IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.1420 OF 2001 (OLD NO.837/1996) Inder Singh and two others ……… Appellants Versus The State ……… Respondent Dated: June 03, 2009 Smt. Pushpa Joshi, learned counsel for the appellants Sri M.A. Khan, learned brief holder 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 14.5.1996 passed by Ist Additional Sessions Judge, Nainital in S.T. No.110/1993, State Vs. Inder Singh and others, by which the accused Jarnail Singh was convicted u/s 326 of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and was sentenced to five years’ rigorous imprisonment. Other accused persons, namely, Inder Singh and Hakam Singh were convicted u/s 326 r/w 34 I.P.C. and each of them were sentenced to five years’ R.I. 2. I have heard Smt. Pushpa Joshi, learned counsel for the accused/appellants as well as Sri M.A. Khan, learned brief holder for the State. Perused the entire material available on record. 3. C.J.M., Udham Singh Nagar vide letter dated 27.06.2005 has reported that the accused/appellant Inder Singh has died and C.J.M., Nainital vide letter dated 23.8.2005 has reported that the accused/appellant Hakam Singh has died. Hence, the appeal filed by the 2 accused/appellants Inder Singh and Hakam Singh stands abated. 4. In brief, the prosecution case is that the injured Bala Singh, later on who died, lodged the oral report at Police Station Sitarganj on 21.7.1991 stating therein that at about 11:00 A:M when he was going to work in his field and reached near the field of Mahendra Singh then on the way the accused Inder Singh, Jarnail Singh and Hakam Singh met him who asked him to leave his land and the village. When he did not agree then all the accused persons started beating him. The accused Jarnail Singh gave a blow of GANDASA on his head due to which he received serious injuries. He raised alarm. On hearing his alarm, Balwant Singh (P.W.1) and Arjun Singh (P.W.2) reached at the spot. Seeing the people coming, the accused persons fled from the place of occurrence. With the above-said averments, the injured Bala Singh lodged the oral report at Police Station Sitarganj on 21.7.1991 at 02:00 P:M. On the basis of oral report, Chik F.I.R. was prepared by the Head Mohirror Shankar Nath, which is Ext.Ka-4. The necessary entries were also made in the G.D., carbon copy of which is Ext.Ka-5. The investigation of this case was entrusted to Sub Inspector S.R. Chaudhary. The medical examination of the injured was done by Dr. Mahendra Singh (P.W.6), Medical Officer, P.H.C. Sitarganj on 21.7.1991 at 02:30 P:M and the medical report was prepared, which is Ext.Ka-2. Supplementary report (Ext.Ka-3) of the injured was also prepared by the same Medical Officer. During the course of investigation, the I.O. recorded the statement of the witnesses, prepared the site-plan (Ext.Ka-7) and took the blood stained clothes of the injured into possession and thereafter the FARD (Ext.Ka- 6) was prepared. On completion of the investigation, he 3 submitted the charge sheet against the accused/appellants Inder Singh and Jarnail Singh u/s 326/323 I.P.C. That charge sheet is Ext.Ka-8. On 21.9.1991, Inder Singh (P.W.4), father of the injured Bala Singh filed an application (Ext.Ka-1) at Police Station, Sitarganj with the information that when his son Bala Singh was being taken for further treatment to Punjab then on the way he died due to the injuries caused by the accused/appellants. On the basis of this information, the case was converted u/s 304 I.P.C. and the entry in this regard was also made in the G.D., carbon copy of that G.D. is Ext.Ka-9. Then, again the case was investigated and on completion of the investigation, the I.O. submitted the charge sheet (Ext.Ka-10) u/s 304 I.P.C. against the accused/appellant Hakam Singh and charge sheet (Ext.Ka-11) u/s 304 I.P.C against the accused/appellants Inder Singh and Jarnail Singh. 5. Learned Munsif Magistrate, Khatima on receipt of the charge sheet, committed the case to the Court of Sessions on 27.3.1993, after giving necessary copies to the accused/appellants as prescribed u/s 207 Cr.P.C. 6. It seems from record that the case was transferred to Ist Additional Sessions Judge, Nainital for hearing and disposal according to law. 7. On 29.4.1993, learned Ist Additional Sessions Judge, Nainital framed the charge of offence punishable under Sections 326 r/w 34 I.P.C. and 304 r/w 34 I.P.C. against the accused/appellants Inder Singh and Hakam Singh. Charges u/s 326 and 304 I.P.C. were framed against the accused/appellant Jarnail Singh. The charge was read over and explained to the accused/appellants who pleaded not guilty and claimed to be tried. 4 8. In order to prove its case, the prosecution has examined P.W.1 Balwant Singh, eyewitness; P.W.2 Arjun Singh, eyewitness; P.W.3 Smt. Ishwar Kaur, eyewitness; P.W.4 Inder Singh, father of the deceased; P.W.5 Mula Singh; P.W.6 Dr. Mahendra Singh, who medically examined the injured and P.W.7 Sub Inspector Shauki Ram Chaudhary, Investigating Officer of the case. 9. Thereafter the statement of the accused/appellants 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 allegation made against them. However, they did not produce any oral or documentary evidence in their defence. 