IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL (1) Criminal Appeal No. 1378/2001 (Old No.209 of 1998) Deepu @ Deepak … Appellant Vs. State .. Respondent. (2) Criminal Appeal No. 692/2001 (Old No.2687 of 1998) (1) Deepak @ Bhuri Deepu @ Deepak (2) Govind Mehra … Appellants. Vs. State .. Respondent. Sri S.K. Agarwal, learned Senior Advocate assisted by Sri Vinod Sharma, learned counsel for the appellants. Sri Nandan Arya, learned A.G.A. for the State. Coram: Hon’ble B.C. Kandpal, J. Hon’ble Nirmal Yadav, J. [Per: Hon’ble B.C. Kandpal, J.] Both these appeals arise out against the judgment and order dated 27-11-1998, passed by Ist Addl. Sessions Judge, Dehradun, in S.T. No. 61 of 1996, State Vs. Deepak @ Bhuri and three others, whereby accused Deepak @ Bhuri, Mahaveer and Govind Mehra have been convicted U/S 302/149 and 148 I.P.C. and each of them were sentenced to two years R.I. U/S 148 I.P.C. and imprisonment for life and a fine of Rs. 5,000/- U/S 302/149 I.P.C. and in default of payment of fine to further undergo six months R.I. Accused Deepu @ Deepak was convicted U/S 147 I.P.C. and 302/149 I.P.C. and he was sentenced to two years R.I. U/S 147 I.P.C. and Life Imprisonment and a fine of Rs. 5,000/- U/S 302/149 I.P.C. and in default of payment of fine to further undergo six months R.I. 2- The prosecution case, in brief is that on 25.11.1995, at 11.05 P.M., the complainant Km. Shanti Rawat filed a written report scribed by Arvind Kumar on her dictation at Reporting Out Post Basant Vihar, P.S. Kotwali Dehradun with the allegations that her sister’s son Arun was sitting at the house of Ram Rati. At about 7.30 P.M. Deepu came to him and carried him to I.M.A. Tea Estate. On hearing the hue and cry of Arjun ‘Bachao Bachao’, coming from the Tea Estate, she herself, her brother’s wife Sushila, Ram Das and other persons of the village ran and reached at the spot and flashed torches. In the light of torches, they saw that Govind Mehra resident of Gupta Building and Deepak @ Bhuri resident of Shyampur were assaulting Arun by Guptis and Mahaveer resident of Rajeev Nagar and Shibbu Thapa were assaulting him by Khukharis. On being challenged by them, they fled towards Baniawala on two scooters. After the murder of Darban Singh Bisht, they became inimical to Arun. They have assaulted him on account of the said enmity. They carried Arun in an injured state to Doon Hospital. The medical Officer declared him dead there. His dead body was left at the hospital. Thereafter the report was lodged. On the basis of the written report Ext. Ka.1, chick F.I.R. Ext. Ka-4 was drawn and a case was registered against the accused Deepu, Govind Mehra, Deepak @ Bhuri, Mahaveer and Shibbu Thapa at Case Crime No. Nil U/Ss 147, 148, 302 I.P.C. at R.O.P. Basant Vihrar, vide G.D. Report No. 26 dated 25.11.95 at 23.05 hour, copy of which is Ext. Ka.5. The investigation of the case was entrusted to S.H.O. P.S. Kotwali Sri J.P. Sharma. 3- The Investigating Officer recorded the statements of Head Constable Rajbeer singh and complainant Km. Shanti Rawat. The police raided the house of accused Deepak @ Bhuri and arrested him on 26.11.1995 at about 6.00 A.M. from his house situate at village Shyampur. The I.O. inspected the place of occurrence on 26.11.1995 and prepared site plan, Ext. Ka.12. Two Khukharis, one cover of Gupti and one hawai chappal were recovered from near the place of occurrence in presence of witnesses vide recovery memo, Ext. Kha.2. The I.O. also took into possession the bloodstained bed sheet where Arun was laid down after the incident and his sweeter stained with blood and recovery memo, Ext. Ka.3 was prepared. Thereafter the concerned papers were sent to Police Station Cantt for further investigation and the case was registered at Crime No. 178 of 1995, U/Ss 147, 148, 302 I.P.C. against the accused persons vide G.D. report No. 35 at 15.30 hours on 27.11.1995, copy of the G.D. is Ext. Ka. 16. Thereafter the case was investigated by S.O. P.S. Cantt. Sri Haider Raza Zaidi. 