IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 645 of 2001 (Old No. 604 of 1997) 1. Surjit Singh 2. Jeet Singh Both R/o Matkota, P.S. Rudrapur District Nainital (Now Udham Singh Nagar) ….. Appellants Versus State of Uttar Pradesh (Now State of Uttarakhand) ………. Respondent Present : Sri Siddharhta Sah, Advocate present for the accused appellants. Sri P.S. Bohra, A.G.A. present for the State/respondent. Hon’ble Prafulla C. Pant, J. Hon’ble Nirmal Yadav, J. [Oral : Hon’ble Praffulla C. Pant,J. ] This appeal, preferred under section 374 of the Code of Criminal Procedure, 1973 (for short Cr.P.C.), is directed against judgment and order dated 01.03.1997 passed by Sessions Judge, Nainital, in Sessions Trial No.4 of 1994, whereby the accused appellants Surjit Singh and Jeet Singh (both sons of Chanan Singh) have been convicted under section 148, 302 read with section 149 Indian Penal Code, 1860 (for short I.P.C.). Each of them has been sentenced to rigorous imprisonment for a period of two years under section 148 IPC, and imprisonment for life under section 302 read with section 149 IPC. 2 2. Heard learned counsel for the parties and perused the lower court record. 3. Prosecution story, in brief, is that on 24.08.1993, at about 01.45 p.m., PW-1 Amarjit Singh alongwith his brother Sarjit Singh (deceased) were doing hoeing of Soyabean crop in plot no.11 in village Kopa, Pipal Parao within the limits of police station Rudrapur, through the labourers engaged in the work. PW-2 Jagtar Singh and one Kulvindra Singh were also getting hoeing work done in the adjoining field. PW-3 Chander Singh, a driver of tractor, was also present there. Accused Surjit Singh armed with Sword, Jeet Singh armed with an axe and Amar Singh armed with a gun came there alongwith two others namely Satnam Singh and Puran Singh who were also armed with Patals (a heavy sharp edged weapon). The five accused caught hold of Sarjit Singh and took him towards nearby dam. The aforesaid witnesses followed them and asked them to leave Sarjit Singh but they threatened the witnesses. Near the dam, accused Surjit Singh, Jeet Singh, Satnam Singh and Puran Singh started assaulting Sarjit Singh on instigation of Amar Singh. Sarjit Singh died at the spot. On this PW-1 Amarjit Singh informed about the incident to Vijendra Singh Bisht who had allowed Sarjit Singh and Amarjit Singh to cultivate the field, and thereafter got scribed report (exhibit A-1) 3 through one Harendra Pal and gave at police outpost Dineshpur of police station Rudrapur, at about 07.10 P.M., on the very day. On the basis of said report Crime No.923 of 1993 was registered against accused Surjit Singh, Jeet Singh, Satnam Singh, Puran Singh and Amar Singh relating to the offences punishable under sections 147, 148, 302/149 IPC. The investigation was taken up by PW-6 Station House Officer Om Prakash Singh who proceeded to the place of incident. Inquest report (exhibit A-9) was prepared on 25.08.1993 at about 08.10 A.M. after the dead body was taken into the possession by the police. Sketch of dead body (exhibit A-10), Police form No.13 (exhibit A-11) and letter to Chief Medical Officer (exhibit A-12) were also got prepared and dead body was sent in a sealed condition for postmortem examination. PW-4 Dr. Virnedra Kumar Dixit conducted the postmortem examination on the dead body of Sarjit Singh on 25.08.1993 at about 11.30 a.m. He recorded as many as 15 ante mortem injuries which included 10 incised wounds. The Medical Officer prepared autopsy report (exhibit A-2) and opined that the deceased had died due to shock and haemorrhage as a result of ante mortem injuries suffered by him. During the investigation, the Investigating Officer arrested accused Surjit singh and Amar Singh on 24.08.1993, and accused Jeet Singh on 26.08.1993, and recovered weapons used in the crime. After the interrogation of the witnesses and 4 completion of investigation, the Investigating Officer submitted chargesheet (exhibit A-19) against three accused namely Surjit Singh, Jeet Singh (both sons of Chanan Singh) and Amar Singh S/o Kushal Singh for their trial in respect of the offences punishable under sections 148 and 302/149 IPC. The other two co- accused namely Satnam Singh and Puran Singh were reportedly absconded as such chargesheet could not be filed against them. 4. The Magistrate on receipt of chargesheet, after giving necessary copies to the accused/appellants, as required under section 207 of Cr.P.C., committed the case to the court of Sessions for trial. Learned Sessions Judge, Nainital on 09.02.1994 after hearing the parties, framed the charge of offences punishable under sections 147, 148, 302/149 IPC against three accused Surjit Singh, Jeet Singh and Amar Singh who pleaded not guilty and claimed to be tried. On this, prosecution got examined PW-1 Amarjit Singh (Complainant and eye witness), PW-2 Jagtar Singh (eye witness), PW-3 Chander Singh (eye witness), PW-4 Dr. Virendra Kumar Dixit who conducted postmortem examination, PW-5 Head Constable Ramesh Pal who prepared check report and PW-6 Station House Officer Om Prakash who investigated the crime. 