RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL (1) CRIMINAL APPEAL No.1408 of 2001 (Old No.670 of 1996) 1. Jaspal S/o Sher Singh R/o Village Motichur, P.S. & Post Raiwala, District Dehradun 2. Mohan S/o Tej Singh 3. Mangu @ Mahangu S/o Heera Lal, Appellants No.2 and 3 R/o Village Nai Basti Moti Chur, P.S. Raiwala, District Dehradun ………….Appellants Versus The State …….. Respondent Advocates for the Appellants – 1. Sri S.S. Bhandari, Adv. for the appellant no.1 2. Sri Pankaj Purohit, Adv. for the appellant no.2 3. Sri Rajendra Kotiyal, Adv. for the appellant no.3 Advocates for the respondent– Sri Nandan Arya, AGA for the State (2) CRIMINAL APPEAL No.1965 of 2001 (Old No.718 of 1996) Satya Prakash S/o Heera Lal R/o Village Haripur Kalan, P.S. & P.O. Raiwala, District Dehradun ………….Appellant Versus The State …….. Respondent DATED: May 04, 2010 Sri Pankaj Purohit, amicus curiae for the appellant Sri Nandan Arya, learned AGA for the State/respondent Coram: Hon’ble NIRMAL YADAV, J. Hon’ble DHARAM VEER, J. PER HON’BLE DHARAM VEER, J. 2 The above said appeals have arisen out of a common judgment and order and the evidence in all the appeals is one and the same and the incident is also the same, hence both of them are being disposed of by this common judgment and order. 2. These appeals, preferred by the appellants, under Section 374(2) of the Code of Criminal Procedure 1973 (hereinafter to be referred as Cr.P.C.), are directed against the common judgment and order dated 03/04.04.1996 passed by the Additional Sessions Judge/Special Judge (E.C. Act), Dehradun in Sessions Trial No.14 of 1995, State Vs. Jaspal & others, whereby the appellants-accused Jaspal, Mohan, Satya Prakash and Mehngu @ Mangu were convicted for the offence punishable under Section 302 r/w Section 34 of the Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and each of them was sentenced to imprisonment for life with fine of Rs.2,500/- each and in default, the defaulter was directed to undergo six months’ further simple imprisonment. 3. We have heard the learned counsel for the parties and perused the entire material on record. 4. In brief the facts of the case are that an application was moved by PW2 Smt. Rajkali dated 1.11.1994 with the averments that she along with her husband Bhanwar Singh was coming to their home after purchasing grocery items from the market which was kept on a handcart (REHADI). As soon as the complainant and her husband reached at the old 3 railway gate, railway line, Motichur, she asked her neighbourer Govind Tailor (PW3) to send for her son Rajendra and brother in law Kunwar Pal (PW1) from their house. When the son and brother in law of the complainant were at a distance of 15-20 paces from them, at about 6:00 p.m. in the evening, the appellants-accused Jaspal, Mohan, Satya Prakash and Mangu came from behind of the railway quarters and the appellants-accused Jaspal and Mohan Singh caught hold of her husband. The appellant-accused Mohan Singh exhorted the appellant-accused Satya Prakash to give a blow of axe on the neck of complainant’s husband and at this, the appellant-accused Satya Prakash inflicted a blow of axe on the neck of complainant’s husband due to which he fell on the ground and his neck was cut. On her raising alarm, several persons collected over there and the dead body of her husband was lying there. It was further stated that some dispute was going on between her husband and the accused persons over a drain and the accused persons wanted to get their house vacated and due to this enmity, her husband was killed. With the same averments, an FIR Ex.Ka-3 was lodged by PW2 Smt. Rajkali on 1.11.1994 at 7:05 PM at P.S. Raiwala, District Dehradun. On the basis of that FIR (Ex.Ka-3), Head Moharrir Gajendra Singh (PW4) prepared the CHIK FIR, i.e. Ex.Ka-5. In the same process, the entry was also made by him in the G.D., carbon copy thereof is Ex.Ka-6. The investigation of this case was entrusted to PW9 SO Rama Kant Chaturvedi. The inquest report was prepared by PW8 S.I. Ramesh 4 Chand Verma on the same day i.e. 1.11.1994, which is Ex.Ka-4. Along with the inquest report, other necessary documents viz. Police Form No.13 Ex.Ka-13 and sketch of dead body Ex.Ka-14 were also prepared. Thereafter, the dead body of Bhanwar Singh was sent for the post-mortem and the post-mortem was conducted by PW6 Dr. H.K. Fuloria on 2.11.1994 at 3 PM and after conducting the same, the post-mortem report Ex.Ka-7 was prepared. The I.O. during the course of investigation, inspected the place of occurrence and prepared the site plan, i.e. Ex.Ka-8. On 3.11.1994, the I.O. got recovered the axe used in the