IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 954 of 2001 (Old No. 1212 of 1994) Gur Dayal Singh alias Dalla S/o Shri Inder Singh R/o Village Raghulia P.S. Khatima, District Nainital. ….....Appellant. Versus State of U.P. .……….Respondent. Shri Hari Om Bhakuni, learned Amicus Curiae for the appellant. Shri Amit Bhatt, learned Additional Government Advocate and Shri B.S. Parihar, learned Brief Holder, for the respondent. Coram:Hon’ble Prafulla C. Pant, J. Hon’ble B.S. Verma, J. Per:-Hon’ble Prafulla C. Pant, J. This appeal, preferred under Section 374 of Code of Criminal Procedure, 1973 (herein after referred as Cr.P.C.), is directed against the judgment and order dated 20.07.1994, passed by learned Sessions Judge, Nainital, in Sessions Trial No. 308 of 1991, whereby the accused/appellant Gurdayal Singh, has been convicted under Section 302 of Indian Penal Code, 1860 (herein after referred as I.P.C.), and sentenced to imprisonment for life. 2 2. Heard learned counsel for the parties and perused the lower court record. 3. Prosecution story, in brief, is that Udai Singh (deceased) used to work as a servant/labourer of complainant Beer Singh (P.W. 1) in Village Radhuliya within the limits of Police Station Khatima, District Nainital. (now part of District Udham Singh Nagar). On 28.07.1991, Udai Singh had gone to the forest of the village for grazing the cattle of Beer Singh. When he did not return by his normal time, i.e. 3:00 p.m., Beer Singh went in search of Udai Singh towards the forest. When he reached there, he saw accused Gurdayal Singh assaulting Udai Singh with a sword. The incident was also witnessed by Surjan Singh (P.W. 2) and one Khairati, who had also come to the forest for grazing their cattle. Complainant Beer Singh along with aforesaid two witnesses, made attempts to apprehend the accused but he ran away. Udai Singh succumbed to the injuries on the spot. The First Information Report (Ext. A-1) was lodged by Beer Singh (P.W. 1) at about 4:20 p.m. on the very day i.e. 28.07.1991 with reporting outpost Majhola of Police Station Khatima. A crime No. 368 of 1991, was registered against accused Gurdayal Singh, relating to offence punishable under Section 302 I.P.C. The investigation was taken 3 up by Sub Inspector R.S. Khagwal (P.W. 9). After the report was lodged, the police came to the place of incident and took the dead body of deceased in their possession and prepared inquest report (Ext. A-2) on the very day i.e. 28.07.1991, also prepared other necessary papers like sketch of the dead body (Ext. A-13), letter to Chief Medical Officer for post mortem examination (Ext. A-21), and police form No. 13 (Ext. A-10). On the next day i.e. 29.07.1991, the Investigating Officer prepared site plan (Ext. A-14). The post mortem examination was conducted on 29.07.1991 at about 3:00 p.m. by Dr. A.K. Sharma (P.W. 6). The said Medical Officer recorded 12 ante mortem injuries found on the person of the deceased, in the autopsy report (Ext. A-5). The Medical Officer opined that the cause of death was shock and haemorrhage, as a result of ante mortem injuries. During investigation, the Investigating Officer got recovered sword used in the crime by the accused, on his pointing out, and prepared recovery memo (Ext. A-4) in the presence of witnesses Kashmir Singh (P.W. 4) and Avatar Singh (P.W. 5). After completion of the investigation, the police submitted charge sheet (Ext. A-15) against the accused Gurdayal Singh for his trial in respect of offence punishable under Section 302 I.P.C. 4 4. The Magistrate on receipt of the charge sheet, after giving necessary copies, as required under Section 207 Cr.P.C., appears to have committed the case to the Court of Sessions, for trial. Learned Sessions Judge on 18.06.1992, after hearing the parties, framed charge of offence punishable under Section 302 I.P.C. against the accused Gurdayal Singh to which the accused pleaded not guilty and claimed to be tried. On this, prosecution got examined, P.W. 1 Beer Singh (complainant and eye-witness), P.W. 2 Surjan Singh (another eye-witness), P.W. 3 Avtar Singh, S/o Ajayab Singh (scribe of the First Information Report), P.W. 4 Kashmir Singh (in whose presence recovery of sword was made on pointing out of the accused), P.W. 5 Avatar Singh, S/o Sangh Singh (declared hostile), P.W. 6 Dr. Arun Kumar Sharma (who conducted post mortem examination on the