10. After appreciating the entire evidence available on record and hearing learned counsel for the parties, learned Ist Additional Sessions Judge, Nainital vide his judgment and order dated 14.5.1996 convicted and sentenced the accused/appellants as stated above. Feeling aggrieved by the aforesaid judgment and order the accused/appellants preferred the present appeal. 11. Before further discussion, it is pertinent to mention the injuries found on the body of the injured Bala Singh, whose medical examination was done by P.W.6 Dr. Mahendra Singh, Medical Officer on 21.7.1991 at 02:30 P:M and the medical report (Ext.Ka-2) was prepared. The medical report of the injured is reproduced as under:- (i) 10 x 2 cm contusion over the left thigh on the anterior aspect, 12 cm above the left knee joint. (ii) 6 x 2 cm contusion over the left thigh of the anterior aspect, 6 cm above the left knee joint. 5 (iii) 7.5 x 1.25 x 2.5 cm incised wound over the left side of the skull, 8 cm above the left ear, antero-posterior direction, kept under observation, advised for X-ray of skull. Opinion:- Injury Nos.1 and 2 are caused by hard blunt object. Injury No.3 is caused by sharp edged object, kept under observation and advised for X-ray of skull. Nature of injury no.3 is serious. Duration:- Fresh 12. Supplementary report (Ext.Ka-3) of the injured was also prepared by Dr. Mahendra Singh (P.W.6), Medical Officer on 3.8.1991, which is reproduced as under:- (i) X-ray of skull was done at VPHC Kiccha on dated 22.7.1991 vide plate no.R108 shows no any bony lesion but the injury no.3 of skull is grievous. 13. To prove the above-noted medical and supplementary report, the prosecution has examined P.W.6 Dr. Mahendra Singh, who has stated that on 21.7.1991 he was posted as Medical Officer at P.H.C., Sitarganj. On that day at 02:30 P:M he medically examined the injured Bala Singh and found the above- noted injuries on his body. He has prepared the medical report (Ext.Ka-2) and the supplementary report (Ext.Ka- 3). He further stated that the injury nos.1 and 2 could be caused by hard blunt object like Lathi and injury no.3 could be possible by some sharp edged weapon like Gandasa. All the injuries were fresh and could be caused on 21.7.1991 at 11:00 A:M. He further stated that the 6 injury no.3 was grievous in nature and due to this injury death of the injured was possible. 14. Further to prove its case, the prosecution has examined P.W.1 Balwant Singh, who has stated there was land dispute between Bala Singh (deceased) and the accused/appellant Hakam Singh. The accused/appellant Jarnail Singh was working in the field and some ladies were also working there. Bala Singh came from his house and asked them not to plant paddy in his field. Then the accused/appellant Jarnail Singh threatened him for dire consequences. The accused Inder Singh asked to apprehend Bala Singh. Then the accused/appellant Jarnail Singh gave a blow of Gandasa on the head of Bala Singh and the accused/appellant Hakam Singh gave a blow of Lathi on the waist of Bala Singh. He further stated that he saw the incident and rushed towards the spot and asked the accused/appellant not to beat Bala Singh. Arjun Singh (P.W.2) also reached there after some time. Then the accused/appellants fled from the spot and the injured Bala Singh fell down on the earth. Bala Singh (deceased) was taken to the hospital. He did not go with him. He (Bala Singh) remained in the hospital for 12-13 days. He further stated that when Bala Singh was being taken to Delhi for further treatment he died on the way. He further stated that Bala Singh has died due to above injuries. After that the death information of Bala Singh was given in the police station. The police officials said for cremation of the dead body. This witness was cross- examined at length by the defence counsel but nothing has come out from his statement which may create any doubt in his statement. The statement of this witness is reliable, believable and inspires confidence. 7 15. P.W.2 Arjun Singh, who did not support the prosecution case and was declared hostile. 16. P.W.3 Smt. Ishwar Kaur is also the eyewitness of the case but the trial court did not believe on her statement. 17. P.W.4 Inder Singh is the father of the deceased. He has stated that he came to know about the said incident at Nanakmatta shop. Then he went at Sitarganj hospital where his son was hospitalized. His son remained there for 4-5 days. Then the doctor advised for treatment in some better hospital. While going towards Delhi his son died on the way. Thereafter he brought the dead body in Sitarganj and gave this information in the police station. He has proved the report (Ext.Ka-1). He further stated that Bala Singh has died to the injuries caused to him. This witness was cross-examined at length by the defence counsel but nothing has come out from his statement which may create any doubt in his statement. The statement of this witness is reliable, believable and inspires confidence. 18. P.W.5 Mula Singh, who has stated that the accused/appellants Jarnail Singh, Inder Singh and Hakam Singh had caused injuries to Bala Singh (deceased). Head injury was caused by the accused/appellant Jarnail Singh with Gandasa. Initially, they admitted the injured Bala Singh at Sitarganj Hospital but there he was not getting proper treatment. He further stated that the injured died on the way when he was being taken to Punjab. He further stated that the injured has died due to head injury which was caused by Gandasa. 