RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.786 OF 2001 (Old No.2336/1991) Jaspal S/o Sunder Singh R/o Village Silgaon Patti, Jakhal Bhardwar, P.S. Jakhal, District Tehri ……… Appellant Versus The State ……… Respondent Dated: October 13, 2008 Sri M.A. Khan, learned counsel for the appellant Sri Tanuj Semwal, learned AGA for the State HON. DHARAM VEER, J. This criminal appeal, preferred under section 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 15.11.1991 passed by Sessions Judge, Tehri in Sessions Trial No.21/1990, State Vs. Jaspal, whereby the learned Sessions Judge has convicted the appellant/accused-Jaspal under Sections 452/324 of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced him to six months’ rigorous imprisonment each under Sections 452 IPC and 324 IPC. Both the sentences were directed to run concurrently. 2. I have heard Sri M.A. Khan, learned counsel for the appellant and Sri Tanuj Semwal, learned AGA for the State and perused the entire material available on record. 3. In brief, the prosecution case is that complainant Sher Singh (P.W.1) lodged a complaint before Munsif Magistrate Tehri, Tehri Garhwal stating therein that he was 2 having a fair price shop in village Silgaon, Methuakhal and nearby his shop, the shop and flourmill of appellant/accused Jaspal was also there. On 4.9.1989 at about 7:30 P.M. he was sitting in his shop and Shyam Singh, Udai Singh, Mohan Singh and Sadar Singh were also sitting there. In the meanwhile, appellant/accused Jaspal came in his shop and started hurling filthy abuses on him and also asked him (complainant) that why he accused him for having illicit relations with wife of Chetu. The complainant told him that he had not accused him. However, the appellant/accused was not satisfied with this explanation given by the complainant and threatened him to his life. On this, the persons sitting in the shop intervened in between and thereafter appellant/accused had gone from there after threatening the complainant to his life. The complainant, due to threat, closed his shop and sat in the nearby shop of Vijay Singh. After a short while, appellant/accused came and entered into the shop of Vijay Singh (P.W.2) being armed with a THAMALA (a sickle) and with the intention to kill the complainant Sher Singh, appellant/accused Jaspal caused injuries with the said THAMALA to the complainant Sher Singh due to which blood started oozing out. After causing the injury, appellant/accused ran away and he was identified by him (Sher Singh P.W.1) and Vijay Singh (P.W.2), who also witnessed the incident. After that injured Sher Singh was taken to a Compounder, who on seeing the critical condition of injured Sher Singh, referred him to another doctor. Thereafter, the complainant Sher Singh went to the Patwari Jakhal but the Patwari Jakhal asked him to get medical treatment first and also told him that thereafter he would register the case. Subsequently, in the night he was taken to Rudraprayag Hospital and he reached there on 5.9.1989 at 6:00 A.M. where he was medically examined 3 and treated by the doctor. After that he came to Tehri but since he reached Tehri about 3:00 P.M., therefore, on that day he could not file a complaint. On the next day i.e. on 6.9.1989, he filed a complaint in the court of Munsif Magistrate, Tehri, i.e. Ex.Ka-1. On that complaint, Munsif Magistrate, Tehri passed an order for registration and investigation of the case and report was directed to be submitted within 15 days. On the basis of this order, Patwari (P.W.5) Pareshwar Prasad Joshi prepared the Chik FIR on 6/7.9.1989 at 5:00 A.M., i.e. Ex.Ka-4. (In Rural Hilly Areas of State of Uttarakhand, the Patwaris and certain Revenue Officials are being vested with police powers vide U.P. Govt. Notification No.494/VIII-418-16 dated 7.3.1916). The necessary entry was also made in the G.D., the copy of G.D. is Ex.Ka-5. The injured Sher Singh (P.W.1) was medically examined by P.W.4 Dr. Umesh Prasad Gupta on 5.9.1986 at 6:00 A.M., the medical report of injured Sher Singh is Ex.Ka-3. During the course of investigation, the I.O./Patwari inspected the place of occurrence and prepared the site plan, i.e. Ex.Ka.6. Later on, the investigation was transferred on 16.9.1989 to P.W.3 Dhanpal Lal, Patwari, who after completing the investigation, filed the charge sheet against the appellant/ accused, i.e. Ex.Ka-2. 4. After receiving the charge sheet, the Munsif Magistrate, Tehri, Tehri Garhwal has committed the case to the court of Sessions on 25.10.1990 after giving necessary copies to the appellant/accused as provided under Section 207 Cr.P.C. 5. Learned Sessions Judge, Tehri Garhwal has framed the charge on 5.12.1990 against the appellant/accused Jaspal u/Ss 452/307 IPC. The charge 4 was read over and explained to appellant/accused, who pleaded not guilty and claimed to be tried. 