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2013 DIGILAW 191 (UTT)

Diwan Singh v. State of Uttarakhand

2013-04-08

SUDHANSHU DHULIA

body2013
Judgment Sudhanshu Dhulia, J. 1. Heard Mr. K.S. Bora, Advocate for the appellants and Mr. K.S. Rautela, A.G.A. for the State. 2. The present appeal arises out of the judgment and order dated 01.12.2000 passed by the Sessions Judge, Chamoli in Sessions Trial No.4/1995, whereby both the appellants i.e. Diwan Singh and Gopal Singh were convicted under Section 304 (II) I.P.C. read with 34 I.P.C. and sentenced to undergo rigorous imprisonment for eight years and a fine of Rs.2,000/- each. In default of payment of fine, the appellants have to further undergo rigorous imprisonment for one year. All the sentences are to run concurrently. 3. The incident is said to have been taken place in a hill area in Uttarakhand. It must be stated here at this juncture that in most of the hill areas of Uttarakhand, a revenue official such as “Patwari” is vested with police powers – a system which was started by the British and still continues. 4. The brief facts of the prosecution story are that the Gram Pradhan, Gram Sabha Kurad (Tharali) lodged a First Information Report on 29.07.1995 with the Sub Divisional Magistrate, Tehsil Tharali, District Chamoli alleging therein that Ram Chandra S/o late Keshwanand is the resident of village Kurad, Tehsil Tharali, District Chamoli. He had been informed by the villagers on 29.07.1995 at about 9AM that Ram Chandra S/o late Keshwanand died suddenly. Hence, he requested the S.D.M. to make an investigation in the matter. 5. Initially, the investigation was done by Devi Prasad Purohit PW9, who visited the spot on 30.07.1995 and conducted the inquest and prepared the inquest report, site-plan and sent the dead body for post-mortem. He then registered the case in the G.D. The postmortem on the dead body of the deceased was conducted by Dr. Anant Ram Hatwal PW7, which states as under:- “Age of the deceased was 35 years. Duration of death was about two days. Body was average built. Rigor mortis present over lower limbs and partially in upper limbs. Right eye was open and left was swollen. Mouth was open and tongue NAD. Penis swollen. Anti-mortem injuries 1. Lacerated wound size 5 x 2cm over scalp deep on left occipital region of skull. Fracture of occipital bone was present. Internal examination In the internal examination the doctor found that the neck was congested below the wound, in occipital region. Membranes were congested. Mouth was open and tongue NAD. Penis swollen. Anti-mortem injuries 1. Lacerated wound size 5 x 2cm over scalp deep on left occipital region of skull. Fracture of occipital bone was present. Internal examination In the internal examination the doctor found that the neck was congested below the wound, in occipital region. Membranes were congested. In the skull, fracture was present over occipital bone on left side. In brain, compression was present in area of fracture of occipital bone. Right chamber of heart was full and left chamber was empty. The stomach was empty. In large and small intestine gas were present. In the opinion of the doctor, the cause of death was head injury.” 6. Subsequently, the investigation was handed over to Jagdish Singh Bisht PW8, Revenue Inspector, who submitted a chargesheet against the accused persons under Section 302 I.P.C. 7. Thereafter, the matter was committed to Sessions, where charges against the accused appellants were framed under Section 302 I.P.C. read with Section 34 I.P.C. on 09.05.1996. 8. In order to prove its case, the prosecution examined as many as nine witnesses. Smt. Saraswati Devi, who is the wife of the deceased, was examined as PW1. There are three eye-witnesses to the incident, namely, Ram Chandra S/o Purna Nand PW4, Rai Singh PW5 and Bhoopal Singh PW6. 9. Briefly what has come out from the prosecution side is that Diwan Singh and Gopal Singh are real brothers, and the deceased used to work for the appellants/accused and on the fateful day i.e. 28.07.1995 in the evening, he had gone to the shop of accused in order to demand his wages where some altercation took place between the appellants and the deceased. One of the appellants gave a blow on his head with a wooden log, which ultimately resulted in his death the next day. 10. At this juncture, it needs to be mentioned here that the villages i.e. Kurad and Kuni Parthara are in close proximity to each other and the distance between them is less than are 1 k.m. Ram Chandra (PW4) S/o Porna Nand belongs to village Kurad and he is a witness of the fact that on 28.07.1995 at about 6PM when he was taking tea at the shop of Inder Singh, the deceased came there and also had tea with him. Meanwhile, the accused Gopal Singh reached the shop when Ram Chandra (deceased) asked him to settle his dues, and was thus taken by Gopal Singh to his shop. Ram Chandra PW4 further states that after a few minutes, he heard a noise from the shop of Diwan Singh. He immediately rushed towards the shop of accused Diwan Singh and saw that the deceased was standing between Gopal Singh and Diwan Singh, the two brothers, and accused Diwan Singh was having a “Lakri ka Phatta” (wooden log) in his hand and blood was oozing from the mouth of deceased. He enquired from the deceased about the incident, who replied that Diwan Singh and Gopal Singh have assaulted him. Then, he took the deceased to the shop of Ram Singh where the deceased purchased “beedi” and later went to his house. At that time, his condition looked bad. This witness further states that he heard the next day that Ram Chandra has passed away. This witness was put to a cross examination, but, nothing worthwhile has come out, which may put any kind of doubt on the credibility of his testimony or which may help the defence in any manner. 