IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 1522 of 2001 (Old No. 2222 of 1999) 1. Vichitra Singh S/o Tara Singh 2. Lakhveer Singh @ Lakhvinder (since deceased) S/o Karoda Singh Both R/o Village Ajitpur P.S. Kashipur, District Udham Singh Nagar ……….Appellant Versus State of U.P. (now State of Uttarakhand) …………Respondent Shri J.S. Virk, Advocate, present for the appellant. Shri S.S. Adhikari, A.G.A., present for the state. Hon’ble Prafulla C. Pant, J. Hon'ble Nirmal Yadav,J. Oral: Hon'ble Prafulla C. Pant, J. This appeal, preferred under section 374 of Code of Criminal Procedure, 1973 (for short Cr.P.C.), is directed against judgment and order dated 31.08.1999, passed by Sessions Judge, Nainital, in Sessions Trial No. 614 of 1995, whereby 2 said court has convicted accused/appellants Vichitra Singh, and Lakhveer Singh @ Lakhvinder under section 302 read with section 34 of Indian Penal Code, 1860 (for short I.P.C.), and sentenced each one of them to rigorous imprisonment for life and also directed to pay fine of ` 5,000/- 2. Heard learned counsel for the parties and perused the lower court record. 3. Prosecution story, in brief, is that P.W.1 Kulwant Kaur (complainant) lodged oral first information report (for short F.I.R.) at 8:00 a.m., at Police outpost ITI, within the limits of Police Station Kashipur. (Earlier Tehsil Kashipur was part of District Nainital). On the basis of said oral report crime no. 719 of 1994, was registered against accused/appellants Vichitra Singh, Lakhveer Singh @ Lakhvinder, and two others namely Gurdeep Singh and Gurdev Singh, relating to offence punishable under section 302 IPC. It is mentioned in the check report (Ex. A1) that Kulwant Kaur gave oral report that accused/appellant Vichitra Singh had enmity with his brother Sajjan Singh (deceased). Kulwant Kaur is widow of the deceased. On 04.10.1994, Sajjan Singh had gone with his son 3 Baldev Singh (P.W.3) aged 12 years in the field of paddy to irrigate the field. At about 7:00 a.m., Kulwant Kaur heard alarm raised by her son Baldev Singh, on which she alongwith P.W.2 Sukkha Singh (nephew of the complainant) ran to the spot and saw Vichitra Singh (accused/appellant), Lakhveer Singh @ Lakhvinder (since deceased), Gurdeep Singh, and Gurdev Singh (both acquitted) armed with sharp edged weapons assaulting her husband. She further told the police that her husband has been murdered, and his dead body is lying at the spot. P.W.6 Incharge Inspector Ram Singh, took over the investigation of the case. P.W.5 Sub- Inspector Umed Ali, went to the spot, took dead body of the Sajjan Singh, and prepared inquest report (Ex. A3) at about 9:00 a.m.. He further prepared sketch of the dead body (Ex. A5), police form no. 13 (Ex. A6), sample seal (Ex. A7), and letter to Chief Medical Officer (Ex. A4). The dead body was sent in a sealed condition for post mortem examination. P.W4 Dr. Shamim Ahmad, conducted post-mortem examination on the dead body of Sajjan Singh on the very day i.e. 04.10.1994, at about 4:30 p.m.. He recorded as many as 12 incised wounds as ante-mortem injuries in the autopsy report (Ex. A2). The Medical Officer opined that 4 deceased had died due to hemorrhage and shock as a result of ante-mortem injuries. The Investigating Officer appears to have inspected the spot prepared site plan (Ex. A11),and interrogated the witnesses. On completion of investigation, charge sheet (Ex. A13) was filed by the Investigating Officer against accused/appellants Vichitra Singh, Lakhveer Singh @ Lakhvinder, and two others namely Gurdeep Singh and Gurdev Singh for their trial in respect of charge of offence punishable under section 302 IPC. 4. The Additional Chief Judicial Magistrate, Kashipur, on receipt of the charge sheet, after giving necessary copies to the accused, as required under section 207 Cr.P.C., appears to have committed the case to the court of session for trial. Learned trial court on 30.05.1996, after hearing the parties, framed charge of offence punishable under section 302 read with section 34 IPC, against all the four accused namely Vichitra Singh, Lakhveer Singh @ Lakhvinder (since deceased), Gurdeep Singh, and Gurdev Singh to which they pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W.1 Kulwant Kaur (complainant and eye witness), P.W.2 Sukkha Singh (eye witness), P.W.3 Baldev Singh (minor son of the deceased who 5 is eye witness), P.W.4 Dr. Shamim Ahmad, (who conducted post-mortem examination), P.W.5 Sub- Inspector Umed Ali (who prepared inquest report and other necessary papers), P.W.6 Inspector Ram Singh,and P.W.7 Head Constable Dinesh Kumar Mishra(who prepared check report of the first information). Oral and