IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.1924 Of 2001 (OLD NO.1330/1993) Shree Chand & Others ……… Appellants/accused Versus State of Uttar Pradesh ……… Respondent August 10, 2009 Mr. Sandeep Tandon, Advocate for the appellant. Mr. M.A. Khan, Brief Holder for the State. HON’BLE DHARAM VEER, J. This appeal, preferred by the appellant under Section 374(2) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as ‘CrPC’), is directed against the judgment and order dated 13.7.1993 passed by the 2nd Additional Sessions Judge, Dehradun in Sessions Trial No. 83/1992, State v. Savitri Devi & Ors., whereby the learned 2nd Additional Sessions Judge has convicted all the four appellants/accused, viz., Shree Chand, Smt. Savitri Devi, Ajay Pal and Smt. Seema under Section 323 read with Section 34 of The Indian Penal Code, 1860 (for short, ‘IPC’) and sentenced the appellant no. 1 Shree Chand and appellant no. 3 Ajay Pal to undergo rigorous imprisonment for six months. However, taking lenient view on the sentence in respect of appellant no. 2 Smt. Savitri Devi and appellant no. 4 Smt. Seema, learned 2nd Additional Sessions Judge, Dehradun has fined both of them with Rs. 500/- each and in default, both of them were directed to undergo simple imprisonment of three months. 2. Heard learned Counsel for the parties and perused the materials available on record. 3. In brief, the prosecution case is that on 22.6.1991, PW2 Karam Singh had informed to the Police Station Vikas Nagar that the appellants had beaten him and his wife Smt. Soni Devi on that day at 6.30 pm at the tiraha near Bhojawala. On the basis of this information, NCR No. 86/91 under Sections 323/504 IPC was registered at PS Vikas Nagar on 22.6.1991 at 8.35 pm. Necessary entries were made in the GD. Copy of GD is Ex. Ka-4. PW1 Soni Devi and PW2 Karam Singh were sent for the medical treatment. PW2 Karam Singh was medically examined by PW3 Dr. D.P. Purohit on 22.6.1991 at 9.35 pm and his medical report is Ex. Ka-2. PW1 Smt. Soni Devi was also medically examined on the same day at 9.05 pm by Dr. D.P. Purohit and her medical report is Ex. Ka-3. Lateron an application was moved by PW2 Karam Singh on 27.6.1991 before the Superintendent of Police, Dehradun with the averments that on 22.6.1991 at about 6.30 pm, his wife Soni Devi (PW1) had gone to fill up the water at the public tap situated near her house, appellant no. 3 Ajay Pal came there and threw her water box. His wife came back and narrated the incident to him. Thereafter he went to the tiraha near Bhojawal and asked the appellant no. 3 Ajay Pal as to why he did so. Upon this, all the appellants/accused started beating him. When his wife Soni Devi came for his rescue, then appellant no. 1 Shree Chand hit on her head with a lathi with intention to kill her. Due to this, blood started oozing out from her head. Other appellants/accused also caused injuries with the dandas and also hurled abuses on the complainant and his wife. As a massive crowd assembled at the place of occurrence, the appellants/accused escaped from the spot after threatening to kill him, his wife and other family members. This incident was also witnessed by Roshan Lal (PW4) and Chunni Lal. Thereafter complainant along with his wife Soni Devi went to the police station and narrated the entire incident to the police, from where he and his wife Soni Devi were taken for the medical treatment by a Constable. But the police did not lodge the report and only NCR under Section 323 IPC was lodged wherein the entire incident was not written by the police. With these averments, an application Ex. Ka-1 along with copies of medical reports was moved by the complainant Karam Singh (PW2). 4. On the basis of the aforesaid complaint, the case was converted under Section 308, 504 and 506 IPC on the orders of the Additional Superintendent of Police. Necessary entries were made in the GD. Copy of the GD is Ex. Ka-5. 5. Investigation of this case was entrusted to S.I. Sharad Kumar (PW5), who during the course of investigation recorded the statements of the witnesses and prepared the site plan Ex. Ka-6 after inspecting the place of occurrence. After completing the investigation, the chargesheet Ex. Ka-8 was filed by the I.O. against the appellants/accused Smt. Savitri, Seema and Ajay Pal, whereas separate chargesheet Ex. Ka-9 was filed against the appellant no. 1 Shree Chand. 