HIGH COURT OF UTTARAKHAND AT NAINITAL. (Court’s order whether the case is or not approved for reporting) (Chapter VIII Rule 32 (2) (b) Description of the Case. Crl. Appeal no. 828 of 2001 Old no. 2654/1988 Mohan Lal and others. … Appellants Vs. The State. … Respondent Approved for Reporting ___________________ Not approved for reporting. Date of Decision 22nd April, 2008. Initial of Judge. ---------------- Reserved Judgment HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal no. 828 of 2001 (Old no. 2654 of 1988) Mohan Lal and 4 others. ---------- Accused/appellants. Versus The State. ---------- Respondent Sri M.S. Pal, Sr. Advocate assisted by Sri D.N. Sharma learned counsel for the appellants. Sri Prabhakar Joshi, learned Brief Holder for the State. Dated: April 22, 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 18/21 November 1988 passed by the Sessions Judge, Nainital in Sessions Trial no. 12 of 1987 State vs. Mohan Lal and 4 others whereby the learned Sessions Judge has convicted the accused/appellants Mohan Lal, Bhoop Ram, Prem, Ramesh and Parsadi Lal for the offence punishable u/s 304 part-II read with Section 149 of The Indian Penal Code, 1860 (hereinafter referred to as the I.P.C.) and awarded sentence to each of them to undergro rigorous imprisonment for a period of 4 years’ and all the accused/appellants have been further convicted for the offence punishable u/s 324 read with Section 149 I.P.C. and awarded sentenced to each of them to undergo rigorous imprisonment for a period of 3 years’. The accused/appellant Mohan Lal and Bhoop Ram were again convicted for the offence punishable u/s 148 I.P.C. and awarded sentence to each of them to undergo rigorous imprisonment for a period of 2 years’ and the co- accused/appellants Prem, Ramesh and Parsadi Lal were convicted for the offence punishable u/s 147 I.P.C. and awarded sentence to each of them to undergo rigorous imprisonment for a period of one year. It is directed that all the sentences shall run concurrently. 2. The prosecution case, in brief, is that on 04.10.1986 at 11:15 p.m. PW-6 Ram Bharose Lal lodged a written report Ext. Ka-5 in the Police Station Kichha, the then district Nainital (Now district Udham Singh Nagar) in respect to the incident occurred on the same day at about 9:00 p.m. with the averments that on 03.10.1986 there occurred some hot exchange between him and his neighbour Mohan Lal for installing a shop and on account of which Mohan Lal had started animosity with him. On 04.10.1986 the accused persons, namely, Mohan Lal, Prem, Ramesh, Bhoop Ram and Parsadi Lal entered into his house taking LATHIES and TABALS in their hands. The accused persons Mohan Lal and Bhoop Ram were entered carrying TABALS in their hands while the other accused had LATHIES in their hands. They had started abusing. When the complainant and his family members asked them not to do so then all the five assailants started assaulting to his father-Chunni Lal, mother- Smt. Gomti and sister-Gyani with LATHIES and TABALAS in their hands with the intention to kill them. After receiving injuries, his father fell down in serious condition. His mother and sister also received injuries. On making screams, the witness Dogar Lal, Dr. Sharvan Kumar and other persons reached who challenged the accused persons, therefore all the five assailants fled from the place of occurrence. The complainant took his father, mother and sister to hospital. After admitting his father, he rushed to lodge report. On the basis of the written report Ext. Ka-5, the Chik report Ext. Ka- 14 was prepared by Head Moharir Govind Ballabh Joshi and a case crime no. 196 of 1986 u/s 147, 148, 149,307,504,452,324,323 I.P.C. in Police Station Kichha was registered against all the five accused persons on 04.10.1986 at 11:15 p.m. an entry in regard to the crime was made in the G.D. a carbon copy of which is Ext. Ka-15. 3. The injured Chunni Lal was initially examined medically by the Medical Officer PW 3 Dr. V.K. Joshi at Primary Health Centre. Kichha on 04.10.1986 at 10:00 p.m., who prepared medical report Ext. Ka-2 in this regard. Dr. V.K. Joshi had also examined the injured PW-4 Gyano at 10:30 p.m. and prepared medical report Ext. Ka-4. On this very day Dr. V.K. Joshi had also examined the injured PW-1 Gomti at 10:45 p.m. and prepared medical report Ext. Ka-3. 