Judgment reserved IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 1372 of 2001 Old Number Criminal Appeal No. 294 of 1998 Gurdeep Singh and another. ……Appellants. Versus State of U.P. ..….Respondent. Present: Smt. Pushpa Joshi, learned counsel for the appellants. Mr. Nandan Arya, learned AGA for the State of Uttarakhand. Coram: Hon’ble B.C. Kandpal, J Hon’ble Nirmal Yadav, J. (Per Nirmal Yadav, J) Accused appellants Gurdeep Singh and Harnam Singh stood trial along with Kuldip Singh, Peepal Singh and Maya Kaur under section 147, 148, 302 read with section 149, 307 read with section 149, 201 IPC while accused Harnam Singh and Gurdeep Singh also faced trial under section 25 of Arms Act. Learned trial court after taking into consideration the evidence on record acquitted Kuldip Singh, Peepal Singh and Maya Kaur of the charges but convicted Harnam Singh and Gurdeep Singh under section 302 read with 34, 307 read with 34 IPC and further convicted accused Gurdeep Singh under section 25 of Arms Act. Both of them have been sentenced to undergo life imprisonment under section 302 read with 34 IPC and three years rigorous imprisonment under section 307 read with 34 IPC. Gurdeep Singh is further sentenced to undergo six months imprisonment under section 25 of the 2 Arms Act. All the sentences have been ordered to run concurrently. Brief facts leading to the present case are that on 08.10.1992 at about 05.45 p.m. Jarnail Singh along with his brother Amar Singh, Surjeet Singh and Preetam Singh (brother-in-law of Surjeet Singh), were proceeding to their house from Nagla Barrier shop. When they reached in front of the house of accused Harnam Singh, Harnam Singh and Gurdeep Singh, both armed with guns, Peepal Singh armed with sword, Kuldip Singh armed with kapa, Maya Kaur, wife of accused Harnam Singh, came out of their house. Harnam Singh exhorted that “let revenge be taken from these persons”. On saying so accused Harnam Singh and Gurdeep Singh fired from their respective guns, which hit Amar Singh and Surjeet Singh. Amar Singh fell down at the spot and while he was lying Kuldip Singh and Peepal Singh gave kapa and sword injuries to him, thus, Amar Singh died on the spot. Surjeet Singh ran away in injured condition. Thereafter, Maya Kaur poured kerosene oil and some dry straw on the dead body of Amar Singh and set him on fire. Out of fear, Jarnail Singh and his companion could not save the victim, however, on raising alarm by them, persons from the nearby houses reached the spot and consequently, accused ran away towards western side. Meanwhile, Makhan Singh, brother of the complainant Jarnail Singh also reached the spot. They carried Surjeet Singh in a bullock cart and went to Police Station – Nanakmatha. Jarnail Singh submitted a written report (exhibit Ka 1), on the basis of which First Information Report (exhibit ka 14) was recorded on 08.10.1992 at 7.30 p.m. As per the written report of Jarnail Singh, the motive for committing the crime was, that 3 about 3 months prior to the occurrence Kashmir Singh, brother of accused Gurdeep Singh and relative of other accused persons was murdered and Surjeet Singh was named as accused in the said case and since then the accused and his family members were having grudge against the complainant party. Surjeet Singh was medico legally examined by PW3 Dr. A.K. Singh on 08.10.1992 itself at 10.05 p.m. He prepared medical report (exhibit Ka 2) and found the following: “i. An entry wound of gun shot over the back of chest in mid line on right side 4 cm X 4 cm X cavity deep with inverted margins surrounded by blackening. Main wound is surrounded by 6 rounded pellet marks measuring 0.3 cm in diameter.” General condition of the patient was found to be poor and pulse was also week at the time of examination. As per the opinion of the doctor, injury was caused by gun shot and the duration of the injury was fresh. Investigation of the case was conducted by PW9 SO Kamal Ram Arya, who visited the spot, prepared the site plan of place of arrest of the accused along with gun (exhibit Ka 20), site plan of place of occurrence (exhibit Ka 21). He also prepared the inquest report (exhibit Ka 3) and other allied papers. He took into possession the sword and empty cartridges from the spot and prepared the recovery memo (exhibit Ka 9) and prepared recovery memo of gun and cartridges (exhibit Ka 10) Autopsy on the dead body of the deceased Amar Singh was conducted by Dr. Virendra Kumar (PW8) on 09.10.1992 at 4.00 p.m. As per the postmortem report 4 (exhibit Ka 19), the doctor found following ante-mortem injuries on the person of the deceased Amar Singh: “1. Gun shot wound, 3 cm X 3 cm lacerated wound present on the right side of chest, 4 cm above the right nipple. Blackening and tattooing present. Margins irregular and inverted. There is II, III and IV ribs of the right side, right pleura and leg lacerated. Right thoraces cavity blood, pellets found tagged in the thoraces cavity on the cord broad, direction of pellets backward and downward. 