RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.1370 OF 2001 (Old No.65/1998) 1. Pratap Singh @ Pikki, S/o Late Nandan Singh Bisht, Nawabi Road, State Bank Wali Gali, PS Haldwani, Nainital 2. Vikash Kirola S/o Sri GS Kirola, R/o Lamachar, PS Haldwani, Nainital, at present Nainital Pharmacy, Nainital ……… Appellants Versus The State ……… Respondent Dated: November 9, 2010 Sri MS Pal, Sr. Adv. assisted by Sri RS Sammal, Adv. for the appellant no.1 Sri Sandeep Kothari, Adv. for the appellant no.2 Sri Amit Bhatt, learned Addl. GA for the State Sri LK Tiwari and Sri HC Pandey, Advocates for the complainant HON’BLE DHARAM VEER, J. This criminal appeal, preferred under section 374(2) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 12.01.1998 passed by the II Addl. Sessions Judge, Nainital, in Sessions Trial No.350 of 1995, State Vs. Pratap Singh & others, whereby the learned Sessions Judge has convicted the appellants/accused for the offence punishable u/s 304 (Part II)/34 of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced each of them to ten years’ rigorous imprisonment and further convicting and sentencing them for six months’ imprisonment u/s 323/34 IPC. All the sentences were directed to run concurrently. Appellants/accused were acquitted for the offences punishable u/s 147/148 and 302/149 IPC. Co-accused Manoj Singh Rautela and Deepak 2 Pathak were acquitted by the trial court for the charges leveled against them. 2. I have heard learned counsel for the parties and perused the entire material available on record. 3. In brief, the prosecution case is that complainant (P.W.1) Mukesh Sah lodged an FIR stating therein that on 18.6.1995, his cousin brother Rajesh Sah had gone to see Jagjit Singh night in the flat at Mallital, Nainital. At about 10:30 PM, Manoj Joshi, friend of Rajesh Sah, had come and informed that some boys have committed Marpit with his brother near the Flat and the situation of Rajesh was serious and he was admitted in BD Pandey Hospital. On this information, the complainant immediately rushed to BD Pandey Hospital and saw that his cousin brother Rajesh was in operation theatre. When his cousin brother was brought out, he was unconscious and after some time at about 12:25 AM, he succumbed to his injuries. He also came to know that in the Marpit committed with his brother, Harshwardhan Verma, Sanjay Goswami and Deepak Verma also sustained the injuries. He further came to know that in Jagjit Singh night, his cousin brother along with Harshvardhan Verma, Deepak Verma, Pankaj Verma, Sanjay Goswami and Tanmay Tiwari @ Fatty was there and on their next row, some girls were sitting to whom some boys were passing indecent remarks. Complainant’s brother Rajesh stopped those boys not to do so, on which one of those boys slapped Rajesh and gone from there by threatening to see him. When Jagjit Singh music night was going to end and the people were coming out of it and Rajesh Sah along with his associates proceeded towards his house, then near the Fountation at about 10 PM in the night, 5-6 boys assaulted Rajesh by 3 Lathis-Dandas. After sustaining injuries, Rajesh fell down on the earth but even then, those accused continued beating him. Some of the companions of Rajesh, namely, Harshvardhan Verma, Deepak Verma and others tried to intervene, who too sustained the injuries. Injured Rajesh was then immediately brought to BD Pandey hospital. The persons accompanying Rajesh informed the names of accused as Pratap Singh Bisht @ Vikky, Vikas Kirola, one Pathak and 2-3 other boys were there, however their names were not known. There was sufficient light on the place of occurrence because Jagjit Singh night was there. With the same averments, the FIR Ex.Ka-1 was lodged by P.W.1 Mukesh Sah on 19.6.1995 at 1:20 AM at P.S. Mallital, Distt. Nainital. On the basis of the FIR (Ex.Ka-1), H.M. Dan Singh prepared the Chik FIR, i.e. Ex.Ka-17. In the same process, entry was also made by him in the G.D., the copy of which is Ex.Ka-18. Investigation of this case was entrusted to P.W.6 S.I. Prem Singh. Injured Rajesh Sah was primarily medically examined on 18.6.95 at 10:10 PM by PW5 Dr. Rajeev Kumar, who after the examination, prepared injury report, Ex.Ka-3. Similarly Injured Harshwardhan was examined at 1:10 AM on 19.6.95, and his injury report Ex.Ka-4 was prepared. Injured Sanjay Goswami was examined on 19.6.95 at 1:15 AM and his injury report Ex.Ka-5 was prepared. Likewise, injured Deepak Verma was examined on 19.6.95 at 1:20 AM and his injury report Ex.Ka-6 was also prepared by the same medical officer. In the intervening night of 