IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 1490 of 2001 (Old No. 1601 of 1995) Kali Ram & another … Appellants Vs State of U.P. … Opposite Party Sri Rajendra Singh, learned counsel for the appellants Sri H.C. Pujari, learned A.G.A. for the State Coram : Hon’ble B.C. Kandpal, J. Hon’ble B.S. Verma, J. [(Judgment Per: B.C. Kandpal, J. (Oral)] This appeal under Section 374 of Cr.P.C. has been filed by the appellants against the judgment and order dated 21.08.1995 passed by learned Additional Sessions Judge, Roorkee, District Haridwar in S.T. No. 459 of 1993 whereby convicting the appellants/accused persons under Section 302 and 34 of I.P.C. and sentencing them for life imprisonment and a fine of Rs. 500/- each. The trial court also directed that in default of payment of fine the accused/appellants shall have to undergo further rigorous imprisonment of one year. 2. The prosecution story, in short, is that Meghraj S/o Shankar R/o Village Mubarakpur P.S. Laksar lodged a written report on 21.01.1993 at 10:40 p.m. with P.S. Laksar stating therein that on 21.01.1993, his brother Azad (since deceased) who was a Rikshaw puller was coming back from Roorkee to his village Mubarakpur on foot and when he was passing in front of the house of Jagram @ Gullar house of the same village at about 07:00 p.m., the deceased was assaulted with Lathi and Gandasa (sharp edged heavy sickle) by Kali Ram, Jagram @ Gullar, Virendra and Jagram S/o Rati Ram on account of old enmity between the parties, on which, the 2 deceased raised hue and cry for his rescue. Then, Atar Singh, Lal Singh and some other villagers reached the scene of occurrence and witnessed the occurrence. On account of assault, said Azad became unconscious and he was taken to Laksar Hospital by the complainant and his son where the injuries of the injured were examined by the medical officer who prepared injury report (Ext. Ka6) on 21.01.1993 at 09:30 p.m. at Primary Health Centre. The medical officer found one contuse wound, two lacerated wound and one abrasion on the partial region as well as occipital region of the body of the injured. The doctor found that the injuries were caused by some blunt object and it was observed that the nature of injuries would be given after expert opinion from the surgeon. The duration of injuries was found to be fresh. Thereafter, the complainant had lodged the report (Ext. Ka-1) with the police. On the basis of which, check F.I.R. was prepared (Ext. Ka-2) by Head Constable – Sri Madan Pal Singh of P.S. Laksar and a case was registered under Section 308/323/307 I.P.C. as Crime No. 11 and an entry to that effect was made in the general diary. 3. Due to the injuries caused on the person of Azad he died on the same night at about 11:30 p.m., while he was admitted in MMG Hospital, Haridwar. The information of the death of the deceased – Azad was given by the Hospital on 22.01.1993 at 10:00 a.m. whereupon, Sub- Inspector, Ms. Kamlesh Sharma, who was posted at P.S. Kotwali, Haridwar reached the Hospital at about 11:30 a.m. on 22.01.1993 and she prepared the inquest report (Ext. Ka-10). In the opinion of the punchas’, the death of the deceased had occurred on account of ante-mortem injuries on his person. P.W. 9 – Kamlesh Sharma after preparation of inquest report prepared photo Lash (Ext. Ka11), Challan Lass (Ext. Ka12) and letters of 3 request (Ext. Ka 13 and 14) Chief Medical Officer, Haridwar for conducting the postmortem examination of the dead body. She thereafter, sealed the dead body and prepared sample seal etc. and sent the dead body for postmortem examination through constable – Rakesh Kumar Sharma. 4. The autopsy on the body of the deceased was conducted by Dr. Y.S. Bisht (P.W.7) on the same day at about 02:25 p.m. The doctor found the deceased to be aged about 28 years and noticed surgical dressing on the head of the deceased. The deceased was average built and his both eyes and mouth were closed. The following ante mortem injuries were found on the body of the deceased:- 1) Stitched wound 1.5 cm X one stitch on the right side of head, 8cm above the right ear. 2) Stitched wound 1cm X 1 stitch on the head 9cm above the left eyebrow. 3) Stitched wound 2.5cm X 2 stitches 1 cm above the injury No. 2 4) Contusion 5cm x 4 cm around the right eye. 5. The doctor has opined that the deceased had died on account of shock and haemorrhage due to ante mortem injuries. In the opinion of the doctor, these injuries were sufficient to cause death of the deceased in the ordinary course of nature. The doctor prepared the post mortem report (Ext. Ka7). 