IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 25 of 2001 1. Balam Singh S/o Sri Trilok Singh R/o Village Urida, Patti Gujuru, Tehsil Dhumakot, Distt. Pauri Garhwal. 2. Dhyan Singh S/o Sri Sansar Singh R/o Village Degoli, Patti Gujuru, Tehsil Dhumakot, Distt. Pauri Garhwal. ...…………. Appellants Versus State of Uttaranchal (now State of Uttarakhand) ...…………. Respondent Mr G.S. Negi, Advocate (Amicus Curiae), present for the appellants. Mr. Amit Bhatt, Addl. Government Advocate, present for the State. Coram : Hon’ble Prafulla C. Pant, J. Hon’ble Servesh Kumar Gupta, J. Prafulla C. Pant, J. (oral) This appeal, preferred under Section 374 of the Code of Criminal Procedure, 1973 (for short Cr.P.C.), is directed against the judgment and order dated 16.12.2000, passed by Sessions Judge, Pauri Garhwal, in Sessions Trial No. 79 of 1996, whereby said court has convicted the accused / appellants, namely Dhyan 2 Singh and Balam Singh under Section 302 read with Section 34 of the Indian Penal Code, 1860 (for short I.P.C.), and sentenced each one of them to imprisonment for life. They have been further convicted under Section 201 read with Section 34 of I.P.C., and each one of them has been sentenced to rigorous imprisonment for a period of three years and directed to pay fine of ` 1,000/-. 2) Heard learned Amicus Curiae appearing on behalf of the appellants and learned Addl. Government Advocate for the State, and perused the lower court record. 3) Prosecution story, in brief, is that P.W. 1 Satyapal Singh Rawat (complainant), resident of Village Padsoli Malli, Gujuru, lodged first information report (Ext. A –1) with Patti Patwari of Degoli Khal, Tehsil Dhumakot, District Pauri Garhwal. (In Uttarakhand hills vide U.P. Government Notification No. 494 / VIII – 418 –16 dated 7th March 1916, certain revenue officials are given police powers). In said report it is stated that the complainant got information on 07.07.1996, that his nephew Amarpal Singh (deceased) has been murdered on 06.07.1996 in Degoli Khal. On receiving said information he proceeded to said place where he was told by P.W. 2 Mukand Singh and one Karan Bahadur (a Nepalese labourer) that on 06.07.1996, at 06:00 P.M., they (P.W. 2 Mukand Singh 3 and Karan Bahadur) along with Amarpal Singh, on foot, reached Degoli Khan, and took tea in the stall of accused / appellant Dhyan Singh. Amarpal Singh gave a currency note of ` 100/- to Dhyan Singh towards payment for the tea taken and demanded refund of the balance over which the two (Dhyan Singh and Amarpal Singh) started quarrelling. Soon thereafter, accused Dhyan Singh assaulted Amarpal with a broken glass bottle, and Balam Singh, who was also present in the tea stall, took a ‘DANDA’ and assaulted Amarpal Singh. P.W. 2 Mukand Singh and Karan Bahadur attempted to mediate, but they were pushed out of the shop, and after sometime the two accused / appellants Dhyan Singh and Balam Singh dragged dead body of Amarpal Singh towards the road. Frightened on seeing the incident, P.W. 2 Mukand Singh and Karan Bahadun (a Nepalese labourer) ran towards Mandoli. On this version of the story mentioned in the first information report (Ext. A –1), the Patwari of Degoli Khal / Gujuru IV, registered Crime No. 23 of 1996, relating to offences punishable under Section 302 / 34 and 201 of I.P.C. against the accused / appellants Dhyan Singh and Balam Singh. Crime was investigated by P.W. 8 Dhanesh Chand Budakoti, Patwari of Gujuru IV / Degoli Khal, who went to the spot, took dead body of Amarpal Singh in his possession, and prepared inquest report (Ext. A –8) on 07.07.1996, at 03:00 P.M. He further prepared sketch of dead body (Ext. A –9), police form No. 13 (Ext. A –10), letter to the Chief Medical 4 Superintendent (Ext. A –11), and sent the dead body for postmortem examination, in sealed condition. P.W. 5 Dr. J.K. Goyal conducted postmortem examination on dead body of Amarpal Singh on 09.07.1996, at 08:00 A.M. He recorded one incised wound, two contusions and two abraded contusions in the autopsy report (Ext. A –2) as ante mortem injuries, and opined that the deceased had died due to shock and haemorrhage as a result of ante mortem injuries. The Investigation Officer interrogated the witnesses, inspected the spot, and prepared site plan. Later the investigation was transferred to regular police, and P.W. 9 Sub Inspector Bhagirath Sharma concluded the investigation, and submitted charge sheet (Ext. A –19) against the two accused, namely Balam Singh and Dhyan Singh, for their trial in respect of offences punishable