Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 795 of 2001 (Old No. 21 of 1998) Pooran Lal and another … Appellants Versus State … Respondent. Sri A.S. Gill, Advocate with Sri Milind Raj, Advocate for the appellants. Sri S.S. Adhikari, learned A.G.A. for the State. Coram: Hon’ble B.C. Kandpal, J. Hon’ble Nirmal Yadav, J. [Per: Hon’ble B.C. Kandpal, J.] This appeal, under Section 374(2) Cr.P.C., arises out against the judgment and order dated 24.12.1997, passed by Special Judge/Additional Sessions Judge, Nainital, in S.T. No. 366 of 1996, State vs. Pooran and another, whereby accused Ram Babu was found guilty for an offence U/S 302 I.P.C. and accused Pooran was found guilty for an offence U/S 302/34 I.P.C. and both the accused were sentenced to undergo imprisonment for life. 2- The prosecution case, in short, is that on 12.4.1996, complainant Gulzar lodged a written report, Ext. Ka.1, at P.S. Bazpur with the allegations that on 12.4.1996, he had gone to engage labour in Labour Colony Bannakhera, P.S. Bazpur and at about 8.30 P.M. in the night he saw 2 a crowd of persons in front of the house of Ishwari Pradhan. There was electric light at the spot and abusive language was being used there. Accused Pooran was catching hold of Pooran son fo Deep Chand and he asked his brother accused Ram Babu, who was holding an axe in his hands, to assault him. At this accused Ram Babu assaulted Pooran son of Deep Chand with his axe causing his death on the spot. Thereafter both the accused left the place of occurrence. It is further case of the prosecution that the occurrence was witnessed by Ishwari, Mahipal and several other persons. Lateron the complainant came to know that a dispute had taken place between accused persons and the deceased over video film vision. On the basis of written report, chick F.I.R. Ext. Ka.6 was prepared and a case crime No. 250/1996 U/S 302 I.P.C. was registered against the accused persons vide G.D. No. 45 dated 12.4.1996, the carbon copy of which is Ext. Ka.7. 3- S.I. Nirbikar Singh investigated the case. He reached the spot and conducted inquest proceedings on the dead body of deceased Pooran and prepared inquest report, Ext. Ka.11. He also prepared challan lash, photo lash, sample seal and other letters, Ext. Ka.12 to Ka.15 and seized the blood-stained and simple earth from the spot and sealed the same in separate boxes and prepared seizure memo, Ext. Ka.4. Thereafter he inspected the place of occurrence and prepared site-plan Ext. Ka.16. He arrested the accused persons on 15.4.1996 and at their instance got recovered the 3 axe, weapon of assault, which was sealed by him on the place of recovery and also prepared recovery memo Ext. Ka.2. He also prepared site-plan Ext. Ka.17 of the said place. 4- The autopsy on the dead body of Pooran was conducted by Dr. B.C. Joshi, on 13.4.1996 at 2.45 P.M. in Government Hospital, Kashipur and found the following ante-mortem injuries on his person:- 1. Incised wound 8cm x 3cm over left chest, 3cm from the nipple horizontally placed x cavity deep which was caused by sharp edged weapon. 2. Incised wound 10cm x .5cm x muscle deep on right side of lower part of back of chest on sub costal region. 3. Abrasion 1cm x 1cm on back of right elbow joint. On internal examination, the doctor found pericardium congested and punctured cut at the side of injury No.1, and 1 ½ liter blood was present in the cavity and semi digested food was found in the abdomen. In the opinion of the doctor the cause of death was haemorrhage and shock as a result of ante- mortem injuries which were likely caused by axe on 12.4.1996 at about 8.30 P.M. and injury Nos. 1 and 2 were sufficient for causing the death. 4 5- The I.O. after completion of investigation, submitted charge sheet, Ext. Ka.18 against the accused persons. 6- The Judicial Magistrate, Kashipur, vide his order dated 29-6-1996, committed the case to the court of sessions. 7- The 4th Addl. Sessions Judge, Nainital, framed charges against accused Pooran and Ram Babu U/Ss 302/34 and 302 I.P.C. respectively. They denied the charges and claimed trial. 8- In order to prove its case, the prosecution has produced as many as 12 witnesses, P.W.1, Gulzar, P.W.2, Mahipal, P.W.3, Ishwari, P.W.4, Pratap Singh, P.W.5, Kulbinder Singh, P.W.6, Angad, P.W.7, Har Prasad, P.W.8, Attar Singh, P.W.9, Tassaduk, P.W.10, Dr. B.C. Joshi, P.W.11, Head Constable Mohan Singh and P.W.12, S.I. Nirbikar. 9- The accused in their statement U/S 313 Cr.P.C. have denied the prosecution case and alleged that they have been falsely implicated in the case. However, no evidence has been adduced in defence. 10- The learned trial court after having heard learned counsel for parties and considering the entire evidence on record, found the accused Ram Babu guilty for the offence U/S 302 I.P.C. and accused Pooran U/S 302/34 I.P.C. and both the 5 accused were sentenced to undergo imprisonment for life. 11- Feeling aggrieved by the aforesaid judgment and order, the accused/appellants have preferred this appeal. 12- We have heard the learned counsel for the parties and perused the record. 13- The learned counsel for the appellants has submitted that the eye witness of the occurrence P.W.3, Ishwari and the witnesses of recovery of axe, P.W.4, Pratap Singh and P.W.5, Kulbinder Singh did not support the prosecution case and they have been declared hostile. These were material witnesses and their non-supporting prosecution case is fatal to the prosecution. Therefore, the whole prosecution story pertaining to committing the murder of deceased by the accused with an axe and thereafter recovery of that axe at the instance of accused becomes highly doubtful and the accused/appellants are entitled for an acquittal. 