Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 276 of 2001 (Old No. 251 of 1993) 1. Jaivir Singh S/o Sri Hari Singh R/o Villaga –Ganwada, Patti Dasjula Jaunpur, P.O. Bhawan, District Tehri Garhwal. 2. Hari Singh S/o Sri Rajmal Singh R/o Village Ganwada Patti Dasjula Jaunpur, P.P. Bhawan, District Tehri Garhwal. ...…………. Appellants Versus The State ...…………. Respondent Mr. Lokendra Dobhal, learned counsel for the appellants. Mr. H.C. Pujari, Addl. Govt. Advocate for the respondent-State. Coram : Hon’ble Prafulla C. Pant, J. Hon’ble Dharam Veer, J. Per Hon. Prafulla C. Pant, J. 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 03.02.1993, passed by learned Sessions Judge, Tehri Garhwal, in Sessions trial No. 11 of 1990, whereby accused / appellant No. 1 Jaivir Singh has been convicted under Section 302 and 307 of the Indian Penal Code, 1860 (hereinafter referred as I.P.C.). And, accused / appellant No. 2 Hari Singh has been convicted under Section 302 read with Section 34 and under Section 307 read with Section 34 of I.P.C. Each one of the convicts has been directed to undergo imprisonment for life on the first count (charge), and rigorous imprisonment for a period of five years, and also to pay fine of Rs. 2,000/- on the second count (charge). 2) Heard learned counsel for the parties and perused the lower court record. 3) Prosecution story, in brief, is that Hukum Singh (deceased) was owner of the plot adjoining to minor canal (GOOL) and below after that in the hilly terrain was the plot of accused / appellant No. 2 Hari Singh. Accused / appellant No. 1 Jaivir Singh is son of accused / appellant Hari Singh. On 29.04.1989, at about 06:00 P.M., Hukum Singh (deceased) who was coming towards his house in Village Gawana met his son Kamal Singh (P.W. 2), who was coming out of the house. He (deceased) enquired from Kamal Singh (P.W. 2) as to whether paddy crop has been sown, or not? In reply to said query, Kamal Singh told his father that Hari Singh and Jaivir Singh have started irrigating their plots, as such, the water got logged more than required in the plot (of the deceased). On this, Hukum Singh reached at his plot and altercation started between Hukum Singh on one hand and Jaivir Singh, his mother Son Dei and his sister-in-law Roop Dei, on the other hand. On hearing the noise, complainant Kamal Singh (P.W. 2) turned back and came towards the plot. Meanwhile, Hima Devi (P.W. 1), widow of the deceased, also reached there. When the quarrel further picked up, accused / appellant No. 2 Hari Singh also came out from his house. And, Hukum Singh and Hari Singh started grappling with each other. Thereafter, Jaivir Singh on being exhorted by Hari Singh gave a knife blow to Hima Devi in her stomach. Frightened Hima Devi moved aside. Thereafter, accused / appellant No. 1 Jaivir Singh stabbed in the stomach of Hukum Singh on which he fell down. His intestine protruded out and he died on the spot. Complainant Kamal Singh (P.W. 2) started running hither and thither. The accused, which according to the prosecution story, included not only the accused / appellants Jaivir Singh and Hari Singh, but also Son Dei and Roop Dei, started pelting stones and one of the stone hit on the head of Kamal Singh. Meanwhile, Jagat Singh (P.W. 6) and Bijendra Singh (P.W. 7) also reached there and the accused fled away. On the very day, Kamal Singh lodged the first information report (Ext. A –1), after getting it scribed from one Dimri, with Patti Patwari Gowana (District Tehri Garhwal). [In the interior hills of Uttarakhand, certain Revenue Officials are given police powers, under U.P. Government Notification No. 494 / VIII –418 –16 dated 7th March 1916]. Janak Lal, Patwari (P.W. 8) on receipt of the first information report (Ext. A –1) prepared the check report (Ext. A –5) of the same, at 07:00 P.M., on 29.04.1989, and made necessary entry in the general diary. Firstly, the Patwari tried to contact a doctor at nearby place Bhawan for the treatment of the injured, but on the advise of the Doctor, Hima Devi was directed to be taken to Civil Hospital, Mussoorie. Dr. D.K. Srivastava (P.W. 3) recorded the injuries on the person of Hima Devi on 