IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 752 of 2001 (Old No. 1213 of 1991) 1. Dhiru @ Dheer Singh (reported to have died) 2. Shyam Singh 3. Ramu @ Ram Singh 4. Suresh All the appellants are sons of Sher Singh R/o Gram Nai Basti, Kasba/ Thana-Tanakpur Distt: Nainital ….. Appellants Versus State of Uttar Pradesh (Now State of Uttarakhand) ………. Respondent Present : Sri Akhileshwar Pandey, Advocate with Sri Kumar Rupak, Advocate and Sri D.K. Sharma, Advocate present for the accused appellants. Sri S.S. Ahdikari, A.G.A. present for the State. Sri B.S. Parihar, Advocate present for the widow of the deceased. Hon’ble Prafulla C. Pant, J. Hon’ble Nirmal Yadav, J. [Oral : Hon’ble Praffulla C. Pant,J. ] This appeal, preferred under section 374 of the Code of Criminal Procedure, 1973 (for short Cr.P.C.), is directed against judgment and order dated 25.05.1991 passed by Additional Sessions Judge, Nainital, in Sessions Trial No.334 of 1989, whereby the said court has convicted appellants Dhiru @ Dheer Singh, Shyam Singh, Ramu @ Ram Singh and Suresh under section 302 of Indian Penal Code, 1860 (for short I.P.C.), and sentenced each one of them to imprisonment for life. 2 2. Heard learned counsel for the parties and perused the reconstructed paper book of the record. 3. Prosecution story, in brief, is that on 19.08.1989 at about 10.00 p.m Suresh Chandra @ Baggad (deceased) was going on motorcycle from Fauzi Hotel to Apsara Cinema in Tanakpur with PW-2 Ram Sumer @ Gantha. Near the gate of Apsara Cinema, on the road, the deceased was surrounded by accused appellants Dheer Singh, Shyam Singh, Ram Singh and Suresh, who were armed with knives. They inflicted knife injuries on the person of Suresh Chandra @ Baggad, and killed him at the spot. PW-3 Hira Ballabh Pandey, who had already reached Apsara Cinema and waiting for the deceased, also witnessed the incident. PW-2 Ram Sumer @ Gantha after the incident, got scribed report (exhibit A-2) through Hira Ballabh Pandey (PW-3), and gave it at police station, Tanakpur. Where on the basis of said report, Check report (exhibit A-7) was prepared, and crime No.70 of 1989 relating to the offence punishable under section 302 IPC was registered against accused appellants Shyam Singh, Suresh, Ram Singh and Dheer Singh. The investigation was taken up by PW-7 Inspector D.K. Kane. The dead body of Suresh Chandra @ Baggad was taken into the possession by the police on 20.08.1989, and inquest report (exhibit A-3) was prepared. The Investigation Officer further got prepared sketch of dead body 3 (exhibit A-16), police form No.13 (exhibit A-12) and letter to Chief Medical Officer (exhibit A-14) requesting him for postmortem examination, and sample seal (exhibit A-13). The Investigating Officer further got prepared site plan (exhibit A-17) and memorandum of recovery bloodstained soil and simple soil (exhibit A-5). 4. PW-1 Dr. Subedar Singh conducted postmortem examination on dead body of Suresh Chnadra @ Baggad on 20.08.1989 at about 03.15 p.m. and prepared autopsy report (exhibit A-1). He recorded as many as eleven ante mortem injuries on the dead body of the deceased. The Medical Officer opined that deceased had died due to shock and haemorrhage as a result of ante mortem injuries. After interrogating the witnesses and on completion of the investigation, the Investigating Officer submitted the chargesheet (exhibit A-18) against all the four accused namely Dhiru @ Dheer Singh, Shyam Singh, Ramu @ Ram Singh and Suresh for their trial in respect of the offence punishable under section 302 IPC. 5. The Chief Judicial Magistrate, Nainital, on receipt of chargesheet, after giving necessary copies to the accused/appellants, as required under section 207 of Cr.P.C., appears to have committed the case to the court of Sessions for trial.(Earlier Tanakpur was 4 part of district Nainital). The Additional Sessions Judge, Nainital, on 26.04.1990 after hearing the parties, framed the charge of offence punishable under section 302 IPC to which all the four accused pleaded not guilty and claimed to be tried. On this, prosecution got examined PW-1 Dr. Subedar Singh who conducted the postmortem examination, PW-2 Ram Sumer @ Gantha (complainant and eye witness), PW-3 Hira Ballabh Pandey (another eye witness and scribe of the report), PW-4 Constable Hayat singh who took the dead body in a sealed condition for postmortem examination, PW-5 Head Constable Ramesh Ram who prepared check report (exhibit A-7), PW-6 Sub Inspector Jaman Singh who prepared the inquest report and PW-7 D.K. Kane, the Investigating Officer. 6. The oral and documentary evidence was put to the accused under section 313 of Cr.P.C. in reply to which they alleged the evidence as false. They further pleaded that they have been falsely implicated due to enmity. However, no evidence in defence was adduced before the trial court. The trial court after hearing the parties found that prosecution has successfully proved the charge of offence punishable under section 302 IPC read with section 34 against all the four accused Dhiru @ Dheer Singh, Shyam Singh, Ramu @ Ram Singh and Suresh. After hearing on sentence, all four accused were sentenced to 5 imprisonment for life. Aggrieved by the said judgment and order dated 25.05.1991 passed by Additional Sessions Judge, Nainital in Sessions Trial No.334 of 1989, this appeal was preferred before Allahabad High Court in June, 1991. The appeal was received by this Court under section 35 of U.P. Re- organization Act, 2000 (Central Act No. 29 of 2000), for its disposal. 