IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 127 of 2007 Harish Chandra Singh S/o Sri Nain Singh Village Devalchoura, Patwari, Circle-Tuper District Bageshwar. ………. Appellant (in jail) Versus State of Uttarakhand ……. Respondent Present : Sri Lokendra Dobhal, Advocate present for the appellant. Sri B.S. Parihar, Brief holder present for the State/respondent. Hon’ble Prafulla C. Pant, J. Hon’ble Nirmal Yadav, J. [Oral : Praffulla C. Pant,J. ] This appeal, preferred under section 374 of the Code of Criminal Procedure, 1973 (for short Cr.P.C.) is directed against judgment and order dated 21.03.2007 passed by Sessions Judge, Bageshwar in Sessions Trial No.12 of 2006, whereby the accused/appellant Harish Chandra Singh has been convicted under section 304 of Indian Penal Code, 1860 (for short I.P.C.) and sentenced him to imprisonment for life and also directed to pay a fine of ` 20,000/-, in default of payment of which, the 2 convict is directed to undergo further six months simple imprisonment. 2. Heard learned counsel for the parties and perused the lower court record. 3. Prosecution story, in brief is that on 08.03.2006 at about 08.00 p.m. Kundan Singh (PW- 4), Sher Singh (PW-3) and Arjun Singh (deceased), all residents of village Davalchoura were returning after attending a marriage. Near the shop of Ude Singh, accused/appellant Harish Chandra Singh, Pradhan of village Davalchoura, came on a scooter and started quarrelling with Sher Singh (PW-3). Arjun Singh (deceased) tried to intervene, on which accused Harish Chandra Singh started grappling with Arjun Singh. On this, Kundan Singh (PW-4) mediated, and Sher Singh alongwith Arjun Singh started going towards their house. Again Harish Chandra Singh hurling abuses came to Sher Singh who ran away. Accused Harish Chandra Singh thereafter started beating Arjun Singh who fell down on the spot and started bleeding. Kundan Singh (PW-4) who was coming behind Arjun Singh, saw that accused Harish Chandra Singh (after Arjun Singh got injured) started massage the chest of Arjun Singh in order to provide him some relief. Sher Singh (PW-3) also come back at the spot and saw that Arjun Singh is lying unconscious. Thereafter, Arjun Singh was brought 3 down on the road by Sher Singh. Harish Chandra Singh got informed Prem Singh (PW-2), brother of the deceased about the condition of Arjun Singh. Thereafter, Arjun Singh was taken to a Primary Health Centre, Bageshwar, from where he was referred to Base Hospital, Almora. Doctors at Base Hospital, Almora further referred the patient (injured) to Haldwani. The Doctors at Haldwani on 09.03.2006 told Prem Singh (PW-2) that Arjun Singh is not likely to be saved and advised him to take back injured to home. When Prem Singh (PW-2) and others were coming back at Bageshwar, near Bilona (District Bageshwar), Arjun Singh succumbed to injuries. His dead body was taken to the mortuary at Bageshwar. A first information report (exhibit A-1) was got scribed by Prem Singh (PW-2) on 10.03.2006 and gave to Patti Patwari, Tuped (District Bageshwar) [In the interior hills of Uttarakhand, certain Revenue Officials are given police powers, under U.P. Government Notification No.494/VIII-418-16 dated 7th March,1916]. On the basis of said report check report (exhibit A-5) was prepared after registering the crime No.1 of 2006 relating to offence punishable under section 302 IPC against accused Harish Chandra Singh. Initially investigation was done by PW-7 Yuvraj Goswami, Patwari but later the same was transferred to PW-8 Sub Inspector Preetam Singh of regular police. Before that on 10.03.2006 at about 08.30 a.m., the police had already taken the 4 possession of dead body of Arjun Singh and prepared Inquest report (exhibit A-13). The police further prepared sketch of dead body (exhibit A-14), sample of seal (exhibit A-15), letter to Chief Medical Officer (exhibit A-16) and Police form No.13 (exhibit A-17). The dead body was sent for postmortem examination in a sealed condition. PW-5 Dr. N.S. Kutiyal conducted the postmortem examination on 10.03.2006 at 01.00 o’clock noon. He recorded seven ante mortem injuries which included five abrasions, one contusion and one incised wound. The Medical Officer opined that the deceased had died due to shock and haemorrhage as a result of ante mortem injuries recorded in autopsy report (exhibit