IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.1743 OF 2001 (Old No.226/1994) Rajendra Singh ……… Appellant Versus The State ……… Respondent Dated: October 6, 2009 Sri G.S. Negi , learned amicus curiae for the appellant Sri B.S. Parihar, 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 1.2.1994 passed by the Additional Sessions Judge, Dehradun in Sessions Trial No.185/1992, State Vs. Rajendra Singh, whereby the learned Sessions Judge has convicted the appellant /accused u/s 307 of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced him to five years’ rigorous imprisonment. 2. I have heard learned counsel for the parties and perused the entire material available on record. 3. In brief, the prosecution case is that complainant (PW4) Smt. Lalita lodged an FIR stating therein that on 1.9.1989 at about 3 P.M. she and her son Shankar (PW3) were sitting in their house. Rajendra Singh of Sugar Mill, Doiwala, who occasionally 2 used to come to her house, came and asked her son Shanker to disclose him the pathway leads to Mohkampur. In response to the same, complainant’s son Shanker went with the appellant-accused in order to disclose the pathway. Thereafter, at about 4:30 P.M., she received the message in her house that her son was shot and lying near the water tank closed to the house of Srichand of Nathanpur. Thereafter, the complainant went there and took her son to the Doon Hospital with the help of other persons present over there. With the same averments, the FIR Ex.Ka-1 was lodged by P.W.4 Smt. Lalita on 2.9.1989 at 12:30 P.M. On the basis of the FIR (Ex.Ka-1), Head Moharrir Narain Singh prepared the Chik FIR of the case, i.e. Ex.Ka-6 and he also made an endorsement to the same in the G.D., i.e. Ex.Ka-7. The investigation of this case was entrusted to P.W.6 Satish Kumar Tyagi. Injured Shanker was medically been examined on 1.9.1989 at 6:10 P.M. by P.W.8 Dr. G.P. Singh, who after the medical examination prepared the injury report i.e. Ex.Ka-9. Injured Shanker was also referred for the x- ray and after the examination, x-ray report Ex.Ka-3 was prepared by P.W.6 Dr. B.C. Ramola. During the course of investigation the I.O. inspected the place of occurrence and prepared the site plan, i.e. Ex.Ka-4. The I.O. also took in his possession the bloodstained clothes of injured Shanker given to him by Smt. Lalita (mother of injured) and prepared Fard i.e. Ex.Ka-2. Appellant-accused Rajendra Singh was arrested on 9.11.1989 and the entry thereof was made in the G.D., the copy of which is Ex.Ka-8. The I.O. during 3 investigation recorded the statements of witnesses and after completing the investigation, submitted the charge sheet against the appellant/accused in the court, i.e. Ex.Ka-5. 4. After receiving the charge sheet, learned ACJM, Dehradun committed the case to the court of Sessions on 16.12.1992 after giving necessary copies to the appellant/accused as provided under Section 207 Cr.P.C. The case was transferred to Additional Sessions Judge by the Sessions Judge for disposal as per law. 5. Learned Additiional Sessions Judge, Dehradun has framed the charge against the appellant/ accused Rajendra Singh on 17.9.1993 u/s 307 IPC. The charge was read over and explained to appellant/ accused, who pleaded not guilty and claimed to be tried. 6. To prove its case, the prosecution has examined P.W.1 Ram Kishan, who informed the complainant about the injured, P.W.2 Rangi Lal, who arranged the three-wheeler to take the injured from the place of occurrence to the hospital, P.W.3 Shankar, injured, P.W.4 Smt. Lalita, complainant, P.W.5 Sriram, before whom the complainant gave the bloodstained clothes of the injured to the I.O., P.W.6 Dr. B.C. Ramola, under whose supervision x-ray was conducted, P.W.7 S.I. Satish Kumar Tyagi, I.O. of the case and P.W.8 Dr. G.P. Singh, who medically examined the injured. 7. After that the statement of the appellant/ accused was recorded u/s 313 Cr.P.C. The oral and 4 documentary evidence was put to him in question form, who denied the allegations made against him and stated that he has been falsely implicated due to enmity. However, he had not produced any oral or documentary evidence in defence. 8. After hearing learned counsel for the parties and appreciating the entire material available on record, learned Additional Sessions Judge, Dehradun vide judgment and order dated 1.2.1994 convicted and sentenced the appellant/accused as discussed above. Feeling aggrieved by the aforesaid judgment and order, the accused/appellant has preferred the present appeal. 9. Before any further discussion, it is pertinent to mention the injury report of the injured Shanker who was medically been examined on 1.9.1989 at 6:10 P.M. by P.W.8 Dr. G.P. Singh and the following injuries were found in the injury report Ex.Ka-9: - 1. “Wound of entrance 2 cms x 2 cms x oval shape, inverted margins with multiple wounds. Size of wound 1 cm x 1 cm scattered in an area of 5 cms x 4 cms left side back (lumber region) 2 cms. lateral to midline. Bleeding present. No tattooing & blackening present around wound. 2. Lacerated wound 1.5 cm x 1 cm x skull deep on left side forehead 5 cms above left eyebrow. 5 Opinion- Injury no.1 caused by firearm. Injury no.2 caused by blunt object. Advised x-ray back & abdomen and skull. Duration fresh.” 10. To prove the above-said injury report, the prosecution has examined P.W.8 Dr. G.P. Singh who stated that on 1.9.1989 at 6:10 P.M., he was posted as EMO in Doon Hospital, Dehradun. On that day he had medically examined the injured Shanker and found the above-mentioned injuries. After examining the injured Shanker, he prepared the injury report Ex.Ka-9. He further stated that the injuries could be caused on 1.9.1989 at about 3:30 P.M. He further stated that if the injured would fall down on the earth by mouth- facing after receiving the injury no.1, then the injury no.2 could be possible to come on the forehead. 11. To prove the x-ray report, the prosecution has examined P.W.6 Dr. B.C. Ramola who stated that on 2.9.1989 he was posted as Radiologist in Doon Hospital, Dehradun. Injured Shanker was referred for the x-ray of stomach, back and head. X-ray was conducted under his supervision by the x-ray technician and after seeing the x-ray, he prepared the x-ray report Ex.Ka-3. 12. To further prove its case, the prosecution got examined P.W.1 Ram Kishan who stated that on 1.9.1989 at about 3:45 P.M., he was going towards the field having sickle in his hand. In the pathway, near the house of Sriram at the distance of about 50 steps, a boy was lying facing towards the earth. He identified that boy as Shankar who was lying there. The blood 6 was oozing from his back and no one was there near that injured person. Injured Shankar asked him to inform at his house, in pursuance of which he went to the village Nehru Gram, Mohalla Garwhali and informed the injured’s mother about the injuries and thereafter he went for his work. 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. 13. P.W.2 Rangi Lal stated that on 1.9.1989 in between 4:30 to 5 PM, he was coming back from his duty. He was returning from village Majri after completing his duty on tractor and was returning on foot. He saw that a boy was lying there having injuries on his back. He identified that injured boy as Shanker. He did not know Shanker previously but he knew his mother previously. Mother of injured Shanker asked him to take Shanker to the hospital and then he arranged a three-wheeler and thereafter brought the injured to the hospital. Mother of the injured also went in that three-wheeler. After admitting the injured in the hospital, he went to his village. 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 also reliable and believable. 14. P.W.3 is Shanker, injured witness, who stated that he knows the appellant-accused Rajendra Singh who is resident of Doiwala. The incident took 7 place on 1.9.1989. On the date of incident, the appellant-accused came at his house at about 3.00 PM. He asked him to disclose his pathway which leads to Mokhampur. He went with the appellant-accused in order to show him the pathway leads to village Mohkampur. At the distance of about 25 steps at the ‘Khadanja’ near the field of Sardar Dalip Singh, appellant-accused shot a fire which hit on his back and he fell down facing towards the earth. Two other persons namely Lakhan and Devendra were also there with the appellant-accused, names of whom were disclosed by the appellant-accused. Lakhan had put his pistol on his temporal region and tried to cause fire but immediately the appellant-accused caught