IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 876 of 2001 (Old No. 2068 of 1993) Madan Singh, S/o Ghasi Singh, R/o Village Laldhang, P.S. Ramnagar, District Nainital. …………..Appellant. Versus State ....……..Respondent. Smt. Pushpa Joshi, Advocate for the appellant. Sri M.A. Khan, Brief Holder and Sri Tanuj Semwal, Asst. Government Advocate for the State. Hon’ble Prafulla C. Pant, J. Hon’ble Dharam Veer, J. (Oral: Hon’ble Prafulla C. Pant, J.) This appeal, preferred under Section 374 of Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), is directed against the judgment and order dated 28.10.1993/29.10.1993, passed by IV Additional Sessions Judge, Nainital, in Sessions Trial No. 65 of 1991, whereby accused / appellant Madan Singh is convicted under Section 302 of Indian Penal Code, 1860 (hereinafter referred as I.P.C.), and sentenced to imprisonment for life and also directed to pay fine of Rs.1000/-. In default of payment of fine, the convict has been directed to undergo three months’ further imprisonment. (2) Heard learned counsel for the parties and perused the lower court record. 2 (3) Prosecution story in brief is that on 21st December 1990, at about 10.30 p.m., in village Laldhang, there was some deity worshiping in the house of elder brother of complainant Durga Ram (P.W.2). The family members of complainant were also there. Ms. Devki Devi (deceased), daughter of complainant, came out of her uncle’s house and went to her house to keep a THALI (plate). When she was coming out of her house, accused / appellant Madan Singh caught her and asked her to accompany him. Ms. Devki Devi resisted and refused to follow him. She got herself free from the clutches of accused and started running towards her house. On this, accused / appellant Madan Singh fired a shot from a country made pistol, which hit at Devki Devi (deceased). On hearing sound of fire, complainant Durga Ram (P.W.2), Prem Ram (P.W.3) and Ramesh Ram (P.W.4) rushed to the spot and made an attempt to chase the accused / appellant. However, the accused / appellant escaped from the scene. Ms. Devki Devi was taken in injured condition to Police Station, where a First Information Report (Ext.A-4) was lodged at 2.20 hours in the intervening night of 21st and 22nd December 1990, where a Crime No. 457 of 1990 was registered, relating to offence punishable under Section 307 I.P.C., against accused / appellant Madan Singh. The injured was taken, thereafter, to Government Hospital, Ram Nagar, where her injuries were examined by Dr. Narendra Singh (P.W.1) at 3 a.m., who prepared injury report (Ext.A-1). Since the condition of the patient was serious, the said Medical Officer also recorded the Dying Declaration (Ext.A-3) on 22.12.1990 at about 10 a.m., in which the deceased told the Medical Officer that accused Madan Singh, S/o Ghasi Ram, had fired at her. The investigation was taken up by Sub Inspector Ramesh Chand Dikshit (P.W.5). He interrogated the witnesses, inspected the spot and prepared the necessary 3 papers. After about seven days of the incident on 29th December 1990, Ms. Devki Devi succumbed to the injuries and died in the Hospital. Consequently, the case crime was converted to the offence punishable under Section 302 I.P.C.. The Police took the dead body in his possession and prepared the inquest report (Ext.A-10), alongwith other necessary papers like Police Form No. 13 (Ext.A-12) and sketch of the dead body (Ext.A-13). The dead body was sent in a sealed cover for postmortem examination. Dr. S.P. Srivastava (P.W.6) conducted the postmortem examination on the very day i.e. 29.12.1990 at about 3 p.m. and prepared autopsy report (Ext.A-15). After recording the ante mortem injuries, he opined that cause of death was toxicemia and shock as a result of ante mortem injuries. After completion of investigation, charge sheet (Ext.A-14) was submitted by the Investigating Officer against accused Madan Singh for his trial in respect of offence punishable under Section 302 I.P.C. (4) The Magistrate on receipt of the charge sheet, after giving necessary copies to the accused, as required under Section 207 of Cr.P.C., committed the case to the court of Sessions for trial. Learned Sessions Judge, Nainital, after hearing the parties framed charge of offence punishable under Section 302 I.P.C. on 29.05.1991 to which accused Madan Singh pleaded not guilty and claimed to be tried. On this prosecution got examined P.W. 1 Dr. Narendra Singh, who recorded the injuries of Ms. Devki Devi and also recorded her Dying Declaration, P.W.2 Durga Ram, complainant and father of the deceased, P.W.3 Prem Ram (declared hostile), P.W.4 Ramesh Ram (declared