JUDGMENT Per: U.C. Dhyani, J. In the instant case, two complaints were filed. In the first complaint, injured Pramod Kumar’s name was missing. It was lodged at the behest of Bahadur Ram Tamta, who happened to be uncle of deceased Dayal Kumar s/o Anand Prasad r/o village Kaligad, District Bageshwar. The occurrence took place on 20.03.2008 at Kafligair and FIR was lodged on the same day at 7:10 p.m. The distance between place of occurrence and P.S. Kotwali Bageshwar was 35 Kms and hence there appeared to be no delay in lodging FIR (Ext.Ka-7). 2. It was written in the first complaint that Dayal Kumar s/o Anand Prasad died because of beating by police. Dayal Kumar had been to Kafligair on 20.03.2008. Drunken policemen beat Dayal Kumar so much that the same resulted into his death. Police administration of P.S. Jhiroli was responsible for the same. Dayal Kumar was a member of Scheduled Caste Community. Dayal Kumar’s father was an ex-serviceman who fought Bangladesh war and was 80 percent disabled. 3. Second complaint was lodged by injured Pramod Kumar. He gave a complaint (Ext.Ka-25) in writing on 22.03.2008. According to him, when he along with victim Dayal Kumar Tamta reached Kafligair at around 2-2 ½ p.m. then Harish Singh Adhikari follower gave him a slap on his face. (‘follower’ is a word generally used for a class iv employee of the police department who prepares meals for the police personnel in police station or police line). 3-4 policemen beat him with lathis. Victim Dayal Kumar intervened. Harish Singh Adhikari was in a drunken state. Pramod Kumar fled away. Policemen caught hold of Dayal Kumar. They started beating him and took him to police station. They wanted to eliminate them but Pramod Kumar ran away and saw that policemen were beating Dayal Kumar. Pramod Kumar ran away towards jungle. Pramod Kumar’s father was searching for him in the jungles of Binsar. Policemen were using caste remarks. Policemen were saying that they will be administered poison. Pramod sensed threat to his life and therefore, wrote a letter for his security. He came back to his village on 22.03.2008. 4. All the accused were charged by learned trial court for the offences punishable under Section 302 IPC. Policemen were using caste remarks. Policemen were saying that they will be administered poison. Pramod sensed threat to his life and therefore, wrote a letter for his security. He came back to his village on 22.03.2008. 4. All the accused were charged by learned trial court for the offences punishable under Section 302 IPC. Since three of them belonged to the upper caste and since the deceased belonged to Scheduled Caste Community therefore, three accused Puran Chand Pandey, Jagdish Singh Tanwal and Harish Singh Adhikari were also charged for the offence punishable under Section 3(2)(5) of S.C. & S.T. (Prevention of Atrocities) Act, 1989. Learned trial court vide order dated 24.12.2008 acquitted Puran Chand Pandey on both the charges levelled against him. Accused / appellant Jagdish Singh Tanwal, Ram Singh, Narendra Singh Panchpal and Harish Singh Adhikari were convicted for the offences punishable under Section 302 IPC read with Section 34 IPC. They were awarded with imprisonment for life and were also sentenced to pay a fine of `10,000/- each, in default of which they were further directed to undergo simple imprisonment for one year. We were informed by learned Additional G.A. that a revision was also filed on behalf of the complainant against the acquittal of accused Puran Chand Pandey. Since the same is not listed before us for hearing therefore, we are deciding the appeals preferred on behalf of accused / appellants only. It is clarified here that no State Appeal has been preferred against the acquittal of S.O. Puran Chand Pandey. 5. P.W.1 Bahadur Ram Tamta said in his examination-in-chief that on 20.03.2008 at 3:00 p.m. he was informed by his nephew that victim was detained in police custody. Bahadur Ram Tamta made a phone call to Head Moharrir Jagdish Tanwal. Jagdish Tanwal replied to Bahadur Ram Tamta on telephone that Dayal Kumar misbehaved with his wife and therefore, Dayal Kumar was brought to police station. This witness was assured by Head Moharrir that Dayal Kumar will be released from police lock up, but the same was not done. Then P.W.2 Bahadur Ram Tamta rang up the police station again only to be informed that Dayal Kumar was let off and he had taken liquor. A search for Dayal Kumar was made. At 