hold his hand and said that the fire shot by him was sufficient for his (this witness) death. The appellant-accused Rajendra had shot fire upon him by the country-made pistol. Thereafter, they fled from there. After some time of his falling down, he became unconscious. When he regained some senses, he dragged himself towards the house of Sriram where Ram Kishan had come. Ram Kishan (PW1) had asked how he was lying there. He asked Ram Kishan to inform at his house about the incident. He further stated that the accused shot fired upon him at about 3:30 P.M. however he did not know the reason of shooting. He was brought to Doon Hospital by Rangi Lal (P.W.2) and his mother on a three-wheeler. He was wearing Pant and shirt at the time of incident. He identified the said bloodstained Pant and Shirt in the court i.e. Ex.1 & 2. His mother handed over both the blood stained pant and shirt to 8 the I.O. He knew the appellant-accused Rajendra Singh previously. He met the appellant-accused in Inter College, Doiwala at about 1-1½ years ago and since then he know him. 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. 15. P.W.4 Smt. Lalita stated that on the date of incident at about 3:00 PM, appellant-accused Rajendra Singh came at her house to call her son Shankar and asked Shankar to disclose the pathway leading to Mohkampur. Appellant-accused Rajendra Singh was also accompanied by two others, whose names she did not know. The name of Rajendra was disclosed to her by her son. Her son did not came back upto 4.00 PM. Thereafter, Ram Kishan approached her house and informed that her son was shot and lying near the house of Srichand near the water-tap. She went on the spot where Rangi Lal (PW2) met her. Rangi Lal managed a three wheeler and took Shanker to the hospital. Injured Shanker was medically been examined in the hospital and she stayed with her son in the hospital in the night. Next day, she went to the Pradhan of Village Raipur having the medical report and got scribed the FIR from him and lodged the same in the police station. Since the condition of Shankar was precarious in the night and she was alone there, therefore, she could not go at the police station on the same day. She also proved that report as Ex.Ka-1. Her son Shanker received the gunshot injuries on the 9 back. She also identified the appellant-accused in the court. This witness was cross-examined at length by the defence counsel but nothing material could be brought out in her evidence which may render her testimony unreliable. 16. P.W.5 is Sriram who stated that on the date of incident, he was present in the hospital to look after his ailing brother, who was admitted in the hospital. The mother of Shanker namely Smt. Lalita had handed over the bloodstained clothes of Shanker to the I.O. in his presence. The I.O. also prepared the Fard on the spot, i.e. Ex.Ka-2. In the cross-examination of this witness also nothing material could be elicited which may turn his testimony untrustworthy. 17. P.W.7 is S.I. Satish Kumar Tyagi, IO of the case, who stated that on 2.9.1989 he was posted as S.I. at P.S. Raipur. Investigation of this case was entrusted to him. During the course of investigation, he recorded the statements of witnesses. Blood stained clothes of injured was taken into possession by him which were given to him by Smt. Lalita in the hospital. Recovery memo was also prepared. Blood stained clothes were sealed on the spot. He also inspected the place of occurrence and prepared the site plan, i.e. Ex.Ka-4. After completing the investigation, he filed the charge sheet against the appellant- accused, i.e. Ex.Ka-5. Chik FIR of this case was prepared by H.M. Naraian Singh, i.e. Ex.Ka-6. Necessary entry was also made by the same Head Moharrir in the G.D., i.e. Ex.Ka-7. Appellant-accused 10 Rajendra Singh was arrested on 9.11.1989 and entry in this regard was also made in the G.D. by Constable Clerk Suresh Kumar, i.e. Ex.Ka-8. 18. After that the statement of the appellant/ accused was recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to him in question form, who denied the allegations made against him and stated that he has been falsely implicated due to enmity. However, he had not produced any oral or documentary evidence in defence. 