IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No.1 of 2001 1.Jasbeer Singh S/o Late Balkar Singh 2.Munna Fakir alias Munna S/o Dula Shah Both residents of Kunwarpur Sisaiya, Police Station Sittarganj, District Udham Singh Nagar …..Appellants Versus State of Uttaranchal (Uttarakhand) ….Respondent Shri M.S. Pal, Senior Advocate assisted by Shri Deepak Bisht, Advocate present for the appellants. Shri Amit Bhatt, A.G.A. present for the State. Dated: 20th April, 2011 Coram: Hon’ble Prafulla C. Pant, J. Hon’ble V.K. Bist, J. Prafulla C. Pant, J. (Oral) This appeal, preferred under Section 374 of Code of Criminal Procedure, 1973 (for short Cr.P.C), is directed against the judgment and order dated 20th December, 2000 passed by 2nd Additional Sessions Judge, Nainital in Sessions Trial No. 173 of 1996, whereby said court has convicted the two appellants, namely, Jasbeer Singh and Munna Fakir under Section 302 read with Section 34 of the Indian Penal Code, 1860 (for short I.P.C) and, sentenced each one of them imprisonment for life and to pay a fine of ` 10,000/-. 2. Heard learned counsel for the parties and perused the lower court record. 2 3. Prosecution story, in brief, is that P.W.1 Parmindar Singh (complainant), Devendar Singh (deceased), Jasbeer Singh (accused/appellant no.1), and two others, namely, Hardeep Singh and Ravindar Singh were five real brothers. Their father Balkar Singh resident of village Kunwarpur, Sisaiya died about five years before the date of incident, whereafter the property, inherited by the five brothers got partitioned between Devendar Singh (deceased) and Jasbeer Singh (accused/appellant no.1). The other three brothers Parmindar Singh, Hardeep Singh and Ravindar Singh started living with their elder brother Devendar Singh, who was married to P.W.4 Gurdeep Kaur. P.W.2 Ranjeet Singh is son of Gurdeep Kaur & Devendar Singh (deceased). Accused Jasbeer Singh was annoyed with his brother Devendar Singh, as he felt that he (Devendar Singh) has, infact, occupied shares of all the three brothers, who were living with him. He (Jasbeer Singh) used to ask to oust the three younger brothers, who were living with him, so that their land could be shared by the accused/appellant no.1 and the deceased, but Devendar Singh refused to oblige. Due to this enmity, in the intervening night of 24/25 of November, 1995 at about 1:15 a.m., accused/ appellant Jasbeer Singh, armed with a rod accompanied with accused/appellant Munna Fakir, who was armed with country made pistol, came to the CHHAPPAR (hut) of Devendar Singh, who was sleeping on a cot in the verandah, when the two came to verandah, P.W.4 Gurdeep Kaur (wife of Devendar Singh) and P.W.1 Parmindar Singh (brother of Devendar Singh) got up. They saw that Jasbeer Singh had caught hold of hands of the deceased and accused/appellant Munna Fakir fired shot from the country made pistol, from a close range, on his head, and both of them ran away towards GURDWARA. The incident was also witnessed by P.W.2 Ranjeet Singh (minor son of Devendra Singh), who was also sleeping in the nearby cot. According to prosecution, electric bulb was lighting in the verandah. Report (Ext.A-1) of the incident was lodged by P.W.1 Parmindar Singh on 25.11.1995 at 5:45 a.m. at Police Station Sittarganj, on the basis of which crime no.456 of 1995 was registered relating to offence punishable under Section 302 I.P.C. against the two accused Jasbeer Singh and Munna Fakir. Investigation was taken up by P.W.6 Sub Inspector P.L. Arya, who went to the spot on the very day (25.11.1995), got the dead body of Devendar Singh sealed and prepared Inquest Report (Ext.A-12). Police also prepared other necessary papers i.e. Sketch of the dead body (Ext.A-13), Police Form No.13 (Ext.A-14), Sample Seal (Ext.A-15), Letter to Chief Medical Officer (Ext.A-16) before the dead body was sent, in a sealed condition, for post mortem examination. P.W.3 Dr. Shailendra Kumar Mishra, Medical Officer, conducted post mortem examination on the dead body of Devendar Singh on the very day (25.11.1995) at about 3:00 p.m. He recorded one ante mortem firearm injury on the left eye and opined that deceased had died of shock and haemorrhage due to ante mortem injuries. The Medical Officer prepared the Autopsy Report (Ext.A-2). On the next day (26.11.1995) the two 4 accused were arrested and a country made pistol and two cartridges were said to have been recovered from their possession by the Investigating Officer, who got registered two separate crime nos.457 of 1995 and 458 of 1995 registered against the two accused relating to offence punishable under Section 25 Arms Act, which were investigated by P.W.5 Sub Inspector B.D. Saraswat. Both the Investigating Officers, after interrogating the witnesses and completing investigation, submitted charge sheets against the accused/appellants Jasbeer Singh and Munna Fakir. Charge Sheet (Ext.A-22) was submitted by P.W.6 Sub Inspector P.L. Arya for trial of the two accused Jasbeer Singh and Munna Fakir in respect of offence punishable under Section 302 I.P.C., while P.W.5 Sub Inspector B.D. Saraswat submitted charge sheet (Ext.A-8) against Jasbeer Singh and charge sheet (Ext.A-9) against the accused Munna Fakir for their trial in respect of offence punishable under Section 25 Arms Act. [Earlier Sittarganj was part of District Nainital]. 