RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.374 OF 2001 (OLD NO.2763 OF 1999) 1. Anand Bihari S/o Rewasri Singh 2. Ram Naresh Singh S/o Anand Bihari Singh Both R/o Village Kanholi, Siddhartha Nagar, Presently resident of D.D.C. Colony Havvi, P.S. Lalkuwan, District Nainital ……… Appellants Versus State of Uttarakhand .……… Respondent Dated: September 22, 2010 Mr. Lokendra Dobhal, Advocate for the appellants Mr. Prabhakar Joshi, Brief Holder for the State HON. DHARAM VEER, J. This appeal, preferred by the appellants u/s 374(2) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 28.10.1999 passed by Special Judge/Additional Sessions Judge, Nainital in S.T. No.602/1996, State v. Anand Bihari and another, whereby the learned Addl. Sessions Judge convicted the appellants-accused Anand Bihari and Ram Naresh under Section 304 II of the Indian Penal Code, 1860 (hereinafter to be referred as IPC) and sentenced them to undergo rigorous imprisonment for a period of five years with a fine of Rs.2,000/- and in default of payment of fine, two months’ simple imprisonment was further awarded to them. Appellant-accused Ram Naresh was further convicted under Section 323 of IPC and was sentenced to one year’s R.I. Both the 2 sentences of appellant-accused Ram Naresh were directed to run concurrently. 2. Heard learned counsel for the parties and perused the entire material on record. 3. In brief, the prosecution case is that Bal Mukund Maurya lodged a First Information Report at Police Station Rudrapur, District Udham Singh Nagar stating therein that he and the appellant-accused Anand Bihari were working in the same department. One month back, the complainant had asked for a sum of Rs.200/- on credit from the appellant-accused Anand Bihari and the appellant-accused Anand Bihari had also assured to give the same to him. But when the complainant was in need of money, appellant- accused Anand Bihari refused to give money to him. On 5.4.1996, the complainant was going to his house after taking certain articles from Haldi Bazar. Appellant-accused Ram Naresh was also with the complainant, who asked him that why he is getting annoyed with his father (appellant-accused Anand Bihari) for the money. The complainant tried to make him understand but all were in vain and, at 8:15 PM, appellant-accused Ram Naresh caused injury on his eye by his fists due to which he received several injuries. Thereafter, he reached his house and on seeing the injuries of complainant, his son, Nirankar Maurya, went to the house of appellant-accused Anand Bihari to complain about the above-said incident, but on the way, appellants-accused Anand Bihari and Ram Naresh surrounded him and beaten him with kicks and fists. His son received a number of injuries. In the night, his another son Niranjan Maurya and Chandra 3 Kishore took his son Nirankar to Government Hospital, Rudrapur where he succumbed to his injuries. It is further stated that the said incident was witnessed by Satish Sachan, Arun Kumar and Chandra Kishore, who also tried to save his son from the clutches of the appellants-accused. With the same averments, Bal Mukund Maurya lodged the First Information Report at P.S. Rudrapur, District Udham Singh on 6.4.1996 at 9:30 AM, which is Ext.Ka-1. On the basis of this FIR, Chik FIR of the case was prepared by Head Constable Om Veer Singh, i.e. Ext.Ka-7. Necessary entries were also made in the G.D., carbon copy of which is Ext.Ka-8. The investigation of this case was entrusted to PW5 Sub Inspector Som Veer Singh. On 6.4.1996 at 10 AM, injured Bal Mukund Maurya was medically examined by PW3 Dr. Prabhakar Singh, who after the medical examination, prepared the injury report, i.e. Ext.Ka-3. Inquest report of the dead body of deceased Nirankar Maurya was prepared, i.e. Ext.Ka-2. Thereafter, the dead body was sent for post-mortem examination. On 6.4.1996 at 4:15 PM, post-mortem of the dead body of deceased was conducted by PW4 Dr. Arvind Kumar Agarwal, who prepared the post-mortem report, i.e. Ext.Ka-4. During the course of investigation, the I.O. recorded the statement of witnesses, inspected the place of occurrence and prepared the site-plan, i.e. Ext.Ka-5 and on completion of investigation, he filed the charge sheet against the appellants-accused, i.e. Ext.Ka-6. 4. After receiving the charge sheet, learned Judicial Magistrate, Haldwani committed the case to the court of Sessions on 27.11.1996, after giving necessary copies to the appellants-accused as prescribed u/s 207 Cr.P.C. It transpires from record 4 that the case was transferred to Additional Sessions Judge for hearing and disposal according to law. 5. On 7.4.1997, learned Additional Sessions Judge, Nainital framed the charge of offence punishable under Section 304 Part I of IPC against the appellants-accused. The charge was read over and explained to the appellants-accused, who pleaded not guilty and claimed to be tried. 