HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 216 of 2005 1.Sushil S/o Devi Chand, 2.Pappu S/o Babu Ram, Both residents of village Sultanpur, P.S. Laksar, District Haridwar. ……..Appellants. (In Jail) Versus State of Uttarakhand. …….Respondent Mr. S.K. Agarwal, Senior Advocate assisted by Mr. Swapnil Bisht, Advocate for the appellants. Mr. Amit Bhatt, A.G.A. for the State/respondent. Dated: March 10, 2011 Coram: Hon’ble Prafulla C. Pant, J. Hon’ble V.K. Bist, J. Prafulla C. Pant, J. (Oral) This appeal, preferred under Section 374 of the Code of Criminal Procedure, 1973 (for brevity Cr.P.C.), is directed against the judgment and order dated 2nd December, 2005 passed by Additional Sessions Judge/ Second Fast Track Court, Haridwar in Sessions Trial No.411/2002 whereby appellants Sushil & Pappu are convicted under Section 302 read with Section 34 of the Indian Penal Code, 1860 (for short I.P.C.) and one punishable offence under Section 452 I.P.C. Each one of the appellants has been sentenced by the trial court to imprisonment for life and also directed to pay fine of ` 5,000/- under Section 302/34 I.P.C., rigorous imprisonment for a period of seven years and directed to pay a fine of ` 3,000/- for the offence punishable under Section 452 I.P.C. 2 2. Heard learned counsel for the parties and perused the Lower Court’s Record. 3. Prosecution story, in brief, is that on 03.08.2002 at about 6:00 p.m. within the limits of Village Sultanpur, P.S. Laksar, District Haridwar, Sunil Kumar (deceased) was sitting on a cot in his GHER (courtyard) when accused/appellants Sushil & Pappu, each one armed with TABAL (heavy sharp edged weapon), assaulted and killed him. This incident was witnessed by P.W.4 Km. Roopa (younger sister of the deceased), who was inside the house. She raised alarm, on which P.W.2 Raj Kumar and P.W.3 Om Prakash, both residents of Sultanpur (where the incident has taken place), reached and saw accused/ appellants assaulting Sunil. They made an attempt to apprehend the accused but they succeeded in fleeing way. Meanwhile, P.W.1 Anil Kumar (brother of the deceased) also reached at the spot and saw the two accused/ appellants running from the scene of occurrence towards East. He (P.W.1) got lodged First Information Report (Ext. A-1) at Police Station Laksar on the very day at about 7:00 p.m., on the basis of which Check Report (Ext. A-13) was prepared, after registering crime no.95/2002 relating to offence punishable under Section 302 I.P.C. against the accused/appellants Sushil & Pappu. The crime was investigated by P.W.8-Sub Inspector Yogendra Singh Bhadauria, who immediately sent the Police team to the spot. P.W.6-Sub Inspector Avdhesh Kumar Pandey took the dead body of Sunil Kumar in his possession and got prepared Inquest Report (Ext. A-2) at about 8:00 p.m. on the very day (03.08.2002) in the presence of the witnesses and sealed the body. He also got prepared Police Form No.13 (Ext. A-3), Sketch of the dead body 3 (Ext. A-4), Sample Seal (Ext. A-5) and letter to Chief Medical Officer (Ext. A-6). The dead body, in the sealed condition, was sent for post mortem examination. P.W.7- Dr. P.K. Bhatnagar of District Hospital, Haridwar conducted post mortem examination on 04.08.2002 at about 12:15 p.m. and recorded as many as six incised wounds on the dead body of Sunil Kumar and prepared Autopsy Report (Ext. A-9). The Medical Officer opined that the deceased had died of shock and haemorrhage due to ante mortem injuries. Meanwhile, the Investigating Officer started interrogating the witnesses and got prepared the site plan (Ext. A-10) of the place of incident. On 06.08.2002 recovery of the weapons, used in the crime, was made and recovery memorandum (Ext. A-8) was prepared, which was signed by the two accused. On completion of investigation, Charge Sheet (Ext. A-12) was filed by the Investigating Officer against the two accused, namely, Sushil S/o Devi Chand Saini & Pappu S/o Babu Ram for their trial in respect of offences punishable under Section 452, 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., appears to have committed the case to the Court of Sessions for trial. On 13.02.2003, learned Sessions Judge, Haridwar, after hearing the parties, framed charge of offences punishable under Section 302/34 and 452 I.P.C. to which both the accused pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W.1-Anil Kumar (informant), P.W.2 Raj Kumar (an eyewitness), P.W.3-Om Prakash (another eyewitness), P.W.4-Km. Roopa (sister of the deceased and