COURT NO. 7 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 140 of 2006 (Old Case No. 1876 of 1988) 1. Jogendra Singh son of Shri Khyat Singh 2. Smt. Kutri Devi w/o Shri Khyat Singh 3. Vijai Singh son of Shri Guman Singh 4. Ranbir Singh son of Shri Balwant Singh 5. Soban Singh son of Shri Bachan Singh All R/o village Balbo Patti Ghaurdaursyun District Pauri Garhwal …….Appellants Versus State of U.P. ….Opposite Party Sri Lokendra Dobhal, learned counsel for the appellants. Sri Harish Pujari, learned Addl. G.A. for the State. Dated: 01.11.2007 Hon’ble Dharam Veer, J. This criminal appeal, preferred under Section 374 (2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr. P.C.) is directed against the judgment and order dated 12.07.1988 passed by Sessions Judge, Parui Garhwal in Sessions Trial No. 4 of 1988, State v Jogendra Singh and others, whereby the learned Sessions Judge has convicted appellants under Section 147, 325/34 and 323/34 of the Indian Penal Code, 1860 (hereinafter referred to as IPC) and instead of awarding sentence of imprisonment, has directed that all the appellants be released on each of them entering into a bond of Rs. 4,000/- with two sureties in like amount to appear and receive sentence when called upon during a period of three years and in the meantime to keep peace and be of good behaviour and since appellant Soban Singh and Ranbir Singh claimed to be less than 24 years of age, as such they have been directed to remain under the supervision of the probation officer, Pauri for the above period of three years, appellants are subject to their filing a personal bond in the sum of Rs. 10,000/- to that effect, allowed one months’ time to furnish bonds as required above. 2. In brief, the prosecution case is that Smt. Guddi Devi daughter of Kedar Singh was married with Jogendra Singh accused, resident of village Belbo, Patti Ghurdaursyun, District Pauri Garhwal. Jogendra Singh was in service at Gaya (Bihar) and Smt. Guddi lived in village Belbo. On 17/18.02.1987 the younger sister of Smt. Guddi was married with the son of Fatey Singh, resident of village Gundei, Patti Khatsyun which is near village Paniya, where the father of Smt. Guddi resides. In the first week of March Khyat Singh, father of Jogendra Singh, went to Gaya and on 14.03.1987 he and Jogendra Singh brought Smt. Guddi Devi to Kotdwara but left her at a hotel at Kotdwara, taking away her daughter with them. Smt Guddi Devi reached Gunedi in the evening of 15.03.1987. On 16.03.1987, Fatey Singh went to inform the mother of Guddi Devi about the said incident. Ravindra Singh alias Virendra Singh, brother of Smt. Guddi Devi, came to village Gunedi in the same evening and in accordance with the instructions given by the mother of Smt. Guddi Devi, Ravindra Singh alias Virendra Singh and Devendra Singh took Smt. Guddi to Belbo. On seeing them, the five accused, who were at that time in front of the house of Jogendra Singh became angry and began to beat them with Lathis. Devendra Singh and Smt. Guddi were able to run with small Injuries while Ravindra Singh alias Virendra Singh was caught hold by the accused persons because the Lathi use by Jogendra Singh hit him on the head. Devendra Singh and Smt. Guddi Devi wnet to village Pabau and caught a bus from there, getting down near their village in the evening. Smt. Guddi went to village Paniya while Devendra went to Gunedi. On receiving information from Smt. Guddi Devi and Devendra Singh, Anand Singh, uncle of Ravindra Singh alias Virednra Singh and Fatey Singh proceeded for village Paniya. Meanwhile, Khyat Singh sent a report to the Patwari Ghurdaursyun-3/5, at 10.00 PM on 17.03.1987 that the dead body of Ravindra Singh alias Virendra Singh has been found at a distance of half a mile from their village Belbo, within the boundaries of village Markhola, near Karaikhal below the road. Sri Dabal Singh Rawat, Patwari, went to the place of occurrence at 8.00 AM on 18.03.1987 and conducted the inquest. While Panchyatanama was being held, Anand Singh and Fatey Singh also arrived but they refused to participate in the inquest proceedings. Anand Singh went to Pauri and submitted application, i.e. Ex.Ka-1, before the S.D.M., Barahsyun, Pauri. As this application complained about the conduct of Sri Dabal Singh Rawat, the investigation was entrusted to Supervisor Kanoongo Khirsu and thereafter to Sri Mohan Singh Bhandari, Patwari, Ghurdaursyun-II. The entry of the report of 17.03.1987 moved by Khyat Singh was also made in the G.D. and the report of khyat Singh is Ex.1. The inquest