IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL (1) CRIMINAL APPEAL No.539 of 2001 (Old No.241 of 1992) 1. Hardwari Lal S/o Mamchand 2. Lal Singh S/o Mam Chand R/o Mohalla Balmiki, Near Railway Station, Rishikesh, P.S. Rishikesh, Distt. Dehradun 3. Brijendra S/o Vimal R/o Niranjanpur, P.S. Raysee, District Hardwar. 4. Samay Singh S/o Bukar, R/o Niraynpur, P.S. Raysee, District Hardwar …….….…. Appellants Versus The State …………… Respondent (2) CRIMINAL APPEAL No.537 of 2001 (Old No.170 of 1992) Pala Ram S/o Bhartoo Ram, R/o Kaley Ka Dhal, Sarwara Nagar, Rishikesh, District Dehradun …….….…. Appellant Versus The State …………… Respondent (3) CRIMINAL APPEAL No.541 of 2001 (Old No.300 of 1992) Babu Ram S/o Anna @ Atara R/o Balmiki Basti, P.S. Rishikesh, District Dehradun …….….…. Appellant Versus The State …………… Respondent Dated: December 30, 2008 Sri Anoop Kumar Verma, learned counsel for the appellants Sri M.A. Khan, learned brief holder for the State/respondent HON. DHARAM VEER, J. 2 All the above three appeals have been preferred by the appellants/accused against the common judgment and order dated 15.1.1992 passed by III Addl. Sessions Judge, Dehradun and all the appellants are also related to the same incident, hence all these appeals are being disposed of by this common judgment and order. 2. These appeals, preferred by the appellants’ u/s 374(2) of Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), are directed against the judgment and order dated 15.01.1992 passed by III Addl. Sessions Judge, Dehradun in S.T. No.19 of 1988, State Vs. Hardwari Lal and others and also in S.T. No.5/1989, State Vs. Samay Singh, by which the appellants/accused Hardwari Lal, Babu Ram, Lal Singh @ Khechha, Pala Ram, Brijendra and Samay Singh have been convicted u/s 304 (Part II) r/w Section 149 of The Indian Penal Code, 1860 (hereinafter to be referred as IPC) and sentenced to R.I. for a period of ten years. All the appellants/accused were further convicted u/s 147 IPC and sentenced to one year’s R.I. It was also directed that the two sentences passed against each one of the appellants/accused shall run concurrently. 3. I have heard Sri Anoop Kumar Verma, learned counsel for the appellants and Sri M.A. Khan, learned Brief Holder for the State and perused the entire material available on record. 3 4. Chief Judicial Magistrate, Dehradun vide his report dated 25.5.2004 has informed that the appellant/ accused Hardwari Lal has died. Along with the report, death certificate issued by Medical Officer, Shanti Prapanna Sharma Govt. Hospital, Rishikesh has also been annexed, a perusal of which shows that appellant/accused Hardwari Lal had died on 24.10.2003. As such, the appeal filed by appellant/accused Hardwari Lal stands abated. 5. In brief the prosecution case is that on 8.12.1987 complainant Mansha Ram (P.W.1) and his son Ram Singh (deceased) were informed by Ram Kishor (P.W.2) that their piglet was caught and killed near Bankhandi by appellants/ accused Hardwari Lal and his son-in-law Brijendra and Samay Singh. Complainant’s son Ram Singh (deceased) went to enquire about the incident from the appellants/ accused. After that the complainant Mansha Ram (P.W.1) along with his daughters Rajo and Chhoti (P.W.8) and Ram Kishor (P.W.2) had also gone behind Ram Singh. At about 7:30 P.M., when the complainant and his companions reached at the place of occurrence then they saw that appellants/accused Hardwari, Brijendra, Samay Singh, Khechha, Babu Ram and Pala were committing Marpit with the complainant’s son Ram Singh with Lathis and Dandas. On hearing the noise, the complainant Mansha Ram and other witnesses namely P.W.3 Kishori and P.W.4 Mohan also reached on the place of occurrence and they also witnessed the incident. It was also stated that Ram Singh had received number of injuries. With the same averments, P.W.1 Mansha Ram lodged the FIR at P.S. 4 Rishikesh, Distt. Dehradun on 8.12.1987 