1 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Jail Appeal No. 8 of 2009 1. Upendra Singh 2. Virendra Singh Both S/O Kaman Singh R/O village Masyakhot P.S.Lalbagh, Dist Roliya, Anchan, Nepal, at present R/O Birchand Uniyol, Uniyal Gaon, patte-Saklana Donoti, Tehri Garhwal. ………………………. Appellants Versus State of Uttarakhand …………..Respondent Shri D.C.S.Rawat (Amicus Curiae) for the Advocate, present for the appellant Shri G.S.Sandhu, Government Advocate, present for the State. Hon’ble Prafulla C. Pant, J. This appeal received through Superintendent of jail Tehri Garhwal preferred under section 374 of Code of Criminal Procedure, 1973, (for short Cr.P.C) is directed against judgment and order dated 07.01.2009 passed by Session Judge, Tehri Garhwal in Sessions Trial No. 10 of 2008 whereby the appellant Upendra Singh and Virendra Singh have been convicted under section 304 part-2 read with section 34 of Indian Penal Code, 1860, (for short I.P.C), and each one of them is sentenced to 2 rigorous imprisonment for a period of four years, and each one of them is also directed to pay fine of Rs. 2000/-. (2) Heard learned Amicus Curiae for the appellants and Government Advocate for the State. (3) Prosecution story in brief, is that complainant Ram Prasad (PW1) lodged a First Information Report (Exhibit A-1) with Police Station Chamba against Upendra Singh (appellant no.1) and Virendra Singh (appellant 2) who is brother of appellant no.1 and one Kumari Rooka (sister of the appellants). It is mentioned in the First Information Report that about five years before the incident Upendra singh got married to Ganga Devi (deceased daughter of the complainant). On 19.01.2008, information was sent by the in-laws of Ganga Devi (deceased) that she is suffering from illness. On this complainant went to village Uniyal gaon to see his daughter. He saw that Upendra Singh and Virendra Singh had caught hold of Ganga Devi and their sister Rooka was casting out evil spirit by incantation (JHARPHOONK). She (Rooka) was also touching the hot iron rod (DAAM) on the skin of Ganga Devi. The complainant took the Ganga Devi to hospital where she was declared dead. Complainant Ram Prasad (PW1) lodged First Information Report (Exhibit A-1) in the intervening night 19th and 20th of January 2008. The case was registered by the police under section 304 I.P.C against accused/appellant Upendra Singh and Virendra Singh and their sister Rooka. Thereafter, the dead body was taken is to custody by police, and sealed, and sent for post 3 mortem examination. Dr. Sanjay Kansal (PW3) conducted post mortem examination on 20.01.2008, and prepared autopsy report (Exhibit A-2). He opined that cause of death of the deceased was head injury by some hard blunt object. The investigation was conducted by PW7 Chandan Singh Chauhan (Station Officer). The police took the dead body of Ganga Devi in their possession and prepared inquest report (Exhibit A-10). (4) After interrogating the witness and completing the investigation, the Investigating Officer submitted charge sheet (Exhibit A-9) for trial of accused/appellant Upendra Singh and Virendra Singh and their sister Rooka. (5) The Chief Judicial Magistrate 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. Meanwhile, accused Rooka died during trial. Learned Sessions Judge, after hearing the parties framed charge of offence punishable under section 304 read with section 34 of I.P.C on 17.05.2008, against accused/appellant Upendra Singh and Virendra Singh, who pleaded not guilty and claimed to be tried. (6) On this, prosecution got examined PW1 Ram Prasad (complainant), PW2 Dinesh Ramola, PW3 Dr. Sanjay Kansal, PW4 Sher Bahadur, PW5 Head Constable Arjun Singh, PW6 Ram Lal Gaud, PW7 Chandan Singh Chauhan Station Officer (Investigating Officer) and PW8 Constable Subhash Chand. Oral 4 and documentary evidence was put to the accused under section 313 of Cr.P.C in reply to which they stated that deceased Ganga Devi was suffering from illness. According to them she used to get fits and in that process she got injured as she struck her head on the wall near fire place (Hearth). It is also pleaded by the accused/appellant in their statement under section 313 of Cr.P.C that they were getting treated Ganga Devi (deceased) to make her get well. However, no evidence in defence has been given. The trial court after hearing the parties found both the accused Upendra Singh and Virendra Singh guilty of charge of offence punishable under section 304 part-2 read with section 34 of I.P.C. Thereafter, the trial court heard on sentence and sentenced each of the convicts to rigorous imprisonment for a period of four years