Dayal Singh & Ors vs State Of Uttaranchal

2. The facts giving rise to the questions in the present appeal are that the fields of Gurumukh Singh and Dayal Singh were adjoining in the village Salwati within the limits of Police Station Sittarganj, district Udham Singh Nagar. These fields were separated by a mend (boundary mound). On 8th December, 1985, Gurumukh Singh, the complainant, who was examined as PW2, along with his father Pyara Singh, had gone to their fields. At about 12 noon, Smt. Balwant Kaur, PW4, wife of Pyara Singh came to the fields to give meals to Pyara Singh and their son Gurumukh Singh. At about 12.45 p.m, the accused persons, namely, Dayal Singh, Budh Singh & Resham Singh (both sons of Dayal Singh) and Pahalwan Singh came to the fields wielding lathis and started hurling abuses. They asked Pyara Singh and Gurumukh Singh as to why they were placing earth on their mend, upon which they answered that mend was a joint property belonging to both the parties. Without any provocation, all the accused persons started attacking Pyara Singh with lathis. Gurumukh Singh, PW2, at that time, was at a little distance from his father and Smt. Balwant Kaur, PW4, was nearby. On seeing the occurrence, they raised an alarm and went to rescue Pyara Singh. The accused, however, inflicted lathi injuries on both PW2 and PW4. In the meanwhile, Satnam Singh, who was ploughing his fields, which were quite close to the fields of the parties and Uttam Singh (PW5) who was coming to his village from another village, saw the occurrence. These two persons even challenged the accused persons upon which the accused persons ran away from the place of occurrence. Pyara Singh, who had been attacked by all the accused persons with lathis fell down and succumbed to his injuries on the spot. Few villagers also came to the spot. According to the prosecution, pagri (Ex.1) of one of the accused, Budh Singh, had fallen on the spot which was subsequently taken into custody by the Police. Gurumukh Singh, PW2, left the dead body of his deceased father in the custody of the villagers and went to the police station where he got the report, Exhibit Ka-3, scribed by Kashmir Singh in relation to the occurrence. The report was lodged at about 2.15 p.m. on 8th December, 1985 by PW2 in presence of SI Kartar Singh, PW6. FIR (Exhibit Ka-4A) was registered and the investigating machinery was put into motion. The two injured witnesses, namely, PW2 and PW4 were examined by Dr. P.C. Pande, PW1, the medical officer at the Public Health Centre, Sittarganj on the date of occurrence. At 4.00 p.m., the doctor examined PW2 and noticed the following injuries on the person of the injured witness vide Injury Report, Ex. Ka-1.

PW-2 “1. Lacerated wound of 5 cm X 1 cm and 1 cm in depth. Margins were lacerated. Red fresh blood was present over wound. Wound was caused by hard and blunt object. Wound was at the junction of left parietal and occipital bone 7 cm from upper part of left ear caused by blunt object. Advised X- ray. Skull A.P. and lateral and the injury was kept under observation.

2. Contusion of 6 cm X 2.5 cm on left side of body 3 cm above the left ilic crest. Simple in nature caused by hard and blunt object.” According to the Doctor, the injuries were caused by hard and blunt object and they were fresh in duration.

On 8.12.1985 at 7.30 p.m. Dr. P.C. Pande (PW1) examined the injuries of Smt. Balwant Kaur PW4 and found the following injuries on her person vide injury report Ex.Ka.2:

According to Dr. Pande, these injuries were caused by hard and blunt object and the duration was within 12 hours and the nature of the injuries was simple. According to Dr. Pande the injuries of both these injured persons could have been received on 8.12.1985 at 12.45 p.m. by lathi.”

3. As noted above, according to Dr. Pande, the injuries were caused by a hard and blunt object and duration was within 12 hours. Thereafter, SI Kartar Singh, PW6, proceeded to the place of occurrence in village Salwati. He found the dead body of Pyara Singh lying in the fields. In the presence of panchas, including Balwant Singh, PW8, he noticed that there were three injuries on the person of the deceased, Pyara Singh and prepared Inquest Report vide Ex. Ka-6 recording his opinion that the deceased died on account of the injuries found on his body. After preparing the site plan, Ext. Ka-10, he also wrote a letter to the Superintendent, Civil Hospital, Haldwani for post mortem, being Exhibit Ka-9. The dead body was taken to the said hospital by Constable Chandrapal Singh, PW7. Dr. C.N. Tewari, PW3, medical officer in the Civil Hospital, Haldwani, performed the post mortem upon the body of the deceased and did not find any ante-mortem or post-mortem injuries on the dead body. On internal examination, he did not find any injuries and could not ascertain the cause of death. Further, he preserved the viscera and gave the post-mortem report, Exhibit Ka-4. After noticing that there was no injury or abnormality found upon external and internal examination of the dead body, the doctor in his report recorded as under:

