RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No.759 of 2001 (Old No.821 of 1991) Vikram S/o Man Singh, R/o Village Baleki, P.S. Bhagwanpur, District Hardwar …….….…. Appellant Versus The State …….….… Respondent Dated: December 26 , 2008 Sri M.S. Chauhan, learned Amicus Curiae for the appellant Sri M.A. Khan, learned Brief Holder for the State HON. DHARAM VEER, J. This appeal, preferred by the appellant u/s 374(2) of Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 12/15.04.1991 passed by Sessions Judge, Hardwar in Sessions Trial No.81 of 1990, State Vs. Vikram, whereby the learned Sessions Judge has convicted the appellant/accused Vikram under Section 307 of Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced him to four years’ rigorous imprisonment. 2. I have heard Sri M.S. Chauhan, learned Amicus Curiae for the appellant and Sri M.A. Khan, learned Brief Holder for the State and perused the entire material available on record. 3. In brief, the prosecution case is that P.W.1 Mahipal Singh lodged an FIR with the averments that on 2.11.1989 at about 7:00 P.M., he was coming to his village from village Baleki after taking BIDI and as soon 2 as he came near the garden, then on the way, appellant/ accused Vikram met him and asked the complainant that why he had employed his (appellant’s) mother and why he did not allow his mother to come back at her house. Then the complainant told the appellant/accused to enquire this fact from his mother. On this, the appellant/ accused started abusing the complainant. On hearing the abuses of appellant/accused, Satya Pal (P.W.2) and Vijendra (P.W.3) came there. When the complainant stopped him to do so, then the appellant/ accused, with the intention to kill the complainant, caused injury in his left abdomen with knife due to which his intestine came out. Then, the complainant along with other witnesses tried to snatch the knife and in the process of scrambling, complainant also received injuries in his fingers and palm. Then, the complainant came at the government hospital, Roorkee and after getting the report scribed, he sent the same to In-charge Police Station Bhagwanpur, Distt. Hardwar, i.e. Ex.Ka-1. On the basis of this report Ex.Ka-1, H.M. Sultan Singh (P.W.10) prepared the CHIK FIR of the case on 3.11.1989 at 00:30 A.M., i.e. Ex.Ka-8. The necessary entry was also made by him in the G.D., the carbon copy of G.D. is Ex.Ka-9. The investigation of this case was entrusted to S.I. Babu Ram Yadav (P.W.11). The I.O. also recovered the bloodstained clothes of the injured Mahi Pal (P.W.1) and prepared a FARD, i.e. Ex.Ka-2. The I.O. on the pointing out of appellant/accused, also got discovered the knife from the bushes which was used in the aforesaid crime and prepared a Fard, i.e. Ex.Ka-3. Initially, injured Mahi Pal Singh was medically examined on 2.11.1989 at 8:20 P.M. by P.W.7 Dr. Arun Kumar and injury report prepared by him is Ex.Ka-7. After that, the 3 victim Mahi Pal Singh was medically examined on the same day i.e. on 2.11.1989 at 11:00 P.M. by P.W.6 Dr. Rajendra Pal and his injury report was prepared, i.e. Ex.Ka-4. Supplementary report of injured Mahi Pal was also prepared, i.e. Ex.Ka-5. The I.O. during the course of investigation inspected the place of occurrence and prepared the site plan, i.e. Ex.Ka-11. The I.O. also prepared the site plan of the place from where the knife was recovered, i.e. Ex.Ka-12. During the course of investigation, the I.O. recorded the statements of witnesses and after completing the investigation, he filed the charge sheet against the appellant/accused Vikram, i.e. Ex.Ka-13. 4. Learned ACJM, Roorkee appears to have committed the case to the court of Sessions on 07.05.1990 after giving necessary copies to the appellant/accused as required under Section 207 Cr.P.C. 5. On 23.05.1990, learned Sessions Judge, Hardwar framed the charge against the appellant/ accused Vikram under Section 307 IPC. The charge was read over and explained to the appellant/accused, who pleaded not guilty and claimed to be tried. 