HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 794 of 2001 (Old No. 1254 of 1991) 1. Bhawan Singh S/o Sher Singh 2. Smt. Tulsi Devi W/o Bhawan Singh Both resident of Village Suran (Kanalichina), P.S. Askot, District Pithoragarh. ------- Accused/appellants Versus The State. ------- Respondent Dated: October 13, 2008 Sri H.C. Pathak, learned counsel for the appellants Sri Tanuj Semwal, learned A.G.A. for the State Smt. Pushpa Joshi, Advocate and Sri Amit Kapri, learned counsel for the complainant Hon’ble Dharam Veer, J. This appeal preferred 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 03.07.1991 passed by Sessions Judge, Pithoragarh in Sessions Trial No.12/1990, State Vs. Bhawan Singh and another, whereby the learned Sessions Judge has convicted the accused/appellants for the offence punishable u/s 307 read with Section 34 of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced each of the accused/appellants, namely, Bhawan Singh and Smt. Tulsi Devi to undergo rigorous imprisonment for a period of five years. 2. I have heard Sri H.C. Pathak, learned counsel for the accused/appellants, Sri Tanuj Semwal, learned A.G.A. for the State and Smt. Pushpa Joshi, Advocate and Sri Amit Kapri, learned counsel for the complainant. 3. The prosecution case, in brief, is that on 09.04.1990 at about 10 P.M. accused/appellant Bhawan 2 Singh was taking out stones from the wall of Bhim Singh and was throwing them away. When Bhim Singh (informant) heard the sound of throwing of the stones, he came out of his house and questioned his uncle Bhawan Singh as to why he is demolishing his wall. Accused/appellant Bhawan Singh took offence of it and spoke harshly to Bhim Singh. Immediately, the accused/appellant went inside his house and came out with a big sickle (BADIYAD) along with his wife Tulsi Devi. They attempted to assault Bhim Singh but he retreated by a few steps and started shouting. His shouts attracted his another uncle Ram Singh, his mother Mangla Devi, his wife Bhagirathi Devi and his daughter Shanti Devi. When they came to his rescue, then Bhawan Singh with a big SICKLE and Tulsi Devi with DANDA assaulted Ram Singh, Mangla Devi, Bhagirathi Devi and Shanti Devi. All the four sustained injuries. He has further averted that the accused/appellant Bhawan Singh is his uncle. Bhawan Singh (accused/appellant) and Narayan Singh, father of Bhim Singh (informant) were on inimical terms before the said incident. With the averments that the above said incident took place in Village Siroli, P.W.4 Bhim Singh lodged a First Information Report at Police Station Askot on 10.04.1990 at 7:10 A.M. That F.I.R. is Ext.Ka-5. On the basis of this F.I.R., Chik F.I.R., i.e., Ext.Ka-8 was prepared. The necessary entry was also made in the General Diary, carbon copy of which is Ext.Ka-9. The injured persons were medically examined by Dr. A.K. Sharma (Medical Officer) on 10.04.1990. The injury reports of Smt. Mangla Devi, Smt. Bhagirathi Devi, Ram Singh and Km. Shanti Devi are Ext.Ka-1, Ext.Ka-2, Ext.Ka-3 and Ext.Ka-4 respectively. Investigation of this case was entrusted to P.W.6 Sub Inspector, Saifuddin. During the course of the investigation, the Investigating Officer has taken the bloodstained stones 3 into his possession and prepared a FARD, i.e., Ext.Ka-6. The I.O. has also taken the weapons a big SICKLE and DANDA, which were used in the said incident and prepared a FARD, i.e., Ext.Ka-7. During the course of the investigation, the I.O. has prepared the site-plan of the place of occurrence, which is Ext.Ka-10. The Investigation Officer also recorded the statement of the witnesses and after completing the investigation he submitted the charge sheet, i.e., Ext. Ka-11 against the accused/appellants under Sections 308/324/326/323 I.P.C. 4. Learned Munsif Magistrate, Didihat committed the case to the Court of Sessions on 20.06.1990, after giving necessary copies to the accused/appellants as required u/s 207 Cr.P.C. 5. On 23.07.1990, the learned Sessions Judge, Pithoragarh framed the charge of offence punishable u/s 307 read with Section 34 I.P.C. against the accused persons Bhawan Singh and Tulsi Devi. The charge was read over and explained to the accused persons who pleaded not guilty and claimed to be tried. 6. In order to prove its case, the prosecution has examined P.W.1 Smt. Mangla Devi-injured eyewitness, P.W.2 Smt. Bhagirathi Devi-injured eyewitness, P.W.3 Ram Singh-injured eyewitness, P.W.4 Bhim Singh-eyewitness and the complainant of the case, who lodged the F.I.R., P.W.5 Bhawan Singh, witness of the recovery of bloodstained stones and weapons used in the said crime, P.W.6 Sub Inspector Saifuddin, Investigating Officer of the case and P.W.7 Dr. P.C. Pant-Private practitioner at Pithoragarh. 