NO. 10- COURT’S ORDER WHETHER THE CASE IS OR IS NOT APPROVED FOR REPORTING [ Chapter VIII, Rule 32(2) (b)] Description of Case Criminal Appeal No. 253 of 2001 (Old Criminal Appeal No. 1955 of 1985) 1. Uttam Singh 2. Har Singh Vs. State of U.P. A.F.R. (Approved for Reporting) Not Approved for Reporting (B.S. Verma, J. ) (Irshad Hussain, J.) Date December 09, 2005 Initials of Judge. Reserved Judgment THE HIGH COURT OF UTTARANCHAL AT NAINITAL. Criminal Appeal No. 253 of 2001 Old No. Criminal Appeal No. 1955 of 1985 1. Uttam Singh, 2. Har Singh,Sons of Pratap Singh, Both residents of village Dhyuli-Aroli, Patti Malla Salam, District Almora. …Appellants. Versus State of Uttar Pradesh. …Respondent. Sri B.S. Adhikari, Adv., learned counsel for the appellants-accused. Sri G.S.Sandhu, Learned A.G.A. for the respondent-State. Coram : Hon’ble Irshad Hussain, J. Hon’ble B.S.Verma, J. Dated December 09, 2005 (Per Hon’ble B.S.Verma, J.) This Criminal Appeal under Section 374(2) of the Code of Criminal Procedure is directed against the judgment and order of conviction, dated 23-7-1985 passed by the then Sessions Judge, Almora, in Session Trial No. 2 of 1985, State Vs. Uttam Singh and 3 others, whereby the accused-appellants were found guilty of the offence punishable under Sections 302/34 and 307 of the Indian Penal Code and were accordingly convicted and sentenced to life imprisonment and four years’ R.I. respectively. Accused-appellant Uttam Singh was further convicted and sentenced under Section 450 I.P.C. to undergo three years’ R.I. The sentences were ordered to run concurrently. Co-accused Jagat Singh and Bir Ram were acquitted of the charges levelled against them under Sections 302/34 and 307/34 I.P.C. 2. Brief facts of the case emerging from the record are that the complainant Jagat Singh (PW 1) were resident of village Dhuli- Dhauni. Smt. Debuli Devi is his wife and Dewan Singh deceased was their son. Accused Uttam Singh and Har Singh are real brothers. Co-accused Jagat Singh was their cousin. Accused- appellants are also residents of the same village. The agricultural fields of Jagat Singh as well as accused-appellant Uttam Singh and Har Singh lay in the same village Dhyuli. In nutshell the prosecution story as unfolded from the evidence may be narrated hereunder for better appreciation of the case. 3. According to prosecution story on 15.10.1978, goat of Jagat Singh injured grazed the field of accused Uttam Singh and Har Singh and caused some damage to the standing crop. On that count, wife of accused Jagat Singh hurled abuses of the wife of Jagat Singh and there was exchange of abuses from both the sides. Dungar Singh Pradhan (P.W.3) intervened and the wife of accused Har Singh went away. On the following day, i.e. 16.10.83, wife of accused Har Singh started abusing Smt. Debuli Devi. At that time, she (Debuli Devi) was present in the outer Angan of the house and was cleaning the Angan and Jagat Singh was working in the outer room of the first floor of house called ‘Chakh’. He was unfolding the piles of ‘Madua’ for thrashing the same. Wife of Har Singh, standing near the temple of Haru deity, started abusing Smt. Debuli Devi. House of accused in situate nearby. Exchange of abuses took place from both the sides as Smt. Debuli Devi went on shouting in the same manner. Jagat Singh asked his wife not to do so, who kept mum. Lateron, accused Uttam Singh and Har Singh armed with ‘Khukaris’ went to the house of Jagat Singh. Uttam Singh entered the ‘Chakh’ of Jagat Singh and blow of Khukari directed on his head was warded off by means of the wooden slate used by children whereas accused Har Singh assaulted Smt. Debuli Devi by Khukari wielded by him. Thereafter accused came out of the house of victims and went in the field situated in the rear of the house of the victims. Jagat Singh and his wife Smt. Debuli Devi also proceeded towards field and saw that accused Uttam Singh, Har Singh, Jagat Singh and Bir Ram had surrounded their son Dewan Singh. Uttam Singh and Har Singh were wielded Khukaris and Jagat Singh s/o Madho Singh and Bir Ram were standing nearby having stones in their hands. When complainant Jagat Singh shouted, accused Uttam Singh assaulted him with Khukari again and Har Singh caused injuries to Smt. Debuli Devi. Accused Jagat Singh caught hold of Dewan Singh, while accused Uttam Singh and Har Singh gave Khukari blows to him. Hearing the alarm raised by Jagat Singh and his wife, Dungar Singh, Amar Singh, Jaman Singh and Shiv Singh reached the scene of occurrence and intervened to rescue the victims. Accused persons then left the place of occurrence. All the three persons, Jagat Singh, his wife Debuli Devi and son Dewan Singh suffered injuries and had fallen in the field. They were taken for medical examination and treatment. 