IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 397 of 2001 (Old No. 1943 of 1997) (1) Tari, S/o Arjun Singh, R/o Katpuliya, P.S. Gadarpur, District Udham Singh Nagar. (2) Surjit Singh alias Thapa, S/o Khan Singh, R/o Kakrala, P.S. Gadarpur District Udham Singh Nagar. (3) Pooran, S/o Khan Singh, R/o Kakrala, P.S. Gadarpur, District Udham Singh Nagar. ………..Appellants. Versus State ……..Opposite Party. Sri A.D. Massey and Ms. Krishi Shukla, Advocates, for the appellants. Sri Amit Bhatt, Additional Government Advocate, for the Opposite Party. Hon’ble Prafulla C. Pant, J. Hon’ble Dharam Veer, J. [Oral – Hon’ble Prafulla C. Pant, J.] This appeal, preferred under Section 374 of Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), is directed against the judgment and order dated 26.09.1997, passed by Additional Sessions Judge / Special Judge, Nainital, in Sessions Trial No. 283 of 1994, whereby accused / appellants Tari, Surjit Singh alias Thapa and Pooran, are convicted under 2 Section 302 and 307 of Indian Penal Code, 1860 (hereinafter referred as I.P.C.), and each one of the convicts has been sentenced to imprisonment for life under Section 302 I.P.C. and rigorous imprisonment for a period of seven years under Section 307 I.P.C.. (2) Heard learned counsel for the parties and perused the lower court record. (3) Prosecution story in brief is that accused / appellants Tari, Surjit Singh alias Thapa and Pooran had apprehension that information regarding theft of forest wood was given by complainant Jogender Singh (P.W.4) to the forest officials, who arrested them. Due to that reason accused / appellants started harbouring enmity against Jogender Singh. In the intervening night of 15th and 16th May 1994, at about midnight, the three accused / appellants Tari, Surjit Singh alias Thapa and Pooran armed with swords came to the house of complainant Jogender Singh in Village Fakrala, within the limits of Police Station Gadarpur. At that time Bhagwan Singh (deceased), brother of complainant Jogender Singh and other family members were sleeping. Accused / appellant Surjit Singh alias Thapa hurling abuses at Jogender Singh and his brother said “SALE TUNE HAME JANGLAT WALON SE PAKADWAYA HAI AAJ TUJHE THIKANE LAGA DETE HAI”. Thereafter, the three accused started assaulting with the swords on the person of Bhagwan Singh and killed him. When Jogender Singh, his mother Laxmi 3 Kaur and his sister Sumitra Kaur (P.W.3) came to rescue of Bhagwan Singh, the accused / appellants assaulted them and injured Sumitra Kaur (P.W.3) as well as Jogender Singh (P.W.4). Meanwhile, on hearing the noise, other villagers Magan Singh and Nader Singh (P.W.2) also reached there. Prosecution case is that at the time of incident a lantern was lighting at the spot. After seeing the villagers, the three accused left the place of incident. Thereafter, complainant Jogender Singh got scribed report of the incident with one Gurmeet Singh and lodged the same on 16.05.1994 at 7.10 a.m. with Police Station Gadarpur. On the basis of said report a Crime No. 93 of 1994 was registered against all the three accused relating to offences punishable under Sections 302 and 307 I.P.C.. A check report (Ext.A-14) was prepared by the concerned Head Constable at the Police Station. Investigation was taken up by P.W.5 Sub Inspector Sita Ram Bhardwaj. The Police took the dead body in their possession and prepared the inquest report (Ext.A-3) and other necessary papers i.e. Police Form No. 13 (Ext.A-7), sample seal (Ext.A-8), sketch of the dead body (Ext.A-6) etc. and sent the dead body for postmortem examination in a sealed cover. P.W.6 Dr. Shamim Ahmad conducted the postmortem examination on 17.05.1994 at 1.00 p.m. and prepared autopsy report (Ext.A-16). He opined that the deceased had died due to shock and haemorrhage as a result of ante mortem injuries (injury on neck). There were two incised injuries, mentioned in the autopsy report, one on the 4 neck and another on the left arm. Meanwhile, the Investigating Officer prepared the site plan (Ext.A-4) and interrogated the witnesses. The accused / appellants were arrested by the Investigating Officer. According to prosecution, swords used in the crime were recovered at the pointing out of the accused in respect of which recovery memo (Ext.A-10) was prepared. Injuries on the person of Jogender Singh (P.W.