RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No.1159 of 2001 (Old No.1413 of 1996) 1. Amar Singh S/o Nathi Singh 2. Smt. Mandari Devi W/o Amar Singh 3. Ramesh Chand Singh S/o Amar Singh, All R/o Village Pipal Patti, P.S. Tehri, Distt. Tehri Garhwal ………….Appellants Versus The State …….. Respondent Dated: December 21, 2009 Sri Lokendra Dobhal, the learned counsel for the appellant Sri Amit Bhatt, the learned Addl. GA for the State/respondent Coram: Hon’ble TARUN AGARWALA, J. Hon’ble DHARAM VEER, J. PER HON’BLE DHARAM VEER, J. This appeal, preferred by the appellants, under Section 374(2) of Code of Criminal Procedure 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 16.08.1996 passed by the Sessions Judge, Tehri Garhwal in Sessions Trial No.27 of 1993, State Vs. Ramesh Chandra Singh & others, whereby the learned Sessions Judge has convicted the appellant-accused Ramesh Chandra Singh for the offence punishable under Section 302 of the Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced him to imprisonment 2 for life. The appellants-accused Amar Singh and Smt. Mandari Devi were also convicted under Section 302/34 IPC and each of them was also sentenced to life imprisonment. 2. We have heard the learned counsel for the parties and perused the entire material on record. 3. In brief, the prosecution case is that P.W.1 Bakhtawar Singh lodged a report stating therein that on 23.5.1993, his elder brother Bachan Singh was irrigating his rice crop. Appellants-accused Amar Singh, his elder son Ramesh Chandra Singh and wife Mandari Devi were also irrigating their field. Appellant- accused Ramesh Chandra Singh, asked in an abusive language, as to who had stopped the flow of water. Thereupon, Bachan Singh said that the volume of water flowing into his field is less than the flow of water going in the field of the appellant-accused Ramesh Chandra Singh which is 4 times more. Thereupon, the appellant /accused Ramesh Chandra Singh started stopping the flow of water into the field of Bachan Singh on which Bachan Singh politely objected to it. After that the appellants-accused Amar Singh and Smt. Mandari Devi, the parents of the appellant-accused Ramesh Chandra Singh, exhorted the appellant-accused Ramesh Chandra Singh to kill Bachan Singh. On hearing the alarm and altercation, the complainant Bakhtawar Singh rushed towards his brother Bachan Singh, who was standing at a distance of about 3-4 Nalis uphill. However in the meantime, the appellant-accused 3 Ramesh Chandra gave several knife blows to Bachan Singh with the intention to kill him. On sustaining the injuries of knife, Bachan Singh fell down. The complainant, Bakhtawar Singh, thereafter raised an alarm on hearing which Jaivir Singh (PW3) and other villagers came there and saw the aforesaid incident. This incident had happened at about 2:15 PM. The complainant, Bakhtawar Singh, tried to apprehend the appellants-accused, however due to fear, he did not chase them. After that the complainant came to the rescue of his brother Bachan Singh and tried to save his life and took him towards his house, but on the way, Bachan Singh succumbed to his injuries. The complainant after that left the other family members near the dead body of Bachan Singh and scribed the report and handed it over at Police Outpost Bhaitogi Sera on 23.5.1993 at 3:00 PM, that report is Ex.Ka-1. On the basis of report (Ex.Ka-1), Constable Daya Sindhu prepared the Chik FIR of the case, i.e. Ex.Ka-5. In the same process, he also made entry in the G.D., the copy of which is Ex.Ka-6. P.W.5 Inspector Bhim Singh was entrusted with the investigation of this case. He received telephonic message from the Police Outpost Bhaitogi Sera about the above-said incident and the said telephonic message was recorded by H.M. Pyare Lal in the G.D., the copy of which is Ex.Ka-7. S.I. G.C. Yadav prepared the inquest report of the dead body of Bachan Singh, i.e. Ex.Ka-4. Along with the inquest report, other necessary documents viz. the letter sent for conducting the post-mortem (Ex.Ka-8), sketch of dead body (Ex.Ka-9) and Police Form No.13 4 (Ex.Ka-10), were also been prepared. The autopsy on the dead body of Bachan Singh was conducted on 24.5.1993 at 10:00 AM by P.W.2 Dr. Lalit Kishor Gusain and after conducting the autopsy, he prepared the post-mortem report, i.e. Ex.Ka-2. The I.O. also got recovered the bloodstained knife from the appellant- accused Ramesh Chand which was used in the crime and for which Fard of recovery was prepared, i.e. Ex.Ka-3. The I.O. during the course of investigation, inspected the place of occurrence and prepared the site plan, i.e. Ex.Ka-11. The I.O. also took