RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.1181 OF 2001 (OLD NO.1278 of 1997) Sanjay Tiwari S/o Sri Nand Ram Tiwari R/o M.E.S. Colony, P.S. Clement Town, District Dehradun State of Uttarakhand Versus ……… Appellant .……… Respondent Dated: June 14, 2010 Mr. Lokendra Dobhal, learned counsel for the appellant Mr. Prabhakar Joshi, 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 21.7.1997 passed by Additional Sessions Judge (E.C. Act), Dehradun in S.T. No.59 of 1994, State Vs. Sanjay Tiwari, whereby the learned Addl. Sessions Judge (E.C. Act) convicted the appellant/accused under Section 307 of The Indian Penal Code, 1860 (hereinafter to be referred as the IPC) and sentenced him to undergo rigorous imprisonment for a period of six years. 2. Heard learned counsel for the parties and perused the entire material on record. 3. In brief, the prosecution case is that Harka Bahadur (PW1) lodged a Report at Police Station Clement Town, Dehradun on 7.2.1994 with the averments that on some matter, quarrel had taken place between his son Bhagatman Gurung and Ajay Tiwari in the school. At about 7:30 PM, his son Bhagatman Gurung and Vikram Singh had gone to buy certain articles at Nai Basti Market. There brother of Ajay Tiwari, namely, Sanjay Tiwari (the appellant herein) met them and called both of them and asked why he has beaten his brother today and also told that he will not leave him alive. Thereafter, with intention to kill, the appellant/accused inflicted injuries to his son Bhagatman Gurung and Vikram Singh Thapa by knife. On the alarm, Anup Singh Negi, D.S. Bhandari and some other people of the locality arrived at the spot, who saved his son and Vikram Singh Thapa from the clutches of the appellant/accused. Thereafter the appellant/accused ran away from the place of occurrence. It is also stated that his son and Vikram Thapa have received number of injuries caused by knife. With the same averments, the FIR was lodged by Harka Bahadur at P.S. Clementown, Dehradun on the same day at 8:30 PM. That F.I.R. is Ext.Ka-1. On the basis of the FIR, Chik FIR of the case was prepared by Head Mohirror Rajendra Prasad, i.e. Ext.Ka-6. Necessary entries were also made in the G.D., carbon copy of which is Ext.Ka-7. The investigation of the case was entrusted to Sub Inspector M.P. Ashok (PW7). Injured Bhagatman Gurung and Vikram Singh were medically examined by Dr. S.K. Nautiyal (PW5) on the same day i.e. 7.2.1994 at 9:25 PM and 9:11 PM, respectively. Injury report of Bhagatman Gurung is Ext.Ka-2 and that of Vikram Singh is Ext.Ka-3. Both the injured also remained admit in the hospital. Their bed head tickets are Ext.Ka-5 and Ka-4, respectively. During the course of investigation, the I.O. inspected the place of occurrence and prepared the site-plan, i.e. Ext.Ka-8. The I.O. also took the bloodstained clothes of injured Bhagatman Gurung and Vikram Singh into his possession vide Fards Ext.Ka-9 and Ka-10, respectively. During the course of investigation, the I.O. also recorded the statements of the witnesses and on completion of investigation, he filed the charge sheet against the appellant/accused, i.e. Ext.Ka-12. 4. After receiving the charge sheet, learned Additional Chief Judicial Magistrate IInd, Dehradun committed the case to the court of Sessions on 30.5.1994, after giving necessary copies to the appellant/accused as prescribed u/s 207 Cr.P.C. 5. It seems from record that the case to then transferred to Additional Sessions Judge for hearing and disposal according to law. 6. On 21.4.1995, learned Addl. Sessions Judge, Dehradun framed the charge of offence punishable u/s 307 of IPC against the appellant/accused. The charge was read over and explained to the appellant/accused to which he pleaded not guilty and claimed to be tried. 7. In order to prove its case, the prosecution has examined PW1 Harka Bahadur, complainant of the case, PW2 Bhagatman Gurung, injured witness, PW3 Anup Singh Negi, PW4 Vikram Thapa, injured witness, PW5 Dr. S.K. Nautiyal, Emergency Medical Officer, who medically examined the injured Bhagatman Gurung and Vikram Singh and prepared the injury reports Ext.Ka-2 and Ka-3, PW6 Kishan Lal, who has proved the bed head tickets Ext.Ka-9 and Ka-10 and PW7 Sub Inspector M.P. Ashok, Investigating Officer of the case. 8. Thereafter the statements of the appellant/accused were recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to him in question form, who has denied the allegations made against him. However, he has not filed any oral or documentary evidence in defence. 