IN THE HIGH COURT OF UTTARAKHAND AT HARIDWAR CRIMINAL APPEAL No. 1505 of 2001 (Old No. 470/1999) Bhola @ Devendra Versus .…. Appellant/Accused State …………… Respondent May 14, 2010 Mr. RP Nautiyal, Advocate for the appellant. Mr. Amit Bhatt, Addl. GA for the State/respondent. HON’BLE DHARAM VEER, J. This appeal, preferred by the appellant under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.), is directed against the judgment and order dated 12.3.1999 passed by the Sessions Judge, Haridwar in Sessions Trial No. 240 of 1998, State v. Devendra @ Bhola, whereby the accused appellant Devendra @ Bhola has been convicted under Section 307 of Indian Penal Code, 1860 (for short, IPC) and sentenced to undergo R.I. for five years. However, co- accused Nathe Ram has been acquitted of the charge of offence punishable under Section 307/120-B, IPC. 2. In brief, the prosecution case is that PW3 Jaypal Singh lodged an FIR Ex. Ka-2 with PS Shyampur on 25.2.1998 at 6.10 pm with the averments that in the evening of 24.2.1998 his brother Rajpal Singh (PW1) after having his meal had gone to safeguard the field. Bhola (accused appellant) of his village who was having an old enmity with them had assaulted his brother Rajpal Singh with intention to kill him with a knife on his neck at about 9 pm on that day. His brother received deep cut injury in his neck and when he tried to save himself, the fingers of his left hand got severely cut. When his brother raised an 2 alarm, then many people from the adjacent fields including Ram Kishan (PW4) and Ved Prakash (PW5) came at the place of occurrence and on seeing them, the accused appellant ran away from the spot. The complainant admitted his injured brother in the Government Hospital at Haridwar. Thereafter he lodged the report Ex. Ka-2 along with the medical report Ex. Ka- 1, while his injured brother was still in the hospital. On the basis of his report, chick FIR Ex. Ka-3 was prepared by Constable Clerk Jaipal Singh (PW6). He also made the necessary entries in the GD, copy of which is Ex. Ka-4. Investigation of this case was entrusted to PW7 SI Data Ram. The injured Rajpal Singh (PW1) was medically examined by PW2 Dr. Rajeev Verma on 25.2.1998 at 1 am, who also prepared the medical report Ex. Ka-1. The I.O. during the course of investigation inspected the place of occurrence and prepared the site plan Ex. Ka-5. He also took into possession the bloodstained clothes, viz., baniyan, shirt, trouser of the injured Rajpal Singh (PW1) and prepared the fard Ex. Ka-6. The I.O. during the course of investigation recorded the statements of the witnesses and after completing the investigation he filed the chargesheet Ex. Ka-7 against the co-accused Nathe Ram (acquitted by the trial court) and against the accused appellant as an absconder. The accused appellant surrendered himself before the court on 28.4.1998 and thereafter his statement was recorded with the permission of court and thereafter he filed the supplementary chargesheet Ex. Ka-8 against the accused appellant. 3. Learned II Additional Civil Judge (Jr. Div.)/Judicial Magistrate, Haridwar after giving the necessary copies of the documents to the accused appellant and the co- accused (acquitted by the trial court) as prescribed under 3 Section 207 CrPC, committed the case to the Court of Sessions on 3.8.1998. 4. On 2.9.1998, learned Sessions Judge, Haridwar framed the charge against the accused appellant under Section 307 IPC. The charge was read over and explained to the accused appellant, who pleaded not guilty and claimed to be tried. On 10.3.1999, learned Sessions Judge, Haridwar framed the charge against the co- accused Nathe Ram (acquitted by the trial court) under Section 120-B, IPC. The charge was read over and explained to the co-accused, who pleaded not guilty and claimed to be tried. 5. To prove its case, the prosecution has examined PW1 Rajpal Singh, injured witness; PW2 Dr. Rajeev Verma, who medically examined the injured Rajpal Singh and prepared the medical report Ex. Ka-1; PW3 Jaypal Singh, the complainant; PW4 Ram Kishn, an eyewitness; PW5 Ved Prakash, also an eyewitness; PW6 Constable Clerk Jaipal Singh, who prepared the chick FIR Ex. Ka-3 and also made the necessary entries in the GD, copy of which is Ex. Ka-4 and PW7 SI Data Ram, the I.O. of the case. 6. Thereafter, statements of the accused appellant and the co-accused (acquitted by the trial court) 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 Sessions Judge, Haridwar vide his judgment and order dated 12.3.1999 convicted and sentenced to the 4 accused appellant as discussed above. Against the aforesaid judgment and order dated 12.3.1999, the accused appellant has preferred the present appeal. 8. I have heard learned Counsel for the parties and have carefully perused the entire material available on the record. 