RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.1744 OF 2001 (OLD NO.242/1994) Brij Gopal & others ……… Appellants Versus The State ……… Respondent Dated: July 08, 2009 Mr. Navneet Kaushik, learned counsel for the appellant no.1 Mr. S.C. Tyagi, learned counsel for the appellant no.4 Mr. M.A. Khan, learned brief holder for the State HON. DHARAM VEER, J. This criminal appeal, preferred by the appellants 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 16.2.1994 passed by Additional Sessions Judge, Roorkee in S.T. No.351/1991, State Vs. Brij Gopal & others, whereby the learned Addl. Sessions Judge convicted the accused/appellants Brij Gopal, Braham Chand, Hari Om and Indraj under Sections 323 and 323 r/w Section 34 of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced each of them to undergo rigorous imprisonment for a period of one year u/s 323 IPC and further one year’s R.I. u/s 323 r/w 34 IPC. Both the sentences were directed to run concurrently. However, the aforesaid accused/appellants were acquitted of the charge under Sections 307/34, 342/34 and 504 I.P.C. by the trial court. 2. I have heard Sri Navneet Kaushik, learned counsel for the appellant no.1, Sri S.C. Tyagi, learned counsel for the appellant no.4 as well as Sri M.A. Khan, 2 learned brief holder for the State. Perused the entire material available on record. 3. During the pendency of this appeal the appellant no.2 Brahm Chand and appellant no.3 Hari Om were reported to be died. Hence, the appeal preferred by the accused/appellants Brahm Chand and Hari Om stood abated vide order of this High Court dated 21.5.2009. 4. In brief, the prosecution case is that on 2.9.1987 in the morning Rati Ram along with his son Manga, Om Kumar and Om Pal had gone to clean the drain in his field. Meanwhile, at about 10.30 A:M, the accused/appellants Brij Gopal, Hari Om, Braham Chand and Indraj, who were having animosity with them due to litigations pending between him and the accused/appellants, by hurling abuses came in the field. Brij Gopal was armed with pistol and iron rod, Hari Om was armed with Gudhala and Braham Chand and Indraj were armed with Lathi. All the accused persons threatened to their life. The accused/appellant Brij Gopal fired on Mange (P.W.4) but he could narrowly escaped. The other accused Hari Om, Braham Chand and Indraj started assaulting Rati Ram and his son Manga with Lathies, Gudhala and Saria. Meanwhile, both sons of Rati Ram named Om Kumar and Om Pal ran towards village due to fear of these accused persons. Rati Ram raised hue and cry. On hearing this, Manmohan and Soraj reached on the spot, who saw this incident and also saved their life from the accused/appellants. After that all the four accused took Manga to their house where they locked him and placed pistol and cartridges near him. After sometime they released Manga. Thereafter, the villagers brought him (Mange) in the village and Anil 3 Kumar of his village took Manga to Manglore hospital and hospitalized him there. It was further stated that when Manga came in sense then he told him that all the four accused persons detained him inside the room and in order to implicate him placed pistol and cartridges near him. With the same averments, Rati Ram scribed the report through Vinod Kumar and sent it to Police Station, Manglore on 2.9.1987 at 12:45 P:M. That report is Ext.Ka-1. On the basis of report (Ext.Ka-1), Chik F.I.R. (Ext.Ka-3) was prepared by Constable Clerk Krishan Dutt Gautam. The necessary entries were also made in the G.D., carbon copy of which is Ext.Ka-4. The investigation of this case was entrusted to Sub Inspector Yogendra Singh (P.W.5). On 2.9.1987 at 01:00 P:M, injured Mange was got medically examined by Dr. N.D. Arora, Medical Officer (P.W.8) and the injury report thereof was prepared, which is Ext.Ka-7. Injured Rati Ram was medically examined by Dr. Harish Chandra, Medical Officer (P.W.9) on 3.9.1987 at 12:35 P:M and his injury report was prepared which is Ext.Ka-8. The I.O., during the course of investigation, prepared the site-plan (Ext.Ka-2) of the place of occurrence, recorded the statements of the witnesses and also took the plain and blood stained soil into possession and thereafter prepared the FARD, which is Ext.Ka-5. On completion of the investigation, he submitted the charge sheet against the accused/appellants under Sections 307/342/323/504 IPC. That charge sheet is Ext.Ka-6. 