RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.1695 OF 2001 (OLD NO.2357 OF 1997) Shobha Ram ……… Appellant Versus State of Uttarakhand .……… Respondent Dated: May 10, 2010 Mr. Parikshit Saini, Advocate for the appellant Mr. Amit Bhatt, learned Additional Government Advocate 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 19/20.12.1997 passed by Sessions Judge, Haridwar in Sessions Trial No.278/1994, State Vs. Shobha Ram and others, whereby the learned Sessions Judge convicted the appellant/accused Shobha Ram under Sections 304(2) and 323 of The Indian Penal Code, 1860 (hereinafter to be referred as IPC) and sentenced him to undergo five year’s R.I. u/s 304(2) IPC and further six months R.I. u/s 323 IPC. Both the sentences were directed to run concurrently. However, the co-accused Rajesh and Dinesh were acquitted of the charges levelled against them by the trial court. 2. Heard learned counsel for the parties and perused the entire material on record. 3. In brief, the prosecution case is that on 16.5.1994 complainant Dhani Ram lodged a report in the police station stating therein that Tarachand R/o Village Nagar is real brother-in-law of the complainant. Appellant/accused Shobha Ram and co-accused Rajesh Saini and Dinesh Saini are also residents of Village Nagal (Mehbarkhurb). On 15.5.1994 at about 5 PM appellant/accused and co-accused wanted to do construction by taking over possession in the plot of Tarachand. His nephew (Bhanja) Sonu tried to stop the accused persons but the accused persons had come there with full preparation. Shobha Ram having iron rod in his hand, Rajesh having Tabal in his hand and Dinesh having Balkati in his hand, caused injuries to Mange Ram @ Sonu with intention to kill him. On hearing the cries, as soon as mother of Sonu, namely, Smt. Pushpa reached at the place of occurrence, the accused persons also caused injuries to her with their respective weapons. On receiving the information, when Tarachand came to save his wife and son, then the accused persons also caused injuries to him. The whole incident was seen by Shiv Kumar, Ramesh, Atma Ram, Rajendra and others. On receiving the information, he went to see his sister, brother-in-law and nephew at Roorkee Hospital. His sister and nephew are admitted there and his brother-in-law has been referred to Meerut. With the same averments, the First Information Report was lodged by PW1 Dhani Ram on 16.5.1994 at 12:30 PM at P.S. Bhagwanpur, Haridwar. That FIR is Ext.Ka-1. Chik FIR of the case was prepared by Head Mohirror Sewa Ram, i.e. Ext.Ka- 3 and the case u/s 307 IPC was registered against the appellant/accused and co-accused person. Entries to this effect were made in the G.D., carbon copy of which is Ext.Ka-4. The investigation of this case was entrusted to Sub Inspector Ram Dayal Sagar (PW10). On the same day, injured Tarachand, Smt. Pushpa and Sonu were got medically examined by Dr. M.P. Ahuja (PW9) at 07:30 PM, 7:40 PM and 7:50 PM, respectively. Injury report of Tarachand is Ext.Ka-6, that of Smt. Pushpa is Ext.Ka-7 and that of Sonu is Ext.Ka-8. On 16.5.1994, Tarachand succumbed to his injuries. Then the case was converted into Section 302 of IPC. Entry to this effect were made in the G.D., carbon copy of which Ext.Ka-5. Thereafter inquest report was prepared, i.e. Ext.Ka-9. Along with the inquest report, other papers viz. sketch of dead body Ext.Ka-10, Police Form No.13 Ext.Ka-11, specimen of seal Ext.Ka-12, letter to C.M.O. for conducting post-mortem Ext.Ka-13, were also prepared. On 17.5.1994, post-mortem of the dead body of deceased was conducted by PW4 Dr. P.K. Bhatnagar, who after conducting the post-mortem, prepared the post-mortem report Ext.Ka-2. During the course of investigation, the I.O. inspected the place of occurrence and prepared the site-plan Ext.Ka-14, took into his possession bloodstained earth and plain earth vide Fard Ext.Ka-15, bloodstained clothes of injured Sonu and Smt. Pushpa vide Fards Ext.Ka-16 and Ka- 17, respectively. The I.O. also recovered iron rod, one balkati and a stick of Eucalyptus, and after taking the same into his possession, prepared the Fard Ext.Ka-18 and also prepared the site-plan of the place of recovery of aforesaid articles, i.e. Ext.Ka-19. During the course of investigation, the I.O. also recorded the statement of the witnesses and after completing the investigation, filed the charge sheet against the appellant/accused and co-accused (acquitted by the trial court), which is Ext.Ka-20. Recovered articles were sent to Scientific Laboratory, Agra for chemical examination, report of which is received, i.e. Ext.Ka-21. 