Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Jail Appeal No. 239 of 2006 Jagat Singh and another …Appellants Versus State …Respondent Mr. G.C. Kandpal, Amicus Curiae for the appellants Mr. S.S. Adhikari, A.G.A. for State/respondent Hon’ble B.C. Kandpal, J. Hon’ble Nirmal Yadav, J. Delivered by Hon’ble B.C. Kandpal, J. This appeal preferred by the appellants through jail under Section 374 of Cr.P.C. is directed against the judgment and order dated 21.7.2006 passed by Sessions Judge, Pithoragarh, in Sessions Trial No. 13/2005, State versus Jagat Singh and another, whereby the learned Sessions Judge convicted accused/appellants Jagat Singh and Gagan Singh under Sections 302, 201, 506(2) I.P.C. The Sessions Judge while convicting the accused- appellants under Section 302 I.P.C. sentenced them to undergo life imprisonment and fine of Rs.25,000/- each and in default of payment of fine they were directed to further undergo imprisonment for one year each. The Sessions Judge while convicting the accused-appellants under Section 201 I.P.C. sentenced them to undergo simple imprisonment for seven years and fine of Rs.5,000/- each and in default of payment of fine they were directed to further undergo imprisonment for two months each. The Sessions Judge while convicting 2 the accused-appellants under Section 506(2) I.P.C. sentenced them to undergo simple imprisonment for two years and fine of Rs.1,000/- each and in default of payment of fine they were directed to further undergo imprisonment for fifteen days each. All the sentences were directed to be run concurrently. 2- Prosecution story in brief is that on 19.2.2005 complainant Bahadur Singh resident of village Kantauli Jamtadi P.S. Askot Pithoragrah lodged a written report/F.I.R. (Ext.Ka.1) with P.S. Askot, on the basis of which entry to this effect was made in the General Diary vide Ext.Ka.6 and Chick F.I.R. (Ext.Ka.3) was recorded. The complainant alleged in his report that his nephew (Bhanja) Kundan Singh son of Paan Singh resident of village Rajauda District Betadi, Nepal, who along with his family members had been residing in village Jamtadi for about one year, had gone to Chiran along with his companion and on 16.2.2005 Kundan Singh was found dead at Askot-Jamtadi road, Pokhari. The police prepared inquest on the dead body of deceased Kundan Singh and sent the dead body for post mortem examination. On being returned after post mortem examination was conducted complainant came to know that his nephew Kundan Singh was murdered by Jagat Singh and Gagan Singh on 15.2.2005 and his dead body was found lying on the way after commission of murder. It has also been alleged that accused Jagat Singh and Gagan Singh had absconded from the village on the date of occurrence. The quarrel between the deceased and the accused persons was seen by the 3 people of village Jamtadi and Askot. Ramesh Singh (PW-1) had seen the accused persons throwing down the deceased after committing his murder, but due to fear PW-1 did not inform the police about the incident, but later on he had told me about the same. It has further been alleged that on 16.2.2005 accused persons Jagat Singh and Gagan Singh gave threat to Kamla, wife of deceased Kundan Singh, that if she lodged report with the police about the offence, they would also kill her. On the basis of written report case crime no. 61/2005 was registered at P.S. Askot against the accused persons under Sections 302, 506 I.P.C. The investigating officer after completion of the investigation submitted charge sheet against the accused persons. 3- After submission of the charge sheet accused- appellants were committed to the court of Sessions and the learned Sessions Judge after hearing the parties framed charge of offence punishable under Sections 302, 201, 506(2) I.P.C. against accused- appellants. The accused pleaded not guilty and claimed to be tried. 4- The prosecution in order to prove its case got examined as many as five witnesses, namely, PW-1 Ramesh Singh (eyewitness), PW-2 Bahadur Singh (complainant), PW-3 Dr. D.S. Panchpal (witness of the post mortem), PW-4 Gokul Chandra Joshi and PW-5 Vijay Pal Gautam, investigating officer. Towards documentary evidence prosecution has produced F.I.R. (Ext.Ka.1), Chick F.I.R. (Ext.Ka.2), 4 Site Plan (Ext.Ka.3), arrest memo (Ext.Ka.4), written report (Ext.Ka.5), recovery memo of wood (Ext.Ka.6), recovery memo of stone (Ext.Ka.7), recovery of map (Ext.Ka.8), copy of report (Ext.Ka.9 & Ext.Ka.10), inquest report (Ext.Ka.11), Report P.S. Askot (PW- 12), Police Form No. 13 & 33 (Ext.Ka.13), photo lash (Ext.Ka.14 & Ext.Ka.15), sample of seal (Ext.Ka.16), recovery memo of bloodstained earth and simple earth (Ext.Ka.17), recovery memo of liquor (Ext.Ka.18), application u/s 164 Cr.P.C. (Ext.Ka.19), Forensic Science Lab. Report (Ext.Ka.21) and charge sheet (Ext.Ka.22). 5- After the evidence of the prosecution was over, the statement of the accused-appellants was recorded under Section 313 Cr.P.C. The accused denied the prosecution case and claimed innocence and false implication due to enmity. However, the accused did not adduce any evidence in their defence. 