HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.94 OF 2006 (OLD NO.1650/1997) Ramesh Lal & three others .……….. Appellants Versus State of Uttarakhand ..…….. Respondent Dated: October 5, 2009 Mr. R.P. Nautiyal, Advocate for the appellants Mr. Nandan Arya, AGA for the State Hon’ble 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 12.9.1997 passed by Sessions Judge, Chamoli in S.T. No.9/1996, State Vs. Ramesh Lal & others, whereby the learned Sessions Judge convicted the accused/appellants, namely, Ramesh Lal, Chanki Lal, Bansi Lal, Chandri Lal and Kanwaliya alias Beer Bahadur under Sections 147, 325/149 and 506 Part-II of The Indian Penal Code, 1860 (hereinafter to be referred as the IPC). Accused/appellant Ramesh Lal, Chanki Lal, Bansi Lal and Chandri Lal were given benefit of the provisions of Sections 4 and 5 of Probation of Offenders Act and they were directed to release if they execute a personal bond of Rs.5,000/- with two sureties each of the like amount to this effect that they shall maintain peace and be of good behaviour for a period of two years and shall appear before the court whenever summoned by the court during this period to receive the sentence. They were also ordered u/s 5 of the Probation of Offenders Act to pay a sum of Rs.1,000/- each to the complainant Baisakhu Lal as compensation within a period 2 of one month from the date of order, failing which the amount was directed to be realize from them as fine. 2. I have heard Mr. R.P. Nautiyal, Advocate for the appellants as well as Mr. Nandan Arya, AGA for the State. Perused the entire material available on record. 3. In brief, the prosecution case is that on 23.5.1995 PW1 Baisakhu Lal moved an application before the Chief Judicial Magistrate, Chamoli u/s 156(3) Cr.P.C. with the averments that the complainant and the accused/appellants Chandri Lal, Ramesh Lal, Banshi Lal and Chunki Lal are the residents of the same village and the co-accused Sanwaliya and Kanwaliya are Nepalis and resides with the accused/appellant Banshi Lal and also works with him. It was alleged that from a long time there is land dispute between the complainant and the accused/appellants Chandri Lal, Ramesh Lal, Banshi Lal and Chunki Lal and in respect of this dispute, a revenue suit between the above- said accused persons and the complainant’s mother is pending in the court of S.D.M., Tharali. There is enmity between the families of the complainant and the aforesaid accused persons on account of this litigation. It was further stated that on 20.5.1995 at about 8:00 AM the complainant along with his younger brother Birendra Lal was coming from his Gaushala situated at Naitoli Forest. They were carrying wood on their shoulders. When they reached near the Gaushala of the accused/appellant Banshi Lal, all the accused persons with common intention attacked on them. They were armed with axe, Farsi, Lathi, Saria and pipe. Accused/appellant Ramesh Lal caused injuries on the head of Birendra Lal. His brother fell down and then the accused/appellant Chandri Lal gave several blows on the back of Birendra Lal from the reverse side of Kulhari. 3 Remaining accused persons also started assaulting his brother with Lathi, iron rod (SARIA) and pipe. On this, the complainant raised alarm. Hearing the noise, his younger brother Sukhdev Lal reached at the spot and he also started shouting for help. Then the mother of the complainant reached there. Meanwhile, accused/appellant Chandri Lal caused injuries on the back of complainant from the reverse side of Kulhari. Lata Ram and some other persons reached there. Then the accused persons giving threat to their life ran away from the place of occurrence. It was further alleged that the accused persons wanted to kill the complainant and his brother. Thereafter complainant’s mother and other persons took the complainant and his brother to the house. Due to serious condition of Birendra Lal, he was carried to the hospital at Narayan Bagarh and thereafter to District Hospital, Gopeshwar, where he and his brother were admitted. When the complainant recovered a bit, he went to lodge the report at Police Station, Gopeshwar but the Police told him that the matter pertains to Patwari Circle. Next day the complainant went to Patwari Chowki but the Patwari was not available. On 22.5.1995, the complainant again came to Gopeshwar and reached court but could not file the complaint because of reaching late. Thereafter on 23.5.1995 the complainant moved the application before C.J.M., Chamoli. That application is Ext.Ka-1. On the said application, C.J.M., Chamoli directed Naib Tehsildar, Tharali to register and investigate the matter. On this direction, Patwari Panti prepared the Chik FIR of the case, which is