IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 153 of 2005 1. Naresh S/o Charan Singh 2. Shyam Singh S/ Genda Both R/o village Rampur Raighati, P.S. Laksar District-Haridwar. ………. Appellants Versus State of Uttaranchal ……….. Respondent Present : Sri M.S. Pal, Senior Advocate assisted by Sri Deepak Bisht, learned counsel for the appellant no. 1. Sri Suresh Kumar Mishra, Amicus Curiae for the appellant no. 2. Sri S.S. Adhikari, learned A.G.A. for the State/respondent. Along with Criminal Jail Appeal No. 175 of 2005 Shyam Singh, son of Genda, R/o village Rampur Raighati, P.S. Laksar District-Haridwar. ………. Appellant. Versus State of Uttaranchal …………Respondent Present : Sri Suresh Kumar Mishra, Amicus Curiae for the appellant. Sri S.S. Adhikari, learned A.G.A. for the State/respondent. Hon’ble Prafulla C. Pant, J. Hon’ble Nirmal Yadav, J. Both these appeals are directed against judgment and order dated 05.09.2005 passed by Additional Sessions Judge/1st Fast Track Court, Roorkee in Sessions Trial No. 392 of 2001 and Sessions Trial No. 393 of 2001 whereby the accused appellants Naresh and Shyam Singh have been convicted under section 302 IPC read with section 34 IPC. Accused appellant Naresh has been further convicted under section 25 of 2 the Arms Act, 1959 and each of the convicts have been sentenced to imprisonment for life and also directed to pay the fine of Rs. One lakh under section 302 IPC read with section 34 IPC. Accused Naresh has been further sentenced to rigorous imprisonment for a period of two years and also directed to pay the fine of Rs.1000/- under section 25 of the Arms Act, 1959. 2. Heard learned counsel for the parties and perused the record. 3. Prosecution story, in brief, is that complainant Natthu Singh (PW1) made a report at police station Laksar on 14.06.2001 at about 04.40 p.m. stating that on the said date at about 3.00 p.m. in front of shop of one Daya Ram, accused/appellants Naresh and Shyam Singh were sitting under influence of liquor. When Kamal (deceased) reached there to purchase some medicines from the shop of Daya Ram, the accused appellants asked Kamal to buy liquor for them. On being not obliged, accused Naresh fired a shot from a country made pistol at Kamal, who after receiving injuries fell down. Thereafter, accused Naresh took up scissor and Shyam Singh armed with knife, inflicted injuries again and again on injured Kamal who died on the spot. On hearing the sound of fire arm shot, many persons got collected there, on which two accused ran away. Complainant PW1 Nathu Singh, who witnessed the incident, lodged first information report (exhibit A- 1). On the basis of said report, police registered crime No.127/2001 relating to the offence punishable under 3 section 302 IPC read with section 34 IPC against two accused Naresh and Shyam Singh. The investigation was initially taken up by PW11 Sub Inspector Atar Singh, who went to the spot along with other police officials. He prepared site plan, took the dead body of Kamal in his possession, prepared inquest report (exhibit A-16), police form No. 13 (exhibit A-17), sketch of dead body (exhibit A-18), sample of seal (exhibit A- 19) and letter to the Chief Medical officer (exhibit A- 20). The dead body was sent in a sealed condition for postmortem examination. PW3 Dr. O. P. Sharma conducted postmortem examination on 15.06.2001 at about 01.30 p.m. on the dead body of Kamal (deceased) and prepared autopsy report (exhibit A-2). He recorded two fire arm injuries and as many as 10 incised wounds. In the opinion of the Medical Officer, deceased had died due to shock and haemorrhage as a result of ante mortem injuries. The investigation was taken up on 15.06.2010 by PW9 Sub Inspector Darban Singh Panwar, who further interrogated the witnesses, arrested the accused persons and recovered the knife and blood stained shirt from the possession of accused Shyam Singh. He prepared necessary recovery memos and also registered crime No. 131/2001 relating to the offence punishable under section 25 of the Arms Act against accused Naresh. The said crime was investigated by PW10 Sub Inspector Jawahar Singh Rathor. In both the cases, after completion of investigation chargesheets were filed. Chargesheet (exhibit A-9) was filed against both the accused Naresh 4 and Shyam Singh for their trial in respect of offence punishable under section 302 IPC. In respect of offence under section 25 of the Arms Act, chargesheet (exhibit A-11) was filed against accused Naresh for his trial. 