IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 384 of 2001 (Old No.1617/1997) Virendra Singh … Appellant Vs State …Respondent Sri S.K. Mishra, Amicus Curiae for the appellant Sri S.S. Adhikari, A.G.A. for the State/respondent Hon’ble B.C. Kandpal, J. Hon’ble Nirmal Yadav, J. This appeal under Section 374 of Cr.P.C. arise out against the judgment and order dated 16.8.1997 passed by Additional District and Sessions Judge, Roorkee, Haridwar, in Sessions Trial No. 192 of 1995, convicting the appellant under Section 302 I.P.C. and sentencing him to life imprisonment and imposing a fine of Rs.10,000/- and in default of payment of fine to undergo further rigorous imprisonment for six months. The co- accused Mahendra Singh was acquitted by the trial court from the charge levelled against him. 2- Prosecution story in brief is that on 24.12.1994 at 7.15 p.m. complainant Om Pal Singh (PW-1) got scribed a written report (Ext.Ka.1) through Raj Pal (PW-3) alleging therein that on 24.12.1994 at about 4.00 p.m. his son Yogesh and Pankaj son of Virendra Singh resident of village Nagla Salaru, had some altercation and about the same complainant, his cousin Raj Pal Singh and father Sukhveer Singh went to the house of Mahendra Singh son of Hukum Singh for compromise. At about 5.00 p.m. when they reached 2 to the house through gallery and paid namaste, whereupon Mahendra Singh got angry and Mahendra Singh and his brother Virendra Singh caught hold the neck of the complainant with an intention to kill him. On this, when complainant and Raj Pal Singh tried to save the deceased from the clutches of the accused, then Mahendra Singh took out a wooden hammer from bullock-cart standing nearby and Virendra Singh had fired on Sukhveer Singh (father of complainant) with country-made pistol, due to which he died at the spot itself. On hearing alarm raised by complainant and Raj Pal Singh, neighbours Samay Singh and Dhoom Singh (PW-2) also reached at the spot and saw the whole incident. After giving firearm injuries to the deceased the accused persons had fled from the place of occurrence. 3- On the basis of information given at police station case was registered under Section 302 I.P.C. and Chick F.I.R. (Ext.Ka.5) was prepared by H.C. Ram Pal Singh (PW-5) and necessary entry was made in the General Diary vide Ext.Ka.6. The investigation of the case was taken up by S.I. R.K. Singh (PW-6). S.I. Yogendra Kumar (PW-7) prepared the inquest on the dead body vide Ext.Ka.10 and sketch of dead body (Ext.Ka.11), letter to C.M.O. (Ext.Ka.12), Challan Lash (Ext.Ka.13) were prepared and dead body was sent for post mortem examination. The I.O. took in his possession one cartridge of 12 bore vide Ext.Ka.2 and bloodstained earth vide Ext.Ka.3, in the presence of witnesses Om Pal Singh (PW-1) and Raj Pal Singh (PW-3). The autopsy report (Ext.Ka.4) was obtained during investigation and site plan (Ext.Ka.7) was prepared 3 after inspecting the place of occurrence. On 25.12.1994 accused Mahendra Singh was arrested by the police and a country-made pistol of 12 bore and two cartridges of 12 bore were recovered from his possession and its recovery memo was prepared as Ext.Ka.8. The same person i.e. Mahendra Singh was also wanted in the commission of crime of murder. A case was also registered against Mahendra Singh under Section 25 of Arms Act. G.D. Report of the case is Ext.Ka.15 and Chick F.I.R. is Ext.Ka.16. The investigation of the case was taken up by S.I. Sri S.S. Pundir (PW-8), who inspected the place of incident and prepared site plan vide Ext.Ka.17 and after completing all the formalities of the investigation and obtaining permission from District Magistrate, Haridwar for prosecution against the accused under Section 25 Arms Act vide Ext.Ka.18, the I.O. submitted charge sheet (Ext.Ka.19). S.I. R.K. Singh Yadav having completed investigation of the crime of the murder submitted charge sheet (Ext.Ka.9) against both the accused before Judicial Magistrate, Roorkee. 