IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL GOVERNMENT APPEAL NO.1128 OF 2001 (OLD NO.507/1992) The State ……… Appellant Versus Sumer Chand S/o Singaroo R/o Village Ramgarh, O.P. Nayagaon, Kotwali, District Dehradun ……… Respondent Dated: February 10, 2009 Sri M.A. Khan, learned brief holder for the State/appellant Sri D.S. Mehta, learned amicus curiae for the respondent HON. DHARAM VEER, J. This appeal, preferred by the State/appellant under Section 378 of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 25.11.1991 passed by Additional Sessions Judge, Dehradun in Sessions Trial No.22 of 1991, State Vs. Sumer Chand, whereby the learned Addl. Sessions Judge acquitted the respondent- Sumer Chand of the offences punishable u/s 304 and 324 of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.). 2. I have heard Sri M.A. Khan, learned brief holder for the State/appellant as well as Sri D.S. Mehta, learned amicus curiae for the respondent and perused the entire material available on record. 3. In brief, the prosecution story is that Smt. Shakuntala Devi (P.W.2) lodged the F.I.R. at Police Station Raipur, District Dehradun with the averments that she was married to the respondent-Sumer Chand before fifteen years. Due to some reasons, she along with her children was living in her mother’s house at Village Nathanpur, P.S. 2 Raipur, Dehradun for the last three years and her husband Sumer Chand was also living with her in her parental house. Her husband used to work as a labourer. Before 4-5 days of the said incident, her husband has gone out from the house for doing the work of labour. On 1.3.1990 at about 09:00 P:M he came back to house. At that time she was sitting in the courtyard near the kitchen with her mother and her elder daughter Anita and rest of the children were sleeping. She told her husband that the food is ready and asked him for food. Then she served the food to him. After taking some food, her husband stated that now he is not the same son-in-law as he was before. Her husband further stated that she has given him food like a dog then she asked him about the defect in the food. On this her husband replied that even the dog will not eat this food. Then her husband went inside the house in anger and after taking Pathal he started assaulting her, due to which she received injury in her right hand. In the courtyard her mother came to intervene in between the fight then the respondent also caused injury on her mother’s head due to which her mother fell down and died at the spot. After that the respondent ran away from the place of occurrence. With the same averments, the F.I.R. was lodged by Smt. Shakuntala Devi (P.W.2) at Police Station Raipur, District Dehradun on 1.3.1990 at 11:30 P:M. That F.I.R. is Ext.Ka-2. On the basis of this F.I.R., Chik F.I.R. Ext.Ka-11 was prepared by Constable Clerk Darshan Lal. The necessary entry was also made in the G.D., carbon copy of which is Ext.Ka-13. The investigation of this case was entrusted to Sub Inspector Rukan Singh (P.W.5), who prepared the inquest report of the dead body on 2.3.1990. The inquest report is Ext.Ka-4. Police Form No.13 i.e. Ext.Ka-5, sketch of the dead body i.e. Ext.Ka-6, letter to C.M.O i.e. Ext.Ka-7 and Namuna Mohor i.e. 3 Ext.Ka-14 were also prepared. Thereafter the dead body of the deceased Smt. Darsha was sent for postmortem. The postmortem of the dead body was conducted on 2.3.1990 at 04:45 P:M. The postmortem report is Ext.Ka-1. The injured Smt. Shakuntala Devi was medically examined by Dr. Yatish Goel (P.W.3) on 2.3.1990 at 12:10 A:M. The injury report is Ext.Ka-3. During the course of investigation, the Investigating Officer has recovered the bloodstained Pathal from the place of occurrence and has prepared the FARD i.e. Ext.Ka-8. He also took the bloodstained soil and plain soil from the place of occurrence and prepared the FARD i.e. Ext.Ka-12. The I.O. also inspected the place of occurrence and prepared the site-plan, which is Ext.Ka-9. During the course of investigation, the I.O. also recorded the statement of the witnesses and after completing the investigation he filed the charge sheet against the respondent/accused u/s 304 and 324 IPC. That charge sheet is Ext.Ka-10. 4. Learned Chief Judicial Magistrate, Dehradun committed the case to the court of Sessions on 14.2.1991 after giving necessary copies to the respondent/accused, as provided u/s 207 Cr.P.C. 5. It appears from record that the case was transferred to Additional Sessions Judge, Dehradun for hearing and disposal according to law. 6. On 3.4.1991, learned Addl. Sessions Judge, Dehradun framed the charge of offence punishable under Sections 304 and 324 I.P.C against the respondent/accused-Sumer Chand. The charge was read over and explained to the respondent/accused, who pleaded not guilty and claimed to be tried. 