IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No. 1594 of 2001 (Old No. 352/1991) Sangram Singh S/o Shri Dharm Singh, R/o Village-Pura, Silpat, Tehsil-Karnprayag, Distt. Chamoli. .…. Appellant/Accused Versus State …………… Respondent June 16, 2009 Mr. R.P. Nautiyal, Advocate for the appellant. Mr. M.A. Khan, Brief Holder for the State/respondent. HON’BLE DHARAM VEER, J. This appeal, preferred by the appellant under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.), is directed against the judgment and order dated 31.1.1991 passed by the Sessions Judge, Chamoli in Sessions Trial No. 15/1990, State v. Sangram Singh, whereby the learned Sessions Judge has convicted the appellant/accused Sangram Singh under Section 304 of Indian Penal Code, 1860 (for short, I.P.C.) and sentenced him to undergo R.I. for a period of 10 years. However, the appellant/accused was acquitted for the charge levelled against him under Section 201 IPC. 2. In brief, the prosecution case is that on 3.6.1990, PW1 Kutal Singh lodged an FIR with the Patwari Circle Silpata with the averments that the appellant/accused Sangram Singh had told to Mathura Singh in his presence in Wadatal (Doodhatoli forest) in the morning of 2.6.1990 2 that he had committed murder of Man Singh. Having received this information, he came to his house. Then he came to know that the dead body of his son was lying in the house of Mathura Singh. With these averments, he had sent the FIR to the Patwari through PW3 Hari Singh on 3.6.1990. That FIR is Ex. Ka-1. On the basis of this FIR, Patwari Mahesh Giri (PW5) had prepared the chick FIR on 3.6.1990 at 8.30 AM. That chick FIR is Ex. Ka-3. Necessary entries were made in the GD. Carbon copy of the GD is Ex. Ka-4. (In rural hilly areas of State of Uttarakhand, the Patwaris and certain revenue officials are vested with police powers vide U.P. Govt. Notification NO. 494/VIII-418-16 dated 7/3/1916). 3. During the course of investigation, the Patwari prepared the inquest report of the dead body of Man Singh on 3.6.1990, that is Ex. Ka-5. Sketch of the dead body Ex. Ka-7, samples of seal Ex. Ka-8 & Ka-9 and supardginama of the dead body for post mortem Ex. Ka-10 were also prepared along with the inquest report. After preparing the inquest report, the body was sent for post mortem. Post mortem was conducted by Dr. R.K. Garg on 5.6.1990 at 11.30 AM and the post mortem report has been proved by PW6 Dr. B.S. Razvi, who at that time was posted with him. The post mortem report is Ex. Ka-13. During the course of investigation the I.O. recovered the axe said to be used in the crime and prepared the fard Ex. Ka-2. He had also recovered the blood stained clothes of the deceased and prepared the fard Ex. Ka-11. During the course of investigation the I.O. also prepared the site plan Ex. Ka-6 and recorded the statements of the witnesses and after completing the investigation, he filed the chargesheet Ex. Ka-12 against the appellant/accused. 3 4. Thereafter on 17.9.1990, learned CJM had committed the case to the Court of Sessions after giving the necessary copies of the documents to the appellant/accused as prescribed under Section 207 Cr.P.C. 5. On 1.10.1990, learned Sessions Judge framed the charges against the appellant/accused under Section 302/201 I.P.C. The charges were read over and explained to the appellant/accused, who pleaded not guilty and claimed to be tried. 6. To prove its case, the prosecution examined PW-1 Kutal Singh, the complainant; PW2 Dhoni Devi, the only eyewitness of the case; PW3 Hari Singh through whom the report was sent; PW4 Lakhan Singh in the presence of whom the axe was recovered; PW5 Mahesh Giri, Patwari and I.O. of the case and PW6 Dr. B.S. Rizvi. 7. Thereafter, the statement the appellant/accused was recorded under Section 313 of Cr.P.C. The oral and documentary evidence were put to him in question form, who denied the allegations made against him. However, in defence he did not produce any documentary or oral evidence. 8. After hearing learned counsel for the parties and after appreciating the evidence on record, the learned Sessions Judge, Chamoli vide his judgment and order dated 31.1.1991 convicted the appellant/accused and sentenced him as discussed above. Against the aforesaid judgment and order dated 31.1.1991, the appellant/accused has preferred the present appeal. 4 9. I have heard learned Counsel for the parties and have carefully perused the entire material available on the record. 