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2024 DIGILAW 336 (UTT)

Hoshiyar Singh v. State of Uttarakhand

2024-05-14

ALOK KUMAR VERMA, RITU BAHRI

body2024
JUDGMENT : RITU BAHRI, C.J. 1. The appellant has come up in appeal against the judgment dated 25.07.2014, passed by the Court of learned 1st Additional Sessions Judge, Dehradun in Sessions Trial No. 131 of 2012, whereby the appellant has been convicted for the offence punishable under Section 302 of the Indian Penal Code, 1860 for life, along with a fine of Rs. 5000/- and in case of non-payment of fine to face additional imprisonment for one year. 2. The case of the prosecution, in a nutshell, is that on 09.06.2012, the complainant Sunil Kumar made a complaint in Police Station Cantt, Dehradun that his uncle – Somati, S/o Naanu Singh, R/o Kandoli Upper, Bhadrakali, who was a cleaning worker in Petroleum University, after doing work, he would come home every day at around 05:00 P.M. On 09.06.2012, he did not come home till 07:00 P.M., so he and his uncle Sohanlal went on foot towards Bidoli to search him. On the way, they met Rajendra, R/o Baishakhwali. When the complainant asked him about his uncle, then he told that Somati is in Babulal’s garden, and he is having a fight with Hoshiyar Singh. Both of them are drunk. They reached the garden of Babulal at about quarter to 8’o clock in the night, and in the light of the torch, they were surprised to see that Hoshiyar Singh, the watchman of the garden, was hitting his uncle on the head with a stick. On seeing them, he ran away with the stick in the west direction. His uncle died in pain in front of them on the cot. Thereafter, they searched for Hoshiyar Singh, but could not find him after a lot of search. His uncle’s body was lying on the cot. 3. On the basis of the above, the complaint was registered, and after investigation charge-sheet was presented in the Court under Section 302 IPC, and charges were framed against the accused Hoshiyar Singh under Section 302 IPC. The following witnesses were examined by the prosecution to prove its case: PW-1 Sunil Kumar (complainant) PW-2 Sohanlal PW-3 Rajendra Singh PW-4 Constable 1299 Gabbar Singh PW-5 Dr. N.K. Mishra PW-6 Amar Singh PW-7 Sub-Inspector Kuldeep Pant PW-8 Inspector Avval Singh Rawat 4. In documentary evidence, on behalf of the prosecution, following evidences were filed and proved: Ex.Ka.-1 Written Report. The following witnesses were examined by the prosecution to prove its case: PW-1 Sunil Kumar (complainant) PW-2 Sohanlal PW-3 Rajendra Singh PW-4 Constable 1299 Gabbar Singh PW-5 Dr. N.K. Mishra PW-6 Amar Singh PW-7 Sub-Inspector Kuldeep Pant PW-8 Inspector Avval Singh Rawat 4. In documentary evidence, on behalf of the prosecution, following evidences were filed and proved: Ex.Ka.-1 Written Report. Ex.Ka.-2 & 3 Memo of blood-stained carpet, blanket, strings of the cot recovered from the spot. Ex.Ka.-4 Memo of the blood-stained soil and plain soil. Ex.Ka.-5 Memo of bloodstained clothes. Ex.Ka.-6 Bloodstained stick. Ex.Ka.-7 Chik FIR. Ex.Ka.-8 to 10 Registration of GD copy. Ex.Ka.-11 Postmortem report. Ex.Ka.-12 Panchnama. Ex.Ka.-13 to 17 Challan of dead-body and photo of dead body. Ex.Ka.-18 Site map of the spot. Ex.Ka.-19 & 20 GD. Ex.Ka.-21 Arrest memo. Ex.Ka.-22 Information memo. Ex.Ka.-23 Site map of the recovery site. Ex.Ka.-24 Report of chemical analysis of stick and clothes. Ex.Ka.-25 Charge-sheet. 5. The statements of the accused were recorded under Section 313 of the CrPC, in which he declared himself innocent, and stated that he had no idea how Somati had died. He further stated that the police had caught him from the garden itself, and it was he, who had called Pradhan and Babulal. The accused asked to give defense evidence, and he examined the following witnesses in his defense: DW-1 Chattar Singh DW-2 Raju Thapa DW-3 Bhagwan Singh Rana DW-4 Khem Singh 6. The Trial Court went through the entire evidence led. There are two eyes witnesses, one is PW-1 Sunil Kumar, and the other is PW-2 Sohanlal. They both had gone in search of the deceased-Somati, when he did not come back from the office on 09.06.2012. Their consistent evidence is that when they went in search of Somati, they met Rajendra on the way, and when they asked him about Somati, he told that Somati was in Babulal's garden and he was having a fight with Hoshiyar Singh. When they reached Babulal's garden at around quarter to 8’o clock, noise was coming from the garden, then Sunil turned the torch in that direction, and saw that the watchman of the garden i.e. Hoshiyar Singh was hitting the deceased Somati on the head with a stick, and as soon as he saw them, he took the stick and ran away in the west direction. When they came back, they saw that Somati was lying dead on the cot. Both these eye witnesses were consistent in their examination-in-chief. in that direction, and saw that the watchman of the garden i.e. Hoshiyar Singh was hitting the deceased Somati on the head with a stick, and as soon as he saw them, he took the stick and ran away in the west direction. When they came back, they saw that Somati was lying dead on the cot. Both these eye witnesses were consistent in their examination-in-chief. 