IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.950 OF 2001 (OLD NO.1134/1994) Jahangir & another ……… Appellants Versus The State ……… Respondent Dated: July 24, 2009 Mr. Vinod Sharma, Advocate for the appellant Mr. M.A. Khan, learned brief holder for the State HON. DHARAM VEER, J. This appeal, preferred by the appellants u/s 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 19.7.1994 passed by Additional Sessions Judge, Roorkee in S.T. No.25/1992, State Vs. Naseem & another, whereby the learned Addl. Sessions Judge convicted the accused/appellants Naseem and Jahangir under Sections 324 r/w Sec.34 of the Indian Penal Code, 1860 (hereinafter to be referred as the IPC) and sentenced them to undergo R.I. for one year. Each of the accused/appellants were further convicted u/s 333 r/w Sec.34 IPC and were sentenced to five years’ R.I. with a fine of Rs.1,000/- each. In default of payment of fine, six months’ additional imprisonment was awarded. 2. Heard Mr. Vinod Sharma, learned counsel for the appellant and Mr. M.A. Khan, learned brief holder for the State. Perused the entire material available on record. 3. During the pendency of this appeal the appellant no.1-Naseem reported to be died. Accordingly, the appeal preferred by the accused/appellant Naseem 2 stood abated vide order of this High Court dated 16.03.2009. 4. In brief, the prosecution case is that Dr. Narayan Singh (PW1) lodged the FIR at P.S. Manglore stating therein that on 18.1.1990 at 07:30 AM, the accused/appellant Jahangir with a horse came to him and started smoking cigarette near to him. He requested the appellant Jahangir not to smoke cigarette due to which he (Jahangir) felt annoyed. When he again requested the appellant Jahangir for the same then the appellant Jahangir used abusive language. A boy who was along with the appellant Jahangir threatened him for dire consequences and after they went from there. Due to fear of untoward incident in future, he went to police chowki and narrated the entire incident to In-charge Police Chauki. The accused Jahagir was also called there. After sometime the accused Naseem along with some other persons also came there and asked him to do compromise. He along with them went to police chowki where compromise took place between both the parties. Thereafter he came to Veterinary Hospital and started doing his job. Then at 09:30 AM, the accused Naseem came there and sat on the bench near to him. Accused/appellant Jahangir also came from the back side of the door and inflicted a blow of axe on him which hit on his head. Accused Naseem also started assaulting him with Danda. Another boy who had given threat to him in the morning also caused injuries to him with knife. Raj Kumar (PW2), Vedu, Mahendra, Jagbeer, who were present at the place of occurrence rescued him from the accused/appellants and also made noise. Seeing the number of people coming there, the accused/appellants fled from the place of incident. It was further alleged that before going from there, the accused Naseem and 3 Jahangir gave threat to his life. With the above-said averments, Sri Narayan Singh (PW1) lodged the FIR at Police Station, Manglore on 18.1.1990 at 02:30 PM. That FIR is Ext.Ka-2. On the basis of this FIR, Chik FIR (Ext.Ka-6) was prepared by Head Mohirror Karan Singh. Necessary entries were also made in the GD, carbon copy of which is Ext.Ka-7. On the same day at 11:15 AM, injured Narayan Singh got medically examined by PW3 Dr. N.D. Arora, Medical Officer, who prepared his injury report, which is Ext.Ka-4. X-ray of the injured was also done, which was conducted by PW4 Dr. J.G. Garg, Radiologist. X-ray report is Ext.Ka-5. The investigation of this case was entrusted to Sub Inspector R.S. Tiwari, who during the course of investigation, recorded the statements of the witnesses, inspected the place of occurrence and thereafter prepared the site-plan, which is Ext.Ka-8. The I.O. also took into possession the bloodstained apron of the injured and the FARD thereof was prepared, which is Ext.Ka-3. On completion of the investigation, the I.O. submitted the charge sheet against the accused/appellants. That charge sheet is Ext.Ka-9. 5. Learned Judicial Magistrate, Roorkee, on receipt of charge sheet, committed the case to the court of Sessions on 20.1.1992, after giving necessary copies to the accused/appellants as provided u/s 207 Cr.P.C. 6. It seems from record that the case was transferred to Addl. Sessions Judge for hearing and disposal as per the law. 7. On 17.3.1992, learned IInd Assistant Sessions Judge, Roorkee framed the charge against the accused/appellants Naseem and Jahangir u/s 307 r/w 4 Sec.34 IPC and Sec.333 r/w Sec.34 IPC. The charge was read over and explained to the accused/appellants, who pleaded not guilty and claimed to be tried. 