IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL COURT’S ORDER WHETHER THE CASE IS OR IS NOT APPROVED FOR REPORTING [Chapter VIII, Rule 32(2)(b)] Description of Case Crl. Appeal No. 2050 of 2001 Decided on: March 17, 2008 (Old No. 1324 of 1990) A.F.R. (Approved for Reporting) Not Approved for Reporting Date 17.03.2008 (Initial of Judge) Note: Bench Reader will attach this at the top of first page of the judgment when it is put up before the Judge for signature. Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 2050 of 2001 (Old No. 1324 of 1990) 1. Sri Dayal Singh S/o Ujagar Singh 2. Sri Budh Singh S/o Dayal Singh 3. Sri Resham Singh S/o Dayal Singh 4. Sri Palabwan Singh S/o Bhola Singh All R/o Village Salwati Chboti, P.S. Nanakmatta, District Nainital. …………… Appellants Versus The State …………… Respondent Mr. Pushpa Joshi, Advocate for the appellants. Mr. A.S. Gill, Advocate for the complainant. Mr. Amit Bhatt, Addl. Govt. Advocate assisted by Mr. M.A. Khan, Brief Holder for the respondent-State. Coram: Hon’ble Prafulla C. Pant, J. Hon’ble Dharam Veer, J. Hon. Prafulla C. Pant, J. (Oral) This appeal, preferred under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), is directed against the judgment and order dated 29.06.1990, passed by the then learned Sessions Judge, Nainital, in Sessions trial No. 160 of 1986, whereby all the four accused / appellants, namely Dayal Singh, Budh Singh, Resham Singh and Pahalwan Singh have been convicted under Section 302 read with section 34 of the Indian Penal Code, 1860 (hereinafter referred as I.P.C.), and one punishable under Section 323 read with Section 34 of I.P.C. Each one of the convicts is sentenced by the trial court to undergo imprisonment for life under Section 302 read with Section 34 of I.P.C. and rigorous imprisonment for a period of six months under Section 323 read with Section 34 of I.P.C. 2) Heard learned counsel for the parties and perused the lower court record. 3) Prosecution story, in brief, is that in Village Salwati, within the limits of police station Sitarganj (now part of District Udham Singh Nagar) fields of complainant Gurmukh Singh (P.W. 2) and that of the accused / appellant Dayal Singh are adjoining. Their fields were separated by ‘Medh’ (boundary mound). On 08.12.1985, Gurmukh Singh, P.W. 2 along with his father Pyara Singh (deceased) had gone to their fields. At about 12:00 noon, Balwant Kaur (P.W. 3), wife of the deceased, came to the field with meals for her husband (Pyara Singh) and son (Gurmukh Singh). Forty five minutes thereafter, accused / appellants Dayal Singh and his two sons Budh Singh and Resham Singh along with accused / appellant Pahalwan Singh, armed with lathies, reached to the field and started hurling abuses at Pyara Singh and Gurmukh Singh, raising objection as to why the boundary mound was disturbed. In reply to it, Pyara Singh told the accused / appellants that the boundary mound is joint of the parties. This infuriated the accused / appellants, who surrounded Pyara Singh and gave lathi blows to him. Pyara Singh fell down in the field and even thereafter, the accused / appellants gave lathi blows till he succumbed to the injuries, at the spot. Gurmukh Singh (P.W. 2) and Balwant Kaur (P.W. 4) came forward in an attempt to rescue Pyara Singh. However, they were also inflicted lathi blows by the accused / appellants. Satnam Singh, who was ploughing a nearby field and P.W. 5 Uttam Singh, who was passing through the village on way to his home, witnessed the incident. They challenged the accused, on which the accused / appellants ran away from the place of incident. While fleeing, turban (Ext. –1) of accused / appellant Budh Singh fell on the spot. Gurmukh Singh, P.W. 2, leaving dead body of his father Pyara Singh at the spot went to the police station along with some other villagers and got the first information report (Ext. A –3) scribed by Kashmir Singh and lodged the same with Police Station Sitarganj, on the very day i.e. 08.12.1985, at about 02:15 P.M. On the basis of said report Crime No. 354 of 1985 was registered against accused / appellants relating to offence punishable under Section 302 of I.P.C. Head Constable Inder Singh prepared the check report (Ext. A – 4A) of the first information report and made necessary entry in the general diary at Sl. No. 25 (copy of extract of which is Ext. A –5, on the record) in the presence of Sub Inspector Kartar Singh (P.W. 6), who investigated the crime thereafter. The injuries of Gurmukh Singh, P.W. 2 and Balwant Kaur, P.W. 4, were examined on the very day i.e. 08.12.1985, at about 04:00 