RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.1223 OF 2001 (Old No.1564/1990) 1. Harjender Singh alias Gullu S/o Narayan Singh 2. Narayan Singh S/o Hukum Singh Both R/o Village Bundu Khera, P.S. Rudrapur, District Nainital ……… Appellants (In Jail) Versus State of Uttarakhand ……… Respondent Dated: August 21, 2008 Sri J.S. Virk, learned counsel for the appellants Sri M.A. Khan, learned brief holder for the State HON. DHARAM VEER, J. This criminal appeal, preferred under section 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 10.08.1990 passed by IIIrd Additional Sessions Judge, Nainital in Sessions Trial No.236/1988, State Vs. Harjinder Singh @ Gullu & another, whereby the learned IIIrd Addl. Sessions Judge has convicted the appellants/accused- Harjinder Singh and Narayan Singh u/s 304 (Part II) of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) r/w Section 34 of IPC and sentenced each of them to five years’ rigorous imprisonment. 2. I have heard Sri J.S. Virk, learned counsel for the appellants and Sri M.A. Khan, learned brief holder 2 for the State and perused the entire material available on record. 3. In brief, the prosecution case is that on 20.1.1988 at about 2:30 P:M, when the complainant Joginder Singh was doing weeding work in his field, at that time, his grandfather Sant Diwan Singh was also going in the field. It was further averted that Deep Chand has provided the way from his field to go on foot to the complainant’s grandfather. On the said way, appellants/ accused Harjinder Singh and Narain Singh were trying to amalgamate the said way into their own field. When the complainant’s grandfather asked them not to do like so, then the appellant/accused Harjinder Singh @ Gullu caused injuries to complainant’s grandfather on his stomach with a spade twice or thrice. When the complainant’s grandfather raised an alarm, then the complainant Joginder Singh along with Jagir Singh (P.W.3) and Joga Singh (P.W.2) reached there in order to save complainant’s grandfather. Meanwhile, appellant/ accused Narain Singh also caused injury in the stomach of complainant’s grandfather with the handle of spade. Thereafter, both the appellants/accused ran away from there. After receiving the injuries, complainant’s grandfather died on the spot. It was further averted that the complainant and his associates chased the appellants/accused for a long but they could not succeed to catch the appellants/accused. After leaving the dead body of his grandfather at the spot, the complainant Joginder Singh came at P.S. Rudrapur and lodged the report, i.e. Ex.Ka-1. On this basis of this FIR, a Chik FIR was prepared by Head Constable Om 3 Pal Singh on 20.1.1988 at 3:45 P.M., that Chik FIR is Ex.Ka-4. The entry of the case was also made in the G.D., the carbon copy of G.D. is Ex.Ka-10. The investigation of this case was entrusted to S.I. R.S. Verma. The inquest report of the dead body of Sant Diwan Singh was prepared by the I.O. on the same day i.e. on 20.01.1988, the inquest report is Ex.Ka-2. Along with the inquest report, the I.O. also prepared Police Form No.33 i.e. Ex.Ka-5, letter sent to In-charge Medical Officer, Haldwani for conducting the post- mortem on the dead body of Sant Diwan Singh, i.e. Ex.Ka-6, specimen of seal i.e. Ex.Ka-7, sketch of dead body, i.e. Ex.Ka-8 and Police Form No.13, i.e. Ex.Ka-9. Thereafter, the dead body of Sant Diwan Singh was sent for conducting the post-mortem and post-mortem on the dead body of Sant Diwan Singh was conducted by Dr. S.C.S. Koranga (P.W.4) on 21.1.1988 at 1:30 P.M., the post-mortem report is Ex.Ka-3. During the course of investigation, the I.O. inspected the place of occurrence and prepared the site plan, i.e. Ex.Ka-11. The I.O. also sent the Viscera in the Forensic Laboratory for chemical examination, the report of Asstt. Director, Chemical Laboratory, Agra (U.P.) is Ex.Ka-12. The genuineness of the documents viz. Chik FIR, carbon copy of G.D., Police Form No.33, letter sent by I.O. to M.O. In-charge, Haldwani, Nainital, specimen of seal, sketch of dead body, Police Form No.13, site plan and charge sheet was admitted by the defence counsel. During the course of investigation, the I.O. recorded the statements of the witnesses and after completing the investigation, he submitted the charge 4 sheet against the appellants/accused u/s 304 IPC, i.e. Ex.Ka-13. 