6. 2nd ACJM, Dehradun, after giving the necessary copies of the documents to the appellants/accused as prescribed under Section 207 CrPC, committed the case to the court of Sessions on 19.6.1992. Learned Sessions Judge transferred the case to the 2nd Additional Sessions Judge, Dehradun for its disposal according to law. 7. Learned 2nd Additional Sessions Judge, Dehradun framed the charges against the appellants/accused under Section 308 read with Section 34 and Section 506 IPC. 8. To prove its case, the prosecution has examined PW1 Soni Devi, the injured witness; PW2 Karam Singh, the complainant and injured witness; PW3 Dr. D.P. Purohit, who medically examined Soni Devi (PW1) and Karam Singh (PW2); PW4 Roshan Lal, an eyewitness and PW5 S.I. Sharad Kumar, the I.O. of the case. 9. Thereafter, statements of each the appellants/accused were recorded under Section 313 of Cr.P.C. The oral and documentary evidence were put them in question form, who denied the allegations made against them and stated that they have been falsely implicated in the case because of enmity on account of land dispute. In defence, the appellants/accused have produced one witness DW1 Maya Ram. However, in defence, they did not produce any documentary evidence. 10. After appreciating the evidence and after hearing learned Counsel for the parties, learned 2nd Additional Sessions Judge, Dehradun vide his judgment and order dated 13.7.1993 convicted the appellants/accused and sentenced each of them as discussed above. Against the aforesaid judgment and order dated 13.7.1993, the appellants/accused have preferred the present appeal. 11. Before any further discussion, it would be pertinent to mention the injuries found on the body of the complainant Karam Singh (PW2), who was medically examined by PW3 Dr. D.P. Purohit on 22.6.1991 at 9.35 pm and found the following injuries as mentioned in Ex. Ka-2: “(1) One lacerated wound over inner part of left upper lip, 0.8 cm x 0.5 cm x muscle 1.00 cm inner from outer angle of left lip, soft blood clot present. (2) One abrasion over front part of left upper arm 4.5 cm x 1.5 cm in size, CA 15.00 cm above left elbow joint, reddish in colour. (3) Multiple linear abrasion over front part of left upper arm 4.00 cm x 3.00 cm in size reddish in colour, 22.00 cm above left elbow joint. (4) One linear abrasion over left side of sternum 2.00 cm in size, reddish in colour, 3.00 cm below left sternoclavicular joint. Conclusion : The above No. (1) to No. (4) injuries are caused by some blunt object or friction and simple in nature. Duration : Fresh.” 12. PW1 Smt. Soni Devi was also medically examined on 22.6.1991 at 9.05 pm by PW3 Dr. D.P. Purohit and the following injuries were found on her body as mentioned in Ex. Ka-3: “(1) One lacerated wound over right side of head 7.00 cm x 1.00 cm x scalp deep in side, fresh bleeding is present from this wound, 12.00 cm above roof of the nose. (2) One contusion over back part of right chest 14.00 cm x 4.00 cm in size, reddish in colour, 3.5 cm inner from tip of right shoulder. (3) Contusion over left side of front part of upper arm 3.5 cm x 2.6 cm in size, reddish in colour. Conclusion: The above No. (1) to No. (3) injuries are caused by some blunt object. The nature of No. (2) & No. (3) injuries is simple in nature. The nature of No. (1) injury can be assessed after X Ray investigation of skull to detect any bony lesion. Duration : Fresh.” 13. To prove the abovementioned medical reports Ex. Ka-2 and Ka-3, the prosecution has examined PW3 Dr. D.P. Purohit, who has proved these medical reports prepared by him and also the injuries mentioned in these reports. He has further stated that injuries on PW1 Soni Devi and PW2 Karam Singh could have been caused on 22.6.1991 at 6.30 pm with lathis and dandas. 