IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 1304 of 2001 (Old No. 1124 of 1992) 1. Ram Singh (since deceased) S/o Sunder Singh 2. Karnail alias Channi S/o Ram Singh. 3. Uttam, S/o Thakar Singh 4. Pappi (since deceased) S/o Kushal Singh All resident of Haripura Jabaran P. Harpura, Nainital. ……..Appellants. Versus State …….…Respondent. Shri Bhuwanesh Joshi, Amicus Curiae, for the appellants. Shri Nandan Arya and Shri Harish Pujari, learned A.G.A. for the State. Coram: Hon’ble Prafulla C. Pant, J. Hon’ble Dharam Veer, J. Oral:- Hon’ble Prafulla C. Pant, J. This appeal, preferred under Section 374 (2) of Code of Criminal Procedure, 1973 (herein after referred as Cr.P.C.), is directed against the judgment and order dated 25.05.1992, passed by learned Additional Session Judge/Special Judge, Nainital, in Sessions Trial No. 243 of 1990, whereby the accused/appellants- Ram Singh, Karnail alias Channi, Pappi and Uttam Singh are convicted under 302 of Indian Penal Code, 1860 (herein after referred as I.P.C.) and each one of the convicts is sentenced to imprisonment for life. (During pendency of this appeal, appellant No. 1 Ram Singh and appellant No. 4 Pappi, have died and appeal on their behalf stood abated). 2. Smt. Pushpa Joshi, learned counsel for the appellants did not appear in the court and sought several adjournments and did not argue the case. Ultimately Shri Bhuwanesh Joshi, Advocate was appointed as Amicus Curiae to assist the court on behalf of the appellants. This is more than 15 years old appeal, pending for disposal. Heard Shri Bhuwanesh Joshi, Amicus Curiae for the appellants and Shri Nandan Arya and Harish Pujari, learned Additional Government Advocate for the State. (Dharam Pal Vs. State of U.P. A.I.R. 2008 S.C. 920). 3. Prosecution story, in brief, is that on 28.07.1990, at about 8:00 p.m., accused/appellant Ram Singh armed with BALLAM, accused/appellant Karnail alias Channi, armed with axe, accused/appellant Pappi armed with LATHI and accused/appellant Uttam Singh armed with PATAL, came to the house of Mohan Ram (deceased) in Village Maaldhan within the limits of police station Ram Nagar District Nainital. They asked Mohan Ram to come out. The moment, Mohan Ram came out, he saw the four armed with deadly weapons, and to save himself ran towards house of his neighbour Shabir alias Sufi (P.W. 3). On this, the aforesaid accused/appellants chased and surrounded him and gave blows with the weapons they were armed with. Meanwhile, hearing the shouts, P.W. 1 Hari Ram, P.W. 2 Baldev, P.W. 3 Shabir alias Sufi and P.W. 4 Shanti Devi (widow of the deceased) also reached there. They (witnesses) challenged the accused, on which they (accused) ran away leaving Mohan Ram dead on the spot. The report of the incident could not be lodged on the very day as it was night, and police station was at a distance of 35 Kms. away from the place of incident. Apart from this, there was swollen water in the river on way between police station and to the place of incident. On 29.07.1990, P.W. 1 Hari Ram lodged First Information Reprot (Ext. A-1) with police station Ramnagar, narrating the aforesaid incident. He further disclosed in the First Information Report that before the date of incident, accused/appellant Karnail alias Channi, son of Ram Singh and accused/appellant Pappi, had molested Shanti Devi (P.W. 4), widow of the deceased due to which there had been a quarrel between the two sides. P.W. 7 Head Constable Ram Pal Singh, registered First Information report and prepared check report (Ext. A-10) at about 8:45 p.m., and made necessary entry in the general diary, copy of which is Ext. A-11. The investigation was initially taken up by P.W. 6 Sushil Kuarm, Sub-Inspector who went to the spot on 29.07.1990, took the dead body of Mohan Ram in his possession, and prepared inquest report (Ext. A- 3). He further prepared sketch of the dead body (Ext. A- 6), police form No. 13 (Ext. A-7), and letter to Chief Medical Officer, requesting for post mortem examination. Said Investigating Officer also took blood stained soil and simple soil from the spot and prepared memorandum (Ext. A-2). Thereafter, the dead body was sent for post mortem examination. P.W. 5 Dr. R.A. Gupta, conducted the post mortem examination on the dead body of Mohan Ram at 4:30 p.m. on 29.07.1990, and opined that the deceased has died due to shock and hemorrhage as a result of ante mortem injuries. P.W. 6 Sushil Kumar. Who initially investigated the crime got transferred and thereafter the investigation was taken up by P.W. 8 V.P. Sharma. He also got transferred and finally investigation was completed by P.W. 10 Sudrendar Kumar Station House Officer, who on completion of the investigation, submitted charge sheet (Ext. A-9) against all the four accused namely Ram Singh, Karnail alias Channi, Pappi and Uttam Singh for their trial in respect of offence punishable under Section 302 I.P.C. 4. The Magistrate on receipt of charge sheet, after giving necessary copies to the accused, as required under Section 207 Cr.P.C., appears