RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.785 OF 2001 (OLD NO.2243 /1991) Mehar Singh & others ……… Appellants Versus The State ……… Respondent Dated: July 27, 2009 Mr. Arvind Vashith, learned counsel for the appellants Mr. S.S. Adhikari, learned AGA for the State HON. DHARAM VEER, J. This criminal appeal, preferred by the appellants u/s 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 29.11.1991 passed by Sessions Judge, Tehri Garhwal in S.T. No.44/1988, State Vs. Mehar Singh & others, and S.T. No.8/1989, State Vs. Harish Chandra & another, whereby the learned Sessions Judge convicted the accused/appellants Mehar Singh @ Bhuria, Surat Singh, Gabbar Singh, Pushkar Singh, Harish Chandra, Mor Singh @ Bangolia and Guthiaru @ Kor Singh under Section 396 of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced each of them to undergo rigorous imprisonment for a period of ten years. The accused/appellants Mor Singh @ Bangolia and Guthiaru @ Kor Singh were further convicted u/s 3 of Protection of Civil Rights Act, 1955 (hereinafter to be referred as the Act) and were sentenced to three months R.I. and a fine of Rs.100/- and in default of payment of fine, additional R.I. for 15 days was awarded. The accused/appellants Mor Singh @ Bangolia and Guthiaru @ Kor Singh were further convicted u/s 7 of the Act and were sentenced to three months R.I. and a fine of Rs.100/- and in default of 2 payment of fine, additional R.I. for 15 days was awarded. All the sentences were directed to run concurrently but the sentences awarded in default of payment of fine were directed to run separately. The co-accused persons, namely, Baisakh Singh, Gwanu, Mukand Singh, Bachan Singh, Jogi, Nathi Singh, Survir Singh, Smt. Soni, Smt. Hema Devi, Smt. Ludra Devi, Smt. Darhsani Devi, Smt. Bani Devi, Smt. Bimla Devi were acquitted of the charges levelled against them by the trial court. 2. I have heard Sri Arvind Vashith, learned counsel for the appellants as well as Sri S.S. Adhikari, learned A.G.A. for the State. Perused the entire material available on record. 3. During the pendency of this appeal the appellant no.5-Harish Chandra and appellant no.7- Guthiaru @ Kor Singh were reported to be died. Hence, the appeal preferred by the accused/appellants Harish Chandra and Guthiaru @ Kor Singh stood abated vide order of this High Court dated 06.03.2009. 4. In brief, the prosecution case is that Sundru lodged the report before Patwari, Halka Mankhata, Tehsil Tehri stating therein that on 28.6.1987 at about 10-11 A.M. his son Ram Dayal was going to fetch water by two Banthas from the tap fixed in the public way. Meanwhile, accused/appellant Mor Singh @ Bangolia came near the tap in an annoyed manner and said that **lkys MkseMs+ ¼gfjtu½ ikuh Hkjus okyk cuk gqvk gS** and thrown the Banthas and also slapped his son. On hearing the noise of his son, his brother Kirti reached at the spot. After resolving the matter of untouchability all the persons went back to their house. It was further alleged that at 11:30 P.M. on the same day, his son having torch and bantha with him 3 was going to fetch water and his sister-in-laws, namely, Smt. Sheera Devi and Bindra Devi had also gone to fetch water. When they were fetching water then the accused/appellant Guthiaru (reported to be died) and Surat Singh came there and the accused Surat Singh said to Guthiaru that **MkseM+ksa dks ikuh er Hkjus nks**A Surat Singh thrown the half filled Bantha to which Guthiaru kicked. Accused/appellants Surat Singh and Guthiaru assaulted his son with lathies. Then his son and his both sister-in-laws ran towards his house. After approaching his son and his sister-in-laws, the accused/appellants Guthiaru and Pulam Singh having lathies in their hands reached in his courtyard. It was further alleged that Surat Singh fallen his wife-Jumla Devi, who was standing in the courtyard and sat on her chest. Guthiaru caused injuries