RESERVED v. State of Uttaranchal

Judgment

4. Lacerated wound 1 cm x 1 cm circular, Margins inverted over forehead in between eyebrows. Lacerated wound 1cm x 1cm right side chest, 6 cm above right nipple. Lacerated wound 1cm x 1cm right side of lower abdomen 6 cm lateral to unblicus, circular, margins inverted. Lacerated wound 1cm x 1cm over right shoulder, margins inverted, circular.

5. Multiple firearm injuries measuring 1cm x 1cm in an area of 12 cm x 16 cm over middle of back, margins inverted cavity deep, pellets and plastic cork recovered from cavity (wound of entering). The Postmortem report of Surender Singh (Ex. Ka. 28) reads as under:-

1. Lacerated wound 12 cm x 14 cm right side abdomen 6 cm above and lateral to unblicus and 10 cm below right nipple, margins crushed and multiple firearm injuries measuring 1 cm x 1 cm around the lacerated wound, margins inverted, muscle deep

2. Multiple lacerated wounds measuring 1 cm x 1 cm over left chest around nipple some are cavity deep and some skin deep Lacerated wound 10 cm x 6 cm left abdomen lateral side.

3. The Postmorterm report of Inderjeet Singh (Ex. Ka. 29) reads as under:-

4. Lacerated wound 1 cm x 1.5 cm left side chest oval in shape, margins inverted 6 cm above left nipple, cavity Two circular lacerated wound right side chest 6 cm below right nipple, skin deep, margins inverted Three lacerated wound in an area of 8 cm x 6 cm over right shoulder joint, skin deep, margins inverted Lacerated wound 1 cm x 1 cm circular in shape over right lower abdomen 6 cm lateral to unblicus

5. Lacerated wound 3 cm x 3.5 cm oval in shape margins everted and irregular over back of chest, left side, track corresponding to injury No. 1, injury No. 5 is wound of exit. R.M. present both upper and lower limbs. Similarly, Har Dayal Singh, Ajeet Singh and Baljeet Singh were also got medically examined reports of which are Ex. Ka. 36, Ka. 37 & Ka. 38 respectively.

The medical examination report of Shri Har Dayal Singh (Ex. Ka. 36) is as under: i) ii) Punctured wound 4 mm x 4 round in the left side of temporal area 3 cm above the left extended ear. Bleeding. X-ray advised. Punctured wound ½ com x ½ cm round with lavel of Ist therocic vertibra. Bleeding. X-ray advised. iii) Punctured wound ½ cm x ½ cm on left scapulo. Bleeding. X-ray advised. The medical examination report of Shri Ajeet Singh (Ex. Ka. 37) is as under: i) Lacerated wound of .3 cm x .3 cm on the back side of right hand, skin deep. Oozing of blood present. ii) Multiple firearm wound of entry size .3 x .3cm in the area of 18 cm x 9 cm on middle part of the left thigh snaut and outer side. Black coloured. Jean pant is also torned on the same places. Margins are charred and indication is present around them. Advised X-ray of left thigh. iii) Multiple firearm wound of entry on the medial and anterior aspect of right thigh, some part is also torn on the same places over the injuries. Margins are charred and them. Oozing of blood also present size 13 cm x .3 cm. Advised X-ray of the right thigh. is present around indication iv) No other external injuries seen. The medical examination report of Shri Baljeet Singh (Ex. Ka. 38 ) is as under: i) ii) iii) iv) v) Lacerated wound over the right side of face and neck involving the lower jaw and right angle of lip and tongue. Excessive bleeding through the wound Irregular margin defect in the skin ent. Boney pieces of mandible Right lower palpable throught the wound. On 4th May 2000, Investigating Officer has submitted the enquiry report of accused Paramjeet Singh alias Pamma that his fingerprints were found on his gun No. 17466-96. The gun was recovered from an Arms Dealer of Rampur and has been marked as Ex. Ka. 39. Recovered gun and bullets were sent to Forensic Science Laboratory Agra for investigation and the report has been submitted as Ex. Ka. 46. The report of Forensic Science Laboratory, Agra submitted as Ex. Ka. 46 is as under: 1) fookfnr dkjrwl bZlh&1] 12 cksj Mhchch,y xu u0 17466 fpfUgr 1@2001 dh ck;ha uky }kjk pyk;k x;k gSA 2) fookfnr dkjrwl bZlh&2] o bZlh&3] 12 cksj Mhchch,y xu u0 17466 fpfUgr 1@2001 dh nk;ha uky }kjk pyk;k x;k gSA Samples of blood and soil which were collected from the spot i.e. at the place of incident and the report received from the Forensic Science Laboratory Agra was marked as Ex. Ka. 47. Map of the recovery site has also been prepared and has been marked as Ex. Ka. 45. During the investigation, Investigating Officer had taken the statements of witnesses under section 161 IPC and also made the map of place of incident (the same was marked as Ex. Ka. 26) after the completion of the investigation the charge-sheet was framed against the accused Paramjeet Singh alias Pamma under section 302 / 307 IPC. To prove the charges against the accused persons eight witnesses were examined the names are as under:

1. 2. 3. 4. 5. 6. 7. 8. Ajeet Singh Baljeet Singh Gurmeet Singh Satwant Singh Rajender Kumar Harpal Singh Hira Lal Rajan Tyagi I.O.(Inspector) P.W. 1 (injured) P.W. 2 (injured) P.W. 3 P.W. 4 P.W. 5 P.W. 6 P.W. 7 P.W. 8 The statement of the accused was recorded under section 313 Cr.P.C. who has denied his participation and has stated that his finger prints was found from the gun which was deposited at Rampur’s dealers. It was alleged that the Police has made a fraud case and the report of the Investigation and the witnesses of Police speaks lie and no evidence was produced from the accused. The learned Sessions Judge has given the following circumstances while sentencing the accused. The circumstance was about the motive that the accused had motive and reason for committing the offence and murder. The second circumstance was the recovery of 12 bore licensee gun (Ex. 6) of the accused on the information and the statement made by the accused and the three empty cartridges of 12 bore gun which were found at the place of incident clearly indicating that the bullets were fired by the 12 bore licensee gun of the accused at the time of incident and that the gun was in the possession of the accused himself and not in possession of anybody else on the day of incident. The third circumstance was with regard to the compromise that after this incident, a compromise was made between accused and others in which it was decided that the accuse should be apologize for that. The fourth circumstance was with regard to absconding of the accused. The counsel for the appellant Mr. P.M.N. Singh vehemently argued that the conviction is likely to be vitiated, as there was no direct evidence available on the record. He has further stated that the FIR was ante dated. He has stated that the learned Sessions Judge has relied upon the motive between the parties but sine the said question was not asked during the proceedings u/s 313 of the Code of Criminal Procedure, therefore, the entire prosecution story was liable to be vitiated. The counsel for the appellant has also filed the application for additional evidences u/s 391 of the Cr. P.C. The contents of the additional evidences referred to in the application is as under: (1) A certified copy of the complaint filed by Hardayal Singh S/o Tara Singh, the father of the appellant, against Inderjeet Sinhg S/o Hardayal Singh, Surendra Singh S/o Hardayal (2) Singh, Sharanjeet Singh S/o Hardayal Singh and 4 others in the court of Munsif Magistrate Rudrapur, Distt. Nainital and registered as Criminal Case No. 1060/91 under section 147, 148, 452, 323 504, 506 I.P.C. A certified copy of the complaint filed by Inderjeet Singh S/o Hardayal Singh against Hardayal Singh S/o Tara Singh and 6 others in the court of Munsif Magistrate Rudrapur, Nainital under section 147, 323, 504, 506, 392 registered as Criminal Case I.P.C. and No.392/95. (3) A Photostat copy of the affidavit of Hardayal Singh S/o Tara Singh dated 15.05.2000. The counsel for the appellant had argued on the following points with regard to additional evidences:- (i) that the certified copies of complaint of the Criminal Case No. 1060/91 and Criminal Case No. 392/95 shows that there was dispute of property between the three deceased persons and Hardayal Singh, the injured witness, and they were litigating and there were frequent criminal incidents disputes among them. The appellant was not at all concerned with the dispute of the property or any other criminal incident due to legacy of Hardayal Singh. (ii) that the Photostat copy of the affidavit of Hardayal Singh dated 15.05.2000 shows that Hardayal Singh S/o Tara Singh had deposed before the Sessions Judge Udham Singh Nagar that the appellant was not the assailant. A reply has been filed by the prosecution against this application which reads as under:-

1. That the application moved by the appellant is at a belated stage and is not maintainable as during the trial the appellant has ample opportunity to file the present application before learned Sessions Judge.

2. That the contents of certified copy for the criminal complaint No. 1060 of 1991 and certified copy of the criminal case No. 392 of 1995 are not relevant at this stage, which amounts to taking a new plea for his defence. The photocopy annexed with the affidavit is a got-up evidence, which is not likely to assist this Hon’ble Court in the disposal of the present appeal, and the same is against the provisions of Indian Evidence Act.

3. That the incident / facts shown in the complaint case mentioned in the certified copies filed by the petitioner has no relevance on facts of the incident, which took place on 27.04.2000 and Hardayal Singh had received injuries in the said incident. The veracity of the statement under section 161 Cr.P.C. during the trial has been judged in the proper perspective by the learned Sessions Judge, therefore, the prayed by the appellant is misconceived.

4. It is, therefore, most respectfully prayed that this application may pleased be dismissed being not maintainable under the circumstances of the appeal. We find none of the contents of the above application which can be admitted as additional evidences as the documents are not concerning any subsequent events but are only narration of the entire story and as such we find no substance in admitting them as additional evidences. So far as panchayatnama is concerned the counsel for appellant has stated that the same cannot be relied upon in absence of the person in whose favour the decision was taken. The counsel for the appellant has also challenged the report of the Ballistic Expert on account of some discrepancy in the report. Coming to the FIR the same has been lodged on 27th April

2000. Time has been mentioned as 18:40 (6:40). The FIR was lodged by Sri Ajeet Singh, S/o Inderjeet Singh. The FIR shows as under:- lsok esa] Jheku~ dksroky lkfgc] dksrokyh :nziqjA egksn;] fuosnu gS fd eS vthr flag] iq= bUnzthr flag] eksgYyk dY;k.kh O;w fudV dapu rkjk gksVy dLck o Fkkuk :nziqj dk djus okyk gwWa esjs nknk th gjn;ky flag ds ikap yMds gSa ¼1½ l0 bUnzthr flag ¼2½ l0 xksiky flag ¼3½ l0 tksxsUnz flag ¼4½ l0 egsUnz flag ¼5½ ljnkj ijethr flag gSaA esjs nknk th us esjs rhu pkpk l0 xksiky flag] l0 tksxsUnz flag] l0 egsUnz flag dks viuh tk;nkn esa ls fgLlk ns fn;k Fkk esjs firk o pkpk ijethr flag dks tk;nkn esa fgLlk ugha fn;k Fkk esjs pkpk ijethr us dY;k.kh O;w :nziqj okyk IykV QthZ rjhds ls fcuk esjs nknk dks fcuk crk;s] Mk0 vorkj flag fxy dks csp fn;k vkt ekywekr gksus ij esjs nknk th us viuk fjgk;”kh edku tks eVds okyh xyh :nziqj esa gS mldk eq[r;kjs vke o olh;r djkus dks esjs firk o eq>s ysdj vkt fdPNk jthLVªjh vkfQl esa x;s FksA jthLVªh vkfQl esa esjs nknk th us edku dk eq[r;kj vke esjs firk th ds uke dj fn;k Fkk fd ogh ij ijethr flag mQZ iEek vk x;k mlus ogka ij esjs firk th o nknk th dks xkfy;ka nh] /kDds ekjs o ogka ij /kedh nsrk gqvk pyk x;k] blds ckn ge yksx le; djhc ikSus N% cts mudks gekjs nknk th dks NksM+us muds fjgk;’kh edku eVds okyh xyh esa muds lkFk x;s Fks gekjs lkFk eSa o esjs firk th] l0 bUnzthr flag rFkk esjs HkkbZ l0 lqjsUnz flag] l0 'kj.kthr flag] l0 cythr flag rFkk l0 lroar flag iq= ljnkj Hkxoku flag fuoklh eYlk] xq:ehr iq= Jh Hkxoku nkl fuoklh nfj;kuxj Hkh FksA tc ge yksx viuh dkj ls mrj dj ?kj ds vUnj tk jgs Fks rks esjk pkpk ijethr flag mQZ iEek rFkk mlds lkFk nks&rhu vkneh vkSj esjs pkpk tks fd viuh dkj esa xq:}kjs ds uhps ?kj ds lkeus ?kkr yxk;s cSBs Fks rFkk gekjs ?kj dh rjQ pyrs gh esjs pkpk ijethr us viuh ek:rh oSu ls mrj dj viuh cUnwd ls ge yksxksa ds mij tku ls ekjus dh fu;r ls Qk;fjax djuh 'kq: dj nh ftldh xksyh esjs firk o esjs Hkkb;ksa l0 lqjsUnz flag] l0 'kj.kthr flag] cythr flag rFkk esjs nknk l0 gjn;ky flag vkSj esjs yxh xksyh yxus ls yxkrkj gh esjs firk l0 bUnzthr flag HkkbZ lqjsUnz flag o 'kj.kthr flag dks ekSds ij gh ekSr gks xbZ rFkk esjs HkkbZ cythr flag ds eqag ij xksyh yxh rFkk esjs o nknk th ds Nj~js yxs gSaA Qk;fjax ds 'kksj ij ogka ls xqtj jgs l0 gjiky flag iq= xqjcD’k flag fuoklh feYkd o jktsUnz dqekj iq= Jh jke jD[kk fuoklh eYlk fxj/kjiqj ftyk m/keflag uxj o vU; dbZ yksx ekSds ij vk x, ftUgksus ;g okD;k ns[kk xksyh ekjus ds ckn ijethr o mlds nks rhu lkFkh ftUgs ge lkeus vkus ij igpku ldrs gSa gokbZ Qk;j djrs gq;s rFkk yksxksa dks tku dh /kedh nsrs gq;s viuh ek:rh oSu ij cSB dj pys x;s A bl ?kVuk Lks vkLk ikLk ds nqdkunkjksa o yksxksa esa HkxnM+ ep xà Hk; O;kIr gks x;k o fnu ngkMsa+ lkoZtfud LFkku ij gqà bl ?kVuk ls vke yksxksa esa ng’kr gks xà nqdkunkjksa us nqdkus cUn dj nh rFkk vkus tkuss okys yksxksa esa HkxnM+ ep xà esjs firk o Hkkb;ksa dh yk’k ysdj dkQh yksx vLirky ysdj igqap x;sA eq>s o esjs ifjokj ds vU; yksxks dh tku dk [krjk cuk gqvk gSA vr% Jheku~ th ls izkFkZuk gS fd esjh fjiksZV ntZ dj dkuwuh dk;Zokgh djsa izkFkhZ vthr flag iq= l0 bUnzthr flag fuoklh dY;k.kh O;w :nziqjA

27.4.2000 i) As will appear from the FIR that Shri Ajeet Singh has that his father Inderjeet Singh, very clearly stated Surendra Singh and Shranjeet Singh died on the spot. ii) His brother Baljeet Singh and grandfather were injured as a result of the aforesaid firing. iii) The FIR further shows that the uncle of Ajeet Singh came from Maruti Van and had fired from his gun in order to kill the family members. iv) On the top of the FIR there is a mention that the grand- father of Ajeet Singh has given the share to his three uncles, namely Gopal Singh, Jogender Singh and Mahendra Singh from his property. But no share was given to Inderjeet Singh and Paramjeet Singh, father and uncle of Ajeet Singh. v) vi) Paramjeet Singh alias Pama, uncle of Ajeet Singh has sold the plot of Rudrapur without conveying to the grandfather of Ajeet Singh. The grandfather of Ajeet Singh went to the Registry office for executing the will along with Ajeet Singh and his father Inderjeet Singh and ultimately the grand- father has executed ‘Muktarnama’ in favour of the father of Ajeet Singh, namely Inderjeet Singh. vii) Paramjeet Singh alias Pamma came on the spot and abused the grandfather of Ajeet Singh. viii) The quarrel started from the moment as will appear from the motive that Paramjeet Singh abused the father of Ajeet Singh and his grandfather and therefore while entering in the house by the Maruti car his uncle Paramjeet Singh alias Pamma fired on the family of Ajeet Singh. The narration in the FIR aforesaid clearly indicates that there was a family dispute amongst the heirs of the grandfather of Ajeet Singh and that Paramjeet Singh alias Pamma had seen the Power of Attorney being executed, abused the grandfather of Ajeet Singh and ultimately fired from his licensee gun with an intention to kill all of them. Coming to the statement of Ajeet Singh, PW 1. PW 1 has stated in his statement that the FIR (Ex. Ka 1) was lodged by him. The cross examination of Ajeet Singh Shows as under:- ;g dguk xyr gS fd eS gkftj vnkyr vfHk;qDr ijethr mQZ iEek tks fd esjs pkpk yxrs gS] jkthukek gks tkus ds dkj.k xyr c;kuh dj cpk dgk gwW] ;g Hkh dguk xyr gS fd izn’kZ ds&1 fjiksVZ eSusa Loa; ekSds ij mifLFkr gksus ,ao ?kVuk dks ns[kus ds dkj.k rgjhj ds vuqlkj fy[kkbZ Fkh vkSj vc eS jkthukek gks tkus ds dkj.k rgjhj dh bckjr dks ykxks }kjk crk;k tkuk c;ku dj jgk gwWa] ;g lgh gS fd esjk MkDVjh ewvk;uk gqvk Fkk] ;g dguk xyr gS fd ijethr mQZ iEek us eq>s cythr o gjn;ky dks tku ls ekjus dh fu;r ls cUnwd dh pksV igWqpk;hA Further, so far as the compromise is concerned the same was admitted by Ajeet Singh. The same is quoted below:- ;g lgh gS fd gkftj vnkyr vfHk;qDr ls jkthukek gks x;k gS eqfYte ijethr flag mQZ iEek esjk pkpk yxrk gSA izn’kZ d&1 rgjhj eSusa vius gkFk ls fy[kh A ;g lgh gS fd izn’kZ d&1 esa eSusa viuh p’enhn xokgh ekStwnxh vfHk;qDr }kjk bUnzthr flag] 'kj.kthr flag o lqjsUnz flag dh gR;k ds le; ekSds ij fy[kkbZ gS vius vki dh p’enhn eSaua ogka bdV~Bh HkhM+ ds crkus ij fn[kkbZ gS A ysfdu okLro esa eSusa [kqn eqfYte ijethr flag dks Qk;j djrs ekSds ij ugha ns[kk FkkA The PW 2, Baljeet Singh who is an injured witness has stated as under:- gekjh tehu tk;nkn lEcU/kh fookn gkftj vnkyr eqfYte ls py jgk Fkk A oSu ls mrjus okys vkSj Qk;j dj gR;kjs dks eS ugha igpku ldkA gkftj vnkyr vfHk;qDr ijethr flag mQZ iEek us mijksDr rhuks gR;k;sa ,oa geas pksV ugha igqWpk;h A eS gR;k djus okyksa dks ugh igpku ldkA ;g lgh gS fd gkftj vnkyr eqfYte ijethr flag mQZ iEek tks fd esjk pkpk gS ftlls esjk jkthukek gks x;k gS A ysfdu ;g dguk xyr gS fd bl jkthukesa dh otg ls eS xyr c;kuh dj vfHk;qDr dks cpk jgk gWwA The PW3, Gurmeet Singh has stated as under:- ;g dguk lgh gS fd eqfYte esjk ekSlsjk HkkbZ gSA vkSj ge yksxks dk iapk;r esa jkthukek gks x;k gSA ;g dguk xyr gS fd bl jkthukesa dh otg ls eS xyr c;ku dj mls cpk jgk gwWA The PW4, Satwant Singh has stated as under:- e`rd ljnkj bUnzthr flag dk eS fj’rsnkj gwW] gekjh iapk;r esa cSBdj jkthukek gks x;k gS] iapk;r us iEek vfHk;qDr gks ekQ dj fn;k gSA ;g dguk xyr gS fd blh jkthukesa dh otg ls eS xyr c;kuh dj eqfYte iEek dks cpk jgk gWw] ;g dguk xyr gS fd gkftj vnkyr vfHk;qDr us gh gR;k dh gks vkSj blh us pksVs igWqpk;h gksA There is a clear admission that the double barrel gun No. 17466-96 was recovered from Rampur and the recovery memo was prepared which is a part of the record as Ex. Ka. 39. The accused has admitted that the gun was deposited by him. In the end the question asked was, what you have to say in your defence and it has been frankly stated by the accused that he has nothing to say. No more evidence was laid with regard to the motive or any other part in spite of the direct question which were asked from the accused The recovery memo of the gun of Paramjeet Singh alias Pamma bearing No. 17466-96 was recovered from Rampur as will appear from Ex. Ka. 39 on 4th May 2000. The accused persons were also examined u/s 161 Cr. P.C. and thereafter a charge sheet was submitted u/s 302/307 I.P.C. The statement under section 313 Cr.P.C. of the accused was recorded. The details of the statements made under section 313 IPC is quoted below:- iz'u& vfHk;kstu i{k dk dFku gS fd fnukad 27-4-2000 dks le; djhc 5-45 cts ’kke] LFkku & eVds okyh xyh cktkj :nziqj] cgn Fkkuk :nziqj] ftyk m/ke flag uxj ds vUrxZr vkius bUnzthr flag] lqjsUnz flag o ’kj.kthr flag ij cUnwd ls Qk;j djds mudh gR;k dkfjr dj nh rFkk vthr flag] cythr flag o gjn;ky flag dks tku ls ekjus dh fu;r ls Qk;j djds pksVsa igqapkbZ] bl ckcr vkidks D;k dguk gSA mRrj& th ugha ;g xyr gS A iz’u& lk{; gS fd bl ?kVuk dh rgjhjh fjiksVZ vfHk;ksxh vthr flag us Fkkus esa nh tks izn’kZ d&1 gS] bl ckcr vkidks D;k dguk gS A mRrj& fjiksVZ >wBh fy[kkbZ A iz’u& lk{; gS fd ?kVukLFky ls foospuk vf/kdkjh }kjk foospuk ds nkSjku [kwu vkywnk ,oa lknk feV~Vh dcts esa ysus dh QnZ rS;kj dh x;h] [kks[kk dkjrwl dCts esa ykus dh QnZ rS;kj dh x;h] e`rd dk p’ek o ixM+h dCts esa ysus dh QnZ rS;kj dh x;h tks dze’k% izn’kZ d&2 yxk;r d&4 gS] bl ckcr vkidks D;k dguk gS A mRrj& QthZ dk;Zokgh dh A iz”u& lk{; esa ;g Hkh vk;k gS fd nkSjku foospuk vf/kdkjh jktu R;kxh ¼ih0MCyw0&8½ }kjk vfHk;ksxh vthr flag ds c;ku fy;s x;s ftldh izekf.kr QksVks izfr izn’kZ d&40 gS] bl ckcr vkidks D;k dguk gS A mRrj& irk ugha A iz’u& lk{; gS fd foospuk vf/kdkjh }kjk vU; xokgku lroar flag] xqjehr flag] gjiky flag] jktsUnz dqekj o cythr flag ds c;ku fy;s x;s ftuds c;kuksa dh izekf.kr QksVks izfr;ka izn’kZ d&41] d&42 o d&43 gS] bl ckcr vkidks D;k dguk gS A mRrj& irk ugh A iz’u& lk{; esa ;g Hkh vk;k gS fd ih0MCy0&8] foospuk vf/kdkjh }kjk ?kVukLFky dk ekufp= rS;kj fd;k x;k tks izn’kZ d&26 gS aA vkidh cUnwd ua0 17466&96 vki dh fu’kkunsgh ij jkeiqj ls cjken gqbZ ftldh cjkenxh dh QnZ rS;kj dh x;h tks izn’kZ d&39 gS] cUnwd cjkenxh ds LFky dk ekufp= rS;kj fd;k x;k tks izn’kZ d&45 gSA eqdnes ls lEcf/kr eky dh jklk;fud ijh{k.k fjiksVZ fof/k foKku iz;ksx’kkyk ls izkIr gq;h tks izn’kZ d&44 gS] bl ckcr vkidks D;k dguk gS A mRrj& esjh fu’kkunsgh ij cUnwd cjken ugha gq;h ;g uEcj 17466&96 esjh ykbZlSUlh cUnwd dk gS A eSus jkeiqj ds Mhyj ds ;gka tek djk;h Fkh] iqfyl us QthZ dk;Zokgh dh gS a iz’u& lk{; gS fd e`rd bUnzthr flag] lqjsUnz flag ,oa “kj.kthr flag ds ’koksa dk iapukes rS;kj fd;s x;s tks dze’k% izn’kZ d&15] d&19 ,oa d&23 gS rFkk mijkDr rhuks e`rd ds ’koksa dk iksLVekVZe djk;k x;k ftudh ikLVekVZe fjiksVZ dze’k% izn’kZ d&29] d&28 ,oa d&27 gS] bl ckcr vkdks D;k dguk gS mRrj& irk ugha A iz’u& lk{; esa ;g Hkh vk;k gS fd foospuk vf/kdkjh }kjk foospuk lekIr djus ds mijkUr vkids fo:) vkjksi i= U;k;ky; esa iszf"kr fd;k tksa izn’kZ d&5 gS] bl ckcr vkidks D;k dguk gS A mRrj& QthZ rQrh’k dh vkSj xyr vkjksi i= tkjh fd;k A iz’u& D;k vkius vfHk;kstu i{k ds lk{kh x.k ih0MCyw0&1 vthr flag] ih0MCyw0&2 cythr flag] ih0MCyw0&3 xqjehr flag] ih0MCyw0&4 lroar flag] ih0MCyw&5 jktsUnz dqekj] ih0MCyw&6 gjiky flag] ih0MCyw0&7 ghjk yky rFkk ih0MCyw&8 bUliSDVj jktu R;kxh dk lk{; lquk] bl ckcr vkidks D;k dguk gS A mRrj& xokgku ifCyd us esjs f[kykQ xokgh ugh nh gS iqfyl ds xokg >wB cksyrs gSa A iz’u& D;k vkidks lQkbZ esa dksbZ lk{; izLrqr djuk gS A mRrj& th ugha A iz’u& D;k vkidks dqN vkSj dguk gS A mRrj& eq>s >wBk ikVhZokn dh otg ls Qalk;k x;k gS A eS :nziqj dk lektoknh ikVhZ dk v/;{k gwa A The first circumstance was about the motive as will appear form the FIR that there was a dispute with regard to the land and the accused has purpose and reason for committing the offence and murder. So far as the first circumstance is concerned the learned Sessions Judge has recorded the findings to the following effect: vfHk;kstu dFkkud ds vuqlkj mDr vkijkf/kd vid`R; djus okyk vFkok e`rd dh gR;k dkfjr djus okyh pksVksa rFkk pqVSyksa dh gR;k dk iz;kl djus o mUgsa ’kkjhfjd {kfr dk jpf;rk vfHk;qDr ijethr flag mQZ iEek gS ftlus ?kVuk ds le; viuh cUnwd dk iz;ksx ;g vkijkf/kd vid`R; djus esa fnukad 27-4-2000 dks le; 5-45 cts fnu Fkkuk :nziqj esa fd;k A ?kVuk ds le; o LFkku ds lEcU/k esa ldkjkRed lk{; vfHk;ksxh& pqVSy vthr flag ¼ih0 MCyw0&1½] rFkk vU; pqVSy cythr flag ¼ih0 MCyw0&2½] us nh gS vkSj budh bl vk’k; dh lk{; dks izfr ijh{kk esa cpko i{k dks vksj ls pqukSrh ugh nh x;h gS vr,o ;g rF; iq.kZr;k laiq"V gS fd ?kVuk mDr fnaukd] le; ,oa LFkku ij ?kfVr gq;h A bl fcUnq ij vU; miyC/k lk{; dk mYys[k djus dh vko’;drk ugha gS D;ksafd nu nksauksa lkf{k;ksa dh lk{; ls gh mDr of.kZr izFke fopkj.kh; iz’u dk ldkjkRed mRrj fey tkrk gS A tgka rd f}rh; fopkj.kh; fcUnq dk iz’u gS bl lEcU/k esa vfHk;kstu i{k ds lk{; dh oLrqfLFkfr ;g gS fd vfHk;kstu i{k ds lHkh rF; ds lk{kh vfHk;ksxh&pqVSy vthr flag ¼ih MCyw0 1½] pqVSy cythr flag ¼ih0 MCyw0&2½] vU; p{kqn’khZ lk{kh x.k xqjehr flag ¼ih MCyw0&3½] lroar flag ¼ih0 MCyw0&4½]jktsUnz dqekj ¼ih MCyw0&5½] gjiky flag ¼ih MCyw0&6½] rFkk ghjk yky ¼ih MCyw0&7½] i{knzksgh gks x;s vkSj bUgksusa vfHk;kstu i{k ds dFku dk leFkZu ugha fd;kA vfHk;ksxh vthr flag ,oa mlds Hkzkrk cythr flag us ?kVuk vius lkeus dkfjr gksus dh ckr rks dgh ysfdu ;g vfHkcpu Hkh fd;k fd vfHk;qDr ijethr flag us u rks e`rdksa dh gR;k ekSds ij cUnwd ls Qk;j djds dh vkSj u gh cUnwd ds Qk;j ls bUgsa rFkk buds nknk mU; pqVSy gj n;ky flag ¼e`rd½ dks tku ls ekjus dk iz;kl fd;k A vfHk;ksxh us izFke lwpuk fjikZV izn’kZ d&1 viuh gLrfyf[kr gksuk Lohdkj fd;k ftlesa vfHk;qDr ijethr flag ukfer fd;k x;k Fkk ysfdu ;g vfHkcpu fd;k fd mlus bl vfHk;qDr dk uke vU; yksxksa ds dgus ls fjiksVZ esa fy[kk fn;k Fkk A vU; mfYyf[kr izR;{kn’khZ lkf{k;ksa us rks viuh ekStwnxh gh /kVukLFky ij Lohdkj ugh dh vkSj /kVuk ds dFkkud dk leFkZu ugh fd;k A bu lHkh lkf{k;ksa ls vfHk;kstu i{k dh vksj ls ftyk’kkldh; vf/koDrk ¼QkStnkjh½ us Lohd`fr iznku djus ij izfr ijh{kk dh ysfdu dksbZ ,slh ckr lkeus ugha vk;h tks bu lkf{k;ksa ds }kjk mDr izdkj ls fd;s x;s uqdlku dh HkjikbZ gks ldrh A vU; ’kCnksa esa ;g lHkh vius bl vfHkcpu ij n`<ladYi jgs fd vid`R; djus okyk O;fDr vfHk;qDr ijethr flag ugh gS A ;gka ;g mYys[k djuk Hkh lehphu gksxk fd ;|fi ifjoknh vthr flag ¼ih MCyw0&1½] us izFke lwpuk fjiksVZ izn”kZ d&1 Lo;a dh gLrfyf[kr gksuk Lohdkj dh ysfdu ’kiFk ij vfHk;kstu i{k ds dFkkud dk leFkZu u djus ds dkj.k ;g izFke lwpuk fjiksVZ ljoku ¼lClVSfUVo½ lk{; dh JS.kh esa ugha vkrh vkSj ;g vius vki es a dksbZ ldkjkRed fu"d"k vfHk;kstu ds i{k es a fudkyus ds fy, i;kZIr u gksxh Hkys gh fdlh vU; ifjfLFkfrtud lk{; ds leFkZu esa bldk lhfer ykHk vfHk;kstu i{k dks fey lds The second circumstance was the recovery of 12 bore licensee gun (Ex. 6) of the accused on the information and statement made by the accused and the three empty cartridges of 12 bore gun which were found at the place of incident clearly indicats that the bullets were fired by the 12 bore licensee gun of the accused at the time of incident and that the gun was in possession of the accused himself and not in possession of anybody else on the day of incident as is evident from the statement u/s 313 Cr.P.C. made by the accused in which he had admitted that the gun bearing No. 17466-96 belongs to him which he had deposited with Arms Dealer namely, M/s G.B. Sales Arms & Ammunation at Rampur. So far as the second circumstance is concerned the learned Sessions Judge has recorded the findings to the following effects: mDr f}rh; fopkj.kh; iz’u ds ifjizs{; esa vfHk;kstu i{k ds vuqlkj Lohdk;Z rF;ksa ,oa i=koyh ij miyC/k lk{; lkexzh ls ,slk ifjfLFkfrtud lk{; fon~;eku gS tks vfHk;qDr dks bl ekfeZd ,ao t?kU; vijk/k ls tksMs A ftu ifjfLFkfr;ksa ij vfHk;kstu i{k us vkJ; fy;k gS og fuEu gS& 1 vfHk;qDr ds fy, vkijkf/kd ekur o/k ,oa pqVSyksa dh gR;k ds iz;kl dk mn~ns’; vFkok dkj.k miyC/k gksuk A 2 vfHk;qDr dh 12 cksj dh ykbZlSUlh cUnwd] izn’kZ&6 tks mldh lwpuk o crkus ij cjken gq;h] ds }kjk gh ?kVukLFky ls cjken rhu 12 cksj ds [kks[ks dkjrwl bl cUnwd ls Qk;j fd;s x;s lkfcr gksuk rFkk ;g fd vfHk;qDr ds vfrfjDr vU; fdlh ij ?kVuk ds fnu bl cUnwd dk viyC/k u gksuk A tgka rd izFke ifjfLFkfr dk iz’u gS] vfHk;kstu dk ;g lqLi"V dFku gS fd tehu tk;nkn lEcU/kh fookn ds dkj.k eueqVko e`rdksa@pqVSyksa dks vfHk;qDr ls py jgk Fkk A blh lUnHkZ esa pqVSy lk{kh cythr flag ¼ih MCyw0&2½ dk ;g c;ku Hkh egRoiw.kZ gS fd eS gkftj vnkyr vfHk;qDr ijethr flag mQZ iEek dks tkurk gwW] ;g esjk pkpk yxrk gS gekjh tehu tk;nkn lEcU/kh fookn gkftj vnkyr eqyfte ls py jgk Fkk A bl lk{kh ls bl lEcU/k esa izfr ijh{kk esa dksbZ iz’u ugh iwNk x;k vkSj u gh bl dFku ds foijhr dksbZ vU; lq>ko gh cpko i{k dh vksj ls fn;k x;k gS vr,o ;g fufoZokn :i ls laiq"V gS fd tehu tk;nkn ds fookn ds dkj.k vfHk;qDr ijethr flag mQZ iEek e`rdksa ,oa pqVSyksa ls :"V Fkk vkSj ek= mls gh bu O;fDr;ksa ds fo:) vkijkf/kd d`R; djus dk mn~ns’; izkIr Fkk A vU; ’kCnksa esa ,sls vkijkf/kd d`R;ks a dk vn~ns’; ,d egRoiw.kZ ifjfLFkfr ,sls ekeyksa esa fxuh tk ldrh gS vkSj tSlh fd vo/kkj.kk ekuuh; lokZsPp U;k;ky; us m0iz0 jkT;&izfr&ckcw jke] 2000 lqizhe dkVZ fdzfeuy :fyaXl 860 ds ekeys esa Hkh LFkkfir dh gS A f}rh; ifjfLFkfr lEcfU/kr vfHk;qDr dh ykbZlSUlh xu ds lUnHkZ ls loZ izFke ;g bafxr djuk lehphu gksxk fd Lo;a vfHk;qDr ds vius c;ku vUrxZr /kkjk 313 n.M izfdz;k lafgrk esa ;g Li"V :i ls Lohdkj fd;k fd mldh ykbZlSUlh cUnwd dk u0 17466&96 gS vkSj ftls mlus jkeiqj esa ,d vkeZl Mhyj ls ;gka tek djk;k Fkk A ;gka foospuk vf/kdkjh bUliSDVj jktu R;kxh ¼ih0 MCyw0&9½ dh cUnwd cjkenxh djus dh lk{; ds ifjis{; esa ;g mYys[k djuk Hkh mi;qDr gksxk fd ;gh uEcj okyh nks ukyh cUnwd buds }kjk vfHk;qDr ijethr flag dh lwpuk vkSj crkus rFkk vxokbZ djus ij jkeiqj es jsyos LVs’ku ds ikl fLFkr vkXus;’kL= Mhyj eSllZ ts0 ch0 lSYl vkeZl ,.M ,E;wus’ku ds ;gka ls cjken dh x;h Fkh vkSj bldk lEiw.kZ mYys[k QnZ cjkenxh izn’kZ d&39 esa gS vkSj ftls bl lk{kh }kjk lkfcr fd;k x;k gS A ;g ykbZlSUlh cUnwd oLrq izn’kZ&6 gS vkSj bldh Hkh iqf"V lk{kh us dh A vkeZl fMyj dh nqdku ds jftLVj dh lEcf/kr bUnzkt dh izfr izn’kZ d&35 i=koyh ij gS vkSj bls Hkh bl lk{kh us vius ’kiFk ij c;ku esa iq"V fd;k gS vkSj ;g lkfcr fd;k fd ;g m)j.k nqdku ds jftLVj dk gh gS vkSj lEcfU/kr cUnwd ds bUnzkt ds fo:/k cUnwd cjken gksus ij vfHk;qDr us vius gLrk{kj fu/kkZfjr dkye esa fd;s Fks tks iBuh; gS vkSj frfFk 4-5-2000 vafdr gS A blh fnu djhc 5 cts ’kke lk{kh us ;g cUnwd vfHk;qDr dh fu’kkunsgh ij mDr Mhyj ds ;gka ls cjken dh vkSj ;g c;ku fd;k fd vfHk;qDr dh bl lwpuk ij fd ?kVuk esa iz;qDr viuh ykbZlSUlh cUnwd og cjken djk ldrk gS] ;g dk;Zokgh dh x;hA ;gka ;g vfHkO;Dr djuk Hkh mi;qDr gksxk fd vfHk;qDr dh fxj¶rkjh eq[kohj dh lwpuk ij bl lk{kh }kjk fnukad 4-5-2000 dks gh Ms<+ cts fnu :nziqj&jkeiqj jksM+ ij fLFkr lksfu;k gksVy ds ikl ls dh x;h Fkh vkSj vfHk;qDr dk nkf[ky Fkkus ij th0Mh0 jiV u0 38 le; 14&15 cts] izn’kZ d&9 }kjk fd;k x;k Fkk A ckn esa vfHk;qDr ls iqNrkN djus ij mlus ?kVuk esa iz;qDr dh tkus okyh viuh ykbZlSUlh cUnwd djken djus dh lwpuk Hkh mDr lk{kh dks nh Fkh ftldk mYys[k jiV udy ua0 39 le; 14&30] izn’kZ d&10 esa fd;k x;k vkSj cjkenxh ds mn~ns’; ls jokuxh udy jiV u0 43 le; 2&30 cts izn’kZ d&11 }kjk dh x;h FkhA cjkenxh cUnwd ds ckn okilh lk{kh e; vfHk;qDr ,oa cjken eky gq;h ftldk bUnzkt udy jiV u0 58 le; 19&45 cts izn’kZ d&12 esa fd;k x;k A cjkenxh cUnwd o fu’kkunsgh vfHk;qDr ds lEcU/k es a ;g rF; Hkh cM+k egRoiw.kZ gS fd i=koyh ij miyC/k lkexzh ls ,slk dksbZ Hkh ladsr ugh feyrk gS fd vfHk;qDr us viuh ykbZlSUlh nks ukyh cUnwd mDr vkeZl Mhyj ds vfrfjDr fdlh vkSj Mhyj ds ;gka tek djk;h gks A tSlk fd mij mYys[k fd;k x;k vkeZl Mhyj ds jftLVj ds m)j.k izn’kZ d&35 dk ;g bUnzkt Hkh egRoiw.kZ gS fd ;g cUnwd vfHk;qDr }kjk fnukad 3-5-2000 dks Mhyj ds ;gka nkf[ky dh Fkh A vU; ’kCnksa esa ?kVuk ds fnu vFkkZr 27-4-200 dks ;g ykbZlSUlh nks ukyh cUnwd vfHk;qDr ds gh dCts esa Fkh vkSj ,slh Hkh dksbZ vkHkkl vFkok ladsr ugh fd fdlh vU; O;fDr ds ikl bl chp esa ;g cUnwd jgh gks A vfHk;qDr dh fu’kkunsgh ij cjken dh x;h mldh ykbZlSUlh cUnwd izn’kZ&6 rFkk ?kVukLFky ls cjken fd;s x;s rhu [kks[kk dkjrwl 12 cksj izn’kZ&1] izn’kZ&2 o izn’kZ&3 tkap gsrq fof/k foKku iz;ksx’kkyk m0iz0] vkxjk Hksts x;s Fks tgka tkapksijkUr fjiksVZ fnukafdr 27-4-2001 rS;kj dj izsf"kr dh x;h tks vfHk;kstu i{k dh vksj ls /kkjk 293 n.M izfdz;klafgrk Vs.Mj dh x;h vkSj rnwuqlkj bl fjiksVZ dks lk{; esa fy;k x;k A ;g fjiksVZ izn’kZ d&46 i=koyh ij gS A bl xzkg; lk{; fjiksVZ fo’ksiK ls fofnr gS fd oSKkfud ,ao rduhdh tkap ds vk/kkj ij ;g ik;k x;k fd /kVukLFky ls cjken 12 cksj ds rhuksa [kks[kk dkjrwl vfHk;qDr dh ykbZlSUlh nks ukyh cUnwd u0 17466&96 ds }kjk pyk;s x;s Fks A bl oLrqijd oSKkfud ,oa rduhdh fjiksVZ esa cpko i{k dh vksj ls ,slh dksbZ ckr ugh n’kkZ;h tks fudkys x;s fuIdiZ ds lEcU/k