IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 485 of 2001 (Old No. 946 of 1995) Lechu Singh S/o Baishakh Singh R/o Village Jamola, P.S. Muni Ki Reti, District Tehri Garhwal. ...…………. Appellant Versus The State ...…………. Respondent Mr. Lokendra Dobhal, Advocate present for the appellant. Mr. Tanuj Semwal, Asstt. Govt. Advocate for respondent-State. Coram : Hon’ble Prafulla C. Pant, J. Hon’ble B. S. Verma, J. Prafulla C. Pant, J. (Oral) This appeal, preferred under Section 374 of the Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), is directed against the judgment and order dated 10.05.1995, passed by learned Sessions Judge, Tehri Garhwal, in Sessions trial No. 14 of 1992, whereby the accused / appellant Lechu Singh has been convicted under Section 302 of the Indian Penal Code, 1860 (hereinafter referred as I.P.C.), and sentenced to imprisonment for life. He is further convicted under Section 27 of the Arms Act, 1959, and sentenced to 2 rigorous imprisonment for a period of one year on that count. 2) Heard learned counsel for the parties and perused the trial court record. 3) Prosecution story, in brief, is that on 29.09.1991, at about 08:30 P.M., P.W. 2 Sauna Devi (wife of Gyan Singh) raised alarm in village Jamola, within the limits of police station Muni-Ki-Reti, on which her neighbours including P.W. 4 Daleb Singh, Ratan Singh and Jabar Singh rushed towards house of Gyan Singh (deceased). On reaching there they saw Gyan Singh lying wounded, in a pool of blood. P.W. 2 Sauna Devi told the villagers that accused / appellant Lechu Singh has fired shot at her husband and ran away. Due to darkness in night the villagers could not take the injured from the village and it is only on 30.09.1991, at early hours, they took him to the nearest hospital Narendra Nagar where he was admitted at 07:45 A.M. Considering his critical condition, the doctors at Narendra Nagar referred the injured (Gyan Singh) to Doon Hospital, Dehradun, where he was taken on 08:30 P.M. and declared brought dead. Thereafter, the dead body of Gyan singh was taken back to the village and a first information report (Ext. A –1) was lodged by P.W. 1 Bachan Singh with the police station Muni-Ki- Reti, at 01:00 A.M., on 01.10.1991. On the basis of said report, the police prepared the check report (Ext. A 3 –3) and registered crime No. 58 of 1991, relating to offence punishable under Section 302 of I.P.C., and one punishable under Section 27 of the Arms Act, against Lechu Singh. Necessary entry was made in the general diary (extract of which is Ext. A –4). P.W. 6 Sub Inspector Ashok Kumar Tyagi took up the investigation of the case. Sub Inspector Genda Singh Verma took the dead body of the deceased in his possession and got prepared the inquest report (Ext. A –11) at 07:00 A.M, on the very day i.e. 01.10.1991. He also prepared other connected papers – police form No. 13 (Ext. A –12); letter to the Chief Medical Officer for postmortem examination (Ext. A –13) and sketch of the dead body (Ext. A –14). The dead body of Gyan Singh was sent for postmortem examination. P.W. 5 Dr. Shishir Kumar, Medical Officer of Narendra Nagar, conducted postmortem examination on the dead body of Gyan Singh on 01.10.1991, at 11:00 A.M., and prepared autopsy report (Ext. A –2). He recorded the four firearm ante mortem injuries and opined that cause of death was due to haemorrhage and shock as a result of ante mortem injury No. (i). On 02.10.1991, the Investigating Officer arrested accused / appellant Lechu Singh after interrogating the witnesses, and recovered SBBL gun (Ext. 2) and prepared the memorandum of recovery (Ext. A –5). He also took blood stained clothes of the deceased and blood stained stone from the place of incident and prepared the memorandum Ext. A –9 and Ext. A –8, respectively. The gun 4 recovered and the blood-stained clothes were sent for chemical examination to the Forensic Laboratory, Agra. P.W. 7 Ramashraya Pandey, Assistant Director, Forensic Laboratory, sent forensic laboratory report (Ext. A –10). On completion of investigation, the Investigating Officer submitted charge sheet against accused / appellant Lechu Singh for his trial in respect of offence punishable under Section 302 of I.P.C., and one punishable under Section 27 of the Arms Act, 1959. 