documentary evidence was put to the accused under section 313 Cr.P.C., in reply to which they alleged that the evidence against them was false. They further pleaded that they have been falsely implicated due to enmity. However, no evidence in defence was adduced. The trial court after hearing the parties, found that charge as against accused Gurdeep Singh, and Gurdev Singh is not proved but the same is proved against accused/appellants Vichitra Singh and Lakhveer Singh @ Lakhvinder. After hearing on sentence,the trial court sentenced each of the convicts to imprisonment for life and directed to pay fine of ` 5,000/- in default of payment of which defaulter was required to undergo further rigorous imprisonment for a period of two years. Aggrieved by said judgment and order dated 31.08.1999, passed by Sessions Judge, Nainital, in Sessions Trial No. 614 of 1995, this appeal was filed before Allahabad High Court on 07.09.1999, where it was 6 admitted on 08.09.1999. The appeal is received by this Court under section 35 of U.P. Reorganization Act, 2000 (Central Act, 29 of 2000) for its disposal. 5. Before further discussion we think it just and proper to mention the ante-mortem injuries found on the body of Sajjan Singh (deceased) by P.W.4 Dr.Shamim Ahmad at the time of post-mortem examination. The 12 ante-mortem injuries mentioned in the autopsy report (Ex. A2) are reproduced below:- (i) Incised wound 6cmX1.5cmX muscle deep over right side front of chest 12cm above the right nipple. (ii) Incised wound 3cmX0.5cmX muscle deep on the front of right shoulder 6cm medial to shoulder tip. (iii) Incised wound 4cm X 2cmX muscle deep over outer surface of left forearm 10cm above the wrist joint. (iv) Incised wound 2cm X 0.5dmX muscle deep over left eye brow. (v) Incised wound 7cm X 2cm X scalp deep over left side fore head 4cm above injury no. 4. 7 (vi) Incised wound 1cm X 0.5cm X scalp deep 1cm lateral to injury no. 5. (vii) Incised wound 2.5cm X 0.5cm X muscle deep just above right eye brow. (viii) Incised wound 2cm X 0.5cm X muscle deep over fore head 5.5 cm above bridge of nose. (ix) Incised wound 8cm X 1.5cm cm X scalp deep just above injury no. 8 over head. (x) Incised wound 1cm X 0.5cm X muscle deep in front of right ear. (xi) Incised wound 14cm X 0.3cm X skin deep over left side back of chest. (xii) Incised wound 24cm X 10cm through and through in the neck 6cm below the chin at the level of 6th cervical vertebra which is cut in the middle and margins are sharp. All the underlying structures cut at this level separating the head from rest of body except in the posterior part of neck where head is attached from trunk by tags of skin. 8 The Medical Officer has opined that deceased has died of shock and hemorrhage as a result of ante-mortem injuries, the medical evidence mentioned above read with statement of P.W.4 Dr.Shamim Ahmad clearly establishes that the Sajjan Singh was murdered brutally on 04.10.1994. 6. Now, this Court has to see whether the charge as against accused/appellants Vichitra Singh,and Lakhveer Singh @ Lakhvinder that they with common intention, committed murder of Sajjan Singh is proved on the record or not. 7. P.W.2 Kulwant Kaur (widow of the deceased) has stated that accused/appellant Vichitra Singh is her real brother-in-law (DEVAR). She has further told that Lakhveer Singh @ Lakhvinder is cousin of Vichitra Singh. She further told the trial court that name of her father-in-law was Tara Singh, who had five sons namely Sajjan Singh (deceased). Vichitra Singh (appellant no. 1), Gajjan Singh, Balkar Singh, and Rajendra Singh. Out of them Balkar Singh had already died. According to this witness (P.W.1) her father-in-law partitioned his land in six equal shares, five of each to his sons and one for his wife (mother-in-law of the complainant). 9 She has further stated that accused Vichitra Singh was not happy with his share, and started harbouring enmity with the Sajjan Singh (deceased). P.W.1 Kulwant Kaur narrates that on 04.10.1994, at about 6:00 a.m., Sajjan Singh alongwith his minor son Baldev Singh had gone to irrigate his field. She states that she was at home, and P.W.2 Sukkha Singh (nephew of the complainant) came to meet her. It was 7:00 a.m., when complainant and her nephew proceeded towards the field to provide tea to Sajjan Singh, When they were 60-70 steps away from the field the two heard shrieks of P.W.3 Baldev Singh, (minor son of deceased). They rushed and saw that accused/appellant Vichitra Singh armed with sword, accused/appellant Lakhveer Singh armed with Kripan (sharp edged weapon) alongwith Gurdeep Singh, and Gurdev Singh assaulting the deceased. She further states that