19. Sri G.S. Negi, learned amicus curiae for the appellant-accused argued that the prosecution has not been successful in proving its case beyond reasonable doubt against the appellant-accused. I do not find any force in this argument as P.W.3 Shankar has deposed that the incident took place on 1.9.1989. On the date of incident, the appellant-accused came at his house at about 3.00 PM. He asked him to disclose his pathway, which leads to Mokhampur. He went with the appellant- accused in order to show him the pathway leads to village Mohkampur. At the distance of about 25 steps at the ‘Khadanja’ near the field of Sardar Dalip Singh, appellant-accused shot a fire which hit on his back and he fell down facing towards the earth. The appellant-accused Rajendra had shot fire upon him by the country-made pistol. Thereafter, the appellant-accused fled from there. He further stated that after some time of his falling 11 down, he became unconscious. When he regained some senses, he dragged himself towards the house of Sriram, where Ram Kishan had come. Ram Kishan (PW1) had asked how he was lying there. He asked Ram Kishan to inform at his house about the incident. The accused shot fired upon him at about 3:30 P.M. He was brought to Doon Hospital by Rangi Lal (P.W.2) and his mother on a three-wheeler. He was wearing Pant and shirt at the time of incident. He identified the said bloodstained Pant and Shirt in the court i.e. Ex.1 & 2. His mother hand handed over both the blood stained pant and shirt to the I.O. He knew the appellant-accused Rajendra Singh previously. He met the appellant-accused in Inter College, Doiwala at about 1-1½ years ago and since then he know him. Nothing could be elicited in his cross- examination which could have proven his testimony untrustworthy. The evidence of P.W.3 Shankar also gets corroborated from the evidence of P.W.4 Smt. Lalita and also with the circumstantial evidence of P.W.1 Ram Kishan, who informed about the injuries to his mother and P.W.2 Rangi Lal, who took the injured in injured condition by arranging a three wheeler from the place of occurrence to the hospital and P.W.5 Sriram, before whom mother of injured gave the bloodstained clothes to the I.O. His evidence also gets further corroboration from the injury report Ex.Ka- 12 9, x-ray report Ex.Ka-3 and the medical evidence of P.W.8 Dr. G.P. Singh and P.W.6 Dr. B.C. Ramola, which also proves the gunshot injury on the back of injured Shanker. Thus, from the facts and circumstances as discussed above, the prosecution has proved its case against the appellant-accused beyond reasonable doubt for the offence punishable u/s 307 IPC. 20. Learned counsel for the appellant-accused further argued that the FIR in the case is delayed and the delay in lodging the FIR is not explained by the prosecution. I again do not find any force in this argument as P.W.4 Smt. Lalita has clearly stated in her evidence that because the condition of her son Shankar was precarious in the night and she was alone there, therefore, she could not lodged the report at the police station on the same day. The injuries were caused to the injured Shankar on 1.9.1989 at about 3:30 P.M. and thereafter on 2.9.1989 at 12.30 P.M., the report was lodged in the police station. Therefore, the delay in lodging the FIR has sufficiently been explained by the prosecution and that does not fatal for the prosecution case. 21. For the evidence as discussed above, I do not find any error or illegality in the judgment and order dated 1.2.1994 passed by the Addl. Sessions Judge, Dehradun in convicting and sentencing the appellant- accused u/s 307 IPC for a period of five years R.I. and no interference in the trial court’s judgment is warranted. 13 22. Resultantly, the appeal is devoid of merits and is accordingly dismissed. The judgment and order dated 1.2.1994 passed by the Addl. Sessions Judge, Dehradun in S.T. No.185 of 1992, State Vs. Rajendra Singh, convicting and sentencing the appellant-accused as discussed above, is hereby affirmed. The appellant is on bail. Let him be taken into custody to serve out the sentence as awarded by the trial court. The period already served out by the appellant-accused in jail during investigation, trial or appeal shall be adjusted after verifying the record. (Dharam Veer, J.) October 6, 2009 Rajeev Dang