IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Chapter VIII, Rule 32(2)(b) Description of Case Date of decision:- 16.04.2008 Criminal Appeal No. 762 of 2001 (Old No. 1056 of 1991) A.F.R. (Approved for Reporting) Not Approved for Reporting (Initial of Judge) Date:- 16.04.2008 Note: Bench Reader will attach this at the top of first page of the judgment when it is put up before the Judge for signature. Reserved IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 762 of 2001 (Old No. 1056 of 1991) (1) Tara Singh S/o Ram Singh (2) Babbar Singh S/o Tara Singh Both resident of Pipaliya Ghari, Tehsil Sitarganj, District Nainital. (3) Ranjit Singh S/o Hakim Singh R/o Dhora Dham, P.S. Sitarganj, District Nainital. ………………...Appellant. Versus State …………………..Respondent. Smt. Pushpa Joshi, learned counsel for the appellants. Sri Amit Bhatt, learned Additional Government Advocate for the State. Hon’ble Prafulla C. Pant, J. Hon’ble Dharam Veer, J. [Per- Prafulla C. Pant, J.] This appeal, preferred under Section 374 of Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), is directed against the judgment and order dated 14.05.1991, passed by learned Additional District Judge / Special Judge, Nainital, in Sessions Trial No. 210 of 1990, whereby accused / appellants Tara Singh, Babbar Singh and Ranjit Singh are convicted under Section 302 of Indian Penal Code, 1860 (hereinafter referred as I.P.C.), and each of them sentenced to undergo imprisonment for life. (2) Heard learned counsel for the parties and perused the lower court record. (3) Prosecution story in brief is that complainant Gurudayal Singh(P.W.2) is resident of village Pipaliya, within the limits of Police Station Sitarganj (Now part of District Udham Singh Nagar). Makkhan Singh (deceased) was his son. About one year before the date of incident, Makkhan Singh molested wife of accused / appellant Babbar Singh. After that incident, complainant Gurudayal Singh had felt sorry for the act of his son and prayed that his son be pardoned. However, accused / appellants Babbar Singh and Tara Singh continued harbouring enmity against Makkhan Singh. Due to this reason Makkhan Singh for most of the time used to live in the village of his in-laws. About a month before the date of incident Makkhan Singh came back to his village. On 22.06.1990 at about 7 P.M. he was sent by his father Gurudayal Singh (complainant) to ask Bhagwan Singh (P.W.8) to give his bullocks for a day for plating paddy. After meeting Bhagwan Singh, at about 8 P.M. when Makkhan Singh was returning to his home, near Barakoli range from the side of plot no. 2 accused appellants Tara Singh, armed with PATAL (a sharp edged weapon), Babbar Singh, armed with a long knife and Ranjit Singh, armed with a sword, came out an surrounded Makkhan Singh and grounded him from the bicycle. Ranjit Singh (P.W.1), brother of the deceased along with Dharam Singh were also coming on a tractor to their home. The two witnesses saw the three accused / appellants causing injuries on the person of Makkhan Singh with the weapons they possessed. They shouted for help on which Dalip Singh (another brother of the deceased), Fouja Singh (P.W.3) and Gurudayal Singh (P.W.2) came out from their houses. Fouja Singh had torch in his hand. On seeing the three above mentioned witnesses the accused appellants Tara Singh, Babbar Singh and Ranjit Singh escaped in the darkness leaving Makkhan Singh dead on the spot. According to prosecution the unarmed witnesses could not dare to chase the accused / appellants as they were armed with the deadly weapons. Gurudayal Singh (P.W.2), father of the deceased got scribed the First Information Report (Ext.A-1) through one Jagir Singh and lodged with Police Station Sitarganj, soon after midnight, at 00.20 A.M. on 23.06.1990. A check report (Ext.A-14) was prepared by the police and Crime No. 234 of 1990 relating to offence punishable under Section 302 of I.P.C. was registered against all the three accused, namely, Tara Singh, Babbar Singh and Ranjit Singh. Also, the Police made entry of the information at 00.20 A.M. in the General Diary, extract of which is Ext.A-15. Investigation was taken up by Senior Sub Inspector V.P.S. Rawat (P.W.9), who sent Sub Inspector Man Singh Sirohi (P.W.5) along with constables to the spot to take the dead body into possession. Sub Inspector Man Singh Sirohi (P.W.5) took the dead body in his possession, got it sealed, prepared inquest report (Ext.A.4), sketch of the dead body (Ext.A.5), letter for post mortem examination (Ext.A-6), Police Form No. 13 (Ext.A-7) and sample seal (Ext.A-8). The dead body was kept under the guard of two constables, namely, Lalta Prasad (P.W.6) and Harish Chandra, who took the dead body for postmortem examination. Post mortem examination was conducted by Dr. A.N. Saxena (P.W.4) on 23.06.1990 at about 4 P.M., who prepared autopsy report (Ext.A-3) and opined that cause of death of deceased was due to shock and hemorrhage as a result of ante mortem injuries. Meanwhile, Senior Sub inspector V.P.S. Rawat (P.W.9), interrogated the witnesses and after spot inspection prepared site plan (Ext.A-9). He also took the torch in his possession and returned to the witness after preparing memorandum (Ext.A-2). The Investigating Officer also took the blood stained soil and simple soil in his possession and prepared memorandum (Ext.A-10). He recovered bicycle, belonging to deceased, which was lying on the spot and prepared Ext.A-11. Watch and shoes of the deceased, which were also lying on the spot were also taken into possession by Investigating Officer and prepared Ext. A-12. After completion of investigation and arrest of the accused the Investigating Officer submitted charge sheet Ext.A.13 against all the three accused for their trial in respect of offence punishable under Section 302 I.P.C., (4) The Magistrate on receipt of the chare sheet 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, which was made over to the Additional Sessions Judge, for trial. Learned Additional Sessions Judge on 19.09.1990, after hearing the parties framed charge of offence punishable under Section 302 I.P.C. against all the three accused Tara Singh, Babbar Singh and Ranjit Singh. All of them pleaded not guilty and claimed to be tried. On this prosecution got examined P.W.1 Ranjit Singh, (brother of the deceased), an eyewitness, P.W.2 Gurudayal Singh, (father of the deceased), complainant and eyewitness, P.W.3 Fouja Singh, an eyewitness, P.W.4 Dr. A.N. Saxena, who conducted autopsy on the dead body of Makkhan Singh and prepared post mortem examination report (Ext.A- 3), P.W.5 Sub Inspector Man Singh Sirohi, who prepared inquest report (Ext.A-4) and other necessary papers, P.W. 6 Lalta Prasad, who guarded the dead body before it is handed over for post mortem examination. P.W.7 Inder Singh, father- in-law of the deceased, who has stated that the deceased mostly used to live in the house of his in- laws after his marriage for one year. P.W. 8 Bhagwan Singh to whom the deceased had gone requesting for bullocks for planting paddy and P.W. 9 Senior Sub Inspector V.P.S. Rawat, who investigated the crime. All the oral and documentary evidence was put to the three accused in respect of which they alleged the same to be false. They further alleged that they were falsely implicated due to enmity. Accused / appellants Tara Singh and Ranjit Singh also took plea of alibi. However no evidence in defence was adduced by any of the accused. After hearing the parties the trial court found all the three accused Tara Singh, Babbar Singh and Ranjit Singh guilty of charge of offence punishable under Section 302 I.P.C. and each one of them after hearing on sentence, sentenced to undergo imprisonment for life. Aggrieved by said judgment and order dated 13.05.1991 (whereby the conviction is recorded) and order dated 14.05.1991, whereby sentence is awarded by learned Additional Sessions Judge / Special Judge, Nainital, in Sessions Trail No. 210 of 1990, this appeal was preferred by three convicts before Allahabad High Court where it was presented on 16.05.1991. The appeal was admitted by Allahabad High Court on 17.05.1991. The appeal is received by this Court under Section 35 of U.P. Reorganisation Act, 2000, for its disposal. (5) Before further discussions, it is pertinent to mention here the ante mortem injuries recorded in the post mortem examination report (Ext.A.3) by P.W.4 Dr. A.N. Saxena, who conduced autopsy on the dead body of the Makkhan Singh on 23.06.1990 at about 4 P.M., which are being reproduced below:- (i) Traversed Incised wound 6cm x 1cm x bone deep 3cm above suprasternalnote tapering to right cutting of underneath body, of great vessels of neck. (ii) Traversed incised wound 6cm x 1cm, muscle deep on front of neck tapering to right 1cm above injury no. 1. (iii) Traversed incised wound 8cm x 1cm muscle deep tapering to right. 