4. After receiving the charge sheet, learned Addl. Chief Judicial Magistrate, Roorkee, committed the case to the court of Sessions on 26.8.1994 after giving necessary copies to the appellant/accused and co-accused (acquitted by the trial court) as required u/s 207 Cr.P.C. 5. On 26.9.1997, learned Sessions Judge, Haridwar framed the charge of offence punishable under Sections 307/34 and 302/34 of IPC against the appellant/accused and co-accused. The charge was read over and explained to the appellant/accused and the co-accused, who pleaded not guilty and claimed to be tried. 6. In order to prove its case, the prosecution has examined P.W.1 Dhani Ram, complainant of the case, P.W.2 Sonu, injured eyewitness, P.W.3 Atma Ram, eyewitness, P.W.4 Dr. P.K. Bhatnagar, who conducted the post-mortem of the deceased, P.W.5 Sukhbir Singh, who has taken the dead body for post- mortem, P.W.6 Om Pal, witness of recovery, P.W.7 Shiv Kumar, eyewitness, P.W.8 H.C. Seva Ram, who prepared the chik FIR and made entries in the G.D., P.W.9 Dr. M.P. Ahuja, who medically examined the injured persons and P.W.10 Ram Dayal Sagar, Investigating Officer of the case. 7. Thereafter the statements of the appellant/accused and the co-accused were recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to each of them in question form, who have denied the allegations made against them. In defence, they have filed certain documents. 8. After appreciating the entire evidence on record and hearing learned counsel for the parties, learned Sessions Judge, Haridwar vide his judgment and order dated 19/20.12.1997 convicted and sentenced the appellant/accused as mentioned above. Against the said judgment and order dated 19/20.12.1997, the appellant/accused has preferred this appeal. 9. Before further discussion, it is pertinent to mention here the injury report (Ex.Ka-6) of injured Tarachand who was examined on 15.5.1994 at 7:30 PM by Dr. M.P. Ahuja (PW9), which reads as under: - i) Lacerated wound V shaped, one arm measuring 5 cm x 1.5 cm x bone deep and other arm 6 cm x 1.5 cm x bone deep on right side head. 9 cm above the right ear, surrounded by traumatic swelling 8 cm x 6 cm. Injury kept under observation, advised X-ray skull AP and lat. View. ii) Lacerated wound 5.0 cm x 1.5 cm x bone deep on the left side head 8.0 cm above and below the left ear, kept under observation, advised X-ray skull AP and lateral view. iii) Lacerated wound 3.5 cm x 1.0 cm x bone deep on left side head 4 cm in front of injury no.2. Injury kept under observation, advised X-ray skull and AP and lateral view. iv) Lacerated wound 1.5 cm x 0.5 cm x bone deep with deformity on the middle of right leg, kept under observation, advised X-ray, right left AP and lat. view. v) Lacerated wound 1.5 cm x 0.5 cm x bone deep with deformity 5.0 cm below the injury no.4, kept under observation. vi) Lacerated wound 5.0 cm x 1.0 cm x bone deep on the front and middle of left leg. vii) Lacerated wound 3.0 cm x 1.0 cm x bone deep on the front and upper part of left leg. viii) Traumatic swelling 8 cm x 5 cm on the left elbow, kept under observation, advised x- ray. General condition of the patient is low. Injury no.1 to 5 kept under observation and no.6 and 7 simple. All injuries caused by some blunt object. Duration fresh. Patient admitted. Injury no.8 also kept under observation. 10. Smt. Pushpa was also medically examined by the same Medical Officer on 15.5.1994 at 07:40 PM. Injury report of Smt. Pushpa is Ext.Ka-7, which reads as under:- i) Lacerated wound 6.0 cm x 1.5 cm x bone deep on the right side head 5.0 cm above the right eyebrow, kept under observation, advised X-ray skull AP and lateral view. ii) Lacerated wound 1.0 cm x 0.5 cm x scalp deep close to injury no.1. iii) Incised wound 8.0 cm x 1.0 cm x bone deep on the center of head, 8 cm above the root of nose, kept under observation, advised x-ray skull AP and lateral view. iv) Contusion 4.0 cm x 2.0 cm on the right cheek. v) Multiple contusions on the lower back extending from right side to left side measuring 20.0 cm x 14 cm kept under observation advised x-ray chest as patient is complaining difficulty in respiration. vi) Lacerated wound 1 cm x 0.25 cm x muscle deep on the dorsum of right middle finger. vii) Traumatic swelling 7 cm x 5 cm on the dorsum of right hand kept under observation advised x- ray right hand AP and lateral view. viii) Lacerated wound 1 cm x 0.5 cm x bone deep on the right forearm lower outer object, kept under observation, advised x-ray right forearm AP and lateral view. Injury no.1, 3, 5, 7 and 8 kept under observation, rest are simple. Injury no.3 caused by some sharp edged object. Rest all are caused by some blunt object. Duration fresh, patient admitted. 