-4) and that of Sumitra Kaur (P.W.3) were examined by Dr. Waheed Malik (P.W.7) at Primary Health Center, Gularbhoj, on 16.05.1994. The said Medical Officer prepared injury reports (Ext.A-17 and Ext.A-18) in respect of the aforesaid two witnesses. It appears that the investigation was later on taken over by T.D. Joshi, who on completion of investigation submitted the charge sheet (Ext.A-13) against the accused / appellants Tari, Surjit Singh alias Thapa and Pooran Singh before the Magistrate. (4) The Magistrate on receipt of the 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. The Sessions Judge appears to have transferred the trial to the court of Additional Sessions Judge / Special Judge, Nainital. On 20.02.1995, after hearing the parties, said court framed charge of offence punishable under Sections 302 (for commission of murder of Bhagwan Singh) and 307 I.P.C. (for attempting to commit murder of Jogender Singh and Sumitra Kaur) against all the three 5 accused / appellants Tari, Surjit Singh alias Thapa and Pooran, who pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W.l Preetam Singh (witness of recovery of simple and blood stained soil), P.W.2 Nader Singh (declared hostile), P.W.3 Sumitra Kaur (injured eyewitness), P.W.4 Jogender Singh (complainant and injured eyewitness), P.W.5 Sub Inspector Sita Ram Bhardwaj, who initially investigated the crime, P.W.6 Dr. Shamim Ahmad, who conducted the postmortem examination and P.W.7 Dr. Waheed Malik, who recorded the injuries on the person of Sumitra Kaur and Jogender Singh. The oral and documentary evidence was put to the accused under Section 313 of Cr.P.C. to which they alleged the same to be false. Accused / appellant Surjit Singh alias Thapa took the plea in the statement under Section 313 Cr.P.C. that he was admitted in Primary Health Center, Gularbhoj on the day of incident. In defence D.W.1 Dr. Waheed Malik (who was examined by prosecution as P.W.7) was got examined to prove certain injuries found on the person of accused Surjit Singh on 16.05.1994. The trial court after hearing the parties found all the three accused / appellants guilty of charge of offences punishable under Sections 302 and 307 I.P.C.. After hearing the parties on sentence, each one of the convicts was sentenced to imprisonment for life under Section 302 I.P.C. and rigorous imprisonment for a period of seven years under Section 307 I.P.C.. Aggrieved by said judgment and order dated 26.09.1997, passed by Additional 6 Sessions Judge / Special Judge, Nainital, in Sessions Trial No. 283 of 1994, this appeal was filed before Allahabad High Court by the convicts (appellants) on 20th November 1997, where it was admitted on 21.11.1997. The appeal is received by transfer to this Court under Section 35 of U.P. Reorganisation Act, 2000 (Central Act No. 29 of 2000), for its disposal. (5) Before further discussions, we think it just and proper to mention the ante mortem injuries found by P.W.6 Dr. Shamim Ahmad, who conducted postmortem examination on the dead body of Bhagwan Singh and prepared autopsy report (Ext.A-16). Said document discloses following ante mortem injuries found on the dead body of deceased:- “(i) Incised wound 4.5 cm x 1 cm x bone deep (bone not cut) on the left side neck 5cm below the left ear. All the underlying structures cut including left carotid artery. (ii) Incised wound 2cm x .3 cm x skin deep on the front of left arm 4 cm below the left shoulder joint.” On internal examination, the Medical Officer found that left carotid artery was cut at the site of injury no. (i). At the end of the postmortem examination, the 7 Medical Officer opined that deceased had died due to shock and haemorrhage as a result of ante mortem injuries (injury on neck). The ante mortem injures, mentioned in the autopsy report and the opinion given by the Medical Officer establishes on record the homicidal death of Bhagwan Singh. (6) Now the question is who has committed the murder of Bhagwan Singh. (7) On behalf of prosecution two injured eyewitnesses were got examined to prove the fact that the accused / appellants committed murder of Bhagwan Singh. P.W.3 Sumitra Kaur has stated on oath that it was midnight time when she along with her sister, mother were sleeping inside their house. She has further stated that accused Tari called Bhagwan Singh, on which she and other persons in the house woke up and came out. They saw that accused Tari, Surjit Singh alias Thapa and Pooran Singh armed with swords had come. Accused Thapa hurling abuses said that “TUNE JANGLAT WALON SE HAMARE LAKDI KI CHORI ME HAME KYON PAKADWAYA HAM TUJHE AAJ JAAN SE MAAR DENGE” and, thereafter, all the three started assaulting Bhagwan Singh with the swords. The witness further stated that there was a lantern light in the house. The witness further stated that Bhagwan Singh suffered injuries of sword on his neck. The witness has stated that alarm was raised by her, her brother and others, on which the villagers