Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 62 of 2005 Bhagwan Singh ...…………. Appellant versus State of Uttarakhand ...…………. Respondent along with Criminal Appeal No. 59 of 2005 M ahesh Singh ...…………. Appellant versus State of Uttarakhand ...…………. Respondent and Criminal Appeal No. 60 of 2005 P awan Singh alias Guddu ...…………. Appellant Versus State of Uttarakhand ...…………. Respondent 2 Mr. R.S. Sammal, Advocate with Mr. Prem Kaushal, Advocate for the appellants. Mr. Amit Bhatt, Addl. Government Advocate, for the State. JUDGMENT Coram : Hon’ble Barin Ghosh, C. J. Hon’ble U.C. Dhyani, J. Per: U.C. Dhyani, J. These three criminal appeals are directed against the same judgment and order dated 05.04.2005 passed by Addl. Sessions Judge / II F.T.C., Udham Singh Nagar whereby accused appellant Pawan Singh alias Guddu has been convicted for the offence punishable under section 302 IPC; accused / appellants Bhagwan Singh and Mahesh Singh have been convicted for the offence punishable under Section 302 read with Section 34 of Indian Penal Code, 1860 in Sessions Trial No. 239 of 2003 and all the three accused have been sentenced to imprisonment for life and directed to pay a fine of Rs. 5,000/- each, in default of payment of which they are directed to undergo one year further imprisonment. Accused/appellants Bhagwan Singh and Mahesh Singh have also been convicted under Section 307 and sentenced to rigorous imprisonment for a period of five years and directed to pay a fine of `2,000/- each, in default of payment of which they are directed to undergo six months further imprisonment. Accused / appellant Pawan Singh alias Guddu has also been convicted under Section 307 read with Section 34 of I.P.C. and was sentenced to rigorous imprisonment for a period of five years and directed to pay a fine of `2,000/, in 3 default of payment of which he is directed to undergo six months further imprisonment. All the three accused / appellants have also been convicted under Section 427 of I.P.C. and were sentenced to rigorous imprisonment for a period of one year. Accused / appellant Pawan Singh alias Guddu is further convicted under Section 27 of the Arms Act (in Sessions Trial No. 240 of 2003) and sentenced to rigorous imprisonment for a period of three years. Accused / appellant Bhagwan Singh is further convicted under Section 30 of the Arms Act (in Sessions Trial No. 240 of 2003) and sentenced to rigorous imprisonment for a period of six months. All the sentences are directed to run concurrently by the trial court. 2. Prosecution story, in brief, is that P.W.1 Jaikishan lodged a first information report (Ext. Ka-1) with police station Sitarganj, District Udham Singh Nagar with the allegation that on 15.06.2003 at about 04:00 P.M., his neighbour Bhagwan Singh s/o Kanhai Singh armed with lathi along with Mahesh Singh s/o Dasiram armed with spade and Pawan Singh s/o Bhagwan Singh armed with licensed gun of his father, in an attempt to demolish their thatch and cowshed, came there. Thereafter Bhagwan Singh armed with lathi and Mahesh Singh armed with spade, started assaulting Dinesh Singh (brother of the informant) Balmukund and Sachin (both sons of Shyamlal) with the weapons they were carrying. When the informant along with Bhajan Singh s/o Dhan Singh and Gopal Singh s/o of Ramji Lal came ahead to intervene in the matter, suddenly Pawan Singh s/o Bhagwan Singh armed with gun in an attempt to kill them started firing 4 which hit Balmukund, Dinesh and Sachin s/o Balmukund. Balmukund succumbed to the injuries sustained by him on the spot. The informant (Jaikishan) after taking the injured Dinesh and Sachin to the hospital came to the police station and lodged the report. On the basis of said complaint, chick FIR (Ext. Ka-23) was prepared and Crime No. 221 of 2003 was registered against the accused Bhagwan Singh, Mahesh Singh and Pawan Singh in respect of offences punishable under Section 