RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.464 OF 2001 (Old No.233/1995) 1. Yashwant Singh 2. Pan Singh 3. Deep Singh 4. Man Singh ……… Appellants Versus The State ……… Respondent Dated: March 29, 2010 Sri R.S. Sammal & Sri Lalit Sharma, Advs. for the appellant nos.1 to 3 Sri Vikas Pandey, Adv. for the appellant no.4 Sri M.A. Khan, learned brief holder for the State HON. DHARAM VEER, J. This criminal appeal, preferred under section 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 9.2.1995 passed by the Special Judge/Addl. Sessions Judge, Nainital in Sessions Trial No.97 of 1990, State Vs. Yashwant Singh & others, whereby the learned Special Judge/Addl. Sessions Judge has convicted the appellants/accused – Yashwant Singh, Pan Singh, Deep Singh and Man Singh u/s 307/34 of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced each of them to five years’ rigorous imprisonment with fine of Rs.1,000/- each, and in default, each of the accused to undergo further three months’ simple imprisonment. 2 2. I have heard learned counsel for the parties and perused the entire material available on record. 3. In brief, the prosecution case is that complainant Ramesh Chandra Bhatt (P.W.1) lodged an FIR stating therein that on 3.7.1989, his nephew Naveen Chand was coming to him. The appellants- accused Yashwant Singh, Man Singh, Deep Singh and Pan Singh were also coming on foot from the Block. Thereafter, the appellants-accused started beating Naveen Chand on which Naveen Chand came to the complainant’s house while weeping. At that time, complainant’s brother Kewlanand along with Deep Chand and Bhairav Dutt were sitting at home. The brother of complainant, Kewlanand, ran towards the appellants-accused to sort out the matter but the appellants-accused got Kewlanand fell down and said that he poses a lot, let us kill him. The appellants- accused Yashwant and Man Singh caught hands and legs of Kewlanand and the appellants-accused Deepu and Pan Singh, who were armed with knives, caused injuries to Kewlanand with intention to kill him. The incident was witnessed by the complainant Ramesh Chand Bhatt, Bhairav Dutt and Naveen Chand and other persons. The incident had occurred at about 9 PM. The complainant took his unconscious brother to the hospital and thereafter lodged the report. With the same averments, the FIR Ex.Ka-1 was lodged by P.W.1 Ramesh Chand Bhatt on 3.7.1989 at 10:10 PM at P.S. Haldwani. On the basis of that FIR, Constable Clerk Jagdish Chand Kandpal prepared the Chik FIR of the case, i.e.Ex.Ka-5. Entry was also made by him in the 3 G.D., carbon copy thereof is Ex.Ka-6. The investigation of this case was entrusted to P.W.6 Vishram Singh. Injured Kewlanand Bhatt was medically been examined on 3.7.1989 at 9:25 PM by PW4 Dr. J.S. Pangti and report Ex.Ka-2 was prepared. X-ray report Ex.Ka-3 and supplementary medical report Ex.Ka-4 was also prepared by the same medical officer of the injured. The I.O. took in his possession the bloodstained undershirt of the injured Kewlanand and prepared Fard, i.e. Ex.Ka-7. The I.O. also prepared a Fard for taking the plain clay and bloodstained clay from the place of occurrence, i.e. Ex.Ka-9. Ex.Ka-10 is the Fard prepared by the I.O. for receiving the Torch from the witnesses, i.e. Ex.Ka-10. During the course of investigation the I.O. inspected the place of occurrence and prepared the site plan, i.e. Ex.Ka-8. The I.O. during investigation recorded the statements of witnesses and after completing the investigation, submitted the charge sheet against the appellants/ accused in the court, i.e. Ex.Ka-11. 4. After receiving the charge sheet, learned CJM, Nainital committed the case to the court of Sessions on 6.04.1990 after giving necessary copies to the appellants/accused as provided under Section 207 Cr.P.C. 5. On 14.6.1990, learned III Addl. Sessions Judge, Nainital has framed the charge against the appellants/accused Yashwant Singh, Man Singh, Deep Singh @ Diwan Singh and Pan Singh u/s 307/34 IPC. The charge was read over and explained to 4 appellants/accused, who pleaded not guilty and claimed to be tried. 6. To prove its case, the prosecution has examined P.W.1 Ramesh Chand, complainant and eyewitness, P.W.2 Kewlanand, injured witness, P.W.3 Bhairav Dutt Bhatt, eyewitness, P.W.4 Dr. J.S. Pangti, who medically examined the injured, P.W.5 Naveen Chandra Bhatt, eyewitness and P.W.6 S.I. Vishram Singh, I.O. of the case. 7. After that the statement of the appellants/ accused was recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to each of them in question form, who denied the allegations made against them and stated that they have been falsely implicated. No oral or documentary evidence was produced in defence. 