at 8:15 P.M., i.e. Ex.Ka-1. On the basis of this FIR (Ex.Ka-1), Head Constable Sohbat Singh Negi prepared the Chik FIR of the case, i.e. Ex.Ka-3 and the case was registered against the appellants/accused as Case Crime No.403/1987 under Sections 147/148/307 IPC. The entry was also made in the G.D., the carbon copy of G.D. is Ex.Ka-4. Injured Ram Singh was taken to the hospital where he died on 8.12.1987 at 8:50 P.M. A memo in this regard was also sent from the hospital which was received in the police station on the same day at 9:30 P.M. and the necessary entry was also made in the G.D., the carbon copy of G.D. is Ex.Ka-5 and accordingly the case was converted under Sections 147/148/302 IPC. The investigation of this case was entrusted to P.W.9 S.I. Rajendra Singh Tomar. The inquest report of this case was prepared on 9.12.1987, i.e. Ex.Ka-2. Along with the inquest report, other necessary documents viz. sketch of dead body Ex.Ka-6, Police Form No.13 Ex.Ka-7, letter sent by I.O. for conducting the post-mortem Ex.Ka-8, Police Form No.33 Ex.Ka-9 and specimen of seal Ex.Ka-10 were also prepared. The dead body of Ram Singh was also sent for the post-mortem and the post-mortem on the dead body was conducted by P.W.10 Dr. C.M. Tyagi, post-mortem report is Ex.Ka-14. The I.O. also inspected the place of occurrence and prepared the site plan, i.e. Ex.Ka-11. Later on, the investigation was transferred to SHO Ghananand Sharma who during the course of investigation, recorded the statements of witnesses and after completing the investigation, he filed the charge sheet against the appellants/accused 5 Hardwari, Brijendra, Pala, Lal Singh and Babu Ram u/s 147/148/302 IPC, i.e. Ex.Ka-12. Against the appellant/accused Samay Singh, the Titamma charge sheet was filed by In-charge Inspector B.P. Singh u/s 147/148/302 IPC, i.e. Ex.Ka-13. 6. Learned Chief Judicial Magistrate Dehradun committed the case to the court of Sessions on 28.01.1988 after giving necessary copies to the appellants/accused as required under Section 207 Cr.P.C. 7. The case was transferred to III Addl. Sessions Judge, Dehradun by Sessions Judge, Dehradun for disposal according to law. 8. On 12.5.1988, learned III Addl. Sessions Judge, Dehradun framed charge against the appellants/accused Hardwari Lal, Brijendra, Pala, Lal Singh @ Khechha and Babu Ram u/s 147 IPC and u/s 302/149 IPC. The charge was read over and explained to them who pleaded not guilty and claimed to be tried. On 17.11.1989, charge against appellant/accused Samay Singh was framed by III Addl. Sessions Judge u/s 147 IPC and u/s 302/149 IPC. The charge was also read over and explained to the appellant/accused who pleaded not guilty and claimed to be tried. 9. To prove its case, the prosecution has examined P.W.1 Mansha Ram, complainant and eyewitness, P.W.2 Ram Kishor, eyewitness, P.W.3 Kishori, eyewitness, P.W.4 Mohan, eyewitness, P.W.5 Ram Prasad, eyewitness, P.W.6 Ram Bharosey, 6 eyewitness, P.W.7 Chandra Pal, eyewitness, P.W.8 Chhoti, sister of deceased and eyewitness, P.W.9 S.I. Rajendra Singh Tomar, I.O. of the case and P.W.10 Dr. C.M. Tyagi, who has conducted the post-mortem on the dead body of deceased Ram Singh. 10. Thereafter, the statements of the appellants/ accused were recorded u/s 313 of Cr.P.C. The oral and documentary evidence was put to each of them in question form, who denied the allegations made against each of them. In oral evidence, they have produced D.W.1 M.S. Negi, Pharmacist. In documentary evidence, they have produced Ex.Kha-1 i.e. injury report of appellant/accused Pala, Ex.Kha-2 i.e. injury report of appellant/accused Bijendra and Ex.Kha-3 i.e. injury report of appellant/ accused Hardwari Lal. 11. After appreciating the evidence on record and after hearing learned counsel for the parties, the learned III Addl. Sessions Judge, Dehradun vide his judgment and order dated 15.01.1992 has convicted and sentenced the appellants/accused as mentioned above. Feeling aggrieved by the aforesaid judgment and order, the appellants/ accused have preferred the present appeal. 