302, 307 / 34 of I.P.C. The licensed gun belonging to accused Bhawgan Singh was recovered by the police from the possession of accused Pawan Singh alias Guddu on 16.06.2003 at 05:30 P.M. from the house of accused Mahesh Singh r/o village Anjaniya, within the limits of police station Sitarganj, District Udham Singh Nagar. The police took the dead body in their possession, prepared inquest report (Ext. Ka-10) and other necessary papers and the dead body was sent in a sealed cover for postmortem examination. The postmortem examination was conducted by Dr. N.S. Bhatt (P.W.7) on 16.06.2003, at 12:30 P.M., who prepared autopsy report (Ext. Ka-8). The Medical Officer found one ante mortem gunshot injury on the body of the deceased and opined that Balmukund had died of shock and haemorrhage as a result of ante mortem injuries. Meanwhile, injuries on the person of Manglesh, Dinesh Singh and Sachin as well as the accused Mahesh Singh, who also received injuries, were examined by the three Medical Officers, viz., P.W.4 Dr. N. Chand, P.W.5 Dr. R.C. Sharma and P.W.6 Dr. V.S. Deopa, who recorded the same in Ext. Ka-3, Ext. Ka-4, Ext. Ka-6 and Ext. Ka-2, respectively. 5 3. Investigation of the case was taken up by P.W.10 S.I. B.R. Divakar. He inspected the spot, prepared site plan (Ext. Ka-13), Police Form No. 13 (Ext. Ka-12), memo of recovery of simple soil and bloodstained soil (Ext. Ka-15) and memo of recovery of two empty cartridges of 12 bore and a stick (Ext. Ka-16). Accused / appellant Pawan Singh alias Guddu was arrested on 16.06.2003 and on his disclosure a SBBL gun of 12 bore (Ext. I) used in the commission of crime was recovered. A memorandum of recovery (Ext. Ka-17) was got prepared in the presence of the witnesses. After completing the investigation, charge sheet (Ext. Ka-28) was filed against the accused / appellants Bhagwan Singh, Mahesh Singh and Pawan Singh alias Guddu, relating to offences punishable under Section 302, 307 / 34 and 427 of I.P.C. A separate crime relating to offences punishable under Section 25 / 27 / 30 of the Arms Act was registered after recovery of the SBBL gun of 12 bore, which was also investigated and a separate charge sheet (Ext. Ka-19) was filed against accused / appellants Bhagwan Singh and Pawan Singh alias Guddu after obtaining necessary sanction (Ext. Ka-18) from the District Magistrate, Udham Singh Nagar in respect of said offences. After interrogating the witnesses and on completion of investigation, the Investigating Officer submitted both the charge sheets (Ext. Ka-19 and Ext. K-28) against the accused Bhagwan Singh, Mahesh Singh and Pawan Singh alias Guddu for their trial in respect of offences punishable under Section 302, 307 / 34 and 427 of I.P.C. and one relating to offence punishable under Section 27 against Pawan Singh alias Guddu and section 30 of the Arms Act against accused Bhagwan Singh. The Investigating Officer also sent two 6 empty cartridges of 12 bore and one blood stained stick to Forensic Science Laboratory, Agra for examination. 4. The Magistrate, on receipt of both the charge sheets and after giving necessary copies to the accused, committed the case to the court of sessions for trial. Learned Addl. Sessions Judge / F.T.C. (First), Udham Singh Nagar, after hearing the parties on 24.08.2003, framed charge of offences punishable under Section 307, 302 read with Section 34 and 427 of I.P.C. against the accused Bhagwan Singh and Mahesh Singh. Charge in respect of offences punishable under Section 307 read with Section 34, 302 and 427 was framed against accused Pawan Singh alias Guddu. A separate charge was also framed against accused / appellant Bhagwan Singh under section 30 Arms Act and Pawan Singh alias Guddu in respect of offence punishable under Section 27 of the Arms Act. All of them pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W.1 Jaikishan (informant and eyewitness); P.W.2 Dinesh; P.W.3 Sachin (injured eyewitness); P.W.4 Dr. Naresh Chand (who recorded the injuries on the person of accused Mahesh); P.W.5 Dr. R.C. Sharma (who examined the injuries on the person of Manglesh); P.W.6 Dr. V.S. Deopa (who examined the injuries on the person of Dinesh Singh; P.W.7 Dr. N.S. Bhatt (who conducted the postmortem examination); P.W.8 Dr. M.S. Sharma (Radiologist); P.W.9 S.I. D.S. Verma (arresting officer); P.W.10 S.I. B.R. Divakar (who started the investigation); P.W.11 Constable Matloob Khan (member of the arresting party); P.W.12 S.I. Ashok Kumar (who investigated the crime relating to Arms Act); P.W.13 Dr. J.P. 7 Bhatt; P.W.14 Inspector Rajeev Kumar (who submitted charge sheet (Ext. Ka-19) and P.W.15 Pradeep Kumar Pant (Village Panchayat Development Officer). In defence D.W.1. Ashok Kumar was examined. The oral and documentary evidence was put to the accused under Section 313 of Cr.P.C., in reply to which they alleged that the evidence adduced against them are false. The trial court found accused / appellants Bhagwan Singh & Mahesh Singh guilty of charge of offences punishable under Section 302 IPC read with Section 34 IPC, 307 / 34 and 427 of I.P.C. and accused –appellant Pawan Singh alias Guddu was found guilty of charge punishable under Section 302 IPC and one relating to offence punishable under Section 27 of Arms Act. Accused-appellant Bhagwan Singh was convicted for the offence punishable under Section 30 Arms Act. After hearing the parties on sentence, each one of the convicts was sentenced to imprisonment for life and directed to pay fine of Rs. 5,000/- under Section 302 read with Section 34 of I.P.C (accused Pawan Singh under section 302 IPC). Convicts Bhagwan Singh and Mahesh Singh were also sentenced to rigorous imprisonment for a period of five years and directed to pay fine of Rs. 2,000/- under Section 307. Convict Pawan Singh alias Guddu was further sentenced to rigorous imprisonment for a period of five years and directed to pay fine of 2000/- under Section 307 read with Section 34 of I.P.C. Each one of the convicts was sentenced to rigorous imprisonment for a period of one year under Section 427 of I.P.C. As to the offence punishable under Section 27 of Arms Act, convict Pawan Singh alias Guddu was further sentenced to rigorous imprisonment for a period of three 8 years and convict Bhagwan Singh was sentenced to rigorous imprisonment for a period of six months under Section 30 of the Arms Act. Aggrieved by said judgment and order dated 05.04.2005, present criminal appeals have been filed by the convicts separately. 5. It will be worthwhile to take up the ante mortem injuries first which have been recorded by P.W.7 Dr. N.S. Bhatt, who prepared autopsy report after postmortem examination on dead body of Balmukund on 16.06.2003, at 12:30 P.M. The ante mortem injuries recorded in autopsy report (Ext. Ka-8) are being reproduced below:- i) A rounded lacerated wound on right anterior chest over III IV V internal spine lateral to Sternum measuring 4 cm x 4 cm. And small rounded lacerated wound around injury no. (i) on count (38) in number, measuring 0.2 cm X 0.2 cm in an area of 9 cm x 8 cm. On exploration the castorandal bone adjacent to sternum III IV & V lost. On further exploration lacerated wounds present over right lung which remained 1/4 of its size, blood found in the chest cavity, right atrium of heart lacerated, both chambers empty. ii) On search in the pool of blood on counting seven pellets found, kept in a sealed state. The Medical Officer (P.W.7 Dr. N.S. Bhatt) has opined in the autopsy report that the cause of death is due to shock and haemorrhage as a result of ante mortem injuries. 