Reserved Judgment HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal no. 594 of 2001 (Old no. 413 of 1989) Mohan Singh S/o Sri Thagu Singh, R/o village Sendri, Patti Chauras, District Tehri Garhwal. ------- Accused/appellant. Versus The State. ------- Respondent Sri Shudhanshu Dhulia, learned Sr. Counsel assisted by Sri Rajendra Kotiyal, learned counsel for the appellant, Sri Harish Pujari, learned Addl. Govt. Advocate for the State. Dated: June 26, 2008 Hon’ble Dharam Veer, J. This appeal preferred u/s 374(2) of The Code of Criminal Procedure, 1973 (hereinafter referred to as the Cr.P.C.) is directed against the judgment and order dated 20th January 1989 passed by learned Sessions Judge, Tehri Garhwal in Sessions Trial no.14 of 1988 State vs. Mohan Singh, whereby the learned Sessions Judge has convicted the accused/appellant Mohan Singh for the offence punishable u/s 304 Part-II of The Indian Penal Code, 1860 (hereinafter referred to as the I.P.C.) and 323 I.P.C. and sentenced him to undergo rigorous imprisonment for a period of 5 years’ for the offence punishable u/s 304 Part-II I.P.C. and one month’s rigorous imprisonment for each on both the counts for the offence punishable u/s 323 I.P.C. It was further directed that all these sentences shall run concurrently. 2. I have heard Sri Shudhanshu Dhulia, learned Senior Counsel assisted by Sri Rajendra Kotiyal, learned counsel for the accused/appellant and Sri Harish Pujari, learned Addl. Govt. Advocate for the State and also perused the record of the Trial Court and other relevant papers. 2 3. The prosecution case, in brief, is that on 10.04.1988 PW-4 complainant Girdhari Singh lodged a written report Ext. Ka-2 at Police Station Kirtinagar, Tehri Garhwal with the averments that on the fateful day at 10:00 a.m. a quarrel had taken place in between the accused Mohan Singh and Magan Singh (since deceased). The accused Mohan Singh has taken him to his house and told that Magan Singh had broken slates of his house. On this, the complainant told him to keep ready the witnesses and lodge a report. The complainant also asked that he would certify when report would be lodged. Thereafter he left the village. When he returned above at about 10:45 a.m., he saw that blood was oozing out from the head of Magan Singh who was seriously injured and unconscious. Seeing which he rushed to the Police Station for lodging a report. On the basis of the written report Ext. Ka-2, the Chik report Ext. Ka-5 was prepared by Constable Clerk Jawahar Singh and a case crime no. 27 of 1988 u/s 308 I.P.C. in Police Station Kirtinagar, was registered against the accused/appellant on 10.04.1988 at 12:30 p.m. and an entry in regard to the crime was made in the G.D. a copy of which is Ext. Ka-6. 4. The investigation of the case was entrusted to PW-8 S.O. Karan Singh, Police Station Kritinagar, who during the course of investigation recorded statement of the witnesses and after making spot inspection, prepared site plan Ext. Ka-7 on 10.04.1988. On the same day, he collected plain clay and bloodstained clay from the site and prepared recovery memo Ext. Ka-8, besides it he recovered a bloodstained Chain and prepared recovery memo Ext. Ka-9. On this very day, the Investigating Officer, after appointing PANCHAS, has conducted inquest on the dead body of Magan Singh and prepared inquest report Ext. Ka-10. The I.O. has also prepared Police Form no. 13 Ext. Ka-11, Photo Lash Ext. Ka-12. He sealed the dead body of Magan Singh and sent it for postmortem vide 3 letter Ext. Ka-13. He also took bloodstained DHOTI Ext.1 of Smt. Sukhari W/o Magan Singh (deceased) and prepared memo Ext. Ka-14 in this regard. Ext. Ka-15 is the copy of RAPAT which bears entry in regard to conversion of crime by which the crime was converted from Section 308 I.P.C. into 302 I.P.C. Autopsy on the dead body of Magan Singh was conducted by PW-1 Dr. N.K. Saxena, on 12.04.1988 at 10:30 a.m. who prepared postmortem report Ext. Ka-1. The injured Thaggu Singh and Sukari were sent for medical examination. PW-5 Dr. Arun Kumar on 11.04.1988 at 9:45 a.m. at Primary Health Centre, Kritinagar has examined Smt. Sukari Devi and prepared medical report Ext. Ka-3. On the same day at 10:15 a.m. PW-5 Dr. Arun Kumar also examined the injured Thaggu Singh and prepared medical report Ext. Ka-4 in this regard. The recovered articles i.e. Dhoti, Pants, Jersey, Underwear, Baniyan, Scarf, Bloodstained clay and chain were sent for chemical examination and report of Joint Director, Forensic Lab, Agra Ext. Ka-17 was received. After completing investigation, the Investigating Officer PW-8 S.I. Karan Singh on 07.05.1988 submitted charge sheet Ext. Ka-16 against the accused u/s 302/323 I.P.C. 5. Learned Chief Judicial Magistrate, Tehri on receipt of the charge sheet, after giving necessary copies to the accused as required u/s 207 Cr.P.C., committed the case to the Court of Sessions for trial on 02.08.1988. 