IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL COURT’S ORDER WHETHER THE CASE IS OR NOT APPROVED FOR REPORTING [Chapter VIII, Rule 32(2)(b)] Description of Case Criminal Appeal No. 713 of 2001 Decided on: June 27, 2006 A.F.R. (Approved for Reporting) Not approved for reporting Date. 27.06.2006 (Initials of Judges) 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. 1 Reserved Judgment IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Criminal Appeal No. 713 of 2001 (Old No. 1475 of 1984) 1. Kikkar Singh S/o Kushal Singh (Since deceased) 2. Kushal Singh S/o Bishan Singh 3. Girdhari All residents of Subhash Nagar, Dhora Dam, Police Station, Kichcha, District Nainital. …………….. Appellants Versus The State …………….. Respondent Mrs. Nishat Intezar, Amicus Curiae for appellant Nos. 2& 3. Mr. D.K. Sharma, Government Advocate assisted by Mr. H.C. Pande, Asstt. Government Advocate for the respondent State. Coram : Hon’ble Rajeev Gupta, C.J. Hon’ble Prafulla C. Pant, J. Dated: June 27, 2006. [Per Hon’ble Prafulla C. Pant, J.] This appeal, preferred under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), is directed against judgment and order dated April 21, 1984, passed in Session Trial No. 94 of 1983, by the then learned Additional Sessions Judge / Special Judge, Nainital, whereby appellants Kikkar Singh and Khushal Singh have been convicted under Section 302 of the Indian Penal Code, 1860 (hereinafter referred as I.P.C.) and each one of them has been sentenced to imprisonment for life, 2 and the third appellant Girdhari has been convicted under Section 302 read with Section 34 of the I.P.C. and is also sentenced to imprisonment for life. 2) We heard learned counsel for the parties and perused the entire evidence on record. 3) The prosecution story, in brief, is that about five days before the date of incident, when accused / appellant Kikkar Singh was passing through the field for Dalip Singh (deceased), the latter stopped him on which both exchanged heated words. Accused / appellant Kikkar Singh left on that day saying that he would see that who stops him from passing through the field. Thereafter, on 11.01.1983, at about 9:30 A.M., when Dalip Singh (deceased) and his father P.W. 1., Jalla Singh were returning from the house of Nihal Singh, near the field of Sone Lal, Jalla Singh heard cries of his son Dalip Singh who was following him at some distance. P.W. 1, Jalla Singh looked back and saw that accused / appellant Girdhari had caught hold of his son Dalip Singh and accused / appellants Kikkar Singh and Khushal Singh were giving axe blows on head and back of his son. He raised alarm on which witnesses P.W. 3, Kakka Singh, P.W. 4, Karam Singh P.W. 5, Bkhtawar Singh reached there. After dropping Dalip Singh dead on the spot, accused / appellants made good their escape. P.W. 1, Jalla Singh first went to one Cheema Sahib to report the matter and thereafter made arrangement of conveyance and went to lodge the First Information Report (Ext. A -1) with the police station Kichcha. Before lodging the First Information Report (hereinafter referred as F.I.R.) he got it typed in Tehsil Kichcha. The report was lodged at 3 13:30 hours on the same day i.e. 11.01.1983. P.W. 6, Head Constable Hari Nandan registered the crime and prepared check report (Ext. A -8) of the F.I.R. He further made necessary endorsement in the general diary (a copy of which is Ext. A -9). P.W. 8, Sub Inspector B.K. Juyal, investigated the crime and recorded the statement of witnesses. He got the inquest report (Ext. A -3) prepared at the spot. He further prepared photo sketch of the dead body (Ext. A -10), Police form No. 33 (Ext. A -11), letter to the Chief Medical Officer requesting for the postmortem of the dead body (Ext. A -12), Police form No. 13 (Ext. A -13), sample seal (Ext. A -14), site plan (Ext. A -15) and (Ext. A -16). The Investigating Officer also took the blood stained soil and simple soil and prepared memo (Ext. A -4). After arrest of the accused / appellants, the Investigating Officer got recovered the axe used in the crime and prepared recovery memo (Ext. A -6). The postmortem on the dead body was conducted by P.W. 2, Dr. S. Tandon, how prepared the postmortem examination report (Ext. A -2). After completion of the investigation, charge sheet (Ext. A -18) was submitted by the Investigating Officer against all the three accused / appellants in the court. 