RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.626 OF 2001 (OLD NO.38 OF 1997) Ram Pal ……… Appellant Versus State of Uttarakhand .……… Respondent Dated: May 6, 2010 Mr. Ajay Veer Pundir, 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 19.11.1996 passed by Additional Sessions Judge, Roorkee in Sessions Trial No.349/1993, State Vs. Rampal, whereby the learned Addl. Sessions Judge convicted the appellant/accused under Section 324 and 325 of The Indian Penal Code, 1860 (hereinafter to be referred as IPC) and sentenced him to undergo one year’s R.I. u/s 324 IPC and further one years R.I. u/s 325 IPC with a fine of Rs.1,000/- and in default of payment of fine, three month’s R.I. was further awarded. Both the sentences 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 on 3.7.1992 Sahendra Singh lodged a report in the Police Station Manglore stating therein that on 2.7.1992 in the night his brothers Mahendra Singh and Inder Singh and other family members were sleeping in the house. Meanwhile, at about 00.30 AM in the night, appellant/accused Rampal armed with single barrel gun came there. His brother Mahendra Singh was sleeping in the cot by keeping his left hand below his head. With intention to kill his brother, appellant/accused fired on him. Appellant/accused was accompanied with four other miscreants. One of them was having revolver and one was having knife and all of them with intention to kill them, started assaulting them. Other miscreants were not known to them. Appellant/accused Rampal was saying to hand over Kuswa and other goods to him otherwise he will cause injuries to him (complainant) and Inder Singh like Mahendra Singh. On hearing the sound of fire, Amar Singh, Daya Ram, Bhusan and others reached at the spot, who saw the accused persons in the light of electric bulb. On seeing so many persons coming, the accused persons ran away. With the same averments, the First Information Report was lodged by Sahendra Singh (PW1) on 3.7.1992 at 11:35 PM at P.S. Manglore. That FIR is Ext.Ka-1. On the basis of this FIR, Chik FIR of the case was prepared by C/c Rampal, i.e. Ext.Ka-6. Necessary entries were also made in the G.D., carbon copy of which is Ext.Ka-7. Initially, the investigation of this case was entrusted to S.S. Yadav, but later on it was entrusted to Rajesh Kumar Sharma (PW7). On 2.7.1992 at 6:55 AM injured Mahendra Singh was got medically examined by Dr. O.P. Sharma (PW5), who after the medical examination, prepared the injury report, i.e. Ext.Ka-8. Supplementary report of the injured was also prepared by the same Medical Officer, which is Ext.Ka-9. X-ray of the injured was also conducted by Dr. R.K. Pandey (PW6), the X-ray report is Ext.Ka-10. During the course of investigation, the I.O. took into possession small pieces of bones from the place of occurrence vide Fard Ext.Ka-2, took into possession one Khokha cartridge of 315 Bor and Tikli vide Fard Ext.Ka-3 and also took into possession bloodstained clothes of injured and pieces of rope vide Fard Ext.Ka-4. The I.O. also inspected the place of occurrence and prepared the site-plan, i.e. Ext.Ka-5. During the course of investigation, the I.O. also recorded the statement of the witnesses and after completing the investigation, he submitted the charge sheet against the appellant/accused, which is Ext.Ka- 11. 4. After receiving the charge sheet, learned Judicial Magistrate, Roorkee, committed the case to the court of Sessions on 16.8.1993 after giving necessary copies to the appellant/accused as required u/s 207 Cr.P.C. 5. It seems from record that the case was transferred to Assistant Sessions Judge, Roorkee and thereafter it was transferred to Additional Sessions Judge, Roorkee for hearing and disposal according to law. 6. On 3.12.1993, learned First Assistant Sessions Judge, Roorkee framed the charge of offence punishable under Section 307 of IPC against the appellant/accused. The charge was read over and explained to the appellant/accused, who pleaded not guilty and claimed to be tried. 7. In order to prove its case, the prosecution has examined P.W.1 Sahendra Singh, eyewitness and complainant of the case, P.W.2 Mahendra Singh, injured eyewitness, P.W.3 Bhushan, eyewitness, P.W.4 S.I. Surendra Singh, Investigating Officer, P.W.5 Dr. O.P. Sharma, who medically examined the injured and prepared the injury report Ext.Ka-8 and supplementary report Ext.Ka-9, Dr. R.K. Pandey, Radiologist, who conducted the X-ray of the injured and prepared the X- ray report Ext.Ka-10 and P.W.7 S.I. Rajesh Kumar Sharma, Investigating Officer of the case, who after completing the investigation, has filed the charge sheet Ext.Ka-11 against the appellant/accused. 8. Thereafter the statement of the appellant/accused was recorded u/s 313 Cr.P.C. The oral and documentary evidence were 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 defence. 