6. On 16.08.1988, the learned Sessions Judge, Tehri Garhwal after hearing the parties framed the charge of offence punishable u/s 302, 323 I.P.C. against the accused Mohan Singh. The charge was read over and explained to the accused who pleaded not guilty and claimed to be tried. 7. In order to prove its case, the prosecution has examined PW-1 Dr. N.K. Saxena, who has conducted autopsy on the dead body of Magan Singh, PW-2 Thaggu Singh-injured eye witness, 4 PW-3 Sukari Devi-injured eye witness, PW-4 Girdhari Singh- Pradhan who lodged the F.I.R., PW-5 Dr. Arun Kumar Rai, Medical Officer who has examined the injured Sukari Devi and Thaggu Singh, PW-6 Constable Dhanushvir Singh, PW-7 Constable Dheeraj Singh and PW-8 S.I. Karan Singh, the Investigating Officer. 8. The oral and documentary evidence was put to the accused in the form of questions u/s 313 Cr.P.C. who, in reply, denied the allegations made against him and has stated that he has been falsely implicated in the case. In reply to one question put up before him, the accused/appellant has stated that he had undergone family planning operation in the year 1983. A son was born to his wife Bhuvna Devi in the year 1987 who was born by her union with the deceased Magan Singh. She had illicit relations with the deceased. On the preceding night of the death of Magan Singh, he had damaged his house, the report of which was given to the Pradhan Girdhari Singh. In the next morning, he had a quarrel with Magan Singh regarding his wife. He was threatened by the deceased Magan Singh to kill and he showed intention to produce further children from his wife. He rushed upon him and fall him down. Then he wielded a LATHI lying nearby in self-defence. No oral evidence was led by the accused/ appellant. 9. After appreciating all the evidence available on record and hearing the learned counsel for the parties, the learned Sessions Judge has convicted the accused/appellant Mohan Singh for the offence punishable u/s 304 Part-II of I.P.C. and 323 I.P.C. and sentenced him to undergo rigorous imprisonment for a period of 5 years’ for the offence punishable u/s 304 Part-II I.P.C. and one month’s rigorous imprisonment for each on both the counts for the offence punishable u/s 323 I.P.C. It was further directed that all these sentences shall run concurrently. Aggrieved with 5 the conviction and sentence awarded to him, the accused/ appellant has preferred this appeal. 10. Before further discussion, it is pertinent to mention the injuries found on the person of the injured PW-3 Sukari Devi. PW-5 Dr. Arun Kumar on 11.04.1988 at 9:45 a.m. at Primary Health Centre, Kritinagar has examined Smt. Sukari Devi and prepared medical report Ext. Ka-3. The following injuries were found on the body of the injured Sukhari Devi:- i. Lacerated wound of 4cm.x 4½ cm. and 1½ cm. depth on the left arm on the anterior aspect, 11cm. from the wrist joint (left), ii. Abrasion 1cm. x ½ cm. on the scalp right side, 8cm. from the root of right ear. In the opinion of the Medical Officer, marks of bloodstains also present on the clothing. Injury no. 1 has been caused by some blunt object which may be very heavy in nature and the object may be rounded. Injury no.-2 is caused during struggle. The Duration of the wounds is near about 24 hrs. 11. On the same day at 10:15 a.m. PW-5 Dr. Arun Kumar also examined the injured PW-2 Thaggu Singh and prepared medical report Ext. Ka-4 in this regard. The following injuries were found on the body of the injured Thaggu Singh:- Painful swelling of the right knee joint with marks of bruise 5cm. x 2cm. In the opinion of the Medical Officer, the injury may be caused by some blunt object, which may be heavy in nature. 12. Autopsy on the dead body of Magan Singh was conducted by PW-1 Dr. N.K. Saxena, on 12.04.1988 at 10:30 a.m. who prepared postmortem report Ext. Ka-1. The following ante- mortem injuries were found on the dead body of the deceased Magan Singh:- 6 i. Lacerated wound 1cm. x 2cm. x muscle deep on right side eyebrow. Clotted blood present, ii. Lacerated wound 2cm. x 1cm. on back of neck with decomposed fluid coming out, iii. Lacerated wound 5cm. x 3cm. on left side of nose and ear, clotted blood present, iv. Lacerated wound 5cm. x 2½ cm. bone deep on the top of the scalp, clotted blood present, v. Lacerated wound 2cm. x 2cm. x bone deep on right parietal bone, vi. Lacerated wound 2cm. x 2½ cm. x bone deep on left side parietal bone, vii. Lacerated wound 2cm. x 1½ cm. bone deep on the occipital bone, viii. Abrasion on right side knee, In the opinion of the Medical Officer, the cause of death due to heamorrhage and shock by the injuries nos. 1 to 7 by blunt object. Duration of death about 52 hours as decomposition. On internal examination fractures on parietal and frontal bone were found. Fuel gas was found on both large and small intestines. Besides it urine was found present in the bladder. Cause of the death was shock and haemorrhage and duration was 52 hrs'. 