6- The trial court having considered the entire evidence on record and hearing learned counsel for parties found guilty accused-appellants Jagat Singh and Gagan Singh of the offence punishable under Sections 302, 201, 506(2) I.P.C. and convicted and sentenced them as referred to paragraph-1 of the judgment, vide impugned judgment and order dated 21.07.2006. 7- Feeling aggrieved by the aforesaid impugned judgment and order, accused-appellants have preferred the present appeal through jail which has 5 been placed before us for disposal. 8- We have heard Mr. G.C. Kandpal, learned Amicus Curiae for the appellants, Mr. S.S. Adhikari, A.G.A. for the State/respondent and perused the record. 9- At the outset, it is to be pointed out that instant case rests on direct evidence as well as circumstantial evidence. Direct evidence is of PW-1 Ramesh Singh, who had seen the accused persons throwing down the deceased Kundan Singh in the bushes from upwards and accused persons were having danda and stone. PW-1 had also seen blood stains on the way. The circumstances put forth by the prosecution are motive for the commission of crime and last seen evidence. Therefore, now it is to be seen by this Court whether offences charged against the accused persons are established on the basis of the above direct evidence as well as circumstantial evidence or not. 10- So far as medical evidence is concerned, the same is not going to rule out the authenticity of the prosecution case. PW-3 Dr. D.S. Panchpal, who conducted post mortem on the dead body of the deceased, found as many as 12 ante mortem injuries in the shape of lacerated wound, bruise and contusions. In the opinion of the doctor the death of the deceased had caused due to shock and haemorrhage as a result of ante mortem injuries. The doctor also opined that the injuries were likely to be caused by stone and Dandas. He also opined 6 that bruise on the person of the deceased could be caused by dragging before his death. Although the doctor (PW-3) in his cross-examination expressed remote possibility that if a person is climbing the height in a drunken condition and he fells down, then in that situation such a injury could be caused, but this remote possibility of sustaining injuries by the deceased is ruled out by the deposition of prosecution witness PW-1 Ramesh Singh, who is the eye witness of the occurrence. 11- PW-1 Ramesh Singh, eyewitness of the occurrence, has stated that he knew the accused persons as they belonged to his village. Deceased Kundan Singh also belonged to his village. This witness has stated that on 15th February 2005 he had gone to Askot Market for doing some labour work and in the evening when he was returning his home, shop keeper Kallu Singh told him that Kundan Singh, Jagat Singh and Gagan Singh were quarreling with each other and when he reached at Pokhari rivulet at about 7-7.30 p.m. he had seen that accused Jagat Singh and Gagan Singh were throwing down Kundan Singh. Jagat Singh was catching hold of his leg and Gagan Singh was holding him from his head. Gagan Singh was having stone in his hands, whereas Jagat Singh was having danda in his hands and on seeing him (PW-1), the accused persons ran away towards the fields. This witness has also deposed that blood was lying there on the way and Kundan Singh was lying dead in the bushes. The accused also threw stone at him and threatened him if he told the incident to anyone he 7 would also be killed and for this reason he did not tell the incident to anyone but his conscience did not permit him to keep mum, therefore, on 18th February, 2005 he went to the house of Bahadur Singh and narrated the entire incident. Therefore, in view of the eyewitness account and the medical evidence it is clearly proved that deceased Kundan Singh was murdered by the accused persons with stones and dandas. The testimony of eyewitness PW-1 Ramesh Singh is natural and trustworthy and his presence on the place of incident cannot be doubted. This witness is an independent witness and he has no enmity with the accused persons, therefore, there is no reason with him for deposing false evidence against the accused persons. 12- Besides eyewitness account of PW-1 Ramesh Singh, the prosecution case is fully supported by the circumstantial evidence. So far as motive for committing the murder of Kundan Singh is concerned, it has come in the evidence of PW-4 Gokul Chandra Joshi that accused persons were quarrelling with the deceased pertaining to money. PW-4 Gokul Chandra Joshi, who was running wine shop at Askot Market at the time of occurrence, has stated that on 15the February, 2005 at about 6.45- 7.00 p.m., Kundan Singh came at his shop along with three other persons including accused Jagat Singh and Gagan Singh and another person was Jeet Singh, father of Gagan Singh. This witness has stated that he had seen these persons quarrelling at his shop and when he asked Kundan Singh as to what is the matter, then he told that the accused 8 persons are quarrelling with him pertaining to money and on the next morning i.e. on 16.2.2005 he came to know that Kundan Singh was lying dead on Askot-Jamtari footpath. Therefore, from the evidence of above witness PW-4, it is quite clear that on the date of occurrence accused persons were quarrelling with the deceased with respect to some money, therefore, they had strong motive for committing the murder of deceased. 