4 7. After that the statements of each of the accused/appellants were recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to each of them in question form, who have denied the allegations made against each of them. However in defence, they did not produce any oral or documentary evidence. 8. After appreciating all the evidence available on record and hearing the learned counsel for the parties, the learned Sessions Judge vide his impugned judgment and order dated 03.07.1991 convicted the accused/appellants for the offence punishable u/s 307 read with Section 34 I.P.C. and sentenced each of the accused/appellants, namely, Bhawan Singh and Smt. Tulsi Devi to undergo rigorous imprisonment for a period of five years. Aggrieved with the conviction and sentence awarded to them, the accused/appellants have preferred this appeal. 9. Before further discussion, it is pertinent to mention the injuries found on the body of the injured Mangla Devi, who was medically examined on 10.04.1990 at 2:40 P.M. by Dr. A.K. Sharma, Medical Officer. The injuries found on the body of the injured is reproduced as under:- (i) Punctured wound measuring 1.8cm (Both edge separated and muscle is exudating covered with black blood on outer side of left forearm (ii) Incised wound on medial side of left forearm measuring 1.5cm x 0.5cm x 0.2cm both edge separated (iii) Suspected fracture of left forearm (iv) Abrasion on left shoulder 1cm x 0.5cm Duration:- Approximate 15 hours 5 Opinion:- As injuries no.1 & 2 are simple, but injury no.3 is grievous, she is advised for X-Ray Left forearm AP and lateral views, kept for under observation. 10. Smt. Bhagirathi Devi (injured) was medically examined by Dr. A.K. Sharma, Medical Officer on 10.04.1990 at 3:20 P.M. The injuries found on the body of the injured is reproduced as under:- (i) Incised wound on parietal region measuring 8cm x 2cm x 0.2cm medially (near joint of both parietal bones) (ii) Incised wound on occipital region measuring 3.5cm x 0.5cm x 0.2cm in the middle (iii) Lacerated wound on four fingers of left hand. Blood oozing - Muscles laceration Duration:- Approximate 15-20 hours Opinion:- Injury no.1 & 2 are simple but injury no.3 is grievous as the muscle, nails and bones of four fingers are completely destroyed. 11. Ram Singh (injured) was medically examined by Dr. A.K. Sharma, Medical Officer on 10.04.1990 at 4:15 P.M. The injuries found on the body of the injured is reproduced as under:- (i) Incised wound on left temporal region extending upwards upto occipital region covered with Cutten Pinna except lobule of left ear measuring 14cm x 1cm x 0.5cm (bone is clearly visible) Duration:- Approximate 15-20 hours Opinion:- Above injury is grievous caused by a sharp object. 12. Km. Shanti Devi was medically examined by Dr. A.K. Sharma, Medical Officer on 10.4.1990 at 2:15 P.M. The 6 injuries found on the body of the injured is reproduced as under:- (i) Abrasion on front right shoulder 0.5mm x 1mm (ii) Incised wound (5.7cm x 1.5cm x 0.2mm) on right forearm below 8.5cm of elbow joint medially Duration:- 15-20 hours Opinion:- Injuries no.1 & 2, both are simple. Injuries caused by a sharp edged object. The genuineness of the injury report was admitted by the defence counsel, hence the injury report of Smt. Mangla Devi was proved as Ext.Ka-1, injury report of Smt. Bhagirathi Devi as Ext.Ka-2, injury report of Ram Singh as Ext.Ka-3 and the injury report of Km. Shanti Devi was proved as Ext.Ka-4. 13. Further to prove its case, the prosecution has examined P.W.1 Mangla Devi (the injured eyewitness of the case), who has stated that the accused/appellants were known to her. On the date of the incident at about 9-10 P.M., she was watching television in her house. Bhawan Singh threw the stones from her wall. When her son Bhim Singh heard the sound of throwing of the stones, he came out on the courtyard. After that, she (Mangla Devi), Bhagirathi Devi and Shanti Devi also came on the courtyard and asked Bhawan Singh that what is he doing. Bhawan Singh was armed with a big SICKLE and Tulsi Devi was armed with DANDA. Bhawan Singh tried to cause the injury to her son Bhim Singh, then in order to save Bhim Singh, Mangla Devi came forward. Thereafter, Bhawan Singh caused the injuries to Mangla Devi, Bhagirathi Devi and Shanti Devi and accused/appellant Tulsi Devi also caused the injuries to them with the weapons which both the accused/appellants were having in their hands. Thereafter, accused persons ran away from the place of 7 occurrence, but before that they also caused the injury to Ram Singh. After hearing the noise, village people came at the place of the occurrence. In the night, Ram Singh was taken