IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No.77/2009 (Old No. 1988/86) Rishi Pal and others …………… Appellants. Versus State …………………….Respondent. Sri S.K. Aggarwal, learned Senior Advocate assisted by Mr. A.V. Pundir, Advocate for appellants. Mr. S.S. Adhikari, learned A.G.A. for the State. Dated: March ,2010. Coram: Hon’ble B.C. Kandpal, J. Hon’ble Nirmal Yadav, J. [Per: Hon’ble B.C. Kandpal, J.] This criminal appeal, under Section 374 Cr.P.C. has been preferred against the judgment and order dated 24-7-1986, passed by II Addl. Sessions Judge, Saharanpur, in S.T. No. 46/1984, whereby accused Rishipal Singh was found guilty of offences U/Ss 302 I.P.C., 148 I.P.C., 302/149 I.P.C., 307/149 I.P.C., 307/149 I.P.C. and 427 I.P.C. and sentenced to undergo life imprisonment U/S 302 I.P.C.; 2 years R.I. U/S 148 I.P.C.; life imprisonment U/S 302/149 I.P.C., 5 years R.I. U/S 307/149 I.P.C. for attempting to commit murder of Data Ram; 5 years R.I. U/S 307/149 I.P.C. for attempting to commit murder of Suggan Chand and one year’s R.I. U/S 427 I.PC. Accused Madan, Harpal, Mainpal and Babu Ram were found guilty U/Ss 148 I.P.C., 302/149 I.P.C., 307/149I.P.C., U/S 307/149 I.P.C. and 427 I.P.C. and each of 2 them were sentenced to undergo R.I. for 2 years U/S 148 I.P.C.; life imprisonment U/S 302/149 I.P.C.; 5 years R.I. U/S 307/149 I.P.C. for attempting to commit murder of Data Ram; 5 years R.I. U/S 307/149 I.P.C. for attempting to commit murder of Sugan Chand and one year’s R.I. U/S 427 I.P.C. Accused Dharam Singh and Dharampal were found guilty U/S 147 I.P.C., 302/149 I.P.C., U/S 302/149 I.P.C., 307/149 I.P.C., 307/149 I.P.C. and U/s 427 I.P.C. and both of them were sentenced to undergo R.I. for one year U/S 147 I.P.C.; life imprisonment U/S 302/149 I.P.C. for causing murder of Phool Singh; life imprisonment U/S 302/149 I.P.C. for causing murder of Jitendra; 5 years R.I. U/S 307/149 I.P.C. for attempting to commit murder of Data Ram; 5 years R.I. U/S 307/149 I.P.C. for attempting to commit murder of Suggan Chand and one year’s R.I. U/S 427 I.P.C. 2- The prosecution story, in brief, is that Thakar Singh has got three sons, viz. Surja, Phool Singh and Data Ram. These three brothers were owners and in possession of Khata No. 169 measuring 13-12-0 Bigha, Khata No. 170 measuring 26-11-0 Bigha and Khata No. 187 measuring 1-10-0 Bigha in village Belhri and Khata No. 106 measuring 4-10-0 Bigha in village Kallanpur. Each brother was having equal share in the above landed property. Surja had no son and his only daughter named Rakesh is married to Madanpal in village Kutubgarh, P.S. Thanabhawan, District Muzaffarnagar. The further prosecution case is that Surja executed a registered will on 18- 6-1975 in favour of Samay Singh, his real nephew and son of Data Ram. Surja died in 1980 and the 3 dispute arose about the inheritance of the share of the land of Surja. On the basis of registered-will executed by Surja, Samay got mutation of the land in his favour vide exparte order dated 21-10-1980 passed by Tehsildar. Smt. Punni @ Mukandi moved application for setting aside mutation before Tehsildar Roorkee who allowed the application and set aside the exparte order vide order dated 27-10- 1980. The Tehsildar called upon Samay and Smt. Punni to contest the case and ultimately on 14-3- 1983 Tehsildar Roorkee allowed the mutation in favour of Samay Singh on the basis of his will. In appeal S.D.M. reversed the order of Tehsildar and allowed mutation in the name of Smt. Punni in place of her deceased husband. Thereafter Samay challenged the order of S.D.M. before Addl. Commissioner Meerut, who vide order dated 16-11- 1983 allowed the revision and the impugned order of S.D.M. was recommended to the Board of Revenue for cancellation. 