Judgment reserved IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 1645 of 2001 Old Number Criminal Appeal No. 1906 of 1996 Ratan and another. …………..Appellants. Versus State …….Respondents. AND Criminal Appeal No. 1647 of 2001 Old Number Criminal Appeal No. 1895 of 1996 Kunwar Pal and others. …………..Appellants. Versus State …….Respondents. Present: Mr. M.S. Pal, Sr. Advocate assisted by Mr. Tarun Takuli, Mr. M.K. Goyal, learned counsel for the appellants. Mr. S.S. Adhikari, learned AGA for the State. Coram Hon’ble B.C. Kandpal, J Hon’ble Nirmal Yadav, J. (Per Hon’ble Nirmal Yadav, J). The above two appeals, arising out of judgment and order dated 28.09.1996 passed by Sessions Judge, Nainital, were taken up together for hearing and are being disposed of by this common judgment. All the five accused stood trial for the offences punishable under sections 147, 148, 302 IPC. Learned Sessions Judge, Nainital after taking into consideration the 2 facts and circumstances of the case, convicted the accused/appellant - Ratan under sections 148, 302 IPC and the remaining accused/appellants Kunwar Pal, Radhey Shyam, Udal, Nawal Kishore under sections 147, 302 read with 149 IPC. Accused/appellant Ratan was sentenced to undergo rigorous imprisonment for life under section 302 IPC and was further sentenced to undergo rigorous imprisonment for two years under section 148 IPC. Both these sentences have been ordered to run concurrently. Accused / appellants Kunwar Pal, Radhey Shyam, Udal and Nawal Kishore have been sentenced to undergo rigorous imprisonment for life under section 302 read with section 149 IPC and have been further sentenced to undergo rigorous imprisonment for one year under section 147 IPC. Both these sentences have been ordered to run concurrently. The prosecution case is unfolded from the statement of PW1 - Babu Ram, husband of the deceased – Kaila, when he reported the matter vide written complaint exhibit Ka 1. Babu Ram along with his wife and young daughters was living in village – Sultanpatti. His house did not have any boundary wall. Accused – Ratan, Kunwar Pal, Radhey Shyam, Udal, Nawal Kishore and other boys of Haldiya community had been often doing obscene acts and uttering obscene words towards his daughters. On this account, his wife Smt. Kaila (deceased) objected many times and told them not to do such actions, which resulted into altercation between them. On 30.06.1992 at about 8 p.m. all the five accused mentioned above were standing in front of the courtyard of the complainant. His daughters – Kalpana and Sangeeta 3 asked them not to stand there, thereupon, the accused started hurling abuses. They were advised to behave themselves by Smt. Kaila (deceased), her son – Sanjay Kumar and by the complainant himself. On this, accused started pelting stones and brickbats towards the house of the complainant. On the intervention of residents of neighbouring house and on the request of the complainant, the matter subsided for a while but in the meanwhile, some ladies from the side of accused persons reached the spot and started pelting stones and brickbats. At that time, accused Ratan brought ‘patal’ from his house and gave one blow with the said ‘patal’ on the head of Smt. Kaila (deceased), who was standing near the trolley of Chandra Pal. On receiving the injury from ‘patal’, Smt. Kaila (deceased) fell down and was immediately taken to the hospital where she was declared dead. The dead body was brought back to the house. First Information Report (exhibit Ka3) with regard to the incident was lodged on 01.07.1992 in police station – Bazpur, which is at a distance of about 14 – 15 kms. from the place of occurrence and the case was registered in General Diary (exhibit Ka4). The investigation of the case was entrusted to SI N. S. Tyagi, Police Station – Kashipur, who went to the spot and prepared the inquest report (Ka7). He sent the dead body for conducting postmortem. The postmortem was conducted by Dr. S. N. Singh Chandel on 01.07.1992 at about 12.45 p.m. Postmortem report is exhibit Ka2. The Investigating Officer collected the blood stained earth and the plain earth from the spot vide memo (exhibit Ka6). He 4 also prepared site plan of the place of occurrence (exhibit Ka5). On the completion of the investigation, charge-sheet was submitted against the accused. Accused / appellant Ratan was challaned under section 302, 148 IPC while other accused / appellants were challaned under sections 147, 302 read with section 149 IPC to which they pleaded not guilty and claimed trial. To prove its case, the prosecution has