HIGH COURT OF UTTARAKHAND, AT NAINITAL Criminal Appeal No.92 of 2003 Aan Singh S/o Bishan Singh, R/o Village Gajali, Patwari Circle – Tupedh, Tehsil & District – Bageshwar. ……Appellant Versus State ……Respondent Mr. Dinesh Chauhan, Advocate for the appellant. Mr. Amit Bhatt, Addl. Government Advocate for the State. JUDGMENT Hon’ble J. C. S. Rawat, J. This is a criminal appeal preferred against the judgment and order dated 17/2/2003 passed by the learned Sessions Judge, Bageshwar in ST No. 28/2001, whereby the learned Sessions Judge has convicted the accused-appellant for the offence punishable under Section 325 IPC and sentenced him to undergo rigorous imprisonment for the period of three years and fine of rupees three thousand only. The learned Sessions Judge further directed that in default of payment of fine, the appellant would undergo simple imprisonment for another period of three months. 2. The brief facts of the prosecution case as emerged from the record are that on 28.11.1998 at about 1600 hours, the injured Ram Chandra was sitting in his courtyard. The appellant-Aan Singh alongwith other persons came to the house of the injured-Ram Chandra and started breaking the water pipelines as well as the tape situated near his house. Seeing this, the injured told them that water is not coming in this pipeline and they are disturbing it for no cause. Thereupon, the accused-appellant alongwith other persons started hurling filthy abuses upon him. Gopal Singh caught hold of the injured and Aan Singh (the appellant) struck an iron pipe on his head whereas other persons surrounded him at the spot. The injured cried for help uponwhich Kheema Nand S/o Leeladhar and Harish Chandra S/o Devi Datt reached at the spot and saved the injured from the clutches of the accused persons. The accused-appellant alongwith other persons left the place of occurrence threatening the injured with dire consequences. The injured-Ram Chandra was badly injured in the incident and he was taken to Bageshwar Hospital by Kheema Nand where he was admitted and treated by the doctor. As he remain admitted in Bageshwar Hospital from 28.11.1998 to 07.12.1998, the injured got scribed a report by someone with regard to the incident and got it lodged by Kheema Nand on 30.11.1998 to the Patti Patwari concerned (Revenue Police). As the injured could not recover fully by the aforesaid treatment provided at Bageshwar hospital so his son-Jagdish Chandra PW2 who was serving in the Army came to his house on 25.1.1999 and took the injured to Delhi on 27.1.1999. During their journey to Delhi, the injured felt some problem at Haldwani so he was taken to the Base Hospital, Haldwani where after getting some treatment for few hours, the journey to Delhi was again continued and ultimately, the injured who got admitted in the Emergency Ward of Safdar Jung Hospital, Delhi died on 29.1.1999 at about 05.30 pm. It is alleged that the injured died due to the head injury sustained by him on the date of the incident. The body of the deceased Ram Chandra was taken to Bageshwar from Delhi where his postmortem was conducted by the doctors. On the report of Jagdish Chandra PW2, the matter was investigated by the police and the case was converted from non- congnizable offence to congnizable offence punishable under Section 304 IPC. The Investigating Officer submitted the chargesheet against the appellant and one Bishan Singh who had died during the trial. 3. After submission of the chargesheet, the trial court framed charges against the appellant alongwith two others under Section 302 IPC readwith 34 IPC. The accused-appellants denied the charges levelled against him and claimed trial. 4. In order to prove its case, the prosecution examined Smt. Durga Devi as PW1 who is wife of the deceased-Ram Chandra, Jagdish Chandra as PW2 who is the son of the deceased, Harish Chandra as PW3, Kheema Nand as PW4, Jagdish Chandra as PW5 who is the Pharmacist posted at Community Health Centre, Bageshwar & Pooran Chandra Gotra as PW6 who is the Patwari before whom Kheema Nand PW4 had lodged the report with regard to the incident and he has also proved the report (Ex. Ka-4). 