IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No.29 of 2001 1.Gurbachan Singh S/o Shri Tara Singh 2.Harjeet Singh S/o Shri Gurbachan Singh Both residents of Village Chandeli P.S. Khatima, District Udham Singh Nagar …..Appellants Versus State of Uttaranchal (Uttarakhand) ….Respondent Shri J.S. Virk, Advocate present for the appellants. Shri Prabhakar Joshi, Brief Holder present for the State. Dated: 9th May, 2011 Coram: Hon’ble Prafulla C. Pant, J. Hon’ble V.K. Bist, J. Prafulla C. Pant, J. (Oral) This appeal, preferred under Section 374 of Code of Criminal Procedure, 1973 (for short Cr.P.C), is directed against the judgment and order dated 14th February, 2001 passed by Additional Sessions Judge, Haldwani (District Nainital) in Sessions Trial No.227 of 1995, whereby said court has convicted the appellants Gurbachan Singh & Harjeet Singh under Section 302 read with Section 34 of Indian Penal Code, 1860 (for short I.P.C) and under Section 323 read with Section 34 I.P.C. Each one of them has been sentenced to imprisonment for life and directed to pay fine of ` 2,500/- under Section 302/34 I.P.C. Each one of the convicts is further sentenced to undergo rigorous 2 imprisonment for a period of six months under Section 323 read with Section 34 I.P.C. 2. Heard learned counsel for the parties and perused the lower court record. 3. Prosecution story, in brief, is that on 08.03.1995 at about 6:30 p.m. Pratap Singh (deceased) was coming to his home from his field in village Chandeli, when accused/appellants Gurbachan Singh armed with sword and his son Harjeet Singh armed with LATHI intercepted the deceased and hurled abuses at him. They (accused/appellants) had previous enmity with Pratap Singh (deceased). When Pratap Singh asked the accused/appellants to desist from using foul language against him, accused/appellant Gurbachan Singh gave a blow on the head of Pratap Singh and accused/ appellant Harjeet Singh gave a blow with a LATHI. On hearing shrieks of Pratap Singh, his son Rajendar Singh (P.W.2) and his wife Prakash Kaur (P.W.3), who were cutting grass in the nearby field, rushed to save him, but they were also assaulted by the two-accused/ appellants. The incident was also witnessed by P.W.6- Harnek Singh. The three eye witnesses took Pratap Singh to his house, and immediately called P.W.1- Pargat Singh (eldest son of the deceased), who took injured Pratap Singh, Rajendra Singh & Prakash Kaur, in a Tractor Trolley for treatment to Hospital. On his way, he (P.W.1) orally informed the Police at Police Station, Khatima, who advised him to get the Medical examination done of the injured. Then P.W.1-Pargat Singh took his injured father to the Hospital at Pilibhit and came back, got First Information Report (Ext.A-1) scribed through Kulvindar Singh and gave it on the very day at about 22:30 hours (10:30 p.m.) at the Police Station, Khatima. (Earlier Police Station, Khatima was part of District Nainital, now part of District Udham Singh Nagar). On the basis of said report, P.W.9-Constable Naresh Chandra registered crime no.69 of 1995 relating to offences punishable under Section 324, 504 and 506 I.P.C. and prepared Check Report (Ext.A-7), and made necessary entries in the General Diary. The investigation was taken up by P.W.10-Sub Inspector Mohd. Iqbal. In the District Hospital, Pilibhit, where Pratap Singh (injured) was undergoing treatment, he succumbed to the injuries on 09.03.1995 at about 6:30 a.m. On this, the Police got the case converted relating to offence punishable under Section 304 I.P.C. (instead of 324 I.P.C.). Before the death of Pratap Singh, injuries on the person of Pratap Singh (when he was alive), that of Rajendar Singh (P.W.2) and Prakash Kaur (P.W.3) were recorded by P.W.8-Dr. Pramod Kumar Mishra on 08.03.1995, who prepared Injury Reports Ext.A-4, Ext.A-6, and Ext.A-5 respectively. On 09.09.1995 at 7:30 a.m., Police took dead body of Pratap Singh in its possession and prepared Inquest Report (Ext.A-10), Police Form No.33 (Ext.A-11), Letter to Chief Medical Officer (Ext.A-12 & Ext.A-13) requesting for post mortem examination, Police Form No.13 (Ext.A-14), Sketch of dead body (Ext.A-15) and Sample Seal (Ext.A-16). The dead body was sent, in sealed condition, for post mortem 4 examination. P.W.7-Dr. Vimal Kumar conducted post mortem examination on 09.03.1995 at about 4:15 p.m., who recorded three ante mortem injuries, and prepared Autopsy Report (Ext.A-3). The Medical Officer- Dr. Vimal Kumar opined, in the Autopsy Report, that the deceased had died of Coma, as a result of ante mortem injuries. After interrogating the witnesses and preparing the site-plan (Ext.A-22), the Investigating Officer arrested the two accused, and got recovered weapons, used in the crime, in respect of which recovery memo (Ext.A-2) was prepared