IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 376 of 2007 Girish Ram and another. ……….Appellants. Versus State of Uttarakhand. ....…. Respondent. Present : Sri R.S. Sammal, Sri Dinesh Chauhan, Advocate for the Appellants. Sri P.S. Bohara, Brief Holder for the State. Sri K.D. Tripathi, Sri Bhuwnesh Joshi, Advocate for the complainant. Hon’ble Servesh Kumar Gupta, J. 1. The challenge in this appeal is to the judgment and order dated 21.09.2007 rendered by Sessions Judge, Almora in Sessions Trial No. 3 of 2006 wherein appellants Girish Ram and Prem Kumar were held guilty for the offence under Section 304 part II read with Section 34 of the Indian Penal Code (hereinafter called as “IPC”) and they were sentenced to undergo 10 years rigorous imprisonment whereas third accused Rajendra Singh, who was also tried in the said sessions trial was acquitted of the charge, by giving him benefit of doubt. Initially, all these accused persons were chargesheeted and tried for the offence under Section 302 IPC but the trial ended in holding appellants guilty for the offence stated above instead of Section 302 IPC. 2. The prosecution was initiated by Rahul Joshi, son of deceased. He lodged First Information Report on 12.09.2005 at 03.00 p.m. at local patwari circle stating therein that his father (Girish Chandra Joshi) accompanied with all the accused persons on dated 11.09.2005 to Lamgara market, which is the nearest one, located at a distance of few kilometers from his village. In that market, deceased Girish Chandra Joshi 2 consumed booze along with all accused persons. At the time of returning home, all the accused persons manhandled his father and left him in the house of Diwan Singh, son of Har Singh, located in village Baghar, Kanwal Dhura. This house was lying on the way while accused were returning to their respective houses. Deceased Girish Chandra Joshi was left there in subconscious state where in the intervening night of 11/12 September, 2005 he succumbed to the injuries caused by accused persons on his body. This First Information Report is Exhibit Ka-1, chik whereof is Exhibit Ka-3. Inquest report is Exhibit Ka- 4 wherein witnesses named have found injuries upon body of deceased. Autopsy was conducted in the District Hospital, Almora by Dr. S.C. Pant. He has recorded ante mortem injuries on the body of deceased on 13.09.2005 at 01.45 p.m. and has opined that cause of death was head injury, which made deceased into coma. This report is Exhibit Ka- 2. It would be worthwhile to reproduce the injuries, which were found on the body of deceased, which are as under: “i. Lacerated wound size 1 cm X 0.5 cm X skin deep at the corner of left eye. ii. Contusion 4 cm X 3 cm at the temporal region left side of the head just behind the ear. Two bones were found fractured beneath this injury. iii. Contusion 3 cm X 2 cm at the outer side of the right upper arm 4 cm above elbow. iv. Abrasion 4 cm X 1 cm in the neck. v. Contusion 1 cm X 6 cm at the left temple. Temporal bone beneath temple was found fractured.” 3. After investigation, chargesheet (Exhibit Ka- 12) was submitted against all the three accused persons. 3 Prosecution has examined three fact witnesses viz. PW1 Diwan Singh, PW2 Rekha, wife of Diwan Singh, PW 3 Mohini Devi, wife of deceased Girish Chandra Joshi. Rahul Joshi, reporter of First Information Report was examined as PW4; Dr. S.C. Pant was examined as PW5 and Trilok Singh Bisht, the Investigating Officer was examined as PW6. 4. Statement of witnesses and statement of all accused persons under Section 313 Cr.P.C. were recorded. Girish Ram has explained that he runs a fair price shop. Deceased Girish Chandra Joshi used to purchase his ration from his shop. His wife came to his shop, asking for ration irregularly but he denied to supply the same, so this became cause of annoyance to implicate him. Prem Kumar, another accused has stated that deceased was Gram Pradhan at the time of incident and his act was complained of by him to Chief Development Officer, this caused his false implication in crime. DW1 Trilok Singh has also been produced in defence. After conclusion of the trial, the trial Judge has found the appellants guilty for offence as stated above where against this appeal has been preferred. 5. Having heard learned counsel for the parties, it appears that deceased Girish Chandra Joshi was Pradhan of Gaon Sabha “Malari” and one of the accused appellants Girish Ram was the license holder of ration shop, on behalf of Government and he had to distribute ration i.e. wheat, sugar, kerosene oil, rice etc. at controlled price of Government, not only to the residents / families of sub village Barsina, Baghar and Malari but also to several other labourers, who were engaged on contract for various development work of the Government. These all places i.e. Barsina, Malari and Baghar are sub Villages (called Toks in local dialect) and Gaon Sabha of 4 these sub villages is single, known as ‘Malari Gaon Sabha’ and deceased Girish Chandra Joshi was Pradhan thereof. 