IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.1925 OF 2001 (Old No.12/1997) Beer Singh S/o Babu Ram R/o Govindpur Tudigiyan, P.S. Sitarganj, Nainital (Now U.S. Nagar) ……… Appellant The State Versus ……… Respondent Dated: April 21, 2010 Sri Rajesh Sharma, Adv. i/b Sri Rakesh Thapliyal, Adv. for the appellant Sri Amit Bhatt, learned Addl. GA 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 23.12.1996 passed by the First Additional Sessions Judge, Nainital in Sessions Trial No.211 of 1990, State Vs. Beer Singh, thereby convicting the appellant/accused u/s 304 (Part I) of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentencing him to seven years’ rigorous imprisonment with fine of Rs.2,000/- and in default, further R.I. for three months. Co-accused Ved Ram was acquitted of the charge levelled against him. 2. I have heard learned counsel for the parties and perused the entire material available on record. 2 3. In brief, the prosecution case is that complainant Mohan Lal (P.W.1) lodged an FIR on 31.5.1990 stating therein that he is the resident of Village Bankskhera, P.S. Amaria District Pilibhit and he had come along with his son Amar Singh to Village Govindpur Tundaliya P.S. Sitarganj in the marriage of his cousin’s brother Jagdish. In the procession of the said Barat, complainant’s son was performing a dance, which was being appreciated by all those attending the said procession. Meanwhile, appellant-accused Beer Singh also started performing the dance, however the dance performed by the appellant-accused was not appreciated due to which the appellant-accused became furious by saying that he would kill him (Amar Singh) and soon thereafter he stabbed a knife in the abdomen of Amar Singh and thereafter ran away from there. This incident was seen by Mahendra Pal and other, Dalchand & few others who were watching the procession. This incident took place around 11 PM on 30.5.1990. Injured was immediately taken by the complainant to P.H.C. Amariya where his wounds were stitched and he was advised to take the injured to P.S. Sitarganj for lodging a report there. While the complainant along with his son Amar Singh was on his way to Sitarganj, the condition of injured Amar Singh further deteriorated owing to which the doctors at Sitarganj advised the complainant to take the injured to Khatima because the Suregon was not available. Accordingly, the complainant took his injured son towards Khatima but on the way, his son succumbed to the injuries and then the dead body of Amar Singh was 3 `taken back to P.S. Sitarganj. With the same averments, the FIR Ex.Ka-1 was lodged by P.W.1 Mohan Lal on 31.5.1990 at 4:15 PM. Deceased Amar Singh was initially medically examined by PW3 Dr. B.B. Pant, who after the examination, prepared injury report Ex.Ka-2. Initially, the investigation of this case was entrusted to P.W.4 SI Satpal Singh, who prepared the inquest report Ex.Ka-3 along with necessary papers viz. sketch of dead body Ex.Ka-4, Police Form No.13 Ex.Ka- 5, letter to CMO for conducting the post-mortem and specimen of seal Ex.Ka-7. The post-mortem on the dead body of Amar Singh was conducted on 1.6.1990 at about 12 PM by the Medical Officer, Civil Hospital Haldwani (Nainital) and the post-mortem report Ex.Ka- 14 was prepared, the genuineness of which was admitted by the defence counsel. The I.O. also took in his possession the bloodstained clothes of deceased and prepared Fard, i.e. Ex.Ka-8. Thereafter the investigation was transferred to SI Satvir Singh (PW7), who inspected the place of occurrence and prepared the site plan, i.e. Ex.Ka-10. Thereafter the investigation was transferred to PW6 SI V.P.S. Rawat, who during investigation recorded the statements of witnesses and on completing the investigation, filed the charge sheet, i.e. Ex.Ka.9. Charge sheet was also submitted by the I.O. against the co-accused Ved Ram (who was acquitted by the trial court), i.e. Ex.Ka-13. 4. After receiving the charge sheet, learned CJM, Nainital committed the case to the court of Sessions on 7.08.1990 after giving necessary copies to the appellant/accused and co-accused as provided 4 under Section 207 Cr.P.C. The case was transferred by the Sessions Judge to Additional Sessions Judge for disposal as per law. 5. On 5.9.1990, learned Second Additional Sessions Judge, Dehradun has framed the charge against the appellant/accused Beer Singh u/s 302 IPC. The charge was read over and explained to appellant/accused, who pleaded not guilty and claimed to be tried. 