P.M., at Primary Health Center, Sitarganj by Dr. P.C. Pandey (P.W. 1) where they were taken by Constable Rajendra Singh and Constable Virendra Singh. The Investigating Officer, meanwhile, proceeded to the spot and in the presence of the witnesses, including Balwant Singh (P.W. 8), prepared the inquest report (Ext. A –6) of the dead body of Pyara Singh, after taking the same in his possession. While preparing the inquest report on the very day i.e. 08.12.1985, it was clearly mentioned that there were there noticeable external injuries on the dead body of Pyara Singh. The Investigating Officer further prepared sketch of the dead body (Ext. A –7), police form No. 13 (Ext. A –8), letter (Ext. A –8) to the Chief Superintendent of Civil Hospital, Haldwani, requesting for postmortem examination on the dead body of deceased pyara Singh. Constable Chandra Pal Singh (P.W. 7) along with constable Asif Pervez took the dead body in a sealed condition for postmortem examination. Meanwhile, site plan (Ext. A –10) was prepared by Investigating Officer on 08.12.1985, itself. The postmortem examination was conducted on 09.12.1985, at about 11:00 A.M., by Dr. C.N. Tiwari, P.W. 3, in Civil Hospital, Haldwani. The seals on the dead body remained intact throughout. Dr. C.N. Tiwari (P.W. 3) on postmortem examination did not record any ante mortem injury. He opined that he could not ascertain cause of death and directed to preserve the viscera. On the other hand, on 08.12.1985, at 05:45 P.M., accused / appellant Dayal Singh lodged a cross first information report with police station Sitarganj, recorded by Head Constable, Inder Singh (C.W. 1), who prepared the check report (Ext. C –1) and made entry in the general diary at Sl. No. 36. Said cross case was registered as Crime No. 354-A of 1985 under Section 307 of I.P.C. against Gurmukh Singh (son of deceased Pyara Singh). However, after completion of investigation, final report was submitted in the cross case lodged by accused/ appellant Dayal Singh and a charge sheet (Ext. A –11) was filed by the police against accused / appellants, namely Dayal Singh, Budh Singh, Resham Singh and Pahalwan Singh, for their trial in respect of offence punishable under Section 302 of I.P.C. 4) The Magistrate, on receipt of charge sheet, after giving necessary copies to the accused, as required under Section 207 of Cr.P.C., committed the case to the court of Sessions, for trial. Learned Sessions Judge after hearing the parties, on 27.10.1987, framed charge of offence punishable under Section 302 read with Section 34 (for committing murder of Pyara Singh), the offence punishable under Section 323 read with Section 34 of I.P.C. (for voluntarily causing hurt to Gurmukh Singh, and the offence punishable under Section 323 read with Section 34 of I.P.C. (for voluntarily causing hurt to Balwant Kaur). The accused / appellants, namely Dayal Singh, Budh Singh, Resham Singh and Pahalwan Singh pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1 Dr. P.C. Pandey (who recorded the injuries found on the person of Gurmukh Singh and Balwant Kaur); P.W. 2 Gurmukh Singh (complainant and injured eyewitness); P.W. 3 Dr. C.N. Tiwari (who conducted the postmortem examination and prepared the autopsy report Ext. A –4); P.W. 4 Balwant Kuar (injured eyewitness); P.W. 5 Uttam Singh (a chance eyewitness); P.W. 6 Kartar Singh (Investigating Officer); P.W. 7 Constable Chandra Pal Singh (who took the dead body of Pyara Singh in a sealed condition for postmortem examination and guarded the same till it was handed over for autopsy) and P.W. 8 Balwant Singh (a witness before whom inquest report of dead body for Pyara Singh was prepared). After prosecution evidence was over the court got examined C.W. 1 Head Constable Inder Singh (who prepared the check report of the cross first information lodged by Dayal Singh, at 07:45 hours, on 08.12.1985) and C.W. 2 Dr. K.P.S. Chauhan, Medical Officer (who recorded the injuries on the person of accused / appellant Dayal Singh). The entire prosecution evidence and the evidence adduced by the court witnesses were put to the accused / appellants under Section 313 of Cr.P.C., on 23.12.1988 and 04.04.1990, in reply to which they replied that the evidence adduced against them was false. However, no evidence in defence was adduced on behalf of the accused / appellants. After hearing the parties, the trial court found all the four accused guilty for the offence punishable under Section 302 read with Section 34 of I.P.C., for committing murder of Pyara Singh and they are found guilty also of offence punishable under Section 323 read