Ext.Ka-7. Necessary entries were also made in the G.D., copy of which is Ext.Ka-8. Injured Birendra Lal and Baisakhu Lal were medically examined by Medical Officer, who prepared the injury reports Ext.Ka-5 and Ext.Ka-6. X-ray of Birendra Lal was conducted by PW4 Dr. Lalti Chandra Punetha and the X-ray report is Ext.Ka-4. During the course of 4 investigation, the Investigating Officer/Patwari inspected the place of occurrence and prepared the site-plan i.e. Ext.Ka-9; took into possession the blood stained clothes of Baisakhu Lal and Birendra Lal and prepared the Fards Ext.Ka-2 and Ext.Ka-3, respectively and also recovered the weapons used in the said crime vide Fard i.e. Ext.Ka-10. During the course of investigation, the I.O. also recorded the statements of the witnesses and after completing the investigation, he submitted the charge sheet against the accused/appellants i.e. Ext.Ka-11. 4. Learned Chief Judicial Magistrate, Karnprayag, Chamoli, on receipt of charge sheet, committed the case to the court of Sessions on 22.2.1996, after giving necessary copies to the accused/appellants as prescribed u/s 207 Cr.P.C. 5. On 28.5.1996, learned Sessions Judge, Chamoli (Gopeshwar) framed the charges u/Ss 148, 307/149 and 506 Part II of IPC against the accused/appellants Ramesh Lal, Chandri Lal, Bansi Lal, Chanki Lal and co-accused Beer Bahadur alias Kanwalya. The charge was read over and explained to each of the accused/appellants and co-accused, to which they pleaded not guilty and claimed to be tried. 6. In order to prove its case, the prosecution examined PW1 Baisakhu Lal, complainant and injured eyewitness; PW2 Birendra Lal, injured eyewitness; PW3 Lata Ram, eyewitness; PW4 Dr. Lalit Chandra Punetha, who conducted the X-ray of Birendra Lal and prepared the X-ray report Ext.Ka-4; PW5 Moti Lal, eyewitness; PW6 Smt. Bhaga Devi, eyewitness and PW7 Kishan Giri, Investigating Officer of the case. 5 7. Thereafter the statements of the accused/appellants and co-accused were recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to each of them in question form, who have denied the allegations made against them. In defence, they have filed copy of the FIR and the injury report of Chandri Lal. 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 12.9.1997 convicted and sentenced the accused/appellants Ramesh Lal, Chanki Lal, Bansi Lal, Chandri Lal and co- accused Kanwaliya alias Beer Bahadur as stated above. Against the said judgment and order, the accused/appellants have preferred this appeal. 9. Before any further discussion, it would be pertinent to mention the injuries found on the person of Birendra Lal (PW2), who was medically examined by Medical Officer on 20.5.1995 at 7:15 PM and who also prepared injury report Ext.Ka-5, which reads as under:- (i) Lacerated wound skull 5cm x 1.5cm x 1.5cm bone deep at left temporoparietal region, fresh bleeding present. (ii) Abrasion on right knee about 1cm x 1cm surrounded by contusion 5cm x 3cm. (iii) Abrasion on right skin of tibia 1cm x 1cm (iv) Pain and tenderness of right side of chest. Opinion:- All injuries are simple except no.1 and 4 caused by hard blunt object about 12 hours in duration. Injury nos.1 and 4 kept under observation, advised X-ray skull, AP, lateral and X-ray of chest PA. 6 10. Injured Baisakhu Lal was also medically examined by the medical officer on 20.5.1995 at 7:15 PM. Injury report of Baisakhu Lal is Ext.Ka-6, which reads as under:- (i) Abrasion on upper margin of right eyebrow 3.5cm x 1 cm. (ii) Abrasion on right maxillary region about 2.5 cm x 2.5 cm. (iii) Swelling on left upper knee. Opinion:- All injuries are simple, caused by hard blunt object, about 12 hours in duration. 11. X-ray of PW2 Birendra Lal was conducted by Dr. Lalit Chandra Punetha (PW4) and who also prepared the X- ray report Ext.Ka-4, which is reproduced below:- “X-ray skull-AP, lateral NAD X-ray chest AP view shows # of 6th and 7th rib of right chest. Hence injury no.4 is grievous.” 12. To prove the above-noted injury reports and X-ray report, the prosecution examined PW4 Dr. Lalit Chandra Punetha, who stated that on 21.5.1995 he was posted as Surgeon Radiologist at District Hospital, Gopeshwar. On that day, he conducted the X-ray of Birendra Lal and prepared the X-ray report Ext.Ka-4. He further stated that the injuries of Birendra Lal and Baisakhu Lal were examined by Dr. Ashok Kumar who was posted in the same hospital. He further stated that on 23.5.1995 on the basis of medical, he gave the medical certificates to Birendra Lal and Baisakhu Lal. He has proved the injury reports Ext.Ka-5 and Ka-6. 