IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Court’s Order whether the case is or not approved for reporting (Chapter VIII, Rule 32(2) (b) Description of Case Criminal Appeal No. 1049 of 2001 (Old No. 1412 of 1982) Date of decision:-16-6-2006 A.F.R. (Approved for Reporting) Not approved for reporting Date:-16-6-2006 Initials of Judge Note: - Bench Reader will attach this at the top of the first page of the judgment when it is put up before the Judge for signature. - 1 - HIGH COURT OF UTTARANCHAL AT NAINITAL CRIMINAL APPELA NO.1049 OF 2001 (Old No. 1412 Of 1982) 1. Pawan Kumar S/o Suraj Bhan 2. Kishan Lal S/o Jiwan Ram 3. Subhash Sharma S/o Chandu Lal 4. Chandu Lal S/o Asha Ram All R/o 25 Khandri Mohalla P.S. Kotwali, Dehradun ……..Appellant Versus State of Uttaranchal ………Respondent Date: - 16th June, 2006 Mr. Ramji Srivastava learned Amicus Curiae for the appellants. Sri A. Rab learned Addl. GA assisted by Sri M.A. Khan learned A.G.A. Hon’ble J.C.S. Rawat, J. 1) This criminal appeal has been filed against the judgment and order dated 29.04.1982 passed by Sri V. K. Agarwal, the then Addl. Sessions Judge, Dehradun in S.T. No.21/1980, whereby the appellants –Subash and Chandu Lal were convicted under section 452 IPC and 323 IPC read with section 34 IPC. The appellants- Kishan Lal and Pawan were also convicted under section 323 IPC read with section 34 IPC. The sentences were suspended and all the four appellants were given the benefit of section 4 of U.P. Ist Offenders Probation Act. They were released on their furnishing a personal bond of Rs. 2000/- and two sureties in the like amount by the each of the appellants for maintaining peace and good behaviour for a period of two years. In default, they were directed to appear before the court to receive the sentence passed against them. 2) The prosecution case in a nutshell is that an FIR was lodged by Smt. Dropadi Devi on 17.08.1979 at 12:55AM alleging therein that on 16.08.1979 at about - 2 - 11PM her husband Ram Kripal and one tenant Babu Ram were sitting in her room. The appellant-Subhash, who was also a tenant in the same premises where injured resides, came into her room alongwith Chandu Lal, Kishan and pawan. At that time the appellants were armed with Lathis in their hands. Chandu Lal entered into the room and committed marpeet with her and her husband by means of Lathis. The appellants- Kishan and Pawan remained outside the room in the verandah. On hearing hue and cry, witnesses Ishwar Das, Ashok and others came there and saved the injured. During the course of the said marpeet, Ram Kirpal and Smt. Dropadi Devi received the injuries. Thereafter, on a scooter both the injured went to the house of Nitya Nand Swami, who was their landlord. Nitya Nand Swami asked about the occurrence and then called the police on phone and sent them to hospital in his car and got them medically examined. Ram Kirpal was admitted in the hospital. Dr. Kuldeep Dutta PW7 had examined the injured Ram Kirpal on 17.8.1979 at 12:30AM. He found the following injuries on the person of injured-Ram Kirpal:- (i) Lacerated wound 3cm x 0.25 cm x bone deep outer middle of forehead 6cm above nose bridge. Bleeding present. (ii) Lacerated wound 1cm x 0.25 cm x muscle deep joint above outer angle of right eye. Bleeding present. (iii) Contusion 9cm x 2cm obliquely placed outside 1/3 of left thigh. The doctor has pointed that the injury no.2 & 3 were simple in nature. It was further opined that the injuries were caused by blunt object. The doctor has proved the medical report Ex.ka.7. - 3 - 3) Dr. Kuldeep Dutta PW7 had also examined the injured Dropadi Devi on 17.8.1979 at 12:30AM. He found the following injuries on the person of injured- Smt. Dropadi Devi:- (i) Abrasion 1cm x 0.25cm on the left hand just above wrist joint. (ii) Contusion with swelling 4cm x 3cm on the back of right forearm upper 1/3 portion. (iii) Complaint of pain in lower back. (iv) Complaint f pain in both legs. It was opined by the doctor that all the injuries were fresh and simple in nature and it was caused by the blunt object. 4) The FIR was initially registered for the offence under section 452, 323 IPC but later on 18.08.1979 it was converted for the offence under section 308 IPC. Thereafter, the police investigated the matter and submitted the chargesheets (Ex.ka4 & 5.) against the appellant,s namely Pawan, Subhash, Chandu Lal and Kishan Lal. 5) Charges were framed under section 452 IPC and section 308 read with section 34 IPC against the appellants. The appellants denied the charges and claimed the trial. 