IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Jail Appeal No. 140 of 2005 Pan Singh … Appellant (in jail) Vs State of Uttarakhand … Opposite party Sri Abdul Wahid, learned Amicus Curiae for the appellant Sri Nandan Arya, learned A.G.A. for the State. Coram: Hon’ble B.C. Kandpal,J. Hon’ble Dharam Veer, J. [(Judgment Per: B.C. Kandpal, J. (Oral)] This jail appeal has been preferred by the accused/appellant Pan Singh S/o Kunwar Singh against the Judgment and order dated 21.02.2003 passed by learned Additional Sessions Judge/Fast Track Court, Almora in Sessions Trial No. 3 of 1999 whereby the accused appellant has been convicted and sentenced to undergo life imprisonment under Section 302 I.P.C. as well as fine for a sum of Rs. 1,000/- and in default of payment of fine to undergo further rigorous imprisonment for six months. 2. Prosecution story of the case, in brief is that a complaint was lodged on 11.09.1998 at 05:00 p.m. by Dalip Singh S/o Sajjan Singh, R/o Village Sim-Darimi, Patwari Area, Noan Gaon, District Almora against the accused/appellant – Pan Singh S/o Kunwar Singh alleging therein the date 11.09.1998 and time 01:00 p.m. of the incident. It has been alleged that his grandfather – Pan Singh S/o Uttam Singh had gone to Gwala, where Pan Singh S/o Kunwar Singh was residing in a cowshed. On the date of incident, Laxman Singh S/o Sher Singh and Sher Singh S/o Man Singh, R/o Village Noan Gaon and Inder Singh S/o Har Singh and Ganesh Singh S/o Kishan Singh R/o Village Sim-Darimi went to Gwala. Ganesh Singh S/o Kishan Singh informed to Inder Singh S/o 2 Har Singh about the incident by raising alarm that Pan Singh S/o Kunwar Singh killed Pan Singh S/o Uttam Singh with an axe. Thereafter, these two witnesses informed the villagers about the said incident and they reached at the place of occurrence. On reaching at the spot, they have seen that Pan Singh S/o Uttam Singh was lying on the earth smeared with blood. He was lying in an unconscious condition and sustained serious injuries on his head. The injured – Pan Singh S/o Uttam Singh had died at about 03:00 p.m. on the way to hospital when they reached near Birkham. The report of the incident was lodged by Dalip Singh to Vishundhar Bhatt (P.W.4) – Patwari of the area. On the basis of the written report, Patwari of the area registered the criminal case No. 1 of 1998, under Section 302 of I.P.C. against the accused/appellant – Pan Singh S/o Kunwar Singh. Vishundhar Bhatt (Patwari) reached at the place of occurrence and prepared the site plan. He took the body of the deceased into custody and prepared the chik F.I.R. (Ext. Ka 4). He took into possession the axe and bariyat by which the accused committed the murder. He also collected the blood stained and simple earth from the place of occurrence and sealed them in separate container and sent the sample for Forensic Lab, Agra. He also sealed the dead body and prepared sketch of dead body (Ext. Ka 7), letter to C.M.O., Almora (Ext. Ka 5) and sent the dead body for autopsy to C.M.O., District Hospital Sadar, Almora. The investigating officer after completing the investigation submitted the chargesheet (Ext. Ka.13) against the accused/appellant. 3. The autopsy on the dead body of the deceased was conducted by Dr. P.K. Upreti (P.W.5) on 12.09.1998 at 12:00 noon. The doctor has opined that the deceased had died on account of shock and haemorrhage due to ante mortem 3 injuries. In the opinion of the doctor, these injuries were sufficient to cause death of the deceased. He has also opined that the injuries could have been caused by means of axe. The doctor prepared the autopsy report (Ext. Ka. 14). 4. Sri Vishundhar Bhatt (P.W.4) after completing the investigation of the case submitted the chargesheet before the court concerned. Thereafter, the Magistrate concerned committed the case to the court of sessions for trial. 5. In order to support his case, the prosecution has produced Ganesh Singh (P.W.1) – eyewitness of the occurrence, Inder Singh (P.W.2) – another eyewitness of the incident, Dilip Singh (P.W.3) – complainant/informant of the occurrence, Vishundhar Bhatt (P.W.4) – Patwari of the area/Investigating Officer and Dr. P.K. Upreti (P.W.5) - who conducted the autopsy of the deceased. 6. The accused/appellant – Pan Singh S/o Kunwar Singh in his statement under Section 313 Cr.P.C. denied his involvement in the commission of crime. However, he did not adduce any evidence in support of his case. 7. The learned Additional Sessions Judge/Fast Track Court, Almora after hearing learned counsel for the parties and considering the evidence available on record, convicted the accused/appellant guilty for an offence under Section 302 I.P.C. as well as fine for a sum of Rs. 1,000/- and in default of payment of fine further rigorous imprisonment for six months vide judgment and order dated 21.02.2003. 4 8. Feeling aggrieved by the aforesaid judgment and order, the accused/appellant – Pan Singh S/o Kunwar Singh who is in jail preferred this appeal before this Court. 9. We have heard Sri Abdul Wahid, learned Amicus Curiae for the appellant, Sri Nandan Arya, learned A.G.A. for the State and perused the record. 