IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 927 of 2001 (Old No. 878 of 1999) 1. Sudarshan Verma S/o Radha Mohan 2. Jagdish S/o Radha Mohan 3. Deep Narain S/o Jagdish 4. Rajendra S/o Ram Raj 5. Ganesh Datt S/o Bishan Datt All R/o Village Chhatarpur, P .S. Rudrapur, Distt. U.S. Nagar. ...…………. Appellants Versus State of U.P. (Now State of Uttarakhand) ...…………. Respondent Mr. M.C. Kandpal, Sr. Advocate, assisted by Mr. S.S. Chaudhary, Advocate, and Mr. Rajendra Kotiyal, Advocate, present for the appellants. Mr. Amit Bhatt, Addl. Government Advocate, present for the State. Along with Government Appeal No. 2017 of 2001 (Old No. 2192 of 1999) 2 S tate of U.P. (Now State of Uttarakhand) ...…………. Appellant Versus 1. Moti Lal 2. Baliraj S/o Ram Lakhan Both R/o Village Chattarpur, P.S. Rudrapur, Distt. U.S. Nagar. ...…………. Respondents Mr. Amit Bhatt, Addl. Government Advocate, present for the State Mr. M.C. Pande, Advocate, present for the respondents. And Criminal Revision No. 92 of 2001 (Old No. 981 of 1999) Sudarshan Verma S/o Radha Mohan R/o Village and P.O. Chattarpur P .S. Rudrapur, Distt. U.S. Nagar. ...…………. Revisionist Versus State of U.P. (Now State of Uttarakhand) and others ...…………. Respondents 3 Mr. M.C. Kandpal, Sr. Advocate, assisted by Mr. S.S. Chaudhary, Advocate, present for the revisionist. Mr. Amit Bhatt, Addl. Government Advocate, and Mr. M.C. Pande, Advocate, present for the respondents. Coram : Hon’ble Prafulla C. Pant, J. Hon’ble Sudhanshu Dhulia, J. Hon. Prafulla C. Pant, J. (oral) Criminal Appeal No. 927 of 2001 (old No. 878 of 1999), preferred under Section 374 of the Code of Criminal Procedure, 1973 (for short Cr.P.C.), is directed against the judgment and order dated 21.04.1999, passed by V Addl. Sessions Judge, Nainital, in Sessions Trial No. 109 of 1990, whereby accused / appellants Sudarshan Verma, Jagdish, Deep, Rajendra and Ganesh Datt are convicted under Section 147, 148, 302 read with Section 149, Section 307 read with Section 149, and under Section 324 read with Section 149 of the Indian Penal Code, 1860 (for short I.P.C.). Each one of the above five convicts has been sentenced to imprisonment for life under Section 302 / 149 of I.P.C., rigorous imprisonment for a period of seven years under Section 307 / 149 of I.P.C., rigorous imprisonment for a period of one year under Section 324 / 149 of I.P.C., imprisonment for a period of six months under Section 147, and rigorous imprisonment for a period of one year under Section 148 of I.P.C. 4 2) The Government Appeal No. 2017 of 2001 (old No. 2192 of 1999) is preferred under Section 378 of Cr.P.C., challenging the order dated 21.04.1999, passed by V Addl. Sessions Judge, Nainital, in Sessions Trial No. 177 of 1990, whereby respondents Moti Lal and Baliraj were acquitted of the charge of offence punishable under Section 307 of I.P.C. Sessions Trial No. 177 of 1990 had arisen out of the cross version of the same incident in respect of which the above mentioned five appellants were convicted by the trial court in Sessions Trial No. 109 of 1990. Criminal Revision No. 92 of 2001 (old No. 981 of 1999) is filed by the complainant Sudarshan Verma, challenging the acquittal of the aforesaid two accused Moti Lal and Baliraj in Sessions Trial No. 177 of 1990. 3) Since all the three cases have arisen out of the same incident, as such, they are taken up together, heard, and being disposed of by a common judgment. 