30.04.1989, and prepared injury report (Ext. A –2). Patwari Janak Lal, who investigated the crime, took the dead body of Hukum Singh in his possession and prepared the inquest report (Ext. A –7) on 30.04.1989. He also prepared the sketch of the dead body (Ext. A –8), police form No. 13 (Ext. A –9) and other necessary papers. The Patwari got sent the dead body of Hukum Singh for postmortem examination in a sealed condition. Dr. J.P. Chamoli (P.W. 5) of the Joint Hospital, Tehri Garhwal, conducted the postmortem examination on 01.05.1989, and prepared the autopsy report (Ext. A –4). He opined that cause of death was syncope due to excessive haemorrhage on account of ante mortem stab injuries. After arrest of accused Jaivir Singh, the knife (Ext. 14) used in the crime was recovered from his house on pointing out of said accused, by the Investigating Officer Janak Lal, who prepared the recovery memo (Ext. A –3). On 03.05.1989, the injuries of Jaivir Singh and Son Dei were also got examined, which are Ext. A –17 and Ext. A –18, on the record. After completion of investigation, which included preparation of site plan and getting recorded the statements of Jagat Singh and Bijendra Singh under Section 164 of Cr.P.C., the Investigating Officer submitted charge sheet (Ext. A –15) against all the four named accused in the first information report i.e. Jaivir Singh (accused / appellant No. 1); Hari Singh (accused / appellant No. 2); Son Dei and Roop Dei (wife of Jaivir Singh). 4) The 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. On 30.07.1990, learned Sessions Judge, Tehri Garhwal, after hearing the parties, framed charge of offences punishable under Section 302 of I.P.C. (for commission of murder of Huqum Singh); under Section 307 of I.P.C. (for attempting to commit murder of Hima Devi) and under Section 323 of I.P.C. (for causing hurt to Kamal Singh) against accused Jaivir Singh. A separate charge was framed by learned Sessions Judge against rest of the three accused, namely Hari Singh (present appellant No. 2), Son Dei and Roop Dei relating to offences punishable under Section 302 read with Section 34 of I.P.C.; under Section 307 read with Section 34 of I.P.C., and under Section 323 read with Section 34 of I.P.C. All the accused pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1 Hima Devi, injured eyewitness (widow of the deceased); P.W. 2 Kamal Singh (complainant and injured eyewitness); P.W. 3 Dr. D.K. Srivastava (who examined injuries on the person of Hima Devi); P.W. 4 Murari Lal (witness of recovery of knife on pointing out of accused Jaivir Singh); P.W. 5 Dr. J.P. Chamoli (who conducted the postmortem examination on the dead body of Hukum Singh); P.W. 6 Jagat Singh (declared hostile); P.W. 7 Bijendra Singh (declared hostile) and P.W. 8 Patwari Janak Lal (the Investigating Officer). The oral and documentary evidence was put to the accused under Section 313 of Cr.P.C., in reply to which they alleged the same to be false. It is further alleged by them that they have been implicated due to enmity. However, at the end of his reply accused / appellant No. 1 Jaivir Singh has stated that he gave a knife blow to Hukum Singh to save his father Hari Singh. But, no evidence in defence was adduced. After hearing the parties, the trial court found accused Jaivir Singh guilty of charge of offences punishable under Section 302 and 307 of I.P.C. The trial court further found accused Hari Singh guilty of charge of offences punishable under Section 302 / 34 of I.P.C. and one punishable under Section 307 / 34 of I.P.C. However, it did not find the rest of the two accused Son Dei and Roop Dei guilty of the charge framed against them, and the two women accused were acquitted. After hearing the parties on sentence, the trial court sentenced convict Jaivir Singh to imprisonment for life (for committing murder of Hukum Singh) and rigorous imprisonment for a period of five years and also to pay fine of Rs. 2,000/- (for attempting to commit murder of Hima Devi). The convict Hari Singh was sentenced to similar imprisonment under Section 302 read with Section 34 of I.P.C. and under Section 307 read with Section 34 of I.P.C. However, both were acquitted of charge of offence punishable under Section 323 of I.P.C. Aggrieved by said judgment and order dated 03.02.1993, passed by learned Sessions Judge, Tehri Garhwal, in Sessions Trial No. 11 of 1990, this appeal was filed before the Allahabad High Court by the two convicts on 10.02.1993, where it was admitted on 11.02.1993. The appeal is received to this Court by transfer under Section 35 of the U.P. Re-organization Act, 2000, for its disposal. 