Ganesh Datt vs State Of Uttarakhand

2011, Sudarshan Verma, Jagdish, Deep Narain and 2

Rajendra were accused Nos. 1 to 4 and the appellant

Ganesh Datt in Criminal Appeal No.1881 of 2011 was

accused No.5 in Sessions Trial case No.109 of 1990 on

the file of Vth Additional Sessions Judge, Nainital and

were tried for the charges under Sections 147, 148,

302 read with 149, 307 read with 149 and Section

324 read with 149 IPC, and the Trial Court convicted

and sentenced each of them to undergo life

imprisonment under Section 302/149 IPC; Rigorous

Imprisonment for a period of 7 years under Section

307/149 IPC; Rigorous Imprisonment for a period of

one year under Section 324/149 IPC, Rigorous

Imprisonment for a period of six months under

Section 147 IPC and Rigorous Imprisonment for a

period of one year under Section 148 IPC.

Challenging the conviction and sentence they

preferred Criminal Appeal No.927 of 2001 and the

High Court of Uttarakhand at Nainital dismissed the

appeal. Aggrieved by the same they have preferred

the present appeals.

3

3. Shorn of unnecessary details the case of the

prosecution is as follows : PW1 Bali Raj, PW2 Moti Lal

deceased Prabhunath and Raj Bali are sons of PW3

Ram Lakhan. On 26.8.1989 at about 6.00 a.m. they

along with servant Bahadur, were sitting in the

verandah of the house of Prabhunath and at that

time accused persons Sudarshan Varma armed with

country made pistol, Deep Narain armed with gun,

Jagdish armed with axe (Farsa), Rajendra and Ganesh

Datt armed with lathis came there and accused

Sudarshan shouted to kill them today itself and by so

saying he fired at Prabhunath with pistol and accused

Deep Narain fired gunshots at PW2 Motilal and Raj

Bali and accused Jagdish attacked PW2 Motilal with

axe on neck which he defended by left hand resulting

in injuries and accused Rajendra and Ganesh attacked

them with lathis. On the sound of fire and shouting

the villagers came there and accused fled away.

4. Accused Sudarshan who was then the village Pradhan

went to the Police Station Rudrapur and lodged a 4

First Information Report against Prabhunath, Motilal

and Bali Raj at 7.25 a.m. on 26.8.1989 and a case was

registered as Crime No. 583 of 1989 for the alleged

offences under Sections 307 and 324 IPC. PW3 Ram

Lakhan took the injured Prabhunath, PW2 Moti Lal and

Raj Bali to the Police Station Rudrapur and lodged a

First Information Report at 8.10 a.m. on the same day

against accused Sudarshan, Jagdish, Deep Narain,

Rajendra and Ganesh Datt, on which a case was

registered as Crime No.583-A for the alleged offences

under Section 147, 148, 149, 307, 324 and 323 IPC

and the injured were sent to hospital.

5. PW6 Dr. A.K. Rana, Medical Officer in Jawahar Lal

Hospital Rudrapur examined Prabhunath at 9.40 a.m.

on 26.8.1989 in the hospital and found the following

injuries:

“i) An abrasion 4 cm x 4 cm on top of head 12

cm from left ear lobe. Fresh bleeding present. 5

ii) A contusion 15 cm x 10 cm on left jaw with

multiple punctured wound on whole surface.

Advised X-ray skull. Fresh bleeding present.

Punctured wound size 0.5 cm x 0.25 cm x not

probed (depth) with margins inverted.

iii) A contusion 15 cm x 20 cm on left side of

whole neck with multiple punctured wounds

measuring 0.25 cm x 0.25cm x not probed

(depth) with margins of wound inverted.

Advised X-ray neck and left shoulder. Fresh

bleeding present.

iv) An incised wound 7 cm x 5 cm x muscle

deep on left upper arm, 4 cm above top of left

elbow. Fresh bleeding present.

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v) An incised wound 5 cm x 5 cm bone deep

on tip of left elbow extending upwards. Fresh

bleeding present.

vi) An incised wound 5 cm x 2 cm x muscle

deep on left side bone of middle finger. Fresh

bleeding present.”

He opined in his report Exh.A8 that injury No.1

was simple and could have been caused by any hard

object; injury Nos. 4, 5 and 6 could have been caused

by some sharp edged weapon and injury No.2 and 3

were kept under observation and general condition of

the injured was very serious.

