Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 218 of 2005 Jeetu and another ...…………. Appellants Versus State of Uttarakhand ...…………. Respondent Mr. T.A. Khan, Advocate, for the appellants. Mr. Amit Bhatt, Addl. Govt. Advocate for the State. JUDGMENT Coram : Hon’ble Barin Ghosh, C. J. Hon’ble U.C. Dhyani, J. Per: U.C. Dhyani, J. This appeal, preferred under Section 374 of the Code of Criminal Procedure, 1973 (for short Cr.P.C.), is directed against the judgment and order dated 26.09.2005, passed by Sessions Judge / II F.T.C., Haridwar, in Sessions Trial No. 403 of 2001, whereby said court has convicted accused / appellants Jeetu and Raju under Section 302 read with Section 34 and 452 of the Indian Penal Code, 1860 (for short I.P.C.), and each one of them has been sentenced to imprisonment for life and also 2 directed to pay a fine of ` 5,000/- under Section 302 read with Section 34 of I.P.C. The accused / appellants have also been sentenced to rigorous imprisonment for a period of three years and also directed to pay a fine of ` 2,000/- under Section 452 of I.P.C. The trial court also directed that in default of payment of fine relating to offence punishable under Section 302 read with Section 34 of I.P.C the accused / appellants shall further undergo rigorous imprisonment for a period of six months and in default of payment of fine relating to offence punishable under Section 452 of I.P.C. each one of the accused / appellants shall further undergo rigorous imprisonment for a period of two months. Both the sentences are directed to run concurrently. 2. We have heard learned counsel for the appellants, learned Addl. Government Advocate for the State and perused the lower court record. 3. Prosecution story, in brief, is that on 13.06.2001, P.W.1 Jitendra Kumar (informant) gave a written report (Ext. Ka-1) to police station Jwalapur, alleging that on 12.06.2001, at about 07:00 A.M., Jeetu and Raju, both sons of his uncle Manphool Singh assaulted his father Tungal Singh, mother Sumitra Devi and brother Jagpal with gandasa (a heavy sharp edged semispherical weapon) and lathi thereby and caused injuries to them, over a dispute relating to drainage of water. On the intervention of villagers they did not lodge the complaint with the 3 police. On 13.06.2001, at night, when informant and his family members were sleeping in their house, Jeetu and Raju, sons of his uncle Manphool, both armed with gandasa (a heavy sharp edged semispherical weapon) entered in their house and suddenly struck many blows with gandasa on brother of the informant (Subhash) who was sleeping. On hue and cry of the injured, his father, mother, brother Jagpal, Smt. Sharmila w/o Jagpal and sister Km. Piyush came there and tried to apprehend the assailants, on which the assailants also struck blows with gandasa on the person of Km. Piyush and injured her. In the meantime, many a persons of their village assembled there and accused Jeetu and Raju succeeded in making good their escape from the scene of occurrence. The informant told the police that said incident took place at 03:30 A.M. in the night. Subhash, brother of the informant, succumbed to his injuries after sometime. His body was lying on the spot. His mother Sumitra Devi, brother Jagpal and sister Piyush have gone to District Hospital, Haridwar for their treatment. On the basis of said FIR, chick report (Ext. Ka-3) was lodged by the police and crime No. 207 of 2001 was registered against the accused / appellants in respect of offences punishable under Section 452, 302, 323 and 324 of I.P.C. on the same day i.e. 13.06.2001. Investigation of the case was taken up by P.W.8 S.I. Jasbir Singh Gilll. After taking the dead body into his possession inquest report (Ext. Ka-7) was prepared. He sent the dead body for postmortem examination. P.W. 5 Dr. P.K. Bhatnagar conducted the 4 postmortem examination on the dead body of Subhash on the very day (13.06.2001), at about 01:20 P.M., and prepared autopsy report (Ext. Ka-2). He recorded four ante mortem injuries and opined that deceased had died of shock and haemorrhage due to ante mortem injuries. The injured was medically examined and memo (Ext. Ka-17) was also prepared in this regard. The Investigating Officer inspected the spot, interrogated the witnesses and prepared recovery memo (Ext. Ka-8) of pieces of blood stained bed sheet and mattress. P.W.8 S.I. Jasbir Singh Gilll took police remand of the accused and on 26.06.2001 on the disclosure made by the accused recovered gandassa (a heavy sharp edged semispherical weapon) used in the commission of crime and recovery memo (Ext. Ka-5) was prepared. He also prepared site plan of the place