IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Government Appeal No. 1174 of 2001 (Old No. 303 of 1991) State of U.P. …..Appellant. Versus Rajendra Singh S/o Jagat Singh R/o 9/1 Indra Colony Naee Basti Chukhuwala P.S. Kotwari, District Dehradun. ………Accused/Respondent. Shri Harish Pujari, learned Additional Government Advocate for the State/appellant. Shri Bhuwanesh Joshi and Shri Vivek Shukla, learned counsel for accused/respondent. Coram: Hon’ble Prafulla C. Pant, J. Hon’ble Dharam Veer, J. Oral:-Hon’ble Prafulla C. Pant, J. This appeal, preferred under Section 378 (3) of Code of Criminal Procedure, 1973 (herein after referred as Cr.P.C.), is directed against the judgment and order dated 16.11.1990, passed by learned Additional Sessions Judge, Dehradun, in Sessions Trial No. 130 of 1988, whereby accused/respondent- Rajendra Singh, has been acquitted of the charge of offence punishable under Section 302 of Indian Penal Code, 1860 (herein after referred as I.P.C.). 2. Heard learned counsel for the parties and perused the lower court record. 3. Prosecution story in brief is that Kishan Singh Rana (deceased) had given his pantaloons and some other clothes to accused/respondent-Rajendra Singh for tailoring, who did not return the clothes for many days. On 25.07.1988, when Kishan Singh Rana went to the tailoring shop of Rajendra Singh they had an altercation over the issue. Kishan Singh Rana was a Peon with Bank of India, Branch Rajpur Road, Dehradun. Next day i.e. on 26.07.1988, at about 1:00 p.m., he was coming back from the bank to his house. Near the shop of accused, he stopped. Kishan Singh Rana (deceased) parked his motor cycle went in the shop of Rajendra Singh (accused/respondent). When he came out accused chased him and started striking with scissors on his hand. He gave one after other blows on the person of deceased, who received serious injurious and fell down. The incident was witnessed by Makhan Singh (P.W. 2), Smt. Deepa (P.W. 3), Laxman Singh and others. Accused Rajendra Singh ran away from the spot after committing murder of Kishan Singh. Makhan Singh (P.W. 2) took injured Kishan Singh to Doon hospital, where he was declared dead. Vijay Singh (P.W. 1), minor brother of the deceased lodged First Information Report with police station Kotwali, Dehradun. Check report (Ext. A-6) was prepared of the First Information Report by Head Constable Madan Singh (P.W. 9). The investigation was taken up by Naresh Pal Yadav (P.W. 11). It appears that the dead body was sealed and sent for post mortem examination. The post mortem examination was conducted by Dr. A. Nagaich (P.W. 8) on 27.07.1987, at 12:30 p.m., in Doon hospital who prepared autopsy report (Ext. A-5). In the autopsy report, he has mentioned as many as 16 ante mortem injuries (out of which 13 were stab wounds) on the dead body. The Medical Officer opined in his report that the deceased had died due to shock and haemorrhage as a result of ante mortem injuries. On the day of incident i.e. 26.07.1988, the police recovered blood stained soil and simple soil from the spot and prepared recovery memo (Ext. A-3). The witnesses were interrogated by Naresh Pal Yadav, Investigating Officer. During investigation, scissors with which accused attacked the deceased were recovered from the shop of the accused/respondent on 28.07.1988 and recovery memo (Ext. A-4) was prepared. The Investigating Officer also inspected the spot and prepared site plans (Ext. A-7 and Ext. A-8). After completion of investigation, charge sheet was filed against the accused Rajendra Singh, for his trial in respect of offence punishable under Section 302 I.P.C. 4. The Magistrate, after giving necessary copies to the accused, as required under Section 207 Cr.P.C., appears to have committed the case to the court of Sessions for trial. Learned Sessions Judge appears to have transferred the trial to the court of IInd Additional Sessions Judge. Said court on 29.11.1988, after hearing the parties, framed charge of offence punishable under Section 302 I.P.C. against the accused Rajendra Singh, who pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1 Vijay Singh (complainant), P.W. 2 Makhan Singh Rana (an eye-witness), P.W. 3 Smt. Deepa (eye witness and wife of