RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No.1234 of 2001 (Old No.1054 of 1990) Saeed S/o Bundu R/o Village Ekkar Khurd, P.S. Patti, Distt. Hardwar …….….…. Appellant Versus The State …………… Respondent Dated: July 18, 2008 Sri Narendra Bali, learned counsel for the appellant Sri M.A. Khan, learned brief holder for the State/respondent HON. DHARAM VEER, J. This appeal, preferred by the appellant u/s 374(2) of Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 14.05.1990 passed by Sessions Judge, Hardwar in S.T. No.27 of 1990, State Vs. Saeed, whereby the learned Sessions Judge has convicted the appellant-Saeed under Section 304 (Part-II) of Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced him to five years’ rigorous imprisonment. 2. I have heard Sri Narendra Bali, learned counsel for the appellant and Sri M.A. Khan, learned brief holder for the State and perused the entire material available on record. 3. In brief, the prosecution case is that complainant Ashraf lodged a FIR in P.S. Pathri on 4.9.1988 with the averments that three days before the incident, millet (JWAR) was cut down from the field of complainant. For that reason, Smt. Khatoon (deceased) enquired about the cutting of millet from the appellant/accused Saeed due to which some altercation took place. Then, the appellant/ accused Saeed has caused injury on the head of Smt. Khatoon with a brick as a result of which blood started oozing out. This incident was said to be taken place on 4.9.1988 at about 4:00 P.M. which was witnessed by Liyakat, Ibrahim and Hanif. It was also averted that soon after receiving the injury, Smt. Khatoon screamed and after hearing the screaming, complainant Ashraf along with his younger brother Nasim came on the spot. On seeing them, appellant/accused Saeed ran away from the place of occurrence. Thereafter, the complainant Ashraf took his mother in a bullock cart for hospital. Then on the way at about 6:00 P.M. near Kankhal crossroad (CHAURAHA), his mother Smt. Khatoon had died. After that he came back to his village, left the dead body of his mother at his house and came to lodge the report, i.e. Ex.Ka-1. On the basis of this report, a Chik FIR was prepared by Head Constable Sultan Singh, i.e. Ex.Ka-3. This Chik FIR was lodged in P.S. Pathri on 4.9.1988 at 8:20 P.M. and the distance of the police station from the place of occurrence is 6½ kilometers. The entry was also made in the G.D., the carbon copy of G.D. is Ex.Ka-4. The investigation of the case was entrusted to P.W.6 S.O. Babu Ram Sagar. The inquest report on the body of Smt. Khatoon (deceased) was prepared by the I.O. on 4.9.1988, i.e. Ex.Ka-5. The application for conducting the post-mortem on the body of deceased Smt. Khatoon was sent by the I.O. to the Medical Officer, In-charge HMG Hospital, Hardwar, that application is Ex.Ka-6. Police Form No.13 is Ex.Ka-7 and Photo Lash is Ex.Ka-8. The post-mortem on the body of deceased Smt. Khatoon was conducted on 5.9.1988 at 2:00 P.M., the post-mortem report is Ex.Ka-2. The I.O. during the course of investigation inspected the place of occurrence and prepared the site plan i.e. Ex.Ka-9. The I.O. also took the plain clay and the blood stained clay from the place of occurrence and prepared a Fard, i.e. Ex.Ka-10. After completing the investigation, the I.O. submitted the charge sheet against the appellant/accused Saeed in the court u/s 302 IPC, i.e. Ex.Ka-11. 4. Learned Munsif Magistrate L.C.C., Hardwar committed the case to the court of Sessions on 14.02.1990 under section 209 Cr.P.C. after complying with the provisions of Section 207 Cr.P.C. 5. On 19.03.1990, learned Sessions Judge, Hardwar framed the charge against the appellant Saeed u/s 302 IPC. The charge was read over and explained to the appellant who pleaded not guilty and claimed to be tried. 6. To prove its case, the prosecution has examined P.W.1 Ashraf, complainant and eyewitness, P.W.2 Ibrahim, eyewitness, P.W.3 Dr. Chandra Prakash, who has conducted autopsy on the dead body of Smt. Khatoon, P.W.4 Nasim, eyewitness, P.W.5 Constable Sheel Chand, who took the dead body for conducting the post-mortem and P.W.6 S.O. Babu Ram Sagar, I.O. of the case. 7. Thereafter, the statement of the appellant/ accused Saeed was recorded u/s 313 of Cr.P.C. The oral and documentary evidence was put to him in question form, who denied the allegations made against him. However, in defence, he had not produced any oral or documentary evidence. 8. After appreciating the evidence on record and after hearing learned counsel for the parties, the learned Sessions Judge, Hardwar vide his judgment and order dated 14.05.1990 convicted the appellant/accused Saeed u/s 304 (Part II) of IPC and sentenced him for five years’ rigorous imprisonment. Feeling aggrieved by the aforesaid judgment and order dated 14.05.1990, the appellant/accused Saeed has preferred the present appeal. 9. Before further discussion, it is pertinent to mention the ante-mortem injury found on the person of deceased Smt. Khatoon, which is reproduced as under:- “Lacerated wound 5 cm x 2 cm x bone deep on the left side scalp, 6 cm above left eyebrow.” In the internal examination, the Medical Officer found fracture in the left parietal bone extending to left temporal bone; clotted blood was present over brain; fracture in middle cranial fossa left side was also found; about 300 ml. blood was present in cranial cavity; both the chambers of heart were found empty weighing 200 grams; urinary bladder was found empty and uterus was also found empty. Cause of death was shown due to shock and hemorrhage as a result of ante-mortem injury. 