Uttarakhand High Court
Govind Ram vs State Of Uttaranchal on 9 June, 2003
Equivalent citations: 2003CRILJ4189, 2003 CRI. L. J. 4189, (2004) 15 ALLINDCAS 323 (UTR), (2003) 47 ALLCRIC 730, (2004) 1 UC 1, (2004) 1 CRIMES 600
Author: Irshad Hussain
Bench: P.C. Verma, Irshad Hussain
JUDGMENT Irshad Hussain, J.
1. Accused-appellant Govind Ram has been convicted under Section 302 of Indian Penal Code and awarded capital punishment per judgment and order dated 19-10-2000 passed by the then Sessions Judge, Pauri Garhwal in Session Trial No. 58 of 1998 for having committed the murder of his step mother Smt. Pappu Devi at about 7 a.m. on 8-7-1998 in village Naudiyakhet, Patti Bijlot-I, tehsil Dhomakot, district Pauri Garhwal.
2. Prosecution case as disclosed in the F.I.R. and from the evidence was that the appellant fatally assaulted his step-mother by wielding Khukhari (dagger) at about 7.00 a.m. on 8-7-1998. Written report, Ext.Ka-1 was lodged at the police station by complainant Prem Lal P.W. 1, the real brother of the appellant and on its basis case was registered and investigation was taken up by Patwari (Revenue-Police) Bhagwan Singh, P.W. 7. It was also the case of the prosecution that in the night intervening 7/8-7-1998 there was night long "JAGAR" for arousal of supernatural (divine) prowess in a human being and large number of relatives were assembled in the house of the complainant. At about 5.00 a.m. appellant started behaving in an unusual angry and wicked manner. He became violent and started beating the persons present there. Out of fear relatives except the step mother Smt. Pappu Devi left the room. Appellant thereafter started assaulting his step mother by wielding a "Khukhari" and even dragged her towards the field outside the room. As a result of the injuries Smt. Pappu Devi died there at the spot. Appellant even thereafter continued to show anger and violent tendency and started dancing with "Khukhari". After the matter was reported to revenue police and case was registered, Patti Patwari concerned Bhagwan Singh reached at the spot along with others and in view of the unruly behaviour of the appellant, force was used and even gun shot was fired on his legs to overpower and arrest him. Khukhari was seized from the appellant and memo, of arrest and seizure, Ext.Ka.3 and Ext.Ka.2 respectively were prepared on the spot.
3. Investigating officer thereafter held Inquest on the dead body of Smt, Pappu Devi and prepared inquest report, Ext.Ka.5 and despatched the packed and sealed dead body for postmortem along with relevant documents and challan report, Ext. Kal3. Postmortem on the dead body of the deceased was performed at 4.45 a.m. on 9-7-1998 by Dr. A.K. Gupta, P.W. 5, medical officer, district hospital, Pauri Garhwal. Blood stained and plain earth, blood-stained pant and shirt of the appellant and petticoat and Dhoti of the victim were also seized and these were sent for chemical examination. On completion of the investigation charge-sheet, Ext. Ka-15 was submitted against the appellant on 8-9-1998.
4. Appellant was committed to the Court of Session on 5-11-1998 by the then Chief Judicial Magistrate, Pauri Garhwal and the charge against the appellant was framed by the then Sessions Judge on 11-6-1999.
