Bharat Singh & Ors. v. State of Uttaranchal (now State of Uttarakhand)

perused the lower court record. (3) Prosecution story, in brief, accused/appellants Bharat Singh and Anil Dev Surira were registered contractors of the Public Works Department, Ghansali. The deceased ( Munendra Dutt Pant) was the Senior Clerk of said department. On 15.12.2003, at about 8.00 p.m., near bus stand in Ghansali, PW3 Manoj Joshi saw 3 accused/appellants beating Muninder Dutt Pant. He informed about the incident to the Executive Engineer of the department where after PW3 Manoj Joshi alongwith PW1 Pareshwar Badoni and PW2 Anant Ram took injured Muninder Dutt Pant to nearest Primary Health Center Pilkhi, where he was declared brought dead. First Information Report (Ex-A1) got lodged by PW3 Manoj Joshi with Patwari Pilkhi. (In Uttarakhand Hills certain revenue officials are given police powers). On the basis of said report PW10 Sunder Lal Badoni, Patwari, Pilkhi, registered Crime No. 08 of 2003 on

15.12.2003, at about 10.00 p.m. against the accused /appellants Anil Dev Surari and Bharat Singh in respect of offence punishable under section 302 of I.P.C, and started investigation. Inquest report (Ex-A2) was prepared by the Revenue police after taking dead body of the deceased in its possession, and the body was sealed. The Revenue Police further prepared other necessary papers like sketch of the dead body (EX-A11), Police Form No. 13 (Ex-A12), sample seal (Ex-A13) and letter to Chief Medical Superintendent, Tehri Garhwal (Ex-A10) requesting for post mortem examination. PW8 Dr. G.L.Sah conducted post mortem examination on 4 the dead body of Muninder Dutt Pant on

16.12.2003, and prepared autopsy report (Ex-A3). The said medical officer recorded as many as 8 ante mortem injuries, and opined in the autopsy report that deceased had died on account of coma due to head injury. It appears that the investigation was later on taken over by regular police and PW11 Inspector Jagdish Singh Aswal completed the investigation. The said Investigating Officer submitted charge sheet (Ex-A17) against the two accused/appellants namely Bharat Singh and Anil Dev Surari, for their trial in respect of offence punishable under section 302 of I.P.C. (4) The Judicial Magistrate, on receipt of charge sheet, after giving necessary copies to the accused as required under section 207 of Cr.P.C., committed the case to the court of Sessions for trial. Learned Sessions Judge, Tehri Garhwal, on 19.04.2004, after hearing the parties framed charge of offence punishable under section 302 read with section 34 of I.P.C., against both the accused/appellants Bharat Singh and Anil Dev Surari, who pleaded not guilty and claimed to be tried. On this prosecution got examined PW1 Pareshwar Badoni, PW2 Anant 5 Ram, PW3 Manoj Joshi (informant), PW4 Smt. Vijay Laxmi, PW5 Chakra Dhar Prasad Kothari, PW6 Balam Singh Kharola, PW7 Yashwant Singh Rana, PW8 Dr. G.L.Sah, PW9 Dr. Anand Shukla, PW10 Sunder Lal Badoni and PW11 Inspector Jagdish Singh Aswal. The oral and documentary evidence was put to the accused under section 313 of Cr.P.C., in reply to which they pleaded that the evidence adduced against them was false. However, no evidence in defence was adduced. After hearing the parties, the trial court found that the prosecution has successfully proved charge of offence punishable under section 302 read with section 34 of I.P.C. After hearing on sentence, each one of the convicts was sentenced to imprisonment for life and directed to pay fine of ` 10,000/-.In default of payment of fine the defaulter convict was directed to undergo further six months imprisonment. Aggrieved by said judgment and order dated

