IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 820 of 2001 Indra Pal …Appellant Versus State of Uttaranchal (Uttarakhand) ….Respondent Present : Mr. M. S. Pal, Senior Advocate, assisted by Mr. Mukul Dangi and Mr. Vinay Upadhyay, Advocates for the appellant. Mr. Amit Bhatt, Assistant Government Advocate for the State. Mr. S. K. Mandal, Advocate present for legal representatives of the complainant. Coram: Hon’ble Prafulla C. Pant, J. Hon’ble Sudhanshu Dhulia, J. Prafulla C. Pant, J. (Oral) (1) This appeal, preferred under Section 374 of Code of Criminal Procedure, 1973 (for short, Cr.P.C.), is directed against the judgment and order dated 26.5.2001 passed by the Additional Sessions Judge/First Fast Track Court, Haldwani, District Nainital in sessions trial no. 540 of 1995, whereby the said court has convicted accused appellant Indra Pal under Section 302 of Indian Penal Code, 1860 (for short, IPC) and sentenced him imprisonment for life. (2) Heard learned counsel for the parties and perused the lower court record. (3) Prosecution story, in brief, is that deceased Ramvilash Verma (deceased) was in a litigation against appellant Indra Pal and his family members over a piece of land before the 2 revenue authority. On 07.04.1995 at about 9:30 A.M., accused/appellant Indra Pal Singh along with other accused, namely, Chandra Pal, Dharam Veer, Rajesh, Navrang and Ramesh came to the house of the deceased, situated in Village-Sakenia within the limits of Police Station-Gadarpur, District-Udham Singh Nagar (earlier Police Station Gadarpur was part of District-Nainital). The accused were armed with rifle, guns, pistols and swords. They fired shots near the house of Ramvilash Verma (deceased). On this, Ramvilash Verma proceeded to report the incident at the Police Station. At about 10:30 A.M., while Ramvilash Verma was on way to Police Station, the accused/appellant Indra pal Singh armed with Rifle along with his associates stopped him near a culvert about one kilometer from the house of the deceased and fired shot at him. PW1, Samsher Bahadur (son of the deceased), PW3 Mehar Chandra another eye witness, who were following Ramvilash Verma, as some incident had already taken place in his house, witnessed accused/appellant Indra Pal along with his associates committed murder of Ramvilash Verma. After receiving injuries of bullet, Ramvilash Verma died within no time. PW1 Samsher Bahadur went to Police Station, Gadarpur and gave First Information Report (Ext. A1) at about 11.20 AM on the very day (7.4.1995). On the basis of said First Information Report, the police registered the crime No. 125 of 1995, relating to offences punishable under Sections 147, 148, 149 and 302 IPC against accused/appellant Indra Pal and others and Check Report (Ext. A18) was prepared. The investigation was taken up by Station House Officer, Chandra Mohan Singh Rawat (Since died). PW6 Sub-Inspector, Girish Kumar Kotiya on instructions of the Investigating Officer, went immediately to the spot and took dead body of Ramvilash Verma in his possession and prepared Inquest Report (Ext. A2) at about 12:45 PM (Noon). On the same day i.e. on 3 07.04.1995, the dead body was sent in a sealed condition along with Inquest Report and other necessary papers e.g. Sample Seal (Ext. A10), Police for no. 13 (Ext. A12), sketch of the dead body (Ext. A13) for postmortem examination. PW5 Y. S. Rawat conducted Post Mortem Examination on the dead body of Ramvilash Verma on the very day (07.04.1995) at 4:50 PM. He recorded two lacerated wounds as ante mortem injuries and noted blood coming out of mouth and nostrils of the deceased. The Medical Officer opined in the Autopsy Report (Ext. A6), prepared by him, that the deceased had died of shock and haemorrhage on account of ante mortem injuries. Meanwhile the Investigating Officer interrogated the witnesses, inspected the site, and prepared the site plan. During investigation accused/appellant Indra Pal and others were arrested. Recovery of Rifle is said to have been made out from co-accused Chandra Pal (brother of present appellant Indra Pal) against whom the separate offence under section 25 of Arms Act was registered. After completion of investigation, the Investigating Officer submitted charge-sheet (Ext A5) against accused/appellant Indra Pal and five others namely, Chandra Pal, Rajesh, Navrang, Ramesh and Dharam Veer for their trial in respect of offences punishable under Sections 147, 148, 149, 302 and 120B IPC. (4) The Munsif Judicial Magistrate, Rudrapur, 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. On 29.08.1997, the learned Additional Sessions Judge, Nainital, after hearing the parties, framed charge of offences punishable