COURT’S ORDER WHETHER THE CASE IS OR NOT APPROVED FOR REPORTING Description of the Case. CRIMINAL APPEAL No. 593 of 2001 (Old No. 401 of 1989) Jeet Singh S/o Hardatta Singh ……………Appellant Versus The State. ……..…Respondent Sri B.P.S. Mer, learned amicus curiae for the appellant Sri M.A. Khan, learned brief holder for the State A.F.R. (Approved for Reporting) Not approved for Reporting Dated: February 26, 2008 (Dharam Veer, J.) RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND, AT NAINITAL CRIMINAL APPEAL No. 593 of 2001 (Old No. 401 of 1989) Jeet Singh S/o Hardatta Singh, R/o Village Kakrala, P.S. Gadarpur, District Nainital …………Appellant Versus The State ……………Respondent Dated: February 26, 2008 Sri B.P.S. Mer, learned amicus curiae for the appellant Sri M.A. Khan, learned brief holder for the State HON. DHARAM VEER, J. This criminal appeal preferred u/s 374(2) of Code of Criminal Procedure, 1972 (hereinafter to be referred Cr.P.C.) is directed against the judgment and order dated 9/10.2.1989 passed by I Additional Sessions Judge, Nainital in Sessions Trial No.226 of 1987, State vs. Hardatt Singh & others, whereby the learned I Additional Sessions Judge has convicted the appellant-Jeet Singh under Section 148 of Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced him to one year R.I. Appellant Jeet Singh was further convicted under Section 307/149 IPC and was sentenced to four years R.I. and fine of Rs. 1,000/- and in default of payment of fine, six months further R.I. was awarded to him. It was also directed that both the sentences shall run concurrently. Co-accused Hardat Singh was convicted under Section 147 IPC and u/s 307/149 IPC and accused Pritam Singh and Malkiyat Singh were convicted under Section 148 IPC and u/s 307/149 IPC, however they were given the benefit of Probation of First Offenders Act. 2. In brief, the prosecution case is that on 1.4.1985 at 10.00 A.M., Charan Singh, son of complainant Kartar Singh along with Khajan Singh, Wariyam Singh and Thapa Singh were going to jungle (forest) to work as a labourer. On the way, Jeet Singh (appellant) and co-accused Pritam Singh, Haridutt Singh, Malkiyat Singh, Ranga Singh and Reeta Singh, who had enmity with the complainant and his sons in respect of some wood, came there. The appellant and his companions being armed with Lathis, Ballam (spear) and axe, beaten Charan Singh, Khajan Singh, Wariyam Singh and Thapa Singh. The injured persons raised alarm on which the complainant Kartar Singh, Lachman Singh, Inder Singh and Bachan Singh reached on the spot. Charan Singh was beaten by axe by appellant Jeet Singh; Thapa Singh was beaten by accused Malkiyat Singh by spear; Khajan Singh was beaten by accused Pritam Singh by spear and Wariyam Singh was beaten by accused Reeta Singh by spear. Accused Haridutt Singh and Ranga Singh, being armed with Lathis, were surrounding the way and were saying to kill them. On seeing the complainant and other witnesses, the appellant and his companions ran away towards the Jungle(forest). In this occurrence, Charan Singh, Khajan Singh, Wariyam Singh and Thapa Singh received the injuries. With the same averments, the Chik FIR was written by Head Constabe Gopal Dutt on the oral dictation of Kartar Singh on 1.4.1985 at 13:45 hours at Police Chowki Gularbhoj, P.S. Gadarpur and the distance of the police station from the place of occurrence is 5 Kms., that Chik FIR is Ex.Ka-1. The investigation of the case was entrusted to S.O. Harish Bahadur Singh. Injured Charan Singh was medically examined in the P.H.C., Gadarpur on 1.4.1985 at 3:05 P.M., his injury report is Ex.Ka.2. Injured Khajan Singh was also medically examined at PHC, Gadarpur on 1.4.1985 at 3:00 P.M., his injury report is Ex.Ka-3. Injured Wariyam Singh was also medically examined at PHC, Gadarpur on 1.4.1985 at 3:10 P.M., his injury report is Ex.Ka.4. Injured Thapa Singh was also medically examined at PHC, Gadarpur on 1.4.1985 at 3:15 P.M., his injury report is Ex.Ka-5. Supplementary medical reports of Charan Singh are Ex.Ka-6 and Ex.Ka-7; supplementary medical report of Khazan Singh is Ex.Ka-8; supplementary medical report of Wariyam Singh is Ex.Ka-9 and supplementary medical report of Thapa Singh is Ex.Ka.10. During the course of the investigation, the I.O. also prepared the site plan of the place of occurrence, i.e. Ex.Ka-11. The I.O. also took into possession the plain clay and blood stained clay from the place of occurrence and prepared a Fard, that Fard is Ex.Ka-12. The I.O. also recorded the statements of the witnesses during the course of the investigation and after completing the investigation, he submitted the charge sheet against the appellant Jeet Singh and co-accused Haridutt Singh, Pritam Singh and Malkiyat Singh, that charge sheet is Ex.Ka.13 and in the said charge-sheet, co-accused Ranga Singh and Reeta Singh were shown as absconders. Ex.Ka-14 is the carbon copy of G.D. No.13 dated 1.4.1985 for registration of the case. Ex.Ka-15 is the copy of G.D. No.27 dated 1.4.1985 for sending the papers of the case to P.S. Gadarpur. 