4- The learned Magistrate on receipt of the 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 on 30.6.1995. The learned Sessions Judge framed the charge under Section 302/34 I.P.C. against accused persons Mahendra Singh and Virendra Singh. Another charge was framed under Section 25 Arms Act against the accused Mahendra Singh Singh. The charge was read over and explained to the accused persons, who pleaded not guilty and claimed to be tried. 4 5- The prosecution in support of its case got examined as many as eight witnesses. PW-1 complainant Om Pal Singh is the eyewitness who lodged the F.I.R. (Ext.Ka.1) and proved the recovery of empty cartridge (Ext.Ka.2) and bloodstained earth and plain earth (Ext.Ka.3). PW-2 Dhoom Singh and PW-3 Raj Pal Singh are the eyewitnesses of the case. PW-4 Dr. Pradeep Singh is the witness who conducted the autopsy on the dead body of the deceased and proved autopsy report (Ext.Ka.4). PW- 5 H.C. Ram Pal is the witness who has prepared Chick F.I.R. (Ext.Ka.5) and made necessary entries in the G.D. (Ext.Ka.6). PW-6 S.I. R.K. Singh Yadav is the investigating officer of the crime of murder. PW- 7 S.I. Yogendra Kumar is the witness who prepared the inquest report (Ext.Ka.10). PW-8 S.I. S.S. Pundir is the investigating officer of offence punishable under Section 25 Arms Act. 6- The accused persons in their statements under Section 313 Cr.P.C. denied the prosecution case and in defence an original agreement deed dated 28.7.71 executed by Chatru in favour of Mahendra Singh, Rejendra Singh etc. was shown by accused Mahendra Singh. The accused also submitted a certified copy of charge sheet filed in Case Crime No. 192/1983 (S.T. No. 404/84), State vs. Sukhveer Singh and others, under Section 302 I.P.C. P.S. Manglore, but no oral evidence was adduced in this regard. Original agreement (Ext.Kha.1) and certified copy of charge sheet (Ext.Kha.2) have been admitted on record for the reason that these documents were more than 20 years old. 5 7- The trial court having considered the entire evidence on record and hearing learned counsel for the parties found not guilty accused Mahendra Singh of charge of offence punishable under Sections 302/34 I.P.C. and 25 Arms Act and acquitted him of the offence of charge levelled against him. The trial court found guilty accused Virendra Singh of charge of offence punishable under Section 302 I.P.C. After hearing on sentence, the trial court sentenced the accused Virendra Singh to undergo imprisonment for life and to pay a fine of Rs.10000/- and in default of payment of fine to undergo further rigorous imprisonment for six months, vide judgment and order dated 16.8.1997. 8- Feeling aggrieved by the aforesaid impugned judgment and order, the accused/appellant Virendra Singh has preferred the present appeal which has been placed before us for disposal. 9- We have heard Sri S.K. Mishra, learned Amicus Curiae for the appellant, Sri S.S. Adhikari, learned A.G.A. for the State/respondent and perused the record. 10- Before further discussion, it is pertinent to mention here that post mortem examination on the dead body of the deceased Sukhveer Singh was conducted on 25.12.1994 at 2.00 p.m. by Dr. Pradeep Kumar (PW-4), who found the following ante mortem injuries on his person: - (i) Firearm wound of entry 3 cm x 3 cm x chest cavity deep, on the left side upper part point of chest 6 cm above left nipple 6 at 11’ o clock position. Margin inserted blackening and scorching and charring present around the wound. (ii) Firearm wound of exit, two in number, 1 cm apart, each measuring 1 cm x 1 cm x chest cavity deep margins exerted on the left side part and outer part of chest 11 cm outer to nipple at 3’ o clock position. Blackening and tattooing were present. 07 metallic pallets recovered from the chest wall underneath the injury in the chest wall (07 pallets along with one wadding sealed and handed over to accompanying constable. Wadding noted overleaf). Injury is connected with injury no. 1. (iii) Abraded contusion 4 cm x 2 cm on the outer part of right side lower leg just above the ankle joint. 