RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.416 OF 2001 (Old No.2159/1998) 1. Kirat Pal Singh S/o Asha Ram 2. Anil Kumar S/o Kirat Pal Singh 3. Tejpal S/o Kirat Pal Singh All R/o Village Mundakhera Kala, PS Laksar, Distt. Haridwar ……… Appellants Versus The State ……… Respondent Dated: June 11, 2010 Sri Manish Arora, learned counsel for the appellants Sri Amit Bhatt, learned Addl. GA for the State HON. DHARAM VEER, J. This criminal appeal, preferred under section 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 5.10.1998 passed by the Additional Sessions Judge, Roorkee in Sessions Trial No.79/1993, State Vs. Kiratpal Singh & others, thereby convicting and sentencing the appellant /accused Kirat Pal Singh u/s 325 of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentencing him to three years’ rigorous imprisonment with fine of Rs.500/- and in default, three months’ further RI was awarded, and further convicting and sentencing him u/s 323/34 IPC for six months’ RI. Appellants-accused Anil Kumar and Tej Pal were convicted and sentenced u/s 325/34 IPC for three years’ RI each with 2 fine of Rs.500/- each and in default, three months’ RI each and both of them were further convicted and sentenced u/s 323 IPC for six months’ RI. All the sentences were directed to run concurrently. 2. I have heard learned counsel for the parties and perused the entire material available on record. 3. In brief, the prosecution case is that complainant Chaman Lal (P.W.3) lodged a report at PS Laksar, District Haridwar stating therein that on 25.2.1991 at about 6:30 AM, when he went to his field, he saw the appellant- accused Kirat Singh while digging the CHAK road and the appellants-accused Tej Pal and Anil were also standing over there being armed with LATHIS. The complainant asked the appellant-accused Kiratpal Singh not to do so because by doing so, the path would be closed. On this, the appellant-accused Kiratpal Singh attacked upon him with the hilt of the spade, which hit on his forehead, while the sons of Kirat Singh, Tejpal and Anil started beating him with the LATHIS, with which they were armed. On the noise raised by the complainant, PW4 Kaliram and Tekchand, who were working in the nearby fields, came over the place of occurrence and saved him from the appellants-accused. The complainant, after getting himself medically examined, informed about the said incident, on the basis of which NCR Ex.Ka-7 was prepared u/s 323/504 IPC on 25.2.1991 at 12:10 PM. Injured Chaman Lal was medically been examined on 25.2.1991 at 9:20 AM by PW2 Dr. N.P. Bharti, who prepared the injury report Ex.Ka-2 and supplementary report Ex.Ka-3. X-ray of injured was also conducted, x-ray report is Ex.Ka-1 which was prepared by PW1 Dr. Ajay Kumar. Thereafter, on the 3 basis of medical and x-ray reports, the case was registered as Case Crime No.30/1991 u/s 308/323/504 IPC and entry in that regard was made in the GD, carbon copy whereof is Ex.Ka-4. Investigation was entrusted to PW6 SI Ram Atar Singh, who during the course of investigation, inspected the place of occurrence and prepared the site plan, i.e. Ex.Ka-5. During the course of investigation, the I.O. recorded the statements of witnesses and on completing the investigation, filed the charge sheet, i.e. Ex.Ka-6. 4. After receiving the charge sheet, learned ACJM, Roorkee committed the case to the court of Sessions on 18.02.1993 after giving necessary copies to the appellants/accused as provided under Section 207 Cr.P.C. The case was first transferred to Second Assistant Sessions Judge and later to the Additional Sessions Judge by the Sessions Judge for disposal as per law. 5. On 24.5.1993, learned Second Assistant Sessions Judge, Roorkee has framed the charge against the appellants/accused Kiratpal, Anil Kumar and Tejpal u/s 308/34 IPC. The charge was read over and explained to appellants/accused, who pleaded not guilty and claimed to be tried. Thereafter, on 12.6.1998, additional charge was framed against the appellant-accused Kiratpal u/s 323/34 IPC and also against the appellants-accused Anil Kumar and Tejpal u/s 323 IPC. This charge was also read over and explained to each of them to which they pleaded not guilty and claimed to be tried. 6. To prove its case, the prosecution has examined P.W.1 Dr. Ajay Kumar, Radiologist, PW2 Dr. NP Bharti, who medically examined the injured, PW3 Chaman Lal, injured, PW4 Kali Ram, eyewitness, PW5 Constable Rajbeer Singh, 4 who proved the NCR and PW6 SI Ramatar Singh, IO of the case. 7. After that the statements of the appellants/ accused were recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to each of them in question form, who denied the allegations made against them and stated that they have been falsely implicated. 