deceased), P.W. 4 Umrao Singh (before whom blood stained soil and simple soil were taken by the police from the spot and recovery memo Ext. A-3 was prepared), P.W. 5 Kamal Singh Rawat (who is also witness of the same fact of recovery of blood stained soil and simple soil), P.W. 6 Puran Singh (in whose presence scissors used in the crime were recovered by the police and recovery memo Ext. A-4 was prepared), P.W. 7 Bhim Singh, (who is also the witness of said fact of recovery of scissors from the shop of the accused), P.W. 8 Dr. A. Nagaich (who conducted post mortem examination on the dead body of the deceased), P.W. 9 Head Constable Madan Singh (who prepared check report of the First Information Report), P.W. 10 Sub- Inspector Satpal Singh (who got prepared recovery memo Ext. A- 3), and P.W. 11 Station House Officer Naresh Pal Yadav (who investigated the crime and submitted the charge sheet). The oral and documentary evidence was put to the accused Rajendra Singh under Section 313 Cr.P.C., to which he alleged the same to be false. In defence, on behalf of the accused, D.W. 1 Balwant Singh Negi and D.W. 2 Ghanshyam Das, were got examined. After hearing the parties, the trial court found that the prosecution has not been successful in proving the charge of offence punishable under Section 302 I.P.C. against accused Rajendra Singh, as such, he directed him to be acquitted of the charge. Aggrieved by said judgment and order dated 16.11.1990, passed by Additional Sessions Judge, Dehradun in Sessions Trail No. 130 of 1988, this appeal was filed before Allahabad High Court on 15.02.1991. The Allahabad High Court granted leave to appeal on 15.07.1992 and admitted the appeal. The appeal is transferred to this Court under Section 35 of U.P. Reorganisation Act, 2000, for its disposal. 5. Before further discussions, we think it just and proper to mention the ante mortem injuries found on the dead body of the deceased by Dr. A. Nagaich (P.W. 8) at the time of post mortem examination, who prepared autopsy report (Ext. A-5). The report discloses following ante mortem injuries on the person of the deceased:- 1. Stab wound 2.5cm X 1cm X cavity deep on left side of chest, 9 cm below left nipple midline direction backward and medially. 2. Stab wound 1.5cm X .5cm X muscle deep on left side of abdomen, 8cm below injury No. 1 and 11 cm away from umbilicus. 3. Stab wound 4cm X 1.5cm X cavity deep on left side of abdomen direction medially backward and downward. 4. Contusion 6cm X 4cm on back of left elbow and arm. 5. Contusion 22cm X 3cm on right arm extending from right shoulder upto elbow (front aspect). 6. Lacerated wound 2cm X 1cm on right side of forehead X scalp deep, 6cm above outer angle of right eye. 7. Stab wound 3cm X 1cm X cavity deep on right side of chest lower part on ant axillary line 12cm below right nipple going upward medially and backward, 12 cm below right nipple. 8. Stab wound 2.5cm X 1cm X cavity deep on right side of chest in post axillary line 6cm behind injury No. 7. 9. Stab wound 3cm X 1.5cm on back of right side X cavity deep going downwards backwards 7cm below injury No. 8. 10. Stab wound 2cm X 1cm on right buttock X muscle deep 15 cm below injury No. 9 and 5 cm away from vert. column. 11. Stab wound 1.5cm X .5cm X cavity deep on right side of back, 5cm away from injury No. 9 direction medially and forward. 12. Stab wound 2.5cm X 1cm on right side of back X cavity deep, 6cm above injury No. 11 direction medially and forward. 13. Stab wound 3cm X 1.5cm on right side of chest X cavity deep over right back, 10cm away from injury No. 12 over the inferior angle of scapula direction forward, medially and downwards, 10cm above injury No. 12. 14. Stab wound 2.5cm X 1cm on right side of back of chest 8cm above injury No. 13 and 15cm away from midline over the upper part of scapula. Direction backward, medially and upward. 15. Stab wound 1.5cm X .5cm X cavity deep 5cm away from vert. column and 8 cm away from injury No. 14.. 