IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 1409 of 2001 (Old No. 604 of 1996) Girwar & others … Appellants Vs State of UP … Opposite Party (Now Uttarakhand) Sri Arvind Vashisth, learned counsel for the appellants Sri S.S. Adhikari, learned A.G.A. for the State/respondent Coram: Hon’ble B.C. Kandpal,J. Hon’ble Nirmal Yadav, J. (Judgment Per: B.C. Kandpal, J.) This criminal appeal has been preferred by the accused/appellants against the Judgment and order dated 29.03.1996 passed by learned Additional Sessions Judge, Roorkee, District Haridwar in Sessions Trial No. 376 of 1991, State Vs Girwar Singh & others thereby convicting the accused appellant – Siya Ram, under Section 148/302 of I.P.C., Bharta under Sections 148/302/149 of I.P.C. and the appellants, namely, Gariwar, Balbeer and Gautam under Sections 147/302/149 of I.P.C. Accused/appellant Siya Ram was sentenced to one year’s R.I. U/S 148 I.P.C. and life imprisonment U/S 302 I.P.C. and a fine of Rs. 1,000/-. Accused/ appellant Bharta was sentenced to undergo one year’s R.I. U/S 148 I.P.C. and life imprisonment U/S 302/149 I.P.C. and a fine of Rs. 1,000/-. Accused/appellants Girwar, Balbeer and Gautam were sentenced to 6 month’s R.I. U/S 147 I.P.C. and life imprisonment U/S 302/149 I.P.C. and a fine of Rs. 1,000/-. In default of payment of fine all the accused/appellant were directed to further undergo R.I. for one year each. However, it was also directed that all the sentences shall run concurrently. 2 2. Brief facts of the case are that on 05.08.1990 at 02:15 a.m., Madanpal – complainant lodged a complaint at police station Manglore, District Haridwar alleging therein that on 04.08.1990 his brother Nakli and Baru S/o Sandal sitting inside his house. On the same night, when Nakli was returning after dropping Baru to his house, Griwar, on the way stopped Nakli and told him, as to why he permit Baru to his house and offer him wine and thereafter, Griwar started abuses his brother and opened fire with his Tamancha (country made pistol). At 09:00 p.m., the complainant, his brother – Nakli, Baru and Bishambar (Pradhan) were going to police station in order to lodge the complaint about the said incident, when they reached near burial place of the village, they saw Girwar, Balbeer and Gautam having lathies, Bharata having Ballam (sharp edged weapon) and Siyaram having Tamancha (country made pistol) in their hands standing over there. Watching towards the complainant side, they all said, we shall send you for lodging the complaint and rush towards them. Siyaram fired at Nakli by his Tamancha, which hit the stomach of the deceased. On this, Madanpal, Baru and Bishambar ran away from the place of occurrence. Nakli fell down in the field of sugarcane of Dharam Singh and died there. Madanpal took the dead body of his brother Nakli and kept him in the field of Nepal Singh. Thereafter, Madanpal lodged the complaint about the incident at the police station concerned. Netrapal Singh performed the inquest, took into possession bloodstain, sample of earth vide memo Ext. Ka. 3. This witness also prepared the Chic F.I.R. (Ext. Ka. 6) and also prepared the letter to C.M.O., police form No. 13 and letter to Investigating Officer and sealed the dead body and sent the same for postmortem. Thereafter, Ajay Kumar Yadav investigated the case. He visited the place of occurrence and prepared the site plans (Ext. Ka. 11 and 12) and thereafter, 3 Baljeet Singh, conducted the investigation of the case and after completing the investigation submitted the chargesheet (Ext. Ka. 5) against the accused/appellants. After submission of chargesheet, the case was committed to the court of Sessions. 3. Dr. Y.S. Bisht conducted the postmortem examination of the dead body of the deceased – Nakli. The postmortem report revealed the following ante mortem injuries suffered to by him:- Gun shot wound of entry 4cm X 3cm X abdominal cavity deep on right side stomach 13cm below the right nipple at 6 o’clock position surrounded by 22 gun shot wound of cavity deep. 25cm X 25cm X Abdominal cavity deep in an area of 10cm X 9cm around the main wound (no blackening and tattooing present around the wound). 4. In order to support its case, the prosecution has produced eight witnesses. Madan Lal (P.W.1) who is the complainant of the report. This witness has stated the incident at length and submitted the same in writing. Baru (P.W.2) – eyewitness supported the version of Madan Lal. Keetab Singh (P.W.3) – who had seen the accused/appellants going from the side of his house towards burial place and after fifteen minutes he heard the voice of firearm from that side. Isham Singh (P.W.4) – this witness proved the panchnama, blood stain and sample of earth etc. before the court below. Dr. Y.S. Bisht (P.W.5) – this witness conducted the postmortem of the dead body of the deceased. Baljeet Singh (P.W.6) –is a retired inspector of police, who proved the chargesheet before the court below. Netrapal Singh (P.W.7) – 4 this witness prepared the panchayatnama, took the bloodstain and sample of earth etc. Sri Ajay Kumar Yadav (P.W.8) – this witness has visited the place of occurrence and prepared the site plans (Ext. Ka. 11 & 12). 5. Thereafter, the statements of accused/appellants were recorded under Section 313 of Cr.P.C. wherein they have denied all the allegations levelled against them by the prosecution. However, no oral or documentary evidence was adduced before the trial court by the accused in their defence. 