10. Before any further discussion, it would be pertinent to mention the ante mortem injuries found on the body of the deceased Man Singh as mentioned in the post mortem report which are reproduced as below: “ (1) Lacerated wound 16 cm x 3 cm brain deep, bone cut and decomposed brain matter coming out. Maggots present on vertex centrally. (2) Lacerated wound 13 cm x 3 cm brain deep, fractured Lt Temporal bone above & front Lt ear. (3) Lacerated wound 10 cm x 4 cm x bones deep fracturing occipital bone below and behind Lt ear.” 11. In the post mortem report, cause of death has been shown to be shock and hemorrhage and head injury as a result of Ante Mortem injuries. In the post mortem report, the duration of death has been shown to be 4-6 days before. To prove this post mortem report, the prosecution has examined PW6 Dr. B.S. Rizvi, who has proved the report and stated that the post mortem report Ex. Ka-13 was prepared by Dr. R.K. Garg who was posted with him. 12. To further prove its case, the prosecution has examined PW1 Kutal Singh who has stated that the deceased Man Singh was his son and the appellant/accused Sangram Singh was living as a religious son with his uncle Mathura Singh. Sangram Singh was married to Radha Devi. His son Man Singh was also married. But his wife was living in her parent’s house. Smt. Dhoni Devi wife of Mathura Singh was also the resident of his village. On the date of incident he was living in the Doodhatoli Forest in a thatch having animals. Mathura Singh also had a thatch adjacent to his thatch. 5 On 2.6.1990 at about 4 AM, Sangram Singh came in the forest as his uncle Mathura Singh was there. Sangram Singh had told that on the previous night he committed the murder of his son Man Singh with an axe inside the house of Mathura Singh. Thereafter Kutal Singh came to the village and inquired from his wife who told him that Man Singh had not come in the house since the yesterday night. Then the panchayat of the village decided to lodge the FIR and on 3.6.1990 at about 4 AM the report was sent to patwari chowki through Hari Singh and Gusain Singh. The report was inscribed by Mukund Singh and he had signed on the report Ex. Ka-1. On the same day, Patwari had come on the place of occurrence. The dead body of Man Singh was lying in the house of Mathura Singh and the injuries were there on his head. 13. PW-2 Dhoni Devi is the only eyewitness of this case who has stated that the appellant/accused Sangram Singh was like her religious son who lived in her house since his childhood. His marriage was solemnized with Radha Devi. Man Singh was the deceased son of Kutal Singh and they belonged to the same village. She was an illiterate lady. Man Singh was aged about 22 years. She has further stated that on the date of the incident, after having the dinner, she was sleeping in her old house along with her daughter Dama, who was eight years old. Her husband Mathura Singh was living in Doodhatoli forest as buffaloes were there and on that fateful night, he was in that forest. In the night of the incident somebody hit the door with the leg due to which the bolt of door had broken and deceased Man Singh entered into the room. Just after sometime Sangram Singh also came inside the house. Then Sangram Singh asked, ‘who is that’, but Man Singh did not reply, due to which the scuffle took place between Sangram Singh and Man Singh. Sangram Singh had 6 caused the injuries in the head of Man Singh and because of the injuries, Man Singh collapsed on the earth. After that she along with her daughter had gone to her new house where Radha Devi was living and Sangram Singh also remained there. Then she told the incident to Radha Devi. After that Radha Devi had gone to her parents’ house. She had heard that Radha Devi was having illegal relation with Man Singh but she had never seen her with him. On the date of incident, the night was very murky and next day morning Mathura Singh returned to the house and till then the dead body of Man Singh was lying in the house. 14. In the cross-examination, PW2 Dhona Devi has stated that when Man Singh had entered into the house after breaking the door then he tried to snatch the husli from her neck, which she was wearing at that time. Man Singh tried to outrage her modesty and also tried to rape her. She raised the alarm. She asked Man Singh ‘who are you’ and also asked the purpose for entering into the house, but Man Singh had not replied. At that time it was complete blackout. Approximately half of the night had passed. She could not say that what Man Singh would have done had Sangram Singh not reached at spot. At the time of incident, she did not come outside the room. After the incident she came out from the room. After the incident she did not talk with Sangram Singh. On the date of incident, Sangram Singh was going to give the grass to the ox and meanwhile she had clamoured and Sangram Singh reached on the place. During that period it was sowing time of Maduwe crop. Hence, the ox was being fed grass in the night for the morning cultivation. When Sangram Singh had come in the room then he had asked Man Singh, ‘who are you’, but Man Singh had not replied. Till then she could not know who had entered in the room 7 before Sangram Singh. She has further stated that when Sangram Singh had entered in her room, at that time Man Singh was using a criminal force to outrage her modesty. Sangram Singh had tried to rescue her and in that scuffle, Sangram Singh caused the injuries to Man Singh. Due to the darkness she could not exactly say as to who had caused the injuries first in the said scuffle between Man Singh and Sangram Singh. At the place of occurrence where Man Singh had died, the stones were there in the oven (chulha) and Man Singh and Sangram Singh had fallen onto the stones lying on the floor near the chulha. She has further stated that the wife of Sangram Singh, on the date of incident, was living in the new house. She has further