5) Before further discussion, it is pertinent to mention here, the ante mortem injuries found on the dead body of Hukum Singh (deceased) recorded by Dr. J.P. Chamoli 5) on 01.05.1989, who prepared the autopsy report (Ext. A –4). The ante mortem injuries mentioned in the autopsy report read as under: i) “A stab wound over the epigastrium which is peritoneum deep, margins clear cut, through which greater omentum and part of stomach is coming out. There is an incised wound (through and through) over omentum in upper part in which two vessels are cut off. The wound is extending towards right lower part of chest 5 cm below right nipple. This is tail of stab wound 7 cm X 1/4 cm X skin deep, margins clear cut . ii) There is an incised wound over the outer part of left elbow joint 5 cm X 1 cm X muscle deep. Some vessels over the left cubital fossa are also sectioned. ” The cause of death, according to the Medical Officer (Dr. J.P. Chamoli), was due to syncope on account of excessive haemorrhage from the ante mortem injuries No. 1 and 2. 6) Now, we come to the stab injury found on the person of Hima Devi (P.W. 1) by Dr. D.K. Srivastava (P.W. 3), who examined her on 30.04.1989 in Civil Hospital Mussoorie (Tehri Garhwal is a bordering District to Mussoorie). The said Medical Officer prepared the injury report (Ext. A –2) which discloses following injuries found on the person of Hima Devi: i) “An incised wound 7 cm X 0.5 cm X muscle deep present over the right side of abdomen. 6.5 cm above and lateral to umbilicus. Head end at the medial side and tailing present at the left side of wound. Margins are clear cut and everted. ii) Multiple contused abrasion present at the right glutial region 13 cm X 11 cm, reddish in colour.” Both the injuries were found to be simple in nature. 7) From the ante mortem injuries of Hukum Singh (deceased), mentioned above, and the injuries suffered by Hima Devi (P.W. 1), quoted above, it is clear that on 29.04.1989, Hukum Singh has died homicidal death after receiving stab injuries, and Hima Devi has suffered the stab injury in her stomach (vital part). Now, this Court has to see who has caused these injuries and whether there was intention to commit the murder of the deceased and that of the injured. Before coming to the oral testimony of the eyewitnesses in the matter, it is pertinent to mention here that accused Jaivir Singh in his statement under Section 313 of Cr.P.C. has stated that he stabbed Hukum Singh to save his father Hari Singh (accused / appellant No. 2). Also, suggestion has been made to the eyewitnesses on behalf of the defence that the injury was caused on the person of Hukum Singh by Jaivir Singh to save his father, as according to the defence suggestion while grappling, Hukum singh had overpowered Hari Singh and grounded him and he was causing injuries to Hari Singh by riding over his chest. As such, in fact, accused / appellant No. 1 Jaivir Singh has taken the plea of private defence. In other words, stabbing Hukum singh by Jaivir Singh is admitted to him. 8) Now, we come to the oral testimony. P.W. 1 Hima Devi, the injured eyewitness (widow of the deceased) has stated that it was 06:00 P.M. on the day of incident when she came out of her house on hearing the noise, and she saw that in the field accused Hari Singh and her husband Hukum Singh were fighting with each other and on exhortation of Hari Singh, Jaivir Singh gave a stab wound at her when she was trying to save her husband from Hari Singh. The witness further states that she suffered injury in her stomach. Thereafter, according to this witness (P.W. 1 Hima Devi) Jaivir Singh inflicted knife injury in the stomach of her husband (Hukum Singh), who fell down and