Reserved IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL JAIL APPEAL NO. 10 OF 2007 Virendra Singh Samant @ Rinku S/o Shri Govind Singh Samant R/o Village Aarkani Chauki-Badda, Thana Kotwali – Pithoragarh Distt. – Pithoragarh At present R/o Village Nadanna (Charpur) Thana – Khatima, District U.S. Nagar ………….Appellant. (In Jail) Versus State of Uttaranchal …...…..Respondent. Present:- Mr. J.S. Virk, Advocate (Amicus Curiae) for the appellant. Mr. Amit Bhatt, Additional Government Advocate for the State of Uttarakhand. Coram: Hon’ble Prafulla C. Pant, J. Hon’ble Sudhanshu Dhulia, J. Hon’ble Sudhanshu Dhulia, J. This Criminal Appeal arises out of an order passed by the learned Sessions Judge, Champawat in Sessions Trial No. 14 of 2004, whereby the present appellant/accused has been convicted under Section 302 and under Section 201 of the Indian Penal Code, 1860 (from hereinafter referred to as IPC). He has been sentenced to imprisonment for life under Section 302 IPC, and directed to pay fine of ` 10,000/-. The appellant has been further sentenced to rigorous imprisonment for one year and directed to pay fine of ` 1,000/-. Brief facts of the case as per the First Information Report lodged by P.W.1 Ajay Singh (complainant) before the police station Banbasa, District Champawat are that on 12.5.2004 the father of the complainant, namely, Sri Shatrughan Singh alias 2 Thakur S/o Sri Bachu Singh had taken a contract in village Vamanpur from Sri Govind Singh Samant for preparing food on the occasion of a marriage ceremony. At about 9 O’ clock in the night, when the food was being prepared and the “baratees” were being looked after, the father of the complainant Sri Shatrughan Singh was busy in looking after the guests and seeing that proper arrangements are made. At that time an unknown person approached his father inside the “Pandal” (i.e. a tent) and stabbed him on his chest. His father immediately fell on the ground. P.W. 1 was not present on the spot but the workers of his father who were present, namely, Rajender and Rajesh Maurya informed the complainant about the incident. He immediately took a vehicle and reached the spot along with his neighbours where he was asked to take his father to the hospital at Khatima. His father was immediately taken to the Government Hospital, Khatima where the concerned doctor declared his father dead. It was thereafter reported to the police at 10:45 P.M. that an unknown person stabbed his father, whose body is lying in the hospital and the police may take action in accordance with law. This was the First Information Report. Subsequently, the Investigating Officer reached the spot on 12.5.2004 after 10:45 P.M. and prepared an Inquest Report the next day on 13.5.2004. The post-mortem was conducted on the body of the deceased on 13.5.2004 at about 10:15 A.M. As per the post-mortem report, there was only one ante mortem injury on the body of the deceased which was an incised stab wound size 5 cm x 1.6 cm over frontal chest, between two nipples, edges were clean cut, with tail end. The cause of death has been declared due to shock because of massive internal thoracic haemorrhage. The deceased at the time of death was about 50 years of age. 3 The prosecution presented as many as 10 witnesses. P.W. 1 Ajay Singh alias Bablu who is the informant. Though not an eye-witness this witness is the son of the deceased who has stated as to under what circumstances his father was killed, as he was informed by the other witnesses. According to this witness on 12.5.2004 at 9:00 P.M., P.W. 1 Ajay Singh was at his hotel at Banbasa and his father had gone to the house of Sri Govind Singh Samant to prepare food for wedding of his son, for which his father had taken a contract. Accompanying his father were his employees, namely, Rajender Gupta, Rajesh, Gurudayal, Rakesh and his younger brother Sanju, who all had gone to the house of Sri Govind Singh Samant on the fateful day. On 12.5.2004 at about 9:00 P.M. Rajender Gupta informed P.W. 1 Ajay Singh on phone that his father has been stabbed by a person. He (Ajay Singh) reached the scene of incident and thereafter took his father to Government Hospital at Khatima where the Government doctor declared his father as dead. Thereafter leaving the dead body of his father at hospital, he came to police station Banbasa and lodged a First Information Report. The First Information Report was lodged at 10:45 P.M. According to him, the Inquest Report was prepared the next day at about 9:00 A.M. in which he was one of the “Panchas”. P.W. 2 Gurudayal Singh, P.W. 3 Rajender Gupta, P.W. 4 Sanjay Singh alias Sanju and P.W. 5 Devendra Singh are all eye- witnesses of the incident. They have corroborated the story, as it was stated in the First Information Report. There was no major discrepancy in their statements. P.W.2 Gurudayal Singh in his statement has stated that he used to do the cooking and catering work in marriages and worked for the deceased. He had come to the house of Govind Singh Samant in order to provide his services, as