RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No.1250 of 2001 (Old No.141 of 1990) 1. Basanta S/o Shuk Dev R/o Naya Purwa Kanwali, Dehradun 2. Ram Singh S/o Joti R/o Naya Purwa Kanwali, Dehradun …….….…. Appellants Versus The State …………… Respondent Dated: August 06, 2008 Sri Lokendra Dobhal, learned counsel for the appellants Sri Harish Pujari, learned Addl. G.A. for the State/respondent HON. DHARAM VEER, J. This appeal, preferred by the appellant u/s 374(2) of Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 25.01.1990 passed by Sessions Judge, Dehradun in S.T. No.56 of 1987, State Vs. Basanta & another and connected S.T. No.160 of 1987, State Vs. Kaka @ Om Prakash, whereby the learned Sessions Judge has convicted the appellant/accused Basanta under Section 304 (Part-II) of Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced him to seven years’ rigorous imprisonment u/s 304 (Part II) IPC. Appellant/accused Basanta was further convicted u/s 323 IPC and was sentenced to three months’ imprisonment. Both the sentences were directed to run concurrently. Appellant/accused Ram Singh was convicted u/s 323 2 IPC r/w Section 34 of IPC, however instead of sentencing him, he was directed to be released on probation provided he executes a personal bond of Rs.1500/- and furnishes two sureties each in the like amount, binding himself to keep peace and be of good behaviour for a period of six months. Co-accused Kaka @ Om Prakash who was charged in connected S.T. No.160/87, was acquitted of the charge punishable against him. 2. I have heard Sri Lokendra Dobhal, learned counsel for the appellants and Sri Harish Pujari, learned Addl. G.A. for the State and perused the entire material available on record. 3. In brief, the prosecution case is that complainant Om Prakash Garg (P.W.1) lodged a FIR stating therein that on 26.6.1986 at about 9:00 P.M. when he came back to his house from his shop, then he saw that on the road in front of house of Mewalal, appellants/accused Basanta & Ram Singh accompanying with one another person (whose name was not known to him), were committing Marpit with the wife of Mewalal namely Smt. Saraswati. When the noise was made by Smt. Saraswati, wife of Mewalal, then he (Om Prakash Garg), being a neighbourer, asked them not to quarrel. On this, all these three persons abused him. Meanwhile, complainant’s servant Sunil Tyagi also reached on the place of occurrence after hearing the noise. He (Sunil Tyagi) had also asked those three persons not to abuse, then all the three persons also abused him. When the complainant Om Prakash Garg along with Sunil Tyagi asked these three persons not to abuse, then all these 3 three persons attacked on them with Lathis. Appellant/accused Basanta caused injury to Sunil Tyagi with Lathi. Due to these injuries, Sunil Tyagi fell down on the ground and became unconscious. At that time, Raj Kumar, Duli Chand and other persons of locality also came there who also witnessed the incident and had intervened in between the quarrel. Thereafter, injured Sunil Tyagi was admitted at Government Hospital, Dehradun and he has lodged the FIR. With the same averments, the FIR was lodged by P.W.1 Om Prakash Garg at P.S. Basant Vihar, Dehradun on 27.6.1986 at 00:20 A.M., the report is Ex.Ka-1 and the case was registered against the appellants/accused Basanta, Ram Singh and one another person u/s 308 IPC as Case Crime No.354/86. On the basis of this report, Chik FIR was prepared by Head Moharrir Kripal Singh, i.e. Ex.Ka-8. The entry was also made in the G.D., the copy of G.D. is Ex.Ka- 9. The investigation of the case was entrusted to P.W.11 S.I. S.N. Sharma. Injured Saraswati Devi was medically examined by P.W.9 Dr. P.S. Butola on 26.6.1986 at 11:25 P.M. and injury report was prepared, i.e. Ex.Ka-12. Injured Sunil Tyagi was also medically examined on the same day i.e. on 26.6.1986 at 11:00 P.M. at Doon Hospital and injury report in his respect was also prepared, i.e. Ex.Ka-13. Thereafter, on 30.6.1986, Sunil Tyagi had died in Doon hospital at 3:55 A.M. An information in this regard was sent by Doon Hospital to concerned police station and case was converted to Section 304 IPC from Section 308 IPC. The entry in this regard was also made in the G.D., the copy of G.D. is Ex.Ka-10. Thereafter, the inquest report on the body of Sunil 4 Tyagi (deceased) was prepared by the I.O. on 30.6.1986, i.e. Ex.Ka-2. Photo Lash is Ex.Ka-3; Police Form No.13 is Ex.Ka-4; the application for conducting the post-mortem of dead body