Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 662 of 2001 (Old No.92/1997) Soban Singh and another …Appellants Versus State …Respondent Mr. Rajendra Kotiyal, Advocate with Mr. Deep Chandra Joshi, Advocate for the appellants Mr. S.S. Adhikari, A.G.A. for the State/respondent Hon’ble B.C. Kandpal, J. Hon’ble Nirmal Yadav, J. (Delivered by Hon’ble B.C. Kandpal, J.) This appeal, preferred under Section 374 Cr.P.C., is directed against the judgment and order dated 16.1.1997 passed by Sessions Judge, Nainital, in Sessions Trial No. 102 of 1993, whereby the learned Sessions Judge convicted the appellants under Section 302/34 I.P.C. and sentenced them to life imprisonment. 2- Prosecution story in brief is that deceased Surendra Singh, nephew of PW-1 Govind Singh (informant), was having love affairs with Km. Radhika, sister of the accused persons Soban Singh and Bhupal Singh, and because of this affairs accused persons were having grudge with the deceased Surendra Singh. On 5.7.1992 when Surendra Singh along with Km. Radhika went towards the jungle, accused Soban Singh and Bhupal Singh armed with Ballam (spear) came over there at about 10 A.M. and attacked Surendra Singh by means of Ballam. On the alarm the 2 informant and other witnesses reached at the place of occurrence. Surendra Singh died on the spot as a result of injuries caused by the accused persons. The written report (Ext.Ka.1) of the incident was lodged at P.S. Kaladhungi by Govind Singh after getting it scribed from Rajendra Prasad. On the basis of the said written report, F.I.R. (Ext.Ka.10) was recorded at P.S. Kaladhungi on 5.7.1992 at 2.00 p.m. and entry in this regard was also made in General Diary vide Ext.Ka.11. The investigation of the case was entrusted to PW-10 Ved Prakash, who along with S.I. Ram Baran proceeded for the spot where inquest report (Ext.Ka.4) and other relevant papers i.e. sample seal (Ext.Ka.5), photo lash (Ext.Ka.6) and Police Form No.13 (Ext.Ka.7) were prepared and the body of deceased duly sealed was sent for post mortem. Bloodstained and simple earth was also collected from the spot vide Ext.Ka.8 and the statement of witnesses was recorded by the investigating officer. The I.O. prepared the site plan (Ext.Ka.12) of the place of occurrence. On 6.7.1992 the autopsy on the body of deceased Surendra Singh was conducted by Dr. P.K. Malik (PW-7). On 2.8.1992, the investigation of the case was handed over to S.I. Sri R.B. Ram (PW-9), who arrested the accused persons on 13.8.1992 and recovered the Ballam, which was used in the commission of crime, on the pointing of accused persons and prepared its recovery memo vide Ext.Ka.2. After the completion of the investigation charge sheet (Ext.Ka.14) was submitted against the accused persons. 3 3- The learned Magistrate on receipt of the charge sheet after giving necessary copies to the accused as required under Section 207 of Cr.P.C., appears to have committed the case to the court of Sessions for trial. The learned Sessions Judge after hearing the parties framed charge of offence punishable under Section 302/34 against accused-appellants. The accused pleaded not guilty and claimed to be tried. 4- The prosecution in order to bring home guilt against the accused persons got examined PW-1 Govind Singh, PW-2 Saruli Devi, PW-3 Kunwar Singh, PW-4 Dungar Singh, PW-5 Chamar Singh, PW-6 Bahadur Singh, PW-7 Dr. P.K. Malik, PW-8 Hira Singh, PW-9 S.I. Ram Baran Singh and PW-10 Ved Prakash. 5- The oral and documentary evidence was put to the accused under Section 313 Cr.P.C., to which they denied and alleged that they have been falsely implicated in the case. However, the accused did not lead any evidence in their defence. 6- The trial court having considered the entire evidence on record and hearing learned counsel for parties convicted the accused-appellants under Section 302/34 I.P.C. and sentenced them for life imprisonment, vide judgment and order dated 16.1.1997. 7- Feeling aggrieved by the aforesaid impugned judgment and order, appellants have preferred the present appeal which has been placed before us for disposal. 4 8- Heard Mr. Rajendra Kotiyal, Advocate with Mr. Deep Chandra Joshi, learned counsel for the appellants, Mr. S.S. Adhikari, learned A.G.A. for the State/respondent and perused the record. 