18/19.6.95 at about 12:30 AM, injured Rajesh Sah succumbed to his injuries and post- mortem on the dead body was conducted on 19.6.95 at 11:45 AM and post-mortem report Ex.Ka-2 was prepared by PW4 Dr. JP Bhatt. On 19.6.95, inquest of his dead body was 4 conducted by the I.O. and inquest report Ex.Ka-8 was prepared. Along with it, specimen of seal Ex.Ka-9, Police Form No.33, Ka-10, letter to CMO Ex.Ka-11, Police Form No.13 Ka-12 and sketch of dead body Ex.ka-13 were prepared. The I.O. also prepared the site plan of the place of occurrence Ex.Ka-7. The Investigating Officer during the course of investigation, recorded the statements of the witnesses and on completing the investigation, he filed the charge sheet Ex.Ka-14. Bloodstained clothes of deceased Rajesh Sah was sent by CJM, Nainital to the Chemical Laboratory vide Ex.Ka-15 and the report given by the Scientific Officer, Scientific Laboratory, Agra is Ex.Ka-16, in which it is stated that blood spots as well as human blood was found on the clothes of deceased. 4. After receiving the charge sheet, learned CJM, Nainital committed the case to the court of Sessions on 5.8.1995 after giving necessary copies to the accused persons as required under Section 207 Cr.P.C. 5. On 16.05.1996, learned II Addl. Sessions Judge, Nainital framed charges against the appellants/accused and co-accused Deepak Pathak and Manoj Rautela u/s 147, 148, 302/149 and 323/149 IPC. The charges were read over and explained to accused, who pleaded not guilty and claimed to be tried. 6. To prove its case, the prosecution has examined P.W.1 Mukesh Sah, complainant, P.W.2 Sanjay Goswami, injured eyewitness, P.W.3 Harshvardhan Verma, injured eyewitness, P.W.4 Dr. JP Bhatt, Radiologist, who conducted the post-mortem, P.W.5 Dr. Rajiv Kumar, who examined the injuries on the body of deceased and that of injured witnesses and P.W.6 SI Prem Singh, IO of the case. 5 7. After that the statements of the appellants/ accused and that of co-accused were recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to each of them in question form, who denied the allegations made against them and stated that they have been falsely implicated. However, they did not produce any oral or documentary evidence in defence. 8. After hearing learned counsel for the parties and appreciating the entire material available on record, the learned II Addl. Sessions Judge, Nainital vide judgment and order dated 12.1.98 has convicted and sentenced the appellants/accused as discussed above. Feeling aggrieved by the aforesaid judgment and order, the accused/appellants have preferred the present appeal. 9. Before further discussion, it is pertinent to mention here the initial injury report (Ex.Ka-3) of Rajesh Sah who was medically examined on 18.6.1995 at 10:10 PM by P.W.5 Dr. Rajeev Kumar, which is as under: - “1. 2 “ x 1½” lacerated bone deep wound present upto parietal bone adjacent to occipital region. 2. Swelling over frontal bone. 3. 1” x ½” lacerated cut injury on the dorsum of the base of left hand. 4. 5” x ½” lacerated bone deep wound involving both occipital and parietal region. 5. 3” x ½” lacerated bone parietal region deep and upon occipital region. Inferences – X-ray- AP view and Lateral skull Objects were blunt. Duration fresh. GC Very poor. 10. It is also pertinent to mention here the injury report (Ex.Ka.4) of injured Harshvardhan Verma who was 6 medically examined on 19.6.1995 at 1:10 AM by P.W.5 Dr. Rajeev Kumar, which is as under: - “Swelling and tenderness present over left wrist joint. Abnormal crepitation present upon left wrist joint” Inference- X-ray AP & Lat of Left wrist joint. Duration fresh. 11. Similarly, the injury report (Ex.Ka-5) of injured Sanjay Goswami who was medically examined on 19.6.1995 at 1:15 AM by P.W.5 Dr. Rajeev Kumar, is as under: - “Swelling size 2” x ½” upon lower end of forearm, upon parietal aspect. Inference- X-ray AP & Lat of Left forearm. Duration fresh. 12. Likewise, it is pertinent to mention here the injury report (Ex.Ka-6) of injured Deepak Verma who was medically examined on 19.6.1995 at 1:20 AM by P.W.5 Dr. Rajeev Kumar, which is as under: - “1/2 x 1/2 “ abrasion upon left side of the cheek. Swelling around the cheek. Inference- X-ray AP & Lat of Left mastoid left side. Duration fresh. 13. In order to prove the above-said injury reports, the prosecution has examined PW5 Dr. Rajiv Kumar, who has proved the above-said respective injury reports Ex.Ka-3 to Ex.Ka-6, as quoted above, prepared by him. 14. Later on the deceased died at 12:30 AM on 19.6.1995. The autopsy of deceased was conducted by PW4 Dr. JP Bhatt on 19.6.1995 at 11:45 AM and the following ante-mortem injuries were recorded in the post-mortem report: - 7 1. Traumatic Swelling present over left tempora- parieto-occpital region. Size 15 cm x 12 cm. On cutting clotted blood present in the sub-cut issues. 