report was prepared by the Patwari on 18.03.1987 that is Ex.Ka-2 The site plan was also prepared, that site plan is Ex.Ka-3. Along with the inquest report, photo lash was also prepared, i.e. Ex. Ka- 4. Letter of Patwari, Dabal Singh Rawat to the Chief Medical Officer, Pauri Garhwal for conducting the post- mortem is Ex.ka-5. Chalan Form of the dead body is Ex.Ka-6 He has also prepared a Fard of the money recovered from the clothes of the dead body, that Fard is Ex.Ka-7 and from the pocket of the dead body of Ravindra Singh alias Virendra Singh one use bundle of Biri, one used matchbox and two notes of Rs.5 were recovered. He also took the blood stained clay and the stones and the plain clay and Fard was prepared, that Fard is Es.Ka-8. He also took into possession the shoe of right leg of deceased Ravindra singh alias Virendra Singh and the blood stained stones found on the rock and the Fard was prepared that Fard is Ex.ka-9. He also prepared a Fard of the clothes found on the dead body. Shocks and shoe of left leg which he received after post- mortem and Fard was prepared that is Ex.Ka-10. On the basis of the application moved by Anand Singh Rawat, the Chik F.I.R. was prepared that Chik F.I.R. is Ex.Ka-11. The entry was also made in the G.D., the copy of the G.D. is Ex.Ka-12. During the course of the investigation, the Patwari (Investigating Officer) prepared the site plan of the place of occurrence, that site plan is Ex.Ka-13. Smt. Guddi Devi was medically examined by the E.M.O, District Hospital, Pauri on 20.03.1987 at 11.30 AM, the injury report is Ex.2. Devendra Singh son of Fatey Singh was also medically examined by the E.M.O., District Hospital, Pauri on 20.03.1987 at 12.05 PM, the injury report is Ex.3. During the course of the investigation, the Investigating Officer recorded the statements of the witnesses and the injured and after completing the investigation he filed the charge-sheet against the appellants, the charge sheet is Ex.Ka-14. 3. Learned Munsif Magistrate, Pauri committed the case to the Court of Session on 29.01.1988 under Section 209 Cr.P.C. after complying the provisions of Section 207 Cr.P.C. 4. Learned Sessions Judge, Pauri Garhwal framed charges on 29.03.1988 against present appellants under Section 147 IPC, 302 read with Section 149 IPC and 323 read with Section 149 IPC and the charges were read over and explained to the appellants who pleaded not guilty and claimed to be tried. 5. To prove its case the prosecution examined P.W. 1 Smt. Savitri Devi alias Guddi Devi, who was a victim and injured, P.W.2 Devendra Singh, who was also injured witness, P.W.3 complainant Anand Singh, P.W.4 Fatey Singh, P.W.5 Dabal Singh Patwari, P.W.6 Mohan Singh, Supervisor Kanoongo (Investigating Officer). After that the statement of the appellants were recorded under Section 313 Cr.P.C., who denied the allegations made against them and in defence they did not produce any oral or documentary evidence. 6. After appreciating the evidence on record and hearing learned counsel for both the parties, learned Sessions Judge, Pauri Garhwal has convicted the appellants under Sections 147, 325/34 and 323/34IPC and instead of awarding sentence of imprisonment, has directed that all the appellants be released on each of them entering into a bond of Rs. 4,000/- with two sureties in like amount to appear and receive sentence when called upon during a period of three years and in the meantime to keep peace and be of good behaviour and since appellant Soban Singh and Ranbir Singh claimed to be less than 24 years of age, as such they have been directed to remain under the supervision of the probation officer, Pauri for the above period of three years, appellants are subject to their filing a personal bond in the sum of Rs. 10,000/- to that effect, allowed one months’ time to furnish bonds as required above. 7. Against the said judgment and order, the appellants have preferred the instant appeal. 8. I have heard Sri Lokendra Dobhal, learned counsel for the appellants as well as Sri Harish Pujari, learned Additional Government Advocate for the State and perused the entire record of the trial court. 