RESERVED IN THE HIGH COURT OF UTTARANCHAL AT NAIITAL Criminal Appeal No. 1767 of 2001. CRIMINAL SIDE: Parameter Singh alias Pamma, Son of Sri Har Dayal Singh, R/o Matkay Wali Gali, Rudrapur, District Udham Singh Nagar. ……. Appellant Versus State of Uttaranchal ……… Opposite Party Mr. P.M.N. Singh, learned counsel for the appellant. Mr. A Rab, Addl. Government Advocate for the State. Hon. M.M. Ghildiyal, J. Hon. Rajesh Tandon, J. (Delivered by Hon’ble Tandon, J.) By the present Criminal Appeal the appellant has challenged the sentence awarded by the Sessions Judge, Udham Singh Nagar, Rudrapur dated 9th August 2001 under section 302 IPC as well as under section 307 IPC. The appellant was sentenced life imprisonment under section 302 IPC. and ten years rigorous imprisonment under section 307 IPC. The Sessions Judge has also imposed a fine of Rs.10,000/- failing which the appellants has to undergo another three years rigorous imprisonment. Brief facts giving rise to the present Appeal are:- The complainant Sri Ajeet Singh on 27th April 2000 has lodged a First Information Report at about 6:40 P.M. at P.S. Rudrapur stating therein that his grandfather Shri Har Dayal Singh had five sons and his grand father gave the shares to Gopal Singh, Jogender Singh and Mahinder Singh in the property. In the FIR it has further been stated that his father and uncle Paramjeet Singh alias Pamma had not been given their shares. It was stated that complainant’s uncle Paramjeet Singh alias Pamma sold the plot of Kalyani New, Rudrapur by fraud. It was further stated that on 27th April 2000 the complainant’s grandfather namely Shri Har Dayal Singh had executed the Power of Attorney regarding Matkay Wali Gali residential home in favour of his father namely, Shri Inderjeet Singh. On the said execution Paramjeet Singh alias Pamma abused words and threatened his father. In the FIR it has further been mentioned that on 27th April 2000 at about 5:45 P.M. the complainants Ajeet Singh his father Inderjeet Singh, his brother Surender Singh, Sharanjeet Singh, Baljeet Singh, Satwant Singh and Gurmeet Singh went to leave his grandfather at his residential house i.e. Matkay Wali Gali. It was stated that when they were coming down from the car, Paramjeet Singh alias Pamma and his 2-3 companions were standing therein. Paramjeet Singh had started firing with an intention to kill them due to which complainant’s father and brothers Surender Singh, Sharanjeet Singh, Baljeet Singh and grandfather Har Dayal Singh got injuries. As a result of the aforesaid firing complaint’s father namely Shri Inderjeet Singh his brothers Surender Singh and Sharanjeet Singh died. Baljeet Singh got injury on his face and his grandfather Har Dayal Singh also got injuries by gunshot. FIR further revealed that after hearing the noise of gunshot Harpal Singh, Rajender Kumar came there and saw the incident. Some people went to the hospital alongwith complainant’s father and brothers. As per written report Ex. Ka 1, the FIR was lodged at P.S. Rudrapur as Ex. Ka. 6. The entry of the case lodging was mentioned in G.D. the carbon copy of which is Ex. Ka. 30. Investigating Officer has prepared the report of blood stained mud and simple mud, report of recovery of empty cartridges and turban and goggles which are marked Ex. Ka. 2, Ka. 3 & Ka. 4 respectively. The Panchayatnamas were also prepared with regard to dead bodies of corpses of Inderjeet Singh, Surender Singh and Sharanjeet Singh marked as Ex. Ka. 15, Ka 18 & Ka 23. On 28th April 2000 postmortem of Sharanjeet Singh, Surender Singh and Inderjeet Singh were made in Base Hospital, Haldwani, Postmorterm reports are marked as Ex. Ka. 27, Ka. 28 & Ka. 29 respectively. The Postmorterm report of Sharanjeet Singh (Ex. Ka. 27) reads as under:- 1. Lacerated wound 1 cm x 1 cm circular, Margins inverted over forehead in between eyebrows. 