IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Court’s order whether the case is or not approved for reporting (Chapter VIII, Rule 32(2) (b) Description of Case Criminal Jail Appeal No.2101 of 2001 (Old No. 2175/1984) AND Criminal Appeal No.2100 of 2001 AND Criminal Appeal No.2102 of 2001 Date of decision :-23.07.2007 A.F.R. (Approved for Reporting) Not approved for reporting Date :-23.07.2007 Initials of Judge Note :- Bench Reader will attach this at the top of the first page of the judgment when it is put up before the Judge for signature. HIGH COURT OF UTTARAKHAND, AT NAINITAL Criminal Jail Appeal No.2101 of 2001 (Old No. 2175/1984) Dalip Singh S/o Sri Mara Singh R/o Shirower Nagar P.O. Akela Khada Tehsil Gadarpur District Nainital At present District U.S. Nagar ……..Appellant Versus State …..Respondent AND Criminal Appeal No.2100 of 2001 Dharama @ Dharam Singh (in jail) ….Appellant Versus State …. Respondent AND Criminal Appeal No.2102 of 2001 Palla @ Pahelwan Singh ….Appellant Versus State ….Respondent Delivery of Judgment : 23rd July, 2007 Mr. Abdul Wahid learned Amicus Curiae for appellants. Mr. G. S. Sandhu learned Govt. Advocate for respondent. Coram : Hon’ble Rajeev Gupta, C.J. Hon’ble J. C. S. Rawat, J. Per Hon’ble J.C.S. Rawat, J. 1. Since al these criminal appeals have arisen out of the common impugned judgment & order dated 03.12.1983 passed by Sri V. S. Bajpai, the then Addl. Sessions Judge, Nainital in S.T. No.88 of 1982, hence all the appeals have heard together and are being disposed of by this common judgment. By the impugned judgment and order, the appellants-Palla @ Pahalwan Singh, Dharma @ Dharam Singh and Dalip Singh were convicted and each of the appellants were sentenced to undergo R.I. for a period of one year under section 147 IPC, to undergo imprisonment for life under section 302/149 IPC and to undergo R.I. for a period of 4 years under section 307/149 IPC. All the sentences were to run concurrently. 2. The facts, in nutshell, are that S.O. Nagendra Singh (deceased) was posted as Station Officer, P.S. Jaspur in the year 1982. On 23.01.1982 he alongwith S.I. Dharam Singh, S.I.-B.S. Garbiyal, Constables Surajpal Singh, Dharambir Singh and Amarpal Singh, all fully armed, went in search of the accused of crime no. 11/1982 under section 364 IPC and for recovering the kidnapped person Kartar Singh. They went to Bhogpur Dam and on 24.01.1982 they summoned additional police force from the police station. The police force arrived and joined the police party of S.O. Nagendra Singh (deceased). On that date the entire police force made a thorough search of the accused persons, but they could not get success in arresting the accused of crime No. 11/1982. On 25.01.1982 S.O. Nagendra Singh divided the entire force into two parts and himself remained the leader of first party which consisted of S.I. Dharam Singh PW1, Constable Vijaipal Singh PW8, Constable Balvender Singh PW3, Constable Tejpal Singh and Constable Bhawani Ram. The second party was placed under S.I.-B. S. Garbiyal and the remaining 11 constables were placed in that party. The first party went towards Tirath Mandir. The second party went towards the forest headed by S.O.- Nagendra Singh and reached at Atta Chakki of Ghanshyam Das. It was informed by Mukhtar Singh PW5 that five persons armed with deadly weapons were present inside the hut of Uttam Singh and they had detained Inder Singh – father of Mukhtar Singh, Harnam Singh and Uttam Singh – both uncle of Mukhtar Singh in that hut. It was further informed by Mukhtar Singh that the accused persons were enquiring the whereabouts of Kripal Singh and they were threatening to kill all these four persons together. Mukhtar Singh disclosed the name of these five persons as Dharma @ Dharam Singh, Palla @ Pahelwan Singh, Dalip Singh, Mana Singh and Gurdip Singh, out of which, the first three are appellants before us. It was also disclosed by Mukhtar Singh that these accused persons were saying that “Tumhe police ki mukhbiri karne wa gawahi dene ka maja chakhayange.” On this information, S.O.-Nagendra Singh and the members of his party reached at the house of Uttam Singh at about 4:30pm accompanied by the informant Mukhtar Singh. When they reached there they heard some noise coming from inside the house of Uttam Singh. The accused persons were saying that “Kripal Singh batawo kaha hain. Tum charo ko ek sath marenge aur police ki mukhbiri karne ka maja chakhayange”. S.I.-Nagendra Singh at once challaneged the accused persons to surrender since they had been surrounded by the police. He also asked them to release Uttam Singh and others. The accused persons released Uttam Singh and others but all of a sudden started firing on the police party due to which Constable Vijaipal Singh PW8 sustained gun-shot injuries on his person. In the self- defence, the police party also opened fire and S.O.