COURT’S ORDER WHETHER THE CASE IS OR IS NOT APPROVED FOR REPORTING {Chapter VIII, Rule 32(2)(b)} Description of the Case. CRIMINAL APPEAL NO.156 OF 2007 (Old Case No.2201 of 1984) Shiv Singh and others .......... Appellants Versus The State of U.P. .......... Opposite Party Sri B.S. Adhikari, learned counsel for the appellants. Sri Harish Pujari, learned Addl. GA for the State. Approved for reporting. Not approved for reporting. Date: October 11, 2007 (Dharam Veer, J.) Reserved IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO. 156 of 2007 (Old Case No.2201 of 1984) 1. Shiv Singh S/o Sher Singh 2. Diwan Singh S/o Sher Singh 3. Madan Singh S/o Sher Singh 4. Chandan Singh S/o Govind Singh 5. Pan Singh S/o Chandan Singh 6. Pan Singh S/o Kundan Singh All residents of Village Nauala, Patwari Kshetra Sheetala Khet, P.S. & District Almora. ........... Appellants Versus The State of U.P. ... Opposite Party Dated: October 11, 2007 Sri B.S. Adhikari, learned counsel for the appellants. Sri Harish Pujari, learned Addl. GA for the State. Hon’ble Dharam Veer, J. This appeal, preferred under Section 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 03.08.1984 passed by Sessions Judge, Almora in Sessions Trial No.13 of 1983, State Vs. Shiv Singh & others, whereby the Sessions Judge, Almora has convicted the appellant Shiv Singh under Sections 147, 307, 323/34 of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and awarded sentence of 6 months R.I., u/S 147 I.P.C., 7 years R.I. u/S 307 I.P.C. and 6 months R.I. u/S 323/34 I.P.C. and has convicted appellant Chandan Singh u/S 307/149, 147, 323/34 I.P.C. and awarded sentence for 4 years R.I. under Section 307/149 I.P.C., 6 months R.I. u/s 147 I.P.C. and 6 months R.I. u/S 323/34 I.P.C. and has convicted appellants Pan Singh S/o Chandan Singh, Pan Singh S/o Kundan Singh, Diwan Singh and Madan Singh u/Ss 147 & 307/149 I.P.C. and awarded sentence for 6 months R.I. u/s 147 I.P.C. and 4 yearns R.I. u/S 307/149 I.P.C. It has also been directed that all the sentences of each of the accused shall run concurrently. Learned Sessions Judge has acquitted accused Smt. Gawali Devi alias Ganguli Devi for the offence punishable under Sections 147, 307/149 & 323/34 I.P.C. 2. Learned C.J.M., Almora has submitted a report dated 02.07.2007 that appellants Chandan Singh and Madan Singh died. Hence, the appeal against appellants Chandan Singh and Madan Singh stands abated. 3. In brief, the prosecution case is that on 21.04.1982 at about 7.30 PM Bir Singh had gone to his field to cut the grass. In the field human excreta was there then Bir Singh abused to the person who had done this foul act. On this, the appellant Shiv Singh armed with axe (Kulhari), Chandan Singh, Pan Singh son of Chandan Singh, Pan Singh son of Kundan Singh, Diwan Singh, Madan Singh and Smt. Gawali Devi alias Smt. Ganguli Devi armed with Lathis and Dandas with common intention reached in the field of Gaje Singh and they started to beat Bir Singh. When Smt. Basuli Devi, daughter of Gaje Singh and the sister of Bir Singh reached at the place of occurrence and tried to save Bir Singh then she was also beaten with Danda and stone. Seeing that the appellants were beating his daughter and son, Gaje Singh also tried to save them. Thereupon, appellant Shiv Singh told Gaje Singh that he would kill him today and appellant Shiv Singh caused injury to Gaje Singh with axe (Kulhari) and the rest of the accused-appellants caused injury to Gaje Singh with Lathis and Dandas. Due to which Gaje Singh received injuries on his head and fell down on the ground. Soban Singh, Khim Singh, Thakur Singh and Daulat Singh of the same village came to save them. Seeing the witnesses, the appellants ran away from the place of occurrence. After that Gaje Singh was taken to the District Hospital, Almora and in the hospital Gaje Singh and his daughter Basuli Devi were medically examined by the Medical Officer. Gaje Singh has further averred in the F.I.R. that appellant Shiv Singh and other co-accused caused injuries to him, his son and his daughter with common intention to kill him. With the same averments, Gaje Singh lodged the F.I.R. at Police Station Almora on 22.04.1982 at 7.3. PM, that F.I.R. is Ex. Ka-1. On the basis of this F.I.R., the Head Moharir Jagdish Prasad prepared a Chik Report i.e. Ex.Ka-4 and the entry was made in the G.D., the carbon copy of the G.D. is Ex.Ka-5. Injured Gaje Singh was medically examined by the Emergency Medical Officer, District Hospital, Almora on 22.04.1982 