RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.1928 OF 2001 (OLD NO.124 OF 1997) Basant Kumar Singh State of Uttarakhand Versus ……… Appellant .……… Respondent Dated: May 18, 2010 Mr. Tumul Nailwal, Advocate for the appellant Mr. Amit Bhatt, learned Additional Government Advocate for the State HON. DHARAM VEER, J. This appeal, preferred by the appellant 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 29.8.1997 passed by Special Judge/Additional Sessions Judge, Nainital in S.T. No.306 of 1992, State Vs. Basant Kumar, whereby the learned Special Judge/Addl. Sessions Judge convicted the appellant/accused Basant Kumar under Section 304 Part II of The Indian Penal Code, 1860 (hereinafter to be referred as The IPC) and sentenced him to undergo rigorous imprisonment for a period of ten years. 2. Heard learned counsel for the parties and perused the entire material on record. 3. In brief, the prosecution story is that Smt. Kalawati lodged a report in the Police Station Kotwali Khatima stating that on 16.9.1992 at about 8 AM her middle son Vijay Kumar was sitting on cot along with the guests. Meanwhile, her elder son Basant Kumar (the appellant herein) caused injuries on the head of her son Vijay Kumar by the Patti of stool as a result of which blood oozed out from his ear. Vijay Kumar was taken to Government Hospital Khatima for treatment, who succumbed to his injuries on 17.9.1992 at 02:45 AM. She also alleged that the appellant/accused Basant has run away somewhere. Lal Das, Kaileshi, wife of Vijay Smt. Laxmi, her daughter Sunita and others were present at the time of incident. With the same averments, the FIR was lodged by Smt. Kalawati (PW1) on 17.9.1992 at 8:45 AM at P.S. Kotwali Khatima, which is Ext.Ka-1. On the basis of this FIR, Chik FIR of the case was prepared by C/c Trilok Chand (PW5), i.e. Ext.Ka-3. Necessary entries were also made by him in the G.D., carbon copy of which is Ext.Ka-4. The investigation of this case was entrusted to Sub Inspector R.S. Gautam (PW6), who prepared the inquest report of the deceased Vijay Kumar, i.e. Ext.Ka-5. Along with the inquest report, other papers viz. Police Form No.13 Ext.Ka-6, sketch of the dead body Ext.Ka-7, specimen of seal Ext.Ka-8, Police Form No.33 Ext.Ka-9 were also prepared by the I.O. Thereafter, on 17.9.1992 at 4 PM, the post-mortem of the dead body of deceased Vijay Kumar was conducted by Dr. R.S. Gupta (PW4), who after the post-mortem examination, prepared the post-mortem report, i.e. Ext.Ka-2. During the course of investigation, the I.O. recorded the statement of the witnesses and inspected the place of occurrence and prepared the site-plan Ext.Ka-10 and after completing the investigation, he filed the charge sheet against the appellant/accused under Section 304 IPC, which is Ext.Ka-11. 4. After receiving the charge sheet, learned Munsif Magistrate, Khatima committed the case to the court of Sessions on 9.12.1992 after giving necessary copies to the appellant/accused as prescribed u/s 207 Cr.P.C. 5. On 22.11.1993, learned Special Judge/Addl. Sessions Judge, Nainital framed the charge of offence punishable u/s 302 IPC against the appellant/accused. The charge was read over and explained to the appellant/accused to which he pleaded not guilty and claimed to be tried. 6. In order to prove its case, the prosecution has examined PW1 Smt. Kalawati, eyewitness and complainant of the case, PW2 Ranjeet, eyewitness, PW3 Lal Das, PW4 Dr. S.R. Gupta, who conducted the post- mortem of the dead body of deceased Vijay Kumar, PW5 C/c Trilok Chand, who prepared the Chik FIR of the case and also made entries in the G.D and PW6 S.I. R.S. Gautam, Investigating Officer of the case. 7. Thereafter the statement of the appellant/accused was recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to him in question form, who has denied the allegations made against him. However, he has not produced any oral or documentary evidence in his defence. 8. Before further discussion, it is pertinent to mention that the Post-mortem of the dead body of deceased Vijay Kumar was conducted on 17.9.1992 at 4 PM by PW4 Dr. S.R. Gupta, who during the post- mortem examination, found the following ante-mortem injuries on the person of deceased:- i) Contusion over right side of head just above the right ear measuring 11 cm x 15 cm on opening there is dotted blood present in the underlying muscle tissue. There is fracture of temporal and parietal bone. There is subdural haemotoma 250 gm clotted blood present under the subdural space brain congested. Cause of death due to coma as a result of ante- mortem injury over head. 9. To prove the above-noted post-mortem report, the prosecution has examined PW4 Dr. S.R. Gupta, who has stated that on 17.9.1992 he was posted as Senior Pathologist at District Hospital Pilibhit. On that day at 4 PM, he conducted the post- mortem examination of the dead body of deceased Vijay Kumar and found the above-noted ante-mortem injuries on his body. He opined that these ante-mortem injuries could be caused by some blunt object like Lathi or wood. He also opined that the deceased had died on 17.9.1992 at 2:50 AM. He proved the report Ext.Ka-2. 10. To prove its case further, the prosecution has examined PW1 Smt. Kalawati. Her statement was recorded in the trial court on 12.6.1995 where she stated that the deceased Vijay Kumar was her son and the appellant/accused Basant Kumar is also her son. The said incident had taken place three years ago. At about 8 AM, guests were sitting on cot at her house. Deceased Vijay Kumar was also sitting with them. Appellant/accused Basant Kumar caused injuries on the head of Vijay Kumar by wood. Thereafter the appellant/accused ran away. Vijay Kumar was taken to hospital for treatment but he succumbed to his injuries. She further stated that the report of the said incident was lodged by her. She proved the report Ext.Ka-1. This witness was cross-examined at length by the defence counsel but nothing has come out from her evidence which may create any doubt in her evidence. The evidence of this witness is reliable, believable and inspires confidence. 