Chander And Others vs State Of U.P.
2022 Latest Caselaw 3535 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 2.3.2022
 
Delivered on 20.5.2022
 
AFR
 
Court No. - 46
 
Case :- CRIMINAL APPEAL No. - 2368 of 1989
 
Appellant :- Chander And Others
 
Respondent :- State of U.P.
 
Counsel for Appellant :- P.C. Srivastava,Manoj Kumar Mishra,Santosh Kumar Upadhyay,Vinod Kumar Upadhyay
 
Counsel for Respondent :- D.G.A.
 

 
Hon'ble Mrs. Sunita Agarwal,J.

Hon'ble Vikas Kunvar Srivastav,J.

(Delivered by Justice Sunita Agarwal)

1. Heard Sri Vinod Kumar Upadhyay learned Advocate for the appellant no.2 Dharm Pal and appellant no. 6 Jagpal. Sri Patanjali Mishra learned AGA has argued on behalf of the State respondent.

2. This appeal is directed against the judgment and order dated 14.12.1989 passed by the IVth Additional District & Sessions Judge, Saharanpur in Sessions Trial No. 597 of 1987 (State vs. Chandra), under Section 147, 148, 302/149 and 323/149 IPC, Police Station Laksar, District Saharanpur, whereby eight appellants namely Chander, Dharm Pal, Mohar Singh, Ram Pal, Sewa, Jagpal, Palla and Om Pal were convicted of the offences under Sections 147, 302/149 and 323/149 IPC and have been sentenced for life imprisonment for the offence under Section 302/149; for one year rigorous imprisonment each for the offence under Section 147 and for one year rigorous imprisonment each for the offence under Section 323/149 IPC. The trial court has not imposed fine on any of the accused-appellant. All the sentences are to run concurrently.

3. At the outset, it is pertinent to note that the present appeal has been filed by eight accused persons, out of whom only two survive and they are appellant no. 2 Dharm Pal and appellant no. 6 Jagpal. This appeal filed on behalf of other six appellants has been abated.

4. The first information report of the incident was lodged by Omi son of Chohal Harijan, brother of the deceased. In the incident occurred on 23.6.1987 at about 9:10 PM, six persons were injured, out of whom, one Soma, brother of the first informant, had died. The first information report was lodged on 23.6.1987 itself at about 10:35 PM.

5. As per the written report lodged by the first informant/PW-4, there was a dispute over encroachment of 'Nali' of the 'Village Well' made by accused appellant no. 1 Chander son of Paltu Harijan. The allegation in the written report is that Chander son of Paltu had constructed the door of his house covering the drain of the Well, he was confronted by the villagers and though he assured that he would not make the construction but did not accede to the request actually. On 23.6.1987 at about 9:00 PM, eight accused persons named in the FIR (appellants in this appeal) went to the house of the first informant and started beating his brother Soma son of Chohal and one Jhandu son of Chhittar, other four injured persons intervened and tried to save them who were also beaten by the accused by Lathi.

It is stated in the written report that the complainant side also wielded Lathi in their defence and on hearing their cries, other villagers named in the written report came on the spot who saved them. Six injured persons on the complainant side were taken to the Laksar hospital because of the grievous injuries sustained by them, but amongst whom Soma, the brother of the first informant, had died on the way to the hospital.

The inquest of the dead body was conducted on 24.6.1987 at about 9:00 AM.

6. On the lodging of the first information report, Check FIR was prepared which was proved by PW-7, the police officer posted in the police station concerned. PW-7 proved that the Check report and GD entry were prepared in his presence in the police station concerned by Head Moharrir Balveer Singh whose writing and signatures were identified by him. The carbon copy of the GD filed on the record was tallied with the original GD brought in the Court. The Check FIR and the carbon copy of GD were proved as Exhibit Ka-8 and Exhibit Ka-9.

PW-7 further stated that the investigation of the case was made by him and after copying the FIR and the GD in the Case Diary, he went to the Hospital PHC Laksar and saw the dead body. However, it being dark, inquest could not be conducted. The police personnel were posted for safety of the dead body and he (PW-7) went to the site of the incident in the night itself. He remained at the site throughout the night and on 24.6.1987, the statement of the first informant Omi was recorded and he again went to PHC Luksar. The inquest report prepared in his handwriting and signature was proved by PW-7 as Exhibit Ka-10 and other related papers as Exhibits 11 to 13. PW-7 stated that he again went to the site of the incident, prepared the site plan, collected blood stained and plain earth, prepared the recovery memo and proved the said documents as Exhibits Ka-14 and Ka-15, being in his handwriting and signature. The blood stained and plain earth produced in the Court were proved as Material Exhibits '2' and '3'. The blood stained clothes of the deceased Soma collected during the inquest was documented in a recovery memo proved and marked as Exhibit Ka-16, being in the handwriting and signature of PW-7. It was stated that on 25.6.1987, four accused persons namely Chander, Mohar Singh, Sewa Ram and Ram Pal were arrested and on their pointing out, recovery of Lathis were made which were proved as Material Exhibits 4, 5, 6 and 7. Thereafter, PW-7 was transferred and the investigation was handed over to PW-9 namely P.C. Panth, on 24.7.1987.

In cross, PW-7 stated that a cross case was also registered in relation to the incident and the investigation of the same was also conducted by him and the charge sheet was submitted in the said case. With regard to the spot of the incident, PW-7 stated that he had seen Panchayati Well (public Well) on the spot and it was found to be a dry Well (being filled) and no drain could be seen by him. He had also seen a 'pakka' platform of appellant Chander towards the west side of the Well in front of which there was an East facing 'Varanadah' with three openings. He could not find any plinth of the old construction on the spot. PW-7 further stated, in cross, that the recovery of Lathis at the instance of appellant no. 1 Chander was made from the sugarcane field and that he did not see blood on the Lathis. He recorded statements of four accused persons on whose disclosure statements, recovery of Lathis was made but there was no public witness of the same. PW-7 had denied the suggestion of false recovery of Lathis made by him.

