IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 238 of 2007 (Old No. 1839 of 1983) (1) Surender S/o Bundi Ram (2) Rishipal (since deceased) S/o Bundi Ram (3) Rafal S/o Asharam, R/o Village Nagla Koel, P.S. Manglaur, District Saharanpur …………………..Appellants. Versus State ..……..……..Respondent. Sri Mohd. Safdar, Advocate, holding brief of Sri Rajendra Singh, learned counsel for the Appellants. Sri M.A. Khan, Brief Holder, and Sri Tanuj Semwal, Asst. Government Advocate for the State. Along with Criminal Appeal No. 239 of 2007 (Old No. 1887 of 1983) (1) Jabir (2) Syeed S/o Bundu R/o Village Kolka, Police Station Nanglour, District Saharanpur. ……..Appellants. Versus State ………..Respondent. Sri Rajesh Joshi, Advocate for the Appellants. Sri M.A. Khan, Brief Holder, and Sri Tanuj Semwal, Asst. Government Advocate for the State. & 2 Government Appeal No. 179 of 2008 (Old No. 2392 of 1983) State ……….Appellant. Vs. (1) Surendra S/o Bindi Ram (2) Rishi Pal S/o Bindi Ram (3) Rafal S/o Asha Ram All R/o Village Nagla Koyal, P.S. Manglaur, District Saharanpur. …….Respondents. Sri M.A. Khan, Brief Holder for the State-Appellant. Sri Mohd. Safdar, Advocate, holding brief of Sri Rajendra Singh, Advocate, for the respondents. & Government Appeal No. 180 of 2008 (Old No. 2393 of 1983) State ……..Appellant. Versus (1) Nar Singh S/o Mohar Singh R/o Village Tejalhari, P.S. Manglaur, Saharanpur. (2) Suresh S/o Kala (3) Lakshmi Chand S/o Kala (4) Rishipal S/o Bundi Ram (5) Surendra S/o Bundi Ram (6) Rafal S/o Asha Ram (7) Faggan S/o Asha Ram All residents of Village Ngla Koyal, P.S. Manglaur, District Saharanpur. (8) Surendra S/o Nagina R/o Village Narsen, P.S. Manglaur District Saharanpur. ………Respondents. Sri M.A. Khan, Brief Holder for the State-Appellant. Sri Mohd. Safdar, Advocate, holding brief of Sri Rajendra Singh, Advocate, for the respondents. 3 & Criminal Revision No. 64 of 2004 (Old No. 2269 of 1983) Jamil S/o Yasin Resident of Village Nagla Koyal, Police Station Manglaur, District Saharanpur. ……..Complainant / applicant Versus (1) Nar Singh, S/o Mohar Singh Resident of Village Tejalheri (2) Suresh S/o Kala (3) Lakshmi Chand S/o Kala (4) Rishipal S/o Bundi Ram (5) Surendra S/o Bundi Ram (6) Rafal, S/o Asha Ram (7) Faggan S/o Asha Ram (8) Surendra S/o Nagina R/o Village Nagla Koyal P.S. Manglaur, District Saharanpur. (9) The State. ……..Accused / Opposite Party. Sri Rajesh Joshi, Advocate for the Revisionist. Sri Mohd. Safdar, Advocate, holding brief of Sri Rajendra Singh, Advocate, for respondents no. 1-8 and Sri M.A. Khan, Brief Holder, for State-respondent no. 9. Hon’ble Prafulla C. Pant, J. Hon’ble Dharam Veer, J. (Oral: Hon’ble Prafulla C. Pant, J.) All the above four appeals and one revision have arisen out of two cross criminal trials relating to same incident, as such these are being disposed of by this common judgment. 4 (2) Criminal Appeal No. 238 of 2007, Government Appeal No. 179 of 2008, Government Appeal No. 180 of 2008 and Criminal Revision No. 64 of 2004, are directed against the same judgment and order dated 06.08.1983, passed by Ist Additional Sessions Judge, Saharanpur, in Sessions Trial No. 167 of 1982. Criminal Appeal No. 239 of 2007 is directed against the judgment and order dated 06.08.1983, passed by the same Court (Ist Additional Sessions Judge, Saharanpur), in Sessions Trial No. 254 of 1982 (arising out of cross case of the same incident). (3) Heard learned counsel for the parties and perused the record. (4) Prosecution story, relating to Sessions Trial No. 167 of 1982 (out of which Criminal Appeal No. 238 of 2007, Government Appeal No. 179 of 2008, Government Appeal No. 180 of 2008 and Criminal Revision No. 64 of 2004 have arisen) is that a land dispute in respect of Plot No. 538, situated in Village Nagla Koyal, within the limits of Police Station Manglaur, Tehsil Roorkee, District Saharanpur (now part of District Haridwar) was going on between the accused Surendra and others on one