Atra and others vs State of Uttaranchal

U.C. Dhyani, J.—Appellants Devraj, Kiran, Atra and Dhanprakash faced the trial with the allegation that they inflicted blows of knife on Ratia and Dhanpal causing them injuries. There were two sets of accused namely, Devraj and Kiran on the one hand and Atra and Dhanprakash on the other. Charges against Devraj and Kiran were framed for the offences punishable under Sections 302, 307, 504 IPC & charges against Atra and Dhan Prakash were framed for the offences punishable u/s 302/34, 307/34, 504 IPC. All the accused were found guilty by learned trial court in relation to offences punishable under Sections 302/34 IPC and 324/34 IPC. Each of them was awarded imprisonment for life, a fine of Rs. 1500/- , in default of payment of which they were directed to undergo three months'' simple imprisonment (under Section 302/34 IPC) and three months'' rigorous imprisonment (under Section 324/34 IPC). All the sentences were directed to run concurrently. The said judgment was delivered on 11.09.2002. Aggrieved against the aforesaid judgment and order, accused persons preferred this appeal. Complaint Ext. Ka-1 was lodged by injured Jagpal on 28.01.1994. The incident occurred on the same day at 9:15 pm. Chik FIR Ext. Ka-2 was lodged at PS Jwalapur on 28.01.1994 at 10:40 pm. The distance between place of occurrence and PS concerned was two kilometers, hence there appeared to be no delay in lodging the FIR.

Prosecution story as projected through PW 1 Jagpal was that appellants wanted to grab a vacant piece of land of gram panchayat. On 28.01.1994 Km. Balesh, a cousin of PW 1 Jagpal, went to dump garbage over the same at 4:00 pm. While she was coming back to her home, appellants Devraj and Atra hurled abuses at her. Km. Balesh told the same to her brother Sompal at 9:15 pm. Sompal went to appellant Atra and enquired from him as to why did he misbehave with his sister Balesh? Then appellants Prakash and Atra hurled abuses on Sompal, caught hold of him and appellants Devraj and Kiran inflicted blows of knife. Thus, the role assigned to appellants Kiran and Devraj was assaulting with knife and role assigned to appellants Prakash and Atra was catching hold. On raising alarm by Sompal, Ratia and Brahmpal reached there. Dhanprakash alias Prakash and Atra caught hold of them. Devraj along with Kiran inflicted blows of knife on them also. PW 1 Jagpal as well as Mulki along with Dharampal and Rajpal were present on the spot.

Narrating the story further, PW 1 Jagpal said that Brahmpal, Ratia and Sompal were taken by him and Mulki to hospital on vikram (tempo). Injured Sompal was declared ''brought dead'' in hospital. Ratia and Brahmpal were serious and they were admitted to hospital. PW 1 Jagpal lodged report in PS Jwalapur. The complaint was scribbled by one Sher Singh. PW 1 Jagpal proved his complaint Ext. Ka-1. Ratia alias Rati Ram was referred to Meerut Medical College, where he died on 24.02.1994.

PW 1 Jagpal was cross-examined by two sets of accused persons separately. In cross-examination, PW 1 Jagpal said that there was a lamppost near place of occurrence. When he had gone to respond to nature''s call then appellants Devraj and Atra hurled abuses at Km. Balesh. When Km. Balesh told Sompal about the same, this witness was present there. His house was very near to the house of Sompal. Sompal went to Atra, no sooner Km. Balesh narrated story of misbehaviour with her to Sompal. Sompal enquired about the same from Atra. He himself and Mulki were present there. Jagpal and Mulki did not intercept when the abuses were being hurled by Atra. The residences of Kiran and Dhanprakash alias Prakash were at a distance of 18 paces. This witness denied that there was no enough light on the place of occurrence. Devraj and Kiran inflicted blows of knife on Sompal. When the same was being done he himself, Mulki, Dharampal and Rajpal were present there. None of the witnesses intervened accused/appellants. Ratia and Brahmpal came after two minutes. All the appellants remained present on the spot. Ratia, Brahmpal and Sompal fell unconscious on sustaining injuries. A vikram (tempo) was coming from Pathari. Passengers were alighted from vikram and the injured/victim were taken to hospital. Nobody in their village was having car during those days. He denied that Sompal and Ratia were under the influence of liquor at that time.

On being questioned as to why he did not write complaint, he replied that he was trembling and therefore, he did not write complaint. Since scribe Sher Singh belonged to his village, therefore, the complaint was got written by him. Scribe Sher Singh went to PS Jwalapur on scooter, where upon the FIR was lodged at 10:40 pm. In between they went to hospital where they stayed for five minutes. Appellants Dhanprakash and Kiran are sons of Atra''s brother. He denied that he was related to Sompal.

In this way, nothing has so far come in the cross-examination of PW 1 Jagpal, which may cast suspicion on the testimony of this eyewitness.

On being cross-examined on behalf of another set of appellants Atra and Devraj, PW 1 Jagpal said that Ratia''s house was situated at a distance of 20 to 25 paces from his house. Rajpal was his brother but they lived separately. He had gone to respond to nature''s call at 3:40 pm on the date of occurrence. Balesh threw garbage in his presence. At that time, he did not go to house of Balesh, instead he returned to his house. Sompal called Atra and enquired from him (as to why he hurled abuses at Balesh ?) Atra also started abusing Sompal. Sompal did not exchange abuses. Mulki, Dharampal, Rajpal and this witness were present there. It was a moonlit night. Since now a days nobody wants to pick up quarrel with anybody, therefore, he did not try to intervene in the incident.

On being questioned, PW 1 Jagpal also said in cross-examination that first of all Devraj inflicted blow of knife on Sompal from the front. Kiran gave a blow of knife thereafter. He was not able to tell as to how many blows of knife were inflicted by them (This was not possible also to count the blows). Atra and Dhanprakash dragged Sompal towards their house. None of the accused fled away from the scene. On raising alarm by Sompal and PW 1 Jagpal, Brahmpal and Ratia appeared on the scene. Ratia and Brahmpal went to Sompal who was lying on earth. Ratia and Brahmpal did not lift Sompal because appellants Devraj and Kiran inflicted injuries on Ratia and Brahmpal as well. Ratia was given blow of knife from the front. Ratia was bleeding profusely. Devraj and Kiran were provided knives by Devraj''s mother Raghubiri. Other villagers reached on the place of occurrence subsequently. All the injured/victims were taken to hospital in vikram (tempo). He denied that he was not present on the spot.

In this way, nothing has come in the testimony of this important eyewitness even after lengthy cross-examination by two sets of appellants. Testimony of PW 1 Jagpal inspires confidence. It has withstood the test of scrutiny.

PW 2 Brahmpal was the injured as well as the eyewitness. Km. Balesh was his sister. He said that when his sister Balesh was returning after throwing garbage at panchayat land, appellants Atra, Dhanprakash, Devraj and Kiran were standing there and were also present in the court when this witness deposed. Corroborating the evidence tendered by PW 1 Jagpal, PW 2 Brahmpal said that when his brother Sompal returned at 7:00 pm, his sister complained to him regarding misbehaviour with her by appellants. Around 9:15 pm, Sompal enquired from the appellants about the incident which occurred during day time. All the four appellants came. Devraj and Kiran inflicted blows of knife on Sompal. Appellants Dhanprakash and Atra caught hold of him. Sompal died on the spot. Kiran gave blows of knife on PW 2 Brahmpal also. PW 2 Brahmpal''s father Ratia also reached there. Appellants Devraj and Kiran gave blows of knife on chest and head of Ratia. Ratia was taken to hospital whereupon he died after 20-25 days. Witnesses Jagpal, Dharampal, Rajpal and Mulki came on the spot. Thus, three persons received injuries, out of whom two persons died, one on the spot and second subsequently after about a month.