6. To prove its case, the prosecution has examined P.W.1 Mahipal Singh, injured; P.W.2 Satya Pal, eyewitness; P.W.3 Vijendra, eyewitness; P.W.4 Om Pal, witness of recovery of knife; P.W.5 Narendar Kumar, scriber of FIR; P.W.6 Dr. Rajendra Pal, who medically examined the injured; P.W.7 Dr. Arun Kumar, who firstly examined the injured; P.W.8 Contable Balvir Singh, also a witness of recovery of knife; P.W.9 Jagvir Singh, who produced the report in the police station; 4 P.W.10 H.M. Sultan Singh, who prepared CHIK FIR and made entry in G.D. and P.W.11. S.I. Babu Ram Yadav, I.O. of the case. 7. Thereafter, the statement of the appellant/ accused Vikram was recorded u/s 313 of Cr.P.C. The oral and documentary evidence was put to him in question form. He has denied the allegations made against him. However, in defence, he did not produce any oral or documentary evidence. 8. After appreciating the evidence on record and after hearing learned counsel for the parties, learned Sessions Judge, Hardwar vide his judgment and order dated 12/15.04.1991 convicted and sentenced the appellant/accused u/s 307 IPC to four years’ R.I. Feeling aggrieved with the aforesaid judgment and order, the appellant/accused has preferred the present appeal. 9. Before further discussion, it is pertinent to mention the injuries found on the person of injured Mahi Pal Singh who was initially examined by P.W.7 Dr. Arun Kumar on 2.11.1989 at 8:20 P.M. The injuries recorded in injury report (Ex.Ka-7), reads as under: - 1. Incised stab wound 3 cm x 1.5 cm over left flank. Piece of omentum about 12 cm x 8 cm protruding cut through the wound. 2. Incised wound 2 cm x 1/4 cm x muscle deep over right palm in middle 3. Incised wound 1.5 cm x 1/4 cm x skin deep over palmer aspect of right little finger, 1 cm below the tip of finger 4. Incised wound 1.5 cm x 1/2 cm x muscle deep over palmer aspect of left index finger 1 cm below the tip 5 All the wounds are caused by sharp edged weapon. The first one is stab. Injuries 2-4 are simple. No.1 may be dangerous to life. The patient is referred to Saharanpur Hospital for management. 10. To prove the aforesaid injury report (Ex.Ka-7), the prosecution has examined P.W.7 Dr. Arun Kumar who has stated that on 2.11.1989, he was posted in Civil Hospital, Roorkee and on that day at 8:20 P.M. he had medically examined the injured Mahi Pal Singh (P.W.1) and recorded the injuries which have been noted above. He has further stated that all the injuries could be possible to come on 2.11.1989 at about 7 P.M. 11. After that on the same date i.e. on 2.11.1989 at 11:00 P.M., injured Mahi Pal was further medically examined by P.W.6 Dr. Rajendra Pal and following injuries were found in his injury report (Ex.Ka-4), which are reproduced as below: - 1. Stab piercing wound at left flank abdomen, margins sharp, fresh bleeding positive omentum, coming out from the wound 3 cm x 1.5 cm, fresh bleeding positive, 2. Incised wound 2 cm x 1/4 cm. at the middle of right palm 3. Incised wound 1.5 cm x 1/4 cm on the palmer aspect of right little finger 4. Incised wound 1.5 cm x 1/2 cm x muscle deep over palmer aspect of left index finger, 1 cm below the tip Nature of injury No.1 dangerous, others simple, duration is fresh, caused by sharp piercing weapon like Knife. 6 Later on, the supplementary report of injured Mahi Pal Singh (Ex.Ka-5) was also prepared by P.W.6 Dr. Rajendra Pal, which reads as under: - “Stab injury of ilium closed in layers. Sharp edged piercing wound on left side flank of abdomen through and through closed in layers. 3 drainage tubes placed in sites. Abdomen closed in layers.” 12. To prove the aforesaid injury report (Ex.Ka-4) and supplementary report (Ex.Ka-5), the prosecution got examined P.W.6 Dr. Rajendra Pal, who has stated that on 2.11.1989 at 11:00 P.M., he had medically examined the injured Mahi Pal Singh and recorded the injuries which have been noted above. He also proved the injury report prepared by him i.e. Ex.Ka-4. Thereafter, on 3.11.1989 at 5:00 A.M., he conducted the operation of injured Mahi Pal Singh and then prepared the supplementary report. He also proved the same, i.e. Ex.Ka-5. He also proved the register Ex.Ka-6 in which the entry about Mahipal Singh was made by him. The said register was also seen by S.I. B.R. Yadav and then the same was given in his Supurdgi. 