IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No.749 of 2001 (Old No.592 of 1991) Dev Singh S/o Kundan Singh R/o Village Thamdeo Patwari Khsetra Latoogair, District-Chamoli …….….…. Appellant Versus The State …….….… Respondent Dated: October 31, 2008 Sri R.P. Nautiyal, learned counsel for the appellant Sri M.A. Khan, learned Brief Holder for the State HON. DHARAM VEER, J. This appeal, preferred 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 29.03.1991 passed by Sessions Judge, Chamoli in Sessions Trial No.17 of 1989, State of U.P. Vs. Dev Singh & others, whereby the learned Sessions Judge convicted the appellant/accused Dev Singh under Section 307 of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced him for seven years R.I. However, the appellant/accused was acquitted of the charge of offences punishable u/Ss 148, 307 r/w Section 149 and 379 I.P.C and the co-accused-Smt. Bhagirathi Devi, Smt. Shanta Devi, Smt. Nandi Devi, Smt. Khimuli Devi and Diwan Singh were acquitted of the charge u/Ss 148, 307 r/w Section 149 and 379 I.P.C. by the trial court. 2. I have heard Sri R.P. Nautiyal, learned counsel for the appellant/accused and Sri M.A. Khan, learned brief holder for the State and perused the entire material available on record. 2 3. In brief, the prosecution case is that P.W.1 Mahendra Singh lodged a F.I.R. before the Patwari Latoogair on 22.09.1987 with the averment that on 22.09.1987 at about 1:00 P.M. he has gone to his field for threshing the paddy along with his son Shiv Singh and Bhupal Singh. Meanwhile, his brother’s wife Smt. Bhagirathi Devi (wife of Dev Singh), Smt. Shanta Devi-wife of Diwan Singh, Smt. Nandi-wife of Ram Singh, Smt. Khimuli-wife of Hayat Singh reached at the place of occurrence and stopped them for threshing the paddy and abused them and threatened them for marpeet. In the meantime, Diwan Singh also reached at the place of occurrence and he also abused and threatened them. In the meantime, the appellant/accused Dev Singh also reached in the field along with his gun and fired on Shiv Singh and then at the second time he fired on Bhupal Singh. After that he, his son Bhupal Singh and Shiv Singh ran away from the place of occurrence due to fear of the appellant/accused and the co- accused persons. Both of his sons Bhupal Singh and Shiv Singh received injuries. After that the wife and the daughter- in-laws of the appellant/accused Dev Singh have stolen the paddy, one tripal, three cotton bed sheets from the field and two pairs of slipper were also taken by them. This incident was witnessed by Shyam Singh, Pan Singh and by so many other people. He further averted that before the said incident Diwan Singh has enmity with his family and the cases were pending in the courts. With the same averments, the F.I.R. was lodged by P.W.1 Mahendra Singh on 22.09.1987 at 4:30 P.M. before the Patwari, Latoogair, i.e. Ext.Ka-1. (In 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). On the basis of this F.I.R., Chik F.I.R. was prepared by P.W.8 Patwari Pratap Singh Barthwal, i.e. Ext.Ka-9. The entry was also made in the General Diary, copy of the G.D. is Ext.Ka-10. Injured 3 Bhupal Singh and Shiv Singh were medically examined by P.W.6 Medical Officer, Dr. A.K. Rai. He prepared the injury reports and medical certificates of Bhupal Singh and Shiv Singh. Injury report of Bhupal Singh is Ext.Ka-4 and the injury report of Shiv Singh is Ext.Ka-6. Medical Certificate of Bhupal Singh is Ext.Ka-5 and that of Shiv Singh is Ext.Ka-7. X-Ray of both the injured was conducted, the X-Ray report of Shiv Singh is Ext.Ka-2 and the X-Ray report of Bhupal Singh is Ext.Ka-3. During the course of investigation, Patwari (Investigating Officer) prepared the site-plan of the place of occurrence, i.e. Ext.Ka-11. FARD was also prepared of the inspection of the spot, that FARD is Ext.Ka-12. The I.O. also recorded the statement of the witnesses. Later on, by the order of Nayab Tehsildar, investigation of this case was transferred to P.W.9 Patwari Govind Prasad Arya, who, during the investigation, also recorded the statement of the witnesses and has taken the bloodstained clothes of the injured into his possession and the FARD was prepared, i.e., Ext.Ka-14. After that the investigation of this case was transferred to P.W.7 Sarveshwar Prasad, who after completing the investigation filed the charge sheet, i.e., Ext.Ka-8 against the appellant/accused and the other co-accused persons. 