8. After hearing learned counsel for the parties and appreciating the entire material available on record, the learned Special Judge/Addl. Sessions Judge, Nainital vide judgment and order dated 9.2.1995 convicted and sentenced the appellants/accused as above discussed. Feeling aggrieved by the aforesaid judgment and order, the accused/appellants have preferred the present appeal. 9. Before further discussion, it is pertinent to mention the injuries recorded in the injury report (Ex.Ka-2) of the injured Kewlanand by P.W.4 Dr. J.S. Pangti, which are as follows: - 5 1. “Incised wound 2 cm x 1½ x 2 cm deep over right shoulder joint, 6 cm above top of shoulder joint, sharp edged, bleeding from wound present. 2. Incised wound 1 cm x 1 cm x over left side of chest, depth could not be ascertained, crepitation present, advised x-ray chest, bleeding from wound present, sharp edged. 3. Incised wound 1 cm x 1 cm x over left side of chest 4 cm below injury no.2, depth could not ascertain, creptation present, advised x-ray chest, bleeding from wound present, sharp edge. 4. Incised wound 1 cm x 1 cm over left side of axillar region, 5½ cm below injury no.3, depth could not ascertained, advised x-ray chest. 5. Incised wound 2 cm x ½ cm over left arm trauma aspect 15 cm above elbow joint, sharp edged ½ cm in deep, bleeding from wound present. 6. Incised wound 1 cm x ½ cm x 1½ cm x muscle deep, sharp edge, bleeding from wound. Opinion-Injury nos.1,5,6 are simple caused by sharp weapon, no.2,3,4 kept under observation, advised x- ray chest, caused by sharp weapon. 10. On the basis of the x-ray report (Ex.Ka-3), P.W.4 Dr. J.S. Pangti prepared the supplementary report (Ex.Ka-4) of the injured, which is as under: - X-ray Chest DA View shows- Surgical EMPHYSEMA around left shoulder joint size seen. Hence injury nos.2,3 and 4 are grievous in nature” 11. To prove the above-said reports, the prosecution has examined P.W.4 Dr. J.S. Pangti who has proved the injury report Ex.Ka-2, x-ray report 6 Ex.Ka-3 and supplementary report Ex.Ka-4, prepared by him. He has further stated that the injuries no.2,3 and 4 of injured were grievous in nature and the injuries could have possibly be caused on 3.7.1989 at about 9 PM by knives. 12. To further prove its case the prosecution has examined PW2 Kewlanand, injured witness, who has stated that on 3.7.1989 in the night, he was sitting with his brother Ramesh Chandra along with Bhairav Dutt Bhatt and Deep Chandra Bhatt. His son Naveen reached there and informed that the appellants- accused Yashwant Singh, Maan Singh, Deepu and Pan Singh had beaten him, who were also identified by him in the court. When he went to sort out the matter, then at about a distance of about 100 meters in front of hospital, the appellants-accused met him. He enquired from the appellants-accused about the beating of his son on which the appellants-accused Yashwant Singh and Maan Singh caught his legs and made him fallen down. The appellants-accused Deepu and Pan Singh gave blow of knives to him due to which he sustained injuries and he was also medically been examined. This witness was cross-examined at length by the defence counsel but nothing has come out in his statement which may create any doubt in his statement. The statement of this witness is reliable and believable and inspires confidence. 13. Statement of P.W.2 Kewlanand also gets corroborated from the statements of PW1 Ramesh Chand, P.W.3 Bhairav Dutt Bhatt and P.W.5 Naveen Chandra Bhatt. 7 14. P.W.6 SI Vishram Singh stated that investigation was entrusted to him. Constable Clerk Jagdish Chand Kandpal prepared Chik FIR of this case, i.e. Ex.Ka-5. He also made entry in G.D., copy thereof is Ex.Ka-6. He recovered the bloodstained clothes of injured and prepared Fard, i.e. Ex.Ka-7. He prepared the site plan of place of occurrence, i.e. Ex.Ka-8. He also took the plain and bloodstained clay from the place of occurrence and prepared Fard, i.e. Ex.Ka-9. He also recovered the Torch from the witnesses and prepared Fard, i.e. Ex.Ka-10. During investigation, he recorded the statements of witnesses and on completing the investigation, he filed the charge sheet, i.e. Ex.Ka-11. 15. After that the statement of the appellants/ accused was recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to each of them in question form, who denied the allegations made against them and stated that they have been falsely implicated. No oral or documentary evidence was produced in defence. 