IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 1752 of 2001 (Old No. 22 of 1994) Hari Singh S/o Ram Singh R/o Village Chorkhal Patti Khatsyun, District Pauri Garhwal. ….....Appellant. Versus State of U.P. .……….Respondent. Shri U.P.S. Negi and Shri L.K. Tiwari, learned counsel for the appellant. Shri M.A. Khan, learned Brief Holder for the State. Coram:Hon’ble Prafulla C. Pant, J. Hon’ble Dharam Veer, J. Per:-Hon’ble Prafulla C. Pant, J. This appeal, preferred under Section 374 of Code of Criminal Procedure, 1973 (herein after referred as Cr.P.C.), is directed against the judgment and order dated 08.12.1993, passed by learned Sessions Judge, Pauri Garhwal, in Sessions Trial No. 21 of 1992, whereby accused/appellant Hari Singh, has been convicted under Section 302 of Indian Penal Code, 1860 (herein after referred as I.P.C.), and sentenced to imprisonment for life. 2. Heard learned counsel for the parties and perused the lower court record. 2 3. Prosecution story in brief is that accused/appellant Hari Singh is resident of Village Chorkhal, Patti Khatsyun, District Pauri Garhwal. P.W. 1 Jai Singh, complainant also belongs to the Village Kola of same Patti of the District. Sometime before the incident, Jai Singh (P.W. 1) had given loan of Rs. 200/- to the accused/appellant Hari Singh. On 21.03.1992, he sent his son Narendra Singh (P.W. 3) for recovery of loan from the accused/appellant. At about 5:30 p.m., when Narendra Singh (P.W. 3) demanded money back from accused Hari Singh, quarrel between the two started. On hearing shouts, Laxman Singh (P.W. 4) and Matbar Singh (P.W. 5) along with Birendra Singh (deceased) also reached at the spot. Birendra Singh is brother of Narendra Singh. Even after the arrival of the three, quarrel did not end. Finally, Hari Singh went inside his house and came out with a knife and stabbed Birendra Singh, who fell down and succumbed to the injuries. Witnesses, Narendra Singh (P.W. 3), Laxman Singh (P.W. 4) and Matbar Singh (P.W. 5) surrounded the accused and snatched knife from him. However, he succeeded in escaping from the scene after pushing the witnesses. The incident was reported to Village Pradhan and on next day i.e. 22.03.1992. Jai Singh (P.W. 1) father of the deceased got scribed First Information Report (Ext. A-1) through Bachan Singh (P.W. 2) and gave it to the Patti Patwari Kafolsyun, who issued the check report (Ext. A-3) and registered the crime No. 01 of 3 1992 (In the interior hills revenue officials are given police powers vide U.P. Government Notification No. 494/VIII-418-16, dated 07.03.1916). Dinesh Prakash (P.W. 7) Patti Patwari, started investigation. He came to the village, took the dead body of Birendra Singh in his possession and prepared inquest report (Ext. A-5), sketch of the dead body (Ext. A-6), police form No. 13 (Ext. A-7) and letter to Chief Medical Officer (Ext. A-8), requesting for post mortem examination. The dead body was sent in a sealed condition for post mortem examination. Dr. A.K. Rastogi (P.W. 6) conducted the post mortem examination on 23.03.1997 at 3:20 p.m. and prepared autopsy report (Ext. A-2). He recorded the ante mortem injuries and found that the cause of death is shock and haemorrhage due to ante mortem injury No. 1, caused by sharp cutting edge of weapon. The Investigating Officer during investigation prepared site plan (Ext. A-9). After Dinesh Prakash (P.W. 7) left for training, the further investigation was taken up by Dhani Ram Pokhriyal (P.W. 8) of Patti Patwari Kafolsyun, who after interrogating the witnesses and completing the investigation, submitted charge sheet (Ext. A-13) against accused Hari Singh. 4. The Magistrate on receipt of the charge sheet appears to have committed the case to the court of sessions for trial after giving necessary copies, as required under Section 207 Cr.PC. Learned Sessions Judge, Pauri Garhwal, after hearing the parties on 4 17.07.1992, framed charge of offence punishable under Section 302 I.P.C. against accused Hari Singh, who pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1 Jai Singh (complainant), P.W. 2 Bachan Singh (scribe of the report), P.W. 3 Narendra Singh (eye-witness), P.W. 4 Laxman Singh (another eye-witness), P.W. 5 Matbar Singh (third eye-witness), P.W. 6 Dr. A.K. Rastogi (who conducted post mortem examination on dead body of Birendra Singh), P.W. 7 Dinesh Prakash (Patti Patwari who started investigation), and P.W. 8 Dhani Ram Pokhriyal (who concluded the investigation). The oral and documentary evidence was put to the accused on 09.07.1993 in reply to which he alleged that he has falsely been implicated due to enmity. He alleged that the evidence adduced against him is false. At the