13. In the Chemical Examiner report Ext. Ka-17 it was found that the clay, Dhoti, Chain and Scarf contained human blood. All the articles Ext. 1 to 8 were found bloodstained. 14. Now this Court has to find out as to whether the prosecution has successfully proved its case beyond doubt against the accused/appellant? In order to prove its case, the prosecution, first of all, has examined PW-1 Dr. N.K. Saxena, Medical Officer, Suman Hospital, Narendra Nagar who has conducted autopsy on the dead body of the deceased Magan Singh. This witness has stated that on 12.04.1988 he was posted as such. On that day at 10:30 a.m. he conducted postmortem on the dead body of the deceased Magan Singh who was brought by Constable Nand Ram and Dheeraj Singh in the sealed condition. A sample seal was present and the seal was found 7 intact on verification. He found as many 8 ante-mortem injuries on the body of the deceased Magan Singh as mentioned in para- 12 of the above. The doctor has opined that the injuries could have been caused on 10.04.1988 at 9-10 a.m. and can be caused by beating with a wooden rod (DANDA). He proved the postmortem report Ext. Ka-1. It was further opined that the injuries found on the person of the deceased were sufficient to cause death. 15. PW-2 is Thaggu Singh who also got injuries in this incident. He deposed that the accused Mohan Singh is his son. The deceased Magan Singh was his elder son. The incident was of 8 months’ before in between 9-10 a.m. He, the deceased Magan Singh, Sukari Devi w/o Magan Singh (deceased) and his granddaughter were present at the threshing floor (KHALIHAN). None else was present there. Magan Singh and the accused Mohan Singh were exchanging abusive languages. He tried to convince, but they did not pay heed. In the meanwhile, the accused Mohan Singh brought a wooden rod and on his witnessing the accused wielded the rod on the head of the Magan Singh, the accused also inflicted other injuries due to which Magan Singh succumbed to the injuries and could not even cry, blood oozed out from his nose and mouth. The accused Mohan Singh first wielded wooden rod on the head of Magan Singh and again he started beating him on which he intervened and on this process he also received injuries. He has further stated that the quarrel in between the accused Mohan Singh and the deceased Magan Singh was as usual. This witness was cross-examined by the defence counsel but nothing has come out in his evidence, which may create any doubt. The evidence of this witness on each and every aspect is reliable, believable and trustworthy. 16. PW-3 is Smt. Sukari Devi W/o late Magan Singh. She had deposed that the accused Mohan Singh is her husband’s 8 younger brother (DEVER). The incident was of 8 months’ before at 9-10 a.m. She, her husband Magan Singh (deceased), Thaggu Singh-her father-in-law and her daughter Kadambari were present at the threshing floor (KHALIHAN), which is located besides her house. House of the accused Mohan Singh is near the threshing floor. On that day the accused Mohan Singh came at the threshing floor and he started abusing Magan Singh. Her father-in-law tried to persuade, but the accused did not bother about. The accused brought a rod from inside his house and wielded it on the head of Magan Singh. He inflicted other injuries too. She and her father-in-law also received injuries in the process of intervene. Magan Singh died instantaneously due to the same injuries which were caused by the accused Mohan Singh in their presence. Her and her father- in-law’s medical was done at Kirtinagar. Relation in between the accused Mohan Singh and deceased Magan Singh were strained. Mohan Singh used to hurl abuses. Preceding the murder; both were confined once in police lockup. The accused Mohan Singh often used to say to Magan Singh that his son is born as a result of his (Magan Singh’s) relation with his wife. At the time of the said occurrence, the boy was 6 month’s old. Kadambari aged about 10 years’ and Matvari aged about 12 years’ were the witnesses of the incident. Dhoti Ext.