RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.2098 OF 2001 (OLD NO.139/1992) 1. Ram Lal 2. Shyam Lal Both R/o Village Juner, Patwari Circle Narayan Bagarh, Tehsil Tharali, District Chamoli ……… Appellants Versus The State ……… Respondent Dated: March 20, 2009 Sri R.C. Tamta, learned counsel for the appellant Sri M.A. Khan, learned brief holder for the State HON. DHARAM VEER, J. This appeal, preferred by the appellants u/s 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 19.12.1991 passed by Sessions Judge, Chamoli in Sessions Trial No.17/1990, State Vs. Ram Lal & others, whereby the learned Sessions Judge convicted the accused/appellants Ram Lal and Shyam Lal u/s 323 r/w Section 149 of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and each of the accused/appellant was sentenced to undergo one year’s R.I. and a fine of Rs.250/- (two hundred fifty). In default of payment of fine, further three months S.I. was awarded. However, the co-accused persons, namely, Mohan Lal, Birendra Lal, Smt. Swari Devi and Bachhu Tamta were acquitted by the trial court of the charge levelled against them. 2. I have heard Sri R.C. Tamta, learned counsel for the appellants as well as Sri M.A. Khan, learned brief 2 holder for the State and perused the entire material available on record. 3. In brief, the facts of the case are that on 7.6.1987 at about 11:45 P:M Ramlila was being played meanwhile the accused/appellants Ram Lal and Shyam and the other co-accused persons, namely, Birendra Lal, Mohan Lal, Bachhu Tamta and Smt. Swari Devi (aquitted by the trial court) assaulted the cashier Khilap Singh of the Committee causing injuries to him on his head with Lathies due to which blood started oozing out and his eyes get closed. Then the accused/appellants snatched the bag containing Rs.4,000/- cash in it from Khilap Singh. Then Khilap Singh enraged alarm that Ram Lal and Shyam Lal, sons of Bachhu Tamta, have snatched his bag containing Rs.4,000/- from him. After hearing the noise, volunteers of the committee reached there. On this, other co-accused Mohan Lal and Birendra Lal assaulted the volunteers with Chain, Lathi and Dagger. They also pelted stones on them due to which Luthi Singh received serious injuries on his head and he fell down on earth. The co-accused also caused injuries on the back of Ranjeet Singh with Chain and pelted stone on Bhuvendra Singh due to which both of them also received injuries. Besides this, Trilok Singh has also received injuries on his leg in the incident and the co- accused persons have also assaulted Pushkar Singh on his back with Chain due to which he has received injuries. Thereafter these above-said volunteers snatched the dagger and chain from the accused persons. After this, the accused persons further broken the shop of betel, sweet and tea of the Ram Lila Committee causing a damage of Rs.500/-. The accused persons and the co- accused also threatened the volunteers to their life. With the above-said averments, Jeet Singh, Chairman of the 3 Ram Lila Committee, lodged the F.I.R. of the incident before the Patwari, Circle Narayan Bagarh, District Chamoli on 8.6.1989 at 08:00 A:M. That F.I.R. is Ext.Ka- 6. (In Rural Hilly Areas of State of Uttarakhand, the Patwaris and certain Revenue Officials are being vested with police powers vide U.P. Govt. Notification No.494/VIII-418-16 dated 7.3.1916). On the basis of this F.I.R., Chik F.I.R. was prepared i.e. Ext.Ka-8. The necessary entries were also made in the G.D., copy of which is Ext.Ka-9. Injured Khilap Singh was medically examined by the Medical Officer, Dr. S.S. Pal (P.W.1) on 8.6.1987 at 11:05 A:M and the injury report was prepared, which is Ext.Ka-1. Supplementary report of Khilap Singh was also prepared by Dr. S.S. Pal (P.W.1), which is Ext.Ka-2. Other injured persons, namely, Luthi Singh, Bhupendra Singh and Trilok Singh were also medically examined by the same doctor on 8.6.1987 at 11:18 A:M, 11:30 A:M and 11:45 A:M, respectively. Injury reports of Luthi Singh, Bhupendra Singh and Trilok Singh are Ext.Ka-3, Ext.Ka-4 and Ext.Ka-5 respectively. The accused/appellants Shyam Lal, Ram Lal and the co-accused Birendra Lal were also medically examined by Dr. S.S. Pal (P.W.1) on 8.6.1987 at 10:15 A:M, 9:20 A:M and 10:00 A:M respectively. On 11.6.1987, Smt. Swari Devi was also medically examined by the same doctor at 04:50 A:M. The injury reports of Shyam Lal, Birendra Lal, Ram Lal and Smt. Swari Devi are Ext.Kha-1, Ext.Kha-2, Ext.Kha-3 and Ext.Kha-4, respectively. During the course of investigation, the Investigating Officer (Patwari) inspected the place of occurrence and