In the High Court of Uttaranchal, at Nainital. Criminal Appeal No. 522/2001 (Old No. 3392/1984) Laxman Singh S/o Fateh Singh R/o Village and Patwari Circle Dankot, P.S. Kirti Nagar, District Tehri Garhwal …. Appellant. Versus State of U.P. …. Respondent. Sri L.K. Tewari, learned counsel for the appellant. Sri Nandan Arya learned A.G.A. for the respondent. Hon’ble B.C. Kandpal, J. This appeal has been preferred by the appellant against his conviction and sentence passed by the Sessions Judge Tehri Garhwal, vide his judgment and order dated 21-7-1984 in S.T. No. 4 of 1984, thereby convicting the accused/appellant U/Ss 307, 504 and 506 I.P.C. and sentencing him to undergo R.I. for five years U/S 307 I.P.C.; R.I. for one year U/S 504 I.P.C. and R.I. for three years U/S 506 I.P.C. All the sentences were to run concurrently. 2- Briefly stated the prosecution case is that accused Laxman Singh and complainant Pratap Singh and the witnesses are residents for Village Kuri Aduli, Distrcit Tehri Garhwal. There was enmity between the accused and the complainant relating to some landed property. The accused had also old enmity with Shivraj Singh injured witness. On account of the enmity, it is alleged that on 14-12-1982 at about 8-9 P.M. the accused laxman Singh came with a naked Khukari in his hand with an intention to kill the informant and his family members and stood in the courtyeard of the house of the informant and started 2 abusing him and his family members and also threatened to kill them. The family members of the informant bolted the doors from inside due to the fear of the accused and raised alarm. Hearing the alarm of the informant and his family members, the witnesses, including Shivraj Singh came to the scene of the occurrence, forbade the accused from committing any offence. The accused told Shivraj Singh that since he was the companion of the informant, let him be killed first and the attacked by means of the Khukri on Shivraj Singh, who bent backwards and tilted his head and instead of being injured on the neck, at which the blow was intended by the accused, he was injured on the lower part of the leg and bleeding had started from the injuries. Shivraj Singh fell down and became unconscious. The occurrence was witnessed by informant Pratap Singh and his family members, viz. Jeet Singh and Inder Singh and also one Fate Singh who had come there with a lantern in his hand and who was the father of the accused himself. At the time of the occurrence the witnesses had torches and in the torch lights and the light of the lantern the occurrence was witnessed by the persons present at the spot. Soon after the occurrence the accused fled away. Witnesses Inder Singh and Jeet Singh chased him but he started pelting stones at them and he could not be caught hold of. In a hurry the accused had left the blood-stained Khukri at the spot. The lantern possessed by Fate Singh was also stained with blood when the blood gushed out of the injuries of the victim. Thereafter, Rajendra Singh, Pradhan of the village was called. The Pradhan took into possession the blood- stained Khukari and lantern and locked them inside a box. It was late hours of night, hence no steps were taken any further. In the next morning injured Shivraj 3 Singh was taken to Augastmuni Hospital and the Medical Officer examined him for his injuries. Attempt was made to lodge the report with the Patwar of the Circle but as the he was on casual leave, no report could be lodged on 15-12-1982. On 16-12-1982 he along with the written report, and injury report, of injured Shivraj Singh went to Patwari Circle Futgarh Dankot and lodged the F.I.R., Ext. Ka.1 there. On the basis of the written report, chick F.I.R., Ext. Ka.3 was prepared and a case U/Ss 307/323/ 324/504/506 I.P.C. was registered against the accused in the General Diary at report No. 131 dated 16.1.21982, the carbon copy of which is Ext. Ka.4. The investigation in the matter was started by patwari Dheeraj Mani Uniyal. He visited the place of the occurrence on 17- 12-82 where Pradhan of the village handed over him blood-stained Khukari and lantern and he sealed the articles and prepared recovery memo, Ext. Ka.2. The I.O.at the instance of the witnesses prepared site-plan, Ext. Ka.5 of the place of the occurrence. He also took into possession the blood stained earth vide memo Ext. Ka.6 On completion of investigation, he submitted charge sheet, Ext. Ka.7 against the accused. 3- The Sessions Judge on committal of the case, framed charges U/Ss 307, 504 and 506 I.P.C. against the accused. He pleaded not guilty to the charges and claimed to be tried. 4- The prosecution to prove its case produced P.W. 1, Pratap Singh, P.W.2, Shivraj Singh, P.W.3, Rajendra Singh, P.W.4 Jeet Singh, P.W. 5, Inder Singh, P.W.6, Dheeraj Mani Uniyal, and P.W.7, Dr. S.S. Rawat. 4 5- Out of the witness produced by the prosecution , P.W.1 is the informant of the case. He is also the eyewitness of the occurrence. P.W.2, Shivraj Singh is the injured-eyewitness. Both the witnesses have narrated the prosecution story and have supported each other. 6- P.W.3, Rajendra Singh is the village Pradhan, who had also reached at the scene of the occurrence and he had taken into possession the blood-stained Khukari and lantern and had handed over to the I.O. when the I.O. had visited the village of the occurrence during the investigation. 