HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No.1796 of 2001 1. Mahipal Singh S/o Atroo 2. Vijay Pal S/o Atroo 3. Narender S/o Chatroo 4. Munesh S/o Chatroo All residents of village Chudiyala, P.S. Bhagwanpur, District Haridwar ....Appellants Versus State of Uttaranchal (Now State of Uttarakhand) ...Respondent Mr. S.K. Agarwal, learned senior counsel assisted by Mr. S.S. Bhandari, counsel present for the appellants. Mr. Amit Bhatt, AGA present for the State. Coram: Hon’ble Prafulla C. Pant, J. Hon’ble V.K. Bist, J. Prafulla C. Pant, J. (Oral) This appeal preferred under Section 374 of Code of Criminal Procedure, 1973 (for short Cr.P.C.) is directed against the judgment and order dated 26.09.2001 passed by Additional Sessions Judge, Roorkee in Sessions Trial No.227 of 1996 whereby said court has convicted the appellants Mahipal, Vijaypal, Narendra and Munesh under Section 302 read with Section 34 of Indian Penal Code, 1860 (for short I.P.C.) and sentenced each of them to imprisonment for life. 2. Heard learned counsel for the parties and perused the lower court record. 2 3. Prosecution story in brief is that on 21.12.1995 at about 3:00 pm accused appellant Mahipal had a quarrel with Shyam Lal (uncle of the complainant). Thereafter accused appellant Mahipal at about 10:00 pm on the very day (21.12.1995) alongwith accused appellants Vijaypal, Narendra and Munesh came to the house of Shyam Lal and started hurling abuses at him. Bharat Singh alias Bhartu (deceased) from the neighbourhood came out and asked accused appellants to desist from hurling abuses. On this accused appellants started assaulting him (Bhartu alias Bhart Singh) with Latis and Bricks. They left Bhartu in the injured condition. Complainant Jitendra Singh (P.W.1 and son of the injured) took his father (Bhartu) to civil hospital, Roorkee on the next day (22.12.1995) from where the injured was referred for further treatment to District Hospital, Haridwar. However on way to Haridwar on 22.12.1995, injured succumbed to injuries and brought back to the village Chudiyala. By the time complainant reached in the village with the body of his father, the night had fallen, as such the first information report (Ext.A-1) was got scribed by (PW.1) Jitendra Singh through one Satya Pal on the next day 23.12.1995 and got it lodged at Police Station, Bhagwanpur where it was registered as Crime No.157 of 1995 relating to offence punishable under Section 304 I.P.C. against the four accused Mahipal, Vijaypal, Narendra and Munesh (present appellants). The investigation was taken up by Sub Inspector Satish Chandra Mishra. He got sent the police party to village Chudiyala and after taking dead body of Bhartu in their possession, the police prepared inquest report (Ext. A-2) on 23.12.1995. Other necessary papers like Police Form No.13 (Ext.A-9), 3 Police Form No.33 (Ext.A-7), sketch of the dead body (Ext.A-12), sample seal (Ext.A-11) were also prepared and dead body was sent in a sealed condition for post mortem examination. P.W.5 Dr. Hari Krishna Phuloriya conducted the post mortem examination on 24.12.1995 and prepared the autopsy report (Ext.A-4). He recorded as many as four ante- mortem injuries (with internal bleeding) and opined that the deceased had died of shock and haemorrhage as a result of ante-mortem injuries. Before the death of Bhartu alias Bhart Singh on 22.12.1995 when he was taken by his son (Jitendra Singh) to Civil Hospital, Roorkee, P.W.4 Dr. Mange Ram Malik also endorsed four injuries in the injury report (Ext.A- 3). It appears that the witnesses were interrogated on 23.12.1995 and thereafter by the Investigating Officer, Satish Chandra Mishra. However, later the investigation was transferred to P.W.8 Sub Inspector Daya Ram Arya who completed the investigation and submitted chargesheet (Ext.A-14) against all the four accused, namely, Mahipal, Vijaypal, Narendra and Munesh for their trial in respect of offence punishable under Section 304 I.P.C. 4. The Additional Chief Judicial Magistrate/Additional Civil Judge (Sr. Div), Roorkee on receipt of the chargesheet after giving necessary copies to the accused committed the case to the court of sessions for trial. On 18.10.1996 Additional Sessions Judge, Haridwar after hearing the parties framed charge of offence punishable under Section 302 read with Section 34 I.P.C. against the four accused who pleaded not guilty and claimed to be tried. On this prosecution got examined P.W.1 Jitendra Singh (complainant an eye witness), P.W. 2 Shyamm Lal (another eye witness), P.W.3 4 Isqlal (third eye witness), P.W.4 Dr. Mangeram Malik who recorded the injuries before referring the injured for further treatment to Haridwar, P.W.5 Dr. Hari Krishna Phuloriya who conducted post mortem examination, P.W.6 Sub Inspector, Shanti Prasad Bishnoi who prepared inquest report and other necessary papers, P.W.7. Constable Omvir Singh, who prepared check report of F.I.R., and P.W.8 Sub Inspector Daya Ram Arya who concluded the investigation. It appears that Sub Inspector Shanti Prasad Bishnoi was recalled and examined on 02.05.2001. Meanwhile, case appears to have been transferred to Additional Sessions Judge, Roorkee. Oral and documentary evidence was put to the accused persons who alleged same as false and pleaded that they have been implicated due to enmity. However, no evidence in defence was adduced. The trial court after hearing the parties found that accused appellants Mahipal, Vijaypal, Narendra and Munesh guilty of charge of offence punishable under Section 302 read with Section 34 I.P.C., and after hearing on sentence each one of them was sentenced for imprisonment for life. Aggrieved by the said judgment and order dated 26.09.2001 passed by Additional Sessions Judge, Roorkee in Sessions Trial No.227 of 1996, this appeal is preferred by the convicts. 