12. Before further discussion, it is pertinent to mention the ante-mortem injuries recorded in the post- mortem report (Ex.Ka-14) prepared by P.W.10 Dr. C.M. Tyagi with regard to deceased Ram Singh, which are reproduced below: - 7 1. Lacerated Wound 1½ cm x 1½ cm x bone deep on top of head 9 cm above right ear. 2. Diffuse swelling on an area of 5 cm x 5 cm just left side of injury no.1. 3. Abraded contusion 1 cm x 1 cm, 1 cm below and outer aspect of right eye on face 4. Multiple abraded contusions on an area of 6 cm x 1.5 cm on left side of face, extending below outer angle of left eye. 5. Abraded contusion 1 cm x 1.5 cm on top of left shoulder. 6. Abraded contusion in an area of 4 cm x 3½ cm on outer aspect of left arm in middle. 7. Abraded contusion in an area of 7 cm x 4 cm on left side of chest on mid axillary line, 12 cm below left nipple 13. To prove the aforesaid post-mortem report (Ex.Ka-14), the prosecution has examined P.W.10 Dr. C.M. Tyagi who has stated that on 9.12.1987, he was posted as Medical Officer at Doon Hospital. On that day at 3:30 P.M., he conducted autopsy on the dead body of Ram Singh and recorded the ante-mortem injuries which have been quoted above. He has opined that deceased had died due to shock resulting from extensive injuries and these injuries could be caused on 8.12.1987 at 7:20 P.M. with Lathis and Dandas. He also proved the post-mortem report Ex.Ka-14 to be prepared by him. 8 14. Appellant/accused Pala was also medically been examined on 11.12.1987 at 10:00 A.M. and the following injuries were recorded in the injury report (Ex.Kha-1): - 1. Abrasion 4 cm x 2 cm over posterior medial aspect left forearm at junction of upper 2/3 and lower 1/3 with seals (dried). 2. Abrasion 3 cm x 0.5 cm with seals just below left clavicle medial end 3. Abrasion two in numbers, 1 cm x 1 cm each with scab in suprasternal notch 4. Abrasion two in numbers, 0.5 cm x 0.5 cm each (nail mark) with seals over lateral surface of neck, right side 5. Abrasion 1 cm x 0.5 cm with dried seals over skull in mid line in the line joining both ears. 6. Traumatic swelling 4 cm x 3 cm over posterio- lateral surface left forearm at junction of upper 2/3 and lower 1/3 7. Traumatic swelling size 8 cm x 6 cm over lateral aspect of chest, left side at level of 9th and 10th rib, complaining of pain. Opinion/Remark- Injuries 1,2,3,4,5 caused by friction, simple and 2-3 days old. Injuries 6 and 7 caused by blunt object and 2-3 days old. 15. On the same day i.e. on 11.12.1987 at 10:15 A.M., appellant/accused Bijendra was also medically 9 been examined and the following injuries were recorded in the injury report (Ex.Kha-2): - 1. Abrasion 4 cm x 3 cm with seals over anterior aspect of left knee at lower end 2. Abrasion 1 cm x 1 cm with seals over front of left knee in middle over patella 3. Abrasion over skull in line of both ears, just lateral to midline towards right with scab 4. Abrasion 1 cm x 1 cm over dorsa lateral aspect, root of index finger 5. Abrasion 1 cm x 1 cm with scab in between root of index and middle finger 6. Abrasion 5 cm x 1 cm with scab over anterior aspect of left shoulder 7. Traumatic swelling over dorsum of right hand from wrist to knuckles 8. Abrasion 4 cm x 0.2 cm with scab over anterior- lateral aspect of chest, left side at level of nipple Opinion/Remark- Injuries No.1,2,3,45,6 and 8 is caused by friction, simple and about 2-3 days old. Injury No.7 is caused by blunt object, simple and 2-3 days old. 16. On the same day, appellant/accused Hardwari Lal (now deceased) was medically examined 10 at 10:30 A.M. and the following injuries were found in his injury report Ex.Kha-3: - 1. Cut wound over skull 4 cm x 0.5 cm x transverse in line joining with ears towards right side with pus discharge. Depth-bone deep, 1 cm from midline of scalp. 