IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Chapter VIII, Rule 32(2) (b) Description of the Case. Date of decision: 18.07.2008 Criminal Appeal No. 1960 of 2001 (Old No. 2260 of 1993) A.F.R. (Approved for Reporting) Not approved for Reporting (Initial of Judge) Date: 18.07.2008 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. Judgment Reserved IN THE HIGH COURT OF UTTARAKHAND, AT NAINITAL Criminal Appeal No. 1960 of 2001 (Old No. Criminal Appeal No. 2260 of 1993) 1. Nandan Singh, S/o Bachchey Singh. 2. Pooran Singh, S/o Bachchey Singh. Both residents of Talla Bandarjuda, Ram Nagar, P.S. – Ram Nagar, District – Nainital. 3. Bachchey Singh, S/o Mohan Singh, resident of House no. 513, Sadar Bazar, Ranikhet, District – Almora. ……...… Appellants. Versus State …………..Respondent. Sri Ram Singh Sammal, Advocate for the appellants. Sri Harish Pujari, learned counsel for the respondent. JUDGMENT Hon’blePrafulla C. Pant, J Hon’ble Dharam Veer, J (Per Hon’ble Praffulla C. Pant, J) This appeal, preferred under section 374 (2) of Code of Criminal Procedure, 1973, (hereinafter referred as Cr. P.C.) is directed against the judgment and order dated 17.12.1993 passed by III Additional Sessions Judge, Nainital, in Sessions Trial No. 344 of 1989, whereby accused / appellants – Nandan Singh, Pooran Singh and Bachchey Singh are convicted under Section 302 read with Section 34 of Indian Penal Code, 1860, (hereinafter referred as I.P.C.). Each one of three is sentenced to imprisonment for life by the said court. 2. Heard learned counsel for the parties and perused the lower court record. 3. Prosecution story, in brief, is that on 29.06.1989 at about 8 a.m. Mohan Singh (deceased), who was Subedar in the Indian Army, had come to his village – Bandarjuda on leave. He was in his house when accused appellants – Nandan Singh, armed with PATAL (heavy sharp edged weapon), Pooran Singh, also armed with PATAL and Bachchey Singh armed with LATHI (Rod) came to his house and started beating him with the weapons they possessed. Mohan Singh having suffered injuries of PATAL and LATHI fell unconscious. Though no motive has been mentioned in the First Information Report but it has come on record in evidence that on the north side of Mohan Singh’s house, there is a plot no. 651 towards which Mohan Singh was making opening of his house and accused objected to it, as they claimed said plot no. 651 belonging to their relative Himmat Singh. According to the prosecution, the incident is said to have been witnessed by Shiv Raj Singh (PW 1) brother of the deceased; Sher Singh (PW 2) relative and neighbour of the deceased; Bachi Ram (PW 3), who is said to have been engaged as Carpenter to make opening in the house of Mohan Singh; Radhika Devi (PW 4) widow of the deceased; and Keshar Singh (PW 7) neighbour and nephew of the deceased. 4. The First Information Report of the incident was lodged on the very day by Shiv Raj Singh (PW 1) at about 11.40 a.m. with the Police Station – Ram Nagar, where the crime was registered against three accused relating to offence punishable under Section 307, I.P.C.. However, since Mohan Singh died on the same day the crime was converted into one punishable under Section 302, I.P.C., on the next day i.e. 30.06.1989. Sub Inspector – Tara Dutt Joshi (PW 8) started investigation. He inspected the spot, prepared the site plan (Exhibit A4). The Investigation Officer prepared inquest report (Exhibit A9) on 29.06.1989 i.e. on the day Mohan Singh succumb to injuries, sketch of dead body (Exhibit A10) and police form (Exhibit A11). Dead body of Mohan Singh was sent in sealed condition for postmortem examination. Dr. N.K. Agarwal (PW 6) conducted the post mortem examination on the dead body on 30.06.1989 and prepared the autopsy report (Exhibit A 3). He opined that deceased died due to shock and haemorrhage caused by injury suffered by him on his head (ante mortem injury no. 1). Meanwhile, the investigation was taken over by the Station Officer Sri J.D. Arya, who arrested the accused, recovered the weapon used in the crime on pointing out of accused Nandan Singh, and on completion of the investigation submitted chargesheet (A 14) against all the three accused. 5. The Magistrate on receipt of chargesheet, after giving necessary copies to the accused as required under section 207, Cr.P.C., appears to have committed the case to the sessions for trial. Learned Sessions Judge, Nainital, to whom the case was committed, after hearing the parties on 05.12.1989, framed the charge of offence punishable under Section 302, read with Section 34, I.P.C., against all the three accused namely Nandan Singh, Pooran Singh and Bachchey Singh. All the three accused pleaded not guilty and claimed to be tried. Thereafter, the case appears to have been transferred to Additional Sessions Judge for further trial. On this, prosecution got examined PW 1-Shiv Raj Singh, eye witness and complainant, who is relative and neighbour of the deceased; PW 2- Sher Singh, eye witness, who is relative and neighbour of the deceased; PW 3 – Bachchi Ram, independent eye witness, who was working in the house of Mohan Singh (deceased); PW 4 – Radhika Devi, eye witness, widow of the deceased; PW 5 Dr. S.S.P. Verma, who recorded the injuries on the person of Mohan Singh in Primary Health Centre, Bailparao, before his death; PW 6 – Dr. N.K. Agarwal, who conducted the postmortem examination of the dead body of the deceased; PW 7 – Keshar Singh, eye witness, who is nephew and neighour of the deceased and PW 8 – Sub Inspector Tara Dutt Joshi, who started the investigation. Apart from 8 witnesses, Constable Kishan Chandra (PW 9) has filed affidavit that dead body of Mohan Singh (deceased) was taken for postmortem in sealed cover. The oral and documentary evidence was put to the three accused under Section 313, Cr.P.C., in reply to which they alleged it to be false. Accused Nandan Singh at the end of his reply submitted that he used LATHI having sharp edged iron leaf with it against Mohan Singh in self defence. Other two accused simply denied the evidence produced by the prosecution as false. Accused Bachchey Singh submitted that he belongs to Ranikhet, a place 115 kms. away from the place of incident. It is further alleged by him at the end of his reply that as he is brother-in-law of accused Nandan Singh and falsely implicated. In defence DW 1 Constable Gopal Singh was got examined to prove the first information report (cross version of one lodged by Shiv Raj Singh with Police Station – Ram Nagar on 29.06.1989) lodged by Nandan Singh. After hearing the parties, the Trial Court found all the three accused guilty of charge offence punishable under Section 302 read with Section 34, I.P.C. and after convicting and hearing on the sentence, sentenced each one of the convicts to imprisonment of life. 6. Aggrieved by the judgment and order dated 17.12.1993 passed by learned III Additional Sessions Judge, Nainital in Sessions Trial No. 344 of 1989, this appeal was filed before Allahabad High Court on 20.12.1993 where it was admitted on 21.12.1993. The appeal is received by this court by transfer under Section 35 of U.P. Re-organization Act, 2000. 7. Before further discussion, we think it just and proper to mention ante mortem injuries found on the dead body of Mohan Singh by Dr. N.K. Agarwal (PW 6), who prepared autopsy report (Exhibit A 3) on 30.06.1989. The said report discloses following ante mortem injuries. 1. An stitch 5.5 cms over left side of scalp, 8 cm above the left eyebrow. 2. Abrasion 1 X 0.5 cm just medial right elbow. 3. 1.5 X 0.25 cm muscle deep lacerated wound over medial aspect of base of right thumb between index finger and thumb. 4. Abrasion 3 X 0.5 cm over lower part of chest (right) 10 cm medial downwards from right nipple. 5. Contusion 1 X 1 cm over anterior aspect of chest left side just medial to lower part sternum. 6. Abraded contusion 10 X 3 cm over anterior of left shoulder. 7. Abrasion 1 X 1 cm. just medial to anterior aspect of left elbow. 8. 14 X 5 cm contusion obliquely placed over the left lateral part of shoulder and upper arm left. 9. Abrasion 1 X 0.5 cm over middle of thumb left dorsal aspect. 10. Linear abrasion 7 X 0.05 cm anterior left forearm 7 cm distal to cubital fossa. 11. Abrasion in 5 X 4 cm. area size 1 to 2 cm over right leg 14 cm below the knee. 12. Abrasion 2 X 1 cm over medial arch of left foot 10 cm distal to medial malleous. 13. Abrasion 3 X 3.5 cm over left leg just below the left knee. 14. Abraded contusion 11 X 5 cm over back of right shoulder. 8. According to the Medical Officer (Dr. N.K. Agarwal), cause of death was shock and haemorrhage on account of injury no. 1. The said injury corresponds to injury no. 1 mentioned in injury report (Exhibit A2) prepared by Dr. S.S.P. Verma (PW 5), who examined Mohan Singh before his death. In Exhibit A 2, injury no. 1 reads as – ‘Incised would on scalp. 