IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.1383 OF 2001 (OLD NO.567 OF 1998) 1. Gajey Singh S/o Gabbar Singh 2. Satish S/o Gajey Singh 3. Sanjay S/o Ram Das 4. Vijay S/o Jai Singh All r/o Mohalla Devsuman Nagar, P.S. Cantt, District Dehradun ……… Appellants Versus State of Uttarakhand .……… Respondent Dated: August 30, 2010 Mr. K.S. Verma, learned counsel for the appellants Mr. T.C. Agarwal, learned Addl. GA for the State HON. DHARAM VEER, J. This appeal, preferred by the appellants 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 19.3.1998 passed by Second Additional Sessions Judge, Dehradun in Sessions Trial No.36 of 1996, State v. Gajey Singh and others, whereby the learned Second Additional Sessions Judge convicted the appellants-accused Gajey Singh, Satish, Sanjay and Vijay under Section 307 read with Section 34 of The Indian Penal Code, 1860 (hereinafter to be referred as the IPC) and sentenced each of them to undergo rigorous imprisonment for a period of ten years with a fine of Rs.1,000/- each. In default of payment of fine, one year’s R.I. was further awarded to each of the appellant. 2 2. Heard learned counsel for the parties and perused the entire material on record. 3. In brief, the prosecution case is that on 5.10.1995 PW2 Shyam Singh lodged a report at Police Chowki Bindal, Dehradun stating therein that on 4.10.1995 his brother Ranveer Singh along with his friend Sanjay were coming to his house. At about 10 PM, appellants-accused Satish, Vijay Singh, Gajey Singh and Sanjay met his brother near Akashdeep Temple and caused injuries to him by knife. Appellant- accused Gajey Singh threatened him for life and thereafter caused injury to him by scissor. On the alarm of Sanjay, one Rajesh, who was on motorcycle stopped there whereupon the appellants-accused fled away from the place of occurrence. It is further stated that his brother Ranveer has received a number of injuries and he was drenched with blood. He was sent to the hospital by Rajesh’s motorcycle. This information was given to him by Sanjay. With the same averments, the present FIR was lodged by PW2 Shyam Singh, i.e. Ext.Ka-1. On the basis of this FIR, chik FIR of the case was prepared by Head Mohirror Jagdish Singh, i.e. Ext.Ka-8. Necessary entries were also made in the G.D., carbon copy of which is Ext.Ka-9.The investigation of this case was entrusted to PW7 S.I. Jagat Singh. Injured Ranveer Singh was medically examined on 4.10.1995 at 11:15 PM by PW9 Dr. Rakesh Chandra, who after the medical examination, prepared the injury report, i.e. Ext.Ka-11. During the course of investigation, the I.O. took into possession bloodstained clothes of injured Ranveer Singh and a Fard thereof was prepared, i.e. Ext.Ka-2, inspected the 3 place of incident and prepared the site-plan, i.e. Ext.Ka-6, recorded the statement of witnesses and on completion of investigation, he filed the charge sheet against the appellants-accused, i.e. Ext.Ka-7. 4. After receiving the charge sheet, learned Additional Chief Judicial Magistrate III, Dehradun committed the case to the court of Sessions on 14.2.1996, after giving necessary copies to the appellants-accused as provided u/s 207 Cr.P.C. It appears from record that the case was transferred to II Addl. Sessions Judge for hearing and disposal as per law. 5. On 14.5.1996, learned II Addl. Sessions Judge, Dehradun framed the charge of offence punishable under Section 307 r/w 34 of IPC against the appellants-accused. The charge was read over and explained to each of the appellant-accused, who pleaded not guilty and claimed to be tried. 6. In order to prove its case, the prosecution has examined PW1 Ranveer Singh, injured witness, PW2 Shyam Singh, complainant of the case, PW3 Sanjay, eyewitness, PW4 Dr. B.C. Ramola, PW5 Rajesh, eyewitness, PW6 Dr. G.P. Painuli, PW7 Jagat Singh, Investigating Officer of the case, PW8 H.C. Jagdish Singh, who prepared the Chik FIR and made entry in the G.D. and PW9 Dr. Rakesh Chandra, who medically examined the injured Ranveer Singh. 7. Thereafter the statements of the appellants- accused were recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to each of them in question form, who denied the allegations made 4 against them. However, they have not produced any oral or documentary evidence in defence. 8. After appreciating the entire evidence on record and hearing learned counsel for the parties, learned Second Additional Sessions Judge, Dehradun vide his judgment and order dated 19.3.1998 convicted and sentenced the appellants-accused as mentioned above. Against the said judgment and order, the appellants-accused have preferred the present appeal. 