to Kanalichina. She (Mangla Devi), Bhagirathi Devi and Shanti Devi also went to Kanalichina. There the doctor advised them to go to Pithoragarh as there was strike in the Kanalichina Hospital. Then all the injured persons went to Pithoragarh, where they were medically examined. She has also identified the big SICKLE by which Bhawan Singh has caused the injuries as Ext.1 and DANDA Ext.2 by which Tulsi Devi has caused the injuries. This witness was cross- examined at length by the defence counsel but nothing has come out from her evidence which may create any doubt in her evidence. The evidence of this witness is reliable, believable and trustworthy. The evidence of this witness gets corroboration from P.W.2 Smt. Bhagirathi Devi-injured eyewitness, P.W.3 Ram Singh-injured eyewitness and P.W.4 Bhim Singh-eyewitness and the complainant of the case, who has also proved the F.I.R. as Ext.Ka-5 lodged by him. 14. Learned counsel for the accused/appellants submitted that on the basis of the evidence discussed above and the injury reports and the nature of the injuries, the case u/s 325 r/w 34 I.P.C. is made out against the accused/appellants. I find substance in the argument advanced by learned counsel for the accused/appellants, as in the evidence of the witnesses, they have not stated that the accused/appellants have caused injuries to them with the intention or knowledge to kill them, and under such circumstances that, if the injured would die by these injuries then the accused/appellants would be guilty of murder. It is also submitted that the injuries are also not on the vital part. After considering the nature of the injuries and the oral evidence of the eyewitness and the injured 8 witnesses, the prosecution has proved the case against the accused/appellants beyond reasonable doubt u/s 325 r/w 34 I.P.C. 15. Learned counsel for the accused/appellants and the complainant have moved an application seeking permission for filing compromise and both the parties have moved a compromise application which are supported by the respective affidavits and signed by the complainant Bhim Singh and each of the injured persons, namely, Smt. Mangla Devi, Smt. Bhagirathi Devi, Smt. Shanti Devi and Ram Singh and also signed by each of the accused/appellants. Complainant Bhim Singh and the injured persons-Smt. Mangla Devi, Smt. Bhagirathi Devi, and Ram Singh are identified by Smt. Pushpa Joshi, Advocate and Smt. Shanti Devi is identified by Sri Amit Kapri, Advocate and the accused/appellants are identified by Sri H.C. Pathak, Advocate. Learned counsel for both the parties have submitted that the parties have entered into a compromise outside the Court and now no grudge is remained pertaining to the same dispute. According to the compromise both the parties are closely related to each other. The accused/appellants Bhawan Singh and Tulsi Devi (wife of Bhawan Singh) is the real uncle and aunty of the complainant Bhim Singh. Injured Mangla Devi is the sister-in-law (BHABHI) of the accused/appellant Bhawan Singh and another injured Bhagirathi Devi is the wife of Bhim Singh, as such she is daughter-in-law of the accused persons. Shanti Devi (injured) is the daughter of the complainant Bhim Singh. It is submitted that the appeal may be decided in terms of the compromise arrived at in between the parties. After considering all the facts and peculiar circumstances of the case that the injured persons and the accused/appellants are closely related to each 9 other, it is expedient in the interest of justice to allow the application seeking permission to file compromise and the case may be decided in terms of the compromise arrived at in between the parties. Thus the application seeking permission to file compromise is allowed. Accordingly the compromise is accepted. 16. The judgment and order dated 03.07.1991 passed by Sessions Judge, Pithoragarh in Sessions Trial No.12/1990, State Vs. Bhawan Singh and another, for convicting the accused/appellants Bhawan Singh and Tulsi Devi for the offence punishable u/s 307 read with Section 34 I.P.C. and sentencing each of them to five years’ R.I., is set aside instead the accused/appellants are convicted u/s 325 r/w 34 I.P.C. As the parties have entered into the compromise and the compromise filed by the parties is accepted, so on the basis of this, each of the accused/appellants is hereby acquitted of the charge punishable u/s 325 r/w Section 34 I.P.C. and accordingly the appeal is disposed of. 17. For the reasons recorded above, the appeal is disposed of. 18. Let a copy of this judgment along with the record of the trial court be sent back to the trial court concerned for compliance of the order forthwith. (Dharam Veer, J.) 13.10.2008 RG