9. Before any further discussion, it would be pertinent to mention the injuries found on the body of injured Rajpal Singh (PW1) as mentioned in the medical report Ex. Ka-1 prepared by PW2 Dr. Rajeev Verma, who had medically examined the injured on 25.2.1998 at 1 am and the same are reproduced as below: “(1) Incised wound placed transverse, size 15 x 4 cm, just at the level of Adam’s Apple, profuse bleeding, trachea open, mucous discharge coming out. Injury K.U.O. Referred to ENT Surgeon. (2) Multiple incised wound on palmer aspect of all 4 index, ring, middle and little finger at terminal phalynx, size 1.5 x 0.2 cm, fresh bleeding present. K.U.O. Pt. GC Low. BP 90/70 mmHg. Pt. conscious. Admitted. Nature—Both injures K.U.O. Caused by sharp object. Duration fresh (less than 6 hrs.).” 10. To prove the aforesaid medical report Ex. Ka-1 the prosecution has examined PW2 Dr. Rajeev Verma, who has proved the contents of same and has further stated that on 25.2.1998 at 1 am, he was on the emergency duty and he had medically examined the injured Rajpal Singh. The injuries were fresh and were caused with sharp edged weapon. His bronchial tube was broken and excessive blood was oozing out. This injury no. (1) could have been dangerous to life. The injuries could have been caused with a knife at 9 pm on 24.2.1998. 5 11. To further prove its case, the prosecution has examined PW1 Rajpal Singh, the injured witness, who in his statement recorded on 6.1.1999 has stated that about 11 months ago, he had gone to safeguard his filed. It was about nine o’clock in the night. The accused appellant met him there who blamed him that he was being maligned by him by connecting him with the wife of Nathe (co-accused who has been acquitted by the trial court) and threatened him that he would be taught a lesson on that day itself. When this dressing-down was going on, this witness was warming himself in front of a fire. The fire was well- lightened. The accused appellant assaulted him with a knife and caused injures in his neck and left hand. On hearing the alarm raised by this witness, PW4 Ram Kishan and PW5 Ved Prakash (Ved Ram) came at the place of occurrence and they were having torch which was on. The accused appellant ran away on coming these witnesses at the place of occurrence. This witness has further stated that he received deep cut in his neck because of the said assault with a knife and he had got 23 stitches. All the four fingers of his left hand were severely cut. Ved Ram and Ram Kishan covered his neck with clothe and brought him home. Thereafter 5-10 villagers gathered there who managed a vehicle and thereafter he was brought to a hospital at Haridwar. He remained admitted in the hospital for 40 days. He had narrated the incident to his brother Jaypal Singh, the complainant (PW3). He has further stated that he was having old enmity with the accused appellant and the co- accused (acquitted by the trial court). Co-accused Nath was engaged in smuggling of liquor and his wife was a bad character lady. Nathe became angry when he tried to make him understand. Despite searching lengthy cross- examination, the defence Counsel has failed to elicit any 6 material to shatter and discredit the testimony of this witness. His statement is reliable, believable and inspire the confidence. 12. PW3 Jaypal Singh, the complainant has reiterated the version made by him in the FIR Ex. Ka-2 and has further stated that the incident took place on 24.2.1998. He was at his house at the time of incident. PW4 Ram Kishan and PW5 Ved Ram (Ved Prakash) had brought his brother Rajpal Singh to home. It was about nine o’clock. There were severe injuries in the neck of his brother. He was also having injuries in his hand. He was unconscious at that time. His brother was brought to Harmilap Hospital, Haridwar in a bus. He regained his consciousness in the next morning. Thereafter he narrated the entire incident of the previous night. Thereafter he lodged the report Ex. Ka-2. 13. PW4 Ram Kishan and PW5 Ved Prakash (Ved Ram) are the eyewitness of the said incident and they have also corroborated the statement made by PW1 Rajpal Singh, the victim of this case. They also could not be shaken in their cross-examination done by the defence Counsel. 14. PW6 Jaipal Singh has stated that on 25.2.1998, he was posted as a Constable Clerk in PS Shyampur. On that day, he had prepared the chick FIR Ex. Ka-3 on the basis of the report Ex. Ka-2. He had also made the necessary entries in the GD, copy of which is Ex. Ka-4. 15. PW7 SI Data Ram has stated that on 25.2.1998, he was posted in PS Shyampur. The report was lodged in his presence. The 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-5. 7 He also took into possession the bloodstained baniyan, shirt and trouser of injured Rajpal Singh and prepared a fard Ex. Ka-6. He recorded the statements of the witnesses. The accused appellant was absconding. After completing the investigation, he filed the chargesheet Ex. Ka-7 against the co-accused Nathe Ram (acquitted by the trial court) and against accused appellant as an absconder. The accused appellant surrendered himself before the court on 28.4.1998 and thereafter his statement was recorded with the permission of court and thereafter he filed the supplementary chargesheet Ex. Ka- 8 against the accused appellant. 