IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL JAIL APPEAL NO.462 OF 2001 (Old No.82/1995) Balak Giri S/o Ravidas @ Krishna, R/o Dadukheri, Bado Mevana, P.S. Inar, Distt. Sipri (MP) ……… Appellant Versus The State ……… Respondent Dated: May 21, 2009 Sri R.C. Tamta, learned amicus curiae for the appellant Sri M.A. Khan, learned brief holder for the State HON. DHARAM VEER, J. This criminal jail appeal, preferred under section 374(2) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 22.06.1994 passed by Sessions Judge, Haridwar in Sessions Trial No.341/1993, State Vs. Balak Giri, whereby the learned Sessions Judge has convicted the appellant/accused u/s 304 of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced him to six years’ rigorous imprisonment. 2. I have heard Sri R.C. Tamta, learned amicus curiae for the appellant and Sri M.A. Khan, learned brief holder for the State and perused the entire material available on record. 3. In brief, the prosecution case is that Constable Jagat Singh (P.W.2) lodged an FIR orally at Police Chowki Har-ki-Pauri, Haridwar stating therein that on 15.6.1993, he along with Constables Dharam Veer, Surendra Singh 2 (P.W.1) and Prithvi Raj, while on patrolling duty, were coming towards Sanjay Bridge from Subhash Ghat, then at about 1:15 P.M. when they reached at Sanjay Bridge below Har-ki-Pauri, they saw a crowd. While going further in front of Gangaram Dharamshala and Ravidas Temple, they saw that a saint causing injury to a lady saint by Danda. The said saint caused injury on the head of that lady saint due to which blood was oozing out and that lady saint became unconscious due to the serious injuries sustained by her. Therefore, the said saint was arrested on the spot and that saint disclosed his name Balak Giri (appellant/ accused). After that the appellant/accused and that injured lady saint were brought to the Police Chowki. On the basis of this FIR, Chik FIR was prepared on 15.6.1993 at 1:30 P.M., by H.M. Madan Pal, i.e. Ex.Ka-3. The said Danda, one side of which was bloodstained, was also taken into custody and a Fard was prepared, i.e. Ex.Ka-1. The investigation of this case was entrusted to P.W.8 S.I. Santosh Kumar. The said injured lady saint was medically been examined by P.W.5 Dr. V.K. Bhatt on 15.6.1993 at 1:45 P.M. and injury report Ex.Ka-4 was prepared. On the same day i.e. on 15.6.1993, the said injured lady saint succumbed to her injuries. Thereafter, the inquest report Ex.Ka-6 was prepared by P.W.7 S.I. Kamleshwar Sharma. Along with the inquest report, other necessary documents viz. sketch of dead body Ex.Ka-7, Challan Lash Ex.Ka-8, letter to CMO, Hardwar for conducting the post-mortem Ex.Ka.9, letter to S.P.O., Haridwar for taking the finger prints Ex.Ka-10 and specimen of seal Ex.Ka-11, were prepared. After that the dead body was sent for the post- mortem and the autopsy on the dead body was conducted on 16.6.1993 at 1:00 P.M. by P.W.6 Dr. T.S. Parmar and the post-mortem report Ex.Ka-5 was 3 prepared. During the course of investigation, the I.O. inspected the place of occurrence and prepared the site plan, i.e. Ex.Ka-12. During the course of investigation, the I.O. recorded the statements of witnesses and after completing the investigation, filed the charge sheet against the appellant/accused, i.e. Ex.Ka-13. 4. After receiving the charge sheet, CJM, Haridwar has committed the case to the court of Sessions on 11.08.1993 after giving necessary copies to the appellant/accused as provided under Section 207 Cr.P.C. 5. Learned Sessions Judge, Haridwar has framed the charge against the appellant/accused u/s 304 IPC. The charge was read over and explained to appellant/ accused, who pleaded not guilty and claimed to be tried. 6. To prove its case, the prosecution has examined P.W.1 Constable Surendra Singh, eyewitness, P.W.2 Constable Jagat Singh, complainant and eyewitness, P.W.3 Daya Shankar, eyewitness, P.W.4 Ganga Saran, eyewitness, P.W.5 Dr. V.K. Bhatt, who initially medically examined the injured lady saint, P.W.6 Dr. T.S. Parmar, who conducted autopsy on the dead body, P.W.7 S.I. Kamleshwar Sharma, who prepared the inquest report, P.W.8 S.I. Santosh Kumar, I.O. of the case and P.W.9 Constable Rajbal Singh, who took the dead body for conducting the post-mortem. 7. After that the statement of the appellant/ accused was recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to him in question form, who denied the allegations made against him and stated that he has been falsely implicated. However, in defence, he did not produce any oral or documentary evidence. 4 8. After hearing learned counsel for the parties and appreciating the entire material available on record, the learned Sessions Judge, Haridwar vide judgment and order dated 22.06.1994 convicted and sentenced the appellant/accused as discussed above. Feeling aggrieved, the accused/appellant has preferred the present appeal through jail. 9. Before further discussion, it is pertinent to mention that the said injured lady saint was initially medically examined by P.W.5 Dr. V.K. Bhatt and the following injuries were found in the injury report Ex.Ka.4): - 1. “Lacerated wound 4 cms x 1 cm x bone deep on left eyebrow at its lateral end, fresh bleeding present 2. Lacerated wound 2 cms x 1 cm x bone deep on right side head, 6 cms from right ear, fresh blood oozing. 