RESERVED JUDGEMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No. 1407 of 2001 (Old No. 716/1996) Sanjay & Another .…. Appellants/Accused Versus State of U.P. …………… Respondent November 3, 2009 Mr. Lokendra Dobhal, Advocate for the appellants. Mr. M.A. Khan, Brief Holder for the State/respondent. HON’BLE DHARAM VEER, J. This appeal, preferred by the appellants u/s 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as CrPC), is directed against the judgment and order dated 11/15.4.1996 passed by the Additional Sessions Judge/Special Judge (E.C. Act), Dehradun in Sessions Trial No. 175 of 1991, State v. Khajan Singh & Ors., whereby learned Additional Sessions Judge has convicted the appellants/accused Sanjay and Bittu under Section 307 of Indian Penal Code, 1860 (for short, IPC) and sentenced each of them to undergo R.I. for five years. However, co-accused Khanjan Singh was acquitted of the charge levelled against him. 2. In brief, the prosecution case is that PW1 Janardan Prasad Tiwari lodged an FIR on 28.7.1991 at 10.15 pm in PS Raipur, District Dehradun with the averments that on that day i.e. on 28.7.1991 his brother-in-law Bachhi Ram Bhatt (PW3) and his nephew Tika Ram (PW4), son of Bachhi Ram Bhatt had come to his house and they were talking to each other. Meanwhile, when her daughter Km. Vineeta (PW2) had gone outside for urinating, appellants/accused Sanjay and Bittu, son of co-accused Khajan Singh (acquitted by the trial court), pelted stones on her, which hit her head and she cried. On hearing her 2 cries, when they came outside her daughter told him that sons of Khajan Singh pelted stones on her. When they were asked about it from the appellants/accused, they fled from there and returned back armed with khukhri along with their father Khajan Singh. Co-accused Khajan Singh (acquitted by the trial court) asked his sons to finish the day-to-day wrangle. Upon this, appellants/accused Sanjay and Bittu attacked his brother-in-law, nephew and his younger brother Chhota Ram, who had reached there later on hearing the noise, with khukhris with intention to kill them, in which they received serious injuries in their head and other parts of the body. His brother-in-law, younger brother and daughter were taken directly to the hospital, whereas he along with his nephew Tika Ram Bhatt had gone to lodge the report in the police station. 3. With the aforesaid averments, FIR Ex. Ka-1 was lodged by PW1 Janardan Prasad Tiwari. On the basis of this report Ex. Ka-1, Chick FIR Ex. Ka-12 was prepared by Head Moharrir Samarpal on 28.7.1991 at 10.15 pm. Necessary entries were also made by him in the GD. Copy of the GD is Ex. Ka-13. The investigation of this case was entrusted to PW7 S.I. Veerpal Singh. The injured Bachhi Ram Bhatt (PW3) was medically examined by PW5 Dr. V.P. Mishra on 28.7.1991 at 11.15 pm and the injury report Ex. Ka-2 was also prepared by him. Injured Tika Ram Bhatt (PW4) was also medically examined by him on the same day at 10.40 pm and injury report Ex. Ka-3 was prepared by him. He also medically examined Chhota Ram on the same day at 11.45 pm and prepared his medical report Ex. Ka-4. Km. Vineeta (PW2) was also medically examined by him at 12.05 am on 29.7.1991 and medical report Ex. Ka-5 was prepared. Hemlata Tiwari was also medically examined by the same medical officer on 29.7.1991 at 12.20 am and her medical report is Ex. Ka-6. 3 Bachhi Ram Bhatt and Tika Ram Bhatt were also x-rayed and their x-ray report Ex. Ka-7 and Ka-8 respectively were prepared by PW6 Dr. P.K. Nautiyal. During the course of investigation, the I.O. inspected the place of occurrence and prepared the site plan Ex. Ka-9. During the course of investigation, the I.O. had taken into his possession the bloodstained clothes of Bachhi Ram Bhatt and Tika Ram Bhatt and prepared a fard Ex. Ka-10. During the course of investigation, the I.O. recorded the statements of the witnesses and after completing the investigation filed the chargesheet Ex. Ka-11 against the appellants/accused and the co-accused (acquitted by the trial court). 4. Learned Special Magistrate, CBI (1st), Dehradun after giving the necessary copies of the documents to the appellants/accused and the co-accused, as prescribed under Section 207 Cr.P.C., committed the case to the Court of Sessions on 19.11.1991. Learned Sessions Judge transferred the case to Additional Sessions Judge for its disposal according to law. 5. On 21.1.1992, learned Additional Sessions Judge, 4th, Dehradun framed the charge against the appellants/accused and the co-accused under Section 307 IPC. The charge was read over and explained to the each of appellants/accused and the co-accused (acquitted by the trial court), who pleaded not guilty and claimed to be tried. 