5 5. The oral and documentary evidence was put to the accused under section 313 of Cr.P.C. in reply to which they pleaded the same to be false and further pleaded that they have been implicated due to enmity. The trial court after hearing the parties found all the three accused guilty of the charge of offences punishable under sections 148 and 302 read with section 149 IPC on 28.02.1997. They were heard on sentence, and thereafter vide order dated 01.03.1997, each one of the three convicts was sentenced to undergo rigorous imprisonment for a period of two years (under section 148 IPC) and imprisonment for life (under section 302 read with section 149 IPC). Aggrieved by the said judgment and order dated 28.02.1997/1.3.1997 passed in Sessions Trial No.4 of 1994 by Sessions Judge, Nainital, this appeal was filed by appellants Surjit Singh and Jeet Singh before Allahabad High Court on 07.04.1997 where it was admitted on 08.04.1997. The appeal is received by this Court under section 35 of U.P. Re-organization Act, 2000 (Central Act No. 29 of 2000), for its disposal. (Convict Amar Singh filed a separate appeal No.642/2001 (old No.499 of 1997) which stood abated on 16.11.2009 due to his death during the pendency of that appeal). 6. Before further discussion, we think just and proper to mention the ante mortem injuries suffered by Sarjit Singh (deceased) before his death, which are 6 mentioned in the autopsy report (exhibit A-2) recorded by PW-4 Dr. Virendra Kumar Dixit after postmortem examination on 25.08.1993 at 11:30 a.m. The ante mortem injuries are being reproduced below:- (i) Incised wound 10 cm. x 4 cm. x bone deep on the face extending from forehead to right maxilla and cheek. (ii) Incised wound 12 cm. x 4 cm. on the face left side extending from forehead cutting nostril left side of maxilla and chin, it is bone deep. (iii) Incised wound on the right side of neck, 10 cm. x 4 cm. x bone deep. (iv) Lacerated wound 4 cm. x 3 cm. on the scalp right side 8 cm. above from right ear. (v) Lacerated wound on the scalp 6 cm. x 4 cm. on the left temporal bone, 4 cm. above left ear, it is muscle deep. (vi) Incised wound 14 cm. x 4 cm. x cavity deep on the chest right side, cutting underline sternum third rib and right lung in upper part. (vii) Contusion with laceration 4 cm. x 3 cm. on left side of chest 6 cm. lateral to midline in the fifth intercostal space. 7 (viii) Contusion with abrasion 6 cm. x 3 cm. on the left side of chest, 2.5 cm. below and lateral to injury no. 7. (ix) Incised wound 25 cm. x 10 cm. abdominal cavity deep placed horizontally 2 cm. above the umbilicus, intestine and omentum protruding out from the wound. (x) Incised wound 6 cm. x 3 cm. x muscle deep on the front of left thigh placed vertically 15 cm. above the left knee joint. (xi) Incised wound 12 cm.x 9 cm. x 3 cm. deep on the left upper arm 3 cm. above the elbow joint. (xii) Amputated left index and middle finger, amputated from mid phalenx (xiii) Incised wound 13 cm. x 10 cm. on right upper arm just above the right elbow. Right forearm is amputated from the place of above elbow. (xiv) Incised wound 11 cm. x 10 cm. on the left lower leg amputated, left foot from just above the ankle joint. (xv) Incised wound 11.5 cm. x 10.5 cm. on the right lower leg 4 cm. above the left ankle joints amputating right foot. Amputated right foot is fitting well, skin colour is matching. Tibia and fibula cut through and through. 8 PW-4 Virendra Kumar Dixit has stated that the deceased had died due to shock and haemorrhage as a result of ante mortem injuries. He has further stated that the deceased could have suffered the injuries and died on 24.08.1993 at about 1:45 p.m. From the medical evidence, discussed above, it is established on the record that Sarjit Singh (son of Mahendra Singh), brother of complainant had died homicidal death. Now this Court has to see whether accused appellants, namely, Surjit Singh and Jeet Singh (both the sons of Chanan Singh) formed an unlawful assembly alongwith the Amar Singh, Puran Singh and Satnam Singh armed with deadly weapons, and committed murder of Sarjit Singh son of Mahendra Singh, with a common object. 