IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Chapter VIII, Rule 32(2)(b) Description of case Date of decision: 05.05.2008 Criminal Appeal No. 540 of 2001 (Old No. 264 of 1992) A.F.R. (Approved for Reporting) Not Approved for Reporting (Initial of Judge) Date: 05.05.2008 Note: Bench Reader will attach this at the top of first page of the judgment when it is put up before the Judge for signature. IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 540 of 2001 (Old No. 264 of 1992) Chandra Shekhar S/o Chhotey Lal R/o Nai Basti Tanakpur, District Nainital. …………………Appellant. Versus State ……………….Respondent. Sri S.K. Agrawal, Senior Advocate, assisted by Sri S.S. Bhandari, and Smt. Pushpa Joshi, Advocates for the appellant. Sri H.C. Pujari, Additional Government Advocate assisted by Sri M.A. Khan, Brief Holder for the State. Hon’ble Prafulla C. Pant, J. Hon’ble Dharam Veer, J. [Oral- Prafulla C. Pant, J.] This appeal, preferred under Section 374 of Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), is directed against the judgment and order dated 28.01.1992, passed by learned Sessions Judge, Pithoragarh, in Sessions Trial No. 10 of 1991, whereby accused / appellant Chandra Shekhar has been convicted under Sections 302 and 324 of Indian Penal Code, 1860 (hereinafter referred as I.P.C.). The said court has sentenced him to imprisonment for life under Section 302 I.P.C. and rigorous imprisonment for a period of three years under Section 324 I.P.C.. (2) Heard learned counsel for the parties and perused the lower court record. (3) Prosecution story in brief is that on 27.09.1990 at about 10.00 P.M. in Tourist Rest House of Kumaon Mandal Vikas Nigam Limited, situated in the jungles of Tanki, Purnagiri, within the limits of District Pithoragarh (Now part of District Champawt) some employees of Resin factory of Tanakpur, including Chandra Shekhar (accused / appellant) were playing cards. Shankar Datt (deceased) along with employees of Kumaon Mandal Vikas Nigam in the Rest house also joined them. A quarrel took place between Chandra Shekhar and Shankar Datt while playing cards, on which Shankar Datt went to his room and came along with Amar Nath (P.W.3). Shankar Datt after returning from his room slapped Chandra Shekhar. On which, Chandra Shekhar took out his knife and struck in the abdomen of Shankar Datt, who started bleeding profusely. Amar Nath (P.W.3), tried to intervene and he also received knife injury on his face. Ashok Kumar (P.W.2) along with Surendra Prasad Verma (P.W.4), Suresh Chandra Joshi (P.W.5) and other employees of the Resin factory took injured Shankar Datt on foot to nearest Primary Health Center, Tanakpur, which was at a distance of 20 Kms. from the Rest House. On reaching Tanakpur, Shankar Datt was declared brought dead. On this Ashok Kumar (P.W.2) wrote a report (Ext.A-1) and submitted the same on 28.09.1990 to his Senior Lakhan Singh (P.W.1), Officer In-charge of Tourist Rest House, Tanakpur, who forwarded the same with his own report (Ext.A-2) to Patti Patwari Circle Purnagiri (In interior hills of Uttarakhand revenue officials are given police powers under U.P. Government Notification No. 494/VIII-16, dated 07.03.1916). Bhuwan Chandra Joshi (P.W.9), Patwari of the area, who received report of Lakhan Singh (P.W.1) in-charge of Rest House, having its enclosure written report (Ext.A-1) given by Ashok Kumar (P.W.2) prepared check report (Ext.A- 12) of First Information Report on 28.09.1990 at about noon. On the basis of report, he registered Crime No. 4 of 1990, against accused / appellant Chandra Shekhar relating to offence punishable under section 302 I.P.C.. On receiving a telephonic information from the Primary Health Center, Tanakpur, Sub Inspector Tara Datt Joshi (P.W.6) of Police Station Tanakpur after taking the dead body in his possession prepared inquest report (Ext.A-3). He also prepared sketch of dead body (Ext.A-7), Police Form No. 13 (Ext.A-8), sample seal (Ext.A-9) and letter to Civil Surgeon, Pilibhit (Ext.A-10), requesting for post mortem examination. (From Tanakpur nearest District Hospital was at Pilibhit as against District Hospital, Pithoragarh, which was at a distance of 150 Kms.) Dr. V.S. Srivastava of District Hospital, Pilibhit, conducted autopsy on the dead body on 28.09.1990 at about 4.15 P.M. and prepared postmortem examination report (Ext.A-20). The Medical Officer opined that the Shankar Datt (deceased) had died due to shock and haemorrhage as a result of ante mortem injury. Meanwhile, Bhuwan Chandra Joshi (Patwari), the Investigating Officer started the investigation. He interrogated the witnesses and prepared site plan (Ext.A-13) on 29.09.1990. After completion of investigation, the Investigating Officer submitted the charge sheet (Ext.A-16) against accused Chandra Shekhar for trial in respect of offence punishable under Section 302 and 324 I.P.C.. (4) The Magistrate on receipt of the charge sheet, after giving necessary copies to the accused as required under Section 207 of Cr.P.C., appears to have committed the case to the court of Sessions for trial. Learned Sessions Judge, Pithoragarh, on 16.04.1991, after hearing the parties, framed charge of offence punishable under Section 302 I.P.C. and one punishable under Section 307 I.P.C. against the accused Chandra Shekhar for allegedly committing murder of Shankar Datt and attempt