4) The Magistrate concerned after receiving the charge sheet registered the same and after providing necessary copies of the papers to the accused persons, as required under Section 207 of the Cr.P.C. committed the case to the court of Sessions for trial. The learned Sessions Judge, after hearing the prosecution and the defence , framed charge of offence punishable under Section 302 of the 4 I.P.C. against accused / appellants Kikkar Singh and Khushal Singh, and one that of under Section 302 read with Section 34 of the I.P.C. against the accused / appellant Girdhari. All the three accused pleaded not guilty and claimed to be tried. On this, the prosecution got examined P.W. 1, Jalla Singh, informant, eye witness and father of the deceased; P.W. 2, Dr. S. Tandon, who conducted the autopsy on the dead body and prepared postmortem examination report (Ext. A -2); P.W. 3, Kakka Singh, an eye witness; P.W. 4, Karam Singh, another eye witness; P.W. 5, Bakhtawar Singh, yet another eye witness; P.W. 6, Head Constable Hari Nandan, who prepared the check report of the F.I.R.; P.W. 7, Constable Dharam Pal, who had taken the dead body for postmortem examination and P.W. 8, Sub Inspector B.K. Juyal, the Investigating Officer. The oral as well as documentary evidence was put to the accused persons under Section 313 of the Cr.P.C., in reply to which all the accused persons alleged that they have been falsely implicated in the case due to enmity. No evidence in defence was adduced by the accused persons. The trial court, after hearing the arguments of prosecution and that of the defence, found all the three accused guilty of the charge framed against them and convicted accused / appellants Kikkar Singh and Khushal Singh on the charge of offence punishable under Section 302 of I.P.C., and accused / appellant Girdhari on the charge of offence punishable under Section 302 read with Section 34 of the I.P.C., and after hearing them on sentence, sentenced each of them to imprisonment for life. Aggrieved by said judgment and order dated 21.04.1984, passed by the trial court, the convicts have preferred this appeal before the 5 Allahabad High Court in the year 1984 from where it has been received by transfer to this Court under Section 35 of the U.P. Re-organization Act, 2000, for its disposal. 5) Before further discussions, it is pertinent to mention here, the ante mortem injuries found by P.W. 2, Dr. S. Tandon, at the time of conducting postmortem examination on 12.01.1983, at about 3:00 P.M. The postmortem examination report (Ext. A -2) shows following ante mortem injuries on the person of the deceased: i) Incised wound 12 cm X 1.5 cm X bone deep on the back of the skull with evidence of fracture of bone into pieces with the evidence of brain matter coming out of the wound. ii) Incised wound 5 cm X 1 cm X muscle deep on the upper part of the back of the neck. iii) Incised wound 8 cm X 1 cm X bone deep on the back of skull, 2 cm above injury No.2. iv) Incised wound 10 cm X 1 cm X bone deep. The wound was on the back of skull 1 cm above injury No. 3 and extending from the back of the ear to the right side of the skull. v) Incised wound 5 cm X ½ cm X bone deep on the back of the skull right side, and bone underneath the wound was fractured. All the injuries had clean cut margins. In the opinion of the Medical Officer, who conducted the postmortem examination, cause of death of the deceased was coma as a result of the ante mortem head injury. P.w. 2, Dr. S. Tandon, further opined that deceased could have died on 11.01.1983, at about 9:30 A.M. 6 6) There are as many as four eye witnesses of the incident in this case, namely P.W. 1, Jalla Singh, P.W. 3, Kakka Singh, P.W. 4, Karam Singh and P.W. 5, Bakhtawar Singh. P.W. 1, Jalla Singh has stated in his examination that some five days before the date of incident, when accused / appellant Kikkar Singh was