IN THE HIGH COURT OF UTTARANCHAL, NAINITAL. No. 10 COURT’S ORDER WHETHER THE CASE IS OR NOT APPROVED FOR REPORTING. [Chapter VIII, Rule 32(2) (b)] Criminal appeal No. 261/2002 Jasvinder Singh and another Vs State of Uttaranchal. AND Criminal Appeal No. 262/2002 Dilbagh Singh Vs. State of Uttaranchal. With Criminal Revision No. 121/2002 Gurudev Singh Vs. State and others. Decided on 26-5-2005 A.F.R. ( Approved for Reporting) Not Approved for Reporting ( Hon’ble Irshad Hussain, J.) 26-5-2005 ( Hon’ble Prafulla C. Pant, J.) 26-5-2005 In the High Court of Uttaranchal, at Nainital. Criminal Appeal No. 261/2002 1- Jasvinder Singh S/o Late Sri Jeet Singh, 2- Smt. Veero Kaur W/o Late Sri Jeet Singh, R/o village Kela Banwari P.S. Bazpur, District Udham Singh Nagar … Appellants. Vs. State of Uttaranchal …. Respondent. AND Criminal Appeal No. 262/2002 Dilbagh Singh S/o Late Sri Jeet Singh R/o village Kela Banwari P.S. Bazpur, District Udham Singh Nagar … Appellant. Vs. State of Uttaranchal …. Respondent. Sri P.M.N. Singh, learned Senior Advocate, assisted by Ms. Prabha Nauliyal and Sri Arvind Vashisth, learned counsel for the appellants. Sri Amit Bhatt, learned A.G.A. for the State. Sri Dharam Veer Sharma, learned Senior Advocate assisted by Sri B.S. Parihar, learned counsel for the informant/complainant. WITH Criminal Revision No. 121/2002 Gurudev Singh … Revisionist. Vs. State of Uttaranchal and others …. Respondents. Sri Dharam Veer Sharma, learned Senior Advocate assisted By Sri B.S. Parihar, learned counsel for the revisionist. Sri P.M.N. Singh, learned Senior Advocate assisted by Ms. Prabha Nauliyal and Sri Arvind Vashisth, learned counsel for the respondents-accused. Coram: Hon’ble Irshad Hussain, J. Hon’ble Prafulla C. Pant, J. Dated: 26th May, 2005. ( Per : Hon’ble Irshad Hussain, J.) These appeals and revision arise out of the judgment dated 1-10-2002 passed by the then Sessions Judge, Udham Singh Nagar at Rudrapur in Sessions Trial No. 345/2001. Five accused faced trial. Out of those five, Sukhdev alias Satnam and Tejendra Singh were not held guilty and acquitted. Accused Smt. Veero Kaur and her two sons accused Dilbagh Singh and Jasvinder Singh were convicted and sentenced to imprisonment as under:- Sl. No Name of the accused Convicted under Sections Sentence of imprisonment 1- 2- Dilbagh Singh and Jasvinder Singh (a) under Section 302/149 I.P.C. (b) under Section 307/149 I.P.C. (c) under Section 148 I.P.C. - imprisonment for life - Rigorous imprisonment for five years. - Rigorous imprisonment for two years. 3- Smt. Veero Kaur (a) under Section 302/149 I.P.C. (b) under Section 307/149 I.P.C. (c)under Section 147 I.P.C. -Imprisonment for life. -Rigorous imprisonment for five years. -Rigorous imprisonment for one year 2- Informant Gurudev Singh being aggrieved by the judgment of acquittal of the two accused preferred the revision. 3- Sri Jeet Singh, the husband of accused Smt. Veero Kaur and father of other two convicted accused was the real brother of Gurdeep Singh deceased, one of the two victim of the incident in question. The other victim Kulwant Singh deceased was his son. Informant Gurdev Singh ( P.W.1) is his another son, whereas injured-eye witness Smt. Preetam Kaur (P.W.3) is his widow. Sukhdev alias Satnam and Tejendra Singh, who were acquitted are the sons of Smt. Swarna Kaur and Smt. Charanjit Kaur respectively, the sisters of accused Smt. Veero Kaur. Both the brothers late Jeet is and Gurdeep Singh deceased have their residential houses adjacent to each other in village Kela Banwari. The way from village Banna kheda comes to the house of Gurdeep Singh deceased from in front of the house of late Jeet Singh. At the time of the incident these family members of the two brothers were residing in these houses. The inter se relationship and the factual position of the houses is not in dispute. 4- The prosecution case is that on 26-1-2001 Gurdeep Singh and his son Kulwant Singh were coming from Banna kheda on motorcycle No. U.P. 04-B-9904, then driven by Gurdeep Singh and Kulwant Singh was the pillion rider. At about 11.45 A.M. they reached in front of the house of late Jeet Singh. At that point of time accused Dilbagh Singh and Jasvinder Singh armed with rifle and a gun respectively and two of their companions identifiable by their faces and each of them having of rifle, were found present there. All these four in order to kill Gurdeep Singh and Kulwant Singh started firing on them where as Smt. Veero Kaur who was also standing there exhorted them to kill both the victims. Kulwant Singh on receiving fire arm injuries, fell on the ground and died instantaneously, but Gurdeep Singh