IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 1359 of 2001 (Old No. 61/1997) Kulbinder Singh alias Gindi …Appellant Versus State …Respondent Mr. Chandramauli Shah, Amicus Curiae for the appellant Mr. S.S. Adhikari, A.G.A. for the State/respondent Hon’ble B.C. Kandpal, J. Hon’ble Nirmal Yadav, J. Per: Hon’ble B.C. Kandpal, J. (Oral) This appeal, preferred under Section 374 Cr.P.C., is directed against the judgment and order dated 30.4.1997 passed by IInd Additional Sessions Judge, Nainital, in Sessions Trial No. 266 of 1991, whereby accused/appellant has been convicted under Section 302 I.P.C. and sentenced to undergo life imprisonment. 2- Prosecution story in brief is that Amar Kaur (PW-1) lodged an F.I.R. on 16.6.1991 with Police Station Jaspur, Nainital, alleging therein Lad Kaur, sister of accused Kulbinder Singh, had relations with her nephew Bachan Singh (PW-2). Her husband Gurdeep Singh made to understand Bachan Singh and he also told accused to make to understand his sister. On this, accused got angry with complainant’s husband and told him that he will have to face the consequences for disreputing his sister. Due to this enmity, on 16.6.1991 at 1.30 p.m. in the night, accused Kulbinder Singh @ Gindi, his brother Charan Singh @ Channi along with an 2 another person, entered in her house. On entering the accused in her house, when she started raising alarm, her mouth was shut with a chunni (a woman’s small size upper covering) by the person accompanied with the accused. On hearing the alarm, her son Fumna Singh also woke up. Meanwhile, accused Kulbinder Singh shot fire at her husband with the country-made pistol, due to which he died at the spot. When her son raised alarm, accused ran away towards southern side and accused Gindi and Channi were seen and identified by Bachan Singh (PW-2) and Hartansh Singh in the light of electric bulb. The complainant got scribed the F.I.R. (Ext.Ka.1) through Santokh Singh (PW-3), which was lodged on 16.6.1991 at 2.45 a.m. at P.S. Jaspur where crime was registered. The investigation of the case was taken up by S.I. Jagan Singh (PW-6), who inspected the place of incident and prepared site plan (Ext.Ka.6). He took bloodstained earth and simple earth, running electric bulb and chunni in his possession and prepared their recovery memos vide Ext.Ka.3, Ext.Ka.4 and Ext.Ka.7. The investigating officer also took in his possession bloodstained cushion and cot baan (cord of twisted grass, etc. used for bottom of beds) and prepared recovery memo as Ext.Ka.5. The statement of witnesses was recorded; inquest report (Ext.Ka.2) on the dead body of the deceased was prepared and dead body was sent for post mortem examination. After completion of the investigation the investigating officer (PW-6) submitted charge sheet against the accused Kulbinder Singh and Channi Singh before the court of A.C.J.M., Kashipur. 3 3- After submission of the charge sheet the appellants were committed to the court of Sessions and the learned Sessions Judge framed the charge against accused Kulbinder Singh @ Gindi under Section 302 I.P.C. and against accused Charan Singh @ Channi under Section 302/34 I.P.C. The accused/appellants denied of the charges levelled against them and claimed their trial. 4- It is pertinent to mention here that accused Charan Singh @ Channi died during trial and hence case against him has been abated on 21.3.1994. 5- The prosecution in order to bring the guilt of the appellants to home, produced PW-1 Amar Kaur (complainant and eyewitness of the case), PW-2 Bachan Singh (witness of the fact), PW-3 Santokh Singh (scribe of the written report), PW-4 Surta Singh (witness of the panchayatnama), PW-5 C.P. 1043 Bhisham Kumar, witness who carried the dead body for post mortem examination, PW-6 S.I. Jagan Singh (investigating officer) and PW-7 Dr. R.S. Gupta, who conducted the post mortem on the dead body of the deceased. 6- After the evidence of the prosecution was over, the statement of the accused was recorded under Section 313 Cr.P.C. The accused denied the prosecution case and alleged that he has been falsely implicated. However, the accused did not adduce any evidence in their defence. 7- The trial court, after having perused the entire record on record and hearing learned counsel for the parties, convicted the accused/appellant under 4 Sections 302 I.P.C. and sentenced him for life imprisonment, vide judgment and order dated 30.4.1997. 8- Feeling aggrieved by the aforesaid impugned judgment and order the accused/appellant has preferred the present appeal which has been placed before us for disposal. 9- We have heard Sri Chandramauli Shah, learned Amicus Curiae for the appellant, Sri S.S. Adhikari, learned A.G.A. for the State/respondent and perused the record. 10- Before further discussion, it is pertinent to mention here that post mortem examination on the dead body of the deceased Gurdeep Singh was conducted on 16.6.1991 at 2.15 p.m. at L.D. Bhatt Government Hospital, Kashipur, by Dr. R.S. Gupta (PW-7), who found the following ante mortem injury on his person: - (i) Oval wound inverted margin size 3 cm x 2 cm x tissue deep on right second intercostal space 5 cm literal to the right sternal border. 11- The Medical Officer (PW-7), at the end of post mortem examination, opined that deceased died on account of shock and hemorrhage due to ante mortem injuries. He further opined that the said injury could have been caused by country-made pistol in the intervening night of 15/16.6.1991 at 1.30 p.m. The statement of PW-7 Dr. R.S. Gupta, read with autopsy report (Ext.Ka.15), clearly establishes on record that Gurdeep Singh died 5 homicidal death. Now, the question to be examined by this Court is whether accused/appellant committed murder of Gurdeep Singh (deceased), or not. 12- PW-1 Amar Kaur (complainant), who is the eyewitness of the case, has stated that on the date of incident i.e. on 15.6.1991 in the night she along with her family members was sleeping in her house. On about 1.30 p.m. she woke up on hearing sound of footsteps and she saw accused Kulbinder Singh, Channi accompanied with a person entered in the room. At that time, light was emitting from the electric bulb in the room. This witness has further stated that