9. After appreciating the entire evidence on record and hearing learned counsel for the parties, learned Additional Sessions Judge, Roorkee vide his judgment and order dated 19.11.1996 convicted and sentenced the appellant/accused as mentioned above. Against the said judgment and order dated 19.11.1996, the appellant/accused has preferred this appeal. 10. Before further discussion, it is pertinent to mention here the injury report (Ex.Ka-8) of the injured Mahendra Singh who was examined on 2.7.1992 at 6:55 AM by P.W.5 Dr. O.P. Sharma, which reads as under: - (i) Lacerated wound 2 cm x 0.4 cm x scalp deep on left occipital clotted blood present. (ii) Fire arm wound of entry 4.5 cm x 4.0 cm on left forearm. On margins blackening present. Margins inverted. (iii) Fire arm wound of exit 2 cm x 1 cm on upper 1/3 anterior part of left forearm, margins exerted. On cleaning bleeding present. Opinion:- Injury no.1 caused by blunt object, injury no.2 and 3 kept under observation, X- ray advised. Injury no.1 simple and injury no.2 and 3 caused by fire arm. Duration fresh. 11. X-ray report Ext.Ka-10 of Mahendra Singh was prepared by P.W.6 Dr. R. K. Pandey, which reads as under:- - Skiagram showing multiple, radio opaque shadows of metallic density in forearm area, comminuted fractures of shafts of radius and ulna bones.” 12. On the basis of X-ray report, Dr. O.P. Sharma also prepared the supplementary report Ext.Ka-9 of the injured and opined as under:- “Injury no.2 and 3 caused by fire arm and grievous in nature.” 13. To prove the aforesaid report, the prosecution has examined P.W.5 Dr. O.P. Sharma, who stated that on 2.7.1992 at 6:55 AM he medically examined injured Mahendra Singh and found the above-noted injuries on his body. According to him injury no.1 was caused by blunt object and injury nos.2 and 3 were caused by fire arm. Injury no.1 was simple in nature. Injury nos.2 and 3 were kept under observation and X-ray was advised. On the basis of X- ray report, he prepared the supplementary report and opined that injury no.2 and 3 were caused by fire arm and were grievous in nature. He further stated that the injuries were possible to come on 1/2.7.1992 at 12 or 1 in the night. He has proved the injury report Ext.Ka-8 and supplementary report Ext.Ka-9. 14. P.W.6 Dr. R.K. Pandey, Radiologist stated that on 2.7.1992 he conducted the X-ray of injured Mahendra Singh and thereafter prepared the X-ray report Ext.Ka-10. He has also proved the X-ray plate Ext.3. 15. To prove its case further, the prosecution has examined P.W.1 Sahendra Singh, who has reiterated the version of FIR lodged by him in the police station. He has proved the report Ext.Ka-1. He has also stated that the I.O. had recovered the pieces of bones from the place of occurrence vide Fard Ext.Ka-2, took into his possession a cartridge and Tikli vide Fard Ext.Ka-3 and bloodstained clothes of injured and pieces of rope vide Fard Ext.Ka-4. He stated that he had also signed on Fards Ext.Ka-2, Ka-3 and Ka-4. 16. P.W.2 Mahendra Singh stated that on the date of incident he, his brothers Sahendra and Inder and mother Savitri were sleeping in separate cots. At about 12:30 in the night, the appellant/accused Rampal accompanied by three other miscreants came. Appellant/accused Rampal was armed with single barrel gun. One miscreant was armed with revolver, one was armed with knife and one another was also having a weapon. Appellant/accused pointed butt of gun on him and asked him to woke up. He asked whether he is giving his sister Kuswa or not. He deposed that he did not make any noise because of his life. When he refused for Kuswa then the appellant/accused fired on him which hit on his left hand. He further deposed that he identified the miscreants in the light of electric bulb. He further deposed that except appellant Rampal, he did not know the names of other miscreants but he can recognize them. He further stated that thereafter the accused persons started assaulting him. On hearing the sound of fire, some villagers reached at the spot. Thereafter, the accused persons ran away from the place of occurrence by saying that they will also cause injuries to Sahendra and Inder in the same way as they did with him. Thereafter he was first taken to Roorkee hospital, then to Haridwar and thereafter he got hospitalized at Meerut Medical. He further deposed that his sister Raji was got married to the appellant/accused Rampal. She had died before the said incident due to illness. His sister has two children. Appellant/accused Rampal wants to marry with Kuswa forcibly. 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. 17. P.W.3 Bhushan is the eyewitness of the case. He has corroborated the statement of P.W.2 Mahendra. 