Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 278 of 2003 Pritam Singh S/o Sri Murli Singh R/o Village Mahuadabra P.S. Jaspur, District Udham Singh Nagar. ...…………. Appellant (in jail) Versus State of Uttaranchal (now State of Uttarakhand) ...…………. Respondent Mr S.K. Agarwal, Sr. Advocate, assisted by Mr. Jitendra Chaudhary, Advocate, present for the appellant. Mr. Amit Bhatt, Addl. Govt. Advocate, present for the State. Mr. Rajendra Kotiyal, Advocate, and Mr. Rajendra Singh, Advocate, present for the complainant. Along With Criminal Appeal No. 271 of 2003 Pyare Lal S/o Heera Lal R/o Village Mahuadabra P.S. Jaspur, District Udham Singh Nagar. 2 ...…………. Appellant Versus State of Uttaranchal (now State of Uttarakhand) ...…………. Respondent Mr R.P. Nautiyal, Advocate, present for the appellant. Mr. Amit Bhatt, Addl. Govt. Advocate, present for the State. Mr. Rajendra Kotiyal, Advocate, and Mr. Rajendra Singh, Advocate, present for the complainant. Coram : Hon’ble Prafulla C. Pant, J. Hon’ble V. K. Bist, J. Per: Hon. Prafulla C. Pant, J. These two appeals, preferred under Section 374 of the Code of Criminal Procedure, 1973 (for short Cr.P.C.), are directed against the judgment and order dated 11.09.2003, passed by Addl. Sessions Judge / F.T.C. Kashipur, District Udham Singh Nagar, in Sessions Trial No. 172 of 2002, whereby accused / appellant Pritam Singh has been convicted under Section 302 of the Indian Penal Code, 1860 (for short I.P.C.), and sentenced to imprisonment for life and directed to pay fine of ` 10,000/-. The trial court has further convicted accused / appellant Pyare Lal under Section 302 read with Section 34 of I.P.C., and sentenced him to imprisonment for life, and also directed to pay fine of ` 2,000/-. 3 2) Heard learned counsel for the parties and perused the lower court record. 3) Prosecution story, in brief, is that P.W. 1 Jaipal Singh (brother of the deceased) lodged first information report (Ext. A –1) at police station Jaspur on 09.03.2002, at about 10:30 P.M., stating that accused / appellant Pritam Singh had enmity with Narendra Singh (deceased) over an issue of construction of shops by Nagar Panchayat, Mahua Kheda, but for some 2-3 months, they had come to talking terms. On 09.03.2002, at about 07:00 P.M., accused / appellants Pritam Singh and Pyare Lal came to the house of Narendra Singh and the three had drinks together. After taking alcohol, they proceeded for new Shiv Temple, where there was arrangement of ‘BHANDARA’ (community feast) for KANWARIAS (devotees of Lord Shiva) in Mahua Kheda. At about 09:30 P.M., as soon as Narendra Singh attempted to start his motorcycle, accused / appellants Pritam Singh and Pyare Lal took out their country made pistols. Accused / appellant Pritam Singh told Narendra Singh that he would not let him go alive, and fired a shot on his head. Narendra Singh died at the spot. The incident was witnessed by Virendra Singh (P.W. 2) and Kripal Singh @ Munna Singh (P.W. 3). On the basis of report (Ext. A –1), police registered Crime No. 107 of 2002, against accused / appellants Pritam Singh and Pyare Lal, relating to offence punishable under Section 302 of I.P.C., at police station Jaspur, and prepared check report (Ext. 4 A –4). Necessary entry (Ext. A –5) was made in the General Diary. On the next day (10.03.1992), the police took dead body of Narendra Singh in their possession, and prepared inquest report (Ext. A –2) and other necessary papers viz. letter to the Chief Medical Officer (Ext. A –7), sketch of the dead body (Ext. A –8), police form No. 13 (Ext. A –9) and sample seal (Ext. A –10). The dead body was sent in sealed condition for postmortem examination, and on the very day (10.03.1992), P.W. 6 Dr. Shamim Ahmad conducted postmortem examination on dead body of Narendra Singh, and recorded firearm wound of entry with blackening and tattooing on the head of the deceased. The Medical Officer opined that the deceased had died of shock and haemorrhage, as a result of ante mortem firearm injury. The crime was investigated by P.W. 7 Sub Inspector Suresh Chandra Joshi, who interrogated the witnesses, inspected the site, and after completion of investigation