IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. Criminal Jail Appeal No. 34/2005 Mohar Singh ….. Appellant. Vs. State … Respondent. Sri L.K. Tiwari, learned Amicus Curiae for the appellant. Sri S.S. Adhikari, learned A.G.A. for the State. With Criminal Appeal No. 32/2005 Sobha Ram @ Churadee … Appellant. Vs. State ……. Respondent. Sri Anil Dabral, learned cousnel for the appellant. Sri S.S. Adhikari, learned A.G.A. for the State. Coram: Hon’ble B.C. Kandpal, J. Hon’ble Nirmal Yadav, J. [Per: B.C. Kandpal, J.] Both these appeals, arise out against the same judgment and order dated 9-2-2005, passed by Additional Sessions Judge/III F.T.C. Haridwar, rendered in S.T.No. 235/2002, State vs. Mohar Singh and another, U/S 302/34 I.P.C. and S.T.No. 236/2002, State vs. Mohar Singh, U/S 25 Arms Act, hence they are being decided by this common judgment. By the impugned judgment the learned Additional Sessions Judge in S.T.No. 235/2002, has convicted accused Mohar Singh and Sobha Ram @ Churdee U/S 302/34 I.P.C. and sentenced them to undergo life imprisonment and a fine of Rs. 5,000/- each and in default of payment of fine to undergo R.I. for six months and Mohar Singh was further found guilty U/S 25 Arms Act in S.T. No. 236/2002 and was sentenced to undergo 1½ years R.I. and a fine of Rs. 2 1000/-, and in default of payment of fine to undergo two months R.I. However, all the sentences were directed to run concurrently. 2- The prosecution case, in brief, is that, 6-7 days prior to the instant incident Mohar Singh was residing at the house of his brother-in-law Atar Singh in village Laharpur. He along with Sobha Ram came at the house of complainant Babu Ram and demanded T.V. from Tejpal son of Babu Ram for playing C.D. Cassette on it, but Tejpal refused to hand over the T.V. to the accused persons, therefore, both the accused threatened him if he would not hand over T.V. to them, they would not left him capable of seeing the T.V. Due to this enmity, on 23.2.2002 at about 5.00am, both the accused persons entered inside the house of complainant and firstly they removed the quilt of complainant whereupon the complainant woke up. Tejpal son of complainant was sleeping by the side of the complainant and accused Sobha Ram pointing towards him told that he is Tejpal and exhorted Mohar Singh to fire shot at him. At this Mohar Singh fired shot on the chest of Tejpal. Hearing the sound of firing, Vijay Pal, Suman and Jawitri, son, daughter and wife respectively of complainant, who were sleeping in the nearby thatch, also woke up and on raising alarm by them both the accused persons fled away from the scene of occurrence. These persons identified the accused persons in the light of lantern burning in the thatch. Tejpal son of complainant was brought to Haridwar Hospital in injured condition but he succumbed to fire-arm injury before reaching there. The written report, Ext. Ka.1 was lodged by complainant Babu Ram at 7.50a.m. on 23.2.2002 at 3 P.S. Shyampur, on the basis of which chick F.I.R. Ext. Ka.17 was prepared by the police and case crime No. 19/2002, U/S 302 I.P.C. was registered against the accused persons vide G.D. report no.12 at 7.50 a.m. the same day, carbon copy of which is Ext. Ka.18. The police also prepared chick F.I.R. Ex.Ka.15, pertaining to offence U/S 25 Arms Act and registered a case against accused Mohar Singh U/25 Arms Act vide G.D. No. 25 the same day at 7.50 a.m., carbon copy of which is Ext. Ka.16. 3- The investigation of the case was handed over to S.O. Sri B.S. Bhakuni. He visited the place of occurrence and prepared site-plan, Ext. Ka.5. On 23.2.2003 he visited the Government Hospital, Haridwar and conducted the inquest on the dead body of deceased Tejpal and prepared inquest report, Ext. Ka.2. He then prepared sketch dead body, Ext. Ka.6, Police Form No. 13, Ext. Ka.7, sample seal, Ext. Ka.8, letter to C.M.O. Haridwar, Ext. Ka.9 and sent the dead body for post mortem. On 25.2.2002 he arrested the accused persons. Accused Mohar Singh confessed his guilt and on his pointing out the I.O. got recovered the country made pistol, used in the commission of crime, and prepared recovery memo, Ext. Ka.3. He also prepared the site-plan of the place of recovery of country made pistol, Ext. Ka.10. The District Magistrate, Haridwar vide his order dated 20-3-2002, accorded sanction to launch prosecution against the accused Mohar Singh U/S 25 Arms Act. The I.O. after completing investigation in the case submitted charge sheet, Ext. Ka.19, against both the accused Mohar Singh and Sobha Ram @ Churadee. 