6. When appellant Girish Ram was reluctant, or rather did not distribute ration fairly and honestly, particularly to the labourers then being Pradhan of the Gaon Sabha, Girish Chandra Joshi intervened in the matter and asked Girish Ram to distribute the ration as per rules, otherwise he will make complaint to the proper authority regarding his dishonesty in distributing the ration. These all became a motive in the mind and heart of Girish Ram, which he nurtured against deceased. The difference between two escalated to the extent of resulting the instant crime. Appellant Girish Ram when noticed that Girish Chandra Joshi (deceased) is the biggest stunt in his illegal profit hunting business through ration shop, then he reared a strong motive to render a lesson to Pradhan Girish Chandra Joshi and in order to achieve his motto, he grabbed an opportunity in local market of Lamgara, which is at a distance of few kilometres from Malari or Barsina on 11.09.2005. 7. Deceased Girish Chandra Joshi, as usual, was present in that market where appellants accompanied him. They collectively enjoyed the alcoholic drink and when they were returning together under inebriated state from Lamgara to their respective sub villages, it was a golden opportunity for Girish Ram to have revenge from deceased and to teach him a lesson for his intervention, in distribution of ration to the villagers as well as labourers. Witnesses Diwan Singh (PW1) and Rekha (PW2) wife of Diwan Singh are ocular witnesses. They have proved that all the three accused persons were beating severely to deceased Girish Chandra Joshi, near the temple of Tok Baghar where their residence is nearby. Girish Chandra Joshi since sozzled was not in a position to resist all 5 the three accused persons effectively. Even, he was also not in a position to walk on foot properly so accused Prem Singh with the succour of other accused persons brought him in his (Diwan Singh) house almost dragging. Even having been dragged in the house all the three accused continued to beat him with fists, kicks for a short distance. Prem Singh shouldered sozzled Girish Chandra Joshi while bringing him in the house of Diwan Singh. Since Girish Chandra Joshi was in such inebriated state that he was unable to move independently and more so, severely beaten by accused persons, therefore, he was made to lie on a cot by Diwan Singh in one of his rooms. This was done by Diwan Singh, just being inspired with the feeling of humanity and benevolence, because he had acquaintance with Girish Chandra Joshi from before. Accused persons, thus, left the scene of occurrence and proceeded to their village Malari. 8. Severely beaten Girish Chandra Joshi, lying on the cot in the house of Diwan Singh, drifting in and out of consciousness, asked Diwan Singh to inform his family members at Barsina. It was natural for Diwan Singh to honour the request of his Pradhan Girish Chandra Joshi. So he proceeded to communicate the message of Girish Chandra Joshi to his family members at Barsina. While on the way to Barsina, he could hardly walked a short distance, came across the accused persons again and on the inspiration given by them, he too consumed the neat liquor, which made him unable to move further. Having done this mischief accused persons left for their village Malari. This time darkness grew and inebriation of Diwan Singh, did not allow him to proceed further to village Barsina or return to his own village Baghar, so he sat in the mid way. 6 9. Now, there at Barsina when deceased Girish Chandra Joshi did not return to his house even by 06.00 p.m. while in ordinary course of day, he used to return upto 05.00 p.m., this made his wife and children anxious. By that time, it was quite dark, so wife and the eldest son of Girish Chandra Joshi named Rahul Joshi, having kerosene lantern / lamp in their hand, left the house in search of Girish Chandra Joshi. In the side of thoroughfare, they found Diwan Singh was sitting. Since they had notice of the fact that Girish Chandra Joshi had friendly term with Diwan Singh so they asked him regarding whereabouts of Girish Chandra Joshi. He narrating the entire episode asked them not to worry as he has left Girish Chandra Joshi sleeping comfortably in his house. Since, there was a dense forest and distance to Baghar was almost two and half kilometres, so it was thought proper to cover the shorter distance to Barsina through a thin forest. This way, Diwan Singh came to the house of Girish Chandra Joshi at Barsina and had rest there in the intervening night of 11/12 September, 2005. At the very wee hours, Rahul Joshi along Diwan Singh, left Barsina to Village Baghar. 10. It can be mentioned that in the hills, it is usual practice to wake up very early in the morning and retire to the bed early. Besides, it was natural for the eldest son Rahul Joshi, to become anxious regarding welfare of his father, so he left his house early to village Baghar along with Diwan Singh. When they came to the place where Girish Chandra Joshi was made lying on cot, they found him no more. Rahul Joshi went to his village back and again returned to village Baghar with few villagers including his uncle. The matter was reported to law authorities and after investigation, chargesheet was submitted and trial ended in conviction of Girish Ram and Prem Singh as 7 aforementioned while the trial Judge acquitted Rajendra Singh (third accused) on the ground of his being lame and handicapped. The learned Judge was of the view that Rajendra Singh (third accused) could not be held guilty beyond reasonable suspicion and benefit of doubt was extended to him, making order of his acquittal. 