IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Jail Appeal No. 63/2005 Balam Singh @ Pappu … Appellant. Versus State of Uttaranchal … Respondent. Mr. Paresh Tripathi, learned Amicus Curiae for the appellant Mr. S.S. Adhikari, learned A.G.A. for the State. Coram: Hon’ble B.C. Kandpal, J. Hon’ble Nirmal Yadav, J. [Per: Hon’ble B.C. Kandpal, J.] This Criminal Jail Appeal arises out against the judgment and order dated 8-1-2004, passed by Sessions Judge, Almora, in S.T.No. 4 of 2001, State Vs. Balam Singh @ Pappu and S.T. No. 5 of 2001, State Vs. Balam Singh @ Pappu, whereby the accused Balam Singh @ Pappu was convicted U/Ss 302, 201 I.P.C. and Section 25/27 Arms Act and he was sentenced to undergo life imprisonment U/S 302 I.P.C. and two years R.I. U/S 201 I.P.C. and three years R.I. U/S 25/27 Arms Act. 2- Brief facts of the prosecution case are that the accused Balam Singh @ Pappu and the deceased Puran Chandra were shopkeepers. Their shops are situated within Patwari Circle Tarikhet, Tehsil Ranikhet. Accused Balam Singh, on account of some dues fired upon deceased Puran Chandra from country made pistol, at the door step of his own shop on 30-10-2000 between 8 –8.30 P.M. The 2 occurrence was witnessed by Mohan Ram, Shyam Singh and few others of the nearby locality. The witnesses left the place of occurrence in order to inform the other persons. Mohan Ram etc. informed the brother of deceased Shankar Lal and when they returned, they found the dead body as well as the accused missing from the spot. Thereafter they started searching the dead body and in the next morning at about 5.30 A.M. the dead body of Puran Chandra was found lying on the kuchcha road near Prem Vidyalaya Tarikhet. Shankar Lal, brother of the deceased, prepared written report, Ext. Ka.2 and handed it over to Patwari of the Circle. On the basis of written report, Patwari prepared chick F.I.R. Ext. Ka.4, registered a case U/S 302 I.P.C. against the accused in crime no. 2/2000, recorded the statement of Shankar Lal and appointed panchas and prepared inquest report Ext. Ka.1. He sealed the dead body, prepared the necessary paper Ext. Ka.5 and Ka.6 and sent the dead body for post mortem. The I.O. also took into possession the blood-stained clothes of the deceased and prepared memo Ext. Ka.7. He also prepared site- plan of the place of recovery of dead body, Ext. Ka.11. He also took into possession the blood- stained and sample earth from that place vide memo Ext. Ka.8. He then went at the place of occurrence and seized blood-stained and plain earth there also and prepared recovery memo Ext. Ka.9. He also prepared site plan of the place of occurrence, Ext. Ka.10. Thereafter further investigation was handed over to another Patwari 3 Sri Devendra Singh Adhikari, but he has done nothing. 3- The autopsy on the dead body was conducted by Dr. Harish Chandra Sharma, on 31.10.2000, at 1.00 P.M. in Civil Hospital, Ranikhet and found the following ante-mortem injuries on his person- 1. Firearm wound rounded (wound of entry), measuring 2.5cm x2cm x cavity deep. Margins inverted, colon of abrasion present. Blackening present around the wound. Margin irregular. Situated 5 cm above and medial to right nipple, 6 cm below medial lend of right clavicle. 2. Abraded contusion over left side of forehead measuring 3 cm x 2cm, just above left eye- brow. 3. Lacerated wound over root of nose in left side measuring 1.5cm x 0.5cm x skin deep. 4. Lacerated wound over lower eye-lid of left eye measuring 2cm x 0.5cm x skin deep. 5. Abraded contusion over left side of face measuring 3.5cm x2cm, just below injury no.4. On internal examination the doctor found IVth rib on right side fractured on the joint of rib, corresponding to injury no.1 and right pleura was found lacerated below injury no.1. He also found right thoracic cavity containing clotted blood and two pellets. Right lung was found lacerated below injury No.1. There were 4 pellets present in right lung. Pericardium was 4 perforated. Heart was perforated at places and 3 pellets were present there. Both chambers of heart were empty. In the cavity of stomach, there was clotted blood. 