HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal no. 455 of 2001 (Old no. 1947 of 1993) 1. Gajendra Singh S/o Vijay Singh, r/o Bhoobatwala Bagh near quarter waterworks, P.S. Ranipur, District Haridwar 2.Bittu @ Deepak Kumar S/o Pitamber, R/o Awas Vikas, Jwalapur, P.S. Jwalapur, District Haridwar. ------- Accused/appellants. Versus The State. ------- Respondent Sri Bhuwanesh Joshi, holding brief of Sri Vivek Shukla, learned counsel for the appellants. Sri Harish Pujari, learned Addl. Govt. Advocate for the State. Dated: July 21, 2008 Hon’ble Dharam 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 13.10.1993 passed by the Addl. District & Sessions Judge, Haridwar in Sessions Trial no. 381 of 1991 State vs. Gajendra Singh and another whereby the learned Addl. District & Sessions Judge has convicted the accused/appellants for the offence punishable u/s 324 read with Section 34 of The Indian Penal Code, 1860 (hereinafter referred to as the I.P.C.) and sentenced them to undergo 6 months’ rigorous imprisonment. 2. I have heard Sri Bhuwanesh Joshi, holding brief of Sri Vivek Shukla, learned counsel for the appellants and Sri Harish Pujari, learned Addl. Govt. Advocate for the State and perused the record of the Trial Court and entire material available on record. 3. The prosecution case, in brief, is that the complainant Ganga Prasad (PW-3) lodged a First Information Report at Police Station Ranipur, District Haridwar on 10.01.1990 at 11:50 a.m. with the averments that he was living with his family at Tibri and his younger brother Chandan Singh (injured) was engaged as tailor in the shop of the Mayur Tailors. It is averted that on 08.01.1990 at about 9:00 p.m. after completing his work his brother Chandan Singh was returning to his house riding on a bicycle and when he reached at the Forest Chowki Tibri the accused/appellants Gajendra Singh and Bittu alongwith their two companions had met him and they invited his brother to take a meal. As the accused/appellants were acquainted to his brother, therefore he went with them. They all took meal. Due to the old grudge with Chandan Singh, the accused Gajendra Singh asked to his companions to kill Chandan Singh and on his extortion, the accused/appellants Gajendra Singh and Bittu alongwith other assailants had attacked on Chandan Singh with intention to kill him with the knife causing injuries to him. Chandan Singh made screams, but his mouth was shut by the accused/appellant. Presuming it that Chandan Singh has died, the accused/ appellants alongwith their companions fled from the place of occurrence. The injured Chandan Singh was taken to the Hospital at Haridwar. It was further averted that there were 14 injuries on the person of the injured Chandan Singh and he was busy in the treatment of the injured Chandan Singh that is why he could not lodge the report in time. With the same averments Ganga Prasad PW-3 has lodged the First Information Report Ext. Ka-2. On the basis of the written report, the Head Moharir has prepared the Chik First Information Report Ext. Ka-6 on 10.01.1990 at 11:50 a.m. Entry was made in the General Diary, a copy of the G.D. is Ext. Ka-7. The injured Chandan Singh was medically examined by PW-5 Dr. O.P. Sharma, Medical Officer on 09.01.1990 at 8:00 a.m. at District Hospital, Haridwar, who prepared the medical report Ext. Ka-8 in this regard. Investigation of the case was entrusted to PW-4 Sub Inspector Udai Prasad Yadav. During the course of investigation, the Investigating Officer has taken in his possession the bloodstained clothes of the injured Chandan Singh and recovery memo Ext. Ka-1 was prepared. The I.O. has also taken in his possession the bloodstained stones, leaves and cement-encrust and recovery memo Ext. Ka-3 was prepared. The I.O. has also prepared the site-plan Ext. Ka-4 of the place of occurrence, after making spot inspection. During the course of investigation, the Investigating Officer has recorded the statement of the witnesses and after completion of the investigation he submitted charge sheet Ext. Ka-5 against the accused/ appellants u/s 307 I.P.C. 4. Learned Chief Judicial Magistrate, Haridwar on receipt of the charge sheet, after giving necessary copies to the accused persons as required u/s 207 Cr.P.C., committed the case to the Court of Sessions for trial on 03.10.1991 u/s 209 Cr.P.C. 5. Learned Addl. Sessions Judge, Haridwar after hearing the parties on 18.11.1991 framed the charge of offence punishable u/s 307 read with Section 34 I.P.C. against the accused/appellants Gajendra and Bittu @ Deepak. The charge was read over and explained to the accused persons who pleaded not guilty and claimed to be tried. 6. The prosecution, to prove its case, has examined PW-1 Chandan Singh-injured, PW-2 Ganeshi-witness of the recovery of bloodstained clothes, PW-3 Ganga Prasad- complainant, PW-4 S.I. Udai Prakash Yadav-Investigating Officer and PW-5 Dr. O.P. Sharma- Medical Officer who examined the injured Chandan Singh. 7. The oral and documentary evidence was put to the accused/appellants in the form of questions u/s 313 Cr.P.C. who, in reply, denied the allegations made against them and have stated that they have been falsely implicated in the case. The accused/appellants did not produce any oral or documentary evidence in their defence. 