HIGH COURT OF UTTARANCHAL AT NAINITAL. (Court’s order whether the case is or not a approved for reporting) (Chapter VIII Rule 32 (2) (b) Description of the Case. IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Criminal Appeal No. 1059 of 2001 (Old No. 1596 of 1981) Guddi and another ……. Appellants Versus State ……….. Respondent. Approved for reporting. _______________________ Not approved for reporting. Date of Decision 18th December, 2004. Initial of Judge. _________________ _________________ Court No.2 Reserved IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Criminal Appeal No. 1059 of 2001 (Old No.1596 of 1981). (1) Guddi S/o Rati Ram, (2) Ratan Singh S/o Sunu, (3) Hans Ram S/o Mohan Singh, (4) Tika Ram S/o Ratan Singh, (5) Lakhi Ram S/o Ratan Singh, (6) Libu S/o Magno, (7) Gulab Singh S/o Rati Ram, (8) Tula Ram S/o Libu (9) Balli S/o Kasia, (10)Parma S/o Sher Singh, (11)Sher Singh S/o Sri Ram alias Rati Ram, All residents of Village-Serithi Khat Uprali, Athgaon, Police Station & Tehsil-Chakrata, District Dehradun. ……….. Appellants Versus State ………… Respondent. Mrs.Pusha Joshi, learned counsel for the appellants. Sri U.P.S.Negi, learned Addl. Advocate General assisted by Sri G.S.Sandhu, learned A.G.A. for the respondent. Coram: Hon’ble P.C. Verma, J. Hon’ble B.C. Kandpal, J. (Delivered by Hon’ble B.C. Kandpal, J.) This criminal appeal arises out against the judgment and order dated 17.7.1981 passed by Additional Sessions Judge, Dehradun in Sessions Trial No. 38 of 1980, State versus Ratan Singh and 18 others, convicting and sentencing the appellant Guddi to life imprisonment under Session 302 of the Indian Penal Code; appellants Ratan Singh and Hans Ram were also convicted and each of them sentenced to life imprisonment under Sec. 302 read with Sec. 34 I.P.C.; appellants Tika Ram, Lakhi Ram and Libu were convicted and each of them sentenced to one year’s rigorous imprisonment under Sec. 324 read with Sec. 34 I.P.C.; appellants Gulab Singh and Tula Ram were convicted and each of them sentenced to one year’s rigorous imprisonment and appellants Balli, Parma and Sher Singh were convicted and each of them were sentenced to one year’s rigorous imprisonment under Sec. 324 r/w Sec. 34 I.P.C. and two year’s rigorous imprisonment and a fine of Rs. 250/- each and in default of payment of fine further rigorous imprisonment of three month’s under Sec. 326 r/w Sec. 34 I.P.C. 2- At the out set it may be mentioned that out of the above named eleven appellants, five appellants have been died during the pendency of appeal. The appeal was dismissed as abated on behalf of appellants Ratan Singh, Libu, Tula Ram and Balli, vide this Court’s order dated 01.7.2004 and on behalf of appellant Sher Singh the appeal was dismissed as abated, vide this Court’s order dated 27.8.2004. 3- The prosecution case in brief is that on 04.10.1979, at about 5.00 P.M. Sher Singh gave a written report Ext.ka-1 to Sri Paras Ram, Patwari Circle Kailo I, Chakrata, District-Dehradun with the allegations that at about 9.10 A.M. the complainant alongwith Rati Ram, Tula Ram, Mohar Singh, Bir Singh, Hans Ram, Maya Ram and Tulsi of the same village had gone for cutting the grass from the common piece of land situated at Sodhi Dhar. That meanwhile accused persons, namely, Ratan Singh, Maya Ram, Tika Ram, Lakhi Ram Pat Ram, Libu, Gulab Singh, Hans Ram, Nag Chand, Kishnu, Sita Ram, Tula Ram, Parma, Sher Singh, Jagtu, Dhoom Singh, Shiv Ram, Vali and Guddi armed with guns and Lohe Band Lathis, came with the intention to kill them when they were cutting the grass. At that time, Pat Ram, Nag Chand, Guddi has guns with them, Ratan Singh, Hans Ram, Nag Chand, Sher Singh, Parma and Siya Ram, Dhoom Singh and others had Lohe Band Lathis and stones with them. After coming to the spot, the accused persons, started beating the complainant and his companions who were cutting the grass. Accused Guddi fired with his gun at Tula Ram who died at the spot. Accused Ratan Singh and Hans Ram gave blows to Rati Ram on his head with Lohe Band Lathi due to which Rati Ram also died. Accused Nag Chand, Sher Singh, Parma, Siya Ram, Dhoom Sinmgh and others took Marpit with Bir Singh, Mohar Singh, Hans Ram, Maya Ram by means of Lathis and stones and caused injuries to them. That with great difficulty, the complainant and Tulsi managed to escape from the spot. That the aforesaid occurrence took place due to the old enmity amongst the residents of two villages, namely, Sidhi and Pokhri. 