examined PW1 Babu Ram and PW2 Kalpana, husband and daughter of the deceased respectively. PW3 Om Prakash scribe of the First Information Report, PW4 – Dr. S.N.Singh Chandel, conducted the postmortem. PW5 – SI N.S. Tyagi – is the Investigating Officer. Dr. S.N. Singh Chandel found following ante- mortem injuries on the body of the deceased – Smt. Kaila. i. Lacerated wound 8 cm X 3 cm X bone deep on the centre of scalp 10 cm above the root of the nose. ii. Abraded contusion 5 cm X 2.5 cm on the right side of the face over lower part of the right cheek. At the time of postmortem rigor mortis was found to be present in the limbs of the deceased. On internal examination of the body, left parietal bone and left temporal bone were found to be fractured. Membranes below the left side of half of the skull were found to be torn and congested and blood was oozing out below the membrane. The left side of the brain was filled with blood while all the four chambers of the heart were found 5 empty. The stomach contained 150 ml water and the intestines were full of gases and faecal matter. As per the opinion of doctor, cause of death is shock and haemorrhage and bleeding as a result of the injury no. 1. He further opined that the death of Smt. Kaila might have occurred on 30.06.1992 at about 8 p.m. According to him, injury no. 1 was possible by ‘patal’ and death of Smt. Kaila (deceased) could be possible on account of the said injury. The accused / appellants denied all the allegations put to them and alleged false implication. We have heard learned counsel for the appellants and learned AGA on behalf of State. Learned counsel for the accused – Ratan vehemently argued that it appears to be a case of blind murder. Both PW1 Babu Ram and PW2 Kalpana are highly interested witnesses being husband and daughter of the deceased. Learned counsel for the appellant, after taking us through the statements of both the PWs, argued that these witnesses could not have witnessed the alleged incident, as both of them have stated that when the accused had pelted stones and brickbats, all of them went inside their house except Smt. Kaila (deceased). It is argued that if Babu Ram and other family members had gone inside the house, they were unable to see accused Ratan having caused injury with the ‘patal’ to Smt. Kaila (deceased). At that time when occurrence took place, the terrorists were active in that area and Smt. Kaila (deceased) might have been murdered by some terrorists. Learned counsel for the appellant further argued that there was no source of light at the place of occurrence. 6 The occurrence took place at 8.00 p.m. in the night. The informant has also not mentioned in the written report whether there was any source of light at the place of occurrence. He further stated that prosecution has tried to make improvement as both PW1 Babu Ram and PW2 Kalpana were recalled by prosecution when they stated that electricity bulb was emitting light in front of their house at the time of occurrence. He also pointed out that investigating Officer clearly stated that he has not shown the existence of electricity bulb in the site plan (exhibit Ka5). Learned counsel for the appellant further argued that prosecution has failed to produce Sahib Singh who is alleged to have informed the scribe of the written report PW3 Om Prakash. Learned counsel for the appellant further pointed out that Om Prakash was not resident of village – Sultanpur Patti. He was residing at a distance of about 5 kms and therefore, the prosecution has failed to prove his presence at the time when the report has been scribed. In these circumstances, it can well be said that FIR was actually written during the day time on 01.07.1992 and not on 30.06.1992. He further pointed that there is a police chowki in the village, which is at a distance of about 700 – 800 metres from the place of occurrence but there is no explanation as to why the matter was not reported at police chowki and why the complainant went to police station Bazpur, which is at a distance of 14 kms from the place of occurrence, which certainly creates doubt that FIR was not recorded on the date and time as put forward by the prosecution. Learned counsel further argued that even the place of occurrence is not 7 established. It is pointed that blood stained earth was not sent for forensic laboratory for scientific examination. He further pointed out that none of the eye witness has stated that blood fell on the earth at the place of occurrence, therefore, it can be well presumed that the place of occurrence could be shifted. He further argued