4. Learned C.J.M., Chamoli committed the case to the Court of Sessions on 22.08.1989 after giving necessary copies to the appellant/accused and the other co-accused persons (acquitted by the trial court) as provided under section 207 Cr.P.C. 5. On 17.01.1990, Learned Sessions Judge, Chamoli framed the charge against the appellant/accused and the other co-accused persons (acquitted by the trial court) u/Ss 148, 307 r/w Section 149 and 379 I.P.C. The charge was read over and explained to the appellant/accused and other co- accused, who pleaded not guilty and claimed to be tried. 4 6. To prove its case, the prosecution has examined P.W.1 Mahendra Singh-complainant and the eyewitness of the case, P.W.2 Pan Singh-eyewitness of the case, P.W.3 Shiv Singh-injured eyewitness, P.W.4 Shyam Singh-eyewitness, P.W.5 G.S. Pathak, X-Ray Techinician, P.W.6 Dr. A.K. Rai, who has medically examined the injured Bhupal Singh and Shiv Singh, P.W.7 Sarveshwar Prasad, Patwari/Investigating Officer, P.W.8 Pratap Singh, Patwari/Investigating Officer, P.W.9 Govind Prasad Arya, Patwari/ Investigating Officer. 7. Thereafter, the statement of the appellant/accused and the other co-accused persons were recorded u/s 313 of 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. In reply to Question No.19, the appellant/accused stated that on the date of the incident he was not at home and he came to know that the injured have received injuries in the forest at the time of hunting and he has been falsely implicated in the above said case. However, in defence, he did not produce any documentary evidence but in oral evidence he examined two witnesses D.W.1 Mahendra Singh and D.W.2 Dhan Singh. 8. After appreciating the evidence available on record and hearing learned counsel for the parties, learned Sessions Judge, Chamoli vide his judgment and order dated 29.03.1991 convicted the appellant/accused Dev Singh u/s 307 I.P.C. and sentenced him for seven years R.I. However, the appellant/accused was acquitted of the charge of offence punishable u/Ss 148, 307 r/w Section 149 and 379 I.P.C and the co-accused-Smt. Bhagirathi Devi, Smt. Shanta Devi, Smt. Nandi Devi, Smt. Khimuli Devi and Diwan Singh were acquitted of the charge u/Ss 148, 307 r/w Section 149 and 379 I.P.C. by the trial court. Against the aforesaid judgment 5 and order, the appellant/accused has preferred the present appeal. 9. Before further discussion, it is pertinent to mention the injuries found on the body of the injured Bhupal Singh. The injured Bhupal Singh was medically examined by P.W.6 Dr. A.K. Rai on 23.09.1987 at 1:50 P.M. in District Hospital, Gopeshwar and has found the following injuries on his body:- (i) Blackened skin with reddish margin 1/2cm x 1/2cm in semicircular portion, highest at right side of chest 22cm below axilla on lateral aspect, lowest at left gluteal region in middle with intervening distance from 4.5cm to 7cm. (ii) Seven small areas of blackened skin with reddish margin 1/2cm x 1/2cm, scattered over posterior aspect of left thigh upper half. (iii) One small area of black skin and reddish margin 1/2cm x 1/2cm over medial aspect of left knee. (iv) One area of 1/2cm x 1/2cm of black skin and red margin over medial aspect of left leg in middle. (v) Eight areas 1/2cm x 1/2cm of black skin and red margin scattered over back of right thigh post aspect. (vi) Twelve areas of 1/2cm x 1/2cm approx., over post aspect of right leg in middle with black skin and red margin. (vii) Area of black ski n with red margin 1/2cm x 1/2cm over left forearm. (viii) Area of black skin with red margin 1/2cm x 1/2cm over right radial styloid process. 6 Opinion:- The above injuries are simple in nature, caused by some fire arm, as alleged as possible about one day old. Kept under observation. Advised X-ray right thigh, AP left thigh, AP left leg, AP view. 10. On the same day at 2:10 P.M., injured Shiv Singh was also medically examined by P.W.6 Dr. A.K. Rai and he found the following injuries on his body:- (i) Seventeenth areas of blackened skin with reddish margin of 1/2cm x 1/2cm scattered over front of right leg. (ii) Nine areas of blackened skin with reddish margin of 1/2cm x 1/2cm scattered over front of left leg and foot. (iii) Abrasion 1cm x 0.5cm over lateral aspect of left knee with area of black skin. (iv) Area of black skin with reddish margin 1/2cm x 1/2cm over medial side of left knee, 6cm above joint line. Opinion:- The above injuries are simple in nature, caused by some fire arm as alleged as possible, about one day old, kept under observation. Advised X-Ray right leg, X-Ray left leg advised. 11. To prove the above injury reports, the prosecution examined P.W.6 Dr. A.K. Rai, who has stated that in his opinion all the above injuries were simple and could be caused by firearm. He has prepared the injury reports, i.e., Ext.Ka-4 and Ext.Ka-6 and also the medical certificates, i.e., Ext.Ka-5 and Ext.Ka-7. Pellets were recovered from the body of injured Bhupal Singh, which are Ext.3 to Ext.13 and the pellets recovered from the body of injured Shiv Singh is Ext.14 to 7 Ext.17. He further stated that due to these injuries death was impossible. 