5. The accused-appellant was examined under Section 313 of the Criminal Procedure Code. He has denied all the averments made in the evidence and he has further stated that he has been falsely implicated in this case. 6. The accused-appellant in support of his case, adduced the evidence of Gopal Singh DW1 and also of himself as DW2. He has stated in his evidence that he lodged a complaint on the behest of his father-Bishan Singh before Judicial Magistrate, Bageshwar wherein it was alleged that on 28.11.1998 Ram Chandra-the deceased injured his father Bishan Singh. The said incident was seen by his brother Gopal Singh DW1, Trilok Singh and Iswari Datt. He has further stated in his deposition that the day on which he had lodged the said complaint, his father Bishan singh was admitted in Bageshwar hospital, as such, he had filed that complaint. Gopal Singh DW2, the brother of Aan Singh has stated in his deposition that he lodged a report on 30.11.1998 to the patti patwari alleging therein that on 28.11.1998 his father Bishan Singh alongwith Iswari Datt & Trilok Singh-an employee of Jal Nigam were repairing the water tape situated near the house of Ram Chandra-the deceased. The deceased objected to this and started pelting stones upon his father, uponwhich he sustained injuries on his person. Thereafter, Bishan Singh was taken to Bageshwar Hospital where he remained hospitalized for 7 to 8 days in the hospital. It is also stated in the deposition that Bishen Singh has died on 23rd December, 2001. The said report lodged by him (Gopal Singh DW1) on 30.11.1998 was proved by him and it was filed before the magistrate alongwith the complaint filed by Aan Singh DW2. 7. The learned trial court after appreciation of the evidence found the appellant guilty of the offence, and convicted and sentenced the appellant as mentioned above. It is pertinent to mention here that co- accused Pooran Singh was acquitted by the trial court from the charges leveled against him and the case of co-accused Bishan Singh was abated due to his death during the trial. 8. I have heard Mr. Dinesh Chauhan, the learned counsel for the appellant and Mr. Amit Bhatt, Addl. Government Advocate for the respondent-State. I have also gone through the evidence and material on record. 9. At the outset it needs to be mentioned that: firstly, the prosecution has not filed any medical report/injury report of the deceased-Ram Chandra who was said to be admitted in Bageshwar hospital from 28.11.1998 to 07.12.1998; secondly, there is no iota of medical evidence with regard to the injuries sustained by the deceased-Ram Chandra on his person; thirdly, the material fact which was brought on record from the evidence of Jagdish Chandra PW2 is that when he was taking his father to Delhi for his treatment, his father got some problem near Kathgodam due to the head injury and he became unconscious, as such, he was taken to Soban Singh Jena Base Hospital, Haldwani where he was medically examined by the doctors and his X-ray was also conducted but no document of such treatment was produced before the trial court; fourthly, it is the prosecution case that the deceased after getting discharged from the Base Hospital, Haldwani where he stayed for 5-6 hours, was then taken to Safdarjang Hospital, New Delhi where he was admitted and his X-ray was also conducted & eventually, he died on 29.1.1999 but again there is neither any documentary evidence with regard to his admission in the said hospital nor there is any X-ray report which is alleged to be conducted by the hospital, moreover, there is no evidence with regard to his discharge from the said hospital (Safdarjang Hospital, New Delhi) and there is also no postmortem report of the Safdarjang Hospital, New Delhi; fifthly, it is in the evidence of the prosecution that after the death of the deceased, his body was brought to Bageshwar on the next date of his death i.e. on 30.1.1999 where his son Jagdish Chandra PW2 gave an application to the SDM uponwhich postmortem of the deceased was conducted at Bageshwar Hospital but again, the doctor who conducted the postmortem was not examined by the prosecution. The postmortem report was proved by the secondary evidence of Jagdish Chandra PW5-the Pharmacist. 