RESERVED IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No.937 of 2001 (Old No. 1131 of 1999) 1. Mukesh, S/o Bhakku @ Bhakan Singh 2. Rakesh, S/o Bhakku @ Bhakan Singh Both R/o Village Sisona, P.S. Sittarganj District Udham Singh Nagar …………..…Appellants Versus State of Uttar Pradesh (now state of Uttarakhand) ……………Respondent Shri R.S. Sammal, Advocate, with Shri Prem Kaushal, Advocate, present for the appellants. Shri M.A. Khan, Brief Holder, present for the State. Hon’ble Prafulla C. Pant, J. This appeal, preferred under section 374 of Code of Criminal Procedure, 1973 (for short Cr.P.C.), is directed against the judgment and order dated 13.05.1999, passed by IInd Additional Sessions Judge, Nainital, in Sessions Trial No. 326 of 1996, whereby appellants Mukesh and Rakesh are convicted under section 304/34 and 323/34 of 2 Indian Penal Code, 1860 (for short IPC), and each of them has been sentenced to rigorous imprisonment for a period of seven years and directed to pay fine of ` 2,000/- (Rupees two thousand only) under section 304/34 IPC, and rigorous imprisonment for a period of three months under section 323/34 IPC. 2. Heard learned counsel for the parties and perused the lower court record. 3. Prosecution story, in brief is that, complainant Hari Singh (P.W.1), and accused/ appellants Mukesh and Rakesh are respondents of Village Sisona, Police Station Sittarganj, District Udham Singh Nagar (Earlier Sittarganj was part of District Udham Singh Nagar). On 16.05.1996, at about 9:30 a.m., complainant Hari Singh lodged first information report (for short FIR) (Ex. A1) stating that on 15.05.1996, at about 6:00 p.m., accused/appellants Rakesh and Mukesh and one Bhakku @ Bhakan Singh armed with rods (LATHI / DANDA), with common intention, assaulted Balbir Singh (deceased) son of complainant and caused head injury. Balbir Singh 3 was immediately taken to nearby hospital from where he was referred to Bareilly for further treatment. Meanwhile on the basis of FIR check report (Ex. A5) was prepared by the police registering crime no. 115 of 1996, relating to offence punishable under section 308 IPC, against the accused Mukesh, Rakesh and one Bhakku @ Bhakan Singh. Injured Balbir Singh who succumbed injuries on 16.05.1996, and the case was thereafter converted into one relating to offence punishable under section 304 IPC. The crime was investigated by Sub-Inspector Harish Chandra Singh (P.W.3). He took dead body of Balbir Singh in his possession and prepared inquest report (Ex. A10), Police Form No. 13 (Ex. A13), sketch of the dead body (Ex. A16), sample seal (Ex. A17). The dead body was sent in a sealed condition for post-mortem examination with Police Form no. 33 (Ex. A9). P.W.5 Dr. Satya Prakash Vashnay conducted post-mortem examination on the dead body of Balbir Singh on 17.05.1996 , and prepared autopsy report (Ex. A8). He found a big haemotoma inside the scalp of the deceased on internal examination and opined in his report that the deceased has died as a result of 4 head injury. After interrogating the witnesses, inspection of the spot, the Investigating Officer submitted charge sheet (Ex. A4) against accused/appellants Mukesh, Rakesh and one Bhakku @ Bhakan Singh for their trial in respect of offence punishable under section 304 and 308 IPC. 4. The Judicial Magistrate, Khatima, on receipt of the charge sheet, after giving necessary copies to the accused, committed the case to the court of Sessions for trial. Learned IInd Additional Sessions Judge, Nainital, on 12.12.1996, after hearing the parties, framed charge of offence punishable under section 304 read with section 34 IPC, against the three accused Mukesh, Rakesh and one Bhakku @ Bhakan Singh who pleaded not guilty and claimed to be tried. Later, an additional charge of offence punishable under section 323/34 IPC, was framed against the three accused regarding voluntarily causing hurt to Hari Singh. On behalf of the prosecution P.W.1 Hari Singh (informant/father of the deceased), P.W.2 Gulab Singh (another eye witness), P.W.3 S.I Harish Chandra Singh (Investigating Officer), P.W.4 Dr. 5 R.C. Sharma (who recorded injury found on the person of Hari Singh on the next day of incident), P.W.5 Dr. Satya Prakash Vashnay (who conducted post-mortem examination) and P.W.6 Amar Singh (declared hostile) were examined. The oral and documentary evidence was put to the accused under section 313 Cr.P.C., in reply to which they alleged the evidence adduced against them is false and they have been falsely implicated due to enmity. However, no evidence in defence was adduced. The trial court, after hearing the parties found that charge as against Mukesh and Rakesh is proved in respect of offences punishable under section 304/34 and 323/34 IPC. However, no charge was said to have been proved beyond reasonable doubt as against the third accused Bhakku @ Bhakan Singh who was acquitted of the charge. The two convicts were heard on sentence, and each one of them was sentenced to rigorous imprisonment for a period of seven years and directed to pay fine of ` 2,000/- (Rupees two thousand only) under section 304/34 IPC, and rigorous imprisonment for a period of three months (under section 323/34 IPC). Aggrieved by said judgment and order dated 13.05.1999, passed 6 by IInd Additional Sessions Judge, Nainital, this appeal was filed by the convicts before the Allahabad High Court on 24.05.1999, where the appeal was admitted. The appeal is received by this Court under section 35 of U.P. Reorganization Act, 2000 (Central Act 29 of 2000) for its disposal. 