4 4- The investigation of offence U/S 25 Arms Act, was entrusted to S.I. T.S. Garodia. He recorded the statements of witnesses and on 5.3.2002 on the pointing out of Constable Yogendra Singh prepared site plan of the place of occurrence, Ext. Ka.12. After completing the investigation of the case, he submitted the charge sheet, Ext. Ka.13, against accused Mohar Singh. 5- The autopsy on the dead body of deceased Tejpal was conducted by Dr. S.S. Lal, on 23.2.200, at 3.15p.m. in Canal Dispensary Mayapur, Haridwar and he has found the following ante-mortem injury on his person- Fire-arm entry wound 1cm x1cm on front of right side of chest, 3cm away from right nipple at 10’clock position, margin inverted, chest cavity deep. Blackening and tattooing present 2cm around wound. Direction of wound was right side to left side, rupturing right lung, heart, left lung. On the internal examination the doctor found that brain was pale, right side ribs were fractured, right and left vertebrae ruptured, both chambers were empty and one liter of blood was found in the chest cavity. In the opinion of the doctor the cause of death was shock and haemorrhage due to firearm injury. The duration of injury was about half to one day. The doctor prepared autopsy report, Ext. Ka.14. 6- The C.J.M. Haridwar vide his order dated 7.6.2002, committed both the cases to the court of Sessions for trial. Thereafter the learned Sessions Judge, framed charge U/S 302/34 I.P.C. against both the accused persons in S.T.No. 235/2002 and charge 5 U/S 25 Arms Act against accused Mohar Singh in S.T. No. 236/2002. The accused persons denied the charges and claimed to be tried. 7- The learned Sessions Judge consolidated both the Sessions Trials and S.T. No. 235/2002 was made leading case and all the evidence was recorded in this case. 8- The prosecution in support of its case examined P.W.1, Babu Ram, P.W.2, Vijay Pal, P.W.3, Smt. Jawitri Devi, P.W.4, Bharat Singh, P.W.5, Dr. S.S. Lal, P.W.6, B.S. Bhakuni and P.W.7, T.S. Garodia. 9- The accused in their statement U/S 313 Cr.P.C. denied the prosecution allegations and alleged that they have been falsely implicated. However, no evidence was adduced in defence. 10- The learned Addl. Sessions Judge, after hearing learned counsel for the parties and perusing the entire evidence on record, found both the accused/appellants Mohar Singh and Sobha Ram guilty of offence U/S 302/34 I.P.C. in S.T. No.235/2002, and sentenced both of them to undergo life imprisonment and a fine of Rs. 5,000/- each and in default of payment of fine to further undergo R.I. for six months. Accused Mohar Singh was also found guilty U/S 25 Arms Act in S.T. No. 236/2002 and was sentenced to undergo 1½ years R.I. and a fine of Rs. 1000/-, and in default of payment of fine to further undergo two months R.I. However, all the sentences were directed to run concurrently. 6 11- Feeling aggrieved, the accused/appellant Mohar Singh has preferred the criminal jail appeal and another accused/appellant Sobha Ram @ Chauradee has preferred the criminal appeal. 12- We have heard learned counsel for the parties and perused the record. 13- Learned counsel appearing on behalf of accused/appellants have submitted that the prosecution has failed to establish its case and has presented a fabricated and improper case to falsely implicate the accused. 14- We have gone through the entire evidence on record led by the prosecution and we find no force in the above submission. The prosecution has produced three eyewitnesses of the occurrence. P.W.1, Babu Ram, is the father of the deceased and informant of the case. This witness has deposed that at the time of occurrence at about 5.00a.m. in the morning, he along with Tejpal deceased was sleeping in his thatch. A lantern was burning in the thatch. His daughter Suman, son Vijay Pal and his wife Smt. Jawitri were sleeping in the another nearby thatch. The thatch was open. Mohar Singh and Sobha Ram came there. They removed the clothe from his mouth whereupon he woke up, then Sobha Ram removed the clothe from the mouth of Tejpal and exhorted Mohar Singh to open fire at Tejpal. Upon which Mohar Singh fired shot at Tejpal, which hit him at the chest and when he raised alarm, Vijay Pal, Smt. Jawitri Devi and Suman came there and thereafter both the accused persons fled away from the place of occurrence. This