7. PW-9, the second Investigating Officer proved that on receipt of the investigation, he recorded statements of the witnesses on 2.9.1987 in village Kheda and also recorded statement of Head Moharrir Balveer Singh and on completion of the investigation, charge sheet was submitted, proved as Exhibit Ka-18, being in his handwriting and signature. On confrontation with the statements of the witnesses recorded under Section 161 Cr.P.C., while looking to the case diary, PW-9 stated that the witness Mange gave the statement that Chander went to his house and brought Lathi and that Soma got seriously injured and was taken to his house.

8. PW-5 and PW-6 are the doctors who had proved the injury reports of the injured persons, whereas PW-8 is the doctor who proved the postmortem report. PW-5 the radiologist who proved the x-ray reports of the injured.

9. PW-6 stated that he was posted in the PHC Laksar and examined injured Subhash, Mehar Chand, Shanti, Jhandu and Paalu and the injuries which were found on their person were noted in the injury reports, which being in his handwriting and signatures were exhibited as Exhibits Ka-3, Ka-4, Ka-5, Ka-6 and Ka-7. It was noted in the examination-in-chief of PW-6 that genuineness of the injury reports were not challenged by the counsel for the accused.

In cross for all the accused, it was stated by PW-6 that the injuries on the person of Mehar Chand were on his non-vital part and they were traumatic swelling, whereas the injury no. 1 on the person of Smt. Shanti was on her vital part.

With regard to the injuries of the accused-appellant side, it was stated by PW-6 that the injuries of Sewa Ram and Mohar Singh were examined by him and their injuries reports were proved by PW-6 as Exhibits Kha-1 and Kha-2. It was admitted by PW-6 that there might be a difference of six hours in the duration of the injuries. As regards the injuries of injured Mehar Chand, it was stated that it could be planted/created and the injury no. 1 of Smt. Shanti, could occur due to fall. With regard to the injuries of accused-appellant Sewa Ram, it was stated that it could occur due to fall. On the injury report of accused-appellant Mohar Singh, it was stated that injury nos. 2, 3 and 4 were contusions which could be planted/created and Injury no. 1 could occur due to fall.

10. The injuries found on the person of injured Subhash, Shanti, Mehar Chand, Paalu and Jhandu on the complainant side are relevant to be noted hereunder:-

"Injuries of Subhash: (I) A Traumatic Swelling 4cm x 3cm with abrasion 2cm x 1.5cm on the right side of the cheek, 1 cm anterior to the tragus of the right ear - Reddish in colour & soft clot Present in the Abrasion

(II) An abrasion 3cm x .5cm on the right clavicle - soft clot present.

Opinion: Duration is fresh. Injury No. (I) & (II) are simple in nature, caused by blunt object.

Injuries of Smt. Shanti: (I) A lacerated wound 4.5cm x 1cm x bone deep on the forehead, 2cm above from the root of the nose - fresh bleeding was present with soft clot present.

(II) A lacerated wound 1.5cm x .5cm x muscle deep with swelling on the left cheek, 1cm below the left eye lid - fresh bleeding with soft clot.

Opinion: Duration is fresh. Injury No. (I) & (II) are simple in nature, caused by some hard blunt object.

Injuries of Mehar Chanda: (I) A Traumatic Swelling 17cm x 11 cm on the dorsal side of left upper & left forearm (extended from the left supracondylar region to the middle of the left forearm - Reddish in colour.

(II) An abrasion 4.5cm x .5cm on dorsal side of lower part of right upper arm 2 cm above the right elbow joint - soft clot present.

(III) Patient complaints pain on the dorsal side of left foot but no evidence of external injury.

Opinion:- (i) Duration is fresh.

(ii) Injury No. (1) its nature can be given after x-ray report of left arm - AP - Lateral view. KUO for expert opinion, caused by blunt object .

(iii) Injury No. (II )is simple in nature, caused by blunt object.

Injuries of Pallu: (I) A lacerated wound 1cm x 1 cm x muscle deep on the lower part of right leg, 9cm above the right ankle joint - soft clot & fresh bleeding present.

(II) An abrasion 2 cm x 5 cm on the right foot, 1cm below from the anterior part of right ankle joint - soft clot present.

(III) A lacerated wound 3cm x .5cm x muscle deep on the upper and in between 1st & 2nd right toes - fresh bleeding with soft clot present.

(IV) A contusion 4 cm x 1cm on the right side of the back 13 cm from the lumbar vertebra - Reddish in colour

(V) An abrasion 1.5cm x .5cm on the right side of the chest, 5.5cm below the right clavicle - soft clot present.

Opinion:- (I) Duration is fresh.

(II) All the above injuries are simple in nature, caused by blunt object.

Injuries of Jhandu: (I) A lacerated wound 3cm x 1cm x muscle deep on the right leg, 21cm below the right Patella - fresh bleeding & soft clot present.

(II) A lacerated wound 1.5 cm x 1 cm x muscle deep on the lower part of anterior of left thigh - 11 cm from the left Patella - fresh bleeding with soft clot present.

(III) A lacerated wound 1cm x .5cm x muscle deep on the upper part of the left leg, 17cm below from the left Patella - fresh bleeding with soft clot."

Opinion:- (I) Duration is fresh.

(II) All the above injuries are simple in nature, caused by blunt object.

X-ray report of Mehar Chand: X-ray left lower part of humerus:- In skiagram, There is fracture of ulna bone upper part seen.

The injuries on the accused side namely Sewa Ram and Mohar Singh as proved by doctor PW-6 in Exhibits Kha-1 and Kha-2, respectively; are also noted as under:-

" Injuries of Sewa Ram: On person of accused Sewa Ram, a lacerated wound 3.5cm x 0.5cm x bone deep right side of head, 13 cm above right ear 13cm above, fresh bleeding. Injury is fresh and simple injuries, caused by hard blunt object."