hostile), P.W.5 Sub Inspector Ramesh Chand Dikshit, the Investigating Officer and P.W.6 Dr. S.P. Srivastava, who conducted the postmortem examination on the dead body of deceased Ms. Devki Devi. 4 Meanwhile, the case was transferred to the Court of IV Additional Sessions Judge, Nainital. Said court put the entire oral and documentary evidence to the accused under Section 313 Cr.P.C. in reply to which the accused Madan Singh alleged the same to be false. He further stated that due to enmity with Village Pradhan, he was falsely implicated in the present case. However, no evidence was adduced on behalf of accused in defence. After hearing the parties, learned trial court found the accused Madan Singh guilty of charge of offence punishable under Section 302 I.P.C. on 28.10.1993. Thereafter, parties were heard on sentence on 29.10.1993 and the convict Madan Singh was sentenced to imprisonment for life and also directed to pay fine of Rs.1,000/- under Section 302 I.P.C.. In default of payment he was further directed to undergo three months’ imprisonment. Aggrieved by said judgment and order dated 28.10.1993 / 29.10.1993, passed by IV Additional Sessions Judge, Nainital, in Sessions Trial No. 65 of 1991, this appeal was preferred before the Allahabad High Court on 25.11.1993, where it was admitted on 26.11.1993. The appeal is received by this Court under Section 35 of U.P. Reorganisation Act, 2000 (Central Act No. 29 of 2000). (5) Before further discussions, we think it just and proper to mention the injuries found on the person of Ms. Devki Devi at the time she was brought to the Government Hospital, Ram Nagar, on 22.12.1990 at 3 a.m.. The said injury report (Ext.A- 1), prepared by P.W.1 Dr. Narendra Singh discloses following injuries found on the person of Ms. Devki Devi:- (i) A lacerated wound over 1 cm lateral to right sternoclavicular joint measuring 3 x 1 cm, fresh 5 bleeding, margins irregular oblique, right to left (direction of wound), advised X-ray chest-P.A. and A.P. view. (ii) Tattooing of whole neck in the area of 12 x 12 cm including lower face. (iii) A lacerated wound over back medial to medial angle of right scapula. Triangular wound 2 x 1 cm fresh bleeding seen. No tattooing marks seen. The above mentioned injury report gets corroboration from the corresponding injuries found in ante mortem injuries after death of Ms. Devki Devi on the post mortem examination of her dead body. The autopsy report (Ext.A-15) prepared by P.W.6 Dr. S.P. Srivastava discloses following ante mortem injuries found on the person of the deceased on 29.12.1990 at 3 p.m.:- (i) A gunshot wound of entry size 3 x 1.5 cm oval in shape. 1 cm lateral to right sternoclavicular joint with inverted margins directed obliquely to the right. (ii) Multiple abrasions in an area of front and right side of neck upto the lower jaw. Size 2 x 5 m.m. to 5 x 8 mm hard scab present. Pus flakes are present beneath the scab. (iii) A L.W. of size 4 x 2.5 cm on right interscapular region just medial to medial border of right scapula. 6 Everted margins serosangion fluid coming out of the wound. Sri S.P. Srivastava (P.W.6) after post mortem examination opined that the deceased had died due to toxicemia and shock as a result of ante mortem injuries. (6) The above medical evidence clearly establishes the homicidal death of Ms. Devki Devi, aged 16 years. The postmortem examination report further shows that on internal examination five months old dead foetus was found, 7 inches in length, which suggests that the deceased was pregnant at the time of her death. Now the question is who has caused death of the deceased. (7) According to P.W. 1 Dr. Narendra Singh after Ms. Devki Devi was admitted in the Hospital in the intervening night of 21st and 22nd of December 1990, since her condition was serious, Dying Declaration was recorded by him at 10 a.m. on 22.12.1990. This witness has proved the said Dying Declaration, which bears thumb impression of the deceased. The Dying Declaration reads as under:- “eSa dqekjh nsodh nsoh vius iwjs gks’kks gokl esa dgrh gwW fd tc eSa ikSus nl cts jkr tkxj ns[kus ls ?kj ykSV jgh Fkh vkSj xk; ds ?kkSjs ls crZu ysdj ykSV jgh Fkh rks dksus ij fNik enu iq= ?klhVk jke us eq>s cqyk;k vkSj dgk pyks eSusa mlds ;g dgus ij euk fd;k rks mlus Nhuk >iVh dh tcjnLrh dgus yxk pyks] eSus euk fd;k vkSj ?kj dh rjQ Hkkxh tSls gh eSus Hkkxus dh lksph o gjdr dh mlus lkeus ls xksyh pyk nh] vkSj eSa ogh ij fxj iM+h] xksyh dh vkokt lqu dj esjs ckcw ¼firk th½ ogkW igqWp x;sA” 7 (8) P.W. 2 Durga Ram, complainant and father of the deceased has corroborated the fact that after he heard sound of fire he along with Prem Ram and Ramesh Ram