14. To further prove its case, prosecution has examined PW2 Karam Singh, the injured witness and complainant of the case, who has stated that on 22.6.1991 at about 6.30 pm, his wife Soni Devi (PW1) had told him that when she had gone on the public tap to take the water then appellant no. 3 Ajay Pal had thrown her water box. Then he went to Bhojawala tiraha and asked from Ajay Pal as to why he did so. On that place, Savitri Devi, Seema Devi and Shree Chand were also present who were armed with lathis. The appellants/accused hurled abuses on him and also beaten him. When his wife Soni Devi came to his rescue, then appellant no. 1 Shree Chand hit on her head with lathi. Other appellants/accused also hit them with lathis. At that time, Roshan Lal (PW4) and Chunni Lal also came on the spot and after seeing them, the appellants/accused ran away from the spot after abusing him and his wife Soni Devi. Thereafter he and his wife came to the police station where he gave the oral information of the said incident. They were taken to the hospital at Vikas Nagar by a police constable where they were medically examined. Her wife was also X-rayed. When police did not take any action on his report, then he moved an application before the S.P. On the basis of that application, police started the investigation. That application is Ex. Ka-1. This witness was cross-examined at length by the defence counsel but nothing has come in his deposition which may create any doubt and statement of this witness is natural, believable and inspire confidence. 15. Statement of PW2 Karam Singh is corroborated by the deposition of another injured witness PW1 Soni Devi, who has stated that when on 22.6.1991 at 6.30 pm she had gone to take the water, appellant no. 3 Ajay Pal did not allow her to fill up the water and he threw her water box. When she told this incident to her husband (PW2 Karam Singh), then he went to Bhojawala chauraha and enquired about it from Ajay Pal. On this Ajay Pal, Shree Chand and Savitri started beating her husband. When she tried to save her husband then appellant no. 1 Shree Chand hit on her head with a lathi. Seema and Savitri also hit her with lathis. At the time of incident, Roshan Lal (PW4) and Chunni Lal had also arrived at the place of occurrence. The appellants/accused escaped from the spot after beating them and after hurling abuses on them. Thereafter she along with her husband came to the police station where her husband lodged the report. From the police station they were taken to the hospital by a Constable for medical examination. Her X-ray was also done at Doon Hospital. This witness was also cross- examined at length by the defence counsel but could not be shaken. 16. PW4 Roshan Lal, an eyewitness, has also corroborated the statements of PW1 Soni Devi and PW2 Karam Singh. 17. PW5 S.I. Sharad Kumar has stated that on 8.7.1991, he was posted at Vikas Nagar police station. On that day, investigation of this case was entrusted to him. He has proved the copy of the GD Ex. Ka-4. On the same day, he had received the letter from the Additional S.P. along the application Ex. Ka-1 moved by PW2 Karam Singh and the medical reports. On the orders of the Additional S.P. the case was converted under Section 308 IPC. Necessary entries were made in the GD No. 17 dated 8.7.1991 by Head Moharrir Roop Chand. Copy of this GD is Ex. Ka-5. During the course of investigation, he recorded the statements of the witnesses and prepared the site plan of the place of occurrence on the pointing out of the complainant and other witnesses. That site plan is Ex. Ka-6. Accused Ajay Pal, Savitri and Seema were arrested, entry of which was made in the GD No. 24 by Head Moharrir Roop Chand, coy of which is Ex. Ka-7. After completing the investigation he has filed the chargesheet Ex. Ka-8 against the appellants/accused Smt. Savitri, Seema and Ajay Pal, whereas separate chargesheet Ex. Ka-9 was filed against the appellant no. 1 Shree Chand. 18. Thereafter, statements of each the appellants/accused were recorded under Section 313 of Cr.P.C. The oral and documentary evidence were put to them in question form, who denied the allegations made against them and stated that they have been falsely implicated in the case because of enmity on account of land dispute. In defence, the appellants/accused have produced one witness DW1 Maya Ram. However, in defence, they did not produce any documentary evidence. 