10. In light of the above facts, I would like to examine the entire evidence of the prosecution to ascertain whether the accused-appellant is the author of the injuries sustained by the deceased on his head on the date and time of the incident. The prosecution has adduced as far as five witnesses to prove the fact that the incident took place on 28.11.1998 at about 4 pm in which the appellant Aan Singh struck the deceased with an iron pipe on his head by which he sustained an injury resulting to which he was admitted in Bageshwar hospital where he remained admitted from 28.11.1998 to 07.12.1998 and thereafter, he was taken to Safdarjang Hospital, New Delhi where he died on 29.1.1999. 11. Smt. Durga Devi PW1 is the wife of the deceased-Ram Chandra. She has stated in her evidence that she is not the eyewitness of the incident. She has stated in her evidence that on the date of the incident she had gone in the forest to graze her animals. When she returned to her house in the evening, she found that her husband was sitting on the roof of his house and was surrounded by other villagers. She saw that blood was oozing from the head of her husband-Ram Chandra (the deceased) and when she asked him about the cause for the said injury on his person, he told her that the first assault was made by Gopal Singh and the second assault was made by the appellant Aan Singh whereas Pooran Singh caught hold of him. During the narration of above fact to her wife, the deceased became unconscious. After regaining consciousness, the deceased again narrated her that Bishan Singh, his wife Padma Devi & Khimuli Devi W/o Gopal Singh pelted stones upon him whereas the appellant-Aan Singh struck him with an iron pipe on his head. Smt. Durga Devi PW1 has further stated that Harish Chandra PW3 and Kheema Nand PW4 took the deceased to Bageshwar Hospital for treatment after the incident and later on her son Jagdish Chandra PW2 took the deceased to Delhi for treatment. 12. The prosecution also adduced the evidence of Jagdish Chandra PW2 who is the son of the deceased. Admittedly, he was not present at the spot on the date of the incident. He has stated in his evidence that he came to his house from his service place on 25th January, 1999 and found an injury on the head of his father-the deceased. When he asked his father as to how he received the said injury, his father told him that Pooran Singh caught hold of him and, Gopal Singh assaulted him thereafter. The appellant-Aan Singh also beaten him whereas Bishan Singh, the father of the appellant pelted stones upon him. The deceased also named him some other persons who participated in the incident but they were not chargesheeted by the Investigating Officer. Jagdish Chandra PW2 further stated that he took his father to Delhi on 27.1.1999 for treatment. During their journey to Delhi, the deceased became unconscious at Kathgodam and he immediately took the deceased to Base Hospital, Haldwani where he was admitted for 5-6 hours in the hospital and thereafter, he took him to Safdarjang Hospital, New Delhi where he got him admitted and finally, the deceased died on 29.1.1999 at about 5.30 pm due to the injury sustained by him on the head. The body of the deceased was taken to Bageshwar where the postmortem was conducted. The aforesaid witness also gave information with regard to the death of the deceased to the SDM at Bageshwar. 13. The prosecution also examined Harish Chandra PW3 who has stated in his evidence that he came to the house of the deceased-Ram Chandra on the date and time of the incident where a scuffle had taken place between Ram Chandra-the deceased and Bishen Singh, the father of the appellant. Gopal Singh was intervening in the melee and trying to pacify both the persons. Thereafter, the appellant-Aan Singh and Pooran Singh reached at the spot and took Bishan Singh to their house. He further stated that there were no other persons present at the spot except him and the persons named aforesaid. He has also stated in his cross-examination that he has not seen any ‘marpeet’ at the spot. 14. Kheema Nand PW4 is also not an eyewitness of the incident. He has stated in his evidence that he heard that Ram Chandra-the deceased was beaten by Bishan Singh and his family members. He further stated that he had seen the injury on the head of the deceased with his own eyes. He took the deceased to the hospital for treatment and got him admitted there. He also lodged the report of the incident to the Patti patwari concerned and also proved the aforesaid report Ex. Ka-2 in his evidence. He also stated that the son of the deceased later took him to Delhi for treatment where the deceased eventually expired during the course of the treatment. 