A-4) prepared by him. After interrogating the witnesses and on completion of the investigation, the Investigating Officer submitted chargesheet (exhibit A-18) against accused Harish Chandra Singh for his trial in respect of offence punishable under section 302 IPC. 4. The Magistrate, on receipt of the chargesheet, after giving necessary copies to the accused as required under section 207 of Cr.P.C., appears to have committed the case to the court of Sessions for trial. The learned Sessions Judge, Bageshwar on 12.06.2006 after hearing the parties, framed the charge of the offence punishable under section 302 IPC to which accused pleaded not guilty 5 and claimed to be tried. On this, prosecution got examined PW-1 Umed Singh, PW-2 Prem Singh (Complainant and brother of the deceased), PW-3 Sher Singh (eyewitness), PW-4 Kundan Singh (another eyewitness), PW-5 Dr. N.S. Kutiyal, who conducted the postmortem examination, PW-6 Constable Gajendra Singh, PW-7 Yuvraj Goswami, Patwari, Tuped, and PW-8 Sub Inspector Preetam Singh who concluded the investigation. The oral and documentary evidence was put to the accused under section 313 Cr.P.C. in reply to which he alleged the same to be false. He pleaded that he has been falsely implicated due to enmity. However, no evidence in defence was adduced. The trial court after hearing for the parties, found the accused guilty of charge offence punishable under section 304 IPC. After hearing on sentence, the convict was sentenced to imprisonment for life and also directed to pay a fine of ` 20,000/-, in default of payment of which, convict was directed to further undergo six months simple imprisonment. Aggrieved by the said judgment and order dated 21.03.2007 in Sessions Trial No.12 of 2006 passed by Sessions Judge, Bageshwar, this appeal is preferred by the convict. 5. Before further discussions, we think it just and proper to mention the ante mortem injuries recorded by PW-5 Dr. N.S. Kutiyal in autopsy report (exhibit A-4) recorded by him on 10.03.2006 at 01.00 6 p.m. The ante mortem injuries are being reproduced below :- (i) Abrasions multiple over right side of knee. (ii) Abrasion 2x2cm of the shin of left leg. (iii) Multiple abrasion on right side of chest between 9-12 ribs. (iv) Abrasion over right thigh. (v) Abrasion over right gluteal, waist and back. (vi) Contusion in an area of 5cm x 3cm over right side forehead, blue-red colour. (vii) Incised wound with clotted blood & suturing 2.5cm x 1cm bone deep over occipital parietal scalp On internal examination the medical officer found fracture on the frontal parietal bone. He opined that deceased had died due to shock and haemorrhage as a result of ante mortem injuries. From the autopsy report (Ex. A-4) read with the statement of Dr. N.S. Kutiyal (PW-5), it is proved on the record that Arjun Singh died homicidal death on 09.03.2006. Now this Court has to see whether accused Harish Chandra Singh caused the death of Arjun Singh and committed culpable homicide not amounting to murder as found by the trial court or not. 7 6. PW-1 Umed Singh is not an eyewitness. He has simply stated that on 8th March 2006 between 8:00-9:00 p.m. he saw in the light of the torch that Arjun Singh was lying injured and accused Harish Chandra Singh was with him. When this witness asked Harish Chandra Singh as to what happened to Arjun Singh, the accused told him that Arjun Singh got injured. PW-1 Umed Singh further states that he asked Harish Chandra Singh to take Arjun Singh to hospital. On this Harish Chandra Singh requested Umed Singh (PW-1) to arrange a vehicle for taking the injured to hospital. The witness further states that thereafter he contacted a vehicle owner Om Prakash to provide the vehicle. At the end of the examination in chief, this witness states that accused Harish Chandra Singh was giving massage on the back of Arjun Singh. 