IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Government Appeal No. 1171 of 2001 (Old No. 1966 of 1998) State of U.P. (Now State of Uttarakhand) ………. Appellant Versus 1. Deepak S/o Surjeet Bhagat 2. Surjeet Bhagat S/o Desraj 3. Smt. Sitarani W/o Surjeet Bhagat All R/o H.No. 300, Ramnagar Roorkee P.S. : Gangnahar District-Haridwar. ……. Respondents Present : Sri S.S. Adhikari, learned A.G.A. present for the State/appellant. Sri Sanjeev Singh Advocate and Sri Prabhakar Joshi, Amicus Curiae present for the respondents. Hon’ble Prafulla C. Pant, J. Hon’ble Nirmal Yadav, J. This appeal, preferred under section 378 (3) of the Code of Criminal Procedure, 1973 (for short Cr.P.C.) is directed against judgment and order dated 13.05.1998 passed by Additional Sessions Judge, Roorkee in Sessions trial No.28/1994 & Sessions trial No.29/1994, whereby the said court has acquitted respondents Deepak, Surjeet and Sitarani of the charge of the offences punishable under sections 452, 307/34, 302/34 of Indian Penal Code, 1860 (for short I.P.C.). The accused appellant Surjeet has been further acquitted of the charge of the offence punishable under sections 25/4, 27 of the Arms Act, 1959. 2 2. Heard learned counsel for the parties and perused the lower court record. 3. Prosecution story, in brief is that on 27.08.1993 at about 09.35 a.m. PW-2 Ram Kumar Sharma gave a first information report (exhibit A-1) at police station Gangnahar, Roorkee, District Hardiwar stating that his younger brother Raj Kumar Sharma (deceased), his mother Smt. Omwati (PW-4) and complainant’s wife Pushpa were in their house in Mohalla Ramnagar, Rookee. A tape-recorder was on at that time. Accused respondents Surjeet, his son Deepak and Surjeet’s wife Sitarani, neighbours of the aforesaid persons, came out from their house and objected to playing of the tape-recorder with loud voice. And they started quarrelling. Soon thereafter accused respondents Surjeet and Deepak went to their house and came back with swords in their hands. Prosecution case is that accused respondents Surjeet and Deepak assaulted Raj Kumar with swords and Surjeet’s wife Sitarani assaulted with a stone on the head of Omwati. The incident took place at 08.30 a.m. The incident was also witnessed by PW-1 Babu Ram, PW-3 Kalu Ram and Ritesh. After causing injuries on the person of Raj Kumar and Omwati, accused/respondents ran away. Injured were taken to hospital where Raj Kumar succumbed to injuries. On the basis of first information report lodged by complainant crime No.164 of 1993 was registered at police station Gangnahar Roorkee relating to the offences punishable under sections 452, 307, 302 IPC against the accused respondents Surjeet, Deepak and Sitarani. The investigation was taken up by PW-7 Sub Inspector Karan Singh. The police took the dead body of the deceased Raj Kumar in their possession and prepared the inquest report (exhibit A-7), police form No.13 (exhibit A-8), and sketch of dead body (exhibit A-9). The dead body in a 3 sealed condition, was sent for postmortem examination. PW- 5 Dr. P.K. Bhatnagar conducted postmortem examination on 27.08.1993 at about 03.15 p.m. on the dead body of Raj Kumar (deceased) and prepared autopsy report (exhibit A-3). He recorded the punctured wound on the body of the deceased and opined that deceased had died due to shock and haemorrhage as a result of ante mortem injuries. Investigating Officer, after interrogating the witnesses, and recovery of weapons, submitted chargesheet (exhibit A-17) against all three accused Deepak, Surjeet and Sitarani for their trial in respect of offences punishable under sections 302, 307, 452 IPC. Meanwhile, after recovery of weapon, a separate crime No.166 of 1993 was registered against Surjeet which was separately investigated by Sub Inspector Rambabu Singh who submitted a separate chargesheet against said accused for his trial in respect of offence punishable under sections 25/4 and 27 of Arms Act, 1959. 