IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL COURT’S ORDER WHETHER THE CASE IS OR IS NOT APPROVED FOR REPORTING [Chapter VIII, Rule 32(2)(b)] Description of case Criminal Appeal No. 755 of 2001 Decided on: March 27, 2008 A.F.R. (Approved for Reporting) Not Approved for Reporting Date 27.03.2008 (Initials of Judge) Note: Bench Reader will attach this at the top of the first page of the judgment when it is put up before the Judge for signature. Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 755 of 2001 (Old No. 685 of 1991) 1. Makhan Singh S/o Inder Singh (since deceased) 2. Arjun Singh S/o Inder Singh 3. Dayal Singh S/o Sahib Singh 4. Jarnail Singh S/o Pritam Singh All Residents of Village Devipura, P.S. Nanakmatta, District Nainital. …………….. Appellants Versus The State …………….. Respondent Mr. Shyam Singh Negi, Advocate for the appellants Mr. Amit Bhatt, Addl. Govt. Advocate assisted by Mr. M.A. Khan, Brief Holder for the respondent-State. Coram: Hon’ble Prafulla C. Pant, J. Hon’ble Dharam Veer, J. [Per Hon. Prafulla C. Pant, J] This appeal, preferred under section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), is directed against the judgment and order dated 30.03.1991, passed by learned I Additional Sessions Judge, Nainital, in Sessions trial No. 48 of 1989, whereby the appellants namely Makhan Singh, Arjun Singh, Dayal Singh and Jarnail Singh are convicted under Section 302 read with Section 34 of the Indian Penal Code, 1860 (hereinafter referred as I.P.C.), and each one of them is sentenced to undergo imprisonment for life under Section 302 read with Section 34 of I.P.C. The accused / appellants are also convicted under Section 201 of I.P.C. and each one is sentenced to undergo rigorous imprisonment for a period of one year on that count. 2) Heard learned counsel for the parties and perused the lower court record. 3) Prosecution story, in brief, is that on 14.09.1988, at about 01:00 P.M., Pappu Singh (deceased) was going in Village Devipur towards Gurudwara when accused / appellants Makhan Singh & Arjun Singh (both sons of Inder Singh), Dayal Singh and Jarnail Singh met him. Accused / appellants Dayal Singh was armed with ‘KANTA’ (pointed weapon having sharp edges near its point with long wooden rod). The other three accused / appellants were armed with ‘Lathies’. The four protested to Pappu Singh as to why he leaves his cattle unattended in the fields. On this, there was exchange of hot words between Pappu Singh and the accused / appellants, where after the four started giving blows with the weapons they possessed, on the person of Pappu Singh. On his raising an alarm, P.W.1 Pritam Singh, P.W. 2 Bhajan Singh, Charan Singh, Mehar Singh and Karnail Singh reached at the spot. They saw that on receiving blows from the accused / appellants, injured Pappu Singh fell down on the ground. When the witnesses tried to intervene, accused / appellants threatened them of dire consequences. The accused / appellants Makhan Singh, Dayal Singh, Jarnail Singh and Arjun Singh, thereafter, took the injured Pappu Singh after loading his body on a bicycle, and went towards the Dam. The witnesses chased the accused, on which they threw the body of Pappu Singh near Kisthi Ghat and flee away towards the forest. P.W. 1 Pritam Singh, thereafter, dictated first information report (Ext. A-1) to P.W. 2 Bhajan Singh. He lodged the first information report on the same day i.e. on 14.09.1988, at about 06:30 P.M., with police station Nanakmatta (Now part of District Udham Singh Nagar). A check report (Ext. A-17) was prepared by Head Constable Jai Prakash and investigation was taken up by P.W. 6 Jagdish Singh Aswal. The investigating Officer went to the spot on 15.09.1988, interrogated Pritam Singh, took the dead body of the deceased in his possession and prepared the inquest report (Ext. A-2), at 08:00 A.M. He further prepared police form No. 33 (Ext. A-4); letter (Ext. A-5) to the In-charge Medical Officer, requesting for postmortem examination; sketch of dead body (Ext. A-6); police form No. 13 (Ext. A-7) and sample seal (Ext. A-8). The dead body was sent in a sealed condition along with necessary papers for postmortem examination through P.W. 5 Constable Pradeep Kumar. The autopsy was conducted by P.W. 4 Dr. J.S Pangti, on 15.09.1988, at 02:30 P.M. The Medical Officer recorded as many as 11 ante mortem injuries on the dead body of the deceased Pappu Singh and opined in his report (Ext. A-3) that the cause of death of the deceased was comma as a result of ante mortem injuries. Meanwhile, the Investigating Officer recovered the ‘LATHIES’ and ‘KANTA’ used in the crime by the accused and prepared memorandum Ext. A-12, of the same. He also prepared site plans (Ext. A-10 & Ext. A- 11) of the place where the dead body was found and the place where blows were given to the deceased. After interrogation, the Investigating Officer submitted charge sheet (Ext. A-16) against all the four accused, for their trial in respect of offences punishable under Section 304 and 201 of I.P.C. 4) The Magistrate, on receipt of 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. Learned II