RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.1732 OF 2001 (OLD NO.413/1994) Rati Ram & three others ……… Appellants Versus The State …… Respondent Dated: July 08, 2009 Mr. Rajendra Singh, learned counsel for the appellants 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.682/1988, State Vs. Satish & others, whereby the learned Addl. Sessions Judge convicted the accused/appellant Rati Ram under Sections 148, 324, 323 r/w 149, 325 r/w 149 and 452 of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced him to two years’ R.I. u/s 148 IPC, two years’ u/s 324 IPC, one year’s R.I. u/s 323/149 IPC, three years’ R.I. u/s 325 r/w 149 and three years’ R.I. u/s 452 IPC. The accused/appellant Om Kumar was convicted under Sections 147, 324/149, 323/149, 325/149, 452 IPC and was sentenced to one year R.I., two years’ R.I., one year R.I., three years’ R.I., three years’ R.I., respectively. The accused/appellants Manga and Satish were convicted under Sections 148, 324/149, 323/149, 325/149, 452 IPC and were sentenced to two years’ R.I., two years’ R.I., one year R.I., three years’ R.I., three years’ R.I., respectively. All the sentences were directed to run concurrently. 2 2. I have heard Sri Rajendra Singh, learned counsel for the accused/appellants as well as Sri M.A. Khan, learned brief holder for the State. Perused the entire material available on record. 3. In brief, the prosecution case is that on 2.9.1987 Shyam Sunder (PW5) S/o Brij Gopal (PW1) lodged the F.I.R. in the police station with the averments that on 2.9.1987 at 10:00 A:M, his father Brij Gopal was working in the field of Mohar Singh (PW2), meanwhile, accused/appellant Manga armed with country made pistol, brother of Manga armed with Lathi, Rati Ram armed with Ballam and Satish Kumar armed with country made pistol and two unknown persons armed with Lathies came in the field. All the aforesaid persons threatened his father and attacked on him. In order to save his life, his father ran towards his house. The accused persons also ran behind him and entered into his house. With the intention to kill his father, Manga fired from his country made pistol but he could narrowly escaped. It was further alleged that when his mother came to save his father then the accused persons also assaulted her. Then in defence his father used Lathi which hit Manga and he fell down. His (Manga) pistol also fell down there. Mohar Singh and Kadam Singh saw this incident and they helped his parents. It was further stated that his parents are seriously injured. His uncle (CHACHA) took them to hospital, where their medical examination was done. At the time of incident he was in his shop at Manglore. After getting the information about the said incident when he reached in the hospital then his father told the entire incident to him. With the same averments, he lodged the F.I.R. at Police Station, Manglore on 2.9.1987 at 01:30 P:M. That F.I.R. is Ext.Ka-2. On the basis of that F.I.R., Chik F.I.R. (Ext.Ka-9) was prepared by Constable Clerk 3 Krishan Dutt Gautam. The necessary entries were also made in the G.D., carbon copy of which is Ext.Ka-10. The investigation of this case was entrusted to Sub Inspector Yogendra Singh (P.W.9). On 2.9.1987 at 12:15 P:M, injured Smt. Kailasho 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-3. On the same day at 11:30 A:M, medical examination of Brij Gopal was also conducted by the same medical officer and his injury report was prepared which is Ext.Ka-4. Supplementary report of Smt. Kailasho was also prepared, which is Ext.Ka-5. X-ray of Smt. Kailasho was also conduced, the X-ray report is Ext.Ka-6. The I.O., during the course of investigation, prepared the site-plan (Ext.Ka-7) of the place of occurrence, recorded the statements of the witnesses and took the plain and blood stained leaf and plain and blood stained stalk from the place of occurrence and thereafter prepared the FARD, which is Ext.Ka-1. On completion of the investigation, the I.O. submitted the charge sheet against the accused/appellants under Sections 147/148/307/323 IPC. That charge sheet is Ext.Ka-8. 4. Additional Munsif and Judicial Magistrate Ist Class, Roorkee, on receipt of the charge sheet, committed the case to the Court of Sessions on 30.11.1988, after giving necessary copies to the accused/appellants, as provided u/s 207 Cr.P.C. 5. It seems from record that the case was transferred to Additional Sessions Judge for hearing and disposal according to law. 4 6. On 13.3.1989, learned Addl. Sessions Judge, Roorkee framed the charge of offence punishable under Sections 148, 325 r/w 149, 323 r/w 149, 324/149, 452 and 307 IPC against the accused/appellant Manga. Charge u/Ss 147, 325 r/w 149, 323 r/w 149, 324 r/w 149, 452 and 307 r/w 149 IPC was framed against the accused/appellant Om Kumar. Charge u/Ss 148, 325 r/w 149, 323 r/w 149, 324, 452 and 307 r/w 149 IPC were framed against the accused/appellants Rati Ram and Satish Kumar. The charge was read over and explained to each of the accused/appellants, who pleaded not guilty and claimed to be tried. 