5:30 p.m. three boys brought the corpus of Dayal Kumar in unconscious state. Then P.W.2 Bahadur Ram Tamta rang up the police station again only to be informed that Dayal Kumar was let off and he had taken liquor. A search for Dayal Kumar was made. At 5:30 p.m. three boys brought the corpus of Dayal Kumar in unconscious state. This witness enquired about names of the cops but the names of the cops were not disclosed. Bahadur Ram rang up S.P. Office. R.I. was informed about beating of Dayal Kumar by policemen. On 20.03.2008 at 6:00 p.m. Station Officer, Puran Chand Pandey, Head Constable Ram Singh Gurdayal, Constable Narendra Panchpal and Driver Jeewan Lal Tamta came to the residence of this witness. Dayal Kumar was lifted from the courtyard and kept on police jeep. Victim was taken to local hospital, who referred him to Almora. Victim was taken to PHC Bageshwar where Dayal Kumar was declared ‘brought dead’. Thereafter P.W.1 Bahadur Ram Tamta lodged FIR (Ext.Ka-1). Victim had a poultry farm. 6. P.W.2 Pramod Kumar was helper in poultry farm of victim Dayal Kumar. On 20.03.2008, he along with victim went to Kafligair. Harish Singh Adhikari called him. When he did not go Harish Singh Adhikari slapped him on his face and beat him. 4-5 policemen came, they were – Jagdish Singh, Ram Singh, Narendra Singh and Harish Singh. 5th accused Puran Chand Pandey was waiting on the bridge. The policemen abused P.W.2 Pramod Kumar and used caste remarks against him. Victim Dayal Kumar came to save him. He intervened and applied tika on (forehead of) policemen and a woman who accompanied them. Accused Jagdish Tanwal objected as to how did he muster the courage to apply tika on a woman. All the policemen beat Dayal. Pramod Kumar escaped from clutches of policemen. When both of them were being taken by policemen, then S.O. Puran Chand Pandey came near the bridge. P.W.2 Pramod Kumar found a chance to flee away. Dayal Kumar was beaten by all the five policemen and he was taken to police station. This witness concealed himself in the jungle of Binsar, where his father met him. Father Pratap Ram brought him to home. This witness sustained injuries. A complaint (Ext.Ka-2) was got written by this witness. He was examined in Government Hospital, Bageshwar. Dayal Kumar died subsequently. 7. This witness concealed himself in the jungle of Binsar, where his father met him. Father Pratap Ram brought him to home. This witness sustained injuries. A complaint (Ext.Ka-2) was got written by this witness. He was examined in Government Hospital, Bageshwar. Dayal Kumar died subsequently. 7. P.W.3 Nand Kishore was one of the three boys (the others being Rajesh and Anil) who found corpus of Dayal in unconscious state. This witness along with two others brought him to the courtyard of Dayal’s residence. 8. P.W.4 Suresh Lal said that five policemen brought a person (Dayal) on police jeep and dropped him on a way which led to Kafligair. 9. P.W.5 Smt. Radha Tanwal was the wife of appellant Head Moharrir Jagdish Tanwal. She said that she had been with her husband and children to Kafligair market at 11:00 a.m. While her husband remained in the marked, she came back to her residence. She denied that she went to market again at 2:30 p.m. The story of smearing of colour by victim was denied by the wife of Head Moharrir. 10. P.W.6 Gautam Kumar Mandal owned a medical store in Bageshwar. He said that Dayal Kumar was brought by S.O. Puran Chand Pandey and Bahadur Ram Tamta at his shop on 20.03.2008 at 6:30 - 7:00 p.m. for first aid. Dayal Kumar was in unconscious state. 11. P.W.7 Bachi Ram owned a mutton shop at Kafligair. 20.03.2008 was a HOLI day. Accused Harish Singh Adhikari came to his shop around 12 - 1 p.m. and took mutton. After some time at 2 – 2:30 p.m. four policemen Harish Singh Adhikari, Ram Singh, Jagdish Tanwal and Narendra Panchpal were beating Dayal Kumar and taking him to police station. He did not see Dayal Kumar returning from police station. 