to have transferred the case to the Court of Additional Session Judge, Nainital. On 26.10.1990, learned Additional Sessions Judge, Nainital, after hearing the parties, framed charge of offence punishable under Section 302 I.P.C. against all the four accused namely Ram Singh, Karnail Singh alias Channi, Pappi and Uttam Singh. All of them pleaded not guilty and claimed to be tried. On this prosecution got examined P.W. 1 Hari Ram, complainant and eye-witness, P.W. 2 Baldev, another eye-witness, P.W. 3 Sufi Sabbir Ahmad, third eye- witness, P.W. 4 Shanti Devi, widow of the deceased, fourth eye-witness, P.W. 5 Dr. R.A. Gupta, who conducted post mortem examination of Mohan Ram, P.W. 6 Sub-Inspector Sushil Kumar, who initially investigated the crime, P.W. 7 Head Constable Ram Pal Singh, who registered the First Information report and prepared check report (Ext. A-10), and made necessary entry in the general diary, P.W. 8 V.P. Sharma, who further investigated the crime after transfer of Shri Sushil Kumar, P.W. 9 Constable Tara Chandra Kandpal, who took the dead body in a sealed condition for post mortem examination from the place of incident to Kashipur, where the post mortem examination was conducted, and P.W. 10 Surendra Kuamar Mallik, Station House Officer of police station Ramnagar, who completed the investigation and submitted the charge sheet. The oral and documentary evidence was put to the accused under Section 313 Cr.P.C. in reply to which they alleged the same to be false. It is also alleged by them that they were implicated falsely due to enmity. However, no evidence in defence was adduced on behalf of the accused/appellants. After hearing the parties, the trial court found all the four accused guilty of charge of offence punishable under Section 302 I.P.C. and each one of the convicts, after hearing on sentence, was sentenced to imprisonment for life. Aggrieved by said judgment and order dated 25.05.1992, passed in Sessions Trial No. 243 of 1990, by learned Additional Sessions Judge/Special Judge, E.C. Act, this appeal was filed before Allahabad High Court on 22.06.1992, where it was admitted on 24.06.1992. The appeal is received under Section 35 of U.P. Reorganisation Act, 2000, for its disposal. 5. Before further discussions, we think it just and proper to mention here the ante mortem injuries found on the dead body of Mohan Ram, at the time of post mortem examination, recorded by P.W. 5 Dr. R.A. Gupta, who prepared autopsy report (Ext. A-4). Ante mortem injuries recorded by P.W. 5 Dr. R.A. Gupta, in autopsy report, are being reproduced below:- 1. Lacerated wound 3cm x 0.5cm x scalp deep over top of scalp 15 cm posterior to right pinna. 2. Contusion 6cm x 3cm around the left eyeball. 3. Abraded contusion size 20cm x 15cm on right side of chest and upper abdomen below right nipple. 4. Abrasion 5cm X 2cm over left elbow joint. 5. Fracture of 5th to 8th ribs on right side. 6. Lacerated wound 5cm X 3cm X skin deep over right lower leg. 7. Fracture of right lower leg 5cm above the right medial malluoli. 8. Traumatic swelling 20cm X 10cm on left thigh. Fracture of left femer. 9. Abrasion 5cm X 3cm on right thigh 10cm above the knee joint. Medical Officer opined that cause of death of the deceased was shock and hemorrhage as a result of ante mortem injuries, suffered by him. P.W. 5 Dr. R.A. Gupta, has further stated that ante mortem injuries recorded could have been caused by axe, PATAL or LAATHEE. He also stated that the injures could have been caused on 28.07.1990, at 8:00 p.m. Now the question is who has caused ante mortem injures on the persons of Mohan Ram. 6. P.W. 1 Hari Ram, complainant and eye-witness has narrated the prosecution story stating that on 28.07.1990, at about 8:00 p.m. accused/appellant Ram Singh, armed with BALLAM, accused/appellant Karnail alias Channi, armed with axe, accused/appellant Uttam Singh, armed with PATAL, and accused/appellant Pappi, armed with lathi, came to the house of Mohan Ram and asked him to come out. The witness further states that when Mohan Ram came out and saw the accused, he started running towards the house of Shabbir alias Sufi. He was chased by accused/appellants and about 15-20 steps before the house of Shabbir alias Sufi, the accused/appellants gave blows on Mohan Ram with weapons they possessed. Mohan Ram shouted BACHAO! BACHAO! (SAVE! SAVE!). Meanwhile, Mohan Ram’s wife Shanti Devi (P.W. 4), Shabbir alias Sufi (P.W.3), Baldev (P.W.2) and others came out and saw the incident. The witnesses challenged the accused on which, they ran away from the place of incident. However, by then Mohan Ram had died. P.W. 1 further states that he got scribed First Information Report (Ext. A-1) through his nephew and gave the same to the police station on the next day i.e. 29.07.1990. The witness further states that he could not lodge First Information Report on the very day (28.07.1990) as there was swollen water in the river on way to police station. P.W. 1 Hari Ram has further stated that before the day of incident, accused Channi and Pappi has molested Shanti Devi over which they had a quarrel. The witness has further stated that after the First Information report was lodged, police came to the spot and took blood stained soil and simple soil and prepared memorandum (Ext. A-2). 