Reserved Judgment HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal no. 590 of 2001 (Old no. 327 of 1989) Bhagat Singh S/o Sabu Singh, Resident of village Ram Chandrapur, P.S. Gadarpur, District Nainital, (Now district Udham Singh Nagar) ------- Accused/appellant. Versus The State. ------- Respondent Sri Pankaj Purohit, learned counsel for the appellant, Sri Prabhakar Joshi, learned Brief Holder for the State. Dated: April 30, 2008 Hon’ble Dharam Veer, J. This appeal preferred u/s 374(2) of The Code of Criminal Procedure, 1973 (hereinafter referred to as the Cr.P.C.) is directed against the judgment and order dated 6th February 1989 passed by the II Addl. Sessions Judge, Nainital in Sessions Trial no. 282/1985 State vs. Bhagat Singh and 6 others, whereby the learned II Addl. Sessions Judge has convicted the accused/appellant Bhagat Singh for the offence punishable u/s 307 of The Indian Penal Code, 1860 (hereinafter referred to as the I.P.C.) and sentenced him to undergo rigorous imprisonment for a period of 5 years’. By the judgment and order the learned II Addl. Sessions Judge acquitted the co- accused Shyam Singh, Jeet Singh, Gulzar Singh, Preetam Singh, Amarjeet Singh and Darshan Singh from the charges levelled against them. The present accused/ appellant was acquitted for the offence punishable u/s 148 I.P.C. 2. The prosecution case, in brief, is that the complainant Deshraj PW-1 lodged a written report Ext. Ka-1 with the averments that on 25.10.1984 at about 5:00 p.m. he had gone to see the cultivated stock of paddy which had been stored at the 2 granary (KHALIHAN). At the granary he saw the accused/appellant Bhagat Singh standing there armed with a two-barrel licence gun. His sons Preetam Singh, Shyam Singh, Jeet Singh and Amarjeet Singh were standing armed with LATHIES. Darshan Singh was also accompanied with them armed with a BALLAM. Gulzar was filling the paddy in bags. On seeing the complainant, the accused Shyam Singh told that their rival had come. They all prepared and told father what are you looking for! Shoot at him. Then, the accused Bhagat Singh shot at him with his licence gun with the intention to kill him. He screamed. He received multiple injures of the gun shot. He fell down. Hearing his screams as well as the blow of the gun PW-5 Sri Avinashi Lal, PW-2 Kashi Ram and others, who were passing bye the field at the way, have reached and seeing to them all the above assailants have fled to their village. Had the witnesses would not reached; the assailants would have kill him. The above witnesses have seen the incident. The assailants could not be chased on account of fear. He was badly injured. The assailants maintain animosity with him. On the basis of the written report Ext. Ka-1, the Chik report Ext. Ka-10 was prepared by PW-8 Head Moharir Harinandan Murari and a case crime no. 163 of 1984 u/s 147,148,307 I.P.C. in Police Station Gadarpur was registered against seven accused persons on 25.10.1984 at 06:30 p.m. an entry in regard to the crime was made in the G.D. a carbon copy of which is Ext. Ka-11. 3. The injured Deshraj was medically examined by the Medical Officer PW 4 Dr. K.V. Singh at Primary Health Centre, Gadarpur on 25.10.1984 at 07:35 p.m. who prepared medical report Ext. Ka-2 in this regard. On the basis of the X-Ray report, PW-4 has also prepared supplementary report Ext. Ka- 3. 