IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 84 of 2002 1. Kundan Singh 2. Satyendra Singh 3. Alam Singh @ Tungi …Appellants. Versus State of Uttaranachal (Uttarakhand) ….Respondent Present : Mr. Vijay Laxmi Fartiyal, Advocate for the appellants. Mr. Amit Bhatt, Assistant Government Advocate for the respondent. Coram: Hon’ble Prafulla C. Pant, J. Hon’ble Sudhanshu Dhulia, J. Prafulla C. Pant, J. (Oral) (1) This appeal, preferred under Section 374 of Code of Criminal Procedure, 1973, is directed against judgment and order dated 02.04.2002 passed by learned Sessions Judge, Pauri Garhwal in sessions trial no. 99 of 1997, whereby said court has convicted the appellants Kundan Singh, Sateyndra Singh and Alam Singh @ Tungi under Section 302 read with Section 34 of Indian Penal Code, 1860 (for short IPC). Each one of the convicts has been sentenced to imprisonment for life. (2) Heard learned counsel for the parties, and perused the lower court record. (3) Prosecution story, in brief, is that Bhagat Singh (deceased) was the son of appellant no.1 Kundan Singh, and brother of other accused appellants Satyendra Singh and Alam Singh @ Tungi. In village Dhangal Gaon on 26.9.1997, in the evening, they had some quarrel. At 2 8.30 PM, accused-appellant Kundan Singh armed with an axe, accused appellant Alam Singh armed with Sariya (Iron Rod) and accused appellant Satyendra Singh armed with Danda came in the house of Bhagat Singh and gave blows with the arms they were armed with. PW1 Smt. Nanda Devi (wife of Bhagat Singh) and PW2 Manoj Rawat (son of Bhagat Singh) were also present at the time of incident. They witnessed the incident. After hearing shouts, neighbour PW5 Ummed Singh and PW6 Surendra Singh also reached at the spot and saw Bhagat Singh lying in the injured condition. On being asked by them, Bhagat Singh disclosed the name of appellants Kundan Singh, Satyendra Singh and Alam Singh as the persons who caused the injuries to him. Thereafter Bhagat Singh succumbed to injuries and died at 11.00 PM. On the next day i.e. 27.9.1997 First Information Report (Ext. A1), dictated by PW1 Nanda Devi was given to Naeb Tehsildar, Dhoomakote (In Uttarakhand Hills in certain areas, Revenue Officers are given police powers). On the basis of said report, Check First Information Report (Ext. A4) was prepared at Patwari Circle Idiyakot Talla-4 and Crime No. 9 of 1997 was registered against the three accused appellants Kundan Singh and sons Satyendra Singh and Alam Singh relating to offence punishable under Section 302 read with Section 34 IPC. Investigation was taken up by PW7 Om Prakash, who was Patwari of the circle. He went to the spot, took the dead body of Bhagat Singh in his possession and prepared Inquest Report (Ext. A2) on 27.9.1997 at about 3.30 PM. He also got prepared other necessary papers like Sample Seal (Ext. A8), letter to Chief Medical Officer (Ext. A6) requesting him for autopsy, sketch of dead body (A10), Police Form No.13 (A12) etc. and got sent the dead 3 body sent for post mortem examination. PW8 Dr. Mahavir Singh conducted post mortem examination on 28.9.1997 at 2.00 PM and recorded as many as 17 ante mortem injuries in the Autopsy Report (Ext. A15). The Medical Officer opined that deceased had died of Shock and Haemorrhage as a result of ante mortem injuries. After interrogating the witnesses, recovery of the axe and the weapons was made. On completion of investigation, the Investigating Officer submitted charge-sheet (Ext. A14) against three accused namely, Kundan Singh, Satyendra Singh and Alam Singh for their trial in respect of offence punishable under Section 302 read with Section 34 IPC. (4) The Chief Judicial Magistrate, on receipt of the charge-sheet and after giving necessary copies to the accused as required under Section 207 Cr.P.C. committed the case to the court of sessions for trial. On 7.4.1998, learned Sessions Judge, Pauri Garhwal, after hearing the parties, framed charge of offence punishable under Section 302 read with Section 34 IPC against the three accused namely Kundan Singh, Satyendra Singh and Alam Singh. All the three accused pleaded not guilty, and claimed to be tried. On this, prosecution got