IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 179 of 2006 Pappal S/o Mahender @ Malhu R/o Village Nathukhedi, Police Station Manglaur, District Haridwar. ...…………. Appellant (in jail) Versus State of Uttarakhand ...…………. Respondent Mr. S.K. Shandilya, Advocate, present for the appellant. Mr. S.S. Adhikari, A.G.A. with Mr. B.S. Parihar, Brief Holder, present for the State. Coram : Hon’ble Prafulla C. Pant, J. Hon’ble Nirmal Yadav, J. Hon. Prafulla C. Pant, J (oral) This appeal, preferred under Section 374 of the Code of Criminal Procedure, 1973 (for short Cr.P.C.), is directed against the judgment and order dated 6th July 2006, passed by Addl. Sessions Judge / First Fast Track Court, Roorkee, District Haridwar, in Sessions Trial No. 395 of 1999, whereby said court has convicted accused / appellant Pappal under Section 302 and 506 of the Indian Penal Code, 1860 (for short I.P.C.). The convict has been sentenced to imprisonment for life, 2 and directed to pay fine of Rs. 5,000/- under Section 302 of I.P.C. He is further sentenced to rigorous imprisonment for a period of one year under Section 506 of I.P.C. 2) Heard learned counsel for the parties and perused the lower court record. 3) It is a case of DOUBLE MURDER. Prosecution story, in brief, is that in the intervening night of 30th and 31st of May 1999, Madan (first deceased) was sleeping in his tailoring shop in village Nathukhedi, police station Manglaur, District Haridwar. Due to the hot weather doors of the shop were kept open. Prosecution case is that he (Madan) had illicit relations with Shashi, sister of the appellant Pappal. At about 01:15 A.M., on said night, appellant Pappal along with his brother Sushil took their sister Shashi (second deceased) beating her to the shop of Madan. There, Pappal caught Madan, and Sushil fired a shot from a country made pistol at him. After killing Madan, both the brothers started beating their sister Shashi. Accused / appellant Pappal was armed with lathi, and co-accused Sushil was armed with a pistol. Pappal gave blows with lathi on the person of Shashi, and Sushil gave blows with the butt of the pistol. She (Shashi) also died at the spot. Hearing the noise when Shashi was being taken by the accused towards the shop of Madan, in the village, P.W. 1 Dheer Singh and P.W. 2 Jompal, both brothers 3 of deceased Madan, woke up and came out to see as to what is happening. They witnessed the incident. Other villagers had also come to the spot. After getting scribed first information report (Ext. A –1) through Jompal, Dheer Singh gave the report at police station Manglaur. On the basis of said report, at about 05:30 A.M., on 31.05.1999, police registered crime No. 117 of 1999, against accused Sushil and accused / appellant Pappal, in respect of offences punishable under Section 302 and 506 of I.P.C. P.W. 8 Sub Inspector Hari Prakash Vats started investigation. He went to the spot and took the dead bodies in his possession, and prepared inquest reports (Ext. A –10 and Ext. A –10/1), sketch of the dead bodies (Ext. A –12 and Ext. A –16), police form No. 13 (Ext. A –13 and Ext. A –17), sample seals (Ext. A –14 and Ext. A –18), letter to the Chief Medical Officer (Ext. A –11), and the dead bodies were sent for postmortem examination in sealed condition. P.W. 3 Dr. R.R. Verma conducted postmortem examination on the dead bodies, and prepared autopsy reports (Ext. A –6 and Ext. A –7). He found as many as seven ante mortem injuries on the dead body of Shashi, and one firearm ante mortem injury on the dead body of Madan. In both the cases, he found shock and haemorrhage as a result of ante mortem injuries, as the cause of death of the two deceased. Meanwhile, the Investigation Officer interrogated the witnesses, inspected the spot, prepared site plan (Ext. A –22). He took the blood stained soil and 4 simple soil from the spot and sent it for chemical analysis. After arrest of accused Sushil and accused / appellant Papal, on pointing out of accused Sushil, country made pistol, allegedly used in the crime, was recovered along with empty cartridge, which was also sent for chemical analysis. On completion of investigation, the Investigating Officer submitted charge sheet (Ext. A –24) against both the accused Sushil and Pappal, for their trial in respect of offences punishable under Section 302 and 506 of I.P.C. Case of Sushil was separated from that of the accused / appellant Pappal, as he (Sushil) was found juvenile. 