5. Judicial Magistrate, Roorkee, on receipt of the charge sheet, committed the case to the Court of Sessions on 6.9.1991, after giving necessary copies to the accused/appellants, as provided u/s 207 Cr.P.C. 4 6. It seems from record that the case was transferred to Additional Sessions Judge for hearing and disposal according to law. 7. On 21.2.1992, learned Addl. Sessions Judge, Haridwar framed the charge of offence punishable under Sections 307/34, 323/34, 504 and 342/34 I.P.C against the accused/appellants. The charge was read over and explained to the accused/appellants, who pleaded not guilty and claimed to be tried. 8. In order to prove its case, the prosecution has examined P.W.1 Man Mohan (declared hostile); P.W.2 Soraj (declared hostile); P.W.3 Rati Ram, injured eyewitness; P.W.4 Manga, injured eyewitness; P.W.5 Yogendra Singh, Investigating Officer of the case; P.W.6 Vinod Kumar, scriber of the report; P.W.7 Rati Ram Verma, Pharmacist; P.W.8 Dr. N.D. Arora, Medical Officer, who medically examined the injured Manga and P.W.9 Dr. Harish Chandra, Medical Officer, who medically examined the injured Rati Ram. 9. Thereafter the statements of the accused/appellants were recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to each of them in question form, who have denied the allegations made against. In defence, they have filed Ext.Kha-1 to Ext.Kha- 4 as documentary evidence and in oral evidence, D.W.1 Dharamveer Gupta was examined. 10. After appreciating the entire evidence available on record and hearing learned counsel for the parties, learned Additional Sessions Judge, Roorkee vide his judgment and order dated 16.2.1994 convicted and sentenced the accused/appellants as stated above. 5 Feeling aggrieved by the aforesaid judgment and order the accused/appellants have preferred the present appeal. 11. Before further discussion, it is pertinent to mention the injuries found on the body of the injured Manga, who was medically examined by Dr. N.D. Arora (P.W.8) on 2.9.1987 at 01:00 P:M and the injury report (Ext.Ka-7) thereof was prepared, which is reproduced as under:- (i) Lacerated wound on the right parietal area 6 cm x 1 cm x bone deep, 11 cm away from the right ear bleeding. (ii) Black right eye 5 cm x 3 cm present upper eye lid swollen eye. (iii) Bleeding from nostril present, contusion on the nostril, skin is abraded, 6 cm x 2 cm red in color present suspected fracture of nasal bone, X-ray advised. (iv) Contusion on the right arm 6 cm x 2 cm horizontally placed, 9cm above the elbow joint. (v) Contusion on the right arm 6 cm x 2 cm, 6 cm above elbow joint. (vi) Contusion on the right leg and thigh front side 16 cm x 3 cm obliquely placed 14 cm away from knee joint. (vii) Contusion on the right leg 12 cm x 2 cm front aspect, red in color, 4 cm away from knee joint. (viii) Lacerated wound on the right side of knee joint front aspect 1 cm x 0.5 cm, bleeding. (ix) Contusion on the right leg 10 cm x 2 cm obliquely placed 6 cm below the knee joint. (x) Contusion on the right ankle joint 14 cm x 3 cm, red in color, swollen joint, X-ray advised. 6 (xi) Contusion on left ankle joint, 12 cm x 2 cm red in color lower parietal swollen present on outside. (xii) Contusion on the left ankle joint 13 cm x 3 cm present on inner aspect, swollen present, X-ray advised. (xiii) Contusion on knee joint 4 cm x 1 cm front aspect red in color. (xiv) Contusion on the knee joint 2 cm x 2 cm red in color present on inner side. (xv) Contusion on the left forearm 14 cm x 2 cm swollen wrist joint, suspected fracture on underlying bone. (xvi) Contusion on left forearm 10 cm x 2 cm red in color obliquely placed, red in color. Remarks:- (i) All injuries are fresh (ii) Caused by blunt weapon (iii) X-ray of Skull, right leg, left leg and left forearm, X-ray advised, kept under observation. 12. Injured Rati Ram was also examined by Dr. Harish Chandra, Medical Officer on 3.9.1987 at 12:35 P:M and his injury report (Ext.Ka-8) was prepared, which is reproduced as under:- (i) Abrasion 1½ x 3/10 cm over left side front to parietal region of skull 11 cm above left eye brow. Advised X-ray. (ii) Abraded contusion 6 cm x 4 cm over medial aspect of thigh right, 8 cm above right knee joint. (iii) C/o Pain over spines of lumber region. Tenderness present and advised X-ray. 7 Opinion:- Injury no.1 and 3 kept under observation, advised X-ray, Injury no.2 is simple. Injury no.1 and 2 are about one day old. Duration of injury no.3 cannot be ascertained. All injuries are caused by blunt object. 