3- The prosecution case as unfolded by F.I.R. , Ext. Ka.1, lodged by Naresh Kumar son of Data Ram at P.S. Roorkee on 9-10-1983 at 8 A.M., is that his parental uncle Surja has executed a Will of his 50 Bighas of land in favour of Samay Singh and after the death of Surja, Smt. Punni @ Mukandi widow of Surja started litigation challenging the authenticity of the said Will. Accused Dharampal, Harpal, Mainpal, Madan, Babu Ram, Rishipal and Dharam Singh, were supporters of Smt. Punni Devi in her litigation. According to complainant Naresh on 9-10-1983 at about 6.30 A.M. he and his brother Jitendra Kumar went to their plots to irrigate the paddy-crop. They took their Tractor with them for 4 irrigation. They found that the above named persons Dharampal, Harpal, Mainpal, Madan, Babu Ram, Rishipal and Dharam Singh had been overturning the paddy crops belonging to them with the help of two tractors. Naresh Kumar and his brother Jitendra returned to their homes and came back to the place with their relatives Phool Singh, Sugan Chand, Data Ram and Samay Singh. All of them requested the accused persons not to overturn their paddy crop till their revision is pending in the court of Commissioner, but the accused persons did not pay any heed to their request and Rishipal and Babu Ram fired shots from their guns, while Madan, Mainpal and Harpal fired shots from their country made pistols resulting into injuries to Jitendra Kumar, Sugan Chand and Data Ram, who fell down. The complainant party raised alarm and started running here and there on which Rishipal chased Phool Singh and shot dead him by his gun. Thereafter all the accused persons ran away towards village Belra on their tractors. The complainant also mentioned in the F.I.R. that Ballu of village Belra, Desraj of village Dhadendri and Ashok Kumar of village Khanjarpur have witnessed the occurrence and they also found Jitendra Kumar and Phool Singh dead on the spot. Injured Sugan Chand and Data Ram were sent for medical treatment at Roorkee Hospital and Naresh Kumar came to his home, where he prepared F.I.R. and went to P.S. Roorkee and he handed over the F.I.R. at 8 A.M. On the basis of F.I.R. chick F.I.R., Ext. Ka.2 was prepared at P.S. Roorkee and a case was registered against the accused persons at report No. 12, copy of G.D. is Ext. Ka.3. 5 4- Sri R.S. Garg, S.O. P.S. Roorkee took investigation of the case. He dispatched Sub Inspectors, Gangasaran Sharma, Brahmpal Singh, Shivdatt Sharma, Ravindra Pal Tomer and Raja Ram along with constables Aradar Hussain, Bijendra Singh and others to the place of occurrence with the direction to prepare inquest report on the dead bodies. The Investigating Officer along with three constables left the police station at 8.45 A.M. to apprehend the accused, Madan, Babu Ram, Mainpal, Harpal and Dharampal and these accused were arrested at some distance. Tractor on which these accused were fleeing was also taken into custody. Necessary memos were prepared by the I.O. for making arrest etc. Inquest of dead bodies of Phool Singh and Jitendra, Ext. Ka.24 and Ka.30 respectively were prepared and completing necessary formalities and preparing the relevant documents, the dead bodies were sent for post mortem. Site plan of the place of occurrence, Ext. Ka.13, was also prepared by the I.O. The I.O. after completion of investigation submitted charge sheet, Ext. Ka.18 against the accused persons. 5- P.W.5, Dr. G.S. Sharma conducted the autopsy on the dead body of deceased Jitendra Kumar on 10-10-1983 at 11.15 A.M. in T.B. Hospital, Haridwar, and he found following antemortem injuries on his person- 1. Fire-arm wound of entry 1x 0.5cm through and through on right ear upper part posteriorly. 2. Fire-arm wound of exit on the anterior surface of right ear at the level of injury no.1, 1.5cm x 1.5cm. 6 3. Fire-arm wound of entry 1cm x1cm on the border of right eye bone deep. 4. Fire-arm wound of entry on the back right side at the back of upper border of right scapula 1cmx 0.7cm. 5. Fire-arm wound of exit on the front right side 2cm clavicle middle part 2cm x 1cm. 6. Fire-arm wound of entry 1cm x 0.7cm on the left side of chest 3cm from the midline and 9cms above the left nipple. 