In his cross-examination, PW 2 Brahmpal said that he did not remember the khasra number of land of gram-samaj. The house of Atar Singh alias Atra was situated at the back of his house. He also replied about the surroundings of the house of appellant Atar Singh alias Atra. He also replied the questions regarding the vicinity of gram-samaj land where garbage was dumped. He denied that a quarrel was picked up regarding grabbing of house of accused persons. This witness fell unconscious when he sustained injuries. Sompal died on spot. There was blood in the tempo. They reached hospital at around 10:00 pm. His brother was declared ''brought dead'' by Doctor. Jagpal, Mulki, Rajpal and Dharampal were present there. Many a persons reached hospital. Ratia also fell unconscious. Ratia was taken to Meerut, who died after a month.

On being cross-examined, this witness further stated that Sompal came from the field at around 7:00 PM. Balesh told Sompal regarding incident of abuse (when Sompal returned from field). This witness was not present then. Sompal went to Atra. All the appellants were present inside the house of Atra when Sompal went to Atra''s house to enquire about the incident of abusing. He denied that Ratia and Sompal were already beaten by the time PW 2 Brahmpal reached there. The mar peet took place with Sompal first, followed by Ratia. Dhanprakash gave a blow of knife to PW 2 Brahampal. Devraj and Kiran were inflicting blows of knife on brother of this witness. He did not count the number of blows. Sompal became unconscious and fell down. Sompal was bleeding profusely. Appellants were seen in the bulb light. (It is not a case of disputed identity in as much as the appellants and the injured resided in the same locality, same village). The injured/victim were taken to hospital in tempo. He admitted that a case was pending between the parties, but a compromise was entered into between the parties some two years before this incident. Questions were also asked to this witness regarding bag bahar. This witness denied the suggestion that some unknown persons had killed Sompal and appellants were falsely implicated on account enmity. In this way nothing has come in the cross-examination of this witness also which may raise suspicion on the eye witness account given by this witness.

PW 3 Mulki was also an eyewitness to the incident. He corroborated the story put forward by earlier prosecution witnesses. Reproducing his testimony as told by him in his examination-in-chief would amount to repetition of what PW 1 Jagpal and PW 2 Brahmpal said before the trial court. But yes, it will be worthwhile to look into what he said in his cross-examination.

In his cross-examination, he said that appellants hurled abuses on sister of Sompal and Brahmpal. Injured persons along with victim were taken to hospital. Gram Pradhan Maqsood also reached hospital. Many (immaterial) inconsistencies in the statements u/s 161 Cr.P.C were raised in the cross-examination of this witness, but to no avail. This witness emphatically denied that there was no light at the place of occurrence. He saw beating of Sompal at the residence of Atra. He saw body of Brahmpal and Ratia at khadanja. When Sompal raised an alarm Ratia, Brahmpal and Jagpal came there. Appellants dragged Brahmpal and Ratia inside their house. This witness tried to liberate injured persons from the clutches of assailants but since there were knives in the hands of (two of the) assailants, therefore, this witness was forced to back out. He assisted Investigation Officer in preparing the site plan. Many other questions were asked in the cross-examination of this witnesses but since they had no bearing on the merits of the case therefore they are not being mentioned here. Lastly, he denied the suggestion on behalf of the appellants that the occurrence took place in the dark and injured/victim were given blows by some unknown persons.

Thus the prosecution story as projected by PW1 Jagpal was corroborated by PW 2 Brahmpal and PW 3 Mulki. PW 2 Brahmpal was also an injured and therefore his presence on the date and time of occurrence cannot be doubted. Prosecution story is projected by one witness and is corroborated by two other witnesses, one of them was injured. All of them were put to a lengthy cross-examination by Learned Counsel for the appellants, but to no avail. They have withstood the test of cross-examination on all material points. Nothing could shake the tone and tenor of these witnesses. When the veracity of these prosecution witnesses was tested, they emerged with flying colours. The evidence of PW 4 Doctor R.K. Pandey, PW 5 Doctor O.P.Sharma, PW 6 Doctor H.K. Gulati and PW 7 Doctor B.B. Bhatnagar suggests that ocular version put forwarded by eyewitnesses was corroborated by medical evidence.

PW 4 Doctor R.K. Pandey found following ante-mortem injuries on the dead body of victim Sompal:

(1) Incised wound 2 cm x 1 cm into chest cavity deep just below and left to nipple at 5''0 clock position oblique in direction tailing downwards. On exploration, the wound is chest cavity deep, left side lung is cut and the wound is communicating to pericardial cavity and left atrium of heart. Pericardial cavity contains 400 cc blood.

(2) Incised wound 2 cm x 1 cm into abdomen cavity deep on left side abdomen, 12 cm from umbilicus at 2 0'' clock position oblique in direction tailing downwards.

(3) Incised wound 1 cm x 0.5 cm into muscle deep on left internal region.

(4) Incised wound 2 cm x 1 cm into chest cavity deep on left side chest, 11 cm from nipple at 4 0'' clock position.

(5) Incised wound 2 cm x 1 cm into muscle deep on outer aspect of left arm in its middle, tailing towards right, transverse direction.

(6) Incised wound 1.5 cm x 1 cm into muscle deep on inner side of left arm, transverse in direction, tailing to right.

(7) Incised wound 4 cm x 2 cm on back of left elbow, tailing downwards.

(8) Incised wound 2.5 cm x 1 cm into muscle deep on left buttock, transverse in direction tailing to right.

PW 4 Doctor R.K. Pandey proved his report Ext. Ka-2. The cause of death, as shown in the post mortem report was shock and haemorrhage due to ante-mortem injuries. All the injuries were possible on 28.01.1994 at 9:15 pm and accordingly, the death was possible on the aforesaid date and time.

PW 5 Doctor O.P. Sharma examined Rati Ram alias Ratia son of Kallu on 28.01.1994 at 9:45 pm in District Hospital, Haridwar. He found incised wound 2 cm x 0.5 cm muscle deep on left eye which was bleeding profusely. He also found incised wound 1 cm x 0.8 cm x chest deep on the lower side of left chest. The injury was kept under observation and injured Ratiram was advised X-ray. PW 5 Doctor O.P. Sharma proved his injury report Ext. Ka-3. Both the injuries were sustained by sharp edged weapon. The duration was fresh. The injury was possible on 28.01.1994 at 9:15 pm with knife.

PW 5 Doctor O.P. Sharma also examined injured Brahmpal son of Ratiram alias Ratia on the same day i.e. 28.01.1994 and found incised would 2 cm x 0.5 cm into muscle deep on right thigh. The wound was bleeding. There was also an incised wound 1.5 cm x 0.5 cm into muscle deep on upper part of right buttock. The wound was bleeding. Duration of these injuries was fresh. These injures were possible on 28.01.1994 at 9:15 pm and could be sustained by a sharp edged weapon like knife. Doctor proved injury report of injured Brahmpal (aged about 18 years) as Ext. ka-4.

PW 6 Doctor M.K. Gulati was posted on 25.02.1994 at District Hospital, Meerut. On that day at 3:30 pm he conducted post mortem on the dead body of Ratia who died on 24.02.1994 at 1:35 am. He found the following ante-mortem injuries on the dead body:

(1) Stitched infected wound 25 cm long with 18 stitches on front and outer side of left side of abdomen and chest placed obliquely.

(2) Infected stitched wound 1 cm x 1 cm on outer side of left side abdomen 10 cms outer to umbilicus at 2.30 0'' clock position.

(3) Draining tube present on left side chest 13.0 cm below axilla.

(4) Foley''s catheter present in urethra.

The Doctor proved his report Ext. Ka-5. According to him the cause of death of Ratia son of Kallu was shock as a result of septicemia. There was infection in the wounds which resulted into septicemia.

PW 7 Doctor V.D. Bhatnagar, Head of the department of surgery in the Medical College, Meerut was posted as Professor of surgery department in Medical College, Meerut in the year 1994. He stated that Ratia son of Kallu was referred to Medical College, Meerut by District Hospital, Haridwar. The injured was serious. There were wounds on his head and abdomen. Ratia was operated upon by Doctor Bhatnagar. Upon operation it was found that the diaphragm and stomach were seriously injured. Stomach was dislocated. Faecal matter had entered into the plular cavity. Stomach and diaphragm were repaired by the Surgeon. The wound could not be healed. He was operated upon again on 14.02.1994. There was deficiency of septicemia and protinus. Septicemia persisted. No drug was responding to his body. Consequently, he died on 24.02.1994 at 1:35 am. Doctor Bhatnagar proved his reports Ext. Ka-6 & Ka-7.