13. It is also important to mention here that Smt. Kailasho, wife of the accused/appellant Brij Gopal also got injured in the said incident. Her medical examination was conducted by Dr. N.D. Arora, Medical Officer on 2.9.1987 at 12:15 P:M. The injury report Ext.Kha-1 was prepared, which is reproduced as under:- (i) Lacerated wound on the scalps on the right parietal area 6 cm x 2 cm obliquely placed 10 cm away from right ear, from front to backward. (ii) Contusion on the occipital area right side, 6 cm x 3 cm swollen. (iii) Contusion on left forearm 6 cm on dorsal side of wrist joint swollen suspected fracture of underlying bone. (iv) Contusion on the left arm 10 cm x 3 cm swollen, 8 cm below the shoulder joint swollen suspected fracture hairline, X-ray advised. (v) Contusion on the left side of chest 13 cm x 2 cm, obliquely placed in infra axillary area 14 cm below the right arm grit. (vi) Contusion on the right buttock. Remarks:- (i) All injuries are caused by blunt weapon. (ii) Fresh in duration. (iii) X-ray of right arm and forearm including wrist joint. 8 14. Supplementary report (Ext.Kha-2) of Smt. Kailashi was also prepared, which is reproduced as under:- (i) Fracture on right parietal bone seen extending to occipital bones also of skull hair line fracture. Remarks:- Injury no.1 of Kailasho is grievous in nature. 15. Accused/appellant Brij Gopal was also examined by Dr. N.D. Arora, M.O. on 2.9.1987 at 11:30 A:M. The injury report (Ext.Kha-3) of Brij Gopal is reproduced as under:- (i) Wound on the right arm 1.5 cm x 0.5 cm x depth not probed 5 cm away from the top of elbow joint. (ii) Contusion on the right forearm 10 cm x 4 cm obliquely placed red in color swollen 6 cm away from elbow joint. (iii) Contusion on the right forearm 5 cm x 3 cm, 6 cm above wrist joint red in color swollen. (iv) Contusion on the right arm 12 cm x 2 cm horizontally placed 10 cm below the shoulder joint. (v) Contusion on the right arm 10 cm x 2 cm obliquely placed 6 cm above elbow joint. (vi) Contusion on left forearm 10 cm x 3 cm obliquely placed 8 cm below the elbow joint. (vii) Contusion on the left forearm and wrist joint 10 cm x 3 cm obliquely placed on the dorsal side of wrist joint suspected fracture of underlying bone, X-ray advised. (viii) Contusion on the head on right parietal area 4 cm x 3 cm swollen 12 cm away from the right ear. (ix) Contusion on the right side of abdomen and pelvic bone 16 cm x 2 cm red in color swollen. 9 (x) Contusion on the leg of right side 16 cm x 8 cm obliquely placed on outside 22 cm away from the knee joint, skin is abraded. (xi) Contusion on the right side 12 cm x 2 cm obliquely placed 15 cm below the iliac bone crest. Skin is abraded and blood oozing present. (xii) Contusion on the left lower leg 10 cm x 2 cm obliquely placed red in color 16 cm above the knee joint present on the outer side. (xiii) Contusion on left buttock 10 cm x 2 cm obliquely placed red in color. (xiv) Contusion on the left hand 6 cm x 2 cm skin is abraded. Blood oozing present. Remarks:- (i) All injuries are fresh. (ii) Caused by blunt weapon (iii) X-ray advised to injury no.8, 6, 5 & both forearm. 16. To prove the injury reports Ext.Ka-7 and Ka-8 of the injured Manga and Rati Ram, the prosecution has examined Dr. N.D. Arora (P.W.8), Dr. Harish Chandra (P.W.9) and Rati Ram Verma, Pharmacist (P.W.7). 17. P.W.8 Dr. N.D. Arora has stated that on 2.9.1987 he was posted at Primary Health Centre, Manglore. On that day, he medically examined the injured Mange Ram (P.W.4) and found the above-noted injuries on his body. In his opinion all the injuries were fresh and were caused by some blunt weapon. He has proved the injury report Ext.Ka-7. In the cross- examination he has stated that on the same day i.e. on 2.9.1987 at 12:15 he also medically examined Smt. Kailasho and prepared the injury report which is Ext.Kha-1. The supplementary report (Ext.Kha-2) of Smt. 10 Kailasho was also prepared by him. In his opinion, injury no.1 i.e. head injury of Smt. Kailasho was grievous and even death could be possible due to that injury. He further stated that on 2.9.1987 at 11:30 A:M he also conducted the medical examination of the accused Brij Gopal and prepared his injury report which is Ext.Kha-3. 18. P.W.9 Dr. Harish Chandra Duwa has stated that on 3.9.1987 at 12:35 P:M he medically examined the injured Rati Ram and found the above-noted injuries on his body. He has proved the report Ext.Ka-8. 19. P.W.7 Rati Ram Verma, Pharmacist, Civil Hospital, Rookee has stated he is posted in the aforesaid post from 7½ years and Dr. Harish Chandra Duwa (P.W.9) was also posted in the same hospital in the year 1987. He further stated that on that day Dr. Harish Chandra Duwa had medically examined the injured Rati Ram. He has proved the injury report Ext.Ka-8. 