IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL JAIL APPEAL No. 190 of 2005 Chand Baba @ Mohd. Chand .…. Appellant/Accused Versus State of Uttaranchal …………… Respondent Mr. M.C. Pant, learned Amicus Curiae for the appellant/convict. Mr. Nandan Arya, learned AGA for the State/respondent. ……………………… November 7, 2009 Coram: Hon. B.C. Kandpal, J. Hon. Dharam Veer, J. Judgment: Per Hon. Dharam Veer, J. (Oral) This appeal, preferred by the appellant under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.), is directed against the judgment and order dated 24.9.2005 passed by the Additional Sessions Judge/1st F.T.C., Roorkee, District Haridwar in Sessions Trial No. 268 of 2003, State v. Chand Baba @ Mohd Chand, whereby learned Additional Sessions Judge has convicted the accused appellant Chand Baba @ Mohd. Chand under Section 302 of Indian Penal Code, 1860 (for short, IPC) and sentenced him to undergo rigorous imprisonment for life and fine of Rs. 500/-. In default of payment of fine, accused appellant has been directed to undergo one year’s additional R.I. 2. Briefly stated facts of the case are that PW1 Kallan lodged an oral FIR in PS Kotwali Roorkee, District Haridwar with the averments that the accused appellant Chand Baba was his tenant. In the adjacent house of Shamshul, the deceased Banarasi Baba @ Riyajuddin was living as a tenant along with a Bengali lady, viz., Jarina 2 Begum. Chand Baba @ Mohd. Chand and Banarasi Baba @ Riyajudding were quarrelling for the last 3-4 days on the issue of some woman. On 12.6.2003 at about 2 pm, when Banarasi Baba was sleeping in the courtyard, while Jarina Begum was sleeping in the room, the accused appellant, due to the aforesaid enmity, assaulted Banarasi Baba in his ear with an iron chaursi (a tool like screwdriver) when he was sleeping in the courtyard. The iron chaursi stuck in the ear of Banarasi Baba, who started screaming, upon which many people gathered at the place of occurrence. He caught hold of Chand Baba when he tried to escape from the place of occurrence. The police station was informed about the incident from where two constables, viz., Harveer Singh and Sukhpal Singh arrived at the spot and with their help, he and Jarina Begum brought the accused appellant to the police station. The plastic handle of the iron chaursi which was stuck in the ear of Banarasi Baba was deposited by him in the police station. The dead body of Banarasi Baba was lying at the spot. On the basis of the aforesaid oral report lodged by PW1 Kallan, chick FIR Ex. Ka-4 was prepared by Head Constable Smt. Nisha Sharma on 12.6.2003 at 4 pm. Necessary entries were made by her in the GD. Copy of GD is Ex. Ka-5. Investigation of this case was entrusted to PW7 J.S. Pundir, Inspector In-charge. The inquest report of the dead body Ex. Ka-2 was prepared PW8 S.I. B.S. Negi on the directions of the I.O. Along with the inquest report he also prepared the police form no. 13 Ex. Ka-8, Sketch of the dead body Ex. Ka-9 and letter to the CMO, District Govt. Hospital, Haridwar Ex. Ka-10 for conducting the post mortem. The I.O. collected the samples of blood stained soil and plain soil from the spot and fard Ex. Ka-6 was prepared. The dead body was sent for post mortem. Post mortem was conducted by PW5 Dr. P.K. Bhatnagar on 13.6.2003 at 12.45 pm, who prepared 3 the post mortem report Ex. Ka-3. During the course of investigation, the I.O. has taken in his possession the plastic handle of the iron chaursi used in the commission of crime and prepared the fard Ex. Ka-1. During the course of investigation, the I.O. recorded the statements of the witnesses and after completing the investigation filed the chargesheet Ex. Ka-7 against the accused appellant. 3. Learned Special Judicial Magistrate, Roorkee after giving the necessary copies of the documents to the appellant/accused as prescribed under Section 207 Cr.P.C., committed the case to the Court of Sessions on 13.11.2003. Learned Sessions Judge, Haridwar transferred the case to Additional Sessions Judge, Roorkee for its disposal according to law. 4. On 11.12.2003, learned Additional Sessions Judge, Roorkee framed the charge against the appellant/accused under Sections 302 IPC. The charge was read over and explained to the accused appellant, who pleaded not guilty and claimed to be tried. 5. To prove its case, the prosecution has examined PW1 Kallan, the complainant of the case; PW2 Shahil; PW3 Shamim; PW4 Shan Ilahi; PW5 Dr. P.K. Bhatnagar, who conducted the autopsy of the dead body and prepared the post mortem report Ex. Ka-3; PW6 Head Constable Smt. Nisha Sharma, who prepared the chick FIR Ex. Ka-4 and made the necessary entries in the GD, copy of which is Ex. Ka-5; PW7 Inspector In-charge, J.S. Pundir, the I.O. of the case and PW8 B.S. Negi, who prepared the inquest report Ex. Ka-2, police form no. 13 Ex. Ka-8, photo lash Ex. Ka-9 and letter to the CMO for conducting the post mortem Ex. Ka-10. 4 6. Thereafter, statement of the accused appellant was recorded under Section 313 CrPC. The oral and documentary evidence were put to him in question form, who denied the allegations made against him and stated that he has been falsely implicated in the case. However, in defence, he did not produce any documentary or oral evidence. 