Judgment Reserved IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 1366 of 2001 Old Number (Criminal Appeal No. 38 of 1998) 1. Dharam Singh S/o Sri Latur. 2. Mukkha S/o Sri Latur. 3. Telu S/o Mukkha. 4. Mahendra S/o Sri Harkesh. 5. Prakash S/o Sri Dharam Singh. 6. Sushil S/o Sri Mukkha. All R/o village Purwala, Police Station Laksar, District Haridwar. ………. Appellants. Versus State of U.P. (Now State of Uttarakhand) ……. Respondent. Present : Mrs. Pushpa Joshi, Advocate & Mr. Arvind Vashisht, Advocate present for the appellants. Mr. S.S. Adhikari, learned A.G.A. with Sri B.S. Parihar, Brief holder, present for the State / respondent. Coram: Hon’ble Prafulla C. Pant, J. Hon’ble Nirmal Yadav, J. [Per Nirmal Yadav, J. ] Present appeal is directed against the judgment and order dated 23.12.1997 passed by Additional Sessions Judge, Roorkee whereby accused Dharam Singh, Mukkha, Telu and Mahendra have been convicted under section 147, section 302 read with section 149, section 307 read with section 149 of Indian Penal Code (hereinafter 2 referred to as IPC). Each of the appellants has been sentenced to undergo rigorous imprisonment for two years under section 147 IPC; they have been further sentenced to undergo rigorous imprisonment for life and to pay fine of ` 5000 under section 302 read with section 149 IPC and in default of payment of fine, they have been ordered to undergo further one year rigorous imprisonment; they have been also sentenced to undergo ten years rigorous imprisonment and to pay fine of ` 5000 under section 307 read with section 149 IPC and in default of payment of fine, they have been ordered to undergo further one year rigorous imprisonment. Accused Prakash and Sushil have been convicted under section 148, 302 read with section 149, 307 read with section 149 IPC and sentenced to undergo three years rigorous imprisonment under section 148 IPC; they have been further sentenced to undergo imprisonment for life under section 302 IPC and to pay fine of ` 5000/- and in default of payment of fine, they have been further directed to undergo one year rigorous imprisonment; they have been further sentenced to undergo ten years rigorous imprisonment under section 307 read with section 149 IPC and to pay fine of ` 5000/- and in default of payment of fine, they have been directed to undergo further one year rigorous imprisonment. However, all the 3 accused appellants have been acquitted of the charge of offence punishable under section 323 read with section 149 IPC. One Amar Singh, who also stood trial along with above-mentioned accused appellants, was acquitted of the charge of offences punishable under section 147, 302/149, 307/149, 323/149 IPC. The criminal law was set in motion on the written application (exhibit Ka-1) submitted by complainant Sahendra (PW1). He got scribed the complaint from Mange Ram (PW3) and submitted the same to the police station Laksar. According to the complainant, at about 04.00 p.m. on 08.04.1990 accused appellants Dharam Singh, Mukkha, Telu, Mahendra, Sukkha (Not appellant) armed with lathis and appellants Prakash and Sushil armed with knives, came to the house of the complainant and started hurling abuses. On hearing the commotion, the complainant along with his brothers Meghraj (deceased), Rajbeer and his mother Kalawati came out of their house and asked accused persons to desist from hurling abuses and advised them to go to their house. Meanwhile, PW2 Bhopal, PW3 Mange Ram and other persons of the village also reached the spot. But all the accused started giving injuries to complainant, Meghraj, Rajbeer and Kalawati. Meghraj and Rajbeer received knife’s injuries while complainant 4 and his mother received lathi injuries. The injured were removed to the Raisi hospital, however, Meghraj succumbed to his injuries. Complainant Sahendra along with his brother Rajbeer went to the police station and submitted the written complaint. On the basis of the said report, chick first information report (exhibit Ka- 10) was recorded at police station Laksar at 05.35 p.m. on the same day. Entry in this regard has been made in GD (exhibit Ka-11). As per the complainant, his brother Meghraj was a graduate and was working against the evils of their community. On this account, Dharam Singh, Mukkha and their family members were feeling jealous of him. They had threatened Meghraj and his family members to teach a lesson to them for becoming a leader. On that day at about 12 noon, Sunita and Kala, daughter and wife of Dharam Singh respectively had some altercations with Usha, wife of Rajbeer. Kala pushed Usha and