6) The prosecution in support of its case examined Nitya Nand Swami (PW1), who is an advocate of Dehradun. He is not a witness of the incident, but he was the manager of the truest property in which the injured and appellants were residing. Dropadi Devi - 4 - (PW2) was the wife of Ram Kirpal-injured and she was also injured in the incident. Ishwar Dass (PW3) had stated that when he was sleeping on 16.08.1979 he heard the noise of “Bachao Bachao”. He came out from his room and saw that accused persons were dragging Ram Kirpal from his room towards the courtyard and in the courtyard appellants Pawan and Kishan were standing having Lathis in their hands and then all the four accused persons gave a beating to ram Kirpal. Ram Kirpal (PW4) was the injured witness in this case. Ashok Kumar (PW5) has also supported the version of Ishwar Dass. S.I.-Manbar Singh (PW6) was the Investigating Officer, who submitted the chargesheets against the appellants. Dr. Kuldeep Dutta (PW7) has been examined to proved the injuries sustained by Ram Kirpal and Smt. Dropadi Devi. He had stated on oath that the injuries sustained by the injured person might come at about 11PM on 16.08.1979. The accused Subhash, Chandu and Kishan Lal had suggested to the doctor that Ram Kirpal might have received all the injuries due to fall on the stone. The appellants had also adduced Dr. Yogesh Gupta (DW1) in support of their defence. Narendra Kumar DW2 had tried to prove that Swami PW1 had said that Pawan is not the culprit in this case. 7) In the statement recorded u/s 313 Cr.P.C. the appellants denied the prosecution case and stated that they have been falsely implicated in this case. No defence was adduced in support of the defence version. 8) The learned trial court after appraisal of the evidence on record found the appellants guilty and - 5 - convicted and sentence the appellant as mentioned above. 9) I have heard Sri Ramji Srivastava learned Amicus Curiae for the appellant No.3-Subhash Sharma, Sri Sandeep Tandon learned counsel for the appellant Nos.1 & 2, and learned A.G.A. and perused the evidence on record. AS per the verification report of the CJM concerned, the appellant No.4-Chandu Lal has died. Hence, the appeal against the appellant-Chandu Lal stands abated. 10) The prosecution had taken a case that the injured Dropadi Devi (PW2) and Ram Kirpal (PW4) were assaulted by the appellants. Whereas the appellants had taken a case that Nitya Nand Swami PW1 had some suspension that Subhash had illicit relations with his wife and as such Ram Kirpal was made an instrument to falsely implicate the appellant-Subhash. The electric wires were disconnected by the injured Ram Kirpal and Ashok Kumar from the room of Subhash and in this regard a report was made by Subhash to the Electricity Board. While he was going to lodge the report at about 10 to 10:30PM Ram Kirpal and Ashok Kumar came there. Ram Kirpal and Ashok Kumar were armed with lathis in their hand. They hurled the abuses upon the appellant-Subhash and committed marpeet. The witnesses Krishan, Pawan and Dharampal and others saved him from the assaults. His report was not lodged at the police station because the police was under the influence of Nitya Nand Swami (PW1). When he went to the police station fro lodging the report he was detained by the police and he was released in the next morning and - 6 - Thereafter his medical examination was conducted. So far as the appellant-Pawan Kumar is concerned, he had taken a different stand during the course of defence that he was coming from the house of his father-in-law and at that time he was informed that something was happening outside his house. When he came out from his house hw saw that Dropadi Devi (PW2), Ram Kirpal (PW4) and Ashok Kumar (PW5) armed with lathies in their hands and they were assaulting the appellant- Subhash. He was informed in the morning at about 5AM that an FIR had been lodged against him also. Immediately thereafter he went to the house of Nitya Nand Swami PW1, who asked him to become a witness in his favour. When he did not concede the request of PW1-Nitya Nand Swami, he had been falsely implicated in this case. 11) Now, it has to be seen whether the prosecution had proved its case beyond reasonable doubt or not. The prosecution in support of its case adduced the evidence of both the injujred i.e. Dropadi Devi PW.2 and Ram Kirpal PW4. They had stated in their evidence that on 16.08.1979 at about 11PM the