4) The prosecution story (relating to S.T. No. 109 of 1990, in which appellants Sudarshan Verma, Jagdish, Deep, Rajendra and Ganesh Datt were convicted) is that accused Sudarshan Verma was village Pradhan, and he had enmity due to the election with Prabhu Nath (deceased). There were several litigations going on between said parties. On 26.08.1989, at about 06:00 A.M., complainant P.W. 3 Ram Lakhan along with his 5 sons Prabhu Nath (deceased), Moti Lal (P.W. 2), Baliraj (P.W. 1), their servant Bahadur and others were sitting in their floor mill (installed in their house), when accused / appellant Sudarshan armed with country made pistol, Jagdish armed with axe, Deep armed with gun, Rajendra armed with Lathi, and Ganesh Datt armed with Lathi, came there together. They (accused / appellants) started assaulting Prabhu Nath, Moti Lal, Baliraj and others. Accused / appellant Sudarshan fired shot from his pistol. In the incident Prabhu Nath (deceased), Moti Lal (P.W. 2) and Baliraj (P.W. 1) suffered injuries. In the incident, Sudarshan and Deep also suffered injuries. Accused / appellant Sudarshan, who was village Pradhan, went to the police station Rudrapur (earlier Rudrapur was part of District Nainital, now part of District Udham Singh Nagar), and got lodged first information report (check report Ext. B –2) against Prabhu Nath, Moti Lal and Baliraj, on the very day (26.08.1989), at 07:25 A.M., which was registered as Crime No. 583 of 1989, relating to offences punishable under Section 307 and 324 of I.P.C. Subsequent to it, at about 08:10 A.M., on the very day (26.08.1989), P.W. 3 Ram Lakhan giving his version of the incident lodged first information report (Ext. A –1) against accused / appellants Sudarshan, Jagdish, Deep, Rajendra and Ganesh, which was registered as Crime No. 583-A of 1989, relating to offences punishable under Section 147, 148, 149, 307, 324, 323 of I.P.C., at the same police station. Both the crimes were investigated by 6 P.W. 7 Sub Inspector Surendra Singh. Injuries on the person of Prabhu Nath (before his death), P.W. 1 Baliraj and P.W. 2 Moti Lal were recorded by P.W. 6 Dr. A.K. Rana on 26.08.1989, who prepared injury reports Ext. A –8, Ext. A –6 and Ext. A –4, respectively. Thereafter, Prabhu Nath died on the very day (26.08.1989) in the hospital. Police took the dead body of Prabhu Nath in their possession and prepared inquest report (Ext. A –9), and other necessary papers eg. Police form No. 13 (Ext. A –10), letter to the Chief Medical Officer (Ext. A –11), sketch of the dead body (Ext. A –12), and sample seal (Ext. A –13) on 26.08.1989, in the afternoon. The postmortem examination was conducted by P.W. 4 Dr. S.M. Pant on the next day i.e. 27.08.1989, on the dead body of Prabhu Nath, who recorded as many as eight ante mortem injuries, in the autopsy report (Ext. A –2). He (Medical Officer P.W. 4 Dr. S.M. Pant) opined in the report that the deceased had died of shock and haemorrhage due to ante mortem injuries. The Investigating Officer interrogated the witnesses, prepared site plan (Ext. A –14), after inspecting the site. P.W. 5 Inspector Vijendra Kumar Bhardwaj, who completed the investigation in both the cases, filed charge sheet (Ext. A –3) against all the five accused, namely Sudarshan Verma, Jagdish, Deep, Rajendra and Ganesh Datt, for their trial in respect of offences punishable under Section 147, 148, 149, 307, 324, 323 and 302 of I.P.C. (A separate charge sheet was filed 7 against Moti Lal and Baliraj in cross case got registered by Sudarshan Verma). 