threatened her to face the consequences. On this account, accused picked up quarrel and caused injuries to the complainant party. Sub Inspector R.P. Mishra took the dead body of Meghraj in his possession and prepared the inquest report (exhibit Ka-5). He also prepared other relating papers i.e. form no. 13 (exhibit Ka-6), letter to CMO (exhibit Ka-8), sketch of the dead 5 body (exhibit Ka-9) and sample seal. The dead body was sent in a sealed parcel for postmortem examination. Since all the doctors were on strike in Uttar Pradesh, the dead body was sent to Civil Hospital, Yamuna Nagar, Haryana. The autopsy report (exhibit Ka-2) was prepared by Dr. Mahaveer Goyal (PW5). Injured Rajbeer was admitted to Medical College, Meerut on 09.04.1990. The investigation of the case was conducted by Inspector S.K. Tomar (PW9), who collected simple as well as bloodstained earth vide memo exhibit Ka-13. He also prepared site plan of place of occurrence (exhibit Ka-12). On completion of the investigation, chargesheet (exhibit Ka-14) was submitted. Accused Dharam Singh, Mukkha, Telu, Mahendra and Amar Singh were chargesheeted for the offence punishable under section 147, 302/149, 307/149, 323/149 while accused Prakash and Sushil were chargesheeted for the offence punishable under section 148, 302/149, 307/149, 323/149 to which they pleaded not guilty and claimed to be tried. The prosecution, in order to prove its case, examined PW1 Sahendra, the complainant, PW2 Bhopal, PW3 Mange Ram, all the above three are eye witnesses, PW4 Rajbeer, the injured eye witness, PW5 Dr. Mahaveer Goyal, conducted 6 autopsy on the dead body of Meghraj, PW6 Dr. Sudhir Prasad Bhargav, examined Rajbeer on 09.04.1990 vide medico-legal report (exhibit Ka-4), PW7 Sub Inspector R.P. Mishra, partly investigated the case, PW8 Head Moharir Madan Pal Singh, recorded the chick first information report and made entry in the GD with regard to FIR, PW9 Inspector S.K. Tomar, investigated the case. Accused when examined under section 313 Cr.P.C. pleaded false implication on account of enmity by the complainant party. Accused Dharam Singh, Mukkha and Telu submitted their written statements. Mukkha in his written statement submitted that on 08.04.1990 Usha, wife of Rajbeer had made complaint against Sunita, daughter of Dharam Singh. On this, Meghraj and Rajbeer armed with knife and lathi came to the house of Dharam Singh and started giving injuries to Sunita. Accused appellant Telu and Dharam Singh came to the rescue of Sunita and were given injuries by Rajbeer and Meghraj. At that point of time, Mukkha picked up a knife and gave injuries to Meghraj and Rajbeer in order to save the lives of Dharam Singh, Telu and Sunita. Thereafter, they went to medical college, Meerut but doctor refused to medico legally examined them. Thereafter, the injured accused party went to Kamal Nursing Home, situated very close to Medical College 7 where they were medico legally examined. Sunita, Mukkha, Telu and Dharam Singh were medico legally examined vide reports exhibit Kha 1 to exhibit Kha 4 respectively. Similar statements were made by Telu and Dharam Singh. In defence accused produced DW1 Rajbeer, compounder in Kamal Nursing Home. He had produced the medical examination reports exhibit Kha-1 to Kha- 4. DW2 Vijay Kumar Gaur employed in Kamal Nursing Home stated that original record had been destroyed, as it is being destroyed after three years. Learned trial court after taking into consideration the facts and circumstances on record, acquitted Amar Singh of all the charges, however, accused appellants have been convicted and sentenced, as referred to paragraph 1 of the judgment. Before proceedings further, we think it just and proper to reproduce the injuries suffered by deceased Meghraj and injured Rajbeer. The following ante mortem injuries were found on the body of deceased Meghraj: “i. Incised wound 1 inch X 1½ inch towards right thigh in the abdomen 1 ½ inch inside towards interior to superior iliac spine. On internal examination exploration dues were stained with blood big hematoma was present in the parietal cavity. 