RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL GOVERNMENT APPEAL No.1610 of 2001 (OLD NO.1731 OF 2000) The State ………….Appellant Versus Banshi Lal & Others …….. Respondent Dated: November 05, 2009 Sri Nandan Arya, learned AGA for the State/appellant Sri Rajesh Sharma, Adv. i/b Sri Rakesh Thapliyal, Adv. for the respondents Coram: Hon’ble B.C. KANDPAL, J. Hon’ble DHARAM VEER, J. PER HON’BLE DHARAM VEER, J. This appeal, preferred by the State-appellant under Section 378 of the Code of Criminal Procedure 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 08.12.1999 passed by the Additional Sessions Judge, Dehradun in Sessions Trial No.236 of 1996, State Vs. Banshi Lal & Others, whereby the learned Addl. Sessions Judge has acquitted the respondents-Banshi Lal, Mani Ram, Ram Chandra, Kaatkoo, Bhajan Lal, Mam Chand & Indru for the offences punishable under Sections 147, 506 r/w Section 149 and Section 302 r/w Section 149 of the Indian Penal Code, 1860 (hereinafter to be referred as IPC). 2 2. It is pertinent to mention at the outset that in the evidence the name of accused Mam Chand has been described as Pam Chand while in the judgment, his name has been disclosed as Mam Chand. The accused Pam Chand & Mam Chand is the same person. 3. We have heard learned counsel for the parties and perused the entire material on record. 4. In brief, the prosecution case is that P.W.3 Kalyan Singh lodged an FIR with Patwari, Patti Circle Chajjar, Tehsil Chakrata, District Dehradun with the averments that on 22.4.1996 he along with Ganesh and Chatru (PW1) of his village had gone in the marriage at the house of Bhao Singh of village Harar. In the marriage, the respondents-Banshi Lal, Mani Ram, Ram Chandra, Kaatkoo, Bhajan Lal, Pam Chand & Indru came and started abusing after consuming liquor. On being asked the by complainant and his companions to the respondents not to make noise then the respondents-accused threatened the complainant and his companions to their lives. On 23.4.1996 at about 9:00 A.M., when the complainant and his companions were going to the house of Sitaboo and Saanjiya (PW2) of village Harar for taking tea, the above-said accused- respondents Banshi Lal and Ram Chandra armed with chains of cycle, accused/respondent Bhajan Lal armed with pestle (MOOSAL) and respondents-accused Katkoo, Mani Ram, Pam Chand and Indru armed with Lathis, came and attacked on the complainant and his associates with the intention to kill them. It was further averted that respondents-accused Banshi Lal 3 and Ram Chandra with chain of cycles and respondent- accused Bhajan Lal with pestle (MOOSAL) inflicted injuries on the head of Ganesh and respondents- accused Kaatkoo, Mani Ram, Pam Chand and Indru also inflicted injuries to Ganesh with Lathi, fists and kicks as a result of which Ganesh fell down on the earth. On raising alarm by the complainant and Chatru (PW1), Ramesh Chand (PW6), Chandra Das, Bhopal Das (PW5) and other persons of village Harar came at the spot on which the accused persons ran away from the spot. While going, the accused also gave threat to kill the complainant to his life. It was further averted that Ganesh was lying unconscious on the spot and blood is oozing out from his nose, ear and mouth and it is hardly possible for him to survive. With these averments, the FIR Ex.Ka-1 was lodged by P.W.3 Kalyan Singh on 23.4.1996 at 9:30 A.M. with Patwari, Patwari Circle Chajjar, Tehsil Chakrata, Distt. Dehradun. On the basis of FIR Ex.Ka-1, P.W.11 Patwari Kunwar Singh Negi prepared the Chik FIR of the case, i.e. Ex.Ka-6. (In the 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). Injured Ganesh was immediately medically been examined by P.W.7 Dr. Shri Gopal on 23.4.1996 at 9:30 A.M. and prepared the medical report Ex.Ka-3. Thereafter, the x-ray of injured Ganesh was conducted by P.W.9 Dr. Suresh Mehta and prepared the x-ray report, i.e. Ex.Ka-5. The Patwari/I.O. also recovered the pestle and chain of cycle from the bushes and for which prepared the Fard, i.e. Ex.Ka-2. Site plan of the 4 place where the pestle and cycle chain was recovered, was also been prepared, i.e. Ex.Ka-9. The I.O. also recovered the bloodstained jacket of injured Ganesh and after taking the same into possession, he prepared the Fard, i.e. Ex.Ka-8. The I.O. also prepared the site plan of the place of occurrence, i.e. Ex.Ka-7. Later on the injured Ganesh succumbed to his injuries and the post-mortem on his dead body was conducted by P.W.8 Dr. H.G.S. Manral on 25.4.1996 at 4:05 P.M. and the post-mortem report was prepared i.e. Ex.Ka-4. The I.O. during the course of investigation recorded the statements of witnesses and on completing investigation, filed the charge sheet against the respondents-accused in the court under Section 120-B, 147, 506, 302 IPC, i.e. Ex.Ka-10. 