IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 467 of 2001 (Old No. 345 of 1995) 1. Laxman Singh Bisht S/o Harak Singh Bisht R/o Meena Bazar, Loha Ghat, Tehsil Champawat, District Pithoragarh. 2. Yadav Prasad S/o Sri Janak Prasad Bhatt R/o Binasaun, P.O. Baitari, Nepal. 3. Humraj S/o Behun Sanker Awasthi R/o Village Mohati, P.S. Darchula, Mahakali Anchal, Nepal. 4. Puran Chand S/o Dari Dutt Lakehak R/o Baitari, Nepal. 5. Jaman Singh Bisht S/o Man Singh R/o Chugh Pani, P.S. Darchula, Mahakali Anchal, Nepal. 6. Dan Singh S/o Ran Singh Badal R/o Village Hikhila, P.S. Darchula Mahelaali Anchal, Nepal. 7. Surjan Singh S/o Dan Singh R/o Duktu, P.S. Dharchula Tas, Dharchula, Pithoragarh. 8. Shyam Singh S/o Dhan Singh Kutiyal R/o Village Kuti, P.S. Dharchula, District Pithoragarh. 9. Karan Bahadur S/o Dal Bahadur R/o Pipli chauri, P.S. Darchula, Mahakali Anchal, Nepal. ...…………. Appellants Versus The State ...…………. Respondent Mr. Lokendra Dobhal, Mr. C.K. Sharma and Mr. Rajendra Kotiyal, Advocates for the appellants. Mr. H.C. Pujari, Addl. Govt. Advocate for the respondent-State. Coram : Hon’ble Prafulla C. Pant, J. Hon’ble B. S. Verma, J. Hon. Prafulla C. Pant, J. (Oral) This appeal, preferred under Section 374 of the Code 2 of Criminal Procedure, 1973, is directed against the judgment and order dated 23.02.1995, passed by learned Sessions Judge, Pithoragarh, in Sessions trial No. 31 of 1991, whereby all the nine accused / appellants, namely Laxman Singh Bisht, Yadav Prasad, Hemraj, Puran Chandra, Jaman Singh Bisht, Dan Singh, Surjan Singh, Shyam Singh and Karan Bahadur are convicted under Section 302 read with Section 149 and under Section 307 read with Section 149 of the Indian Penal Code, 1860 (hereinafter referred as I.P.C.). Accused / appellants Yadav Prasad and Laxman Singh Bisht are also convicted under Section 148 of I.P.C. Accused / appellants Hemraj, Puran Chandra, Jaman Singh Bisht, Dan Singh, Surjan Singh, Shyam Singh and Karan Bahadur are convicted under Section 147 of I.P.C. Each of the convicts has been sentenced to imprisonment for life (under Section 302 / 149 of I.P.C.; rigorous imprisonment for a period of five years and also directed to pay fine of Rs. 5,000/- (under Section 307 / 149 of I.P.C.). Each of the accused / appellants Yadav Prasad and Laxman Singh Bisht are sentenced to rigorous imprisonment for a period of three years and also directed to pay fine of Rs. 5,000/- (under Section 148 of I.P.C.). Each of the accused / appellants namely, Hemraj, Puran Chandra, Jaman Singh Bisht, Dan Singh, Surjan Singh, Shyam Singh and Karan Bahadur is also sentenced to undergo rigorous imprisonment for a period of two years and also directed to pay fine of Rs. 5,000/- (under Section 147 of I.P.C.). All the sentenced were directed to run concurrently. 3 2) Heard learned counsel for the parties and perused the lower court record. 3) Prosecution story, in brief, is that on 23.12.1990, at about 07:00 P.M., Bhawani Lal (P.W. 1), Basant Lal Verma (P.W. 2), Govind Ram (P.W. 3), Pooran Singh Rawat (P.W. 4) along with Chandra Singh Rawat (deceased) were warming themselves near a bonfire in village Bajeti, when the three accused / appellants Puran Chand, Yadav Prasad and Jaman Singh Bisht came there, and in drunken state picked firewood from the bonfire, on which Bhawani Lal (P.W. 1) objected and the three accused / appellants (all the three students of degree college) quarrelled with the aforesaid witnesses. When accused / appellants Yadav Prasad was given a blow on his face by P.W. 1 Bhawani Lal, the three accused / appellants went to the nearby hostel of the P.G. Degree College, Pithoragarh, and came along with 25–30 students. They were armed with knives, saria, danda, hockey and lathies. They started assaulting Chandra Singh Rawat (deceased), Bhawani Lal (P.W. 1), Basant Lal Verma (P.W. 2) and Govind Ram (P.W. 3). The incident was witnessed by not only the three injured eyewitnesses but also by Pooran Singh Rawat (P.W. 4) and Inder Lal Verma (P.W. 5). After injuring the above named four persons, the accused / appellants ran away towards the hostel. The villagers of village Papdev and Bajeti took the injured Chandra Singh Rawat, Bhawani Lal, Basant Lal Verma and Govind Ram to District Hospital, Pithoragarh, but Chandra Singh Rawat succumbed to the injuries on his way to hospital. First Information Report of the incident was lodged by Pooran Singh Rawat (P.W. 4), 4 at about 10:15 