IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 106 of 2001 (Old No. 342 of 1999) (1) Rajendra Kumar alias Raju (2) Dalip Both Sons of Late Sri Ram Chandra And Resident of 24, Dila Ram Bazar, P.S. Dalanwala, District Dehradun. ………..Appellants. Versus State ……..Opposite Party. Ms. Geeta Parihar, Advocate, holding brief of Mr. Lokendra Dobhal, Advocate for the appellant. Sri Amit Bhatt, Additional Government Advocate for the State. Hon’ble Prafulla C. Pant, J. Hon’ble B.S. Verma, 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 11.02.1999 / 12.02.1999, passed by Ist Additional Sessions Judge, Dehradun, in Sessions Trial No. 195 of 1996, whereby accused / appellants Rajendra Kumar alias Raju and Dalip are convicted under Section 302 read with Section 34 of Indian Penal Code, 1860 (hereinafter referred as I.P.C.), and each one of the convicts is sentenced to undergo imprisonment for life and also directed to pay fine of Rs.5,000/-. In default of payment of fine the defaulter 2 is directed to undergo rigorous imprisonment for a further period of six months. (2) Heard learned counsel for the parties and perused the lower court record. (3) Prosecution story in brief is that on 09.05.1996 at about 9 p.m. Rahul, nephew of complainant Narendra Kumar (P.W.1) went in his neighborhood to his uncle Dalip Kumar (accused / appellant) and asked for Sweets (Toffee). Accused / appellant declined to oblige Rahul and slapped him and made him go away. On this, Rahul complained to his real uncle Surendra (deceased). Surendra then went to Dalip Kumar and protested as to why he had slapped Rahul. On this, accused / appellant Dalip and his brothers accused / appellant Rajendra Kumar alias Raju, Harish and Manish started hurling abuses at Surendra. Surendra asked him to stop hurling abuses at him. On this, accused / appellant Dalip, Rajendra Kumar alias Raju along with their two brothers Harish and Manish assaulted Surendra due to which Surendra fell down on the ground. (Deceased Surendra was cousin of accused / appellants Rajendra and Dalip). In the First Information Report it is alleged that Harish and Manish caught hold of Surendra and accused / appellant Dalip and Rajendra Kumar alias Raju assaulted Surendra with ‘SUA’ (a pointed object). On hearing the noise, Narendra Kumar (P.W.1), his brother Sunil Chand (P.W.2) and Smt. Mala Devi (P.W.6) came out from their houses and saw the incident. The injured was taken to nearby private clinic where he was declared dead. 3 Thereafter, deceased was brought back to home and Narendra Kumar (P.W.1) lodged the First Information Report (Ext.A-1) with Police Station Dalanwala at about 11.40 p.m., which was registered as Crime No. 127 of 1996, relating to offence punishable under Section 302 I.P.C. against accused / appellants Rajendra Kumar alias Raju, Dalip and other two, namely, Harish and Manish. (Manish was minor at the time of incident as such his case was separated and was tried by Juvenile Board). Sub Inspector Udai Veer Singh (P.W.8) took up the investigation. He interrogated the complainant and other witnesses and arrested accused Rajendra Kumar alias Raju and on his pointing out, got recovered ‘SUA’ (a pointed object) used in the crime in the presence of public witnesses Anand Pal, Pramod Kumar (P.W.5) and Kishan Lal (P.W.4) and prepared the recovery memo (Ext.A-5). Thereafter, on 10.05.1996, in the morning, dead body of the deceased was taken into possession by the Police and inquest report (Ext.A-3) was prepared in the presence of the witnesses. The Police also got prepared the other necessary papers i.e. sketch of the dead body (Ext.A-6), Police Form No. 13 (Ext.A-7), letter to Chief Medical Officer (Ext.A-8) and sample seal (Ext.A-10). The dead body of the deceased in a sealed condition was taken by Constable Rajendra Singh Negi (P.W.7) and Constable Ram Babu for postmortem examination. Dr. A.K. Rastogi (P.W.3) conducted the postmortem examination on 10.05.1996 at 1.15 p.m. and prepared autopsy report (Ext.A-4). The Medical Officer recorded the ante mortem injuries on the person of the deceased and opined that cause of death was shock and haemorrhage due to ante mortem 4 injuries caused by hard pointed object. Thereafter, the Investigating Officer further interrogated the other witnesses and prepared the site plan (Ext.A-12). However, after Sub Inspector Udai Veer Singh (who started the investigation) was transferred, the further investigation was taken up by Station House Officer V.K. Sharma (P.W.11). After completion of investigation charge sheet (Ext.A-21) was submitted against all the four accused for their trial in respect of offence punishable under Section 302 I.P.C.. (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., appears to have committed the case to the court of Sessions for trial. Learned Ist Additional Sessions Judge, Dehradun, after hearing the parties, on 27.09.1996, framed charge of offence punishable under Section 302 read with Section 34 of I.P.C. against three accused, namely, Rajendra Kumar alias Raju, Dalip, and Harish. All the three accused pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W.1 Narendra Kumar (complainant and eyewitness), P.W.2 Sunil Chand (another eyewitness), P.W.3 Dr. A.K. Rastogi (who conducted the post mortem examination on the dead body of the deceased), P.W.4 Kishan Lal (declared hostile), P.W.5 Pramod Kumar (in whose presence ‘SUA’ was recovered