4. After receiving the charge sheet, the Chief Judicial Magistrate, Nainital has committed the case to the court of Sessions on 25.08.1988 after giving necessary copies to the accused as provided under Section 207 Cr.P.C. 5. Learned Sessions Judge, Nainital has framed the charge against the appellants/accused Harjendra Singh & Narain Singh on 26.09.1988 u/s 304 IPC r/w Section 34 I.P.C. The charge was read over and explained to appellants/accused, who pleaded not guilty and claimed to be tried. 6. To prove its case, the prosecution has examined P.W.1 Jogendra Singh, complainant of the case, P.W.2 Joga Singh, eyewitness, P.W.3 Jagir Singh, also an eyewitness, P.W.4 Dr. S.C.S. Koranga, who has conducted the autopsy of dead body and P.W.5 Constable Pooran Singh, who has filed his affidavit and took the dead body for conducting the post-mortem. 7. After that the statements of the accused/ appellants was recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to them in question form, who denied the allegations made against him and stated that they have been falsely implicated due to enmity. However, in defence, they have not produced any oral or documentary evidence. 8. After hearing learned counsel for the parties and appreciating the entire material available on 5 record, the learned IIIrd Additional Sessions Judge vide his judgment and order dated 10.08.1990 convicted and sentenced the appellants/accused u/s 304 (Part II) IPC r/w Section 34 IPC and sentenced each of them to five years rigorous imprisonment. Feeling aggrieved by the aforesaid judgment and order, the accused/appellants have preferred the present appeal. 9. Before further discussion, it is pertinent to mention the description made in the post-mortem report (Ex.Ka-3) prepared by Dr. S.C.S. Koranga (P.W.4) in respect of Sant Diwan Singh, the post- mortem of whose dead body was conducted on 21.1.1988 at 1:30 P.M., which is as follows: - “In the external examination, no External Injury was seen. 10. P.W.4 Dr. S.C.S. Koranga, who was examined by the prosecution to prove the post-mortem report, has stated that on 21.1.1988, he was posted at Civil Hospital, Haldwani. On that day, dead body of Sant Diwan Singh was brought to him at about 1:30 P.M. in a sealed condition. The deceased was about 80 years old. On the external examination, he found no sign of any injury. On the internal examination also, he did not find any injury or anything abnormal. In his opinion, deceased had died about one day before conducting of post-mortem. Due to unknown reason of death, Viscera was preserved. He prepared the post- mortem report at the time of conducting the post- 6 mortem, i.e. Ex.Ka-3. He sent the following items through a Constable who had brought the dead body: - 1. Sample of Preservative 2. Piece of Stomach & its contents, intestine 3. Piece of liver, spleen and kidney. A sealed bundle of clothes of deceased was also sent by him in the police station through a Constable in which following clothes were sealed: - “An underwear, a Jacket, a bracelet and a turban”. 11. Thereafter, the Asstt. Director, Chemical Laboratory, Agra, U.P. submitted its report (Ex.Ka-12), which is as follows: - “The thorough examination of Viscera of the dead person Sant Dewan Singh was done by chemical laboratory and the following serious injuries were found in his Viscera-which became the cause of his death. Description of the injuries 1. Serious injury in small intestine 2. Burst of large Intestine 3. Hemorrhage in Urinary Bladder” Remark According to the Examination of Viscera, the serious injuries became the cause of the death. 12. To further prove its case, the prosecution has examined P.W.1 Jogendra Singh, who has stated that 7 appellants/accused Harjinder Singh @ Gullu and Narain Singh were known to him before the incident. On the date of incident, the time was about 2:30 P.M. when he was weeding wheat in his field. Deep Chand Pahari has provided the way to him and his grandfather to go their field through his (Deep Chand’s) field. Deceased Diwan Singh was his grandfather. On that day, his grandfather was coming from Bindukhera to his house through the way in between the fields. At that time, both these appellants were amalgamating the said way into their own field. When his grandfather