Judgment reserved IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 869 of 2001 Old Number Criminal Appeal No. 2325 of 1999 Smt. Angoori Devi and others. ……..…Appellants. Versus State of Uttar Pradesh. …….….Respondent. Present: Mr. S.K. Agarwal, Sr. Advocate with Mr. Jitendra Chaudhary, for appellants no. 1, 2 and 4. Mr. A.S. Gill and Mr. Rajendra Kotiyal, Advocates for appellant no. 3. Mr. S.S. Adhikari, learned AGA for the State of Uttarakhand/ respondent. Coram: Hon’ble B.C. Kandpal, J Hon’ble Nirmal Yadav, J. (Per Nirmal Yadav, J) The accused appellants have challenged the judgment and order dated 10.09.1999 passed by Special Judge (CBI) / Additional District Judge, Nainital in sessions trial no. 234 of 1990 vide which they have been convicted under section 302 read with section 34 IPC and sentenced to undergo life imprisonment and to pay a fine of Rs. 1000/- each and in default of payment of fine, they have been ordered to undergo further simple imprisonment of one month each. Facts of the case, in brief, are that on 24.11.1989 at about 3.30 p.m. deceased Jaswant Singh along with his younger son Palvinder Singh was going from Rudrapur to his village Bhamrola when they reached 2 on the side lane of the canal, accused Angoori Devi along with her brother-in-law Chandra Pal Singh alias Daroga armed with gun, Vijay Pal Singh armed with country made pistol and Basant Kumar armed with farsa came out of the sugarcane field and encircled Jaswant Singh and Palvinder Singh. Accused Angoori Devi exhorted to kill Jaswant Singh, as he had murdered her brother, thereupon Chandra Pal Singh and Vijay Pal Singh fired with their respective weapons and Basant Kumar gave farsa injury. On alarm being raised by Jaswant Singh and Palvinder Singh, Daljeet Singh (son of Jaswant Singh), Lakhvinder Kaur (wife of Jaswant Singh) and Satyendra Singh (cousin of Palvinder Singh) reached the spot and witnessed the occurrence. They challenged the accused persons, thus, all the four accused ran away towards Bhamrola. The motive for causing the injury was that Om Veer Singh, brother of Angoori Devi, had been murdered in the year 1986. Jaswant Singh and one Pope Singh were named as accused. Angoori Devi had got murdered Pope Singh later on and the case against Jaswant Singh only was pending in the court. Angoori Devi was looking for an opportunity to take revenge from Jaswant Singh. The matter was reported by Palvinder Singh by submitting application exhibit Ka 14 in police station Rudrapur on the basis of which chick First Information Report (exhibit Ka 7) was recorded on 24.11.1989 at 4.30 p.m. The investigation was handed over to PW6 Chandra Pal Pathak, who visited the spot and 3 prepared scaled site plan (exhibit Ka 12) and took into possession the blood stained shirt and turban of deceased Jaswant Singh. He also lifted empty cartridges and wads from the spot and took into possession vide memo exhibit Ka 2. Blood stained earth and simple earth were also taken into possession from the place of occurrence vide memo exhibit Ka 3. The shoes of the victim were also taken into possession vide memo exhibit Ka 4. He also prepared the inquest report. Dead body was sealed in a parcel and sent for postmortem. The postmortem was conducted on 25.11.1989 at 12.05 p.m. The post mortem report is exhibit Ka 6. After recording the statement of the witnesses and completion of the investigation, chargesheet was submitted before the court. On the basis of evidence on record, the accused were charged under section 302 read with section 34 IPC to which they pleaded not guilty and claimed trial. The prosecution, in order to prove its case, produced as many as seven witnesses. PW1 Malook Singh had joined the investigation and was present with the Investigating Officer at the time of recovery of clothes and other articles from the spot. PW2 Constable Hardwari Lal was present at the time of preparation of inquest report. Dead body was handed over to him and he took the same to Hospital for postmortem. PW3 Lakhvinder Kaur and PW4 Daljeet Singh, wife and son of Jaswant Singh respectively, are the eye witnesses. PW5 Dr. Arvind Agarwal, Medical Officer, District Hospital, Bareilly, conducted the 4 postmortem on the dead body of Jaswant Singh. PW6 Chandra Pal Pathak, is the Investigating Officer. PW7 Ujagar Singh is the scribe of the First Information Report. PW5 Dr. Arvind Agarwal found following ante- mortem injuries on the dead body of the deceased: “(i). Multiple firearm wound of entry in the area of 28 cm X 24 cm on the back of chest with average size of 0.1 cm X 0.1 cm X muscle deep. Margins were inverted and lacerated. No blackening, scorching or tattooing found around the wound. 