Prafulla C. Pant, J.@mdashThis appeal, preferred u/s 374 of Code of Criminal Procedure, 1973, (for short Cr.P.C), is directed against the judgment and order dated 18.03.1999, passed by v. Additional Sessions Judge, Nanital, in Sessions Trial No. 154 of 1992, whereby Appellants Charan Singh and Kashmir Singh have been convicted u/s 302 read with Section 34 Indian Penal Code, 1860, (for short I.P.C.), and each one of them has been sentenced to imprisonment for life.
2. Heard learned Counsel for the parties and perused the lower court record.
3. Prosecution story, in brief, is that on 06.1.1992, at about 5 pm, complainant Banjara Singh (since deceased) along with his son Mangat Singh (deceased in the incident) and PW3 Jogendra Singh were coming back from Nanak Matta market to their home. When they reached near village Hariya, accused/Appellant Charan Singh accompanied with his son Makkhan Singh (since deceased) and accused/Appellant Kashmir Singh came out from a sugarcane field. Accused/Appellants Charan Singh and Kashmir Singh were armed with country made pistols and third accused/Appellant Makkhan Singh was armed with a sword. Prosecution case is that Makkhan Singh exhorted the two accused/Appellants to kill Mangat Singh, on which accused/Appellants Charan Singh and Kashmir Singh fired shots from the country made pistols at Mangat Singh. Mangat Singh suffered fire arm injury and died on the spot. Thereafter, the accused/Appellants and Makkhan Singh dragged dead body of Mangat Singh towards south of the road near a drain and left it there. When alarm was raised by Banjara Singh and Jogender Singh ( PW3), witnesses Boodh Singh (PW1) and Khajan Singh also reached at the spot. The First Information Report ( Ex A2) was lodged by Banjara Singh (since deceased) at 11.pm, at police station Nanak Matta, which was situated at a distance of 9 km from the place of incident. As to the motive of commission of crime it is alleged by the prosecution that Mangat Singh (deceased in the incident) had an affair with daughter of Charan Singh due to which he (Mangat Singh) was killed by the accused/Appellants.
4. On the basis of First Information Report (ExA-2) police registered crime No. 03 of 1992, relating to offence punishable u/s 302 I.P.C., against accused/Appellants Charan Singh, Kashmir Singh and Makkhan Singh (since deceased). After check report (Ex A-5) was prepared by the police at the police station, the police party rushed to the spot. The investigation was taken up by PW4 Sub Inspector Chandra Pal Singh. The police after reaching at the spot, took dead body of Mangat Singh in their possession, in the morning of 07.01.1992, and prepared inquest report (Ex A-7). PW5 Sub Inspector S.R. Chaudhary has stated that after preparing inquest report (Ex A-7), letter to Chief Medical Officer ( Ex A8), sample seal ( Ex A9), sketch of the dead body (Ex -A11), Police Form No. 33 ( Ex A-12) and Police Form No. 13 (Ex A-13) were prepared. The dead body of Mangat Singh was sent for post mortem examination. PW2 Dr. N.S. Kanyal conducted post mortem examination on 07.01.1992, at about 4.30 pm, and prepared autopsy report ( Ex A-1). He recorded one gun shot wound on the left side of the chest of the deceased and opined that the deceased had died of shock and hemorrhage, as a result of ante mortem injury. PW4 Sub Inspector Chandra Pal Singh and thereafter PW5 Sub Inspector S.R. Chaudhary who investigated the crime interrogated the witnesses and prepared site plan ( Ex A-14). On completion of investigation, PW5 Sub Inspector S.R. Chaudhary submitted charge sheet (Ex A-16) against all the three accused Charan Singh, Kashmir Singh and Makkhan Singh for their trial in respect of offence punishable u/s 302 I.P.C. Accused Makkhan Singh died during trial and case stood abated, as against him.