aforesaid crime on the pointing out of the appellant- accused Satya Prakash from a culvert beneath the stones, for which Fard Ex.Ka-1 was prepared. The bloodstained clothes of the appellant-accused Mohan, worn by him at the time of incident, were also taken into possession by the I.O. for which Fard Ex.Ka-2 was prepared. The I.O. also took in his possession the plain and bloodstained clay from the place of occurrence and prepared Fard Ex.Ka-9. He also took in his possession the handcart (REHADI) of deceased Bhanwar Singh loaded with wheat flour, pulses and sugar and a plastic slipper from the place of occurrence as well as an ATLAS bicycle belonging to the appellant-accused Mohan for which Fards Ex.Ka-10, Ka-11 and Ka-12 respectively were prepared. The appellants-accused Satya Prakash and Jaspal were arrested on 3.11.1994 and entry to this effect was made in G.D., carbon copy thereof is Ex.Ka-15. During the course of investigation, the I.O. inspected the place where the axe was 5 recovered and prepared the site plan, i.e. Ex.Ka-17. During the course of investigation, the I.O. recorded the statements of witnesses and on completing the investigation, he filed the charge sheet against the appellants-accused, i.e. Ex.Ka-18. 5. It is pertinent to mention here that the clay from the place of occurrence, clothes of the appellant- accused Mohan as well as the clothes of deceased Bhanwar Singh were sent for the purpose of conducting the chemical examination. The report given by the Scientific Officer, Scientific Laboratory, Agra is on record which is Ex.Ka-19 and in the said report it was stated that in all the items, blood spots were found, while from item no.2 to 8 i.e. clothes of appellant- accused Mohan and that of deceased Bhanwar Singh, human blood was found and on item no.1 i.e. clay of place of occurrence, disintegrated spots of blood were found. 6. Learned Chief Judicial Magistrate, Dehradun appears to have committed the case to the court of Sessions on 10.01.1995 after giving necessary copies to the appellants/accused as required under Section 207 Cr.P.C. The case was transferred to Additional Sessions Judge by the Sessions Judge for disposal as per law. 7. Learned Additional Sessions Judge, Dehradun has framed the charge against the appellants/accused Jaspal, Mohan, Satya Prakash and Mangu @ Mehangu on 27.3.1995 for the offence punishable under Section 6 302 r/w Section 34 IPC. The charge was read over and explained to appellants/accused, who pleaded not guilty and claimed to be tried. 8. To prove its case, the prosecution has examined P.W.1 Kunwar Singh, eyewitness, PW2 Smt. Rajkali, complainant and eyewitness, PW3 Govind Ram, eyewitness, PW4 H.C. Gajendra Singh, who prepared Chik FIR and made entry in G.D., PW5 Constable Sukhdev Singh, who along with Constable Ravindra Kumar took the dead body for conducting the post- mortem, PW6 Dr. H.K. Fuloria, who conducted the post-mortem, PW7 Govind Singh Bisht, witness of recovery of axe, PW8 S.I. Ramesh Chand Verma, who prepared the inquest report and PW9 S.O. Rama Kant Chaturvedi, I.O. of the case. 9. After that the statements of the appellants/ accused were recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to each of them in question form, who denied the allegations made against each of them and stated that they have been falsely implicated. In oral evidence, they have examined seven witnesses as DW1 Madan Lal Mishri, DW2 Surendra Singh, DW3 Jagat Singh, DW4 Kashi Ram, DW5 Sushil Kumar, DW6 Sher Singh and DW7 Raj Kumar Chaddha. In documentary evidence, they produced Ex.Kha-1, copy of salary register in respect of the appellant-accused Jaspal, Ex.Kha-2 copy of Railway Pass issued in favour of Sher Singh Rana (father of the appellant-accused Jaspal) and Ex.Kha-3 copy of 7 Attendance Register in respect of the appellant-accused Mangoo Ram @ Mehngu. 10. After hearing the learned counsel for the parties and appreciating the entire material available on record, the learned Additional Sessions Judge/ Special Judge (E.C. Act), Dehradun vide judgment and order dated 03/04.04.1996 has convicted and sentenced the appellants/accused as discussed above. Feeling aggrieved by the aforesaid judgment and order, the accused/appellants have preferred the present appeal. 11. Before any further discussion, it is pertinent to mention the ante-mortem injuries recorded in the post-mortem report (Ex.Ka-7) of deceased Bhanwar Singh, whose post-mortem was conducted on 2.11.1994 at 3:00 P.M. by PW6 Dr. H.K. Fuloria, which are as under:- 1. “Incised wound 6 cm x 3 cm x haul deep on left side neck, 6 cm below left ear, oblique in direction, tailing to left. Dried blood present. 