IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 385 of 2001 Old Number Criminal Appeal No. 1629 of 1997 1. Nathu Singh, son of Suleman. 2. Om Prakash son of Nathu Singh. Both residents of village Vaghelawala, P.S. Kashipur, District – Udham Singh Nagar. …..…Appellants. Versus State of U.P. (Now State of Uttarakhand) …...…Respondent. Present : Mr. B.S. Parihar, learned counsel for the appellants. Mr. K.S. Bora, learned AGA for State / respondent. Hon’ble Nirmal Yadav, J. This appeal is preferred by accused appellants Nathu Singh and Om Prakash against the judgment and order dated 11.09.1997 passed by Special Additional Sessions Judge, Nainital (Camp Kashipur) in sessions trial no. 95 of 1994, convicting both the appellants for offences punishable under section 307 read with section 34 of Indian Penal Code (hereinafter referred to as “IPC”) and sentencing each of them to undergo five years rigorous imprisonment. The criminal law was set in motion on the written complaint (exhibit Ka-1) submitted by PW1 Harlal Singh, father of injured Ram Gopal on 14.02.1993 to Incharge, police station Kashipur stating therein that on 14.02.1993 at about 07.30 p.m. his son Ram Gopal was returning home from his work. He 2 had reached about one kilometers from village Mahua Kheda near the field of Fakiri Singh some unknown assailants persons caused injuries to him. PW3 Nand Kishore brought injured Ram Gopal to his house and accordingly informed his father Harlal Singh. Complainant Harlal got scribed the report from one Adarsh Kumar. On the basis of written complaint (exhibit Ka-1) chick FIR (exhibit Ka-4) was recorded in police station Kashipur on 14.02.1993 at 09.20 p.m under section 324 IPC. Injured Ram Gopal was removed to the LD Bhatt Hospital, Kashipur where he was examined by Dr. Surendra Singh, who prepared the injury report (exhibit Ka-3) and found “two stab wounds and two incised wounds on the front and back side of chest” on the person of Ram Gopal. The injuries were opined to be dangerous to life. The detailed examination could not be done due to serious condition of the patient. Initially, the investigation was undertaken by PW4 SI Abdul Sattar. He recorded the statement of Harlal Singh and prepared site plan (exhibit Ka-2). After opinion of the doctor that injuries on the person of Ram Gopal were dangerous to life, the case was converted under section 307 IPC against unknown person. Thereafter, investigation was handed over to PW6 SI Pooran Chandra Pandey, as SI Adbul Sattar proceeded for training. SI Pooran Chandra Pandey, recorded the statement of Ram Gopal and other witnesses and arrested accused persons. On the 3 completion of the investigation, chargesheet was submitted on 30.03.1993 by PW6 SI Pooran Chandra Pandey. On the basis of evidence on record accused were charged under section 307 read with section 34 IPC to which they pleaded not guilty and claimed to be tried. The prosecution in order to prove its case examined as many as six witnesses. PW1 Harlal, complainant; PW2 Ram Gopal the injured witness; PW3 Nand Kishore; PW4 SI Abdul Sattar, Investigating Officer; PW5 Dr. Surendra Singh and PW6 SI Pooran Chandra Pandey, Investigating Officer, who completed the investigation. Accused Nathu Singh appeared as DW 1 in his defence. CW1 Dr. Yogesh Sharma was examined as court witness. Accused when examined under section 313 Cr.P.C. denied the incriminating evidence put to him by the prosecution and pleaded false implication. Before proceedings further, we think it just and proper to reproduce the injuries suffered by injured Ram Gopal. Dr. Surendra Singh, L.D. Bhatt Hospital, Kashipur examined the injured Ram Gopal on 14.02.1993 at 10.05 p.m. and found the following injuries: “i. Stab wound 4 cm. X 1 cm. depth could not be measured on the left side of chest, viscera was protruding out from the injury. 