RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No. 1495 of 2001 (Old No. 1143/1995) Pappu @ Sunder Lal & Another. .…. Appellants/Accused Versus State …………… Respondent December 31, 2009 Mr. S.K. Agarwal, Sr. Advocate, assisted by Mr. Ramji Srivastava, Advocate for the appellant no. 1. Mr. K.S. Bora, Advocate for the appellant no. 2. Mr. M.A. Khan, Brief Holder for the State/respondent. HON’BLE DHARAM VEER, J. This appeal, preferred by the appellants u/s 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.), is directed against the judgment and order dated 13.7.1995 passed by the 1st Additional Sessions Judge, Dehradun in Sessions Trial No. 41 of 1993, State v. Surendra & Ors., whereby the accused appellants Surendra and Pappu @ Sunder Lal have been convicted under Sections 308 read with Section 34 and Section 324 of Indian Penal Code, 1860 (for short, IPC) and sentenced each of them to undergo R.I. for three years u/s 308 read with Section 34 IPC and R.I. for two years u/s 324 IPC. It was further directed that both the sentences shall run concurrently. However, co-accused Gokul and Ghaseeta were acquitted of the charges levelled against them u/s 308 read with Section 34 and Section 324 read with Section 34 IPC. 2. In brief, the prosecution case is that on 11.12.1992 at 10.20 pm, an FIR was lodged by PW1 Vijay Kumar with PS Dalanwala, Dehradun with the averments that at 8 pm on that day i.e. 11.12.1992, accused appellant Surendra parked his bullock cart in front of the gate of PW2 Dharmpal Singh. When Dharmpal Singh asked him to shift the bullock car from there, then the accused appellants and the co-accused, viz., Gokul and Ghaseeta (acquitted by the trial court) started beating Dharmpal Singh, his wife Anandi Devi and younger brother Suresh (PW3) with lathi, dandas and knifes. On hearing the noise, Rishipal, Mahendra (PW4), the complainant himself and many other people of the Mohalla came at the place of occurrence and rescued them. Thereafter the complainant got all of them admitted to Doon Hospital. With the aforesaid averments, FIR Ex. Ka-1 was lodged by PW1 Vijay Kumar, the brother-in-law of the injured PW2 Dharmpal Singh stating the condition of Dharmpal Singh and his wife Anandi Devi as very serious and had they not been rescued on the spot, they would have certainly been killed by the accused appellants and the co-accused (acquitted by the trial court). The medical reports Ex. Ka-9 to Ka-11 of all the aforesaid three injured persons were also enclosed along with the FIR. 3. On the basis of the FIR Ex. Ka-1, chick FIR Ex. Ka-7 was prepared on the same day by Head Moharrir Karan Pal. Necessary entries were made by him in the GD. Copy of GD is Ex. Ka-8. The investigation of this case was entrusted to S.I. B.M. Singh, PW6. The injured Dharmpal Singh (PW2), Anandi Devi and Suresh (PW3) were medically examined by PW7 Dr. G.P. Singh on 11.12.1992 at 8.30 pm, 8.40 pm and 8.50 pm respectively and the medical reports Ex. Ka-9 to ka-11 respectively were prepared. During the course of investigation, the I.O. collected the bloodstained soil and plain soil from the place of occurrence and prepared the fard Ex. Ka-2. The I.O. also recovered the bloodstained clothes of the injured Dharmpal Singh, Anandi Devi and Suresh and prepared the fard Ex. Ka-3. During the course of investigation, the 2 I.O. also recovered the bloodstained knife on the pointing out of accused appellant no. 2 Surendra and prepared the fard Ex. Ka-4. The I.O. also inspected the place of occurrence and prepared the site plan Ex. Ka-5. The bloodstained knife, clothes and soil were sent to Forensic Laboratory, Agra for examination. The report of the Forensic Laboratory is Ex. Ka-12, wherein it has been reported that human blood was found on all the articles except on the plain soil. During the course of investigation, the I.O. recorded the statements of the witnesses and after completing the investigation, filed the chargesheet Ex. Ka-6 against the accused appellants Surendra & Pappu @ Sunder Lal and the co-accused Gokul & Ghaseeta (acquitted by the trial court). 