IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 481 of 2001 (Old No. 841 of 1995) Constable Harish Chand Pandey S/o Gauri Shankar Pandey R/o Patal Gaon, Patti Talla Sethi District Pithoragarh At present posted at Police lines, Nainital, District Nainital. ...…………. Appellant Versus The State ...…………. Respondent Mrs. Pushpa Joshi, Advocate for the appellant. Mr. H.C. Pujari, Addl. Govt. Advocate for the respondent-State. Coram : Hon’ble Prafulla C. Pant, J. Hon’ble B. S. Verma, J. Hon. Prafulla C. Pant, J. (Oral) This appeal, preferred under Section 374 of the Code of Criminal Procedure, 1973, (for brevity hereinafter referred as Cr.P.C.) is directed against the judgment and order dated 29th of May 1995, passed by learned IV Addl. Sessions Judge, Nainital, in Sessions trial No. 296 of 1992, whereby the accused / appellant Harish Chand Pandey has been convicted under Section 302 of the Indian Penal Code, 1860 (hereinafter referred as I.P.C.), and sentenced to imprisonment for life and also directed to pay fine of Rs. 1,000/-. He has 2 been directed to undergo additional imprisonment for three months in default of payment of fine. 2) Heard learned counsel for the parties and perused the lower court record. 3) Prosecution story, in brief, is that on 22.08.1992, Armed Police Constable Devi Dutt Bhatt (P.W. 3), Armed Police Constable Prem Singh (P.W. 4) and Head Constable Suraj Bhan Sharma (P.W. 1), the informant, and some other constables were posted on security duty in the Rastogi Farm, Khatima, owned by Anand Prakash Rastogi (P.W. 2). At about 09:30 P.M., sound of firing shot from a rifle was heard by the aforesaid witnesses. When P.W. 4 Constable Prem Singh realized that fire was shot by accused / appellant Constable Harish Chand Pandey at Head Constable Ram Das (deceased), he caught hold of the accused and took the rifle from him. Meanwhile, P.W. 3 Constable Devi Dutt Bhatt, P.W. 2 Anand Prakash Rastogi and P.W. 1 Head Constable Suraj Bhan Sharma also reached there. P.W. 1 Head Constable Suraj Bhan Sharma immediately gave a telephonic first information report to the police station Khatima, where on the basis of telephonic information, check report (Ext. A –7) was prepared on 22.08.1992, at 09:40 P.M. On the basis of telephonic information crime No. 369 of 1992 was registered, relating to offence punishable under Section 302 of I.P.C. against the accused Constable Harish 3 Chand Pandey. Investigation was taken up by Inspector Vinod Kumar Sharma (P.W. 5), who rushed to the spot immediately. The inquest report (Ext. A –1) was prepared by him after taking the dead body of Ram Das in his possession. He also got prepared police form No. 13 (Ext. A –8); sketch of the dead body (Ext. A –9); letter (Ext. A –10) to the Chief Medical Officer, Haldwani, requesting for postmortem examination; and sample seal (Ext. A –11). The Investigating Officer also got prepared memorandum (Ext. A –4) after taking the rifle and the ‘BINDOLIA’ (belt containing the cartridges) from Constable Harish Chand Pandey in his possession. The dead body was sent for postmortem examination. Dr. S.P. Ozha conducted postmortem examination on 23.08.1992, at 04:00 P.M. He recorded the three ante mortem injuries, which included gunshot wound of entry and gunshot wound of outlet, and prepared autopsy report (Ext. A –5). The Medical Officer in said report opined that the deceased (Ram Das) had died of shock and haemorrhage as a result of ante mortem injury. The Investigating Officer sent the rifle and empty cartridges collected after the incident for chemical examination to the Forensic Expert, from where report (Ext. A –16) was received that the said cartridges were fired from Rifle No. 84C / 5209 (recovered from the accused Constable Harish Chand Pandey). After interrogating the witnesses and completing the investigation, the Investigating Officer submitted charge sheet (Ext. A –13) against accused / 4 appellant Constable 189 Armed Police, Harish Chand Pandey, for his trial in respect of offence punishable under Section 302 of 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., appears to have committed the case to the court of Sessions, for trial. (Earlier Khatima was part of District