IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Jail Appeal No. 515 of 2001 (Old No. 401 of 1991) Bhagwan Pahari alias Bhawan Singh …………………Appellant. Versus State ……………..Respondent. Smt. Nishat Intezar, learned Amicus Curiae for the appellant. Sri Harish Chandra Pujari, learned Additional Government Advocate for the State. Hon’ble Prafulla C. Pant, J. Hon’ble Dharam Veer, J. [Oral- Prafulla C. Pant, J.] This appeal, preferred under Section 374 of Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), is directed against the judgment and order dated 27.01.1988, whereby accused / appellant Bhagwan Pahari alias Bhawan Singh is convicted under Section 302 of Indian Penal Code, 1860 (hereinafter referred as I.P.C.), and sentenced to undergo imprisonment for life. (2) Heard learned Amicus Curiae for the appellant and learned Additional Government Advocate for the State. (3) Prosecution story in brief is that on 25.08.1986 at about 4 P.M., Nand Lal (deceased), resident of Village Bhuria Tharu, had gone towards bank of river Lohia for taking his she buffalo from there. Ramji (P.W.3) had gone there to take back his bullocks. On their way back they saw wife of Bhagwan Pahari alias Bhawan Singh (accused / appellant) causing damage to the paddy crop of Inder Singh (P.W.2). Nand Lal (deceased) objected to it on which she replied that it is not his (Nand Lal’s) field. Nand Lal told her that the field belongs to his brother. On this, wife of accused started hurling abuses at Nand Lal and thereafter left the place and went inside her house. From there accused Bhagwan Pahari alias Bhawan Singh armed with sickle came out and dragged Nand Lal, who was riding she buffalo, and inflicted injuries with the sickle. Inder Singh (P.W.2), who was going towards his nearby field raised alarm. On this, Gauri Singh (P.W.1) rushed towards the spot and saw Nand Lal lying with bleeding injuries. Gauri Singh (P.W.1) is cousin of Nand Lal (deceased). Within few minutes of being taken inside the house, Nand Lal succumbed to the injuries. Gauri Singh (P.W.1) thereafter lodged the First Information Report (Ext.A-1) with Police Station Khatima at about 7.30 P.M., which is registered as Crime No. 184 of 1986 against accused / appellant Bhagwan Pahari alias Bhawan Singh, relating to offence punishable under Section 304 I.P.C.. The investigation was taken up by Sub Inspector Gaindan Lal Pawar (P.W.5), who interrogated complainant Gauri Singh and witnesses Inder Singh and Ramji. Next day (i.e. 26.08.1986) morning the Investigating Officer went to the village and took the dead body of Nand Lal in his possession. He got prepared the inquest report (Ext.A-6) at about 6.30 A.M.. He also got prepared sketch of dead body (Ext.A-7), Police Form No. 13 (Ext.A-8), letter (Ext.A-9) addressed to Medical Officer in-charge of the District Hospital, Pilibhit, requesting him to conduct the postmortem examination on the dead body. (Boundaries of Khatima Tehsil are adjoining to District Pilibhit). Dr. M.L. Sharma, Medical Officer of District Hospital, Pilibhit, conducted the postmortem examination on 26.08.1986 at about 4 P.M. and prepared the autopsy report (Ext.A-14). He found as many as nine ante mortem injuries on the dead body of the deceased and opined in his report that the deceased (Nand Lal) had died due to coma as a result of ante mortem injuries. On 26.08.1986, meanwhile Investigating Officer further investigated the crime and prepared site plan (Ext.A-11). After arrest of the accused Bhagwan Pahari alias Bhawan Singh, the Police also recovered sickle, used in the crime and a recovery memo (Ext.A-3) was prepared. Also, blood stained soil and simplesoil was taken from the place of incident and recovery memo (Ext.A-2) was got prepared. A site plan (Ext.A-12) of the place from where sickle was recovered, was also prepared by the Investigating Officer. After completion of investigation the Investigating Officer submitted charge sheet (Ext.A-13) against accused Bhagwan Pahari alias Bhawan Singh, relating to offence punishable under Section 304 I.P.C.. (4) The Magistrate on receipt of the charge sheet after giving necessary copies to the accused as required under Section 207 of Cr.P.C., appears to have committed the case to the court of Sessions for trial. On 19.12.1986, Sessions Judge, Nainital, after hearing the parties framed charge of offence punishable under Section 302 I.P.C. against the accused Bhagwan Pahari alias Bhawan Singh who pleaded not guilty and claimed to be tried. (Now the place of incident within the limits of Khatima falls in District Udham Singh Nagar, carved out from District Nainital). Prosecution in support of their case got examined P.W.1 Gauri Singh, complainant, P.W.2 Inder Singh, an eyewitness, P.W.3 Ramji (any eyewitness, declared hostile), P.W.4 Kishori Singh, witness of recovery of sickle and P.W.5 Gaindan Lal Pawar, the Investigating Officer. Formal