stopped them to do so, then appellant/accused Harjinder Singh @ Billu caused injuries with a spade in the stomach of his grandfather twice or thrice. On the alarm raised by his grandfather, he along with Jagira Singh and Joga Singh ran towards the place of occurrence in order to save his grandfather. At the same time, appellant/accused Narayan Singh also caused injuries with the handle of spade in the stomach of his grandfather. Thereafter both of them ran away from there and his grandfather fell on the spot and succumbed to his injuries. On the place of occurrence, he dictated the FIR to Gurmit Singh and whatever he dictated, Gurmeet Singh had written and thereafter he signed over it, that report is Ex.Ka-1. After leaving the dead body of his grandfather on the spot, he came to P.S. Rudrapur for lodging the FIR (Ex.Ka-1). This witness was cross-examined at length by the defence counsel but nothing has come out in his evidence which may create any doubt in his evidence. The evidence of this witness is reliable and believable. 8 13. P.W.2 is Joga Singh who has stated that on the date of incident at about 2:30 P.M., he was sitting in his house. On hearing the noise of his grandfather, he ran towards the place of occurrence. There both the appellants/accused were present and both of them were having spades in their hands. Both the appellants/ accused were known to him before the incident. Firstly, appellant/accused Harjinder Singh caused injuries in the stomach of his grandfather with a spade twice or thrice. Thereafter, another appellant/accused Narayan Singh caused injury with the handle of spade in the stomach of his grandfather. Due to receiving of injuries, his grandfather fell on the spot and succumbed to his injuries. This witness was also cross-examined at length by the defence counsel but nothing has come out in his evidence which may create any doubt in his evidence. The evidence of this witness is also reliable and believable. 14. P.W.3 is Jagir Singh who has stated that on the date of incident at about 2:30 P.M. he was coming at his house from Village Chhatarpur. The appellants/accused were amalgamating the field-ridge into their field. Diwan Singh stopped the appellants/accused to do so. On this, appellant/ accused Harjinder Singh caused injuries with a spade in the stomach of Diwan Singh twice or thrice. On the alarm raised by Diwan Singh, he reached on the spot. Appellant/accused Narain Singh also caused injury with the handle of spade in the stomach of Diwan Singh. Due to this, Diwan Singh succumbed to his injuries. He was also appointed Panch by the S.I. for preparing the inquest on the dead body. The S.I. after 9 completing the necessary formalities, prepared the inquest report, i.e. Ex.Ka-2. This witness was also cross-examined at length by the defence counsel but nothing has come out in his evidence which may create any doubt in his evidence. The evidence of this witness is also reliable and believable. 15. P.W.5 is Constable Pooran Singh, who has filed his affidavit. He has stated in the affidavit that in the month of January, 1988, he was posted as Constable along with Constable Ashok Kumar at P.S. Rudrapur. On 20.1.1988, the I.O. had given the dead body of Sant Diwan Singh to him along with Constable Ashok Kumar for conducting the post-mortem along with necessary papers. On 21.1.1988, the dead body was produced at post-mortem house and necessary papers were also given by him to the doctor. Till when the dead body was remained in their possession, that was remained in sealed condition. After the post- mortem, the doctor gave them the clothes of deceased in sealed condition, which they have deposited in the Maalkhana of police station and seal thereof also remain intact. 16. After that the statements of the accused/ appellants was recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to them in question form, who denied the allegations made against them and stated that they have been falsely implicated due to enmity. However, in defence, they have not produced any oral or documentary evidence. 