8. After appreciating all the evidence available on record and hearing the learned counsel for the parties, the learned Addl. Sessions Judge Haridwar vide his judgment and order dated 13.10.1993 has convicted the accused/appellants for the offence punishable u/s 324 read with Section 34 of the I.P.C. and sentenced them to undergo 6 months’ R.I. Aggrieved with the impugned judgment and order dated 13.10.1993, the present accused/appellants have come up in the instant Criminal Appeal. 9. Before further discussions, it is pertinent to mention the medical evidence available on the record. The injured Chandan Singh was medically examined by PW-5 Dr. O.P. Sharma, Medical Officer on 09.01.1990 at 8:00 a.m. at District Hospital, Haridwar, who prepared the medical report Ext. Ka- 8 in this regard. The injuries found on the person of the victim Chandan Singh are reproduced hereunder:- 1. Incised wound 1cm. x 0.5cm. x muscle deep on the right upper arm; 2. Incised wound 4cm. x 1cm. x muscle deep on the right lumber region, clotted blood present; 3. Incised wound 8cm. x 1.5cm. x muscle deep, 1cm. below injury no. 2; 4. Incised wound 6cm. x 2cm. x muscle deep on the right side in the lower portion; 5. Incised wound 2cm. x 0.5cm. x muscle deep, 1cm. below injury no.4; 6. Incised wound 2cm. x 1cm. x muscle deep on middle and back (lower part); 7. Incised wound 1cm. x 0.5cm. x muscle deep on left side, 1cm. back; 8. Incised wound 1.5cm. x 0.5cm. x muscle deep, on right hip joint; 9. Incised wound 3cm. x 1cm. x muscle deep on upper part of right gluteal region; 10. Incised wound 3cm. x 1cm. x muscle deep outer aspect upper part of right thigh; 11. Incised wound 4cm. x 2cm. x muscle deep on the right thigh, upper part back; 12. Incised wound 2cm. x 1cm. x muscle deep on the right middle of buttock; 13. Incised wound 3cm. x 1.5cm. x muscle deep, near anus; 14.Incised wound 3cm. x 1cm. x muscle deep on the left gluteal region. The Medical Officer has also opined that the injuries were simple in nature and caused by sharp object; duration about half of day. The patient was hospitalized and kept under observation for shock. 10. To prove its case, the prosecution, first of all, has examined PW-1 Chandan Singh-the injured, who has stated that on the date of incident at about 8:00 p.m. he was going to his house after closing the shop. When he reached near the Forest Chowki, he found four boys standing there. Out of the four, he identified the accused/appellant Gajendra Singh and Bittu, as they were known to him before the incident and rest two were not known to him. All the four assailants have taken him near the Pickle Factory and all of them had inflicted injuries to him with knife. He became unconscious and kept laying throughout the night. In the next morning he became conscious. One person was coming towards Lodha Mandi and he called him and riding on his bicycle he came to his house. He was taken to hospital where he was medically examined. Report of this incident was lodged by his brother Ganga Prasad at the Police Station. When the accused persons gave beating him, he made screams, but no body came to rescue him. After that he became unconscious. This witness has been cross examined by the defence counsel at length; but nothing has come out in his statement which may create doubt in his evidence. The evidence of this witness on each and every aspect is reliable, believable and trustworthy. 11. PW-2 is the witness Ganeshi, who has stated that he went to the hospital alongwith Radhey, Ganga Prasad and the Police Sub Inspector. The bloodstained clothes of the injured Chandan Singh were taken by the Sub Inspector of the Police. The clothes were sealed by the Investigating Officer on the spot and a FARD Ext.Ka-1 was prepared. He and the Radhey Shyam also made signatures on the FARD. One sealed bundle was opened in the Court and he identified the cloth Ext.-1, Kurta Ext.-2, Sweater Ext.-3, Underwear Ext.-4 and Pant Ext.- 5. 12. PW-3 is the witness Ganga Prasad-complainant, who has stated that the incident was said to have taken place in the intervening night of 8/9.01.1990. He was inside his house. Daughter of the injured Chandan Singh had told him that his father was beaten up. Some people had taken the injured to the hospital and he also reached to the hospital. The injured Chandan Singh was unconscious at that time. He met with the injured at the hospital. When Chandan Singh regained his sense, then he narrated the incident to him and told that the accused/appellant had caused injuries to him with knife. Thereafter he lodged the First Information Report of this incident in the Police Station, that report is Ext. Ka-2. 13. PW-4 is S.I. Udai Singh Yadav-Investigating Officer of the case, who has stated that on 10.01.1990 he was posted as Sub Inspector at Police Station Ranipur, Haridwar. Investigation of this case was entrusted to him by the Station House Officer of the police. He started investigating the crime on the same day. During the course of investigation, he recorded the statements of the witnesses. He also taken bloodstained clothes of the injured in his possession and a FARD Ext. Ka-1 was prepared in this regard. The recovered clothes are Ext. 1 to 5. The clothes were sealed on the spot. He also prepared the site-plan of the place of occurrence and has also taken in his possession the bloodstained stone, leaves and cement encrust from the place of occurrence and prepared a FARD Ext. Ka-3 in this regard. The stone is Ext.