11- The Medical Officer (PW-4), at the end of post mortem examination, opined that deceased died on account of shock and hemorrhage due to ante mortem injuries. The statement of PW-4 Dr. Pradeep Kumar, read with autopsy report (Ext.Ka.4), clearly establishes on record that Sukhveer Singh died a homicidal death. Now, the question to be examined by this Court is whether accused Virendra Singh and Mahendra Singh committed murder of the deceased or not. 12- PW-1 Om Pal Singh (complainant), who is the eyewitness of the case, has stated that on 24.12.1994 at 4.00 p.m. Yogesh and Pankaj had some altercation. Pankaj is the son of Virendra 7 Singh. He was told about this altercation by his son Yogesh. He made to understand Yogesh. Thereafter, he along with his cousin Raj Pal Singh and father Sukhbir Singh went to the house of Mahendra Singh for compromise. At about 5.00 p.m. when they reached at the house of accused through gallery and paid namaste to them, then Mahendra Singh got angry and Mahendra Singh and his brother Virendra Singh caught hold the neck of Sukhveer Singh with intention to kill him. On this, when he and Raj Pal Singh (PW-3) tried to save the deceased from the clutches of the accused, then Mahendra Singh took out a wooden hammer from bullock-cart standing nearby and Virendra Singh had fired on his father Sukhveer Singh with country-made pistol, due to which he died at the spot itself. On hearing alarm raised by complainant and Raj Pal Singh, neighbours Samay Singh and Dhoom Singh (PW-2) also reached at the spot and saw the whole incident. After causing firearm injuries to the deceased the accused persons fled from the place of occurrence. This witness has also stated that he got scribed written report (Ext.Ka.1) of the incident through Raj Pal (PW-3) on 24.12.1994 at 7.15 p.m. This witness was cross- examined by the defence at length but nothing has come out in his evidence which may create any doubt in his evidence. The evidence of this witness is trustworthy, reliable and believable. 13- The statement of the eyewitness (PW-1) gets corroboration from the statement of Dhoom Singh (PW-2), who has stated that on the day of incident in the evening at about 5.00 p.m. he was going to Chak from his house and when he reached at the 8 place where incident had taken place, he saw the incident. This witness has also stated that accused Mahendra Singh was having Khalva (wooden hammer) in his hand and on his instigation accused Virendra Singh had fired on Sukhveer Singh with country-made pistol, due to which who died. 14- PW-3 Raj Pal is another eyewitness of the incident, who has corroborated the prosecution case in the same manner, as stated by PW-1 and PW-2. This witness has stated in his evidence that on 24.12.1994 at 4-5 p.m. when he along with Om Pal Singh (PW-1), Sukhveer Singh (deceased) went to the house of accused for talking them with regard to altercation between Om Pal Singh and son of Virendra Singh. They reached to the house of Mahendra Singh through gallery and paid namaste to him and Virendra Singh. On this, accused got angry and they caught hold the neck of uncle Sukhveer Singh. He and Om Pal Singh tried to save him from the clutches of accused. Accused Mahendra Singh took out a Khalva (wooden hammer) from the bullock-cart standing nearby and Virendra Singh took out a revolver. This witness has also stated that accused Mahendra Singh instigated accused Virendra Singh to fire on Sukhveer Singh, whereupon he had fired on Sukhveer Singh, due to which he fell down on the ground. This witness has further stated that this incident was also witnessed by Samay Singh and Dhoom Singh. This witness has further stated that he scribed report of this incident on the dictation of Om Pal Singh (PW-1). The police took in his possession empty cartridge from the place of incident and prepared its recovery memo vide Ext.Ka.2 containing signature of this 9 witness. The police has also taken bloodstained earth and simple earth from the place of incident and prepared its recovery memo vide Ext.Ka.3, which also contained signature of this witness. The testimony of these eyewitnesses i.e. PW-1, PW-2 and PW-3 is natural and trustworthy and their presence on the place of incident cannot be doubted. 