5. At the trial prosecution examined seven witnesses including the two eye-witnesses, complainant Prem Lal, P.W.1 and his father Makhan Lal, P.W. 2. Chaman Singh Rawat, P.W.3 was the Pradhan of the village. He also received information of the incident and was even told about the incident by P.W.2, the husband of the victim. He gave evidence of the fact of arrest of the appellant and recovery of "Khukhari". He also proved copy of written information, Ext.khal sent by him to the concerned Patwari on 8-7-1998. P.W.4, Fateh Singh is another wit ness of arrest of the appellant and recovery of the Khukhari and also seizure of blood stained and plain earth from the scene of the occurrence. P.W.7 Bhagwan Singh, the investigating officer of the case proved the various steps taken towards the investigation besides proving the inquest held on the dead body. He proved check, F.I.R. Ext.ka.9, copy of the general diary entry regarding registration of the case Ext.ka. 10, inquest report Ext.ka. 12, challan report Ext.ka. 13, siteplan Ext.ka. 14 and charge-sheet Ext.ka. 15. He identified weapon of assault-Khukhari, Ext.I, and sample of plain and blood-stained earth, Ext.II and Ext.III respectively. Blood-stained Dhoti and petticoat of the deceased Exts.IV and V respectively and further blood-stained pant and shirt of the appellant Ext. VI and Ext.VII respectively were also Identified by him.
6. As mentioned above Mr. A.K. Gupta, P.W. 5, performed postmortem on the dead body of Smt. Pappu Devi at 4:45 p.m. on 9-7-1998 and prepared postmortem report, Ext.ka.6. Following ante-mortem injuries were detected :
1. Neck is cut 5 cm. above the sternoclavicular Joints. Whole thickness dimensions of cut end of neck is 12 cm. x 14 cm, side to side and anterio-posterio respectively, 5th cervical vertebra is clean cut. Dimensions of lower cut end of neck attached to skull is also 12 cm. x 14 cm. side to side and anterio-posterio. Maggots crawling in the wound.
2. Incised wound 9 cm. x 2 cm. muscle deep over the right shoulder joint top.
3. Incised wound 11 cm. x 10 x bone deep in the right side axilla. Head of right humerus seen.
4. Incised wound 7 cm. x 1 cm. x muscle deep tailing towards inner side on the outer aspect of right arm. 14 cms. below the top of right shoulder joint.
5. Chopped wound 20 cms. below the right elbow joint in the right forearm 17 cms. in circumference both bones sharply cut (right wrist joint and hand absent).
6. Incised wound size 6 cm. x 3 cm. x bone deep. Bone sharply cut (both bone) on the left forearm outer aspect, 16 cms. below the left below joint.
7. Chopped wound 22 cms. below the left elbow joint in the right forearm 17 cms. in circumference. Both bones sharply cut (left wrist joint-and hand absent).
8. Multiple contusion in an area of 11 cms. x 15 cms. just below the right breast.
9. Traumatic swelling in an area in front of right leg having incised wound 2 cm. x 1 cm. x muscle deep.
10. Incised wound 9 cms. x 3 cm., clean-cut front of right leg 30 cms. below the right knee joint.
11. Incised wound 6 cms. Clean-cut front of right leg 35 cms. below the right knee Joint.
12. Incised wound 9 cms. x 5 cms. x bone deep on the left side of knee Joint in inner aspect extending to back of leg.
13. Incised wound 13 cms. x 4 cms. x bone deep, both bone cut on the left side of foot inner side extending to the back of left foot. 8 cms. below the left medial melleolus.
14. Incised wound 5 cms. x 1 cms. x bone deep, tailing inner side on the left leg front 25 cms. below the left knee joint.
15. Incised wound 6 cms. x 4 cms. x bone deep both bone cut 6 cms. above the left medial melleolus.
16. Incised wound 12 cms. x 3 cms. x bone deep on the left leg on outer aspect extending towards the front 3 cms. above the left lateral melleolus.
17. Incised wound 10 cms. x 2 cms. x bone deep. . . . above the left great one front extending towards the inner side and sole, 11 cms. above the left medial melleolus.
18. Incised wound 5 cms. x 1 cm. from left angle of mouth extending up to left lower lip.
19. Incised wound 4 cms. x 1 cm. over the front of chin, muscle deep.
7. In the opinion of the medical officer death was caused due to shock and haemorrhage as a result of ante-mortem injuries about 1-11/2 days ago probably at about 7 a.m. on 8-7-1998.