2. Lacerated wound 1cm x 1cm right side chest, 6 cm above right nipple. 3. Lacerated wound 1cm x 1cm right side of lower abdomen 6 cm lateral to unblicus, circular, margins inverted. 4. Lacerated wound 1cm x 1cm over right shoulder, margins inverted, circular. 5. Multiple firearm injuries measuring 1cm x 1cm in an area of 12 cm x 16 cm over middle of back, margins inverted cavity deep, pellets and plastic cork recovered from cavity (wound of entering). The Postmortem report of Surender Singh (Ex. Ka. 28) reads as under:- 1. Lacerated wound 12 cm x 14 cm right side abdomen 6 cm above and lateral to unblicus and 10 cm below right nipple, margins crushed and multiple firearm injuries measuring 1 cm x 1 cm around the lacerated wound, margins inverted, muscle deep 2. Multiple lacerated wounds measuring 1 cm x 1 cm over left chest around nipple some are cavity deep and some skin deep 3. Lacerated wound 10 cm x 6 cm left abdomen lateral side. The Postmorterm report of Inderjeet Singh (Ex. Ka. 29) reads as under:- 1. Lacerated wound 1 cm x 1.5 cm left side chest oval in shape, margins inverted 6 cm above left nipple, cavity deep 2. Two circular lacerated wound right side chest 6 cm below right nipple, skin deep, margins inverted 3. Three lacerated wound in an area of 8 cm x 6 cm over right shoulder joint, skin deep, margins inverted 4. Lacerated wound 1 cm x 1 cm circular in shape over right lower abdomen 6 cm lateral to unblicus 5. Lacerated wound 3 cm x 3.5 cm oval in shape margins everted and irregular over back of chest, left side, track corresponding to injury No. 1, injury No. 5 is wound of exit. R.M. present both upper and lower limbs. Similarly, Har Dayal Singh, Ajeet Singh and Baljeet Singh were also got medically examined reports of which are Ex. Ka. 36, Ka. 37 & Ka. 38 respectively. The medical examination report of Shri Har Dayal Singh (Ex. Ka. 36) is as under: i) Punctured wound 4 mm x 4 round in the left side of temporal area 3 cm above the left extended ear. Bleeding. X-ray advised. ii) Punctured wound ½ com x ½ cm round with lavel of Ist therocic vertibra. Bleeding. X-ray advised. iii) Punctured wound ½ cm x ½ cm on left scapulo. Bleeding. X-ray advised. The medical examination report of Shri Ajeet Singh (Ex. Ka. 37) is as under: i) Lacerated wound of .3 cm x .3 cm on the back side of right hand, skin deep. Oozing of blood present. ii) Multiple firearm wound of entry size .3 x .3cm in the area of 18 cm x 9 cm on middle part of the left thigh snaut and outer side. Black coloured. Jean pant is also torned on the same places. Margins are charred and indication is present around them. Advised X-ray of left thigh. iii) Multiple firearm wound of entry on the medial and anterior aspect of right thigh, some part is also torn on the same places over the injuries. Margins are charred and indication is present around them. Oozing of blood also present size 13 cm x .3 cm. Advised X-ray of the right thigh. iv) No other external injuries seen. The medical examination report of Shri Baljeet Singh (Ex. Ka. 38 ) is as under: i) Lacerated wound over the right side of face and neck involving the lower jaw and right angle of lip and tongue. ii) Excessive bleeding through the wound iii) Irregular margin defect in the skin ent. iv) Boney pieces of mandible v) Right lower palpable throught the wound. On 4th May 2000, Investigating Officer has submitted the enquiry report of accused Paramjeet Singh alias Pamma that his fingerprints were found on