IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 459 of 2001 (Old No. 2237 of 1993) Kishan Singh Uprari S/o Shri Kalyan Singh Resident of Khatigaon, P.S. Pithoragarh, Distt. Pithoragarh. ...…………. Appellant Versus The State ...…………. Respondent Mr. Lokendra Dobhal, Advocate for the appellant. Mr. M.A. Khan, Brief Holder for the respondent-State. Coram : Hon’ble Prafulla C. Pant, J. Hon’ble Dharam Veer, J. Prafulla C. Pant, J (Oral) This appeal, preferred under Section 374 of the Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), is directed against the judgment and order dated 10th of December 1993, passed by learned Sessions Judge, Pithoragarh, in Sessions trial No. 46 of 1991, whereby accused / appellant Kishan Singh Uprari has been convicted under Section 302 of the Indian Penal Code, 1860 (hereinafter referred as I.P.C.) and sentenced to undergo imprisonment for life. 2 2) Heard learned counsel for the parties and perused the lower court record. 3) Prosecution story, in brief, is that accused / appellant Kishan Singh Uprari had enmity with father of the deceased. Sometime before the incident had taken place one Madho Singh initiated a case against accused / appellant Kishan Singh Uprari (S/o Kalyan Singh), resident of Village Khatigaon, Patti Chamali, District Pithoragarh, relating to theft committed by him of the forest produce. P.W. 6 Soban Singh (father of the deceased Krishan Singh) was in military service and when he came to the village, accused / appellant Kishan Singh Uprari wanted Soban Singh to intervene to pacify Madho Singh and get the case withdrawn against him. However, he did not oblige and the accused was arrested relating to offence punishable under Section 379 of I.P.C., and later got bailed out. On this, on 24.10.1991, accused / appellant Kishan Singh Uprari (S/o Kalyan Singh) made an attempt to make a report against Soban Singh (P.W. 6) by moving an application under Section 156(3) of Cr.P.C. The enmity between the two did not end there, and on 27.10.1991, Soban Singh (P.W. 6), father of the deceased, got lodged another report (Ext. A – 6) against accused / appellant Kishan Singh (S/o Kalyan Singh) relating to theft of some idols. On 29.10.1991, at about 09:15 A.M., in the village of Sangar, deceased Krishna Singh (S/o Soban Singh), Rajendra Singh (P.W. 2); Mahendra Singh (P.W. 3); Lalit Mohan (P.W. 4), one Keshab Singh and Govind Singh, all students, were going to their school (Baans Inter College, District Pithoragarh). On their way to school, they took rest for a while on the top 3 of Damgora. Thereafter, they started proceeding towards their school. Suddenly accused / appellant Kishan Singh Uprari came their and assaulted and pushed Krishan Singh (S/o Soban Singh) from the hill top Damgora, down the hill. Thereafter, accused / appellant Kishan Singh Uprari chased Krishan Singh (deceased) and took a stone and hit him thrice on his head and temporal region. Consequently, Krishan Singh, a student, aged 14 years, died on the spot. Other students witnessed the occurrence of the incident. Some of them went to the school to inform the Principal and others went to the village to inform the villagers. Among the villagers Ram Singh (P.W. 1) also came at the place of incident, who was asked by the villagers to inform the police about the incident. He gave telephonic information to the police station Kotwali Pithoragarh, at about 01:20 P.M. The police registered a case on the basis of the telephonic information, and prepared check report Ext. A –10. Thereafter, the police rushed to the scene of occurrence. It took the blood stained soil and simple soil from the place of incident, and prepared memorandum Ext. A –13. The police also took into possession the stone (Ext. 1) by which accused / appellant hit on the head of the deceased. A separate memorandum (Ext. A –3) is prepared relating to said recovery. After taking the dead body into possession, the police prepared inquest report (Ext. A –14), sample of seal (Ext. A –15), sketch of the dead body (Ext. A –16), police form No. 13 (Ext. A –17) and letter to the Chief Medical Officer (Ext. A –18). Prem Pal Singh (P.W. 9), the Investigating Officer, also prepared the site plan of the place of incident. The dead body was sent in 4 sealed condition for postmortem examination. The postmortem examination was conducted by Dr. K.S. Mehta (P.W. 7) on the next day i.e. 30th October 1991, at about 10:30 A.M. The said Medical Officer prepared the autopsy report (Ext. A –9) and opined that cause of death was coma due to ante mortem head injuries. After interrogating the witnesses