RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.60 OF 2002 1. Sumera S/o Moti Ram 2. Brijlal @ Lalla S/o Moti Ram Both resident of Ward No.11, Hathikhana, P.S. Kichcha, District Udham Singh Nagar ……… Appellants Versus State of Uttarakhand .……… Respondent Dated: September 17, 2010 Mr. A.S. Gill, Advocate for the appellants Mr. Amit Bhatt, learned Addl. GA 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 7.3.2002 passed by Additional Sessions Judge/Ist F.T.C., Haldwani, District Nainital in Sessions Trial No.235 of 1994, whereby the learned Additional Sessions Judge convicted the appellants-accused Brijlal @ Lalla and Sumera under Sections 307 read with Section 34 of The Indian Penal Code, 1860 (hereinafter to be referred as IPC) and sentenced each of them to undergo rigorous imprisonment for a period of five years with a fine of Rs.1,000/- each and, in default of payment of fine, three months’ R.I. was further awarded to each of the appellant. However, the co-accused Moti and Pyara were acquitted by the trial court of the charges levelled against them. 2 2. Heard learned counsel for the parties and perused the entire material on record. 3. In brief, the prosecution case is that complainant Sardar Bachan Singh lodged a First Information Report at Police Station Kichcha stating therein that on 1.12.1992 at about 5 PM while his son Kuldeep was coming to his house by taking fodder, appellants-accused Sumera and Brijlal and co-accused Moti and Pyara (acquitted by the trial court), who were standing in the lane near the house of Babu Khan, attacked on the head of his son with a sharp edged weapon. On seeing so many accused persons, his son ran towards his house. While running, a number of people saw him and gathered on the spot whereupon the accused persons fled away. Blood was oozing out from the head of his son, therefore, he was taken to hospital where the doctor got him hospitalized. With the same averments, Sardar Bachan Singh lodged the FIR in the police station on the same day i.e. 1.12.1992 at 6:15 PM. On the basis of this FIR, Chik FIR of the case was prepared by Constable Clerk Pani Ram (PW3), i.e. Ext.Ka-1 and entry to this effect was also made in the G.D. The investigation of this case was entrusted to PW4 Sub Inspector Rameshwar Prasad. Later on the investigation was transferred to Sub Inspector R.P. Singh. The injured was medically on 1.12.1992 at 5:30 PM by PW5 Dr. R.P. Malik, who after the medical examination, prepared the injury report, i.e. Ext.Ka-4. X-ray of the injured was also conducted, the x-ray report is Ext.Ka-5. During the course of investigation, the Investigating Officer recorded the statement of witnesses, inspected the place of occurrence and 3 prepared the site-plan, i.e. Ext.Ka-2 and on completion of investigation, filed the charge sheet against the accused persons, i.e. Ext.Ka-3. 4. After receiving the charge sheet, learned Munsif Magistrate, Rudrapur, committed the case to the court of Sessions on 13.7.1994, after giving necessary copies to the appellants-accused as provided u/s 207 Cr.P.C. It appears from record that the case was transferred to Addl. Sessions Judge for hearing and disposal as per law. 5. On 22.8.1995, learned Ist Addl. Sessions Judge, Nainital framed the charge of offence punishable under Section 307 of IPC against the appellants-accused. The charge was read over and explained to each of the appellant-accused, who pleaded not guilty and claimed to be tried. 6. In order to prove its case, the prosecution has examined PW1 Kuldeep Singh, injured witness, PW2 Preet Pal Singh, eyewitness, PW3 Pani Ram, who prepared the Chik FIR of the case and made entries in the G.D., PW4 S.I. Rameshwar Prasad, I.O. of the case and PW5 Dr. R.P. Malik, who medically examined the injured. 7. Thereafter the statements of the appellants- accused and the co-accused 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. However, they have not produced any oral or documentary evidence in defence. 4 8. After appreciating the entire evidence on record and hearing learned counsel for the parties, learned Additional Sessions Judge, Haldwani vide his judgment and order dated 7.3.2002 convicted and sentenced the appellants-accused as mentioned above. Against the said judgment and order, the appellants- accused have preferred the present appeal. 9. Before any further discussion, it would be pertinent to mention the injury report of injured Kuldeep Singh, which is reproduced as under:- i) Incised wound on left eyebrows and forehead, measuring 5 cm x 1 cm x 0.5 cm deep, T.S. in shape, from mid of the eyebrows to lat. side of forehead, wound having another cut above this main wound size 1 cm x 0.5 cm x 0.5 cm, bleeding present around wound. Second wound is L.S. in shape and including main wound, thus the size is reverse of word T, Advise X-ray. ii) A incised wound on left side of scalp 5 cm above the left ear, size 4 cm x 0.5 cm x scalp deep, T.S. in shape and bleeding present. Advise x-ray. Opinion:- Both injuries are kept under observation, caused by sharp object and duration is fresh. 10. To prove the above-noted injury report, the prosecution has examined PW5 Dr. R.P. Malik, who has proved the injury report Ext.Ka-4. He has also proved the x-ray report Ext.Ka-5, which was prepared by Dr. P.P. Pandey. 