6. The trial court after having considered the material available on record and hearing learned counsel for the parties convicted the accused appellant – Siya Ram, under Section 148/302 of I.P.C., Bharta under Sections 148/302/149 of I.P.C. and the appellants, namely, Gariwar, Balbeer and Gautam under Sections 147/302/149 of I.P.C. vide judgment and order dated 29.03.1996. 7. Feeling aggrieved by the aforesaid judgment and order, the accused/appellants have preferred this appeal before this Court, which has been placed before us for disposal. 8. Heard Sri Arvind Vashisth, learned counsel for the appellants, Sri S.S. Adhikari, learned A.G.A. for the State and perused the record. 9. Learned counsel for the appellants has firstly argued that the identity of the accused is not established by the prosecution and only on the basis of statement of Keetab Singh, who had seen the accused/appellants last time, the trial court presumed about the conduct of the 5 accused/appellants and recorded its findings. He has further invited our attention that he was not present at the place of occurrence. 10. After hearing learned counsel for the appellants and going through the statement of Keetab Singh (P.W.3), we are of the view that the submission raised by learned counsel for the appellants is devoid of any force for the reason that Keetab Singh (P.W. – 3), has stated in his deposition that on the date of occurrence at about 09:00 p.m., he had seen all the accused persons were going near to his house towards burial place. At that time, Bharta was having ballam, Giriwar, Balbeer and Gautam were having lathies while Siya Ram was having Tamancha; they all were going towards burial place and after fifteen minutes, he heard the firearm sound and immediately thereafter, he came to know that Nakli Singh had died. It is not disputed that this witness was not present at the place of occurrence, so as far as his statement is concerned, it absolutely goes against the accused/appellants on the point of last seen. Therefore, the testimony of this witness cannot be disbelieved and his presence cannot be doubted. 11. Learned counsel for the appellants has further argued that it is a case of false implication of the accused – Balbeer, as this accused/appellant had already lodged the First Information Report against Baru and Bishamber in some another criminal matter. Therefore, in order to take revenge, the complainant in collusion with Baru lodged the false complaint against the accused/appellants. He has further stated that the incident took place in the night and there is no eyewitness of the incident who had seen the occurrence. Therefore, it cannot be said that who had fired upon the 6 deceased and on the basis of doubt, the accused/appellants would be entitled for benefit of doubt. 12. After having considered the arguments advanced by learned counsel for the appellants, and going through the evidence available on record before us, the submission advanced by the learned counsel for the accused appears to be of no avail. It is a specific case of the prosecution that on 04.08.1990, the deceased – Nakli and Baru (P.W.2) were sitting at the house of the deceased. The deceased was returning to his house after dropping Baru at his house and on the way, Gariwar met him and told him as to why they permit Baru to sit in their house and offer him wine. The accused – Gariwar also opened fire in the air. It was 08:15 p.m. Thereafter, Madanpal, Nakli, Baru and village Pradhan – Bishamber Singh were going to lodge the complaint about the incident and when they reached at burial place, in the torch light; they saw accused Gariwar, Gautam, Balbeer armed with lathies, Bharta armed with balam and Siya Ram having country made pistol (Tamancha) were standing there. The accused – Siya Ram with an intention to kill, Nakli fired at him, which hit the stomach of the deceased. After receiving firearm injury, deceased Nakli fell down in the field of Dharam Singh and died there. The aforesaid incident has been narrated by Madanpal (P.W.1) and Baru (P.W.2), both were the eyewitnesses of the occurrence. The statement of these witnesses is natural and trustworthy and on account of enmity, their testimony cannot be discarded. It is also to be noted here that suggestion was given to these witnesses in their cross-examination from the defence side and these witnesses have categorically denied the enmity of the complainant side with the accused. Therefore, the submission 7 of learned counsel for the accused person for false implication of the accused is not accepted. 13. Learned counsel for the accused/appellants has also submitted that there was no light at the seen of occurrence, hence, it was not possible for the witnesses to identify the culprit at the time of the incident. It has further contended that the torch has not been taken into possession by the Investigating Officer, therefore, the prosecution story is a concocted one. 14. This submission also has no force. Madanpal (P.W.1) and Baru (P.W.2) have specifically deposed that they were having torch and in the torchlight; they have recognized the accused persons. Further, the accused persons were very well known to the complainants prior to the incident. Therefore, merely, because the torch was not seized by the Investigating Officer from the witnesses the same cannot discard the plausible and trustworthy deposition of the witnesses. 