8. As mentioned above the appellant was made to receive injuries to facilitate his arrest and therefore he was also medically examined by Dr. Jagat Singh Rawat P.W.6 on 8-7-1998 at 2.10 p.m. He had prepared injury report, Ext.ka.7 and according to him the appellant had in all sustained seven simple injuries out of which injuries Nos. 6 and 7 on the legs were caused by firearm. He gave out that the injuries were fresh and were probably caused on that day at about 8 a.m. He ruled out the possibility of the injuries being sustained at about 10-11 p.m. on 7-7-1998.
9. The defence of the appellant was of denial and of false implication. No evidence in defence was adduced. Learned Sessions Judge on the basis of his appreciation of the material on record and the incriminating circumstances accepted the prosecution version and found the appellant guilty of committing the murder of his step-mother Smt. Pappu Devi arid accordingly convicted and sentenced him as mentioned above.
10. Heard Sri Arvind Vashistha, Advocate Amicus Curiae for the appellant and the learned A.G.A. appearing on behalf of the State. The record of the case has also been examined by us.
11. Learned Amicus Curiae did not dispute the fact that the death of deceased Smt. Pappu Devi was homicidal and whosoever caused her fatal injuries had intended to commit her murder. The thrust of the submissions of the learned counsel for the appellant was that in the facts and circumstances of the case and the material on record, the learned Sessions Judge clearly erred in placing reliance on the statement of complainant Prem Lal, P.W.1 who was declared hostile by the prosecution and also coming to the conclusion that the incriminating chain of circumstances prove guilt of the appellant beyond doubt. Learned counsel submitted that since the case of the prosecution entirely depends on circumstantial evidence the material on record were to be assessed bearing in mind the strict standard of proof required for establishing a case of circumstantial evidence against the culprit. Learned Amicus Curiae also vehemently argued that whatever may be the incriminating circumstance emanating from the admitted facts and inferences drawn learned Sessions Judge lost sight of the fact that the F.I.R. of the case, which is the very basis of the prosecution case was a fabricated and tainted document and further that the time of the occurrence clearly appear to have been changed and these cumulatively have the effect of creating grave doubt and suspicion in the prosecution version. On the other hand the submission of the learned A.G.A. was that the circumstances from which the conclusion of the guilt of the appellant had been drawn by the learned Sessions Judge were of conclusive nature and these have excluded every other possibility except the guilt of the appellant and that there is no merit in this appeal.
12. Before entering into the merit of the case it may be pointed out at the outset that as is well settled by a catena of decision of the Apex Court, the circumstances from which the inference of guilt is sought to be drawn by the prosecution must be fully established and that the cumulative effect of the circumstances must be such as to rule out every possible hypothesis of innocence of the accused. We now proceed to consider the facts and circumstances in the light of the above settled principle.
13. At the stage of the investigation the case was based on both the ocular and circumstantial evidence. The complainant Prem Lal, P.W.1 however turned hostile in so far as the claim to witness the murderous assault made by the appellant on the victim Smt. Pappu Devi by use of Khukhari (a heavy sharp-edged weapon having crescent shaped blade) is concerned, but he remained stead-fast to prove all important incriminating circumstances of last seen theory besides other facts and circumstances related to the occurrence. The circumstances which were taken note of to draw conclusion are :--
(1) the deceased Smt. Pappu Devi was lastly seen alive in the company of the appellant;
(2) the appellant had started behaving in an angry and aggressive manner while wielding a Khukhari soon before he was with the deceased in his house;
(3) the appellant was arrested with Khukhari, the weapon of assault from the field his house where the trunk of the body of the deceased and severed head were found lying on the ground;
(4) the pant and shirt of the appellant attached in the case were found to have stains of blood of group 'A' as were the stains of blood on the Dhoti and petticoat worn by the deceased at the time of the occurrence.