9- Before further discussion, it is pertinent to mention here that post mortem examination on the dead body of the deceased Surendra Singh was conducted on 6.7.1992 by Dr. P.K. Malik (PW-7), who found the following ante mortem injuries on his person: (i) Lacerated wound 2cm x 1cm x bone deep on right forehead, 2 cm from right eyebrow. (ii) Incised wound 4 cm x 1cm x bone deep on frontal part of forehead, on left side, 6cm above the top of nose. (iii) Lacerated wound 5 cm x 1cm x bone deep in the middle of left ear. (iv) Abrasion 2 cm x 1cm on left side of chest, 3 cm below the left clavicle. (v) Abrasion 4cm x 1cm on right side of chest, 1cm below the right clavicle. (vi) Incised wound 5 cm x 1.5 cm x muscle deep on lateral aspect of left thigh, 15 cm above the left knee joint. (vii) Abrasion 1.5 cm x 1cm on left leg, 1cm below the left knee joint. (viii) Abrasion 2.5 cm x 1 cm on right side of chest, 1 cm below the right nipple. (ix) Incised wound 3 cm x 1 cm x muscle 5 deep on right back just lateral to right scapula, 20 cm left to posterior auxiliary line. (x) Incised wound 5 cm x 2.5 cm x cavity deep on right back at the level of thoracic vertebra, 2 cm lateral to midline. (xi) Incised wound 3 cm x 1.5 cm x cavity deep on right back at level of 11th thoracic vertebra, 2.5 cm lateral to midline. (xii) Incised wound 3 cm x 1 cm x cavity deep on left back at level of T3, 4 cm lateral to midline. (xiii) Incised wound 3 cm x 1 cm x cavity deep on left back at level of T4, just lateral to left scapula. (xiv) Incised wound 4 cm x 1 cm x cavity deep at level of T7, 6 cm from midline. (xv) Incised wound 3 cm x 1 cm x muscle deep in anterior auxiliary line at the level of T6. (xvi) Incised wound 4 cm x 1.5 cm in posterior auxiliary line at the level of T8. (xvii) Incised wound 4 cm x 1 cm x cavity deep at the level of L1-2 in posterior auxiliary line. (xviii) Incised wound 4 cm x 1 cm x muscle deep on back of left buttock. 10- The Medical Officer (PW-7), at the end of post mortem examination, opined that cause of death is excessive bleeding due to ante mortem injuries. From the statement of PW-7 Dr. P.K. Malik, read 6 with autopsy report (Ext.Ka.3), it is clear that the prosecution has successfully proved that the deceased has died homicidal death. Now, the question before us is whether accused-appellants, with common intention, committed murder of Surendra Singh or not. 11- PW-1 Govind Singh (informant), who is the eyewitness of the case, has stated in his deposition that his nephew deceased Surendra Singh was having love affairs with Km. Radhika, sister of the accused persons, due to which they were having grudge with Surendra Singh. He has further stated that on 5.7.1992 his nephew Surendra Singh had gone along with Km. Radhika towards the forest where suddenly accused persons, armed with Ballam, also came over there and they started inflicting injuries on Surendra Singh with Ballam. This witness has also stated that on hearing alarm raised by his nephew (Surendra Singh), he along with Kunwar Singh, Thaan Singh, Chamar Singh, Rasuli Devi and other people reached at the spot and on being challenged by them the accused persons fled away from the spot. Surendra Singh was in pool of blood and he had died. This witness has further told that he lodged the written report (Ext.Ka.1) with Police Station Kaladhungi. This witness was cross-examined by the defence at length but nothing has come out in his evidence which may create any doubt in his evidence. 12- The statement of eyewitness Govind Singh (PW-1) gets corroboration from the statement of 7 Saruli Devi (PW-2), who has stated in her deposition that on the day of incident in the morning at 10.30 a.m. when she had gone to the forest to graze the cattle, Surendra and Radhika also came over there. Suddenly accused persons Soban Singh and Bhupal Singh, armed with Ballam, came over there and started inflicting injuries on Surendra Singh with Ballam, due to which he died at the spot itself. She has also stated that after the incident had taken place, Govind Singh, Kunwar Singh and other many people reached at the spot and on being challenged by them accused persons ran away. She has also admitted in her statement that Km. Radhika, sister of accused persons, was in love with deceased Surendra Singh, due to which accused persons were having grudge with Surendra Singh. This witness was also cross-examined by the defence at length but nothing has come out in her evidence which may discredit her testimony. 13- PW-5 Chamar Singh is an independent witness, who has corroborated the prosecution case in the same manner, as stated by PW-1 and PW-2. This witness has stated in his deposition that deceased Surendra Singh was in love affairs with Km. Radhika, due to which accused persons were having grudge with him. He has further stated that about three years ago on the day of incident at 10.00 a.m. he was coming back to his house from Mehrampur and on hearing the shouts when he was near Bhumka jungle, he rushed to the place of the occurrence where he saw accused persons inflicting Ballam injuries on Surendra Singh and on being 8 challenged the accused persons fled away. This witness was also cross-examined by the defence at length but nothing has come out in his evidence which may create any doubt in his evidence. 