esa fdlh Hkh izdkj dk viokn vFkok lUnsg mRiUu djs A ifj.ker% bl xzkg; lk{; ds vk/kkj ij ;g er vfHkO;Dr djuk gh mi;qDr gksxk fd ?kVuk ds rqjar ckn ?kVukLFky ls tks 12 cksj ds rhu [kks[kk dkjrwl cjken fd;s x;s Fks os vfHk;qDr dh gh mDr ykbZlSUlh cUnwd ls pyk;s x;s Fks A vU; ’kCnksa esa fopkj.kh; ifjfLFkfr miyC/k lkexzh ls iw.kr;k iq"V gq;h ftlds QyLo:Ik vfHk;qDr bl ekeys dh ?kVuk ls tksMrk gSa A The third circumstance was with regard compromise. After this incident, a compromise was made between accused and others regarding the settlement of property dispute in which it was decided that the accused should be excused. So far as the third circumstance is concerned the learned Sessions Judge has recorded the findings to the following effect: rhljh ifjfLFkfr ds lEcU/k esa loZizFke vfHk;ksxh&pqVSy vthr flag ¼ih0MCyw0 &1½ dk ;g c;ku egRoiw.kZ gS fd ^;g lgh gS fd gkftj vnkyr vfHk;qDr ls jkthukek gks x;k gS eqyfte ijethr flag mQZ iEek esjk pkpk yxrk gS^ A bl lk{kh ds pqVSy Hkzkrk cythr flag ¼ih0MCyw0 &2½ us Hkh ,slk gh c;ku fn;k fd ^;g lgh gS fd gkftj vnkyr eqyfte ijethr falag mQZ iEek tks fd esjk pkpk gS ftlls gekjk jkthukek gks x;k gS^^ A rhljs lk{kh xqjehr flag ¼ih0MCyw0 &4½ us Hkh blh ckr dks Lohdkjrs gq;s dgk fd eqyfte esjk ekSlsjk HkkbZ gS vkSj ge yksxks dk iapk;r esa jkthukek gks x;k gS ^ A pkSFks lk{kh lroar flag ¼ih0MCyw0 &4½ us Hkh mlh ckr dks Lohdkjrs gq;s ;g vkxzg fd;k fd gekjk iapk;r esa cSB dj vkilh jkthukek gks x;k gS ] iapk;r us vfHk;qDr dks ekQ dj fn;k gS * A lk{kh gjiky flag ¼ih0MCyw0 &6½ us vius c;ku esa dgk fd *eq>s ekyqe gS fd bl dk.M ds flyflys esa oknh vthr flag ds ?kj vfHk;qDr ijethr flag mQZ iEek ds ekeys essa iapk;r gq;h Fkh ysfdu eS iapk;r esa ekStwn ugha Fkk* * A ;g i;ZkIr i=koyh ij lk{; fu%lUnsg gh ?kVuk ds Ckkn iapk;r esa ekeyk mBkus dh ckr lkfcr djrh gS rFkk ;g ckr Hkh i;kZIr :Ik ls Li"V djrh gS fd iapk;r ds }kjk le>kSrs ds vuq:i vfHk;qDr dks ekQ dj fn;k x;k A The fourth circumstance was the behaviour of the accused to abscond on the day of the incident besides the fact that the accused did not plead alibi and he had simply chosen to stay away from the place of incident and not even attended the funeral of his near and dear. It is pertinent to mention here that one of deceased was his real brothers and the other two deceased were his real nephews, two of the injured are also his real nephews and the other injured namely Har Dayal Singh is the father of the accused. So far as the fourth circumstance is concerned the learned Sessions Judge has recorded the findings to the following effect: pkSFkh ,oa vfUre ifjfLFkfr ds lUnHkZ esa ;g iqu% mYys[k djuk lehphu gksxk fd vkijkf/kd ekuo o/k ds bl ekeys esasa ,d e`rd vfHk;qDr dk lxk HkkbZ] vU; nks e`rd vfHk;qDr ds lxs Hkrhts] ,d pqVSy vfHk;qDr dk firk rFkk vU; nks pqVSy vfHk;qDr ds lxs Hkrhts gSa A vfHk;kstu i{k ds vuslkj ;g ekfeZd t?kU; vijk/k :nziqj uxj ds chpksa chp fnu ds 5&45 cts fnukad 27-4-2000 dks ?kfVr gqvk A ,slh t?kU; ?kVuk dh lwpuk taxy dh vkx dh rjg dqN gh feuVksa esa uxj ds pkjksa vksj gh ugh oju~ vkl ikl ds dLcksa rd QSy tkrh gSA vfHk;qDr dh vksj ls ?kVuk ds fnu uxj ls ckgj gksus ¼ Iyh vkQ ,yhckbZ ½ dk vkxzg ugha gS A ?kVuk dh izFke lqpuk fjiksVZ ?kVuk ds fnu 55 feuV ckn Fkkus ij vafdr djk;h x;h A izFke lwpuk fjiksVZ vafdr gksus ls iwoZ fjiksVZ esa ukfer yEch vo/kh esa vfHk;qDr dks irk gksus dk iz’u gh ugh Fkk vkSj bruh i;ZIr yEch vo/kh esa vfHk;qDr dk ’kgj ls ckgj u gksus ds ckotwn Hkh vius lEcfZU/k;ksa ds chp ekStwn u jguk ,d ,slh ifjfLFkfr gS tks mlds vizR;kf’kr O;ogkj dk ifjp; nsrh gS vkSj ,slk gh ifjp; vfHk;qDr dh fxj¶rkjh fnukad 4-5-2000 rd u gksus ds vk/kkj ij Hkh fon~;eku gS A vfHk;qDr ds fo:) fjiksVZ vafdr gksus ij mldh fxj¶rkjh dk iz;kl fd;k x;k Fkk foospuk vf/kdkjh us nfo’k nh ysfdu vfHk;qDr nLr;ko ugh gqvk vkSj bl lEcU/k esa fnukad 28-4-2000 dh udy jiV jkstukepkvke la[;k 9 le; 6&25] izn’kZ d&7 dk mYys[k fd;k x;k tk ldrk gS A udy jiV ua0 51 le; 18&35 fnukad 3-5-2000] izn’kZ d&8 ;g rF; iq"V djrh gS fd vfHk;qDr fujUrj Qjkj jgk vkSj bldh lEifRr dh dqdhZ dh x;h A vfHkq;qDr dh fxj¶rkjh fnukad 4-5-2000 dks le; 1&30 cts tSlk fd mij Hkh mYys[k fd;k tk pqdk gS] foospuk vf/kdkjh }kjk eq[kchj dh lwpuk ij dh x;h Fkh A vfHk;qDr ?kVuk ds ckn ls Lo;a dks Qjkj j[ks gq;s Fkk vkSj iqfyl dh utj ls cp dgk Fkk rFkk tSlk fd mij Hkh mYys[k fd;k x;k viuh ykbZlSUlh cUnwd dks fnukad 3-5- 2000 dks vkeZl Mhyj ds ;gka nkf[ky fd;k vkSj ;g lkjk vfHk;qDr dk O;ogkj ,d ,slh lkjxfHkZr ifjfLFkfr dk tud gS tks vfHk;qDr dks ?kfVr vijk/k ls fu’p; gh tksM+us dh ,d dM+h ds :i esa lkeus vk;hA The counsel for the appellant has argued proceedings under section 82 and 83 Cr.P.C. are wholly irrelevant so far as the chain of the evidence against the appellant is concerned. Similar controversy came up before the Divisional Bench in 2003 (47) ACC 534 where their lordships has held as under:- It is also a factor to be taken note of that after the incident the accused-appellants absconded and proceedings under section 82 and 83 Cr.P.C. has to be drawn against them. The Investigating Officer Ram Chandra Dubey PW5 deposed that articles of the accused appellants were attached. Though the accused appeallants admitted the factum of attachment of their property but denied that they had absconded. There could hardly be any necessity of attaching their property, if they had not absconded. All the facts, circumstances and the injuries caused to the victim indicate as if the accused-appellants were not satisfied by simply putting her to eternal sleep. Rather they committed this murder in most cruel and diabolical manner demonstrating sadistic proclivity. The Counsel for the appellant has referred the following judgments in order to show that the statement u/s 313 Cr.P.C. is material and the conviction cannot be based on any material which was not put under section 313 Cr.P.C. The counsel for the appellant has also referred section 8 of the Evidence Act. The same reads as under: “Motive, Preparation and Previous or subsequent couduct: Any fact is relevant, which shows or constitutes a motive or preparation for any fact in issue or relevant fact. The conduct of any part, or of any agent to any party, to any suit or proceedings, in reference to such suit or proceedings, or in reference to a fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceedings, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.” As will appear from the FIR that motive as well as preparation both are available in the FIR itself as well as other chain of circumstance as referred in the judgment of AIR 1978 (S.C.) page 1025 – Smt. Nandani Satpathy Vs. P.L. Dani in which it has been stated that: “On the other hand, we must never forget that crimes, in India and internationally, are growing and criminals are outwitting the detectives. What holds good in the cities of the United States is infecting other countries, including our own. An American author in a recent book has stated: “What do u think the city of tomorrow will be? In 1969 the National Commission on the Causes and Prevention of Violence made alarming predictions. You will live in a city where everyone has guns. Houses will be protected by grills and spy equipment. Armed citizen patrols will be necessary. The political extremes will be small armies. Buses will have to carry armed guards. There will be hatred and war between the races, and between the rich and the poor. In other words, your city will be a place of terror. “From 1969 to 1974 the number of crimes from each hundred thousand people is up 38%. Violent crimes rose 47%. Robbery increased 48%. Burglary went up a whopping 53%. Theft rose 35%. The chances are becoming better and better that you or someone dear to you will be a victim. The chances are also better that the close relative will be involved in crime as criminal. “……..In only 12% of the serious crimes is there a suspect arrested. Half of those are convicted. (Serious crime includes homicide, burglary, aggravated assault, larceny over $ 50, forcible rape, robbery, and auto theft.) “The situation is so discouraging that only half the people bother to report serious crime. Even then, in 1974, 82% of the known burglaries went unsolved. That means only 18% of the half known to the police were solved. “…….President Johnson’s message to Congress March 8, 1965 is a true today as it was then: “Crime has become a malignant enemy America’s midst……. We must arrest and reverse the trend towards lawlessness …….We cannot tolerate an endless, self-defeating cycle of imprisonment, release, and reimprisonment which fails to alter undesirable attitudes and behaviour. We must find ways to help