- Nagendra Singh again challenged the accused persons to surrender. At that very moment all five persons (appellants and their associates) tried to come out from the house of Uttam Singh and they continued firing from their fire-arms. S.O.-Nagendra Singh rushed ahead with his revolver and succeeded in catching hold of one of the associates of the accused, namely Gurdip Singh. At the same time, the other accused persons fired on S.O.-Nagendra Singh due to which he sustained grievous injuries and died at the spot. The firing between the police party and the accused persons continued for about 20-25 minutes with the result that two associates of the appellants Gurdip Singh and Mana Singh were killed at the spot and the remaining three accused (appellants), who have been convicted by the trial court, succeeded in running away from the place of occurrence. S.I.-Dharam Singh then sent information about this incident to S.I.-B. S. Garbiyal, leader of the second party and this party also arrived at the place of occurrence. Injured Constable Vijaipal Singh PW8 was then carried on a tractor to the hospital. S.I.-Dharam Singh PW1 went to the police station where he lodged a verbal FIR (Ex.ka.1) at 7:45 p.m. on 25.01.1982. On the basis of report, the Chick FIR Ex.ka.1 was prepared and necessary entries were made in the general diary. The body of deceased S.O.-Nagendra Singh and two associates of the accused, namely, Gurdip Singh and Mana Singh was left at the place of occurrence under the watch of the police constables. H.C. Karnatak, S.D.M., Kashipur (PW10) was informed of the incident and he accompanied the investigating officer to the place of occurrence. After appointing panches he prepared the inquest report Ex.ka.5 and other connected papers. After completing the investigation, the Investigating Officer submitted the chargesheet before the court against the appellants. 3. After submission of chargesheet the appellants- accused were committed to the court of Sessions for trial and the trail court framed charges against the accused persons. They denied the charges levelled against them and claimed their trial. 4. The prosecution in support of its case examined as many as thirteen witnesses. S.I. Dharam Singh PW1 was also present at the place of occurrence during the course of firing. Dr. J.C. Arora PW2 was the Medical Officer who conducted the postmortem of deceased S.O. Nagendra Singh. Constable Balvender Singh PW3 was also a member of the police force and he is the eyewitness of the incident. Harnam Singh PW4 was also kidnapped by the accused persons. He was the brother of Inder Singh, Uttam Singh and Kripal Singh. Mukhtar Singh PW5 was the informant, who was the son of Inder Singh. Dr. D. C. Dhyani PW6 examined the injuries of Constable Vijaipal Singh PW8. Constable Harpal Singh PW7 proved the chick FIR. Constable Vijaipal Singh PW8 is an injured eye-witness of the incident. Sher Singh PW9 is the panch witness of inquest report. H.C. Karnatak PW10 was the then S.D.M, Kashipur. He inspected the place of occurrence immediately after the incident and prepared the inquest report. S.I.-A.K. Chaturvedi PW11 is the Investigating Officer of this case. S.I.-Ajaipal Singh PW12 has proved the factum of discovery of arms at the pointing out of appellants. Om Prakash Mani Tripathi PW13 is the Ballistic Expert. 5. The accused persons were examined u/s 313 Cr.P.C. and they have pleaded not guilty to offence. They have stated that they have been falsely implicated in this case. 6. The learned trial court on appreciation of the evidence held the appellants guilty and convicted and sentenced them as mentioned above. 7. We have heard learned counsel for the appellants and learned Addl. Government Advocate for the respondent-State. Perused the record carefully. 8. It needs to be mentioned here that it is not disputed that on 25.01.1982 an incident of firing took place between the police party and the accused persons (appellants & their associates). It is not disputed that two associates of the appellants i.e. Gurdip Singh and Mana Singh and one member of police party i.e S.O. Narendra Singh died in the incident. It is not disputed that deceased S.O.-Nagendra Singh died on account of fire-arm injuries sustained by him on the date of occurrence. Dr. J.C. Arora (PW2), Medical Officer conducted the postmortem of deceased-S.O.