RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No.37 of 2002 Naresh Pal Singh Chauhan S/o Chandan Singh, R/o Mohalla Daria Nagar, Kasba & P.S. Rudrapur, District Udham Singh Nagar …….….…. Appellant Versus State of Uttaranchal …………… Respondent Dated: December 23, 2008 Sri S.K. Mandal, Advocate for the appellant Sri M.A. Khan, brief holder 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 29.01.2002 passed by Sessions Judge, Udham Singh Nagar (Rudrapur) in S.T. No.244 of 2000, State Vs. Naresh Pal Singh and others, whereby the learned Sessions Judge has convicted the appellant/accused Naresh Pal Singh under Section 307 of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced him to five years’ R.I. with fine of Rs.3,000/- and in default of payment fine, one year’s further R.I. was awarded. Appellant/accused Naresh Pal Singh Chauhan was further convicted u/s 504 IPC and was sentenced to six months’ rigorous imprisonment. Both the sentences were directed to run concurrently. In case of realization of fine, an amount of Rs.500/- each was directed to be paid to the victim Nagar Chandra, Smt. Geeta, Sandhya and Laxmi. However, the appellant/accused was acquitted of the offence punishable u/s 506(II) IPC. Co- 2 accused Smt. Kanti Chauhan and Sonu Chauhan were also acquitted of the offences punishable under Sections 307/34, 504 and 506(II) IPC. 2. I have heard Sri S.K. Mandal, Advocate for the appellant/accused and Sri M.A. Khan, learned brief holder for the State and perused the entire material available on record. 3. In brief, the facts of the case are that P.W.1 Chetan lodged an FIR with the averments that he is the resident of Dariya Nagar behind Roadways Bus Stand, Rudrapur and in front of his house, appellant/accused Naresh Pal Singh was living. It was also stated that the complainant’s Dish T.V. Connection was not working properly due to which he made complaint to Cable Operator. On the complaint, the cable operator cut the wire from the house of appellant/accused Naresh Pal who was using the cable connection by theft. Due to this reason, appellant/accused Naresh Pal, his wife and his son Sonu was having enmity with the complainant. Appellant/accused and his family members also used to abuse the complainant and his family members. He further stated that on 6.8.1999 at about 6:00 P.M., appellant/accused Naresh Pal and his wife again started abusing. Complainant’s father tried to convince the appellant/accused with folded hands, however the appellant/accused did not agree to it and in state of anger, he asked his wife to get his gun. On this, complainant’s wife brought the gun and son of appellant/ accused namely Sonu came with an axe. Then, the appellant/accused Naresh Pal has fired from his licensed gun of 12 bore. At that time, complainant’s father and mother were standing on the gate of house and he along with his sisters was also present there. It was also stated that the appellant/accused, with intention to kill, has 3 attacked upon complainant’s father Nagar Chandra, mother Smt. Geeta and sisters Laxmi and Sandhya. It was also stated that somehow the complainant tried to save himself by hiding himself. It was also stated that due to the aforesaid attack, his father Nagar Chandra and mother Smt. Geeta were admitted in the hospital in serious condition. With the same averments, the FIR was lodged on 6.8.1999 at 6:50 P.M. at P.S. Rudrapur, Distt. U.S. Nagar by P.W.1 Chetan, i.e. Ex.Ka-1. On the basis of this FIR Ex.Ka-1, Chik FIR was prepared by Head Moharrir Jagdish Chandra Bhatt, i.e. Ex.Ka-2. The investigation of this case was entrusted to S.I. Sudesh Pal Singh. Injured Nagar Chand was medically examined by Medical Officer, J.L. Nehru Hospital, Rudrapur on 6.8.1999 at 7:05 P.M. and his injury report was prepared, i.e. Ex.Ka-5. Injured Smt. Geeta was medically examined on the same day at 7:10 P.M. by the same medical officer and her injury report is Ex.Ka-6. Likewise Smt. Laxmi was medically examined by the same medical officer on the same day at 7:20 P.M. and her injury report is Ex.Ka-7. Injured Smt. Sandhya was also medically examined on the same day by the same medical officer at 7:25 P.M. and her injury report is Ex.Ka-8. Supplementary report of injured Km. Sandhya is Ex.Ka-12, injured Smt. Laxmi is Ex.Ka-13, injured Nagar Chandra is Ex.Ka-14 and injured Smt. Geeta is Ex.Ka-15. The I.O. also took in his possession the SBBL 12 Bore gun and one Khokha cartridge 12 Bore as well as a licence and prepared a Fard, i.e. Ex.Ka-4. The above-said articles were also sent for chemical examination at Scientific Laboratory, Agra. The report given by Assistant Director, Scientific Laboratory, Agra is Ex.Ka.16 in which it has been stated that the cartridge in question was fired by the said SBBL gun of 12 bore. The I.O. during the course of investigation inspected the place of occurrence and prepared the site plan, i.e. 4 Ex.Ka-10. The genuineness of the documents viz. Chik FIR Ex.Ka-2, Fard Ex.Ka-4, injury report of injured Nagar Chandra Ex.Ka-5, injury report of injured Smt. Geeta Ex.Ka-6, injury report of injured Smt. Laxmi Ex.Ka-7, injury report of injured Km. Sandhya Ex.Ka-8, carbon copy of G.D. Ex.Ka.9, site plan Ex.Ka-10, supplementary report of injured Km. Sandhya Ex.Ka-12, supplementary report of injured Smt. Laxmi Ex.Ka-13, supplementary report of Nagar Chandra Ex.Ka-14, supplementary report of Smt. Geeta Ex.Ka-15 & charge sheet Ex.Ka-3, was admitted by the defence counsel. During the course of investigation, the I.O. recorded the statements of witnesses and after completing the investigation, he filed the charge sheet, i.e. Ex.Ka-3. 