IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL (Court’s order whether the case is or not approved for reporting) Chapter VIII, Rule 32(2)(b) Description of the Case Crl. Appeal no. 2045 of 2001 (Old no. 367/ 1989) Pati Ram. …Appellants. Vs. The State. …..Respondent Approved for Reporting _____________________ Not approved for Reporting Date of Decision: 7th May, 2008. Initial of Judge --------------------------- Reser ved J u d gm en t H IGH COURT OF UTTARAKH AND AT NAINITAL Cr im in a l App ea l n o. 20 4 5 of 20 0 1 (Old no. 367 of 1989) Pati Ram S/ o Sri Govind Ram, R/ o village Shyalpani, Police Station Karanprayag, District Chamoli. ------- Accused/ appellant. Versus The State. ------- Respondent Sri Lokendra Dobhal, learned counsel for the appellant, Sri M.A. Khan, learned Brief Holder for the State. Dated : Ma y 7, 20 0 8 H on ’ble Dh ar am Veer , J . This appeal preferred u/ s 374(2) of The Code of Criminal Procedure, 1973 (hereinafter referred to as the Cr.P.C.) is directed against the judgment and order dated 6th February 1989 passed by Sessions Judge, Chamoli in Sessions Trial no. 13 of 1988 State vs. Pati Ram, whereby the learned Sessions Judge has convicted the accused/ appellant Pati Ram for the offence punishable u/ s 324 of The Indian Penal Code, 1860 (hereinafter referred to as the I.P.C.) and sentenced him to undergo rigorous imprisonment for a period of 2 years’. 2. The prosecution case, in brief, is that the complainant PW-1 Parmanand, has lodged a written report Ext. Ka-1 scribed through PW-4 Bhakhtawar Singh at the Police Station, Karanprayag, District, Chamoli on 02.06.1988 with the averments that on 02.06.1988 at about 7:00 p.m. he was sitting at his house. At that time the accused Pati Ram while coming towards the forest armed with a single barrel gun came there and started abusing him. The accuse keeps grudge against him. The accused, with the intention to kill him tried to inflict gunshot injury at his chest, but on his bending down, the 2 gunshot has hit at his left shoulder. Bakhtawar (PW-4) and other persons were present there who have seen the incident. On the basis of the written report Ext. Ka-1, the Chik report Ext. Ka-3 was prepared by PW-5 Head Constable Kunwar Singh and a case crime no. 52 of 1988 u/ s 307 I.P.C. in Police Station Karanprayag was registered against the accused/ appellant on 02.06.1988 at 08:10 p.m. an entry in regard to the crime was made in the G.D. a copy of which is Ext. Ka-4. 3. The injured Parmanand was taken, at first, Public Health Centre at Karanprayag from where he was taken to the District Hospital, Gopeshwar on the next day. The injured was medically examined on 03.06.1988 at 1:00 p.m., and the injury report was prepared which is Ext. Ka-5. X-Ray of the shoulder of the injured was conducted by PW-2 Dr. R.N. Singh. The X- Ray Plate is Ext.-2 and the X-Ray report dated 04.06.1988 was prepared which is Ext. Ka-2. 4. The investigation of the case was entrusted to PW-6 S.O. V.P. Sharma, who during the course of investigation has recorded the statement of the injured and witnesses. He, on 03.06.88 a SBBL Gun 12 Bore bearing no. 4243-79 with 4 cartridges owned by Govind Ram (father of the accused) and its licence, had taken in his possession and a recovery memo Ext. Ka-6 was prepared. On the same day after making spot inspection, he prepared site-plan of the place of incident. The site-plan is Ext. Ka-7. On 03.06.88 when PW-2 S.O. V.P. Sharma was in search of the accused and in this process he arrived 1 k.m. ahead at the way heading from village Silangi to village Shyalpani he apprehended the accused Pati Ram at 2:20 p.m. with two barrel Gun. The accused did not show any licence of the gun. A recovery memo was prepared which is Ext. Ka-8. On 08.06.1988 the injured handed over his clothes, i.e. one shirt and one undershirt which he wore at the time of the incident, to the Investigating Officer. A FARD was prepared in 3 this regard, which is Ext. Ka-9 on the record. After completing investigation, the Investigating Officer on 04.07.1988 submitted charge sheet Ext. Ka-10 against the accused u/ s 307 I.P.C. 5. Learned Munsif Magistrate, Rudraprayag on receipt of the charge sheet, after giving necessary copies to the accused as required u/ s 207 Cr.P.C., committed the case to the Court of Sessions for trial on 30.07.1988. 