12. P.W.8 Prashant Kumar Arya, Sub-Divisional-Magistrate prepared inquest report (Ext.Ka-3) and other papers (Ext.Ka-5 and Ext.Ka-6). PW 9 constable Puran Chand was posted as constable clerk in PS Kotwali Bageshwar on 20.03.2008. He proved chik FIR (Ext. Ka-7) which was based upon the written complaint of Bahadur Ram Tamta. PW 9 constable Puran Chand also proved copy of GD Ext. Ka-8. P.W.10 constable Uma Arya was posted as lady constable in P.S. Jhiroli 20.03.2008. She was required to work as constable clerk in PS concerned from 6:00 am to 2:30 pm. He proved chik FIR (Ext. Ka-7) which was based upon the written complaint of Bahadur Ram Tamta. PW 9 constable Puran Chand also proved copy of GD Ext. Ka-8. P.W.10 constable Uma Arya was posted as lady constable in P.S. Jhiroli 20.03.2008. She was required to work as constable clerk in PS concerned from 6:00 am to 2:30 pm. Since her reliever was not available, therefore, she was asked to come again in the afternoon. She came back at 4:40 pm. She received a phone call at 5:45 pm that Dayal Kumar who had altercation with Police has consumed poison. This fact was recorded by constable clerk Uma Arya in GD. The person making telephone call also desired her to send vehicle from police station. This lady constable proved copies of other GDs also. 13. P.W.11 Doctor Akhilesh Kumar conducted post mortem on the body of deceased Dayal Kumar on 21.03.2008 at 4:30 p.m. and proved his report (Ext.Ka-16). Cause of death was head injury due to ante mortem injuries. Endorsement of two other doctors was also there on post mortem (Ext.Ka-16). P.W.12 Doctor D.P. Singh proved injury report (Ext.Ka-17) of injured Pramod Kumar. 14. P.W.13 S.I. Diwan Singh Bisht conducted investigation of the case in part. P.W.14 Harish Chandra Arya, Nayab Tehsildar proved inquest report of victim (Ext.Ka-22). P.W.15 Inspector Bachan Singh Rawat, among other things, proved statement of injured Pramod Kumar as Ext.Ka-25. P.W.16 V.K. Sharma took over investigation from S.S.I. Dewan Singh Bist, conducted a part of it and handed over the file to Circle Officer, Almora C.D. Pant. 15. P.W.17 driver Jeewan Lal Tamta said that he along with Station Officer Puran Chand Pandey went to see victim’s house where victim’s corpus / body was lying in his courtyard. Dayal Kumar was unconscious. When he was brought to Government Hospital, Bageshwar doctor declared him ‘brought dead’. 16. P.W.18 Sanjay Kumar Tamta rang up victim on 20.03.2008 at 3:00 p.m. Dayal Kumar did not respond. Instead Harish Adhikari picked up telephone and informed him that Dayal Kumar was in a drunken state and he smeared colour on the wife of Head Moharrir. Then this witness rang up his uncle Bahadur Ram Tamta that Dayal was in custody of police and he heard the sound of beating Dayal Kumar by policemen. 17. P.W.19 C.D. Pant conducted rest of investigation and submitted charge sheet (Ext.Ka-40) against the accused persons. Then this witness rang up his uncle Bahadur Ram Tamta that Dayal was in custody of police and he heard the sound of beating Dayal Kumar by policemen. 17. P.W.19 C.D. Pant conducted rest of investigation and submitted charge sheet (Ext.Ka-40) against the accused persons. 18. Statements of the accused persons were taken under Section 313 Cr.P.C. No witness was examined in defence. 19. Evidence has it that Jagdish Singh Tanwal Head Moharrir and Harish Singh Adhikari Follower were present in the market along with Head Moharrir’s wife on HOLI day. Victim smeared colour on the face of his wife. He tendered apology, which was recorded in G.D. He was brutally assaulted, let off and his body was thrown in slope of a hill. Victim was pronounced dead. His post mortem was conducted. His ante mortem injuries revealed that there was injury on the back of his head that caused his death. Cause of his death was head injury. No evidence was offered to show that victim had consumed alcohol. 20. The G.D. as aforesaid appears to be policemen’s own creation. There was no evidence to suggest that victim returned from the police station hale and hearty when he was let off by policemen. There was no case registered against victim. Then why G.D.? Unless victim was booked for some crime, there was no question of recording G.D. in respect of victim. No criminal case was registered against him. G.D. was their own creation. In law, where was the question of G.D. entry? The same was closed because victim tendered apology. Policeman took his wife on a HOLI day around 11-12 noon. It was a peak time of HOLI. It is an accepted fact that in Kumaon HOLI is celebrated for seven days. The case as projected by policemen through G.D. was demolished by policeman’s wife. Police made out a story and P.W. 5 Radha Tanwal demolished it. The Policemen were not on patrol duty. Policeman was with his wife in the market. When some policemen goes from the police station on some official duty, an entry is made. Likewise when a policeman returns