"Injuries of Mohar Singh (1) A lacerated wound 5.5cm x 0.5cm x muscle deep right side of head, 14.5 cm above the right ear, fresh bleeding.

2. Contusion 4.5cm x 3cm on right forearm, 7.5cm above the right wrist.

3. Contusion 20cm x 1.5cm from right to left back of the chest, 3.00 cm. below the right shoulder, reddish in colour.

4. Contusion 5cm x 1cm on abdomen on left and towards the back, 19 cm back side left to the navel, fresh and simple injury, caused by hard blunt object"

PW-8 the doctor who conducted postmortem proved the injuries on the person of the deceased as under:-

"i) Incised wound 2.00cm x 1.00cm x brain cavity deep on right parietal region, 5cm above right ear with depressed fracture of right parietal bone. Margins are clean cut.

ii) Traumatic swelling 5.00 cm x 3.00 cm left side head 3.00 cm above left ear.

iii) Traumatic swelling 3.00 cm x 2 cm. back of head.

iv) Traumatic swelling 4.00 cm x 2.00 cm back of left hand with fracture of left index finger.

v) Abrasion 2.00 cm x 2.00 cm back of left elbow.

vi) Lacerated wound 6.5 cm. x 1.00 cm. x scalp deep ..... Parallel to the scalp on top and back of the head"

11. On internal examination, clotted blood was seen beneath the scalp on the head. Fracture of right Occipital, right Parietal and right temporal bones was seen. Membrance of brain were ruptured. Clotted blood was present on both sides in the brain. There were fractures in the base of brain on posterior fossa and middle fossa on the right side. The cause of death was opined as shock, hemorrhage and coma due to head injuries.

12. As per the doctor, the proximate time of death could be same as the time indicated in the report as on 23.6.1987 at about 9:30 PM. All the injuries were sufficient to cause death in the ordinary course of the business. With regard to the injury no. 1 namely the incised wound, suggestion was given to PW-8 that the said injury could have been caused if a leaf was attached to the Lathi (wooden stick) to which he replied that it could be possible. PW-6, however, opined that all injuries could be caused by 'Lathi-Danda' and proved the postmortem report being in his handwriting and signature as Exhibit Ka-7.

13. The formal witnesses, thus, proved the reports prepared by them which are relied by the prosecution to support its case of commission of the offence by the accused persons.

14. Amongst the witnesses of fact, the first informant was examined as PW-4 who stated on oath that the deceased was his real brother. The incident occurred at about 9:00 PM and on hearing the cries of his brother Soma, he went to the spot and saw that all eight accused persons were beating him. All the accused persons were carrying Lathi and a leaf was attached in the Lathi of accused Chander. The accused persons also caused injuries to all injured and in defence he (PW-4) also wielded Lathi. All the injured were taken to the District Hospital by him (PW-4) and deceased Soma died on the way to the hospital. The report was dictated by him to one Hariram in the hospital and after dictation it was read over to him and he sent the report to the police station Laksar through two persons namely Sakesh and Hariram.

In cross, it is stated by PW-4 that his house was a distance of 8-10 paces from the house of Soma and in between 2-3 houses existed which include the house of Subhash and Rati Ram. He heard the cries of people ''Bachao-Bachao' and a lot of noise was there but he did not have an idea that his brother was being beaten. PW-4 denied the suggestion that when he came out of the house there was a lot of crowd collected outside the house of his brother. He further clarified that there were eight accused persons, injured and children of the house and no one else. He then stated that he went empty hands and Subhash met him on the spot but Rati Ram was not there, whose houses were in between. The incident of ''Maarpeet' happened for about 1½ minute and the accused persons were having Lathis till the end and they wielded them. On a suggestion, PW-4 denied that he did not know as to whether the accused also sustained injuries as he was busy in saving all on his side. On further confrontation of PW-4, he stated that he did not notice whether there was blood on the spot. He stated that apart from her mother, no other ladies or children of the house came in between. He further stated that he reached at his house about ½ hours before the incident and as soon as he finished his food, he heard the noise. He did not know anything about the incident prior to the time when he heard the cries and only this much was known to him that a Panchayat was to be held and he was supposed to go there and for that reason he was having his food. On confrontation, PW-4 denied that it was wrong that no incident occurred in front of the house of deceased Soma and that he was making stories to save himself from the cross-case and a false case was lodged by him.

15. PW-3 Mehar Chand is an injured witness who stated on oath that on the fateful day at about 9:00 PM, a Panchayat was held in which he alongwith the injured and other villagers, was present. The place was lit up by the electricity light. One Mangu called accused Chander. Chander came. Mangu confronted him that "you were told by the Panchayat not to open the door on the Panchayati land towards the Well, why did you do so". Chander replied with anger challenging that whoever had guts could come forward to close the door. He then exhorted his brothers that they should be taught a lesson as they were being considered weak. Chander and his brothers Dharm Pal, Mohar Singh, Ram Pal, Sewa, Om Pal, Jagpal and Palla came out with Lathis. Chander wielded Lathi on Mangu, Soma caught his Lathi and then all other accused persons wielded Lathis on deceased Soma. When he, Jhandu and Pallu tried to intervene, the accused persons also beaten them. PW-3 stated that the bone of his hand got broken. Shanti, the mother of deceased Soma intervened so she was also beaten. The people sitting in the Panchayat then intervened. As Soma got injured, he was taken to his house. The eight accused persons then went to the house of the Soma and did Maarpeet there also. Omi (the first informant), i.e. the brother of the deceased came there and he also wielded Lathi in defence. The accused persons then ran away to their house. After 10-15 minutes, the first informant Omi took them to the hospital in a Buggy and Soma had died on the way. PW-3 stated that his injuries were examined by the doctor and he remained admitted for about 40 days in the hospital.