9. To prove its case the prosecution has examined P.W.1 Smt. Savitri Devi, who has stated in her statement that she was married to accused-appellant Jogendra Singh before 12-13 years from the date of statement and after the marriage she was living in her in law’s house and from the wedlock of her and her husband Jogendra two children were borne. After 3-4 years of her marriage the behaviour of her husband and in laws had become changed and was bad towards her. They were demanding dowry. Due to this reason she had taken the money from her uncle Anand Singh and given to her in laws. About one year before the marriage of her younger daughter was fixed. Her husband was serving at Gaya, so after the marriage of her sister she went to her matrimonial house with her brother Ravindra Singh. Ravindra Singh came back to his house. After 10-12 days her father-in-law Khyat Singh went to Gaya and he took her and her husband as well as her daughter Malti, aged about 3 years to Kotdwara where they stayed in a hotel and next day morning her husband and her father-in-law snatched her daughter from her and they left the hotel leaving her alone in the hotel. From there she reached at Gunedi in the matrimonial house of her sister Rameshwari. After hearing the incident what happened with her, the father-in-law of her sister Fatey Singh went to her parents’ house and came back after 3- 4 hours along with Ravindra and next day morning her brother Ravindra Singh and Devendra Singh son of Fatey Sigh went to Belbo in her matrimonial house to leave her there and on that day, the date was 17.03.1987 at about 10.00 AM in the day when they reached in her matrimonial house then out side the house in the courtyard her mother-in-law Smt. Kutti Devi was sitting there and she told her husband Jogendra Singh not to allow her (Guddi Devi) to come in the house. After hearing this, Jogendra Singh along with other co-accused Vijay, Ranbir Singh and Soban Singh armed with Dandas came and she ran away from there in the field of Bachan Singh, All These accused persons surrounded all of them and Jogendra Singh caused injury on the head of Ravindra Singh with Danda due to which he became unconscious and fell down on the earth and the accused appellants had also beaten to her and Devendra then she and Devendra ran away from there and reached at Pabo and from there they caught bus and reached Paniya. After reaching Paniya, she narrated the incident to her mother and uncle and next day morning her uncle along with the villagers went to search Ravindra and in the day when her uncle came back and informed that the dead body of Ravindra was found. After that she along with her uncle and other villagers went to Pauri where she saw the dead body of Ravindra and she was also medically examined. This witness was cross-examined by the defence counsel at length but nothing has come out from her statement which may create any doubt in her evidence. The evidence of this witness is reliable and believable. 10. P.W.2 is Devendra Singh, who has stated that sister of Guddi Devi was married with his brother. About 13-14 months before, Guddi Devi had come to his house and his father told him to leave her in her matrimonial house. He along with Guddi Devi and her brother Ravindra Singh went to Belbo in the matrimonial house of Guddi Devi. When they reached there, Smt. Katori Devi asked why you had taken this prostitute there and Jogendra asked to go away form there and also caught collars of his and Ravindra. Meanwhile, Smt. Katori Devi told Jogendra to beat Smt. Guddi Devi, Devendra Singh and Ravindra Singh. We ran away then Jogendra along with other 3-4 accused chased them and beat them. Jogendra had caused injury to Ravindra Sing with Lathi and Ravindra Singh had fallen down on the earth. Jogendra Singh and all his three companions also caused injuries to Smt. Guddi Devi and to him (Devendra Singh). He has identified the accused-appellants in the court. They reached to Pabo from there and after catching bus they went to Paniya. Smt. Guddi Devi went to her village Paniya and he went to his village Gunedi. When he was going from Paniya to his village, in the way Anand Singh, uncle of Ravindra Singh, met him and he narrated the incident to Anand Singh and after reaching to his house he narrated the incident to his father. This witness was Cross-examined by the defence counsel at length but nothing has come out from his statement which may create any doubt in his evidence. The evidence of this witness is reliable and believable. 