7. Fire-arm wound of entry 0.7cm x 0.7cm on the neck midline back at the bone of 7 cervicle vertibra. 8. Fire-arm wound of exit 2cm x 1 ½ cm on the chin. Directions of injury Nos. 1,4 and 7 was backward to forward. Three broken pellets and its pieces were recovered from right temporal region under the skin. The cause of death of deceased was due to shock and haemorrhage due to fire-arm injuries. He prepared postmortem report Ext. Ka.9. 6- On the same day 1.15 P.M. he performed the autopsy on the dead body of deceased Phool Singh and he found following antemortem injuries on his person- 1. Contusion 11cm x 6cm on the right side face upper half. 2. Contusion 11cm x 6cm on the right shoulder anterior side. 3. Contusion 16cm x 13cm on the right side face, forehead and chin. 4. Contusion 7cm x 5cm on the right forearm back upper 1/3rd. 7 5. Fire arm wound of entry 9cm x5cm in the left arm pit. Burning around the wound present. Direction- wound of entry with fracture of 3rd and 4th rib left side- left lung crush-aorta crush through and through- right lung upper lobe crush. Fracture of left 3rd, 4th and 5th rib in front. The doctor also recovered seven pellets from the skin near the wound, 10 pellets from the left lungs, 40 pellets from the right lung and three pieces of wads from the right lung. Abdomen and heart were found empty. He also opined duration of death 1-1 ½ days and cause of death was due to shock and haemorrhage by firearm injury. The doctor prepared postmortem report Ext. Ka.8. 7- Injured-eyewitnesses Suganchand and Data Ram were also medically examined by Dr. J.K. Gupta, P.W.6 at Civil Hospital Roorkee On 9.10.1983. Sugan Chand was examined at 7.30 A.M. and following injuries were found on his person- 1- Gun shot wound 1x 0.75cm x not probed left side of neck, 3cm below the angle of mandible. Bleeding present, margins inverted. 2- Gun shot wound 0.75 cm x 0.75 x bone deep on left clevicle in middle with ‘H’ underneath, bleeding present. 3- Gun shot wound 1.25 cm x 1cm x not probed front of left shoulder, bleeding present margins inverted. 4- Gun shot wound 1.5cm x 1cm not probed medial side of left upper arm in middle. Bleeding present, margins irregular everted. 8 5- Gun shot wound 1x0.75 cm not probed on back of neck left side in lower part, 1cm from midline bleeding present. 6- Gun shot wound .5cm x .5cm not probed on back of left upper arm in middle, bleeding present. The doctor found no blackening, tattooing around the wounds, general condition very low. Patient was semi-conscious. In the opinion of the doctor the injures were fresh and they were caused by fire-arm. He proved injury report, Ext. Ka.10. After x-ray the doctor also prepared supplementary report, Ext. Ka.11. Same day at 9.25 A.M. the doctor medically examined Data Ram and found following injuries on his person- 1. Multiple gun shot wounds on back in lower part. Both glutial region and back of left hip extremity, both feet and front of left leg varying from .5cm x.5cm, .25cm x .25 cm. Bleeding present in few and blackening of skin around few. 2. Gun shot wound 0.25cm x .25cm x muscle deep on front of right forearm in middle. Duration of wounds was fresh. The doctor proved the injury report, Ext. Ka.12. 8- On 23-1-1984, the Judicial Magistrate, Roorkee, committed the case to the court of Sessions. 9- The II Addl. Sessions Judge, Saharanpur charged accused Rishipal U/Ss 302, 148, 302/149, 307/149 and 427 I.P.C. Accused Madan, Harpal, Mainpal and Babu Ram were charged under 9 Sections 148, 302/149, 307/149 and 427 I.P.C. Accused Dharam Singh and Dharampal were charged under Sections 147, 302/149, 302/149, 307/149, 307/149 and 427 I.P.C. The accused denied the charges and claimed their trial. 