4. Learned Chief Judicial Magistrate, U.S. Nagar appears to have committed the case to the court of Sessions on 20.7.2000 after giving necessary copies to the appellant/accused and other co-accused as required under section 207 Cr.P.C. 5. On 22.11.2000, learned Sessions Judge, U.S. Nagar framed charge against the appellant/accused Naresh Pal Singh and also against co-accused Smt. Kanti Chauhan and Sonu (acquitted by the trial court) under Sections 307/34 IPC, 504 IPC and 506(II) IPC. The charge was read over and explained to the accused persons, who pleaded not guilty and claimed to be tried. 6. To prove its case, the prosecution has examined P.W.1 Chetan Kumar, complainant of the case, P.W.2 Km. Sandhya, injured witness and P.W.3 Smt. Laxmi, also an injured witness of the case. 7. Thereafter, the statement of the appellant/ accused Naresh Pal Singh as well as the statements of co- 5 accused Smt. Kanti Chauhan and Sonu (acquitted by trial court) were recorded u/s 313 of Cr.P.C. The oral and documentary evidence was put to each of them in question form, who denied the allegations made against each of them and stated that they have been falsely implicated. However, they did not produce any oral or documentary evidence in their defence. 8. After appreciating the evidence on record and hearing learned counsel for the parties, the learned Sessions Judge, U.S. Nagar vide his judgment and order dated 29.01.2002 convicted and sentenced the appellant/ accused as discussed above. Against the aforesaid judgment and order, the appellant/accused has preferred the present appeal. 9. Before further discussion, it is pertinent to mention that injured Nagar Chandra was medically examined on 06.08.1999 at 7:05 P.M. by Medical Officer, J.L. Nehru Hospital, Rudrapur and his medical report was also prepared i.e. Ex.Ka-5, which reads as under: - 1. Multiple punctured wounds present over left scapula, varying in size, probing is not done. Patient kept under observation, advised x-ray Left Scapula 2. Single punctured wound present in front of left Ear lobule size .5 x .25 cm, probing is not done. Patient kept under observation, advised x-ray of left ear. 3. Single punctured wound present in front of right fire arm just below the elbow joint measuring 5x 5cm, probing is not done. Patient kept under observation, advised x-ray of right forearm. 6 Opinion-Patient kept under observation, advised x-ray. Supplementary report is given after x-ray report. Injuries are fresh in duration. On the same day i.e. on 6.8.1999 at 7:10 P.M., injured Smt. Geeta was medically examined by the same medical officer and following injuries were found in her injury report (Ex.Ka-6): - 1. Punctured wound present in front of right breast just above .5 x .5 cm, probing is not done. No bleeding, no charring. Kept under observation, advised x-ray of chest. Fresh in duration. 2. Punctured wound present in front of right abdomen 6 cm. lateral of right abdomen, measuring .5 x .5 cm, no blackening, no charring. Advised x-ray of abdomen 3. Punctured wound present in front of left thigh measuring .5 x .5 cm. probing is not done. 6 cm above left knee joint, fresh in duration. Opinion-All injuries kept under observation. Advised x- ray, fresh in duration. Injured Smt. Laxmi was also medically examined on the same day i.e. on 6.8.1999 at 7:20 P.M. and following injury was found in her injury report (Ex.Ka-7): - “Punctured wound present just above the left elbow joint, measurements varying in size. Probing is not done. Fresh in duration, advised x-ray left elbow joint. No blackening, no charring” Opinion- Injuries kept under observation, advised x-ray, fresh in duration. 7 Injured Km. Sandhya was also medically examined on the same day on 6.8.1999 at 7:25 P.M. and the medical officer found the following injury in her injury report (Ex.Ka-8): - Punctured wound present in front of left thigh, situation 13 cm above the left knee joint, measuring .5 x .5 cm, probing is not done. No blackening, no charring, fresh in duration. Advised x-ray of left thigh Opinion- injuries were kept under observation. Advised x- ray, fresh in duration. After that the supplementary report (Ex.Ka-12) of injured Km. Sandhya was also prepared which reads as under: - X-ray report show- No boney injury is seen. Supplementary report (Ex.Ka-13) of injured Smt. Laxmi is also reproduced as under: - X-ray shows- two radiopaque shadow seen in left elbow region. Opinion-Injury which kept under observation is caused by firearm, simple in nature. Supplementary report (Ex.Ka-14) of injured Nagar Chandra is reproduced as under: - X-ray report shows (1) Radiopaque shadow (one) seen in left scapula (2) One radiopaque shadow seen in left mastoid area (3) One radiopaque shadow seen in right forearm. Opinion-Injury which kept under observation are fire arm injury, simple in nature 8 Supplementary report (Ex.Ka-15) of injured Smt. Geeta also reads as under: - X-ray shows (1) Radiopaque shadow seen in right lower join. (2) No radiopaque shadow seen (3) One radiopaque shadow seen in left thigh, lower part Opinion-Injury which kept under observation is caused by firearm, simple in nature. 