under Sections 120B, 148, 302 read with Section 149 IPC against accused Indra pal, Chandra Pal, Rajesh, Navrang and Dharamveer, in reply to which all of them pleaded not guilty and claimed to be tried. The separate charge was framed as 4 against accused Chandra Pal in respect of offence punishable under Section 25 of Arms Act to which he pleaded not guilty and claimed to be tried. On this, the prosecution got examined PW1 Shamsher Bahadur, (informant, eye-witness and son of the deceased), PW2 Nanhi Devi (widow of deceased and eye- witness of the first part of the incident), PW3 Mehar Chadra (eye-witness of the incident), PW4 Station House Officer, Anant Ram Singh, who took over investigation from Chandra Mohan Singh Rawat and submitted charge-sheet, PW5 Dr. Y. S. Rawat, who conducted post mortem examination on the dead body of the deceased and PW6 Sub-Inspector, Girish Kumar Kotiya, who prepared the Inquest Report. (5) Oral and documentary evidence was put to the accused under Section 313 Cr.P.C., in reply to which, they alleged same to be false and pleaded that they have been implicated falsely in the crime. However, no evidence in defense was adduced. The trial court, after hearing the parties, found that though the prosecution could not prove charge as against the other accused beyond reasonable doubt but found this charge under Section 302 IPC proved against accused Indra pal (appellant). After hearing on sentence, accused/appellant Indra Pal was sentenced to imprisonment for life under Section 302 IPC. Hence this appeal. (6) Before further discussion, we think it just and proper to mention ante mortem injuries found on the body of Ramvilash Verma by PW5 Dr. Y. S. Rawat on 07.04.1995 at 4:50 PM after conducting post mortem examination. The same are being reproduced below from Autopsy Report (Ext. A6). (i) Lacerated wound of size 12cm x 8cm x cavity deep over right supra clavicular region, bone chip present clavicle also 5 fractured, bleeding present from site. Margins of skin are everted. (ii) Lacerated wound 3cm x 3cm x cavity deep present over post axillary line 3/4 intercostal spine region. Skin margins inverted. Blood coming out in gush through wounds. There is no mark around the wound site skin. (iii) Blood coming out from mouth and nostrils.” (7) On internal examination, Medical Officer found that right 1st 2nd 3rd and 4th ribs fractured. 3rd rib of the left side was also found fractured. Pleura ruptured. Larynx was full of blood. Both lungs are badly damaged and ruptured. Pericardium ruptured. Heart badly ruptured. Chambers cannot be recognized. Pharynx full of blood. Dr. Y. S. Rawat opined that deceased had died of shock and haemorrhage on account of ante mortem injuries. In his statement, he told the trial court that the deceased could have suffered injuries on 07.04.1995 at 10:30 AM through some firearm weapon. He further told the court that ante mortem injury no. 1 was wound of exit and ante mortem injury no.2 was wound of entry. From the medical evidence on record we find that it is established on the record that Ramvilash Verma, had died homicidal death. Now we have to examine whether the murder was committed by accused/appellant Indra Pal as suggested by prosecution or not. (8) PW1 Shamsher Bahadur is the informant and the eye- witness of the incident. He is son of the deceased. PW1 Shamsher Bahadur states that on 07.04.1995, he was in his shop in village Sakenia, when he was told by Mehar Chandra 6 PW3 that accused came in his house and fired shots. According to this witness (PW1), on receiving information, he along with one Satnam Das went to his house in the village where his mother (PW2) Nanhi Devi told him that accused/appellant Indra Pal and other accused (Chandra Pal, Rajesh, Navrang and Ramesh) had come there and they fired shots. PW1 Shamsher Bahadur further told that his mother told him that his father had gone to report the incident at Police Station, Gadarpur, and accused along with his associates has also gone in a Jeep towards Gadarpur. PW1 Shamsher Bahadur further narrates that he along with Satnam Das, on Motor Cycle, proceeded towards the side where the deceased and the accused had gone. The witness (PW1) further told that near the culvert he saw accused/appellant Indra Pal firing shot at his father. This witness has also proved the First Information Report (Ext. A1) lodged by him at the Police Station. He was also witness of the Inquest Report, which was prepared by Police after lodging of the report. In the cross-examination PW1 Shamsher Bahadur has stated that it was Inder Pal (accused/appellant) who fired the shot at his father from a Rifle from a distance of 2-3 feet. (9) Statement of PW1 Shamsher