Diwan Singh & Ors. v. State of U.P (Now State of Uttarakhand)

Judgment

#1. 2. 3. ……............... Appellants Versus State of U.P (Now State of Uttarakhand) ……….Opposite party Shri Lokendra Dobhal, Advocate, with Shri Pratul Kumar, Advocate, present for the appellants. Shri M.A. Khan, A.G.A, with Smt. Nishat Intezar, Brief Holder, present for the respondent/State. Hon’ble Prafulla C. Pant, J. This appeal, preferred under section 374 of Code of Criminal Procedure, 1973, (for short Cr.P.C), is directed against the judgment and order dated 26.07.2000, passed by Learned 2 Sessions Judge, Tehri Garhwal, in Sessions Trial No. 26 of 1996, whereby said court has convicted the accused/appellant Diwan Singh under section 304 Part-2 of I.P.C., and sentenced him to rigorous imprisonment for a period of five years.

He has been further convicted under section 323/34 of I.P.C, and sentenced to rigorous imprisonment for a period of six months. Other accused/appellants Jaipal Singh and Veer Singh have also been convicted, and sentenced under section 323/34 of I.P.C., and sentenced to rigorous imprisonment for a period of six months. (Apart from this accused Mohan Singh and Shoorvir Singh appear to have also been convicted under section 323/34 of I.P.C, but they are not appellants before this Court). (2) Heard learned counsel for the appellants,

and learned counsel for the State, and perused the lower court record. (3) Prosecution story, in brief, is that on

17.10.1994, at about 8.30 pm., Parwan Singh (deceased) alongwith PW3 Kukru Mistri was sitting in tea stall of Satya Singh (PW1). Accused 3 Diwan Singh, Jaipal Singh and Veer Singh alongwith co-accused Shoorvir Singh and Mohan Singh came there, and offered to sell five bottles of crude liquor at the rate of ` 45 per bottle, but PW1 Satya Singh refused to buy the same. Thereafter, the five accused of made same offer to Parwan Singh, but he also refused to buy the crude (country made) liquor. Parwan Singh left the shop of Satya Singh, and went to his own shop situated in Ratnagod. All the five accused followed him and dragged him (Parwan Singh) from his shop (tea stall). They started quarrelling with Parwan Singh. On hearing noise, PW1 Satya Singh came out from the shop alongwith Kukru Mistri (Pw3) and attempted to intervene, but accused Diwan Singh, who was armed with a MOOSAL (pestle) assaulted Parwan Singh and killed him. The accused/appellants thereafter allegedly voluntarily caused hurt to PW1 Satya Singh. On the next day (18.10.1994) at about

11.00 am., PW4 Sobat Singh (son of the deceased) gave First Information Report (Ex-A1) at Police Station Tehri, on the basis of which crime no. 154 of 1994 was registered relating to offence punishable under section 302 of I.P.C, 4 against accused Diwan Singh, Shoorvir Singh, Mohan Singh, Jaipal Singh and Veer Singh. The crime was investigated by PW9 Dharamveer Singh, who added sections 147, 148 and 307/34 with 302 of I.P.C. Dead body of Parwan Singh was taken into custody by police on 18.10.1994, and inquest report (Ex-A8) was prepared. Police further prepared Police Form No. 13 (Ex-A9), sketch of the dead body (Ex-A10) and other necessary papers and sent dead body for post mortem examination. PW8 Dr. V.C.Pathak conducted post mortem examination on the dead body of Parwan Singh on 19.10.1994, at 11.00 a.m., and recorded three ante mortem injuries in autopsy report (Ex-A6). The said Medical Officer opined that deceased had died of coma, as a result of ante mortem head injury caused by blow of hard blunt object. After interrogating the witnesses, and inspecting the spot, the Investigating Officer submitted charge sheet (Ex- A5) against the accused/appellants Diwan Singh, Shoorvir Singh, Mohan Singh, Jaipal Singh and Veer Singh, for their trial in respect of offences punishable under section 147, 148, 307, 325, 302 read with section 34 of I.P.C. 5 (4) Chief Judicial Magistrate, Tehri Garhwal, 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 on 24.04.1997. Learned Sessions Judge, Tehri Garhwal, after hearing the parties framed charge of offences punishable under section 302 read with section 34, and under section 307 read with section 34 of I.P.C., against all the five accused namely Diwan Singh, Shoorvir Singh, Mohan Singh, Jaipal Singh and Veer Singh who pleaded not guilty and claimed to be tried. On this prosecution got examined PW1 Satye Singh (injured eye witness), PW2 Narain Singh (who reached immediately after the incident), PW3 Kukru Mistri (an eye witness), PW4 Sobat Singh (informant), PW5 Betal Singh (in whose presence blood stained soil and sample soil was taken from the spot), PW6 Constable Bhagwan Singh (who made entry in the General Dairy relating to F.I.R), PW7 Laxmi Shankar Shukla (who concluded investigation), PW8 Dr. V.C.Pathak (who conducted post mortem examination) and PW9 Sub Inspector Dharamvir 6 Singh (who started investigation). Oral and documentary evidence was put to the accused under section 313 of Cr.P.C., in reply to which they alleged 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 offences punishable under section 304 Part-2 of I.P.C., against accused Diwan Singh and convicted him accordingly. The trial court further found that all the accused namely Diwan Singh, Shoorvir Singh, Mohan Singh, Jaipal Singh and Veer Singh are guilty of charge of offence punishable under section 323/34 of I.P.C., and convicted them accordingly. After hearing on sentence each one of the convicts was sentenced to rigorous imprisonment for a period of six months under section 323/34 of I.P.C., and accused Diwan Singh was further sentenced to rigorous imprisonment for a period of five years under section 304 Part-2 of I.P.C. Aggrieved by said judgment and order dated