proof of the post mortem report was dispensed with by the defence counsel, as the genuineness of said document is admitted. Oral and documentary evidence was put to the accused under Section 313 Cr.P.C., in respect to which he alleged the same to be false and it is alleged that Police demanded Rs.15,000/- from him and when he failed to pay the same he was implicated in the crime and Ramji was made a witness. However, no evidence in defence is adduced on behalf of the accused. After hearing the parties the trial court found that accused Bhagwan Pahari alias Bhawan Singh committed murder of Nand Lal and convicted him under Section 302 I.P.C.. After hearing on sentence the convict (present appellant) was sentenced to undergo imprisonment for life. Aggrieved by said judgment and order dated 27.04.1988, passed by learned Sessions Judge, Nainital, this appeal was moved by the appellant from jail in the year 1988 to the Allahabad High Court. Said Court admitted the appeal after summoning the record, on 07.03.1991. Later the accused / appellant was granted bail by Allahabad High Court on 03.07.1991. The appeal is received by this Court under Section 35 of U.P. Reorganisation Act, 2000, for its disposal. (5) Before further discussions we think it proper to mention the ante mortem injuries found on the dead body of the deceased Nand Lal at the time of postmortem examination by Dr. M.L. Sharma. On 26.08.1986 at about 4 P.M. and recorded in the document (Ext.A-14). The formal proof of the document is dispensed with by the defence and genuineness is admitted. The injuries mentioned in the autopsy report are being reproduced below:- (i) Incised wound measuring 3.5cm x through and through cutting the cartilage on the left ear. (ii) Incised wound measuring 4cm x 1 cm x brain deep with fracture of skull bone with 3 cm cut located on the left side of head about 6 cm on the left ear at 12 O’ clock position left to right in direction with haematoma underneath the injury. (iii) Incised wound measuring 6cm x 1c x scalp deep on theleft side back of head at 2 O’clock position. (iv) Incised wound measuring 4cm x 1cm x scalp deep at sub occipital region from side to side. (v) Incised wound measuring 5cm x 1cm x scalp deep over occipital region 1.5 cm above injury no. 4. (vi) Incised wound measuring 2cm x 1cm x muscle deep vertical in direction on the right side of fore head 1.75 above the outer end of right eye brow. (vii) Incised wound measuring 1cm x 5cm x muscle deep at the right cheek 3 cm below at outer side or fight eye at 8 O’ clock position tailing downwards. (viii) Incised wound measuring 5cm x 1cm x bone deep in the middle or right ear tailing towards mastoid process with out in the cartilage of the ear. (ix) Incised wound measuring 2.5cm x 1cm x bond deep between mastoid process and angle of mandible. The Medical Officer found fracture 3cm in size underneath injury no. 2. He also found haematoma of 2.5 cm thickness between brain and meninges underneath said injury no. 2. Cause of death, according to the Medical Officer, who conducted the postmortem examination, is coma on account of ante mortem injuries. It is also bserved in the autopsy report (Ext.A-14) that the dead body was one day old. From the above medical report it is clear that Nand Lal has died homicidal death on 25.08.1986. Now the question is who has caused his death. (6) P.W.1 Gauri Singh, complainant, has stated that on 25.08.1986 at about 4P.M., his brother Nand Lal (deceased) had gone to take his she buffalo from the jungle near Lohia river. When he was returning back with she buffalo he was injured by accused Bhagwan pahari. On hearing shouts this witness (Gauri Singh) rushed to the spot and saw witnesses Ramji (P.W.3) and Inder Singh (P.W.2) present. He also saw that Nand Lal lying injured. He (Nand Lal) was taken inside the house, but he succumbed to the injuries within few minutes. Thereafter according to this witness P.W.1 Gauri Singh he got scribed the First Information Report (Ext.A-1) on that very day and lodged it with Police station Khatima at about 7.30 P.M.. (7) P.W.2 Inder Singh is the star eyewitness, who has narrated the prosecution story in full. He states that on the day of incident he was going towards his field when Nand Lal was coming with his she buffalo from the side of Lohia river towards his house. He further states that Ramji (P.W.3) with his bullock was also following him. P.W.2 Inder Singh further narrates the story by saying that when Nand Lal reached near his (Inder Singh’s) field, he (Nand Lal) objected to wife of accused Bhagwan Pahari as to why she was causing damage to paddy crop. P.W.2 Inder Singh further states that when he reached near Govind Singh’s field he saw Bhagwan Pahari (accused / appellant) inflicting injuries with Darati (sickle) on the person of Nand Lal after dragging him on the ground. The witness further states that he