P.M., on the very day, naming the accused / appellants Yadav Prasad, Puran Chandra, Jaman Singh Bisht, Laxman Singh Bisht, Surjan Singh, Dan Singh, Hemraj, Karan Bahadur and Shyam Singh. Crime No. 168 of 1990 was registered at police station Kotwali Pithoragarh, relating to offences punishable under Section 147, 148, 149, 302, 307 / 34 of I.P.C. against the 25–30 students which included names of the nine accused / appellants. The investigation was conducted by In-charge Inspector Prem Pal Singh (P.W. 8). Sub Inspector Pradeep Kumar Dobhal (P.W. 7) took the dead body in his possession and prepared the inquest report (Ext. A –4) on 24.12.1990, at 08:30 A.M. The dead body was sent for postmortem examination. On that day i.e. 24.12.1990, at about 11:30 A.M., Dr. R.P. Bhatt (P.W. 6) conducted the postmortem examination on the dead body of Chandra Singh Rawat and recorded as many as eight ante mortem injuries. He prepared the autopsy report (Ext. A –3). The Medical Officer opined that the deceased had died due to shock and haemorrhage as a result of ante mortem injuries. Meanwhile, injuries of Bhawani Lal (P.W. 1), Bansant Lal Verma (P.W. 2) were recorded on 23.12.1990, after they reached the hospital, by Dr. Y.S. Rawat. Injuries of Govind Ram were also recorded on the next day by Dr. R.S. Mehta. The Investigating Officer made search inside the Government P.G. College Boys hostel and recovered some pipes, hockey sticks and danda from the rooms of the hostel belonging to the accused / appellants. Some cricket bats, rods and pipes were also found from the rooms of Virendra Singh, Harish Pal, Ravinder Singh, Laxman Singh 5 Mehta and Mahesh Singh (not accused). The Investigating Officer prepared the memorandum (A –12) relating to the above mentioned articles recovered from the hostel. After interrogating the witnesses and completion of investigation, the Investigating Officer submitted charge sheet (Ext. A – 16) against the nine accused / appellants, namely Laxman Singh Bisht, Yadav Prasad, Hemraj, Puran Chandra, Jaman Singh Bisht, Dan Singh, Surjan Singh, Shyam Singh and Karan Bahadur, for their trial in respect of offences punishable under Section 147, 148, 149, 302, 307 / 34 of I.P.C. 4) The Magistrate, on receipt of charge sheet, after giving necessary copies to the accused, as required under Section 207 of Cr.P.C., committed the case to the court of Sessions, for trial. Learned Sessions Judge, Pithoragarh, after hearing the parties on 05.02.1992, framed charge of offences punishable under Section 302 read with Section 149 and under Section 307 read with Section 149 of I.P.C. against all the nine accused / appellants, namely Laxman Singh Bisht, Yadav Prasad, Hemraj, Puran Chandra, Jaman Singh Bisht, Dan Singh, Surjan Singh, Shyam Singh and Karan Bahadur. A separate charge was framed in respect of offence punishable under Section 148 of I.P.C. against the accused / appellants Laxman Singh Bisht and Yadav Prasad. Another separate charge was framed against the remaining seven accused / appellants namely, Hemraj, Puran Chandra, Jaman Singh Bisht, Dan Singh, Surjan Singh, Shyam Singh and Karan Bahadur, in respect of offence punishable under Section 147 of I.P.C. All the accused / appellants pleaded not guilty and claimed to be 6 tried. On this, prosecution got examined P.W. 1 Bhawani Lal (eyewitness); P.W. 2 Basant Lal Verma (eyewitness); P.W. 3 Govind Ram (eyewitness); P.W. 4 Pooran Singh Rawat (informant); P.W. 5 Inder Lal Verma (eyewitness); P.W. 6 Dr. R.P. Bhatt (who conducted the postmortem examination and prepared the autopsy report); P.W. 7 Sub Inspector Pradeep Kumar Dobhal (who prepared the inquest report) and P.W. 8 In-charge Inspector Prem Pal Singh (who investigated the crime). The oral and documentary evidence was put to the accused / appellants under Section 313 of Cr.P.C., in reply to which they alleged the same to be false. However, they only admitted that they were students of the degree college and used to live in the hostel. 