of incident (Ext. Ka-6) and site plan of place of recovery of weapon (Ext. Ka-18). After completion of investigation, the Investigating Officer submitted charge sheet (Ext. Ka- 19) against accused Jeetu and Raju, for their trial in respect of offences punishable under Section 452, 302, 324, 323 of I.P.C. 4. The Magistrate, on receipt of the charge sheet, after giving necessary copies to the accused as required under Section 207 of Cr.P.C., committed the case to the court of Sessions for trial. On 21.11.2001, learned Sessions Judge, Haridwar after hearing the parties, framed charge of offences punishable under Section 323, 324, 302 / 34 and 452 of I.P.C., against both the accused, to which 5 they pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W.1 Jitendra Kumar (informant and eyewitness), P.W.2 Jagpal (injured eyewitness); P.W.3 Piyush (injured eyewitness); P.W.4 Smt. Sumitra (injured eyewitness and mother of the deceased); P.W.5 Dr. P.K. Bhatnagar (who conducted postmortem examination); P.W.6 H.C. Jagat Singh (who prepared chick FIR); P.W.7 Contsable Satendra Tyagi (witness of preparation of recovery memo of the weapon); P.W.8 S.I. Jasbeer Singh Gilll (who started the investigation); P.W.9 Dr. Suresh Agarwal (who examined injuries on the person of injured Tungal); P.W.10 Dr. O.P. Agarwal (who examined injuries on the person of the witnesses Piyush, Smt. Sumitra and Jagpal); P.W.11. S.O. Kuldeep Singh Aswal (who submitted charge sheet against the accused). The oral and documentary evidence was put to the accused under Section 313 of Cr.P.C., in reply to which they alleged the evidence adduced against them to be false. They pleaded that they have been falsely implicated in the crime. In defence, D.W.1 Smt. Anita (w/o accused Jeetu); D.W.2 Satnam Singh (taxi driver) were produced. After hearing the parties, the trial court found that prosecution has successfully proved charges of offences punishable under Section 452 and 302 read with Section 34 of I.P.C. against both the accused and convicted them accordingly. However, the trial court acquitted the accused from the charge of offences punishable under Section 323 and 324 of I.P.C. giving them benefit of doubt. After hearing on sentence, the 6 convicts Jeetu and Raju were sentenced to imprisonment for life under Section 302 / 34 of I.P.C. and rigorous imprisonment for a period of three years under Section 452 of I.P.C. Fines were also imposed. Aggrieved by said judgment and order dated 26.09.2005, this appeal is preferred by the convicts. 5. It will be worthwhile to take up the ante mortem injuries first which have been recorded by P.W.5 Dr. P.K. Bhatnagar in autopsy report (Ext. Ka-2), prepared by him after postmortem examination on dead body of Subhash on 13.06.2001, at 01:20 P.M. The same are being reproduced below from the autopsy report:- i) Incised wound 14 x 3 cm bone deep 1 cm below right ear transversely placed up to right angle of mouth. ii) Incised wound 13 x 2 cm upper part of neck right side muscle deep, tailing laterally, margins clean cut. iii) Incised wound 12 x 1 cm below injury no. (ii) {1 cm below injury no. (ii)} muscle deep on right side, margins clean cut, tailing laterally. iv) Contusion 6 x 3 cm occipital region. Maxilla and mandible sharply cut. Tongue cut on right side. The Medical Officer recorded in the autopsy report that duration of death was about half day back. In the opinion of the Medical Officer the cause of death was shock and haemorrhage due to ante mortem injuries. The Medical Officer also opined that the death of the 7 deceased could have been possible on 13.06.2001 at about 03:30 A.M. by blow of gandasa. 6. The incident is alleged to have taken place on 12.06.2001 at 7 p.m. and further on 13.06.2011 at 3:30 a.m. The report has been lodged on 13.06.2001 at 6:30 a.m. The distance between the police station and village Ahmadpur Grant where the alleged occurrence took place is about 8 kms. Hence there appears to be no delay in lodging the First Information Report. The said First Information Report has been lodged by Jitendra Kumar against the accused persons Jeetu and Raju for the offences punishable under sections 452, 302, 324 and 323 IPC. The accused persons are thus named in the First Information Report which says that on 12.06.2001 at about 7 p.m. the accused persons Jeetu and Raju sons of Manphool Singh causesd injuries to Tungal Singh (father ), Sumitra Devi (mother) and Jagpal (brother) of the informant Jitendra Kumar with gandasa and lathi. The villagers intervened in the matter and therefore, the police was not reported the matter. Again on 13.06.2001, in the night, when all the people were sleeping in their residences, Jeetu and Raju trespassed into their house having gandasa in their hands and inflicted blow over the informant’s brother Subhash while he was asleep. On hue and cry his father, mother, brother, wife Sharmila and sister Kumari Piyush saw the incident. They tried to apprehend Jeetu and Raju but they inflicted blow on his sister Piyush and injured her. In the meantime, other 8 villagers also came there. Assailants fled away. The occurrence took place at about 3:30 a.m. Subhash died soon thereafter. The dead body was lying over there. Informant’s mother Sumitra Devi, brother Jagpal and sister Piyush had gone to District Hospital, Haridwar for their treatment. 