4- Dr. V.K. Oli, Doon Hospital examined Arun Kumar on 25.11.1995 at about 12.25 P.M. and declared him dead. Sri J.S. Talyan, S.I. conducted inquest on the dead body of Arun Kumar and prepared inquest report, Ext. Ka.6. The dead body was sealed and sample seal. Ext.7, sketch dead body, Ext. Ka.8, Police Form No. 13, Ext. Ka.9, letter to C.M.S., Ext. ka.11 were prepared and the dead body was sent for post mortem. 5- Dr. N.K. Joshi, conducted the autopsy on the dead body of deceased Arun Kumar on 26.11.1995 at 3.30 P.M. in Doon Hospital, Dehradun and found the following ante-mortem injuries on his person- 1- Punctured wound 1.5cm x 0.5cm x chest cavity deep on front of left side of chest, 7 cm below and medial to left nipple at 7 O’clock position. Margins clear cut. Direction from front to back. 2- Punctured wound 1cm x 0.5cm x chest cavity deep on front of upper part of chest right side, 1.5cm below middle of right clavicle. Direction from front to back. 3- Punctured wound 1.5cm x 0.5cm x chest cavity deep on front of right side of chest, 13 cms below and lateral to nipple at 8 O’clock position. Direction from front to back. 4- Incised wound 0.5cm x 0.2cm x muscle deep, on front of chest right side, 6 cms above the nipple at 11 O’clock position. 5- Incised wound 0.5cm x 0.2cm x muscle deep on front of abdomen in epigastrium region, 11 cms above umbilicus. 6- Incised wound 1.5cm x 0.5cm x muscle deep on back of right forearm, 10 cms above wrist joint. 7- Incised wound 1.5cm x 0.5cm x muscle deep, on front of middle or right forearm, 10 cms below elbow joint. 8- Incised wound 1cm x 0.5cm x muscle deep, on front of tip of right index finger. 9- Incised wound 1cm x 0.5cm x skin deep on middle of middle finger on palmer aspect on right side. 10- Incised wound 1 cm x 0.5cm x skin deep on middle of index finger in palmer aspect on right side. 11. Abrasion 1.5cm x 0.5cm on front of right knee joint. 12. Incised wound 1.5cm x 0.5cm x muscle deep, on left side of face, 3 cms medila to tragur of left ear. In internal examination the doctor found that the walls of chest were congested and cust. Pleura was congested and cut. The right lung was congested and upper and lower limbs were cut. The left lung was congested and cut. The pericardium was congested and right auricla was punctured. Both chambers of heart were empty. The stomach contained 250 gms semi digested food material. The liver was pale. Both the kidneys were pale and the bladder was empty. In the opinion of the doctor the death of deceased was caused due to shock and haemorrhage as a result of ante- mortem injuries. The doctor prepared post mortem report Ext. Ka.3-A. The doctor further opined that the injuries could be caused on 25.11.1995 at about 7.30 P.M. by Gupti and Khukharis etc. 6- During investigation, Sri Haider Raza Zaidi inspected the place of occurrence on 28.11.1995 and found that the village of occurrence is situate within the jurisdiction of P.S. Kotwali Dehradun. He wrote letter to Tehsildar Dehradun for giving clarification about the place of occurrence. Sri Darshan Singh Negi Chhetriya Lekhpal met him on 8.12.1995 and informed him that the place of occurrence situate within the jurisdiction of P.S. Kotwali, Dehradun. He also gave his report Ext. Ka.18 to the I.O. Thereafter I.O. submitted his report to the S.P. City Dehradun for transferring the further investigation to P.S. Kotwali, Dehradun. On the direction of S.P. City, the case was registered at Crime No. 904/1995 U/Ss 147, 148, 302 I.P.C. at P.S. Kotwali, Dehradun vide G.D. Report No. 49 at 22.00 hours on 21.12.1995 and further investigation was entrusted to Sri K.L. Bhardwaj, S.I. Sri K.L. Bhardwaj I.O. recorded statements of Smt. Sushila, Ram Das, Smt. Ram rati, Subhadra and Raghubir and also recorded statements of punches of panchayatnama. 