RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT HARIDWAR CRIMINAL APPEAL No. 1132 of 2001 (Old No. 965/1997) Rajk Kumar @ Pappu .…. Appellant/Accused Versus State …………… Respondent July 5, 2010 Mr. PS Bisht, Amicus Curiae for the appellant. Mr. Prabhakar Joshi, Brief Holder for the State/respondent. HON’BLE DHARAM VEER, J. This appeal, preferred by the appellant under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.), is directed against the common judgment and order dated 2.4.1997 passed by the 2nd Additional Sessions Judge, Haridwar in Sessions Trial No. 230 of 1996, State v. Raj Kumar @ Pappu under Section 307 of Indian Penal Code, 1860 (for short, IPC) and Sessions Trial No. 229/1996, State v. Raj Kumar @ Pappu, under Section 25/4 of The Arms Act, 1959 (for short, the Act) whereby the accused appellant Raj Kumar @ Pappu has been convicted under Section 307 IPC as well as under Section 25/4 of the Act and sentenced to undergo R.I. for seven years under Section 307 IPC and simple imprisonment for one month under Section 25/4 of the Act. Both the sentences have been directed to run concurrently. 2. In brief, the prosecution case is that PW1 Brijmohan lodged an FIR Ex. Ka-1 with PS Kotwali Haridwar on 30.3.1996 at 9.40 pm with the averments that today at 9 pm his father Ganga Prasad (PW2) was going to purchase bidi. Near the shop of Daulat Tea Stall, the appellant accused in intoxicated condition was hurling abuses on two labourers. When the father of the complainant asked the accused appellant not to do so, then he assaulted him with a knife with intention to kill him. In this incident, his father Ganga Prasad received grievous injuries in his chest, back and buttock. On hearing the noise of his father, the complainant with the help of Dheeraj, Sanjay and Ashok caught hold the accused appellant along with the said knife. Ganga Prasad was taken to the hospital in serious condition by Dheeraj and some other persons, whereas the complainant brought the accused appellant to the police station with the help of his friends Sanjay and Ashok and lodged the FIR, on the basis of which chick FIR Ex. Ka-8 was prepared by Constable Clerk Hari Prakash (PW5). He also made the necessary entries in the GD. Copy of GD is Ex. Ka-9. He also prepared the fard of recovery of knife, that is Ex. Ka-2. Investigation of this case was entrusted to SI Km. Kamlesh Sharma (PW6). Subsequently the investigation of this case was transferred to Circle Officer Ishwar Chand Sharma. Injuries of PW2 Ganga Prasad were medically examined by PW3 Dr. OP Sharma on the same day i.e. on 30.3.1996 at 9.30 pm and he also prepared the medical report Ex. Ka-4 of injured Ganga Prasad, who was brought to him by Dheeraj Kumar. Thereafter supplementary report Ex. Ka-5 was also prepared by the same Medical Officer. Appellant accused was also medically examined by PW3 Dr. OP Sharma on the same day at 10.10 pm, who prepared his injury report Ex. Ka-6. X-ray of injured Ganga Prasad (PW2) was done by PW4 Dr. RK Pandey, who also prepared the X-ray report Ex. 7. During the course of investigation, the I.O. took into possession the bloodstained clothes and slippers of Ganga Prasad and prepared the fard Ex. Ka-3. The I.O. also collected bloodstained and plain soil from the place of occurrence and prepared the fard Ex. Ka-10. Bloodstained knife, clothes, slippers and soil were sent to 2 the laboratory for chemical examination. Scientific Officer of the laboratory found human blood on the aforesaid articles. The I.O. also inspected the place of occurrence and prepared the site plan Ex. Ka-11. The Circle Officer also inspected the place of occurrence and prepared separate site plan Ex. Ka-12. During the course of investigation, the I.O. recorded the statements of the witnesses and after completing the investigation he filed the chargesheet Ex. Ka-13 under Section 307 IPC and 3(1) (10) of SC & ST Act. Separate chargesheet Ex. Ka-14 was filed against the accused appellant under Section 25/4 of the Act. 3. Learned Chief Judicial Magistrate, Haridwar after giving the necessary copies of the documents to the accused appellant as prescribed under Section 207 CrPC, committed both the cases under Section 307 IPC as well as under the case under Section 25/4 of the Act to the Court of Sessions on 28.6.1996. Learned Sessions Judge, Haridwar transferred these cases to 2nd Additional Sessions Judge, Haridwar for their disposal according to law. 4. On 11.9.1996, learned 2nd Additional Sessions Judge, Haridwar framed the charge against the accused appellant under Section 307 IPC. The charge was read over and explained to the accused appellant, who pleaded not guilty and claimed to be tried. On the same day, learned 2nd Additional Sessions Judge, Haridwar also framed the charge against the accused appellant under Section 25/4 of the Act. The charge was read over and explained to him, who pleaded not guilty and claimed to be tried. 