prepared the site-plan which is Ext.Ka- 10. The I.O. recovered the pieces of chain from the place of occurrence and prepared the FARD, which is Ext.Ka- 11. Bloodstained clothes viz. shirt, under shirt and underwear worn by the injured Khilap Singh at the time 4 of incident was also recovered by the I.O. and the FARD was prepared, which is Ext.Ka-12. Dagger which was said to be used in the said crime was also took into possession by the I.O. and the FARD was prepared i.e. Ext.Ka-13. During the course of investigation, the I.O. recorded the statement of the witnesses and after completing the investigation, he filed the charge sheet against the accused/appellants Ram Lal and Shyam Lal and the other co-accused persons, namely, Mohan Lal, Birendra Lal, Smt. Swari Devi and Bachhu Tamta (acquitted by the trial court). That charge sheet is Ext.Ka-7. 4. Learned Chief Judicial Magistrate, Chamoli committed the case to the Court of Sessions on 10.10.1990 after giving necessary copies to the appellants/accused and the other co-accused persons (acquitted by the trial court) as provided under section 207 Cr.P.C. 5. On 29.10.1990, learned Sessions Judge, Chamoli framed the charge of offence punishable under Sections 147 I.P.C. against the accused/appellants Ram Lal and Shyam Lal and the other co-accused persons, namely, Birendra Lal, Bachhu Tamta and Smt. Swari Devi (acquitted by the trial court). Co-accused Mohan LaL, who was also acquitted by the trial court, was also found guilty and the charge u/s 148 I.P.C. was framed against him on 29.10.1990. On the same day i.e. on 29.10.1990, charge under Sections 323 r/w 149, 427 and 395 I.P.C. was also framed against the accused/appellants Ram Lal and Shyam Lal and all the co-accused persons, namely, Birendra Lal, Mohan Lal, Bachhu Tamta and Smt. Swari Devi. The charge was read over and explained to each of the accused and the co-accused, who pleaded not guilty and claimed to be tried. 5 6. In order to prove its case, the prosecution has examined P.W.1 Dr. S.S. Pal, Medical Officer, P.W.2 Jeet Singh, who had lodged the F.I.R. of the said incident, P.W.3 Luthi Singh-injured eyewitness, P.W.4 Khilap Singh-injured eyewitness, P.W.5 Laxmi Prasad-Patwari and Investigating Officer, who after completing the investigation had filed the charge sheet against the accused/appellants and the other co-accused, P.W.6 Ganga Ram and P.W.7 Sarveshwar Prasad, Patwari/Investigating Officer, who initially had done the investigation of this case. 7. After that the statement of the accused/appellants and the co-accused were recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to each of the accused and the co-accused in question form, who has denied the allegations made against each of them. In defence, they have filed the injury reports Ext.Kha-1 to Ext.Kha-4 and the F.I.R. of the same incident which was lodged by them, which is Ext.Kha-5. However, they have not produced any oral evidence in their defence. In reply to question no.23 Ram Lal has stated that they have also lodged the report of the same incident and they have been falsely implicated in the above-said case due to enmity. In reply to question no.23 Shyam Lal has stated that on first day of Ram Lila he has played the role of demon and by mistake he went on the stage due to which people of higher castes in Village Juner became angry with him and they (Villagers) came to their house and committed Marpeet with them. He further stated that they (accused and co-accused persons) have also lodged the report of the same incident and they have been falsely implicated in the above-said case. 8. After appreciating the entire evidence available on record and hearing learned counsel for the parties, learned Sessions Judge, Chamoli vide his judgment and order dated 19.12.1991 convicted and sentenced the appellants/accused as above. However, the co-accused persons, namely, Mohan Lal, Birendra Lal, Smt. Swari 6 Devi and Bachhu Tamta were acquitted by the trial court of the charge levelled against them. Feeling aggrieved by the said judgment and order, the appellants/accused have preferred the present appeal. 9. Before further discussion, it is pertinent to mention the injury report of the injured Khilap Singh, who was medically examined by Dr. S.S. Pal (P.W.1) on 8.6.1987 at 11:05 A:M and the following injuries were found on his body, which are reproduced as under:- (i) A lacerated wound 5cm x 1/2cm. Straight, bony deep, edges are irregular over outer side of the centre of the head. 11 cm above the right ear. The wound is accompanied with traumatic swelling and clotted dark blood is accumulated over the wound. (ii) Complain of pain over right ankle joint. Opinion:- Injury No.1 is head injury so patient is kept for observation for 48 hours. Duration of injury is 1/2 day. Injury caused by blunt weapon. 