IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Government Appeal No. 1298 of 2001 State of Uttarakhand ...…………. Appellant Versus 1. Shyam Singh 2. Chandar Singh Both sons of Fajju R/o Village Madarshu Binhar Patti, Halkata Patthan Khat, Tehsil Chakrata, P .S. Vikas Nagar, Dehradun. ...…………. Respondents Mr. Nandan Arya, Asstt. Govt. Advocate along with Mr. M.A. Khan, Brief Holder, present for the State / appellant. Mr. Sandeep Tandon, Advocate, present for the respondents / accused. Coram : Hon’ble Prafulla C. Pant, J. Hon’ble Sudhanshu Dhuila, J. Hon. Prafulla C. Pant, J (oral) This appeal, preferred under Section 378 of the Code of Criminal Procedure, 1973 (for short Cr.P.C.), is directed against the judgment and order dated 2 06.01.2001, passed by Sessions Judge, Dehradun, in Sessions Trial No. 61 of 1994, whereby accused / respondents Shyam Singh and Chandar Singh are acquitted of the charge of offence punishable under Section 302 of the Indian Penal Code, 1860 (for short I.P.C.). 2) Heard learned counsel for the parties and perused the lower court record. 3) Prosecution story, in brief, is that P.W. 1 Guman Singh gave a report (Ext. A –1) at police outpost Dak Pathar, Dehradun, on 07.10.1993, at about 11:45 A.M., against accused / respondents Shyam Singh and Chandar Singh, complaining that on said day (07.10.1993) at about 09:00 A.M., complainant’s father Thepru was ploughing his field in Village Dungeli. Accused / respondents Shyam Singh and Chandar Singh, both sons of Fajju, who are cousins of the complainant, came there and objected to ploughing the field by Thepru. The two accused asked Thepru (deceased) not to plough the field as litigation between them is going on in a court. Thereafter, the two accused attacked Thepru. Shyam Singh, armed with ‘PHALI’ (ploughing blade), and Chandar Singh, armed with a rod (Danda), assaulted Thepru several times, who fell down on the ground, and succumbed to the injuries in the adjoining field of one Darshan Singh. Before the deceased succumbed to injuries, Chander 3 Singh kicked Thepru on his legs and private parts. P.W. 1 Guman Singh (complainant) was there with his father Thepru. In the first information report (Ext. A-1) it is also mentioned that soon after the incident Ranjor Singh (son of Darshan Singh) and Bishambar Singh also came there, where after the accused / respondents Shyam Singh and Chandar Singh ran away. On the basis of said report Crime No. 61 of 1993 at the police outpost Dak Pathar, and Crime No. 368 / 61 of 1993 was registered at police station Vikas Nagar (as the outpost was part of said police station) relating to offence punishable under Section 302 of I.P.C. against accused / respondents Shyam Singh and Chandar Singh. The investigation was taken up by Sub Inspector R.S. Rawat (since deceased) who went to the spot, took the dead body in his possession, and got prepared inquest report (Ext. A –4). The Investigating Officer further got prepared sketch of the dead body (Ext. A –5), sample seal (Ext. A –6), police form No. 13 (Ext. A – 10), and letter to the Chief Medical Officer (Ext. A –9) requesting for postmortem examination. P.W. 8 Dr. Kuldeep Dutta conducted postmortem examination on 08.10.1993, at about 03:30 P.M. He recorded as many as ten ante mortem injuries, and opined that the deceased had died of shock and haemorrhage, as a result of ante mortem injuries. The Medical Officer prepared autopsy report (Ext. A–19). The Investigating Officer interrogated the witnesses, and prepared site plan (Ext. A –11). On completion of investigation, the 4 Investigating Officer submitted charge sheet (Ext. A – 16) against the two accused Shyam Singh and Chandar Singh, for their trial in respect of offence punishable under Section 302 of I.P.C. 4) On receipt of the charge sheet, the Magistrate 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. Learned Sessions Judge, Dehradun, on 09.02.1995, after hearing on charge, framed charge of offence punishable under Section 302 of I.P.C., against the two accused / respondents, namely Shyam Singh and Chandar Singh, who pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1 Guman Singh (complainant and eyewitness); P.W. 2 Balwant Singh (scribe of the FIR); P.W. 3 Sardar Singh (declared hostile); P.W. 4 Shamsher Singh (a witness who reached at the spot soon after the incident); P.W. 5 Darshan Singh (declared hostile); P.W. 6 Sub Inspector Dheeraj Mani Baloni, who proved handwriting of Sub Inspector R.S. Rawat, Investigating Officer (since deceased); P.W. 7 Constable Ashok Kumar (who took the dead body in a sealed condition for postmortem examination), and P.W. 8 Dr. Kuldeep Dutta (who conducted postmortem examination). The oral and documentary evidence was put to the accused under Section 313 of Cr.P.C., in reply to which they alleged that evidence against them was given due to enmity. In 5 defence, D.W. 1 Chandan Singh, D.W. 2 Gopal Singh and D.W. 3 Mohan Singh were got examined. The trial court, after hearing the parties, found that the accused persons have been falsely implicated in the case, and acquitted them from the charge of offence punishable under Section 302 of I.P.C. Hence, this appeal, with the leave of the court. 