at 2.10 PM. The injury report was prepared by the Medical Officer i.e.Ex-2. Basuli Devi was also medically examined by the Emergency Medical Officer, District Hospital, Almora on 22.04.1982 at 2.25 PM, the injury report is Ex.Ka-3. Then the investigation was transferred to the Patwari concerned as the Patwari authorized to investigate the matter (in the rural areas of hill Districts of Uttarakhand the Patwaris are vested with the police powers). The Patwari, Sheetala Khet submitted a report to the Chief Judicial Magistrate, Almora on 28.04.1982, that report is Ex.Ka.6 During the course of the investigation the Investigating Officer (Patwari) took the blood stained clay from the place of occurrence and the Fard was prepared, that Fard is Ex.Ka-7. He also took into possession the blood stained stone from the place of occurrence and the Fard was prepared, that Fard is Ex.Ka-8 and he also took the plain clay from the place of occurrence and the Fard was prepared, that Fard is Ex.Ka-9. The Investigating Officer (Patwari) also took the blood stained clothes of injured Gaje Singh in his possession and Fard for the same was prepared i.e. Ex. Ka-10. He also prepared the site plan of the place of occurrence. The site plan is Ex.Ka-11. After that the investigating was transfer to the Kanoongo. The Kanoongo submitted a report to the Chief Judicial Magistrate, Almora for the chemical examination of the material recovered and the blood stained clothes, the report is Ex.Ka-12. The Chemical Examiner submitted reports after examination, that reports are Ex.Ka-14 and Ex.Ka-15. During the course of the investigation, the Investigating Officer recorded the statements of the witnesses and after completing the investigation, he submitted a charge sheet against the appellants and co-accused Smt. Gawali Devi alias Smt. Ganguli Devi on 22.06.1982, the charge sheet is Ex.Ka-13. 4. Learned Chief Judicial Magistrate, Almora committee the case on 02.03.1983 to the Court of Session under Section 209 Cr.P.C. after complying the provisions of Section 207 Cr.P.C. 5. Learned Sessions Judge, Almora framed charges against appellant Shiv Singh under Sections 147 & 307 I.P.C. on 11.08.1983 and the charges were read over and explained to the appellant who pleaded not guilty and claimed to be tried. Against appellants Chandan Singh, Pan Singh son of Chandan Singh, Pan Singh son of Kundan Singh, Diwan Singh, Madan Singh and Smt. Ganguli Devi the charges were framed under Sections 147 and 307 I.P.C. read with Section 149 I.P.C. and the charges were also read over and explained to the accused persons, who pleaded not guilty and claimed to be tried. Against appellants Shiv Singh, Chandan Singh and Smt. Ganguli Devi the charges were also framed under Section 323 I.P.C. read with Section 34 I.P.C. and the charges were also read over and explained to the accused persons, who pleaded not guilty and claimed to be tried. 6. To prove its case prosecution examined P.W.1 Pan Singh (scriber of the written F.I.R.), P.W.2 Gaje Singh (complainant and the injured), P.W.3 Km. Basanti Devi alias Basuli Devi (injured), P.W.4 Dr. Ashok Sharma, who has medically examined injured Gaje Singh and Basuli Devi, P.W.5 Bir Singh (injured and eye witness), P.W.6 Head Constable Jagdish Prasad and P.W.7 Pan Singh Rawat, Patwari (Investigating Officer). After that the statements of the appellants were recorded under Section 313 Cr.P.C., who denied the allegations made against them. 7. After appreciating the evidence on record and hearing learned counsel for both the parties, the learned Sessions Judge Almora has convicted appellant Shiv Singh under Sections 147, 307, 323/34 I.P.C. and awarded sentence of 6 months R.I., u/S 147 I.P.C., 7 years R.I. u/S 307 I.P.C. and 6 months R.I. u/S 323/34 I.P.C. and has convicted appellant Chandan Singh u/S 307/149, 147, 323/34 I.P.C. and awarded sentence for 4 years R.I. under Section 307/149 I.P.C., 6 months R.I. u/s 147 I.P.C. and 6 months R.I. u/S 323/34 I.P.C. and has convicted appellants Pan Singh S/o Chandan Singh, Pan Singh S/o Kundan Singh, Diwan Singh and Madan Singh u/Ss 147 & 307/149 I.P.C. and awarded sentence for 6 months R.I. u/S 147 I.P.C. and 4 years R.I. u/S 307/149 I.P.C. It has also been directed that all the sentences of each of the accused shall run concurrently. Learned Sessions Judge has acquitted accused Smt. Gawali Devi alias Smt. Ganguli Devi for the offence punishable under Sections 147, 307,149, & 323/34 I.P.C. 8. Against the said judgment and order, the appellants have preferred the present appeal. 