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Uttarakhand High Court · body

2013 DIGILAW 15 (UTT)

BEER SINGH v. STATE OF UTTARAKHAND

2013-01-04

BARIN GHOSH, U.C.DHYANI

body2013
JUDGMENT Per: U.C. Dhyani, J. One Jai Pal Singh (PW1) wrote a complaint to Station Officer, Police Station Devprayag, Tehri Garhwal, on 02.02.2005, regarding the death of his elder brother Bahatar Singh (the victim). According to PW1, there was a marriage of one Sabal Singh, s/o Bhup Singh, on 01.02.2005 in village Gorti Kanda. The marriage was attended by PW1, his brother Bahatar Singh and his another brother Vijay Pal Singh (PW4). At 07:30 p.m., the marriage procession proceeded from Gorti Kanda to Tundgi. PW1 and PW4 were along with the marriage procession. Their elder brother, Bahatar Singh, was left behind. When PW1 and PW4 reached Tundgi and their elder brother Bahatar Singh did not reach there, they got worried. They started making a search for Bahatar Singh, only to find, on 02.02.2005, that the dead body of Bahatar Singh was lying on Rampur-Shyampur motor road. There were many injuries inflicted upon his body. It was further stated in the complaint that appellant Beer Singh was in inimical terms with them. PW1 apprehended that appellant Beer Singh has killed Bahatar Singh to settle the score. 2. On the basis of the said complaint, lodged by PW1, a case was registered against the appellant for the offence punishable under Section 302 of the Indian Penal Code. The incident took place in the intervening night of 01/02.02.2005 and the report was lodged on 02.02.2005 at 11:30 a.m. The distance between the place of occurrence and the Police Station was about 8 ½ kms. and, hence, there appeared to be no delay in lodging the First Information Report. Investigation was carried out on the basis of such FIR. After completion of the investigation, a charge-sheet was filed against the appellant for the offence punishable under Section 302 of the Indian Penal Code. 3. When the case was committed to the court of Sessions, trial commenced. Charge for commission of offence punishable under Section 302 of the Indian Penal Code was framed against the appellant, who pleaded not guilty and claimed to be tried. As many as 09 prosecution witnesses were examined on behalf of the prosecution, viz., PW1 Jai Pal Singh, PW2 Vikram Singh, PW3 Hukkam Singh, PW4 Vijay Pal Singh, PW5 Dr. S.C. Uniyal, PW6 SI P.R. Prasad Bahuguna, PW7 Dr. As many as 09 prosecution witnesses were examined on behalf of the prosecution, viz., PW1 Jai Pal Singh, PW2 Vikram Singh, PW3 Hukkam Singh, PW4 Vijay Pal Singh, PW5 Dr. S.C. Uniyal, PW6 SI P.R. Prasad Bahuguna, PW7 Dr. Bindesh Kumar Shukl, PW8 Dalpati Sharma, PW9 SO Mahesh Joshi, and, thereafter, incriminating evidence was put to the appellant in statement under Section 313 of the Code of Criminal Procedure. Appellant denied his participation in the incident in question and said that he was falsely implicated in the case. No one was examined on behalf of the Defence. After hearing both the sides, the learned court below, by the judgment and order under appeal, convicted the appellant, namely, Beer Singh, for the offence punishable under Section 302 of the Indian Penal Code and sentenced him to undergo imprisonment for life, along with a fine of Rs. 2,000/-, and, in default of payment of fine, to undergo further rigorous imprisonment for six months. Aggrieved thereby, the present appeal was preferred. 4. The prosecution led the evidence through Jai Pal Singh (PW1), Vikram Singh (PW2), Hukkam Singh (PW3) and Vijay Pal Singh (PW4). Let us examine their evidence in detail. 5. PW1, in his examination-in-chief, proved the contents of his complaint (Ex. Ka. 1) and also repeated what was written by him in his complaint. PW1 also said that, when the dead body of Bahatar Singh was found, there were hairs in the fist of the deceased. The hairs belonged to appellant Beer Singh. PW1 stated that, when the marriage procession started from Gorti Kanda at 07:30 p.m., then, he along with his brother PW4, went ahead with the procession, but his brother Bahatar Singh (the victim) was left behind. Bahatar Singh was accompanied by appellant Beer Singh and PW3. It was further stated that since PW3 felt unwell and, therefore, Bahatar Singh and appellant Beer Singh took PW3 to the house of PW2. It was further stated that, when Bahatar Singh did not reach the place of marriage in the night, PW1 got worried and, in the morning, the dead body of Bahatar Singh was found on the road. The victim was killed with the use of stones. PW1 also stated that appellant Beer Singh was having inimical terms with Bahatar Singh. 