IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No. 349 of 2003 Chanchal Singh ………. Appellant (in jail) Versus State of Uttranchal (Now ‘Uttarakhand’) ……. Respondent Mr. Dinesh Chauhan, Advocate, present for the appellant. Mr. Prabhakar Joshi, Brief holder for the State/respondent. Mr. A.S. Gill, Advocate, present for the complainant. With CRIMINAL REVISION NO. 25 of 2004 Basanti Devi ………. Complainant/Revisionist Versus 1. Rajendra Singh 2. Smt. Beena Devi 3. Smt. Andi Devi 4. Smt. Bhawani Devi 5. State of Uttranchal (Now ‘Uttarakhand’) ……. Respondents Mr. A.S. Gill, Advocate, present for the revisionists. Mr. Dinesh Chauhan, Advocate, present for the respondents no. 1 to 4. Mr. Prabhakar Joshi, Brief holder for the State/respondent. 8th July, 2011 Coram : Hon’ble Prafulla C. Pant, J. Hon’ble Sudhanshu Dhulia, J. Per : Hon’ble Prafulla C. Pant, J. (Oral) Both these criminal appeal and the criminal revision are directed against the judgment and order dated 7.10.2003/8.10.2003, passed by the Sessions Judge, Bageshwar in Sessions Trial No. 14/2002, whereby said court has convicted the appellant Chanchal Singh under Section 302 and 307 IPC. He has been sentenced to imprisonment for life and directed to pay fine of ` 5,000/- 2 under Section 302 IPC, and rigorous imprisonment for a period of ten years and directed to pay fine of ` 5,000/- under Section 307 IPC. The respondents no. 1 to 4 in the revision have been acquitted of the charge by the trial court. 2. Heard learned Counsel for the parties and also perused the trial court record. 3. Prosecution story, in brief, is that on 11.4.2002, at about 7.30 pm, in village Gorkhet, within the limits of Patwari Circle Bastoli in District Bageshwar, Kailash Singh (deceased) was returning to his home, when accused appellant Chanchal Singh, armed with BARIYATH (heavy sharp edged weapon), along with other respondents no. 1 to 4 (in the revision) assaulted him. When PW3 Basanti Devi (mother of the deceased) intervened, she was also assaulted by the accused appellant Chanchal Singh with the same weapon. Both suffered injuries. Kailash Singh died on the spot. PW4 Keshari Devi, a neighbour of the deceased, also witnessed the incident. First Information Report (Ex. A-1) was got scribed through PW1 Anand Singh and given to the Patwari of the area (In certain hilly areas of Uttarakhand, revenue officials have been given the police powers). On the basis of the said First Information Report, Crime No. 4/2002 was registered by the Patwari, Bastoli in the intervening night of 11.4.2002 and 12.4.2002 at 00.10 hours, and a check report (Ex. A-5) was prepared, and necessary entry was made in the general diary. 4. PW8 Ramesh Ram, Patwari of the area, took up the investigation. On 12.4.2002, at about 7 am, dead body 3 of Kailash Singh was taken by the Patwari in his possession and inquest report (Ex. A-6) along with other necessary papers, viz., sketch of the dead body (Ex. A-10), sample seal (Ex. A-11), etc. were prepared. On 12.4.2002, at about 10.50 am, injuries on the person of Basanti Devi were examined by PW7 Dr. Deepak Garbayal, who prepared injury report (Ex. A-4) and observed four injuries including three incised wounds. On the dead body of Kailash Singh, PW6 Dr. S. Ram conducted the post- mortem examination on 12.4.2002 at 1.40 pm and recorded as many as 8 incised wounds. In the autopsy report (Ex. A-3), he opined that deceased has died of shock and hemorrhage as a result of ante mortem injuries. The Investigating Officer interrogated the witnesses, inspected the place of incident, prepared the site plan and took simple soil and bloodstained soil from the place of incident. On completion of the investigation, chargesheet (Ex. A-18) was filed against the accused appellant Chanchal Singh and four other accused, namely, Rajendra Singh, Beena Devi, Nandi Devi and Bhawani Devi (respondents no. 1 to 4 in the revision) for their trial in respect of the charge of offences punishable under Section 120B, 147, 504, 302, 304 IPC. 5. Chief Judicial Magistrate, Bageshwar, on receipt of the chargesheet, and after giving necessary copies to the accused, appears to have committed the case to the Court of Sessions for trial. 