RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL GOVERNMENT APPEAL NO.1458 OF 2001 (OLD NO.354/1996) The State ..… Appellant Versus 1. Raju 2. Bhola 3. Manoj 4. Suresh .… Respondents Dated: December 10, 2009 Sri Amit Bhatt, learned Addl. GA for the State Sri Ramji Srivastava, learned counsel for the respondents HON. DHARAM VEER, J. This government appeal, preferred by the State u/s 378 of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 13.10.1995 passed by Additional Sessions Judge/Special Judge, Dehradun in S.T. No.116/1994, State Vs. Raju & three others, whereby the learned Addl. Sessions Judge/Special Judge acquitted the respondents of the charge u/s 307/34 of The Indian Penal Code, 1860 (hereinafter to be referred as the IPC). 2. Heard learned counsel for the parties and perused the record. 3. In brief, the prosecution story is that on 8.5.1994 Farjand Ali lodged a report at Police Station Vikasnagar, District Dehradun stating therein that last night his son Imran along with Mathu, Irfan and Jakir had gone to Cinema Hall at Vikasnagar. When they were 2 returning from there then at 12:30 AM in the night they saw accused/respondents Raju, Bhola Ram, Manoj and Suresh, in the light of electric bulb, standing near the house of Gopal. Accused/respondents Raju and Bhola were armed with knife and Manoj and Suresh were armed with Danda. Mathu and his son Imran asked the reason of standing there from the accused/respondents, on which the accused/respondents assaulted his son and Mathu with knife and danda. Jakir and Irfan tried to save his son and Mathu from the accused/respondents. Assuming his son and Mathu dead, the accused/respondents ran away from the place of incident. He further stated that Jakir and Irfan came to his house and narrated the entire incident to him. Then he alongwith Jakir and Irfan reached near the house of Gopal where he saw his son and Mathu drenched in blood. On being asked, his son and Mathu also told the same incident to him. He further alleged that the accused/respondents Raju, Bholaram, Suresh and Manoj, with intention to kill his son and Mathu, has caused injuries to them with knife, Lathi and danda. With the same averments, the First Information Report was lodged by Farjand Ali (PW1) at P.S. Vikasnagar, District Dehradun on 8.5.1994 at 01:10 AM. That F.I.R. is Ext.Ka-1. On the basis of this F.I.R., Chik F.I.R. of the case was prepared by Head Mohirror Rajendra Prasad, i.e. Ext.Ka-14. Necessary entries were also made in the G.D., carbon copy of which is Ext.Ka- 10. The investigation of this case was entrusted to PW6 Sub Inspector Ghanshyam Singh. On the same day in the night the injured persons were medically been examined. Inam @ Mathu was medically examined by Dr. G.S. Rawat (PW4) who also prepared his medical report, i.e. Ext.Ka-2. Supplementary report of Inam was also prepared by PW7 Dr. G.P. Painuly, which is Ext.Ka- 3 13. On 8.5.1994 injured Imran was also medically examined by PW5 Dr. J.S. Negi, who prepared his injury report, i.e. Ext.Ka-3. The Investigating Officer, during the course of investigation, recorded the statements of the witnesses; collected the plain and bloodstained dabar (part of road) from the place of incident and prepared the Fard Ext.Ka-4; prepared the site-plan of the incident i.e. Ext.Ka-5; took into possession the bloodstained clothes of the injured vide Fard Ext.Ka-6. On 11.5.1994, accused/respondent Raju was arrested by the Police and on his pointing out, the knife used in the said crime was recovered and after taking the same into possession Fard Ext.Ka-7 was prepared. Site-plan of the place of recovery of the knife was also prepared by the I.O., i.e. Ext.Ka-8. On completion of the investigation, the I.O. submitted the charge sheet against the accused/respondents, i.e. Ext.Ka-9. 4. On receipt of the charge sheet, learned Additional Chief Judicial Magistrate IInd, Dehradun committed the case to the court of Sessions on 15.11.1994, after giving necessary copies to the accused/respondents as provided u/s 207 Cr.P.C. 5. It appears from the record that the case was transferred to Additional Sessions Judge, Dehradun for hearing and disposal according to law. 6. On 12.1.1995, learned Addl. Sessions Judge, Dehradun framed the charge for the offence punishable u/s 307 r/w 34 IPC against the accused/respondents. The charge was read over and explained to the accused/respondents to which they pleaded not guilty and claimed to be tried. 4 7. To prove its case, the prosecution examined PW1 Farjan Khan, complainant of the case; PW2 Inam @ Mathu, injured eyewitness; PW3 Imran, injured eyewitness; PW4 Dr. G.S. Rawat, Medical Officer, who medically examined the injured Inam (PW2) and prepared the injury report Ext.Ka-2; PW5 Dr. J.S. Negi, Medical Officer, who medically examined the injured Imran (PW3) and prepared the injury report Ext.Ka-3; PW6 S.I. Ghanshyam Singh, Investigating Officer of the case and PW7 Dr. G.P. Painuli, who prepared the supplementary report Ext.Ka-13 of the injured Inam. 8. Thereafter the statements of the accused/respondents were recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to each of them in question form, who have denied the allegations made against them. However, they did not produce any oral or documentary evidence in their defence. 