under Section 302 / 34 and 201 of I.P.C. 4) On receipt of the charge sheet, it appears that after giving necessary copies to the accused as required under Section 207 of Cr.P.C., the case was committed to the court of Sessions for trial. Learned Sessions Judge, Pauri Garhwal on 02.01.1997, after hearing the parties, framed charge of offences punishable under Section 302 / 34 of I.P.C. and 201 / 34 of I.P.C. against the two accused, namely Dhyan Singh and Balam Singh, who pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1 Satyapal Singh Rawat (complainant); P.W. 2 Mukand Singh 5 (eyewitness); P.W. 3 Jag Mohan Singh (who apprehended the two accused on 13.07.1996, and handed over to revenue police); P.W. 4 Narendra Mishra (who assisted Jag Mohan Singh in apprehending the two accused); P.W. 5 Dr. J.K. Goyal (who conducted the postmortem examination); P.W. 6 Darshan Singh (in whose presence the blood stained items were recovered from the tea stall of Dhyan Singh); P.W. 7 Pushkar (witness of recovery of DANDA used in the crime); P.W. 8 Dhanesh Chand Budakoti, Patwari (who started the investigation); and P.W. 9 Sub Inspector Bhagirath Sharma (who concluded the investigation). The oral and documentary evidence was put to the accused under Section 313 of Cr.P.C., in 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 the prosecution has successfully proved charge of offences punishable under Section 302 / 34 I.P.C., and one punishable under Section 201 / 34 of I.P.C. After hearing on sentence, each one of the convicts was sentenced to imprisonment for life under Section 302 / 34 of I.P.C., and rigorous imprisonment for a period of three years and fine of ` 1,000/- under Section 201 / 34 of I.P.C. Aggrieved by said judgment and order dated 16.12.2000, passed by Sessions Judge, Pauri Garhwal, in Sessions Trial No. 79 of 1996, this appeal is filed by the convicts. 6 5) Before further discussion, we think it just and proper to mention here the ante mortem injuries recorded by P.W. 5 Dr. J.K. Goyal in the autopsy report (Ext. A –2), after postmortem examination on the dead body of Amarpal Singh. The same are being reproduced below: “ i) Incised wound 6 cm X 1 cm X bone deep on right side neck, 5 cm below right ear. ii) Contusion 6 cm X 4 cm on back of right shoulder joint. iii) Abraded contusion 6 cm X 2 cm on back of left shoulder joint. iv) Multiple abraded contusions in an area 16 cm X 8 cm on back of both sides of chest (lower part). v) Abraded contusion 4 cm X 3 cm on inner aspect of right upper arm in the middle. vi) Contusion 6 cm X 7 cm on posterior lateral aspect of left elbow joint.” The Medical Officer after postmortem examination opined that the deceased had died due to shock and haemorrhage as a result of ante mortem injuries. P.W. 5 Dr. J.K. Goyal has stated that the deceased could have suffered injuries on 06.07.1996, at about 06:00 P.M. He has further stated that injury No. (i) alone was sufficient to cause death of the deceased which could have been caused by any sharp edged object like piece of glass. As to the other injuries, he 7 has stated that the same could have been caused by LATHI / DANDA. From the medical evidence on record it is established that Amarpal Singh has died homicidal death. Now, we have to examine whether accused / appellant Balam Singh and Dhyan Singh, with common intention committed murder of Amarpal Singh, or not. It is also to be examined whether to cause disappearance of the evidence the two accused / appellants dragged and threw the dead body down the road, or not. 6) P.W. 1 Stayapal Singh Rawat is a formal witness, who has lodged first information report (Ext. A –1) with the Patwari of the area, on receiving information about the incident. 7) P.W. 2 Mukand Singh is the star eyewitness of this case. He has stated that Amarpal Singh (deceased) was known to him as he was younger brother of Jag Mohan Singh (P.W. 3). This witness further states that on 06.07.1996, he (P.W. 2) along with Amarpal Singh (deceased) and one Nepalese labourer waited for conveyance in Kingori Khal, but when no conveyance could be seen, they proceeded on foot for Degoli Khal. They reached there in the evening, and to take rest they sat in the tea stall of accused Dhyan Singh, and took tea. Amarpal Singh (deceased) gave a hundred rupee currency note to accused Dhyan Singh towards payment for the tea, and demanded refund of the 8 balance, over which the two (Dhyan Singh and Amarpal Singh) started quarrelling, on which accused Dhyan Singh got further enraged and took broken piece of a glass bottle and gave a blow on the neck of Amarpal Singh. Accused / appellant Balam Singh, who was also sitting in the tea stall, participated in the crime from the side of Dhyan Singh, and assaulted the deceased with DANDA (baton). The witness (P.W. 2 Mukand Singh) identified the DANDA (Ext. 1) used in the crime, in the court. The witness has further stated that after the incident he saw Dhyan Singh and Balam Singh dragging body of Amarpal Singh down the road. The witness further states that he got frightened and went to his quarter in Mandoli. 