came out of the house and saw Devki Devi lying in an injured condition. He further stated that a boy was running away. Said boy was Madan Singh (accused / appellant). This witness further stated that when he reached near Devki Devi and asked her about the incident, she told that Madan Singh (accused / appellant) asked her to accompany him but she refused, on this the accused fired a shot at her. Though P.W.3 Prem Ram and P.W.4 Ramesh Ram have been declared hostile as they did not fully corroborated the prosecution story but they have stated that they came out after hearing sound of fire and saw Devki Devi in an injured condition. These two witnesses further corroborated that on the day of incident there was some worshiping going on in the house of Hari Ram. The Dying Declaration given by the deceased, which is recorded by the Medical Officer, who is an independent person, read with statement of P.W.1 Dr. Narendra Singh, who has no reason nor any enmity with the accused prove the fact on record that Madan Singh (appellant) has caused death of Devki Devi and thereby committed culpable homicide. (9) Smt. Pushpa Joshi, learned counsel for the appellant argued that the Medical Officer has nowhere mentioned in the Dying Declaration (Ext.A-3) that the deceased was in a fit state of mind to make the statement as such it can not be relied. We do not find much force in the argument for the reason that P.W.1 Dr. Narendra Singh has in his examination on oath stated before the Court that Devki Devi was in a fit state of mind to make the statement. Though he has not specifically so mentioned in Ext.A-3, but the injury report shows that the patient was not in an unconscious condition. 8 Apart from this fact Devki Devi had succumbed to the injuries about seven days after the Dying Declaration is recorded, as such it cannot be said that at the time of making Dying Declaration Devki Devi was not in a fit state of mind. (10) Learned counsel for the appellant further submitted that it is not clear whether the fire was shot from the front side or from the backside of Devki Devi and there are contradictions on this point in the evidence on record. Having reassessed the entire evidence on record, we found that there is no inconsistency in the evidence as the wound of entry of the gunshot is from the front side and that of the exit is on the backside of the injured. (11) On behalf of appellant, it is further argued that there was no intention of committing murder of the deceased on the part of the accused / appellant Madan Singh as it has come in the evidence of the witnesses that the two were in love and Devki Devi was carrying pregnancy at the time of incident. From the evidence it does appear that accused had some affair with the deceased and he wanted to take Devki Devi with him, but on her refusal, he fired at her. It is also pertinent to mention here that only one fire was shot by the accused. It is further relevant to take note of the fact that death has occurred after seven days of the incident and cause of death as mentioned in the postmortem examination report is toxicemia and shock as a result of ante mortem injuries. In these circumstances, considering the above three facts together, we are of the view that the act on the part of the accused / appellant Madan Singh is covered under Section 304 Part I of the I.P.C. and not under Section 302 I.P.C. and sentence awarded to him under section 302 I.P.C. is liable to be set aside. 9 (12) For the reasons as discussed above, this appeal is partly allowed. The impugned judgment and order dated 28.10.1993 / 29.10.1993, passed by the trial court is set aside to the extent the conviction of the accused / appellant Madan Singh is recorded relating to offence punishable under Section 302 I.P.C.. The sentence awarded to him under said section is also set aside. However, the accused / appellant Madan Singh is convicted under Section 304 Part I of I.P.C. and he is sentenced to rigorous imprisonment for a period of ten years. From the record, it appears that during trial accused / appellant Madan Singh was in jail and even during the pendency of this appeal he appears to have remained in jail till September 1999. In the circumstances, it is observed that the period spent by the accused / appellant Madan Singh in jail shall be adjusted out of the sentence awarded by this Court. Accused / appellant Madan Singh is on bail. His bail is cancelled. He shall serve out the remaining part of sentence as directed by this Court. Registry is directed to send the lower court record back to the trial court for necessary action. (Dharam Veer, J.) (Prafulla C. Pant, J.) 06.08.2008 NS 10