16. Learned counsel for the appellants-accused argued that the prosecution could not prove its case against the appellants-accused beyond reasonable doubt. I do not find any force in this argument for the reason that P.W.2 Kewalanand Bhatt, who is the injured witness of the case, has stated that on 3.7.1989 at about 9 PM in the night, he was sitting with his brother Ramesh Chandra along with Bhairav Dutt Bhatt and Deep Chandra Bhatt. His son Naveen reached there and informed that the appellants- accused Yashwant Singh, Maan Singh, Deepu and Pan 8 Singh had beaten him, who were also identified by him in the court. When he went to sort out the matter, then at about a distance of about 100 meters in front of hospital, the appellants-accused met him. He enquired from the appellants-accused about the beating of his son on which the appellants-accused Yashwant Singh and Maan Singh caught his legs and made him fallen down. The appellants-accused Deepu and Pan Singh caused injuries to him with the knives due to which he sustained injuries and he was also medically been examined. The statement of this witness is reliable and believable and inspires confidence and the same gets corroborated from the statements of PW1 Ramesh Chand, P.W.3 Bhairav Dutt Bhatt and P.W.5 Naveen Chandra Bhatt, who are also the eyewitnesses of the above-said incident. It has also come in the evidence that at the time of incident, electric light was there. In the oral testimony of P.W.5 Naveen Chandra Bhatt also, it has specifically come that the appellants- accused Maan Singh and Yashwant Singh caught his father Kewlanand Bhatt while the appellants-accused Deep Singh and Pan Singh caused injuries with knives to Kewlanand Bhatt with the intention to kill him. Besides the above, the oral evidence of injured also gets corroboration from the medical evidence. P.W.4 Dr. J.C. Pangti, who medically examined the injured, has specifically stated in his evidence that the injuries no.2,3 and 4 were grievous in nature and the injuries on the person of injured could have possibly been caused on 3.7.1989 at about 9 PM by the knives. The injuries are on the vital part i.e. on the chest and even as many as six incised 9 wounds were found and they were also dangerous to life. As such, the medical evidence also fully corroborates the oral version. For the above-said discussion, it is proved that the appellants-accused committed the above-said offence with such intention or knowledge, and under such circumstances, if they by that act caused death, they would be guilty or murder and, therefore, the offence punishable u/s 307/34 IPC is fully made out against the appellants-accused beyond reasonable doubt and the trial court has rightly convicted the appellants-accused u/s 307/34 IPC. 17. A compounding application No.82/2010 has been filed on behalf of the appellants and injured – Kewlanand and it is stated that the dispute between the parties have been settled down and all of them are ready for compromise. A prayer was also made by the learned counsel for the parties to dispose of the appeal on the basis of compromise between the parties. Section 320(9) of the Cr.P.C. expressly states that no offence shall be compounded except as provided by this section. The offence punishable under Section 307 IPC is not a compoundable one, therefore, compromise cannot be accepted. But at the same time, it is well settled that the effect of compromise can be taken into consideration. Therefore, looking to the precarious facts and circumstances of the case as well as considering the fact that the offence is of the year 1989 i.e. about 21 years back and the fact that the appellants-accused Yashwant Singh, Deep Singh and Man Singh are now aged about 38-40 years of age while the appellant-accused Pan Singh is aged about 54 10 years and also considering the fact that the parties have also entered into compromise, I am of the view that the interest of justice would be met if the conviction of the appellants-accused u/s 307/34 IPC is maintained however, the sentence awarded to each of the appellant-accused may be reduced to the sentence of two years’ R.I. instead of five years’ R.I. as awarded by the court below. 18. In view of the foregoing discussion of the case, the appeal is partly allowed. The judgment and order dated 9.2.1995 passed by the Special Judge/ Additional Sessions Judge, Nainital in convicting each of the appellant-accused u/s 307/34 IPC is made affirmed. However, the order passed by the court below for awarding sentence of five years’ R.I. to each of the appellant-accused is modified to the extent that each of the appellant-accused shall undergo two years’ R.I. with fine of Rs.1,000/- each and in default of fine, each of the accused to undergo S.I. for three months. 19. The appellants-accused are on bail. Let them be taken into custody forthwith for compliance of order. However, it is provided that the period already served out by each of the appellant-accused during investigation, trial or appeal shall be adjusted after verifying the records. 20. Lower court record let be sent back. (Dharam Veer, J.) March 29, 2010 Rajeev Dang 11