11. PW2 Ranjeet stated that the deceased Vijay Kumar was his brother and the appellant Basant Kumar is also his brother. On the date of incident at about 8 AM his mother, deceased Vijay Kumar and his wife were at home. His father-in-law and father-in-law of his brother had come at their house. Guests and Vijay were sitting on the cot beneath the guava tree. The appellant/accuse came having wood with him and by the same he caused injuries to Vijay Kumar. Thereafter the appellant/accused ran away. Injured Vijay Kumar was taken to the hospital where he succumbed to his injuries. This witness was cross- examined at length by the defence counsel but nothing has come out from his evidence which may create any doubt in his evidence. The evidence of this witness is reliable, believable and inspires confidence. 12. PW3 Lal Das did not support the prosecution case and was declared hostile. 13. PW5 Constable Clerk Trilok Chand stated that on 17.9.1992 he was posted on the aforesaid post at P.S. Khatima. On that day, he received the report Ext.Ka-1 on the basis of which he prepared the Chik FIR Ext.Ka-3 of the case and also made entries in the G.D. Ext.Ka-4. 14. PW6 S.I. R.S. Gautam stated that on 17.9.1992 he was posted as Sub Inspector at P.S. Khatima. The investigation of the case was entrusted to him. He went at the place of incident and prepared the inquest report of the deceased Vijay Kumar, which is Ext.Ka-5. Along with the inquest report, he also prepared other papers viz. Challan Lash, sketch of the dead body, Specimen of seal and Police Form No.33, which are Ext.Ka-6, Ka-7, Ka-8 and Ka-9, respectively. During the course of investigation, he recorded the statement of witnesses and prepared the site-plan of the place of incident i.e. Ext.Ka-10 and after completing the investigation, he filed the charge sheet against the appellant/accused i.e. Ext.Ka-11. 15. Thereafter the statement of the appellant/accused was recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to him in question form, who has denied the allegations made against him. However, he has not produced any oral or documentary evidence in his defence. 16. Learned counsel for the appellant/accused argued that the prosecution has not proved its case beyond reasonable doubt against the appellant/accused under Section 304 Part II IPC. I do not find any substance in the argument of learned counsel for the appellant/accused for the reason that P.W.1 Smt. Kalawati, who is mother of both the appellant/accused Basant Kumar and the deceased Vijay Kumar, has stated in her deposition that on the date of incident i.e. 16.9.1992 at about 8 AM, guests had come at her house and they were sitting on the cot. Deceased Vijay Kumar was also sitting with them. Meanwhile, appellant/accused Basant Kumar caused injuries on the head of deceased by wood. Thereafter the appellant/accused ran away. Vijay Kumar was taken to hospital for treatment but he succumbed to his injuries. Report Ext.Ka-1 of the said incident has also been lodged by her. The evidence of this witness is reliable, believable and natural and inspires implicit confidence and the same also gets full corroboration from the evidence of P.W.2 Ranjeet, who is brother of both the deceased and the appellant Basant Kumar. He too has fully supported the prosecution case in his statement. Apart from above, the evidence of P.W.1 Smt. Kalawati further gets full corroboration from the post-mortem report Ext.Ka-2 as well as from the medical evidence of P.W.4 Dr. S.R. Gupta, who stated that the ante-mortem injuries found on the person of deceased could be caused by some blunt object like wood or lathi. He also opined that cause of death was due to coma as a result of ante-mortem injury over head. All these facts and circumstances give full support and, therefore, wholly corroborate the statement of the complainant Smt. Kalawati. In this way, the prosecution has been fully successful in proving its case against the appellant/accused under Section 304 Part II IPC and I am of the considered view that the trial court was correct and justified in convicting the appellant/accused as discussed above and I concur the view taken by the trial court in convicting the appellant/accused as discussed above. 17. Learned counsel for the appellant submitted that the sentence imposed upon the appellant by the trial court is on the higher side. He further submitted that the appellant is aged about 45 years. He is living with his wife and children, who are entirely dependent upon him. He is the only earning member of his family. Further, the appellant is facing the present case from last more than 18 years and he has not committed any other crime before or after this incident. Hence, he prayed that the sentence awarded to the appellant by the trial court may be reduced. 18. Keeping in view the totality of the circumstances, it is felt that while upholding the judgment of the trial court sentence needs to be reduced from ten years rigorous imprisonment to seven years. 19. Accordingly, the appeal is partly allowed. The judgment and order dated 29.8.1997 passed by Special Judge/Additional Sessions Judge, Nainital in S.T. No.306 of 1992, State Vs. Basant Kumar, in convicting the appellant needs no interference by this court and is hereby made affirmed. However, the sentence of ten years’ R.I., as directed by the trial court, is set aside. Instead, the appellant is sentenced to seven years R.I. u/s 304 Part II IPC. Appellant is on bail. His bail bonds are cancelled. Let him be taken into custody forthwith to serve out the sentence imposed upon him. However, it is made clear that the period of sentence already served out by the appellant during investigation, trial and appeal shall be set off after verifying from the records. 20. Let a copy of this order be sent to the trial court concerned for compliance of the order forthwith. (Dharam Veer, J.) May 18, 2010 Rajni