IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No.959 of 2001 (Old No. 1820 of 1994) Kewal Singh .…. Appellant/Accused Versus The State …………… Respondent March 2, 2009 Mr. Prabhakar Joshi, Advocate holding brief of Mr. B.S. Negi, l rned Counsel for the appellant. ea Mr. M.A. Khan, learned Brief Holder for the State/respondent. HON’BLE DHARAM VEER, J. This appeal, preferred by the appellant u/s 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.), is directed against the judgment and order dated 9.8.1994 passed by the Sessions Judge, Nainital in Sessions Trial No.206 of 1992, State v. Kewal Singh, whereby the learned Sessions Judge has convicted the appellant-Kewal Singh under Section 324 of The Indian Penal Code, 1860 (for short, I.P.C.) and sentenced him to undergo six months’ R.I. with fine of Rs. 2000/- and in case of default in the payment of fine, three months’ further R.I. was awarded. It was also directed by the learned Sessions Judge, Nainital that if the above imposed fine of Rs. 2000/- is recovered, the same shall be paid to Manoj Singh as compensation to his injuries. 2. In brief, the prosecution case is that on 16.10.1991 at about 9 P.M., the complainant Girish Chandra along with his brother Manoj Singh and friend Dev Singh, Bhagat Singh, Man Singh and Bhagirath Singh had gone to see a picture at Menka picture hall. While Manoj Singh was standing in the line to purchase the movie tickets, the appellant-accused came there and tried to stand in the line ahead of Manoj Singh. The appellant-accused was resisted by Manoj Singh, on 2 this the appellant-accused took out a knife from his pocket and with an intention to kill him, the appellant- accused assaulted Manoj Singh with a knife and thereby caused injuries in his stomach. Thereafter the appellant- accused tried to run away from the spot, but he was caught hold by the complainant Girish Chandra and other companions. But the knife used for stabbing the injured Manoj Singh could not be recovered from the spot as it was thrown away somewhere else by the appellant- accused. Thereafter appellant-accused was brought to the Sittarganj police station by the complainant Girish Chandra (PW-2) and his other companions and injured Manoj Singh was taken to the hospital by Bhagat Singh. 3. With the above-mentioned averments PW-2 Girish Chandra lodged the F.I.R. (Ex. Ka-1) at Sittarganj police station on 16.10.1991. On the basis of this F.I.R. Ex. Ka- 1, the chick F.I.R. Ex. Ka-2 was prepared by Head Moharrir Shankar Nath (PW-4) on 16.10.1991 at 10.10 P.M. Necessary entries were made in the G.D. The carbon copy of the G.D. is Ex. Ka-3. 4. The injured Manoj Singh, PW-1 was medically examined by PW-5 Dr. P.C. Pandey on 16.10.1991 at 9.25 P.M. and the medical report of the injuries Ex. Ka-4 was prepared by him. Thereafter supplementary report was also prepared by PW-5 Dr. P.C. Pandey, which is Ex. Ka-5. 5. The investigation of this case was entrusted to S.I. Laxman Singh (PW-6), who during the course of investigation took into his possession the blood-stained clothes of the injured Manoj Singh and prepared a recovery memo Ex. Ka-6. PW-6, S.I. Laxman Singh also inspected the place of occurrence and prepared the site 3 plan Ex. Ka-7. The statements of the witnesses were recorded by the I.O. (PW-6) during the course of investigation. After completion of the investigation, a chargesheet under Section 307 IPC was filed on 17.10.1991 against the appellant-accused. The said chargesheet is Ex. Ka-8. 6. Thereafter learned Munsif-Magistrate, Khatima, after giving the necessary copies of the documents to the appellant-accused as prescribed under Section 207 Cr.P.C., committed the case to the Court of Sessions on 14.8.1992. 7. Learned Sessions Judge framed the charge on 14.9.1993 against the appellant-accused under Section 307 I.P.C. The charge was read over and explained to the appellant-accused, who pleaded not guilty and claimed to be tried. 8. To prove its case, the prosecution examined PW-1 Manoj Singh, the injured witness; PW-2 Girish Chandra, an eye witness; PW-3 Dev Singh, another eyewitness; PW- 4 Head Constable Shankar Nath who had prepared the chick F.I.R. Ex. Ka-2 and also made the necessary entries in the G.D., copy of which is Ex. Ka-3; PW-5 Dr. P.C. Pandey who had examined the injured PW-1 Manoj Singh and prepared the medical report Ex. Ka-4 as well as supplementary report Ex. Ka-5 and PW-6 S.I. Laxman Singh, the I.O. of the case who had investigated the crime. 