IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Chapter VIII, Rule 32(2)(b) Description of the Case. Date of decision: 05.03.2008 Criminal Appeal No. 191 of 2007 ALONGWITH Criminal Appeal No. 213 of 2007 A.F.R. (Approved for Reporting) Not approved for Reporting (Initial of Judge) Date: 05.03.2008 Note: Bench Reader will attach this at the top of first page of the judgment when it is put up before the Judge for signature. Judgment Reserved IN THE HIGH COURT OF UTTARAKHAND, AT NAINITAL Criminal Appeal No. 191 of 2007 1. Abil @ Adil S/o Shri Nawabuddin 2. Usman, S/o Shri Mahndi Hasan Both R/o Village Tellywala P.S. Doiwala, District Dehradun. ………Appellants. Versus State of Uttarakhand ……….Respondent. ALONGWITH Criminal Appeal No. 213 of 2007 1. Imdad Hasan, S/o Kamruddin 2. Zeesan Ali, S/o Kamruddin Both R/o Village Teliwala P.S. Doiwala, District Dehradun. ………Appellants Versus State of Uttaranchal ……….Respondent. Sri S.K. Agarwal, Sr. Advocate, assisted by Shri S.S. Bhandari, Shri Sandeep Tandon and Shri Anurag Bisaria, learned counsel for the appellants. Shri Amit Bhatt, learned A.G.A. for the State. Coram: Hon’ble Prafulla C. Pant, J. Hon’ble Dharam Veer, J. Per:- Hon’ble Prafulla C. Pant, J. These two appeals, preferred under Section 374 (2) of Code of Criminal Procedure, 1973 (herein after referred as Cr.P.C.), are directed against the same judgment and order dated 07.05.2007, passed by learned Additional and Sessions Judge IInd, Dehradun, in Sessions Trial No. 48 of 2004, whereby accused/appellants Abil alias Adil, Usman, Zeeshan and Imdad, are convicted under Section 302 read with Section 34 of Indian Penal Code, 1860 (herein after referred as I.P.C.) and each one of the convicts/appellants is sentenced to undergo imprisonment for life and to pay fine of Rs. 10,000/-. In default in payment of fine, the defaulter is directed to undergo further two years rigorous imprisonment. It is also mentioned in the impugned judgment that 1/4th of the fine shall be paid as compensation to the widow of deceased-Maksood. 2. Heard learned counsel for the parties and perused the trial court’s record. 3. Prosecution story in brief is that on 12.12.2003, at about 20:30 hours, Imran Khan (P.W. 3) lodged a First Information Report (Ext. A-3) with Police Station Doiwala, District Dehradun, with the allegations that his fatjer Maksood Hasan (deceased) had a quarrel earlier with his neightbour Kamruddin over a disputed pathway. The police challaned informant’s father Maksood (deceased) in that matter. On 12.12.2003, at about 6:00 p.m., when he (Maksood) was returning to his house at Teliwala, after being released on bail near Abil’s (accused/appellant’s) shop, accused/appellants Imdad Hasan, Zeeshan Ali, both sons of Kamruddin, and Usman, son of Mehndi Hasan, on exhortation of Abil, attacked and assaulted Maksood with a KHUKRI (a sharp edged weapon) and DANDAS (rods). Accused/appellant Imdad is said to have been armed with KHUKRI, while Zeeshan, Usman and Abil were armed with DANDAS. Maksood suffered injuries on his head and other parts of body and fell down. Sayeed Ahmad (P.W. 1) and Yakoob (P.W. 2) came to the rescue of informant’s father-Maksood. He was taken thereafter by his relatives to Government Hospital, Doiwala. On the basis of Ext. A-3, lodged by Imran Khan (P.W. 3), police registered a case crime number 156 of 2003, relating to offences punishable initially under Section 307 I.P.C. against all the four accused. The investigation was started by Sub-Inspector Ved Pal Tomar (P.W. 6), who interrogated the informant and other witnesses. Accused/appellant Abil was arrested by him. He also prepared site plan (Ext. A-8) after inspection of the spot. Blood stained kurta was also taken by him and he prepared memorandum (Ext. A-4). On 15.12.2003, he recorded the statement of injured Maksood Hasan (who later succumbed to the injuries), under Section 161 Cr.P.C. Copy of said