The topography of the place of the incident had been narrated by PW-3 in his cross-examination and it was stated that his house was located at a distance of 80 paces from the Panchayati Well. He further stated that injured Smt. Shanti was her Aunt and his house and that of Smt. Shanti were adjacent. He further stated that there was a hut, earlier, at the place where the accused Chander had built his house. He denied the suggestion that the opening of the hut was in front of the Well and stated that it was towards the hill. He further stated that they had complaint that Chander had constructed his house beyond the drain over the Panchayati Well and that the construction was going on for about 8 days prior to the incident. On confrontation, PW-3 stated that he did not make any complaint to the Gram Pradhan, the villagers made a complaint but the said complaint was not made in his presence. He then admitted that the dispute started as soon as the construction was started. Neither the Gram Pradhan nor any member of the Gram Samaj came on the spot at the time of the incident and confronted Chander. There were Abadi all around the Panchayati Well. PW-3 further stated that another witness PW-2, Singhara came from that Abadi which was located after the rasta, near the place of the incident. He then stated that the dispute was mainly because of the opening of the door and that no one had an idea that the door would be opened towards the Panchayati Well.

On a query made by the Court, PW-3 clarified that the dispute was about construction of the house by encroachment of the land of Panchayati Well and not only about the opening of the door and stated that the door was opened in order to encroach upon the entire public land (Panchayat land).

On confrontation by the counsel, PW-3 further stated that about 30-35 people were collected in the Panchayat. The villagers had decided in the morning that the Panchayat would be held at about 9:00 AM when they collected in the morning at the Panchayati Well and in the evening all of them came on their own at about 9:00 PM. In the morning, only 10-20 people were collected to decide the time of holding of the Panchayat and Chander was not confronted at that time. In the morning, they decided that they would talk to Chander only in the evening. When at about 9:00 PM, people were collected, it was decided to also call Chander on the spot. Chander came only after he was called and when he came out, he was confronted as to why he had opened the door on the Well and did not listen to the Panchayat. Apart from the said confrontation, no other talk with Chander was made and on the said confrontation, Chander exhorted his brothers to show their strength. His brother came with Lathis and Chander also brought Lathi from his house. All of them were empty hands as they did not have any fear that they would be beaten by the accused. Chander and his brothers did not wield Lathis upon the people sitting in the Panchayat immediately after coming out. They first wielded Lathi on Mangu and when Soma caught the Lathi, brothers of Chander started beating Soma.

In cross, PW-3 further stated that the Investigating Officer interrogated him after about one month of the incident. On further confrontation, he stated that the Lathi which was caught by Soma hit in his head. PW-3 had denied the suggestion that the accused wielded Lathis on all the people sitting in the Panchayat and stated that the people in the Panchayat were disbursed when 'Maarpeet' was going on. They were present on the spot but no one came in between. No one in the Panchayat tried to snatch Lathis from the accused persons and then stated that who would have entered in between the Lathis. When the accused persons were wielding Lathi, Shanti came and no other person came with her. It was reiterated by PW-3 that all on the complainant side were empty hands and no one did any 'Maarpeet'. When they reached at their houses, the accused persons also reached from behind, they again did 'Maarpeet' and Soma was heavily beaten in his house and no person from Panchayat came to their house; only Omi PW-4 came and he was empty hands and he took Lathi from the house of Subhash.

On confrontation PW-3 stated that PW-4 Omi did not disclose the fact of wielding Lathi by him to the Investigating Officer and that he only challenged the accused persons. The suggestion that PW-3 was making a false statement in order to save himself from the cross-case was categorically denied by him.

16. PW-1 and PW-2 are the eye-witnesses of the incident whose names have been mentioned in the first information report as the persons who intervened and defended the complainant side. PW-1 Manga son of Nandu stated on oath that the accused persons were residents of the same village and belong to his community and all the accused belong to one family. Pedigree of the accused persons has then been narrated by PW-1. He further stated that a Panchayati Well (Public Well) existed in between Harijan Abadi and an electric pole was fixed near the Well. The house of PW-2 Singhara was adjacent to the rasta which goes from the public Well towards the hill on the Southern side. The place was lit up by the electricity light and on the Southern side of the Well, house of Ramesh existed. On the Western side of the Well, there existed a drain which was covered by accused Chander to open the door of his house. Earlier there was a hut belonging to Chander, the door of which was opening towards the hill. The accused Chander had changed the direction of the door and opened it towards the Well. The villagers objected to it and instructed Chander not to change the direction of the door of his house. Prior to the incident, the accused Chander though agreed to the objections raised by the villagers and promised to keep the door at the same place but he did not accede to the same and the direction of door was changed to the side of the Well.

17. On the day of the incident, in the morning, it was decided that a Panchayat would be held in the evening to ask Chander as to why he had opened the door of his house towards the Well. At about 9:00 PM, villagers were collected at the Well for the Panchayat. An electricity bulb was lit up. In the said Panchayat, all the injured persons namely Mangu, Hariya, Mahaveer including PW-1 and other villagers were present. Amongst Panchayat people, Mangu called the accused Chander and asked him as to why he had opened the door towards the Well. Getting angered by it, the accused Chander first challenged the Panchayat people and then exhorted his brothers to teach them a lesson. Hearing that brothers of the accused Chander namely other seven accused persons herein came out with their Lathis and Chander started wielding Lathi at Mangu which was caught by Soma and then all the accused persons started beating the deceased Soma. The injured were also beaten by the accused persons when they tried to intervene. The mother of the deceased Soma namely Shanti was also beaten by the accused persons when she intervened. There was blood at the place of the incident. The injured went to their house, thereafter, and the accused persons also reached at the house of Soma and they also behind them. The accused again beaten the deceased Soma in front of his house and in the meantime, the first informant Omi, the brother of the deceased came. He challenged and then the accused persons ran away. Omi took all the injured to the District Hospital Laksar and Soma had died on the way.