eyewitness), P.W.5-Madan Singh (witness 4 of the inquest report), P.W.6-Sub Inspector Avdhesh Kumar Pandey, who prepared the Inquest Report and the Recovery Memo, P.W.7-Dr. P.K. Bhatnagar, who conducted post mortem examination, P.W.8-Sub Inspector Yogendrea Singh Bhadauria, the Investigating Officer and P.W.9-Head Constable Babu Ram, who prepared the check report of First Information Report. Oral and documentary evidence was put to the accused under Section 313 Cr.P.C., in reply to which they alleged that they have been falsely implicated due to enmity. In defence, they got examined D.W.1-Dr. Rakesh Kumar Sharma & D.W.2-Ilam Chand. After hearing the parties, the Trial Court found both Sushil & Pappu guilty of charge punishable under Section 452 & 302 read with Section 34 I.P.C. After hearing on sentence, each one of them was sentenced to imprisonment for life and directed to pay a fine of ` 5,000/- under Section 302/34 I.P.C. and rigorous imprisonment for a period of seven years and directed to pay a fine of ` 3,000/- under Section 452 I.P.C. Aggrieved by the said judgment and order dated 02.12.2005, passed by Additional Sessions Judge/ Second Fast Track Court, Haridwar, in Sessions Trial No.411/2002, this appeal is filed by the convicts. 5. Before further discussion, we think it just and proper to mention the ante mortem injuries found on the body of Sunil Kumar by P.W.7-Dr. P.K. Bhatnagar, who prepared Autopsy Report (Ext. A-9). The ante mortem injuries are being reproduced below: 1. Incised wound 22 x 3 cm., brain cavity deep, front of forehead, extending up to left ear. 2. Incised wound 18 x 8 cm., front of left side face, maxilla bones cut, orbital bones cut. 5 3. Incised wound 16 x 3 cm., bone deep, bridge of nose found cut. 4. Incised wound on the back of the neck 10 x 7 cm., bone of the neck found fractured. 5. Incised wound 5 x 3 cm., on right hand side, on the posterior aspect, bone deep. 6. Incised wound 2 x 1 cm. on the left hand, posteriorly on the dorsal aspect, between little finger and middle finger. 6. P.W.7-Dr. P.K. Bhatnagar opined, in the Autopsy Report (Ext. A-9), that the deceased had died of shock and haemorrhage due to ante mortem injuries. In his statement before the Court, he has stated that the injuries could have been caused on 03.08.2002 at about 6:00 p.m. by heavy sharp edged weapon, like TABAL. From the statement of the Medical Officer, read with Autopsy Report, it is established on record that Sunil Kumar died a homicidal death on 03.08.2002. Now, we have to examine whether the accused/appellants Sushil & Pappu trespassed in the house of the deceased with intention to kill him and thereafter committed his murder? 7. P.W.1-Anil Kumar, who is the brother of the deceased and got lodged First Information Report (Ext. A- 1), has simply stated that payment of some money was due from accused Sushil to the deceased and on 03.08.2002, in the morning, Sunil (deceased) demanded his money from accused Sushil. The witness further states that in the evening, he was going towards his house from his shop, when he heard cries of his sister Roopa (P.W.4) and when reached at the spot he saw his brother lying dead. He has further stated that his sister Roopa (P.W.4) 6 told him that Pappu & Sushil have killed Sunil and ran away. P.W.1-Anil Kumar has further stated that by the time he reached at the spot, many people had come there. This witness is not eyewitness of commission of murder of Sunil Kumar by the two accused. 8. P.W.2-Raj Kumar, who is also resident of the same village Sultanpur, has stated that on the date of incident at about 6:00 p.m. when he reached near house of Sunil, he heard alarm raised by Sunil’s sister and saw accused/appellants Pappu & Sushil assaulting Sunil with TABALS. The witness further states Om Prakash (P.W.3) also witnessed the incident. The witness has further stated that he and Om Prakash made attempt to apprehend the accused but they succeeded in running away towards East. This witness has been subjected to lengthy cross examination, but nothing has come out in his statement, which creates reasonable doubt in the testimony given by the witness. 