to police station, an entry is made. Police made out a story and P.W. 5 Radha Tanwal demolished it. The Policemen were not on patrol duty. Policeman was with his wife in the market. When some policemen goes from the police station on some official duty, an entry is made. Likewise when a policeman returns to police station, an entry is made. Here the policeman was roaming with his wife and therefore, there was no question of such an entry in G.D. Even if recording of entry of his coming back to Police Station in G.D. was necessary, the same could not have been merged with the apology of victim who was not a culprit. When entire controversy was shown to be settled by compromise, where was the question of recording G.D.? A policeman is not required to make an entry in G.D. while going to market. A policeman is required to make an entry in the G.D. while proceeding on some official duty. 21. The policemen took victim to police station. Thereafter what policemen did was not known to anybody. Body of almost dead person was thrown by police personnel. S.O. (Station Officer) was present in the bridge. He also started beating victim. Five police personnel were involved in the crime. If their case was not under any of the exceptions to Section 300 IPC, their act was covered under punishable Section 302 IPC. If four accused persons assaulted victim, one was present in the bridge who later assaulted victim, thereafter if some of the accused threw dead body of victim, then everybody was liable to be convicted for the offence punishable under Section 302 IPC read with Section 149 IPC. In the instant case one accused was acquitted and therefore, other accused were convicted for the offence punishable under Section 302 IPC read with Section 34 IPC and were awarded imprisonment for life along with a fine of `10,000/- each. Accused Puran Chand Pandey was acquitted of the charges levelled against him under IPC as well as S.C. & S.T. (Prevention of Atrocities) Act, 1989. 22. Learned counsel for the appellants submitted that when a member of S.C. & S.T. commits a crime against another S.C. & S.T., then he is not liable to be convicted under the S.C. & S.T. (Prevention of Atrocities) Act, 1989. 22. Learned counsel for the appellants submitted that when a member of S.C. & S.T. commits a crime against another S.C. & S.T., then he is not liable to be convicted under the S.C. & S.T. (Prevention of Atrocities) Act, 1989. We agree with said argument of learned counsel for the appellants but we need not enter into further details in this context because S.O. was acquitted of the charges levelled against him and the other four (appellants) were convicted only under IPC. They have not been convicted under the S.C. & S.T. (Prevention of Atrocities) Act, 1989. 23. Learned Amicus Curiae for appellant Harish Adhikari submitted in Jail Appeal no. 360 / 2008 that wife of Head Constable who was molested was rescued by police and therefore, policeman slapped victim. Said argument of Amicus Curiae falls flat primarily on the ground that the lady had not deposed before the court in said terms. Secondly, the act of beating is no part of official duty and hence it could not be said that it was done in due discharge of official duty. It is a wrong notion to say that police can slap anybody much less an ordinary citizen in discharge of his official duty. 24. Learned Amicus Curiae further argued that sanction is required under Section 197 (3) Cr.P.C. against the accused. Later on this argument was ‘not pressed’ by learned Amicus Curiae. We make it amply clear that no sanction was required for institution of criminal proceedings against erring police officials. His third submission was that a lenient view should be taken so far as the sentence of appellant is concerned. He submitted that the offence committed by appellant comes within the ambit of Section 304 part-II IPC and not under Section 302 IPC. 25. The third submission of learned Amicus Curiae is devoid of substance. Learned Amicus Curiae placed a ruling of Madhusudhan Sathpathi and others vs. State of Orissa, AIR 1994 SC 474 to say that the appellant had no intention to cause death of victim. Said ruling is not applicable on the facts of this case because factual matrix of both are distinguishable. 26. Post mortem report Ext. Ka-16 of the deceased indicates that he sustained bruises and swelling on the right and left parietal region including the back of head. Said ruling is not applicable on the facts of this case because factual matrix of both are distinguishable. 