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2012 DIGILAW 328 (UTT)

BALWANT SINGH v. STATE OF UTTARANCHAL

2012-06-26

SERVESH KUMAR GUPTA, SUDHANSHU DHULIA

body2012
JUDGMENT Per: Hon’ble Sudhanshu Dhulia, J. (Oral) The present appeal, which has three appellants Balwant Singh, Birendra Singh and Smt. Saruli Devi, is preferred against the conviction and sentence passed against them in Sessions Trial No.4 of 1997, State Vs. Balwant Singh and others, whereby all of them have been convicted under Section 302 r/w Section 34 IPC and sentenced to undergo imprisonment for life along with fine of Rs.1,000/- each and in default of the payment of fine, to undergo three months’ additional rigorous imprisonment. 2. Out of these three appellants before this Court, the claim of juvenility was raised by appellant no.2 Birendra Singh on 14.5.2012. In view of the provisions contained under Section 7(A) of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter to be referred as ‘the Act’), this Court permitted the said appellant to produce evidence in support of his claim and the matter was adjourned. On 19.5.2012, an application was filed along with an affidavit, stating that as per the ‘family register’ of the village, being kept by Gram Vikas Panchayat Adhikari, Dhoktigaon, Tehsil Kapkot, District Bageshwar, the actual date of birth of accused Birendra Singh is 07.09.1979 and thus, he claimed the benefit of juvenility. In order to confirm the veracity of the document filed before this Court, on 21.5.2012, we summoned the concerned ‘Gram Vikas Panchayat Adhikari’ who had his jurisdiction on the said village ‘Dhoktigaon’ district Bageshwar. In compliance, Mr. Suresh Chandra Kandpal, Gram Vikas Panchayat Adhikari of the said village was present before this Court along with the register on 18.6.2012. All the same, the said ‘family register’ appeared to be fresh, which created some doubt in the mind of the Court. The new register was kept in the safe custody of the Court in a sealed cover and the concerned officer was directed by this Court to produce the old ‘family register’ from which the records were copied in the new register. On 25.6.2012, the concerned officer Sri Kandpal was present in the Court along with the old family register. It is pertinent to mention here that a ‘family register’ is a record of a family in a village Panchayat area where the records of death and birth, apart from other details are kept. On 25.6.2012, the concerned officer Sri Kandpal was present in the Court along with the old family register. It is pertinent to mention here that a ‘family register’ is a record of a family in a village Panchayat area where the records of death and birth, apart from other details are kept. When the old as well as the new registers were compared, it was found that in the new ‘family register’, the name of head of family is Paanuli Devi, who has been shown as wife of one Ummed Singh, whereas Birendra Singh (appellant no.2) has been shown as son of Paanuli Devi; likewise, Hira Devi has been shown as wife of Birendra Singh, while Km. Deepa, Km. Gayatri, Himanshu and Krishna have been shown as children of accused Birendra Singh. In all, there are seven members in the family. Now, in the old family register, ‘Paanuli Devi’, widow of Ummed Singh, is shown as head of family, whereas Birendra Singh and Smt. Heera Devi have been shown as her son and daughter-in-law. The fact with which we are concerned is that in the old as well as in the new registers, the date of birth of accused Birendra Singh is shown as 07.09.1974. 3. Registry is directed to make photocopies of relevant entries of both the registers and mark them as Ex.‘A’ and ‘B’ respectively. These entries shall be kept with the records of the present appeal. After making photostat of the relevant document, the same shall be handed over to the concerned officer who shall keep the same in his safe custody. 4. It is relevant to mention here that as per Annexure No.SA1 to the affidavit filed by appellant no.2, his date of birth is 07.09.1979. Registry is further directed to mark the application along with the annexure, i.e. the copy of family register, as Ex.‘C’. 5. Now, according to the appellant no.2 Birendra Singh, his date of birth is ‘7.9.1979’ whereas the date of incident is 27.6.1993 and thus, he was less than 18 years of age and consequently, a ‘juvenile’ under the definition of the Act. All the same, this claim of appellant is based apparently on a document, the veracity of which he could not establish. As we have just seen that the original documents speak otherwise. All the same, this claim of appellant is based apparently on a document, the veracity of which he could not establish. As we have just seen that the original documents speak otherwise. From the family registers, the appellant’s date of birth is 07.09.1974, which appears to be his correct date of birth, as it is this date of birth which is recorded in the original registers summoned and perused by this Court. Thus, the appellant no.2, on the date of commission of the alleged crime, i.e. on 27.6.1993, had attained the age of majority and was not a juvenile, as defined under the Act. Therefore, we reject the claim of appellant no.2 Birendra Singh regarding his being juvenile on the date of commission of crime. Consequently, CRMA No.560/2012 stands rejected. 