14. As regards the first mentioned incriminating circumstance of last seen theory is concerned it may again be pointed out that although complainant Prem Lal, P.W. 1 the real brother of the appellant claimed himself to be the eye-witness of the occurrence when his statement was recorded by the investigating officer under Section 161 of the Code of Criminal Procedure, but he resiled from his earlier statement while reiterating that during the course of 'Jagar' ritual on the day of the occurrence, i.e. 8-7-1998, and in the early hours of morning appellant Govind Ram started behaving in a violent manner and out of fear he himself and others left the room leaving there the appellant and his mother Smt. Pappu Devi. The witness claimed to have left the place with his father to give information to the Pradhan about the incident. This witness also gave out that he had also lastly seen Smt. Pappu Devi alive on the field near his house where appellant was also present carrying a 'Khukhari'. According to him his mother was murdered in the field where he had seen her and appellant Govind Ram. He claimed that he was not aware as to who had murdered his mother.
15. Makhan Lal, P.W.2 the father of the appellant also corroborated the version of the complainant regarding the circumstances of last seen theory. There is nothing in the cross-examination of both these witnesses which may be taken to assail their claim in this regard. They were not even suggested that their claim about the circumstance of last seen is false.
16. The written report, Ext.ka. 1 was lodged by the complainant Prem Lal with the Patwari Patti the same day at 7.30 a.m. Complainant gave out that the report, Ex.ka. 1 was prepared on his dictation and was signed by him. In the report it was mentioned that the appellant Govind Ram had committed murder of Smt. Pappu Devi by wielding a Khukhari at about 7 a.m. on that day. Complainant stated that the F.I.R. was got prepared by him he was aware that murder of his mother had been committed. Even though the complainant had turned hostile but his testimony is not rendered unworthy in its entirety as he has fully proved the circumstance of last seen as mentioned above. The complainant is real brother of the appellant and whereas the deceased was their step-mother. The complainant is related to the deceased and the appellant both and the learned counsel for the appellant could not assign any reason as to why he would tell He to falsely implicate the appellant by proof of said circumstance and save the real culprit if any one else than the appellant was with the deceased lastly and responsible for committing the murder. The evidence of Makhkhan Lal, P.W.2, the father of the complainant would also have to be placed on the same, footing and the evidence of both the witnesses could very well said to be wholly reliable and therefore conclusive so far as the circumstance of last seen is concerned.
17. As mentioned above the occurrence took place at about 7 a.m. and soon after the witnesses Chaman Singh Rawat, P.W.3, the Pradhan of the village and Fateh Singh, P.W.4 of the same village reached the scene of the occurrence and found the dead body of Smt. Pappu Devi lying in the field near the house of the complainant where the appellant was also standing in aggressive mood while carrying a Khukhari. Patti Patwari Bhagwan Singh, P.W.7 has also reached the scene of the occurrence at 8 a.m. after registration of the case and found the dead body of the deceased in the field from where the appellant with Khukhari was arrested by use of force. The evidence thus fully establish that the time gap between the point of time when the deceased was lastly seen alive in the company of the appellant and when the deceased is found dead is very small and therefore, the proximity of time and place rule out the possibility of any person other than the appellant being the culprit of the crime. The Apex Court in a criminal appeal, Bodh Raj alias Bodha v. State of Jammu and Kashmir, 2001 AIR SCW 3655 : (2002 Cri LJ 4664) came to consider the case of murder based on circumstantial evidence and on the incriminating circumstance of last seen theory, laid stress that it applies when time gap is small. In the instant case not only the time gap as stated above is very small but it is also of significance that the appellant was arrested with Khukhari from that very place and the possibility of any person other than the appellant being lastly with the deceased becomes impossible.
18. The circumstances of last seen can however nor be taken conclusively to draw an inference that it was the appellant who committed the crime. It is well settled that there must be something more or other incriminating circumstances connecting the appellant with the crime in question. This aspect of the matter bring us to consider the incriminating circumstance No. 2 mentioned above. The evidence of complainant Prem Lal, P.W. 1 and his father Makhkhan Lal, P.W.2 is definite on the point that appellant had, soon before they had left deceased alone in the company of the appellant in their house, started behaving in aggressive and angry manner and this attitude had forced the occupants including these witnesses to leave the room out of fear. Both these witnesses tried to show that the appellant had started acting in such a manner as he had seized by evil spirit as a result of the Jagar ritual being held in their house, but it is of significance that the appellant has not shown to have harmed any person other than the deceased on that day. The conduct of the appellant soon before he was left alone in the company of the deceased also gave an indication of his intent to do away with the deceased. This incriminating circumstance has connectively between the crime and the appellant.