dead body of Udai Singh), P.W. 7 Constable Collectar Singh (witness of the inquest report), P.W. 8 Head Constable Bishan Lal (who made entry in the general diary relating to entry of simple soil and blood stained soil taken by the Investigating Officer), and P.W. 9 Sub- Inspector R.S. Khagwal (who investigated the crime). All the evidence including the oral and documentary evidence, adduced by the prosecution, was put to the accused, to which he alleged the same to be false. However, no 5 evidence in defence was adduced. The trial court after hearing the parties, found the accused Gurdayal Singh guilty of charge of offence punishable under Section 302 I.P.C. After hearing on sentence, the trial court sentenced the convict to imprisonment for life. Aggrieved by said judgment and order dated 20.07.1994, passed by learned Sessions Judge, Nainital, in Sessions Trial No. 308 of 1991, appellant Gurdayal Singh, filed this appeal before Allahabad High Court on 12.08.1994, where it was admitted on 16.08.1994. The appeal is received by this Court by transfer under Section 35 of U.P. Reorganisation Act, 2000 (Central Act 29 of 2000), for its disposal. Notices were issued to the appellant, by this Court after the appeal is received by transfer. However, it is reported that he has left the village for some 5 years and his whereabouts were not known, as such, Shri Hari Om Bhakuni, Advocate, is appointed as Amicus Curiae to assist the court on behalf of the appellant. 5. Before further discussions, we think it just and proper to mention ante mortem injuries found on the person of the deceased by P.W. 6 Dr. A.K. Sharma at the time of post mortem examination, who prepared autopsy report (Ext. A-5). The same are being reproduced below:- 6 1. Incised wound 18cm X 6cm X bone deep on the left side of forehead and temple underlying the temporal and frontal bones were fractured. 2. Incised wound 14cm X 1cm X bone deep, just outside the outer ankle of left eye. 3. Incised wound 9cm X 1cm X bone deep on the left cheek. Cheek bone cut. 4. Incised wound 7cm X 1cm X bone deep on the chin, mandible cut. 5. Incised wound 6cm X 1/2cm x skin deep on the left side of the neck, 7cm above the inner end of left collar bone. 6. Abrasion 12cm X 0.2cm on the left side of chest, 4cm below the inner end of left collar bone. 7. Contusion with abrasion 8cm X 5cm on the top of left shoulder. 8. Incised wound 12cm X 1cm on the back of right hand. 7 3rd, 4th and 5th metacarpal bones were cut. 9. Incised wound 3cm X 1cm on the middle of outer aspect of right thigh muscle deep. 10. Incised wound 4cm X 1cm X bone deep on the front of right knee. 11. Incised wound 9cm X 1.5cm X bone deep on the back of right elbow. 12. Incised wound 7cm X 1cm on the front of right hand, 3cm below the right wrist. The Medical Officer opined that cause of death was shock and haemorrhage as a result of ante mortem injuries. The post mortem report (Ext. A- 5) read with the statement of P.W. 6 Dr. A.K. Sharma, who conducted the post mortem examination on the dead body of the deceased, establishes that Udai Singh has died homicidal death. Now this Court has to see whether the accused/appellant Gurdayal Singh has committed murder of Udai Singh or not. 6. P.W. 1 Beer Singh, has stated on oath that Udai Singh was his servant. On the date of the incident, he had gone to jungle to graze the cattle. 8 The witness further narrates that when he did not return at his usual time (3:00 p.m.), the witness went towards jungle and saw that accused Gurdayal Singh giving blows on the person of Udai Singh, with his sword. P.W. 1 Beer Singh further states that on seeing this, he raised alarm and Surjan Singh (P.W. 2) and one Khairati also reached there. The three tried to save Udai Singh from Gurdayal Singh. However, accused Gurdayal Singh succeeded in escaping from the scene of occurrence. Injured Udai Singh fell down and died on the spot. P.W. 1 has further stated that leaving the dead body there, he went to the nearest reporting police outpost of Majhola to lodge the First Information Report. According to this witness, he got scribed the report (Ext. A-1) through Avatar Singh, S/o Ajayab Singh and gave it to the police. P.W. 3 Avatar Singh, S/o Ajayab Singh, corroborated the fact that he scribed the report (Ext. A-1), which was given to the police in his presence. This witness has also corroborated the fact that he accompanied the police to the spot where after taking the dead body in their possession, the police prepared inquest report (Ext. A-2). 