Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 402 of 2001 Old Criminal Appeal No. 2113 of 1997 Dated of Decision: 11 .06.2010 Narain Singh alias Nary …Appellant Versus The State of U.P. …Respondent Present: Mr. Rajendra Kotiyal, learned counsel for the appellant. Mr. Nandan Arya, learned A.G.A. for the State. Hon’ble Nirmal Yadav, J. Accused- Narain Singh alongwith Smt. Subda, Smt. Chandra Devi, Smt. Puna Devi and Smt. Kausa Devi stood trial for the offence punishable under Section 396 of the Indian Penal Code, 1860 (for short I.P.C.) in Sessions Trial No. 30 of 1990 vide judgement and order dated 25.10.1997 passed by the Sessions Judge, Tehri Garhwal. The trial court after taking into consideration the facts and evidence available on record acquitted accused Smt. Subda, Smt. Chandra Devi, Smt. Puna Devi and Smt. Kausa Devi and convicted accused Narain Singh for the offence punishable under Section 396 of the I.P.C. and sentenced him to undergo rigorous imprisonment for ten years. The facts in brief are that complainant Sundru (PW- 1) submitted written report Ex. Ka-1 stating therein that on 28th June 1987 at about 10-11 a.m. his son Ram Dayal was going to fetch water from the public water tap in two brass pots (Banta). Meanwhile accused Mor Singh alias Bangolia came there in an annoyed mood and threw away the pots and slapped Ram Dayal stating that “Sale Domre (Harijan) pani bharne wale Bara bana 2 hua hai.” On hearing the noise his brother Kirti also reached the spot. The matter with regard to untouchability and drawing water from the tap was resolved and all the persons went back to their house. Thereafter on the same day Ram Dayal went to draw water from the alleged public tap at about 11:30 p.m., he was carrying a torch also. Even wife of complainant, Bindra Devi and Shira Devi also went to fetch water. When they were filling their pots with water accused Guthiaru alias Kaur Singh and Surat Singh reached there. Surat Singh stated that these scheduled castes be not allowed to draw water (Domro Ko Pani Mat Bharne Do). On saying this accused Surat Singh threw away the half filled pots in the fields. Accused Surat Singh and Guthiaru alias Kaur Singh carrying lathis in their hands followed his son and sisters in laws and entered the courtyard of their house. Surat Singh caused injuries on the head, breast and back of Jumla Devi wife of the complainant who was standing in the courtyard. Meanwhile accused Mehar Sikngh alias Bhuria and Naru alias Narain Singh (present appellant) having lathi in their hands also reached there and caused injuries to Bhagirathu, the brother of the complainant. Meanwhile Pulam Singh having axe in his hands also reached the place of occurrence. Thereupon Guthiaru alias Kaur Singh exhorted Pulam Singh and Narain Singh that ‘these scheduled castes be killed’ (Domro ko maar do). Out of fear Bhagirathu entered inside the room and bolted the door from inside. Accused Pulam Singh broke open the door and entered the room along with Mehar Singh alias Bhuria, Naru alias Narain Singh and Guthiaru alias Kaur Singh, a lamp was lighting in the room. Accused Mehar Singh alias Bhuria, snatched axe from Pulam Singh and caused injuries on the head of Bhagirathu with an intention to kill him. Meanwhile appellant Naru alias Narain Singh snatched Darati from the hand of Pulam Singh and 3 caused injuries to Bhagirathu. Meanwhile accused Smt. Subda, Smt. Chandra Devi, Smt. Kausa Devi, Gabbar Singh, Harish Chandra, Baishakh Singh, Gwanu, Mukand Singh, Bachhan Singh, Jogi alias Jogeshwar, Nathi Singh Shurbeer Singh, Smt. Soni Devi, Smt. Heema Devi Smt. Ludra Devi Smt. Darshani, Smt. Banni Devi, Smt. Bimla Devi and Pushkar Singh carring lathis, stones, Daranti and axe in their hands reached the courtyard and encircled the entire family in order to kill them. Meanwhile Mehar Singh, Naru alias Narain Singh, Guthiaru and Pulam Singh came out of the room then accused Gabbar Singh, Harish Chandra along with some other persons entered the room where Bhagirathu was lying in a serious injured condition. Gabbar Singh and Harish Chandra threw boxes having jewelleary and money in the courtyard. Accused Pushkar Singh