4. Learned 1st Addl. Chief Judicial Magistrate, Dehradun after giving the necessary copies to the accused appellants and the co-accused as prescribed under Section 207 Cr.P.C., committed the case to the Court of Sessions on 30.3.1993. Learned Sessions Judge transferred the case to 1st Additional Sessions Judge, Dehradun for its disposal according to law. 5. On 20.4.1993, learned 1st Additional Sessions Judge, Dehradun framed the charges against the accused appellants and the co-accused (acquitted by the trial court) u/s 308 read with Section 34 IPC and u/s 324 read with Section 34 IPC. Accused appellants were also charged u/s 324 IPC. The charges were read over and explained to each of the accused appellants and the co-accused, who pleaded not guilty and claimed to be tried. 6. To prove its case, the prosecution has examined PW1 Vijay Kumar, the complainant; PW2 Dharmpal Singh; PW3 Suresh; PW4 Mahendra Singh; PW5 Dal Singh; PW6 S.I. 3 B.M. Singh, the I.O. of the case and PW7 Dr. G.P. Singh, who had medically examined all the three injured on 11.12.1992 and prepared the medical reports Ex. Ka-9 to Ka-11. 7. Thereafter, statements of the accused appellants and the co-accused were recorded under Section 313 of Cr.P.C. The oral and documentary evidence were put to each of them in question form, who denied the allegations made against them and stated that they have been falsely implicated in the case. In defence, medical examination report of co-accused Gokul (acquitted by the trial court) has been filed, which is Ex. Kha-1 and to prove the same, DW1 Dr. Anil Bhatnagar was examined. 8. After hearing learned counsel for the parties and after appreciating the evidence available on record, the learned 1st Additional Sessions Judge, Dehradun vide his judgment and order dated 13.7.1995 convicted and sentenced to the accused appellants as discussed above. Against the aforesaid judgment and order dated 13.7.1995, the accused appellants have preferred the present appeal. 9. I have heard learned Counsel for the parties and have carefully perused the entire material available on the record. 10. Before any further discussion, it would be pertinent to mention the injuries found on the body of the injured Dharmpal Singh (PW2), Anandi Devi and Suresh (PW3) as stated in the medical reports Ex. Ka-9 to Ka-11 and the same are reproduced as under: Injuries found on the body of PW2 Dharmpal Singh, who was medically examined by PW7 Dr. G.P. 4 Singh on 11.12.1992 at 8.30 pm and prepared the medical report Ex. Ka-9: “(1) Incised wound 3 cm x 1 cm x depth not probed on back of left thigh 7 cm below left hip. (2) Incised wound 2.5 cm x 1 cm x depth not probed on middle of hip (left). (3) Incised wound 3 cm x 1 cm x depth not probed on front of left thigh 9 cm above left knee. (4) Incised wound 6 cm x 1.5 cm x depth not probed on inner part of left thigh 8 cm above left knee. (5) Incised wound 2.5 cm x 1 cm x depth not probed middle of abdomen 7 cm above umbilicus. (6) Incised wound 3 cm x 1 cm x depth not probed left side chest 12 cm below nipple 5 O’clock position. Opinion : All injuries are kept under observation and advised X ray of left hip & left thigh & abdomen & chest. Injuries are caused by sharp edged object. Duration fresh.” Injuries found on the body of Anandi Devi, who was medically examined by PW7 Dr. G.P. Singh on 11.12.1992 at 8.40 pm and prepared the medical report Ex. Ka-10: “(1) Incised wound 2 cm x 1 cm x depth not probed on left side chest 9 cm below nipple 4 O’clock position. (2) Complain of pain right thumb of hand no exterior injury present. (3) Complain of pain on back No exterior injury present. Opinion : Injury kept under observation and advised X ray of chest & right thumb & back. Injury No. 1 caused by sharp edged object. Duration fresh.” Injuries found on the body of PW3 Suresh, who was medically examined by PW7 Dr. G.P. Singh on 11.12.1992 at 8.50 pm and prepared the medical report Ex. Ka-11: 5 “(1) Incised wound 1.5 cm x 1 cm x depth not probed on left side chest 3.5 cm below left nipple. (2) Incised wound 2 cm x 1 cm x depth not probed on lower part left axel. (3) Incised wound 1 cm x 0.5 cm x depth not probed on left scapula 5 cm below left shoulder. Opinion : Injuries are kept under observation. Advised X ray chest. Injuries are caused by sharp edged object. Duration fresh.” 