13. To further prove its case, the prosecution has examined P.W.1 Mahi Pal, who has stated that on 2.11.1989 at about 7:00 P.M., he was going to take BIDI and while returning, appellant/accused Vikram met him. Appellant/accused asked him that why he had employed his (appellant’s) mother. Then he asked the appellant/accused to enquire this fact from his mother. Then, the appellant/accused started abusing him. After that Satya Pal (P.W.2) and Vijendra (P.W.3) also came 7 on the spot and then appellant/accused caused injury with knife in his left abdomen due to which he became unconscious on the spot. Thereafter, he was taken to Govt. Hospital, Roorkee from where he was referred to Saharanpur. Then, he was taken to Dr. Pratap Singh at Roorkee and after that he was referred to Dr. Rajendra Pal (P.W.6). Thereafter, his operation was conducted both by Dr. Rajendra Pal and Dr. Pratap. He got the report scribed by Narendra of this incident and the report was sent to the Police Station Bhagwanpur by his sister’s husband Jagvir (P.W.9). He also proved the said report, i.e. Ex.Ka-1. He also stated that the S.I. came in the hospital and recorded his statement. Spots of blood were also there in his clothes and these bloodstained clothes were taken by the I.O. and then he (S.I.) sealed them. 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. 14. P.W.2 is Satya Pal who has stated that Mahi Pal and appellant/accused Vikram were known to him. On 2.11.1989 at about 7:00 P.M. near a garden, when he along with Vijendra (P.W.3) was coming from the forest then they saw that appellant/accused Vikram was abusing Mahipal (P.W.1). When Mahipal stopped the appellant/accused to abuse, then appellant/accused Vikram caused injury with knife to Mahipal at his left abdomen due to which intestine came out and then Mahipal got nervous. When Mahipal tried to snatch the knife then Mahipal also received knife injuries in his hand. He and Vijendra also tried to intervene but they got scared by seeing the knife. Mahi Pal had come in the village along with them and Mahi Pal was semi- 8 conscious. Appellant/accused then run away after the incident. After that injured Mahipal was taken to Govt. Hospital, Roorkee in a tractor by them. After the medical examination, the doctor has referred the injured to Saharanpur. At about 8:30 P.M., injured Mahipal was taken to Dr. Pratap and then Dr. Pratap also referred him for Dr. Rajendra Pal (P.W.6) where he was admitted. After that at 4:30 A.M., S.I. came in the nursing home of Dr. Rajendra Pal where his statement was also recorded. After that Mahipal was taken for operation. On 3.11.1989 at about 8:30 A.M. he along with S.I. came at his village. Thereafter, he took the S.I. at the place of occurrence and informed about the entire incident where the S.I. prepared the site plan etc. This witness was also 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 also reliable and believable. 15. P.W.3 is Vijendra who has stated that Mahipal and appellant/accused Vikram were known to him. On the date of incident near his garden, he along with Satya Pal (P.W.2) saw that some hot talks were going on between Mahipal and appellant/accused Vikram. Then appellant/accused Vikram took out his knife and caused the injury with the said knife in the left abdomen of Mahipal due to which he fell down from the cycle. Mahipal also tried to snatch the said knife from the appellant/accused Vikram due to which he also received injuries in his hand. After causing knife injury, appellant/ accused ran away from there. Then they (he and Satya Pal) took Mahipal at village and there the villagers took him to the hospital, however he stayed in his house. In 9 the hospital of Dr. Pal, S.I. also recorded his statement. S.I. also took in his possession the bloodstained clothes of the injured in his possession and also got his signatures on the Fard, i.e. Ex.Ka-2. The sealed bundle was open in the court in which a bundle Ex.1, bloodstained Kurta Ex.2, trouser Ex.3 and undershirt Ex.4 were exhibited. He also stated that when S.I. had sealed the aforesaid clothes then specimen of seal was prepared on the spot. This witness was also 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. 