IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Chapter VIII, Rule 32(2) (b) Description of case Date of decision: 23.05.2006 Criminal Appeal No. 282 of 2004 Ranjan Sarkar S/o Tarang Sarkar R/o Village Chitranjan Pur Kasba & P.s. Rudrapur District Udham Singh Nagar. ..Appellant (In Jail) Versus State of Uttaranchal ……Respondent Mr. Dharm Veer Sharma, Senior counsel with Mr. B.S. Parihar, Advocate for the appellant. Mr. H.C. Pande, Additional Government Advocate for the State. A.F.R. (Approved for Reporting) Not approved for Reporting Initials of Judges Date; 23.05.2006 Note: Bench Reader will attach this at the top of fist page of the judgment when it is put up before the Judge for signature. Judgment Reserved IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Criminal Appeal No. 282 of 2004 Ranjan Sarkar S/o Tarang Sarkar R/o Village Chitranjan Pur Kasba & P.S. Rudrapur District Udham Singh Nagar. ..Appellant (In Jail) Versus State of Uttaranchal ……Respondent Mr. Dharam Veer Sharma, Senior counsel with Mr. B.S. Parihar, Advocate for the appellant. Mr. H.C. Pande, Additional Government Advocate for the State. Coram: Hon’ble Rajeev Gupta, C.J, Hon’ble Prafulla C. Pant, J. Per: Hon’ble Prafulla C. Pant, J. This appeal, preferred under Section 374 (2) of Code of Criminal procedure, 1973, is directed against the judgment and order dated 04.09.2004, passed in Sessions Trial No. 204 of 2002 by learned Additional Sessions Judge/III Fast Track Court, Udham Singh Nagar (Rudrapur), whereby appellant Ranjan Sarkar, has been convicted under Section 302 of Indian Penal Code, 1860, and sentenced to imprisonment for life with further direction to pay a fine of Rs. 2,000/- in default in payment of which the appellant is required to undergo three months further rigorous imprisonment. 2. Prosecution story in brief is that in the intervening night of 23rd and 24th April 2002, informant P.W. 3 Sona Singh was sleeping with his brothers P.W. 2 Balbeer Singh and P.W. 4 Gurmeet Singh in separate cots in the courtyard of his house. By his side, his father Bariyam Singh (deceased) was also sleeping in his cot. At about 2:00 A.M., Ranjan Sarkar, with whom deceased had some litigation relating to a peace of land came along with his one associate. Appellant Ranjan Sarkar then fired a shot from a country made pistol at informant’s father Bariyam Singh. The informant and his brothers challenged and made efforts to apprehend the culprits but both of them fled towards river. The informant P.W. 3 Sona Singh, P.W. 2 Balbeer Singh and P.W. 4 Gurmeet Singh, could see and recognize the appellant Ranjan Sarkar in moonlight. They also saw his associate to whom they can recognize if he is made to appear before them. The informant P.W. 3 Sona Singh, soon after the incident, took his injured father Bariyam Singh to Government Hospital, Rudrapur where he died on the very day. Thereafter informant Sona Singh (P.W. 3), lodged First Information Report with Police Station, Rudrapur, against the appellant Ranjan Sarkar and his un-known associate regarding the offence alleged to have been committed by them, punishable under Section 302 of Indian Panel Code. The report was registered as Crime No. 348 of 2002, at 6:17 A.M. on the dead body in possession and prepared Inquest Report (Exh. A-1) and sent the same for post mortem examination with connected necessary papers. Autopsy was conducted by Dr. Virendra Kumar Dixit (P.W. 6) on the same day i.e. on 24.04.2002 at about 1:00 P.M. The Medical Officer at the time of post mortem examination found following ante mortem injuries:- 1. Wound of Entry:- Lacerated wound 3cm X 2cm X cavity deep on the back of chest right side 15cm below the lower angle of right scapula- 6 cm left to strove. Margins inverted. 2. Wound of exit:- Lacerated wound 3cm X 2 cm X cavity deep on the left side (Hypochondrium Area) Abdomen at 2’0 clock position about 15 cms from umblicus upward left side. Margins are Everted. One bullet was plugged in the mouth of wound. On exploration of wound of entry, the same was communicating with wound of exit. All the organ in the way found conjested and lacerated. In the opinion of Medical Officer, who conducted the post mortem examination, the cause of death was found to be haemorrhage and shock due to ante mortem firearm injury. 3. After investigation, the Investigating Officer (P.W. 7), submitted charge sheet against the accused Ranjan Sarkar for his trial on the charge of offence punishable under Section 302 of Indian Penal Code. The charge sheet was registered by concerned Magistrate, who after giving necessary copies to the accused persons as required under section 207 of Code of Criminal Procedure, 1973, committed the case to the Court of Sessions for trial. Learned Sessions Judge, after hearing the prosecution and the accused, framed charge of offence punishable under section 302 of Indian Penal Code against the accused Ranjan Sarkar (appellant), who pleaded not guilty and claimed to be tried. Then prosecution got examined P.W. 1 Bhola Singh (witness of Inquest Report), P.W. 2 Balbeer Singh (eye-witness), P.W. 3 Sona Singh (informant and eye-witness), P.W. 4 Gurmeet Singh (eye- witness), P.W. 5 Ram Kumar Gangwar (Head Constable), who prepared the check report of First Information Report, P.W. 6 Dr. Virendra Kumar Dixit- Medical Officer who conducted autopsy and P.W. 7 Sub-Inspector Brijesh Kumar Tyagi- The Investigating Officer. In the form of documentary evidence, Inquest Report (Exh. A-1), First Information Report (Exh. A-2), Post Mortem Examination Report (Exh. A-3), Check Report of First Information Report (Exh. A-4), General Diary (Exh. A-5), Site Plan (Exh. A-6), Memo of recovery of blood stained mattress, mosquito net and lantern (Exh. A-7) and Charge Sheet (Exh. A-8), was got proved by the prosecution. On being confronted with the oral and documentary evidence adduced by the prosecution, the accused Ranjan Sarkar in his examination under Section 313 of Code of Criminal Procedure, 1973, alleged the evidence adduced against him to be false. In the defence, he submitted only copies of revenue papers Khasra and Khatauni paper Nos. 51 B and 52 B, showing that land transferred by the deceased to the appellant had already been recorded in his name. After hearing both the sides, learned Additional Sessions Judge, who tried the case, found Ranjan Sarkar guilty of offence punishable under Section 302 of Indian penal Code, 1860, and convicted him under said section and sentenced to imprisonment for life. Aggrieved by which, this appeal has been preferred. 4. We heard learned counsel for the appellant and learned Additional Government Advocate/Additional Public Prosecutor and perused the entire record. 5. There are as many as three eye-witnesses of the incident, alleged to have seen the incident which has taken place in the intervening night of 23rd and 24th April, 2002, in the hose of the informant where his father Bariyam Singh was allegedly murdered by appellant Ranjan Sarkar. P.W.3 Sona Singh, son of he deceased who is also informant and eye-witness of the incident has stated in his examination before the trail court that he along with his brothers Balbeer Singh (P.W. 2), Gurmeet Singh (P.W. 4), was sleeping by the side of his father in a separate cot in the courtyard of his house in village Arjunpur. This witness has further stated that apart from moonlight, there was a lantern lighted in the house. According to this witness, appellant Ranjan Sarkar along with his one associate entered in the house and fired from a country made pistol at his father Bariyam Singh. He further states that he and his brothers made attempts to apprehend the appellant but they fled towards river. The witness further said that when his father was taken to hospital, he died there on the very day and thereafter he got lodged First Information Report (Exh.A-2). 6. P.W. 2 Balbeer Singh is real brother of P.W. 3 Sona Singh (informant). He is also an eye-witness. He has also stated that on the day of incident, apart from the moonlight in the courtyard there was a lantern lighted when at about 2:00 A.M., appellant Ranjan Sarkar with his one associate entered in the house and shot fire at Bariyam Singh (father of this witness). He further states that attempts were made to apprehend the appellant and his associate but they ran towards eastern side of the village. The witness further states that when his father was taken to hospital, on reaching there, he died. 7. P.W. 4 Gurmeet Singh is also real brother of aforementioned two witnesses and is also an eye-witness of the incident. He also corroborates the evidence adduced by prosecution through P.W. 2 Balbeer Singh and P.W. 4 Sona Singh that in the intervening night of 23rd and 24th April, 2002, at about 2:00 A.M. he along with sisters, Surander Kaur, Bimal Kaur and father Bariyam Singh, was sleeping in the courtyard of his house. There was light of lantern apart from the moonlight in the courtyard when appellant Ranjan Sarkar along with his one associate started peeping here and there and thereafter shot fire at Bariyam Singh and ran towards eastern side and could not be caught. This witness further states that on reaching the hospital, his father Bariyam Singh died. 8. In the cross-examination of the above eye-witnesses, it has been suggested on behalf of the appellant that the sons of the deceased had quarreled with him in which he got fire arm injury and died. From said suggestion, it appears that as to the factum that the aforementioned witnesses were present at the time of the incident is not challenged by the appellant nor the death caused by fire arm injury to Bariyam Singh is denied. Apart from the statement of the witnesses, as mentioned above, the cause of death of Bariyam Singh gets corroboration from the Post Morterm Report (Exh. A-3) read with statement of P.W. 6 Dr. Virendra Kumar, who has recorded the wound of entry and exit of the fire arm as ante mortem injuries found on the body of the deceased and opined that the deceased died of the haemorrhage and shock due to ante mortem fire arm injury. The presence of eye- witnesses in their house after mid night on the day of the incident is natural and there is no reason to believe that they have not seen the occurrence. What the defence has tried to suggest is that sons of deceased themselves had a quarrel with their father and caused the firearm injury, which is hard to believe, as apparently there appears no motive to do so on their part. 9. On behalf of the appellant- Ranjan Sarkar, learned counsel argued that from the evidence on record it appears that Bariyam Singh (deceased), transferred a piece of his land to Ranjan Sarkar some years before the date of incident and the wife and children of Bariyam Singh were not happy with the transfer of the land. In this connection, it is further argued that from the papers filed in defence, it is clear that mutation in favour of the appellant had already