10. Dr. S.S. Pal (P.W.1) has also medically examined the injured Luthi Singh on 8.6.1987 at 11:18 A:M and he has found the following injury on his body, which is reproduced as under:- (i) A Lacerated wound 3 x 1/2cm, Skin deep, oblique, edges are irregular over left outer side of the head, 4cm above the left ear. Opinion:- Injury No.1 is head injury so patient is kept for observation for 48 hours. Duration 7 of injury is 1/2 day. Injury caused by blunt object. 11. Injured Bhupendra Singh was also medically examined by the same doctor on 8.6.1987 at 11:30 A:M and the following injury was found on his body, which is reproduced as under:- (i) An abrasion 2 x 1cm accompanied with traumatic swelling over right knee joint outer side. Opinion:- Duration of injury is 1/2 day. Injury No.1 is simple. Injury caused by blunt object. 12. Injured Trilok Singh was also medically examined by the same doctor on 8.6.1987 at 11:45 A:M and the following injury was found on his body, which is reproduced as under:- (i) Traumatic swelling over base of the left beg toe. 13. Injury report of the injured Khilap Singh, Luthi Singh, Bhupendra Singh and Trilok Singh are Ext.Ka-1, Ext.Ka-3, Ext.Ka-4 and Ext.Ka-5 respectively, which were prepared at the time of medical examination. In the opinion of Dr. S.S. Pal, injury no.1 of the injured Khilap Singh, which was kept under observation was proved simple. Supplementary report of the injured Khilap Singh was prepared on 11.6.1987 at 10:40 A:M. That supplementary report is Ext.Ka-2. 14. Accused/appellant Shyam Lal was also medical examined by Dr. S.S. Pal (P.W.1) on 8.6.1987 at 10:15 A:M and he has found the following injury on his body, which is reproduced as under:- (i) There is no sign of external injury. 8 Patient complained of pain over the chest and back of the chest. Patient is kept under observation for 48 hours. 15. Co-accused Virendra Lal was also medical examined by Dr. S.S. Pal (P.W.1) on 8.6.1987 at 10:00 A:M and he has found the following injuries on his body, which are reproduced as under:- (i) A lacerated wound 0.5cm x 1/2cm, transverse skin deep, edges are irregular over centre of the head. (ii) An abrasion 1/2 x 1/2cm over outer side of the lower abdomen. (iii) A complain of pain over back of the chest. Opinion:- Injury No.1 is head injury and patient is kept under observation for 48 hours. Injury No.2 is simple. Duration of wound is 1/2 day. Injury caused by blunt object. 16. Accused/appellant Ram Lal was also medical examined by Dr. S.S. Pal (P.W.1) on 8.6.1987 at 09:20 A:M and he has found the following injuries on his body, which are reproduced as under:- (i) A lacerated wound vertical bony deep, edges are irregular and inverted 0.5cm x 1cm over outer side and left side of frontal head 1/2cm above the left eye brow. (ii) A traumatic swelling 4cm circular over left side of the frontal head. (iii) An abrasion 2 x 1/2cm over the front side of the right shoulder joint. 9 (iv) A multiple abrasion over mid of the shin of the right tibia. (v) Complain of pain left side of the lower abdomen. Opinion:- Patient is kept under observation for 48 hours. Duration of injury is 1/2 day. Cause of injury is due to blunt object. Injury no.1 is under observation. Injury Nos.2, 3 & 4 are simple. 17. Co-accused Smt. Swari Devi was also medical examined by Dr. S.S. Pal (P.W.1) on 11.6.1987 at 04:50 A:M and he has found the following injuries on her body, which are reproduced as under:- (i) There is no sign of external injury. (ii) Complain of pain over chest and back of the chest and difficulty in breathing. Patient kept under observation for a day. 18. To prove the above-noted injury reports, the prosecution has examined Dr. S.S. Pal (P.W.1), who has stated that on 8.6.1987 he was posted Medical Officer at Primary Health Centre, Narayan Bagarh. On that day he has medically examined the injured Khilap Singh at 11:05 A:M and has found the above-noted injuries on his body. He further stated that in his opinion the injury was half day old and was possible to come by a blunt object. He has proved the injury report Ext.Ka-1. He has further stated that due to injury no.1 the patient was kept under observation. On 11.6.1987 supplementary report of the injured was also prepared by him which is Ext.Ka-2. He further stated that on the same day i.e. on 8.6.1987 he has also done the medical examination of the injured Luthi