on 12.03.1995. On completion of investigation, charge sheet (Ext.A-23) was filed by the Investigating Officer against both the accused, namely, Gurbachan Singh and Harjeet Singh for their trial in respect of offence punishable under Section 304 I.P.C. 4. The Magistrate, on receipt of the charge sheet, after giving necessary copies to the accused, as required under Section 207 Cr.P.C., appears to have committed the case to the Court of Sessions for trial. On 11.07.1995, after hearing the parties, the trial court framed charge of offences punishable under Section 302 and 323 I.P.C. against the two accused, namely, Gurbachan Singh and Harjeet Singh, who pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W.1-Pargat Singh (informant), P.W.2-Rajendar Singh (injured eye witness), P.W.3-Prakash Kaur (widow of the deceased and eye witness), P.W.4-Avtar Singh & P.W.5 Nirmal Singh (both witnesses of recovery of weapons on pointing out of the accused), P.W.6-Harnek Singh (an eye witness), P.W.7-Dr. Vimal Kumar, who conducted post mortem examination, P.W.8-Dr. Pramod Kumar Mishra, who recorded injuries on the person of deceased (before his death) and on the person of two eye witnesses (P.W.2 & P.W.3), P.W.9-Constable Naresh Chandra, who prepared Check Report and made entry in the General Diary, and P.W.10-Sub Inspector Mohd. Iqbal, who investigated the crime. Oral and documentary evidence was put to the accused by the trial court under Section 313 Cr.P.C., in reply to which they pleaded evidence adduced against them, was false. However, no evidence, in defence, was adduced. The trial court after hearing the parties found that prosecution has successfully proved the charge of offence punishable under Section 302 read with Section 34 I.P.C. and one punishable under Section 323 read with Section 34 I.P.C. against both the accused/appellants, namely, Gurbachan Singh and Harjeet Singh and convicted them, accordingly. After hearing on sentence, each one of the convicts was sentenced to imprisonment for life and directed to pay fine of ` 2,500/-, in default of payment of which the defaulter had to further undergo rigorous imprisonment for a period of six months. The convicts were further sentenced to undergo rigorous imprisonment for a period of six months under Section 323 read with Section 34 I.P.C. Aggrieved by said judgment and order dated 14.02.2001 passed by Additional Sessions Judge, Haldwani in Sessions Trial No.227 of 1995, this appeal is filed by the two convicts. 6 5. Before further discussion, we think it just and proper to mention the ante mortem injuries recorded by P.W.7-Dr. Vimal Kumar on 09.03.1995 at the time of post mortem examination on the dead body of Pratap Singh. The same are being reproduced from Autopsy Report (Ext.A-3) as under:- (i) Stitched wound 6 cm. long present on right side back, 13 cm. above and behind right ear. On opening the stitches, the wound margins found to be sharp and wound is bone deep and 1 cm. wide. (ii) Defused contused swelling 6 cm. x 7 cm. on the left side head, just above the left ear. Bleeding from left ear present. On internal examination of the dead body, the Medical Officer opined fractures on the scalp. He opined, in the Autopsy Report, that deceased had died of Coma, as a result of ante mortem injuries. 6. The above quoted ante mortem injuries correspond with the injuries found by P.W.8-Dr. Pramod Kumar Mishra on 08.03.1995 at the time of admitting injured-Pratap Singh in the Hospital. The corresponding injuries, mentioned in the Medical Report (Ext.A-4), prepared by Dr. Pramod Kumar Mishra (P.W.8) are being reproduced below:- (i) Incised wound over near top of head. 6 x 1 cm., margins sharp, bleeding present. Depth not probed. Swelling present around the wound about 8 x 6 cm. area. (ii) Bleeding from (fresh blood) left ear present. Site could not be found out. General condition NS, P.R.86 per minute, BP 130/70, CNS, patient is drowsy. In the opinion of the Medical Officer-Dr. Pramod Kumar Mishra (P.W.8), duration of the injuries was fresh and injury no.1 was found caused by sharp edged object. The statements of the two Medical Officers, namely, P.W.7-Dr. Vimal Kumar and P.W.8-Dr. Pramod Kumar Mishra, read with the Autopsy Report (Ext.A-3) and corresponding Medical Injury Report (Ext.A-4) establishes on record that Pratap Singh died a homicidal death on 09.03.1995, after receiving the injuries on 08.03.1995. Now, we have to examine whether the accused/ appellants Gurbachan Singh and Harjeet Singh, with common intention, committed culpable homicide amounting to murder for which they were convicted by the trial court. We have to further examine whether the two accused/appellants, with common intention, voluntarily caused hurt to P.W.2- Rajendar Singh and P.W.3-Prakash Kaur for which also they