Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 2104 of 2001 (Old No. 2151 of 1992) 1. Sri Chandra S/o Ishwari Dutt 2. Janardhan Prasad S/o Sri Chand 3. Shashi Kishore s/o Suresha Nand 4. Birendra S/o Shiv Prasad 5. Lalita Prasad S/o Suresha Nand All R/o Village Kurigaon, Patti Aswalsyun, Distt. Pauri Garhwal. ...…………. Appellants Versus The State ...…………. Respondent Mr. R.P. Nautiyal, learned counsel for the appellants. Mr. H.C. Pujari, Addl. Govt. Advocate and Mr. M.A. Khan, Brief Holder for the respondent State. ALONG WITH Government Appeal No. 1175 of 2001 (Old No. 551 of 1993) The State ...…………. Appellant Versus 2 1. Smt. Kamla W/o Suresha Nand 2. Smt. Kalawati W/o Sri Chand 3. Smt. Jaishwari Devi W/o Shiv Prasad 4. Smt. Kaushalya W/o Birendra Prasad 5. Smt. Munni W/o Shashi Kishore 6. Smt. Prabha D/o Sri Chand All residents of Village Kurigaon, Patti Aswalsyun, Distt. Pauri Garhwal. ...…………. Accused / Respondents Mr. H.C. Pujari, Addl. Govt. Advocate and Mr. M.A. Khan, Brief Holder for the appellant State. Mr. R.P. Nautiyal, learned counsel for the respondents. Coram : Hon’ble Prafulla C. Pant, J. Hon’ble Dharam Veer, J. Per Hon. Prafulla C. Pant, J. These two appeals, are directed against the same judgment and order dated 30.11.1992, passed learned Sessions Judge, Pauri Garhwal, in Sessions trial No. 47 of 1989, whereby accused / appellants Sri Chand, Janardhan Prasad, Sashi Kishore, Birendra and Lalita Prasad are convicted under Section 302 read with Section 149, under Section 325 read with Section 149, and under Section 148 of the Indian Penal Code, 1860 (hereinafter referred as I.P.C.) and each one of them is sentenced to under imprisonment for life under Section 302 / 149 of I.P.C.; rigorous imprisonment for a period of three years under Section 325 read with Section 149 of I.P.C. and rigorous 3 imprisonment for a period of two years under Section 148 of I.P.C.. By the same judgment accused / respondents Smt. Kamla, Smt. Kalawati, Smt. Jaishwari Devi, Smt. Kaushalya, Smt. Munni and Smt. Prabha are acquitted of the aforesaid charges. 2) Heard learned counsel for the parties and perused the lower court record. 3) Prosecution story, in brief, is that on 15.06.1989, at about 10:00 P.M., accused namely Sri Chand, Janardhan Prasad, Shashi Kishore, Birendra, Lalita Prasad, Kamla, Kalawati, Jaishwari Devi, Kaushalya, Munni and Prabha, all residents of Village Kurigaon, Patti Aswalsyun, District Pauri Garhwal, armed with KHUKHARI (sharp edged weapon), Danda (rod), sword and stones came to the house of Faras Ram (P.W. 1) and started beating him. The family members of Faras Ram raised hue and cry. But, other villagers had gone to the house of Kalam singh of the same village, who had arranged on that day ‘KATHA’ (Satyanarain Katha). Prosecution case is that accused Birendra, armed with KHUKHARI (sharp edged weapon); Shashi Kishore, armed with DARANTI (sharp edged weapon); Sri Chand, armed with MUNGRA; Lalita Prasad, armed with Lathi; Janardhan Prasad, armed with Lattha of Timura (rod of a tree / plant having thorns) and women accused were armed with stones, started beating Faras Ram. On this Mukesh Chandra (deceased), son of Faras Ram, came to rescue of his father and he was given blow by Birendra on his head. On this Mukesh Chandra got unconscious. Thereafter, Anandi Devi (P.W. 3), wife of 4 Faras Ram, came to the rescue of her husband but she was also given a blow with MUNGRA by accused Sri Chand, fracturing her leg. Finally, Dinesh Chandra, another son of Faras Ram, came to save his father and he was also beaten. Thereafter, Dinesh Chandra made attempt to contact Village Pradhan in the night and next day got lodged first information report (Ext. A –2) with Patwari of Patwari circle Aswalsyun (In the interior hills of Uttarakhand, certain Revenue Officials are given police powers, under U.P. Government Notification No. 494 / VIII –418 –16 dated 7th March 1916). The Patwari registered the crime and prepared the check report. The injured were taken to nearby hospital of Patisain, but in view of the condition of the injured they were sent to District Hospital Pauri. Their injuries were examined on 17.06.1989, by Dr. S.K. Srivastava, who prepared the injury report (Ext. A –15) relating to injuries suffered by Dinesh Chandra; injury report (Ext. A –16) relating to injuries suffered by Mukesh Chandra; injury report (Ext. A –17) relating to injuries suffered by Faras Ram and injury report (Ext. A –18) relating to injuries suffered by Anandi Devi. Out of the injured, Mukesh Chandra later succumbed to the injuries on 18.06.1989. On that very day, Sub Inspector R.C. Sharma (P.W. 7), who was posted