RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No. 1708 of 2001 (Old No. 1589/2000) Govind Singh Panwar .…. Appellant/Accused Versus State of U.P. …………… Respondent September 20, 2010 Mr. Vinod Sharma, Advocate for the appellant. Mr. Prabhakar Joshi, Brief Holder for the State/respondent. HON’BLE DHARAM VEER, J. This appeal, preferred by the appellant under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.), is directed against the judgment and order dated 4.7.2000 passed by the Sessions Judge, Uttarkashi in Sessions Trial No. 7 of 1999, State of U.P. v. Govind Singh Panwar, whereby the accused appellant has been convicted under Section 304(1) of Indian Penal Code, 1860 (for short, IPC) and sentenced to undergo R.I. for eight years along with fine of Rs. 5000/-, in default to undergo six months’ simple imprisonment. 2. In brief, the prosecution case is that on 2.12.1998 at 11.45 am, PW1 Km. Geeta lodged an FIR Ex. Ka-1 with PS Kotwali, Uttarkashi with the averments that on 2.12.1998 at about 8 am, appellant accused came to her house and called her father Beer Bahadur Shahi, who was working as a Gardner at Nehru Institute of Mountaineering, Uttarkashi (for short, NIM). Thereafter in front of the office near the pond, the appellant accused caused the injuries to her father with stone due to which her father became injured and he was admitted to the hospital by the employees of NIM. On the basis of this report, NCR was registered as NCR No. 55/98 under Section 323 IPC, copy 2 of which is Ex. Ka-3. Necessary entry was made in the GD, copy of GD is Ex. Ka-4. The injured was medically examined by Dr. Ajit Gairola (PW7), EMO, Govt. Hospital, Uttarkashi on 2.12.1998 at 10.30 am and he also prepared a medical report Ex. Ka-14. Thereafter the patient was referred to Dehradun but he died in the way to Dehradun and thereafter his dead body was again brought to Govt. Hospital, Uttarkashi on the same day and thereafter a memo in this regard Ex. Ka-15 was sent from the hospital by EMO Dr. SVS Som to the police station on the same day i.e. on 2.12.1998 and in the police station, the entry was made in the GD, copy of which is Ex. Ka-5 and the case was converted under Section 304 IPC. Investigation of this case was entrusted to Station Officer Pradeep Kumar Dobhal (PW8). Along with the inquest report, other papers, viz, photolash Ex. Ka-7, police form no. 13 Ex. Ka-8, application to the concerned Inspector Ex. Ka-9, letter to CMS Ex. Ka-10 were also prepared. Thereafter the dead body was sent for the post-mortem. Post-mortem was conducted on 3.12.1998 at 2.35 pm by PW5 Dr. DL Shah, who also prepared the post-mortem report Ex. Ka-2. During the course of investigation, the I.O. inspected the place of occurrence and prepared the site plan Ex. Ka-11. The I.O. also recovered the plain and bloodstained damar from the place of occurrence and prepared the fard Ex. Ka-12. He also recorded the statements of the witnesses during the course of investigation and after completing the investigation, he filed the chargesheet Ex. Ka-13 against the accused appellant. 3. Learned CJM, Uttarkashi after giving the necessary copies of the documents to the accused appellant as prescribed under Section 207 CrPC, committed the case to the Court of Sessions on 11.5.1999. 3 4. On 28.7.1999, learned Sessions Judge, Uttarkashi framed the charge against the accused appellant for the offence punishable under Section 304 Part I of the IPC. The charge was read over and explained to the accused appellant, who pleaded not guilty and claimed to be tried. 5. To prove its case, the prosecution has examined PW1 Km. Geeta, the complainant and an eyewitness; PW2 Smt. Sona, an eyewitness; PW3 Smt. Laxmi Devi, wife of the deceased and witness of circumstantial evidence; PW4 Tekendra Bahadur, an eyewitness; PW5 Dr. DL Shah, who conducted the post-mortem; PW6 Constable Clerk Nandan Lal; PW7 Dr. Ajit Gairol, who medically examined the deceased and PW8 Station Officer Pradeep Kumar Dobhal, the I.O. of the case. 6. Thereafter, statement of the accused appellant was recorded under Section 313 CrPC. The oral and documentary evidence were put to him in question form, who denied the allegations made against him and stated that he was falsely implicated in the case due to enmity. However, in defence, he did not produce any documentary evidence, but two witnesses, viz, Rakesh Mahar and Vijay Krishan Nautiyal were examined as DW1 and DW2 respectively. 7. After hearing learned counsel for the parties and after appreciating the evidence available on record, learned Sessions Judge, Uttarkashi vide his judgment and order dated 4.7.2000 convicted and sentenced to the accused appellant as discussed above. Against the aforesaid judgment and order dated 4.7.2000, the accused appellant has preferred the present appeal. 4 8. I have heard learned Counsel for the parties and have carefully perused the entire material available on record. 9. Before any further discussion, it would be pertinent to mention the injury found on the body of injured Beer Bahadur Shahi, who was medically examined by PW7 Dr. Ajit Gairola on 2.12.1998 at 10.30 am and prepared the medical report Ex. Ka14, wherein the following injury was noted: “Lacerated wound size 3 cm x 2 cm x 2 cm on occipital region fresh bleeding present. Patient is being admitted to further management.” 