4. The Magistrate, on receipt of the chargesheets, after giving necessary copies to the accused as required under section 207 of Cr.P.C. appears to have committed the cases to the court of Sessions for trial. Learned Additional Sessions Judge, Roorkee to whom the case was transferred on 13.09.1995, framed the charge of offences punishable under sections 452, 302/34, 307/34 IPC against all three accused namely Deepak, Surjeet and Sitarani. A separate charge was framed against accused Surjeet in respect of offence punishable under sections 25/4 and 27 of the Arms Act, 1959, to which all three accused pleaded not guilty and claimed to be tried. On this, prosecution got examined PW-1 Babu Ram (eye witness), PW-2 Ram Kumar (complainant), PW-3 Kalu Ram (eye witness), PW-4 Omwati (injured eye witness), 4 PW-5 Dr. P.K. Bhatnagar, who conducted the postmortem examination, PW-6 Raj Kumar S/o Mangal Sen, PW-7 Sub Inspector Karan Singh, Investigating Officer, and PW-8 Dr. S.K. Prabhakar, who inspected injuries on the person of injured at the time the injured were taken to hospital. 5. The oral and documentary evidence was put to the accused under section 313 of Cr.P.C. in reply to which they alleged the same to be false and pleaded that they have been falsely implicated due to enmity. However, no evidence was given in defence. The trial court after hearing of the parties found that the prosecution has failed to prove the charge against respondents beyond reasonable doubt and acquitted them of the charge. Hence, this appeal was filed by State before Allahabad High Court on 11.08.1998. The appeal is received by this Court under section 35 of U.P. Re- organization Act, 2000 (Central Act No. 29 of 2000) for its disposal. Leave to appeal was granted and appeal was admitted by this Court. 6. Before further discussions, we think it just and proper to mention the ante mortem injuries recorded by PW-5 Dr. P.K. Bhatnagar on 27.08.1993 after conducting the post mortem examination of the dead body of the Raj Kumar (son of Om Prakash) in autopsy report (exhibit A-3). The same is being reproduced below:- “ Punctured wound 2cm x 1cm x cavity deep just above upper border of the left lower rib on lateral side of the chest. 9cm away from 5 umbilicus at 2O’ clock position with surgical dressing”. The medical officer found that deceased had died due to shock and haemorrhage as a result of ante mortem injuries. The evidence of PW-5 Dr. P.K. Bhatnagar read with autopsy report (exhibit A-3) establishes on record that Raj Kumar (son of Om Prakash), died a homicidal death. The above medical evidence is further corroborated by PW-8 Dr. S.K. Prabhakar who recorded the injuries on person of Raj Kumar at 08.45 a.m. on 27.08.1993 when said injured was brought to the hospital. The corresponding injury on the person of Raj Kumar is shown in the injury report (exhibit A-20) showing a stab wound 2.5cm x 1cm (depth not proved) on the left side of the abdomen, 11cm away from umbilicus at 2 O’clock position. PW-8 Dr. S.K. Prabhakar has mentioned in his report that the injury was fresh and caused by sharp edged object and the nature of the injury was grievous. The patient was hospitalized. The medical officer has further proved injury on the person of PW-4 Omwati which is recorded in exhibit A-21. According to this Medical Officer at about 09.50 a.m. of 27.08.1993, he examined the injury on the person of PW-4 Omwati. According to this witness, she had suffered one lacerated wound 7.0cm x 0.5 cm x scalp deep on the left side of the head, 10cm above left ear, bleeding fresh. He kept injury under observation and advised for X-ray. 7. In the above circumstances, Omwati (PW-4) is star eye witness of the case. She has stated that on the day of the incident, a tape-recorder was on in her house when her neighbours namely accused Surjeet, Deepak and Sitarani entered in their house and 0bjected to playing tape-recorder 6 loudly. The complainant-Ram Kumar and Raj Kumar (deceased) had altercations with the accused whereafter accused respondents Deepak and Surjeet went to their house and came out with swords in their hands. The witness has further stated when Surjeet attempted to cause injury with the