9. Thereafter, the statement of the appellant-accused Kewal Singh was recorded under Section 313 of Cr.P.C. The oral and documentary evidence were put to the 4 appellant in question form, who denied the allegations made against him. However, the appellant-accused did not produce any oral or documentary evidence in his defence. 10. After hearing learned counsel for the parties and appreciating the evidence on record, the learned Sessions Judge, Nainital vide his judgment and order dated 9.8.1994 convicted the appellant Kewal Singh under Section 324 of I.P.C. and sentenced him to undergo six months’ R.I. with fine of Rs. 2000/- to be paid to the injured Manoj Singh, PW-1 in lieu of the compensation of the injuries sustained by him and in case of default in payment of fine, further three months’ R.I. was awarded. Against the aforesaid judgment and order dated 9.8.1994, the appellant-accused has preferred the present appeal. 11. I have heard learned Counsel for the parties and have carefully perused the entire material available on the record. 12. Before further discussion, it would be pertinent to mention here the injuries sustained by the injured Manoj Singh, PW-1 who was medically examined by PW-5 Dr. P.C. Pandey on 16.10.1991 at 9.25 P.M. The injuries found on the body of PW-1 Manoj Singh are reproduced as under: “Injuries : (1) 2cm x 1/2cm x 1cm deep clean-cut incised wound left side abdomen wall, 3cm above and outwardly to the naval fatty mass below is also cut. Oozing of blood from it. Kept under observation for any further complications. Advised X-ray if any further complications. 5 Opinion : Injury No. (1) caused by sharp cutting object Fresh, K.U.O.” 13. PW-5 Dr. P.C. Pandey also prepared a supplementary report which is reproduced as under: “X-ray done at UPHC Kichha on 17/10/91. Shows gas under Diaphram at Rt. Side. It means there was perforation in the gastro- intestinal tract hence the injury no. (1) of original injury report was a dangerous injury. Final opinion will be give by Surgeon UPHC Kichha who is attending the case.” 14. To prove the above-mentioned injury report Ex. Ka-4 and supplementary report Ex. Ka-5, the prosecution has examined PW-5 Dr. P.C. Pandey, who has proved these reports. This witness has further stated that injuries inflicted upon the injured Manoj Singh (PW-1) could have been caused to the injured with a knife on 16.10.1991 at about 9 P.M. 15. To further prove its case, the prosecution has examined PW-1, injured Manoj Singh who has stated that on the date of the incident i.e. 16.10.1991 at about 9 P.M. he had gone to see a movie at Menka Talkies, Sittarganj along with his brother Girish Chandra and friend Dev Singh. While he was in the queue in order to purchase the movie tickets, appellant-accused Kewal Singh reached there and tried to stand ahead of him in the line. When he opposed the said act of appellant-accused, then the appellant-accused took out a knife from his pocket and stabbed him in the stomach and thus injured him. Thereafter the appellant-accused tried to flee from the spot but he was captured by his brother Girish Chandra (PW-2) and other companions. This 6 witness has further stated that Bhagat Singh had brought him to the hospital and rest of his companions went to the police station. Blood was oozing out of his stomach. On the very next day i.e. on 17.10.1991, the Investigating Officer had taken his blood-stained Baniyan, Bushirt and a sweater into his possession. This witness was cross- examined at length by the defence counsel but he could not be shaken in his cross-examination and nothing has come out in his statement which may create any doubt about his statement. The statement of this witness is reliable and believable. 16. PW-2 Girish Chandra, the eyewitness, is the brother of the injured Manoj Singh, PW-1. This witness had lodged the F.I.R. in the Sittarganj police station and has proved that report Ex. Ka-1. PW-2 Girish Chandra in his deposition has reiterated the same story about the incident as stated above by PW-1 in his examination. Nothing has come in his deposition which may create any doubt about his version. 