9. Before further discussion, it is pertinent to mention the injury report of the injured Inam, who was medically examined by PW4 Dr. G.S. Rawat on 8.5.1994 and who prepared his injury report Ext.Ka-2, which is reproduced as under:- (i) Incised wound 2.7 cm x 1.0 cm x depth not probed 12.0 cm below the left nipple on the left side chest at 5.30 O’clock position placed obliquely, margins clear cut, fresh blood oozing. (ii) Incised wound 2.0 cm x 1.0 cm x depth not probed on the left side abdomen, 8.0 cm away from the umbilicus at 3 O’clock position, margins clear cut, fresh blood oozing, placed obliquely. (iii) Incised wound 2.0 cm x 1.0 cm x depth not probed on the right side back of chest at about 8 5 O’ clock position, 8.0 cm below and medial to the inferior angle of right scapula, placed obliquely, margins clear cut, fresh blood oozing out. (iv) Incised wound 2.0 cm x 1.0 cm x depth not probed on the back of right side abdomen at about 6 O’ clock position, 20.0 cm below the inferior angle of right scapula, placed obliquely, margins clear cut, fresh blood oozing out. Opinion:- All injuries caused by sharp edged object, kept under observation and advised X- ray of chest, abdomen. 10. Injured Imran was medically examined on 8.5.1994 at 01:45 AM by PW5 Dr. J.S. Negi, who prepared his injury report Ext.Ka-3, which is reproduced as under:- (i) Incised wound 2.5 cm x 1 cm x muscles deep back part of abdomen right side 9 cm above and posterior to iliac crest spindle shaped, margins are clear cut, bleeding present. Admitted in the hospital. Opinion:- The above injury caused by sharp object, duration fresh. 11. Supplementary report Ext.Ka-13 of injured Inam was prepared by Dr. G.P. Painuly (PW7), which is reproduced as hereunder:- (i) Injury no.1 kept under observation is skin deep, simple incised wound. (ii) Injury no.2 kept under observation is cavity deep causing multiple perforation of small intestine and perforation of descending color – dangerous to life. 6 (iii) Injury no.3 kept under observation is muscle deep – simple incised wound. (iv) Injury no.4 kept under observation is muscle deep – simple incised wound. 12. To prove the above-noted reports, the prosecution firstly examined PW4 Dr. G.S. Rawat, who has stated that on 8.5.1994 he was posted as Emergency Medical Officer at Doon Hospital. On that day, he medically examined the injured Inam, who was brought by Mohd. Hussain and has found the above- noted injuries on his body. He has proved the injury report Ext.Ka-2. He opined that the above-noted injuries could be caused on 7/8.5.1994 at about 12-12:30 AM in the night and were possible to come by sharp edged object like knife, etc. 13. PW5 is Dr. J.S. Negi, who has stated that on 7/8.5.1994 he was posted as Medical Officer at Subhash Hospital, Vikasnagar. On that day, he medically examined the injured Imran and has found the above-noted injuries on his body. He has proved the report Ext.Ka-3 prepared by him at the time of medical examination. According to him, the injury was possible to come by means of knife or other sharp edged object on the same day at about 12-12:30 AM. 14. PW7 is Dr. G.P. Painuli, who has stated that on 8.5.1994 he was posted as Surgeon at District Hospital, Dehradun. On that day, he had operated injured Inam who was admitted in his hospital. He further stated that he has prepared the supplementary report of the injured, which is Ext.Ka-13. 7 15. To prove its case further, the prosecution examined PW1 Farjan Kha, who has stated that on the date of incident his son Imran alongwith Mathu @ Inam, Jakir and Hussain had gone to see the movie at Vikasnagar. When they were returning after watching the last show of movie, then near the gate of Gopal’s house at Nawabgarh, the accused/respondents Raju, Bhola, Manoj and Surest committed Marpeet with his son Imran and Mathu. This fact was told to him by Jakir and Irfan. On the basis of information given by Jakir and Irfan, he scribed the report Ext.Ka-1 in the police station from Wajid Ali and thereafter lodged the same at P.S. Vikasnagar. He has proved the F.I.R. Ext.Ka-1. In the cross-examination, he has stated that near the place of incident, electric bulb was lighting. He further that the injured had told him that all the four accused persons have caused injuries to him by lathi, danda and knife. 