IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 1410 of 2001 (Old No. 1692 of 1996) Jhagaru S/o Vishwanath R/o Khilariya Police Station Khatima District Nainital at present District Udham Singh Nagar. ……Appellant. Versus State .……….Respondent. Shri M.S. Pal, Sr. Advocate, assisted by Shri C.S. Dumka, Advocate for the appellant. Shri Harish Pujari, A.G.A. for the State. Coram:Hon’ble Prafulla C. Pant, J. Hon’ble B.S. Verma, J. Per:-Hon’ble Prafulla C. Pant, J. This appeal, preferred under Section 374 of Code of Criminal Procedure, 1973 (herein after referred as Cr.P.C.), is directed against the judgment and order dated 11.09.1996, passed by learned IInd Additional Sessions Judge, Nainital, in Sessions Trial No. 229 of 1995, whereby accused/appellant Jhagaru, is convicted under Section 302 of Indian Penal Code, 1860 (herein after referred as I.P.C.), and sentenced to imprisonment for life. 2. Heard learned counsel for the parties and perused the lower court record. 2 3. Prosecution story in brief is that accused/appellant Jhagaru, had enmity with Arjun Prasad (deceased) due to election rivalry of Village Pradhan. On 27.01.1995, at about 7:00 p.m., when Arjun Prasad (deceased) was returning from a floor mill, in Village Khilariya, accused/appellant Jhagaru, armed with a sharp edged weapon with his father accused Vishwanath and associate Rajesh Kumar, both armed with lathi, surrounded him (Arjun Prasad). They dragged him and assaulted him. On hearing shouts, P.W. 1 Nakul, who was sitting on a culvert near Sharda Sagar BANDH (Dam) with P.W. 2 Ram Lochan and P.W. 3 Ramagya, ran towards the place of incident and saw the accused/appellant Jhagaru assaulting the deceased. The injured Arjun Prasad fell down after receiving injuries. Accused/appellant Jhagaru, along with his two associates after causing injuries on person of Arjun Prasad, ran away. The three witnesses, took the injured Arjun Prasad to the nearest Government Hospital, at Khatima, where he was declared brought dead. Thereafter, at 9:45 p.m., on the same day (27.01.1995), P.W. 1 Nakul, lodged First Information Report (Ext. A-1) at police station Khatima, against accused/appellant Jhagaru and other two accused Vishwanant and Rajesh Kumar. On the basis of said report, crime No. 22 of 1995, was registered against three accused namely, Jhagaru (appellant), Vishwanath and Rajesh Kumar, relating to offence punishable under Section 302 I.P.C. P.W. 6 Sub-Inspector Om Pal 3 Singh, took up the investigation. On the next day i.e. 28.01.1995, in early hours, dead body of the deceased lying in the hospital, was taken by police in their possession, and inquest report (Ext. A-6) was prepared. Police also prepared simultaneously the sketch (Ext. A- 9) of the dead body, police form No. 13 (Ext. A-7), letter (Ext. A-8) to the Chief Medical Officer, Pilibhit (nearest adjoining District Headquarter), requesting him for post mortem examination. The post mortem examination was conducted by P.W. 4 Dr. Kripal Singh, at 3:30 p.m. on 28.01.1995, who recorded as many as 14 ante mortem injuries, which included 11 incised wounds, and prepared autopsy report (Ext. A- 2). The Medical Officer opined that the deceased had died on account of shock and haemorrhage due to ante mortem injuries. Meanwhile, the investigation was transferred to P.W. 7 Incharge Inspector Sultan Singh, who went to the spot, prepared site plan (Ext. A-14) and interrogated the witnesses. He also took the lanterns (in the light of which the witnesses had seen the incident) and prepared memorandum (Ext. A-16) after giving back the lanterns to their owners. Also, during the investigation, from the place of incident simple soil and blood stained soil was collected by the Investigating Officer, who prepared memorandum (Ext. A-15). On completion of the investigation, the police submitted charge sheet (Ext. A-17) against all the three accused namely accused/appellant Jhagaru and other two accused Vishwananth and Rajesh Kumar for 4 their trial in respect of offence punishable under Section 302 I.P.C. Also, report (Ext. A-26) was received from Forensic Laboratory in which it was reported that blood stained soil (taken from the spot) and the clothes of the deceased, sent in sealed cover, contained human blood. 