10. To prove its case, the prosecution has examined P.W.1 Ashraf, complainant of the case, who has stated that on the date of incident, his mother Smt. Khatoon had enquired from the appellant/accused Saeed that why he had cut down cattle fodder (CHARI). On this issue, appellant/accused Saeed hit on her head with a brick due to which his mother received injuries. This incident was said to be taken place at about 4:30 P.M. At that time, Liyakat, Ibrahim and Hanif were also present on the place of occurrence. His mother also made a noise and on hearing noise, he along with his younger brother Nasim reached on the spot. After seeing them, appellant/accused Saeed ran away from the place of occurrence. Thereafter, he took his mother for hospital on a bullock cart. On the way at Kankhal crossroad, at about 6:00 P.M., his mother had died. Then, he came back to his village and he dictated the report of this incident to Anees and Anees has written this report on his dictation, that report is Ex.Ka-1. Thereafter, he lodged the report of the incident at police station. Afterwards police had come in his house and inquest report was prepared. He also put his thumb impression on the inquest report. He also stated that the dead body of his mother was sealed on the spot. This witness was cross-examined at length by the defence counsel but nothing has come out in his evidence which may create any doubt in his evidence. The evidence of this witness is reliable and believable. 11. P.W.2 is Ibrahim who has stated that on the date of incident at about 4:00 P.M., he was sitting in the house of Haneef and Liyakat and Hanif were also sitting there. At that time, appellant/accused Saeed had come while abusing. On hearing the noise made by appellant/accused Saeed, he along with his companions came out of the house. Appellant/accused Saeed had gone to the house of Ashraf and they have also gone following him. Mother of Ashraf was standing there. Appellant/accused Saeed caused injury on the head of mother of Ashraf with a brick due to which she screamed. After hearing screaming, Ashraf and Naseem had also come out. Thereafter, appellant/accused Saeed ran away from the place of occurrence after causing injury with a brick to the mother of Ashraf. Thereafter, Ashraf along with one-two villagers took Smt. Khatoon to the hospital, however they came back because the mother of Ashraf had died in the way. This witness was also cross-examined at length by the defence counsel but nothing has come out in his evidence which may create any doubt in his evidence. The evidence of this witness is also reliable and believable. 12. P.W.3 is Dr. Chandra Prakash, Medical Officer, who has stated that on 5.9.1988, he was posted as Medical Officer at Harmilap Hospital, Hardwar. On that day at 2:00 P.M., he conducted the autopsy on the person of Smt. Khatoon, who was aged about 60 years, at Government Harmilap Hospital. The dead body was brought to him in sealed condition by Constable Sheel Chandra & Constable Netrapal. At the time of autopsy, rigor mortis was present in the lower part of Limbs, however rigor mortis was not present on the upper part of the Limbs. The ante-mortem injury and the external injuries were found by him on the person of deceased Smt. Khatoon, which have been recorded in para 9 of this judgment. He also prepared the post-mortem report, i.e. Ex.Ka-2. The clothes of the deceased were also sealed in a bundle and the same was handed over to a Constable. The sealed bundle was opened in the court and Salwar, shirt and one Odhni (shawl) of the deceased (Ex.3 to Ex.5) were also proved by him. He has further stated that Salwar and Payjama is the same thing. 13. P.W.4 is Naseem who has stated that on the date of incident at about 4:00 P.M., he was in his house and his brother Ashraf was also with him. His mother Smt. Khatoon was outside the house. Appellant/accused Saeed had come while abusing and he caused the injury on the head of his mother with a brick. This incident was witnessed by Liyakat, Ibrahim & Hanif and he had also seen the incident. Due to the injury caused by appellant/accused Saeed, blood started oozing out from the head of his mother. This witness was also cross-examined at length by the defence counsel but nothing has come out in his evidence which may create any doubt in his evidence. The evidence of this witness is also reliable and believable. 14. P.W.5 is Constable Sheel Chandra, who has stated that on 4.9.1988, he was posted as Constable in P.S. Pathri. He took the dead body of Smt. Khatoon in sealed condition to Hardwar Hospital for conducting the post-mortem. He had submitted the papers in the hospital which he had taken with him. 15. P.W.6 is S.O. Babu Ram Sagar, I.O. of the case, who has stated that on 4.9.1988, he was posted as S.O. P.S. Pathri. In his presence, the FIR was lodged in the police station. The Chik FIR was prepared by Head Constable Sultan Singh. The entry was also made by the him the G.D. The Chik FIR is Ex.Ka-3 and copy of G.D. is Ex.Ka-4. He also started the investigation of the case on the same day. During the course of investigation, he also prepared the inquest report on the person of deceased Smt. Khatoon, i.e. Ex.Ka-5. He also prepared letter to the Medical Officer for conducting post-mortem (Ex.Ka-6), Chalan Lash (Ex.Ka-7) and Photo Lash (Ex.Ka-8). He also inspected the place of occurrence and prepared the site plan, i.e. Ex.Ka-9. He also took in his possession the plain clay and the blood stained clay from the place of occurrence and prepared a recovery memo, i.e. Ex.Ka-10. After completing the investigation, he submitted the charge sheet, i.e.Ex.Ka-11. 