IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 548 of 2001 (Old No. 529 of 1992) 1. Gyana Nand, S/o Shri Rameshwar 2. Swanu Ram, S/o Shri Rameshwar 3. Prakash, S/o Gayana Nand 4. Prema Devi, W/o Shri Swanu Ram 5. Maya Devi, W/o Shri Gyana Nand All above resident of Village Jhakhani Patti Bhadura, P.O. Lamgaon Patwari Circle Pilanidhar Tehri/Pratap Nagar District Tehri Garhwal. …….Appellants. Versus State of U.P. ………Respondent. Shri Lokendra Dobhal, learned counsel for the appellants. Shri Harish Pujari, learned Additional Government Advocate, for the State. Coram: Hon’ble Prafulla C. Pant, J. Hon’ble Dharam Veer, J. Oral:- Hon’ble Prafulla C. Pant, J. This appeal, preferred under Section 374 of Code of Criminal Procedure, 1973 (herein after referred as Cr.P.C.), is directed against the judgment and order dated 24.02.1992, passed by learned Sessions Judge, Tehri Garhwal, in Sessions Trial No. 02 1988, whereby accused/appellants Gyana Nand, Swanu Ram, and Prakash, are convicted under Sections 147, 452, 323, read with Section 149 and 302 read with Section 149 of Indian Penal Code, 1860 (herein after referred as I.P.C.). And each one of the convicts is sentenced to undergo rigorous imprisonment for a period of six months under Section 147 I.P.C., rigorous imprisonment for a period of one year under Section 452 I.P.C., rigorous imprisonment for a period of three months under Section 323 read with Section 149 I.P.C., and imprisonment for life under Section 302 read with Section 149 I.P.C., and accused/appellants Prema Devi and Maya Devi are convicted under Sections 148, 452, 323 read with Section 149 I.P.C. and 302 read with Section 149 I.P.C. and each one of the two is sentenced to undergo rigorous imprisonment for a period of one year under Section 148 I.P.C., rigorous imprisonment for a period of one year under Section 452 I.P.C., rigorous imprisonment for a period of three months under Section 323 read with 149 I.P.C. and imprisonment for life under Section 302 read with Section 149 I.P.C. 2. Heard learned counsel for the parties and perused the lower court record. 3. Prosecution story in brief is that Bharat Ram (P.W. 1) after undergoing surgery of his eye in Tehri, on 02.06.1987, at about 6:00 p.m., returned to his Village Jakhni. On reaching home, he saw accused/appellants Gyananand, Swanu Ram, Prakash, Maya and Prema were quarrelling with Bimla and Bharti, on which Laxmi Prasad (deceased and son of Bharat Ram) asked the accused to keep quiet. On this, accused/appellants started beating Laxmi Prasad. Accused/appellant Gyananand had a stone in his hand, Swanu and Prakash were armed with Dandas (rods) while accused/appellants Prema and Maya were also armed with Daranti (sickle). All of them voluntarily caused hurt to Laxmi Prasad. When Laxmi Prasad entered in his house, Maya Devi, chased him and emasculated. Meanwhile, complainant Bharat Ram (P.W. 1) and his son Lakhpati (P.W. 2) intervened and they too received injuries in the incident. Both the parties exchanged stones and consequently, in the incident accused/appellant Prema Devi, Maya Devi and Prakash also sustained injuries. Thereafter Dwarika Prasad (P.W. 5) and Kashi Ram (P.W. 7) also came and the accused/appellants left the place and ran away. Laxmi Prasad succumbed to the injuries within ½ an hour. Next day morning i.e. 03.06.1987, Bharat Ram (P.W. 1) went to Patwari to report the incident but he was not found there. Thereafter they went to P.S. Tehri. However, they were directed by the police to go to Tehsil (In certain interior areas of Uttarakhand, Revenue Officials are given police powers). On this, between 10:00 –11:00 a.m., Bharat Ram got the report (Ext. A-1) written and handed it over to Supervisory Kanoongo. Deep Chand Sah (P.W. 8), Supervisory Kanoongo took the First Information Report, prepared check report (Ext. A-8) and also made necessary entry in the general diary, extract of which is Ext. A-9. Thereafter, he investigated the crime. He went to the spot and inspected the site and prepared site plan (Ext. A-10). The Investigating Officer took the dead body of Laxmi Prasad in his possession and prepared inquest report (Ext. A-11) and other necessary papers, sketch of the dead body (Ext. A-12) and letter to Chief Medical Officer (Ext. A-13). He sent the dead body for post mortem examination. The Investigating Officer also took the blood stained stones (Ext. 1), blood stained lathi (Ext. 2), blood stained sickle (Ext. 3), blood stained soil (Ext. 4) and simple soil (Ext. 5) from the place of incident and prepared memorandum (Ext. A- 15). He recovered sickle, used in the crime from the house of accused/appellant Swanu Ram and prepared memorandum (Ext. A-16). Meanwhile, on 03.06.1987, Dr. Narendra Jha (P.W. 4) examined the injuries on the person of Lakhpati (P.W. 2), Bharat Ram (P.W. 1), and prepared the injury reports (Ext. A-3 and Ext. A-4). On 04.06.1987, at 12:15 p.m. Dr. J.P. Chamoli (P.W. 6) conducted post mortem examination on dead body of Laxmi Prasad and prepared autopsy report (Ext. A-2) and opined that the deceased has died of syncope due to shock on account of haemorrhage from the wounds. This Medical Officer on that day also examined injuries of accused/appellants Prakash, Maya and Prema and prepared injury reports (Ext. A-5, Ext. A-6 and Ext. A- 7). On completion of investigation, P.W. 8 Deep Chand Sah, Supervisory Kanoongo, Investigating Officer submitted charge sheet (Ext. A-17) against all the five accused, for their trial in respect of offences punishable under Sections 147, 325, 302, 452 and 120 B I.P.C. 4. The Chief Judicial Magistrate, on receipt of charge sheet, after giving necessary copies to the accused, as required under Section 207 Cr.P.C., appears to have committed the case to the court of Sessions for trial. The Magistrate got sent the blood stained materials, collected by the Investigating Officer for chemical examination report from where it was found that blood stained lathi, contained human blood. However, in the blood stained sickle and blood stained stones, stain of blood was found disintegrated. Learned Sessions Judge, on 19.01.1989, after hearing the parties, framed charge of offences punishable under Sections 147, 302 read with Section 149 and 452 I.P.C. against four accused namely Gyanannad, Swanu, Maya and Prakash. He framed separate charge against accused Prema Devi in respect of offences punishable under Section 148, 302 read with section 149 I.P.C., and 452 I.P.C. and an additional charge of offence punishable under Section 307 read with 149 I.P.C. On 30.09.1991, learned Sessions Judge, amended the charge as against Gyananand, Swanu Ram and Prakash and charged them in respect of offences punishable under Section 147 I.P.C. and 302 read with Section 149 I.P.C. As to Maya Devi, he amended the earlier charge and charged her under Sections 148, 302 read with 149, 452 and 307 read with Section 149 I.P.C. All the accused/appellants pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1 Bharat Ram (complainant and injured eye-witness), P.W. 2 Lakhpati (injured eye-witness), P.W. 3 Dr. J.P. Chamoli (who conducted autopsy on the dead body of Laxmi Prasad) [he is examined again as P.W. 6 to prove the injury reports of accused/appellants Prakash, Maya and Prema], P.W. 4 Dr. Narendra Jha (who examined injuries on the person of Lakhpati and Bharat Ram), P.W. 5 Dwarika Prasad (declared hostile), P.W. 7 Kashi Ram (declared hostile), and P.W. 8 Deep Chand Sah (Investigating Officer). The oral and documentary evidence was put to the accused under Section 313 Cr.P.C. in reply to which they alleged the same to be false and it is stated by them that they are falsely implicated due to enmity. However, no evidence in defence is adduced. The trial court after hearing the parties, found that the prosecution has successfully proved charge of offences punishable under Sections 147, 452, 323 and 302 read with 149 I.P.C. against accused Gyananand, Swanu Ram and Prakash. The trial court further found Prema Devi and Maya Devi guilty of charge of offences punishable under Sections 148, 452, 323 read with Section 149 I.P.C. and 302 read with Section 149 I.P.C. After hearing them on sentence, the trial court sentenced each of the convicts Gyananand, Swanu Ram and Prakash to undergo rigorous imprisonment for a period of six months under Section 147 I.P.C., rigorous imprisonment for a period of one year under Section 452 I.P.C., rigorous imprisonment for a period of three months under Section 323/149 I.P.C. and imprisonment for life under Section 302 read with 149 I.P.C. Each one of the other two convicts namely Prema Devi and Maya Devi are sentenced to undergo rigorous imprisonment for a period of one year under Section 148 I.P.C., rigorous imprisonment for a period of one year under Section 452 I.P.C., rigorous imprisonment for a period of three months under Section 323/149 I.P.C., and imprisonment for life under Section 302 read with Section 149 I.P.C. Aggrieved by said judgment and order dated 24.02.1992, passed by learned Sessions Judge, Tehri, is Sessions Trial No. 02 of 1988, this appeal was filed before Allahabad High Court by all the five convicts on 28.02.1992, where it was admitted on 23.03.1992. This appeal is received by transfer to this Court under Section 35 of U.P. Reorganisation Act, 2000, for its disposal. 5. Before further discussions, it is pertinent to mention here the ante mortem injuries found on the dead body of deceased. The autopsy report (Ext. A-2), prepared by Dr. J.P. Chamoli (P.W. 3) after the post mortem examination on the dead body of deceased Laxmi Prasad, shows following ante mortem injuries:- 1. Black eye on the right side, on dissection blood present in the subcutaneous plane. 2. Lacerated wound left lip 1cm X 1/4cm X muscle deep. Clots present in it with serum discharge. 