9. Statement of P.W.2-Raj Kumar is fully corroborated by the statement of P.W.3-Om Prakash, who is another eyewitness of the incident. This witness, resident of the same village, has narrated that on 03.08.2002, he and Raj Kumar were coming towards the village from the Bus Stop and when reached near GHER (courtyard) of Raj Kumar, they saw Sunil, who was sitting on the cot, being assaulted by accused Sushil & Pappu. The witness further states that Sunil’s sister was raising alarm. This witness also states that he, along with Raj Kumar, made attempt to catch hold of the accused but they succeeded in fleeing away towards East. This witness has further stated that he witnessed preparation of Inquest Report by the Police, 7 after the incident. This witness was also cross examined, at length, by the defence counsel but there is nothing in his cross examination which shakes the testimony given by the witness in his examination-in-chief. Names of both these witnesses are mentioned in the First Information Report (Ext. A-1), which appears to have been lodged promptly within in one hour of the incident. 10. P.W.4-Km. Roopa is the star eyewitness, whose presence in her house with her brother Sunil, is natural. She has also narrated the prosecution story, as mentioned above, while discussing the evidence of P.W.2-Raj Kumar and P.W.3-Om Prakash. This witness has also corroborated statement of P.W.1-Anil Kumar, who lodged the First Information Report and stated that in the morning of the day of incident, Sunil (deceased) has demanded his money from accused Sushil. 11. Having gone through the statement of the witnesses, examined on behalf of the prosecution and those of the two witnesses examined on behalf of the defence, we concur that the finding recorded by the trial court that prosecution has successfully proved charge of offences punishable under Section 452, 302/34 I.P.C. against the accused/appellants Sushil & Pappu. 12. Learned counsel for the appellants drew attention of this Court to the statement of D.W.1-Dr. Rakesh Kumar Sharma and that of D.W.2-Ilam Chand and it is argued that the shop of Dr. Rakesh Kumar Sharma is not at the place where the witnesses examined on behalf of prosecution state to be there, as such, the statements of P.W.2-Raj Kumar and P.W.3-Om Prakash can not be said 8 to be reliable. The evidence adduced by this witness, in our opinion, is not sufficient to create reasonable doubt in the testimony of the eyewitnesses examined on behalf of the prosecution. 13. It is further pointed out that D.W.2-Ilam Chand runs a floor mill near the house, where the incident is said to have been taken place and his statement creates doubt, as to the manner in which prosecution alleges crime is committed. On careful scrutiny of the statement of D.W.2, we find that he states that he saw one person running at about 6:00 p.m. on the day of incident from his floor mill. He further states that on seeing Sunil (deceased), in an injured condition lying on the cot, he raised alarm. In our opinion, the testimony given by P.W.4- Km. Roopa Devi is of much higher quality as compared to the one given by this witness, for the reason Km. Roopa Devi (P.W.4) had an opportunity to see the two accused coming inside the house, assaulting Sunil, and, thereafter running away. While D.W.2-Ilam Chand, who claims to be in the neighborhood, could see one person running from his floor mill. From the statement of D.W.2-Ilam Chand, it cannot be said that he had an opportunity to see, as to who entered in the courtyard of Sunil Kumar and assaulted him. Similarly, the statement of D.W.1-Dr. Rakesh Kumar Sharma also does not shake the testimony of eyewitnesses P.W.2-Raj Kumar & P.W.3-Om Prakash for the reason that it is quiet possible that the clinic, run by this witness, might be at some distance from the place where the two witnesses have stated that to be. But that is not a sufficient reason to discard their testimony, which is otherwise trustworthy, supported and corroborated by the statement of P.W.4-Km. Roopa Devi. As to the existence 9 of the clinic of another Dr. Rakesh Kumar Saini, this witness has admitted that he also runs a clinic at some distance. This witness has also stated that there is yet another Doctor, who runs clinic in Mahendpur Road, in the area. 14. For the reasons, as discussed above, we do not find force in this appeal, which, in our opinion, is liable to be dismissed. Accordingly, the appeal is dismissed. The conviction and sentence recorded by the Trial Court against two accused, namely, Sushil S/o Devi Chand Saini & Pappu S/o Babu Ram, in respect of offence punishable under Section 302 read with Section 34 and 452 I.P.C., is hereby affirmed. They are in jail. Let a copy of this judgment be sent to the Superintendent of the jail concerned. The Lower Court’s Record be sent back. (V.K. Bist, J.) (Prafulla C. Pant, J.) 10.03.2011 NCM: