1 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Jail Appeal No. 129 of 2004 Amar Singh Rawat S/o Shri Gopal Singh Rawat R/o Village Bahman Wala P. S Kotwali, Patel Nagar Dehradun …....... Appellant(In jail) Versus State of Uttarachal (Uttarakhand) ……….Respondent Shri Swapnil Bisht, Advocate, ( Amicus Curiae), present for the appellant Shri B.S.Parihar, Brief Holder present for the State. Coram: Hon’ble Prafulla C. Pant, J. Hon'ble Nirmal Yadav, J. Oral: Hon'ble Prafulla C.Pant, J. This appeal, preferred under section 374 of Code of Criminal Procedure, 1973, (for short Cr.P.C.) [received through Superintendent 2 District Jail Dehradun], is directed against the judgment and order dated 18.03.2004 passed by Second Additional Sessions Judge, Dehradun, in Sessions Trial No. 110 of 2003, whereby said court has convicted the accused/appellant Amar Singh Rawat under section 302 Indian Penal Code, 1860 (for short I.P.C), and under section 25/4 Arms Act, 1959. The convict has been sentenced to imprisonment for life and directed to pay fine of ` 5,000/-(under section 302 I.P.C), and rigorous imprisonment for a period of one year and directed to pay fine of ` 1,000/- (under section 25/4 Arms Act, 1959). (2) Heard learned Amicus Curiae for the appellant and learned Brief Holder for the State. (3) Prosecution story, in brief, is that on 25.04.2003, PW1 Ashok Kumar (complainant) along with his brother Sanjeev Kumar (PW5) and his mother Savitri Devi (deceased) were grazing there she buffaloes near Majra bypass. At about 6 pm, their neighbour Amar Singh Rawat (accused/appellant) armed with KHUKRI 3 (Sharp edged weapon) came there and alleged that Savitri Devi had an evil eye on the buffaloes of the accused due to which they dont give sufficient milk. Thereafter accused Amar Singh Rawat assaulted on the neck of Savitri Devi with KHUKRI and injured her. When PW1 Ashok Kumar and PW5 Sanjeev Kumar rushed to apprehend accused Amar Singh Rawat, he escaped with the weapon. Immediately the two brothers took their mother, to a near by hospital from where she was referred to CMI Hospital, Dehradun. Said hospital further referred the injured to Jolly Grant Hospital, but Savitri Devi succumbed to the injuries on his way to said hospital. Thereafter, PW1 Ashok Kumar, at about 10.30, am on 25.04.2003, lodged First Information Report ( Ex-A1) at the police out post, Patel Nagar. On the basis of said report Crime No. 38 of 2003 at the outpost and ( Crime No. 244 of 2003 at the police station kotwali) was registered against the accused/appellant Amar Singh Rawat relating to offence punishable under section 302 I.P.C. The investigation was taken up by PW8 Station House Officer Om 4 Prakash Singh. The Investigating Officer took the dead body of the deceased in his possession on 26.04.2003, and prepared the inquest report (Ex- A2) . He further got prepared other necessary papers, e.g. police form no. 13 (Ex- A10), sketch of dead body (Ex-A11), letter to Chief Medical Officer ( Ex -A12) for post mortem examination, and also prepared sample seal ( Ex- A14). The dead body of Savitri Devi was sent for post mortem examination . PW4 Dr. P.C.Kapari conducted post mortem examination on the dead body of the deceased on 26.04.2003, at 2.30 pm. He recorded ante mortem injuries including the two incised wounds on the neck of the deceased. He opined that the deceased had died due to shock and hamorrhage, as a result of ante mortem injuries. On the very day the Investigating Officer succeeded in arresting the accused/appellant Amar Singh Rawat and on his pointing out recovered the KHUKRI (knife) used in the crime. The recovery memo (Ex-A3) was prepared on 26.04.2003 in the presence of the witnesses . The blood stained soil and simple soil were taken from the place of incident and the 5 articles including the knife were sent to the Forensic Science Laboratory for examination. After inspection of the spot, site plans were prepared of the place of incident, and the place from where the recovery of the weapon was made. After completion of the investigation, the Investigating Officer submitted charge sheet (Ex A19) against the accused/appellant Amar Singh Rawat, for his trial in respect of offence punishable under section 302 I.P.C. (4) On receipt of the chargesheet, the Chief