Reserved Judgment HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal no. 782 of 2001 (Old no. 1726 of 1991) Suresh Prasad S/o Sri Bhawani Prasad, R/o Thana Bazar, Almora. ------- Accused/appellant. Versus The State. ------- Respondent Mr. Anoop Kumar Verma, holding brief Sri C.D. Bahuguna, learned counsel for the appellant. Sri M.A. Khan, learned Brief Holder for the State. Dated: August 20, 2008 Hon’ble Dharam Veer, J. This appeal preferred u/s 374(2) of The Code of Criminal Procedure, 1973 (hereinafter referred to as the Cr.P.C.) is directed against the judgment and order dated 24.08.1991 passed by learned Sessions Judge, Almora in Sessions Trial no.7 of 1990 State vs. Suresh Prasad, whereby the learned Sessions Judge has convicted the accused/appellant Suresh Prasad for the offence punishable u/s 304 Part-II of The Indian Penal Code, 1860 (hereinafter referred to as the I.P.C.) and sentenced him to undergo rigorous imprisonment for a period of 7 years’. 2. I have heard Sri Anoop Verma, holding brief of Sri C.D. Bahuguna, learned counsel for the accused/appellant and Sri M.A. Khan, learned Brief Holder for the State and also perused the record of the Trial Court. 3. The prosecution case, in brief, is that the complainant Vinod Kumar Vaishnav (PW-3) had lodged a First Information Report in the Police Station Kotwali-Almora on 08.11.1989 at 8:20 a.m. with the averments that near his house; there is the shop of one Karnatak of radio and T.V. and in that shop the accused/appellant Suresh is employed as a mechanic. On 07.11.1989 at about 8:00 p.m. his elder brother Yogesh Chandra 2 Vaishnav had gone at the shop of the accused Suresh, where a quarrel had taken place in between them due to some reason. He heard the noise and when he reached on the place of occurrence alongwith his uncle Gopal Dutt, he saw that the accused Suresh Prasad and his brother Yogesh Chandra were exchanging abuses. Meanwhile, the accused/appellant Suresh had attacked twice or thrice on Yogesh Chandra with a screw driver due to which Yogesh Chandra got seriously injured and fallen down on the spot. Besides him, this incident was witnessed by his uncle Gopal Dutt, Iqual and Harish Singh Bisht. When he inquired the accused/appellant Suresh as to why he had caused injuries to his brother, then he answered that as Yogesh was abusing him that’s why he inflicted injuries to him. At that time the accused was armed with the screwdriver. It is further stated that there was no enmity in between Yogesh and Suresh. The injured Yogesh was taken to the Base Hospital, Almora where he was admitted and due to the injuries sustained by the injured, he died in the morning on 08.11.1989 in the hospital. The First Information Report is Ext. Ka-3. On the basis of this report, the Chik F.I.R. Ext. Ka-8 was prepared by the Head Moharir Govind Singh and a case crime no. 390/1989 u/s 304 I.P.C. was registered at the Police Station Almora. An entry was made in the General Diary, copy of which is Ext. Ka-9. Firstly the injured was medically examined by Medical Officer PW-1 Dr. Udaibir Singh on 07.11.1989 at 9:00 p.m. at Base Hospital, Almora and the injury report Ext. Ka-1 was prepared. Investigation of the case was entrusted to Sub Inspector Jora Singh (PW-7). Inquest report Ext. Ka-10 was prepared in the hospital by the Investigating Officer. Letter to the Senior Medical Superintendent, Almora Ext. Ka-11 was sent by the I.O. for conducting postmortem of deceased Yogesh Chandra. Sketch of the dead body Ext. Ka-12, Sample seal Ext. Ka-13 and Police Form no.13 Ext. Ka-14 were also prepared by the I.O. at the time of preparing the inquest report. The dead body of Yogesh Chandra was sent for conducting postmortem. 3 Autopsy was conducted on 08.11.1989 at 4:00 p.m. by PW-2 Dr. R.S. Maurya who prepared the autopsy report Ext. Ka-2. During the course of investigation, the Investigating Officer, after making spot inspection, prepared the site plan Ext. Ka-15 of the place of occurrence. He also took bloodstained and plain cement from the place of occurrence and prepared FARD Ext. Ka-16. The I.O. had given the shoes of the deceased Yogesh Chandra in the SUPURDAGI of the complainant Vinod Kumar and prepared a FARD Ext. Ka-7. The accused/appellant Suresh had surrendered in the Court and thereafter the accused was taken in the police remand and in the police remand on 03.12.1989, on the pointing out of the accused/appellant Suresh a bloodstained bed sheet was recovered from the place of occurrence and a FARD Ext. Ka-5 was prepared. Out of three locks, by which the shop was locked, after opening two locks, the I.O. has taken in possession the two locks and prepared FARD Ext. Ka-6. Keys were also taken in possession and FARD Ext. Ka-17 was prepared. One screw driver was also recovered from the shop on the same day i.e. on 03.12.1989 and the recovery memo Ext. Ka-4 was prepared. After completing the investigation, the I.O. submitted charge sheet Ext. Ka-20 u/s 304 I.P.C. against the accused/appellant. 