Criminal Appeal No. 69 of 2008 · Uttarakhand High Court · 2012

Judgment

1. This appeal, preferred under Section 374 of the Code of Criminal Procedure, 1973 (for short (cid:147)Cr.P.C.(cid:148)), is directed against the judgment and order dated 10.01.2008 passed by learned Sessions Judge, Udham Singh Nagar in Sessions Trial Nos. 80 of 2005, 81 of 2005 and 82 of 2005 whereby accused appellants Hansa @ Hans Raj Singh and Bansa @ Harvans Singh have been convicted under Section 302 of the Indian Penal Code, 1860 (for short (cid:147)IPC(cid:148)) and each one of them has been sentenced to imprisonment for life and directed to pay fine of Rs. 10,000/-. Each of the accused / appellants has further been convicted under Section 25 of the Arms Act and sentenced to undergo rigorous imprisonment for two years.

Heard Mr. Suresh Kumar Mishra, Amicus Curiae for the appellants and Mr. D.K. Sharma, Deputy Advocate 2 General with Mrs. Mamta Bisht, AGA for the State/respondent and perused the lower court record.

3. The prosecution story, in brief, is that on 30.05.2004 PW1 Kuldeep Singh lodged a First Information Report (Exhibit A1) at police station Nanakmatta, in which it was stated by him that on said date, when he was going from village Bichuwa to village Tukadi along with his brother-in-law Chhinder on a bicycle, in Village Bisaura accused appellants Hansa @ Hans Raj Singh and Bansa @ Harvans Singh armed with firearms, fired shots at Chhinder (deceased) who died on the spot. It was also reported in the First Information Report that Chhinder (deceased) was an accused in the murder case of Sunder, brother of present accused / appellants. On the basis of said report, crime no. 275 / 2004 was registered against both the appellants relating to offence punishable under Section 302 IPC at police station Nanakmatta. The investigation was taken up by PW 11 Bhagat Singh Rawat, who went to the spot on the very day and took dead body of Chhinder in his possession and got prepared the inquest report (Exhibit A15) in presence of the witnesses. The Investigating Officer further got prepared the police form no. 13 (Exhibit A17), sketch of the dead body (Exhibit A18), sample of seal (Exhibit A19), site plan (Exhibit A20) and interrogated the witnesses. During investigation PW7 Sub Inspector K.K. Sharma, PW9 Constable Desh Raj Singh and some other police personnel apprehended both the accused / appellants Hansa @ Hans Raj Singh and Bansa @ Harvans Singh within the limits of village Bisaura on 02.06.2004 and recovered one country made gun along with four cartridges from accused Hansa and one country made pistol along with two cartridges from accused Bansa. Separate crime nos. 276 of 2004 and 277 of 2004 were registered against both the accused 3 in respect of offence punishable under Section 25 of the Arms Act. The said crime numbers were investigated by PW10 Sub Inspector Ramphal Singh. Meanwhile, dead body of Chhinder was sent for postmortem examination. PW5 Dr. Chandra Prakash conducted autopsy on the dead body on 31.05.2004 and prepared postmortem examination report (Exhibit A6). The medical officer recorded as many as ten ante mortem injuries including firearm(cid:146)s injuries. The Medical Officer opined that deceased had died due to haemorrhage and shock, as a result of ante mortem injuries.

4. On completion of the investigation, PW11 Bhagat Singh Rawat submitted a charge-sheet (Exhibit A21) against accused appellants Hansa @ Hans Raj Singh and Bansa @ Harvans Singh for their trial in respect of offence punishable under Section 302 IPC. On the other hand, after obtaining the sanction from the District Magistrate for prosecution, two separate charge-sheets, relating to offence punishable under Section 25 of the Arms Act (Exhibit A13), were filed against accused appellants Hansa and Bansa by PW10 Sub Inspector Ramphal Singh.

5. On receipt of the charge-sheets, Magistrate, after giving necessary copies to the accused as required under Section 207 Cr.P.C., appears to have committed all the three cases to the court of Sessions, for trial. From the charge-sheet in respect of offence punishable under Section 302 IPC, Sessions Trial No. 80 of 2005 was registered by the Sessions Court and from other two charge-sheets relating to offence punishable under Section 25 of the Arms Act, Sessions Trial No. 81 of 2005 and Sessions Trial No. 82 of 2005 were registered. 4

6. Learned Sessions Judge, Udham Singh Nagar, after hearing the parties, framed charge of offence punishable under Section 302 IPC against accused Hansa @ Hans Raj Singh and Bansa @ Harvans Singh on 07.10.2005 to which they pleaded not guilty and claimed to be tried. Separate charge was framed in respect of offence punishable under Section 25 of the Arms Act on the same date against both the accused, who pleaded not guilty and claimed trial, in respect of the said offence also.

