IN THE HIGH COURT OF UTTARANCHAL, NAINITAL. No. 10- COURT’S ORDER WHETHER THE CASE IS OR IS NOT APPROVED FOR REPORTING. [ Chapter VIII, Rule 32(2) (b)] Government Appeal No. 1006/2001 (Old No. 1028/1981) State ... Appellant. Vs. Puran Singh .. Respondent. Decided on 25-10-2005 A.F.R. ( Approved for Reporting) Not Approved for Reporting ( Irshad Hussain, J.) ( B.S.Verma, J.) Dated: 25-10-2005. In the High Court of Uttaranchal, at Nainital. Government Appeal No. 1006/2001 (Old No. 1028/1981) State ….. Appellant. Vs. Puran Singh S/o Bhagchand R/o Village Akhori, Patwari Circle Barab, Tehsil Ukhimath, District Chamoli .. Respondent. Sri A. Rab, learned Addl. G.A. for the Appellant-State. Sri Rajendra Kotiyal, learned counsel for the respondent-accused. Coram: Hon’ble Irshad Hussain, J. Hon’ble B.S. Verma, J. Dated: 25-10-2005 ( Per: Hon’ble Irshad Hussain, J.) This criminal appeal by leave under Section 378(3) of the Code of Criminal Procedure has been preferred by the State Government against the acquittal of respondent- accused Puran Singh on the charge under Section 302 I.P.C., per judgment dated 6.2.1981, passed by the then Sessions Judge, Chamoli in sessions trial No. 15/1979. 2- The background facts, as unfolded during the trial, are as follows:- One Pushu had two sons, Bhawan Singh and Baghchand. Bhawan Singh died leaving behind his widow Smt. Rukmani. Baghchand also died leaving behind four sons, viz. Shivraj Singh, accused Puran Singh, Rajpal Singh deceased and Indra Singh. These four brothers reside in the jungle at a distance of about two kilometers from village Akhori, Patwari Circle Barab, Tehsil Ukhimath, District Chamoli. There was dispute between these four brothers relating to the property held by Smt. Rukmani Devi and out of these four brothers accused Puran Singh used to espouse the cause of the said widow. 3- In the month of August, 1979 Smt. Ramdei (P.W.5), the daughter of Shivraj Singh (P.W.4) had come to her parents house in village Akhori and was staying there. On 3-8-1979 at about 4 P.M. she was grinding paddy with her deaf and dumb mother Smt. Swanri Devi near the house. At that time accused Puran Singh came towards their cattle shed and started beating she-buffalo of Shivraj Singh. Smt. Ramdei and her mother raised an objection. Accused got displeased and caught the wife of Shivraj Singh by her hair in order to beat her. Shivraj Singh happened to reach there and cautioned the accused who then went inside his room and brought his licensed gun, exhibit-1, and fired a shot towards Shivraj Singh, who luckily escaped unhurt. On hearing the noise Indra Singh (P.W.2) and Rajpal Singh deceased came out of their rooms to inquire about the incident. The accused then started showing his anger towards these two also. Both of them thus decided to retreat from there but were chased by the accused carrying the gun. Indra Singh (P.W.2) asked Rajpal Singh deceased to run fast and when deceased turned his face backwards to see as to how far was the accused he was fired at by the accused and the gun shot his him on the face and head. Rajpal Singh fell then and there on the ground. In the meantime Smt. Bardei (P.W.3) wife of Indra Singh and Km. Bimala (P.W.6) the minor daughter of Rajpal Singh deceased and other children of the family reached near that place while returning after washing the utensils and clothes in a rivulet. They were thus able to see this incident. Indra Singh was then put to threat by the accused so he ran inside his house and got himself saved. It was then found that Rajpal Singh had become unconscious and remained so till he breathed his last. 4- It is also the prosecution case that thereafter Smt. Ramdei (P.W.5) went towards the Abadi of village Akhori and informed Pratap Singh Pradhan ( P.W.1) about the incident. Pratap Singh then came to the spot of the occurrence with co-villagers and prepared the written report, Ext. Ka.1. It was sent through Balbir Singh to circle patwari Mitra Nand (P.W.8) who received the written report the same day at 6.30 P.M. and for want of availability of the register of check F.I.R. patwari made an entry vide report No.4 of the same date, that is, 3.8.1979 of 6.30 P.M. in the general diary, Ext. Ka.5 and sent information to patwari Bhatwari Sunar who was posted earlier at his place and had taken the register of the check F.I.R. in connection with court evidence at Chamoli. He, thereafter, left for the village of the occurrence with necessary papers along with his peon and Balbir Singh. They managed to reach village Sena Gadsari by 9 P.M. and stayed there in the night. In the morning they started for the