stated that it might be possible that this fact was in the knowledge of Man Singh that her husband had gone to the forest in the night to look after the animals. She could not say the weight of the hasuli which she wore at the time of incident. On the date of incident she was also wearing balis (earrings) in her ears. Sangram Singh was her religious son and was living with her since his childhood days. Father of Sangram Singh, namely, Dharm Singh was the eldest brother of her husband Mathura Singh. She was having one son and one daughter. Son was 12 years old and daughter was 8 years old. Sangram Singh was taken care of by her after the death of his parents. Sangram Singh was about 22 years old. In a suggestion, she replied that it would be correct to say that Sangram Singh caused the injuries to Man Singh in trying to safeguard her modesty. The scuffle had taken place between Man Singh and Sangram Singh and in that scuffle Man Singh died. 15. PW3 Hari Singh has stated that on 3.6.1990 he had gone to the patwari chowki to lodge the FIR which was 8 given to him by Kutal Singh, PW1. Distance of patwari chowki from his village was about 8-9 kms. 16. PW4 Lakhan Singh has stated that Patwari had recovered the axe near the dead body of Man Singh inside the house of Mathura Singh. That axe is Ex. 1. Thereafter recovery memo Ex. Ka-2 was prepared. 17. PW5 Mahesh Giri was working as Patwari on 3.6.1990. On that day, Hari Singh had come to him with FIR. On the basis of that FIR he prepared the chick FIR. Necessary entries were made in the GD. Copy of the GD is Ex. Ka-4. After that he inspected the place of occurrence and prepared the inquest report Ex. Ka-5 and also prepared the site plan Ex. Ka-6. Along with the inquest report, he also prepared naksha lash, namoona seal, supardginama lash, Ex. Ka-7 to Ka-10 respectively. On the pointing out of the appellant/accused, the axe was recovered in the house of Mathura Singh, fard of which is Ex. Ka-2. During the course of investigation, he recorded the statements of the witnesses and filed the chargesheet Ex. Ka-12. 18. After that, the statement of the appellant/accused was recorded under Section 313 of Cr.P.C. The oral and documentary evidence were put to him in question form, who denied the allegations made against him. In reply to question no. 10, he has stated that a scuffle took place between him and Man Singh and also between his aunt and the deceased Man Singh. The deceased was trying to snatch the husli (an ornament made of silver) from her neck and was using criminal force in order to outrage her modesty and also tried to rape her. Deceased Man Singh received the injuries when he collapsed on the floor. In reply to question no. 22, he has stated that in the room 9 where the incident took place, utensils, chulha, stones and instruments were lying there. When Sangram Singh reached on the spot, the deceased was scuffling with his aunt Dhona Devi. He could not identify that person. He enquired, ‘who is that’, but he did not reply. However, in defence he did not produce any documentary or oral evidence. 19. Learned Counsel for the appellant has submitted that the FIR has been belatedly lodged as the incident was said to have taken place in the intervening night of 1st and 2nd June, 1990 and FIR was lodged on 3.6.1990 at 8.30 AM. The distance of patwari chowki from the place of occurrence has been shown to be 15 kms. The delay in lodging the FIR has not been explained by the sufficient cause. Furthermore, it is the own statement of PW1 Kuntal Singh that when the appellant/accused came in the forest to inform his uncle Mathura Singh that he murdered Man Singh in the night, then he was also present there. It does not appear to be plausible that the appellant/accused will confess his guilt in the presence of father of the deceased, which falsifies the evidence of PW1. As per PW1, he had come in the village on 2.6.1990 in the day time but he could not lodge the FIR on the same day and it was lodged only on 3.6.1990 at 8.30 AM. Thus, the delay in lodging the FIR has not been explained by sufficient cause which is fatal to the case of prosecution and it creates reasonable doubt on the prosecution story. 20. Learned Counsel for the appellant has further argued that the recovery of axe has been shown to be made on 3.6.1990 near the dead body of the deceased which is also not possible in the circumstances of the case and it also casts doubt regarding recovery of the alleged weapon. I 10 also find substance in the argument due to the reason that the appellant/accused remained present in the village on 2.6.1990 and 3.6.1990. He was arrested by Patwari in the evening of 3.6.1990. The dead body of Man Singh was lying in the house of Mathura Singh, uncle and religious father of the accused. He could have easily removed the axe from the place of occurrence as it was in the house of Mathura Singh. Thus, it also falsifies the factum of recovery of axe from the place of occurrence on 3.6.1990. 21. Learned Counsel for the appellant has further argued that the appellant/accused is also entitled to right of private defence. I also find substance in the argument of learned Counsel for the appellant for reasons which shall be discussed hereinafter. 