26. Post mortem report Ext. Ka-16 of the deceased indicates that he sustained bruises and swelling on the right and left parietal region including the back of head. He sustained abrasion on right side of neck, bruises on left elbow, bruises on right arm, on left calf, multiple bruises on back of chest, bruises on right knee and bruises on right calf, amongst others. The cause of death of victim was head injury due to ante-mortem injuries. The nature of injuries clearly indicates that he was brutally assaulted (by policemen). Post-mortem was conducted on 21.03.2008 at 4:30 pm. 27. Now, let us revisit and analyse the eye-witness account of different components of alleged crime as tendered by material witnesses. 28. PW 2 Pramod Kumar who was a helper in poultry farm of victim Dayal Kumar sustained abrasions on left knee, left elbow, right arm and on upper eyelid. Police medico legal report dated 22.03.2008 (Ext. Ka-17) indicates that nature of injuries sustained by him (Pramod Kumar) were caused by blunt object, the duration of which was about 3-4 days. The same corroborated his presence on 20.03.2008 on the place of occurrence where on the calling of Harish Singh Adhikari, he (PW 2 Pramod Kumar) did not go, Harish Singh Adhikari slapped him on his face and beat him in the presence of other policemen. 29. Thereafter, when victim Dayal Kumar came to save him (PW 2 Pramod Kumar) and intervened, all the policemen except SO Puran Chandra Pandey, who was waiting on the bridge, beat Dayal Kumar as well. PW 2 Pramod Kumar escaped from clutches of policemen. PW 2 Pramod Kumar had an occasion to see the beating of Dayal Kumar. He himself was beaten up by policemen earlier. Dayal Kumar incurred the wrath of policemen when he intervened and applied tika on (the forehead of) policemen and PW 5 Smt. Radha Tanwal wife of appellant Head Moharrir Jagdish Tanwal. There is no reason to disbelieve the testimony of PW 2 Pramod Kumar. His presence on the spot was corroborated by the fact that he too sustained injuries on the fateful day. 30. There is no reason to disbelieve the testimony of PW 2 Pramod Kumar. His presence on the spot was corroborated by the fact that he too sustained injuries on the fateful day. 30. It was argued on behalf of appellants that it has come in the cross-examination of PW 2 Pramod Kumar that the names of policemen were disclosed to him by Arjun Singh, Chandan Singh and Dharam Singh but none of them was examined on behalf of the prosecution. The said argument carries no weight for, none of the appellants denied that they were not posted in the police station concerned on the fateful day. PW 2 Pramod Kumar has said, in no uncertain terms, that he knew all the policemen by face but since he did not know them by name, therefore their names could not be mentioned in the first information report. A prudent person will believe the testimony of PW 2 Pramod Kumar, as no one always remembers the names of authorities, much less the names of policemen posted in the police station. Further, it is not the case of the appellants that some other policemen of the police station concerned were involved in the crime. Although, constitutional safeguards have been provided to the accused to maintain silence but the law enjoins upon a person to speak when he is required to speak. 31. PW 3 Nand Kishore was told around 5:30 pm on 20.03.2008 that Dayal Kumar was let off. He was staggering in his walk. When PW 3 Nand Kishore went to make a search for Dayal, along with others, he found Dayal in unconscious state. Dayal did not respond to their calls. The corpus of Dayal was lifted by PW 3 Nand Kishore along with others and was taken to the courtyard of the house of victim. The fact indicates that the victim was maltreated and assaulted by policemen in such a way that he was almost dead. Instead of sending the humiliated and battered Dayal Kumar to his house in a police vehicle, he was left unattended to meet his fate. The reason – the policemen could not reconcile with their bruised ego. How could a person from dalit community dare to apply tika on their forehead as well as the forehead of their women folk ? Instead of sending the humiliated and battered Dayal Kumar to his house in a police vehicle, he was left unattended to meet his fate. The reason – the policemen could not reconcile with their bruised ego. How could a person from dalit community dare to apply tika on their forehead as well as the forehead of their women folk ? To add insult to injury, around 4:00 -4:30 pm policemen took victim in jeep and victim was thrown at a place which leads to Garigad. This fact was told by PW 4 Suresh Lal. After that at around 5:30 a telephone call was received by informant Bahadur Ram that Dayal Kumar was left off. After receiving the said phone call, PW 3 Nand Kishore found Dayal Kumar in unconscious state and was taken to the courtyard of Dayal’s house. 