4. Later on the injured Chunni Lal succumbed to the injuries sustained by him in the hospital on 04.10.1986 at 11:45 p.m. 5. The investigation of the case was entrusted to SSI Chhote Singh Pawar, who in the process of investigation conducted PANCHAYATNAMA of the deceased Chunni Lal on 05.10.1986, after appointing the PANCHAS and prepared the inquest report Ext. Ka-7. The Investigating Officer after preparation of the Police Form no.13 Ext. Ka-8, Photo lash Ext. Ka-9, Letter in regard to sending the dead body to the Medical Officer Ext. Ka- 10, Letter to Medical Officer for sending back the clothes of the deceased Ext. Ka-11, Police Form no.33 Ext. Ka-12, sent the dead body for postmortem. 6. Postmortem of the body of Chunni Lal was conducted by PW-2 Dr. D.P. Joshi, Medical Officer, Civil Hospital, Haldwani on 05-10-1986 at 12:50 p.m. the postmortem report is Ex. Ka-1 on the record. 7. The Investigating Officer SSI Chhote Singh Pawar, after making spot inspection prepared the site plan of the place of occurrence, which Ext. Ka-13 on the record. 8. Thereafter the investigation of the case was entrusted to PW-8 Inspector Raj Pal Singh on 08.10.1986, who during investigation recorded the statement of the witness and after completing the investigation he submitted charge sheet u/s 147, 148, 149, 452, 302, 324, 323, 504 against the accused/ appellants on 08.10.1986 which is Ext. Ka-6 on the record. 9. Learned Chief Judicial Magistrate, Nainital 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 05.01.1987 u/s 209 Cr.P.C. 10. On 28.07.1987, the learned Sessions Judge, Nainital after hearing the parties framed the charge of offence punishable u/s 148, 302/149, 307/149 and 324/149 I.P.C. against the accused persons Mohan Lal and Bhoop Ram. The charge was read over and explained to the accused persons who pleaded not guilty and claimed to be tried. And on the same day, the learned Sessions Judge framed separate charge of offence punishable u/s 147, 302/149, 307/149 and 324/149 I.P.C. against the accused persons Prem, Ramesh and Parsadi lal. The charge was read over and explained to the accused persons who pleaded not guilty and claimed to be tried. 11. The prosecution, to prove its case, has examined PW-1 Smt. Gomti injured and eyewitness, PW-2 Dr. D.P. Joshi M.O., who conducted autopsy on the dead body of the deceased, PW-3 Dr. V.K. Joshi Medical Officer who conducted medical examination of the injured, PW-4 Smt. Gyano injured and eyewitness, PW-5 Constable Mohan Singh, PW-6 Ram Bharose informant, PW-7 Sharvan Kumar and PW-8 Inspector Raj Pal Singh Investigating Officer. 12. 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 and have stated that they have been falsely implicated in the case. The accused persons did not produced any evidence in their defence. 13. After appreciating all the evidence available on record and hearing the learned counsel for the parties, the learned Sessions Judge convicted the accused/appellants Mohan Lal, Bhoop Ram, Prem, Ramesh and Parsadi Lal for the offence punishable u/s 304 part-II read with Section 149 I.P.C. and awarded sentence to each of them to undergo rigorous imprisonment for a period of 4 years’ and all the accused/appellants have been further convicted for the offence punishable u/s 324 read with Section 149 I.P.C. and awarded sentence to each of them to undergo rigorous imprisonment for a period of 3 years’. The accused/appellant Mohan Lal and Bhoop Ram were again convicted for the offence punishable u/s 148 I.P.C. and awarded sentence to each of them to undergo rigorous imprisonment for a period of 2 years’ and the co-accused/appellants Prem, Ramesh and Parsadi Lal were further convicted for the offence punishable u/s 147 I.P.C. and awarded sentence to each of them to undergo rigorous imprisonment for a period of one year. Aggrieved with the impugned judgment and order the accused/appellants have preferred the present appeal. 14. I have heard Sri M.S. Pal, learned Senior Counsel assisted by Sri D.N. Sharma, learned counsel for the accused/appellants and Sri Prabhakar Joshi, learned Brief Holder for the State. 