HIGH COURT OF UTTARAKHAND AT NAINITAL. (Court’s order whether the case is or not approved for reporting) (Chapter VIII Rule 32 (2) (b) Description of the Case. Crl. Appeal no. 1921 2001 (Old no. 2189/1988 Dev Singh and two others. … Appellants Vs. The State. … Respondent Approved for reporting. _________________ Not approved for reporting Date of Decision 26th March, 2008. Initial of Judge. ----------------------------- Reserved Judgment HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal no. 1921 of 2001 (Old no. 2189 of 1988) 1. Dev Singh S/o Sri Lal Singh, r/o village Kotna, P.O. Mulakot Patwari Virch, Mulakot, District Pithoragarh, 2. Guman Singh S/o Sri Dev Singh, r/o village Panikot P.O. Sangon via Debisura, Patwari Virch Paniya District Pithoragarh, 3. Jagdish Singh @ Jagat Singh S/o Rattan Singh, r/o village Mulakot, P.O. Mulakot, Patwari Circle Mulakot, District Pithoragarh. -----Accused/appellants Versus The State. ------Respondent Sri Lokendra Dobhal, learned counsel for the appellants, Sri M.A. Khan, learned Brief Holder for the State. Dated: March 26, 2008 Hon’ble Dharam Veer, J. This appeal preferred u/s 374(2) of The Code of Criminal Procedure, 1973 (hereinafter referred to as the Cr.P.C.) is directed against the judgment and order dated 22nd September 1988 passed by the Sessions Judge Pithoragarh in Sessions Trial no. 5 of 1988 State vs. Dev Singh and 3 others whereby the learned Sessions Judge has convicted the accused/appellants Dev Singh, Guman Singh and Jagdish Singh for the offence punishable u/s 307 read with Section 34 of The Indian Penal Code, 1860 (hereinafter referred to as the I.P.C.) and awarded sentence to each of them to undergo rigorous imprisonment for a period of 6 years’ and the accused/appellants have been further convicted for the offence punishable u/s 326 read with Section 34 I.P.C. and has awarded sentence to each of them to undergo rigorous imprisonment for a period of 1 year. It was further directed that both the sentences shall run concurrently. The co accused Smt. Saruli Devi has been acquitted by the Trial Court. 2. The prosecution case, in brief, is that on 14.03.1984 at about 11 p.m. when the injured- complainant Umed Singh was going to his house alongwith his wife Smt. Panuli Devi after participating in Holi festival and when they reached in the upper side of a field which is situated towards upper side of a culvert (Khola), then all the accused/ appellants Dev Singh, Guman Singh, Jagdish Singh, alongwith the co- accused Smt. Saruli Devi, who has been acquitted by the Trial Court, had surrounded the complainant Umed Singh and his wife and the accused Dev Singh had inflicted injuries to Umed Singh with a KHUKARI. At that time all the accused persons were having KHUKARIES in their hands and they have inflicted injuries to Umed Singh with KHUKARIES. On this; complainant’s wife made noise and on hearing her screams residents of the village reached on the place of occurrence and they brought the injured in unconsciousness state in his house and on the next day i.e. on 15.03.1984 the injured was taken to the hospital at Champawat where he was admitted. With the medical report the injured Umed Singh submitted the written report Ext. Ka-3 to the Sub Divisional Magistrate, Lohaghat on 16.03.1984 and on receiving the written report the Sub Divisional Magistrate, Lohaghat forwarded the same to the Nayab Tehsildar, Champawat for taking necessary action in the matter and the Nayab Tehsildar instructed the concerned Patti Patwari to lodge the First Information Report. On the basis of the written report Ext. Ka- 3, the Patti Patwari- Mulakot Sri Ishwari Dutt Joshi P.W.5 had prepared the Chik First Information Report Ext. Ka-5 on 16.03.1994 at 2:00 p.m. 3. The injured Umed Singh was medically examined by the Medical Officer P.W.3 Dr. P.K. Karnataka on 15.03.1984 at about 3:15 p.m. at Primary Health Centre, Champawat and prepared the injury report Ext. Ka-1. Lateron X-Ray of the injured was also conducted; the X-Ray plate is Ext.- 1 on the record. The X-Ray report which was prepared by the Medical Officer P.W.3 Dr. P.K. Karnataka on 16.07.1984 is Ext. Ka-2 on the record. 