RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No.1334 of 2001 (Old No.1567 of 1988) Rajendra Singh alias Raje Singh, S/o Khilap Singh & five others …….….…. Appellants Versus The State …………… Respondent Dated: May 15, 2008 Sri Vikas Pandey, holding brief of Sri V.B.S. Negi, learned counsel for the appellants Sri Harish Pujari, learned Addl. G.A. for the State/respondent HON. DHARAM VEER, J. This appeal, preferred by the appellants u/s 374(2) of Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 02.07.1988 passed by Sessions Judge, Chamoli in S.T. No.15 of 1987, whereby the learned Sessions Judge has convicted the appellants-Rajendra Singh, Dalip Singh, Puran Singh, Bakhtawar Singh, Smt. Kashi Devi and Kunwar Singh under Section 148 of Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced them to three years’ rigorous imprisonment. All these appellants were further convicted under Section 325 I.P.C. read with Section 149 I.P.C. and were sentenced to four years’ rigorous imprisonment. Both the sentences were directed to run concurrently. However, co-accused Km. Sushila, Smt. Pushpa Devi, Smt. Parvati Devi, Km. Savitri and Gulab Singh were also convicted under Section 148 I.P.C. and under Section 325 read with Section 149 I.P.C. but they were 2 awarded the benefit of first offender under the Probation of Offenders Act, 1958. Another co-accused Pan Singh was acquitted of the charges levelled against him. 2. Heard Sri Vikas Pandey holding brief of Sri V.B.S. Negi, learned counsel for the appellants and Sri Prabhakar Joshi, learned brief holder for the State and perused the entire material available on record. 3. In brief, the prosecution case is that on 03.03.1987, son of complainant Rukma Devi namely Chandri Ram and her brother-in-law Roop Ram had gone with one S.I. At about 02:00 P.M. appellants/accused Rajendra Singh, Dalip Singh, Puran Singh, Bakhtawar Singh, Smt. Kashi Devi, Kunwar Singh along with co-accused Kishan Singh, Gulab Singh, Balbir Singh, Awwal Singh, Km. Sushila, Km. Savitri, Smt. Parvati and Smt. Pushpa Devi, being armed with Sontis alike Lathis, Dandas and Thamalis (a sharp edged weapon to cut wood) were running down from the village side and were calling (pakdo, pakdo) and her son Chandri Ram and brother-in-law Roop Ram were running forward. At that time, she along with her daughters-in-law Rukmani Devi and Saroj were working in the field. On hearing noise when complainant got up, then she saw that her son Chandri Ram was surrounded by the appellants/accused and other co-accused persons. However, the brother-in-law of the complainant could manage to save his life by running. It was also averted that thereafter the appellants along with co-accused persons immediately started assaulting the son of the complainant by Dandas, Sotis and Thamalis. The son of the complainant prayed with folded hands to the 3 appellants and co-accused persons praying to leave him but they did not pay any heed to it. Due to the injuries caused by the appellants along with co- accused persons, son of the complainant namely Chandri Ram died in the field of Chhottan Singh. With the same averments, Smt. Rukma Devi lodged the FIR of the said incident orally at RoP Tharali, District Chamoli on 03.03.1987 at 04:30 P.M. On the basis of the oral FIR, a Chik FIR was prepared by Constable Clerk Om Prakash, i.e. Ex.Ka-1. The entry was also made in the G.D., the copy of the G.D. is Ex.Ka-7. The investigation of the case was initially entrusted to P.W.6 S.I. Dhiraj Singh. The inquest report of the dead body was also prepared by S.I. Dhiraj Singh on 03.03.1987, the inquest report is Ex.Ka-4. Thereafter, the post-mortem of dead body of Chandri Ram was conducted on 05.03.1987 at 12:00 P.M., the post- mortem report is Ex.Ka-2. Ex.Ka.3 is the copy of report given by P.W.5 S.I. Bhagwati Prasad Kukreti to Patwari, Patwari Circle Talwari. During the course of investigation, the I.O. took in his possession the blood stained clay and the plain clay and a Fard was prepared by him i.e. Ex.Ka-5. The I.O. also took broken pieces of three Sontis and one Nesuda (a part of the plough) in his possession and he also prepared a Fard, i.e. Ex.Ka-6. Specimen of seal was also prepared by the I.O., i.e. Ex.Ka.8. The I.O. also inspected the place of occurrence and prepared the site plan i.e. Ex.Ka-9. During the course of investigation, the I.O. recorded the statements of the witnesses and after completing the investigation, he submitted the charge sheet, i.e. Ex.Ka-12. The I.O. could not investigate the present case against the two accused persons namely Balbir Singh and Awwal