Dilbag Singh alias Bagha vs State Of Uttarakhand

Lok Pal Singh, J.

This appeal, preferred under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), is directed against the judgment and order dated 21.11.2011, passed by learned Sessions Judge, Udham Singh Nagar in Sessions Trial No. 321 of 2007, whereby the appellant has been convicted under Section 302 of IPC and was sentenced to imprisonment for life.

2) Prosecution story in brief is that complainant Smt. Usha Kaur w/o Tara Singh lodged a complaint with P.S. Khatima, District Udham Singh Nagar on 21.08.2017, stating therein, that accused had enmity with her husband due to some property dispute owing to consolidation proceedings and he often used to ask them to leave the field and construct their house on their own plot. It is further stated in the complaint that on 21.08.2007, at 08:30 P.M., when her husband was returning from the house of Prem Nath and was going towards the house of Shiv Kumar, on the kuccha pathway, accused Dilbag Singh, his wife Rani Kaur and son Gursewak, armed with lathi, danda and kanta (a sharp edged weapon) assaulted her husband. Accused Dilbag Singh severed the neck of complainant's husband on right side and repeatedly assaulted him with gandasa (a sharp edged weapon). Shiv Kumar his wife Smt. Ramawati and Mangli Prasad, who were present at some distance, reached there and identified accused Dilbag Singh, his wife and son, in the light of torch. On this, all the accused fled away towards their house. Thereafter, all the villagers assembled there and when the complainant reached at the place of incident she found her husband dead. The incident was witnessed by PW2 Shiv Kumar, PW3 Mangli Prasad and PW8 Rama Devi (wife of PW2). Soon after the incident, on hearing the shout, PW5 Vidhyasagar and PW6 Daljeet Singh also reached at the spot.

3) On the basis of said report, chik FIR (Ext. A-4A) was lodged against the accused in respect of offence punishable under Section 302 of IPC. The Investigating Officer took the dead body of Tara Singh in his possession and prepared inquest report. Thereafter, the dead body was sent for postmortem examination. The Investigating Officer collected bloodstained soil and simple soil from the spot and prepared recovery memo in respect thereof. The accused was arrested on 22.08.2007. The weapon used in the commission of crime was also recovered. After completion of investigation, charge sheet (Ext A-6) was filed against the accused for his trial in respect of offence punishable under Section 302 of IPC.

4) The case was committed to the court of Sessions for trial, after giving necessary copies to the accused, as required under Section 207 of the Cr.P.C. Learned Sessions Judge, Udham Singh Nagar, after hearing the prosecution and the defence, framed charge against the accused relating to offence punishable under Section 302 of IPC, to which the accused pleaded not guilty and claimed to be tried.

5) On this, prosecution got examined PW1 Usha Kaur (complainant and wife of the deceased), PW2 Shiv Kumar (eyewitness); PW3 Mangli Prasad (another eyewitness), PW4 Mohan (witness to preparation of inquest report), PW5 Vidhya Sagar (another witness of preparation of inquest report), PW6 Daljeet Singh (witness to preparation of memo of recovery of bloodstained and simple soil), PW7 Dr. Anand Mohan Raturi (who conducted postmortem on the dead body of Tara Singh); PW8 Rama Devi (yet another eyewitness), PW9 Constable Vijay Singh (who prepared chik FIR), PW10 In-charge Inspector Mahendra Singh Rawat (Investigating Officer), PW11 Inspector Rajan Lal Arya (who started the investigation of the case) and PW12 In-charge Inspector Ajay Dhyani (who prepared recovery memo of the murder weapon). The oral and documentary evidence was put to the accused under Section 313 of Cr.P.C., in reply to which he alleged the evidence adduced against him to be false. An opportunity was given to the accused to lead evidence in defence. However, no evidence in defence was adduced on his behalf. The trial court, after hearing the prosecution and the defence, found the accused guilty of charge of offence punishable under Section 302 of IPC, and after hearing the parties on sentence, sentenced him to under imprisonment for life. Aggrieved against the same, present criminal appeal has been filed by the accused-appellant.