3. Contusion involving left side jaws and neck angle of mandible 6cm X 4cm X blood present in the subcutaneous plane. 4. Lacerated wound 4cm X 2cm X bone deep on left side scalp 10 cm above left ear. 5. Lacerated wound 7cm X 2cm X bone deep on right side nape of neck. 5A. Incised wound on the left side of face 5cms X bone deep X 3cm. Margins clearcut. Oozing present. 6. Traumatic swelling of the scrotum on right side. On dissection the whole right testis is crushed and blood present in the scrotum. 7. Multiple abrasions on the back and both legs all over. Brown in colour. 8. Lacerated wound 8cm X 3cm X bone deep. Vessels crushed on the dorsum of the left ankle joint. 9. Multiple contused abrasions on the right side chest and abdomen 7 cm x 4cm. On dissection blood present under it. Apart from other injuries, Dr. J.P. Chamoli, has recorded fracture of middle and anterior cronial fossa present on its base. He has opined that the deceased has died of syncope due to haemorrhage from wounds. From the above mentioned injuries, shown in the autopsy report, which are proved by P.W. 3 Dr. J.P. Chamoli, it is clear that the deceased (Laxmi Prasad) has died homicidal death on 02.06.1987. Now this Court has to see whether the accused/appellants after forming unlawful assembly have caused death of deceased Laxmi Prasad, committed house tress pass and caused voluntarily hurt to Bharat Ram and Lakhpati or not. 6. P.W. 1 Bharat Ram, an injured eye-witness has stated that on 02.06.1987, at about 6:00 p.m. after undergoing surgery of his eye, in Tehri, he came back to his house along with his son Laxmi Prasad (deceased). He saw there that the accused/appellants Gyana Nand, Swanu Ram, Prakash, Maya and Prema, were hurling abuses at his wife Makhi Devi and daughter-in-law Bimla. On this, Laxmi Prasad intervened and tried to pacify them. But accused/appellants started beating with stones, danda (rod) and sickles. The witness further states that Gyananand, was armed with stone, Swanu and Prakash were armed with dandas, Prema and Maya were armed with darantis (sickles). They started giving blows with the weapons possessed by them at Laxmi Prasad. He further states that Maya Devi went thereafter over the roof of the house and took out a slate (used in hills to make roof), a kind of stone, and gave blow with that on head of Laxmi Prasad. She did not stop there and caught hold of testicles of Laxmi Prasad. Swanu gave blow with danda on the head of Laxmi Prasad. Other accused stoned Laxmi Prasad. According to P.W. 1 (Bharat Ram) when he along with his another son Lakhpati, tried to intervene them, they were also injured by accused/appellants. The witness further states that he along with his sons also threw stones at Prakash, Prema and Maya, who were also got injured in the incident. 7. P.W. 2 Lakhpati, another injured eye-witness has corroborated the prosecution story narrated by his father P.W. 1 Bharat Ram. Both these witnesses are injured and it is just and proper to mention the injuries found on their person by P.W. 4 Dr. Narendra Jha, who examined them on 03.06.1987 and prepared injury reports (Ext. A-3) and Ext. A-4). In these reports injuries are found on the person of Lakhpati and Bharat Ram are as under- Injuries found on the person of Lakhpati (P.W. 2):- 1. Contusion on head 20 cm from root of nose. 3cm X 2cm. 2. One lacerated wound on right side of nose 2.5cm x 1cm, 3cm below root of nose. 3. One contusion 4cm x 3cm on right side of back, 12 cm below acronion process. Injuries found on the person of Bharat Ram (P.W. 1):- 1. One contusion 4cm X 3cm on head, 3.5 cm above the base of skull. 2. One lacerated wound 1cm X 0.5cm over injury No. 1. 3. One contusion 5cm x 4cm on the left side of back, 10cm below angle of left scapula. 4. One contusion, 6cm x 5cm, 3cm below right elbow joint. 5. Multiple abrasions on anterolateral aspect of left leg. 6. Multiple abrasions in different directions on anteromedial aspect of right leg. All the injuries, of the above two injured were simple in nature except injury No. 4 regarding which advise for X-ray was given. Injuries found on the person of the above two eye-witnesses, makes their testimony trustworthy as they have themselves received injuries in the incident. Narration of the prosecution story made by them is natural and reliable. Truthfulness of the prosecution story gets further corroboration from the injuries found on the person of three accused/appellants by P.W. 3 Dr. J.P. Chamoli, who prepared injury reports (Ext. A-5, Ext. A-6 and Ext. A-7) on 04.06.1987, after examining them. The injuries of the three accused/appellants are being reproduced below:- Injuries found on the person of accused/appellant Prakash:- 1. Lacerated wound on the left side of forehead above the left eyebrow. Wound is obliquely placed. Size 7cm x 2cm X muscle deep. 2. Abraded contusion 2cm X 2cm in diameter on the right shoulder on back above 4cm lateral to midline. Brown in colour. 