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Uttarakhand High Court · body

2012 DIGILAW 643 (UTT)

Dhoom Singh v. State of Uttaranchal

2012-10-05

BARIN GHOSH, U.C.DHYANI

body2012
JUDGMENT : U.C. Dhyani, J. Present criminal revision was preferred by complainant Dhoom Singh, challenging the acquittal of the accused-respondents Moti, Tejpal, Ravipal, Govind and Smt. Rumali in Sessions Trial No. 218 of 1997, of the charges of offences punishable under Section 147, S.148, S.323 read with S.149, S.452 and S.302 read with S.149 of IPC. Learned court below also acquitted accused-respondent Govind of the charge of offence punishable under Section 27 of the Arms Act in Sessions Trial No. 220 of 1997. 2) Revisionist Dhoom Singh s/o Nathu wrote a complaint (Ext. Ka-1) to Officer In-Charge Police Outpost Gowardhanpur, police station Manglore, District Haridwar, complaining about the murder of Subhash. According to the revisionist, on 24.12.1996, at 4:45 P.M., when he alongwith his son Subhash, Sukhpal, Ramesh, Satpal and Rishipal were crushing sugarcane, his another son Amit Kumar came rushing to him. Amit Kumar told that Anand, armed with licensed gun; Moti, armed with rifle; Tejpal and Ravipal, both carrying small guns; Mahipal having axe; Govind and Smt. Rumali carrying lathis (sticks) were inflicting blows on Amit Kumar’s mother. On hearing the same, when complainant-revisionist and his son Subhash were going towards their house, accused persons met them outside their house. Co-accused Anand (convict in Sessions Trial No. 218 of 1997) fired upon his son Subhash, resulting into his death on the spot. Accused-respondent Rumali inflicted blows of lathi on revisionist Dhoom Singh. The incident was witnessed by workers working in the cane crusher and other people. The genesis of incident was a dispute between the revisionist and the accused persons over digging up of a pathway. Accused persons dug up trench on the pathway, obstructing passage to revisionist’s house on 23.12.1996, to which he (revisionist) objected. On the basis of said complaint, a chik FIR (Ext. Ka-21) was registered on 24.12.1996 at 7:00 P.M. against all the accused persons relating to offences punishable under Sections 147, 148, 149, 302, 323 and 452 of IPC. A subsequent chick report (Ext. Ka-19) was also registered on 14.01.1997, at 9:15 P.M. against convict (non-respondent) Anand and respondent Govind relating to offences punishable under Sections 25 and 27 of Arms Act. After investigation, charge sheets were submitted against the accused persons and when trial commenced, charges were framed against them, to which they pleaded not guilty and claimed trial. Ka-19) was also registered on 14.01.1997, at 9:15 P.M. against convict (non-respondent) Anand and respondent Govind relating to offences punishable under Sections 25 and 27 of Arms Act. After investigation, charge sheets were submitted against the accused persons and when trial commenced, charges were framed against them, to which they pleaded not guilty and claimed trial. 3) Prosecution examined ten witnesses viz., PW1 Dhoom Singh (informant/revisionist and injured eyewitness), PW2 Amit Kumar (injured eyewitness), PW3 Smt. Shakuntala (another injured eyewitness), PW4 Atar Singh (signatory to inquest report), PW5 Tej Singh (declared hostile), PW6 Dr. Narendra Singh (who medically examined injured revisionist Dhoom Singh), PW7 S.O. S.N. Yadav (who investigated the case and submitted charge sheet), PW8 Dr. O.P.Sharma (who conducted postmortem on the dead body of Subhash), PW9 S.I. Bhawar Singh (who investigated the crime relating to offences punishable under Sections 25 and 27 of Arms Act) and PW10 Constable Ompal Singh (who prepared chick FIR and made entry in G.D.). After the prosecution evidence was closed, incriminating evidence was put to respondents under Section 313 of Cr.P.C., in reply to which they said that they have been falsely implicated in the case. D.W.1 Surendra Kumar, Lekhpal was examined in defence to show that there was no pathway on the fields of non-respondent Anand, leading to the cane crusher of revisionist Dhoom Singh. After hearing both the sides, learned trial court convicted accused Anand for the offence punishable under Sections 302 of IPC, but other accused persons (respondents herein) namely, Moti, Tejpal, Ravipal, Govind and Smt. Rumali were acquitted of all the charges framed against them. Aggrieved against said order, present criminal revision was preferred by the complainant-revisionist Dhoom Singh. It is pertinent to mention here that respondent Govind died during the pendency of revision and, therefore, case as against him stood abated vide order dated 06.09.2012. 4) PW1 Dhoom Singh proved the contents of his complaint (Ext. Ka-1) and said that on the fateful day, when he alongwith his son Subhash and other people were working in cane crusher, his another son Amit came rushing to him and told that Govind, Mahipal, Tej Singh, Moti Ram, Ravipal, Anand and Rumali were assaulting his mother with the weapons they were carrying in their hands. Ka-1) and said that on the fateful day, when he alongwith his son Subhash and other people were working in cane crusher, his another son Amit came rushing to him and told that Govind, Mahipal, Tej Singh, Moti Ram, Ravipal, Anand and Rumali were assaulting his mother with the weapons they were carrying in their hands. On hearing the same, when PW1 and his son were going towards their house, accused (non-respondent) Anand fired upon Subhash with his licensed gun, as a consequence thereof, Subhash died immediately on the spot. Moti fired upon PW1, as a result of which PW1 