6) We have heard learned counsel for the parties and perused the entire evidence on record.

7) Before further discussion, it is pertinent to mention here, the ante mortem injuries found on the person of deceased Tara Singh at the time of postmortem examination. Following ante mortem injuries were found on the person of the deceased, which were recorded by Dr. Anand Mohan Raturi (PW7) in his postmortem report (Ext. A-4), on 22.08.2007, at about 02:30 P.M.:

i) Incised wound on right side neck going from 2 cm ant. laterial aspect of midline - 12 cm X 7.5 cm in size, vertebra C 4-5 divided completely. .

ii) Incised wound on right arm, 205 cm x .75 cm, muscle deep.

iii) Abrasion on left ear.

In the opinion of the Medical Officer, who conducted the postmortem examination the cause of death was due to ante mortem neck injury leading to haemorrhage.

8) PW1 Usha Kaur, who is widow of the deceased, stated in her examination-in-chief that accused Dilbag Singh is her nephew. The land of deceased came in the field behind the house of accused in consolidation proceeding. Accused wanted that the deceased and his family members should leave this field and started living in their own plot and due to this reason he harboured enmity with the deceased. PW1 stated that on the fateful day (she did not remember the month and year, but according to her the date was 21st and it was a Tuesday) at about 08:30 P.M., when her husband Tara Singh was returning from the house of Prem Nath and was going towards the house of Shiv Kumar, on the kuccha pathway, accused Dilbag Singh assaulted repeatedly on the neck of her husband with gandasa, due to which the neck of her husband got severed and he died on the spot. Shiv Kumar (PW2), Mangli Prasad (PW3) and other co-villagers witnessed the said incident. These persons saw the incident in the light of torch. Dilbag Singh fled away from the place of occurrence, on seeing these persons, after committing murder of husband of PW1. On raising the hue and cry, when PW1 reached the place of occurrence along with her children, she found the dead body of her husband lying on the kuccha pathway in a pool of blood. PW1 proved the complaint (Ext. A-1). PW1 specifically stated that though she had named Rani Kaur and Gursewak, wife and son of the accused-appellant respectively, in her complaint, but the murder of her husband was committed by Dilbag alone.

9) In her cross-examination, PW1 stated that she had no knowledge whether the lady with whom the marriage of Dilbag Singh was solemnized, had illicit relationship with her husband prior to her marriage, or not? PW1 further stated that the house of Prem is approximately at a distance of 60 paces from her house. PW1 was in her house when the murder of her husband took place and she reached at the place of incident herself after hue and cry was raised in the village. PW1 found the neck bone of her husband severed and the dead body lying on the ground. PW1 remained at the place of incident till 10:00-10:30 P.M. Shiv Kumar (PW2) and Mangli Prasad (PW3) told her as to who had committed the murder of her husband and with which weapon. Nothing has come in the cross-examination of PW1 which can be of some help to the accused-appellant.

10) There are as many as three eyewitnesses of the incident who have narrated that accused-appellant Dilbag Singh gave blow with gandasa on the neck of deceased Tara Singh. PW2 Shiv Kumar, who was present near the place where the incident took place and is the natural and independent eyewitness has narrated that accused Dilbag Singh and deceased Tara Singh are respectively, maternal uncle and nephew, in relation. He further narrated that on the day of incident at about 08:30 P.M., he along with his wife Ramawati (PW8) was sitting on a cot in his courtyard. His neighbour Mangli Prasad (PW3) was also sitting with them. Suddenly they heard the sound of whipping, on which they thought that somebody is assaulting someone with lathi. PW3 had a torch with him and when they moved ten paces towards the place of incident, in the light of the torch, they saw Dilbag singh @ Bagha assaulting Tara Singh with gandasa on the kuccha pathway. On seeing these witnesses, the accused went towards his house along with the weapon of assault. On raising hue and cry, many people, including PW1, came there. The neck of deceased Tara Singh was found severed. PW3 Mangli Prasad, another eyewitness, was also present at the place of incident on the fateful day. The evidence adduced by PW3 is also trustworthy and natural one. PW3 too has corroborated the entire facts which PW2 stated in his statement on oath. PW8 Rama Devi, wife of PW2 Shiv Kumar, was also present at the place of incident. She too has reiterated what has been stated by PW2 and PW3 in their evidence and fully corroborated the prosecution story. All the three eyewitnesses have stated that they witnessed the whole incident in the light of torch. The entire above narration is natural and trustworthy. There is no reason to doubt the truthfulness of the statements of the above witnesses.