-Nagendra Singh on 26.01.1982 at 6p.m. and found following ante-mortem injuries on the person of the deceased:- (i) Lacerated wound 9cm x 6cm x bone deep on left cheek, 2cm below left ear. Tattooing present. (ii) Two fire arm injuries of entry 1.5cm x 1cm, 1.5cm apart from each other just above left clavicle middle part clavicle and fractured, chest cavity deep. (iii) Two fire arm injuries of entry 2cm x 1.5cm and 1cm x 1cm ½cm apart from each other 13cm below and outer side of left nipple at 5 o’clock position on chest. (iv) Lacerated wound 11cm x 7cm x muscle deep on left arm front middle part tattooing present. In the opinion of Medical Officer, the age of the deceased was about 35 years and the deceased died about a day before. It was further opined that the death of the deceased was caused due to shock and haemorrhage resulting from the ante-mortem injuries. Thus, it is amply established that deceased-Nagendra Singh died on account of fire-arm injuries sustained by him on the date of occurrence. 9. Dr. D. C. Dhyani (PW6), Medical Officer examined the injured Vijaipal Singh PW8 on 25.01.1982 at 8pm and found following injuries on his person:- (i) A chain circular punched out apertime area about 3cm x 1½ cm. Bone deep over right elbow joint over laternal epieodgile of humerus lower end. Fresh bleeding seen. Advised X-ray. Right elbow joint AP & left blackening of the surrounding skin. (ii) Lacerated wound 6cm x 3½cm. Skin deep over right forearm. Post side 8cm below from Ist injury. Blackening of the tissue surrounding the wound & burn smell of skin present. Fresh bleeding seen. (iii) Lacerated wound 1cm x 1cm skin deep over right elbow joint 3cm. Laterally & back from Ist injury. Fresh bleeding seen. Advised X-ray AP & left view. In the opinion of Medical Officer, injury no.1 was caused by fire arm but no bullet was seen in x-ray report. Injury no.2 was caused by firearm and injury no.3 was caused by blunt object. It is further established that the injured Vijaipal sustained the fire arm injuries on the time and date of occurrence. 10. The prosecution has adduced the evidence of eye- witnesses i.e. S.I. Dharam Singh PW1, Constable Balvender Singh PW3, Constable Vijaipal Singh PW8, Harnam Singh PW4 and Mukhtar Singh PW5. S.I. Dharam Singh PW1, Constables Balvender Singh PW3 and Constable Vijaipal Singh PW8 had categorically stated in their evidence that the police party received the information from Mukhtar Singh PW5 that five persons armed with deadly weapons were present inside the house of Uttam Singh and they had detained Inder Singh – father of Mukhtar Singh, Harnam Singh – uncle of Mukhtar Singh and Uttam Singh-uncle of Mukhtar Singh in the house of Uttam Singh. The accused persons were inquiring the whereabouts of Kripal Singh. They were threatening to kill them. Mukhtar Singh PW5 also disclosed the names of accused persons. On this information, S.O. Nagendra Singh (deceased) alongwith his police party and informant reached near the house of Uttam Singh and challenged the appellants and their associates to surrender them before the police since they had been surrounded by the police. The appellants and their associates after releasing detained persons started firing upon the police party, due to which S.O. Nagendra Singh sustained fire-arm injuries and died at the spot. Constable Vijaipal Singh PW8 also sustained fire-arm injuries during the incident. Thus, it is amply established that the incident took place on 25.01.1982, in which S.O. Nagendra Singh sustained gunshot injuries and died at the spot and Constable Vijaipal Singh also sustained injuries on his person. Thus, the prosecution evidence establishes the place and time of the incident. 11. Now, we have to consider whether the appellants- accused were responsible for causing death of the deceased and for causing injuries on the person of injured Vijaipal Sing PW8. The prosecution had adduced the evidence of S.I. Dharam Singh PW1, Constable Balvender Singh PW3, Harnam Singh PW4, Mukhtar Sigh PW5 and Constable Vijaipal Singh PW8. S.I. Dharam Singh PW1, Constable Balvender Singh PW3 and Cosntable Vijaipal Singh PW8 have stated in their evidence that on 24.01.1982 S.O. Nagendra Singh (deceased) summoned additional police force from the police station. It is also in the evidence that on 23.01.1982 S.O.-Nagendra Singh alongwith S.I. Dharam Singh, S.I. B. S. Garbiyal and some Constables went in search of the accused of crime no.11/1982 under section 364 IPC and for recovering the kidnapped person Kartar Singh. The additional police force was made available to S.O. Nagendra Singh in order to search the accused persons and the kidnapped person. On 25.01.1982 S.O. Nagendra Singh divided the entire force into two parts and himself remained the leader of first party which consisted of S.I. Dharam Singh, Constable Vijaipal Singh, Constable Balvender Singh Constable Tejpal Singh and Constable Bhawani Ram. The second party was placed under S.I.-B. S. Garbiyal and the remaining 11 constables were placed in that party. The police party went towards the forest headed by S.O.