BALKAR SINGH Vs. STATE OF UTTARAKHAND

JUDGEMENT

(1.) IN this appeal challenge is to the judgment of a Division Bench of the Uttarakhand High Court upholding the conviction of the appellant as recorded by learned First Additional Sessions Judge, Nainital under Section 302 of INdian Penal Code, 1860 (in short the 'IPC'). The allegation was that accused committed murder of Ajeet Singh (hereinafter referred to as 'D-1') and Bajan Singh (hereafter referred to as 'D-2') and attempted to commit murder of Roop Singh for which he was convicted under Section 307 IPC and sentenced to 10 years RI.

(2.) PROSECUTION version in a nutshell is as follows: On 01.01.1983, at about 5:00 P.M., D-1 along with Roop Singh (P.W. 2) (injured) and Harbhajan Singh (P.W.1) informant, were going in a tractor to take flour from wheat flour mill of one Ram Prasad in village Paigakhas, situated within the limits of P.S. Kashipur (earlier part of District Nainital. At about 5:15 p.m., when they reached and got down in village Paigakhas, accused/appellant Balkar Singh met them and asked D-1 to have some wine with him, as it was a chilly day. On this, D-1 curtly replied that he would not have wine, bought with the money of the accused/appellant. There was old enmity between Balkar Singh (accused/appellant) and D-1 as earlier on a report lodged against accused/appellant Balkar Singh by the family members of D-1, he had been convicted but later on, acquitted by the appellate court. When Balkar Singh reiterated his request to have drinks with him and not to develop further the enmity between them, D-1 again firmly told that he would not have liquor with Balkar Singh and he may do whatever he likes. This made Balkar Singh feel insulted and he threatened D-1 that he will have to face the consequence of this refusal. Then Balkar Singh went to his house to bring his gun and in the meantime D-1 after taking flour from the wheat flour mill, proceeded for his further journey. When D-1 and others, in their tractor, reached near temple of goddess in village Paigakhas, accused Balkar Singh armed with a gun, fired a shot at D-1. It was around 5:30 p.m. D-1 on seeing Balkar Singh, firing at him, drove the tractor a bit faster. Balkar Singh, kept on firing shots, one after another and injured D-1, Bhajan Singh and Roop Singh. D-2 along with Roop Singh (P.W. 2) and Harbhajan Singh (P.W.1), in an attempt to save their lives, jumped from the tractor and took shelter behind rubbish heap by the side of pathway in the village. D-1 died on the spot in the tractor. Meanwhile, villagers started assembling near the scene of occurrence and accused-appellant Balkar Singh, by then left the place. Injured Roop Singh and D-2 were taken to Civil Hospital. But D-2 succumbed to the injuries in the hospital. Harbhajan Singh (PW-1) lodged oral First Information Report at police station, Kashipur, at 7:20 p.m. on the very day i.e. 01.01.1983, which was registered as crime No. 2 of 1983 under Section 302/307 I.P.C. against accused Balkar Singh. On the basis of the oral report, chick report (Ext. A-1) was prepared and necessary entry in the general diary was made, extract of which is Ext. A-23. Devendra Kumar Thapliyal (PW-8) Inspector Incharge of the police station- Kashipur, took up the investigation of the case. Meanwhile, the injuries of Roop Singh (P.W. 2) were recorded in the Civil Hospital at 7:45 p.m. on the same day i.e. 01.01.1983. Inquest report (Ext. A-3) was prepared after dead body of D-1 was taken into possession by the police on 02.01.1983, at 7:30 a.m. and police form No. 33 (Ext. A-4), sketch of his dead body (Ext. A-5), police form No. 13 (Ext. A6) and letter (Ext. A-7) to Chief Medical Officer for post mortem examination, were prepared. After the death of D-2, his dead body was also taken into possession by police on 02.01.1983, at about 12:30 p.m. and an inquest report (Ext. A-15), police form No. 33 (Ext. A- 16), sketch of his dead body (Ext. A-17), police form No. 13 (Ext. A-20) and letter (Ex.A-8) to Chief Medical Officer, requesting for post mortem examination, were prepared. The Investigating Officer prepared the site plan and recorded the statements of the witnesses. He also prepared the recovery memo of the turban lying at the place of occurrence. After completion of investigation the Investigating Officer submitted charge sheet. Since the accused persons pleaded innocence, trial was held. Placing reliance on the evidence of an injured witness PW-2 and the eye witnesses PWs 1 and 3 the trial Court recorded the conviction and found the appellant guilty.

(3.) IT is to be noted that the background as projected by the prosecution is that the accused requested the deceased to have some wine with him as weather was very cold. D-1 replied that he did not like to have wine with a person like the accused. On this the accused pleaded that the family members of D-1 and D-2 had got him punished and if he did not take wine with him the enmity would be continued. On this D-2 told him that they did not have wine with people like the accused and he can do whatever he wanted to do. On this the appellant went inside the house and came back with a gun. The accused, deceased and the witnesses were travelling in a tractor which was moving at a high speed. The appellant did not direct first shot towards the deceased, he fired in the air and thereafter indiscriminately fired shots.