5) After hearing the parties, the trial court found all the accused guilty of the charge of offences framed against them in respect of offences punishable under Section 302 read with Section 149 of I.P.C. and under Section 307 read with Section 149 of I.P.C. Accused / appellants Laxman Singh Bisht and Yadav Prasad were also found guilty of charge of offence punishable under Section 148 of I.P.C., and rest of the seven accused / appellants were further found guilty of the charge of offence punishable under Section 147 of I.P.C. After hearing the parties on sentence, learned trial court sentenced each of the convicts to imprisonment for life under Section 302 read with Section 149 of I.P.C. and to undergo rigorous imprisonment for a period of five years and to pay fine of Rs. 5,000/- under Section 307 / 149 of I.P.C. The accused / appellants Yadav Prasad and Laxman Singh Bisht were sentenced to undergo 7 rigorous imprisonment for a period of three years and directed to pay fine of Rs. 5,000/- under Section 148 of I.P.C., and rest of the seven accused / appellants namely, Hemraj, Puran Chandra, Jaman Singh Bisht, Dan Singh, Surjan Singh, Shyam Singh and Karan Bahadur were sentenced to undergo rigorous imprisonment for a period of two years and to pay fine of Rs. 5,000/- under Section 147 of I.P.C. All the sentences were directed to run concurrently. Aggrieved by said judgment and order dated 23.02.1995, passed by the Sessions Judge, Pithoragarh, in Sessions Trials No. 31 of 1991, this appeal was preferred by the convicts before the Allahabad High Court on 28.02.1995, where it was admitted on 01.03.1995. The appeal is received by transfer to this Court under Section 35 of the U.P. Re-organization Act, 2000 (Central Act No. 29 of 2000), for its disposal. 6) Before further discussion, we think it just and proper to mention the ante mortem injuries recorded by P.W. 6 Dr. R.P. Bhatt, who conducted the autopsy on 24.12.1990, and prepared the autopsy report (Ext. A –3). The ante mortem injuries found on the body of Chandra Singh Rawat (deceased) are being reproduced below: i) Abraded contusion of size 4 cm X 0.5 cm, reddish blue present on left ear front upper half of ear. ii) Contuded swelling over left shoulder upper left arm, covering superior surface of left shoulder, total posterior surface of arm in an area of 20 cm X 16 cm, reddish blue in colour. 8 iii) Multiple contuded swelling on chest spread over most of back, from back of both shoulders upto lower calf region in an area of 37 cm X 35 cm about 25 contusions of different shape and size vertical, horizontal and transverse in direction, some are obliquely placed, reddish blue in colour. iv) Incised wound of size 2.5 cm X 0.5 cm on back of right thigh 19 cm above from right popreal fossa horizontal in direction, margins clean and sharp, oozing of blood present, muscle deep. v) Incised wound of size 5 cm X 1.4 cm X muscle deep of lateral aspect of right thigh at level of injury No. (iv) vertical in direction, margins clean and sharp, muscle deep. vi) Abraded contusion on chest at level of L-1 to L-3 vertebrae on midline, five in number 0.5 cm X 1 cm to 1.5 cm X 1 cm, brownish in colour. vii) A lacerated wound of entry on left thigh point 19 cm above from left knee joint size 2 cm X 1 cm, obliquely placed, on probing wound in muscle deep, bloody fluid oozes out of wound. viii) Abraded contusion over right knee about 4 cm X 2.5 cm, reddish blue in colour. 7) The Medical Officer has opined that the deceased had died on account of shock and haemorrhage as a result of ante mortem injuries. As such, it is established on the record that Chandra Singh Rawat has died a homicidal 9 death. Now, this Court has to examine whether the accused / appellants, with common object formed unlawful assembly and have committed murder of Chandra Singh Rawat, and attempted to commit murder of P.W. 1 Bhawani Lal and P.W. 2 Basant Lal Verma. As far as the injuries of P.W. 1 Bhawani Lal, P.W. 2 Basant Lal Verma and P.W. 3 Govind Ram are concerned, though the trial court has mentioned their injuries in the impugned order, but this Court on examination of the record did not find that the injury reports are proved. Neither Dr. Y.S. Rawat, nor Dr. R.S. Mehta were examined, nor anyone knowing their handwriting was got examined by the prosecution to prove the injury reports of the above three witnesses. Not only this, defence has not admitted genuineness of these documents. In these circumstances, this Court does not think fit to record the injuries mentioned in the injury reports prepared by aforesaid two doctors namely, Dr. Y.S. Rawat and Dr. R.S. Mehta. 