20. Further to prove its case, the prosecution has examined Man Mohan (P.W.1), who did not support the prosecution case and declared hostile. P.W.2 Soraj also did not support the prosecution case and declared hostile. 21. P.W.3 is Rati Ram whose statement was recorded in the trial court on 22.3.1993 in which he has stated that the said incident had taken place 5½ years back. On that day at 10:30 A:M, he along with his sons Manga, Om Pal and Om Kumar had gone to clean the drain in the field. The accused/appellants Brij Gopal, Hari Om, Braham Chand and Indraj of his village, with whom their litigations were going on, by hurling abuses came to them. Brij Gopal was armed with pistol and iron 11 rod, Hari Om was armed with Gudhala and Braham Chand and Indraj were armed with Lathies. All the accused persons threatened to their life. The accused/appellant Brij Gopal fired on his son Manga (P.W.4) but he could narrowly escaped. The aforesaid accused assaulted him and his son Manga with Lathies, Gudhala and Saria. Due to fear, his sons Om Kumar and Om Pal fled from the place of occurrence. Man Mohan (P.W.1) and Soraj (P.W.2) came on the spot. They saw the incident and also saved his life. His son Mange was becoming unconscious. Thereafter all the four accused persons took his son away and locked him inside the room and placed pistol and cartridges near him. After sometime they released his son. Then Anil, Trilok Singh and some other persons of his village brought his son to him. When his son came in sense then he told the entire incident to him. Thereafter, he (Rati Ram) scribed the report through Vinod Kumar (P.W.6) and sent it to police station. He has proved the report Ext.Ka-1. He further stated that his and his son’s medical examination was done. In the cross-examination he has stated that he cannot tell the date, month and year of the said incident. Prior to this incident, litigations were going on between him and the accused/appellant Brij Gopal. He further stated that the accused/appellants Brij Gopal and Hari Om had beaten him and his son Mange was also beaten by these accused. Mange has received number of injuries but there was only one head injury which Hari Om had caused him. After receiving the injuries, Mange had become unconscious and blood was oozed out. ** eq>s cztxksiky o gfj vkse us ekjk FkkA ekaxs dks Hkh vUgha yksxksa us ekjk FkkA esjs xqe pksVsa yxh FkhA xqe pksV 3&4 gksaxhA ekaxs dks cgqr pksVsa Fkh exj flj esa [kqyh gqbZ ,d gh pksV FkhA ekaxs ds pksV gfj vkse us ekjh FkhA ekaxk pksV yxus ij csgks’k gks x;k] [kwu fudyk FkkA 12 In his deposition, he firstly stated that he went to the police station at 10:30 A:M then he said that he went at 11-11:30 A:M. He further stated that Vinod had gone to police station to lodge the report. Manga was taken to hospital by Vinod (P.W.4) and Trilok. Fkkus ij ge 10%30 cts x;s fQj dgk 11&11%30 cts nksigj dks Fkkuk x;s FksA eq>s /;ku ugha fd eSa Fkkus esa dc x;k FkkA mlh fnu x;k Fkk ;k ckn esa x;k FkkA ?kVuk okys fnu ekaxk Fkkuk x;k FkkA fQj dgk fouksn Fkkuk fjiksVZ ysdj x;k FkkA vLirky esa ge vyx&vyx x;s FksA ekaxk igys x;k FkkA eSa ,d fnu ckn esa vk x;k FkkA ekaxs dks Fkkus ij cksxh ij Mkydj iqfyl ys x;h Fkh fQj dgk fouksn o f=yksd ekaxk dks vLirky esa ys x;s FksA** He further stated that the medical examination of Manga was done at 11:00 A:M and on the next day his medical examination was done. 22. P.W.4 is Manga whose statement was recorded in the trial court on 22.3.1993 in which he has stated that the said incident had taken place 5½ years back. He has corroborated the statement of his father Rati Ram (P.W.3) regarding the said incident. In the cross-examination, he has stated that the accused/appellant Brij Gopal has fired on him but he could saved his life. Accused Hari Om has inflicted a blow of Gudhala on the left side of his head and rest of the accused have assaulted him with Lathies. He further stated that he had not become unconscious, he was in sense. Man Mohan (P.W.1) and Soraj (P.W.2) have reached at the place of occurrence first. 