his gun No. 17466-96. The gun was recovered from an Arms Dealer of Rampur and has been marked as Ex. Ka. 39. Recovered gun and bullets were sent to Forensic Science Laboratory Agra for investigation and the report has been submitted as Ex. Ka. 46. The report of Forensic Science Laboratory, Agra submitted as Ex. Ka. 46 is as under: 1) fookfnr dkjrwl bZlh&1] 12 cksj Mhchch,y xu u0 17466 fpfUgr 1@2001 dh ck;ha uky }kjk pyk;k x;k gSA 2) fookfnr dkjrwl bZlh&2] o bZlh&3] 12 cksj Mhchch,y xu u0 17466 fpfUgr 1@2001 dh nk;ha uky }kjk pyk;k x;k gSA Samples of blood and soil which were collected from the spot i.e. at the place of incident and the report received from the Forensic Science Laboratory Agra was marked as Ex. Ka. 47. Map of the recovery site has also been prepared and has been marked as Ex. Ka. 45. During the investigation, Investigating Officer had taken the statements of witnesses under section 161 IPC and also made the map of place of incident (the same was marked as Ex. Ka. 26) after the completion of the investigation the charge-sheet was framed against the accused Paramjeet Singh alias Pamma under section 302 / 307 IPC. To prove the charges against the accused persons eight witnesses were examined the names are as under: 1. Ajeet Singh P.W. 1 (injured) 2. Baljeet Singh P.W. 2 (injured) 3. Gurmeet Singh P.W. 3 4. Satwant Singh P.W. 4 5. Rajender Kumar P.W. 5 6. Harpal Singh P.W. 6 7. Hira Lal P.W. 7 8. Rajan Tyagi I.O.(Inspector) P.W. 8 The statement of the accused was recorded under section 313 Cr.P.C. who has denied his participation and has stated that his finger prints was found from the gun which was deposited at Rampur’s dealers. It was alleged that the Police has made a fraud case and the report of the Investigation and the witnesses of Police speaks lie and no evidence was produced from the accused. The learned Sessions Judge has given the following circumstances while sentencing the accused. The first circumstance was about the motive that the accused had motive and reason for committing the offence and murder. The second circumstance was the recovery of 12 bore licensee gun (Ex. 6) of the accused on the information and the statement made by the accused and the three empty cartridges of 12 bore gun which were found at the place of incident clearly indicating that the bullets were fired by the 12 bore licensee gun of the accused at the time of incident and that the gun was in the possession of the accused himself and not in possession of anybody else on the day of incident. The third circumstance was with regard to the compromise that after this incident, a compromise was made between accused and others in which it was decided that the accuse should be apologize for that. The fourth circumstance was with regard to absconding of the accused. The counsel for the appellant Mr. P.M.N. Singh vehemently argued that the conviction is likely to be vitiated, as there was no direct evidence available on the record. He has further stated that the FIR was ante dated. He has stated that the learned Sessions Judge has relied upon the motive between the parties but sine the said question was not asked during the proceedings u/s 313 of the Code of Criminal Procedure, therefore, the entire prosecution story was liable to be vitiated. The counsel for the appellant has also filed the application for additional evidences u/s 391 of the Cr. P.C. The contents of the additional evidences referred to in the application is as under: (1) A certified copy of the complaint filed by Hardayal Singh S/o Tara Singh, the father of the appellant, against Inderjeet Sinhg S/o Hardayal Singh, Surendra Singh S/o Hardayal Singh, Sharanjeet