6. On 28.9.2002, learned Sessions Judge, Bageshwar, after hearing the parties, framed the charge of offence punishable under Section 302 IPC for commission of murder of Kailash Singh, and one punishable under 4 Section 307 IPC for attempting to commit murder of Basanti Devi against all the five accused, namely, Chanchal Singh, Rajendra Singh, Beena Devi, Nandi Devi and Bhawani Devi. They pleaded not guilty and claimed to be tried. On this, prosecution got examined PW1 Anand Singh, scribe of the FIR; PW2 Balwant Singh; PW3 Basanti Devi, injured eyewitness and informant; PW4 Keshari Devi, another eyewitness; PW5 Harendra Singh Bhakuni, in whose presence inquest report was prepared and simple soil and bloodstained soil were taken; PW6 Dr. S. Ram, who conducted post-mortem examination on dead body of Kailash Singh; PW7 Dr. Deepak Garbayal, who examined injuries on person of Basanti Devi and prepared injury report, and PW8 Ramesh Ram, Patwari, who investigated the crime. 7. The oral and documentary evidence was put to all the accused under Section 313 CrPC, in reply to which they alleged the same to be false and pleaded that they have been implicated due to enmity. However, no evidence in defence was adduced. The trial court, after hearing the parties found that prosecution has successfully proved charge of offences punishable under Section 302 and 307 IPC against the accused appellant Chanchal Singh and convicted him accordingly. However, as against other accused, the trial court found that charge could not be proved against them beyond reasonable doubt and they were acquitted of the same. After hearing on the sentence, the convict Chanchal Singh was sentenced to imprisonment for life and directed to pay fine of ` 5,000/- under Section 302 IPC and rigorous imprisonment for a period of ten years and directed to pay fine of ` 5,000/- under Section 307 IPC. Aggrieved by the said judgment and order dated 7.10.2003/8.10.2003, passed by the 5 Sessions Judge, Bageshwar in Sessions Trial No. 14/2002, the criminal appeal no. 349 of 2003 has been preferred by the convict. On the other hand, the informant filed criminal revision no. 25 of 2004, challenging the acquittal of the other accused. 8. Before further discussion, we think it just and proper to mention the ante mortem injuries found on the body of Kailash Singh (deceased). The same are being produced below from the autopsy report (Ex. A-3):- 1. Incised wound 8 cm x .5 cm on the dorsal aspect of right hand over the body of right index finger. 2. Multiple incised wound on the dorsum of left hand, bone deep. Clotted blood present over the injury. 3. Incised wound 8 cm x 4 cm cutting trachea, great vessels and muscles on the front of neck, clotted blood present over the injury. 4. Incise wound 8 cm x 4 cm bone deep below the right ear running horizontally. 5. Incised wound 8 cm x 4 cm bone deep cutting muscles, vessels on the right side nape of neck. 6. Incised wound 6 cm x 1 cm muscle deep on upper left side of neck. 7. Multiple incised wound bone deep on the back of head. 8. Incised wound 1 cm x .5 cm muscle deep on the back, 4 cm below the right shoulder.” 9. PW6 Dr. S. Ram opined that deceased had died of shock and hemorrhage as a result of ante mortem injuries suffered by him. He further stated that injuries could have been caused on 11.4.2002 at 7.30 pm with BARIYATH (heavy sharp edged weapon). 6 10. From the above medical evidence on record, it is established that Kailash Singh died homicidal death. Now, we have to see whether accused appellant Chanchal Singh has committed murder of Kailash Singh, and attempted to commit murder of Basanti Devi (PW3) or not. We have also to examine whether the trial court has committed any error of law in acquitting the accused respondents Rajendra Singh, Beena Devi, Nandi Devi and Bhawani Devi or not. 11. PW3 Basanti Devi is the star eyewitness, who is said to have suffered injuries in the incident. She is the mother of deceased. She has stated that it was the 11th day of the month of April, when the incident took place. She further stated that at about 7 pm, her son was coming back to the house, when accused Rajan Singh, Beena, Bhawani, Nandi surrounded him. PW3 Basanti Devi states that it was Chanchal Singh (accused appellant), who gave a blow with BARIYATH on the neck of her son Kailash Singh. She further stated that she shouted for help. The witness has narrated that thereafter accused appellant Chanchal Singh assaulted her with BARIYATH. The witness has proved the First Information Report lodged by her. 12. At this stage, we think it pertinent to mention the injuries found on the person of Basanti Devi (PW3) by PW7 Dr. Deepak Garbayal, who prepared the injury report on 12.4.2002 at 10.50 am. The said injuries, found on person of Basanti Devi, are being reproduced below from injury report (Ex. A-4): 7 1. Incised wound of 5.5. cm x .2 cm horizontally placed on the right lateral aspect of the right lower canttnes of the eye. The edges are red swollen and adherent with blood, dried clotted blood also present over the injury. 