5 11. To prove its case further, the prosecution has examined PW1 Kuldeep Singh, who has stated that the appellants-accused Sumera and Brijlal and co- accused Moti and Pyara are well-known to him. He further stated that on 1.12.1992 at about 5 PM after parking his tractor outside his house, he was going to take fodder. Accused persons met him on the way. On seeing these accused persons, he ran towards his house but they surrounded him near the house of Babu Khan. Appellant-accused Brijlal caused injuries to him by Kante and Sumera caused injury to him by Patal as a result of which he fell down. Meanwhile, Preetpal and others came on the spot. He further stated that there is previous enmity between the accused persons and him. Thereafter, his family took him to hospital, where he got admitted and his medical examination was conducted. This witness was cross- examined at length by the defence counsel but nothing has come out from his evidence which may create any doubt in his evidence. The evidence of this witness is reliable, believable and inspires confidence. 12. PW2 Preetpal Singh has corroborated the statement of PW1 Kuldeep Singh. 13. PW3 Pani Ram has proved the Chik FIR Ext.Ka-1 of the case, prepared by him. He further stated that entry in the G.D. was also made by him. 14. PW4 S.I. Rameshwar Prasad was posted as Sub Inspector at P.S. Kichcha on 1.12.1992 and, on that day, investigation of the case was entrusted to him. During the course of investigation, he recorded the statement of witnesses and prepared the site-plan 6 Ext.Ka-2 of the place of occurrence. Thereafter he was transferred from that place and then the investigation was entrusted to S.I. R.P. Singh, who on completion of investigation, filed the charge sheet Ext.Ka-3 against the accused persons. 15. Thereafter the statements of the appellants- accused and the co-accused 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. However, they have not produced any oral or documentary evidence in defence. 16. Learned counsel for the appellants-accused argued that the prosecution has not proved its case beyond reasonable doubt against the appellants- accused. I do not find any force in the argument put forth by learned counsel for the appellants-accused for the reason that PW1 Kuldeep Singh, injured witness of the case, has specifically stated that on the date of incident i.e. on 1.12.1992 at about 5 PM, after parking his tractor outside his house, he was going to take fodder. Accused persons met him on the way and on seeing these persons he ran towards his house but they surrounded him near the house of Babu Khan. Appellant-accused Brijlal caused injuries to him by Kante and Sumera caused injury to him by Patal as a result of which he fell down. Meanwhile, Preetpal and others came on the spot. He further stated there is previous enmity between the accused persons and him. Thereafter, his family took him to hospital, where he got admitted and his medical examination was conducted. The evidence of this witness is reliable, believable and natural and inspires implicit confidence 7 and the same also gets full corroboration from the oral evidence of P.W.2 Preet Pal Singh, who have fully supported the prosecution case in his statement. Apart from above, the evidence of P.W.1 Kuldeep Singh further gets full corroboration from the injury report Ex.Ka-4 and x-ray report Ext.Ka-5 as well as from the medical evidence of P.W.5 Dr. R.P. Malik, who has opined that the injuries were fresh and were caused by sharp object. All these facts and circumstances give full support and, therefore, wholly corroborate the statement of injured Kuldeep Singh. 17. Learned counsel for the appellants-accused further argued that on the basis of the evidence discussed above, no case u/s 307 IPC is made out against the appellants-accused and at the most, only the offence u/s 324 IPC is made out. I find substance in the argument put forth by counsel for the appellants-accused due to the reason that the injuries shown in the injury report of injured Kuldeep Singh are simple in nature and no bony lasion was seen in the x- ray of skull of the injured. Further, the injuries were not caused by the appellants-accused with the intention to kill the injured Kuldeep singh. Thus, from the evidence of medical officer PW5 Dr. R.P. Malik and also from the injury report and x-ray report, it is proved that the injuries caused to the injured person were not dangerous to life as they were not grievous in nature. Therefore, as per the above-said discussion, the present case falls under Section 324 IPC and not under Section 307 IPC as has been held by the trial court. 8 18. Thus, for the reasons as recorded above, the appeal is partly allowed. The judgment and order dated 7.3.2002 passed by Additional Sessions Judge/Ist FTC, Haldwani, District Nainital in Sessions Trial No.235 of 1994, convicting the accused-appellants u/s 307 r/w 34 of IPC and sentencing them to five years’ R.I. with a fine of Rs.1,000/- each, is hereby set aside. However, they are found guilty of the offence punishable u/s 324 of IPC and each of them is sentenced to one year’s R.I. with a fine of Rs.500/- each. In default of payment of fine, the appellants-accused shall further undergo one month’s R.I. Appellants-accused Sumera and Brijlal @ Lalla are on bail. Their bail is cancelled. Let them be taken into custody forthwith in order to serve out the sentence. However, it is made clear that the period of sentence already served out by them during investigation, trial or during the pendency of this appeal shall be adjusted after verifying from the records. 19. A copy of this judgment along with the record of the trial court be sent back to the court concerned for compliance forthwith. (Dharam Veer, J.) 17.9.2010 RG