started running from there and entered his house. The accused-assailants followed him while firing at him as a result of which he (Gurdeep Singh) also breathed his last due to fire arm injuries. Smt. Preetam Kaur and her son informant Gurudev Singh were at that time in the way in front of the house as they were to leave for Bazpur town. In the incident Smt. Preetam Karu was hit by a fire arm shot and sustained injury. Both of them witnessed the incident. They also raised an alarm whereby Balbir Kaur wife of Kulwant Singh deceased, (the sister- in-law of the informant) came out of the house and saw the incident. As a result of the firing, the window-pans of the house of the victims were also broken. 5- According to the prosecution, on account of litigation pertaining to land, the accused were entertaining enmity and grudge against the victims and they gave vent to their feeling by committing said crime. 6- After the occurrence, informant Gurudev Singh (P.W.1) prepared written report, Ext. Ka.1 and delivered it at P.S. Bazpur. On its basis whereof check F.I.R., Ext. Ka.4 was drawn up the same day, that is, 26.1.2001 at 1.45 P.M. under Sections 147/148/149/307/302 I.P.C. Station Officer R.C. Thapliyal (P.W.8) took up the investigation of the case. He left for the village of the occurrence and held inquest on the dead bodies of the two victims, attached sample of blood-stained and plain earth from the scene of the occurrence, besides other articles. The packed and sealed dead bodies of the two deceased were sent for post mortem. In the course of the investigation he recorded the statements of the witnesses and one of the eye witness Sukhdev Singh ( P.W.4) the cousin of the informant, gave out the names of the two assailants not nominated as such in the written F.I.R. and this is how these two Satnam and Tejendra were brought to the book. The informant and his mother were also convinced about the identity of these two assailants and they affirmed their participation in the incident. Accused Dilbagh Singh and Jasvinder Singh were arrested on 31-1-2001 and the licensed rifle and 12 bore gun of Dilbagh Singh were recovered. These were sent for examination and verification to the expert along with other items including the empty cartridges and bullet attached by the Investigating Officer from the scene of the incident and on completion of the usual formalities of the investigation, charge sheet was submitted against all the five accused-assailants on 31.3.2001 showing accused Satnam Singh and Tejendra Singh as absconders. 7- On the case being committed to the Court of Sessions, the charges were framed against all these five on 23-3-2002. The accused did not admit the accusations of the prosecution and attributed enmity as the cause for their implication in the crime. Prosecution to bring home guilt to the accused placed reliance on the evidence of eight witnesses including P.W.1, Gurudev Singh, the informant eye witness, P.W.3 Smt. Preetam Kaur injured of the case and P.W.4, Sukhdev Singh, another eye witness. They narrated the prosecution case as set up in the F.I.R. and at the same time also reiterating that the assailants not nominated in it were Sukhdev alias Satnam and Tejendra Singh. P.W.2, Dr. M.M.. Prasad proved medical examination and injuries found on the person of Smt. Preetam Kaur. P.W.5, H.C. Ramesh Singh formally proved check F.I.R., Ext. Ka.4 and G.D. report of registration of the case on its basis. P.W.6, S.I. Shyam Narayan Mishra has prepared inquest report of the two deceased under the supervision of S.H.O. The inquest report of Kulwant Singh deceased is Ext. Ka.6 and whereas the inquest report of Gurdeep Singh deceased is Ext. Ka.10. This witness also connected and proved other papers including challan reports of the inquest of the two deceased. P.W.7, Dr. Shamim Ahmad, the Autopsy Surgeon, proved post mortem examination reports of Gurdeep Singh deceased ( Ext. Ka.15) and of Kulwant Singh deceased ( Ext. Ka.16). P.W.8, S.I. Rakesh Chandra Thapliyal was the station officer of P.S. Bazpur on the date of the incident and he investigated the crime. He proved various steps taken in the investigation including the site- plan, seizure memos of the recoveries of the material exhibits and charge sheet filed in the case. This all of the prosecution evidence. In defence accused did not adduce any oral evidence . By way of documentary evidence two photographs, copy of pass-port of accused Tejendra Singh, his saving banks pass book with photograph and copy of the questionnaire and reply of the court of Additional Chief Judicial Magistrate, Kashipur were filed. 