Singh at 11:18 A:M and has found the above-noted 10 injuries on his body. He has proved the injured report Ext.Ka-3. He further stated that the injuries which were found on the body of the injured Khilap Singh and Luthi Singh could be possible by Lathi and stone on 7.6.1987 at about 11:45 or 12:00 in the night. On the same day he has also done the medical examination of the injured Bhupendra Singh and Trilok Singh and has found the above-noted injuries on their body. Thereafter, he has prepared the injury reports Ext.Ka-4 and Ext.Ka-5. In the cross-examination, he has stated that on the same day i.e. on 8.6.1987 he has medically examined the accused/appellants Ram Lal and Shyam Lal and the co-accused Birendra Lal and has found the above-noted injuries on their body. He has proved the injury reports which are Ext.Kha-1 to Ext.Kha-3. On 11.6.1987, he has also medically examined another co- accused Smt. Swari Devi and has prepared the injury report at the time of medical examination which is Ext.Kha-4. He has further stated that the accused Ram Lal, Shyam Lal and Birendra Lal were remained admitted in the hospital as indoor patient from 8.6.1987 to 11.6.1987. Injured Luthi Singh and Khilap Singh were also hospitalized in the hospital. 19. Further to prove its case, the prosecution has examined P.W.2 Jeet Singh, who has stated that on the date of incident Ram Lila was being played in his village and it was the last day of Ram Lila. That on 11:45 P:M he was sitting near the stage of Ram Lila meanwhile there was sudden failure of electricity and it started raining. Then Kalyan Singh and Gabbar Singh came to him and told him that Ram Lal, Shyam Lal, Mohan Lal and Birendra Lal S/o Bachhu Tamta has caused injuries to the cashier Khilap Singh with stones and lathi and they have also snatched a bag of money containing Rs.4,000/- from 11 Khilap Singh. On this, he went to canteen of the Ram Lila where he saw that blood was oozing out form the head of Khilap Singh. Luthi Singh was also there and the blood was also oozing out from his head. Both of them (Khilap Singh and Luthi Singh) told him that Ram Lal, Shyam Lal and their family members has caused injuries to them with stone and lathi. Ranjeet Singh was also present on the spot, who has also received the injury on his back. Ranjeet Singh also told him that Shyam Lal and his family members has assaulted him with Chain and Roop Singh had snatched the chain from Shyam Lal. Trilok Singh has also received injuries in the incident. He (Jeet Singh) further stated that he has lodged the report of the incident on 8.6.1987 before Patwari, Narayan Bagarh. He has proved the report Ext.Ka-6. He further stated that in Ram Lila Harmonium Master was Ganga Ram who was Harijan by caste. In the cross-examination, he has stated that at the time of incident there was no electricity and it had raining. The stage was at a distance of 50 mt from tea shop. On that day there was too much crowd in Ram Lila. He got the information of the said incident. He has not seen the incident of causing injuries to the injured and of snatching the bag. 20. P.W.3 is Luthi Singh, who has stated that in the year 1987 Ram Lila had taken place in his village and he had also gone to see Ram Lila. On the last day of Ram Lila, there was no electricity and it was raining. Cashier Khilap Singh enraged alarm that Shyam Lal has assaulted him. He further stated that Ram Lal has caused injuries to him with stone. Then the villagers have intervened in between the fight. Due to the injuries he had fallen down and he had not seen anyone there. Next day he was medically examined in the hospital. Jeet 12 Singh was the President of Ram Lila and he (Jeet Singh) has also came to hospital. He further stated that he has told the incident to Jeet Singh. In the cross-examination, he has stated that at the time of incident it was complete dark. When he was sitting in the Pandal then the electricity has gone. 21. P.W.4 is Khilap Singh, who has stated that he was the treasurer of Ram Lila and Jeet Singh was its President. He further stated that the said incident had taken place in the month of June. On the date of incident at about 12:00 in the night he was returning back to his house. He was having subscription amount of Rs.4,000/- with him which were inside the bag. Near the canteen accused/appellant Shyam Lal gave a Danda blow on him. Ram Lal, Birendra Lal and Mohan Lal were there and their parents were also there. Ram Lal snatched the bag from him. Then he enraged alarm that sons of Bachhu Tamta have assaulted him. At that time there was no electricity. Luthi Singh and