11. Ram Singh PW5 is an another eye-witness to the incident, who states that he knows both the accused persons as well as the deceased. He states in his examination in chief that on 28.07.1995 at 7 – 7:30PM while he was sitting in his shop, he heard some noise coming from the nearby shop of accused Diwan Singh. From his shop, the front side of the shop of accused is visible. Thereafter, Ram Chandra deceased came to his shop and said that Gopal Singh and Diwan Singh have hit him. 12. This witness also corroborates the fact that at the time of alleged incident, Ram Chandra PW4 was also present on the scene. He also proves the fact that the deceased had purchased beedi thereafter from his shop, same as narrated by Ram Chandra PW4. As in the case of PW4 the next day he was informed that Ram Chandra (deceased) has passed away. This witness too was cross examined but nothing worthwhile has come out, which may put any kind of doubt on the credibility of his testimony or which may help defence. 13. As in the case of PW4 the next day he was informed that Ram Chandra (deceased) has passed away. This witness too was cross examined but nothing worthwhile has come out, which may put any kind of doubt on the credibility of his testimony or which may help defence. 13. The third eye-witness to the incident is Bhoopal Singh PW6, who is a resident of the same village as that of the accused. He states in his examination in chief that on the fateful day i.e. 28.07.1995 when he went to the Bagetal market, accused persons (Gopal Singh and Diwan Singh) and the deceased were fighting in the evening in which he had intervened. He too was informed the next day that Ram Chandra (deceased) has passed away. 14. All these three eye-witnesses have therefore corroborated the fact that on 28.07.1995 at about 7-8 PM, a fight took place between the accused persons and the deceased. However, it is true that none of these three witnesses had actually seen the assault with the wooden log on the head of the deceased. It is again true that there is only one ante-mortem injury on left occipital region of the deceased which is fractured, and which ultimately resulted in the death of the deceased. 15. All the same, the witness which without a doubt inspires the confidence of the court is the testimony of the wife of the deceased i.e. Saraswati PW1. She states in her examination-in-chief that on 28.07.1995 her husband returned to the house at about 6PM, after doing the days’ job and informed her that he has to go and collect his wages from the accused persons i.e. Diwan Singh and Gopal Singh. Her husband then went to the shop of Diwan Singh in order to collect his wages. She further states that the husband and wife with their five small children stay in a house, which is at a lonely place and it takes about one and a half hour to reach “Tharali” i.e. the nearby market. She further states that her husband returned at about 9PM in the night and said that as he demanded wages from the accused persons, he was hit with a wooden log on his head by Diwan Singh, as a result of which he has sustained injury on his head. Thereafter, her husband fell unconscious. She further states that her husband returned at about 9PM in the night and said that as he demanded wages from the accused persons, he was hit with a wooden log on his head by Diwan Singh, as a result of which he has sustained injury on his head. Thereafter, her husband fell unconscious. Since her house is about 2km from the village and she has 5 small children, therefore, she could not leave her house in the middle of the night and seek help, however, the very next day i.e. 29.07.1995 she informed the Gram Pradhan of Tharali i.e. Narayan Singh that her husband has been hit by Diwan Singh and Gopal Singh by a wooden log and is lying unconscious in the house and her report be lodged. However, Narayan Singh, the Gram Pradhan on the contrary informed her that since this matter does not relate to his area, she should go to the concerned Gram Sabha and report the matter. Then, she went to the accused persons i.e. Gopal Singh and Diwan Singh, and confronted them as to why they had hit her husband to which they answered in a careless altitude that they have done it and she may do what she likes. She then returned to her house and found that her husband was still breathing, and then went to the Gram Pradhan of Village Kurad, namely, Motilal who in turn asked her to go to Gram Pradhan, Tharali. Then, she went to Hari Krishna, Gram Pradhan, Tharali, who said that since she has small children, she should return to her village and he would lodge a report about the incident. Being assured that her report will be lodged, she came back to her house only to find her husband dead. By that time, many of the villagers gathered outside her house. The Patwari had also visited her house in the evening. Thereafter, certain documents were prepared. This witness too was put to cross examination, but, nothing worthwhile has come out, which may put any kind of doubt on the credibility of her testimony or which may help defence. 