IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. Criminal Appeal No. 1933/2001 (Old No. 2202/1998) Jagdish Singh Rautela @ Jaggi ….. Appellant. Vs. State … Respondent. Sri R.P. Nautiyal, and Sri P.C. Maulekhi, learned counsel for the appellant. Sri S.S. Adhikari, learned A.G.A. for the State. Coram: Hon’ble B.C. Kandpal, J. Hon’ble Nirmal Yadav, J. [Per: B.C. Kandpal, J.] This criminal appeal, arises out against the judgment and order dated 17.9.1998, passed by Sessions Judge, Pithoragarh, in Sessions Trial No. 10/1992, State vs. Jagdish Singh, convicting the accused/appellant Jagdish Singh under Section 302 I.P.C. and 307 I.P.C. and sentencing him to undergo imprisonment for life U/S 302 I.P.C. and five years R.I. U/S 307 I.P.C. Both the sentences were to run concurrently. 2- Brief facts of the case, as emerged out from the record, are that Km. Kusum Mehta, aged about 13 years, daughter of informant Laxman Singh Mehta, was a student of class-10th in G.G.I.C. Champawat, in the year 1991. Accused Jagdish Singh used to tease her on way to school and house and used to tell impolite words. On 13.10.1991, when Km. Kusum Mehta was returning from school at about 4.00 p.m., Jagdish Singh again teased her on the way and used indecent words. Km. Kusum complained about it to her brother Ashok Mehta, who told her that he would talk to Jagdish. Then Ashok Mehta went to play cricket in the field in Guralchaur. When Ashok Mehta was 2 coming with his friends, Jagat Singh and Shamsher Singh, towards Malli Bazar, Jagdish met them there on the way. Ashok Mehta reprimanded Jagdish Singh as to why he teases and misbehaves with his sister and taunted that he also has mother and sisters and all of them have respect. At this Jagdish Singh became angry and hurled abuses on Ashok Mehta and took out a knife and threatened to finish him. Accused Jagdish gave a knife blow to Ashok which struck on his right shoulder. After sustaining knife blow, Ashok fell down in the field and shouted for help. In the mean time accused Jagdish also gave a couple of more knife blows to him at his thigh and leg. Shamsher Singh and Jagat Singh tried to stop Jagdish, whereupon Jagdish Singh injured Shamsher Singh also on his abdomen with the knife. Thereafter accused Jagdish escaped from the place of occurrence along with his knife. This occurrence took place at about 6.00 p.m. on 30.10.1991. Jagat Singh gave the information to Laxman Singh at his house. Laxman Singh went to hospital and found Ashok Mehta unconscious there. Thereafter he lodged the report, Ext. Ka.1, at P.S. Lohaghat on 30.10.1991 at 9.20.p.m. On the basis of written report, the police prepared chick F.I.R. Ext. Ka.5, and registered a case U/S 307 I.P.C. against the accused vide G.D. Report No. 39, carbon copy of which is Ext. Ka.6. 3- The investigation was taken up by S.I. V.K. Nautiyal, who recorded the statement of the informant and found Ashok Mehta unconscious in the hospital. He went in search of the accused but he was absconding. Upon receipt of information regarding the death of Ashok Mehta, he converted the case U/Ss 302/324 I.P.C. He prepared inquest report Ext. Ka.7. 3 He visited the place of occurrence and prepared site plan, Ext. Ka.10. He also seized the plain and blood- stained earth from the place of occurrence vide memo Ext. Ka.11. The I.O. also took into possession the wearing clothes of injured Shamsher Singh vide memo Ext. Ka.12. The I.O. also completed the formalities before sending the dead body for post mortem, like sketch dead body, Ext. Ka.8, Police Form No.13, Ext. Ka.9. Thereafter the investigation was transferred to S.O. Chandra Mohan Singh Rawat. On 11.11.1991, he took into possession the knife, used by the accused in the occurrence, at the instance of the accused and prepared recovery memo, Ext. Ka.13. He also prepared site plan, Ext. Ka. 14, of the place where the knife was got recovered. 4- When Ashok Mehta, was admitted in the hospital, at 7.30p.m. on the day of occurrence, he was medically examined by Dr. P.K. Karnataka, in P.H.C. Champawat and he found the following injuries on his person- 1. Incised wound 2cm x 1cm x right over clevical and supra clavicular region, 6 cm above mid clavicular point, bleeding fresh, depth can be ascertained by x-ray. 2. Incised wound at right lower thigh 7cm x3cm x medial aspect of lower thigh, 5cm above the lower border of right medial femoral epicondyle, wound was extending obliquely upwards bleeding extensively. Bleeding is arterial in nature, muscles are cut sharply, multiple vessels and nerves are cut sharply, cut arterial end is proximally retracted. 