IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Court’s Order whether the case is or not approved for reporting (Chapter VIII, Rule 32(2) (b) Description of Case Criminal Appeal No. 1346 of 2001 (Old No. 957 of 1988) Kunwar Singh & another ….. Appellants Versus State of Uttaranchal …… Respondent Date of decision :-21.12.2006 A.F.R. (Approved for Reporting) Not approved for reporting Date :-21.12.2006 Initials of Judge Note :- Bench Reader will attach this at the top of the first page of the judgment when it is put up before the Judge for signature. - 1 - IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL. Criminal Appeal No. 1346 of 2001. (Old No. 957 of 1988) 1. Kunwar Singh son of Vir Singh, resident of Aampani Colony, P.W. Ramnagar, district Nainital. 2. Gopal alias Ram Gopal, resident of Rehtole, P.S. Sambhal, district Moradabad. …… Appellants. Versus State of Uttaranchal. … Respondent Vijay Laxmi, learned Amicus Curiae for the appellants. Sri Nandan Arya, learned A.G.A. for the State. HON’BLE DHARAM VEER, J. 1. This appeal has been preferred by the appellants against the judgment and order dated 18.04.1988 passed by Sri A.S. Chaudhary, IInd Additional Sessions Judge, Nainital in Sessions Trial No. 92 of 1986 whereby the appellants were convicted under section 333 read with Section 34 of the Indian Penal Code (hereinafter referred as IPC) and each one of them was sentenced to rigorous imprisonment for a period of two years. 2. Briefly stated the prosecution story is that Behari Lal (PW 2) lodged a written report (Ext.Ka.1) to the effect that Kharak Singh- injured (PW 3) was posted as chaukidar at Aam Pani Nursery. The aforesaid Nursery comes within the territory of Ramnagar Range tarai Western Forest Region and is in the reserved forest. On 26.01.1986 at 10.00 p.m. accused Kunwar Singh and Gopal (appellants in the present appeal) came to the hut of Kharak Singh situated in Aam Pani reserved forest, P.S. Ramnagar and was beaten at the hut. His clothes were also torn. The reason for the ‘marpit’ was that the chaukidar had seen the accused persons in the night in his hut. The victim Kharak Singh narrated the incident to Behari Lal who was Range Officer, on the basis of which Behari Lal prepared written report and was produced at the P.S. Ramnagar. On the basis of - 2 - the report of Behari Lal, a case was registered at P.S. Ramnagar and an entry was made in the G.D. (Ext.Ka.7). Injured Kharak Singh was referred to the Joint hospital, Ramnagar. There he was medically examined by Dr. J.C. Durgapal. At the time of examination the doctor has found the following injuries on the person of the injured Kharak Singh: (i) Contusion 4cm X 3 cm over the left upper arm in outer aspect, reddish in colour. (ii) Painful swelling 6 cm X 3 cm over the left middle forearm. Advised X-Ray. (iii) Lacerated wound 2 cm X 2 cm over the right middle lower leg in anterior aspect. Fresh bleeding from the wound. The Medical Officer in his medical report has stated that the Injury No. 2 is kept under observation and X.ray was Advised. The injury report (Ext.Ka.2) is on the record. That injury report was prepared on 27.1.1986 at 1.15p.m. Later on X-Ray was done by Radiologist Dr. G.S. Joshi on 28.1.1986, i.e. Ext.I is on record. After receiving the X-Ray report Dr. J.C. Durgapal had prepared supplementary report. That supplementary report is Ext.Ka.3. In supplementary report the doctor has mentioned that injury No. 2 which was kept under observation is grievous and there is a fracture in the ulna of left arm. The S.I. Dinesh Chandra who is PW 6 has conducted the investigation and in the investigation he has prepared the site plan, i.e. Ext.Ka.5 is on the record. After completing the investigation he has submitted the charge sheet (Ext. Ka.4) which is on the record. On the basis of the abovesaid charge sheet the case was committed on 11.4.1986 by Judicial Magistrate, Nainital. A charge was framed on 11.2.1987 by the learned IInd Additional Sessions Judge, Nainital under section 333 IPC. - 3 - 3. In order to prove the case, the prosecution has produced Dr. G.S. Joshi (PW 1), Behrai Lal (PW 2), Kharak Singh (PW 3), Dr. J.C. Durgapal (PW 4), Bachi Singh (PW 5), S.I. Dinesh Chandra (PW 6) and Amar Nath- constable (PW 7). 