18. It was admitted, in cross, by PW-1 that a cross-case was lodged against the complainant side namely the injured, first informant and other persons of 'Maarpeet' of Sewa Ram and Mohar Singh (two injured on the side of the accused). All the persons on the complainant side who are implicated in the cross-case belonged to an extended family except Singhara (PW-2), being related to each other. A suggestion was given to PW-1 that a relative of deceased Soma named as Jaipal who was posted as Munsif Magistrate in District Muzaffarnagar was instrumental in the lodging the case. In reply, PW-1 stated that he was not aware that Jaipal came in the Pairvi of the case. The suggestion that Panchayati Well was filled about 50 years back was denied by PW-1 and it was stated that it was filled only about 1 or 1-1/2 years ago. It was admitted that there was no tap near the Well and the suggestion that there was no drain near the Well for drainage of water was categorically denied.

19. It was admitted by PW-1 that he had no concern with Gram Sabha and was only a resident of the village. Other accused persons were also not members of the Gram Sabha and not even Mangu. He, however, stated that they made a complaint before the Gram Pradhan. PW-1, however, could not recollect as to whether the Gram Pradhan or the members of the Gram Sabha came at the spot of the incident on the fateful day. PW-1, on confrontation, stated that the door towards the Well was opened by accused Chander on the same day and about one year prior to the incident, he started filling the Well and drain was also closed. About one week prior to the incident, he was instructed not to change the direction of the door for the reason that he had already covered the drain. It was further stated by PW-1 that since there were taps in the village, no one had objected to the act of the accused Chander in filling the Well. He then stated that no body takes interest in the matter of Panchayat and when the accused Chander filled the Well and covered the drain, they did not have any idea that he would also encroach upon the Panchayat land. PW-1 further stated that his statement was recorded by the Investigating Officer. When confronted, he replied that he did not know as to why his correct statement was not recorded. While stating that the villagers were collected in the Panchayat and they were all sitting near the Well, PW-1 stated that all of them were empty hands as they did not have any apprehension of fight. Chander also came empty hands initially, being angered, he went to his house and brought Lathi. Before they could understand anything, he wielded Lathi on the complainant side and all other accused persons also joined him. The Panchayat people had disbursed and no one intervened. PW-1 stated that the house of injured Shanti must be about 70-80 paces from the place of the incident and the suggestion that it was about 200 paces was categorically denied. He then stated that no one stopped Shanti from intervening and the accused persons were not shouting when they went towards the house of Soma. All injured went away quietly after sustaining injuries and they were not shouting 'Bachao-Bachao'. The deceased Soma went to his house on his own and the accused persons also went behind him. A suggestion that PW-1 belonged to the extended family of deceased Soma was categorically denied by him. The suggestion was given about political rivalry of the accused Chander with other persons including PW-2 Singhara. PW-1, however, denied that accused Chander had won the elections. The suggestions that he did not witness the incident and that he belonged to the family of the deceased were categorically denied by PW-1.

20. PW-2, Singhara, another witness mentioned in the FIR, is a villager whose version is almost the same as narrated by PW-1, PW-3 and PW-4 about the manner and the reason for the occurrence. On confrontation, PW-2 denied that he had also encroached upon the Gram Sabha land and on an application given by Chander, his possession was removed. On the suggestion of political rivalry with the accused Chander, he stated that the said election was held much earlier and it was denied that the injured were on his side in the said election. It was admitted by PW-2 that he was an accused in the cross-case. The statements given by the prosecution witnesses (PW-1, PW-3 and PW-4) that the accused Chander had started filling the Well and that he had earlier agreed not to open the door towards the Well, had been reiterated by PW-2. It was stated by him that all on the complainant side were empty hands. PW-2 was confronted with his statement under Section 161 Cr.P.C. and reiterated that the injured went to their house after sustaining injuries and the accused persons also followed them; 'Maarpeet' had occurred in front of the house of deceased Soma for about 1½ minutes. PW-4 Omi, wielded Lathi on the accused persons. PW-2 admitted the fact that Omi (PW-4) also wielded Lathi was not told to the Investigating Officer and then he stated that the Officer might not have asked him. The suggestion that the injured themselves went to the house of the accused Chander carrying Lathi at about 9:00 PM, on the fateful day, and confronted with accused Chander and Mohar Singh and then started wielded Lathi on them and Sewa Ram who came in between was also beaten by Lathis was denied by PW-2. It was denied that Sewa Ram and Mohar Singh (injured on the accused side) wielded Lathis in their defence. It was also denied that in order to get away from the cross case, a false story was concocted by the witnesses.

21. Placing the above noted oral and documentary evidence on record, learned counsel for the appellants argued that it has come in the evidence of the prosecution witnesses that both sides wielded Lathis though it is sought to be projected that the victim side acted in self-defence. Two accused persons namely Mehar Chand and Sewa Ram had sustained injuries and their injuries were examined by PW-6, the doctor, who had also examined the injured on the complainant side. It is, thus, proved that two persons on the accused side had sustained injuries in the same occurrence. In the said scenario, non-explanation of the injuries of the accused side will be fatal to the prosecution case. The prosecution witnesses who had denied the presence of the injuries on the person of the accused are proved to be liar on the most material point and their evidence is liable to be rejected as untrustworthy. The omission on the part of the prosecution to explain the injuries on the person of the accused assumes greater importance as the prosecution evidence consisted of interested, inimical and partisan witnesses. The defence version which explains the injuries on the person of the accused, therefore, is to be rendered probable throwing serious doubt on the prosecution case.

