IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO. 1566/2001 (Old No. 1609/1998) Kishan Lal & Others ……… Appellants Versus State of U.P. ………. Respondent Mr. Mohd. Azim, Advocate, for the appellants. Mr. P.S. Bora, Brief Holder, for the State. 1st August, 2011 Hon’ble Servesh Kumar Gupta, J. The challenge in this appeal is the judgment and order dated 12.8.1998 rendered by the Special Judge/Additional Sessions Judge, Naintial In Sessions Trial No. 73/1996, whereby the accused appellants Kishan Lal, Umesh and Chandra Pal were found guilty for the offence of Section 304 Part II read with Section 34 IPC and they were sentenced to undergo rigorous imprisonment for five years each. 2. The incident occurred on 4.5/10.1995 at about 9.15 pm, when the informant Pratap Singh being the Secretary of Ram Lila Committee was busy in organizing the function of Ram Lila in his village. He was told by one Bhajan Lal that Jagdish, brother of Pratap Singh, has gone towards river side under inebriated state. Pratap Singh was not inclined to fetch his brother and told that he himself will return to home when the intoxication becomes ineffective. But Bhajan Lal expressed his keenness to see Jagdish. So on persuasion of Bhajan Lal, Pratap Singh along with Bhajan Lal, Heera Singh, Pooran Singh, Rakesh and Rewati Prasad went towards the river. They found that 2 in the halfway, accused Kishan Lal, Umesh and Chandra Pal, resident of same village, were coming catching hold of Jagdish. Accused Chandra Pal gave a blow of kick on the chest of Jagdish in the witness of Pratap Singh and his other companions who were going to fetch the deceased from the jungle. At this, Pratap Singh commented “when you people are belabouring Jagdish in their presence, you certainly might have beaten him at the riverside”. The accused persons replied in affirmative and threw challenge to Pratap Singh and others to do whatever they like and told that this Jagdish has touched the modesty of Smt. Phoolwati, wife of Kishan Lal. So, he has been belaboured by them. Pratap Singh and his companions got rid of Jagdish from the accused persons and sent him to his home. They returned to Ram Lila. After an hour, Smt. Vimla, wife of Jagdish, informed the informant Pratap Singh that Jagdish’s physical condition has worsened. Hearing this, Pratap Singh, Pooran Singh, Kalyan Singh, Rewati Prasad, Ganesh and Heera Singh put Jagdish in a tractor trolley and brought him to Kashipur Government Hospital, where Jagdish breathed his last. 3. In the same intervening night at about 2.15 am, the FIR was lodged in the police station. On next day, autopsy was conducted and after investigation the chargesheet was submitted against the accused appellants. 4. After examination of the fact witnesses Pratap Singh (PW1), Bhajan Lal (PW2), besides formal witnesses Dr. P.N. Tandon (PW3), SI Shiv Kumar Tyagi, I.O. (PW4) and Constable Laxmi Chand (PW5), the accused persons were convicted by the trial court as stated above. Feeling aggrieved, the appellants have preferred this appeal. 3 5. Having gone through the evidence on record and after hearing the learned Counsel for the appellants as well as the learned State Counsel, I find that the learned Trial Court has appreciated the evidence of fact very elaborately and in right perspective. PW1 Pratap Singh, who is the real brother of the deceased, has proved the incident stating that in the intervening night of 4/5.10.1995, when he was busy in organizing the Ram Lila in the village, he on getting information that his brother Jagdish in sozzled position has gone towards the river, went along with Bhajan Lal, Pooran Singh, Heera Singh, Rakesh and Rewati Prasad to fetch Jagdish, the deceased. On halfway, they found that the accused persons, the resident of the same village, getting hold of deceased Jagdish were bringing him almost in a dragging state. Accused Chandra Pal gave a blow of kick in front of Pratap Singh and other companions on the chest of Jagdish and they admitted that since he has outraged the modesty of Smt. Phoolwati, wife of Kishan Lal, hence Jagdish has been belaboured by them even before. However, Jagidsh was jettisoned from the clutches of the accused persons and was managed to send to the home. After an hour almost, wife of Jagdish informed Pratap Singh regarding the deteriorating physical condition of Jagdish, whereupon he was shifted to the hospital and in the hospital he breathed his last. Doctor declared him dead. 6. In the autopsy report Ex. Ka-3, the following ante mortem injuries were found on the body of Jagdish: (i) Multiple contusion of various size crossing each other 30 cm x 18 cm on the left side of body and up to posterior middle besides in 4 the area of anterior auxiliary below the ribs in the bosom. (ii) Contused swelling 2 cm x 2 cm on the occipital region. (iii) Abrasion 1 cm x 5 cm in the middle of chin. (iv) No injury at forehead. 