IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Court’s order whether the case is or not approved for reporting (Chapter VIII, Rule 32(2)(b) Description of the Case. Criminal Appeal No. 159 of 2002 Date of decision :- 04.03.2008 A.F.R. (Approved for Reporting) Not approved for Reporting Initials of Judge Date: 04.03.2008 Note:- Bench Reader will attach this at the top of first page of the judgment when it is put up before the Judge for signature. HIGH COURT OF UTTARAKHAND, AT NAINITAL Criminal Appeal No. 159 of 2002 1. Girbir Singh s/o Shri Surendra Pal Singh Parmar Joshiyara P.S. Kotwali District Uttarkashi R/o village Thati, Patti Dhanari Tehsil Dunda, District Uttarkashi 2. Surendra Singh Rawat s/o Shri Pancham Singh Rawat Gopal Cloths House, Main Bazar P.S. Kotwali, Uttarkashi R/o Dhungalgaon, Patti Dhanari Tehsil Dunda District Uttarkashi ..… Appellant Versus State …..Respondent Dated :- 04th March, 2008 Mr. Vinod Sharma, Advocate for the appellants. Mr. Nandan Arya, A.G.A. assisted by Mr. Harish Chandra Poojari, Addl. Government Advocate for respondent-State. Hon’ble J.C.S. Rawat, J. This criminal appeal has been filed against the judgment & order dated 24.06.2002 passed by Mr. Bharosi Lal, the then Sessions Judge, District Uttakashi in STNo.6/1999, whereby the appellants were convicted and each of the appellants were sentenced to undergo R.I. for two months and for six months under sections 147 IPC and section 332 read with section 149 IPC. 2. The facts, in nutshell, are that on 20.01.1999 at about 10p.m. the appellants alongwith 10-12 co- accused came at the police station Kotwali, District Uttarkashi. At that time, Constable Raghubir Singh PW1 was on the guard duty in the police station. Head Constable Padam Singh and Constable Navin Chandra PW3 were busy in the official duty in the police station. The appellants alongwith 10-12 other persons entered in the compounded of police station, started assaulting Constable Raghuvir Singh and tried to snatch rifle from him. Another Constable Rajendra Pal Singh PW2 tried to rescue Constable Raghubir Singh PW1 but accused persons also belaboured him and appellant Girbir Singh kicked to his private part of the body. Hearing hue and cry, complainant Head Constable Padam Singh and Constable Navin Chand PW3 came to the gate of police station. The accused persons started pelting stones on the police personnel. Girbir Singh appellant pelted stones upon H.C. – Padam Singh due to which Padam Singh sustained injury on his head. When S.I. Pradeep Kumar, Station Incharge, who was busy in maintaining law and order in Magh Mela, received the information about the incident he immediately rushed to the police station and arrested the appellants at the spot with the help of police personnel. Thereafter, Head Constable Padam Singh lodged a written report Ex.ka.8 at the police station at 10:30pm on the same day. Thereafter, the matter was investigated by the I.O. and he recorded the statement of the witnesses as well as he visited the spot. After completing the investigation, the Investigating Officer submitted the chargesheet before the court against the appellants. 3. After submission of chargesheet the appellants- accused were committed to the court of Sessions for trial and the trial court framed charges against the accused persons. They denied the charges levelled against them and claimed their trial. 4. The prosecution in support of its case examined six witnesses. The prosecution has adduced the evidence of Constable Raghuvir Singh PW1, who was on the guard duty in the police station on the date of incident. He was assaulted by the appellants in the incident. Constable Rajendra Pal Singh PW2 – an injured witness of the incident and Constable Navin Chandra PW3 are also witnesses of fact. They narrated the entire prosecution story in their statements. Dr. A. K. Verma PW4 is the medical officer, who medically examined injured H.C.-Padam Singh and Rajendra Pal Singh on the date of occurrence. S.I. – Pradeep Kumar PW5 was posted as Incharge of police station Kotwali, Uttarkashi. He also supported the prosecution story. S.I. – Punnoo Ram PW6 is the Investigating Officer of this case and he submitted the chargesheet against the accused persons. 5. The accused persons were examined u/s 313 Cr.P.C. and they have pleaded not guilty to the offences. They have has stated that they have been falsely implicated in this case. 6. The accused-appellants in the trial eventually were convicted and sentenced by the trial court as mentioned above. 7. I have heard learned counsel for the parties and perused the record carefully. 8. At the outset, it needs to be mentioned here that it is not disputed that injured H.C.-Padam Singh and Rajendra Pal Singh PW2 received injuries on their person on 20.01.1999 at about 10pm. This fact is further established by the evidence of Dr. A. K. Verma PW4, who medically examined injured H.C. – Padam Singh on the date of occurrence at 11:40pm and found following injuries on his person:- (i) A lacerated wound measuring 3cm x 0.5cm parallel to right eye brow. (ii) A contusion 1cm x 0.2cm just below right eye. (iii) A small lacerated wound 0.5cm x 2cm over front of nose, skin deep. (iv) Right eye has become black. 