15. Learned counsel for the appellants also stated that the accused/appellants have pointed towards the contradiction crept in the statement of P.W.2- Baru where he has stated that the dead body of the deceased was lying in the field of Nepal Singh, whereas in the First Information Report it has been mentioned that the deceased after sustaining injuries from gunfire, he has fallen down near the sugarcane field of Dharam Singh. 16. We again do not find any force in the submission advanced by learned counsel for the appellants. It has come in the evidence that after gunfire Baru and Bishamber had 8 run away from the place of occurrence and the complainant – Madanpal (P.W.1) had put the dead body of the deceased near the sugarcane field of Nepal Singh. Therefore, there is nothing material in the submission advanced by learned counsel for the appellants, which may cast a doubt in the genuineness of the prosecution version. 17. Learned counsel for the accused/appellants also pointed out towards the infirmity that in the inquest report (Ext. Ka 2), recovery memo of blood stained and sample earth (Ext. Ka. 3) and sample seal (Ext. Ka. 27) bear overwriting in the crime number. This overwriting cannot be said to be intentional and it appears that the overwriting is only on account of some mistake, which was done at the time of preparing the documents. Further, there is copy of General Diary report No. 2 time 2.15 a.m. dated 05.08.90, which bears the crime No. 221. Chic First Information Report (Ext. Ka. 6) also bears crime No. 221. These documents were prepared soon after lodging of the First Information Report, therefore, the overwriting as pointed out by the learned counsel for the accused is not intentional and it has been done at the time of preparing of the documents and the same could not be said to be fatal to the prosecution case. 18. Lastly, the learned counsel for the accused/appellants has vehemently submitted that the deceased sustained only one gunshot injury and no lathi or ballam were used by the accused/appellants in the commission of crime. The prosecution has also not been able to establish the unlawful assembly formed by the accused persons, the object of which was to commit the murder of deceased – Nakli Singh. Therefore, learned counsel has 9 submitted that the accused/appellants – Gariwar, Bharta, Balbeer and Gautam are entitled to acquittal. 19. We have considered the above submission of learned counsel for the accused/appellants on this point and we find force in it, for the reasons stated below. 20. Madanpal (P.W.1) and Baru (P.W.2) have specifically deposed that the accused/appellants - Gariwar, Balbeer and Gautam were having lathies in their hands while another accused - Bharta was having ballam and Siya Ram was carrying a country made pistol (Tamancha) at the time of occurrence and accused Siya Ram threatened – complainant as to why he was going to lodge the report against them and fired at Nakli which hit in the stomach of Nakli. No overt act has been assigned to the other accused persons. These witnesses have not deposed in their statements that these accused used their lathies and ballam in the incident in order to kill the deceased - Nakli. Even they did not raise alarm and exhorted accused Siyaram to kill the deceased. The prosecution has not been successful in establishing the common object of these accused/appellants for commissioning of crime. 21. Further, the prosecution case is fully corroborated by the medical evidence, as postmortem of the deceased was conducted by Dr. Y.S. Bisht (P.W.5) in the District Hospital, Haridwar on 05.08.90 at 03.15 p.m. and he found a gunshot wound of entry, 4cm X 3cm inside the stomach. There was no blackening and tattooing around the wound. Besides the above gunshot wound no other injury was found on the body of the deceased. In the aforesaid circumstances, it is quite clear that accused – Siya Ram has played an active role in the 10 commission of murder of deceased – Nakli and other co- accused did not participate in the commission of the crime. 21. In view of the aforesaid discussion, we are of the view that the learned Sessions Judge has committed a manifest error in convicting all the accused/appellants. We find that accused – Siyaram has committed the murder of deceased – Nakli and he has rightly been convicted for the offence punishable under Sections 148/302 I.P.C. His conviction and sentence awarded by the learned Additional Sessions Judge is liable to be affirmed. However, accused - Gariwar, Bharta, Balbeer and Gautam are entitled for acquittal. 22. In view of the above observations, the appeal filed on behalf of the accused - Gariwar, Bharta, Balbeer and Gautam is allowed. The accused/appellants - Gariwar, Balbeer and Gautam are acquitted for the charge punishable under Sections 147/302/149 of I.P.C. and accused – Bharta is acquitted for the offence punishable under Section 148/302/149 of I.P.C. and the sentence awarded to them by the court below are also set aside. All these accused persons are on bail. Their bail bonds are cancelled and sureties are discharges. They need not surrender. 23. However, the appeal filed by accused – Siya Ram is hereby dismissed. His conviction and sentence awarded by the learned Additional Sessions Judge is hereby confirmed. 24. The accused – Siya Ram is on bail. His bail is cancelled. He shall be taken into custody forthwith to serve out the sentence awarded against him. 11 25. Let the copy of this judgment along with the record of the case be sent to the court below for compliance. The court below will give compliance report within two months from the date of the receipt. (Nirmal Yadav, J.) (B.C. Kandpal, J.) March 10, 2010 ASWAL