3. Complaint of pain in left side neck. No mark of injuries seen. Injuries found on the person of accused/appellant Maya:- 1. Multiple contused abrasion on the right side face measuring 2cm X 1cm each. Brown in colour. Scab formation in progress. 2. Abrasions on the left side jaw on the lower edge. Size 3cms X 1cm. Brown in colour, scab formation in progress. 3. Abrasion on the right shoulder on top 1cm X 2cm. Brown in colour. 4. Multiple abrasions on the chest below right clavicle and the sternal notch. Size 3cm X 2cm. Brown in colour. 5. Multiple abrasions on the right knee joint, in area of 5cm X 6cm on the dorsum. Brown in colour, scab formation in progress. Injuries found on the person of accused/appellant Prema Devi:- 1. There is slight swelling on the outer side of the left forearm in the middle. Advised X-ray. Aforesaid injuries, which were recorded after two days of the incident, suggest that marpeet has taken place between the parties. Going through eye-witness account given by P.W. 1 Bharat Ram and P.W. 2 Lakhpati, both eye-witnesses, which gets corroborated from the injuries mentioned above and the ante mortem injuries on the dead body of deceased, we are of the view that it leaves no room of doubt that all the five accused/appellants Gyananand, Swanu Ram, Prakash, Prema Devi and Maya Devi, formed an unlawful assembly and after committing rioting, trespassed the house of Bharat Ram. All of them caused injuries on the person of deceased Laxmi Prasad, and thereafter there was fight between the two sides and accused/appellants voluntarily caused hurt to Bharat Ram and his another son Lakhpati. It is also proved on record that the accused/appellants Maya Devi, Prema Devi and Prakash also received injuries due to stoning. 8. Shri Lokendra Dobhal, learned counsel for the appellants argued that even if prosecution story is believed, it is a case of sudden fight and there is no intention on the part of accused/appellants to commit murder of Laxmi Prasad. Injuries are also on both the sides. On its basis it is contended that even if the witnesses examined by prosecution are relied the act on the part of accused constituted culpable homicide not amounting to murder, punishable under Section 304 I.P.C. and not one punishable under Section 302 I.P.C. We have examined the evidence on record with a close scrutiny and found that there was no motive on the part of accused/appellants to commit murder of Laxmi Prasad. It has come on record through P.W.2 Lakhpati, who has stated in his cross examination that cause of dispute was a cock of the complainant’s family, who entered in the house of the accused/appellants where after hurling of abuses started. P.W. 7 Kashi Ram has also corroborated the said cause of dispute. Exception 4 to Section 300 I.P.C., provides that culpable homicide is not murder if it is committed without premeditation in a sudden fight in a heat of passion upon a sudden quarrel without the offender’s having taken undue advantage or acted in a cruel or unusual manner. The explanation to Exception 4 to Section 300, further provides that it is immaterial in such cases which party offers the provocation or commits the first assault. 9. In view of the fact that there was no motive of commission of crime on the part of accused/appellants, the fight between the parties is sudden on account of the cock of the complainant’s side went inside the house of accused/appellants where upon hurling abuses and stoning between them started, this Court agrees with the submission of learned counsel for the appellants that the action on the part of the accused/appellants in causing death of Laxmi Prasad amounts to culpable homicide not amounting to murder, which is punishable under Section 304 I.P.C. and not the one punishable under section 302 I.P.C. However, as to the rest of the offences with regard to which the trial court has recorded the conviction on sentence, the same does not require any interference. 10. For the reasons as discussed above, this appeal deserves to be partly allowed. The appeal is partly allowed. The conviction and sentences awarded against the accused/appellants-Gyananand, Swanu Ram, Prakash, Prema Devi and Maya Devi, in respect of offence punishable under Section 302 read with Section 149 I.P.C. is set aside. Instead each one of them is convicted under Section 304 Para-2 I.P.C. and sentenced to undergo rigorous imprisonment for a period of five years. Conviction and sentence recorded in respect of other offences i.e. under Sections 147, 148, 452, 323/149 I.P.C. are affirmed. The sentences shall run concurrently and the period already undergone shall be set off. The accused/appellants are on bail. Their bail is cancelled. Send the lower court record back to the trial court for making the accused/appellants to serve out the sentence, awarded against them, as modified by this Court. (Dharam Veer, J.)(Prafulla C. Pant, J.) Dt. 09.04.2008 Sweta