22. Before further discussion, it would be pertinent to quote Sections 96, 97, 100 and 103 IPC for the sake of convenience and the same are reproduced as under: “96. Things done in private defence.—Nothing is an offence which is done in the exercise of the right of private defence. 97. Right of private defence of the body and of property.—Every person has a right, subject to the restrictions contained in section 99, to defend— First.— His own body, and the body of any other person, against any offence affecting human body; Secondly.—The property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass. 100. When the right of private defence of the body extends to causing death.—The right of private 11 defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely.— First.— Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault; Secondly.—Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault; Thirdly.— An assault with the intention of committing rape; Fourthly.—An assault with the intention of gratifying unnatural lust; Fifthly.— An assault with the intention of kidnapping or abducting; Sixthly.— An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release. 103. When the right of private defence of property extends to causing death.—The right of private defence of property extends, under the restrictions mentioned in section 99, to the voluntary causing of death or of any other harm to the wrong-doer, if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, be an offence of any of the descriptions hereinafter enumerated, namely:-- First.— Robbery; Secondly.—House-breaking by night; Thirdly.— Mischief by fire committed or any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or as a place for the custody of property; 12 Fourthly.—Theft, mischief, or house-trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised.” 23. It is evident from the evidence discussed above that PW1 Kutal Singh is a formal witness who has not seen the incident and is simply a heresy witness. PW2 Dhoni Devi is the only eyewitness and also the victim of the incident. PW3 Hari Singh had only lodged the FIR. PW4 Lakhan Singh is simply the witness of recovery of axe and this story of the prosecution has already been held to be concocted one as discussed in paragraph 20 of this judgment. 24. Thus, the only relevant witness with the prosecution is PW2 Dhoni Devi who has stated that on the date of the incident, she had gone to sleep along with her eight years old daughter around midnight after having the dinner. Man Singh came and hit the door with his leg because of which the bolt of the door had broken and thereafter he entered in the house and tried to snatch the hasuli (ornament of silver) from her neck and tried to outrage her modesty. He also tried to rape her. She made a noise and on this, the appellant/accused came inside the room (who was going at that time to feed the ox because sowing period of Maduwe crop was on and he was giving the grass to his ox for the morning cultivation). He asked Man Singh, ‘who is that’, but he had not replied which resulted in the scuffle between the deceased and the appellant/accused as well as between Dhoni Devi and the deceased. In these scuffles, Man Singh sustained the injuries and finally succumbed to his injuries. Dhoni Devi 13 has further stated that the injuries were caused to Man Singh in order to save her modesty. 25. Thus, from the evidence discussed above, it is proved that whatever injuries Man Singh had sustained were due to the crime which he was trying to commit, i.e. he intruded into the house of Dhoni Devi (PW2) and tried to outrage her modesty and rape her. He also tried to snatch the hasuli from the neck of Dhoni Devi. Therefore, there was reasonable apprehension that death or grievous hurt would be the consequence had the appellant not exercised the right of private defence as the deceased Man Singh scuffled with the appellant as well as with Dhoni Devi and also tried to commit robbery. The deceased Man Singh even attempted to outrage her modesty and tried to rape her. Under such circumstances, the incident appears to be the result of the acts done in self defence. Therefore, in view of the facts and circumstances of the case, the appellant/accused is entitled for the right of private defence. 26. For the reasons recorded above and in the facts and circumstances of the case, I do not agree with the view taken by the trial court and the impugned judgment of the trial court dated 31.1.1991 convicting and sentencing the appellant/accused as discussed above is not correct and justified. 27. In the result, the appeal is allowed. The judgment and order dated 31.1.1991 passed by the Sessions Judge, Chamoli in Sessions Trial No. 15/1990, State v. Sangram Singh convicting the appellant/accused Sangram Singh for the offence punishable under Section 304 IPC is hereby set aside and the sentence of R.I. for a period of 10 years is quashed. Appellant is hereby acquitted of the 14 charges levelled against him. The appellant is on bail. He need not surrender. His bail bonds are cancelled. Sureties are discharged. 28. Let the lower court record be sent back. (Dharam Veer, J.) 16.6.2009 PRABODH