15. Before further discussion, it is pertinent to mention the injuries found in the person of the injured Chunni Lal, who later on died. The injured Chunni Lal was initially examined medically by the Medical Officer PW3 Dr. V.K. Joshi at Primary Health Centre, Kichha on 04.10.1986 at 10:00 p.m., who prepared medical report Ext. Ka-2 in this regard. The following injuries were found on the body of the injured Chunni Lal:- i. incised wound 3 cm. x 0.5 cm. x brain deep on right side of forehead 1 cm. above the middle of right eye brow, brain matter coming out of the wound, fresh blood was oozing from the wound, right eye was bulging; 11. Contusion 4 cm. x 4 cm. on the right side of head 7 cm. above the right ear, colour redish. General condition of the patient was low; the patient was unconscious, blood pressure 80 mm. of Hg (mercury), pulse 120/mnt. feeble regular. The doctor had advised that X-Ray will be done later on as condition of the patient was very low. The doctor has opined that the injury no. 1 was grievous in nature. The injury no. 2 was kept under observation and X-ray of skull was advised. The injury no. 1 was caused by sharp edge weapon and the injury no.2 by blunt object. 16. The injured Smt. Gyano PW-4 was examined medically by the Medical Officer PW 3 Dr. V.K. Joshi at Primary Health Centre, Kichha on 04.10.1986 at 10:30 p.m. and prepared medical report Ext. Ka-4. The following injuries were found in her body:- Incised wound 2 cm. x 0.5 cm x muscle deep on the right cubital fossa laterally, fresh blood was oozing out of the wound. In the opinion of the doctor the injury was fresh and simple in nature and the injury was caused by sharp edge weapon. 17. The injured Smt. Gomti PW-1 was also medically examined by the Medical Officer PW 3 Dr. V.K. Joshi at Primary Health Centre, Kichha on 04.10.1986 at 10:45 p.m. and prepared medical report Ext. Ka-3. The following injuries were found in her body:- Incised wound 3 cm. x 0.5 cm. x muscle deep on the posterior aspect of right hand in between wrist joint and knuckles, fresh blood was oozing out of the wound. In the opinion of the doctor the injury was fresh and simple in nature and the injury was caused by sharp edged weapon. 18. According to the inquest report Ext. Ka-7 prepared by the Investigating Officer, the injured Chunni Lal succumbed to the injuries sustained by him in the hospital on 04.10.1986 at 11:45 p.m. Postmortem of the body of Chunni Lal was conducted by PW-2 Dr. D.P. Joshi, Medical Officer, Civil Hospital, Haldwani on 05.10.1986 at 12:50 p.m. the postmortem report is Ext. Ka-1 on the record. On external examination, the following ante- mortem injury was found on the dead body:- Lacerated wound 3.5 cm. x 1 cm. x bone deep with fracture on frontal bone right side of forehead 1cm. above right eye brow with brain substance protruding out and pieces of bone chips found over the brain substance. 19. In the opinion the doctor the death of the deceased Chunni Lal happened about half day before postmortem. Rigor mortis was present on his hand and feet. On internal examination, the doctor found huge amount of liquid blood over right side of cerebrum and parietal part of brain. Chips of bone also found which lacerated frontal lob of cerebrum. Liquid blood was found in all chambers of heart. The doctor had opined that the death of Chunni Lal had occurred on account of shock, haemorrhage and coma resulting from the aforesaid injury on the brain. 20. The prosecution to prove its case, first of all, has examined PW-1 Smt. Gomti, who has stated that Chunni Lal was her husband. She knows the accused persons Parsadi Lal, Bhoop Ram, Prem, Mohan Lal and Ramesh present in the Court. They reside beside her house. Leaving the accused Parsadi Lal, rest of the accused are the sons of Parsadi Lal. The occurrence was of one year two months before. At 9.00 p.m., she, her husband Chunni Lal and her daughter Gyano Devi were present at the home. At 9:00 p.m. all the accused persons entered into their house. The accused Bhoop Ram and Mohan Lal were armed with TABALS and rest of the accused persons had LATHIES in their hands. All the accused persons had started inflicting injuries to her husband and on listing his screams she herself and her daughter Gyano Devi reached there. Then the accused Bhoop Ram and Mohan Lal had inflicted injuries to her and her daughter with the TABLES. They received injuries in their hands. On hearing noise Dungar Lal, Sharvan Kumar, Kallu Lal and others came there and they challenged the accused persons therefore, the accused persons fled from the place of occurrence taking their weapons in their hands. Her son Ram Bharose also reached at the time when the MARPIT was going on. Condition of her husband was critical. He took Chunni Lal and the injured to the hospital. She and her daughter were medically examined by the doctor. Her husband had died after half an hour at the hospital. The evidence of this witness on each and every aspect is reliable, believable and trustworthy. 