RESERVERD JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL GOVERNMENT APPEAL No. 63 of 2001 (Old No. 2493/1997) State .…. Appellant Versus Paras & Another . .… Respondents August 5, 2010 Mr. Amit Bhatt, Addl. GA for the State/appellant. Mr. AM Saklani, Advocate for the respondents. HON’BLE DHARAM VEER, J. This appeal, preferred by the State under Section 378 of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.), is directed against the judgment and order dated 22.2.1997 passed by the Special Judge, Nainital in Sessions Trial No. 208 of 1992, State v. Paras & Another, whereby the accused respondents Paras and Prem Singh have been acquitted for the charge of offence punishable under Section 307 of Indian Penal Code, 1860 (for short, IPC). 2. In brief, the prosecution case is that PW1 Hansraj Singh lodged an FIR with PS Kichha on 2.7.1992 at 1.30 pm with the averments that on 2.7.1992 at about 5.30 am his son Nikhil Kumar (PW2) and Munna Singh (PW6) were collecting mangoes fallen from the mango trees in the back of his house. Meanwhile, respondents Paras and Prem Singh came there armed with knives and chased his sons by threatening that they would kill them. His sons ran towards the house. Hearing the noise of his sons, the complainant and the neighbourers Babulal Gupta and Dinesh (PW4) and many other people came at the place of occurrence, but in the meantime, Paras injured Nikhil Kumar and Prem Singh injured Munna Singh with the knives and thereafter respondents accused ran away from the place of occurrence. The incident was seen by the complainant and his neighbourers Babulal Gupta and Dinesh and many other people. Thereafter the injured were taken to the Kiccha Hospital. On the basis of this FIR Ex. Ka-1, Head Moharrir Prem Pal Singh prepared the chick FIR Ex. Ka-8. He also made the necessary entries in the GD, copy of GD is Ex. Ka-9. The investigation of this case was entrusted to PW3 SI RP Purohit. The injured Nikhil Kumar (PW2) and Munna Singh (PW6) were medically examined on the same day i.e. on 2.7.1992 at 6.15 am and 6.30 am respectively by PW5 Dr. R. Singh, who prepared the injury report Ex. Ka-5 in respect of Nikhil Kumar and injury report Ex. Ka-7 in respect of Munna Singh. Nikhil Kumar was also x-rayed, on the basis of which a supplementary report Ex. Ka-6 was also prepared by the same medical officer Dr. R. Singh. From the hospital, the memo was also sent to the police station which was received there at 12.15 pm and entry thereof was also made in the GD at 12.20 pm. During the course of investigation, the I.O. inspected the place of occurrence and prepared the site plan Ex. Ka-2. The I.O. also taken in the possession the bloodstained sheet (white coloured) and prepared a fard Ex. Ka-3. During the course of investigation, the I.O. recorded the statements of the witnesses and after completing the investigation, he filed the chargesheet Ex. Ka-4 under Section 307/324 IPC. 3. Learned Munsif Magistrate, Rudrapur after giving the necessary copies of the documents to the accused respondents as prescribed under Section 207 CrPC, committed the case to the Court of Sessions on 12.8.1992. 2 4. On 28.4.1993, learned Ist Addl. Sessions Judge, Nainital framed the charge against the accused respondents for the offence punishable under Section 307 IPC. The charge was read over and explained to the accused respondents, who pleaded not guilty and claimed to be tried. Subsequently, the case was transferred to Special Judge, Nainital for its disposal according to law. 5. To prove its case, the prosecution has examined PW1 Hansraj Singh, the complainant; PW2 Nikhil Kumar, injured; PW3 SI RP Purohit, the I.O. of the case; PW4 Dinesh, an eyewitness; PW5 Dr. R. Singh, who medically examined the injured and prepared the injury reports and PW6 Munna Singh, the injured. 6. Thereafter, statements of the accused respondents were recorded under Section 313 CrPC. The oral and documentary evidence were put to them in question form, who denied the allegations made against them. However, in defence, they did not produce any documentary or oral evidence. 7. After hearing learned counsel for the parties and after appreciating the evidence available on record, learned Special Judge, Nainital vide his judgment and order dated 22.2.1997 acquitted the accused respondents as discussed above. Against the aforesaid judgment and order dated 22.2.1997, the State has preferred the present appeal. 8. I have heard learned Counsel for the parties and have carefully perused the entire materials available on the record. 