6. P.W. 1 Jaikishan has stated in his examination-in- chief that he knew accused Bhagwan Singh, Mahesh Singh and Pawan Singh who resided in his village. On 15.06.2003 9 at 4 p.m. accused Bhagwan Singh armed with a lathi, Mahesh Singh with a shovel/spade and Pawan Singh armed with licensed gun came to destroy the roof (Chhappar) of his Cowshed. When they were asked not to do it, then Bhagwan Singh and Mahesh Singh started inflicting blows of lathi and shovel on Dinesh Singh, Balmukund and Sachin. Jaikishan, Bhajan Singh and Gopal Singh tried to rescue them. At this Pawan Singh fired at Balmukund, Dinesh and Sachin resulting in death of Balmukund. Dinesh and Sachin sustained injuries. This witness has proved complaint (Ext. Ka-1). 7. PW 2 Dinesh has supported the prosecution story. He has corroborated the evidence of PW 1 Jai Kishan. He is one of the injured. 8. PW 3 Sachin has also supported the prosecution story and corroborated the oral testimony of the earlier two witnesses. He also sustained injuries in the incident. 9. PW. 4 Doctor Narendra Chandra, Medical Officer, PHC, Sitarganj was posted on 17.06.2003 in the same capacity at the same place. On that day he examined the injuries of accused Mahesh and has proved the injury report of Mahesh (Ext. Ka-2). 10. PW 5 Doctor R. C. Sharma, In charge Medical Officer, PHC, Sitarganj has medically examined Manglesh on 16.06.2003 at 12:30 pm and has proved his injury report (Ext. Ka-3). 10 11. PW 6 Doctor V.S.Deopa, Medical Lecturer and Demonstrator, Medical Training Centre had medically examined Dinesh on 15.06.2003 at 10:10 pm and has proved his medical report (Ext. Ka-4). He has also proved his X-ray report and supplementary report as Ext. Ka-5. On that day he also medically examined Sachin and has proved his medical report (Ext. Ka-6) along with X-ray report /supplementary report as Ext. Ka-7. 12. PW 7 Doctor N.S.Bhatt , Base Hospital, Haldwani has conducted post-mortem report on the body of Balmukund and found ante-mortem injuries. The Doctor has said that the cause of death of Balmukund was due to shock and haemorrage as a result of ante mortem injuries. He has also said that these ante-mortem injuries were caused on 15.06.2003 at 4:00 pm. This witness has proved the post- mortem of Balmukund (Ext. Ka-8). 13. PW 8 Doctor M.S. Sharma is Radiologist. He was posted on 16.06.2003 in Soban Singh Jeena Hospital, Haldwani as Radiologist. He has proved material Exts. 1 & 2. 14. PW 9 S.I. D.L.Verma was posted as SSI on 15.06.2003 at P.S. Sitarganj. A First Information Report was lodged for the offence punishable under sections 302, 307 read with section 34 IPC against the accused persons Bhagwan Singh, Mahesh Singh and Pawan Singh. He took the public witnesses Pheroo Singh alongwith Mahesh Singh and affected arrest of Pawan Singh alias Guddu who 11 confessed his guilt. On his disclosure and pointing, he recovered the licensed gun of Bhagwan Singh by which he had caused the death of Balmukund and fired at Dinesh and Sachin whereby they sustained serious injuries. He has proved recovery memo (Ext. Ka-9) and instituted case under the Arms Act and also proved gun as material Ext. 1. 15. PW 11 Constable Matloob is also a witness to the confession, disclosure, pointing out and recovery of gun of Pawan Singh. He has proved recovery memo of the incriminating article SBBL gun (Ext. Ka-17). 16. PW 12 SI Ashok Kumar Verma is the Investigation Officer of crime no. 222 of 2003 under sections 25/27 Arms Act and section 30 Arms Act. He has proved prosecution sanction (Ext. Ka-18) and Charge sheet (Ext. Ka- 19). The site plan (Ext. Ka-20) was prepared by SI B. R. Divakar. 17. PW 13 Doctor J.P. Bhatt was posted as Medical Officer on 16.06.2003 in Base Hospital, Haldwani. He had examined Sachin and Vineet Singh and has proved medical report of Sachin as Ext. Ka-21 and Vineet Singh as Ext. Ka-22. 