000/- in the drawer, which was found in his room during investigation and was handed over to PW1 Keshav Chandra Agarwal. In this connection, learned Counsel for the State submitted that it has come on the record that the drawer was not easily opening. As such, it is quite possible that the accused could have left it after trying a bit before leaving the place of incident. 20. In this connection, learned Counsel for the State submitted that it has come on the record that the drawer was not easily opening. As such, it is quite possible that the accused could have left it after trying a bit before leaving the place of incident. 20. Having re-assessed the entire evidence on record and after considering the submissions of learned Counsel for the parties, we do not find any force in these appeals, which are liable to be dismissed. 21. Accordingly, both the appeals are dismissed. Conviction and sentence, recorded by the Additional Sessions Judge/ FTC, Kashipur, District Udham Singh Nagar, vide judgment and order dated 21.10.2011/22.10.2011, passed in Sessions Trial No. 204/2004 and Sessions Trial No. 204A/2007 against the accused Dablu Singh alias Dampi and Michel Misah, are hereby affirmed. Convicts Dablu Singh and Michel Masih are already in jail. Let a copy of this judgment and order be sent to Superintendent of Jail, where the said convicts are serving out the sentence, for information of the appellants. Lower court record be sent back. Appeals dismissed.