5) The Magistrate, on receipt of the charge sheets after giving necessary copies to the accused in both the cases, as required under Section 207 of Cr.P.C., appears to have committed the cases to the court of sessions for trial. The trial court after hearing the parties, on 21.08.1990, framed charge of offences punishable under Section 147, 148, 149, 302 read with Section 149, 307 read with Section 149, and 324 read with Section 149 of I.P.C. against all the five accused (present appellants), namely Sudarshan Verma, Jagdish, Deep, Rajendra and Ganesh Datt, in Sessions Trial No. 109 of 1990. All the five pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1 Baliraj (injured eyewitness), P.W. 2 Moti Lal (another injured eyewitness), P.W. 3 Ram Lakhan (complainant and eyewitness), P.W. 4 Dr. S.M. Pant (who conducted postmortem examination), P.W. 5 Inspector Vijendra Kumar Bhardwaj, P.W. 6 Dr. A.K. Rana (who recorded injuries on the person of the injured), and P.W. 7 Sub Inspector Surendra Singh (the Investigating Officer). The oral and documentary evidence was put to the accused under Section 313 of Cr.P.C., in reply to which they alleged that false evidence has been adduced against them. However, it is stated by the accused / appellants Sudarshan Verma 8 and others that there was enmity between the two sides, and on 26.08.1989, Prabhu Nath (deceased), Moti Lal (P.W. 2) and Ram Lakhan (P.W. 3), armed with deadly weapons, attacked them (present appellants) and caused injuries in respect of which first information report was lodged against the deceased (Prabhu Nath), Moti Lal and Baliraj. But, no defence evidence was adduced on behalf of the accused / appellants in Sessions Trial No. 109 of 1990. However, in cross case i.e. Sessions Trial No. 177 of 1990, the defence story of Sessions Trial No. 109 of 1990 was got recorded as prosecution case in the cross case (Sessions Trial No. 177 of 1990). Both the cross cases were tried by the same judge, and both were disposed of by the same court by separate judgments. The trial court (V Addl. Sessions Judge, Nainital) vide impugned judgment dated 21.04.1999, passed in Sessions Trial No. 109 of 1990, found accused / appellants Sudarshan Verma, Jagdish, Deep, Rajendra and Ganesh Datt guilty of charge of offences punishable under Section 147, 148, 302 / 149, 307 / 149 and 324 / 149. After hearing the parties on sentence, each of the convicts (present appellants Sudarshan Verma and others) was sentenced to imprisonment for life under Section 302 / 149 of I.P.C., rigorous imprisonment for a period of seven years under Section 307 / 149 of I.P.C., rigorous imprisonment for a period of one year under Section 324 / 149 of I.P.C., imprisonment for a period of six months under Section 147 of I.P.C., and rigorous imprisonment for a period of 9 one year under Section 148 of I.P.C. Aggrieved by said judgment, Criminal Appeal No. 927 of 2001 (old No. 878 of 1999) was filed before the Allahabad High Court. 6) The first information report from which Sessions Trial No. 177 of 1990 has arisen, was lodged by P.W. 1 Sudarshan Verma as mentioned above, at 07:25 A.M., alleging that on 26.08.1989, at about 06:00 A.M., he along with his nephew Deep was in the field, when Prabhu Nath, armed with country made pistol, Moti Lal armed with sword, and Baliraj armed with some round object (probably hand made grenade), came there. It is alleged in said first information report by Sudarshan Verma that Prabhu Nath fired shot from a country made pistol, which hit on his head. He has further stated that Moti Lal assaulted him with a sword due to which his finger got cut. Injuries of Sudarshan Verma (P.W. 1) and Deep (P.W. 3) were recorded by P.W. 4 Dr. J.P. Arora. Crime was investigated initially by P.W. 6 Sub Inspector Surendra Singh, and subsequently investigation was taken up by P.W. 5 Inspector Vijendra Kumar Bhardwaj. After completion of investigation, the Investigating Officer filed charge sheet against Moti Lal and Baliraj, for their trial in respect of offences punishable under Section 307 / 324 of I.P.C. In said case, after it was committed to the court of sessions, the charge under Section 307 and 324 of I.P.C. was framed against Moti Lal and Baliraj on 10 20th of August 1990, by the trial court. Since the said accused pleaded not guilty in Sessions Trial