6. It is further to be noted that this claim had never been raised by appellant no.2 at any stage before the trial court but the same was examined by this Court purely in view of the provisions contained under Section 7A of the Act. Another aspect to be seen in this case is that in both the family registers produced before the Court, the date of birth of appellant no.2’s wife is shown as 5.6.1978. If 7.9.1979 is the correct date of birth of her husband, then she is older than her husband. Though it could be a possibility but a rare one, as in a remote village area, it is almost unheard off that the bridegroom is younger than that of the bride. All the factors point to one and only one thing that appellant Birendra Singh has abused the process of the Court and has filed a false affidavit annexing therewith a forged and fabricated document in order to substantiate his claim. We refrain from saying anything further at this juncture and will come to this aspect towards the end of the judgment. 7. Heard learned counsel for the parties at length and perused the entire material available on record. 8. Brief facts of the case are that an first information report was lodged by PW2 Netra Singh on 28.6.1993 at 3:00 AM before the Naib Tehsildar, Bageshwar. (In hills of Uttarakhand, revenue officials such as Naib Tehsildar, Patwari etc. are vested with police powers, this system was initiated during British period but still in force). 8. Brief facts of the case are that an first information report was lodged by PW2 Netra Singh on 28.6.1993 at 3:00 AM before the Naib Tehsildar, Bageshwar. (In hills of Uttarakhand, revenue officials such as Naib Tehsildar, Patwari etc. are vested with police powers, this system was initiated during British period but still in force). In the said FIR, it was stated that on 27.6.1993 (i.e. a day before) at about 4:30 PM, he (PW2) along with Ratan Singh and Balwant Singh, both S/o Khushal Singh as well as Heera Singh S/o Gopal Singh was coming from ‘Gharat’ (water wheel) towards his house. They heard a gunshot from the house of Devendra Singh. As soon as they reached near the said house, Narendra Singh came towards them and shouted that Balwant Singh (appellant no.1) had shot a fire on him and then ran away. The accused, who were chasing Narendra Singh, were Saruli Devi W/o Khushal Singh, Birendra Singh S/o Ummed Singh and Balwant Singh S/o Madho Singh, all belonging to village ‘Dhoktigaon’. Accused Saruli Devi and Birendra Singh were both armed with ‘Khukhris’ (a traditional sharp edged assault knife, generally use as a weapon) whereas accused Balwant Singh was carrying a single barrel gun. 9. The accused persons then came towards Ratan Singh. The accused Saruli Devi first tried to hit Ratan Singh with ‘Khukhri’ but Balwant Singh (PW4) stopped her and caught her hand. Consequently, Ratan Singh tried to escape and ran for his life. All these three accused, namely, Balwant Singh, Birendra Singh and Saruli Devi ran after Ratan Singh. When Ratan Singh reached the house of Hira Singh, he was first caught and assaulted by accused Saruli Devi and Birendra Singh by ‘Khukhris’ with which they were armed. When Hira Singh, Netra Singh and others tried to stop the accused, they were threatened by Balwant Singh, who was armed with a gun, by saying that only such person should come to their rescue who are not bothered about their own life. In other words, they were threatened of dire consequences, if they intervened. These persons therefore could not save Ratan Singh. Accused Saruli Devi and Birendra Singh continued their assault with their ‘Khukhris’ upon Ratan Singh even when he had fallen down and was presumably dead. In other words, they were threatened of dire consequences, if they intervened. These persons therefore could not save Ratan Singh. Accused Saruli Devi and Birendra Singh continued their assault with their ‘Khukhris’ upon Ratan Singh even when he had fallen down and was presumably dead. Thereafter the body of deceased Ratan Singh was dragged from his legs by accused Saruli Devi and Birendra Singh towards the spot shown as ‘E’ in the site plan and after that, it was thrown in a rivulet down below. As we have already noticed, the incident falls within the jurisdiction of Patwari Circle who is invested with the police powers and consequently, PW2 along with other villages went to Tehsildar who is a revenue official and lodged the first information report of the incident on 28.6.1993. 10. The investigation was done by Naib Tehsildar PW6 Devendra Prasad Pandey. He reached the place of occurrence on the next day, i.e. on 28.6.93 at 2 PM and prepared the inquest report. The body was thereafter sealed and sent for the post-mortem which was done on 29.6.1993 at 3 PM. In the post-mortem, as many as 41 ante-mortem injuries have been shown and most of these are incised wounds, caused by a sharp edged weapon. The cause of death, as shown in the autopsy report, was hemorrhage and shock due to sharp weapon injuries. After completion of investigation, a chargesheet was filed against the three accused under Sections 307/302 IPC. 11. The matter was thereafter committed to the court of sessions on 29.1.1997. Learned Sessions Judge, Almora formerly framed charge against all the accused persons under Section 302 r/w Section 34 IPC whereas additional charge was framed against the accused Balwant Singh u/s 307 IPC. The charges were denied by the accused persons and they claimed to be tried. 