appellant- Subhash who was also a tenant and resident of in the same premises came into their room and hurled abuses upon them. Chandu Lal also entered into the room. The other appellants Kishan Lal and Pawan remained outside the room and they were also hurling abuses upon the injured Ram Kirpal PW4. it is also in the evidence of the injured witness Ram Kirpal PW4 that both the appellants Subhash and Chandu Lal committed marpeet with the injured inside the room. However, Dropadi Devi (PW2) had stated in her statement that she was also beaten inside the house, though it has not - 7 - been stated by Ram Kirpal PW2 in his deposition that his wife Dropadi Devi was also assaulted inside the room. The appellant Kishan Lal and Pawan instigated to drag the injured Ram Kirpal and his wife to the varanda from the room. Thereupon both the appellants dragged them outside the room and the injured were also assaulted in the varanda. On the hue and cry, the witnesses i.e. Ishwar Das, Ashok and others came there and saved the injured. Thereafter, the wife of the injured Ram Kirpal PW4 managed a three-wheeler scooter and went to the house of Nitya Nand Swami PW1. Both the injured narrated the entire story to Nitya Nand Swami PW1. Nitya Nand Swami PW1 telephoned to the police station from where a police vehicle reached at the spot and both the injured were taken to the hospital. Thereafter, they were medically examined in the hospital. The injured Ram Kirpal PW4 was admitted in the hospital and thereafter an FIR was lodged by Dropadi Devi PW2 at the police station on 17.08.1979 at 0.55 hours. The prosecution in support of its case examined two eye witnesses of the occurrence namely Ishwar Dass PW3 and Ashok Kumar PW5. Both the witnesses are the resident of the same vicinity and they had supported the production version and they had stated that when they heard the nose of injured at about 11PM they came outside their rooms and they found that the appellants-Subhash and Chandu Lal were dragging the injured Ram Kirpal PW4 towards the varanda and they were beating him by Lathies. Ishwar Dass PW3 and Ashok Kumar PW5 had also alleged that they saw the occurrence immediately after dragging of Ram Kirpal PW4 and saw the lathies in the hands of appellants Pawan and Kishan Lal. Ashok Kumar PW5 had further stated that he also saw that - 8 - the appellants assaulted Dropadi Devi PW2. Thereafter, the appellants fled away from the place of occurrence. This is the entire evidence of the prosecution with regard to the occurrence. 12) It was contended on behalf of the appellants that there are discrepancies in the evidence of the prosecution and the evidence cannot be relied upon. It was pointed out that Dropadi Devi PW2 had stated that she was also beaten inside the room, whereas Ram Kirpal PW4 had nowhere stated that the appellants had also assaulted his wife Dropadi Devi PW2. It was pointed out that Dropadi Devi PW2 had stated in her evidence that her husband Ram Kirpal PW4 was not in a position to move his legs and he was lifted from the spot and he was taken in the three wheeler. Whereas Ram Kirpal PW4 had himself admitted that he went with the aid of his wife and he was not lifted, but he was in the injured condition. There are certain contradictions and variations in statements of Iswar Dass PW3 and Ashok Kumar PW5. It was pointed out that Ishwar Dass PW3 had stated that the appellants were dragging the injured Ram Kirpal PW4 and they were also assaulting him. Ishwar Dass PW3 had not stated that Dropadi Devi PW2 was also assaulted. Whereas Ashok Kumar PW5 had stated that he saw the incident and saw the appellants Chandu Lal and Subhash dragging the injured Ram Kirpal PW4 from the room and he had also seen the appellants assaulting Dropadi Devi PW2. Now, it has to be seen whether these discrepancies can disturb the genesis of the prosecution story or these are the minor variations in the evidence. Learned Addl. G.A. contended that these contradictions do not affect the prosecution case and - 9 - court should not take into account such minor discrepancies, which are bound to come on the truthful testimonies. It is pertinent to mention here that Ashok Kumar PW5 and Ishwar Dass PW3 reached at the spot when Ram Kirpal PW4 cried to save him from the assaults of the appellants. It is the consistent evidence of Dropadi Devi PW2 as well as Ram Kirpal PW4 that Ashok Kumar PW5 and Ishwar Dass PW3 reached at the spot when the incident was likely to be concluded. If PW3 & PW5 have not seen the