IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 1418/2001 (Old No. 889/1996) 1- Kunwar Pal @ Surajpal 2- Jitendra 3- Surendra 4- Atar Singh @ Atara …. Appellants. Versus State …….. Respondent. Sri S.K. Agarwal, learned Senior Advocate assisted by Sri Manish Arora learned counsel for the appellants. Sri Harish Pujari, learned A.G.A. for the State. Sri H.C. Pathak, learned counsel for the complainant. Hon’ble B.C. Kandpal, J. Hon’ble B.S. Verma, J. [Delivered by Hon’ble B.C. Kandpal,J.] This appeal, under Section 374 Cr.P.C. has been preferred against the judgment and order dated 21-5-1996, passed by Additional Sessions Judge, Roorkee, in Sessions Trial No. 195 of 1991, State Vs. Kunwar Pal and others, convicting the accused persons Kunwar Pal @ Suraj Pal, Jitndra, Surendra and Atar Singh @ Atara for an offence U/S 302/34 and sentencing each of them to undergo Life Imprisonment and also imposing a fine of Rs. 500/- against each of the accused/appellants and in default of payment of fine to undergo R.I. for one year each. 2- The prosecution case, in short, is that on 14- 4-1991 at about 5.30 P.M. Gajendra S/o Ranjit resident of village Mehbad Khurd @ Nagal, P.S. Bhagwanpur, lodged a written report at P.S. Bhagwanpur with the allegations that he has a plot No. 180 in village Mohammadpur Panda and plot 2 belonging to Kunwar Pal and his brother Atara is adjacent to the above plot of the complainant and litigation is going on between the complainant and Kunwar Pal and his brother Atara and there is enmity between the parties. Kunwar Pal and Atara were pressurizing Ranjit, father of the complainant, to withdraw the case instituted against them. The further allegations made in the written complaint is that at the time of incident Suggan and Jai Ram, both residents of the village of the complainant, were cutting wheat in the field of the complainant. Ranjit, father of the complainant also reached in the field at about 11 A.M. Thereafter, Kunwar Pal, Surendra, Jitendra and Atara armed with Lathis and Tabbal came at the field of the complainant and they told if the case is not withdrawn, you will face dire consequences. All these persons also threatened to kill him and assaulted Ranjit Singh with Lathis and Tabbal. The incident was witnessed by Jai Ram and Suggan. Due to the injuries Ranjit Singh became unconscious. Suggan and others informed the complainant about the incident. The complainant got admitted his father Ranjit Singh in Roorkee Hospital where he succumbed to the injuries. 3- On the basis of written report, Ext. Ka.1, check F.I.R., Ext. Ka. 4 was got prepared at P.S. Bhagwanpur and a case U/Ss 323, 324, 506, 307 I.P.C. was registered against the accused persons, in the G.D. report No. 22 at 5-30 P.M. on 14.4.1991 copy of which is Ext. Ka.7. The investigation of the case was handed over to S.I. R.S. Tiwari. He recorded the statements of Suggan, Jai Ram, Chaman Lal, Sumer Singh etc. On 15.4.1991 Ranjit 3 Singh died in the Hospital. The investigation was transferred to Station Officer Ajay Kumar. The Investigating Officer visited the place of occurrence and got prepared site plan Ext. Ka.8. The I.O. also seized the blood-stained and plain earth from the place of occurrence and prepared memo Ext. Ka.9. He also got prepared the inquest report, Ext. Ka.5, of the dead body. Thereafter the dead body was sealed and report Ext. Ka.10, letter to Medical Officer, Ext. Ka.11, for conducting post mortem of the dead body, sketch dead body, Ext. Ka.12 and police form No. 13, Ext. Ka. 13 were also prepared. The Investigating Officer after completion of the investigation submitted charge sheet, Ext. Ka.6 against the accused persons. 4- The deceased Ranjit Singh soon after the incident was brought to JNSM Hospital Roorkee, where he was medically examined by Dr. Jugal Kishore Mittal at about 1.20 P.M. on 14.4.1991 and he has found as many as 28, contusions, abrasions, punctured wounds and incised wounds of various dimensions on the person of Ranjit Singh. The Medical Officer has prepared the injury report Ext. Ka.2. 5- After the death of Ranjit Singh autopsy of his dead body was conducted by Dr. U.P. Sarabhai, Medical Officer, HMG Hospital, Haridwar on 15-4- 1991 at 4.30 P.M. The Medical Officer found the following anti-mortem injuries on the dead body of the deceased- 1- Stitched wound 4cm x 4 stitches on beam of head, 12 cm from left ear. 4 2- Traumatic swelling 10cm x 7cm on beam of right upper arm. 3- Traumatic swelling 22cm x7cm on beam of right fore arm and hand and there was fracture on both bones of right fore arm. 4- Stitched wound 2 cm x 2 stitches on beam of left upper arm 4cm above left elbow. 5- Abraded contusion with traumatic swelling 14cm x 8cm on beam of left elbow on upper arm, and fracture of shaft of humerus. 