16. Thereafter, the statement of the appellant/ accused Saeed was recorded u/s 313 of Cr.P.C. The oral and documentary evidence was put to him in question form, who denied the allegations made against him. However, in defence, he had not produced any oral or documentary evidence. 17. Sri Narendra Bali, learned counsel for the appellant submitted that as per the evidence discussed above, the case against the appellant is not proved beyond reasonable doubt. The argument advanced by learned counsel for the appellant is not sustainable as P.W.1 Ashraf, who is complainant of the case, has stated in his evidence that on the date of incident, his mother Smt. Khatoon had enquired from the appellant/accused Saeed that why he had cut down cattle fodder (CHARI). On this issue, appellant/accused Saeed hit on her head with a brick due to which his mother received injuries. This incident took place at about 4:30 P.M. and at that time, Liyakat, Ibrahim and Hanif were also present on the place of occurrence. His mother also made a noise and on hearing the noise, he along with his younger brother P.W.4 Nasim reached on the spot. After seeing them, appellant/accused Saeed ran away from the place of occurrence. Thereafter, he took his mother for hospital on a bullock cart. On the way at Kankhal crossroad, at about 6:00 P.M., his mother had died. Then, he came back to his village and he dictated the report of this incident to Anees and Anees has written this report on his dictation, i.e. Ex.Ka-1 and after that he lodged the report of the incident at police station. The evidence of this witness is reliable, believable and natural. His evidence also gets corroborated from the evidence of P.W.2 Ibrahim and P.W.4 Nasim, who are the eyewitnesses of the incident. The evidence of P.W.1 Ashraf is also in corroboration with the medical evidence of P.W.3 Dr. Chandra Prakash and also from the ante-mortem injury and internal injuries which have been recorded in post- mortem report (Ex.Ka-2) as well as from the contents of FIR and other material available on record. As such, the prosecution has been successful in proving its case against the appellant/accused Saeed beyond reasonable doubt u/s 304 (Part II) IPC. 18. Learned counsel for the appellant further submitted that the brick, which was used in commission of crime, was not recovered by the police, which creates a doubt in the prosecution case. This argument advanced by learned counsel for the appellant is not sustainable. The entire prosecution story, only on the sole ground that the brick was not recovered, cannot be discarded and that too when there is direct evidence of three witnesses namely P.W.1 Ashraf, P.W.2 Ibrahim & P.W.4 Nasim, who have proved the case of the prosecution beyond reasonable doubt against the appellant/accused Saeed. As such, this argument advanced by learned counsel for the appellant is not helpful to the appellant. 19. It was further argued by learned counsel for the appellant that in the instant case, P.W.1 Ashraf and P.W.4 Nasim are the real sons of deceased Smt. Khatoon, hence they are interested witnesses and on the basis of their evidence, the appellant cannot be convicted. This argument advanced by learned counsel for the appellant also got no force as the evidence of P.W.1 Ashraf & P.W.4 Nasim cannot be discarded merely on the ground that they are the sons of deceased Khatoon. These two witnesses are the natural and reliable witnesses as on the basis of facts and circumstances of the case, their presence on the place of occurrence is quite natural. Besides this, the evidence of P.W.1 Ashraf & P.W.4 Naseem is also corroborated by the evidence of P.W.2 Ibrahim who is an independent witnesses and he has got no relationship either with the deceased Smt. Khatoon or with P.W.1 Ashraf and P.W.4 Naseem. As such, the entire prosecution story cannot be discarded only on the sole ground that P.W.1 Ashraf and P.W.4 Naseem are the sons of deceased Smt. Khatoon. 20. In view of the above said facts and circumstances of the case, I also concur with the view taken by the learned trial court in convicting the appellant/accused Saeed u/s 304 (Part II) IPC and there is no ground to interfere with the impugned judgment and order dated 14.5.1990 passed by learned Sessions Judge, Hardwar. 21. For the reasons recorded above, the appeal preferred by the appellant/accused Saeed is hereby dismissed. The judgment and order dated 14.5.1990 passed by Sessions Judge, Hardwar convicting and sentencing the appellant/accused Saeed u/s 304 (Part II) IPC for five years R.I. is hereby affirmed. The appellant/accused Saeed is on bail. His bail bonds are cancelled. Let him be taken into custody forthwith in order to serve out the sentence as imposed against him. 22. Let a copy of this judgment and order be sent back to the trial court concerned for compliance of the order forthwith. Rajeev Dang (Dharam Veer, J.) July 18, 2008