Nainital). On 12th of August 1993, IV Addl. Sessions Judge, Nainital, to whom the case was transferred, after hearing the parties, framed charge of offence punishable under Section 302 of I.P.C. against the accused Constable 189 Armed Police, Harish Chand Pandey. The accused pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1 Head Constable Suraj Bhan Sharma (informant); P.W. 2 Anand Prakash Rastogi (in whose house the accused and deceased were on security duty); P.W. 3 Armed Police Constable 482 Devi Dutt Bhatt (who was at some distance at the time of incident); P.W. 4 Armed Police Constable 379 Prem Singh (an eyewitness, who caught hold of Harish Chand Pandey, and took the rifle from him after the fires were shot at the deceased) and P.W. 5 Inspector Vinod Kumar Sharma (the Investigating Officer). The genuineness of the postmortem examination report and forensic science expert’s report were admitted by the defence counsel. The oral and documentary evidence was put to the accused under Section 313 of Cr.P.C., in 5 reply to which the accused / appellant admitted that in the intervening night of 22nd / 23rd of August 1992, he along with deceased Head Constable Ram Das, Head Constable Suraj Bhan Sharma (P.W. 1), Constable Devi Dutt Bhatt (P.W. 3) and some other constables were posted as security guards in Prabhat Farm (also known as Rastogi Farm), within the limits of police station Khatima. In his statement under Section 313 of Cr.P.C., the accused / appellant Constable Harish Chand Pandey further admitted that at the time of incident Constable Devi Dutt Bhatt (P.W. 3) and Constable Prem Singh (P.W. 4) were on the duty on the roof of house situated in Rastogi Farm, and Head Constable Ram Das was also there on said roof with him (accused). The accused / appellant also admitted that at the time of incident Rifle No. 84C / 5209 with belt containing 50 cartridges was with him. However, as to the rest of the evidence he denied the same, as false. No evidence in defence was adduced. The trial court after hearing the parties found accused / appellant Constable Harish Chand Pandey guilty of the charge of offence punishable under Section 302 of I.P.C. After hearing on sentence, the convict was sentenced to imprisonment for life, and also directed to pay fine of Rs. 1,000/-. The trial court directed that in default of payment of fine, the convict shall undergo additional imprisonment for a period of three months. Aggrieved by said judgment and order dated 29th of May 1995, passed by the IV Addl. Sessions Judge, Nainital, in 6 Sessions Trial No. 296 of 1992, this appeal was filed before the Allahabad High Court by the convict on 1st of June 1995, where it was admitted on 17th of August 2000. The appeal is received by transfer to this Court under Section 35 of the U.P. Re-organization Act, 2000 (Central Act No. 29 of 2000), for its disposal. 5) Before further discussion, we think it just and proper to mention the ante mortem injuries recorded by Dr. S.P. Ozha, on 23.08.1992, who prepared autopsy report (Ext. A –5). Genuineness of said document is admitted by defence counsel as per endorsement dated 08.02.1995. The ante mortem injuries recorded in the autopsy report are being reproduced below: i) Gunshot wound of entry 1.5 cm X 1.5 cm on the back on right side, 4 cm below the spine. There was scorching and blackening present, margins inverted. ii) Gunshot wound of outlet 9 cm X 4 cm on the right side of chest, 10 cm below the left nipple, margins averted. iii) Incised wound 2.5 cm X ½ cm on the front of left forearm. On internal examination, The Medical Officer found the lungs lacerated. Vessels in the abdomen were found lacerated. Peritoneum and cavity in the abdomen were filled with blood. Small intestine was lacerated. The Medical Officer opined in his report (Ext. A –5) that the deceased had died of shock and haemorrhage as 7 a result of ante mortem injuries. It is pertinent to mention here that the first information report is prompt and accused is arrested on the spot. 6) P.W. 1 Head Constable Suraj Bhan Sharma, the informant, has stated that in the intervening night of 22nd and 23rd of August 1992, he was posted as security guard in Rastogi Farm, Khatima. Other