2. Lacerated wound, 4 cm X 2 cm. on the ventex X scalp deep 10 cm above. 3. Lacerated wound, 3 cm X 1 cm. X tissue deep on forehead 3 cm above the right eye brow. 4. Lacerated wound, 2 cm X 1 cm X tissue deep on right auxiliary area. 5. Lacerated wound, 3 cm X 1 cm. X tissue deep on left auxiliary area. 6. Lacerated wound 8 cm X 2 cm. X tissue deep on the tissue disfigurement nose. 7. Lacerated wound, 4 cm X 1 cm on the left aural area disfigurement the left ear. 8. Lacerated wound, 4 cm X 1 cm on the right aural area disfigurement right ear. 9. Multiple lacerated wound present on the right hand wrist of 1 cm. X 0.5 cm., 1.5 cm X 1 cm X tissue deep. 10. Multiple lacerated wound present on the left hand dorsal area and wrist of size 1 cm. X 0.5 cm. X 2 cm X tissue deep. 11. Lacerated wound on the back of chest left 4 cm X 2 cm X tissue deep 10 cm. above the left crest. 5 12. Multiple abrasion present on both upper arms right and left of size 2 cm X 1 cm X 1 cm X 0.5 cm. 13. Burn injury present on the face front of chest and both upper arm resulting in disfigurement of face.” As per the opinion of doctor, cause of death was shock and haemorrhage due to ante-mortem injuries. Accused Gurdeep Singh was arrested by PW4 SI Shoki Ram Chaudhary on 10.10.1992 at 5.15 p.m. and gun was recovered from his possession. He prepared recovery memo (exhibit Ka 10) and a case under section 25 of Arms Act was registered against accused vide chick FIR (exhibit Ka 11). Other accused were arrested on 16.10.1992. The permission to prosecute accused Gurdeep Singh for the offence punishable under section 25 of Arms Act was obtained from District Magistrate, Nainital. On completion of the investigation, police submitted chargesheet against the accused persons. Accused Harnam Singh, Gurdeep Singh, Kuldip Singh, Peepal Singh were charged under section 147, 148, 302 read with 149 and 307 read with 149 IPC while Maya Kaur was charged under section 201 IPC. Accused Gurdeep Singh was also charged under section 25 of the Arms Act. Accused pleaded not guilty and claimed trial. In order to prove its case, prosecution produced as many as 9 witnesses. PW1 Jarnail Singh and PW 2 Surjeet Singh (injured) eye witnesses. PW 3 Dr. A.K. Singh medico legally examined Surjeet Singh. PW4 SI Shoki Ram Chaudhary partly investigated the case. PW5 Chandan Singh recorded the chick FIR (exhibit Ka 14) on the basis of written report submitted by complainant PW1 Jarnail Singh. PW6 Bagicha Singh accompanied Investigating 6 Officer to the spot and was signatory to the panchayatnama. In his presence empty cartridges, sword and bloodstained earth were taken into possession by the Investigating Officer. PW7 SI Laxman Singh also partly investigated the matter and arrested accused Gurdeep Singh, from whose possession a 12 bore gun was recovered. PW 8 Dr. Virendra Kumar conducted the autopsy on the dead body of Amar Singh. PW9 SO Kamal Ram Arya was the investigating officer. All the accused when examined under section 313 Cr.P.C. denied incriminating evidence put to them by the prosecution and pleaded false implication. We have heard Mrs. Pushpa Joshi and Mr. Nandan Arya, learned AGA for the State. Learned counsel for the appellants argued that FIR in the present case is ante-timed. According to her, it appears to be highly improbable that complainant would first go to the police station rather than taking Surjeet Singh (injured) to the hospital. As per medical report (exhibit Ka 2) Surjeet Singh was examined in the hospital at 10.05 p.m. As per complainant, he left Surjeet Singh in the police station itself and went to the spot with the police officials from police station. Such conduct of the complainant appears to be quite unnatural. Learned counsel further argued that the prosecution has miserably failed to prove the manner and genesis of the occurrence. It is argued that the from the facts on record it appears that Amar Singh and Surjeet Singh received injuries somewhere else and accused have been falsely implicated on account of enmity. She pointed out that as per the post mortem report (exhibit Ka 19), deceased Amar Singh received only one gun shot injury 7 while he received ten lacerated wounds and injury no. 12 is multiple abrasion while injury no. 13 is burnt injury on the front portion of the body i.e. face, chest and both upper arms. The prosecution has not given any plausible explanation with regard to lacerated wounds found on the dead body of Amar Singh. Learned counsel for the appellants argued that PW1 Jarnail Singh and PW2 Surjeet Singh were not present at the place of occurrence and they had no occasion to the witness the occurrence. Both the witnesses i.e. PW1 Jarnail Singh and PW2 Surjeet Singh have stated that Harnam Singh and Gurdeep Singh had caused one fire arm injury each to Amar Singh and Surjeet Singh. Accused Kuldip Singh and Peepal Singh are alleged to have been armed with kapa and sword respectively, however, no incised wound has been