13- Another circumstance is of last seen evidence. PW-4 Gokul Chandra Joshi has stated in his evidence that on 15.2.2005 at about 6.45-7.00 p.m. he had seen deceased Kundan Singh in the company of accused Gagan Singh and Jagat Singh and one another person Jeet Singh. They were quarrelling with each other and thereafter on the next morning he came to know that Kundan Singh was lying dead on Askot-Jamtadi footpath near Pokhari rivulet. In this way, deceased was lastly seen quarrelling with accused persons and this circumstance only points towards the guilt of the accused persons. 14- The next circumstance is the report of the Forensic Science Laboratory (paper no. 4Ka/36-A) regarding bloodstained articles. The Forensic expert opined that dandas and stone sent for chemical examination were having blood stains. Thus, it is quite clear the articles sent for analysis, were having blood stains and the dandas and stone which were recovered at the pointing out of accused was used in the commission of crime. 9 15- Therefore, as discussed above, the prosecution has been successful in establishing the guilt of the accused persons beyond reasonable doubt from the eyewitness account given by PW-1 Ramesh Singh as well as circumstantial evidence of last seen and motive of the crime, stated by PW-4 Gokul Chandra Joshi and the medical evidence adduced by PW-3 Dr. D.S. Panchpal. According to PW-3 injuries to the deceased could be caused by dandas and stones. According to PW-1 Ramesh Singh, he had seen accused persons Jagat Singh and Gagan Singh throwing down the deceased Kundan Singh and Gagan Singh was having stone in his hands, whereas Jagat Singh was having danda in his hands. This witness (PW-1) also saw blood stains on the way. Therefore, the blood could be fallen on the way when the accused persons had beaten the deceased prior to throwing him down in the ditch. All the evidence and circumstances of the case draw the only one conclusion that the accused persons beaten the deceased with stones and dandas for the reasons of some money transaction and when the deceased was breathing his last, the accused persons threw him in the bushes in order to destroy the evidence of murder and to screen themselves from legal punishment. We, therefore, find that the prosecution has been successful in establishing offence under Sections 302 and 201 I.P.C. against the accused persons for committing murder of Kundan Singh and thereafter throwing his body in the bushes. 10 16- The learned trial court also framed charge under Section 506(2) against the accused persons for extending threat of life to the wife of deceased, Smt. Kamla. PW-2 Bahadur Singh, complainant, lodged the F.I.R. (Ext.Ka.1) at P.S. Askot on 19.2.2005. In the First Information Report, PW-2 complainant casted a doubt against the accused Jagat Singh and Gagan Singh. He has alleged in the F.I.R. that on 15.2.2005 in the night these accused persons committed murder of his nephew and both these persons absconded from the village after committing the murder. He has also mentioned in the F.I.R. that accused persons were seen quarrelling with Kundan Singh by some villagers and Ramesh Singh had seen them throwing Kundan Singh downwards. He has also alleged in the F.I.R. that on 16.2.2005 accused persons gave threat to Smt. Kamla, wife of deceased Kundan Singh, that if she informed the police then she would also be killed by them. The informant Bahadur Singh (PW- 2) also deposed this fact before the trial court. 17- Learned counsel for the appellants has argued that Smt. Kamla, to whom threat of life was extended by the accused persons, has not been examined in the case and merely on the basis of statement of informant Bahadur Singh (PW-2), accused persons cannot be convicted for offence under Section 506(2) I.P.C. We do not find any force in the argument advanced on behalf of accused- appellants. As stated above, complainant Bahadur Singh has specifically mentioned this fact in the concluding line of written report (Ext.Ka.1) that 11 both the accused persons had given threat of life to Smt. Kamla Devi, wife of the deceased Kundan Singh on 16.2.2005 that if she lodged report with the police about the offence she would be killed by them. This fact has been deposed by this witness on oath before the trial court also. Therefore, there is no reason to disbelieve the testimony of this witness as well as the F.I.R. in which the witness has mentioned this fact and we find that offence under Section 506(2) I.P.C. is also fully proved against the accused persons and they have rightly been convicted and sentenced by the learned trial court. 18- For the reasons as stated above, we do not find any reason to interfere with the conviction and sentence, recorded by the trial court against accused-appellants Jagat Singh and Gagan Singh under Sections 302, 201, 506(2) I.P.C. The appeal lacks merit and is liable to be dismissed. 19- Accordingly, the appeal is dismissed. The impugned judgment and order dated 21.7.2006 is hereby confirmed. Accused-appellants Jagat Singh and Gagan Singh are already in jail. They shall remain in jail in order to serve out the sentence. 20- Let the record be transmitted to the trial court for compliance to be reported to this Court within two months. (Nirmal Yadav, J.) (B.C. Kandpal, J.) June 14, 2010 SP