HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal no. 1242 of 2001 (Old no. 570 of 1990) 1. Udai Singh S/o Gabar Singh, 2. Govind Singh S/o Gabar Singh, Both R/o village Singhata, Patwari Kshetra Pathalidhar, Tehsil Ukhimath, Distt. Chamoli. ------- Accused/appellants. Versus The State. ------- Respondent Sri R.P. Nautiyall, learned counsel for the appellants, Sri Harish Pujari, learned Addl. Govt. Advocate for the State, Sri G.S. Negi, learned counsel for the complainant. Dated: June 13, 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 13.03.1990 passed by Sessions Judge, Chamoli in Sessions Trial no. 13 of 1989 State vs. Udai Singh and another, whereby the learned Sessions Judge has convicted the accused/appellants Udai Singh and Govind Singh for the offence punishable u/s 307 read with Section 34 of The Indian Penal Code, 1860 (hereinafter referred to as the I.P.C.) and sentenced both of them to undergo rigorous imprisonment for a period of 5 years’. The accused/ appellants were acquitted for the offence punishable u/s 392 I.P.C. 2. I have heard Sri R.P. Nautiyal, learned counsel for the accused/appellants, Sri Harish Pujari, learned Addl. Govt. Advocate for the State and Sri G.S. Negi, learned counsel for the complainant. 3. The prosecution case, in brief, is that on 17.08.1988 at about 2:00 p.m. when the complainant PW-1 Raghuvir Singh, after shutting his shop was going to his home then the accused/appellant Udai Sing met with him in the way. Brother of the accused Udai Singh had taken some items on loan from the shop of the complainant therefore, the complainant Raghuvir Singh asked money from Udai Singh which was due on Vijay Singh (brother of the accused Udai Singh). On which Udai Singh asked him to come at his home and he would pay the money. The complainant has started to go alongwith Udai Singh towards his house. Then the accused/appellant Udai Singh asked Raghuvir Singh to stay on the way. On this assurance, the complainant Raghuvir Singh sat under a tree. After some time, the accused/appellant Udai Singh alongwith Govind Singh and two others reached on the spot who were armed with DANDAS and they have started beating Raghuvir Singh with DANDAS and stones. In the meanwhile PW-2 Yashwant Singh- son of the complainant reached on the place of occurrence and he tried to intervene but the accused persons had also caused injuries to Yashwant Singh. It is further averted that the accused/ appellants have snatched Rs. 1,000/- and one H.M.T. watch from the complainant. When Sri Kashi Ram- Forest guard and PW-3 Virendra Singh reached on the place of occurrence, the accused persons fled from of place of incident. With the same averments the First Information Ext. Ka-1 was lodged by PW-1 complainant Raghuvir Singh to the Patwari, Patwari Circle Pathlidhar on 18.08.1988 at 6:00 p.m. On the basis of the written report Ext. Ka-1, the Chik First Information Report Ext. Ka-5 was prepared by PW-5 Sri Balram Bhatt Patti Patwari-Pathlidhar on 18.08.08.1988 at 6:00 p.m. u/s 307, 325, 392 I.P.C An entry was made in the G.D. a copy of G.D. is Ext. Ka-6. The complainant-injured Raghuvir Singh was medically examined on 17.08.1988 at 8:30 p.m. at Primary Health Centre, Agustmuni and PW-4 Dr. Dinesh Joshi, Medical Officer has prepared a medical report Ext. Ka-2 in this regard. The injured Yashwant Singh- PW-2 was also examined on the same day at 9:00 p.m. by PW-4 Dr. Dinesh Joshi, who prepared medical report Ext. Ka-3 in this regard. During the course of investigation, the Investigating Officer PW-5 Balram Bhatt, Patwari of the Circle, after making spot inspection prepared site-plan of the place of occurrence. The site plan is Ext. Ka-7 on the record. During investigation the statements of the witnesses were recorded and after completing investigation, charge sheet Ext. Ka-10 was submitted on 29.12.1988 by the Investigating Officer against the accused/appellants u/s 307/34, 325 I.P.C. 4. Learned Chief Judicial Magistrate, Chamoli on receipt of the charge sheet, after giving necessary copies to the accused persons as required u/s 207 Cr.P.C., committed the case to the Court of Sessions for trial on 26.07.1989. 5. On 12.09.1989, the learned Sessions Judge, Chamoli after hearing the parties framed the charge of offence punishable u/s 307 read with Section 34 and 392 I.P.C. against the accused persons Udai Singh and Govind Singh. The charge was read over and explained to the accused persons who pleaded not guilty and claimed to be tried. 6. In order to prove its case, the prosecution has examined PW-1 Raghuvir Singh-complainant and the injured, PW-2 Yashwant Singh-injured, PW-3 Virendra Singh, PW-4 Dr. Dinesh Joshi and PW-5 Balram Bhatt-Patwari and Investigating Officer. 7. The oral and documentary evidence was put to the accused persons in the form of questions u/s 313 Cr.P.C. who, in reply, denied the allegations made against them and have stated that they have been falsely implicated in the case. Oral evidence of DW-1 Subodhini Devi was produced in defence of the accused/appellants. 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/appellants Udai Singh and Govind Singh for the offence punishable u/s 307 read with Section 34 I.P.C. and sentenced both of them to undergo rigorous imprisonment for a period of 5 years’. The accused/ appellants were acquitted for the offence punishable u/s 392 I.P.C. Aggrieved with the conviction and sentence awarded to them, the accused/ appellants have preferred this appeal. 