5. To prove its case, the prosecution has examined PW1 Brijmohan, the complainant; PW2 Ganga Prasad, the 3 injured witness; PW3 Dr. OP Sharma, who medically examined the injured Ganga Prasad as well as the accused appellant; PW4 Dr. RK Pandey, who conducted the x-ray on the injured Ganga Prasad; PW5 Constable Clerk Hari Prakash, who prepared the chick FIR and made the entries in the GD and PW6 SI Km. Kamlesh Sharma, the I.O. of the case. 6. Thereafter, statements of the accused appellant was recorded under Section 313 CrPC. The oral and documentary evidence were put to him in question form, who denied the allegations made against him. However, in defence, he did not produce any documentary or oral evidence. 7. After hearing learned counsel for the parties and after appreciating the evidence available on record, learned 2nd Additional Sessions Judge, Haridwar vide his judgment and order dated 2.4.1997 convicted and sentenced to the accused appellant as discussed above. Against the aforesaid judgment and order dated 2.4.1997, the accused appellant has preferred the present appeal. 8. I have heard learned Counsel for the parties and have carefully perused the entire material available on the record. 9. Before any further discussion, it would be pertinent to mention the injuries found on the body of injured Ganga Prasad (PW2) as mentioned in the medical report Ex. Ka-4 prepared by PW3 Dr. OP Sharma, who had medically examined him on 30.3.1996 at 9.30 pm and the same are reproduced as below: “(1) Incised wound 2 cm x 0.5 cm x not probed on left side chest, at 2 O’clock 4 position and 5 cm away left nipple, obliquely placed tailing downward, margin clear cut well defined, bleeding. (2) Incised wound 2.5 cm x 0.5 cm x not probed on left side scapular region 2 cm above lin. angle of left scapular. Vertically placed tailing downward margin clear cut well defined bleeding. (3) Incised wound 1.5 cm x 0.7 cm x muscle deep on left iliac crest 1.5 lat. to left Ant. Rup. iliac spine tailing medially. Margin clear cut well defined bleeding. Opinion : Injury No. (1) & (2) kept under observation. X-ray advised. Injury no. (3) simple. All are fresh and caused by sharp object.” 10. Thereafter x-ray of PW2 Ganga Prasad was conducted by PW4 Dr. RK Pandey and on the basis of his x-ray report Ex. Ka-7, PW3 Dr. OP Sharma prepared the supplementary medical report Ex. Ka-5, which is reproduced below: “Skiagram showing fracture of lt. seventh rib posteriarly & surgical emphysema lt. side chest & neck. Left costophrenic angle is obliterated & hagyness in lt. lower zone. Opinion : Injuries are grievous in nature and dangerous to life.” 11. To prove the aforesaid medical reports Ex. Ka-4 and Ka-5, the prosecution has examined PW3 Dr. OP Sharma, who has proved the contents of same and has further stated that all the injuries of PW2 Ganga Prasad were fresh and were caused by sharp edged weapon. Injuries number 1 and 2 were kept under observation and x-ray was advised. Injury no. 3 was simple in nature. X-ray was conducted on 30.3.1996 and as per the x-ray report, 7th ribs of left side was fractured. Due to the injury on the 5 lungs, gas was found on the left side of the chest. On the basis of the abovesaid fact, it was stated that injury no. 1 and 2 was grievous in nature and dangerous to life. He has proved the injury report Ex. Ka-4 and supplementary report Ex. Ka-5. He has further stated that aforesaid injuries could be caused on 30.3.1996 at about 9 pm with knife. After seeing the knife Ex. 1, he has stated that injuries could be caused by this knife. This witness has further stated that on the same day i.e. on 30.3.1996 at 10.10 pm, the appellant accused was examined by him. At the time of examining, smell of alcohol was coming from his mouth. His eyes were red. Appellant accused was intoxicated but was not completely unconscious. 