9. Before any further discussion, it would be pertinent to mention the medical report of injured Ranveer Singh, which is reproduced as under:- i) I.W. 1.5 cm x 0.5 cm left side at front of chest 2.5 cm from left nipple at 2’o Clock position, depth at wound unknown. ii) I.W. 1cm x 1 cm left side at abdomen 17 cm from umbilicus at 3’ o clock position. iii) I.W. 1 cm x .25 cm left side of abdomen back side 7 cm away from injury no.2. iv) I.W. 2 cm x .5 cm right side forehead 1.5 cm above right eye brow. v) I.W. 2 cm x .25 cm middle of forehead 4 cm above root at nose. vi) I.W. 2 cm x 0.5 cm scalp deep, right side of head 0.6 cm above from right ear. vii) I.W. 4.5 cm x .25 cm scalp deep right side head 9 cm from right ear. viii) I.W. 5.5 cm x .5 cm scalp deep right side of head 12 cm from right ear. ix) I.W. 3.5 cm x 0.5 cm scalp deep over right head 10.5 cm above from right ear. 5 x) I.W. 2.5 cm x 0.5 cm scalp deep over middle of head 14 cm above from right ear. xi) I.W. 2.5 cm x 0.5 cm scalp deep over right side of head 10 cm above right ear. Opinion:- Injury no.1 kept under observation, caused by sharp object duration fresh, bleeding present advised X-ray, Chest PA view. Rest of the injury simple, caused by sharp object duration fresh and bleeding present from all injury advised admission. 10. To prove the above report, the prosecution has examined PW9 Dr. Rakesh Chandra and PW6 Dr. G.P. Painuli. 11. PW9 Dr. Rakesh Chandra, Medical Officer, has stated that on 4.10.1995 he was on emergency duty. On that day at 11:15 PM, he medically examined the injured Ranveer Singh and prepared his injury report Ext.Ka-11. He further stated that injury no.1 was kept under observation and all the injuries were fresh and were possibly caused by sharp weapon. He had advised x-ray of chest. He further stated that except injury no.1, all other injuries were simple in nature. In his cross-examination, he stated that there is accident injury register, private medico legal register and police medico legal register in the hospital. Injury of those patients who directly come in the hospital are recorded in accident register. In police medico legal register, entry of those cases are maintained which are referred by police. In private medico legal register, entries regarding private patients are maintained. He further stated that it is difficult to state whether these injuries were caused by scissor or by sharp object. 6 12. PW6 Dr. G.P. Painuli was posted as Surgeon in Doon Hospital on the date of incident. He has proved the bed head ticket Ext.Ka-4 and report Ext.Ka-5. 13. In order to prove its case further, the prosecution has examined PW1 Ranveer Singh, who has stated that the said incident was taken place on 4.10.1995 at about 10 PM. On that day, he along with Sanjay was coming from Devsuman Nagar. On the way, appellants-accused Gajey Singh, Satish, Sanjay and Vijay met, who stopped him. Appellant-accused Gajey Singh threatened him for life. Gajey Singh was armed with scissor, Satish was armed with khukhri, Sanjay was armed with knife and Vijay was armed with iron rod. On the instigation of Gajey Singh, Sanjay, Vijay and Satish caught hold of him and Gajey Singh attacked on his chest with scissor which hit on his left side. Other accused also beaten him. Due to the injuries, he fell down. Meanwhile, one Rajesh came there on motorcycle whereupon the appellants-accused fled from there. He further stated that he received injuries on his head, foot, chest and thigh. Rajesh took him to the hospital on his motorcyle and his friend Sanjay informed about the said incident at his house. Appellants were identified by him in the light of street light. In his cross-examination, he stated that he had not disclosed the fact of street light to the I.O. and the first time he is deposing about the same. 14. PW2 Shyam Singh is the complainant of the case. He has reiterated the version of the FIR. 7 15. PW3 Sanjay is eyewitness of the case. He has corroborated the statement of PW1 Ranveer Singh. 16. PW4 Dr. B.C. Ramola, Radiologist has stated that the x-ray of the injured was conducted under his supervision. He has proved the x-ray reports Ext.Ka-2 and Ka-3. In cross-examination, he stated that from the X-ray reports of the injured, it is not clear whether the injury was caused by knife or scissor. 17. PW5 Rajesh has stated that the injured Ranveer Singh was got admitted in the hospital by him. He further stated that when he reached at the place of occurrence he did not see any accused while beating or running. 18. PW7 Jagat Singh is the Investigating Officer of the case. During the course of investigation, he recorded the statement of witnesses, took into his possession clothes of injured and prepared the Fard Ext.Ka-2, inspected the place of occurrence and prepared the site-plan Ext.Ka-6 and on completion of investigation, he filed the charge sheet Ext.Ka-7 against the appellants-accused. 19. PW8 Head Constable Jagdish Singh has proved the Chik FIR Ext.Ka-8 and the entries made by him in the G.D. Ext.Ka-9. He has also proved the G.D. Ext.Ka-10. 