4 3. Lacerated wound 1cm x .5cm left lower lip bleeding freshly, 1cm from mid lower muscle deep. 4. Lacerated wound .5cm x .5cm over left shoulder muscle deep, bleeding freshly. The doctor has proved the injury report, Ext. Ka.2. In his opinion injury no.2 was grievous in nature and the patient was comatosed, pulse-less and pupils were dilated and exhibited signs of massive haemorrhage. In his opinion injury no.2 was caused by sharp edged weapon. 5- After the death of Ashok Mehta, Dr. P.K. Karnataka also conducted autopsy on the dead body on 31.10.1991 at 12.10p.m. According to him injuries nos. 1 and 2 mentioned in the injury report, were found stitched and the injury on the thigh was measuring 13cm. According to him the cause of death was due to massive haemorrhage and shock as a result of the injuries. He prepared post mortem report Ext. Ka.3. 6- The injured Shamsher Singh was medically examined by Dr. Raj Kumar Joshi, in the P.H.C. Champawat on 30.10.1991 at 7.30 p.m. and found the following injuries on his person- 1- A punctured wound ½ cm x ½ cm about 7 ½ cm from the left nipple (lower and slightly lateral). 2- A punctured wound ½ cm x ½ cm about 24 cm lower and lateral to the left nipple. In the opinion of the doctor both the injuries were simple in nature and inflicted by a sharp object. He prepared injury report, Ext. Ka.4. 7- The I.O. after completing the investigation, submitted charge sheet, Ext. Ka. 15, against the accused. 5 8- On receipt of charge sheet, the Chief Judicial Magistrate, Pithoragarh, vide his order dated 28.2.1992, committed the case to the court of Sessions for trial. 9- The learned Sessions Judge, framed charges U/Ss 302 and 307 I.P.C. against the accused, to which he pleaded not guilty and claimed to be tried. 10- The prosecution, to bring home the guilt of the accused, produced P.W.1, Km. Kusum Mehta, P.W.2, Laxman Singh, P.W.3, Shamsher Singh, P.W.4, Jagat Singh, P.W.5, Dr. Pramod Kumar Karnataka, P.W.6, Dr. Raj Kumar Joshi, P.W.7, V.K. Nautiyal, and P.W.8, Ramesh Lal Verma. 11- The accused in his statement U/S 313 Cr.P.C. denied the prosecution case and alleged that he has been falsely implicated in the case. He, however did not adduce any evidence in his defence. 12- The learned Sessions Judge, after hearing learned counsel for the parties, and perusing the entire material available on record, found the accused/appellant guilty of offences U/Ss 302 and 307 I.P.C. and sentenced him to undergo life imprisonment U/S 302 I.P.C. and five years’ R.I. U/S 307 I.P.C. 13- Feeling aggrieved, the accused/appellant has preferred this appeal. 14- We have heard Sri R.P. Nautiyal, and Sri P.C. Maulekhi, learned counsel for the appellant and Sri S.S. Adhikari, learned A.G.A. and perused the entire evidence on record. 15- The learned counsel for the appellant has submitted that the F.I.R. of the incident has been lodged with considerable delay after due deliberations and consultations. According to him deceased Ashok Mehta was injured at about 5.30 p.m. but the F.I.R. 6 has been lodged after about four hours and this delay is fatal to the prosecution case. 16- We do not find any merit in the above submission advanced by learned defence counsel. P.W.2, Laxman Singh, father of the deceased, has lodged the F.I.R. This witness has deposed that on the day of incident, i.e. 30.10.1991 he was in his office. He came to know that his son Ashok Mehta had gone to play cricket. At about 6- 6.30 p.m. Shamsher and Jagdish came to his house and told that his son has sustained injuries. At that time they did not tell how Ashok sustained injuries and he though that he was injured by cricket ball. Then he went to hospital and there he saw that his son was lying on a stretcher and there was knife wound on his leg and there he came to know that Jagdish Singh sustained injuries to him. He further deposed that both the witnesses P.W.3, Shamsher Singh and P.W.4, Jagat Singh have told him that accused Jagdish Singh had injured