32. PW 6 Gautam Kumar Mandal who owned a medical store in Kafligair deposed that on 20.03.2008 at 6:30-7:00 pm SO Puran Chand Pandey brought Dayal Kumar to his shop (to provide medicines). SO Puran Chandra Pandey was accompanied by Dayal Kumar’s uncle Bahadur Ram. They came in police vehicle. Since Dayal Kumar was in unconscious state, therefore owner of the medical store asked them to go to the hospital situated nearby. In his cross-examination, he said that policemen wanted him to provide first aid to the victim. PW 6 Guatam Kumar Mandal did not ask any question to policemen regarding the cause of unconsciousness of victim Dayal Kumar. 33. PW 7 Bachhiram, mutton seller deposed that accused Harish Singh Adhikari took mutton from his shop around 12:00-1:00 pm. He witnessed that victim Dayal Kumar was being taken by four policemen/accused appellants. He did not see Dayal Kumar coming back from the police station. Thus it is evidenced from the statement of PW 7 Bachhiram that four policemen caught hold of Dayal Kumar. He did not name accused (Puran Chandra Pandey) because SO was standing in the bridge according to PW 2 Pramod Kumar. How then the mutton seller would have named Station Officer who was standing on the bridge? Therefore involvement of accused appellants was established in the crime. 34. He did not name accused (Puran Chandra Pandey) because SO was standing in the bridge according to PW 2 Pramod Kumar. How then the mutton seller would have named Station Officer who was standing on the bridge? Therefore involvement of accused appellants was established in the crime. 34. Learned counsel for the appellants drew attention of the Court towards the statement of PW 7 Bachhiram whereby he said that he gave the statement to the police that neither quarrel took place in front of his shop nor he saw any assault. In fact, this witness clarified in the cross-examination that Dayal Kumar was not beaten up in front of the mutton shop. He did not see policemen assaulting Dayal Kumar there. He saw it at a later point of time that policemen were beating Dayal Kumar. Even if it be conceded for the sake of argument that he did not see victim being beaten by policemen, yet it is clear that he saw victim in the custody of four policemen namely, Harish Singh Adhikari, Ram Singh, Jagdish Tanwal and Naresh Panchpal. The victim did not return from police station in his presence thereafter. 35. PW 17 constable driver Jeevan Lal Tamta said that he went to market with SO Puran Chandra Pandey on receiving a phone call that Dayal Kumar was lying unconscious in the courtyard of his house. SO Puran Chandra Pandey lifted Dayal Kumar in gypsy and took him to Government Hospital, Bageshwar around 9:30 PM. Victim was admitted in emergency ward in unconscious state but the doctors declared him ‘brought dead’. 36. PW 18 Sanjay Kumar Tamta, elder brother of Dayal Kumar Tamta rang up his brother (victim) on 20.03.2008 at 3:00 pm. He tried to contact Dayal Kumar but he did not respond. Instead, the call was received by Harish Singh Adhikari, who informed him that his brother was in custody in PS Jhiroli and he applied smear on the wife of Head Moharrir. Dayal Kumar was said to be in drunken state. When PW 18 Sanjai Kumar rang up again in PS Jhiroli, he wanted to talk to other police officers, who were reported to be not present in the police station. Head Moharrir abused him on telephone and said that he will not spare Dayal Kumar. Dayal Kumar was said to be in drunken state. When PW 18 Sanjai Kumar rang up again in PS Jhiroli, he wanted to talk to other police officers, who were reported to be not present in the police station. Head Moharrir abused him on telephone and said that he will not spare Dayal Kumar. PW 18 Sanjay Kumar heard the cries of Dayal Kumar on telephone and then informed his uncle Bahadur Ram Tamta. Thus it was evidenced that policemen humiliated, tortured, battered and assaulted victim knowing fully well the consequences thereof in such a way that he succumbed to those injuries. The involvement of four accused persons was established. In all five policemen were there, 5th was standing at the bridge. He also maltreated victim but we refrain ourselves from making any comments on his role because neither the State Appeal was preferred against his acquittal nor the revision of the complainant has come up for hearing before us. For proper appreciation, the summary of the evidence of these witnesses is being tabulised herein below : Date Time What happened ? Who deposed ? 