2. Stitched wound size 5 cm long on left side parietal region 3 cm away from midline. On cutting clotted blood present in the subcutaneous tissues. 3. Stitched wound size 4.5 cm long on left side parietal region, 1 cm medial and posterior to injury no.2. 4. Stitched wound 7 cm long on left side on parieto occipital region 1 cm medial and posterior to injury no.3. 5. Lacerated wound size 7 cm x 1 cm x bone deep present over left parieto-occipital region 10 cm above and posterior to upper brain of left pinna of ear. Underlying bone is fractural. Dark coloured blood is coming out on removing the gauze packing. On cutting injury no.3, 4 and 5, clotted blood present in the subcutaneous tissues. Injury no.2 to 5 are present over injury no.1. All the injuries above-mentioned are dressed and bandaged. 6. Lacerated wound 1 cm x .3 cm x bone deep on the occipital bone over skull (Top of Skull) present slightly right of midline. On cut, clotted blood is present in the subcutaneous tissues. 7. Abrasion 1.5 cm x .5 cm present obliquely downwards on the right side face 1 cm below outer aspect of right eye. On cutting clotted blood is present in the subcutaneous tissues. 8. Contusion 6 cm x 4 cm on the dorsum of left hand with a lacerated wound size 2.5 cm x 1 cm x muscle deep just above 2nd knuckle and two abrasions of .5 x .5 cm each on the lateral aspect of the contusion. On cutting clotted blood is present in the subcutaneous tissues. 9. Abraded contusion 12 cm x 6 cm over back of left upper arm in its middle portion. On cutting, clotted blood is present. 8 10. Abraded contusion 6 cm x 4 cm on the front of left side of chest 6 cm below left nipple at 5 o’clock position. On cutting clotted blood present in the subcutaneous tissues. 11. Abraded contusion 2 cm x 1 cm on the back in the lower region 1 cm to the left of midline. On cutting clotted blood is present on the subcutaneous tissues. 15. To prove the post-mortem report, the prosecution has examined PW4 Dr. JP Bhatt who has proved the report Ex.Ka-2 prepared by him. Cause of death was assigned due to shock and hemorrhage due to head injury. He also stated that ante-mortem injuries could have been caused by the iron rods and DANDAS on 18.6.95 at 10 PM, while the death could have been caused in the intervening night of 18/19.6.95 at 12:30 AM. 16. To further prove its case, the prosecution has examined PW1 Mukesh Sah, complainant of the case, who in his examination in chief has fully reiterated the version as narrated in the FIR. He also proved the FIR lodged by him as Ex.Ka-1. 17. PW2 Sanjay Goswami, injured eyewitness of the case, has stated that the incident is of the month of June, 1995 he had gone to see the program of Jagjeet Singh night at Mallital. The program was going to end. At about 10- 10:30 PM, he came upwards by the stairs and saw that the accused Pratap Singh Bisht, Deepak Pathak, Manoj Rautela, Vikas Kairola and one other boy, not known to him, were committing Marpit with Rajesh Sah. Appellant/accused Pratap Bisht and co-accused Deepak Pathak were having thick DANDAS while the appellant/accused Vikas Kairola and co-accused Manoj Rautela were having thin DANDAS. Rajesh had fell down there on the earth by sustaining injuries and even after he fallen down, the accused were 9 beating him. Then he along with Harshvardhan, Deepak and Sanjay Goswami came forward to save Rajesh, however he too was beaten by the accused and he also sustained injuries. Deepak and Harshvardhan also sustained the injuries. After that a mob was gathered due to which the accused ran away towards Nagar Palika. He and his associates chased the accused. Thereafter he along with his associates came back and brought Rajesh to the hospital, who had sustained serious injuries and blood was also oozing out from his body. He further stated that Rajesh succumbed to those injuries at 12:30 AM in the night. He too was medically examined in the hospital. There was ample source of light available on the place of occurrence because of the Jagjit night and in that light, he along with his associates identified the accused persons correctly. The examination-in-chief of this witness was recorded on 27.3.1997. The cross-examination of this witness on the said date was deferred on the application of the defence counsel. However, later on 30.3.1997, this witness had died, hence his cross could not be conducted. However, the evidence given by him is completely reliable, believable, natural and inspires confidence. 