his son by knife. He further deposed that he informed the police on telephone, but the police asked him to come to police station. Then he got prepared the written report by Shankar Pandey outside the police station and handed over it to the police. He has proved the F.I.R. Ext. Ka.1. He further deposed that at about 2.00a.m. in the night his son died due to the injuries. He also deposed that before preparing the F.I.R. he had inquired about the incident from the witnesses. P.W.3, Shamsher Singh and P.W.4, Jagat Singh, who are eyewitnesses of the occurrence, have given the time of incident as 5.30 p.m. The distance of police station from the place of occurrence has been shown about 14 kilometers in the chick F.I.R. Therefore, in the above facts and circumstances of the case, it cannot be said 7 that the written F.I.R. has been lodged with delay and after due consultations. We find that the F.I.R. has been lodged promptly, and whatever delay is there, that has been fully explained. 17- Learned counsel for the appellant next submitted that according to the prosecution witnesses the place of occurrence is about 1½ -2 kilometers away from the playground, where the deceased and the witnesses were playing cricket, therefore, the presence of witnesses at the place of occurrence is highly doubtful. 18- P.W.3, Shamsher Singh and P.W.4, Jagat Singh are the eyewitnesses of the occurrence. According to these witnesses on 30-10-1991, they were playing cricket in Guralchaur. Lateron Ashok also came there and he also played cricket with them. Thereafter they returned to their homes together and when they reached near the cow-shed of Shah Ji, accused Jagdish came there. Ashok Mehta was moving ahead of them. Ashok Mehta asked the accused as to why he used to tease his sister, today also he teased her. He further told the accused he has also mother and sisters. At this accused Jagdish brought out a knife from his pocket and threatened Ashok Mehta who is he, he would finish him and gave knife blow on the right shoulder of the deceased. After sustaining knife blow, Ashok Mehta fell down in the field, accused Jagdish also went there and gave knife blow on the calf of leg and thigh of Ashok Mehta. These witnesses tried to save the deceased and went in the field where the accused was giving knife blows to the deceased, but the accused also gave knife blow to Shamsher Singh and when they raised alarm then the accused ran away along with the knife. From the depositions of P.W.3, 8 Shamsher Singh and P.W.4, Jagat Singh, it is quite clear that after playing cricket, deceased Ashok Mehta and these persons were returning to their homes together and when they reached near the cow-shed of Shah Ji, accused Jagdish Singh came there and when the deceased scolded him on the subject of teasing his sister by the accused, the accused threatened him to finish and got injured him by a knife. It appears that the houses of deceased, accused and the witnesses are in the same vicinity and they use the same path for coming to market and going to their houses and at the time of incident the witnesses and the deceased were returning together through the same way. Therefore, the presence of P.W.3, Shamsher Singh and P.W.4, Jagat Singh at the scene of occurrence along with the deceased cannot be doubted. 19- Both these witnesses, P.W.3, Shamsher Singh and P.W.4, Jagat Singh have fully corroborated the prosecution version regarding giving information to the father of the deceased, and carrying the injured Ashok Mehta to the hospital. They have deposed that they brought injured Ashok Mehta to Dr. Joshi who tied bandage to the wounds of the deceased and advised them to carry the injured to the hospital. Then they carried Ashok to Hospital in a jeep and after getting admitted the injured in the hospital they went at the house of the father of Ashok and told him that Ashok has sustained injury. They did not tell him about knife injury for the reason that Ashok was the only son of his father and hearing the incident he might develop heart attack. These witnesses narrated the actual incident to the father of the deceased lateron. 