IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.432 OF 2001 (OLD NO.2935 OF 1998) 1. Gulab Singh Pundir 2. Pyari Devi Both residents of Indira Colony, P.S. Kotwali Uttarkashi, District Uttarkashi ……… Appellants Versus State of Uttarakhand .……… Respondent Dated: April 19, 2010 Sri Dinesh Chauhan, Adv. holding brief of Sri Narayan Singh Negi, Advocate for the appellants. Sri Amit Bhatt, Additional Government Advocate 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 11.12.1998 passed by Sessions Judge, Uttarkashi in Special Trial No.10/1997, State Vs. Gulab Singh and another, whereby the learned Sessions Judge convicted the appellant/accused Gulab Singh under Sections 324 and 323/34 of The Indian Penal Code, 1860 (hereinafter to be referred as the IPC) and sentenced him to undergo three months simple imprisonment for the offence u/s 324 IPC and a fine of Rs.200/- for the offence u/s 323 r/w Sec.34 IPC. Appellant/accused Pyari Devi was convicted under Sections 324/34 and 323 IPC and was sentenced to one month’s simple imprisonment u/s 324 r/w Sec. 34 IPC and a fine of Rs.300/- u/s 323 IPC. In case of default of payment of fine, 30 days simple imprisonment was further awarded to the appellant/accused Gulab Singh and 45 days simple imprisonment was awarded to appellant/accused Pyari Devi. However, the appellants/accused were acquitted of the charges under Sections 452, 504, 506 and 307 IPC read with Section 3(2)(v) of S.C. and S.T. (Prevention of Atrocities) Act (hereinafter to be referred as the Act) by the court below. 2. Heard learned counsel for the parties and perused the entire material on record. 3. In brief, the prosecution case is that complainant Sudama lodged the First Information Report in the police station stating that on 4.9.1997 he was working at Uniyal Bhawan. Meanwhile, Chandra Shekar resident of his locality came to him and told that Gulab Singh and his wife Pyari Devi (the appellants herein) has taken away his wife Aitbari Devi at their house and are assaulting her. On this, he reached his house and saw that his wife is not at home. Hearing the cries of his wife, coming from the house of appellants/accused, he rushed for her rescue at the house of appellants/accused and saw that the appellants/accused are assaulting his wife. The appellants/accused were having knife and danda in their hands. Till then people from the vicinity also reached there. His wife was saved on the intervention of complainant and neighbourers. The appellants/accused threatened him for life in case he took any action against them and uttered defamatory words against him. It was further alleged that the said incident took place at 3 PM. The appellants/accused have previous enmity with him pertaining to drain. With the same averments, the F.I.R. was lodged by Sudama on the same day at 03:45 PM at Police Station Kotwali Uttarkashi. That F.I.R. is Ext.Ka-1. On the basis of this F.I.R., Chik F.I.R. of the case was prepared by Constable Clerk Keshavanand, i.e. Ext.Ka- 2. Necessary entries were also made in the G.D., carbon copy of which is Ext.Ka-3. The investigation of this case was entrusted to Deputy S.P. Sri Sudarshan Singh (P.W.9). On the same day at 04:25 PM, injured Smt. Aitbari Devi was medically examined by P.W.7 Dr. T.A. Rafat, who after the medical examination, prepared the injury report Ext.Ka-4. During the course of investigation, the Investigating Officer took into possession blood stained and plain earth and knife, used in the said crime, from the place of occurrence and prepared FARDs Ext.Ka-5 and Ka-6, respectively. The I.O. also inspected the place of occurrence and prepared the site-plan, i.e. Ext.Ka-7 and took into possession blood stained clothes of the injured and prepared FARD Ext.Ka-8. The I.O. also sent the recovered articles for the chemical examination. During the course of investigation, the I.O. also recorded the statement of the witnesses and after completing the investigation, he filed the charge sheet against the appellants/accused, i.e. Ext.Ka-9. 4. After receiving the charge sheet, learned Chief Judicial Magistrate, Uttarkashi, committed the case to the court of Sessions on 8.10.1997 after giving necessary copies to the appellants/accused as prescribed u/s 207 Cr.P.C. 5. On 21.10.1997, learned Special Judge, Uttarkashi framed the charge of offences punishable under Sections 452, 307 IPC read with Sec. 3(2)(v) of the Act and 504 and 506 of IPC against the appellants/accused. The charge was read over and explained to the appellants/accused, who pleaded not guilty and claimed to be tried. 6. In order to prove its case, the prosecution has examined P.W.1 Sudama, complainant and eyewitness of the case, P.W.2 Smt. Aitbari Devi, injured eyewitness, P.W.3 Smt. Narayani Devi, hostile witness, P.W.4 Smt. Jaibulnisha, eyewitness, P.W.5 Nand Lal, scriber of the report, P.W.6 Constable Clerk Keshwanand, who prepared the Chik F.I.R. of the case and also made entries in the G.D., P.W.7 Dr. T.A. Rafat, Medical Officer, who medically examined the injured and prepared the injury report Ext.Ka-4, P.W.8 Genda Lal, witness of the recovery and P.W.9 Deputy S.P. Sudershan Singh, Investigating Officer of the case. 