5. The accused persons, at about 5.45 p.m. on the same day, lodged a written report at the same Police Station, which was received by Head Constable Inder Singh, who prepared the check report Exhibit C-1 and made appropriate entry. The case was registered under Section 307 of the Indian Penal Code, 1860 (IPC) against PW2, Gurumukh Singh. Dayal Singh was arrested in furtherance of the FIR, Exhibit Ka-4A. He was also sent for medical examination and was examined by Dr. K.P.S. Chauhan, CW2. After examining the said accused at about 7.45 p.m., the doctor found two injuries on his person and prepared the report (Exhibit C-4). According to Dr. Chauhan, the injuries on the person of the accused could have been received by a firearm object and injuries were fresh within six hours.

8. The above judgment of the Trial Court was assailed by the accused persons in appeal before the High Court. The High Court, vide its judgment dated 17th March, 2008, dismissed the appeal and affirmed the judgment of conviction and order of sentence passed by learned Trial Court giving rise to the present appeal.

9. From the narration of the above facts, brought on record by the prosecution and proved in accordance with law, it is clear that there are three eye-witnesses to the occurrence. Out of them, two are injured witnesses, namely PW2 and PW4. PW2 is the son of the deceased and PW4 is the wife. Presence of these two witnesses at the place of occurrence is normal and natural. According to PW4, she had gone to the place of occurrence to give food to her husband and son around 12 noon, which is the normal hour for lunch in the villages. The son of the deceased had come to the field with his father to work. They were putting earth on the mend which was objected to by the accused persons who had come there with lathis and with a premeditated mind of causing harm to the deceased. Upon enquiry, the deceased informed the accused persons that the mend was a joint property of the parties. Without provocation, the accused persons thereupon started hurling abuses upon Pyara Singh and his son, and assaulted the deceased with lathis. PW2 and PW4 intervened to protect their father and husband respectively, but to no consequence and in the process, they suffered injuries. In the meanwhile, when the accused persons were challenged by PW5 and Satnam Singh, who were close to the place of occurrence, they ran away. The presence of PW2, PW4 and PW5 cannot be doubted. The statement made by them in the Court is natural, reliable and does not suffer from any serious contradictions. Once the presence of eye-witnesses cannot be doubted and it has been established that their statement is reliable, there is no reason for the Court to not rely upon the statement of such eye witnesses in accepting the case of the prosecution. The accused persons had come with pre-meditated mind, together with common intention, to assault the deceased and all of them kept on assaulting the deceased till the time he fell on the ground and became breathless.

They have clearly and consistently supported the prosecution version with regard to the beating and the ill- treatment meted out to the deceased by the appellant on several occasions which compelled the deceased to leave the appellant's house and take shelter in her parental house with an intention to live there permanently. PWs 1 to 4 have unequivocally stated that the deceased feared threat to her life from the appellant. The aforesaid version narrated by the prosecution witnesses viz. PWs 1 to 4 also finds corroboration from the facts stated in the complaint.”

30. Where the eye witness account is found credible and trustworthy, medical opinion pointing to alternative possibilities may not be accepted as conclusive. The expert witness is expected to put before the Court all materials inclusive of the data which induced him to come to the conclusion and enlighten the court on the technical aspect of the case by examining the terms of science, so that the court, although not an expert, may form its own judgment on those materials after giving due regard to the expert’s opinion, because once the expert opinion is accepted, it is not the opinion of the medical officer but that of the Court. {Plz. See Madan Gopal Kakad v. Naval Dubey & Anr. [(1992) 2 SCR 921 : (1992) 3 SCC 204]}.

37. Similarly, the Director General of Police UP/Uttarakhand also be issued notice to take appropriate action in accordance with the service rules against PW6, SI Kartar Singh, irrespective of the fact whether he is in service or has since retired. If retired, then authorities should take action for withdrawal or partial deduction in the pension, and in accordance with law.

40. The appeal is accordingly dismissed.