IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL* Criminal Appeal No. 60 of 2011 Bhupesh Ram S/o Pratap Ram R/o Village Bhakadpanth Patwari Kshetra Bajina, T ehsil Kanda, District Bageshwar. ...…………. Appellant (in jail) Versus State of Uttarakhand ...…………. Respondent Mr. Rajeev Sharma, Advocate, present for the appellant. Mr. Amit Bhatt, Addl. Govt. Advocate, present for the State. Mr. Sandeep Tandon, Advocate, with Ms. Deepa Arya, Advocate, present for the complainant. Coram : Hon’ble Prafulla C. Pant, J. Hon’ble Sudhanshu Dhulia, J. Prafulla C. Pant, J. (oral) This appeal, preferred under Section 374 of the Code of Criminal Procedure, 1973 (for short Cr.P.C.), is directed against the judgment and order dated 1st of March 2011, passed by Sessions Judge, Bageshwar, in Sessions Trial No. 22 of 2010, whereby said court has convicted accused / appellant Bhupesh Ram under 2 Section 302 of the Indian Penal Code, 1860 (for short I.P.C.), and sentenced him to imprisonment for life. 2) Heard learned counsel for the parties and perused the lower court record. 3) Prosecution story, in brief, is that on 01.09.2010, it was day of ‘KRISHNA JANMASHTAMI’. In the fields of village Sitoli Bhakadpanth, in District Bageshwar, some students and children started playing cricket at about 10:00 A.M. At about 11:00 A.M., accused / appellant Bhupesh Ram started batting. One Pawan Kumar was bowling, and another Pawan Kumar was keeping wickets. Prakash Ram (deceased) was standing on fielding position. When a ball after touching the bat caught by the wicketkeeper, the bowler and fielders shouted that Bhupesh Ram was out. But, he did not agree with the decision. Due to that reason quarrel started between Bhupesh Ram and Pawan (wicketkeeper) and others. Prakash Ram sided with the wicketkeeper. Bhupesh Ram, thereafter went to his nearby house, and after sometime came back at around 11:30 A.M., snatched the bat from one of the players, and gave blow on the head of Prakash Ram. Injured Prakash Ram fell down and started vomiting blood. This stopped the game. Injured was taken to District Hospital, Bageshwar, where his injuries were examined by P.W. 5 Dr. Jitendra Bhatt, at about 02:45 P.M. (on 01.09.2010). 3 After preparing injury report (Ext. A –3), since the condition of the patient was getting serious, the Medical Officer referred him for further treatment to higher center. On 02.09.2010, injured Prakash Ram was admitted in Krishna Nursing Home, Haldwani. There he was kept in Intensive Care Unit, and preparation started for surgery. On 3rd of September 2010, P.W. 1 Mohan Ram (uncle of the deceased) gave a written report (Ext. A –1) to the Naib Tehsildar, Kanda (District Bageshwar) to get lodged first information report. (In Uttarakhand hills vide U.P. Government Notification No. 494 / VIII –418 –16 dated 7th March 1916, certain revenue officials are given police powers). On the basis of said report, Naib Tehsildar, Kanda, registered Crime No. 04 of 2010, relating to offence punishable under Section 307 of I.P.C. against accused Bhupesh Ram, and prepared check report (Ext. A –11) on 03.09.2010, at 06:00 P.M. On the next day i.e. 04.09.2010, Prakash Ram succumbed to injuries in the hospital at Haldwani. The local police at Haldwani took the dead body of deceased in their possession, and got prepared inquest report (Ext. A –5) with the help of Asstt. Sub Inspector Kewalanand Pathak (P.W. 6), who not only prepared the inquest report, but also prepared other necessary papers like sketch of the dead body (Ext. A –6), police form No. 13 (Ext. A –7), sample seal (Ext. A –8), and letter to the Chief Medical Officer (Ext. A –9) requesting for postmortem examination. It appears that the dead body was sent in sealed condition 4 for postmortem examination. P.W. 7 Dr. S. Anwar of Base Hospital, Haldwani, conducted postmortem examination on the dead body of Prakash Ram on 04.09.2010, at 03:00 P.M. He recorded the ante mortem injuries on the head of the deceased. In the autopsy report (Ext. A –10), said Medical Officer opined that deceased had died of shock and haemorrhage leading to coma, as a result of ante mortem head injuries. Meanwhile, P.W. 8 Balwant Singh Rawat, Naib Tehsildar, interrogated the witnesses and inspected the site. He arrested the accused, and bat used in the crime was also recovered during investigation. On completion of investigation, charge sheet (Ext. A –15) was filed by the Investigating Officer against Bhupesh Ram (accused / appellant), for his trial in respect of offence punishable under Section 302 of I.P.C. 4) The Chief Judicial Magistrate, Bageshwar, 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 Sessions Judge, Bageshwar, on 21.12.2010, after hearing the parties, framed charge of offence punishable under Section 302 of I.P.C. against accused Bhupesh Ram, who pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1 Mohan Ram (informant), P.W. 2 Pankaj Kumar 5 (an eyewitness); P.W. 3 Amit Kumar (another eyewitness); P.W. 4 Tari Ram (witness of preparation of inquest report); P.W. 5 Dr. Jitendra Bhatt (who recorded injury on the head of Prakash Ram in the District Hospital, Bageshwar, on 01.09.2010; prepared injury report and referred the injured for further treatment to higher center); P.W. 6 Asstt. Sub Inspector Kewalanand Pathak (who prepared the inquest report and other necessary papers); P.W. 7 Dr. S. Anwar (who conducted postmortem examination); and P.W. 8 Balwant Singh Rawat, Naib Tehsildar (who investigated the crime). The oral and documentary evidence was put to the accused under Section 313 of Cr.P.C., in reply to which he alleged that he has been falsely implicated due to enmity. However, no evidence in defence was adduced. The trial court, after hearing the parties, found that the prosecution has successfully proved charge of offence punishable under Section 302 of I.P.C. against the accused Bhupesh Ram, and convicted him accordingly. After hearing on sentence, the convict was sentenced to imprisonment for life. Aggrieved by said judgment and order dated 1st of March 2011, passed by Sessions Judge, Bageshwar, this appeal is preferred by the convict. 5) Before further discussion, we think it just and proper to mention the injuries found on the person of Prakash Ram by P.W. 5 Dr. Jitendra Bhatt in District Hospital, Bageshwar, on 01.09.2010. The injuries 6 mentioned in the injury report (Ext. A –3) prepared by P.W. 5 Dr. Jitendra Bhatt are being reproduced below: “i) Swelling on the back of the scalp. ii) Bruise on the back of the chest.” P.W. 5 Dr. Jitendra Bhatt has stated that the above injuries could have been caused on 01.09.2010, at about 11:30 A.M. He has further stated that the injuries could have been caused by a cricket bat (Ext. 1). In the cross- examination, this witness has stated that the injury on the head of Prakash Ram could not have been caused by fall. The statement of aforesaid Medical Officer read with the injury report establishes that Prakash Ram did receive injury on his head on 01.09.2010, at about 11:30 A.M. 6) The autopsy report (Ext. A –10), prepared by P.W. 7 Dr. S. Anwar, on 04.09.2010, at 03:00 P.M., discloses following ante mortem injuries corroborating the injury No. 1 recorded earlier by P.W. 5 Dr. Jitendra Bhatt, on 01.09.2010. The ante mortem injury from the postmortem report (Ext. A –10) is being reproduced below :- “ i) Whole of the head was bandaged, on opening the bandage a stitched wound of semi lunar shape was noticed at the antero lateral parietal aspect of scalp right side, on further exploration a lacerated wound of 27 7 cm X 3 cm X bone deep was seen at the antero lateral aspect of parietal region of right side of scalp, on further exploration fracture of right parietal as well as right temporal bone was noticed with the protusion of right side of brain matter and the rupture of meninges seen.” P.W. 7 Dr. S. Anwar has opined in the autopsy report (Ext. A –10) that deceased had died of shock and haemorrhage leading to coma, as a result of ante mortem head injuries. From the medical evidence discussed above read with the statement of P.W. 5 Dr. Jitendra Bhatt and statement of P.W. 7 Dr. S. Anwar, it is established on the record that Prakash Ram has died homicidal death. Now, this court has to see whether, accused Bhupesh Ram committed murder of Prakash Ram as suggested by prosecution, or not. We have also to examine whether, the act on the part of the accused, if any, constitutes culpable homicide not amounting to murder, or not. 7) P.W. 1 Mohan Ram is uncle of the deceased, who is not an eyewitness. He has simply lodged first information report with the revenue police by giving written report (Ext. A –1) to the Naib Tehsildar, Kanda. This witness has stated that on 01.09.2010, when he came back to the village in the evening, he was told that Prakash (deceased) had gone to play cricket to Sitoli, 8 where a quarrel took place between the players, and accused Bhupesh Ram assaulted Prakash with a cricket bat, on which Prakash fell down, got unconscious, and started vomiting blood. This witness has further stated that on 02.09.2010, he was informed on phone that Prakash Ram was lying in unconscious condition in Intensive Care Unit in a nursing home at Haldwani, and money is needed for his surgery. In the cross- examination, this witness has stated that accused Bhupesh Ram and Prakash Ram (deceased) used to go to school together. 