Singh because they were in 4 the defence services, as such the charge sheet could not be filed against them. 4. Learned Munsif Magistrate, Karnprayag committed the case to the court of Sessions on 30.07.1987 under section 209 Cr.P.C. after complying with the provisions of Section 207 Cr.P.C. 5. On 24.08.1987, the Sessions Judge, Chamoli framed the charge against the appellants/accused Rajendra Singh @ Raje, Dalip Singh, Puran Singh, Bakhtawar Singh, Smt. Kashi Devi, Kunwar Singh and other co-accused persons namely Kishan Singh, Gulab Singh, Pan Singh, Km. Sushila, Km. Parvati, Smt. Savitri & Smt. Pushpa, u/s 148 IPC and u/s 302 read with Section 149 IPC. The charge was read over and explained to the appellants and co-accused persons who pleaded not guilty and claimed to be tried. 6. To prove its case, the prosecution has examined P.W.1 Rukma Devi, complainant of the case, Rukmani Devi, wife of deceased Chandri Ram, Roop Ram, brother in law of the complainant, Dr. Anil Kumar, who conducted the post-mortem of the deceased Chandri Ram, P.W.5 S.I., Bhagwati Prasad Kukreti, P.W.6 Saroj Devi, wife of deceased Chandri Ram, P.W.7 Khilaf Ram, P.W.8 Chandri Ram S/o Ratan Ram, P.W.9 S.I. Dhiraj Singh, I.O. of the case and P.W.10 S.O. Bharat Singh Yadav, also an I.O. of the case. 7. Thereafter, the statements of the appellants as well as of other co-accused persons were recorded u/s 313 of Cr.P.C. The oral and documentary evidence 5 was put to them in question form, who denied the allegations made against them and stated that they were falsely implicated. However, in defence, they had not produced any oral or documentary evidence. 8. After appreciating the evidence on record and after hearing learned counsel for the parties, the learned Sessions Judge, Chamoli vide his judgment and order dated 02.07.1988 convicted the appellants- Rajendra Singh, Dalip Singh, Puran Singh, Bakhtawar Singh, Smt. Kashi Devi and Kunwar Singh under Section 148 of I.P.C. and sentenced them to three years’ rigorous imprisonment. All these appellants were further convicted under Section 325 I.P.C. read with Section 149 I.P.C. and were sentenced to four years’ rigorous imprisonment. Both the sentences were directed to run concurrently. However, co-accused Km. Sushila, Smt. Pushpa Devi, Smt. Parvati Devi, Km. Savitri and Gulab Singh were also convicted under Section 148 I.P.C. and under Section 325 read with Section 149 I.P.C. but they were awarded the benefit of first offender under the Probation of Offenders Act, 1958. Co-accused Kishan Singh died during trial, hence the trial was abated against Kishan Singh on 30.11.1987. Feeling aggrieved by the aforesaid judgment and order dated 02.07.1988, the appellants have preferred the present appeal. 9. This appeal was filed in the High Court of Judicature at Allahabad on 05.07.1988. The High Court of Uttarakhand has received this appeal u/s 35 of the U.P. Reorganization Act, 2000 after creation of State of Uttaranchal now Uttarakhand. 10. Before further discussion, it is pertinent to mention the ante-mortem injuries found on the person 6 of deceased Chandri Ram, which are reproduced as under: - 1. Lacerated wound on scalp left side, 12 cm above the bridge of the nose and 2 cm on left side, 2cm x 2cm margins irregular, clotted blood, cut with bone deep. 2. Contusion at the right side face in front of ear, 6 cm x 4 cm, reddish blue in colour. 3. Contusion at left side of face in front of ear, 6 cm x 3 cm, reddish blue in colour. 4. Contusion at right side of forehead below hairline, 3cm x 2cm, reddish blue in colour. 5. Angular deformity at middle of right arm with contusion 12 cm x 6 cm with two parallel borders of dark gray colour 4 cm apart, with reddish blue colour. 6. Contusion over front of right side of chest above nipple, 6 cm x 4 cm with cryptus at fourth and fifth ribs with reddish blue colour. 7. Lacerated wound, right middle longer phalanx 1cm x 1cm at tip, clotted blood present. 8. Contusion over left fore-arm posterior aspect 18 cm x 8 cm with parallel borders with dark gray colour, 4 cm apart, reddish blue in colour. 9. Contusion over left shoulder below acrominon 10 cm x 8 cm with two parallel borders of gray colour 4 cm apart, reddish blue in colour. 10. Multiple contusions at whole of back, twelve in number, measuring from 2 cm x 3 cm to 6 cm x 10 cm, reddish blue in colour. 11. Contusions at right leg and ankle at lateral aspect, 18 cm x 6 cm with bony cryptus and right lateral malleolus, reddish blue in colour. 7 12. Laceration above left lateral malleolus 2 cm x 2 cm with contusions surrounding 12 cm x 6 cm, reddish blue in colour. 