8) The testimony of P.W. 2 Mukand Singh is natural and trustworthy. His deposition gets corroboration from the medical evidence on record, already discussed above. Apart from this, the evidence given by P.W. 2 Mukand Singh further gets corroboration from the recovery of blood stained items from the tea stall of Dhyan Singh in the presence of P.W. 6 Darshan Singh, and recovery of DANDA (baton) in the presence of P.W. 7 Pushkar. We think it relevant to mention here that from report (Ext. A –20) received from Forensic Science Laboratory, Agra, it is clear that blood stained soil, blood stained piece of tin, blood stained pieces of glass and blood stained currency note, contained human blood. 9 9) Having re-appreciated the evidence on record, we come to the conclusion that it is proved on the record that accused Dhyan Singh and accused Balam Singh, with common intention, committed culpable homicide by causing death of Amarpal Singh. 10) Learned Amicus Curiae appearing on behalf of the appellants argued that had the incident taken place in the manner suggested by the prosecution other witnesses of the vicinity could have come forward to support the prosecution story. Undoubtedly, the incident had taken place in Degoli Khal where there were other shops also in adjoining area, but it cannot be said that the other persons in other shops had opportunity to see what is happening inside the shop of Dhyan Singh. Only the persons who were in the tea stall of Dhyan Singh had the opportunity to see the incident. 11) Mr. G.S. Negi, learned Amicus Curiae appearing on behalf of the appellants further submitted that assuming for a moment that the incident had taken place in the manner suggested by the prosecution, even then the act on the part of the accused / appellants does not constitute culpable homicide amounting to murder. We have considered the contention of learned Amicus Curiae appearing for the appellants. Exception 4 mentioned in Section 300 of I.P.C. provides that 10 culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken under advantage or acted in a cruel or unusual manner. Admittedly, there was no enmity of the accused with the deceased. Rather, the deceased had taken tea in the stall of accused Dhyan Singh. It is a case of sudden fight over payment of balance amount to the deceased, who is said to have given a hundred rupee currency note towards payment of tea taken by him and two others (Mukand Singh and Karan Bahadur). None of the two accused, namely Balam Singh and Dhyan Singh, has used any deadly weapons like fire arms or knives. In the circumstances, we agree with the submission of learned Amicus Curiae that it is a case of culpable homicide not amounting to murder. That being so, we are of the view that the accused / appellants Balam Singh and Dhyan Singh should have been held guilty of charge of offence punishable under Section 304 read with Section 34 of I.P.C., and Section 201 read with Section 34 of I.P.C. It is proved on the record from the statement of P.W. 2 Mukand Singh that dead body was dragged by the two accused from the shop where the incident occurred and the same was thrown down the road. 12) For the reasons as discussed above, this appeal is partly allowed. The conviction and sentence recorded by the trial court against accused / appellants 11 Balam Singh and Dhyan Singh, relating to offence punishable under Section 302 read with Section 34 of I.P.C., is set aside. Instead, each one of them is convicted under Section 304 Part I of I.P.C., and sentenced to rigorous imprisonment for a period of seven years. Conviction and sentence of the two accused / appellants under Section 201 / 34 of I.P.C. is maintained. However, it is provided that both the sentences shall run concurrently. The accused / appellants are on bail. Their bail is cancelled. Lower court record be sent back to make the accused / appellants serve out the sentence as modified by this court. (Servesh Kumar Gupta, J.) (Prafulla C. Pant, J.) Dt. April 27, 2011. H. Negi 12 14