submitted charge sheet (Ext. A –18) against the accused / appellants Pritam Singh and Pyare Lal, for their trial in respect of offence punishable under Section 302 of I.P.C. 4) It appears that the 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. On 21.08.2002, after hearing the parties, the trial court framed charge of offence punishable under Section 302 read with Section 5 34 of I.P.C. against the two accused, namely Pritam Singh and Pyare Lal, who pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1 Jaipal Singh (informant), P.W. 2 Virendra Singh (eyewitness), P.W. 3 Kripal Singh @ Munna Singh (eyewitness), P.W. 4 Constable Dinesh Kumar (who took dead body in sealed condition for postmortem examination); P.W. 5 Constable Jeevan Chand Mishra (who prepared check report on the basis of first information report); P.W. 6 Dr. Shamim Ahmad (who conducted the postmortem examination); and P.W. 7 Sub Inspector Suresh Chandra Joshi (the Investigating Officer). The items collected from the spot and the clothes of the deceased were sent for chemical analysis, and a report dated 27.06.2002 was received from the Forensic Science Laboratory, reporting that the items contained human blood of group B. The oral and documentary evidence was put to the accused under Section 313 of Cr.P.C., in reply to which they alleged that they have been falsely implicated in the crime. It was pleaded by the accused / appellant Pritam Singh that witness Virendra Singh is cousin of the deceased. It is further pleaded that on the objection of accused Pritam Singh, further contracts of construction were not given to said witness, therefore, the accused has been implicated due to enmity. In defence, D.W. 1 Inder Singh was got examined who stated that he was in Shiv Temple till 10:00 P.M. and by then no such incident had taken place there. The trial court, after hearing the parties, found that 6 prosecution has successfully proved charge of offence punishable under Section 302 of I.P.C. against the accused Pritam Singh, and that of one punishable under Section 302 read with Section 34 of I.P.C. against accused Pyare Lal. After hearing on sentence, convict Pritam Singh was sentenced to imprisonment for life and directed to pay fine of ` 10,000/-. Convict Pyare Lal was sentenced to imprisonment for life and directed to pay fine of ` 2,000/-. Aggrieved by said judgment and order dated 11.09.2003, passed in Sessions Trial No. 172 of 2002, these appeals are filed by the two convicts. 5) Before further discussion, we think it just and proper to mention here the ante mortem injury recorded by P.W. 6 Dr. Shamim Ahmad in the autopsy report (Ext. A –14). The only ante mortem injury found on the dead body by said Medical Officer is being reproduced below: “ i) Firearm wound on entry 4 cm X 3 cm on the back of head X skull cavity deep, 6 cm posterior to left ear. Blackening and tattooing present around the margins of the wound. Margins of wound inverted and lacerated. Brain matter is coming out of the wound.” The Medical Officer has opined in the autopsy report (Ext. A –14) that the deceased had died of shock and haemorrhage, as a result of ante mortem firearm injury. From the above medical evidence on record it is established that Narendra Singh has died a homicidal death. Now, this court has to examine whether, the 7 accused / appellants committed murder of the deceased with common intention, or not. 6) P.W. 1 Jaipal Singh is the informant, who himself has not seen the occurrence of commission of murder. He has stated that Narendra Singh was his younger brother, who was Chairman of the Town Area (Nagar Panchayat) of Mahua Dabra. Accused / appellant Pritam Singh was member of said Local Authority. It is also stated by this witness that construction of shops was going on on behalf of Nagar Panchayat Mahua Dabra, and the shops were to be allotted by Narendra Singh. Accused Pritam Singh wanted two shops for himself. Narendra Singh and Pritam Singh earlier had a quarrel over the demolition of the shops constructed by Nagar Panchayat. This had created rift between the two. However, for about 2-3 months, Pritam Singh again started coming to Narendra Singh, and they were in talking terms. On 09.03.2002, at about 07.30 P.M., accused Pritam Singh along with accused Pyare Lal came to the house of Narendra Singh and asked for liquor. Narendra Singh who had got some liquor (alcohol) offered it, and all the three shared the same. According to this witness thereafter the three went towards Jaspur- Nadhie road where in a Shiv Temple ‘BHANDARA’ (community feast) was going in the service of KANWARIAS (devotees of Lord Shiva). The witness further states that all the three went in the same motorcycle (belonging to deceased) to the temple. 