4. Patwari Madhan Singh (PW 8) was available in the village Dhuli-Dhauni on account of some official work. Dungar Singh (PW 3), the then Pradhan of the village concerned, lodged a written report Ext. Ka-1 with the Patwari Circle Sangarh stating therein that on 16-10-1983 at about 1.30 p.m., Uttam Singh, Har Singh,Jagat Singh, s/o Madho Singh and Bir Ram assaulted Jagat Singh, his son Diwan Singh and his wife Debuli Devi by Khukari causing severe injuries to them and their lives are stake. They were given 2-3 blows by Khukaris and then accused ran away to their houses. On hearing hue and cry, he and Amar Singh, Jamas Singh, Keshar Singh and Kishan Singh assembled there and intervened else the accused would have finished them. Accordingly Check F.I.R. Ext. Ka-18 was prepared by the Patwari on the same day. Since the condition of the injured was critical, Patwari arranged for taking them to the hospital. When they were sent to hospital Patwari took Dungar Singh and others to the place of occurrence. Patwari recorded the statement of Dungar Singh and made inspection of the site. He found blood on the door-step of the house and right upto the field of injured Jagat Singh. He also found two Chappals, one cover of Khukari and one Jhola in that field. He took in his possession these articles as well as sample of blood stained and plain mud and prepared Fard Ext. Ka-19. The Naib Tehsildar and Kanungo were informed about the arrest of the accused persons. Dewan Singh injured succumbed to his injuries while being taken to the hospital while injured Jagat Singh and his wife Smt. Debuli Devi were medically examined by P.W. 6 Dr. L.S.Kanyal on 16-10-1983 between 9-10 p.m. and 9-30 p.m. Injured Jagat Singh was medically examined at 9-10 p.m. The following injuries were found on his person:- 1. Incised wound 6 cm x 1.5 cm x bone deep over vertex 9 cm above middle left eye brow and 9 cm above the top of left ear. Blood clot present. 2. Incised wound 5 cm x 0.5 cm x bone deep 2 cm medial to injury no.1. 3. Incised wound 6 cm x 1 cm x bone deep over vertex, 10 cm above the middle of right eye brow and 12 cm above the top of right ear. 4. Incised wound 3 cm x 2 cm x bone deep on left occipital region, 4 cm above the left mastoid process, transversally place, bleeding present. 5. Incised wound 3 cm x 1 cm 0.5 cm, 2 cm below the outer border of left scapula. 6. Incised wound 6 cm x 0.2 cm x 0.2 cm, 10 cm below the left shoulder. 5. All the injuries were kept under observation and X-ray was advised. The doctor opined that the injuries were caused by some sharp-edged weapon and were about half day old. Dr. Kaniyal proved the injury report Ext. Ka-14. He also examined the injuries of Smt. Debuli Devi at 9-30 p.m. and found the following injuries on her person. 1. Incised wound 6 cm x 1.5 cm x bone deep over vertex, 11 cm above the middle of right eye brow and 10 cm from the top of right ear. Fresh blood clot present. 2. Incised wound 2 cm x 0.5 cm x muscle deep on the dorsal aspect of left middle finger 0.5 cm below the nail bed. 3. Incised wound 2 cm x 0.3 cm x muscle deep on the dorsal aspect of left ring finger, 1 cm below the nail bed. 4. Contusion 5 cm x 3 cm reddish in colour in front of right thigh upper part. 6. In the opinion of the doctor, injuries no. 1 to 3 were caused by some sharp-edged weapon and injury no.4 was caused by some blunt object. Injuries no. 1 to 3 were kept under observation and X-ray was advised. In the opinion of the doctor, all the injuries were half-day old. PW 6 proved the injury report Ext. Ka-15, prepared by him. In his testimony, Dr. L.S. Kanyal PW 6 stated that the X-ray of the left hand of Smt. Debuli Devi was taken on 20.10.83, X-ray plate thereof is Ext. 15 and Ext. Ka- 16 is the X-ray report given by Dr. A.P.Pande, Radiologist of the District Hospital, Almora. In the X-ray, fracture of distal phalange of middle finger of left hand was noticed. 