Singh S/o Hardayal Singh and 4 others in the court of Munsif Magistrate Rudrapur, Distt. Nainital and registered as Criminal Case No. 1060/91 under section 147, 148, 452, 323 504, 506 I.P.C. (2) A certified copy of the complaint filed by Inderjeet Singh S/o Hardayal Singh against Hardayal Singh S/o Tara Singh and 6 others in the court of Munsif Magistrate Rudrapur, Nainital under section 147, 323, 504, 506, 392 I.P.C. and registered as Criminal Case No.392/95. (3) A Photostat copy of the affidavit of Hardayal Singh S/o Tara Singh dated 15.05.2000. The counsel for the appellant had argued on the following points with regard to additional evidences:- (i) that the certified copies of complaint of the Criminal Case No. 1060/91 and Criminal Case No. 392/95 shows that there was dispute of property between the three deceased persons and Hardayal Singh, the injured witness, and they were litigating and there were frequent criminal incidents disputes among them. The appellant was not at all concerned with the dispute of the property or any other criminal incident due to legacy of Hardayal Singh. (ii) that the Photostat copy of the affidavit of Hardayal Singh dated 15.05.2000 shows that Hardayal Singh S/o Tara Singh had deposed before the Sessions Judge Udham Singh Nagar that the appellant was not the assailant. A reply has been filed by the prosecution against this application which reads as under:- 1. That the application moved by the appellant is at a belated stage and is not maintainable as during the trial the appellant has ample opportunity to file the present application before learned Sessions Judge. 2. That the contents of certified copy for the criminal complaint No. 1060 of 1991 and certified copy of the criminal case No. 392 of 1995 are not relevant at this stage, which amounts to taking a new plea for his defence. The photocopy annexed with the affidavit is a got-up evidence, which is not likely to assist this Hon’ble Court in the disposal of the present appeal, and the same is against the provisions of Indian Evidence Act. 3. That the incident / facts shown in the complaint case mentioned in the certified copies filed by the petitioner has no relevance on facts of the incident, which took place on 27.04.2000 and Hardayal Singh had received injuries in the said incident. The veracity of the statement under section 161 Cr.P.C. during the trial has been judged in the proper perspective by the learned Sessions Judge, therefore, the prayed by the appellant is misconceived. 4. It is, therefore, most respectfully prayed that this application may pleased be dismissed being not maintainable under the circumstances of the appeal. We find none of the contents of the above application which can be admitted as additional evidences as the documents are not concerning any subsequent events but are only narration of the entire story and as such we find no substance in admitting them as additional evidences. So far as panchayatnama is concerned the counsel for appellant has stated that the same cannot be relied upon in absence of the person in whose favour the decision was taken. The counsel for the appellant has also challenged the report of the Ballistic Expert on account of some discrepancy in the report. Coming to the FIR the same has been lodged on 27th April 2000. Time has been mentioned as 18:40 (6:40). The FIR was lodged by Sri Ajeet Singh, S/o Inderjeet Singh. The FIR shows as under:- lsok esa] Jheku~ dksroky lkfgc] dksrokyh :nziqjA egksn;] fuosnu gS fd eS vthr flag] iq= bUnzthr flag] eksgYyk dY;k.kh O;w fudV dapu rkjk gksVy dLck o Fkkuk :nziqj dk djus okyk gwWa esjs nknk th gjn;ky flag ds ikap yMds gSa ¼1½ l0 bUnzthr flag ¼2½ l0 xksiky flag ¼3½ l0 tksxsUnz flag ¼4½ l0 egsUnz flag ¼5½ ljnkj ijethr flag gSaA esjs nknk th us esjs rhu pkpk l0 xksiky flag] l0 tksxsUnz flag] l0 egsUnz flag dks viuh tk;nkn esa ls fgLlk ns fn;k Fkk esjs firk o pkpk ijethr flag dks tk;nkn esa fgLlk ugha fn;k Fkk esjs pkpk ijethr us dY;k.kh O;w :nziqj okyk IykV QthZ rjhds ls fcuk esjs nknk dks fcuk crk;s] Mk0 vorkj flag fxy dks csp fn;k vkt ekywekr gksus ij esjs nknk th us viuk fjgk;”kh edku tks eVds okyh xyh :nziqj esa gS mldk eq[r;kjs vke o olh;r djkus dks esjs firk o eq>s ysdj vkt fdPNk jthLVªjh vkfQl esa x;s FksA jthLVªh vkfQl esa esjs nknk th us edku dk eq[r;kj vke esjs firk th ds uke dj fn;k Fkk fd ogh ij ijethr flag mQZ iEek vk x;k mlus ogka ij esjs firk th o nknk th dks xkfy;ka nh] /kDds ekjs o ogka ij /kedh nsrk gqvk pyk x;k] blds ckn ge yksx le; djhc ikSus N% cts mudks gekjs nknk th dks NksM+us muds fjgk;’kh edku eVds okyh xyh esa muds lkFk x;s Fks gekjs lkFk eSa o esjs firk th] l0 bUnzthr flag rFkk esjs HkkbZ l0 lqjsUnz flag] l0 'kj.kthr flag] l0 cythr flag rFkk l0 lroar flag iq= ljnkj Hkxoku flag fuoklh eYlk] xq:ehr iq= Jh Hkxoku nkl fuoklh nfj;kuxj Hkh FksA tc ge yksx viuh dkj ls mrj dj ?kj ds vUnj tk jgs Fks rks esjk pkpk ijethr flag mQZ iEek rFkk mlds lkFk nks&rhu vkneh vkSj esjs pkpk tks fd viuh dkj esa xq:}kjs ds uhps ?kj ds lkeus ?kkr yxk;s cSBs Fks rFkk gekjs ?kj dh rjQ pyrs gh esjs pkpk ijethr us viuh ek:rh oSu ls mrj dj viuh cUnwd ls ge yksxksa ds mij tku ls ekjus dh fu;r ls Qk;fjax djuh 'kq: dj nh ftldh xksyh esjs firk o esjs Hkkb;ksa l0 lqjsUnz flag] l0 'kj.kthr flag] cythr flag rFkk esjs nknk l0 gjn;ky flag vkSj esjs yxh xksyh yxus ls yxkrkj gh esjs firk l0 bUnzthr flag HkkbZ lqjsUnz flag o 'kj.kthr flag dks ekSds ij gh ekSr gks xbZ rFkk esjs HkkbZ cythr flag ds eqag ij xksyh yxh rFkk esjs o nknk th ds Nj~js yxs gSaA Qk;fjax ds 'kksj ij ogka ls xqtj jgs l0 gjiky flag iq= xqjcD’k flag fuoklh feYkd o jktsUnz dqekj iq= Jh jke jD[kk fuoklh eYlk fxj/kjiqj ftyk m/keflag uxj o vU; dbZ yksx ekSds ij vk x, ftUgksus ;g okD;k ns[kk xksyh ekjus ds ckn ijethr o mlds nks rhu lkFkh ftUgs ge lkeus vkus ij igpku ldrs gSa gokbZ Qk;j djrs gq;s rFkk yksxksa dks tku dh /kedh nsrs gq;s viuh ek:rh oSu ij cSB dj pys x;s A bl ?kVuk Lks vkLk ikLk ds nqdkunkjksa o yksxksa esa HkxnM+ ep xÃ Hk; O;kIr gks x;k o fnu ngkMsa+ lkoZtfud LFkku ij gqÃ bl ?kVuk ls vke yksxksa esa ng’kr gks xÃ nqdkunkjksa us nqdkus cUn dj nh rFkk vkus tkus okys yksxksa esa HkxnM+ ep xÃ esjs firk o Hkkb;ksa dh yk’k ysdj dkQh yksx vLirky ysdj igqap x;sA eq>s o esjs ifjokj ds vU; yksxks dh tku dk [krjk cuk gqvk gSA vr% Jheku~ th ls izkFkZuk gS fd esjh fjiksZV ntZ dj dkuwuh dk;Zokgh djsa izkFkhZ vthr flag iq= l0 bUnzthr flag fuoklh dY;k.kh O;w :nziqjA 27.4.2000 i) As will appear from the FIR that Shri Ajeet Singh has very clearly stated that his father Inderjeet Singh, Surendra Singh and Shranjeet Singh died on the spot. ii) His brother Baljeet Singh and grandfather were injured as a result of the aforesaid firing. iii) The FIR further shows that the uncle of Ajeet Singh came from Maruti Van and had fired from his gun in order to kill the family members. iv) On the top of the FIR there is a mention that the grand- father of Ajeet Singh has given the share to his three uncles, namely Gopal Singh, Jogender Singh and Mahendra Singh from his property. But no share was given to Inderjeet Singh and Paramjeet Singh, father and uncle of Ajeet Singh. v) Paramjeet Singh alias Pama, uncle of Ajeet Singh has sold the plot of Rudrapur without conveying to the grandfather of Ajeet Singh. vi) The grandfather of Ajeet Singh went to the Registry office for executing the will along with Ajeet Singh and his father