on the head, chest and back of his wife. Meanwhile, accused Mehar Singh @ Bhuria and Naru @ Narayan having Lathies in their hands reached in the courtyard and caused injuries to his brother Bhagirathu. Accused Pulam Singh having axe in his hand also came in the courtyard and the accused Guthiaru exhorted Naru @ Narayan and Pulam Singh and said that **Mkse dks ekj nks**A Due to fear, Bhagirathu went inside the room and locked the door from inside. Pulam Singh broke the door with his axe and along with Pulam Singh, Mehar Singh @ Bhuria, Naru @ Narayan and Guthiaru @ Kor Singh entered into the room. Lamp was burning in the room. Accused Mehar Singh snatched axe from Pulam Singh and with intention to kill his brother, caused injuries on his head and body. Accused/appellant Naru @ Narayan snatched Daranti from the hand of Pulam Singh and caused injuries to his brother. Meanwhile, Subda Devi, Chandra Devi, Kosa Devi, Gabbar Singh, Harish Chandra, Baishakh Singh, Gwanu, Mukand Singh, Bachhan Singh, Jogi @ Jogeshwar, Nathi Singh, 4 Shurbeer Singh, Smt. Sauni Devi, Smt. Heema Devi, Smt. Ludra Devi, Smt. Darshani, Smt. Banni Devi, Smt. Vimla Devi and Pushkar Singh having lathies, stones, daranti and axe in their hands reached in the courtyard and with intention to kill his family, surrounded them. It was further alleged that when Mehar Singh, Naru @ Narayan, Guthiaru @ Kor Singh and Pulam Singh came outside the room, the accused/appellants Gabbar Singh, Harish Chandra along with some other persons entered into the room where his brother Bhagirathu was crying in serious injured condition. Accused Gabbar Singh and Harish Chandra thrown the jewellery and money box of his brother in the courtyard and the accused Pushkar Singh damaged the aforesaid articles with stone in front of other accused persons. Rs.2,000/-, 2 wrist watches, one silver necklace (Kanthi) of 80 Tola, one pair of silver Dhagule of 60 Tola, a gold nose-ring (Bulak) of one Tola and a gold nose-pin (Fuli) were also looted. The other accused persons broke radio by pelting stone. It was further alleged that some of the accused persons then went above the house and removed Pathalia from there. Some of them also entered into his house without his permission and broken the wooden box and looted Rs.2,700/- cash, one nose-ring of four tola gold, four silver gulsari of about 20 tola from the box. When he and his children raised alarm for their rescue then one of the accused threatened to their life. Thereafter the accused persons went back to their houses. Due to threat of the accused persons that whoever are alive in his family they will be killed by them, he at about 12:30 A.M. in the night, hide his family in the agricultural field outside the village. After that he went to take his brother Bhagirathu and brought him among his other family members. He then reached at primary health centre where medical examination of the injured was done. On the advice of 5 medical officer his entire family reached Tehri Hospital where his brother Bhagirathu and other family members got medically examined. With the above-said averments, he lodged the F.I.R. before Patwari, Halka Mankhata, Tehsil Tehri, District Tehri Garhwal on 1.7.1987 at 6:00 P.M. That F.I.R. is Ext.Ka-1. (In Rural Hilly Areas of State of Uttarakhand, the Patwaris and certain Revenue Officials are being vested with police powers vide U.P. Govt. Notification No.494/VIII-418-16 dated 7.3.1916). On the basis of that F.I.R., Chik F.I.R. was prepared, which is Ext.Ka-3. Necessary entries were also made in the G.D., copy of which is Ext.Ka-4. Initially, the investigation of this case was entrusted to Patwari Viddyadutt Chamoli (PW6) which later on was transferred to S.I. Inder Jeet Singh (PW7). On 29.6.1987 at 09:30 A.M., Dr. M.S. Bhandari (PW8) medically examined the injured Bhagirathu and prepared the injury report Ext.Ka-16. Other injured persons, namely, Smt. Jumla