IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 2057 of 2001 (Old No. 1262 of 1998) 1. Satyendra S/o Dudha Nath Rai 2. Shailendra Kumar (since deceased) S/o Bindeshwar Thakur R/o Mohalla Jagatpura Police Station Rudrapur, District Udham Singh Nagar. ...…………. Appellants Versus The State ...…………. Respondent Mrs. Pushpa Joshi, Advocate for the appellant Satyendra. Mr. Amit Bhatt, Addl. Government 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 01.06.1998, passed by learned Special Judge / Additional Sessions Judge, Nainital, in Sessions trial No. 189 of 1996, whereby the said court has convicted accused Satyendra under Section 302 and accused Shailendra Kumar (since deceased) under Section 302 read with Section 34 of the Indian Penal Code, 1860 (hereinafter referred as I.P.C.), 2 and each one of the convicts is sentenced to imprisonment for life. 2) Heard learned counsel for the parties and perused the lower court record. 3) Prosecution story, in brief, is that on 08.01.1996, at about 08:30 P.M., complainant Harjinder Singh (P.W. 3) and his brother-in-law Harjeet Singh (deceased) along with Kesar (P.W. 2) and Ram Prakash Gupta (P.W. 1) were going for some work. When they reached in Mohalla Jagatpura in Rudrapur (now part of district Udham Singh Nagar), they met accused / appellants Satyendra and Shailendra Kumar. There was electric light on the street. On seeing above four, the accused / appellants hurled abused at the complainant Harjinder Singh (P.W. 3) and his brother-in-law Harjeet Singh (deceased) and told them that they would now stop the two (complainant and his brother- in-law) from making complaints against the accused / appellants that they sell illicit liquor. When complainant and his brother-in-law asked the accused / appellants not to hurl the abuses, the accused / appellant Shailendra Kumar caught Harjeet Singh, and accused / appellant Satyendra, who was armed with knife, started inflicting injuries on the person of Harjeet Singh. He (Satyendra) gave many blows on the vital part of the body of Harjeet Singh, who succumbed to the injuries received by him, on the spot. According to the prosecution, the witnesses tried to apprehend the accused, but they succeeded in fleeing from the scene of occurrence after brandishing the knife. Complainant Harjinder Singh (P.W. 3) thereafter went to 3 police station Rudrapur and lodged the report at 09:45 P.M., on the very day (08.01.1996). The police registered crime No. 10 relating to offence punishable under Section 302 of I.P.C. against the accused / appellants Satyendra and Shailendra Kumar, and a check report (Ext. A –12) was prepared. The crime was investigated by Inspector Tajpal Singh (P.W. 6). Sub Inspector Prakash Chand Mathpal (P.W. 5) was sent to the spot, who took the dead body of Harjeet Singh in his possession and prepared the inquest report (Ext. A –2) on the very day i.e. 08.01.1996. He also prepared police form No. 33 (Ext. A –4), sample seal (Ext. A –5), sketch of the dead body (Ext. A –6), police form No. 13 (Ext. A –7) and letter to the Medical Officer (Ext. A –3) requesting for postmortem examination. Dr. N.S. Kanyal (P.W. 7), Medical Officer of Base Hospital, Haldwani, conducted the postmortem examination on the dead body of Harjeet Singh on 09.01.1996, and prepared autopsy report (Ext. A –16). He recorded as many as eight incised wounds as ante mortem injuries, and opined that cause of the death of the deceased was shock and haemorrhage, as a result of ante mortem injuries. During investigation, the Investigating Officer (P.W. 6) Tejpal Singh, apart from interrogating the witnesses, recovered knife (Ext. 1) used in the crime after arrest of accused / appellant Shailendra Kumar on his pointing out, and prepared memorandum (Ext. A –9). He also prepared the site plan (Ext. A –8). Apart from this, the Investigating Officer took the blood stained soil and simple soil from the place of incident and after sealing the same prepared memorandum (Ext. A –10). On completion of investigation, he submitted charge sheet 4 (Ext. A –11) against both the accused Satyendra and Shailendra Kumar. Also, a report dated 30.04.1996 was received from the Chemical Examiner of Forensic Laboratory, Agra, in which it was reported that the blood stained items contained human blood. 