16. Stab wound 3cm X 1.5cm X chest cavity deep on left side of lower chest back going downward forward and medially 4cms away from midline, at L2 level. On internal examination, ecchymosis was found present under the injuries noted above. The sixth rib was found cut under injury No. 1. Liver was also found having three lacerations of different sizes under injury No. 9, 10 and 11. Right lung was found having four lacerations of different sizes under injury No. 7, 15, 14 and 13. Right kidney was having haemotoma 4cm x 3cm under injury No. 10. Left kidney found ruptured under injury No. 16. According to the Medical Officer, who conducted the post mortem examination, cause of death was shock and haemorrhage, as a result of ante mortem injuries, suffered by the deceased. From the testimony of P.W. 8 Dr. A. Nagaich, read with the autopsy report (Ext. A-5), it is evident that Kishan Singh Rana (deceased) was brutally murdered on 26.07.1988, and as per the autopsy report, dead body was found one day old on 27.07.1988. Now this Court has to see whether the trial court has correctly appreciated the evidence on record to come to the conclusion that the charge of offence punishable under Section 302 I.P.C. is proved beyond reasonable doubt on the record or not. To examine it we have gone through the oral testimony recorded before the trial court. 6. P.W. 1 Vijay Singh, complainant, aged 14 years has stated on oath that deceased was his brother, who used to work with Bank of India. The witness has further stated that he knows accused Rajendra Singh, who runs a tailoring shop infront of his house after intervening one bigha plot. The witness has further stated that the deceased had given his clothes for stitching to the accused but he did not return the clothes due to which a day before the incident, there had been altercation between the deceased and the accused. P.W. 1 Vijay Singh further states that on 26.07.1988, his brother (deceased) was coming on a motor cycle. When he came near the shop of accused, he stopped his motor cycle infront of the house of the accused. The deceased asked Rajendra Singh to hand over the clothes but the same were not stitched. On this, Rajendra Singh (accused/present respondent), who was armed with scissors, came out chasing the deceased and attacked him several times with the scissors. Consequently, the deceased fell down. According to this witness, Kisan Singh Rana in an injured condition was taken to the hospital where he was declared dead. He further states that thereafter, he lodged First Information Report by oral dictation to the police. Lastly, he says in examination in chief that he also signed the inquest report, prepared on the dead body. This eye-witness, was disbelieved by the learned trial court on the ground that in the cross examination, this witness has stated that on the date of incident, he had gone to school and he came at 2:30 p.m. and when reached his house, he saw his family members were crying. On this, he went to the hospital. The witness further told the court that the scissors were not struck in his presence. Though P.W. 3 Deepa, widow of the deceased, has stated that Vijay Singh was a drop out of the school and he did witness the incident but his statement was disbelieved by the trial court on the ground that in cross examination, he has stated that he came to his house after the incident has taken place as mentioned above. Assuming for a moment that a young boy of 13/14 years, who has narrated the prosecution story, as mentioned above, had not seen the occurrence, as narrated by him but the ground mentioned by the trial court disbelieving the statement of other eye-witnesses namely P.W. 1 Makhan Singh and P.W. 3 Smt. Deepa, are not tenable in law. 7. P.W. 2 Makhan Singh has also stated that on 26.07.1988, at about 1:00 p.m. he saw Kisan Singh Rana (deceased) coming towards the shop of Rajendra Singh (accused/present respondent). The witness further states that deceased stopped the motor cycle near the shop of Rajendra Singh where after Rajendra Singh, with scissors, gave several blows on the person of Kishan Singh, after chasing him. This witness has further stated that this incident was seen by the wife (Deepa) of deceased and his brother (Vijay Singh). He further stated that others also reached at the spot. This witness has further stated that in a three wheeler, injured Kishan Singh was immediately taken to the hospital where he was declared dead. P.W. 2 Makhan Singh has further stated that Vijay Singh