9 20- Learned counsel for the appellant also submitted that the recovery of knife at the instance of accused is also doubtful because the witness of recovery P.W.8, Ramesh Lal Verma has deposed that Daroga Ji called him and showed him a fish marked knife and told him that it had been recovered from the house of the accused and then he had signed the recovery memo. 21- From the evidence of P.W.8, Ramesh Lal Verma, it is not established that the recovery of knife was made from the house of accused in his presence. The I.O. Chandra Mohan Singh Rawat, who had made the recovery of the knife, has died and the testimony of P.W.7, V.K. Nautiyal shows that the recovery of knife, Ext. 1, was done at the instance of accused. According to P.W.7, on 11.11.1991, the I.O. C.M.S. Rawat has got recovered the knife at the instance of accused and he has prepared recovery memo Ext. Ka.13, in which it has been mentioned that accused Jagdish Singh handed over the knife to the I.O. which was kept by him inside the wooden beam above the Varandah of his house. There is eye witness account of P.W.3, Shamsher Singh and P.W.4, Jagat Singh, who have specifically deposed that accused Jagdish Singh had given knife blows to the deceased, as well as to Shamsher Singh, and when they raised alarm the accused fled away from the place of occurrence along with the knife. Hence, it cannot be doubted that the accused Jagdish Singh had killed the deceased by giving him knife blows. The medical evidence also fully corroborates the knife injuries on the person of the deceased. Soon after sustaining injuries, the deceased was brought to Dr. Joshi, who gave first aid to him and on his advise the deceased was admitted in P.H.C. 10 Champawat at 7.30 p.m. where Dr. P.K. Karnataka, medically examined him and found two incised wounds and two lacerated wounds. According to him injury no.2 was grievous in nature and the patient was comatosed, pulseless and pupils were dilated and exhibited signs of massive haemorrhage. In the opinion of the doctor injury no.2 was caused by sharp edged weapon. After the death of the deceased Dr. Karnataka also performed autopsy on his dead body and opined that the death was caused due to massive haemorrhage and shock as a result of injuries sustained by him. When the doctor had examined the injured Ashok Mehta at 7.30pm on 30.10.1991, he has given the duration of injuries less than two hours. 22- The prosecution version is further supported by the injury report of Shamsher Singh, Ext. Ka.4. This witness was medically examined by Dr. R.K. Joshi on 30.10.1991 at 7.30 p.m. and two punctured wounds were found by the doctor. According to the doctor the injuries could be caused by sharp object. Therefore, the prosecution has fully proved this fact that accused Jagdish Singh has committed the murder of deceased Ashok Mehta by inflicting him knife injuries. 23- Learned counsel for the appellant also argued that injury nos. 3 and 4 on the person of the deceased were lacerated wounds and according to the doctor these injuries could not be caused by knife, but the prosecution has not explained as to how these injuries were caused to the deceased, therefore, the medical version cannot be believed. 24- Again the above submission has no force. P.W.3, Shamsher Singh and P.W.4, Jagat Singh, the eyewitnesses of the occurrence have categorically deposed that when the accused gave knife blow to the 11 deceased at the first instance he fell down in the field from the road. Injury nos. 3 and 4 on the person of the deceased are minor lacerated wounds and these injuries might be caused to him by friction on the stones, when he fell down in the field. We find that the ocular version is fully corroborated by the medical evidence. 25- Learned counsel for the appellant also pointed out that the prosecution has not been able to establish the strong motive with the accused/appellant for committing the murder of the deceased, hence the accused/appellant is not liable to be punished for the offence of murder. 