2. Incised wound 5 cm x 3 cm x mandible deep on left side neck, 2 cm above injury no.1, oblique in direction tailing to left with friction of mandible, dried blood present. 3. Incised wound 3 cm x 2 cm x bone deep on left side of forehead, dried blood present 4. Incised wound 10 cm x 6 cm x bone deep on backside of neck at the level of base of neck, cutting vertical column and blood vessels. Tailing to downward, transverse in direction, dried blood present. 8 5. Incised wound 6 cm x 4 cm x bone deep on back of neck just below occipital region, oblique in direction, tailing to right, dried blood present. Cause of death is due to shock and hemorrhage as a result of ante-mortem injuries.” 12. To prove the post-mortem report, the prosecution has examined P.W.6 Dr. H.K. Fuloria who has proved the above-said post mortem report Ex.Ka-7 of Bhanwar Singh to be prepared by him, whose post- mortem was conducted on 2.11.1994 at 3:00 P.M. He further stated that in his opinion, cause of death is shock and hemorrhage as a result of ante-mortem injuries which were caused by axe. He also stated that the deceased had died one day before conducting the post-mortem. He also stated that these injuries could possibly be caused on 1.11.1994 at about 6 PM. 13. To further prove its case, the prosecution has examined P.W.1 Kunwar Singh, eyewitness of the case, who stated that deceased Bhanwar Singh was his brother and Smt. Rajkali is his sister in law (BHABHI). He further stated that the land, on which they have constructed the house, was earlier belonged to Kashi Ram and the land did not belong to the accused persons. Before constructing the house, there was a forest over the said land and after cleaning the forest, they constructed the house over that land. His brother was residing over that land prior to him. The appellant- accused Jaspal tried to outrage the modesty of his sister in law. He further stated that the accused persons got also registered a false case against him and his brother and they were sent to jail, however, 9 they were acquitted by the Court. The appellant- accused Jaspal committed Marpit with him for which he had lodged the case against Jaspal and now that case is closed. He further stated that the case is still pending against the appellant-accused Mehngu u/s 107/116 Cr.P.C. The appellants-accused used to quarrel about the drain and the appellants-accused wanted to remove them by quarrelling. He further stated that the incident in question is of 1.11.1994 at about 6 PM, when Govind Tailor informed him that his brother was coming after purchasing the goods and further told him to go on the way along with his nephew to take the articles. After that he along with his brother started moving from the house. As soon as they were about 15-20 paces before the railway gate, he saw that the appellants-accused Jaspal and Mohan were catching hold of his brother Bhanwar Singh. Appellant-accused Mehngu exhorted to cut the neck of Bhanwar Singh on which the appellant- accused Sattu @ Satya Prakash gave a blow on the neck of his brother by axe. His sister in law raised alarm but she was pushed aside by the accused persons. When he and his nephew raised noise, then the accused ran towards them, however some persons of locality came over there due to which the appellants- accused ran towards the forest. The appellants-accused also took the axe from the place of occurrence and threw it on the way. After lodging the report of the incident by his sister in law, the police had come on the spot and till then he remained over there. His brother had died on the spot. After some days of incident, the police had come along with the appellant-accused 10 Sattu. After that they went in a field from where the appellant-accused Sattu got recovered an axe to the I.O. and for recovery thereof, the I.O. prepared a Fard, i.e. Ex.Ka-1 and he also put his thumb impression over that Fard. He also identified that axe in the court which was exhibited as Ex.1. The I.O. also took in his possession the bloodstained clothes of the appellant- accused Mohan viz. a pant and a shirt, both bloodstained, for which Fard of recovery Ex.Ka-2 was also prepared. The shirt was marked as Ex.2 while the Pant was marked as Ex.3. This witness was cross- examined at length by the defence counsel but nothing has come out in his statement which may create any doubt in his statement. The statement of this witness is reliable and believable. 