PW 8 ASI Brijendra Singh proved chik FIR (Ext. Ka-8) and G.D. (Ext. Ka-9). PW 9 SHO M.R. Dugtal was posted on 28.01.1994 at PS Jwalapur. He took over investigation of the case. He proved site plan (Ext. Ka10), took the statements of the witnesses, prepared inquest report (Ext. Ka-11) and other papers (from Ext Ka-12 to Ext. Ka-17). He submitted charge-sheet (Ext. ka-18) after completing the investigation of the case.

A detailed discussion of testimony of formal witnesses was given by the learned trial court in impugned judgment, hence there appears to be no need to go into the details of these formal witnesses. They have perfectly filled in the blanks in the prosecution story.

Having gone through the evidence available on record and after going through the discussion made by learned trial court in its judgment dated 11.09.2002, we do not find any reason to interfere in the judgment of learned court below.

But, there is yet another aspect of the matter. Two witnesses were examined on behalf of the appellants in order to create suspicion in the prosecution story. Hence it will not be advisable to jump into the conclusion without discussing the ramifications/fall out of defence version.

DW 1 Phool Singh was produced in order to show that in a dark night Ratia, Sompal and Brahmpal were beaten by some unknown persons and when people assembled there, they saw that injured/victims Ratia, Sompal and Brahmpal were already grounded on earth. Information was given by gram pradhan Maqsood Ali, who was not examined. People told policemen that a girl was also present there who cried and then Police took the injured to hospital.

DW 2 Mohd. Yasin repeated the same saying that some unknown persons were carrying sharp edged weapons. He saw Ratia, Sompal and Brahmpal in injured condition. Village Pradhan also came there. Km. Balesh was present on the spot. She did not sustain any injury. Injured persons were taken by Police to hospital.

Above two witnesses were presented on behalf of defence in order to divert the attention of the court that appellants were not the real culprits. They came for the purpose of saying that the accused/appellants did not do it. The evidence tendered by these two witnesses is not inspiring. What were they doing there in the dark (if it was so?) They did not say as to why the appellants were made accused unnecessarily? The quarrel or dispute was not substantiated by them. They only said about the aftermath of incident. When it was pitched dark night, as per the version of these defence witnesses, how could these witnesses see whatever was claimed to be seen by them. The testimony of these defence witnesses do not help appellants in any way.

Thus, there is no reason to upset the judgment and order passed by learned trial court. The same should accordingly be affirmed. Appeal is liable to be dismissed.

The appeal of the appellants Atra, Devraj, Kiran and Dhanprakash is dismissed. The judgment and order passed by the leaned Additional Sessions Judge/1st FTC, Haridwar on 11.09.2002 is accordingly affirmed. The conviction and sentence awarded by learned trial court is also affirmed. Accused-appellants Devraj and Kiran are on bail. Their bail is cancelled. They are directed to surrender before the court concerned to serve out the sentence thus awarded by the trial court and affirmed by this Court.

On 14.03.2012 this Court had cancelled the bail granted in favour of appellants 1 & 4 Atra and Dhan Prakash. They were directed to surrender before the learned trial court forthwith. It was also directed that in the event the above named appellants do not surrender forthwith, the trial court shall take such coercive measure, as he may deem fit and proper for obtaining surrender of the above named appellants. Accordingly, it is directed that if appellants 1 & 4 Atra and Dhan Prakash have surrendered before the court and they have been sent to Jail in pursuance of order dated 14.03.2012, they will serve out the sentence. But even if the order dated 14.03.2012 could not be carried out by now, the appellants 1 & 4 Atra and Dhan Prakash are directed to surrender before the court concerned to serve out the sentence awarded by the trial court and affirmed by this Court. Needless to say that their bail is cancelled. Let a copy of this judgment along with lower court record be sent back to the court concerned for ensuring compliance of this order.