13. Contusion over left leg lateral aspect 6 cm x 10 cm. with parallel borders, reddish blue in colour. Cause of death was shown as a result of ante mortem injuries and shock. 11. To prove its case the prosecution examined P.W.1 Rukma Devi, complainant of the case, who has stated in her statement that her son Chandri Ram was murdered. Before three months of incident, Himmat Singh died due to drinking of liquor and due to this reason her son Chandri Ram was arrested. Chandri Ram came out on bail after staying for three months in jail. She also stated that some police persons came to her house and took Chandri Ram and Roop Ram with them for preparing the maps. Meanwhile, the incident had occurred and Roop Ram ran away. It was also stated that she along with her two daughters-in-law were working in 6-7 fields away from the place of occurrence. The appellants Rajendra Singh, Dalip Singh, Puran Singh, Bakhtawar Singh, Kashi Devi, Kunwar Singh along with co-accused Kishan Singh, Balbir Singh, Pushpa, Parvati, Sushila, Savitri and Pan Singh surrounded Chandri Ram and Roop Ram. Roop Ram could manage to run from there. All these appellants along with co-accused persons, being armed with Lathis, Sothis and Nesudas, killed Chandri Ram in the field of Chhutan Singh. Co-accused Sushila and appellant/ accused Kashi were armed with Nesuda; co- accused Diwan Singh and appellants/accused Puran Singh and Kunwar Singh were armed with Lathis. She 8 also stated that the above said accused persons killed Chandri Ram with the weapons Lathis, Sotis and Nesuda. Her daughters-in-law Saroj and Rukmani were also present on the place of occurrence. Thereafter, she fell on the body of her son in order to save him but co- accused Kishan Singh, Awwal Singh and appellant/ accused Bakhtawar Singh threw her away. She also received some minor injuries in this incident. She also stated that when the accused persons killed her son, at that time there was 2 o’clock in the day. After killing her son, accused persons ran away from the place of occurrence. Thereafter, she went to Police Chowki Tharali and her two daughters-in-law stayed with the dead body of her son. She orally lodged the report in the police station and she also put her thumb impression on it, that report is Ex.Ka.1. She also stated that she is a Harijan woman and the accused persons were the Thakurs of the said village. Her son Chandri Ram was working in Dehradun and had come in the village on leave for leaving his wife and children. This witness was cross-examined at length by the defence counsel but nothing has come out from his evidence which may create any doubt in his evidence. The evidence of this witness is reliable, believable and natural. 12. P.W.2 is Rukmani Devi, who has stated that she is the wife of deceased Chandri Ram. Before three months of this incident, Himmat Singh died in the village and in this regard a false case was lodged against her husband and two other persons. She also stated that police has arrested Chandri Ram in this case and on 28.02.1987, Chandri 9 Ram reached home after being released on bail. On 3.03.1987, at about 2:00 P.M. in the village, the Thakur persons had committed quarreling with her husband Chandri Ram. She also stated that one S.I. and Constable had come to her home and took Chandri Ram with them in order to prepare the map. Her husband Chandri Ram along with Roop Ram went with the police persons. Out of the appellants/accused Rajendra Singh, Dalip Singh, Puran Singh, Bakhtawar Singh, Kashi Devi, Kunwar Singh along with co- accused Kishan Singh, Gulab Singh, Balbir Singh, Awwal Singh, Pan Singh, Pushpa, Parvati, Sushila, Savitri, some of them were on the road. She also stated that she was in the house when the police persons took Chandri Ram and Roop Ram with them. Thereafter, she had gone with her mother-in-law to work in field. The above-said accused persons chased Chandri Ram and Roop Ram in order to kill them. Her father-in-law Roop Ram could manage to run from there from one side of road and her husband came in the field of Chhautan Singh after jumping from the back wall of the house. Co-accused Pan Singh uttered the appellants and other co-accused persons to kill Chandri Ram and also called him Domda. Co-accused Kishan Singh was armed with a Thamali and appellant/accused Kashi Devi was armed with Nesuda and other accused persons were armed with Dandas and Sontis. On seeing that the accused persons were chasing her husband, she along with her mother in law along with second wife of her husband, reached at the field of Chhautan Singh. She