5. After receiving the charge sheet, learned Chief Judicial Magistrate, Dehradun committed the case to the court of Sessions on 10.09.1996 after giving necessary copies to the respondents/accused as provided under Section 207 Cr.P.C. The case was transferred to Addl. Sessions Judge by the Sessions Judge for disposal as per law. 6. Learned Additional Sessions Judge, Dehradun has framed the charges against the respondents/accused under Sections 147 IPC, 506 r/w Section 149 IPC and 302 r/w Section 149 IPC. The charges were read over and explained to respondents/accused, who pleaded not guilty and claimed to be tried. 5 7. To prove its case, the prosecution has examined P.W.1 Chatru, eyewitness, P.W.2 Sri Saanjiya, P.W.3 Kalyan Singh, eyewitness, P.W.4 Sunder Singh, P.W.5 Gopal Dass, P.W.6 Ramesh Chand, P.W.7 Dr. Sri Gopal who initially examined Ganesh, P.W.8 Dr. H.G.S. Manral, who conducted the post-mortem, P.W.9 Dr. Suresh Mehta, Senior Radiologist, who prepared the x-ray report, P.W.10 Ramanand and P.W.11 Patwari Kunwar Singh Negi, I.O. of the case. 8. After that the statements of the respondents/ accused were recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to each of them in question form, who denied the allegations made against each of them and stated that they have falsely been falsely implicated. However, they did not produce any oral or documentary evidence in defence. 9. After hearing learned counsel for the parties and appreciating the entire material available on record, the learned Addl. Sessions Judge, Dehradun vide judgment and order dated 08.12.1999 acquitted the respondents/accused as discussed above. Feeling aggrieved by the aforesaid judgment and order, the State/appellant has come up in appeal. 10. Before any further discussion, it is pertinent to mention that the injured Ganesh was initially been medically examined by P.W.7 Dr. Sri Gopal on 23.4.1996 at 9:30 A.M. The medical officer in the injury report Ex.Ka-3 opined as under: - 6 “Blunt head injury” Advised x-ray skull Referred to Distt. Hospital” 11. To prove the above-said report, the prosecution has examined P.W.7 Dr. Sri Gopal who stated that on 23.4.1996 at 9:30 A.M. he had medically examined Ganesh who was having injuries on his head. He had not mentioned the measurement of the injuries however he had mentioned the injuries in the O.P.D. Register which he produced in the court, i.e. Ex.Ka-3. Injured was referred for x-ray of skull for Doon Hospital. He further stated that the injuries were fresh and could be caused on the same day i.e. on 23.4.1996 at 9:00 A.M. He further stated that the said injury could be possible to cause by pestle (MOOSAL). 12. Thereafter, the x-ray of the skull of injured Ganesh was conducted by P.W.9 Dr. Suresh Mehta, Senior Radiologist who in the x-ray report Ex.Ka-5 opined as under: - “Fracture fronto parietal bones of skull vault seen” 13. To also prove the x-ray report, the prosecution has examined P.W.9 Dr. Suresh Mehta who stated that on 24.4.1996, a technician under his supervision conducted the x-ray of skull of Ganesh. He prepared the x-ray report i.e. Ex.Ka-5 and recorded the above-noted injury. X-ray plate was marked as Ex.3. He has specifically stated that the said 7 fracture could be caused by any hard blunt object such as pestle (MOOSAL). 14. Later on the injured Ganesh succumbed to his injuries and the post-mortem on his dead body was conducted by P.W.8 Dr. H.G.S. Manral on 25.4.1996 at 4:05 P.M. and the following ante-mortem injuries were recorded in the post-mortem report Ex.Ka-4: - 1. Contused swelling 7 cm x 4 cm right side face 2. Right eye is black 3. Contused swelling 4 cm x 5 cm upper eye left side with clotted blood 4. Multiple abrasions 3 cm x 2 cm right side face just below eye. Cause of death was opined due to coma and shock as a result of ante-mortem head injury. 15. To prove the above-said post-mortem report, the prosecution has examined P.W.8 Dr. H.G.S. Manral who stated that on 25.4.1996 at 4:05 P.M. he had conducted the post-mortem on the dead body of deceased Ganesh and recorded the above-noted ante- mortem injures. He also stated that the cause of death is coma and shock as a result of ante-mortem injuries. He further stated that the deceased had died on 25.4.1996 at 4:30 A.M. in Doon Hospital, Dehradun. Injuries No.1, 2 and 3 could possibly be caused by pestle (MOOSAL) while injury no.4 could possibly be 8 caused by the cycle chain. He also prepared the post- mortem report and proved the same, i.e. Ex.Ka-4. 