IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Jail Appeal No. 231 of 2008 Shiv Bahadur S/o Sri Swami Prasad District Dehradun. ……. Appellant (in Jail) Versus State of Uttarakhand …… Respondent Present : Sri U.S. Bhakuni, Advocate (Amicus Curiae) present for the appellant. Sri Amit Bhatt, A.G.A. present for the State/respondent. Hon’ble Prafulla C. Pant, J. Hon’ble Servesh Kumar Gupta, J. [Oral : Hon’ble Praffulla C. Pant,J. ] This appeal is received from the convict (appellant) through Superintendent, District Jail, Dehradun. The appeal is directed against judgment and order dated 06.08.2008 passed by Additional Sessions Judge/Ist F.T.C., Dehradun in Sessions Trial No.191 of 2006 whereby the said court has convicted accused/appellant Shiv Bahadur under sections 302 and 324 of Indian Penal Code, 1860 (for short I.P.C.). The accused/appellant has been sentenced to imprisonment for life, and also directed to pay the fine of ` 5,000/- under section 302 IPC. He has been further sentenced to rigorous imprisonment for the period of one year and also directed to further pay the fine of ` 5,00/- under section 324 IPC. 2 2. Heard learned Amicus Curiae for the appellant, learned A.G.A. for the State and perused the lower court record. 3. Prosecution story in brief is that on 22.09.2006 at about 06.15 a.m., PW-1 Shyamwati @ Guddan was sweeping frontage of her house situated in Rajeevnagar, Dharampur when her father-in-law Shiv Bahadur (accused/appellant) in drunken stage started hurling abuses at her. She asked the accused/appellant to desist from using foul language against her on which the accused Shiv Bahadur went inside the house and came out armed with a knife and he inflicted two knife blows on her person. PW-1 Shyamwati shouted for help on which her husband Vikkipal @ Jitendra came out to save her. Accused Shiv Bahadur gave a knife blow on the neck of his son Vikkipal @ Jitendra and injured him. He (Vikkipal @ Jitendra) was immediately taken to Doon hospital, where he was declared brought dead. PW-1 Shyamwati got scribed First Information Report (exhibit A-1) through PW-5 Anand Bhatt and gave at Police Station, Dalanwala at about 08.40 a.m. on the very day (22.09.2006). The police went to the hospital to take dead body of Vikkipal @ Jitendra in their possession and prepared inquest report (exhibit A-4), other necessary papers and dead body was handed over in a sealed condition for postmortem examination through PW-8 Constable Netra Pal Singh. PW-6 Dr. Ajit Gairola conducted the postmortem examination on the dead body of Vikkipal @ Jitendra on the very day 22.09.2006 at 03.15 p.m. He prepared autopsy report (exhibit A-5) and recorded incised wound on the neck of the deceased. He opined that deceased had died due to shock and haemorrhage as a result of ante mortem injury suffered by him. Meanwhile PW-1 Shyamwati was medically examined by PW-4 Dr. Sujata Singh of Female 3 Hospital who prepared injury report (exhibit A-3) and recorded two incised wounds on the person of the injured witness at about 09.00 a.m. on 22.09.2006. PW-10 Sub Inspector Ashok Kumar Arora investigated the crime who went to the spot, interrogated the witnesses, inspected the spot and prepared site plants (exhibit A-16 and A-17). He also got taken blood stained soil and simple soil from the place of incident with the help of S.I. Manohar Singh Dasouni. Knife used in the crime was also recovered; recovery memo (exhibit A-7) was prepared. On completion of investigation, chargesheet (exhibit A-18) was submitted by the Investigating Officer against accused Shiv Bahadur for his trial in respect of offences punishable under sections 302, 324 and 504 IPC. 4. Chief Judicial Magistrate, Dehradun on receipt of the chargesheet after giving necessary copies to the accused as required under section 207 of Cr.P.C. committed the case to the court of Sessions for trial. Learned Sessions Judge, Dehradun on 20.01.2007 after hearing the parties, framed the charge of offences punishable under sections 302 and 324 IPC against accused Shiv Bahadur who pleaded not guilty and claimed to be tried. On this prosecution got examined PW-1 Shyamwati (injured eye witness and informant), PW-2 Taimur before whom accused made extra judicial confession, PW-3 Riyasat in whose presence police took blood stained soil and simple soil from the place of incident, PW-4 Dr. Sujata Singh who examined injuries on the person of Shyamwati, PW-5 Anand Bhatt through whom Shyamwati got scribed First Information Report, PW-6 Dr. Ajit Gairola who conducted the postmortem examination on the dead body of Vikkipal @ Jitendra, PW-7 S.I. Manohar Singh Dasouni who got prepared recovery memo of blood stained soil and simple soil and also prepared the recovery memo of 4 knife, PW-8 Netra Pal Singh who handed over the dead body of the deceased for postmortem examination, PW-9 Constable Davendra Singh who prepared check report of First Information Report, and PW-10 S.I. Ashok Kumar Arora who investigated the crime. 5. The oral and documentary evidence was put to the accused under section 313 of Cr.P.C. in reply to which he alleged that the evidence produced against him is false and he has been implicated falsely due to enmity. However, no evidence in defence was adduced. After hearing the parties, the trial court found that accused/appellant Shiv Bahadur is guilty of charge of the offences punishable under sections 302 and 324 IPC. After hearing on sentence, trial court sentenced the convict to imprisonment for life and directed to pay fine of ` 5000/- under section 302 IPC. The convict was further sentenced to rigorous imprisonment for a period of one year and directed to pay fine of ` 500/- under section 324 IPC. Aggrieved by the said judgment and order dated 06.08.2008 passed by Additional Sessions Judge/Ist F.T.C., Dehradun in Sessions Trial No.191 of 2006. This appeal was got sent by the convict through Superintendent, District Jail, Dehradun. 