10. To prove the aforesaid medical report Ex. Ka-14, the prosecution has examined PW7 Dr. Ajit Gairola, who has proved the contents of same and has further stated that the injury could be caused by some blunt object like stone. He has also proved the memo Ex. Ka-15, which was sent by Dr. SVS Som from the hospital to the police station after the death of injured Beer Bahadur Shahi. 11. Thereafter on 3.12.1998 at 2.35 pm, the post- mortem on the dead body was conducted by PW5 Dr. DL Shah, who also prepared the post-mortem report Ex. Ka-2, wherein following ante mortem injuries have been noted: (i) The head was tied with patti and 4 cm long stitch was found in the back of skull after opening the patti from the head. (ii) 4 cm x 4 cm contusion, bluish in colour, which contained the aforesaid first injury. (iii) 1 x 1 cm bluish mark on the left side of face which was 4 cm ahead of the ear. (iv) 2.5 cm x 2.5 cm bluish mark on the back of right hand, which was 3 cm above the ankle. 5 The cause of death is coma due to head injury resulting subdural haematoma and fracture of occipital bone. 12. To prove the aforesaid post-mortem report Ex. Ka-2, the prosecution has examined PW5 Dr. DL Shah, who has proved the contents of same and has further stated that all the ante mortem injuries could be caused to the deceased on 2.12.1998 at about 8 am by stone and head injury was sufficient for the death. 13. To further prove its case, the prosecution has examined PW1 Km. Geeta, the complainant and an eyewitness of the incident, who has stated that Beer Bahadur Shahi was her father, who was posted as a Gardner at NIM, Uttarkashi and they were living in the quarters of NIM. She has identified the accused appellant in the trial court and has stated that the accused appellant was a Driver in NIM. On 2.12.1998 at about 8 am, she was at her home along with her father, mother, two brothers and sister. At that time, appellant accused has come to her quarter and knocked the door. Her father opened the door. Then the accused appellant told his father that Kamal Singh Negi was calling him. Kamal Singh Negi was also an employee of NIM. Up to that time, her father had not taken the breakfast. Her father gone along with the accused appellant and at that time her mother was cooking the breakfast. Her mother asked her as to who had come. Then she told her mother that the accused appellant has taken her father along with him. Her mother knew that one day before a quarrel had taken place with her father. Therefore, her mother asked as to why he has called her father. Her mother became perplexed and asked her to look for her father. Then she along with her sister Smt. Sona (PW2) had gone in front of 6 the office where the accused appellant had taken her father. There she saw that the employees of NIM were standing there and the accused appellant by catching the hairs of her father was causing injuries to him by stone. The blood was oozing out from the wounds, due to which her father’s clothes became bloodstained and blood also fallen on the ground. Her father became unconscious. All the employees were seeing the said incident. After seeing this incident, she had gone running to her house and told the incident to her mother. Thereafter employees of NIM taken her father to the hospital and she also reached to the hospital. On the advice of Medical Officer, her father was referred to Dehradun hospital, but in the way to Dehradun her father died. Thereafter the dead body was brought back to the Uttarkashi hospital. The report was written by her in her own handwriting and the same was also signed by her and was given in the Kotwali. That report is Ex. Ka-1. This witness was cross-examined at length by the defence counsel, but nothing has come in her statement which may create any doubt about the prosecution story. Her statement is believable, reliable and inspire the confidence. 14. PW2 Smt. Sona is the daughter of the deceased and she is also an eyewitness of the incident, who has fully corroborated the statement of PW1 Km. Geeta. PW4 Tekendra Bahadur is also an eyewitness of the incident and he has also corroborated the prosecution story. 15. PW3 Smt. Laxmi Devi is the wife of deceased Beer Bahadur Shahi, who has stated that she was living in the quarter of NIM along with her husband. Accused appellant was known to her, who was working as a Driver in NIM and was living in the same colony of NIM. A day before 2.12.1998, her husband Beer Bahadur Shahi had told her 7 that a quarrel had taken place between him and the accused appellant. It was told by her husband on the previous evening of 2.12.1998. When she asked the reason for the quarrel, then her husband replied what to tell about it to a woman and thus he ignored her query. On the date of incident, she was cooking breakfast in the morning. At that time, accused appellant came to her quarter and told that Mr. Negi was calling him. Her husband went along with the accused appellant. Mr. Negi was also working in NIM. After about an hour of leaving her husband, she told her daughter Km. Geeta (PW1) to look for her father as the accused appellant used to quarrel with him. She had doubt as to why the accused appellant came calling her