19. To further connect the appellant with the crime the incriminating circumstance mentioned above at No. 3 is also a link in the chain of the circumstances. The evidence of above two witnesses as also those of co-villagers Chaman Singh, P.W.3 and Fateh Singh, P.W.4 and further that of the investigating officer Bhagwan Singh, P.W.7 is consistent and similar on the point that in the field near the house of P.W. 1 and P.W.2 the trunk of the body of the deceased and the severed head were found lying on the ground. The evidence of P.W. 1 and P.W.2 is also to the effect that after the appellant was left alone in the company of the deceased in the room the appellant was later on found standing in the nearby field. The dead body of Smt. Pappu Devi was found lying there on the ground and further that the place is situate at a short distance from their house. P.W.3, P.W.4 and P.W.7 also gave out that the appellant was holding 'Khukhari' when the arrest was effected from that place. 'Khukhari', material Ext.I was identified by P.W.7. The memo, of arrest and recovery was then prepared besides the inquest report, Ext.ka.5. The medical evidence referred above indicate that the head of the deceased was severed from the trunk of the body and the hands were also cut-off which could have been possible by use of weapons such as 'Khukhari', The other incised wounds on the body of the deceased were also found which can only be attributed to such type of weapon. Learned counsel for the appellant submitted that the Khukhari, Ext.I said to be the weapon of assault, was not produced before the medical officer to conform whether injuries of the deceased could be caused by it and in the absence thereof it could not be accepted that the murder of the deceased was committed by use of this weapon. Considering the peculiar nature of injuries and the fact that head was severed from the trunk of the body an inference could safely be drawn that such type of injuries were in all probability caused by Khukhari. At any rate the circumstances that appellant was arrested from that place where the dead body of the deceased was found lying make out an incriminating circumstance and it is a link in the chain of circumstances leading to the inference regarding the commission of crime and its author.
20. Learned counsel for the appellant argued that the incriminating circumstance of the arrest of the appellant from the scene of the occurrence had not been sufficiently established because officers of the revenue department who have also appeared there to assist in the arrest of the appellant were not examined in evidence by the prosecution. Considering the overwhelming evidence on record and as discussed above mere non-production of other witnesses of revenue department would not entail rejection of the evidence adduced in the case.
21. So far as the last mentioned incriminating circumstance is concerned the evidence of P.W.5 shows that when the appellant was arrested his garments were blood stained. P.W.7 had identified the pant, Ext.VI and shirt Ext.VII of the appellant and these along with the Dhoti, Ext. IV and petticoat, Ext.V of the deceased along with other items were sent to the chemical analyzer and serologist for examination and report. The report, Ext.ka.8 prove that the stains on the pant and shirt were of human blood and the group of the blood was 'A' as was that of the blood stains on the above mentioned garments, of the deceased. This too was taken as a last link of the incriminating circumstance by the learned Sessions Judge to come to the conclusion that all these circumstances taken together complete a chain leading to the only inference of the guilt of the appellant. Learned Amicus Curiae has vehemently submitted that the claim regarding attachment of the garments of the appellant is doubtful as the I.O. does not claim to have prepared any memo, of attachment at that time. No doubt it is so, but any carelessness in this regard on the part of the investigating officer shall have no telling effect when independent witness P.W.5 had proved that the garments of the appellant were blood stained. P.W.4 also claimed that the clothes worn by the appellant were stained with blood although these were not attached by the investigating officer in his presence. The garments having been taken and sent for expert report sufficiently prove the attachment of the same and no suspicion in the claim of the prosecution can be raised for want of memo, of attachment of the garments.