4. The investigation of the case was entrusted to PW-7 S.O. Bhoopal Singh, who in the course of investigation recorded 3 statements of the injured and the witnesses. He took samples of bloodstained and plain soil from the place of incident and sealed it and prepared FARD Ext. Ka-4. He recovered an empty cartridge of 12 bore from the place of incident which was sealed the recovery memo is Ext. Ka-5. The I.O. had arrested the accused and took in his possession a D.B.B.L. licence gun and the licence. After keeping the recovered items they were kept in sealed and recovery memo Ext. Ka-6 was prepared and an entry in the G.D. dated 26.10.1984 was made in Ext. Ka-12. After making spot inspection, the I.O. prepared the site plan Ext. Ka- 7. After completing investigation, the Charge Sheet Ext. Ka-8 was submitted on 05.11.1984 in case crime no. 163/1984 for the offence punishable u/s 147,148,307 I.P.C. against the accused Bhagat Singh & Preetam Singh who were shown to be arrested and the accused Shyam Singh, Jeet Singh, Amarjeet Singh, Gulzar Singh and Darshan Singh who were shown to be absconded. After arrest of the accused Shyam Singh, Jeet Singh, Amarjeet Singh, Gulzar Singh and Darshan Singh the I.O. has submitted Charge Sheet Ext. Ka-9 on 27.01.1985 against them for the same offence and crime number as shown above. The D.B.B.L. gun no. 11922-80 with 12 bore used cartridge each in two barrels were sent for ballistic examination and the examination report is Ext. Ka-13 on the record. 5. Learned Munsif Magistrate, Rudrapur on receipt of the charge sheet, after giving necessary copies to the accused persons as required u/s 207 Cr.P.C., committed the case to the Court of Sessions for trial on 02.11.1985 u/s 209 Cr.P.C. 6. On 16.04.1986, the learned I Addl. Sessions Judge, Nainital after hearing the parties framed the charge of offence punishable u/s 148, 307/149 I.P.C. against the accused persons Shyam Singh, Jeet Singh, Amarjeet Singh, Darshan Singh, Bhagat Singh and Pritam Singh. On the same day the accused Gulzar Singh was charged for the offence punishable u/s 147, 4 307 I.P.C. The charge was read over and explained to the accused persons who pleaded not guilty and claimed to be tried. On 30.01.1989 the learned II Addl. Sessions Judge, Nainital again framed separate charge of offence punishable u/s 147, and 147/149 I.P.C. against the accused persons Shyam Singh, Jeet Singh, Amarjeet Singh, Pritam Singh and Gulzar Singh. On the same day the accused Bhagat Singh was charged for the offence punishable u/s 148, 307 I.P.C and On the same day the accused Darshan Singh was separately charged with for the offence punishable u/s 148, 307/149 I.P.C. The charge was read over and explained to the accused persons who pleaded not guilty and claimed to be tried. 7. The prosecution, to prove its case, has examined PW-1 Deshraj, the injured, PW-2 Kashi Ram, PW-3 Jaswant Singh, PW-4 Dr. K.V. Singh Medical Officer, PW-5 Avinashi Lal S/o Bhaiya Das, PW-6 Avinashi Lal S/o Nihal Chand, PW-7 S.O. Bhoopal Singh Manral Investigating Officer, PW-8 H.C. 217 Harinandan Murari, PW-9 Constable 130 Soni Lal, PW-10 Dr. M.N. Joshi City Health Officer, PW-11 Ram Asre Pandey Scientific Officer Forensic Lab, Agra and PW-12 Bal Govind Srivastava X-Ray Technician. 8. The oral and documentary evidence was put to the accused persons in the form of questions u/s 313 Cr.P.C. who, in reply, denied the allegations made against them and have stated that they have been falsely implicated in the case. The accused persons did not produced any evidence in their defence. 9. After appreciating all the evidence available on record and hearing the learned counsel for the parties, the learned II Addl. Sessions Judge has convicted the accused/appellant Bhagat Singh for the offence punishable u/s 307 I.P.C. and awarded sentence to him to undergo rigorous imprisonment for a period 5 of 5 years’. By the judgment and order the learned II Addl. Sessions Judge acquitted the co-accused Shyam Singh, Jeet Singh, Gulzar Singh, Preetam Singh, Amarjeet Singh and Darshan Singh from the charges levelled against them. The present accused/ appellant was acquitted for the offence punishable u/s 148 I.P.C. 10. I have heard Sri Pankaj Purohit, learned counsel for the accused/appellant and Sri Prabhakar Joshi, learned Brief Holder for the State. 