Ompal and Others vs State of Uttarakhand

Servesh Kumar Gupta, J.—Challenge herein is to the judgment and order of conviction u/s 302 IPC rendered by the Additional Sessions Judge/Ist FTC, Roorkee, District Haridwar on 19.8.2004. The Sessions Trial No. 442/96, against the appellants Ompal, Dharampal and Yogesh pertaining to the offences under sections 302 and 297 I.P.C., and another Sessions Trial No. 441/96, which was only against the accused appellant Yogesh for the offence u/s 25/27 Arms Act, were adjudicated together. The learned Trial Judge did not find the charge u/s 25/27 Arms Act proved against the accused Yogesh and, accordingly, absolved him from the said charge. However, the accused appellants, having been found guilty of the offence u/s 302 IPC in Sessions Trial No. 442/96 pertaining to Crime No. 134/96, P.S. Mangalore, were appropriately sentenced. The prosecution case, as disclosed in the FIR Ex. Ka-2 lodged within three hours of the incident, is that on 13.6.1996 at about 10.15 A.M., the deceased Rajendra Singh and his wife Smt. Beermati were on a bullock cart. They were coining to the village from their agricultural field after fetching the fodder (grass) for the animals. The informant Mahendra Singh, real brother of the deceased, was also proceeding towards the village and he was at some distance behind the cart. When the said cart was approaching near the village, two of the accused, namely, Sahensarpal and Yogesh suddenly appeared from inside a nearby agricultural field. Sahensarpal, at the strength of rifle in his hand, and Yogesh, armed with the revolver in his hand, showed gestures to stop the deceased who was driving the bullock cart. Seeing the accused persons coming towards the cart showing such gestures, the deceased sensed the trouble. He left the cart and took to his heels towards the village. Both Sahensarpal and Yogesh chased Rajendra Singh. Having covered the distance of 100-130 yards, Rajendra Singh was confronted with other two accused persons, namely, Ompal and Dharampal, brothers of Sahensarpal, who appeared from the side of thoroughfare nearby the house of a villager Zile Singh. Ompal and Dharampal, who were armed with the country-made pistols, challenged the deceased asking him as to where he was striving to escape and threatened to teach him a lesson for pursuing the various criminal cases against them. Meanwhile, Ompal exhorted his brother Sahensarpal to shoot Rajendra Singh. At this, all the four accused persons opened fire from their respective lethal weapons. Hearing the noise of fire, other villagers, namely, Sanjeev, Mukesh, Rishipal and several others, who happened to be present in the surrounding vicinity, came at the spot to rescue Rajendra Singh, but none could muster the courage to rescue the victim having seen the firearms in the hands of the accused persons. Sahensarpal opened another fire as a sign of warning to all the persons present there and said that if anyone would come forward, he shall also meet with the same fate. After murdering Rajendra Singh, accused Ompal inserted a wooden peg in his anus. Thereafter all the accused persons chased the informant Mahendra Singh saying that he was successful in saving himself on the earlier occasions and would also be finished that day. However, somehow he could save his life by running fast and taking shelter in the village. All the four aforenamed accused persons, threatened to kill the complainant in future and escaped towards south in the agricultural farms. The chick report is Ex. Ka-20.

Police came into action. As the victim had died on the spot, the inquest report Ex. Ka-11 was prepared there itself. Inquest proceedings commenced at 13.10 hours and the same could be reduced into writing by 18.25 hours on that very day. In the opinion of the members of inquest, Rajendra Singh died on account of injuries caused on his throat and temple. Nonetheless, they all recommended for the post-mortem. The wooden peg, which was about 5 inches long and inside the anus of the deceased, was also seen by the members of the inquest.

Autopsy was conducted by Dr. P.K. Bhatnagar on 14.6.19% at 11.45 A.M. in District Hospital, Haridwar. The deceased was estimated to be 51 years old. Following ante mortem injuries, as recorded in the post-mortem report Ex. Ka-2, were found on the person of the deceased:

(1) Gunshot wound of entry on right side face (lacerated on left side), just anterior to right ear, 3 x 3 c.m. brain cavity deep, blackening and tattooing present around the wound in an area of 4 x 4 c.m.

(2) Gunshot wound of entry 4 x 3 c.m. chest cavity deep on right supra clavicular region with fracture of right anterior and middle cranial fossa and 7th cervical vertebrae, tattooing present Around the wound in an area of 8 x 6 c.m.

(3) Contusion on the right inguinal region 5 x 4 c.m.