4. The 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 30.06.1995, IInd Additional Sessions Judge, Nainital, to whom the case was transferred for trial, after hearing the parties, framed charge of offence punishable under Section 302 I.P.C. against accused (present appellant) Jhagaru. Charge under Section 302 read with Section 34 I.P.C. was framed against other two accused namely Vishwanath and Rajesh Kumar. All the three accused pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1 Nakul (complainant and eye witness), P.W. 2 Ram Lochan (another eye witness), P.W. 3 Ramagya Prasad (third eye witness), P.W. 4 Dr. Kripal Singh (who conducted post mortem examination), P.W. 5 Constable Trilok Chand (who prepared check report of the First Information Report), P.W. 6 Sub-Inspector Ompal Singh (who started the investigation), and P.W. 7 Inspector Incharge Sultan Singh (who completed the investigation). The oral and documentary evidence 5 was put to the accused under Section 313 Cr.P.C. in reply to which they alleged the same to be false. The accused alleged that they have been falsely implicated due to enmity. However, no evidence in defence was adduced. The trial court after hearing the parties, found accused/appellant Jhagaru guilty of charge of offence punishable under Section 302 I.P.C. However, as to the other two accused Vishwanath and Rajesh Kumar, the trial court found that the charge as against them relating to offence punishable under Section 302 read with Section 34 I.P.C. is not proved beyond reasonable doubt, as such, the two were acquitted. The convict (present appellant) was heard on sentence and sentenced to imprisonment for life. Aggrieved by said judgment and order dated 11.09.1996, passed by IInd Additional Sessions Judge, Nainital, in Sessions Trial No. 229 of 1995, this appeal was preferred by the convict Jhagaru, before Allahabad High court on 20.09.1996, where it was admitted on 23.09.1996. The appeal is received by this Court under Section 35 of U.P. Reorganisation Act, 2000 (Central Act No. 29 of 2000), for its disposal. 5. Before further discussion, we think it just and proper to mention here the ante mortem injuries, recorded by P.W. 4 Dr. Kripal Singh, on 28.01.1995, at 3:30 p.m. on dead body of Arjun Prasad, which are recorded in autopsy report (Ext. A-2). The ante mortem injuries, are being reproduced below:- 6 1. Incised wound 4cm X1.5cm X cavity deep, right side of abdomen, 10cm above from the umbilicus near subcostal margins. Part of mescuity protruding out. About 1 ltr blood present in cavity. 2. Incised wound 3cm X 1cm muscle deep, right side of chest, 6cm above right nipple. 3. Incised wound 2cm X 0.5cm X muscle deep left side of chest, 11cm below left nipple on upper side. 4. Abrasion 0.5cm X0.5cm, middle of chest near left nipple. 5. Incised wound 2cm X 1cm X muscle deep on left upper arm. 6. Incised wound 2cm X 1cm X muscle deep on left upper arm, 2cm away from injury No. 5. 7. Incised wound 2cm X 1cm X muscle deep, left side of shoulder blade, posterior side. 8. Incised wound 1cm X 0.5cm X muscle deep, on left upper arm, 2cm below injury No. 7 . 9. Incised wound 2cm X 1cm X muscle deep on left upper arm, 2cm below injury No. 8. 10. Abrasion 0.5cm X 0.5cm, below injury No. 9. 11. Incised wound 2.5cm X 1cm X muscle deep on outer part of left thigh (upper 1/4th part). 12. Abrasion 2cm X 0.25cm , left side face cheek. 7 13. Incised wound 1.5cm X 1cm X muscle deep left side of back near shoulder blade. 14. Stab wound 2cm X 1cm X through and through over inner side of upper arm. All muscles cut. The Medical Officer opined that deceased had died on account of shock and haemorrhage due to ante mortem injuries. The statement of P.W. 4 Dr. Kripal Singh, read with the autopsy report (Ext. A-2) in which 14 ante mortem injuries are mentioned (including 11 incised wound), clearly establishes on record that Arjun Prasad has died homicidal death on 27.01.1995. Now, this Court has to see whether accused/appellant Jhagaru committed murder of Arjun Prasad or not. 6. P.W. 1 Nakul, resident of Village Khilariya, has stated on oath before the trial court that Arjun Prasad was his elder brother. He further stated that accused/appellant Jhagaru, is also resident of his village. There was enmity between Arjun Prasad and