7. Doctor has proved that in the occipital region, below the skin, the blood was present in the clotted position in the area of 1 cm x 1 cm. In the opinion of the doctor, the death was caused due to excessive flowing of the blood and mental shock, which was due to the burst of spleen on account of injury no. 1. Doctor has also opined that the injury number (i) was sufficient in the ordinary course of nature to cause death. 8. PW2 is Bhajan Singh, who accompanied Pratap Singh at that fateful night while they were going to fetch Jagdish from the riverside and the accused persons gave a blow as stated above in front of Bhajan Singh also. He is the eyewitness and fully corroborates the deposition whatever has been made by PW1 Pratap Singh. 9. There is no enmity of Pratap Singh or Jagdish with any of the accused persons. So is the case with Bhajan Singh. It is true that the Trial Court in its conclusion opined that the accused persons did not have any intention to cause death of Jagidsh, but the only motive of them was to teach a lesson to the deceased because he has outraged the modesty of Smt. Phoolwati, wife of Kishan Lal. This Court also is in agreement with the said finding of the Trial Court. 5 10. It has been contended on behalf of the learned Counsel for the appellants that other witnesses, namely, Pooran Singh, Narpat, Rewati and Leela Singh, who were accompanying Pratap Singh, have not been examined by the prosecution. This contention is not acceptable at all because it is a settled law that prosecution need not to examine all the eyewitnesses and the prosecution case cannot be thrown out on the ground that there were certain other eyewitnesses who could have been examined, but not have been examined by the prosecution. So multiplicity of the witnesses is of no value. Bhajan Singh is quite an independent witness and resident of same village. He has fully corroborated the statement of PW1 Pratap Singh. 11. Another argument on behalf of the appellants is that there is minor discrepancy on the point of manner in which the deceased was being brought by the accused persons towards the village. In the FIR, it has been written that the deceased was being brought catching hold by the accused persons, while in the deposition of the witnesses, it has come that Jagdish was being brought almost dragging. This is no contradiction at all because for dragging, catching hold is a pre-requisite. Without catching hold of the deceased he could not have been dragged. This was almost a natural state of affairs because the deceased was in sozzled state and it was not possible on the part of the accused persons to bring him in a normal manner. However, this Court do agree that the accused persons did not have knowledge that by belabouring Jagdish by giving a blow of kick on his bosom, the injury will be caused of such a nature which will be sufficient in the ordinary course of nature to cause his death. So for want of knowledge of causing such bodily injury, much less the intention, this 6 Court is of the opinion that even Section 304 Part II of IPC is not attracted in the instant case. Undoubtedly, the hurt which was caused by the accused persons by giving a blow of kick on his chest as well as the pre-hand beating at the riverside had endangered the life of the deceased and so he died in the hospital, and in such circumstances, the punishment for the offence of Section 325 IPC i.e. voluntary causing grievous hurt is attracted. 12. In view of the above, this appeal is partly allowed and the sentence awarded by the Trial Court for the offence of Section 304 Part II read with Section 34 IPC is converted to the punishment under Section 325 IPC read with Section 34 IPC. The convicts appellants Kishan Lal, Umesh and Chandra Pal are sentenced for the offence of Section 325/34 IPC with three years rigorous imprisonment along with fine of Rs. 5000/- each, in default of fine, they will undergo further rigorous imprisonment for three months. The sentence is modified as above. Appellants are on bail. Their bail bonds are cancelled. They shall be taken into custody forthwith to serve out the sentence as awarded above. 13. Let a copy of this judgment and order be sent to the lower court for compliance. Lower court record be sent back. (Servesh Kumar Gupta, J.) 1.8.2011 Prabodh