10. To prove its case, the prosecution has produced Ganesh Singh (P.W.1) who has stated in his deposition that he knows Pan Singh S/o Kunwar Singh as well as Pan Singh S/o Uttam Singh - accused/appellant and deceased respectively. He has further stated that the occurrence took place on 11.09.1998 at 01:00 p.m., when he was grazing the animals. He has further deposed that the deceased – Pan Singh and he had gone to Gwala and Inder Singh was standing at about 20- 25 meter away from the place of occurrence. This witness has stated that he was standing there where Pan Singh S/o Uttam Singh was making rope in the shadow of tree. Suddenly, the accused/appellant – Pan Singh S/o Kunwar Singh appeared there having an axe in his hand and hit the deceased – Pan Singh S/o Uttam Singh. This witness started shouting and on this, the accused/appellant – Pan Singh S/o Kunwar Singh ran towards him in order to kill him. In order to save his life, he run towards Inder Singh and Inder Singh called villagers. Thereafter, both of them reached at the place of occurrence and saw that Pan Singh S/o Uttam Singh lying on the earth in an unconscious condition, in pave of blood and the accused – Pan Singh S/o Kunwar Singh was running towards his cowshed, having blood stained axe on his hand. Thereafter, with the help of the villagers, they took the deceased – Pan Singh to the hospital for treatment, but he died at about 03:00 p.m. on the way to hospital. This witness has further stated 5 that the accused and deceased were having enmity prior to this incident on account of which, Pan Singh S/o Kunwar Singh attacked on Pan Singh S/o Uttam Singh resulting his death. 11. Inder Singh (P.W.2) has stated in his deposition that the incident took place on 11.09.1998 at 01:00 p.m. He has stated that on that day, Ganesh Singh informed him about the incident. He has also stated that when they reached at the place of incident, he saw that the accused – Pan Singh S/o Kunwar Singh was going downward having blood stained axe in his hand. He has further stated that he was 20-25 meter away from the place of occurrence. He has further stated that with the help of villagers, they took the deceased to hospital but at 03:00 p.m., he died on the way to hospital. This witness has further stated that Dalip Singh had gone to Patwari for lodging the complaint about the incident. He has further deposed that thereafter, Patwari prepared the panchayatnama and he had singed on the same. 12. Dalip Singh (P.W.3) – has stated in his deposition that Inder Singh informed him about the incident that Pan Singh S/o Kunwar Singh killed Pan Singh S/o Uttam Singh with an axe. He has also supported the version of Ganesh Singh and Inder Singh. He lodged the complaint with the Pawtari of the area. This witness has further stated that on the basis of the complaint, dated 14.09.1998, Vishundhar Bhatt (P.W4) – Patwari of the area accompanied with him to arrest the accused. The accused – Pan Singh attempted to attack on them with a Daranti (sharp edged weapon). He was taken into custody by the Patwari and on his pointing out, the axe used in commission of crime was recovered. 6 13. Vishundhar Bhatt (P.W.4) – who is the Investigating Officer of the case has stated in his deposition that on 11.09.1998 he was posted as a patwari of village Noan Goan. He has further stated that on the date of incident, Dalip Singh lodged a complaint about the incident, on the basis of which he registered a chik First Information Report (Ext. Ka. 4). This witness has further stated that he prepared the sketch of dead body (Ext. Ka 7), letter to C.M.O., Almora (Ext. Ka. 12, sample seal, sent the body for postmortem, recovery of weapon. 14. Dr. P.K. Uprati (P.W.5) – who conducted the autopsy of the deceased. This witness has stated in his deposition that on 12.09.1998, he was engaged as Medical Officer, in the hospital. He has found following ante-mortem injuries on the person of the deceased – Pan Singh S/o Uttam Singh:- 1. Incised wound on back of head 3cm X ½ cm. Bone deep with cutting of the bone 2.5cm which is 3cm below left ear. 2. Incised wound on left ear 4cm X 1/2cm of the middle part. 3. Incised wound right frontal region 2cm above right eyebrow 6cm X 2cm with cutting of the underlying bone 5cm X 1cm. 4. Incised wound on posterior part of head 10cm from left ear measures 3cm X ½ cm with cutting of bone. 5. Right black eye present. 7 15. The doctor has opined that the deceased had died on account of shock and haemorrhage due to ante mortem injuries. The doctor also opined in his evidence that the injuries No. 1 to 4 could have been caused by an axe. He has further opined that the injuries could have been caused at about 01:00 p.m. on 11.09.1998. In the opinion of the doctor, these injuries were sufficient to cause death of the deceased in the ordinary course of nature. The doctor prepared the postmortem report (Ext. Ka. 14). 