10- The prosecution in support of its case examined in all 9 witnesses, of these, P.W.1, Naresh Kumar is the complainant, P.W.2, Sugan Chand is the injured, P.W.3, H.C. Vinod Kumar registered the case at the police station, P.W.4, Ashok Kumar is the eye witness of the occurrence, P.W.5, Dr. G.S. Sharma did the autopsy on the dead bodies of Phool Singh and Jitendra Kumar, P.W.6, Dr. J.K. Gupta examined the injured Sugan Chandr and Data Ram, P.W.7, R.S. Garg is the I.O. of the case, P.W.8, Constable Babu Lal has filed his affidavit regarding taking the dead bodies from the place of occurrence to the Mortuary and P.W.9, Nawab Khan is the photographer. 11- The accused persons in their statements under Section 313 Cr.P.C. denied the prosecution case and alleged that they have been falsely implicated in the case due to enmity. The accused have examined D.W.1, Shahid who had stated about the receipt of complaint filed by Rishipal accused against Smt. Punni and Tika Ram. D.W.2, Om Prakash Mani Tripathi is the Ballistic Expert and D.W.3, Rakesh Kumar is the Record Keeper of Police Office Saharanpur. 12- The learned trial court after hearing learned counsel for the parties and considering the entire material available on record, found the 10 prosecution case proved against all the accused persons and accordingly convicted and sentenced them vide impugned judgment dated 24-7-1986. 13- Feeling aggrieved the accused persons have filed this appeal. 14- We have heard the learned counsel for the parties and perused the record. 15- At the outset it is to be mentioned here that during the pendency of this appeal accused appellants Babu Ram, Mainpal and Harpal have died and the appeal stands abated against accused/appellant Babu Ram, vide order dated 23- 2-2010. The C.J.M. Muzaffarnagar vide his letter dated 15-3-2010 has confirmed the death of accused/appellants Mainpal and Harpal, therefore, the appeal also stands abated against these two accused/appellants Mainpal and Harpal. 16- Now there remains accused/appellants Madan, Dharam Singh, Rishipal and Dharampal. Accused/appellant Rishipal is found guilty for offences U/S 302 I.P.C., 148 I.P.C., 302/149 I.P.C., 307/149 I.P.C., 307/149 I.P.C. and 427 I.P.C. Accused/appellant Madan is found guilty U/Ss 148 I.P.C., 302/149 I.P.C. 307/149 I.P.C., 307/149 I.P.C. and 427 I.P.C. whereas the remaining accused/appellants Dharam Singh and Dharampal have been held guilty for the offences U/Ss 147 I.P.C., 302/149 I.P.C., 302/149 I.P.C., 307/149 I.P.C., 307/149 I.P.C. and 427 I.P.C. The prosecution case further is that in the occurrence Phool Singh and Jitendra Kumar have died, 11 whereas Data Ram and Sugan Chand have received injuries on their persons. Further charge against the accused/appellants is that they committed mischief causing loss or damage to rice crop of Jitendra Kumar. At the scene of occurrence the convict/appellants Rishipal, Madan, Harpal, Mainpal and Babu Ram were having deadly weapon like gun and country-made pistols whereas accused/appellants Dharam Singh and Dharampal were driving the tractors and on their exhortation accused persons started firing and these two accused/appellants also shared the common object of unlawful assembly. 17- Learned defence counsel first of all has argued that the genesis of prosecution case is highly doubtful. According to prosecution the main reason of dispute between Samay Singh and his aunt Smt. Punni Devi, is the alleged Will which had been executed by Surja in favour of his nephew Samay Singh, but the said Will has not been filed on record and non-filing of Will on record, indicates that no Will was executed by Surja and Samay Singh is trying to take unlawful possession over the land of his uncle. 