3. Learned Chief Judicial Magistrate, Nainital has committed the case to the court of Sessions on 30.10.1987 under section 209 Cr.P.C. after complying with the provisions of Section 207 Cr.P.C. 4. The case was transferred by learned Sessions Judge to learned I Additional Sessions Judge, Nainital for disposal according to law. 5. On 11.12.1987, the I Additional Sessions Judge, Nainital has framed the charge against the accused Hardatt Singh u/s 147 IPC and u/s 307 r/w 149 IPC. The charge against the appellant Jeet Singh and co-accused Pritam Singh, and Malkiyat Singh was also framed on the same day under Section 148 IPC and under Section 307 r/w Section 149 IPC. The charge was read over and explained to the appellant and co-accused persons who pleaded not guilty and claimed to be tried. 6. To prove its case, the prosecution examined P.W.1 Kartar Singh, complainant of the case, P.W.2 Wariyam Singh, injured and eyewitness, P.W.3 Lachman Singh, eyewitness of the case, P.W.4 Charan Singh, injured and eyewitness of the case; P.W.5 Dr. K.B. Singh who has medically examined the injured persons and P.W.6 S.O. Harish Bahadur, I.O. of the case. 7. Thereafter, the statements of the appellant Jeet Singh and co-accused Haridutt Singh, Malkiyat Singh and Pritam Singh were recorded u/s 313 of Cr.P.C. The questions were put to them but they denied the allegations made against them and stated that complainant party trespassed in their houses with the intention to tease their women and put fire to their houses. The women also tried to defend themselves. Smt. Tej Kaur, wife of accused Hardutt Singh tried to lodge a report but the police did not write her report. 8. After appreciating the evidence on record and after hearing learned counsel for the parties, the learned I Additional Sessions Judge vide his judgment and order dated 9/10.02.1989 has convicted the appellant-Jeet Singh under Section 148 of IPC and sentenced him to one year R.I. He was further convicted under Section 307/149 IPC and was sentenced to four years R.I. and fine of Rs. 1,000/- and in default of payment of fine, six months further R.I. was awarded. It was also directed that both the sentences shall run concurrently. Accused Hardat Singh was convicted under Section 147 IPC and u/s 307/149 IPC and accused Pritam Singh and Malkiyat Singh were convicted under Section 148 IPC and u/s 307/149 IPC, however they were given the benefit of Probation of First Offenders Act. Feeling aggrieved by the aforesaid judgment and order dated 9/10.2.1989, the appellant Jeet Singh has preferred the present appeal. 9. I have heard Sri B.P.S. Mer, learned amicus curiae for the appellant and Sri M.A. Khan, learned brief holder for the State and perused the entire material available on record. 10. To prove its case, the prosecution has examined P.W.1 Kartar Singh who has stated that appellant Jeet Singh and accused Haridutt Singh, Pritam Singh and Malkiyat Singh were known to him. This incident had occurred three years back, the time was about 10 A.M. There was some dispute of wood. Wariyam Singh, Charan Singh, Khajan Singh and Thapa Singh were going to cut the wood. As soon as they reached near the Jhala of Ranga Singh, the appellant along with co-accused persons and their companions Ranga Singh and Harid Singh came there. Harid Singh (Reeta Singh) was armed with a Ballam (spear), Ranga Singh was armed with a Lathi, Jeet Singh (appellant) was armed with an axe, Pritam Singh was armed with a Ballam (spear), Malkiyat Singh was also armed with Ballam (spear) and Haridutt Singh was armed with a Lathi. Appellant Jeet Singh caused injury to Charan Singh, Malkiyat Singh caused injury to Wariyam Singh, Pritam Singh caused injury to Khajan Singh and Harid Singh (Reeta Singh) caused injury to Thapa Singh. He has also stated that Harid Singh was also known as Reeta Singh. This incident was witnessed by Lachman Singh, Bachan Singh and Inder Singh. The accused persons had caused injuries to the injured persons with the intention to kill them. The injured persons were taken to Gadarpur on cots. Thereafter, he had dictated the report and he also proved that report, i.e. is Ex.Ka-1. The blood was also stained on the clothes of injured persons and the police sent the injured persons to Gadarpur for medical examination. This witness was cross-examined at length by the defence counsel but nothing has come out in his evidence which may create any doubt in his evidence. The evidence of this witness is reliable, believable and natural. 