16. P.W.4 is Om Pal whose statement was recorded in the court on 3.8.1990, has stated that before eight months’, he along with Kalu Ram was sitting in the wood-stock shop of Shamim at P.S. Bhagwanpur. Then S.I., a constable and a S.O. along with the appellant/accused came and before him and the aforesaid police personnel, appellant/accused got recovered a knife from the bushes. The said knife was sealed on the spot and a Fard was also prepared, i.e. Ex.Ka-3. The said knife was marked as Ex.6 and he also signed on the Fard of knife. This witness was also 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 also reliable and believable. 17. P.W.5 is Narendra Kumar who has stated that Mahi Pal (P.W.1) is known to him. On 2.11.1989, Mahi Pal dictated the report at the nursing home of Dr. Rajendra Pal. He also stated that Mahi Pal was in the 10 hospital because the appellant/accused Vikram had caused injury to Mahi Pal with knife. He also proved the report Ex.Ka-1 to be written by him. This witness was cross-examined by the defence counsel but nothing has come out in his statement which may create any doubt in his evidence. The statement of this witness is also reliable and believable. 18. P.W.8 is Constable Balbir Singh who has stated that on 3.11.1989, S.I. B.R. Yadav (P.W.11) had come along with appellant/accused Vikram after arresting him. Then he along with S.O. Diwan Singh, S.I. B.R. Yadav (P.W.11) with appellant/accused Vikram came near the wood-stock shop of Shamim. He also brought Om Pal (P.W.4) and Kalu Ram. After proceeding for a farther, appellant/accused Vikram got recovered a bloodstained knife from the bushes. The said knife was sealed on the spot and a Fard was also prepared, i.e. Ex.Ka-3. 19. P.W.9 is Jagvir who has stated that on the date of incident at about 7:30 P.M., he was sitting at his relatives’ house. Then son of Mahipal namely Dharmendra came and informed that somebody has caused injury to his father by knife and he is lying in the house. When he went there then he saw that blood was oozing out and intestine also came out. When he enquired, then Mahipal told him that appellant/accused Vikram has caused injury to him with knife and Vijendra (P.W.3) and Satya Pal (P.W.2) have saved his life. Then he along with others took the injured Mahipal at Govt. Hospital, Roorkee from where he was referred to Saharanpur. Then they took the injured to Dr. Pratap, Roorkee who also referred him for P.W.6 Dr. Rajendra 11 Pal, where he was admitted. Then the report of this incident was dictated by Mahi Pal to Narendra (P.W.5) and then he along with Bhura, Sultan and one another person took the said report at police station, i.e. Ex.Ka.1. The evidence of this witness is also reliable and believable. 20. P.W.10 is H.M. Sultan Singh who has stated that on 3.11.1989 at 00:30 A.M., Jagvir Singh came with a written report on the basis of which he prepared the Chik FIR, i.e. Ex.Ka-8. He also made necessary entry in the G.D., the carbon copy of G.D. is Ex.Ka-9. He also proved the Report No.25 which he prepared on the dictation of S.O. Diwan Singh, i.e. Ex.Ka-10. 21. P.W.11 is S.I. Babu Ram Yadav who has stated that on 3.11.1989, the case was registered in the police station and the investigation was entrusted to him. During the course of investigation, he inspected the place of occurrence and prepared the site plan, i.e. Ex.Ka-11. On the pointing out of appellant/accused, a knife was also recovered and for that place also, he prepared a site plan, i.e. Ex.Ka-12. He also took the bloodstained clothes of injured Mahipal in his possession from the hospital and also took the register of doctor in his possession and then gave the same in the Supurdgi of the doctor. During the course of investigation, he recorded the statements of witnesses and after completing the investigation, he filed the charge sheet against the appellant/accused, i.e. Ex.Ka.13. 