20. Thereafter the statements of the appellants- accused were recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to each of them in question form, who denied the allegations made 8 against them. In defence, Anil Bhatt was examined as DW1 who has stated nothing about the said incident, which may be helpful to the accused persons. 21. Sri K.S. Verma, learned counsel for the appellants argued that the prosecution has not proved the case against the appellants-accused Gajey Singh and Vijay beyond reasonable doubt. I find force in the argument put forth by learned counsel for the appellants, due to following reasons:- a) That PW1 Ranveer Singh as well as PW3 Sanjay both have stated that the appellant Gajey Singh was armed with scissor and by that he caused injury to Ranveer Singh on his chest. Injury no.1 i.e. one incised wound was found on the chest of injured Ranveer which cannot be caused by scissor but can be caused by sharp edged object. There is a specific case of the prosecution that appellant Gaje Singh caused injuries by scissor on the chest of Ranveer Singh. With regard to that injury Dr. Rakesh Chandra has stated that he could not state whether that injury was caused by scissor or by sharp object. Similarly, PW4 Dr. B.C. Ramola has stated that from the x-ray report it does not reveals whether that injury was caused by knife or scissor. Thus, the oral evidence does not get corroboration from the medical evidence that the appellant Gaje Singh caused injury to Ranveer by scissor on his chest and, therefore, the presence of appellant Gaje Singh at the place of occurrence as well as his involvement in the said crime is doubtful. 9 b) Further, as per the statement of Ranveer and Sanjay, Vijay was armed with iron rod and with that he caused injury to Ranveer Singh but no such injury, which was caused by iron rod, was found on the person of injured Ranveer Singh. Thus, the presence of appellant Vijay at the place of occurrence as well as his involvement in the said crime is doubtful. 22. In view of the aforesaid discussion, the prosecution has been failed to prove the case beyond reasonable doubt against the appellants-accused Gajey Singh and Vijay under Section 307 r/w 34 of IPC. They are liable to be acquitted by giving benefit of doubt. 23. Learned counsel for the appellants further argued that on the basis of the evidence discussed above offence punishable u/s 307 r/w 34 IPC is not made out and at the most offence punishable under Section 324 of IPC is made out against the appellants Satish and Sanjay. I find force in the argument of learned counsel for the appellants for the reason that in the evidence of the witnesses, they have not stated that the accused/appellants have caused injuries to them with intention or knowledge to kill them, and under such circumstances that, if the injured would die by these injuries then the accused/appellants would be guilty of murder. Further, except injury no.1, all other injuries i.e. injury nos.2 to 11 were found simple in nature and were not dangerous to life and even injury no.1 was not caused to injured by appellants-accused Satish and Sanjay. Thus, I am of the view that the offence punishable under Section 324 of IPC is made out against the appellants-accused 10 Satish and Sanjay instead of Section 307 r/w 34 of IPC. 24. Learned counsel for the appellants further submitted that the appellants Sanjay and Satish are the only earning members in their family. Further, they are facing the present case from last more than 15 years and except this, they have not committed any other crime. It is further submitted that the appellants have passed more than four months in jail in connection with the said crime and, therefore, it is prayed that the appellants-accused may be sentenced to the period already undergone by them. 25. After considering all the facts and circumstances of the case and hearing learned counsel for the parties, it would be in the interest of justice to sentence the appellants Sanjay and Satish to the period already undergone by them. 26. Accordingly, the appeal is partly allowed. The judgment and order dated 19.3.1998 passed by Second Additional Sessions Judge, Dehradun in Sessions Trial No.36 of 1996, State v. Gajey Singh and others, is hereby set aside. Conviction and sentence of the appellants Gajey Singh and Vijay is also set aside. They are on bail. They need not surrender unless required in any other case. 27. So far as appellants Satish and Sanjay are concerned, their conviction and sentence u/s 307 r/w 34 IPC is also set aside. Instead they are convicted u/s 324 of IPC and are sentenced to the period already undergone by them. 11 28. A copy of this judgment along with the record shall be sent back to the trial court concerned for compliance forthwith. (Dharam Veer, J.) 30.8.2010 RG