4. Learned Chief Judicial Magistrate, Almora on receipt of the charge sheet, after giving necessary copies to the accused/appellant as required u/s 207 Cr.P.C., committed the case to the Court of Sessions for trial on 12.02.1990. 5. On 02.04.1990, the learned Sessions Judge, Almora after hearing the parties framed the charge of offence punishable u/s 302 I.P.C. against the accused /appellant Suresh Prasad. The charge was read over and explained to the accused who pleaded not guilty and claimed to be tried. 4 6. In order to prove its case, the prosecution has examined PW-1 Dr. Udaibir Singh, who firstly on 07.11.1989 at 9:00 p.m. medically examined the injured Yogesh Chandra at Base Hospital, Almora, PW-2 Dr. R.S. Maurya-who conducted autopsy on the person of the deceased Yogesh Chandra, PW-3 Vinod Kumar-complainant and eye-witness, PW-4 Iqbal Ahmad-the eyewitness, PW-5 Gopal Dutt-the eyewitness, PW-6 Irshad Hussain-the witness of recovery of the articles and PW-7 Sub Inspector Jora Singh-Investigating Officer of the case. 7. After that the oral and documentary evidence was put to the accused in the form of questions u/s 313 Cr.P.C. who, in reply, denied the allegations made against him and has stated that he has been falsely implicated in the case. In defence he did not produce any documentary evidence but in oral evidence DW-1 Girish Chandra Joshi was examined as defence witness. 8. After appreciating all the evidence available on record and hearing the learned counsel for the parties, the learned Sessions Judge has convicted the accused/appellant Suresh Prasad for the offence punishable u/s 304 Part-II I.P.C. and sentenced him to undergo rigorous imprisonment for a period of 7 years’. Aggrieved with the conviction and sentence awarded to him, the accused/ appellant has preferred this appeal. 9. Before further discussion, it is pertinent to mention the injuries found on the person of Yogesh Chandra, when he was medically examined by PW-1 Dr. Udaibir Singh on 07.11.1989 at 9:00 p.m. The following injuries were found on the body of Yogesh Chandra:- i. One lacerated wound 1cm. x .5cm. x bone deep horizontally placed at the left side of forehead. Fresh bleeding present; upto bone deep; 5 ii. Lacerated wound ½cm. x ½ cm. x muscle deep, situated at the left side of face, about 2’’ lateral to left eye. Fresh bleeding present. iii. Single abrasion present at the right side of neck extending from ear to lower part of neck (right), 15cm. x ¾ cm. iv. On examination smell of alcohol coming out from breath and patient is unconscious, eyes congested, pupils semi-dilated reaction sluggish to light. Advised X-Ray skull when patient’s condition improved. The doctor opined that the injuries were fresh, blunt and kept under observation. The injury report prepared by Dr. Udaibir Singh is Ext. Ka-1. 10. On the next morning i.e. on 08.11.1989 the injured Yogesh Chandra had died in the hospital and his autopsy was conducted by PW-2 Dr. R.S. Maurya on 08.11.1989 at 4:00 p.m. Dr. R.S. Maurya found the following ante-mortem injuries on the person of Yogesh Chandra:- i. 1 cm. wound stitched present on left temporal area with red colour, blood clot; ii. 1 cm. wound stitched present on forehead, 4cm. above the left eyebrow; iii. 3 cm. size long wound already dressed present on right side of neck; iv. 2 cm. long dressed wound present on scalp, 10 cm. above the right eye. On external examination, rigor mortis was found present in upper and lower limbs. On internal examination, multiple fracture on left temporal parietal junction or bones was detected. Membrane was found to be lacerated beneath the fracture and laceration of brain matter below the fracture, size about 2 x 1 cm. alongwith soft red coloured blood clot was also 6 detected. The left chamber of the heart was found empty, while the right chamber was full of dark coloured blood. The stomach was found half filled with semi digested food. Large intestine contained faecal matter and gases and the bladder was found half filled with urine. The doctor opined that the death was caused due to the shock as a result of ante-mortem head injuries nearly 8 hours ago. The postmortem report prepared by PW-2 Dr. R.S. Maurya is Ext. Ka-2 on the record. 