4) The Chief Judicial Magistrate, on receipt of the charge sheet, 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. Learned Sessions Judge, Tehri Garhwal, after hearing the parties, on 12.08.1992 framed charge of offence punishable under Section 302 of I.P.C., and one punishable under Section 27 of the Arms Act, 1959, against the accused / appellant Lechu Singh. The accused pleaded not guilty and claimed to be tried. On this, the prosecution got examined P.W. 1 Bachan Singh (complainant and brother of the deceased); P.W. 2 Sauna Devi (eyewitness and widow of the deceased); P.W. 3 Juppi (an eyewitness and minor daughter of the deceased); P.W. 4 Daleb Singh (neighbour of the deceased who reached at the spot on alarm being raised by wife of the deceased); P.W. 5 Dr. Shishir Kumar (who conducted postmortem examination on the dead 5 body of deceased Gyan Singh); P.W. 6 Sub Inspector Ashok Kumar Tyagi (who investigated the crime) and P.W. 7 Ramashraya Pandey (Assistant Director, Forensic Laboratory, Agra). The oral and documentary evidence was put to the accused under Section 313 of Cr.P.C., in reply to which he alleged the same to be false. However, no evidence in defence was adduced on behalf of the accused. The trial court, after hearing the parties, found accused Lechu Singh guilty of charge of offence punishable under Section 302 of I.P.C., and one punishable under Section 27 of the Arms Act, 1959. After hearing the parties, the convict (present appellant) was sentenced to imprisonment for life under Section 302 of I.P.C., and further sentenced to undergo rigorous imprisonment for period of one year under Section 27 of the Arms Act, 1959. Aggrieved by said judgment and order dated 10.05.1995, passed by Sessions Judge, Tehri Garhwal, in Sessions Trial No. 14 of 1992, this appeal was filed by the convict before the Allahabad High Court on 21.06.1995, where it was admitted on 22.06.1995. The appeal is received by this Court under Section 35 of the U.P. Re-organization Act, 2000 (Central Act No. 29 of 2000) for its disposal. 5) Before further discussion, we think it just and proper to mention here the ante mortem injuries recorded by P.W. 5 Dr. Shishir Kumar, at the time of postmortem examination on the dead body of Gyan 6 Singh, in the autopsy report (Ext. A –2), which read as under: i) Firearm wound of entry 4 cm X 1 cm X abdominal cavity deep on left side of abdomen 10 cm from umbilicus at 4 O’ clock position. Direction of the wound left to right upwards. Blackish blood clots present. ii) Firearm wound of entry 1 cm X 1 cm X muscle deep on left side of abdomen 6 cm above injury No. (i). Blackening present. Yellowish powder present in wound. iii) Firearm wound of entry 1 cm X 1 cm X muscle deep on left side of abdomen 5 cm above injury No. (ii). Blackening present. Yellowish powder present in the wound. iv) Firearm wound of entry 1 cm X 1 cm X muscle deep on left side of abdomen 4 cm below and inner to injury No. (i). On internal examination, the Medical Officer found that laceration was found in the abdomen under injury No. (i), (ii), (iii) and (iv). Peritcueum was found lacerated under injury No. (i). Small intestine was found lacerated at four places under injury No. (i). Bladder was found lacerated under injury No. (i). The Medical Officer Dr. Shishir Kumar (P.W. 5) has opined that cause of death of the deceased was haemorrhage and shock as a result of ante mortem injury No. (i). From the evidence of the Medical Officer read with the autopsy report, it is clearly established on the record that Gyan 7 Singh has died a homicidal death. Now, this Court has to see whether accused Lechu Singh has committed murder of Gyan Singh, or not? 6) P.W. 1 Bachan Singh, elder brother of the deceased, has stated that on 29.09.1991, at about 08:30 P.M., he was in his house in the village. He heard alarm raised by wife of Gyan Singh (deceased), on which he rushed to her house. He saw that Gyan Singh was lying in an injured condition in a pool of blood in his courtyard. This witness has further disclosed that Gyan Singh had enmity with accused Lechu Singh. The witness has further stated that as it was night, the villagers could not take the injured to the hospital and tried to give the injured milk mixed with turmeric. In the early hours they took the injured to Narendra Nagar hospital, from where the injured was referred to Dehradun. According to P.W. 1 Bachan Singh when the injured was taken to Dehradun hospital, he was declared brought dead by the doctors there. The witness further states that he lodged first information report (Ext. A –1) with the police. 