14- It is true that P.W.3, Ishwari, P.W.4, Pratap Singh and P.W.5, Kulbinder Singh did not support the prosecution case, but the mere fact that the witnesses were declared hostile by the prosecution does not affect the prosecution case altogether. The evidence of the prosecution witnesses who had partly resiled from their previous statements can be used to the extent they 6 supported the prosecution for corroborating the other witnesses. Further in this case P.W.1, Gulzar Singh and P.W.2, Mahipal have fully supported the prosecution case. Both these witnesses are eyewitnesses of the occurrence. 15- The written report, Ext. Ka.1 was lodged by P.W.1, Gulzar Singh at Police Station Bazpur at 11.30 P.M. on 12.4.1996. The occurrence is said to have taken place at 8.30 P.M. on 12.4.1996. The distance of the police station from the place of occurrence is said to be 13 kilometers. Therefore, it is quite clear that the F.I.R. has been lodged without any in ordinate delay. The prompt lodging of F.I.R. rules out the false implication of the accused in the occurrence. Perusal of the F.I.R. reveals that P.W.1, Gulzar Singh had seen the occurrence. He also mentioned in the F.I.R. that Ishwari and Mahipal also witnessed the occurrence apart from other witnesses. Although Ishwari did not support the prosecution case but the witness Mahipal has fully corroborated the prosecution version. Therefore, it is necessary to scrutinize the evidence of P.W.1, Gulzar Singh and P.W.2, Mahipal with care and caution. 16- P.W.1, Gulzar Singh has deposed that on 12.4.1996, he had gone to engage labour in Labour Colony Bannakhera. Mahipal was also with him. They heard the noise of abuse from the road. When they reached in the colony then they saw quarrel in between accused Pooran and Ram Babu on the one hand and Pooran S/o Deep Chand on the other, in 7 front of the house of Ishwari Pradhan. Accused Pooran was catching hold of deceased Pooran and accused Ram Babu attacked on deceased Pooran with an axe. Pooran received axe-blow and died at the spot. This witness further deposed that the incident had taken place at about 8.30 P.M. in the night. He has also proved the written report Ext. Ka.1. This witness has been cross-examined at a great length but nothing immaterial has come out from it, which may render his testimony as unreasonable. Presence of this witness at the spot can not be doubted. He has specifically deposed that he had gone to the Labour Colony in order to arrange labour. No reason has been assigned in the cross examination of this witness as to why he would narrate a false story against the accused/appellants. Therefore, the testimony of this witness seems to be natural and trustworthy. 17- The another eyewitness of the occurrence is P.W.2, Mahipal. He has fully corroborated the testimony of P.W.1, Gulzar Singh. He has deposed that the incident is of 12.4.1996. On that day he along with Gulzar Singh had gone to village Balli to arrange labour. There they heard noise in front of house of village Pradhan Ishwari and when they reached at the place of occurrence at about 8.30 P.M., they saw that accused Pooran was catching hold of deceased Pooran. Accused Ram Babu was having an axe in his hands. At this Pooran asked Ram Babu to finish deceased Pooran with the axe. Then accused Ram Babu attacked on the deceased with the axe and after receiving axe injuries the 8 deceased Pooran died at the spot. This witness further deposed that they had seen the incident in the light emitting from the electric bulb. Thereafter accused Pooran and Ram Babu fled away with the axe. From the cross-examination of this witness also nothing unreasonable has come in light and the testimony of this witness is also cogent and reliable. Therefore, we find that from the evidence of both these witnesses it has been established that accused Pooran was catching hold of deceased Pooran and accused Ram Babu gave axe blow to the deceased due to which he sustained injuries and died at the spot. 18- Learned counsel for the appellants also submitted that according to the prosecution the incident has occurred at 8.30 P.M. in the night, hence the witnesses had no opportunity to witness the occurrence in the dark hours of the night. 19- The above argument of learned defence counsel is of no avail. It has come in the statements of P.W.1, Gulzar Singh and P.W.2, Mahipal, that electric bulb was burning out-side the house of village Pradhan Ishwari at the time of occurrence and they had seen the occurrence in the light emitting from that bulb. In the site-plan, Ext. Ka.16, the investigating Officer has shown the place with letter ‘BL’ where the electric bulb was flashing its light at the time of incident. Therefore, source of light at the spot has been fully established by the prosecution. Further, it has come in evidence that the houses of accused, deceased and these 9 witnesses are at a distance of hardly ½ kilometers and they were acquainted with each other prior to the incident. Therefore, identity of the accused/assailants at the spot can not be doubted. 20- The learned counsel for the accused/appellants also raised contention that the prosecution has not been able to prove the motive against the accused/appellants for commission of the crime, and this fact also falsify the prosecution story. 