found on the person of Amar Singh. It is argued that above circumstances create serious doubt in the prosecution story. Since no incised wound had been found on the person of Amar Singh, learned trial court has already acquitted Peepal Singh and Kuldip Singh. Learned counsel further argued that no fire arm has been recovered from the possession of accused Harnam Singh though two empty cartridges had been shown to be recovered from the place of occurrence by the prosecution. There is of course an explanation with regard to one of the empty cartridges, as one of the cartridges has been proved to be fired from the gun of Gurdeep Singh but there is no explanation with regard to the other cartridge. Learned counsel for the appellants pointed out that as per site plan (exhibit ka 20) accused Harnam Singh is 8 alleged to have been arrested along with gun but there is no recovery memo nor the investigating officer has stated that he had recovered any gun from accused Harnam Singh. This circumstance clearly exposes the falsity of the prosecution case. Learned counsel for the appellants, thus, argued that testimony of PW 1 Jarnail Singh and PW 2 Surjeet Singh is totally false. They were neither present at the place of occurrence nor they had any occasion to witness the occurrence. On the other hand, learned AGA argued that the incident was promptly reported to the police. The occurrence took place at about 05.45 p.m. and the FIR was lodged by PW 1 Jarnail Singh at 07.30 p.m. Therefore, FIR cannot be said to be ante-timed nor there appears to be any manipulation or confabulation in the prosecution story. He further argued that accused have very strong motive for committing the crime as PW 2 Surjeet Singh was earlier charged for committing the murder of Kashmir Singh, brother of accused Gurdeep Singh. He further argued that presence of PW 1 Jarnail Singh and PW 2 Surjeet Singh cannot be doubted, as PW2 Surjeet Singh himself received gunshot injury at the hands of the accused. PW 2 Surjeet Singh categorically stated that accused Harnam Singh and Gurdeep Singh fired one shot each from their respective guns and thereafter, he (Surjeet Singh) ran away about 50 paces out of fear. PW 1 Jarnail Singh reiterated the version given in the FIR. Learned AGA argued that it appears that both of them ran away from the spot out of fear as fire arms were being used by the accused, therefore, they could not see as to how rest of the injuries were caused on the person of 9 the deceased Amar Singh but they have categorically stated that accused Harnam Singh and Gurdeep Singh had caused one fire arm injury each to Amar Singh and Surjeet Singh. Learned AGA argued that it may be possible that accused might have used some blunt object or their guns for causing other injuries on the person of Amar Singh. Eye-witness account is further corroborated by recovery of gun and report of the ballistic expert. As per the report of the ballistic expert, one of the cartridges recovered from the spot was fired from the gun recovered from the possession of accused Gurdeep Singh. We have carefully considered the rival submissions made by learned counsel for the parties and scrutinized the entire evidence on record. The prosecution’s case mainly rests on the testimony of PW1 Jarnail Singh and PW2 Surjeet Singh (injured witness). Learned counsel for the appellants has challenged the presence of PW1 Jarnail Singh and PW2 Surjeet Singh at the spot mainly on the ground that they have not given any explanation with regard to lacerated wounds (injury nos. 2 to 11) found on the person of Amar Singh. According to witnesses, these injuries were caused by Peepal Singh and Kuldip Singh armed with sword and kapa respectively but these injuries could not have been caused by any sharp edged weapon. These injuries could only be caused either by some blunt weapon or by some fire arm. It is true that Amar Singh did not receive any incised wound though as per PW1 Jarnail Singh and PW2 Surjeet Singh accused Peepal Singh and Kuldip Singh (since acquitted) armed with sword and kapa had caused these injuries with their respective weapons. Both the witnesses did not explain as to how 10 injuries no. 2 to 11 which are lacerated wounds, were caused on the person of Amar Singh. At a glance, the argument of learned counsel for the appellants appears to be impressive. However, after going through the testimony of PW2 Surjeet Singh (injured), the impression stands clarified. According to PW2 Surjeet Singh, when he along with Amar Singh, Jairnail Singh and Preetam Singh reached near the house of accused Harnam Singh, Harnam made an exhortation for taking revenge and immediately, thereafter, accused Harnam Singh and Gurdeep Singh fired one gun shot each. He further says that after receiving fire arm injury he ran for his life and stopped at a distance of 50 paces. Thereafter, he became unconscious and remained unconscious, till he was medico legally examined by PW3 Dr. A.K. Singh. PW3 Dr. A.K. Singh also