IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL COURT’S ORDER WHETHER THE CASE IS OR IS NOT APPROVED FOR REPORTING [Chapter VIII, Rule 32(2) (b)] Description of Case Criminal Appeal No. 347 of 2001 Decided on: July 24, 2006 (Old No. 1978 of 1986) A.F.R. (Approved for Reporting) Not approved for Reporting Date. 24.07.2006 (Initial of Judge) Note :- Bench Reader will attach this at the top of the first page of the judgment when it is put up before the Judges for signature. 1 Reserved Judgment IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Criminal Appeal No. 347 of 2001 (Old No. 1978 of 1986) 1. Ram Singh S/o Bhoore 2. Chhotey S/o Ghasi 3. Som Pal S/o Ghasi 4. Bhure S/o Ghasi 5. Chhidda S/o Baldeo All R/o Village Barkhera Pandey, P.S. Kashipur, District Nainital. ………… Appellants Versus The State ……………. Respondent Mr. P.M.N. Singh, Senior Counsel assisted by Ms. Prabha Noliyal, Counsel for the appellants. Mr. D.K. Sharma, Government Advocate with Mr. H.C. Pande, Addl. Government Advocate for the respondent –State. Coram: Hon’ble Rajeev Gupta, C.J. Hon’ble Prafulla C. Pant, J Dt: July 24, 2006. [Per Hon’ble Prafulla C. Pant, J.] This appeal, preferred under Section 374(2) of the Code of Criminal Procedure, 1973 (for brevity hereinafter Cr.P.C.), is directed against the judgment and order dated 15.07.1986, passed in Sessions Trial No. 170 of 1984, by II Additional Sessions Judge, Nainital, whereby, accused/ appellants Ram Singh, Chhotey, Som Pal, Bhure and Chhidda have been convicted under Section 302 read with Section 149 of the Indian Penal Code, 1860 (for brevity 2 hereinafter I.P.C.), and under Section 323 read with Section 149 of the I.P.C. , and each one of them has been sentenced to imprisonment for life under Section 302 read with Section 149 of the I.P.C.; rigorous imprisonment of three months under Section 323 read with Section 149 of the I.P.C. Apart from this, each of the accused / appellants namely, Som Pal, Chhotey, Bhure and Ram Singh has been further convicted and sentenced to rigorous imprisonment for one year under Section 148 of the I.P.C. Accused / appellant Chhidda has been further convicted and sentenced to rigorous imprisonment of six months under Section 147 of the I.P.C. 2) We heard learned counsel for the parties and perused the entire record. 3) Prosecution story, in brief, is that on 08.07.1984, at about 5:00 A.M., accused / appellants Som Pal, Chhotey, Bhure and Ram Singh, armed with ‘TABAL’ (a heavy sharp edged weapon) and accused / appellant Chhidda, armed with ‘MOOSAL’ (Pestle) along with Smt. Kranti, Smt. Maya and Smt. Budhiya came in the house of Smt. Ram Murti (P.W. 1), in village Barkheda Pandey, P.S. Kashipur, District Nainitial, and started assaulting her husband Jhabra (deceased). Smt. Ram Murti (P.W. 1) rushed to save her husband. Meanwhile, her son Sheonath, brother-in-law (DEVAR) Chandrapal (another deceased) and sister-in-law (DEVRANI), Heerawati (P.W. 5) also rushed to the spot. However, accused / appellants assaulted them also with ‘TABAL’ and ‘MOOSAL’. On raising of alarm, other persons, including P.W. 2 Babu 3 Ram and P.W. 3 Imrat Singh, from the neighbourhood reached there. On seeing the villagers accused / appellants along with the aforementioned three ladies Kranti, Maya and Budhiya ran away. Injured Jhabra and Chandrapal were taken to Hospital, where Chandrapal was declared brought dead and Jhabra was admitted in the Hospital. However, he too later succumbed to the injuries on third day of the incident. In the Hospital injuries on the person of Jhabra, Ram Murti and Heerawati were examined. Smt. Ram Murti (P.W. 1) got oral First Infromation Report, at 9:15 A.M., on the same day lodged with police station Kashipur, which was at a distance of 7 K.M. The check First Information Report (Ext. A-1) was prepared by Head constable Prem Shankar Sharma, on the basis of oral report of Ram Murti. The necessary entry in the general diary was made by the Head Constable, copy of extract of which is Ext. A-10. The crime was investigated initially by Incharge Inspector, Ram Asrey Singh (P.W. 9), who sent Sub Inspector Om Prakash Sharma to take the dead body of Chandrapal in his possession. He (Sub Inspector Om Prakash Sharma) took the dead body of Chandrapal in his possession in the Hospital, on the very day i.e. 08.07.1984, and prepared inquest report (Ext. A – 2). He further prepared police form No. 13 (Ext. A – 16), sketch of the dead body of Chander Pal (Ext. A – 20), and letter (Ext. A – 17) addressed to the Chief Medical