8) P.W. 2 Pankaj Kumar and P.W. 3 Amit Kumar are the two eyewitnesses, who were got examined on behalf of prosecution to narrate the prosecution story. Both these witnesses have stated that on 01.09.2010, the accused, the deceased, these two witnesses and some others were playing cricket in a field in village Sitoli. Both these eyewitnesses have told that at about 11:30 A.M., Bhupesh Ram was batting and on bowling of one Pawan Kumar, Bhupesh Ram popped a catch which was taken by another Pawan Kumar, who was keeping wickets. But Bhupesh Ram declined to accept that he was out. On this quarrel took place between players, and Prakash Ram (deceased) took side of wicketkeeper Pawan Kumar. According to the above two eyewitnesses examined before the trial court, Bhupesh Ram went to his house, came back, snatched cricket bat, and gave a blow with it on the head of 9 Prakash Ram. P.W. 2 Pankaj Kumar and P.W. 3 Amit Kumar have stated that after Prakash Ram got injured he got unconscious and taken to hospital. P.W. 2 Pankaj Kumar has further stated that the bat with which Bhupesh Ram assaulted Prakash Ram was given to the Naib Tehsilder during investigation. He (P.W. 2) identified said bat (Ext. 1) in the court. P.W. 3 Amit Kumar also identified the bat (Ext. 1). These eyewitnesses were subjected to cross-examination, but nothing has come out in their statements which creates doubt in their testimony. The statement of the two eyewitnesses gets fully corroborated from the medical evidence already discussed above. 9) P.W. 4 Tari Ram and P.W. 6 Asstt. Sub Inspector Kewalanand Pathak are the two witnesses who have proved the fact that after death of Prakash Ram on 04.09.2010, at Haldwani, his dead body was taken in to possession by the police, and inquest report (Ext. A –5) was prepared. P.W. 6 Asstt. Sub Inspector Kewalanand Pathak has further stated that the sealed dead body was sent for postmortem examination on the very day along with necessary papers. P.W. 8 Balwant Singh Rawat, Naib Tehsildar, has stated that after receiving written report of the incident on 03.09.2010, at 06:00 P.M., he registered the crime in respect of offence punishable under Section 307 of I.P.C., and prepared check report (Ext. A –11). He has further stated that he interrogated the witnesses. He has further 10 told that after death of Prakash Ram on 04.09.2010, the crime was converted into one punishable under Section 302 of I.P.C. P.W. 8 Balwant Singh Rawat, Naib Tehsildar, has further told that during investigation cricket bat (Ext. 1) by which Bhupesh Ram gave a blow on the head of Prakash Ram was recovered, and recovery memorandum (Ext. A –2) was prepared. 10) Having gone through the entire evidence on record, and after re-appreciating the same, we are of the view that it is proved on the record beyond reasonable doubt that accused / appellant Bhupesh Ram gave a blow on the head of Prakash Ram on 01.09.2010, at 11:30 A.M., in village Sitoli at the time they were playing cricket, due to which the injured succumbed to injuries on 04.09.2010, in Haldwani, during his treatment. In our opinion, the act on the part of the accused / appellant Bhupesh Ram constitutes offence of culpable homicide not amounting to murder. Exception 4 to Section 300 of I.P.C. reads as under:- “Exception 4. –Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.” 11 11) Section 304 of I.P.C. provides punishment for culpable homicide not amounting to murder. There are two paragraphs in said Section. The second paragraph relates to culpable homicide not amounting to murder where the act is done with the knowledge that it is likely to cause death but without any intention to cause death or to cause such bodily injury as is likely to cause death. This paragraph of Section 304 of I.P.C. provides that a person committing culpable homicide not amounting to murder of that nature can be sentenced to imprisonment for a period of ten years or with fine or with both. Considering the facts that – (i) incident took place on 01.09.2010, and death took place on 04.09.2010, (ii) there was no enmity between the accused and deceased, and they were schoolmates, (iii) the quarrel took place while the accused, deceased, and others were playing cricket in the field, and (iv) in a heat of passion accused Bhupesh Ram gave a blow with cricket bat on the head of deceased, makes us believe that the accused / appellant Bhupesh Ram is guilty of charge of offence punishable under Section 304 Part II of I.P.C., and in the circumstances of the case liable to be sentenced to rigorous imprisonment for a period of five years which would meet the ends of justice. 12) Accordingly, the appeal is partly allowed. The conviction and sentence recorded by the trial court (Sessions Judge, Bageshwar) in Sessions Trial No. 22 of 2010, convicting and sentencing accused Bhupesh 12 Ram under Section 302 of I.P.C., is set aside. Instead, the accused / appellant Bhupesh Ram is convicted under Section 304 Part II of I.P.C., and sentenced to rigorous imprisonment for a period of five years. He is in jail. Let a copy of this judgment be sent to the Superintendent of the jail concerned. Lower court record be sent back. (Sudhanshu Dhulia, J.) (Prafulla C. Pant, J.) Dt. June 15, 2011. H. Negi * Approved for reporting