Judgment Reserved IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 1351 of 2001 (Old No. 204 of 1993) Sher Singh S/o Shri Ishwari Singh R/o Village Akhoti Patwari Circle Gyarahgaon Tehsil-Jakholi District Tehri Garhwal. ….....Appellant. Versus State of U.P. .……….Respondent. Shri Lokendra Dobhal, and Shri Rakesh Thapliyal, learned counsel for the appellant. Shri Harish Pujari, learned Additional Government Advocate, 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 02.02.1993, passed by the then learned Sessions Judge, Tehri Garhwal, in Sessions Trial No. 08 of 1990, whereby the accused/appellant- Sher Singh is convicted under Sections 302 and 307 of Indian Penal Code, 1860 (herein after referred as I.P.C.), and sentenced by said court, to imprisonment for life under Section 302 I.P.C. and to undergo rigorous imprisonment for a period of five years under Section 307 I.P.C. He is 2 further directed to pay fine of Rs. 5,000/- on said second count. 2. Heard learned counsel for the parties and perused the lower court record. 3. Prosecution story in brief is that on 06.01.1990, at about 9:30 a.m., complainant Hira Singh (P.W. 1) along with his son Narendra Singh (deceased) and some labourers was getting raised GHERBAAR (boundary) in Domdani, Name Tok adjoining to Village Akhoti, Patti Gyarahgaon, District Tehri Garhwal. Accused/appellant Sher Singh Negi, is resident of said Village Akhoti. There was already civil litigation between complainant Hira Singh and accused Sher Singh for quite some time relating to land over which boundary was getting raised by the complainant. On seeing that the boundary was being raised, accused/appellant Sher Singh came out of his house and started hurling abuses at the labourers. On this, Narendra Singh (deceased) son of the complainant asked Sher Singh not to hurl abuses at labourers and talk to him. Thereafter Sher Singh kept quite for sometime and labourers again started raising the boundary. Complainant Hira Singh (P.W. 1) was supervising the work. Suddenly accused Sher Singh armed with his gun reached at the place where boundary was being raised, and fired a shot at Narendra Singh (deceased), who died at the spot. When Hira Singh (P.W. 1) tried to rescue his son, accused Sher Singh fired another shot at him with intention to kill 3 him (Sher Singh). Hira Singh also suffered injuries and fell down. Sher Singh loaded one more cartridge in his gun and waited for 3-4 minutes. When Narendra Singh (deceased) and Hira Singh (complainant), did not move from the place they had fallen, Sher Singh treated them dead and left them. The labourers Guguru (P.W. 5), Murkhaliya, Chandra Singh and some other labourers saw the incident and they ran away on getting frightened. Other persons of the complainant’s village came at the spot. Complainant Hira Singh after the incident tried to contact Patwari of the area to make report of the incident but he was not available at his place. Thereafter the villagers took Hira Singh for medical treatment to Tehri. Hira Singh (P.W. 1) thereafter got First Information Report (Ext. A-1) scribed through Vijay Dangwal (P.W. 6) on the very day i.e. 06.01.1990, and got it sent through him (Vijay Dangwal) to the police station Tehri at 21:30 hours. The report was registered by Police Station Tehri, as crime No. Nil relating to offences punishable under Sections 307 and 302 I.P.C. against accused Sher Singh at 21:30 hours, where check report (Ext. A-14) was prepared and necessary entry in the general diary was made, a copy of which is Ext. A-7. Since the matter pertained to the revenue police area, crime No. Nil was mentioned in the check report. On the next day i.e. 07.01.1990, Village Pradhan also submitted his report (Ext. A-6) of the incident to Anusuya Prasad, Patwari (P.W. 9), who made necessary entry in the general diary and took up the investigation. He went to the spot and took the dead body of Narendra Singh in his possession, 4 and prepared inquest report (Ext. A-9) and sealed the same on 07.01.1990. (In the interior hills revenue officials are given police powers vide U.P. Government Notification No. 494/VIII-418-16, dated 07.03.1916). The dead body along with necessary papers was sent to Tehri for post mortem examination. Patwari also received copy of the report, lodged by Hira Singh with P.S. Tehri and made entry in the general diary (copy Ext. A-11) to this effect. Patwari, Investigating Officer, also took blood stained soil and simple soil from the spot and prepared memorandum. On 08.01.1990, post mortem examination on dead body of Narendra