11. In order to prove its case, the prosecution has further examined PW-1 Dr. Udaibir Singh, who at first examined Yogesh Chandra on 07.11.1989 at 9:00 p.m. at Base Hospital, Almora and found the injuries noted in para-9 of the above, on the body of the injured Yogesh Chandra. He has further deposed that the injuries could be caused on 07.11.1989 at about 8:00 p.m. He opined that the injury nos. 1 & 2 could be caused with a screw from its driving edge and the injury no. 3 could be possible by friction. After seeing the recovered screw driver, the doctor opined that injury nos. 1 & 2 could be caused by this screw driver. At the time of evidence PW-1 Dr. Udaibir Singh had also taken the medico legal register alongwith him, in order to prove the injury report Ext. Ka-1. He has further stated that he examined medically to Yogesh Chandra and noticed that before examining the patient, no medical treatment was given to him. 12. PW-2 is Dr. R.S. Maurya, who has stated that on 08.11.1989 he was posted as Medical Officer at District Hospital Almora. On that day Constables Rakesh Babu and Brijendra Singh brought the dead body of Yogesh Chandra in sealed condition and he conducted autopsy on the dead body. He found the ante-mortem injuries noted as above in para-10 on the person of Yogesh Chandra. He has further stated that the ante-mortem injuries could be possible on 07.11.1989 at 8:00 p.m. and the injury nos. 1 & 2 could be caused by a screw driver. 7 In the Trial Court; the recovered screw driver was shown to this witness, who has stated that the injury nos. 1 & 2 could be caused from the driving side of this screw driver. 13. PW-3 is Vinod Kumar-complainant and eyewitness, who has stated that the deceased Yogesh Chandra was his elder brother. He has stated that nearby his house at Almora there is a shop of T.V. mechanic and in that shop the accused Suresh Prasad was employed on the date of occurrence. He has further stated the incident said to have taken place on 07.11.1989 at about 8:00 p.m. He heard a noise of quarrel from the shop of Suresh Prasad then he alongwith his uncle PW-5 Gopal Dutt reached at the place of occurrence where he saw that his brother Yogesh Chandra and the accused Suresh Prasad were exchanging abusive languages to each other, outside the shop. The accused/appellant Suresh Prasad was armed with a screw driver and with that screw driver, the accused/appellant Suresh Prasad had inflicted injuries to Yogesh Chandra, due to which Yogesh Chandra had fallen down on the cement floor. At that time besides him, his uncle Gopal Dutt and Iqbal Ahmad were present on the place of occurrence. He tried to lift his brother, but he was unconscious. He asked the accused Suresh Prasad that why he had caused injuries to his brother Yogesh Chandra, then the accused Suresh Prasad had replied that Yogesh Chandra was abusing him, hence he caused injuries to him with the screw driver. Thereafter, the accused Suresh had gone to his shop. The screw driver Ext.-1 by which the appellant/accused had caused injuries to Yogesh Chandra was seen in the Trial Court, seeing which he stated that it was the same screw driver, by which the accused caused injuries to Yogesh Chandra. He has further stated that he took his brother to the Meena Nursing Home, where the doctor had not gave any medical treatment to his brother and advised to take him at Base Hospital. Then the injured was taken to Base Hospital Almora and admitted there. In next morning the injured Yogesh Chandra had died at the 8 Base Hospital, due to the injuries cause by the accused/ appellant and he remained unconscious till his death. He has further stated that blood was fallen on the place of occurrence, which oozed out from the injuries of Yogesh Chandra. After the death of Yogesh Chandra, he had lodged a report at Police Station, that report is Ext. Ka-3. After some days of the incident the Sub Inspector came in the shop of Suresh Prasad and after opening the lock the screw driver Ext.-1 was recovered from the shop and at that time the accused Suresh Prasad was also accompanied with the Sub Inspector. The accused Suresh had given a screw driver to the Sub Inspector, after taking it out from the shop. A FARD was prepared by the Sub Inspector at the spot and he also put his signatures on the FARD Ext. Ka-4. A bloodstained bed sheet was also given by the accused/ appellant to the Sub Inspector that bed sheet is Ext.