7. In order to prove the prosecution story as many as 11 witnesses have been examined by the prosecution. In order to disprove the crime two witnesses have been examined on behalf of the defence. 8. P.W. 1 Jitendra Kumar has entered into the witness box and has supported the prosecution story in his examination-in-chief. The substance of the examination of chief of the informant Jitendra Kumar is almost the same as in the First Information Report. He has stated that he has submitted a written report and has proved the First Information Report Ext. Ka-1. He has also said that he has seen the incident in the light of electric bulb. In the cross examination P.W. 1 Jitendra Kumar has stated that Chhajju Singh was his grandfather, who had 5 sons viz. Sukkad Singh, Phool Singh, Manphool Singh, Kundan Singh and Tungal Singh. This witness was also put questions regarding the names of sons/daughters of Sukkad Singh, Phool Singh etc. to which he has replied. His eldest brother is Jagpal Singh. The second one was deceased Subhash and he is the 3rd son of his parents. His eldest sister is Sushila followed by Suman, Sushit, Piyush 9 and Sharda Rani. He has no wife. Sharmila Devi is the wife of his elder brother Jagpal. The name of wife of the deceased Subhash is Shakunta Devi alias Chhoti. Shakunta Devi, alias Chhoti after the death of Subhash, has become his wife. Shakunta Devi @ Chhoti was not present at home on the date of occurrence. 9. P.W. 1 Jitendra Kumar has denied the fact that there was love-affair between Shakunta Devi with him and his elder brother Subhash tried to commit suicide earlier on account of this fact. He has also denied the fact that Subhash was murdered because of his alleged love-affair with Shakunta Devi. His neighbours are Jagdish, Jaipal and Manohar, all sons of Nanak. His other neighbours are Mahavir, Pratap, Sher Singh, Vishambher and Arjun. The Investigating Officer has not shown the source of light in his house. An electric pole on the North-South side is however, shown on the road. There is no boundary around the place of occurrence. His house is, in fact, a courtyard (gher). Five cots have been shown in the site plan. One of the cot was occupied by the deceased. The other cots were occupied by his sister Piyush, his mother Sumitra, his father Tungal and his brother Jagpal. The dispute (before this incident took place) on 12.06.2001 was in connection with water in which Raju and Jeetu committed marpeet with his family members. The matter was not reported because of the intervention of the villagers. He has denied the presence of Subhash in the incidence of 12.06.2001. Sumitra Devi, Jagpal Singh and Tungal Singh got injured 10 in the incident of 12.06.2001. He tried to save his brother on 13.06.2001 but he did not receive any injury. There was no blood spot on his clothes. Incident took place on 13.06.2001 at 3:30 a.m. in the morning. Both the accused appellants had gandasa (a heavy sharp edged weapon) in their hands. When he heard the cries, he saw that three blows were inflicted on the person of victim Subhash. His sister Piyush also tried to save her brother. His father Tungal, brother Jagpal, mother Sumitra Devi, sister-in-law (bhabhi) Sharmila also tried to save Subhash. None except Piyush sustained injuries in the process. The villagers Kaliram, Pratap & Ramesh had gone with him to lodged the First Information Report at around 6 a.m. He has written the report of the incident on his own. The pencil /pen was obtained by him from a shop situated outside the Police Station. The investigation of this crime was conducted by S.O. Jasvir Singh Gill. He took his statements, got apprised with the incident, took him to the place of occurrence. Jasvir Singh Gill prepared the site plan at his instance. The incident took place within half a minute. Accused / appellant Jeetu and Raju inflicted blows on Subhash and fled away. The family of Manphool Singh is not residing in the village after this incident. Neither accused Jeetu nor Raju’s family is residing in the village. There is no motive, according to this witness to commit murder of Subhash. He has denied the murder was a culmination of love-affair between him and Shakunta Devi. He has also denied that this was a blind murder in which the accused persons have been falsely implicated. 