7. On this, all the Sessions Trials were consolidated and prosecution got examined PW1 Kuldeep Singh, complainant and eye witness; PW2 Prem Kaur, eye witness and sister of Chhinder (deceased); PW3 Head Constable Bal Krishan Arya, who registered the First Information Report at police station Nanakmatta under Section 302 IPC and made necessary entry in the General Diary; PW4 Minto Kaur, eye witness; PW5 Dr. Chandra Prakash, who conducted postmortem examination on the dead body of Chhinder; PW6 Constable Clerk Narayan Dutt Joshi, who made entry of the recovered weapons at police station. PW7 Sub Inspector K.K. Sharma, who was witness of arresting of accused appellants and recovery of weapons; PW8 Constable Dharam Veer was witness of inquest report; PW9 Constable Desh Raj Singh, who was also witness of recovery of weapon and arresting of accused; PW 10 Sub Inspector Ramphal Singh, who investigated the crime relating to offence punishable under Section 25 of the Arms Act; PW 11 Inspector Bhagat Singh Rawat, who investigated the crime no. 275 of 2004 relating to offence punishable under Section 302 IPC.

8. The oral and documentary evidence was put to both of the accused under Section 313 Cr.P.C. in reply to which they alleged the same to be false. In defence, DW1 Teerath Singh and 5 DW 2 Pahalwan Singh were got examined. DW1 Teerath Singh stated that he heard that Chhinder was killed by one Preetam Singh. DW2 Pahalwan Singh stated that on 30.05.2004 both the accused Hansa @ Hans Raj Singh and Bansa @ Harvans Singh were busy in hoeing the sugarcane field.

9. After hearing the parties, learned Sessions Judge found that prosecution has sufficiently proved the charge of offences punishable under Section 302 IPC and the one punishable under Section 25 of the Arms Act against both the accused. Thereafter, parties were heard on sentence and each one of the accused was sentenced to imprisonment for life and directed to pay fine of Rs. 10,000/- under Section 302 IPC, and two years(cid:146) rigorous imprisonment under Section 25 of the Arms Act. Aggrieved by the said order dated 10.01.2008 passed by Sessions Judge, Udham Singh Nagar in Sessions Trial Nos. 80/2005, 81/2005 and 82/2005, this appeal is preferred by the convicts.

10. Before further discussion, we think it proper to mention ante mortem injuries found on the dead body of Chhinder by PW5 Dr. Chandra Prakash on 31.05.2004. Ante mortem injuries recorded in autopsy report (Exhibit A6) are being reproduced below: (cid:147)i. Lacerated wound size 2 cm X 1 cm on left medial side of chest 6 cm below axilla. ii.

0.5 cm X 0.5 cm in size 1 cm above from injury no.

1. iii. Lacerated wound size 1.5 cm X 1 cm, 3 cm above injury no. 2 towards back. iv.

0.5 X 0.5 cm wound half open 4 cm above injury no. 3. 6 Edges of all the four injuries are inverted and abraded collar in all four injuries. v. Entry wound size 3 X 4 cm on left side of perineum 3 cm away from anal orifice towards back of thigh. On dissection the pellets were found embedded upto 6 cm upward till base of scrotum. Edges are inverted and abraded collar. v. Superficial abrasion on front of chest size 2 cm X 2 cm on epigastrium. vii. Abrasion of 1.5 cm X 1 cm on right side of front of lower chest 10 cm. below nipple. viii. Abrasion 2.5 X 1 cm on front of chest 6.5 cm. above to injury no. 6. ix. Contusion of 2 cm X 0.5 cm on left front of chest 6 cm away from injury no. 7 to apex of heart. x. Six entry wounds of 0.5 X 0.5 in an area of 4 cm X 4 cm on back, 17 cm. below from base of neck, edges inverted and collar present.(cid:148) From the above mentioned injuries read with statement PW5 Dr. Chandra Prakash, it is established on record that Chhinder Singh had died a homicidal death on 30.05.2004.