village of the occurrence and reached there at 7.30 P.M. on 4.8.79. Patwari found victim Rajpal Singh lying on a cot in ‘Mandua’ plot near the houses of the witnesses; the accused and the victim. Victim Rajpal Singh was not responding to any call and he, probably, breathed his last at about 8 A.M. that day. Patwari then prepared a memo, Ext. Ka.6 to that effect in the presence of the village pradhan and other witnesses. At that time peon Amar Singh came there with the register of the check F.I.R. and then the patwari drawn the check report, Ext. Ka.7 on the basis of written report, thereby registering the case against the accused for committing the murder of the deceased. The relevant G.D. entry at report No.5 of 4.8.1979, Ext. Ka.8 was also made at that time. The patwari, thereafter, went to the house of the accused and after arresting him prepared memo, Ext. Ka.9 to that effect. He attached single barrel licensed gun .12 bore and two empty cartridges given to him by the accused, vide memo, Ext. Ka.10. These items were sealed in a packet in the presence of the witnesses. 5- The circle patwari then held inquest on the dead body of the deceased and prepared the inquest report, Ext. Ka.2 and other relevant documents including the diagram of the dead body, Ext. Ka.11 and challan report, Ext. Ka.12. The packed and sealed dead body was dispatched for post mortem, which was performed next day on 5.8.1979 at 5 P.M. by Dr. D.C. Awasthi (P.W.7) of District Hospital, Gopeshwar and post mortem examination report, Ext. Ka.4 was prepared. Patwari circle also prepared the site plan of the place of the occurrence, Ext. Ka.13, seized sample of blood-stained and plain earth vide memos, Ext. Ka.14 and Ka.15 respectively and also attached bloodstained shirt, pant, underwear of the deceased vide memo, Ext. Ka.16. Other formalities of the investigation were also completed that day. Next day on 6.8.1979 patwari again visited the village of the occurrence and recorded the statements of the witnesses Km. Bimala and Smt. Ramdei and in their presence prepared sketch maps, Ext. Ka. 17 and Ext. Ka.18 of the place of the incident. The statements of other witnesses were recorded and on completion of the investigation, charge sheet, Ext. Ka.19 was placed by him against the accused on 29-9-1979. 6- On cognizance being take the accused was sent up to stand trial in the Sessions Court, Chamoli. Charge was framed against the accused under Section 302 I.P.C. by the then Sessions Judge, Chamoli. Accused did not admit the accusations of the prosecution and pleaded not guilty. He admitted that there was dispute relating to the property of Smt. Rukmani who had died some time after the instant incident. She had gifted her property to him by registered gift deed. According to the accused he had been falsely implicated due to enmity resulting from the dispute of property held by Smt. Rukmani. He also gave out that on 3.8.79 Rajpal Singh deceased had gone for hunting with his brother Indra Singh and co-villager Bachan Singh and that Rajpal Singh was injured by the shot discharged from the licensed gun of Bachan Singh by mistake. 7- At the trial, the prosecution, in order to bring home guilt to the accused examined eight witnesses including the four eye witnesses referred above. P.W.1, Pratap Singh Pradhan proved the written report referred earlier and connected by his evidence the various steps taken by the Investigating Officer. He denied to a suggestion that written report, Ext. Ka.1 was got scribed by him after the visit of the patwari in the village. According to him it had rained in the night succeeding the day of the occurrence. P.W.2, Indra Singh, P.W.3, Smt. Bardei, P.W.5, Smt. Ramdei and P.W.6, Km. Bimala the four eye witnesses of the occurrence supported the prosecution version about the actual assault made by the accused by wielding a gun and shot of which had hit the deceased Rajpal Singh on the head and face. P.W.4, Shivraj Singh proved the prosecution case in regard to the even prior to the actual assault on the deceased and how the accused initially reached near the cattle-shed and wanted to assault his wife and daughter Smt. Ramdei and on his intervention he was fired at by gun wielding accused. He escaped unhurt and ran inside the room where-after the accused chased his other two brothers Indra Singh and Rajpal Singh deceased and fired shot hitting Rajpal Singh who later on succumbed to the gun injuries. P.W.8, patwari Mitra Nand, the Investigating Officer of the case gave evidence to prove the steps taken during the investigation and also the reason for preparing the check F.I.R. in