18. PW3 Harshvardhan Verma, also an injured eyewitness of the case, who stated that on 18.6.1995, in the Flats, program of Jagjit Singh night was going on. He along with deceased Rajesh Sah, Tanmay Tiwari, Deepak Verma and others were sitting on the chairs at Flat and seeing the program. On the next row, some girls were sitting, to whom some boys were passing indecent remarks. Deceased Rajesh Sah stopped them not to do so and in the meanwhile, some altercation took place and after that a scuffle too took place. The police persons intervened and 10 stopped the scuffle and the time was about 9:30 PM. After some time, he and his associates saw the program and moved towards the Fountain and on the way, on the road leading towards the main road, some boys met them, out of whom, Pratap Singh Bisht, Deepak Pathak, Manoj Rautela and Vikas Kirola were identified by him. Some other boys were also accompanying the accused. When he and his associates proceeded to talk to those persons, the accused started assaulting Rajesh Sah with DANDAS and due to the injuries sustained by him, he fell down, however even then the accused continued to beat him. He tried to intervene but he too was beaten by the accused. On seeing the accumulation of crowd, the accused ran away. Thereafter, rainfall had started. He and his associates tried to catch the accused, but they flew away. After that Rajesh Sah was brought to the hospital, however he became unconscious before reaching the hospital and blood was oozing from his head. In the hospital, Rajesh was medically examined, however he succumbed to those injuries at 12:30 AM. The incident in question had occurred at about 10 PM. He along with Deepak Verma and Sanjay Goswami too sustained the injuries. There was a sufficient light on the place of occurrence for the reason that Jagjit Singh night was being there. In the electric light, the accused persons were seen and identified. This witness was cross-examined at length by the defence counsel but nothing could be elicited in order to cast any doubt in his evidence. The evidence of this witness is absolutely reliable, believable, natural and inspires implicit confidence. 19. PW6 SI Prem Singh, IO of the case, who stated that he was entrusted with the investigation of the case. He inspected the place of occurrence and prepared the site 11 plan Ex.Ka-7. There was sufficient light on the place of occurrence because the program of Jagjit Singh night was there and the bulbs were lightning on the Mall Road too. Thereafter he came to the hospital and prepared inquest of Rajesh Sah, the inquest report is Ex.Ka-8. Other necessary documents i.e. specimen of seal Ex.Ka-9, police form no.33, letter to CMO and sketch of dead body, viz. Ex.Ka-10 to Ka- 13 were also prepared by him. During the course of investigation, he recorded the statements of the witnesses and on completion of investigation, he submitted the charge sheet Ex.Ka-14. He also sent the clothes of deceased for chemical examination vide Ex.Ka-15, while the report received from the chemical laboratory is Ex.Ka-16. CHIK FIR of the case was prepared by HC Dan Singh, which is Ex.Ka-17, who also made entry in the GD in the same course, i.e. Ex.Ka-18. 20. After that the statements of the appellants/ accused and that of co-accused were recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to each of them in question form, who denied the allegations made against them and stated that they have been falsely implicated. However, they did not produce any oral or documentary evidence in defence. 21. Sri MS Pal, learned senior counsel appearing for the appellants/accused argued that the prosecution has not proved its case against them beyond reasonable doubt. I do not find any force in this argument for the reason that as per the above discussion, the prosecution has amply proved its case beyond reasonable doubt against the appellants/ accused for the offences under which they were convicted and sentenced by the trial court. 