witness further 7 deposed that on raising noise by him, Bharat Singh also came there. They narrated the story to him and thereafter they brought Tejpal to Haridwar Hospital in a truck, where the doctor declared the deceased dead. 15- The another eyewitness of the occurrence is P.W.2 Vijay Pal, who is brother of the deceased. He has fully corroborated the prosecution case. He has deposed that in the night of occurrence his father Babu Ram and his brother deceased Tejpal were sleeping in a thatch, whereas he, his mother Smt. Jawitri Devi and his sister Suman were sleeping in the adjacent thatch. He further deposed that at about 5.00a.m. in the morning they woke up on hearing sound of firing and saw that accused Mohar Singh and Sobha Ram were standing near the cot of his brother Tej Pal, Mohar Singh was holding a country made pistol in his hand. They were moving away from the scene of occurrence after firing shot at his brother Tej Pal. He further deposed that his sister and mother also woke up and they also saw the incident. His father Babu Ram had also seen the incident of firing. When they made noise, the accused persons fled away. Thereafter other village people also arrived at the spot. Fire was done at the chest of Tej Pal. 16- P.W.3, Smt. Jawitri Devi, mother of the deceased, who was sleeping in the thatch along with her son Vijay Pal and daughter Suman, also fully supported the prosecution version. She has specifically deposed that on hearing the sound of firing they had woke up and saw that accused Mohar Singh firing shot from revolver at Tej Pal. Accused Sobha Ram was also with Mohar Singh. 8 17- The learned counsel for the accused/appellants have submitted that the eyewitnesses examined by the prosecution belong to same family and are close relations, hence, their interested testimony cannot be believed, without corroboration by some other independent evidence. 18- We do not find any force in the above submission of learned counsel for the appellants. It is settled principle of law that when the evidence of a close relation of the victim is convincing and reliable, the same cannot be discarded out-rightly for the simple reason of their relationship, and conviction of accused may be recorded on such evidence. As discussed above, P.W.1, Babu Ram, P.W.2, Vijay Pal and P.W.3, Smt. Jawitri Devi, who are father, brother and mother respectively of the deceased, were sleeping in their thatch. Their presence at the place of occurrence cannot be ruled out and they had full opportunity to identify the culprits of the occurrence, which had taken place inside their thatch. No reason has been assigned to these witnesses as to why they would leave the real culprit and depose falsely against the accused/appellants. We, therefore, find the testimony of above witnesses natural and reliable. 19- Learned counsel for the appellants also challenged the genuineness of the recovery of country made pistol at the instance of accused Mohar Singh. He submitted that the discovered country made pistol and the cartridges have not been sent for forensic examination and this lapse on the part of the prosecution adversely affects the discovery of these 9 articles and the same is inadmissible in evidence. In support of his contention learned Amicus Curiae has cited before us the cases of Anter Singh vs. State of Rajasthan, reported in 2004(1) U.D., 298 and Pandurang Kalu Patil and another vs. State of Maharashtra, reported in 2002 Supreme Court Cases (Cri) 371. 20- On the other hand learned A.G.A. has made rival contention and submitted that the incriminating articles were discovered in consequence of information received from accused Mohar Singh and other credible evidence exists on record to establish guilt of the accused, therefore, the discovery of incriminating articles is admissible in admissible. 