hand and complainant Jamil Ahmed and others on the other hand, as both the parties were recorded co-tenure holders over said land. A Revenue Suit No. 55 of 1981 was instituted in the court of Assistant Collector, Roorkee, by the complainant side, which granted a stay order on 04.08.1981. Sri Shiv Saran Nath Sharma, Advocate Commissioner, went to the spot to serve the copy of said order on 05.08.1981 at about 8 a.m. He found that there was commotion on the spot between the two rival sides. When the accused side did not accept copy of the stay order, he pasted the same at a conspicuous part near the land in 5 dispute and left the place. On the same day (05.08.1981) at about 5 p.m., the complainant Jamil Ahmed (P.W.1) detected that accused Nar Singh, Suresh, Lakshmi Chand, Rishipal, Surendra S/o Bundi Ram, Rafal, Faggan and Surendra S/o Nagina (all armed with LATHIES except Laxmi Chand, who was armed with TABBAL (a heavy sharp edged weapon), were getting cut the trees. On this, Nasim (deceased) along with P.W.2 Sayeed, Jabir, P.W.5 Salim, Waheed, Jahid and Jamil (P.W.1) reached there. The aforesaid accused assaulted the above named witnesses on which the witnesses also used LATHIES against the accused in their self-defence. In the incident of marpeet Nasim (deceased) fell unconscious after receiving injuries on his head. Nasim was immediately taken to the nearby Primary Health Centre, Narsan, from where he was referred for further treatment to District Hospital, Muzaffarnagar, and thereafter to Medical College, Meerut. Nasim succumbed to the injuries on 07.08.1981 at 2.35 p.m. in Medical College, Meerut. Meanwhile, a First Information Report was lodged at 7.55 p.m. on 05.08.1981 by Jamil Ahmed (P.W.1) with Police Station Manglaur relating to offences punishable under Sections 147, 148, 323 and 324 I.P.C, against the accused. The injured Nasim was medically examined before being referred to the Medical College, by Dr. D.C. Mowar (P.W.3) at 9.10 p.m. on 05.08.1981 at District Hospital, Muzaffarnagar. Other injured namely, Sayeed Hasan (P.W.2) and Jabir Hasan were also medically examined at Primary Health Center, Narsan by Dr. Anil Arora on 06.08.1981. (5) The cross version of the incident was reported by complainant Surendra Pal Singh (P.W.1 in S.T. No. 254 of 1982) with the same Police Station Manglaur at 7.45 p.m. on 05.08.1981, against accused Jabir and Sahid S/o Bundu and 6 35 others, including Jamil, S/o Aziz Ahmed, Salim S/o Yunus, Salim S/o Barkat, which was registered relating to offences punishable under Sections 147, 148, 323, 324 I.P.C.. (6) Sub Inspector Netra Pal Singh of Police Station Manglaur investigated both the crimes and submitted charge sheet against accused appellants Surendra S/o Bundi Ram, Rishipal S/o Bundi Ram, Rafal S/o Asha Ram and other accused Nar Singh, Suresh, Lakshmi Chand, Faggan and Surendra S/o Nagina (in connection with Crime No. 181-A based on the report lodged by Jamil), for their trial in respect of offences punishable under Sections 147, 148 and 302 I.P.C.. In the cross case also charge sheet was submitted against all the 37 accused named in the First Information Report, which included Jamil, Jabir, Sahid and 34 others (named in Crime No. 181 based on the report lodged by Surendra Pal Singh), for their trial in respect of offences punishable under Sections 147, 323, 149 of I.P.C.. (7) The Magistrate on receipt of charge sheets, after giving necessary copies to the accused in both the cases, committed the cases to the court of Sessions for trial. The First Additional Sessions Judge, Saharanpur, to whom the trial was transferred, on 07.09.1982, framed charge of offence punishable under Sections 147, 302, 323 read with Section 149 I.P.C. against all the eight accused, namely, Nar Singh, Suresh, Lakshmi Chand, Rishipal, Surendra S/o Bundi Ram, Rafal, Faggan and Surendra S/o Nagina, in Sessions Trial No. 167 of 1982, who pleaded not guilty and claimed to be tried. In the