15. This is all the evidence of the aforesaid witnesses, which is said to be the direct evidence of the incident. It is apparent from the perusal of the entire evidence of the prosecution witnesses that none of the aforesaid witnesses had seen the incident as stated by the prosecution. After appreciation of the evidence, the trial court acquitted the accused-appellant under Section 302 readwith 34 IPC but found him guilty under Section 325 of the IPC. Thus, the accused-appellant has been acquitted under Section 302 readwith Section 34 IPC. No appeal has been filed by the State for the said acquittal and nothing has been brought on record that any appeal is pending against the said acquittal. Thus, the findings and the judgment with regard to Section 302 readwith Section 34 have attained the finality. Now, I have only to consider whether the accused-appellant Aan Singh is guilty of the offence punishable under Section 325 of the IPC or not. 16. As I have pointed out earlier that all the so called eyewitnesses are not the eyewitness of the incident. What I concluded from the perusal of the aforesaid witnesses is that the so called eyewitnesses were not present at the spot and they have not seen any ‘marpeet’ at the spot. Only Harish Chandra PW3 has stated in his evidence that on the date of the incident when he was returning to his house after purchasing for the pooja for his house and he reached the house of the deceased where he found that a scuffle had taken place between the deceased-Ram Chandra and Bishan Singh. Gopal Singh was pacifying both the parties whereas the appellant- Aan Singh & Pooran Singh took Bishan Singh to his house. The aforesaid witness has further stated in his cross-examination that he had not seen any ‘marpeet’ between Ram Chandra and the appellant-Aan Singh. This witness has not been declared hostile by the posecution, as such, the evidence of this witness is totally credible and cogent. This witness has further stated in his evidence that blood was oozing from the head of the deceased and nobody else was present at the spot except the aforesaid named persons. Thus, this witness has not said anything about the incident as is being narrated by the prosecution. He is said to be the eyewitness of the incident according to the prosecution. But he had stated that he had not seen the main incident. If the prosecution had felt at any stage that the aforesaid witness was telling against the interest of the prosecution, it would have moved an application to get him cross-examined. Since it was not done so, as such, the testimony of the witness would be read against the prosecution. 17. The prosecution has also led the evidence of Smt. Durga Devi PW1. The incident as narrated by the prosecution is that Aan Singh, the present appellant struck on the head of the deceased with an iron rod by which the deceased sustained an injury on his head and this fact was narrated by the deceased to her wife Smt. Durga Devi PW1. This statement is not spontaneous and it has been given later on. When Smt. Durga Devi PW1 was cross-examined, she has stated as follows: ’’ eSaus jkepUnz dks fdlh ds }kjk ekjrs ugha ns[kk] eSaus iVokjh dks jkepUnz us eq>ls vH;qDrx.kksa }kjk ekjs tkus dh ckr crk;h Fkh] bl Lrj ij xokg dks 161 CrPC ds c;ku lquk;s ’’ eSa tkuojksa ds lkFk ------------------- ;gh esjs c;ku gS tks Ik<+dj o lqudj rlnhd fd;sa] blesa vH;qDrx.kksa }kjk esjs ifr dks ekjs tkus okyh ckr dgh ij tks ugha fy[kh x;hA tc eSa ?kj vk;h ml le; os ySUVj esa ugha cjkens esa cSBs FksaA ;g dguk xyr gS fd os vius bykt ds fy;s ckxs’oj vdsys vk;s gksaA mudks ckxs’oj [khekuUn o gjh’k yk;s Fksa] xokg dks 161 CrPC ds c;ku Þ esjs vkus ds ckn os bykt ds fy;sa ckxs’oj vLirky dks x;s ’’ ;g dguk lgh gS fd bu c;kuksa esa [khekuUn o gjh’k }kjk ckxs’oj ys tkus dh ckr ugha fy[kh x;h gSA vLirky ls vkdj og Bhd Fksa ysfdu flj esa jkr dks nnZ jgrk FkkA ’’ She has further stated in her evience that she had not seen the incident with her own eyes. She has stated in her evidence that when she came to her house after the incident, the deceased told her that the appellant-Aan Singh caused injury on