11. Before further discussion, it is pertinent to mention the injuries found in the person of the injured Deshraj PW-1. The injured Deshraj was initially examined medically by the Medical Officer PW-4 Dr. K.V. Singh, at Primary Health Centre, Gadarpur on 25.10.1984 at 7:35 p.m., who prepared medical report Ext. Ka-2 in this regard. The following injuries were found on the body of the injured Deshraj:- i. Multiple punctured wounds in number six, size circular in shape. Size measuring 0.5cm. x 0.5cm. in diameter in the area of 12cm. x 11cm. over the right side of cheek earpinna and neck. Edges are irregular, lacerated oozing of blood present from the wounds. There is no blackening, scorching and tattooing. Kept under observation and advised X- Ray-Direction front to back. ii. Wound of entrance-Punctured wound through and through over the anterior surface of right ear-pinna in the middle. Size 0.5cm. x 0.5 cm. circular in shape, edges are irregular and lacerated. Oozing of blood present, no blackening, no scorching, no tattooing present. (ii-2) Wound of exit-Punctured wound on the posterior part of right earpinna in the middle spindle shape. Size 0.75 cm. x 0.5cm. in diameter, 6 fresh oozing of blood present, margins averted, no blackening, no scorching, no tattooing. iii Abrasion 1.5cm. x 0.5cm. over the angle of right mandible, oozing of blood present. No blackening, no scorching, no tattooing. iv. Abrasion 0.5cm. x 0.25cm. on the outer margin right earpinna in the middle, oozing of blood present, no blackening, no scorching, no tattooing, v. Lacerated wound 0.7cm. x 0.5cm. x 0.25cm. over the right ear trigger, fresh oozing of blood present, there is no blackening, no scorching, no tattooing present. In the opinion of the Medical Officer, all the injuries were caused by blunt/hard object and by gun shot (firearm) pellet. The injuries were kept under observation and X-Ray was advised. Duration fresh. 12. X-Ray of the skull of the injured Deshraj was carried out by PW-12 Bal Govind Srivastava, under the supervision of PW- 10 Dr. M.N. Joshi, Medical Officer on 26.10.1984 at J.L.N. Hospital, Rudrapur. In the X-Ray, the Medical Officer has found 4 radio opaque shadows of size 2mm. x 2mm. each. The X-Ray report is Ext. Ka-13. 13. On the basis of X-Ray report PW-4 Dr. K.V. Singh, prepared the supplementary medical report Ext. Ka-3 on 30.10.1984 in this regard. In the opinion of the Medical Officer the injury was gunshot injury and confirmed by X-Ray. 14. The prosecution to prove its case, first of all, has examined PW-1 Deshraj, the injured who has deposed that the incident was of 25th October 1984 at about 5:00 p.m. He had gone to his fields. Crop of paddy had been spread in the granary (KHALIHAN) and he was going to see it. When he reached to his fields, he saw the accused/appellant Bhagat Singh armed with two barrel gun, and the accused Preetam Singh, Shyam 7 Singh, Jeet Singh, Amarjeet Singh armed with LATHIES were standing there. The accused Gulzar Singh was filling the bags with paddy from the granary. The accused Darshan Singh armed with a BALLAM was standing there. He identified the accused Bhagat Singh, Preetam Singh, Gulzar Singh and Darshan Singh present in the Court. On his approaching at the granary, the accused Shyam Singh told that their rival had come and at the instance of all the accused saying that BABA what are you looking for! Shoot at him, the accused/appellant Bhagat Singh shot at him with the gun in his hand, which hit at his right ear and neck. He received multiple injuries on account of which he fell down. On hearing his screams the witnesses Kashi Ram and Avinashi Lal S/o Bhaiya Das had reached at the same time on the place of occurrence and seeing them, all the assailants fled from the place of incident. Had the witnesses would not reached; the assailants would have kill him. He has further stated that Avinashi Lal and Kashi Ram