7. PW-1 Sunil Kumar proved Ex.Ka.-1, which was the complaint given by the complainant to the police. When the police came on the site, Ex.Ka.-2 and Ex.Ka.-3 were prepared as recovery documents. The police had taken plain and blood stained soil and sealed it along with a seal in separate plastic container, and had done the writing proceedings, and the signature of Sunil was taken on the form available on record in the form of Ex.Ka.-4, and the recovery of goods was Ex.Ka.-1 to Ex.Ka.-11. In his cross-examination, PW-1 Sunil Kumar stated that he is a laborer and married. The deceased was his uncle, whose wife had died, and he had no children. His uncle used to work in Petroleum University. He rejected the suggestion that the report was written by him at the behest of the Inspector, and he was giving false testimony in Court. The Trial Court accepted the statement of PW-1, as well as PW-2. Both of them were eyewitness to the alleged murder. 8. PW-3 is Rajendra Singh, who had met both PW-1 and PW-2, when they were going in search of Somati. He stated that the accused Hoshiyar Singh used to work as a watchman in the garden of Babulal. Somati had brought a half bottle of liquor there at 6’o clock in the evening, which he, Somati and Hoshiyar Singh drank. Then Hoshiyar Singh and Somati started fighting over some issue, and he intervened and then went away from there. As per this witness, Sunil and Sohan Lal met him on the way, and when they asked him about Somati, he told them that Somati and the accused Hoshiyar Singh were in the mango orchard, and they were having a fight there. After this, Rajendra Singh went to his house. As per this witness, Sunil and Sohan Lal met him on the way, and when they asked him about Somati, he told them that Somati and the accused Hoshiyar Singh were in the mango orchard, and they were having a fight there. After this, Rajendra Singh went to his house. Next day, when he reached the garden, there the Police, Hoshiyar Singh and some other persons were standing, and the bloodstained clothes worn by Hoshiyar Singh at the time of the incident were taken out from the bushes in the mango orchard, and the stick, from which Somati had died, was recovered from the drain and had blood on it. He signed different papers prepared by the Police on the spot as a witness. He proved the Ex.Ka.-5 & Ex.Ka.-6 i.e. the recovery memo, blood stained cloth and recovery of stick. He further stated that the stick had been recovered at the pointing out of the accused. On the stick Material Exhibit 12, and on the bundle, Material Exhibit 13 was entered. 9. The clothes were also got recovered at the behest of the accused, and had worn it at the time of the fight, on which Material Exhibits 14 to 16 were marked. In cross-examination, the witness had stated that he is not related to the deceased Somati. He had no relation with Sohan Lal and Sunil. He also stated that he ended the fight between Somati and Hoshiyar Singh. He also stated that police had interrogated him. He denied the suggestion that he had killed Somati. He stated that he did not go to the spot with Sunil and Sohal Lal. He stated that there is no previous dispute between Somati and Hoshiyar Singh. He further admitted that he had consumed alcohol with the deceased and the accused in the garden that evening, and there was a fight between the accused and the deceased. 10. As per the evidence given by PW-1, PW-2 and PW-3, they are consistent in their evidence that there was no enmity between the appellant - Hoshiyar Singh, and the deceased – Somati. As per the evidence given by PW-3 Rajendra Singh, all three of them had consumed liquor together, and on some issue, there was a fight between Somati and Hoshiyar Singh. Hence, there was no motive for Hoshiyar Singh to kill Somati. As per the evidence given by PW-3 Rajendra Singh, all three of them had consumed liquor together, and on some issue, there was a fight between Somati and Hoshiyar Singh. Hence, there was no motive for Hoshiyar Singh to kill Somati. Since, there was no motive, it can be presumed that after consuming liquor in the company of PW-3 Rajendra Singh, a fight arose between Somati and Hoshiyar Singh, which led to causing injuries with a stick on the deceased Somati by the accused Hoshiyar Singh, due to which Somati died. 11. Further, the prosecution has examined PW-4 Constable 1299 Gabbar Singh, PW-7 Sub-Inspector Kuldeep Pant, and PW-8 Inspector Avval Singh Rawat, the Investigating Officer, who have proved the process of investigation, and registration of the F.I.R. Ex.Ka.