IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No. 644 of 2001 (Old No. 579/1997) Kripal Singh & Others .…. Appellants/Accused Versus State of U.P. …………… Respondent March 27, 2010 Mr. SS Bhandari, Advocate for the appellants. Mr. Amit Bhatt, Addl. GA for the State/respondent. HON’BLE DHARAM VEER, J. This appeal, preferred by the appellants 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 28.3.1997 passed by the Special Judge/Additional Sessions Judge, Nainital in Sessions Trial No. 72 of 1992, State v. Kripal Singh & Ors., whereby learned Special Judge/Additional Sessions Judge has convicted each of the appellants/accused, viz., Kripal Singh, Balram Singh, Rajju Singh and Mitan Singh under Section 354/325 read with Section 34 of Indian Penal Code, 1860 (for short, IPC) and Section 304 Part II read with Section 34 IPC and each of the appellants/accused have been sentenced to undergo R.I. for six months under Section 354/325 read with Section 34 IPC. Each of the appellants/accused have also been sentenced to undergo R.I. for five years under Section 304 Part II read with Section 34 IPC. Both the sentences were directed to run concurrently. 2. In brief, the prosecution case is that PW1 Harkesh Singh lodged a report Ex. Ka-1 with PS Jaspur on 23.10.1991 at 4 pm with the averments that on the previous day i.e. on 22.10.1991 at 6 pm, when Smt. Guddi (PW3) wife of his nephew Kishan Singh along with his niece Km. Bala had gone at the vacant land of Jila Parishad to answer the call of nature, the accused appellants outraged their modesty. The accused appellants were armed with lathis. Smt. Guddi and Km. Bala complained the matter to his nephew Kishan Singh after returning home. On this, Kishan Singh went to the place of occurrence where hot talks took place between him and the accused appellants and thereafter the accused appellants started beating him with the lathis. On raising the alarm by Kishan Singh, the another nephew of the complainant, viz., Bishan Singh @ Devendra Singh went to the spot, then the accused appellants also started beating him. When the complainant and one Nobat Singh rushed to the place of occurrence, they saw that accused appellants were beating his nephews with lathis. When the complainant challenged the accused appellants, then the accused appellants returned to their house. The complainant and his nephew Mishri Singh brought the injured at Jaspur Hospital. Kishan Singh was referred to Kashipur Hospital when his condition deteriorated and from Kashipur Hospital, he was referred to Delhi. When the complainant was coming to his village for arranging the money for further treatment of Kishan Singh at Delhi and reached near Jaspur, the condition of Kishan Singh became very serious and he was brought to Jaspur Hospital where he was declared dead. With the aforesaid averments the FIR Ex. Ka-1 was lodged stating that the dead body of Kishan Singh was lying in the Jaspur Hospital and the report of this incident could not be lodged a day before because the condition of Kishan Singh was very serious and, therefore, he was directly taken to hospital. 3. On the basis of report Ex. Ka-1, Head Moharrir Niranjan Singh prepared the chick FIR Ex. Ka-9 on 2 23.10.1991 at 4 pm. He also made the necessary entries in GD. Copy of GD is Ex. Ka-10. The investigation of this case was entrusted to SI GK Gangwar (PW4). Kishan Singh was earlier medically examined at Jaspur Hospital on 22.10.1991 at 9.05 pm by Emergency Medical Officer, who also prepared the medical report, the genuineness of which has been admitted by the defence counsel. The inquest report Ex. Ka-2 of the dead body of Kishan Singh was prepared on 23.10.1991. Along with the inquest report, photo lash Ex. Ka-3, police form no. 13 Ex. Ka-4, police form no. 33 Ex. Ka-5, letter to CMO Ex. Ka-6 for conducting the post mortem of the dead body were also prepared. The post mortem of the dead body was conducted on 24.10.1991 at 12.30 pm by Dr. SP Srivastava, the genuineness of which has been admitted by the defence counsel. The said post mortem report is Ex. Ka-11. The injured Devendra was also medically examined on 24.10.1991 at 8.50 pm by Dr. Ashok Aggarwal (PW6), who also prepared the medical report Ex. Ka-13. He was also X-rayed by Dr. GS Joshi (PW4) on the advice of Dr. Ashok Aggarwal (PW6) and his X-ray report is Ex. Ka-12. During the course of investigation, the I.O. inspected the place of occurrence and prepared the site plan Ex. Ka-7. He also recorded the statements of the witnesses during the course of investigation and after completing the investigation, he filed the chargesheet Ex.Ka-8 against the accused appellants. 