of Sunil Tyagi was sent to CMO, Doon Hospital, Dehradun, that application is Ex.Ka-5; report sent by I.O. at P.S. Kotwali, Dehradun is Ex.Ka-6 and specimen of seal is Ex.Ka-7. The post- mortem of dead body of Sunil Tyagi was conducted on 30.6.1986 at 4:30 P.M. by P.W.8 Dr. Vinod Kumar, the post-mortem report is Ex.Ka-11. The I.O. during the course of investigation also inspected the place of occurrence and prepared the site plan i.e. Ex.Ka-15. After completing the investigation, the I.O. submitted the charge sheet against the appellants/accused Basanta & Ram Singh in the court u/s 304 IPC, i.e. Ex.Ka-16. Against co-accused Kaka @ Om Prakash (acquitted by the trial court), who was not named in the FIR, a Titamma charge sheet was submitted against him u/s 304 IPC by P.W.10 P.S. Mehra, i.e. Ex.Ka.14. 4. Learned Chief Judicial Magistrate Dehradun committed the case to the court of Sessions on 05.06.1987 after complying with the provisions of Section 207 Cr.P.C. 5. On 17.11.1987, learned Sessions Judge, Dehradun framed the charge against the appellant/ accused Basanta under Sections 302 IPC and also u/s 323/34 IPC. The charge was read over and explained to the appellant/accused Basanta, who pleaded not guilty and claimed to be tried. On the same day i.e. on 17.11.1987, the charge was framed against the appellant/accused Ram Singh u/s 302 r/w Section 34 5 IPC and also u/s 323 r/w Section 34 IPC. The charge was also read over and explained to appellant/accused Ram Singh, who also pleaded not guilty and claimed to be tried. 6. To prove its case, the prosecution has examined P.W.1 Om Prakash, complainant and eyewitness, P.W.2 Saraswati Devi, eyewitness, P.W.3 Raj Kumar, eyewitness, P.W.4 Ram Lal, also an eyewitness, P.W.5 Constable Satish Chandra, who took the dead body of deceased Sunil Tyagi for conducting the post-mortem in sealed condition, P.W.6 S.I. Jai Pal Singh, who prepared the inquest report and other necessary papers in respect of dead body of Sunil Tyagi, P.W.7 Head Constable Kripal Singh, who prepared the Chik FIR and made necessary entry in the G.D., P.W.8 Dr. Vinod Kumar, who has conducted the autopsy on the dead body of Sunil Tyagi, P.W.9 Dr. P.S. Butola, who has medically examined injured Smt. Saraswati Devi & Sunil Tyagi (deceased) on 26.6.1986, P.W.10 S.I. P.S. Mehra, who filed Titamma charge sheet against co-accused Om Prakash @ Kaka and P.W.11 S.I. Sriniwas Sharma, I.O. of the case. 7. Thereafter, the statements of the appellants/ accused Basanta and Ram Singh as well as of Om Prakash (acquitted by the trial court) were recorded u/s 313 of Cr.P.C. The oral and documentary evidence was put to them in question form, who denied the allegations made against them and stated that they have been falsely implicated due to enmity. In oral evidence, they have produced D.W.1 Sukhdev. However, in documentary evidence, they have produced Ex.Kha-1 i.e. copy of G.D. dated 27.6.1986 6 time 00:50 A.M.; injury report of appellant/accused Ram Singh i.e. Ex.Kha-2 and FIR lodged by D.W.1 Sukhdev i.e. Ex.Kha-3. 8. After appreciating the evidence on record and after hearing learned counsel for the parties, the learned Sessions Judge, Dehradun vide his judgment and order dated 25.01.1990 has convicted and sentenced the appellants/accused as mentioned above. However, co-accused Om Prakash @ Kaka was acquitted of the charge framed against him. Feeling aggrieved by the aforesaid judgment and order dated 25.01.1990, the appellants/accused Basanta & Ram Singh have preferred the present appeal. 9. Before further discussion, it is pertinent to mention that injured Smt. Saraswati was medically examined on 26.6.1986 at 11:25 P.M. by P.W.9 Dr. P.S. Butola and her injury report was also prepared i.e. Ex.Ka-12. The injuries found on the person of Smt. Saraswati are reproduced as under: - 1. “Complaining of pain in the anterior chest both sides. 