4- On the basis of this written report, F.I.R. Ext.Ka-43 was scribed by Patwari-Paras Ram on 04.10.1979, at 5.00 P.M. and the case was registered at crime No.10 of 1979 under Sec. 302 I.P.C. and under Sec. 25 Arms Act. He started investigation and went to the spot on 5.10.1979, prepared site plan of the place of occurrence Ext.Ka-11. The Investigating Officer also prepared Panchayatnama Ext.Ka-12 for deceased Tula Ram and Ext.Ka-13 for deceased Rati Ram. After completing the other formalities he sent the dead bodies of aforesaid Tula Ram and Rati Ram to Doon Hospital Dehradun for post mortem. The challans through which both the dead bodies were sent, were received in the Doon Hospital, Dehradun on 6.10.1979 at 5.30 P.M. by Dr. A.K.Verma. On the same day the Investigating Officer recorded the statements of witnesses. 5- The same day i.e. 05.10.179 he arrested accused Shiv Ram, Jagtu, Gulab Singh and prepared Fard separately. The Investigating Officer also took blood stained earth, stones and some grass and ordinary earth from each of the nearby places of the dead bodies of Tula Ram and Rati Ram and prepared Fard separately. 6- On 7.10.1979 Dr. A.K.Verma (P.W.5) conducted the post mortem on the dead bodies of Tula Ram and Rati Ram. 7- At the time of post mortem on the dead body of Tula Ram, the Dr. A.K.Verma found the following ante mortem injuries:- (1) Gunshot entry wound 2.2 cm. X 1 cm. communicating with exit wound, present 8 cm. infront of right ear. Margins are scorched and there is blackening in an area of 10 cm. X 4 cm. including the wound on right temporal region. Directed backwards and slightly upwards towards exit wound. (2) Gunshot wound 2.5 cm. X 1 cm. communicating with entry wound; situated on the top of head and 11 cm. above and below the middle of right eyebrow. No scorching or tattooing. (3) Lacerated wound 8 X 1 cm X scalp deep anterior posterior only 2 cm. below the injury No.2 and 15 cm. above the right ear. (4) Lacerated wound 2.5 X 1.5 cm.X 0.5 cm. just below the right ear X pinna of right ear is also lacerated in an areas of 4 X 2 cm. (5) Bleeding from right ear, clots present. (6) Contusion with abrasion 3 X 2 cm. over the top of right shoulder. (7) Contusion 10 X 4 cms. on the front of upper half of right arm. (8) Contusion 6 X 4 cm. on left anterior superior iliac spine and on adjacent abdomen. (9) Contusion 8 X 4 cm. on the middle of inner aspect of right thigh. In the internal examination of the dead body the doctor found the clotted blood below the scalp on the head. Both parietal bones, right temporal bones and occipital and frontal bones were found fractured and all these wounds were below the injury Nos. 1 & 2. The membrane of the brain below injury Nos. 1 & 2 was also found ruptured and conjested. The brain was found almost liquefied and mixed with blood. He also found anterior cranial fossae on right side in the middle and in the back fractured. 8- At the time of post mortem on the dead body of Rati Ram, Dr. A.K.Verma found the following ante mortem injuries:- (1) Lacerated wound 4 X 1 cm. X scalp deep 2 cm. above the right brow. (2) Incised wound 2.5 cm. X 2 cm. X scalp deep obliquely 6 cm. above the middle of right eyebrow. Elliptical shape. (3) Penetrating wound 3.5 X 1.5 cm X brain cavity deep cutting and fracturing the bone underneath in a triangular (roughly) area of 1.5 cm X 1 cm., wound situated antero posteriorly 9 cm. above the inner end of left eye brow. Margins of wound are clear cut. (4) Abraded contusion 2 X 2 cm. just outer to left eye. (5) Incised wound 3.5 X 1 cm X scalp deep with underlying bone fractured, situated obliquely 3 cm. above and behind the right ear. Elliptical. (6) Incised wound 5 X 1.5 cm X (scalp and muscle deep) 1.5 cm., 4 cm. behind and slightly below the right ear horizontally placed. (7) Lacerated wound 4 X 1 cm X skin deep on the inner aspect of left forearm just above the wrist. (8) Contusion 8 X 9 cm. on the anterior lateral aspect of middle of right arm. (9) Multiple contusions in an area of 26 X 15 cm. over the right scapula and back. (10) Multiple contusions in an area of 20 X 12 cm. over the left scapula and below. In the internal examination on the dead body of Rati Ram the doctor found clotted blood in the scalp below the injuries on the head. He also found both parietal bone, right temporal bone and occipital bone fractured at may places. He also found the brain membrane of the brain ruptured, brain in a liquefied state and mixed with blood. He also found the bones of anterior, right middle and his posterior cranial fossae fractured in many parts. He also found clotted blood in all the fossae. Pia mater and Archnoid mater membrane. 