RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.293 OF 2001) (OLD NO.1025/1993) 1. Shyam Singh 2. Rajendra Singh 3. Gambhir Singh All residents of Village Timli, Patti-Udaipur Palla, District-Pauri Garhwal ……… Appellants Versus The State ……… Respondent Dated: April 08, 2009 Sri U.P.S. Negi, Advocate holding brief of Sri G.S. Negi, learned counsel for the appellants Sri M.A. Khan, learned brief holder for the State HON. DHARAM VEER, J. This criminal appeal, preferred by the appellants u/s 374(2) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 27.5.1993 passed by Sessions Judge, Pauri Garhwal in S.T. No.69/1991, State Vs. Shyam Singh and two others, whereby the learned Sessions Judge convicted the appellant/accused Rajendra Singh u/s 324 of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.). The appellants/accused Shyam Singh and Gambhir Singh were also convicted u/s 324 r/w 34 I.P.C and sentence of two years R.I. was awarded to each of the accused/appellants, namely, Rajendra Singh, Shyam Singh and Gambhir Singh. 2. I have heard Sri U.P.S. Negi, Advocate holding brief of Sri G.S. Negi, learned counsel for the accused/appellants and Sri M.A. Khan, learned Brief 2 Holder for the State. Perused the entire material available on file. 3. Learned Chief Judicial Magistrate, Pauri Garhwal vide his letter dated 23.4.2004 has reported that the Appellant No.1 Shyam Singh has died during the pendency of appeal. Hence, the appeal filed by the appellant no.1 Shyam Singh stands abated. 4. In brief, the facts of the case are that Balbir Singh (P.W.1) moved an application before the Sub Divisional Magistrate, Kotdwar with the averments that on 11.5.1990 at 7:00 P:M appellants/accused Shyam Singh, Rajendra Singh and Gambhir Singh attacked on his cousin brothers Umed Singh and Mahipal Singh with sword and cycle chain in which both of them got seriously injured. The accused had intention to kill his cousin brothers and the condition of the injured is very serious. This incident was witnessed by Surendra Singh and some other people of the village. The injured were taken to H.M.G. Hospital, Haridwar on 11.5.1990 and after seeing their serious condition, doctors informed the police and the Sub Divisional Magistrate, Haridwar. In the night, the Police and the Sub-Divisional Magistrate, Haridwar came in the hospital and the S.D.M., Haridwar recorded the dying declaration of the injured Umed Singh. The statement of the injured Mahipal Singh could not be recorded. On 12.5.1990 the information of the said incident was given to the Pradhan, Gram Sabha, Silsari. After that he went to Patwari Chowki to lodge the report but since the Patwari was not available in the Chowki therefore the report could not be lodged. With the same averments, the application was moved by Balbir Singh before the Sub Divisional Magistrate, Kotdwar on 14.5.1990. On this application, S.D.M., Kotdwar passed an order to Nayab Tehsildar for lodging the report and for 3 conducting the investigation. That application is Ext.Ka- 1. On the basis of this application, Patwari has prepared the Chik F.I.R., which is Ext.Ka-2. The necessary entries were also made in the G.D., copy of which is Ext.Ka-3. (In Rural Hilly Areas of State of Uttarakhand, the Patwaris and certain Revenue Officials are being vested with police powers vide U.P. Govt. Notification No.494/VIII-418-16 dated 7.3.1916). Injured Mahipal Singh and Umed Singh were taken to H.M.G. Hospital (Haridwar) where their medical examination was done by the Medical Officer on 11.5.1990 at 11:55 P:M and 11:30 P:M, respectively. The injury report of Mahipal Singh is Ext.Ka-9 and that of Umed Singh is Ext.Ka-10. During the course of investigation, the Investigating Officer (Patwari) took the bloodstained clothes of the injured into his possession and thereafter the FARD was prepared which is Ext.Ka-4. The I.O. also inspected the place of occurrence and has prepared the site-plan, which is Ext.Ka-5. The inspection note was also prepared which is Ext.Ka-6. The I.O. also recovered the bloodstained soil and plain soil from the place of occurrence and the FARD was prepared which is Ext.Ka-7. The I.O. also recorded the statement of the witnesses during the investigation and after completing the investigation, he filed the charge sheet against the appellants/accused. That charge sheet is Ext.Ka-8. 5. Chief Judicial Magistrate, Pauri Garhwal committed the case to the court of Sessions on 11.10.1991, after giving necessary copies to the accused/appellants, as provided u/s 207 Cr.P.C. 6. On 20.12.1991, learned Sessions Judge, Pauri Garhwal framed the charge of offence punishable u/s 307 r/w 34 I.P.C. against the appellants/accused, namely, Shyam Singh, Rajendra Singh and Gambhir 4 Singh. The charge was read over and explained to the accused/appellants, who pleaded not guilty and claimed to be tried. 