states that the condition of the patient (PW2 Surjeet Singh) was serious and his pulse was very weak. A perusal of the site plan (exhibit Ka 21) also supports the testimony of PW2 Surjeet Singh (injured witness). PW2 Surjeet Singh along with deceased Amar Singh, Jarnail Singh and Preetam Singh were coming from Nagla Road, and when they reached in front of accused Harnam Singh’s house, accused caused fire arm injury to them at point “B”. On receiving the injury PW 2 Surjeet Singh ran away upto point “A” i.e. for about 50 paces. Since he had received gun shot injury on his back side, it appears that on seeing the accused, he started running and during that period he received gun shot injury on his back. He, thus, had no occasion to witness the occurrence thereafter. Therefore, he could not see as to how Amar Singh received injuries after he received gun shot injury. 11 His condition was serious and he became unconscious, therefore, he could not have seen any other injury having been caused on the person of Amar Singh. However, there is nothing on record to disbelieve his version upto the time, when accused Harnam Singh and Gurdeep Singh fired at him and Amar Singh with their respective weapon. He is the injured witness, therefore, he would not like to spare the real culprits. If he and his brother Amar Singh had received injuries at the hands of other assailants, he would certainly disclose their names. Presence of PW1 Jarnail Singh also cannot be disbelieved. He has categorically stated that Harnam Singh and Gurdeep Singh had fired towards them but fire had hit Surjeet Singh and Amar Singh. Since accused were armed with firearms PW1 Jarnail Singh must have also ran for his life and could not have witness the incident thereafter. PW1 Jarnail Singh took PW 2 Surjeet Singh in a bullock cart and went straight to the police station and reported the matter. Eye witness account as given by PW1 Jarnail Singh and PW2 Surjeet Singh cannot be disbelieved merely because they were not in a position to state as to how Amar Singh received lacerated wounds. Moreover, there is an explanation in the statement of PW2 Surjeet Singh when he said that he ran for his life after receiving gun shot injury. After going through the testimony of both the witnesses, we are of the view that in such a situation, the court has to strain out the grain from chaff to cult out the truth. The testimony of both the witnesses appears to be truthful and trustworthy, as PW2 Surjeet Singh stated that 12 after receiving the gunshot injury, he ran for his life and therefore, he may not have seen rest of the occurrence. Simply because the witnesses have not been able to explain some of the injuries on the person of Amar Singh (deceased) their testimony cannot be disbelieved. It may be possible that they may have not seen that other accused had used sword and kapa from blunt side. However, learned trial court has given benefit of doubt to accused Kuldip Singh and Peepal Singh. Against the said finding no appeal has been filed by the State. Two empty cartridges have been recovered from the place of occurrence which clearly corroborates the statement of PW1 Jarnail Singh and PW 2 Surjeet Singh that one gun shot each were fired by accused Harnam Singh and Gurdeep Singh, which hit Amar Singh and Surjeet Singh resulting into death of Amar Singh. Harnam Singh had exhorted before causing injury that they must take revenge. It is not disputed that prior to the present occurrence, Kashmir Singh, brother of accused Gurdeep Singh was murdered and PW 2 Surjeet Singh was named as accused in the said case. Accordingly, the accused had a strong motive for committing the crime, as Kashmir Singh, brother of accused Gurdeep Singh, was alleged to have been murdered and PW2 Surjeet Singh was named as accused. From accused Gurdeep Singh a 12 bore gun was recovered along with cartridges. The gun was sent for examination by ballistic expert. Ballistic expert categorically opined that the gun was used in commission of crime as cartridge recovered from the place of occurrence was found to be fired from that gun. 13 In our view, the trial court has rightly convicted the accused Harnam Singh and Gurdeep Singh under section 302 read with section 34 IPC and section 307 read with section 34 IPC and has further rightly convicted accused Gurdeep Singh under section 25 of the Arms Act and has rightly given the benefit of doubt to other accused Kuldip Singh and Peepal Singh, who were armed with kapa and sword. Accordingly, we do not find any ground to interfere with findings recoded by the learned trial court. There is no merit in appeal and the same is dismissed. Accused appellants Gurdeep Singh and Harnam Singh, who are on bail vide order dated 13.02.1998, be taken into custody forthwith in order to serve the sentence as awarded by the trial court vide judgment and order dated 09.02.1998. The trial court is directed to ensure the compliance of the order. (Nirmal Yadav, J.) (B.C. Kandpal, J) 04.05.2010 SKS