on the pointing out of accused Rajendra Kumar alias Raju), P.W.6 Smt. Mala Devi (third eyewitness), P.W.7 Constable Rajendra Singh Negi (in whose presence inquest report was prepared and who also took the dead body in sealed 5 condition for post mortem examination), P.W.8 Sub Inspector Udai Veer Singh (who started the investigation), P.W.9 Head Constable Sheel Gange (who prepared the check report (Ext.A-13) on the basis of the First Information Report lodged by the complainant), P.W.10 Sub Inspector Rajendra Prasad (who was a Head Constable at Police Station Dalanwala and made necessary entry in the General Diary at the Police Station), and P.W.11 Inspector V.K. Sharma (who completed the investigation and submitted the charge sheet against the accused). The oral and documentary evidence was put to the accused under Section 313 Cr.P.C. in respect of which they alleged the same to be false. However, no evidence in defence was adduced on their behalf. The trial court after hearing the parties on 11.02.1999 found the accused / appellants Rajendra Kumar alias Raju and Dalip guilty of charge of offence punishable under Section 302 read with Section 34 I.P.C.. The trial court did not found guilty the third accused Harish and acquitted him from the charge framed against him. After hearing on sentence on 12.02.1999, the trial court sentenced each of the convicts imprisonment for life and directed to pay fine of Rs.5,000/-, In default of payment of which the defaulter convict was directed to undergo further six months rigorous imprisonment. Aggrieved by said judgment and order dated 11.02.1999 / 12.02.1999, passed by Ist Additional Sessions Judge, Dehradun, in Sessions Trial No. 195 of 1996, the convicts, namely, Rajendra Kumar alias Raju and Dalip filed appeal before the Allahabad High Court on 22.02.1999, where it was admitted on 23.02.1999. The appeal is received 6 by this Court by transfer under Section 35 of U.P. Reorganisation Act, 2000 (Central Act 29 of 2000), for its disposal. (5) Before further discussions, we think it just and proper to mention here the ante mortem injuries found by Dr. A.K. Rastogi (P.W.3) at the time of postmortem examination, on the dead body of Surendra Kumar on 10.05.1996 and recorded in the autopsy report (Ext.A- 4), which read as under:- “(1) Punctured wounds 2 in number, 1cm apart size .5cm x .5cm x 12cm on left side of chest. 5 cm medial to left nipple. On opening, the wound is directed upwards and outwards. There is haematoma 6cm x 3cm along the track of wound. Left pleura is punctured. Thoracic cavity filled with 1.5 litre of blood. Left ventricle is found lacerated. Wound in left ventricle is cavity deep. (2) Punctured wounds 2 in number, 1 cm apart size .5cm x .5cm x 10cm on outer aspect of left side of chest. 4 cm lateral and 3 cm below left nipple. On opening, the wound is going upwards and 7 medially. Left lung is lacerated on its outer aspect. (3) Punctured wounds 2 in number, 1 cm apart size .5cm x .5 cm x 10cm on outer aspect of left side of abdomen, 8cm away from umblicus. On opening the wound, it is directed medially and backward. Peritoneum is punctured. (4) Punctured wound .5cm x .5 cm x 8cm, 1 cm apart (2 in number) on the back (lower) of right side 1 cm above posterio superior iliac spine of right hip bone. It is directed downward and medially. Peritoneum punctured.” (6) The Medical Officer (P.W.3) opined that the cause of death of the deceased was shock and haemorrhage due to ante mortem injuries caused by hard pointed object. The above quoted ante mortem injuries clearly establish that deceased had died homicidal death. Now the question before this Court is whether the prosecution has been able to prove that accused / appellants Rajendra Kumar alias Raju and Dalip, with common intention, committed murder of Surendra Kumar or not. 8 (7) P.W.1 Narendra Kumar narrating the prosecution story has stated that accused / appellants Rajendra Kumar, Dalip and other two accused Manish and Harish, are his real cousins, who live in House No. 24 Dilaram Bajar, Dehradun. He has further stated that they were living in separate portions of the same house. P.W.1 Narendra Kumar has further stated that Sunil (father of Rahul) and Surendra Kumar (deceased) are his real brothers. He has further stated that on 09.05.1996 at about 9 p.m. Rahul (son of Sunil) went to the house of accused Dalip and asked for sweets (Toffee). He (Dalip) declined to oblige Rahul and slapped him. On this Rahul started crying and came to Surendra (deceased). Then Surendra went to Dalip and asked as to why Rahul was slapped by him. On this, accused / appellant Dalip and Rajendra Kumar started hurling abuses at Surendra Kumar. It appears that the quarrel further went on and other two real brothers of the two accused / appellants also came there and caught Surendra while accused / appellants Rajendra and Dalip with a ‘SUA’ (a pointed object) inflicted injuries on the person of Surendra. Meanwhile, hearing the noise, according to this witness, he, his brother Sunil Kumar (P.W.2) and sister-in-law Smt. Mala Devi (P.W.6) reached there and saw the incident. P.W.1 Narendra Kumar has further stated that injured Surendra Kumar was taken to nearby private medical officer who declared him dead. On this, they brought back Surendra Kumar’s body in their house. The witness has further stated that then he immediately went to the Police Station Dalanwala, where he lodged First Information Report (Ext.A-1). 