7- P.W.4, Jeet Singh and P.W.5, Inder Singh are independent eyewitnesses of the occurrence. Both of them have supported the prosecution case fully. They have alleged that at the time of the occurrence accused was armed with naked Khukari and he was threatening the complainant and his family members. Complainant was standing in his Chhaja having a torch in his hand and Fate Singh, father of the accused was also standing at the place of the occurrence with lantern. Both of them have categorically stated that as soon as the accused saw Shivraj Singh at the place of the occurrence the accused attacked with Khukari at his neck, at his Shivraj Singh bent backwards and tilted his head and instead of being injured on the neck, at which the blow was intended by the accused, he was injured on the lower part of the leg and bleeding had started from the injuries. Shivraj Singh fell down and became unconscious. 8- P.W.7, Dr. S.S. Rawat has medically examined the injured Shivraj Singh on 15.12.82 at 10.30 A.M. at Primary Health Center Augastmuni and had prepared 5 injury report, Ext. Ka. 8. The doctor has found the following injuries on his person:- 1- Incised wound on the medial side of right leg, 7cm above the lower end of ribula whch lied obliquely backwards. It was 3cm long, 2cm wide and 0.3 cm deep having sharp margins. The wound was covered with thick clotted blood. Surounding area was normal in colour. 2- Superficial abrasions over the front of left leg, 5cms below the patella. It was 3cm long and 1.5cm wide and lied vertically in front of leg. The injured area was redish in colour. In the opinion of the medical officer both the injures were simple in nature and injury No.1 was caused by some hard object having sharp margins and it could be caused by Khukari as well and the injury No.2 was caused by hard object having rough surface including the fall of the victim on any rough surface. The duration of the injuries was opined to be 8 to 12 hours. 9- P.W.6, Dheeraj Mani Uniyal, is the I.O. of the case and has proved the prosecution papers prepared by him during the investigation. 10- The accused in his statement U/S 313 Cr.P.C. has denied the prosecution allegations and stated that he has been falsely arrested and sent to jail. No evidence has been adduced in the defence. 11- The learned Sessions Judge, on appreciation of evidence on record, held the accused/appellant guilty for the offences U/Ss 307, 504 and 506 I.P.C. and sentencing him to undergo R.I. for five years U/S 307 I.P.C.; R.I. for one year U/S 504 I.P.C. and R.I. for 6 three years U/S 506 I.P.C. All the sentences were to run concurrently. 12- Learned counsel for the accused/appellant has argued that the accused had no intention to commit murder of the injured Shivraj Singh. Infact the accused has not committed any occurrence and he has been falsely implicated due to the enmity with the complainant. 13- To consider the argument advanced by the learned counsel for the appellant, it will be proper to deal with the prosecution evidence in the case. 14- The prosecution has produced a many as four eye witnesses of the occurrence. Of these, P.W.1 Pratap Singh is the eyewitness and the informant also. This witness has deposed that the accused had enmity with him with regard to some landed property. On the day of the occurrence at 8-9 P.M. the accused armed with a naked Khukhari arrived at his house with intention to kill him and his family members and stood in his courtyard and started abusing him and his family members. The accused also threatened to kill them. On his alarm, injured Shivraj Singh, Indra Singh and Mohan Singh came there and they tried to calm down the anger of the accused. At this the accused told to Shivraj Singh that since he was the companion of the informant, let him be killed first and attacked by mens of Khukari on Shivraj Singh on his head but anyhow Shivraj Singh saved himself from the Khukari blow. Again the accused gave Khukri blow on the lower part of his leg and bleeding had started from the injury. Injured Shivraj Singh fell down and became unconscious. The witness also deposed that the 7 accused left the Khukhari at the spot and fled away. He also deposed that Fate Sing, the father of the accused, who was there at the time of occurrence with burning lantern, he left the lantern at the spot as it was blood-stained and went to his house. This witness was cross-examined at length, but nothing material has come out from his cross-examination which may discredit the testimony of this witness. P.W. 2 Shivraj Singh is the injured eyewitness. He has fully corroborated the prosecution version. He has specifically stated that a the time of occurrence, witnesses Indra Singh and Jeet Singh reached at the spot, on hearing the alarms raised by complainant Pratap Singh. Jeet Singh and Pratap Singh had torches whereas Fate Singh, the father of the accused who was already there at the spot had a burning lantern. This witness has also alleged that the accused gave two Khukari blows at him, the first blow was saved by him by removing himself from the blow but the second blow of the Khukari was hit at his leg. In his cross examination suggestion was given to this witness that he had enmity with the accused. The witness admitted that dispute had arisen between him and the accused but compromise was entered into between them. In his cross-examination also nothing has come to falsify his on oath version. 