7- On 21.12.1995 Inspector Mahak Singh the then S.H.O. P.S. Dalanwala along with force was in search of accused Surendra and others, who were involved in a case U/S 302 I.P.C. Accused Mahaveer was also involved in another criminal case at P.S. Dalanwala. On 21.12.1995, at about 3.00 the accused Mahaveer was arrested by them while going on Yamha Motor Cycle No. UMA -7691. On interrogation he admitted his involvement along with other accused in the commission of murder of Arun. He was handed over at Dalanwala P.S. vide G.D. Report No. 34 at 3.30 P.M. dated 21.12.1995. Sri K.L. Bhardwaj I.O. received information about the arrest of accused Mahaveer on 22.12.1995 and he went to P.S. Dalanwala and recorded his statement. On 30.12.1995 he raided the house of accused Deepu at F.R.I. but he could not be traced out, hence report for taking action U/S 82/83 Cr.P.C. was submitted to the court. Accused Govind Mehra got his bail cancelled in another case and was sent to jail. The remaining investigation was entrusted to S.S.I. S.S. Bisht on 10.1.1996. 8- Sri S.S. Bisht, I.O. had recorded the statement of accused Deepak @ Deeput on 22.1.1996 at District Jail, Dehradun. During investigation the another accused Shibbu Thapa was traced out and after completing the investigation the I.O. submitted charge sheet, Ext. Ka. 15, against accused Deepak @ Bhuri, Mahaveer, Govind Mehra and Deepu @ Deepak. 9- The Chief Judicial Magistrate, Dehradun vide his order dated 25.3.1996 committed the case to the court of Sessions for trial. 10- The learned Additional Sessions Judge framed charges U/Ss 148 and 302/149 I.P.C. against all the accused persons. Accused Deepu @ Deepak was further charged U/S 147 I.P.C. They pleaded not guilty and claimed to be tried. 11- The prosecution in support of its case, examined Km. Shanti Rawat, P.W.1, Smt. Sushila Devi, P.W.2, Dr. N.K. Joshi, P.W.3, Rajbeet Head Moharir, P.W.4, J.S. Talyan P.W.5, Ram Das, P.W.6, Smt. Ram Rati, P.W.7, Smt. Prem Wati P.W.8, Raj Kumar, P.W.9, J.P. Sharma, I.O. P.W.10, K.L. Bhardwaj I.O. P.W.11, S.S. Bisht, I.O., P.W.12, Haider Raza Zaidi, I.O. P.W.13, Mahak Singh, Inspector, P.W.14, Brij Pal Singh, P.W.15, Raj Kumar, P.W.16, Karan Pal Singh, Head Mohrir, P.W.17 and Dr. B.K. Oli P.W.18. 12- The accused persons in their statements U/S 313 Cr.P.C. have denied the prosecution allegations and alleged that they have been falsely implicated in this case due to enmity. The accused Deepak @ Bhuri also alleged that the police had carried him from his house to P.S. Cantt. For interrogation and thereafter to O.P. Basant Vihar and P.S. Kotwali Dehradun and detained him at Kotwali for two days. The accused have filed the certified copy of written report filed by Dolly Bisht at O.P. Basant Vihar, Dehradun relating to S.T. No. 229 of 1995 State vs. Ravi and others, pending before the trial court, Ext. Kha.1, in their defence. 13- The learned Sessions Judge, after hearing learned counsel for the parties and considering the entire evidence on record, convicted the accused Deepak @ Bhuri, Mahaveer and Govind Mehra U/Ss 302/149 and 148 I.P.C. and each of them were sentenced to two years R.I. U/S 148 I.P.C. and imprisonment for life and a fine of Rs. 5,000/- U/S 302/149 I.P.C. and in default of payment of fine to further undergo six months R.I. Accused Deepa @ Deepak was convicted U/S 147 I.P.C. and 302/149 I.P.C. and he was sentenced to two years R.I. U/S 147 I.P.C. and Life Imprisonment and a fine of Rs. 5,000/- U/S 302/149 I.P.C. and in default of payment of fine to further undergo six months R.I. 14- Feeling aggrieved the accused have transferred the appeals before this Court. 15- At the outset it is to be mentioned here that during the pendency of appeals accused/appellants Govind Mehra and Mahaveer have died and the appeal against accused Mahaveer stands abated vide order dated 16.6.2010 while against another accused/appellant Govind Mehra stands abated vide order dated 6.4.2010. Therefore, now there remain two accused/appellants Deepu @ Deepak and Deepak @ Bhuri. 