12. The prosecution in support of its case examined as many as seven witnesses. Out of these witnesses, PW1 to PW4 are the important witnesses who were present at the scene of occurrence, whereas out of these four, PW1 Heera Singh and PW2 Netra Singh are the eyewitnesses of the crime. PW1 as well as PW2, in their examination-in-chief, have narrated the sequence of events as was stated in the FIR. We must remember here that their examination-in-chief as well as cross-examination was done on 8.2.2000 and 1.8.2000 respectively. PW1 as well as PW2, in their examination-in-chief, have narrated the sequence of events as was stated in the FIR. We must remember here that their examination-in-chief as well as cross-examination was done on 8.2.2000 and 1.8.2000 respectively. It is clear from their examination-in-chief that the incident, as per the prosecution version, can be divided into two parts; Part I is the incident where Balwant Singh fires with a single barrel gun upon Narendra Singh and Narendra Singh consequently runs to save his life. Narendra Singh is also the son of Ratan Singh who ultimately is killed. Part II starts when Balwant Singh, Saruli Devi and Birendra Singh, who while chasing Narendra Singh, meet Ratan Singh, who is father of Narendra Singh. They also meet the eyewitnesses of this incident, PW1, PW2 and PW4, namely, Heera Singh, Netra Singh and Balwant Singh. Now, by this time, Narendra Singh, who is a young man, has already escaped. This group of people, i.e. Balwant Singh, Saruli Devi and Virendra Singh, catch Ratan Singh instead and started assaulting him with their ‘Khukhris’. Initially, Ratan Singh escapes and runs for his life towards the house of Netra Singh but he is apprehended and caught by these three assailants and thereafter repeatedly assaulted by ‘Khukhris’. In fact, the assailants continued with their assault even after Ratan Singh falls down on the ground and is presumably dead. 13. PW3 is Narendra Singh who is son of Ratan Singh and he is the one upon whom Balwant Singh had fired and then he ran for his life. But midway, the assailants caught hold of his father instead and killed him. 14. All this witness (PW3) states is that on the fateful evening at about 4 to 4:30 PM, he was teaching in educational programme at the house of one Devendra Singh. When he came out to answer the call of nature, he saw accused Balwant Singh, who was armed with a single barrel gun and who fired at him and then he (Narendra Singh) in order to save his life, ran from the spot and rest of the story we have already narrated as regards his father Ratan Singh coming along with other witnesses and how this witness escaped from the scene etc. Therefore, it is clear that Narendra Singh did not witness his father being assaulted or killed by the accused persons. Therefore, it is clear that Narendra Singh did not witness his father being assaulted or killed by the accused persons. He is an important witness, still he is an important link in the case of prosecution since the assailants had initially chased him and while he could save his life, the assailants caught hold of his father Ratan Singh, who was ultimately killed. 15. PW4 Balwant Singh is another witness, who was on that fateful day, going towards the village after repairing the water wheels. He saw the appellants/accused chasing Narendra Singh. After Narendra Singh escaped, the accused started chasing Ratan Singh. This witness, at this stage, states that he got very scared when he saw the assailants armed with deadly weapons, so in order to save his life, he ran towards his house. He is still an important witness because he has linked the two incidents and his presence is also, not in doubt. Though he is not a witness to the actual lynching, yet he is an important witness to the events which immediately preceded the lynching. 16. Another important witness produced by the prosecution is PW7 Dr. L.D. Pant, who conducted the post-mortem on the deceased on 29.06.1993. He has affirmed the veracity of the autopsy report and has stated that all the injuries could be caused by a sharp edged weapon, though in his cross-examination he states that these wounds could also be caused by a weapon such as Axe etc. He further noticed that not only the incised wounds were present on the body of the deceased, there were fractures as well such as skull and ribs fracture. Regarding the fracture of skull by a blow of Khukhari, he stated that in order to cause such an injury (fracture of skull bone) the weapon should not be only a sharp edged weapon but it should also be heavy weapon, such as Axe or old traditional Khukhree. 17. PW5 and PW6 are the formal witnesses of the crime and they do not have much relevance as the facts in controversy are admitted to the defence. 18. 17. PW5 and PW6 are the formal witnesses of the crime and they do not have much relevance as the facts in controversy are admitted to the defence. 18. Both the learned counsel, appearing before this Court on behalf of the appellants, argued that the appellants were not involved in the commission of crime for the reason that when the investigating team had come to village on the next day of incident, i.e. on 28.06.1993 in the evening, all the three appellants were present in the village from where they were arrested. In other words, had they committed crime a day before, their normal conduct would have been to run away from the scene of crime. It was thus argued that this conduct of appellants shows that they were not involved in the crime. 