26.07.2000, passed by Learned Sessions Judge, Tehri Garhwal, in Sessions Trial No. 26 of 1996, this appeal was filed by three convicts namely 7 Diwan Singh, Jaipal Singh and Veer Singh before Allahabad High Court from where it is received by transfer under section 35 of U.P. Reorganization Act 2000 (central Act 29 of 2000), for its disposal. (5) Before further discussion, this Court thinks it just and proper to mention the ante mortem injuries found by PW8 Dr. V.C. Pathak at the time of autopsy conducted on the dead body of Parwan Singh Rawat on 19.10.1994. The ante mortem injury recorded in autopsy report (Ex- A6) have been reproduced below:- (1) Contusion on right side of chest

3.5 x 1 cm, reddish in colour, 10 cm below the right nipple. (2) Contusion on left side of lower 6 cms above the post superior iliac spine 14 x 1.5 cm, reddish blue in colour, oblique. (3) Laceration on the occipital region of scalp 1.05 cm x bone deep, on dissection of scalp there is 8 haematoma beneath the wound in an area of 10 x 10 cms. On removing the scalp, there is fracture of occipital and adjoining right parietal bone in an area of 12.05 cm. On removing skull, there is sub dural haematoma on outer surface of both cerebral hemispheres. Cause of death according to PW8 Dr. V.C. Pathak was coma due to ante mortem head injury no.3 caused by blow of hard blunt object. From the medical evidence on record it is established that Parwan Singh died homicidal death. Now this Court has to see whether the injury which resulted in death of the deceased was caused by accused/appellant Diwan Singh as found by the trial court, or not. (6) PW1 Satya Singh is the injured eyewitness of the incident. He has stated that on 17.10.1994, at about 8.30 pm., he was sitting in his shop in Ratangad. He further told that Parwan Singh (deceased) was also sitting there. He further told that five accused namely Diwan Singh, Veera, 9 Mohan Singh, Shoorvir Singh and Jaipal Singh came there and left his shop (tea stall). Parwan Singh (deceased) also left the shop. According to this witness after sometime he heard noise and came out of his (Parwan Singh's) shop and saw that the above mentioned five accused were quarreling with Parwan Singh. The witness PW1 further told that he rushed and asked the accused to desist from assaulting Parwan Singh. PW1 Satya Singh further told that accused not only killed Parwan Singh but also assaulted him, and he suffered injuries. He has stated in his cross examination that it was only Diwan Singh, who assaulted the deceased. He further told that it was only Diwan Singh, who assaulted him also. The testimony of this injured witness is trustworthy as his presence at the spot in natural and gets corroborated from the medical evidence (Ex-A7) on the record. Said document (Ex-A7) disclosed that Satya Singh (PW1) had suffered three contusions and one multiple abrasion as recorded by the Medical Officer on 18.10.1994, at 11.00 am. (7) The statement of PW1 Satya Singh further 10 gets corroborated from the statement of PW3 Kukru Mistri regarding role of accused/appellant Diwan Singh in commission of crime. PW2 Narain Singh appears to have reached at the spot soon after the incident and he has narrated that he reached at the spot on the call of Satya Singh (PW1). (8) Having re-assessed the entire evidence on record, this Court finds that as far as the role of accused/appellant Diwan Singh is concerned that he assaulted the deceased and PW1 Satya Singh is proved on the record beyond reasonable doubt. It is also proved on the record that Parwan Singh died of head injury suffered by him in the incident. As such, considering the facts and circumstances of the case, and the sudden quarrel between Parwan Singh and Diwan Singh, the trial court has rightly held accused/appellant Diwan Singh guilty of charge of offence punishable under section 304 Part-2 and under section 323 of I.P.C. The sentence recorded by the trial court against the accused/appellant Diwan Singh is also just and reasonable. As such, the appeal of accused Diwan Singh is liable to be dismissed. 11 (9) However, this Court is in agreement with argument of Learned Counsel for the appellants that since PW1 Satya Singh in his cross examination admits that it was only Diwan Singh, who assaulted him and the deceased and since the incident is of sudden quarrel at the spot, it cannot be said accused/appellant Jaipal Singh and Veer Singh had common intention with Parwan Singh in the commission of culpable homicide (not amounting to murder of Diwan Singh) and voluntary causing hurt to PW1 Satya Singh. As such, the role of accused/appellants Jaipal Singh and Veer Singh in voluntarily causing hurt to Satya Singh cannot be said to have been proved beyond reasonable doubt. As such, they are entitled to be acquitted from the charge of offence punishable under section 323/34 of I.P.C. (10) For the reasons as discussed above, the appeal of accused/appellant Diwan Singh is hereby dismissed. His conviction and sentence recorded by the Learned Sessions Judge Tehri Garhwal in Sessions Trial No. 26 of 1996 under 12 section 304/34 and 323 of I.P.C., is hereby affirmed. The accused/appellant Diwan Singh is on bail. His bail is cancelled. He shall surrender before the court concerned to serve out the remaining part of the sentence. However, the appeal of accused/appellant no.2 Jaipal Singh and accused/appellant no.3 Veer Singh is hereby allowed. They are acquitted from the charge of offence punishable under section 323/34 of I.P.C. Lower court record be sent back. Dt.05.12.2012 N.P (Prafulla C. Pant, J.)