10. To prove its case, the prosecution got examined P.W.1 Chetan Kumar, who has stated that appellant/ accused Naresh Pal Singh and co-accused Kanti Devi and Sonu (acquitted by trial court) were known to him. The house of appellant/accused is in front of his house. Due to the reason that the cable was not properly coming at his house, he made a complaint to the cable operator. On this, when the cable operator came to mend the cable connection, he came to know that the appellant/accused had taken the dish wire by theft. Then the cable operator cut the wire from the house of appellant/accused and took the same with him. Due to this reason, appellant/accused and co-accused persons were having enmity with him and they were under the impression that this fact had been told to the cable operator by him and the appellant/accused and co-accused persons also used to abuse him. On 6.8.1999 at about 6:00 P.M. he was in his house. At that time, appellant/accused Naresh Pal started abusing him and his family members. His father tried to convince the appellant/ accused with folded hands but he (Naresh Pal) did not agree to it and asked his wife Smt. Kanti Devi to bring his 9 gun and then co-accused Kanti Devi (acquitted by trial court) brought the gun from her house and gave the same to the appellant/accused. Son of appellant/accused namely Sonu had also come out along with an axe. Appellant/ accused Naresh Pal with the intention to kill him (Chetan Kumar) and his family members, fired on them due to which his mother Smt. Geeta, father Nagar Chandra and sisters Sandhya and Laxmi sustained injuries. With the help of people of locality, he took the injured persons at the police station from where they were sent to the hospital. The report of this incident was dictated by him to Ashwin Kumar and he also proved the same, i.e. Ex.Ka-1. 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. 11. P.W.2 is Km. Sandhya who has stated that appellant/ accused Naresh Pal Singh and co-accused Kanti Devi and Sonu (acquitted by trial court) were known to her, whose residence is in front of her house. Cable connection was installed in her house. Appellant/accused took the cable wire in his house by wrong means and this fact she along with her family members came to know when the cable operator came to mend the cable connection. Cable operator after cutting the wire from the house of appellant/accused, took the same with him and due to this reason, appellant/ accused and co-accused persons were having enmity with them. On 6.8.1999 at about 6:00 P.M., she was standing at the door of her house and near to him, her mother Smt. Geeta, father Nagar Chandra, sister Laxmi and brother Chetan were also standing there. 10 Appellant/accused Naresh Pal Singh started abusing them. Her father made request not to abuse but the appellant/accused did not agree. Appellant/accused Naresh Pal asked his wife to bring the gun from the house on which his wife brought the gun and gave the same to his husband. Son of appellant/accused came with an axe. Appellant/accused made a fire upon her, her sister Laxmi, mother Smt. Geeta and father Nagar Chandra with the intention to kill them. She also stated that they were medically examined at Govt. Hospital, Rudrapur and their x-ray was also conducted. This witness was also cross- examined at length by the defence counsel but nothing has come out in her statement which may create any doubt in her statement. The statement of this witness is also reliable and believable. 12. P.W.3 is Smt. Laxmi who has stated that appellant/ accused Naresh Pal Singh and co-accused Kanta Devi and Sonu (acquitted by trial court) were known to her, whose residence is in front of her residence. On 6.8.1999 at about 6:00 P.M., she along with her mother, father, sister Sandhya and brother Chetan were standing at the gate of her house. Appellant/accused Naresh Pal Singh started to abuse. Her father requested the appellant/accused with folded hands not to abuse, but he did not agree and asked his wife to bring his gun and then his wife brought the gun and gave the same to appellant/accused. Son of appellant/ accused had also come with an axe. Appellant/accused Naresh Pal Singh made a fire with the intention to kill due to which she, her sister Sandhya and her mother and father sustained injuries. Then with the help of people of locality, she and other injured persons were taken at P.S. Rudrapur 11 and then the police persons sent them at Govt. Hospital, Rudrapur where they were medically been examined and x- ray was also conducted. Her x-ray was also conducted. This witness was also cross-examined at length by the defence counsel but nothing has come out in her statement which may create any doubt in her evidence. The statement of this witness is also reliable and believable. 