4) The Magistrate, on receipt of 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. Learned Special Judge / Additional Sessions Judge, Nainital, after hearing the parties, framed charge of offence punishable under Section 302 of I.P.C. on 13.09.1996, against accused Satyendra, and a separate charge of offence punishable under Section 302 read with Section 34 of I.P.C. was framed against accused Shailendra Kumar. Both of them pleaded not guilty and claimed to be tried. On this, the prosecution got examined P.W. 1 Ram Prakash Gupta (an eyewitness of the incident); P.W. 2 Kesar (another eyewitness); P.W. 3 Harjinder Singh (complainant and eyewitness); P.W. 4. Kavinder Singh (in whose presence inquest report was prepared); P.W. 5 Sub Inspector Prakash Chandra Mathpal (who prepared the inquest report); P.W. 6 Inspector Tejpal Singh (who investigated the crime) and P.W. 7 Dr. N.S. Kanyal (who conducted the postmortem examination on the dead of Harjeet Singh). The oral and documentary evidence was put to the accused / appellants on 22.05.1998, under Section 313 of Cr.P.C., in reply to which they alleged the same to be false. Accused / appellant Satyendra at the end of his reply stated that he has been falsely implicated as he was a visitor to the house of co-accused Shailendra 5 Kumar. However, no evidence in defence was adduced. After hearing the parties, the trial court found both the accused / appellants guilty of charge of offences, framed against them. After hearing on sentence, each one of the convicts is sentenced to undergo imprisonment for life. Aggrieved by said judgment and order dated 1st June 1998, the two convicts preferred this appeal before the Allahabad High Court on 14.07.1998, where it was admitted on 16th July 1998. The appeal is received by transfer to 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. 7 Dr. N.S. Kanyal, who conducted the postmortem examination on dead body of Harjeet Singh, and prepared autopsy report (Ext. A –16). The ante mortem injuries mentioned in aforesaid document are being reproduced below: i) Incised wound 3 cm X 1.5 cm X cavity deep on left side of neck inner of sternal noth left side. On exploring the wound the neck muscle and vessel are found cut and appex of left lung was cut. ii) Incised wound 3 cm X 2 cm X cavity deep, on left axillary and front of upper arm. On exploring the wound axillary mole were cut in costal muscle cut and left upper lobe and lateral part of lung. iii) Incised wound 3 cm X 2 cm X tissue deep, on right side chest, 8 cm below right nipple. On 6 exploring the wound inter costal muscles found cut. iv) Incised wound 1 cm X 0.5 cm X muscle deep, on the left side of the abdomen, 4.5 cm above the umbilicus. v) Incised wound 2 cm X 1.5 cm X muscle deep on the left side abdomen and laterally to injury No. (iv). vi) Incised wound 3 cm X 1 cm X muscle deep on mid axillary line on left side 5 cm below injury No. (v). vii) Incised wound 2 cm X 1 cm X muscle deep, on back of abdomen left side 2 cm below injury No. (vi). viii) Incised wound 0.5 cm X 0.25 cm X muscle deep, on left side chest joint, below left nipple. On internal examination, pleura was found cut, upper lobe of the lungs was found punctured. The small and large intestines were found lacerated. The Medical Officer in his report opined that cause of death was shock and haemorrhage as a result of ante mortem injuries. The above injuries found by P.W. 7 Dr. N.S. Kanyal, recorded in the autopsy report (Ext. A –16), clearly establish on record that Harjeet Singh has died homicidal death and was inflicted several incised wounds before he succumbed to the same. Now, the question before this Court is whether, accused / appellant Satyendra has caused the injuries on the person of Harjeet, as alleged by the prosecution? 7 6) To prove this fact on behalf of the prosecution P.W. 1 Ram Prakash Gupta, P.W. 2 Kesar and P.W. 3 Harjinder Singh (complainant) were examined before the trial court. P.W. 1 Ram Prakash Gupta has stated that on the day of incident, at about 08:30 P.M., when he along with Harjeet Singh (deceased), Kesar (P.W. 2) and Harjinder Singh (P.W. 3) reached near hut of Lallu, accused / appellants Shailendra and Satyendra came there and started hurling abuses at Harjeet. The witness further states that there was an electric light at the place of incident. The accused / appellants were protesting that why Harjeet Singh had complained regarding their activity of extracting illicit liquor. When Harjeet Singh (deceased) asked them to stop, Shailendra caught hold of the deceased, and Satyendra, who