-Nagendra Singh and reached at Atta Chakki of Ghanshyam Das. It was informed by Mukhtar Singh that five persons who were armed with deadly weapons were present inside the ‘Jhala’ (house) of Uttam Singh and they had detained Inder Singh – father of Mukhtar Singh, Harnam Singh and Uttam Singh both uncle of Mukhtar Singh in that house and are enquiring about the whereabouts of Kripal Singh. They were threatening to kill all these four persons together. When the police party reached at the spot S.O. Nagendra Singh (deceased) challenged the accused persons and directed them to release the detained person. The appellants and their associates released Uttam Singh and others but they started firing on the police party resulting injuries on the person of Vijaipal Singh PW8. When Constable Vijaipal Singh PW8 sustained injuries on his person police party opened fire and S.O. Nagendra Singh (deceased) took out his revolver and also fired and tried to catch hold of the accused persons. The appellants and their associates (accused persons) tried to escape from that house under the cover of heavy firing. When S.O. Nagendra Singh (deceased) tried to catch hold of Gurdip Singh he was shot dead by the appellants and their associates. S.O. Nagendra Singh (deceased) sustained gun-shot injuries and died at the spot. The firing between the miscreants and the police party continued for about 20- 25 minutes with the result that two associates of the appellants Gurdip Singh and Mana Singh also died at the spot and the appellants-accused made their escape good from the place of occurrence. S.I. Dharam Singh PW1 then sent the information about the incident to S.I.-B.S. Garbiyal who was leading the second police party. After sometime, the second police party also reached at the spot. 12. Hanam Singh PW4 was also produced by the prosecution is support of its case. He had stated in his evidence that he is the brother of Inder Singh, Uttam Singh and Kripal Singh. The appellants and their associates forcibly entered into the house of his brother Inder Singh and they took him forcibly to his house where he was also caught hold by the accused. Thereafter, they took them in the Jhala (house) of Uttam Singh where all of them were detained. When the appellants and their associates entered into the house of Uttam Singh they started threatening to kill them and they were enquiring the whereabouts of their 4th brother Kripal Singh. They were threatening them to kill all four brothers together. The appellants and their associates were having arms in their hands. He, Inder Singh and Uttam Singh were requesting them to release them, but the appellants and their associates were not acceding to their request. Meanwhile, the police party headed by S.O. Nagendra Singh reached inside the Jhala of Uttam Singh and challenged the appellants and their associates. Uttam Singh and others were released by the accused, but all of a sudden the appellants and their associates started firing upon he police party. Thereafter, the police party also fired in their self-defence. S.O. Narendra Singh (deceased) caught hold of Gurdip Singh. On this, the accused appellant Palla @ Pahelwan Singh fired upon S.O. Nagendra Singh due to which he sustained gunshot injuries and died at the spot. 13. The prosecution has also adduced the evidence of Mukhtar Singh PW5, who has stated in his evidence that his father Inder Singh and his uncles Harnam Singh and Uttam Singh were forcibly detained in the Jhala of Uttam Singh by the appellants and their associates. He was going towards the Atta Chakki of Ghanshyam Das. When he reached near the Atta Chakki he informed S.O. Nagendra Singh that five persons armed with deadly weapons were present inside the Jhala (house) of Uttam Singh and they had detained his father Inder Singh and his uncles Uttam Singh and Harnam Singh. He also informed that the accused persons were enquiring the whereabouts of Kripal Singh and they were threatening to kill them. He also accompanied the police party to the Jhala of Uttam Singh and narrated the entire incident which has been stated by S.I. Dharam Singh PW1, Constable Balvender Singh PW3, Harnam Singh PW4 and Constable Vijaipal Singh PW8. 