Malkeet Singh v. State of Uttranchal (Now State of Uttarakhand)

learned counsel for the State and perused the lower court record. (3) Prosecution story in brief is that, on 03.06.1998, at about 4.00 p.m, Bishan Singh @ Bishni (deceased) alongwith his brother Kulwant Singh @ Nikku (PW2) had gone from their village Kalabuta to village Tharu 4 Gidhor for getting their bicycles repaired. There, they met accused/appellants, who were their relatives. A quarrel took place between them over the dispute, as to the repayment of some loan. Bishan Singh @ Bishni, and Kulwant Singh @ Nikku snatched two bicycles of the accused. At about 8.00 p.m., on the very day, when the two brothers were returning back to their village, and were about to reach village Kalabuta, the accused/appellants Baggu Singh armed with a gun, Bagga Singh armed with PATAL (heavy sharp edged weapon), and other two namely Malkeet Singh and Bhagwan Singh armed with country made pistols intercepted them. Accused Baggu Singh fired a shot from the gun at Bishan Singh @ Bishni, who died at the spot. Accused/appellants Bagga Singh assaulted Kulwant Singh @ Nikku (PW2) with PATAL and gave several blows. Meanwhile, on hearing the sound of fire PW1 Rano Kaur (wife of the deceased), PW3 Surjit Singh (brother of the deceased), rushed towards the place of incident. The place of incident is said to be about 100 meters away from their house. The said two witnesses saw Bishan Singh @ Bishni lying dead on the spot, and they further saw the accused/appellant Bagga Singh assaulting Kulwant @ Nikku. They also saw the accused Baggu Singh armed with a gun, standing there. As the villagers reached at the spot the accused/appellants Baggu Singh, Bagga Singh, Malkeet 5 Singh and Bhagwan Singh ran away from the scene of occurrence. At about 10.30 p.m., on the same day (03.06.1998), the First Information Report (Ex- A1) was lodged at police station Nanakmatta, against the four accused relating to offences punishable under section 302/307 of I.P.C., which was registered as Crime No. 122 of 1998. The distance between the place of incident and police station is said to be 16 kms. Injured Kulwant Singh @ Nikku was taken to Government Hospital, at Khatima, where his injuries were examined by PW4 Dr. S.B. Oli at about 11.45 p.m. The investigation was taken up by Sub Inspector Kewalanand Arya ( PW6), who took the dead body of Bhishan Singh @ Bishni in the early hours of

04.06.1998, and got prepared the inquest report ( Ex A- 7). He also got prepared other necessary papers like sketch of the dead body ( Ex A-8), police form no. 13 ( Ex A-9) and sample seal ( Ex A-10). The dead body of Bishan Singh @ Bishni was sent for post portem examination. PW 5 Dr. J.S. Pangti conducted post mortem examination on 04.06.1998 and prepared autopsy report ( Ex-A6). He observed multiple fire arm wounds on the dead body of the deceased and opined that he (Bishan Singh @ Bishni) had died of shock and haemorrhage due to ante mortem of fire arm injuries suffered on the lungs. The Investigating Officer interrogated the witnesses, and took the two bicycles 6 and one cartridge from the place of incident and recovery memos ( Ex A-2) and (Ex-A3) were prepared. Later, blood stained shirt given by the injured was also taken into possession. The injury report (Ex-A5) prepared by PW4 Dr. S.B.Oli discloses that there were three lacerated wounds, two incised wounds, and one abrasion on the person of Kulwant Singh @ Nikku . After completion of investigation the Investigating Officer submitted charge sheet ( Ex A14) against all the four accused namely Baggu Singh, Bagga Singh, Malkeet Singh and Bhagwan Singh for their trial in respect of offences punishable under section 302 and 307 of I.P.C. (4) It appears that Additional Judicial Magistrate, on receipt of the charge sheet, after giving necessary copies to the accused as required under section 207 of Cr.P.C., committed the case to the court of Sessions for trial. The then Learned Sessions Judge, Udham Singh Nagar, to whom the case was committed, on