fell down, but somehow managed to escape unhurt. Accused Rumali gave PW1 blows of lathi. PW2 Amit Kumar, eyewitness and son of PW1, said that accused Govind and Mahipal gave a blow of lathi and blunt side of axe on his mother Shakuntala. He went rushing to the cane crusher. Anxiety of well being of Shakuntala drove them towards their house. Accused (non-respondent) Anand fired upon Subhash, which resulted into his death. Thereafter, accused-respondents Moti and Ravipal fired upon PW1 Dhoom Singh, but he escaped unhurt. Accused-respondent Rumali gave a blow of lathi on PW1. PW3 Shakuntala said that when her son Amit Kumar saw that she was being beaten up by accused persons, he went to his father and brother to inform, whereupon Subhash, another son of this witness, came rushing to the house. When Subhash reached near his house, accused (non-respondent) Anand fired upon him with his gun, as a result thereof, he died immediately on the spot. Thereafter, accused-respondent Moti fired upon PW1 Dhoom Singh, but he somehow managed to escape unhurt. PW3 Shakuntala was beaten up by accused-respondent Govind and accused Mahipal with fists and lathis. Accused-respondent Rumali gave a blow of lathi on PW1’s hands. Such injury was examined in the hospital on a subsequent date. This was principally the evidence, in a nutshell, which was directed against the accused-respondents. 5) Although the prime accused (non-respondent) Anand was convicted by learned court below on the strength of eyewitness account rendered by PW1, PW2 and PW3, duly supported by the evidence of PW8 and PW6, but learned trial court did not believe such part of evidence of PW1, PW2, PW3 and PW6 which was given in reference to respondents in this criminal revision. The reasons were not far to seek. The reasons were not far to seek. The participation of accused Anand (non-respondent) was established beyond reasonable doubt, in as much as eyewitness account of PW1, PW2 and PW3 was corroborated by PW8 and further supported by Ballistic Expert’s report which confirmed that SBBL,12 bore gun no. 2134(i.e. gun used by non-respondent Anand) was used in the commission of murder of Subhash. On the strength of such evidence, trial court believed the participation of Anand (non-respondent) in the commission of crime and he was thus rightly convicted by the court below, but the case of present respondents was not identical or even at par with the non-respondent, in as much as, there was no evidence that rifle carried by Moti (respondent) was used. There was no firing from such rifle. Assuming that fire from rifle was shot, the Investigating Officer did not find any shell which emanated from such rifle. Thus, the use of such rifle was ruled out. Another respondent Tejpal also did not fire, or assuming that he fired, but did not hit victim, for there was only one firearm wound of entry on the dead body of Subhash, as was evidenced by PW8 Dr. O.P. Sharma. The Medical Officer might have found 35+12 pellets on the face and neck of the victim, but such pellets were dispersed from one gunshot only. Hence, it cannot be said with precision that respondent Tejpal or respondent Moti used firearms. 6) Further, there was no firearm injury to anyone except the deceased Subhash, for which the law has already taken its course by convicting non-respondent Anand. If revisionist Dhoom Singh suffered traumatic swelling on his left elbow joint on hind arm and upper forearm, it cannot be said that those injuries were sustained by the blow of lathi or the blunt side of axe, which stick and axe were said to be in possession of two of the respondents. Still further, revisionist Dhoom Singh did not go for medical examination on 24.12.1996 or 25.12.1996, but went to the doctor only on 27.12.1996, which indicated that the injury was ordinary one. Such injury, however, confirmed the presence of revisionist on the place of occurrence and, that is why, his evidence was accounted for while convicting non-respondent Anand, but his simple injury was not indicative of the fact that the same was caused by two of the respondents. Such injury, however, confirmed the presence of revisionist on the place of occurrence and, that is why, his evidence was accounted for while convicting non-respondent Anand, but his simple injury was not indicative of the fact that the same was caused by two of the respondents. The same only indicated his (revisionist’s) presence on the place of occurrence. Who inflicted blow, which caused traumatic swelling on his left elbow joint, was not established. Thus, the participation of the respondents in the crime, as also their presence on the place of occurrence was not established beyond reasonable doubt. Because of the selfsame reason they could not be convicted for the offence punishable under Section 149 of IPC. Eyewitness account was not corroborated scientifically in relation to the present respondents. The case of accused Anand (non-respondent) was different. In his reference, eyewitness account of PW1, PW2, PW3 was corroborated by the medical evidence as well as the Ballistic Expert’s evidence, but the same was not applicable to the respondents of this case. Accordingly, this Court finds that the case of respondents and accused Anand (non-respondent) was distinct from each other and was appropriately dealt with by learned court below. The case against the present respondents was not proved beyond reasonable doubt. In this view of the matter, the finding recorded by learned trial court in respect of present respondents is not interferrable. 7) The criminal revision is devoid of merit and the same is accordingly dismissed.