also stated that she had prayed with folded hands to appellant/accused Bakhtawar Singh and co-accused Kishan Singh not to beat her husband. Then, appellant/ accused Rajendra 10 Singh threw her away by pushing her in another field. She also stated that co-accused Pan Singh had only called other accused persons to kill her husband Chandri Ram and Pan Singh had not made any attempt to cause injury and other accused persons killed her husband. Co-accused Kisan Singh had caused injury from the backside of Thamali to Chandri Ram. She also stated that her husband had died on the spot due to the injuries of Lathis, Dandas, Sontis and Thamali. Her mother-in-law lodged the report in the Police Chowki. She along with Saroj stayed on the spot. This witness was also cross-examined at length by the defence counsel but nothing has come out from her evidence which may create any doubt in her evidence. The evidence of this witness is also reliable, believable and natural. 13. P.W.3 is Roopram who has stated that deceased Chandri Ram was his nephew. His nephew Chandri Ram was arrested in murder case of Himmat Singh and he came out after being released on bail by the court. On 2.12.1986, Kishan Singh, Narain Singh and Keshar Singh came to his house and informed him that Patwari had called him. Thereafter, he went to the Patwari along with the above-said persons but he could not find the Patwari. When he was returning from the Patwari, then in Talwari market, the above-said three persons and eleven other persons viz. Meharban, Balwant, Raghubir, Darban Singh, Chintamani, Kundan, Rajendra, Bhuwan Singh, Mohan Singh, Ummed Singh and Dalip Singh had caught him and pressed his neck and caused him an injury of Lathi and also hurled stones on him due to which he received injuries on the finger of his right hand, face 11 and head. On 3.3.1987, Sri Kukreti, S.I. of Tharali and one Constable came to his village for investigation in respect of the above said Marpit. His nephew Chandri Ram was at home. The S.I. asked him to point out the place where he was beaten. Initially he refused for the same due to fear, however at the instance of S.I., he along with his nephew moved with the S.I. He also stated that he and Chandri Ram were residing in one common house. After moving with S.I., as soon as they reached in front of tea stall of Mohan Singh and Gopal Singh, he saw that some villagers were doing a meeting. On seeing him with the S.I., appellants/ accused Rajendra and Bakhtawar jointly called the villagers to beat him and his nephew and to throw them out of the village. The villagers after reaching near to the S.I., asked him that why he had brought him and Chandri Ram. Appellant/accused Rajendra Singh, Dalip Singh, Bakhtawar Singh, Smt. Kashi along with some other persons Pan Singh, Awwal Singh, Meharban Singh, Mahipal Singh, Mohabbat Singh, Balwant Singh, Gopal Singh, Balwant Singh S/o Makar Singh, Sushila, Pushpa, Savitri, Purni, Bhawani Devi and some other persons of Panchayat were collected over there. Out of the above-said persons, some of them were present in the court and some of them were not present. These villagers came towards the S.I. from the Panchayat meeting and asked the S.I. that where he was taking Roop Ram and Chandri Ram (deceased). The S.I. asked them that he wanted to see the place where he (Roop Ram) received the injuries. On this, some villagers caused injury to S.I. with Lathi due to which the S.I. fell down. Due to fear, he ran from there and appellant Smt. Kashi Devi caused injury by Lathi to his nephew Chandri Ram. Chandri 12 Ram ran down towards the other fields and he ran towards his house. He also stated that the accused persons were armed with Lathis, Thamalis and Nesuda and Nesuda is used for ploughing the field. Co-accused Sushila was having Thamali in her hand and co- accused Kishan Singh was having Nesuda in his hand. Appellant Kashi Devi was armed with a Lathi and she was not having Nesuda in her hand. He also stated that rest of the accused were having Lathis in their hands. Appellants/accused Rajendra Singh, Bakhtawar Singh, Dalip Singh, Puran Singh, Kunwar Singh, Smt. Kashi Devi and co-accused Kishan Singh, Pan Singh, Gulab Singh, Balbir, Awwal Singh, Km. Sushila, Km. Savitri, Pushpa and Parwati, all of them chased Chandri Ram and they could mange to surround him in the field of Chhautan Singh and started beating him with Lathis, Thamalis etc. He also stated that he saw the appellants and other co-accused persons while beating Chandri Ram from 80-90 meters away. He did not reach near Chandri Ram because after killing Chandri Ram, co-accused Awwal Singh, Balbir Singh and appellant/ accused Puran Singh also chased him and they were also shouting and saying to catch and kill him. Thereafter, he entered into his house after moving from bushes. After some time, Rukma Devi and his daughter- in-law informed him that Chandri Ram died in the field. On the night of incident, due to fear, he went to Devrada in his relations’ house and he came back to his house on the night of ninth day. This witness was also cross- examined at length by the defence counsel but nothing has come out from his evidence which may create any doubt in his evidence. The evidence of this witness is also reliable, believable and natural. 