7. The eye witness account given by P.W. 1 Beer Singh gets corroboration from the statement of P.W. 2 Surjan Singh. The said witness has 9 stated on oath that at 3:00 p.m. on the date of the incident, he heard shouts and when he went towards the place of incident, he saw accused Gurdayal Singh assaulting and giving blows with a sword on the person of Udai Singh. The testimony of the two eye-witnesses is natural and trustworthy. The First Information Report is lodged promptly without any delay. Inquest report is also prepared by the police on the very day of the incident without wasting time. The injuries mentioned in the inquest report (Ext. A-2) corroborate the injuries mentioned in the post mortem examination report (Ext. A-5) by P.W. 6 Dr. A.K. Sharma. 8. The prosecution story gets further corroboration from the statement of P.W. 4 Kashmir Singh, who has stated that on pointing out of accused Gurdayal Singh, the police recovered the sword used in the crime and recovery memo (Ext. A-4) was prepared in his presence. 9. On behalf of the appellant, learned Amicus Curiae argued that P.W. 2 Surjan Singh belongs to a different district and his presence on the spot cannot be taken to be natural. However, on going through the entire evidence on record, we found 10 that the argument advanced on behalf of the appellant has no force for the reason that not only P.W. 1 Beer Singh but also P.W. 2 Surjan Singh, has explained in his cross examination that though Surjan Singh belongs to District Pilibhit but his village is adjoining to the Village Radhulia (in which the incident has taken place). He has further stated that he was also grazing his cattle in jungle at the time of incident. The distance from the Village of Surjan Singh to the place of incident is said to be 1 Km. As such, the testimony of P.W. 2 Surjan Singh cannot be doubted merely for the reason that he belongs to a bordering district, as the place of incident itself is near the bordering village of Nainital (now part of District of Udham Singh Nagar). Apart from this, we cannot close our eyes to the fact that it has come on the record, in the statement of the witnesses that P.W. 1 Beer Singh and P.W. 2 Surjan Singh had no enmity with accused Gurdayal Singh. It has also come on the record that P.W. 2 Surjan Singh is not related to P.W. 1 Beer Singh. As such, the two eye-witnesses, are not only natural but also independent. 10. It is also contended on behalf of the accused/appellant that even if the prosecution evidence is taken to be true, the act proved against 11 accused appellant Gurdayal Singh constitutes the offence punishable under Section 304 I.P.C. and not under Section 302 I.P.C. However, we do not find any substance in the contention of learned Amicus Curiae for there are as many as 11 injuries caused on the person of Beer Singh and considering the nature and number of injuries, it is evident that accused had intention to commit murder of Udai Singh. 11. Lastly, it is submitted that accused/appellant was minor at the time of incident. However, we do not find any evidence on record, which suggests that accused/appellant was a minor. Not only this, no plea was taken before the trial court that accused/appellant Gurdayal Singh was minor at the time of commission of murder of Udai Singh. 12. Having reassessed the entire evidence on record, and after considering the submissions on behalf of the learned counsel for the parties, for the reasons as discussed above, we concur with the finding given in the impugned judgment and order, passed by the trial court that the prosecution has successfully proved charge of offence punishable under Section 302 I.P.C. against accused/appellant Gurdayal Singh. The 12 sentence awarded by the trial court also does not require any interference. Therefore, this appeal is liable to be dismissed. The same is dismissed. The appellant Gurdayal Singh is on bail. His bail is cancelled. Non bailable warrants against the accused/appellant Gurdayal Singh and notices to his sureties shall be issued to secure his arrest. Lower court record be sent back to the trial court to make the appellant serve out the sentence awarded against him. (B.S. Verma, J.) (Prafulla C. Pant, J.) Dt: 09.09.2008 Sweta 13 14 15 16 17 18