IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 266 of 2002 Bhagwan Singh S/o Sri Amar Singh R/o Village Ettauwa, P.S. Bazpur District Udham Singh Nagar …Appellant Versus State …Respondent With Criminal Appeal No. 231 of 2002 1- Raju S/o Sri Amar Singh R/o Vill. Ettauwa, P.S. Bazpur, District Udham Singh Nagar 2- Bachan Singh S/o Sri Siyan Singh, R/o Tiwwi (Harsan), P.S. Bazpur, District Udham Singh Nagar …Appellants Versus State …Respondent Mr. A.S. Gill, Advocate for the appellants Mr. Amit Bhatt, A.G.A. for the State/respondent Hon’ble B.C. Kandpal, J. Hon’ble Nirmal Yadav, J. Delivered by Hon’ble B.C. Kandpal, J. Both the Criminal Appeals, preferred under Section 374 Cr.P.C., arise out of the same judgment and order dated 04.09.2002 passed by Additional District & Sessions Judge/F.T.C. Kashipur, Udham Singh Nagar, in Sessions Trial No. 414 of 2000, State vs. Bhagwan Singh & others, whereby the learned Sessions Judge convicted the appellant Bhagwan Singh under Section 302 I.P.C. and sentenced him to undergo life imprisonment and to pay a fine of Rs.5,000/- and in default of payment of fine to undergo further rigorous imprisonment for 2 one year. Accused/appellants Raju and Bachan Singh were convicted under Section 302/34 I.P.C. and they have been sentenced to undergo life imprisonment and a fine of Rs.2,000/- and in default of payment of fine to further rigorous imprisonment for six months. 2- Accused/appellant Bhagwan Singh has preferred Criminal Appeal No. 266 of 2002, whereas the two other accused/appellants Raju and Bachan Singh have preferred joint Criminal Appeal No. 231 of 2002. 3- Prosecution story in brief is that on 21.9.2000 at about 8.00 p.m. at Village Ettauwa P.S. Bazpur, District Udham Singh Nagar, accused namely Bhagwan Singh, Raju and Bachan Singh with their common intention committed murder of Kartar Singh by giving him knife injury. Accused Raju and Bachan Singh caught hold of the deceased and Bhagwan Singh committed murder of the deceased by giving him knife injury. The F.I.R. of this incident has been lodged by the complainant Gurdas Singh (PW-1), brother of the deceased, which is Ext.Ka. 1. On the basis of the said F.I.R. Chick F.I.R. was prepared as Ext.Ka.15 and a case was registered against the accused persons under Section 302 I.P.C. The post-mortem examination on the dead body of the deceased was conducted and post- mortem report is Ext.Ka.17. The investigation of the case was entrusted to PW-5 S.I. Rakesh Chandra Thapliyal. On 29.9.2000, on the pointing out of accused Bhagwan Singh, a bloodstained knife used in the commission of murder was recovered in the presence of the witnesses and recovery memo was 3 prepared as Ext.Ka.8. Thereafter, site plan of the incident was prepared by the investigating officer as Ext.Ka.11 and panchayatnama on the dead body of the deceased was also prepared as Ext.Ka.2. After taking bloodstained earth and simple earth from the place of occurrence its recovery memo was prepared as Ext.Ka.3. Thereafter, the statements of the witnesses were recorded. After completion of the investigation, the investigating officer submitted charge sheet (Ext.Ka.14) against the accused persons under Sections 302, 504, 506 I.P.C. 4- The learned Magistrate on receipt of the charge sheet after giving necessary copies to the accused as required under Section 207 of Cr.P.C., appears to have committed the case to the court of Sessions for trial. The learned Sessions Judge after hearing the parties framed charge of offence punishable under Section 302 I.P.C. against accused Bhagwan Singh, whereas he framed charge of offence punishable under Section 302/34 I.P.C. against accused Raju and Bachan Singh. The accused persons pleaded not guilty and claimed to be tried. 5- The prosecution in order to bring home guilt against the accused persons got examined as many as seven witnesses. PW-1 Gurdas Singh, brother of the deceased, is the informant and eyewitness of the case. PW-2 Daleep Singh is the eyewitness and witness of the panchayatnama and recovery. PW-3 S.I. Shyam Narain Mishra is the witness, who conducted the panchayatnama on the dead body of the deceased. PW-4 Mahendra Singh is the witness of 27 Evidence Act and recovery of knife. PW-5 S.I. Rakesh Chandra Thapliyal is the investigating 4 officer of the case. PW-6 Constable Rajendra Pal Singh is the scriber of the F.I.R and PW-7 Dr. Surendra Singh is the witness who conducted the post mortem examination on the dead body of the deceased. 6- The accused/respondents in their statements under Section 313 Cr.P.C. denied the prosecution case and alleged that they have been falsely implicated in the case. However, the accused did not lead any evidence in their defence. 7- The trial court having considered the entire evidence on record and hearing learned counsel for parties found accused/appellant Bhagwan Singh guilty of charge of offences punishable under Section 302 I.P.C. and convicted and sentenced him as mentioned above, vide impugned judgment and order dated 4.9.2002. The trial court further found accused/appellants Raju and Bachan Singh guilty of charge of offences punishable under Section 302/34 I.P.C. and convicted and sentenced them as mentioned above. 