5. Before further discussion, we think it just and proper to mention ante-mortem injuries found on the body of Bhartu alias Bharat Singh by P.W.5 Dr. Hari Krishna Phuloriya who prepared autopsy report (Ext.A-4). The ante-mortem injuries mentioned in Ext.A-4 are being produced below:- i. Abrasion 1 x 1 cm on left side of abdomen 5 cm away umbilicus at 3 ‘o’ clock position. 5 ii. Abraded contusion 3 cm x 4 cm on the back of left side faecal matter and pus proof. iii. Abraded contusion 7 cm x 4 cm on left side of abdomen, rupture in intestine and mesentery. iv. Abraded contusion 9 cm x 4 cm on left side of abdomen in left lumber region 15 cm from umbilicus at 3 ‘o’ clock position. On internal examination, Medical Officer found that peritoneum was congested with tear in the mesentery. He further found that in the abdominal cavity there was rupture of intestine and mesentery. Blood pus and faecal matter was also present. Also, he found small intestine ruptured. The Medical Officer (P.W.5) Dr. Hari Krishna Phuloriya opined that deceased had died of shock and haemorrhage as a result of ante-mortem injuries. 6. The corresponding injuries to the ante-mortem injuries mentioned above, were observed by P.W.4 Dr. Mangeram Malik on 22.12.1995 at Civil Hospital, Roorkee when Bharat Singh alias Bhartu was brought for treatment in said hospital. The injury report (Ext. A-3) prepared by said Medical Officer discloses following injuries found on the person of Bharat Singh alias Bhartu before his death:- i. Contused swelling sized 8 cm x 4 cm on the back of left forearm just below elbow joint. Blue in colour. ii. Abrasion sized 1 cm x 10 cm left side of abdomen 5 cm away from umbilicus at 3 ‘o’ clock position. iii. Contused swelling sized 7 cm x 4 cm on left side of abdomen, in illiac fossa near left anterior superior Illiac spine, blue in colour. Advised X- Ray. iv. Contused swelling sized 9 cm x 4 cm on left side of abdomen in left lumber region, 15 cm 6 away from umbilicus at 3 ‘o’ clock position, blue in colour. Advised X-Ray. 7. According to the Medical Officer (P.W.4) Dr. Mangeram Malik, general condition of the patient was poor but he was conscious. P.W.4 Mangeram Malik further stated before the court that injuries could have been caused by blunt object. He further told the court that the injuries could have been suffered at 10:00 pm on 21.12.1995. The medical evidence adduced by P.W.5 Dr. Hari Krishna Phuloriya who prepared autopsy report (Ext.A-4) after post mortem examination on the body of Bharat Singh, read with the statement of P.W.4 Dr. Mangeram Malik alongwith the injury report (Ext.A-3) prepared by him, it is established on the record that Bharat Singh alias Bhartu suffered injuries on 21.12.1995 and died homicidal death. However, it is pertinent to mention here that P.W.5 Dr. Hari Krishna Phuloriya has stated that nature of the injuries was such that had the injured been brought for medical treatment immediately, his life could have been saved. Now we have to see whether accused appellants Mahipal, Vijaypal, Narendra and Munesh committed murder of Bhartu with common intension as suggested by prosecution or not. We have to further examine whether the act if any found proved on the part of the accused appellants constitutes “Murder” or culpable homicide not amounting to murder. 8. P.W.1 Jitendra Singh is informant and eye witness of the incident. He has stated that on the date of incident at about 10:00 pm when accused appellants Mahipal, Vijaypal, Narendra and Munesh came near their house and started hurling abuses at Shyam Lal, deceased (Bhartu alias Bharat 7 Singh) came out and asked the accused appellants to desist from using foul language. On this accused appellants got provoked and started assaulting Bharat Singh with Lathis and Bricks. The witness (P.W.1) further states that next day he took his father (Bharat Singh alias Bhartu) to Civil Hospital, Roorkee from where he (Bharat Singh alias Bhartu) was referred for further treatment to Haridwar but on his way to Haridwar the injured succumbed to injuries. P.W.1 Jitendra Singh has further stated that thereafter he brought back his father’s body to his village Chudiyala, and on the third day i.e. 23.12.1995 lodged the first information report (Ext.A-1) at Police Station Bhagwanpur. Though the first information report is delayed one but the explanation given by the witness that his priority was to save his father’s life, deserves to be accepted. 