In the opinion of the doctor, the above injuries were half to one day old. However, in the oral testimony, he has testified that the death of the victim had taken place around 10.15 A.M. on the previous day due to the firearm injuries. Thus, the time assessed by the doctor matches with the time of incident. Doctor opined that the deceased died as a result of shock and haemorrhage due to ante mortem injuries.

The Investigation Officer recovered the wooden peg, which was found entered in the anus of the deceased. The recovery memo thereof dated 13.6.1996 is Ex. Ka-5. The Investigation Officer also recovered a live cartridge (not mentioned as to of what bore this cartridge was) from the place of occurrence on that day itself and prepared the recovery memo Ex. Ka-6. On the same day, two empty cases of the cartridge of 8 mm and one empty case of cartridge of 12 bore were also recovered from the spot by the Investigation Officer. Recovery memo thereof is Ex. Ka-7. The bloodstained and plain soil was also taken in the possession from the spot and recovery memo Ex. Ka-9 was prepared. The site plan of the place of incident is Ex. Ka-10. The Investigation Officer also recovered the blood-smeared clothes of Smt. Beermati, who in order to save her husband had covered his body by falling upon him. The said recovery was made on 17.6.1996 vide memo Ex. Ka-1. The Investigation Officer also recovered a country-made pistol and two live cartridges of 12 bore at the instance of the accused Yogesh on 23.6.1996. The recovery memo of the same is Ex. Ka-18. So, a separate case was registered against him for the offence of section 25/27 Arms Act and after investigation, charge-sheet Ex. Ka-22 was also submitted against the accused Yogesh for the said offence.

The investigation culminated into the submission of charge-sheet Ex. Ka-19 against all the accused persons for the offence of sections 302/297 IPC. Charge sheet was submitted against the co-accused Sahensarpal while he was still absconding. As such, the charges could be levelled for the offences punishable u/s 302/34 and 297/34 IPC against the accused Yogesh, Ompal and Dharampal only. In another Sessions Trial No. 441/96, proceeded against the accused Yogesh only, charge for the offence of section 25/27 Arms Act was levelled, but the learned Trial Judge did not find the said offence proved against the accused Yogesh and acquitted him accordingly. Both these trials proceeded together and have been adjudicated as aforementioned.

Prosecution has examined as many as nine witnesses. P.W. 1 is Smt. Beermati, wife of the deceased, P.W. 2 Mahendra Singh is the brother of the deceased, P.W. 3 is Dr. P.K. Bhatnagar, who conducted the autopsy, P.W. 4 Sanjeev Kumar, P.W. 5 Mukesh Kumar and P.W. 6 Balendra Singh, are the residents of the same village Nagla Salar, P.W. 7 is S.I. Mahesh Chandra, who investigated this murder case and submitted the charge-sheet, P.W. 8 is Head Moharrir Kishan Giri, who entered the FIR in the diary of the police and P.W. 9 is Rajbeer Singh, who was posted as Sub Inspector at the relevant time and who did some initial investigation in the matter.

Thereafter statements of the accused persons u/s 313 Cr.P.C. were recorded. They denied their complicity in the crime and stated that they have been falsely implicated on account of enmity. It has further been stated by the accused persons that a criminal prosecution was ongoing against Virendra, real brother of the complainant, for the murder of Sukhbeer Singh (father of the appellants). Virendra was convicted and sentenced to life imprisonment for the murder of Sukhbeer Singh, and Sahensarpal, who was an accused in the instant case, was also murdered by the complainant side and they were facing the trial for the same. So, for these reasons they have been implicated falsely.

We have heard learned Counsel for the appellants as well as learned Counsel for the State and also rendered our very anxious consideration on the merits of the case.

We feel that it is the case of planned cold blooded murder, diabolically conceived and cruelly executed by all the four accused persons named in the FIR, albeit out of the four accused, charge was levelled only against the three, who were tried and convicted. Fourth accused Sahensarpal never got arrested nor did he surrender in the Court, and continued to abscond.

P.W. 1 Smt. Beermati is the wife of the deceased. She was sitting on the bullock cart along with the deceased after fetching the animal fodder from the agricultural fields. She has proved that as the cart arrived at the outskirts of the village, Sahensarpal and Yogesh, armed with rifle and pistol respectively, appeared and tried to stop their cart and, sensing trouble, her husband Rajendra Singh ran towards the village. Soon the accused Sahensarpal and Yogesh, who were chasing her husband opened fire from their respective firearms. She has stated that she cannot tell as to how many shots they had fired and how many of them hit the deceased while he was running. We feel that the inability of this witness to narrate the details of firing is quite natural because in such most sensible awefull and challenging moments, it is not possible for any lady far less a rustic village woman to count the number of fires opened by accused persons chasing to kill her husband and she herself was running behind raising screams to call the people (if any) in the vicinity in order to save him. P.W. 1 Smt. Beermati has verified that her elder brother-in-law (P.W. 2 informant) was about 50 paces behind them when the accused interjected them while coming to the village.

