IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 819 of 2001 (Old No. 647 / 2000) 1. Baisakhu S/o Sri Madiya 2. Darshan Lal S/o Sri Madiya Both resident of Village Bareth, Patti Bhandarsuen, Tehsil Dunda, District Uttarkashi. ...…………. Appellants Versus State of U.P. (now State of Uttarakhand) ...…………. Respondent Mr. Jitendra Chaudhary, Advocate, and Mr. Vinod Sharma, Advocate, present for the appellant Baisakhu. Mr. Amit Bhatt, Addl. Govt. Advocate, present for respondent State. Along With Criminal Appeal No. 910 of 2001 (Old No. 664 / 2000) Jaibir Singh S/o Sri Chatar Singh Resident of Village Bareth, Patti Bhandarsuen, Tehsil Dunda, District Uttarkashi. 2 ...…………. Appellant Versus State of U.P. (now State of Uttarakhand) ...…………. Respondent Mr N.S. Negi, Advocate and Mr. Dinesh Chauhan, Advocate, present for the appellant. Mr. Amit Bhatt, Addl. Govt. Advocate, present for respondent State. Coram : Hon’ble Prafulla C. Pant, J. Hon’ble V. K. Bist, J. Hon. Prafulla C. Pant, J (oral) These two appeals, preferred under Section 374 of the Code of Criminal Procedure, 1973 (for short Cr.P.C.), are directed against the judgment and order dated 29.02.2000, passed by Sessions Judge, Uttarkashi, in Sessions Trial No. 03 of 1998, whereby appellants Jaibir Singh, Baisakhu and Darshan Lal have been convicted under Section 302 read with Section 34 of the Indian Penal Code, 1860 (for short I.P.C.), and each one of them has been sentenced to imprisonment for life. 3 2) Heard learned counsel for the parties and perused the lower court record. 3) Prosecution story, in brief, is that on 09.10.1997, at about 11:00 P.M., P.W. 2 Aila Devi (informant) was in her house in village Bareth, Tehsil Dunda, District Uttarkashi, with her children and Bharpur Das (deceased). Her doors were knocked by accused / appellant Jaibir Singh, on which she declined to open the door, but Bharpur Das opened the door, and let Jaibir Singh enter in the house. Jaibir Singh on seeing Bharpur Das in the house of the informant took hold of him and crushed him between the door and wall. Meanwhile, other two accused / appellants Darshan Lal and Baisakhu, who were accompanying Jaibir Singh, entered in the house and started giving lathi blows on the person of Bharpur Das. Accused / appellant Jaibir Singh also joined them in the assault. On this, P.W. 2. Aila Devi got frightened and ran away to hide herself. The children of the informant Vinod (P.W. 3) and her sister also got frightened and ran towards the cowshed to take shelter. On the next day morning Aila Devi went to the nearest police outpost Brahamkhal, but the regular police told her that since the incident relates to revenue police area, she should approach the revenue authorities of the area (In Uttarakhand hills vide U.P. Government Notification No. 494 / VIII – 418 –16 dated 7th March 1916, certain revenue officials are given police powers). Thereafter, 4 she went to Patwari of Junga, where she got lodged first information report (Ext. A –2). On the basis of said report, check report (Ext. A –4) was prepared on 10.10.1997, at 03:00 P.M., and Crime No. 05 of 1997 was registered against accused / appellants Jaibir Singh, Darshan Lal, Baisakhu and one Nihal Singh, relating to offence punishable under Section 302 of I.P.C. Investigation was conducted by P.W. 6 Anand Pal, Patwari of the area. He went to the spot took dead body of Bharpur Das in his possession, and prepared inquest report (Ext. A –3) at 04:00 P.M., on the very day (10.10.1997). The Investigating Officer also prepared sketch of the dead body (Ext. A –7), police form No. 13 (Ext. A –8), and letter to the Chief Medical Officer (Ext. A –9). Thereafter, the dead body, in sealed condition, was sent by the Investigating Officer through peon Om Prakash for postmortem examination. P.W. 1 Dr. R.P. Badoni, Medical Officer of District Hospital, Uttarkashi, conducted the postmortem examination on 11.10.1997, and prepared autopsy report (Ext. A –1). He recorded as many as eight injuries found on the scalp, five