12. PW4 Dr. RK Pandey has stated that x-ray of chest of PW2 Ganga Prasad was conducted by him on 30.3.1996 and fracture was found on the 7th left ribs. Gas was found in the left side of chest and in the neck. X-ray report Ex. Ka-7 was prepared by him. He has identified the x-ray plat as Ex. 5. 13. To further prove its case, the prosecution has examined PW1 Brijmohan, the complainant who has reiterated the version made by him in the FIR Ex. Ka-1. He has also proved the fard Ex. Ka-2 by which the knife was taken in the possession by the Constable Clerk Hari Prakash (PW5) and he has also signed on that fard. He has also identified the knife used in the said crime which was recovered on the spot and given to the police and the bloodstained pants, slippers and shirt wore by the injured Ganga Prasad at the time of incident. Knife is Ex. 1, pant is Ex. 2, slippers are Ex. 3 & 3/1 and shirt is Ex. 4. This witness was cross-examined at length by the defence 6 counsel but nothing has come in his statement which may create any doubt about his deposition. 14. PW2 Ganga Prasad has stated that on 30.3.1996 at about 9 pm he was going to purchase bidi. Near the Daulat Tea Stall, the appellant accused was abusing labourers under intoxicated condition. He asked him not to abuse. Then the appellant accused attacked him with intention to kill him and caused injuries to him with knife in his chest, back and buttock. On hearing his noise, his son Brijmohan (PW1) and Dheeraj, Sanjay and Ashok came at the place of occurrence and thereafter the accused appellant was caught hold along with the knife. Dheeraj has taken him to hospital along with some other persons. His son Brijmohan gone to lodge the report. In the hospital he was medically examined and x-ray was also conducted. The I.O. taken in the possession his bloodstained shirt, pant, slippers and prepared the fard Ex. Ka-3. Pant is Ex. 2, slippers are Ex. 3 & 3/1 and shirt is Ex. 4 which he identified in the trial court. The aforesaid clothes and slippers were wore by him at the time of incident. This witness was cross-examined at length by the defence counsel but nothing has come in his statement which may create any doubt about his deposition. 15. PW5 Constable Clerk Hari Prakash has stated that on 30.3.1996 he was posted in Kotwali Haridwar. On that day at 9.40 pm, PW1 Brijmohan had given the written report Ex. Ka-1 scribed by Suresh Kumar. On the basis of this report, he had prepared the chick FIR Ex. Ka-8. He also made the necessary entries in the GD. Copy of GD is Ex. Ka-9. Brijmohan, Sanjay and Ashok when came along with the appellant accused, they had also given the bloodstained knife. Knife was sealed in the clothe and fard 7 Ex. Ka-2 was prepared by him. He has identified this knife in the trial court as Ex. 1 and namoona mohar as Ex. 6. 16. PW6 SI Km. Kamlesh Sharma, the I.O. of the case has stated that during the course of investigation, she has perused the chick FIR and other papers, recorded the statements of the witnesses, taken the bloodstained clothes and slippers of Ganga Prasad in possession which were wore by him at the time of incident and prepared the fard Ex. Ka-3. She has identified the pant as Ex. 2, slippers as Ex. 3 & 3/2 and shirt as Ex. 4. She has also inspected the place of occurrence and prepared the site plan Ex. Ka-11. Thereafter the investigation was transferred to Ishwar Chand Sharma, C.O., City, who also inspected the place of occurrence and prepared the site plan Ex. Ka-12. He has also collected the bloodstained and plain soil from the place of occurrence and prepared the fard Ex. Ka-10. He further recorded the statements of the witnesses and after completing the investigation, he filed the chargesheet Ex. Ka-13 under Section 307 IPC and 3(1)(10) of SC & ST Act. Separate chargesheet Ex. Ka- 14 was filed against the accused appellant under Section 25/4 of the Act. 17. Thereafter, statements of the accused appellant was recorded under Section 313 CrPC. The oral and documentary evidence were put to him in question form, who denied the allegations made against him. However, in defence, he did not produce any documentary or oral evidence. 