1 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 122 of 2001 (Old No. 2960 of 1999) 1. Harnam Singh 2. Gurmeet Singh (since deceased) Both S/o Lahana Singh R/o Tumariya Dam, Police Station Ram Nagar District Nainital …..…Appellants Versus State of U.P. (now Uttarakhand) ……….Opposite Party Mr. A.S. Gill, Advocate, present for the appellant. Mrs. Mamta Bisht, A.G.A., present for the State. Hon'ble Prafulla C. Pant, J. This appeal is directed against the judgment and order dated 01.11.1999, passed by III Additional Sessions Judge, Nainital, in Sessions Trial No. 107 of 1994, whereby said court has convicted the appellants under section 304 part II of I.P.C., and sentenced each one of them to rigorous imprisonment for a period of seven years. 2 2. Heard learned counsel for the parties, and perused the lower court record. 3. Prosecution story in brief is that Pokhar Singh (S/o Harnam Singh) got married to Meeta Kaur [sister of Gurdeep Singh (deceased)]. After sometime the relations between parties to matrimony got soured. Meeta Kaur started living in her parental house. Distance between the two houses is said to be one kilometer (as mentioned in the statement of P.W. 1 Sona Singh). On 26.11.1993, at about 5:00 p.m., as disclosed in the First Information Report (Ex. A1) lodged by the complainant P.W.1 Sona Singh (uncle of Meeta Kaur), he alongwith his nephew Gurdeep Singh (deceased) and Lal Singh (not examined) was passing through near the house of appellant Harnam Singh, they were attacked by Charan Singh, Kulwant Singh (both acquitted by the trial court) and Gurmeet Singh (since died) with PATAL (heavy sharp edged weapons). Accused/appellant Harnam Singh said to have fired shot from country made pistol. Gurdeep Singh died of the incised injury suffered by him on his head in the incident. 3 4. A cross case of the incident was got lodged by Harnam Singh (present appellant) against Sona Singh (examined as P.W. 1 in this case), Resham Sing (examined as P.W. 2 in this case), one Kundan Singh and Gurdeep Singh. Both the cross cases which were registered as crime no. 418 of 1993, and crime no. 419 of 1993, at Police Station Ramnagar, were investigated by the Investigating Officer P.W. 6 Sub-Inspector Rajendra Singh and charge sheets were filed against both the sides of the accused. In the trial relating to present appellant Gurmeet Singh, Charan Singh and Kulwant Singh were co- accused with him. And in the cross trial Sona Singh, Resham Singh and Kundan Singh were the accused. The charge sheet against the appellant and others was filed in respect of offence punishable under section 302/34 IPC, and charge sheet against Sona Singh and others was filed in respect of offences punishable under section 323/34 and 324/34 IPC. Sessions Trial No. 107 of 1994 was registered in respect of the case committed against the appellant and others. Session Trial No. 609 of 1995, was registered after committal of case against Sona Singh and others. Both the cases were tried together. The trial court after recording 4 evidence and hearing the parties found that Harman Singh and Gurmeet Singh were guilty of charge of offence punishable under section 304 part II of IPC. However, no offence is said to have been proved against Sona Singh, Charan Singh and Kulwant Singh and they were acquitted of the charge. Also, in the cross cases no offence is held proved against accused Sona Singh, Resham Singh, Kundan Singh and they were acquitted of the charge of offences punishable under section 323/34 and 324/34 IPC. Aggrieved by said judgment and order dated 01.11.1999, passed by III Additional Sessions Judge, Nainital, this appeal was preferred by the convicts Harnam Singh and Gurmeet Singh, but Gurmeet Singh has died during the pendency of the appeal and his appeal stood abated. 