7. After hearing learned counsel for the parties and after appreciating the evidence available on record, learned Additional Sessions Judge/1st F.T.C., Roorkee vide his judgment and order dated 24.9.2005 convicted and sentenced to the appellant accused as discussed above. Against the aforesaid judgment and order dated 24.9.2005, the convict appellant has preferred the present appeal. 8. We have heard learned Amicus Curiae for the appellant and learned AGA for the State and have carefully perused the entire materials available on the record. 9. Before any further discussion, it would be pertinent to mention here the ante mortem injuries found on the body of the deceased Banarasi Baba @ Riyajuddin at the time of post mortem examination on 13.6.2003 at 12.45 pm, which were recorded by PW5 Dr. P.K. Bhatnagar in the post mortem report Ex. Ka-3 and his opinion about death and its duration and the same are reproduced as below: “A long iron piece seen coming out from front of right ear. On removal of it, incised wound seen 4 cm x 1.5 cm in front of right ear, brain cavity deep. Duration : One to one and half day back. Cause – Shock and haemorrhage due to ante mortem injuries.” 5 10. To prove the aforesaid post mortem report Ex. Ka-3, the prosecution has examined PW5 Dr. P.K. Bhatnagar, who has proved the contents of the same and has stated that the deceased Banarasi Baba died about one and half days’ before the said post mortem was conducted. A long piece of iron was stuck in his right ear. The deceased died due shock and excessive loss of blood from the wound sustained by him. 11. To further prove its case, the prosecution has examined PW1 Kallan, the complainant of the case who has stated that accused appellant Chand Baba was his tenant and deceased Banarasi Baba was tenant in the adjacent house of Shamshul. Both persons were known to each other. Both had quarrelled on the issue of women. One lady was already living with Banarasi Baba. When second lady came in the house of Banarasi Baba, then he told the accused appellant Chand Baba that he would give that lady to him. On the date of the incident at about 2 pm, he saw that an iron chaursi was stuck in the ear of Banarasi Baba and the handle of that iron chaursi was in the hand of accused appellant Chand Baba. Chand Baba was standing over the head of Banarasi Baba. He informed the incident to the police chowki from where two police constables came at the place of occurrence. Accused appellant Chand Baba was forced to stay on the place of occurrence by the people. Then he was taken to the police station. He lodged the report orally in the police station. The handle of the iron chaursi was deposited by him in the police station, which was sealed in the police station and fard was prepared. He also signed on that fard and pulinda. That fard is Ex. Ka-1. The inquest report of the dead body was prepared on the spot and he also signed on that inquest report Ex. Ka-2. After that dead body was sealed and sent for the post mortem. A sealed pulind 6 (bundle) was opened in the court and that pulinda was marked as Ex. 1. He identified the handle of the iron chaursi contained in that pulinda Ex. 1, which was recovered from the hand of the accused appellant Chand Baba was marked as Ex. 2. Two boxes of blood stained soil and plain soil, one Tahmad & string and a blood stained shirt was found in the sealed bundle. 12. PW2 Shahil has stated that on 12.6.2003, he heard that Chand Baba committed the murder of Banarasi Baba. Then he went to the place of occurrence. Police had also reached on the spot. Inspector had prepared the Panchayatnama after appointing the Panches. He also signed on that Panchayatnama. Thereafter dead body was sealed and was sent for post mortem. 13. PW3 Shamim has stated that on 12.6.2003, it was heard in the village that Banarasi Baba was murdered by some other Baba. After hearing this, he also went to the spot. Police had reached there. Inquest report of the dead body was prepared in his presence and he also signed on that. Thereafter dead body was sealed and was sent for post mortem. 14. PW4 Shan Ilahi has stated that Banarasi Baba was murdered on 12.6.2003. On hearing this, he had also gone at the spot. Inspector had prepared the Panchayatnama of the dead body on the spot and he also signed on that. 15. PW6 Head Constable Smt. Nisha Sharma has stated that on 12.6.2003, she prepared the chick FIR Ex. Ka-4 on the oral information of PW1 Kallan. She also made the necessary entries in the GD. Copy of GD is Ex. Ka-5. 7 16. PW7 Inspector J.S. Pundir has stated that on 12.6.2003, he was posted as Inspector In-charge of PS Kotwali Roorkee. Investigation of this case was done by him. S.I. B.S. Negi (PW8) had prepared the inquest report on his directions. The plastic handle of the iron chaursi was taken into possession and fard Ex. Ka-1 was prepared. He inspected the place on the pointing out of PW1 Kallan and collected the samples of blood stained soil and plain soil from the spot and prepared the fard Ex. Ka- 6. During the course of investigation, he recorded the statements of the witnesses and after completing the investigation, he filed the chargesheet Ex. Ka-7 against the accused appellant. 