at police station Pauri, after taking the dead body of the deceased in his possession prepared the inquest report and other necessary papers (Ext. A –23 to Ext. A –27) and the dead body was sent for postmortem examination. P.W. 2 Dr. D.K. Jain, conducted postmortem examination on 18.06.1989, at about 02:00 P.M., on the dead body of Mukesh Chandra and prepared 5 the autopsy report (Ext. A –1). He opined that the cause of death was coma due to shock and haemorrhage on account on ante mortem injury suffered on head. P.W. 5 Prakash Negi, Patti Patwari (Investigating Officer) interrogated the witnesses, prepared the site plan, recovered the MUNGRA, DARANTI, blood stained clothes and blood stained soil, prepared the recovery memos, and on completion of investigation after arrest of the accused, submitted the charge sheet (Ext. A –28) against all the eleven accused. 4) The Magistrate, it appears on receipt on the charge sheet, after giving necessary copies to the accused as required under Section 207 of Cr.P.C., committed the case to the court of Sessions, for trial. Learned Sessions Judge on 04.12.1989, after hearing the parties framed charge of offences punishable under Section 148, under Section 302 read with Section 149, and under Section 325 read with Section 149 of I.P.C. against all the eleven accused, who pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1 Faras Ram (injured eyewitness); P.W. 2 Dr. D.K. Jain (who conducted the postmortem examination on dead body of Mukesh Chandra); P.W. 3 Anandi Devi (another injured eyewitness); P.W. 4 Raghubir Singh (the witness who reached at the spot on request of Dinesh Chandra, complainant soon after the incident); P.W. 5 Prakash Negi, Patti Patwari (Investigating Officer); P.W. 6 Dr. P.C. Fuloria (who proved the injury reports prepared by Dr. S.K. Srivastava) and P.W. 7 Sub Inspector R.C. Sharma (who prepared the inquest report and other necessary papers). The documentary and oral evidence was put to all the 6 accused, under Section 313 of Cr.P.C., who alleged the same to be false. They alleged that they have been falsely implicated in the crime due to enmity. However, no evidence in defence was adduced. After hearing the parties, the trial court found accused Sri Chand, Janardhan Prasad, Shashi Kishore, Birendra and Lalita Prasad guilty of charge of offences punishable under Section 302 read with Section 149 of I.P.C.; under Section 325 read with Section 149 of I.P.C., and under Section 148 of I.P.C. However, accused Kamla, Kalawati, Jaishwari, Kaushalya, Munni and Prabha were not found guilty and were acquitted of the charge framed against them. After hearing on sentence, each of the convicts namely, Sri Chand, Janardhan Prasad, Shashi Kishore, Birendra and Lalita Prasad were sentenced to undergo imprisonment for life under Section 302 read with Section 149 of I.P.C.; rigorous imprisonment for a period of three years under Section 325 read with Section 149 of I.P.C. and rigorous imprisonment for a period of two years under Section 148 of I.P.C. Aggrieved by said judgment and order dated 30.11.1992, passed by learned Sessions Judge, Pauri Garhwal, in Sessions Trial No. 47 of 1989, convicts filed appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.) on 2nd December 1992, before the Allahabad High Court, where it was admitted on 03.12.1992. On the other hand, the State filed Government Appeal under Section 378 of Cr.P.C. challenging the acquittal of the women accused. The leave was granted by Allahabad High Court on 07.08.1996 and the said appeal was also admitted. Both the appeals are received by this 7 Court under Section 35 of the U.P. Re-organization Act, 2000, for their disposal. 5) Before further discussion, it is pertinent to mention here, the injuries suffered by Dinesh Chandra (complainant); Mukesh Chandra (deceased); Faras Ram (P.W. 1) and Anandi Devi (P.W. 3). Injury report (Ext. A – 15) prepared by Dr. S.K. Srivastava, who appears to have examined the injuries on the person of Dinesh Chandra on 16.06.1989, at about 07:15 P.M., found following two injuries on the person of the injured: i) “Lacerated wound of size 1.5 cm X 0.5 cm X skin deep over left scapula, blood clot of dark brown colour was present. ii) Bruise of size 4 cm X 2 cm over left tebial skin approximately 10 cm from patellar tendon left. (colour dark brown). Both the injuries were simple and found to have been caused by blunt object.” On the person of Mukesh Chandra (later died) at the time he was brought to District Hospital Pauri, on 16.06.1989, Dr. S.K. Srivastava, found and recorded the injuries at 04:20 P.M., and prepared injury report (Ext. A –16) which shows following injury on his person: “a lacerated wound over head between two parital prominences size 4.5 cm X 0.8 cm X scalp deep. Colour dark brown because of blood clot which was present over the wound. Advised X-ray of skull.” 