4. The investigation of the case was entrusted to P.W.5 Sri Ishwari Dutt Joshi, Patti Patwari who has investigated the case. The Investigating Officer during the course of investigation has taken in his possession the clothing of the injured i.e. shirt, trouser, underwear and sleeveless undershirt, which wore by the injured at the time of the incident and a recovery memo Ext. Ka-4 was prepared in the presence of Hayat Singh and Inder Singh on 17.03.1984 and the clothing were kept in sealed. During the investigation the I.O. has taken in his possession the plain clay and bloodstained clay from the place of occurrence in the presence of Bahadur Singh and Khushal Singh and prepared a memo on 19.03.1984 with is Ext. Ka-8 on the record. The I.O., after making inspection of the spot in the presence of Bahadur Singh and Khushal Singh had prepared a FARD on 19.03.1984, which is Ext. Ka-7 on the record. The Investigation Officer has also prepared site-plan of the place of occurrence on 19.03.1984, which is Ext. Ka-6 on the record. During the course of the investigation the Investigation Officer has recorded the statements of the injured Umed Singh and eyewitness Smt. Panuli Devi w/o Umed Singh and other witnesses. After completing the investigation, the Investigation Officer filed charge sheet against the accused/appellants alongwtih co-accused Saruli Devi u/s 307 I.P.C. on 16.07.1984 The charge sheet is Ext. Ka-9 on the record. 5. Learned Munsif Magistrate, Pithoragarh on receipt of the charge sheet, after giving necessary copies to the accused persons as required u/s 207 Cr.P.C., committed the case to the Court of Sessions for trial on 10.02.1988 u/s 209 Cr.P.C. 6. Learned Sessions Judge, Pithoragarh after hearing the parties on 22.04.1988 framed the charge of offence punishable u/s 307 read with Section 34 I.P.C. against the accused persons Dev Singh, Guman Singh, Jagdish Singh and Smt. Saruli Devi. The charge was read over and explained to the accused persons who pleaded not guilty and claimed to be tried. And on 17th May 1988, after hearing the parties, the accused persons were further charged for the offence punishable u/s 307 read with Section 34 I.P.C. and u/s 326 read with Section 34 I.P.C. The charge was read over and explained to the accused persons who pleaded not guilty and claimed to be tried. 7. The prosecution, to prove its case, has examined P.W. 1 Smt. Panuli Devi w/o Umed Singh, the eye- witness, P.W. 2 Hayat Singh- the circumstantial witness, P.W.3 Dr. P.K. Karnataka Medical Officer who conducted medical of the injured, P.W.4 Umed Singh, the injured and P.W.5 Sri Ishwari Dutt Joshi. Patti Patwari and Investigating Officer of the case. 8. The oral and documentary evidence was put to the accused persons in the form of questions who, in reply, denied the allegations made against them and have stated that they have been falsely implicated in the case due to the enmity. The accused persons did not produced any evidence in their defence. 9. After appreciating all the evidence available on record and hearing the learned counsel for the parties, the learned Sessions Judge convicted the accused/appellants Dev Singh, Guman Singh and Jagdish Singh for the offence punishable u/s 307 read with Section 34 I.P.C. and has awarded sentence to each of them to undergo rigorous imprisonment for a period of 6 years’ and the accused/appellants were further convicted for the offence punishable u/s 326 read with Section 34 I.P.C. and sentenced each of them to undergo rigorous imprisonment for a period of 1 year. It was further directed that both the sentences shall run concurrently. The co-accused Smt. Saruli Devi has been acquitted by the Trial Court. Aggrieved with the impugned judgment and order the accused/appellants have preferred the present appeal. 10. I have heard Sri Lokendra Dobhal, learned counsel for the accused/appellants and Sri M.A. Khan, learned Brief Holder for the State. 11. Before further discussion, it is pertinent to mention the injuries found in the person of the injured Umed Singh. Medical examination of the injured Umed Singh was conducted by P.W. 3 Dr. P.K. Karnataka on 15.03.1984 at 3:15 p.m. at Primary Health Centre, Champawat who prepared the medical report, which is Ext. Ka-1 on the record. The following injuries were found on the body of the injured Umed Singh:- 1. Incised wound, 7cm in size, depth muscle (tricept lat. head), margins are sharply defined and is bleeding freshly at the left upper arm at lateral aspect, running transversely 15cm. above the olecranon; 2. Incised wound 4.5 cm. muscle deep 3 cm. below the wound no. (1) bleeding freshly margins sharply defined, running transversely; 3. Incised wound of 2 cm. skin deep, running transversely; 4. Incised wound of 2 cm. at lateral aspect of left upper arm 6.5 cm. above lateral humeral epicondyle muscle deep, bleeding freshly; 5. 