4. The Magistrate, on receipt of the charge sheets, after giving necessary copies to the accused, as required under Section 207 Cr.P.C, committed the cases to the Court of Sessions for trial. Sessions Trial No.173 of 1996 has arisen out of crime no.456 of 1995 relating to offence punishable under Section 302 I.P.C., Sessions Trial No.174 of 1996 arose out of crime no.457 of 1995 relating to offence punishable under Section 25 Arms Act, against accused Jasbeer Singh and Sessions Trial No.175 of 1996 arose out of crime no.458 of 1995 relating to offence punishable under Section 25 Arms Act, against accused Munna Fakir. All the three cases were consolidated and evidence was recorded together. On 30th March, 1996, the trial court, after hearing the parties, framed charge of offence punishable under Section 302 I.P.C. against accused Munna Fakir and a separate charge relating to offence punishable under Section 302 read with Section 34 I.P.C. against accused Jasbeer Singh. Both pleaded not guilty and claimed to be tried. Separate charges appear to have been framed against the two accused in respect of offence punishable under Section 25 Arms Act, which were also denied by the accused, who claimed their trial. On this, prosecution got examined P.W.1 Parmindar Singh (complainant and eyewitness), P.W.2 Ranjeet Singh (minor son of deceased and eyewitness), P.W.3 Dr. Shailendra Kumar Mishra, who conducted post mortem examination, P.W.4 Smt. Gurdeep Kaur (widow of the deceased and eyewitness), P.W.5 Sub Inspector B.D. Saraswat, who investigated the crime relating to offence punishable under Section 25 Arms Act, and P.W.6 Sub Inspector P.L. Arya, who investigated the crime relating to offence punishable under Section 302 I.P.C. Oral and documentary evidence appears to have been put to the accused under Section 313 Cr.P.C., in reply to which they alleged the same to be false. The accused pleaded that they had been falsely implicated due to enmity. In defence, D.W.1 S.K. Garg, Sub Divisional Officer of Power Corporation, was got examined, on behalf of the 6 accused. After hearing the parties, the trial court found both the accused Jasbeer Singh and Munna Fakir guilty of charge of offence punishable under Section 302 read with Section 34 I.P.C. However, the trial court found that the prosecution failed to prove charge of offence punishable under Section 25 Arms Act beyond reasonable doubt against the two accused and acquitted them of said charge. After hearing on sentence, each one of the convicts was sentenced to imprisonment for life and directed to pay a fine of ` 10,000/-, in default of payment of which further rigorous imprisonment for one year was directed to be served. Aggrieved by the said judgment and order dated 20th December, 2000 passed by 2nd Additional Sessions Judge, Nainital in Sessions Trial No.173 of 1996, this appeal was filed by the two convicts. 5. Before further discussion, we think it just and proper to mention the ante mortem injury recorded by P.W.3 Dr. Shailendra Kumar Mishra, at the time of post mortem examination, on the dead body of Devendar Singh. The ante mortem injury is being reproduced below from Autopsy Report (Ext.A-2):- “Left eye lacerated, margins inverted, blackening and tattooing present all around the left eye, and blackening also present over whole face. Direction wound is towards left side of neck and chest. On exposing the track of entry one metallic piece and two pieces of wades was found in upper part of left pleural cavity. Upper part of left lung was lacerated.” The Medical Officer concluded, in the Autopsy Report, that the deceased had died of shock and haemorrhage due to ante mortem injury. P.W.3 Dr. Shailendra Kumar Mishra has stated that the injury could have been caused by firearm. He further told that it could have been caused in the intervening night of 24/25 November, 1995 at about 1:15 a.m. From the medical evidence on record, in our opinion, it is established that deceased (Devendar Singh @ Kukka) had died homicidal death. Now, we have to examine whether the accused/ appellants Jasbeer Singh and Munna Fakir, with common intention, committed murder of Devendar Singh @ Kukka as suggested by the prosecution. 6. P.W.1 Parmindar Singh is real brother of accused/ appellant Jasbeer Singh, and that of deceased (Devendar Singh). He has stated, on oath, that Devendar Singh was his eldest brother. Next one is Jasbeer Singh (accused/appellant no.1). Next to him was Hardeep Singh, then he himself (P.W.1) and the youngest one is Ravindar Singh. The witness further states that he used to live with Devendar Singh. P.W.1 Parmindar Singh has further stated that about 5 years before the incident, his father died, whereafter Jasbeer Singh got his share in the land partitioned from Devendar Singh. The witness further states that the rest of three younger brothers started living with Devendar Singh, the eldest brother. He has further told that Jasbeer Singh was not happy with Devendar Singh, as he had allowed to stay the rest of the three younger brothers with him. P.W.1 Parmindar Singh has further told that on 24.11.1995 at about 4:00 p.m. accused/appellant Jasbeer Singh came and had a quarrel with Devendar Singh, whereafter in the same night (24/25 November, 1995) accused/ appellants Jasbeer Singh and Munna Fakir came in the verandah, where Devendar Singh was sleeping. The witness has further narrated that Jasbeer Singh was armed with a rod and Munna Fakir was armed with a country made pistol. He further states that there was electric light of a bulb in the verandah. According to P.W.1 Parmindar Singh, Jasbeer Singh threatened Devendar Singh that he would not leave him alive, as he had gobbled all the money of all the brothers. On this, the witness states that he got up and saw that accused Jasbeer Singh had caught hold of Devendar Singh and accused Munna Fakir fired shot at him (Devendar Singh), whereafter the two accused ran away towards GURDWARA. The witness has proved the First Information Report (Ext.A-1), lodged by him at the Police Station. The witness was cross-examined, at length, but nothing has come out in his cross- examination, which creates doubt in his testimony. 