16. PW2 Inam is the injured eyewitness, who has stated that his another name is Mathu. He further stated that on the date of incident at about 12 in the night he was coming after watching the last show of movie. Imran, Jakir and Irfan were also with him. Jakir and Irfan were some foots ahead of him and Imran. When they reached near the gate of the house of Gopal they saw the accused/respondents Raju, Bhola, Manoj and Suresh standing there. This witness identified all the four accused persons in the court below. He further deposed that when they asked from the accused/respondents about the reason of standing there then accused/respondents Suresh and Manoj asked to kill them. He further stated that the accused/respondents Bhola and Raju were armed with knife and Suresh and Manoj were armed with dandas. 8 The accused/respondents started assaulting them with their respective weapons due to which he and Imran have received injuries. He further stated that he received injuries caused by knife on his abdomen and back. He further stated that the accused/respondents had also given 4-5 blows of danda on his leg. He further stated that he and Imran were taken to the hospital by the villagers and he remained admit in the hospital for about one month. He further stated that at the time of incident Jakir and Irfan had tried to save them but when the accused/respondent went forward to beat them then they ran away from the spot. He further stated that the Police had taken his bloodstained shirt into possession. 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. PW3 Imran is another injured eyewitness of the case. He has corroborated the statements of PW2 Inam. He has further stated that I.O. had taken his bloodstained undershirt and shirt into his possession. He identified the shirt Ext.2 and undershirt Ext.3 in the court below. He further stated that Jakir and Irfan had told about the said incident to his father and other people. Then his father and some other persons had reached at the place of occurrence and then he told about the said incident to his father. Thereafter both the injured were taken to the hospital. 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. 9 18. PW6 Ghanshyam Singh has stated that on 8.5.1994 he was posted as Sub Inspector at P.S. Vikasnagar and on that day the investigation of this case was entrusted to him. During the course of investigation, he recorded the statements of the witnesses; took the bloodstained and plain part of earth from the place of incident and prepared the Fard Ext.Ka-4; inspected the place of occurrence and prepared the site-plan Ext.Ka-5; took into possession the bloodstained clothes of the injured Inam alias Mathu and the Fard thereof was prepared by C.C. Jagmohan, which is Ext.Ka-6. He further stated that on 11.5.1994 accused/respondent Raju was arrested and on his pointing out bloodstained knife used in the said crime was recovered by S.O. Sri M.S. Negi and the Fard of the same was prepared, which is Ext.Ka-7. On the same day he prepared the site-plan of the place of recovery of knife, i.e. Ext.Ka-8. The recovered articles were sent for the chemical examination. On completion of the investigation, he filed the charge sheet against the accused/respondents i.e. Ext.Ka-9. He has proved the carbon copy of G.D. (Ext.Ka-10) prepared by H.M. Rajendra Prasad and G.D. No.22 dated 8.5.1994 (Ext.Ka-11). He has also proved the G.D. No.30 dated 11.5.1994 i.e. Ext.Ka-12. He has also identified the knife (Ext.4) recovered in the court below. 19. Thereafter the statements of the accused/respondents were recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to each of them in question form, who have denied the allegations made against them. However, they did not produce any oral or documentary evidence in their defence. 10 20. Sri Amit Bhatt, learned Additional Government Advocate appearing on behalf of the State has submitted that the prosecution has successfully proved the case beyond reasonable doubt against the accused/respondents. As far as the case against accused/respondents Raju and Bholaram are concerned, I find substance in the submissions of learned Addl. GA due to following reasons:- (i) PW1 Farjand had lodged the report on the information of Jakir and Irfan and also on the information given to him by his son Imran. He is the hearsay witness of the case and he has admitted the said fact that the report was lodged by him on the information of Jakir, Irfan and Imran. (ii) PW2 Inam @ Mathu has clearly stated in his deposition that at the time of incident accused/respondents Raju and Bhola were armed with knife and both of them caused injuries to him on his abdomen and back. Four incised wounds, as mentioned in injury report Ext.Ka-2, were found on his body by Dr. G.S. Rawat (PW3), Medical Officer. The Medical Officer has further opined that the injuries caused to Inam @ Mathu could have been caused by some sharp edged object like knife. Apart from that, Dr. G.P. Painuli, the medical officer who operated the injured Inam on 8.5.1994 and lateron prepared his supplementary report Ext.Ka-13 has specifically stated that injury no.2 of the injured was dangerous to life. Thus, the oral evidence of Inam @ Mathu gets full corroboration from the medical evidence and, therefore, version of the injured Inam @ Mathu inspire confidence. The evidence of PW2 Inam is cogent, reliable and trustworthy. 