died. 9) P.W. 2 Kamal Singh, complainant and injured eyewitness (son of the deceased) has stated that on 29.04.1989, at about 5:30 –6:00 P.M., he met his father who was coming towards his house, and the witness (P.W. 2) came out of his house was going towards Bhawan, his father Hukum Singh asked him whether the paddy crop has been sown by him. On this, this witness (P.W. 2 Kamal Singh) replied that since accused / appellants Hari Singh and Jaivir Singh are filling water in their field due to which the field of the witness is over flooded with water, and paddy could not be sown. On this, his father Hukum Singh told him that he is going to the field and getting the water stopped. Soon thereafter, according to P.W. 2 Kamal Singh, he heard noise and turned back and came to the field and saw that accused / appellant No. 1 Jaivir Singh, Son Dei and Roop Dei were hurling abuses at his father. Meanwhile, his mother P.W. 1 Hima Devi had also reached there, and accused / appellant No. 2 Hari Singh also came there. Hari Singh and Hukum Singh started fighting and grappling with each other. On this, Hima Devi went to save Hukum Singh. Meanwhile, Hari Singh who had a knife handed it over to Jaivir Singh and exhorted him to kill them. Thereafter, accused Jaivir Singh gave a knife blow to Hima Devi in her stomach and then Hukum Singh was given knife blow by Jaivir Singh. According to the witness, after getting inflicted knife injury, intestines of Hukum singh protruded out and he died on the spot. 10) From the oral testimony of above two eyewitnesses, one of whom is an injured eyewitness, the prosecution has successfully proved the charge of commission of murder of Hukum Singh and attempt to commit murder of Hima Devi against accused Jaivir Singh and the same charge read with Section 34 of I.P.C. are proved against accused Hari Singh beyond all reasonable doubt. The natural narration of the prosecution story given by the eyewitnesses gets full corroboration from the ante mortem injuries of Hukum Singh and injury report of Hima Devi. Apart from this, the defence itself has suggested to the witnesses that the injuries were caused by Jaivir Singh, in private defence. P.W. 6 Jagat Singh and P.W. 7 Bijendra Singh have supported the defence story, but the two were declared hostile as they appear to have won over by the accused. There are statements recorded under Section 164 of Cr.P.C., which are proved on the record, which show that the two witnesses had earlier narrated a different story before the Magistrate. 11) Now, we have to examine whether the accused / appellant No. 1 Jaivir Singh has caused the injury in private defence to save his father, as suggested by learned counsel for the appellants, or not? Having carefully scrutinized the entire evidence on record, and after reassessing the evidence, we found that neither Hukum Singh was armed with any weapon, nor Hima Devi was armed with any weapon. Merely, for the reason that Hukum Singh had while grappling with Hari Singh grounded him, it cannot be said that it necessitated causing knife injury on the person of Hima Devi or to Hukum Singh. Assuming for a moment, that to save Hari Singh, Jaivir Singh wanted to stab Hukum Singh, but there was no occasion for him to give a stab injury in the stomach of Hima Devi and then to give another stab injury to Hukum Singh that too so violently that the intestines got protruded out and he died on the spot. We have also seen the injury reports of Jaivir Singh and Son Dei which are abrasions and contusion and superficial in nature. There is no injury found on the person of Hari singh to whom Jaivir Singh says he wanted to save. 12) For the reasons as discussed above, we do not find any error in the impugned judgment and order, which requires interference by this Court. Therefore, the appeal is liable to be dismissed. The same is dismissed. Both the accused / appellants are on bail. Their bail is hereby cancelled. The Registry is directed to send the lower court record back to the trial court to make the accused / appellants (convicts) serve out the sentences awarded against them. (Dharam Veer, J.) (Prafulla C. Pant, J.) Dt. July 16, 2008. H. Negi