-2. A FARD of the recovery of bed sheet was also prepared, which is Ext.Ka- 5. When the Sub Inspector came at the shop, at that time the shop was locked from outside. Two locks were unlocked by the police with the help of a mechanic and these two locks were taken in possession by the police and a FARD Ext. Ka-6 was prepared. These two locks are Ext-3 & 4. One pair of shoes of the deceased Yogesh Chandra was given in his SUPURDAGI and a FARD Ext. Ka-7 was prepared by the I.O. This witness was cross-examined by the defence counsel at length but nothing has come out in his evidence, which may create any doubt. The evidence of this witness on each and every aspect is reliable, believable and trustworthy. 14. PW-4 is Iqbal Ahmad, who has not supported the prosecution case and declared hostile. 15. PW-5 is Gopal Dutt-the another eyewitness who has stated that on 07.11.1989 at 8:00 p.m. when he was present in his house then his nephew Vinod Kumar has informed him that some quarrel was going on with Yogesh Chandra. He alongwith 9 his nephew Vinod Kumar (PW-3) had reached on the place of occurrence. When he reached at the spot, then he saw that Yogesh Chandra and the accused Suresh Prasad were abusing each-other. In the meanwhile, Suresh Prasad had caused injuries to Yogesh Chandra with screw driver twice or thrice due to which Yogesh Chandra received injuries and he fallen down on the spot. His another nephew Vinod Kumar (PW-3) was also present on the place of occurrence. After 5 minutes of the incident, Iqbal Ahmad had also reached on the place of occurrence. When Yogesh Chandra had fallen on the earth, then blood was oozed out from his head. The injured was taken at Meena Nursing Home where the doctor has advised him to take the injured at Base Hospital, thereafter the injured was taken to Base Hospital Almora and admitted there. On the next morning at about 7:00-7:30 a.m. Yogesh Chandra died in the Hospital. He identified the screw driver Ext.-1 and the bed sheet Ext.-2. On seeing the screw driver, he said that this was the same screw driver by which the accused caused injuries to Yogesh Chandra. He has further stated that the accused Suresh Prasad was employed as a mechanic in the radio shop and this incident happened to be on the road in front of the shop of the accused Suresh Prasad. 16. PW-6 is Irshad Hussain, who has stated that he was called by the Sub Inspector on a Sunday and he alongwith the police and the accused/appellant had reached at the place of occurrence. The radio repair shop was locked with three locks. He opened two locks Ext.- 3 & 4. Then the accused/appellant had given a screw driver and a bed sheet to the Sup Inspector from the shop. The screw driver is Ext.-1. He made signatures in the FARD Ext.Ka-4. 17. PW-7 is Sub Inspector Jora Singh, the Investigating Officer of the case, who has stated that in the month of November-December 1989 he remained posted at Police 10 Station, Almora. Head Moharir Govind Singh was also posted at the police Station. The First Information Report Ext. Ka-3 was lodged at the Police Station and on the basis of this report, Govind Singh Head Moharir had prepared the Chik F.I.R. Ext.Ka-8. An entry was made in the G.D. and copy of the G.D. is Ext. Ka-9. Investigation of this case was entrusted to him. Yogesh Chandra died at the Base Hospital and he prepared the inquest report Ext. Ka-10. Letter for conducting postmortem, sketch of dead body, sample seal and the Challan Lash-Police Form no. 13 were prepared by him, which are Ext. Ka-11 to Ka- 14. The dead body was sent for postmortem in a sealed condition through Constables Brijendra Singh and Rakesh Babu. During the course of the investigation, he recorded statements of the witnesses and prepared the site plan of the place of occurrence Ext. Ka-15. From the place of incident he had taken bloodstained and plain cement in his possession and prepared FARD Ext. Ka-16. The accused had surrendered before the Court of C.J.M., Almora on 09.11.1989 and on the basis of the Court’s order dated 02.12.1989 the accused was taken in the police remand and on 03.12.1989 he took the accused in his custody from District Jail, Almora. On being inquired the accused told that the screw driver is in the shop. Then he took the accused/appellant at the place of occurrence from where the screw driver was recovered after opening the locks. Irshad Hussain-a mechanic (PW-6) had opened two locks of the shop. The locks were also taken into possession and FARD Ext. Ka-6 was prepared. The keys were also taken into possession and a FARD was prepared, which is Ext. Ka-17. On opening the shop, the accused entered into the shop and he took out the screw driver from the shop and handed it over to him. A FARD of recovery of screw driver Ext. Ka-4 was prepared. A bed sheet was also handed over by the accused and a FARD Ext. Ka-5 was prepared in this regard. During the investigation, he also received the injury report Ext. Ka-1. He also prepared a map Ext. Ka-18 on 03.12.1989 of the place from 11 where the recovery was made. Exts. 1 & 2 were recovered from inside the shop and by the locks; the shop was closed. He also took photographs of the place of occurrence, which are paper nos. 16Ka/1 to 16Ka/3. After completing investigation, he submitted charge sheet Ext. Ka-20 against the accused/appellant. 