9. Dr. A.K. Verma PW4 also examined injured Rajendra Pal Singh PW2 on the date of occurrence at 11:45pm and found following injuries on his person:- (i) Complaint of pain and tenderness over the left chest. There was no swelling. (ii) Complaint of pain and tenderness over abdomen around the umbilicus. (iii) Complaint of pain and tenderness over left side of the head above the left ear. The Medical Officer opined that the injuries were fresh and simple in nature caused by blunt object. These injuries could be caused by any blunt weapon. He also proved his reports prepared by him. He has further opined that the injuries on the person of Padam Singh could be caused by a stone or by blunt object. He has further established that these injuries could be caused on 20.01.1999 at about 10p.m. in the night. The evidence of Rabhuvir Singh PW1 and Constable Rajendra Pal Singh PW2 further establishes that they received injuries on 20.01.1999 at about 10 pm. Thus, it is amply established that the injured persons have received injuries on the date of incident. 10. Now, I have to consider who was the author of the injuries on the person of H.C.-Padam Singh and Rajendra Pal Singh PW2. There is direct evidence connecting the appellants-accused with the offence charged. The prosecution has adduced the evidence of Rabhuvir Singh PW1, who has stated in his evidence that on 20.01.1999 at about 10pm in the night Magh Mela was in full-swing. S.I. Pradeep Kumar, Incharge of the police station and other members of the police force were busy in maintaining law and order in Magh Mela. Raghuvir Singh PW1 has further stated that the appellants alongwith 10-12 co-accused persons came to the police station from the side of Magh Mela and started assaulting him and tried to snatch rifle from his possession. He has further stated in his evidence that on hearing the cry, Constable Rajendra Pal Singh PW2 who was also present in the police station tried to rescue him. The appellants and their associates tried to belabor the Constable Rajendra Pal Singh PW2 and kicked him on his private part due to which he sustained injury. Meanwhile, Head Constable Padam Singh came there and tried to pacify the situation, but he was also made the victim of stones pelted by Girbir Singh appellant. He sustained injury on his head. The prosecution in support its case also examined injured witness Constable Rajendra Pal Singh PW2, who has narrated the entire incident and corroborated the evidence of Rabhuvir Singh PW1 on all material points. The presence of Constable Rajendra Pal Singh PW2 cannot be discarded as he also received injury in the incident. The presence of this witness at the relevant time was explained and his evidence cannot be thrown out as unreliable or tainted. The injured witness stands on a higher pedestal than ordinary eye witness. It is also well settled that the testimony of the injured eye- witness is sufficient to base the conviction and no further corroboration is required. His testimony is credible and cogent. The presence of the injured witness cannot be ruled out. The testimony of an injured witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence lends support to his testimony that the witness was present during the occurrence. {Vide Narendra Nath Khaware Vs. Parasnath Khaware and others 2003 SCC (Crl) 1144 and State of U.P. Vs. Kishan Chand and others 2004 SCC (Cri) 2013}. It has come in the evidence that when S.I. – Pradeep Kumar (PW5), Incharge Police Station heard about the incident he immediately came to rescue the police personnel. When he reached at the spot he found that the appellants alongwith other co-accused were causing scuffle with the constables. He immediately tried to disperse the mob with the help of police personnel and got success in arresting both the appellants. Thereafter, the co-accused persons ran away from the spot. Thus, the evidence of Pradeep Kumar PW5 is also relevant because he immediately reached at the spot and arrested the appellants. He saw the injured police personnel at the police station. Thus, the evidence of Pradeep Kumar PW5 also corroborates the factum of incident in the police station. 11. Learned counsel for the appellants contended that if the appellants and their associates had come to the police station and they tried to snatch rifle from a policeman they would have snatched rifle and would have fled away with rifle from the spot. Learned A.G.A. refuted the contention. It is pertinent to mention here that the policeman who remains on the guard duty keeps a safety chain for the rifle and the safety chain is attached with the belt of the policeman. It is not possible to snatch the rifle from the policeman. The presence of the appellants at the spot is further proved by the injuries on the person of Rajendra Pal Singh PW2 and the spot arrest of the appellants. I do not find any force in the contention raised by the learned counsel for the appellants. 