14 metallic pellets were recovered from the muscles of the back of chest. (ii). Firearm wound of entry 0.5 cm X 0.5 cm X chest cavity deep on the left side of upper chest 5.6 cm below the shoulder 11 cm from mid line. Margins were inverted and lacerated. Tattooing was present around the wound. Direction of the wound was from left to right obliquely downward. One metallic bullet was recovered from the posterior chest wall of right side level of T 8. (iii). Firearm wound 8 cm. X 4 cm X tissue deep on the right side of the face at the level of angle mandible and ear with fracture of underneath mandible and right ear missing with blackening below mandible with the 5 direction below upward and obliquely backwards. (iv). Incised wound 2.5 cm. X 0.3 cm X 0.3 cm deep at the base index finger on palmer surface 8.3 cms below the deep of index finger.” As per opinion of doctor, cause of death was shock and haemorrhage due to ante-mortem injuries. On internal examination, both right and left lungs were found lacerated. Both the cavities were full of blood and heart was empty. Stomach was having six ounce semi digested food. According to the opinion of doctor, death could have been caused at 3.30 p.m. on 24.11.1989. Injuries no. 1 to 3 could be possible by firearm weapon while injury no. 4 could be possible by farsa. Injury no. 1 could be caused by firearm from the backside of the deceased. Injury no. 2 could be caused if assailant was on the left side of the deceased. Injury no. 1 could have been caused from a distance 12-50 feet. Injury no. 2 could be caused from a distance of 6 feet while injury no. 3 might have been caused from a distance of less than 6 feet. All the accused when examined under section 313 Cr.P.C. denied the incriminating evidence put to them by the prosecution and pleaded false implication. According to Angoori Devi, complainant and his family members wanted to take forcible possession of her land, therefore, a false case has been foisted upon 6 her. According to Vijay Pal Singh, land of Jaswant Singh is adjacent to his land. He irrigated his land from canal and on this account deceased Jaswant Singh was having grudge against him, therefore, he has been falsely implicated. No other evidence was produced in their defence. We have heard Mr. S. K. Agarwal, Sr. Advocate assisted by Mr. Jitendra Chaudhary, learned counsel for appellants no. 1, 2 and 4, Mr. A. S. Gill and Mr. Rajendra Kotiyal, learned counsel for the respondent no. 3 and Mr. S. S. Adhikari, learned AGA for the State. Learned AGA submitted that prosecution case is fully supported by the testimony of PW3 Lakhvinder Kaur and PW4 Daljeet Singh, wife and son of Jaswant Singh respectively. They have categorically stated that about 8 years ago at about 3.30 p.m. Jaswant Singh along with his younger son Palvinder Singh was coming towards his house from the market and had reached on the side lane of canal. Meanwhile, their pet dog ran out of the house towards the canal, Lakhvinder Kaur and Daljeet Singh followed him and when they reached near the canal, they saw all the four accused coming out of sugar cane field and on exhortation of Angoori Devi, Chandra Pal Singh alias Daroga and Vijay Pal Singh fired towards Jaswant Singh from their respective weapons while Basant Kumar caused one farsa injury to him. Thereafter, all of them ran way from the spot. Jaswant Singh 7 succumbed to his injuries at the place of occurrence itself. Learned AGA further argued that accused had strong motive to commit the murder as Jaswant Singh had committed the murder of Om Veer Singh, brother of Angoori Devi and was facing criminal trial. He further argued that eye witness account is fully supported by medical evidence. All the four accused came out together from the sugarcane field and on exhortation of Angoori Devi, other three accused, who were armed with deadly weapon, caused such injuries on the person of Jaswant Singh, which were sufficient to cause death in the ordinary course. On the other hand, Mr. S.K. Agarwal, learned counsel for the appellants no. 1, 2 and 4 argued that prosecution case is shrouded with suspicion and doubts. According to him, complainant Palvinder Singh, who is alleged to have lodged First Information Report has not been examined though he is alleged to be the eye witness of the entire incident. He further pointed out that PW7 Ujagar Singh has totally demolished the prosecution case. He stated on oath that the First Information Report was scribed by him on the same day after consultation with 5-6 villagers and on the direction of the Investigating Officer and Palvinder Singh was not present at that time and his signature was obtained by the Investigating Officer later on in the police station. Learned counsel thus argued that from the statement of PW7 Ujagar Singh it is clear that Palvinder Singh was not present at the time of occurrence. 