IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 535 of 2001 (Old No. 163 of 1992) Ratan Singh S/o Swaroop Singh, R/o Anand Nagar Tiliyapur, P.S. Sitarganj, District Nainital. ………………………..Appellant. Versus State …………..Opp Party. Sri B.S. Adhikari, Advocate for the appellant. Sri Harish Pujari, Additional Government Advocate for the State. Hon’ble Prafulla C. Pant, J. Hon’ble Dharam Veer, J. [Oral-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 17.01.1992, passed by learned II Additional Sessions Judge, Nainital, in Sessions Trial No. 175 of 1990, whereby accused / appellant Ratan Singh has been 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. 3000/- (2) Heard learned counsel for the parties and perused the lower court record. (3) Prosecution story in brief is that on 30th December 1989, at about 6 P.M., in village Kotkharra, within the limits of Police Station Lalkuon, Mohan Singh (deceased), R/o Deonagar Shakti Farm, had come to Trilok Singh (P.W.1) to ask him if he would transport his sugarcane to the crusher. Trilok Singh (P.W.1) agreed to the request of Mohan Singh (deceased). Thereafter, both had their meals in the house of Trilok Singh. Meantime Inder Singh (P.W.4), resident of Taliapur, also came there and the three started talking among themselves regarding sale and purchase of buffalo. Mohan Singh (deceased) was sitting on a bench while Trilok Singh and Inder Singh were sitting on a cot. At about 7 P.M. accused / appellant Ratan Singh, resident of Anand Nagar, Taliapur, armed with his licensed gun, came there and objected to Mohan Singh as to why he had opened a pathway through his (Ratan Sing’s) field. He (Ratan Singh) started hurling abuses at Mohan Singh. On this Mohan Singh asked Ratan Singh not to hurl abuses at him. Thereafter, accused / appellant Ratan Singh fired a shot from his gun at Mohan Singh from close range and killed him at the spot. Ratan Singh ran away from the place of incident thereafter. The incident was witnessed not only by Trilok Singh (P.W.1) and Inder Singh (P.W.4) but also by the family members of Trilok Singh. Next morning on 31.12.1989, Trilok Singh went to Police Station and got scribed the First Information Report (Ext.A.1) through Nandan Singh and lodged the same with Police Station Lalkuon, Nainital, at about 10.40 A.M., where it was registered as Crime No. 323 of 1989, relating to offence punishable under Section 302 I.P.C. against Ratan Singh. The distance between the Police Station and place of incident is said to be 20 Kms., Investigation was taken up by P.W.7 Sub Inspector Mohd. Iqbal, who went to the spot, inspected the dead body and prepared the inquest report (Ext.A-7), after taking the dead body of Mohan Singh in his possession. He also prepared sketch of the dead body (Ext.A-8), Police Form No. 13 (Ext.A-9), sample seal (Ext.A-10) and letter to Chief Medical Officer (Ext.A-11), requesting him for postmortem examination. The dead body was got sent by the Investigating Officer through two constables including Constable Pancham Singh for post mortem examination to Civil Hospital, Haldwani. On 01.01.1990, P.W.3 Dr. Arvind Agarwal, conducted the postmortem examination at 12.05 P.M. and prepared autopsy report (Ext.A-2). He opined that cause of death of the deceased was shock and hemorrhage on account of ante mortem injuries. The Investigating Officer meanwhile continued with the investigation and prepared site plan (Ext.A-12). He also took the blood stained soil and empty cartridge found from the place of incident and prepared memorandum (Ext.A-3). The Investigating Officer further took the lamp, in the light of which the witnesses saw the commission of crime, bench and cot on which the deceased and witnesses were sitting respectively and prepared memorandum (Ext.A-4) He arrested the accused on 05.01.1990 and prepared memorandum (Ext.A-13). After completion of investigation charge sheet (Ext.A-14) was filed against accused Ratan Singh by the Investigating Officer before the Magistrate. (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 Session for trial. Learned Session Judge, Nainital, appears to have transferred the case to the court of II Additional Sessions Judge, Nainital, who on 11.09.1990, after hearing the parties, framed charge of offence punishable under Section 302 I.P.C. against the accused Ratan Singh, who pleaded not guilty and claimed to be tried. On this prosecution got examined P.W.1 Trilok Singh, complainant and eyewitness, P.W.2 Jayanti Devi eyewitness and sister of complainant, P.W.3 Dr. Arvind Agarwal, who conducted postmortem examination on the dead body of Mohan Singh, P.W.4 Inder Singh (declared hostile), P.W.5 Madan Singh, before whom the blood stained soil and empty cartridge were recovered from the spot, P.W.6 Constable Dev Ram, who along with Pancham Singh took the dead body in sealed condition for postmortem examination, and P.W.7 Sub Inspector Mohd. Iqbal, the Investigating Officer. The oral and documentary evidence was put to the accused / appellant, under Section 313 Cr.P.C. to