Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 194 of 2003 M akhan Singh and others ...…………. Appellants Versus State of Uttarakhand ...…………. Respondent Mrs. Pushpa Joshi, Sr. Advocate assisted by Mr. G.C. Lakhchaura, Advocate for appellants No. 1 and 2. Mr. S.K. Agarwal, Sr. Advocate assisted by Mr. S.K. Chaudhary, Advocate for appellant No. 4. Mr. Amit Bhatt, Addl. Govt. Advocate for the State. Mr. Navneet Kaushik and Mr. Gopal K. Verma, Advocates for the complainant. JUDGMENT Coram : Hon’ble Barin Ghosh, C. J. Hon’ble U.C. Dhyani, J. Per: U.C. Dhyani, J. This appeal, preferred under Section 374 of the Code of Criminal Procedure, 1973 (for short Cr.P.C.), is directed against the judgment and order dated 27.06.2003, passed by Addl. Sessions Judge / III F.T.C., Nainital in Sessions Trial No. 51 of 2000, whereby accused / appellant Sanjay Singh is convicted under Section 302 read with Section 34 of Indian Penal Code, 1860 (hereinafter referred as I.P.C.) in Sessions Trial No. 51 of 2000, and sentenced to imprisonment for life. He is further convicted under Section 25 of the 2 Arms Act, 1959 (in Sessions Trial No. 52 of 2003), and sentenced to simple imprisonment for a period of six months. The other three accused / appellants Makhan Singh alias Tara Singh, Santosh Singh (since deceased) and Kishan Singh have been convicted under Section 302 read with Section 34 of I.P.C., and each one of them has been sentenced to imprisonment for life. During the pendency of this appeal, accused / appellant Santosh Singh is reported to have died, and therefore, appeal filed on his behalf stands abated. 2. Heard learned counsel for the appellants, learned Addl. Government Advocate for the State, and learned counsel for the complainant and perused the lower court record. 3. Prosecution story, in brief, is that accused / appellant Sanjay Singh and his father accused / appellant Santosh Singh are both residents of village Lalitpur, police station Ramnagar, District Nainital. Accused / appellant Kishan Singh is father of accused / appellant Makhan Singh alias Tara Singh and both are residents of village Beria, police station Ramnagar. Sitaram (deceased) was resident of Shaktinagar, T.V. Tower, police station Kashipur, District Udham Singh Nagar. Murari Lal (informant) is son of Sitaram (deceased). Before the date of incident, Sitaram (deceased) had deposed against accused / appellant Kishan Singh in a criminal case going on between 3 accused / appellant Kishan Singh and one Ram Charan. There was some land dispute between one Dharnidhar Sharma and accused / appellant Santosh Singh. Accused / appellant Santhosh Singh had a grudge against Sitaram (deceased) that he had aligned with Dharnidhar Sharma and used to help him. Before the date of incident Sitaram (deceased) had taken a field on contract from one Medha Singh and planted sugarcane on said field in partnership with Dalveer Singh and Gurdayal Singh. On 01.01.1999, in the afternoon, after harvesting, the sugarcane was being loaded in a tractor trolley. The driver of the tractor Balbir Singh and owner of the tractor Gurdayal Singh were also present on the field. At 12:30 P.M., accused / appellants Kishan Singh, Makhan Singh alias Tara Singh, Santosh Singh (since deceased) and Sanjay Singh along with their associates came on the field. Accused / appellant Kishan Singh, armed with ballam; accused / appellant Sanjay Singh, armed with a gun; accused / appellant Makhan Singh alias Tara Singh, armed with lathi; and accused / appellant Santosh Singh, armed with tabal (a sharp heavy edged weapon) started abusing Sitaram and rushed to assault him, on which Sitaram started running in order to save himself. All the accused / appellants followed him upto 100 meters, and after surrounding him, assaulted Sitaram with the weapons they were carrying. Sitaram fell down on the ground in injured condition. By the time people from neighbourhood assembled there, the assailants after firing, fled from the 4 scene of occurrence. After receiving information about the incident from Dalvir Singh, Murari Lal reached the place of incident. Sitaram was taken to the hospital, where he was declared brought dead. The first information report (Ext. Ka-1) of the incident was lodged by Murari Lal, son of Sitaram (deceased), with police station, Ramnagar, on 01.01.1999 i.e. on the same day of incident. 