IMPORTANT POINT
Defect in investigation, unless it goes to the very root of the prosecution story, should not affect conviction.

JUDGMENT

Swatanter Kumar, J.-The present appeal is directed against the judgment of the High Court of Uttarakhand at Nainital dated 7th April, 2008 passed in Criminal Appeal No. 757 of 2001.

2. We may notice the facts giving rise to the present appeal which in any case fall within a narrow compass. One Smt. Taradevi, the deceased was married to one Gajaram. From this marriage, she had two children namely Rampal and Guddu (PW4). After the unfortunate death of her husband Gajaram, she used to live with her younger son Guddu. The elder son Rampal was married and had been living separately with his family though in the same village. Gajoo, the accused/appellant, is the brother-in-law of deceased Taradevi i.e. her husband’s younger brother. He was also staying separate, though near the house of Taradevi. After the demise of her husband, there were some disputes regarding the division of property between the deceased, on the one hand, and her elder son, Rampal and brother-in-law, Gajoo on the other. The dispute was related to the agricultural land. It is stated that Gajoo and Rampal both did not want to give any land to Taradevi.

3. On the night of 1st July, 1987, a ‘Satyanarayan Katha’ had been organised by Chetu Ram at his house in the village Kotda Kalyanpur. A number of residents of the village had gone to attend the Katha. PW2, Asharam and PW3, Kewalram along with other people were returning back to their homes at midnight. On their way back both PW2 and PW3 heard moaning sounds when they reached near the house of Taradevi. PW2 and PW3 were carrying their torches and in the light of the torches they saw that accused Gajoo was armed with a Daranti, Ext. 2 with which he was hitting the deceased and accused Rampal had held her down, in the Aangan (courtyard) of her house. On being challenged, both these witnesses were threatened by Gajoo stating that they should go away from there. These two witnesses are stated to have neither raised any alarm nor disclosed the incident to anyone. The next morning, information of the incident was given by PW4 to his maternal uncle Bhadu Ram, who was examined as PW1. Upon receiving information, the matter was reported by PW1 to the police in the morning of 2nd July, 1987. PW1 had lodged the written report vide Ext. Ka-1 at Police Station, Sahaspur at about 10.30 in the morning. On the basis of Ext. Ka-1, the FIR, a Check Report, Ext. Ka-16, was prepared. Sub-Inspector Brahma Singh, PW6 started investigation in the matter. He reached the place of incident and did Panchayatnama of the corpse of Taradevi. After performing autopsy on the body of the deceased, vide Ext. Ka-6, he noticed that there were wounds on the corpse and prepared a Report Ext. Ka-8. Then he sent the body for post-mortem examination to Dehradun. Blood stained soil, Ext-3 and plain soil samples, Ext-4 were collected from the spot, and a site plan, Ext. Ka-12 was prepared. Dr. U.K. Chopra of Doon Hospital on 3rd July, 1987 prepared the Post-Mortem Report, Ext. Ka10 and found the following injuries on the body of the deceased;

“(i) Incised wound 4 cm x ½ cm muscle deep, 1 cm below the chin.

(ii) Incised wound 5 cm x 1 cm muscle deep, 2 cm below injury No. 1.

(iii) Three abraded contusions in the middle of the neck, sizes 1.5 cm x 1 cm; 2 cm x 1 cm; 1.5 cm x 1 cm.

(iv) Abrasion 3 cm x 2 cm on the back of the left elbow.

(v) Abrasion 3 cm x 2 cm on the back of the shoulder.

(vi) Abrasion 4 cm x 3 cm on the back of the right lumber region.”

4. Dr. Chopra in his report Ext. Ka-10 also recorded the following findings:

“On internal examination, under injury No. (iii) sub cutaneous tissue in the middle of the neck found congested. Hyoid bone found fractured. The larynx and trachea were found congested. Both lungs were found congested.”

5. PW2 and PW3 who were examined as eye-witnesses have fully supported the case of the prosecution. As already noticed, according to them, when they were on their way back from the house of Chetu Ram afte