his head by an iron pipe. She has admitted that the statement did not contain the aforesaid fact of causing assault by the accused-appellant. Thus, it is an improvement during the course of the evidence about participation of the appellant in causing the injury on the person of the deceased by an iron pipe. As far as the evidence of Jagdish Chandra PW2 is concerned, he was admittedly not present at the spot. He reached to his house on 25.1.1999 and saw the injury on the head of his father and thereafter, he took him to Delhi for treatment. It is already mentioned that no medical report either of Haldwani or of Safdar Jung Hospital has been produced. It is also material that no postmortem was conducted at Delhi and at the first time, the postmoretem on the dead body of the deceased was conducted at Bageshwar and thus, his evidence has been discarded by the trial court while acquitting the accused-appellant under Section 302 readwith Section 34 of the IPC. He has further stated in his cross-examination that his father told him that the appellant-Aan Singh had struck him on his head with an iron pipe but he had stated that if the Investigating Officer has not recorded the statement in his deposition, he cannot tell the reason for not recording it under Section 161 Cr.P.C. Thus, this fact has not been stated by the witness at the time of recording his statement under Section 161 Cr.P.C. Kheema Nand PW4 has stated that he had not seen the incident. He has stated in his evidence that upon hearing of the incident, he reached to the house of the deceased and found him in injured condition, thereafter, he took the deceased to Bageshwar hospital for treatment and later on he lodged the report regarding the incident to the patti patwari concerned. Thus, the entire evidence is not an eye account and it did not prove the manner of the incident as stated by the prosecution. 18. Now It is to be seen as to whether the first information report which was scribed by Ram Chandra-the deceased and which was lodged by Kheema Nand PW4 on 30.11.1998 to the patwari concerned, can be read as a dying declaration or not. The said report Ex. Ka-2 is a report with regard to a non-cognizable offence. The prosecution has adduced the evidence of Kheema Nand PW4 before the trial court who has stated in his evidence that he was not the eye-witness of the incident. During his cross- examination, he has stated as follows: ’’ eSaus ?kVuk dks viuh vkW[kksa ls ugha ns[kkA ?kVuk dh tkudkjh xkWo esa gYyk gksus ls gqbZA [kkl fdl O;fDr ls tkudkjh gqbZ eSa ugha crk ldrk gwWA ?kVuk dh fjiksVZ eSaus ugha dh] ?kVuk dh fjiksVZ dc gqbZ eSa ugha tkurk gwW] ?kVuk ds ,d Ms<+ efgus ckn jkepUnz dh ekSr gks x;h- jkepUnz ?kj esa 10&15 fnu jgkAs ’’ Thus, this witness has denied about lodging of the report by him also. The prosecution has not adduced the evidence of the scriber of the report. The scriber would have stated before the court that how the report was lodged, whether it was dictated by the deceased or not, as such, it cannot be concluded that the report was written on the dictation of the deceased Ram Chandra. The prosecution before relying it as a dying declaration must prove to the satisfaction of the court that it is a piece of evidence which could be relied as a dying declaration. In the case in hand, there is no evidence of the scriber to whom the deceased has dictated the report. In view of the above, it is not prove as a dying declaration, as such, it cannot be relied upon. 19. In view of the above, it is not proved beyond reasonable doubt that the accused-appellant was the author of the injuries on the person of the deceased, as such, it would not be safe to convict the appellant and the appellant is entitled to get the benefit of doubt. The prosecution has also failed to establish the guilt beyond any reasonable doubt against the appellant. I find that the learned trial court has erred in convicting and sentencing the appellant. Hence, the appeal is allowed and, the conviction & sentence against the appellant awarded by the trial court are set aside. The appellant is acquitted of the charge levelled against him. 20. Let the lower court record be sent back to the court concerned. The compliance report be submitted within a period of three months. (J.C.S. RAWAT, J.) Dated 28.07.2008 V.K.