8- Feeling aggrieved by the aforesaid impugned judgment and order, accused/appellant Bhagwan Singh has preferred Criminal Appeal No. 266 of 2002, whereas accused/appellants Raju and Bachan Singh have preferred joint Criminal Appeal No. 231 of 2002, which have been placed before us for disposal. 9- We have heard Sri A.S. Gill, learned counsel for the appellants (in both the appeals), Sri Amit 5 Bhatt, learned A.G.A. for the State/respondent and perused the record. 10- Before further discussion, it is pertinent to mention here that post mortem examination on the dead body of the deceased Kartar Singh was conducted on 22.9.2000 at 1.20 p.m. at L.D. Bhatt Government Hospital, Kashipur, by Dr. Surendra Singh (PW-7), who found the following ante mortem injury on his person: (i) Stab wound 3 cm x 1 cm x cavity deep present left side lower part front of chest, just above costal margin. 11- The Medical Officer (PW-7), at the end of post mortem examination, opined in his report (Ext.Ka.17) that deceased had died due to shock and hemorrhage on account of ante mortem injury. He has further opined that the said injury could be caused by the knife on 21.9.2000 at 8.00 p.m. The above evidence of the Medical Officer establishes on record that deceased Kartar Singh was murdered about half to one day before the post mortem examination. Now, this Court has to see whether the accused/appellants, namely, Bhagwan Singh, Raju and Bachan Singh, with the common intention, committed murder of the deceased Kartar Singh. 12- PW-1 Gurdas Singh, complainant, is the eye witness of the case. He has narrated the prosecution story. This witness in his examination- in-chief has stated that the incident is of about one year and five months ago. He had two brothers, out 6 of them Karnail Singh was returning to house from his field and he was having bicycle. On the way, Bhagwan Singh, who is also resident of his village, met to Karnail Singh and forcibly tried to take his bicycle. When his brother refused to give the bicycle, Bhagwan Singh abused his brother Karnail Singh and threatened to kill him. This witness has stated that this incident has taken place 8.00 a.m. On the same day, at 8.00 p.m. when his another brother Kartar Singh was returning from the field and came near the house of Bhagwan Singh, Raju and Bachan Singh on the way, then Bachan Singh and Raju caught hold of Kartar Singh and Bhagwan Singh gave injury to Kartar Singh at his chest by knife. On raising alarm by Kartar Singh (deceased), Jageer Singh and Daleep Singh reached at the spot and challenged the accused. Thereafter, the accused persons ran away from the spot. This witness has further stated that at the time of incident there was source of light as electric bulb on the house of accused Raju on the road and accused were seen by him while accused were catching hold and killing of the deceased. After receiving injuries his brother Kartar Singh died on the spot itself. This witness has stated that accused Raju is the brother of accused Bhagwan Singh, while Bachan Singh is the brother-in-law of accused Bhagwan Singh. He got the F.I.R. written by his brother Karnail Singh and proved the same, which is Ext.Ka.1. This witness was cross examined by the defence at length, but nothing has come out in the cross-examination to shake the testimony of this witness. 13- PW-2 Daleep Singh is the another eye witness, who has fully corroborated the prosecution story, as 7 narrated by PW-1 Gurdas Singh. He has stated that he knows the accused persons, who are also residing at his village. Accused Bachan Singh is the resident of another village and is the brother-in-law of accused Bhagwan Singh. This witness also stated that accused Bhagwan Singh and Raju are the real brothers. This witness has further stated that on 21.9.2000 at 8-9 p.m. when Karnail Singh, brother of the deceased Kartar Singh, was returning to his house from the field, on the way quarrel had taken place between Bhagwan Singh and Karnail Singh over bicycle, which was having with Karnail Singh. Bhagwan Singh was asking for the bicycle from Karnail Singh and on refusal accused Bhagwan Singh abused Karnail Singh and threatened to kill him. This witness has stated that on the same day at 8.00 p.m. in the night when Kartar Singh was returning to his house from the field, on the way in front of house of accused Bhagwan Singh, Raju and Bachan Singh caught hold of Kartar Singh and Bhagwan Singh stabbed at Kartar Singh. This witness has also stated that at the time of incident, he (Daleep Singh), Jageer Singh and Gurdas Singh (PW-1) reached on the spot and they saw and identified the accused in the light of electric bulb. After receiving injury deceased Kartar Singh fell down and died on the spot itself. This witness has also stated that the F.I.R. of this incident was lodged by Gurdas Singh (PW-1) at night on the same day. This witness has further stated that on the next morning, panchayatnama on the dead body of the deceased was conducted in his presence and its recovery memo was prepared as Ext.Ka.2. On 22.9.2000, the investigating officer collected the bloodstained earth and simple earth and prepared 8 its recovery memo as Ext.Ka.3. This witness was cross examined by the defence at length, but nothing has come out in the cross-examination to shake the testimony of this witness. 