It is further contended that the prosecution has suppressed the genesis of the incident. In the first information report, PW-4, the first informant very conveniently suppressed the first place of the incident and the story narrated by him in the FIR as well as his version in the Court was only with respect to the place of the incident being in front of the house of the deceased. Whereas, all other witnesses stated that the incident had started from near the public Well and after deceased Soma got injured by the accused and went to his house, the accused persons reached there and beaten him again.

22. The act of PW-4 Omi in suppressing the first part of the incident as proved by other prosecution witnesses casts a serious doubt on the prosecution story. The defence version that the complainant side came to the house of accused Chander and wielded Lathis on him and two accused-appellants namely Mehar Chand and Sewa Ram got injured when they tried to save accused Chander is more probable and liable to be believed. At least, it is proved that the genesis of the incident has been suppressed by the complainant side. The prosecution witnesses, therefore, cannot be said to be truthful when they have given reason for the occurrence which is that the accused Chander attacked Mangu and deceased Soma was beaten while he was saving Mangu and other injured were beaten when they came to save the deceased Soma. It is proved form the statement of the prosecution witnesses itself that no Gram Sabha member or the Gram Pradhan was present. The assertion by the prosecution witnesses that a Panchayat was called is an utter lie. Six persons were injured on the complainant side whereas only one Mehar Chand had entered in the witness-box and no other witness came to depose in the Court. This shows that the prosecution version about the genesis of the incident is false. There is no recovery from the place of the second incident, i.e. in front of the house of the deceased Soma whereas three Lathis were recovered from Chander, Mohar singh, Ram Pal and Sewa Ram.

23. With the above contentions, it is vehemently submitted by the learned counsel for the appellants that in view of the cross-case lodged by the accused side giving their version of the incident, it is proved in the present case that the prosecution had suppressed the genesis of the incident. The trial court had, thus, committed grave error in convicting the accused persons for the offence of murder under Section 302 readwith Section 149 IPC. The decision of the trial court is liable to be set aside and the appeal deserves to be allowed.

24. Learned AGA, in rebuttal, argued that it is not one of those cases where non-explanation of the injuries of the accused side will create any dent in the prosecution story. It is argued that a perusal of the injury reports of two accused namely Sewa Ram and Mohar Singh, as proved by the doctor PW-6 indicates that their injuries were simple in nature and even the doctor says that such injuries could be self inflicted. The prosecution by cogent, independent and disinterested witnesses proved the entire incident since its inception till the end. Non-explanation of the injuries in view of the nature of injuries and the evidence of the prosecution witnesses will not affect the prosecution case. The consistent and creditworthy evidence of the prosecution witnesses will not in any way be affected on account of the alleged omission on the part of the prosecution to explain the injuries.

Reliance is placed on the decision of the Apex court in State of Gujarat vs. Bai Fatima1 as referred in paragraph ''11' of the decision in Lakshmi Singh and others etc. vs. State of Bihar2.

25. Having considered the submissions of the learned counsels for the parties and perused the record, while analysing the evidence of the prosecution witnesses, we would first like to deal with the arguments of the learned counsel for the appellants that the prosecution had not correctly described the place of the incident and, thus, suppressed the genesis of the incident.

26. To deal with the said argument, we may record that the first information report of the incident was lodged by the brother of deceased Soma, who was examined as PW-4. In the evidence of PW-4 Omi, it has come that his house was at a distance of 8-10 paces from the house of deceased Soma. It was categorically stated by PW-4 that on the fateful day at about 9:00 PM, he was in his house having dinner and he went to the house of his brother Soma on hearing cries of Soma, he then saw that the accused persons (eight in number) were beating him. They all were carrying Lathi and his mother and others were injured. In defence, PW-4 also wielded Lathi. This version of PW-4 in his examination-in-chief is corroborated from his first version in the written report where he narrated the incident occurred in front of the house of deceased Soma. When confronted PW-4 categorically stated that at the time of the incident, he was present in his house and as he could barely finish his food when he heard the noise and before that he only knew that a Panchayat would be held. He was about to go and that is why he was having his food. From the version of PW-4 in the written report lodged by him as also in his deposition before the Court, it is evident that he had only seen one incident which occurred in front of the house of Soma wherein Soma got injured and other witnesses including mother of deceased namely Shanti Devi also suffered injuries. In view of the categorical statement of PW-4 that he was having his food as he was about to go to the Panchayat which was to be held on that day, it is established that he was not present at the first place of the incident, i.e. near the Panchayati Well. Other witnesses who had seen the occurrence near the Panchayati Well did not mention the presence of Omi at the said place. Non-mentioning of the occurrence of the incident from the beginning by PW-4 in the first information report, therefore, is of no consequence. The version of PW-4 in his deposition before the Court cannot be said to be in contradiction to the testimony of other witnesses or in suppression of the correct facts, inasmuch as, PW-4 categorically proved that he was the witness of only the second part of the incident which occurred in front of the house of deceased Soma. Moreover, FIR is not an encyclopedia. [Reference Subhash Kumar vs. State of Uttarakhand3]

The observations in para '12' of the said judgment are relevant to be noted hereunder:-.

"12. FIR as is well known is not to be treated to be as an encyclopedia. Although the effect of a statement made in the FIR at the earliest point of time should be given primacy, it would not probably be proper to accept that all the particulars in regard to commission of offence must be furnished in detail."