7) P.W. 2 Sauna Devi is widow of the deceased and eyewitness of the incident. She has stated that her husband had a quarrel over a water channel with the accused Lechu Singh. She further states that apart from this once accused Lechu Singh had made a false allegation relating to loss (due to poisoning) of his hen against her husband. P.W. 2 Sauna Devi states that on the day of incident, at about 08:00 P.M., she was inside 8 her house with her husband (Gyan Singh) and children. Suddenly, their dog started barking. Initially she thought that there might be some animal in the field, therefore, she tethered her dog. However, again the dog started barking. This time she along with her husband and daughter Juppi came out. As soon as her husband came out of the house, accused Lechu Singh who was armed with a gun, fired at him (Gyan Singh), who fell down after receiving the gun shot injury. On this, she raised alarm and her brother-in-laws / neighbours Jabar Singh, Bachan Singh (P.W. 1), Ratan Singh and Daleb Singh (P.W. 4) came there. However, the accused ran away after firing the shot. The witness further discloses that since it was night, Gyan Singh in an injured condition, was brought inside the house, and was taken next day morning for the hospital from where she came to know that her husband has died. She identified the gun recovered from the accused. 8) P.W. 3 Juppi, a minor daughter of the deceased, has corroborated the story narrated by her mother, as mentioned above. She is also the natural witness like her mother, who saw the incident that Lechu Singh fired at her father. The testimony of the two eyewitnesses P.W. 2 Sauna Devi and P.W. 3 Juppi is natural and trustworthy. Their evidence is corroborated from the ante mortem injuries received by the deceased found by P.W. 5 Dr. Shishir Kumar, quoted above. Also, P.W. 4 Daleb Singh, a neighbour of the deceased, has further corroborated the prosecution story to the extent that after he heard the 9 alarm raised by P.W. 2 Sauna Devi, he rushed to the spot and saw the deceased lying in an injured condition, in pool of blood. He has further corroborated that Jabar Singh, Bachan Singh and Ratan Singh also reached there. This witness has further corroborated the prosecution story that in the night the injured was given milk mixed with turmeric, and only next morning he could be taken to hospital at Narendra Nagar, from where he was referred to Dehradun, and there he was declared brought dead. This witness P.W. 4 Daleb Singh further states that there had been a dispute between the deceased Gyan Singh and accused Lechu Singh over irrigating water and also relating to allegation that Gyan Singh had got hen of Lechu Singh killed by poisoning it (hen). 9) Most clinching and independent evidence on the record, which further corroborates the prosecution story narrated by eyewitnesses, is the evidence of P.W. 7 Ramashraya Pandey, Assistant Director, Forensic Laboratory, Agra, who has prepared the report (Ext. A – 10) after chemical analysis of blood stained cloth (C-1) and the gun recovered from the accused. In his report (Ext. A –10), the Assistant Director of the Forensic Laboratory, has clearly mentioned that SBBL gun No. TC 129 contained the same sulphur material in its barrel which was found in the cloth (C-1) {found in the wound of ante mortem injury No (i), by P.W. 5 Dr. Shishir Kumar, at the time of postmortem examination}. The license of SBBL gun (Ext. 2) recovered from the possession of the accused is Ext. 1, on the record. The 10 said license shows that accused Lechu Singh had a