8. After hearing learned counsel for the parties and appreciating the entire material available on record, the learned Additional Sessions Judge, Roorkee vide judgment and order dated 5.10.1998 convicted and sentenced the appellants/accused as above discussed. Feeling aggrieved by the aforesaid judgment and order, the accused/ appellants have preferred the present appeal. 9. Before further discussion, it is pertinent to mention the injuries recorded on the person of injured Chaman Lal (PW3), who was medically examined on 25.2.1991 at 9:20 AM by PW2 Dr. NP Bharti, which are as under: - 1. “L.W. 4 cm x 1 cm x bone deep on the center of forehead, wound surface covered with fresh blood, x-ray advised 2. Abrasion 3 cm x 0.6 cm on the back of the left forearm 8 cm below the elbow joint, no scab found. 3. Abrasion 1.5 cm x 0.7 cm on the back of the lateral side of left forearm, 4 cm above of left wrist joint, no scab found. 4. L.W. 1 cm x 0.2 cm x muscle deep along with contusion 9 cm x 2 cm on the right side of the frontal bone of skull, no colour visualized. 5 5. Contusion 45 cm x 2.5 cm on the back of the left side from spine of the left scapula to upper end of left pelvic (hip bone) red colour visualized. 6. Contusion 19 cm x 2.5 cm on the back from inf. angle of left scapula to upper end of lumber region, red colour visualized. 7. Contusion 8 cm x 2.5 cm on the back just adhere to injury no.6, red colour visualized. 8. Abrasion 2.5 cm x 1.5 cm on the back of the chest at the junction of upper 2/3 and lower 1/3 of the thoracic vertebrae column. 9. Contusion 16 cm x 2.00 cm on iliac back of right side of chest lower end is in continuation of injury no.8 and upper end is up to medial end of right scapula, red colour visualized. 10. Contusion 2.5 cm x 2 cm on the pulp of the little finger of the hand, red colour visualized. Opinion-All injuries are caused by blunt and hard weapon. Nature of injury no.1 can be given after x-ray report. Rest all are simple in nature. Duration fresh. After receipt of the x-ray report, the same medical officer also prepared the supplementary report and opined as under: - “Opinion- According the x-ray report, injury no.1 is grievous in nature.” 10. To prove the above-said reports, the prosecution has examined PW2 Dr. N.P. Bharti, who has proved the injury report Ex.Ka-2 and supplementary report Ex.Ka-3. He also stated that as per the x-ray report, injury no.1 is grievous and dangerous to life. All the injuries could have possibly been caused by some blunt object. 6 11. It is also pertinent to mention the x-ray report of injured, prepared by PW1 Dr. Ajay Kumar (Ex.Ka-1) which reads as under: - “X-ray Skull : - Fracture of vault of skull seen just above frontal sinus of skull seen above glaballe.” 12. To prove the x-ray report, the prosecution has examined PW1 Dr. Ajay Kumar, who has proved the x-ray report Ex.Ka-1 prepared by him. 13. To further prove its case the prosecution has examined PW3 Chaman Lal, injured witness, who stated that on the date of incident i.e. 25.2.1991 at about 6:30 AM, he went on his field and saw that the appellant- accused Kiratpal Singh was digging the CHAK road while Anil and Tejpal, sons of Kiratpal Singh, were standing being armed with LATHIS. He asked the appellant-accused Kiratpal Singh not to dig because by doing so, the path would be closed. On this, the appellant-accused Kiratsingh, with intention to kill him, attacked upon him with a spade, however the hilt of the spade hit on his forehead and then the sons of appellant-accused Kiratpal who were standing over there, also started beating him with LATHIS. On the noise raised by him, PW4 Kali Ram and Tek Chand arrived on the spot and could manage to save him from the appellants-accused. He got himself medically examined at Government Hospital, Laksar and thereafter, he lodged the report in the police station. His x-ray was also been conducted. This witness was cross-examined at length by the defence counsel but nothing has come out in his statement which may create any doubt in his statement. The statement of this witness is reliable and believable and inspires confidence. 7 14. PW4 Kali Ram, eyewitness of the case, has fully corroborated the evidence of PW3 Chaman Lal, injured witness. 