broke open the boxes and other articles with the stones and looted Rs. 2000/- in cash, two wristwatches, one silver necklace (Kanthi) weighing 80 tola, one pair of silver Dhagule weighing 60 tola, a gold nose ring weighing one tola and a gold nose pin. The other co-accused damaged the tape-recorder- cum-radio by pelting stones, which was lying in the verandah. Thereafter the accused persons climbed roof of the house and started removing pathalia and fromthere some of them entered the other room of the house of the complainant and broke open a wooden box out of which they looted Rs. 2,700/-, a gold nose ring weighing 4 tola, 4 silver Gulsari weighing 20 tola. Complainant and children raised an alarm but no one come to their rescue. However, the accused persons threatened them with dire consequences. On account of the threat and out of fear the complainant and his family members remained hidden in their fields outside the village. Thereafter the complainant went to the house and found his brother in a serious condition and removed him to primary heath center Chham. The doctor 4 referred him and advised to remove his brother Bhagirathu to Government Hospital Tehri where all the family members as well as Bhagirathu were medically examined. Thereafter complainant Sundru (PW-1) got the report scribed and submitted the same (Ex. Ka-1) before the Patwari Halka, on the basis of which Chick F.I.R. Ex. Ka-3 was recorded on 1st July 1987 at 6:00 p.m. The entry in this regard was made in G.D. (Ex. Ka-4). Investigation was initially handed over to Patwari Vidya Dutt Chamoli (PW-6), which was later on transferred to Sub Inspector Inder Jeet Singh (PW-7). Injured Bhagirathu was medico legally examined by Dr. M.S. Bhandari (PW-4), who prepared his medico legal report Ex. Ka-2. Other injured persons were also examined by the same medical officer vide medico legal reports Ex. Ka-3 to Ka-7. Bhagirathu succumbed to his injuries on 1st July 1987. This injury report (Ex. Ka-10) was in the other sessions trial along with documents Ex. Ka-11 and Ka-12. The dead body was sent for postmortem, which was conducted on 2nd July 1987 at 1:20 p.m. by Dr. J.M. Chamoli (PW-5). During the course of investigation, Patwari recorded the statements of the witnesses and prepared site plan Ex. Ka- 12 of the place of occurrence. He also lifted bloodstained earth and simple earth from the place of occurrence alongwith bloodstained towel vide recovery memo Ex. Ka-13. He also took into possession the tape-recorder-cum-radio and other articles from the place of occurrence. On completion of the investigation two charge sheets were submitted against the accused persons, one against 5 eighteen accused persons and another against two persons. Thereafter proceedings under Section 82 – 83 Cr. P.C. were also initiated against the accused persons who had absconded. Thus, three charge sheets in all against the accused persons were submitted. Accordingly accused namely, Mehar Singh, Guthiaru, Mor Singh, Surat Singh, Gabbar Singh, Hari Chand, Pushkar Singh, Baisakh Singh, Gwanu, Mukand Singh, Bachan Singh, Jogi, Nathi Singh, Shurbeer Singh, Smt. Sauni, Smt. Heema Devi, Smt. Ludra Devi, Smt. Darshani, Smt. Bani Devi Smt. Bimla Devi were charged under Section 396 of the I.P.C. vide order dated 18th May 1989. Charge under Section 3 and 7 of the U.P. Protection of Civil Rights Act, 1955 was framed against accused Mor Singh alias Bangoliya, Guthiaru alias Kor Singh and Surat Singh. They have been separately tried vide Sessions Trial no. 44 of 1988 and Sessions Trial No. 8 of 1989. However, accused- Narain Singh (present appellant) alongwith Smt. Subda, Smt. Chandra Devi, Smt. Puna Devi and Smt. Kausa Devi were charge sheeted vide order dated 13.09.1993 under Section 396 of the I.P.C. to which they pleaded not guilty and claimed trial. They have been tried in Sessions Trial No. 30 of 1990. The prosecution in order to prove its case produced as many as six witnesses. Sundra (PW-1) is the complainant. Ram Dayal (PW-2), Smt. Seera Devi (PW-3) are the injured witnesses, while Dr. Manendra Singh Bhandari (PW-4) medico legally examined injured Bhagirathu (deceased) and other injured witnesses. Dr. J. P. Chamoli (PW-5) conducted the autopsy on the dead body of Bhagirathu. Viddya Dutt Chamoli (PW-6) is the Investigating Officer. 