As is evident from the testimony, it is quite possible that none of the fires, which were opened by Yogesh and Sahensarpal while chasing the deceased, hit him. The fire made by them could hit Rajendra Singh when he took the reverse turn as he noticed that Ompal and Dharampal, real brothers of Sahensarpal, also suddenly came in front from the opposite side of the road. This could be deduced by the nature of injury No. (2), which is 4 x 3 c.m. chest cavity deep because such injury on the chest could not have been caused by Sahensarpal and Yogesh while chasing the deceased from behind. Although P.W. 1 has stated that Ompal and Dharampal also opened fire, but it can be deduced that the fire opened by them could not hit the deceased because only two firearm wounds of entry have been found on the dead body. The first gunshot wound of entry was lacerated on the ear 3 x 3 c.m. brain cavity deep. Around the wound, in the area of 4 x 4 c.m., the blackening and tattooing were present. Second gunshot wound of entry was 4 x 3 c.m. chest cavity deep, which has caused even the fracture of 7th cervical vertebrae and tattooing was present around this wound too. It shows that both these gunshot wounds were caused by opening fire on the deceased from the close range and the same was not caused from any 12 bore pistol or gun, but by the cartridge of rifle and cartridges of 9 mm pistol held respectively by Sahensarpal and Yogesh. Unfortunate aspect of this case is that neither the live cartridge nor the empty cases of the bullets K1, K2 and K3 recovered from the spot nor the bullets taken out from the body were sent for the forensic analysis. Bloodstained clothes of Smt. Beermati and the bloodstained soil collected from the spot were also not sent to the Forensic Science Laboratory for analysis. This is serious lapse on the part of the Investigation Officer. At the same time, we gather from the testimony of the Investigation Officer (P.W. 7) that he was cross-examined at length by the defence Counsel, yet no question was asked from him in this regard as to why he did not send these significant pieces of evidence for forensic analysis. As such, in the absence of any such suggestion/question to the Investigation Officer in his cross-examination by the defence Counsel, no benefit of the said lapse in the investigation can be extended to the accused appellants. We also cannot be oblivious of the fact that the three bullets, each of 1 c.m. in diameter, were found in the brain region, while a 3 c.m. long bullet was recovered from the right lung of the deceased. This 3 c.m. long bullet and 3 other bullets having diametre of 1 c.m., cannot be of 12 bore cartridge. Moreover, merely because of the reason that the Investigation Officer has not done his duty meticulously, it is difficult to belie the ocular testimony of P.W. 1 and P.W. 2, as from their testimony we can infer that Ompal and Dharampal, though have been shown to be armed with the country-made pistols in their hands, either did not open the fire or if opened the fire the same did not hit the deceased. However, it is proved on the record that Ompal and Dharampal did come at the place of occurrence from opposite side of thoroughfare in order to corner the victim. Had it not been so, there was no reason for the deceased to take a reverse turn. We can discern that as the victim turned back to see Ompal & Dharampal, the fire opened by chasing Sahensarpal hit him who had arrived very close by that time. That is the reason blackening and tattooing were present in the injury No. (2). This can only be done with a premeditated plan to commit this crime. As such, the element of common intention, which pre-supposes the concerted plan, as envisaged u/s 34 I.P.C., is well present in the instant case. Our view is further fortified by the fact that all the four accused persons, after commission of the crime, brandishing their firearms, ran together towards the jungles situated in the south of the place of occurrence.

Learned Counsel for the appellants has argued that it was not natural on the part of the deceased to run towards north, where two accused persons, namely, Ompal and Dharampal were already waiting for him to come. This contention would have substance only if we suppose that it was well within the knowledge of the deceased that Ompal and Dharampal were waiting for him at the distance of 100-125 paces in the north. There was no reason for the deceased to anticipate the presence of these accused persons in the north. It was quite natural for him to run towards the residential units of the village which were very near in the north in order to save his life. It is difficult to imagine that the deceased did have knowledge of hidden presence of Ompal and Dharampal in the side of thoroughfare.