11. To prove the aforesaid medical reports Ex. Ka-9 to Ka-11, the prosecution has examined PW7 Dr. G.P. Singh, who has proved the contents of the same. He was cross- examined at length, but he could not be shaken. 12. To further prove its case, the prosecution has examined PW1 Vijay Kumar, the complainant, who has reiterated the averments made by him in the FIR Ex. Ka-1. This witness has identified his signatures on fard recovery of bloodstained and plain soil, Ex. Ka-2, fard recovery of bloodstained clothes of the injured, Ex. Ka-3 and fard recovery of bloodstained knife Ex. Ka-4. He was cross- examined at length by the defence Counsel but he could not be shaken. 13. PW2 Dharmpal Singh, the injured witness has stated that at 8 pm on 11.12.1992, he was at his house. Accused appellant Surendra had parked his bullock cart in front of his house and when he asked him not to do so, the appellants accused and the co-accused Gokul and Ghasheeta (acquitted by the trial court) caught hold of him and started beating him and dragged him inside their house where he was assaulted with knifes. On hearing the noise, his wife Anandi Devi and brother Suresh (PW3) came there for his rescue. Then the appellants accused 6 and the co-accused also assaulted them with the knifes. On hearing the noise, Vijay Kumar (PW1), the complainant, Mahendra (PW4) and Rishipal came on the spot for their rescue. Tube light was on in the courtyard of the house of co-accused Gokul at the time of occurrence and he had identified the accused appellants and the co- accused in the said light. He has further stated that they were being taken to the hospital by Vijay Kumar (PW1) and Rishipal and also stated that had they been not reached at the place of occurrence for their rescue, the accused appellants and the co-accused, would have killed them. This witness has identified his pant, pullover and baniyan as material Ex. 1, 2 & 3 respectively. He has also identified the knife as material Ex. 4 and further stated that it was the same knife which the accused appellant Surendra had used in the said incident. Despite searching lengthy cross-examination, the defence Counsel has failed to elicit any material to shatter and discredit the testimony of this witness. 14. PW3 Suresh, an injured eyewitness, has corroborated the statements of PW1 Vijay Kumar and PW2 Dharmpal Singh. This witness has identified his bushirt and baniyan as material Ex. 5 & 6 respectively. This witness was also cross-examined at length by the defence Counsel, but he could not be shaken. 15. PW4 Mahendra Singh, an eyewitness, has stated that on 11.12.1992 at 8 pm, he reached at the place of occurrence on hearing the noise. He saw that the accused appellants Pappu and Surendra were armed with knifes while co-accused Gokul and Ghaseeta (acquitted by the trial court) were holding PW2 Dharmpal Singh and PW3 Suresh. Anandi Devi was lying down on the surface. The accused appellants assaulted Dharmpal Singh, Anandi 7 Devi and Suresh. Rishipal and Vijay (PW1) had also reached there. On seeing them, the accused appellants and the co-accused ran away from the place of occurrence towards the river. Thereafter the injured were admitted to the hospital by them. This witness has identified the accused appellants in the trial court. He also could not be shaken in his cross-examination. 16. PW5 Dal Singh has stated that his brother-in-law Dharmpal Singh was admitted to Doon Hospital. On 12.12.1992, he visited him at Doon Hospital. He has further stated that the bloodstained clothes of the injured Dharmpal Singh, Anandi Devi and Suresh were taken into possession by the I.O. on the same day between 11 to 12 pm and fard was prepared. He has further stated that on the same day, the I.O. had inspected the place of occurrence and collected bloodstained and plain soil from the spot and prepared the fard Ex. Ka-2. He has also stated that he was called by the I.O. in the evening on that day and accused appellant Surendra was also there. He has further stated that in front of him the accused appellant Surendra