husband. Thereafter Km. Geeta went near the pond of NIM where the office is situated. After sometime she came back and told that accused appellant has killed her father. Her daughter was perplexed. When she reached at the place of occurrence along with her daughter, nobody was present there. She came to know that her husband was taken to the hospital. From the place of occurrence, she directly went to the hospital from where her daughter Km. Geeta had gone to lodge the FIR. Her husband was referred to Dehradun, but he died in the way near Chamba. Thereafter the dead body was brought back to Uttarkashi hospital. The dead body of her husband was handed over to her after the post- mortem. This witness was cross-examined at length by the defence counsel but nothing has come in her statement which may create any doubt about her deposition. Her statement is reliable, believable and inspires the confidence. 16. PW6 Constable Clerk Nandan Lal has proved the NCR Ex. Ka-3 which was prepared after lodging the report (Ex. Ka-1) and the GD reports Ex. Ka-4 and Ka-5. 8 17. PW8 Station Officer Pradeep Kumar Dobhal, who has stated that investigation of this case was done by him. On 3.12.1998, he taken into possession the dead body of Beer Bahadur Singh and prepared the inquest report Ex. Ka-6. Along with the inquest report the other papers, viz, photolash Ex. Ka-7, police form no. 13 Ex. Ka-8, application to the Concerned Inspector Ex. Ka-9, letter to CMS Ex. Ka-10 were also prepared. Thereafter the dead body was sent for the post-mortem. During the course of investigation, he inspected the place of occurrence and prepared the site plan Ex. Ka-11. He also recovered the plain and bloodstained damar from the place of occurrence and prepared the fard Ex. Ka-12. He also recorded the statements of the witnesses during the course of investigation and after completing the investigation, he filed the chargesheet Ex. Ka-13 against the accused appellant. 18. Thereafter, statement of the accused appellant was recorded under Section 313 CrPC. The oral and documentary evidence were put to him in question form, who denied the allegations made against him and stated that he was falsely implicated in the case due to enmity. However, in defence, he did not produce any documentary evidence, but two witnesses, viz, Rakesh Mahar and Vijay Krishan Nautiyal were examined as DW1 and DW2 respectively. 19. DW1 Rakesh Mahar has stated that on 2.12.1998, he was also working in NIM and on that day he had seen Beer Bahadur Singh when he was going to the office and he slipped in his way to the office and fell down and became unconscious. Thereafter he was lifted by him with the help other employees, viz., Vijay, Babu Ram, Mangat 9 Ram, etc and he was given first aid by the doctor of NIM, who referred him to District Hospital, Uttarkashi. He was brought to District Hospital, Uttarkashi in the ambulance of NIM, from where doctors referred him to Dehradun. Thereafter he was being brought to Derhadun but he died in the way near Chamba. He was seen by the doctors of Chamba Hospital where he was declared dead. Registrar of NIM had given written order Ex. Kha-1 for taking Beer Bahadur Shahi to Dehradun in ambulance. The dead body of Beer Bahadur Shahi was brought back to District Hospital, Uttarkashi. Thereafter he returned to his home. 20. DW2 Vijay Krishan Nautiyal has stated that he was along with Rakesh Mahar (DW1), when Beer Bahadur Shahi was being lifted. He has also stated that Beer Bahadur Shahi received the injuries when he slipped. 21. Learned Counsel for the accused appellant argued that on the basis of the evidence discussed above, the prosecution has not proved the case against the accused appellant beyond reasonable doubt. I do not find any substance in the argument of the learned Counsel for the accused appellant due to the following reasons: (i) That there are three eyewitnesses of the incident, viz, PW1 Km. Geeta, PW2 Smt. Sona and PW4 Tekendra Bahadur and all of them have supported the prosecution story. (ii) That PW1 Km. Geeta, the complainant and an eyewitness of the incident has stated that on 2.12.1998 at about 8 am, accused appellant came to her quarter and told her father Beer Bahadur Singh that he was being called by Kamal Singh Negi. On this, her father had gone along with the accused appellant. Thereafter her mother (PW3 Smt. Laxmi Devi) asked her as 10 to who had come and when she came to know that it was the appellant accused, then her mother told her that a day before a quarrel had taken place between her father and the accused appellant and, therefore, she had doubt about the intention of the accused appellant and she became perplexed and told her daughter Km. Geeta to look for her father. Thereafter Km. Geeta went at the place of occurrence along with her sister Smt. Sona and witnessed the said incident. She has categorically stated that the accused appellant had caught hold of her father by catching his hairs and inflicted injuries on him with stone. Her father fell down and became unconscious and blood started oozing out from the injuries because of which his clothes also became bloodstained. Blood also spread on the surface. Thereafter she became very nervous and came running to her house and narrated the incident to her mother Smt. Laxmi Devi, who immediately went at the place of occurrence along with her, but nobody was there. Thereafter she came to know that her husband has been taken to the hospital and then she directly went to the hospital along with Km. Geeta. Thereafter Km. Geeta lodged the report Ex. Ka-1. This witness was cross- examined at length by the defence counsel, but she could not be shaken on any point during her cross-examination. Her testimony is believable, reliable and inspires the confidence. (iii) That PW2 Smt. Sona and PW4 Tekendra Bahadur, eyewitnesses of the incident have fully corroborated the statement of PW1 Km. Geeta. 