5. The Magistrate, on receipt of the charge sheet, after giving necessary copies to the accused/Appellants, committed the case to the court of Sessions for trial. On 13.7.1995, II Ird Additional Sessions Judge, Nainital, after hearing the parties, framed charge of offence punishable u/s 302 read with Section 34 I.P.C., against the accused/Appellants Charan Singh and Kashmir Singh who pleaded not guilty, and claimed to be tried. (Earlier Police Station Nanak Matta was part of District Nainital, now part of District Udham Singh Nagar). To prove their case prosecution got examined PW1 Bhoodh Singh (declared hostile), PW2 Dr, N.S. Kanyal (who conducted the post mortem examination), PW3 Jogendra Singh (eye witness), PW4 Sub Inspector Chandra Pal Singh and PW5 Sub Inspector S.R. Chaudhary (who completed the investigation). The oral and documentary evidence was put to the accused u/s 313 Code of Criminal Procedure, in reply to which they alleged evidence adduced against them by the prosecution was false. However, no evidence in defence was adduced. It is admitted in their replies u/s 313 Code of Criminal Procedure, by the accused that complainant Banjara Singh has died. It is also admitted by them that accused/Appellants Charan Singh and Kashmir Singh are related to each other as father in law and son in law. The trial court, after hearing the parties, found that the prosecution has sufficiently proved charge of offence punishable u/s 302 read with Section 34 I.P.C., against the two accused/Appellants namely Charan Singh and Kashmir Singh. After hearing on sentence, the trial court sentenced each one of them to imprisonment for life. Aggrieved by said judgment and order dated 18.03.1999, passed by Vth Additional Sessions Judge, Nainital, in Sessions Trial No. 154 of 1992, this appeal was filed before Allahabad High Court by the convicts on 01.04.1999, where it was admitted on 02.04.1999. The appeal is received by this Court u/s 35 of U.P. Reorganization Act, 2000 (Central Act No. 29 of 2000), for its disposal.
6. Before further discussion, we think it just and proper to mention here ante mortem injury recorded by PW2 Dr. N.S. Kanyal who conducted post mortem examination on dead body of Mangat Singh on 07.01.1992. The ante mortem injury is being reproduced below from the autopsy report (Ex A-1):
One gun shot wound of entry 2cm x 2cm x chest cavity deep on the left side of chest, adjacent to body of sternum the fifth intercostel space 4 cm from the left side of nipple medialy. This wound of entry surrounded by multiple gun shot of entry . 2cm x .2cm x cavity deep and muscle deep in an area of 19cm x 30cm extending from upper side of the sternal notch up to the lower intercostel space both side of chest longitudinally while exposing transversally from left nipple to right upper arm. Margins of all gun shot wound irregular inverted, no sign of blackening, scorching and tattooing around the wound. On further exposing the wound body of the sternum at middle 1/3 right and left.
7. The Medical Officer had opined in the autopsy report that deceased had died of shock and hemorrhage as a result of ante mortem injury. PW2 Dr. N.S. Kanyal has stated that deceased could have died on 06.01.1992, at 5 pm. He has further stated that after post mortem examination he gave back the dead body in sealed condition to the concerned constable. The Medical Officer has further stated that on internal examination he found 8 pellets in the lungs and 2 pellets in the thoracic cavity. From the medical evidence as discussed above it is established on the record that Mangat Singh died homicidal death on 06.1.1992, at about 5pm. Now, we have to examine whether the prosecution has successfully proved the charge that accused/Appellants Charan Singh and Kashmir Singh with common intention, committed murder of Mangat Singh on 06.01.1992, at 5pm, as suggested by the prosecution, or not.