16. Sri Abdul Wahid, learned Amicus Curiae for the appellant has submitted before the Court that the First Information Report was lodged by Dalip Singh on 11.09.1998 at about 05:00 p.m. whereas the incident took place at 01:00 p.m. He has submitted that there is a delay of about four hours in lodging the complaint. Therefore, the delay in filing the First Information Report creates doubt in the prosecution story and false implication of the accused/appellant on this count cannot be ruled out. 17. We do not find any force in the submission advanced by learned counsel for the appellant. From the perusal of the record, it reveals that the First Information Report was lodged by Dilip Singh (P.W.3) on the date of occurrence. It is apparent from the record that the First Information Report was lodged at 05:00 p.m. while the occurrence took place at about 01:00 p.m. on 11.09.1998. The evidence available on record shows that the victim/deceased was firstly taken to the hospital for treatment and thereafter, he died on the way to hospital. It is not disputed that the incident took place in the village area and it is also not disputed that firstly, the deceased was taken to the hospital by the villagers and he died on the way to hospital at 8 03:00 p.m., Thereafter, it was not easy for the complainant to reach the place of Patwari immediately after the indicent. The complaint was lodged at 05:00 p.m., therefore, it cannot be said that there is inordinate delay in lodging the First Information Report. Keeping in view the promptness of the First Information Report, the possibility of false implication of the accused does not appear on the part of the prosecution. 18. As far as the eyewitnesses account in this case is concerned, we find that the same supports the prosecution case. Ganesh Singh (P.W.1) who is the eyewitness of the occurrence, has stated in his evidence that he had seen the accused – Pan Singh killing Pan Singh (deceased) with an axe. He is a material eyewitness of the incident, who had seen Pan Singh S/o Kunwar Singh committing murder. Inder Singh (P.W.2) supports his version in toto. These two witnesses have further stated that when they reached at the place of occurrence, they saw Pan Singh S/o Kunwar Singh going towards his cowshed having axe in his hand. The statement of these witnesses further find corroboration by the medical evidence of Dr. P.K. Upreti, who conducted the postmortem of the deceased and opined that the injuries sustained by the deceased could have been caused by means of an axe. The doctor has further opined that there is the possibility that the occurrence might have taken place on 11.09.1998 at 01:00p.m. 19. Further, it is also clear from the perusal of the statement of Ganesh Singh (P.W.1) who has stated in his deposition that there is a motive to commit the crime, as he has deposed that there was a dispute of land between the deceased and accused/appellant and this fact also goes against the accused/appellant – Pan Singh S/o Kunwar Singh 9 which shows that the accused was having motive to commit this crime. 20. The statement of another witness Inder Singh (P.W.2) also supports the prosecution case, who, deposed in his evidence that on the date of incident, he had seen Pan Singh S/o Kunwar Singh going downwards having axe in his hand and the deceased – Pan Singh S/o Uttam Singh lying on the earth in an unconscious condition and his head was full of blood. This witness has further stated that he was going there in order to graze the animals and was standing about 20-25 meters away from the place of occurrence, when Ganesh Singh came to him and informed him about the incident. Therefore, the evidence of this witness cannot be disbelieved and his presence at the scene of occurrence appears to be natural. 21. Another strong point, which supports the prosecution story, is the medical report. Dr. P.K. Upreti, conducted the autopsy of the deceased, who has opined in his medical report that there is a fracture of left side of skull 15cm of length semicircular. He has further detected linear fracture on skull on top of skull starting from middle of injury No. 1. The doctor also opined that the cause of death is shock and haemorrhage. He has also stated that the incident could take place on 11.09.1998 at 01:00 p.m. The doctor has further disclosed in his medical report that the injuries could have been caused by an axe. Therefore, the medical report also supports the prosecution story in order to prove the guilt of the accused/appellant – Pan Singh S/o Kunwar Singh. 22. From the above evidence of the witnesses as well as medical report, it is proved that the accused – Pan Singh S/o Kunwar Singh committed the murder of Pan Singh S/o Uttam 10 Singh. Learned Amicus Curiae of the accused/appellant has failed to establish his case and could not produce anything before us, which may disbelieve the prosecution case. Thus, under the aforesaid facts and circumstances of the case, we are of the view that there is none except the appellant who had committed the offence. We do not see any sufficient reason to interfere either with conviction recorded by the trial court or the sentence awarded by it. 23. For the reasons, as discussed above, we do not find any force in the appeal, which is liable to be dismissed. 24. Accordingly, the appeal is dismissed. The conviction recorded by the trial court against the accused/appellant is upheld. The accused is already in jail. He shall be detained in jail to serve out his remaining sentence as has been awarded by the trial court. A copy of this judgment be sent to the Superintendent of Jail, where the accused is detained. (Dharam Veer, J.) (B.C.Kandpal, J.) 07.11.2009 ASWAL