Reserved Judgment HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal no. 173 of 2007 (Old no. 81 of 1988) Lakhan Singh and five others. ------- Accused/appellants. Versus The State. ------- Respondent Sri S.K. Agarwal, Sr. Advocate assisted by Sri S.S. Bhandari, learned counsel for the appellants, Sri Prabhakar Joshi, learned Brief Holder for the State. Dated: May 5, 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 6th January 1988 passed by the Sessions Judge, Tehri Garhwal in Sessions Trial no. 19 of 1985 State vs. Lakhan Singh and 5 others, whereby the learned Sessions Judge has convicted the accused/appellants Rai Singh and Lakhan Singh for the offence punishable u/s 147, 307/149, 323/149, 452 of The Indian Penal Code, 1860 (hereinafter referred to as the I.P.C.) and sentenced both the accused to undergo rigorous imprisonment for a period of one year’s u/s 147 I.P.C., 4 year’s rigorous imprisonment for the offence punishable u/s 307/149 I.P.C., six months’ rigorous imprisonment for the offence punishable u/s 323/149 I.P.C. and 2 years’ rigorous imprisonment for the offence punishable u/s 452 I.P.C. It is directed that all the sentences shall run concurrently. The accused/appellants Smt. Bishni Devi, Smt. Sureshi Devi, Smt. Bharosi Devi and Km. Munni Devi were convicted u/s 147,307/149,323/149 I.P.C. and sentenced to each of them to undergo rigorous imprisonment for a period of one year’s u/s 147 I.P.C., 4 years’ rigorous imprisonment for the offence punishable u/s 307/149 I.P.C and six months’ rigorous 2 imprisonment for the offence punishable u/s 323/149 I.P.C. It is directed that all the sentences shall run concurrently. 2. The prosecution case, in brief, is that PW-2 Bhola Singh has lodged the report Ext. Ka-1 to the Patwari, Patwari Kshetra Chherap Dhar, Patti Raika, Tehri Garhwal with the averments that the incident said to have been taken place on 12.05.1984 at about 9:00-9:30 p.m., in village Kiwali, Tok-Dangirah. On hearing noise of weeping and screams, 10 to 12 persons reached to the place of occurrence where they saw that Buddhi Singh was lying unconscious in injured condition in his courtyard. There were multiple injuries on his head and body. Son and wife of the injured Buddhi Singh, namely, Tikam Singh PW-3 and Smt. Surma Devi were also injured and blood was oozing out. Tikam Singh has told to him that the accused persons, namely. Lakhan Singh, Rai Singh, Bishni Devi, Sureshi Devi, Km. Munni and Bharosi Devi, had inflicted injuries to them with Sickle. With the same averments the informant PW-2 Bhola Singh lodged the written report Ext. Ka-1 on 13.05.1984 at 4:00 p.m. at the Patti Patwari-Chherap Dhar, Sub District Tehri and on the basis of written report the Patti Patwari prepared the Chik First Information Report Ext. Ka-2 and a case crime no. 1/1984 u/s 307,325,323,147,452 I.P.C was registered against the accused/applicants and entry in this regard was made in the G.D. Copy of the G.D. is Ext.Ka-3. 3. The injured Buddhi Singh was medically examined by the Medical Officer PW-5 Dr. H.K. Sharma at Civil Hospital, Tehri Garhwal on 13.05.1984 at 1:30 a.m., the injury report is Ext. Ka- 4. And on the basis of X-Ray report, the Medical Officer has also prepared the supplementary medical report on 18.05.1984 in regard to the injuries received by the injured Buddhi Singh, which is Ext. Ka-5 on the record. On the same day at 1:30 a.m., the injured Tikam Singh was also examined by PW-5 Dr. H.K. Sharma in Civil Hospital, Tehri, that injury report is Ext. Ks-6 3 on the record. On the same day at about 1:30 a.m. Smt. Surma Devi w/o of the injured Buddhi Singh was also examined by PW-5 Dr. H.K. Sharma and he prepared injury report Ext. Ka-7. 4. The Patti Patwari- Raulakot, (investigating officer) during the course of investigation, has inspected the place of occurrence and prepared the site plan Ext. Ka-8. The bloodstained cloths, i.e. one underwear and one BANIYAN were handed over to Investigating Officer by Tikam Singh and a FARD was prepared, which is Ext. Ka-9 on the record. An iron Sickle was recovered by the I.O. through Tikam Singh and a FARD was prepared which is Ext. Ka-10. During the course of investigation, the Investigating Officer has recorded the statement of the witnesses and after completion of the investigation, the I.O. submitted charge sheet against the accused/appellants u/s 307/452/326/147/323 I.P.C. that charge sheet is Ext. Ka-11. 