Judicial Magistrate, Dehradun, after giving necessary copies to the accused as required under section 207 of Cr.P.C, appears to have committed the case to the court of Sessions for trial. The trial court, on 14.08.2003, after hearing the parties framed charge of offence punishable under section 302 I.P.C., and also relating to offence punishable under section 25/4 Arms Act, 1959. Accused Amar Singh Rawat, pleaded not guilty and claimed to be tried. On this, prosecution got examined PW1 Ashok Kumar (complainant and eye witness), PW2 Daya Ram, 6 (witness of recovery of weapon), PW3 Uma Shankar Kukreti (another witness of recovery of weapon), PW4 Dr. P.C.Kapari (who conducted the post mortem examination), PW5, Sanjeev Kumar (eye witness of the incident), PW6 Constable Raj Kumar ( who prepared the check report of First Information Report), PW7 Constable Joginder Singh ( who gave evidence relating to sealed condition of the dead body), and PW8 Om Prakash Singh (Investigating Officer). Oral and documentary evidence was put to the accused, under section 313 Cr.P.C., in reply to which he alleged that the allegations against him are false, but he admitted that the complainant is his neighbour. However, no evidence in defence was adduced. The trial court after hearing the parties, found accused Amar Singh Rawat guilty of charge of offence punishable under section 302 I.P.C., and one punishable under section 25/4 Arms Act, 1959. After hearing on sentence, the trial court sentenced the convict Amar Singh Rawat to imprisonment for life and also directed to pay fine of `. 5,000/- under section 302 I.P.C., and 7 rigorous imprisonment for a period of one year to directed to pay fine of ` 1,000/- under section 25/4 Arms Act, 1959. Aggrieved by said judgment and order dated 18.03.2004, passed by second Additional Sessions Judge, Dehradun, in Sessions Trial No. 110 of 2003, this appeal was got sent to this court by the convict through the Superintendent of District Jail, Dehradun. (5) Before further discussion, we think it just and proper to mention the ante mortem injuries recorded by the Medical Officer PW4 Dr. P.C.Kapari in the autopsy report (Ex -A5) after conducting the post mortem examination. The ante mortem injuries found on the dead body of Savitri Devi are reproduced from the autopsy report as under:- (i) Incised wound on left side of the neck size 10cm x 7cm x bone deep. Beneath the injury carrotet artillery and the survical vertebra found cut. (ii) Incised wound on chin 3cm above injury no.1, size 4cm x 2cm x tissue deep. 8 (iii) Contusion on back of left shoulder size 4cm x 4cm purple emychosis. (iv) Incised wound 2cm x 1cm x muscle deep on the right side neck lying obliquely 5cm from the tip of chin. The Medical Officer (Dr. P.C. Kapari) has stated that the deceased (Savitri Devi) had died due to shock and hamorrhage as a result of ante mortem injuries. The Medical Officer further stated in his testimony that the injury could have been caused on 25.04.2003, at about 6 pm. The evidence of the Medical Officer read with the autopsy report clearly establishes on the record that Savitri Devi had died homicidal death . Now, we have to see whether the prosecution has successfully proved charge of offence punishable under section 302 I.P.C against accused/appellant Amar Singh Rawat as found by the trial court or not. (6) PW1 Ashok Kumar, complainant, is son of the deceased who was accompanying her along with his brother Sanjeev Kumar ( PW5) at the 9 time of grazing their buffaloes. He has stated that on 25.04.2003, near Majra bypass at about 6 pm, accused Amar Singh Rawat, armed with a KHUKRI, came and alleged that Savitri Devi keeps evil eye on his she buffaloes due to which they have stopped giving milk. Thereafter, he assaulted on the neck of Savitri Devi with KHUKRI. PW1 Ashok Kumar further states that his mother, after suffering injuries fell down. He has further stated that the accused assaulted twice/thrice on the neck of the deceased. The witness further narrates that thereafter accused succeeded in running away with KHUKRI . PW1 Ashok Kumar has stated that after the incident he took his mother immediately to Peshin Hospital from where the injured was referred to CMI Hospital, and where after she was referred to Jolly Grant Hospital. The witness further narrates that on the way to Jolly Grant Hospital injured Savitri Devi succumbed to the injuries received by her. The witness has further narrated that First Information Report ( Ex -A1) got lodged by him with the police outpost, Patel Nagar. 