8 The same Medical Officer (Dr. S.K. Srivastava) examined injuries on the person of Faras Ram (P.W. 1) on 16.06.1989, at 04:15 P.M., and prepared the injury report (Ext. A –17) which shows following injuries on his person: i) “Lacerated wound of size 2.5 cm X 1.0 cm X bone deep over lower jaw (chin). Blood clot of dark brown colour present. Wound is towards right side of chin. ii) Tenderness over chin mark. Depression over the chin suggests fracture of lower jaw. Clinical X-ray advised of lower jaw. iii) Lacerated wound over right forearm, U shaped, size 1 cm X 2 cm. Fascia deep. Colour dark brown. Tenderness marked. Advised X-ray. iv) Lacerated wound over left ankle over medial malleolus 4 cm X 1 cm X skin deep. Colour dark brown because of the blood clot. v) A curved lacerated wound of size 10 cm X 4 cm X scalp deep over right occipital prominence, colour dark brown because of the blood clot. vi) An incised wound of size 4 cm X 1.5 cm X bone deep over left side of back approximately 4.5 cm from inferior angle of left scapula.” The injury recorded by Dr. S.K. Srivastava in Ext. A –18, on the person of Anandi Devi (P.W. 3) on 16.06.1989, at about 04:10 P.M., discloses following injury: 9 (i) “A punctate wound of pin head size over of right tebia about 6 cm from right medial malleolous. Marked swelling over right foot and right ankle. Tenderness is marked. There is depression at the site of the wound. The underlying appears to be fractured. Advised X-ray. 6) The supplementary medical report (Ext. A –19) prepared by Dr. S.K. Srivastava proved by P.W. 6 Dr. P.C. Fuloria discloses linear fracture on the right parital bone on the head of Mukesh Chandra (deceased). The supplementary medical report (Ext. A-20) by the same Medical Officer proved by Dr. P.C. Fuloria (P.W. 6) shows fracture in the jaw, mendible right side at two places of injured Faras Ram (P.W. 1). As such, injury No. 2, quoted above, relating to this injured person was found to be grievous in nature. Supplementary medical Ext. A –21 relating to Smt. Anandi Devi (P.W. 3) prepared by Dr. S.K. Srivastava, proved by P.W. 6 Dr. P.C. Fuloria, discloses compound fracture on the right leg in the lower 3rd part of the injury. As such, she too has suffered a grievous injury. 7) After death of Mukesh Chandra, on his dead body postmortem examination was conducted by Dr. D.K. Jain (P.W. 2), who prepared the autopsy report (Ext A –1) and found following ante mortem injuries: i) “Stitched wound on the top of skull 13 cm above from left ear size 4 cm in length, bone deep, edges of the wound are adherent with each other. Dark clotted blood present. 10 Dissecting the scalp there is linear vertical fracture of right parietal bone 11 cm in length. On removing the top of skull there is subdural haematome on right cerebral haemosphere in an area of 10 X 10 cm. Blood clotted and dark in colour. ii) Multiple abraded contusion on the anterior aspect of right leg in an area of 20 cm X 2 cm. Upper end of injury is 9 cm below the right knee joint. Colour is bluish black .” Dr. D.K. Jain (P.W. 2), who conducted the autopsy on the dead body opined that the deceased had died of coma due to head injury because of hard and blunt object. (Stitching of wound suggests the treatment given to the deceased before his death). 8) Now, we come to the oral testimony of the eyewitnesses produced by the prosecution before the trial court. P.W. 1 Faras Ram, the injured eyewitness has stated that accused Sri Chand, Kalawati, Shashi Kishore, Munni, Kamla, Lalita Prasad, Kaushalya, Birendra Prasad, Jaishwari Devi, Prabha and Janardhan are known to him as they belong to his village. He further states that he was not in talking terms with the accused, as there was some dispute relating to land with them, for the accused had trespassed the land. P.W. 1 Faras Ram further stated that on 15th June1989, he was in his village as he had come on leave from Kollar gold field where he used to work as a security man. According to the witness on that day there was ‘SATYANARAIN KATHA’ in the house of Kalam 11 Singh and most of the villagers had gone there. P.W. 1 Faras Ram has stated that at about 10:00 P.M., Birendra, armed with KHUKHARI (sharp edged weapon); Shashi Kishore, armed with DARANTI (sharp edged weapon); Sri Chand, armed with MUNGRA (wooden blunt object); Lalita Prasad, armed with a Danda; Janardhan Prasad, armed with stick of Timura (a plant bearing thorns) and the women