22. Thereafter, the statement of the appellant/ accused Vikram was recorded u/s 313 of Cr.P.C. The oral and documentary evidence was put to him in question form. He has denied the allegations made 12 against him. However, in defence, he did not produce any oral or documentary evidence. 23. Sri M.S. Chauhan, learned amicus curiae for the appellant/accused argued that as per the evidence discussed above, the case against the appellant/accused u/s 307 IPC is not proved beyond reasonable doubt by the prosecution. I do not find any force in the argument raised by learned amicus curiae as P.W.1 Mahi Pal, who is the injured witness of the case, has stated that on 2.11.1989 at about 7:00 P.M., he was going to take BIDI and while returning, appellant/accused Vikram met him. He asked him that why he had employed his (appellant’s) mother. Then he asked the appellant/ accused to enquire this fact from his mother. Then, the appellant/accused started abusing him. Then Satya Pal (P.W.2) and Vijendra (P.W.3) also came on the spot and then appellant/accused, caused injury with a knife in his left abdomen due to which he became unconscious on the spot. Thereafter, he was taken to Govt. Hospital, Roorkee from where he was referred to Saharanpur. Then, he was taken to Dr. Pratap Singh at Roorkee and then he was referred to Dr. Rajendra Pal (P.W.6). Thereafter, his operation was conducted both by Dr. Rajendra Pal and Dr. Pratap. He got the report scribed by Narendra of this incident and the report was sent to the Police Station Bhagwanpur by his sister’s husband Jagvir (P.W.9). He also proved the said report, i.e. Ex.Ka-1. The statement of this witness is reliable, believable, natural and trustworthy and his statement also gets corroboration from the evidence of P.W.2 Satya Pal and P.W.3 Vijendra, who are also the eyewitnesses of the incident. The statement of P.W.1 Mahipal also gets corroboration from the injury reports 13 Ex.Ka-7, Ex.Ka-4 and supplementary report i.e. Ex.Ka-5 as well as from the medical evidence of P.W.7 Dr. Arun Kumar and P.W.6 Dr. Rajendra Pal. P.W.7 Dr. Arun Kumar has stated in his evidence that injury no.1 was caused by sharp edged weapon i.e. by stabbing and this injury may be dangerous to life. Likewise, P.W.6 Dr. Rajendra Pal has also clearly stated in his evidence that injury No.1 was caused by sharp piercing weapon like knife and the nature of the said injury has been opined as dangerous. Besides this, the knife, which was said to have been used in the aforesaid crime, was also got recovered by the appellant/accused from the bushes and P.W.4 Om Pal and P.W.8 Constable Balbir Singh are also the witnesses of recovery of said knife. As such, it is proved that the medical evidence also proves the evidence of P.W.1 Mahi Pal Singh. Thus, as per the evidence discussed above, it is proved that the appellant /accused Vikram has caused injury with knife to the P.W.1 Mahi Pal with such intention and knowledge, and under such circumstances that, if he by that act caused death of Mahipal, he would be guilty of murder. Therefore, the offence punishable u/s 307 IPC is clearly proved against the appellant/accused Vikram beyond reasonable doubt. 24. In view of the aforesaid discussion, I concur with the view taken by the trial court in convicting and sentencing the appellant/accused Vikram u/s 307 IPC for four years’ R.I. 25. For the reasons as recorded above, the appeal is devoid of merits and is hereby dismissed. The judgment and order dated 12/15.4.1991 passed by Sessions Judge, Hardwar in S.T. No.81/1990, State Vs. 14 Vikram, convicting and sentencing the appellant/accused as discussed above, is hereby confirmed. Let the appellant/accused Vikram be taken into custody forthwith in order to serve out the sentence as awarded against him. 26. The sentence served out by the appellant Vikram during the investigation, trial and appeal shall be adjusted after verifying from the records. 27. A copy of this order shall be sent to the trial court concerned forthwith for compliance of order. (Dharam Veer, J.) December 26 , 2008 Rajeev Dang