5. Before further discussion, I think it just and proper to mention the medical evidence on record produced on behalf of the prosecution. Post- mortem report (Ex. A8) read with the statement of P.W.5 Dr. Satya Prakash Vashnay shows that there was no external injury on the body of Bablir Singh but on internal examination it was found that there was a big haemotoma under the scalp. He (P.W.5) opined in the autopsy report (Ex. A8) that the deceased had died of head injury. P.W.5 Dr. Satya Prakash Vashnay stated that injury might have been caused to the deceased on 15.05.1996, at about 6:00 p.m., with lathi or danda. 6. P.W.4 Dr. R.C. Sharma of Primary Health Center, Sitarganj, has stated that on 16.05.1996, he examined injury on the person of Hari Singh (P.w.1) and there was one lacerated wound and 7 one abraded contusion on the head of Hari Singh. He proved his report (Ex. A7) prepared on 16.05.1996, at 1:30 p.m.. 7. P.W.1 Hari Singh (father of the deceased) who is also informant and the eye witness, has stated that on the day of incident at about 6:00 p.m., he and his brother Gulab Singh (P.W.2) were doing hoeing when accused/appellants Mukesh and Rakesh armed with lathi assaulted Balbir Singh and caused head injury. The witness has further stated that a lathi blow was also given over his head by Bhakan Singh (since acquitted). The statement of this eye witness gets corroborated from the medical evidence on record and his evidence cannot be disbelieved lightly. He has also proved that he lodged FIR (Ex. A1) against the accused at the Police Station. He has stated that his injured son was taken to Bareilly for treatment but succumbed to the injuries. 8. The statement of P.W.1 Hari Singh gets further corroborated from the statement of P.W.2 Gulab Singh another eye witness who has also stated that accused/appellants Rakesh and 8 Mukesh assaulted Balbir Singh with lathi and danda. He has also stated that Bhakan Singh gave a lathi blow on the head of Hari Singh. The presence of this witness in his village cannot be disbelieved. 9. Learned counsel for the appellants argued that both the eye witnesses are close relatives of the deceased and as such, their testimony should not be believed. No doubt P.W.1 Hari Singh is father of the deceased, and P.W.2 Gulab Singh is uncle of the deceased but merely for that reason that they are relatives their testimony cannot be disbelieved particularly when P.W.1 Hari Singh is himself an injured eye witness. The presence of P.W.2 Gulab Singh in his village at the time of incident cannot be doubted. As such, this Court does not find force in the argument advanced on behalf of the appellants. 10. Next submission made on behalf of the appellants by Shri R.S. Sammal, counsel for the appellants is that, in the FIR (Ex. A1) it is nowhere mentioned that Bhakku @ Bhakan Singh gave lathi blow on the person of complainant as such, 9 evidence showing him an injured witness should not be believed. No doubt there is discrepancy in the evidence on record on said point, and on account of said fact co-accused Bhakku @ Bhakan Singh has been acquitted by the trial court giving him benefit of reasonable doubt. But as against the accused/appellants, in the opinion of this Court as to the role in commission of culpable homicide not amounting the murder of Balbir Singh, the evidence of the two eye witnesses is clear, specific and trust worthy. 11. Lastly, it is contended that the two eye witnesses have not specified as to whose blow landed on the head of the deceased. On that ground it is argued that neither P.W.1 Hari Singh nor P.W.2 Gulab Singh has witnessed the incident. Having carefully gone through the earlier testimony of the witnesses on record, this Court does not find much force in the contention of the learned counsel of the appellants. When two persons armed with lathis with common intention assault a person and the third one was attacking the complainant, the complainant may not have observed as to whose blow actually landed on the 10 person of the deceased but his testimony on the point that two were assaulting the deceased with common intention cannot be disbelieved. 12. For the reasons, as discussed above, this Court does not find any error in the impugned order passed by the trial court so far as it relates to the offence punishable under section 304 IPC. However, as far as the conviction of the appellants under section 323/34 IPC, is concerned, this Court has no hesitation in accepting the argument of the learned counsel for the appellants that after additional charge was framed in respect of offence punishable under section 323/34 IPC, against the accused/appellants no opportunity of cross- examination was given to them and the conviction on that count (i.e. under section 323/34IPC) cannot be maintained. 13. Accordingly, the appeal is partly dismissed, so far as the conviction and sentence recorded by the trial court against the accused/appellants Mukesh and Rakesh in respect offence punishable under section 304/34 IPC. However, in respect of conviction and sentence 11 relating to charge of offence punishable under section 323 IPC,the appeal is allowed to that extent only. The accused/appellants shall stand acquitted from the charge of offence punishable under section 323/34 IPC. The accused/appellants Mukesh and Rakesh are on bail, their bail are cancelled, and sureties are discharged, they shall surrender before the court concerned who shall made them serve out the sentence awarded by the trial court on the count of section 304/34 IPC. The lower court record be sent back. (Prafulla C. Pant,J.) Parul 21.02.2011