11. P.W.2 is Wariyam Singh who has stated that appellant Jeet Singh and co-accused Haridutt Singh, Pritam Singh and Malkiyat Singh were known to him. This incident had occurred before 3-3½ years back. There was daytime. He along with Kartar Singh, Thapa Singh, Charan Singh and Khajan Singh were going to the forest to work as a labourer. The wood contractor had asked them to not to allow anyone to lift the wood. The accused persons used to lift the wood, however he and his companions did not allow the accused persons to lift the wood and due to this reason, the accused persons were having enmity with them. The accused persons were above-said four persons. Except the above-said four accused persons, one accused was Ranga and another was his son Reeta Singh, who were hidden. In front of Jhala of Ranga Singh, they (accused persons) committed Marpit with them. Pritam Singh was armed with an axe, Rita Singh was armed with a spear and Malkiyat Singh was also armed with a spear. Rita Singh had caused injuries to him by spear which hit him on his back. Jeet Singh had caused injury to Charan Singh; Malkiyat Singh had caused injury to Thapa Singh which also hit him on his back; Pritam Singh had caused injury to Khajan Singh on his back. Ranga Singh and Haridutt were armed with lathis and Haridutt and Ranga were saying to kill them. On the alarm raised by the injured persons, Inder Singh, Hukum Singh and some women came on the spot. Thereafter, they were taken to the Police Chowki and subsequently they were taken to the hospital where they were medically examined. This witness was also cross-examined at length by the defence counsel but nothing has come out in his evidence which may create any doubt in his evidence. The evidence of this witness is also reliable, believable and natural. 12. P.W.3 is Lachman Singh who has stated that this incident had occurred about 3½ years back, the time was about 10:00 A.M. Wariyam Singh, Khajan Singh, Thapa Singh and Charan Singh were going to work as a labourer. In front of Jhala of Ranga Singh, the accused persons (appellant Jeet Singh, co-accused Pritam Singh, Malkiyat Singh, Haridutt Singh, Ranga Singh and Reeta Singh) were raising a call to kill them. He along with Bachan Singh and Inder Singh were coming were on the way with some distance. Appellant Jeet Singh had caused injury to Charan Singh by axe; accused Pritam Singh had caused injury to Khajan Singh by spear; Malkiyat Singh had caused injury to Thapa Singh by spear; Reeta Singh had caused injury to Wariyam Singh by spear and Ranga Singh and Haridutt Singh, who were having lathis in their hands, were surrounding the way. As soon as he and other accompanied persons reached there, then the accused persons ran towards the jungle(forest) after committing the Marpit. Charan Singh had received the injuries on his head by axe, Khajan Singh had received injuries on his back by spear, Wariyam Singh had received injuries on his back by spear and Thapa Singh also received injuries on his back by spear. The accused persons had caused injuries to the injured persons due to the enmity of wood. This witness was also cross- examined at length by the defence counsel but nothing has come out in his evidence which may create any doubt in his evidence. The evidence of this witness is also reliable, believable and natural. 13. P.W.4 is Charan Singh who has stated that the incident had occurred about 3¼ years back, the time was about 10:00 A.M. He along with Wariyam Singh, Thapa Singh and Khajan Singh were going to the forest for the cutting work. As soon as they reached in front of house of Ranga Singh, then accused Hardutt Singh, Jeet Singh (appellant), Pritam Singh, Malkiyat Singh, Ranga Singh and Reeta Singh, being armed with Lathis, spear and axe, came and surrounded them and started beating them. Appellant Jeet Singh had caused injury to him by axe which hit on his head, due to which he fallen down and got unconscious. He has also stated that besides him, Wariyam Singh, Khajan Singh and Thapa Singh also received injuries. This witness was also cross- examined at length by the defence counsel but nothing has come out in his evidence which may create any doubt in his evidence. The evidence of this witness is also reliable, believable and natural. 