6. To prove its case, the prosecution has examined P.W.1 Sher Singh, complainant and injured eyewitness, P.W.2 Vijay Singh, eyewitness, P.W.3 Dhanpat Lal, Patwari/I.O. of the case, P.W.4 Dr. Umesh Prasad Gupta, who had medically examined the injured Sher Singh and P.W.5 Pareshwar Prasad Joshi, also a Patwari/I.O. of the case. 7. After that the statement of the appellant/ accused Jaspal was recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to him in question form, who denied the allegations made against him and stated that he has been falsely implicated due to enmity. However, in defence, he had not produced any oral or documentary evidence. 8. After hearing learned counsel for the parties and appreciating the entire material available on record, the learned Sessions Judge, Tehri vide his judgment and order dated 15.11.1991 convicted and sentenced the appellant/ accused as discussed above. Feeling aggrieved by the aforesaid judgment and order, the accused/appellant has preferred the present appeal. 9. Before further discussion, it is pertinent to mention that injured P.W.1 Sher Singh was medically examined on 5.9.1989 at 6:00 A.M. by P.W.4 Dr. Umesh Prasad Gupta and his injury report was also prepared, i.e. Ex.Ka-3 and the following injury were found in his body: - “A sharp cut injury on anterior-lateral side of right arm, 17 cm long, 5 cm wide and 5.5 cm deep (Bone Deep), 14 cm above the right lateral epicondyle of 5 right humerus. The wound is curved (like part of a circle). Margins are sharp, biceps muscles are cut, bleeding present; shaft of humerus bone is visible. Opinion- Above injury is grievous caused by sharp weapon. Duration of injury was about 12 hours old.” 10. To prove the aforesaid injury report, the prosecution has examined P.W.4 Dr. Umesh Prasad Gupta who has stated that on 5.9.1989, he was posted as Medical Officer in Rudraprayag. On that day, injured Sher Singh was medically examined by him. He has recorded the injuries which have been quoted above and he also prepared and proved the injury report, i.e. Ex.Ka-3. 11. To further prove its case, the prosecution has examined P.W.1 Sher Singh, complainant and injured witness, who has stated that on 4.9.1989 at about 6:00 P.M., he was closing his shop in Methauakhal. At that time, Shyam Singh and Udai Singh arrived there and asked him for a matchbox and beedi. When he had gone inside to get those articles, then both of them also came inside the shop and sat there. In the meanwhile, appellant/accused Jaspal also came there and entered into the shop while hurling filthy abuses. When he enquired why he (Jaspal) was abusing, then appellant/accused told that why he has falsely accused him for having illicit relations with the wife of Chetu. He refused this allegation made against him and then appellant/accused Jaspal scuffled with him. Shyam Singh and Udai Singh intervened in between the matter. After that father of appellant/accused came who took him from there. Thereafter, he went in the shop of Vijay Singh which is adjacent to his shop. In the meanwhile, at about 7:30 P.M., appellant/accused Jaspal reached there and 6 starting abusing him and also began to scuffle with him. Vijay Singh (P.W.2) and Mohan Singh, who were in the shop, intervened in between the matter and took the appellant/accused from there. After 10 or 15 minutes, appellant/accused arrived there being armed with a THAMALA and caused injury to him in his right arm. This incident was witnessed by Vijay Singh (P.W.2). After that Vijay Singh took him to a Compounder at Methuakhala, who after seeing his serious condition, referred him to another doctor, as he was unable to treat him. Subsequently, he was taken to Jakhal where he reached at about 12:30 A.M. Patwari asked him to go for treatment and then to lodge the report. Then in the morning of 5.9.1989 at 5:30-6:00 A.M., he reached Rudraprayag where he was medically examined. Afterwards he reached at District Tehri at about 3:00 P.M., hence he could not lodge the complainant in the court on that day. On 6.9.1989, he lodged the complainant in the court of Munsif Magistrate and he also proved the same, i.e. Ex.Ka-1. The Magistrate also passed an order on this complaint on the basis of which the Patwari registered the case. This witness was cross-examined at length by the defence counsel but nothing has come out in his evidence which may create any doubt in his evidence. The evidence of this witness is reliable and believable. 12. P.W.2 is Vijay Singh, eyewitness of the case, who has also corroborated the evidence of P.W.1 Sher Singh. 13. P.W.3 is Patwari Dhanpat Lal, who has stated that on 16.6.1989, he took charge of Patwari Circle Jakhal. On 23.9.1989, he started investigation of this case. After completing the investigation, he filed the charge sheet, i.e. Ex.Ka-2. 7 14. P.W.5 is Patwari Pareshwar Prasad Joshi who has stated that on 7.9.1989, he was posted in Patwari Circle Jakhal. On receipt of the complainant, he prepared Chik FIR, i.e. Ex.Ka-4. The entry of the case was also made in the G.D., i.e. Ex.Ka-5. During the course of investigation, he recorded the statement of the witnesses, inspected the place of occurrence and prepared the site plan, i.e. Ex.Ka- 6. On 16.9.1989, he was transferred from that circle. 