2. Complaining of pain in the back both sides chest. It was also opined that patient is only complaining of pain in the anterior and posterior of chest as mentioned above. However, no opinion could be given about the nature and duration of injury.” Injured Sunil Tyagi was also medically examined on the same day i.e. on 26.6.1986 at 11:00 P.M. by P.W.9 Dr. P.S. Butola and his injury report was also 7 prepared i.e. Ex.Ka.13. The injury found on the person of Sunil Tyagi is reproduced as under: - “Traumatic haematoma over the top of head anteriorly 6 cms. X 5 cm x in dia, 9 cms. above the base of nosal bridge. Patient is unconscious. G.C. Low” It was also opined by the doctor that above-noted injury was fresh, caused by blunt and hard object. The injury was kept under observation, advised x-ray of Skull, AP and lateral view. Patient was hospitalized.” Afterwards, on 30.6.1986, Sunil Tyagi had died in the hospital at 3:55 A.M. and after that post- mortem was conducted on his dead body by P.W.8 Dr. Vinod Kumar and post-mortem report was prepared i.e. Ex.Ka-11. The following ante-mortem injury was found on the dead body of Sunil Tyagi: - “Contusion with swelling on the top of the head 8” x 3” on the top underneath thereby haematoma.” The Medical Officer also opined that death is caused due to coma as a result of ante-mortem head injury. On 27.6.1986 at 6:00 A.M., Ram Singh (appellant/accused) was also medically examined by P.W.9 Dr. P.S. Butola and injury report in his regard was also prepared, i.e. Ex.Kha-2. The following injury was found in his person: - “Lacerated wound 4 cm x 1 cm x skin deep in the first inter-phalangeal space, blood clot (soft) present over the wound. 8 It was opined by the medical officer that injury noted-above was caused by blunt and hard object, nature was simple and duration was opined about 8-12 hours.” 10. To prove its case, the prosecution has examined P.W.1 Om Prakash, complainant of the case, who has stated that on 26.6.1986 at about 8:45-9:00 P.M., he was coming to his house from his shop. When he reached on the road of canal coming from Kanwali Nayapurwan, then he saw on the road in front of house of Mewalal & Hiralal that wife of Mewalal namely Saraswati Devi was being beaten by the appellants/ accused Basanta, Ram Singh and one another person with fists and kicks. When he stopped them to do so, then the appellants/accused along with one another accused started abusing him. Meanwhile, his servant Sunil Tyagi came on the place of occurrence after hearing the noise. He (Sunil Tyagi) also stopped the appellants/accused and their accomplice not to abuse. In between, the witnesses Raj Kumar, Duli Chand, Ramlal and some other person also reached there. While abusing, appellants/accused and their accomplice also attacked upon him and Sunil Tyagi with Lathis. Lathi of appellant/accused Basanta hit on the head of Sunil Tyagi, due to which he fell down on the ground and became unconscious. Seeing this, appellants and their accomplice ran away from there. Thereafter, injured Sunil Tyagi was taken to hospital where he was medically been examined and got admitted in the hospital. After taking the injury reports, he came to P.S. Basant Vihar and lodged the report which he got scribed by Aanand Kumar Goyal, i.e. Ex.Ka-1. After 4-5 days of the said incident, Sunil 9 Tyagi had died and during this period, he remained unconscious. 11. The evidence of P.W.1 Om Prakash is also corroborated by the evidence of P.W.2 Saraswati Devi, P.W.3 Raj Kumar and P.W.4 Ram Lal. 12. P.W.5 is Constable Satish Chandra who has stated that on 30.6.1986, he was posted in Kotwali Dehradun. On that day, he took the sealed body of Sunil Tyagi for conducting the post-mortem along with necessary papers. 13. P.W.6 is S.I. Jaipal Singh, who has stated that on 30.6.1986, he was posted as S.I. in Kotwali. On that day, in Doon Hospital, he prepared the inquest report of deceased Sunil Tyagi, i.e. Ex.Ka-2. Photo Lash is Ex.Ka-3, Challan Lash is Ex.Ka-4, letter sent to CMO for conducting post-mortem is Ex.Ka-5 and report of R.I. is Ex.Ka-6. The dead body was sealed and was sent for post-mortem through Constable Satish Chandra Sharma and Home Guard Virendra Dutt. 14. P.W.7 is Head Constable Kripal Singh who has stated that on 27.6.1986, he was posted as Head Moharrir at Police Chowki Basant Vihar. On that day, in the night at 12:20 A.M., complainant Om Prakash Garg lodged a report (Ex.Ka-1) on the basis of which he prepared the Chik FIR, i.e. Ex.Ka-8. The entry was also made in the G.D., the copy of G.D. is Ex.Ka-9. On 1.7.1986, on the basis of post-mortem report, the case was converted u/s 304 IPC. The entry was also made in G.D. in this regard, i.e. Ex.Ka-10. 10 15. P.W.8 is Dr. Vinod Kumar, who has stated that on 30.6.1986, he was posted as Senior Pathologist in the Coronation Hospital. On that day at 4:30 P.M., he conducted the post-mortem of dead body of Sunil Tyagi, whose dead body was brought to him by Constable Satish Chandra Sharma and Home Guard Virendra Dutt. He found the ante-mortem injury on the dead body of Sunil Tyagi, which has been mentioned in para 9 of this judgment. He also prepared the post-mortem report, i.e. Ex.Ka-11. 