Devi, Kirti, Ram Dayal, Km. Parineeta and Smt. Shira Devi were also got examined by the same medical officer on 29.6.1987 and their medical reports were prepared, which are Ext.Ka-17, Ka-18, Ka-19, Ka-20 and Ka-21, respectively. On 1.7.1987, injured Bhagirathu died. Thereafter, the I.O. prepared the inquest report (Ext.Ka- 10) and other documents viz. Ext.Ka-11 and Ext.Ka-12. After that the dead body was sent for post-mortem examination, which was conducted on 2.7.1987 at 1:20 P.M. by Dr. J.P. Chamoli (PW4). The post-mortem report is Ext.Ka-2. During the course of investigation, the Patwari/I.O. recorded the statements of the witnesses and prepared the site plan (Ext.Ka-5) of the place of occurrence. He also took the blood stained and plain soil from the place of occurrence and a blood stained towel and prepared the FARD (Ext.Ka-6). The I.O. also prepared the FARD Ext.Ka-7. Vide order dated 24.11.1987, the 6 investigation of this case was transferred to Circle Inspector Inder Jeet Singh (PW7). That order is Ext.Ka-9. On completion of the investigation, the I.O. submitted the charge sheet (Ext.Ka-13) against the 18 accused persons. After some time, charge sheet against the accused/appellants Harish Chandra and Pushkar Singh was also submitted by the I.O., which is Ext.Ka-15. 5. Learned Munsif Magistrate, Tehri committed the case to the court of Sessions on 9.12.1988 after giving necessary copies to the accused/appellants as provided u/s 207 Cr.P.C. 6. On 18.5.1989, learned Sessions Judge, Tehri Garhwal framed the charge of offence punishable under Section 396 IPC against the accused/appellants Mehar Singh, Guthiaru, Mor Singh, Surat Singh, Gabar Singh, Hari Chand, Pushkar Singh and the co-accused Baisakh Singh, Gwanu, Mukand Singh, Bachan Singh, Jogi, Nathi Singh, Survir Singh, Smt. Sauni, Smt. Hima Devi, Smt. Ludra Devi, Smt. Darhsani Devi, Smt. Bani Devi, Smt. Bimla Devi (acquitted by the trial court). Charge u/s 3 and 7 of the Act was also framed against the accused/appellants Mor Singh @ Bangoliya, Guthiaru @ Kor Singh and Surat Singh. The charge was read over and explained to each of the accused/appellants to which they pleaded not guilty and claimed to be tried. 7. In order to prove its case, the prosecution has examined PW1 Sundru, complainant of the case; PW2 Ram Dayal; PW3 Shira Devi; PW4 Dr. J.P. Chamoli, who conducted the post-mortem examination of the dead body of the deceased; PW5 Sauna Singh, PW6 Vidhyadatt Chamoli, Patwari/I.O. of the case; PW7 Circle Inspector 7 Inder Jeet Singh, I.O. of the case and PW8 Dr. M.S. Bhandari, who medically examined the injured persons. 8. Thereafter the statements of the accused/appellants and the co-accused persons were recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to each of them in question form, who denied the allegations made against them. However, they have not produced any oral or documentary evidence in their defence. 9. After appreciating the entire material available on record and hearing learned counsel for the parties, learned Sessions Judge, Tehri Garhwal vide his judgment and order dated 29.11.1991 convicted and sentenced the accused/appellants as stated above. However, the co- accused persons, namely, Baisakh Singh, Gwanu, Mukand Singh, Bachan Singh, Jogi, Nathi Singh, Survir Singh, Smt. Sauni, Smt. Hima Devi, Smt. Ludra Devi, Smt. Darhsani Devi, Smt. Bani Devi, Smt. Bimla Devi were acquitted of the charges levelled against them by the trial court. Being aggrieved by the said judgment and order, the accused/appellants have preferred the present appeal. 