27. As regards the first place of the incident, the Panchayati Well in front of the house of accused Chander, from the version of the defence itself, it is admitted fact that an incident of 'Maarpeet' had occurred near the Panchayati Well which was near the house of accused Chander. The first place of the incident, thus, is not disputed by both sides. The dispute is as to who was the aggressor, i.e. whether the accused persons wielded Lathi in their defence. In this regard, a perusal of the site plan indicates that the place "A" therein has been shown as the house of Chander on account of which the dispute arose; place "C" as Panchayati Well. The place shown by "X" is the place from where the blood stained earth was collected by the Investigating Officer. The recovery memo Exhibit-15 was proved by PW-7, the Investigating Officer and the blood stained and plain earth collected by him as material Exhibits '2' and '3'. The fact that the incident had occurred at place "X" is also proved from the statement of the prosecution witnesses namely PW-1 and PW-2 and the injured witness PW-3. Though there is a suggestion of enmity of PW-2 Singhara with the accused Chander but there is no such suggestion against PW-1 Manga son of Nandu who is an independent witness. It is proved by PW-1 that the genesis of incident was the construction raised by the accused Chander. The prosecution witnesses are consistent about the fact that accused Chander had opened the door of his house towards the Well whereas initially the door was on the other side.

It has also come in the evidence of the prosecution witnesses that while opening the door, accused Chander had covered the drain of the Panchayati Well. It is admitted by the witnesses that public Well was not in use as a source of water in the village, however, the villagers had an apprehension that Chander would encroach upon the public land adjacent to the Well by opening the door of his house facing the Well. It is also proved that they confronted accused Chander in that regard and despite assurance given to the villagers, accused Chander opened the door of his house in front of the Well on the date of the incident. As the construction was going on, the villagers decided to hold a meeting to confront him together. The said meeting was convened besides the Well which was close to the house of Chander.

28. At about 9:00 PM, when villagers were collected near the Well, one of them namely Mangu called Chander from his house and confronted as to why he did not accede to the request not to change the side of the door of his house. Upon being confronted by Mangu in the presence of other villagers, accused Chander got angry and exhorted his brothers to teach a lesson to all of them. All eight accused belonging to one family came with their Lathis and accused Chander started beating Mangu who had confronted him. The deceased Soma intervened and caught hold of the Lathi of accused Chander, other accused persons then wielded Lathis on him.

29. It is also proved by the prosecution witnesses that on sustaining injuries, Soma went towards his house and the accused persons followed him. The second incident of 'Marpeet' in consequence of the first occurrence near the Well, had occurred in front of the house of Soma and at that point of time, the first informant Omi brother of the deceased came from his house. It is admitted by PW-4, the first informant at the very first instance, i.e. in the first information report that they also wielded Lathi in defence. In the examination-in-chief, PW-4 reiterated that he wielded Lathi in defence though he had denied, in cross, that he did not know as to whether the accused persons sustained injuries or not as he was busy in saving the injured. This version of the PW-4 cannot be said to be a denial of the injuries sustained by two accused persons namely Sewa Ram and Mohar Singh. Rather the version of PW-4 in narrating that he also wielded Lathi in defence while the accused persons were causing injuries to his mother and brother is a truthful explanation of the simple injuries caused on the person of the accused namely Sewa Ram and Mohar Singh. Neither there is any inconsistency in the version of prosecution witnesses nor they are at variance about the manner in which the assault had taken place.

30. The contention of the learned counsel for the appellants that since the prosecution had denied the injuries on the person of the accused, it necessarily lead to an inference that the witnesses were lying and the prosecution had suppressed the genesis and the origin of the occurrence and had not presented the true version, therefore, is liable to be rejected.

31. It is, thus, proved that the place of the incident shown as "X" in the site plan near the Well was the first place where accused Chander was confronted and deceased Soma was beaten and the place shown as "H", in front of the house of the deceased Soma is the place of the second incident in sequence where the accused persons again beaten him. Both the incidents were in continuation as is proved from the ocular version of the prosecution witnesses. With the collection of blood stained earth from place "X", it is proved that the place of the inception of the dispute was place "X". Only variance which could be pointed out by the learned counsel for the appellants in the version of three prosecution witnesses namely PW-1, PW-2 and PW-3 and the first informant namely PW-4 is about the place where other injured sustained injuries. It is not clear as to whether they got injured at place "X" (near the Well) or place "H" (near the house of deceased Soma). The statements of the prosecution witnesses PW-1, PW-2 and PW-3 is that other injured sustained injuries at the first place where dispute had commenced whereas the statement of PW-4 is that they were attacked in front of the house of the deceased Soma. In the opinion of the Court, that fact itself is not such which has to be given undue weightage so as to discard the consistent admissible evidence of the prosecution witnesses that all six injured including one deceased got injuries in the same occurrence, whether it was at place "X" or place "H".

32. It is proved that all six injured on the prosecution side were taken to PHC Laksar and they were examined on 23.6.1987 (on the date of the incident) between 10:15 to 11:00 PM. Their injury reports were proved by PW-6 and the injuries sustained by them were of hard and blunt object as is evident from the injury reports. Lacerated wound and swelling on forehead and cheek of injured Shanti; lacerated wound on right and left legs and thighs of injured Jhandu; lacerated wound on legs, toes, foot on the person of the injured Paalu and traumatic swelling on upper arm of injured Chand; traumatic swelling with abrasion on the cheek and right clavicle on the person of the injured Subhash, all injured on the prosecution side proved that they were attacked and beaten by Lathis, weapons assigned in the hands of eight accused persons.

33. The first information report is a prompt report of the occurrence, lodged within 1-1/2 hours of the incident. The police also reached the spot and the site plan was prepared on the very next day, i.e. 24.6.1987. All injuries on the person of the deceased were also proved to have been caused by Lathi. In the statement of PW-8, the postmortem doctor, it has come that there was traumatic swelling at the back of head of the deceased and on internal examination, right occipital, right parietal, right temporal bone and left parietal and left temporal bone were all broken. It is proved by the doctor that the death was caused due to head injuries.