16- We have heard learned counsel for the accused/appellants and learned A.G.A. on behalf of the State and perused the record. 17- Learned counsel for the accused/appellants has submitted that the independent eye witnesses have not supported the prosecution case and P.W.1,Km. Shanti Rawat and P.W.2, Smt. Sushila Devi, who have given statement against the accused/appellants are close relatives of the deceased and on their testimony alone the accused/appellants cannot be held guilty of the offences charged against them. 18- On the other hand learned A.G.A. has made a rival contention and argued that P.W. P.W.1, Km. Shanti Rawat and P.W.2, Smt. Sushila Devi are natural witnesses of the occurrence and their testimony is fully reliable. 19- In the background of above submissions learned counsel for parties, we have gone through the evidence on record in order to determine this point as to whether the prosecution has succeeded in establishing the charges levelled against the accused/appellants beyond reasonable doubt or not. 20- The first witness examined by the prosecution is Km. Shanti Rawat, P.W.1. Deceased Arun was the son of her sister Smt. Prema Rawat. She has deposed that house of Smt. Ram Rati is situated near her house. On the day of incident Arun was sitting the house of Ram Rati. On 25.11.1995 at about 7.30 P.M., Deepak @ Deepu came to call Arun and carried him to I.M.A. Tea Estate. After about five minutes, on hearing the hue and cry of Arun, She herself, her brother’s wife Smt. Sushila Devi, Ram Das and the other persons of the village ran towards the said place and saw in the light of torch and electric that Deepu, Bhuri and Govind Mehra were armed with Guptis and Mahaveer and Shibbu Thapa were armed with Khukharis and they were assaulting Arun. On being challenged by them, they fled towards Baniawala on two scooters. Thereafter they brought Arun in an injured state to their house. Arun stated the names of accused before them and their neighbours. Then they carried Arun to Doon Hospital and he saw declared dead there. She further deposed that the report of incident, Ext. Ka.1 was written by Arvind on her dictation and she had affixed her signature on it. This witness further deposed that the Khukharis Exts. 1 and 2, cover of Gupti Ext. 3, and Hawai Chappal, Ext. 4 recovered from the place of occurrence on the next day, were handed to the police by her and recovery memo, Ext. Ka.2 was prepared by the police. She further deposed that the sweater, Ext.5, worn by deceased and the bed sheet Ext.6 on which Arun was laid down after the incident, were also taken into possession by the police and recover memo Ext. Ka.3 was prepared. Therefore, from the deposition of P.W.1, Km. Shanti Rawat, it is quite clear that on 25.11.1995 at about 7.30P.M. accused Deepak @ Deeput came to call Arun and carried him to I.M.A. Tea Estate and after some time Arun raised hue and cry at which this witness, Smt. Sushila Devi, Ram Das and other persons of the village ran towards the said place and they saw in the light of torch and electric and Deepu, Bhuri and Govind Mehra were having Guptis and accused Mahaveer and Sibhhu Thapa were having Khukharis and they were assaulting Arun and when they were challenged by the witnesses they fled away riding in to scooters. 