3 cm. incised wound posterio lateral aspect left upper arm 3 cm. above lateral humeral epicondyle, muscle deep, bleeding freshly (oblique); 6. Incised wound, bone deep, 6.5 cm. size at posterior aspect of left elbow bleeding freshly; 7. Incised wound of 5.5 cm. at the posterior aspect of left forearm, muscle deep’ bleeding freshly; 8. Incised wound of 5cm. left lower forearm 4cm. above the wrist joint, at the radial side, muscle deep, bleeding freshly; 9. Incised wound of 6.5 cm. at left lower forearm, dorsal aspect, 1.5 cm. above wrist joint, bone deep, bleeding fresh; 10. Incised wound running obliquely over the left patella, skin deep, size 4.5cm.; 11. 2 cm. incised wound at the lower border of left tibial tuberosity, muscle deep; 12. Incised wound of 4.5 cm. at right leg anterior aspect 2 cm. below the lower border of tibial tuberosity, bone deep, bleeding freshly, defused local oedema present; 13. Incised wound 2.5 cm. at the lateral aspect of left upper arm 7 cm. above right lateral humeral epicondyle, muscle deep, bleeding freshly; 14.Incised wound 3 cm. size at lateral aspect of right upper arm. 11cm. above the olecranon, bleeding freshly, muscle deep; 15.Incised wound 3.5 cm. size, dorsal aspect of the right forearm 8.5 cm. below olecranon, muscle deep, bleeding freshly; 16.Incised wound 3.5 cm. size, muscle deep, left posterior aspect of back, running obliquely at the level of lower border of scapula, bleeding freshly; 17.Incised wound of 4cm., bone deep, at the level of L- 2 vertebrae, running obliquely exposing spinal cord, bleeding profusely and freshly; 18. Incised wound of 4.5 cm. at left lower back 3cm. lateral left to specious processing at the (sic) region, muscle deep, bleeding freshly. 12. The Medical Officer, PW-3 Dr. P.K. Karnataka has opined that the injuries were caused by sharp weapon i.e. KHUKARIES. It is further opined that the injuries were grievous in nature and duration was less than 24 hrs. The injuries could have been caused on 14th March 1984 at 11:00 p.m. The Medical Officer advised for the X-Ray in his medical report Ext. Ka-1. The X-Ray of the injured was done on 27.03.1984. The X-Ray plate is Ext.-1. 13. In the X-Ray report prepared by the Medical Officer on 16.07.1984 the right upper leg and middle leg of the injured, was found obliquely fractured at the upper & middle Tibia right portion, the X-Ray report is Ext. Ka-2 on the record. 14. The prosecution to prove its case, first of all, has examined P.W.1 Smt. Panuli Devi W/o Umed Singh, the eyewitness, Her statement was recorded in the Court on 16.05.1988. She has stated that the accused persons Dev Singh, Guman Singh, Jagat Singh alias Jagdish Singh and Saruli Devi who is mother-in-law of accused Dev Singh are known to her. Sister of accused Dev Singh is married to Guman Singh. Accused Jagat Singh is the real brother of accused Saruli Devi. The incident was of 4 years’ 2 months’ before and it was the time of Holi festival. At 8:00 pm. after taking meal, she herself and her husband Umed Singh had gone to see the Holi being celebrated at night in the house of Chinta Singh. The Holi was concluded at 11:00 p.m. and thereafter she and her husband had returned to their house. There is a culvert (Khola) in the upper side of the house of Chinta Singh and towards the upper side of the culvert there lies a field and crop of wheat was grown up there in the filed. There is a way in that field towards her home. When she alongwith her husband reached in the field the accused persons Dev Singh, Guman Singh, Jagdish Singh and Saruli Devi have ambushed there and as soon as the couple reached in the field the accused Dev Singh had inflicted injury to her husband with a KHUKARI. The other accused persons Guman Singh and Jagdish Singh had also started inflicting blows of the KHUKARI to her husband. The accused Saruli Devi had started inflicting injuries to her husband with a sickle. She screamed and had gone to the house of P.W.2 Hayat Singh and knocked his door and told him that the accused Dev Singh, Guman Singh, Jagdish Singh and Saruli Devi had chopped her husband. She has further stated that after reaching at her house she made screams that her husband is killed. Thereafter again she reached at the field where she did not find the accused persons. The persons, namely, Hayat Singh, Diwan Singh, Jodh Singh and another Dev Singh took her husband at home. There were injuries in all over the body of the husband and blood was oozing out. His condition was critical. It is further stated that Hayat Singh had gone to inform the Patwari in the night who after returning had told that the Patwari was not present in the Headquarter. In the next morning the villagers took her husband to hospital at Champawat. She had recognized the accused persons as also the weapons used in the crime by the accused persons in the moon light. This witness has been cross examined by the defence counsel at length; but nothing has come out in her cross examination which may create doubt in her statements. The evidence of this witness on each and every aspect is reliable, believable and trustworthy. 