19. Moreover, learned counsel also casts a doubt on the presence of PW3 Narendra Singh on the relevant date and time at the place of occurrence, inasmuch as, according to PW3, when he was attacked by appellant no.1 Balwant Singh, he ran for his life but he did not even bother that it was his father who had been caught and assaulted by the appellants. In other words, he made no efforts to save his father. It was argued that this is an unnatural conduct on the part of a son which creates a reasonable doubt about his presence on the scene of crime. 20. The defence has further made lengthy arguments that such injuries on the person of deceased could be inflicted even by falling down in a ravine in a hilly terrain, therefore, merely the fact that there are 41 incised wounds on the body of the deceased, it would not mean that he was attacked in the manner it has been depicted by the prosecution. 21. All the three grounds relied upon by the defence have no legs to stand on for the simple reason that this incident has occurred in a remote hilly area where such crimes are extremely rare. This Court is also conscious of the fact that the appellants before the Court may not be hardened criminals. But still a crime has happened. All the three grounds relied upon by the defence have no legs to stand on for the simple reason that this incident has occurred in a remote hilly area where such crimes are extremely rare. This Court is also conscious of the fact that the appellants before the Court may not be hardened criminals. But still a crime has happened. The manner in which it has happened where villagers have killed another villager of the same village and the incident witnessed by all other villagers, not much purpose could have been solved even if the appellants would have momentarily escaped, or were not present the next day. There is nothing unnatural on the part of appellants by being present the next day. 22. The conduct of PW3, who is the son of deceased, is also not unnatural, considering that all the three accused were armed with deadly weapons and his immediate concern was to somehow escape from the scene of crime, which he could manage. 23. The third defence that all these injuries on the person of deceased could be caused by merely falling in the ravine, is also not plausible. The deceased has sustained as many as 41 injuries, out of which 36 are incised wounds. We could have ignored one or two incised wounds but there are as many as 41 ante-mortem injuries (including 36 incised wounds) on the body of deceased which are on vital parts. Even if we give the greatest flight to our imagination, we cannot reach a conclusion that such injuries could have been caused by falling into a ravine. 24. Therefore, all grounds taken by defence are of no useful purpose to them. The court below has rightly convicted and sentenced all the three accused/appellants Balwant Singh, Birendra Singh and Smt. Saruli Devi under Section 302 read with Section 34 IPC to undergo imprisonment of life along with fine of Rs.1,000/- each and in default, to undergo additional rigorous imprisonment for three months. We, therefore, find no anomaly in impugned judgment and order passed by the court below. The appeal is bereft of any merit and liable to be dismissed. The appeal is, accordingly, dismissed. The appellants are on bail. Their bail bonds are cancelled and sureties are discharged. Let the appellants be taken into custody to serve out the sentence as imposed by the trial court against each of them. 25. The appeal is bereft of any merit and liable to be dismissed. The appeal is, accordingly, dismissed. The appellants are on bail. Their bail bonds are cancelled and sureties are discharged. Let the appellants be taken into custody to serve out the sentence as imposed by the trial court against each of them. 25. As we have indicated at the outset that appellant Birendra Singh had moved an application, supported by his affidavit annexing therewith a certified copy of the family register as Annexure SA1, raising the claim of juvenility on the date of commission of crime. He has strived to show by the said document that his date of birth is 07.09.1979 and thus, he was 12 below 18 years of age and was a juvenile, as envisaged under the provisions of the Act. But we have found an interpolation in the document thereby changing the year of birth from 1974 to 1979. We have arrived at this conclusion on the basis of original record produced in the court by Mr. Suresh Chandra Kandpal, Gram Vikas Panchayat Adhikari that the actual date of birth of Birendra Singh is 07.09.1974. Consequently, on the date of the commission of crime, which is 27.6.1993, he was 18 years and 9 months of age, hence, a major and not a juvenile. What has, however, been done by the accused Birendra Singh before this Court may be an offence punishable under Sections 466, 468 and 471 IPC. In these circumstances, we evoke our powers vested under Section 340 read with section 195 Cr.P.C. and direct Mr. M.C. Upadhyay, Bench Secretary of the Court to file a complaint in the court of Chief Judicial Magistrate, Nainital against the appellant no. 2 Birendra Singh for appropriate action. He is hereby authorized to sign the complaint. It is made clear that the authorities shall not be prejudiced in any manner by any of the observations made by this Court against the accused Birendra Singh but shall examine the case on its own merit.