9- In the opinion of the doctor, the cause of death of both the deceased, namely, Tula Ram and Rati Ram was due to shock and haemorrhage due to above mentioned injuries. 10- Dr. K.K.Mehrotra (P.W.7) conducted the X-ray of injured Bir Singh and found his ulna bone fractured in the upper part. 11- Dr. S.K. Sharma (P.W.8) examined the injuries of accused Shiv Ram S/o Tolu on 6.10.1979 and found the following injuries:- (1) Incised wound 5 cm. X 5 cm. X muscle deep on the top of scalp 12 cm. at the right pinna and 13 cm. above nape of neck. (2) Abrasion 0.5 cm. X 0.5 cm. on exterior/posterior aspect of right arm. 4 cm. below elbow joint. (3) Abrasion 0.5 cm. X 0.5 cm. on left skin in its middle third. 14 cm. below tibial tuberosity. (4) Abrasion 0.5 cm. X 0.25 cm. on left skin in its lower third 5 cm. above ankle joint. (5) Complaint of pain over right hip. No external injury. 12- Dr.R.K.Jaiswal (P.W.9) examined injured Hans Ram S/o Bhawan Singh on 5.10.1979 at 10.10 A.M. and found the following injuries on his person:- (1) An incised wound on left parietal region of the scalp 7cm. X 0.5 cm. X skin deep. Edges are regular clean cut retracted spindle shaped. Scalp formed. (2) An contused wound in an area of 4 cm. X 4 cm. on the right parietal region of the scalp the colour of brusie is violet at periphery. Dr. Jaiswal (P.W.9) also examined injured Mohar Singh S/o Punna on the same at 10.10 A.M. and found the following injuries:- (1) An incised wound 5 cm. X 0.5 cm. skin deep, 5.5 cm. from left orbital margin edges are regular clean cut spindle shaped scab formed, on the forehead. (2) A lacerated wound in the left parietal region 12 cm. from exterior occipital protuberance 3 cm. X 0.5 cm. X. skin deep. (3) A lacerated wound sin the left parietal region 4 cm. X 0.5 cm. X skin deep. 11 cm from tragus of the left ear. (4) An contused wound in an area of 8 cm. X 4 cm. along the medial margin of left scapulas. 5 cm. from inferior angle of left scapula. Colour of the bruise changing from red to violet. During the examination of injured Maya Ram S/o Parma at 10.30 A.M. on 5.10.1979, he (P.W.9) found the following injury on his person:- An incised wound 6.5 cm. X 0.5 cm. skin deep on the left parietal region 17 cm. from exterior occipital protuberance. Edges regular, clean cut, spindle shaped scab formed. Dr.Jaiswal (P.W.9) also examined the injuries of injured Bir Singh S/o Nain Singh at 11.00 A.M. and found the following injuries:- (1) An incised wound 5 cm. X 0.5 cm. X skin deep edges regular clean cut scab formed spindle shaped 10 cm. from exterior occipital protuberance on the right parietal region of the scalp. (2) An contused swelling in an area of 10 cm. below the left elbow joint having an punctured wound in a diameter of 0.5 cm. X 1 cm. deep. Haemorrhage present inside the wound. Wound is present 5 cm. from left elbow joint on its post aspect. (3) An abrasion 5 cm. X 0.5 cm., 4 cm. from right wrist joint scab formed. 13- The investigating Officer after completing the investigation, submitted chargesheet Ext.Ka-44 against the aforesaid 19 accused persons under Sections 147, 148, 149, 302 and 326 of the Indian Penal Code and under Sec. 25/27 Arms Act. After the submission of the charge sheet, the accused were committed to the Court of Sessions and learned Additional Sessions Judge on 23.8.1980 framed the charge under Sections 147, 148, 302 and 326 read with Sec. 149 of the I.P.C. and under Sec. 324 read with Section 149 I.P.C. against accused Guddi. A separate charge under Sections 147, 148, 302 read with Sec. 149, under Secs. 326 read with Sec. 149 and 324 read with Sec. 149 I.P.C. was framed against accused Ratan Singh and Hans Ram on the same day. A separate charge under Sections 147, 148, 302 read with Sec. 149 I.P.C., under Sec. 326 read with Sec. 149 I.P.C. and Sec. 324 read with Sec. 149 I.P.C. was framed against accused Maya Ram S/o Ratan Singh, Tika Ram, Lakhi Ram, Pat Ram, Libu, Gulab Singh, Nag Chand, Phisku, Siya Ram, Tula Ram, Parma, Sher Singh, Jagtu, Dhoom Singh, Shiv Singh and Bali on the same day also. 14- The prosecution in support of its case examined P.W.1 Sher Singh, who was witness of fact and occurrence. According to prosecution case, he was present at the time of alleged occurrence and was cutting grass at that time. P.W.2 Mohar Singh was also a witness of fact and injured. P.W.3 Karam Singh, resident of village-Punha. At the time of alleged occurrence, he was going to village-Barotha and on his way to village-Barotha he