statement is Ext. A-9. Meanwhile, on 12.12.2003, Dr. A.K. De (P.W. 4), a Medical Officer of Community Health Centre, Doiwala, recorded the injuries found on the person of Maksood and prepared injury report (Ext. A- 5). Thereafter on 13.12.2003, Dr. J.P. Uniyal (P.W. 5) an Orthopaedic Surgeon of Community Health Centre, Doiwala took the X-ray of the skull of Maksood and prepared his report (Ext. A-7). The crime which was initially registered as offence punishable under Section 307 I.P.C. against accused/appellants, was altered to offence punishable under Section 324 I.P.C. However, on 17.12.2003, condition of Maksood, started worsening. He was referred to Combined Medical Institute (C.M.I.), Dehradun. As such, the case was once again altered to the offence punishable under Section 307 I.P.C. and when injured succumbed to the injuries, thereafter finally to offence punishable under Section 302 I.P.C., whereafter the investigation was taken up from Ved Pal Tomar by Vijay Singh Goswami (P.W. 8), Station House Officer of P.S. Doiwala. The dead body was taken into possession by the police and who got prepared inquest report (Ext. A-1). The investigating officer also got prepared letter to Chief Medical Officer (Ext. A-10), police form No. 13 (Ext. A-11), sketch of the dead body (Ext. a-12), sample seal (Ext. A-14). Thereafter, Dr. K.B. Joshi (P.W. 7) conducted the post mortem examination on the dead body of the deceased on 18.12.2003, and prepared autopsy report (Ext. A-12). After completion of the investigation, Vijay Singh Goswami, Investigating Officer, submitted charge sheet against all the four accused, namely- Imdad Hasan Zeeshan, Usman and Abil for their trial in respect of offence punishable under Section 302 read with Section 34 I.P.C. 4. The Magistrate, on receipt of the charge sheet, after giving necessary copies to the accused, as required under Section 207 Cr.P.C., committed case to the court of Sessions, for trial. Trial court after hearing the parties, on 12.05.2004, framed charge of offences punishable under Section 302 read with Section 34 I.P.C. against all the four accused, who pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1 Sayeed Ahmad, an eye-witness and scribe of the report, P.W. 2 Yakoob, another eye- witness, P.W. 3 Imran Khan, son of the deceased and informant, P.W. 4 Dr. A.K. De, who recorded injuries of Maksood Ahmad (deceased), P.W. 5 Dr. J.P. Uniyal, Orthopaedic Surgeon, P.W. 6 Sub-Inspector Ved Pal Tomar, who initially investigated the crime, P.W. 7 Dr. K.B. Joshi, who conducted post mortem examination on the dead body of the deceased and P.W. 8, Sub- Inspector Vijay Singh Goswami, who completed the investigation. The oral and documentary evidence were put to the accused/appellants, to which they alleged to be false and pleaded that they have been falsely implicated due to enmity. In defence, D.W. 1 Iqbal Hasan and D.W. 2 Rayees Ahmad, were got examined on behalf of the accused. They stated that Maksood (deceased) was a quarrelsome person who had enmity with other people also. After hearing the parties, the trial court found the accused/appellants guilty of offence punishable under Section 302 read with Section 34 I.P.C., vide judgment and order dated 05.05.2007. And after hearing on sentence on 07.05.2007, each one of them is sentenced to undergo imprisonment for life and directed to pay fine of Rs. 10,000/-. In default of payment of fine, the defaulter was directed to undergo further rigorous imprisonment for a period of two years. Aggrieved by said judgment and order dated 05.05.2007/07.05/2007, criminal appeal No. 191 of 2007, is preferred by convicts Abil alias Adil and Usman, and criminal appeal No. 213 of 2007, is filed by convicts Imdad Hasan and Zeeshan Ali. 5. Before further discussions, it is pertinent to mention here the injuries found on the person of Maksood (deceased) by P.W. 4 Dr. A.K. De, who recorded the same on 12.12.2003, at about 7:00 p.m. at the time of his admission in Community Health Centre, Doiwala, and prepared injury report (Ext. A-5). The same are being reproduced below: ‘1. Incised wound on left side of head about 9 cm above the left ear pinna. Size about 4cm x .5cm x scalp deep. Fresh blood is present. 