-7, GD No. 32 – Ex.Ka.-8 & Ex.Ka.-9 and Ex.Ka.-10 - departure of the policemen from the police station and the arrival with the accused. Inquest report (Panchnama) – Ex.Ka.12 was prepared by PW-7 SubInspector Kuldeep Pant on the spot, which has his signatures, and the signatures of the witnesses of the Inquest. The body was sealed and sent for postmortem. PW-7 Sub-Inspector Kuldeep Pant proved Ex.Ka.-13 to Ex.Ka.-17 i.e. challan of the dead body, photo of the dead body, Report RI, Report CMO and Sample Seal. The accused was arrested on 10.06.2012 from near Nadan outpost, and arrest memos etc. were prepared. 12. On interrogation, the accused had stated that around 06.30 P.M. Somati had brought half bottle of liquor in the garden. There was an argument between Hoshiyar Singh and Somati in front of Rajendra. Thereafter, Rajendra left from there. Then Somati said that he will commit misdeeds with him. On this, the accused admitted that he had murdered Somati by beating him with a stick. The stick, which was used in the incident, was recovered from a ditch behind a hut, and the clothes were recovered, which had blood on them, from the nearby bushes. This witness PW-7 accepted his signatures on the memo of stick Ex.Ka-6. In cross-examination, this witness also stated that two independent witnesses were made, one of them was Rajendra, and he did not remember the name of the other witness. The deceased had injuries on his head, eyes, ears and chest. This witness PW-7 accepted his signatures on the memo of stick Ex.Ka-6. In cross-examination, this witness also stated that two independent witnesses were made, one of them was Rajendra, and he did not remember the name of the other witness. The deceased had injuries on his head, eyes, ears and chest. There is no material contradiction in the cross-examination of this witness, which would cast a doubt on the recovery allegedly made by the accused during his custody. 13. PW-8 Inspector Avval Singh Rawat, the Investigating Officer proved the carbon copy Ex.Ka.-19 of the interrogation paper No. 11.Ka/3 available on record. He further stated that at the behest of the accused, he left for the spot for recovery at 2 o'clock in the presence of witnesses - Hukum Singh and Rajendra, and the blood stained clothes and blood stained sticks used by the accused at the time of the incident were recovered. Ex.Ka.-5 and Ex.Ka.-6 in the record bear his signatures. He took the statement of the witnesses, and after inspecting the place of recovery, prepared the site plan Ex.Ka.-23, and sent the recovered goods to the laboratory for chemical testing, the details of which are available on the record as Ex.Ka-24. He sent the charge sheet - Ex.Ka.-25 to the Court. As per the Trial Court, the witness had supported the entire prosecution story, and proved beyond doubt the arrest of the accused and the recovery of the stick and blood stained clothes used in the murder by the accused. 14. The statement of all the above-said witnesses has been consistent even in their cross-examination, that the accused was present at the spot. There is no material contradiction, which could demolish the prosecution’s case, and the evidence given by all the above-said witnesses proves the presence of the accused at the spot. 15. As far as the recovery of the stick used by the accused is concerned, there was evidence that recovery was made at the pointing of the accused, when he was in police custody, and the Hon’ble Supreme Court in its judgments in Vikram Singh and Others v. State of Punjab, (2010) 3 SCC 56 and Murugan v. State of Tamil Nadu, AIR 2008 SC 2876 has consistently held that, if the recovery has been made at the instance of the accused, then it raises a presumption of guilt against the said accused. In the report Ex.Ka.-24 received from the Forensic Science Laboratory, it is also revealed that blood was found on the alleged recovered clothes etc. and on the stick, and this recovery was made on the spot by the information given at the behest of the accused-Hoshiyar Singh. The Trial Court has further examined that the eye-witnesses, even if they were related to the deceased, their evidence is not to be disregarded by calling them interested witnesses. 