8 cm above the root of the nose directed left to right upward. Bleeding continues’. Above injuries disclose that it is homicidal death. Now, this Court has to see whether the injuries mentioned above were caused by the accused / appellants as narrated by the prosecution or not? 9. PW 1 – Shiv Raj Singh complainant, who is also eye witness, stated that Mohan Singh (deceased) was his real elder brother. He was Subedar in Indian Army. PW 1 further states that Mohan Singh (deceased) had come to home on leave. PW 1 – Shiv Raj Singh further states that on the day of incident Mohan Singh was in his house in Village – Bandarjuda. He told that his house (house of Shiv Raj Singh) was at a distance of 50 steps from the house of Mohan Singh (deceased). PW 1 – Shiv Raj Singh stated that accused Nandan Singh and accused Pooran Singh are real brothers and accused Bachchey Singh, who lives in Ranikhet is brother-in-law of Nandan Singh. Narrating the incident in question the witness states that there was a dispute of land between Mohan Singh on the one hand, and Nandan Singh & Pooran Singh, on the other hand. According to the witness, on 29.06.1989 at about 8.00 a.m., he was in his house when he heard noise and came to the house of Mohan Singh and saw that accused appellants Nandan Singh, Pooran Singh and Bachchey Singh are beating his brother Mohan Singh. The witness further discloses that Nandan Singh and Pooran Singh were armed with PATAL (heavy sharp edged weapon) and Bachchey Singh was armed with LATHI (Rod). PW 1 – Shiv Raj Singh also told that Bachchey Ram (PW 3) was working in the house of Mohan Singh at that time, who was engaged there, as carpenter to fix the door frame on the wall of house of Mohan Singh towards the disputed land between the parties. PW 1 – Shiv Raj Singh states that Mohan Singh got unconscious after suffering injuries and was taken in tractor trolley to Primary Health Centre, Bailparao where Medical Officer prepared injury report and referred him to Bazpur Hospital. Meanwhile, according to the witness, he went to lodge the First Information Report with Police Station – Ram Nagar. He has proved the First Information Report (Exhibit A 1), which was given by him at the Police Station along with copy of the injury report. In cross examination this witness has stated that though there is police out post in Bailparao but there was only one constable and he directed the complainant (PW 1) to go to Ram Nagar. As to the non mentioning of the names of witness – Radhika Devi and Surendra, this complainant eye witness PW 1 – Shiv Raj Singh has stated in his cross examination that he was nervous and could not give details in the First Information Report. In cross examination he further admitted that accused Nandan Singh had already reached Police Station – Ram Nagar to get lodged the cross version of the incident with the Police. He further admitted that Nandan Singh got lodged report relating to offence punishable under Section 324, I.P.C., against Mohan Singh and his son Surendra Singh. 10. PW 2 – Sher Singh, who is also neighbour of Mohan Singh (deceased) has corroborated the prosecution story as narrated by PW 1. PW 3 – Bachchey Ram is an independent witness, who was working in the house of Mohan Singh, at the time of incident to fix the door frame on wall towards the disputed land. This witness has also corroborated the prosecution story. PW 4 – Radhika Devi, widow of the deceased has also narrated the entire prosecution story in detail as witnessed by her corroborating the above three witnesses. PW 7 – Keshar Singh, who is nephew as well as neighbour of the deceased has also corroborated the prosecution story that on 29.06.1989 at about 8.00 a.m. on hearing noise he came to the place of incident and saw three accused Nandan Singh armed with PATAL, Pooran Singh also armed with PATAL and Bachchey Singh armed with LATHI (Rod) were giving blows on person of Mohan Singh, who was taken in injured position to Bailparao from where he was referred to Bazpur Hospital and on his way to Bazpur Hospital, the injured succumbed to the injuries. This witness has also proved the recovery of PATAL and Rod at the pointing out of Nandan Singh from his house. 