6. On 08.08.1988, the learned Sessions Judge, Chamoli after hearing the parties framed the charge of offence punishable u/ s 307 I.P.C. against the accused Pati Ram. The charge was read over and explained to the accused who pleaded not guilty and claimed to be tried. 7. In order to prove its case, the prosecution has examined PW-1 Parmanand, the injured, PW-2 Dr. R.N. Singh, PW-3 Hari Prasad-eye witness, PW-4 Bakhatawar Singh-scriber of the FIR, PW-5 Head Constable Kunwar Singh and PW-6 S.O. V.P. Sharma, Investigating Officer. 8. The oral and documentary evidence was put to the accused in the form of questions u/ s 313 Cr.P.C. who, in reply, denied the allegations made against him and has stated that he has been falsely implicated in the case. The accused did not produce any evidence in his defence. 9. After appreciating all the evidence available on record and hearing the learned counsel for the parties, the learned Sessions Judge has convicted the accused/ appellant Pati Ram for the offence punishable u/ s 324 I.P.C. and sentenced him to undergo rigorous imprisonment for a period of 2 years’. Aggrieved with the conviction and sentence awarded to him, the accused/ appellant has preferred this appeal. 4 10. I have heard Sri Lokendra Dobhal, learned counsel for the accused/ appellant and Sri M.A. Khan, learned Brief Holder for the State. 11. Before further discussion, it is pertinent to mention the injuries found in the person of the injured Parmanand. The injured was medically examined on 03.06.1988 at 1:00 p.m. at District Hospital, Gopeshwar and in this regard an injury report was prepared which is Ext. Ka-5 on the record. The following injuries were found on the body of the injured Parmanand:- 1. Contusion on left shoulder (14cm. in diameter), 2. Lacerated wound on left shoulder size 10cm. x 7cm. x 2cm.- Charring around wound is present, 3. Small lacerated wound of size 1cm. x 1cm. x 1cm. around injury lacerated wound is present. In the opinion of the Medical Officer, duration of injuries is about 12 hrs. It is opined that the nature of injury will be decided after X-Ray. Type of the weapon could not he assessed. Possibly it is caused by a pellet as charring is present around wound. Further point in favour of pallet injury will be decided by X-Ray of the shoulder. 12. X-Ray of the left shoulder of the injured Parmanand was taken. PW-2 Dr. R.N. Sharma has conducted X-Ray of the left shoulder of the injured. The X-Ray plate is Ext.-2. The report is Ext. Ka-2. 13. The prosecution to prove its case, first of all, has examined PW-1 Parmanand, the injured, who has stated that he was in he service of Army. After completing 22 years’ of service he came back in the month of December 1984. Accused appellant Pati Ram, R/ o Selwani, who was present in the court, was already known to him. Selwani is situated upper side of this village at the distance of three miles. Father of Pati Ram, Sri Govind Ram had a licensed gun. On 02.06.1988 at 6:30 P.M. 5 his younger son Hari Prasad brought the buffalo after giving it water and he took hold of the buffalo from his son for tying it at the door of his Gaushala. His wife Rajeshwari was with him and his grand son was at her lap. His son Hari Prasad was also present there. The accused Pati Ram came near him from the upper way and he started abusing him. He said to accused Pati Ram that he is alike to the age of his father. Why are you hurling abuses? Sri Bakhtawar Singh, who serves in B.S.F. and had came in the village, on hearing noise of abuses also reached at the place of occurrence. At that moment accused Pati Ram reached near him and at a distance of 7-8 steps he fired at him. In the process to rescue him he bent down to his right towards his younger son, so that the fire may not hurt him but the gunshot fired by the accused Pati Ram had hit at his left shoulder peeling the skin and charring it. Blood oozed out from the injury. In the meanwhile, the accused Pati Ram started to refill the gun with another cartridge. Noticing it he fled from there jumping. Bakhtawar Singh was in apprehension that on account of firearm injury Parmanand may be died therefore, he came towards him and called to stop him. He and Bakhtawar Singh directly came at Police Station, Karnprayag, which is situated about 2.75 miles from his village. He applied pressure by his hand at his shoulder so that blood may not ooze out excessively. He has shown his injured left shoulder in the Court on lifting his shirt and undershirt, which was located on the top of the shoulder. He dictated the report to the scriber