4. The police took the dead body in their possession, and prepared inquest report (Ext. Ka-2) and other necessary papers, and the dead body was sent in a sealed cover for postmortem examination. The postmortem examination was conducted by Dr. S. Ahmed (P.W.5) on 02.01.1999, at 11:00 A.M., who prepared autopsy report (Ext. Ka-4). The Medical Officer found three ante mortem injuries including the gunshot injury on the body of the deceased, and opined that the deceased had died of shock and haemorrhage as a result of ante mortem injuries. The investigation was taken up by P.W. 7 Station House Officer Room Singh Yadav. All the four accused / appellants were arrested on 03.01.1999. A country made pistol of 315 bore (Ext. I) with two live cartridges (Ext. II and Ext. III) were recovered from accused / appellant Sanjay Singh. A memorandum of recovery (Ext. Ka-3) was got prepared in the presence of the witnesses. After completing the investigation, charge sheet (Ext. Ka-16) was filed against the accused / appellants Kishan Singh, Makhan 5 Singh alias Tara Singh, Santosh Singh and Sanjay Singh, relating to offences punishable under Section 302 of I.P.C. A separate crime relating to offence punishable under Section 25 of the Arms Act was registered after recovery of the country made pistol from accused Sanjay Singh, which was also investigated, and a separate charge sheet (Ext. Ka-19) was filed after obtaining necessary sanction (Ext. Ka-8) from the District Magistrate, Nainital, in respect of said offence. After interrogating the witnesses, and on completion of investigation, the Investigating Officer submitted both the charge sheets (Ext. Ka-16 and Ext. K-19) against the accused Makhan Singh alias Tara Singh, Kishan Singh, Santosh Singh and Sanjay Singh, for their trial in respect of offences punishable under Section 302 of I.P.C., and one relating to offence punishable under Section 25 of the Arms Act, against accused Sanjay Singh. 5. The Magistrate, on receipt of both the charge sheets, after giving necessary copies to the accused, as required under Section 207 of Cr.P.C., committed the case to the court of sessions for trial. Learned First Addl. Sessions Judge, Nainital on 12.07.2000, after hearing the parties, framed charge for the offence punishable under Section 302 read with Section 34 of I.P.C., and another charge of offence punishable under Section 25 of the Arms Act against the accused / appellant Sanjay Singh, who pleaded not guilty and 6 claimed to be tried. The other three accused / appellants were charged for the offence punishable under Section 302 read with Section 34 of I.P.C., and they too pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W.1 Murari Lal (informant and son of the deceased); P.W.2 Hari Om (witness of preparation of inquest report); P.W.3 Gurdayal Singh (eyewitness); P.W.4 Constable Arun Kumar (witness of preparation of recovery memo); P.W.5 Dr. S. Ahmed (who conducted the postmortem examination); P.W.6 Dalvir Singh (another eyewitness); P.W. 7 Station House Officer Room Singh Yadav (Investigating Officer) and P.W.8 Sub Inspector Rajaram Gupta (who investigated the case relating to 25 Arms Act, and submitted subsequent chargesheet). 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 stated that they have been falsely implicated in the crime. No evidence in defence was adduced on behalf of the accused. The trial court, after hearing the parties, found accused / appellant Sanjay Singh guilty of charge of offence punishable under Section 302 of I.P.C., and one punishable under Section 25 of the Arms Act. It further found remaining three accused, namely Makhan Singh alias Tara Singh, Kishan Singh and Santosh Singh guilty of offence punishable under Section 302 read with Section 34 of I.P.C. After hearing the parties, the trial court sentenced convict Sanjay Singh to 7 imprisonment for life under Section 302 / 34 of I.P.C., and simple imprisonment for a period of six months under Section 25 of the Arms Act. Each one of the remaining accused, namely Makhan Singh alias Tara Singh, Kishan Singh and Santosh Singh was also sentenced to imprisonment for life under Section 302 read with Section 34 of I.P.C. Aggrieved by said judgment and order dated 27.06.2003, the convicts preferred this appeal. 