examined PW1 Nanda Devi (informant, eye-witness and widow of the deceased), PW2 Manoj Rawat (minor son of the deceased and eye-witness), PW3 Tula Ram, who scribed First Information Report (Ext. A1) dictated by Nanda Devi, PW4 Ram Singh, who gave First Information Report to the Naeb Tehsildar, PW5 Ummed Singh, witness of the Inquest Report, PW6 Surendra Singh, neighbour to whom oral and dying declaration was made by the deceased, PW7 Om Prakash, Patwari, who investigated the crime and PW8 Dr. Mahaveer Singh, who conducted post mortem examination. The oral and 4 documentary evidence was put to the accused under Section 313 of Cr.P.C., in reply to which they alleged the same to be false and pleaded that they have been implicated due to enmity. No evidence was adduced in defence. After hearing, all the three accused found guilty of charge of offence punishable under Section 302 read with Section 34 IPC. The parties were then heard on sentence and each of convicts was sentenced to imprisonment for life. Aggrieved by said judgment and order dated 2.4.2002 passed by Sessions Judge, Pauri Garhwal in sessions trial no. 99 of 1997, this appeal is filed by the convicts. (5) Before further discussion, we think it just and proper to mention the ante mortem injuries recorded by PW8 Dr. Mahaveer Singh, who conducted post mortem examination on dead body of Bhagat Singh on 28.9.1997. The ante mortem injuries are being reproduced below from the Autopsy Report:- “(i) Abraded contusion 3cm X 2cm present over the left side of Pinna. (ii) Vertical abrasion of size 3cm X 1cm on outer aspect on right fore hand. (iii) abrasion 3cm X 2cm over right side of chest. (iv) Horizontal abrasion 4cm X 2cm over outer left fore arm (v) Contusion 4cm X 4cm over back of left elbow. (vi) Abrasion 1cm X 1cm over outer aspect of right thigh. (vii) Abrasion 11cm X 1cm over outer aspect of right thigh. 20cm outward and downward from right anterior eliae spine. 5 (viii) Abrasion 1cm X 1cm over anterior aspect of right knee joint. (ix) Vertical lacerated wound 5cm X 2cm bone deep over right shin. (x) Oblique abrasion 2cm X 1cm inner aspect of left leg. 9 cm below knee joint. (xi) 4 lacerated wounds over front of left leg in an area of 9cm X 8cm. (xii) Multiple abrasion 4 in number on the lumber region. (xiii) Abrasion 6cm X 3cm over right thigh above the back of knee joint. (xiv) Abrasion 2cm X 1cm over back of right leg (xv) Abrasion 2cm X 1cm on the anterior aspect over back of the left shoulder. (xvi) Contusion of size 20cm X 15cm over left side of back of chest. (xvii) Abrasion 2cm X 1cm over right side of forehead over right eye (compound fracture seen relating to injury no.11).” (6) On internal examination, the Medical Officer found fracture in rib nos. 4, 5, 6 and 7. He also found Haemotoma 4cm X 3cm over front of chest wall. Pleura was found lacerated. Spleen was found ruptured. PW8 Mahaveer Singh opined in the Autopsy Report that deceased had died of Shock and Haemorrhage as a result of ante mortem injuries. He stated before the court that these injuries could have been caused on 26.9.1997 at about 8.30 PM. He has further stated that injury no.11 could have been caused by the blunt side of the axe. He has further stated that injuries, caused on the person of 6 deceased, were sufficient to cause his death. In the cross- examination, the Medical Officer has stated that injuries like above could be caused by great fall, but there was no mark of earth soil on the injury. The medical evidence discussed above, clearly shows that Bhagat Singh died a homicidal death. Now we have to examine whether accused Kundan Singh (father of the deceased) and accused Satyendra Singh and Alam Singh (brothers of the deceased), with common intention committed murder of Bhagat Singh or not. (7) PW1 Nanda Devi is widow of the deceased, who is an eye-witness of the incident. This witness has stated that her family and family of her father in law along with his two sons used to live in two parts of the same house in the village. She has further stated that on the day of incident at about 6.00 PM, when her husband Bhagat Singh came to the house, he had a quarrel with his father Kundan Singh