8 P.W. 1 Jaipal Singh states that he remained at home. The witness further states that at about 09:00 P.M., Virendra Singh came to him and told him that when Narendra Singh was about to start the motorcycle on his way back from Shiv Temple, Pritam Singh fired a shot from a pistol at him, who suffered injury resulting in his death. The witness has further stated that he got lodged first information report (Ext. A –1) at the police station. P.W. 1 Jaipal Singh has further stated that the inquest report could be prepared only in the morning. He also proved inquest report (Ext. A –2) on the record. In the cross- examination this witness has stated that place of incident was about 2½ furlong away from his house (also the house of the deceased). When asked as to how many criminal cases were registered against Narendra Singh (deceased), the witness avoided the answer, and simply stated that at police station Jaspur, there was no crime registered against him. In the cross-examination P.W. 1 Jaipal Singh disclosed that witness Virendra Singh (P.W. 2) was a contractor, but he told that he had no knowledge that accused Pritam Singh had opposed granting contract to Virendra Singh. 7) P.W. 2 Virendra Singh has stated that Narendra Singh (deceased) was known to him, who belonged to his village, and was Chairman of Nagar Panchayat. The witness further narrates that on 09.03.2002 in the Shiv Temple at Jaspur-Nadhie road, ‘BHANDARA’ was going on and the KANWARIAS were being welcomed. 9 P.W. 2 Virendra Singh further states that at about 8 – 8:30 P.M., accused / appellants Pritam Singh along with Pyare Lal and Narendra Singh (deceased) came in Shiv Temple and inspected the arrangements. At about 9 – 9:30 P.M., the three came out of Shiv Temple, but as soon as Narendra Singh attempted to start his motorcycle, accused / appellants Pritam Singh and Pyare Lal took out their county made pistols, and told him that they would not leave him alive. Thereafter, Pritam Singh fired a shot at Narendra Singh near his ear on the posterior aspect of head, and the two ran away. P.W. 2 Virendra Singh further states that the incident was also witnessed by Munna Singh (P.W. 3). The witness has further disclosed that there was electric light at the place of incident. He further told that he went to house of Narendra Singh and informed about the incident to Jaipal Singh (P.W. 1). In the cross-examination he admits that he was a contractor. He has also admitted that accused / appellant was member of Nagar Panchayat. However, he denied that he was not allowed a contract on objection of accused / appellant Pritam Singh. As to the distance from which fire was shot, the witness states that the fire was shot from 1-1.5 feet. 8) P.W. 3 Kripal Singh @ Munna Singh has also narrated the same story as narrated by P.W. 2 Virendra Singh. However, this witness is resident of Village Bans Kheda and states that he was in the Shiv Temple as many of KANWARIAS of his village had come to Shiv Temple 10 on that day. In the cross-examination, he states that he had gone to Mahua Dabra (where the incident had occurred) in connection with service to the KANWARIAS. He further told in the cross-examination that there were 200-300 KANWARIAS, inside and outside the temple, at the time of incident. He has admitted that he had been an accused in a dacoity case, but acquitted. He further admits that he was also an accused in a murder case of one Jaddan. He expresses ignorance as to the offence registered against him at police station Kashipur in respect of offences punishable under Section 323, 504 of I.P.C. At the end of his examination he says that accused / appellant Pyare Lal did not fire at Narendra Singh. 