15- The above testimony of the eyewitnesses i.e. PW-1, PW-2 and PW-3 is also corroborated by the medical evidence. The doctor (PW-4) found two firearm injuries, one entry wound and the other exit wound, on the chest of the deceased. This is also the case of the prosecution that accused Virendra Singh had fired shot on the chest of the deceased. In this way, the medical evidence fully finds corroboration from the ocular version adduced by the prosecution. 16- Learned Amicus Curiae appearing for the accused/appellant argued that F.I.R. in the present case is not prompt one. We are unable to accept the argument advanced on behalf of the accused/appellant. In this case, incident was said to have taken place on 24.12.1994 at about 5.00 p.m. and report of the incident was lodged on the same day at 7.15 p.m. at P.S. Manglore, District Haridwar. Chick F.I.R. (Ext.Ka.5) also shows that distance of police station from the place of incident is about 12 kms. Therefore, the F.I.R. lodged by the complainant (PW-1) appears to be prompt one as the same has been lodged within 2¼ hours of the incident. The promptness in lodging the F.I.R. clearly indicates that there was no chance available with the complainant to make out a cock and bull 10 story. Therefore, we are of the view that the First Information Report lodged in the case on account of its promptness cannot be disbelieved. 17- The next submission raised on behalf of the accused/appellant is that there was no motive of commission of crime on the part of the accused and they have been falsely implicated. On going through the evidence on record, we find that PW-1 Om Pal Singh has stated in his cross-examination that before 4-5 days of the incident there was an allegation upon his son Yogesh to molest the daughter of accused Virendra Singh, regarding which on the day of incident some altercation also took place between Yogesh and Pankaj (son of Virendra Singh). On the other hand, accused did not establish any motive which could suggest that they have been falsely implicated. It is also to be noted here that where there is eyewitness account of the incident, motive does not play any important role. However, we are of the view that the prosecution has sufficiently shown the reason why the accused was prompted to commit the murder of the deceased. Thus, the motive for the commission of the crime is amply proved. 18- The next submission raised on behalf of the accused/appellant is that the trial court has acquitted co-accused Mahendra Singh on the same set of evidence, therefore, the benefit of acquittal of co-accused Mahendra Singh should be extended to the present appellant Virendra Singh also. 19- We do not find any substance in the submission raised by learned counsel for the 11 appellant. It is revealed from the record that the acquitted accused Mahendra Singh has caught hold the neck of Sukhveer Singh (deceased) prior to the actual incident and thereafter he did the act of taking out the wooden hammer from the bullock- cart. However, the role of the present appellant Virendra Singh is totally different. He has been assigned the role of firing shot by country-made pistol on the deceased, due to which deceased died. No role of exhortation has been assigned to the acquitted accused Mahendra Singh. In this way, the trial court has rightly acquitted the co-accused Mahendra Singh and benefit of acquittal of co- accused cannot be extended to the present appellant. Further, it is also to be noted here that against the acquittal of co-accused Mahendra Singh no appeal has been preferred and the order of his acquittal has become final. 20- For the reasons as stated above, we do not find any sufficient reason to interfere with the conviction and sentence, recorded by the trial court against accused/appellant Virendra Singh under Section 302 I.P.C. Accordingly, appeal is liable to be dismissed. 21- Accordingly, appeal is dismissed. The impugned judgment and order dated 16.8.1997 is hereby confirmed. Accused/appellant Virendra Singh is on bail. His bail bonds are cancelled and sureties discharged. He shall be taken into custody forthwith to serve out the sentence awarded by the trial court. 22- Let the record be transmitted to the trial court 12 for compliance to be reported to this Court within two months. (Nirmal Yadav, J.) (B.C. Kandpal, J.) 30-03-2010 SP