4 ii. Stab wound 3 cm X 1 cm depth could not be measured on the left side of the back side of the chest 8 cm away back of middle of chest, viscera coming protruding out. iii. Incised wound 2 cm. X 0.5 cm. depth could not be measured 5 cm. lower and medial to injury no. 2. iv. Incised wound 1.5 cm. X 0.5 cm. into muscle deep on the back side of left side of chest upper portion 7 cm. away from middle of chest.” As per the opinion of the doctor, injuries on the person of injured, were dangerous to life. CW1 Dr. Yogesh Sharma, City Hospital, Kashipur examined and operated Ram Gopal on 14.02.1993 at 11.50 p.m. and found following pre operative injuries: “i. Abdominal cavity full of blood. Spleen found torn on its lateral surface and bleeding profusely. Lower part of diaphragm was torn just above the tear of spleen and air was coming through left side of the chest cavity. ii. Left lung has collapsed and omentum, passing through diaphragmatic tear, reached the left chest cavity. Spleen, flexure of colon were badly contused.” Ante Mortem Injuries “i. Incised wound 1.5 inch X 2 to 3 cm. on left side of chest of ante auxiliary line overlying 9th enter coastal space obliquely placed. ii. Incised wound situated over 11th inter coastal space approximately 4 inch lateral to vertebral column. Oblique and tapering towards upper angle of scapula 1 ½ inch X 2 to 3 cm. 5 iii. Incised wound situated just below 12th rib approximately 3 inch and middle of the scapula region 1.5 inch X 2 to 3 cm X muscle deep. iv. Incised wound situated over upper border of scapula 4 inch from vertebral column obliquely placed 1 ½ inch X 2 to 3 cm X bone deep. v. Lacerated wound overlying 8th inter coastal space 2 inch X 1 inch X muscle deep. vi. Lacerated wound overlying 9th inter coastal space on right side of back 1 inch X ½ inch X muscle deep. vii. Two lacerated wounds 1 cm X 1 cm. on the right side of back. viii. Abrasion 1 cm X 2 cm on the back side 1 inch from vertebral column. ix. Abrasion ½ inch X ¼ inch X muscle deep on the right side of the chest just 1 inch lying on the scapula region. x. Abrasion ½ inch X ¼ inch X muscle deep lying on the scapula region. xi. Abrasion 1 inch X ½ inch over lateral border of the scapula. xii. Abrasion ½ inch X ¼ inch over inter vertebral space on the middle of back. xiii. Multiple abrasions overlying right elbow. xiv. Just in the middle biceps, oblique cut, tapering towards right shoulder ½ inch X 2 to 3 cm. X muscle deep on right biceps.” As per opinion of Dr. Yogesh Sharma, injury no. 1 and 2 were dangerous to life and were caused by sharp object. Injury no. 3, 4 and 14 were grievous and caused by sharp object. Injury no. 5, 6, 7, 9, 10 and 13 were simple in nature and caused by blunt object. Injury no. 8 was simple in nature and caused by some sharp object. 6 The prosecution case mainly rests on the testimony of complainant Harlal Singh and the injured witness Ram Gopal. According to Harlal Singh, his son Ram Gopal had received injuries at 07.30 p.m. 14.02.1993 and he was brought by PW3 Nand Kishore to his house. Thereafter, he went to the police station but was advised by the police to remove the injured to hospital first. Therefore, after admitting his son in the hospital, he went to the police station and reported the matter to the police. He further stated that his son remained in hospital for about 18 days. In the cross examination he admitted that Ram Kali, wife of accused Nathu Singh, had filed a complaint against him. A perusal of the record shows that a complaint under section 323, 324, 504, 506 IPC was filed by Ram Kali against Harlal Singh complainant which of course is prior to the present occurrence. This witness categorically admitted that his son had disclosed the names of the accused after 6-7 days of occurrence, when he regained consciousness. PW2 Ram Gopal categorically stated that while he was returning home from his work at about 07.30 p.m. on 14.02.1993, he was accosted by Nathu Singh, Om Prakash appellants along with two other person whom he could not recognize. Both the accused caught hold of him and caused knife injuries on his person. After receiving injuries he became unconscious and fell down in the field of Fakiri Singh. He regained consciousness after 6 – 7 days. PW3 Nand Kishore is a formal witness, who stated that he saw 7 Ram Gopal lying near the field of Fakiri Singh in an unconscious condition. He was having injuries, caused by sharp edged weapon on his person and he brought him to his house. There is nothing on record to disbelieve the testimony of PW2 Ram Gopal. He categorically stated that he had no enmity or grudge against the accused persons. He has clearly stated that he recognized the accused persons as they were at a distance of one or two paces from him when they