which the accused alleged the same to be false. He also alleged that he has been falsely implicated due to enmity. After hearing the parties, the trial court found the accused guilty of charge of offence punishable under Section 302 I.P.C. and thereafter he heard on sentence and sentenced the convict to imprisonment for life and also directed to pay fine of Rs.3,000/- He further directed that out of the fine Rs.2,000/- shall be paid to the widow and the children of the deceased. Aggrieved by said judgment and order dated 17.01.1992, passed by learned II Additional Sessions Judge, Nainital, in Sessions Trial No. 175 of 1990, this appeal is filed before Allahabd High Court on 21.01.1992. The appeal was admitted there on 22.01.1992 and the appellant was enlarged on bail. The appeal is received by this Court under Section 35 of U.P. Reorganization Act, 2000, for its disposal. (5) Before further discussion, we think it just and proper to mention here the ante mortem injuries found on the body of deceased on 01.01.1990 by P.W.3 Dr. Arvind Agarwal, who conducted postmortem examination at 12.05. P.M. and prepared autopsy report (Ext.A-2) The ante mortem injuries are being reproduced below:- (i) Wound of entry 3.8cm x 3cm x chest cavity deep present on left upper chest. It is present 2 cm away from mid line and just below medial end of left collar bone. Margins inverted and lacerated, blackening and tattooing present on margins. Medical end of 2nd rib broken. (ii) 6 wounds of exit present on left back in scapular and inter-scapular area in an area of 10 cm x 6cm. Each wound of exit is approximately of size of .8cm x .8cm. Margins are everted and irregular. No blackening and tattooing present. Underneath scapula and fourth and fifth ribs broken. In the opinion of the Medical Office the cause of death was shock and hemorrhage due to ante mortem injuries received by the deceased. From the above medical evidence it is established that Mohan Singh (deceased) has died homicidal death and he suffered firearm injuries before his death. Now the question is that who has caused death of the deceased. (6) P.W.1 Trilok Singh has stated on oath that on the day of incident at about 6 P.M. he was sitting in his JHALA (house) when Mohan Singh (deceased) came to him with he request that he (Trilok Singh) may take him sugarcane to the crusher. According to this witness he agreed to the request of Mohan Singh, thereafter, according to P.W.1 Trilok Singh he asked Mohan Singh to have meals and both of them took their meals. P.W.1 Trilok Singh further states that he had a buffalo, which he wanted to sell. Since, meanwhile, Inder Singh (P.W.4) came there to have talks for purchase of buffalo, the three started talking among themselves. The witness further states that he and Inder Singh were sitting on a cot and Mohan Singh on the bench. Meanwhile, at about 7 P.M. accused / appellant Ratan Singh armed with his gun came there and objected to Mohan Singh as to why he had made pathway over his field. He (accused / appellant) started hurling abuses at Mohan Sing. To this, Mohan Singh asked Ratan Singh not to do so. Ratan Singh told Mohan Singh that he would kill him. On this Mohan Singh asked him (Ratan Singh) to dare to kill. This infuriated Ratan Singh and he fired a shot from his gun on the chest of Mohan Singh, who died at the spot. Thereafter, according to the witness Ratan Singh ran away with his gun. (7) P.W.2 Jayanti Devi, who is sister of complainant Trilok Singh states that on the day of incident at about 7 P.M., she was in the kitchen. She further states that she provided meals to Trilok Singh and Mohan Singh whereafter Inder Singh also came. P.W.2 Jayanti Devi further states that Inder Singh and Trilok Singh were sitting on a cot and Mohan Singh was sitting on a bench when Ratan Singh armed with gun reached there and objected to him as to why he (Mohan Singh) had made a RASTA over his (Ratan Singh’s) field. The witness further states that accused hurled abuses at Mohan Singh and, thereafter, he fired a shot at Mohan Singh who died at the spot. The witness further states that Ratan Singh ran away with his gun. As such, P.W.2 Jayanti Devi, sister of the complainant has corroborated the entire prosecution story as narrated by P.W.1 Trilok Singh. Though P.W.4 Inder Singh has not supported the prosecution story and was declared hostile but the statement of the above two eyewitnesses, namely, P.W.1 Trilok Singh and P.W.2 Jayanti Devi sufficiently prove on record the prosecution story that accused Ratan Singh killed Mohan Singh in the manner narrated above. (8) Learned counsel for the appellant argued that P.W.2 Jayanti Devi has admitted in her cross-examination that on hearing the sound of gun shot she came out and as such she cannot be said to be an eyewitness of the incident. Having gone through the entire statements made by complainant P.W.1 Trilok Singh and P.W.2 Jayanti Devi, we found that P.W.2 Jayanti Devi has corroborated the fact that she provided meals to the deceased and complainant and