5. Learned Chief Judicial Magistrate, Tehri Garhwal on receipt of the charge sheet, after giving necessary copies to the accused persons as required u/s 207 Cr.P.C., committed the case to the Court of Sessions for trial on 25.06.1985 u/s 209 Cr.P.C. 6. On 03.07.1986, the learned Sessions Judge, Tehri after hearing the parties framed the charge of offence punishable u/s 147, 307/149, 323/149 and 452 I.P.C. against the accused persons. The charge was 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 PW-1 Buddhi Singh-the injured witness, PW-2 Bhola Singh- complainant of the case, PW-3 Tikam Singh-the injured witness, PW-4 Mangal Singh Raja-Patwari of the circle and I.O., PW-5 Dr. H.K. Shrama-who has medically examined the injured 4 and the appellant-accused Lakhan Singh and PW-6 Satya Prasad Sharma-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. In reply to the question no.12, the accused Lakhan Singh has stated that on 12.05.1984 at 9:30 p.m. he was returning to his house after irrigating his field and just he reached at his courtyard; Buddhi Singh armed with a gun and Tikam Singh and Surma Devi armed with LATHIES had attacked on him. Buddhi Singh shot at him but it was missed. Bhola Singh pelted stones on him from the roof of the old house. Anyhow saving his life, he had gone to his house. On 13.05.1984 he had gone to Tehri and was medically examined by the doctor and on 14.05.1984 he lodged a first information report. The accused Rai Singh in reply to the question no.12 has stated that at 9:00 p.m. he was looking after his grandson at his verandah. After hearing noise of Buddhi Singh, Surma and Tikam Singh, he came at his courtyard. Buddhi Singh had fired on Lakhan Singh with his gun and Surma Devi and Tikam Singh had attacked on Lakhan Singh with the LATHIES. In the meanwhile Bhola Singh also reached at the place of incident and he pelted stones (slates). On making noise, these persons had fled from the place of incident. The accused persons, namely, Smt. Bishni Devi, Smt. Sureshi Devi, Smt. Bharosi Devi and Km. Munni Devi have denied the allegations made against them. In their defence, the accused/appellants have filed the injury report of Lakhan Singh Ext. Kha-1, compromise Ext. Kha-2, First Information Report given by Lakhan Singh to the S.D.M., Tihri, Pratapnagar, Tehri Ext. Kha-3, certified copy of the judgment dated 14.02.1983 passed by the Munsif Magistrate, Tehri Garhwal Ext. Kha-4 and certified copy of the report submitted by the Patwari for taking action against the accused Buddhi Singh and others u/s 107/116 Cr.P.C. Ext. Kha-5. 5 9. After appreciating all the evidence available on record and hearing the learned counsel for the parties, the learned Sessions Judge convicted the accused/appellants Rai Singh and Lakhan Singh for the offence punishable u/s 147, 307/149, 323/149, 452 I.P.C. and sentenced both the accused to undergo rigorous imprisonment for a period of one year’s u/s 147 I.P.C., 4 year’s rigorous imprisonment for the offence punishable u/s 307/149 I.P.C., six months’ rigorous imprisonment for the offence punishable u/s 323/149 I.P.C. and 2 years’ rigorous imprisonment for the offence punishable u/s 452 I.P.C. It is directed that all the sentences shall run concurrently. The accused/appellants Smt. Bishni Devi, Smt. Sureshi Devi, Smt. Bharosi Devi and Km. Munni Devi were convicted u/s 147,307/149,323/149 I.P.C. and sentenced to each of them to undergo rigorous imprisonment for a period of one year’s u/s 147 I.P.C., 4 years’ rigorous imprisonment for the offence punishable u/s 307/149 I.P.C and six months’ rigorous imprisonment for the offence punishable u/s 323/149 I.P.C. It is directed that all the sentences shall run concurrently. Aggrieved with the impugned judgment and order the accused/appellants have preferred the present appeal. 10. I have heard Sri S.K. Aggarwal, learned Senior Counsel assisted by Sri S.S. Bhandari, learned counsel for the accused/appellants and Sri Prabhakar Joshi, learned Brief Holder for the State. 11. Before further discussion, it is pertinent to mention the injuries found in the person of the injured Buddhi Singh. The injured Buddhi Singh was medically examined by the Medical Officer PW-5 Dr. H.K. Sharma at Civil Hospital, Tehri Garhwal on 13.05.1984 at 1:30 a.m., the injury report is Ext. Ka-4. The following injuries were found on the person of the injured Bhddhi Singh:- 6 1. Incised wound on left side of forehead, just above the left eye, running upward and medially. Measuring 5cm. x bone deep x 2cm. gaping in between. Fresh bleeding present. Margins clean cut; 2. Incised wound on left side of forehead, 3cm. above the injury no.1 measuring 4cm. x bone deep x gaping 1cm