2. Traumatic swelling over superior, anterior and lateral surface of right shoulder, diffuse purple contusion mark. 3. Traumatic swelling over dorsal aspect of right hand from wrist to knuckles and extending to index finger, complaining of pain 4. Traumatic swelling over dorsal aspect of left hand from wrist to knuckles, complaining of pain 5. Abrasion 7 cm x 1 cm with scab over anterior- medial aspect of right forearm middle and lower joints 6. Traumatic swelling over lateral side of dorsum of right foot extending from ankle to 4th and 5th toes. 7. Traumatic swelling over posterior chest wall, left side in an area of 10 cm x 6 cm on lateral side at level of 9th and 10th rib, left side, complaining of pain. Opinion/Remark- Injury no.1 caused by sharp object, simple and about 2-3 days old. Injury no.2,3,4,6,7 11 caused by blunt object. Injuries 2-3 days old. Injury no.5 caused by friction, simple and 2-3 days old. 17. To further prove its case, the prosecution got examined P.W.1 Mansha Ram, complainant of the case, who has stated that on the date of the incident, his piglet was killed by appellants/accused Hardwari, Lal Singh @ Khecha, Pala, Babu Ram, Samay Singh and Brijendra. He was informed this incident by Ram Kishor (P.W.2). On receiving the intimation, his son Ram Singh (deceased), went to enquire about it. After some time, he along with his daughters Chhoti (P.W.8) and Rajo also went on the place of occurrence. When he and his companions reached there then they saw that appellants/accused were beating his son Ram Singh with Lathis and Dandas and the time was about 7:15- 7:30 P.M. When he along with his companions went to save his son, then the appellant/accused ran away from the place of occurrence. The report of this incident was scribed by Umesh, i.e. Ex.Ka-1. He also stated that he took his son Ram Singh to the police station and on the way, Ram Singh had informed him that the above-said appellants/accused have caused injuries to him and his son also informed the names of above-said persons which he (Mansha Ram) had mentioned in the court. After that Ram Singh was taken to the hospital where after 15-20 minutes, he succumbed to his injuries. 18. P.W.2 is Ram Kishore who has not supported the prosecution case and was declared hostile. He has stated that he had not seen whether any Marpit was committed with Ram Singh. Even he has not given any 12 information either to Ram Singh or to Mansha Ram and his family members. 19. P.W.3 is Kishori who has also not supported the prosecution case and was declared hostile. 20. P.W.4 is Mohan who has also not supported the prosecution case and was declared hostile. 21. P.W.5 is Ram Prasad who has stated that he had not seen anybody while causing injuries to Ram Singh and even he had not seen the incident. But he has stated that the inquest report Ex.Ka-2 was prepared before him and he also put his thumb impression on the inquest report. 22. P.W.6 is Ram Bharosey who has also stated that he had not seen any incident, however he has identified his signatures on the inquest report, i.e. Ex.Ka-2 23. P.W.7 is Chandra Pal who has also stated that he had not seen any incident, however he has stated that he had signed on the inquest report. 24. P.W.8 is Chhoti, who is the daughter of P.W.1 Mansha Ram, has stated that Ram Kishore (P.W.2) had informed that on the date of the incident in the evening, a piglet was killed by appellants/accused. On this information, her brother had gone to enquire about the said incident. After some time, behind her brother, she along with her father had also gone. Then they saw that appellants/accused were beating her brother. She has stated the names of the persons who were causing injuries to her brother as Hardwari, Pala, Kheccha, 13 Babu, Samay Singh and Brijendra. She further stated that her brother had told the names of aforesaid six accused persons to her and has also told that