16. To further prove its case, the prosecution has examined P.W.1 Chatru who stated that on 22.4.1996 he had gone in the marriage at village Harar where he and his companions were having their DERA. There respondents-accused Banshi Lal, Bhajan Lal, Ramaiya (Ram Chandra), Indru, Pam Chand, Kaatkoo and Mani Ram also came at about 12:00 A.M. in the night and asked him and his companions to dance and sing. He and his companions refused for the same as they did not know to sing and dance. All the respondents- accused were under the state of intoxication and due to his refusal to sing and dance, some hot altercation took place between them. Respondent-accused Kaatkoo gave a slap on his face and the accused persons went away after threatening them that they will be seen in the morning. On the next day at about 9:00 A.M., Sitabu and Saanjiya (P.W.2) came to them to invite on tea on which they (this witness along with Kalyan Singh and Ganesh) started to move. On the way near the house of Chandru, the accused persons met them. Respondent-accused Bhajan Lal @ Bhajnu was armed with pestle (MOOSAL) and respondent-accused Banshi Lal was armed with chain of cycle and rest of the respondents-accused were armed with Lathis. Soon thereafter, those respondents-accused started beating him and his companions due to which Ganesh fell down as a result of the injuries sustained by him. Blood was also oozing out from the face and ear of Ganesh. He and Kalyan Singh were also being beaten by fists and 9 kicks. On raising hue and cry, Ramesh Chand, Bhopal Dass and Chandru and several other persons of the village Harar also came on the place of occurrence and on their coming, the respondents-accused ran away from there. This witness was cross-examined at length by the defence counsel but nothing has come out in his statement which may create any doubt in his statement. The statement of this witness is reliable and believable. 17. P.W.2 Saanjhiya has not supported the prosecution case and was declared hostile. 18. P.W.3 is Kalyan Singh, eyewitness, has stated that on the date of incident he along with Ganesh, Chatru, Bansi Lal S/o Dharam Das etc. had gone to attend the marriage of daughter of Bhao Singh at village Harar. In the night at 11-11:30 P.M., respondents-accused Bansi Lal, Bhajan Lal, Mani Ram, Kaatkoo, Ram Chandra, Indru and Pam Chand had come there in the state of intoxication and started making noise and abusing. He directed the respondents-accused to go from there as the said DERA was allotted to them on which some hot altercation took place. The respondent-accused Kaatkoo gave a slap to Chatru (P.W.1). On this he and his associates ousted the respondents-accused from there. However, while going the respondents-accused threatened that they would be seen in the morning. In the morning, Sitaboo and Saanjiya came to invite him and his companions for tea. On this he along with Ganesh and Chatru went to take tea. On the way near the house of 10 Chandru, the above-said accused persons met them. Respondent-accused Bansi Lal was having a chain, Bhajan Lal was having pestle and rest of them were having Lathis and all of them started beating him and his companions due to which Ganesh sustained the injuries. He was beaten by respondent-accused Bansi Lal by Lathis and hands and made him to fell down. Chatru also fell down. Ganesh was seriously been injured and blood was oozing out from his ear and mouth. Thereafter, he along with others went to Patwari Chhajar from where they were taken to hospital and there the Patwari met them and the entire was incident was disclosed to the Patwari. Then the report of the case was lodged by him, i.e. Ex.Ka-1 and he proved the same. Injured Ganesh was also brought with him from where he was taken to Tuni Hospital and from there he was referred to Doon Hospital. This witness was also cross-examined at length by the defence counsel but nothing has come out in his statement which may create any doubt in his statement. The statement of this witness is also reliable, believable and natural. 19. P.W.4 is Sunder Singh who stated that in the above-said incident, the Patwari/I.O. had recovered the pestle and chain into possession for which the Fard was also prepared and he also signed on the same, that Fard is Ex.Ka-2. The pestle was marked as Ex.1 while the chain was marked as Ex.2. 20. P.W.5 is Gopal Dass who has not supported the prosecution case and was declared hostile. 11 21. P.W.6 is Ramesh Chand who too has not supported the prosecution case and was also declared hostile. 22. P.W.10 is Ramanand who too has not supported the prosecution case and was also declared hostile. 