11. Now, this Court has to see whether accused appellants Hansa @ Hans Raj Singh and Bansa @ Harvans Singh have committed the murder of Chhinder in the manner suggested by prosecution or not? PW1 Kuldeep Singh, complainant and eye witness has said that he had gone to his in-laws(cid:146) house in village Tukadi, Nanakmatta and Chhinder was his brother-in-law (SALA). This witness further told that on the day of incident, he along with his brother-in-law Chhinder had gone on bicycle to village Bichuwa and while returning from there towards village Tukadi on the way near 7 village Bisaura accused appellants Hansa and Bansa armed with firearms fired indiscriminately and shot Chhinder Singh dead. This witness has also proved First Information Report (Exhibit A1) lodged by him at police station Nanakmatta. He has further proved the memo of taking blood stained soil from the place of incident and memo of recovery of bicycle, lying at the spot. He has further proved the inquest report prepared by the police. This witness was subjected to lengthy cross- examination but nothing has come out from his statement, which shakes his testimony.

12. PW2 Prem Kaur and PW 4 Minto Kaur (both eye witnesses) have corroborated the statement of PW1 Kuldeep Singh. These two witnesses have stated that on the date of incident accused appellants Hansa and Bansa fired shots at Chhinder Singh and killed him.

13. On behalf of the accused appellants, it is argued that PW2 Prem Kaur is sister of deceased and not an independent eyewitness. It is also argued that the presence of PW4 Minto Kaur is doubtful, as her name did not figure in First Information Report as witness.

14. Having gone through the statements of these two witnesses and after considering the arguments advanced on behalf of appellants, we are of the view that merely for the reason that PW2 Prem Kaur is sister of deceased, her testimony cannot be discarded, particularly, when it is corroborated from the statement of other eyewitnesses. As far as absence of names of two eyewitnesses namely Prem Kaur and Minto Kaur in the First Information Report is concerned, we are of the view that there is sufficient reason found on the record for such absence. 8 In this connection, it is pertinent to mention that Kuldeep Singh (complainant) belongs to District Lakhimpur Kheri and the incident has taken place in District Udham Singh Nagar where he had gone to her in-laws(cid:146) house. In these circumstances, it was natural that he was unable to know every person, who passed through at the time of incident in village Bisaura. The incident is a day light incident. Apart from this prosecution has brought the motive of commission of crime by the accused appellants on the record. It has been stated by the witnesses that Chhinder (deceased) was accused in the case of murder of Sunder (brother of accused appellants).

15. Learned Amicus Curiae argued that from the site plan it appears that there were several residents near the place of occurrence, who were not examined by the prosecution. This argument is not tenable because on close scrutiny of the evidence on record, we find that it is nowhere mentioned that anyone of them witnessed the incident, except Hukumat Singh. Assuming that the residents saw the incident but normally it is found that unknown persons are reluctant to come and depose before the court against the accused and mere non examination of Hukumat Singh does not shake the testimony of other three eye witnesses.

16. Lastly, it is argued by the Amicus Curiae that there is no report of ballistic expert on record to connect the accused appellants committing the murder with the weapons said to have been recovered. It would have been better, if the prosecution had sent the weapons to the ballistic expert for his opinion but for the lapse on the part of the Investigating Officer this Court is not inclined to disbelieve the ocular testimony of the three eyewitnesses. Had it been a case of circumstantial 9 evidence, it would have been a material link to connect the weapon with the crime. As far as offence punishable under Section 25 of the Arms Act is concerned, there is sufficient evidence adduced by PW7 Sub Inspector K.K. Sharma and PW9 Constable Desh Raj Singh that unlicensed country made gun and country made pistol along with cartridges were recovered from the accused appellants. Sanction given by the District Magistrate is also proved by PW10 Sub Inspector Ramphal Singh.

17. In the above circumstances, we do not find any error of law or anything wrong in appreciation of evidence on the part of the trial court. We concur with the view of the trial court that prosecution has successfully proved the charges of offences punishable under Section 302 IPC and under Section 25 of the Arms Act. Sentences awarded against the convicts / appellants are also just and proper in the circumstances of the case.

18. Accordingly, the appeal is dismissed. Let the copy of this judgment be sent to the Superintendent of Jail concerned. Lower court record be sent back. (Servesh Kumar Gupta, J.) (Prafulla C. Pant, J.) 06.06.2012 SKS