7. PW-2 Prem Singh is also not an eyewitness. He is complainant and brother of the deceased who lodged the first information report. He has stated that on receiving information about the injuries suffered by Arjun Singh at the hands of Harish Chandra Singh, he took his injured brother to a Primary Health Centre, in Bagheshwar, from where injured was referred to Base Hospital Almora, and from there the injured was further referred to Haldwani. PW-2 Prem Singh further states that at Haldwani, doctors of Krishna Hospital told him that Arjun Singh cannot be 8 saved and it is better to take him back to home. The witness further narrates that on the way back to Bageshwar, near Bilona, Arjun Singh succumbed to the injuries suffered by him. Whereafter the dead body of Arjun Singh was taken by him to Mortuary room of the hospital of Bagheshwar. He further states that he got scribed report (Ex. A-1) on 10th March 2006, and gave to the Patwari of the area. 8. PW-3 Sher Singh is the star eyewitness who has narrated the entire story. According to this witness, on 08.03.2006 he along with Arjun Singh and others was returning after attending a marriage of his village. After sometime Kundan Singh (PW-4) also joined them. The witness further states that when they reached near Dewalchaura, accused Harish Chandra Singh, who was village Pradhan, met them at 8:00 p.m. According to this witness, the accused quarrelled with him (PW-3). He further states that he was given slaps, and abuses were heard at him. He further stated that his shirt got torn. PW-3 Sher Singh further states that in the incident Arjun Singh (deceased) asked Harish Chandra Singh not to quarrel. On this Harish Chandra Singh and Arjun Singh grappled, and Arjun Singh fell down on the ground and suffered an injury on the chin. The witness further states that Kundan Singh (PW-4) mediated and made Sher Singh and Arjun Singh to go ahead but again Harish Chandra Singh came and 9 knocked down Arjun Singh on the ground due to which Arjun Singh suffered further injuries. Thereafter Harish Chandra Singh started giving massage to Arjun Singh to save in. The witness further states that Harish Chandra Singh with the help of Kundan Singh (PW-4) took the injured Arjun Singh on the road and got informed Prem Singh (PW- 2), brother of the deceased. According to this witness, thereafter complainant Prem Singh (PW-2), accused Harish Chandra Singh and Sher Singh (PW-3) took the injured in a vehicle to hospital at Bagheshwar. Whereafter Harish Chandra Singh slipped from the hospital, and Prem Singh (PW-2) took the injured to Almora Hospital. 9. PW-4 Kundan Singh corroborates the prosecution story as narrated by PW-3 Sher Singh but he says that he himself did not see when Harish Chandra Singh knocked down Arjun Singh. 10. Having reassessed the entire oral and documentary evidence on record, we find that it is not proved that accused Harish Chandra Singh committed culpable homicide not amounting to murder, as defined in Exception 4 of Section 300. Exception 4 of Section 300 reads as under:- “Exception 4.- Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel 10 and without the offender having taken undue advantage or acted in a cruel or unusual manner.” 11. We have already discussed above that the quarrel in fact took place between (PW-3) Sher Singh and accused Harish Chandra Singh. After Arjun Singh (deceased) intervened to separate the two, sudden quarrel started between accused Harish Chandra Singh and the deceased. It is pertinent to mention here that accused Harish Chandra Singh was not armed with any weapon. The injury suffered on the head was due to the knocking down Arjun Singh by accused Harish Chandra Singh on the ground due to which he (Arjun Singh) suffered head injury. In the circumstances, it cannot be said that the accused acted in any cruel manner. That being so, we find it a case of para-2 of Section 304 IPC which provides that whoever commits culpable homicide not amounting to murder shall be punished “with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death”. Therefore, we are of the view that though the trial court has rightly convicted accused Harish Chandra Singh under Section 304 IPC, but his case is covered by para 2 of Section 304 IPC and not under para 1. Therefore, the appeal deserves to be allowed partly. 11 12. Accordingly, the appeal is partly allowed. Accused appellant Harish Chandra Singh is convicted under Section 304 para 2, and sentenced to rigorous imprisonment for a period of five years. The conviction recorded by the trial court stands converted/modified accordingly. The sentence awarded by the trial court stands set aside. The appellant is in jail. Let a copy of this judgment be sent to the Superintendent of the Jail concerned. The trial court record be sent back. (Nirmal Yadav, J.) (Prafulla C. Pant, J.) VKG 22.10.2010