6- Traumatic swelling 6cm x 4cm on beam of left wrist joint and fracture of ulna lower end. 7- Abraded contusion 4cm x 3cm on lateral part of right side chest, 6cm below right nipple. 8- Contusion 10cm x 8cm on left side of chest, 6cm below the nipple. 9- Contusion 20cm x 10cm on right thigh. 10. Abrasion 2cm x 1cm on right side of right knee joint. 11. Stitched wound 4cm x 4 stitches on front side of right leg. 12. Stitched wound 3cm x 2 stitches on front part left leg. 13. Abraded contusion 10cm x 5cm on lower part of left leg. 14. Abrasion 2cm x1cm on left side of iliac- crest. 15. Contusions of 28cm x18 cm on beam of left side chest and abdomen. On internal examination the Medical Officer found that 4th, 5th, 6th and 7th ribs on right side and 3rd to 8th ribs of left side were fractured. In the opinion of the Medical Officer the cause of death 5 was haemorrhage and shock due to anti-mortem injuries. The Medical Officer prepared autopsy report, Ext. Ka.3. 6- The A.C.J.M. Roorkee, vide his order dated 12- 6-1991, committed the case to the court of Sessions to face trial by accused Kunwar Pal, Jitendra, Surendra and Atara U/Ss 307/ 302 I.P.C. 7- The learned Sessions Judge, on receipt of the case before it, framed charge U/S 302 read with Section 34 I.P.C. against the accused persons. They pleaded not guilty and claimed to be tried. 8- In support of its case the prosecution has examined P.W.1, Gajendra, P.W.2, Suggan, P.W.3, Atma Ram, P.W.4, Chaman Lal, P.W.5, R.D. Garg, P.W.6, Dr. K.P. Sarabhai, P.W.7, Hari Singh, P.W.8, Ajay Kumar, and P.W.9, R.S. Tewari. 9- P.W.1, Gajendra is the complainant of the case. He has lodged the F.I.R. of the incident. This witness has proved the written report Ext. Ka.1. 10- P.W.2, Suggan did not support the prosecution case and he has to be declared hostile. 11- P.W.3. Atma Ram and P.W.4, Chaman Lal are the eyewitnesses of the occurrence and they have fully supported the prosecution version. 12- P.W.5, R.D. Garg has proved the injury report of the deceased. P.W.6 Dr. K.P. Sarabhai has conducted autopsy on the dead body of the 6 deceased. This witness has proved the autopsy report Ext. Ka.3. 13- P.W.7, Hari Singh is the scribe of the written report. He has deposed that he has written the report on the dictation of Gajendra Singh. P.W.8 Ajay Kumar and P.W.9, R.S. Tiwari are the Investigating Officer. They have narrated about the investigation and proved the prosecution papers prepared during the investigation. 14- The accused persons in their statements U/S 313 Cr.P.C. denied the prosecution case and alleged that due to enmity they have been falsely implicated in this case. The accused persons, however, did not adduce any defence evidence. 15- The learned Sessions Judge, after having considered the entire evidence on record and hearing learned counsel for the parties, convicted the accused persons for an offence punishable U/S 302/34 I.P.C. and sentenced each of them to undergo Life Imprisonment and a fine of Rs. 500/- each and in default to undergo R.I. for one year each. 16- Feeling aggrieved by the aforesaid judgment and order, the accused persons have preferred this appeal. 17- We have heard Sri S.K. Agarwal, learned Senior Advocate assisted by Sri Manish Arora, learned counsel for the accused/appellants and Sri Harish Pujari, learned A.G.A. for the State and Sri 7 H.C. Pathak, learned counsel appearing on behalf of the complainant and perused the record. 18- Learned counsel for the accused/appellants firstly submitted that the prosecution has not been able to prove the motive for committing the crime, therefore, the entire prosecution case is not credible. 19- Perusal of evidence on record reveals that although prosecution has tried to develop the case that there was prior enmity between the parties, but in this regard no evidence has been adduced either by the prosecution or by the accused side to show the enmity between the parties prior to the incident. However, it cannot be ruled out that there was an element of bad relations between the parties prior to the incident. It is worthy to mention here that the motive in the case of direct evidence does not play any important role. Here also the motive does not play any important role because the case is to be assessed on the basis of the direct evidence available on record. 20- It is the case in which the incident has taken place during day light. As per the prosecution version the incident has taken place at about 11 A.M. on 14-4-1991 in the field of Ranjit Singh deceased. It is stated that two persons viz. Jai Ram and Suggan were cutting the wheat crop in the field of Ranjit Singh deceased and after hearing the hue and cry of Ranjit Singh, Atma Ram, Chaman Lal and one Makhan also reached at the scene of the occurrence and they saw the accused persons assaulting Ranjit Singh with Tabbal and Lathis. It is 8 not disputed that the witnesses and accused persons are known to each other prior to the incident. As we have already stated that it is a day light incident, therefore, there is no question that the identity of the accused persons is to be doubted in any manner. 