in between. Running horizontally. Margins clean cut; 3. Incised wound on left side of skull, 4cm. above and behind left ear, measuring 7 cm. x bone deep x 1cm. gaping in middle, margins sharp cut, running in a semi lunar way, concavity pointing downwards towards left ear; 4. Incised wound in middle of back of skull, running vertically, measuring 6cm. x bone deep x o.5cm. gaping in between. Fresh bleeding; 5. Lacerated wound 2cm. to the right of injury no. 4 3cm. x 2cm. x scalp deep; 6. Abrasion on middle of left back, on outer side 10cm. linear running downward and forward. Fresh bleeding; 7. Incised wound on middle of left front of abdomen, on outer side, measuring 6cm. x muscle deep x gaping 2cm., clean cut margins; 8. Incised wound on back of left thigh, 9cm. above knee joint, 9cm. x 2cm. x muscle deep. Clean margins; 9. Contusion on outer aspect of left forearm, 4cm. below elbow joint measuring 10cm. x 8cm., bluish black in colour; 10. Marked swelling (contusions) on both the lips, bluish black in colour; 11. Marked swelling (contusions) on both the upper and lower eye lids of both the eye. Patient unable to open his eyes; General condition of the patient was low. Blood pressure was (80/60). The patient was admitted in the hospital. X-Ray of skull i.e. injuries 1 to 4 was advised. In the opinion of the doctor, all the injuries were fresh. Injury nos. 1 to 5, 7 and 8 were caused by some sharp edged weapon; and injury nos. 6 & 9 10, 11 were caused by some hard blunt object. Injury nos. 1 to4 were kept under observation. Injury nos. 5 to 10 were simple in nature. 12. On the basis of X-Ray report, the Medical Officer has also prepared the supplementary medical report on 18.05.1984 in regard to the injuries received by the injured Buddhi Singh, which is Ext. Ka-5 on the record. In the supplementary report, the Medical Officer PW-5 has found fractured line in left temporal region. Starting from just above left ear, running upward and medially for 3cm., then medially and downward for 7 7 cm. reaching upto midline. Lateral view shows fracture line corresponding with(A) running from mid part to upwards and backwards. Measuring about 8cm. Injury nos. 3 & 4 grievous in nature. Injury nos. 1&2 simple in nature. 13. On 13.05.1984 at 1:30 a.m., the injured Tikam Singh was also examined by PW-5 Dr. H.K. Sharma in Civil Hospital, Tehri, that injury report is Ext. Ks-6 on the record. The following injuries were found in the body of the injured Tikam Singh:- 1. Contusion 4 cm. above right knee joint, medially and forward, measuring 10cm. x 5cm., bluish black in colour. Abrasion on the overlying skin present. Fresh bleeding present; 2. Contusion bluish black in colour on right side of waist, measuring 8cm. x 3.5cm. About 6cm. above hip bone. Abrasion overlying skin. Fresh bleeding present. It is opined that these injuries were simple and caused by hard blunt object. Duration fresh. 14. On 13.05.1984 at 1:30 a.m. Smt. Surma Devi w/o of the injured Buddhi Singh was also examined by PW-5 Dr. H.K. Sharma, he prepared injury report Ext. Ka-7. The following injuries were found on the body of the injured Smt. Surma Devi:- 1. Lacerated wound on skull, 20cms above the right eye, measuring 9cm. x 2.4cm., bone deep, margins irregular. Fresh blood present all around; 2. Lacerated wound on left forearm, 5cm. above the wrist joint, measuring 9cm. x 2cm. x muscle deep. Fresh blood is present, diffuse swelling all around. Wound on outer side of arm; 3. Lacerated wound on outer side of right arm, 3cm. x 3cm. x muscle deep. Diffuse swelling around. Fresh bleeding present. It is opined that these injuries were simple in nature, fresh in duration and probably by hard blunt object. 15. The prosecution to prove its case, first of all, has examined PW-1 Buddhi Singh-injured who has stated that the accused persons Rai Singh, Lakhan Singh, Bishna Devi, Sureshi 8 Devi, Bharosi Devi and Munni Devi, are known to him. House of the accused persons situates at a distance of 100 yards from his house. On 12.05.1984 at about 9:30 p.m. he was at his verandah. His mother Smt. Lakhami Devi, his wife Smt. Surma Devi and his son PW3 Tikam Singh were also present in the house. He was taking meal. A lantern was lit there. At the very moment the accused Rai Singh and Lakhan Singh came at the verandah. At that time the accused Rai Singh armed with an axe and Lakhan Singh armed with a sickle and the accused persons hit at his head with their respective weapons i.e. axe and the sickle. Thereafter the accused persons dragging him, took him at the courtyard where