8. Pw3 Jogendra Singh is the sole eye witness of the incident who has supported the prosecution story. He (PW3) has stated that complainant Banjara Singh (eye witness) has died. He has further stated that Mangat Singh (deceased) had love affair with daughter of accused Charan Singh. PW3 Jogendra Singh further stated that on 06.01.1992, he along with his brother Banjara Singh (since deceased) and nephew Mangat Singh (deceased in the incident) were coming back from Nanak Matta market to their home. In village Hariya, at 5 pm, accused Charan Singh and accused Kashmir Singh along with Makkhan Singh came out from the field of one Kakka Singh. It is further stated by the witness that Kashmir Singh and Charan Singh were armed with country made pistols, and Makkhan Singh (since deceased during trial) was armed with a sword. He further stated that Makkhan Singh exhorted the other two accused to kill Mangat Singh on which Kashmir Singh and Charan Singh fired shots from their country made pistols. PW3 (Jogendra Singh) further stated that after receiving the fire arm injury Mangat Singh fell down, and died on the spot. He further narrated that the three accused dragged dead body of Mangat Singh towards road side drain. The witness further stated the Banjara Singh raised alarm on which accused ran away leaving the dead body of Mangat Singh. PW3 Jogendra Singh further stated that on raising alarm Boodh Singh (PW1) and one Khajan Singh came there. The witness further states that after the incident he went to his home and informed about the incident to the other family members. He further states that he and Banjara Singh took one Dharam Singh with them through whom they got scribed First Information Report ( Ex A-2) which was given at the police station Nanak Matta.
9. PW1 Boodh Singh has stated that he did not see the occurrence, and was declared hostile. But merely that fact does not shake the truthfulness of the prosecution story for the reasons that PW3 Jogendra Singh himself has stated that on raising alarm Boodh Singh came at the place of incident. It is natural that the alarm must have been raised after the fires were shot, since it was a matter of seconds as such it is quite possible that by the time Boodh Singh (PW1) reached at the spot that the incident had already taken place. We have already mentioned above that Jogendra Singh (PW3) was accompanied with Mangat Singh and Banjara Singh. Mangat Singh was killed in the incident and Banjara Singh has also died before he could be examined by the court. In the circumstance, we are left with the testimony of only one eye witness i.e. PW3 Jogendra Singh. The conviction could be maintained even on the testimony of single eye witness provided the same is natural and trustworthy. The presence of Jogendra Singh at the spot does not appear to be doubtful. He was subjected to lengthy cross examination and nothing has come out which shakes his testimony supporting the prosecution story.
10. Smt Pushpa Joshi, learned Counsel for the Appellants pointed out that in the First Information Report the complainant has mentioned that two shots were fired which hit the deceased but the medical evidence shows that there is only one gun shot injury found on the person of the deceased. We have carefully examined the evidence on record on this point. Banjara Singh who dictated the First Information Report (Ex A-2) had died before his examination by the court. PW3 Jogendra Singh has explained that two shots were fired but he can not say whether only one hit the deceased or the both. Undoubtedly, from the medical evidence it is clear that it was only one shot which caused injury on the vital part (chest) of the deceased. PW3 Jogendra Singh no where says that both fires had actually hit the deceased. In our opinion testimony of PW3 Jogendra Singh can not be said to the inconsistent to the medical evidence on record.
11. Another argument advanced on behalf of the Appellants is that PW3 Jogendra Singh is uncle of the deceased, and he is interested witness, as such his testimony should not be believed without caution . We do agree with the principle of law that the evidence of interested witnesses should be examined more cautiously. But even after examining it cautiously we do not find that his testimony is doubtful. Rather being relative it was natural for him to be, with his brother and nephew while coming back from Nanak Matta to their home. The witness (PW3) has explained how he had gone to take tea leaves etc. from the market. He has further stated that those items were in his hand on his way back to home. First Information Report (Ex A-2) which was lodged by Banjara Singh (since deceased) also discloses that he was coming back from Nanak Matta market to his home with Jogendra Singh (PW3) and Mangat Singh (deceased).
12. For the reasons as discussed above, and after going through the entire evidence on record, we concur with the view taken by the trial court that prosecution has successfully proved charge of offence punishable u/s 302 read with Section 34 I.P.C., against both the accused/Appellants namely Charan Singh and Kashmir Singh.
13. Therefore, the appeal is liable to be dismissed. The same is dismissed. The conviction and sentence recorded by the trial court against the accused/Appellants Charan Singh and Kashmir Singh is affirmed. They are on bail. Their bail is cancelled. The trial court record be sent back so that the convicts Charan Singh and Kashmir Singh are made to serve out the sentence awarded against them, by the trial court.