4. The Magistrate, on receipt of the chargesheets, after giving necessary copies to the accused as required under section 207 of Cr.P.C., committed the case to the court of Sessions for trial. The Sessions Judge, Haridwar on 19.11.2001 framed charge of offence punishable under section 302 IPC read with section 34 IPC against accused Naresh and Shyam Singh, who pleaded not guilty and claimed to be tried. A separate charge was framed against accused Naresh in respect of offence punishable under section 25 of Arms Act, 1959, to which he pleaded not guilty and claimed to be tried. On this, prosecution got examined PW1 Natthu (complainant), PW2 Maharaj Singh (witness of inquest report), PW3 Dr. O.P. Sharma, who conducted the postmortem examination, PW4 Jagveer Singh, (another witness of inquest report), PW5 Dinesh (declared hostile), PW6 Head Constable Vinod Kumar, PW7 Karan Pal, PW8 Sub Inspector Nanhe Ram Sagar, PW9 Sub Inspector Darban Singh Panwar, who investigated the crime relating to murder, PW10 Sub Inspector Jawahar Singh Rathor, who investigated the crime relating to offence punishable under section 25 of Arms Act, 1959, PW11 Sub Inspector Atar Singh, who started the investigation and PW12 Constable Dev Raj Singh. The oral and documentary evidence was put to the accused under section 313 of Cr.P.C. in 5 reply to which they alleged the same to be false. However, no evidence in defence was adduced. The trial court after hearing the parties found that accused appellants Naresh and Shyam Singh are guilty of the charge of offence punishable under section 302 IPC read with section 34 IPC, and after hearing them on sentence each one of the convicts sentenced to imprisonment for life and also directed to pay fine of Rupees One Lakh each. The Trial Court further found accused Naresh guilty of charge of offence punishable under section 25 of Arms Act, 1959 and sentenced him to rigorous imprisonment for two years and also directed to pay fine of Rs. 1000/-. Aggrieved by the said judgment and order dated 05.09.2005 passed by Additional Sessions Judge, Roorkee, in sessions trial no. 392 of 2001 and sessions trial no. 393 of 2001, these two appeals are filed on behalf of convicts (one appeal was filed jointly by the appellants which is registered as criminal appeal no. 153 of 2005, another appeal was received of convict Shyam Singh through Superintendent of Jail which is registered as criminal jail appeal no. 175 of 2005). Both the appeals are connected, heard together, and are being disposed of by this common judgment. 5. Before further discussion, we think it just and proper to mention the ante mortem injuries recorded by PW3 Dr. O.P. Sharma, who conducted postmortem examination on the dead body of Kamal on 15.06.2001 at 01.30 p.m. and prepared autopsy report (exhibit A- 2). The same are being reproduced below: 6 “i. Firearm wound of entry of radius 1.0 cm, left parietal region of head 5.0 cm. away from left ear. Margin inverted. ii. Incised wound 3.0cm X 1.0 cm. X muscle deep on left temporal region. iii. Incised wound 3.0 cm X 2.0 cm on left side of face. iv. Incised wound 3.0cm X 0.6cm X muscle deep on left of chest 10 cm above the left nipple in 11 O’clock position. v. Incised wound 4 cm X 1.5 cm X muscle deep on left axilla over left forearm. vi. Incised wound 2 cm X 1cm X muscle deep on the left side of the chest 5 cm away from the nipple vii. Incised wound 3cm. X 0.8 cm. X muscle deep on the left side of chest 5.5 cm. away from the nipple. viii. Incised wound 2cm X 1 cm X muscle deep on left fore arm. ix. Multiple incised wounds 11 in numbers on left side of chest and stomach of size 4.5 cm. X 3 cm to 1 cm X 0.8 cm. The injury of the left side of chest was cavity deep. Rest injuries were muscle deep. x. Incised wound 3 cm X 1.2 cm. X muscle deep on the scapula region. 7 xi. Incised wound 2 cm. X 1 cm. X muscle deep 6 cm. below chest on the right side of injury no. 10. xii. Fire arm wound of exit 3 cm. X 2 cm. on the right side of the face corresponding to injury no. 1.” The medical officer, after conducting the postmortem examination, opined that deceased died due to shock and haemorrhage as a result of ante mortem injuries. The above mentioned injuries read with the statement of PW3 Dr. O.P. Sharma prove that Kamal, son of complainant, died a homicidal death. The medical officer has further opined that death could have been caused on 14.06.2001 at about 03.00 p.m. Now, this court has to see as to who has committed the murder of deceased. 