16. Thereafter, statements of the accused appellant and the co-accused (acquitted by the trial court) 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. 17. Learned Counsel for the accused appellant argued that on the basis of the evidence discussed above, the prosecution has not proved the case against the accused appellant beyond reasonable doubt. I do not find any substance in the argument of the learned Counsel for the accused appellant due to the following reasons: (i) That as per the statement of PW1 Rajpal Singh, the injured witness, on the date of incident i.e. on 24.2.1998 at about 9 pm, he had gone to safeguard his filed. The accused appellant met him there and blamed him that he was being maligned by him by this witness by connecting him with the wife of Nathe (co-accused who has been acquitted by the trial court) and he threatened him that he would immediately be 8 taught a lesson. When this dressing-down was going on, this witness was warming himself in front of a fire. The fire was well-lightened. The accused appellant assaulted him with a knife with intention to kill him and caused injures in his neck and in his left hand. On hearing the alarm raised by this witness, PW4 Ram Kishan and PW5 Ved Prakash (Ved Ram) came at the place of occurrence, who were having torch which was on. The accused appellant ran away when these witnesses came at the place of occurrence. This witness has further stated that he received deep cut in his neck in the said assault with a knife and he had got as many as 23 stitches in his neck. All the four fingers of his left hand were severely cut. Ved Ram and Ram Kishan covered his neck with clothe and brought him home. Thereafter he was brought to a hospital at Haridwar. He remained admitted in the hospital for 40 days. In the hospital, he had narrated the incident to his brother Jaypal Singh, the complainant (PW3). He has further stated that he was having an old enmity with the accused appellant. 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 PW1 Rajpal Singh is fully corroborated by other two eyewitnesses, viz., PW4 Ram Kishan and PW5 Ved Prakash (Ved Ram). (iii) That the incident took place at about 9 pm on 24.2.1998 and the report was lodged on the 9 25.2.1998 at 6.10 pm and the distance between the place of occurrence and the police station is about 14 kms. Therefore, in the circumstances stated above, the FIR was also lodged promptly as the injured Rajpal Singh had got severe injuries in his neck and left hand. He was brought to his house by Ram Kishan and Ved Prakash. He was unconscious at that time. He was brought to the hospital in the same night and was medically examined at 1 am in the said night. He regained his consciousness on the next day of the said incident and thereafter narrated the entire incident to his brother Jaypal Singh (PW3) who subsequently lodged the report. (iv) That two eyewitnesses Ram Kishan and Ved Prakash (Ved Ram) were named in the FIR Ex. Ka-2 and both of them have been examined by the prosecution as PW4 and PW5 respectively and these eyewitnesses have also supported the case of prosecution. None of them could be shaken on any point in their cross-examination. (v) That as per the medical report Ex. Ka-1 prepared by PW2 Dr. Rajeev Verma, who had medically examined the injured Rajpal Singh in the night of 24/25.2.1998 at 1 am, the injured Rajpal Singh had suffered grievous injuries in his neck and left hand which were dangerous to life. His bronchial tube was broken. There was profuse bleeding. It could have been dangerous to life. The injuries were fresh and could have caused by some sharp edged weapon on that day at about 9 pm. Thus, the ocular version of evidence adduced by the prosecution is well- corroborated by the medical evidence. 10 18. 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 appellant beyond reasonable doubt for the offence punishable under Section 307 IPC and, therefore, the impugned judgment and order of the learned trial court is justified and correct and the same is liable to be upheld. 19. In the result, the appeal being devoid of merit is hereby dismissed. The judgment and order dated 12.3.1999 passed by the Sessions Judge, Haridwar in Sessions Trial No. 240 of 1998, State v. Devendra @ Bhola & Anr., convicting the accused appellant Bhola @ Devendra under Section 307 IPC is hereby upheld and sentenced to undergo R.I. for five years is also affirmed. The appellant is on bail. His bail bond is cancelled. He shall be taken into custody forthwith to serve out the aforesaid sentence. However, the period during which the accused appellant was in jail during investigation, trial and appeal shall be adjusted after verifying the same from the records. 20. Copy of this judgment and order be sent to the trial court for its compliance. Let the trial court record be sent back. PRABODH (Dharam Veer, J.) 14.5.2010