IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No.223 of 2010 Madan Singh … Appellant Versus State of Uttarakhand & others … Respondent Dated: 22.04.2011 Smt. Pushpa Joshi, Advocate present for the appellant Sri Prabhakar Joshi, Brief Holder present for the State/respondent Coram Hon’ble Prafulla C. Pant, J. Hon’ble Servesh Kumar Gupta, J. Oral: Hon’ble Prafulla C. Pant, J. This appeal, preferred under Section 374 of the Code of Criminal Procedure, 1973 [for short Cr.P.C.], is directed against the judgment and order dated 6.9.2010 passed by Sessions Judge, Pauri Garhwal in Sessions Trial No.20 of 2010 and Sessions Trial No.21 of 2010, whereby the appellant Madan Singh has been convicted under Section 302 of the Indian Penal Code, 1860 [for short I.P.C.] and sentenced to imprisonment for left and directed to pay fine of Rs.25,000/-. He is further convicted under Section 27 of the Arms Act, 1959 and sentenced to rigorous imprisonment for a period of three years and directed to pay a fine of Rs.5,000/-. 2. Heard learned counsel for the parties and perused the lower court record. 3. Prosecution story, in brief, is that Trilok Singh (PW1) is elder brother of the deceased, who lodged the first information report (Ex.A-1) with Naib Tehsildar, Pauri on 10.11.2009 stating that on 8.11.2009 at about 9:00 PM, he was informed by his nephew Satendra Singh (PW2) that his father (appellant-Madan Singh) has killed his mother [Munni Devi- deceased] by firing shots from a gun. (In Rural Hilly Areas of State of Uttarakhand, the Patwaris and certain Revenue Officials are vested with police powers vide U.P. Govt. Notification No.494/VIII-418-16 dated 7.3.1916). On the basis of the said report, revenue police prepared Check 2 Report (Ex.A-8) and registered crime no.38 of 2009 relating to offence punishable under Section 302 IPC and one relating to offence punishable under Section 25 of the Arms Act against the accused Madan Singh. The crime was investigated by P.W.8 Janardan Prasad Gaur, Naib Tehsildar, Pauri Gahrwal. He went to the spot, took dead body of Munni Devi in his possession and at 9:30 AM, prepared the inquest report (Ex.A-3) and other necessary papers, like the letter to Chief Medical Officer requesting for post- mortem examination (Ex.Ka-11), sketch of the dead body (Ex.A-12), Police Form No.13 (Ex.A-13) and sample seal (Ex.A-14). P.W.5 Dr. Sanjeev Kumar Jain conducted post-mortem examination on 10.11.2009 at about 3:15 PM. He recorded two firearm injuries on the body of Munni Devi and opined in the Autopsy Report (Ex.A-6) that deceased had died of shock as a result of ante-mortem injury no.1. The Investigating Officer recovered licensed gun from the place of incident on the very day [10.11.2009]. The license of the gun of the accused Madan Singh [husband of the deceased] was also recovered, which is Ex.A-21 on the record. After inspecting the spot and interrogating the witnesses and on completion of investigation, charge sheets [Ex.A-17 and Ex.A-18] were filed against the accused Madan Singh. Charge sheet Ex.A-17 relates to the offence punishable under Section 302 IPC, and charge sheet Ex.A-18 relates to the offence punishable under Sections 25/27 of the Arms Act. 4. The Chief Judicial Magistrate, Pauri, on receipt of the charge sheets, after giving the necessary copies to the accused, as required under Section 207 of Cr.P.C., committed the cases to the court of sessions for trial. Sessions Trial No.20 of 2010 has arisen out of charge sheet Ex.A-17 and Sessions Trial No.21 of 2010 has arisen out of charge sheet Ex.A-18. 5. Learned Sessions Judge, Pauri Garhwal, on 8.4.2010, after hearing the parties, framed charge of offence punishable under Section 302 IPC against the accused Madan Singh, who pleaded not guilty and claimed to be tried. Separate charge appears to have been framed in respect of offence punishable under Section 27 of Arms Act. Accused Madan Singh pleaded not guilty to the said charge also, and claimed to be tried. On this, prosecution got examined PW1 Trilok Singh (complainant-declared hostile), PW2 Satendra Singh (eyewitness-declared hostile), PW3 Thakur Singh (neighbourer-declared hostile), PW4 Manvendra Singh (police armourer), 3 PW5 Dr. Sanjeev Kumar Jain, who conducted post-mortem examination, PW6 Raghuveer Singh (neighbourer-declared hostile), PW7 Surendra Singh (co-villager-declared hostile) and PW8 Janardan Prasad Gaur, Naib Tehsildar, who investigated the crime. 