6. To prove its case, the prosecution has examined P.W.1 Mohan Lal, complainant and eyewitness, P.W.2 Mahendra Pal, eyewitness, P.W.3 Dr. B.B. Pant, who initially examined the injured, P.W.4 S.I. Satpal Singh, to whom the initial investigation was entrusted, P.W.5 C.P. Nanha Babu, who took the dead body for post-mortem, P.W.6 S.I. V.P.S. Rawat, I.O. of the case and P.W.7 S.I. Satyaveer Singh, also I.O. of the case. 7. After that the statements of the appellant/ accused was recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to him in question form, who denied the allegations made against him and stated that he has been falsely implicated. No oral or documentary evidence was put in defence. 8. After hearing learned counsel for the parties and appreciating the entire material available on record, the learned I Additional Sessions Judge, Nainital vide judgment and order dated 23.12.1996 convicted and sentenced the appellant/accused as above said. 5 Feeling aggrieved by the aforesaid judgment and order, the accused/appellant has preferred the present appeal. 9. Before further discussion, it is pertinent to mention the injuries found in the injury report Ex.Ka-2 of deceased Amar Singh who was initially examined on 30.5.1990 at 11:30 PM by PW3 Dr. B.B. Pant, which are as follows: - “Incised wound 3 cm x 1.5 cm x intestinal deep on the right upper part of the abdomen, 8 cm above and outer to the umbilicus, bleeding present from the wound. He has not passed urine and stool since last 4 hours. Injury is caused by sharp cutting weapon.” 10. To prove the above-said report, the prosecution has examined PW3 Dr. B.B. Pant who proved the injury report Ex.Ka-2 prepared by him and stated that the injury is caused by sharp cutting weapon. 11. After that Amar Singh succumbed to his injuries and post-mortem on his dead body was conducted by the Medical Officer, Emergency, Civil Hospital, Haldwani (Nainital) on 1.6.1990 at 12 PM. In the post-mortem report (Ex.Ka-14), cause of death has been opined due to shock as a result of hemorrhage. It is pertinent to mention here that the genuineness of the post-mortem report was admitted by the defence counsel. 12. To further prove its case the prosecution has examined P.W.1 Mohan Lal, complainant and 6 eyewitness of the case, who has reiterated the version made in the FIR and he also proved the FIR Ex.Ka-1 lodged by him. 13. P.W.2 Mahendra Pal, eyewitness of the case, has also supported the prosecution case and further corroborated the contents made in the FIR as well as the statement of PW1 Mohan Lal against the appellant- accused. 14. P.W.4 S.I. Satpal Singh, who stated that this case was registered at P.S. Sitarganj on 31.5.1990 at 4:15 PM and he was entrusted with the investigation. He conducted the inquest on the dead body and prepared the inquest report Ex.Ka-3 and also prepared necessary documents viz. sketch of dead body Ex.Ka-4, Police Form NO.13-Ex.Ka-5, letter to CMO Ex.Ka-6 and after sealing the dead body, specimen of seal Ex.Ka-7. He also took in his possession bloodstained clothes viz. undershirts of deceased and prepared Fard, Ex.Ka-8. After that investigation was transferred to PW7 SI Satveer Singh. 15. PW5 Cosntable Nanhe Babu who has filed his affidavit and stated that on 31.5.1990 he along with Cosntable Bishan Ram was handed over the dead body to get the post-mortem conducted. On 1.6.1990, he handed over the dead body of deceased to Medical Officer, Civil Hospital Haldwani in sealed condition and till then the dead body remained with them, nobody was allowed to touch or tamper with it. 7 16. PW6 S.I. V.P.S. Rawat who stated that he was entrusted with the investigation of this case. During investigation he recorded the statements of witnesses and after completing the investigation, he filed the charge sheet, i.e. Ex.Ka-9. 17. PW7 S.I. Satyaveer Singh who stated that he inspected the place of occurrence and prepared the site plan, i.e. Ex.Ka-10. He also prepared the Fard Ex.Ka-11 of search of the appellant-accused. Thereafter the investigation was transferred to S.I. V.P.S. Rawat who after completing the investigation, filed the charge sheet. He also filed the charge sheet against co- accused Ved Ram (acquitted by trial court) i.e. Ex.Ka.13. 