17. Sri J.S. Virk, learned counsel for the appellants/accused argued that as per the evidence 10 discussed above, the prosecution has not proved its case beyond reasonable doubt against the appellants/accused. The argument advanced by learned counsel for the appellants has got no force. As per the evidence discussed above, P.W.1 Jogendra Singh, who is the complainant and eyewitness of the incident, has clearly stated in his evidence that appellants/accused Harjinder Singh @ Gullu and Narain Singh were known to him before the incident. On the date of incident, the time was about 2:30 P.M. when he was weeding wheat in his field. Deep Chand Pahari has provided the way to him and his grandfather to go their field through his (Deep Chand’s) field. Deceased Diwan Singh was his grandfather. On that day, his grandfather was coming from Bindukhera to his house through the way in between the fields. At that time, both these appellants were amalgamating the said way into their own field. When his grandfather stopped them to do so, then appellant/accused Harjinder Singh @ Billu caused injuries with a spade in the stomach of his grandfather twice or thrice. On the alarm raised by his grandfather, he along with (P.W.3) Jagira Singh and (P.W.2) Joga Singh reached there in order to save Diwan Singh. At the same time, appellant/accused Narayan Singh also caused injuries with the handle of spade in the stomach of his grandfather. Thereafter both of them ran away from there and his grandfather fell on the spot and succumbed to his injuries. On the place of occurrence, he dictated the FIR to Gurmit Singh and whatever he dictated, Gurmeet Singh had written and thereafter he signed over it, i.e. Ex.Ka-1. After leaving the dead body on the spot, he came to P.S. Rudrapur for lodging the 11 FIR (Ex.Ka-1). The evidence of this witness is reliable, believable and natural. The evidence of P.W.1 Jogendra Singh is also in corroboration with the evidence of P.W.2 Joga Singh and P.W.3 Jagir Singh, who are also the eyewitnesses of the incident as well as from the report submitted by Assistant Director, Chemical Laboratory, Agra (UP), i.e. Ex.Ka-12, who has opined that according to Examination of Viscera, the serious injuries became the cause of the death. In view of the aforesaid discussion, it is proved that on 20.1.1988 at about 2:30 P.M. appellant/accused Harjinder Singh had caused injuries with a spade and appellant/accused Narayan Singh has caused injury with the handle of spade in the stomach of Sant Diwan Singh and due to these injuries, Sant Diwan Singh succumbed to his injuries. As such, the case u/s 304 (Part II) IPC r/w Section 34 IPC is fully made out against the appellants/ accused beyond reasonable doubt. 18. Learned counsel for the appellants/accused further argued that in the post-mortem report, no external injury was seen and cause of death also could not be ascertained as the Viscera was preserved. Hence, he submitted that the medical evidence does not corroborate the oral evidence. I do not find any substance in this argument advanced by counsel for the appellants. According to the report submitted by Asstt. Director, Chemical Laboratory, Agra (UP) i.e. Ex.Ka-12, it is proved that serious injury in small intestine, burst of large intestine and Hemorrhage in Urinary Bladder in respect of Viscera of deceased Sant Dewan Singh was found. It was further opined by the Chemical Examiner that according to the examination of Viscera, the 12 serious injuries became the cause of the death. In this way, it is ample clear that the medical evidence fully corroborates the oral evidence. 19. Thus, as per the evidence discussed above, the prosecution has been fully successful in proving its case against both the appellants/accused Harjinder Singh and Narain Singh u/s 304 (Part II) IPC r/w Section 34 IPC. There is no ground to interfere with the judgment and order passed by the trial court and I also concur with the view taken by the trial court in convicting and sentencing the appellants/accused as discussed above. 20. For the reasons recorded above, the appeal preferred by the appellants is devoid of merits and is accordingly dismissed. The judgment and order dated 10.08.1990 passed by IIIrd Addl. Sessions Judge, Nainital is hereby affirmed. The appellants are on bail. Their bail is cancelled. Let them be taken into custody forthwith in order to serve out the sentence. 21. A copy of this order shall be sent to the trial court concerned forthwith for compliance of the order. (Dharam Veer, J.) August 21, 2008 Rajeev Dang