incident from the very beginning and they reached at the spot when the injured cried, it cannot be held that there is a contradiction in between the evidence of the prosecution. Both the witnesses have reached at the spot when major part of the incident had taken place. It is pertinent to mention here that when the assaults were being committed by the appellants to the injured it would be the natural conduct of the injured witnesses to save themselves and they would not see what is going on with the other and how the injuries were being caused. At the time of incident an injured person always tries to save himself from the assaults. It might go unnoticed on the part of Ram Kirpal PW4 that the appellants caused assaults on Dropadi Devi PW2 inside the room. The observation differs from person to person and what one may notice, another may not. An object or moment might emboss its imagine on one person’s mind whereas it might go unnoticed on the part of another. By and large the people cannot accurately recall a conversation and repeat the story what they saw or heard. They can only recall the main purport of the story. It is unrealistic to expect a witness to be a human tape-recorder. The witness cannot be expected to pose a photographic memory and to recall - 10 - the details of an incident. Ordinarily if so happens that witness is overtaken by the events, the witness could not have anticipated the occurrence, which has an element of surprise. Ordinarily a witness cannot be expected to recall accurately the sequences of events, which took place in a rapid succession or in a short time of span. A witness is likely to get confused or mixed up when interrogated, later on. As the person who has witnessed an incident, like the present one reacts in his own way. Thus every individual reacts on his own way. There is no set of rules of natural reaction. It is pertinent to mention here that when a witness appears before the court after a long gap, sometimes he may not stand the test of cross examination, which may be sometimes, because he is a bucolic person and is not able to understand the question put to him by the skilful cross-examiner and at times under the stress of cross-examination, certain answers are snatched from him. When a rustic or illiterate witness faces an astute lawyer, there is bound to be imbalance and, therefore, minor discrepancies have to be ignored. Therefore, these discrepancies are minor in nature and it does not disturb the genesis the prosecution story. 13) It was further contended on behalf of the appellants that the prosecution had been initiated at the behest of Nitya Nand Swami PW1. It was further pointed out that it is also in the evidence that the injured, appellants and the witnesses were the resident of the same locality and it was also in the evidence they are the tenants in the Trust Property which was managed by Nitya Nand Swami PW1. It is also in the evidence that the injured Ram Kirpal PW4 is a - 11 - chowkidar-cum-gardener in the said campus, though Ram Kirpal PW4 had denied this fact. However, other witnesses had admitted this fact. Learned counsel for the appellants tried to show that there was enmity in between the parties. It was further pointed out by the learned counsel for the appellants that Ashok Kumar PW5 had stated that Nitya Nand Swami PW1 had lost his case of eviction against the appellant-Kishan Lal and the appeal has been preferred by PW1. It was pointed out that Nitya Nand Swami PW1 wanted to evict the appellants by hook or crook and as such the concocted story was made. It was pointed out that Ashok Kumar PW5 had moved an application as a prospective tenant of the house occupied by Kishan Lal. As such, he is also an interested witness in this case. Ashok Kumar PW5 had also preferred an appeal against the refusal of his allotment. It was further pointed out on behalf of the appellants that the injured Ram Kirpal PW4 and Dropadi Devi PW2 did not approach to the police station directly, but they approached first to Nitya Nand Swami PW1, who is an advocate and at whose behest the FIR was lodged. It was pointed out that there was an enmity in between Nitya Nand Swami PW1 and the appellant Kishan Lal. The learned counsel for the appellants also tried to connect the enmity with the appellant-Subhash also. Learned Addl. G.A. refuted the contention and it was contended that the injured persons were the employees of Nitya Nand Swami PW1 and they being the lower strata of society and they did not know how to manage