7. PW-1 Amarjit Singh (complainant and eyewitness), who is brother of deceased, has stated that plot no. 11 of Pipal Padao of Gaon Sabha Kopa was given on “Batai” to them by Vijendra Singh Bisht, who got lease of the said land from the Forest Department. The witness PW-1 Amarjit Singh has further stated that he and his brother had sown crop of Soyabean and on the day of incident they had engaged labourers for getting hoeing in the field. PW- 1 Amarjit Singh further states that at about 1:45 p.m. accused Surjit Singh armed with sword, and accused Jeet Singh armed with axe, came on plot no. 11 along with Satnam Singh, Puran Singh, who were armed 9 with Patal (a heavy sharp edged weapon) and Amar Singh, who was armed with gun. On this the witness (PW-1) raised alarm. They (accused) took Sarjit Singh with them. The witness further states that PW-2 Jagtar Singh, PW-3 Chander Singh and one Kulvinder Singh came there and they also requested the accused to leave Sarjit Singh but the accused forcibly took him with them. According to this witness, he along with other witnesses followed the accused. When accused reached in village Matkota near a dam, they started assaulting Sarjit Singh with the weapons with them. PW-1 Amarjit Singh further stated that while assaulting the deceased the accused were saying that they would not let him cultivate plot no. 11. The witness PW-1 further states that after the incident, he got scribed report (exhibit A-1) through one Harendra Singh and gave it at police outpost Dineshpur. 8. PW-2 Jagtar Singh has also narrated the prosecution story and corroborated the statement of Amarjit Singh (PW-1). In cross-examination he has explained his presence by saying that he was also getting done hoeing in the field on the part he had taken from Vijendra Singh Bisht on “Batai”. 9. The prosecution story further gets corroboration from the statement of PW-3 Chander Singh, who is a driver of the tractor belonging to Vijendra Singh Bisht. This witness has stated that he 10 had taken labour on that day for hoeing in the field for Sarjit Singh (son of Mahendra Singh). 10. The testimony of the three eyewitnesses as discussed above is natural and trustworthy. Their presence at the spot cannot be doubted. It is a daylight incident. There is no material contradiction in the statements of the witnesses, who were cross- examined at length by the defence counsel before the trial court. Even the motive of commission of crime on the part of the accused is explained by PW-1 Amarjit Singh. The statements of the eyewitnesses get fully corroborated from the medical evidence on record. The deceased has been brutally killed as is apparent from the ante mortem injuries, quoted above. 10. Sri Siddhartha Sah, learned counsel for the appellants argued that the report of the Forensic Science Laboratory (exhibit A-3) shows that the bloodstains on the articles and weapons recovered from the accused could not be classified as such it cannot be said that the weapons said to have been recovered from the accused were used in the crime. We have gone through the report (exhibit A-3) received from the Forensic Science Laboratory, Agra in which finding is contained that in the axe and Patal (weapons said to have been recovered from the accused) human blood was found. However, due to 11 disintegration the classification of the blood group appeared to be not possible. Merely for that reason the ocular evidence of the eyewitnesses cannot be discarded or disbelieved. It is not a case of circumstantial evidence. 11. Having reassessed the evidence on record and after considering the submissions of learned counsel for the parties, we do not find any force in this appeal, which is liable to be dismissed. Accordingly, the appeal is dismissed. The conviction and sentence recorded by the trial court against appellants Surjit Singh and Jeet Singh relating to offences punishable under section 148 and 302 read with section 149 I.P.C. is affirmed. The appellants are on bail. Their bail is cancelled. The trial court shall make them serve out the remaining part of sentence awarded against them. Lower court record be sent back. (Nirmal Yadav, J.) (Prafulla C. Pant, J.) JKJ 20.10.2010