-1 belongs to her and the Pant Ext.-2, Sweater Ext.-3, and Underwear Ext.-4 belonged to her late husband. Those are the clothes which they wore at the time of the incident. Baniyan Ext.-5, Scarf Ext.-6 also belonged to her husband. The Chain Ext.-7 was the chain which she wore. These clothes were bloodstained at the time of the incident. Her blood was oozed out. Blood was also oozed out of the wounds of her husband Magan Singh. 17. PW-4 is Girdhari Singh-Pradhan of the village who lodged the F.I.R., who has stated that he wrote the report of the incident which took place in between the accused Mohan Singh 9 and deceased Magan Singh. He proved the written report Ext. Ka-2, which he lodged at Police Station Kirtinagar. 18. PW-5 is Dr. Arun Kumar Rai, Medical Officer, who has deposed that on 11.04.1988 he was posted as in-charge Medical Officer at Primary Health Centre, Kirtinagar. On that day at 9:45 a.m. he examined medically to Smt. Sukari Devi W/o Magan Singh and found the injuries mentioned in para-10 of the above. Her clothes were bloodstained. The injury no.1 was caused by a heavy blunt object i.e. thick wooden rod. The injury no. 2 was small abrasion. These injuries could possibly be caused on 10.04.1988 at 10:00 a.m. He proved the injury report Ext. Ka-3. On the same day he examined medically to Thaggu Singh S/o Bala Singh and found the injuries mentioned in para- 11 of the above. He opined that this injury could possibly be caused on 10.04.1988 at 10:00 a.m. by a thick rod. He proved the injury report Ext. Ka-4. 19. PW-6 is Constable 229 Dhanush Veer Singh, who has stated that on 11.04.1988 he was posted at Police Station Kirtinagar. On that day he took the injured persons- a woman and Thaggu Singh to Govt. Hospital Kirtinagar from village Sentri whose medical was conducted by Dr. A.K. Rai. 20. PW-7 is Constable-170 Dheeraj Singh, who has stated that in the month of April 1988 he was posted at P.S. Kirtinagar. On 11.04.1988 he took the dead body of the deceased Magan Singh for postmortem to the Govt. Hospital, Narendra Nagar. The body was kept in sealed position and in the sealed position he handed over the same at the hospital, till then the seal was intact and no one was allowed to touch it. 21. PW-8 is the Investigating Officer S.I. Karan Singh, who has deposed that on 10.04.1988 he remained posted as Station Officer of Police Station Kirtinagar till the date of his 10 deposition. The case was registered on the written report (Ext. Ka-2) lodged by Girdhari Singh and on that basis the Chik F.I.R. Ext. Ka-5 was prepared on 10.04.1988 by Constable Clerk Jawahar Singh. Entry in the G.D. at Rapat no.-16 was made by the Constable Clerk, a copy of which is Ext. Ka-6. He started investigating the matter on the same day. During investigation, he recorded statement of the witnesses. After making spot inspection, he prepared the site-plan of the place of occurrence Ext. Ka-7. He took sample of the bloodstained clay and plain clay from the spot and after sealing it, he prepared FARD Ext. Ka-8. He also took in his possession one chain from the spot and prepared FARD Ext. Ka-9. After appointing PANCHAS, he prepared inquest report Ext. Ka-10. He proved the Challan Lash Ext. Ka-11, Photo Lash Ext. Ka-12, and application for conducting postmortem Ext. Ka-13. Besides it he took in his possession bloodstained Dhoti Ext.-1 of Sukari Devi and prepared FARD Ext. Ka-14. He sent the dead body of Magan Singh through Constables Nand Lal and Dheeraj Singh for postmortem. He proved the entry in the G.D. Ext. Ka-15. On 11.04.1988 he sent the injured Thuggu Singh and Sukari Devi for medical examination. On 14.04.1988, he recorded the statement of the accused. On 19.04.1988, he sent the recovered items to Chemical Examiner. The bloodstained clay and plain clay are Ext- 7 & 8 respectively. Dhoti is Ext.-1 and the chain is Ext.-9. On 06.02.1988, he put Magan Singh (deceased) and the accused Mohan Singh inside the lockup for the dispute arose in between them. After completion of the investigation, he submitted charge sheet Ext. Ka-16. 22. The oral and documentary evidence was put to the accused in the form of questions u/s 313 Cr.P.C. who, in reply, denied the allegations made against him and has stated that he has been falsely implicated in the case. In reply to one question put up before him, the accused/appellant has stated that he had undergone family planning operation in the year 1983. A son 11 was born to his wife Bhuvna Devi in the year 1987 who was born by her union with the deceased Magan Singh. She had illicit relations with the deceased. On the preceding night of the death of Magan Singh, he had damaged his house, the report of which was given to the Pradhan Girdhari Singh. In the next morning, he had a quarrel with Magan Singh regarding his wife. He was threatened by the deceased Magan Singh to kill and he showed intention to produce further children from his wife. He rushed upon him and fall him down. Then he wielded a LATHI lying nearby in self-defence. No oral evidence was led by the accused/ appellant. 