4) On the receipt of the charge sheet, Addl. Civil Judge (Senior Division) / Addl. Chief Judicial Magistrate, Roorkee, after giving necessary copies to the accused, as required under Section 207 of Cr.P.C., committed the case to the court of sessions for trial. Meanwhile, the report (Ext. A –25) was received from the Forensic Science Laboratory, Agra. On 13.09.1999, the trial court, after hearing the parties, framed charge of offence punishable under Section 302 read with Section 34, and one punishable under Section 506 of I.P.C., against accused Pappal, who pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1 Dheer Singh (complainant and eyewitness); P.W. 2 Jompal (another eyewitness, who is also witness of recovery of pistol); P.W. 3 Dr. R.R. Verma (who conducted the postmortem examination on the two dead bodies); P.W. 4 Asstt. Sub Inspector Prakash Veer (who prepared the 5 check report (Ext. A –8), on the basis of the FIR lodged by complainant, and made necessary entry in the General Diary); P.W. 5 Constable Mahendra Singh (who stated that he took the dead bodies in sealed condition along with necessary papers for postmortem examination); P.W. 6 Sub Inspector Dinesh Chandra Mishra (who prepared the inquest reports); P.W. 7 Sub Inspector Narayan Singh Verma (who accompanied the Investigating Officer during investigation and witnessed the recovery of country made pistol on pointing out of accused Sushil), and P.W. 8 Sub Inspector Hari Prakash Vats (Investigating Officer). The oral and documentary evidence was put to the accused Pappal under Section 313 of Cr.P.C., in reply to which he alleged the same to be false. He pleaded that he has been falsely implicated due to enmity. However, no evidence in defence was adduced. The trial court, after hearing the parties, found that the prosecution has successfully proved charge of offences punishable under Section 302 and 506 of I.P.C. against the accused. After hearing the parties on sentence, the trial court sentenced the convict Pappal to imprisonment for life, and directed to pay fine of Rs. 5,000/- under Section 302 of I.P.C. The convict was further sentenced to undergo rigorous imprisonment for a period of one year under Section 506 of I.P.C. Aggrieved by said judgment and order dated 06.07.2006, passed by Addl. Sessions Judge / First Fast Track Court, Roorkee, District Haridwar, in Sessions Trial No. 395 of 1999, this 6 appeal is preferred by the convict Pappal before this Court. 5) Before further discussion, we think it just and proper to mention here the ante mortem injuries found on the body of deceased Shashi and Madan. P.W. 3 Dr. R.R. Verma has found following seven injuries, mentioned in the autopsy report (Ext. A –6) on the body of Shashi, at the time of postmortem examination, on 01.06.1999, at 09:00 A.M.: “ i) Lacerated wound 4 cm X 1.5 cm X bone deep on left side of forehead and eyebrow. ii) Contusion 5 cm X 4 cm around the left eye. iii) Contusion 3 cm X 2 cm on the left elbow. iv) Abraded contusion 3 cm X 1 cm on the right elbow. v) Contusion 5 cm X 4 cm on top of left shoulder. vi) Contusion 4 cm X 2 cm on top of right shoulder. vii) Contusion 10 cm X 6 cm on left side of face, including the ear. Temporal bone was found fractured. The Medical Officer opined that the deceased (Shashi) had died due to shock and haemorrhage, as a result of ante mortem injuries. P.W. 3 Dr. R.R. Verma on the very day i.e. 01.06.1999, at 11:15 A.M., conducted postmortem examination also on dead body of Madan (another deceased), and recorded following ante mortem injury in autopsy report (Ext. A –7): 7 Firearm wound of entry measuring 2 cm X 2 cm X chest cavity deep on suprasternal noten. Blackening, tattooing and scorching in an area of 8 cm X 8 cm around the wound.” The Medical Officer has further observed that 27 small pellets were found and recovered from both the chest cavities of the deceased. P.W. 3 Dr. R.R. Verma has opined that Madan too had died of shock and haemorrhage, as a result of ante mortem firearm injury. Regarding both the deaths he has stated that deaths could have been occurred around 01:15 A.M. in the intervening night of 30th and 31st of May 1999. He has further opined that the injuries on the body of Shashi were caused by blunt objects like lathi and butt of the firearm, while the ante mortem injury found on the body of Madan was caused by the firearm. From the medical evidence discussed above, it is clearly established that both Madan and Shashi have died in the intervening night of 30th and 31st of May 1999, homicidal deaths. Now, we have to see as to whether accused / appellant Pappal has committed the murder of either one or both of the deceased. 6) P.W. 1 Dheer Singh, complainant, states that in the intervening night of 30th and 31st of May 1999, at about 01:15 P.M., he heard noise and came out. He saw Shishi being taken by accused / appellant Pappal and Sushil. They were beating her. They took her to the shop 8 of Madan. Shashi was crying. The witness further narrates that his brother Jompal had also come out with torch in his hand. When accused Pappal and his brother reached at the shop of Madan, Pappal caught Madan, and Sushil fired at him. Thereafter, according to this witness Pappal, armed with lathi, and Sushil, armed with country made pistol, gave blows on the person of Shashi with lathi and butt of the pistol. P.W. 1 Dheer Singh further states that in the light of the torch he could see Pappal committing the crime. The witness has further told that he got scribed the report (Ext. A –1), and lodged the same with the police. Lastly, in his examination-in-chief he stated that he witnessed the preparation of the inquest reports (Ext. A –3 and Ext. A –4) of the two dead bodies, prepared by the police. The witness was subjected to a lengthy cross-examination on behalf of the accused / appellant Pappal, but nothing came out from his cross- examination which creates doubt in the testimony of the witness. Rather, he has further explained the facts in the cross-examination stating that the fire was shot from a distance of one feet, which corroborates the blackening, tattooing and scorching found by the Medical Officer, at the time of postmortem examination. He has further stated in his cross-examination that Madan’s wife had died some four years before the incident where after he developed illicit relations with Shashi. 