17. PW8 S.I. B.S. Negi has stated that on 12.6.2003, he along with police force reached at the place of occurrence on the information that Banarasi Baba @ Riyajuddin was murdered. He prepared the Panchayatnama Ex. Ka-2 on the directions of S.O. Jasveer Singh (PW7). He also prepared the Police Form No. 13, photo lash and letter to CMO on the spot, which are Ex. Ka-8, Ka-9 and Ka-10 respectively. 18. Thereafter, statement of the accused appellant was recorded under Section 313 CrPC. The oral and documentary evidence were put to him in question form, who denied the allegations made against him and stated that he has been falsely implicated in the case. However, in defence, he did not produce any documentary or oral evidence. 19. Learned Amicus Curiae for the appellant argued that on the basis of the evidence discussed above, the prosecution has failed to prove its case against the accused appellant beyond reasonable doubt and he is 8 entitled to get the benefit of doubt. We do not find any force in the argument of learned Amicus Curiae for the appellant for the reasons discussed below. 20. PW1 Kallan, an eyewitness and the complainant of the case has stated that accused appellant Chand Baba was his tenant and deceased Banarasi Baba was also a tenant in the adjacent house of Shamshul. Both accused and the deceased were known to each other who used to quarrel on the issue of lady. One lady was already living with Banarasi Baba. When second lady came in the house of Banarasi Baba, then he told the accused appellant Chand Baba that he would give that lady to him. On 12.6.2003 at about 2 pm, he reached at the place of occurrence on hearing the cries of Banarasi Baba, where he saw that an iron chaursi was stuck in his ear and the handle of that iron chaursi was in the hand of accused appellant Chand Baba. Chand Baba was standing over the head of Banarasi Baba. He informed the incident to the police chowki from where two police constables came at the place of occurrence. Accused appellant Chand Baba was caught hold on the spot when he tried to run away from there. Then he was taken to the police station. He also identified the weapon used in the commission of crime. This witness was cross-examined at length by the defence counsel but he could not be shaken. 21. The presence of PW1 Kallan on the place of occurrence appears to be natural as the accused appellant Chand Baba was his tenant and the deceased Banarasi Baba was also a tenant in the adjacent house. The deceased Banarasi Baba cried when the accused appellant assaulted him with the said iron chaursi and on hearing his cries, PW1 Kallan immediately reached at the spot. He has clearly stated that when he reached there, he saw that 9 the accused appellant was standing over the head of the deceased and the plastic handle of that iron chaursi was in the hand of the accused appellant, while the iron chaursi was stuck in the ear of the deceased. Many people had gathered there. 22. The motive behind the commission of crime is also clear. The deceased was living with a lady, viz., Jarina Begum. Another lady also came in the house of the deceased. The deceased and the accused appellant were quarrelling for the past few days on the issue of the lady. As such, they were not at good terms with each other and due to the enmity the accused appellant assaulted the deceased Banarasi Baba @ Riyajuddin in his ear with an iron chaursi when the deceased was sleeping in the courtyard, which resulted into his death. 23. The ocular evidence adduced by the prosecution is also supported by the medical evidence. The post mortem of the dead body was conducted by PW5 Dr. P.K. Bhatnagar on 13.6.2003 at 12.45 pm, who prepared the post mortem report Ex. Ka-3 wherein it has been recorded that a long iron piece was seen coming out from the right ear of the deceased, on removal of which a brain deep incised wound 4 cm x 1.5 cm was found. The deceased died due to shock and haemorrhage on account of the ante mortem injuries and the duration of death was one to one and half day’s back. Thus, the case of prosecution is supported by the medical evidence. 24. It is also important to note here that the said incident happened at around 2 pm on 12.6.2003 and it was reported immediately at 4 pm on the same day. The police station was situated at a distance of nearly seven 10 kilometers from the place of occurrence. Thus, the FIR is also prompt. 25. For the reasons recorded above, we are clearly of the opinion that the prosecution has succeeded in establishing its case against the accused appellant beyond any shadow of doubt and we are in total agreement with the view and the findings recorded by the learned trial court. Therefore, the conviction of the accused appellant under Section 302 IPC is justified and sentence awarded to the accused appellant is commensurate with the offence committed by him. 26. In the result, the appeal being devoid of merit is hereby dismissed. Judgment and order dated 24.9.2005 passed by the Additional Sessions Judge/1st F.T.C., Roorkee in Sessions Trial No. 268/2003, State v. Chand Baba @ Mohd. Chand., thereby convicting the accused appellant under Section 302 IPC is upheld and sentence awarded to him to undergo rigorous imprisonment for life and fine of Rs. 500/-, in default to undergo additional R.I. for one year is hereby also affirmed. 27. A copy of this order be sent to the trial court for its compliance. Let the lower court record be sent back. (Dharam Veer, J.) (B.C. Kandpal, J.) 07.11.2009 07.11.2009 Prabodh