accused/appellant Jhagaru due to election rivalry of Village Pradhan, and the accused/appellant had threatened the deceased to kill him. On 27.01.1995, at about 6:30 -7:00 p.m., when Arjun Prasad was coming from wheat floor mill, the witness was sitting at nearby culvert with witnesses Ram Lochan (P.W. 2) and Ramagya (P.W. 3). The three witnesses heard shouts and shrieks of Arjun Prasad and they rushed towards the place of occurrence. They saw the 8 accused/appellant Jhagaru, armed with a sharp edged weapon, assaulting the deceased near PAAKAR tree. His other two associates Vishwanath and Rajesh Kumar, armed with lathies had caught hold of Arjun Prasad. P.W. 1 Nakul further states that in his presence accused/appellant Jhagaru gave a blow with a sharp edged weapon in the abdomen of Arjun Prasad (deceased). The witness further states that Arjun Prasad after receiving injuries fell down, and accused ran away. P.W. 1 Nakul further told that there were lanterns and patromaxes lighting in the shops, near the place of incident. The witness further narrated that he along with other witnesses immediately took Arjun Prasad in a bus to a hospital at Khatima, where he was declared brought dead. P.W. 1 Nakul had further told that on the same day, he lodged First Information Report (Ext. A-1) with the police station. 7. The above statement of P.W. 1 gets corroboration from another eye-witness P.W. 2 Ram Lochan, who is also resident of the same village. This witness has also narrated the prosecution story in the same manner, as it has been stated by P.W. 1 Nakul. P.W. 3 Ramagya Prasad, the third eye-witness, has also corroborated the prosecution story, narrated by P.W. 1 Nakul and P.W. 2 Ram Lochan. Though this witness belongs to Village Bakulya but in the cross examination, it has come on the record that his house was hardly ½ Km. away from the place of incident and he used to chat with the 9 witnesses Nakul and Ram Lochan on a nearby culvert, where they were sitting on the day of the incident. The testimony of these three eye-witnesses gets corroboration from the ante mortem injuries, disclosed in the autopsy report (Ext. A-2), recorded by P.W. 4 Dr. Kripal Singh. Apart from this, the report (Ext. A-18) of the Forensic Laboratory, Agra, where the blood stained soil, simple soil and the clothes of the deceased were sent in a sealed cover for chemical analysis, shows that the blood stained soil taken from the spot and the clothes of the deceased, contained human blood. As such, it also corroborates the prosecution story. Reading the entire oral testimony, adduced by the witnesses with the Post Mortem Report and Forensic Laboratory report, we are convinced that the prosecution has successfully proved the charge against the accused/appellant Jhagaru that he committed murder of Arjun Prasad on 27.01.1995. 8. Shri M.S. Pal, Sr. Advocate on behalf of the accused/appellant drew our attention to First Information Report (Ext. A-1) and submitted that no source of light has been mentioned. It is contended on behalf of the appellant that the lanterns and petromaxes have been introduced by the prosecution witnesses only to fill up the lacuna. We have carefully gone through the evidence on record. It is pertinent to mention here that First Information Report is not an encyclopaedia. All the details are not necessarily 10 required to be mentioned in the First Information Report. Site plan (Ext. A-14) clearly shows that at the place of incident, there were many shops of Panwala, Tailor, Cyclewala and others, as such there is nothing unnatural in the testimony of the witnesses that lanterns and petromaxes were lighting. Even otherwise since witnesses P.W. 1 Nakul, P.W. 2 Ram Lochan and the accused/appellant were known to each other, as they belonged to the same village, there could be no difficulty in identifying the accused at the time of incident even in a dim light. In Jit Singh Vs. State of Punjab 1976 Supreme Court Cases (Cri) 341, the Apex Court has observed as under:- “From such short distances the witnesses could unmistakably identify the assailant who was fully known to them and was their covillager, even in moonlight.” 