15. PW5 Constable Rajveer Singh who has proved the NCR of this case written on 25.2.1991. 16. PW6 SI Ram Atar Singh, IO of the case, who stated that on 25.2.1991 he was posted as SI at PS Laksar. On that day, Chaman Lal lodged a report against the appellants-accused as NCR U/s 323/504 IPC, which was further amended on 6.3.1991 by GD No.17 at 10:30 AM on the basis of x-ray report and medical report, the copy of the GD is Ex.Ka-4. Investigation of this case was entrusted to him. He inspected the place of occurrence and prepared the site plan, Ex.Ka-5. During investigation, he recorded the statements of the witnesses and on completing the investigation, he filed the charge sheet, i.e. Ex.Ka-6. 17. After that the statements of the appellants/ accused were recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to each of them in question form, who denied the allegations made against them and stated that they have been falsely implicated. 18. Mr. Manish Arora, learned counsel for the appellants-accused argued that as per the above said discussion, the prosecution has not proved its case beyond reasonable doubt against the accused/ appellants. I do not find any force in this argument for the reason that PW3 Chaman Lal, who is the injured witness of the case, has stated that on the date of incident i.e. on 25.2.1991 at about 6:30 AM, he went on his field and saw that the appellant-accused Kiratpal Singh was digging the CHAK 8 road while Anil and Tejpal, sons of Kiratpal Singh, were standing being armed with LATHIS. He asked the appellant-accused Kiratpal Singh not to dig because by doing so, the path would be closed. On this, the appellant- accused Kiratpal singh, with intention to kill him, attacked upon him with a spade, however the hilt of the spade hit on his forehead and then the appellants-accused Anil Kumar and Tejpal, who were standing over there, also started beating him with LATHIS. On the noise raised by him, PW4 Kali Ram and Tek Chand arrived on the spot and they could manage to save him from the appellants-accused. Thereafter, he got himself medically examined at Government Hospital, Laksar and thereafter, he lodged the report in the police station. His x-ray was also been conducted. The evidence of this witness is reliable and believable and inspires confidence and the same also gets corroboration from the oral evidence of PW4 Kali Ram, who is also the eyewitness of the case and has also fully corroborated the prosecution story. Even the medical report also supports the prosecution version. The prosecution has also examined PW2 Dr. N.P. Bharti, who medically examined the injured, found as many as two lacerated wounds, three abrasions and five contusions on the person of injured Chaman Lal. Thereafter, on the basis of the x-ray report, the medical officer opined that the injury no.1- i.e. is “Lacerated Wound 4 cm x 1 cm x bone deep on the center of forehead, wound surface covered with fresh blood” was grievous and was dangerous to life. He further opined that all the injuries found on the persons of injured could have possibly been caused by some blunt object. He also proved the injury report Ex.Ka-2 and the supplementary report Ex.Ka-3 prepared on the basis of x-ray report Ex.Ka.1. Thus, as per the above-said discussion, the prosecution has completely proved its case beyond 9 reasonable doubt for the offences punishable u/s 325 and 323/34 IPC against the appellant-accused Kiratpal Singh and also against the appellants-accused Anil Kumar and Tejpal for the offences punishable u/s 325/34 and 323 IPC, and the trial court was completely correct and justified in convicting and sentencing the appellants-accused as above discussed and I do not find any ground to interfere with the said judgment and order passed by the trial court. 19. For the reasons as aforesaid, the appeal is devoid of merits and is accordingly dismissed. Judgment and order dated 5.10.1998 passed by the Additional Sessions Judge, Roorkee in S.T. No.79/1993, State Vs. Kiratpal Singh, convicting and sentencing the appellants-accused, as above discussed, is hereby made affirmed. The appellants-accused are on bail. Let they be taken into custody forthwith to serve out the sentence. However, the period already undergone by them during investigation, trial or appeal shall be adjusted after verifying the record. 20. A copy of this order along with the lower court record be sent back for compliance forthwith. (Dharam Veer, J.) June 11, 2010 Rajeev Dang