was armed with knife, started inflicting blows on his person. Harjeet Singh suffered injuries and succumbed to the same, at the spot. 7) The above statement of P.W. 1 Ram Prakash Gupta gets full corroboration from the statement of P.W. 2 Kesar who has also narrated the prosecution story, as stated by P.W. 1 Ram Prakash Gupta. P.W. 3 Harjinder Singh, complainant has also corroborated the entire prosecution story, as stated by the other two witnesses, namely P.W. 1 Ram Prakash Gupta and P.W. 2 Kesar. This witness (P.W. 3) has further stated that after the incident he left the dead body of Harjeet Singh at the spot in the supervision of Ram Prakash Gupta and went to the police station to lodge the first information report (Ext. A –1). The statements of the three eyewitnesses get corroboration from the medical 8 report, already discussed above. As such, testimony given by the three eyewitnesses inspires confidence. 8) Learned counsel appearing on behalf of the accused / appellant Satyendra argued that the witnesses are not independent witnesses, rather, they are close relatives and friends, as such their testimony should not be believed. Though, Harjinder Singh (complainant) is brother-in-law of the deceased, and another eyewitness Ram Prakash Gupta, is a friend of the deceased, but their presence at the spot does not appear to be doubtful, for they are all residents of Rudrapur, and it is natural that they were going together at the time of the incident. 9) It is further contended on behalf of the accused / appellant Satyendra that had the three eyewitnesses been together, there should have been no difficulty in apprehending the accused / appellants at the spot. It is further argued that the induction of the three eyewitnesses in the prosecution story is an afterthought. We have re- examined the evidence on record and found that had the accused / appellant Satyendra been not armed with knife, a deadly weapon, it could have been said that the witnesses could have overpowered him. But it has come on the record that accused / appellants threatened the witnesses showing them the dagger, the accused / appellant Satyendra had in his possession. As such, there is nothing unnatural in the prosecution story that the witnesses could not apprehend the accused / appellants at the spot. 9 10) Thirdly, it is submitted on behalf of the accused / appellant Satyendra that there was no premeditation on the part of the accused / appellants. It is further submitted that it was at the most a case of sudden quarrel between the rival groups. On its basis, it is contended on behalf of the accused / appellant that even if the prosecution story is taken to be true, it is a case of 304 I.P.C. i.e. culpable homicide not amounting to murder, and not a one punishable under Section 302 of I.P.C. i.e. murder. Had there been a single blow of the deadly weapon and had there been a provocation from the side of the deceased, what learned counsel for the appellant has argued could have been accepted. However, the eight ante mortem injuries on the person of the deceased, which are on the vital part of the body, clearly show the intention on the part of appellant Satyendra to commit murder of the deceased. Apart from this, there was no provocation from the deceased which can be said to have given accused a cause for losing the self control. As such, we are unable to accept the submission advanced on behalf of the accused / appellant. 11) We find the testimony of the eyewitnesses to be natural which is corroborated by the medical evidence. The first information report is also a prompt one. Therefore, we agree with the finding of the trial court that the prosecution has been successful in proving the charge of offence punishable under Section 302 of I.P.C. against the accused / appellant Satyendra. 10 12) For the reasons as discussed above, we do not find any force in this appeal, which is liable to be dismissed. The appeal is dismissed. Accused / appellant Satyendra is in jail. Let a copy of this judgment be sent to the Superintendent of the jail concerned where the accused / appellant Satyendra is serving out the sentence. (As far as the appeal of accused / appellant Shaildenra Kumar is concerned, the same stands abated due to his death on 28.02.2003, during the pendency of the appeal). Lower court record be sent back to the court concerned. (B.S. Verma, J.) (Prafulla C. Pant, J.) Dt. September 24, 2008. H. Negi