8 Next argument raised by the learned counsel for the appellants no. 1, 2 and 4 is that even the presence of PW3 & PW4 at the place of occurrence is highly improbable. As per the evidence on record, house of these eye witnesses is at a distance of 150 paces from the spot and by the time they would have reached the spot, the occurrence must have already taken place. Both the witnesses have made improvements in their statements by introducing the story about the running out of their pet dog towards the place of occurrence. He further argued that the testimony of PW3 and PW4 suffers from material discrepancies and contradictions. Learned counsel vehemently argued that medical evidence is incompatible with the manner of occurrence as described by eye witnesses Lakhvinder Kaur and Daljeet Singh. He referred to the statement of Lakhvinder Kaur, who stated that Vijay Pal Singh and Chander Pal Singh fired from their respective weapons on the back side of deceased, however, as per opinion of PW5 Dr. Arvind Agarwal, shots were fired from front side. She also stated that 3 or 4 shots were fired on the deceased whereas PW4 Daljeet Singh stated that only two shots were fired on Jaswant Singh from front side, however, as per postmortem report, deceased received three gun shot injuries. The above facts clearly show that both the alleged eye witnesses were not present at the spot and they have been introduced by the prosecution later on. Both the eye witnesses are interested and related witness and therefore, no reliance should be placed on their 9 testimony to base the conviction of the accused persons. Learned counsel further argued that no case or crime number was mentioned in the inquest report and other papers which were prepared during the investigation, showing thereof that First Information Report was lodged afterward. Learned counsel for the accused/ appellants no. 1, 2 and 4 argued that the only role attributed to Angoori Devi is of exhortation to provoke other accused to kill Jaswant Singh which is quite unconvincing. It does not appear to be plausible that she would accompany the other accused unarmed and lay in ambush for raising exhortation only. Moreover, the statements of both the eye witnesses are contrary with regard to exhortation also. Learned counsel further argued that Investigating Officer did not send the blood stained earth for chemical examination and therefore, prosecution has not been able to establish the place of occurrence. Learned counsel for the accused Basant Kumar stated that only one minor injury on the base of index finger has been attributed to him. This injury could be caused as a result of friction or by grazing of any stray pellet. He had no motive or enmity against the deceased and he has been falsely implicated. The prosecution case mainly rests on the testimony of PW3 Lakhvinder Kaur and PW4 Daljeet 10 Singh, wife and son of Jaswant Singh respectively. Both of them have fully supported the prosecution case. Learned counsel for the appellants no. 1, 2 and 4 has challenged the testimony of PW3 Lakhvinder Kaur and PW4 Daljeet Singh merely on the ground that they are interested witness being related to the deceased. It is also argued by learned counsel for the appellants no. 1, 2 and 4 that they have made material improvements in the prosecution case by introducing the story of running after their pet dog towards the place of occurrence. In our opinion, this argument of learned counsel for the appellants is misconceived. It is well established that First Information Report is not an encyclopedia, which would include all minute things. It must contain the genesis and manner in which occurrence took place, however, other details can only be disclosed by the witnesses, who had an occasion to watch and witness the occurrence with their own eyes while deposing before the court. Presence of PW3 Lakhvinder Kaur and PW4 Daljeet at the place of occurrence appears to be quite natural. PW3 Lakhvinder Kaur categorically stated that place where the occurrence took place is not far from her house, it was just few paces from the culvert. As per the site plan (exhibit Ka 12) point ‘d’ is the place where deceased Jaswant Singh and Palvinder Singh had reached and seen all the accused coming out of the