injuries on face, and four other injuries as ante mortem injuries on the body of the deceased. He also observed on internal examination that there were fractures in the skull bone, in parietal, temporal and occipital regions. Brain matter was coming out, and scalp was lacerated. In the opinion of the Medical Officer, Bharpur Das died of coma, due to head injury. Meanwhile, Investigating Officer interrogated the 5 informant and her son Vinod. He also prepared site plan (Ext. A –6) and interrogated other witnesses. The Investigating Officer moved an application before the Magistrate for getting recorded the statements of the three witnesses, namely Aila Devi, Vinod and Bhajan Lal under Section 164 of Cr.P.C., on which P.W. 7 R.C. Tiwari, the then Sub Divisional Magistrate, Bhatwari, District Uttarkashi, recorded the statements of the three witnesses under Section 164 of Cr.P.C. On completion of investigation, the Investigating Officer submitted charge sheet (Ext. A –14) against four accused, namely Jaibir Singh, Baisakhu, Darshan Lal and Nihal Singh, for their trial in respect of offences punishable under Section 302 and 452 read with Section 34 of I.P.C. 4) It appears that the Chief Judicial Magistrate on receipt of the charge sheet, 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 Sessions Judge, Uttarkashi, on 09.02.1998, after hearing the parties, framed charge of offences punishable under Section 452, 302 read with Section 34 of I.P.C. against all the four accused, including the appellants, in reply to which they pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1 Dr. R.P. Badoni (who conducted postmortem examination); P.W. 2 Aila Devi (informant and eyewitness); P.W. 3 Vinod, aged 11 years (eyewitness and son of the informant); P.W. 4 Bhajan 6 Lal (declared hostile); P.W. 5 Jaiveer Singh Rawat (scribe of the report); P.W. 6 Anand Pal Patwari (who investigated the crime); and P.W. 7 R.C. Tiwari (the then Sub Divisional Magistrate, who recorded statements under Section 164 of Cr.P.C.). The oral and documentary evidence was put to the accused under Section 313 of Cr.P.C., in reply to which they pleaded that evidence adduced against them is false, and they had no knowledge how Bharpur Das got killed. However, they pleaded that they have been falsely implicated in the crime due to enmity. No evidence in defence was adduced on behalf of the accused. The trial court, after hearing the parties, found three of the accused, namely Jaibir Singh, Baisakhu and Darshan Lal (appellants) guilty of charge of offence punishable under Section 302 read with Section 34 of I.P.C. However, the trial court acquitted them of the charge of offence punishable under Section 452 of I.P.C. Fourth accused Nihal Singh was acquitted of the charge relating to offences punishable under Section 302 read with Section 34 and 452 of I.P.C. After hearing on sentence, each one of the convicts, namely Jaibir Singh, Baisakhu and Darshan Lal was sentenced to imprisonment for life. Aggrieved by said judgment and order dated 29th of February 2000, passed by Sessions Judge, Uttarkashi, in Sessions Trial No. 03 of 1998, the convicts preferred these two appeals before the Allahabad High Court, where the two appeals were admitted, and the same were received by this court 7 under Section 35 of the U.P. Re-organization Act, 2000 (Central Act No. 29 of 2000), for their disposal. 5) Before further discussion, this court thinks it just and proper to mention here the ante mortem injuries recorded by P.W. 1 Dr. R.P. Badoni on 11.10.1997, at the time of postmortem examination, which are mentioned in the autopsy report (Ext. A –1). The same are being reproduced below: SCALP: “ i) Horizontal incised wound 5 X 1 cm X bone deep with fracture of skull bone on right half of back of head with outer end 7 cm behind right ear. ii) Horizontal incised wound 3.5 X 0.5 cm X Scalp deep 1 cm above previous injury. iii) Horizontal laceration 5.5 X 1 cm X bone deep fracture of corresponding skull bone on left side of back of head 