6. To prove its case, the prosecution has examined PW1 Janardan Prasad Tiwari, the complainant and an eyewitness of the case; PW2 Km. Vineeta, injured witness; PW3 Bachhi Ram Bhatt, also an injured witness; PW4 Tika Ram Bhatt, another injured witness; PW5 Dr. V.P. Mishra, who medically examined all the injured and 4 prepared the medical reports; PW6 Dr. P.K. Nautiyal, Sr. Radiologist, who after conducting the x-ray prepared the report of Bachhi Ram Bhatt and Taka Ram Bhatt and PW7 S.I. Veerpal Singh, the I.O. of the case. 7. Thereafter, statements of the appellants/accused and the co-accused (acquitted by the trial court) were recorded under Section 313 of Cr.P.C. The oral and documentary evidence were put each of them in question form, who denied the allegations made against them and stated that they have been falsely implicated in the case. But they did not file any documentary evidence in defence. However, in the oral evidence, Amar Bahadur Thapa was examined as DW1. 8. After hearing learned counsel for the parties and after appreciating the evidence available on record, the learned Additional Sessions Judge/Special Judge (E.C. Act), Dehradun vide his judgment and order dated 11/15.4.1996 convicted and sentenced to the appellants/accused as discussed above. Against the aforesaid judgment and order dated 11/15.4.1996, the appellants/accused have preferred the present appeal. 9. I have heard learned Counsel for the parties and have carefully perused the materials available on the record. 10. Before any further discussion, it would be pertinent to mention here the medical reports of the injuries suffered by the PW3 Bachhi Ram Bhatt, PW4 Tika Ram Bhatt and PW2 Km. Vineeta as well as Chhota Ram and Hemlata Tiwari and the same are reproduced as under: 5 (A) Injury report Ex. Ka-2 of PW3 Bachhi Ram Bhatt, who was medically examined on 28.7.1991 at 11.15 pm by PW5 Dr. V.P.Mishra: “Injuries: (1) Incised wound 7 cm x 1 cm x brain on mid of head 13 cm above bridge of nose. Fresh bleeding present. (2) Incised wound 11 cm x 1 cm x bone deep on mid of head 7 cm above bridge of nose. (3) Incised wound 6 cm x 1 cm x bone deep on front of right knee joint. (4) Incised wound 2 cm x 0.25 cm x muscle deep on outer side right upper arm. 5 cm above right elbow joint. (5) Contusion 1 cm x 0.5 cm with swelling in area of 8 cm x 4 cm around it. On the back of right upper arm. 12 cm above right elbow joint. Opinion : Injury No. (1), (2), (3) (4) kept under observation. Injury No. (5) is simple. All injuries are fresh. Injury No. (5) may be caused by blunt object. Rest of the injuries may be caused by sharp edged weapon. Patient is admitted in ward. Advised X-ray Skull - AP, Lt. Knee Joint – AP, Lt.” (B) Injury report Ex. Ka-3 of PW4 Tika Ram Bhatt, who was medically examined on 28.7.1991 at 10.40 pm by PW5 Dr. V.P.Mishra: “Injuries: (1) Incised wound 7.5 cm x 1 cm x brain deep mid line head 9.5 cm above bridge of the nose. Underline skull bone is cut. Brain is seen through wound. (2) Incised wound 3.5 cm x 0.5 cm x muscle deep on left foot 2 cm behind Ist metatarsal phalanx joint. (3) Abraded contusion 8 cm x 4 cm on right side back of chest 3 cm away from mid line. 6 (4) Abraded contusion 9 cm x 3 cm on left upper arm 8 cm above left elbow joint. (5) Abrasion 4 cm x 0.25 cm on right upper arm 15 cm above right elbow joint. Opinion : Injury No. (1), (2), (3) kept under observation. Rest injuries are simple. May be caused by sharp edged weapon injury no. (1), (2). Injury No. 3, 4, 5 may be caused by blunt object. Advise X-ray skull, left foot, chest. Patient is admitted. Injuries are fresh.” (C) Injury report Ex. Ka-5 of PW2 Km. Vineeta, who was medically examined on 29.7.1991 at 12.05 am by PW5 Dr. V.P.Mishra: “Injury: (1) Lacerated wound 2 cm x 1 cm x muscle deep on the right side forehead just above right eyebrow. Fresh bleeding present. Opinion : Injury is simple, fresh, may be caused by blunt hard object.” (D) Injury report Ex. Ka-4 of Chhota Ram, who was medically examined on 28.7.1991 at 11.45 pm by PW5 Dr. V.P.Mishra: “Injuries: (1) Lacerated wound 3.5 cm x 0.5 cm x skin deep on left side face 5 cm rt. to left eye. Fresh bleeding present. (2) Lacerated wound 3 cm x 1 cm x skin deep on left side chest just below left clavicle : fresh bleeding present. Opinion : Injury are fresh, simple, may be caused by blunt object.” (E) Injury report Ex. Ka-6 of Hemlata Tiwari, who was medically examined on 29.7.1991 at 12.20 am by PW5 Dr. V.P.Mishra: 7 “Injuries: (1) Abrasion contusion 3.5 cm x 0.5 cm on right side front of neck 6 cm above right clavicle. (2) Contusion 8 cm x 4 cm on medial aspect and back of right elbow joint. Opinion : Injuries are simple, fresh, may be caused by blunt object.” 