15. P.W.2 is Sri Hayat Singh whose statement were recorded in the court on 16.05.1988. This witness has stated that the accused persons Dev Singh, Jagat Singh alias Jagdish Singh and Guman Singh, present in the court are known to him. Smt. Saruli Devi, who is not present in the court, is also known to him. Accused Dev Singh is his cousin brother. Accused Saruli Devi is the mother-in-law of accused Dev Singh. Sister of the accused Dev Singh is married to accused Guman Singh and the accused Jagat Singh is the real brother of accused Saruli Devi. It was the event of 14th March 1984; when the Holi festival was going on. He was asleep in his house. The Holi was being celebrated in the village in the house of Chinta Singh, but he was slept in his house. In the night at about 11:00 p.m. Smt. Panuli Devi W/o Umed Singh knocked his door and told that the accused persons are beating her husband. On this; he inquired the names of the assailants from her and she told that the assailants Dev Singh, Guman Singh, Jagdish Singh and Saruli Devi are beating to her husband with KHUKARIES and Sickle, then he reached to the field of wheat situated to the upper side of the culvert i.e. the place of occurrence. In the field he did not find Umed Singh but the injured was found 5 to 6 arm-measure below the said field who had been laid down in injured condition. Blood was oozing out. When all the person acquainted about the incident, then the residents of the village i.e. another Dev Singh, Jodh Singh and his son Diwan Singh, in all four persons; reached there. When he reached on the place of occurrence, he did not find the accused persons there. Even he did not saw the accused persons. The injured Umed Singh and his wife had told the names of the assailants. They took the injured to his home. He was not in a condition to survive. It is further stated that in the very night he went to inform the Patwari Mulakot who was not there, therefore he returned back. On the next day the injured was taken to the hospital at Champawat from the village; firstly on a cot; and then from Regal Band to Champawat in a vehicle. This witness has been cross examined by the defence counsel at length; but nothing has come out in his cross examination which may create doubt in his statements. 16. P.W.3 is Dr. P.K. Karnataka, Surgeon who has conducted the medical examination of the injured Umed Singh. This witness has stated that on 15.03.1984 he was posted as Surgeon at Primary Health Centre, Champawat. On that day at about 3:15 p.m. he examined medically the injured Umed Singh and found the injury nos. 1 to 18 mentioned in para-11 of the above and prepared the medical report Ext. Ka- 1. The X-Ray of the injured was taken by the Technician on 27.03.1984 and the X-Ray plate is Ext.1 on the record. On the basis of the X-Ray he prepared X- Ray report which is Ext. Ka-2 on the record. 17. P.W.4 is the injured-complainant Umed Singh whose statements were recorded on 29.06.1988 in the Trial Court. This witness has stated that he is known to the accused persons. He has stated that accused Dev Singh and Guman Singh are present in the court and the accused persons Jagdish Singh @ Jagat Singh and Saruli Devi are absent today in the court. Accused Saruli Devi is the mother-in-law of accused Dev Singh. Sister of the accused Dev Singh is married to accused Guman Singh. The accused Jagdish Singh is the brother of accused Saruli Devi. The incident was of 4 years 3 ½ months before. It was the Holi festival. In the night at 8:00 p.m., after taking meal, he alongwith his wife had gone to see Holi which was being celebrated in the house of Chinta Singh. The Holi was concluded at about 11:00 p.m. Mostly 5-4 persons remained there and the rest had gone from there. He and his wife have also departed. Nobody was there accompanied to them towards the way of their home. He and his wife had reached in the field to the upper side of the culvert (Khola) which is located to the upper side of the house of Chinta Singh. At that time the crop of wheat was grown up in the field. It is stated by this witness that the accused persons Dev Singh, Guman Singh, Jagdish Singh and Smt. Saruli Devi were ambushing in the field and on reaching of the complainant and his wife at the field all the accused had appeared