6. Oral and documentary evidence was put to the accused by the trial court under Section 313 Cr.P.C., in reply to which he admitted that he owns the licence No.4052 of the Gun. He also admitted that the gun was recovered from the place of incident. In his statement under Section 313 Cr.P.C., he also admitted that the recovery memo of the gun was prepared. He has further admitted in his statement under Section 313 Cr.P.C. that his son Satendra Singh gave a ring to his uncle (TAU) on 9.11.2009 about the incident, and first information report was lodged by Trilok Singh with Naib Tehsildar. However, he pleaded that he was not at home and he did not commit any crime. In his further statement recorded under Section 313 Cr.P.C., he admitted that in his house, he along with his wife, mother and son used to live in the village. However, he stated that he does not know how his wife suffered firearm injury. He further stated that he did not kill her. No evidence in defence was adduced. 7. Before further discussion, we think it just and proper to mention the ante-mortem injuries suffered by the deceased, which were found by PW5 Dr. Sanjeev Kumar Jain at the time of post-mortem examination on 10.12.2009 at 3:15 PM. The ante-mortem injuries mentioned in the Autopsy Report (Ex.A-6) prepared by said medical officer are being reproduced below: - 1. “Entry wounds present on lower part right lateral aspect and chest. Circular in shape with abraded collar size 4 cm x 3.5 cm x abraded cavity deep. Scrothing, blackening and tattooing present around the wounds which is 4 cm in width around the wound. Edge of width crenated and whole track and adjacent tissues are pink and there is fracture. 7th and 8th ribs in the wounds at anterior axillary line. On opening the abdomen, right lobe of lower lacerated ant. Blood present in abdominal cavity. Direction of wounds is horizontal. 2. Skin of the medial aspect of right arm just above the right elbow in scrotched in area 6 cm x 5.5. cm. Blackening and tattooing also present in this area. Scrotched area present at lower entry wounds in right side of chest.” 4 8. P.W.5 Dr. Sanjeev Kumar Jain, after post-mortem examination, opined that deceased had died of shock due to hemorrhage as a result of ante-mortem injury no.1. He further stated that the deceased had died about 1½ -2 days before autopsy. In the cross-examination, the witness has ruled out the possibility that the injury found on the person could have been caused accidentally in picking up the gun. From the medical evidence on record, we find that it is established on the record that the deceased had died a homicidal death due to the ante-mortem firearm injury. 9. Now, we have to see whether accused Madan Singh has committed murder of his wife Munni Devi or not and whether he has violated the terms and conditions of licence of the gun possessed by him. 10. P.W.1. Trilok Singh is the complainant, who lodged the first information report (Ex.A-1) stating that his nephew Satendra Singh (PW2) informed him on 8.11.2009 that in the night his mother (Munni Devi) has been killed by his father (Madan Singh) but in the statement before the court, this witness has only admitted his signatures on the first information report but denied the contents of the report. As such, the witness was declared hostile. 11. Similarly, P.W.2 Satendra Singh, son of the deceased and the accused, though stated that on 8.1.2009, he heard the sound of firearm and when went to the room of his mother, he found her lying in an injured condition. The witness further states that he called the villagers and took the deceased to hospital but on her way to hospital, she died. He further stated that he did inform his uncle (TAU) about the incident on phone. However, the witness did not support the prosecution case to the extent that his father and mother quarreled, whereafter the accused shot fire at the deceased. As such, this witness was also got declared hostile by the prosecution. 12. Other three witnesses, namely, PW3 Thakur Singh-neighbourer, PW6 Raghuveer Singh and PW7 Surendra Singh, both co-neighbourers, though admitted that Munni Devi had suffered gunshot injuries and she died on the date of incident, but they have not given any statement that the accused Madan Singh committed the murder. 13. PW3 Thakur Singh, the neighbourer, has stated that when he heard sound of fire, he went to the house of Munni Devi, lying in an injured 5 condition and her son (Satendra Singh) was crying. PW7 Surendra Singh has stated that he was called by Satendra Singh, who informed him that his mother has suffered injury. He is also witness of inquest report, who has proved the same. These three witnesses were got declared hostile, as they did not fully support the prosecution story. 14. PW4 Manvendra Singh is police constable-armourer, who has examined the gun recovered from the spot and prepared the report Ex.A-5. 