6 Dr. Manendra Singh Chamoli (PW-4) on examination found as many as 14 injuries on the person of Bhagirathu (deceased). Injuries no. 1 to 5 were caused by sharp and hard projecting surface and were declared to be grievous. Injuries no. 6 to 11 stated to be caused by hard blunt object and rest of the injuries were consequential to the other injuries. Smt. Jumla Devi was medico legally examined on the same day and the doctor found as many as four injuries on her person. All injuries were found to be simple in nature and caused by hard and blunt object. Injured Kirti was also examined and the doctor found three injuries on her person including one lacerated wound at the vault of skull. Ram Dayal (PW-2) was having one lacerated wound caused by hard and blunt weapon and simple in nature. Km. Parineeta was also having one lacerated wound while Shira Devi (PW-3) was found abrasion at the vault of her skull. All the medical reports of the injured persons were filed in original on the record of Sessions Trial No. 44 of 1988 Mehar Singh Vs. State. Dr. J.P. Chamoli (PW-5) in the postmortem report (Ex. Ka-8) of Bhagirathu (deceased) found as many as 12 injuries. On internal examination the doctor found fracture of middle cranial fossa, blood was found in both the chambers of the heart. Liquid digested food was present in small intestine and faecal matter was present in large intestine. As per opinion of the doctor, death was caused due to head injuries. From the statements of complainant Sundru (PW-1) and injured witnesses Ram Dayal (PW-2) and Shira Devi (PW- 3), factum of causing injuries, which resulted in the death of Bhagirathu and injuries which have also been caused to five 7 other persons namely, Jumla Devi, Km. Kirti, Ram Dayal Km. Parineeta and Smt. Shira Devi in the incident and the fact of looting the articles from the house of complainant and Bhagirathu (deceased) have been proved by Sundru (pw-1) as well as Ram Dayal (PW-2) and Smt. Shira Devi (PW-3). Thus, it is not disputed that during the course of dacoity Bhagirathu (deceased) received injuries and ultimately died on account of the injuries received in the incident. Ram Dayal (PW-2) has given a vivid account of the entire occurrence. According to him, he had gone to fetch water from the public tap and was slapped by accused Mohar Singh during the daytime. But the matter was resolved, however, during the night when again Ram Dayal along with Smt. Shira and Smt. Bindra went to fetch water, they were assaulted by accused Surat Singh and Guthiaru alias Kaur Singh. Thereafter Surat Singh, Mor Singh and Pulam Singh along with other accused followed them in the courtyard of the house of the complainant where Smt. Jumla Devi was also assaulted by Surat Singh and Guthiaru alias Kaur Singh. Narain Singh and Mehar Singh armed with lathi also reached the courtyard and caused injuries to Bhagirathu (deceased). Bhagirathu (deceased) went inside the room and bolted the door of the room from inside. But Pulam Singh broke open the door with the help of an axe and thereafter appellant Narain Singh alongwith Guthiaru alias Kaur Singh and Mehar Singh entered into the room and caused injuries to Bhagirathu (deceased), who later on succumbed to his injuries and other accused namely, Smt. Chandra Devi, Subda Devi, Puna Devi and Kausa Devi encircled the courtyard. Accused persons thereafter looted cash as well as articles from the house of the complainant. The witnesses categorically stated that almost 26 accused persons were involved in the entire incident. Thus the fact of dacoity at the house of the complainant as well as 8 Bhagirathu (deceased) is proved from the statements of Sundru (PW-1) as well as injured witnesses Ram Dayal (PW-2) and Shira Devi (PW-3). Learned counsel for the appellant argued that since the case of the present appellant was separately tried along with four other accused namely, Smt. Subda, Smt. Chandra Devi, Smt. Puna Devi and Smt. Kausa Devi, other co-accused have been acquitted of the charged levelled