9. After appreciating the entire evidence on record and hearing learned counsel for the parties, learned Addl. Sessions Judge (E.C. Act), Dehradun vide his judgment and order dated 21.7.1997 convicted and sentenced the appellant/accused as mentioned above. Against the said judgment and order dated 21.7.1997, the appellant/accused has preferred the present appeal. 10. Before further discussion, it is pertinent to mention here the injury report Ext.Ka-2 of injured Bhagatman Gurung who was examined on 7.2.1994 at 9:25 PM by Dr. S.K. Nautiyal (PW5), which reads as under: - i) Incised wound (stab wound) 3.1 cm x 3 cm x depth not probed on left side lower abdomen oval shape, margin clear cut, end tapeing, 12 cm below umbilicus at 5° Clock position, fresh blood oozing from margin. Opinion:- Injury no.1 is kept under observation. Advised X-ray abdomen in erect position, caused by sharp edged object, duration fresh. 11. Injured Vikram Singh was also medically examined by Dr. S.K. Nautiyal on the same day at 9:11 PM. Injury report of Vikram Singh is Ext.Ka-3, which reads as under:- i) Incised wound (stab wound) 4 cm x 2 cm x intestine coming out from injury on lower abdomen 7 cm below umbilicus at 6° clock position, fresh blood oozing from injury. Opinion:- Injury No.1 kept under observation, advised x-ray abdomen in erect position, caused by sharp edged object. Duration fresh. 12. To prove the above-noted medical reports, the prosecution has examined PW5 Dr. S.K. Nautiyal, who has stated that on 7.2.1994 he was posted as Emergency Medical Officer at Doon Hosptial, Dehradun. On that day, he medically examined injured Bhagatman Gurung and Vikram and found the above- noted injuries. He further stated that the general condition of both the injured were low. Pulse and blood pressure were not recordable. Patients were in sense. He opined that the injuries were fresh and were caused by sharp edged weapon. He also opined that death was also possible with these injuries. He proved the injury reports Ext.Ka-2 and Ka-3. 13. To prove its case further, the prosecution has examined PW1 Harak Bahadur, who has reiterated the version of the FIR and has stated that the information of the said incident was given to him by Anup Singh. He further stated that he had scribed the report from Anup Singh, which is Ext.Ka-1. 14. PW2 Bhagatman Gurung stated that on the date of incident he was a student in school. Some quarrel had taken place between him and brother of appellant/accused in the school. After that he had come to his house. In the evening, he was going to market with Vikram Singh where the appellant/accused met him. He called him and Vikram Singh and told that he will not leave them. First the appellant/accused slapped him and then stabbed knife on his body. The appellant/accused also stabbed knife on Vikram Singh. Both of them received injuries by knife. On their alarm, Anup Singh had come at the spot and who else had come he could not see because due to the injuries he had suffered from vertigo. Thereafter he and Vikram got medically examined. He identified the pant Ext.1 in the trial court which was worn by him at the time of 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. 15. PW3 Anup Singh stated that on 7.2.1994 at about 7-8 PM he was in the market of area Nai Basti. Then he saw Bhagatman and Vikram lying on the road, who were drenched with blood. He stated that he has not seen anyone while beating these injured. At this stage, this witness was declared hostile. 16. PW4 Vikram Thapa stated that on 7.2.1994 at about 7-7:30 PM he was going to market with Bhagatman. Appellant/accused Sanjay Tiwari met them in the market and called Bhagatman. He also went behind him. Appellant/accused told Bhagatman that he had fought with his brother and he will not leave him alive. Thereafter appellant/accused caused injuries to Bhagatman with knife. He tried to run away from the spot but the appellant/accused caught him and also caused injuries to him by knife. On the alarm, Anup Singh and D.S. Bhandari arrived at the spot. At the time of incident, there was electric light. After that he does not know what happened with the accused. He further stated that he and Bhagatman got medically examined in the hospital. 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. PW6 Kishan Lal stated that he was posted as Steward at District Hospital, Dehradun. He stated that the Bed Head Ticket of all the patients deposits in the hospital after they got discharge from the hospital and he used to keep the record of these documents. He proved the bed head tickets Ext.Ka-4 and Ka-5 of Vikram and Bhagatman, respectively. 