23. P.W.5 Yogendra Singh has stated that on 2.9.1987 he was posted as Sub Inspector at Police Station, Manglore. The investigation of this case was entrusted to him. During the course of investigation, he recorded the statements of the witnesses, prepared the site-plan (Ext.Ka-2) and took the plain and blood stained 13 soil from the place of occurrence and thereafter prepared the FARD, which is Ext.Ka-5. He further stated that the Chik F.I.R. (Ext.Ka-3) of the case was prepared by Constable Clerk Krishan Dutt Gautam and the entry in the G.D. was also made by him. He has proved the carbon copy of the G.D. Ext.Ka-4. After completing the investigation, he submitted the charge sheet against the accused/appellants, which is Ext.Ka-6. 24. P.W.6 Vinod Kumar has stated that on 2.9.1987, he had written the report of the said incident on the dictation of Rati Ram (P.W.3) He has proved the report Ext.Ka-1. 25. Thereafter the statements of the accused/appellants were recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to each of them in question form, who have denied the allegations made against them. In reply to question no.7, appellant Brij Gopal has stated that Rati Ram, Manga, etc. had committed Marpeet with him and his wife, whose litigation is pending in the court and due to that animosity Rati Ram has implicated him in false case. He further stated that in defence he had assaulted Manga in his own house. In reply to question no.7, appellant Indraj has stated that he is the real nephew of Brij Gopal and due to this reason, Rati Ram has falsely implicated him in the said case. In defence, they have Ext.Kha-1 to Ext.Kha-4 as documentary evidence and in oral evidence, D.W.1 Dharamveer Gupta was examined. 26. D.W.1 Constable Dharam Veer Gupta has stated that Constable Hari Dutt Gautam was posted with him at Haridwar. He further stated that the Case Crime 14 No.157 A u/Ss 147/148/307/452/323 was registered at Police Station, Manglore on 2.9.1987. The Chik F.I.R. of the aforesaid case was prepared by Const. Krishan Dutt Gautam, certified copy i.e. Ext.Kha-4 of which is filed. 27. Learned counsel for the accused/appellants has argued that the prosecution has not proved the case beyond reasonable doubt against the accused/appellants and the trial court has convicted the accused/appellants only on the basis of presumption and surmises. I find force in the argument advanced by learned counsel for the accused/appellants, due to following reasons:- a) Rati Ram (P.W.3), in the cross-examination, has stated that the accused/appellant Brij Gopal and Hari Om had caused injuries to him and his son Manga was also assaulted by these two accused only. He further stated that the head injury received by Manga was caused by the accused Hari Om. (Hari Om reported to be died and his appeal has been abated). b) Rati Ram has stated that Brij Gopal was armed with pistol and iron rod and he fired on his son Manga but his son could narrowly escaped. On the other hand, in the statement recorded in S.T.No.682/88 (certified copy of statement was filed in the trial court), Rati Ram has stated that Brij Gopal was only armed with pistol, however, no such injury was found on the body of Rati Ram or on the body of Manga, which creates a doubt in the prosecution story. c) In the F.I.R. (Ext.Kha-4) it was stated that on 2.9.1987 at 10:00 A:M Brij Gopal was working in the field of Mohar Singh meanwhile Manga armed with country made pistol, his brother armed with Lathi, his father Rati Ram, his one relative Satish Kumar armed with country made pistol along with two other persons who 15 were also armed with Lathies, with the intention to kill Brij Gopal, came in the field. All the aforesaid persons attacked on Brij Gopal. In order to save his life, Brij Gopal ran towards his house. The aforesaid persons also approached him and entered into the house of Brij Gopal. Manga fired on Brij Gopal but he narrowly escaped. When the wife of Brij Gopal came to save him then the aforesaid persons also brutally assaulted her. It was further stated that in defence, the accused Brij Gopal caused injuries to Manga with Lathi. Report of that incident was lodged by the son of Brij Gopal on 2.9.1987 at Police Station, Manglore and the case was registered as Case Crime No.157 A u/Ss 147/148/307/452/323. d) Rati Ram got medically examined on 3.9.1987 at 12:35 P:M and his injuries were found simple. He did not examine himself on the same day i.e. on 2.9.1987. There is no explanation from the prosecution’s side that why the medical examination of Rati Ram was conducted after 27 hours of the said incident, which creates a doubt in the prosecution story. e) Rati Ram has stated that he sent the report to police station through Vinod Kumar (P.W.4) but a perusal of the G.D. (Ext.Ka-4) reveals that Smt. Roshni Devi, wife