IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 1417 of 2001 (Old No. 952 / 1996) 1. Daulat Singh (since deceased) S/o Sri Dhannoo 2. Govind S/o Sri Udal Singh both resident of Village Dhimer Kheda Ka-Majra, Police Station Kashipur, District Udham Singh Nagar. ...…………. Appellants (In Jail) Versus State of U.P. (Now State of Uttarakhand) ...…………. Respondent Ms. Krishi Shukla, Advocate, present for appellant No. 2. Mr. M.A. Khan, Brief Holder, present for respondent State. Hon’ble Prafulla C. Pant, J. This appeal, preferred under Section 374 of the Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), is directed against the judgment and order dated 22.05.1996, passed by II Addl. Sessions Judge, Nainital, in Sessions trial No. 308 of 1995, whereby said court has convicted appellant Daulat Singh and appellant Govind under Section 307 read with Section 34 of the Indian Penal Code, 1860 (hereinafter referred as I.P.C.), and each one of them has been sentenced to rigorous imprisonment for a period of three years. 2 2) Heard learned counsel for the parties and perused the lower court record. 3) Prosecution story, in brief, is that in the year 1994, Suresh S/o Dhan Singh, was murdered, and in that matter report was lodged by Dhan Singh (P.W. 1) against Ram Prasad. Accused / appellant No. 1 Daulat Singh (since deceased) was brother-in-law of Ram Prasad. After Ram Prasad was made accused in the murder case of Suresh, Daulat Singh started harbouring enmity against Dhan Singh. Due to said enmity on 31.03.1995, at about 03:00 P.M., in Village Dhimer Kheda Ka-Majra, police station Kashipur, accused / appellants Daulat Singh, Govind and two others, namely Sumer Singh and Vinod, allegedly armed with deadly weapons like TABAL (heavy sharp edged weapon), Sickle and DANDA (rod) surrounded Dhan Singh, and in an attempt to commit his murder caused injuries on his person. Said incident was witnessed by P.W. 2 Kedar Singh and P.W. 3 Surendra Singh. After assaulting Dhan Singh, the accused ran away. Soon after the incident, a first information report (Ext. A –1) was got lodged by P.W. 3 Surendra Singh at police station Kashipur, at 16:55 hours. On the basis of which check report (Ext. A –4) was prepared by the police, and the injured was sent for medical examination. P.W. 4 Dr. P.N. Tandon examined injuries on the person of Dhan Singh, and prepared injury report (Ext. A –2) at 05:15 P.M., on the very day i.e. 31.03.1995. 3 He found three incised wound and one stab wound on the person of the injured. P.W. 5 Dr. J.P. Joshi conducted X-ray, and prepared X-ray report (Ext. A – 3), and opined that the stab wound was a grievous injury. P.W. 6 Sub Inspector J.P. Naithani investigated the crime. After completion of investigation, he submitted charge sheet (Ext. A –7) against accused / appellants Daulat Singh, Govind and two others, namely Vinod and Sumer Singh, for their trial in respect of offences punishable under Section 324, 326, 307 of I.P.C. 4) The Addl. Chief Judicial Magistrate, Kashipur, on receipt of the charge sheet, after giving necessary copies to the accused, as required under Section 207 of Cr.P.C., committed the case to the court of sessions for trial. Learned II Addl. Sessions Judge, Nainital, to whom the case was transferred, on 05.09.1995, after hearing the parties, framed charge of offence punishable under Section 307 read with Section 34 of I.P.C. against all the four accused, namely Daulat Singh, Vinod, Sumer Singh and Govind. (Earlier Tehsil Kashipur was part of District Nainital). The accused pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1 Dhan Singh (injured); P.W. 2 Kedar Singh (eyewitness); P.W. 3 Surendra Singh (complainant and eyewitness); P.W. 4 Dr. P.N. Tandon; P.W. 5 Dr. J.P. Joshi and P.W. 6 Sub Inspector J.P. Naithani (who investigated the crime). 4 The oral and documentary evidence was put to the accused under Section 313 of Cr.P.C., in reply to which they alleged the same to be false. They further pleaded that they have been implicated due to enmity. However, no evidence was adduced on behalf of the defence. The trial court, after hearing the parties, found that no injury was shown to have been caused either by Vinod or Sumer Singh, as such, it cannot be said that charge as against them is proved beyond reasonable doubt. However, the trial court found accused / appellants Daulat Singh and Govind guilty of charge of offence punishable under Section 307 read with Section 34 of I.P.C. After hearing on sentence, each one of the convicts was sentenced to rigorous imprisonment for a period of three years. Aggrieved by said judgment and order dated 22.05.1996, passed by II Addl. Sessions Judge, Nainital, in Sessions Trial No. 308 of 1995, this appeal was filed by the two convicts Daulat Singh and Govind before the Allahabad High Court on 27.05.1996, where it was admitted on 28th of May 1996. The appeal is received by this Court by transfer under Section 35 of the U.P. Re-organization Act (Central Act No. 29 of 2000), for its disposal. 5) During pendency of this appeal, appellant No. 1 Daulat Singh, is reported to have died. Appeal as against him stands abated. This appeal is heard only on behalf of appellant No. 2 Govind. 