22. Learned Amicus Curiae argued that the presence of group 'A' blood stains on the garments of the appellant as well as on the Dhoti and petticoat worn by the deceased could not be taken to be a clinching circumstance for want of any evidence about the blood group of the appellant. Learned counsel in support of the argument placed reliance on a decision of the Apex Court in the case of Bandi Mallaiah v. State of Andhra Pradesh, (1980) 3 SCC 136 : (1980 Cri LJ 914). In the reported case accused used a Lungi as a ligature to commit the murder of the victim and the presence of group 'A' blood on the Lungi which was also the blood group of accused was sought to be used as a clinching circumstance against that accused. In the absence of any evidence as to what was the blood group of the deceased the said circumstance was however not held to be clinching circumstance so far as that accused was concerned. The facts of the said case were at variance because here the victim brutally assaulted causing her good number of incised wounds and even severing of her head from the trunk of the body resulting in profuse bleeding naturally also staining the garments of the assailant with the blood of the deceased. The appellant was arrested after use of force and injuries found on his person as mentioned in the earlier part of the judgment were on the lower part of the body not resulting in profuse bleeding and therefore there was no possibility of staining the shirt etc. of the appellant by his own blood. If the garments of the appellant has blood stains of the same group as that of the deceased there remain no necessity in ascertaining the blood group of the appellant. In view thereof the view taken by the Hon'ble Judges in the reported case have no bearing to the facts of the instant case and the above circumstance could safely be said to have been satisfactory established to complete chain of circumstances leading to the inference of guilt of the appellant.
23. Learned Amicus Curiae also pressed into service the decision of the Apex Court in the case of Parichhat v. State of Madhya Pradesh, AIR 1972 SC 535 : (1972 Cri LJ 322) to bring home his point of view that the circumstances relied upon against the appellant were not put in the statement under Section 313 of Code of Criminal Procedure (hereinafter for short 'Code') and therefore these circumstances could not have been used against the appellant to form any opinion abut his guilt. Perusal of the statement under Section 313 of the Code of the appellant reveal that all the circumstances as have emanated in the case were put to him which gave him opportunity to put forward any explanation with a view to raise a suspicion in the claim of the prosecution and its evidence. Considering this state of affair the submission of the learned Amicus Curiae carry no conviction and it cannot be said that the appellant was prejudiced in putting forward his defence about the occurrence and explanation in regard to the incriminating circumstances.
24. Written report, Ext. Ka. 1 was lodged by P.W. 1 and reference to his evidence has already been given above. Referring to the evidence of Pradhan Chaman Singh, P.W. 3 and written information copy of which was brought on record through him as Ext.Ka-1 about the homicidal death of the deceased at the hands of the appellant, learned Amicus Curiae submitted that under the scheme of the Code there can be no second F.I.R. and it appear that the F.I.R. Ext. Ka-1 was fabricated after due deliberations and consultations that too after the steps towards the investigation of the crime have already been taken up on receipt of the information of the crime through the report sent by the Pradhan. No doubt the investigating officer, P.W. 7 also admitted to have received an information, Ext. Kha. 1, but it cannot be said to have been received by him prior to the lodging of the F.I.R., Ext.Ka.1 by the complainant of the case. Here it need to be pointed out that according to P,W, 3, the information in writing was prepared by him at 6.45 a.m. on 8-7-1998 and it does not stand to reason as to how the same could have been prepared on the basis of the information given by the P.W. 2 Makhkhan Lal, the husband of the deceased when he had left the house on that day along with complainant Prem Lal, P.W. 1 who had lodged the F.I.R. of the case, Ext.Kal at about 7.30 am. on that day with the revenue police. In view of this it is not a case of two first information reports and the possibility cannot be ruled out that Ext. Kha-1 in the form of information was brought into existence to create confusion in the prosecution story at the instance of the family members of the appellant and to help his cause.