10. Before further discussion, it is pertinent to mention the injuries found on the body of the injured Bhagirathu, Smt. Jumla Devi, Kirti, Ram Dayal and Km. Parineeta, Smt. Shira Devi who got examined by Dr. M.S. Bhandari on 29.6.1987 at 9:30 AM, 12:00 Noon, 1:00 PM, 11:00 AM, 12:30 PM and 10:30 AM, respectively and their injury reports were prepared. Injury report of Bhagirathu is Ext.Ka-16, which is reproduced hereunder:- (i) Lacerated wound at the left parietal bone measuring 5cm x 0.5cm x bone deep, margins 8 irregular, fresh blood oozing out, situated 6cm above from the base of the left ear. Horizontally placed. (ii) Lacerated wound at the left parietal bone measuring 4cm x 0.5cm x bone deep, margins irregular, fresh blood oozing out, wound is placed 4cm from the base of the left ear, wound is vertically placed, upper end of which originates from the near one end of the injury no.1. (iii) Lacerated wound at the left parietal bone situated at the junction of injury no. one and injury no.2 measuring 1.5 cm x 0.3cm x bone deep. Margins irregular, fresh blood oozing out. (iv) Lacerated wound measuring 1cm x 0.2cm left parietal bone situated 4cm from the base of the left ear, injury originating from the injury no.1. (v) Lacerated wound measuring 5.5cm x 0.5cm x bone deep situated at the occipital bone, 9cm from the base of the left ear. Fresh blood oozing out, margins irregular. (vi) Linear abrasion measuring 11cm at the left cheek extending from the left zygomatic bone to the left side of neck. Colour brownish. (vii) Abrasion 2cm at left cheek at left zygomatic bone, colour brownish. (viii) Linear abrasion measuring 9cm at the right upper arm on the medial side, colour brownish, vertically situated. (ix) Linear abrasion measuring 7cm at the right deltoid muscle, vertically situated, colour brownish. 9 (x) Abrasion measuring 3cm at the lateral side of the right thigh, 22cm above the right knee joint, colour dark brown. (xi) Multiple abrasion at the left hand, extending from back of the left shoulder to the fingers of the left hand, colour varying from light red to dark brown. (xii) Right pupil dilated, not reacting to light, left pupil normal but not reacting to light. (xiii) Left eye lid upper slight swollen. Injection of blood at the outer side of left sclera (conjunctiva). (xiv) Breathing laboriously, the patient is unconscious, not arousing by any mean. Opinion:- X-ray skull is advised for any fracture of skull bone. (i) Injury No.1 to 5 are caused by sharp and hard projecting surface weapon, injury grievous. (ii) Injury nos.6 to 11 are caused by hard and blunt object. (iii) Rest injury consequence of head injury. 11. Injury report of Smt. Jumla Devi is Ext.Ka-17, which is reproduced hereunder:- (i) Abrasion at the lateral end of the right eyebrow, measuring 0.5cm x 0.5cm, colour of the wound is brown, fresh blood oozing out after cleaning the wound. (ii) Swelling of the temporal region, 3cm x 3cm, 2cm above the right eyebrow. (iii) Multiple abrasion on the back and the right side, colour changing from reddish to brownish. 10 (iv) Bruises at the right side of the chest extending from the middle of the sternum to the right nipple, measuring 6cm each, there are two bruises parallel to each other, distance between two is 1cm. Opinion:- All injuries are of simple in nature, caused by hard and blunt object. 12. Injury report of Kirti is Ext.Ka-18, which is reproduced hereunder:- (i) Lacerated wound at the vault of the skull measuring 4cm x 0.2cm x skin deep. Fresh blood oozing out after cleaning the wound, margins irregular, colour reddish, situated at the vault of skull 2.5cm from the hair line at the middle of forehead. (ii) Abrasion at the medial side of the right leg, near knee (right) joint, colour dark brown, measuring 2cm x 0.5cm. (iii) Abrasion at the middle and back of the right forearm 12.5cm from the o/c craner process of right hand. Opinion:- All the injuries are of simple in nature. Injury no.1 caused by sharp and hard projecting object. Injury no.2 and 3 caused by hard and blunt object. 13. Injury report of Ram Dayal is Ext.Ka-19, which is reproduced hereunder:- (i) Lacerated wound at the left parietal bone measuring 1cm x 1cm x skin deep. Blood oozing out, margin irregular. The wound is situated 10.5cm above the base of left ear. Opinion:- The wound is caused by hard and blunt object. Injury is simple. 