accused/appellants after killing Sajjan Singh fled away. According to this witness she went to police outpost ITI and reported the incident on the basis of which check report (Ex. A1) was prepared by the police. In her cross-examination this witness has stated that she has wrongly mentioned names of Gurdeep Singh and Gurdev Singh ans she could not identify them at the spot. 10 8. P.W.2 Sukkha Singh, nephew of the complainant has corroborated the prosecution story as narrated by P.W.1 Kulwant Kaur that on the day of incident he had gone to the house of his aunt (complainant), and when he alongwith complainant going towards the field they heard shrieks and saw that Sajjan Singh was being assaulted by Vichitra Singh, armed with sword, accused/appellant Lakhveer Singh, armed with Kripan,and other two armed with DATAR and BARCHI. This witness also at the end of his examination in chief says that Gurdeep Singh and Gurdev Singh were not among the assailants. This witness was got declared hostile by the prosecution. Though the witness is declared hostile as he did not support the prosecution story as against Gurdeep Singh and Gurdev Singh but his testimony as against the accused/appellant Vichitra Singh and Lakhveer Singh suffers from no infirmity or doubt. 9. P.W.3 Baldev Singh, minor son of the deceased is most natural and trust worthy witness, who was with the deceased at the time of incident. This boy has stated that on 04.10.1994, at about 6:00 a.m., he had gone with his father to irrigate the 11 paddy field. The witness has further stated that at about 7:00 a.m., accused/appellant Vichitra Singh, armed with sword ,and accused/appellant Lakhveer Singh@ Lakhvinder armed with Kripan alongwith two others came there and assaulted and killed his father Sajjan Singh. This witness was subjected to lengthy cross-examination but nothing came out which creates doubt in his testimony. 10. The ocular testimony given by the above three witnesses read with medical evidence given by P.W.4 Dr.Shamim Ahmad, leaves no room of doubt that accused/appellant Vichitra Singh and Lakhveer Singh with common intention committed murder of Sajjan Singh on 04.10.1994. 11. Shri J.S. Virk, learned counsel for the appellant pointed out that deceased Sajjan Singh was involved in three criminal cases, and he might have been killed by anyone of his enemies. Had it been a case of circumstantial evidence probably argument advanced could have some substance. In the present case there are three eye witnesses of the incident, and even if the deceased had some criminal history, it creates no doubt as to the manner suggested by the prosecution in which the 12 deceased was killed by the accused/appellants. 12. It is also argued on behalf of the appellants that from the testimony of the three eye witnesses it is clear that they had falsely implicated the two accused namely Gurdeep Singh,and Gurdev Singh as such it cannot be ruled out that they might have named the accused/appellants falsely due to enmity. We have carefully scrutinized the evidence on record, and we are of the view that the principle 'uno falsus uno omnibus' is not applicable in India. Merely on the ground that in respect of two accused Gurdeep Singh, and Gurdev Singh, the witnesses did not support the prosecution story, it cannot be said that they are lying as against accused/appellants Vichitra Singh and Lakhveer Singh. The evidence as agaisnt the accused/appellant is consistent, natural, and trust worthy. Also there was no motive on the part of the Gurdeep Singh, and Gurdev Singh to commit the murder of Sajjan Singh, 13. Having considered submissions of learned counsel for the parties, and after going through the entire evidence on record, we concur with the view taken by the trial court that the prosecution has 13 clearly proved charge of offence punishable under section 302 read with section 34 IPC against the accused/appellants Vichitra Singh and Lakhveer Singh @ Lakhvinder. Therefore, the appeal of accused/appellant Vichitra Singh is liable to be dismissed. The same is dismissed. Conviction and sentence recorded against accused/appellant Vichitra Singh by the trial court in respect of charge of offence punishable under section302 read with section 34 IPC is affirmed. Appeal of accused/appellant Lakhveer Singh @ Lakhvinder stands abated due to his death during the pendency of this appeal. The accused/appellant Vichitra Singh is on bail. His bail is cancelled. He shall surrender before the trial court to serve out the sentence awarded against him. Let the copy of this judgment be sent alongwith lower court record, to the trial court. (Nirmal Yadav, J.) (Prafulla C.Pant,J.) 05.10.2010 Parul