5) Before further discussion we think it just and proper to mention here the ante mortem injuries found on the dead body of the deceased by P.W. 8 Dr. Kuldeep Dutta, at the time of postmortem examination, on 08.10.1993. The ante mortem injuries are reproduced from autopsy report (Ext. A –19), as under: i) Lacerated wound 3 cm X 1.5 cm on the back of head on right side 2 cm behind right ear. ii) Incised wound 3 cm X 1 cm X bone deep 6 cm above the right eyebrow. iii) Incised wound 2.5 cm X 0.75 cm X bone deep on the top of head. 10 cm above left ear. iv) Incised wound 3 cm X 1 cm X bone deep 2 cm behind injury No. (iii). v) Punctured wound 1 cm X 0.5 cm X muscle deep round in shape on the base of nose just below right eye. vi) Multiple abraded contusions in an area of 14 cm X 10 cm over back of right shoulder and scapula. 6 vii) Contusion 8 cm X 2.5 cm linear on the back of left forearm. viii) Contusion 6 cm X 3 cm longitudinal place at back of right forearm. ix) Fracture in 4th, 5th, 6th and 7th ribs on right side. x) Fracture of all the five fingers at the inter- phalangeal joints of right hand. P.W. 8 Dr. Kuldeep Dutta after postmortem examination observed in the autopsy report that the deceased had died due to shock and haemorrhage as a result of ante mortem injuries. In his statement the Medical Officer stated that deceased could have died on 07.10.1993, at about 09:00 – 09:30 A.M. He further stated before the trial court that injury No. (i) could have caused by pointed object, and injury No. (ii), (iii) and (iv) could have been caused by sharp cutting object. From the evidence of P.W. 8 Dr. Kuldeep Dutta read with autopsy report, it is established on the record that Thepru has died a homicidal death on 07.10.1993. Now, we have to see whether the trial court has erred in law in holding that the prosecution has failed to prove charge of offence punishable under Section 302 of I.P.C. against the two accused, or not. 6) P.W. 1 Guman Singh (complainant) has stated that Thepru (deceased) was his father. He has further stated that Thepru had agricultural land in village 7 Dungeli, which is about 3-4 kms. away from his village Madarshu. The witness further states that one Dutt Ram was his grandfather. Name of brother of his grandfather was Moti Ram. Fajju (father of the two accused / respondents) was son of Moti Ram. The witness further states that in the revenue record the land in village Dungeli was recorded in the name of Thepru, but the accused / respondents claimed ownership over said land due to which a litigation was pending in the court of Tehsildar. P.W. 1 Guman Singh further states that on the day of incident, at about 09:00 A.M., he and his father Thepru (deceased) were ploughing the field in village Dungeli, when accused / respondents Shyam Singh and Chandar Singh reached there, and objected to ploughing of the field on the ground that the litigation is pending in the court. Thereafter, according to this witness, the accused Chandar Singh, armed with rod (DANDA), and accused Shyam Singh, armed with ploughing blade (PHALI-SARIYA), started assaulting Thepru. P.W. 1 Guman Singh further states that several blows were given by the two accused on the head of Thepru. The witness has explained that ‘PHALI’ was long, but on the sides it was flat and edged. According to P.W. 1 Guman Singh, after receiving injuries, Thepru fell down on the adjoining field of Darshan Singh, and there also the accused kept on assaulting the deceased. P.W. 1 Guman Singh told the court that one Bishambar Singh and Ranjor Singh came at the spot, and accused ran away. The witness has 8 further stated that he got lodged first information report (Ext. A –1) at the police outpost Dak Pathar, after getting it scribed through Balwant Singh (P.W. 2). P.W. 2 Balwant Singh has corroborated the fact that he scribed report (Ext. A –1) on dictation of Guman Singh. 