4. The accused/appellants were examined under section 313 Cr.P.C. In their statements they have denied the entire prosecution evidence and stated that they have been falsely implicated in this case due to enmity. 5. After appraisal of the material on record, the learned Trial court found the appellants guilty under section 333 read with section 34 IPC and convicted and sentenced the appellants as mentioned above. 6. I have heard learned counsel for both the parties and perused the entire record of the case. 7. As per the prosecution case Kharak Singh who was a chaukidar and on duty in the Aam Pani Forest Range in the reserved forest, on 26.1.1986 at 10.p.m. he saw two persons in the light of torch then he asked them why you people have come here. After hearing these words from the mouth of the injured both the appellants named Gopal and Kunwar Singh who had been recognized by the injured in the light of the torch, had abused him and had told who are you to ask us. After that, the appellants had beaten the injured Kharak Singh by stone and lathi (stick). Due to this Kharak Singh has got the injuries. In the morning of 27.1.1986 Bachi Singh (PW 5) has taken Kharak Singh to the Range office Ramnagar and in the Range office, Ramnagar Kharak Singh has narrated the incident to range Officer Behari Lal. On the basis of the incident whatever Kharak Singh told Behari Lal lodged the report in P.S. Ramnagar at 12.45 p.m. on 27.1.1986 and on the basis of this FIR a G.D. entry was made at serial No. 21 at 12.45 p.m, i.e Ext.Ka.7 on record and a case crime No. 20 of 1986 under - 4 - section 332 IPC was registered. Thereafter Kharak Singh was referred for medical examination and he was medically examined by Dr. J.C. Durgapal on 27.1.1986 at 1.15 p.m. Later on a supplementary report was prepared by Dr. J.C. Durgapal on 4.2.1996 on the basis of X-Ray he found injury No. 2 grievous as the ulna on the left arm is fractured. After that S.I. Dinesh Chandra has completed the investigation who is PW 6 in this case and after taking the statements of all the witnesses and preparation of site plan, he has filed a charge sheet in the court of Judicial Magistrate, Nainital. 8. PW 1 Dr. G.S. Joshi was examined in the court and he has stated that on 28.1.1986 he was posted as Radiologist in Joint Hospital, Ramnagar and on the same day X-Ray was done by him of injured Kharak Singh of the left arm in AP and lateral view. On the basis of the X-Ray he found that the ulna bone of the left arm of the injured in the lower side is fractured. He has proved the X-Ray plate (Ext.1). PW 2 Behari Lal was examined as a witness. He deposed that he is Range Officer and at the relevant time he was posted at Range Officer, Ramnagar. He has proved the FIR (Ext.K.1) which was lodged by him at the P.S. Ramnagar on 27.1.1986 at 12.45 p.m. PW 3 Kharak Singh, injured was examined by the prosecution. He is the injured witness. He has told all that what happens with him. Kharak Singh has stated in his statement that on the date of incident he was posted in Aam Pani Forest department in Nursery water pump as a chaukidar. At 10.00 p.m. in the night on the date of incident, i.e. 26.1.1986 when he was on duty then he had seen two persons in the light of the torch. He asked them as to why they come here. Both these persons/ present appellants Gopal and