11. To prove the aforementioned medical reports of the injuries Ex. Ka-2, Ka-3, Ka-4, Ka-5 and Ka-6, the prosecution has examined PW5 Dr. V.P. Mishra, who has proved the same and has stated that on 28.7.1991 he was posted as Medical Officer in Coronation Hospital and he had prepared the aforesaid medical reports of the injuries after the medical examination of the aforesaid injured witnesses. He has further stated that all the injuries were fresh. 12. PW3 Bachhi Ram Bhatt and PW4 Tika Ram Bhatt were also x-rayed on the advice of PW5 Dr. V.P. Mishra and after their x-ray, the report Ex. Ka-7 and Ka-8 were prepared by PW6 Dr. P.K. Nautiyal, Sr. Radiologist and the same are reproduced as under: (A) X-ray report Ex. Ka-7 of Bachhi Ram Bhatt (PW3): “X-ray Skull – AP, Lat : Fracture left frontal bone of skull vault seen. X-ray Right Knee Joint – AP, Lat : No fracture seen.” (B) X-ray report Ex. Ka-8 of Tika Ram Bhatt (PW4): “X-ray Skull – AP, Lat : Fracture left frontal bone of skull seen. X-ray chest (AP) - : No bony pathology seen. No surgical emphysema. No ….(illegible) pathology seen. X-ray Left foot – AP, Lat : Fracture shaft upon 1/3rd Ist Metatarsal bone of Left foot.” 8 13. To prove the abovementioned reports, the prosecution has examined PW6 Dr. P.K. Nautiyal, who has proved the contents of the same and has stated that on 28.7.1991, he was posted as Senior Radiologist in Coronation Hospital. PW3 Bachhi Ram Bhatt and PW4 Tika Ram Bhatt were referred to him by Dr. V.P. Mishra (PW5) and he had conducted the x-ray on them and thereafter prepared the aforesaid reports Ex. Ka-7 and Ka- 8. He has further stated, that as per the x-ray report, fracture was found in left frontal bone of skull of both PW3 Bachhi Ram Bhatt and PW4 Tika Ram Bhatt. 14. To further prove its case, the prosecution has examined PW1 Janardan Prasad Tiwari, the complainant, who has stated that on 28.7.1991 at 9.30 pm, his brother- in-law Bachhi Ram Bhatt (PW3) and nephew Tika Ram Bhatt (PW4) were sitting in his house. At the same time, his daughter Km. Vineet (PW2) had gone outside for the bathroom. When she cried outside, he and his brother-in- law Bachhi Ram Bhatt and nephew Tika Ram Bhatt came outside the house, then they saw that blood was oozing out from the head of his daughter. He asked from his daughter as to what had happened. Then she said that son of Khajan Singh, whose name was Sanjay, had pelted stone on her. Then he asked from Sanjay, Bittu and Khajan Singh why they did like so. Then co-accused Khajan Singh (acquitted by the trial court) said that finish the wrangle today itself. Thereafter they had gone to their house and returned back with arms. Sanjay was armed with khukhri, Bittu was armed with sword and Khajan Singh was having danda in his hand. They assaulted Bachhi Ram Bhatt on his head with the khukhri. They also assaulted Tika Ram Bhatt on his head as well as on the other parts of the body. Thereafter his brother Chhota Ram reached there on hearing the noise, then the 9 appellants/accused also assaulted his brother. His sister- in-law Hemlata Tiwari had also reached at the place of occurrence and she was also assaulted by the appellants/accused. The place of occurrence was lighted with the bulbs and streetlight. The said incident happened outside his house. The FIR Ex. Ka-1 of the said incident was written and signed by him. Thereafter he along with Tika Ram Bhatt (PW4) went to the PS Raipur and lodged the report. From there, Tika Ram Bhatt was sent to the hospital along with police. Rest of the injured were taken to the hospital directly from the place of occurrence by some villagers. This witness has identified the appellants/accused in the trial court who were present at that time. This witness was cross-examined at length by the defence counsel, but nothing has come out which may create any doubt about his statement. 