7. In order to prove its case, the prosecution has examined P.W.1 Balbir Singh-Complainant, P.W.2 Umed Singh-injured eyewitness, P.W.3 Mahipal Singh-injured eyewitness, P.W.4 Ginderf Lal-Investigating Officer of the case and P.W.5 Chandra Pal Singh-eyewitness of the case. 8. After that the statement of the accused/appellants were recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to each of them in question form, who have denied the allegations made against them. In defence, they have not filed anything, as documentary evidence. However, in oral evidence, D.W.1 Gulab Singh was examined. 9. After appreciating the entire evidence available on record and hearing learned counsel for the parties, learned Sessions Judge, Pauri Garhwal vide his judgment and order dated 27.5.1993 convicted and sentenced the appellants/accused as above. Feeling aggrieved by the said judgment and order, the appellants/accused have preferred the present appeal. 10. Before further discussion, it is pertinent to mention the injuries found on the body of the injured Mahipal Singh. The injury report is Ext.Ka-9. The genuineness of the injury report was admitted by the defence counsel by endorsing “Formal proof dispense with”. The injured was medically examined by the Medical Officer on 11.5.1990 at 11:55 P:M and the following injuries were found on his body:- 5 (i) Incised wound 7.5 cm x 2 cm x bone deep on dorsum of left forearm middle third transversally placed, clear cut margins, kept under observation. (ii) Incised wound 3 cm x 1.5 cm x muscle on left scapular region, clear cut margins, bleeding present. (iii) Incised wound 4 cm x 0.2 cm x skin on right scapular region, clear cut margin, bleeding present. (iv) Incised wound 2 cm x 1 cm x muscle on right side back 9 cm below lower end of right scapular, clear cut margin, tailing downwards, bleeding present Opinion:- All injuries fresh and caused by sharp object, Injury No.1 kept under observation, advised X-ray left forearm AP lateral. 11. Injured Umed Singh was also medically examined by the Medical Officer, H.M.G. Hospital, Haridwar on 11.5.1990 at 11:30 P:M. The injury report is Ext.Ka-10. The genuineness of the injury report was admitted by the defence counsel by endorsing “Formal proof dispense with”. Following injuries were found on the body of the injured:- (i) Incised wound 28 cm x 7 cm x bone deep left side forearm on front starting from elbow joint extending upto palm and base of left little finger, clear cut margin, tailing from above downwards, muscle and tendors cut and separated, fresh bleeding present, kept under observation. 6 Opinion:- Injury kept under observation, fresh and caused by sharp object, advised X-ray left forearm and left hand AP lateral, patient admitted, G.C. low. 12. Further to prove its case, the prosecution has examined P.W.1 Balbir Singh, who has stated that the accused/appellants Shyam Singh, Rajendra Singh and Gambhir Singh were known to him and they are the residents of his village. Umed Singh (P.W.2) and Mahipal Singh (P.W.3) are his cousin brothers. On 11.5.1990, there was marriage of sister of Umed Singh and Mahipal Singh and due to this reason they all were present there. The marriage was in the day time. After the function at about 7:00 P:M Mahipal Singh and Umed Singh had gone to return the Panchayat utensils. After returning the utensils when they were coming back to their house then on the back side of the house of accused/appellant Shyam Singh the said incident had taken place. He further stated that Chandrapal told him about the said incident and according to his information he had lodged the report (Ext.Ka-1) before the S.D.M., Kotdwar because the Patwari was not available on the spot. The injured persons were taken to Government Hospital. After that Mahipal Singh was admitted in the Army Hospital, Roorkee. In the cross-examination, he has stated that at the time of incident he was not present at the place of occurrence. 13. P.W.2 is Umed Singh, who has stated that on 11.5.1990 there was marriage of his sister. It was the rule in the village that in whose family marriage was to be performed the said family shall take the water of tank on that day. On 10.5.1990 in the night, accused/appellants 7 Rajendra Singh and Gambhir Singh had disconnected the supply of water on the way. On this, he had a conversation with the accused/appellant Rajendra Singh. On 11.5.1990 at 7:00 P:M after the marriage function, he and his brother Mahipal Singh were returning to their house after handing over the Panchayat utensils. Accused/appellants Shyam Singh, Rajendra Singh and Gambhir Singh were standing in the corner of their house. Shyam Singh was armed with Chain, Rajendra Singh was armed with Sword and Gambhir Singh was armed with Lathi. All these three accused started beating him and his brother with their respective weapons due to which they (Umed Singh and Mahipal Singh) received injuries. Then he raised alarm. His brother Surendra and cousin brother Chandrapal reached at the place of occurrence and they brought them to their house. After that they were taken to Haridwar for treatment. The Police and Magistrate had came there and the Magistrate had recorded his statement. After that his brother Mahipal Singh was taken to Roorkee and thereafter he (Mahipal Singh) was taken to Lucknow for treatment. In the cross-examination, he has stated that Chandrapal is his neighbour. 