the village of the occurrence. P.W.7, Dr. D.C. Awasthi, held autopsy on the dead body of the deceased as stated above and ante mortem injuries detected on the body of the deceased were as follows:- (1) Fire arm injury 1 ½ cm in diameter circular in shape with inverted margins on right side of scalp parietal region, 5cm above the top of right ear and 10cm from the outer corner of the right eye with tattooing (impregnated black carbon particles) over and area of 12 cm x 10cm over the right side of face, forehead and around and wound. It was wound of entry. (2) Fire arm lacerated injury oval shaped 2 ½ cm x 1 cm with irregular everted margins 2cm behind injury no.1. Clotted blood was present around it. It was wound of exit. (3) Fire arm lacerated wound 1 cm x ½ cm irregular in shape, 2cm below and behind injury no.2. It was wound of exit. (4) Fire arm lacerated wound 1cm x ¾ cm irregular in shape, 2cm behind injury No.2. It was wound of exit. On internal examination hoematoma was found present on the right side of scalp and there was a circular hold 1 cm in diameter in the right parietal bone of the skull. Fracture of left parietal bone was also detected. The right cerebral brain sphere was lacerated with clotted blood and chip of bone was present in it. A pallet. Ext. 5 embedded in the right cerebral hemisphere was taken out. There was four ounce of partly digested food material in the stomach. Small intestine was empty and whereas large intestine contained faecal matter. In the opined of the medical officer death was caused due to coma, as a result of head injury sustained by discharge of fire arm shot about two days ago. He also opined that the ante mortem injuries were sufficient in the ordinary course of nature to cause death of the deceased. 8- This all was the evidence of the prosecution. In defence copies of the non-cognizable reports dated 12-6-1977, 8-2-1978, 17-5-1979, Ext. Kha.1, Kha.2, and Kha-3 respectively lodged by the accused against his brothers were filed. Copy of application, Ext. Kha.4 dated 4.7.1979 moved by the accused against his brothers in the court of S.D.M., Ukhimath was also placed on record, besides the certified copy of the gift deed, executed by Smt. Rukmani in favour of the accused, Ext. Ka. 6 and answer to queries from the court of Pargana Magistrate, Chamoli, Ext. Khpa.7 and Kha.8 pertaining to the applications given by the accused against his brothers. 9- The learned Sessions Judge briefly referred to the evidence of the witnesses and observed that there are no material contradictions in the statements of P.W.2, Indra Singh, P.W.3, Smt. Bardei, P.W.4, Shivraj Singh, P.W.5, Smt. Ramdei and P.W.6, Km. Bimala, the witnesses of the fact. However the learned Sessions Judge on the appreciation of the evidence of the Investigating Officer and informant and the check F.I.R. and the relevant G.D. entry of the registration of the case came to the conclusion that “it is absolutely uncertain that the F.I.R., Ext. Ka.1 had been lodged at the earliest opportunity on 3-8-1979 at 6.30 P.M. and if it was so then there was every occasion for consultation and afterthought.” The statement of the accused under Section 313 of the Code of Criminal Procedure as referred in the earlier part of the judgment was also reproduced by the learned Sessions Judge and by laying emphasis on the statement of the accused that Rajpal Singh deceased was injured by a shot fired from the gun carried by co-villager at the time of the hunting observed that “it might or might not be so but in view of the above discussion I do not think that the prosecution has succeeded in establishing the guilt under Section 302 I.P.C. as against the accused to the hilt and beyond all reasonable doubts. At least he is fully entitled for benefit of doubt.” Consequently the accused was given benefit of doubt and acquitted of the charge under Section 302 I.P.C. per judgment under appeal. 10- In support of the appeal and with a view to attach vulnerability to the judgment of the learned Sessions Judge several points were urged by the learned A.G.A. It was pointed out that there was overwhelming and unimpeachable evidence of as many as four eye witnesses to prove the manner of fatal assault on the deceased by the gun wielding accused which under no circumstances could have been set at naught merely on the basis of minor infirmities, if any, in the investigation of the case as were highlighted by the learned Sessions Judge. He also submitted that the view taken by the learned Sessions Judge was not the possible reasonable view on the evidence on record and that the judgment was passed by the learned Sessions Judge in ignorance of the cogent, clear and reliable evidence of the eye witnesses in which the learned Sessions Judge also could not find any material contradictions to raise the least doubt in the veracity of the prosecution case. learned A.G.A. thus urged that it is a fit case in which interference by the appellate court in judgment under appeal is legally called for an envisaged by the provisions of sections 378 and 386 of the Code of Criminal Procedure, 1973. 