12 pellets and 3 pieces of wades were found there. In the stomach, semi digested food material was present. Spleen was found lacerated at upper surface of right lobe and 20 pellets were found there. The doctor further found that right kidney was lacerated with presence of 7 pellets. In the opinion of the doctor the death of the deceased was caused due to shock and haemorrhage as a result of injury No.1 and the death might have occurred on 30.10.2000 at about 7 P.M. The doctor prepared autopsy report Ext. Ka.12. 4- On 7.11.2000 at about 4.45 P.M. on the information of some informer accused Balam Singh was arrested from the jungle of Tarikhet by Sri J.C. Pathak, S.O. Ranikhet. The accused was in possession of country made pistol and the S.O. recovered country made pistol, Ext. 1 with two live cartridges, Ext. 2 and Ex.3, in presence of witnesses Mohd. Kasim and other police personnel and recovery memo Ext. Ka.1 was prepared by the S.O. On the basis of recovery memo Ext. Ka.1, chick F.I.R. Ext. Ka.2 was prepared by Head Moharir Girish Chandra and a case crime No. 357/2000 U/S 25 Arms Act was registered against the accused. On interrogation the accused confessed his guilt and volunteered to get the empty cartridge recovered which he had used in committing the 5 murder of the deceased and thereafter concealed the same. The accused led the S.O. and public witnesses Shyam Singh and Mohd. Kasim to the side of Kuchcha road near Prem Vidyalaya and dug out a polythene bag containing an empty cartridge and handed it over to the S.O. Sri J.C. Pathak. The S.O. Sealed the cartridge Ext.5 and prepared its memo, Ext. Ka.3. 5- The investigation of the crime No. 357/2000 U/S 25 Arms Act was entrusted to S.I. Omveer Singh. He prepared the site plan Ext.Ka.3, recorded the statement of witnesses, obtained sanction of District Magistrate Almora, Ext. Ka.4 and ultimately submitted charge sheet, Ext. Ka.5. 6- On the other hand the investigation of case crime No. 2/2000 was withdrawn from Patwari Devendra Singh Adhikari and transferred to regular police under the order of District Magistrate and then the investigation of this case was entrusted to Sri J.C. Pathak, S.O. Ranikhet. He sent empty cartridge, recovered country made pistol, recovered pellets from the body for examination of Forensic Science Laboratory, Agra and obtained its report Ext. Ka.13. He recorded statements of few witnesses and after completion of investigation submitted charge sheet, Ext. Ka. 15 against the accused. 7- The Chief Judicial Magistrate Almora vide his order dated 1.2.2001 committed the case to the court of Sessions for trial. The learned Magistrate also sent the file case under Arms Act to the court 6 of Sessions as the same was related to the offence of murder. 8- The learned Sessions Judge framed charges U/Ss 302/201 I.P.C., and Section 3(2)(v) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989, in S.T.No. 4/2001. Accused was charged U/S 25/27 Arms Act in S.T. No. 5/2001. He pleaded not guilty and claimed to be tried. 9- In S.T. No. 4 of 2001, the prosecution has examined eye witness Mohan Ram as P.W.1, another eyewitness Shyam Singh as P.W.2, Hayat Singh Rautela, as P.W.3, a witness of inquest, Shankar Lal, complainant as P.W.4, Bachi Singh Bora first I.O., as P.W.5, Dr. Harish Chandra Sharma, as P.W.6 and Sri J.C. Pathak, second I.O. as P.W.7. 10- In S.T. No. 5/2001, U/S 25/27 Arms Act, the prosecution has produced witness of recovery Kashim as P.W.1, Sri J.C. Pathak, as P.W.2 and Sri Omveer Singh Rawat, S.I. as P.W.3. 11- In both the Sessions Trials the accused in his statement U/S 313 Cr.P.C. denied the prosecution case and pleaded that he has been falsely implicated in the case, but no evidence in defence has been produced. 12- The learned Sessions Judge, after hearing learned counsel for parties and considering the 7 entire evidence on record, found the accused guilty U/S 302, 201 I.P.C. and 25/27 Arms Act by common judgment and accordingly sentenced him to undergo life imprisonment U/S 302 I.P.C.; two years R.I. U/S 201 I.P.C. and three years R.I. U/S 25/27 Arms Act. 13- Feeling aggrieved the accused Balam Singh has preferred this appeal from jail. 14- We have heard learned counsel for parties and perused the material available on record. 15- Learned Amicus Curiae appearing on behalf of the appellant has submitted that there are material contradictions in the statements of the witnesses, which adversely affect the veracity of the prosecution case. He also submitted that the prosecution has not come forward with a strong motive for commission of crime by the accused/appellant. 