18. P.W.4 Surendra Singh Yadav has stated that on 3.7.1992 he was posted Sub Inspector at P.S. Manglore. On that day, the investigation of this case was entrusted to him. During the course of investigation, he inspected the place of occurrence and prepared the site-plan i.e. Ext.Ka-5. He took into possession bloodstained clothes of injured and piece of rope and prepared its Fard. He recovered a cartridge and a tikli from the place of occurrence, and after taking the same into possession, prepared its Fard. He also recovered piece of bones from the place of occurrence and prepared its Fard. He further stated that Chik FIR of the case was prepared by C/c Rampal and entries to this effect were also made by him in the G.D. He has proved the Chik FIR Ext.Ka-6 and copy of G.D. Ext.Ka-7. During the course of investigation, he also recorded the statement of witnesses. After that he was transferred from that place. 19. P.W.7 Rajesh Kumar Sharma stated that on 2.11.1992 he was posted S.I. at P.S. Manglore. On that remaining investigation of this case was entrusted to him. He perused the case diary and on completion of investigation, filed the charge sheet Ext.Ka-11 against the appellant/accused. 20. Thereafter the statement of the appellant/accused was recorded u/s 313 Cr.P.C. The oral and documentary evidence were 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 defence. 21. Learned counsel for the appellant/accused argued that the prosecution has not proved its case against the appellant/accused beyond reasonable doubt. I do not find any force in the argument of learned counsel for the appellant/accused for the reason that P.W.2 Mahendra Singh, who is the injured eyewitness of the case, in his deposition, has stated that on the date of incident he, his brothers Sahendra and Inder and mother Savitri were sleeping in separate cots. At about 12:30 in the night, the appellant/accused Rampal accompanied by three other miscreants came. Appellant/accused Rampal was armed with single barrel gun. One miscreant was armed with revolver, one was armed with knife and one another was also having a weapon. Appellant/accused pointed butt of gun on him and asked him to woke up. Appellant Rampal asked whether he is giving his sister Kuswa or not. He did not make any noise because of his life. When he refused for Kuswa then the appellant/accused fired on him which hit on his left hand. He further deposed that he identified the miscreants in the light of electric bulb. He further deposed that except appellant Rampal, he did not know the names of other miscreants but he can recognize them. He further stated that thereafter the accused persons started assaulting him. On hearing the sound of fire, some villagers reached at the spot. Thereafter, the accused persons ran away from the place of occurrence by saying that they will also cause injuries to Sahendra and Inder in the same way as they did with him. Thereafter he was first taken to Roorkee hospital, then to Haridwar and thereafter he got hospitalized at Meerut Medical. It is also stated that his sister Raji was married to the appellant/accused Rampal. She had died before the said incident due to illness. His sister has two children. Appellant/accused Rampal wants to marry with Kuswa forcibly. The evidence of this witness is reliable, believable and natural and inspires implicit confidence and the same also gets full corroboration from the oral evidence of P.W.1 Sahendra Singh and P.W.3 Bhushan, who too have fully supported the prosecution case in their examination. Apart from above, his evidence further gets full corroboration from the medical report Ex.Ka-8, supplementary report Ex.Ka-9 and X-ray report Ext.Ka-10 as well as from the medical evidence of P.W.5 Dr. O.P. Sharma, Medical Officer, who has stated that injury no.1 was caused by blunt object while the injuries no.2 and 3 were caused by firearm and injury no.2 and 3 were grievous in nature. All these facts and circumstances give full support and, therefore, wholly corroborate the statement of the injured. Thus, from the evidence discussed above, the prosecution has fully proved its case against the appellant/accused Rampal beyond reasonable doubt under Sections 324 IPC and 325 IPC and the trial court is correct and justified in convicting and sentencing the appellant/accused as discussed above. I also concur with the view taken by the trial court in convicting and sentencing the appellant/accused as discussed above. 22. For the foregoing reasons, the appeal is devoid of any merits and is accordingly dismissed. The judgment and order dated 19.11.1996 passed by Additional Sessions Judge, Roorkee in Sessions Trial No.349/1993, State Vs. Rampal, in convicting and sentencing the appellant/accused needs no interference by this court and is hereby made affirmed. The appellant is on bail. His bail is cancelled. Let him be taken into custody forthwith in order to serve out the sentence. However, it is made clear that the period of sentence already served out by him during investigation, trial or during the pendency of this appeal shall be adjusted after verifying from the records. 23. Let a copy of this order be sent back to the trial court concerned for compliance of the order forthwith. (Dharam Veer, J.) May 6, 2010 Rajni