IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 1402 of 2001 Old No. 458 of 1998 1. Kanhaya, S/o Bhullan 2. Asharfi (since deceased), S/o Ganga Vishnu 3. Bhullan, S/o Jhojha @ Sudama 4. Hare Ram, S/o Ram Das 5. Chuttu, S/o Ram Das All R/o Village Virendra Nagar, Police Station Sitarganj, District Udham Singh Nagar ……….Appellants Versus State of Uttar Pradesh (now State of Uttarakhand) …………Opposite Party Smt. Pushpa Joshi, Advocate, present for the appellants. Shri S.S. Adhikari, A.G.A., present for the State. Coram: Hon’ble Prafulla C. Pant, J. Hon'ble Nirmal Yadav, J. Oral: Hon'ble Prafulla C. Pant, J. This appeal, preferred under section 374 of Code of Criminal Procedure (for short Cr.P.C), 1973, is directed against judgment and order dated 26.02.1998, passed by II Additional Sessions Judge, Nainital, in Sessions Trial No. 416 of 1997, whereby said court has convicted the appellants namely Kanhaya, Asharfi (since deceased), on the 2 charge of offences punishable under section 302/149, 307/149 Indian Penal Code, 1860. Each one of the two has been sentenced to imprisonment for life (under section 302/149),rigorous imprisonment for a period of three years (under section 307/149 IPC) and rigorous imprisonment for a period of two years (under section 148 IPC). Accused/appellants Bhullan, Hare Ram,and Chuttu have been convicted under section 147, 302/149, and 304/149, and each one of them has been sentenced to imprisonment for life (under section 302/149), rigorous imprisonment for a period of three years (under section 307/149 IPC) and rigorous imprisonment for a period of two years (under section 147 IPC). 2. Heard learned counsel for the parties and perused lower court record. 3. Prosecution story, in brief, is that on 16.04.1997, at about 7:00 P.M., P.W.1 Akalu was sitting in his shop situated in village Virendra Nagar within the limits of police station Sitarganj, District Udham Singh Nagar (earlier part of 3 District Nainital). His brother Sahdev (deceased), his wife Prabhawati (P.W.2) and his daughter Kaushalya (P.W.3) were also sitting there. Accused/appellants Kanhaiya and Asharfi were hurling abuses at someone from near the shop of the complainant (P.W.1 Akalu) on which P.W.2 Smt. Prabhawati asked them not to do so. This enrazed the two accused Kanhaiya and Asharfi, who with intention to kill Sahdev caused injuries through their knives on his person , and his wife Prabhawati. When P.W.3 Kaushalya attempted to save her parents accused/appellants Bhullan, Hare Ram, Chuttu, and one Fulena ( a juvenile whose case was separated) came there and started beating Akalu (P.W.1) and Kaushalya (P.W.3). They too suffered injuries on their person. When they raised alarm, P.W.4 Salgu and other villagers reached at the spot. P.W.1 Akalu, lodged first information report (Ex. A1)(for short FIR) at police station Sitarganj at 07:32 P.M. On the basis of said report check report (Ex. A3), was prepared by the police and necessary entry was made in the General Diary. A crime no. 253 of 1997, was registered relating to offences punishable under section 147, 148, 149, 307 IPC, against accused 4 Kanhaya, Asharfi, Bhullan, Hare Ram, Chuttu, and Fulena. Investigation was taken up by P.W.5 Sub- Inspector Gurdayal Singh. He interrogated the witnesses. Injured Akalu (P.W.1) and Kaushalya (P.W.3) were taken to near by Primary Health Center , Sitarganj, where their injuries were recorded by P.W.6 Dr. R.C. Sharma, who prepared the injury reports (Ex. A21 and Ex. A22).The other two injured namely Sahdav and his wife Prabhawati (P.W.2) who had suffered the knife blows and taken straight to Community Health Center, Khatima, where P.W.7 Dr. P.C. Pandey, examined the injuries on the person of Sahdev and Prabhawati, and prepared the reports (Ex. A22 and Ex. A24). Since the condition of Sahdev was serious, he was immediately referred for further medical treatment to Bareilly. On the next