14. P.W.2 Smt. Rajkali, who is the complainant and eyewitness of the case, has stated that her husband’s name was Bhanwar Singh, who, on the date of incident, was carrying the grocery items being kept in a handcart and her husband used to sell the grocery items from his home. On that day at about 6 PM, she was coming along with her husband and as soon as they reached near old railway gate of railway line, Govind Tailor met them. She asked him (Govind) to call for her son Rajendra and brother in law Kunwar Singh to take the grocery items. At that time, four persons, namely, Mohan, Jaspal, Sattu and Mehngu came out and she also saw coming of her brother in law and her son. All the four accused surrounded her husband. The appellants-accused Mohan and Jaspal caught hold of her husband and the appellant-accused 11 Mehngu exhorted to give blow of axe on his neck as a result of which the appellant-accused Sattu @ Satya Prakash gave blows of axe on the neck of her husband due to which her husband fell down. She tried to save her husband but the appellant-accused Jaspal pushed her aside as a result of which she also fell down. When her brother in law and son also tried to save, then the appellants-accused also pounced upon them. On the alarm raised by her, several persons of the vicinity came over there, on seeing whom the appellants- accused ran away towards the forest. The appellant- accused Satya Prakash ran along with the axe which was stained with the blood of her husband. She also identified that axe in the court which is exhibited as Ex.1. She further stated that the appellants-accused had enmity with them due to the land as the appellants-accused wanted to sell the house of their land and the house was constructed after cleaning the forest. However, the appellants-accused had no ownership and possession over their homeland. She further stated that before the incident, the appellant- accused Jaspal entered in her house to outrage her modesty, however for that incident, no case was registered. Rather, the accused persons lodged a case u/s 307 IPC against her husband and brother in law in which they were acquitted. Besides it, a case u/s 107/116 Cr.P.C. was going on between her husband and the accused persons. The appellants-accused also committed Marpit with her husband for which the case was also registered. She got the report of this incident scribed through her son Rajendra and after that she 12 gave the same in the police station on the basis of which the case was registered and the police had also come on the place of incident. This witness was also cross-examined at length by the defence counsel but nothing has come out in her statement which may create any doubt in her statement. The statement of this witness is also reliable, believable and inspires implicit confidence. 15. P.W.3 Govind Ram who has stated that the inquest report of the deceased Bhanwar Singh was prepared before him and other Panchas and he also signed on that report, inquest report is Ex.Ka-4. He further stated that the incident is of 1.11.1994 when Bhanwar Singh called him and asked him to call for his son. After that he went at the house of Bhanwar Singh and sent his son from the house to take the grocery items from his father. This witness was also cross- examined at length by the defence counsel but nothing has come out in his statement which may create any doubt in his statement. The statement of this witness is also reliable and believable. 16. P.W.4 H.C. Gajendra Singh who stated that on 1.11.1994 he prepared Chik FIR of this case i.e. Ex.Ka-5. He also made entry in the G.D., carbon copy whereof is Ex.Ka-6. 17. P.W.5 Constable Sukhdev Singh who stated that on 1.11.1994, he along with Constable Ravindra Kumar took the dead body at Mortuary Dehradun for conducting the post-mortem and till when the dead body remained with them, nobody was allowed to 13 tamper with it. After conduction of the post-mortem, dead body was given to his relatives and the post- mortem report was filed in the police station. 18. P.W.7 Govind Singh Bisht has not supported the prosecution case and was declared hostile. 19. P.W.8 S.I. Ramesh Chandra Verma who stated that on 1.11.1994 he prepared the inquest report of Bhanwar Singh, i.e. Ex.Ka-4. On 3.11.1994, on the basis of information of informant, he along with S.O. Ramakant Chaturvedi arrested three accused persons, namely, Sattu @ Satya Prakash, Jaspal and Mohan Singh. The appellant-accused Sattu got recovered a bloodstained axe inside a drain beneath the stones for which recovery Fard Ex.Ka-1 was prepared. Specimen of seal was also been prepared. The clothes of the appellant-accused Mohan, stained with blood, were also taken into possession for which Fard Ex.Ka-2 along with specimen of seal was prepared. 