had handed over the knife to the I.O. and thereafter fard Ex. Ka-4 was prepared. This witness has denied the only suggestion given to him in his cross- examination that no recovery of soil, knife and clothes were made in front of him. 17. PW6 B.M. Singh has stated that he was posted as S.I. in PS Dalanwala in December, 1992. The investigation of this case was entrusted to him. He has stated that chick FIR Ex. Ka-7 was prepared by Head Moharrir Karan Pal, who had also made the necessary entries in the GD and copy of GD is Ex. Ka-8. He has further stated that in the night of 11.12.1992, he went to the hospital and recorded the statements of injured Dharmapal Singh, 8 Anandi Devi and Suresh. He took into possession the bloodstained clothes of the injured and prepared the fard Ex. Ka-3. He inspected the place of occurrence and collected the bloodstained and plain soil from the spot and prepared the fard Ex. Ka-2. He has further stated that bloodstained knife was recovered on the pointing out of accused appellant Surendra and fard Ex. Ka-4 was prepared. During the course of investigation, he inspected the place of occurrence and prepared the site plan Ex. Ka- 5. During the course of investigation, he recorded the statements of the witnesses and after completion of the investigation, he filed the chargesheet Ex. Ka-6 against the accused appellants and the co-accused (acquitted by the trial court). 18. Thereafter, statements of the accused appellants and the co-accused were recorded under Section 313 of Cr.P.C. The oral and documentary evidence were put to each of them in question form, who denied the allegations made against them and stated that they have been falsely implicated in the case. In defence, medical examination report of co-accused Gokul (acquitted by the trial court) has been filed, which is Ex. Kha-1 and to prove the same, DW1 Dr. Anil Bhatnagar was examined. 19. DW1 Dr. Anil Bhatnagar has stated that on 14.12.1992, he was posted as Medical Officer in District Jail, Dehradun. On that day, he had examined co-accused Gokul (acquitted by the trial court) at 11.10 am and two injuries were found on his body and same was recorded in the medical report Ex. Kha-1. Injury no. (1) was a bruise mark on the wrist 1 cm x 1 cm. Injury no. (2) was a lacerated wound 2 cm x 1 cm, skin deep at the lower 1/3rd of left leg and blood clot was present. He has further stated the said injuries could have possibly been caused 9 in the night of 11.12.1992 and injury no. (2) could be caused by hard and blunt object. 20. Learned Counsels for the accused appellants argued that on the basis of the evidence discussed above, the prosecution has not proved the case against the accused appellants beyond reasonable doubt. I do not find any substance in the argument of the learned Counsel for the accused appellants due to the following reasons: (i) That PW2 Dharmpal Singh, the injured witness has stated that at 8 pm on 11.12.1992, he was at his house. Accused appellant Surendra had parked his bullock cart in front of his house and when he asked him not to do so, the appellants accused and the co-accused Gokul and Ghasheeta (acquitted by the trial court) caught hold of him and started beating him and dragged him inside their house where he was assaulted with knifes. On hearing the noise, his wife Anandi Devi and brother Suresh (PW3) came there for his rescue. Then the appellants accused and the co-accused also assaulted them with the knifes. On hearing the noise, Vijay Kumar (PW1), the complainant, Mahendra (PW4) and Rishipal came on the spot for their rescue. Tube light was on in the courtyard of the house of co-accused Gokul at the time of occurrence and he had identified the accused appellants and the co-accused in the said light. He has further stated that they were being taken to the hospital by Vijay Kumar (PW1) and Rishipal and also stated that had they been not reached at the place of occurrence for their rescue, the accused appellants and the co- accused, would have killed them. 10 (ii) That PW1 Vijay Kumar, the complainant, PW3 Suresh, also an injured eyewitness and PW4 Mahendra Singh, an eyewitness have also narrated the