11) PW4 Mohan is the witness of the preparation of inquest report. PW4 proved his signatures on the inquest report (Ext. A-7). PW5 Vidhya Sagar is the gram Pradhan of village Sarpuda Ramkola. PW5 stated that the accused and the deceased were maternal uncle and nephew in relation and they had a land dispute between them. PW5 is also a witness of preparation of inquest report. He proved his signatures on the inquest report (Ext. A-7). PW6 Daljeet Singh is a relative of deceased Tara Singh. PW6 is a witness of preparation of memo (Ext A-2) regarding taking into possession bloodstained soil and simple soil from the place of incident. PW6 proved the memo (Ext. A-2). PW6 was also present with the police party which arrested Dilbag Singh on 22.08.2007 from the jungle. PW6 is also a witness of arrest and preparation of memo (Ext. A-3) regarding recovery of murder weapon on the pointing of the accused-appellant from his house under the cot. PW6 was got declared hostile by the prosecution.

12) PW7 Dr. Anand Mohan Raturi is the Medical Officer, who conducted postmortem examination on the dead body of Tara Singh on 22.08.2007 and proved the postmortem report (Ext. A-4), as mentioned in para 7 above. PW9 Constable Vijay Singh is a formal witness, who proved the chik report (Ext. A-4A). PW10 In-charge Inspector Mahendra Singh Rawat, is the subsequent investigation Officer of the case. He started the investigation of case crime no. 3858 of 2007, under Section 302 of IPC and recorded the statement of the complainant and other witnesses. PW10 submitted charge sheet against the accused-appellant. He proved the charge sheet (Ext. A-6).

13) PW11 Inspector Rajan Lal Arya is the investigating officer, who started the investigation of the case. PW11 prepared the inquest report, sent the dead body of Tara Singh for postmortem. He proved the inquest report (Ext. A-7). PW11 also prepared photo lash, sample seal, Form no. 13, letter to the Chief Medical Superintendent requesting for postmortem on the dead body of Tara Singh. He proved the same as Ext. A-8 to Ext. A-11, respectively. PW11 also prepared site plan of the place of incident and proved the same as Ext. A-12. PW11 arrested the accused on 22.08.2007 and recovered the weapon used in the commission of crime on his pointing. He proved the recovery memo (Ext. A-3) thereof. In his cross-examination, PW11 deposed that though farsa, kanta and gandasa are different weapons, but the villagers called them by a common name. He further deposed that when he reached the village on 21/22.08.2007 during night, only electric poles were standing there and no electric cables were connected to these poles. According to PW11, petromax (a type of kerosene lamp) was there on the spot. Nothing adverse has come in his cross-examination which creates doubt over his testimony. PW12 Inspector Ajay Dhyani has stated on oath that he recorded the statements of Constables Naveen Chand, Kundan Singh, who were witnesses to preparation of memo of recovery of weapon used in the commission of crime. PW12 prepared the site plan of place of recovery of weapon used in the murder and proved the same as Ext. A-17.