21- The defence has tried to submit before the court that the witnesses are alleged to have seen the incident from a distance of more than 150 paces and from such a distance it was not possible to the witnesses to identify the accused persons properly. We fail to appreciate this submission raised by the learned counsel for the accused/appellants. The evidence available on record clearly establishes that the witnesses were at a distance of about 150 paces at the time of occurrence and when they heard the shrieks and hue and cry of Ranjit Singh, they immediately rushed towards the field of Ranjit Singh and saw the accused persons assaulting Ranjit Singh with Tabbal and Lathis. 22- Learned counsel for the appellants has tried to indicate some contradictions in the statements of the witnesses, but we are of the view that these contradictions are not going to disturb the genesis of the prosecution case. In order to appreciate the submission of learned defence counsel we have considered the depositions of prosecution witnesses. 23- P.W.1, Gajendra is the complainant of the case. He is the son of deceased Ranjit Singh. This witness has deposed that on 14.4.1991 at about 11 A.M. Jai Ram and Suggan were cutting wheat crop in his field. His father deceased Ranjit Singh was 9 also there. He is not the eyewitness of actual incident. This witness has deposed that the incident was narrated to him by Suggan. He has further deposed that the incident was witnessed by Makhan, Suggan, Jai Ram, Atma Ram and Chaman Lal. After knowing about the incident this witness reached at the spot and saw that his father Ranjit has fallen on the ground in unconscious state. He got Ranjit Singh admitted in Government Hospital Roorkee and thereafter he got scribed the written report by Hari Singh and lodged it at P.S. Bhagwanpur on the same day at 5-30 P.M. 24- P.W.2, Suggan, P.W.3, Atma Ram and P.W.4, Chaman Lal have been produced as eyewitnesses of the incident but P.W.2, Suggan did not support the prosecution case and he was declared hostile by the prosecution, but the remaining two witnesses P.W.3, Atma Ram and P.W.4, Chaman Lal have fully supported the prosecution version. 25- P.W.3, Atma Ram has deposed that on the day of incident at 11 A.M. he had gone to his field in Mohammadpur Panda in order to cut wheat crop. Chaman Lal of his village was also with him. At the time of incident they were eating breads sitting on tube well. They heard shrieks of Ranjit Singh and on hearing shrieks of Ranjit Singh both of them stood up and saw that all the accused persons, Kunwar Pal, Surendra, Jitendra and Atar Singh were assaulting Ranjit Singh. Kunwar Pal was having pointed tabbal and the other three accused were assaulting Ranjit Singh with Lathis. He has further deposed that incident has taken place in the field of Ranjit Singh, in which wheat was cutting. 10 He has further deposed that when they reached at the spot, the accused persons fled away. He further deposed that Jai Ram and Suggan were cutting wheat in the field of Ranjit Singh and Makhan was also standing there and all of them were requesting the accused persons not to assault Ranjit Singh. This witness has been cross-examined at length but nothing material could be brought out in his evidence which may render his testimony unreliable. 26- The another eyewitness of the occurrence, P.W.4, Chaman Lal has fully corroborated the deposition of P.W.3, Atma Ram. This witness has named all the four accused, who participated in the incident of marpit. This witness has stated that he had gone to the field of Atma Ram to cut wheat crop. When they were eating breads, they heard the shrieks of Ranjit Singh and on hearing the shrieks of Ranjit Singh they stood up and saw that all the accused persons were assaulting Ranjit Singh. Kanwar Pal was armed with pointed Tabbal and the other three accused persons were assaulting Ranjit Singh with Lathis. This witness also deposed that when they reached at the spot the accused persons had fled away. He also supported the prosecution version that witness Suggan, and Jai Ram were cutting the wheat in the filed of Ranjit Singh and Makhan was also standing there and they all were making requests to the accused persons not to assault Ranjit Singh. In the cross-examination of this witness also nothing material could be elicited, which may turn his testimony untrustworthy. 11 27- From a plain reading of the depositions of these two eyewitnesses, it becomes quite clear that their deposition is consistent on each point and both of them have not contradicted on material points. The defence has not shown any reason as to why these witnesses will falsely depose against the accused persons. We find that in all respects the testimony of these witnesses is natural and reliable. 