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 have denied the allegations made against them. However, they have not produced any oral or documentary evidence in their defence. 8. After appreciating the entire evidence on record and hearing learned counsel for the parties, learned Sessions Judge, Uttarkashi vide his judgment and order dated 11.12.1998 convicted and sentenced the appellants/accused as mentioned above. Against the said judgment and order dated 11.12.1998, the appellants/accused have preferred this appeal. 9. Before further discussion, it is pertinent to mention that the injured Smt. Aitbari was got medically examined on the same day i.e. 4.9.1997 at 4:25 PM by P.W.7 Dr. T.A. Rafat, who after the medical examination, prepared the injury report Ext.Ka-4, which is as under:- i) Incised wound 2 x 0.1 cm x skin deep over left side of scalp of head about 5 cm above left ear, edges and margin sharp, direction oblique. Fresh blood oozing, hair cut present. ii) Lacerated wound 0.1 cm x 0.1 cm x skin deep over upper eyelid of right eye in medial side. iii) Running fresh blood from nose, swelling and tenderness. iv) Wide spread contusion over right half of forehead extending from ant. hair line to lower eyelid, haematogenous swelling at back of right side. v) Small cut 0.2 cm x 0.1 cm x skin deep over left upper eyelid just below eyebrow. Opinion:- Injury no.1 is simple, caused by sharp weapon. Injury no.2 is caused by blunt object and is simple. Injury no.3 kept under observation and advised X-ray and referred to Surgeon (ENT), caused by blunt object. Injury no.4 is simple, caused by blunt object. Injury no.5 is simple, caused by sharp weapon. All above mentioned injuries 1, 2, 3, 4 and 5 are fresh in nature. Patient has been admitted. 10. To prove the above-noted injury report, the prosecution has examined P.W.7 Dr. T.A. Rafat, who has stated that on 4.7.1997 he was posted as Emergency Medical Officer at District Hospital Uttarkashi. On that day at 4:25 PM, he medically examined Smt. Aitbari Devi. He has proved the injury report Ext.Ka-4 prepared by him at the time of medical examination. 11. To prove its case further, the prosecution has examined P.W.1 Sudama, who has reiterated the version of the F.I.R. He has proved the F.I.R. Ext.Ka-1 lodged by him in the police station. 12. P.W.2 Smt. Aitbari Devi has stated that the said incident took place on 4.9.1997 at about 3 PM. She stated that while she was at her house both the appellants/accused came there. Appellant/accused Gulab Singh caught hold her hand and mouth and appellant/accused Pyari Devi caught her legs and both of them took her at their house. They took her in a room and locked its door from inside. She further deposed that appellant/accused Gulab Singh was having knife and appellant/accused Pyari Devi was having danda and bhala in their respective hands. Appellant/accused Gulab Singh inflicted injuries on her head and back by means of knife and Pyari Devi caused injuries on her back, chest and hands by danda and bhala. She further stated that the appellants/accused caused injuries to her with intention to kill her. Due to these injuries blood oozed out from her nose and head. On hearing her cries, her husband and people from the vicinity arrived at the place of occurrence. When her husband reached at the spot then the appellant/accused Gulab Singh threatened him for life in case he took any action against him. Her husband and people from vicinity opened the door and saved her from the clutches of the appellants/accused. She further stated that the appellant/accused Gulab Singh had also removed her saree. She was taken to police station from the spot. She further stated that they are Harijan by caste and the appellants/accused belongs to higher caste. Thereafter, she was taken to hospital where she got medically examined. She remained admit in the hospital for about 15 days. This witness was cross- examined at length by the defence counsel but nothing has come out in her statement which may create any doubt in her statement. The statement of this witness is reliable, believable and inspires confidence. 13. P.W.3 Narayani Devi has not supported the prosecution case and was declared hostile. 14. P.W.4 Smt. Jaibul Nisha has corroborated the statements of P.W.2 Smt. Aitbari Devi. 15. P.W.5 Nand Lal has stated that the report Ext.Ka-1 was written by him on the dictation of P.W.1 Sudama. 16. P.W.6 Constable Clerk Keshwanand has stated that on 4.9.1997 he was posted as Constable Clerk at Police Station Kotwali, Uttarkashi. On that day, Sudama lodged a written report Ext.Ka-1 in the police station, on the basis of which he has prepared the Chik FIR Ext.Ka-2. He also made entries in the G.D., carbon copy of which is Ext.Ka-3. 