Superintendent, requesting for postmortem of said dead body. P.W. 7 Dr. R.N. Singhal, conducted the autopsy on the dead body of Chandrapal on 08.07.1984, at 3:20 P.M., and prepared the 4 postmortem examination report (Ext. A – 8). According to the Medical Officer, the cause of death of Chandrapal was due to ante mortem head injury. Before that, at about 11:35 A.M. and at 11:45 A.M., he also examined injuries on the person of Smt. Ram Murti and Smt. Heerawati, respectively and prepared injury reports Ext. A – 5 and Ext. A –6. On the same day i.e. on 08.07.1984, P.W. 8 Dr. P.K. Joshi recorded injuries on the person of Jhabra, at the time of admitting him in the Hospital, and prepared injury report Ext. A –9. However Jhabra later succumbed to his injuries on 10.07.1984. The police took his dead body into their possession and prepared inquest report Ext. A –3. It further prepared police form No. 13 (Ext. A – 22), sketch of the dead body of Jhabra (Ext. A –23), and letter (Ext. A –21) to the Chief Medical Superintendent, requesting for postmortem examination of the said dead body. P.W. 6 Dr. S.P. Gupta conducted autopsy on the dead body of Jhabra on 10.07.1984, and prepared postmortem examination report (Ext. A –4). According to the Medical Officer, the death of Jhabra was on account of shock due to injury on the vital part i.e. brain. Meanwhile, the police collected blood stained piece of quilt, simple soil and blood stained soil, blood stained ‘BAAN’ (threads) of cot, and prepared memos Ext. A –11, Ext. A &12 and Ext A &13. The investigating Officer recorded the statement of witnesses and also prepared site plan Ext. A &14. The articles were sent to the Chemical Examiner for examination. The investigation was completed by another Inspector R.P. Singh (after the transfer of the earlier officer), who submitted charge sheet 5 (Ext. A –15), against all the five accused / appellants along with three aforementioned women accused, to the Magistrate concerned. 4) The Magistrate, on receipt of the charge sheet, it appears after giving necessary copies to the accused persons, as required under Section 207 of the Cr.P.C., committed the case to the court of Sessions for trial. The trial court, after hearing the prosecution and the defence, framed charge of two heads against accused / appellants Som Pal, Chhhotey, Bhure, Ram Singh, Chhidda, Smt. Kranti, Smt. Maya and Smt. Budhiya regarding the offence allegedly committed by them, punishable under Section 302 read with Section 149 of the I.P.C., and that of the offence punishable under Section 323 read with Section 149 for the I.P.C. The trial court further framed charge of the offence punishable under Section 148 against accused / appellants Som Pal, Chhotey, Bhure and Ram Singh. It further farmed separate charge of offence punishable under Section 147 of the I.P.C. against accused / appellant Chhidda, Smt. Kranti, Smt. Maya and Smt. Budhiya. All the accused person pleaded not guilty and claimed to be tried. On this, the prosecution got examined P.W. 1 Smt. Ram Murti (informant and injured eyewitness); P.W. 2 Babu Ram (an eyewitness); P.W. 3 Imrat Singh (another eyewitness); P.W. 4 Shanti Prasad (witness of the preparation of the inquest report of the dead body of Jhabra); P.W. 5 Heerawati (injured eyewitness); P.W. 6 Dr. S.P. Gupta (who conducted autopsy on the dead body of Jhabra); P.W. 7 Dr. R.N. 6 Singhal (who recorded injuries on the person of Smt. Ram Murti, Heerawati and Shivnath and also conducted autopsy on the dead body of Chandrapal); P.W. 8 Dr. P.K. Joshi (who recorded the injuries of Jhabra, on 08.07.1984, at the time of his admission in the Hospital); P.W. 9 Ram Asrey Singh (who investigated the crime) and P.W. 10 Sub Inspector R.P. Binjola (who collected the simple soil & blood stained soil, blood stained clothes and ‘BAAN’ (threads) of the cot, and prepared Ext. A &11, Ext. A&12 and Ext. A &13. Apart from this, P.W. 11 Constable Bhudev Singh and P.W. 12 Constable Charan Singh filed their affidavits (cross examination waived) regarding the fact that the dead bodies of Chandrapal and Jhabra were taken in a sealed condition for the postmortem examination. The entire oral and documentary evidence was put to the accused persons under Section 313 of Cr.P.C. regarding which in their reply, the accused persons alleged that evidence adduced against them is false and they have falsely been implicated in the case due to enmity. No evidence in defence was adduced on behalf of the accused persons. The learned Sessions Judge, after