licensed gun No. TG 129, which was recovered from him. 10) Mr. Lokendra Dobhal, learned counsel for the accused / appellant argued that the first information report is highly belated, and false implication of the appellant Lechu Singh cannot be ruled out. No doubt, the first information report is lodged about 30 hours after the incident, but the delay in lodging the first information report is sufficiently explained by P.W. 1 Bachan Singh and P.W. 4 Daleb Singh. Since, the incident had taken place in the night in a village, as such, their explanation that they could not take the injured in the night to the hospital shows their natural conduct. Also, the witnesses have clearly stated that they first made every attempt to save life of Gyan Singh by taking him in early hours on the next day to Narendra Nagar, from where in view of the critical condition of Gyan Singh he was referred to the Doon Hospital, where he was declared brought dead. It is only after Gyan Singh died that they could lodge first information report (Ext. A –1) with police station Muni- Ki-Reti. Saving life of the injured was much more important then lodging of the first information report. In the given circumstances, the conduct of the witnesses was nothing but natural. As such mere delay in lodging of the first information report, in the present case, does not create any reasonable doubt in the prosecution story. 11 11) Next argument advanced on behalf of accused / appellant is that no source of light has been mentioned in the first information report, and it cannot be said that either P.W. 2 Sauna Devi or P.W. 3 Juppi had any opportunity to see who had fired at the deceased. No doubt, that in the first information report source of light is not disclosed by P.W. 1 Bachan Singh, but in the statement of P.W. 2 Sauna Devi and P.W. 3 Juppi it has come that there was a ‘chimney’ (kerosene lamp) and torch as a source of light, at the time of incident. Since, Bachan Singh (P.W. 1) reached at the spot after the shot had already been fired, it is quite possible that he could not mention as to the source of light in which the eyewitnesses could see accused committing crime. As such, merely non-mention of source of light in the first information report, in the present case, does not shake the testimony of P.W. 2 Sauna Devi and P.W. 3 Juppi, which is corroborated not only with the medical evidence but also the forensic laboratory report, after the gun used in the crime was recovered from the accused Lechu Singh. Apart from this, it is pertinent to mention here that accused Lechu Singh was not an unknown person to the eyewitnesses. Rather, P.W. 2 Sauna Devi, in her first sentence has stated that Lechu Singh is related to her as brother-in-law. In these circumstances, there was no difficulty in identifying the accused, even in the night from a close distance. It has come on the record through P.W. 5 Dr. Shishir Kumar that there was blackening around the ante mortem injury No. (i) and the fire was 12 shot from a short distance, as a result of which the blackening is there. 12) Lastly, it is submitted on behalf of the accused / appellant that no exit wound was found by the Medical Officer nor the pellets were found, as such, the ante mortem injuries shown in the postmortem report itself are doubtful. Though, the Medical Officer has stated that he had not taken the pellets out of the body of the deceased, but merely on its basis it cannot be said that he had searched the pellets in the body. 13) For the reasons as discussed above, we do not find any force in this appeal. We concur with the trial court that the prosecution has successfully proved charge of offence punishable under Section 302 of I.P.C., and one punishable under Section 27 of the Arms Act, 1959, beyond reasonable doubt against the accused / appellant Lechu Singh. Accordingly, the appeal is liable to be dismissed. The same is dismissed. The trial court record be sent back so that the accused / appellant Lechu Singh be made to serve out the sentence awarded to him. The accused / appellant is on bail. His bail is cancelled. (B.S. Verma, J.) (Prafulla C. Pant, J.) Dt. April 29, 2009. H. Negi