17. P.W.8 Genda Lal has stated that on 4.9.1997 the Investigating Officer had taken the blood stained and plain earth from the house of appellant/accused Gulab Singh and had prepared the FARD Ext.Ka-5. He had also signed on the same FARD. On the same day, the I.O. also recovered knife from the house of the appellants/accused and prepared the FARD Ext.Ka-6. He identified the plain earth Ext.1, blood stained earth Ext.2 and knife Ext.3 in the court below. 18. P.W.9 Deputy S.P. Sudershan Singh has stated that on 4.9.1997 the investigation of the case was entrusted to him. During the course of investigation, he recorded the statement of the witnesses, inspected the place of occurrence and prepared the site-plan Ext.Ka-7, took the bloodstained and plain earth from the place of occurrence vide Fard Ext.Ka-5, took the bloodstained knife into possession vide Fard Ext.Ka-6 and also took into possession clothes viz. one blouse, one petticoat and a saree of injured Smt. Aitbari Devi worn by her at the time of incident vide Fard Ext.Ka-8. On completion of the investigation, he submitted the charge sheet against the appellants/accused, which is Ext.Ka-9. He further stated that on 25.9.1997, the case property was sent to Scientific Laboratory, Agra for chemical examination. 19. Learned counsel appearing on behalf of the appellants argued that the prosecution has not proved its case against the appellants/accused beyond reasonable doubt. I do not find any force in this argument for the reason that P.W.2 Smt. Aitbari, who is the injured eyewitness of the case, has stated in her deposition that on the date of incident i.e. 4.9.1997 at about 3 PM while she was at her house both the appellants/accused came there. Appellant/accused Gulab Singh caught hold her hand and mouth and appellant/accused Pyari Devi caught her legs and both of them took her at their house. They took her in a room and locked its door from inside. She further deposed that appellant/accused Gulab Singh was having knife and appellant/accused Pyari Devi was having danda and bhala in their respective hands. Appellant/accused Gulab Singh inflicted injuries on her head and back by means of knife and Pyari Devi caused injuries on her back, chest and hands by danda and bhala. She further stated that the appellants/accused caused injuries to her with intention to kill her. Due to these injuries blood oozed out from her nose and head. On hearing her cries, her husband and people from the vicinity arrived at the place of occurrence. When her husband reached at the spot then the appellant/accused Gulab Singh threatened him for life in case he took any action against him. Her husband and people from vicinity opened the door and saved her from the clutches of the appellants/accused. She further stated that the appellant/accused Gulab Singh had also removed her saree. She was taken to police station from the spot. Thereafter, she was taken to hospital where she got medically examined. She remained admit in the hospital for about 15 days. It is also stated by her that they are Harijan by caste and the appellants/accused belongs to higher caste. The evidence of this witness is reliable, believable and natural and inspires implicit confidence and the same also gets full corroboration from the evidence of P.W.1 Sudama and P.W.4 Jaibulnisha, who too have fully supported the prosecution case in their statement. Apart from above, the evidence of P.W.1 Smt. Aitbari further gets full corroboration from the injury report Ex.Ka-4 as well as from the medical evidence of P.W.7 Dr. T.A. Rafat. All these facts and circumstances give full support and, therefore, wholly corroborate the statement of the injured Smt. Aitbari Devi. Thus, in view of the aforesaid discussion, I am of the considered view that the offences punishable under Sections 324 and 323/34 IPC against the appellant/accused Gulab Singh and offences punishable under Sections 324/34 and 323 IPC against the appellant/accused Pyari Devi are fully proved beyond any reasonable doubt and the trial court has rightly convicted and sentenced the appellants-accused as discussed above. I am in full agreement with the findings recorded by the trial court for convicting and sentencing the appellants-accused as above-said discussed. 20. For the foregoing reasons, the appeal is devoid of any merits and the same is accordingly dismissed. The judgment and order dated 11.12.1998 passed by Sessions Judge, Uttarkashi in Special Trial No.10/1997, State Vs. Gulab Singh and another, in convicting and sentencing the appellants-accused, as discussed above, needs no interference by this Court and the same is hereby made affirmed. The appellants- accused are on bail. Let them be taken into custody forthwith to serve out the sentence as awarded against them. Their bail bonds stand cancelled. However, it is provided that the period already served out in jail by the appellants-accused during investigation, trial or appeal shall be adjusted after being verified from records. 21. A copy of this order along with the record shall be sent back to the trial court concerned for compliance forthwith. (Dharam Veer, J.) 19.04.2010 Rajni