9. I have heard Sri B.S. Adhikari, learned counsel for the appellants and Sri Harish Pujari, learned Additional Government Advocate for the State and perused the entire record of the trial court as well as the instant appeal. 10. To prove its case the prosecution has examined P.W.1 Pan Singh, who has states in his statement that Gaje Singh injured and all the seven accused were known to him before the date of incident. All these persons belong to his village and he has indentified all the appellants/accused in the court. On 22.04.1982 he had gone to the District Hospital to see the injured Gaje Singh. There he found Gaje Singh in an injured condition. On the dictation of Gaje Singh he had written a report on 22.04.1982 and after reading the report Gaje Singh had signed on the report, that report is Ex.Ka-1. Then Gaje Singh asked him to submit this report in the Police Station, as he was not to able to go to the Police Station due to his injuries. On the same day, in the evening he submitted the report in the Police Station, Almora. In the cross examination in para no.4 he has stated that on the date of the incident he was working in the Forest Department, Almora and he was living at Mal Road in the quarter of Forest Department, Almora. This witness was cross- examined by the defence counsel but nothing has come out from his statement which may create any doubt in his evidence. The evidence of this witness is reliable and believable. 11. PW.2 Gaje Singh is the complainant and an injured witness. He has stated that he identified the accused-appellants, who were present in the court on the date of his statement. On that day appellant Chandan Singh was not present in the court. He has further stated that all the accused-appellants belong to his village and they were known to him before the incident. Km. Basuli Devi is his daughter and Bir Singh is his son. He has further stated that the above said incident was taken place about one and half years before, the time was about 6 O’ clock in the evening. He had asked his son Bir Singh to take grass from his field and Bir Singh had gone to cut the grass. After some time he had heard the noise of weeping and crying of Bir Singh, then he asked his daughter Basuli Devi to go and see why Bir Singh was weeping and crying. Then Basuli Devi whet to the field and after some time he also heard the noise of weeping and crying of Basuli Devi. On hearing the noise, he himself went to the field where he saw that all the appellants and Gawali Devi were standing there and all the sever accused persons were armed with Lathis and they were beating Basuli Devi with Lathis, then he asked the appellants/accused why they were beating to his daughter, whatever they wanted to say tell him. The appellants had also torn the clothes of Basuli Devi then he (Gaje Singh) tried to save his daughter. Meanwhile, appellant Pan Singh S/o Kundan Singh caught hold him from his backside and appellant Diwan Singh caught his neck from the front with his both hands and appellant Shiv Singh caused injury on his (Gaje Singh) with axe (Kulhari) due to which he received the injuries on his forehead. Appellant Madan Singh told to be fallen down him (Gaje Sing) on the land and to be beaten him. Thereafter, Shiv Singh caused the injury with axe (Kulhari)on his head. After that Pan Singh S/o Kundan Singh and Diwan Singh made him (Gaje Singh) fall down on the land. As he fell down on the land all the accused persons beat him by Lathies and kicks due to which his backbone was fractured and blood was coming in the vomit and he became unconscious. The witnesses Thakur Singh, Khim Singh and Daulat Singh etc. had seen the incident from some distance. He came to sense in the night when he was at home. Next day morning, he sent Ratan Singh and Pratap Singh to lodge the FIR of the above said incident to the Patwari but they could not get the Patwari, hence the report was not lodged to the Patwari. Then he was taken to the Sheetala Khet, Hospital, in the Sheetala Khet Hospital, Doctor refused to treat him then a taxi was called on telephone and he was sent to the District Hospital, Almora where he was medically examined and treated by the Doctor. In the hospital, on his dictation Pan Singh had written a report and after reading the report he signed on that report, i.e. Ex.Ka. 1. Thereafter, Pan Singh submitted that report to Police Station, Almora and the blood stained clothes i.e., Shirt and Trousers (Paijama) were