with Section 34 of I.P.C., for voluntarily causing hurt to Gurmukh Singh and Balwant Kaur. After hearing the parties on sentence, learned trial court sentenced each of the accused / appellants to undergo imprisonment for life under Section 302 read with Section 34 of I.P.C. and rigorous imprisonment for a period of six months under Section 323 read with Section 34 of I.P.C. for voluntarily causing hurt to Gurmukh Singh and rigorous imprisonment for a period of six months under Section 323 read with Section 34 of I.P.C. for voluntarily causing hurt to Balwant Kaur. All the sentences were directed to run concurrently. Aggrieved by said judgment and order dated 29.06.1990, passed by the Sessions Judge, Nainital, in Session Trials No. 160 of 1986, this appeal was preferred by the convicts before the Allahabad High Court on 02.07.1990, where it was admitted on 03.07.1990. The appeal is received by transfer to this Court under Section 35 of the U.P. Re- organization act, 2000, for its disposal. 5) Before further discussion, it is pertinent to mention here the injuries observed by the witnesses at the time when the inquest report of deceased Pyara Singh is prepared. The inquest report (Ext. A –6) on the record shows that there were three external injuries visible on the dead body of Praya Singh. The three external injuries mentioned in the inquest report (Ext. A –6) are as under: i) Swelling lump on the head. ii) Swelling on the hip. iii) Abrasion on the right leg near the ankle. The above three injuries mentioned in the inquest report, though, does not find corroboration from the postmortem report, but they are also shown in the sketch of the dead body (Ext. A –7) of deceased Pyara Singh. The inquest report (Ext. A –6) and the sketch of the dead body (Ext. A – 7) were prepared on 08.12.1985 P.W. 3. Dr. C.N. Tiwari, who conducted the postmortem examination and prepared the autopsy report (Ext. A –4) admits in his examination-in- chief itself that the dead body was received along with inquest report and other papers. This Medical Officer could not explain as to why he did not thought it just and proper to inform the police or to the Chief Medical Officer to get done fresh postmortem examination by another Medical Officer, as he did not find any ante mortem injury on the dead body of the deceased. In his cross- examination, he admits having received a letter on 13th January 1986, from Senior Superintendent of Police, Nainital, seeking his explanation as to why he handed over the dead body in such circumstances to the relatives without informing the police on noticing the discrepancy. (P.W. 3 Dr. C.N. Tiwari, appears to have been permitted to be cross-examined by the prosecution under Section 154 of the Indian Evidence Act, 1872). On going through the entire evidence on record, we find the conduct of P.W. 3 Dr. C.N. Tiwari, is highly doubtful and for the reasons which we would like to discuss in the following paragraphs would indicate that the act on the part of P.W. 3, Dr. C.N. Tiwari, constitutes fabricating false evidence (Section 192 of I.P.C.). 6) The check report (Ext. C –1) of the cross first information report lodged by accused / appellant Dayal Singh with police station Sitarganj itself shows that on 08.12.1985, incident took place in the field and in ‘MAAR PEET’ Pyara Singh (deceased) fell down. Accused / appellant Dayal Singh has alleged in his cross first information report that after said ‘MAAR PEET’, Gurmkh Singh came with a gun from his house and fired at Dayal Singh, which injured his right leg. Though, the accused / appellants have denied having lodged any cross first information report, but statement of C.W. 2, Dr. K.P.S. Chauhan, Medical Officer, who examined injuries on the person of Dayal Singh on 08.12.1985, corroborates the fact that accused / appellant Dayal Singh had suffered on that day following injuries, which are recorded in Ext. C –4. The same are being reproduced as under: 1) Multiple small round lacerated wound of 0.2 cm X 0.2 cm on upper 2/3 of right leg on inner side. Wound is eliptical in shape, fresh blood oozing out. No tattooing, blackening or scorching. 2) Two small round eliptical lacerated wound of 0.2 cm X 0.2 cm on inner side of right ankle, 2.5 cm apart from each other. Edges inverted. Fresh oozing of blood found. No tattooing, blackening or scorching found. In the opinion of the doctor both the injuries were caused by firearm. 