12. To further prove its case, the prosecution has examined P.W.3 Shiv Singh (injured eyewitness of the case), who has stated that the appellant/accused Dev Singh is his uncle and P.W.1 Mahendra Singh is his father. Diwan Singh is the son of appellant/accused Dev Singh. He further stated that in the Village Dhamdev the agriculture land has been divided between his father and uncle. His father also has a land in Kalagarh and they used to come in the Village Dhamdev for sowing and cutting of the crop. In the disputed land, which is in Ritha Tok, they have sown the paddy crop and they have come there to cut the paddy crop. He further stated that on 22.09.1987 at about 1:00 P.M. he along with his brother Bhupal Singh and father Mahendra Singh were threshing the paddy in their field. At that time Smt. Bhagirahti Devi, Smt. Shanta Devi, Smt. Nandi and Smt. Khimuli were also threshing their paddy. When they asked them not to thresh their paddy then these people abused them and threatened them to marpeet. Then Dev Singh and his son Diwan Singh came at the place of occurrence. Dev Singh was armed with gun. The appellant/accused Dev Singh fired on him due to which he received injury on his foot. Then second time Dev Singh fired on Bhupal Singh due to which he received injuries near the stomach and hand. Then they (Shiv Singh and Bhupal Singh) ran away towards the agricultural field of Pan Singh. At the time of occurrence he was wearing a sarong (TEHBAND) and his brother was wearing trousers. Due to these injuries their clothes have become bloodstained. He and his brother have been treated in Gopeshwar Hospital on 23.09.1987 and they admitted in Gopeshwar Hospital. The medical officer has taken out the pellets from his body and from the body of his brother Bhupal Singh and sealed them. He and his brother admitted in the hospital for about one 8 month and they were not able to speak in the hospital. 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 trustworthy, reliable and believable. The statement of this witness is corroborated from the statement of P.W.1 Mahendra Singh, who is also the eyewitness of the case and who has lodged the F.I.R., i.e., Ext.Ka-1. P.W.1 Mahendra Singh has also proved the F.I.R. which was lodged by him. The statement of P.W.3 Shiv Singh is also corroborated from the statement of P.W.2 Pan Singh (eyewitness). 13. P.W.5 is G.S. Pathak, who has stated that on 24.09.1987, he was posted as X-Ray Technician in District Hospital, Gopeshwar. On that day, X-Ray of injured Bhupal Singh and Shiv Singh were conducted by him. X-Ray reports were prepared by Dr. S.K. Gupta, which are Ext.Ka-2 and Ext.Ka-3 and the X-Ray plates are Ext.1 and Ext.2. In the X- Ray, pellets were shown in the body of the injured. 14. P.W.7 is Sarveshwar Prasad, who has stated that on 19.09.1988 he was posted as Patwari in Mahalchoti. He has filed the charge sheet, i.e., Ext.Ka-8 against the appellant/accused and the other co-accused. 15. P.W.8 is Pratap Singh Barthwal, who has stated that on 22.09.1987 he was posted as Patwari in Latoogari. He further stated that the F.I.R. of this case was lodged by Mahendra Singh. On the basis of this F.I.R., Chik F.I.R. was prepared by him, i.e., Ext.Ka-9. The entry was also made in the G.D., copy of G.D. is Ext.Ka-10. On the same day, he visited to the place of occurrence and the injured were taken by him to Gairsen Hospital, where they were medically examined. On 23.09.1987, he recorded the statement of P.W.1 Mahendra Singh and on his pointing out he prepared the site- 9 plan of the place of occurrence, i.e., Ext.Ka-11 and also prepared the FARD of the inspection of the place of occurrence, i.e., Ext.Ka-12. During the course of investigation he recorded the statement of the witnesses. On 16.09.1987, by the order of Nayab Tehsildar, investigation of this case was transferred to another Patwari, Goving Prasad Arya (P.W.9). Order of Nayab Tehsil is Ext.Ka-13. 16. P.W.9 is Goving Prasad Arya (Patwari), who has stated that by the order of Nayab Tehsildar, remaining investigation of this case was entrusted to him. On 20.10.1987, he received the injury report of the injured from P.W.1 Mahendra Singh. On 05.11.1987, bloodstained clothes of the injured-two trousers, cotton undershirt, one lungi, one underwear were taken into possession by him and he prepared the FARD, i.e., Ext.Ka-14. On 28.01.1988, he recorded the statement of the injured Bhupal Singh and Shiv Singh and these witnesses gave their X-Ray reports to him. After that, he was transferred from that area. 17. After that the statement of the appellant/accused and the other co-accused persons were recorded u/s 313 of 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. In reply to Question no.19, the appellant/accused stated that on the date of the incident he was not at home and he came to know that the injured have received injuries in the forest at the time of hunting and he has been falsely implicated in the above said case. However, in defence, he did not produce any documentary evidence but in oral evidence he examined two witnesses D.W.1 Mahendra Singh and D.W.2. Dhan Singh. 