had taken him to his house where Dr. Jaswant Singh met with him and he narrated that when he had gone to his fields, the accused Bhagat Singh on the instances of his associates had shot at him. Thereafter Dr. Jaswant took him to his shop at Gadarpur where he scribed the report Ext. Ka-1 from Avinashi Lal S/o Nihal Chand. What he narrated, the same was written in the report. The report was read over and thereafter he put his signatures on it. The report was read over in the Court and after hearing it; he identified his signatures on it. He had gone to Police Station Gadarpur alongwith Jaswant Singh with the written report Ext. Ka-1 and lodged the same in the Police Station. He was medically examined at Govt. Hospital Gadarpur and his X-Ray was conducted at Rudrapur. The accused persons maintain animosity in regard to the land. His bloodstained clothes were taken by the doctor at Gadarpur. The evidence of this witness on each and every aspect is reliable, believable and trustworthy. 8 15. PW-2 is Kashi Ram who has deposed that the incident was of 25th October 1984 at 5:00 p.m. He had gone at the house of Deshraj, for his own work, where he came to know that he had gone to the granary. He had been going at the granary to meet Deshraj. When he reached at the water channel near the granary, he heard gun shot sound simultaneously he heard screams of Deshraj, then he hurriedly reached there. He saw accused Bhagat Singh armed with a gun and the accused persons Shyam Singh, Preetam Singh, Gulzar Singh, Amarjeet Singh, Jeet Singh and Darshan Singh present there. Darshan Singh was armed with a BALLAM. Accused Gulzar had the bag in his hand and rest of the accused persons were armed with LATHIES. At the very moment Avinash Lal had reached near the granary. Seeing them, the accused persons fled from the place of occurrence. Deshraj was laid down in the field near the granary in the injured condition on receiving gun shot injury. They took Deshraj to his home from where he was taken to Gadarpur by Dr. Jaswant. He saw the accused Bhagat Singh while he was shooting at Deshraj. He knew the accused persons before the incident out of which accused Bhagat Singh, Preetam Singh, Gulzar Singh and Darshan Singh are present in the Court. 16. PW-3 is Jaswant Singh S/o Avinashi Lal, who has stated that the incident was of 25.10.1984 at about 05:15 p.m. He was in his village Vikram Nagar. Deshraj was hurt by the pellets at his neck, ear and cheek. Blood was oozing out. On meeting at the same time, Deshraj has told him that the accused Bhagat Singh had shot at him and his sons were his associates. Taking Deshraj, he came at Gadarpur. His clinic falls in the way to Gadarpur. On the dictation of the injured the report was written by Sri Avinashi Lal S/0 Nihal Chand. He took Deshraj to the Police Station where Deshraj lodged the report. Thereafter, he himself, Deshraj and one Constable had gone to hospital for medical examination. 9 17. PW-4 is Dr. K.V. Singh Medical Officer, who has deposed that he remained posted as such at the Primary Health Centre, Gadarpur from 25.10.1984 to 30.10.1984. On 25.10.1984 at 7:35 p.m. he examined the injured Deshraj, who was brought by Dr. Jaswant Singh. He found the injury mentioned in para-11 on the person of the injured Deshraj. The injuries could have been caused by some blunt object i.e. by the pellets of gunshot. The injuries were fresh which could have been caused on 25.10.1984 at about 05:00 p.m. X-Ray was advised. The X-Ray plate is no. 66 dated 26.10.1984 which is in two parts and the X-Ray report which has been prepared by Dr. M.N.Joshi, who on those days posted at Jawahar Lal Nehru Hospital Rudrapur, were received by him and on the basis of which he prepared supplementary medical report on 30.10.1984. The injuries could have been caused by a gunshot. The reports dated 25.10.1984 and 30.10.1984 are on his handwriting, which he prepared on the dates mentioned above. Medical Report dated 25.10.1984 is Ext. Ka-2 and the Supplementary Medical Report dated 30.10.1984 is Ext. Ka-3. Thumb impression of the injured was taken on Ext. Ka-2 at the time when he was medically examined, which he identified in the report. 