Additional Sessions Judge, Nainital, after hearing the parties, on 07.07.1989, framed charge of offence punishable under Section 302 read with Section 34 and the one punishable under section 201 of I.P.C. against the accused / appellants, namely Makhan Singh, Arjun Singh, Dayal Singh and Jarnail Singh who pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1 Pritam Singh (complainant and eyewitness); P.W. 2 Bhajan Sing (another eyewitness); P.W. 3 Gopal Singh (witness of recovery memo); P.W. 4 Dr. J.S. Pangti (who conducted the postmortem examination and prepared the autopsy report Ext. A-3); P.W. 5 Constable Pradeep Kumar (who took the dead body of Pappu Singh in a sealed cover and guarded the same till the autopsy was done) and P.W. 6 Jagdish Singh Aswal (Investigating Officer). The entire oral and documentary evidence was put to the accused / appellants under Section 313 of Cr.P.C., in reply to which they replied that the evidence adduced against them was false. However, no evidence in defence was adduced on behalf of the accused / appellants. After hearing the parties, the trial court found all the four accused guilty of the offence punishable under Section 302 read with Section 34 of I.P.C. and one punishable under Section 201 of I.P.C. After hearing the parties on sentence, learned trial court sentenced each of the accused / appellants to undergo imprisonment for life under Section 302 read with Section 34 of I.P.C. and rigorous imprisonment for a period of one year under Section 201 of I.P.C. Both the sentences were directed to run concurrently. Aggrieved by said judgment and order dated 30.03.1991, passed by the I Additional Sessions Judge, Nainital, in Sessions Trial No. 48 of 1989, this appeal was preferred by the convicts before the Allahabad High Court on 09.04.1991, where it was admitted on 11.04.1991. The appeal is received by transfer to this Court under Section 35 of the U.P. Re-organization Act, 2000, for its disposal. 5) Before further discussion, we think it just and proper to mention here the ante mortem injuries found on the body of the deceased Pappu Singh at the time of postmortem examination, which are recorded by P.W. 4 Dr. J.S. Pangti, who conducted the postmortem examination and prepared the autopsy report (Ext. A -3). The same are being reproduced below: - i) “Lacerated wound 6 cm X 2 cm over left aspect of head, scalp deep ii) Contusion 6 cm X 4 cm over left temporal region, redish in colour, 2½ cm above left ear, bleeding from left ear present. iii)Contusion 6 cm X 4 cm over upper aspect of right elbow. Redish in colour. iv) Contusion 5 cm X 3 cm over right thigh upper, redish in colour. v) Contusion 6 cm X 3 cm over right knee, redish in colour. vi) Abrasion liner 6 cm X 1 cm over from the right leg. 12 cm below of right knee. vii) Contusion 6 cm X 4 cm over left fore arm at middle. viii) Contusion 6 cm X 3 cm of left leg redish in colour. ix) Contusion 3 cm X 2 cm over from the left leg red in colour. x) Contusion 6 cm X 4 cm over from the left leg redish in colour. xi) Contusion 8 cm X 4 cm on back of elbow redish in colour. The Medical Officer who conducted the post mortem examination has opined that cause of death was comma as a result of ante mortem injuries. 6) There are two eyewitnesses examined on behalf of the prosecution in this case. P.W. 1 Pritam Singh, who is complainant, has stated that on the day of incident, at about 01:00 P.M., Pappu Singh (deceased) was going towards Gurudwara when accused / appellants Makhan Singh, Arjun Singh, Jarnail Singh and Dayal Singh met him. The witness further states that Dayal Singh was armed with ‘KANTA’ and rest of the accused / appellants were armed with ‘Lathies’. P.W. 1 Pritam Singh further states that the accused / appellants protested to Pappu Singh as to why he leaves his cattle unattended. On this, there was a quarrel between them, where after Makhan Singh and Arjun Singh started giving blows on the person of Pappu Singh and accused / appellants Dayal Singh and Jarnail Singh also joined them in giving the lathi blows. According to this witness, accused / appellants did not stop there and took the injured Pappu Singh with them, after loading him on a bicycle. The witness has stated that he and other witnesses namely Bhajan Singh, Mehar Singh and Karnail Singh tried to intervene, but they were threatened of dire consequences. When the witnesses chased the accused / appellants they left the dead body of Pappu Singh near Kisthi Ghat and ran away towards the forest. The witness has proved the first information report (Ext. A-1) lodged by him after getting it scribed by Bhajan Singh. 7) P.W. 2 Bhajan Singh, another eyewitness of the incident has corroborated the prosecution story as narrated by P.W. 1 Pritam Singh. The witness has not only corroborated the fact that accused / appellants Makhan Singh and Arjun Singh gave lathi blows on the person of Pappu Singh and that other two namely Jarnail Singh and Dayal Singh joined them in giving further blows, but also the fact that after the incident, the body of the deceased was taken by the accused / appellants after loading it on a bicycle and that the dead body of deceased was thrown near Kishti Ghat when the accused were chased by the witnesses. P.W. 2 Bhajan Singh further states that he scribed the report on dictation of P.W. 1 Pritam Singh. 