3 9. Before any further discussion, it would be pertinent to mention the injuries found on the body of injured Nikhil Kumar, PW2 and Munna Singh, PW6. Nikhil Kumar was medically examined on 2.7.1992 at 6.15 am by PW5 Dr. R. Singh, who prepared the injury report Ex. Ka-5 and noted the following injury: “(1) Incised wound of the size 1.5 cm x 1 cm x cannot be probed. Omentum coming out of the wound, 5 cm above and 5 cm lateral to the umbilicus on left side margins clean cut. Present in the abdomen just below left costal margins. Adv. X-ray abdomen. Opinion : Injury kept under observation. Caused by sharp object. Duration fresh. Pt. Admitted.” 10. Thereafter supplementary report Ex. Ka-6 in respect of PW2 Nikhil Kumar was also prepared by the same medical officer Dr. R. Singh on 4.7.1992 wherein it has been opined that the aforesaid injury was dangerous to life. 11. Injured Munna Singh (PW6) was also examined by PW5 Dr. R. Singh on 2.7.1992 at 6.30 am, who also prepared the injury report Ex. Ka-7 wherein he has noted the following injury: “Incised wound of the size 1.5 cm x 0.3 cm x 0.5 cm deep present on dorsum of left hand at the base of left thumb, blood coming out. Opinion : Injury is simple. Caused by sharp object. Duration fresh.” 12. To prove the aforesaid medical reports Ex. Ka-5, Ka-6 and Ka-7, the prosecution has examined PW5 Dr. R. Singh, who has proved the contents of same and has further stated that the abovementioned injuries could be caused on 2.7.1992 at 5.30 am by sharp edged weapon like knife. 4 13. To further prove its case, the prosecution has examined PW1 Hansraj Singh, the complainant who has stated that the incident happened on 2.7.1992. The time was about 5 am. His sons were collecting mangoes under the mango trees. The accused respondents Paras and Prem Singh came there and asked his sons as to why they were collecting the mangoes and claimed themselves as the owners of the mangoes. Both Paras and Prem Singh were armed with knives. Both the respondents came towards his house and near the door of his house, Paras caused injury to Nikhil with the knife due to which his intestine had come out. Prem Singh caused injury to Munna Singh, his another son outside the house near the water tap and he received injury in his hand. After hearing the noise, Babulal and Dinesh (PW4) came on the place of occurrence, who also witnessed the said incident. Thereafter the accused respondents ran away towards eastern side. Nikhil in the injured condition was taken to Kichha Hospital in a truck and he was treated there. Munna was also given the treatment in the same hospital. Thereafter the complainant got typed the report. The report was typed on his dictation. Thereafter he signed on that report and lodged it in the police station. That report is Ex. Ka-1. The accused respondents had enmity with the complainant due to the land and due to this enmity, they caused injures to his sons. Despite searching lengthy cross-examination, the defence Counsel has failed to elicit any material to shatter and discredit the testimony of this witness. His statement is reliable, believable and inspire the confidence. 14. PW2 Nikhil Kumar is the injured witness who has stated that on 2.7.1992 at about 5.30 am, he and his brother Munna Singh (PW6) were collecting mangoes. 5 Meanwhile respondents Paras and Prem singh came there who were armed with knives. After seeing the knives in the hands of the respondents they ran towards their house. Paras caused injury to him with the knife near the door of his house. His intestine had come out. Prem Singh caused injury to Munna Singh in his hand with the knife. They were taken to Kichha Hospital. He was also x-rayed. On the medical report his thumb impression was also taken. This witness was cross-examined at length by the defence counsel but he could not be shaken. 15. PW3 SI RP Purohit has stated that on 2.7.1992 he was posted in PS Kichha. Investigation of this case was entrusted to him. During the course of investigation, he inspected the place of occurrence and prepared the site plan Ex. Ka-2. He also taken in possession the bloodstained sheet of white colour and prepared a fard Ex. Ka-3. During the course of investigation, he recorded the statements of the witnesses and after completing the investigation he filed the chargesheet Ex. Ka-4 against the accused respondents. 