6. PW2, who was one of the persons going in marriage procession, supported the prosecution story. The victim was killed with the use of stones. PW1 also stated that appellant Beer Singh was having inimical terms with Bahatar Singh. 6. PW2, who was one of the persons going in marriage procession, supported the prosecution story. He stated that PW3 was his relative, who suddenly started feeling unwell. PW2 stated that, on 01.02.2005, at about 09:30 p.m., Bahatar Singh and appellant Beer Singh came to him along with PW3. He stated that, thereafter, Bahatar Singh and appellant Beer Singh went back to rejoin the marriage procession. PW2 stated that, on 02.02.2005 at about 06:00 a.m., he got the information about the death of Bahatar Singh from PW1. 7. The evidence tendered by PW3 was the most important piece of evidence. In his examination-in-chief, he admitted the fact of his attending the said marriage procession on 0 1.02.2005. PW3 stated that, while accompanying the marriage procession, he suddenly felt pain in his stomach. PW3 further stated that he told about this illness to Bahatar Singh and appellant Beer Singh, who were also accompanying him in the said marriage procession and, thereafter, appellant Beer Singh and Bahatar Singh took him to the house of PW2. PW3 stated that, thereafter at about 08:30 p.m., appellant Beer Singh and Bahatar Singh left to rejoin the marriage procession. PW3 further stated that, in the next morning, when PW1 informed about the death of Bahatar Singh, they went to the place of incident and found the dead body of Bahatar Singh lying on the road. PW3 was subjected to a lengthy cross-examination, but nothing clinching could be brought so as to raise any doubt on the prosecution story. The evidence tendered by PW3 was acceptable. PW3 was the most natural, non-partisan witness, who gave evidence in such a way that nobody could raise any finger of suspicion on his unimpeachable testimony. 8. PW4 stated in his examination-in-chief that, on 01.02.2005, he was attending the said marriage procession along with his brothers, namely, Bahatar Singh and PW1. PW4 also stated that appellant Beer Singh was known to him, who was also accompanying the said marriage procession. 8. PW4 stated in his examination-in-chief that, on 01.02.2005, he was attending the said marriage procession along with his brothers, namely, Bahatar Singh and PW1. PW4 also stated that appellant Beer Singh was known to him, who was also accompanying the said marriage procession. PW4 further stated that the marriage procession started from Gorti Kanda at 07:30 p.m. and reached Tundgi village at 09:30 p.m. As per PW4, his brother Bahatar Singh did not reach the place of marriage, whereas appellant Beer Singh reached at 10:00 p.m. PW4 further stated that, in the morning of 02.02.2005, when a search was being made for Bahatar Singh, the dead body of Bahatar Singh was found on Rampur-Shyampur road. PW4 remained unscathed despite facing the agony of cross-examination. 9. Thus, it was clear from the evidence of PW1, PW2, PW3 and PW4, as narrated above, that, when indisposed PW3 was left at the house of PW2, appellant Beer Singh and Bahatar Singh went back to rejoin the marriage procession. Thereafter, only appellant Beer Singh and Bahatar Singh remained together in the company of each other. Therefore, it was established beyond any shadow of doubt that Bahatar Singh was with appellant Beer Singh, when he was last seen. 10. The evidence tendered by PW1, PW2, PW3 and PW4, was further corroborated by the evidence of Dr. S.D. Uniyal (PW5), who conducted the post mortem on the dead body of the deceased on 03.02.2005 at 10:15 a.m. He found one lacerated injury present over left side of scalp, 3 cm. from the left ear, measuring 8 cm x 2 cm brain deep and also dry blood clots present over and around margins of the injury. He also found one lacerated injury present over right side of scalp, 3 cm. from the