and completion of the investigation, the Investigating Officer submitted charge sheet (Ext. A –20) against the accused / appellant Kishan Singh Uprari (S/o Kalyan Singh) resident of Village Khati Gaon. 4) The Chief Judicial Magistrate, on receipt of the charge sheet, appears to have committed the case to the court of Sessions for trial, after giving necessary copies to the accused, as required under Section 207 of Cr.P.C. Learned Sessions Judge, after hearing the parties, framed charge of offence punishable under Section 302 of I.P.C. against accused / appellant Kishan Singh Uprari (S/o Kalyan Singh). The accused pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1 Ram Singh (informant); P.W. 2 Rajendra Singh (an eyewitness); P.W. 3 Mahendra Singh (another eyewitness); P.W. 4 Lalit Mohan (third eyewitness); P.W. 5 Pooran Singh (witness of recovery of stone (Ext. 1) from the place of incident); P.W. 6 Soban Singh (father of the deceased); P.W. 7 Dr. K.S. Mehta (who conducted the postmortem examination on the dead body of the deceased); P.W. 8 Head Constable Jagdish Chandra Tiwari, who recorded the telephonic information received relating to the murder of Krishan Singh (S/o Soban Singh), and prepared the check report Ext. A –10); and P.W. 9 Prem Pal Singh, (the 5 Investigating Officer). The oral and documentary evidence was put to the accused under Section 313 of Cr.P.C., in reply to which he alleged the evidence adduced by the prosecution to be false. He further stated that he was falsely implicated due to political rivalry. However, no evidence in defence was adduced on behalf of the accused. After hearing the parties, the trial court found accused Kishan Singh Uprari (S/o Kalyan Singh) guilty of charge of offence punishable under Section 302 of I.P.C. After hearing the parties on sentence, learned trial court sentenced the convict to undergo imprisonment for life. Hence, this appeal was filed by the convict before the Allahabad High Court on 21.12.1993, where it was admitted on 22.12.1993. The appeal is received by transfer to this Court under Section 35 of the U.P. Re-organization Act, 2000 (Central Act No. 29 of 2000), for its disposal. 5) Before further discussion, we think it just and proper to reproduce here the ante mortem injuries found by the Medical Officer Dr. K.S. Mehta (P.W. 7), who prepared the autopsy report (Ext. A –9). The ante mortem injuries mentioned in the autopsy report are as under: i) “Lacerated wound on the left side of head in temporal region. Triangular in shape 6.5 cm X 7 cm X bone deep, muscle torn and crushed, extending below on face in front of ear. ii) Lacerated wound 5 cm X 2 cm X bone deep, on left side of forehead (vertical) 1 cm away from injury No. (i). 6 iii) Abraded contusion 6 cm X 5 cm on left cheek 2 cm below from injury No. (i). iv) Lacerated wound 1.5 cm X 0.5 cm X muscle deep on left cheek, 3 cm away from angle of mouth. v) Lacerated wound (trans) 6 cm X 1.5 cm X scalp deep, right side of the forehead 3 cm above from mid eyebrow. vi) Contusion 7 cm X 5 cm on right side of forehead extending below the cheek. vii) Lacerated wound 4 cm X 2.5 cm X bone deep (transverse) in right parietal region of head 8 cm above from the top of ear. viii) Abraded contusion 8 cm X 4 cm on right posterior surface of shoulder region 2 cm below from the shoulder joint. ix) Abrasion 3 cm X 1 cm on right posterior surface of area. 2 cm above from the elbow joint. x) Abrasion 2 cm X 1 cm on left posterior surface of area. 1 cm above the elbow joint. xi) Abrasion 2.5 cm X 1 cm on anterior surface on right ankle. xii) Abrasion 1.5 cm X 1 cm on right medial side on ankle joint. xiii) Abrasion 1 cm X 0.5 cm on left anterior surface of knee.” The Medical Officer, on internal examination found that there were multiple fractures on the skull in the left temporal bone. There was also another fracture in the right parietal bone. Brain material under the skull was found 7 lacerated. The Medical Officer, who conducted the postmortem examination opined that cause of death was coma due to ante mortem head injuries. The Medical Officer also recorded that the dead body was one day old. From the above mentioned report, it is clear that Kishan Singh (S/o Soban Singh) aged 14 years, died on 29.10.1991, on account of ante mortem head injuries. 