8 External outer iliac artery, and nerve were also found cut. Multiple abrasions in the size of ½ cm upto 1 cm were present on the left shoulder.” As per opinion of the doctor, cause of death was on account of excessive haemorrhage and shock due to ante mortem injuries. Death could have been possible at 04.00 p.m. on 08.04.1990. PW6 Dr. Sudhir Prasad Bhargava, examined injured Rajbeer and found the following injuries in his medico legal report (exhibit Ka-4). “i. Stab wound on the left side of back 3 cm X .5 cm, however, depth of the wound could not be measured. Wound was present on the left side of the midline of back upon T12 and L1 vertebra of spine. ii. Injury by some blunt object on the left shoulder. He was kept under conservative treatment by administering I/V fluid antibodies and analgesic and dressing of the wound, he was discharged on 14.04.1990.” We have heard Smt. Pushpa Joshi and Mr. Arvind Vashisht, learned counsel for the appellants and Mr. S. S. Adhikari, AGA with Mr. B.S. Parihar, Brief Holder, for the State. 9 The prosecution case mainly rests on the testimony of four eye witnesses namely PW1 Sahendra (complainant), PW2 Bhopal and PW3 Mange Ram and injured witness PW4 Rajbeer. The counsel for the appellants has not disputed the time and the nature of injuries received by Meghraj (deceased) as well as injuries received by Rajbeer, however, they have taken a plea of self defence by submitting written statements by accused Dharam Singh, Mukkha and Telu. The entire responsibility to cause injuries to Meghraj and Rajbeer has been owned by Mukkha (died during the pendency of the appeal). On the other hand, the prosecution has totally denied the contents of written statements of Mukkha, Dharam Singh, Telu, the manner of occurrence and the injuries caused to Sunita, Mukkha, Dharam Singh and Telu by Meghraj and Rajbeer have been totally denied. In such a situation the court has to scrutinize the entire evidence and to separate nuggets of truth out of the entire evidence and circumstances to hold responsibility and the manner in which occurrence may have taken place. Learned counsel for the appellants submitted that prosecution has not been able to prove the motive beyond reasonable doubt. As per the prosecution, the accused were jealous of Meghraj, who was a graduate and was working for the 10 upliftment of their community by eradicating the evils of the society, however, they have not brought any concrete evidence on record, as to what steps were taken by the deceased, which annoyed the accused persons and made them jealous of him. Thus, the motive put forward by the prosecution is merely appears to be flimsy. It has been argued that all the major family members of the accused i.e. son of Dharam Singh and all three sons of Mukkha, have been implicated and none has been spared. It is further argued that most of the prosecution story was found to be false during investigation. Learned counsel referred to the statement of the Investigating Officer Inspector S.K. Tomar, who admitted that Amarwati wife of Sahendra (complainant) had made statement regarding involvement of Harkesh, Dharmendra, Rajendra and Preetam from the side of the accused in the incident. On investigation, he found her statement to be incorrect. Learned counsel further argued that the testimony of all the three eye witnesses suffers from material contradictions and improvements. Complainant did not mention in the FIR that Prakash had caused injury to Meghraj with knife and Sushil had caused knife injury to Rajbeer. It was simply mentioned in the FIR that all the accused armed with lathis and knives, came 11 to their house and caused injuries with knives and lathis. No specific role was attributed to Sushil and Prakash. It is also argued that all the witnesses are closely related and interested witness. Even the presence of PW3 Mange Ram and PW2 Bhopal at the place of occurrence is doubtful. Learned counsel further argued that prosecution has miserably failed to prove the injuries suffered by four accused namely Dharam Singh, Mukkha, Telu and Sunita. It is argued that from the facts and evidence on record, it is well proved that Mukkha (since deceased) had caused injuries to Meghraj and Rajbeer in self defence i.e. in order to save lives of Sunita, himself, Telu and Dharam Singh. On the other hand, learned AGA submitted that it is well proved from the testimony of the complainant Sahendra (PW1), PW2 Bhopal, PW3 Mange Ram and PW4 Rajbeer (injured witness) that accused persons had come to the house of the complainant party and caused injuries to deceased Meghraj and Rajbeer. According to him, there may be some minor discrepancies in the statements of the witnesses, however, there is no material contradiction to disbelieve their testimony. It is submitted that plea of self defence, as propounded by the accused Mukkha that he alone had caused injuries to the deceased Meghraj and Rajbeer does not appear to be probable. It appears that in order 12 to save the real assailants i.e. Prakash and Sushil, Mukkha, who is an old man of 75 years, has taken entire