18- The above submission of learned defence counsel is falsified by the judgment of Tehsildar, copy of which is Ext. Ka.36 on record. Perusal of above judgment reveals that statement of Samay Singh was recorded by Tehsildar in which he has deposed that original Will was with Smt. Punni, his aunt. This fact appears to be true because original Will must have been kept by Surja with him as a person who executes a Will, keeps the same with 12 him. There is no dispute on the point that litigation pertaining to the land of Surja was going on between Samay Singh on the one hand and Smt. Punni Devi on the other. Samay Singh had initiated proceedings for mutation just after the death of Surja and got mutation order in his favour on 21.10.80. Both the parties have fought the case up- to Commissioner’s level and this fact clearly indicates that the terms between Samay Singh and his aunt Smt. Punni Devi were not cordial and the main reason for bitterness was the land of Surja and the occurrence had taken place due to the said enmity arose due to land of Surja. Therefore, we find that the genesis of the case is amply proved. 19- The prosecution case further is that due to litigation between Samay Singh and Smt. Punni, accused persons were the supporters of Smt. Punni Devi. Accused Dharampal is resident of village Belra, Harpal ad Mainpal were residents of Kutubgarh, where daughter of Smt. Punni is married, accused Madan is the son of real brother of Smt. Punni Devi, accused Rishipal is the son of sister of Smt. Punni Devi, accused Babu Ram and Dharam Singh sons of Chohal Singh belong to village Seedpura, P.S. Nagal. The accused persons were acquainted to the prosecution witnesses prior to the incident. The incident had taken place at 6.30 A.M. on 9.10.1983 and there was full opportunity to identify the accused persons by the prosecution witnesses. As the accused persons were taking favour of Smt. Punni Devi in the litigation therefore, they had motive to commit the occurrence. On the day of occurrence the accused persons were overturning the paddy crops sown in 13 the fields and when the complainant party asked them not to do so, they in furtherance of their common object fired shots from their fire-arm which hit to Phool singh, Sugan Chand, Data Ram and Jitendra Kumar. Phool Singh and Jitendra Kumar succumbed to the injuries whereas Sugan Chand and Data Ram sustained fire-arm injuries on their persons. The specific case of the prosecution is that accused Rishipal and Babu Ram fired shots from their guns, while Madan, Mainpal and Harpal fires shots from their country made pistols resulting into injuries to Jitendra Kumar, Sugan Chand and Data Ram who fell down and when the persons at the spot raised alarm, and started running here and there, Rishipal chased Phool Singh and he was shot dead by accused Rishipal. 20- Learned counsel for the accused/appellants has next submitted that the prosecution did not examine the injured witness Sugan Chand and two eyewitnesses Deshraj and Ballu who were named in the F.I.R. and non- examination of these eyewitnesses caste a serious doubt in the prosecution story. 21- We find that non-examination of the injured Sugan Chand and eyewitnesses Deshraj and Ballu, does not affect the veracity of prosecution case. The court has to weigh the trustworthiness and value of evidence on record and not to count the number of witnesses examined in the case. In case if the evidence of the witnesses examined in support of the case, is found to be credible and sufficient to establish the guilt of the accused, then examination of further witnesses would be simply a 14 repetition. In the instant case the prosecution has examined three eyewitnesses, viz. P.W.1, Naresh Kumar, P.W.2, Sugan Chand and P.W.4, Ashok Kumar. The evidence of these eyewitnesses is consistent with each other. 