11. Injured Sonu was also medically examined by the same Medical Officer on 15.5.1994 at 07:50 PM. Injury report of Sonu is Ext.Ka-8, which reads as under:- i) Lacerated wound 6.0 cm x 1.3 cm x bone deep on the left side head 9 cm above the left ear, kept under observation, advised x-ray skull AP and lateral view. ii) Traumatic swelling 3 cm x 2 cm on the right side head, 4 cm above the right ear. iii) Traumatic swelling 5.0 cm x 3 cm on right side head 4 cm behind the right ear. iv) Contusion with swelling 10 cm x 9 cm on the left cheek and mandible, kept under observation, advised x-ray left side mandible and face. v) Traumatic swelling 8 cm x 5 cm around right shoulder kept under observation advised x-ray right shoulder AP and lateral. vi) Traumatic swelling 5 cm x 4 cm on the back of left elbow kept under observation advised x-ray left elbow joint AP and lateral view. vii) Abraded contusion 7 cm x 5 cm on the top of left shoulder, kept under observation, advised x-ray left shoulder. Injury no.1, 4, 5, 6 and 7 kept under observation, rest are simple. All injuries are caused by some blunt object. Duration fresh. 12. On 16.5.1994, Tarachand succumbed to his injuries. Thereafter, post-mortem of the dead body of deceased Tarachand was conducted by PW4 Dr. P.K. Bhatnagar on 17.5.1994 at 11AM, who found the following ante-mortem injuries on the person of deceased Tarachand:- (i) Stitched wound 5 cm x 6 stitches right side head 8 cm above right ear. (ii) Stitched wound 5 cm x 5 stitches right side head adjoining injury no.1. (iii) Stitched wound 5 cm x 5 stitches 8 cm above left ear. (iv) L.W. 1.5 cm x 1 cm bone deep front of right leg with fracture both bones 14 cm below knee. (v) L.W. 1.5 cm x 1 cm bone deep medial side right leg 9 cm below injury no.4 and fracture both bones. (vi) Stitched wound 2.5 cm x 3 stitches front of left leg 8 cm below left knee. (vii) Stitched wound 4 cm x 3 stitches 9 cm below injury no.6 front of left leg. (viii) Abrasion 2 x 1 cm, 2 cm below injury no.7. (ix) Contusion 8 cm x 2 cm right side back. (x) Abrasion 3 x 1 cm back of left elbow. Cause of Death:- Shock and hemorrhage due to ante-mortem injuries. 13. To prove the above-noted injury, the prosecution has examined P.W.9 Dr. M.P. Ahuja, who has stated that on 15.5.1994, he was posted at Roorkee Hospital. On that day, he medically examined the injured Tarachand at 07:30 PM and found the above-noted injuries on his body. He stated that the injuries of Tarachand were fresh and were possible to come by some blunt object like iron rod or stick of Eucalyptus. He further stated that on the same day at 07:40 PM he medically examined injured Smt. Pushpa. Her Injury no.3 were possible to come by sharp edged weapon like Tabal or Balkati and rest were possible to come by blunt object like iron rod or stick of Eucalyptus. On the same day at 7:50 PM, he medically examined the injured Sonu. All the injuries found on the person of injured Sonu were possible to come by some blunt object like iron rod or stick of Eucalyptus. He further stated that all the injuries of injured persons could be caused on 15.5.1994 at 5 PM. He has proved the reports Ext.Ka-6, Ka-7 and Ka-8. 14. P.W.4 Dr. P.K. Bhatnagar stated that on 17.5.1994 he was posted as Medical Officer at Haridwar Hospital. On that day, he conducted the post-mortem of the dead body of deceased Tarachand and found above-noted ante-mortem injuries. He opined that the deceased had died half or one day before and cause of death were ante-mortem injuries. He also opined that the lacerated wounds found on the person of deceased were possible to come by iron rod or stick of eucalyptus. He further stated that the post- mortem report was prepared by him, which is Ext.Ka- 2. 15. In order to prove its case further, the prosecution has examined P.W.1 Dhani Ram, who has reiterated the version of FIR lodged by him in the Police Station. He has proved the report Ext.Ka-1. 