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2012 DIGILAW 240 (UTT)

PREM v. STATE OF UTTARANCHAL

2012-05-24

SERVESH KUMAR GUPTA, SUDHANSHU DHULIA

body2012
JUDGMENT Hon’ble Sudhanshu Dhulia, J. Criminal appeal No. 51 of 2003 arises out of judgment and order dated 29.01.2003 passed by learned Sessions Judge in Session Trial No. 194 of 1997, State Vs Prem & others whereby said court has convicted the accused/appellants, namely, Prem, Naresh and Rajbeer under Section 302 read with 34 of I.P.C. and sentence for life imprisonment and under Section 148 of I.P.C. sentenced each of them to rigorous imprisonment for one year. 2. Another Appeal No. 134 of 2003 has been preferred by the Government against the same judgment whereby the court has acquitted the accused/respondents, namely, Pawan and Rati for the offence punishable under Sections 147, 148, 302/149, 323/149, 325/149 of I.P.C. As these appeals arise out against the same judgment and order, therefore, both these appeals are being decided by this common judgment. 3. Brief facts of the prosecution case are that as per the First Information Report, which was lodged on 02.02.1996 that the complainant – Ilam Chand along with another person, of his village, Mahendra S/o Manphool Singh were coming from Sultanpur towards their village on foot. When they reached near the khet (field) of Raja Ram near brick kiln, they saw the accused, namely, Prem S/o Shashi Ram, Pawan S/o Rati Ram, Naresh S/o Khoob Chand, Rajbeer S/o Balbeer and Ratiram were standing there having Palkati (a sharp edged weapon mounted on a lathi) and lathies in their hands. They also saw that the brother of the complainant – Ramji Lal and cousin Sukhbeer Singh were approaching on a motorcycle. Suddenly, the accused persons attacked Ramji Lal and Sukhbeer Singh, with their weapons. The accused persons took Ramji Lal into the KHET, leaving behind Sukhbeer Singh in an injured condition. Thereafter, the complainant – Ilam Chand and Mahendra rescued the injured – Sukhbeer Singh and took him to their village and thereafter admitted him in a hospital at Haridwar. On the very next day, when they returned, they found the dead body of the deceased - Ramji Lal had been recovered from the KHET of Raja Ram. Consequently, the police on the basis of the First Information Report started investigation in the matter. The investigation of the case was entrusted to S.O. – Anil Kumar (P.W.6). The police reached the place of occurrence and prepared inquest report, which is Ext. Ka. 10. Consequently, the police on the basis of the First Information Report started investigation in the matter. The investigation of the case was entrusted to S.O. – Anil Kumar (P.W.6). The police reached the place of occurrence and prepared inquest report, which is Ext. Ka. 10. The police also prepared the site plan, which is Ext. Ka. 7 and 8. The police also collected the blood stained soil and plain soil, which is Ext. Ka.6. Thereafter, the police arrested the accused, namely, Prem and Rajbeer on 06.02.1996 and recovered weapons, used in the commission of crime, on the pointing out of these accused. The Investigating Officer after completing the investigation submitted the chargesheet before the court concerned against the accused – Prem, Pawan, Naresh, Rajbeer and Rati Ram, under Sections 147, 118, 307, 302 of I.P.C. 4. After submission of chargesheet, the learned Magistrate committed to the Court of Sessions for trial and the learned Sessions Judge, after hearing the parties, framed the charge against the accused – Prem, Pawan, Naresh, Rajbeer and Rati Ram under Sections 147, 302/149, 323/149 and 325/149 of I.P.C. and under Section 148 of I.P.C. against the accused – Prem, Naresh and Rajbeer. 5. The prosecution in support of its case produced as many as seven witnesses, namely, Ilam Chand (P.W.1) – complainant, Sukhbeer (P.W.2) - eyewitness, Sri Bhola Singh (P.W.3) – brother of the complainant, Dr. R.K. Pandey (P.W.4) – Radiologist, Dr. Chiranji Lal Vashisth (P.W.5) – who conducted the postmortem of the deceased, Anil Kumar (P.W. 6) – Investigating Officer and H.C. Kailash Chand Tyagi (P.W.7) – Investigating Officer. The accused/respondents denied the charges and claimed trial and produced Narendra Singh (D.W.1) and Lal Kali (D.W.2) in support of their case. 6. The statement of the accused/appellant was recorded under Section 313 of Cr.P.C. wherein they have denied all the allegations levelled against them by the prosecution. The accused pleaded not guilty and claimed to be tried. 7. The trial court after having considered the material available on record and hearing learned counsel for the parties convicted the accused Prem, Naresh and Rajbeer under Section 302 read with 34 of I.P.C. and sentence for life imprisonment and under Section 148 of I.P.C. sentenced each of them to rigorous imprisonment for one year and has acquitted the accused - Pawan and Rati Ram vide judgment and order dated 29.01.2003. 8. Heard Mr. 8. Heard Mr. Rajeev Sharma, Advocate, present for the appellants, Mr. P.S. Bohara, Brief Holder, present for the State and perused the record. 