28- As far as the medical evidence is concerned, the injury report of Ranjit Singh as well as the post mortem report indicates that there were several injuries on the persons of deceased Ranjit Singh. 29- The death of Ranjit Singh had taken place on account of cumulative effect of all the injuries sustained by him. The injuries on the person of the deceased are in the nature that the same could be caused by Tabbal and Lathis. In the instant case accused Kunwar Pal is said to have armed with Tabbal while the other accused were armed with Lathis and they all assaulted Ranjit Singh with their respective weapons. The nature of the injuries are such that it could be caused by both the weapons. Therefore, we do not find any material contradictions in the ocular version as well as medical version and we are of the view that the medical version finds full support with the ocular version. 30- The learned counsel for the accused/appellants also submitted that the persons mentioned in the first information report are Suggan and Jai Ram and out of these two persons only one Suggan was produced before the court and 12 he was turned hostile while the other person Jai Ram has not been produced by the prosecution for the reason best known to it. It has also been submitted that Atma Ram P.W.3 and Chaman Lal P.W.4 were subsequently cooked as eyewitnesses in the case in order to give support to prosecution case and as per version of these two alleged eyewitnesses P.W.3 and P.W.4, the prosecution case is not established beyond reasonable doubt. 31- Again we do not find any force in the above submission of learned defence counsel. The first information report is not supposed to be a cyclopedia of the entire facts. In case if some material witness does not find place in the F.I.R. even then the prosecution could produce the witness at the stage of trial. Mere non-mention of the name of an eyewitness does not render the prosecution case fragile and this type of situation is not going to effect either the genesis of the prosecution case or the trial in any manner. The Hon’ble Apex Court in the case of Chittar Lal Vs. State of Rajasthan, reported in (2003) 6 Supreme Court Cases 397, has observed as under- “7. Evidence of the person whose name did not figure in the FIR as witness does not perforce become suspect. There can be no hard-and-fast rule that the names of all witnesses, more particularly eyewitnesses should be indicated in the FIR. As was observed by this Court in Shri Bhagwan v. State of Rajasthan mere non-mention of the name of an eyewitness does not render the prosecution version fragile. The information was not lodged by an eyewitness. Mental condition of a person whose father has lost his life inevitably 13 gets disturbed. Explanation offered by witnesses for non-mention of P.W. 3’s name is plausible. Additionally, it is to be noted that in the present case the statement of P.W.3 was recorded on the same day of incident, immediately after the investigation process was set into motion. Therefore, the plea that P.W.3’s testimony is doubtful lacks substance.” 32- In the instant case the complainant P.W.1, Gajendra is not the eyewitness and he has lodged the F.I.R. on the information of Suggan. Further P.W.9, S.I. R.S. Tiwari has recorded the statements of all material witnesses, viz. Suggan, Jai Ram, Makhan Lal, Atma Ram, Chaman Lal, and Sumer Singh, promptly on the next day of the incident. We find that non-mention of the names of these two eyewitnesses P.W.3, Atma Ram and P.W.4, Chaman Lal in the F.I.R. do not effect the prosecution case in any manner. 33- As we have already observed that these eye witnesses are absolutely trustworthy and they have supported the prosecution case from all the corners, their testimony finds full support with the medical version and their presence at the scene of occurrence also appears to be natural. These witnesses are neither chance witnesses nor it can be said that the witnesses do not know the accused persons prior to the incident. Therefore, the testimony of these two eyewitnesses cannot be doubted in any manner. We do not find any infirmity in the impugned judgment and order passed by the trial court and the same is liable to be maintained. 14 34- For the reasons stated above, the appeal lacks merit and is liable to be dismissed. 35- The appeal is dismissed. The impugned judgment and order is affirmed. 36- The accused/appellants are on bail. Their bail bonds are cancelled and sureties discharged. They be taken into custody forthwith to serve out the sentences awarded against them. 37- Let the record be transmitted to the trial court concerned forthwith for compliance. The compliance report be reported to this court within a month. (B.S. Verma, J.) (B.C. Kandpal, J.) 18-08-2009 ISB 15