16. P.W.2 Sonu is the injured eyewitness of the case. He stated that the said incident had taken place on 15.5.1994 at 5 PM. He saw from his house that appellant/accused Shobha Ram and co-accused Rajesh and Dinesh were digging on his plot and were making path in order to go to their field. He went there and raised his objection on which the appellant/accused hurled abuses to him. Appellant/accused Shobha Ram was armed with iron rod, Rajesh was armed with Tabal and Dinesh was armed with Balkati. Co-accused Dinesh tried to assault him with Balkati but it fallen down from his hand. Then he carried Eucalyptus danda in his hand. Thereafter all the accused persons caused injuries to him by their respective weapons. On his alarm, his mother Smt. Pushpa Devi reached at the spot. The accused persons also caused injuries to her. Thereafter his father came who was also beaten by the accused persons. Blood oozed out from their injuries, which fallen on the spot. Then Shiv Kumar, Atma Ram, Ramesh, Rajendra and others arrived at the spot, who witnessed the said incident. All the injured persons were taken to Roorkee Hospital by the aforesaid persons where their medical examination was conducted. Next day in the morning, his father was sent to Meerut Hospital, who died on the same day. At 9-10 AM, his maternal uncle Dhani Ram came, to whom he and his mother narrated the entire incident. This witness was cross-examined at length by the defence counsel but nothing has come out from his evidence, which may create any doubt in his evidence. The evidence of this witness is reliable, believable and inspires confidence. 17. P.W.3 Atma Ram is the eyewitness of the case. He has corroborated the statement of P.W.2 Sonu. However, presence of this witness was found doubtful by the trial court. 18. P.W.5 Constable Sukhbir Singh stated that on 16.5.1994 he was posted on the aforesaid post. On that day, he had brought the sealed dead body of the deceased at Haridwar for post-mortem. Another Constable Sukhbir Singh was also with him. He further stated that till the time the dead body was in his possession no body tampered with it. 19. P.W.6 Om Pal stated that on 22.5.1994 in the daytime the I.O. alongwith one constable and appellant/accused Shobha Ram came. The I.O. asked him to come with him. One iron rod, a tabal (balkati) and one eucalyptus danda was recovered by the I.O. on the pointing out of appellant/accused. The I.O. sealed the aforesaid articles and prepared the Fard, the same was also signed by him. 20. P.W.7 Shiv Kumar is the eyewitness of the case. He has corroborated the statement of P.W.1 Dhani Ram and P.W.2 Sonu. 21. P.W.8 Sewa Ram stated that on 16.5.1994 he was posted as Head Mohirror at Police Station Bhagwanpur. On that day at 12:30 PM Dhani Ram lodged the report Ext.Ka-1 in the police station, on the basis of which he prepared the Chik FIR Ext.Ka-3 of the case and also made entries in the G.D., carbon copy of which is Ext.Ka-4. On the same day, on the order of Circle Officer, Roorkee, the case was amended into Section 302 IPC. Entry to this effect were also made by him in the G.D., carbon copy of which is Ext.Ka-5. 22. P.W.10 Ram Dayal Sagar stated that in May/June 1994 he was posted as Second Officer at P.S. Bhagwanpur. The investigation of this was entrusted to him. During the course of investigation, he received the information that injured Tarachand has died and the case has been amended into Section 302 IPC. Thereafter, he prepared the inquest report Ext.Ka- 9, sketch of dead body Ext.Ka-10, Challan Lash Ext.Ka-11, specimen of seal Ext.Ka-12 and letter to C.M.O. for conducting the post-mortem of deceased Ext.Ka-13. He also prepared the site-plan of the place of occurrence, i.e. Ext.Ka-14. He also took into possession bloodstained and plain earth from the place of occurrence vide Fard Ext.Ka-15; bloodstained clothes of injured Sonu and Smt. Puspa vide Fards Ext.Ka-16 and Ka-17, respectively; recovered iron rod, balkati and eucalyptus stick on the pointing out of appellant/accused from his house and after the same into possession prepared Fard Ext.Ka-18 and prepared site-plan Ext.Ka-19 of the place of recovery. During the course of investigation, he also recorded the statement of witnesses and after completing the investigation, filed the charge sheet against the accused persons, i.e. Ext.ka-20. 