HIGH COURT OF UTTARAKHAND AT NAINITAL Application no. 556 of 2007 IN Criminal Appeal no. 356 of 2001 (Old no. 2987 of 1986) Keepu @ Kuldeep Singh and others. ---------Accused/appellant. Versus The State. --------- Respondent Sri M.S. Pal, Sr. Counsel assisted by D.N. Sharma, Adv. Sri V.S. Pal, Adv. for the appellant nos. 1,3,4, & 6, Smt. Pushpa Joshi, Adv. for appellant no.5. Sri Harish Pujari, learned Addl. Govt. Advocate for the State Dated: March 10, 2008 Hon’ble Dharam Veer, J. This application has been filed by the appellants in the aforesaid Criminal Appeal, u/s 391 Cr.P.C. with the request to permit the appellants to place additional evidence during pendency of this appeal. It has been averted in the affidavit that at the time of the incident, the appellants, namely, Kippu @ Kuldeep Singh, Anchu Singh and Karnail Singh, were minors, accordingly, the District Judge has sent the applicants/appellants to juvenile jail and has treated them as juvenile. In support of the averments made in the affidavit, the applicants have filed three documents as annexure nos. 1,2 & 3. Annexure no.1 and 2 are the photocopies of the family register issued by Gram Panchayat Vikas Adhikari, Gram Panchayat, Raipur, Development Area Gadarpur, Distt. Udham Singh Nagar which would show that the year of birth of appellant Keepu @ Kuldeep is 1971 and the year of birth of appellant Anchu is 1970. Similarly, annexure no.3 is the photocopy of the School Leaving Certificate issued by Principal, Primary School, Amarpur, Vikas Khand Gadarpur, Udham Singh Nagar, which would show that the date of birth of Karnail Singh is 25.10.1971. Section 391 of the Code of Criminal Procedure, 1973 provides that the Appellant Court may take further evidence or direct it to be taken. Section 391 Cr.P.C. is reproduced hereunder: 391. Appellate Court may take further evidence or direct it to be taken:- 1. In dealing with any appeal under this Chapter, the Appellant Court, if it thinks additional evidence to be necessary, shall record its reason and may either take such evidence itself, or direct to be taken by a Magistrate, or when the Appellant Court is a High Court, by a Court of Session or a Magistrate; 2. When the additional evidence is taken by the Court of Session or the Magistrate, it or he shall certify such evidence to the Appellate Court, and such Court shall thereupon proceed to dispose of the appeal; 3. the accused or his pleader shall have the right to be present when the additional evidence is taken; 4. the taking of evidence under this Section shall be subject to the provisions of Chapter XXXIII, as if it were an inquiry. I have heard Sri M.S. Pal, learned Sr. Adv. appearing on behalf of the applicant/appellants and Sri Harish Pujari, learned A.G.A. for the State and perused the record. In annexure no. 1 of the affidavit descriptions of the appellant Keepu, have been given and in column no. 8, which stands in regard to the date of birth, the year of birth of this applicant has been shown as 1971. Similarly, in annexure no. 2 the year of birth of applicant Anchu Singh is shown as 1970. In annexure no.3 according to school leaving certificate the date of birth of this applicant, namely, Karnail Singh, has been shown as 25.10.1971. The State has also filed a counter affidavit and alongwith the counter affidavit the State has filed certificate of D.S. Kanyal, Village Panchayat Development Officer, Raipur and extract of family register, Village panchayat, Raipur after making verification of applicant/appellant Keepu Singh, Anchu Singh and Karnail Singh which are annexed as annexure nos. 1,2,3,4,5 & 6 respectively. In the counter affidavit it is stated that the State, on its own behalf, has verified the facts above and has admitted the averments mentioned in the affidavit filed by the applicant/appellant Karnail Singh and accordingly has stated, on oath, that the year of birth of appellant Keepu @ Kuldeep Singh is 1971, the year of birth of appellant Anchu Singh is 1970 and year of birth of appellant Karnail is 1971. Keeping in view the above facts and circumstances, the application is allowed. The applicant/appellants are permitted to adduce additional evidence as provided u/s 391 Cr.P.C.. Let the additional documentary evidence, as discussed above be taken on record. The application is disposed of accordingly. (Dharam Veer, J.) NCM: THE HIGH COURT OF UTTARAKHAND AT NAINITAL. (Court’s order whether the case is or not approved for reporting) (Chapter VIII Rule 32 (2) (b) Description of the Case Crl. Appeal No. 356 of 2001 (Old no.2987/1986) Keepu @ Kuldeep Singh & others. … Appellants Vs. State … Respondent Approved for Reporting. __________________ Not