2cm above injury no. 2. front of neck. (iv) Incised wound 2cm x 1cm x muscle deep. On Chest right side, just above mid clavicle point. Incised wound 2cm x .5 cm x muscle deep, 2cm below right eye tapering to right. (v) Incised wound through and through the cheek 2cm on the left angle of mouth tapering outward. (vi) Incised wound 1cm x 1cm muscle deep nose, bone fractured. (vii) Incised wound 6cm x 1cm on head left side ear, tapering backward. In the opinion of the Medical Officer the deceased had died due to shock and hemorrhage on account of ante mortem injuries. From the Statement of P.W.4 A.N. Saxena read with autopsy report (Ext.A-3) it is established on record that Makkhan Singh died homicidal death on 22.06.1990. Now the question is whether the accused / appellants have committed the murder with common intention or not. (6) P.W.1 Ranjit Singh, (brother of the deceased), is eye witness of the incident, who has stated on oath that on the day of incident he along with Dharam Singh were coming on a tractor towards their house when at about 8 P.M. they saw in the tractor’s light that his brother Makkhan Singh who was going on a bicycle was suddenly attacked by accused / appellants Babbar Singh, Tara Singh and Ranjit Singh who came out on the road from plot no. 2. According to the witness accused / appellants Tara Singh was armed with PATAL, Babbar Singh was armed with long knife and Ranjit Singh was armed with sword. The witness further states that he and Dharam Singh shouted for help on which his father Gurudayal Singh, Dalip Singh and other neighbours came out with torches. They also witnessed commission of crime by the accused / appellants, who killed Makkhan Singh. P.W.1 Ranjit Singh further states that after the incident the three accused fled towards east. Regarding motive for commission of crime the witness further states that about an year before the incident, Makkhan Singh molested wife of accused Babbar Singh whereafter father of the deceased (Makkhan Singh) felt sorry and sought to be pardoned but the accused continued to harbour enmity. The witness further states that after the incident Makkhan Singh was sent to his in-law house. He (Makkhan Singh) had come about only a month before the incident in the village Pipaliya. (7) P.W.2 Gurudayal Singh, father of the deceased is also an eyewitness, who got lodged First Information Report (Ext.A-1). This witness has narrated the prosecution story by saying that on the date of incident he had sent his son Makkhan Singh to Bhagwan Singh asking him to give his bullocks for planting paddy. P.W.2 Gurudayal Singh further states that at about 8 P.M. when his son was returning to home near Barakoli range accused / appellants armed with PATAL, long knife and sword attacked him (Makkhan Singh) and murdered him. The witness further corroborated the motive of commission of crime, as stated by P.W. 1 Ranjit Singh. P.W.2 Gurudayal Singh has clarified that since there were no iron wheels in the tractor as such it used to get stuck in the field that is why the bullocks were needed for plantation of paddy. (8) P.W.3 Fouja Singh is also an eyewitness who has corroborated the story narrated by above two witnesses P.W.1 Ranjit Singh and P.W.2 Gurudayal Singh. This witness has stated that he saw the incident in the light of the torch with which he came out after hearing the shouts. This witness also belongs to the same village Pipaliya, where the incident has occurred. This witness has proved memorandum (Ext.A-2), which was prepared by the investigating officer after inspecting the torch in the light of which the witness saw the incident. (9) P.W.8 Bhagwan Singh has proved the fact that on the day of incident before Makkhan Singh was murdered, he had come to him at about 7.00-7.15 P.M. and requested for the bullocks for plantation of paddy. This witness further states that he promised him that the bullocks will be made available next day morning. (10) P.W.5 Sub Inspector Man Singh Sirohi has proved the inquest report (Ext.A-4), sketch of the dead body (Ext.A-5), letter for post mortem examination (Ext.A-6), Police Form No. 13 (Ext.A-7) and sample seal (Ext.A-8), which according to this witness were prepared at the time the dead body was taken into possession by the police and necessary papers were prepared. P.W.6 Constable Lalta Prasad has proved the fact that the dead body was guarded by him and another constable Harish Chandra and it remained in the sealed condition till it was handed over for post mortem examination to the Medical Officer. (11) From the oral testimony given by eyewitnesses as discussed above, it is proved beyond all reasonable doubt that all the three accused Tara Singh, Babbar Singh and Ranjit Singh committed murder of Makkhan Singh with common intention and each one of them gave blows with sharp edged weapons on the person of the deceased. The