14- The above two witnesses, namely, PW-1 Gurdas Singh and PW-2 Daleep Singh have proved beyond reasonable doubt that in the night at 8.00 p.m. on 21.9.2000 they saw accused/appellants Raju and Bachan Singh catching hold of the deceased Kartar Singh and accused Bhagwan Singh stabbing at the deceased. The testimony of the aforesaid eyewitnesses is also fully corroborated from the medical evidence. The Medical Officer (PW- 7) Dr. Surendra Singh in his report (Ext.Ka.17) stated that death of the deceased was caused on account of injury no. 1. He has also stated that injury no. 1 could be caused by the knife on 21.9.2000 at 8.00 p.m. He found the injury below the chest and stated that it was likely to cause death of the deceased. Therefore, it is proved that medical evidence also fully corroborates the version of the eyewitnesses as well the entire prosecution case. 15- Learned counsel for the appellants has argued that the First Information Report is ante time. However, on re-assessment of evidence on record, we do not find any reason to hold that the F.I.R. is ante time. The incident had taken placed on 21.9.2000 at 8.00 p.m. and PW-1 Gurdas Singh had lodged the F.I.R. at P.S. Bazpur on the same day i.e. on 21.9.2000 at 10.30 p.m. Therefore, it appears that the F.I.R. was lodged within 2½ hours of the incident and the same appears to be prompt one, as 9 the distance of police station from the place of incident is about 14 kms. Inquest Report (Ext.Ka.2) also shows that it was prepared on 22.9.2000 at 7.00 a.m. There is crime number mentioned in the inquest report, which shows that the F.I.R. had already been lodged by then. Not only this, post mortem examination was conducted by PW-7 on 22.9.2000 at 1.20 p.m. This fact further corroborates that the F.I.R. is not ante time. 16- The next argument advanced on behalf of the appellants is that there was no motive on the part of the accused/appellants to commit the murder of deceased and they had no enmity with the deceased. We do not find any force in the said argument. The prosecution has examined PW-1 Gurdas Singh and PW-2 Daleep Singh, who are the eyewitnesses of the incident. PW-1 Gurdas Singh has stated that prior to the incident quarrel had taken place between the accused Bhagwan Singh and Karnail Singh, brother of the deceased, who objected to forcibly taking his cycle by the accused and at this accused Bhagwan Singh abused Karnail Singh and threatened to kill him. PW-1 Gurdas Singh was told about the incident of morning by his brother Karnail Singh on the same day in the noon. PW-2 Daleep Singh in his cross-examination has stated about abusing and scrambling by the accused with the deceased. This witness has also stated that accused Bhagwan Singh had threatened to kill Karnail Singh and incident of the murder was the result of the same. The testimony of these eyewitnesses is natural and trustworthy and their presence on the place of incident cannot be doubted. However, it is to be noted here that where 10 there is eyewitness account of the incident, motive does not play any important role. Therefore, the motive in this case cannot be said to be irrelevant. We, therefore, find that the accused/appellants had prior motive to commit the offence. 17- The next argument advanced on behalf of the accused/appellants is that there was no source of light at the time of incident and it cannot be said that either PW-1 or PW-2 had any opportunity to see the accused who caught hold and stabbed at the deceased. We do not find any force in this argument also. As to the light in which the witnesses could see the incident, there is enough evidence on record that the incident was seen by PW-1 and PW-2 in the electric light. PW-1 Gurdas Singh has specifically stated in his statement that there was electric light at the house of accused Raju on the road at the time of incident. In the statement of PW-2 Daleep Singh also, it has come that there was an electric bulb as a source of light at the house of Raju, at the time of incident. Further, in the First Information also, source of light (electric light) has been disclosed by PW-1 Gurdas Singh, complainant. The site plan (Ext.Ka.9) prepared by PW-5 Rakesh Chandra Thapliyal also shows the source of light as electric bulb in the pole. Apart from this, it is pertinent to mention here that accused persons were not unknown to the eyewitnesses. In these circumstances, there was no difficulty in identifying the accused persons by the eyewitnesses. 18- For the reasons as stated above, we do not find any sufficient reason to interfere with the conviction and sentence, recorded by the trial court against 11 accused/appellant Bhagwan Singh under Section 302 I.P.C. and accused/appellants Raju and Bachan Singh under Section 302/34 I.P.C. Accordingly, both the appeals are liable to be dismissed. 19- Accordingly, both the appeals are dismissed. The impugned judgment and order dated 4.9.2002 is hereby confirmed. Appellant Bhagwan Singh is in jail. Appellants Raju and Bachan Singh are on bail. Their bail bonds are cancelled and sureties discharged. They shall be taken into custody forthwith to serve out the sentence awarded by the trial court. 20- Let the record be transmitted to the trial court for compliance to be reported to this Court within two months. 21- Let a copy of this judgment be placed in the file of Criminal Appeal No. 231 of 2002. (Nirmal Yadav, J.) (B.C. Kandpal, J.) March 17, 2010 SP