when she started raising alarm, her mouth was shut with a chunni by the person accompanied with the accused. On hearing the alarm, her son Fumna Singh also woke up. Meanwhile, accused Kulbinder Singh shot fire at her husband with the country-made pistol, due to which he died at the spot. This witness has also stated that she got scribed the report of the incident through PW-3 Santokh Singh and lodged the same on 16.6.1991 at 2.45 a.m. at P.S. Jaspur 13- The statement of the eyewitness (PW-1) gets corroboration from the statement of Bachan Singh (PW-2), who has stated that he saw the accused coming out from the house of the deceased. He has also stated that on 16.6.1991 at 1.30 p.m. he was sleeping in his house. On hearing the sound of fire shot he woke up and when he reached at the spot he saw accused Kulbinder Singh, Charan Singh accompanied with another person coming out from the place of incident. This witness has stated that 6 he saw the accused in the light of electric bulb. When he reached at the house of Gurdeep Singh, he saw Gurdeep Singh lying dead there. This witness has further stated that he saw the three accused running away towards southern side. 14- The above testimony of the witnesses i.e. PW-1 and PW-2 is also corroborated by the medical evidence. The Medical Officer (PW-7) in his evidence has stated that oval injury found on the chest of the deceased could have been caused by country-made pistol. 15- The prosecution case is further corroborated from the statement of PW-6 S.I. Jagan Singh, who investigated the crime. The site plan (Ext.Ka.6) prepared by the investigating officer (PW-6) shows that there was source of light as electric bulb at the place of incident. The investigating officer took the running electric bulb in his possession and prepared its recovery memo as Ext.Ka.4. Thus, the place of incident is also established. 16- Learned Amicus Curiae appearing for the accused/appellant argued that F.I.R. in the present case was lodged after deliberation and consultation and the same is ante time. He has also argued that in the F.I.R. the name of father of PW-3 Santokh Singh is shown to be Maan Singh, while in the General Diary (Ext.Ka.14) name of father of PW-3 Santokh Singh has been shown to be Inder Singh, which creates doubt in the prosecution case. 17- We are unable to accept the argument advanced on behalf of the accused/appellant. In 7 fact, the name of father of PW-3 Santokh Singh is Maan Singh and in the G.D. the name of father of Santokh Singh has wrongly been written as Inder Singh by the investigating officer. No doubt, there is some inconsistency as to name of father of PW-3 Santokh Singh due to mistake of investigating officer, but on that ground only it cannot be said that the F.I.R. is doubtful, as report (Ext.Ka.1) was written by Santokh Singh son of Maan Singh on the dictation of complainant Amar Kaur. The incident was said to have taken place on 16.6.1991 at 1.30 p.m. and report of the incident was lodged on 16.6.1991 itself at 2.45 p.m. at P.S. Jaspur. Chick F.I.R. (Ext.Ka.13) also shows that distance of police station from the place of incident is about 2 kms. Therefore, the F.I.R. lodged by the complainant (PW- 1) appears to be prompt one as the same has been lodged within 1¼ hours of the incident. The promptness in lodging the F.I.R. clearly indicates that there was no chance available with the complainant to make out a cock and bull story. Therefore, we are of the view that the First Information Report lodged in the case on account of its promptness cannot be disbelieved. 18- Learned counsel for the accused/appellant argued that there was no motive of commission of crime on the part of the accused and he has been falsely implicated. On going through the evidence on record, we find that PW-1 Amar Kaur, complainant, has stated that Km. Lad Kaur, sister of accused Kulbinder Singh, had relations with Bachan Singh, nephew of Gurdeep Singh (deceased). Gurdeep Singh made to understand Bachan Singh and also told the accused to make to understand his sister. 8 On this, accused got angry with Gurdeep Singh and told him that he will have to face the consequences for disreputing his sister. On the other hand, accused did not establish any motive which could suggest that he has been falsely implicated due to enmity. It is also to be noted here that enmity is like double-edged weapon which cuts at its both ends. At the same time, where there is eyewitness account of the incident, motive does not play any important role. However, we are of the view that the prosecution has sufficiently shown the reason why the accused was prompted to commit the murder of the deceased. Thus, the motive for the commission of the crime is amply proved. 19- The next argument advanced on behalf of the accused/appellant is that all the witnesses are close relatives, as such their testimony should not be believed as they all are interested witnesses. We do not find any substance in the argument advanced on behalf of the accused/appellant. Had it been a case of crime committed in the presence of other persons, it could have been said that the prosecution has adduced evidence of only interested witnesses, but in the present case the incident has taken place in the house at about 1.30 p.m. in the night, as such, in that circumstance it is only the inmates of the house who had an opportunity to see the incident. As such, we do not find any reason to disbelieve the testimony of the witnesses, namely, PW-1 Amar Kaur and PW-2 Bachan Singh. 20- For the reasons as stated above, we do not find any sufficient reason to interfere with the conviction and sentence, recorded by the trial court against 9 accused/appellant Kulbinder Singh @ Gindi under Section 302 I.P.C. Accordingly, appeal is liable to be dismissed. 21- Accordingly, appeal is dismissed. The impugned judgment and order dated 30.4.1997 is hereby confirmed. Accused/appellant is on bail. His bail bonds are cancelled and sureties discharged. He shall be taken into custody forthwith to serve out the sentence awarded by the trial court. 22- Let the record be transmitted to the trial court for compliance to be reported to this Court within two months. (Nirmal Yadav, J.) (B.C. Kandpal, J.) March 22, 2010 SP