25. On the basis of the F.I.R., Ext.Ka-1 check F.I.R. Ext.Ka-9 was prepared and case under Section 302/34, I.P.C. was registered by the concerned Patti Patwari. Attention was drawn to the memo of seizure of 'Khukhari', memo of arrest of the appellant and memo of seizure of blood stained and plain earth, Ext.Ka-2, Ext.Ka-3 and Ext.K-4 respectively to indicate that in these documents the case was shown to have been registered under Section 302/34, I.P.C. and pointing out to this it was argued that in all probability by the time these documents were prepared and the inquest on the dead body of the deceased had been held, the crime was brought to have been committed by more than one person and there being no F.I.R. in existence the case came to be registered under Section 302/34, I.P.C. which was not possible if the F.I.R. , Ext.Ka-1 was then in existence nominating the appellant the only assailant of the deceased. In view of the above facts it was submitted that the F.I.R. clearly appear to be antetimed. Learned Amicus Curiae pressed into service the reported judgments in the matter of L/Nk Mehraj Singh v. State of U.P., 1994 All Cri C 437 : (1994 Cri LJ 457) (SC); Thanedar Singh v. State of Madhya Pradesh, (2002) 1 SCC 487 : (2002 Cri LJ 254) and in the case of Balkar Singh v. State, 1987 All Cri C 482 : (1987 All LJ 1489) (HC) in support of the argument that if a prosecution fabricate documents and F.I.R. subsequent to the steps already taken towards the investigation of the crime, the prosecution version cannot be relied upon. Having considered the evidence of the complainant, P.W. 1 and investigating officer, P.W.7, we do not find any force in the above argument. The reason is that the investigating officer had continued to refer the case as one under Section 302/34, I.P.C. even after completing the Investigation and charge-sheet was accordingly submitted against the appellant under this Section although there has been only one author of the fatal injuries sustained by the deceased. The investigating officer has stated that this was the first case under Section 302, I.P.C. which had been investigated by him and due to Ignorance and carelessness the case was registered under Section 302/34, I.P.C. although from the very beginning it had been the case of the prosecution that only the single culprit, the appellant was the assailant of the deceased and the case as such should have been registered under Section 302, I.P.C. only. At any rate mentioning of Section 34 with the offence of murder punishable under Section 302, I.P.C. make little difference and it cannot be accepted that the F.I.R. was ante-timed.
26. As regards the time of the occurrence is concerned and the submission made by the learned Amicus Curiae it need to be mentioned that the occurrence according to prosecution took place at about 7 a.m. on 8-7-1998 and the post-mortem on the dead body of the deceased Smt. Pappu Devi was performed next day at 4.45 pm. As per the medical evidence and the postmortem report, Ext.Ka-6, maggots were found crawling in the neck region and head where it had been severed. There was distension of the abdomen and skin peeled of at places, back of chest, abdomen and thighs. Medical Officer, P.W. 7 gave out that these were signs of decomposition of the dead body. Learned Amicus Curiae submitted that the state of decomposition indicate that the death had probably occurred two or three days before the post-mortem and this belie the claim of the prosecution and the evidence of the witnesses. It need to be mentioned here that the medical officer gave definite opinion that the death of the deceased had probably occurred at about 7 a.m. on 8-7-1998 and there could also be difference of about 7 or 8 hours in the duration of the death on either side. There is nothing in the cross-examination of the medical officer which may in any way assail his expert opinion. However, so far as the presence of maggots and distension of the abdomen and peeling of skin was concerned it is not necessary that such symptoms occur only after two or three days from the death. For reference the observation from 22nd edition of Modi's Medical Jurisprudence and Toxicology, published by Butterworth India, New Delhi at page 234 may be reproduced here :
"From eighteen to thirty six or forty eight hours after death, the gases collect in the tissues ............ The abdomen becomes greatly distended ............ These gases form blister under the skin containing a reddish coloured fluid on the various parts of the body. When these bursts, the cuticle being softened peels of easily............... Flies, such as common houseflies and blowflies are attracted to the body and lay their eggs specially in the open wounds and natural orifices. The eggs hatch Into maggots or larvae within eighth to twenty four hours during hot weather. The maggots crawl into the interior of the body and helps in destroying the soft tissues ...........".