19. DW1 Maya Ram has stated that appellant no. 1 Shree Chand and his wife were known to him. Father- in-law of Shree Chand expired on 21.6.1991 in village Bandrota, Jaunsar. Being his Purohit, he had gone there in the morning of 22nd. Shree Chand and his wife (Savitri Devi) had reached there in the morning of 22.6.1991 and returned from there on 24.6.1991 at about 4.30 pm. 20. Learned Counsel for the appellants/accused submitted that the prosecution has not proved the case against the appellants/accused beyond reasonable doubt for the offence punishable under Section 323 read with Section 34 IPC. I do not find any substance in the submission of the learned Counsel for the appellants/accused for the following reasons: (i) That as per the evidence, PW1 Soni Devi had gone to take the water from the public tap. Appellant no. 3 Ajay Pal threw her water box. Soni Devi complained the matter to her husband Karam Singh (PW2), who went to the tiraha near Bhojawala, where appellants/accused were already present armed with the lathis. They started beating him and when his wife Soni Devi came for his rescue, appellant no. 1 Shree Chand hit on her head with the lathi. Other appellants/accused also beaten Soni Devi and her husband Karam Singh with the lathis and also hurled abuses on them. Thereafter PW2 Karam Singh had gone to the police station along with his wife Soni Devi (PW1), where he gave oral information of the incident, upon which NCR No. 86/91 under Sections 323/504 IPC was registered at PS Vikas Nagar on 22.6.1991 at 8.35 pm. Complainant and his wife were taken to the hospital by a Constable for the medical treatment. PW1 Soni Devi was medically examined at 9.05 pm on that day and PW2 Karam Singh was also medically examined at 9.35 pm on the same day by PW3 Dr. D.P. Purohit, who has proved the medical reports prepared by him i.e. Ex. Ka-3 and Ka-2 respectively. (ii) That statements of injured witnesses, viz., PW1 Soni Devi and PW2 Karam Singh are corroborated by the deposition of an independent eyewitness Roshan Lal PW4 and also from the medical reports of the injuries Ex. Ka-2 and Ka-3 prepared by PW3 Dr. D.P. Purohit. (iii) That the incident happened on 22.6.1991 at about 6.30 pm and the information of this incident was given in the police station at 8.35 pm on the same day and the distance of the police station from the place of occurrence is about 2 km. Thus, it is clear that the report of this incident was promptly lodged and injured were also medically examined immediately thereafter at 9.05 pm and 9.35 pm, who were sent to the hospital along with a police constable. 21. In view of my foregoing discussion and conclusion, the charge under Section 323 read with Section 34 stands proved against the appellants/accused beyond reasonable doubt. As regards the argument of learned Counsel for the appellants/accused that the sentence awarded by the trial court to the appellants/accused no. 1 and 3, viz., Shree Chand and Ajay Pal is on the higher side and is not commensurate with the offence they have committed. The argument of learned Counsel lacks substance in view of the facts and circumstances of the case, as three injuries were caused to Soni Devi (PW1) and one of the injuries was caused on her head by appellant no. 1 Shree Chand. The appellants/accused have also inflicted four injuries on Karam Singh (PW1). As such, I am of the considered view that the sentence awarded to the appellants/accused no. 1 and 3, viz., Shree Chand and Ajay Pal is commensurate with the offence they have committed, which stands proved by substantial evidence. As such, the impugned judgment and order dated 13.7.1993 passed by the 2nd Additional Sessions Judge, Dehradun in Sessions Trial No. 83 of 1992, State v. Savitri & Ors. is justified and correct and the same is liable to be upheld. 22. Resultantly, the appeal being devoid of merit is hereby dismissed. Conviction of the accused under Section 323 read with Section 34 is hereby upheld and the sentence awarded to them is also confirmed. Appellants are on bail. Their bail bonds are cancelled. Let appellant/accused no. 1 Shree Chand and appellant/accused no. 3 Ajay Pal be taken into custody to serve out the sentence. Realization of fine be made from the appellant/accused no. 2 Smt. Savitri Devi and appellant/accused no. 4 Smt. Seema, failing which they shall also be taken into custody to serve out the sentence imposed upon them. 23. Copy of this order be sent to the trial court forthwith for its compliance. Let the lower court record be sent back. (Dharam Veer, J.) 10.8.2009 PRABODH