09.03.2006, passed by Learned Sessions Judge Tehri Garhwal in Sessions Trial No. 13 of 2004, this appeal has been filed by the convicts. (5) Before further discussion, this Court thinks it just and proper to mention the ante mortem injuries 6 found on the dead body of the deceased (Muninder Dutt Pant) by PW8 Dr. G.L.Sah at the time of post mortem examination on 16.12.2003. The ante mortem injuries are being reproduced from autopsy report (Ex-A3) prepared by said Medical Officer as under :- “ (i) 4 cm x 4 cm abraded contusion on the base of nose, nasal bone fractured and there is bleeding from both nostrils and mouth. Blood clots are present on both nostrils. (ii) 4 cm x 2cm abraded contusion placed parallelly just above the left eyebrow. (iii) 2 cm x 0.5 cm abrasion placed longitudinally over the right side of forehead just above the medial and of right eyebrow. (iv) Gross contusion (blueish swelling around the both eyes upper and lower eyelids are swellen on both sides. (v) 6 cm x 5 cm contusion on left parieto temporal area. 7 (vi) 8 cm x7.5 cm swelling (abraded contusion) on right front temporal area. It is also extending upwards to parietal area. (vii) 5cm x6 cm swelling on occipital area. It is an abraded contusion. (viii) 6 cm x5 cm contusion on posterolateral aspect of left elbow.” The above ante mortem injuries mentioned in the autopsy report Ex-A3, and the statement of PW8 Dr. G.L.Sah, establishes on the record that Muninder Dutt Pant had died homicidal death on

15.12.2003. This Court has to examine whether the accused/appellants have committed the culpable homicide or not, if yes whether it constitutes commission of “ murder ”or not. (6) PW1 Pareshwar Badoni has stated that

15.12.2003 between 7.30 P.M. and 7.45 P.M., he was coming back towards Ghansali, after attending some meeting in New Tehri. The witness further told that when he reached near market (Ghansali) he was told by some people that there had been some quarrel with Babu Pant (Muninder Dutt Pant) of 8 P.W.D.. The witness further narrates that after receiving the information he alongwith Anant Ram Semwal (PW2) went towards the office of Public Works Department. The witness has further stated that there was an electric light. PW1 Pareshwar Badoni further told while coming back from the side of the office Chaukidar Manoj Joshi (PW3) came and told that accused/appellants Anil Dev Surira and Bharat Singh committed MAARPEET with him and also beaten Babu Pant (Muninder Pant). The witness further told that he went to the place of incident and he saw Muninder Pant lying unconscious on the ground. According to this witness he alongwith the help of Chaukidar (Manoj Joshi) took the injured (Muninder Pant) to Health Center Pilkhi, where the doctor declared him brought dead. This witness has lastly stated in his examination in Chief that accused/appellants Anil Dev Surari and Bharat Singh were also seen by him in the Primary Health Center who had gone there to them medically examined. This witness was subjected to lengthy cross examination in which admitted that he did not see the accused/appellants committed MAARPEET with the deceased. The witness further told that he is distant relative of the 9 deceased. (7) PW2 Anant Ram has not supported the prosecution case and told that he did not see the incident. This witness was got declared hostile by the prosecution . (8) PW3 Manoj Joshi is informant of the incident. This witness (PW3) has partially supported the prosecution case. He stated that he was Chaukidar with the Public Works Department, Ghansali. He further told that he took injured Muninder Dutt Pant to hospital alongwith other members of staff. However, he denied having seen incident with his own eyes. This witness further denied that he had given statement under section 164 of Cr.P.C., before the Judicial Magistrate, New Tehri, supporting the prosecution case, as such, the witness was got declared hostile. In the cross examination he has stated that Patwari forced him to lodge First Information Report. (9) PW4 Smt. Vijay Laxmi is widow of the deceased, who is not the witness of the incident, but she has stated that her husband received a threat call from accused/appellants Bharat Singh and Anil 10 Dev Surari, a day before the incident. (10) PW5 Chakra Dhar Prasad Kothari has stated that on 15.12.2003, a cook of the Executive Engineer gave a telephonic call at 8.15 p.m. and asked him to reach in the office. The witness further told that Senior Clerk Muninder Pant had suffered injuries in MAARPEET, and he was already taken to Primary Health Center, Pilkhi. PW5 Chakra Dhar Prasad Kothari further told that when he reached near the gate of hospital by then crowd collected there did allow to see the deceased and he had to came back. The witness further told that on instructions of the Executive Engineer he went to Patwari of the area, and scribed the First Information Report (Ex-A1) as dictated by Manoj Joshi. In cross examination the witness states that the First Information Report was scribed by him at