in his possession the plain as well as the blood stained clay from the place of occurrence and for which also, he prepared the Fard, i.e. Ex.Ka-12. The I.O. also recovered one pair of slipper (CHAPPAL) of the appellant-accused Ramesh Chandra from the place of occurrence and prepared the Fard, i.e. Ex.Ka-13. During the course of investigation, the I.O. recorded the statements of witnesses and on completion of investigation, he filed the charge sheet against the appellants-accused, i.e. Ex.Ka-14. It is pertinent to mention here that the I.O. had sent the clay recovered from the place of occurrence, the clothes of deceased Bachan Singh as well as the knife recovered from the appellant-accused, for the purpose of conducting the chemical examination. The report given by the Scientific Officer, Scientific Laboratory, Agra is on record which is Ex.Ka-15 and in the said report it was stated that the clay was completely blood stained while on the clothes of deceased, blood spots were found. It was further stated that on the items No.1 to 4 viz. the 5 clay of the place of occurrence as well as the clothes of deceased, human blood was found while on the item No.5, i.e. the knife, disintegrated blood spots were found. 4. Learned Chief Judicial Magistrate, Tehri appears to have committed the case to the court of Sessions on 24.09.1993 after giving necessary copies to the appellants/accused as required under Section 207 Cr.P.C. 5. Learned Sessions Judge, Tehri Garhwal has framed the charge against the appellant/accused Ramesh Chandra on 18.1.1994 under Section 302 IPC. The charge was read over and explained to appellant/ accused, who pleaded not guilty and claimed to be tried. Against the appellants-accused Amar Singh and Smt. Mandri Devi, the charge was also been framed on the same day u/s 302/34 IPC. The charge was also read over and explained to them who also pleaded not guilty and claimed to be tried. 6. To prove its case, the prosecution has examined P.W.1 Bakhtawar Singh, complainant, P.W.2 Dr. Lalit Kishore Gusain, who conducted the post- mortem, P.W.3 Jaiveer Singh, eyewitness, P.W.4 Puran Singh, who proved the discovery of knife and P.W.5 Inspector Bhim Singh, I.O. of the case. 7. After that the statements of the appellants/ accused were recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to each of them in 6 question form, who denied the allegations made against each of them and stated that they have been falsely implicated. In oral evidence, they have examined two witnesses, namely, Virendra Prasad Uniyal (D.W.1) and Surendra Singh (D.W.2). In documentary evidence, they produced the extract of Khatauni for 1386 to 1396 Fasli (Ex.Kha-1) and extract of Khatauni for 1397 to 1402 Fasli (Ex.Kha-2) in defence. 8. After hearing the learned counsel for the parties and appreciating the entire material available on record, the learned Sessions Judge, Tehri Garhwal vide judgment and order dated 16.08.1996 has convicted and sentenced the appellants/accused as discussed above. Feeling aggrieved by the aforesaid judgment and order, the accused/appellants have preferred the present appeal. 9. Before any further discussion, it is pertinent to mention the ante-mortem injuries recorded in the post-mortem report (Ex.Ka-2) of Bachan Singh, whose post-mortem was conducted on 24.5.1993 at 10:00 A.M. by PW2 Dr. L.K. Gusain, which are as under: - 1. “Incised wound spindle shaped on outer part of nose, obliquely placed 4 cm x 1 cm x nasal cavity deep. Septum (nasal) is cut 1 cm. Edge and margins clean cut. Edges everted, more deeply cut on right lateral aspect of nose. 2. Incised wound on left cheek, just below the lower border of left eye about transverse. 5 cm 7 x 1 cm x bone deep, spindle shaped, edges clean cut and everted. More deeply cut at lateral end. 3. Incised wound on upper part of front of right side of chest, 3 cm below the medial end of right clavicle, spindle shaped, 2 cm x 1 cm x muscle deep. Edges clean cut and everted, oblique. More deeply cut at upper and lateral end of wound. 4. Punctured (penetrating) wound on upper part of front of right side of chest, 3 cm below the injury no.3. Obliquely placed, 3 cm x 1.5 cm x 8 cm deep and directed medially, posteriorily and lower down. Edges clean cut and inverted, spindle shaped. 5. Incised wound on mid-part of sternum (front of chest) obliquely placed, 2 cm x 1 cm x bone deep, spindle shaped. Edges clean cut and everted. More deeply cut at upper and lateral end. 6. Punctured (penetrating) wound on right lateral aspect of chest, 10.5 cm below and lateral to right nipple, spindle shaped, horizontally placed, 2 cm x 1 cm x 4.5 cm deep. Edges clean cut and inverted and directed horizontally. 