approved for reporting Date of Decision 10th March, 2008. Initial of Judge. ------------------ --------- Reserve d Judgment HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal no. 356 of 2001 (Old no. 2987 of 1986) 1. Keepu @ Kuldeep Singh, 2. Burha Singh, Both sons of Prem Singh, 3. Karnail Singh S/o Bachan Singh, 4. Harbansh Singh S/o Tota Singh, 5. Fauji S/o Kartar Singh, 6. Anchu S/o Prem Singh, All R/o Arjunpur, P.S. Rudrapur, District Nainital (Now Udham Singh Nagar). --------- Accused / appellants. Versus The State. --------- Respondent Sri M.S. Pal, Sr. Counsel assisted by D.N. Sharma, Adv. Sri V.S. Pal Adv. for the appellant nos. 1,3,4 & 6, Smt. Pushpa Joshi, Adv. for appellant no. 5. Sri Harish Pujari, learned Addl. Govt. Advocate for the State. Dated: March 10, 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 5th November 1986 passed by the II Addl. Sessions Judge, Nainital in Sessions Trial no. 84 of 1984 State vs. Keepu and others whereby the learned II Addl. Sessions Judge has convicted the appellant/accused persons Keepu alias Kuldeep Singh, Burha Singh, Karnail Singh, Harbansh Singh and Fauji for the offences punishable u/s 147 of The Indian Penal Code, 1860 (hereinafter referred to as the I.P.C.) and sentenced each accused to undergo one year’s rigorous imprisonment and to pay fine to the tune of Rs.500/-. In default of payment of fine, each accused shall have to undergo one month’s simple imprisonment. Again the accused persons Keepu @ Kuldeep Singh, Burha Singh, Karnail Singh, Harbansh Singh and Fauji were convicted for the offence punishable u/s 307 read with Section 149 I.P.C. and have been sentenced to undergo rigorous imprisonment for 4 years and a fine to the tune of Rs. 1,000/- each. In default of payment of fine, each accused shall have to undergo two months’ simple imprisonment. The appellant/accused Anchu is convicted for the offence punishable u/s 148 I.P.C. and sentenced to undergo two years’ rigorous imprisonment and further he is convicted for the offence punishable u/s 307 I.P.C. and sentenced to undergo rigorous imprisonment for seven year. 2. In brief, the prosecution case is this that P.W.-1 Surjan Singh has lodged a First Information Report to the Police Station Rudrapur on 23.07.1983 at about 1:10 p.m. with the allegations that on 23.07.1983 at about 10:30-10:45 a.m. he alongwith his son P.W. 2 Makhan Singh, injured, Sinder Singh, Minder Singh, Labh Singh and his daughter Km. Deep Kaur were planting paddy in the field of Lal Singh. In the meantime, due to the old enmity in regard to a field, the accused persons Anchu, Keepu, Burha Singh sons of Prem Singh alongwith Bareet Singh S/o Nihal Singh, Karnail Singh S/o Bachan Singh, Harbansh Singh S/o Tota Singh, Harbansh Singh S/o Ram Singh and Fauji S/o Kartar Singh had arrived on the field and have started beating Makhan Singh with Lathi and Danda. When his son Makhan Singh started running away from the scene for shelter then the accused Anchu Singh had fired with country made pistol and Makhan Singh received fire arm injuries. One Labh Singh and both the son-daughter of the informant made alarm and after hearing the noise, so many people working in the nearby fields reached at the place of occurrence and the assailants ran away form the place of incident. The informant admitted his son in the hospital at Rudrapur for treatment. With the same allegations the informant Surjan Singh has lodged a report in the Police Station and on the basis of the oral report, the Chik First Information Report Ext. Ka-1 was prepared by Head Moharir Chandra Kiran. Distance of the place of occurrence from police station is shown about 8 Kms. An entry was made in the General Diary, a copy of which is Ext. Ka-6. 3. The injured Makhan Singh was medically examined by Dr. M.N. Joshi, Medical Officer J.L.N. Hospital, Rudrapur on 23.07.1983 at 12:30 p.m. who also prepared injury report. The injury report is marked as Ext. Ka-7. A supplementary medical report was also prepared by the Medical Officer, J.L.N. Hospital, Rudrapur, that supplementary report is Ext. Ka-8 on the record. 4. The investigation of the case was entrusted to P.W.3 S.S.I. Sri J.P.Singh. During the course of the investigation the Investigation Officer recorded statements of the witnesses and prepared a site-plan of the place of occurrence, which is Ext. Ka-2 on the record. The Investigating Officer S.S.I. Sri J.P. Singh, during the course of investigation, has also taken in his possession the bloodstained clay, plain clay & tooth and a Fard in this regard was prepared which is Ext. Ka-3 in the first information report the informant has alleged that the offence was committed by as many as 8 assailants. But the Investigating Officer after completing the investigation, has filed charge sheet on 17.09.1983 against the accused/ appellants Keepu, Burha Singh, Karnail Singh, Harbansh Singh S/o Tota Singh and Fauji for the offence punishable u/s 147,148,149,324,325,307 I.P.C. The I.O. has also filed a separate charge sheet on 21.03.1984 against the accused/appellants Aanchu under the similar Sections of the I.P.C. The charge sheets are Ext. Ka-4 and Ka-5 respectively on the record. 