connected Sessions Trial No. 254 of 1982, charge of offences punishable under Sections 147, 323 read with Section 149 I.P.C. was framed against accused Jamil S/o Aziz Ahmed, Mohzam, Salim S/o Barkat, Salim S/o Yunus, 7 Waheed, Sayeed S/o Shabbir, Jamil S/o Shabbir, Sarfoo S/o Manohar, Bhoora S/o Sarfoo, Ilyas, Mohsin, Munfait, Sagir, Sarfoo S/o Jala, Mangta S/o Sarfoo, Itwari, Fakira, Salim S/o Fakira, Jabir, Baroo, Mangta, Tahir, Asghar S/o Wahid, Jamil S/o Yasin, Bona, Shafi, Sultana, Asghar S/o Sultana, Shabbir, Mehmood, Maqsood, Nasroo, Sahid S/o Bundu, Fazla, Shamim S/o Rasoola, Nasim S/o Rasoola and Gafoor, who pleaded not guilty and claimed to be tried. In Sessions Trial No. 167 of 1982, prosecution got examined P.W.1 Jamil, P.W.2 Sayeed @ Bundu (injured), P.W.3 Dr. D.C. Mowar, P.W.4 Dr. S.K. Tyagi, Medical Officer, who conducted postmortem examination, P.W.5 Salim, P.W.6 Shiv Saran Nath Sharma, Advocate Commissioner, P.W.7 Dr. Anil Arora, P.W.8 Sub Inspector Netra Pal Singh, Investigating Officer, P.W.9 Constable Rishipal, P.W.10 Constable Rajpal Singh and P.W. 11 Constable Mange Ram. In the connected Sessions Trial No. 254 of 1982 prosecution got examined among others P.W.1 Surendra pal Singh, P.W.3 Faggan and P.W.5 Netra Pal Singh, Investigating Officer. In both the cases oral as well as documentary evidence was put to the accused. In both the cases accused pleaded that their opponents were aggressors and they (convicts) caused injuries only in their self-defence. In other words both rival parties took the plea of self-defence. After recording the defence evidence and hearing the parties in Sessions Trial No. 167 of 1982, the trial court found accused appellants Surendra S/o Bundi Ram, Rishipal and Rafal of the offence punishable under Section 304 Part-II I.P.C. read with Section 34 thereof. Each one of them was also found guilty of charge of offence punishable under Section 323 read with Section 34 I.P.C.. After, hearing the parties on sentence each one of the three convicts was sentenced to rigorous imprisonment for a period of five years under Section 304 Part-II/34 I.P.C. and rigorous imprisonment for a period 8 of one year under Section 323 read with Section 34 I.P.C.. From all other charges they were acquitted. All other accused, namely, Nar Singh, Suresh, Lakshmi Chand, Faggan and Surendra S/o Nagina, were acquitted of all the charges. On the other hand in Sessions Trial No. 254 of 1982, the trial court after recording evidence in defence and hearing the parties found accused appellant Sayeed S/o Bundu and Jabir guilty of offence punishable under Section 323 read with Section 34 I.P.C. and sentenced each one of the convicts to rigorous imprisonment for a period of one year. From all other charges they were acquitted. All other accused were acquitted of the charges framed against them. Hence, these appeals and a revision. (8) Criminal Appeal No. 238 of 2007 (Old No. 1839 of 1983) was instituted by the convicts of Sessions Trial No. 167 of 1982, Government Appeal No. 179 of 2008 (Old No. 2392 of 1983) is filed on behalf of State for enhancement of sentences. The Government Appeal No. 180 of 2008 (Old No. 2393 of 1983) was filed by the State against the acquittal of the accused (in S.T. No. 167 of 1982) from the charge of offence punishable under Section 302 I.P.C.. Against the same judgment and order dated 06.08.1983, passed in Sessions Trial No. 167 of 1982, complainant Jamil has filed Criminal Revision No. 64 of 2004 (Old No. 2269 of 1983). On the other hand Jamil and Sayeed (convicts in Sessions Trial No. 254 of 1982), preferred Criminal Appeal No. 239 of 2007 (Old No. 1887 of 1983) against the conviction and sentence recorded against them by the trial court. All the above appeals and revision were filed before Allahabad High Court from where the same are received by transfer to this Court under Section 35 of U.P. Reorganisation Act, 2000 (Central Act No. 29 of 2000). 