15.06.1999, after hearing the parties, framed charge of offences punishable under section 302 read with section 34 and under section 307 read with section 34 of I.P.C., against all the four accused namely Malkeet Singh, Bhagwan Singh, Bagga Singh and Baggu Singh, to which they pleaded not guilty and claimed to be tried. On this prosecution got examined PW1 Rano 7 Kaur (widow of the deceased and eye witness), PW2 Kulkwant Singh @ Nikku (injured eye witness), PW3 Surjeet Singh (informant and eye witness), PW4 Dr.S.B.Oli (who examined injuries on the person of the injured), PW5 Dr. J.S.Pangti (who conducted post morterm examination on the body of the deceased), PW6 Sub Inspector Kewalanand Arya (Investigating Officer) and PW7 Constable Bhupendra Singh (who proved the extract of the General Dairy ). The Oral and documentary evidence was put to the accused under section 313 Cr.P.C., in reply to which, they alleged that evidence adduced against them was false. They further pleaded that they have been falsely implicated due to enmity. However, no evidence in defence was adduced. After hearing the parties, Learned Sessions Judge, Udham Singh Nagar, found accused/appellant Baggu Singh guilty of charge of offences punishable under section 302 I.P.C. and under section 324/34 of I.P.C. The other three accused namely Bagga Singh, Malkeet Singh and Bhagwan Singh, were found guilty of charge of offences punishable under section 302/34 and 324/34 of I.P.C. All the four stood acquitted from the charge of offence punishable under section307/34 of I.P.C. After hearing on sentence, each one of the convicts was sentenced to imprisonment for life under section 302/34 of I.P.C., and rigorous imprisonment for a period of six months under section 324/34 of I.P.C. 8 Aggrieved by said judgment and order dated

03.03.2003, these appeals are preferred by the convicts before this court. (5) Before further discussion, we think it just and proper to mention here the ante mortem injury mentioned by PW5 Dr. J.S.Pangti in the autopsy report ( Ex A-6) prepared by him after post mortem examination of the body of Bishan Singh @ Bishni (deceased). The same is being reproduced below :- “ Multiple fire arm injuries over front of chest, both sides both shoulders and arms various sizes ½ cm x ½ cm to ¼ cm x ¼ cms. the margins inverted. Some are cavity deep some are muscle deep. 7 pallets recovered and sealed ” The aforesaid medical officer ( Dr. J.S.Pangti) opined that deceased had died of shock and haemorrhage due to ante mortem fire arm injuries suffered by him on his lungs. From the medical evidence on record read with inquest report ( Ex-A7) prepared by PW6 Sub Inspector Kewalanand Arya, it is proved beyond reasonable doubt that Bishan Singh @ Bishni died homicidal death. Now, the question before us is whether murder of Bishan Singh @ Bishni was committed by the accused/appellants with common 9 intention as suggested by prosecution or not. (6) PW2 Kulwant Singh @ Nikku is the star eye witness of the incident, who has suffered injuries. He has stated that on the day of incident at about 4.00 p.m. he alongwith his brother (deceased) had gone to village Tharu Gidhor for getting repaired their bicycles. There they met the accused/appellants Bagga Singh, Malkeet Singh, Baggu Singh and Bhagwan Singh, who were their relatives. The witness further states that they had a quarrel with the accused/appellants over repayment of some loan which was said to have been taken by accused/appellant Bagga Singh from Bishan Singh @ Bishni (deceased). PW2 Kulwant Singh @ Nikku further stated that he and his brother snatched bicycles from the accused/appellants. He further told that at about 8.00 p.m. when they were about to reach to their village (Kalabuta), accused/appellant Baggu Singh armed with a gun, accused/appellant Bagga Singh armed with a PATAL (heavy sharp edged weapon) and the other two accused/appellants armed with country made pistols and LATHIS came there, and Baggu Singh fired a shot at Bishan Singh @ Bishni, and killed him. The injured witness further narrated that accused Bagga Singh assaulted him with PATAL. He has further stated that his family members reached there, and saved him. PW2 Kulwant Singh @ 10 Nikku has stated that he was taken to Government Hospital at Khatima, where his injuries were examined. PW4 ( Dr. S.B.Oli) has corroborated the statement regarding medical examination of the injuries on the person of injured witness (Kulwant Singh @ Nikku) at about 11.45 p.m. on 03.06.1998. He (Dr. S.B.Oli) further disclosed that he found following injuries on the person of the injured observed in injury report ( Ex A-5) prepared by him :-

#1. Lacerated wound of 6cm x 3cm x bone deep of antena 1/3 of scalp clotted blood present.