13. To prove its case further, the prosecution examined PW1 Baisakhu Lal who has reiterated the entire story as set out in the application Ext.Ka-1. He further stated that he had given his Kurta Ext.1 and bloodstained 7 shirt Ext.2 and under shirt Ext.3 of injured Birendra Lal to the Investigating Officer. He has proved the Fards Ext.Ka-2 and Ka-3. He has also identified the axe Ext.4, iron rod Ext.5 and Danda Ext.6 used by the accused/appellants in the said crime. 14. PW2 Birendra Lal who is another injured eyewitness of the case has corroborated the statements of PW1 Baisakhu Lal. 15. PW3 Lata Ram, PW5 Moti Lal and PW6 Smt. Bhaga Devi have also corroborated the statements of PW1 Baisakhu Lal. 16. PW7 Kishan Giri is the I.O. of the case, who has stated that on 28.5.1995 he was Patwari, Panti Circle, Tehsil Tharali. On that day he received the application Ext.Ka-1 by post, on the basis of which he prepared the Chik FIR Ext.Ka- 7. Necessary entries were also made by him in the G.D., copy of which is Ext.Ka-8. During the course of investigation, he recorded the statements of the witnesses, inspected the place of occurrence and prepared the site-plan Ext.Ka-9, took into possession clothes of injured Birendra Lal and Baisakhu Lal and prepared the Fards Ext.Ka-2 and Ka-3. He also prepared the Fard Ext.Ka-10 of taking into possession the weapons used in the said crime. After completing the investigation, he submitted the charge sheet Ext.Ka-11 against the accused/appellants. 17. Thereafter the statements of the accused/appellants and co-accused were recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to each of them in question form, who have denied the allegations made against them. In defence, they have filed copy of the FIR and the injury report of Chandri Lal. 8 18. Mr. R.P. Nautiyal, learned counsel for the accused/appellants submitted that the prosecution has not proved the case against the accused/appellants beyond reasonable doubt. I do not find force in the submission of learned counsel for the accused/appellants. As per the evidence of PW1 Baisakhu Lal on the date of incident i.e. on 20.5.1995 at about 8:00 AM, Baisakhu Lal (PW1) along with his younger brother Birendra Lal was coming from his Gaushala. They were carrying wood on their shoulders. When they reached near the Gaushala of the accused/appellant Banshi Lal, all the accused persons armed with axe, farsi, lathi, saria and pipe, surrounded him and his brother. Accused/appellant Ramesh Lal caused injuries to his brother Birendra Lal by axe. Thereafter accused/appellant Chandri Lal gave several blows on the back of Birendra Lal from the reverse side of axe. It was also stated that the accused/appellant Chandri Lal caused injuries to him from the reverse side of Kulhari. His mother and one Lata Ram reached at the place of occurrence. After that the accused persons, giving threat to life, ran away from the place of occurrence. Due to the injuries, his brother Birendra Lal had fallen down and had become unconscious. Thereafter he and his brother were brought to their house by some persons. Due to serious condition, Birendra Lal was taken to the hospital at Narayan Bagarh and thereafter to District Hospital, Gopeshwar, where they were admitted. Thereafter he went to lodge the report at Police Station, Gopeshwar but the Police told that the matter pertains to Patwari Circle. Next day the complainant went to Patwari Chowki but the Patwari was not available. On 22.5.1995, the complainant again went to Gopeshwar and reached court but he could not file the complaint because of reaching late. Thereafter on 23.5.1995 the complainant moved the application (Ext.Ka-1) before C.J.M., Chamoli. The statement 9 of this witness finds full support from the statements of PW2 Birendra Lal, PW3 Lata Ram, PW5 Moti Ram and PW6 Smt. Bhaga Devi. Besides this, his evidence further gets corroborated from the medical reports viz. Ext.Ka-5 and Ka-6 as well as from the X-ray report Ext.Ka-4. As such, in view of the aforesaid discussion, I am of the considered opinion that on 20.5.1995 the accused/appellants with common intention attacked on Baisakhu Lal and Birendra Lal and caused injuries to both of them with axe, farsi, lathi, saria and pipe and thereby committed offence punishable u/Ss 147, 325/149 and 506 Part-II IPC. The prosecution has been successful in proving the case against the accused/appellants under the aforesaid sections and the judgment and order of the court below, in view of the above narrated facts and circumstances of the case, is justified and correct and requires no interference. 19. For the reasons recorded above, the appeal is devoid of merit and is hereby dismissed. The judgment and order dated 12.9.1997 passed by Sessions Judge, Chamoli in S.T. No.9/1996, State Vs. Ramesh Lal & others, is hereby confirmed. 20. Let the lower court record be sent back. (Dharam Veer, J.) 05.10.2009 RG