were found guilty by the trial court. Before coming to the oral testimony of the injured eye witnesses, we think it just and proper to mention the injuries found by P.W.8- Dr. Pramod Kumar Mishra on the person of P.W.2-Rajendar Singh and P.W.3-Prakash Kaur. The Medical Injury report relating to Rajendar Singh (P.W.2) is Ext.A-6, on record. P.W.8-Dr. Pramod Kumar Mishra had recorded following two injuries on the person of Rajendar Singh on 08.03.1995 at 10:00 p.m., mentioned in Ext.A-6:- (i) Traumatic swelling 8 x 6 cm. over left elbow joint, on medial side, with inability to move joint (probably fractured). Contusion of 1 cm. x 1 cm. area over swelling present. Advised X- Ray left elbow-AP and Lateral view. (ii) Traumatic swelling below left shoulder joint (just below) in an area of 10 x 4 cm., tenderness present. Advised X-Ray left upper arm AP and Lateral view. Duration of the injuries were found by the aforesaid Medical Officer as fresh, which appears to have caused by blunt object. As far as injuries on the person of Prakash Kaur (P.W.3) is concerned, in the Medical Report (Ext.A-5) only this much is mentioned by P.W.8-Dr. Pramod Kumar Mishra that she complaints of pain in her back, chest, abdomen and both thighs, but no visible mark of injuries were seen. In his cross-examination, Dr. Pramod Kumar Mishra (P.W.8) has stated that injuries of Prakash Kaur were superficial in nature. Now, we come to the ocular testimony of the eye witnesses relating to the incident in question. 7. P.W.2-Rajendar Singh (minor son of the deceased), aged 16 years, who is an eye witness, has stated that on 08.03.1995 at about 6:30 p.m., he alongwith his mother Prakash Kaur (P.W.3) were 9 cutting grass over the mound of a field, and his father Pratap Singh was returning to his home from the sugarcane field. According to this witness, as soon as Pratap Singh reached near the culvert, accused/ appellant Gurbachan Singh armed with sword and Harjeet Singh armed with LATHI came out from their wheat field and started hurling abuses at his father (Pratap Singh), who asked them to desist, on which Gurbachan Singh assaulted on the head of Pratap Singh with a sword. The witness further states that when he and his mother Prakash Kaur came to save Pratap Singh, the accused/appellant Harjeet Singh assaulted them with LATHI. This witness has further stated that after the incident, Pratap Singh was taken, in a Tractor Trolley, for medical treatment, but he succumbed to the injuries in the next morning. The witness has further stated that there was a dispute between Pratap Singh with Gurbachan Singh over a pathway, due to which the incident had occurred. In the cross-examination, he admits that said dispute relating to pathway was already settled in a Panchayat. The witness further states that Investigating Officer interrogated him on 09.03.1995. He has further stated that only one blow was given on the head of his father. P.W.2-Rajendar Singh has further stated that his elder brother (Pargat Singh) had gone, on that day, to attend some marriage from where he was called and thereafter, in the Tractor Trolley, the injured were taken to Hospital. The witness admitted that on way to Hospital, Police Station was situated. 8. P.W.1-Pargat Singh-informant (elder son of the deceased) has corroborated the fact that on the day of incident i.e. 08.03.1995, he had gone to attend the marriage in village Khamour. He has further stated that when he came to know of the incident, he rushed to the village, took the injured to Hospital, and lodged First Information Report (Ext.A-1) at the Police Station, after getting the same scribed through one Kulvindar Singh. In the cross-examination, this witness has admitted that he did not see the incident. He has further admitted that P.W.6-Harnek Singh also belongs to village Jamour, where he had gone to attend the marriage. In the cross-examination he has admitted that the dispute relating to pathway between his father, and accused Gurbachan Singh had already been settled in Panchayat. 9. P.W.3-Prakash Kaur, is widow of the deceased, who is also an eye witness. She has narrated the entire prosecution story, as narrated by her son P.W.2- Rajendar Singh (injured). She has also been subjected to lengthy cross-examination, but nothing has come out in her evidence, which creates doubt in her testimony. The statement of the two eye witnesses, namely, P.W.2-Rajendar Singh and P.W.3-Prakash Kaur, further gets corroboration from the statement of P.W.6-Harnek Singh, who is son-in-law of the deceased. 