11- On the contrary learned counsel for the respondent-accused submitted that the background facts and the evidence on the record have to be tested with a pragmatic approach. According to him the inimical atmosphere which prevailed between the accused and his other three brothers including the deceased on account of previous complaints and dispute relating to the property of Smt. Rukmani the suggestion of the defence that the deceased was hit by fire arm shot by mistake in a hunting session in the jungle at the hands of co- villager Bachan Singh is meaningful and in the manner in which the F.I.R. was recorded and adversely commented upon by the learned Sessions Judge do not rule out the possibility of false implication of the accused in the crime. Learned counsel, therefore, submitted that the judgment delivered by the learned Sessions Judge was neither perverse nor unreasonable nor based on no evidence and, therefore, no interference by the appellant court called for to substitute its own finding about the involvement of the accused in the crime on re-appreciation of the evidence. Learned counsel then submitted that in any event if it is found that the learned Sessions Judge filed to make proper and fair appraisal of the evidence of the eye witnesses it will be appropriate to remit the matter to the learned Sessions Judge/trial court for a fresh consideration of the evidence on record and then to deliver the judgment in the sessions trial. 12- In the above backdrop it has to be seen whether the findings of the learned Sessions Judge are wholly unreasonable or perverse and not based on the evidence on record or suffer from serious illegality including the misleading of evidence on record and whether on the reappreciation of the evidence on record the view taken by the learned Sessions Judge was not only possible reasonable view and as a consequence thereof the impugned judgment acquitting the respondent-accused of the charge under Section 302 I.P.C. is liable to be set aside. 13- As we have noticed earlier the prosecution examined four eye witnesses, viz. P.W.2, Indra is; P.W.3, Smt. Bardei; P.W.5, Smt. Ramdei and P.W.6, Km. Bimala. Another witness P.W.4, Shivraj Singh was also examined to prove the events prior to the actual assault by gun by the accused on the deceased Rajpal Singh. As the houses of the parties are situate in the jungle at a distance of about two kilometers from the Abadi of village Akhori, these relative witnesses were the most natural and probable witnesses of the occurrence and no other villager was expected to be there to witness the incident. This aspect of the matter was also taken in to consideration by the learned Sessions Judge in similar perspective and the presence of any outsider at the scene of the incident was thus not insisted upon towards corroboration of the prosecution version and the evidence of relative eye witnesses. 14- The events preceding the actual assault and the details of the incident itself have been referred in the earlier part of the judgment while describing the facts of the case and unfolded by the evidence during the trial. Consequently the evidence of all these four eye witnesses and also of Shivraj Singh ( P.W.4) was briefly reproduced above. The evidence adduced was to prove that at about 4 P.M. on 3-8-1979 accused Puran Singh picked up his gun from his room when his brother Shivraj Singh (P.W.4) took exception to the indecent behaviour of the accused in picking up the wife of Shivraj Singh by her hair in order to assault her when she and her daughter Smt. Ramdei (P.W.5) were near their cattle-shed and were busy indigenously grinding paddy. Accused after bringing his gun fired a shot on Shivraj Singh who escaped unhurt and ran inside his room to save himself from being harmed by the accused. Shivraj Singh gave out that when he closed himself inside the room his brothers Rajpal Singh deceased and Indra Singh (P.W.2) came there at the door and inquired as to how the gun shot was fired. Out of fear nothing was then heard by Shivraj Singh and he kept himself silently locked inside the room. He stated that after some time he heard noise of gun shot from the side of water rivulet and soon thereafter his brother Indra Singh gave a call that everyone should remain inside their rooms as accused Puran Singh had fired gun shot at Rajpal Singh deceased. Shivraj Singh came out only after the arrival of the villagers at the scene of the incident and reached at the place where his brother Rajpal Singh deceased was lying injured with fire arm injuries. 