9 (9) Before further discussions we think it just and proper to mention the ante mortem injuries found on the person of the deceased Nasim at the time of postmortem examination, by P.W.4 Dr. S.K. Tyagi (examined in S.T. No. 167 of 1982), who prepared autopsy report (Ext.A-2). The ante mortem injuries found on the person of the deceased are reproduced below:- (i) Stitched wound 4 cm with two stitches 3 cms, above the glabella. (ii) Stitched wound 4 cm. long, 7 cm above the right ear with three stitches. (iii) Lacerated wound 4 cm. x .5 cm, scalp deep, 10 cm above the left ear. (iv) Bruise 9 cm x 3 cm on the outer and upper part of right arm. The cause of death of Nasim in the opinion of the Medical Officer was coma as a result of injuries suffered by him on his head. The above mentioned injury no. (i) and (iii) found on the person of deceased corresponds with the injuries found by P.W. 3 Dr. D.C. Mowar (examined in S.T. No. 167 of 1982), who recorded injuries of Nasim at 9.10 p.m. on 05.08.1981, before the injured was referred for further treatment to Medical College, Meerut. The two injuries found on the person of Nasim read as under: (i) Lacerated wound 3” x ¼” x bone deep right side head, 5- 1/2” above right ear with 10 swelling 4” x 3” around. Advised X-ray. (ii) Lacerated wound 1-1/2” x 1/4” x bone deep on left side forehead 2” above middle of left eye brow. Advised X-ray. (10) Apart from Nasim, there are two other injured also (on the side of complainant Jamil) who suffered injuries in the incident as is apparent from the statement of P.W.7 Dr. Anil Arora (examined in S.T. No. 167 of 1982), who medically examined Sayeed Hasan (P.W.2) on 06.08.1981 at 1.00 a.m.. Injuries suffered by Sayeed Hasan, which are recorded in Ext. A-4 are reproduced below: (i) Abrasion 2 cm x 1 cm on the left side of forehead 1 cm. above the left eye brow. Colour red. (ii) Lacerated wound on the left thumb (thumb of left hand). Size 2.5 cm x .5 cm x .5 cm margin irregular, colour red. Situated just above the nail and is advised for X-ray. (11) Injured Jabir Hasan was examined by Dr. Anil Arora, who recorded following one injury in Ext.A-3 on 06.08.1981 at 1.25 a.m.:- (i) Traumatic swelling on the head, size 4 cm x 5 cm, 4 cm above the bridge of 11 nose, with contusion over the swelling size 2.5 cm x .5 cm Colour red. (12) Apart from the above three injured on the side of complainant (in S.T. No. 167 of 1982), there are three injured on the side of accused, namely, Surendra Pal Singh, Rishipal and Rafal. The injuries found by Dr. Anil Arora on the person of Surendra Pal Singh (P.W.1 in S.T. No. 254 of 1982) reads as under: (i) Lacerated wound, size 5 cm x .5 cm x .5 cm on the right side of skull 6 cm above the right eye brow, colour red. (ii) Abrasion on the right forearm size, 4 cm x2 cm, colour red. (iii) Traumatic swelling on the back on the left side 6 cm x 4 cm below the inferior angle of scapula. (13) The injuries found on the person of Rafal by same Medical Officer (P.W.4 Dr. Anil Arora in S.T. No. 254 of 1982) reads as under:- (i) Lacerated wound on the skull on the left side, size 4.5 cm x 1 cm x .5 cm. Colour red, 10 cm above the left eye brow. (ii) Traumatic swelling on the right side of back size 5.5 cm x 4.5 cm, 16 cm below the inferior angle of scapula. 12 (14) Also Rishipal (accused in S.T. No. 167 of 1982) was found to have suffered following injuries recorded by P.W.4 Dr. Anil Arora (examined in S.T. no. 254 of 1982):- (i) Lacerated wound on the middle of skull size 3.5 cm x .5cm x .5 cm colour red, margin irregular, 11 cm above the tip of nose. (ii) Lacerated wound, size 6 cm. x .5 cm x .5 cm, colour red on the right side of scalp, 8 cm above the right ear. (iii) Lacerated wound on the right ear size 2.5 cm x .5 cm x .5 cm, colour red, margin irregular. (15) The reproduction of the abovementioned injuries clearly establishes on record that in the incident out of which two cross versions have come, three persons on each