8. To prove its case, the prosecution examined PW1 Narayan Singh, injured eyewitness and complainant of the case; PW2 Raj Kumar, eyewitness; PW3 Dr. N.D. Arora, who medically examined the injured; PW4 Dr. J.G. Garg, who conducted the X-ray of the injured and PW5 R.S. Tiwari, Investigating Officer of the case. 9. Thereafter the statements of the accused/appellants were recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to each of them in question form, who denied the allegations made against them. They did not produce any documentary evidence in their defence, however, in oral evidence, DW1 Fazal and DW2 Jagbeer Singh were produced. 10. After appreciating the entire evidence available on record and hearing learned counsel for the parties, learned Addl. Sessions Judge, Roorkee vide his judgment and order dated 19.7.1994 convicted and sentenced the accused/appellants as stated above. Against the said judgment and order, the accused/appellants have preferred the present appeal. 11. Before further discussion, it is pertinent to mention the injuries found on the person of Dr. Narayan Singh, who got medically examined by Dr. N.D. Arora (PW3) on 18.1.1990 at 11:15 AM and who also prepared the injury report Ext.Ka-4, which reads as under:- (i) Incised wound on the scalp on front parietal area 4 cm x 1 cm x bone deep 5 present on the top aspect 11 cm away from the right eye, 12 cm away from left ear. (ii) Contusion on the right knee joint 6 cm x 4 cm on the inner aspect. (iii) Contusion on the back of shoulder 4 cm x 3 cm on the back of shoulder 2 cm away from tip of shoulder, skin abraded. (iv) Abrasion on the back of left hand 3 cm x 2 cm, 3 cm away from wrist joint. (v) C/o pain in the knee joint Remarks:- All injuries are fresh, injury no.1 is by sharp edged weapon, Injury no.2, 3 and 4 are by blunt weapon, injury no.1 kept under observation, X-ray advised. 12. X-ray of the injured was also conducted, which was done by PW4 Dr. J.G. Garg, Radiologist. He prepared the X-ray report (Ext.Ka-5), which reads as under:- “In skiagram there is fracture of left parietal bone of skull seen, and marked by arrows.” 13. To prove the aforesaid reports, the prosecution has examined PW3 Dr. N.D. Arora and PW4 Dr. J.G. Garg. 14. PW3 Dr. N.D. Arora, Medical Officer stated that on 18.1.1990 at 11:15 AM he medically examined the injured Dr. Narayan Singh and found the above-noted injuries on his body. He has proved the injury report Ext.Ka-4 prepared by him. 6 15. PW4 Dr. J.G. Garg, Radiologist stated that on 19.1.1990 he conducted the X-ray of the injured Dr. Narayan Singh. He prepared the X-ray report (Ext.Ka-5). He has proved the plates Ext.1 and Ext.2. 16. Further to prove its case, the prosecution has examined PW1 Dr. Narayan Singh who stated that on 18.1.1990 he was posted at Veterinary Hospital, Manglore. At 07:30 AM, the accused/appellant Jahangir alongwith a boy and horse came to him and started smoking cigarette near to him. He requested the appellant Jahangir not to smoke cigarette near him due to which he (Jahangir) resented. When he again requested the appellant Jahangir for the same then he used abusive language. A boy who was with the appellant Jahangir threatened him for dire consequences and went to take the accused Naseem. Due to fear of untoward incident in future, he went to police chowki and narrated the entire incident to In-charge Police Chowki. The appellant Jahagir was also called there. After sometime the accused Naseem along with some other people also came there and asked him to do compromise. He along with them went to police chauki where compromise took place between both the parties. The document of compromise is Ext.Ka-1, which was written by Fazal Illahi. Appellant Jahangir and he signed on the said compromise. Thereafter he came to Veterinary Hospital and started doing his job. There the accused Naseem came to him and started abusing him. Meanwhile, accused/appellant Jahangir came from the back side of the door and inflicted a blow of axe on him which hit on his head. Accused Naseem also started assaulting him with Danda. At the time of incident, Raj Kumar (PW2), Jagbeer Singh, Vedu and some other people gathered there, who rescued him from the accused/appellants. He 7 further deposed that before going from there, the accused Naseem gave threat to his life. He lodged the report (Ext.Ka-2) of the said incident. He was also got examined. He has proved the FARD Ext.Ka-3 and the apron Ext.1. 17. PW2 Raj Kumar, who is the eyewitness of the case has corroborated the statement of PW1 Dr. Narayan Singh. 