taken place in respect of the land, as such, there is no motive on the part of the appellant to commit the crime. After going through the evidence on record, were are of the view that since there is an eye-witness account of as many as three witnesses, which is natural and trust worthy, as such, the motive loses its importance in such case. Apart from this, from the statements of P.W. 2 Balbeer Singh, P.W. 3 Sona Singh and P.W. 4 Gurmeet Singh, it is clear that their family had some litigation pending with the accused. Appellant Ranjan Sarkar, in his examination under Section 313 of Code of Criminal Proceedings, 1973, has also alleged in reply to question No. 7 that he has falsely been implicated due to the enemity pertaining to land. That reply read with the statement of eye-witnesses, makes this Court believe that there was enemity between the parties. There appears no reason why above witnesses would implicate the appellant leaving the real culprits go scot free. 10. Shri Dharm Veer Sharma, learned Senior Counsel, appearing on behalf of the appellant, submitted that there was no sufficient light to recognize the assailant in the night. In this connection, he further submitted that the light of lantern, has been introduced by prosecution at a later stage to improve their case. We have scrutinized the prosecution evidence on this point. Of course, in the First Information Report (Exh. A-2), it is said that there was moonlight and there is no mention of lantern. But at the same time, this Court is conscious of the fact that the incident had taken place in the courtyard and not inside any room as such even moonlight was sufficient to recognize a person already known to the witnesses. Apart from this, the light of lantern was not introduced for the first time in the oral examination of the witnesses but in fact the site plan and recovery memo prepared during investigation also corroborate the fact that there was a lantern lighted apart from the moonlight in the courtyard. 11. It is also contended on behalf of the appellant that all the three eye-witnesses are real brothers and as such, they have common interest and their evidence should not be believed. We are unable to accept this contention for the reason that inside the house of the deceased, in the mid night, it is only the members of the family who can be said to be naturally present there. And in such circumstances, it is only the members of the family who can narrate the incident what has happened inside the house. 12. Our attention was also drawn on behalf of the appellant to the blood stained clothes, as mentioned in recovery memo (Exh. A-7) and it is pointed out that the blood stained clothes were not sent for chemical examination. On examination, we do not see any force in this point, as the death of Bariyam Singh is not a disputed fact. What the Chemical Examiner’s report would have proved is that the blood stained was human blood. Also, it is argued by learned counsel for the appellant that P.W.1 Bhola Singh, the witness of the Inquest Report has stated in his statement that the same was prepared in the evening. Had the autopsy not done at about 1:00 P.M. on 24.04.2002, what witness Bhola Singh has said, could have been taken seriously but in the present case, statement of P.W. 6 Dr. Virendra Kumar read with post mortem examination, clearly shows that the body of the deceased was brought for post mortem examination along with the inquest report and other papers and the post mortem examination was conducted at about 1:00 P.M., as such, the time of preparation of inquest report pointed out on behalf of the appellant in the statement of P.W. 1 Bhola Singh is not sufficient to create reasonable doubt in the prosecution story. 13. Lastly, it is also submitted on behalf of the appellant that First Information Report is a delayed one, and is ante time. We have examined the evidence on record and found that the check report (Exh. A-4) of the First Information Report, shows that First Information Report was lodged at 6:17 A.M. on 24.04.2002. The incident had occurred at 2:00 A.M. on the said date. As such, the report has been lodged within 4 and 1/2 hours, which cannot be said to be delayed one. As far as the contention relating to its being ante time is concerned, the same does not appear to be substantiated by the evidence on record. The inquest report (Exh. A-1) shows that the same was prepared at 7:15 A.M. and in the inquest report it is mentioned that copy of First Information Report was also annexed. If we consider the distance of 9 Kms between the place of the incident and the police station and the fact that the deceased was taken to hospital before the First Information Report was lodged along with the fact that inquest report was prepared at 7:15 A.M. and post mortem examination was conducted at 1:00 P.M. on the same day, there appears nothing on the record which indicates that First Information Report was ante time. 14. From the above discussion of evidence, we are of the view that the prosecution has been successful in proving the charge framed against the accused Ranjan Sarkar (appellant) that he has committed murder of Bariyam Singh. As such, we see no error of fact or that of law in the impugned judgment and order passed by learned Additional Sessions Judge/IIIrd Fast Track Court, Udham Singh Nagar. Accordingly, the appeal is liable to be dismissed. The same is dismissed. (Prafulla C. pant, J.) (Rajeev Gupta, C.J.) Dt: 23.05.2006 Sweta