34. Whereas injuries on the accused (defence) side as proved by PW-6 (doctor) from the injury reports as Exhibit Kha-1 and Kha-2 were minor in nature. Four injuries on the person of accused Mohar Singh were one superficial lacerated wound and three contusions on right hand and abdomen which as opined by the doctor were simple injuries caused by a blunt object like Lathi. Whereas on the person of accused Sewa Ram, one lacerated wound of 3.5cm x 0.5cm bone deep on the right side of head 13cm above right ear was found which was also termed as simple injury by the doctor namely PW-6 and that the said injury could have been caused by a blunt object like Lathi. In comparison to the injuries of the complainant (prosecution) side, amongst whom the injuries on the person of Shanti were on vital parts with that of the injuries of the accused (defence) side, it is difficult to accept that six persons on the complainant side had suffered injuries as the accused persons wielded Lathis in their defence. The gravity of the injuries on the person of the deceased Soma, his mother Shanti and other four injured persons on the complainant (prosecution) side makes the defence story improbable. The version of PW-4 that he wielded Lathi in defence is acceptable being more probable and trustworthy.

35. In their version under Section 313 Cr.P.C., the accused Chander, Sewa, Mohar Singh simply stated that the Panchayati Well was filled (closed) for a long time and there was no drain. The complainant side came to the house of Chander and started abusing him as to why he constructed his house at the land of Panchayat and started beating them. Mohar Singh and Sewa Ram had suffered injuries and the accused also defended them. Apart from this version in Section 313 Cr.P.C., no positive evidence has been brought by the accused persons to prove that the prosecution witnesses on the complainant side were the aggressor of the crime, i.e. 'Marpeet' was started by them and the accused persons wielded Lathi only in defence. Apart from three accused persons namely Chander, Mohar Singh and Sewa Ram, rest of the five accused namely Om Pal, Jagpal, Ram Pal, Paala and Dharm Pal pleaded alibi. But no positive evidence to prove the plea of alibi had been produced by them. It may be noted, at this juncture, that only two appellants namely appellant no. 2 Dharm Pal and appellant no. 6 Jagpal are before us and all other appellants had died. In absence of any positive evidence having been lead by appellant no. 2 Dharm Pal and appellant no. 6 Jagpal to support their plea of alibi, in light of the consistent and creditworthy evidence of the prosecution, the explanation offered by appellant nos. 2 and 6 Dharm Pal and Jagpal, respectively; in their explanation under Section 313 Cr.P.C., is liable to be thrown.

36. In light of the above discussion, it is held that the prosecution has explained the injuries of the defence with the version of PW-4 that he wielded Lathi in defence while his mother and brother were beaten by Lathis by eight accused persons in front of the house of Soma. It is also proved that the dispute started with the confrontation of the accused Chander by the villagers, who were collected near the Well, over the construction raised by Chander. It is also proved that accused Chander started beating one villager Mangu who called Chander to confront him and deceased Soma was beaten when he caught hold of Lathi of Chander.

The accused persons wielded Lathi on deceased Soma in such a manner that he suffered grievous injuries on his vital part (head). Five other persons were also injured in the same transaction when they intervened. The injuries of Shanti mother of deceased Soma and on the person of all other injured could be attributed to the weapon Lathis which were recovered from the accused persons.

37. There is nothing on record to accept the defence version that they wielded Lathi in defence rather comparison of injuries of the prosecution side with that of the defence side proved that the injuries on the person of the accused were caused when PW-4 Omi wielded Lathi in defence. One of the injured Mehar Chand had entered in the witness-box to prove the genesis of the dispute and the nature of the occurrence. It is proved by PW-3 that only the first informant Omi who came from his house in front of the house of the deceased had challenged the accused persons by wielding Lathi. All other on the complainant side were empty hands as is proved by the prosecution witnesses as they were collected near the Well to talk to Chander.

38. In view of the above discussion, the contention of the learned counsel for the appellants that the prosecution had suppressed the genesis and the origin of the occurrence and had, thus, not presented the true version is liable to be rejected. Further submission is that the prosecution had failed to explain the injuries on the person of the accused and, therefore, the defence version is to be rendered probable so as to throw away the prosecution case, is without any substance.

39. In the totality of the facts and circumstances of the present case, we do not find any error in the judgment of the trial court in conviction of the accused-appellants namely appellant no. 2 Dharm Pal and the appellant no. 6 Jagpal whose presence on the spot was proved by all eye-witnesses of the prosecution in a consistent manner. The sentence awarded to the appellant nos. 2 and 6 under Section 302 is with the aid of Section 149 IPC. It is proved by the prosecution that the appellants herein were members of the unlawful assembly and they had committed the offence of murder in prosecution of the common object of that assembly.

39. For the offence under Section 323 IPC for causing injuries to five injured persons with the aid of Section 149 IPC, we do not find any error in the judgment of the trial court, inasmuch as, the injuries on the person of the injured were proved by the doctor, who prepared the injury reports and also by the injured Witness PW-3 in his oral testimony.

40. As regards the punishment under Section 147 IPC, once the accused persons namely appellant nos. 2 and 6 have been found guilty of rioting, their conviction under Section 147 IPC cannot be said to suffer from any error of law. The sentence awarded to the appellants herein for the offences under Sections 147 and 323 is appropriate in view of the gravity of the offence. The sentence awarded under Section 302 IPC is minimum.

41. For the above discussion, no interference is required in the judgment and order dated 14.12.1989 passed by the IVth Additional District & Sessions Judge, Saharanpur in Sessions Trial No. 597 of 1987 (State vs. Chandra), under Section 147, 148, 302/149 and 323/149 IPC, Police Station Laksar, District Saharanpur which is hereby affirmed.

The appeal is dismissed, accordingly.

Both the appellants Dharm Pal and Jagpal are in jail.

The office is directed to transmit back the lower court record along with a certified copy of this judgment for information and necessary compliance.

Necessary steps shall be taken by the Court below to notify this judgment to all concerned.

The compliance report be furnished to this Court through the Registrar General, High Court, Allahabad.

			   (Vikas Kunvar Srivastav,J.)    (Sunita Agarwal,J.)
 
Order Date :- 20.5.2022
 
Brijesh