11.00 p.m. and given to the Patwari. (11) PW6 Balam Singh Kharola is the head clerk of Public Works Department, Ghansali, who has stated that on coming to know on 16.12.2003, about the death of Muninder Pant, he went towards hospital but he too was not allowed to the enter inside the hospital. 11 (12) PW7 Yashwant Singh Rana, a pharmacist has stated that Muninder Pant (deceased) was brought dead in the hospital in the month of December 2003. (13) PW9 Dr. Anand Shukla has stated that on

17.12.2003, he was posted in Joint Director (Health) Borari, New Tehri, where the Patwari brought accused/appellants Bharat Singh, who were medically examined by him, and injury reports Ex- A4 and Ex-A5 were prepared after examination of the injuries found persons of the accused/appellants. (14) Learned counsel for the appellants argued that the sole eye witness PW3 Manoj Joshi has not supported the prosecution case, and as such the trial court has erred in law in holding that the charge of the accused/appellants stood proved on the record. We have scrutinized the testimony by PW3 Manoj Joshi, and also that all the other witnesses. On close scrutiny, we find that PW3 Manoj Joshi appears to have been won over by the accused/appellants, and merely for that reason the other evidence on record, cannot be disbelieved. There is ample oral and 12 documentary evidence on record read with the injury reports Ex-A4 and Ex-A5 of the accused which establishes that there had been MAARPEET between the accused/appellants of the deceased on the day of the incident. (15) Learned counsel for the appellants drew attention of this Court to the post mortem examination report (Ex-A3), and pointed out that the stomach of the deceased was found containing alcoholic smell. On its basis it is argued that accused might have fallen in a drunken state, and could have suffered the injuries. However, considering the nature of eight ante mortem injuries including injury no.4 gross contusion (blueish swelling around the both eyes) and the swelling not only on the occipital area of the head, but also on the front temporal and parietal temporal area, this Court is of the view that unless the deceased was beaten all these injuries could not have been caused together by the mere fall on the ground. (16) Attention of this Court is also drawn to the statement of PW5 Chakra Dhar Prasad Kothari (scribe of the First Information Report) who has 13 disclosed that the report was scribed at 11.00 p.m on 15.12.2003. On its basis it is argued that the First Information Report is ante time as check report Ex- A6 shows that it has been lodged at 10.00 p.m. We have carefully gone through the statements of all the witnesses and found that the staff of the Public Works Department had gone to the office of Patwari between 10-11 p.m., where the report was dictated by Manoj Joshi (PW3) to PW5 Chakra Dhar Prasad Kothari. Assuming for a moment that the written report was prepared at 11.00 p.m. that by itself does not create reasonable doubt in the prosecution story that the accused/appellants had beaten the deceased at 8.00 p.m on said date. (17) However, on going through the evidence on record we are of the view that there appears no intention on the part of accused/appellants to commit MAARPEET of the deceased as admittedly they were not armed with any deadly weapon. Injury on the person of the accused/appellants on the person of the deceased indicates that there had been some quarrel and scuffle between them, and they used kick and fists against each other and in the process deceased appears to have been grounded 14 and beaten in such a way that he suffered the eight ante mortem injuries mentioned in the autopsy report. The case appears to be covered under Exception 4 of section 300 of I.P.C. As such act on the part of the accused/appellants constitutes culpable homicide not amounting to murder, and it appears to have been done with the knowledge it is likely to cause death but without intention to cause the same. That being so, the offence committed by accused/appellants Bharat Singh and Anil Dev Surari is punishable under para 2 of section 304 of I.P.C. (18) Accordingly, the appeal is partly allowed. The conviction and sentence recorded against the accused/appellants Bharat Singh and Anil Dev Surari, by the trial court under section 302 read with section 34 of I.P.C., is hereby set aside, and instead of that the accused/appellants are convicted under section 304 para 2 of I.P.C. Considering the facts and circumstances of the case each one the accused/appellants Bharat Singh and Anil Dev Surari is sentenced to rigorous imprisonment for a period of four years and directed to pay fine of ` 10,000/-. In default of payment of fine the defaulter 15 convict shall undergo further imprisonment for a period of six months. The amount if any paid in pursuance of the order of the trial court shall be adjusted, and payment if any made to the widow of the victim out of said sum shall not be recovered. The accused/appellants are on bail. Their bail is cancelled. They shall surrender before the court concerned to undergo the remaining part of the sentence as awarded by this Court. Lower court record be sent back. (U.C.Dhyani, J.) (Prafulla C. Pant, J.)

01.11.2012 Nahid