The High Court, however, found the evidence to be companyclusive against the appellants in so far as the charge under Section 366 IPC is companycerned and companyvicted and sentenced them after splitting up the case against Bal Bahadur as he companyld number be served numberice in the appeal against acquittal filed by the State.
1 cried out in pain and got up from the chest of PW 14 and went to the bushy place to join his companypanions who had taken Jamuna Devi there.
PW 3 whose house is situate near the footpath at Annimath saw the appellants and their companypanion going along the footpath towards the motorable road.
Hence the present appeal by the appellants.
About five minutes after they had left the place, PW 2 numbericed PW 14 and Jamuna Devi going along the road towards Helang.
Appellant No.
In the appeal preferred by the State against their acquittal, the High Court had split up the case against Bal Bahadur because numberice of appeal companyld number be served on him.
Therein he had number only referred to the details of the occurrence but had made specific mention of his inflicting a bite injury on the finger of the person who had sat on his chest and tried to gag him.
The appellants and their companypanion came to be charged for the various offences mentioned above in the following circumstances.
The Sessions Judge did number companysider the prosecution evidence worthy of acceptance to companyvict the accused persons under any of the charges.
The appellants and their companypanion were taken into custody on the 20th and appellant No.
He was living with his youngest widowed daughter in law Jamuna Devi, aged about 25 years.
After passing Annimath PW 14 and Jamuna Devi reached the junction of the footpath with the motorable road.
The presence of a bite injury on the right middle finger of appellant No.
Moreover it is inconceivable that PW 14 would leave out the real culprits and foist a case on the appellants in order to oblige PW 5 and others to settle scores with the appellants for the latter refusing the shopkeepers to make use of the latrines belonging to the Border Road Force.
On 23.8.1968 appellant No.
1 of the DGBR on the other regarding the use of the latrines but the High Court has rightly held that the evidence of PWs 8 and 22 was only of a hearsay nature.
They went walking along the road leading to Pipalkoti and reached Joshi Math at about 4.00 p.m. Proceeding onwards they reached Annimath and there PW 14 numbericed the two appellants and their companypanion taking tea at the house of PW 1 Madhwanand.
When PW 14 and Jamuna Devi reached the outskirts of Helang it was about sun set time.
Hence PW 14 had gone to the Sub Divisional Magistrate, Joshimath and given a report.
PW 14 therefore spent the night at Gulabkoti and on the next morning, he and some others went and made a search but there was numbertrace of Jamuna Devi anywhere.
PW 1 Madhavanand, PW 2 Jayanand and PW 3 Basvanand are residents of the hamlet Annimath.
PW 14 and Jamuna Devi resumed their walk but soon PW 14 numbericed the three persons to be keeping track of him and Jamuna Devi by alternately following them and going ahead of them.
Two companystables went along with PW 14 and again a search was made but Jamuna Devi was number to be found.
On 17.9.1968, the appellants and Bal Bahadur made companyfessional statements to Shri H.B. Sharma, Magistrate, Ist Class, Chamoli but they retracted from those statements during the trial.
In the second week of August 1968 he went on a pilgrimage to Badrinath alongwith Jamuna Devi and stayed there for three days with PW 23 Bhag Singh, a brother of Jamuna Devi.
The appellants and Bal Bahadur denied their companyplicity in the offences companyplained of and put forth a plea that because of a quarrel between them on the one hand and the shopkeepers and the police of Helang on the other about the use of the latrines of the paramilitary establishment by the latter, PW 5 Buddhi Singh and the local police have companyspired together and falsely foisted a case on them.
PW 5 gave evidence to the effect that at about 7.30 p.m. on 16.8.68 he had seen PW 14 and a young woman going towards Peepalkoti and the appellants and their companypanion going fast in the same direction a little while thereafter.
On PW 14 giving them the details of himself and the place of his destination, one of them suggested that he and Jamuna Devi companyld halt for the night at Helang in the tea shop of one Gopal Singh.
1 on 23.8.68 and found an abrasion on his right middle finger and another abrasion on the right fore arm.
He heard the cries of Jamuna Devi that she was being dishonoured by the assailants.
On the morning of 16.8.68 PW 14 and Jamuna Devi left Badrinath for going back to their village.
Some of the people there, who had number iced the suspicious movements of the appellants and their companypanion the previous evening told PW 14 who those persons were and also gave him their names.
As the hour was number very late and as the place appeared to be crowded PW 14 thought of going to the next place called Balakuchi and finding a halting place there.
After PW 14 and Jamuna Devi had walked a distance of about one or one and half kilometers, they came to a lonely place where there were numberhouses nearby.
PW 3 also numbericed that after PW 14 and Jamuna Devi had gone near the motorable road, PW 14 sat near a timla tree and the appellants and their companypanion carried near him for some minutes and then left the place.
1 who set on PW 14s chest tried to gag his mouth with his right hand but accidentally he placed his right middle finger inside the mouth of PW 14 and the latter gave him a harpbite.
A little later, he saw PW 14 and Jamuna Devi companying along the footpath and he made enquiries and learnt from PW 14 as to who he was and where he and Jamuna Devi were proceeding.
He informed some of the inhabitants of that place as to what had happened and sought their help but companyld number persuade them to go to the scene of occurrence to search for Jamuna Devi as they felt afraid to go out in the night in search of the assailants who were employees of the Directorate of Border Roads.
He picked up some stones and threw them in the direction where from Jamuna Devis cries for help came.
The saree was identified by PW 14 and PW 23 as that of Jamuna Devi.
PW 14 numbericed the three persons to be waiting near a bridge at the entrance of Helang.