21- The above deposition of P.W.1, Km. Shanti Rawat, finds full corroboration from the deposition of P.W.2, Smt. Sushila Devi. This witness also deposed that hearing cry of Arun ‘Bachao Bachao’ she herself, Km. Shanti, Ram Das and some other villager people ran towards the place of occurrence and they in the light of torch as well as electric light, saw that Deepu had caught Arun and Govind Mehra and Deepak @ Bhuri were assaulting him by Guptis and Mahaveer and Shibbu were assaulting him by Khukharis. Both the witnesses have clearly stated that accused Deepu, Bhuri and Govind Mehra were having Guptis whereas accused Mahaveer and Sibhhu Thapa were having Khukharis and they were assaulting the deceased with their respective weapons. This witness further deposed that Arun had also stated the names of assailants. P.W.1, Km. Shanti Rawat also deposed in her on oath statement that when they brought Arun to the house in an injured condition he had also told the names of assailants. Both these witnesses have been cross examined at a great length but nothing immaterial has come out from their deposition which may cast any doubt on the authenticity of their depositions. 22- Learned counsel for the accused/appellants has submitted that according to the prosecution the incident has taken place in the dark hours of night at 7.30 P.M. on 25.11.1995 and it was not possible for the witnesses to have witnessed the occurrence. 23- We do not find any substance in the above submission of learned defence counsel. P.W.1, Km. Shanti Rawat and P.W.2, Smt. Sushila have clearly deposed that when they heard hue and cry of the deceased they ran towards him with torches in their hands and they witnessed the occurrence in the torch light as well as electric light. The above deposition of these witnesses find support from the site plan, Ext. Ka.12, prepared by the I.O. The I.O. in the site plan had shown the place of occurrence with letter ‘A’. From letter ‘A’ about six paces downwards electric pole has been shown. In this way it is proved that there was enough source of light at the place of occurrence and the witnesses had every opportunity to witness the occurrence. Both the witnesses have deposed that they knew the accused persons from before the incident. They have also given their parentage and residential addresses. Therefore, it is quite clear that the accused persons were well known to the witnesses and they were correctly identified by the witnesses assaulting the deceased with their respective weapons in the torch and electric light. Therefore there remains no doubt about the identity of the accused persons. 24- The other eyewitnesses P.W.6 Ram Das and P.W.7, Smt. Ram Rati who had gone at the place of occurrence after hearing the cries of deceased, have not supported the prosecution case. However, these witnesses have admitted that deceased Arun sustained injuries and he was lying under the quilt and witness Ram Das had also carried Arun to Doon Hospital but these witnesses did not tell the names of assailants and that is why they have been declared hostile. Although deceased Arun was a relative of P.W.1, Km. Shanti Rawat and P.W.2, Smt Sushila but only for this reason their testimony cannot be discarded. We have carefully scrutinized the testimony of both these witnesses and find that these two witnesses are natural witnesses and no reason has been assigned to them as to why they would falsely depose against the accused persons. The learned trial court has rightly believed the testimony of P.W.1 and P.W.2. 25- The F.I.R. of the incident has been lodged without unreasonable delay. The incident is said to have taken place on 25.11.1995 at about 7.30 P.M. and the written report, Ext. Ka.1 has been lodged at Police Out Post Basant Vihar at 11.05 P.M. in the same night. Perusal of F.I.R. reveals that full particulars about the accused persons have been mentioned in it. Promptness of F.I.R. rules out the possibility of false implication. 26- Learned counsel for the appellants also argued that the prosecution has failed to establish the motive against the accused/appellants for committing the crime and this fact goes against the reliability of prosecution story. 