18. PW7 Sub Inspector M.P. Ashok stated that on 7.2.1994 he was posted as Sub Inspector at Police Station Clement Town. On that day, the investigation of the case was entrusted to him. He further stated that the chik FIR of the case was prepared by Head Mohirror Rajendra Prasad and entries in the G.D. were also made by him. He proved the chik FIR Ext.Ka-6 and carbon copy of G.D. Ext.Ka-7. During the course of investigation, he recorded the statement of the witnesses and inspected the place of occurrence and prepared the site-plan Ext.Ka-8. He further stated that due to rain on the night of incident, blood was not found at the place of incident. During the course of investigation, he also took into his possession blood stained clothes of the injured and prepared the Fards Ext.Ka-9 and Ka-10 and after completing the investigation, he filed the charge sheet Ext.Ka-12 against the appellant/accused. 19. Thereafter the statements of the appellant/accused were recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to him in question form, who has denied the allegations made against him. However, he has not filed any oral or documentary evidence in defence. 20. Learned counsel for the appellant/accused argued that the prosecution has not proved the case against the appellant/accused beyond reasonable doubt. I do not find force in the argument advanced by learned counsel for the appellant/accused for the reason that P.W.2 Bhagatman Gurung, who is the injured witness of the case, has stated in his deposition that on the date of incident some quarrel had taken place between him and brother of appellant/accused in the school. After that he had come to his house. In the evening, he went to market with Vikram Singh where the appellant/accused met him. He called him and Vikram Singh and told that he will not leave them. First the appellant/accused slapped him and then stabbed knife on his body. The appellant/accused also stabbed knife on Vikram Singh. Both of them received injuries by knife. On their alarm, Anup Singh had come at the spot and who else had come he could not see because due to the injuries he had suffered from vertigo. Thereafter he and Vikram got medically examined. 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.4 Vikram Thapa, who is also the injured witness of the case. He too have fully supported the prosecution case in his statement. Apart from above, the evidence of P.W.2 Bhagatman and P.W.4 Vikram Thapa further gets full corroboration from the injury reports Ex.Ka-2 and Ka-3 as well as from the medical evidence of P.W.5 Dr. S.K. Nautiyal, who, during the medical examination, found one stabbed wound on the abdomen of both the injured persons about which he opined that those injuries were caused by some sharp edged weapon and due to the same injury, both the injured could also have been died. General condition of both the injured were also found low. All these facts and circumstances give full support and, therefore, wholly corroborate the statement of injured persons. Thus, as per the evidence discussed above, it is proved that on 7.2.1994 the appellant/accused Sanjay Tiwari caused injuries on the abdomen of Bhagatman Gurung and Vikram Thapa by knife 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. The trial court is correct and justified in convicting and sentencing the appellant/accused as discussed above and I also concur with the view taken by the trial court in convicting and sentencing the appellant/accused as discussed above. 21. For the foregoing reasons, the appeal, being devoid of merits, is dismissed accordingly. The judgment and order dated 21.7.1997 passed by Additional Sessions Judge (E.C. Act), Dehradun in S.T. No.59 of 1994, State Vs. Sanjay Tiwari, in convicting and sentencing the appellant-accused, as discussed above, needs no interference by this Court and the same is hereby made affirmed. Appellant-accused Sanjay Tiwari is on bail. His bail bonds are cancelled. Let him be taken into custody forthwith to serve out the sentence as awarded against him. However, it is made clear that the period already served out in jail by the appellant-accused during investigation, trial or appeal shall be adjusted. 22. A copy of this order along with the record shall be sent back to the trial court concerned for compliance forthwith. (Dharam Veer, J.) June 14, 2010 RG