First Information Report is a prompt one as the same is recorded within four and a half hours of the incident, and distance between the police station and the village is 15 kms. The prosecution has established that there was sufficient light of tractor trolley and of the troches in the light of which the witnesses had opportunity to see the accused committing the crime. Post mortem examination report corroborates the manner in which the eyewitnesses stated the crime was committed. Apart from this thought it is not necessary for the prosecution but it has prove the motive for commission of crime. As such we are in agreement with the trial court that the prosecution has been successful in proving the charge against the accused / appellants. (12) Smt. Pushpa Joshi, learned counsel for the appellants argued that the First Information Report is ante timed as the names of the accused are not mentioned in the inquest report (Ext.A-4). However, we do not find any substance in the argument for the reason that on the top of the inquest report Crime No.’234/90, U/s 302 I.P.C. cuke rkjk flg vkfn’ is clearly mentioned which indicates that the First Information Report is not ante timed. (13) Next contention of the learned counsel for the appellants is that though the prosecution has suggested motive of commission of crime as against Tara Singh and Babbar Singh, there is no motive assigned to appellant Ranjit Singh to commit the crime. Having gone through the entire evidence on record, we are of the view that there is natural and clear testimony of the eyewitnesses against Ranjit Singh also with whom they had no enmity that he was also armed with sword and attacked with said weapon along with other two accused on the person of Makkhan Singh. It is not necessary for the prosecutions to prove the motive of commission of crime in the present case, particularly in view of the fact that it is not a case of circumstantial evidence. The testimony of the eyewitnesses which is otherwise natural and trustworthy and corroborated by the autopsy report cannot be doubted only on the ground that as against Ranjit Singh no motive is established on record. (14) It is submitted on behalf of the accused / appellants that it is unnatural on the part of the alleged eyewitnesses to see the commission of crime at 8 P.M. in the night. It is further submitted that they are nothing but chance witnesses and their testimony should not be believed. We have closely examined the evidence on record and found that the distance between the place of incident and the house of Gurudayal Singh from where Gurudayal Singh (P.W.2) has come, is not more than 200 steps. On hearing shouts it is natural on his part of come out of his house to see what is happening. P.W.3 Fouja Singh also belongs to same village where the incident had taken place. As such his presence in the village at 8 P.M. is nothing but natural. His house is also not far from the place of incident. As far as P.W. 1 Ranjit Singh is concerned he is said to be returning to his house in a tractor when he saw the incident. His presence near his house cannot be doubted. Apart from this P.W. 8 Bhagwan Singh to whom deceased had gone to request for bullocks, had also corroborated the fact that between 7.00-7.15 P.M. he (deceased) had come to him and went back. (15) Lastly it is argued that the Medical Officer (P.W.4 A.N. Saxena) in his cross examination has stated that the injuries could have been caused by axe and GANDASA. Both the weapons are also sharp edged weapons with the heavy lateral part. But Medical Officer has nowhere stated that these are not the injuries caused by sword or knife or PATAL rather he has stated in his examination-in-chief that the injuries on the person of the deceased could have been caused at 8 P.M. on 22.06.1990 by PATAL, long knife or sword. Considering the fact that the margins were found clear-cut, as mentioned in the autopsy report, the injuries found on the person of the deceased appear to be of the weapons as said to have been used by the appellants, by the eyewitnesses. (16) For the reasons as discussed above, we do to see any merit in this appeal, which is liable to be dismissed. The appeal is dismissed. The conviction and sentence recorded against accused / appellants by the trial court, is affirmed. The accused / appellants are on bail. Their bail is cancelled. The Registry is directed to send the lower court record back to the trial court to make the accused / appellants, serve out the sentence awarded against them. (Dharam Veer, J.) (Prafulla C. Pant, J.) 16.04.2008 NS