14. There is no doubt that Constable Vijaipal Singh PW8 is an injured eye-witness as he sustained injuries in the same incident. He has narrated the entire incident as mentioned above. Eye-witnesses, namely S.I. Dharam Singh PW1, Constable Balvender Singh PW3 and Mukhtar Singh PW5 have corroborated the evidence of Constable Vijaipal Singh PW8. All the eye- witnesses have fully supported the prosecution version. They were cross examined at length, but nothing could be elicited in their cross examination to discredit their testimony. All the eye-witnesses remained consistent in their cross examination with regard to the factum of incident. Moreover, the presence of the injured eye- witness Constable Vijaipal Singh PW8 cannot be doubted. He has sustained gun-shot injuries in the same incident and the prosecution has proved the same. The injured witness stands on a higher pedestal than ordinary eye witness. It is also well settled that the testimony of the injured eye-witness is sufficient to base the conviction and no further corroboration is required. His testimony is credible and cogent. The presence of the injured witness cannot be ruled out. The testimony of an injured witness has its own relevance and efficacy. The fact that the witness lends support to his testimony that the witness was present during he occurrence. {Vide Narendra Nath Khaware Vs. Parasnath Khaware and others 2003 SCC (Crl) 1144 and State of U.P. Vs. Kishan Chand and others 2004 SCC (Cri) 2013}. 15. Learned Amicus Curiae for the appellants contended that in the evidence of A.K. Chaturvedi (I.O.) PW11 it has come that the length and breadth of Jhala of Uttam Singh was about 10 x 6 paces and the height of the said Jhala was about 10-12 feet. Three appellants and their associates alongwith three abducted persons and two family members of Uttam Singh were inside the Jhala of Uttam Singh. There was only one door in the said Jhala. When the police party reached at the spot and they challenged the appellants and their associates and directed to release the abducted persons. It was contended that it was impossible that the persons sitting inside the Jhala would rush out immediately outside the house. Learned G.A. refuted the contention. The prosecution has led the evidence to the fact that S.O. Nagendra Singh (deceased) challenged the appellants and their associates to release the abducted persons immediately. In consequence of the said warning they released the abducted persons and opened fire. When the police tried to enter into the Jhala of Uttam Singh. S.O. Nagendra Singh was prevented and he grappled with one of the miscreants viz. Gurdip Singh. In the meantime, other miscreants fired upon S.O. Nagendra Singh (deceased) due to which he sustained gunshot injuries and died at the spot. Thus, there was sufficient time for the appellants to run away from the spot and to fire upon the police party. It is natural when the police party was there the appellants and their associates would try to make their escape good and for this reason they would try to fire upon the police party so that they might not be arrested. Thus, the contention advanced by the Amicus Curiae for the appellants is not tenable in the facts and circumstances of this case. 16. It was further contended on behalf of the appellants that there is variance in between the medical evidence and the ocular evidence. He further pointed out that the injuries shown in the postmortem report reveal that the deceased sustained fire-arm injuries on the front side of his body. It was further contended that S.O. Nagendra Singh was killed while he was grappling with Gurdip Singh, as such there was no occasion to sustain injuries on the front side of his body and he should have sustained fire-arm injuries on his back. Learned G.A. refuted the contention. Perusal of the injuries sustained by S.O. Nagendra Singh (deceased) clearly reveals that he sustained injuries on the front part of his body. It is also in the prosecution evidence that the appellants and their associates were inside the house. S.O. Nagendra Singh (deceased) challenged the appellants and their associates from outside the Jhala of Uttam Singh. Immediately after releasing the abducted persons the appellants and their associates started firing upon the police party. It is evident that the accused and the police party was in front of each other. It is also in the evidence that S.O. Nagendra Singh (deceased) tried to enter into the Jhala and he started grappling with Gurdip Singh in the meantime he was shot dead by the appellants. It is natural that the accused appellants and their associates were in front of the deceased. As such, the injuries, which have been caused to the deceased, were on the front part of his body. There is no evidence on record that the appellants and their associates fired from the back side of the deceased. It is also pertinent to mention here that the medical evidence is no the substantive piece of evidence, it is only a corroborative piece of evidence. In the case in the hand, the injuries sustained by the deceased at the time of incident is further corroborated by the medical evidence. We are completely in agreement with the finding recorded by the trial court. Therefore, we do not find any force in the contention raised on behalf for the appellants. 17. It was further contended that the prosecution has narrated an improbable story that Mukhtar Singh PW5 met with S.O. Nagendra Singh (deceased) at Atta Chakki of Ghanshyam Das and on