7. In order to prove its case, the prosecution has examined PW1 Brij Gopal, injured eyewitness; PW2 Mohar Singh, eyewitness; PW3 Kadam Singh, eyewitness; PW4 Braham Pal; PW5 Shyam Sunder, complainant of the case; PW6 Smt. Kailashi, injured eyewitness; PW7 Dr. J.G. Garg, Radiologist, who conducted the X-ray of Smt. Kailashi; PW8 Dr. N.D. Arora, who medically examined Brij Gopal and his wife Smt. Kailashi and PW9 Sub Inspector Yogendra Singh, Investigating Officer of the case. 8. 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 defence, they have filed certain documents as documentary evidence and in oral evidence, Rati Ram examined himself as D.W.1. 9. After appreciating the entire evidence available on record and hearing learned counsel for the parties, learned Additional Sessions Judge, Roorkee vide his 5 judgment and order dated 16.2.1994 convicted and sentenced the accused/appellants as stated above. Feeling aggrieved by the aforesaid judgment and order the accused/appellants have preferred the present appeal. 10. Before further discussion, it is pertinent to mention the injuries found on the body of the injured Smt. Kailashi, who was medically examined by Dr. N.D. Arora (P.W.8) on 2.9.1987 at 12:15 P:M and the injury report (Ext.Ka-3) thereof 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. 6 11. Injured Brij Gopal was also examined on 2.9.1987 at 11:30 A:M by Dr. N.D. Arora, M.O. The injury report (Ext.Ka-4) 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. (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. 7 (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) Injury No.1 caused by blunt weapon (iii) X-ray advised to injury no.8, 6, 5 & both forearm. 12. Supplementary report (Ext.Ka-5) 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. 13. To prove the above-noted injury reports, the prosecution has examined P.W.8 Dr. N.D. Arora, Medical Officer who has stated that on 2.9.1987 he was posted at Primary Health Centre, Manglore. On that day at 12:15 P:M, he medically examined the injured Smt. Kailasho and found the above-noted injuries on her body. In his opinion all the injuries were fresh and could have been caused by some blunt object. He has proved the injury report (Ext.Ka-3) of Smt. Kailashi. He further stated that on the same day at 11:30 P:M he had also conducted the medical examination of Brij Gopal and found the above- noted injuries on his body. In his opinion injury no.1 of 8 Brij Gopal could be caused by a sharp edged weapon like Ballam and rest of the injuries could be caused by Lathi. He has proved the injury Ext.Ka-4. He further stated that on the basis of X-ray, he prepared the supplementary report (Ext.Ka-5) of Smt. Kailasho and found that the injury no.1 of Smt. Kailasho was grievous in nature due to which death could be possible. 14. P.W.7 Dr. J.G. Garg has stated that that on 10.9.1987 he was posted as Radiologist at Civil Hospital, Roorkee. On that day, he conducted the X-ray of Smt. Kailasho and thereafter prepared the X-ray report which is Ext.Ka-6. 15. Further to prove its case, the prosecution has examined P.W.1 Brij Gopal, who has stated that on 2.9.1987 he was working in the field of Mohar Singh. Then at 10:00 A:M, Rati Ram armed with Ballam, Manga and Satish armed with revolver, Om Kumar and two other persons armed with Lathies came there. Manga fired on him but somehow he could save his life. Rati Ram assaulted him with Ballam and Om Kumar and two other persons assaulted him with Lathies due to which he received number of injuries. Meanwhile, his wife Kailashi reached there. When she tried to save him then the accused/appellants also assaulted her. He ran towards his house to save his life then the accused/appellants approached him and entered into his house. There the accused/appellants again assaulted him. He used Lathi in his defence which hit Manga and the revolver and cartridges fell down from his (Manga) hand. Then Mohar Singh and Kadam came to his house. It was further deposed that Mohar Singh and Kadam saw the entire incident. Both of them saved him from the accused/appellants in his house. Thereafter his brother 9 Hari Om took him and his wife in the injured condition to Manglore Hospital, where their medical examination was done. He further stated that he narrated the entire incident to his son Shyam Sunder, who thereafter lodged the report in the police station. This witness was cross- examined at length by the defence counsel but nothing has come out from his statement which may create any doubt in his statement. The statement of this witness is reliable, believable and inspires confidence. 