6. The investigation of the case was entrusted to Sri M.L. Gautam – Sub-inspector (P.W.8) of P.S. Laksar. The investigating officer went to the hospital Laksar where he came to know that the injured was referred to Haridwar. He then 4 went to Government Hospital Haridwar and came to know that the injured was in unconscious state, therefore, the statement could not be recorded. On the next day i.e. 22.01.1993, he went at the scene of occurrence in village Mubarakpur and inspected the spot in presence of Lal Singh, Atar Singh etc. He collected the bloodstain and plain earth from the spot and prepared its memo (Ext. ka9). He also prepared the site plan (Ext. Ka8) of the place of occurrence showing the relevant places therein. On 23.01.1993, the investigating officer received postmortem report and made entries thereof in the general diary and the crime was converted under Sections 302 of I.P.C. The investigating officer arrested the accused Jagram @ Gullar. On 24.01.1993, the investigating officer recorded the statement of witnesses – Lakhmir and Amar Singh. 7. The further investigation was entrusted to Sri Ajay Kumar, the then Station Officer of Police Station Laksar. After completing the investigation of the case, the investigating officer submitted the chargesheet before the court concerned. 8. In order to support his case, the prosecution has produced Meghraj (P.W.1), Atar Singh (P.W.2), Jairam (P.W.3), Madan Pal (P.W.4), Ajay Kumar (P.W.5), Dr. Ravindra Thapliyal (P.W.6), Dr. Y.S. Bisht (P.W. 7), M.S. Gautam (P.W.8) and Km. Kamlesh Sharma (P.W.9). 9. The accused persons in their statement under Section 313 Cr.P.C. denied their involvement in the commission of crime. However, they did not adduce any evidence in support of their case. 10. The learned Additional Sessions Judge, Roorkee, District Haridwar after hearing learned counsel for the parties 5 and considering the evidence available on record, found three accused, namely, Kali Ram, Jagram @ Gullar and Jagram S/o Rati Ram for the offence punishable under Section 302 and 34 of I.P.C. and sentencing them for life imprisonment and a fine of Rs. 500/-. The court below could not found any offence against the accused – Virendra and acquitted him for the charges levelled against him. 11. Feeling aggrieved by the aforesaid judgment and order, the accused/appellants have preferred this appeal before this Court and the accused Jagram @ Gullar has preferred Criminal Appeal No. 180 of 2007. 12. Before entering into the merit of the case, it is pertinent to mention here that the accused Jagram @ Gullar has died during the pendency of his appeal, therefore, the said appeal filed by him separately stands abated by this Court vide order dated 19.07.2007. 13. We have heard Sri Rajendra Singh, learned counsel for the appellants, Sri Harish Pujari, learned A.G.A. for the State and perused the record. 14. Meghraj (P.W.1) has deosed before the trial court that on 21.01.1993 his brother deceased – Azad was returning to his village – Mubarakpur on foot after finishing his work of Rikshaw pulling, when he reached near the house of Gullar @ Jagram at about 07:00 p.m., the assailants, namely, Virendra, Kali Ram, Gullar @ Jagram and Jagram S/o Rati Ram were standing there. Virendra was armed with Gandasa and remaining accused persons were having lathies in their hands. Suddenly, these assailants started beating his brother – with their weapons. On raising alarm by his brother – Azad, 6 villagers Atar Singh, Lal Singh and this witness himself along with other people came there and witnessed the occurrence. The accused persons on the assumption that Azad was dead, fled away from the place of occurrence. He has further deposed that his brother has fallen unconscious on the ground thereafter he and his son brought Azad in the boogie to the Laksar Hospital, where was medically examined for his injuries. This witness also deposed that he got prepared the First Information Report from Jagram and lodged the First Information Report at the police station. This witness has also stated that they were in enimical terms with the accused on account of dispute pertaining to the passage. 15. Atar Singh (P.W.2) has supported the version given by Meghraj (P.W.1). He has stated that in the evening at about 07:00 p.m., after hearing noise, he went to the place of incident and saw that Virendra, Jagram @ Gullar, Kali Ram and Jagram S/o Rati Ram were assaulting Azad. Virendra was armed with Gandasa and the rest were having lathies in their hands and Azad was crying. This witness has further deposed that the Marpit had started on the way in front of house of Lal Singh. He also stated that Azad had fallen down unconscious. He further stated that Megraj, he and Lal Singh and some other persons had reached at the spot and looking to them, accused fled away from the place of occurrence. This witness has also admitted that there was enmity between the parties with regard to the passage. He also stated the he had seen the occurrence in the electric light. 