Volunteers Bachan Singh, Roopveer Singh, Nandan Singh, Roop Singh and other people reached there. President of Ram Lila also came there. Then he told the whole incident to him. Accused/appellants Ram Lal and Shyam Lal absconded from the place of occurrence. Birendra Lal was having dagger in his hand. He (Khilap Singh) received injuries on his head. Next day his medical examination was done. Jeet Singh has taken him for the medical examination. In the cross-examination, he has stated that the canteen was at a distance of 20-30 feets from the stage. After completion of Ram Lila he was going to his house. At the time of incident he was alone. He further stated that he received injuries on his head and he became unconscious. 13 22. P.W.5 is Laxmi Prasad, who has stated that on 28.8.1988 he was posted as Patwari of Circle Narayan Bagarh. Before him, investigation of this case was done by Sarveshwar Prasad (Patwari). During the course of investigation, he has recorded the statement of the witnesses and after the investigation he filed the charge sheet against the accused/appellants and the other co- accused. That charge sheet is Ext.Ka-7. 23. P.W.6 is Ganga Ram, who has stated that he does the work of playing Harmonium. In the year 1987 he had gone to Village Juner for playing Harmonium in Ram Lila. He was living in the house of Mahipal Singh, who was of higher caste and he (Ganga Ram) is Harijan by caste. He used to play Harmonium while sitting in the tent (Pandal) outside the stage and his son was playing a role in Ram Lila. He further stated that no discrimination was happened with him on the basis of caste. 24. P.W.7 is Sarveshwar Prased, who has stated that on 8.6.1987 he was posted Patwari of Circle Narayan Bagarh. On the basis of the F.I.R. (Ext.Ka-6), he has prepared the Chik F.I.R. (Ext.Ka-8). The necessary entry was also made in the G.D., copy of which is Ext.Ka- 9. On the same day he has recorded the statement of the witnesses, inspected the place of occurrence and prepared the site-plan, which is Ext.Ka-10. He also prepared the FARD (Ext.Ka-11) on the same day. The cycle chain was recovered which is Ext.1. Bloodstained clothes were also recovered and the FARD was prepared which is Ext.Ka-12. Recovery memo of dagger was also prepared, which is Ext.Ka-13 and the recovered dagger is Ext.5. After 4.8.1987 he was transferred from that place, then the investigation of this case was done by Patwari, Laxmi Prasad (P.W.5). 14 25. After that the statement of the accused/appellants and the co-accused were recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to each of the accused and the co-accused in question form, who has denied the allegations made against each of them. In defence, they have filed the injury reports Ext.Kha-1 to Ext.Kha-4 and the F.I.R. of the same incident which was lodged by them, which is Ext.Kha-5. However, they have not produced any oral evidence in their defence. In reply to question no.23 Ram Lal has stated that they have also lodged the report of the same incident and they have been falsely implicated in the above-said case due to enmity. In reply to question no.23 Shyam Lal has stated that on first day of Ram Lila he has played the role of demon and by mistake he went on the stage due to which people of higher castes in Village Juner became angry with him and they (Villagers) came to their house and committed Marpeet with them. He further stated that they (accused and co-accused persons) have also lodged the report of the same incident and they have been falsely implicated in the above-said case. 26. Learned counsel for the accused/appellants has submitted that the prosecution has not proved the case beyond reasonable doubt against the accused/appellants u/s 323 r/w Section 149 I.P.C. I find substance in the arguments raised by learned counsel for the accused/appellants due to following reasons:- a) That Jeet Singh (P.W.2) has stated in his statement that he got the information about the incident from Kalyan Singh and Gabbar Singh and the information was lodged by him on the basis of their information. He has 15 further stated that he has not seen the incident. Since the information was lodged by Jeet Singh on the information of Kalyan Singh and Gabbar Singh but these two witnesses were not examined by the prosecution, which creates a reasonable doubt in the prosecution story. b) It has come in the statement of Jeet Singh, Khilap Singh and Luthi Singh that at the time of incident there was no electricity and it was completely dark. It was also raining at that time. Jeet Singh has also stated in his statement that on