14. P.W.3 is Mahipal Singh, who has stated that the appellants/accused are residents of his village. On 11.5.1990 there was marriage of his sister. After the marriage at 7:00 P:M, they had gone to return the Panchayat articles. When they were coming back after handing the articles, the accused/appellants were standing there near the house of the accused Shyam Singh. The accused/appellants attacked on him. His elder brother Umed Singh was also with him. Accused Rajendra Singh was armed with Khukhri, Shyam Singh was armed with Chain and Gambhir Singh was armed 8 with Danda. All these accused/appellants assaulted him and his brother due to which both of them received injuries. He and Umed Singh had become unconscious. His elder brother Surendra reached at the spot who brought them to their house. On the same day, he and Umed Singh were taken to Haridwar Hospital for treatment. His brothers informed Balbir Singh about the said incident, who then lodged the report before S.D.M., Kotdwar. 15. P.W.4 is Ginderf Lal, who has stated that on 15.5.1990 he was posted at Patti Udaipur Palla-4. On that day he has received the report (Ext.Ka-1). On the basis of this report, he prepared the Chik F.I.R. (Ext.Ka- 2). The necessary entries were also made in the G.D., copy of which is Ext.Ka-3. During the course of investigation, he took the bloodstained clothes of the injured into possession and the FARD (Ext.Ka-4) was prepared. He also inspected the place of occurrence and prepared the site-plan, which is Ext.Ka-5. The inspection note was also prepared which is Ext.Ka-6. He also recovered the bloodstained soil and plain soil from the place of occurrence and prepared the FARD which is Ext.Ka-7. During the course of investigation, he recorded the statement of the witnesses and after completing the investigation, he filed the charge sheet against the accused/appellants. That charge sheet is Ext.Ka-8. 16. P.W.5 is Chandrapal Singh, who has stated that on 11.5.1990 there was marriage of his sister. The accused/appellants are residents of his village. After the marriage, Umed Singh (P.W.2) and Mahipal Singh (P.W.3) had gone to return the Kadhai last time. When they were returning back the accused/appellants assaulted them. After hearing the noise, he reached there. The 9 accused/appellant Rajendra Singh was assaulting them with Sword and Shyam Singh was assaulting them with Chain. Gambhir Singh was having Danda in his hand. The accused/appellants had run away from there. Due to the injuries, Umed Singh and Mahipal Singh had fallen down. He brought the injured to house. After that Mahipal Singh and Umed Singh were taken to hospital. 17. After that the statement of the accused/appellants were recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to each of them in question form, who have denied the allegations made against them. In reply to questions, both of them have stated that they have been falsely implicated in the case due to enmity. In defence, they have not filed anything, as documentary evidence. However, in oral evidence, D.W.1 Gulab Singh was examined. 18. D.W.1 is Gulab Singh, who has stated that he, Umed Singh and Mahipal Singh are of the same village and the accused/appellants are also of the same village. He has a ration shop in the village and the Panchayat utensils remained kept in his shop. Utensils which were used in the house of Mahipal Singh for marriage were supplied from his shop. On 11.5.1990 at about 6:00 P:M they had come to return the utensils. They had come through a footway. He further stated that the person who comes from footway is clearly visible from his shop. The width of the footway is about half to one metre. He further stated that Umed Singh and Mahipal Singh had come to return Kadhai last time. Both of them were drunk at that time and were abusing the accused/appellant Shyam Singh. They were not in their senses. He further stated that when they were coming to return the utensils then Mahipal Singh fell down in the 10 pit (Khud) and Umed Singh fell down on the footway. During the investigation of the case, the Patwari had called him and his son Digamber and had recorded their statements. He further stated that when the injured fell then nobody was there. After that he stated that he (Gulab Singh), Shyam Singh and his son were present there at that time when the injured fell. After that the injured Umed Singh and Mahipal Singh has gone back after returning the utensils. He has put sugar on the injury of Mahipal Singh. He further stated that Shyam Singh and his sons have not caused injuries to Mahipal Singh and Umed Singh. In the cross-examination, he has stated that he has no enmity with the Patwari but he could not say why the Patwari has not recorded his statement in the papers. 