7. Autopsy on the dead body of Dewan Singh was conducted by Dr. M.L.Agarwal, P.W.7, on 17-10-1983 at 1.00 p.m. who found the following ante mortem injuries:- 1. Incised wound 7.5 cm x 1 cm x bone deep over right tempera parietal region 5 cm above the right ear and 18 cm above the right eye brow, directed obliquely and trailing towards parietal region 2. Incised wound 3 cm x 0.5 cm x muscle deepover palmar aspect of left hand between the base of thumb and index finger extending towards dorsum of the hand. 3. Abrasion 1 cm x 0.5 cm over left knee. 4. Multiple abrasions in an area of 18 cm x 10 cm over back in the lumbosacrat region smallest measuring 1 cm x 0.2 cm and the largest measuring 3 cm x 0.2 cm. 8. On internal examination, the temporo parietal bone was found fractured under injury no.1, membranes of brain were congested and were lacerated under the injury. Blood clot was present. Both the lungs were congested and 1 oz. semi-digested food was present in the stomach. In the opinion of the autopsy surgeon, the death was caused as a result of injury no.1. PW 7 Dr. M.L.Agarwal has proved the Post Mortem Report Ext. Ka-17. He stated that the deceased could have died between 1.30 p.m. and 10 p.m. on 16.10.1983. In the opinion of the doctor, injuries no. 1 and 2 could be caused by a Khukari and injury nos. 3 and 4 by blows of fists and kicks as well as from the blunt side of Khukari. It was opined that injury no.1 in the ordinary course of nature was sufficient to cause the death of the said victim. 9. The accused persons were arrested by Vikram Singh Latwal Supervisor Kanungo (PW 4) on 17-10-1983 at village Bakh about 6-7 km. before Almora when they were proceeding by bus for their escape to Almora. On their search, blood stained clothes on the person of accused as well as one Khukari, one Darati were found in a bag possessed by accused Uttam Singh. PW 4 sealed all the recovered articles and memos. Ext. Ka-3 to Ka-6 were prepared. 10. On 17-10-1983 itself, Madan Singh Patwari (PW 8) the Investigating Officer came to know about the arrest of the accused persons. He proceeded there. Vikram Singh Latwao PW 4 handed over the accused persons to the Patwari as well as the recovered articles and the relevant papers. Accused persons were medically examined at Almora. The I.O. reached the District Hospital Almora on the same day and found that both the injured Jagat Singh and Smt. Debuli Devi were not in a condition to give their statements. He recorded the statement of PW 4 on 18.10.1983. On 19-10-83, the I.O. recorded the statements of injured Jagat Singh and Smt. Debuli Devi ( P.W.1 and P.W. 2 respectively) and he took in his custody the blood stained clothes worn by them at the time of occurrence. The Investigating Officer went to the scene of occurrence on 22.10.1983. The lock of the house of injured Jagat Singh was opened. The I.O. found blood stains on the floor of the room. He collected the sample of blood stained and plain earth from the spot and prepared memo Ext. Ka-20. He got deposited this property in Sardar Malkhana on 3.11.1983 and the I.O. prepared a report for sending the same to chemical examiner. The I.O. again reached the place of occurrence on 26.11.83 and inspected the place in the presence of Jagat Singh, Debuli Devi and Dungar Singh ( PWs. to 3 respectively) and prepared a site plan Ext.Ka-21. On completion of the investigation, the I.O. submitted the charge-sheet against all the four accused on 7.3.1984 in the court of the Chief Judicial Magistrate Almora. Who in turn committed the case of the court of Session for trial of the accused persons. 11. The Sessions Judge Almora framed charges against the accused on 11.2.1985. Accused Uttam Singh and Har Singh were charged under Section 302, 307 and 450 of the I.P.C., while accused Jagat Singh and Bir Ram were charged under Section 302/34 and 307/34 I.P.C. Subsequently, on 23.4.1985, additional charge under Section 302/34 I.P.C. was framed against accused- appellant Uttam Singh and Har Singh. Accused persons pleaded not guilty to the charges and claimed to be tried. 12. The prosecution, in order to bring home the guilt to the accused, have examined as many as eight witnesses in the case. Out of them, Jagat Singh, injured, is P.W.1, Smt. Debuli Devi, wife of Jagat Singh, who was also injured in the occurrence, is P.W.2 and Dungar Singh, Pradhan and the reporter as well as eye witness, is P.W.3. They are the witnesses of fact. P.W. 4 is Vikram Singh Latwal, Supervisor Kanungo. P.W. 5 is Constable Bishan Datt who has proved the handwriting and signatures of S.I. Khitab Singh, who purports to have conducted the inquest proceedings of the dead body at the District Hospital, Almora on 17.10.1983. PW 5 also proved entry in the G.D. Report No. 37 dated 16.10.1983. PW 6 is Dr. L.S.Kanyal who examined the injuries on the person of injured PW 1 and PW 2 as has been referred to above. P.W. 7 is Dr. M.L.Agarwal who conducted autopsy on the dead body of Dewan Singh. P.W. 8 is Madan Singh Patwari and I.O. of the case. Besides, the prosecution tendered in evidence the report of the Chemical Examiner and Serologist U.P. Ext. Ka-24. 