handed over to the Patwari, (Investigating Officer) and were sealed on the spot. The blood stained clothes were opened in the court and he has identified that Shirt and Trousers (Paijama) i.e. Ex.1 and Ex.2 In cross-examination in para 14 he has stated that ^^f'koflag eqyfte us ftl dqYgkM+h ls eq>s ekjk Fkk og eqyfte pUnuflag ds vkaxu esa iM+h Fkh vkSj mls mBkdj mlus eq>s ekjk FkkA^^ Shiv Singh caused the injury to him with axe (Kulhari) that was lying in the courtyard of appellant Chandan Singh. In para 27 of the cross-examination he has stated that ^^eq>s ugha ekywe fd ?kVuk LFky ls dkSu yksx mBkdj eq>s esjs ?kj ys x;s D;ksafd eSa csgks'k FkkA mlh jkr dks djhc ,d cts eq>s vius ?kj esa tc gks'j vk;k rc eq>s irk pyk fd ifRu deyk o esjh yMdha olwyh nsoh eq>s ?kVukLFky ls mBkdj esjs ?kj rd ys vkbZ Fkh vkSj fdlh vkneh us eq>s u mBk;k u ys x;k ew>s ekywe fd ?kVuk LFky ij ekStwn yksxksa esa ls eq>s ogkWa ls mBkdj eq>s ?kj ij D;ksa ugha ys vk,A fQj dgk os yksx eqyfte ls Mj x,A^^ He does not know that who took him from the place of the occurrence to his house because he was unconscious. On that night at about 1:00 AM when he came to sense then he knew that his wife Smt. Kamla Devi and his daughter Basuli Devi had taken him from the place of occurrence to his house. No other person had helped him. He has further stated that other people who were present on the place of occurrence had not taken him to his house. Due to fear of the accused-appellants. In para 30 of the cross-examination he has stated that ^^eq>s gks'k vkus ds djhc pkj ?kUVs ckn eq>s 'khryk[ksr ys x,A ,slk ugha gqvk fd gks’k vkus ds rqjUr ckn eq>s rqjUr 'khryk[ksr ys x, gksA bu pkj ?kUVksa esa eSa cjkcj vius ?kj ij gh jgk vkSj dgha ugha x;kA (Self-nks vkneh iVokjh th ds ikl fjiksVZ djus Hksts Fks ftUgksaus ykSVdj crk;k fd os ugha feysA) He was taken to Sheetala Khet after 4 hours of coming into sense. During these 4 hours he was remained in his house. He further stated that two persons were sent to the Patwari for lodging the report but they could not get the Patwari. This witness was cross examined at length by the defence counsel but nothing has come out from his statement which may create any doubt in his evidence. The evidence of this witness is reliable, believable and natural. 12. PW.3 Km. Basanti Devi alias Basuli Devi, who has stated that she identified the accused persons in the court on the date of her statements. On that date appellant Chandan Singh was not present in the court. She has further stated that all the seven accused persons belong to her village. The said incident was taken place at about 1 year and 7-8 months before. The time was about 6 O’ Clock in the evening. Her younger brother Bir Singh had gone to the field to cut the green barley. The field of the complainant is near the house of the appellant/accused Chandan Singh. When she reached to her filed then she saw that appellants/accused Chandan Singh, Shiv Singh and Ganguli Devi were beating her brother Bir Singh. Her brother Bir Singh was weeping. She asked to the appellants/accused not to beat her brother then Ganguli Devi (who has been acquitted by the trial court) caught her braid and appellant Shiv Singh torn her with cloth and appellant Chandan Singh beat her with Danda. She was crying. After hearing her cries the other appellant/accused Madan Singh, Pan Singh S/o Chandan Singh, Pan Singh S/o Kundan Singh and Diwan Singh also reached at the place of occurrence and all four accused persons told that you had beaten them (Bir Singh and Basuli Devi), then burry them after digging a ditch. When she cried loudly then her father Gaje Singh reached there. Her father asked the appellants/accused why they were beating his children. On that, Pan Singh S/o Kundan Singh and Diwan Singh caught hold her father and Shiv Singh caused the injury with axe (Kulhari) to her father and that axe (Kulhari) was taken by Shiv Singh from the courtyard of Chandan Singh. After receiving the injuries her father fell down on the ground then Madan Singh also caused the injury to her father with Lathi. After that all the seven accused persons beat her father. After hearing the noise, witnesses Thakur Singh, Khim Singh, Daulat Singh and Soban Singh and other people reached at the place of occurrence and asked the appellants/accused not to beat them (complainant Gaje Singh, Bir Singh and Basuli Devi). Thereafter the appellants/accused went towards their courtyard and her father became unconscious. Her father was vomiting and blood was coming