26- So far as the motive part is concerned, according to the prosecution, accused/appellant had a bad-eye on the sister of the deceased and he often used to tease her and on the day of occurrence also, he teased her and she had complained to her brother Ashok Mehta and Ashok Mehta had scolded the accused on this subject and the accused with intention to finish Ashok Mehta committed his murder by inflicting knife injuries to him. P.W.1, Km. Kusum has supported this part of prosecution case. She has given on oath statement that she knew the accused very well. On 30-10-1991 she was studying in class 10th. At about 4.00p.m. after closing of her school, she was coming to her home and when she reached near Champawat station, accused Jagdish Singh pulled her stole, drew her braid and misbehaved with her. When she reached at her house, she told this incident to her father and brother and her brother had told her he would scold the accused. This witness further deposed that the accused was doing these wrong activities with her from prior to the incident. She further 12 deposed that soon thereafter her brother Ashok had gone to play the cricket. Later-on in the evening Jagat Singh came to her house and told that Jagdish Singh @ Jaggi had given knife blows to her brother. Then her father went to hospital and in that very night her brother had died. P.W.3, Shamsher Singh and P.W.4, Jagat Singh also supported this fact that when accused Jagdish Singh met them in the way, deceased Ashok Mehta had scolded him on the subject of misbehaving his sister Km. Kusum by the accused. Therefore, it is amply proved that the accused had strong motive to eliminate the deceased from his way. 27- Thus, from the evidence of P.W.3, Shamsher Singh and P.W.4, Jagat Singh, it is fully proved that accused/appellant Jagdish Singh had committed the murder of deceased Ashok Mehta. Both these witnesses are independent witnesses. No suggestion has been put to these witnesses as to why they would have deposed falsely against the accused/appellant. It has come in their evidence that they have no relationship with the complainant or enmity with the accused/appellant. The testimony of both these witnesses is cogent and reliable. Therefore, the prosecution has been successful in establishing the offence U/S 302 I.P.C. against the accused/appellant beyond all reasonable doubt and we do not find any infirmity in the impugned judgment in this regard. 28- Learned counsel for the appellant also submitted that the learned Sessions Judge committed grave error by convicting the accused/appellant U/S 307 I.P.C. According to him the injured P.W.3, Shamsher Singh has received simple injuries and the accused/appellant had no intention to inflict the injuries on his person with the intention of committing 13 his murder, therefore, the conviction and sentence of accused/appellant U/S 307 I.P.C. is liable to be set aside. 29- We find sufficient force in the above submission of learned counsel for the appellant. It has come in the deposition of eye witnesses, P.W.3, Shamsher Singh and P.W.4, Jagat Singh, that when the accused was inflicting injuries to the deceased, they in order to save the deceased, went in the field and then the accused also inflicted injuries on the person of Shamsher Singh and when they raised alarm accused fled away from the scene of occurrence along with his knife. Injured Shamsher Singh was examined by P.W.6, Dr. R.K. Joshi and he found two punctured wounds ½ cm x ½ cm in size on the left nipple and lower lateral to left nipple of Shamsher Singh and in the opinion of the doctor both the injuries were simple in nature. The injuries were not on vital part of the body. Therefore, in our opinion, the accused/appellant has committed an offence punishable U/S 324 I.P.C., voluntarily causing hurt by dangerous weapon on the person of injured Shamsher Singh and a sentence of two years R.I. will meets the ends of justice. 30- For the discussion made above, the appeal is liable to be partly allowed. 31- The appeal is partly allowed. The conviction and sentence of life imprisonment of the accused/appellant Jagdish Singh Rautela @ Jaggi, awarded by the trial court U/S 302 I.P.C., is upheld. However, the conviction and sentence of the accused/appellant U/S 307 I.P.C. is set aside. Instead, he is convicted U/S 324 I.P.C. and is sentenced to undergo R.I. for two years. Both the sentences shall run concurrently. 14 32- The accused/appellant is on bail. His bail bonds are cancelled and sureties discharged. He be taken into custody forthwith, so as to serve out the sentence, passed against him. 33- Let the record be transmitted to the court below for compliance. (Nirmal Yadav, J.) (B.C. Kandpal, J.) Dated: July 13, 2010 ISB