7. P.W. 2 Baldev Prasad, another eye-witness of the incident has corroborated the prosecution story as narrated by P.W. 1 Hari Ram. This witness is also resident of Maldhan Chaur, where the incident has taken, and at the time of incident he was taking his bullocks towards his house. The presence of this witness is also natural at the place of incident. 8. P.W. 3 Shabbir alias Sufi, is yet another eye-witness, who has corroborated the entire prosecution story, as narrated by the aforesaid two witnesses, namely P.W.1 Hari Ram and P.W. 2 Baldev. He is also witness of taking blood stained soil and simple soil from the spot. This witness is not only neighbour of the deceased but also independent witness. As such, his testimony also inspires confidence. 9. P.W. 4 Shanti Devi, widow of the deceased is fourth eye-witness, who has corroborated the prosecution story. She has also narrated that before the day of incident, there had been a quarrel, after accused Pappi and Channi entered in her house and molested her. From the oral testimony of the four eye-witnesses, out of which three had no enmity with the accused/appellants, fully establish on record beyond reasonable doubt that the four accused (present appellants) namely Ram Singh, armed with BALLAM, Karnail alias Channi, armed with axe, Pappi, armed with LATHI, and Uttam Singh armed with PATAl, surrounded Mohan Ram on 28.07.1990, and with common intention, assaulted him and committed his murder. 10. Shri Bhuwanesh Joshi, Amicus Curiae, on behalf of the appellants pointed out that no source of light is disclosed in the First Information Report and it cannot be said that the witnesses had an opportunity to see the accused/appellants committing the crime. Had the parties not known to each other, the relevance of non mentioning of source of light, could have been helpful to the appellants. But in the present case, parties are known to each other and it has come in the evidence of the eye-witnesses, that there was moonlight and they had no difficulty in recognizing the accused at the spot. 11. On behalf of the appellants, it is further contended that there is no incised wound found by the Medical Officer at the time of post mortem examination, as such. it cannot be said that sharp edged weapon PATAL and axe, as claimed by the prosecution were used in commission of crime. We have examined the prosecution evidence carefully and found that the defence while cross examining P.W. 1 Hari Ram and P.W. 2 Baldev, has got explained this fact from the eye witnesses, who have told that the deceased was hit from reverse side of PATAL and axe. As such, it cannot be said that merely on account of there being no incised wound, the prosecution story gets doubtful. 12. Lastly, it is submitted on behalf of the appellants that the injuries recorded by the Medical Officer in the autopsy report do not match with the apparent injury shown in the sketch (Ext. A-6) of the dead body of Mohan Ram. The sketch of the dead body prepared by Investigating Officer on 29.07.1990, does show that there was injury on the head, legs and on the hand. However, there is no injury shown over the chest in the sketch map, but since the ribs were found fractured in the post mortem examination, it is quite possible that when a blow is given by BALLAM and from reverse side of PATAL or axe to a person, who is not naked, there would be no apparent injury on the body but the fractures, which were found inside the body could have been caused by such blows. 13. Having gone through the submissions, advanced on behalf of appellants, and after going through the entire evidence on record, we agree with the trial court that in this case prosecution has been successful in proving the charge that the appellants Karnail alias Channi and Uttam Singh with common intention with other two accused Ram Singh and Pappi, have committed murder of Mohan Ram on 28.07.1900, at 8:00 p.m. in Maldhan Chaur. We do not find that the impugned judgment and order dated 25.05.1992, passed by the trial court in Sessions Trial No. 243 of 1990, suffers from any illegality. Accordingly, the appeal is liable to be dismissed. The same is dismissed. The conviction and sentences awarded by the trial court in respect of accused/appellants Karnail alias Channi and Uttam Singh, are affirmed. They are on bail. Their bail is cancelled. They shall surrender before the court concerned. Registry is directed to send the lower court record back to the trial court, which shall see that the convicts Karnail alias Channi and Uttam Singh serve out the sentences awarded against them. (During the period of pendency of this appeal, accused/appellants Ram Singh and Pappi have died and their cases stood abated). (Dharam Veer, J. ) (Prafulla C. Pant, J.) Dt: 20.05.2008 Sweta