16. P.W.2 Mohar Singh has stated the same facts as stated by Rati Ram (P.W.1) regarding the said incident. Besides this, he has also stated that if they (Mohar Singh and Kadam Singh) would have not saved the life of Brij Gopal and his wife Smt. Kailashi then the accused/appellants would have killed them. 17. P.W.3 Kadam Singh has also corroborated the statements of Rati Ram (P.W.1) and Mohar Singh (P.W.2). 18. P.W.4 Brahm Pal has stated that the I.O. had taken the blood stained and plain leaf and blood stained and plain stalk in two boxes, separately. Thereafter the FARD Ext.Ka-1 was prepared on which he and Kadam Singh had signed. 19. P.W.5 Shyam Sunder has stated that he had written the report of the said incident as per the version of his father. He further stated that when the said incident took place at that time he was in Manglore. He has proved the report Ext.Ka-2. 20. P.W.6 Smt. Kailashi has corroborated the statement of her husband Rati Ram (P.W.1). 21. P.W.9 Yogendra Singh has stated that on 2.9.1987 he was posted as Sub Inspector at Police 10 Station, Manglore. The investigation of this case was entrusted to him. During the course of investigation, he recorded the statements of the witnesses, inspected the place of occurrence and thereafter prepared the site-plan, which is Ext.Ka-7. He has also proved the FARD Ext.Ka- 1. He further stated that the Chik F.I.R. (Ext.Ka-9) of this case was prepared by Krishan Pal and the entries in the G.D. were also made by him. He has proved the carbon copy of G.D., which is Ext.Ka-10. After completing the investigation, he submitted the charge sheet (Ext.Ka-8) against the accused/appellants. He further stated that he received the statements of the witnesses by post in which it was alleged that the accused/appellants had also committed Marpeet with Smt. Kailashi, wife of Brij Gopal, and whose blood was also fallen in the courtyard of the house. 22. 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 certain documents as documentary evidence and in oral evidence, Rati Ram examined himself as D.W.1. 23. D.W.1 Rati Ram has stated that on the date of incident at about 10-10:30 A:M Brij Gopal, Brahm Chand, Indraj and Hari Om assaulted him and his son Manga. This incident took place when he was cleaning the drain. Brij Gopal was armed with pistol, Indraj was armed with Lathi, Hari Om was armed with Gudhala and rest of the persons were also armed with Lathies. After hearing the noise Man Mohan and Soraj had reached on the spot, who had seen the entire incident. They had told him that his son Manga has received injuries and Brij 11 Gopal had taken his son to his house. He had lodged the report of the said incident in the police station. He further stated that the case against Brij Gopal and others is pending in the court. 24. Sri Rajendra Singh, learned counsel for the accused/appellants has submitted that the prosecution has not proved the case beyond reasonable doubt against the accused/appellants. I do not find force in the argument advanced by learned counsel for the accused/appellants. As per the statement of P.W.1 Brij Gopal, on the date of incident i.e. on 2.9.1987 when he was working in the field of Mohar Singh then at 10:00 A:M, Rati Ram armed with Ballam, Manga and Satish armed with revolver, Om Kumar and two other persons armed with Lathies came there. Manga fired on him but somehow he could save his life. Rati Ram assaulted him with Ballam and Om Kumar and two other persons assaulted him with Lathies due to which he received number of injuries. Meanwhile, his wife Kailashi reached there. When she tried to save him then the accused/appellants also assaulted her. He ran towards his house to save his life then the accused/appellants approached him and entered into his house. There the accused/appellants again assaulted Brij Gopal and his wife Smt. Kailashi. He used Lathi in his defence which hit Manga and the revolver and cartridges fell down from his (Manga) hand. Then Mohar Singh and Kadam came to his house. It was further deposed that Mohar Singh and Kadam saw the entire