also accompanied him when the injured was taken to the hospital whereafter he (Vijay Singh) went to the police station with one Shiv Singh and lodged the First Information Report. Statement of this witness is disbelieved by the trial court only for the reason that he concealed the fact in his cross examination that he is tenant of the declassed. On going through his entire testimony, we are of the view that trial court has erred in law by rejecting the testimony of this eye witness, who has given natural narration of the incident. He has stated that he is working in Drone Hotel and in his cross examination, has further stated that on the date of the incident, he was on leave. The fact that the witness (P.W.2) was not on duty gets corroboration from the statement of D.W. 1 Balwant Singh, produced on behalf of the defence, who has stated that on 26.07.1988, Makhan Singh was absent from duty. 8. Apart from the above witness (P.W.2), the trial court has erred in law in not believing the testimony of P.W. 3 Deepa, widow of the deceased, who is also eye-witness of the incident. She has also stated that a day before the incident, deceased had altercation with the accused Rajendra Singh on demanding his clothes back. She further states that on 26.07.1988, at about 1:00 p.m. when her husband (deceased) was returning on motorcycle to his house, he stopped near the shop of Rajendra Singh (accused/respondent). At that time, the witness states that she was drying her clothes on the roof of the house. She saw from the roof, accused hurling abuses at her husband whereafter her husband came out from the shop of Rajendra Singh. Thereafter Kishan Singh was chased by the accused, armed with scissors. P.W. 3 Deepa further states that her husband was caught and attacked by Rajendra Singh with scissors and after killing Kisan Singh, Rajendra Singh ran away. The witness further states that Makhan Singh, Vijay Singh and Laxman Singh also saw the incident. She further states that Makhan Singh took the deceased in a three wheeler to the hospital where he was declared dead. In the cross examination, P.W. 3 has stated that her house is hardly 20 steps away from the shop of the accused. This shows that the presence of this witness is natural and her statement is trust worthy. She has further disclosed the reason in the cross examination that why her husband had come back at 1:00 p.m. from the bank. She stated that on the date of the incident, her husband had to go to Tehri. The trial court has disbelieved the testimony of this witness for the reason that she was a related witness. Had the house of the deceased and P.W. 3 Deepa away from the place of the incident, her presence could have been doubted but in the present case, as is apparent from the site plan shop of accused and house of deceased are separated by one vacant plot, consequently. P.W. 3 Deepa had an opportunity to see the incident. 9. From the evidence on record, as found in statement of P.W. 2 Makhan Singh and P.W. 3 Deepa, it is evident that it is a broad day light murder, which has been committed in a brutal manner. The trial court has committed error of law in discarding the testimony of eye-witnesses whose presence at the place of incident should not have been doubted, for flimsy reasons. 10. Having gone through the entire evidence on record and after going through the statement of learned Additional Government Advocate for the appellant and that of the learned counsel for respondent/accused, we are of the view that prosecution has been successful in proving the charge of offence punishable under Section 302 I.P.C. against accused Rajendra Singh. 11. Therefore, the appeal is allowed. Judgment and order dated 16.11.1990, passed by learned Additional Sessions Judge, Dehradun, in Sessions Trial No. 130 of 1988, is set aside. The accused/respondent Rajendra Singh is convicted under Section 302 I.P.C. After hearing learned counsel for parties on sentence, convict/respondent Rajendra Singh, is sentenced to imprisonment for life. Send the lower court record back to the trail court with the direction that the convict be taken into custody to make him serve out the sentence awarded by this Court. (Dharam Veer, J.) (Prafulla C. Pant, J.) Dt:30.04.2008 Sweta