8- The learned Sessions Judge made appreciation of the evidence in the case and placed reliance on the evidence of the informant P.W.1, and his injured mother P.W.3, the two eye witnesses of the incident and found that their evidence was corroborated by the medical evidence in the case as well as the F.I.R. lodged without delay in regard to the involvement of the three accused Dilbagh Singh, Jasvinder Singh and Smt. Veero Kaur and accordingly conviction was made and sentences imposed against them as aforesaid. The evidence of so called eye witness P.W.4, Sukhdev Singh was not found reliable apart from the other evidence in the case in relation to the other two accused namely Tejendra Singh and Satnam and therefore they were acquitted of the charges levelled against them. 9- In support of the appeal the learned Senior Advocate appearing on behalf of the appellants and also on behalf of the accused-respondents in the criminal revision submitted that the evidence of P.W.1 and P.W.3 should not have been relied upon by the learned Sessions Judge and the injuries as noticed by the doctors ( P.W.2 and P.W.7) do not corroborate the evidence of the alleged eye witnesses. According to him the F.I.R. of the case was prepared after the steps towards investigation of the crime have already been taken and it was made to conform to the injuries of the two deceased to saddle the responsibility of the crime on the appellant. He further urged that the learned Sessions Judge has not properly analyzed the evidence in relation of the accused convicted in the case and that they were also entitled to have been held not guilty like the two other alleged assailants acquitted on scrutiny of the evidence. Learned counsel also urged that the investigation of the crime has been tainted and unfair. 10- In response, learned Senior Advocate appearing on behalf of the complainant and the learned A.G.A. submitted that the two eye witnesses relied upon by the learned Sessions Judge were the most probable and natural witnesses of the occurrence and that P.W.3 in addition to her being the eye-witness was also the victim of the incident and there was no reason as to why they will let the real culprit go scott-free and falsely implicated the innocent. They accordingly urged that the evidence of the eye witnesses which was corroborated by the medical evidence as well as the prompt F.I.R. proved beyond doubt the participation of the accused in the crime. On this backdrop we have to see whether the learned Sessions Judge was right in convicting the three accused and acquitting the other two. 11- We find it desirable to refer in the first instance the medical evidence in the case. P.W.7, Dr. Shamim Ahmad held autopsy on the dead bodies of Gurdeep Singh and Kulwant Singh on 27-1-2001 from 10-30 A.M. and prepared the post mortem examinations reports. The post mortem examination report of Gurdeep Singh deceased is Ext. Ka.15 and according to the Medical Officer, the following ante-mortem injuries were detected on the person of the deceased:- 1- Multiple fire arm wounds of entry size varying from 0.5 cm x 0.5 cm to 1cm x 1cm and muscle, abdominal cavity deep on the left side of abdomen, 1cm lateral to umbilicus. Margins of wounds are inverted. (NO) blackening and tattooing. 2- Multiple fire arm wounds of entry four in number and size varying from 0.5cm x 0.5 cm to 1cm x 1cm and muscle, abdominal cavity deep on right side of abdomen, 8cm lateral to umbilicus. Margins of wounds are inverted. No blackening and tattooing; in an area of 10cm x 8cm. 3- Multiple fire arm wounds of entry size varying from 0.3 cm 0.3cm to 1cm x 1cm and skin to muscle deep on the antero lateral surface of left thigh, 8cm below and antero superior-illiac-spine. Margins of wounds are inverted. NO blackening and tattooing; in an area of 13cm x 12cm. On internal examination both the chambers of the heart were empty. Peritoneum were ruptured. There was 200 grams semi- digested food in the stomach. Small intestine was also lacerated and there was semi digested food in it. Large intestine was also lacerated. Eight metallic pellets (six small and two big) were recovered from the body. 12- The post mortem report of Kulwant Singh deceased prepared by the doctor is Ext. Ka.16 on the record. The following ante- mortem injuries were detected on the person of this victim:- 1- Fire arm wound of entry on the right side of nose at ala of nose, 1.5cm x 1.5cm x communicating to injury No.2. margins of wound inverted. No blackening and tattooing. 2- Fire arm would of exit on the left side head, 20cm x 15 cm x communicating to injury No.1. Margins of wound everted and lacerated. 