constables who were posted in said Farm were Constable Chandramani, Contable Mohan Chandra, Constable Bhagwan Singh, Constable Nasim Ahmad, Constable Shyam Dutt Pandey; Constable Devi Dutt Bhat (P.W. 3), Constable Dal Chand; Constable Prem Singh (P.W. 4); Constable Harish Chand Pandey (accused), Head Constable Govind Prasad, Head Constable Anwar Sayeed and Head Constable Ram Das (deceased). The two gunners were required to remain with Anand Prakash Rastogi for whose security the police force was posted. On 22.08.1992, duty of Constable Devi Dutt Bhatt and Constable Prem Singh started at 09:00 P.M., and they were required to patrol on the roof of the house situated in Rastogi Farm. Others viz. Constable Bhagwan Singh, Constable Harish Chand Pandey (accused), Gunner Ram Das (deceased) after having their meals were also on the roof. According to this witness (P.W. 1) at about 09:30 P.M., he heard sound of firing of two shots. On this, he along with Constbale Chandramani went upstairs and saw that Constable Prem Singh (P.W. 4) was snatching rifle from Harish 8 Chand Pandey (accused). Constable Devi Dutt Bhatt (P.W. 3) was assisting him. Head Constable Ram Das (deceased) had died after receiving bullet injury. The witness further narrated that being the Guard Commander he immediately telephonically informed about the incident to police station Khatima. He further states that the rifle and the belt containing cartridges belonging to Constable Harish Chand Pandey along with empty cartridges found at the spot were sealed and handed over to Police Inspector, who reached at the spot soon after receiving the telephonic information. In the cross-examination of this witness nothing has come out which shakes his testimony. The witness states in the cross-examination that he had not himself witnessed the accused Harish Chand Pandey firing the shot. 7) P.W. 2 Anand Prakash Rastogi, who was provided the security has corroborated the prosecution story, stating that in the intervening night on 22nd / 23rd of August 1992, the police force was posted at his residence / Farm, for his security. He further states that at about 09:30 P.M., he also, heard sound of firing shots on which he came out from the house and he was told that on the roof some fire was shot. He was further told by Head Constable Sharma that telephonic information of the incident has been made by him at the police station Khatima. The witness further states that thereafter police came from the police station and after taking dead body of Head Constable Ram Das, inquest 9 report (Ext. A –1) was prepared, in his presence. The witness further proves that rifle and the belt containing the cartridges, and the empty cartridges recovered from the spot were sealed in his presence by the police, and memorandums Ext. A –2, Ext. A –3 and Ext. A –4 were prepared. In his cross-examination the witness disclosed that dead body of Ram Das was lying on the roof. He further told that there was fog light on the roof. 8) P.W. 3 Constable Devi Dutt Bhatt who was on duty at the time of incident at the spot has corroborated the prosecution story as mentioned above. He further told that when he heard sound of firing of shot he initially thought that some terrorists had fired it, but when he took position and started seeing towards the side from where sound had come, he found that Constable Prem Singh was snatching rifle from Constable Harish Chand Pandey (accused). Immediately Suraj Bhan Sharma (P.W. 1) also reached there. The witness has further stated that Ram Das by then had already received the firearm injury and was lying dead on the cot. 9) P.W. 4 Constable Prem Singh who was also on duty at the time of incident at the spot, has stated that when he heard sound of firing a shot at 09:30 P.M., he thought that some terrorists have come, but then he saw Ram Das (deceased) and Harish Chand Pandey 10 (accused) were sitting on a cot and another fire was shot and Ram Das fell down on the cot. According to this witness he immediately ran and caught hold of Harish Chand Pandey and took his rifle. Thereafter, Head Constable Suraj Bhan Sharma (P.W. 1) came upstairs and later gave information through telephone at the police station. The witness has further corroborated the fact that there was a fog light on the roof of the house of Anand Prakash Rastogi. 