Bakhatawar and after hearing the same he put his signatures on it. The report is Ext. Ka-1 on the record which was lodged by him in the Police Station. Two constables took him to Hospital at Karanprayag. His wounds were covered with a bandage and one injection was also injected. Thereafter, he was referred to District Hospital, Gopeshwar and Police Constables took him there. X-Ray of his shoulder was done by the doctor at Gopeshwar and pellets were removed through operation. He remained admitted for ten days’ in the District Hospital, 6 Gopeshwar and after treatment he got discharged. After remaining for three days’ at home he was admitted in the Military Hospital, Joshimath. The accused Pati Ram has fired at him with close range, on account of which the pellets could not be spread. Occasionally, the accused Pati Ram used to visit his village in intoxicated position and used hurling abuses. The accused used to stay in the night in the house his father’s sister in his village which is located downward to his house. Name the father’s sister is Anusuya Devi whose husband serves in P.A.C. Besides his persuasion, the accused keeps a grudge towards him. The accused was armed with a single barrel gun from which he had fired at him. This witness was cross-examined by the defence counsel but nothing has come out in his evidence, which may create any doubt. The evidence of this witness on each and every aspect is reliable, believable and trustworthy. 14. PW-2 is Dr. R.N. Singh, Medical Officer who has stated that on 01.06.1988 he was posted at District Hospital, Gopeshwar. Dr. Dhaundhiyal has sent a slip in order to conduct X-Ray of left shoulder of Parmanand. And endorsing in the register of the hospital as an indoor patient, he did X-Ray of Parmanand. The X-Ray plate Sl. No. 890 was prepared and on being examination of the X-Ray plate, he found multiple pellets of firearm on the frontal side of left shoulder, which were entered from front of the left shoulder. He prepared the X-Ray report Ext. Ka-2 on his own handwriting. The X-Ray plate is Ext.-2. 15. PW-3 is Hari Prasad, who at the time of giving his testimony was aged about 12 years’. He has stated that the accused Pati Ram is already known to him. His father’s name is Parmanand. The accused Patiram resides in village Sailpani. A forest known as PATAL falls in the way to Sailpani from his village. The source of water falls at a distance of 20-25 meters from his house. On that day at evening, his brother-Rakesh was 7 filling water at the source and he also reached at the source. The accused Pati Ram was forcing his brother to lift his pitcher, so that he may drink water. When his brother remained continuously filling his pitcher, the accused dashed the barrel of the gun at back side of the head of his brother and hurling abuses he went towards the village. He had come to his house from the water source. He was standing in front of his house. His mother was standing there taking his nephew in her lap. His father was tying the buffalo at the open place made for tying it. The accused Pati Ram reached there. His father asked the accused why he is hurling abuses; he is aged alike his father. On this the accused pointing the gun on his father had fired at his father from the front. At that time the accused was standing at a distance of 8-10 steps from his father. His father was hurt with the gunshot who by jumping fled towards downward. His father came back to home after about 10-12 days’. He was present outside the house alongwith his father towards his back, when the accused Pati Ram fired at him. One pellet of the fire hit by the accused Pati Ram on his father was also hit at upper and middle of his forehead. He did not go to hospital. He, his mother entered in the house and the accused Pati Ram also entered in another house. Abusing his mother, the accused said to his mother that he would also kill her. On listening this he and his brother both left the house and entered in the forest. He came back to his house on the next day from the forest. He had shown a round mark on the skin at his forehead and told that the pellet fired by the accused had hit at the same place. This witness was cross-examined by the defence counsel but nothing has come out in his evidence, which may create any doubt. The evidence of this witness on each and every aspect is reliable, believable and trustworthy. His testimony is very natural. 