PW6 Dr. A.K. Rana examined PW2 Moti Lal at

9.45 a.m. in the hospital on 26.8.1989 and found the

following injuries:

i) A contusion 6 cm x 4 cm on right side of

forehead at hairline with a puncture wound

0.25 cm x 0.25 cm x not probed (depth) Fresh

bleeding present Advised X-ray skull. 7

ii) A contusion 4 cm x 3 cm just below left eyelid

with a puncture wound 0.25 cm x 0.25 cm x

not probed (depth) in its middle, wound

margins inverted. Advised X-ray skull. Fresh

bleeding .

iii) Multiple punctured wounds 0.25 cm x 0.25 cm

x not probed (depth) on right side of chest

frontal aspect and left side chest. Fresh

bleeding present. Advised X-ray of chest.

iv) A punctured wound 0.25 cm x 0.25 cm X not

probed (depth) on right forearm anterior

aspect. Advised X-ray forearm. Fresh bleeding.

v) A punctured wound 0.25 cm x 0.25 cm x not

probed (depth) on right base of thumb, wound 8

margins inverted. Fresh bleeding present.

Advised X –ray right hand.

vi) An incised wound 7 cm x 5 cm x muscle deep

on right side forearm on upper and proximal ½

part. Fresh bleeding present”

He opined that injury Nos. 1 to 5 were kept under

observation and they were fresh and injury nos.6 was

simple and could have been caused by a sharp

edged weapon.

PW6 Dr. A.K. Rana examined Raj Bali at 9.50

a.m. in the hospital and found a contusion 6 cm x 4

cm on lower side of left eye and opined that the

injury was simple in nature.

6. PW7 Sub-Inspector Surender Singh took up the

investigation and visited Jawahar Lal Nehru Hospital 9

on 26.8.1989 and after coming to know the death of

Prabhunath in the hospital on the same day altered

the offence to one under Section 302 IPC and

examined PW2 Motilal and Rajbali in the hospital on

the same day. He conducted inquest and recorded

the statement of Panchas and complainant. He gave

the requisition for post-mortem.

7. PW4 Dr. S.M. Pant conducted post-mortem at 2.30

p.m. on 27.8.1989 and found the following injuries:

i) Lacerated wound 2 cm x ½ cm x scalp deep

on the head, 11 cm above left eyebrow.

ii) Multiple abrasions in an area of 30 cm x 10

cm of sizes 0.25 cm to 0.5 cm from left side

of face, left side of neck and left upper chest.

All injuries painted with some red coloured

medicine.

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iii) Contusion in an area 10 cm x 8 cm around

left nipple.

iv) Contusion right side of abdomen 12 cm x 15

cm area. 3 cm right to naval.

v) Stitched wound with two stitches 4 cm long

on the porterior aspect of left upper arm, 1

cm from elbow joint.

vi) Stitched wound with 3 stitches 5 cm long, 5

cm above injury No.(v)

vii) Lacerated wound 1.5 cm x muscle deep on

left middle finger proximal phalanx painted

with medicine.

viii) Lacerated wound 1 cm x muscle deep on the

middle phalanx of index finger.” 11

He opined in the autopsy report that the deceased

had died of shock and haemorrhage as a result of

ante mortem injuries.

8. PW7 Sub-Inspector Surender Singh went to the

occurrence place and prepared site-plan and seized

blood-stained soil and sample soil in the presence of

witnesses. He also seized 10 bullets of 12 bore

from the occurrence place out of which 4 were

emptied and 6 were live, by preparing a Memo. He

examined the wife of the deceased Smt. Raj Kumari

on 27.8.1989 and recorded her statement.

Thereafter PW5 Inspector Vijender Kumar Bhardwaj

continued the investigation and recorded the

statements of other witnesses including the seizure

witnesses and completed the investigation, filed

charge sheet against the accused and it was taken

on file in Sessions Trial Case No.109 of 1990 on the

file of Vth Additional Sessions Judge.