6. Before proceeding for further discussion, we think it just and proper to mention here the ante mortem injuries found on the body of deceased Sitaram by P.W. 3 Dr. S. Ahmed, on 02.01.1999, at 11:00 A.M., who prepared the autopsy report (Ext. Ka-4). The same are being reproduced below: i) Firearm wound of entry 1.25 cm X 1 cm, communicating to injury No. (ii) on he right side face just outer and below the right eyebrow. Margins of wound are inverted. Blackening and tattooing present around the margins of wound. ii) Firearm wound of exit 3 cm X 3.5 cm on he occipital region of head, communicating to injury No. (i). Margins of wound are everted and lacerated. iii) Contusion 2.5 cm X 3 cm on the right cheek, 2 cm in front of right ear. 8 iv) Incised wound 6 cm X 2 cm X scalp deep on the top of head, 9.5 cm above the bridge of nose. v) Lacerated wound 2 cm X 2cm on the pinna of right ear. vi) Blackening of left upper eyelid present. The Medical Officer opined in the autopsy report that deceased had died of shock and haemorrhage as a result of ante mortem injuries. 7. To re-visit FIR in order to appreciate the role assigned to the accused persons, it would be worthwhile to mention here that two fathers and two sons are allegedly involved in the crime. Kishan Singh (father), his son Makhan Singh; Santosh Singh (father) and his son Sanjay Singh is the combination of father-son duo. The first combination had ballam and lathi, second combination had tabal and firearm in their hands. Kishan Singh inflicted injuries on the victim with ballam, Makhan Singh with lathi, Santhosh Singh inflicted injuries on the victim with tabal and Sanjay Singh fired at Sitaram resulting into his death. 8. The witnesses cited in the FIR are Dalvir Singh and Gurdayal Singh. The incident which took place on 01.01.1999 at 12:30 P.M. was reported to the police station, Ram Nagar on 01.01.1999 at 04:45 P.M. The distance between the place of occurrence and the police 9 station is about 15 kilometers, hence there appears to be no delay in lodging the FIR. 9. Learned Additional Sessions Judge in his judgment has mentioned the contents of FIR and has said that the informant Murari Lal who happens to be the son of the deceased, got the report ((Ext. Ka-1) typed and it was handed over at police station Ram Nagar. The FIR contains the names of all the accused persons along with their parentage. He is not the eyewitness. The typing mistake which occurred in FIR is as regards gun / countrymade pistol. The fact is that accused Sanjay Singh had countrymade pistol in his hands whereas in the FIR the gun has been mentioned in his hands. Learned Additional Sessions Judge has attributed this error as a typing mistake. 10. Elaborating on the ocular testimony of P.W.3 Gurdayal Singh and P.W.6 Dalvir Singh, the learned trial court has commented upon that there appears to be no reason as to why P.W.3 Gurdyal Singh will tell a lie against the accused persons. It has also turned down the suggestion of the defence that this witness was under the influence of son of deceased Sitaram. Learned Addl. Sessions Judge has mentioned that P.W.6 Dalvir Singh is the grandson of P.W.3 Gurdayal Singh. He also does not have any enmity with the accused persons. His testimony cannot be brushed aside only on the ground that he had harvested sugarcane crop with 10 deceased Sitaram. The oral testimony of P.W.3 Gurdayal Singh and P.W.6 Dalvir Singh has been corroborated by the medical evidence of P.W. 5 Doctor S. Ahmed, who has also made clear that the death of the deceased Sitaram is possible on 01.01.1999 at 12:30 P.M. and can be sustained by firearm, tabal and lathi, according to the trial court. 11. Learned Addl. Government Advocate has submitted that accused / appellant Makhan Singh is the son of accused Kishan Singh. He is named in the FIR. He is stated to have lathi in his hands. His father had enmity with the deceased Sitaram. Sitaram had deposed against Kishan Singh. P.W.3 Gurdayal Singh and P.W.6 Dalvir Singh have deposed that there was lathi in the hands of the accused Makhan Singh. Injury Nos. (iii) & (v) in the post-mortem report suggests blow of lathi on the body of the deceased, therefore, his participation in the crime is more than proved. Learned Addl. Government Advocate has also submitted that it is true that post-mortem report (Ext. Ka-4) does not indicate any injury inflicted by ballam. Since this accused has shared common intention with other accused, therefore, even if it is conceded for the sake of arguments that there was no blow of ballam on the body of the deceased, that itself will not absolve Kishan Singh of his criminal liability. It is not necessary that every blow inflicted upon the victim must indicate the injury. It is also possible that the blow 11 of ballam might not have hit the victim. But the fact remains that all the four accused were in inimical terms with the deceased Sitaram. They came to the place of occurrence only with this intention of eliminating Sitaram, as they had enmity with Sitaram and therefore, they shared the common intention. Therefore, the prosecution