27- Again this submission is of no avail. In the written report, Ext. Ka.1, itself the motive of the crime has been mentioned. The complainant has mentioned in the written report that after the murder of Darwan Singh Bisht, accused persons were bearing enmity with Arun. P.W.1, Km. Shanti Rawat and P.W.2, Smt. Sushila also deposed this fact in their on oath statement. The accused persons in their statements U/S 313 Cr.P.C. have deposed that they have been implicated due to enmity. They also filed photocopy of written report, Ext. Kha1 which has been filed by Doli at Basant Vihar Police Chauki narrating therein that her son Darwan Singh was doing the work of Guard at Yamuna Colony. In village Badowala a cricket match was going on and a quarrel had taken place in between the boys of two villages and threats were extended by them to each other. She had also mentioned in that report that Arun was also amongst the assailants of her son. In that very report name of Deepak R/o Shyampur has also been mentioned amongst the persons who had witnessed the occurrence. Names of other accused do not figure in that report and only for the reasons that name of Deepak finds place in that report amongst the persons who witnessed the occurrence, cannot be strong reason for false implication of the accused persons in commission of murder of Arun. However, from the above facts and circumstances of the case it is quite clear that accused/appellants were having grudge against the deceased Arun, as Arun had challenged Darwan Singh when quarrel had taken place between the boys of two villages. Hence the accused/appellants had strong motive to eliminate the deceased Arun. 28- The recovery of the weapons at the place of occurrence, which the accused persons were holding at the time of incident, also lends support to the authenticity of the prosecution version. On the next day of incident, i.e. 26.11.1995, P.W.10, Inspector, Sri J.P. Sharma visited the place of occurrence and got recovered two Khukharis, one cover of Gupti and Hawai Chappal, in presence of witnesses Km. Shanti Rawat, Smt. Sushila and Subhadra and prepared recovery memo, Ext. Ka.2. P.W.1, Km. Shanti Rawat and P.W.2, Smt. Sushila have proved the recovery memo and have deposed that the police had got recovered these articles from the place of occurrence in their presence. They have identified their signatures on the said memo. 29- Thus from above evidence on record, we find that they prosecution has been successful in establishing the guilt of accused /appellants beyond all reasonable doubts. The testimony of P.W.1, Km. Shanti Rawat and P.W.2, Smt. Sushila is fully reliable and from their depositions it is fully established that all the accused/appellants have assaulted the deceased with Guptis, Khukharis with intention to kill him and lateron he succumbed to the injuries. 30- The medical evidence in this case fully corroborates the ocular version. P.W.3, Dr. N.K. Joshi, who conducted autopsy on the dead body of the deceased have found as many as eight incised wounds, three punctured wounds and an abrasion on the various parts of the dead body. The doctor has opined that these injuries could be caused on 25.11.1995 at 7.30 P.M. by Gupti and Khukhri etc. He further opined that the death of deceased was caused due to shock and haemorrhage as a result of ante-mortem injuries. In this way the medical version fully corroborates the prosecution case. 31- In view of above discussion, we are in full agreement with the conclusion drawn by the learned trial court. We do not find any ground to interfere with the findings recorded by the learned trial Court. Therefore, the appeals lack merit and are liable to be dismissed. 32- Both the appeals are dismissed. The impugned judgment and order passed by learned trial court convicting accused/appellant Deepak @ Bhuri U/S 148 and 302/149 I.P.C. and accused/appellant Deepu @ Deepak U/S 147, 302/149 I.P.C. and sentencing each of them Life Imprisonment and a fine of Rs. 5000/- and in default of