in that vomit. After some time her mother Smt. Kamla Devi reached at the place of occurrence and her mother took her father to the house by taking him on her back. Next morning, she went along with her father from her house to Sheetala Khet Hospital and thereafter District Hospital, Almora where her father was admitted and she was also medically examined by the doctor. In the cross-examination, in para no.7 she has stated that ^^gekjh lc eqyfteku ls igys ls gh jaft”k gSA^^ She (complainant party) has enmity with all the appellants/accused. In cross- examination, in para no. 33 she has stated that ^^nwljs fnu lcsjs yxHkx 8 cts gekjs firkth dks 'khryk[ksr vLirky ys x;sA eSa vkSj esjk HkkbZ ohjflag firkth ds lkFk 'khryk[ksr x;s FksA esjh ekWa lkFk ugha xbZA firkth dks 'khryk[ksr ys tkus ls igys gekjs ?kj ij bl ?kVuk dh dksbZ Li"V fjiksVZ ugha fy[kh xbZA^^ Next day morning at about 8 AM her father was brought to the Sheetala Khet Hospital and she herself and her brother Bir Singh also went along with their father to Sheetala Khet Hospital and before reaching Sheetala Khet, no report was lodged. This witness was cross examined at length by the defence counsel but nothing has come out from her statement which may create any doubt in her evidence. The evidence of this witness is reliable and believable. 13. PW.4 is Dr. Ashok Sharma, who has stated in his statement that on 22.04.1982 he was posted a Medical Officer, District Hospital, Almora. On that day at about 2:10 PM injured Gaje Singh was medically examined by him. He has identified Gaje Singh in the court on the basis of the identification marks and he has found the following injuries on his body:- 1. 4.5cm x 0.2cm x 0.6cm. deep incised wound present over right side of forehead, 2cm above the right eyebrow, i.5 cm away from mid line. 2. 3.0cm x 0.5 cm x 0.5cm deep lacerated wound present over left side of forehead, 2cm above the left eyebrow and 3.5 cm away from mid line. 5cm x 5 cm swelling is present all around the injury. Left upper and lower eyelids are blackish and swollen (black eye). 3. 5 cm x 3 cm contusion over right infra scapular region at the level 7th to 9th thoracic vertebra. 14. He has further stated that all the injuries were kept under observation and the x-ray was advised. He has further stated that injury no.1 could possibly be caused by sharp edged weapon and injury nos.2 and 3 could possibly be caused by blunt object and all the injuries were about 24 hours old from the time of medical examination. He has prepared the report at the time of medical examination, that report is Ex.Ka.2. he has further submitted that injury no.1 could possibly be caused by axe (Kulhari) from the side to sharp edged and injury nos.2 and 3 could possibly be caused by wood side of the axe (Kulhari) and could possibly by caused by Danda also. He has further submitted that the head is the vital part of the body. He has further submitted that on 22.04.1982 at 2.25 PM he had examined Basuli Devi and found the following injuries on her body:- 1. 8cm x 2cm abrasion present over back of left shoulder. 2. 1 cm x 1 cm abrasion over extension aspect of right forearm, 10 cm proximate to the writs joint. 3 cm x 3 cm swelling is present all around the swelling. 3. 1 cm x 1 cm abrasion present over right lateral side of abdomen, 3 cm above the iliac crest. 4. Multiple abrasions present in an area of 5 cm x 3 cm over flexon aspect of left arm 1 cm above the left elbow joint. 15. He has further stated that all the injuries of Basuli Devi were simple in nature and could possibly be caused by blunt object and all the injuries were about 24 hours old from the time of the medical examination. He prepared the medical report at the time of the medical examination, that medical report is Ex.Ka.3. All these injuries could possibly be caused by Danda or by dragging. The above said injuries could possibly be caused on 21.04.82 at 7:30 PM. 16. PW.5 is Bir Singh, who has stated that he identified the accused persons who were present in the court at the time of his statement. Two accused Madan Singh and Gawali Devi were not present in the court on that day. The incident was taken place on 21.04.1982 in the evening at about 6 O’ Clock. He had gone to his filed for cutting the green barley for his buffalos. That field is near the house of the appellant Chandan Singh. He had seen in the field that the human excreta was there, then he abused to the persons who had done this foul act. In hearing this, three appellants/accused, namely,