4. Learned Judicial Magistrate, Kashipur after giving the necessary copies of the documents to the appellants/accused as prescribed under Section 207 CrPC, committed the case to the Court of Session on 29.2.1992. Learned Sessions Judge transferred the case to Special Judge/Addl. Sessions Judge, Nainital for its disposal according to law. 3 5. On 7.6.1993, learned Special Judge/Addl. Sessions Judge, Nainital framed the charges against each of the appellants/accused under Sections 354, 325 read with Section 34 and 302 read with Section 34 IPC. The charges were read over and explained to each of the appellants/accused, who pleaded not guilty and claimed to be tried. 6. To prove its case, the prosecution has examined PW1 Harkesh Singh, the complainant; PW2 Devendra, an injured eyewitness; PW3 Smt. Guddi, the victim of the first incident; PW4 SI GK Gangwar, the I.O. of the case; PW5 Dr. GS Joshi, who conducted the X-ray on PW2 Devendra and PW6 Dr. Ashok Aggarwal, who medically examined the injured Devendra (PW2). 7. Thereafter, statements of each of the appellants/accused were recorded under Section 313 CrPC. The oral and documentary evidence were put to them in question form, who denied the allegations made against them and stated that they have been falsely implicated in the case. However, in defence, they did not produce any documentary or oral evidence. 8. After hearing learned counsel for the parties and after appreciating the evidence available on record, learned Special Judge/Addl. Sessions Judge, Nainital vide his judgment and order dated 28.3.1997 convicted and sentenced to each of the appellants/accused as discussed above. Against the aforesaid judgment and order dated 28.3.1997, the appellants/accused have preferred the present appeal. 4 9. I have heard learned Counsel for the parties and have carefully perused the entire material available on the record. 10. Before any further discussion, it would be pertinent to reproduce the injuries noted in the medical report of Kishan Singh who was medically examined on 22.10.1991 at 9.05 pm by the E.M.O., Combined Hospital, Jaspur, genuineness of which has been admitted by the defence counsel and the same are reproduced below: “Injuries : (1) Lacerated wound 2.5 cm x 2.4 cm x bone deep associated with swelling in an area of 5 cm x 4 cm present over left side of the scalp above left ear. Fresh bleeding present. Advise X-ray AP and Lat. Views of skull. (2) Contusion 13 cm x 2 cm present over back of chest on left side 13 cm below left scapular of angle. (3) Bleeding from left ear present. Advice X-ray AP and Lat. Views of skull. O/E. – Patient unconscious. G.C.V. Low  Pupil – right constricted, left dilated, not reacting to light.  Pulse – 66/mt.  BP -- 90/70 mmHg.  Patient not responding to painful stimulus. Opinion : the above mentioned injuries are caused by some blunt and hard object, Injury No. (1) kept under observation, advice X-ray AP and Lat. Views of skull. Patient referred to Surgeon LDBH, Kashipur for expert management. Injury No. (2) is simple in nature. Injury No. (3) kept under observation, advice X-ray skull AP and Lat. Views. Duration fresh.” 11. Thereafter Kishan Singh died on 23.10.1991 and the post mortem of the dead body was conducted on 24.10.1991 at 12.30 pm by Dr. SP Srivastava at Kashipur 5 Hospital, the genuineness of which has been admitted by the defence counsel. The ante mortem injures noted in the post mortem report Ex. Ka-11 are reproduced below: “Ante mortem injures: (1) Contusion of 4 cm x 6 cm above left parietal region of skull, 12 cm above the left ear. (2) A.L.W. of size 3 cm x 1/2 cm x scalp deep on injury no. (1). (3) Bleeding present from left ear. Cause of death : Head injury due to ante mortem injuries.” 