Rajendra Singh and Pooran Singh vs State of Uttar Pradesh (now State of Uttarakhand)

Prafulla C. Pant, J.—Both these two appeals are directed against judgment and order dated 23.01.1999, passed by Additional Sessions Judge/ Special Judge, Nainital, in Sessions Trial No. 570 of 1996, whereby appellants Rajendra Singh and Pooran Singh have been convicted u/s 302, and 201 of Indian Penal Code, 1860, and each one of the convicts has been sentenced to imprisonment for life (under Section 302 IPC), and rigorous imprisonment for a period of five years under (section 201 IPC).

Heard learned Counsel for the parties and perused lower court record.

Prosecution story in brief is that on 16.07.1996, P.W.1 Niranjan Singh (complainant) alongwith his brother Karnail Singh (deceased) proceeded from their house towards Ghooria, to take medicines for children. When Karnail Singh reached near plot No. 13 within the limits of Village Haripura, Harsan, accused/appellants Rajendra Singh and Pooran Singh came there. The accused/appellants Pooran Singh caught Karnail Singh, and Rajendra Singh assaulted him with ''PATAL'' (heavy sharp edged weapon) on his back. Karnail Singh suffered injury and fell down. On this the two accused got hold of the legs of the injured and dragged him 100 yards towards jungle, where Rajendra Singh chopped off head of the deceased and ran away with Pooran Singh. The incident took place at about 3:30 P.M. It was witnessed not only by complainant Niranjan Singh (P.W.1) but also by Balwant Singh (P.W.2), and Jagir Singh (P.W.3) who were grazing their cattles in the near by jungle. Complainant Niranjan Singh lodged first information report (for short FIR) (Ex. A1) at police station Bazpur at 5:05 P.M., (i.e.,within two hours of the incident) which was registered as crime No. 371 of 1996, relating to offences punishable u/s 302, and 201 IPC. P.W.6 Inspector Brijendra Singh, investigated the crime. He took headless dead body of the deceased in his possession and prepared inquest report (Ex.A7) on the very day about 6:00 P.M. He further filled police form No. 13 (Ex. A9), prepared sketch of the dead body (Ex. A10), sample seal (Ex. A11) and letter for Superintendent Government Hospital, Kashipur (Ex. A8) requesting him for post-mortem examination on the headless dead body of the deceased on 17.07.1996 at 3:30 P.M., and prepared autopsy report (Ex. A3). He recorded seven incised wounds on the headless dead body of Karnail Singh and opined that deceased had died due to shock and hemorrhage as a result of ante-mortem injuries. Meanwhile, on 17.07.1996, after arrest of accused/appellant Rajendra Singh, on his pointing out, head of Karnail Singh recovered at 6:00 a.m., and separate inquest report (Ex. A19) and other necessary papers were prepared by the police. The head was also sent in a sealed condition for post-mortem examination. The same medical officer (P.W.5) Dr. J.K. Goyal, conducted post-mortem examination on the chopped off head of Karnail Singh at 4:30 P.M., on 17.07.1996, and recorded incised wound through and through 45 cm. in circumference on the neck of the deceased and opined that shock and hemorrhage as a result of ante-mortem injuries was the cause of death. He prepared autopsy report (Ex. A4) after post-mortem examination of the head. On 18.07.1996, accused/appellant Pooran Singh was arrested and recovery of sharp edged weapon was made on his pointing out by the Investigating Officer, with regard to which recovery memorandum (Ex. A2) was prepared. After interrogating witnesses and preparing site plans (Ex. A12 and Ex. A16) charge sheet (Ex. A23) was filed against both the accused Rajendra Singh and Pooran Singh for their trial in respect of offences punishable u/s 302/201 IPC.