14. P.W.5 is Dr. K.B. Singh who has stated that on 1.4.1985, he was posted as Medical Officer, PHC, Gadarpur. On that day at 3:05 P.M., he had medically examined Charan Singh and he found following injuries on his body: - “Incised wound 11 cm x 1 cm x bone cut on the left side scalp. Beginning from 9 cm away from eyebrow in the middle extending posterior up to occipital. Clot blood found in the wound. When clot removed, fresh oozing of blood present. The patient was kept under observation and X’ ray was advised. He has also opined that the injury could be caused by some sharp edged weapon. He has also proved the injury report, i.e. Ex.Ka-2. On the same day at 3:00 P.M., he had medically examined Khajan Singh and he found following injuries on his body: - “Incised wound 4 cm x 0.75 cm on the middle of right scapula. Depth cannot be probed. Beginning from 10 cm. away from backbone. Crypts present. Fresh bleeding from wound present. Associated with swelling or right scapular region.” The patient was kept under observation. He has also opined that the injury could be caused by some sharp edged weapon. The duration of the injury was fresh. He has also proved the injury report, i.e. Ex.Ka-3. On the same day at 3:10 P.M., he had medically examined Wariyam Singh and he found following injuries on his body:- 1. Incised wound 3.5 cm x 0.5 cm x 0.5 cm on the left side of back 2 cm away from midline on the lower rib. Flapping of wound present. When clot removed, fresh bleeding present. 2. Linear scatch 6 cm beginning from middle of post axillary fold. Beginning from above 12.5 cm above illiciant. Extending towards first injury. Fresh oozing of blood present when clot removed. The patient was kept under observation. He has also opined that the injuries no. 1 and 2 could be caused by some sharp edged weapon. The duration of the injuries was fresh. He has also proved the injury report, i.e. Ex.Ka-4. On the same day i.e. on 1.4.1985 at 3:15 P.M., he had medically examined Thapa Singh and he found following injuries on his body: - “Incised wound 6 cm x 1 cm x depth cannot be probed. On the back of right side repal region and extending towards over the rib region. Direction oblique. Beginning from 5 cm away from Omid line. Bleeding present. Kept under observation. Tissues exposed moving with the respiration.” The injury was caused by some sharp edged weapon. X-ray was advised and injury was kept under observation. The injury was fresh in duration. He has also proved the injury report, i.e. Ex.Ka-5. The doctor has also stated that the injuries to all the injured persons could come on 1.4.1985 at 10:00 A.M. by some sharp edged weapons like axe and Bhala (spear). X-ray of all the injured persons was also conducted. Injured Charan Singh was having the paralysis and he could not speak for three days. The skull bone of Charan Singh was also found fractured. He also prepared. The supplementary reports of Charan Singh on 18.4.1985 and 22.4.1985, those reports are Ex.Ka-6 and Ex.Ka-7. On 18.4.1985, he prepared the supplementary reports of Khazan Singh, i.e. Ex.Ka-8. On the same day i.e. on 18.4.1985, he prepared the supplementary medical report of Wariyam Singh, i.e. Ex.Ka-9. On 22.4.1985, the supplementary medical report of Thapa Singh was also prepared by him, i.e. Ex.Ka-10. He has also stated in his evidence that he found the injuries of injured Charan Singh grievous in nature and the injuries of rest of the accused persons were found simple in nature. 15. P.W.6 is S.O. Harish Bahadur Singh, I.O. of the case who has stated that on 1.4.1985, he was posted as S.I. in P.S. Gadarpur. The investigation of this case was entrusted to him. The Chik FIR of this case was registered at Police Chowki Gularbhoj and the FIR and registration of the case was done by Head Constable Gopal Dutt. Thereafter, the copy of Chik and copy of report for the purpose of investigation was sent to P.S. Gadarpur. During the course of investigation, on 1.4.1985, he recorded the statements of Constable Surajpal and Head Constable Gopal Dutt. Thereafter, on 2.4.1985, he prepared the site plan of the place of occurrence, i.e. Ex.Ka. 11. Thereafter, he had also taken the plain clay and bloodstained clay from the place of occurrence and prepared a Fard, i.e. Ex.Ka.12. On 9.4.1985, he recorded the statement of injured Charan Singh in the hospital and also recorded the statements of other witnesses. On 15.4.1985, he recorded the statements of appellant Jeet Singh and co-accused Pritam Singh and Malkiyat Singh in the jail and after completing the investigation, he submitted the charge sheet in the court, i.e Ex.Ka13. He has also proved the G.D. No. 13 dated 1.4.1985 which was prepared by Head Constable Gopal Dutt for registration of the case, i.e. Ex.Ka-14. He also proved the G.D. No. 27 dated 1.4.1985 prepared by Constable Suraj Pal for sending the papers of the case to P.S. Gadarpur, i.e. Ex.Ka-15. 