IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Criminal Appeal No. 855 of 2001 (Old No. 2869 of 1987) Jagdish Lal S/o Gopal Das R/o Grover Cycle Store Main Market Rudrapur P.S. Rudrapur District Nainital …..Appellant Vs State of U.P. … Opposite Party Sri J.S. Virk, learned counsel for the appellant Learned A.G.A. for the State Hon’ble B.C. Kandpal, J. This criminal appeal has been filed by the appellant against the judgment and order dated 13.11.1987 in Sessions Trial No. 231 of 1986 State Vs Jagdish Lal passed by learned Additional Session Judge, Nainital by which the appellant was convicted and sentenced under Section 323 I.P.C. to undergo rigorous imprisonment for four months. 2. According to the prosecution version, on 02.07.1985, in front of Dineshpur Police Chauki at 12:00 noon Jagdish Lal – accused caused hurt to constable Rup Singh C.P. no. 78 and constable Jagat Singh C.P. No. 120 who were posted at Chauki Dineshpur as public servants in discharge of their duties. Sri Rameshwar Datt Tyagi lodged the report on the same day about the incident at the police Chauki Dineshpur. On the oral request of the complainant – First Information Report under Sections 332, 333 and 504 I.P.C. was prepared against the accused/appellant – Jagdish Lal. The inured was taken into custody on the same day and the Danda, which was used at the commission of crime, was also taken into custody. Thereafter, the injured persons were also sent to hospital for medical examination. 3. The investigation of the case was entrusted to Sri Anand Swaroop Sharma who investigated the matter. He started investigation of the case on the same day. He recorded the statement of the witnesses and prepared the site plan. He also identified the Danda, which has been marked as Ex. Ka. 1 After investigation of the case, he submitted the chargesheet against the appellant. 4. Dr. N.D. Pande examined the injured on the body of Constable Jagat Singh and Constable Rup Ram Singh. He found following injuries on the constable Jagat Singh:- 1. Defuse swelling 5cm diameter area contusion 4cm X 2 cm on over left hand palm dorsal aspect Ad. X- ray. 2. Contusion 3 cm X 2 cm back side on left scapula radish in colour. 3. Abrasion 4 c X 1/4 cm on right hand forearm backside 5 cm below elbow joint. 5. The injury No. 1 on the body of constable Jagat Singh was examined by radiologist. Radiologist prepared X- ray report. On the basis of this X-ray plate Dr. N.D. Pande submitted his supplementary report wherein he has mentioned that injury No. 1 was grievous in nature. 6. On the same day i.e. on 02.07.1985, Dr. N.D. Pande also examined the injured Ram Rup Singh. The doctor has found abrasion contusion 4cm X 2 cm on left hand forearm 3 cm above from wrist joint reddish colour. The doctor has also stated in his report that the injury on the person – Ram Rup Singh were simple in nature and caused by some blunt object. 7. After submission of the chargesheet the accused/appellant was committed to the Court of Sessions and the learned Addl. Sessions Judge, Nainital on 03.10.1986 framed the charge under Sections 332 and 333 I.P.C. against him. The accused denied of the charge levelled against him and claimed the trial. 8. The prosecution in order to support its case produced Ashok Kumar (P.W.1), Ramavtar (P.W.2), Brij Lal (P.W.3), Vijay Lal (P.W.4), Jagat Singh (P.W.5), Ram Rup Singh (P.W.6), Beeri Lal (P.W.7), Ashok Kumar (P.W.8), Vijay Kumar (P.W.9), Anand Swaroop (P.W. 10) and Dr. N.D. Pande (P.W.11). it is pertinent to mention here that out of these eleven prosecution witnesses, six witnesses, namely, Ashok Kumar (P.W.1), Ramavtar (P.W.2), Brij Lal (P.W.3), Vijay Lal (P.W.4), Ashok Kumar (P.W.8) and Vijay Kumar (P.W.9) did not support the prosecution story and they were declared hostile. 9. After the evidence of the prosecution was over, the statements of the accused/appellant was recorded under Section 313 of the Criminal Procedure Code. The accused/appellant did not adduce any evidence in his defence. 10. The learned trail court, after hearing learned counsel for the parties and having perused the entire evidence on record convicted the accused under Section 323 of I.P.C. and hereon sentenced him for four months rigorous imprisonment vide judgment and order dated 13.11.1987. 11. Feeling aggrieved by the impugned judgment and order, the convict preferred the appeal before the Allahabad High Court, which has been transferred to this court after creation of new State of Uttaranchal. 12. Heard Sri J.S. Virk, learned counsel for the appellant, learned A.G.A. for the State and perused the record. 13. In this case, P.W. 5 Jagat Singh and P.W. 6 Ram Rup Singh are the injured persons. They were medically examined by Dr. N.D. Pande, who have categorically stated that these injuries could be caused by the blunt object. The injured witnesses as well as the doctor were cross-examined at length but nothing could be brought on record, which may suggest that their testimony is liable to be disbelieved. 14. P.W. 6 – Ram Rup Singh has also corroborated the version of P.W. 5 Jagat Singh. The accused/appellant was arrested at the spot along with Danda in his hand. The oral testimony in this case finds corroboration with the medical evidence. 15. I do not find any infirmity in the prosecution case. The accused/appellant has been rightly convicted under Section 323 I.P.C. As far as the sentence awarded to the accused/appellant is concerned, the trial court awarded a sentence of four months rigorous imprisonment to the accused/appellant. The incident in this case occurred on 02.07.1985 at about 12 noon. The record shows that the accused/appellant had been in custody for about 6 days during the course of the trail. The appellant is also in jail during the pendency of the appeal since 7th July, 2006. 16. Keeping in view the aforesaid circumstances of the case as well as this fact that the occurrence took place about 21 years ago, I take a lenient view and direct that the sentence of period already undergone by the appellant would be sufficient to meet the ends of justice. 17. The appeal is partly allowed, the conviction recorded by the trail court by way of the impugned judgment and order dated 13.11.1987 is maintained. However, the sentence is awarded to the accused/appellant for a period already undergone by him. The accused/appellant shall be released forthwith in case, if he is not wanted in any other case. (B.C. Kandpal, J.) 28.08.2006 ASWAL