9) As against accused / appellant Pritam Singh the eyewitness account given by the witnesses P.W. 2 Virendra Singh and P.W. 3 Kripal Singh @ Munna Singh is natural and trustworthy. Their statements are not only corroborated by the medical evidence on record already discussed above, but also from the report of the Forensic Science Laboratory, Agra. In said report the Forensic Laboratory has reported that the blood contained in the clothes of the deceased and the blood found at the spot in the soil were human blood of group B. This confirms the place of incident suggested by the prosecution. There is nothing unnatural in the statements of P.W. 2 Virendra Singh and P.W. 3 Kripal Singh @ Munna Singh that they were looking after the arrangements for community feast 11 of the KANWARIAS, who had come in large number to Shiv Temple. Merely for the reason that the deceased was an accused in some murder case or that the P.W. 3 Kripal Singh @ Munna Singh had a criminal history does not make the testimony of P.W. 3 unreliable in the present case, which is otherwise supported by the other corroborative evidence. 10) On behalf of the accused / appellant Pritam Singh much emphasis is given to the fact that the inquest report shows that there was no sufficient light to prepare the inquest report in the night, and as such, the same was prepared in the next day morning. However, said fact in our opinion, does not shake the ocular evidence brought on record for the reason that not only the first information report is prompt one (as the same was lodged within one hour of the incident) but also it has been explained by P.W. 7 Sub Inspector Suresh Chandra Joshi that there was electric light ‘of lichee bulb’ which was not sufficient to prepare the inquest report, as such, it cannot be said that there was no electric light to identify the accused / appellant Pritam Singh, who was known to the witnesses. 11) As far as the accused / appellant Pyare Lal is concerned, neither there is any role of exhortation assigned to him, nor he is said to have fired a shot at the deceased, as such, it cannot be said that it is proved on the record beyond reasonable doubt that Pyare Lal had 12 common intention to commit murder of the deceased with accused / appellant Pritam Singh. Simply because he is said to have been accompanying the accused / appellate Pritam Singh while sharing drinks with the said accused and deceased, and thereafter went with them to Shiv Temple, it cannot be said to have been proved that he had common intention with accused / appellant Pritam Singh to commit murder of Narendra Singh. Prosecution has alleged that Pritam Singh had enmity with the deceased, but there is no such enmity said to have been with accused / appellant Pyare Lal as against Narendra Singh. In the circumstances, we are of the view that the charge of offence punishable under Section 302 read with Section 34 of I.P.C. as against accused / appellant Pyare Lal cannot be said to have been proved beyond reasonable doubt. 12) For the reasons as discussed above, we find that appeal of accused / appellant Pritam Singh is liable to be dismissed, but that of accused / appellant Pyare Lal deserves to be allowed, who is entitled to the benefit of reasonable doubt. Therefore, Criminal Appeal No. 278 of 2003 is dismissed, but Criminal Appeal No. 271 of 2003 is allowed. Conviction and sentence recorded by the trial court against accused / appellant Pritam Singh in respect of offence punishable under Section 302 of I.P.C. stands confirmed, but the conviction and sentence recorded by the trial court against appellant Pyare Lal in respect of offence punishable under Section 302 read 13 with Section 34 of I.P.C., is hereby set aside. He (Pyare Lal) is on bail. He need not surrender. His bail bonds are cancelled and sureties are discharged. Accused / appellant Pritam Singh is in jail. Let a copy of this judgment be sent to the Superintendent of jail concerned. The lower court record be sent back. (V.K. Bist, J.) (Prafulla C. Pant, J.) Dt. March 22, 2011. H. Negi