23. P.W.11 Patwari Kunwar Singh Negi, I.O. of the case who stated that on 23.4.1996 he was posted as Patwari in Patwari Circle Chhijjar and on that day Kalyan Singh gave the report of this case on the basis of which he prepared the Chik FIR, i.e. Ex.Ka-6. He also prepared the site plan of the place of occurrence, i.e. Ex.Ka-7. He also recovered the bloodstained jacket of injured Ganesh and prepared Fard, i.e. Ex.Ka-8. He also got recovered a pestle as well as chain of cycle which was used in the aforesaid crime and took the same into possession and prepared Fard, i.e. Ex.Ka-2. Pestle was marked as Ex.1 while the chain was marked as Ex.2. Site plan of the place of recovery of above- said articles was also prepared, i.e. Ex.Ka-9. During investigation, he recorded the statements of the witnesses and on completion of investigation, he filed the charge sheet against the respondents-accused, i.e. Ex.Ka-10. 24. After that the statements of the respondents/ accused were recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to each of them in question form, who denied the allegations made against each of them and stated that they have falsely 12 been falsely implicated. However, they did not produce any oral or documentary evidence in defence. 25. Sri Nandan Arya, learned AGA for the State argued that the prosecution has been completely successful in proving its case against the respondents- accused and the court below has erred in acquitting the respondents for the offences under which they were charged. On the contrary, Sri Rajesh Sharma, Adv. appearing on behalf of the respondents argued that as per the above-said evidence the prosecution could not prove its case against the respondent-accused beyond reasonable doubt. After a detailed discussion as above-said, we do not find any force in the argument advanced by the counsel for the respondents and we are in full agreement with the arguments put forth by the learned AGA for the reasons to be assigned hereunder: - A. That the P.W.1 Chatru, who is the eyewitness of the case, has stated has that on 22.4.1996 when he had gone in the marriage at village Harar along with his companions in their DERA, there respondents-accused Banshi Lal, Bhajan Lal, Ramaiya (Ram Chander), Indru, Pam Chand, Kaatkoo and Mani Ram also came at about 12:00 A.M. in the night and asked to dance and sing. He and his companions refused for the same as they did not know to sing and dance. All the respondents-accused were under the state of intoxication and due to his refusal to sing and dance, some hot altercation took 13 place between them. Respondent-accused Kaatkoo gave a slap on his face and the accused persons went away while threatening them that they will be seen in the morning. On the next day at about 9:00 A.M., Khitabu and Saanjiya (P.W.2) came to them to invite on tea on which they (this witness along with Kalyan Singh and Ganesh) started to move. On the way near the house of Chandru, the accused persons met them. Respondent-accused Bhajan Lal @ Bhajnu was armed with pestle (MOOSAL) and respondent-accused Banshi Lal was armed with chain of cycle and rest of the respondents- accused were armed with Lathis. Soon thereafter, those respondents-accused started beating them due to which Ganesh fell down due to the injuries sustained by him and blood was also oozing out from the face and ear of Ganesh. On raising the hue and cry by him and on reaching the other persons, the respondents-accused ran away from there. The evidence of P.W.1 Chatru gets full corroboration from the evidence of P.W.3 Kalyan Singh, who is also the eyewitness of the above-said incident. B. That soon thereafter, the injured Ganesh was taken to the hospital and his injuries were examined by P.W.7 Dr. Srigopal on 23.4.1996 at 9:30 A.M. who referred him for the x-ray of skull at Doon Hospital, Dehradun. At Doon Hospital, the Technician under the supervision 14 of P.W.9 Dr. Suresh Mehta conducted the x-ray on the person of injured Ganesh on 24.4.1996 and found the fracture of Fronto Parietal Bones of skull vault. Ultimately the injured Ganesh succumbed to his injuries on 25.4.1996 at 4:30 A.M. at Doon Hospital, which were sustained by him in the aforesaid incident. On the same day i.e. on 25.4.1996 at 4:05 P.M. itself, the post- mortem on the dead body was conducted by Dr. H.G.S. Manral (PW8). C. That P.W.7 Dr. Sri Gopal, who initially examined the injured Ganesh, has stated that the injury on the person of Ganesh could be possible to be caused by pestle (MOOSAL). The injured Ganesh was referred to Doon Hospital for x-ray of his skull and at Doon Hospital. The technician under the supervision of