RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No.476 of 2001 (Old No.666 of 1995) 1. Ramu S/o Ram Singh 2. Dayaram S/o Prem Both R/o Jogia Mandi Mansa Devi Marg, Upper Road Haridwar, District Haridwar …….….…. Appellants Versus The State …………… Respondent Dated: May 18, 2009 Sri Bhuvnesh Joshi, Adv. i/b Mr. Vivek Shukla, Adv. for the appellant Sri M.A. Khan, brief holder for the State HON. DHARAM VEER, J. This appeal, preferred by the appellant 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 03.04.1995 passed by Sessions Judge, Haridwar in S.T. No.75 of 1991, State Vs. Ramu & another, whereby the learned Sessions Judge has convicted the appellant/accused Daya Ram under Section 324 of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced him to one years’ R.I. Appellant/accused Ramu was convicted u/s 324/34 IPC and was sentenced to R.I. for one year. 2. CJM, Haridwar vide his report dated 13.7.2007 has informed that appellant/accused Ramu has died on 29.6.2001. Hence, the appeal filed by appellant/accused Ramu stands abated. 3. I have heard Sri Bhuvnesh Joshi, Adv. i/b Sri Vivek Shukla, Adv. for the appellant/accused and Sri M.A. 2 Khan, learned brief holder for the State and perused the entire material available on record. 4. In brief, the prosecution case is that P.W.2 Vishnu Kumar has lodged an FIR at P.S. Haridwar on 24.9.1990 at 7:15 P.M. orally with the averments that his brother Naresh @ Nitu (P.W.1) was selling Prashad in the street of Ratan Talkies, then on the issue of selling Prashad, some hot talks arose between the appellants/ accused and Naresh @ Nitu. It was further averted in the FIR that at about 6:00 P.M. on the same day, appellant/ accused Ramu (now deceased) caught hold the hands of victim Naresh @ Nitu and appellant/accused Daya Ram, with the intention to kill, caused injuries to Naresh @ Nitu with a knife due to which he became seriously injured. After hearing the noise, Sunder (P.W.3) and other persons from the nearby locality, came on the spot so as to save Naresh @ Nitu (P.W.1). Then the complainant Vishnu (P.W.2) also came on the spot and witnessed the incident. Appellants/ accused had run away from the spot towards Ratan Cinema. With the same averments, the oral report was lodged by P.W.2 Vishnu Kumar and on the basis of his oral dictation, Chik FIR i.e. Ex.Ka-1 was prepared by Head Moharrir Bhanwar Singh. The entry was also made by him the G.D., the carbon copy of which is Ex.Ka-4. Injured Naresh @ Nitu was medically been examined by P.W.4 Dr. B.K. Chaudhary on 24.9.1990 at 6:45 P.M. and injury report Ex.Ka-2 was prepared. The investigation of this case was entrusted to S.I. K.S. Rupakha. The I.O. during the course of investigation inspected the place of occurrence and prepared the site plan, i.e. Ex.Ka-3. During the investigation, the I.O. recorded the statements of witnesses and after completing the investigation, he filed the charge 3 sheet in the court against the appellant/accused, i.e. Ex.Ka.5. 5. Learned Chief Judicial Magistrate, Haridwar appears to have committed the case to the court of Sessions on 25.02.1991 after giving necessary copies to the appellant/accused as provided under section 207 Cr.P.C. 6. On 01.05.1991, learned Sessions Judge, Haridwar framed the charge against the appellant/accused Daya Ram u/s 307 IPC. The charge was read over and explained to the appellant/accused who pleaded not guilty and claimed to be tried. The charge against the appellant/accused Ramu (now deceased) was also framed by learned Sessions Judge, Haridwar on the same day i.e. on 01.05.1991 u/s 307/34 IPC. The charge was also read over and explained to him who also pleaded not guilty and claimed to be tried. 7. To prove its case, the prosecution has examined P.W.1 Naresh Kumar, injured eyewitness, P.W.2 Vishnu, complainant and eyewitness, P.W.3 Sunder, eyewitness and P.W.4 Dr. B.K. Chaudhary, who has medically examined the injured. 8. Thereafter, the statements of the appellants/ accused were recorded u/s 313 of Cr.P.C. The oral and documentary evidence was put to each of them in question form, who denied the allegations made against each of them and stated that they have been falsely implicated. However, they did not produce any oral or documentary evidence in their defence. 9. After appreciating the evidence on record and hearing learned counsel for the parties, the learned 4 Sessions Judge, Haridwar vide judgment and order dated 03.04.1995 convicted and sentenced the appellants/ accused as discussed above. Against the aforesaid judgment and order, the appellants/accused have preferred the present appeal. 10. Before further discussion, it is pertinent to mention that injured Naresh @ Neetu (P.W.1) was medically examined on 24.09.1990 at 6:45 P.M. by P.W.4 Dr. B.K. Chaudhary and his medical report was also prepared i.e. Ex.Ka-2. The injuries recorded on the person of injured are as under: - “1. Incised wound 1.5 cm x 0.2 cm x muscle deep on left side forehead, just above medial end of left eyebrow 2. Incised wound 4.0 cm x 0.5 cm x muscle deep from left side nostril to left upper lip 3. Incised wound 1.5 cm x 1.0 cm x muscle deep left side of chest 7.0 cm above left nipple of 2 o’clock position with tailing present towards right side and downward. 4. Incised wound 4.5 cm x 1.5 cm x depth (U.O.) on left side chest 0.7 cm below left nipple tailing present towards outer side 5. Incised wound 1.5 cm x 0.5 cm x depth (U.O.) on left side chest 10.0 cm below injury no.4 6. Incised wound 2.0 cm x 0.7 cm x depth (U.O.) on middle of chest right side 8.0 cm below medial end right clavicle. GC – Low Pulse Low Volume Surgical emphysema present on both sides chest The injuries are fresh, patient kept under observation. Caused by sharp edged weapon” 11. To prove the aforesaid injury report, the prosecution has examined P.W.4 Dr. B.K. Chaudhary, who has stated that on 24.9.1990 at 6:45 P.M., he had medically examined the injured Neetu who was brought by his father. He had medically examined the injured and recorded the above-noted injuries at the time of medical 5 examination. He further stated that all the injuries were caused by a sharp edged weapon like knife. Injuries were fresh and could be caused at 6:00 P.M. on the same day. He also prepared the injury report i.e. Ex.Ka-2. 