Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No.433 of 2001 (Old No. 2956 of 1998) Date of Decision: 21.05.2010 Raju and others Versus ……Appellants State of U.P. (Now Uttarakhand) .…Respondent Sri S.P.S. Panwar, Senior Advocate assisted by Sri H.C. Pathak, learned counsel for the appellant No.1. Sri Vivek Shukla, learned counsel for the appellant Nos. 2 & 3. Mr. Nandan Arya, learned A.G.A. for the State/respondent. Hon’ble Nirmal Yadav, J. Accused appellants stood trial for the offences punishable under section 376/511 of the Indian Penal Code,1860 (for short I.P.C.) and under section 307 read with section 34 of the I.P.C. The trial court however acquitted all the three accused for the offence under section 376 read with section 511 I.P.C. and convicted all the three accused under section 307 read with section 34 IPC and sentenced them to undergo ten years rigorous imprisonment and a fine of Rs. 5000/- each. In default of payment of fine, they have been ordered to further undergo six months of rigorous imprisonment. The facts in brief are that on 17.05.1993 at about 08.00 p.m. Ruby (PW-2) daughter of complainant Surendra Kumar Tyagi @ Bhagatji (PW1) was returning home from the 2 cattle shed (Gher) after giving the food, on the way accused Raju alongwith Dinesh and Pankaj started following her and when she reached in front of the gher of Om Prakash near Arya Samaj Mandir, all the three accused caught hold of her and started pushing her towards Arya Samaj Mandir. When she raised an alarm, Om Prakash and Daya Ram (PW-3) were attracted towards the alarm. They came and saw in the torch light that Dinesh and Pankaj were catching hold the hands of Ruby (PW-2) while accused Raju was pushing her. On seeing both of them, accused Raju caused one knife injury in the abdomen of Ruby. On receiving injury, Ruby fell down and accused ran away from there. Meanwhile, many persons of the village also reached there. Since condition of Ruby was serious, she was removed to hospital at Roorkee. Father of Ruby, Surendra Kumar Tyagi (PW-1) remained busy in her treatment. However, on 18.05.1993 he got an application (Ex.Ka-1) scribed from one S.K. Sharma and submitted the same before S.H.O., Bhagwanur. On the basis of said application, Chick F.I.R. (Ex.Ka-6) was recorded by CIC Dharampal Singh on 18.05.1993 at 06.10 p.m. The G.D. (Ex.Ka-7) in this regard was also recorded. Investigation was handed over to S.I. Ram Veer Singh (PW-7). He went at the spot alongwith complainant and after inspection, prepared the site plan (Ex.Ka-8). He also recorded the statement of witnesses namely Om Prakash and Daya Ram (PW-3). Thereafter he went to Roorkee in Nayyar Nursing Home and recorded the statement of injured Ruby (PW2). On 18.05.1993 he took into possession the clothes of Ruby (PW- 2) vide memo (Ex.Ka-4). Thereafter he arrested all the accused. During the course of interrogation, a knife (Ex-1) was got recovered by accused Raju. 3 On completion of investigation, challan was presented and the accused appellants were charge sheeted under section 376/511 IPC and under section 307 IPC read with 34 IPC to which they pleaded not guilty and claimed trial. The prosecution in order to prove its case, produced as many as seven witnesses. Complainant (PW1) Surendra Kumar Tyagi (PW-1)is the father of victim Ruby, Ruby (PW-2) is the victim herself and Daya Ram (PW-3) is the eye witness of the occurrence, Dr. Ajay Kumar (PW-4) medico-legally examined the victim on 17.05.1993 at 09.25 p.m. and proved medico-legally report (Ex-Ka-8) and X-ray report (Ex-Ka-9). On examination, Doctor found the following injuries :- i. Incised wound 2 x 0.5 cm., on the left side of the abdomen at 180 degree from umbilicus and was at 3.00 O’ clock position, depth was not probed so as internal organs were not damaged. He also conducted X-ray but no gas underneath the dome of diaphragm was found meaning thereby that no internal organ was cut. In Virendra Kumar’s (PW5) presence, clothes of the injured were taken into possession vide memo (Ex-Ka-4). In Dr. J.P. Nayyar’s (PW-6) Nursing Home injured was admitted in the night of 17.05.1993. He operated her on 18.05.1993. On operation, he found that incised wound was in the abdomen, injury was 3 inch deep, the wall of abdomen was cut. A small branch of mesenteric artery was also cut. S.I. Ram Veer Singh (PW-7) investigated the case. 4 The accused appellants when examined under section 313 Cr.P.C. denied all the