11 10. There appears to be no infirmity in the statements of this witness. He has fully supported the prosecution version, much less the contents of the First Information Report. Note even single sentence is there in the statement of P.W. 1 Jitendra Kumar which can be said to be averse to the prosecution story. So far as the source of light is concerned the house of the informant is in open courtyard (gher) and there is a lamp post at the adjacent road. The incident took place in the month of June. Normally the people in the villages sleep outside their rooms in summer. During the incident, Kumari Piyush had also sustained injuries. The veracity of this witness cannot be doubted. A doubt was tried to be created by suggesting that the gruesome murder was a culmination of the love-affair between Jitendra and Shakunta Devi. The defence suggestion is an abstract suggestion. If Shakunta Devi had married Jitendra Kumar after the death of Subhash as is usually the case in agrarian society, they are hardly to blame for it. Why will Jitenra or his family members invent the name of the accused persons? Even if we presume for the sake of arguments that there is no motive behind the commission of this murder, it is settled proposition of law that when there is direct evidence the fact of motive goes into the back burner. It goes in the hind ssight. What remains in the forefront is the direct evidence. Why should the court not believe the eye witness ? Why should a prudent man will harp on the hypothesis that the younger brother of the deceased had an 12 affair with his elder brother’s wife during brother’s life time? Had Jitendra harbouring a thought in his mind to kill Subhash, he would not have come to the witness box with such a determined mind as is explicit with the tone and tenor of his oral testimony. The quality of evidence tendered by him shows that he did not harbour any grudge or ill will against his elder brother. All these things were not required to be explained in this judgment, but for hypothetical suggestion put forward on behalf of the accused / appellants. 11. P.W. 2 Jagpal son of Tungal Singh has, in his examination-in-chief, revisited the story as mentioned in the First Information Report. He has said about the incident of 12.06.2001 and subsequently of 13.06.2001 in the intervening night of 12.06.2001 /13.06.2001. He has rightly pointed out in his examination-in-chief that there was an electric pole (lamp post) having a bulb. When at around 3:30 in the night (technically, morning) appellants Jeetu and Raju inflicted blows on his brother Subhash, on hue and cry he saw that they gave fatal blows of gandasa on his brother Subhash. His sister Piyush tried to save her brother inviting wrath of the assailants and they inflicted blow on his sister Piyush also. Shyam Singh and Rajesh came to the spot. Subhash breathed his last on the spot. The reason attributed to the incident of 12.06.2001 is the dispute over water. The report was lodged by his brother Jitendra. He along with his father, mother and sister had come to Government Hospital for treatment. 13 12. In the cross-examination he (P.W. 2 Jagpal ) has admitted that Shakunta /Shakuntala alias Chhoti became Jitendra’s wife after the murder of Subhash, but where does this question of accused lead to? It is nowhere evident from the record that the murder is the culmination of alleged love affair between Shakunta and Jitendra. The appellants cannot be permitted to take benefit of the fact that Shakunta got married to Jitendra after the death of Subhash. Even if we presume for the sake of arguments that there was love affair (not proved on record), it is not the case of the accused that Jitendra murdered Subhash. The suggestion advanced on behalf of the appellants disappears like a thin air. Another suggestion put forth on behalf of the accused / appellants has been denied by P.W. 2 Jagpal to say that Shakunta and Jitendra were caught red handed in comprising position by deceased Subhash. He has also denied that Subhash tried to commit suicide in the past. This witness was also asked questions on the incident of 12.06.2001 and this witness has again satisfactorily replied to the questions asked in the cross-examination. He has denied that there is any land dispute between the sons of his grandfather Chhaju Singh. 