ear, measuring 10 cm x 2 cm brain deep and also dry blood clots present over and around margins of the injury. The cause of death was opined to be shock and hemorrhage as a result of ante mortem head injuries. Appellant was also medically examined. Abrasions were found on his eye-ball & right hand, which indicates that a scuffle took place between the appellant and the victim, and in the process victim caught hold of appellant’s head and thereby the hairs were found in victim’s fist. 11. When the inquest (Ext. Appellant was also medically examined. Abrasions were found on his eye-ball & right hand, which indicates that a scuffle took place between the appellant and the victim, and in the process victim caught hold of appellant’s head and thereby the hairs were found in victim’s fist. 11. When the inquest (Ext. Ka-3) of the deceased was conducted on 02.02.2005, a few hairs were found in the fist of the right hand of deceased, which hairs were taken by the police in their possession, a memo (Ext. Ka-11) whereof was prepared. Station Officer of PS Dev Prayag wrote an application (Ext. Ka-20) addressed to C.J.M., Tehri Garhwal for permission to take specimen of the hairs of the accused-appellant. Such permission was granted on 03.02.2005. Consequent upon the directions of C.J.M., the specimen hairs from the head of the accused-appellant were taken, memo (Ext. Ka- 12) whereof was prepared. It was mentioned in Ext. Ka- 12 that the accused gave the sample of his hairs voluntarily. While submitting the charge-sheet against the accused-appellant, I.O./S.O. mentioned that the hairs were sent to the Forensic Science Laboratory, Agra. FSL, in it’s report dated 03.10.2005, clearly held out that the hairs, which were found in the fist of the deceased and the sample of hairs taken from the head of accused, were the same. The report dated 03.10.2005, which was given by the Assistant Director of FSL, Agra, was admissible in evidence under Section 293 Cr.P.C., which says that any document purporting to be a report under the hand of Government scientific expert to whom Section 293 Cr.P.C. applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under Cr.P.C., may be used as evidence in any inquiry, trial or other proceeding under the Code. The Laboratory was categorical in its’ finding that the hairs, which were found from the fist of the victim and the specimen hairs of the accused were the human hairs and some of the hairs taken from the head of the accused resembled with the hairs which were found in the fist of the deceased. Accused, in his statement under Section 313 Cr.P.C., did not satisfactorily account for the above and therefore, adverse inference will be drawn against him. Accused, in his statement under Section 313 Cr.P.C., did not satisfactorily account for the above and therefore, adverse inference will be drawn against him. Thus, in view of the last seen evidence, report of FSL and other cogent evidence, there remains no doubt that the appellant and the appellant alone killed Bahatar Singh (deceased) and accordingly, the appellant was rightly held guilty of commission of offence punishable under Section 302 IPC by learned court below. 12. Taking into account the entire evidence, as was brought on record by the prosecution, there is no hesitation in coming to the conclusion that appellant Beer Singh killed Bahatar Singh with the use of stones. The learned court below has dealt with each and every aspect of the matter in extenso and has right held that the prosecution was able to prove the case against the appellant herein beyond any reasonable doubt. We, accordingly, do not find any scope of interference with the findings recorded by the court below. 13. Consequentially, the appeal is liable to be dismissed and the same is dismissed. The judgment and order passed by the learned court below is hereby affirmed. The conviction and sentence recorded against the appellant by the court below is also upheld. Appellant is on bail. His bail is cancelled. He is directed to surrender forthwith before the court concerned to serve out the sentence as awarded by the learned court below and affirmed by this Court. 14. Let a copy of this judgment, along with the lower court records, be sent to the court concerned for ensuring compliance of this order.