6. Before further discussion, we think it just and proper to mention the ante mortem injury found on the person of the deceased by PW-6 Dr. Ajit Gairola who conducted postmortem examination on 22.09.2006 at 03.15 p.m. on the dead body of Vikkipal @ Jitendra. The ante mortem injury recorded in autopsy report (exhibit A-5) by the said Medical Officer is being reproduced below:- “Incised wound size 4cm x .2cm, .4cm deep on left side of neck, 3cm above clavicle clotting of blood, clothes were soiled with blood”. 5 On internal examination, Medical Officer opined that cartilage artery and muscle on the neck were found cut. He opined that deceased has died due to shock and haemarroage as a result of ante mortem injury. PW-6 Dr. Ajit Gairola further stated that deceased could have suffered in the injury at about 06.00 a.m. on 22.09.2006 by sharp edged weapon. From the medical evidence on record, it is established that Vikkipal @ Jitendra died homicidal death on 22.09.2006. Now we have to see whether accused/appellant Shiv Bahadur committed murder of own his son Vikkipal @ Jitendra as suggested by prosecution, or not. We have to see further as to whether Shayamwati was given knife blows by the accused or not. 7. Star witness of this Case is PW-1 Shyamwati who is widow of the deceased, and got injured in the incident. She has stated that on 22.09.2006 at about 06.15 a.m. she was brooming the frontage of her house. She further states that her father-in-law (accused Shiv Bahadur) who was in a drunken stage started hurling abuses at her. PW-1 Shyamwati further states that she asked her father-in-law to desist from using foul language on which he went inside the house and came out with a knife which he inflicted on her. The witness states that she suffered one incised wound on her left thumb and another near the left ear. The witness further narrates that on receiving injury, she shouted for help and her husband (Vikkipal@Jitendra) came out but accused/appellant inflicted knife blow on his neck. The witness further states that her husband was immediately taken with the help of neighbours to Doon Hospital where he was declared brought dead. PW-1 Shyamwati has further stated that thereafter she lodged First Information Report after getting the same, scribed through PW-5 Anand Bhatt. 6 The testimony of this witness is natural and trust worthy. Her presence in her house can not be doubted. Accused is her father-in-law and deceased was her husband. She suffered injuries in the incident as narrated by her as such there is no room for doubt in story narrated by her. PW-6 Dr. Sujata Singh who examined injury on the person of Shyamwati on 22.09.2006 at about 09.00 a.m. has proved medical injury report (exhibit A-3) prepared by her in which following two injuries are mentioned, found on the person of the injured PW-1 Shyamwati:- (i) Incised wound 2cm long on palmar aspect on left thumb. (ii) Incised wound 5cm long on left cheek , 1cm in front of earlobe. PW-4 Dr. Sujata Singh has opined that injured (Shaymwati) has suffered injuries caused by sharp edged object. The injuries were fresh in nature. Statement of this witness fully corroborates with what PW-1 Shyamwati has stated and we have discussed above. 8. PW-2 Taimur is also resident of Rajeev Nagar who has stated that soon after the incident accused Shiv Bahadur came to his house and asked to keep LPG Cylinder. Accordingly to this witness, he enquired as to why Shiv Bahadur is not doing his duty as he was a gas cylinder supply man, the accused told him that he had killed his son. This extra judicial confession made to this witness in the circumstances of the case also appears to be natural and further corroborates the testimony given by PW-1 Shyamwati. 7 9. Learned Amicus Curiae assisting the Court on behalf of the appellant submitted that appellant has been implicated because of the enmity between father and son. We have carefully gone through the entire evidence on record, the enmity is a double edged weapon. For the reason, an accused can be falsely implicated on account of enmity, the accused too can commit murder of the person who had the enmity for the same reason. PW-1 Shaymwati suffered injury in the incident and she would not spare the real culprit by making false against her father-in-law. First information Report of this case is also lodged within a reasonable time. There is no room of making false story for a widow whose husband has been murdered. 10. It is also argued on behalf of the appellant that husband and wife might have quarreled among themselves and to save herself, the wife might have implicated the appellant. There is no such stand taken in replies given to the quarries made by trial court under section 313 Cr. P.C. that deceased and his wife quarreled in the house. No such suggestion was given to any of the witnesses in this connection, as such we can not presume a hypothetical situation without anything on the record. 11. For the reasons as discussed above, we find no force in this appeal which is liable to be dismissed. The appeal is dismissed. The Judgment and order dated 06.08.2008 passed by Additional Sessions Judge/Ist F.T.C., Dehradun in Sessions Trial No.191 of 2006 recording conviction and sentence against accused/appellant Shiv Bahadur under sections 302 and 324 IPC, is hereby affirmed. Let the copy of this judgment be sent to the Superintendent, 8 District Jail, Dehradun for communication to the appellant. Lower Court Record be sent back. (Servesh Kumar Gupta, J.) (Prafulla C. Pant, J.) JKJ 21.05.2011