16. PW-4 is Bakhatawar Singh, scriber of the First Information Report. He has stated that Parmanand is resides in 8 his village Silangi. After the retirement of Parmanand from the Army he has been living in the village for the last many years. He has four sons, three daughters and wife. One of his sons is Hari Prasad. House of Sri Parmanand is situates 50 steps toward left from his house and between these; there is the Gaushala. He is Inter qualified and is residing outside since 16 years’. He is acquainted with the accused Pati Ram, who resides in village Shyanpandi which is at a distance of 2 to 2½ Kms. from his village. Houses of Pati Ram’s uncle, his father’s elder brother and his father’s sister are in his village. On 02.06.1988 he had come in the village on leave and he reached at the motor head, which is 2 kms. downwards to his village, at 5 p.m. He had reached one Km. ahead towards the village, on foot, from the motor head. Parmanand met him marching downwards down on the way and his right shoulder was injured. He had applied pressure of his hand on the shoulder. He accompanied with Parmanand to the Police Station, Karanprayag. Parmanand narrated the entire incident to the Clerk at the Police Station. No Sub Inspector was present at that time at the Police Station. The Clerk of the Police Station told Parmanand to lodge written report and on the dictation of the injured he has scribed the written report Ext. Ka-1 in the compound of the Police Station and after hearing the report, Parmanand has signed it. He also signed the written report. He identified his signatures as also the signatures of the injured Parmanand on the report. The Police Constable took Parmanand to hospital from the Police Station and he was accompanied with them. Neither he had given statement nor the Police had interrogated him. He had not reached at the village and he did not saw the accused Pati Ram firing on Parmanand. If it has written by the Sub Inspector, the same has been written wrongly. The extract of his statement Ext.-B recorded u/ s 161 Cr.P.C. was read over and the witness told that he has not given such statement to the Sub Inspector. 9 17. PW-5 is Head Constable Kunwar Singh who has stated that on 02.06.1988 he was posted as such in the Police Station Karanprayag. Parmanand, after reaching in the Police Station, has handed over the written report Ext. Ka-1 to him. Bakhatawar Singh was accompanied with the injured. On the basis of the written report he prepared the Chik First Information Report Ext. Ka-3. Entry in this regard was made in the G.D. at Rapat No. 34 at 08:10 p.m. dated 02.06.1988 a copy of which is Ext. Ka-4. 18. PW-6 is Station House Officer V.P. Shrama, the Investigating Officer of the case who has stated that on 02.06.1988 he was posted as such at Police Station Karanprayag. On that day Parmanand has lodged a report. Investigation of the case was commenced from 02.06.1988. In the process of investigation, he recorded the statement of Parmanand on the same day at the Hospital at Karanprayag. Bakhtawar Singh was also present in the hospital and he recorded his statement also. He came to know that Bakhatawar Singh had reached at the Police Station prior for lodging the report. He recorded the statement of the other persons of the village present in the hospital. The injured was examined medically at the Hospital at Karanprayag from where he was referred to the District Hospital, Gopeshwar where his X-Ray was conducted. At the night he reached village Idabadhani, the place where father of the accused was residing. He was anticipating that the accused would be apprehended there. On being inquired he did not find either father of the accused or the accused Pati Ram there. Son of the Pati Ram’s uncle met with him who has informed that the accused Pati Ram used to reside at village Shyalpani from some days, therefore he returned back. On 03.06.1988 he recorded statement of the Moharir and thereafter he came to Idabadhani where Govind Ram (father of the accused) met with him. He took in possession the licence gun of Govind Ram. Govind Ram also handed over four 10 cartridges. He took the licence of the gun in his possession. A recovery memo Ext. K-6 was prepared at the spot. In regard to accused Pati Ram it was informed that he resides in village Shyalpani and does agricultural work there. In the course of recording the statement of Rajeshwari W/ o Parmanand, it came out that the gun was single barrel from which the accused had fired at Parmanand. He