18. D.W.1 is Mahendra Singh, who has stated that the appellant/accused Dev Singh and his brother Mahendra Singh 10 are known to him. These two persons are his uncles. Mahendra Singh is living in Bhawar from the last 30-35 years and Dev Singh lives in Village Dhamdev with his family. He has further stated that he was in Panch in the Panchayat in which it was decided that Mahendra Singh will live in Bhawar and Dev Singh will live in Village Dhamdev. 19. D.W.2 is Dhan Singh, who has stated that Dev Singh, who lives in Dhamdev is known to him and his village is at a distance of 2 Kilometer from the village of Dev Singh. He has further stated that on the date of the incident he has gone to take the slates and the stones in Dholdhar near Almora and the Gudal Singh and the appellant/accused Dev Singh had also gone along with him. On 23.09.1987, they have reached back to their houses. He further stated that the people of his area used to take slates and stones from Dholdhar. 20. Sri R.P. Nautiyal, learned counsel for the appellant/accused has confined his statement only up to the point that on the basis of the evidence discussed above only the case u/s 324 I.P.C. is made out. I find substance in the argument advanced by learned counsel for the appellant/accused as it has come in the evidence of P.W.3 Shiv Singh that he received the injuries of pellet on his foot and Bhupal Singh has received the injuries on his hand and near the stomach. The statement of P.W.3 Shiv Singh is corroborated from the statement of P.W.1 Mahendra Singh and P.W.2 Pan Singh. It has also come in the statement of P.W.6 Dr. A.K. Rai that the injuries which were found on the body of the injured Bhupal Singh and Shiv Singh were simple in nature and were not dangerous to life. It has not come in the statement of P.W.3 Shiv Singh that the injuries were caused to him and to his brother-Bhupal Singh with the intention to kill them. From the evidence discussed above, it is proved that the injuries were simple and were not dangerous 11 to life and were not caused to the injured by the appellant/accused with the intention or knowledge to kill them and that by causing these injuries if the injured would die then the appellant/accused would be guilty of murder. Thus from the evidence discussed above, the prosecution has not proved the case u/s 307 I.P.C. but as discussed above the case u/s 324 I.P.C. is proved by the prosecution beyond reasonable doubt. Hence, the appellant/accused is guilty for the offence punishable u/s 324 I.P.C. 21. Learned counsel for the appellant/accused has submitted that the appellant/accused is 84 years’ old and has become blind now and he is unable to walk and is ailing with serious diseases. He further submitted that in the above said offence the appellant/accused has already passed three months in jail. Learned brief holder for the State also conceded to this point after verifying from the records. Hence, learned counsel for the appellant/accused prayed that the appellant/accused may be released on the sentence already undergone by him. 22. After considering the entire facts and circumstances of the case, this Court is of the view that it would be just and proper to release the appellant/accused to the sentence already undergone by him with a fine of Rs.5,000/-. 23. For the reasons discussed above and the facts and circumstances of the case, the appeal is partly allowed. The judgment and order dated 29.03.1991 passed by Sessions Judge, Chamoli in Sessions Trial No.17 of 1989, State of U.P. Vs. Dev Singh & others is hereby quashed and set aside. The conviction u/s 307 I.P.C. and sentence of seven years’ R.I. is set aside. The appellant/accused Dev Singh is convicted of the charge of offence punishable u/s 324 I.P.C. He is sentenced u/s 324 I.P.C. for the sentence already undergone by him with 12 a fine of Rs.5,000/-. In default of payment of fine, he is further sentenced to three months R.I. 24. Let a copy of this judgment along with the record of the trial court be sent back to the trial court concerned for compliance of the order forthwith. (Dharam Veer, J.) 31.10.2008 RG