responsibility on himself. Learned AGA submitted that prosecution has proved that occurrence took place in front of the house of the complainant and the plea of the accused that Meghraj and Rajbeer came to their house and caused injuries to Sunita, Mukkha, Dharam Singh and Telu is not proved on record by any cogent evidence. In case, any such incident had taken place accused would have certainly reported the matter to the police. The defence has not been able to produce any evidence, what to say of any cogent evidence, that occurrence took place at some other place and not in front of the house of the complainant party. Moreover, all the four accused namely Dharam Singh, Mukkha, Telu and Sunita were medically examined in the evening of the next day i.e. on 09.04.1990 at about 06.15 p.m. Even their medico legal reports have not been proved on record. DW1 Rajbeer, compounder of Dr. Ravindra Sharma has not been able to prove, that he was working in Kamal Nursing Home, and he failed to produce his any documentary proof. Even original registers with regard to the entry of medico legal reports (exhibit Kha-1 to Kha-4) have not been produced. DW2 Vijay Kumar Gaur was not 13 working in Kamal Nursing Home, rather he was working in Lokpriya Hospital, Meerut. According to him, Kamal Nursing Home is an undertaking of Lokpriya Hospital but no document was produced to prove the same. None of the witness i.e. DW1 Rajbeer and DW2 Vijay Kumar Gaur could produce the register where any entry was made with regard to the destruction of original record (relevant register pertaining to the year 1991) wherein the entry with regards to medical examination of accused Dharam Singh, Mukkha, Telu and Sunita was made. We have carefully considered the rival submissions and scrutinized the evidence on record. The time of occurrence and nature of injuries received by deceased Meghraj and Rajbeer have not been disputed. The only plea taken by the accused appellants is of self defence. In the written statement submitted by accused Mukkha (since deceased) he has rather taken the entire responsibility of causing injuries to Meghraj and Rajbeer does not appear to be plausible and truthful. Accused have not been able to prove their injuries by any cogent evidence. As per medico legal reports (exhibit Kha-1 to Kha-4) they were examined on 09.04.1990 in the evening i.e. almost 26 hours after the incident, that too in a private hospital. Even they have failed to prove the 14 genuineness of medico legal report (exhibit Kha-1 to Kha-4), as no original document was produced nor any document has been placed on record that these reports were issued by Dr. Ravindra Sharma, who was working in Kamal Nursing Home or that original record had been destroyed by the Hospital authorities. In such a situation, the plea of self defence cannot be accepted. On the other hand, prosecution case rests on deposition of four eye witnesses. Out of four eye witnesses, PW4 Rajbeer is the injured eye witness and PW1 Sahendra is the complainant, whose presence at the place of occurrence cannot be doubted as occurrence took place in front of their house. Defence has not been able to show from any evidence that occurrence took place at the house of accused persons. Even if we do not consider the testimony of PW2 Bhopal and PW3 Mange Ram, the testimony of PW1 Sahendra duly corroborated by PW4 Rajbeer proves that the occurrence had taken place in front of house of complainant party. Learned defence counsel has referred to the statement of PW2 Bhopal, who admitted in the cross examination, that when he reached the place of occurrence Rajbeer and Meghraj had already received injuries and no other person had received any injury. He also stated that Meghraj was lying 15 in front of the house on north-western side. A perusal of the site plan shows that ‘B’ is the place where deceased and injured were present while ‘A’ is the place where accused were standing and giving threats to the complainant party and ‘C’ is the place where the, Meghraj, Rajbeer, complainant and his mother were advising the accused persons not to hurl abuses and not to quarrel with them. He has further stated that PW3 Mange Ram had come to the spot after one or two minutes thereafter. He has further stated that none of the accused had received injuries while Sunita was not at the spot. PW3 Mange Ram also stated that he and PW2 Bhopal had reached the place almost together and he admitted that when he had reached the spot Meghraj and Rajbeer had already received injuries. From their statements it can well be inferred that they were not present at