sword, Krishan Kumar intervened. However, Surjeet succeeded in giving blow with the butt of the sword on her head. This witness has further stated that accused Deepak inflicted wound with sword in his hand on the person of Raj Kumar. The testimony of injured eye witness PW-4 Omwati is corroborated by the statements of other eye witnesses namely PW-1 Babu Ram, PW-2 Ram Kumar and PW-3 Kalu Ram as to the inflicting of injury with the sword on the person of Raj Kumar by accused respondent Deepak. The evidence of four eye witnesses is consistent and natural. It was day light incident. The presence of Ram Kumar (PW-2) and injured Omwati (PW-4) in their house can not be doubted. As to the presence of other two eye witnesses namely PW-1 Babu Ram, PW-3 Kalu Ram, it has been explained by prosecution that since they used to go for work along with Krishan Kumar for their work and had come to his house at the time of incident. In our opinion, in these circumstances, presence of the PW-1 Babu Ram, PW-3 Kalu Ram too can not be doubted at the place of incident. Therefore, as far as commission of murder of Raj Kumar by accused respondent Deepak is concerned, we are of the view that prosecution has successfully proved said charge as against him. However, as to the common intention of the part of Sitarani and Surjeet, the evidence on record is not sufficient to hold them guilty of charge of commission of murder with common intention with Deepak. 7 8. As against accused respondent Sitarani, prosecution has assigned her role of inflicting the injury on the head of Omwati but the injury is said to have been caused by the blunt side, and there is only single injury on her head which was not proved to be grievous in nature. That being so, we are of the view that as against Sitarani, the prosecution has proved only charge of offence punishable section 324 of IPC and other two accused said to have had no common intention with her. 9. For the reasons as discussed above, we are of the view that charge of the commission of murder of Raj Kumar is proved beyond all reasonable doubt as against accused respondent Deepak, and that of offence punishable under section 324 IPC as against Sitarani. But as against Surjeet, it can not be said that any of the charge proved against him beyond reasonable doubt. As to the recovery of sword on the pointing out of accused Surjeet, the Investigating Officer has not appeared to depose to support the prosecution case. PW-6 Raj Kumar (son of Mangal Sen) who is said to have been witness of recovery has stated in the cross examination that the weapon produced in the court was not the one which was recovered. Having gone through the impugned judgment and order passed by the trial court we find that trial court has erred in law in ignoring the natural testimony of the eye witnesses, and given too much importance to the minor lapses on the part of the Investigating Officer. 10. Therefore, this appeal deserves to be partly allowed. Accordingly, the appeal is partly allowed. Impugned Judgment and order dated 13.05.1998 passed by the 8 Additional Sessions Judge, Roorkee in Sessions Trial No.29 of 1994, so far as it relates to the accused respondents Deepak and Sitarani, is set aside. The impugned judgment and order so far as it relates to accused Surjeet is affirmed. Accused Deepak is convicted under section 302 IPC and accused respondent Sitarani is convicted under section 324 IPC. 11. After hearing on sentence, accused Deepak is sentenced to imprisonment for life under section 302 IPC. Accused Sitarani is sentenced to period already spent by her in jail during the investigation and trial. Accused Surjeet and Sitarani are on bail. They need not surrender. Their sureties are discharged. Accused Deepak is also on bail, his bail is cancelled. He shall be taken into custody forthwith by the trial court to serve out the sentence awarded by this Court. Let a copy of this order along with lower court record be sent to trial court to make accused respondent Deepak serve out the sentence. (Nirmal Yadav, J.) (Prafulla C. Pant) JKJ 30.08.2010