Learned Counsel for the appellants has put forth a submission that P.W. 2 Mahendra Singh was being tried for the murder of Sukhbeer Singh, who was the father of the accused persons. So, it was quite unnatural on the part of the accused persons to pinpoint Rajendra Singh sparing Mahendra Singh, the real culprit in their eyes. Had they been revengeful, then the accused persons would have killed Mahendra Singh first rather than to shoot Rajendra Singh, who was only pursuing the criminal litigation to defend his brothers.

The above contention of learned Counsel is not acceptable for the reason that Mahendra Singh was about 50 paces behind the bullock cart and it can be visualized that Sahensarpal and Yogesh, who were waiting for the bullock cart, could not notice that Mahendra Singh was also coming from behind. Moreover, we gather from the evidence on record that the two families had acute enmity with each other, on account of which the entire family of the complainant was on target. As the accused first saw Rajendra Singh, so he was targeted. Rajendra Singh was chased towards north, while Smt. Beermati was also following them, shouting for the help. So, in these circumstances, it was quite probable that the accused Sahensarpal and Yogesh did not notice the presence of sluggish Mahendra Singh, who was in his early seventies, and they had chose Rajendra Singh as their prey. After committing the murder, when the accused persons satisfied themselves that they have finished their desired work, then they noticed the presence of Mahendra Singh, who had arrived close to the place of occurrence by that time. Seeing the complainant, they ran towards him and also opened the fire, but somehow he could be successful in saving himself by taking shelter in the village. When the accused had gone from the spot, then Mahendra Singh returned there after 15-20 minutes and saw that wooden peg inserted in the anus of his deceased brother Rajendra Singh. However, the learned Trial Court has not found the accused guilty of the said offence punishable u/s 297 IPC for the reason that in the post-mortem report, the doctor has not recorded any abrasion in the anus of the deceased. We feel that the doctor, who has conducted the autopsy, did not perform his task very carefully. It may also be possible that he was unaware of the fact that a wooden peg was inserted to the depth of five inches in the anus of the deceased. As such, it appears that the learned Trial Court has recorded the acquittal of the accused persons from the offences u/s 297 IPC as the medical evidence did not support the said allegation of the prosecution. Trial Court did not find it appropriate to punish the accused persons for the said offence merely on the basis of oral testimony. So, there is no scope for us to interfere on this aspect. As regards acquittal of accused Yogesh from the offence of section 25 Arms Act, again there is no scope for us to interfere with the same because State has not preferred any appeal against such acquittal.

It has been argued by the learned Counsel for the appellants that the blood-smeared clothes of Smt. Beermati were recovered after four days of the incident, and it is quite unnatural on her part to keep these clothes intact for four days. We are not inclined to accept this argument for the reason that when there is long persisting enmity and cross criminal litigation between the two parties, even an illiterate, rustic village lady can remain sensible towards these aspects. The same can also be done on the advice of family members and well-wishers. Further, we find from the testimony of Smt. Beermati that no question or suggestion was put to her in the cross-examination on this aspect by the defence Counsel. Moreover, the Investigation Officer has also stated that since Smt. Beermati was very traumatized and shocked, therefore, he inquired from her after four days of the incident and on that very day (17.6.1996), he had recovered her bloodstained clothes. As such, the accused appellants do not derive any benefit from the fact that the said bloodstained clothes were recovered after four days of the incident.

It has been further contended by the learned Counsel for the appellants that P.W. 1 Smt. Beermati, who has stated that she had fallen over the body of her husband in order to save his life, could not wait at the spot till the inquest proceedings were completed on the date of occurrence as her signature on the inquest report Ex. Ka-11 is not present. We feel that this argument does not have any substance for the reason that in the rural traditional life, a lone woman is not supposed to keep her presence for five hours at a stretch near the dead body, particularly when a large number of male persons of the village had gathered on the spot. It has come in the evidence of P.W. 2 Mahendra Singh that she used to veil her face in his presence. These conventions in the village traditional life are very usual and keenly observed in the society. So, after remaining for a reasonable time with the dead body, leaving the spot by P.W. 1 for her home, which was within an ace of a short distance, was quite natural on her part. She was not supposed to put her signature on the inquest report, which was concluded almost after five hours of the incident.