that medical evidence does not support the prosecution case. He referred to the statement of PW4 Dr. S.N. Singh Chandel, who in the cross examination stated that injury could be caused with danda. Learned counsel for the appellant further argued that besides the above circumstances, the weapon of offence was also not recovered. The Investigating Officer stated that he made efforts but could not recover the weapon. Mr. M.K. Goyal, learned counsel for the appellant lastly argued that if the court holds the accused Ratan guilty of causing death of Smt. Kaila, it cannot be a case punishable under section 302 IPC. It is argued that it’s a case of single blow and the incident took place due to sudden quarrel. As the tempers ran high and in the heat of passion accused Ratan might have assaulted the deceased without any pre-meditation. It is argued that only one blow is indicative of the fact that he did not intend to cause the death of Smt. Kaila (deceased) and as such, the accused Ratan can be punished under section 304 Part I or or 304 Part II IPC instead of under section 302 IPC. In support of his argument learned counsel for the appellant referred to decision reported in “2004 Criminal Law Journal 486 Ratan and another Vs. State” and “2004 Criminal Law Journal 632 Bagadi Vs. State of Madhya Pradesh.” 8 Mr. M.S. Pal, learned Sr. Advocate, for the accused Kunwar Pal, Radhey Shyam, Udal, Nawal Kishore argued that he endorses the arguments raised by Mr. M.K. Goyal. He, however, argued that the four accused persons whom he is representing did not share common object to cause the death of Smt. Kaila (deceased). It is argued that these four accused were not present at the time when accused Ratan alleged to have caused injury to Smt. Kaila (deceased). At the most the allegation against these accused is that they were initially present outside the house of the complainant, performing obscene acts and they had altercation with Smt. Kaila (deceased) when she objected to such action. Thereafter, they left the place of occurrence. As per the statement of the complainant Babu Ram also, the matter had initially subsided but in the meanwhile women folk from the house of accused arrived at the spot and pelted stones and brickbats and at that very time, accused Ratan caused injury to Smt. Kaila (deceased). In these circumstances it is neither proved nor can be presumed that these four accused would form common object to cause her death. In case they had any common object they would have gone armed with weapons. It is further argued that no specific overt acts have been attributed against them. He also pointed that even as per the medical evidence there is no other injury except injury no. 1 caused by ‘patal’ and injury no. 2 which could have been caused by fall, on the body of the deceased Smt. Kaila. Thus, nobody else has used any weapon. None of the accused represented by him has been alleged to have caused any injury on the person of Smt. Kaila (deceased). He further pointed that it is not even proved on record that accused were the members of 9 unlawful assembly. In support of his argument, learned counsel referred to the decision reported in 2004 SCC (Cri.) 1041 (Charan Singh & others Vs. State of U.P.) and 2007 Criminal Law Journal 3277 (Sunil Balkrishna Bhoir Vs. State of Maharastra). We have heard and considered the rival submissions of learned counsel for the parties and have carefully scanned the evidence and documents on record. The prosecution’s case mainly rests on the testimony of Babu Ram and Km. Kalpana, husband and daughter of Smt. Kaila (deceased) respectively. A perusal of the statements recorded in examination-in-chief and in cross examination clearly shows that both of them were present in their house when the occurrence took place. Occurrence took place within the premises of the house of Babu Ram i.e. in the courtyard of his house. There is no boundary wall around his courtyard. Both of them categorically stated that all the five accused came and stood in front of their house and started making obscene gesture and hurling abuses. When Smt. Kaila (deceased) objected to their action, some altercation took place between them. Thereupon, the accused started pelting stones and brickbats. Some women from the side of accused also came and followed the same. Both of them have categorically stated that in the meanwhile accused Ratan brought ‘patal’ from his house and gave blow on the head of Smt. Kaila (deceased). After receiving the injury, she fell down and thereafter, she was declared dead in the hospital. Both the witnesses were strenuously cross examined but the defence could not elicit anything from them in their favour. 