13. Both P.W.1 and P.W.2 who are husband and wife and have suffered injuries in the occurrence. Deceased Dewan Singh was their son. P.W.1 and P.W.2 have fully supported the prosecution story and have stated the manner in which they sustained injuries and how their son Dewan Singh was assaulted by the accused. Dungar Singh P.W.3 who came out of his house on the alarm raised by Jagat Singh is the witness of the second part of the occurrence wherein Dewan Singh was surrounded by the accused and was caused fatal injuries by the accused. Their evidence shall be referred to in the latter part of the judgment as and when the same is necessary. The evidence of P.W. 1, P.W.2 and P.W.3 is fully supported by the medical evidence so far as it related to the injuries sustained by them and also by deceased Dewan Singh. 14. The statements of accused persons were recorded under Section 313 Cr.P.C. It is admitted to the accused that Uttam Singh and Har Singh are real brothers and accused Jagat Singh is their cousin while Bir Ram is their ploughman. They have denied all the allegations levelled against them. They also denied their arrest by P.W.4 Vikram Singh Latwal and stated that they were arrested from their house. They have alleged enmity against P.W.3 due to election rivalry. It was pleaded that they were beaten by Patwari. It was alleged that injured Jagat Singh used of prepare illicit liquor at his house and there were number of bottles at his house. They have alleged their false implication in the case. The accused have examined D.W.1 Laxman Singh Bisht, Patwari Sangarh in their defence, who has proved the F.I.R. Ext. Kha-1 lodged by Dungar Singh P.W.3 on 1.8.1983 against Mahendra Singh, Uttam Singh, Har Singh, Mohan Singh and Jagat Singh. He has stated that on this report no investigation was made by him. Accused were not even interrogated by the Patwari. 15. After considering the evidence on record, the learned Sessions Judge came the the conclusion that the prosecution has succeeded in bringing home the guilt against the appellants for the offence under Section 302/34 and 307 I.P.C. Accused Uttam Singh alone was also found guilt under Section 450 I.P.C. Co-accused Jagat Singh and Bir Ram were given benefit of doubt. Accordingly, he passed the impugned order convicting and sentencing the accused-appellants as mentioned earlier. 16. In support of the appeal, it has been contended that the conviction of the appellants is against the evidence on record. 17. The learned Sessions Judge on the basis of the evidence of injured PW 1 Jagat Singh, PW 2 Debuli Devi and eye witness PW 3 Dungar Singh came to the conclusion that the prosecution was successful in bringing home the guilt to the accused-appellants for the offences under Sections 302 read with Section 34 of 307 of the I.P.C. while the remaining two accused, namely Jagat Singh, s/o Madho Singh and Bir Ram were acquitted of the charges under Sections 302/34 and 307/34 I.P.C. The appellant Har Singh was acquitted of the charge under Section 450 I.P.C. whereas accused Uttam Singh was convicted and sentenced to undergo R.I. for three years under Section 450 I.P.C. It is admitted case that the occurrence of Marpit had taken place between the parties. At the outset, it may be noted that the occurrence took place at broad day- light at about 1-30 p.m. The accused persons as well as the prosecution witnesses are the residents of the same village and are fully familiar with each other. Homicidal death of Deewan Singh is proved from the medical evidence on record which has already been referred above. P.W. 6 Dr. L.S.Kanyal has proved the injury reports of Jagat Singh PW 1 and Smt. Debuli Devi. Most of the injuries sustained by P.W.1 Jagat Singh were on the vital parts of his body and they were all incised wounds. The injury report Ext. Ka-14 of PW 2 Smt. Debuli Devi shows that she sustained one incised wound about the middle of right eye brow. The seat, nature and duration of the injuries found on the person of PW 1 and PW 2 are sufficient to indicate that the injuries were received by the injured at the time of occurrence. There is nothing to indicate that the injuries were self-inflicted. In this back-ground it has to be examined as to whether the charges under Sections 302/34 and 307 I.P.C. are proved against the appellants on the basis of the material on record. 