3- Fire arm wound of entry 2cm x 2.5 cm x communicating to injury No.4 on the epigestric region of abdomen. Margins of wound inverted. (NO) blackening and tattooing. 4- Fire arm wound of exit 4xm x 3cm x communicating to injury No.3 on the front of left shoulder. Margins of wound everted and lacerated. 5- Fire arm wound of entry 1.5 cm x 1cm x communicating to injury No.6 on the back, 2.5cm towards left to mid line and 15cm above to upper part of fold between two hips. Margins of wound inverted. (NO) blackening and tattooing. 6- Fire arm wound of exit 5cm x 4cm on the right side abdomen, 15 cm below the right nipple at 7 o’clock position. Margins of wound everted and lacerated. 7- Fire arm wound of entry 1.5cm x 1.5cm x communicating to injury No.8, on the medial surfact of right arm, 3cm above the wrist joint. Margins of wound inverted. No blackening and tattooing. 8- Fire arm wound of exit 4cm x 3.5cm x communicating to injury No.7 on the lateral surface of right arm, 5cm above the wrist joint. Margins of wound everted. 9- Fire arm wound of entry 2.5cm x 2cm x communicating to injury No.10 on the right elbow joint. Margins of wound inverted. No blackening and tattooing. 10- Fire arm wound of exit 8cm x 4cm x communicating to injury No.9 on the posterior medial surface of right arm 4cm below the injury No.9. Margins of wound everted and lacerated. 11- Fire arm wound of entry 2cm x 2cm x abdominal cavity deep, on the epigestric region, 1cm towards right to injury No.3. Margins of wound inverted. No blackening and tattooing. 12- Fire arm wound of entry, 1.5cm x 1cm x abdominal cavity deep on the right side of back, 6cm away to injury No.5 in horizontal place. Margins of wound inverted. No blackening and tattooing. 13- Fire arm wounds of entry, multiple on the antero lateral surface of left knee joint in an area of 12 cm x 10cm and 0.3 cm x 0.3cm x skin deep size. Margins of wound inverted. No blackening and tattooing. Ulna and radius bones of left hand were found fractured. On internal examination the frontal, parietal and left temporal bones of the skull were found fractured. Brain and brain membranes were lacerated. Base of the bones of the head were also fractured. Vertebrae (L-2) was fractured. Second and third ribs of the left side were fractured. There was ½ liter clotted blood present in the stomach. Small and large intestines were lacerated at places. Liver and kidney were also lacerated. Eight metallic pellets were recovered from the body. In the opinion of the Medical Officer the death of both these deceased occurred due to shock and haemorrhage as a result of ante-mortem injuries about one day ago. 13- From the above medical evidence there can be no doubt that both the victims Gurdeep Singh and Kulwant Singh died homicidal death. There post mortem examination was conducted from 10.30 A.M. on 27-1-2001 and according to P.W.7 Dr. Shamim Ahmad, the two deceased died about a day ago, meaning thereby the victims breathed their last near about the time of the incident, that is, at 11.40 A.M. as alleged by the prosecution. The evidence to this effect was also given by P.W.1 and P.W.2, the two eye witnesses and there can be no doubt that their evidence stand corroborated by the medical evidence in regard to the time of the incident. On behalf of the appellants the time of the incident has also not been challenged. In regard to the place of the occurrence also we find no serious challenge as is evidence from the cross-examination of the eye witnesses, one of whom, P.W.1 was merely suggested that entire incident had in fact taken place inside the house of the deceased. The suggestion was denied because the evidence was led to the effect that the firing by the accused assailants was started in the way when the two victims reached in front of the house on a motorcycle. Therefore, the place of the incident was, in fact also not seriously disputed and the learned Sessions Judge has also rightly held so in regard to this aspect of the case. 14- Having regard to the above aspect of the matter and the undisputed fact that P.W.1, informant Gurudev Singh and his mother P.W.3, Smt. Preetam Kaur were also occupying the same house in village Kela Banwari with the two victims and others, they are the most probable and natural witnesses of the occurrence. they have stated with one voice that when they came out of the house and were in the way to go to Bazpur town, the two victims Gurudeep Singh and Kulwant Singh reached there on a motorcycle on their return from village Banna Kheda and at that point of time, that is, about 11.45 A.M. the four armed assailants started firing on the victims as a result of which Kulwant Singh