15. PW2 Km. Vineeta has stated that on 28.7.1991 at 9.30 pm, she had gone outside the house for the bathroom, where she saw the appellants/accused Sanjay & Bittu and the co-accused Khajan Singh (acquitted bythe trial court). Appellants/accused Bittu and Sanjay were armed with the khukhri and Khajan Singh was having danda. She saw them in the light of bulb. Appellant/accused no. 1 Sanjay threw stone on her which hit her head and blood had oozed out from the injury. At the time of incident, her maternal uncle Bachhi Ram Bhatt (PW3), brother Tika Ram Bhatt (PW4) and her father Janardan Prasad Tiwari (PW1) were present in the house, who came outside when she cried after being hit by the stone. They asked from the appellants/accused as to what was going on. Upon this, the appellants/accused stated that they would finish the story today itself. She had told her family members that appellant/accused no. 1 Sanjay had thrown stone on her. Appellants/accused assaulted 10 her maternal uncle Bachhi Ram Bhatt and Tika Ram Bhatt with the khukhri and danda. Her mother had locked her and her father inside the room. Appellants/accused tried to break open the door. When the appellants/accused were trying to break open the door, her uncle Sita Ram Tiwari, Chhota Ram Tiwari and her aunt Hemlata Tiwari had reached there. The appellants/accused also assaulted all these three people. Thereafter, her father along with Tika Ram Bhatt had gone to lodge the report, whereas other injured including her were taken to the hospital. All the injured were medically examined. This witness was cross-examined at length, but she could not be shaken in her cross-examination. 16. PW3 Bachhi Ram Bhatt has stated that on 28.7.1991 at 9.30 pm, he was watching television in the house of his brother-in-law Janardan Prasad Tiwari (PW1). His son Tika Ram Bhatt (PW4) was also present there. At that time, Km. Vineeta (PW2), daughter of Janardan Prasad Tiwari, had gone outside for the bathroom, who shouted very loudly. On hearing the noise, he, his son Tika Ram Bhatt, Janardan Prasad Tiwari and Chhota Ram rushed outside and they saw that blood was oozing out from the head of Km. Vineeta. Appellants/accused Sanjay & Bittu and the co-accused Khajan Singh (acquitted by the trial court) were present there. Khajan Singh told to finish the day-to-day wrangle. On this, Sanjay and Bittu returned from their house armed with the khukhri. Khajan Singh was having danda in his hand. Appellant/accused no. 2 Bittu hit him on his head and knee with the khukhri. Appellant/accused no. 1 Sanjay hit him in his head with a khukhri. When he fell down, Khajan Singh beaten him with the danda. Thereafter, all the three assaulted his son Tika Ram Bhatt (PW4). They also assaulted Chhota Ram who sustained minor injuries and he run away from there. 11 This witness has further stated that he was saved by Janardan Prasad Tiwari, Km. Vineeta and Chhota Ram. Electric bulb was on in the house of Janardan Prasad Tiwari and the streetlight in front of the gate of the said house was also on. He saw the said incident in this light. Janardan Prasad Tiwari and Tika Ram Bhatt had gone to lodge the report. He was taken to the Coronation Hospital from the place of occurrence where he was medically examined. His bloodstained clothes were taken into possession by the I.O. of the case, who had also prepared a fard in this regard which was signed by him and he also identified his signature on the said fard. This witness was cross-examined at length, but nothing has come out which may create any doubt about his deposition. 17. PW4 Tika Ram Bhatt has stated that on 28.7.1991 at 9.30 pm, he was watching television in the house of his maternal uncle Janardan Prsad Tiwari (PW1). At that time, when Km. Vineeta (PW2) had gone outside for urinating, then son of Khajan Singh threw stone on her. Thereupon she shouted. He, his father and maternal uncle rushed outside on hearing her shout and saw that Khajan Singh, Bittu and Sanjay were present there. Khajan Singh said that these people have made much hue and cry and they would be finished today. Appellants/accused Sanjay and Bittu brought Khukhri. Khajan Singh was having danda in his hand. Thereafter, they assaulted his father Bachhi Ram Bhatt (PW3) and also assaulted him. Appellant/accused no. 2 Bittu had hit him on his head and hand with the khukhri, whereas Khajan Singh had hit him on his leg with the danda. Hemlata, Chandra Prakash and Chhota Ram had come to save them, who were also assaulted by the appellants/accused. After assaulting them, the appellants/accused run away from there and went to their house. He was taken to the police station 12 Raipur by his maternal uncle Janjardan Prasad Tiwari where his maternal uncle wrote the report and lodged it. After that, police had taken him to the Coronation Hospital where he was given the treatment. His bloodstained banyan was taken into possession by the police in the hospital. This witness has identified the said banyan as material Ex. 3. 