9 (8) The above statement of the complainant is not only corroborated by the medical evidence discussed above, but also supported by the statements of other two eyewitnesses, namely, P.W.2 Sunil Chand and P.W.6 Smt. Mala Devi. P.W.2 Sunil Chand has also narrated the same story as mentioned above. Apart from this, the prosecution story is further corroborated by a third eyewitness i.e. Smt. Mala Devi (P.W.6) who is wife of Sunil Chand. The testimony of the three eyewitnesses is natural and trustworthy. They have no reason to implicate the accused / appellants falsely in the case, as they had no enmity with them. Their presence at the place of incident cannot be doubted. (9) Learned counsel for the accused / appellants argued that all the three eyewitnesses are close relatives as such their testimony should not be believed, as they all are interested witnesses. Had it been a case of crime committed in the presence of other persons it could have been said that the prosecution has adduced evidence of only interested eyewitnesses, but in the present case the incident has taken in the house at about 9 p.m. as such in that circumstance it is only the inmates of the house who had an opportunity to see the incident. As such we do not find any reason to disbelieve the testimony of the three eyewitnesses, namely, Narendra Kumar (P.W.1), Sunil Chand (P.W.2) and Smt. Mala Devi (P.W.6). (10) The second argument advanced on behalf of accused / appellants is that it is not clear from the 10 First Information Report that what was the source of light in which the witnesses could see the incident. Here we think it pertinent to mention that it is not an incident of village or a jungle rather it is a case where the incident has taken place in a city like Dehradun. It has come in the statement of the witnesses that there was electric light at the time when the incident took place and the witnesses could see the incident in that light. Since, in a city it is a normal feature that there is electric light, therefore, it was not necessary for the complainant to mention in First Information Report, as to the source of light in which he could see the incident. (11) The third submission advanced on behalf of the accused / appellants is that the blood stained soil was not taken by the Police from the spot and as such there appears a reasonable doubt as to the truthfulness of the prosecution story. We are unable to accept the submission of learned counsel for the accused / appellants for the reason that it is a case of direct evidence where the eyewitnesses have narrated the incident. It is not a case of circumstantial evidence. Even if the Investigating Officer has not taken the blood stained soil, if any, it does not create any reasonable doubt in the truthfulness of the prosecution story. Apart from this, it is nobody’s case that the blood had spread on the ground. Blood stained clothes of the deceased have been taken into possession by the Investigating Officer and were sent to the Chemical Examiner. The Chemical Examiner’s report (Ext.A-2) shows that there was human blood in the clothes and 11 the human blood was also there in the ‘SUA’ (a pointed object) recovered on pointing out of accused Rajendra Kumar alias Raju. (12) Ms. Geeta Parihar, learned counsel for the appellants contended that no blood group is mentioned in the aforesaid report. With regard to it, it is sufficient to mention that Chemical Examiner’s report (Ext.A-2) shows that for the purposes of classification the stains were not fit. (13) Fourthly, it is argued on behalf of the appellants that the witnesses have reached at the spot after the incident and they had no opportunity to see it. On reassessment of the oral testimony adduced by the eyewitnesses, we found that the witnesses have not stated that they reached after the accused had fled from the scene but they reached after the quarrel started. It is pertinent to mention here that all the three witnesses have stated that before the actual commission of crime there had been exchange of words between the deceased and the accused. Since the witnesses and the accused were residents of the same house number, it could be understood that the witnesses had not taken any time in coming out of there rooms and as such could be able to see the incident. (14) Lastly, it has contended by the learned counsel for the accused / appellants that it is a case of grave and sudden provocation and as such even if the testimony of the eyewitnesses is accepted the case falls 12 in the category of culpable homicide not amounting to murder, and not murder. We fail to understand that how can it be said that there was grave and sudden provocation to the accused as all the three eyewitnesses have stated it was the accused / appellants who hurled abuses at the deceased who asked them to stop. As such, provocation if any was there it was to the deceased not to the accused / appellants. Therefore, we find no error of law or that of fact committed by the trial court. (15) For the reasons as discussed above, we do not find any force in this appeal, which is liable to be dismissed. The Appeal is dismissed. The Registry is directed to send copy of this judgment to the Superintendent of concerned Jail where the appellants are serving out sentence. Lower Court Record be sent back. (B.S. Verma, J.) (Prafulla C. Pant, J.) 01.10.2008 NS 13