Kunwar Singh. He has identified these persons in the light of the torch. When Kharak Singh asked them why you had come here then these appellants said who are you to ask this - 5 - Question from us and after that they started abusing Kharak Singh and they had also beaten Kharak Singh by stone and lathi (stick). Due to this Kharak Singh got the injuries. The injury report is Ext.Ka.2 and supplementary injury report is Ext.Ka.3 on record. P.W. 4 Dr. J.C. Durgapal was examined by the prosecution who has proved the injury report (Ext.Ka.2) and supplementary report (Ext.Ka.3). P.W. 5 Bachi Singh was examined by the prosecution, has stated in his statement that he was on duty in Aam Pani in the forest department. In the next morning of the incident when he went to the engine for taking water then Kharak Singh met him. Then Kharak Singh had told him that Gopal and Kunwar Singh had beaten him. Then Bachi Singh had taken Kharak Singh to range Officer Ramnagar Range Officer. PW 6 Dinesh Chandra was the investigating officer of the case. P.W. 7 was the clerk constable who has stated that he had written a chick on the basis of the FIR, i.e. Ext.Ka.6 on record. He has also stated that on the basis of the chick he has registered a case in the G.D.. Copy of G.D. is on record, i.e. rapat No. 21 which is Ext.Ka.7 On the basis of the abovesaid evidence the learned trial court has come to the conclusion that the appellants are guilty under section 333 read with section 34 IPC, convicted and sentenced the appellant to regirous imprisonment for a period of two years. 9. Section 333 IPC is reproduced below: “333. Voluntarily causing grievous hurt to deter public servant from his duty.– whoever voluntarily causes grievous hurt to any person being a public servant in the discharge of his duty as such public servant, or with intent to prevent or deter that person or any other public servant from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by that person in the lawful discharge of his duty as such public servant, shall be - 6 - punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.” 10. Learned counsel for the appellants has argued that it was not proved that Kharak Singh was on public duty on 26.1.1986 at 10.00 p.m. The prosecution has examined PW 2 Behari Lal as a prosecution witness who was a Range Officer in Ramnagar range officer, district Nainital on the abovesaid date and time of the incident and who has also lodged the FIR (Ext.Ka.1) on the basis of which a case was registered and the investigation was started. He has stated I para 2 of his statement, S bl vkneh dh lqcg ls “kke rd M;wVh FkhA [kqn dgk fd pkSfcl ?kaVs dh M;wVh FkhA eSa v/khuLFk deZpkfj;ksa dh M;wVh yxkrk gWwA^^ 11. Kharak Singh (PW 3) who was examined as an injured witness. He has also stated in para 1 of his statement. “djhc lok lky igys dh ckr gS mu fnuksa Hkh eS vkeikuh esa ou foHkkx dh ujljh esa okVj iEi dh pkSdhnkjh ij dk;Zjr FkkA nl ct jkr dks eSa tc M;wVh ij Fkk rks eSaus VksSpZ dh jks”kuh es nks vknfe;ska dks ns[kkA eSus muls iwNk fd D;ks vk;s gSA bu nksuks vknfe;sk ds uke xskikyh vkSj dqaoj flag gS tks vkt gkftj vnkyr gS A budks eSus ?kVuk ds le; VkSpZ dh jks”kuh esa igpku fy;k Fkk A tc eSus dgk fd D;ks vk;s gksa rks bUgksus dgk fd rw dkSu gksrk gS iwNus okykA bl ij bUgksus xkfy;kW nh vkSj eSus Hkh nh A rc bUgksus ew>s iRFkj vkSj ykfB;ksa ls ekjk ftlls eq>s pksVs vkbZ] ogkW ij eq>s cpkus dksbZ ugh vk;k D;ksfd ogkW ij dksbZ vkcknh ugh gsS A lqcg cphflag eq>s mBkdj ujljh ds vkSfQl esa ys x;k vkSj ogkW ls jkeuxj jast vkSfQl eas vk;s A ogkW jsUtj lkgc dks eSus ?kVuk crkbZ fQj mUgksus fjiksVZ fy[kh vkSj fQj eq>s ysdj og Fkkus vk;sA ogkW mUgksus fjiksVZ nh A mlds ckn eq>s jkeuxj vLirky esa MkDVjh eqvkbus ds fy, ys x;s tgkW esjk MkDVjh eqvkbuk o ,Dljs gqvkA bl ?kVuk es esjk ck;kW gkFk VwV