12. Injured Devendra (PW2) was also medically examined on 24.10.1991 at 8.50 pm by PW6 Dr. Ashok Aggarwal, who also prepared the medical report Ex. Ka-13 and the injuries mentioned therein are reproduced below: “Injuries : (1) Traumatic swelling 7 cm x 8 cm over dorsum of right palm (hand) extending upto metacarpophalangeal joint. Kept under observation. Advice X-ray right hand –AP and Lat. (2) Contusion 10 cm x 4 cm over back of left upper arm. Bluish in colour, Advice X-ray left upper arm (lower 1/2) and left elbow joint. C/o Pain in left side chest, back left side. Remark : Injury No. 1 & 2 kept under observation. Advice X-ray Rt. Hand –AP, Lat. & X-ray left elbow with lower 1/2 of left upper arm. Caused by hard and blunt object. About 2 days ago.” 13. To prove the aforesaid medical report Ex. Ka-13, the prosecution has examined PW6 Dr. Ashok Aggarwal, who has proved the contents of same and has stated that the aforesaid injuries might have been inflicted upon PW2 Devendra by lathi at about 6 pm on 22.10.1991. 6 14. On the advice of PW6 Dr. Ashok Aggarwal, X-ray on injured Devendra (PW2) was conducted by PW5 Dr. GS Joshi on 24.10.1991 and the X-ray report Ex. Ka-12 is reproduced as under: “(1) X-ray Right Hand – AP, Lat view : Fracture of 3rd and 5th metacarpal bones of right hand and proximal phalanx of right index finger are seen. No bony callus is seen. (2) X-ray left elbow & lower 1/2 Arm – AP and Lat. View : No bony injury or dislocation is seen.” 15. To prove the aforesaid X-ray report Ex. Ka-12, the prosecution has examined PW5 Dr. GS Joshi, who has proved the contents of same and has stated that X-ray on PW2 Devendra was conducted by the technician under his supervision and direction. He has identified the X-ray plates as Ex. 1 to Ex. 3, on the basis of which he prepared the X-ray report Ex. Ka-12. 16. To further prove its case, the prosecution has examined PW1 Harkesh Singh, the complainant who in his deposition has reiterated the averments made in the FIR and has proved the same as Ex. Ka-1. This witness was cross-examined at length by the defence Counsel but nothing has come out in his deposition which may create any doubt about his statement. 17. PW2 Devendra, an injured eyewitness, has stated that the deceased Kishan Singh was his brother. On the date of incident at about 6 pm, Guddi and Bala had gone to answer the call of nature on the land of Jila Parishad, where the accused appellants outraged their modesty. After returning home, they complained the matter to his brother Kishan Singh. Kishan Singh went to the accused appellants and asked them as to why they did like so. This 7 witness had also gone there along with his brother Kishan Singh. Thereafter the accused appellants started beating his brother Kishan Singh with lathis. He tried to save him but the appellants accused also beaten him in which he also received the injuries. This witness has further stated that when he raised the alarm, Harkesh Singh (PW1) and one Nobat Singh reached at the place of occurrence. On their challenge, the accused appellants ran away from the place of occurrence. His brother Kishan Singh was taken to Jaspur Hospital by Harkesh Singh (PW1) and Mishri from where he was referred to Kashipur Hospital. He returned to his home for arrangement of money. From Kashipur Hospital, his brother Kishan Singh was referred to Delhi and when he was being taken to Delhi via Jaspur, his brother died in the way near Jaspur Hospital. On the next day, he was medically examined and X-ray was also done. This witness was also cross-examined at length by the defence counsel but nothing has come out which may create any doubt about his testimony. 