story against accused / appellant Kishan Singh is also proved under Section 302 / 34 of I.P.C. 12. It is also submitted by learned Addl. Government Advocate that accused Sanjay Singh is son of Santosh Singh and is named in the FIR. The witnesses have deposed against him saying that he had a countrymade pistol. Firearm injury was found on the body of Sitaram. The Investigating Officer found empty shell at the place as shown in the site plan. When the accused Sanjay was arrested a countrymade pistol of 315 bore and two cartridges were found in his possession. The ballistic expert report (Ext. Ka-21) suggests that the empty shell was used in this countrymade pistol which was recovered from the possession of accused Sanjay Singh. It is further submitted that accused / appellant Santosh Singh is father of the accused Sanjay Singh, who is also named in the FIR. The testimony of P.W.3 Gurdayal Singh and P.W.6 Dalvir Singh confirms the presence and participation of this accused in the crime, who had used tabal in order to perpetrate the crime. The post-mortem report (Ext. Ka-4) also suggests that injury no. (iv) is 12 inflicted by tabal. Therefore, the prosecution story against this accused also stands proved beyond reasonable doubt. Thus, there is evidence of two disinterested witnesses supported by the medical evidence. They are named in the FIR, the occurrence took place during day hours, accused persons had enmity with the deceased, informant was not present on the spot, P.W.3 Gurdayal Singh and P.W.6 Dalvir Singh had no grudge against the accused persons so as to indicate their false implications. All the accused persons were known to the witnesses before this incident had taken place. There is every reason to believe that the accused and the accused persons only have committed this heinous crime. The motive to commit the murder is also there. There is no material inconsistency in the oral testimony of the witnesses. Minor variations here and there, as indicated by the learned counsel for the accused / appellants, are natural variations and are bound to occur in the oral testimony. All the more the same confirms the fact that they were not tutored witnesses. FIR is also not unreasonably delayed, so as to create doubt on the authenticity of its contents. 13. Lastly, learned Addl. Government Advocate also contended that since P.W.1 Murari Lal (informant and son of the deceased) has disclosed at page No. 3 of his cross-examination in fourth paragraph that informant’s father had disclosed him that he (father) 13 had deposed against Kishan Singh and in favour of Ram Charan Singh and P.W. 6 Dalvir Singh has stated in his cross-examination at page 11 that Sitaram and accused persons were inimical to each other because Sitaram had deposed against them in a land dispute, therefore, there was sufficient reason (motive) with the accused persons to have inflicted blows on the victim, which ultimately resulted into his death. It is to be noted here that enmity is a double-edged weapon. If there is motive for the accused persons to have committed murder of Sitaram there is every possibility that Sitaram and his associates might also falsely implicate the accused persons. 14. It is contended by the learned counsel for the accused / appellants that there is variation as regards gun / countrymade pistol in the FIR and ocular evidence. The informant, in his oral testimony before the court, has stated that the accused Sanjay Singh was armed with countrymade pistol. It appears that the prosecution has improved upon the informant’s version. 15. Accused / appellant Santosh Singh is said to have tabal in his hands, whereas in the cross- examination he has stated that it is very difficult to say whether accused Santosh Singh had tabal or ballam in his hands (both are sharp edged weapons). When P.W.3 Gurdayal Singh entered into the witness box on 10.07.2011, he has stated that Santosh Singh was 14 having tabal. Two years hence, when he came for cross- examination, he said that Santosh Singh was having ballam. 16. The informant got the incident typed written and then signed over the paper. It was not necessary for the prosecution to have produced the person who had typed the letter addressed to the police. The evidence of scribe was not necessary. No doubt, there has been some delay in sending the empty shell and countrymade pistol to Forensic Science Laboratory, Agra, but that is hardly a fact to be reckoned with in favour of the accused persons. 