-6 & 7, encrust of cement of Ext.-8 and the leaves are Ext.-9. The site-plan which was prepared by him of the place of occurrence is Ext. Ka-4. After completion of investigation, he filed charge sheet against the accused/appellant. The charge sheet is Ext. Ka-5. 14. PW-5 is Dr. O.P. Sharma- Medical Officer, who has stated that on 09.01.1990 he was posted as Medical Officer at the District Hospital, Haridwar. On that day at 8:00 a.m. he examined medically the injured Chandan Singh and found the injuries mentioned in para-9 of the above on the person of the injured Chandan Singh. He further stated that all the injuries mentioned in para-9 of the above can be caused in the night of 8/9.01.1990. The injuries were sufficient to cause death. All the injuries were caused by the knife. He proved the medical report Ext. Ka-8. 15. The oral and documentary evidence was put to the accused/appellants in the form of questions u/s 313 Cr.P.C. who, in reply, have denied the allegations made against them and have stated that they have been falsely implicated in the case. The accused/appellants did not produce any oral or documentary evidence in their defence. 16. Learned counsel for the appellants has contended that as per the evidence produced by the prosecution, no offence punishable u/s 324 read with Section 34 I.P.C. is made out against the accused/appellants. But as per the evidence discussed above the injured witness PW-1 Chandan Singh has categorically stated that the accused/appellants alongwith their two other associates have caused injuries to him with knife and in this incident he received as many as 14 injuries. The said incident was said to have been taken place on 08.01.1990 at about 9:00 p.m. near Tibri Forest Chowki when Chandan Singh was going to his house riding in a bicycle after finishing his duty at a tailor’s shop. The statement of the injured witness PW-1 Chandan Singh is corroborated from the evidence of PW-3 Ganga Prasad. Evidence of PW-1 Chandan Singh is fully supported with the medical report Ext. Ka-8 and with the medical evidence as in this regard the prosecution has examined PW-5 Dr. O.P. Sharma, Medical Officer, who proved the medical report Ext. Ka-8. Recovery of the bloodstained clothes is also proved by the prosecution witness no.2 Ganeshi. Though PW-2 Ganeshi and PW-3 Ganga Prasad are the formal witnesses as they did not witness the incident, but their evidence corroborates the circumstances which took place afterwards as the injured Chandan Singh narrated the entire incident on the manner the incident had took place to PW-3 Ganga Prasad on the next day when the injured regained his sense and PW-3 Ganga Prasad had lodged the First Information Report at Police Station Ranipur on 10.01.1990 at 11:50 a.m. Evidence of PW-1 Chandan Singh-injured is quite convincing, natural and inspires confidence and there is no reason to disbelieve his testimony. The testimony of PW-1 Chandan Singh is fully corroborated with the other material and oral evidence adduced by the prosecution. The accuse/ appellants could not show as to what was the reason to implicate them falsely, leaving behind the real culprits. In the medical report Ext. Ka-8 the doctor PW-5 O.P. Sharma has opined that the injuries were simple in nature, accordingly, the learned Trial Court has convicted the accused/appellants for the offence punishable u/s 324 read with Section 34 I.P.C. and convicted them to undergo rigorous imprisonment for a period of 6 months’, which in the circumstances of the case is reasonable and justified. 17. From the above discussions it is proved beyond doubt that the accused/appellants on 08.01.1990 at 9:00 p.m. at Forest Chowki Tibri, within Police Circle Ranipur, District Haridwar alongwith their two associates had voluntarily caused hurt to Chandan Singh with knife. The accused persons have caused 14 injuries on his person and thereafter the accused persons have left the place of occurrence after presuming that Chandan Singh has died. In this way the prosecution has proved its case beyond reasonable doubt against the accused/appellants u/s 324 read with Section 34 I.P.C., and the Trial Court has rightly convicted them accordingly. The judgment and order dated 13.10.1993 passed by the learned Addl. Sessions Judge, Haridwar is justified and correct as per the evidence available on the record, which does not warrant interference at this stage and the appeal preferred by the appellants is liable to be dismissed. 18. Accordingly, the appeal preferred by the accused/ appellants Gajendra Singh and Bittu alias Deepak Kumar is hereby dismissed. The conviction and sentence awarded by the learned Addl. Sessions Judge, Haridwar to the accused/ appellants vide judgment and order dated 13.10.1993 for the offence punishable u/s 324 read with Section 34 I.P.C., is hereby affirmed. The accused/ appellants are on bail; their bail-bonds are hereby cancelled. 19. Let a copy of this judgment, alongwith the record of the Court below, be sent back to the Trial Court to make accused/appellants to serve out the sentence awarded to them. NCM: (Dharam Veer, J.) 21.07.2008