21. PW-2 is Dr. D.P. Joshi Medical Officer, who has stated that on 05.10.1986 he was posted as such in the Civil Hospital, Haldwani. On that day Constables Mohan Singh and Amar Singh took a sealed dead body of Chunni Lal and identified it. The deceased was aged about 68 years’. In the column pertain to general age, by mistake, he entered as 86 years’ and on the top of the postmortem report he had entered 68 years’ which is correct. Rigor mortise was present in the hands and feet. On examination, he found the injury mentioned in para-18 on the body of the deceased, which was caused before the death. On internal examination, the doctor found huge amount of liquid blood over right side of cerebrum and frontal part of brain. Chips of bone which had lacerated the frontal lob of cerebrum was also found. The doctor had opined that the death of Chunni Lal had occurred on account of shock, haemorrhage and coma resulting from the aforesaid injury on the brain. 22. PW-2 has further deposed that he had removed one shirt, one Dhoti, one undershirt and one underwear from the dead body and sealed them. He prepared postmortem report, after examination of the dead body, the same is on his handwriting and under his signatures and marked as Ext. Ka-1. The injuries found on the body of the deceased were sufficient to cause death. He had handed over the dead body and the papers to the Constable. 23. P.W.3 is Dr. V.K. Joshi, Medical Officer, who has stated that on 04.10.1986 he was posted as such in the Primary Health Centre, Kichha. On that day at about 10:00 p.m. he examined the injured Chunni Lal. On examination, the doctor has found the injuries mentioned in para-15 of the above, in the body of Chunni Lal. After medical examination, he prepared the injury report Ext. Ka-2, which is in his handwriting and under his signatures. Thumb impression of the injured was taken on the report. The injury no. 1 could have been caused by TABAL and the injury no. 2 could have been caused by LATHI at 9:00 p.m. On the same day at about 10:45 p.m. he examined Smt. Gomti W/o Chunni Lal aged about 60 years’ and found the injury mentioned in para-17 of the above on the person of the injured Gomti. The injury could have been caused with the weapons like TABAL. He prepared injury report Ext. Ka-3 which is in his handwriting. Thumb impression of the injured was taken on the injury report. On this very day at 10:30 p.m. he also examined Smt. Gyano aged about 40 years’ and found the injury mentioned in para-16 of the above on the body of the injured Gyano. The injury could have been caused with the weapon like TABAL. He prepared injury report Ext. Ka-4 which is in his handwriting. Thumb impression of the injured was taken on the injury report. The said injury could have been caused on 04.10.1986 at 9:00 p.m. 24. P.W.4 Smt. Gyano is the injured eyewitness who has deposed that the incident was of one year 2 months before. She was residing with her parents in their house. She, her father Chunni Lal and her mother were present in the house on the date of incident at about 9:00 p.m. At about 9:00 p.m. the accused persons, present in the Court, Parsadi and his sons Bhoop Ram, Prem, Mohan Lal and Ramesh entered in their house. Bhoop Ram and Mohan Lal were armed with TABALS and rest of the accused persons were armed with LATHIES, FARSA and TABAL are alike. All the five accused had assaulted to her father Chunni Lal with the weapon in their respective hands. Her father screamed. The MARPIT took place inside their house. Hearing upon the screams of her father, she and her mother reached there. The accused persons had also inflicted injuries to both of them. They were medically examined in the Govt. Hospital, Kichha. Her father Chunni Lal was also medically examined in the same hospital but he succumbed within half and hour after reaching in the hospital. Her brother took them to the hospital. After the incident taken place, her brother had reached, who took them hospital. This witness has been cross examined by the defence counsel at length; but nothing has come out in his cross examination which may create doubt in his statements. The evidence of this witness is reliable, believable and trustworthy. 25. P.W.