7. P.W.2 Ranjeet Singh (minor son of the deceased), and P.W.4 Smt. Gurdeep Kaur (widow of the deceased) have corroborated the entire prosecution story, as narrated by P.W.1 Parmindar Singh. The presence of three eyewitnesses, in their house, at 1:15 a.m. at the time of incident, appears to be natural and cannot be doubted. They had no reason to implicate the two 9 accused/appellants falsely, in the murder of Devendar Singh. There is no inconsistency in the statements of the three eyewitnesses. It is pertinent to mention here that P.W.1 Parmindar Singh is equally related to the deceased and the accused Jasbeer Singh. The testimony of the three eyewitnesses is further supported by the medical evidence on record, already discussed above. In our opinion, the trial court has rightly believed the statements of the three eye witnesses to conclude that the prosecution has successfully proved that the two accused, with common intention, committed murder of Devendar Singh, in the intervening night of 24/25 November, 1995. 8. On behalf of the appellants attention of this Court is drawn to the statement of D.W.1 S.K. Garg, Sub Divisional Officer of Power Corporation, who has stated that electric connection no.4529/081263 was installed in the house of Smt. Gurdeep Kaur (P.W.4) only on 25.01.1996. On its basis, it is argued that there was no source of light in the house of the deceased and the story of prosecution, that the electric bulb was lighting in the verandah, cannot be accepted. We have carefully gone through the evidence on record. It has come in the evidence of P.W.2 Ranjeet Singh that on the day of incident, there was no electric meter installed in the house. In this connection, P.W.6 Sub Inspector P.L. Arya has stated that on the day of incident, there was electric light in the house, but it was being taken illegally. We are not concerned with the legality of the connection. We are concerned as to whether the witnesses were able to see the accused, committing the crime at the time of incident or not? Assuming for a moment that there was no electric light in the house at the time of incident, there was no difficulty for any of the eyewitnesses in identifying the accused Jasbeer Singh who was their close relative and accused Munna Fakir who was their neighbour. 9. Learned counsel for the appellants submitted that P.W.2 Ranjeet Singh, aged 14 years, is a tutored witness and his evidence cannot be relied upon. On going through the statement of P.W.2 Ranjeet Singh carefully, we find that, though he is a minor boy, who is a student, it clearly shows that he is making a natural narration of the facts in answers to the questions put to him. He has not avoided to answer any of the questions put to him in the cross- examination. As such, we do not find substance in the arguments advanced on behalf of the appellants. 10. Lastly, it is pointed out that recovery of country made pistol and the cartridges has not been found proved by the trial court, as such, the statements of eyewitness does not get corroborated from the alleged recovery, said to have been made from the accused. We have scrutinized the evidence on record, and we find that the charge of offence punishable under Section 25 Arms Act was an independent charge. Assuming for a moment that the trial court failed to prove the recovery of country made pistol and the cartridges from the 11 accused, it does not shake the otherwise natural ocular evidence given by the three eyewitnesses narrating the commission of crime of murder of Devendar Singh, with common intention, by the accused/appellants. 11. In the present case, the First Information Report is a prompt one. The ocular evidence of the eyewitnesses gets corroboration from the medical evidence on record. Perusal of statement of P.W.4 Gurdeep Kaur shows that while giving evidence in the court, the said witness broke down and her tears started rolling down on her face (as observed by the trial court). 12. For the reasons, as discussed above, we do not find force in this appeal, which is liable to be dismissed. Accordingly, the appeal is dismissed. Impugned judgment and order dated 20th December, 2000 passed by 2nd Additional Session Judge, Nainital in Sessions Trial No.173 of 1996, whereby the accused/appellants Jasbeer Singh and Munna Fakir are convicted under Section 302 read with Section 34 I.P.C. and each one of them sentenced to imprisonment for life and directed to pay a fine of ` 10,000/-, is hereby affirmed. The accused/appellants are on bail. Their bail is cancelled. Let the lower court record be sent back to make the accused/appellants serve out the sentence, awarded by the trial court. Arpan (V.K. Bist, J.) (Prafulla C. Pant, J.) 20.04.2011