9. There are two main eyewitnesses of the incident, namely, Ilam Chand (P.W.1), who was the complainant and Sukhbeer Singh (P.W.2), who was the injured eyewitness. According to Ilam Chand (P.W.1), the incident was of 1st February, 1996, which took place between 06:00-06:30 in the evening. According to him, when he, along with another person, namely, Mahendra of his village reached near the KHET of Raja Ram, they saw Prem, Rajbeer, Naresh armed with PALKATI while Pawan and Rati Ram armed with LATHIES. Sukhbeer and Ramji Lal came towards them on a motorcycle suddenly; all the five accused hit them, as a result of which both of them fell down from their motorcycle. These two persons i.e. Ilam Chand and Mahendra raised an alarm, as a consequence of which the assailants left Sukhbeer and lifted Ramji Lal from the place of occurrence. Both these persons were frightened and they saw Sukhbeer Singh, who had sustained injuries on his face, and was unconscious. He further states that they had put Sukhbeer Singh on motorcycle and carried him to the village, from where he was taken for treatment and was admitted in the hospital at Haridwar. Thereafter, the next morning between 05:00-05:30, when they were returning from Haridwar towards their village and had reached crossing and the KHET of Raja Ram, they saw hundreds of men crowded at the place of occurrence, where they discovered the dead body of Ramji Lal on the agricultural field. According to this witness, the deceased – Ramji Lal was his (complainant’s) brother and residing in the same village. He further states that his family and the family of the assailants have a lot of disputes regarding land and properties. 10. Sukhbeer Singh (P.W.2), who is the injured eyewitness of the occurrence, is a lawyer by profession and practices in the Tehsil court. He states in his examination-in-chief firstly that he knows all the five accused. He further states that on the date of occurrence, he was coming on a motorcycle, which was being driven by his cousin – Ramji Lal (deceased) and he was pillion rider. He states in his examination-in-chief firstly that he knows all the five accused. He further states that on the date of occurrence, he was coming on a motorcycle, which was being driven by his cousin – Ramji Lal (deceased) and he was pillion rider. He states that the occurrence took place on 1st February, 1996 at about 06:00-06:30 p.m. when they reached near the KHET of Ramji Lal, three persons, namely, Prem, Rajbeer and Naresh armed with PALKATI and two persons, namely, Pawan and Rati Ram armed with LATHIES were standing on the way of the motorcycle. All the five persons hit on them with the PALKATI and LATHIES, as a consequence of which, they both fell down from the motorcycle. At that time, Ilam Singh (P.W.1) and Mahendra who were standing nearby raised alarm and consequence of which, the assailants took away Ramji Lal and he (Sukhbeer) was lifted from the place of occurrence and was rescued by Ilam Chand and Mahendra. Since he was injured, he was admitted in the hospital at Haridwar. 11. Bhola Singh (P.W.3), who was scriber of the report. This witness has stated that the deceased – Ramji Lal and injured – Sukhbeer Singh are his brothers. This witness proved the complaint, which he had written on the oral transcription/dictation of his brother Ilam Chand. Amongst other witnesses, the important witness in the present case is Dr. Chiranji Lal Vashisth (P.W.5), who conducted postmortem on the body of the deceased on 02.02.1996 and found following ante mortem injuries on the body of the deceased:- 1. Incised wound 16cm X 10cm X brain cavity deep Brain matter had come out which was on the right side of the brain. 2. Incised wound 7cm X 3cm X bone cut on deep behind the neck. 3. Incised wound 10cm X 4cm on the right side of the neck. 4. Incised wound 8cm X 1½cm X bone deep on the right side of the forehead where frontal bone was fractured. 5. Incised wound 8cm X 4cm X bone deep on the left side of the head, which had also cut the left ear. 6. Incised wound16cm X 5cm bone deep cut on the right side of wrist. 7. Incised wound 7cm X 2cm X bone cut on the right hand and on the base of the right hand finger. 8. 5. Incised wound 8cm X 4cm X bone deep on the left side of the head, which had also cut the left ear. 6. Incised wound16cm X 5cm bone deep cut on the right side of wrist. 7. Incised wound 7cm X 2cm X bone cut on the right hand and on the base of the right hand finger. 8. Small finger of the right hand was cut and there was in injury of 1½cm X 1½cm. 9. Incised wound 5cm X 1cm X bone deep on the right knee. 12. On internal examination, he found that the head was fractured and brain membrane was also torn and the brain matter had come out. It has also opined that the death took place one day prior i.e. on 01.02.1996. According to the doctor, all the injuries sustained by the deceased, were cause by sharp edged weapons. 13. On behalf of the appellants, it has been stated in defence that the investigation was even started before lodging of the First Information Report and the First Information Report is antedate. Consequently, they were falsely implicated by the prosecution. This contention of the appellants, which was taken before the trial court, was not considered for the simple reason that the inquest report is subsequent to the investigation. The record shows that the police had already registered Case Crime No. 15 of 1996, on which further inquiry was going on. Therefore, it is clear that the investigation started after the lodging of the First Information Report. 14. The other contention of the appellants is that Sukhbeer Singh (P.W.2) had given his statement under Section 161 of Cr.P.C. before the police highly belatedly i.e. after fifteen days of the incident and, therefore, this creates doubt in the prosecution story. According to the prosecution though this can be explained as the injured – Sukhbeer Singh sustained injuries on his mouth and face. The prosecution had produced Dr. R.K. Pandey (P.W.4), who found following injures on the body of Sukhbeer Singh:- 1. Lacerated wound 1.5cm X 0.4cm X muscle deep on middle part of lower lip. Clotted blood present. Bleeds on eleening. 