18. PW7 S.I. Veerpal Singh, the I.O. of the case has stated that on 28.7.1991 he was posted in PS Raipur as Sub-Inspector. Investigation of this case was entrusted to him. During the course of investigation, he recorded the statements of the witnesses and had arrested the appellants/accused and the co-accused, Khajan Singh (acquitted by the trial court). He also inspected the place of occurrence and prepared the site plan Ex. Ka-9 on the pointing out of the complainant Janardan Prasad Tiwari (PW1). He received the injury reports of the injured. On 24.8.1991, he had taken into the possession the bloodstained clothes of Bachhi Ram Bhatt (PW3) and Tika Ram Bhatt (PW4) and prepared the fard Ex. Ka-10. After completing the investigation, he filed the chargesheet Ex. Ka-11 against the appellants/accused and the co-accused (acquitted by the trial court). He has further stated that chick FIR Ex. Ka-12 was prepared by the Head Moharrir Samarpal. Necessary entries were also made by him in the GD, copy of GD is Ex. Ka-13. This witness has also proved the copy of GD Ex. Ka-14 and stated that it was also prepared by Head Moharrir Samarpal. He has identified the bloodstained trouser and banyan and stated that he had taken it from Bachhi Ram Bhatt (PW3). He also identified a Sandow banyan and stated that he had taken it from Tika Ram Bhatt (PW4). He has further stated that he could not get the blood spots from the place of 13 occurrence as it rained heavily on that day and the same was disclosed by him in the case dairy. 19. Thereafter, statements of the appellants/accused and the co-accused (acquitted by the trial court) were recorded under Section 313 of Cr.P.C. The oral and documentary evidence were put each of them in question form, who denied the allegations made against them and stated that they have been falsely implicated in the case. But they did not file any documentary evidence in defence. However, in the oral evidence, Amar Bahadur Thapa was examined as DW1, who has stated that the appellants/accused and the complainant Janardan Prasad Tiwari (PW1) were the resident of same mohalla and were known to him. He has further stated that in the month of July 1991, there was great terror of Kachha Banyan Gang in the area. He had also asked the then Gram Pradhan Surendra Singh Sajwan to enhance the police patrolling. Co-accused Khajan Singh (acquitted by the trial court), Gram Pradahn and some other villagers had visited the S.P. and had requested him for the security cover. He has further stated that on 28.7.1991 at 9.30 pm, he was lying in his house. He heard the noise of ‘bachao bachao’ coming from the house of Janardan Prasad Tiwari (PW1). On hearing the noise, he and other people of the mohalla came out of the house and as soon as they reached near the house of Menka, they saw that 4- 5 people came out from the house of Janardan Prasad Tiwari and ran away towards the forest. He has further stated that the appellants/accused present in the court were not among the persons who were running away. In his cross-examination, he has stated that he was not summoned by the court. Khajan Singh had met him today i.e. 27.3.1995, the date of his deposition, who asked him to depose in the court about the terror of Kachha Banyan 14 Gang and thereupon he came there for the evidence. He has further stated that he had not seen the said incident with his own eyes. 20. Learned Counsel for the appellants/accused argued that the prosecution has not proved the case against the appellants/accused beyond reasonable doubt for the offence punishable under Section 307 IPC. I do not find any substance in the argument of the learned Counsel for the appellants/accused for the following reasons: (i) That as per the evidence of PW3 Bachhi Ram Bhatt, brother-in-law of the complainant Janardan Prasad Tiwari (PW1), who has stated that on 28.7.1991 at 9.30 pm, he was watching television in the house of Janardan Prasad Tiwari. His son Tika Ram Bhatt (PW4) was also present there. At that time, Km. Vineeta (PW2), daughter of Janardan Prasad Tiwari, had gone outside for the bathroom, who shouted very loudly. On hearing the noise, he, his son Tika Ram Bhatt and Janardan Prasad Tiwari rushed outside and they saw that blood was oozing out from the head of Km. Vineeta. The appellants/accused Sanjay and Bittu and the co-accused Khajan Singh (acquitted by the trial court) were present there. Khajan Singh told to finish the day-to-day wrangle. On this, appellants/accused Sanjay and Bittu went to the house and returned from there armed