17. The FIR is not ante timed, in as much as the police which came on the spot immediately after the incident took place belongs to chowki Peerumadara and that is why the police met P.W.3 Gurdayal Singh and P.W.4 Constable Arun Kumar (witness of preparation of recovery memo) on the spot when the informant was coming back from Sher Singh’s house. The case was registered at police station Ram Nagar. 18. Another argument advanced on behalf of the accused / appellants is that they have been falsely implicated because of Dharnidhar Sharma. It is amply clear from the statement of P.W.1 Murari Lal that a dispute of land between Dharnidhar Sharma and accused Santosh Singh was pending. Criminal cases 15 between them were also instituted. General Diary (Ext. Ka-6) has also mentioned that Dharnidhar Sharma also accompanied the informant Murari Lal to the police station for lodging the FIR. P.W.1 Murari Lal has admitted friendship between his father and Dharnidhar Sharma and on account of this relationship Dharnidhar Sharma accompanied his friend Murari Lal who had lost his father. Possibility of naming the accused at the instance of Dharnidhar Sharma cannot be ruled out. 19. Yet another argument advanced by the learned counsel for the accused / appellants was that Medha Singh has not been produced in evidence. It is alleged that Medha Singh’s field was taken by the deceased Sitaram on contract. It was desirable for the prosecution to have produced Medha Singh as a witness. 20. It was also contended on behalf of the accused/ appellants that there is no independent witness to show that it was Nishan Singh’s field. This fact is not in issue and therefore, the same omission has no bearing on the merits of the case. 21. It was also argued upon that no witness of the vicinity has been produced by the prosecution. We are of the view that since two witnesses who have been produced by the prosecution are found wanting in trust 16 and confidence, and therefore, it needed support from the people of vicinity. 22. Yet another point raised on behalf of the accused / appellants is that witness Shamsher Singh has also not been produced in evidence. Shamsher Singh’s name came into the light when P.W.3 Gurdayal Singh and P.W.6 Dalvir Singh went to Shamsher Singh to inform the son of the deceased on telephone. Shamsher Singh’s telephone was used by P.W.6 Dalvir Singh to make Murari son of deceased Sitaram aware about this incident. This argument has substance that had Shamsher Singh been examined his evidence would have carried weight under section 6 of the Indian Evidence Act. 23. Learned counsel for the accused / appellants has also placed the ruling of the Hon’ble Supreme Court in the case of Vadivelu Thevar vs. State of Madras AIR 1957 SC 614, in which it was observed as follows : “The Indian legislature has not insisted on laying down any such exceptions to the general rule recognized in S. 134, which by laying down that “no particular number of witnesses shall, in any case, be required for the proof of any fact” has enshrined the well recognized maxim that “Evidence has to be weighed and not counted”. ……………………. Generally speaking oral testimony in this context may be classified into three categories, namely (1) wholly reliable (2) wholly unreliable and (3) neither wholly 17 reliable nor wholly unreliable. In the first category of proof, the Court should have no difficulty in coming to its conclusion either way- it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the Court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The Court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony.” This judgment is relevant for the case, as would be evident from discussions hereafter. 24. The rulings of Dinesh & another vs. State of Haryana, 2002 (44) ACC 199 SC and Smt. Bimla Devi vs. State of Haryana, 2003 (46) ACC 990 SC were also referred to by the learned counsel for the accused persons to show that the prosecution story is falsified on grounds, inter alia, that the prosecution evidence is silent on the injury of ballam. The cause of death is firearm injury and therefore, testimony of the prosecution witnesses is contrary to the medical evidence. All the four accused are alleged to have used their weapons. We are of the view that in the background of the facts and ocular evidence produced 18 therein, the argument holds water and helps the appellants. 25. Emphasis was also laid on the point that the labourers, who were harvesting the crop, have also not been produced. This argument carries weight and hence goes in favour of the accused in as much as the testimony of two witnesses thus produced could not inspire confidence. 26. One of