7. Before further discussion, we think it just and proper to mention here that record of this appeal along with lower court record was got lost after it was received by this Court. The reconstructed record further shows that till September,2005, the original record was available with this Court. However, thereafter, the same got lost. The fact came to the light when the widow of the deceased moved an application before this Court in September, 2010 under Right to Information Act, 2005 regarding details of disposal of this appeal. On 28.09.2010 widow of the deceased moved an application No.3684 of 2010 before this Court praying for early hearing of this Criminal appeal. On the said date, learned counsel for the widow of the deceased apprised to this Court, after mentioning the matter that the record of the appeal was got disappeared from the Court’s record. Learned counsel for the widow of the deceased on that day further submitted that the widow of the deceased is being threatened by the 6 accused. On coming to know the fact, relating to the disappearance of the record, this Court took the matter seriously and directed the Registrar (Judicial) to get record reconstructed from the paper book available with the counsel for the State. This Court further cancelled the bail was granted to the appellants on 23.09.2005. Perusal of the report dated 07.09.2010 of Assistant Registrar (Criminal) of this Court, on the record shows that when the application was moved under Right to Information Act, 2005 regarding this appeal (Criminal Appeal No.752 of 2001), it was found that record the case is not traceable. It was also found that the pages of master register were found removed. Not only this, entries from the computer were also got deleted. Registrar (Judicial) has orally informed to this Court that first information report has already been now lodged in the matter after obtaining orders from Hon’ble the Chief Justice. 8. The statement of PW-1 Dr. Subedar Singh read with the copy of the autopsy report (exhibit A-7) shows that the following ante mortem injuries were found on the dead body of Suresh Chandra @ Baggad on 20.08.1989 at the time of postmortem examination :- (i) Incised wound in the front of neck 18cm x 5cm into trachea deep, from one corner of mandible to another corner. 7 (ii) 08 incised wounds on the left side of the chest in an area of 15cm x 5cm x muscle deep. (iii) Two punctured wounds on right side chest in the intercostals space 2cm x 0.5cm x cavity deep. (iv) Three incised wounds on right side of the chest in an area between right nipple to right sternum smallest 1cm x 05.cm, largest 1.5cm x 0.5 cm x muscle deep. (v) Two incised wounds right side abdomen, 6cm apart upper one, 5cm below the costal margin, each measuring 5cm x 1cmx cavity deep and tailing to middle area. (vi) Incised wound on lower abdomen, lying horizontal, tailing to left 5cm below umbilicus in an area of 5.5 cm x 1.cm. (vii) Incised wound on left shoulder joint interior surface in an area of 9cm x 4cm x bone deep. (viii) Incised wound on right arm interior surface 1.5cm x 1.5 cm x muscle deep, 15cm above the right elbow joint. (ix) Incised wound on right thigh interior surface 1.0cm x 0.5cm x muscle deep. (x) Incised wound on left thigh interior aspect 1cm x 0.5 cm, 15cm. above the knee joint. 8 (xi) Incised wound on left patilla 0.5cm x 0.5cmx bone deep. The medical officer in the autopsy report opined that deceased had died due to shock and haemorrhage as a result of ante mortem injuries. The medical evidence as brought on record read with the statement of PW-1 Dr. Subedar Singh proves on the record that on 19.08.1989 Suresh Chandra @ Baggad had died a homicidal death. Now this Court has to see whether accused/appellants have committed murder with common intention, or not. 9. PW-2 Ram Sumer @ Gantha is the complainant and eyewitness of the incident, who states that on the day of incident, he was accompanying the deceased on the motorcycle, on way to Apsara Cinema. He has stated that accused Suresh, Dhiru @ Dheer Singh, Shyam Singh and Ramu @ Ram Singh armed with knives attacked Suresh Chandra Gupta (alias Baggad) with whom they had old enmity. PW-2 Ram Sumer @ Gantha further states that all the four accused assaulted with the knives. He further stated that PW-3 Nem Pandey @ Hira Vallabh Pandey also witnessed the incident. He (PW-2) has further stated that he got scribed the report (exhibit A-2) through Nem Pandey and gave at the police station Tanakpur. The witness has stated that incident took place at 10:00 p.m. in the night. PW-2 Ram Sumer further states that on the next day, 9 inquest report (exhibit A-3) was prepared by the police in his presence. He has also stated that the motorcycle, in which deceased and PW-2 Ram Sumer were going towards Apsara Cinema was lying at the spot and taken into possession by the police and memorandum of recovery (exhibit A-6) was prepared. 