17. PW-3 Dev Singh, who is also an eyewitness of the incident, has stated similar to PW-1 Manoj Singh and PW- 2 Girish Chandra and nothing has surfaced in his deposition which may create any doubt about his statement. 18. PW-4 Head Constable Shankar Nath has stated that on 16.10.1991 he was posted at Sittarganj police station. On that day, at about 22.10 P.M., PW-2 Girish Chandra had come to the police station and lodged the F.I.R. Ex. Ka-1, on the basis of which he had prepared the Chick F.I.R. Ex. Ka-2 and made the necessary entries in the G.D., the carbon copy of which is Ex. Ka-3. This witness 7 has further stated that the appellant-accused was taken into policy custody after preparation of the Chick F.I.R. 19. PW-6 Laxman Singh has stated that on 16.10.1991 he was posted as Sub Inspector in the Sittarganj police station. The investigation of this case was handed over to him. During the course of investigation he had recorded the statements of the witnesses and had also taken into his possession the blood-stained Baniyan, Bushirt and a sweater of the injured Manoj Singh (PW-1) and prepared the Fard Ex. Ka-6. After inspecting the place of occurrence, he had prepared the site plan Ex. Ka-7 and thereafter submitted the chargesheet Ex. Ka-8. 20. After that the statement of the appellant-accused was recorded under Section 313 of Cr.P.C. The oral and documentary evidence were put to the appellant in question form, who denied the allegations made against him. However, the appellant-accused did not produce any oral or documentary evidence in his defence. 21. Learned Counsel for the appellant has submitted that the prosecution has not proved the case against the accused Kewal Singh beyond reasonable doubt. I do not find any substance in the argument of the learned Counsel for the appellant as from the evidence discussed above the case stands proved against the appellant- accused and learned Sessions Judge has rightly convicted the appellant-accused under Section 324 of I.P.C. It is established from the evidence discussed above that PW-1 Manoj Singh along with his brother Girish Chandra (PW-2) and other friends had gone to see the movie in the Menka Talkies, Sittarganj and when he was waiting in the line to purchase the movie tickets, the appellant-accused Kewal Singh came there and tried to move ahead of Manoj Singh 8 in the line. When PW-1 Manoj Singh resisted the appellant-accused, Manoj Singh was stabbed with a knife by the appellant-accused. The stomach of the PW-1 Manoj Singh soon started bleeding and the clothes that he was wearing got stained with his blood. When the appellant-accused tried to escape, he was captured by PW-2 Girish Chandra and other companions. On reaching the hospital, PW-5 Dr. P.C. Pandey examined the injuries suffered by Manoj Singh and prepared the injury report Ex. Ka-4 and supplementary report Ex. Ka-5. 22. The oral evidence of PW-1 Manoj Singh, the injured, is corroborated by the testimony of PW-2 Girish Chandra, PW-3 Dev Singh, which is further substantiated from injury report Ex. Ka-4 and supplementary report Ex. Ka-5 and statement of PW-5 Dr. P.C. Pandey. 23. Thus, from the evidence discussed above, the prosecution has proved its case beyond reasonable doubt against the appellant-accused under Section 324 of I.P.C. As such, the judgment and order of the trial court dated 9.8.1994 is correct and the sentence awarded to the appellant-accused is justified. I concur the view taken by the trial court. 24. For the reasons recorded above, the appeal is devoid of merit and is hereby dismissed. The judgment and order dated 9.8.1994 passed by the learned Sessions Judge, Nainital in Sessions Trial No. 206 of 1992 is confirmed and conviction under Section 324 of I.P.C. and sentence of six months’ R.I. with fine of Rs. 2000/- and in case of default in the payment of fine, three months’ further R.I. awarded to the appellant-accused is hereby upheld. 9 25. Appellant-accused Kewal Singh is on bail. His bail bonds are cancelled. Let the appellant-accused be taken into custody to serve the sentence as awarded to him. Let the lower court record be sent back to the trial court concerned for compliance of the order forthwith. (Dharam Veer, J.) 02.03.2009 PRABODH