11. P.W. 3 is Anand Singh, who has stated that Guddi Devi is daughter of his brother Kedar Singh and she was married before 13-14 years before with Jogendra Singh. After the marriage, Guddi Devi was living in Belbo and used to come in her parents house also. Guddi Devi had told him that her in laws had demanded money. He has further stated that in the year 1987 once he had given Rs. 700/- to Guddi Devi and that money had been demanded by Guddi Devi from him. In March 1987 in the evening, Devendra Singh came in his shop where Anand Singh used to live in the nights also and told him that when he (Devendra Singh), Smt. Guddi Devi and Ravindra Singh reached at Belbo they were beaten and Ravindra was also beaten and he became unconscious and fallen down on the earth. Next morning he along with 4-5 other villagers reached at the place occurrence where so many people were gathered and the Patwari and Kanoongo were also there and the dead body of Ravindra Singh was also lying there. On asking, Kanoongo and Patwari did not told anything to him but said to sign on the Panchayatnama for which he was not ready. Next day he went to Pauri and gave a report to S.D.M. that report is Ex.Ka-1. He has further stated that Ravindra was called with the name of Virendra also. This witness was cross-examined by the defence counsel at length but nothing has come out from his statement which may create any doubt in his evidence. The evidence of this witness is reliable and believable. 12. P.W.4 is Fatey Singh, who has stated in his statement that the sister of Guddi Devi was married to his son in the month of February 1987 and in the evening of 15th March 1987 Guddi Devi had come to his house alone and told him that her husband and her father-in-law had left her in Kotdwara alone from where she had reached there by bus. On 16th March 1987, he went to Paniya where he met with the mother of Guddi Devi and brother Ravindra and narrated the incident to them, then he came to his house along with Ravindra Singh. On 17th March 1987 at about 5.30 AM he sent Guddi Devi and Ravindra Singh along with his son Devendra Singh to Belbo, in the matrimonial house of Guddi Devi, because the mother of Guddi Devi had told him to send Guddi Devi to her matrimonial house. In the evening of 17th March 1987, Devendra came back to his house and told that the accused appellants had caused injuries to him and Ravindra Singh had fallen down there after receiving the injuries and Guddi Devi had gone to Paniya. Next day morning, he went to Paniya and came to know that people of Paniya had gone to Belbo, then he was also going to Belbo and in the way Anand Singh met him and with him he reached at the place of occurrence where he saw the dead body Ravindra Singh. This witness was cross-examined by the defence counsel at length but nothing has come out from his statement which may create any doubt in his evidence. The evidence of this witness is reliable and believable. 13. P.W.5 is Dabal Singh, Patwari, who has stated in his statement that on 17.03.1987 he was Incharge Patwari Patti Ghurdaursyun-3/5. On that day at 10.00 PM in the nigh Ranjeet Singh and Guman Singh had come in his Chauki-3 and submitted a report singed by Khyat Singh, i.e. Ex.1, then he had gone to Chauki No. 5 On 18.03.1987 at 8.00 AM he reached at the place of occurrence which was in side village Markhola, which is in the jurisdiction of Chauki No. 5. After appointing Panch, he prepared Panchayatnama, i.e. Ex.Ka-2. The dead body was sent for post mortem on the same day at about 3.00 PM. He also inspected the place of occurrence and prepared the site plant, i.e. Ex.Ka-3. Along with the Panchayatnama he also prepared photo lash i.e. Ex.Ka-4. Letter to the Chief Medical Officer, Pauri Garhwal for conducting the post-mortem is Ex. Ka-5. Chalan Form of the dead body is Ex.Ka-6. He recovered one bundle of Biri, matchbox and two notes of Rs. 5 from the dead body that were sealed on the spot and Fard was prepared. He also took the blood stained clay and the plain clay from the place of occurrence that were sealed in separate bundles and Fard were prepared, that Fards are Ex.Ka-7 and Ex.Ka-8. 14. P.W. is Mohan Singh, Supervisor Kanoongo, who has stated that on 20.03.1987 he was posted as Patwari in Ghurdaursyun-2. On the same day at 7.00 PM, Anand Singh had filed a report, i.e. Ex.Ka-1, in his Chauki. As per the order of Nayab Tehsildar, he prepared the Chik report, i.e. Ex-K-11. The entry was made in the G.D., the copy of the G.D. is Ex.Ka-12. During the course of investigation he recorded the statements of the witnesses and the injured and received the injury reports, i.e. Ex-2 and Ex-3 and also inspected the place of occurrence and prepared the site plan, i.e. Ex.Ka-13. He received papers from Patti No. 5 and after Completing the investigation he filed the charge sheet against the accused appellants in the court, the charge sheet is Ex.ka-14. 