7. Punctured (perforating) wound, middle part of nape of neck, obliquely placed, 1.5 cm x 1 cm x 8 3 cm deep, spindle shaped, edges clean cut and inverted and directed posteriorly and anteriorly. 8. Incised wound on upper part of back of right side of chest, 3 cm below the injury No.(7), obliquely placed, 1.5 cm x 1 cm x muscle deep, spindle shaped, edges clean cut and everted, more deeply cut at lateral end. 9. Incised wound on back of upper part of right side of chest over rightly shoulder blade, spindle shaped, 0.5 cm x 0.2 cm x muscle deep. Edges clean cut and everted, obliquely placed, more deeply cut at upper and lateral end. 10. Incised wound on middle part of the back over vertebral column, vertically placed, spindle shaped, 12 cm below and medial to inferior angle of left scapula 2 cm x 1 cm x bone deep. Edges clean cut and everted. More deeply cut at upper end of wound. Cause of death is shock due to hemorrhage as a result of ante-mortem injury nos.4 and 6 caused by sharp cutting edged weapon.” 10. To prove the post-mortem report, the prosecution has examined P.W.2 Dr. Lalit Kishore Gusain who has proved the above-said post mortem report Ex.Ka-2 of Bachan Singh prepared by him whose post-mortem was conducted on 24.5.1993 at 10:00 A.M. He further stated that, in his opinion, cause of 9 death is shock due to hemorrhage as a result of ante- mortem injury nos.4 and 6 caused by sharp cutting edged weapon. These injuries could possibly be caused on 23.5.1993 in between 2-2:15 PM. 11. To further prove its case, the prosecution has examined P.W.1 Bakhtawar Singh, complainant and eyewitness of the case, who stated that on 23.5.1993 at about 2:15 PM, he was in his house when he heard some noise from the field of Bachan Singh. He stood on the roof and saw his brother Bachan Singh as well as the appellants-accused Amar Singh, Madri Devi and Ramesh Chandra Singh. Appellant-accused Ramesh Chandra had asked that who has stopped the flow of water of his field. Meanwhile, his brother Bachan Singh replied that the volume of the water flowing in his (Ramesh Chand’s) field is 4 times more than the water flowing into his own field and in his field, volume of flowing water is less. Thereupon Ramesh Chandra started stopping flowing of water. But Bachan Singh politely requested him not to do so. Thereafter, the appellants-accused Amar Singh and Madri Devi exhorted their son Ramesh to kill Bachan Singh. On hearing this, he rushed towards his brother. After running for 15-20 paces, he saw that the appellant- accused Ramesh Chandra was blowing knife continuously on Bachan Singh and about 10-12 blows of knife were given. As soon as he reached near the field of Bachan Singh, the appellant-accused Madri Devi directed his son Ramesh to run from there as he (Bakhtawar Singh) was approcaching the place of 10 occurrence. Soon thereafter, Amar Singh and later Madri Devi and at last Ramesh Chandra ran away from there. He chased them for about 2-4 paces, however he did not chase them further due to fear. After that he came to his brother who was fallen down after sustaining the injuries. Thereafter he took his brother from there for his house for medical treatment, but after going a little farther, his brother Bachan Singh succumbed to his injuries. After leaving dead body of his brother under the supervision of his family members, he came to lodge the report, that report is Ex.Ka-1. After handing over of the report, the I.O. along with a constable also came with him. After conducting the inquest, the dead body was sent for conducting the post-mortem. This incident was witnessed by Smt. Kamla, Jaiveer Singh (PW3), Ranbir Singh and several other persons. He further stated that his brother was aged about 50-55 years and at the time of incident, he was tying the field ridge. This witness was cross-examined at length by the defence counsel but nothing has come out in his statement which may create any doubt in his statement. The statement of this witness is reliable and believable. 12. P.W.3 Jaivir Singh has stated that on 23.5.1993 at 2:15 PM, he was cultivating the field of Amar Singh S/o Jethu Singh when he heard some noise from the field of Bachan Singh. In the field of Bachan Singh, appellants-accused Madri Devi, Ramesh Chandra and Amar Singh as well as Bachan Singh were there. The appellant-accused Madri Devi exhorted the 11 appellant-accused Ramesh Chandra Singh to kill Bachan Singh. On this, Ramesh Chandra Singh gave 10 blows of knife to Bachan Singh due to which Bachan Singh fell down in the field itself. Thereafter, the appellants-accused had run away from there. By the time he reached the place of occurrence, Bakhtawar Singh, Ranvir Singh and Kamla Devi had come. After that Bakhtawar Singh lifted his brother Bachan Singh and after going 5-6 steps farther towards the house, Bachan Singh succumbed to his injuries. This witness was also cross-examined at length by the defence counsel but nothing has come out in his statement which may create any doubt in his statement. The statement of this witness is also reliable and believable. 