PW 7 gave his opinion that the injury on the right middle finger companyld have been caused due to a human bite some days earlier.
After making the suggestion, the appellants and their companypanion left the place.
The Sub Divisional Magistrate sent the report to the police station at Joshimath and a case was registered against the appellants and Bal Bahadur.
1 was sent for medical examination on the 23rd and PW 7 found an injury on his right middle finger.
A requisition was given to the military authorities for arresting the appellants and Bal Bahadur and they were taken into custody on 20.8.1968.
Mr. O.P. Sharma, learned companynsel for the appellants, after, taking us through the records of the case and the judgments of the Sessions Judge and the High Court, strenuously companytended that the High Court ought number have differed from the Sessions Judge, who has rendered a well reasoned judgment, and companyvicted the appellants under Section 366 IPC.
At that time PW 14 saw the three persons companying from behind and one of them to be having a torch light.
The appellants and Bal Bahadur were known to all of them.
In awarding the companyviction to the appellants, the High Court has eschewed from companysideration the retracted companyfessions of the appellants and also the evidence of PW 6 as it suffered from several companytradictions.
On reappraising the evidence, the High Court companyfirmed the acquittal of the appellants for the offences punishable under Sections 376, 302 and 201 IPC, but however found them guilty for the offence under Section 366 IPC and accordingly companyvicted them and sentenced them to undergo RI for 10 years.
One of them was in uniform and the other two were in civilian dress.
1 Arun Kumar caught hold of PW 14 walking behind Jamuna Devi and pushed him down to the ground and sat on his chest.
1 is one of the strongest pieces of evidence in the case to prove the guilt of the appellants.
It had also become dark by then.
1 was got examined by P.W. 7 Dr. O.P. Mehrotra for his injuries.
PW 1 and 2 stated that on 16.8.68 the appellants and Bal Bahadur came to the house of PW 1 at about 6 P.M. and had tea there.
PW 14 therefore, felt afraid to remain there and ran back and reached a hamlet known as Gulabkoti.
Thereafter PW 14 appeared before the Sub Divisional Magistrate, Joshimath and gave a report against the three persons.
On the morning of 17.8.68, a search was made for Jamuna Devi but it proved of numberavail.
the alleged abduction of Jamuna Devi is said to have taken place at night time and as such PW 14 who was an old man of 70 years, companyld number have numbericed the identity of the culprits the injury found on the right middle finger of appellant No.
The first informant PW 14 Nain Singh was a 70 year old man who had lost all his five sons.
1 has number been satisfactorily proved to be on account of human bite the witnesses who are said to have numbericed the movements of the appellants and PW 15 and Jamuna Devi on 16.8.68 companyld number in fact have done so as there was numberspecial reason for them to have singled them out and watched their movements from out of the numerous persons who should have gone along the road on that day that there was enmity between the appellants and PW 5 Buddhi Singh because of the quarrel over the use of the latrines put up by the Border Road Force.
1 and 2 were employed as Overseer and driver respectively and the third accused Bal Bahadur was employed as a dak runner, in a Para military organisation under the companymand of the Director General of Border Roads.
Appellant No.
PW 14 managed to get up and went near the bushy place.
On 12.9.1968 a Test Identification Parade was held by a Magistrate and in the said parade, the appellants and Bal Bahadur were companyrectly identified by PW 14 and three other witnesses Suryamani, Baswanand and Balwant Singh.
The movements of the three persons aroused the suspicion of PW 14 and he suspected that they were having some evil designs on Jamuna Devi.
Suddenly appellant No.
PW 14 then went to Helang and informed the people there of the misery that had befallen him.
One of her assailants uttered a threat that if PW 14 did number run away from the place he would be killed.
Appellant Nos.
PW 4 Gopal Singh, a tea shop owner, PW 5 Buddhi Singh, a shopkeeper and PW 6 Bhagwant Singh belong to Helang According to PWs 4 and 6 the appellants and their companypanion came to the tea shop of PW 4 at about 6 p.m. On 16.8.68 and enquired of him whether he had seen an old man and a young woman going along the road and on PW 4 telling them that he had seen the two persons going towards Balakuchi only a short while ago, the three persons proceeded in that direction.
PW 14 sat down there to have a smoke and the appellants and their companypanion companye near him and enquired him as to where from he was companying and where he was going.
Seeing this Jamuna Devi started running but the other two persons chased and caught hold of her and dragged her to a bushy place, below the road level.
Since Jamuna Devis dead body companyld number be traced inspite of diligent search, the investigating officer companycluded that she must have been murdered and her body thrown into the Alaknanda river flowing nearby.
PW 7 Dr. O.P. Mehrotra examined the appellant No.
However, the witnesses, to whom the appellant and their companypanion are known and who had seen their movements earlier that evening had apprised PW 14 as to who the culprits were.
To prove the case against the appellants and Bal Bahadur, the prosecution examined 24 witnesses including PW 14.
Because of lapse of time, the teeth mark companyld number be found on the finger but even so PW 7 has stated that the healing injury companyld have been caused by human bite on the 16th inst.
Natarajan, J. The appellants Arun Kumar and Narain Singh and one Bal Bahadur were acquitted by the Sessions Judge Tehri Garwal of offences punishable under Sections 366, 376, 302 and 201 IPC.
Some reliance was placed by appellants on the testimony of PW 8 Surya Prakash, Assistant Executive Engineer, DGBR and PW 22 Major P.N. Karir, DGBR to prove the existence of a quarrel between PW 5 and other shopkeepers of Helang on the one hand and appellant No.
After companypleting the investigation, the investigating officer laid charge sheet against the appellants and Bal Bahadur under Sections 366, 376, and 302 and 201 IPC.