Singh was conducted by Dr. A.K. Pathak (P.W. 4), who prepared autopsy report (Ext. A-2). He has opined that the cause of death was shock due to gun-shot injury. Dr. J.P. Chamoli (P.W. 7) at the time of admitting complainant Hira Singh (P.W. 1) in the hospital, at 6:20 p.m. on 06.01.1990, recorded fire arm injuries and prepared report, copy of which is Ext. A-4. Hira Singh was referred by doctors at District Hospital, Tehri for further treatment to Dehradun. However, he went for further treatment to Bharat Heavy Electricals Ltd., Haridwar, where his another son was posted. Dr. D.K. Tripathi (P.W. 5) gave him further treatment. On 19.02.1990, the investigation was transferred from revenue police to regular police. The witnesses had already been interrogated by the previous Investigating Officer. Subsequent Investigating Officer M.L. Manish (P.W. 10), sent the gun (Ext. 1) recovered from accused and pellets, recovered during investigation for chemical examination to forensic expert. After completion of the 5 investigation, he submitted charge sheet (Ext. A-13) against accused Sher Singh for his trial in respect of offences punishable under Sections 302 and 307 I.P.C. 4. The Magistrate, on receipt of the charge-sheet after giving necessary copies to the accused, as required under Section 207 Cr.P.C., appears to have committed the case to the Court of Sessions for trial. Learned Sessions Judge, Tehri Garhwal, on 08.08.1990, after hearing the parties, framed charge of offence punishable under Section 302 I.P.C. for commission of murder of Narendra Singh, and one punishable under Section 307 I.P.C. for attempting to commit murder of Hira Singh, against accused Sher Singh, who pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1 Hira Singh, complainant and injured eye-witness, P.W. 2 Kishori, an eye-witness, P.W. 3 Gugru, yet another eye-witness, P.W. 4 Dr. A.K. Pathak, who conducted post mortem examination on dead body of Narendra Singh, P.W. 5 Dr. D.K. Tripathi, who had given medical treatment to Hira Singh at Bharat Heavy Electricals Ltd., P.W. 6 Vijay Dangwal, who scribed the First Information Report and gave it at the police station Tehri, P.W. 7 Dr. J.P. Chamoli, who recorded the injuries on the person of injured Hira Singh, P.W. 8 Ram Ashrey Pandey, Scientist of Forensic Laboratory, P.W. 9 Senior Sub-Inspector M.L. Manish, who completed the investigation and P.W. 11 Head Constable Amir Hasan, who prepared the check report (Ext. A-14) of the First Information Report (Ext. A-1) sent by Hira Singh, at P.S. Tehri on 06.10.1990 6 and made necessary entry in the general diary. The oral and documentary evidence is put to the accused in reply to which he alleged the same to be false and stated that he has been implicated due to long enmity with Hira Singh over the land on which GHERBAAR (boundary) was raised by the complainant Hira Singh. After hearing the parties, the trial court found accused Sher Singh guilty of charge of offence punishable under Section 302 I.P.C. for commission of murder of Narendra Singh and also of the offence punishable under Section 307 I.P.C. for attempting to commit murder of Hira Singh. After hearing on sentence, the convict was sentenced to undergo imprisonment for life under Section 302 I.P.C., and rigorous imprisonment for a period of five years and also directed to pay fine of Rs. 5,000/- under Section 307 I.P.C. Aggrieved by said judgment and order dated 02.02.1993, passed by learned Sessions Judge, Tehri Garhwal, in Sessions Trial No. 08 of 1990, this appeal is filed by the convict/appellant before Allahabad High Court on 04.02.1993. The appeal was admitted by said court on 05.02.1993. The appeal is received by this Court under Section 35 of U.P. Reorganisation Act, 2000, for its disposal. 5. Before further discussions, it is pertinent to mention here, the ante mortem injuries, recorded by Dr. A.K. Pathak (P.W. 4) on 08.01.1990 at the time of post mortem examination (of dead body of deceased Narendra Singh), who prepared autopsy report (Ext. A- 7 2). The ante mortem injuries are being reproduced below:- 1. Punctured wound, right side thoracic region outer side at the level of 8th inter costal space round in shape, measuring 2.5 X 2.5mm. Margins inverted, tattooing not present, clotted blood seen in the wound. 2. Punctured wound right side over loin area at the level of umbilicus, round in shape, measuring 2.5 X 2.5mm, margins inverted, tattooing not present, clotted blood seen in the wound. 3. Contusion left side chest front side over 8th inter costal space measuring 2 X 2.5 mm, dark blue in colour, hard round substance felt below the wound. 