23. Learned Senior Counsel for the accused/appellant Sri Shudhanshu Dhulia, has contended that from the evidence produced by the prosecution, no case is proved beyond reasonable doubt against the accused/appellant for the offence punishable u/s 304 Part-II, 323 I.P.C. But, from the evidence produced by the prosecution the offence punishable u/s 304 Part-II, 323 I.P.C. is proved against the accused/ appellant Mohan Singh, as the principal witness of the alleged incident PW-2 Thaggu Singh has categorically stated that on the date of incident Magan Singh and the accused Mohan Singh were exchanging abusive languages. He tried to convince, but they did not pay any heed. In the meanwhile, the accused Mohan Singh brought a wooden rod and he wielded the rod on the head of the Magan Singh due to which Magan Singh succumbed to the injuries, blood oozed out from his nose and mouth. The accused Mohan Singh first wielded wooden rod on the head of Magan Singh and again he started beating him on which he intervened and on this process he also received injuries. He has further stated that the quarrel in between the accused Mohan Singh and the deceased Magan Singh was as usual. Evidence of PW-2 Thaggu Singh- injured is fully corroborated with the evidence of PW-3 Smt. Sukari Devi, who has also received injuries in the incident, who has stated that on the fateful day 12 the accused Mohan Singh came at the threshing floor (KHALIHAN) and he started abusing Magan Singh. Her father- in-law tried to persuade, but the accused did not pay any heed. The accused Mohan Singh brought a rod from inside the house and wielded it on the head of Magan Singh. He inflicted other injuries too. She and her father-in-law also received injuries in the process of intervene. Magan Singh died instantaneously due to the injuries. Her and her father-in-law’s medical was done at Kirtinagar. Relation in between the accused Mohan Singh and deceased Magan Singh were strained. Mohan Singh used to hurl abuses. Preceding the murder; both were confined once in police lockup. The accused Mohan Singh often used to say to Magan Singh that his son is born as a result of his relation with his wife. Evidence of PW-2 Thaggu Singh further gets corroboration from the evidence of PW-1 Dr. N.K. Saxena, who has conducted postmortem of the dead body of deceased Magan Singh and found as many as 8 ante-mortem injuries on his body. Similarly the evidence of PW-2 Thaggu Singh gets support from the evidence of PW-5 Dr. Arun Kumar who has medically examined the injured Thaggu Singh and Smt. Sukari Devi on the next day of the incident. Thus, the prosecution has successfully proved that on 10.04.1988 at about 10:00 a.m., near the house of deceased Magan Singh in village Sendri, Patti Chauras, Police Station Kirtinagar, District Tehri Garhwal the accused/appellant Mohan Singh inflicted injuries to his brother Magan Singh and committed offence of culpable homicide not amounting to murder. Further on the said date, time and place the accused/appellant voluntarily caused hurt to Thaggu Singh and Smt. Sukari Devi when they rushed to save Magan Singh from the accused. Thus, as per evidence discussed above, the offence punishable u/s 304 Part II and 323 I.P.C. is proved against the accused/appellant and the conviction of the accused/appellant as held by the learned Sessions Judge is justified and based upon the evidence available on the record, which does not warrant interference at this stage. The accused/ 13 appellant could not show as to what was the reason to implicate him falsely, leaving behind the real culprits. 24. Learned Senior Counsel for the accused/appellant has submitted that the accused/appellant has a right of self defence. He has submitted that PW-2 Thaggu Singh, who has been recalled for cross examination, has stated that when he had gone on the place of occurrence then a quarrel was going on in between Magan Singh and Mohan Singh in regard to the birth of child born illegally. Magan Singh told the accused Mohan Singh that he would kill him and will also keep his wife with him thereafter. Magan Singh forcibly put down the accused Mohan Singh on the