10 Learned counsel for the appellants have tried to point out certain loopholes in the case of the prosecution by pointing out that it was not possible for the witness to identify the accused persons as there was no source of light. The argument of learned counsel for the appellants does not appeal to us as it was the month of June and the incident took place at about 8.00 p.m., therefore, it could not be pitch-dark during those days. Moreover, the Investigating officer has categorically stated that though he did not mention about the electricity bulb emitting light in the site plan but he has mentioned this in his General Diary. We have gone through the General Diary wherein the Investigating Officer has given detailed account of the spot wherein it has been mentioned that a bulb was emitting light in the courtyard from the window above the wall of verandah (jangala). Even PW1 and PW2 have also stated in their statement that there was a bulb emitting light outside their house in the street. The defence has not been able to controvert their testimony as well as the details given in the general diary recorded by the Investigating Officer during the investigation. Moreover, both the accused persons as well as the complainant are the resident of same village and rather they live in same vicinity. All of them were known to each other and therefore, it cannot be a case of mistaken identity. The argument of learned counsel for the appellants with regard to the place of occurrence does not appear to be probable. In view of the reliable and trustworthy statements of PW1 Babu Ram and PW2 Km. Kalpana, we have no doubt in our mind that the place of occurrence is 11 the courtyard of the complainant. Moreover, no suggestion has been given to any of the witnesses in the cross examination that occurrence did not take place at the place as pointed out by the prosecution witnesses. Both Babu Ram and Kalpana have stated that they were in their courtyard when initially occurrence took place, but they went inside the verandah when accused started pelting stones and brickbats. However, Smt. Kaila (deceased) remained in the courtyard. It was pointed by the learned counsel for the appellants that if Babu Ram along with other family members went inside their house except Smt. Kaila (deceased), they were not in a position to witness that accused Ratan, as alleged, had caused injury to Smt. Kaila (deceased). The argument has no force in view of categoric statement of Babu Ram and Kalpana that they had gone inside the verandah and occurrence was seen by them from the verandah. The site plan (exhibit 5) was prepared by the Investigating Officer immediately after the matter was reported. In the site plan, he has shown brickbats lying in the courtyard and the place of occurrence has been shown at point “Ka” which is inside the courtyard and is visible from the verandah of the complainant. Next argument of learned counsel for the appellant that the FIR has been changed has no force, as Babu Ram gave explanation that though the FIR was written on 30.06.1992 but 01.07.1992 is mentioned on the said First Information Report, as Babu Ram had told Om Prakash that he would go to report the matter at Police Station – Bazpur in the morning and not during the night out of fear. The police station is at a distance of about 14 kms 12 from the place of occurrence and initially, Babu Ram was apprehensive of going to the police station but he went to the police station on the same night on a tractor on asking of the villagers who had accompanied him to the police station. The fact that the person who had informed about the incident to Om Prakash - the scribe of the report, has not been produced does not cause dent in the prosecution case. It is not necessary as to how Om Prakash came to know about the incident it is only important that the scribe Om Prakash has admitted having scribed the written complaint. Medical evidence fully supports the prosecution case. As per the postmortem, deceased received one lacerated bone deep wound in the centre of the scalp, which in the opinion of the Medical Officer could be caused by ‘patal’ and the impact of the injury was so grave that it resulted into fracture of left parietal bone and temporal bone. The death was caused as a result of haemorrhage on account of injury no. 1. We are, therefore, of the opinion that as far as accused Ratan is concerned, there is specific and categoric testimony of PW1 and PW2 that he is the person, who