16. Thereafter, the statements of the appellant Jeet Singh and co-accused Haridutt Singh, Malkiyat Singh and Pritam Singh were recorded u/s 313 of Cr.P.C. The questions were put to them but they denied the allegations made against them and stated that complainant party trespassed in their houses with the intention to tease the women and put fire to their houses. The women tried to defend themselves. Smt. Tej Kaur, wife of accused Hardutt Singh tried to lodge a report but the police did not write her report. 17. Sri B.P.S. Mer, learned amicus curiae for the appellant submitted that on the basis of the evidence discussed above, there is no case made out against the appellant under the above-said offences in which he was convicted. The argument advanced by learned amicus curiae is not supported by the evidence above discussed. From the evidence discussed above, it is proved that Kartar Singh P.W.1 had ldoged the FIR with the allegations that the present appellant along with co-accused Haridutt Singh, Pritam Singh, Malkiyat Singh, Ranga Singh and Reeta Singh had caused injuries with axe and spear to the four injured persons namely Charan Singh, Khajan Singh, Wariyam Singh and Thapa Singh. It was also specifically stated in the statement of P.W.1 Kartar Singh, P.W.2 Wariyam Singh and P.W.4 Charan Singh that the present appellant Jeet Singh had caused injuries by way of axe to Charan Singh. Injured Charan Singh P.W.4 had incised wound on his head which is on the vital part of the body and in the opinion of Dr. K.B. Singh P.W.5, the said injury is grievous in nature. Thus, Charan Singh P.W.4 has stated specifically that the appellant Jeet Singh had cuased injuries on his head and after receiving the injuries, he had become unconscious and f allen on the spot. The statement of P.W.4 Charan Singh is also supported by the statement of P.W.2 Wariyam Singh (injured witness), P.W.1 Kartar Singh, (eyewitness and complainant) and P.W.3 Lachman Singh and is also corroborated by the statement of P.W.5 Dr. K.B. Singh as well as from his medical report Ex.Ka-2 and supplementary medical reports Ex.Ka-6 and Ex.Ka-7. Thus, the prosecution has fully established its case against the appellant beyond reasonable doubt that he (appellant Jeet Singh) is the only person who caused injuries by way of axe to Charan Singh P.W.4 with the common intention to kill him. The other co- accused persons namely Haridutt Singh, Pritam Singh and Malkiyat Singh have also caused injury by their weapons (spear) to the injured persons namely Khajan Singh, Wariyam Singh and Thapa Singh and the injuries of these persons are also proved by the prosecution from the statement of P.W.1 Kartar Singh, P.W.2 Wariyam Singh, P.W.3 Lachman Singh and P.W.4 Charan Singh and is also corroborated by the medical evidence of Dr. K.B. Singh, P.W.5 as well as from the injury reports viz. Ex.Ka.3 to Ex.Ka-5 and also from the supplementary medical reports viz. Ex.Ka-8 to Ex.Ka-10. In this way, the prosecution has been fully successful to prove its case against the appellant Jeet Singh beyond reasonable doubt under Section 148 IPC and under Section 307 r/w 149 IPC. 18. Learned amicus curiae for the appellant submitted that P.W.4 Charan Singh has stated in his cross-examination that the I.O. had recorded his statement on the next day of incident, however as per the evidence of P.W.5 Dr. K.B. Singh, injured Charan Singh P.W.4 could not speak for three days, as such it creates a doubt in the prosecution case. The argument advanced by learned amicus curiae does not bear any weight. On the basis of this minor contradiction only, the whole prosecution story cannot be discarded. The discrepancies found in the ocular account of two witnesses unless they are so vital, cannot affect the credibility of the evidence of the witnesses. Learned brief holder for the State cited a judgment rendered by Hon’ble Apex Court in the case of Leela Ram (dead) through Duli Chand vs. State of Haryana and another reported in (1999) 9 SCC 525. He relied on paras 9 and 19, which read as under:- “9. Be it noted that the High Court is within its jurisdiction being the first appellate court to reappraise the evidence, but the discrepancies found in the ocular account of two witnesses unless they are so vital, cannot affect the credibility of the evidence of the witnesses. There are bound to be some discrepancies between the narrations of different witnesses when they speak of details, and unless the contradictions are of a material dimension the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefor should not render the evidence of eyewitnesses unbelievable. Trivial discrepancies