accused, armed with stones, came to the house of the witness (Faras Ram), and started beating him. P.W. 1 Faras Ram further states that he was given blow on his person by accused Birendra, Shashi Kishore, Janardhan. He further states he suffered grievous injuries. The witness has further stated that his son Mukesh Chandra (deceased) came for his rescue, but accused Birendra Prasad given a blow on his head (probably from the handle side of Khukhari) and he fell unconscious. Thereafter, his wife Anandi Devi (P.W. 3) came to save Faras Ram and she too was given a blow with MUNGRA by accused Sri Chand, and she suffered fracture in her leg. She also fell down thereafter. Dinesh Chandra, another son of the deceased, came there but he too was injured. According to the witness he (Faras Ram) got unconscious after the incident and regained his consciousness in District Hospital Pauri. There, he came to know that his son Mukesh had died on 18.06.1989 due to the injuries suffered by him. 9) P.W. 3 Anandi Devi, another injured has narrated the same story as narrated by her husband P.W. 1 Faras Ram. She has corroborated the entire story mentioned above. This witness has apart from giving eye account version of the incident proved First Information Report (Ext. A –2) 12 lodged by her son Dinesh Chandra. She has stated that Dinesh has joined the Indian Army and it is not possible for him to come to court, as he was engaged in some course (probably the training course). P.W. 4 Raghubir Singh is an independent witness, who states that on 15.06.1989, Dinesh Chandra (injured and complainant) came to him and told about the incident on which he immediately rushed to the spot and found Faras Ram, his wife Anandi Devi and son (Mukesh Chandra) in a seriously injured condition. P.W. 4 Raghubir Singh has also stated that Patti Patwari (Investigating Officer) took blood stained soil and simple soil and blood stained piece of sack from the spot in his presence. 10) The statement of the injured eyewitness P.W. 1 Faras Ram and P.W. 3 Anandi Devi read with the injury reports, quoted above, clearly establish the charge against accused / appellant Birendra, relating to offence punishable under Section 302 of I.P.C. relating to commission of murder of Mukesh Chandra, and offence punishable under Section 325 of I.P.C. relating voluntarily causing grievous hurt to Faras Ram (P.W. 1). Also, from the above evidence on record it is proved that accused Sri Chand, Janardhan Prasad and Shashi Kishore are guilty of offence punishable under Section 325 read with Section 34 of I.P.C. for voluntarily causing grievous hurt with common intention to Faras Ram (P.W. 1) and Anandi Devi (P.W. 3). 11) Learned counsel for the accused / convicts argued that no role has been assigned to accused Lalita Prasad by any of the eyewitnesses and he has been falsely implicated 13 due to enmity. Having closely scrutinized the evidence on record, we find substance in the submission of learned counsel for the accused / convicts that it cannot be said that Lalita Prasad has actually been present or had participated in commission of crime and possibility of his false implication cannot be ruled out. Therefore, he is entitled to the benefit of reasonable doubt. Similarly, the women accused namely Smt. Kamla, Smt. Kalawati, Jaiswari Devi, Kaushalya, Munni and Prabha, have not been assigned any role in commission of crime as is clear from the evidence of the eyewitnesses P.W. 1. Faras Ram and P.W. 3 Anandi Devi as such they are also entitled to benefit of reasonable doubt which is already given to them by the trial court. We concur with the finding of the trial court that these women accused, who are members of family of the convicts, could also have been implicated falsely with the real culprits. As far as the charge of offence punishable under Section 148 of I.P.C. is concerned, since it is not established beyond reasonable doubt that five or more persons have formed unlawful assembly and the accused who have committed crime are only four in number, namely Birendra, Sri Chand, Janardhan Prasad and Shashi Kishore, as such, the convicts are entitled to be acquitted from the charge of offence punishable under Section 148 of I.P.C. 12) Learned counsel for the accused / convicts argued that the motive of commission of crime is not clear and as such evidence adduced against all the accused / convicts cannot be said to be trustworthy. We do not find any substance in the submission of learned counsel for the accused / convicts for the reason that where there is a direct 14 eyewitness account of the injured witnesses, even if there is no motive clarified by the prosecution