16- We do not find any force in the above submissions. So far as the motive for committing the murder of deceased Puran Chandra is concerned, the prosecution has alleged the motive against the accused that there was a dispute with respect to certain dues between the deceased and the accused and this dispute led to murder of the deceased. It has come in evidence that the accused as well as the deceased were shopkeepers, therefore, the prosecution version that there was enmity 8 between them with respect to certain dues, cannot be said to unreasonable. However, where there is eyewitness account, motive does not play any important role and it becomes academic. Hence the submission of learned Amicus Curiae in respect of motive has no substance. 17- The prosecution has examined P.W.1, Mohan Ram and P.W.2, Shyam Singh as actual witnesses of firing. According to P.W.1, on 30.10.2000 between 7.30 and 8 p.m. he had gone to fetch water from water tank and when he was filling his bucket, he saw the accused and the deceased exchanging words and then the accused pulled out country made pistol and fired upon the deceased and the deceased fell down. He further deposed that there was electric light and he witnessed the occurrence from a distance of 10 feet. He also deposed that Shyam Singh also witnessed the occurrence. Then he left for his house and informed the parents of the deceased and then he along with family members of the deceased and Shankar Lal, Vishambhar Dutt, Lalit Mohan, Ramesh Chandra and Hayat Singh returned to the place of murder, but they did not the dead body there and the accused has also absconded from the spot. 18- P.W.2, Shyam Singh, is also eyewitness of firing made by accused from country made pistol upon the deceased. He has fully supported the deposition of P.W.1, deposing that on 30-10-2000 at about 8.00 p.m. he was going towards block Tarikhet. The shop of Balam Singh accused is 9 situate there and he saw the accused and deceased standing there and then he witnessed the accused firing upon the deceased by a katta (country made pistol). He further deposed that deceased fell down, his breathes were going on and then he died. This witness has stated that Mohan Ram was nearby the water tank and he also saw the occurrence and he himself left the place to inform other people and when he returned back along with Vishambhar Datt Bhagat, Lalit Pande, Dhyan Singh Negi, Ravindra Singh etc, he found the dead body missing from the place of occurrence. Then they started search and, in the next morning at about 5 a.m. the dead body was seen lying near Prem Vidyalaya. In his cross- examination he has deposed he had seen the occurrence from a distance of 10 feet. He also deposed that at the time of occurrence accused and deceased were involved in conversations and they were exchanging hot words. He further deposed that he himself did not intervene in the matter. He also deposed that there are several houses nearby the place of occurrence and those houses were lit up, but even after noise of fire none came out. This witness further deposed that an electric pole was there at a distance of 3-4 feet from the place of murder and electric bulb was there on the pole. This witness has been cross-examined at length but nothing immaterial has come in light which may render his testimony as unreliable. No reason has been assigned to these witnesses as to why they would falsely depose against the accused in such a heinous crime. 10 19- Therefore, we find that presence of eyewitnesses P.W.1, Mohan Ram and P.W.2, Shyam Singh can not be doubted at the place of occurrence. Both these witnesses are natural witnesses. They have fully supported each other on material points and we do not find any contradictions in their testimony on material points. 20- Learned Amicus Curiae also submitted that the prosecution has not established the source of light at the place of actual incident. According to him in the site-plan Ext. Ka.10, the I.O. has not shown electric pole nearby spot, hence the statements of P.W.1, Mohan Ram and P.W.2, Shyam Singh pertaining to being an electric pole there is an afterthought. 