18. Learned Amicus Curiae for the accused appellant argued that on the basis of the evidence discussed above, the prosecution has not proved the case against the accused appellant beyond reasonable doubt. I do not find 8 any substance in the argument of the learned Counsel for the accused appellant due to the following reasons: (i) That as per the statement of PW2 Ganga Prasad, the injured witness, on the date of incident i.e. on 30.3.1996 at about 9 pm, when he was going to purchase the bidi, he found the accused appellant abusing the labourers in intoxicated condition. When he asked him not to abuse, then the accused appellant attacked him with a knife with intention to kill him and in this incident he suffered injuries in his chest, back and buttock. When he made the noise, then his son Brijmohan (PW1) and Dheeraj, Sanjay and Ashok came at the place of occurrence and they caught hold of the accused appellant and recovered the knife from him. Thereafter he was taken to the hospital by Dheeraj and some other persons. PW1 Brijmohan with the help of some other persons brought the accused appellant to the police station and also lodged the report. Despite searching lengthy cross-examination, the defence Counsel has failed to elicit any material to shatter and discredit the testimony of this witness. His statement is reliable, believable and inspire the confidence. (ii) That statement of PW2 Ganga Prasad is fully corroborated by PW1 Brijmohan, the complainant. (iii) That the accused appellant was arrested immediately after the incident and the knife used in the commission of crime was also recovered from him. 9 (iv) That the forensic laboratory has reported that human blood was found on the knife recovered from the possession of the accused appellant. (v) That the incident took place at about 9 pm on 30.3.1996 and the report was lodged on the same day at 9.40 pm and the distance between the place of occurrence and the police station is about 1 km. Therefore, the FIR was also lodged promptly. (vi) That as per the medical reports of the injured Ganga Prasad (PW2) Ex. Ka-4 & Ka-5 prepared by PW3 Dr. OP Sharma, who had medically examined him on 30.3.1996 at 9.30 pm, the injured Ganga Prasad had suffered grievous injuries in his chest, back and buttock which were dangerous to life. His 7th ribs of left side was found fractured. The injuries were fresh and could be caused by some sharp edged weapon like the knife recovered from the accused appellant. PW3 Dr. OP Sharma has also examined the accused appellant and has stated that smell of alcohol was coming out from his mouth and he was intoxicated at that time. Thus, the ocular version of evidence adduced by the prosecution is well-corroborated by the medical evidence. 19. Thus, in view of my foregoing discussion of evidence and for the reasons recorded above, it is held that the prosecution has proved its case against the accused appellant beyond reasonable doubt for the offence punishable under Section 307 IPC and 25/4 of the Act and, therefore, the impugned judgment and order of the learned trial court is justified and correct and the same is liable to be upheld. 10 20. In the result, the appeal being devoid of merit is hereby dismissed. The common judgment and order dated 2.4.1997 passed by the 2nd Additional Sessions Judge, Haridwar in Sessions Trial No. 230 of 1996, State v. Raj Kumar @ Pappu under Section 307 IPC and Sessions Trial No. 229/1996, State v. Raj Kumar @ Pappu, under Section 25/4 of the Act is hereby confirmed. Conviction of the accused appellant under Section 307 IPC and 25/4 of the Act is affirmed and sentenced to undergo R.I. for seven years under Section 307 IPC and simple imprisonment for one month under Section 25/4 of the Act is also upheld. Both the sentences shall run concurrently. However, the period during which the accused appellant was in jail during investigation, trial and appeal shall be adjusted after verifying the same from the records. The appellant is on bail. His bail bond is cancelled. He shall be taken into custody forthwith to serve out the aforesaid sentence. 21. Copy of this judgment and order be sent to the trial court for its compliance. Let the trial court record be sent back. (Dharam Veer, J.) 05.7.2010 PRABODH 11