19. Learned counsel for the accused/appellants has argued that the prosecution has not proved the case beyond reasonable doubt against the accused/appellant Gambhir Singh as the Danda was shown in his hand while assaulting the injured Mahipal Singh and Umed Singh but in the injury reports Ext.Ka-9 and Ext.Ka-10 no such injury of Danda is found on the body of the injured. I find substance in the argument raised by learned counsel for the accused/appellants due to the reason that both the injured eyewitnesses Mahipal Singh, Umed Singh and other eyewitness Chandrapal Singh have stated in their statement that the accused/appellant Gambhir Singh has caused injuries to the injured with Danda but a perusal of the injury report shows that there is no such injury on the body of the injured which was caused by Danda. Hence, from this fact, presence of the accused/appellant Gambhir is doubtful at the place of occurrence and his participation in the said crime is also 11 doubtful. Thus, the prosecution is failed to prove the case against the accused/appellant Gambhir Singh u/s 324 r/w 34 I.P.C. 20. Learned counsel for the accused/appellants has further argued that the prosecution has not proved the case beyond reasonable doubt against the accused/appellant Rajendra Singh. I do not find substance in the argument raised by learned counsel for the accused/appellants as the injured Umed Singh (P.W.2) has stated in his statement that on 11.5.1990 there was marriage of his sister. After the function of marriage, he and Mahipal Singh had gone to return the Panchayat articles. When they were coming back after handing the articles, the accused/appellants assaulted them causing injuries to him and his brother. He has specifically stated in his statement that the accused/appellant Rajendra Singh has caused injuries to him and his brother Mahipal Singh with Sword. The statement of Umed Singh (P.W.2) gets corroboration from the statement of another injured eyewitness Mahipal Singh (P.W.3) and the eyewitness Chandrapal Singh (P.W.5). His statement is further corroborated from the injury reports Ext.Ka-9 and Ka-10 in which incised wound were found on the body of the injured at the time of medical examination which can easily be caused by Sword. Hence, the presence of the accused/appellant Rajendra Singh at the place of occurrence and his participation in the said crime is proved. Thus, the prosecution has successfully proved the case beyond reasonable doubt against the accused/appellant Rajendra Singh u/s 324 I.P.C. 21. Learned counsel for the accused/appellants has further argued that Gulab Singh (D.W.1) has stated 12 in his statement that the injuries were caused to the injured by fall in a pit (Khud) and the accused/appellants have not caused injuries to Mahipal Singh and Umed Singh. I do not find substance in the argument advanced by learned counsel for the accused/appellants as the injuries which were found on the body of the injured are incised wound which cannot be caused by fall in a pit (Khud). Even in the opinion of the doctor, as mentioned in the injury report, the injuries were caused by sharp object. Hence, the statement of Gulab Singh (D.W.1) is not tenable and is concocted one. 22. After considering the entire facts and circumstances of the case and hearing learned counsel for the parties, the prosecution has proved the case against the accused/appellant Rajendra Singh u/s 324 I.P.C. However, the prosecution has failed to prove the case beyond reasonable doubt against the accused/appellant Gambhir Singh u/s 324 r/w 34 I.P.C. and he is liable to be acquitted after giving benefit of doubt. 23. For the reasons recorded above, the appeal is partly allowed. The conviction of the accused/appellant Rajendra Singh u/s 324 I.P.C. and sentence of two years’ R.I., as awarded by the trial court, is confirmed. However, the conviction of the accused/appellant Gambhir Singh u/s 324 r/w 34 I.P.C. and sentence of two years’ R.I., is hereby set aside. The accused/appellant Gambhir Singh is acquitted of the charge levelled against him. (As far as, the appeal of accused/appellant Shyam Singh is concerned it is abated due to his death during the pendency of this appeal). 13 24. The accused/appellant Gambhir Singh is on bail. He need not to surrender. His bail bonds are cancelled and sureties are discharged. 25. Let the lower court record be sent back for compliance of the order forthwith. (Dharam Veer, J.) April 08, 2009 RG