5. Learned Chief Judicial Magistrate, Nainital 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 26.05.1984 u/s 209 Cr.P.C. 6. The learned Sessions Judge, Nainital has transferred the Sessions Trial to the Court of II Addl. Sessions Judge, Nainital for hearing and disposal in accordance with law. Learned II Addl. Sessions Judge, Nainital after hearing the parties on 10.05.1985 framed the charge of offence punishable u/s 148, 307 I.P.C. against the accused/appellant Anchu. On the same day the accused/appellants Keepu @ Kuldeep Singh, Burha Singh, Karnail Singh, Harbans Singh and Fauji were charged for the offence punishable u/s 147, 307 read with Section 149 I.P.C. The charges were read over and explained to the accused persons who pleaded not guilty and claimed to be tried. 7. The prosecution, to prove its case, has examined P.W. 1 Surjan Singh, complainant/ eye-witness, P.W.2 Makhan Singh, injured witness and P.W.3 S.I. J.P. Singh, Investigating Officer of the case. 8. The oral and documentary evidence was put to the accused persons in the form of questions u/s 313 Cr.P.C. who, in reply, denied the allegations made against them and have stated that they have been falsely implicated in the case due to the enmity. 9. After appreciating all the evidence available on record and hearing upon learned counsel for the parties, the learned II Addl. Sessions Judge, Nainital vide impugned judgment and order dated 5th Nov. 1986 has convicted the appellant/accused persons Keepu alias Kuldeep Singh, Burha Singh, Karnail Sing, Harbash Singh and Fauji for the offences punishable u/s 147 I.P.C. and sentenced each accused to undergo one year’s rigorous imprisonment and to pay fine to the tune of Rs. 500/-. In default of payment of fine, each accused shall have to undergo one month’s simple imprisonment. Again the accused persons Keepu @ Kuldeep Singh, Burha Singh, Karnail Singh, Harbansh Singh and Fauji were convicted for the offence punishable u/s 307 read with Section 149 I.P.C. and have been sentenced to undergo rigorous imprisonment for 4 years and a fine to the tune of Rs. 1,000/- each. In default of payment of fine, each accused shall have to undergo two months’ simple imprisonment. The appellant/accused Anchu is convicted for the offence punishable u/s 148 I.P.C. and sentenced to undergo two years’ rigorous imprisonment and further he is convicted for the offence punishable u/s 307 I.P.C. and sentenced to undergo rigorous imprisonment for seven year. Aggrieved with the impugned judgment and order the accused/appellants have preferred the present appeal. 10. I have heard Sri M.S. Pal, learned Senior Counsel assisted by Sri D.N. Sharma Adv., learned counsel for the accused/appellant nos. 1,3,4,6, Smt. Pushpa Joshi, learned counsel for accused/appellant no. 5 and Sri Harish Pujari, learned Addl. Govt. Advocate for the State. 11. The injured Makhan Singh was medically examined by the Medical Officer J.L.N. Hospital, Rudrapur on 23.07.1983 at 12:30 p.m. who also prepared injury report Ext. Ka-7. Before further discussion, it is pertinent to mention the injuries found in the person of the injured Makhan Singh which are reproduced as under:- 1. Transverse lacerated wound 6cm. X ½ cm. X bone deep fresh oozing, 2. Transverse lacerated wound 4cm. X ½ cm. X bone deep oozing present, 3. Transverse lacerated wound 2 cm. Away right angle of mouth- 2cm. X ½ cm. X muscle deep. Oozing, 4. Lacerated wound starting from mid of right lower lip, oblique by downwards upto lower border of Mandible (Right side) X bone deep. Mandible clinically X-Ray advised), 5. Both upper and lower lips swollen (contusion) Red bleeding present. Mouth Upper left canine all incisors. All other teeth of upper jaw missing (right side), 6. Upper and lower left eye lids swollen (black eye) blue in colour. Conjunctral heamorrhage, 7. Lacerated wound (obliquely transverse) Left thinner region. Margins chard and tattooing. 3 cm. X 2 cm. probe can be paned about 1-½ cm. X- X-Ray advised, 8. Multiple abrasions with blackening at top all over left forearm. Swelling all over the palm. Dorsom of left hand. Left forearm, 9. Multiple abrasions on flexor part of the left upper arm just above the elbow point. Fresh oozing tops of abrasions blackish, 10.Multiple abrasions on the left side of abdomen just lateral to the unbelicus. Fresh oozing. 