9. Before further discussion, it is pertinent to mention the injuries found in the person of the injured Raghuvir Singh. The complainant-injured Raghuvir Singh was medically examined on 17.08.1988 at 8:30 p.m. at Primary Health Centre, Agustmuni and PW-4 Dr. Dinesh Joshi, Medical Officer has prepared a medical report Ext. Ka-2 in this regard. The following injuries were found on the body of the injured Raghuvir Singh:- 1. A lacerated wound measuring 5cm. x 1cm. x skin deep on mid of frontal region of scalp wound covered with clotted blood after cleaning fresh bleeding is there, edges irregular, 2. A lacerated wound measuring 5.5cm. x 5cm. x skin deep on left side of frontal region of scalp covered with clotted blood, edges irregular, 3. A lacerated wound measuring 4cm. x 1cm. x skin deep on left side of forehead it is 5cm. above the left eyebrow, edged irregular, 4. A lacerated wound measuring 3cm. x 1cm. x skin deep on left side of forehead, it is 1.5 cm. above the left eyebrow, edges irregular, 5. A lacerated wound measuring 2cm. x 1 cm. x skin deep on lateral side of left eyebrow, wound covered with clotted blood, edges irregular, 6. A large contusion with abrasion in the middle measuring 10cm. x 5cm. on left shoulder contusion present, colour reddish, 7. Multiple contusion on posterior aspect of left forearm, colour reddish, 8. A lacerated wound measuring 2cm. x 1.5cm. x skin deep on posterior aspect of left palm just at the root of left thumb, edges irregular, 9. A contusion measuring 12cm. x 2cm. with swelling and tenderness on left lateral region of abdomen on left lumber region, colour reddish, 10. A contusion measuring 13cm. x 2cm. on left side of chest extending from left nipple to upper region of abdomen, 11. A contusion measuring 6cm. x 3cm on upper side of right chest. It is 10cms above the right nipple, colour reddish. The doctor has opined that the patient was semi conscious at the time of medical examination. It is further opined that all the injuries were simple and were caused by blunt object and duration was within 12 hrs. 10. The injured Yashwant Singh- PW-2 was also examined on the same day at 9:00 p.m. by PW-4 Dr. Dinesh Joshi, who prepared medical report Ext. Ka-3 in this regard. The following injuries were found on the body of the injured Yashwant Singh:- 1. A contusion measuring 9cm. x 2cm. with swelling and tenderness on medial aspect of left forearm extending upward from left wrist. Colour of contusion reddish, 2. An abrasion measuring 3cm. x 2cm. with swelling and tenderness on lateral aspect of left knee. The doctor has opined that the patient was fully conscious at the time of medical examination. The doctor has further opined that all the injuries were simple. The injury no.1 could be caused by blunt object and injury no.2 could be caused by friction. Duration was within 12hrs. 11. The prosecution to prove its case, first of all, has examined PW-1 Raghuvir Singh, the complainant and an injured witness, who has stated that the accused/appellants Udai Singh and Govind Singh are known to him. He has a shop in which he sales clothes. Brother of the accused Udai Singh, namely Vijay Singh who did not reside in the village had taken some cloth articles from his shop on loan and some money was balance upon Vijay Singh. On 17.08.1988 at about 2:00 p.m., after shutting his shop he was going to his house. In the way the accused Udai Singh met with him and the complainant asked the money which was balance upon the brother of accused Udai Singh. On this, the accused Udai Singh said to him to accompany him to his home and he would pay him the money. Then he proceeded towards the house of the accused Udai Singh. When he reached at an isolated place, then the accused told him to stay there as he was going to take money from his house. After some time the accused Udai Singh had come towards the reverse side on the place of occurrence alongwith the accused Govind Singh, his mother and wife armed with DANDAS in their hands. After reaching on the place of occurrence, the accused/appellants assaulted him with DANDAS and the mother of accused Udai Singh pelted stones on him. In the meantime his son Yashwant Singh also reached there and he tried to intervene and to save him, but the accused persons also gave beating to him causing injuries on his person. The accused persons fled from the place of occurrence on reaching of one Forest Guard Kashi Ram and PW-3 Virendra Singh on the place of occurrence. He was taken to the P.H.C. Augustmuni Hospital where he was medically examined. With the same averments he lodge the First Information Report Ext. Ka-1 to the Patti Patwari of the Circle on 18.08.1988 at 6:00 p.m. This witness was cross-examined by the defence counsel 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. PW-2 Yashwant Singh, who is also injured in the said incident, has categorically supported the evidence of PW-1 Raghuvir Singh. Evidence of the PW-1 Raghuvir Singh further gets corroboration from the evidence of PW-3 Virendra Singh-independent witness, PW-4 Dr. Dinesh Joshi Medical Officer, Primary Health Centre, Augustmuni who conducted medical examination on the person of injured PW-1 Raghuvir Singh and PW-2 Yashwant Singh on 17.08.1988 at 8:30 p.m. and 9:00 p.m. respectively and in this regard he also proved the medical reports Ext. Ka-2 and Ka-3 prepared by him. PW-5 is the Investigating Officer Balram Bhatt-Patti Patwari of the Circle, who during investigation has recorded statements of the witnesses and after completing investigation has filed charge sheet Ext. Ka-10 against the accused/appellants. 