16. The evidence of PW-1 and PW-2 has been corroborated by medical evidence. Medical evidence is given by PW-5 Dr. N.K. Mishra, Senior Pathologist, Doon Hospital, Dehradun. As per this Doctor, following injuries were found on the body of the deceased before death: “1. Lacerated wound size 15cm x 12cm. Left side of head, front side of the head, Loss of left eye. 2. Lacerated wound 6 cm x 1.5cm. Right side of forehead and over right eyebrow. 3. Lacerated wound size 6cm x 3cm. Over left ear with loss of ear pinna. 4. Contusion with swelling size 17cm x 14cm over left side face, neck, front of neck. 5. Lacerated wound size 1cm x 1cm over chin. 6. Contusion size 11cm x 6cm over left anterior surface of chest over left nipple extended to medial side of sternum. 7. Lacerated wound size 3 x 2cm over left leg anterior surface 6 cm below the left knee joint. 8. Lacerated wound size 7cm x 1.5cm over anterior surface left leg 16 cm below the left knee joint. 9. Fracture of nasal bone, left jaw (mandable) bone. Maxillary bone and skull. Internal testing found as follows: 1. Fracture a left side a parital bone, temporal bone, frontal.” 17. All the injuries, as reflected above, have been caused by the stick, which was recovered, and the stick had blood of the deceased. 18. In the present case, apart from eye-witnesses PW-1 and PW-2, there was another independent witness Rajendra, who was in the company of Hoshiyar Singh and the deceased-Somati, and had consumed liquor. He was also working in the same garden, as a gardener with Hoshiyar Singh, and he was the witness, who had given information with regard to the fight between Hoshiyar Singh and Somati to the complainant PW-1 and PW-2, when they had gone out in search of Somati. He was also working in the same garden, as a gardener with Hoshiyar Singh, and he was the witness, who had given information with regard to the fight between Hoshiyar Singh and Somati to the complainant PW-1 and PW-2, when they had gone out in search of Somati. The evidence of this witness, coupled with the fact that the independent defense witnesses DW-1 to DW-4 have consistently stated that the accused Hoshiyar Singh was present in the garden on the date of the incident. Hence, the prosecution has led sufficient evidence to prove that it was Hoshiyar Singh, who was beating Somati with a stick after consuming alcohol. 19. However, another important thing to be examined in this case is that as per the evidence given by PW-3 Rajendra Singh, there was no enmity between Hoshiyar Singh and Somati, which could compel Hoshiyar Singh to commit the murder of Somati. It was only after consuming liquor, when all three of them were sitting, a fight started between Hoshiyar Singh and Somati. Since there was absence of enmity, the fight occurred suddenly, when they all were sitting and drinking liquor. Since Hoshiyar Singh was seen giving injuries to the deceased with a stick, and that stick was also got recovered after statement given by Hoshiyar Singh, the only question for consideration, is whether this is a case of murder with intention, or this is a case of giving injuries, without intention to murder. 20. In the facts of the present case, both Somati and Hoshiyar Singh are working. Hoshiyar Singh was working as a gardener in Babulal’s garden, and Somati was working in the Petroleum University. They both were friends, and known to each other, and as per the eye-witnesses PW-1 and PW-2, and defense witnesses DW-1 to DW-4, there was no enmity between the two families of Hoshiyar Singh and Somati. Hence, there was no major cause for Hoshiyar Singh to murder Somati after having drinks with him together, along with PW-3 Rajendra. 21. Reference can be made to a judgment of the Hon’ble Supreme Court in the case of Shahajan Ali and others v. State of Maharashtra and others, (2017) 13 SCC 481 . Hence, there was no major cause for Hoshiyar Singh to murder Somati after having drinks with him together, along with PW-3 Rajendra. 21. Reference can be made to a judgment of the Hon’ble Supreme Court in the case of Shahajan Ali and others v. State of Maharashtra and others, (2017) 13 SCC 481 . The Hon’ble Supreme Court, in this case, was examining a case, wherein altercation took place suddenly, which resulted into a fight, during which the accused attacked the deceased with knife, causing injuries on his neck, which resulted into his death. The accused and the deceased were in the same business of selling goggles, and there was a rivalry between them. On the date of the incident, the deceased was having a tea at a dhaba, and all the appellants reached there and asked him to step aside, as they wanted to speak to him, and, thereafter, the altercation led to a sudden fight. In this backdrop, the accused attacked the deceased with a knife. The conviction in the said case, under Section 302 IPC was converted to Section 304 Pt. II IPC, by observing that it was a sudden fight, and the accused had no intention to murder the deceased. The sentence was converted to Section 304 Pt II IPC, to the period already undergone. The undergone period was almost 7 years. 