8) Now, we come to the oral testimony of the alleged eyewitnesses of the incident namely, P.W. 1 Bhawani Lal, P.W. 2 Basant Lal Verma, P.W. 3 Govind Ram, P.W. 4 Pooran Singh Rawat and P.W. 5 Inder Lal Verma. Though, P.W. 1 Bhawani Lal, P.W. 2 Basant Lal Verma, P.W. 3 Govind Ram and P.W. 4 Pooran Singh Rawat have named the accused / appellants as the persons who assaulted the deceased, but on careful reading of their statements it is not clear if they actually knew the accused / appellants by name. In the first information report itself it has been stated that there were 25–30 students who came to the place of incident armed with knives, saria, lathies, danda and 10 pipes, and assaulted the victim and the three witnesses namely, P.W. 1 Bhawani Lal, P.W. 2 Basant Lal Verma and P.W. 3 Govind Ram. The accused / appellants are said to be one of those 25–30 persons who attacked the deceased and the alleged injured eyewitnesses. Reading of the statement of P.W. 1 Bhawani Lal shows that he identified accused / appellant Hemraj as accused / appellant Yadav Prasad. In his cross-examination he has admitted that except the three accused he did not know remaining six, by name. It is pertinent to mention here that no identification parade was got held by the Investigating Officer. 9) P.W. 2 Basant Lal Verma identified wrongly (in court) accused / appellant Dan Singh as accused / appellant Yadav Prasad, and he further committed error in the court in identifying Surjan Singh to whom he said to be Dan Singh. This indicates that this witness also did not know the accused / appellants, by name. P.W. 3 Govind Ram has stated in his cross-examination that he could not identify the students who attacked the victim and him. 10) P.W. 4 Pooran Singh Rawat, informant, though has named accused / appellants in his examination-in-chief, but it is not clear how he knew them personally, as in cross- examination he admits that he is posted as Patwari in Totta Naula on Dharchula Road, 15 kilometers away from Pithoragarh. This witness in his cross-examination further states that he does not know how many students live in hostel and where they belong. He does not know in which class the students study. He could not mention as to how 11 he know the names of the accused / appellants who are neither the relatives, nor do they belong to a nearby place to his house. Rather, he has stated that accused / appellants belong to Nepal and Dharchula. 11) P.W. 5 Inder Lal Verma has stated in clear words that he does not know the names of the accused / appellants or any of the other students who attacked the victim or the alleged injured. This witness has not been got declared hostile by the prosecution. 12) Perusal of the first information report (Ext. A –1) shows that it does not disclose that out of the nine accused / appellants who was armed with what weapon. It is argued on behalf of the accused / appellants that had the witnesses and the complainant knew the accused / appellants it should not have been difficult for them to disclose as to who was carrying what weapon. Though, the first information report is not an encyclopedia, but atleast this could have been disclosed in the first information report that who out of the nine accused / appellants was in possession of knife. 13) The search recovery memo (Ext. A –12) does not disclose recovery of either knife or saria from the rooms of the hostel where the accused / appellants along with other students used to live. Some sticks, rods, hockey and pipes are said to have been recovered from the rooms of the hostel, but merely on its basis it cannot be said that these recovered items were used in the incident. 12 14) From the above discussion of the evidence, we are of the view that prosecution has not been successful in proving charge of offences punishable under Section 302 / 149, 307 / 149, 147 and 148 of I.P.C. against the accused / appellants, beyond reasonable doubt. In the circumstances stated above, in our opinion, accused / appellants are entitled to the benefit of reasonable doubt, in this case. Therefore, their appeal is allowed. The impugned judgment and order dated 23.02.1995, passed in Sessions Trial No. 31 of 1991, by learned Sessions Judge, Pithoragarh, is hereby set aside. All the nine accused / appellants namely, Laxman Singh Bisht, Yadav Prasad, Hemraj, Puran Chandra, Jaman Singh Bisht, Dan Singh, Surjan Singh, Shyam Singh and Karan Bahadur are acquitted of the charge of offences punishable under Section 147, 148, 302 / 149 and 307 / 149 of I.P.C. They are on bail. They need not to surrender. Their sureties are discharged. The lower court record be sent back. (B.S. Verma, J.) (Prafulla C. Pant, J.) Dt. June 22, 2009. H. Negi 13