11 14. Injury report of Km. Parineeta is Ext.Ka-20, which is reproduced as under:- (i) Lacerated wound at the right parietal bone measuring 1.5cm x 0.3cm x skin deep. Fresh blood oozing out after cleaning the wound. Margins irregular. Colour of wound reddish. Opinion:- Simple injury caused by hard and blunt object. 15. Injury report of Smt. Shira Devi is Ext.Ka-21, which is reproduced hereunder:- (i) Abrasion measuring 0.5cm at the vault of the skull 3.5cm from the hair line at the mid of forehead. Colour brown. Opinion:- Injury is simple, caused by hard and blunt object. 16. To prove the above-noted injury reports, the prosecution has examined PW8 M.S. Bhandari, Medical Officer who has stated that on 29.6.1987 he was posted on the aforesaid post at Primary Health Centre, Cham. On that day at 09:30 A.M. he medically examined the injured Bhagirathu and found the above-noted injuries on his body. He has proved the injury report Ext.Ka-16. He further stated that on the same day he also medically examined Smt. Jumla Devi, Kirti, Ram Dayal, Km. Parineeta, Smt. Shira Devi at 12:00 Noon, 1:00 P.M., 11 A.M., 12:30 P.M., 10:30 A.M., respectively. He has proved the injury reports Ext.Ka-17 to Ka-21. 17. On 1.7.1987 injured Bhagirathu died. Thereafter, his dead body was sent for post-mortem examination. On 2.7.1989 at 01:20 P.M. Dr. J.P. Chamoli conducted the post-mortem examination of the dead 12 body of the deceased and prepared the post-mortem report (Ext.Ka-2). Following ante-mortem injuries were found on the dead body of the deceased:- (i) Lacerated wound on left parietal area of scalp 5cm x 0.5cm x bone deep above 6cm left ear. (ii) Lacerated wound on left parietal area 4cm x 1/2 cm x bone deep, above 4cm from base of left ear pus formation positive. (iii) Lacerated wound left parietal area 1.5cm x 0.3cm x bone deep between injury no.1 and 2. Pus formation positive. (iv) Lacerated wound 1cm x 0.2cm x muscle deep on left parietal area of scalp situated 4cm from base of left ear. (v) Lacerated wound 5.5cm x 0.5cm x bone deep at the area of occipital. Pus formation positive. Bone about 9cm from left ear towards back. Pus positive. (vi) Abrasion linear 11cm at base of left cheek from neck to zygomatic area, black brown in colour. (vii) Abrasion 2cm at left cheek over zygomatic bone above injury no.6, black brown in colour. (viii) Linear abrasion about 9cm at right arm on inner side. Black brown in colour. (ix) Linear abrasion about 7cm at right arm on outer side and upper part. Brown black in colour. (x) Linear abrasion about 3cm in outer side of right thigh, about 21 cm above right knee joint. (xi) Multiple abrasion left hand on dorsal, brown in colour. (xii) Black eye left side brown black in colour. 13 18. To prove the post-mortem report (Ext.Ka-2), the prosecution has examined PW4 Dr. J.P. Chamoli, Medical Officer who has stated that on 2.7.1987 he conducted the post-mortem examination of the dead body of the deceased and found the above-noted ante- mortem injuries. He further stated that in his opinion the deceased had died due to head injuries. The said injuries could be caused on 28.6.1987 at 11:00 PM. He has proved the post-mortem report Ext.Ka-2. 19. Further to prove its case, the prosecution has examined PW1 Sundru, who has stated that on 28.6.1987 at about 10:30 AM his son Ram Dayal was fetching water from the public water tap meanwhile accused/appellant Mor Singh came there and said that **MkseM+k T;knk ikuh Hkjus okyk curk gS** and removed the half filled Bantha. Accused Mehar Singh slapped his son, due to which his son started crying. Then his brother Kirti went there, who requested to resolve the matter of untouchability. Then they went back to their house. He further deposed that on the same day at 11:30-12:00 in the