16. P.W.9 is Dr. P.S. Butola, who has stated that on 26.6.1986, he was posted as Emergency Medical Officer at Doon Hospital. On that day at 11:25 P.M., Smt. Saraswati was medically examined by him and he found the injuries on her person which have been mentioned in para 9 of this judgment. He also prepared the injury report in her respect i.e. Ex.Ka-12. On the same day at 11:00 P.M., he had medically examined Sunil Tyagi and he found the injuries on his person which have also been mentioned in para 9 of this judgment. He also prepared the injury report in respect of Sunil Tyagi i.e. Ex.Ka-13. In his cross- examination, he also proved the injury report (Ex.Kha- 2) in respect of injured Ram Singh (appellant) who was medically examined by him on 27.6.1986 at 6:00 A.M. 17. P.W.10 is S.I. P.S. Mehra, who has stated that the investigation of this case was entrusted to him on 16.12.1986. After completing the investigation, he filed a Titamma charge sheet against the co-accused Om Prakash @ Kaka (acquitted by the trial court), i.e. Ex.Ka-14. 11 18. P.W.11 is S.I. Sriniwas Sharma who has stated that on 26.6.1986, he was posted as S.I. at Police Chowki Basant Vihar. The case was registered in Police Chowki in the night of 26/27.6.1986 on the written report of Om Prakash Garg. He started the investigation and recorded statements of witnesses during the course of investigation. On 30.6.1986, he received the inquest report and the case was converted to Section 304 IPC from Section 308 IPC. He also prepared the site plan of the place of occurrence i.e. Ex.Ka-15. After completing the investigation, he filed the charge against the appellants/accused Basanta & Ram Singh, i.e. Ex.Ka.16. 19. Thereafter, the statements of the appellants/ accused Basanta and Ram Singh as well as of Om Prakash (acquitted by the trial court) were recorded u/s 313 of Cr.P.C. The oral and documentary evidence was put to them in question form, who denied the allegations made against them and stated that they have been falsely implicated due to enmity. In oral evidence, they have produced D.W.1 Sukhdev. However, in documentary evidence, they have produced Ex.Kha-1 i.e. copy of G.D. dated 27.6.1986 time 00:50 A.M.; injury report of appellant/accused Ram Singh i.e. Ex.Kha-2 and FIR lodged by D.W.1 Sukhdev i.e. Ex.Kha-3. 20. D.W.1 Sukhdev has stated in his evidence that appellant/accused Basanta is his son and appellant/accused Ram Singh is his son in law. He further stated that on 26.6.1986 at about 8-8:30 P.M., he came back from the Mandi with money and was 12 sitting in courtyard. He was giving the money to his wife, at that time, he was having Rs.7,500/- with him and lamp of kerosene oil was lit. Meanwhile, Hira Lal had come in his courtyard while running and behind him Mewa Lal (husband of injured Saraswati), Sundar, Ramaiya, Ram Lal, Om Prakash Garg (complainant), his two sons along with Sunil Tyagi also came there. All these persons started tussling with Hira Lal. His wife Mahadai stopped them to do so, then these persons pushed his wife and snatched Rs.7,500/- from her. Due to the pushing, his wife fell into a canal adjoining to courtyard. On the noise made by him, his son in law Ram Singh (appellant) came. When he along with Ram Singh tried to catch Mewalal, then appellant/accused Ram Singh was beaten by Mewalal with some weapon which hit on his hand. He also stated that wristwatch of Ram Singh was also snatched. In the meanwhile, these people ran away from the place of occurrence and they also pelted bricks and stones in his house due to which Sunil Tyagi received injuries and thereafter he fell down on the ground. He also stated that this road is adjacent to his house. Then, P.W.2 Saraswati asked Sundar not to pelt stone as Sunil Tyagi had received injury by stone. He further stated that at the time of quarrel, his son Basanta (appellant) was not there and was safeguarding Litchis & Mangoes. He had gone to Police Chowki Vasant Vihar at about 10:00 P.M. in the night. There, the police personnel told him to come with the written report. Then, he dictated the report to Roop Chand. After his signatures on the report, he lodged this report i.e. Ex.Kha-3. After that S.O. had directed him to sit and he also told him that he is going on the 13 spot along with S.I. He also stated that he had gone to the police station along with his son Jagdish and son in law Ram Singh (Appellant). He also stated that they sat in the police station for the whole night. Then in the morning, Ram Singh was sent for medical examination. He also stated that till when he remained at Police Chowki, Om Prakash Garg had not come there. 