15. PW8 Janardan Prasad Gaur, the Investigating Officer has stated that after the first information report was lodged, Check Report Ex.A-8 was prepared. Necessary entry in the G.D. was also made. He stated that during investigation, the accused was arrested. The witness further stated that gun found at the place of incident was taken into possession and recovery memo was prepared. The witness has further stated that inquest report and other necessary papers were prepared by him. 16. No doubt, PW1 Trilok Singh, complainant, PW2 Satendra Singh (son of the deceased and eyewitness), PW3 Thakur Singh (neighbour), PW6 Rahguveer Singh and PW7 Surendra Singh, co-neighbors, have turned hostile, as they did not support the prosecution story fully but they partially supported the prosecution case without mentioning that accused committed the crime. The question before us is whether the trial court has rightly convicted the accused Madan Singh even after the aforesaid four witnesses have turned hostile or not. 17. On going through the entire evidence on record, we find that the following circumstances are proved on the record, which prove that it was the accused Madan Singh, who committed the crime. The circumstances, which speak and suggest and complete the chain against the accused Madan Singh, are as under: - 1. Accused Madan Singh did not lodge any report at the police regarding homicidal death of his wife, either on the day of incident or on next day. 2. The incident has taken in the house of accused Madan Singh in the night where he used to live with his wife and family. 6 3. It is also proved on the record that a licensed gun was recovered from the place of incident, and the accused Madan Singh was the licencee of said gun. 4. PW5 Doctor Sanjeev Kumar Jain, who conducted the post-mortem examination, has ruled out the possibility suggested by the defence relating to possibility of accidental fire in picking up the gun by the deceased. 5. It is proved from the autopsy report (Ex.A-6) read with the statement of PW 5 Dr. Sanjeev Kumar Jain that deceased had died of firearm ante-mortem injury suffered by her. 6. Though accused has stated in his statement under Section 313 Cr.P.C. that he was not at home at the time of incident, but it remained unexplained as to what did he do after he came to know of the homicidal death of his wife and where he had gone. 7. The hostile witness (PW2) has attempted to say that his father was working in a school as Mason but said fact is unnatural, as at 9:00 PM, no mason works in any village in hills. Besides, when the father (accused Madan Singh) came to know about the incident, then why he chose to remain absent from the house. 8. The complainant PW1 Trilok Singh is real brother of the deceased and accused had no enmity with him. 9. From the record, it does not appear that deceased had enmity with anyone. 18. On behalf of the appellant, it is argued that motive is completely missing in this case and when the son (Satendra Singh-PW2) of the deceased was also in the house, he too could have killed his mother. Having gone through carefully the evidence of the witnesses, we do not find much force in the argument for the reason had the deceased been killed by her son, there should have been no difficulty on the part of the accused to lodge the first information report against him. 19. Learned counsel for the appellant further submitted that it is unsafe to convict the accused when all the witnesses of fact have turned hostile. Admittedly, PW3 Thakur Singh, PW6 Rahghuvir Singh and PW7 7 Surendra Singh reached in the house of the deceased after the incident, as such they were not in a position to make the statement that who fired the shot. As far as the statement of PW2 Satendra Singh is concerned, since he is the son of the accused Madan Singh, it is natural that sometime after the incident, he might have felt that after he lost his mother, he should not lose his father, who is the accused in the case. The lower court in this regard has rightly stated in paragraph 15 of the judgment that the evidence of the hostile witnesses cannot be disbelieved altogether. This is the settled position of law that the evidence of the hostile witnesses, so far as they support the prosecution case, can be read in evidence. 20. Lastly, it is also pointed out that the investigating officer has not taken the finger print impressions from the gun, which could have led to the fact as to who fired the shot. No doubt, in the present case, there appears negligence on the part of the investigating officer but considering the facts and circumstances of the case, the same does not create reasonable doubt in the prosecution story nor can it be said to be fatal to the prosecution in the present case. 21. For the reasons as discussed above, we do not find any force in this appeal, which is liable to be dismissed. Accordingly, the appeal is dismissed. Impugned judgment and order passed by the Sessions Judge, Pauri Garhwal in Sessions Trial No.20 of 2010 and Sessions Trial No.21 of 2010, recording conviction and sentence against the appellant-Madan Singh is hereby confirmed. Let a copy of this judgment be sent to the Superintendent of the Jail where the appellant is serving out the sentence. Lower court record be sent back. (Servesh Kumar Gupta, J.) (Prafulla C. Pant, C.J.) 22.04.2011 Rdang