there and surrounded them. Accused Dev Singh and attacked on his back with KHUKARI, on this when they started to flee then the accused persons Dev Singh, Guman Singh and Jagat Singh had inflicted injuries to them with their KHUKARIES and the accused Saruli Devi had caused injuries with a Sickle. The said KHUKARIES and Sickle were already in their possession. As soon as the accused persons have attacked, his wife screamed and ran towards her home. The house of Hayat Singh falls before their house. When the accused persons have attacked then he made screams. Initially he tried to flee, but could not be succeeded. After his wife had gone, the assailants took him about 6-7 steps downwards in the similar field, after inflicting injuries to him. Listening the noise of the villagers, the assailants fled away from the place of occurrence. The witness Hayat Singh, another Dev Singh S/o Man Singh, Jodh Singh, Diwan Singh and his wife came at the place of occurrence. His wife was in search of him and he was not in position to express any word. Then the said persons who reached there took him to his home. He drunk water at his home. Hayat Singh went to the Patwari in the night, but he did not find the Patwari there. On the next day the villagers took him to Champawat and admitted him in the hospital. He was medically examined. In the hospital a petition writer was called for to scribe the report and the report was written by him. Whatever he told, the same was written by the petitioner writer and after the report was scribed, the same was read over before him and he put his signatures on the report. After hearing the written report in the court he said that the report is the same. He identified his signature on the report Ext. Ka-3. The report was sent to the Sub Divisional Magistrate, Lohaghat through Inder Singh. This witness has further deposed that on 17.03.1984 the Patwari had approached to him at hospital and had inquired to him. The clothing, i.e. the shirt, trouser, underwear and a sleeveless undershirt, which he wore at the time of the incident and were bloodstained as well as torn with the blows of the weapons, were taken in his possession by the Patwari and kept them in a sealed cover. Recovery memo was prepared in this regard and he put his signatures on it. Listening the FARD Ext. Ka. 4 he told that this was the same. He identified his signature on it. A sealed bundle was opened in the court and mark of material exhibits in the shirt is Ext.-2, in Trouser Ext.-3, in Underwear Ext.- 4, and in Undershirt Ext.-5. Those were the same clothes which wore by him at the time of the incident. Accused Dev Singh is his cousin. Dev Singh feels enmity with him but he did not feel any enmity with Dev Singh. The accused had the intention to kill him by inflicting the injuries and after giving the blows of the weapons they were firm about his death and then they left the place. This witness has been cross examined by the defence counsel at length; but nothing has come out in his cross examination which may create doubt in his statements. The evidence of this witness is reliable, believable and trustworthy. 18. P.W.-5 is Sri Ishwari Dutt- Patwari and Investigating Officer of the case. He has stated that on 16th March 1984 he was posted as Patwari Mulakot. The written report Ext. Ka-3 was received to him on 16.3.1984 at Lohaghat and on the basis of the written report he prepared the Chik report Ext. Ka-5 which is in his handwriting and under his signature. After preparation of the Chik; he conducted investigation in the case. During the investigation he recorded the statement of Inder Singh who had brought the written report. On 17.03.1984 in the morning he went in the hospital at Chamawat where the injured Umed was admitted and had taken in his possession the bloodstained clothes of the injured and a recovery memo Ext. Ka-4 in this regard was prepared. After departing on 18.03.1984, he reached on 19.03.1984 on the place of incident and after making spot inspection in the presence of the witnesses; he prepared the site-plan Ext. Ka-6. A FARD in regard to the site was also prepared, which is Ext. Ka-7 on the record. During the investigation the Investigating Officer had also taken in his possession the bloodstained clay and plane clay from the place of occurrence and a recovery memo Ext. Ka-8 was prepared which is in his handwriting and under his signature. On 19.03.1984 he recorded the statement of Panuli Devi and inquired in the village. On 25.03.1984, he arrested the accused Saruli Devi and Dev Singh and on 04.06.1984 he arrested Saruli Devi and Dev Singh