-5 is Constable 459 C.P. Mohan Singh who has deposed in the affidavit filed by him in the Trial Court, that on 05.10.1986 he was posted as such in the Police Station Kichha. The injured was taken from the place of incident to Civil Hospital, Kichha for medical examination where the injured was died. He alongwith the Sub Inspector had gone to hospital, where the Sub Inspector had sealed the dead body and handed over it to him and one Constable Amar Singh for taking the same to conduct postmortem. On 05.10.1986 he identified the dead body as the body of Chunni Lal before the doctor in the Civil Hospital, Haldwani. After completion of the postmortem the doctor had handed over one envelop and a sealed bundle of clothes, which were submitted in the MALKHANA. The dead body and the seal were intact during his possession and nobody was allowed to touch it. 26. PW-6 is Ram Bharose, who has deposed that he knows the accused persons before the incident whose names are Parsadi Lal, Bhoop Ram, Prem Lal, Mohan Lal and Ramesh. All of them reside beside his house. The incident had taken place one year 2 ½ months’ before. A quarrel had taken place one day before the incident between him and the accused Mohan Lal in respect of an open shop (FAR). And the accused persons were annoyed with them. At night at 9:00 p.m. the accused persons entered in his house. All the family members were present there. The accused persons Bhoop Ram and Mohan Lal were armed with TABALS and the rest had LATHIES in their hands. Just after entering in the house; the accused persons had assaulted to his father. Her mother Gomti and sister Gyano were beaten by the accused persons. On his screams Dungar Lal, Dr. Saxena and other persons had reached there and on being challenge by the witnesses, the accused persons fled from the place of incident with their respective weapons. He took his father, mother and sister to the hospital. In serious condition, his father was admitted in the hospital. He scribed the report to Santosh Kumar in the hospital. What he dictated the same was written in the report. The report was read over and after listening the report, he put his thumb impression on the written report. The written report is Ext. Ka-5 on the record. He then lodged the rep0rt in Police Station Kichha. His father was succumbed in the hospital due to the injuries sustained. This witness has been cross examined by the defence counsel at length; but nothing has come out in his cross examination which may create doubt in his statements. The evidence of this witness is reliable, believable and trustworthy. 27. PW-7 is Sharvan Kumar, Retd. Assistant Veterinary Development, who has stated that he knows the accused persons present in the Court. He was acquitted with the deceased Chunni Lal. 04.10.1986, he was giving treatment to a buffalo in front of the house of Chuni. On the KHARANJA in front of the house of Chunni Lal he heard noises. He was there. There was no light and he did not saw any one. 28. PW-8 is Inspector Raj Pal Singh, who has stated that report of this case was lodged on 04.10.1986 at 11:15 p.m. at Police Station Kichha, Investigation of the case was conducted by SSI Chote Singh Panwar. Investigation of the case was handed over to him on 08.10.1986. On the same day he recorded the statement of Smt. Gomti, Smt. Gyano, Sharvan Kumar Saxena and others and after completing the investigation on 08.10.1986 he submitted charge sheet against the accused persons. The charge sheet is Ext. Ka-6, which is in his hand writing. He recognizes handwriting of SSI Chote Singh Panwar. The inquest report, Chalan Lash, Photo Lash, two letters and Memorandum have been prepared by said Chote Singh Panwar which are Ext. Ka-7 to Ext. Ka-12 on the record. The site plan Ext. Ka-13 is also in the handwriting of Chote Singh Panwar. The Chik Report, which is before him, is on the handwriting of H.M. Govind Ballabh and entry in this regard was made in RAPAT no. 41 dated 04.10.1986 by the Head Moharir Govind Ballabh. The Chik Report and copy of entry of G.D. are Ext. Ka-14 and Ext. Ka-15 on the record. 29. 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 and have stated that they have been falsely implicated in the case. The accused persons did not produce any evidence in their defence. 30. Learned Senior Counsel Sri M.S. Pal has argued that the as per the evidence produced by the prosecution, no case for the alleged offence is made out against the accused/appellants. But as per the evidence discussed above PW-1 Smt. Gomti Devi who is the eyewitness and injured in the incident has categorically stated that on the date of occurrence at 9:00 p.m., when she, her husband Chunni Lal and her daughter Gyano Devi were present at the home at that time all the accused persons entered in their house. The accused Bhoop Ram and Mohan Lal were armed with TABALS and rest of the accused persons have LATHIES in their hands. All the accused persons