all the accused persons gave beating to him. When his son and wife, namely, Tikam Singh and Smt. Surma Devi tried to save him, they were also beaten by the assailants. On making screams by his wife, mother and children the villagers, namely Bhola Singh (PW-2), Pritam Singh, Khem Singh and Bhaur Singh reached at the place of occurrence. He became unconscious. He regained his consciousness on 14.05.1984 at evening in the hospital at Tehri. The entire incident had taken place due to the enmity, which the accused persons had maintained on account of a litigation going on in respect of drinking water, due to which the accused/appellants had caused injuries to him. He remained in the hospital for 2 to 3 weeks’. 16. PW-2 is Bhola Singh, who has stated that the appellant/ accused are known to him. The house of Buddhi Singh is about 300-400 meters from his house. On 12.05.1984 at 9:00-9:30 p.m. he was at his house. On hearing the noise of weeping and screams, he alongwith 10-12 persons had gone towards the house of Buddhi Singh. Khem Singh, Preetam Singh and Uttam Singh were also with him. Buddhi Singh, in the injured condition was lying at his house in his courtyard. Tikam Singh S/o Buddhi Singh and wife of the injured Buddhi Singh were there. Blood was oozing from the injuries of all the three 9 injured. On asking, Tikam Singh told that the accused/ appellants had caused injuries to all of them with SICKLE, LATHIES and STONES. All the three injured were taken to the hospital. Taking the injury report, he had gone to the Patwari on 13th at 4:00 p.m. and lodged the report, that report is Ext. Ka-1. Medical Report was also given to the Patwari. Buddhi Singh was unconscious at that time. In the cross-examination he has stated that when he reached on the place of occurrence he did not find the accused/appellants there. He lodged the report on the information received through Tikam Singh. 17. PW-3 is Tikam Singh-the injured, who has stated that the accused/appellants are known to him. The distance between his house from the house of the accused/appellants is 60-70 feet. On 12.05.1984 at 9:00-9:30 p.m. he was reading at the verandah of his house. His mother, father and grandmother were also there. His mother was serving food to his father. His father was also at the verandah. A lantern was lit there. The accused/appellants Rai Singh and Lakhan Singh armed with axe and sickle respectively came at the verandah and had attacked to his father with the axe and sickle. After that his father was dragged to the courtyard and in the courtyard, the rest of the accused persons had inflicted injuries to his father with LATHIES. When he himself and his mother had tried to save his father, then the accused persons had also caused injuries to him and his mother also. His father got unconscious. On hearing noise, the villagers, namely, Bhola Singh, Khem Singh, Preetam Singh, Tikam Singh, Kunwar Singh etc. had reached on the place of occurrence. Till then the assailants had fled from the place of occurrence. Then he narrated the incident to the villagers. The villagers took him, his mother and his father to the hospital where there were examined medically. When the Patwari came, then he handed over a sickle to the Patwari. He has further stated that he snatched the sickle from 10 accused Lakhan Singh. The sickle was produced in the Court and is Ext.-1. 18. PW-4 is Mangal Singh Raja, Patwari Kshetra, Paneja, who has stated that on 13.05.1984 he was posted as such at Chherap Dhar. On that day Bhola Singh has lodged a written report alongwith medical certificate. On the basis of the report, he prepared the Chik First Information Report Ext. Ka-2 and an entry was made in the G.D., copy of the G.D. is Ext. Ka-3. On 14.05.1984 the investigation of this case was transferred to the Patwari Satya Prasad. 19. PW-5 is Dr. H.K. Sharma Medical Officer, who has stated that on 13.05.1984 he was posted as such at Tehri Hospital and on that day at 1:30 a.m. he had medically examined Buddhi Singh and found the injuries mentioned in para-11 of the above on the body of the injured Buddhi Singh. Condition of the patient was serious. Blood-pressure was 80/60. He was feeling inconvenience in respiration. The patient was admitted to the hospital. X-Ray was advised in regard to injury nos. 1 to 4. Injury nos. 1 to 5, 7 & 8 were caused by some sharp edged weapon. The injury nos. 6,9,10 & 11 were caused by some blunt object. Injury nos. 1 to 4 were kept under observation. The injury nos. 5 to 10 were simple in nature. The injury report which was prepared by him