passing through the field of this witness, his (witness’s) son Dalip Singh (deceased) stopped him and told him that he would not permit him to pass through his field. In reply to this accused / appellant Kikkar Singh challenged him that he would see who stops him from passing through the field. Five days thereafter, the witness states that at about 9:30 A.M., he along with his son Dalip Singh, who was following him at some distance, were returning from the house of Nihal Singh, when they reached near the field of Sone Lal, he (the witness) heard shrieks of his son Dalip Singh (deceased) on which he looked back and saw that accused / appellants Kikkar Singh and Khushal Singh were giving blows with axe on the head of Dalip Singh, who was caught held by accused / appellant Girdhari. P.W. 1, Jalla Singh further states that he shouted for help and on this the eye witnesses Kakka Singh (P.W. 3), Karam Singh (P.W. 4) and Bakhtawar Singh (P.W. 5) reached at the spot. According to this witness, Dalip Singh died of the injuries and on seeing the witnesses accused / appellants fled from the spot. This witness had also stated that he lodged the F.I.R. (Ext. A -1) with police station Kichcha on the very day. Before that he says that he went to one Cheema Sahib and thereafter went to Tehsil to get the report typed. 7 7) P.W. 3, Kakka Singh, P.W. 4, Karam Singh and P.W. 5, Bakhtawar Singh have corroborated the statement of P.W. 1, Jalla Singh. P.W. 3, Kakka Singh says that on the day of incident he was going from his house to Tiliapur, when at about 9:15 A.M., he heard shouts of Jalla Singh on which he went towards him and saw that accused / appellants Kikkar Singh and Khushal Singh were giving blows with axe to Dalip Singh, and accused / appellant Girdhari had caught hold of Dalip Singh. P.W. 4, Karam Singh and P.W. 5, Bakhtawar Singh have also narrated the same story like P.W. 3, Kakka Singh. The statement of eye witnesses in natural and trustworthy as against the appellants Kikkar Singh and Khushal Singh. There is no reason to disbelieve the statement of eye witnesses with regard to the role of appellants Kikkar Singh and Khushal Singh. Statement of these witness get corroboration from the ante mortem injuries (quoted above) found at the time of postmortem examination on the dead body of Dalip Singh. 8) As far as appellant No.3, Girdhari is concerned, he is said to have been servant of accused / appellant Kikkar Singh and Khushal Singh. His only role is said to have been that he kept hold of Dalip Singh when other two accused / appellants gave blows with axe on the head and back of Dalip Singh. But the statement of eye witnesses to that effect does not get corroboration from what has been mentioned in the F.I.R. (Ext. A -1). In the F.I.R. it is mentioned that accused Girdhari was also armed with axe and all the three were hitting at Dalip singh. This major contradiction which is apparent from the reading of F.I.R. 8 (Ext. A -1) and statement of the eye witnesses, creates a reasonable doubt as to the role of appellant No. 3, Girdhari, in the commission of crime. Apart from this, Girdhari had no motive to commit the crime. In the circumstances, we do not find that it is proved on the record beyond reasonable doubt that appellant No. 3, Girdhari had common intention with the accused / appellants Kikkar Singh and Khushal Singh in the commission of crime, as such, he is entitled to the benefit of reasonable doubt. 9) It is argued on behalf of the appellants that the prosecution story is unnatural. It is further argued that had P.W. 1, Jalla Singh witnessed the commission of crime he should have naturally tried to save life of his son Dalip Singh. We do not find any force in this argument, for the reason that as has come on record, appellants took few seconds in the commission of crime, and P.W. 1, Jalla Singh was some steps ahead of his son Dalip Singh. Not only this, we are conscious of the fact that appellants Kikkar Singh and Khushal Singh were armed with axe and it is natural that when the accused were armed with deadly weapons no one could have dared to intervene at that moment. 