2. Incised wound on left cheek about 1.5cm below lateral angle of left eye. 3. Abrasion of left nostrial. Size about 2cm x 1cm. Fresh blood is present. 4. Incised wound on chin. Size 3.5cm x .5cm x muscle deep. Fresh blood is present. 5. Abraded contusion with traumatic swelling on dorsal aspect of left forearm about 10cm above wrist joint. Size about 7cm x 6cm. Fresh blood is present. 6. Abrasion on left knee. Size about 3cm x 1.5 cm. Fresh blood is present.’ In the opinion of the Medical Officer, all the injuries were fresh in duration. He further opined that injuries No. 3, 5 and 6, were caused by hard and blunt object, and injuries No. 1,2 and 4, were caused by sharp edged weapon. The supplementary report (Ext. A-6) shows that injury No. 1 and injury No. 5 in respect of which X-ray was advised were also found simple in nature. 6. Now, we think it proper to quote the ante mortem injuries, recorded by Dr. K.B. Joshi (P.W. 7), who conducted autopsy on the dead body of Maksood on 18.12.2003, at about 1:30 p.m. and prepared autopsy report (Ext. A-12). The same are being reproduced below:- ‘1. Old stitched wound 1 ½ cm long (two stitches) on left side face 1 ½ cm below from lateral angle of left eye. 2. Old stitched wound of 2 cm length over chin with two stitches. 3. Old stitched wound of 4cm in length with four stitches with dotted blood. Surrounding area is swollen in an area of 5cm x 5cm over scalp of skull, left side 10 cm above from left ear. 4. Old lacerated wound of 1 X ½ cm size. Clotted blood present on upper boarder of left ear. 5. Old abrasion of ½ X ½ cm on bridge of nose. 6. Old abrasion of ½ X ½ cm on left side at surface of nose. 7. Old abrasion of 2 x 1cm area on left side face, 1 cm lateral to left angle of left eye. 8. Old multiple abrasion of varying size on medial surface of left forearm. 9. Old abrasion of 2 X ½ cm on front of left knee. 10. Old contusion of 13 X 6cm on front of sin of tibia 12 cm above from left ankle joint. 11. Contusion of 5x4cm on right side of abdomen (left surface), 15cm above right elioc crest. 12. Old contusion of 5 X 4cm on right side upper arm (lateral surface) 4cm below from top of right shoulder.’ In the opinion of P.W. 7, Dr. K.B. Joshi, cause of death was ante mortem head injury. 7. P.W. 1 Sayeed Ahmad, an eye witness, has stated on oath that on 12.12.2003, at about 6:00 p.m. when Maksood was returning on his way to home after getting released on bail from court, accused Imdad armed with KHUKRI (sharp edged weapon), accused Zeeshan, Usman and Abil, all of the three, armed with Dandas (rods) assaulted Maksood (deceased). The witness has further stated that other accused gave blows with Dandas. He has further stated that on hearing shouts, some 5-7 persons gathered at the spot. On this, accused ran away leaving Maksood injured. P.W. 1 Sayeed Ahmad has further stated that he informed the incident to Maksood’s son Imran (P.W. 3) P.W. 1 Sayeed Ahmad has further stated that he scribed the report (Ext. A-2) for Imran. This witness is also witness of inquest report, which was prepared on 18.12.2003. He has proved the inquest report (Ext. A-1). 