16. PW4 Dinesh has stated that on 2.7.1992 at about 5.30 am, he heard the noise coming out from the garden of Hansraj (PW1). He and Babulal Gupta had gone there and saw that respondents were armed with the knives. Nikhil (PW2) was running towards his house due to fear. Near the door of house accused respondent Paras caused injuries to Nikhil Kumar with the knife in his stomach and another accused respondent Prem Singh caused injuries to Munna Singh (PW6) on his left hand by a knife. On hearing the noise, Hansraj (PW1) also reached at the place of occurrence. Thereafter the respondents ran away towards the eastern side. Injured Nikhil was taken to Kichha Hospital. The bloodstained sheet was taken into 6 possession by the police and a fard was prepared. He and Babulal Gupta had also signed on that fard Ex. Ka-3. This witness was cross-examined at length by the defence counsel but nothing has come out in his testimony which may create any doubt about his deposition. 17. PW6 Munna Singh, also an injured witness, has stated that on 2.7.1992 at about 5-5.30 am, he and his brother Nikhil (PW2) were in the garden. Respondents Paras and Prem Singh came there and challenged them and when they started running, the accused respondents chased them. They were armed with knives. Paras caused injury to Nikhil with a knife near the door of house and Prem Singh caused injury to him with a knife outside the house in which he suffered the injury in the thumb of his left hand. He and his brother Nikhil were taken to the hospital where they were medically examined. In the medical report his thumb impression was also taken. This witness was also cross-examined at length by the defence counsel, but he could not be shaken. 18. Thereafter, statements of the accused respondents were recorded under Section 313 CrPC. The oral and documentary evidence were put to them in question form, who denied the allegations made against them. However, in defence, they did not produce any documentary or oral evidence. 19. Learned Additional GA for the State/appellant argued that in view of the evidence discussed above, the case against the accused respondents for the offence punishable under Section 324 IPC is proved beyond reasonable doubt and the learned trial court has erred in acquitting the respondents. I find substance in the 7 argument of the learned Addl. GA for the State/appellant due to the following reasons: (i) That as per the statement of PW2 Nikhil Kumar an injured witness, on 2.7.1992 at about 5.30 am, he and his brother Munna Singh (PW6) were collecting mangoes. Meanwhile respondents Paras and Prem singh came there who were armed with knives. After seeing the knives in the hands of the respondents they ran towards their house. Paras caused injury to him with the knife near the door of his house. His intestine had come out. Prem Singh caused injury to Munna Singh in his hand with the knife. They were taken to Kichha Hospital. He was also x-rayed. On the medical report his thumb impression was also taken. Despite searching lengthy cross-examination, the defence Counsel has failed to elicit any material to shatter and discredit the testimony of this witness. His statement is reliable, believable and inspire the confidence. (ii) That statement of PW2 Nikhil Kumar is fully corroborated by another injured witness PW6 Munna Singh. (iii) That the prosecution story is further corroborated by the statements PW1 Hansraj Singh and another independent witness PW4 Dinesh, a neigbour of the injured. None of them could be shaken on any point in their cross- examination. (iv) That the motive behind the said incident is also proved inasmuch as PW1 Hansraj Singh, the complainant and the father of the victim, has stated that the accused respondents had 8 enmity with him because of the land dispute and, therefore, they caused injuries to his sons. (v) That the incident took place at about 5.30 am on 2.7.1992 and the report was lodged on the same day at 1.30 pm and the distance between the place of occurrence and the police station is 9 kms. After the incident, the injured were immediately taken to the hospital, where they were examined at 6.15 am and 6.30 am on the same day. A memo was also sent to the police station from the hospital which was received in the police station at 12.15 pm and entry thereof was also made in the GD at 12.20 pm and thereafter a typed report was lodged at 1.30 pm by PW1 Hansraj Singh. Therefore, in the circumstances stated above, the FIR was also prompt. (vi) That as per the medical report Ex. Ka-5 and supplementary report Ex. Ka-6 prepared by PW5 Dr. R. Singh, who had medically examined the injured