sugarcane field. However, part of injuries were received at point ‘v’ which is at a distance of 45 paces from point ‘d’. The distance between point ‘d’ where 11 deceased Jaswant Singh and Palvinder Singh were present and point ‘u’ from where PW3 Lakhvinder Kaur and her son PW4 Daljeet Singh had seen the occurrence is stated to be only 50 paces. They have further stated that Palvinder Singh ran towards point ‘u’ on seeing the accused person while Jaswant Singh went towards point ‘v’ where he received injuries at the hands of accused persons. Presence of both eye witnesses PW3 Lakhvinder Kaur and PW4 Daljeet Singh at the time and place of occurrence was natural as their house and field are located very close to the place of occurrence. PW4 Daljeet Singh stated that his house must be at a distance of 50-60 paces from the culvert. The argument of the learned counsel for the appellants no. 1, 2 and 4 that accused were at a distance of 150 paces from the spot is not substantiated by any evidence. The site plan fully supports the statement of PW3 Lakhvinder Kaur and PW4 Daljeet Singh, showing that they were at a distance of 50 paces from the place of occurrence at the time of occurrence. Learned counsel for the appellants referred to the statement of PW6 Chandra Pal Pathak, the Investigating Officer to say that house of deceased was at a distance of 150 – 200 paces from the place of occurrence. This statement of Investigating Officer is also not substantiated by any documentary evidence. He has not referred to any case diary or any other document to prove this fact. The site plan does not 12 depict the distance between the two places. Moreover, the distance between the house and the place of occurrence is not at all material as both the eye witnesses have categorically stated that they were following their dog, who ran out of the house towards canal and they were at point ‘u’ which was at a distance of 50 paces from point ‘d’ where deceased Jaswant Singh along with his son Palvinder Singh had reached and seen the assailants, who had prepared themselves to attack him. From point ‘d’ Jaswant Singh ran towards point ‘v’ where he had received injuries. Argument of the learned counsel for the appellants no. 1, 2 and 4 that as per statement of PW3 Lakhvinder Kaur and PW4 Daljeet Singh, Jaswant Singh received injuries form his front side, as he and the accused were face to face with each other. He also urged that medical evidence is not compatible with the ocular version given by the two eye witnesses. This argument is not at all acceptable to us. It has come in the evidence that on seeing the accused persons, Jaswant Singh ran towards point ‘v’ from point ‘d’. After going through the entire evidence on record, we are of the opinion that there is no contradiction or incompatibility between ocular version and the medical version. Jaswant Singh received three fire arm injuries. Injury no. 1 is on the waist of the deceased. Injury no. 2 is on back side of his chest while injury no. 3 is on the mandible of right side of face. It is true that initially deceased and the accused were face to face 13 when accused had confronted him but it is quite possible and it has also come in the evidence that he ran towards point ‘v’ on seeing accused, therefore, he received injuries on his back while he was running towards point ‘v’. According to PW5 Dr. Arvind Agarwal, injury no. 1 could be received when shot was fired from back side of the deceased while injury no. 2 could be possible if accused were on the left side of the deceased. Moreover, when the assailants were armed with deadly weapons it would be natural for the victim to run away on seeing the accused. Learned counsel for the appellants no. 1, 2 and 4 further pointed that there is blackening around injury no. 3. Similarly, tattooing was present around the injury no. 2 while there was no blackening or scorching around injury no. 1. Therefore, these injuries were not possible from a distance of 12 – 50 feet as stated by doctor. We are not at all agreeable with this argument, it has come in the evidence and would also be clear from the site plan that accused had come out from point ‘A’ when Jaswant Singh was at point ‘d’, therefore, two injuries i.e. injury nos. 2 and 3 must have been caused from a close range and thereafter, when deceased ran toward point ‘v’ injury no. 1 must have been caused from a longer range as dispersal of pellets very large having caused from long distance. 