4 7. To prove its case, the prosecution has examined P.W.1 Dr. B.C. Ramola, who has conducted the postmortem of the dead body of the deceased Smt. Darsha, P.W.2 Smt. Shakuntala-injured eyewitness and complainant of the case, P.W.3 Dr. Yatish Goel, who has medically examined the injured Smt. Shakuntala (P.W.2), P.W.4 Km. Anita-eyewitness and the daughter of the respondent and Smt. Shakuntala, P.W.5 Rukan Singh- Investigating Officer of this case. 8. After that the statement of the respondent/accused was recorded under Section 313 Cr.P.C. The oral and documentary evidence was put to him in question form, who has denied the allegations made against him. However, in defence, he has not produced any oral or documentary evidence. In reply to one of the questions, he has stated that he has been falsely implicated in the said case. He further stated that his wife Shakuntala has illicit relations with Kalam Singh and Kalam Singh has committed murder of his (Sumer Chand) mother. He further stated his wife has given evidence in favour of Kalam Singh and after that she went to her parental house. 9. After hearing learned counsel for the parties and appreciating the entire evidence available on record, learned Additional Sessions Judge, Dehradun vide his judgment and order dated 25.11.1991 acquitted the respondent/accused-Sumer Chand u/Ss 304 and 324 I.P.C. Against the said judgment and order dated 25.11.1991, the State has filed this appeal. This appeal was filed in the Hon’ble High Court of Judicature at Allahabad and the appeal was admitted on 3.8.1992. After creation of the State of Uttaranchal (now Uttarakhand), 5 this appeal was transferred to the High Court of Uttarakhand u/s 35(2) of the U.P. Reorganization Act, 2000. 10. Before further discussion, it is pertinent to mention the ante-mortem injuries found on the dead body of the deceased Smt. Darsha, whose postmortem was conducted by Dr. B.C. Ramola (P.W.1) on 2.3.1990 at 04:45 P:M and he has found the following ante-mortem injuries on her body, which are reproduced as under:- (i) An incised wound 12cm x 2cm x bone deep on front forehead, left side extending from medial end left eyebrow to left side posterior region. (ii) Deformity left forearm and fracture bone rational upto upper part. 11. To prove the above-noted ante-mortem injuries, the prosecution has examined Dr. B.C. Ramola (P.W.1), who has stated that on 2.3.1990 he was posted as Radiologist in Doon Hospital. On the same day he has conducted the postmortem of the dead body of the deceased Smt. Darsha and has found the above-noted ante-mortem injuries on her body. He has proved the postmortem report Ext.Ka-1 which was prepared by him. He further stated that there was a fracture on the front parital bone of the brain. He opined that the death of the deceased took place due to shock, hemorrhage and coma and due to the head injury. 12. The injured Smt. Shakuntala Devi (P.W.2) was also medically examined by Medical Officer, Dr. Yatish Goel (P.W.3) on 2.3.1990 at 12:10 A:M and has found the following injuries on her body, which are reproduced as under:- 6 (i) Incised wound 10cm x 2cm x muscle deep on posterior aspect of right elbow joint and extending upto flexor surface of right forearm, 2cm below elbow. Fresh bleeding present. (ii) Incised wound 1.5cm x 0.5cm x muscle deep on back of right elbow, 2cm above and behind injury no.1. Fresh bleeding present. Opinion:- Injury Nos.1 & 2 are caused by sharp edged weapon, duration fresh, injury no.2 simple in nature, injury no.1 kept under observation, advised X-ray right elbow joint and AP view and lateral view. 13. To prove the above-noted injury report, the prosecution has examined Dr. Yatish Goel (P.W.3), who has stated that on 2.3.1990 he was posted as Medical Officer at Coronation Hospital, Dehradun. He further stated that these injuries could be caused on 1.3.1990 at about 09:00 P:M. He has proved the injury report Ext.Ka- 3. 14. Further to prove its case, the prosecution has examined P.W.2 Smt. Shakuntala, who has stated that the respondent Sumer is her husband. On the date of the incident she was living at her mother’s house and her husband was also living there. The respondent has come back to house after doing work then she served food to him. At that time her daughter Anita and her mother Darsha were also there. After seeing the food, the respondent said that even the dogs do not eat such type of food and now he is not the same son-in-law as he was before. After that the respondent/accused assaulted her with Pathal due to which she received injury on her right hand. Her mother came there to save her then the 7 respondent/accused also caused injury on her mother’s head with Pathal due to which she died at the spot. Thereafter the respondent ran away from the place of occurrence. Then she dictated the report to Basant Singh and lodged the same report Ext.Ka-2 at the police station. After that she was medically examined by the Medical Officer. This witness was cross-examined at length by the defence counsel but nothing has come out from her statement which may create any doubt in her statement. 