the deceased had taken a contract to prepare food for wedding of the son of 4 Govind Singh Samant. He further states that on 12.5.2004 at about 9:00 P.M., when he along with his companions was preparing and serving the food to the “baratis” there occurred hue and cry – “Maar Diya, Maar Diya”. They rushed to the spot and saw the deceased lying on the ground and the accused running. Information of the said incident was immediately given to the family members of the deceased. P.W. 3 Rajender Gupta in his statement has also stated that he does the work of cooking and catering, and worked for the deceased. On the fateful day he had gone to the house of Govind Singh Samant at Banbasa where the deceased had taken a contract for preparing food on the occasion of wedding of his son. He has also stated that on 12.5.2004 at about 9:00 P.M. when the party was going on and people were dancing, he heard that “Shatrughan Singh Ko Chaku Maar Diya” (Shatrughan Singh has been stabbed by a knife). After hearing the noise, he rushed to the spot where he saw the accused running with a knife in his hand. The deceased Shatrughan Singh was lying on ground. The information of this incident was given by one of the workers to the elder son of the deceased. P.W. 4 who is an eye witness to the incident has stated in his statement that he runs a confectionary and also used to take contract of preparing food. He further stated that on 12.5.2004 there was a contract of cooking and catering at “Bamanpuri”. On the date of incident he had gone to “Bamanpuri” along with his father. This fact was not in the knowledge of his elder brother. For preparing food in the party workers, namely, Rajender Gupta, Gurudayal and Rajesh Maurya (waiter) were present and his father was looking after the arrangement. At about 9:00 P.M. when his father was looking after the catering arrangement and “baratis” were dancing on music, the accused 5 came with a knife and stabbed at his father and ran away from the spot. His father fell on the ground. He and his friend Pappu saw the accused running and they rushed towards the accused to catch hold of him, but in vain. They took the deceased to hospital at Khatima where his father was declared dead by the doctor. This witness further stated that he knew the accused. The accused was in drunken condition and was throwing plates. When his father forbid him from doing so, the accused started abusing his father and pushed him. He further stated that he saw the accused stabbing his father in the evening by a knife and thereafter running from the spot. P.W. 5 Devendra Singh alias Pappu is also the eye- witness of the incident. He in his statement has stated that the incident is of 12.5.2004. He was in need of some money for which he had gone to the shop of Shatrughan Singh at about 8:00 to 8:30 P.M. where Shatrughan Singh was not present. He was told that Shatrughan Singh had gone to a wedding. He thereafter reached at the place of wedding at 8:30 P.M. where he met with Sanjay Singh alias Sanju. The party was going on at the place of wedding and “baratis” were also having meal. The deceased was coming towards the “Pandal”. Suddenly Virendra Singh Samant came there and stabbed at the chest of the deceased by a knife. There occurred a stampede and the accused ran from the spot with his knife. As soon as the deceased was stabbed by knife he fell on the ground. He further stated that the people who were present there tried to catch the accused but the accused escaped. He further states that someone had informed the elder son of the deceased about this incident. The deceased was thereafter taken to the hospital at Khatima where he was declared dead. P.W. 6 Jageshwar Singh, on whose pointing out the weapon used in the murder was recovered, has stated in his 6 statement that on 15.5.2004 at about 5:15 P.M., the Police had detained Virendra Singh Samant in the Police Station. He further stated that the accused told that the knife by which he had murdered Shatrughan Singh, he had thrown on the backyard of the house of Govind Singh Samant and he can recover the weapon from there. He has further stated that the Police took him, Devendra Singh and the accused Virendra Singh Samant near the house of Govind Singh Samant and in the western southern direction of the house of Govind Singh House near Eucalyptus tree, accused Virendra Singh Samant recovered the knife. On the knife were the blood stains. P.W. 7 Dr. Chandraprakash who conducted the post- mortem examination has stated that on 13.5.2004 he was on duty at Community Health Centre, Khatima, Post-Mortem House. On the same day at about 10:15 A.M. the dead body of the deceased was brought by constables of Khatima Police Station, namely Sri Jagdev and Sri Jagdish Singh Bisht. The age of the deceased at the time of post-mortem was around 50 years. This witness has also proved the proved the post- mortem report. PW8 Constable Omkar Singh has proved the original copy of First Information Report as Exhibit Ka-6, Copy of General Diary as Exhibit Ka-7 and Memo regarding the arrest of the accused as Exhibit Ka-8. PW9 Station Officer B.C. Pant is the Investigating Officer. He has stated in his statement that on 12.5.2004 Case Crime No.35 of 2004 was registered against unknown persons under Sections 302 IPC. He himself investigated the matter. The aforesaid case was registered on the report of Ajay Singh (complainant). He went to the spot on the very day where he found the complainant and his friends, who took him to the place of incident. He got the spot sealed and a sepoy was 7 deployed for security reasons. He inspected the place of incident along with the complainant and the witnesses who were present at the spot. He also prepared the site-memo which is Exhibit Ka-10. Simple soil and blood stained soil, and a piece of carpet containing blood and the clothes were taken into possession. Necessary memo of blood stained soil, etc. were prepared and marked as Exhibit Ka-3. On the identification by the witnesses, namely, Devendra Singh and Sanjay Singh the accused was arrested at “Dhanuspul” at “Garhigoth”. After the arrest the statement of accused Virendra Singh Samant was taken. During the course of interrogation on the pointing out of the accused the weapon was also recovered and the memo of recovery was prepared at the site and marked as Exhibit Ka-4. Photograph of the site from where the knife was recovered was also taken. The information of the arrest of the accused was given to his father Govind Singh Samant which regard to which arrest memo was also prepared and marked as Exhibit Ka-8. Statement of Ajay Singh (complainant) and Bharat Singh, Rakesh Kumar, Shankar Lal Verma and Sadik Hussain (all are the witness of inquest report) was taken on 31.5.2004. Examination report from Forensic Science Laboratory, Agra was also received which is marked as Exhibit Ka-20 and Exhibit Ka-21. This witness has further stated that as per the report of Forensic Science Laboratory, human blood was found in Exhibit Ka-4 to Exhibit Ka-7. Counsel for the appellant Sri J.S. Virk submitted stated that P.W. 4 Sanjay Singh alias Sanju is not an eye-witness as he has not been named in the First Information Report. Moreover, being the son of the deceased, he should have carried the deceased to the hospital. This has not been done. Assuming for the sake of arguments that P.W. 4 Sanjay Singh alias Sanju is a chance witness, that does not diminish the story of the 8 prosecution inasmuch as there are other three eye-witnesses to the incident. They had pointed to the accused Virendra Singh Samant in open court and stated that he is the one who had stabbed the deceased. Counsel for the appellant has further submitted that there has been no Test Identification Parade (from hereinafter referred to as TIP). The TIP in the present circumstances was not necessary inasmuch as all the prosecution witnesses (who are eye-witnesses) to the incident have stated that they knew the accused appellant and have stated that he is the one who stabbed the deceased. It has not been the case of the defence before the court below that the assaulter/accused appellant was a “Barati” and from a different place, he was not known to the witnesses. Such question in fact has not been put before this witness during the trial. Therefore, there was no occasion for having a TIP under the facts and circumstances of this case. Lastly, it was argued by the learned counsel for the appellant that there is only one stab wound (size 5 cm x 1.6 cm over frontal chest, between two nipples, edges are clean cut, with tail end) on the chest of the deceased. There is no other ante mortem injury on the body of the deceased and, therefore, it can only be said, if at all, that it is a case of culpable homicide not amounting to murder. The parameter to distinguish a case from culpable homicide not amounting to murder and murder are by now well-settled. Looking at all the factors, we find that it is truly a case of murder and not a culpable homicide not amounting to murder. It is also well-settled that it is not the number of injuries but the quality of injury which matters. Even if there is one single blow but if it is caused by a dangerous weapon on a vital part of the body and it cause death, it would be murder and not culpable homicide not amounting to murder. This is a law right from the decision of the Apex Court 9 in Virsa Singh Vs. State of Punjab IIR 1958 SC 465. We are convinced that there has been an assault on the deceased by the appellant. It was a bodily injury on a vital part of the deceased i.e. on his chest by a knife which caused massive internal thoracic haemorrhage resulting in the death of the deceased. Accordingly, appeal is dismissed. Conviction and sentence awarded by the trial court against accused appellant Virendra Singh Samant alias Rinku is affirmed. Let a copy of this judgment be sent to the Superintendent of jail concerned where the accused/appellant is lodged. The Registry is directed to send back the lower court record. (Sudhanshu Dhulia, J.) (Prafulla C. Pant, J.) 13.06.2011 Avneet