18. After that the statements of the appellant/ accused was recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to him in question form, who denied the allegations made against him and stated that he has been falsely implicated. No oral or documentary evidence was put in defence. 19. It was argued on behalf of the appellant- accused that the case has not been proved against him by the prosecution beyond reasonable doubt. I do not find any force in this argument for the reason that that PW1 Mohan Lal along with his son Amar Singh had come in the Barat of one Jagdish to the village Govindpur Tundaliya, around 11 PM on 30.5.1990. While the band was being played, Amar Singh, son of complainant, was performing a dance and at that very time, the appellant-accused Beer Singh also joined 8 Amar Singh in that dance, The dance of deceased Amar Singh was appreciated by all those attending the said procession while the dance being performed by the appellant-accused Beer Singh was not appreciated. As a result of that, the appellant-accused Beer Singh became furious and he stabbed a knife in the abdomen of Amar Singh and thereafter ran away from there. This incident was seen by Mahendra Pal (PW2) and other persons who were watching the procession. Thereafter, the injured was immediately removed by the complainant to P.H.C. Amariya where the first aid was given and thereafter his wounds were stitched and he was advised to take the injured to P.S. Sitarganj for lodging a report there. While PW1 Mohan Lal along with his son was on his way to Sitarganj, the condition of injured Amar Singh further deteriorated owing to which the doctors at Sitarganj advised the complainant to take the injured to Khatima because the Surgeon was not available. Accordingly, PW1 Mohan Lal took his injured son towards Khatima but on the way, his son Amar Singh succumbed to the injuries and then the dead body of Amar Singh was taken back to P.S. Sitarganj and the report Ex.Ka-1 was lodged. The above said facts also get full corroboration from the oral testimony of PW1 Mohan Lal and PW 2 Mahendra Pal, who are the eyewitnesses of the incident. The oral testimony also gets corroborated from the medical evidence. Initially, deceased Amar Singh, after receiving the injuries, was initially examined on 30.5.1990 at 11:30 PM by PW3 Dr. B.B. Pant and in the injury report Ex.Ka-2, the medical officer found an 9 incised wound 3 cm x 1.5 cm x intestinal deep on the right upper part of the abdomen and the bleeding was also present from the wound. It was also opined that the injury is caused by sharp cutting weapon. After that Amar Singh succumbed to his injuries and post- mortem on his dead body was conducted by the Medical Officer, Emergency, Civil Hospital, Haldwani (Nainital) on 1.6.1990 at 12 PM, in which the cause of death has been opined due to shock as a result of hemorrhage. It is pertinent to mention here that the genuineness of the post-mortem report (Ex.Ka-14) was admitted by the defence counsel. Thus, the medical version also fully corroborates the prosecution version. Therefore, as per the above- said discussion, it is proved that on 30.5.1990 at about 11 PM, the appellant-accused had stabbed the knife in the abdomen of Amar Singh at Village Govindpur Tundaliya, P.S. Sitarganj, District Nainital (now District U.S. Nagar) due to which he succumbed to his injuries and thereby he committed culpable homicide not amounting to murder, and therefore, the offence punishable u/s 304 (Part I) is clearly made out against the appellant-accused beyond reasonable doubt and the trial court has rightly convicted and sentenced the appellant-accused as above discussed and I also concur the view taken by the trial court. 20. For the reasons as stated above, the appeal lacks merit and is hereby dismissed. Judgment and order dated 23.12.1996 passed by the I Addl. Sessions Judge, Nainital in S.T. No.211 of 1990, State Vs. Beer 10 Singh, convicting and sentencing the appellant-accused as above discussed, is hereby made affirmed. The appellant-Beer Singh is on bail. His bail bonds are cancelled. Let him be taken into custody to serve out the sentence as awarded against him. 21. A copy of this order along with lower court record be sent back for compliance forthwith. Rajeev Dang (Dharam Veer, J.) 21.04.2010