16. Dr. Y.S. Bisht (P.W.7) who conducted the postmortem of the deceased has stated that the death of the deceased – Azad took place on account of cumulative effect of all the injuries sustained by him. The autopsy on the body of 7 the deceased was conducted by Dr. Y.S. Bisht (P.W.7) on the same day at about 02:25 p.m. The doctor found the deceased to be aged about 28 years and noticed surgical dressing on the head of the deceased. The deceased was average built and his both eyes and mouth were closed. The doctor also opined that the deceased had died on account of shock and haemorrhage due to ante mortem injuries. In the opinion of the doctor, these injuries were sufficient to cause death of the deceased in the ordinary course of nature. The doctor prepared the post mortem report (Ext. Ka7). Further, the ocular version in this case finds support with the medical version. The prosecution has produced Dr. Rajendra Thapliyal (P.W.6) and Dr. Y.S. Bisht (P.W. 7). Dr. Rajendra Thapliyal (P.W.6) - medical officer found one contused wound, two lacerated wound and one abrasion on the parietal region as well as occipital region of the body of the injured. The doctor found that the injuries were caused by some blunt object and was also of the view that the nature of injuries would be opined after expert opinion from the surgeon is received. The duration of injuries was found to be fresh. 17. Learned counsel for the appellant has submitted that the First Information Report is belated. He has submitted that the incident took place at about 07:00 p.m. and the report of the same was lodged at about 10:40. He has further submitted that the distance of police station is about 6 kms from the place of occurrence. Therefore, the time of lodging the First Information Report creates a doubt about the prosecution case. 18. We do not find any force in the submission advanced by learned counsel for the appellants. From the perusal of the record, it reveals that the First Information 8 Report was lodged by Meghraj (P.W.1) on the date of occurrence. It is apparent from the record that the First Information Report was lodged at 10:40 p.m. while the occurrence took place at about 07:00 p.m. on 21.01.1993 and the distance of the police station from the scene of occurrence is about 6 kms. The evidence available on record shows that the victim/deceased was firstly taken to the hospital for treatment and thereafter, the First Information Report was lodged at the police station concerned. Therefore, there is no inordinate delay in lodging the First Information Report. Keeping in view the promptness of the First Information Report, the possibility of false implication of the accused persons does not appear on the part of the prosecution. 19. Learned counsel for the appellants has further submitted that there is no motive shown by the prosecution on the part of the accused/appellants to commit murder of the deceased, as such the statements of the witnesses be not taken as true statement. Learned counsel for the appellants has further submitted that the incident took place at about 07:00 p.m and there was no sufficient light to identify the appellants which creates a serious doubt about the prosecution case. In order to support his submission, he has relied upon the decision of Hon’ble Apex Court in Nathuni Yadav & others Vs State of Bihar & another reported in (1995) 9 Supreme Court Cases 238. 20. After going through the above decision of the Hon’ble Apex Court as well as perusing the facts of the case, we do not find any force in the submission advanced by learned counsel for the appellants. The fact in the cited case were that the incident took place in the dark hour of the night and there was no moon light available also while in the instant 9 case, the occurrence had taken place at about 7:00 p.m. and that time the twin light is available. However, the light of the electricity bulb is also available at the spot as per the evidence. The incident in this case has taken place in the Abadi area of the village. The witnesses and the assailants are known to each other as there is an enmity between the parties and both the parties are living in the same village. Therefore, there is no question that the witnesses had no occasion to correctly identify the assailants. As we have already stated above that the assailants were no strangers to the witnesses as well as the brother of the deceased being well acquainted with the physiognomy of each one of the killer. Meghraj (P.W.1), who has specifically stated in his cross-examination that the accused persons had enmity with the deceased – Azad on account of pathway and prior to this incident, the police arrested both the parties. Atar Singh (P.W.2) has also deposed in his statement that there was enmity between the parties prior to this incident on account of passage, therefore, on account of the enmity prevailing between the parties, the possibility cannot be ruled out that the accused who are convict had a motive to commit this crime. 