and brother of the deceased. After some time accused/appellants Kundan Singh, Satyendra Singh and Alam Singh came to her house. They were armed with axe, iron rod and DANDA. She further told that accused Kundan Singh, accused Satyendra Singh and accused Alam Singh assaulted the deceased with axe, iron rod and DANDA. PW1 Nanda Devi further narrated that after hearing shouts, her neighbour Surendra Singh (PW6), Ummed Singh (PW5) and Balbir Singh came there. The witness has further stated that her own children were also in the house. PW1 Nanda Devi stated that after the incident, injured died on the same day. Lastly, she has stated that she dictated First Information Report (Ext. A1) to Tula Ram (PW3). (8) PW3 Tula Ram has corroborated the fact that he scribed the First Information Report (Ext. A1) on 7 dictation of Nanda Devi. PW4 Ram Singh has stated that said report (Ext. A1) was given by him to Naeb Tehsildar on 27.9.1997. (9) The statement of PW1 Nanda Devi gets full corroboration from the statement of her son Manoj Rawat, who was also said to be in the house. This witness is aged 12 years. He has stated that on the day of incident at about 8.30 PM his uncles Satyendra Singh and Alam Singh and grand-father Kundan Singh, assaulted his father. He has specified that his grand father was armed with axe, his elder uncles Satyendra Singh was armed with DANDA (wooden stick) and Alam Singh was armed with iron rod. The presence of this witness and his mother is natural in their house at 8.30 PM in the village. Though they are relatives of the deceased but in view of their natural statements, their testimony cannot be disbelieved. (10) The prosecution evidence further gets corroboration from the statement of PW6 Surendra Singh, who reached at the spot after hearing shouts, soon after the incident. He has stated that when he reached, Bhagat Singh was still alive. On being asked, he (Bhagat Singh) disclosed that he was assaulted by his father Kundan Singh and brother Satyendra Singh and Alam Singh. PW5 Ummed Singh is another witness, who also reached at the spot after the incident, but he says that he could not see who had committed the crime. This witness has proved Inquest Report (Ext. A2) prepared by the Patwari on the next day. (11) As to the light, it has come in the statement of PW6 Surendra Singh and PW1 Nanda Devi that there was electric light in the house. 8 (12) Learned counsel for the appellant argued that there is delay in lodging the First Information Report and the accused/appellants are falsely implicated due to enmity. However, considering the fact that the incident had taken place in the night in a village in hills and First Information Report was registered at the Headquarter of Patwari at a distance of 26 Kilometers on the next day, this Court does not find that delay remains unexplained. (13) Smt. Vijay Laxmi Fartiyal learned counsel for the appellant drew attention of this Court to the minor contradictions in the statement of PW1 Nanda Devi as she pointed out that at one place this witness states that Kundan Singh assaulted with the front side of the axe and at another stage that he assaulted from the blunt side. We do not see that the contradiction is material to disbelieve otherwise truthful story narrated by her. We agree with the observation of the trial court that a witness when examined in the court of law by the legal expert gets nervous and makes such contradictory statements. (14) Having reassessed the entire evidence on record, we do not find any illegality in the impugned judgment and order passed by the trial court, which requires interference by this Court. In our opinion, the appeal is liable to be dismissed. (15) For the reasons as discussed above, the appeal is dismissed. The conviction and sentence recorded under Section 302 read with 34 IPC by the trial court as against appellants Kundan Singh, Satyendra Singh and Alam Singh is affirmed. They are on bail. Their bail is cancelled. 9 (16) Let lower court record be sent back to make appellants Kundan Singh, Satyendra Singh and Alam Singh serve out the sentence awarded by the trial court. (Sudhanshu Dhulia, J.) (Prafulla C. Pant, J.) 27.6.2011 Kuldeep