13. Thereafter, the statement of the appellant/ accused Naresh Pal Singh as well as the statements of co- accused Smt. Kanti Chauhan and Sonu (acquitted by trial court) were recorded u/s 313 of Cr.P.C. The oral and documentary evidence was put to each of them in question form, who denied the allegations made against each of them and stated that they have been falsely implicated due to enmity. However, they did not produce any oral or documentary evidence in their defence. 14. Sri S.K. Mandal, learned counsel for the appellant /accused argued that as per the evidence discussed above, the case against the appellant/accused is not proved by the prosecution beyond reasonable doubt. I do not find any force in the argument advanced by counsel for the appellant/accused as P.W.1 Chetan Kumar, complainant and eyewitness of the case, has stated in his evidence that due to the reason that the cable was not coming properly at his house, he made a complaint to the cable operator. On this, when the cable operator came to mend the cable connection, he came to know that the appellant/accused Naresh Pal Singh had taken the dish wire by theft. Then the cable operator cut the wire from the house of appellant/ accused and took the same with him. Due to this reason, appellant/accused was having enmity with him and he was 12 under the impression that this fact had been told to the cable operator by him and the appellant/accused also used to abuse him. On 6.8.1999 at about 6:00 P.M. he was in his house. At that time, appellant/accused Naresh Pal started abusing him and his family members. His father tried to convince the appellant/accused with folded hands but he (Naresh Pal) did not agree to it and asked his wife Smt. Kanti Devi to bring his gun and then co-accused Kanti Devi brought the gun from her house and gave the same to the appellant/accused. Son of appellant/accused namely Sonu had also come along with an axe. Appellant/accused Naresh Pal with the intention to kill him (Chetan Kumar) and his family members, with the said gun fired on them due to which his mother Smt. Geeta, father Nagar Chandra and sisters Sandhya and Laxmi sustained injuries. With the help of people of locality, he took the injured persons at the police station from where they were sent to the hospital. The report of this incident was dictated by him to Ashwin Kumar and he also proved the same, i.e. Ex.Ka-1. The evidence of this witness is reliable, believable and natural and inspires confidence and the same is also fully corroborated with the evidence of P.W.2 Km. Sandhya and P.W.3 Smt. Laxmi. The evidence of P.W.1 Chetan Kumar is also corroborated with the injury reports of injured Nagar Chandra (Ex.Ka-5), injured Smt. Geeta as Ex.Ka-6, injured Smt. Laxmi as Ex.Ka.7 and injured Km. Sandhya as Ex.Ka.8 as well as with the supplementary reports of injured Km. Sandhya as Ex.Ka.12, injured Smt. Laxmi as Ex.Ka-13, injured Nagar Chandra as Ex.Ka-14 and injured Smt. Geeta as Ex.Ka-15. Besides this, the evidence of P.W.1 Chetan Kumar is also corroborated with the report given by Assistant Director, Scientific Laboratory, Agra who 13 stated in his report (Ex.Ka.16) that the cartridge in question was fired by the said SBBL gun of 12 bore. Thus, as per the evidence discussed above, it is proved that the appellant/accused Naresh Pal Singh has fired upon Nagar Chandra, Smt. Geeta, Km. Sandhya, Smt. Laxmi and Chetan Kumar with such intention and knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder. As such, the offence punishable u/s 307 IPC is proved by the prosecution beyond reasonable doubt against the appellant/ accused. 15. Thus, from the evidence discussed above, the prosecution has fully proved its case against the appellant/ accused beyond reasonable doubt u/s 307/504 of IPC and I concur with the view taken by the trial court in convicting and sentencing the appellant/accused Naresh Pal Singh as discussed above. 16. For the reasons recorded above, the appeal is devoid of merits and is accordingly dismissed. The judgment and order dated 29.1.2002 passed by Sessions Judge, U.S. Nagar in S.T. No.244/2000, State Vs. Naresh Pal Singh and others, is hereby affirmed. Appellant/accused Naresh Pal Singh is on bail. His bail is cancelled. Let him be taken into custody forthwith in order to serve out the sentence as awarded against him. 17. Let a copy of this order be sent to the trial court concerned for compliance of the order forthwith. (Dharam Veer, J.) December 23, 2008 Rajeev Dang