shouted for help. On this, Bhagwan Pahari left Nand Lal injured at the spot. According to this witness, thereafter, family members of Nand Lal came out of their house and took him inside the house P.W.2 Inder Singh further states that Nand Lal was bleeding from his head. He succumbed to the injuries within 8-10 minutes. (8) Prosecution story narrated by The statement of P.W.2 Inder Singh that accused / appellant Bhagwan Pahari caused death of Nand Lal not only gets corroboration from ante mortem injuries quoted above but also gets further corroboration from the statement of P.W.4 Kishori Singh, who states that on the next day of incident after the arrest of accused / appellant Bhagwan Pahari, Police recovered on his pointing out the sickle, used in the crime. This witness has proved the recovery memo (Ext.A-3) prepared by the Police. P.W.4 Kishori Singh has further stated that blood stained soil and simple soil were also taken by the Police and recovery memo (ExtA-2) was prepared. P.W.5 Gaindan Lal, the Investigating Officer has also stated on oath that after the investigation was entrusted to him, he interrogated the witnesses, next day took the dead body in his possession and prepared the inquest report (Ext.A-6), P.W.5 Gaindan Lal has further proved the check report (Ext.A-4) and copy of extract of General Diary (Ext.A-5) prepared by Head Constable Devendra Pal. The witness has further stated that he prepared the documents, sketch of the dead body (Ext.A-7), Police Form No. 13 (Ext.A-8), letter to Medical Officer, Pilibhit (Ext.A-9). The witness has further sated that he took the blood stained soil and simple soil from the place of incident and prepared the memorandum (Ext.A-2). The Investigating Officer has further stated that he arrested the accused / appellant Bhagwan Pahari at about 3.30 P.M. on the next day of the incident. From near the Lohia river and recovered sickle (Ext.1) used in the crime at his pointing out and prepared the report Ext. A-3. (9) From the above evidence on record, this Court finds that the prosecution has been successful in proving the charge of offence punishable under Section 302 I.P.C. against the accused / appellant Bhagwan Pahari alias Bhawan Singh. (10) Learned Amicus Curiae assisting the Court on behalf of the appellant argued that the prosecution story even if treated to be proved, it is covered under Sections 304 I.P.C. and not under Section 302 I.P.C.. But we do not find that there is any evidence on record or that there was sudden fight between the deceased and the accused / appellant. Nature of injuries are not such on the basis of which it can be said that the accused has no intention to cause death of the deceased rather there are as many as nine incised wounds caused by giving one after another blows on the head of the deceased as such we do not see any force in the argument advanced on behalf of the appellant that the offence constitutes ingredients of one punishable under Section 304 I.P.C.. (11) It is also contended on behalf of the appellant that in the post mortem examination the stomach of the deceased was found empty and the incident could not have taken place at 4 P.M. as suggested by the prosecution. On close scrutiny of the evidence on record, we find that on being asked by the defence, P.W.1 Gauri Singh has sated that his brother (deceased) Nand Lal had gone towards jungle without having meals. It has also come on record that the villagers take their food in the morning at about 8-9 A.M. and thereafter they take their meals at 5 P.M.. Since the incident had taken place at about 4 P.M. as such if the Medical Officer found the stomach of the deceased empty it does not create any doubt in the truthfulness of the prosecution story. (12) Lastly attention of this Court, on behalf of the appellant, is drawn to the principle of law laid down in State of Punjab Vs. Hardeep Singh & others 2002 (3) Crimes 232 and it is submitted that testimony of single witness should not be believed. We have gone through the said case law and found that the facts and circumstances of the two cases are totally different. Where the presence of the witness is natural and his testimony is trustworthy, the conviction can be based on his testimony. Merely for the reason that one of the witnesses has not supported the prosecution story cannot be a ground to discard the evidence of another eyewitness whose testimony remains unshaken even after his cross-examination. (13) For the reasons as discussed above, we are of the view that there is no force in the appeal. The same is liable to be dismissed. The appeal is dismissed. The accused / appellant is on bail. His bail is cancelled. The Registry is directed to send the lower court record back to the trial court to make the convict Bhagwan Pahari alias Bhawan Singh, serve out the sentence awarded to him. (Dharam Veer, J.) (Prafulla C. Pant, J.) 07.04.2008 NS