15- Since Shivraj Singh gave evidence about the events prior to the actual assault the latter events of the incident were witnessed by the above named four eye witnesses who remained outside and saw as to how Rajpal Singh deceased was chased by accused Puran Singh and was fired at by the gun wielded by the accused and which hit the deceased on the face and head as a result of which Rajpal Singh deceased fell then and there on the ground. Eye witness Indra Singh (P.W.2) gave out that he started running along with his brother Rajpal Singh deceased as soon as the accused started showing his anger towards them and further that when Rajpal Singh deceased turned his face backward, accused fired shot at Rajpal Singh deceased, which caused injuries to Rajpal Singh on the face and head and who fell then and there on the ground. The evidence of Smt. Bardei (P.W.3) wife of Indra Singh and Km. Bimala (P.W.6) the minor daughter of Rajpal Singh deceased prove that they saw the actual incident while they were returning towards the houses after washing the utensils and clothes in the rivulet. Smt. Ramdei (P.W.5) was also already there outside the house with her deaf and dumb mother when the accused first of all wielded the gun against her father and thereafter by chasing Rajpal Singh deceased and Indra Singh again wielded gun against Rajpal Singh deceased who was hit by the gun shot on the face and head and fell then and there in the field some distance away from the houses of the family members and towards the water rivulet from which side Smt. Bardei and Km. Bimala were then coming towards their houses. The evidence of this witness is also thus definite in regard to the events not only prior to the actual assault by the accused on Rajpal Singh deceased by the gun but also in regard to the events prior to the actual assault. She has also thus not only corroborate the evidence of her father Shivraj Singh (P.W.4) but also proved the manner in which the accused wielded gun against Rajpal Singh deceased. 16- All these five witnesses were cross-examined at length but nothing of significance could be brought on record as may in any way assail their credibility and raise any doubt in the prosecution version in regard to the actual assault by the accused on Rajpal Singh deceased by wielding gun and in the process causing injuries to the victim on the face and head which resulted in his death as proved by the medical evidence in the case as referred above. It need to be repeated that the learned Sessions Judge discussed the evidence of all these five witnesses including the four eye witnesses in sufficient detail in his judgment and did not find anything of substance or any infirmity in their evidence as may entail rejection of their evidence or any of them. The learned Sessions Judge categorically endorsed in the judgment that there are no material contradictions in the statements of Indra Singh, P.W.2; Smt. Bardei, P.W.3; Shivraj Singh, P.W.4; Smt. Ramdei, P.W.5 and Km. Bimala, P.W.6 and there can be no doubt that the said inference was rightly drawn by the learned Sessions Judge. In other words the definite and cogent evidence of these eye witnesses of the prosecution prove beyond doubt that the occurrence took place in the manner as alleged and that accused Puran Singh fired shot from his gun hitting his brother Rajpal Singh deceased on the face and head at about 4 P.M. on 3-8-1979 near the houses of the accused, the deceased and the witnesses situate at a distance of about two kilometers from the Abadi of village Akhori. The evidence is also to the effect that Rajpal Singh deceased had become unconscious on receiving the gun shot injuries and was thereafter kept at that place where he fell down under a makeshift thatch to protect him from the inclement weather and the rain. Rajpal Singh deceased was not able to speak and as stated by these witnesses and also by village Pradhan Pratap Singh (P.W.1) and circle patwari Mitra Nand Bhatt (P.W.8) Rajpal Singh deceased breathed his last in the early hours of the morning of 4-8-1979 when the circle patwari had already reached there to investigate the crime. The medical evidence referred above also prove beyond doubt that Rajpal