12. To further prove its case, the prosecution has examined P.W.1 Naresh Kumar, who has stated that appellants/accused were known to him. On the day of incident, he was selling Prashad in the Mansa Devi street and appellants/accused were also selling Prashad on the same street. At about 6:00 P.M., he was selling Prashad @Rs.4/- per packet and appellants/accused were selling Prashad @ Rs.3.50 per packet. On this issue, some hot talks arose between him and appellants/accused. He further stated that at about 6:00 P.M., appellants/accused Ramu had caught hold him and appellant/accused Daya Ram caused injuries to him with a knife. This incident was witnessed by his brother Vishnu (P.W.2) and Sunder (P.W.3) and other people of the locality who could manage to save him from the appellants/accused. Thereafter his father took him to the hospital where he was admitted. Subsequently he was referred to Meerut Medical College where he remained admitted for about 2½ months. He further stated that blood also oozed out from his wounds and his clothes also became blood stained. His blood stained clothes were taken in the Meerut Hospital. This witness was cross-examined at length by the defence counsel but nothing has come out in his statement which may create any doubt in his statement. The statement of this witness is reliable, natural and believable. 13. P.W.2 is Vishnu, who is the complainant and eyewitness of the case, has also corroborated the statement of P.W.1 Naresh Kumar. However, there are 6 some minor contradictions in the statements of P.W.1 Naresh and this witness, which are not material. 14. P.W.3 is Sunder who has not supported the prosecution case and was declared hostile. 15. Thereafter, the statements of the appellants/ accused were recorded u/s 313 of Cr.P.C. The oral and documentary evidence was put to each of them in question form, who denied the allegations made against each of them and stated that they have been falsely implicated. However, they did not produce any oral or documentary evidence in their defence. 16. Sri Bhuvnesh Joshi, Advocate i/b Mr. Vivek Shukla, Advocate for the appellants/accused argued that the prosecution has not proved its case against the appellant/accused Daya Ram beyond reasonable doubt. I do not find any force in this argument as P.W.1 Naresh Kumar, who is the injured eyewitness of the case, has stated that appellants/accused were known to him. On the day of incident, at about 6:00 P.M. in the street of Mansa Devi, he was selling Prashad @Rs.4/- per packet and appellants/accused were selling Prashad @ Rs.3.50 per packet. On this issue, some hot talks arose between him and appellants/accused. He further stated that at about 6:00 P.M., appellant/accused Ramu had caught hold him and appellant/accused Daya Ram caused injuries to him with a knife. This incident was witnessed by his brother Vishnu (P.W.2) and other people of the locality who could manage to save him from the appellants/accused. Thereafter his father took him to the hospital where he was admitted. Subsequently he was referred to Meerut Medical College where he remained admitted for about 2½ months. He further stated that blood also oozed out from his 7 wounds and his clothes also became blood stained. His blood stained clothes were taken in the Meerut Hospital. The evidence of this witness is reliable, natural and believable. Further, P.W.4 Dr. V.K. Chaudhary has stated in his evidence that all the injuries found on the person of injured Naresh @ Neetu were caused by a sharp edged weapon like knife. Injuries were fresh and could be caused at 6:00 P.M. on the same day. Thus, the medical evidence also supports the evidence of P.W.1 Naresh Kumar. Besides this, the statement of P.W.1 Naresh Kumar also gets corroborated from the oral evidence of P.W.2 Vishnu Kumar. Therefore, the prosecution has been successful in proving its case against the appellant/accused beyond reasonable doubt. 17. Learned counsel for the appellant/accused further argued that there are some contradictions in the statement of P.W.1 Naresh Kumar and P.W.2 Vishnu, which creates a doubt in the prosecution case. I again do not find any force in this argument as the contradictions, as pointed out by the counsel for the appellant/accused, are just some minor contradictions, which does not go to create any doubt in the prosecution case at all. 18. Thus, from the evidence discussed above, the prosecution has fully proved its case against the appellant/accused Daya Ram beyond reasonable doubt u/s 324 IPC and I concur the view taken by the trial court in convicting and sentencing the appellant/accused Daya Ram as discussed above. 19. For the reasons recorded above, the appeal preferred by appellant/accused Daya Ram is devoid of merits and is accordingly dismissed. The judgment and order dated 3.4.1995 passed by Sessions Judge, Haridwar 8 in S.T. No.75/91, State Vs. Ramu & another, in convicting and sentencing the appellant/accused Daya Ram u/s 324 IPC for one year’s R.I. is hereby affirmed. The appellant/accused Daya Ram is on bail. His bail is cancelled. Let him be taken into custody forthwith in order to serve out the sentence as awarded against him. 20. CJM, Haridwar vide his report dated 13.7.2007 has informed that appellant/accused Ramu has died on 29.6.2001. Hence, the appeal filed by appellant/accused Ramu stands abated. 21. Let a copy of this order be sent to the trial court concerned for compliance of the order forthwith. (Dharam Veer, J.) May 18, 2009 Rajeev Dang