night, Ram Dayal, Smt. Shira Devi and Bindra Devi went to fetch water. When his son placed Bantha under the tap, the accused/appellant Surat Singh said that **bu MkseM+ksa dks ikuh er Hkjus nksA** Then Surat Singh kept aside the half filled Bantha and Guthiaru @ Kor Singh thrown the Banthas in the field. It was further deposed that Surat Singh and Guthiaru beaten his son on which his son, Shira Devi and Bindra Devi ran towards house. The accused/appellants Surat Singh, Kor Singh and Pulam Singh approached them and reached in the courtyard of his house. His wife Jumla Devi was standing there. After falling his wife, Surat Singh climbed on her chest. Kor Singh assaulted his wife with Lathies. Narayan Singh and 14 Mehar Singh having lathies in their hands came in the courtyard. His brother Bhagirathu was sleeping in his room, he heard the noise and came outside. His brother asked not to commit Marpeet then Kor Singh said that **bl Mkse dks tku ls ekj nksA** On this, Pulam Singh armed with axe reached in the courtyard. Due to fear, his brother Bhagirathu went inside the room and locked the door. Pulam Singh broke the door from his axe. Then Pulam Singh, Mehar Singh, Kor Singh and Narayan Singh entered into the room and Mehar Singh snatched the axe from the hand of Pulam Singh. Mehar Singh caused injuries on the head of his brother Bhagirathu with axe and Narayan Singh caused injury to his brother with Daranti. Thereafter Subda Devi, Kunna Devi, Chandra Devi and Kosa Devi, Bangolia @ Mor Singh, Harish Chandra, Gabbar Singh, Vimla Devi, Darshani, Jogi @ Jogeshwar, Bachan Singh, Banni Devi, Ludra Devi, Pushkar, Hima Devi, Nathi Singh, Mukand Singh, Shurveer Singh, Baishakh Singh and Gwanu came and surrounded in the courtyard. Then his maternal uncle (MAMA) having torch in his hand came there and said that the accused persons have committed murder of Bhagirathu and he will give evidence against them. Then Mehar Singh, Pulam Singh and Kor Singh came outside the room and Harish Chandra and Gabbar Singh, who were in the courtyard, entered into the room of Bhagirathu. These accused persons thrown the money box in the courtyard and the accused Pushkar Singh damaged the said box. Two HMT wrist watches, Rs.2,000/- cash, one nose-ring (Bulak) of one Tola gold, a gold nose pin (Fuli), a necklace of 80 Tola, one pair of Dhagule of 60 Tola were looted from the box. He further deposed that in the robbery of the articles, aforesaid 26 accused persons were involved. Accused persons has also broken the radio by pelting stone. Some of them then 15 climbed on the roof and thrown Pathalia. Rs.2700/- cash, one nose ring of 4 tola gold and four gulsari of about 80 tola were also looted from his room. Thereafter the accused persons went back to their houses. Due to threat of the accused he and his family went to Raukhalwale and the injured Bhagirathu was also brought there. In the morning they went to Cham, where treatment of the injured persons was done in the hospital. On the advice of medical officer he took his brother Bhagirathu to Tehri Hospital. His brother was unconscious at that time. Thereafter he scribed the report by Kauli and gave it to the Patwari on 30.6.1987, who asked him to go in the Chauki to lodge the report. On 1.7.1987, he went to Chauki and lodge the report there at 06:00 PM. That report is Ext.Ka-1. On 2.7.1987 he came Tehri then he came to know that his brother Bhagirathu has died at Tehri Hospital on 1.7.1987. He further stated that the dispute which took place due to fetching of water was the public water tap. 20. PW2 Ramdayal and PW3 Smt. Shira have corroborated the statement of PW1 Sundaru. 21. PW5 is Sannu who has stated that on the date of incident at 11:30 PM he was in his house. He heard the sound of Narayan Singh, Mehar Singh, Kor Singh and Pulam Singh which was coming from the courtyard of Sundru (PW1). Then he went there. He was having torch in his hand.