21- This submission has also no force. It has come in the statements of P.W.1, Mohan Ram and P.W.2, Shyam Singh that the electric light was emitting at the spot from the electric bulb of the nearby houses. Both the witnesses have specifically deposed that there was an electric pole also and if the I.O. has not shown the same in the site plan, then this lapse on the part of the I.O. does not affect the authenticity of the prosecution case. However, the I.O. has shown in the site plan, the houses of Bhuwan Chandra Joshi, Mohan Singh, Lacham Singh Rawat, and the shops of Mahipal Singh Rawat, Uttam Singh Rawat, Harish Chandra Pandey etc. and presence of these houses/shops at the spot, makes it quite clear that there was sufficient 11 source of light at the spot and the witnesses had full opportunity to witness the occurrence. 22- Prosecution case also finds support from the recovery of country made pistol and the empty cartridge at the instance of the accused. According to prosecution on 7.11.2000, accused was arrested with country made pistol etc. P.W.1, Mohd. Kashim examined in the case U/S 25/27 Arms Act, has proved the recovery of country made pistol along with two live cartridges from the possession of the accused. He has deposed that on 7.11.2000 he was returning from Tarikhet after depositing electric bill and when he reached near upper road, he saw a police vehicle parked. He was asked to accompany police party as a person with country made pistol was likely to pass that way. According to this witness, in his presence, S.O. Ranikhet Sri J.C. Pathak got recovered a country made pistol along with two live cartridges from the possession of the accused. He has admitted that the recovery took place in his presence and he had signed the Fard. This witness further supported the recovery of empty cartridge at the instance of accused. The eyewitness P.W.2, Shyam Singh is also the witness of recovery of empty cartridges. He has deposed that on 7.11.2000 at the instance of accused an empty cartridge was recovered and he had signed the recovery memo prepared by the S.O. This witness has also proved the recovery memo Ext. Ka.3. He also deposed that Kashim was also with him. Therefore, recovery of country made pistol along with two live cartridges and the empty 12 cartridge used by the accused in the commission of crime, were recovered from the accused in presence of public witnesses and the recovery of above articles cannot be doubted in any manner. 23- The F.I.R. of the incident has been lodged without any unreasonable delay and the prompt lodging of F.I.R. rules out any possibility of false implication and concoction. According to prosecution the incident is said to have taken place on 30-10-2000 in the night at about 8.00 p.m. Thereafter the witnesses started search of dead body and when in the morning the dead body of the deceased was found, then the F.I.R. was lodged at 7a.m. on 31.10.2000. Therefore, the F.I.R. is said to be prompt and genuine document. 23- Further the ocular version is fully corroborated by medical evidence. According to P.W.1, Mohan Ram and P.W.2, Shyam Singh the firing was done by the accused at a close range and the injury No.1 caused to the deceased is a firearm rounded wound of entry. Blackening was present around the wound. In the internal examination the doctor found a large number of pellets on various parts of the dead body. In this way the testimony of eyewitnesses examined in the case is fully corroborated by medical evidence. 25- From the discussion made above, we find ourselves in full agreement with the view taken by the learned Sessions Judge. We find that the prosecution has been able to establish its case that 13 the accused had enmity with the deceased in respect of some dues and due to this enmity the accused committed the murder of the deceased by firing country made pistol upon him and after committing the murder of the deceased he, in order to screen himself from legal punishment, he tried to disappear the material evidence, picked up the dead body from the spot and thrown it away on kuchcha road near Prem Vidyalaya. Therefore, the appeal lacks merit and is liable to be dismissed. 26- Accordingly the jail appeal is dismissed. The conviction and sentence awarded by the trial court U/Ss 302, 201 I.P.C. and 25/27 Arms Act, is hereby confirmed. (Nirmal Yadav, J.) (B.C. Kandpal, J.) ISB 21.05.2010