21. In this case prosecution has produced two eyewitnesses, namely, Meghraj (P.W.1) and Atar Singh (P.W.2). Meghraj (P.W.1) has stated in his deposition that the occurrence took place on 21.01.1993 at about 07:00. On the date of incident the accused persons, namely, Kali Ram, Jagram @ Gullar and Jagram S/o Rati Ram were having lathis whereas accused Virender was having Gandasa (sharp edged heavy sickle). All the four accused persons assaulted upon the deceased and left the place of occurrence after seeing the villagers. Azad became unconscious on account of injuries received by him and he was immediately taken to Laksar 10 Hospital by the complainant and his son. Thereafter, he lodged the First Information Report at 10:40 p.m. on 21.01.1993. 22. We could not find any material contradiction in the statement of these two witnesses which may suggest that the genesis to the prosecution case could not disbelieved. Learned counsel for the defence has pointed out some minor contradiction in the statement of these two witnesses but these contradiction are not going to root of the prosecution case in order to disbelieve the story. The manner in which the incident has took place is fully supported by the prosecution witnesses. 23. Learned counsel for the appellants has lastly submitted that in the First Information Report no specific weapon has been shown with the accused/appellants and this is a case of subsequent development that these appellants were assigned the role of causing lathies injuries while one of the accused – Virendra was assigned the role of causing Gandasa injuries on the person of the deceased. It has also been submitted that Virendra who was having Gandasa at the time of the occurrence has been acquitted by the trial court as no Gandasa injury could be found on the person of the deceased. therefore, Virendra was given benefit of doubt and he was acquitted. It has thus been submitted by the learned counsel for the appellants that the case of the persons/appellants rests on the same set of facts and circumstances, therefore, they are also entitled for the acquittal. 24. We fail to appreciate the arguments advanced by learned counsel for the appellants. It is true that in the First 11 Information Report no specific weapon in the hand of the accused/appellants has been shown but it is the settled law that the First Information Report is not supposed to have all the facts of the case. Therefore, it was not necessary for the complainant to specify the weapons in the hands of the accused persons. However, in the evidence it has come that these appellants were having lathies in their hands and the injuries on the persons of the deceased were caused by the blunt weapons. Therefore, these persons are not entitled to get any benefit of doubt on account of the fact that the case rest on the same set of facts and circumstances. 25. The case of the present appellants stands on different footing. They have been assigned the specific role of causing the lathies injuries on the person of the deceased. Ocular version finds complete corroboration with the medical evidence and there is no reason to disbelieve the ocular version. The testimony of all the witness is natural and trustworthy. The evidence of P.W. 1 cannot be doubted only on the ground because he is brother of the deceased, unless some material contradiction is pointed out in his evidence. Similarly, the evidence of Atar Singh (P.W.2) also cannot be doubted as he is a resident of place which is very near to the place of occurrence. His presence on the scene of occurrence also appear to be natural and cannot be doubted in any manner. However, this witness is an independent witness and does not have any enmity with the accused persons. We do not find any reason to disbelieve the testimony of this witness as we have already indicated that no material contradiction also could be pointed out in the statement of this witness, which may falsify his testimony. 12 26. For the reasons stated above, we are of the considered view that the prosecution has been successful in establishing its case against both the accused persons beyond all reasonable doubts. We do not find any ground to interfere with the impugned judgment and order passed by the learned trial court. 27. We do not find any error of law committed by the trial court in awarding punishment as directed in the impugned order. Therefore, the appeal lacks merit and is liable to be dismissed. 28. Accordingly, the appeal is dismissed. The impugned judgment and order convicting the accused appellants for the offence under Sections 302/34 of I.P.C. and sentencing both of them to undergo for life imprisonment and further in default of payment of fine the accused/appellants shall have to undergo further rigorous imprisonment of one year is hereby confirmed. 29. Both the accused persons – Kali Ram and Jagram are on bail. Their bail bonds are cancelled and sureties discharged. They shall be taken into custody forthwith in order to serve out the sentence awarded against them. 30. Let the record be transmit to the trial court concerned forthwith for compliance. The compliance report be submitted to the court within a month. (B.S. Verma, J.) (B.C. Kandpal, J.) September 8, 2009 ASWAL