day i.e., 17.04.1997, at late hours, Sahdev succumbed to the injuries suffered by him. At about 1:30 A.M., the police took the dead body of Sahdev (deceased) in their possession, and prepared inquest report (EX. A2). The police further prepared police form no. 13 (Ex. A9), letter to Chief Medical Officer (Ex. A10), Sketch of the body (Ex. 11) and sample seal (Ex. A13) and other 5 papers. The dead body of Sahdev was sent for post-mortem examination. P.W.8 Dr. K.S. Gupta, conducted post-mortem examination on 18.04.1997, at about 3:30 P.M., and recorded as many as four ante-mortem injuries on the dead body of the deceased. He prepared autopsy report (Ex. A25). According to said medical officer the deceased had died due to shock and hemorrhage as a result of ante-mortem injuries. After the death of Sahdev, the case was converted relating to offence punishable under section 302 IPC. On completion of investigation, the Investigating Officer submitted charge sheet (Ex. A18) against the accused/appellants Kanhaya, Asharfi, Bhullan, Hare Ram, Chuttu, and Fulena for their trial in respect of offences punishable under section 147, 148, 149, 307, and 302 IPC. 4. The Judicial Magistrate, on receipt of the charge sheet, after giving necessary copies to the accused, as required under section 207 Cr.P.C., appears to have committed the case to the court of sessions (except that of Fulena who was a juvenile). Learned II Additional Sessions Judge, on 17.11.1997, after hearing the parties, framed charge 6 of offences punishable under section 147, 302/149, and 307/149 against accused/appellants Bhullan, Hare Ram, and Chuttu. A separate charge was framed against accused/appellants Asharfi and Kanhaya in respect of offences punishable under section 148, 302/149, 307/149 IPC. All the accused/appellants pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W.1 Akalu (complainant and injured eye witness), P.W.2 Smt. Prabhawati (injured eye witness and widow of deceased), P.W.3 Km. Kaushalya (injured eye witness, and daughter of the deceased), P.W.4 Salgu (eye witness), P.W.5 Sub-Inspector Gurudayal Singh, Investigating Officer , P.W.6 Dr. R.C. Sharma, P.W.7 Dr. P.C. Pandey, and P.W.8 Dr. K.S. Gupta, (who conducted post mortem on the dead body of the deceased). Oral and documentary evidence was put to the accused under section 313 Cr.P.C., in reply to which they alleged that they have been falsely implicated due to enmity. In defence, statement of D.W.1 Rishipal was got recorded on behalf of the accused/appellants. The trial court, after hearing the parties, found that the prosecution has successfully proved charge 7 framed against accused/appellants, and convicted them accordingly. They were sentenced as mentioned above. Aggrieved by said judgment and order dated 26.02.1998, passed by II Additional Sessions Judge, Nainital, in Sessions Trial no. 415 of 1997, this appeal was filed by the convicts namely Kanhaya, Asharfi, Bhullan, Hare Ram, and Chuttu before Allahabad High Court on 10.03.1998. The appeal was admitted there on 11.03.1998. The appeal is received by this Court under section 35 of U.P. Reorganization Act, 2000 (Central Act, 29 of 2000) for its disposal. 5. Before further discussion we think it just and proper to mention the ante-mortem injuries recorded by P.W.8 Dr. K.S. Gupta on the dead body of the Sahdev on 18.07.1997, at 3:30 P.M. Following are the ante-mortem injuries recorded in autopsy report (Ex. A25) by said Medical Officer:- (i) Incised wound 2.5cm X .5cm X chest cavity deep on the left side of chest at 9'O clock position underneath 4th and 5th rib. (ii) Incised wound 2cm X 0.5cm X 8 abdominal cavity, right side of abdominal 2.5cm away from umblicus. (iii) Incised wound 2cm X .5cm X chest cavity deep on left side chest lateral aspect 9cm below armpit left underneath. (iv) Incised wound 1cm X 0.5cm X muscle deep on left side abdominal region. P.W.8 Dr. K.S. Gupta, after post-mortem examination opined that the deceased has died due the shock and hemorrhage as a result of ante- mortem injuries. Corresponding injuries were recorded by P.W.7 Dr. P.C. Pandey on the person of Sahdev when he was brought on 16.04.1997, at abut 9:50 P.M., in Community Health Center, Khatima, mentioned by him in Ex. A23. 