saw the alleged occurrence. P.W.4 Maya Ram was also a witness of fact and an injured person. P.W.5 Dr. A.K.Verma, who conducted the post mortem on the dead bodies of deceased Tula Ram and Rati Ram, P.W.6 Ram Singh, who scribed the written report Ext.Ka-4 on 4.10.1979 at about 6 or 7.00 P.M. on the dictation of accused Ratan Singh, P.W.7 Dr. K.K.Mehrotra, who conducted the X-ray of injured Bir Singh, P.W.8 Dr. S.K.Sharma, who examined the injuries of accused Shiv Ram, P.W.9 Dr. R.K.Jaiswal, who medically examined the injured Hans Ram, Mohar Singh, Maya Ram and Bir Singh and P.W. 10 Paras Ram Patwari who investigated the case. 15- After the evidence of the prosecution was over, the statements of accused were recorded under Section 313 of the Criminal Procedure Code. They pleaded not guilty and said that they were implicated falsely in this case by Sri Paras Ram Patwari due to enmity. They also said that the said piece of grass land belongs to Sidhiwalas. Accused Ratan Singh in his statement on 8.10.1979 stated that Paras Ram Patwari arrested him and by force and coercion, obtained his signatures on a blank paper which is Ext.Ka-4. At that time, Ram Singh (P.W.6) the Ex Patwari was also with him. He further said that he had moved an application in the Court of S.D.M. to file a complaint against Paras Ram and so he was implicated falsely by Paras Ram. Accused Dhoom Singh said that he is teacher in Primary School and that on 4.10.1979 at the time of alleged occurrence, he was in the School. Accused Shiv Ram said that he received the injuries due to the fall in the night. 16- The learned Additional Sessions Judge after having perused the entire evidence on record and haring the learned counsel for the parties convicted and sentenced the accused/appellants as above. Feeling aggrieved, the appellants have come up in this appeal. 17- We have heard learned counsel for the appellants as well as learned Addl. Government Advocate and perused the record. 18- Firstly, it has been argued by the learned counsel for the Appellant that the First Information Report in the present case has not been lodged at the time as has been alleged by the prosecution. Our attention has been invited towards the overwriting in the crime number and it has been submitted that originally it was crime No.9 of 1979. It was subsequently changed into crime No.10 of 1979 and this overwriting shows that the First Information Report is ante-timed. 19- We do not find any substance in this argument. Patwari, Paras Ram, P.W. 10 has deposed in his cross-examination before the court by giving an explanation that he prepared the Chic Report on 04.10.1979 at 5:00 P.M. in triplicate. He has also deposed that when he started from the Police Station, it was not in his knowledge as to what crime number was to be endorsed on the Chik Report because of numbers of Kshetras (Circles) in the area. Hence, on presumption he put crime No.9 of 1979, which was subsequently corrected as crime No.10 of 1979. In case, if the First Information Report would have been given later on, then certainly there should have been no overwriting or any mistake in endorsing the crime number. Therefore, under these circumstances, it cannot be said that First Information Report is ante- timed. In case, if the crime number would have been written as 9 of 1979 in place of crime No.10 of 1979, then certainly the First Information Report would have been ante-timed. But the conduct of the Investigating Officer shows that he infact did not try to make the First Information Report ante-timed. 20- The evidence reveals that the copy of the First Information Report was sent to Chief Judicial Magistrate, Dehradun on 05.10.1979 and it reached to the Court on 06.10.1979. Therefore, this circumstance also shows that the First Information Report to the occurrence was immediately sent to the Magistrate concerned. Exhibit Ka.47 is the crime No.19 of 1979 which shows that before sending the accused to the court concerned for remand, the case was already registered. Therefore, under no stretch of circumstance, the First Information Report in this case can be said to be ante-timed. 21- The learned counsel for the appellant has further argued that the First Information Report has been lodged with undue delay and this delay has not been satisfactorily explained by the prosecution. It has been submitted that the incident is alleged to have taken place at 9:10 A.M. while the First Information Report was lodged at 5:00 P.M. with Patwari Circle. 