The Judicial Magistrate, Kashipur, on receipt of the charge sheet, after giving necessary copies to the accused, as required u/s 207 Cr.P.C., appears to have committed the case to the court of session for trial. (Earlier Tehsil Bazpur was part of District Nainital). Additional Sessions Judge, Nainital, after hearing the parties, on 21.01.1997, framed charge of offences punishable u/s 302, and 201 IPC against both the accused namely Rajendra Singh and Pooran Singh, who pleaded not guilty and claimed to be tried. On this, prosecution got examine P.W.1 Niranjan Singh (complainant), P.W.2 Balwant Singh (Eye witness), P.W.3 Jagir Singh (another eye witness), P.W.4 Arjun Singh, P.W.5 Dr. J.K. Goyal, who conducted post-mortem examination, and P.W.6 Inspector Brijendra Singh, who investigated the crime. Oral and documentary evidence was put to the accused u/s 313 Cr.P.C., in reply to which they alleged same to be false and pleaded they have been falsely implicated. However, no evidence in defence was adduced. The trial court, after hearing the parties, found both the accused guilty of charge of offences punishable u/s 302 and 201 IPC. Thereafter, the accused were heard, and each one of the convicts was sentenced to imprisonment for life u/s 302, and rigorous imprisonment for a period of five years u/s 201 IPC. Aggrieved by said judgment and order dated 23.01.1999, passed by Special Judge/Additional Sessions Judge, Nainital in Sessions Trial No. 570 of 1996, these two appeals were filed separately by the convicts before Allahabad High Court from where the same was received u/s 35 of U.P., Reorganization Act, 2000 (Central Act, 29 of 2000) for its disposal.

Before further discussion, we think it just and proper to mention the ante-mortem injuries found by P.W.5 Dr. J.K. Goyal, on the dead body (headless) and the head said to have been recovered on pointing out accused Rajendra Singh. First of all, the injuries mentioned in autopsy report (Ex. A3) said to have been found on the headless body of the Karnail Singh are being reproduced below:

(i) Incised wound through and through x 45cm in circumference in the middle of the neck of the level between 4th and 5th cirvical vertebra. Hem. Absent all the underlying structures were cut including both side carotid arteries.

(ii) Incised wound 2cm x 1cm x multiple deep on right side chest upper part.

(iii) Incised wound 3cm x 0.5cm x muscle deep on front of right side chest.

(iv) Incised wound 2.5cm x 0.5cm x muscle deep on right side abdomen lower part.

(v) Incised wound 2cm x 0.5cm x muscle deep on front of abdomen 6cm below umblicus.

(vi) Incised wound 5cm x 1cm x muscle deep on back lower part.

(vii) Incised wound 3cm x 1cm x muscle deep on front of left forearm middle.

The medical officer, reported in the autopsy report (Ex. A3) that the deceased had died due to shock and hemorrhage as a result of ante-mortem injuries. P.W.5 Dr. J.K. Goyal, further conducted autopsy on the head, said to have been recovered on 17.07.1996, at 6:00 a.m. In the autopsy report (Ex. A4) following ante-mortem injury was found by the medical officer which corresponds to the injury No. 1 mentioned on the beheaded body:

Incised wound through and through x 45cm in circumference present in the neck at the level of between 4th and 5th cirvical vertebra all underlying tissues are cut including carotid, arteries.

In this report (Ex. A4) also the medical officer opined that the deceased died due to shock and hemorrhage as a result of ante-mortem injuries. The inquest report (Ex. A15) relating to recovered head, police form No. 13 (Ex. A20), sketch of dead body (head) Ex. A21, sample seal (Ex. A22) were also proved by P.W.6 Inspector Brijendra Singh. The medical evidence read with statement of the P.W.5 Dr. J.K. Goyal, proves on the record that Karnail Singh had died a homicidal death. Now we have to examine whether accused/appellants Rajendra Singh and Pooran Singh have committed murder of Karnail Singh on 16.07.1996, as suggested by prosecution or not.

P.W.1 complainant Niranjan Singh has stated that on 16.07.1996, at about 3:15 P.M., he alongwith his brother Karnail Singh proceeded to take medicines for their children. According to the witness when they reached near plot No. 13, Karnail Singh was some fifty steps ahead of him as he (P.W.1) was suffering with dysentery. The witness further states that near plot No. 13, accused Rajendra Singh gave a blow with PATAL (heavy sharp edged weapon) on the back of Karnail Singh. He further states that his brother (Karnail Singh) fell down after getting unconscious. Accused Rajendra Singh with the help of Pooran Singh, dragged injured to some hundred (100) yards towards jungle, where they chopped off head of Karnail Singh and ran away with the head. P.W.1 Niranjan Singh further states that the incident was witnessed by Balwant Singh (P.W.2), and Jagir Singh (P.W.3). He has further deposed that the two accused had enmity with him (complainant) and his brother.

P.W.2 Balwant Singh has stated that on 16.06.1996, at about 3:30 P.M., he was grazing his cattle and saw Karnail Singh being attacked by Rajendra Singh with PATAL. The witness has further stated that two accused Rajendra Singh and Pooran Singh dragged Karnail Singh hundred yards, and chopped off the head of the deceased.