9. In the cross case, final report came to be filed and it

was taken on file in Sessions Trial No.177 of 1990 on 12

the file of the same Court. Both the cases were

tried by the same Court. In the case of Sessions

Trial No.109 of 1990, prosecution witnesses PWs 1

to 7 were examined and documents in Exh.A1 to

A17 were marked and wife of the deceased Raj

Kumari was examined as CW-1. The trial court in

Sessions Trial No.109 of 1990 found all the five

accused guilty of the charges framed against them

and sentenced them as mentioned above. The

appeal preferred came to be dismissed and that is

now appealed against. At the same time the trial

court in the cross case in Sessions Trial No.177 of

1990 found that Sudarshan Verma and his

associates were aggressors and acquitted accused

Motilal and Bali Raj of the charges framed against

them. Challenging the acquittal the State preferred

Government Appeal No.2017 of 2001 and the

complainant Sudarshan Verma independently

challenged the acquittal by preferring Criminal

Revision No.92 of 2001 and the High Court after

hearing all the matters together dismissed both the 13

Government appeal as well as Criminal Revision, by

a common judgment and it has become final since

there was no further challenge.

10. Mr. Mukesh K. Giri, learned Additional Advocate

General appearing for the respondent State submits

on instructions that 2nd appellant Jagdish in Criminal

Appeal No.1884 of 2011 died on 9.1.2012 while

undergoing the sentence in jail. Submission is

recorded. The appeal insofar as he is concerned

stands abated.

11. The learned senior counsel appearing for the

appellants strenuously contended that appellant

Sudarshan Verma suffered 19 injuries and appellant

Deep Narain also suffered injuries in the occurrence.

The ocular witnesses namely PWs 1 to 3 are

interested and inimical witnesses and in their

testimonies they have not stated as to how the

appellants/accused mentioned above sustained

injuries during the occurrence and they are lying on 14

a most material point, and therefore, their evidence

is unreliable and further their ocular testimony with

respect to the assault is inconsistent with the

medical evidence and the weapons of offence were

not recovered and situs of the assault was also not

fixed and so the prosecution has failed to prove the

case against appellants beyond reasonable doubt

and the conviction and sentence imposed on the

appellants are liable to be set aside.

12. Per contra learned Additional Advocate General

appearing for the respondent State contended that

the injuries on the person of appellants/accused are

not very grievous in nature and the ocular evidence

is clear, cogent and non explanation of the injuries

on the appellants/accused ipso-facto cannot be the

basis to discard the prosecution case and the

conviction and sentence imposed on the appellants

are sustainable.

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13. The prosecution case is that the appellants armed

with dangerous weapons came and attacked PW3

Ram Lakhan and his sons resulting in the death of

Prabhunath and injuries to PW2 Moti Lal. The

prosecution examined PW1 Bali Raj, PW2 Moti Lal

and their father PW3 Ram Lakhan as having

witnessed the occurrence. They have testified that

on 26.8.1989 at about 6.00 a.m., when they were

sitting in front of their house accused persons

Sudarshan armed with country made pistol, Deep

Narain with a gun, Jagdish with axe, Rajendra and

Ganesh Datt with lathies, came there and

Sudarshan shouted to kill them today by so saying

he and Deep Narain fired shots at Prabhunath and

PW2 Moti Lal and Jagdish tried to attack on the neck

of PW2 Moti Lal with axe which he defended by his

left hand resulting in injuries and Rajendra and

Ganesh Datt attacked them with lathis. On hearing

the sound of firing and shouting villagers gathered

there and accused fled away. PW3 Ram Lakhan

took his injured sons Prabhunath and PW2 Moti Lal 16

to Police Station Rudrapur and lodged complaint

and the injured were admitted in Jawahar Lal Nehru

Hospital. PW6 Dr.A.K. Rana examined injured

Prabhunath at 9.40 a.m. on 26.8.1989 and found 3

incised wounds on the left arm, 2 contusions with

multiple puncture wounds on neck and left shoulder

and an abrasion on the top of head. He directed to

take x-ray of head, neck and left shoulder and found

the general condition of the injured very serious.

He opined that the incised wounds were simple and

could have been caused by any sharp edged

weapon and the abrasion was simple and could

have been caused by any hard object. He has not

expressed any opinion with regard to contusions

since they were kept under observation. He also

examined PW2 Moti Lal at 9.45 a.m. in the same

hospital and found 2 contusions; on the forehead

and below left eye-lid, punctured wounds on chest

and right arm and an incised wound on right fore-

arm and opined that the injuries were simple in

nature. Prabhunath died on 26.8.1989 itself in the 17

hospital. PW 4 Dr. S.M. Pant conducted autopsy and

found the same injuries mentioned above and

opined that the deceased had died of shock and

haemorrhage as a result of ante mortem injuries

and further observed that the death has occurred a

day before and there was no fire arm injury. Exh.