No. 177 of 1990, P.W. 1 Sudarshan Verma (injured eyewitness), P.W. 2 Virendra Singh (eyewitness), P.W. 3 Deep (injured eyewitness), P.W. 4 Dr. J.P. Arora (who recorded the injuries on person of the injured), P.W. 5 Inspector Vijendra Kumar Bhardwaj, and P.W. 6 Sub Inspector Surendra Singh (who investigated the crime) were got examined. The evidence was put to the accused Moti Lal and Baliraj in Sessions Trial No. 177 of 1990, in reply to which they alleged same to be false, and pleaded that they have been falsely implicated in the crime. It has also been stated by them that on the day of incident it was the complainant Sudarshan, Deep and others, who attacked Prabhu Nath, Moti Lal and Baliraj, in respect of which a cross first information report was lodged. The trial court after hearing the parties found that Sudarshan Verma and his associates were the aggressors, and acquitted the accused Moti Lal and Baliraj from the charge of offences punishable under Section 307 / 324 of I.P.C. Aggrieved by the judgment and order dated 21.04.1999, passed by V Addl. Sessions Judge, Nainital, in Sessions Trial No. 177 of 1990, a Government Appeal No. 2017 of 2001 (old No. 2192 of 1999) was filed by the State, and the Criminal Revision No. 92 of 2001 (old No. 981 of 1999) was filed by the complainant before the Allahabad High Court. The appeals and the revision were received by this court under Section 35 of the U.P. 11 Re-organization Act 2000 (Central Act No. 29 of 2000) for their disposal. 7) Before further discussion, we think it just and proper to mention here the ante mortem injuries recorded by P.W. 4 Dr. S.M. Pant (in S.T. No. 109 of 1990), who prepared autopsy report after postmortem examination on dead body of Prabhu Nath. The ante mortem injuries recorded in autopsy report (Ext. A –2) are being reproduced below:- “ i) Lacerated wound 2 cm X ½ cm X scalp deep on the head, 11 cm above left eyebrow. ii) Multiple abrasions in an area of 30 cm X 10 cm of sizes 0.25 cm to 0.5 cm from left side of face, left side of neck and left upper chest. All injuries painted with some red coloured medicine. iii) Contusion in an area 10 cm X 8 cm around left nipple. iv) Contusion right side of abdomen 12 cm X 15 cm area. 3 cm right to naval. v) Stitched wound with two stitches 4 cm long on the posterior aspect of left upper arm, 1 cm from elbow joint. vi) Stitched wound with 3 stitches 5 cm long, 5 cm above injury No. (v). vii) Lacerated wound 1.5 cm X muscle deep on left middle finger proximal phalanx painted with medicine. 12 viii) Lacerated wound 1 cm X muscle deep on the middle phalanx of index finger.” The Medical Officer (P.W. 4 Dr. S.M. Pant) has opined in the autopsy report that the deceased had died of shock and haemorrhage, as a result of ante mortem injuries. In his statement the said Medical Officer has further stated that the deceased had died a day before the postmortem examination was done. On the basis of this medical evidence it is established on the record that Prabhu Nath died homicidal death on 26.08.1989. 8) It is evident from the record that before his death Prabhu Nath was taken to hospital on 26.08.1989, and his injuries were recorded in Jawahar Lal Nehru Hospital, Rudrapur, on that day, at 09:40 A.M., by P.W. 6 Dr. A.K. Rana, who prepared injury report Ext. A –8 (in S.T. No. 109 of 1990). Said injuries are being reproduced below to show the corresponding ante mortem injuries recorded in the autopsy report, as quoted above:- i) An abrasion 4 cm X 4 cm on top of head 12 cm from left ear root. Fresh bleeding present. ii) A contusion 15 cm X 10 cm on left jaw with multiple punctured wound on whole surface. Advised X-ray skull. Fresh bleeding present. Punctured wound size 0.5 cm X 0.25 cm X not probed (depth) with margins inverted. 