6. P.W.7 Dr. P.C. Pandey has further recorded the injuries found on person of Prabhawati (P.W.2) on 16.04.1997, at about 10:30 P.M. The same are reproduced from injury report (Ex. A24) prepared by said medical officer which are as under:- 9 (i) 3cm X 1/2cm X 1.5cm deep, incised wound over part of right thigh about 7cm below anterior superior iliac spine. Oozing of blood coming from the wound. P.W.7 Dr. P.C. Pandey in aforesaid report (Ex. A24) opined that the above mentioned injury suffered by Prabhawati could have been caused by sharp cutting object. The nature of injury was observed to be fresh. 7. P.W.6 Dr. R.C. Sharma, has observed, on 16.04.1997, following injury on the person of Km. Kaushalya (P.W.3) as mentioned in his report (Ex. A21) ' A 2.5cm X 1.0cm X .5 cm oblique lacerated wound is present on occipital region of scalp. Fresh bleeding is oozing from the wound area. A large haemotoma is found around the wound area. No sign of head injury seen.' The medical officer (P.W.6) Dr. R.C. Sharma observed that injury was caused by some hard blunt object. Nature of injury was fresh. 10 8. P.W.6 Dr. R.C. Sharma on 16.04.1997, further examined injury on person of P.W.1 Akalu on Primary Health Center, Sitarganj. Said injury is being produced below:- (i) 4.0cm X1.0cm oblique semilunar abraded contusion is present on right lower abdomen. Skin is having bluish dicolouration. No haemotoma is seen. (ii) Complaint of pain in back left and right shoulder. 9. Now we come to the oral testimony of the eye witnesses. P.W.1 Akalu (complainant and eye witness) has stated that on the day of incident, he alongwith his brother Sahdev (deceased) and Prabhawati (P.W.2) and their daughter Km. Kaushalya (P.W.3) were sitting in his shop. He saw that accused/appellants Kanhaiya, Asharfi, Bhullan, Hare Ram, Chuttu, and Fulena came there. He has further stated that Kanhaiya and Asharfi were armed with knives and other accused armed with lathis. The accused Asharfi was hurling abuses on someone on which Prabhawati and Sahdev objected and asked them not to do so. On this, the accused/appellants 11 Kanhaiya and Asharfi inflicted knife blows on the persons of Sahdev and Prabhawati. Other accused gave lathi blows. This witness has stated that he also suffered injury. The witness has further stated that witness Salgu (P.W.4) and others came at the spot. P.W. 1 Akalu further proved the report (Ex. A1) lodged by him at the police station. 10. The statement of P.W.1 Akalu is corroborated by P.W.2 Prabhawati who has narrated the prosecution story in more details. P.W.3 Kaushalya has also deposed before the trial court and further corroborated the statement made by P.W.1 Akalu and P.W.2 Prabhawati. All these three witnesses are injured eye witnesses. Their presence at the spot is natural and trust worthy. P.W.4 Salgu has also supported the prosecution story by saying that he saw Asharfi and son of Bhullan (i.e. Kanhaiya) were causing injuries with knives. The witness states that thereafter (probably frightened) he ran away from the spot. The witness has further stated that injuries caused by knives were suffered by Akalu's brother (Sahdev) and Akalu's sister-in-law (Prabhawati). All the four witnesses were 12 subjected to cross-examination but nothing came out which shakes their credibility. 