incriminating evidence put to them by prosecution. According to accused Raju, the alleged place of occurrence located in the residential area and the house of Daya Ram (PW-3) is at a distance of 250 yards from the place of occurrence. He is living in the neighbourhood of complainant Surendra Singh Tyagi (PW-1) and is having close association with him. Accused Dinesh stated that his father Ishwar Singh was a witness in a case against Sushil S/0 Dayaram under section 307 I.P.C., therefore, Dayaram (PW-3) was inimically disposed towards him, therefore, he has been falsely implicated. Accused Pankaj stated that the fields of his father and uncle were adjacent to the field of Surendra Kumar Tyagi (PW-1) who had been threatening his father and uncle on several occasions prior to the incident. He also stated that he has also been falsely implicated on account of enmity. I have heard Sri S.P.S. Panwar, Senior Advocate assisted by Sri H.C. Pathak, learned counsel for the appellant No.1, Sri Vivek Shukla, leaned counsel for the appellant no.2 & 3 , Sri Nandan Arya, learned A.G.A. for the State and gone through the material available on record. Learned counsel for appellant argued that the prosecution has miserably failed to prove its case beyond reasonable doubt. It is argued that occurrence is alleged to have been witnessed by Om Prakash and Daya Ram (PW3) but Om Prakash has not been produced in the witness box and Daya Ram (PW-3) is not an independent witness. He has falsely implicated the accused on account of enmity. Learned counsel for the appellants pointed out that father of accused Dinesh was a witness in a case pending against son of 5 Dayaram under section 307 IPC. Even otherwise he is a neighbourer and close associate of PW1 Surendra Kumar Tyagi (PW-1). Learned counsel for the appellants further argued that Ruby (PW-2) deposed before the court under the influence of her father. Learned counsel for the appellant argued that FIR was lodged after a considerable delay. The alleged occurrence took place in the evening of 17.05.1993 and FIR was lodged on the next day in the evening. Complainant has utilized this delay for consultation and deliberation to falsely implicate the accused persons. He also argued that Dr. J.P. Nayyar (PW-6) was not cited as witness nor he was examined by Investigating Officer under section 161 Cr.P.C. during the investigation. He has been introduced later on in order to make out the false case under section 307 I.P.C. Learned counsel for the appellants pointed out that in the FIR (Ex.Ka-1) complainant did not mention that injured Ruby (PW-2) was admitted in Nayyar Nursing Home through she is alleged to have been operated in said Nursing home much prior to the lodging of FIR. Learned counsel for the appellants further argued that there was no source of light at the place of occurrence. Dayaram (PW-3) had seen the alleged occurrence in the torchlight. It is argued that as per Dayaram (PW-3), he had gone to his field at 12.00 noon during the day, therefore, it appears to be highly improbable that he would carry the torch with him during the daytime. Lastly, learned counsel for the appellants argued that no case under section 307 is made out. None of the 6 doctor stated that injury was dangerous to life and nor vital organ of the injured was damaged. On the other hand, learned A.G.A. argued that prosecution case is fully supported by the statements of injured Ruby (PW-2) and Dayaram (PW-3) who were eye witness of the occurrence. He also pointed out that ‘gher’ of the witness Dayaram (PW-3) is located very close to the place of occurrence and his presence was natural. Learned A.G.A. further argued that medico-legal report fully supports the testimony of the eye witnesses. He referred to the statement of Dr. Nayyar (PW-6) that injury could be dangerous to life if medical aid could not have been given in time. On careful consideration of rival submissions made by learned counsel for the parties and the material facts available on record, this Court is of the view that prosecution has been able to prove it case that Ruby (PW-2) received injury on 17.05.1993 at about 08.00 p.m. by sharp edged weapon. Dr. Ajay Kumar (PW-4) has categorically stated that injury on the person of Ruby (PW-2) could be caused on 17.05.1993 at about 08.00 p.m. and the injury was caused by some sharp edged weapon. Ruby (PW-2) categorically stated that when she was returning from the gher on 17.05.1993, she was