IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 144 of 2003 Goshai Singh S/o Alam Singh R/o Village Sarso Patwari Dhanyal, Tehsil Bhkiyasain Tehsil Almora ..Appellant. Vs. State … Respondent. Sri Dinesh Chauhan, learned counsel for the appellant. Sri Prabhakar Joshi, learned A.G.A. for the respondent. Hon’ble B.C. Kandpal, J. Hon’ble V.K. Bist, J. [Per: Hon’ble B.C. Kandpal, J.] This criminal appeal, under Section 374(2) Cr.P.C. has been preferred against the judgment and order dated 19-4-2003, passed by Additional Sessions Judge/ F.T.C. Almora, in S.T.No. 26/1998, State Vs. Goshai Singh, convicting the accused U/S 302 I.P.C. and sentencing him to undergo Life Imprisonment and a fine of Rs. 1000/- and in default of payment of fine to further undergo R.I. for six months. 2- The prosecution case, in brief, is that deceased Chait Ram and accused Goshai Singh both were resident of village Sarso, Patwari Circle Dhanyal, Tehsil Bhikiyasain District Almora. Their houses are side by side. On 10-12-1997 at about 10.15 A.M. deceased Chait Ram was going with a copper-pitcher after filling it with water from the water-tape. At this accused Goshai Singh came there armed with an axe and committed the murder of Chait Ram by giving axe blow. Thereafter the accused went to his house with that axe. On raising alarm by the witnesses a large number of people 2 collected there and they brought out the accused from his house and tied him with a tree. The written F.I.R. of the incident was lodged by Kamla Dutt Pradhan of village Saraikhet on 10-12-1997 with the S.D.M. On the same day the S.D.M. made endorsement on it directing the N.T. to visit the spot and take the action in accordance with law. On the basis of written F.I.R., Ext. Ka.1, chick F.I.R. Ext. Ka.5 was prepared by the Naib Tehsildar Bhikiyasain. Shekh Alamgir the then Naib Tehsildar visited the place of incident and conducted the inquest on the dead body of the deceased and prepared inquest report Ext. Ka.2. He sealed the dead body and wrote letter to C.M.O. Ext. Ka.6, prepared sketch of dead body, Ext. Ka.7, Police Form No. 13, Ext. Ka.8, sample seal Ext. Ka.9 and sent the dead body for post mortem. The I.O. also took into possession the copper-pitcher which was with the deceased and sealed it in a cloth vide memo Ext. Ka.10 in presence of witnesses. On the pointing out of accused the I.O. also recovered the axe which was used by him in the commission of crime vide memo Ext. Ka.3. He further seized the blood-stained cloths of the deceased and prepared memo Ext. Ka.11. He also took into possession the blood-stained and plain earth from the place of occurrence vide memos Ext. Ka.12 and Ka.13 respectively. He also handed over the ring and glasses of the deceased to his widow Smt. Bimala Devi vide memo Ext. Ka.14. The I.O. inspected the place of occurrence and prepared site-plan Ext. Ka.15, on 11.12.1997. 3- Dr. N.K. Pandey, Civil Hospital Ranikhet has conducted the autopsy on the dead body of the 3 deceased on 12-12-1997 at 12 noon and prepared the the autopsy report Ext. Ka.4. 4- After completion of the investigation the I.O. submitted charge sheet Ext. Ka.16 against the accused. 5- The Judicial Magistrate, Ranikhet vide order dated 27-5-1998 committed the case to the court of Sessions for trial. 6- The Sessions Judge, Almora framed charge U/S 302 I.P.C. against the accused, who pleaded not guilty and claimed to be tried. Thereafter, the case was transferred to the court of Additional Sessions Judge/F.T.C., Almora for trial. 7- The prosecution in support of its case examined P.W.1, Hansi Devi, P.W.2, Kamla Dutt, P.W.3, Smt. Pushpa Devi, P.W.4, Dr. N.K. Pandey, and P.W.5, Shekh Alamgir. 8- The accused in his statement U/S 313 Cr.P.C. denied the prosecution allegations and alleged that the recovery of axe was not done at his pointing out. He further alleged that he has been falsely implicated in the case due to enmity. No evidence was adduced in defence by the accused. 9- The learned Addl. Sessions Judge after hearing learned counsel for the parties and considering all the evidence on record, found the accused Goshai Singh guilty of committing the murder of Chait Ram punishable U/S 302 I.P.C. and convicted and sentenced him to undergo Life 4 Imprisonment and a fine of Rs. 1,000/- and in default of payment of fine to further undergo R.I. for six months. 10- Feeling aggrieved the convict appellant has preferred this appeal. 11- We have heard Sri Dinesh Chauhan learned counsel for the appellant and learned A.G.A. and perused the record. 12- The first submission of learned counsel for the appellant is that the F.I.R. has been lodged with inordinate delay. 