IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Jail Appeal No. 268 of 2002 Vikka …………………..Appellant. Versus State ……………..Respondent. Ms. Krishi Shukla, Amicus Curiae, for the appellant. Sri Amit Bhatt, Additional Government Advocate for the State. Along with Criminal Jail Appeal No. 270 of 2002 Shankra …………………..Appellant. Versus State …..……………..Respondent. Ms. Krishi Shukla, Amicus Curiae, for the appellant. Sri Amit Bhatt, Additional Government Advocate for the State. Hon’ble Prafulla C. Pant, J. Hon’ble B.S. Verma, J. [Oral- Hon’ble Prafulla C. Pant, J.] These two appeals, preferred under Section 374 of Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), is directed against the same judgment and order dated 21.12.2001, passed by learned Sessions Judge, Tehri Garhwal, in Sessions Trial No. 1 of 2001, whereby accused / appellant 2 Shankra has been convicted under Section 302 and accused / appellant Vikka has been convicted under Section 302 read with Section 34 of Indian Penal Code, 1860 (hereinafter referred as I.P.C.). Each one of the convicts is sentenced to imprisonment for life and also directed to pay fine of Rs.2,000/-, in default of payment of which the defaulter is required to undergo simple imprisonment for a period of three months. (2) Heard learned counsel for the parties and perused the trial court’s record. (3) Prosecution story in brief is that on 02.11.2000, P.W.3 Smt. Tara Devi made a report to area Patwari Nainbagh, Patti Silwad-Jaunpur, Tehri Garhwal, that she was informed on 01.11.2000 at about 2.00 P.M. by Kundanu (P.W.2) and Shankra Singh (accused) that her husband Balbir Singh (deceased) is lying dead in a gorge. She further disclosed in her report (Ext.A-1), made to the Patwari, that earlier accused Vikka on 31.10.2000 had expressed his annoyance against the deceased Balbir on account of some dispute of money and he had threatened him to kill. She (Smt. Tara Devi) suspected that he (Vikka) might have his hand in the murder of her husband. (In interior hills of Uttarakhand revenue officials are given police powers under U.P. Government Notification No. 494/VIII- 418-16, dated 07.03.1916). On the basis of report of Tara Devi, the area Patwari registered Crime No. 5 of 2000, relating to offence punishable under Section 302 I.P.C. against accused / appellant Vikka. Sri Manendra Singh, Patwari, to whom the report was made, prepared Check Report (Ext.A-5) on the basis of report (Ext.A-1), and started the investigation of the case. 3 He took the dead body of the deceased in his possession and prepared Inquest Report. He also prepared other necessary papers and sample seal and got sent the dead body for postmortem examination in a sealed cover. P.W.5 Dr. Gyanendra Singh on 03.11.2000 conducted postmortem examination of the dead body and prepared Autopsy Report (Ext.A-4). In the opinion of the Medical Officer cause of death was coma due to ante mortem injuries No. 1 and 2 recorded in the Autopsy Report. The Investigating Officer interrogated the witnesses and got recorded the statements of P.W.1 Smt. Roshni (wife of the accused Vikka) and that of P.W.2 Kundanu, under Section 164 Cr.P.C. by P.W.4 Ghanshyam Singh, Sub Divisional Magistrate, Tehri. P.W.1 Roshni in her statement under Section 164 Cr.P.C. disclosed that she saw accused / appellant Shankra beating deceased (Balbir) and Vikka was standing there. In his statement under Section 164 Cr.P.C., P.W.2 Kundanu Lal told the Sub Divisional Magistrate that he saw Shankra beating Balbir. Both these witnesses have further disclosed that when Shankra was beating Balbir, Vikka was standing with him (Shankra). After completion of the investigation, the Investigating Officer P.W.6 Manendra Singh, Patwari, submitted Charge Sheet (Ext.A-9) against both the appellants, namely, Shankra and Vikka, for their trial relating to offence punishable under Section 302 I.P.C.. (4) The Magistrate, on receipt of the charge sheet, after giving necessary copies to the accused, as required under Section 207 of Cr.P.C., appears to have committed the case to the court of Sessions for trial. Learned Sessions Judge, after hearing the parties, framed charge of offence punishable under 4 Section 302 I.P.C. against the accused Shankra and one punishable under Section 302 read with Section 34 I.P.C. against accused Vikka, to which both of them pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W.1 Smt. Roshni (wife of accused Vikka, an eyewitness); P.W.2 Kundanu, an eyewitness; P.W.3 Smt. Tara Devi, complainant and widow of the deceased; P.W.4 Ghanshyam Singh, Sub Divisional Magistrate, Tehri; P.W.5 Dr. Gyanendra Singh, who conducted postmortem examination and P.W.6 Manendra Singh, Patwari, who investigated the crime. The Oral and documentary evidence was put to both the accused under Section 313 Cr.P.C., in reply to which they alleged the same to be false. However, they did not adduce any evidence in defence. After hearing the parties, the trial court found both the accused guilty of the charge framed against them and convicted them accordingly. After hearing the parties on sentence, the trial court vide impugned order sentenced each one of the convicts to imprisonment for life and also directed each one of them to pay fine of Rs.2,000/-, in default of payment of which, the defaulter was required to undergo further three months’ simple imprisonment. Aggrieved by said judgment and order dated 21.12.2001, passed by learned Sessions Judge, Tehri Garhwal, in Sessions Trial No. 1 of 2001, the appellants preferred these two appeals from jail through Superintendent, District Jail, Haridwar. (5) Before further discussions, we think it just and proper to mention the ante mortem injuries found on the body of the deceased by P.W.5 Dr. Gyanendra Singh, who prepared 5 Autopsy Report (Ext.A-4). The ante mortem injuries found on the body of the deceased are being reproduced as under:- (1) Lacerated wound 0.7cm x 0.5cm size x scalp deep on the left side head, 4.0cm above and behind the left ear, surrounded with contused swelling 5.0cm x 5.0cm size around it, on cutting the skin there was a haematoma under the injury mentioned, on opening the cranial cavity there was a subdural haematoma occupying the left side parietal and occipital region of cranial cavity. (2) Contused swelling 4.0cm x 4.0cm size on the right side parietal region of head, 5.0cm above the right ear, on cutting the skin there was a haematoma under the skin at the site of surlling, on opening the cranial cavity there was a subdural haematoma under the injury No. 2 in parietal region of head. (3) Contusion 6.0cm x 1.0cm size on the left side front chest lower part, just above the sub costal margin. 6 (4) Abrasion linear type 0.5cm in length present on the front, 4.0cm above the suprasternal notch. (5) Abrasion 5.0cm x 0.3cm on the dorsum of right hand. (6) Contusion 5.0cm x 2.5cm on the outer aspect of middle of right thighs. (7) Abrasion 1.5cm x 0.7cm size on the front of right leg, 8.0cm above the right ankle. The Medical Officer, after conducting postmortem examination opined that cause of death is coma as a result of ante mortem injuries No. 1 and 2 caused by blunt and hard object. From the above medical evidence, it is clearly established on record that Balbir Singh has died a homicidal death. (6) Now, this Court has to see whether the prosecution has proved that accused / appellants Shankra and Vikka has caused death of the deceased, if so whether the act committed by them amounts to murder or not. (7) P.W.3 Smt. Tara Devi is complainant of the incident, who is widow of the deceased. She is not an eyewitness. She simply says that she was told by accused Shankra and witness Kundanu (P.W.2) that her husband’s dead body is lying in a 7 gorge. This witness (P.W.3) further states that she made a report (Ext.A-1) to the Patwari of the area. (8) There are two eyewitnesses of the incident, namely, P.W.1 Smt. Roshni (wife of accused Vikka and sister-in-law of the accused Shankra) and P.W.2 Kundanu. P.W.1 Smt. Roshni has stated on oath that on the day of incident she saw her husband standing with accused / appellant Shankra. She further disclosed that accused / appellant Shankra was beating Balbir and in the process, he pushed Balbir, who fell down and his head struck with the stone. There is no reason to disbelieve this witness, who is wife of accused / appellant Vikka and sister-in-law of accused / appellant Shankra. Her statement gets corroboration from the statement of P.W.2 Kundanu, who also states that he witnessed Shankra beating Balbir, who fell on the ground and his head struck on a stone. This witness states that he got frightened and ran away from the place of incident. Why P.W.1 Smt. Roshni kept quiet relating to incident is also clear, as she was wife of the accused Vikka and sister-in- law of accused Shankra. Though, the name of Smt. Roshni (P.W.1) has not figured in the First Information Report (Ext.A- 1), but her testimony appears to be natural, as after the report was made to Patwari, she gave a statement to Sub Divisional Magistrate (P.W.4) Ghanshyam Singh under Section 164 Cr.P.C. relating to incident. The Sub Divisional Magistrate further recorded statement of P.W.2 Kundanu. His version after the incident was also same. The testimony of these two witnesses is natural and trustworthy and it is clearly established on record that Vikka, who threatened Balbir that he would kill him, had common intention with accused Shankra who gave beating to 8 Balbir, and pushed him due to which Balbir fell down in the gorge of a hilly terrain and his head struck on a stone. That being so, it is clearly proved by the prosecution beyond all reasonable doubt that the accused Shankra caused homicidal death of Balbir and accused Vikka had common intention with Shankra in commission of the offence. (9) However, from the statements of the witnesses, examined on behalf of the prosecution, it is clear that they were not armed with any weapon. The act on the part of Shankra with common intention with accused Vikka cannot be said to be an intended act in causing death of Balbir, as while beating, Shankra pushed Balbir, who fell down in a gorge and his head struck on a stone. This act on the part of the accused Shankra with common intention with Vikka does constitute culpable homicide not amounting to murder punishable in Part II of 304 I.P.C., and it cannot be said to be an offence of culpable homicide amounting to murder or culpable homicide not amounting to murder punishable under Part I. That being so, the conviction and sentence recorded by the trial court needs to be modified accordingly and both appeals deserve to be allowed partly. (10) Therefore, both the appeals are allowed partly. Conviction and sentence recorded by the trial court against appellants Shankra and Vikka are set aside. Accused / appellant Shankra is convicted under Section 304 Part II I.P.C. and accused / appellant Vikka is convicted under Section 304 Part II read with Section 34 I.P.C.. Each of the accused / appellant Shankra and accused / appellant Vikka is sentenced to rigorous 9 imprisonment for a period of seven years. They have already served out more than seven years in jail as the two were in jail not only during the trial but also during the period of these appeals. The Registry is directed to send the copy of this order to the Superintendent of the Jail concerned, who shall release the appellants, if they are not required in connection with any other crime. Lower Court Record be sent back to the trial court. (B.S. Verma, J.) (Prafulla C. Pant, J.) 26.03.2009 NS