12 22. The prosecution in order to prove its case, produced PW3 Harshvardhan Verma, who is an injured eyewitness of the case, who stated that on 18.6.1995, in the Flats, program of Jagjit Singh night was going on. He along with deceased Rajesh Sah, Tanmay Tiwari, Deepak Verma and others were sitting on the chairs at Flat and seeing the program. On the next row, some girls were sitting, to whom some boys were passing indecent remarks. Deceased Rajesh Sah stopped them not to do so and in the meanwhile, some altercation took place and after that a scuffle too took place. The police persons intervened and stopped the scuffle and the time was about 9:30 PM. After some time, he and his associates saw the program and moved towards the Fountain and on the way, on the road leading towards the main road, some boys met them, out of whom, Pratap Singh Bisht, Deepak Pathak, Manoj Rautela and Vikas Kirola were identified by him. Some other boys were also accompanying the accused. When he and his associates proceeded to talk to those persons, the accused started assaulting Rajesh Sah with DANDAS and due to the injuries sustained by him, he fell down, however even then the accused continued to beat him. He tried to intervene but he too was beaten by the accused. On seeing the accumulation of crowd, the accused ran away. Thereafter, raining had started. He and his associates tried to catch the accused, but they flew away. After that Rajesh Sah was brought to the hospital, however he became unconscious before reaching the hospital and blood was oozing from his head. In the hospital, Rajesh was medically examined, however he succumbed to those injuries at 12:30 AM in the night. The incident in question had occurred at about 10 PM. He along with Deepak Verma and Sanjay Goswami also 13 sustained the injuries. There was a sufficient light on the place of occurrence for the reason that Jagjit Singh night was going on. In the electric light, the accused persons were seen and identified. The evidence of this witness is absolutely reliable, believable, natural and inspires implicit confidence and the same also gets corroboration from the statement of PW2 Sanjay Goswami, who in his examination in chief has amply corroborated the prosecution version. Besides the above, the medical evidence also supports the prosecution story. PW5 Dr. Rajeev Kumar was examined by the prosecution, who had initially examined the deceased Rajesh Sah and he also medically examined PW2 Sanjay Goswami and PW3 Harsh Vardhan and he also proved their medical reports viz. Ex.Ka-3 of Rajesh Sah, Ka-4 of Harshwardhan and Ka-5 of injured Sanjay Goswami. The prosecution also produced PW4 Dr. JP Bhatt, who conducted the post-mortem on the dead body of Rajesh Sah, who has recorded as many as eleven ante-mortem injuries on the body of deceased and also opined that cause of death was shock and hemorrhage due to head injury. He also proved the post-mortem report Ex.Ka-2 prepared by him. Even PW4 has specifically stated in his evidence that the ante- mortem injuries could have been caused by DANDAS on 18.6.95 at 10 PM. Besides the above, there is a report sent by the Scientific Officer, Chemical Laboratory, Agra i.e. Ex.Ka-16, in which he has opined that on the clothes of the deceased, blood spots as well as human blood was found. Even there is no dispute about the source of light as there was sufficient lightning on the place of occurrence because the program of Jagjit Singh night was going on and in the electric light, the witnesses had identified the accused. Thus, it is proved that the 14 prosecution has been completely successful in proving its case against the appellants/accused beyond any reasonable doubt and the trial court has rightly convicted the appellants as above discussed. 23. It was next argued on behalf of the appellants that there is the sole evidence on record of PW3 Harsh Vardhan. The evidence of PW2 Sanjay Goswami cannot be read into evidence because the opportunity of cross-examination had not been provided to the defence. I do not find any force in this argument. The examination in chief of PW2 Sanjay Goswami was recorded on 27.3.1997. On that day, the cross was deferred on the application of the accused persons. Later on, Sanjay Goswami died on 30.3.1997 and it was not possible for the prosecution to produce him for cross-examination. At this juncture, it is relevant to quote Section 33 of the Evidence Act, 1872 which provides that : - 33. Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated - Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a letter stage of the same judicial proceedings, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party or if his presence cannot be obtained without, an amount of delay of expense which, under the circumstances of the case, the Court considers unreasonable; Provided - That the proceeding was between the same parties or their representatives in interest; That the adverse party in the first proceeding had the right and opportunity to cross examine; 15 That the questions in issue were substantially the