1.5 cm away from midline. iv) Horizontal laceration over center of head 5 X 0.5 cm X bone deep with fracture of bone in the line of injury. v) Vertical laceration 6 X 1 cm X bone deep with fracture of bone over left side of scalp 4 cm above and behind left ear. vi) Laceration 4 X 1 cm X bone deep, horizontally placed behind upper border of left ear with fracture of skull bone. 8 vii) Triangular wound of 1.5 cm X bone deep with fracture of bone over left side of scalp over front part. viii) 7 X 1 cm X brain deep brain matter coming out over left side of scalp 3 cm behind outer border of left eyebrow, extending up to behind. FACE: i) Oblique incised wound 1.5 X 0.2 cm X skin deep over left side of face 1 cm away from left nostril. ii) Contusion 2.5 X 0.5 cm over left face 1.5 cm below left lower lid. iii) Laceration 1 X 0.5 cm X skin deep over outer part of left half of upper lip. iv) Puncture wound 2 X 0.5 cm over left half of lower lip. v) 1 X 0.8 cm punctured wound over left side of chin 1 cm below muco-cutaneous junction of left half of lower lip and 1.5 cm away from midline with fracture of anterior part of lower jaw. OTHER INJURIES: i) 1.5 cm diameter contusion over front of upper third of right upper arm. ii) 4 X 3 cm abraded contusion over inner back aspect of lower third of left thigh. iii) 2 X 1 cm abrasion over back of right calf. iv) Horizontal contusion over front of chest 3 X 2 cm.” 9 P.W. 1 Dr. R.P. Badoni has stated that deceased had died of coma due to head injury. The medical evidence adduced by P.W. 1 R.P. Badoni read with the autopsy report (Ext. A –1) establishes on the record that Bharpur Das died a homicidal death. Now, we have to examine whether accused / appellants, with common intention, committed murder of the deceased, or not. 6) P.W. 2 Aila Devi, informant and eyewitness, has stated that much before the day of incident her husband had died. She used to live with her children in her house in the village. She has further stated that on the day of incident, it was 11:00 P.M., when she was in her house with her children and Bhajan Lal (P.W. 4), and getting ready to sleep. She has further stated that Bharpur Das (deceased) was also in her house. She further narrates that accused Jaibir Singh knocked the door and asked her to open it, but she declined, as it was an odd hour. However, Bharpur Das opened the door, and Jaibir Singh on seeing him inside the house took him and crushed him between the door and wall. Accused / appellants Darshan Lal and Baisakhu, who were accompanying Jaibir Singh, also entered in the house and they gave lathi blows on the person of Bharpur Das, who succumbed to the injuries. She has also stated that on getting frightened she ran to hide herself. She also stated that Nihal Singh did not 10 commit any MAARPEET. P.W. 2 Aila Devi has further stated that on the next day morning, she went to the police outpost Brahamkhal to get the report lodged, but she was advised to go to the Patwari of the area for getting lodged the report. Accordingly, she went to Patwari, Junga, and gave first information report (Ext. A –2). She has also stated that during investigation her statement was recorded by the Sub Divisional Magistrate. 7) P.W. 3 Vinod, aged 11 years, son of the informant, has corroborated the testimony of her mother, and narrated the same prosecution story. He has also stated that after seeing the incident he got frightened and went towards cowshed to take shelter, with her sister. 