given a knife injury by accused Raju. Daya Ram (PW-3) whose gher is also very close to the place of occurrence also stated that he had seen the accused giving knife injury to Ruby (PW-2). It does not appear to be unusual that witness was carrying torch at the relevant time. Since the witness had gone to his field during the day and it is common knowledge that when people return from their field and jungle, after sunset, they normally carry the torch. Moreover, it is admitted case that the accused persons were known to Ruby 7 (PW-2) and Dayaram (PW-3). They belong to the same village. Therefore, there could not be any question of mistaken identity. The mere facts that Om Prakash has not been produced by the prosecution does not demolish the prosecution case. It is the prerogative of the prosecution to choose the witness to be produced in order to prove its case. It is not quality of the evidence but quantity, which would be material for the court to arrive at just decision of the case. The argument of learned counsel for the appellants that FIR was lodged after a considerable delay does not in any way affect the prosecution case. In fact, complainant Surendra Kumar Tyagi (PW-1) has satisfactorily explained the delay. According to him, he immediately removed his daughter to the government hospital where she was examined by Dr. Ajay Kumar (PW-4) and thereafter he admitted her in Nayyar Nursing home during the night of 17.05.1993. She was operated by Dr. J.P. Nayyar on 18.05.1993 and only after the operation, the complainant went to the police station and reported the matter since he was more concerned about the treatment of his daughter. The learned counsel for the appellants argued that no offence under section 307 IPC is made out which is apparent from the nature of injuries. None of the doctor has stated that any vital organ of injured Ruby (PW-2), was damaged nor any injury on her person was declared to be grievous in nature. In cross examination, Dr. Ajay Kumar (PW-4) has categorically stated that he has not mentioned in his report that nature of injuries could be serious or were dangerous to life as no vital organ was damaged. Only a small branch of artery was cut which was bleeding but no other internal organ was cut. 8 In these circumstances, the case under section 307 IPC is not at all made out. Since the injury has been caused by sharp edged weapon, as such only an offence under section 324 IPC would be made out against the accused Raju. He had caused injury upon the injured by means of sharp edged weapon i.e. knife. As regards accused Dinesh and Pankaj, the only role attributed to them is that they were dragging Ruby (PW-2) by catching hold of her hands while Raju was pushing from behind. They did not share common intention to cause knife injury to the victim. However, when accused saw that witnesses are approaching accused Raju suddenly took out the knife and caused injury in the abdomen of Ruby (PW-2). There does not appear to be meeting of mind between accused Raju and Dinesh or Pankaj for causing knife injury to victim. Accordingly, both accused Dinesh and Pankaj can not be held guilty for committing the offence in furtherance of their common intention. Thus, they can not be held guilty of the offence under section 307 IPC read with section 34 IPC. Accordingly, they are acquitted of the charges framed against them. As discussed above, no offence under section 307 IPC is made out against accused Raju. However, he is convicted under section 324 IPC for voluntarily causing heart to Ruby (PW-2) by means of sharp edged weapon i.e. knife. He is thus sentenced to undergo one year imprisonment and a fine of Rs. 10,000/-. On realization of fine of Rs.10,000/-, a sum of Rs. 7500/- shall be paid to injured Ruby (PW-2). In default of payment of fine, he is ordered to further undergo six months simple imprisonment. 9 In view of the above discussion, the appeal on behalf of appellants Dinesh and Pankaj is allowed and appeal on behalf of Raju is modified to the extent referred above. Both accused appellants Dinesh and Pankaj were on bail, their bail bonds are cancelled and their sureties are discharged. The accused appellant Raju is on bail, his bail bonds are cancelled and sureties discharged. He shall be taken into custody forthwith to serve out the sentence awarded by this Court. Registry is directed to send back the lower court record for compliance of the order. (Nirmal Yadav, J.) JKJ 21.05.2010