12. The oral and documentary evidence in question form was put to the accused/appellants u/s 313 Cr.P.C. who has denied the allegations made against them and have stated that they have been falsely implicated in the case. In the defence the accused/appellants adduced evidence of DW-1 Subodhini W/o Vijay Singh. 13. Learned Counsel for the accused/appellants Sri R.P. Nautiyal, has argued that the as per the evidence produced by the prosecution, no case of the offence punishable u/s 307 read with Section 34 I.P.C. is made out against the accused/ appellants instead an offence punishable u/s 324 read with Section 34 I.P.C. can be said to have been made against the accused/appellants. He has further submitted that in the injury reports merely it is mentioned that the injuries found in the person of the injured Raghuvir Singh and Yashwant Singh were simple in nature. Further in the First Information Report as well in the evidence of the witnesses examined before the Trial Court it does not came out that the accused/appellants have caused injuries to the injured with the intention and knowledge to kill the complainant Raghuvir Singh and Yashwant Singh. Even the Medical Officer PW-4 Dr. Dinesh Joshi in his testimony has stated that the injuries found on the persons of injured were simple in nature and no such injury was found which could be dangerous to the life of the injured persons. At this stage, learned Addl. Govt. Advocate Sri Harish Pujari has submitted that even if the offence punishable u/s 307 read with Section 34 I.P.C. is not proved, the offence punishable u/s 324 read with Section 34 I.P.C. is sufficiently proved against the accused/ appellant beyond reasonable doubt on the basis of the evidence produced by the prosecution. 14. In the above circumstances and from over all assessment of the evidence produced by the prosecution it can be said that neither the prosecution witnesses have clearly deposed that the accused persons have the intention to kill Raghuvir Singh or Yashwant Singh in commission of the crime on the date, time and place when the incident alleged said to have been taken place, nor the injuries found on the body of these injured persons, at the time they were medically examined, were dangerous to life rather the injuries were found simple in nature, therefore, as alleged by the prosecution no offence punishable u/s 307 read with Section 34 I.P.C. is made out against the accused/appellants, instead it is proved beyond reasonable doubt that the offence punishable u/s 324 read with Section 34 I.P.C. is proved against the accused/appellants. 15. Learned counsel for the parties have prayed that they may be permitted to file compromise arrived at in between the parties and the compromise so filed may be accepted. From the above discussions it has come out that merely the offence punishable u/s 324 read with Section 34 I.P.C. is made out against the accused/appellants, therefore considering the facts and circumstances of the case and in the interest of justice permission as sought for is granted. The parties are allowed to file compromise. 16. In this regard the parties have moved a compromise application no. 196/2008 before this Court which is supported with the accompanied affidavits sworn in combined by Udai Singh-accused and Raghuvir Singh-Complainant on 2nd April 2008. Another Misc. Application no. 440/2008 has been moved jointly for compounding the matter with the prayer that as the parties have entered into a compromise therefore, the appeal may be decided in terms of the compromise arrived at between the parties, alongwith this application affidavits of accused Govind Singh and injured Yashwant Singh are annexed. A photo state copy of the original compromise is annexed with the application in which it is stated that in this appeal, both the parties have entered into a compromise on 14.03.2008 and both the parties are living peacefully in the village. There remained no grudge in between the parties and the parties are agreed to live peacefully in future. Accordingly, the compromise is accepted. 17. Therefore, on the basis of the compromise arrived at between the parties the appeal deserves to be allowed, consequently the judgment & order dated 13.03.1990 passed by the Sessions Judge, Chamoli in Sessions Trial no. 13 of 1989, deserve to be set-aside. 18. Accordingly, the appeal is allowed. Judgment & order dated 13.03.1990 passed by the Sessions Judge, Chamoli in Sessions Trial no. 13 of 1989, is hereby set-aside. The accused/ appellants Udai Singh and Govind Sing are acquitted of the offence punishable u/s 324 read with Section 34 I.P.C on the basis of the compromise arrived at in between the parties. The accused persons are on bail, they need not to surrender. Sureties are discharged. 19. Let a copy of this judgment, along with the record of the Court below, be sent back to the Trial Court. NCM: (Dharam Veer, J.) 13.06.2008