the things after such an incident so they contacted Nitya Nand Swami PW1, who only asked the police to take an action in accordance with law. It was further pointed out by the learned Addl. GA that the police did not came at the spot - 12 - inspite of three or four telephone calls made by PW1. It was further contended that the argument advanced by the counsel of the appellants is hypothetical and the prosecution is not supposed to answer the hypothetical question posed by the defence. It was further pointed out that this argument does not give the benefit of doubt to the appellants. The contention raised by the learned counsel for the appellants that as to why the injured did not went to the police station directly does not carry any substance. The injured persons had acted according to their own wisdom. It is pertinent to mention here that the injured were the employees of Nitya Nand Swami PW1 and they would have thought to inform him about the incident so that the his assistance might be taken. It is not revealed from the evidence that he had shown any interest in this matter. If any incident happens with the employee of any department or any company or any trust the person who is affected by the incident naturally approach to his superior to seek his advice. In view of the above discussion, I so not find any force in the contention advanced by the defence. I am completely in agreement with the contention of the learned AGA. 14) It was further contended on behalf of the appellants that the defence had also adduced the evidence of Dr. Yogesh Gupta DW1 to prove that Subhash had also sustained the injuries during the course of incident. It was further contended that the prosecution had not explained the injuries of the appellant Subhash. It was further contended that the prosecution was under the obligation to prove how the appellant sustained the injuries at the time of the incident. It was further contended that Subhash - 13 - appellant sustained the injuries at the time of incident. The prosecution had not given any explanation for the same. It was further contended that appellants are entitled to be acquitted on this score alone. Dr. Yogesh Gupta had medically examined the injuries of the appellant-Subhash on 17.08.1979 at 9.25AM. Dr. Yogesh Gupta had found the following injuries on the person of Subhash:- (i) Abrasion 2cm x 1cm right side face 4cm in front of right ear soft scab. (ii) Multiple contusions in an area 13cm x 5cm top of right shoulder and outer aspect of upper thumb right arm. (iii) Multiple contusions in an area 18cm x 9cm front outer aspect of left upper arm. (iv) Contusion 10cm x 2.5cm outer aspect of upper half of left forearm. (v) Abrasion 2cm x 1cm back of left wrist. Soft scab. (vi) Traumatic swelling 2cm x 2cm back of left hand. 15) It was further stated by the DW1 that the injuries sustained by Subhash could be caused due to friction at the time of incident. It is well settled position of law that it is not necessary to explain the injuries sustained by the accused in each and every case. Merely because the prosecution has failed to explain the injuries it cannot be said that the appellant did not receive the injuries. The same cannot be a ground for throwing out the prosecution case especially when same has been supported by eye-witnesses including injured one as well as their evidence is corroborated by the medical evidence. It has been held in Takhaji Hiraji Vs. Thakore Kubersing Chamansing 2001 SCC(Cri) p.1070 that: “17. The first question which arise for consideration is what is the effect of non- - 14 - explanation of injuries sustained by the accused person. In Rajendra Singh Vs. State of Bihar reported in 2000(4) SCC 298, 2000 SCC(Cri) 796; Ram Sunder Yadav Vs. State of Bihar reported in 1998(7) SCC 365 & 1998 SCC(Cri) 1630, and Vijayee Singh Vs. State of U.P. 1990(3) SCC 190, 1990 SCC(Cri) 378, all three –Judge Bench decisions, the view taken consistently is that it cannot be held as a matter of law or invariably a rule that whenever the explain the injury and on the failure of the prosecution to do so the prosecution case should be disbelieved. Before non-examination of the injuries on the persons of the accused persons by the prosecution witnesses may affect the prosecution case, the court has to be satisfied of the existence of two conditions: (i) that the injury on the person of the accused was of a serious nature; and (ii) that such injuries must have been caused at the time of the occurrence in question. Non-