15. P.W.4 is Km. Anita, who is the eyewitness of the said incident and has stated that she was living in the house of her grandmother (NANI) Darsha with her mother. On the date of the incident at about 09:00 P:M she was with her mother in the kitchen. Her father has came back to house after doing work then her mother has served him food. On this, her father stated that even the dogs do not eat such type of food then her mother asked what is the defect in the food. Then her father said that now he is not the same person as he was before and she (Smt. Shakuntala) gives him food like a dog. After that her father brought Pathal from inside the house and caused the injury in the hand of her mother. When her grandmother (NANI) Darsha came to save her mother then her father also caused injury on the head of her grandmother. Due to which blood oozed out and her grandmother fell down and died at the spot. After that her father fled from the place of occurrence. This witness was cross-examined at length by the defence counsel but nothing has come out from her statement which may create any doubt in her statement. 16. P.W.5 is Rukan Singh, who has stated that the investigation of this case was entrusted to him on 1.3.1990. He prepared the inquest report at the place of 8 occurrence, which is Ext.Ka-4. Form No.13 i.e. Ext.Ka-5, sketch of the dead body i.e. Ext.Ka-6 and letter to C.M.O. i.e. Ext.Ka-7 were prepared by him. He took the bloodstained Pathal into his possession and prepared the FARD, which is Ext.Ka-8. He also prepared the site-plan of the place of occurrence which is Ext.Ka-9. During the course of investigation he recorded the statement of the witnesses and after completing the investigation he filed the charge sheet. The charge sheet is Ext.Ka-10. He further stated that the Chik F.I.R. Ext.Ka-11 of this case was prepared by Constable Clerk Darshan Lal. He has also prepared the FARD of the bloodstained soil and plain soil, which is Ext.Ka-12. He further stated that the recovered item was sent for chemical examination. 17. After that the statement of the respondent/accused was recorded under Section 313 Cr.P.C. The oral and documentary evidence was put to him in question form, who has denied the allegations made against him. However, in defence, he has not produced any oral or documentary evidence. In reply to one of the questions, he has stated that he has been falsely implicated in the said case. He further stated that his wife Shakuntala has illicit relations with Kalam Singh and Kalam Singh has committed murder of his (Sumer Chand) mother. He further stated his wife has given evidence in favour of Kalam Singh and after that she went to her parental house. 18. Sri M.A. Khan, learned brief holder for the State has submitted that on the basis of the evidence discussed above, the State has proved the case beyond reasonable doubt against the respondent/accused u/s 304 Part II and 324 IPC and has further submitted that the judgment of 9 the trial court is based on the presumption and surmises. I find substance in the argument advanced by learned brief holder for the State as the injured eyewitness Smt. Shakuntala Devi (P.W.2) has stated in her statement that the respondent Sumer is her husband. On the date of the incident she was living at her mother’s house and her husband was also living there. The respondent has come back to house after doing work then she served food to him. At that time her daughter Anita and her mother Darsha were also there. After seeing the food, the respondent said that even the dogs do not eat such type of food and now he is not the same son-in-law as he was before. After that the respondent assaulter her with Pathal due to which she received injury on her right hand. Her mother came there to save her then the respondent also caused injury on her mother’s head with Pathal due to which she died at the spot. Thereafter the respondent ran away from the place of occurrence. Then she dictated the report to Basant Singh and lodged the same report Ext.Ka- 2 at the police station. After that she was medically examined by the Medical Officer. The statement of this witness gets corroboration from the statement of another eyewitness Km. Anita (P.W.4), who is the daughter of the respondent and Smt. Shakuntala Devi (P.W.2), and is very natural and independent witness. The statement of Smt. Shakuntala Devi (P.W.2) also gets corroboration from the injury report Ext.Ka-3, postmortem report Ext.Ka-1, from the statement of Dr. Yatish Goel (P.W.3) who has proved the injury report Ext.Ka-3 of the injured Smt. Shakuntala Devi and from the statement of Dr. B.C. Ramola (P.W.1), who has conducted the postmortem of the dead body of the deceased Smt. Darsha. Thus, from the evidence discussed above, it is proved that the respondent/accused has caused injuries to Smt. Shakuntala Devi (P.W.2) with 10 Pathal on 1.3.1990 at 09:00 P:M at Village Nathanpur, P.S. Raipur, District-Dehradun and also caused injuries on the head of Smt. Darsh (deceased) when she came in between to save her daughter Smt. Shakuntala Devi (P.W.2) from the clutches of the respondent/accused. Due to the injuries caused by the respondent/accused with Pathal, Smt. Darsha fell down and died at the spot. 19. Learned brief holder for the State has further argued that the findings given by the trial court are also not correct, justified and reasonable as the findings are against the evidence available on record. I find substance in the argument advanced by learned brief holder for the State, due to following reasons:- (a) The Investigating Officer, S.I. Rukan Singh has stated that he took the bloodstained soil and simple soil from the place where the dead body was lying at that time but the court below has not relied on the statement of Investigation Officer and said that it creates a doubt in the prosecution story. This finding of the court below is against the evidence on record as the bloodstained soil was taken from the place where the dead body was lying. This fact does not at all creates any doubt in the prosecution story. Hence, the finding of the court below is against the evidence available on record. (b) The trial court has further given a finding that the distance between the place of occurrence and the police station, as written in the Chik F.I.R., is 6Kms and in the inquest report the distance is shown as 7Kms. The trial court has held in its finding that this fact creates doubt in the prosecution story but the 11 finding of the trial court is not reasonable and justified as it was an approximate distance mentioned in the Chik F.I.R. and the inquest report. Hence, this finding of the court below is only based on surmises and is not sustainable in the eye of law. (c) The court below has also given a finding that the incident took place at 9:00 P:M at the time of night and there was no source of light then how Smt. Shakuntala (P.W.2) and Km. Anita (P.W.4) saw the incident. This finding of the court below is also not sustainable and against the evidence as the identification of the respondent/accused was not at all difficult for Smt. Shakuntala (P.W.2) and Km. Anita (P.W.4) because he was the husband of Smt. Shakuntala (P.W.2) and father of Km. Anita (P.W.4) and also the incident took place near the kitchen and normally light is available in the kitchen. (d) Another finding given by the court below is that the F.I.R. was not dictated by Smt. Shakuntala Devi (P.W.2) to Basant Singh. But Smt. Shakuntala Devi (P.W.2) in her statement on oath has stated that she has dictated the report to Basant Singh. Hence, this finding of the court below is also against the evidence and facts and circumstances of the case and is therefore not justified and correct. 20. As per the facts and circumstances of the case and the evidence discussed above, it is evident that the respondent/accused has not caused injuries with the 12 intention or motive to kill Smt. Darsha. Hence, by causing injuries on the head of Smt. Darsha by Pathal, without any premeditation in a sudden fight in the heat of passion upon a sudden quarrel, the respondent/accused has committed the offence which falls u/s 304 Part II IPC. The respondent/accused has also caused injuries to Smt. Shakuntala Devi (P.W.2) without any intention or motive to kill her, which were simple in nature. Hence, the offence u/s 324 IPC, for causing the injuries to Smt. Shakuntala Devi (P.W.2) is also proved beyond reasonable doubt by the prosecution. 21. From the evidence discussed above, the prosecution has proved the case against the respondent/accused Sumer Chand under Sections 304 Part II and 324 I.P.C. beyond reasonable doubt and he is found guilty for the above said offences. 22. Learned amicus curiae for the respondent/accused has submitted that now the respondent/accused is about 58 years’ old. He is a laborer and is also ailing with serious diseases, hence, leniency must be taken for awarding the sentence. After considering all the facts and circumstances of the case, it would meet the end of justice by sentencing the respondent/accused to seven years’ rigorous imprisonment. Order The appeal is allowed. The judgment and order dated 25.11.1991 passed by Additional Sessions Judge, Dehradun in Sessions Trial No.22 of 1991, State Vs. Sumer Chand, is set aside. The respondent/accused Sumer Chand is convicted u/s 304 Part II and is sentenced to undergo seven years’ R.I. He is further 13 convicted u/s 324 I.P.C. and is sentenced to undergo one year’s R.I. It is also directed that both the sentences shall run concurrently. The sentence passed by the respondent/accused during the period of investigation, trial and appeal shall be adjusted. Let the lower court’s record be sent back for compliance of the order forthwith. (Dharam Veer, J.) 10.02.2009 RG