6. PW1 Natthu (complainant) has stated on oath that it was 14.06.2001 at about 03.00 p.m. when his son Kamal had gone to the shop of one Daya Ram, where accused Shyam Singh and Naresh, who belong to the same village, were sitting in a drunken state. They asked Kamal to provide liquor to them. On being not obliged, accused Naresh fired shot from the country made pistol, which hit on the face of Kamal, who fell down. Thereafter, accused Naresh with scissor, and accused Shyam Singh with knife, inflicted injuries on the person of Kamal, who died on the spot. The witness has further stated that many other persons also got collected at the spot. PW1 Natthu further 8 stated that he lodged the first information report (exhibit A-1), after getting it scribed from Daya Ram and gave it at police station Laksar. The incident in the present case is a day light incident. PW1 Natthu belongs to the place where the incident has occurred, as such, his presence at the spot is not unnatural. The nature of the offence shows that the deceased was murdered brutally and it was day light incident in the village. The first information report is not delayed one. In these circumstances, we are of the view that testimony of PW1 Natthu cannot be doubted in the present circumstances of the case. In the cross examination, he has further clarified that in his presence accused Naresh fired shot and before two accused (Naresh and Shyam Singh) inflicted with scissor and knife. 7. Learned counsel for the appellants drew attention of this court to the case of Jagdish Prasad Vs. State of M.P. 1995 SCC (Criminal) 160, and it is pleaded that there is no corroboration of the testimony of the complainant, as such his testimony should not be believed. We have gone through the case referred on behalf of the appellants. In the above mentioned case, the witness was inimical to the accused but in the present case no such enmity is said to have been there, as such even if, there is no corroboration from any other eye witness, the testimony of PW1 Natthu cannot be disbelieved. It is also contended on behalf of the appellants that no local witness of village Rampur was taken by the Investigating Officer at the time of 9 recovery of pistol from accused Naresh. The evidence adduced by PW9 Sub Inspector Darban Singh Panwar shows that the recovery of pistol was made in the presence of police officials and two public witnesses namely Gulab Singh and Dinesh (PW5). No doubt, Dinesh has turned hostile. But as far as the fact as to why the witnesses from village Rampur are not taken at the time of recovery, there is sufficient explanation given by PW9 Sub Inspector Darban Singh Panwar that he received information about the accused in village Bhikampur from where he took witnesses with him, as such recovery in our opinion cannot be doubted on that count. 8. It is also pointed out on behalf of appellants that in the first information report the complainant has alleged that fire was shot from close range at Kamal, but PW3 Dr. O.P. Sharma states that fire arm injury could have been caused from a distance of 6 feet. In this regard, we examined the statement of PW1 Natthu and found that he has stated that accused Naresh after taking out country made pistol fired at the face of the deceased. He has not stated that fire was shot from a close range. The nature of the injuries mentioned in the autopsy report (exhibit A-2) shows that there was no blackening and tattooing in the fire arm injury of entry, as such, it cannot be said that fire was shot by accused Naresh from close range. When eye witness has made statement in this regard, he simply made it, as he observed and there could not be definite measurement as to whether fire arm was shot from a 10 distance of 4 feet or 6 feet. On the ground of this minor discrepancy, otherwise the natural and trustworthy testimony of PW1 Natthu cannot be disbelieved. 9. For the reasons discussed above and after going through the evidence on record, we do not find any illegality committed by the trial court in convicting the accused Naresh and Shyam Singh in respect of offence punishable under section 302 read with section 34 IPC. However, on the point of sentence, the fine of Rupees One Lakh appears to be excessive. Considering the facts and circumstances of the case, we modify the sentence awarded by the trial court in respect of offence punishable under section 302 IPC read with section 34 IPC to imprisonment for life and to pay fine of Rs. 10,000/- against each of the accused appellants, and in default of payment of fine, the defaulter accused shall undergo rigorous imprisonment for a further period of one year. We do not find any illegality committed by the trial court in recording the conviction and sentence against accused Naresh in respect of offence punishable under section 25 of Arms Act, 1959. Accordingly, both the appeals are dismissed with modification in fine as above. Let the copy of this order be sent to Superintendent of District Jail where convicts are undergoing the sentence. Lower court record be sent back. (Nirmal Yadav, J.) (Prafulla C. Pant, J.) 27.08.2010 SKS