A-8 is the autopsy report. From the above it is clear

that Prabhunath died of injuries sustained during

the occurrence.

14. The eye-witnesses namely PWs 1 to 3 and CW-1

Smt. Raj Kumari, widow of deceased Prabhunath

have testified that accused Sudarshan and accused

Deep Narain fired shots with pistol and gun

respectively at Prabhunath during the occurrence

resulting in injuries but as per the medical evidence

there was no gun shot injury found on any part of

the body of Prabhunath. Thus in short, the

deceased Prabhunath is concerned the ocular

evidence is totally inconsistent with the medical

evidence with respect to assault by accused 18

Sudarshan and Deep Narain. If this matter is false,

there is no guarantee that the other assault

deposed to by the eye-witnesses was also not false.

15. As per the ocular testimony the weapons used in

the occurrence are country made pistol, gun, axe

and lathis. In his testimony PW7 Sub-Inspector

Surender Singh has stated that he went to the

occurrence place during investigation and seized 10

bullets of 12 bore from the spot out of which 4 were

empty and 6 were live, under Exh. A-16 Memo.

Initial investigation was done by PW7 Sub-Inspector

Surender Singh and thereafter it was continued and

concluded by PW5 Inspector Vijender Kumar

Bhardwaj. They have not taken any steps to

recover the weapons alleged to have been used in

the occurrence. No scientific method of

investigation was pressed into service. We did not

find any explanation in the testimonies of the

Investigating Officers in this regard. The lethargic 19

attitude of the officers conducting investigation is

deplorable.

16. It is contended that the appellant/accused

Sudarshan sustained extensive injuries and

appellant Deep Narain was also injured during the

occurrence. In the cross-case Dr. J.P. Arora has

testified that he examined Sudarshan at 7.30 a.m.

on 26.8.1989 at Jawahar Lal Nehru Hospital,

Rudrapur and found the following injuries on his

body :

“i) Incised wound 4 cm x 0.5 x scalp deep on left side of head parietal region 11 cm left from ear. Blood oozing present. Intervening tissues clean cut.

ii) Incised wound 2 cm x 0.25 cm x scalp deep on left side head, 7.5 cm above left ear. Blood oozing present. Intervening tissues clean cut.

iii) Incised wound 5 cm x 2 x scalp deep on right side of forehead, ½ cm above right eyebrow.

Intervening tissues clean cut. Blood oozing present.

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iv) Incised wound 4 cm x ½ x skin deep on right check, 3 cm in front of left ear. Intervening tissues clean cut. Blood oozing present.

v) Incised wound 4 cm x 0.2 x scalp deep on left side of head, 6 cm above right eyebrow.

vi) Abrated contusion ½ cm x ½ cm on right side of face, 4 cm away from right eye outer angle.

vii) Abrated contusion 5 cm x ½ cm on front of neck left side, 3 cm above right clavicle.

viii) Incised wound 2 cm x 0.2 cm x bone deep on front of left little finger, 4 cm above root of finger. Intervening tissues clean cur. Blood oozing present.

ix) Incised wound 2 cm x 0.2 cm x bone deep on front of left ring finger, 3.5 cm above base. Intervening tissues clean cut. Blood oozing present.

x) Incised wound 1 cm x 0.2 cm x skin deep on front of tip of left ring finger. Also blood oozing. Intervening tissues clean cut.

xi) Incised wound 3.75 cm x 0.25 cm x bone deep on ground of left middle finger, oblique 4.5 cm above base of finger. Intervening tissues clean cut. Blood oozing present.

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xii) Incised wound 4.5 cm x ½ cm x bone deep on front of left index finger. Oblique. Intervening tissues clean cut. Blood oozing present.

xiii) Incised wound 4 cm x 0.2 cm x bone deep on outer side of left hand, 2 cm above index finger, intervening tissues clean cut.

xiv) Incised wound 2 cm x 0.2 cm x skin deep – inner side left thumb, root, intervening tissues clean cut. Blood oozing present.

xv) Two lacerated wound each size 2 cm x ¾ cm x depth went to deeper tissue and ½ cm x ½ cm x depth went to deeper tissue, ½ cm apart from each other. Blood oozing. On right scapular region upper part, in area of 8 cm x 3 cm.

xvi) Abrasion 2 cm x 1 cm on right scapular region, 3.5 cm inner to injury No. (xv)

xvii) Abrasion 1.5 cm x 1 cm on outside of right shoulder

xviii) Abrasion 1.5 cm x 1 cm on back of right arm, 8 cm below armpit.