15- Besides the above two eyewitnesses, the prosecution has produced independent eye witnesses P.W.4, Jeet Singh and P.W.5, Indra Singh. Both these witnesses have fully corroborated the prosecution version. They have narrated as to how the accused caused injury to Shivraj Singh. They alleged that at the time of the occurrence, they heard the noise of Pratap Singh and came at the courtyard of Pratap 8 Singh. They along with Shivraj Singh, injured tried to understand the accused but the accused told that Shivraj Singh is the companion of Pratap Singh hence he will teach lesson to him first and gave Khukari blow at the neck of Shivraj Singh, but the injured sticked at the accused and saved the blow at his neck but he accused injured the leg of Shivraj Singh by the Khukari. Due to which bleeding started from the wound and the injured fell down and the accused fled away leaving the Khukari at the spot. They also supported on the point that Fate Singh, the father of the accused also left the burning lantern at the spot, as it had blood marks. 16- Further the prosecution version is corroborated by the evidence of P.W.3, Rajendra Singh, who was the village Pradhan at the time of the incident. He has deposed that soon after the incident he had reached the scene of occurrence and took into possession the blood-stained Khukari and lantern and handed over them to the I.O. 17- Learned counsel for the appellant has argued that the incident is said to have taken place at about 9.00 P.M. in the night and it was not possible to the so called eyewitnesses to recognize the assailant of the injured Shivraj Singh in the dark hours of the night. 18- The submission raised by the learned counsel for the appellant has not force. It has come in the evidence of the witnesses that at the scene of the occurrence complainant Pratap Singh and eyewitness Jeet Singh were having torches in their hands and Fate Singh, the father for the accused, had also burning lantern in his 9 hand. Thus there was sufficient light at the place of occurrence. Further the accused/appellant is the resident of the village of complainant Pratap Singh and the witnesses had every reason to correctly identify him at the time of the occurrence. 19- The medical evidence in the case is also consistent to the evidence of the witnesses. The Medical Officer has found incised wound on the medical side for right leg, 7cm above the lower end of ribula. According to the doctor this injury could have been caused by hard object having sharp margins like Khukhari and injury No.2 might have been caused by fall on any rough surface. In this way the prosecution version about the assault on the injured is fully corroborated by the medical evidence. 20- The prosecution thus has been successful in proving its case against the accused/appellant beyond all reasonable doubt. 21- The learned counsel for the appellant has further argued that the accused/appellant had no intention to commit the murder of the injured Shivraj Singh. It was also submitted that the injured sustained superficial abrasions and one incised wound and the case does not fall within the ambit of Section 307 I.P.C. and at the most offence comes within the ambit of Section 324 I.P.C. 22- This submission of learned counsel carries force. Initially the accused had reached at the spot to quarrel with the complainant Pratap Singh and when Shivraj Singh went there to pacify the dispute, he was also beaten by the accused. The accused had no pre- 10 planned intention to cause hurt to the injured. The injuries sustained by the injured were not caused on the vital part of his body and there was no fracture. Looking to nature of injuries and the evidence on record, I come to the conclusion that the case does not fall within the ambit of Section 307 I.P.C. Certainly it comes within the category of voluntarily causing hurt by dangerous weapon, i.e. Section 324 I.P.C. 23- So far as the other offence U/Ss 504 and 506 I.P.C. are concerned, the prosecution evidence clearly shows that the accused/appellant insulted Pratap Singh complainant and his family members by hurling abuses on them and criminally intimidated by threatening them to kill. 24- Learned counsel for the appellant has also submitted that the appellant has remained in jail for a total period of 9 months and 26 days in connection with this offence. The learned counsel also filed the affidavit of one Prakash Chandra in this regard. The learned A.G.A. also verified the period of sentence undergone by the appellant from the file and found it correct. 25- It is to be noted here that the occurrence in this case is said to have taken place in the year 1982 which is more than 24 years ago, therefore, having regards to all the circumstances of the case, I think, that it is not a fit case where the appellant should be sent back to jail. 26- Thus, the conviction of the appellant U/S 307 I.P.C. is set aside and instead he is convicted U/S 324 I.P.C. His conviction U/Ss 504 and 506 I.P.C. 11 recorded by the trail Judge is also upheld, but the sentences under the aforesaid Sections are modified and the appellant is awarded the sentence of fine for Rs. 1000/- U/S 324 I.P.C., Rs. 500/- U/S 504 I.P.C. and Rs. 500/- U/S 506 I.P.C., instead of the sentence of rigorous imprisonment. In default of payment of fine the appellant shall have to undergo the sentence imposed by the trail court. 27- Accordingly the appeal is partly allowed. 28- Let the lower court record be immediately sent back to the trail court so that he steps for realization of fine may be taken by the trail Judge. (B.C. Kandpal, J.) Dated: August 4, 2006. ISB