7) P.W. 2 Jompal, another eyewitness, has stated that he is brother of the deceased Madan. He has further 9 narrated the same prosecution story, as stated by P.W. 1 Dheer Singh. The facts stated by P.W. 1 Dheer Singh are fully corroborated from the eye account given by P.W. 2 Jompal. In view of the fact that the oral testimony given by the two eyewitnesses, which is corroborated from the medical evidence, this court finds that there is no scope of disbelieving their testimony. 8) On behalf of the appellant it is argued that P.W. 1 Dheer Singh and P.W. 2 Jompal are brothers of deceased Madan, and there is no independent eyewitness of the incident. No doubt, the two eyewitnesses who have supported the prosecution story are brothers of the deceased Madan, but that by itself is no ground to discard their testimony, as what is relevant to be seen is whether their presence at the spot is natural, or not. The incident has taken place in a village they belong. The motive of commission of crime has been explained by the eyewitnesses. They have further explained that they heard noise and came out of their house, and saw accused Pappal taking his sister Shashi towards the shop of Madan, who was crying. This makes coming to the spot, as their natural conduct. 9) Another argument advanced on behalf of the appellant is that the incident is of night and there was no source of light at the time of the incident. Attention of this court is also drawn to the statement of P.W. 8 Sub Inspector Hari Prakash Vats, Investigating Officer, who 10 has admitted in his cross-examination that he found no evidence that there was no electric light at the time of the incident. Having scrutinized the evidence on record carefully, we found that the statement given by the Investigating Officer that there was no evidence that there was electric light at the spot, does not shake the testimony of the two eyewitnesses. The two eyewitnesses have nowhere stated that there was electric light at the time of incident. What they have stated is that P.W. 2 Jompal came out with torch, and in the light of torch they could see accused Pappal. Not only this, the witnesses have also explained that since it was summer season (and there was no electricity) that is why Madan was sleeping with doors of his shop, open. It has also come in the cross-examination of P.W. 2 Jompal that it was a moonlit night of full moon. In the circumstances, we find that since the accused and the witnesses were known to each other there was no difficulty on the part of the witnesses to identify the accused at the time of the incident, in moon lit night, with torch in their hand. 10) Mr. S.K. Shandilya, learned counsel of the appellant pointed out that co-accused Sushil, whose case was separated from the present appellant, as he was a juvenile, has been acquitted by the Juvenile Justice Board, as in that case P.W. 1 Mamraj had turned hostile, and P.W. 2 Jompal has stated in his cross-examination that he gave statement on being asked by the police. P.W. 1 Dheer Singh appears to have been not examined 11 in the said case by the prosecution. Apart from this, even P.W. 2 Jompal has supported the prosecution case in that case also. Considering the nature of the offence and the circumstances of the case, quality of the eyewitness account given by the witnesses in this case, we concur with the view taken by the trial court that in the present case to the extent that the prosecution has fully proved charge of offences punishable under Section 302 and 506 of I.P.C., as against the accused / appellant Pappal, that he committed murder of his sister Shashi, and threatened Dheer Singh and Jompal of dire consequences. 11) For the reasons as discussed above, this appeal is liable to be dismissed. The same is dismissed. Conviction and sentence of accused / appellant Pappal recorded by the trial court in respect of commission of murder of Shashi and criminal intimidation to Dheer Singh and Jompal, is affirmed. Accused / appellant Pappal is in jail. Registry is directed to send a copy of this judgment to the Superintendent of Jail, where the accused / appellant is serving out the sentence awarded by the trial court. Lower court record be sent back. (Nirmal Yadav, J.) (Prafulla C. Pant, J.) Dt. September 10, 2010. H. Negi