15. After that the statements of the appellant/ accused Jaspal was recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to him in question form, who denied the allegations made against him and in reply to question no.13, he has stated that Vijay Singh (P.W.2) was his tenant and he got that shop evicted from Vijay Singh. Vijay Singh and Sher Singh were friends and Vijay Singh got him falsely implicated in this case in collusion with Sher Singh. However, he did not produce any oral or documentary evidence in support of his case. 16. Sri M.A. Khan, learned counsel for the appellant/ accused argued that as per the evidence discussed above, the case against the appellant/accused is not proved by the prosecution beyond reasonable doubt. I do not find any force in this argument advanced by counsel for appellant/ accused as P.W.1 Sher Singh, who is the complainant and injured witness, has stated in his evidence that on 4.9.1989 at about 6:00 P.M., he was closing his shop in Methuakhal. At that time, Shyam Singh and Udai Singh arrived there and asked him for a matchbox and beedi. When he had gone inside to get those articles, then both of them also came inside the shop and sat there. In the meanwhile, appellant/accused Jaspal also came there and entered into the shop while hurling filthy abuses. When he enquired why he (Jaspal) was abusing then appellant/accused told that 8 why he has falsely accused him for having illicit relations with the wife of Chetu. He refused this allegation made against him and then appellant/accused Jaspal scuffled with him. Shyam Singh and Udai Singh intervened in between the matter. After that father of appellant/accused Jaspal came who took him from there. Thereafter, he went in the shop of Vijay Singh which is adjacent to his shop. In the meanwhile at about 7:30 P.M., appellant/accused Jaspal reached there and starting abusing him and also began to scuffle with him. Vijay Singh (P.W.2) and Mohan Singh, who were in the shop, intervened in between the matter and took the appellant/ accused from there. After 10 or minutes, appellant/ accused arrived there being armed with a THAMALA (a sickle) and caused injury to him in his right arm. This incident was witnessed by Vijay Singh (P.W.2). After that Vijay Singh took him to a Compounder at Methuakhala, who after seeing his serious condition, referred him to another doctor, as he was unable to treat him. Subsequently, he was taken to Jakhal were he reached at about 12:30 A.M. Patwari asked him to go for treatment and then to lodge the report. Then in the morning of 5.9.1989 at 5:30-6:00 A.M., he reached Rudraprayag where he was medically examined. Afterwards, he reached at District Tehri at about 3:00 P.M., hence he could not lodged the complainant in the court on that day. On 6.9.1989, he lodged the complainant in the court of Munsif Magistrate and he also proved the same, i.e. Ex.Ka-1. The Magistrate also passed an order on this complaint on the basis of which the Patwari registered the case. The evidence of this witness is reliable, believable and natural and his evidence is also in corroboration with the evidence of P.W.2 Vijay Singh, who is the eyewitness of the case. Besides this, the evidence of P.W.1 Sher Singh also gets support from the injury report 9 Ex.Ka-3 as well as from the medical evidence of P.W.4 Dr. Umesh Prasad Gupta who has stated that the injury on the person of injured Sher Singh was grievous and could be caused by sharp weapon. Thus, in this way the evidence of P.W.1 Sher Singh gets corroboration from the direct evidence of P.W.2 Vijay Singh and from the injury report Ex.Ka-3 as well as from the medical evidence of P.W.4 Dr. Umesh Prasad Gupta and the prosecution has proved its case beyond reasonable doubt against the appellant/accused under Sections 452 and 324 IPC. 17. In view of the aforesaid discussion, the prosecution has fully proved its case against the appellant/ accused beyond reasonable doubt under Sections 452 and 324 IPC and the trial court has rightly convicted and sentenced the appellant/accused Jaspal under the aforesaid sections and I concur with the view taken by the trial court in convicting and sentencing the appellant/accused under the aforesaid sections. 18. For the reasons recorded above, the appeal preferred by the appellant/accused Jaspal is devoid of merits and is accordingly dismissed. The judgment and order dated 15.11.1991 passed by Sessions Judge, Tehri in Sessions Trial No.21 of 1990, State Vs. Jaspal, is hereby affirmed. The appellant/accused Jaspal 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. 19. A copy of this order shall be sent forthwith to the trial court concerned for compliance of the order. (Dharam Veer, J.) October 13, 2008 Rajeev Dang