x;k FkkA 12. Bachi Singh (PW 5) has also stated in his statement, Sdjhc ,d lky ls vf/kd dh ckr gS mu fnuks es vke ikuh es viuh M;wVh ij Fkk esjh M;wVh QksjsLV foHkkx dh ulZjh esa FkhA eSa tc lqcg batu ij ikuh Hkjus x;k rks ogka ij eq>s [kMad flag feyk] [kMd flag us crk;k fd eq>s pksV yxh - 7 - gS tks eq>s dqaoj flg o xksikyh us ekjk gS fQj eSa [kMd flag dks jasUtj lkgc ds ikl yk;kA^^ 13. From the abovesaid statements it is clear that Kharak Singh was a public servant and in discharge of his duty as such public servant, the appellants had beaten him on 26.1.1986 at 10.00 p.m. in the abovesaid place with intent to prevent him from discharging his duties as public servant and he was on public duty at that time and the appellants had beaten him when he was discharging his duties as a public servant. 14. The learned counsel for the appellants has further contended that there is no motive against the appellants as from the evidence narrated above it is proved beyond reasonable doubt that appellants had beaten Kharak Singh on 26.1.1986 at 10.00 p.m. at Aam Pani Nursery with stone and lathi (stick) and due to this he got the injuries and his ulna bone of the left arm was fractured and that injury is shown as injury No. 2 which is grievous in nature and the injured Kharak Singh had recognized the appellants at the time of the incident in the torch light and there is no reason or circumstance to disbelieve the statement of the injured Kharak Singh. When there is statement of injured Kharak Singh and after considering all the evidence produced by the prosecution I come to a definite conclusion that Kharak Singh was beaten by the appellants on 26.1.1986 at 10.00 p.m. at Aam Pani Nursery. On the basis of the abovesaid prosecution evidence if the motive is not stated then the appellants are not entitled to the benefit of doubt. 15. The learned counsel for the appellants has also contended that the injured was not in sense when he was admitted to the hospital. The FIR was lodged by Behari Lal on 27.1.1986. At 11.00 a.m. when Kharak Singh has reached to the Range Officer, Ramnagar then he has narrated the entire incident to the Range Officer Behari Lal and on the basis of this statement Behari Lal - 8 - has lodged the FIR at 12.45 p.m. and he was admitted to the hospital on 27.1.1986 at 1.15 p.m. From that circumstance it is clear that he has stated the incident to Behari Lal, Range Officer then he was in sense and on the basis of his saying whatever he told to Behari Lal, Behari Lal has lodged the FIR at the Police Station. Thus, this argument of the learned counsel for the appellants has got no force and on the basis of the statement of Kharak Singh and Behari Lal it is proved that when FIR was lodged by Behari Lal, injured Kharak Singh was in sense and the injured Kharak Singh was also in sense when he had narrated the incident abovesaid to Behari Lal on 27.1.1986 at 11.00 a.m. 16. For the above reasons and discussion I come to the definite conclusion that the charge against the appellants/accused was rightly round to have been proved beyond doubt by the learned II Addl. Sessions Judge, Nainital and there are no cogent grounds to interfere with the Judgment of conviction of the appellants under Section 333 read with section 34 IPC 17. In view of the above discussion, I am of the view that the learned trial court has rightly found the appellants guilty under section 333 read with section 34 IPC and no interference need to be required by this Court. The conviction and sentence awarded by the trail court are maintained. The appeal lacks merit and is dismissed. 18. Let a copy of this judgment alongwith the record of the case be sent to the trail court for needful compliance under intimation to this Court within four months. (Dharam Veer, J) Dated:21.12.2006. Negi