13 14. P.W.4 is Dr. Anil Kumar Rai who has stated that on 5.3.1987, he was posed as Medical Officer I/c in District Hospital, Gopeshwar. Constables Lokmani and Girdhari Prasad had brought the dead body of deceased Chandri Ram to the hospital and they also identified the dead body of Chandri Ram. He conducted the post-mortem of dead body of Chandri Ram. The deceased was about 40 years of age and he had opined that deceased was killed two days back. He had found the ante-mortem injuries on the person of deceased Chandri Ram which have been mentioned in para 10 of this judgment. Further on internal examination, he found that on the left side below the injury no.1, blood was clotted in the brain, and fourth and fifth ribs of the right side were broken and the right side lung was lacerated and one-liter blood was found in it. Accordingly, he opined that these bodily injuries were sufficient to cause the death and the deceased also got shocked due to these injuries. He also prepared the post-mortem report and proved the same i.e. Ex.Ka-2. He also stated that deceased could have received all the above said injuries from beating by wooden Sontis and other wooden articles. He further stated that the lacerated wounds also could have been come from some iron weapon. He also stated that these injuries could have been caused on the head and ribs from the wooden handle of backside of Thamali. He also stated that he found the clay only on the face of deceased. He also stated that before conducting post-mortem, he removed white pant, one shirt, one sweater, one under shirt and one Janao from the body of deceased. 15. P.W.5 is S.I. Bhagwati Prasad Kukreti who has stated that from December 1986 to May 1987, he 14 was posted as S.I. in P.S. Tharali. On 3.3.1987, he went for investigation of some other case in Case Crime No.2/1987 of P.S. Kirtinagar and moved towards Talwari. He was accompanied by Constable Narendra Joshi. He reached at Village Ghala at the residence of Roopram and Chandri Ram in the afternoon at about 12:00 P.M. He investigated the matter and moved to inspect the place of occurrence in respect of Case Crime No.2/1987 along with Roop Ram and Chandri Ram. As soon as they reached on the road from the teashop of Gopal Singh, he saw that 6-7 persons were there in the shop of Gopal Singh. Out of them, Pan Singh, Balwant and Kishan were known to him earlier and other 3-4 persons did not know but he could identify them by their faces. The persons assembled in the shop asked him that he let free the murderers of Himmat Singh and had connived with the family men of Roop Ram and he did not care to come to the house of Himmat Singh even once. He told the assembled persons that the investigation in the murder of Himmat Singh was being done by S.O. Karanprayag and he was investigating the Marpit committed with Roopram. Even after saying so, the assembled persons asked him that they would take revenge of the murder of Himmat Singh. He tried to make them understand that it was not correct to do so. These persons assembled on the teashop gave a loud call to the villagers from the village and started committing Marpit with Chandri Ram and Roop Ram after surrounding them. He along with Constable Joshi gave protection to Chandri Ram and Roop Ram by extending their hands. After hearing the loud call, some men and women from the houses, towards the down of the road, came and started shouting (esjs HkkbZ dks ykvks] esjs firk dks ykvksA). He saw that these 15 collected men and women were armed with Sontis, Dandas and Thamalis. He tried to make understand the mob but they did not agree to it. When he and Constable Joshi tried to protect Chandri Ram and Roop Ram from the mob by extending their hands, then he and Constable Joshi also received the injuries by Sontis and fists. He also stated that in between he also received injury either by a Sonti or by a Danda on head from the back due to