8. P.W. 2 Yakoob, another eye witness of the incident has corroborated the story narrated by Sayeed that on 12.12.2003, at about 6:00 p.m., near shop of Abil, when he saw Maksood coming, he (Abil) exhorted accused Imdad, who has armed with KHUKRI and other accused Zeeshan and Usman were armed with Dandas to kill Maksood. This witness has further stated that when Maksood got injured in the incident, he fell down. P.W. 2 Yakoob, has further stated that after incident, Imran reached at the spot and he along with some others, took Maksood to Doiwala hospital for treatment. P.W. 2 has stated that there were some 11-12 injuries on the person of Maksood. As to the motive of crime, this witness has stated that Maksood and the accused were in litigation over a disputed pathway. This witness is also witness of recovery of rods on 19.12.2003, used in the crime. Memorandum of which is Ext. A-5 on the record. He is also witness of recovery of blood stained clothes, memorandum of which is Ext. A-4 on the record. 9. P.W. 3 Imran is informant and son of the deceased, who has stated that he received the information about the incident on 12.12.2003 through Sayeed (P.W. 1). He further says that he took his father (Maksood) with the help of others to hospital in Doiwala. This witness has also stated that there were 10-12 injuries on the body of his father. The witness has proved the First Information Report (Ext. A-3). 10. From the eye-witness account given by P.W. 1 Sayeed Ahmad and P.W. 2 Yakoob, corroborated by medical reports, it is established on record that on 12.12.2003, accused/appellant Imdad armed with Khukri, accused/appellants Abil, Zeeshan and Usman, armed with rods, attacked Maksood with common intention due to enmity with the deceased over a pathway. The question before this Court is now whether the act on the part of the accused/appellants, constitutes culpable homicide amounting to murder or the one not amounting to murder. As per the statement of P.W. 3 Imran, injured Maksood was admitted in Doiwala hospital, on 12.12.2003, after the incident. However, he died after five days on 18.12.2003, in C.M.I. hospital, Dehradun, where he appears to have been referred after his condition deteriorated. From the medical report, recorded by Dr. A.K. De (P.W. 4) and supplementary report, it is clear that all the injuries found on the person of the deceased were simple in nature. As such, it cannot be said that the accused acted in a cruel manner. It is also not established on record that there is premeditation on the part of accused/appellants to commit the offence but certainly they had common intention in causing injuries on the person of Maksood which were likely to cause his death. And their prior meeting of minds can be said to be at the spot itself after accused/appellant Abil exhorted the other three. In view of the provisions of Section 304 Part I read with Section 300 of I.P.C., it is settled principle of law that if the act is done by the accused with a knowledge that it is likely to cause death but without any intention to cause death or such bodily injury as is likely to cause, such act is covered under Part-I of Section 304 I.P.C. In our opinion in the facts and circumstances proved by the prosecution, offence committed by accused/appellants Abil alias Adil, Zeeshan, Usman and Imdad is punishable under Section 304 Part I of I.P.C. and not under Section 302 I.P.C. 11. Shri S.K. Agarwal, Senior Advocate, on behalf of the appellants, argued that there is serious discrepancy between the number of injuries mentioned in the medical report (Ext. A-1) and the ante mortem injuries, recorded in the post mortem report (Ext. A-2), and on its basis it is contended that the incident has not taken place in the manner the prosecution has asserted. No doubt there is difference in number of injuries found at the time of medical report (Ext. A-5) is prepared by Dr. A.K. De (P.W. 4) and ante mortem injuries recorded in the autopsy report (Ext. A-12), prepared by Dr. K.B. Joshi (P.W. 7). But as to the number of injuries, P.W. 2 Yakub, eye-witness, has stated that in the incident Maksood suffered 11-12 injuries. P.W. 3 Imran Khan, son of the deceased, who took his father Maksood to the hospital immediately after the incident has also stated that there were 10-12 injuries on the person of the deceased. Defence in the circumstances, should have put a question to