end of his replies, he further stated that Matbar Singh, Narendra Singh, Laxman Singh and Birendra Singh were in a drunken condition and they were hurling abuses. He further states that he ran away from the spot as the aforesaid persons came to assault him. In defence, D.W. 1 Alok Singh (Jailor, District jail), who stated that accused was admitted in an injured condition in jail, D.W. 2 Dr. A.K. Rastogi (who has proved injury report- Ext. B-9 of the accused) and D.W. 3 Dr. N.P. Singh (who proved injury report –Ext. B-10 of Kesari Devi, wife of Hari Singh), were got examined. After hearing the parties, the trial court found accused Hari Singh guilty of charge of offence punishable under Section 302 I.P.C. 5 and after hearing them on sentence, sentenced the convict to imprisonment for life. Hence this appeal was filed by the convict Hari Singh (appellant) before Allahabad High Court on 23.12.1993, where it was admitted on 05.01.1994. The appeal is received by this Court under Section 35 of U.P. Reorganisation Act, 2000 (Central Act 29 of 2000), for its disposal. 5. Before further discussions, we think it just and proper to mention the ante mortem injuries recorded by P.W. 6 Dr. A.K. Rastogi in the autopsy report (Ext. A-2) at the time of post mortem examination, which read as under:- 1. Incised penetrating wound on right side of chest of size 3.5cm X 2cm X 11cm at the level of 6th right inter costal space, 3cm below right nipple, 6.5 cm away from mid sternal line present. Margin of wound is smooth, clean cut and inverted. Skin surrounding the wound is contused. Shape of wound is wedge shape. On opening the chest wound was going medially, upwards and posterior via right pleura cutting lower lobe of right lung and piercing right ventricle of heart. Right pleural cavity is filled with 6 0.5 litre fluid blood. Superior vena cava was also cut obliquely. 2. Multiple abrasion in an area of 15cm X 5cm, present on left leg. The Medical Officer has recorded in the autopsy report (Ext. A-2) that the dead body was two days old. In the opinion of the doctor, the cause of death was shock and haemorrhage due to ante mortem injury No. 1, as a result of sharp cutting edged weapon. The aforesaid ante mortem injury clearly establishes on record that Birendra Singh has died homicidal death. Now, the question before us is whether accused/appellant Hari Singh committed murder of Birendra Singh or not. 6. There are three eye-witnesses of the incident produced by the prosecution. P.W. 3 Narendra Singh, brother of the deceased, has stated that his father had given loan of Rs. 200/- to the accused. According to the witness, on 21.03.1992, he went to the house of the accused Hira Singh to get back the money. For some 15-20 minutes, there had been altercation between the witness P.W. 3 Narendra Singh and accused Hari Singh, whereafter Laxman Singh (P.W. 4), Matbar Singh (P.W. 5), Birendra Singh (deceased) and one Bhagat Singh reached there. Birendra Singh asked not to fight. Meanwhile, accused/appellant Hari Singh went inside the house and came out with a knife 7 and stabbed Birendra Singh. Consequently, he (Birendra Singh) fell down and died. P.W. 3 Narendra Singh further states that on this, he along with the other witnesses caught hold of Hari Singh and snatched knife. However, the accused after pushing the witnesses succeeded in escaping. The witness has further stated that Matbar Singh (P.W. 5) was immediately sent to the father of deceased, to inform him about the incident. 7. P.W. 4 Laxman Singh and P.W. 5 Matbar Singh, the other two eye-witnesses have corroborated the prosecution story, narrated by P.W. 3 Narendra Singh. They have not only stated that the accused Hari Singh after entering in his house, came out with a knife and stabbed Birendra Singh but also told that witnesses apprehended the accused, snatched the knife, however accused succeeded in fleeing from the place of incident. P.W. 1 Jai Singh, father of the deceased has corroborated the fact that the accused had taken loan of Rs. 200/- from him. He has further corroborated the prosecution story also relating to the fact that on 21.03.1992, he sent Narendra Singh, to recover the loan from accused Hari Singh. This witness has further stated that his another son Birendra Singh (deceased) was also in the house and about 6:00 p.m. went to the house of Hari Singh. P.W. 1 Jai Singh, further states that he lodged the First Information Report with the Patwari of the area. P.W. 2 Bachi Singh, scribe of the report, who is also Village 8 Pradhan, has proved the First Information Report (Ext. A-1). 