7) In the light of above circumstances, now we are examining the statement of the injured witnesses. P.W. 2 Gurmukh Singh, who is complainant and injured eyewitness, has stated on oath that on the day of incident, he along with his father Pyara Singh was working in his field. This witness has further stated that field of accused / appellant Dayal Singh and his sons Budh Singh and Resham Singh was adjoining to the field of the complainant. This witness has further stated that accused / appellant Pahalwan Singh is uncle of accused Budh Singh and Resham Singh. Narrating the prosecution story, the witness states that on 08.12.1985, at 12:45 P.M., accused / appellants, armed with lathies, came at the spot and objected that why the soil is being added on the boundary mound, between the fields. When they were told that the boundary mound is joint of the parties, the aforesaid four accused / appellants gave lathi blows to father (Pyara Singh) of the complainant who died on the spot. The witness further states that when he along with his mother Balwant Kaur made an attempt to save Pyara Singh they were also given lathi blows. The witness has proved first information report (Ext. A –3) lodged by him with the police station on the very day of the incident. The witness has further told that turban (Ext. 1) of the accused Budh Singh which fell down at the spot, was handed over by him to the police. The statement of this witness cannot be ignored lightly, as what he states is corroborated from the injuries recorded by P.W. 1 Dr. P.C. Pandey, who prepared the injury report (Ext. A –1) at about 04:00 P.M. on the very day i.e. 08.12.1985. Said report shows that the injured reached the hospital with Constable Rajendra Singh, who identified him. The injuries of Gurmukh Singh (P.W. 2) recorded in Ext. A –1 by P.W. 1 Dr. P.C. Pandey, are being reproduced below: i) Lacerated wound of 5 cm X 1 cm X 1 cm in depth. Margins were lacerated. Red fresh blood present over wound. Wound is caused by hard and blunt object. Wound is at the junction of left parietal and occipital bone 7 cm from upper part of left ear. Caused by blunt object. ii) Contusion of 6 cm X 2.5 cm on left side of body 3 cm above the left iliac crust. Simple in nature. Caused by hard and blunt object. In respect of injury No. (i) also the Doctor has opined that the same has been caused by hard and blunt object. The duration of the injury recorded to be fresh. 8) There is yet another injured witness of the incident who is examined by the prosecution to prove the prosecution story. That witness is P.W. 4 Balwant Kaur, wife of the deceased. This eyewitness has stated that on the day of incident, at about 12:00 noon, she had gone to the field with meals for her son Gurmukh Singh (P.W. 2) and her husband Pyara Singh (deceased). This witness further states that at 12:45 P.M., accused / appellants Dayal Singh, Budh Singh, Resham Singh and Pahalwan Singh, armed with lathies, hurled abuses at Pyara Singh and Gurmukh Singh and objected as to why the soil is being added on the boundary mound. When Gurmukh Singh and Pyara Singh told the accused / appellants that the boundary mound between their field and that of the accused/ appellants is joint, the accused / appellants started giving lathi blows to Pyara Singh. When she and her son Gurmukh Singh tried to save Pyara Singh, accused / appellants caused injuries with lathies to them also. This witness has stated on oath that her husband Pyara Singh died on the spot due to the head injury suffered in the incident. The witness has lastly stated that turban of accused Budh Singh fell on the spot. Statements of this witness is also not only natural, trustworthy and reliable but also gets corroboration from the injuries recorded by P.W. 1 Dr. P.C. Pandey in the injury report (Ext. A –2), which are enumerated as under: i) Contusion of 6 cm X 3 cm on left shoulder, caused by hard blunt object. ii) Contusion of 5 cm X 4 cm on the left side of middle of left upper arm, bluish red in colour, caused by hard and blunt object. iii) Contusion of 4 cm X 2 cm on left parietal bone, 6 cm from left ear, caused by hard and blunt object. The nature of injuries found by the doctor were simple. 9) Commission of murder of Pyara Singh and voluntarily causing hurt to Gurmukh Singh (P.W. 2) and Balwant Kaur (P.W. 4) is not only proved from the statements of the injured eyewitnesses, as discussed above, but also get corroboration from the cross first information report (Ext. C –1) lodged by accused / appellant Dayal Singh himself, and the injury report (Ext. C –4) recorded by C.W. 2 Dr. K.P.S. Chauhan, on 08.12.1985. 