caused injuries. He further stated that they are neighbours, the house of the accused and complainant are lying opposite to each other. According to him, on the day of incident, there was moon light and he had clearly recognized both Nathu Singh and Om Prakash accused, however, he could not identify the other two assailants, who had caused injuries with the help dandas. Injured Ram Gopal was cross examined at length but nothing could be elicited to impeach his testimony. Learned counsel for the appellant argued that accused appellants have been falsely implicated on account of enmity. This argument cannot be accepted, as the injured would not like to spare the real culprits and falsely implicate the accused simply because wife of accused Nathu Singh had filed a complaint under section 323, 324, 504, 506 IPC against his father. In case, the complainant wanted to falsely implicate the accused he would have mentioned their names in the 8 FIR, rather than stating therein that injuries were caused to his son by some unknown persons. Learned counsel for the appellants argued that there was no source of light which is clear from the site plan (exhibit Ka-2) and it has also been admitted by PW2 Ram Gopal, therefore, it may be possible that assailants were some other persons and injured could not identify them. This argument is also without any force as Ram Gopal has categorically stated that accused are his neighbours and he had identified them as they were at a distance of one or two paces from him. According to him, it was moonlight night. The testimony of PW2 Ram Gopal is fully corroborated by medical evidence. CW1 Dr. Yogesh Sharma has found as many as 14 injuries on the person of Ram Gopal. Injury no. 1 to 4, 8 and 14 stated to be caused by sharp edged object whereas other injuries have been caused by blunt object. PW2 Ram Gopal has clearly stated that both the appellants Nathu Singh and Om Prakash caused injuries with knives while their other two accomplices caused injuries to him with dandas. Learned counsel for the appellants argued that there is no other corroboration to the testimony of Ram Gopal (injured witness) and therefore, it cannot be relied without corroboration of any independent witness. The argument is without any force. It is well settled principle of law that if evidence of the sole witness is credible and trustworthy, there is no 9 requirement in law to insist on plurality of witnesses, as the court has to see the pith and substance of the evidence. In the present case the testimony of the injured witness is quite credible and trustworthy. Learned counsel for the appellant argued that only injury nos. 1 to 4 alleged to have been caused by the appellants. According to him, these injuries were not sufficient to cause death in ordinary course of nature. Even from the facts on record, the intention or knowledge of the appellant of causing death cannot be inferred and in the absence of intention and knowledge which are necessary ingredients of section 307 IPC offence of attempt to murder can be made out. He thus, argued that at the most offence would fall under section 326 IPC and not under section 307 IPC and therefore, a lenient view be taken. The argument is not acceptable in view of the seriousness of the injuries. Both Dr. Surendra Singh as well as Dr. Yogesh Sharma have clearly stated that injury no. 1 and 2 were dangerous to life. As per injury report (exhibit Ka-8) there were as many as 14 injuries on the person of Ram Gopal and he remained in hospital for 18 days. For the reasons as discussed above, this court is of firm opinion that prosecution has been successfully able to prove its case beyond reasonable doubt. I do not find any merit in the appeal and the same is dismissed. Conviction and sentence recorded by the trial court against the accused appellants Nathu Singh and Om Prakash in connection with offence 10 punishable under section 307 read with section 34 IPC is hereby affirmed. Accused Nathu Singh and Om Prakash are on bail. Their bail bonds are cancelled and their sureties are discharged. Accused appellants shall be taken into custody to serve out the sentence as awarded by trial Court. The court below is directed to ensure the compliance of the order. Let the lower court record be sent back. (Nirmal Yadav, J.) 27.10.2010 SKS