16. Motilal PW2, who was the Gram Pradhan, confirms the fact that wife of the deceased i.e. PW1 approached him in order to lodge the report and, instead of lodging the FIR, he directed her to go to the concerned Gram Pradhan for lodging FIR. 17. 16. Motilal PW2, who was the Gram Pradhan, confirms the fact that wife of the deceased i.e. PW1 approached him in order to lodge the report and, instead of lodging the FIR, he directed her to go to the concerned Gram Pradhan for lodging FIR. 17. In this case, there is absolutely no doubt in the minds of this Court that the alleged incident took place on 28.7.1995 at about 7–8PM and that the accused persons were present at the time and place of the occurrence. It is admitted fact that the deceased sustained injury on his occipital region of skull, which actually resulted in his death and the said fact is proved by the postmortem report. The eye-witnesses i.e. Ram Chandra PW4, Ram Singh PW5 and Bhoopal Singh PW6 have also corroborated the fact that the incident occurred on 28.7.1995 in the evening. 18. Admittedly, however, there was only one blow on left side of occipital region of the skull of the deceased. From the evidence given by Saraswati PW1 it has come that her husband informed that he has been hit by the accused Diwan Singh by wooden log on his head. It has also come in the evidence of Ram Chandra PW4 that when he went to the shop of Diwan Singh, it was Diwan Singh who was carrying the wooden log in his hand. Therefore, the fact that the fatal blow was given by Diwan Singh can be reasonably ascertained from the evidence on record. It is also true that accused Gopal Singh was also present at the seen of occurrence and his presence was natural at his brother’s shop, as the said fact has also come in the evidence of Ram Chandra PW4, Ram Singh PW5 and Bhoopal Singh PW6. But this is itself cannot establish his involvement in the crime. 19. Considering the evidence as discussed above, the offence punishable under Section 304(II) I.P.C. read with Section 34 IPC is not made out, considering the facts that there was only one injury on the occipital region of the skull of the deceased and a wooden log was used as weapon. 19. Considering the evidence as discussed above, the offence punishable under Section 304(II) I.P.C. read with Section 34 IPC is not made out, considering the facts that there was only one injury on the occipital region of the skull of the deceased and a wooden log was used as weapon. All the same, the offence under Section 325 I.P.C. is definitely made out against the accused Diwan Singh as he was having a wooden log in his hand at the time of incident and it was he who had inflicted the blow on the head of the deceased inflicting a “grievous hurt”. 20. Now, the question is as to whether it was only Diwan Singh, who had caused the injury to the deceased, or other co-accused Gopal Singh too was involved in the act in furtherance of a common intention. Although, Gopal Singh was present at the spot, but the prosecution has not been able to prove that there was a meeting of minds in order to establish the offence punishable under Section 34 I.P.C. against the accused Gopal Singh. There is a possibility that being the brother of accused Diwan Singh, Gopal Singh has also been implicated. His presence though natural cannot be linked to the crime. He was hence liable to be given the benefit of doubt, and consequently liable to be acquitted. 21. On the other hand, the presence of Diwan Singh is not only clearly established but in view of the testimony of PW1 (Saraswati Devi) and PW4 (Ram Chandra) it has come that it was Diwan Singh who actually hit the deceased with the wooden log. 22. All the same, on appreciation of the evidence this Court is of the view that the findings of a conviction under Section 304 IPC are liable to be converted to that of Section 325 IPC i.e. causing grievous hurt, for the reasons that though the injury is on a vital part of the body of the deceased, there is only one injury. Secondly the nature of weapon used – wooden log, is not a weapon in any sense of the term and thirdly the injured did not succumb to the injuries immediately but died the next day and there is evidence to suggest that even the injured did not take the injury so seriously, as it has come in evidence that immediately thereafter he purchased “Beedi” from a nearby shop. All this would suggest that the assailant neither intended his death nor was the assault made with the knowledge that it could cause death. Hence the case is clearly out of the purview of Section 304 IPC either Part I or Part II. The injury though is grievous in nature. 23. In view of the above, this Court convicts the appellant Diwan Singh for the offence punishable under Section 325 I.P.C. and sentence him to undergo rigorous imprisonment for 2½ years (i.e. two years and six months). The appeal is partly allowed to the aforesaid extent only. 24. Appellant i.e. Diwan Singh is on bail. His bail is cancelled. He shall be taken into custody forthwith by the police and shall carry out the remaining period of sentence awarded by this Court. The period of sentence already undergone by the appellant-Diwan Singh during trial and appeal shall be adjusted from the sentence awarded to him. So far as the appellant Gopal Singh is concerned, he is acquitted from the charge levelled against him. He is on bail. He need not surrender. His bail bonds are cancelled and sureties are discharged. 25. Let a copy of this judgment be sent to the trial court to make the appellant (Diwan Singh) serve out the sentence in the light of the observations made above.