8) Both the above witnesses are independent witnesses. Their presence at the scene of occurrence in natural. Incident is daylight one. They had no enmity with the accused / appellants. Their statements are reliable and trustworthy. The first information report is not delayed. And incident gets corroboration from ante mortem injuries mentioned in the autopsy report. 9) Mr. Shyam Singh Negi, learned counsel for the appellants argued that P.W. 1 Pritam Singh says that 8 – 9 blows were given by the accused / appellants on the person of the deceased, while P.W. 2 says 8 blows were given before the deceased fell down on the ground and 7 blows were given thereafter. In this connection, he further pointed out that number of ante mortem injuries found on the person of the deceased are 11 in number, as such, the contradiction between the testimony of the witnesses creates reasonable doubt in the prosecution story as to the manner in which the crime is said to have been committed. We do not find much substance in the argument advanced on behalf of the appellants for the reason that the contradictions pointed out are not material in the facts and circumstances of the case. No one counts the blows numerically at the time of such an incident. Both the witnesses have observed 8 – 9 blows. As to the other blows after the deceased fell down on the ground it is not clear, whether, said blows landed on the body of the deceased, or not? As such, we do not see any reason to doubt the prosecution story on the ground of contradiction pointed out on behalf of the appellants. 10) Next submission made on behalf of the accused/ appellants is that when there were five eyewitnesses, non- production of the three eyewitnesses by prosecution creates a reasonable doubt in the manner offence is said to have been committed. We are unable to accept the submission of learned counsel for the appellants for the reason that it is the quality of the evidence and not the quantity, which is material for reaching the just decision of the case. When number of witnesses have seen the incident and two have sufficiently proved it on record, and their testimony is corroborated by the postmortem examination report and other papers, non- examination of remaining eyewitnesses is not fatal to the prosecution. 11) Thirdly, it is argued that it is not clear that who amongst Makhan Singh, Dayal Singh, Jarnail Singh and Arjun Singh gave what number of blows to the deceased. We do not find much force in this contention also for the reason that when ‘MAAR PEET’ (beating) takes place, and four persons after surrounding a person start giving him blows it is difficult for any person to count simultaneously, who has given what number of blows when they are not giving the blows turnwise. 12) It is also contended on behalf of the appellants that at noon it cannot be believed that the deceased had an empty stomach. In this connection it is pointed out that in the postmortem examination no sufficient semi digested food was found in the stomach of the deceased, as such, the time suggested by the witnesses also appears to be doubtful. We have closely scrutinized the evidence on record and found that it has nowhere been stated by any of the witnesses that the deceased had taken the meals immediately or three hours before the incident. The case of Ram Bali Vs. State of U.P.; (2004) 10 Supreme Court Cases 598, relied on behalf of the accused / appellants, in the above circumstances, does not help them. 13) Lastly, it is submitted that joint recovery of ‘lathies’ from the accused / appellants cannot be accepted in evidence. In this connection, our attention is drawn to the case of Mohd. Abdul Hafeez Vs. State of Andhra Pradesh; AIR 1983 Supreme Court 367. The recovery of the weapons on pointing out of the accused is more relevant in cases of circumstantial evidence. Where there is direct eyewitness account of the incident, even if the evidence on the recovery of ‘lathies’ on pointing out of the accused is discarded, in our opinion, the charge still remains proved from the testimony of the eyewitnesses read with the medical evidence on record. 14) For the reasons as discussed above, we do not find any merit in this appeal, which is liable to be dismissed. The appeal is dismissed. During the appeal, accused / appellant Makhan Singh is said to have been died, as such, his appeal stands abated. The appeal in respect of remaining accused / appellants namely Aruju Singh, Dayal Singh and Jarnail Singh is dismissed. The conviction and sentences awarded by the trial court against the three accused / appellants is upheld. All the three accused / appellants are on bail. Their bail is cancelled. The Registry is directed to sent the lower court record back to the trial court concerned to ensure that the accused / appellants are made to serve out the sentences awarded against them. (Dharam Veer, J.) (Prafulla C. Pant, J.) Dt. March 27, 2008. H.Negi