the first offender avoid a continuing career to crime. The first obligation of the criminal justice system is to secure justice by seeking and substantiating truth through proof. Of course, the means must be as god as the ends and the dignity of the individual and the freedom of the human person cannot be sacrificed by report to improper means, however worthy the ends. Therefore, ‘Third degree’ has to be outlawed and indeed has been. We have to draw up clear lines between the whirl-pool and the rock where the safety of society and the worth of the human person may co-exist in peace. In Khujji Vs State of Madhya Pradesh followingh principles has been laid down. Mr. Lalit, learned counsel for the appellant, however, argued that since the report of the serologist does not determine the blood group of the stains on the weapon and the pant of the appellant, the mere find of human blood on these two articles is of no consequence, whatsoever. In support of this contention he placed strong reliance on the decisions of this Court in Kansa Behera Vs. State of Orrisa (1987) 3 SCC 480 and Surinder Singh Vs State of Punjab 1989 Supp 2 SCC 21. In the first mentioned case the conviction was sought to be sustained on three circumstances, namely, (i) the appellant and the deceased were last seen together; (ii) a dhoti and a shirt recovered from the possession of the appellant were found to be stained with human blood; and (iii) the appellant had made an extra-judicial confession to two witnesses when arrested. There was no dispute in regard to the first circumstances and the third circumstance was held not satisfactorily proved. In this backdrop the question for consideration was whether the first and the second circumstances were sufficient to convict the appellant. This Court, therefore, observed that a few small blood stains could be of the appellant himself and in the absence of evidence regarding blood group it cannot conclusively connect the blood stains with the blood of the deceased. In these circumstances this Court refused to draw any inference of guilt on the basis of the said circumstance since it was not ‘conslusive’ evidence. This Court, however, did not go so far as to say that such a circumstance does not even provide a link in the chain of circumstances on which the prosecution can place reliance. In the second case also this Court did not consider the evidence regarding the find of human blood on the knife sufficient to convict the appellant in the absence of determination of blood group since the evidence of PW2 was found to be unispiring and there was no other circumstance to connect him with the crime. In this case we have the direct testimony of PW 1 Komal Chand, besides the testimony of PWs 3 and 4 which we have considered earlier. The find of human blood on the weapon and the pant of the appellant lends corroboration to the testimony of PW1 Komal Chand when he states that he had seen the appellant inflicting a knife blow on the deceased. The appellant has not explained the presence of human blood on these two articles. We are, therefore, of the opinion that the aforesaid two decisions turned on the peculiar facts of each case and they do not lay down a general proposition that in the absence of determination of blood group the find of human blood on the weapon of garment of the accused is of no consequence. We, therefore, see no substance in this contention urged by Mr. Lalit. The evidence on the record has fully proved the recovery of bloodstains, recovery of gun and in such circumstances the judgment of the Khujji Vs State of Madhya Pradesh (1991) 3 SCC 627 is fully applicable to the facts of the case. The counsel for the prosecution has referred the judgment of Mani Kumar Thapa Vs State of Sikkim (2002) 7 SCC 157 regarding circumstantial evidence as well as the failure of the accused to explain any inculpating circumstance under section 313 of the Cr.P.C. as under: If the prosecution case were to be confined only to the facts referred to by the learned counsel for the appellant in his presentation of the hypothesis then there may be some force in the said argument. But then while considering a hypothesis of this nature, we will have to take into consideration the entire prosecution case and the circumstances proved by the prosecution as also any legitimate inference that could be drawn from such proved circumstances. If that is done then we notice the main plank of the appellant’s hypothesis that the appellant did not know the intention of A-1 in taking away the deceased with him in his jeep, falls to the ground. In this regard we notice that it is an admitted facts as could be seen hereafter that the appellant was found in the company of A-1 on 12.2.1988 sometime in the afternoon while traveling in the jeep driven by A-1 and searching for the deceased. To the extent that he was with A-1 on that afternoon is admitted by the appellant himself in his statement under section 313 Cr.P.C. From the evidence of PWs 3,5 to 9, 11 and 12, the prosecution has established that A-1 and the appellant ultimately met the deceased and took him away in the jeep driven by A-1. During that time PW 5 also accompanied these accused persons and the deceased to some distance in the jeep. It is a fact that then the appellant did not in any manner indicate that he shared the common intention of A-1 in taking the deceased away. But then if we examine the conduct of the appeallant we find that if really the appellant did not know the object for which the deceased was being taken in the jeep, one would have expected as a natural conduct at least after PW 5 alighted from the vehicle, the appellant would have asked A-1 the purpose of taking the deceased with them. The appellant had done no such thing nor has the appellant given any explanation in his statement under section 313 Cr.P.C. in this regard. The explanation in this regard is only found in the argument of the learned counsel in this Court which is that the appellant being an obedient subordinate of A-1, might not have questioned the authority of his superior. We do not think such an explanation is acceptable to anybody. If really the appellant was innocent, having known that a crime is committed, any prudent person if he was innocent, would certainly have tried to dissuade A-1 from committing a crime and if he failed in his attemped, he would have certainly taken steps to see that his non-involvement is safeguarded by seeking help from others. Failure to do so makes us infer that the appellant already knew the intention of A-1 and acquiesced with the same. Here we would also note that in the normal course if the deceased was being taken for interrogation or for the purpose of keeping him away from any mischief that A-1 suspected him of planning to commit in the meeting of the chief Minister then the normal destination would have been the police station but that was not the direction in which the vehicle was moving, therefore it is legitimate for us to conclude that the appellant knew that the deceased was being taken towards the checkpost with certain other oblique motive. This conduct of the appellant in not trying to find out the reason for taking the deceased and the destination further strengthens our inference that the appellant knew well in advance what was the reason and the destination to which the deceased was being taken. Assuming for argument’s sake that he was obedient or innocent of ignorant enough to keep quite right through the journey then one would have expected him on his return at least to have informed of the incident to same person in authority or at least to a friend with a view to exculpate himself from the incident in which the deceased lost his life except what he told PW 5 on 13th and 16th of Feburary, which, of course, is only one of the versions of his story which the appellant had adopted to mislead the investigation. This statement of PW 5 apart we see there is nothing which the appellant did which is in consonance with his innocence. Per contra, it is seen that the appellant accompanied A-1 in the evening of 12-2-1988 to a farewell function organized to bid farewell to one of their colleagues, this also indicates the appellant’s conduct in sharing A-1’s intention. It is further seen that on 13.2.1988 the appellant accompanied A-1 and went to Ramam Checkpost without there being any official reason for the same except to deliver two torchlights. We find it difficult to believe that the appellant who witnessed a crime to which he is not a party, would venture to go again with A-1 on