11. The oral testimony of the above five eye witnesses read with ante mortem injuries mentioned in the autopsy report (Exhibit A 3) prepared by Dr. N.K. Agarwal, and medical report (Exhibit A 2) which was prepared Dr. S.S.P. Verma of Primary Health Centre, Bailparao, where the injured was taken soon after the incident before the death, proves the charge that the accused appellants Nandan Singh, Pooran Singh and Bachchey Singh with common intention caused injuries mentioned above on the day of incident and with common intention committed murder of Mohan Singh. Causing of injuries by Nandan Singh is admitted to him in his admission from the statement given by him under Section 313, Cr.P.C., in reply to the prosecution evidence put to him. 12. Learned counsel for the appellants argued that Nandan Singh has caused injuries to Mohan Singh only in private defence and other two appellants are falsely implicated due to the fact that they are relatives of the accused appellant Nandan Singh. We examined this issue carefully. To supplement the argument on behalf of appellants, reliance has been placed on to the case Babu Ram Vs. State of Punjab (2008) 3 SCC page 709, Nagarathinam Vs. State (2006) 3 SCC (Crl.) 212 and Raj Pal Vs. State of Haryana (2006) 3 SCC (Crl.) 361. After going through the entire evidence on record of this case and considering the submission of learned counsel for the appellants in the light of cases referred above, we find that plea of private defence cannot be accepted in this case for the reason that accused appellants have gone to the house of Mohan Singh (deceased) and they are aggressors. The injury, which is said to have been received by Nandan Singh, was on his thigh. It is sufficient to mention that said injury being on thigh of Nandan Singh, the same cannot be said to be noticed by witnesses unless the injured was without trousers. It cannot be said that the witnesses had an opportunity to see his injury. In the circumstances, it cannot be said that prosecution or its witnesses have concealed injury suffered by accused Nandan Singh. 13. Sri Ram Singh Sammal, learned counsel for the appellants contended that plot no. 651 on which the incident was said to have taken place belongs to Himmat Singh, a relative of Nandan Singh and Pooran Singh, as such it cannot be said that the appellants had no right of private defence. The document filed, in defence, relating to plot no. 651 shows that Himmat Singh was not the owner of the land, rather the entry shows him in class IV i.e. that of trespasser. Apart from this, if Mohan Singh had encroached upon the land of Himmat Singh or had made opening of his house towards the land occupied by Himmat Singh, the said person (Himmat Singh) could have come and objected to it. It is not the case of the appellants that Himmat Singh is dead. That being so, the appellants failed to explain how right of private defence accrued to them in respect of the land occupied by Himmat Singh. Therefore, we are of the view that Trial Court has rightly rejected the plea of self defence raised by the appellants. 14. Lastly, on behalf of appellants, it is submitted that accused appellant – Bachchey Singh belongs to Ranikhet and he has falsely been implicated in the crime only for the reason that he is brother-in-law of accused appellant – Nandan Singh. We have carefully gone through the evidence on record and found that Bachchey Singh was present on the day of incident in Bailparao and also at Police Station – Ram Nagar where he had accompanied Nandan Singh. As such, it cannot be said that evidence of eye-witnesses that he accompanied Nandan Singh and Pooran Singh at the time of incident and gave LATHI blows is doubtful. Injuries caused by LATHI mentioned in Injury report (Exhibit A 2) prepared by Dr. S.S.P. Verma (PW 5) read with corresponding ante mortem injuries mentioned in autopsy report (Exhibit A3) prepared by Dr. N.K. Agarwal (PW 6) corroborate the testimony of the witnesses against him also. As such, we concur the finding of the Trial Court that prosecution has been successful in proving the charge of offence under Section 302 read with Section 34, I.P.C., against all the three accused persons namely – Nandan Singh, Pooran Singh and Bachchey Singh. 14. For the reasons as discussed above, the appeal is liable to be dismissed, as such, the same is dismissed. The appellants Nandan Singh, Pooran Singh and Bachchey Singh are on bail, there bail is cancelled. Registry is directed to send the lower court record, back to make the accused appellants serve out the sentence awarded against them. (Dharam Veer, J) (Prafulla C. Pant, J) July 18, 2008 SKS