and also directed to pay each one of them to pay fine of Rs. 2,000/-. In default of payment a fine the defaulter was directed to undergo further imprisonment for six months. Aggrieved by said order dated 07.01.2009, passed by Sessions Judge, Tehri Garhwal, this appeal is preferred by the convicts from jail. (7) Before further discussions, this court thinks it just and proper to mention the ante mortem injuries recorded by PW3 Dr. Sanjay Kansal in autopsy report (Exhibit A-2). The same are being reproduced below:- (i) Darkening and oidema at whole of the face. (ii) 2x.5cm L/W at left side of chin. 5 (iii) Depressed fracture of right temporal bone post half whole of the occipital bone. (iv) ‘U’ shaped L/W 10x5 cm at occipital area of scalp. (v) Multiple abrasion at ant and lateral (left) half of neck. (vi) Abraded contusion of whole of back side of neck with darenine of skin. (vii) Multiple abrasions at whole of the back with lividity of whole of back at dependent area. There are red lines around abrasions. (viii) Multiple dark colour abrasions with red lines (burn) at ant. Surface of right arm, right forearm and dorsal surface of right forearm. (ix) Burning of whole of dorsal surface of right palm with swelling. (x) Burning of ant 1/3 of dorsal surface of left forearm and whole of dorsal and verbal surface of left palm. (xi) Multiple small burn area at medial and ant side of upper half and left thigh. On internal examination the Medical Officer found depressed occipital bone of right temporal bone posture. However, nothing abnormal found in rest of the body in the internal examination. The Medical Officer in his opinion found 6 that case of death was caused due to head injury by some hard blunt object. From the above quoted injuries read with statement of PW3 Dr. Sanjay Kansal , it is proved on the record that the deceased had died a unnatural death. (8) Part-2 of Section 304 provides punishment for culpable homicide not amounting to murder in the cases where the act by which the death is caused without any intention to cause death or to cause such body injury, which is likely to cause death. (9) PW1 Ram Prasad complainant has stated on oath before the trial court that on 19.01.2008 on receiving a phone call that his daughter is unwell, he rushed to her village Uniyal Gaon where he saw that accused/appellant Upendra Singh (husband of the deceased) and Virendra Singh (brother in law of the deceased) had caught hold of Ganga Devi (deceased), while their sister Rooka Devi was performing incantation (JHARPHOONK). She (Rooka) was also touching the body of Ganga Devi with heated point of Sickle (The process in the hills is known as DAAM). She was saying that she was casting out the evil sprit from Ganga Devi. Ganga Devi was lying unconscious. Thereafter, complainant Ram Prasad along with Dinesh Chand Ramola (PW2) took Ganga Devi to hospital where she was declared dead. (10) PW2 Dinesh Ramola has corroborated the testimony of PW1 Ram Prasad complainant that they took Ganga Devi to hospital on 20.01.2008, where she was declared dead. 7 (11) From the evidence on record, it is clear that accused /appellant and their sister Rooka (since dead) in an attempt to caste out the evil sprit from their sister while performing incantation caused injuries on the person of Ganga Devi, who appear to have already injured due to the fits. As such the trial court has rightly convicted the accused/appellant under section 304 part-2 read with section 34 of I.P.C. This court after examination of the evidence on record and considering the submissions of learned counsel for the parties finds that the trial court has committed no illegality in recording the conviction of the appellants aforesaid under the law. (12) However, considering the facts and circumstances of the case as it is clear that the accused/appellants are in jail since January 2008 for a period of about two and half years. The sentence of period already undergone by them in jail would meet the ends of justice. (13) Accordingly, the appeal is partly allowed. The conviction recorded by the trial court in respect of offence punishable under section 304 part –2 of I.P.C is affirmed, but the sentence awarded by the trial court is reduced to the period already undergone by the accused/appellants Upendra Singh and Virendra Singh. They shall be set at liberty if not wanted in connection with any other crime. With modification in the sentence as above the appeal stands disposed of. Trial court record be sent back along with 8 the copy of judgment. Also, a copy of this judgment be sent to the Superintendent of jail concerned. (Prafulla C. Pant, J.) Dt.07.07.2010 NP