15. After that the statements of appellants were recorded under Section 313 Cr.P.C, who denied the allegation made against them and in defence they did not produce any oral or documentary evidence . 16. Sri Lokendra Dobhal, learned counsel for appellants has submitted that the present appeal has become infructuous as the order dated 12.07.1988 passed by the learned Sessions Judge has been executed and appellants had furnished surety bonds and the personal bonds as directed by the above said order and for the reason stated above he does not want to press this appeal. 17. From the evidence discussed above, Smt. Guddi Devi was married with Jogendra Singh and Jogendra Singh was serving at Gaya. On 17/18.02.1987 the younger sister of Smt. Guddi was married with the son of Fatey Singh, resident of village Gunedi, Patti Khatsyun. After the marriage she had gone to Gaya along with her brother Ravindra Singh and after about 10 days her father-in-law Khyat Singh came there. On 14.03.1987 he and Jogendra Singh brought Smt. Guddi Devi to Kotdwara and have stayed there at hotel in the night and next day morning her husband and her father- in-law snatched her daughter and left her there. Smt. Guddi Devi reached Gunedi at the house of husband of her sister Rameshwari in the evening of 15.03.1987. On 16.03.1987, Fatey Singh went to inform the mother of Guddi Devi about the said incident at Paniya. Ravindra Singh alias Virendra Singh, brother of Smt. Guddi Devi, came to village Gunedi in the evening of 16.03.1987 and in accordance with the instructions given by the mother of Smt. Guddi Devi, Ravindra Singh alias Virendra Singh and Devendra Singh took Smt. Guddi to Belbo on 17.03.1987 at 5.30 AM. At Belbo, the present appellants had beaten Smt. Guddi Devi, Devendra Singh and Ravindra Singh alias Virendra Singh with Lathis and Dandas from where Devendra Singh and Smt. Guddi were able to run with small injuries while Ravindra Singh alias Virendra Singh became unconscious and fell down on the earth after receiving injuries on his head caused by Jogendra Singh. Devendra Singh and Smt. Guddi Devi went to village Pabau and caught a bus from there. Smt. Guddi went to village Paniya while Devendra went to Gunedi. On the same day Smt. Guddi Devi narrated the incident to her mother and uncle-Anand Singh. On receiving information, Anand Singh and Fatey Singh reached at the place of occurrence on 18.03.1987 where they found the dead body of Ravindra Singh allias Virendra Singh. The inquest report was prepared by Patwari, Dabal Singh on the spot on the basis of the application moved by Khyat Singh, Father of Jogendra Singh, before the Chauki No. 3 at 10.00 PM in the night. After that Anand Singh moved an application to S.D.M. concerned and the S.D.M. concerned passed order to register the F.I.R. The F.I.R. was registered on 20.03.1987 at 5.00 PM by the Supervisor Kanoongo Mohan Singh Bhandari and the Chik F.I.R. was prepared and the entry was made in the G.D. and after completing the investigation, the Investigating Officer filed charge sheet. 18. Thus, it is proved by the prosecution beyond reasonable doubt that the appellants has caused injuries to Smt. Guddi Devi, Devendra Singh and also caused injuries to deceased Ravindra Singh alias Virendra Singh and that fact was proved by the evidence of P.W.1 Smt. Savitri Devi alias Guddi Devi, who was a victim and injured has stated in her statement that she was married to accused-appellant Jogendra Singh before 12-13 years from the date of statement and after the marriage she was living in her law’s house and from the wedlock of her and her husband Jogendra two children were borne. After 3-4 years of her marriage the behavior of her husband and in laws had become changed and was bad towards her. They were demanding dowry. Due to this reason she had taken the money from her uncle Anand Singh and given to her in laws. About one year before the marriage of her younger daughter was fixed. Her husband was serving at Gaya, so after the marriage of her sister she went to her matrimonial house along with her brother Ravindra Singh. Ravindra Singh came back to his house. After 10-12 days her father-in-law Khyat Singh went to Gaya and he took her and her husband as well as her daughter Malti, aged about 3 years to Kotdwara where they stayed in a hotel and next day morning her husband and her father-in-law snatched her daughter from her and they left the hotel leaving her alone in the hotel. From there she reached at Gunedi in the matrimonial house of her sister Rameshwari. After hearing the incident what happened with her, the father- in-law of her sister