14) On behalf of learned counsel for the appellant it is argued that the prosecution has not proved the motive for the commission of crime. In our opinion, in a case where there is direct evidence of eyewitnesses, the motive has little relevance. Apart from this, it has come in the evidence that the accused-appellant and the family of deceased had enmity owing to consolidation proceedings prior to the date of incident and accused-appellant often used to threaten the deceased and his family members to leave the field and to construct their house on their own plot. That itself indicates the motive of commission of crime.

15) It is also contended by learned counsel for the appellant that the incident occurred during night and there were only electric poles and no electric light in the place of incident. In her complaint, PW1 had clearly stated that Shiv Kumar (PW2), his wife Rama Devi (PW8) and Mangli Prasad (PW3) reached the place of incident. All of them identified the accused-appellant in the light of torch. PW1 has stated on oath that PW2 Shiv Kumar, PW3 Mangli Prasad and PW8 Rama Devi, who were her neighbours, had witnessed the incident in the light of torch. Dilbag Singh fled away from the place of occurrence, after committing the murder of her husband, on seeing these persons. PW2, PW3 and PW8 have fully corroborated the prosecution story. There is no substance in the argument advanced on behalf of the accused-appellant, as the prosecution has successfully shown the source of light i.e. torch in which the accused-appellant was seen fleeing from the place of occurrence after committing the murder of deceased Tara Singh.

16) It is next contended by learned counsel for the appellant that there is variation in the statements of the witnesses regarding the weapon used in the commission of crime. In the FIR, the complainant stated that accused-appellant killed her husband with kanta, whereas the prosecution witnesses have stated that farsa and gandasa were used in the commission of crime. We find no force in the contention of learned counsel for the accused-appellant as all the witnesses are rustic villagers and most of them are illiterate. PW6 Daljeet Singh has stated on oath that kanta, farsa and gandasa are the same and were called by different names. On showing said weapon to the eyewitness by the prosecution, all the eyewitnesses at once identified the same and told that it was the same gandasa, which appellant Dilbag Singh @ Bagha used in the murder of deceased Tara Singh. All the eyewitnesses have fully corroborated the prosecution story that they have witnessed the accused-appellant assaulting deceased Tara Singh with the gandasa. PW6 Daljeet Singh, who is a witness to preparation of recovery memo of bloodstained gandasa, recovered on the pointing of the appellant, has stated on oath that the appellant himself has admitted in his presence that the gandasa with which he severed the neck of Tara Singh was kept concealed in his house beneath the cot. The fact regarding the weapon of assault has also been corroborated in the cross-examination of the prosecution witnesses and the prosecution has been fully successful in proving said fact against the accused-appellant.

17) Not only the evidence of PW1 gets corroborated from above postmortem report (Ext. A-4) but also from the prosecution story narrated by eyewitnesses PW2, PW3 and PW8. Eyewitnesses PW2, PW3 and PW8 have stated that the incident occurred in their presence on 21.08.2007, at about 8:30 P.M. These eyewitnesses further stated that accused-appellant repeatedly assaulted Tara Singh with gandasa and severed his neck. All these three witnesses have corroborated the statement of PW1 also on the point that they have witnessed the whole incident in the light of torch.

18) The above clinching evidence of eyewitnesses read with the postmortem report of the deceased is sufficient to prove that appellant Dilbag Singh @ Bagha committed murder of Tara Singh. Apart from this, from all the facts and circumstances brought on record by the prosecution in the form of oral and documentary evidence as discussed above, the charge of commission of murder by appellant Dilbag Singh @ Bagha stands proved beyond all reasonable doubt.

19) In view of the above discussion, we do not see any error of law or that of the fact in the impugned judgment and order of the trial court in convicting and sentencing the appellant. Accordingly, the appeal is liable to be dismissed and the same is hereby dismissed. Accused-appellant Dilbag Singh @ Bagha is in jail. A copy of this judgment be sent to the Superintendent of jail concerned, where he is currently serving out his sentences.

20) Let a copy of this judgment along with the lower court record be also sent to the court below for ensuring compliance.