18. PW3 Smt. Guddi, the victim of the first incident and wife of deceased Kishan Singh has stated in her deposition recorded on 23.2.1995 that about 3 years and 4 months ago, it was 6 pm in the evening, she along with her sister- in-law Km. Bala had gone to answer the call of nature on the land of Jila Parishad, where the accused appellants met them and outraged their modesty. After returning to house, she narrated the said incident to her husband (Kishan Singh, the deceased), who rushed to the accused appellants for inquiry. The accused appellants beaten her husband Kishan Singh (the deceased) and her brother-in- law Devendra (PW2) with lathis. Upon raising the alarm, when Harkesh Singh (PW1) and Nobat Singh reached at the place of occurrence, then the accused appellants ran 8 away form there. Her husband fell down after receiving the injuries in the said incident and her brother-in-law Devendra (PW2) also received injuries in his hand. Her husband was taken to hospital by Harkesh Singh (PW1) and Mishri Singh. Her husband Kishan Singh died on the next day. This witness was also cross-examined at length by the defence counsel, but she could not be shaken. 19. PW4 GK Gangwar has stated that he was posted as SI at PS Jaspur from 23.10.1991 to 29.11.1991. On 23.10.191, the investigation of this case was entrusted to him. During the course of investigation, he prepared the inquest report Ex. Ka-2. Along with the inquest report, he also prepared photo lash, police form no. 13, police form no. 33 and letter to CMO, which are Ex. Ka-3, Ka-4, Ka-5 and Ka-6 respectively. The dead body was sealed on the spot and was given in the supardgi of Constable Nirmal Singh and Constable Mahipal Singh along with necessary papers for the post mortem. The specimen of seal was also prepared. He also inspected the place of occurrence during the course of investigation and on 24.10.1991 prepared the site plan Ex. Ka-7 on the pointing out of the complainant Harkesh Singh (PW1). During the course of investigation, he recorded the statements of the witnesses and after completing the investigation, filed the chargesheet Ex. Ka-8 against the accused appellants. He has also stated that the chick FIR Ex. Ka-9 was prepared by Head Moharrir Niranjan Singh, who has also made the necessary entries in the GD. Copy of GD is Ex. Ka-10 20. Thereafter, statements of each of the appellants/accused were recorded under Section 313 CrPC. The oral and documentary evidence were put to them in question form, who denied the allegations made against them and stated that they have been falsely 9 implicated in the case. However, in defence, they did not produce any documentary or oral evidence. 21. Learned Counsel for the accused appellants argued that the on the basis of the evidence discussed above, the prosecution has failed to prove its case against the accused appellants beyond reasonable doubt. I do not find any substance in the argument of learned Counsel for the accused appellants for the following reasons: (i) That as per the statement of PW2 Devendra recorded on 23.2.1995, an injured eyewitness of the case, who has stated that about three years and four months ago, on the date of incident at about 6 pm, Smt. Guddi and Km. Bala had gone to answer the call of nature on the land of Jila Parishad, where the accused appellants outraged their modesty. After returning home, they complained the matter to his brother Kishan Singh. Kishan Singh accompanied by this witness went to the accused appellants and asked them as to why they did like so. Thereafter the accused appellants started beating his brother Kishan Singh with lathis. When he tried to save him the appellants accused also beaten him in which he also received the injuries. When he raised the alarm, Harkesh Singh (PW1) and one Nobat Singh reached at the place of occurrence. On their challenge, the accused appellants ran away from the place of occurrence. His brother Kishan Singh was taken to Jaspur Hospital by Harkesh Singh (PW1) and Mishri from where he was referred to Kashipur Hospital. He returned to his home for arrangement of money. From Kashipur Hospital, his brother Kishan Singh 10 was referred to Delhi and when he was being taken to Delhi via Jaspur, his brother died in the way near Jaspur Hospital. On the next day, he was medically examined and