22- P.W.1, Naresh Kumar gave the prosecution story telling that his father has got two other brothers- Surja, Phool Singh and Data Ram. Rakesh is the daughter of Surja who is married with Madanpal R/O of Kutubgarh. Surja had no other issue. He further deposed that he has got four other brothers Dharampal, Samay Singh, Shyam Singh and Jitendra. Samay Singh used to reside with Surja who was having 50 Bighas of land. Surja executed Will of his land in favour of Smay Singh. After the death of Surja, Samay Singh moved mutation application before Tehsildar Roorkee and Smt. Punni contested that application but Tehsildar decided the case in favour of Samay Singh. Smt. Punni filed appeal before S.D.M. and won the case. Samay Singh then preferred a revision before Commissioner Meerut and the Commissioner granted stay till 31-10-1983. The witness has also given the inter-se relationship of accused with Smt. Punni. Tikka Ram is the brother of Smt. Punni and accused Madan is the son of this Tikka Ram. Accused Babu Ram and Dharam Singh were real brothers. Their another brother is Karam Singh who is married with Bhua (father’s sister) of accused Harpal and Mainpal who were real brothers of Madan, husband of Rakesh and son-in-law of Smt. Punni and Surja. Accused Rishipal is the son of real sister of Smt. Punni whereas accused Dharampal is married in the family of Tikka Ram. 15 23- P.W.1, Naresh Kumar further deposed that Madanpal and Tikka Ram had been doing pairvi on behalf of Smt. Punni. This witness has deposed that at about 6.30 A.M. he and his brother Jitendra went to their plot to irrigate it with tractor. They found all the accused persons overturning the paddy crop with two tractors being driven by accused Dharam Singh and Dharampal. The paddy crop was sown by Samay Singh. He and Jitendra Kumar returned to their homes and came back with their father Data Ram and uncle Phool Singh as well as other relatives Samay Singh and Sugan Chand. All of them requested the accused that they will abide the judgment of the Commissioner and till then they should abstain themselves from cutting the crop but the accused did not pay any heed to their request and threatened them with dire consequences. These persons again requested the accused on which Dharam Singh and Dharampal exhorted their companions to kill them and accordingly Rishipal and Babu Ram fired shots from their guns while Madan, Mainpal and Harpal fired shots from their country made pistols. They raised alarm and ran here and there as Sugan Chand, Jitendra and Data Ram had received gunshot injuries. Accused Rishipal chased Phool Singh and shot fire at him. According to this witness Phool Singh and Jitendra Kumar died on the spot while Sugan Chand and Data Ram received injuries. Injured Sugan Chand and Data Ram were sent Roorkee Hospital through tractor and he came back to his home and prepared F.I.R., Ext. Ka.1 and lodged it at the police station. 16 24- P.W.2, Sugan Chand is the injured eyewitness of the occurrence. He has fully corroborated the incident. He is said to have gone to his plots with Phool Singh, Data Ram, Samay Singh, Naresh and Jitendra and requested the accused not to destroy the crop. He has stated that accused Dharam Singh and Dharampal were driving the tractor, Babu, Rishipal were having gun and the rest three were having country made pistols. When they requested the accused not to destroy the crop, accused Dharampal and Dharam Singh exhorted the other accused to shot fires from their weapons and at this accused started firing. He has also deposed that the shots were hit to him, Data Ram, and Jitendra. Thereafter all of them started running. Phool Singh fell on the ground and accused Rishipal fired shot at him due to which he died at the spot and Jitendra also died at the spot after sustaining gun shot injury. 25- The third eyewitness of the occurrence examined by the prosecution is P.W.4, Ashok Kumar. He is an independent witness. He has deposed that at about 6.30A.M. he found that two tractors were over-turning the paddy crop in the field of Samay Singh and these tractors were being driven by Dharam Singh and Dharampal while rest were standing with guns and country made pistols. He further stated that Data Ram, Jitendra, Phool Singh, Sugan Chand, Ram