27. From above observation of the renowned author and medico legal expert, the possibility of presence of maggots and distension of the abdomen together with peeling of the skin is possible from 8 to 24 hours and 18 to 36 hours respectively in hot weather. There can be no doubt that the weather in the month of July when the occurrence took place normally remains hot in the hills also with considerable humidity. It was due to these reasons that the dead body of the deceased produced these symptoms which cannot be taken to belie the case of the prosecution about the time of the occurrence.
Learned Amicus Curiae also adversely commented upon the claim of the prosecution and the circumstances regarding the manner of the incident by submitting that all the injuries of the deceased cannot safely be attributed to one and single weapon such as, 'Khukhari' said to have been wielded by the assailant. Ante-mortem injuries No. 8 and 9 are multiple contusions and traumatic swelling whereas injuries No. 1, 5 and 7 are chopped wounds and the margins of the bones are clean cut. Other injuries are incised wounds of two types, one set leaves tails and other set do not. Considering the nature of these injuries the claim of the prosecution that appellant was arrested with 'Khukhari', the weapon of the assault was sought to be disbelieved. It need to be mentioned here that the medical officer, P.W. 5 testified that all the injuries except injury No. 8 could be caused by use of 'Khukhari' and that injury No. 8 could be caused by giving a fist blow It is evident from the large number of injuries and the fact that the head of the deceased was severed from the trunk of the body that the murder was committed in a brutal manner and the deceased might even had been given fist blow when any resistance was made by her at the time of the assault. The nature of the injuries therefore is such as could have very well been caused by 'Khukhari'. As is well settled the value of the medical evidence is only corroborative and medical evidence in this case has fully corroborated the claim of the prosecution and the circumstances born out of the facts and inferences drawn in the case.
28. 'Khukhari' Ext. 1 was also sent to the chemical analyzer and serologist, but no blood on it was found per report, Ext.Ka-8. Pointing out to this also the claim of the prosecution was sought to be discarded. In the peculiar facts and circumstances of the case mere absence of the blood on the 'Khukhari' would not be sufficient to disbelieve the prosecution version and overwhelming clinching circumstances definitely pointing out to the guilt of the appellant. It may also be mentioned here that the appellant remained with the dead body for quite sometime and there was every possibility that the blood on the weapon got wiped-off on repeated touch with the garments of the deceased. At any rate this factor has no adverse telling effect on the credibility of the prosecution case and the circumstances as established against the appellant.
29. For the reasons stated above we find that the case of the prosecution based on the evidence of the prosecution witnesses and the circumstantial evidence as discussed above has been established beyond all reasonable doubt and the learned 'Sessions Judge has rightly accepted the prosecution version and found the case against the appellant established from the circumstances and the appellant was rightly convicted under Section 302, I.P.C. for committing the murder of Smt. Pappu Devi at about 7.00 a.m. on 8-7-1998.
30. Learned Amicus Curiae has argued that the case does not fall in the category of rarest of rare case inviting the capital punishment. No doubt the murder was committed in brutal manner by the appellant wielding 'Khukhari'. However, considering the age and the attending circumstances of the case we are inclined to accept the submission that a lenient view may be taken and that the ends of justice would be met by awarding the appellant punishment of life imprisonment under Section 302 of the I.P.C.
31. In view of the above, we dismiss the appeal so far as the conviction under Section 302 of the I.P.C. is concerned. We modify the sentence passed against the appellant as under setting aside the death sentence.
32. Appellant Govind Ram shall undergo life imprisonment under Section 302 of the I.P.C. He is already in Jail. He shall serve out the sentence as awarded to him.
33. Criminal reference No. 3 of 2001 made by the learned Sessions Judge, Pauri Garhwal is hereby rejected.
34. Sri Arvind Vashistha, learned Amicus Curiae who argued the appeal on behalf of the appellant shall get the fee as prescribed by the Court.
35. Let the copy of the judgment along with the record of the case be sent back to the Court below for compliance.