7) Through the prosecution story has been narrated in detail by P.W. 1 Guman Singh, eyewitness and son of the deceased, but the trial court has disbelieved his statement and gave a finding that to grab land of Thepru, the complainant has falsely implicated his cousins accused / respondents Shyam Singh and Chandar Singh. In support of said conclusion, the trial court has observed that within three days of death of the deceased, complainant moved an application for mutation of his name in place of Thepru. It is argued on behalf of State / appellant that the trial court has erred in law in discarding the natural testimony of the eyewitness. It is further contended that the findings of the trial court are based on conjectures and surmises. On the other hand, learned counsel for the respondents / accused submitted that it was complainant Guman Singh who committed murder of Thepru, and falsely implicated the respondents. Our attention is drawn to the pedigree by which the accused and respondents are related, which is on the lower court record, and the same is being reproduced below: 9 Budh Ram (died 1900) Veeru Mithnu (died 1920) (died without any legal heir in 1934) Thellu Ram Shiv Ram Moti Ram Dutt Ram (died 1914) (died 1917) (died 1916) (died 1964) daughter Deva daughter Keso daughter daughter Atri Devi Vibhni Devi Fajju (died in 1953) Thepru Devi Ram (murdered on 07.10.93) Raj Pal Singh Kabul Singh Guman Singh (P.W.1) complainant Shyam Singh Chandar Singh Bhagwan Gaje (accused) (accused) Singh Singh 10 Referring to abovementioned pedigree, it is submitted that Thepru is not father of P.W. 1 Guman Singh, but name of his father is Devi Ram. In this connection, we examined the evidence on record and found that in Para 17 of his statement, P.W. 1 Guman Singh has stated that name of his mother is Chamko. He has further stated that he belongs to Jaunsar Babar area where there is custom of polyandry. He has further stated that Chamko was married to both the brothers Thepru and Devi Ram. The custom of polyandry has been further corroborated by P.W. 4 Shamsher Singh in Para 11 of his statement in which he has stated that both brothers accused Shyam Singh and Chandar Singh are married to one woman Godi Devi. As such confusion attempted to be created regarding parentage of P.W. 1 Guman Singh is without force. 8) P.W. 4 Shamsher Singh, who is a postman, has stated that he reached village Dungeli soon after the incident. He has stated that on 07.10.1993, at about 09:30 A.M., when he reached near Dungeli, he saw accused Shyam Singh, armed with PHALI, going briskly downward, on which he asked him as to what had happened. According to the witness (P.W. 4), Shaym Singh replied that Thepru was ploughing his field due to which he had a quarrel with him and thereafter, Shaym Singh went towards upper Dungeli. In Para 5 of his statement, P.W. 4 Shamsher Singh further states that about 10 –15 yards behind Shyam 11 Singh, Chandar Singh was following him. In Para 7 of his statement this witness (P.W. 4) states that thereafter he saw Guman Singh crying over dead body of Thepru. In our opinion, the statement of P.W. 4 Shamsher Singh corroborates the testimony given by P.W. 1 Guman Singh. The ante mortem injuries quoted above further corroborate the statement of P.W. 1 Guman Singh (complainant and eyewitness). Having gone through the evidence on record, we find that the trial court has ignored the important medical evidence and oral testimony of the eyewitness, and swayed by the fact that complainant had attempted to get mutated his name in the revenue record. 9) No doubt, P.W. 3 Sardar Singh and P.W. 5 Darshan Singh have turned hostile, but they are not the eyewitnesses. They are the witnesses relating to the fact that during investigation simple soil and blood stained soil was taken from the place of incident. Apart from this, neither the soil was sent for chemical examination, nor is there any report of the Forensic Science Laboratory, as such, turning hostile of P.W. 3 Sardar Singh and P.W. 5 Darshan Singh doesn’t create any doubt as to the natural narration of the ocular version given by P.W. 1 Guman Singh. 