13.2.1988 to the scene of the occurrence if he was actually innocent. It is also to be noticed that even though on 13.2.1988 he told PW 5 about the incident of 12.2.1988 without inculpating himself, he again goes to Ramam Checkpost on 14.2.1988. This constant visit to the place of the incident along with A-1 makes the hypothesis presented on behalf of the appellant highly improbable and gives sufficient room to infer that the appellant did know and share the intention harboured by A-1 in the crime. If we analyse the prosecution evidence further it is seen that in regard to traveling in the jeep from where they picked up the deceased then on to Ramam Checkpost and back, we see the appellant has given 3 different version on 3 different occasions. To PW5 he stated that while taking the deceased towards Singla from the checkpost, he allowed him to run away from the jeep after they crossed Ramam Checkpost when A-1 had got down from the jeep to ease himself. To PW 36 he told that when they were bringing a smuggler from Darjeeling side to Ramam Checkpost i.e. from the opposite direction the smuggler escaped from the jeep and in the process of running he fell down and suffered fatal injuries. In his statement under Section 313 Cr.P.C. before the court, he stated that on 12.2.1988 he had gone to Soreng on the orders of his SP as the Chief Minister was visiting Soreng and on the evining of that day as he did not have any vehicle, he took a “lift” in the vehicle of A-1 up to Jorethang from where he went to his quarters and Accused 1 went to Naya Bazar Dak Bunglow as he was camping there on duty. These 3 different versions which are self- contradictory further show that the appellant has not been consistent in his stand as to what happened on 12.2.1988. This Court in the case of State of Maharashtra Vs Suresh has held that a false answer offered by the accused when his attention was drawn to any inculpating circumstance would render such circumstance as capable of inculpating him. The Court also held that in such a situation a false answer can also be counted as providing “a missing link” in compeleting the chain. If the said principle in law is to be accepted, the statement of the appellant made under section 313 Cr.P.C. being palpably false and there being cogent evidence adduced by the prosecution to show that the appellant had given two other versions as to the incident of