18. After that the oral and documentary evidence was put to the accused in the form of questions u/s 313 Cr.P.C. who, in reply, denied the allegations made against him and has stated that he has been falsely implicated in the case. In reply to question no. 14, he has stated that on the date of incident he was working in the shop of G.C. Joshi as a T.V. mechanic. In defence he did not produce any documentary evidence, but in oral evidence DW-1 Girish Chandra Joshi was examined as defence witness. This witness has stated that in the year 1986 he had a shop of electronics in Mohalla Gangola, Almora. His shop was registered with the Labour Department and the registered number was 1215. In the month of January 1989 the appellant/accused Suresh Prasad had come to him to learn the work. He started working at his shop as an apprentice since 1st February 1989. Since then he was working regularly in his shop. Then he had worked in his shop till 8th November 1989 and worked at his shop upto the closing of the shop. Closing time of the shop was 8:30 p.m. On 07.11.1989 the accused Suresh Prasad had worked till 8:30 p.m. 19. Learned counsel for the accused/appellant has contended that from the evidence produced by the prosecution, no case is proved beyond reasonable doubt against the accused/appellant for the offence punishable u/s 304 Part-II, I.P.C. I do not find any substance in the argument advanced by the learned counsel for the accused/appellant. From the evidence adduced by the prosecution the offence punishable u/s 304 Part-II, I.P.C. is proved against the accused/ appellant Suresh Prasad beyond 12 reasonable doubt, as it is evident from the evidence of PW-3 Vinod Kumar, who has categorically stated that on 07.11.1989 at about 8:00 p.m. on hearing noise from the shop of the accused/appellant Suresh Prasad and noise of his brother Yogesh Chandra, he alongwith his uncle Gopal Dutt had reached on the place of occurrence where he saw that the abusing process was going on in between the accused/appellant Suresh Prasad and his brother Yogesh Chandra. In the meanwhile, the accused Suresh Prasad had caused injuries on the head of Yogesh Chandra with a screw driver, two or three times, due to which Yogesh Chandra got injured and he fell down. At first he took his brother Yogesh Chandra to the Meena Nursing Home where the doctor has advised him to take him to the Base Hospital. He took his brother to the Base Hospital where he was admitted. Yogesh Chandra was medically examined on the same day at 9:00 p.m. by PW-1 Dr. Udaibir Singh who found injuries on the body of Yogesh Chandra and the doctor prepared the injury report Ext. Ka-1. He has stated that Yogesh Chandra became unconscious due to the injuries cause by the accused/ appellant and he remained unconscious till his death i.e. till the morning of 08.11.1989. The autopsy report Ext. Ka-2 is proved by PW-2 Dr. R.S. Maurya and the ante-mortem injuries mentioned in para-10 noted above caused to the deceased Yogesh Chandra are also proved. PW-2 Dr. R.S. Maurya has also opined that the death was caused due to the shock as a result of ante-mortem injuries in the head. Evidence of PW-3 Vinod Kumar got corroborated from the evidence of PW-5 Gopal Dutt-another eyewitness. Though, PW-4 Iqbal Ahmad did not support the prosecution case, as he was declared hostile but the ocular version of PW-3 Vinod Kumar fully corroborated not only from the oral evidence of PW-5 Gopal Dutt and the evidence of Medical officers PW-1 Dr. Udaibir Singh and PW-2 Dr. R.S. Maurya but also from the injury report Ext. Ka-1 and the autopsy report ext. Ka-2. It is also proved by the prosecution that the screw driver, which was used as a 13 weapon in commission of the said crime also discovered and recovered on the instance of the accused/appellant Suresh Prasad when he was taken in police remand and remained in the police custody on 03.12.1989. A bloodstained bed sheet was also discovered and recovered on the instance of the accused/appellant, which also corroborates the prosecution story. Thus, as per evidence discussed above,