21- The above submission of learned counsel for the appellants is also without any substance. According to the prosecution version, prior to actual incident of assault, quarrel had taken place between the deceased and the accused persons over video film vision. The factum of quarrel has been narrated by P.W.1, Gulzar Singh and P.W.2 Mahipal. They have specifically deposed in their examination-in-chief that deceased Pooran and the accused persons were quarrelling and hurling abuses and thereafter the actual incident of assault by axe on the deceased had taken place. Therefore, the prosecution has been able to establish the motive in the instant case. It is also well settled principle of law that in a case of direct evidence, motive does not play an important role and it becomes academic only. 22- Learned defence counsel also raised the submission that the prosecution could not prove the recovery of axe at the disclosure statement of the 10 accused, as the witnesses of recovery P.W.4, Pratap Singh and P.W.5, Kulbinder Singh, in whose presence recovery of axe was made, did not support the prosecution story, and this fact is also fatal to the prosecution case. 23- Again the above submission is not tenable. The whole statement of P.W.4, Pratap Singh cannot be discarded altogether. Although this witness did not support the prosecution on the point of recovery of axe at the instance of accused persons, but he has admitted this fact in his examination-in-chief that police had brought the accused Pooran and Ram Babu in police custody in the Colony and he was also present there. He further deposed that the I.O. had prepared fard near his field. He had also made his signature on this fard. He identified his signature on recovery memo, Ext. Ka.2. The recovery memo, Ext. Ka.2 reveals that on 15.4.1996 the accused persons confessed their guilt before the I.O. and the I.O. recorded their confession in the said memo. It is further mentioned in the memo that the accused Ram Babu himself brought out the axe concealed in the grass and bushes. Copy of the recovery memo was also handed over to the accused and his signature were obtained in token. P.W.12, S.I. Nirbikar Singh has proved the recovery memo, Ext. Ka.2. In the aforesaid facts and circumstances of the case it cannot be said that false recovery of the axe has been shown in this case. We are fully convinced that the police got recovered the weapon of assault at the instance of accused persons. 11 24- The another important aspect of the case is that the medical evidence fully corroborates the ocular version. P.W.10, Dr. B.C. Joshi, who conducted autopsy on the dead body of the deceased Pooran, has found two incised wounds on the chest of the deceased. The measurement of these wounds was 8cm x3 cm and 10cm x.5cm respectively and looking to the size of wounds, it can be safely said that the injuries could be caused by a heavy weapon like axe. According to the medical officer a half liter blood was present in the cavity and semi digested food was also found in the abdomen. He further opined that injury Nos. 1 and 2 were likely caused by axe on 12.4.1996 at about 8.30 P.M. and these injuries were sufficient to cause the death. In this way the prosecution version finds full support from the medical evidence. 25- Learned counsel for the appellants also submitted that prior concert of minds is essential for sharing common intention, which the prosecution has failed to establish in the instant case, therefore, appellant Pooran cannot be held guilty of murder of the deceased. 26- This submission of learned counsel for the appellants is worthless. It has come in the statements of P.W.1, Gulzar Singh and P.W.2, Mahipal that at the time of incident, accused Pooran was catching hold of deceased and on the asking of accused Pooran, accused Ram Babu, who was holding an axe in his hands, gave axe blow to 12 the deceased. Therefore, prior meeting of minds has been proved in the case. Prior to incident, quarrel took place between the deceased and the accused persons. Thereafter accused Pooran caught hold of the deceased and asked his brother accused Ram Babu, who was holding an axe, in his hands to kill the deceased with the axe and he responded to his call and gave axe blow to the deceased. Therefore, accused Pooran has shared common intention with the other accused Ram Babu in committing the murder of the deceased and he has been rightly held guilty of offence U/S 302 with the aid of Section 34 I.P.C. 27- In view of above discussion, we are in full agreement with the findings recorded by the learned trial court. We do not find any ground to interfere with it. Therefore, the appeal is liable to be dismissed, being without any force. 28- The appeal is dismissed. The impugned judgment and order holding the accused/appellant Pooran guilty U/S 302/34 I.P.C. and accused/appellant Ram Babu guilty U/S 302 I.P.C. and sentencing both of them to suffer a sentence of life imprisonment, is upheld. 29- Accused Pooran is on bail. His bail bonds are cancelled and sureties discharged. He be taken into custody forthwith in order to serve out the sentence passed by the trial court. 13 30- The another accused/appellant Ram Babu is already in jail. 31- Let the record be transmitted to the trial court for compliance to be reported to this court within three months. (Nirmal Yadav, J.) (B.C. Kandpal, J.) May 10, 2010. ISB