also recorded the statement of Hari Prasad S/ o Parmanand. On the pointing out of Smt. Rajeshwari, he prepared the site plan Ext. Ka-7. He had gone to village Shyalpani in search of the accused and in this process he was marching towards Shyalpani from Silangi and was standing at a distance of one km. ahead. The accused Pati Ram met him in the way armed with a double barrel gun and he arrested the accused. In regard to the arrest of the accused Pati Ram and recovery of the gun, a FARD was prepared at the spot, the same was submitted in connection with the case u/ s 25 Arms Act. The accused Pati Ram was apprehended with a double barrel gun without its licence, he prepared recovery memo, a copy of which is Ext. Ka-8 on the record. On 04.06.1988 medical report was received at the Police Station. On 10.06.1988 he made entry in the case diary in regard to the recovery of cloths of the injured as the same were submitted by the injured on 08.06.1988. A FARD was prepared on 08.06.1988 of the recovery of the cloths. He was not present at the Police Station when the injured had submitted the clothes in the Police Station. Moharir Sri Kunwar Singh had taken in his possession the clothes of the injured, who kept them in sealed and the FARD Ext. Ka-9 was prepared. After completing investigation, he submitted charge sheet against the accused on 04.07.1988, which is Ext. Ka-10 on the record. 19. The oral and documentary evidence in question form was put to the accused/ appellant u/ s 313 Cr.P.C. who has denied the allegations made against him and has stated that he has been 11 falsely implicated in the case. The accused/ appellant did not produce any evidence in his defence. 20. Learned Counsel for the accused/ appellant Sri Lokendra Dobhal, has argued that the as per the evidence produced by the prosecution, no case for the offence punishable u/ s 324 I.P.C. is made out against the accused/ appellant. But as per the evidence discussed above PW-1 Parmanand, the injured has categorically stated that on the date, time and place of incident his younger son Hari Prasad brought the buffalo after giving it water and he took hold of the buffalo from his son for tying it at the door of his Gaushala. His wife Rajeshwari was with him and his grand son was at her lap. His son Hari Prasad was also present there. The accused Pati Ram came near him from the upper way and he started abusing him. He said to the accused Pati Ram that he is alike to the age of his father. Why he is hurling abuses? At that moment accused Pati Ram reached near him and at a distance of 7-8 steps he fired at him. In the process to rescue him he bent down to his right, so that the fire may not hurt him but the gunshot fired by the accused Pati Ram had hit at his left shoulder peeling the skin and charring it. Blood was oozed out from the injury. In the meanwhile, the accused Pati Ram started to refill the gun with another cartridge. Noticing it, he fled from there jumping. He and Bakhtawar Singh directly came at Police Station, Karnprayag. He applied pressure by his hand at his shoulder so that blood may not ooze out excessively. He dictated the report to the scriber Bakhatawar. The report is Ext. Ka-1 on the record. Two constables took him to Hospital at Karanprayag. Thereafter he was referred to District Hospital, Gopeshwar. X-Ray of his shoulder was done by the doctor at Gopeshwar and pellets were removed out through operation. He remained admitted for ten days’ in the District Hospital, Gopeshwar and after the treatment he got discharged. Evidence of PW-1 injured Parmanand is fully corroborated with the evidence of the PW-3 Hari Prasad, who has stated that, on the 12 day of incident, his father was tying the buffalo at the open place made for tying it. The accused Pati Ram reached there. His father asked the accused why he is hurling abuses; he is aged alike his father. On this the accused pointing the gun at his father had fired at his father from the front. At that time the accused was standing at a distance of 8-10 steps from his father. His father was hurt with the gunshot who by jumping fled towards downward. His father came back to home after about 10-12 days’. He was present outside the house alongwith his father towards his back, when the accused Pati Ram fired at his father. Evidence of PW-1 further gets corroboration from the evidence of PW-2 Dr. R.N. Singh, Medical Officer who has stated that on 01.06.1988 he was posted at District