23. Sri Parikshit Saini, learned counsel for the appellant/accused argued that the prosecution has not proved the case against the appellant/accused beyond reasonable doubt under Sections 304(2) and 323 IPC. I do find any substance in this argument for the reason that P.W.2 Sonu, who is the injured eyewitness of the case, in his deposition, has stated that the said incident had taken place on 15.5.1994 at 5 PM. He saw from his house that appellant/accused Shobha Ram and co-accused Rajesh and Dinesh were digging on his plot and were making path in order to go to their field. He went there and raised his objection on which the appellant/accused hurled abuses to him. Appellant/accused Shobha Ram was armed with iron rod, Rajesh was armed with Tabal and Dinesh was armed with Balkati. Co-accused Dinesh tried to assault him with Balkati but it fallen down from his hand. Then he carried Eucalyptus danda in his hand. Thereafter all the accused persons caused injuries to him by their respective weapons. On his alarm, his mother Smt. Pushpa Devi reached at the spot. The accused persons also caused injuries to her. Thereafter his father came who was also beaten by the accused persons. Blood oozed out from their injuries, which fallen on the spot. Then Shiv Kumar, Atma Ram, Ramesh, Rajendra and others arrived at the spot, who witnessed the said incident. All the injured persons were taken to Roorkee Hospital by the aforesaid persons where their medical examination was conducted. Next day in the morning, his father was sent to Meerut Hospital, who died on the same day. At 9-10 AM, his maternal uncle Dhani Ram came, to whom he and his mother narrated the entire incident. The evidence of this witness is reliable, believable and natural and inspires implicit confidence and the same also gets full corroboration from the oral evidence of P.W.1 Dhani Ram and P.W.7 Shiv Kumar, who too have fully supported the prosecution case in their examination. Apart from above, the statement of Sonu also gets corroboration from the medical evidence. Injured Tarachand was medically examined by P.W.9 Dr. M.P. Ahuja on 15.5.1994 at 7:30 PM. The medical officer stated that the general condition of injured was very low. He opined that all the injuries found on the body of Tarachand were fresh and could be caused by some blunt object like iron rod or eucalyptus stick. Looking to the serious condition of Tarachand, he was referred to Meerut, where he succumbed to his injuries. Thereafter, the post-mortem on the dead body of Tarachand was conducted by P.W.4 Dr. P.K. Bhatnagar on 17.5.1994 at 11 AM., who has opined that the cause of death was hemorrhage and shock due to ante-mortem injuries. Similarly, injured Smt. Pushpa Devi was also medically been examined by P.W.9 Dr. M.P. Ahuja on the same day i.e. on 15.5.1994 at 7:40 PM and the medical officer about her injuries also stated that injuries no.3 could be caused by some sharp edged weapon like Tabal or balkati and rest injuries could be caused by some blunt object like iron rod or eucalyptus stick. Likewise, injured Sonu was also medically been examined on the same day at 07:50 PM by the same medical officer who opined that all his injuries could be caused by some blunt object like iron rod or stick of Eucalyptus. Therefore, it is proved that medical evidence also fully corroborates the version of the eyewitnesses as well as the entire prosecution case. Thus, from the evidence discussed above, the prosecution has fully proved its case against the appellant/accused Shobha Ram beyond reasonable doubt under the aforesaid Sections and the trial court is correct and justified in convicting and sentencing the appellant/accused as discussed above. I also concur with the view taken by the trial court in convicting and sentencing the appellant/accused as discussed above. 24. For the foregoing reasons, the appeal is devoid of any merits and is accordingly dismissed. The judgment and order dated 19/20.12.1997 passed by Sessions Judge, Haridwar in Sessions Trial No.278/1994, State Vs. Shobha Ram and others, in convicting and sentencing the appellant/accused needs no interference by this court and is hereby made affirmed. The appellant is on bail. His bail is cancelled. Let him be taken into custody forthwith in order to serve out the sentence. However, it is made clear that the period of sentence already served out by him during investigation, trial or during the pendency of this appeal shall be adjusted after verifying from the records. 25. Let a copy of this order be sent to the trial court concerned for compliance of the order forthwith. (Dharam Veer, J.) May 10, 2010 Rajni