14- The testimony of above eyewitnesses i.e. PW-1, PW-2 and PW-5 is natural and trustworthy and their presence on the place of incident cannot be doubted. PW-1 Govind Singh is the informant as well as uncle of the deceased. PW-5 is the independent witness and she was not in any way related with the deceased nor was in any way inimical with the accused persons. Therefore, there is no reason with this witness (PW-5) for deposing false evidence against the accused persons. 15- The prosecution case is corroborated not only from the testimony of the eyewitnesses i.e. PW-1, PW-2 and PW-5, but from the medical evidence also. The doctor (PW-7) opined in his report that injuries found on the body of deceased could have been caused on 5.7.1992 at 10.00 A.M. by some sharp edged weapon like knife. He has also stated that death had taken place about a day before the occurrence. This is also the case of the prosecution that accused persons gave blows to the deceased with Ballam, a sharp edged weapon. In this way, the medical evidence fully finds corroboration from the ocular version adduced by the prosecution. 16- In this case, it appears from the record that the incident is alleged to have taken place on 5.7.1992 at about 10.00 a.m. in the morning, while 9 the First Information Report was lodged at Police Station Kaladhungi on the same day at 2.00 p.m. The distance of the Police Station from the place of occurrence appears to be 20 Kms. as per the chick F.I.R. Therefore, the F.I.R. lodged by the informant (PW-1) appears to be prompt one as the same has been lodged within 4 hours of the incident. The promptness in lodging the F.I.R. clearly indicates that there was no chance available with the informant to make out a cock and bull story. 17- Further, there was motive for commission of crime on the part of the accused persons. It is mentioned in the F.I.R. (Ext.Ka.1) that Km. Radhika, sister of the accused persons, was in love with the deceased Surendra Singh. PW-1, PW-2 and PW-5 in their statement have clearly substantiated the allegation in the F.I.R. regarding love affairs between the sister of accused persons and deceased Surendra Singh. The said fact of love affairs was also in the knowledge of the accused persons and therefore they were having grudge with the deceased. This fact prompted the accused persons to have committed the crime of murder of deceased Surendra Singh. Therefore, we are of the view that the prosecution has sufficiently shown the reason why the accused were prompted to commit the murder of the deceased. Thus, the motive for the commission of the crime is amply established. 18- In this case, the occurrence took place in the broad day light at 10.00 a.m. as per the F.I.R. PW-5 Chamar Singh has stated in his deposition that 10 accused persons were known to him and that accused persons belong to his village. In these circumstances, there was no difficulty in identifying the accused persons by this witness. The name of this independent witness (PW-5) finds place in the F.I.R. also. 19- It is also relevant to mention here that in this case weapon of assault i.e. Ballam has been recovered on the pointing of accused persons. PW-9 Ram Baran Ram, investigating officer, has stated in his deposition that after the arrest accused persons admitted their guilt before the police and assured the police to assist them in recovery of the weapon of assault. PW-6 Bahadur Singh, who was also taken by the police with them to the place of recovery, has corroborated the statement of PW-9 S.I. Ram Baran Ram. PW-9 proved recovery memo (Ext.Ka.2) and Ballam (Ext.I). He prepared the site plan of the place of recovery and proved the same vide Ext.Ka.9. This recovery has been proved by PW-6 Bahadur Singh in whose presence the accused persons got recovered the weapon of assault i.e. Ballam. 20- From the evidence on record, it is thus quite clear that accused persons committed offence under Section 302/34 I.P.C. The role assigned to the accused persons Soban Singh and Bhupal Singh is of inflicting Ballam injuries on Surendra Singh with intention to kill him. In this way, common intention of the accused persons for committing murder of the deceased is established and the learned trial 11 court has rightly convicted these accused persons under Section 302/34 I.P.C. 21- 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 accused/appellants Soban Singh and Bhupal Singh under Section 302/34 I.P.C. The appeal lacks merit and is liable to be dismissed. 22- Accordingly, the appeal is dismissed. The impugned judgment and order dated 16.1.1997 is hereby confirmed. Appellants Soban Singh and Bhupal Singh are in jail. They shall remain in jail in order to serve out the sentence. 23- 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.) August 4, 2010 SP