21. Sri Lokendra Dobhal, learned counsel for the appellants submitted that as per the evidence discussed above, the incident has not happened in such a matter 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 injury of the appellant/accused Ram Singh was 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. 22. From the evidence as discussed above, it has come that D.W.1 Sukhdev has lodged the report at P.S. Basant Vihar (Ex.Kha-3) which was entered into the G.D. i.e. Ex.Kha-1. It reveals that on 26.6.1986 at about 8-8:30 P.M. D.W.1 Sukhdev came back from the Mandi with money and was sitting in courtyard. He was giving the money to his wife, at that time, he was having Rs.7,500/- with him and lamp of kerosene oil was lit. Meanwhile, Hira Lal had come in his courtyard while running and behind him Mewa Lal (husband of injured P.W.2 Saraswati), 14 Sundar, Ramaiya, Ram Lal (P.W.4), Om Prakash Garg (complainant & P.W.1), his two sons along with Sunil Tyagi (deceased) also came there. All these persons started tussling with Hira Lal. His wife Mahadai stopped them to do so, then these persons pushed his wife and snatched Rs.7,500/- from her. Due to the pushing, his wife fell into a canal adjoining to courtyard. On the noise made by him, his son in law Ram Singh (appellant) came. When he along with Ram Singh tried to catch Mewalal, then appellant/accused Ram Singh was beaten by Mewalal with some weapon which hit on his hand. He also stated that wristwatch of Ram Singh was also snatched. In the meanwhile, these people ran away from the place of occurrence and they also pelted bricks and stones in his house due to which Sunil Tyagi received injuries and thereafter he fell down on the ground. He also stated that this road is adjacent to his house. Then, P.W.2 Saraswati asked Sundar not to pelt stone as Sunil Tyagi had received injury by stone. He further stated that at the time of quarrel, his son Basanta (appellant) was not there as he was safeguarding Litchis & Mangoes. Thereafter, he went to Police Chowki Basant Vihar at about 10:00 P.M. in the night. There, the police personnel told him to come with the original report. Then, he dictated the report to Roop Chand. After his signatures on the report, he lodged this report i.e. Ex.Kha-3. After that the S.O. directed him to sit and S.O. also told him that he is going on the spot along with S.I. He also stated that he had gone to the police station along with his son Jagdish and son in law Ram Singh (Appellant). He also stated that they sat in the police station for the whole night. Then in 15 the morning, Ram Singh was sent for medical examination. He also stated that till when he remained at Police Chowki, Om Prakash Garg had not come there. After that, the medical examination on the person of appellant/accused Ram Singh was conducted on 27.6.1986 at 6:00 A.M. by P.W.9 Dr. P.S. Butola and lacerated wound was also found in the inter- phalangeal space. About this FIR, the entry was also made in the G.D., i.e. Ex.Kha-1. The injury found on the person of appellant/accused Ram Singh is not explained by the prosecution and it is well settled law that non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the inference that “(1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; (2) that the witnesses who have not explained the injuries on the person of accused are lying on the most material point and therefore their evidence is unreliable; and (3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case”. Thus, from the above-said evidence, it is proved by the defence witnesses that the appellant/accused Ram Singh sustained injuries in the above-said incident and his injury report Ex.Kha-1 is also proved by the Medical Officer P.W.9 Dr.P.S. Butola. D.W.1 Sukhdev has also lodged the FIR of the same incident at Police Chowki Basant Vihar in which the appellant/accused Ram Singh has received injuries on the same night i.e. on 26.6.1986, however, this 16 injury was not explained by the prosecution. Even in the statements of prosecution witnesses, not a single word has been uttered by the prosecution witnesses about the injuries of appellant/accused Ram Singh which creates a reasonable doubt in the prosecution case. I am fortified in my view with the verdict of Hon’ble Apex Court in the case of “Babu Ram & others Vs. State