also reached 8 at the spot. The witness has further stated that the accused / appellants caused injuries in the incident to her and other inmates in the house. P.W.3 Sumitra Kaur has further stated that due to the fear no report was lodged in the night, and in the next morning her brother Jogender Singh went to Police Station to lodge the First Information Report. (8) P.W.4 Jogender Singh (complainant) has corroborated the entire prosecution story as narrated by P.W.3 Sumitra Kaur. He also proved that he suffered injuries in the incident. He has further stated that he lodged the First Information Report (Ext.A-2). The presence of this witness (P.W.4 Jogender Singh) as well as that of Sumitra Kaur (P.W.3) is natural in their house and it cannot be doubted that they witnessed the incident occurred in the house. The testimony of the two injured eyewitnesses also gets corroboration from the injuries they suffered in the incident, which are proved by P.W.7 Dr. Waheed Malik. P.W.7 Dr. Waheed Malik has stated on oath that on 16.05.1994 at about 1.20 p.m., he examined the injuries on the person of Jogender Singh (P.W.4) and prepared injury report (Ext.A-17). According to this witness Jogender Singh had following injures on his person on the aforesaid date and time: “(i) Abraded contusion 02 cm x 02 cm on middle of the posterior 9 aspect of left forearm. Covered with dark clotted blood. (ii) Lacerated wound 02 cm x 0.5 cm x skin deep across the middle of the palmar aspect of left index finger covered with dark clotted blood. (iii) Lacerated wound 1.5 cm x .5 cm x skin deep across the palmar aspect of root of the left little finger covered with dark clotted blood.” All the injures were simple in nature caused by hard blunt object. P.W.4 Jogender Singh has stated that he received the injuries from the reverse side of the sword. P.W.7 Dr. Waheed Malik has further stated that he also examined injuries on the person of Sumitra Kaur (P.W.3) on 16.05.1994 in the afternoon and prepared injury report (Ext.A-18). Said report discloses following injuries on the person of Sumitra:- “(i) An incised wound 03 cm x .2 cm x superficial along the hyperthenar space of right palm. Covered with dark clotted blood. 10 (ii) An incised wound 02 cm x .1 cm x superficial across the hypothenar space of left palm. Covered with dark clotted blood.” The injuries on the person of Sumitra were also found to be simple but caused with sharp cutting object. According to the Medical Officer, injuries of Sumitra and Jogender Singh were about one day old. The testimony of the two eyewitnesses, namely, Sumitra Kaur (P.W.3) and Jogender Singh (P.W.4) fully prove the fact that accused / appellants Tari, Surjit Singh alias Thapa and Pooran, armed with swords, assaulted Bhagwan Singh with intention to cause his death, who succumbed to the injuries, as such they committed culpable homicide amounting to murder of Bhagwan Singh with common intention. The testimony of aforesaid two witnesses cannot be disbelieved as their presence in the house in the night is natural and injuries were found on their person, which they have suffered at the time of incident. (9) Learned counsel for the appellants argued that in the inquest report, time of First Information Report is mentioned as 7.30 a.m. while the check report (Ext.A- 14) of First Information Report (Ext.A-2) discloses that First Information Report was lodged at 7.10 a.m., as such the report is ante timed. We have closely examined the evidence on record and found that the extract of General Diary, a copy of which is Ext.A-15, 11 shows that the First Information Report was lodged at 7.10 a.m.. Merely for the reason that in the inquest report the time 7.30 a.m. is mentioned of proceeding from the Police Station (after lodging of the First Information Report) with regard to which entry is made in the General Diary at Serial No. 11 on 16.05.1994, the alleged discrepancy pointed out by the learned counsel for the appellants does not indicate that F.I.R. is ante timed. (10) Sri A.D. Massey, learned counsel for the appellants pointed out that P.W.1 Preetam Singh has mentioned in the cross-examination that a report prepared earlier was destroyed and another report was lodged with the Police. We have gone through his (Preetam Singh’s) statement. This is a witness of recovery of simple and blood stained soil and not of the First Information Report. What the witness has stated in the cross-examination is that there had been some Panchayat in the village and some report was prepared, which was given to the Police for some inquiry. It does not mention anything relating to First Information Report lodged by the