those six persons had caused injuries to him. From there, her brother Ram Singh was taken to the police station and after that he was taken to the hospital by her along with her father. This incident was said to be taken place at about 7:30 P.M. 25. P.W.9 is Rajendra Singh Tomar, In-charge, P.S. Shahbad, who is the I.O. of the case, has stated that on 8.12.1987 he was posted as S.I. at P.S. Rishikesh. The investigation of this case was entrusted to him. Chik FIR and G.D. were prepared by H.C. Sohbat Singh, i.e. Ex.Ka-3 and Ex.Ka-4. He further stated that when the deceased was sent to the hospital from the police station, he was unconscious. After coming to the hospital, he came to know that deceased Ram Singh has died. The memo sent from the hospital was received in the police station and on the basis of that memo, the case was converted u/s 302 IPC. The entry was also made in the G.D. vide Report No.47 dated 8.12.1987 at 21:30 hours, i.e. Ex.Ka-5. On 9.12.1987, inquest report was prepared i.e. Ex.Ka-2. Photo Lash Ex.Ka-6, Chalan Lash Ex.Ka-7, Letter R.I. Ex.Ka-8, Letter to CMO Ex.Ka-9 and specimen of seal Ex.Ka-10 were also prepared by him. The dead body was sealed in a cloth and was sent for the post-mortem by Constables Som Dutt Sharma and Mahendra Kumar. He also prepared the site plan of the place of occurrence, i.e. Ex.Ka-11. During the course of investigation, he recorded statements of witnesses and on 9.12.1987, investigation of this case was entrusted 14 to SHO Ghananand Sharma. After completing the investigation, SHO Ghanand Sharma filed charge sheet against the appellants/accused Hardwari, Bijendra, Pala, Lal Singh and Babu Ram u/s 147, 148 and 302 IPC, i.e. Ex.Ka.12. Against the appellant/accused Samay Singh, a Titamma charge sheet was filed by S.I. B.P. Singh u/s 147, 148 and 302 IPC, i.e. Ex.Ka-13. 26. Thereafter, the statements of the appellants/ accused were recorded u/s 313 of Cr.P.C. The oral and documentary evidence was put to each of them in question form, who denied the allegations made against each of them. Appellants/accused Hardwari Lal, Pala and Bijendra, all have stated in reply to question no.3 that deceased Ram Singh and his companions had beaten them due to which they sustained injuries. In oral evidence, they have produced D.W.1 M.S. Negi, Pharmacist who has stated that he is posted as Pharmacist at Distt. Jail, Dehradun. On 11.12.1987, Dr. S.C. Sinha was the doctor in the Jail and he remained posted with Dr. S.C. Sinha. He took along with him the Medical Examination and Injury Register concerning to 11.12.1987. The injuries of the persons who were detained in the jail were being entered in this register. On 11.12.1987, the injuries found on the body of appellant/accused Pala were recorded in this register by Dr. S.C. Sinha. He is well acquainted with the handwriting of Dr. S.C. Sinha and he also filed the photocopy of injury report of Pala, which is Ex.Kha-1. On 11.12.1987, injuries of appellant/accused Bijendra and injuries of appellant/ accused and Hardwari Lal were also recorded in the said injury register by Dr. S.C. Sinha. He also filed the photocopies of the above- 15 two injury reports viz. Ex.Kha-2 and Ex.Kha-3 respectively. In documentary evidence, appellants/ accused have produced Ex.Kha-1 i.e. injury report of appellant/accused Pala, Ex.Kha-2 i.e. injury report of appellant/accused Bijendra and Ex.Kha-3 i.e. injury report of appellant/accused Hardwari Lal, which have been quoted above in paras 14,15 and 16 of this judgment. 