8. On behalf of the accused/appellant, it is argued that the First Information Report is delayed by one day and there is every possibility of falsely implicating the accused in the crime. No doubt, the incident had taken place on 21.03.1992, and the report was lodged on 22.03.1992, after some 21 hours but there is sufficient explanation on the record for delay in lodging the First Information Report. P.W. 7 Dinesh Prakash, the then Patti Patwari of Kafolsyun, has stated at the end of his examination that on 21.03.1992, he was not in his house and he came back only on 22.03.1992, as such, the delay in lodging the First Information Report on the part of complainant gets explained at the end of the cross examination of P.W. 7 Dinesh Prakash. 9. Secondly, it is argued on behalf of the accused/appellant by their learned counsel that the eye-witnesses should have taken Birendra Singh immediately for medical assistance and the conduct on their part for not taking him to hospital is unnatural conduct, which creates doubt in the prosecution story. However, after going through the evidence on record, we do not find anything unnatural in the conduct of the witnesses for the reason that Birendra Singh is said to have died on the spot and there was no reason for the witnesses to take him to the hospital at that stage. 9 10. Thirdly, it is submitted on behalf of the accused/appellant that though the motive of commission of crime is not required to be proved but where the same is alleged, the prosecution must have proved it. We cannot ignore the fact that it is a case where there are as many as three eye-witnesses of day light incident and even if the motive alleged is not proved, otherwise also the prosecution story is proved on the record by the prosecution witnesses. Apart from this, it is wrong to say that prosecution has not proved the motive, as P.W. 1 Jai Singh, father of the deceased has stated on oath that before the incident, accused/appellant has taken loan of Rs. 200/- from him. And he had asked his son to go and recover the loan. And P.W. 3 Narendra Singh has stated that when he demanded the money from Hari Singh quarrel started with him. 11. Fourthly, it is contended on behalf of the accused/appellant that since according to the prosecution story, the quarrel had taken place between Narendra Singh and the accused, as such, there is no occasion to kill Birendra Singh on the part of the accused. It is further contended that even otherwise as there is a single blow, the conviction should not have been recorded under Section 302 I.P.C. Having re- examined the prosecution evidence on record, we are unable to agree with the learned counsel for the appellant for the reason that according to the 10 witnesses, accused/appellant Hari Singh had gone inside his house and came out with a knife, gave a blow on the vital part of the deceased. The statement of P.W. 6 Dr. A.K. Rastogi, shows that the injury No. 1 was 11 cm deep to the heart cavity. As such, though there is a single blow, but it cannot be said that there was no intention to commit murder of the deceased. 12. Fifthly, it is pointed out on behalf of the accused/appellant that the Investigating Officer has interrogated the witnesses and the statement of such witnesses cannot rule out the possibility of falsely implicating the accused. We do not find any sufficient reason to disbelieve the prosecution story only on that score particularly for the reason that P.W. 7 Dinesh Prakash, the Investigating Officer, who started the investigation, has stated at the end of his examination in chief, that he had to go P.T.C. (Police Training College), Moradabad, for training. Thereafter, P.W. 8 Dhani Ram Pokhariyal, was entrusted the investigation and there is sufficient evidence on record explaining the delay in interrogating the witnesses. 13. Lastly, our attention is drawn to the fact that in the inquest report (Ext. A-5), though it is shown that the same was prepared on 22.03.1992, it is mentioned in it that on 23.03.1992, the dead body was being sent for post mortem examination. Undoubtedly, the said discrepancy is there on the record but merely for that reason, we cannot doubt the otherwise natural and 11 trustworthy ocular testimony of the eye-witnesses that accused Hari Singh committed murder of Birendra Singh on 21.03.1992, at 6:30 p.m. 14. For the reasons, as discussed above, we are of the view that there is no force in the appeal and it is liable to be dismissed. The appeal is dismissed. The appellant Hari Singh is on bail. His bail is cancelled. Lower court record be sent back to the trial court so that accused/appellant Hari Singh may be made to serve out the sentence, awarded to him by the trial court. (Dharam Veer, J.) (Prafulla C. Pant, J.) Dt: 01.09.2008 Sweta 12 13 14 15 16 17