21- We have considered the rival contentions of parties as well as the rulings cited before us and we are of the view that the rulings cited on behalf of accused Mohar Singh are not applicable in the instant case. It is proved that the country made pistol along with cartridges were discovered on the information supplied by the accused Mohar Singh when he was in police custody and the discovery has been fully deposed by P.W.4, Bharat Singh, who has stated on oath that on 23.2.2002 when shot was fired at Tej Pal he had gone to the house of Babu Ram and Babu Ram had dictated the written report Ext. Ka.1 to him. He further deposed that he has signed the inquest report of the deceased. He further deposed that on 25.2.2002 police had brought accused Mohar Singh in village Laharpur. He met the police and the police had told him accused Mohar Singh is getting recovered the country made pistol used by him in the commission of crime. He 10 further deposed that police had arrived there along with Vinod, accused Mohar Singh, S.O. Saheb and some other police constables. Police carried him to the house of Mohar Singh where the accused Mohar Singh took out a country made pistol, along with two live cartridges and an empty cartridge hanged on the pistol, wrapped in a polythene and kept in a thatch. He has further deposed that the I.O. had prepared the recovery memo and he had signed the recovery memo Ext. Ka.3. This witness also proved the above articles before court when he was shown these articles to him. The recovery of above incriminating articles is also proved by P.W.6, B.S. Bhakuni I.O. of the case. 22- So far as this aspect of the matter is concerned that the recovered arm and ammunition was not sent for forensic examination, in our opinion, the same does not affect the veracity of prosecution case, in the light of credible and reliable eyewitness account. The firearm injury on the person of the deceased is further corroborated by medical evidence. P.W.5, Dr. S.S. Lal, who performed autopsy on the dead body of the deceased, has found fire-arm entry wound on the right side of chest of the deceased. Tattooing and blackening was present in 2cm around the wound. According to the prosecution witnesses the accused persons were standing near the cot of deceased and accused Mohar Singh fired at Tejpal deceased from a close range, and that is the reason that the doctor detected tattooing and blackening around the wound. The Medical Officer also found that right lung, heart and left lung were ruptured. He also recovered 45 metallic pellets, 4 weds from left lung, heart, and chest cavity. The doctor found only one 11 firearm injury on the person of the deceased and in his opinion the injury could be caused within 12 to 24 hours. The doctor opined that the death of the deceased was caused due to shock and haemorrhage as a result of firearm injury. Therefore, we find that the medical version fully corroborates the ocular version. 23- Learned defence counsel also submitted that prosecution has not been able to prove the source of light at the scene of occurrence. The I.O. has not taken into possession the lantern, which according to prosecution, was burning inside the thatch. He therefore, submitted that in the month of February at about 5.00a.m. it remains quite dark and it was not possible for the prosecution witnesses to identify the culprits. 24- This argument also bears no force. The eyewitnesses, P.W.1, Babu Ram, P.W.2, Vijay Pal and P.W.3, Smt. Jawitri Devi have deposed on oath that a lantern was burning inside the thatch and in the light of that lantern they had seen the accused persons firing at Tejpal deceased. The above part of statement of these witnesses find support from the site-plan, Ext. Ka.5, which was prepared by the I.O. soon after the occurrence. In the site-plan the I.O. has shown the place where the lantern was burning inside the thatch with letter ‘L’. It has come in evidence that from 6-7 days prior to the occurrence accused Mohar Singh was residing at the house of his sister’s husband Atar Singh. Accused Sobha Ram is son of Atar Singh. These two accused persons had come at the house of complainant and threatened his son Tejpal on the subject of refusing to give his T.V. to the accused 12 persons. The accused persons were very well known to the witnesses prior to the occurrence, therefore, the witnesses were fully capable of identifying them at the time of occurrence in the light of lantern. 