18. PW 14 Rajeev Kumar, Inspector was posted on 15.06.2003 as Inspector, Kotwali Sitarganj. On that date crime no. 221 of 2003 under section 302, 307/34 IPC State vs. Bhagwan Singh and others was registered on the basis of complaint of Jaikishan. This witness has proved the First Information Report (Ext. Ka-23), entry in G.D. (Ext. Ka-24) 12 and autopsy report (Ext. Ka-25). He took the statements of Jaikishan, inspected the place of occurrence, prepared site plan (Ext. Ka-26), recovery memo of cartridge and stick {(danda) (Ext. Ka-16)}, took blood stained soil and simple soil and prepared memo (Ext. Ka-15). He also took the statements of witnesses, prepared site plan (Ext. Ka-27) and submitted charge-sheet (Ext. Ka-28). The Investigating Officer also obtained prosecution sanction from the District Magistrate and also proved the report of FSL (Forensic Science Laboratory). Initially the investigation was entrusted to S.I. D.L.Verma for a while. 19. PW 15 Pradeep Kumar Pant was posted as Gram Panchayat Development Officer since 12th November, 2003. This witness was examined on 28.02.2005 and had brought the original family register of the residents of village Dohara which contained the dates of births and deaths of the residents of said village. According to this register the date of birth of the accused Pawan Singh s/o Bhagwan Singh is 1984. He has proved the certified copy of the family register of Bhagwan Singh as Ext. Ka-29. In the cross-examination this witness as admitted that the register did not contain the date of birth of any resident of the village. 20. DW 1 Ashok Kumar Ahuja had brought the school register to show that the date of birth of Pawan Rana son of Bhagwan Singh, resident of village Dohara, Tehsil Sitarganj, District Udham Singh Nagar is 03.10.1985. In the cross-examination, DW 1 Ashok Kumar Ahuja has said that the entries in Ext. Kha-1 to Kha -5 were made on the basis of 13 oral information furnished by Bhagwan Singh who is father of Pawan Rana. When Pawan was admitted to class II he did not furnish any proof of passing class I. 21. If the evidence of DW 1 Ashok Kumar Ahuja is reckoned with, then accused Pawan Rana completed 18 years on 03.10.2003, as his date of birth was shown to be 03.10.1985. The incident has taken place on 15.06.2003. According to this calculation he is approx three months short of 18 years on the day the incident took place, but if his date of birth is reckoned in the year 1984, as per the statement of PW 15 Pradeep Kumar Pant then even if he is born on 31st December of that year, he would have completed 19 years on 31st December, 2003. By that reckoning he had crossed 18 years on the date when this incident took place. 22. The question arises whether the accused persons Bhagwan Singh, Mahesh Singh and Pawan Singh had killed Balmukund and used firearm, shovel and lathi in order to take away the lives of Dinesh, Manglesh and Sachin. The prosecution has produced PW 1 Jaikishan, PW 2 Dinesh and PW 3 Sachin in this context. 23. PW 1 Jai Kishan is the complainant. He has said that Bhagwan Singh, Mahesh Singh and Pawan Singh belong to the same village. On 15.06.2003 at 4:00 pm Bhagwan Singh was armed with lathi, Mahesh Singh armed with shovel and Pawan Singh had licensed gun. They came to the roof (chhappar) of their cowshed and started breaking it. Jaikishan (complainant), Dinesh, Balmukund and Sachin 14 refrained them from doing so. On this, Bhagwan Singh with lathi and Mahesh Singh with shovel started beating Jai Kishan, Dinesh and Balmukund. Gopal Singh and Bhajan Singh came to their rescue. When they dragged Balmukund to the northern side of the shop, accused Bhagwan Singh and Mahesh Singh told accused Pawan to shoot them. Pawan fired at Balmukund. The bullet hit Balmukund’s chest and he died instantly. Dinesh went forward to save him. Pawan fired the second bullet which hit Dinesh in the abdomen. The pellets hit Sachin and Manglesh who were working there. The information of this incident was given to the Police Station concerned. 