incident. Both of them saved him from the accused/appellants in his house. Thereafter his brother Hari Om took him and his wife in the injured condition to Manglore Hospital, where their medical examination was done. It was further stated by Brij Gopal that he narrated the entire incident to his son 12 Shyam Sunder, who thereafter lodged the report in the police station. The statement of Brij Gopal (PW1) gets corroboration from the statements of Mohar Singh (PW2), Kadam Singh (PW3) and Smt. Kailashi (PW6). Besides this, his statement further gets corroboration from the statement of Dr. N.D. Arora (PW8) as well as from the injury reports Ext.Ka-3 & Ka-4 and supplementary report Ext.Ka-5. As per the opinion of Dr. N.D. Arora, Medical Officer, injury no.1 of Smt. Kailashi was grievous in nature and death could have been possible due to that injury. On the other hand, injuries that were caused to Manga by Brij Gopal were only caused in right of private defence about which Brij Gopal and other witnesses have stated in their statements. As far as the injuries of Rati Ram are concerned, Rati Ram examined himself as D.W.1 and has stated that on the date of incident at 10-10:30 A:M Brij Gopal along with other persons assaulted him and his son Manga. He was been medically examined. It is relevant to mention here that Rati Ram examined himself on 3.9.1987 at 12:35 P:M about 27 hours after the said incident and his injuries were found simple. If his injuries were simple and he was in position to move then why he did not medically examined himself on the same day i.e. on 2.9.1987. This fact also strengthen the case against the accused/appellants. 25. Learned counsel for the accused/appellants has further argued that as per the statement of Brij Gopal and other witness, Satish and Manga were shown to be armed with revolver at the place of occurrence but no such injury was found in the body of Brij Gopal, hence, their presence is doubtful at the place of occurrence. I do not find force in the argument advanced by learned counsel for the accused/appellants as in the said incident Manga had also received injuries in the 13 house of Brij Gopal, which were caused by Brij Gopal in right of private defence. Hence, it cannot be said that at the time of incident Manga was not present there. As far as the injury caused by firearm is concerned, it is clearly stated by the prosecution witnesses in their statements that Manga fired on Brij Gopal but somehow he could saved his life. It has also come in the evidence that Manga along with other accused persons caused injuries to Brij Gopal and his wife in which Satish was one of the accused who also participated in the said crime. He was present at the place of occurrence with the common intention to participate in the said crime. 26. Learned counsel for the accused/appellants lastly argued that the said incident had taken place in the field but it was wrongly shown in the house. I do not find force in this argument. It has come in the evidence that when Brij Gopal was working in the field of Mohar Singh (PW2), then at that time the accused/appellants came in the field and all of them assaulted Brij Gopal. Meanwhile, Smt. Kailashi, wife of Brij Gopal reached there. When she tried to save her husband then the accused/appellants also assaulted her. To save their life, Brij Gopal and his wife ran towards their house. The accused persons also ran behind them and entered into their house. There the accused/appellants again assaulted Brij Gopal and his wife. This incident was witnessed by Mohar Singh and Kadam Singh. Thus, it has been proved that the said incident firstly occurred in the field and then it took place in the house of Brij Gopal. 27. From the facts and circumstances discussed above, the prosecution has successfully proved its case against the accused/appellants and I concur with the 14 view taken by the trial court in convicting and sentencing the accused/appellants under the aforesaid sections. 28. For the reasons recorded above, the appeal is dismissed. The judgment and order dated 16.2.1994 passed by Additional Sessions Judge, Roorkee in S.T. No.682/1988, State Vs. Satish & others, is affirmed. Consequently, the conviction and sentence as directed by the court below, which has been discussed above, is also confirmed. The accused/appellants are on bail. Their bail bonds are cancelled. Let them be taken into custody forthwith in order to serve out the sentence. 29. Let the record of the case be sent back immediately to the trial court concerned for compliance of the order. (Dharam Veer, J.) 08.07.2009 RG