13. P.W.4 Puran Singh stated that on 26.5.1993 at about 2:00 PM, the police persons had procured him for recovery of knife which was to be made by the appellant-accused Ramesh Chand and which was used by him in committing the aforesaid crime. Thereafter, from the shrubs, the appellant-accused Ramesh Chand got recovered the bloodstained knife, which was marked as Ex.1. The I.O. also prepared Fard of recovery of knife, i.e. Ex.Ka-3. He also signed on that Fard. He was appointed as a Panch for conducting the inquest and he also signed on the inquest report, i.e. Ex.Ka-4. 14. P.W.5 Inspector Bhim Singh stated that the investigation of this case was entrusted to him. On the basis of the written report Ex.Ka-1, Constable Daya Sandhu prepared Chik FIR of the case, i.e. Ex.Ka-5. In 12 the same process, entry was also made in the G.D., copy of which is Ex.Ka-6. Before his leaving for Police Chowki Bhagirathi Puram, a telephonic message was received from the Police Outpost Bhaitogi Sera and that was recorded by H.M. Pyare Lal in the G.D., i.e. Ex.Ka.7. He also got prepared the inquest report through S.I. G.S. Yadav, i.e. Ex.Ka-4. Other necessary documents viz. letter to CMO, sketch of dead body and Challan Lal were also got prepared by him through S.I. G.S. Yadav, those documents are Ex.Ka-8, Ka-9 and Ka-10 respectively. On the pointing out of complainant Bakhtawar Singh, he prepared the site plan of the place of occurrence, i.e. Ex.Ka-11. He also got prepared the Fard through S.I. G.S. Yadav for recovering the plain as well as bloodstained clay from the place of occurrence, i.e. Ex.Ka-12. He also got prepared the Fard for recovering a pair of slipper (CHAPPAL) of the appellant- accused Ramesh from the place of occurrence, i.e. Ex.Ka-13. Thereafter, on the pointing out of the appellant-accused, the knife, which was used in the aforesaid crime, was also got recovered from the bushes and for which also, the Fard was prepared, i.e. Ex.Ka-3 and that knife was marked as Ex.1. During the course of investigation, he recorded the statements of witnesses and on completing the investigation, he filed the charge sheet against the appellants-accused, i.e. Ex.Ka-14. 15. After that the statements of the appellants/ accused were recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to each of them in 13 question form, who denied the allegations made against each of them and stated that they have been falsely implicated. In oral evidence, they have examined two witnesses, namely, Virendra Prasad Uniyal (D.W.1) and Surendra Singh (D.W.2). In documentary evidence, they produced the extract of Khatauni for 1386 to 1396 Fasli (Ex.Kha-1) and extract of Khatauni for 1397 to 1402 Fasli (Ex.Kha-2) in defence. 16. D.W.1 Virendra Prasad Uniyal is an Assistant Clerk in the office of THDC and was working under Sri Sumer Singh. He produced the casual leave application of the appellant-accused Amar Singh dated 21.5.1993, who was posted as Chowkidar and had applied for grant of Casual Leave for 22.5.1993. He also proved the report of Jagdish Prasad, Head Clerk on the said casual leave application. He also proved the signature of Sumer Singh on the said application. 17. D.W.2 Surendra Singh has stated that the certificate (paper no.26B) is in his handwriting and the said paper was got scribed by him by Jaivir Singh and he had shown his inability to write due to injury in his finger. This paper was written by him on the dictation of Jaivir Singh and this paper was also signed by Jaivir Singh. He further stated that this paper was written about one year before by him at his house. He also stated that Jaivir Singh also asked him to hand over this written paper to the appellant- accused Amar Singh and as such this document was 14 handed over by him to the younger son of the appellant-accused Amar Singh. 