Bahadur has been fully corroborated by PW2 Nanhi Devi, widow of the deceased, who has narrated the first part of the incident i.e. what had happened before Ramvilash Verma, left his house, and accused/appellant along with his associates went towards Gadarpur following him. (10) PW3 Mehar Chandra has corroborated the entire prosecution story, as narrated by PW1 Shamsher Bahadur. He has told that after the incident at the house of Ramvilash Verma, he went to Shamsher Bahadur and told him about the incident, and thereafter the witness further states that he 7 went towards Gadarpur where the accused had gone in a Jeep chasing Ramvilash Verma. PW3 Mehar Chandra has further stated in the cross-examination that he saw accused/appellant Indra Pal firing shot at Ramvilash Verma. This witness states that he was at a distance of 200 Meters when the fire was shot. He further disclosed that the culvert near which Ramvilash Verma murdered was about 1 K.M. away from the place of earlier part of incident (where the house of deceased was situated). This witness has also proved preparation of Inquest Report and recovery of the empty cartridge recovered from the place of incident by the Investigating Officer. (11) On behalf of the accused/appellant, it is pointed out that in the First Information Report, no specific role has been assigned to the appellant Indra Pal, and it is improvement in the prosecution story that it was he (Indra pal), who fired the shot from the Rifle. We have went through evidence on record carefully and find that it is clear from the First Information Report that accused/appellant Indra Pal was armed with rifle. It is also mentioned that said accused fired shots and Ramvilash Verma fell down after receiving the injuries from the accused person. It is well settled that First Information Report is not an encyclopedia. Each and every minor detail is not required to be mentioned in the First Information Report. Apart from this, it is required to be kept in mind what would have been the mental condition of the son of the deceased soon after the incident. Considering all this, we do not find any sufficient reason to discard the testimony of PW1 Shamsher Bahadur, an eye-witness of the incident, on the above ground. (12) Shri M.S. Pal, Senior Advocate, submitted that there is no blackening, charring and tattooing around the wound of entry 8 on the dead body of the deceased. As such, the statement of the two eye-witnesses namely PW1 Shamsher Bahadur and PW3 Mehar Chandra that accused/appellant Indra Pal fired shot from a distance of 2 feet shows that they did not see the incident. Blackening, charring and tattooing around wound of entry caused by the firearm not only depends on the fact that from how close distance the fire was shot but it also depends whether that part of the body which received the wound of entry was open (without clothes) or not. Apart from this it also depends whether the firearm used was of a shorter barrel like country made pistol or was one having long barrel (more particularly the weapon like Rifle). HWV COX in the Medical Jurisprudence and Toxicology opines, regarding the rifle weapons, that at intermediate range from two feet up to the effective range of the weapon, the entrance would be small with regular margins, grease ring and abrasion collar. According to the author, there may not be microscopic or chemical detectable residues on the skin and no burning or singeing. Apart from this, the distance of 2 feet is not a measured but guesswork of the witnesses, who saw accused/appellant Indra Pal firing shot from a quite distance. (13) Attention of this Court is also drawn to the Statement of PW1 Shamsher Bahadur, who has stated in the cross- examination that two fires were shot by the accused. In this connection, it is submitted that there is only one wound of entry and only one corresponding wound of exit of the firearm. On this ground, it is contended that the witness has not seen the occurrence. On scrutiny of the entire evidence on record, we are of the view that it cannot be ruled out that one of the two shots might have missed. On the above ground no reasonable doubt can be said to have been created in the prosecution story. 9 (14) For the reasons as discussed above, we do not find force in this appeal, which is liable to be dismissed. The appeal is dismissed. The conviction and sentence recorded by the Additional Sessions Judge/First Fast Track Court Haldwani, District Nainital in sessions trial no. 540 of 1995 as against accused/appellant Indra Pal, relating to offence punishable under Section 302 IPC is affirmed. Lower court record be sent back. (Sudhanshu Dhulia, J) (Prafulla C. Pant, J.) 5.7.2011 Kuldeep