is Ext. Ka-4. These injuries could be caused on 12.05.1984 at 9:00 p.m. and could be caused by a sickle or an exe. The blunt injury could be cause by LATHI also. On the basis of the X-Ray report and the X-Ray plate, he prepared supplementary report Ext. Ka-5, according to which the injury nos. 3 & 4 were grievous in nature and injury nos. 1 & 2 were simple. On the same day at about 1:30 a.m. he examined the injured Tikam Singh and found the injuries mentioned in para-13 of the above on the person of injured Tikam Singh. In this regard he prepared injury report Ext. Ka-6. All the injuries were simple in nature and could be caused by some blunt 11 object, like LATHI and could be caused on 12.05.1984 at 9:00 p.m. On the same day at 1:30 a.m. he also examined Smt. Surma Devi and found the injuries mentioned in para-14 of the above on the body of the injured. All the injuries were simple in nature and could be caused by some blunt object. The injury could be caused on 12.05.1984 at 9:00 p.m. by LATHI. The injury report is Ext. Ka-7. In para-12 of the cross-examination, this witness has stated that on 13.05.1983 at 5:00 a.m. the accused/appellant Lakhan Singh was medically examined by him, a copy of that injury report is Ext. Kha-1 on the record. He has further stated that the injuries received by the accused/appellant Lakhan Singh can be caused on 12.05.1984 at 9:00 p.m. and can be caused by LATHI and stones. 20. PW-6 is Satya Prasad Sharma, Retd. Patwari-the Investigating Officer of the case, who has stated that on 14.05.1984 he was posted as Patti Patwari Raulakot and the investigation of the case was entrusted to him. Sri Mangal Singh, Patwasri was the Investigating Officer of the case before him. During the course of investigation, he recorded the statements of the eye witnesses i.e. Bhola Singh and Buddhi Singh. On 15.05.1984 he inspected the spot and thereafter prepared the site plan Ext. Ka-8. The witness Tikam Singh had handed over him a sickle and cloths of the Buddhi Singh and a FARD of the recovery of clothes was prepared which is Ext. Ka- 9. A bundle was opened and a sickle, underwear and one Baniyan were taken out and marked as Ext. 1,2,3. A separate FARD of the recovery of sickle was prepared which is Ext. Ka- 10. After completing the investigation, he submitted charge sheet Ext. Ka-11 on 16.08.1984. This witness was cross examined by the defence. In his cross-examination, he has stated that he did not found any blood either in the verandah or at the foot steps of the house of the injured Buddhi Singh. Similarly he did not find bloodstained at the place marked as ‘A’ in the site plan. 12 21. The oral and documentary evidence in question form was put to the accused/appellants u/s 313 Cr.P.C. who have denied the allegations made against them. In reply to the question no.12, the accused Lakhan Singh has stated that on 12.05.1984 at 9:30 p.m. he was returning to his house after irrigating his field and just he reached at his courtyard Buddhi Singh armed with a gun and Tikam Singh and Surma Devi armed with LATHIES had attacked on him. Buddhi Singh shot at him but it was missed. Bhola Singh pelted stones on him from the roof of the old house. Anyhow saving his life, he had gone to his house. On 13.05.1984 he had gone to Tehri and was medically examined by the doctor and on 14.05.1984 he lodged a first information report. The accused Rai Singh in reply to the question no.12 has stated that at 9:00 p.m. he was looking after his grandson at his verandah. After hearing noise of Buddhi Singh, Surma and Tikam Singh, he came at his courtyard. Buddhi Singh fired on Lakhan Singh with his gun and Surma Devi and Tikam Singh had attacked on Lakhan Singh with the LATHIES. In the meanwhile Bhola Singh also reached on the place of incident and he pelted stones (slates). On making noise, these persons had fled from the place of incident. The accused persons, namely, Smt. Bishni Devi, Smt. Sureshi Devi, Smt. Bharosi Devi and Km. Munni Devi have denied the allegations made against them. In defence, the accused/appellants did not produce any oral evidence, but in the documentary evidence, they filed Ext. Kha-1 to Ext. Kha-5. Ext. Kha-1 is the injury report of the appellant/ accused Lakhan Dingh who was medically examined on 13.05.1984 at 5:00 a.m. at Civil Hospital, Tehri by the Medical Officer Dr. H.K. Shrama who has proved the medical report in para-12 of his cross-examination. The injuries found on the person of the injured accused/appellant Lakhan Singh is reproduced as under:- 1. Lacerated wound on right side of