P.W. 4 Dr. A.K. De, to explain the discrepancy between the report prepared by him and the Medical Officer, who conducted post mortem examination report but no such question has been put to Dr. A.K. De (P.W. 4), nor any question is asked in this regard to P.W. 7 Dr. K.B. Joshi, who conducted autopsy on the dead body. In this connection it is relevant to mention here that number of injuries which are found in excess in the post mortem examination report (Ext. A-12), to the number of injuries mentioned in the medical report (Ext. A-5), includes three stitched wounds, which appear to be because of the medical treatment (minor surgery) given to the patient during the period of five days when he remained in hospital before being referred to C.M.I. Dehradun after his condition deteriorated. 12. Next contention advanced on behalf of the appellants is that Ved Pal Tomar (P.W. 6), who investigated the crime initially, interrogated Maksood (deceased) before his death when he was in Community Health Centre, Doiwala (copy of said statement recorded under Section 161 Cr.P.C. is Ext. A-9) and in said statement there is no mention of Imdad being armed with Khukri or deceased being attacked by Khukri (sharp edged weapon). Non mentioning of said fact in the statement of the deceased gets explained on the record by what has been stated by P.W. 2 Yakub, an eye witness in his cross examination in reply to a question put by the defence that after getting injured with lathi blows, Maksood fell down and became unconscious. Injuries caused by accused/appellant Imdad with Khukri on the head of the deceased are established from the statement of eye witnesses namely P.W. 1 Sayeed Ahmad and P.W. 2 Yakub and corroborated by medical reports, quoted above. 14. It is submitted by learned counsel for the appellants that P.W. 7 Dr. K.B. Joshi, who conducted the autopsy on the dead body, has stated that there was large haematoma in the brain of the deceased and it is further stated by him in the cross examination that haematoma gets formed on account of some disease also. We do not find much force in the submission of learned counsel for the appellants as said statement of Medical Officer, does not create reasonable doubt in the prosecution story for the reason that the same Medical Officer (P.W. 7) Dr. K.B. Joshi, in his autopsy report (Ext. A-12) has clearly mentioned that cause of death of the deceased was head injury due to ante mortem injury. Lastly it is pointed out that P.W. 7 Dr. K.B. Joshi has stated in cross examination that death of the deceased has not taken place in ‘Hospital’ else it would have been mentioned in papers. This point is clarified by the learned Government Counsel by saying that Dr. Joshi (P.W. 7) was referring to Government Hospital while death has occurred in C.M.I., a private hospital. 15. For the reasons as discussed above, we are of the view that what has been proved on record as against accused/appellants is offence punishable under Section 304 Part I and not one punishable under Section 302 I.P.C. Accordingly, appeals deserve to be allowed partly. Both the appeals are allowed partly. Impugned judgment and order dated 05.05.2007/07.05.2007, passed by learned Additional Sessions Judge IInd, Dehradun, in Sessions Trial No. 48 of 2004, is set aside to the extent the accused/appellants are convicted under Section 302/34 I.P.C. and sentenced under said section. Instead the accused/appellants Imdad Hasan, Zeeshan Ali, Usman and Abil, are convicted under Section 304 Part I, read with Section 34 I.P.C. and after considering the facts and circumstances of the case, each one of them is sentenced to rigorous imprisonment for a period of ten years only. The accused/appellants are in jail. Let the copy of this judgment be sent to Superintendent of Jail concerned and the lower court record be sent to the court concerned. (Dharam Veer, J.) (Prafulla C. Pant, J.) Dt: 05.03.2008 Sweta