3. Contusion 10 cms x 10 cms x on left temporal region 4. Contusion 5.5. cms x 5 cm on left face & under left eye. Eye is swollen & ecchymosed 5. Contusion with swelling 3 cms x 2.5 cm on and around right eye. Eye is swollen and ecchymosed 6. Lacerated wound 2 cms x 0.5 cm x through & through on front of nose 7. Lacerated wound 3 cms x 1 cm x muscle deep on right side upper lip, fresh blood oozing 5 8. Lacerated wound 2 cms x 1 cm x through & through on left side lower lip. Fresh blood oozing. Gums are lacerated, teeth broken, fresh bleeding from mouth and nostrils present. 9. Abrasion 6 cms x 3 cms on front & middle of left forearm 10. Abrasion 10 cms x 1.5 cms on front of right forearm at upper and inner side.” Opinion- Patient is unconscious, pulse 120/min. Feeble B/P 100/70, Pupils, both eyes swollen, profuse bleeding form nose and mouth. All above injuries kept under observation except injury no.9 & 10, advised x-ray skull & face. Injury nos.9 & 10 are fresh caused by hard blunt object. 10. To prove the above-said injury report, the prosecution got examined P.W.5 Dr. V.K. Bhatt who has proved the injury report Ex.Ka-4 prepared by him. He has stated that the injuries were fresh and could be caused on the same day at 1:15 P.M. by some blunt weapon like Danda. The patient was admitted in the hospital. 11. On the same day i.e. on 15.6.1993, the said lady saint succumbed to her injuries. On 16.6.1993 at 1:00 P.M., post-mortem on the dead body of deceased was conducted by P.W.6 Dr. T.S. Parmar and the following ante-mortem injuries were found: - 1. “S/w 2 cm x 2 stretch on right side head on cutting seen, the wound is bone deep. 2. S/w 4 cm x 3 stretch on left eyebrow 3. Contusion 10 cm x 6 cm on left temporal region 6 4. Contusion 5 cm x 5 cm on face left 5. Contusion 3 cm x 2 cm around the right eye 6. L/W 2 cm x 0.5 cm on nose 7. S/w 2 cm x 3 stretch on upper lip 8. L/w 2 cm x 1 cm on lower lip 9. Abrasion 6 cm x 3 cm on front of left forearm 10. Abrasion 10 cm x 1.5 cm on right forearm Cause of death was shown as shock & hemorrhage due to ante-mortem injuries.” 12. To prove the above-said post-mortem report, the prosecution got examined P.W.6 Dr. T.S. Parmar who has proved the post-mortem report Ex.Ka-5 prepared by him. He has stated that the deceased had died on 15.6.1993 at 3:25 P.M. due to the above-said ante- mortem injuries. 13. To further prove its case, the prosecution has examined P.W.1 Constable Surendra Singh who has stated that on 15.6.1993 he was posted at Harki Pauri Chowki and at 1:15 P.M. he along with Constables Jagat Singh (P.W.2), Prithvi Raj and Dharamveer Singh was going on patrolling duty towards Harki Pauri from Subhash Ghat. At about 1:15 P.M., he saw a crowd below Sanjay Bridge and after reaching there, he along with his associates saw that a saint was causing injury to a lady saint with Danda and the blood was oozing out from the head and mouth of the said lady saint and that lady became unconscious there. Then he along with his associates arrested that saint and the said Danda was 7 also taken into possession. That saint disclosed his name Balak Giri (appellant/accused). He further stated that he and his associates took the appellant/accused and that lady along with that Danda at Chowki and the injured lady was sent to Civil Hospital. Constable Jagat Singh (P.W.2) orally lodged the report at the Police Chowki and the said Danda was admitted in the Chowki. A Fard of the said Danda was also prepared i.e. Ex.Ka-1 and the Danda was exhibited as Ex.1. He further stated that the said injured saint died on the same day in the hospital. This witness was cross-examined at length by the defence counsel but nothing has come out in his statement which may create any doubt in his statement. The statement of this witness is reliable and believable. 14. The statement of P.W.1 Constable Surendra Singh also got corroborated from the evidence of P.W.2 Constable Jagat Singh, P.W.3 Daya Shankar and P.W.4 Ganga Sharan. P.W.2 Constable Jagat Singh has also proved the Chik FIR Ex.Ka-3 and Danda Ex.1. 15. P.W.7 S.I. Kamlesh Sharma who has stated that on 15.6.1993 she was posted at P.S. Kotwali Haridwar. She reached hospital after getting the information of an unknown lady and conducted the proceedings of inquest report and prepared inquest report, sketch of dead body, Challan Lash, letter to CMO and to SPO i.e. Ex.Ka-6 to Ex.Ka-10 respectively. She also proved the specimen of seal i.e. Ex.Ka-11. After that the dead body was sent for post-mortem. 