13 iii) A contusion 15 cm X 20 cm on left side of whole neck with multiple punctured wound measuring 0.25 cm X 0.25 cm X not probed (depth) with margins of wound inverted. Advised X-ray neck and left shoulder. Fresh bleeding present. iv) An incised wound 7 cm X 0.5 cm X muscle deep on left upper arm, 4 cm above tip of left elbow. Fresh bleeding present. v) An incised wound 6 cm X 0.5 cm x bone deep on tip of left elbow extending upwards. Fresh bleeding present. vi) An incised wound 5 cm X 2 cm X muscle deep on left side base of middle finger. Fresh bleeding present.” The Medical Officer (P.W. 6 Dr. A.K. Rana) has opined in his report Ext. A –8 (in S.T. No. 109 of 1990) with injury Nos. (iv), (v) and (vi) could have been caused by some sharp edged weapon. Injury Nos. (ii) and (iii) were kept under observation. All the injuries were fresh. Injury No. (i) was simple and caused by hard object. The nature of the injuries mentioned above, indicates that injury No. (i) might have been caused with Lathi. Injury Nos. (iv), (v) and (vi) could have been caused by sharp edged weapon. (Injury Nos. (ii) and (iii) quoted above, indicate that these might have been caused by a firearm). 14 9) Now, we have to see whether, the murder of Prabhu Nath was committed by accused / appellants Sudarshan Verma, Jagdish, Deep, Rajendra and Ganesh Datt after they formed unlawful assembly with deadly weapons, or not. 10) P.W. 1 Baliraj, injured eyewitness (in S.T. No. 109 of 1990) states that there was enmity due to election fought between Sudarshan, village Pradhan, and Prabhu Nath. He has further stated that there were four cases pending between the two sides. He has further stated that due to this enmity on 26.08.1989, at about 06:00 A.M., accused / appellants Sudarshan armed with country made pistol, Deep armed with gun, Jagdish armed with axe, Rajendra armed with Lathi, and Ganesh armed with Lathi, came together in the house of Prabhu Nath, where Ram Lakhan (P.W. 3), Moti Lal (P.W. 2), Raghu Nath were also sitting with him (P.W. 1). The witness has further stated that accused Sudarshan and accused Deep fired shots from the firearms possessed by them, while accused Jagdish armed with axe, and Rajendra and Ganesh, armed with Lathies, also took part in the assault. We have already discussed the medical evidence relating to Prabhu Nath which corroborate oral evidence of this witness (P.W. 1 Baliraj). This eyewitness P.W. 1 Baliraj is an injured eyewitness. His presence in his house at 06:00 A.M. is natural. Injury report (Ext. A –6) recorded by P.W. 6 Dr. A.K. Rana on 26.08.1989, shows that he (P.W. 1) 15 had suffered a contusion with punctured wound on the skull with wound margins inverted. In the circumstances, the evidence adduced by this witness cannot be discarded. 11) The prosecution story, in Sessions Trial No. 109 of 1990, is further corroborated by the statement of another injured eyewitness Moti Lal (P.W. 2), who is brother of the deceased Prabhu Nath. He has also narrated the same story as stated by P.W. 1 Baliraj. Statement of this injured eyewitness that accused / appellants Sudarshan Verma, Deep, Jagdish, Rajendra and Ganesh, armed with country made pistol, gun, axe and Lathi, assulated at him (Moti Lal) and Baliraj, and fired shots at them, which hit Prabhu Nath, gets corroboration from the medical evidence on record. P.W. 6 Dr. A.K. Rana has recorded as many as six injuries on the person of Moti Lal on 26.08.1989, at 09:45 P.M. which are recorded in Ext. A –4. The same are being reproduced below:- i) A contusion 6 cm X 4 cm on right side of forehead at hairline with a puncture wound 0.25 cm X 0.25 cm X not probed (depth). Fresh bleeding present. Advised X-ray skull. ii) A contusion 4 cm X 3 cm just below left eyelid with a puncture wound 0.25 cm X 0.25 cm X not probed (depth) in its middle, wound margins inverted. Advised X-ray skull. Fresh bleeding present. 