11 (iii) PW3 Imran has fully supported the statement of PW2 Inam @ Mathu. He has also stated that at the time of incident Raju and Bhola were armed with knife and they have caused injuries to him with knife. One incised wound, as mentioned in injury report Ext.Ka-3, was found in his body. According to medical officer, the injury caused to him could have been caused by some sharp edged weapon like knife. The oral evidence of this witness gets full corroboration from the medical report. Hence, evidence of PW3 Imran is cogent, reliable and inspires confidence. 21. Thus, from the evidence discussed above, I am of the considered view that on 8.5.1994 at about 12:30 A:M near the house of Gopal at Village Nababgarh, P.S. Vikasnagar, the accused/respondents Raju and Bholaram voluntarily caused injuries to Inam @ Mathu and Imran with knife with the intention or knowledge to kill them, and under such circumstances that, if the injured would die by these injuries then the accused/respondents would be guilty of murder and thus the accused/respondents have committed an offence punishable u/s 307 IPC. 22. As regards the case of other accused/respondents Suresh and Manoj, the prosecution has not proved the case beyond reasonable doubt against them as the danda was alleged to have been shown in the hands of Suresh and Manoj at the time of incident and as per the prosecution story both of them caused injuries to Inam @ Mathu and Imran with danda but no injury caused by means of danda was found on the body of any of these two persons. Thus, the presence of these two accused persons at the place 12 of incident is doubtful and I of the opinion that their names were taken by the witnesses just to exaggerate the whole story. 23. Therefore, in view of the above-said discussion, the learned Trial Judge was not correct and justified for acquitting the respondents Raju and Bholaram for the offence punishable u/s 307 I.P.C. read with Section 34 IPC. As such, the prosecution has been able to prove its case against the respondents-accused Raju and Bholaram for the offence punishable u/s 307 IPC and they are accordingly convicted under the aforesaid sections. However, the prosecution has failed to prove the case beyond reasonable doubt against the respondents Suresh and Manoj and the judgment and order passed by the trial court to this extent is confirmed. SENTENCE 24. Heard learned counsel for the parties on the quantum of sentence. Sri Ramji Srivastava, learned counsel for respondents-accused has submitted that 15 years have passed of the said incident and the respondents/accused are facing the present case from a long period in different courts, so a lenient view with regard to sentence may be taken. On the other hand, Sri Amit Bhatt, learned Addl. G.A. appearing for the State has submitted that the accused/respondents Raju and Bholaram caused injuries to Inam @ Mathu and Imran with the intention to kill them and injuries caused to them were on their vital part. He further stated that Injury no.2 of injured Inam @ Mathu was dangerous to life. Therefore, he prayed that maximum sentence may be given to accused/respondents Raju and Bholaram. 13 After considering all the facts and circumstances of the case and the gravity of offence and hearing the submissions of learned counsel for the parties, I am of the view that 7 year’s R.I. with a fine of Rs.1,000/- to each of the respondents-accused Raju and Bholaram for the offence punishable u/s 307 IPC, would meet the ends of justice. 25. For the reasons recorded above, the appeal preferred by the State is partly allowed. The judgment and order dated 13.10.1995 passed by Additional Sessions Judge/Special Judge, Dehradun in S.T. No.116/1994, State Vs. Raju & three others, is confirmed as far as the respondents Suresh and Manoj are concerned. However, the respondents-accused Raju and Bholaram are convicted under Section 307 IPC and each of them is sentenced to seven years’ R.I with a fine of Rs.1,000. In default of payment of fine, the above- named accused/respondents shall further undergo simple imprisonment for a period of three months. The period already undergone by the respondents-accused Raju and Bholaram during the period of investigation, trial and appeal shall be adjusted. Let the respondents/accused Raju and Bholaram be taken into custody forthwith in order to serve out the sentence as awarded against each of them. 26. Let a copy of this judgment be sent to the trial court concerned for compliance of the order forthwith. (Dharam Veer, J.) 10.12.2009 RG