16. P.W.8 S.I. Santosh Kumar who has stated that in June, 1993 he was posted as S.I. at Harki Pauri Chowki. On 15.6.1993 at 1:30 P.M., this case was registered in the Chowki and he conducted the 8 investigation of this case. He inspected the place of occurrence and prepared the site plan i.e. Ex.Ka-12. During the course of investigation, he recorded the statements of witnesses and after completing the investigation, he filed the charge sheet against the appellant/accused, i.e. Ex.Ka-13. He further stated that the entry of registering the case was also made in the G.D. by H.M. Madan Pal, i.e. Ex.Ka-14. 17. P.W.9 is Constable Rajbal Singh who has stated that on 15.6.1993 after the completion of inquest by S.I. Kamlesh Sharma, he was given the dead body for conducting the post-mortem. He took the dead body before the doctor and till when the dead body was in his custody, no body was allowed to touch it. 18. After that the statement of the appellant/ accused was recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to him in question form, who denied the allegations made against him and stated that he has been falsely implicated. However, in defence, he did not produce any oral or documentary evidence. 19. Sri R.C. Tamta, learned amicus curiae for the appellant/accused argued that in view of the above-said discussion, he does not want to challenge the conviction and sentence of the appellant/accused as awarded by the trial court. 20. Even otherwise, to prove its case, the prosecution got examined P.W.1 Constable Surendra Singh who has stated that on 15.6.1993 he was posted at Harki Pauri Chowki and at 1:15 P.M. he along with Constables Jagat Singh (P.W.2), Prithvi Raj and Dharamveer Singh was going on patrolling duty towards 9 Harki Pauri from Subhash Ghat. At that time, he saw a crowd below Sanjay Bridge and after reaching there, he and his associates saw that a saint was causing injury to a lady saint with Danda and the blood was oozing out from the head and mouth of the said lady saint and that lady became unconscious there. Then he along with his associates arrested that saint and the said Danda was also taken into possession. That saint disclosed his name Balak Giri (appellant/accused). He further stated that he and his associates took the appellant/accused and that lady along with the Danda, which was used in the crime, in the Police Chowki and the injured lady was sent to Civil Hospital. Constable Jagat Singh (P.W.2) orally lodged the report at the Police Chowki and the said Danda was deposited in the Chowki. A Fard of the said Danda was also prepared i.e. Ex.Ka-1 and the Danda was exhibited as Ex.1. He further stated that the said injured saint died on the same day in the hospital. The statement of P.W.1 Constable Surendra Singh is reliable, believable and natural and got corroborated from the statements of P.W.2 Constable Jagat Singh, P.W.3 Daya Shankar and P.W.4 Ganga Sharan, who are also the eyewitnesses of the incident. P.W.2 Constable Jagat Singh has also proved the Chik FIR Ex.Ka-3 and Danda Ex.1. Besides this, P.W.5 Dr. V.R. Bhatt has stated that the injuries recorded on the person of lady (lady saint) were fresh and could be caused on the same day at 1:15 P.M. by some blunt weapon like Danda. The patient was admitted in the hospital. On the same day, the said lady saint succumbed to her injuries in the hospital. On 16.6.1993, the post-mortem on the dead body of that lady saint was conducted by P.W.6 Dr. T.S. Parmar and cause of death was shown as shock & hemorrhage due to ante-mortem injuries. Thus, the medical report (Ex.Ka-4) as well as 10 the post-mortem report (Ex.Ka-5) also supports the version of P.W.1 Constable Surendra Singh. 21. In view of the above-said discussion, the prosecution has fully proved its case against the appellant /accused beyond reasonable doubt u/s 304 IPC and the trial court was correct and justified in convicting and sentencing the appellant/accused as discussed above. I also concur the view taken by the trial court in convicting and sentencing the appellant/accused as discussed above and there is no ground to interfere with the judgment and order passed by the trial court. 22. Learned amicus curiae for the appellant further submitted that the appellant/accused Balak Giri has been released from jail after serving out the sentence as awarded by the trial court. Sri M.A. Khan, learned Brief Holder also conceded to this point and filed a copy of the letter sent by Jailor, Sub-Jail Roorkee, Haridwar, on the basis of which he submitted that the appellant/accused Balak Giri has been released from jail on 17.3.1998 after serving out his sentence. 23. For the reasons as recorded above, the appeal is devoid of merits and is dismissed. The judgment and order dated 22.6.1994 passed by Sessions Judge, Haridwar in S.T. No.341/93, State Vs. Balak Giri, is hereby affirmed. However, at the cost of repetition, it is stated that the appellant/accused Balak Giri has been released from jail after serving out his sentence. (Dharam Veer, J.) May 21, 2009 Rajeev Dang