16 iii) Multiple punctured wounds 0.25 cm X 0.25 cm X not probed (depth) on right side of chest frontal aspect and left side chest. Fresh bleeding present. Advised X-ray of chest. iv) A punctured wound 0.25 cm X 0.25 cm X not probed (depth) on right forearm anterior aspect. Advised X-ray forearm. Fresh bleeding present. v) A punctured wound 0.25 cm X 0.25 cm X not probed (depth) on right base of thumb, wound margins inverted. Fresh bleeding present. Advised X-ray right hand. vi) An incised wound 7 cm X 5 cm X muscle deep on right side forearm on upper and proximal ¼ part. Fresh bleeding present.” The Medical Officer (P.W. 6 Dr. A.K. Rana) has mentioned that injury Nos. (i) to (v) were kept under observation. All the injuries were fresh. Injury No. (vi) was simple and appears to have been caused by a sharp edged weapon. Above injuries cannot be said to be self-inflicted injuries. These injuries on the person of P.W. 2 Moti Lal makes this court believe that this witness has actually seen the incident, and his evidence too cannot be discarded lightly. 12) Since there are cross versions of the incident and Sudarshan and Deep have also suffered injuries, we have to examine which of the parties was the aggressor. Before coming to the conclusion, we think it just and 17 proper to mention here the injuries found on the person of Sudarshan Verma by P.W. 4 Dr. J.P. Arora (in S.T. No. 177 of 1990). Said injuries are being reproduced below:- “i) Incised wound 4 cm X 0.25 cm X scalp deep on left side of head parietal region 11 cm left from ear. Blood oozing present. Intervening tissues clean cut. ii) Incised wound 3 cm X 0.25 cm X scalp deep on left side head, 7.5 cm above left ear. Blood oozing present. Intervening tissues clean cut. iii) Incised wound 5 cm X 2 cm X scalp deep on right side of forehead, ½ cm above right eyebrow. Intervening tissues clean cut. Blood oozing present. iv) Incised wound 4 cm X ¼ cm X skin deep on right check, 3 cm in front of left ear. Intervening tissues clean cut. Blood oozing present. v) Incised wound 4 cm X 0.2 cm X scalp deep on left side of head, 6 cm above right eyebrow. vi) Abraded contusion ½ cm X ½ cm on right side of face, 4 cm away from right eye outer angle. vii) Abraded contusion 5 cm X ½ cm on front of neck left side, 3 cm above right clavicle. viii) Incised wound 2 cm X 0.2 cm X bone deep on front of left little finger, 4 cm above root of finger. Intervening tissues clean cut. Blood oozing present. ix) Incised wound 2 cm X 0.2 cm X bone deep on front of left ring finger, 3.5 cm above base. 18 Intervening tissues clean cut. Blood oozing present. x) Incised wound 1 cm X 0.2 cm X skin deep on front of tip of left ring finger. Also blood oozing present. Intervening tissues clean cut. xi) Incised wound 3.75 cm X 0.25 cm X bone deep on ground of left middle finger, oblique, 4.5 cm above base of finger. Intervening tissues clean cut. Blood oozing present. xii) Incised wound 4.5 cm X ½ cm X bone deep on front of left index finger. Oblique. Intervening tissues clean cut. Blood oozing present. xiii) Incised wound 4 cm X 0.2 cm X bone deep on outer side of left hand, 2 cm above index finger, intervening tissues clean cut. xiv) Incised wound 2 cm X 0.2 cm X skin deep – inner side left thumb, root, intervening tissues clean cut. Blood oozing present. xv) Two lacerated wound each size 2 cm X ¾ cm X depth went to deeper tissue and ½ cm X ½ cm X depth went to deeper tissue, ¼ cm apart from each other. Blood oozing present. On right scapular region upper part, in area of 8 cm X 3 cm. xvi) Abrasion 2 cm X 1 cm on right scapular region, 3.5 cm