18. PW-5 is Sri Avinashi Lal S/o Bhaiya Das, who has deposed that the incident was of 3¼ years’ before. The time was 5:00 p.m. He was at his fields. He heard sound of gunshot as well as screams of Deshraj. Deshraj was laid down in his fields near the boundary (MAINDH). Blood was oozing out. He saw the accused Bhagat Singh armed with a gun, accused Jeet Singh, Amarjeet Singh, Shyam Singh, Preetam Singh armed with LATHIES and accused Darshan Singh was armed with BALLAM. On seeing them they fled from the place of incident. The Accused Gulzar Singh carrying with bag was present at the place of occurrence with the accused Bhagat Singh and others. On seeing them all the assailants fled from the granary. They took Deshraj to his home and send him to Gadarpur with Dr. 10 Jaswant Singh for treatment. All the accused persons are present in the Court and he was acquainted with them before the incident. 19. PW-6 is Avinashi Lal S/o Nihal Chand, who has stated that on the date of incident i.e. on 25.10.1984 he set at the clinic of Dr. Jaswant Singh. Doctor was not there, therefore, he waited for him. The injured Deshraj came with the doctor. He wrote the report on the dictation of Deshraj. What he narrated, he wrote the same. The report was read over and thereafter the injured put his signatures on the report Ext. Ka-1. He identified the report. The Sub Inspector had visited the village on the same night, who took in his possession the bloodstained and simple soil from the spot and was sealed the same in separate containers and prepared recovery memo. He identified his signatures on the recovery memo Ext.Ka-4. The Sub Inspector also took in his possession an empty cartridge and sealed it and prepared a FARD Ext. Ka-5 in this regard. He identified his signatures on Ext. Ka-5. One sealed bundle was opened in the Court and out of the five cartridges kept inside, one empty cartridge was found identical, taken from the place of incident. 20. PW-7 is S.I. Bhoopal Singh Manral, Investigating Officer of the case. He has stated that he remained posted as Sub Inspector at Police Station Gadarpur from 25.10.1984 to 27.01.1985. The investigation of the case was entrusted to him from 25.10.1984. He recorded the statements of the witnesses during investigation. He recorded the statement of Head Constable Hari Nandan Murari and on reaching at the Govt. Hospital he recorded the statement of injured Deshraj, thereafter. After making spot inspection, he took samples of bloodstained and plain soil and sealed them in separate containers and prepared a FARD in this regard. The FARD Ext. Ka-4 is on his handwriting and under his signatures. One empty cartridge of 12 bore was recovered from the place of incident, 11 which was also sealed on the spot and prepared recovery memo Ext. Ka-5. The FARD is on his handwriting which was read over before the witnesses and he took their signatures on it. One bundle was opened in the Court and inside it a gun and five cartridges were taken out and on looking one cartridge he identified the same and told that it was the same which was recovered from the spot. Seeing the cover cloth, he identified the same that that is the same cloth in which recovered cartridge was sealed. The cartridge is Ext.-1 and the Cloth is Ext.-2. On the same day he recorded the statement of Avinashi Lal, Kashi Ram, Raghuvir Singh, Mulakhraj, Kartar Chand and Om Prakash. The accused Bhagat Singh was arrested on 25.10.1984 at 11:30 p.m. and a D.B.B.L. gun and a licence were taken in possession. A recovery memo was prepared in this regard and signatures of SI B. Sen were taken in it. The recovery memo Ext. Ka-6 is on his handwriting. Signatures of accused Bhagat Singh were also taken on it. He identified the recovered gun Ext.