side suffered injuries in the incident. It is also clear from the record that each party claimed right of self-defence in the trial they faced in the cross cases. From the evidence on record it is also clear that the parties to the incident were co-tenure holders of the same plot number over which the incident is said to have taken place. In these circumstances considering the nature of injuries suffered by accused / appellants Surendra (as mentioned in Ext. B-1), injuries suffered by Rafal (mentioned in Ext. B-2) and injuries suffered by Rishipal (mentioned in Ext.B-3), which are already reproduced above, it cannot be ruled out that they have caused injuries on the person of Nasim (deceased), Jabir and Sayeed in self-defence. None of 13 the three appellants have used any lethal weapon. All the three are said to have armed with LATHIES. When the accused / appellants themselves have suffered injuries on their person of LATHI, using LATHI by them in their self defence protects their act under Sections 96 and 97 of Indian Penal Code, 1860. That being so in the facts and circumstances of this case, it cannot be said that the accused / appellants Surendra, Rishipal and Rafal have committed culpable homicide of Nasim or have voluntarily caused hurt to Sayeed and Jabir. Therefore, having reassessed the evidence on record, we are of the view that the accused / appellants are entitled to be acquitted of the charge giving them benefit of reasonable doubt as it cannot be ruled out that they have acted only in self defence. (16) As far as the Sessions Trial No. 254 of 1982 is concerned, since the record of said case is said to have weeded out and could not be reconstructed, in the circumstances, after 25 years of the conviction recorded against the appellants Jabir and Sayeed, we are not in a position to reassess the evidence to come to the conclusion whether the charge of causing hurt to Surendra, Rishipal and Rafal stands proved or not. Having gone through the impugned judgment and order challenged in Criminal Appeal No. 239 of 2007 (Old No. 1887 of 1983), it is difficult to say that the incident had taken place in the manner alleged by the prosecution. There were 35 other persons said to be with the accused Jabir and Sayeed and both the sides were armed with LATHIES, it cannot be said that the injuries caused on the person of Rishipal, Surendra and Rafal were caused only by the two accused / appellants Jabir and Sayeed and not by other co-accused. Therefore, we are of the view that in the cross case also due to exaggeration on the part of the 14 complainant and the witnesses it cannot be said to have been proved beyond reasonable doubt that it were only Jabir and Sayeed who caused injuries on the person of Surendra, Rishipal and Rafal. That being so, these accused / appellants are also entitled to the benefit of reasonable doubt. (17) For the reasons as discussed above both the appeals, Criminal Appeal No. 238 of 2007 and Criminal Appeal No. 239 of 2007 deserve to be allowed. The same are allowed. Both impugned judgment and orders dated 06.08.1983, passed by learned Ist Additional Sessions Judge, Saharanpur, in Sessions Trial No. 167 of 1982 and Sessions Trial No. 254 of 1982 are set aside. The accused / appellants Surendra and Rafal are acquitted of the charge of offence punishable under Section 304 Part-II/34 of I.P.C. and one punishable under Section 323 read with Section 34 I.P.C. They are on bail. They need not to surrender. The appeal filed by Rishipal stands abated due to his death during the pendency of this appeal. The accused / appellants Jabir and Sayeed are also acquitted of charge of offence punishable under Section 323 read with Section 34 I.P.C.. They are on bail. They also need not to surrender. The Government Appeal No. 179 of 2008 and Government Appeal No. 180 of 2008 are dismissed. Criminal Revision No. 64 of 2004 also stands dismissed. (Dharam Veer, J.) (Prafulla C. Pant, J.) 18.08.2008 NS 15