13- In this case the F.I.R. has been lodged by P.W.2, Kamla Dutt, Pradhan of village Saraikhet at 4.30 P.M. on 10-12-1997. The occurrence has taken place at 10.15 A.M. on 10-12-1997. P.W.2, Kamla Dutt has deposed that on 10-12-1997 at about 10-30 A.M. he was standing at his grinding mill, Rajendra Singh and Mohan Singh came to him and informed that accused Goshai Singh has committed the murder of Chait Ram and asked him to go to the village. Thereafter, this witness went to Patwari Chauki. At that time Patwari was not present at his Chauki, so this witness asked the peon of Patwari to accompany him. They went at the place of occurrence where the dead body of Chait Ram was lying. Thereafter peon of Patwari and other villagers caught hold of the accused Goshai Singh and tied him with a tree. The villagers asked him to go to the S.D.M. and lodge the report of the incident. At this this witness and the peon of Patwari went to the S.D.M. and got prepared the 5 F.I.R. and handed over it to S.D.M. Bhikiyasain at 4.30 P.M. the same day. Thereafter the S.D.M. directed the Naib Tehsildar to do the investigation in the case. This witness has proved the written F.I.R. Ext. Ka.1. In the aforesaid circumstances it cannot be said that the report has been lodged with delay. Rather we find that the report has been lodged promptly. The promptness in lodging the F.I.R. excludes all the possibilities of false implication of the accused in the commission of crime. 14- The second submission of learned counsel for the appellant is that no motive has been assigned to the accused for committing the murder of Chait Ram and whole prosecution story has been fabricated against the accused. 15- We do not find any substance in the above submission of learned defence counsel. The instant case rests on direct evidence. The defence has tried to put the suggestion to the witnesses that the accused/appellant has been implicated on account of enmity, but the enmity between the complainant or the eye witnesses and accused has not been specified anywhere. In a case of direct evidence the motive does not carry any importance and it is just academic. 16- The prosecution case has been fully proved by two eyewitnesses viz. P.W.1 Smt. Hansi Devi and P.W.3, Smt. Pushpa Devi. P.W.1, Smt. Hansi Devi has made on oath statement that she knew deceased Chait Ram and the accused Goshai Singh. The incident took place on 19-12-1997 at 6 about 10.00 A M. She was standing on the roof of her Varandah. She saw that deceased Chait Ram was going towards his Gaushala after filling water in copper pitcher from the water-tape, suddenly accused Goshai Singh came out of his house with an axe and he gave axe blow on the copper pitcher of the deceased. Chait Ram fell down. Thereafter accused Goshai Singh gave axe blow on the neck of the deceased and then accused went to his house along with his axe. She cried loudly and hearing her cries Bimla Devi w/o deceased Chait Ram and other villagers came there and caught hold of the accused from his house and tied him with a tree in front of a neighbouring house. Thereafter village Pradhan went to Patwari for lodging the F.I.R. This witness has identified the axe material Ex.1, by which the accused had committed the murder of the deceased. In her cross-examination this witness has deposed that the water-tape is visible from her house. This witness has deposed in her cross- examination that she had no enmity with the accused. The defence could not bring out anything material which may be fatal to the ocular version of this witness. In our opinion the witness is a natural witness and has deposed the true facts whichever she saw. 17- The another eyewitness of the occurrence is P.W.3, Smt. Pushpa Devi. This witness has fully supported the version of P.W.1, Smt. Hansi Devi. She has deposed that she knew the deceased Chait Ram and the accused Goshai Singh. On 10-12-1997 at about 10-00 A.M. she was going to the grinding mill. Accused was coming having an axe in his hand. Deceased Chait Ram was standing near the 7 water-pipe. The deceased had brought the axe to kill Chait Ram. Being nervous she ran towards her house. This witness further deposed that after 10- 15 minutes she knew that Chait Ram was killed with an axe. This witness has been cross examined and suggestion was put to her that she had grudge with the accused but she has denied this suggestion and categorically has said that she has no enmity or grudge towards the accused. This witness has fully proved that at the time of incident the accused Goshai Singh was coming with an axe in his hand towards the water-tape and deceased Chait Ram was also present near water-tape. Therefore, the ocular version of P.W.1, Smt. Hansi Devi and P.W.3, Smt. Pushpa Devi, fully prove that the accused Goshai Singh has committed the murder of Chait Ram. 18- It is