27. Sri Anoop Kumar Verma, learned counsel for the appellants submitted that as per the evidence discussed above, the incident has not happened in such a manner as has been described by the prosecution and the prosecution has failed to prove beyond reasonable doubt the charges leveled against the appellants/ accused. He further submitted that the injuries of the appellants/accused Hardwari Lal, Bijendra and Pala were not explained by the prosecution and due to this reason, the prosecution has suppressed the genesis and origin of the occurrence and has thus not presented the true version. I find force in the argument advanced by learned counsel for the appellants for the reason that P.W.2 Ram Kishore who was said to be an important and key witness of the case and who has also informed P.W.1 Mansha Ram and P.W.8 Chhotti that their piglet was killed by the appellants/accused and even he is also said to be the eyewitness, has not supported the prosecution case and was declared hostile. On the same way, P.W.3 Kishori and P.W.4 Mohan were also the eyewitnesses of the case and their names have also been mentioned in the FIR as eyewitnesses. However, they too have not supported the prosecution case and were declared hostile. Likewise, P.W.5 Ram Prasad, P.W.6 Ram 16 Bharosey and P.W.7 Chandra Pal have also not supported the prosecution case and they have stated that they did not see the incident in question, however they have proved the inquest report Ex.Ka-2 which was prepared by the I.O. on 9.12.1987. Hence, these witnesses have not supported the prosecution case. Now, the only evidence against the appellants/accused is of P.W.1 Mansha Ram and P.W.8 Chhoti and their evidence is also not reliable and believable evidence and that also do not inspire confidence due to the reason that they have stated in their evidences that they themselves had seen the incident. However, they have further stated in their evidences that deceased Ram Singh had disclosed the names of appellants/ accused to them that those appellants/accused persons had caused injuries to him. This part of their statement creates a doubt in their statement that if they themselves had seen the incident, then why they have stated that deceased Ram Singh had informed the names of appellants/accused to them. Even P.W.9 Rajendra Singh Tomar/I.O. of the case has stated that when the deceased Ram Singh was taken to the hospital, at that time he was unconscious. Hence it is not possible that in an unconscious stage, deceased Ram Singh would have taken the names of the appellants/ accused before P.W.1 Mansha Ram and P.W.8 Chotti. Their presence is also doubtful on the spot for the reason that even P.W.1 Mansha Ram, father of deceased, did not try to save his son Ram Singh by intervening in the fight. In the same way, P.W.8 Chotti who was the sister of deceased, had also not intervened in between the quarrel and also not tried to save the life of her brother. This conduct of those witnesses also creates a doubt about their presence on the place of occurrence due to the aforesaid reasons. As such, the evidence of P.W.1 Mansha Ram & P.W.8 Chhotti cannot be said to be 17 reliable, believable and natural evidence and their evidence do not inspire confidence. 28. Learned counsel for the appellants/accused further argued that the injuries on the person of appellants/ accused Hardwari Lal, Pala and Bijendra were not explained by the prosecution which further creates a doubt in the prosecution story. I also find force in this argument advanced by counsel for the appellant/accused as injuries recorded in the injury reports viz Ex.Kha-1 i.e. injury report of appellant/accused Pala, Ex.Kha-2 i.e. injury report of appellant/accused Bijendra and Ex.Kha-3 i.e. injury report of appellant/accused Hardwari Lal were recorded by Dr. S.C. Sinha on 11.12.1987 and it was also reported that duration of injuries was about 2-3 days old. In the statement recorded u/s 313 Cr.P.C., appellants/accused Hardwari Lal, Pala and Bijendra have stated that Ram Singh (deceased) and his companions had beaten them due to which they also sustained injuries. The injuries found on the person of appellants/accused Pala, Bijendra and Hardwari Lal were not explained by the prosecution and it is well settled law that non-explanation of the injuries sustained by the accused