20.03.2008 3:27 pm 3:45 pm 7:10 pm Time not disclosed - PW 1 Bahadur Ram Tamta made a telephone call in PS Jhiroli. - Made a telephone call to SP, Bageshwar but the call did not materialise. - Made a telephone call to Reserved Inspector. - Police informed PW 1 Bahadur Ram Tamta that Dayal Kumar was let off from PS Jhiroli at 3:45 pm saying that Dayal Kumar may be in gutters somewhere in drunken state. - On his instructions PW 3 Nand Kishore along with two others went to search Dayal Kumar and carried corpus of Dayal on their shoulders. - Lodged FIR - Went to Mandal clinic, Kafligair along with SO. PW 1 Bahadur Ram Tamta 20.03.2008 22.03.2008 22.03.2008 Time notdisclosed After 8:00 am Time notdisclosed - Went to Kafligair with victim Dayal Kumar - Accused Harish Singh Adhikari beat him up on not responding to his call. - Four policemen were present, 5th policeman was on the bridge. - Victim Dayal Kumar came to save PW 2 Pramod Kumar. - Dayal Kumar applied tika and smear. - Four policemen beat them up and took them to police station. - SO Puran Chand Pandey met them and PW 2 Pramod Kumar escaped. - Five policemen beat Dayal Kumar. - Lodged complaint. - Victim Dayal Kumar came to save PW 2 Pramod Kumar. - Dayal Kumar applied tika and smear. - Four policemen beat them up and took them to police station. - SO Puran Chand Pandey met them and PW 2 Pramod Kumar escaped. - Five policemen beat Dayal Kumar. - Lodged complaint. - PW 2 Pramod Kumar was medically examined in Government Hospital, Bageshwar. PW 2 Pramod Kumar (helper of victim in poultry farm) 20.03.2008 5:30 pm - Bahadur Ram Tamta received a phone call from police station that Dayal Kumar was let off and was staggering in his walk. - He was searched. His corpus found. Dayal Kumar did not respond to calls. - Lifted by PW 3 Nand Kishore and others on their shoulders and carried to victim’s house. PW 3 Nand Kishore 20.03.2008 4:00-4:30 pm - Five policemen took out Dayal Kumar in unconscious state from gypsy and dumped his body on road. PW 4 Suresh Lal 20.03.2008 11:00 am - Went to Kafiligair market along with her husband /head moharrir Jagdish Singh Tanwal PW 5 Radha Tanwal (did not support prosecution story, declared hostile) 20.03.2008 6:30 – 7:00 pm - SO Puran Chand Pandey brought victim Dayal Kumar for providing first aid. Dayal Kumar was in unconscious state. Witness advised them to take Dayal Kumar to any hospital situate nearby. SO Pandey was accompanied by victim’s uncle Bahadur Ram and other policemen. PW-6 Gautam Kumar Mandal 20.03.2008 12:00 – 1:00 pm 2:00 – 2:30 pm - Harish Chandra Adhikari took mutton from his shop. - Four policemen were taking Dayal Kumar to police station. He did not see Dayal Kumar returning from police station. PW -7 Bachhi Ram 20.03.2008 4:30 pm Time notdisclosed. 9:30 pm - Went to see victim along with SO Puran Chandra Pandey on receiving a phone call that victim was in unconscious state at his house. - Saw Dayal Kumar in unconscious state in the courtyard of his house. - Victim was taken to Government Hospital Bageswar, where the victim was declared ‘brought dead’. PW 17 driver Jeevan Lal Tamta 20.03.2008 3:00 pm - Rang up to his younger brother /victim Dayal Kumar who did not respond. - Instead, Harish Singh Adhikari received a call and informed that victim was in custody. - Victim was taken to Government Hospital Bageswar, where the victim was declared ‘brought dead’. PW 17 driver Jeevan Lal Tamta 20.03.2008 3:00 pm - Rang up to his younger brother /victim Dayal Kumar who did not respond. - Instead, Harish Singh Adhikari received a call and informed that victim was in custody. - Had talks with head moharrir Jagdish Tanwal who abused Sanjay Kumar Tamta and said that Dayal kumar will not be spared. - Heard the cries of Dayal Kumar on telephone. - Ram Singh Gunjiyal, head constable informed that victim applied smear