incident in detail and they have corroborated the statement of PW2 Dharmpal Singh. They were cross-examined at length, but despite searching lengthy cross-examination, the defence Counsel has failed to elicit any material to shatter and discredit their testimony. (iii) That the statements of all the witnesses examined by the prosecution are reliable and believable and the same inspire the confidence. (iv) That the presence of PW1 Vijay Kumar and PW4 Mahendra Singh at the place of occurrence was natural as they were residing in the neighbourhood. (v) That the incident is said to have taken place at 8 pm on 11.12.1992 and the FIR of this incident was lodged on the same day at 10.20 pm and the distance of the Dalanwala police station from the place of occurrence is 2 km. All the injured were immediately got admitted to the hospital and were medically examined on the same day between 8.30 pm to 8.50 pm. Hence, FIR is prompt and there is no delay in lodging the same. (vi) That all the injuries found on the person of the aforesaid three injured were found to be fresh and the same were inflicted on the vital parts of their body. Injuries were dangerous to the life of the injured persons as has been stated by PW7 Dr. G.P. Singh, who had medically examined the injured. 11 (vii) That the knife used in the commission of crime was recovered on the pointing out of accused appellant Surendra in the present of PW5 Dal Singh. (viii) That in the report of the Forensic Laboratory Ex. Ka-12, it has been stated that human blood was found on all the articles i.e. bloodstained clothes, bloodstained knife & bloodstained soil. (ix) That undisputedly the incident has not been denied by the either parties. It is only the manner in which it took place has been challenged. But from the evidence of eyewitnesses read with the medical reports and recovery of knife on the pointing out of accused appellant Surendra, I agree with the trial court that the prosecution has proved the charge levelled against the accused appellants. (x) That co-accused Gokul had surrendered before the trial court on 14.12.1992, three days after the said incident and he was medically examined on 14.12.1992 by DW1 Dr. Anil Bhatnagar, who has stated that the injuries of Gokul might be possibly suffered by him at about 10-11 am on 11.12.1992 and the lacerated wound found on his body could be caused by collision with a hard object during the course of running. As such, the injuries found on his body cannot be said to be suffered by him in the same incident. 21. For the reasons as discussed above, it is proved beyond doubt that the accused appellants Surendra and Pappu @ Sunder Lal had assaulted PW2 Dharmpal Singh, his wife Anandi Devi and his younger brother PW3 Suresh on 11th December, 1992 at 8 pm and injured them. Thus, 12 the case against the accused appellants stands proved. I agree with the view taken by the trial court and do not find any illegality or infirmity with the findings recorded by the trial court and the impugned judgment and order dated 13.7.1995 is correct and justified. 22. In view of my above discussion and conclusion, the prosecution has proved the case against the accused appellants beyond reasonable doubt and I do not find any reason to interfere with the conviction and sentence recorded by the trial court. 23. Resultantly, the appeal being devoid of merit is hereby dismissed. The judgment and order dated 13.7.1995 passed by the 1st Additional Sessions Judge, Dehradun in Sessions Trail No. 41/1993, State v. Surendra & Ors. convicting the accused appellants Surendra and Pappu @ Sunder Lal under Sections 308 read with Section 34 and Section 324 IPC and sentence awarded to each of them to undergo R.I. for three years u/ s 308 read with Section 34 IPC and R.I. for two years u/s 324 IPC, directed to be run concurrently, is hereby upheld. The accused appellants Surendra and Pappu @ Sunder Lal are on bail. Their bail bonds are cancelled. Let they be taken into custody to serve out the sentence. 24. Copy of this order be sent to the trial court forthwith for its compliance. Let the lower court record be sent back. (Dharam Veer, J.) 31.12.2009 PRABODH 13