8 19. P.W.7 Shuki Ram Chaudhary, who has stated that on 21.7.1991, he was posted as Sub Inspector at Police Station, Sitarganj. On that day, Bala Singh gave the oral report at Police Station Sitarganj. On the basis of this report, Chik F.I.R. (Ext.Ka-4) was prepared by Head Mohirror Shankar Nath and the necessary entries were also made in the G.D., carbon copy of which is Ext.Ka-5. FARD (Ext.Ka-6) of taking into possession the blood stained shirt and turban of the injured was also prepared by H.M. Shankar Nath. During the course of investigation, he recorded the statement of the witnesses and prepared the site-plan of the place of occurrence. That site-plan is Ext.Ka-7. After completing the investigation, he filed the charge sheet (Ext.Ka-8) against the accused/appellants Inder Singh and Jarnail Singh u/s 326/323 I.P.C. On 21.9.1991, Inder Singh, father of the injured Bala Singh lodged a report in the police station in which it was stated that while going for treatment to Punjab the injured died due to the injuries caused to him. After this the case was converted into Section 304 I.P.C. He has also proved the carbon copy of the G.D. (Ext.Ka-9). Thereafter he was transferred from the Sitarganj Police Station. S.I. Laxman Singh then submitted the charge sheet (Ext.Ka-10) u/s 304 I.P.C. against the accused/appellant Hakam Singh and S.I. Mewa Lal submitted the charge sheet (Ext.Ka-11) u/s 304 I.P.C. against the accused/appellants Inder Singh and Jarnail Singh. 20. Thereafter the statement of the accused/appellants 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 allegation made against them. However, they did not produce any oral or documentary evidence in their defence. 9 21. Learned counsel appearing on behalf of the accused/appellant has argued that the prosecution has not proved the case beyond reasonable doubt against the accused/appellant Jarnail Singh u/s 326 I.P.C. I do not find force in the argument raised by learned counsel for the accused/appellant as P.W.1 Balwant Singh, in his deposition, has stated there was land dispute between Bala Singh (deceased) and the accused/appellant Hakam Singh. On the day of incident, the accused/appellant Jarnail Singh was working in the field and some ladies were also working there. Meanwhile, Bala Singh came from his house and asked them not to plant paddy in his field. Then the accused/appellant Jarnail Singh threatened him for dire consequences. The accused Inder Singh asked to apprehend Bala Singh. Then accused/appellant Jarnail Singh gave a blow of gandasa on the head of Bala Singh and the accused/appellant Hakam Singh gave a blow of Lathi. It was further stated by him that he saw the incident and he rushed towards the spot and asked the accused/appellants not to beat Bala Singh. Then the accused/appellants fled from the spot and the injured Bala Singh fell down on the earth. Thereafter Bala Singh (deceased) was taken to the hospital where he remain admitted for 12-13 days. For further treatment when Bala Singh was being taken to Delhi then on the way he died. The statement of P.W.1 Balwant Singh gets corroboration from the statements of Inder Singh (P.W.4) and Mula Singh (P.W.5). Besides this, his statement is further corroborated from the statement of Dr. Mahendra Singh (P.W.6) who medically examined the injured on 21.7.1991 as well as from the injury report (Ext.Ka-2) and supplementary report (Ext.Ka-3). Thus, from the evidence discussed above, it is proved by the prosecution beyond reasonable doubt that on 21.7.1991 at about 11:00 A:M, accused/appellant Jarnail Singh, 10 along with two other caused grievous injury to Bala Singh by means of Gandasa and thereby committed an offence punishable u/s 326 I.P.C. 22. Learned counsel for the accused/appellant Jarnail Singh has further argued that the sentence of five years’ R.I., awarded by the trial court to the accused/appellant, is on the higher side. He further submitted that now the accused/appellant Jarnail Singh is 48 years’ old, he is living with his family and his family is entirely dependant upon him. He further submitted that the accused/appellant is facing the present case for the last more than 16 years in various courts and except this crime he has not committed any other crime before or after this incident. 23. After considering all the facts and circumstances, I think it just and proper that the sentence of three years’ R.I. would meet the ends of justice in this case. 24. For the aforementioned reasons, the appeal is partly allowed. The judgment and order dated 14.5.1996 passed by Ist Additional Sessions Judge, Nainital in S.T. No.110/1993, State Vs. Inder Singh and others, is confirmed as far as the conviction of the accused/appellant Jarnail Singh u/s 326 I.P.C. is concerned. However, the sentence of five years R.I. awarded by the trial court, is set aside. Instead, the accused/appellant is sentenced to undergo rigorous imprisonment for a period of three years. The appellant/accused Jarnail Singh is in bail. His bail bonds are cancelled. Let him be taken into custody forthwith in order to serve out the sentence. (As far as the appeal 11 against the accused/appellants Inder Singh and Hakam Singh is concerned, it stands abated due to their death). 25. A copy of this judgment shall be sent forthwith to the trial court concerned for compliance of the order. (Dharam Veer, J.) June 03, 2009 RG