The main legal point established in the judgment is the interpretation and application of the Indian Penal Code, specifically in determining the appropriate conviction and sentencing for the accused in a case of fatal assault.

Sudhanshu Dhulia, J. (Oral)

1. This appeal arises out of a judgment and order dated 17.6.2003 passed by the learned Sessions Judge, Chamoli in Sessions Trial No. 5 of 1998, by which trial court has convicted the present appellants, namely Hari Singh, Raje Singh, Gopal Singh and Autar Singh under Sections 302 and 323 read with Section 34 of Indian Penal Code, 1860 (from hereinafter referred to as IPC). Each one of the above four convicts has been sentenced to imprisonment for life under Section 302 read with Section 34 of IPC, six months rigorous imprisonment under Section 323 of IPC and fine of 5,000/- each, and default in payment of fine further rigorous imprisonment for six months.

2. Heard Mr. Dinesh Chauhan, Advocate for the appellants and Mr. Hari Om Bhakuni, Brief Holder for the State.

3. Brief facts of the case as per the First Information Report lodged on 22.11.1997 before Patwari, Brit Panti District Chamoli by the complainant Soban Singh, are that on 21.11.1997 when the complainant and his brother-in-law Gaje Singh (deceased) were going in the night at about 10.30 pm to answer the call of nature, the stones were thrown at them and thereafter accused-appellants, namely, Raje Singh, Hari Singh, Gopal Singh, Autar Singh and Kalam Singh attacked them with stones and “Danda” and as a consequent of which Gaje Singh fell down and complainant (Soban Singh) himself received injuries on his body. Gaje Singh, while being taken to the hospital next day passed away.

4. At this juncture, it must be stated here that this matter relates to the hills of Uttarakhand, where the “Patwari” who is the revenue officer is also empowered under the law with police powers. Therefore FIR was lodged with Patwari at Brit Panti who conducted the investigation and thereafter filed a charge-sheet. Consequently, the “Patwari” was informed about the incident which was in the night and, as it is reveled by witnesses later, the event is about 9.30 pm to 10.30 pm, Soban Singh as well as the other injured Gaje Singh (deceased) were brought to their house and subsequently on the next day Gaje Singh, who was seriously injured was being taken to the hospital passed away on his way to the hospital. The post mortem was conducted on the body of Gaje Singh (deceased) on 23.11.1997 at about 4 pm by Dr. Mayank Upadhyay (PW2). Apart from this, injured complainant (Soban Singh) was medically examined on 23.11.1997 by Dr. L. S. Singh (PW4). The post mortem report of the injured shall be discussed in the following paragraphs. The fact of the matter is that the Patwari was informed about the incident on 22.11.1997. He lodged an FIR on 23.11.1997 and thereafter prepares an inquest report. Consequently, after the investigation, he filed a charge-sheet before the Chief Judicial Magistrate, Chamoli, which is committed to the Sessions Judge, Chamoli on 9.2.1998 for trial. Thereafter charges were framed against the accused, namely, Raje Singh, Hari Singh, Gopal Singh, Autar Singh and Kalam Singh on 25.5.1999 under Sections 302 and 323 read with Sections 147 and 149 IPC. Later the case was committed to sessions for trial.

5. The prosecution in all examined seven witnesses. Apart from seven witnesses examined by the prosecution the court examined another four witnesses, which should be called as court witnesses no.1 to no.4. The first witness of prosecution was (PW1) Soban Singh, who was the complainant who is also an injured eye-witness to the incident. According to him, the deceased was the husband of his sister i.e. his brother-in-law. Both were staying in the same village. Only a day prior to the incident i.e. 20.11.1997 his daughter, who was aged about 2-2½ years, died and the comments of the accused persons, who were the neighbours, were that “Achha Hua Sale Ki Ladki Marr Gaii”. He further relates to the incident that on 21.11.1997 at about 10.30 pm, when he was going to answer the call of nature along with Gaje Singh (deceased) some people started throwi