2. Lacerated wound 2cm X 0.4cm X muscle deep on outer surface of lower gum close to base of incissor tooth. Injury kept 11.0. Referred to dental surgeon, X-ray advised. 3. Lacerated wound 1.5cm X 0.4cm X muscle deep on middle part of lower lip. Clotted blood present. Bleeds on eleening. 2. Lacerated wound 2cm X 0.4cm X muscle deep on outer surface of lower gum close to base of incissor tooth. Injury kept 11.0. Referred to dental surgeon, X-ray advised. 3. Contusion 1cm X 0.5cm on middle part of front of upper lip, crowns of central incissors at upper jaw fractured. Kept 11.0. referred to dental surgeon. 15. This witness also opined that the injuries caused due to blunt object. As it is clear from the above injuries that Sukhbeer Singh sustained most of the injuries on his mouth and face. He was not in a position to give statement under Section 161 of Cr.P.C. before the police, therefore, he gave his statement before the police after fifteen days when he had somewhat recovered and this contention of the defence is also not well founded. 16. The third contention of the defence was regarding the incident taking place on 1st February, 1996 at about 06:00-06:30 p.m., which means that there was no source of light and the appellants have falsely been implicated in the commission of crime, as it was difficult for the complainant as well as injured to identify the assailants. This contention of the defence was also not accepted by the trial court as well as by this Court in the present appeal for the simple reason that the sunset has been shown immediately after 06:30 p.m., although there was no bright light, but there was enough light at the relevant time for the complainant to identify the assailants for the reason that they all belong to the same village and it was not difficult for them to identify the assailants. It is further to be noted that Sukhbeer Singh (P.W.2) sustained injuries in person, therefore, his statement appears to be trustworthy, wherein he has named the appellants. He is an injured eyewitness. 17. The other contention of the appellants is that the injured witness Sukhbeer Singh and the complainant are brother and there is no single independent eyewitness in the present case, which supports the prosecution case. This contention of the appellants has again finds no force by the court below for the simple reason that in the present crime, the presence of these witnesses appears to be quite natural. This contention of the appellants has again finds no force by the court below for the simple reason that in the present crime, the presence of these witnesses appears to be quite natural. Therefore, this contention of the appellant is not accepted by the trial court and relied upon the statement of the complainant – Ilam Chand (P.W.1) and Sukhbeer Singh (P.W.2), particularly, who sustained injuries in the incident and prosecution produced them as an eyewitnesses. 18. We find that the accused, namely, Prem, Naresh and Rajbeer were having PALKATI in their hands and we have already noticed in the preceding paragraphs that the injuries which have been caused on the deceased – Ramji Lal could have been caused only by the sharp edged weapons like PALKATI. These are not the injuries which could have been caused by LATHIES, therefore, the presence of Pawan and Rati Ram showing armed with LATHIES at the place of occurrence creates doubt in the prosecution story and only for this reason, the lower court acquitted two accused, namely, Pawan and Rati Ram. It is also to be noted that the injuries caused on the body of Sukhbeer Singh may or may not be caused by LATHI, but in the opinion of the Dr. R.K. Pandey (P.W.5), the injuries which have been caused to Sukhbeer Singh could have been caused by falling on the ground from the motorcycle and for this reason as well Pawan and Rati Ram, who were shown to be carrying LATHIES, their presence becomes doubtful. For that reason they have been rightly acquitted by the court below and the accused/appellants, namely, Prem, Naresh and Rajbeer were present on the spot having PALKATI and attacked the deceased – Ramji Lal and Sukhbeer Singh is not in doubt. 19. For the reasons, stated above, we do not find any force in appeal No. 51 of 2003, preferred by the accused/appellants as well as Government Appeal No. 134 of 2003 filed by the State against the acquittal of the accused – Pawan and Rati Ram, which, in our opinion, are liable to be dismissed. Accordingly, both the appeals are dismissed. The conviction and sentence recorded by the trial court against the accused/appellants as well as order of acquittal against respondents, namely, Pawan and Rati Ram is hereby affirmed. The accused/appellants, namely, Prem, Naresh and Rajbeer are on bail; their bail-bonds are hereby cancelled. Accordingly, both the appeals are dismissed. The conviction and sentence recorded by the trial court against the accused/appellants as well as order of acquittal against respondents, namely, Pawan and Rati Ram is hereby affirmed. The accused/appellants, namely, Prem, Naresh and Rajbeer are on bail; their bail-bonds are hereby cancelled. Let a copy of this judgment, alongwith the records of the court below, be sent back to the Trial Court to make accused/appellants to serve out the sentence awarded to them.