xix) Abrasion 1 cm x ½ cm on right side of chest on back side and below the hair of 4.5 cm 22

He has opined that all the injuries were fresh and injury

Nos. 1,2,3,5, 8 to 14 and 15 to 19, were kept under

observation and rest of the injuries were simple. He has

also testified that he examined Deep Narain at 9.15 a.m.

on the same day at the hospital and found lacerated

wound 1.25 cm x 0.5 cm x bone deep transverse over

right eye brow. Afterwards he has expressed opinion that

injury Nos.1 to 5 and 8 to 14 found on Sudarshan could

have been caused by sword.

17. In the trial, in examination-in-chief PW1 Bali Raj,

did not state anything about the injuries on

Sudarshan and Deep Narain. In the cross-

examination he has testified that Sudarshan Verma

and Deep Narain did not suffer any injury during the

occurrence and further stated that 16-17 days prior

to occurrence Sudarshan Verma suffered injuries in

a jeep accident. This testimony cannot be true for

the reason that Dr. Arora has examined him in the

hospital on the occurrence day and has found

injuries which were fresh on his body. PW2 Moti Lal 23

in his examination-in-chief did not state anything

about the injuries on the accused. In the cross-

examination he has stated that during the

occurrence accused Sudarshan Verma snatched the

axe from the hands of accused Jagdish and his hand

was injured during snatching process and an injury

was also caused near the eyes by the axe. He has

also stated that he did not see whether any injury

was caused to Deep Narain during the occurrence.

It is his further testimony that he is mentioning

above for the first time before the Court. It is

needless to say that no reliance can be placed on

such a testimony. In the same way PW3 Ram

Lakhan has not stated anything about the injuries of

the accused in his testimony-in-chief. In the cross-

examination he has stated that he did not see

accused Sudarshan suffering any injury during the

occurrence.

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18. In Babulal Bhagwan Khandare and another

vs. State of Maharashtra [(2005) 10 SCC 404]

this Court held:

“Non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance.”

The eye-witnesses who deny the presence of injuries on

the person of the accused are lying on most material

point, and therefore, their evidence is unreliable. It

assumes much greater importance where the evidence

consists of interested or inimical witnesses. In the

present case admittedly there was enmity between the

accused family and the deceased family and PWs 1 to 3

are interested as well as inimical witnesses and their

denial of injuries on the person of accused, makes their

evidence unreliable.

19. The situs of attack is also alleged to be not

established by the prosecution. In the First 25

Information Report the complainant PW3 Ram

Lakhan has stated that he and his sons were sitting

in their flour mill and were chatting at about 6.00

a.m. when the assailants came and attacked them.

In the testimony, PW1 Bali Raj has stated that they

were sitting in front of their house when the assault

took place. PW2 Moti Lal has testified that the

attack did not occur on flour mill but occurred in the

verandah of house of Prabhunath. PW3 Ram Lakhan

has testified that the place of occurrence is about

50 steps away from the flour mill. Thus there is

inconsistency about the place of occurrence in their

testimonies and a doubt creeps in. Though blood-

stained earth was claimed to have been seized from

the occurrence place by the Investigating Officer

PW7 Surender Singh, it was not sent for chemical

examination which could have fixed the situs of the

assault. In almost all criminal cases the blood-

stained earth found from the place of occurrence is

invariably sent to the chemical examination and the

report along with the earth is produced in the Court 26

and yet this is one exceptional case where this

procedure was departed from for reasons best

known to the prosecution.

20. We are of the considered view that the prosecution

has failed to prove the guilt of the appellants

beyond reasonable doubt, and therefore, they are

entitled to be acquitted.

21. In the result Criminal Appeal No.1881 of 2011 is

allowed and the conviction and sentence imposed

on appellant-Ganesh Datt are set aside and he is

acquitted of the charges and he is directed to be set

at liberty unless wanted in connection with any

other case. Criminal Appeal No. 1884 of 2011 in

respect of appellant Jagdish stands abated. As far

as other appellants namely, Sudarshan Verma,

Deep Narain and Rajendra are concerned, the said

appeal is allowed and the conviction and sentence

imposed on them are set aside and they are 27

acquitted of the charges and they are directed to be

set at liberty unless wanted in any other case.

……………………………J. (Jagdish Singh Khehar)

……………………………J. (C. Nagappan) New Delhi;

June 11, 2014