assaulted Smt. Kaila (deceased) with ‘patal’. It has also come in the evidence that when stones and brickbats were pelted, the accused Ratan went to his house and brought ‘patal’ from his house and caused injury on the person of Smt. Kaila (deceased). This circumstance is indicative of the fact that he went to his house with pre-meditation to cause injury on the person of Smt. Kaila (deceased). Though only one injury was caused on the person of the deceased but it was caused on the vital part and with such 13 a force that she fell down on the ground and died immediately thereafter. Therefore, the accused cannot be given benefit of exception 4 of section 300 IPC. We do not find any ground to convert the offence from section 302 IPC to section 304 (part I) or section 304 (part II) IPC against accused Ratan. We accordingly find no ground to interfere with the findings recorded by the trial court qua accused Ratan. The facts of case law cited by the learned counsel for the appellant are not applicable to the facts of the present case. As regards to the other accused, initially dispute had arisen because the accused appellants while standing outside the house of the complainant were making obscene gestures and hurling abuses. When it was objected by Smt. Kaila (deceased) some altercation took place, thereupon, they started pelting stones and brickbats. On the request of complainant and on the intervention of the residents of neighbouring houses, the matter subsided but in the meanwhile women folk from the house of the accused reached on the spot and again they all started pelting stones and brickbats. Both PW1 Babu Ram and PW 2 Kalpana have deposed that accused persons started pelting stone and brickbats again. There is no evidence on record to show that the accused had left the place of occurrence. Now, coming to the question of applicability of section 149 IPC, it is true that there is nothing to prove that they shared common object with accused Ratan by any expression or agreement after mutual consultation to cause death of Smt. Kaila (deceased). The foundation of section 149 IPC is on constructive liability wherein the emphasis is on the 14 common object and not on common intention. Mere presence in an unlawful assembly would not render these accused liable unless the prosecution could prove the common object with accused Ratan and therefore, these persons cannot be liable to be convicted with the help of section 149 IPC. The question to be determined is whether the unlawful assembly of these four persons entertained the common object with accused Ratan and they were aware of his action and concur with the same. We are of the view that four accused namely Kunwar Pal, Radhey Shyam, Udal and Nawal Kishore had common object till the time they pelted stones and brickbats, hurling abuses. They did not have common object of causing death of Smt. Kaila (deceased). Thus, we are of the opinion that the above mentioned four accused did not share common object with Ratan accused to cause the death of Smt. Kaila (deceased). No overt act has been attributed to these four persons. In these circumstances, these accused Kunwar Pal, Radhey Shyam, Udal and Nawal Kishore cannot be held guilty for offence under section 302 read with section 149 IPC. However, they are certainly guilty of the offence punishable under section 147 IPC, as there is positive and sufficient evidence that they formed unlawful assembly, hurling abuses, making obscene gestures towards daughters of the complainant and when Smt. Kaila (deceased) objected they had pelted stones towards them, as such, they are guilty for the offence punishable under section 147 IPC. In view of the above discussion, we agree with the findings of the trial court to hold them guilty under 15 section 147 IPC and thus, maintain the sentence of one year rigorous imprisonment. They are, however, acquitted of charge under section 302 read with section 149 IPC Accordingly, Criminal Appeal no. 1645 of 2001 filed by accused Ratan is dismissed, conviction and sentence recorded against him is left undisturbed while appeal filed by accused Nawal Kishore is partly allowed with the modification referred to above. Criminal Appeal no. 1647 of 2001 filed by Kunwar Pal, Radhey Shyam and Udal is partly allowed with modification referred to above. Appellants are on bail. They shall be taken into custody forthwith to serve out the sentence, if already not undergone. The trial court is directed to ensure the compliance of the order. Let the lower court record be sent back. (Nirmal Yadav, J.) (B.C. Kandpal, J) 17.03.2010 SKS