11 (iv) That PW3 Smt. Laxmi Devi, wife of the deceased has stated that on the previous evening of the date of incident, her husband Beer Bahadur Shahi had told her that a quarrel had taken place between him and the accused appellant. When she came to know that on 2.12.1998 at about 8 am, the accused appellant had came to her house and had taken her husband, she doubted the intention of the accused appellant and, therefore, she became perplexed and also told her daughter Km. Geeta about the said quarrel and asked her to look for her father. After sometime, Km. Geeta returned and narrated the aforesaid incident to her. Thereafter she came at the place of occurrence along with Km. Geeta, where she came to know that her husband was taken to the hospital and thereafter she directly went to the hospital and from the hospital, Km. Geeta went to lodge the report. Smt. Laxmi Devi is the witness of circumstantial evidence and she was cross- examined at length by the defence counsel, but nothing has come in her statement which may create any doubt about her deposition. Her statement inspires the confidence as the same is believable and reliable. (v) That as per the medical report Ex. Ka-4, the injured Beer Bahadur Shahi had received injuries in his head. As per the medical report, the injured Beer Bahadur Shahi died in coma due to head injury resulting in subdural haematoma and fracture of occipital bone. (vi) That PW5 Dr. DL Shah, who conducted the post-mortem on the dead body on 3.12.1998 at 2.35 pm, has stated in his deposition that the 12 deceased died due the head injury which resulted in subdural haematoma and fracture of occipital bone. He has further stated that the injuries on the body of deceased could have been inflicted on 2.12.1998 at about 8 am and these injuries could have been caused by stone and head injury was sufficient for the death. (vii) PW7 Dr. Ajit Gairol, who initially examined Beer Bahadur Shahi has stated that the deceased had sustained head injury which could have been inflicted by some blunt object like stone. He has further stated that the condition of Beer Bahadur Shahi was very serious and blood was oozing out from the backside of his head and in this condition, death was possible. (viii) Thus the ocular version of prosecution story is well-supported by the medical evidence. (ix) That the incident took place at about 8 am on 2.12.1998 and the report of this incident was lodged on the same day at 11.45 am. The injured was first taken to District Hospital, Uttarkashi where he was medically examined at 10.30 am and thereafter FIR was lodged on the same i.e. on 2.12.1998 at 11.45 pm. Therefore, in the facts and circumstances of the case narrated above, the FIR is also prompt. (x) That the motive behind the said incident is also proved as quarrel had taken place between the deceased and the accused appellant on the previous day of the incident. Thereafter on the next day i.e. on 2.12.1998, the accused appellant himself came at the house of the deceased and had taken him with himself on the pretext that Kamal Singh Negi was calling him and thereafter committed the said incident 13 by causing injuries to the deceased by stone near the pond of NIM. 22. Thus, in view of the foregoing discussion of evidence and for the reasons recorded above, prosecution has successfully proved its case against the accused appellant beyond reasonable doubt for the offence punishable under Section 304(1) IPC and, therefore, learned trial court has rightly convicted and sentenced to the appellant accused. Hence, impugned judgment and order dated 4.7.2000 passed by the Sessions Judge, Uttarkashi is correct and justified and it warrants no interference by this Court. 23. In the result, the appeal being devoid of merit is hereby dismissed. Judgment and order dated 4.7.2000 passed by the Sessions Judge, Uttarkashi in Sessions Trial No. 7/1999, State of U.P. v. Govind Singh Panwar is affirmed. Consequently, the conviction of the accused appellant Govind Singh Panwar under Section 304(1) IPC is also upheld and the sentence awarded to him to undergo RI for eight years along with fine of Rs. 5000/-, in default to undergo six months’ simple imprisonment is also affirmed. However the period during which the appellant was in jail during investigation, trial and appeal shall be adjusted after verifying the same from the records. Appellant is on bail. His bail bond is cancelled. He shall be taken into custody forthwith to serve out the aforesaid sentence. 24. A copy of this judgment and order be sent to the trial court for its compliance. Let the lower court record be sent back. (Dharam Veer, J.) 20.9.2010 PRABODH