10. Statement of the complainant (PW-2) gets corroboration from the testimony of PW-3 Hira Vallabh Pandey @ Nem Pandey. This witness has stated that on the day of incident at about 10:00 p.m., all the four accused assaulted Suresh @ Baggad. He has further stated that when the alarm was raised, the accused threatened the witnesses of dire consequences and ran away. This witness has further disclosed that there was a mercury light at the place of the incident. 11. On behalf of the accused appellants, it is stated that PW-3 Hira Vallabh Pandey is resident of Gethia, and his presence in Tanakpur at the spot on the day of incident is doubtful. We have carefully gone through the statement of PW-3 Hira Vallabh Pandey and found that no doubt he is a chance witness, but on the day of incident his presence in Tanakpur cannot be doubted as he is the person who scribed the report, which was lodged at police station Tanakpur, within 45 minutes of the incident. Apart from this PW-3 Hira Vallabh Pandey @ Nem Pandey 10 has further stated that he used to go Tanakpur once or twice in a month, and used to stay in the hotel of the deceased. He has further disclosed in his cross examination that he knew the accused as they also used to come in the hotel of the deceased and they had their shops in front of the hotel run by the deceased. As to the acquaintance of the Suresh Chandra (deceased) in the cross examination, PW-3 Hira Vallabh Pandey @ Nem Pandey states that he met him for the first time in a procession of Uttarakhand Kranti Dal (for creation of State of Uttarakhand) about two years before the incident and since then he used to go and stay in his hotel. 12. Sri Akhileshwar Pandey, learned counsel for the appellants drew attention of this Court to the contradictions between the statements of PW-2 Ram Sumer @ Gantha and that of PW-3 Hira Vallabh Pandey @ Nem Pandey, and argued that in view of the contradictions, the testimonies of the two eyewitnesses cannot be said to be reliable. However, minor contradictions in the statement of the two eyewitnesses, in our opinion, do not create any reasonable doubt, as to the truthfulness of the prosecution story. 13. It is also pointed out on behalf of the appellants that no knife was recovered from any of the accused by the Investigating Officer. After going 11 through the statements of the eyewitnesses and other evidence on record, we are of the view that the testimony of the two eyewitnesses cannot be doubted merely on the ground that the Investigating Officer did not recover knives from the accused. For the lapses on the part of the Investigating Officer, otherwise truthfulness narration of the incident by the eye witnesses read with the medical evidence (postmortem report) cannot be doubted. 14. It is also contended that there is no evidence on the record to show that the accused had common intention to commit the crime. Having gone through the evidence of the eyewitnesses, we find that the common intention can be gathered from the acts and conduct of the accused. There cannot be direct evidence of common intention, as no witness can state as to the state of mind of another person. The courts have to gather it from the circumstances of the case whether all the accused had intention to commit the crime with the co-accused or not. There is consistent evidence of the two eyewitnesses that all the four accused inflicted knife injuries on the person of Suresh Chandra Gupta @ Baggad. Ante mortem injuries shows that there were 11 ante mortem injuries which included 10 incised wounds. In two of the ante mortem injuries number of incised wounds included are more than one. Had it been a case where only couple of incised wounds were caused and 12 number of accused were more than the number of injuries, it could have been contended that those who did not cause incised wounds had no common intention with those who caused injuries, but in the present case it is not so. 15. It is also submitted on behalf of the appellants that it is not clear from the record as to how the accused knew that the deceased was coming to Apsara Cinema. We have read the evidence of the eyewitnesses and that of the Investigating Officer, and also perused the site plan. The Fauzi Hotel run by the deceased is said to be hardly 300 paces away from the Apsara Cinema and as such, the place where the deceased was assaulted by the accused was not such place for which they needed specific information that the deceased is going there. 16. For the reasons as discussed above, we do not find any force in this appeal, which is liable to be dismissed. Accordingly, the appeal is dismissed. Appeal of accused appellant Dhiru alias Dheer Singh stands abated in view of his death during pendency of this appeal conviction and sentence awarded by the trial court against other accused appellants namely Shyam Singh, Ramu alias Ram Singh & Suresh is affirmed. They shall serve out sentence awarded against them. Let a copy of this judgment be sent to the trial along with the copy of the reconstructed 13 paper book to make the accused appellants Shyam Singh, Ramu @ Ram Singh and Suresh serve out the sentence awarded against them by the trial court. (Nirmal Yadav, J.) (Prafulla C. Pant, J.) JKJ 26.10.2010