Inderjeet Singh and ultimately the grand- father has executed ‘Muktarnama’ in favour of the father of Ajeet Singh, namely Inderjeet Singh. vii) Paramjeet Singh alias Pamma came on the spot and abused the grandfather of Ajeet Singh. viii) The quarrel started from the moment as will appear from the motive that Paramjeet Singh abused the father of Ajeet Singh and his grandfather and therefore while entering in the house by the Maruti car his uncle Paramjeet Singh alias Pamma fired on the family of Ajeet Singh. The narration in the FIR aforesaid clearly indicates that there was a family dispute amongst the heirs of the grandfather of Ajeet Singh and that Paramjeet Singh alias Pamma had seen the Power of Attorney being executed, abused the grandfather of Ajeet Singh and ultimately fired from his licensee gun with an intention to kill all of them. Coming to the statement of Ajeet Singh, PW 1. PW 1 has stated in his statement that the FIR (Ex. Ka 1) was lodged by him. The cross examination of Ajeet Singh Shows as under:- ;g dguk xyr gS fd eS gkftj vnkyr vfHk;qDr ijethr mQZ iEek tks fd esjs pkpk yxrs gS] jkthukek gks tkus ds dkj.k xyr c;kuh dj cpk dgk gwW] ;g Hkh dguk xyr gS fd izn’kZ ds&1 fjiksVZ eSusa Loa; ekSds ij mifLFkr gksus ,ao ?kVuk dks ns[kus ds dkj.k rgjhj ds vuqlkj fy[kkbZ Fkh vkSj vc eS jkthukek gks tkus ds dkj.k rgjhj dh bckjr dks ykxks }kjk crk;k tkuk c;ku dj jgk gwWa] ;g lgh gS fd esjk MkDVjh ewvk;uk gqvk Fkk] ;g dguk xyr gS fd ijethr mQZ iEek us eq>s cythr o gjn;ky dks tku ls ekjus dh fu;r ls cUnwd dh pksV igWqpk;hA Further, so far as the compromise is concerned the same was admitted by Ajeet Singh. The same is quoted below:- ;g lgh gS fd gkftj vnkyr vfHk;qDr ls jkthukek gks x;k gS eqfYte ijethr flag mQZ iEek esjk pkpk yxrk gSA izn’kZ d&1 rgjhj eSusa vius gkFk ls fy[kh A ;g lgh gS fd izn’kZ d&1 esa eSusa viuh p’enhn xokgh ekStwnxh vfHk;qDr }kjk bUnzthr flag] 'kj.kthr flag o lqjsUnz flag dh gR;k ds le; ekSds ij fy[kkbZ gS vius vki dh p’enhn eSaua ogka bdV~Bh HkhM+ ds crkus ij fn[kkbZ gS A ysfdu okLro esa eSusa [kqn eqfYte ijethr flag dks Qk;j djrs ekSds ij ugha ns[kk FkkA The PW 2, Baljeet Singh who is an injured witness has stated as under:- gekjh tehu tk;nkn lEcU/kh fookn gkftj vnkyr eqfYte ls py jgk Fkk A oSu ls mrjus okys vkSj Qk;j dj gR;kjs dks eS ugha igpku ldkA gkftj vnkyr vfHk;qDr ijethr flag mQZ iEek us mijksDr rhuks gR;k;sa ,oa geas pksV ugha igqWpk;h A eS gR;k djus okyksa dks ugh igpku ldkA ;g lgh gS fd gkftj vnkyr eqfYte ijethr flag mQZ iEek tks fd esjk pkpk gS ftlls esjk jkthukek gks x;k gS A ysfdu ;g dguk xyr gS fd bl jkthukesa dh otg ls eS xyr c;kuh dj vfHk;qDr dks cpk jgk gWwA The PW3, Gurmeet Singh has stated as under:- ;g dguk lgh gS fd eqfYte esjk ekSlsjk HkkbZ gSA vkSj ge yksxks dk iapk;r esa jkthukek gks x;k gSA ;g dguk xyr gS fd bl jkthukesa dh otg ls eS xyr c;ku dj mls cpk jgk gwWA The PW4, Satwant Singh has stated as under:- e`rd ljnkj bUnzthr flag dk eS fj’rsnkj gwW] gekjh iapk;r esa cSBdj jkthukek gks x;k gS] iapk;r us iEek vfHk;qDr gks ekQ dj fn;k gSA ;g dguk xyr gS fd blh jkthukesa dh otg ls eS xyr c;kuh dj eqfYte iEek dks cpk jgk gWw] ;g dguk xyr gS fd gkftj vnkyr vfHk;qDr us gh gR;k dh gks vkSj blh us pksVs igWqpk;h gksA There is a clear admission that the double barrel gun No. 17466-96 was recovered from Rampur and the recovery memo was prepared which is a part of the record as Ex. Ka. 39. The accused has admitted that the gun was deposited by him. In the end the question asked was, what you have to say in your defence and it has been frankly stated by the accused that he has nothing to say. No more evidence was laid with regard to the motive or any other part in spite of the direct