10) Mrs. Pushpa Joshi, learned counsel for the appellants drew attention of this Court to principle of law laid down in Mani Ram and others Vs. State of U.P.; 1994 Supreme Court Cases (Cri) 1242, and it is contended that where direct evidence is inconsistent to the medical evidence it is not safe to pass conviction on the ocular testimony. After going through the said case law we find that it has no application to the present case for the reason that the fact and circumstances in both the cases are different. In the case referred there was only one eyewitness of the incident and his testimony was not believed by the Apex court as the same was inconsistent to the medical evidence. But, in the present case there are two injured eyewitnesses and both of them were examined by prosecution. As such, the ocular testimony given by such witnesses cannot be discarded, particularly, when as discussed above, from the cross first information report lodged by the accused / appellant Dayal Singh himself it appears that ‘MAAR PEET’ had taken place and Pyara Singh (deceased) got injured and fell down. 11) Learned counsel or the appellants further argued that the postmortem report indicates that viscera was preserved, but no report of viscera has been produced by the prosecution, on record. After going through the entire record, we are of the view that had it been a case of poisoning or some case of that nature, the non-production of viscera report could have created reasonable doubt in the prosecution story, but the present case is of causing external injury by giving lathi blows and whether the viscera is preserved or not, is of no relevance for this case. 12) Thirdly, it is submitted on behalf of the accused / appellants that the colour of contusion shown in the medical reports of P.W. 2 Gurmukh Singh and P.W. 4 Balwant Kaur are bluish red, and as such, it appears that said injuries were received by them before noon. We find no substance in the submission advanced on behalf of the appellants for the reason that as per the prosecution story, the incident has taken place at 12:45 P.M. The time of medical examination of P.W. 2 Gurmukh Singh, shown in the medial report is 04:00 P.M., while that of P.W. 4 Balwant Kaur, is 07:30 P.M. In the medical report (Ext. A -1) which pertains to injured Gurmukh Singh, the Medical Officer has opined that the injuries were fresh within six hours. As such, by 04:00 P.M., the injuries of Gurmukh Singh was definitely within six hours of the incident as alleged by the prosecution. As to the injuries of Balwant Kaur, medical report Ext. A -2 shows that the duration of injuries is within 12 hours. This further corroborates the time of incident stated by the eyewitnesses. Word ‘bluish-red’ mentioned in the injury No. (ii) of Balwant Kaur does not create any doubt as to the time of incident for the reason that as per the Medical Jurisprudence, initially, colour of contusion remains red and thereafter it starts getting bluish. Apart from this, the skin of colour and other factors also have its impact on the appearance of colour of contusion. 13) Mrs. Joshi, learned counsel for the appellants argued that if number of blows are given by all the four accused / appellants then only three external injuries seen by the eyewitnesses at the time of preparation of inquest report belie the fact that Pyara Singh was murdered in the manner prosecution is asserting. In reply to this on behalf of the prosecution reliance was placed in the case of Sewa Ram and another vs. State of U.P.; 2007 (8) Supreme 536 and Balwant Singh and others Vs. State of Punjab; 2008 (1) Supreme 659, and it is contended that where all the accused are armed with deadly weapons it is not necessary that blows of all of them should have landed on the vital part of the deceased. Their common intention in such circumstances can be gathered from the circumstances of the case. We agree with the reply given by the prosecution that since all the four accused are armed with lathies and the deceased appears to have died because of head injury received by lathi blow and all of them have participated in the crime, as such, the trial court has rightly convicted them under Section 302 read with Section 34 of I.P.C. for commission of murder of Pyara Singh and under Section 323 read with Section 34 of I.P.C. for voluntarily causing hurt to Gurmukh Singh and Balwant Kaur. 14) Lastly, it is argued on behalf of the appellants that the inquest report and first information report are ante timed. After going through the injury reports of Gurmukh Singh (P.W. 2) and Balwant Kaur (P.W. 4) recorded by P.W. 1 Dr. P.C. Pandey, which are of the same day when the incident had occurred, we find no substance in the argument that the