10. Learned counsel for the appellants argued that presence of Harnek Sigh, who is resident of village 11 Jamour, on the place of incident, is highly doubtful. We have carefully gone through the statement of this witness (P.W.6-Harnek Singh). He has stated that on the day of incident, he had gone to village Chandeli (where the incident took place), just to see whether his relatives had gone to attend the marriage in Jamour or not, and he further told that he intended to take them, if they had not gone to attend the marriage. He has further disclosed that distance between Jamour and Chandeli, is 4-5 Kms. He has further told that the marriage was to be solemnized of daughter of his uncle (MAUSA) Harjendar Singh @ Jogindar Singh. Though, this witness has explained his presence at the place of incident, but assuming for a moment, he was not there, presence of P.W.2-Rajendar Singh (injured) and P.W.3-Prakash Kaur, at the place of incident, is natural and cannot be doubted. The testimony of the two eye witnesses is trustworthy and does not create any reasonable doubt in the prosecution story. 11. On behalf of the appellants, it is further argued that assuming for a moment that what the eye witnesses have stated, is taken to be true, it is not a case of culpable homicide amounting to murder. We have considered the submission of the learned counsel for the appellants. It is true that the First Information Report was lodged against the two accused/appellants on 08.03.1995 relating to offences punishable under Section 324, 504 and 506 I.P.C. It is also evident from the record that after death of Pratap Singh, next morning, the case was converted relating to offence punishable under Section 304 I.P.C. Not only this, after completion of investigation, P.W.10-Sub Inspector Mohd. Iqbal submitted charge sheet against the two accused Gurbachan Singh and Harjeet Singh for their trial in respect of offence punishable under Section 304 I.P.C. Though, the trial court is not bound by the conclusion made by the Investigating Officer, but the single blow, with a deadly weapon (sword), on the person of Pratap Singh after heated exchange of words makes us believe, in the above circumstances of the case that it is a case of culpable homicide not amounting to murder punishable under Section 304 I.P.C. In our opinion, the trial court has erred in law in holding the two accused/appellants guilty of charge of offence punishable under Section 302 read with Section 34 I.P.C. They should have been convicted under Section 304 read with Section 34 I.P.C., for causing death of Pratap Singh. 12. Lastly, it is submitted by Shri J.S. Virk, learned counsel for the appellants that even otherwise for the act, if any, of Gurbachan Singh, co-accused Harjeet Singh cannot be convicted and he cannot be held responsible for the death of Pratap Singh. However, on close scrutiny of the evidence on record, we do not find force in this argument. It has come on record, as already discussed by us, that Harjeet Singh also participated in the incident and gave blows with LATHI on the person of Pratap Singh and also on the person of Rajendar Singh, as such, he is responsible for the offences under Section 302 I.P.C. read with Section 34 I.P.C. As far as, the offence under Section 323 read with Section 34 I.P.C. is concerned, in view of the injuries suffered by Rajendar Singh (P.W.2), which were caused by accused Harjeet Singh both the accused Gurbachan Singh and Harjeet Singh are liable to be punished under Section 323 read with Section 34 I.P.C. 13. It is also pointed out that though both the accused are charged in respect of offences punishable under Section 302 and under Section 323 I.P.C., and there is no mention of Section 34 I.P.C. in the charge. However, we do not find that said irregularity has misled the accused or they were prejudiced. In view of Section 464 of Cr.P.C., no finding of sentence or order, by a Court of competent jurisdiction, can be deemed to be invalid merely on the ground that there was error or omission or irregularity in the charge, unless in the opinion of the Court of appeal, a failure of justice had occasioned thereby. 14. For the reasons, as discussed above, this appeal deserves to be partly allowed. Conviction and sentence recorded by the trial court, against the two-accused/ appellants Gurbachan Singh and Harjeet Singh under Section 302/34 I.P.C. is set-aside. Instead, each one of them is convicted under Section 304 read with Section 34 I.P.C. For the reasons discussed above, in the facts and circumstances of the case, we find that sentencing each one of them to rigorous imprisonment for a period of seven years would meet the ends of justice and we 14 sentence them accordingly. We uphold their conviction and sentence recorded by the trial court under Section 323/34 I.P.C. The two accused/appellants are on bail. Their bail is cancelled. The lower court record be sent back to make the two appellants to serve out the sentence, as modified by this Court. (V.K. Bist, J.) (Prafulla C. Pant, J.) 09.05.2011 Arpan