6. In order to prove its case, the prosecution has examined PW1 Bal Mukund Maurya, injured witness and complainant of the case, PW2 Niranjan Maurya, eyewitness, PW3 Dr. Prabhakar Singh, who medically examined the injuries on the person of Bal Mukund Maurya, PW4 Dr. Arvind Kumar Agarwal, who conducted post-mortem of the body of deceased Nirankar Maurya and PW5 Somvir Singh, I.O. of the case. 7. Thereafter the statements of the appellants- accused were recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to each of them in question form, who denied the allegations made against them. However, they have not produced any oral or documentary evidence, in defence. 8. After appreciating the entire evidence on record and hearing learned counsel for the parties, learned Addl. Sessions Judge, Nainital vide his judgment and order dated 28.10.1999 convicted and sentenced the appellants-accused as mentioned above. Against the said judgment and order, the appellants- accused have preferred the present appeal. 5 9. Before any further discussion, it would be pertinent to mention the injury report of PW1 Bal Mukund Maurya, which is reproduced as under:- i) A contusion 7 cm x 5 cm over eye ball 0.5 cm below left eyebrow colour violet and red. ii) Multiple abrasion 3.5 cm x 2 cm over left side eye brow over lateral end of left eye brow colour red, blood clot present. iii) A contusion 6 cm x 3 cm over right side eye ball, 2 cm below medial end of right eye brow colour violet red. iv) Complaining of pain 6 cm x 4.5 cm over left side chest, 3.5 cm above right nipple, skin colour normal, no evidence of external injury seen, injury kept under observation. v) Red colouration of eye 3.5 cm x 2 cm, no hemorrhage seen, watery discharge from eye present, no other sign seen, kept under observation. Opinion:- All injuries except injury no.4 and 5 are simple in nature, caused by some blunt object. Duration more than 12 hours, before 24 hours, injury no.4 and 5 kept under observation. 10. To prove the above-noted injury report, the prosecution has examined PW3 Dr. Prabhakar Singh, who was posted as Medical Officer at Government Hospital, Haldi, District Udham Singh on 6.4.1996. On that day at 10 AM, he medically examined the injuries on the person of Bal Mukund Maurya and prepared the injury report Ext.Ka-3. He has proved the injury report 6 Ext.Ka-3. He opined that the above injuries could be caused on 5.4.1996 at 8:15 PM. 11. Post-mortem report of deceased is also relevant to explain here, which reads as under:- Ribs – Fracture of 3rd and 4th rib on left side on anterior aspect. Heart – A punctured wound of 1 cm x 0.2 cm broad, communication with left chamber of heart (left verticle). Both chambers empty. Cause of death – Cause of death is ante mortem injuries leading to hemorrhage and shock. 12. To prove the post-mortem report, the prosecution has examined PW4 Dr. Arvind Agarwal, who has stated that on 6.4.1996 at 4:15 PM, he conducted the post-mortem of the dead body of deceased Nirankar Maurya. In internal examination of the dead body, he found fracture of 3 rd and 4 th rib on left side on anterior aspect. Blood was present in thoracic cavity. About 150 ml blood was present in pericardial cavity. There was a broad punctured wound of 1 cm x 0.2 cm communicating with left chamber of heart (left verticle). Both the chambers were empty. He opined that cause of death was ante-mortem injuries leading to hemorrhage and shock. Time of death was between 6 to 24 hours. He has proved the post-mortem report Ext.Ka-4. He further stated that the ante- mortem injuries could be caused on 5.4.1996 at 8:15 PM and death was possible due to these injuries. He opined that these injuries were possible to come by 7 kicks and fists and, as a result of same, ribs can be fractured. He further stated that because of these internal injuries, death is possible. 13. To prove its case further, the prosecution has examined PW1 Bal Mukund Maurya, who has stated that on 5.4.1996, while he was coming back from Haldi Market, appellant-accused Ram Naresh came and started quarreling with him. He tried to make him understand but the appellant-accused got annoyed and caused injury on his eye with his fists. After this incident, he went to his house where his sons Niranjan Maurya and Nirankar Maurya asked him about the injuries. On being told, his son Nirankar went to enquire from the appellant-accused Ram Naresh and behind him, he and his second son Niranjan Maurya also proceeded behind Nirankar. From a distance of 10-12 yards, he and his son Niranjan saw that the appellants-accused were beating his son Nirankar with kicks and fists. There was light at the place of occurrence. On seeing them, the appellants-accused fled from the place of occurrence. Thereafter, he and his son, with the help of other people, took his son Nirankar Maurya to Government Hospital, Rudrapur, where his son was declared dead. Due to fear, he and his son remained in the hospital in the night and, in the morning he lodged the report in the police chowki. He has proved the report Ext.Ka-1. 