20. P.W.9 S.I. Ramakant Chaturvedi, I.O. of the case, who stated that he took the investigation of this case on 1.11.1994. On the same day he inspected the place of occurrence and prepared the site plan, i.e. Ex.Ka-8. On his direction, SI R.C. Verma conducted the inquest on the dead body. He also took the bloodstained and plain clay from the place of occurrence for which Fard Ex.Ka-8 was prepared. He also recovered a handcart along with articles kept inside it from the place of occurrence and gave the same in the Supurdgi of son of deceased for which Fard 14 Ex.Ka-10 was prepared. On the same day he also took in his possession a plastic slipper as well an Atlas bicycle from the place of occurrence for which recovery Fards Ex.Ka-11 and Ka-12 respectively were prepared. The father of accused Mohan Singh has identified the said slipper and bicycle belonging to his son. The documents prepared along with the inquest report were also prepared by S.I. R.C. Verma, which are Ex.Ka-13 and Ka-14. On 3.11.1994, the appellants-accused Satya Prakash @ Sattu, Mohan and Jaspal were arrested and the appellant-accused Satya Prakash @ Sattu got recovered the axe used in the crime from a culvert beneath the stones for which Fard of recovery Ex.Ka-1 was prepared. Bloodstained clothes of the accused Mohan Singh was also taken into possession for which Fard Ex.Ka-2 was prepared. He also proved the entry made in G.Ds. vide memos Ex.Ka-15 and Ka- 16. He also prepared the site plan of the place from where the axe was recovered, i.e. Ex.Ka-17. Later on he was transferred and the investigation was transferred to S.I. R.C. Sharma, who filed the charge sheet in this case, i.e. Ex.Ka-18. 21. After that the statements of the appellants/ accused were recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to each of them in question form, who denied the allegations made against each of them and stated that they have been falsely implicated. In documentary evidence, they produced Ex.Kha-1, copy of salary register in respect of the appellant-accused Jaspal, Ex.Kha-2, copy of Railway Pass issued in favour of Sher Singh Rana, 15 father of the appellant-accused Jaspal and Ex.Kha-3 copy of Attendance Register in respect of the appellant- accused Mangoo Ram @ Mehngu. In oral evidence, they have examined as many as seven witnesses. 22. DW1 Madan Lal Mishri has stated that on the date of incident at about 6:45-7 PM when he reached at the railway gate, he saw that son of Smt. Rajkali was weeping by saying that his father has been murdered by someone. Along with the son of Rajkali, 2-3 persons and Tej Singh were present with the dead body. He further stated that those boys, standing over there, asked him to call for Rajkali, who was selling fruits in front of Shanti Kunj, Haridwar. After that he went for Shanti Kunj and made Rajkali sat in a tempo and he came back. At that time, brother in law of Rajkali, namely, Kanwar Singh was also closing his shop in front of Shanti Kunj. Thereafter he came back on the spot. After that on the request of Rajkali, he again took her before the Maharaj of Shanti Kunj however Maharaj was not found there and only the Manager was found, who asked Rajkali to lodge the report. Thereafter he brought Rajkali in his cycle on the spot. After some time, he was informed that the police had come on the spot. 23. D.W.2 Surendra Singh Rawat, Accountant who stated that the appellant-accused Jaspal was employed as a Class IV employee in the office. On 1.11.1994, he paid the salary to Jaspal in between 2:30-3:00 PM and the office timing is from 10 AM to 5 16 PM. He also produced the photocopy of salary distribution register, i.e. Ex.Kha-1. 24. D.W.3 Jagat Singh stated that on 1.11.1994 he saw the appellant-accused Jaspal in between 3-4 PM in the office. 25. D.W.4 Kashi Ram stated that the land at Motichur which was with Bhanwar Singh (deceased), that was given by him to deceased. He also stated that the accused persons did not want to evict Smt. Rajkali from that land, as they have no concern over that land. He further stated that on 1.11.1994 at about 6-6:30 PM, he crossed from the place of occurrence but at that time neither he saw the dead body of Bhanwar Singh nor any incident had occurred by that time. At about 9:30 PM he came back and saw the dead body of Bhanwar Singh. On the basis of statement of Smt. Rajkali, he was also made to sit and the police arrested Yashpal, Mohan, one driver, conductor and other persons and they were brought at the police station where they were locked. On 2.11.1994, the police also brought the accused Sattu @ Satya Prakash at the police station. He was detained since 1.11.1994 till 3.11.1994. 26. DW5 Sushil Kumar who has