18. Sri Lokendra Dobhal, the learned counsel for the appellant-accused argued that the prosecution could not prove its case against the appellant-accused Ram Chandra Singh beyond reasonable doubt for the offence punishable u/s 302 IPC. We do not find any force in this argument. It is pertinent to mention at the outset that it is the case of direct evidence. The prosecution, in order to prove its case, has examined P.W.3 Jaiveer Singh, eyewitness of the case, who stated that on 23.5.1993 at 2:15 PM, he was cultivating the field of Amar Singh S/o Jethu Singh, when he heard some noise from the field of Bachan Singh. In the field of Bachan Singh, appellants-accused Madri Devi, Ramesh Chandra and Amar Singh as well as Bachan Singh were there. The appellant-accused Madri Devi exhorted the appellant-accused Ramesh Chandra Singh to kill Bachan Singh. On this, the appellant-accused Ramesh Chandra Singh gave as many as 10 blows of knife to Bachan Singh due to which Bachan Singh fell down in the field itself. Thereafter, the appellants- accused had run away from there. By the time he reached on the place of occurrence, Bakhtawar Singh, Ranvir Singh and Kamla Devi had already come. After that Bakhtawar Singh lifted his brother Bachan Singh and after going 5-6 steps towards the house, Bachan Singh succumbed to his injuries. The evidence of P.W.3 Jaiveer Singh is natural, reliable and inspires implicit confidence. Even in his detailed cross- 15 examination, nothing could be elicited which could shake his testimony. The evidence of P.W.3 Jaiveer Singh also gets full corroboration from the evidence of P.W.1 Bakhtwar Singh, who is the complainant as well as the eyewitness of the case. Thus, P.W.1 Bakhtawar Singh and P.W.3 Jaivir Singh have clearly deposed in their evidence that the appellant-accused Ramesh Chandra Singh gave as many as 10 blows of knife to Bachan Singh as a result of which he succumbed to his injuries. The oral evidence of these two witnesses also gets full corroboration with the medical evidence. A perusal of the ante-mortem injuries recorded in the post-mortem report Ex.Ka-2 also transpires that there were as many as 10 ante- mortem injuries were found on the dead body of Bachan Singh. P.W.3 Dr. L.K. Gosain has clearly deposed that those injuries have been sustained by the deceased at about 2-2:15 PM on 23.5.1993. The cause of death was also been opined as shock due to hemorrhage as a result of ante-mortem injury no.4 and no.6, which were caused by sharp cutting edged weapon like knife. Besides the above, in the chemical report given by Scientific Officer, Agra it has been opined that on items no.1 to 4 viz. clay of place of occurrence as well as the clothes of deceased, human blood was found while on the item no.5 i.e. knife, disintegrated blood spots were found. Thus, the medical evidence also fully corroborates the oral evidence. Even the evidence led by the defence is also not at all helpful for them in view of the aforesaid facts and circumstances of the case and particularly that it is 16 a case of direct evidence and not of circumstantial evidence. Therefore, in view of the above-said discussion, the offence punishable u/s 302 IPC is fully proved against the appellant-accused Ramesh Chandra Singh. 19. It was next argued by learned counsel for the appellants-accused that the instant case falls u/s 304 (Part II) IPC i.e. culpable homicide not amounting to murder and not u/s 302 IPC. We do not find ourselves to be in agreement with this argument. As per Exception 4 provided for culpable homicide, culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. Now, after a thorough perusal of the evidence on record, the motive for committing the aforesaid crime is proved. The dispute in question had arisen due to flowing of water. The appellant-accused Ramesh Chandra Singh apprehended that the flow of water into his field has been stopped by the deceased Bachan Singh and, therefore, the appellant-accused Ramesh Chandra Singh firstly used abusive language and subsequently Bachan Singh was assaulted by the appellant-accused Ramesh Chandra Singh which resulted into his death. It is proved as per the above- said evidence that the appellant-accused Ramesh Chandra Singh had caused injuries to deceased Bachan Singh with the intention of causing his death. Even the accused Ramesh Chandra Singh gave as many as 10 17 blows of knife to Bachan Singh as a result of which he succumbed to his injuries. Now for the sake of argument if it is said that it was a case of premeditation in a sudden fight in the heat of passion upon a sudden quarrel, then also, by no stretch of imagination, it can be said in any way that in the heat of sudden fight as well as in the heat of passion, as many as 10 injuries by a sharp edged weapon viz. knife, would be caused. The appellant-accused in this case has acted in actuality a cruel manner while causing as much of injuries to the deceased. In other words, the injuries were caused with the only and sole intention to kill the