fell then and there on the ground and died instantaneously due to fire arm injuries, whereas victim Gurdeep Singh ran from there and entered his house to be followed by these assailants and was not spared there also and as a result of which Gurdeep Singh also breathed his last on his bed inside the house as a result of the fire arm injuries. They also gave out that accused Smt. Veero Kaur was giving exhortation to the assailants to kill these victims and further that in the incident fire arm injuries was also sustained by one of them, viz. eye witness Smt. Preetam Kaur. They further testified that in the incident accused Jasvinder Singh wielded a double barrel gun whereas the other three accused viz. Dilbagh Singh, Tejendra and Satnam wielded their rifles in causing fatal injuries to the two victims. P.W.1 Gurudev Singh also proved written F.I.R., Ext. Ka.1 prepared by him and delivered at the police station. His motorcycle U.P.04-B-9904 was attached vide memo, Ext. Ka.2. As stated above, the names of accused Tejendra and Satnam were not mentioned in the F.I.R. as such and according to these witnesses their identity was fixed later on when the eye witness Sukhdev Singh (P.W.4) affirmed their participation. 15- Learned Senior Advocate on behalf of the accused (appellants) submitted that the conviction of the accused is founded solely on the evidence of these two witnesses and since their evidence was disbelieved in regard to the participation of the other two namely Tejendra and Satnam, it was not proper to accept their evidence so far as the role assigned to the accused is concerned and in the totality of the circumstances of the case the evidence of the witnesses deserve to be disbelieved in to-to. For the reasons assigned by the learned Sessions Judge Tejendra and Satnam, not named in the F.I.R., were acquitted although finding was recorded to the effect that two named and two unnamed actual assailants and accused Smt. Veero Kaur formed an unlawful assembly with the common object of committing the murders of the victims and to make an attempt to commit the murder of another victim in the incident and therefore, merely because of acquittal of the two unnamed assailants of the F.I.R. the otherwise reliable evidence of these witnesses can not be said to be unacceptable so far as the role assigned to the accused (appellants) is concerned. The reason is that it is well settled the principle of ‘Falsus in Uno Falsus in Omnibus’ is not applicable in India and it is only a rule of caution. Even if a portion of the evidence of a witness is not accepted, if the remaining part of the evidence inspires confidence and is sufficient to prove the guilt of the accused, conviction can be based thereon on the basis of the evidence. Court has to separate chaff from grain to find in each case as to what extent the evidence is acceptable and if separation can be done, the evidence has to be accepted in regard to the participation of a particular accused in the crime. In the face of the facts of the case the reported decision of the Apex Court in the case of Prem Singh Versus State of Punjab; A.I.R. 1977 Supreme Court 673 pressed into service by the learned counsel for the accused can not safely be applied here to reject the evidence of P.W.1 and P.W.3. The facts of the reported case were that the evidence of two eye witnesses was accepted in regard to participation of one assailant whereas the evidence was disbelieved in regard to other four who were acquitted by the trial court and the finding was affirmed by the High Court. The convicted accused preferred appeal before the Apex Court and on the facts of the case the benefit of doubt was extended to the appellant and his conviction was set-aside on the ground that the evidence of the two eye witnesses was in total conflict with the medical evidence in the sense that although they claimed that spear injuries were caused to two victims by those other four assailants but the medical evidence revealed that there were no such injuries. The facts of the case were thus at variance and further on the principle referred above the evidence of the eye witnesses P.W.1 and P.W.3 can not be disbelieved on the ground that their evidence about the identity of the other two assailants was not accepted. 16- Here we find it advantageous to refer to the two decisions of the Apex Court in the matter of Vidya Devi Vs. State of Haryana; (2004) 9 S.C.C. 476 and Sardar Khan Vs. State of Karnataka; (2004) 2 S.C.C. 442, where Hon’be Judges of the Apex Court have reiterated that acquittal of some of the accused by itself would not entitled the convicted accused to acquittal even