thereafter the two were sitting with Inder Singh when Ratan Singh came there. It is true that she had admitted having come out on hearing sound of firing shot but she has witnessed the person who came there with gun and ran away with gun. As such merely for the reason that she was in the kitchen when the fire was shot, does not make the prosecution story doubtful. (9) Sri B.S. Adhikari, learned counsel for the appellant further argued that recovered gun from the accused Ratan Singh was a licensed gun and the Investigating Officer should have sent the same to the ballistic expert who could have corroborated the fact that the said gun was used in the commission of crime, but by not doing so the prosecutions story should not be believed. Learned Additional Government Advocate in reply to this contended that there is clear eyewitness account of the incident given by the two witnesses regarding commission of crime by Ratan Singh and as such whether or not Investigating Officer obtained the report from ballistic expert is not of much consequence. We agree with the learned Additional Government Advocate that where there is clear cut eyewitness account of the independent eyewitnesses who had not enmity with accused /appellant, the prosecution story cannot be disbelieved merely for the reason that the Investigation Office has not sent the gun recovered, to the ballistic expert. (10) Thirdly, on behalf of accused / appellant, it is submitted that provisions of Sections 157 and 158 Cr.P.C. are not complied with as the Investigating Officer (P.W.7) Sub Inspector Mohd. Iqbal has admitted that endorsement of sending the copy of First Information Report to the Magistrate is dated 5th January 1990. We think it necessary to mention here that the object of the aforesaid provisions of Cr.P.C. is to minimize the chances of ante timing First Information Reports. From the record, it reveals the inquest report was prepared on 31.12.1989 and in said inquest report there is mention of Crime No. 323 of 1989, relating to offence punishable under Section 302 I.P.C. The said fact further gets corroboration from inquest report (Ext.A.7) and the postmortem examination report (Ext.A-2) which is sent by Medical officer on 1st January 1990. As such merely for the reason that the First Information Report was sent late by the Investigating Officer to the Magistrate does not create any reasonable doubts as to the fact that the First Informant Report was not lodged on 31st December 1989. (11) Lastly it is argued on behalf of the accused / appellant Ratan Singh that the postmortem report shows that there was semi digested food in the stomach of the deceased while according to the witnesses hardly after ten minutes of taking food Ratan Singh fired shot at the deceased. We do not find much force in the submission of learned counsel for the appellant for the reason that after the food was taken by the deceased and lying in the stomach it can normally be said to be a semi digested food, and we do not see any reason which creates a reasonable doubt in the prosecutions story on that count. (12) Attention of this Court is also drawn on behalf of the appellant to the fact that P.W.1 Trilok Singh himself has admitted that before the accused fired shot at the deceased, the deceased had asked the accused to dare to kill him. On its basis an argument is developed that since the provocation was given by the deceased, even if the prosecution story is believed, it only constitutes the culpable homicide not amounting to murder. We find substance in the argument of learned counsel for the appellant for the reason that accused / appellant Ratan Singh had gone to Mohan Singh to object as to why he made pathway over his (Ratan Singh’s) field and on this when the accused told the deceased that he would kill him, the deceased provoked the accused to dare to kill. Thereafter, accused has fired only one shot and ran away from the spot. Considering the provocation coupled with the above fact, this Court is of the view that the act on the part of the accused Ratan Singh constitutes culpable homicide not amounting to murder punishable under Section 304 Part I of I.P.C. and not one punishable under Section 302 I.P.C.. (13) Therefore, for the reasons as discussed above, this appeal deserves to be partly allowed and is partly allowed. The judgment and order dated 17th January 1992, passed by learned II Additional Session Judge, Nainital, in Session Trial No. 175 of 1990 is set aside to the extent it records conviction of Ratan Singh under Section 302 I.P.C. and the sentence awarded there under. Instead the conviction and sentence is modified. Accused / appellant Ratan 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. The accused / appellant Ratan Singh is on bail. His bail is cancelled. He shall surrender before the court concerned. Registry is directed to send the record to the lower court to make the accused / appellant Ratan Singh serve out the sentence, as modified by this Court. (Dharam Veer, J.) (Prafulla C. Pant, J.) 29.04.2008 NS