4. Contusion left side of abdomen at the level of iliac crest, measuring 2 X 2.5mm in size, dark blue in colour, hard rounded substance felt below the wound. 5. Abrasion over left wrist dorsally situated measuring 3 X 2cm, dark blue in colour. As to the course of pellets, it is observed by the aforesaid Medical Officer Dr. A.K. Pathak (P.W. 4) in his autopsy report (Ext. A-2) that (i) First pellet entered 8 injury No. 1 and pierced skin, subcutaneous fatt, muscles of chest, intercostal muscles, pleura, right lung then left lung, pleura left side muscles intercostals then chest muscles and finally lodged in subcutaneous fatt. (ii) Second pellet entered from injury No. 2 and pierced skin, subcutaneous tissue fatt, abdominal muscles, peritoneum right side then entered in peritoreal cavity and lacerated ascending colon and ileum then pierced peritoneum left side, abdominal muscles, subcutaneous tissue below injury No. 4. Both the pellets were recovered from the body and handed over to the Patwari as endorsed by the Medical Officer. Cause of death according to Dr. A.K. Pathak (P.W. 4), is shock due to gun shot injury. From the above injury, it is clear that Narendra Singh has died homicidal death. Now this Court has to see whether accused Sher Singh has committed murder of Narendra Singh or not. 6. P.W. 1 Hira Singh, the injured eye witness has stated that on 06.01.1990, at about 10:00 a.m. he was getting done GHERBAAR (raising of boundary), in Domdani, through his labourers, which included Kishori (P.W. 2), Guguru (P.W. 3), Murkhaliya, Chandra Singh and Govind Singh. Narendra Singh, son of this witness (Hira Singh) was also helping them. At that point of time accused/appellant Sher Singh came out of his house in his courtyard and started hurling abuses at the labourers and asked them to flee. On this, according to the witness, his son Narendra Singh asked Sher Singh not to hurl abuses at the labourers and whatever he has to say he may talk to him (Narendra 9 Singh). On this, Sher Singh kept quite for some time and labourers again started working. However, after about 10-15 minutes Sher Singh came out and reached at the spot where Narendra Singh and labourers were working. He (Sher Singh) fired a gun shot at Narendra Singh, who after uttering ‘HAI MAA’ (Oh! Mother) fell down. P.W. 1 Hira Singh further states that at that juncture he tried to intervene but Sher Singh fired another shot at him and he (Hira Singh) fell down. Thereafter, according to the witness Sher Singh remained there for 3 to 4 minutes and after assuming that both the injured had died, went inside his house. The witness further states that Sher Singh’s son Umed Singh was also with him and he too returned. Meanwhile, all the labourers fled away. But other villagers got collected. P.W. 1 Hira Singh further states that with the help of the person, who came there, he went to the Patwari outpost Akhoti to report the matter, but he was not found there. Then the villagers took injured Hira Singh to Tehri, for medical treatment, where he was admitted. The witness further states that the Medical Officer of the hospital gave telephonic information to the Station House Officer of P.S. Tehri. The Medical Officer asked Hira Singh to lodge the First Information Report. On this, he (Hira Singh) got scribed First Information Report (Ext. A-1) through Vijay Dangwal (P.W. 6) and got it sent through him (Vijay Dangwal) to the police station. P.W. 1 Hira Singh further states that he was referred from Tehri Hospital to Dehradun for further medical treatment but he went to Bharat Heavy Electricals Ltd. Haridwar, 10 where his another son Pratap Singh used to work and got himself treated. The witness states that he suffered gun shot injury in his abdomen. It is also stated by this witness that he was in litigation with Sher Singh since 1965. 7. Injuries recorded by Dr. J.P. Chamoli (P.W. 7) on 06.01.1990, at 6:20 p.m., copy of which is Ext. A-4, disclosed following injuries found on the person of Hira Singh (P.W. 1):- 1. Fire arm injury on the right side 8th intercostal in the outer axillary line, margins scorched. Advised X-ray of chest PA view. 2. Fire arm injury on the left hypochondium, 3cm below the left costal margins in the lateral axillary line. Advised X-ray abdomen AP view. P.W. 7 Dr. J.P. Chamoli has stated that fire arm injury could have been caused by gun –Ext. 1 (recovered from accused Sher Singh). The above medical report corroborates the testimony of P.W. 1 Hira Singh that he suffered fire arm injury at the time of incident. As such, the statement of P.W. 1 Hira Singh appears to be true account of the incident. 