P.W.9 Dr. Suresh Mehta conducted the x-ray on the person of injured Ganesh on 24.4.1996 and found the fracture of Fronto Parietal Bones of skull vault. At last, the injured Ganesh as a result of the injuries sustained by him in the aforesaid incident, succumbed to his injuries on 25.4.1996 at 4:30 A.M., and on 25.4.1996 itself at 4:05 P.M., the post-mortem on his dead body was conducted by Dr. H.G.S. Manral (PW8). PW8 Dr. H.G.S. Manral further stated that the injuries No.1, 2 and 3 could possibly be caused by pestle (MOOSAL) while injury no.4 could be caused by the cycle chain. In the above-said incident, the 15 pestle (MOOSAL) as well as chain of cycle was also recovered by the I.O. on 23.4.1996 itself from the bushes for which the Fard Ex.Ka-2 was also been prepared. Thus, the medical version fully corroborates the case of the prosecution. D. One of the reasons recorded by the trial court for acquitting the respondents is that P.W.8 Dr. H.G.S. Manral stated that no injury found on the body of the deceased Ganesh could be caused by the chain of cycle. It appears that the trial court has misread the evidence of PW8 Dr. H.G.S. Manral who specifically stated in his evidence that the ante-mortem Injury No.4 could be possible to cause by the chain of cycle. Even the said medical officer P.W.8 stated that the cause of death is coma and shock as a result of ante-mortem head injury. In this regard, evidence of P.W.9 Dr. Suresh Mehta is also relevant to mention here who has stated in his cross-examination that the fracture of fronto parietal bones in the body of Ganesh could come by any hard blunt object in which pestle (MOOSAL) is also included. Therefore, the medical evidence goes to fully corroborate the prosecution story. E. The next ground on which the trial court acquitted the respondents is that all the medical officers have stated that there is every possibility of sustaining the injuries by deceased by falling from a high altitude by a stony land. 16 We again find ourselves in total disagreement with this finding recorded by trial court. As per the above-said evidence, it is proved that the present case relates to direct evidence and not on the circumstantial evidence. There is direct evidence of P.W.1 Chatru and P.W.3 Kalyan Singh, who are the eyewitnesses of the case and who also fully corroborated the prosecution case, goes to show the involvement of each of the respondents-accused as well as their commission of the crime as a result of which Ganesh succumbed to his injuries. 26. Thus, in view of the above-said detailed discussion, it is proved that the respondents-accused in prosecution of the common object of committing murder of Ganesh, formed an unlawful assembly and thereby they committing rioting. Therefore, the offence punishable under Section 147 IPC is proved against each of the respondents-accused beyond reasonable doubt. 27. Further, the above-said accused persons formed an unlawful assembly knowingly and in prosecution of the common object of that assembly, accused Bhajan Lal inflicted injuries on the head of Ganesh with pestle (MOOSAL) and accused Banshi Lal caused injuries with chain of cycle and rest of the accused i.e. Mani Ram, Ram Chandra, Kaatkoo, Pam Chand and Indru also inflicted injuries to Ganesh with Lathis, as a result of which he received grievous injuries and ultimately on 25.4.1996 at 4:30 A.M. he 17 succumbed to those injuries. Therefore, each of the respondents-accused being a member of that unlawful assembly, has committed the offence punishable under Section 302 r/w Section 149 of the IPC and they are liable to convicted for the same. 28. Accordingly, for the reasons as recorded above, the judgment and order dated 8.12.1999 passed by the Addl. Sessions Judge, Dehradun in S.T. No.236/96, State Vs. Banshi Lal & others, acquitting the respondents, as above said, is set aside. Each of the respondents-accused is convicted under Section 147 IPC and also u/s 302 r/w Section 149 of the IPC. 29. Each of the respondents-accused Banshi Lal, Mani Ram, Ram Chandra, Kaatkoo, Bhajan Lal, Pam Chand @ Mam Chand and Indru is hereby convicted for the offence punishable under Section 147 IPC and each of them is sentenced to one year’s R.I. Each of the respondents-accused is further convicted u/s 302 r/w Section 149 IPC and each of them is sentenced to life imprisonment with fine of Rs.5,000/- and in default of payment of fine, six month’s further R.I. is awarded to each of them. Both the sentences shall run concurrently. 30. Copy of this order be sent to the trial court concerned for compliance forthwith. (Dharam Veer, J.) (B.C. Kandpal. J.) November 05, 2009 Rajeev Dang