Similar statement is given by P.W.3 Jagir Singh corroborating the testimony of P.W.1 Niranjan Singh and P.W.2 Balwant Singh.

Apart from the above mentioned medical evidence and oral testimony, P.W.6 Inspector Brijendra Singh, Investigating Officer has proved that head of Karnail Singh was recovered, on 17.07.1996, at about 6:00 a.m. on pointing out accused Rajendra Singh. Said document is Ex. A 24 paper No. 49d@28 (3d@12) in the lower court''s record. The recovery memo is signed by the police personnel, and witnesses, and thumb impression of accused Rajendra Singh is also obtained in it.

In view of the above discussion, we are of the view that the prosecution has successfully proved charge of offences punishable u/s 302/34, 201 IPC, as against both the accused namely Rajendra Singh and Pooran Singh.

On behalf of the appellants it is argued that the presence of the witnesses P.W.2 Balwant Singh and P.W.3 Jagir Singh at the place of incident is not natural as they belong to the different village. We have scrutinized the statements of the said two eye witnesses and found that they do not belong to any far of villages, rather it is stated by P.W.2 Balwant Singh that his house is only 1km., away from the spot, and he was grazing the cattle there. Similarly P.W. 3 Jagir Singh has also stated that he was grazing his cattle at the time when the incident had taken place. It is well known fact that to graze the cattles villagers do go away from their houses, as such we do not find sufficient reason to discard the testimony of the two witnesses. Merely for the reason they happened to be relations of the complainant is also not sufficient ground to disbelieve them, particularly when their evidence is supported by medical evidence, and the recoveries made by the Investigating Officer.

It is also contended on behalf of the appellants that P.W.5 Dr. J.K. Goyal did not find abrasions on the dead body of the deceased, as such prosecution case that the deceased was dragged to jungle, and his head was chopped off cannot be believed. We have examined the statement of the witnesses of fact, and found that the deceased was dragged off on a grassy field, as such it is quite possible that no abrasion was found on the person of the deceased of dragging him to jungle. It is nobody''s case that the deceased was naked or without clothes.

Shri A.S. Gill, learned Counsel for the appellants pointed out that ''PATAL'' is one side edged weapon while the weapon produced in the court was a double edged weapon. To appreciate said fact correctly, we are also went through the recovery memo (Ex. A2) prepared on 18.07.1996, by the Investigating Officer, which is not only signed by the witness but also by Pooran Singh. This document shows that the weapon by which the deceased was assaulted by Rajendra Sing was a double edged PATAL. Once that fact is clear, the appellants are not entitled to take benefit on that count.

It is also pointed out that, according to P.W.5 Dr. J.K. Goyal, stomach of deceased was empty and he might had taken food 6-7 hours before the death. In this connection, our attention is also drawn to the fact that complainant P.W.1 Niranjan Singh has stated that he and his brother had proceeded after having meals at home. Where the oral testimony is clear and unambiguous as to the commission of crime narrated by the eye witnesses, merely for the reason whether the deceased had taken meals just before or 6-7 hours before it cannot be said that it shakes the prosecution story. The case of State of Uttar Pradesh v. Ashok Kumar and Anr. 1979 SCC (criminal) 606, referred on behalf of the appellants is not applicable to this case as the facts of present case are different, and the Apex Court found the prosecution story doubtful in the above mentioned case mainly on the ground that in the moon lit night, due to the distance between the place of incident and where the witnesses were standing, it was not possible to view the incident. In the present case it is a day-light incident in which eye witnesses have narrated the manner in which crime was committed therefore on the ground of above mentioned medical discrepancy, there appears no doubt in the prosecution story.

Lastly, it is submitted on behalf of the appellants that recovery of weapon on joint pointing out of the accused cannot be relied with. In this connection, our attention is drawn to the case of Mohd. Abdul Hafeez v. State of Andhra Pradesh 1983 SCC (criminal) 139. We have gone through said case law. The said case is of no help to the appellants as in the present case no joint recovery has been shown. Head of the deceased is said to have been recovered on pointing out of appellant Rajendra Singh, while the weapon is said to have been recovered on pointing out of appellant Pooran Singh as is evident from the recovery memos (Ex. A2 and Ex. A24).

For the reasons as discussed above, this Court find no force in these appeals. The appeals are dismissed. The appellants are on bail. Their bail is cancelled. Lower court record be sent back to make the appellants serve out remaining part of their sentence, awarded by the trial court.