complainant in respect of the incident in question. Thirdly, it is argued on behalf of appellants that all the documents proved on the record are not separately put to the accused under Section 313 Cr.P.C., particularly the entry in the General Diary and the check report. We have gone through the statements recorded by the trial court and found that the substantial compliance of Section 313 Cr.P.C. has 12 been made as questions has been put to the accused as to all the material evidence adduced by the prosecution. (11) On behalf of appellants our attention is drawn also to some contradictions in the statement of the witnesses. It is pointed out that P.W.4 Jogender Singh has stated that the lantern was kept on the floor while P.W.3 Sumitra has stated that the lantern was hanging on the wall. The minor contradiction in the statement of the two witnesses is natural and such contradiction does not create any reasonable doubt in the otherwise trustworthy evidence given by the witnesses. Our attention is drawn on behalf of appellants to the case of State of M.P. Vs. Ghudan, 2005 Supreme Court Cases (Crl) 801 and it is contended that omission to mention the source of light in the site plan on the part of Investigating Officer creates reasonable doubt in the prosecution story. We have gone through the said case law. It was a case where the accused / appellant was not known to the complainant and in that case the apex court took the view that it was not possible for the witnesses to identify him without sufficient light. On the other hand in the present case, the accused / appellants are known to the eyewitnesses and in such a case it was not difficult to identify a known person even in the poor light. (12) Also learned counsel for the appellants referred to the case of Hem Raj & Ors. Vs. State of Haryana 13 2005 (2) Criminal Court Cases 618, in which the apex court has found that non-examination of the independent witnesses, creates reasonable doubt in the prosecution story. In the case of Hem Raj (supra) the place of incident was a market place and the independent witnesses were available while in the present case the incident has taken place in the night in the house of the complainant and on raising alarm the villagers have reached. In such cases it is not clear whether villagers were able to see the accused or not. On the facts and in the circumstances of the present case, non-examination of independent witnesses does not materially affect the testimony of the injured eyewitnesses. (13) However, we are of the view that from the injuries suffered by two eyewitnesses, namely, Sumitra Kaur (P.W.3) and Jogender Singh (P.W.4), it cannot be said that accused / appellants had intention to kill them as such where the trial court has rightly convicted the accused / appellants under Section 302 I.P.C. for commission of murder of Bhagwan Singh, the conviction of the accused / appellants on the charge of offence punishable under Section 307 I.P.C. is not sustainable. The act on the part of the accused / appellants as against the aforesaid two eyewitnesses constitutes only offence punishable under Section 323 I.P.C., as the injuries suffered by them are simple in nature and not on the vital parts. 14 (14) For the reasons as discussed above, this appeal is liable to be dismissed so far as it relates to the conviction and sentence recorded by the trial court in respect of offence punishable under Section 302 I.P.C.. Prosecution has successfully proved the charge of offence punishable under Section 302 as against each of the accused / appellants and each one of them is liable to imprisonment for life, as awarded by the trial court. However, the appeal deserves to be allowed in respect of the conviction and sentence recorded against the accused / appellants on the count of 307 I.P.C.. Accordingly, the appeal is partly allowed. Conviction and sentence recorded by the trial court in respect of offence punishable under Section 302 I.P.C. is affirmed. To that extent appeal is dismissed. However, the appeal is allowed in respect of the conviction and sentence recorded relating to offence punishable under Section 307 I.P.C.. The accused / appellants are acquitted of charge of offence punishable under Section 307 I.P.C.. Instead each one of them is convicted under Section 323 I.P.C. and sentenced to rigorous imprisonment for a period of six months on said count. Registry is directed to send the lower court record back to the trial court. Also, a copy of this judgment be sent to the concerned Superintendent of Jail (if any of the accused / appellants is in jail). (Dharam Veer, J.) (Prafulla C. Pant, J.) 27.08.2008 NS 15