12. In the opinion of the doctor, the injuries nos. 1 to 6 were caused by blunt object and the injuries nos. 7 to 10 were caused by fire arm. The injury no. 4 was found to be grievous in nature. The injuries nos. 7 to 10 were kept under observation. 13. A supplementary medical report was also prepared by the Medical Officer, which is Ext. Ka-8 on the record. The doctor has given the following report:- Injury no. 7 under observation. Wide X-Ray Plate no. 23.7.83 shows Lower end of left ulna no callus seen. A radio opaque shadow seen at mid of left forearm. Injury no. 4 for which X-Ray was advised shows that body of mandible right side no callus seen- most of the teeth of right side maxilla absent. 14. In the opinion of the doctor, the injury no.7 and 4 were grievous in nature and injury no. 7 is confirmed firearm injury. Foreign body left as such. 15. The genuineness of both these papers i.e. Ext. Ka- 7 and Ext. Ka-8 are admitted by the counsel of accused/appellants. 16. The prosecution to prove its case, first of all, has examined P.W.1 Surjan Singh who is the eye witness of the incident and complainant of this case. His statements were recorded before the Court on 01.07.1986. In his examination- in-chief this witness has stated that the incident was said to have been taken place about three years’ back and it was about 11:00 a.m. when he alongwith his son (the injured) Makhan Singh, Minder Singh and her daughter Km. Deep Kaur were planting paddy in the field of Lal Singh of Bindukhera. His other son Chhinder Singh was with them. At this very moment the accused/appellant Anchu, Keepu, Burha Singh, Harbansh Singh, Bareet Singh, Karnail Singh, Fauji carrying Lathies in their hands came there and had started beating to his son Makhan Singh with Lathies and Danda. When they tried to save, they were threatened by the assailants to shot at. The accused Anchu had also fired with country made pistol which caused injuries to Makhan Singh. In the meantime on hearing the shrieks, the persons working in the nearby fields, reached at the place of occurrence and the assailants ran away from the scene. He had taken his son- Makhan Singh to the Govt. Hospital Rudrapur and admitted him there. Thereafter he has lodged First Information Report in the Police Station and on the basis of oral report the Chik report Ext. Ka-1 was prepared, which was signed by him. It is further stated that all the accused/assailants were known to him before this incident. This witness was cross examined by the defence counsel but nothing has come out in his cross examination which may create doubt in his statements. The evidence of this witness on every aspect is reliable, believable and trustworthy. 17. P.W.2 is the injured eye witness Makhan Singh who was examined in the Court on 01.07.1986. This witness has deposed that the incident was taken place about quarter to three years’ back. The incident had taken place at about 10:30- 10:45 a.m. He had gone to Bindukhera to plant paddy in the field of Lal Singh. Minder Singh, Chhinder Singh and his sister were with him. His father was also reached in the field. In the meanwhile the assailants Anchu, Keepu, Bareet Singh, Harbansh Singh, Fauji, Burha Singh, Karnail Singh and another Harbansh Singh had reached at the field armed with Lathies and Dandas and have started beating him. This witness had tried to save himself and started to run. In this process he ran 10-15 steps ahead but the accused Anchu had fired at him, which hit him and he received injuries of the fire arm. His father was also present when the mar-pit was taken place. Due to the said mar-pit his teeth were broken down and his left hand was fractured. This witness has further deposed that his father took him to the hospital where he was medically examined. It is stated that the assailants were known to him before the incident. This witness was also cross examined by the defence counsel but nothing has come out in his evidence which may create doubt in his Statements. The evidence of this witness is reliable, believable and trustworthy. 18. P.W.-3 is S.I. J.P. Singh-I.O. who has stated that the Investigation of this case was entrusted to him and during the course of investigation he recorded the statements of the witnesses and after making spot inspection he prepared a site- plan of the place of occurrence. That site plan is Ext. Ka-2 on the record. Besides it he had taken in his possession the bloodstained clay, plane clay and a tooth from the place of occurrence and sealed them. A Fard in this regard was prepared which is Ext. Ka.3 on the record. After completing the investigation, he filed charge sheet against the accused Keepu, Burha Singh and others on 17.09.1983 and 21.03.1984. The charge sheets are Ext. Ka-4 and Ka-5 on the record. The Chik report Ext. Ka-1 was prepared by Head Moharir Chandra Kiran who has made entries in the G.D. a copy of which is Ext. Ka-6. 