10 (7) The statement of PW1 Ashok Kumar gets corroborated from the statement of PW5 Sanjeev Kumar another eye witness of the incident. He is also son of the deceased. He has also stated that he along with his brother Ashok Kumar and Savitri Devi, was grazing she- buffaloes when the incident took place and accused Amar Singh Rawat gave blows with KHUKRI on the person of his mother (Savitri Devi). Testimony of both these eye witnesses get corroboration from the Medical evidence on record as discussed above. (8) PW2 Daya Ram and PW3 Uma Shankar Kukreti have stated that in their presence, on 26.04.2003 on pointing out of accused Amar Singh Rawat, the police recovered KHUKRI, and recovery memo ( Ex-A3) was prepared . They have further stated that blood stained soil and simple soil were also taken by the police and necessary recovery memorandum was prepared. (9) PW6 Constable Raj Kumar is a formal witness who has stated that on receipt of a First 11 Information Report ( Ex- A1), he prepared the check report. PW7 Constable Joginder Singh has stated that after the incident, the dead body of Savitri Devi was kept in sealed condition till it was handed over for post mortem examination. (10) Report of the Forensic Science Laboratory is (Ex-A20) on the record shows that the blood stained soil and the KHUKRI sent for examination, contained human blood. (11) The oral testimony given by PW1 Ashok Kumar and PW5 Sanjeev Kumar read with the medical evidence and other evidence on record clearly establishes on the record that accused/appellant Amar Singh Rawat committed murder of Savitri Devi on 25.04.2003. (12) On behalf of the appellant learned Amicus Curiae submitted that PW1 Ashok Kumar and PW5 Sanjeev Kumar are brothers , and sons of the deceased, as such the evidence given by them can not be relied upon. Having reassessed the evidence on record , we are of the 12 view that merely for the reasons that the two eyewitnesses are related to the deceased , their testimony can not be disbelieved. What is material is there natural presence at the spot. Admittedly the accused and deceased are neighbours. The presence of sons of the deceased with her at the place of incident is natural and can not be doubted. (13) It is also contended on behalf of the appellant that the First Information Report is a delayed one. It is true that the incident had taken place at 6 pm on 25.04.2003, and the First Information Report was lodged at 10.30 pm on that day. The distance between the police outpost and place of incident is only two kilometers. But the prosecution has successfully explained that the two eyewitnesses Ashok Kumar (PW1) and Sanjeev Kumar (PW5) were more concerned to save life of their mother, who was taken from one hospital to another, before she succumbed to injuries on her way to Jolly Grant Hospital. Considering the facts and circumstances, delay in lodging the First Information Report since 13 explained, does not create any doubt in the prosecution story, in the present case. (14) Lastly, it is argued that an application was moved on behalf of the accused before the trial court under section 311 of Cr.P.C for summoning a witness Ravindra Gupta, which was wrongly rejected by the trial court. We have gone through said application and order passed by the trial court. We are of the opinion that the application has been rejected by the trial court after recording sufficient reasons there for. (15) For the reasons as discussed above, we do not find force in this appeal, which is liable to be dismissed. The appeal is dismissed. Conviction and sentence recorded against the accused/appellant Amar Singh Rawat, by the trial court in respect of offence punishable under section 302 I.P.C., and that of offence punishable under section 25/4 Arms Act, 1959, is affirmed. The trial court record be sent back. Let a copy of this judgment be sent to the Superintendent of the jail concerned where the accused/appellant is 14 serving out the sentence awarded against him. (Nirmal Yadav, J.) (Prafulla C. Pant, J.) 22.10.2010 Nahid