10) On behalf of accused / respondents it is also submitted that the first information report is ante timed, and the inquest report is also not prepared at the place 12 shown in said report. Check report (Ext. A –3) of first information report read with copy of extract of General Diary (Ext. A –2) shows that the first information report was lodged at the police station at 11:45 A.M. (on 07.10.1993). The inquest report (Ext. A –4) shows that it was prepared at about 03:15 P.M. to 04:30 P.M. (on 07.10.1993). P.W. 2 Balwant Singh has stated that the complainant got scribed the report from him at about 11:00 A.M. Considering all these facts together, we do not find that the first information report was ante timed. Though, P.W. 1 Guman Singh has stated in the cross- examination that he stayed at the place of incident for about two hours after the incident, and thereafter it took him time to reach police outpost after getting the report scribed, but his statement in cross-examination has to be read with other evidence on record on the point, to come to the right conclusion. 11) The trial court has given emphasis to the point that Ranjor Singh, who is named as witness in the first information report, was not examined by the prosecution. But, in our opinion, the trial court has given undue importance to said fact as it is nobody’s case that in the presence of Ranjor Singh, deceased was attacked by accused / respondents Shyam Singh and Chandar Singh. He is said to have reached immediately after the deceased was assaulted. 13 12) D.W. 1 Chandan Singh has stated that when he heard that Thepru has been killed, he went to his field and saw his dead body. He has further stated that when he came back to his flourmill, Shyam Singh was there. This witness has attempted to shield the accused / respondents under the plea of alibi, but his statement appears to be highly doubtful. D.W. 1 Chandan Singh belongs to village Manihar. In cross-examination he admits that he belongs to Tehri Garhwal. There is no suggestion to P.W. 1 Guman Singh or to P.W. 4 Shamsher Singh that accused were in the flourmill of Chandan Singh. 13) D.W. 2 Gopal Singh states that at about 09:00 - 09.15 A.M., on the day of incident, accused Shyam Singh and Chandar Singh came to his shop and told him that they are going to the police station to get lodged the report, as Thepru has been murdered. But, this witness does not disclose against whom the accused Shyam Singh and Chandar Singh were going to lodge the report. D.W. 3 Mohan Singh has stated that the Post Office Madarshu opens at 08:00 A.M. and gets closed at 10:00 A.M., where after again it opens at 03:00 P.M. and closes at 04:00 P.M. He has stated that the post is given at about 10:00 A.M. for being distributed. Probably this witness has been produced on behalf of the defence in reply to the statement made by P.W. 4 Shamsher Singh, a postman, who has stated that at 09:30 A.M., he reached village Dungeli to 14 distribute the post. In our opinion, the statement of D.W. 3 Mohan Singh does not shake the testimony of P.W. 4 Shemshar Singh, who has simply stated that soon after the incident he reached at the spot and saw Shyam Singh and Chandar Singh, as mentioned above. 14) Having re-assessed the entire evidence on record, we find that the finding of the trial court that complainant has falsely implicated the accused / respondents Shyam Singh and Chandar Singh to grab the land of Thepru, is based on mere conjectures and surmises. In our view, the testimony of P.W. 1 Guman Singh is not only natural and trustworthy, but also gets corroborated from the medical evidence and the oral evidence given by P.W. 4 Shamsher Singh. It is pertinent to mention here that the incident in question is a day light incident, and presence of accused Shyam Singh and Chandar Singh in village Dungeli also gets indirectly corroborated from the statement of D.W. 2 Gopal Singh. 15) For the reasons as discussed above, in our opinion, the prosecution has successfully proved charge of offence punishable under Section 302 of I.P.C. against the accused / respondents Shyam Singh and Chandar Singh, and the trial court has erred in law in acquitting them from the charge. Therefore, the appeal is allowed. The impugned judgment and order dated 06.01.2001, passed by Sessions Judge, Dehradun, in 15 Sessions Trial No. 61 of 1994, acquitting the accused / respondents, is set aside. Accused / respondents Shyam Singh and Chandar Singh are convicted under Section 302 of I.P.C. Considering the facts and circumstances of the case, and after hearing learned counsel for the parties, we are of the view that sentence of imprisonment for life to each of the convicts would meet the ends of justice. As such, each of the convicts, namely Shyam Singh and Chandar Singh are sentenced to imprisonment for life under Section 302 of I.P.C. Let a copy of this judgment be sent to the trial court alongwith the record of this case to make the accused / respondents serve out the sentence awarded against them by this court. (Sudhanshu Dhulia, J.) (Prafulla C. Pant, J.) Dt. November 10, 2010. H. Negi 16