19. The oral and documentary evidence was put to the accused persons in the form of questions u/s 313 Cr.P.C. who, in reply, denied the allegations made against them and have stated that they have been falsely implicated in the case due to the enmity. The accused/appellants did not produce any oral or documentary evidence in their defence. 20. Submission of the learned counsel for the appellants is this that as per the evidence produced by the prosecution, the prosecution has failed to prove its case beyond reasonable doubt against the accused/ appellants. But the prosecution has produced the evidence of the eye-witness as well as the evidence of the injured witness. P.W.2 Makhan Singh, injured eye witness in his evidence has deposed that the incident had taken place at about 10:30-10:45 a.m. He had gone to Bindukhera to plant paddy in the field of Lal Singh. Minder Singh, Chhinder Singh and his sister were with him. His father was also reached in the field. Meanwhile, the assailants Anchu, Keepu, Bareet Singh, Harbansh Singh, Fauji, Burha Singh, Karnail Singh and another Harbansh Singh had reached at the field armed with Lathies and Dandas and have started beating him. This witness has tried to save himself and started to run. In this process he ran 10-15 steps ahead but the accused Anchu had fired at him which hit him and he received injuries with the fire arm. His father was also present when the mar-pit was taken place. Due to the said mar-pit his teeth were broken down and his left hand was fractured. This witness has further deposed that his father took him to the hospital where he was medically examined. It is stated that the assailants were known to him before the incident. This witness is the injured and his evidence is quite natural and cogent. This witness has expressed the entire episode before the Court below step-by- step. Thus, the evidence of P.W.2 Makhan Singh cannot be doubted. The testimony of the injured witness is fully corroborated with the evidence of other witness i.e. P.W.1 Surjan Singh who was present at the time, date and place of occurrence. The prosecution has produced evidence of P.W.1 Surjan Singh, the eye- witness, who has also stated that the incident was taken place at about three years’ back and it was about 11:00 a.m. when he alongwith his son Makhan Singh, Minder Singh and her daughter Km. Deep Kaur were planting paddy in the field of Lal Singh of Bindukhera. His other son Chhinder Singh was with them. At this moment the accused/appellant Anchu, Keepu, Burha Singh, Harbansh Singh, Bareet Singh, Karnail Singh, Fauji carrying Lathies in their hands came there and had started beating to his son Makhan Singh, they were threatened by the assailants to shoot at. It is stated that the accused Anchu had fired with country made pistol which caused injuries to Makhan Singh. The persons working in the nearby fields reached at the place of occurrence and the assailants ran away from the scene. This witness had taken his son- Makhan Singh to the Govt. Hospital Rudrapur and admitted him there. Thereafter this witness has lodged First Information Report in the Police Station Rudrapur. 21. The evidence of P.W.1 and P.W.2 is further gets corroboration with the injury report of injured Makhan Singh prepared by the Medical Officer which illustrate that as many as 10 injuries were found on the person of the injured Makhan Singh on the said date and time. The doctor has further opined that the injuries nos. 1 to 6 were cussed by blunt object and the injuries nos. 7 to 10 were caused by firearm. The doctor has opined that the injuries nos. 4 and 7 were grievous in nature and the injury no.7 is confirmed firearm injury. 22. From the material available on record and the evidence discussed above; the prosecution has proved its case beyond reasonable doubt that on 23rd July 1983 at about 10:45 a.m. in jungle village Bindukhera within the Police Station Rudrapur accused/appellant Anchu was a member of an unlawful assembly and in prosecution of the common object of such assembly caused bodily injuries to Makhan Singh and committed the offence of rioting and on that date, time and place the accused/appellant Anchu was armed with deadly weapon i.e. the country made pistol and inflicted gun shot injuries to Makhan Singh with such intention,