6) Now, the question before this Court is, who had caused head injuries on the person of Krishan Singh (S/o Soban Singh). P.W. 2 Rajendra Singh, the eyewitness, has stated that the deceased was student on Class IX, and he (P.W. 2) was student of Class XI, in the same school (Baans Inter College). The witness further states that on 29.10.1991, both of them along with other students Mahendra Singh, Lalit Mohan, Govind Singh and others proceeded from their village Khatigaon for the school. When they reached near jungle, the other students also joined them. They took rest on the top of Damgora. After sometime, accused Kishan Singh Uprari (S/o Kalyan Singh) came there. He pushed Krishan Singh (S/o Soban Singh) down the hill and chased him thereafter. When Krishan Singh (S/o Soban Singh) fell down about 80-82 paces and got stuck, the accused Kishan Singh (S/o Kalyan Singh) took a stone and gave 2-3 blows on the head and temporal region of the deceased. Thereafter, the accused Kishan Singh (S/o Kalyan Singh) ran away from the place of incident. The witness further states that some of the students went to inform in the school and others towards the village to inform the villagers. Villagers from 8 Khatigaon came to the place of incident. Ram Singh (P.W. 1) was sent to inform the police over phone. 7) The prosecution story narrated by P.W. 2 Rajendra Singh gets fully corroborated by the statement of P.W. 3 Mahendra Singh, another student of the school, who was also coming from his village Khatigaon to Baans Inter College with the deceased and other students. Not only this, P.W. 4 Lalit Mohan, aged 17 years, who is also student of the same school and resident of same village, has also corroborated the prosecution story, as narrated by P.W. 2 Rajendra Singh and P.W. 3 Mahendra Singh. All the three eyewitnesses have stated that accused Kishan Singh (S/o Kalyan Singh) pushed Krishan Singh (S/o Soban Singh) down the hill and thereafter gave blows with a stone on his head 2-3 times. The injuries recorded as ante mortem injuries in the autopsy report corroborate the statements of these three eyewitnesses. P.W. 5 Pooran Singh, who has proved that the stone by which the accused hit at deceased was recovered by the police and recovery memo of the same was prepared in his presence. 8) P.W. 6 Soban Singh, father of the deceased, has disclosed the motive of commission of murder on the part of accused / appellant Kishan Singh Uprari. It is stated by him that a case relating to a theft was initiated against accused Kishan Singh Uprari. When he (Soban Singh) came on leave from service, the accused wanted from him that he should exercise his influence to get the case withdrawn, initiated by one Madho Singh. It appears that thereafter, some criminal case was initiated by accused 9 Kishan Singh Uprari against Soban Singh and then, one by Soban Singh against Kishan Singh Uprari, relating to commission of theft of idols. The documents relating to this litigation were also proved by this witness. 9) P.W. 8 Head Constable Jagdish Chandra Tiwari had proved that on receiving telephonic information of murder of Krishan Singh (S/o Soban Singh), he prepared the check report (Ext. A –10). 10) After going through the entire evidence on record, as discussed above, we are in agreement with the trial court that prosecution has successfully proved the charge of offence punishable under Section 302 of I.P.C. against the accused / appellant Kishan Singh Uprari (S/o Kalyan Singh). Testimony given by the three eyewitnesses is natural and trustworthy. Learned counsel for the accused / appellant argued that the accused / appellant has been falsely implicated due to the political rivalry between Soban Singh and the accused. In this connection, it is submitted that informant Ram Singh belongs to Bhartiya Janta Party, while the accused Kishan Singh (S/o Kalyan Singh) belongs to Samajwadi Party. We do not find much substance in the argument advanced on behalf of accused / appellant for the reason that the eyewitnesses are students and they are neither members of Bhartiya Janta Party, nor Samajwadi Party. Natural narration on their part of the incident does not create any doubt as to the truthfulness of the prosecution story. 10 11) For the reasons as discussed above, we do not find anyforce in this appeal, which is liable to be dismissed. The appeal is dismissed. The conviction and sentence recorded by the trial court against accused / appellant Kishan Singh Uprari (S/o Kalyan Singh) under Section 302 of I.P.C. needs no interference. The accused / appellant is on bail. His bail is cancelled. The Registry is directed to send the lower court record back to the trial court to ensure that the convict Kishan Singh Uprari (S/o Kalyan Singh) is made to serve out the sentence awarded against him by said court. (Dharam Veer, J.) (Prafulla C. Pant, J.) Dt. August 12, 2008. H. Negi 11