2. Oblique incised wound of 4.5 cm x .5 cm x 1 cm muscle deep on the medial lower border of the right scapula, crepitation present around the wound, superficial emphysema present. The edges are red swollen and adherent with dried clotted blood. 3. Oblique aberration of 1.2 cm x .4 cm above the 2nd injury, bright red in colour with scab formation. 4. Longitudinal incised wound of 6.2 cm x .4 cm, muscle deep on the left lateral from the mid scalp.” 13. PW7 Dr. Deepak Garbayal has stated that the injuries on the person of Basanti Devi could have been caused on 11.4.2002 at 7.30 pm with a BARIYATH. He has proved the injury report (Ex. A-4). The statement of this witness corroborates the fact that PW3 Basanti Devi did suffer injuries at the time of incident. As such, we are of the view that the statement of PW3 Basanti Devi, who was injured in the incident, cannot be disbelieved, and trial court has rightly found that the prosecution has successfully proved charge of offence punishable under Section 302 IPC for commission of murder of Kailash Singh, and one punishable under Section 307 IPC for attempting to commit murder of Basanti Devi, against accused appellant Chanchal Singh. 14. Statement of PW3 Basanti Devi further gets corroboration from the statement of PW4 Keshari Devi, who is her neighbour. She has no enmity with any of the accused. Her presence at the place of incident is natural, and her statement cannot be discarded. 8 15. On behalf of the appellant Chanchal Singh, attention of this Court is drawn to overwriting on the date mentioned in the First Information Report, where number “10” has been scored off and number “11” has been mentioned, and on the basis of which, it is stated that the incident has not taken place as suggested by the prosecution. 16. We have carefully gone through the evidence on record and we find that the correction made on the date in the First Information Report is nothing but clerical. It is pertinent to mention here that PW3 Basanti Devi and PW4 Keshari Devi are illiterate witnesses, and PW8 Ramesh Ram, being a revenue official, is not an expert investigating officer like a regular police officer. From the statement of the eyewitnesses read with the medical injury reports and other papers on record, it is clearly established that the incident has taken place actually on 11.4.2002 at 7.30 pm. Date of lodging of the First Information Report as 11.4.2002 is erroneously mentioned as the time of lodging the same was midnight at 00.10 hours of the next day. Therefore, on the above ground, we are not inclined to disbelieve the prosecution story. 17. On behalf of the revisionist complainant, it is argued before us that the trial court has erred in law in acquitting Rajendra Singh. In this connection, our attention is drawn to evidence of PW3 Basanti Devi, who has stated that Rajendra Singh caught hold of Kailash Singh (deceased), before Chanchal Singh assaulted him with BARIYATH. However, this part of the evidence does not get corroboration from other evidence on record, and as such, we are not inclined to interfere with the benefit of 9 reasonable doubt given by the trial court to the said accused respondent. 18. For the reasons, as discussed above, we do not find any force either in the appeal, filed by the convict, nor in the revision, filed by the complainant. Therefore, both appeal and the revision are hereby dismissed. The impugned judgment and order dated 7.10.2003/8.10.2003, passed by the Sessions Judge, Bageshwar in Sessions Trial No. 14/2002, convicting the accused appellant Chanchal Singh under Section 302 and 307 IPC, and acquitting the other accused from the said charge, is hereby affirmed. 19. Let a copy of this judgment be sent to the Superintendent of jail concerned, where the appellant Chanchal Singh is lodged. Let the trial court record be also sent back. (Sudhanshu Dhulia, J.) (Prafulla C. Pant, J.) 8.7.2011 8.7.2011 Prabodh