hearing the prosecution and the defence, found that charges against Smt. Kranti, Smt. Maya and Smt. Budhiya were not proved beyond reasonable doubt and they were acquitted of the charges. However, the trial court found accused / appellant Som Pal, Chhotey, Bhure, Ram Singh and Chhidda guilty of the offence punishable under Section 302 read with Section 149 of the I.P.C. and that of offence punishable under Section 323 read with Section 149 of the I.P.C. It further found accused / appellants 7 Som Pal, Chhotey, Bhure and Ram Singh guilty of offence punishable under Section 148 of the I.P.C.; and accused / appellant Chhidda guilty of the offence punishable under Section 147 of the I.P.C. After hearing on sentence, all the convicts were sentenced by the trial court as above (mentioned earlier by us in the first paragraph). Aggrieved by said judgment and order dated 15.07.1986, the accused / appellants Ram Singh, Chhotey, Som Pal, Bhure and Chhidda preferred the appeal, before the Allahabad High Court in the year 1986, from where it has been received by transfer to this Court under Section 35 of the U.P. Re-organization Act, 2000, for its disposal. 5) Before further discussions, it is pertinent to mention here, the ante mortem injuries recorded on the dead body of deceased Chandrapal and deceased Jhabra and the injuries found on the person of Smt. Ram Murti and Smt. Heerawati. From the postmortem examination report (Ext. A –8) read with the statement of P.W. 7 Dr. R.N. Singhal, who conducted autopsy, following ante mortem injuries were found on the dead body of Chandrapal: 1. Incised wound 2.5 cm X 0.5 cm X bone deep present over left side of forehead; 2.5 cm above left eyebrow. 2. Incised wound size 3.5 cm X 1.5 cm present over left side of forehead; 1 cm above injury No. 1. 8 3. Multiple abraded contusions within an area of 6 cm X 4 cm present on the left side of forehead; 2 cm above left eye. 4. Incised wound size 6 cm X 1.5 cm X bone deep present over left side of scalp; 8 cm above left ear. 5. Incised wound 2 cm X 0.5 cm X bone deep present over left side chin; 3 cm below angle of mouth. 6. Incised wound size 1.5 cm X 0.5 cm present over left side of face; 1 cm away from angle of mouth. 7. Incised wound 10 cm X 1.5 cm X bone deep present over top of skull; 14 cm above left ear. 8. Abraded contusion size 4 cm X 2 cm present over front of right shoulder. 9. Abraded contusion size 6 cm X 0.5 cm present over outer side of left shoulder. 10. Incised wound size 6 cm X 1.5 cm X muscle deep present over back of left shoulder. 11. Abrasion size 2 cm X 0.5 cm present over back of thumb of right hand. 12. Incised wound size 10 cm X 2 cm X bone deep present over back of skull; 6 cm away from injury No. 7. 9 According to the Medical Officer death of Chandrapal was caused due to ante mortem head injury. 6) Before recording ante mortem injuries of Jhabra (another deceased), it is pertinent to mention here, the injuries recorded on his person at the time of his admission in the Hospital. Medical examination report Ext. A &9, read with statement of P.W. 8 Dr. P.K. Joshi, shows following injuries found on the person of the Jhabra on 08.07.1984, at the time of his admission in the Hospital: 1. Oblique incised wound on left side of head 5 cm X ½ cm X bone deep; 6 cm above pinna of left ear. Fresh bleeding present. 2. Incised wound on the back of head, direction transverse; 10 cm above the left ear 3 cm X ½ cm X skin deep. 3. Multiple incised wound 6 in number around the left eye region, 6.5 cm in diameter: (A) 3 cm X ¼ cm X skin deep; 3 cm above the left eye. (B) 2 cm below (A), elliptical in nature, 1 cm X ½ cm X skin deep. (C) Oblique round outer canthus on left eye, skin deep, 3cm X ½ cm. (D) Transverse around left eyebrow 2 cm X ½ cm X skin deep. 10 (E) Oblique elliptical over left eye 2 cm X ½ cm X skin deep. Fresh bleeding present. 4. Transverse incised wound on the left exterior part of arm, 7 cm below elbow 6 cm X ½ cm X muscle deep. Fresh bleeding present. According to the Medical Officer, the injury No. 1 was kept under observation and X-ray was advised. Rest of the injuries & No. 2 to 4 were simple, duration was fresh. Jhabra later succumbed to above injuries on 10.07.1984, and on postmortem examination by Dr. S.P. Gupta (P.W. 6), following ante mortem injuries were recorded on his dead body, as recorded in Ext. A&4: 1. Stitched and dressed wound, on cutting of the stitches incised wound 5 cm X 0.5 cm X bone deep on left side on front of head / lower end, 6 cm above the left ear. Underlying parietal bone is cut (clean). Brain is coming out from the wound. 