10) From the above oral evidence on record, as discussed above, read with the autopsy report (Ext. A – 5) and the report of the Forensic Expert (Ext. A –16) in which it is mentioned that after examination it was found that the empty cartridges sent to the laboratory were found to have been fired from the Rifle No. 84C / 5209 (recovered from accused Harish Chand Pandey), establishes on the record that Harish Chand Pandey has committed murder of his colleague Ram Das. It is pertinent to mention here that in his statement under Section 313 of Cr.P.C., the accused / appellant Constable Harish Chand Pandey has admitted that in the intervening night of 22nd / 23rd of August 1992, he along with Constable Chandramani, Constable Mohan Chandra, Constable Bhagwan Singh, Constable Nasim Ahmad, Constable Shyam Dutt Pandey, Constable Devi Dutt Bhatt (P.W. 3), Head Constable Govind Prasad, Head Constable Anwar Sayeed and Head Constable Ram Das (deceased) was posted at Rastogi Farm on 11 security duty. He has further admitted in replies given under Section 313 of Cr.P.C. that on 22.08.1992, from 09:00 P.M., Constable Devi Dutt (P.W. 3) and Constable Prem Singh (P.W. 4) were on their duty on the roof of house of Rastogi, situated in Rastogi Farm. He has further admitted that Head Constable Ram Das was also on the roof. Not only this, accused / appellant in his statement under Section 313 of Cr.P.C. has admitted that Rifle No. 84C / 5209 with 50 cartridges with the belt was in his possession on the day of incident. 11) Learned counsel for the accused / appellant pointed out that there was no sufficient light on the roof of house of Anand Prakash Rastogi and the witnesses had no opportunity to see who fired the shot at Ram Das. On examination of the evidence on record we have found that it has come in the cross-examination of P.W. 2 Anand Prakash Rastogi and P.W. 4 Prem Singh that there was a fog light on the spot at the time of incident. Apart from this, the accused and the witnesses P.W. 1 Suraj Bhan Sharma, P.W. 3 Devi Dutt Bhatt and P.W. 4 Prem Singh were known to each other and there could be no difficulty in identifying the accused at the spot at the time of commission of crime. 12) Next submission advanced on behalf of the appellant is that neither P.W. 1 Suraj Bhan Sharma nor P.W. 2 Anand Prakash Rastogi has witnessed the 12 incident of firing the shot. It is true that they had themselves not seen accused firing the shot and have reached at the spot on hearing the sound of firing and the testimony relating to the scene at the spot soon after firing as narrated by them is relevant under Section 6 and 8 of the Indian Evidence Act, 1872, and as such, corroborates the testimony of P.W. 4 Constable Prem Singh. 13) Mrs. Pushpa Joshi, learned counsel for the accused / appellant submitted that there was no motive for commission of crime on behalf of the accused and the accused is said to have been in a drunken state, as such, even if the prosecution story is accepted, the act on the part of appellant does not fall in the category of murder. Rather, it is covered under Section 304 Part I of I.P.C. Having re-assessed the entire evidence on record, we do not find it a case which can be said to have covered under any of the Exceptions of Section 300 of I.P.C. Merely for the reason that the prosecution had not shown the motive, which is a matter of state of mind of the accused himself, and that he was in a drunken state does not bring the case within Exception I of Section 300 of I.P.C. It is neither a case of grave or sudden provocation, nor a case where the accused was made to drink or get intoxicated by the deceased or anyone else. Therefore, the submission of learned counsel for the appellant cannot be accepted. 13 14) For the reasons as discussed above, after appreciating the evidence on record, we do not find any force in this appeal, which is liable to be dismissed. The appeal is dismissed. If accused / appellant on bail, his bail stands cancelled. The trial court record be sent back. (B.S. Verma, J.) (Prafulla C. Pant, J.) Dt. July 28, 2009. H. Negi