14. PW2 Niranjan Maurya is the eyewitness of the case. He has corroborated the statement of PW1 Bal Mukund Arya. 8 15. PW5 Somveer Singh is the Investigating Officer of the case. During the course of investigation, he recorded the statement of witnesses, inspected the place of occurrence and prepared the site-plan Ext.Ka- 5, prepared the inquest report of the deceased and on completion of investigation, he filed the charge sheet Ext.Ka-6 against the appellants-accused. He has also proved the Chik FIR Ext.Ka-7 and G.D. entry Ext.Ka-8 prepared by Head Constable Omveer Singh. 16. Thereafter the statements of the appellants- accused were recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to each of them in question form, who denied the allegations made against them. However, they have not produced any oral or documentary evidence, in defence. 17. Learned counsel for the appellants-accused argued that the prosecution has not been able to prove its case against the appellants-accused beyond reasonable doubt. I do not find force in the argument put forth by learned counsel for the appellants-accused for the reason that PW1 Bal Mukund Maurya has specifically stated in his statement that on 5.4.1996, while he was coming back from Haldi Market, appellant-accused Ram Naresh came and started quarreling with him. He tried to make the appellant- accused Ram Naresh understand but he got annoyed and caused injury on his eye with his fists. After this incident, he went to his house where his sons Niranjan Maurya and Nirankar Maurya asked him about the injuries. On being told, his son Nirankar went to enquire from the appellant-accused Ram Naresh and, 9 behind him, he and his second son Niranjan Maurya also proceeded behind Nirankar. From a distance of 10-12 yards, he and his son Niranjan saw that the appellants-accused were beating his son Nirankar with kicks and fists. There was light at the place of occurrence. On seeing them, the appellants-accused fled from the place of occurrence. Thereafter, he and his son, with the help of other people, took his son Nirankar Maurya to Government Hospital, Rudrapur, where his son was declared dead. Due to fear, he and his son remained in the hospital in the night and, in the morning he lodged the report of the said incident. The evidence of this witness is reliable, believable and natural and inspires confidence and the same also gets full corroboration from the oral evidence of P.W.2 Niranjan Maurya, who have fully supported the prosecution case in his statement. Apart from above, the evidence of P.W.1 Bal Mukund Maurya further gets full corroboration from the medical evidence of PW3 Dr. Prabhakar Singh and PW4 Dr. Arvind Kumar Agarwal as well as from the injury report Ext.Ka-3 and post- mortem report Ext.Ka-4. P.W.3 Dr. Prabhakar Singh, Medical Officer, who medically examined the injuries on the person of PW1 Bal Mukund Maurya has opined that the injuries could possibly be caused on 5.4.1996 at 8:15 PM. Further, PW4 Dr. Arvind Agarwal, Medical Officer, who conducted the post-mortem on the dead body of deceased Nirankar Maurya found fracture of 3 rd and 4 th rib on left side on anterior aspect. Blood was present in thoracic cavity. About 150 ml blood was present in pericardial cavity. There was a broad punctured wound of 1 cm x 0.2 cm which was communicating with left chamber of heart (left verticle). Both the chambers were empty. He opined that cause 10 of death was ante-mortem injuries leading to hemorrhage and shock. Time of death was between 6 to 24 hours. He further stated that the ante-mortem injuries could be caused on 5.4.1996 at 8:15 PM and death was possible due to these injuries. He also opined that these injuries were possible to come by kicks and fists and, as a result of same, ribs can be fractured. He further stated that because of these internal injuries, death is possible. All these facts and circumstances give full support and, therefore, wholly corroborate the statement of injured and complainant P.W.1 Bal Mukund Maurya. Thus, as per the above- said discussion, it is proved that on 5.4.1996 at about 8:15 PM, appellants-accused Ram Naresh caused injury on the eye of complainant Bal Mukund Maurya by his fists and thereafter when the son of complainant, namely, Nirankar Maurya (deceased) went to complain about the same to the appellants- accused, both the appellants-accused surrounded him and beaten him with kicks and fists due to which he succumbed to his injuries. In view of the aforesaid discussion, the prosecution has successfully proved its case against the appellants-accused beyond reasonable doubt under the aforesaid sections and the trial court has rightly convicted and sentenced the appellants- accused as above discussed and I also concur the view taken by the trial court. 18. For the foregoing reason, the appeal lacks merit and is hereby dismissed. The judgment and order dated 28.10.1999 passed by Special Judge/Additional Sessions Judge, Nainital in S.T. No.602/1996, convicting and sentencing the appellants-accused, 11 needs no interference by this Court and is hereby made affirmed. Appellants-accused are on bail. Their bail is cancelled. Let them be taken into custody to serve out the sentence as awarded against him. 19. A copy of this judgment along with the record be sent to the trial court concerned for compliance of the order forthwith. (Dharam Veer, J.) 22.9.2010 RG