10) It is also contended by Mrs. Nishat Intezar, Amicus Curiae appearing for the appellants that there is delay of four hours in lodging the F.I.R., which cannot be said to have been explained in the circumstances of the case. We are unable to agree with the contention of the learned counsel for the reason that in the cross examination of one of the eye witnesses it has come on record that for about an 9 hour Jalla Singh continued to sob over the dead body of his son Dalip Singh. Apart from this, P.W. 1, Jalla Singh has stated that he had gone to one Cheema Sahib before getting the F.I.R. typed in Tehsil Kichcha and, it is only thereafter, the F.I.R. was lodged at 13:30 hours on the day of incident with police station Kichcha, which was at a distance of some 10 K.M. from the place of occurrence. As such, the time taken in lodging the F.I.R. cannot be said to be delayed one. 11) It is also submitted on behalf of the appellants that postmortem report (Ext. A -2) shows that there was faecal matter in the large intestine found in the dead body at the time of autopsy, as such, the incident as alleged to have been taken place at 9:30 A.M., doesn’t appear to be probable. In this connection, it is further submitted that the deceased would have eased out in the morning at about 6:00 A.M. and there should not have been any faecal matter remained present at 9:30 A.M. On examination of the evidence on record, we are of the opinion, that when there is a direct eye account of the prosecution story given by the eye witnesses and there is no reason to disbelieve the same, mere minor suspicion extracted from the postmortem examination cannot be said to be sufficient to create reasonable doubt in the prosecution story. In Kehar Singh Vs. State Delhi Administration (1988) 3 Supreme Court Cases 609, The Apex Court has held that postmortem examination becomes important only in cases where the cause of death is to be established and is a matter of controversy. The postmortem examination report losses its importance where there is evidence about the cause of the death. In the 10 present case as to the cause of death postmortem examination report, corroborates the prosecution story. 12) Lastly, it is argued on behalf of the appellants that the eye witnesses are related and interested witnesses and, therefore, should not be believed. We have closely scrutinized the oral evidence of the eye witnesses and found that there is nothing unnatural in their presence near the place of incident. All witnesses namely, P.W. 1, Jalla Singh, P. W. 3, Kakka Singh, P.W. 4, Karam Singh and P.W. 5. Bakhtawar Singh are residents of Mauja Dhaura Dam which falls within the limits of police station Kichcha. From the check report (Ext. A -8) of the F.I.R., it is clear that the incident had taken place in the limits of Dhaura Dam. They are not close relatives. In the circumstances, we see little force in the submission of learned counsel for the appellants. 13) Before parting with the judgment, it is pertinent to mention here that during the period of appeal, appellant No. 1, Kikkar Singh is reported to have been died and, as such, appeal as against him, stands abated. 14) For the reasons as discussed above, the appeal of appellant No. 3, Girdhari deserves to the allowed for the reason that charge of offence punishable under Section 302 read with Section 34 of the I.P.C., cannot be said to have been proved beyond reasonable doubt, as against him. His appeal is accordingly, allowed. Appellant No.3, Girdhari is acquitted of the charge of offence punishable under Section 302/ 34 of the I.P.C. He is on bail. He need not to surrender. The appeal of appellant No. 1, Kikkar Singh 11 stands abated due to his death during the period of appeal. The appeal of appellant No.2, Khushal Singh is dismissed. The conviction and sentence awarded against him under Section 302 of the I.P.C., by the trial court, is maintained. He is on bail. His bail is cancelled. He (Khushal Singh) shall be taken into custody forthwith by the court concerned to make him serve out the sentence of imprisonment for life. (Prafulla C. Pant, J.) (Rajeev Gupta, C.J.) Dt. June27, 2006. H.Negi