2. Stitched and dressed wound, on cutting stitches, incised wound 3 cm X 0.5 cm on the back of head left side transverse, 9 cm above left ear. 3. Incised wound 2.5 cm X 0.4 cm X bone deep on left side of forehead, 3 cm above lateral half of left eyebrow. Wound was stitched and dressed. 11 4. Incised wound 1 cm X 0.4 cm on left forehead; 1 cm above left eyebrow, wound is dressed. 5. Incised wound 2.5 cm X 0.5 cm X skin deep, lateral to lateral angle of left eye. 6. Incised wound 2 cm X 0.4 cm X skin deep on left side of face, just lateral to lateral end of the left eyebrow. 7. Incised wound 2 cm X 0.4 cm X skin deep on left elbow. 8. Stitched and dressed incised wound 6 cm X 0.8 cm on back of left forearm, transverse in direction, 7 cm below left elbow. 9. Stitched incised wound size 1 cm X 0.2 cm X skin deep on medial aspect lower part of left leg just above malleous. The Medical Officer opined that death of Jhabra was caused due to shock on account of the injuries on vital part i.e. brain. 7) P.W. 1 Ram Murti has stated that on the day of incident, it was around 5:00 A.M. when she was coming in her courtyard after washing her face, she saw accused / appellants Som Pal, Ram Singh, Bhure, Chhotey, armed with ‘TABAL’ (a heavy sharp edged weapon) and Chhidda, armed with ‘MOOSAL’ (Pestle) along with Smt. Kranti, Smt. Budhiya and Smt. Maya coming to her house and who told that they have come to finish them all. She 12 further states that they attacked her husband Jhabra. P.W. 1 Ram Murti shouted. On this, her son Sheonath, brother- in-law (DEVAR) Chandrapal and his wife Smt. Heerawati (P.W. 5) reached there. The accused / appellants attacked them. According to P.W. 1 Ram Murti she also received injuries in the incident. Meanwhile, Babu Ram (P.W. 2) and Imrat Singh (P.W. 3) also reached on the spot, who witnessed the accused / appellants committing the crime. According to this witness, in this incident Jhabra, Chandrapal, she herself (P.W. 1), Heerawati (P.W. 3) and Sheonath (son of P.W. 1) received injuries. The accused / appellants after causing the injuries, fled from the place of occurrence. P.W. 1 Ram Murti further states that she along with others, immediately, took her husband Jhabra and brother-in-law (DEVAR) Chandrapal to the Civil Hospital, Kashipur, on tonga. P.W. 2 Babu Ram, P.W. 3 Imrat and P.W. 5 Heerawati also accompanied them. On reaching the hospital, Chandrapal was declared dead by the doctors. Jhabra was admitted in the Hospital in an injured condition. P.W. 1 Ram Murti further states that she lodged oral First Information Report, which was recorded by the police in the form of Ext. A&1. The statement of P.W. 1 Ram Murti gets corroboration from the injury received by her, which are recorded on 08.07.1984, at 11:35 A.M., in Ext. A &5 by P.W. 7 Dr. R.N Singhal. The said injuries are mentioned in the report as under: 13 1. Abrasion 1.5 cm X 1.5 cm present over back of right forearm; 10 cm below right elbow joint. 2. Contusion 5 cm X 1 cm present on back of left leg; 6 cm below left knee joint. According to the Medical Officer, the injuries were simple, duration was fresh and injury No. 2 could have been caused by hard object. Injury No. 1 could have been caused by friction against hard object. 8) P.W. 5 Heerawati is another injured eyewitness. She has narrated whole porsecution story, as narrated by P.W. 1 Ram Murti. Like Ram Murti, who is widow of Jhabra, P.W. 5 Heerawati is widow of Chandrapal, another deceased. Presence of these two witnesses in the house at the time of incident is natural and their statement is trustworthy. P.W. 5 Heerawati has fully corroborated what has been stated by her sister-in-law (JETHANI) Ram Murti (P.W. 1) that accused / appellants Som Pal, Bhure, Chhotey and Ram Singh, armed with ‘TABAL’ (a heavy sharp edged weapon) and Chhidda, armed with ‘MOOSAL’ (Pestle), along with three women came in the house of the deceased and attacked Jhabra and thereafter Chandrapal. P.W. 5 Heerawati further states that she herself and Ram Murti were assaulted, and Sheonath, son for Ram Murti, also received injuries in the incident. Her statement gets corroborated from the injury report (Ext. A &6) recorded by P.W. 7 Dr. R.N. Singhal, which discloses following injury: 14 Contusion size 6 cm X 1.5 cm present over back of chest left side; 6 cm below left scapula. According to the Medical Officer, injury of injured was simple, duration was fresh and the injury appears to have been caused by hard object. 