5 6) Before further discussion, this Court thinks it just and proper to mention the injuries suffered by P.W. 1 Dhan Singh, which are recorded by P.W. 4 Dr. P.N. Tandon, in his report (Ext. A –2), on 31.03.1995, at about 05:15 P.M. The injuries are being reproduced, as under: i) Incised wound 4 cm X 1 cm on the back of right hand near the base of ring and little finger of right hand X tender deep. ii) Incised wound 5 cm X 1 cm on the lower 1/3 of the right forearm just above the ulna prominence of the arm X muscle deep. iii) Incised wound 3 cm X 1 cm X bone deep on occipital region prominence X right side of the skull. iv) Stab wound 6 cm X 3 cm X long deep, air coming out of the wound X right axilla lower part. Advised X-ray chest. All the injuries were found fresh and caused by sharp / pointed object. 7) P.W. 1 Dhan Singh narrating the prosecution story has stated on oath before the trial court that on the day of incident, at about 03:00 P.M., he was going from his village towards Kashipur. When he reached near brick kiln of Pritam Singh, he met accused / appellant Daulat Singh, armed with sickle; accused / appellant Govind, armed with TABAL (heavy sharp edged weapon) and 6 other two accused Sumer Singh, armed with TABAL, and Vinod, armed with DANDA (rod). It is further stated by the witness that accused Vinod caught hold of him, and the other three assaulted him. It is also stated by P.W. 1 Dhan Singh that the blow given by accused / appellant Daulat Singh with sickle landed on his right chest (under the armpit). He has further stated that the blow given by accused / appellant Govind hit on his head and right hand. 8) Statement of P.W. 1 Dhan Singh (injured) not only gets corroboration from the statement of Medical Officer, but also from the testimony given by eyewitnesses P.W. 2 Kedar Singh and P.W. 3 Surendra Singh (complainant). 9) Having re-assessed the oral evidence read with medical evidence on record, this Court concurs with the view taken by the trial court that the role of accused / appellant No. 2 Govind in assaulting Dhan Singh with deadly weapon, is proved on the record by the prosecution. It is pertinent to mention here that the first information report is prompt one and there is little possibility of implicating accused / appellant Govind, falsely in the case. 10) Ms. Krishi Shukla, learned counsel for the appellant No. 2 Govind, submitted before this Court that assuming for a moment that the prosecution has proved that accused / appellant No. 2 Govind caused injury on the 7 person of Dhan Singh, it constitutes only an offence punishable under Section 324 of I.P.C. It is contended that had the accused / appellants any intention to commit murder of Dhan Singh, the accused were four in number and could have easily finished their job, successfully. It is nobody’s case that they were made to run away by the unarmed witnesses. Attention of this Court is drawn to statement of P.W. 4 Dr. P.N. Tandon, who has stated that injuries No. 1, 2 and 3 were simple in nature. It was only the injury caused by Daulat Singh (since deceased), who gave a sickle blow and caused stab wound on the right side of chest of Dhan Singh, which is shown to be a grievous injury. 11) Learned counsel for the accused / appellant No. 2 Govind further submitted that now during pendency of this appeal, injured Dhan Singh (P.W. 1) has entered into compromise with appellant No. 2 Govind. Dhan Singh is present in the Court. An affidavit has been filed by Dhan Singh before this Court supporting said fact. Dhan Singh was identified before this Court by learned counsel for the appellant, and from the marks of injuries shown by him there remains no doubt as to the fact that he is the person who had suffered the injuries in this case. In his affidavit filed today before this Court Dhan Singh has stated that he does not want to prosecute Govind any further. 8 12) In the above circumstances, considering the nature of injury caused by accused / appellant No. 2 Govind, this Court holds that the charge proved as against accused / appellant No. 2 Govind is of Section 324 of I.P.C., which is a compoundable offence. In view of the statement given by the injured before this Court, as discussed above, the said offence stands compounded. Accordingly, this appeal deserves to be allowed on the ground that the offence punishable under Section 324 of I.P.C. proved against accused / appellant No. 2 Govind has been compounded with the injury. Therefore, the appeal of accused / appellant No. 2 Govind is allowed. His conviction and sentence recorded by the trial court relating to offence punishable under Section 307 of I.P.C. is set aside. He should have been convicted under Section 324 of I.P.C., but he is acquitted of the charge of offence punishable under Section 324 of I.P.C. also on the ground that the offence has already been compounded, as discussed in the judgment. The accused / appellant No. 2 Govind is in jail, after he was arrested during the pendency of this appeal. He shall be set at liberty, if not required in connection with any other crime. The Registry is dorected to send a copy of this judgment to the Superintendent of Jail concerned. Lower court record be sent back. The appeal of accused / appellant No. 1 Daulat Singh stands abated. (Prafulla C. Pant, J.) [[ Dt. July 26, 2010. H. Negi 9