Nikhil Kumar (PW2) on 2.7.1992 at 6.15 am, the injured Nikhil Kumar had suffered injury in his abdomen which was dangerous to life. The injury was fresh and could have been caused by a sharp edged weapon like knife on 2.7.1992 at 5.30 am. PW5 Dr. R. Singh also examined another injured witness Munna Singh (PW6) on the same day at 6.30 am and prepared the injury report Ex. Ka-7 wherein he noted the injury in his left hand and has also stated the injury was fresh and further stated that it could have been caused by a sharp edged weapon like knife on 2.7.1992 at 5.30 am. Thus, the ocular version of evidence 9 adduced by the prosecution is well-corroborated by the medical evidence. 20. Thus, for the reasons recorded above, the case against the accused respondents for the offence punishable under Section 324 IPC is proved beyond doubt but the learned trial court has given its findings on the basis of presumptions and surmises inasmuch as the learned trial court was of the opinion that on the date and time of the incident i.e. on 2.7.1992 at around 5.30 am, it must be too dark to recognize any person at that time and, therefore, the accused respondents were given the benefit of doubt. But contrarily, the commonsense says that a normal morning in the early July should usually be well- illuminated and there should be sufficient light at around 5.30 am to recognize a person in the close surrounding, more especially in the present case as the accused respondents are the neighbourers and cousins of the victims. Hence, they were well-known to each other. Therefore, the trial court conjectured the existence of darkness at around 5.30 am on 2nd July, 1992, which is not correct and justified in the facts and circumstances of the case. 21. Further, the findings of the learned trial court is also not correct on the points of motive behind the incident as well as on the promptness of the FIR. As has been discussed above, there was land dispute between the accused respondents and the complainant and, therefore, accused respondents were having enmity with the complainant and his family. As such, motive to commit the crime is also proved. Coming to the point of promptness of FIR, the incident happened at about 5.30 in the morning on 2.7.1992 and the distance between the 10 place of occurrence and the police station was nine kilometers and in the said incident PW2 Nikhil Kumar got severely injured and, therefore, he had to be rushed to hospital first, where he was treated at 6.15 am on the same day. Even a memo was also sent to the police station from the hospital which was received in the police station at 12.15 pm and the entry in this regard was also made in the GD at 12.20 pm and thereafter the complainant lodged this FIR on the same day at 1.30 pm. Hence, in these circumstances, the FIR was prompt, but the learned trial court did not consider the facts and circumstances of the case and erred in holding that FIR was lodged belatedly. Another finding of the trial court that dyeing declaration of Nikhil Kumar (PW2) was recorded but was not produced before it, is based on presumptions and surmises. 22. Thus, in view of my foregoing discussion of evidence and for the reasons recorded above, it is held that the prosecution has proved its case against the accused respondents beyond reasonable doubt for the offence punishable under Section 324 IPC as they had voluntarily caused injuries to PW2 Nikhil Kumar and PW6 Munna Singh on 2.7.1992 at about 5.30 am with knives near the door of the complainant’s house in village Anandpur, PS Kichha and, therefore, the impugned judgment and order of acquittal passed by the learned trial court is not justified and correct and the same is liable to be quashed. 23. In the result, the appeal is allowed. The judgment and order dated 22.2.1997 passed by the Special Judge, Nainital in Sessions Trial No. 208 of 1992, State v. Paras & Anr. is hereby set aside. The accused respondents Paras and Prem Singh are convicted under Section 324 IPC and each of them are sentenced to undergo RI for two years 11 along with fine of Rs. 2000/- each and in default of payment of fine, each of the accused shall undergo additional RI for three months. However, the period during which the accused respondents were in jail during investigation, trial and appeal shall be adjusted after verifying the same from the records. 24. Copy of this judgment and order be sent to the trial court for its compliance. Let the trial court record be sent back. (Dharam Veer, J.) 5.8.2010 PRABODH 12