12. It was further contended on behalf of the appellants that the FIR was lodged against the appellants only and co-persons were not named in the FIR, as such, the offences punishable under section 147 and section 332 read with 149 IPC are not made out. Learned A.G.A. refuted the contention and contended that the FIR itself contains that there were 10-12 persons alongwith the appellants. Perusal of the record reveals that the FIR itself contains in the column of the accused that two named appellants and 10-12 unidentified persons participated in the incident. The evidence of Rabhuvir Singh PW1 and Constable Rajendra Pal Singh PW2 further establishes that the appellants alongwith 10-12 persons came at the police station and started belabouring the police personnel and tried to snatch the rifle from a policeman and they had a common object to cause injuries to the police personnel. For the purpose of attracting section 149 IPC, it is not necessary that there should be a pre- concert by way of a meeting of the persons of the unlawful assembly as to the common object. If a common object is adopted by all the persons and shared by them, it would serve the purpose. In the case of Bishna Vs. State of W.B. 2006(1) SCC(Cri) 696 has held that :- “63.Mizaji v. State of U.P. 1959 Cri. L.J. 777 it was observed: “Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under Section 149 if it can be held that the offence was such as the members knew was likely to be committed. The expression ‘know’ does not mean a mere possibility, such as might or might not happen. For instance, it is a matter of common knowledge that when in a village a body of heavily armed men set out to take a woman by force, someone is likely to be killed and all the members of the unlawful assembly must be aware of that likelihood and would be guilty under the second part of Section 149. Similarly, if a body of persons go armed to take forcible possession of the land, it would be equally right to say that they have the knowledge that murder is likely to be committed if the circumstances as to the weapons carried and other conduct of the members of the unlawful assembly clearly point to such knowledge on the part of them all”. In Masalti V. State of U.P., AIR 1965 SC 202, it was held:- “17. ……………………………..What has to be proved against a person who is alleged to be a member of an unlawful assembly is that he was one of the persons constituting the assembly and he entertained along with the other members of the assembly the common object as defined by Section 141 IPC. Section 142 provides that whoever, being aware of facts which render any assembly an unlawful assembly, intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly. In other words, an assembly of fiv e or more persona actuated by, and entertaining one or more of the common objects specified by the five clauses of Section 141, is an unlawful assembly. The crucial question to determine in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects as specified by Section 141. While determining this question, it becomes relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly. ………………………….” 13. In fact, Section 149 makes it clear that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence; and that emphatically brings out the principle that the punishment prescribed by Section 149 is in a sense vicarious and does not always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly. 14. The Hon’ble Supreme Court in Bhajan Singh v. State of U.P. 1974 SCC (Cri) 604:- “13. Section 149 IPC constitutes, per se, a substantive offence although the punishment is under the section to which it is tagged being committed by the principal offender in the unlawful assembly, known or unknown. Even assuming that the unlawful assembly was formed originally only to beat, it is clearly established in the evidence that the said object is well knit with what followed as the dangerous finale or, call it, the beating. This is not a case where something foreign or unknown to the object has taken place all of a sudden. It is the execution of the same common object which assumed the fearful character implicit in the illegal action undertaken by the five accused.”. The purpose for which the members of the assembly set out or desired to achieve is the object. If the object desired by all the members is the same, the knowledge that that is the object which is being pursued is shared by all the members and they are in general agreement as to how it is to be achieved and that is now the common object of the assembly. 15. Section 149 IPC consists of two parts. The first part of the section means that the offence to be committed in prosecution of the common object must be one which is committed with a view to accomplish the common object. In order that the offence may fall within the first part, the offence must be connected immediately with the common object of the unlawful assembly of which the accused was a member. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under Section 141, if it can be held that the offence was such as the members knew was likely to be committed and this is what is required in the second part of the section. The purpose for which the members of the assembly set out or desired to achieve is the object. If the object desired by all the members is the same, the knowledge that is the object which is being perused is shared by all the members and they are in general agreement as to how it is to be achieved and that is now the common object of the assembly. An object is entertained in the human mind, and it being merely a mental attitude, no direct evidence can be available and, like intention, has generally to be gathered from the act which the person commits and the result therefrom. When an offence is committed in prosecution of the common object, it would generally be an offence which the members of the unlawful assembly knew was likely to be committed in prosecution of the common object. 