the time when Meghraj succumbed to injuries. They had reached the place of occurrence after both Meghraj and Rajbeer already had received injuries. However, as referred to above the testimony of PW1 Sahendra and PW4 Rajbeer is consistent and their presence at the spot is fully proved. Thus, there is no ground to throw the prosecution story overbroad, as we find ring of truth in the testimony of the injured witness and the complainant. It is the duty of the court to cull out the nuggets of truth 16 from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring and utterly destroys confidence in the witness. We are conscious of the fact that a Judge is not to scrutinize the criminal case merely to see that no innocent man is punished but the Judge has also to see that a guilty man also does not escape. One is as important as the other. Both the witnesses have categorically stated that Prakash and Sushil were armed with knives and others were armed with lathis. According to PW1 Sahendra, Prakash gave knife injuries to Meghraj while Sushil gave knife injury to Rajbeer. Both of them have categorically stated that other accused had caused injuries with lathis and dandas but none received injuries. Thus, from the testimony of PW1 Sahendra and PW4 Rajbeer it is well proved beyond doubt that only Prakash and Sushil were present and had caused injuries to Meghraj and Rajbeer with their respective knives, while none of the other accused were present at the spot and none other from complainant side received any injury. It is quite common in the villages of India that invariably the witnesses add embroidery to the prosecution story involving as many as other family members in order to take vengeance from the family with whom they are inimical disposed 17 of. But it is well said that men may lie but circumstances do not. Admittedly, neither Meghraj nor Rajbeer has received any injuries, which could be caused by lathis. No other person from the complainant side has been medico legally examined nor there is any evidence to prove that any one from the complainant side received lathi injuries. Thus, we are of the considered view that accused Dharam Singh, Mukkha, Telu and Mahendra were not present at the time of occurrence and only Prakash and Sushil had caused injuries to Meghraj which was sufficient to cause death in ordinary course of nature while Sushil caused injuries on the person of Rajbeer, thus, we do not find any ground to interfere with the finding of the trial court with regard to accused Prakash and Sushil, thus, appeal qua Prakash and Sushil is dismissed. However, as discussed above prosecution has not been able to prove its case against accused Dharam Singh, Telu, Mahendra beyond reasonable doubt. Learned defence counsel submitted that only one injury has been caused to deceased Meghraj and there is no repetition of injury, therefore, accused Prakash had no intention to cause death of Meghraj. We are in agreement with the argument raised by learned counsel for the appellants as accused gave a single blow to the deceased, there 18 appears no premeditation on his part, therefore, the offence shall fall within the ambit of section 304 (1) IPC. Appeal of Mukkha who died during pendency of this appeal stand abated while appeal qua Dharam Singh, Telu, Mahendra is allowed. Appeal qua Prakash and Sushil is partly allowed. Conviction and sentence recorded against Dharam Singh, Telu and Mahendra by the trial court is set aside. They are acquitted of charge of offences punishable under section 147, 302/149, 307/149 IPC. They are on bail. They need not to surrender. Their sureties are discharged. As discussed above, accused Prakash is convicted under section 304 (1) instead of section 302 IPC and sentenced to undergo ten years rigorous imprisonment and to pay fine of ` 5000/- and in default of payment of fine, he shall further undergo one year rigorous imprisonment. However, he is acquitted of charge of offences punishable under section 148, 307/149 IPC. Accused Sushil is convicted under section 307 and sentenced to undergo seven years rigorous imprisonment and to pay fine of ` 5000/- and in default of payment of fine, he shall further undergo one year rigorous imprisonment. However, he is acquitted of charge of offences punishable under section 148, 302/149 IPC. 19 Accused Prakash and Sushil are on bail. They shall be taken into custody to serve out the sentence as awarded by this Court. The court below is directed to ensure the compliance of the order. Let the lower court record be sent back. (Nirmal Yadav, J.) (Prafulla C. Pant, J.) 30.09.2010 SKS