-3, the licence Ext.-4 and a piece of cloth Ext.-5 in which the gun was kept in sealed. On 27.10.1984 he made spot inspection and on the pointing out the witnesses he prepared the site-plan of the place of occurrence. The site-plan is Ext. Ka- 7, which has been prepared by him and is under his signatures. On 05.11.1984, he recorded the statements of Jaswant Singh and Avinashi Lal S/o Nihal Chand. The recovered goods were sent through Constable-130 Sone Lal for conducting examination through ballistic expert. After completion of investigation he submitted charge sheet Ext. Ka-8 on 05.11.1984 and one Ext. Ka-9 on 27.01.1985. 21. PW-8 is Head Constable-217 Harinandan Murari, who has deposed that on 25.10.1984 he was posted as Head Moharir at P.S. Gadarpur. He prepared the Chik Report Ext. Ka-10 on his own handwriting, on the basis of the written report submitted by Deshraj. An entry in this regard was made by him in the G.D. which is entered in RAPAT no. 32 at 18:30 p.m. One 12 carbon copy was also prepared in the same process, which is Ext. Ka-11 on the record. On 26.10.1984 at 1:30 p.m. Sri B.S. Manral, SI. Sri S.B. Sen and others after their return have admitted the accused in the lockup and submitted the recovered goods in the Police Station. Entry in this regard was made in the G.D. on 26.10.1984 at 1:30 p.m. and a carbon copy was made in the same process which is Ext. Ka-12. 22. PW-9 is Constable-130 Soni Lal, who has stated that on 13.11.1984 he was posted at Police Station Gadarpur. On this very day he took sealed bundles of a gun and an empty cartridge to the Forensic Lab, Lucknow. He submitted the same goods in sealed condition in the Forensic Lab, Lucknow. During the period when the sealed goods were in his possession, the same were in sealed condition. 23. PW-10 is Dr. M.N. Joshi, Medical Officer, who has deposed that on 26.10.1984 he was posted as such at Jawahar Lal Nehru Hospital, Rudrapur. The injured Deshraj was referred by the Medical Officer in-charge, Primary Health Centre, Gadarpur for conducting X-Ray. X-Ray of the injured Deshraj was conducted on his supervision. The X-Ray plate 66/26.10.1984 is in two parts in which name, address and identification marks of the injured are mentioned. The X-Ray plats Ext. -6 and Ext.-7 are under his signatures. He sent the X- Ray plates and his report to Primary Health Centre, Gadarpur. The report is not before him in the Court. He saw 4 radio opaque shadows size 2mm. x 2mm. in the X-Ray plates. It could be shadow of pellets. 24. PW-11 is Ram Asre Pandey, who has stated that he remained posted for about 11 years’ at Forensic Lab, Lucknow and thereafter he is working in the Forensic Lab, Agra as 13 Ballistic Expert. On 14.11.1984 Constable-130 C.P. Soni Lal had submitted two sealed bundles with the sample seal and letter of Munsif Magistrate, Rudrapur at Forensic Lab, Lucknow. The seal was intact and were being matched with the sample seal. On opening one sealed bundle; one 12 bore empty cartridge was taken out. On opening the other sealed bundle; one D.B.B.L. gun no. 11922-80 was taken out. After making examination; he prepared the conclusive report under his supervision by tying in two copies, of whose one original is before the Court in his file, which is Ext. Ka-13. The said conclusion is based upon the microscope tests. 25. PW-12 is Bal Govind Srivastava, X-Ray Technician. He has stated that on 26.10.1984 he was posted as such at Jawahar Lal Nehru Hospital, Rudrapur. He did X-Ray of the skull of the injured Deshraj referred by Dr. K.V. Singh, Medical Officer in- charge, Primary Health Centre, Gadarpur and under the orders of Dr. M.N. Joshi, Medical Officer,