13. Elaborating the incident of 13.06.2001, P.W. 2 Jagpal has further stated in the cross-examination that both of the accused inflicted blows on Subhash. Subhash was sleeping at a distance of five steps. He has mentioned the distance between the cots of family members. The accused 14 persons fled away from the scene of occurrence soon after committing the crime. The accused persons had already inflicted blows of gandasa on Subhash by that time. The family members tried to save the victim. Jitendra, Piyush, Sharmila, Tungal and Sumitra Devi were present at the time of incident. Witnesses Shyam Singh and Rajesh did not belong to his village. They belong to Laxar and Manglore instead. Thus we do not find any infirmity in the evidence of this witness also. He is an eyewitness and has been able to withstand the test of cross-examination. He too is a natural witness whose presence on the spot cannot be doubted. 14. P.W. 3 Smt. Piyush w/o Sunder Lal and daughter of Tungal Singh who also sustained injuries in the incident has said in her examination-in-chief that about 2 years back around 7 p.m. a dispute over water arose between father and brother with the accused Raju and Jeetu. Raju and Jeetu had beaten her father Tungal Singh and brother Jagpal and when her mother tried to save them they had also beaten her mother. On the fateful night Jeetu and Raju murdered Subhash. When she tried to rescue her brother, she also incurred their wrath. They inflicted blows on her also causing injuries. She herself had seen the assailants killing her brother and fleeing away from the scene. 15. When this witness was cross-examined, by then she was a married woman. She did not come to depose before the court from her matrimonial home. Her husband 15 was not present in the court. Regarding the incident of 12.06.2001 she said that Jeetu was having a danda and Raju was having gandasa (on 12.06.2001 at 7:00 p.m.). Victim Subhash was not present there on 12.06.2001. The people intervened in the matter and therefore, the day was saved for them. On the fateful night both Raju and Jeetu were having gandasa in their hands. Jeetu inflicted his blow on Subhash. She has definitely seen the gruesome murder. It was she who had tried to save her brother Subhash and she sustained injures on her hand in the same. Her father was sleeping at a little farther. Since she was close to him therefore, she only tried to save him and none else. Raju and Jeetu fled away from the scene. She did not go to the Police Station. She has denied that the real culprits were someone else who killed her brother. 16. In this way, nothing has come out in the cross- examination of this witness who is the real sister of Subhash and who also sustained injuries while saving him. There is a minor variation in the cross-examination of this witness with that of her predecessors, in as much as while she has said that she alone had tried to save Subhash, earlier witness had stated that everybody tried to save Subhash but this fact does not go to the root of prosecution story and therefore, this minor variation does not help the accused / appellants. 17. P.W. 4 Smt. Sumitra Devi has supported the prosecution story in her examination-in-chief. She has 16 elaborated in her ocular evidence, both the incidents of 12.06.2001 as well as 13.06.2001. She is the mother of the deceased. In her cross-examination, she has stated that the accused persons present in the court had killed her son Subhash. Police had arrived at their residence on 13.06.2001 at 10 a.m. Her son Jitendra also accompanied them. When they were sleeping on the fateful night her cot at no. 3. The gandasa by which the accused persons had killed her son is not before her. She was also examined by the Doctor (relating to incidence of 12.06.2001). She has denied the suggestion that the accused persons have been falsely implicated. 18. P.W. 5 Doctor P.K.Bhatnagar was posted as Medical Officer in District Hospital, Haridwar on 13.06.2001. He conducted the postmortem of the dead body of Subhash found ante mortem injuries which have been mentioned at para 5 of the text of this judgment. He has opined that there was semi digested food in the intestine of the deceased who died approx half a day ago because of injuries sustained by him. He has proved his report Ext. Ka-2 and has further opined that the death of the victim is possible on 13.06.2001 with the injuries caused by blows of gandasa. Many a questions were put in the cross-examination of this witness but nothing favourable has come out in favour of the accused / appellants. The Doctor has also answered hypothetical questions, which is nobody’s case. The medical evidence 17