9. Perusal of the check report (Ext. A-3) of the First Information Report shows that the distance between the police station and the place of incident was 9 Kms. And the report has been lodged by the complainant within 2 ½ hours of the incident. It has also come on the record that P.W. 1 Nakul, P.W. 2 Ram Lochan and P.W. 3 Ramagya, in a bus took injured Arjun Prasad to Khatima hospital, where he was declared brought dead and then First Information Report was lodged at the police station Khatima. Considering the facts and circumstances of the case, the First Information Report appears to be a prompt one. Learned counsel for the 11 appellant argued that the First Information Report is ante time. It is further contended that the First Information Report was not sent promptly to the Magistrate, as required under Section 157 of Cr.P.C. and as such, the same appears to be ante time. We do not find substance in the argument for the reason that the inquest report (Ext. A-6), prepared by the police and the entry made in the general diary does not suggest that the First Information Report is ante time. Post mortem examination itself was conducted on the next day i.e. on 28.01.1995 by 3:30 p.m. as is apparent from the autopsy report (Ext. A-2), as such all these documents clearly shows that the First Information Report is not ante time. In State of Karnataka Vs. Moin Patel and others 1996 Supreme Court Cases (Cri) 632, the Apex Court, referring to the case of Pala Singh Vs. State of Punjab (1972) 2 S.C.C. Pg. 640, has observed as under:- “The relevant provision contained in Section 157 Cr.P.C. regarding forthwith dispatch of the report (FIR) is really designed to keep the Magistrate informed of the investigation of a cognizable offence so as to be able to control the investigation and if necessary to give proper direction under Section 159 Cr.P.C. and therefore if in a given case it is found that FIR was recorded without delay and the investigation started on that FIR then however improper or objectionable the delayed receipt of the report by the Magistrate concerned, it cannot by itself justify the conclusion that the investigation was tainted and the prosecution unsupportable.” 12 10. It is also argued on behalf of the appellant that there was no motive for commission of crime by the accused/appellant, who was a winning candidate in Village Pradhan election, as against his defeated rival Arjun Prasad. It is further contended that it is unnatural on the part of the accused/appellant to commit murder of the defeated candidate. In reply to this, learned A.G.A. argued that the deceased could have proved to be a thorn in any future election and as such, if the two had rivalry, it cannot be said unnatural on the part of the accused/appellant to commit murder of the defeated candidate, who had dared to fight against him. We have re-examined the evidence on record, and found that the deceased had contested the election against the accused/appellant on more than one occasion and as such, there was enmity between the two sides. Even otherwise, where there is eye witness account given by the eye witnesses, the motive loses its importance, as the same relates to the state of mind of a person, and no direct evidence can be given of such fact. In Satpal and others Vs. State of Punjab 1996 Supreme Court Cases (Cri) 11, the Apex Court has observed as under:- “It was sought to be argued on behalf of the appellants that the learned courts below failed to notice that the prosecution signally failed to prove the motive ascribed for the alleged murder, thereby making its case suspect. Since both the learned courts below found the evidence of the eyewitnesses 13 regarding the actual murder acceptable, the motive and for that matter proof thereof, paled into insignificance.” 11. 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. The judgment and order dated 11.09.1996, passed by learned IInd Additional Sessions Judge, Nainital, in Sessions Trial No. 229 of 1995, regarding conviction of the accused/appellant Jhagaru under Section 302 I.P.C. and sentencing him to imprisonment for life, is affirmed. He is on bail. His bail is cancelled. Registry is directed to send back the record to the lower court to make the accused/appellant Jhagaru serve out the sentence, awarded to him by the trial court. (B.S. Verma, J.) (Prafulla C. Pant, J.) Dt:29.06.2009 Sweta 14 15 16 17 18 19