to the wife of head moharrir. - PW 18 Sanjay Kumar Tamta then informed his uncle Bahadur Ram Tamta. PW 18 Sanjay Kumar Tamta 37. Culpable homicide is the genus of which murder is a species. Every murder is a culpable homicide but not vice versa. Where there is an intention to kill, the offence is always murder. Whether the offence is culpable homicide or murder depends upon the degree of risk to human life. If death is a likely result, it is culpable homicide. If it is the most probable result, it is murder. The offence is culpable homicide if the bodily injury intended to be inflicted is likely to cause death; it is murder if such injury is sufficient in the ordinary course of nature to cause death. The distinction is fine but appreciable. 38. Whenever the court is confronted with the question whether the offence is murder, or culpable homicide not amounting to murder on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of accused and death leads to the second stage for consideration whether that act of accused amounts to culpable homicide as defined in Section 299 IPC. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300 IPC is reached. This is the stage at which the court should determine whether the facts proved by the prosecution brings the case within the ambit of any of the four clauses of definition of murder contained in Section 300 IPC. This is the stage at which the court should determine whether the facts proved by the prosecution brings the case within the ambit of any of the four clauses of definition of murder contained in Section 300 IPC. If the answer to the question is in the negative, the offence would be culpable homicide not amounting to murder punishable under Section 304 depending, respectively, on whether the second or the third clause of Section 299 IPC is applicable. If this question is answered in the affirmative but the case comes within any of the exceptions enumerated in Section 300 IPC, the offence would still be culpable homicide not amounting to murder punishable under Section 304 IPC. These guidelines were provided by Hon’ble Apex Court in Punnyaya vs. State, AIR 1977 SC 45. Judged by this yardstick, instant case of appellants do not fall within the category of ‘culpable homicide not amounting to murder’. Instead it falls within the category of ‘culpable homicide amounting to murder’. 39. If someone is brutally assaulted causing grievous injury on a vital part like head, death is the most probable result. Degree of risk to human life in such situation is not the likely result but the most probable result. It is murder. It may be inferred that the intention behind such brutal assault was nothing but death. Victim Dayal Kumar was assaulted in such a way and his body was thrown in such a manner that death was the most probable result. When policemen threw body of Dayal Kumar, he was almost dead. Only a divine intervention could save him, which unfortunately, was not to be. Appellants have done an act by doing which they have caused the death of Dayal Kumar. Such an act of appellants amounts to culpable homicide. The facts proved by the prosecution do not bring the case within any of the exceptions enumerated in Section 300 IPC. Hence it is not ‘culpable homicide not amounting to murder’. It is squarely covered by four clauses of definition of murder contained in Section 300 IPC. 40. Criminal appeals preferred on behalf of the accused appellants Jagdish Singh Tanwal, Ram Singh, Narendra Singh Panchpal and Harish Singh Adhikari are thus dismissed. The judgment and order dated 24.12.2008 is therefore, affirmed. The conviction and sentence awarded to the appellants by the learned trial court is accordingly affirmed. The appellants are in jail. 40. Criminal appeals preferred on behalf of the accused appellants Jagdish Singh Tanwal, Ram Singh, Narendra Singh Panchpal and Harish Singh Adhikari are thus dismissed. The judgment and order dated 24.12.2008 is therefore, affirmed. The conviction and sentence awarded to the appellants by the learned trial court is accordingly affirmed. The appellants are in jail. They are directed to serve out the remaining part of sentence as awarded by the trial court and thus affirmed by this Court. Let a copy of this judgment be sent to the court concerned as well as the Superintendents of Jail where appellants are currently serving out their sentence for ensuring compliance of this order. Let lower court record be also sent back.