18. P.W.1, Jagat Singh has stated that the occurrence took place on 16-10-83. Another incident preceded on 15.10.1983 when the wife of accused-appellant Har Singh was hurling abuses on his wife ( Debuli Devi ) at the time of sun-set. His wife also exchanged words in the same manner. Then Dungar Singh Pradhan (PW 3) intervened and pacified then and wife of Har Singh went to her house. He further stated that on 15.10.83 in the day, his goat entered the field of Uttam Singh and Har Singh and damaged the crop, which led to the abuses hurled by the wife of Har Singh. On 16-10-83 at about 1 p.m. when he was exposing the piles of Madua crop for thrashing in the outer-room on the second storey of house called ‘Chaakh’ and his wife was cleaning the Angan, the wife of appellant Har Singh started abusing the wife of Jagat Singh PW 1. His wife was exchanging the words in the same tone. He asked his wife to keep mum. Har Singh and Uttam Singh accused armed with ‘Khukaries’ came in his court-yard. Uttam Singh entered the Chaakh and wanted to give a blow on his head from the Khukari, which was avoided by him with the help of wooden slate used by children. Uttam Singh went out of the Chaakh. Accused Har Singh beat Smt. Debuli Devi by Khukari. He also stated that the place where his wife was standing is not visible from Chaakh. Uttam Singh as well as Har Singh went into the back side field. He and his wife rant towards their field in the back side raising alarm for their rescue and as soon as he was climbing on the wall of the field, he saw that Uttam Singh, Har Singh, Jagat Singh etc. were standing in the field and had surrounded his son Deewan Singh though he had not specifically named the fourth person. He saw that accused Uttam Singh and Har Singh were wielding Khukaries and Jagat Singh and Bir Ram were standing nearby having stones in their hands. He shouted heavily. On this Uttam Singh gave a Khukari blow on his head from behind. Jagat Singh caught hold of Deewan Singh and Har Singh and Uttam Singh assaulted him by Khukari and caused injuries. His wife was also present in the field at that time and Pradhan Dungar Singh ( PW 3) also witnessed this occurrence. Dungar Singh was accompanied by Shiv Singh. Dungar Singh and Amar Singh asked the accused not to assault the victims. Thereafter other village people also assembled there and then accused ran away from there. Due to injuries, Jagat Singh, his son and his wife (Debuli Devi) fell in the field in pool of blood. The village people took them to Almora Hospital via Lamgarha. He also stated that Deewan Singh succumbed in his injuries in the way and he was declared dead by the doctor. In his statement, PW 1 has further clarified that when Deewan Singh was given Khukari blow he was by the side of his field and his wife was near his son. He was shouting when accused were assaulting his son. He reiterated that Jagat Singh caught hold of his son and Uttam Singh and Har Singh assaulted him from Khukari. He clearly stated that Har Singh assaulted his wife. He further stated that his son who was a student had gone in the nearby field for grazing the cattle. It was Sunday on a date of occurrence. According to him, Uttam Singh and Har Singh bore grudge against him for the last ten years. He was cross-examined at length on behalf of accused Uttam Singh and Har Singh. At page 12 in para no.12 of his cross-examination, he has reiterated that on the fateful day, he and his wife were at their house and Dungar Singh ( PW 3) was thrashing Madua in his Angan. He has clearly stated that the house of Dungar Singh alone is adjoining to his house and after that there is the house of accused Jagat Singh in the close vicinity. He has reiterated that witness Dungar Singh was very much present at the time of occurrence. He has also stated that the court-yard of his house and that of Dungar Singh are adjoining to each other face to face. In reply to a suggestion made to him he has stated that when his wife was beaten in the Angan Dungar Singh had not reached. He has further stated that when the occurrence of assault took place in the field, Dungar Singh had reached there. From