for commission of crime, it does not create any reasonable doubt in the prosecution story. Apart from this, P.W. 1 Faras Ram has clearly stated that there had been a land dispute between two families involved in the incident. Next contention advanced on behalf of the accused / convicts is that complainant Dinesh Chandra, who was one of the injured eyewitness was not examined by the prosecution and withholding of such a witness creates doubt as to the manner in which prosecution has suggested the incident has taken place. Had there been no explanation for non- production of Dinesh Chandra (injured witness) there could have been some substance in the submission advanced on behalf of the accused / convicts, but P.W. 3 Anandi Devi has clarified in her statement that Dinesh Chandra has joined the Indian Army and he was undergoing some course (probably the training course) due to which he was unable to attend the court on the day of evidence. In these circumstances, mere non-production of one of the injured witnesses, in our opinion, does not create any reasonable doubt in the prosecution evidence adduced against the accused / convicts Birendra, Sri Chand, Shashi Kishore and Janardhan Prasad. 13) Mr. R.P. Nautiyal, learned counsel for the accused / convicts pointed out that there is no source of light disclosed in the first information report by the prosecution witnesses and that the first information report itself is a delayed one. Having closely scrutinized the evidence on record, we found that the parties are neighbours and known 15 to each other very well, as such, there was no problem with the injured in identifying the accused / convicts in the night when they were assaulted. As to the delay in lodging the first information report it has been explained by the prosecution that after the incident took place at 10:00 P.M. in the night, the injured Dinesh Chanda tried to contact the Village Pradhan,who had gone to ‘STAYANARAIN KATHA’. Since, it was night time he could have lodged the first information report with the Patwari only the next day i.e. 16.06.1989. We cannot close our eyes to the geographical region of District Pauri Garhwal where the incident had taken place and in such hilly terrain delay in first information report of couple of hours, in our opinion, does not create any reasonable doubt in the truthfulness of the entire prosecution story. 14) It is also contended on behalf of the accused / convicts that the prosecution has not explained as to why the injuries of the injured witnesses were not examined in Patisain from where they were taken to District Hospital, Pauri, where their injuries were recorded by the Medical Officer Dr. S.K. Srivastava. This again, in our opinion, does not help the accused / convicts Birendra, Sri Chand, Janardhan Prasad and Shashi Kishore as it is nowhere found that the Medical Officer was available at Patisain. 15) For the reasons, as discussed above, we are of the view that the Appeal No. 1175 of 2001 (old No. 551 of 1993) filed by the State, is liable to be dismissed, as we do not find any error of law committed by the trial court in acquitting the women accused (respondents of said appeal) 16 giving them benefit of reasonable doubt. As far as the Criminal Appeal No. 2104 of 2001 (old No. 2151 of 1992) is concerned, the same deserves to be allowed partly to the extent of conviction and sentence recorded by the trial court in respect of the accused / appellants Lalita Prasad, whom no role has been assigned by the eyewitnesss and his false implication with the other accused found guilty, cannot be ruled out. His conviction and sentence recorded by the trial court is set aside. As far as the remaining accused / convicts namely Birendra, Sri Chand, Janardhan Prasad and Shashi Kishore are concerned, their conviction and sentence recorded by the trial court in respect of the offence punishable under Section 325 is found to be correct and the same does not require any interference by this Court. The conviction of Birendra in respect of offence punishable under Section 302 of I.P.C. and sentence awarded to him is also not liable to be interfered with, but it cannot be said that other accused / convicts namely Shashi Kishore, Janardhan Prasad and Sri Chand had common intention with Birendra in committing murder of Mukesh Chand, who happened to come to rescue of Faras Ram (P.W. 1) whom they were beating mercilessly. Therefore, the conviction and sentence recorded by the trial court in respect of the offence punishable under Section 302 of I.P.C. against these three accused namely Sri Chand, Janardhan Prasad and Shashi Kishore is set aside. They are acquitted of said