14 It is also argued by learned counsel for the appellants that as per eye witnesses, only two shots were fired by Vijay Pal Singh and Chandra Pal Singh alias Daroga whereas as per postmortem report three fire arm injuries were found on the person of the deceased, therefore, ocular version does not co-relate with the medical evidence. This argument of the learned counsel at a glance appears to be quite impressive, however, after going through the statement of both the eye witnesses, we find that in the cross examination, PW3 Lakhvinder Kaur stated that 3 or 4 shots were fired whereas in the examination-in- chief she stated that first Chandra Pal Singh alias Daroga fired at her husband (Jaswant Singh), thereafter, Vijay Pal Singh fired from his country made pistol but she has not specified that both had fired one shot each. We are unable to come to the conclusion that witnesses have stated that only one shot each was fired by each accused persons. It might be possible that two shots were fired by one of the accused and one shot by the other. We are thus of the view that medical evidence does not in any way contradict the ocular version. We cannot loose sight of the fact that occurrence took place during the day time i.e. at 3.30 p.m. and First Information Report was registered with promptitude i.e. within one hour after the occurrence. According to the learned counsel for appellants prosecution has not been able to prove the correct genesis of the occurrence, as the complainant Palvinder Singh has not been examined. It is argued 15 that he was the most important witness, who could disclose the manner in which occurrence took place. It has further been pointed that PW7 Ujagar Singh totally demolished the prosecution story by stating that Palvinder Singh had not dictated the complaint to him on the basis of which First Information Report was registered. According to him, he had scribed the complaint in consultation with 5 – 6 persons of the village i.e. Malook Singh, Succha Singh, Fakir Singh and Baldev Singh and on the asking of Investigating Officer. It is true that complainant Palvinder Singh has not been examined and according to PW7 Ujagar Singh he had scribed the First Information Report on the dictation of Malook Singh, Succha Singh, Fakir Singh and Baldev Singh. PW7 Ujagar Singh, of course, has been declared hostile. After going through statement of this witness, we find that he has nowhere stated that Palvinder Singh was not accompanying his father and had not seen the occurrence. He has simply stated that Palvinder Singh was not present when he had scribed the First Information Report as Palvinder Singh had gone to meet some advocate. In our opinion, non production of complainant Palvinder Singh does not in any way adversely affect the prosecution case. PW7 Ujagar Singh, of course, has stated that complainant Palvinder Singh did not dictate the First Information Report to him and his signatures were obtained by the Investigating Officer 16 later on in the police station. However, no such suggestion has been given to the Investigating Officer PW6 Chandra Pal Pathak that he had obtained the signature of Palvinder Singh on the First Information Report later on in the police station. PW6 Chandra Pal Pathak has categorically stated that he had reached the place of occurrence about 1 ¼ hour after the First Information Report was lodged. No suggestion has been given to any of the witnesses that PW 1 Malook Singh, Succha Singh, Fakir Singh and Baldev Singh, who alleged to have dictated the First Information Report to Ujagar Singh, were in any way inimical towards accused persons nor any documentary or ocular evidence has been produced to show that anyone of them is inimical towards accused persons. Moreover, name of two witnesses i.e. PW3 Lakhvinder Kaur and PW4 Daljeet Singh finds mention in the First Information Report that they had seen the occurrence and they had also challenged the accused persons. The argument of the learned counsel for the appellants that Investigating Officer did not send the blood stained earth for chemical examination or he has not mentioned the case or crime number on the inquest report and on other relating papers, do not create any dent in the prosecution case. It can be said to be mere negligence or lapse on the part of the Investigating Officer, which would not create any doubt in the prosecution case, as the case is otherwise proved from the cogent and consistent testimony of PW 3 Lakhvinder Kaur and PW4 Daljeet Singh having 17 been supported and corroborated by the medical evidence as discussed above. The prosecution has been able to successfully prove that accused had a strong motive to commit the murder of Jaswant Singh, as he was accused of causing murder