5. For the trial of the cross-cases of same incident one of the important factors which is required to be seen by the court is as to which of the parties was the aggressor. Learned counsel for the appellant drew attention of this Court to the fact that incident has taken place near the house of the present appellant as such aggressors were Sona Singh (P.W.1), Resham Singh and Kundan Singh, 5 not the vice-versa. From the statement of P.W. 1 Sona Singh and P.W. 2 Resham Singh it is evident that incident has taken place near the house of Harnam Singh. It is pertinent to mention here that both appellants Harnam Singh and Gurmeet Singh have suffered injuries in the incident. Had their injuries been superficial it could have been said that they had no right to cause death of Gurdeep Singh in self defence. The injuries of Harnam Singh and Gurmeet Singh proved on the record are being reproduced below:- Injuries of Harnam Singh recorded on 27.11.1993 at 12:30 p.m.:- (i) 2cm X .5cm incised wound over bridge of nose, brownish scab formation. No bleeding seen. Wound is skin deep. (ii) 6cm X 1cm imprint contusion reddish in colour present over upper back on right side. Injuries of Gurmeet Singh recorded on 27.11.1993, at 12:45 p.m.:- (i) 7cm X (105 anterior and 3cm posterior) X bone deep incised wound profuse bleeding present over scalp on right side, placed obliquely anteo posteriorly considerable 6 amount of blood clots, brownish sen around the wound. Advised x-ray. (ii) 3cm long through and through incised wound present over left ear pinna. (iii) 12cm X 1.5 cm imprint contusion reddish in colour present over back on right upper side. (iv) 1cm X 05cm wedge shaped incised wound, present over left middle of the back 5cm outer to midline, brownish scale formation seen. (v) Multiple imprint and bizarre contusion present over back varying from 3cm to 6.5cm long and 05cm X 2.0 cm broad. (vi) 2.0cm X 1.5 cm abraded contusion reddish present over skin of left leg. (vii) 1.0cm X . 5cm abraded contusion reddish present over skin of left leg. 6. The above injuries particularly found on the person of Gurmeet Singh cannot be said to be self defence injuries. Considering such injuries read with fact that the incident has taken place near the house of Harnam Singh, the possibility cannot be ruled out that P.W.1 Sona Singh , P.W. 2 7 Resham Singh alongwith Kundan Singh were aggressors. In this connection, it is relevant to mention that had Sona Singh (P.W.1) Resham Singh (P.W.2) were coming from Kashipur and simply passing through near the house of Harnam Singh they would not have been armed with PATAL (heavy sharp edged weapon) and incised wounds would not have been suffered by Gurmeet Singh. If the above evidence of record is considered it is quite possible that Harnam Singh and others acted in self defence. 7. It is also argued on behalf of the appellant before this Court that Harnam Singh is said to have fired shots, and fire armed injury found on the person of the deceased only on the legs as such he had no intention to kill Gurdeep Singh. Attention of this Court is drawn to the post-mortem report (Ex. A11) in which it is mentioned that deceased had died of head injury. From the post-mortem report it is clear that deceased has suffered incised wound on the head regarding which role is assigned to co-accused Charan Singh, Kulwant Singh and Gurmeet Singh armed with PATALS. However, the above argument is of no help to the 8 appellant as the person participating in the crime can be held guilty read with section 34 IPC in connection with the act committed by the co- accused. 8. For the reasons as discussed above, in view of the fact that Gurmeet Singh (brother of the appellant Harnam Singh) suffered incised wounds which could have been caused with PATALS, and injuries were suffered from both the sides, and the incident has taken near the house of Harnam Singh it cannot be ruled out that Sona Singh, Resham Singh, Kundan Singh might have been aggressors, and accused/appellant has a right of self defence. As such, he cannot be held guilty of charge of offence punishable under section 304 part II of IPC, particularly when the injury allegedly caused by appellant Harnam Singh was not the cause of the death of Gurdeep Singh (deceased). 9. Therefore, the appeal is allowed. The impugned judgment and order dated 01.11.1999, passed by the III Additional Sessions Judge, in Sessions Trial No. 107 of 1994, against the present appellant Harnam Singh is set aside. He is 9 acquitted of the charge of offence punishable under section 304 part II of IPC on which he has been convicted by the trial court. He is on bail. He need not to surrender. Appeal of Gurmeet Singh already stands abated. The trial court record be sent back. (Prafulla C. Pant, J.) Parul 14.11.2011