X-ray was also done. This witness could not be shaken in his cross-examination. (ii) That the statement of PW2 Devendra finds corroboration from the statement of PW3 Smt. Guddi, the victim of the first incident in which the accused appellants outraged the modesty of this witness and her sister-in-law Km. Bala when they had gone to answer the call of nature on the Jila Parishad land. (iii) That the case of prosecution is further proved by the statement of PW1 Harkesh Singh, the complainant who has also corroborated the statement of PW2 Devendra and PW3 Smt. Guddi. (iv) That the incident took place at 6 pm on 22.10.1991 and the report was lodged on 23.10.1991 at 4 pm and this delay in lodging the FIR has been explained by the prosecution by showing the sufficient cause. In the FIR itself it has been stated that because of serious condition of Kishan Singh (who died subsequently), the report could not be lodged immediately as Kishan Singh was directly taken to hospital for treatment. (v) That the case of prosecution is further proved by medical evidence. The medical report of Kishan Singh, who was medically examined on 22.10.1991 at 9.05 pm at Jaspur Hospital, reveals that he was taken there in a very serious condition and he was not even responding to painful stimulus and his pupils 11 were also not responding to light and he was referred to Surgeon, Kashipur Hospital for expert management of the case. From Kashipur Hospital he was further referred to Delhi for better treatment and when he was being taken to Delhi, he died in the way near Jaspur Hospital on 23.10.1991. His post mortem was conducted on 24.10.1991 at 12.30 pm and cause of death has been attributed to head injuries due to ante mortem injuries as mentioned above. The genuineness of medical report of Kishan Singh and the post mortem report Ex. Ka-11 has been admitted by the defence counsel. (vi) That PW2 Devendra was also medically examined by PW6 Dr. Ashok Aggarwal, who has stated that the injuries received by him (as stated supra) could have been inflicted upon him by lathis at about 6 pm on 22.10.1991. He was also X-rayed by PW5 Dr. GS Joshi and fracture of 3rd and 5th metacarpal bones of right hand and proximal phalanx of right index finger was found as mentioned by him in the X-ray report Ex. Ka-12. (vii) Thus, the prosecution version stands corroborated by the medical evidence. 22. Thus, in view of my foregoing discussion of evidence and reasons recorded above, the prosecution has successfully proved its case against the accused appellants for the offence punishable under Section 354/325 read with Section 34 IPC and Section 304 Part II read with Section 34 IPC and, therefore, learned trial court has rightly convicted and sentenced to each of the accused appellants under the aforesaid Sections of IPC 12 vide the impugned judgment and order dated 28.3.1997, which warrants no interference by this Court and the same is liable to be affirmed. 23. In the result, the appeal being devoid of merit is hereby dismissed. The judgment and order dated 28.3.1997 passed by Special Judge/Additional Sessions Judge, Nainital in Sessions Trial No. 72/1992, State v. Kripal Singh & Ors. convicting each of the accused appellants under Section 354/325 read with Section 34 IPC and Section 304 Part II read with Section 34 IPC is hereby upheld and sentence awarded to each of the accused appellants to undergo R.I. for six months under Section 354/325 read with Section 34 IPC and R.I. for five years under Section 304 Part II read with Section 34 IPC is hereby also affirmed. As directed by the trial court, both the sentences will run concurrently, however the period of sentence served by each of the accused appellants during the period of trial and appeal of this case, shall be adjusted after verifying the same from the records and the appellants, who are on bail, shall be taken into custody forthwith to serve out the remaining period of sentence. 24. A copy of this judgment and order be sent to trial court for its compliance. Let the lower court record be sent back. (Dharam Veer, J.) 27.3.2010 PRABODH 13