18. PW5 R.S. Tiwari stated that on 18.1.1990 the investigation of this case was entrusted to him. On the basis of FIR (Ext.Ka-2), chik FIR (Ext.Ka-6) of the case was prepared by the Head Mohirror. Necessary entries were also made by the H.M., carbon copy of which is Ext.Ka-7. During the course of investigation, he recorded the statements of the witnesses, inspected the place of occurrence and prepared the site-plan (Ext.Ka-8). He also took into possession the blood stained apron of the injured and thereafter prepared a FARD Ext.Ka-3. After completing the investigation, he submitted the charge sheet against the accused/appellants, which is Ext.Ka-9. 19. Thereafter the statements of the accused/appellants were recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to each of them in question form, who denied the allegations made against them. They did not produce any documentary evidence in their defence, however, in oral evidence, DW1 Fazal and DW2 Jagbeer Singh were produced. 20. DW1 Fazal Illahi stated that on 18.1.1990 compromise between Dr. Narayan Singh and the accused/appellant Jahangir had taken place in the police 8 chowki. Document of compromise was written by him, which is Ext.Ka-1. 21. DW2 Jagbeer Singh, Veterinary Pharmacist brought the out patient register of the Manglore Hospital with him. He stated that on 18.1.1990 he had gone to Saharanpur for some official work. 22. Sri Vinod Sharma, learned counsel for the accused/appellant submitted that as per the evidence discussed above, the offence u/s 333 IPC and 324 IPC is not made out against the accused/appellant only the offence u/s 332 IPC is made out. I find force in this argument. A perusal of the injury report (Ext.Ka-4) as well as the X-ray report (Ext.Ka-5) reveals that there is no injury of such nature which is grievous or dangerous to life of the injured Dr. Narayan Singh and even Dr. N.D. Arora and Dr. J.G. Garg, who were got examined by the prosecution to prove the injury report and the X-ray report as PW3 and PW4, respectively have not stated in their deposition that the injuries of Dr. Narayan Singh were dangerous to life or grievous in nature. As such, in absence of evidence that the injuries sustained by the injured were grievous in nature, the case falls u/s 332 in place of Sec.333 IPC. 23. As per the evidence of PW1 Dr. Narayan Singh on the date of incident i.e. on 18.1.1990 at 09:30 AM, the accused/appellant Jahangir assaulted him with axe at Veterinary Hospital, Manglore as a result of which he received injuries. The statement of this witness finds full support from the statement of PW2 Raj Kumar. Besides this, his statement further gets corroboration from the medical evidence of PW3 Dr. N.D. Arora and PW4 Dr. J.G. Garg as well as from the injury report Ext.Ka-4 and X-ray 9 report Ext.Ka-5. As such, the accused/appellant Jahangir voluntarily caused hurt to Dr. Narayan Singh, a public servant and also prevent him from discharging his duty as public servant and thus committed an offence punishable u/s 332 IPC. 24. Learned counsel for the accused/appellant further submitted that the offence u/s 332 IPC is made out against the accused/appellant and he does not want to challenge it on the point of conviction. He further submitted that the accused/appellant Jahangir is 48 years’ old now and he is living with his family, who are entirely dependent on him. He is facing the present case for more than 18 years in trial court and the appellate court and except this crime he has not committed any other crime before or after this incident. It was further submitted that in connection with the said crime the appellant Jahangir has remained in jail from the period 30.1.1990 to 2.3.1990 and from 19.7.1994 to 31.8.1994 i.e. for about two and a half months. Hence, he prayed that the sentence against the appellant/accused may be reduced to the sentence already undergone by him. After verifying from records, learned Brief Holder for the State also conceded on the point that the accused has remained in jail during the aforesaid period. 25. After considering all the facts and circumstances of the case and hearing learned counsel for the parties and especially the nature of injuries, I think it just and proper that the sentence awarded against the appellant be reduced to the sentence already undergone by him. 26. For the reasons recorded above, the appeal is partly allowed. The judgment and order dated 19.7.1994 passed by Additional Sessions Judge, Roorkee in S.T. 10 No.25/1992, State Vs. Naseem & another, is modified to the extent that the conviction and sentence imposed by the court below u/s 333 and 324 IPC is set aside and he is convicted u/s 332 IPC. However, under the aforesaid section, the accused/appellant is sentenced to the period already undergone by him. (As far as the appeal preferred by the accused/appellant Naseem is concerned, it has already been abated due to his death). 27. Let the record of the case be sent back immediately to the trial court concerned for compliance of the order. (Dharam Veer, J.) 24.07.2009 RG