12.2.1988, we will have to proceed on the basis that the appellant has not explained the inculpating circumstances established by the prosecution against him which would form an additional link in the chain of circumstances. Then again there is another factor to be taken note of in regard to the sharing of the common object of A-1 by the appellant. It has come in the evidence of PW 5 that the appellant had told him that after the body of the deceased was taken from the place where it had fallen in the first instance, the appellant had taken away certain possible identification matereials like panchayat seal and some personal papers with a view to create false evidence as to the whereabouts of the deceased. This also indicates the involvement of the appellant in the crime. These circumstances and inferences drawn from such proved circumstances establish beyond all reasonable doubt that the appellant did share the common intention of A-1 in taking the deceased away in the jeep driven by A-1 and causing the murder, therefore, the hypothesis of innocence pleaded on behalf of the appellant in our opinion is not in consonance with the innocence the appellant. On the contrary, the chain of circumstantial evidence the prosecution has been able to establish beyond all reasonable doubt that the appellant did share the common intention of A-1 in abducting the deceased, causing his death as also causing disappearance of evidence of offence under section 201 IPC. The Counsel for the prosecution has also referred the judgment of Bodhraj alias Bodha and others Vs. State of Jammu & Kashmir (2000) 8 SCC 45 on circumstantial evidence. An extract of the same is quoted below: “It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (see Hukun Singh Vs State of Rajasthan, Eradu Vs. State of Hyderabad, Earabhadrappa Vs. State of Karnataka, State of U.P. Vs. Sukhbasi, Balwinder Singh Vs. State of Punjab and Ashik Kumar Chatterjee Vs. State of M.P. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In bhagat Ram Vs. State of Punjab it was laid down that where the case depends upon the conclusion from circumstances the cumulative effect of circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt. We may also make a reference to a decision of this Court in C. Chenga Reddy Vs. State of A.P. wherein it has been observed thus: (SCC pp. 206-07, para 21) is drawn should be “21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.” In Padala Veera Reddy Vs. State of A.P. it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: (SCC pp. 710-11, para 10) “10. (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and the circumstantial evidence (4) to sustain conviction must be complete and incapable of explaination of any other hypothesis that that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.” in order In state of U.P. Vs. Ashok Kumar Srivastava it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. Sir Alfred wills in his admirable book “Wills’ Circumstantial Evidence” (Chapter IV) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in al cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt; and (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted. After relying upon the aforesaid facts the Apex Court has come to the conclusion that conviction can be based solely on the circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence and it should be a complete chain in the following manner:- A reference may be made to a later decision in Sharad Birdhichand Sarda Vs State of Maharashtra. Therein, while daling with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are: (1) (2) (3) (4) (5) The circumstances, from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established; The fact so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; The circumstances should be of a conclusive nature and tendency; They should exclude every possible hypothesis except the one to be proved; and There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. Further, in Hanumant Govind Nargundkar Vs State of M.P. it was observed thus: (SCC pp. 345-46, para 10) “it is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.” The Counsel for the prosecution has also referred the judgment of Alla China Apparao and others Vs. State of A.P. (2000) 8 SCC 440 on circumstantial evidence. An extract of the same is quoted below: “A question that now arises is that where first information report is shown to have actually been recorded without delay and investigation started on its basis, if any delay is caused in sending the same to the Magistrate which the prosecution fails to explain by furnishing reasonable explanation, what would be its effect upon the prosecution case. In our view, ipso facto the same cannot be taken to be a ground for throwing out the prosecution case if the same is otherwise trustworthy upon appreciation of evidence which is found to be credible. However, if it is otherwise, an adverse inference may be drawn against the prosecution and the same may affect the veracity of the prosecution case, more so when there are circumstances from which and inference can be drawn that there were chance of manipulation in the first information report by falsely roping in the accused persons after due deliberations. Reference in this connection may be made to decisions of this Court in the cases of Pala Singh Vs. State of Punjab, Sarwan Singh Vs. State of Punjab, State of Karanataka Vs. Moin Patel, Harpal Singh Vs. Devinder Singh, Shiv Ram Vs. State of U.P., Anil Rai Vs. State of Bihar and Munshi Prasad Vs. State of Bihar. Lastly it was submitted that no blood was found on the weapons of assault recovered by the investigation Officer. It may be stated that the trial court in its judgment has taken note of this fact and did not drawn any inference therefrom against the prosecution in view of the fact that the weapons were recovered from a pipt in which water was flowing, as such non-existence of blood thereon was quite natural. We do not find any infirmity in the reasoning of the trial court on this score. In view of the foregoing discussion, we are of the opinion that the High Court has not committed any error in upholding convictions and sentences awarded against the appellants.” The object of section 313 Cr.P.C. has been explained in Basavaraj R. Patil Vs. State of Karanataka in paragraph 18. The same is quoted below: “What is the object of examination of an accused under section 313 of the Code? The section itself declares the object in explicit language that it is “for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him”. In Jai Dev Vs. State of Punjab, AIR 1963 SC 612: (1963) (1) Cri LJ 495), Gajendragadkar. J. (as he then was) speaking for a three-Judge Bench has focused on the ultimate test in determining wheather the provision has been fairly complied with. He observed thus (Pars 21 of AIR and Cri LJ): “The ultimate test in determining wheather or not the accused has been fairly examined under section 342 would be to enquire whether, having regard to all the questions put to him, he did get an opportunity to say what he wanted to say in respect of prosecution case against him. If it appears that the examination of the accused person was defective and thereby a prejudice has been caused to him, that would no doubt be a serious infirmity.” The learned counsel for the prosecution has referred the judgment in criminal appeal No. 257 of 2002 in the case of Chandra Mohan Singh Vs. State of Uttaranchal delivered by Hon’ble P.C. Verma, A.C.J. and Irshad Hussain, J which is quoted below: “Before proceeding scrutinize incriminating circumstances relied upon by the prosecution, it is desirable to state that the legal proposition as to when conviction can be recorded on circumstantial evidence has been settled by a catena of decision of the apex court and the different High Courts. The legal position has also recently been reiterated by the apex court in the case of Mohibur Rehman and another Vs. State of Assam, 2002 AIR SCW 3523. The Hon’ble Judges observed that:- “It is well settled by a catena of decision of this Court that in order to find conviction of circumstantial evidence each of the imcriminating pieces of circumstantial evidence should be proved by cogent and reliable evidence and the Court should be satisfied that the proved pieces of circumstantial evidence taken together forge such a chain wherefrom no inference other than of guilt can be drawn against the accused persons or, in other woeds, the proved pieces of circumstantial evidence should not be capable of being explained on any hypothesis other than the guilt of the accused.” The Counsel for the appellant has referred the following judgments viz. Jagir Singh Vs.State (Delhi) 1975 Vol. 3 SCC page 562- Para 7; Satpaul Singh Vs. Delhi Administration 1976 Vol. I SCC page 729 (Para 39, 42, 44, 52, 54, 55); Bhagwan Singh Vs. State of Haryana 1976 SCC (Cri page 7) para 8; Ravinder Kumar Day Vs. State of Orrisa 1977 SC page 170 (Para 10, 11, 12); Sayid Akbar Vs State of Karnataka AIR 1979 SC page 1848 (Para 12, 13); Gura Singh Vs. State of Rajasthan 2001 Vol. II SCC page 205 (Para 8, 9, 10, 11, 12); K. Angara Vs. State of Kerala 2001 (42) ACC page 786 (Para 3, 4, 5, 7). None of the judgments tallies with the facts of the present case in as much as the circumstantial chain fully establishes the guilt of the accused appellant. The State has also referred the judgments of Subimal Sarkar Vs. Sachindra Nath Mundal and others J.T. 2003(1) S.C. 72 (Para 8) and State of U.P. Vs. Arun Kumar Gupta J.T. 2003 (1) S.C. 49 (Para 17) in order to show that the motive alone is sufficient for conviction. In state of U.P. Vs. Arun Kumar Gupta J.T. 2003 (1) S.C. 49 (Para 17) the following observations were made by the Hon’ble Judge: “From the above decision of this Court it is clear that in such circumstances when the prosecution fails to send the blood stained material the chemical examiner a reasonable doubt arises as to the genuineness of the prosecution case in regard to the recovery of such material. It is also relevant to notice at this stage the factum of recovery of the blood stained earth was not put to the respondent when his statement was recorded under section 313 Cr.P.C. From the above discrepancies noticed by us in the evidence of PWs 7 and 9 and also from the omission on the part of the prosecution in sending blood stained material to the serologist we are sonstrained to doubt the prosecution case in regard to the recovery. Coming to the evidence of PW 2, who says that he had seen the respondent take the deceased from his shop on 27th May, 1988, it should be noticed that this person is of the same biradari as of the deceased and was a close friend of the father of the deceased for over 20 years. The defence has suggested that he is actually the brother-in-law of PW 1, but the same is denied. The facts remains that this witness is an interested witness. From the material produced by the prosecution, it shows that this witness was taking extraordinary interest in the investigation and was present at practically every important place and time in the course of the investigation. The High Court has very elaborately discussed the evidence of this witness and has rejected the same for good reasons with which we agree. In our opinion, the evidence of this witness does not inspire much confidence. From the above discussion, in our opinion that the prosecution has been able to establish only a motive as againt the respondent for committing the murder, while most of the circumstances which are otherwise important to be proved in this case have not been established. We are of the opinion, the High Court was justified in interfering with the judgment of the sessions judge and allowing the appeal. Therefore, the chain of circumstances highlighted by the prosecution presents a complete picture which absolutely rules out the role of any other person then the person described in the F.I.R. by the complainant immediately after the occurance had taken place. For the foregoing reasons we find no substance and merit in the appeal and the same is hereby dismissed. The conviction and sentence to life imprisonment awarded against him is confirmed. The appellant is in jail and he shall serve out the sentence imposed by the Sessions Judge. Let the record of the trial be sent back to the Court concerned for compliance of the order. (Rajesh Tandon, J.) (M.M. Ghildiyal, J.) Dated: 30th April, 2004 HN