9. P.W.2 Shyam Lal has fully supported the prosecution story and stated that on the date of incident during day time another Shyam Lal had a quarrel with (accused appellant no.1) whereafter Mahipal alongwith Munesh, Narendra and Vijaypal at about 10:00 pm. came to his house and used foul language. The witness further states that Bharat Singh asked the accused to stop using foul language on which accused appellants started assaulting with Lathis and Bricks to him. The witness further states that he could see the entire incident in the electric light. The witness further states that the deceased was his brother. 10. The statements of P.W.1 Jitendra Singh and P.W.2 Shyam Lal are not only corroborated from the medical evidence as discussed above but also from the statement of 8 P.W.3 Isqlal who is also resident of the same village Chudiyala. He has also narrated the same story as narrated by the other two witnesses and his statement is more natural and trustworthy in view of the fact that he stood each and every test, he went through in the cross examination. He has also corroborated the fact that there was electric light at the time of the incident, though the witnesses are related to each other but in the village scenario and considering the facts and circumstances of the case, the presence of the three witnesses at the place of incident appears to be natural and trustworthy and their deposition cannot be discarded on the ground that they were related to each other. 11. Learned counsel for the accused appellants apart from pointing delay in first information report and relation between witnesses, regarding which we have already discussed the issue referred to the statements of witnesses under Section 161 Cr.P.C. recorded by the Investigating Officer who has mentioned the date of incident as 22.12.1995 while the witnesses have stated ‘21.12.1995’ as the date of incident. No doubt Investigating Officer appears to have mentioned 22.12.1995 as date of incident in the statement of the witnesses but the first information report (Ext.A-1), injury report (Ext.A-3) and the statements on oath given before the trial court by the witnesses clearly indicate that the Investigating Officer appears to have recorded ‘22.12.1995’ by mistake in the statement of the witnesses. 12. It is also argued on behalf of the accused appellants that even if the testimony of the eyewitnesses is treated as reliable and prosecution story is taken to be true, it is not a case 9 covered by Section 302 of I.P.C. rather it is a case of Para 2 of Section 304 I.P.C. We have examined the matter and the facts and circumstances of the case. Undoubtedly, the accused appellants as suggested by prosecution had come to settle score with Shyam Lal and they were hurling abuses at him. The deceased (Bharat Singh) said to have come out from the house and asked the accused appellants to desist from using the foul language on which they appear to have got provoked and started assaulting him. 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 the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. In our opinion facts and circumstances of the case makes the act committed by accused persons covered under exception 4 of Section 300 I.P.C. Para 2 of 304 I.P.C. which provides that a culpable homicide not amounting to murder shall be punished with imprisonment which may extend to 10 years or with fine or with both, if the act is done with the knowledge that it is likely to cause death but without any intention to cause death, or to cause such bodily injury as is likely to cause death. We have already taken note of the fact that P.W.5 Dr. Hari Krishna Phuloriya has stated that had the injured been brought immediately to the hospital, his life could have been saved. Apart from this, Lathi’s blow appeared to have not been given in a cruel manner on the head rather as stated by P.W.3 Isq Lal the accused used the base part of Lathi on the abdomen of Bharat Singh in 10 assaulting him. It has already been discussed that apparently the injuries were abrasion and contusions and were not sufficient to cause death in ordinary course. 13. Having considered the nature of injuries and above facts, we are of the view that the act on the part of the accused appellants constitutes the offence of culpable homicide not amounting to murder punishable under Para II of Section 304 read with Section 34 I.P.C. 14. Accordingly, the appeal is partly allowed. The conviction and sentence recorded by the trial court against accused appellants under Section 302/34 I.P.C. is set aside, but each one of the accused appellants, namely, Mahipal, Vijaypal, Narendra and Munesh is convicted under Section 304 Para II read with Section 34 I.P.C. and sentenced to rigorous imprisonment for a period of seven years. With this modification in the conviction and sentence, the appeal stands disposed of. The accused appellants are on bail. Their bail is cancelled. They shall surrender before the court concerned to serve out the remaining part of the sentence (adjusting the period already spent in jail) as modified by this Court. Lower court record be sent back. (V.K.Bist, J.) (Prafulla C. Pant, J.) 17.03.2011 17.03.2011 Arti