11. Having gone through the judgment impugned, this Court finds that the same has been based upon an elaborate and meticulous analysis and discussion of the entire testimony of the witnesses. Learned Judge has rendered all conceivable reasons very cogently and coherently while arriving at the conclusion that accused persons Girish Ram and Prem Singh are guilty of the charge mentioned above. Initially, chargesheet was submitted against all the accused persons under Section 302 IPC and charge was also levelled against them accordingly, but the learned Sessions Judge has very rightly not convicted accused Girish Ram and Prem Singh under Section 302 IPC and found them guilty under Section 304 Part II IPC. 12. Doctor opined that cause of death was coma due to head injuries. This postmortem examination was conducted on 13.09.2005 at 01.45 p.m. and the doctor was of the view that deceased had breathed his last, some time one and half day before and obviously, it is consistent with time of incident held in the intervening night of 11/12 September, 2005. Besides two ocular witnesses, who have proved that accused persons were severely beating the deceased and continuously giving blow of kicks and fists upon his body while dragging him in the house of Diwan Singh. There are other formidable evidences available on the record to prove the guilt of accused persons. 8 13. Undoubtedly, learned Sessions Judge was right in holding that accused were not guilty for the offence under Section 302 IPC because intensity of their act and manner in which it was done, was not enough to infer the guilt of accused persons to the extent of offence punishable under Section 302 IPC but it was well within their knowledge that their severe beating, particularly, on the head and temporal region upon the body of inebriated person is likely to cause death. Although, they did not have intention to cause his death or to cause such bodily injury, as is likely to cause death but certainly they had knowledge that their manner of beating and causing injuries at head and temporal region of sozzled Girish Chandra Joshi may likely to cause his death and it was ante mortem injury nos. 2 and 5, which were proved to be fatal to Girish Chandra Joshi, who breathed his last in that fateful night. The conduct of PW 2 Rekha, aged about 25 years was quite natural. Being an Indian lady of that surrounding, she along with a lap child even did not cook food that evening for herself and went to sleep in a separate room along with his baby. His husband was not at home. It was quite dark evening in the month of September, in the rural area where even other houses are located at a considerable distance, so it was not unnatural on her part to go asleep without cooking food. But the fact remains that she is ocular witness of the crime done by accused persons and her testimony being independent one is trustworthy. PW3 Mohini Devi, wife of deceased, has deposed that twenty days’ before the incident, accused Girish Ram came to her house and there was altercation between her husband and Girish Ram. She has proved Girish Ram, Prem Singh and Rajendra Singh are friends. She has ratified that subject giving rise to this altercation was improper distribution of ration by Girish Ram and her husband warned accused Girish Ram to distribute the 9 ration as per rules properly otherwise, adverse action will be taken against him. This was the cause for grousing animosity in the heart of accused Girish Ram. PW3 Mohini Devi has deposed the entire narration of leaving her house in the late evening of 11.09.2005 along with son Rahul Joshi holding kerosene lantern in her hand and coming across Diwan Singh while he was sitting intoxicated in the way. Diwan Singh disclosed the entire chain of incident to Mohini Devi and her son Rahul Joshi and since this disclosure was soon after the occurrence so that way their evidence is admissible being res gastae. PW4 Rahul Joshi has also corroborated the version of PW3 Mohini Devi. PW5 Dr. S.C. Pant has proved the postmortem examination and ante mortem injuries, found on the body of the deceased. PW6 Trilok Singh, Patwari has proved other formal papers in the case. 14. I have also gone through statement of defence witness DW 1 Trilok Singh, which is quite shallow and unsubstantial, thus, not believable at all. Hence, in view of appreciation of evidence as above, this Court hereby finds that appeal, preferred by accused appellants, is devoid of merits. The appeal is dismissed. Judgment and order dated 21.09.2007 passed by learned Sessions Judge is hereby affirmed. Bail of both the appellants is hereby cancelled. Their sureties are discharged. Let the appellants be taken into gaol forthwith to serve out the sentence and this will be ensured by the court below and then inform this Court accordingly. (Servesh Kumar Gupta, J.) 22.11.2011 SKS