24. PW 2 Dinesh has also supported the prosecution story. He has corroborated the evidence tendered by PW 1 Jaikishan. He has also said that on 15.06.2003 at 4:00 pm Bhagwan Singh armed with lathi, Mahesh Singh armed with shovel and Pawan Singh armed with licensed gun of his father, (they) started dislodging the animal shed. Dinesh (this witness), Balmukund, Sachin and Jaikishan asked them not to do so, Bhagwan Singh and Mahesh Singh started hitting him (Dinesh), Balmukund and Sachin with lathi and shovel. After this marpeet, Bhagwan Singh and Mahesh Singh caught hold of Balmukund and dragged him up to the shop. Bhagwan Singh and Mahesh Singh asked Pawan to fire at him. On this Pawan Singh hit the first bullet to Balmukund resulting in his instant death. When he (Dinesh) tried to save him then Pawan fired second bullet on him which hit his feet/leg. Sachin and Bhagwan were hit by pellets. He was medically examined in 15 the hospital. The subject matter of dispute was chapper (thatch). 25. PW 3 Sachin has also supported the prosecution story. He has corroborated the oral testimony of the earlier two witnesses. The incident took away the life of Balmukund and tried to take away lives of Dinesh and Manglesh who sustained injuries on the spot. 26. Suggestions have come forward on behalf of the accused-appellants that the incident did not take place in the manner in which prosecution witnesses have depicted the same to have taken place. Suggestions have also come on behalf of the appellants that Jaikishan and Balmukund were going to kill Bhagwan Singh with axe and only then accused Pawan fired on Balmukund. In this way the appellants have obliquely admitted their presence on the spot. It appears that they have pleaded for private defense. PW 3 Sachin has denied that Jaikishan and Balmukund had gone to kill Bhagwan Singh. In fact, no axe was there in the hands of Balmukund at the time of incident. It is clear from the testimony of prosecution witnesses that appellants Bhagwan Singh and Pawan Singh were present on the spot. So far as the presence of accused Mahesh Singh is concerned, it has come in the evidence of PW 4 Doctor Narendra Chandra that (accused) Mahesh Singh also sustained injuries. Doctor Narendra Chandra had medically examined accused Mahesh Singh on 17.06.2003 and found swellings in his right hand and lower side of the back. The injuries sustained by accused Mahesh Singh were caused by some blunt object. Thus the 16 presence of all the three accused persons - appellants on the place of occurrence is proved. 27. All the three witnesses have said that when they asked the accused persons not to dislodge the chhappar, then accused Mahesh Singh and Bhagwan Singh told Pawan Singh to fire bullet. Pawan Singh fired at Balmukund. There is no discrepancy in the contents of First Information Report and the evidence of eye-witnesses. The place of occurrence has not been changed. If the prosecution witnesses say that the accused persons dragged Balmukund to the shop of Bhagwan Singh, there is no much distinction between the chhappar and the shop of Bhagwan Singh. It was a continuous process. It was very difficult for the eye-witnesses to have fixed a particular point on which accused Pawan Singh fired at Balmukund, whereby said Balmukund was killed on the spot. The others also sustained injuries. PW 1 Jaikishan has said in his oral testimony that Bhagwan Singh’s shop is on the spot. Accused Pawan Singh did not fire when Balmukund was in chhappar. The accused persons dragged Balmukund to the shop of Bhagwan Singh and then the shots were fired at him. The shop is situated at 3-4 paces from khadanja (brick path). Nowhere it appears that the complainant or his companions were the aggressor or Balmukund might have tried to kill Bhagwan Singh. Bhagwan Singh did not sustain any injury. The First Information Report is clear on the terms as to which accused was armed with which weapon. It is true that none of the persons on the complainant side had sustained injuries of shovel/spade but since Mahesh Singh has sustained injuries 17 on the spot which confirms his presence