8. P.W. 8 Ram Ashrey Pande, a Scientist from Forensic Laboratory, has stated that SBBL gun No. 58164 (Ext. 1), [recovered from the accused Sher Singh] and the lead pellets (Ext. 2 and Ext. 3) recovered 11 during investigation, were examined and after examination, it was found that Ext. 2 and Ext. 3 were fired from Ext. 1. As such, report (Ext. A-5) received from Forensic Laboratory proved by P.W. 8 Ashrey Pandey further corroborates the fact that Narendra Singh was fired at through the gun (Ext. 1) belonging to accused Sher Singh. 9. Statement of P.W. 1 Hira Singh that Narendra Singh was murdered by accused/appellant Sher Singh, who also himself suffered injuries in the incident, further gets corroborated by the statements of P.W. 2 Kishori and P.W. 3 Guguru. Both these witnesses are eye-witnesses of the incident and have supported the prosecution story, as narrated by P.W. 1 Hira Singh. These two witnesses were among the labourers, who were raising GHERBAAR (boundary) under supervision of Hira Singh and Narendra Singh, as such, their presence at the spot is natural and their testimony is trustworthy. 10. Learned counsel for the appellant Sher Singh argued before us that name of Kishori (P.W. 2) does not find mention in the First Information Report (Ext. A-1), as such, his presence at the spot appears to be doubtful. But we do not see much substance in the argument for the reason that in the First Information Report, it is clearly mentioned that there were other labourers also apart from those whose names are mentioned in the report. The presence of Kishori also gets confirmed from the testimony of P.W. 3 Guguru regarding whose 12 presence no such doubt can be raised as his name figures in the First Information Report (Ext. A-1) lodged by Hira Singh, at police station Tehri. The court should not forget that Hira Singh (complainant) was in an injured condition when he scribed the report to Vijay Dangwal through whom he sent his report to the police station and as such, it is natural that where there were several witnesses some names might have been left out. 11. Shri Lokendra Dobhal, learned counsel for the appellant contended that even if it is believed what the eye-witnesses have stated, the act on the part of accused Sher Singh is nothing but the act done in his self defence. In this connection, it is further submitted on behalf of the appellant that he had every right to protect his property as deceased Narendra Singh and his father Hira Singh (P.W. 1) were encroaching upon the property of the accused. We have carefully examined the evidence on record. There is no evidence to show that the land on which GHERBAAR (boundary) was being raised by Hira Singh (P.W. 1) and his son Narendra Singh, through labourers, was owned by accused Sher Singh. Rather what has come in the evidence of the witnesses is that the land belonged to the Government though the parties were admittedly litigating in respect of said land for years before revenue authorities. Had there been any proof of the record that the accused was owner in possession of the land over which the boundary was being raised, the plea of self defence could have been accepted, but that is not the case here. Apart from this, right of self defence can 13 be exercised only to the extent of restraining aggressing party from causing injury to the person or to the property. In the present case, accused Sher Singh has fired at Narendra Singh and Hira Singh without any sudden provocation. As far as raising of boundary over the land in question is concerned, as mentioned above, it is not established that the land belongs to accused Sher Singh. It is stated by the witnesses of fact that house of the accused was at some 60 yards on one side and house of the complainant was some 100 yards from the place of incident. 12. For the reasons as discussed above, we do not find any merit in this appeal which is liable to be dismissed. The same is dismissed. Impugned judgment and order passed by the trial court regarding conviction and sentence under Section 302 and 307 I.P.C., is affirmed. The convict/appellant Sher Singh is on bail. His bail is cancelled. He is directed to surrender before the court concerned. Registry is directed to send the lower court record back so that the court concerned may make the convict/appellant Sher Singh serve out the remaining part of his sentence. (Dharam Veer, J.) (Prafulla C. Pant, J.) Dt:16.05.2008 Sweta 14 15 16 17 18 19