11. On behalf of appellants it is argued that the first information report is ante- time. It is pointed out that P.W.1 Akalu in his cross-examination has admitted that before lodging of the FIR, his son Dharmendra went to the police station and informed the police about the incident and the police came at the spot. Thereafter all injured went to the police station and then P.W.1 Akalu lodged the FIR. It is also pointed out that check report and the entry in General Diary were made at the same time. We have scrutinized the evidence on record. It is clear from the record that after the FIR was lodged, the two injured were got medical examined at Primary Health Center, Sitarganj, and the other two who had suffered knife blows were sent Community Health Center, Khatima, on the same day. It has also came on the record that the injuries of the injured complainant was got examined after lodging of the FIR. In the circumstances we do not find that the FIR is ante- time. 13 12. Smt. Pushpa Joshi, learned counsel for the appellants submitted that P.W.1 Akalu, P.W.2 Prabhawati have clearly stated that they had no enmity with them, and the accused were hurling abuses on someone else. As such, there were no motive on the part of the accused to give knife blows on the persons of deceased and prabhawati. On going through the entire statement of the witnesses of fact we find that since Prabhawati and the deceased objected to hurling abuses by the accused Kanhaiya and Asharfi the two accused got enrazed and gave knife blows on the person of Sahdev (deceased) and his wife Prabhawati. The prosecution story as narrated by the three eye witnesses makes it clear as to why the accused gave knife blows on the person of Sahdev and Prabhawati. 13. It is contended on behalf of the appellants that there is no evidence of unlawful assembly being formed by the five accused/appellants. In this connection, attention of this Court is drawn to the statement of P.W.3 Km. Kaushalya who has stated in her cross-examination that only two accused Kanhaiya and Asharfi were hurling 14 abuses, and other accused were in their houses. It is also stated by this witness in her cross- examination that it is only Kanhaiya and Asharfi caused knife injuries on the person of Sahdev and his wife Prabhawati, and the other accused came from their houses with lathis. After going through the statement of P.W.3 Kaushalya, we are in agreement with the statement of the learned counsel for the appellants that it is not proved on a record that five accused/appellants formed unlawful assembly with the common object to commit crime and came at the spot. That being so, we are of the view that accused/appellants Bhullan, Hare Ram, and Chuttu cannot be held liable for commission of murder of Sahdev and attempting to commit murder of Prabhawati by taking help of section 149 IPC. Therefore, the charge in respect of offences punishable under section 147, 302/149, 307/149 IPC cannot be said to have been proved as against the three accused/appellants Bhulla, Hara Ram, and Chuttu beyond reasonable doubt. 14. As far as accused/appellant Asharfi is concerned due to his death during pendency of 15 this appeal, the same stood abated. 15. For the reasons as discussed above, we are of the view that the appeal of accused/appellant no. 1 Kanhaiya is liable to be dismissed but that of accused/appellant no. 3Bhullan, accused/appellant no. 4 Hare Ram, and accused/appellant no.5 Chhuttu deserves to be allowed. Accordingly, the conviction and sentence recorded by the trial court vide his order dated 26.02.1998, in session trial no. 415 of 1997, as against accused Kanhaiya is affirmed. He is on bail. His bail is cancelled. However the appeal of other three accused/appellants Bhullan, Hare Ram, and Chhuttu is allowed. Their conviction and sentence recorded by the trial court is set aside. They are on bail. They need not to surrender. Appeal of accused/appellant Asharfi stood abated. Lower court record be sent back to the trial court to make accused/appellant Kanhaiya serve out remaining part of his sentence, as awarded by the trial court affirmed by this Court. (Nirmal Yadav, J.) (Prafulla C.Pant, J.) Dt. 13.09.2010 Parul