GANESH DATT Vs STATE OF UTTARAKHAND
Bench: JAGDISH SINGH KHEHAR,C. NAGAPPAN
Case number: Crl.A. No.-001881-001881 / 2011
Diary number: 7268 / 2011
Advocates: LAKSHMI RAMAN SINGH Vs
JATINDER KUMAR BHATIA
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REPORTABLE
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1881 of 2011
Ganesh Datt .. Appellant(s) versus
State of Uttarakhand .. Respondent(s) With
CRIMINAL APPEAL NO. 1884 OF 2011
J U D G M E N T C. NAGAPPAN, J.
1. Both the appeals are preferred against the judgment
and order dated 22.12.2010 passed by the High Court
of Uttarakhand at Nainital in Criminal Appeal No.927
of 2001.
2. The appellants 1 to 4 in Criminal Appeal No. 1884 of
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
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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
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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.”
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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
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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
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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.
15
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
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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
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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.
21
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.
24
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