8) The presence of the two eyewitnesses P.W. 2 Aila Devi and P.W. 3 Vinod in their house at the time of the incident is natural, and the statements given by them appear to be trustworthy. Though, P.W. 4 Bhajan Lal, the third witness, did not support the prosecution story and got declared hostile, but his evidence which is not relied by the prosecution, in the present case, does not shake the testimony of Aila Devi (P.W. 2) and Vinod (P.W. 3), particularly for the reason that P.W. 7 R.C. Tiwari, the then Sub Divisional Magistrate, has stated that the three eyewitnesses, namely Aila Devi, Vinod and Bhajan Lal gave the statements under 11 Section 164 of Cr.P.C. before him, supporting the prosecution story. In the circumstances, P.W. 4 Bhajan Lal appears to have been won over and did not support the prosecution case before the trial court. The explanation given by P.W. 2 Aila Devi for lodging first information report on the next day, at 03:00 P.M., is sufficiently explained in her statement that she was an illiterate lady, who went to the regular police outpost from where she was advised to go to the Patwari of the area, having jurisdiction over the matter. As to the source of light also there is ample evidence given by the eyewitnesses, namely P.W. 2 Aila Devi and P.W. 3 Vinod that the oil lamp was burning inside the house. There is no delay in recording the statement of the eyewitnesses by the Investigating Officer, who has recorded the statement of the informant on the next day, and thereafter that of the son of the informant. 9) On behalf of the accused / appellants it is argued that P.W. 2 Aila Devi and P.W. 3 Vinod have stated that Nihal Singh did not participate in commission of crime, but in the first information report it is mentioned that she saw that Nihal Singh also assaulted the deceased. We have examined the evidence on record carefully, and we are of the view that Nihal Singh regarding whom the two aforesaid eyewitnesses have not supported the prosecution case before the trial court has been acquitted by the trial court, but merely on its basis it cannot be said that 12 otherwise trustworthy evidence of the two eyewitnesses against the present appellants should be doubted. Principle of falsus in uno falsus in omnibus is not applicable in India. It is also pointed out on behalf of the accused / appellants that as stated by P.W. 6 Anand Pal, the Investigating Officer, there was blood stains in the blouse of Aila Devi and no blood stains in the lathies recovered by him. That again, on scrutiny does not help the accused / appellants for the reason that it is not necessary that lathi while being landed on the body, must get stained with the blood, which normally oozes out after couple of seconds of laceration, and not before that. As far as the blood stains of Aila Devi is concerned, there is no evidence if that blood was that of the deceased. 10) Lastly, it is pointed out on behalf of the accused / appellants Darshan Lal and Baisakhu that as against accused / appellant Jaibir Singh motive has been explained by the prosecution that he wanted to had an affair with Aila Devi and on seeing Bharpur Das during odd hours in her house, he had reason to kill him (Bharpur Das), but the other two accused (Darshan Lal and Baisakhu) are simply implicated as they were workers of Jaibir Singh, and had no motive in commission of crime. Had it been a case of circumstantial evidence, this argument could have helped to some extent to the two accused / appellants, but in the present case, there is direct natural eye 13 account given by the two witnesses who have no reason to falsely implicate the accused / appellants, as such, we do not find sufficient reason to discard the testimony of the eyewitnesses as against the two accused / appellants, merely for the reason that they had no motive to commit murder of Bharpur Das. 11) For the reasons as discussed above, in our opinion both the appeals are liable to be dismissed. Accordingly, both the appeals are dismissed. The conviction and sentence recorded in the impugned judgment and order dated 29.02.2000, passed by Sessions Judge, Uttarkashi, in Sessions Trial No. 03 of 1998, is affirmed. The Accused / appellants Jaibir Singh, Baisakhu and Darshan Lal are on bail. Their bail is cancelled. They are directed to surrender before the court concerned to serve out the sentence awarded by the trial court against them. Lower court record be sent back to make the accused / appellants serve out the sentence affirmed by this court. (V.K. Bist, J.) (Prafulla C. Pant, J.) Dt. March 04, 2011. H. Negi