22. Reference can also be made to another judgment of the Hon’ble Supreme Court in the case of Kala Singh alias Gurnam Singh v. State of Punjab, (2021) 10 SCC 744 . In this case, as per the facts, on the fateful day, the accused, co-accused and the deceased had gone to the house of Hardev Singh Arora, and they took one bottle of liquor with them. Thereafter, they went to one bridge, and consumed liquor there, and there was a quarrel between appellant and the deceased, on the allegation that the deceased had stolen pigeons belonging to the appellant/ accused. Co-accused had a rod with him, and he gave a rod-blow on head of the deceased. He fell down, and as there was no response after half an hour, they shifted his body to minor canal. Co-accused had a rod with him, and he gave a rod-blow on head of the deceased. He fell down, and as there was no response after half an hour, they shifted his body to minor canal. The Hon’ble Supreme Court referred to the judgments in Uday Singh v. State of U.P. (2002) 7 SCC 79 and Shahajan Ali (supra) and held that the incident took place in the heat of passion, upon a sudden quarrel. In paragraph no. 10, it was observed as under: “10. It is clear from the evidence and other material placed on record that there was no intention to kill the deceased Shamber Singh. It is clear from the evidence on record that the scuffle had taken place on the spur of the moment and a sudden fight had taken place in the heat of passion upon a sudden quarrel. It was not a premeditated one and as there was no intention on the part of the appellant and co-accused either to cause death or cause such bodily injury as is likely to cause death, the High Court ought not to have convicted the appellant for the offence under Section 304 Part I IPC. In absence of any intention on the part of the appellant, we are of the view that it is a clear case where the conviction of the appellant is to be modified to one under Section 304 Part II IPC by maintaining the conviction for the offence under Section 201 IPC. The case law which is relied on by the learned counsel for the appellant also supports the case of the appellant for converting his conviction from the one under Section 304 Part I IPC to the one under Section 304 Part II IPC.” 23. In the aforesaid case, the appeal was allowed in part, and the conviction was modified from the one under Section 304 Part I IPC to Section 304 Part II/ 34 IPC, and he was sentenced for a period of seven years, and a fine of Rs.10,000/-. 24. As per PW-3 Rajendra, there was no enmity between Hoshiyar Singh and Somati, which could compel Hoshiyar Singh to commit the murder of Somati. Hence, it was only after consuming liquor, when all three of them were sitting, a fight started between Hoshiyar Singh and Somati. There was no intention for Hoshiyar Singh to murder Somati. 24. As per PW-3 Rajendra, there was no enmity between Hoshiyar Singh and Somati, which could compel Hoshiyar Singh to commit the murder of Somati. Hence, it was only after consuming liquor, when all three of them were sitting, a fight started between Hoshiyar Singh and Somati. There was no intention for Hoshiyar Singh to murder Somati. It was a sudden fight, which took place after all the three friends, i.e. Hoshiyar Singh, Somati and Rajendra consumed liquor. Applying the ratio of the judgments of the Hon’ble Supreme Court, as referred to above, the conviction of the appellant, under Section 302 IPC, cannot be sustained. 25. In view of the above, the appeal is allowed in part, and the conviction of the appellant is modified from the one under Section 302 IPC to the one under Section 304 Part II/ 34 IPC. 26. As per the custody certificate, dated 15.05.2024 filed by the counsel for the State, the appellant has undergone 09 years, 04 months and 19 days in custody, and he is not facing any other criminal trial. Keeping in view the above facts, the conviction of the appellant is being reduced to the period already undergone. 27. The present Criminal Appeal is partly allowed. 28. Pending applications, if any, also stand disposed of accordingly.