9) Mr. P.M.N. Singh, learned Senior Counsel appearing for the appellants argued that the injuries on the person of Ram Murti (P.W. 1) and Heerawati (P.W. 5) are self-inflicted and their statements should not be believed. We are unable to accept the argument of learned counsel for the appellants, for the reason that in a case where two persons have died in an incident, there was no reason to get self-inflicted injuries on the part of the witnesses to implicate the accused persons as homicidal death of Jhabra and Chandrapal is not disputed. 10) The above statements of P.W. 1 Ram Murti and P.W. 5 Heerawati get corroboration from the statements of P.W. 2 Babu Ram and P.W. 3 Imrat Singh, who also witnessed the crime, after they reached there on hearing shout in the house of Jhabra. These witnesses have also stated that accused / appellants Som Pal, Chhotey, Ram Singh and Bhure, armed with ‘TABAL’ and Chhidda, armed with ‘MOOSAL’ along with three ladies were assaulting Jhabra, Chandrapal and their wives. 11) From the above evidence of the eyewitnesses read with the medical evidence, we are in agreement with the 15 trial court that the prosecution has been successful in proving the charges framed against the accused persons. 12) Mr. Singh, learned Senior Counsel for the appellants contended that the prosecution evidence lacks on the point that the First Information Report was sent to the Magistrate as required under Section 157 of the Cr.P.C. and, as such, the First Information Report is ante- timed. We do not see much force in the contention of learned Senior Counsel for the reason that the First Information Report is not only prompt but also the injuries on the person of the injured were recorded in the Hospital on 08.07.1984, before noon. In this connection, learned counsel appearing for the appellants drew our attention to the principle of law laid down in Mehraj Singh Vs. State of U.P., reported in (1994) 5 SUPREME COURT CASES 188; Thanedar Singh Vs. State of M.P., reported in 2002 SUPREME COURT CASES (Cri) 153, and argued that failure to sent copy of First Information Report to the Medical Officer and the Magistrate or non-mentioning of reference of First Information Report in the inquest report makes the First Information Report doubtful as ante-timed. However, in the present case, in view of the medical injury reports of the witnesses and that of Jhabra, recorded in the Hospital on the day of incident before noon, rule out possibility of First Information Report being ante- timed. Apart from this, learned Government Advocate pointed out that in Radha Mohan Singh Vs. State of U.P., reported in (2006) 1 SUPREME COURT CASES (Cri) 661, the aforesaid principle of law laid down in Mehraj Singh (supra) has been over-ruled. We have gone through this 16 latest case law and found that paragraph 11 and 12 of Mehraj Singh’s case (supra) are already over-ruled. 13) Learned Senior Counsel for the appellants further submitted that names of accused is not mentioned in the inquest reports prepared by the police. We do not see any force in the submission, fort he reason that there is no requirement of law nor is there any column in the inquest report, in which the names of the accused are necessarily to be recorded by the police, in the above document. In this connection, it is further argued that in Ext. A &16 i.e. police form No. 13, name of the deceased is not mentioned in column No. 4. However, all other details are mentioned in said from No. 13 and in column No. 4, it is mentioned that the deceased is a male Hindu and the caste of the deceased is also mentioned. As such, the said document does not create any reasonable doubt as to the prosecution story. 14) It is also submitted on behalf of the appellants that the time of incident is not mentioned in the First Information Report. After going through the First Information Report with the statement of the eyewitnesses, we are of the view, that it is clear that the incident has taken place at 5:00 A.M., in the morning of 8th July, 1984. Learned Senior Counsel for the appellants referred to the statement of P.W. 7 Dr. R.N. Singhal, as stated in the cross examination, that the injury could have been caused at 3:00 & 4:00 A.M., also. It is sufficient to mention here that the Medical Officer is not the eyewitness of the incident and he has stated in his 17 examination-in-chief that the incident could have been occurred at 5:00 A.M. on 08.07.1984, which corroborates the statement of the eyewitnesses. 15)