25- Learned defence counsel also argued that the motive put-forth by the prosecution for commission of crime is very weak and the accused would not have killed the deceased on the simple ground of refusal to give his T.V. to the accused persons for playing cassette on it. 26- Aforesaid submission is also baseless. It is settled principle of law that where credible evidence exists on record to establish the guilt of the accused, it is not necessary to find out the motive of the crime. However, we find that the prosecution has been successful in establishing the motive with the accused persons to commit the murder of the deceased in the instant case. The prosecution witnesses have deposed that prior to incident, both the accused persons had come at the house of complainant and they had demanded T.V. from deceased Tej Pal for playing a C.D. cassette on it, but the deceased had refused to hand over his T.V. to the accused persons. The accused persons were angry and they gave threat to the deceased that they would not leave him alive to see the T.V. It appears that on the point of refusing to hand over T.V. to the accused persons by the deceased, the accused persons felt insulted and they made up their mind to take revenge from the deceased by eliminating him. 13 27- Learned counsel appearing on behalf of accused Sobha Ram also submitted that the role assigned to accused Sobha Ram is of exhortation, he has not shared his common intention in committing the murder of the deceased, hence, he cannot be held guilty of offence of murder. In support of his contention learned counsel has cited before us the case of Ajay Sharma vs. State of Rajasthan, reported in ACC 1998 (37), page 635. 28- Again we do not find any substance in the above submission. We have also gone through the above cited ruling and find that the facts of the cited case are different to the facts of case in hand and the same do not apply here. As discussed above, both the accused persons had visited to the house of complainant before the occurrence and when the deceased refused to fulfil their request of supplying his T.V. to them then both had threatened to eliminate him. At the time of firing shot on the deceased both the accused persons had come to the thatch where the deceased and his father were sleeping. Accused Sobha Ram removed the cloth from the mouth of the deceased and told his companion, he is Tejpal and he exhorted Mohar Singh to kill Tejpal by firing firearm shot, and then on his exhortation, accused Mohar Singh fired shot from his pistol at the chest of the deceased. In the aforesaid circumstances it is quite clear that accused Sobha Ram had shared his common intention with accused Mohar Singh in the commission of murder of deceased Tej Pal and the learned trial court has rightly held him guilty of offence U/S 302/34 I.P.C. 14 29- The another important aspect which supports the truthfulness of the prosecution case is promptness of the F.I.R. The incident is said to have taken place on 23.2.2002 at about 5.00 a.m. and the written F.I.R. Ext. Ka.1 has been lodged at the Police Station at 7.50 a.m. the same day. The distance of police station from the place of occurrence is shown 15 kilometers. It has also come in the evidence that after sustaining firearm injury by the deceased at the hands of accused persons, the complainant along with other village people firstly brought him to Hospital at Haridwar in a truck where he was declared dead and thereafter he got scribed the F.I.R. by P.W.5, Bharat Singh and handed it over at the police station. Therefore, we find that the F.I.R. has been lodged without any unreasonable delay, which rules out the possibility of false implication and fabrication. 30- Therefore, in view of above discussion, we are of the considered view that the prosecution has been successful in establishing the guilt of both the accused/appellants Mohar Singh and Sobha Ram U/S 302/34 I.P.C. and further the guilt of accused Mohar Singh U/S 25 of Arms Act. We do not find any ground to interfere with the finding recorded by the learned trial court. Therefore, both the appeals lack merit and are liable to be dismissed. 31- Both the appeals are dismissed. The conviction and sentence passed by the learned trial court against the accused Mohar Singh and Sobha Ram U/S 302/34 I.P.C. and the conviction and sentence passed against accused/appellant Mohar Singh U/S 25 Arms Act are upheld. 15 32- Accused/appellant Mohar Singh is already in jail. He shall be detained in prison to serve out the sentence awarded against him. 33- The accused/appellant Sobha Ram @ Churadee is on bail. His bail bonds are cancelled and sureties discharged. He shall be taken into custody forthwith in order to serve out the sentence passed against him by the learned trial court. 34- Let a copy of this judgment be placed on the file of Criminal Appeal No.32/2005. 35- Office is directed to return the record to the trial court concerned forthwith for early compliance of the order. (Nirmal Yadav, J.) (B.C. Kandpal, J.) Dated: July 14, 2010 ISB