worthy to mention here that both the eye witnesses produced by the prosecution in the case have no enmity in any manner with the accused. Further no material contradiction could be pointed out by the learned counsel for the defence which may indicate that the prosecution story is false or unbelievable. The eye witnesses account have also established the manner in which the incident has taken place. We do not find any reason to disbelieve the eyewitnesses account in this case. 19- Further, the eye witnesses account find corroboration with the medical evidence. P.W.4, Dr. N.K. Pandey, who conducted the autopsy on the body of the deceased Chait Ram has deposed before the court that he found following ante-mortem injuries on the person of the deceased:- 8 1- Incised wound over right side of neck laterally. Size 13cm x 7cm, wound was passing deep upto feramen magnum, dividing all muscles vessels and tissue in between. Right cerotid arteries and juglar vein completely divided. Mandible completely divided at right side anterior to angle of mandible. Fracture of mandible also present at angle left side. Wound was also passing into buccal cavity latterly right side. 1st and 2nd cervical vertebre fractured into pieces. Spinal cord was completely divided at the level of first cavical vertebre. Fracture of rim of feramen magnium present laterally right side. 2- Incised wound 4cm behind right ear extending upto middle of neck posteriorly, size 16cm x 5cm. Wound communicating with injury No.1. 3- Lacerated wound of scalp left side 6cm above left ear size 3cm x 0.5cm scalp deep. 20- This witness has further stated that these injuries could have been caused on the person of the deceased on 10-12-1997 at 10.15 A.M. and the injuries could have been caused by a sharp edged weapon and were sufficient to cause the death of the deceased. P.W.1, Smt. Hansi who has seen the actual occurrence has deposed that the accused has given axe blow on the neck of the deceased. P.W.3, Smt. Pushpa Devi also deposed that the accused was having an axe and lateron she heard 9 that the accused has committed the murder of Chait Ram with an axe. Injury No.1 was also found by the doctor on the neck of the deceased. Therefore, the injuries on the person of the deceased are fully corroborated with the ocular version. 21- The recovery of the axe used in the commission of the crime, has been made at the pointing out of the accused. P.W.2, Kamla Dutt has stated that he along with the peon of Patwari and the villagers apprehended the accused Goshai Singh and tied him with a tree. Thereafter he went to lodge the report and when Naib Tehsildar visited the village he found the accused tying with the tree. Naib Tehsildar took the accused in custody and the accused thereafter accompanied the Naib Tehsildar to his house from where the axe used in the commission of crime was recovered on the pointing out of the accused. The Naib Tehsildar prepared memo with regard to the recovery of the axe. 22- Learned counsel for the defence has vehemently stressed on this point that the alleged recovered axe was not sent for chemical examination, therefore, it cannot be said with certainty that this was the axe used in the commission of crime. We fail to appreciate the argument advanced by learned counsel for the appellant. It is the latches on the part of the prosecution that the prosecution did not send the axe for chemical examination but in any case the accused is not going to get the benefit on account of the latches committed by the investigating officer. However, on the basis of the ocular version which 10 finds corroboration with the medical evidence, it is quite clear that it was the accused and none-else who caused injuries on the person of deceased Chait Ram with an axe in his hand and on account of the injuries Chait Ram died. The evidence adduced by the prosecution is absolutely inimpeachable. Both the eye witnesses do not have any kind of enmity with the accused and there is no reason as to why they will falsely implicate the accused/appellant in the commission of crime. 23- For the reasons recorded above, we are of the definite view that the accused/appellant has committed the murder of deceased Chait Ram with an axe. The conviction and sentence recorded by the trial court against the accused/appellant requires no interference. The appeal lacks merit and is liable to be dismissed. 24- Accordingly, the appeal is dismissed. The conviction and sentence U/S 302 I.P.C. awarded by the trial court against the accused/appellant is hereby confirmed. 25- The accused is already in jail. He shall be detained in jail to serve out the sentence awarded by the trial court against him. (V.K. Bist, J.) (B.C. Kandpal, J.) Dated: November 19, 2009. ISB 11