22- We again do not find any force in this argument. P.W. 1, Sher Singh is the informant of the alleged occurrence and he has deposed that immediately after the occurrence, he ran-away from the spot towards the village and on the way to the village, Kedar Singh and Karan Singh R/o Village Punha met him. He told these two persons that the Sodhiwala people have picked-up a quarrel and committed Marpeet. Therefore, the informant reached to his village Pokhri and narrated the occurrence to his father Nain Singh, Chet Ram and two other persons. This witness has further deposed that meanwhile Kedar Singh and Karan Singh also reached in the village and informed that Tula Ram and Rati Ram have died and other persons sustained injuries. The informant has further stated that he was sent to Chakrata for lodging the First Information Report and he reached Chakrata at 3 to 3:30 P.M., but none was available in the court’s at Chakrata, therefore he went to scribe Mohar Singh and narrated the facts who wrote the written report exhibit ka-1 on his dictation. Thereafter, he went to Patwari with the written report and handed over the same to him. The distance of the Patwari Circle from the place of occurrence as has been mentioned in the Chik Report is about 42 Kms., therefore the explanation of the informant with regard to the delay in lodging the First Information Report appears to be justified and satisfactorily and we do not find anything on the record which may suggest that the First Information Report has been lodged with undue delay and after due deliberations in order to concocted the false case against the accused/appellants. 23- The learned counsel for the appellant has further argued that motive which has been suggested by the prosecution in the instant case appears to be quite weak and it reveals from the record that both the parties have admitted enmity which is a double edged weapon. Hence, under these circumstances, the complainant side also had an opportunity to falsely implicate the accuse/appellant. 24- In view of the aforesaid submission advanced by the learned counsel for the appellant, we have to consider the entire evidence with great care and caution. 25- P.W. 1, Sher Singh is the informant and he is also an eyewitness of the actual occurrence. He has deposed before the court that at the time of he alleged occurrence, he alongwith Mohar Singh, Beer Singh, Hans Ram, Maya Ram, Tulsi, Rati Ram and Tula Ram were cutting grass from the peace of land situated at Sodidhar and while they were cutting grass, the accused/appellant appears over there out of which accused/appellant Guddi, Patram and Nagchand had guns with them and rest of the sixteen other assailants were armed with “Lohband Lathis and stones”. The accused persons after reaching at the spot asked the complainant side as to why they were cutting the grass and started hurling abuses. When the complainant side resisted to it, then they started beating them at once. This witness has further stated that this Marpeet took place for about ten minutes and in this Marpeet, two persons had died and four persons from the side of the complainant sustained injuries on their persons. 26- Likewise, P.S. 2, Mohar Singh is also an eyewitness as well as has sustained injuries during the course of the occurrence. He has corroborated the testimony of P.W. 1 and has also deposed clearly the motive of the accused/appellant for committing the crime. The prosecution has also produced P.W. 4 Maya Ram who is also an eyewitness and has sustained injuries during the course of the occurrence. This witness has deposed that he and other persons from the complainant side were cutting grass and the accused/appellant appeared over there and objected to it. When the complainant and this witness said to the accused that the peace of the land belong to them and they are entitled to cut the grass from there, then the accused/appellant at once started beating them and in this Marpeet two persons died and four persons from the side of the complainants sustained injuries. Therefore, the motive suggested by the prosecution for commission of this crime is quite clear and we are of the definite view that the accused/appellant had a motive to commit the crime at the time of the occurrence. 27- Now, in order to assess the evidence with regard to this particular aspect of the matter as to whether the prosecution has successfully established the guilt of the accused/appellant beyond reasonable doubt or not, we have to again scrutinize the occular evidence produced by the prosecution in order to ascertain the factum of the occurrence