to commit murder of Amar Nath. The accused Chandra Shekhar pleaded not guilty and claimed to be tried. On this prosecution got examined P.W.1 Lakhan Singh, In-charge of Tourist Rest House, P.W.2 Ashok Kumar, an eyewitness, P.W.3 Amar Nath, injured eyewitness, P.W.4 Surendra Prasad Verma, who partially supported the prosecution story and declared hostile, P.W.5 Suresh Chandra Joshi, who also partially supported the prosecution story and declared hostile, P.W.6 Sub Inspector Tara Dutt Joshi, who prepared the inquest report (Ext.A-3) and other necessary papers at Tanakpur before sending the same for postmortem examination. P.W.7 Dr. R.H. Gokhale of Civil Hospital, Tanakpur, who examined injuries on the person of Amar Nath and prepared injury report (Ext.A-11), P.W.8 Indra Singh Dhela, an eyewitness and P.W.9 Bhuwan Chandra Joshi, who connected the investigation and submitted the charge sheet (Ext.A-16) against the accused Chandra Shekhar. The oral and documentary evidence was put to the accused, under Section 313 Cr.P.C. in reply to which he alleged the same to be false, but admitted at the end of reply that he was playing cards with others at the time of incident, but he says that he was given threat of being killed whereafter he got frightened and ran away. However, no evidence in defence is adduced, but copies of two statements of Lakhan Singh (Ext.B-1 & Ext.B-2) were got filed. After hearing the parties, the trial court found accused Chandra Shekhar guilty of charge of offence punishable under Section 302 I.P.C. and one punishable under Section 324 I.P.C.. Thereafter, hearing on sentence, the trial court directed convict Chandra Shekhar to undergo imprisonment for life under Section 302 I.P.C. and to undergo rigorous imprisonment for a period of three years under Section 324 I.P.C.. Aggrieved by said judgment and order dated 28.01.1992, passed by learned Sessions Judge, Pithoragarh, in Sessions Trial No. 10 of 1991, this appeal was filed before Allahabad High Court on 31.01.1992, where it was admitted on 17.02.1992. The appeal is received by this Court under Section 35 of U.P. Reorganisation Act, 2000, for its disposal. (5) Before further discussions, we think it just and proper to mention the ante mortem injuries found on the dead body of Shankar Datt (deceased) at the time of postmortem examination, recorded in autopsy report (Ext.A-20) (formal proof of the same was dispensed with by the defence), prepared by Dr. V.S. Srivastava of District Hospital, Pilibhit. The ante mortem injury mentioned in autopsy report is reproduced below:- “Incised wound 9cm x 4cm x abdominal cavity deep. Intestine and omentum coming out, running transversely 5cm below the umblicus more on the left side.” On internal examination, the Medical Officer had found peritoneum badly cut. The Medical Officer, who conducted the postmortem examination and prepared autopsy report, has further observed that small intestine was also cut at many places. He has opined that the cause of death of deceased was shock and haemorrhage as a result of ante mortem injury. (6) Now we think it necessary to mention the injury found on person Amar Nath (P.W.3) by Dr. R.H. Gokhale (P.W.7), who examined him on 30.09.1990 at 11.30 A.M. and prepared medical examination report (Ext.A-11). The injury found on person of Amar Nath is being reproduced below:- “Incised wound 2cm x .5cm x muscle deep on right cheek tapering ends.” The Medical Officer who prepared above report (Ext.A- 11) has opined that the injury was two days old on the day the injured was examined and the injury has been caused by a sharp edged object. Nature of injury is recorded as simple. (7) To prove that accused Chandra Shekhar has committed the offence, prosecution got examined as many as five eyewitnesses, namely, Ashok Kumar (P.W.2), Amar Nath (P.W.3), Surendra Prasad Verma (P.W.4), Suresh Chandra Joshi, (P.W.5) and Indra Singh Dhela (P.W.8). Ashok Kumar (P.W.2) has stated in his testimony that on 27.09.1990 Chandra Shekhar along with his other companions were staying in Tourist Rest House, Tanki. According to this witness, at about 10 P.M., when Chandra Shekhar and four others were playing cards in room no. 1 of the Rest House, Shankar Datt (deceased), an employee of Rest House also joined them. This witness has also stated that Indra Singh Dhela (P.W.8) was also there. He further states that during playing cards a quarrel started between Chandra Shekhar and Shankar Datt, but after intervention of others Shankar Datt left the room. However, when he reappeared along with Amar Nath, again quarrel started with Chandra Shekhar on which Chandra Shekhar took out his knife and stabbed in the abdomen of Shankar Datt. The witness further states that when Amar Nath tried to intervene, he was also given a knife blow on his cheek by Chandra Shekhar. P.W.2 Ashok Kumar has stated that there was a candle light in the room. After the incident, when the candle got extinguished, torch was flashed and Chandra Shekhar escaped with his knife, through a window. The witness has further narrated that Shankar Datt started bleeding profusely. He has told that Surendra Prasad Verma (P.W.4) and other persons present there, tied a piece of clothe around the abdomen of Shankar Datt and thereafter Ashok Kumar himself and some employees of resin factory took Shankar Datt, on foot to Tanakpur (nearest hospital) where they reached next day in the morning at 6.30 A.M.. However, there Shankar Datt was declared brought dead. In his cross-examination Ashok Kumar (P.W.2) has stated that Amar Nath (P.W.3), Indra Singh Dhela (P.W.8) and Shankar Datt (deceased) used to live in room no. 3 of Tourist Rest house, as they were employees of the Kumaon Mandal Vikas Nigam. This witness has also stated in his cross-examination that before Chandra Shekhar gave knife blow to the deceased, the deceased had slapped twice / thrice the accused. (8) Above statement of Ashok Kumar (P.W.2) gets corroboration from the statement of Amar Nath (P.W.3), the injured eyewitness, who has also narrated the entire prosecution story as mentioned above. The only difference is this that the injured witness has not accompanied deceased to the Hospital. P.W.8 Indra Singh Dhela, who is also employee of the Tourist Rest House as narrated entire prosecution story on oath and corroborated what has been stated by Ashok Kumar (P.W.2) and Amar Nath (P.W.3). This witness has accompanied the deceased to Hospital. Tanakpur. Amar Nath (P.W.3) has by mistake mentioned date of incident as 28.09.1990 in his examination-in-chief but clarified in his cross-examination that incident took place on 27.09.1990. (9) P.W.4 Surendra Prasad Verma and P.W.5 Suresh Chandra Joshi who are employees of Resin Factory, Tanakpur, of which accused Chandra Shekhar was also an employee have partially supported the prosecution story that they were playing cards in the Rest House of Tanki, and quarrel took place between accused and deceased, but they have not supported a part of prosecution story that they have seen accused Chandra Shekhar striking knife blow in the abdomen of Shankar Datt, that is why it appears they were got declared hostile by the prosecution. These two witnesses are also among the witnesses who signed the inquest report (Ext.A-3) in which it is mentioned that the panchas have opined Shankar Datt has died due to the knife injury caused by accused Chandra Shekhar to the deceased. (10) Sri S.K. Agarwal, learned counsel for the appellant argued that even if the statement of prosecution witnesses of fact are taken to be true, it is a case of private defence. However, from the examination of evidence on record, we do not find anything on record, which shows that accused had occasion to give a knife blow in private defence to the deceased. Neither any evidence in defence has been adduced nor anything has come out in the evidence of the prosecution witnesses, which may suggest that the accused might have given the fatal blow on the person of the deceased, in private defence. (11) On behalf of the appellant it is further pointed out that the production witnesses themselves have stated that deceased was in a drunken state and had slapped twice / thrice to the accused on which he gave knife blow to the deceased. On examination of the evidence on record, we found substance in the argument advanced on behalf of the appellant that there was a provocation given by the deceased to the accused and in the facts and circumstances which have come out from the statements of Ashok Kumar (P.W.2), Amar Nath (P.W.3) and Indra Singh Dhela (P.W.8), in our opinion the act on the part of accused Chandra Shekhar in response to slapping by drunken Shankar Datt, does constitute culpable homicide not amounting to murder punishable under Section 304 Part I of I.P.C.. Having scrutinized the evidence on record and after considering the submissions of learned counsel for the parties we feel that the trail court has erred in law in holding accused Chandra Shekhar guilty of committing murder and convicting him under Section 302 I.P.C.. In our opinion what has been proved against the accused is the offence punishable under Section 304 Part I of I.P.C.. As far as causing a knife injury to the person of Amar Nath is concerned, the trial court has rightly found accused guilty of offence punishable under Section 324 I.P.C. and not Section 307 I.P.C.. Punishment of three years rigorous imprisonment under Section 324 I.P.C. (i.e. maximum) appears to be harsh and rigorous imprisonment for a period of one year on that count would have met the ends of justice in the present case. (12) For the reasons a discussed above, this appeal deserves to be partly allowed. Accordingly the appeal is partly allowed. Conviction and sentence recorded under Section 302 I.P.C. against accused / appellant Chandra Shekhar by the trial court is set aside. Instead accused / appellant Chandra Shekhar is convicted under Section 304 Part I of I.P.C. and sentenced to undergo rigorous imprisonment for a period of ten years. His conviction recorded under Section 324 of I.P.C, as recorded by the trial court is maintained, but his sentence on that count, awarded by the trail court, is reduced to rigorous imprisonment for a period of one year. Both the sentences shall run concurrently. The period undergone during trial shall be set off. The appellant Chandra Shekhar is on bail. His bail is cancelled. He shall surrender before the court concerned. The Registry is directed to send the lower court record back to the trail court, who shall see that the accused / appellant Chandra Shekhar is made to serve out the sentence as awarded and modified by this Court. (Dharam Veer, J.) (Prafulla C. Pant, J.) 05.05.2008 NS