against them under Section 396 of the I.P.C. The present appellant Narain Singh alone could not be convicted of the charge under Section 396 of the I.P.C. It is argued that as per the prosecution case, offence was committed by appellant along with four other persons and those four co-accused have been acquitted by the court below. Appellant Narain Singh being the only person i.e. less than five in number could not be convicted as essential ingredients for the commission of crime i.e. participation of five persons is must and less than five persons cannot be convicted for the offence of dacoity. In his support, learned counsel for the appellant referred the judgment of Hon’ble Apex Court in the case of Raj Kumar alias Raju Vs. State of Uttaranchal reported in [2008(3) SCC (Cri) 888]. The argument of learned counsel for the appellant cannot be accepted, being highly misconceived. The facts of the authority cited by learned counsel for the appellant is distinguishable from the facts of the present case. In the present case, actually 26 persons were involved together for committing the offence during the course of incident. They committed the murder of Bhagirathu and looted cash as well as silver and gold articles from the house of the complainant and Bhagirathu (deceased). It is a different 9 matter that some of the accused absented themselves and the proceedings under Section 82-83 Cr.P.C., declaring them proclaimed offenders, were initiated, therefore, their trial was separated from the other co-accused. Thus, the present appellant along with other accused have been tried vide Sessions Trial No. 30 of 1990, whereas other co-accused were tried together in two separate trials i.e. sessions trial no. 44 of 1988 and 8 of 1989 and the trial court convicted accused Mehar Singh alias bhuria, Surat Singh, Gabbar Singh, Pushkar Singh, Harish Chandra, Mor Singh alias Bangolia and Guthiaru alias Kaur Singh under Section 396 of the I.P.C. Mor Singh alias Bangolia and Guthiaru alias Kaur Singh were also convicted under Section 3 and 7 of the U.P. Protection of Civil Rights Act. However, other co-accused namely, Baisakh Singh, Gwanu, Mukund Singh, Bachan Singh, Jogi, Nathi Singh, Shurbeer Singh, Smt. Darshani Devi, Smt. Bani Devi, Smt. Bimla Devi were acquitted of the charges levelled against them. Rest of the co-accused namely, Narain Singh (present appellant), Smt. Subda, Smt. Chandra Devi, Smt. Puna Devi and Smt. Kausa Devi have been tried separately in Sessions Trial No. 30 of 1990. Thus the argument of learned defence counsel that the appellant cannot be convicted as the accused were less than five persons, therefore, the essential ingredients for constituting the offence of dacoity was not made out, cannot be accepted as the accused who more than five in number had participated in the occurrence. They had entered the house of complainant and Bhagirathu (deceased) and looted the articles from their house and caused the death of Bhagirathu during the course of transaction. Mere fact that trials have been separately conducted, it would not absolve appellant Narain Singh from 10 his culpability for the commission of an offence under Section 396 of the I.P.C. It is worth mentioning here that even the appeal against the judgment and order dated 29th November 1991 passed by the Sessions Judge, Tehri Garhwal in Sessions Trial No. 44 of 1988 (State Vs. Mehar Singh and others) and Sessions Trial No. 8 of 1989 (State Vs. Harish Chandra and another) has been affirmed by this Court in Criminal Appeal No. 785 of 2001 and conviction and sentence awarded by the trial court in the above mentioned sessions trials has been affirmed. In view of the above discussions, appeal filed by appellant Narain Singh has no merit and is accordingly dismissed. Judgment and order dated 25.10.1997 passed by the Sessions Judge, Tehri Garhwal is hereby affirmed. The accused appellant is on bail, his bail bonds are cancelled and sureties are discharged and he shall be taken into custody forthwith to serve out the sentence awarded by the trial court. Office is directed to send back lower court record for compliance of the order. (Nirmal Yadav, J.) VKG 11.06.2010