#2. Lacerated wound of 2cm x 1cm x bone deep over left parital bone, clotted blood present.

#3. Lacerated wound 4cm x 3cm x bone deep over right parital bone, clotted blood present.

#4. Incised wound of 3cm x 2cm x muscle deep on left fore arm, clotted blood present.

#5. Incised wound of 3cm x 1cm x muscle deep over lower lumbar spine, clotted blood present.

#6. Abrasion of 6cm size on right shoulder. (7) PW1 Rano Kaur (widow of the deceased) has stated that she reached at the spot after hearing the sound of fire at 9.00 p.m. on the day of incident and saw her husband lying dead. She further stated that she 11 saw accused Bagga Singh assaulting Kulwant Singh @ Nikku with PATAL. The witness further states that she saw accused Baggu Singh armed with gun present at the spot. She has further stated (in the cross examination) that when she reached at the place of incident Bhagwan Singh and Malkeet Singh had ran away towards the jungle. (8) PW3 Surjeet Singh is the brother of the injured eyewitness, who has supported the prosecution story as mentioned above, and further proved the lodging of the First Information Report ( Ex A-1) by him. (9) On careful examination of the evidence on record , which was read out before us, we agree with the trial court to the extent that prosecution has successfully proved charge of offences punishable under section 302 and 324/34 of I.P.C against the accused/appellant Baggu Singh, and further proved the charge beyond reasonable doubt as against the accused/ appellant Bagga Singh, in respect of offence punishable under section 302/34 and 324 of I.P.C. The statements of the injured eye witness cannot be disbelieved as against them. However, as to the role of other two accused/appellants namely Malkeet Singh and Bhagwan Singh, their false implication due to enmity cannot be ruled out. None of the three eyewitnesses 12 have stated as to any active role on the part of these two accused/appellants. Apart from this, in the First Information Report it is mentioned that they were armed with the pistols, but in the statements of the eye witnesses one of them is shown to be armed with LATHI. All the three witnesses have stated that only one fire was shot. PW2 Kulwant Singh @ Nikku ( the injured) has stated that said fire was shot at Bishan Singh by accused/appellant Baggu Singh. Though, PW1 Rano Kaur in her examination in chief makes a statement as to the presence of accused/appellants Malkeet Singh, Bhagwan Singh at the spot, but in the cross examination she stated that by the time she reached, the two had ran away towards the jungle. At

8.00 p.m. it cannot be said that she could see the running person in the jungle. As far as, the role of Baggu Singh and that of Bagga Singh is concerned, they were said to be at the spot. They were known to the eyewitnesses. PW3 Surjeet Singh has stated that he reached at the spot with a torch with him. As such, relating to the role of accused/appellant Baggu Singh and accused/appellant Bagga Singh, there is no room to doubt the prosecution case. (10) For the reasons as discussed above, we are of the view that Criminal Appeal No. 79 of 2003, filed by accused/appellant Malkeet Singh and Bhagwan Singh 13 deserves to be allowed. Accordingly, the same is allowed. The impugned judgment and order dated

03.03.2003, passed by Sessions Judge, Udham Singh Nagar, in Sessions Trial No. 30 of 1998, is set aside to the extent conviction and sentenced recorded against the said two accused. They (Malkeet Singh and Bhagwan Singh) are acquitted giving them benefit of reasonable doubt from the charge of offence punishable under section 302/34 and 324/34 of I.P.C. They are on bail. They need not to surrender. (11) However, the remaining two Criminal Appeals i.e. Criminal Appeal No. 86 of 2003, filed by convict Bagga Singh, and Criminal Appeal No. 141 of 2003 filed by convict Baggu Singh, are liable to be dismissed for the reasons discussed above. Accordingly, the said two appeals are dismissed. Conviction and sentence recorded by the trial court as against them is affirmed. They are on bail. Their bail is cancelled. Let a copy of this judgment be sent to the lower court to make accused/appellants Baggu Singh and accused/appellant Bagga Singh to serve out the sentence awarded against them. (Servesh Kumar Gupta, J.) (Prafulla C. Pant, J.)

25.02.2012 N.P 14 N.P 15