16. The Hon’ble Supreme Court has observed in the case of Masalti Supra, which is as follows:- “15. Then it is urged that the evidence given by the witnesses conforms to the same uniform pattern and since no specific part is assigned to all the assailants, that evidence should not have been accepted. This criticism again is not well founded. Where a crowd of assailants who are members of an unlawful assembly proceeds to commit an offence of murder in pursuance of the common object of the unlawful assembly, it is often not possible for witnesses to describe accurately the part played by each one of the assailants. Besides, if a large crowd of persons armed with weapons assaults the intended victims, it may not be necessary that all of them have to take part in the actual assault. In the present case, for instance, several weapons were carried by different members of the unlawful assembly, but it appears that the guns were used and that was enough to kill 5 persons. In such a case, it would be unreasonable to contend that because the other weapons carried by the members of the unlawful assembly were not used, the story in regard to the said weapons itself should be rejected. Appreciation of evidence in such a complex case is no doubt a difficult task; but criminal courts have to do their best in dealing with such cases and it is their duty to shift the evidence carefully and decide which part of it is true and which is not.” 16. ……………… 17. …………………….. Section 149 makes it clear that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence; and that emphatically brings out the principle that the punishment prescribed by Section 149 is in a sense vicarious and does not always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly…………………………” 17. The above decision was also followed in the decisions of the Hon’ble Apex Court in Charan Singh & others Vs. State of U.P. 2004(4) SCC 205, Ram Dular Rai Vs. State of Bihar 2003(12) SCC 352 and Bishna Vs. State of W.B. 2006(1) SCC(Cri) 696. 18. In the facts and circumstances of the present case, I can safely hold that the appellants and their associates had a common object to cause injury on the police personnel. The appellants and their associates in furtherance of the said common object belaboured the police personnel due to which some of the police personnel sustained injuries on their persons. I have been taken through the evidence and cross examination of the witnesses by the learned counsel for the appellants. it is established that the appellants alongwith other persons came to the police station with a common object to cause the injuries on the police personnel. It is evident from the prosecution evidence that both the appellants were present at the spot. It cannot be concluded from the prosecution evidence or from any probability arising from the record that the appellants had been falsely implicated in the case. After going through the evidence on record, I do not find any reason to disbelieve the version of the prosecution witnesses. I am completely in agreement with the findings recorded by the trial court in this regard. 19. Learned counsel for the appellants further contended that there are contradictions and exaggerations in the testimony of the prosecution witnesses. Learned counsel for the appellants-accused tried to point out certain contradictions in the testimony of the witnesses. Learned A.G.A. refuted the contention. I have gone through the entire evidence and I am of the view that the contradictions pointed out from the evidence of the prosecution witnesses were not material to discredit the testimony of the witnesses. A person cannot accurately recall a conversation and reproduce the very words used by him or heard by him. It is unrealistic to expect a witness to be a human tape- recorder. The witness cannot be expected to pose a photographic memory and to recall the details of an incident. If the contradictions are there it does not affect the prosecution story, the courts should not take into account such minor discrepancies, which are bound to come in the truthful testimonies. The normal discrepancies in evidence are those which are due to normal errors of observations, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. The discrepancy as pointed out by the defence is of no consequence. We have gone through the entire evidence and the contradictions pointed out by the learned counsel for the appellants. 20. It was further contended on behalf of the appellants that H.C.-Padam Singh was not produced before the trial court as he was injured witness in the incident. Learned A.G.A. refuted the contention. It is true that H.C.-Padam Singh was not produced before the trial court. Perusal of the record reveals that the learned Sessions Judge issued bailable warrants against Padam Singh and proceeded under section 350 Cr.P.C. but his attendance could not be procured. The prosecution could not adduce his evidence before the trial court. It is pertinent to mention here that the appellants were charged under section 307 IPC also. The trial court while appreciating the evidence has found that the offence punishable under section 307 IPC was not proved. The incident has been proved by the other witnesses. It cannot be said that the non- production of H.C.-Padam Singh is fatal to the prosecution. Apart from this, even if the injuries of Padam Singh is washed out from the record and even if it may be taken that he was not produced before the court, that pales into insignificance when ocular testimony of Raghuvir Singh PW1 and Constable Rajendra Pal Singh PW2 is found credible and cogent. It is established by cogent evidence that the appellants belaboured and assaulted Raghuvir Singh PW1 and Constable Rajendra Pal Singh PW2 in the police