Our attention has been drawn towards very minor discrepancies and the hyper technical omissions on the part of the Investigation Officer, e.g., absence of noting the crime number on various prosecution papers or the absence of the endorsement of Reserve Inspector, Police Line on various prosecution papers. In our considered view, these incongruities are of very minor nature and only on the basis thereof, the otherwise reliable ocular testimony adduced by the prosecution cannot be disbelieved and thrown away. Needless to say that in a number of judgments, it has been propounded by the Hon''ble Apex Court that no criminal case is free from the minor flaws. What remains to be seen is whether any of them strikes to the root of the prosecution version. If it does not, the same should be ignored in order to cull out the truth. In case of State of Himachal Pradesh v. Lekh Raj and another 1999 (39) ACC 986 (SC), it has been observed by the Supreme Court that the traditional dogmatic hyper technical approach has to be replaced by rational, realistic and genuine approach for administering justice in a criminal trial. Criminal jurisprudence cannot be considered to be a Utopian thought but have to be considered as part and parcel of the human civilization and the realities of life. The Courts cannot ignore the erosion in values of life which is a common feature of the present system. Such erosions cannot be given a bonus in favour of those who are guilty of polluting society and the mankind.

Learned Counsel for the appellants has relied upon an authority of Hon''ble Supreme Court rendered in the case of Jalpat Rai and others v. State of Haryana 2011 (74) ACC 692, wherein out of six accused persons, five were acquitted and only one accused (A2) was convicted, whereas all the six accused persons were alleged to be indulged in the indiscriminate firing and it had also come in the ocular testimony that all the six were participating in the crime. In this case, too, the rival parties were having the long-standing enmity with each other because they were adversaries in the transport business. The reason of upholding the acquittal, recorded by the Trial Court (though reversed by the High Court), was that all the cartridges recovered from the place of occurrence were found to have been fired from same pistol recovered from the accused A2. Besides, there were other major contradictions in the ocular testimony, on the basis of which it was not safe to rely the presence of rest of the accused persons on the spot. However, as regards the instant case, the factual position as testified in ocular and other evidence is quite different. It has been stated time and again by the Hon''ble Apex Court in a galaxy of judgments that the facts of each criminal case differ from another criminal case. There are no two criminal cases, which are absolutely identical. So, we find no substance in the submission that merely on the basis that there was hot rivalry between the two parties, the Court should always view the complicity of all the accused persons with a strong doubt, more so, when the ocular version of the evidence inspires confidence.

P.W. 4 and P.W. 5 have been named in the FIR as the eye-witnesses, but they were declared hostile, as they did not support the prosecution version. Here, we cannot be oblivious of the fact that these witnesses hail from the same village ''Nagla Salar'', which is also the village of the accused persons. So, after the lapse of as many as seven years after the incident, it is difficult to expect from these witnesses to tell the truth while living in such an intensely fraction-ridden village. Further, it is settled position of law that even the testimony of a hostile witness is admissible in the evidence so far as it supports the prosecution version. These witnesses have not denied their presence on the spot because it has been deposed by them that they were also coming after collecting the animal fodder from their agricultural fields. They had seen the occurrence from a distance and by the time they reached near the spot, the assailants had already escaped. Rajendra Singh was lying dead on the spot. Similar is the version of P.W. 5 and P.W. 6. So, they have not denied the occurrence, but have stated that they had not seen the assailants from there own eyes. Hon''ble Apex Court in a catena of judgments has held that evidence of hostile witness remains admissible and it is open to the Court to rely upon the dependable part of that evidence, which is found to be acceptable and duly corroborated by some other reliable evidence available on record. So, the testimony of P.W. 4 and P.W. 5 has to be viewed and reliance should be placed on the same so far as it relates to the fact that they had seen occurrence from a distance. In this regard, following of late judgments of the Hon''ble Supreme Court are noteworthy, Himanshu v. State (NCT of Delhi) 2011 (74) ACC 223 (SC), M. Sarvana @ K.D. Saravana v. State of Karnataka 2012 (79) ACC 8 (SC), Bhajju @ Karan Singh v. State of M.P. 2012 (77) ACC 182 (SC), and Govindaraju @ Govinda v. State by Sriramapuram Police Station and another 2012 (76) ACC 545 (SC). We also find it quite difficult to believe that sparing the real culprits, the accused persons shall be falsely implicated.

For the reasons recorded above, we are of the considered view that the culpability of the accused appellant in this macabre killing is proved beyond doubt and they have been rightly convicted and sentenced by the Trial Court. As such, we find no force in this appeal and the same is liable to be dismissed. Resultantly, we dismiss the appeal and uphold the sentence and conviction awarded to the accused appellants by the Trial Court vide the impugned judgment and order dated 19.8.2004. Appellants Ompal, Dharampal and Yogesh are on bail. Their bail bonds are cancelled. Sureties are discharged. Accused convicts shall be taken into custody forthwith to serve out the sentence as awarded to them by the Trial Court. Let a copy of this judgment and order, along with LCR, be sent to the Court below for compliance.