COURTS’S ORDER WHETHER THE CASE IS OR IS NOT APPROVED FOR REPORTING {Chapter VIII, Rule 32(2)(b)} Description of the Case. Criminal Appeal No.1220 of 2001 (Old Case No.1644 of 1990) 1. Kanthu, son of Shri Jhauriya, 2. Bihari Lal, son of Shri Kanthu, All above residents of village Danoli, Patwari circle Khandogi, Patti Jakhanidhar, Tehsil Pratap Nagar, District Tehri Garhwal. …..Appellants Versus State of U.P. ……..Opposite Party Sri Lokendra Dobhal, learned counsel for the appellants. Sri M.A. Khan, learned brief holder for the state. Approved for reporting Not approved for reporting. Dated: 23.11.2007 (Dharam Veer,J) Reserved Court No.7 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No.1220 of 2001 (Old case No.1644 of 1990) 1. Kanthu, son of Shri Jhauriya, 2. Bihari Lal, son of Shri Kanthu, All above residents of village, Danoli, Patwari circle Khandogi, Patti Jakhanidhar, Tehsil Pratap Nagar, District Tehri Garhwal. ……….Appellants Versus State of U.P. ………..Opposite Party Sri Lokendra Dobhal, learned counsel for the appellants. Sri M.A. Khan, learned brief holder for the state. Dated:23.11.2007 Hon’ble Dharam Veer, J. This criminal appeal, preferred under section 374 (2) of The Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.) is directed against the judgment and order dated 27.07.1990 passed by Sessions Judge, Tehri Garhwal in Sessions Trial No. 10 of 1988, State v. Kanthu and another, whereby the learned Sessions Judge has convicted appellant Kanthu under Section 326 read with Section 34 of The Indian Penal Code, 1860 (hereinafter referred to as I.P.C.) and Section 324 read with Section 34 I.P.C. and awarded sentence for one year’s R.I under Section 326 read with Section 34 I.P.C. and six months’ R.I. under Section 324 read with Section 34 I.P.C. and has convicted appellant-Bihari Lal under Sections 326 and 324 I.P.C. and awarded sentence for one year’s R.I under Section 326 I.P.C. and six months’ R.I. under Section 324 I.P.C. and has further directed that both the sentences of both the appellants shall run concurrently. 2. In brief, the prosecution case is that Smt. Munni Devi was married to accused-appellant Bihari Lal about one and half years before the said incident. and accused-appellant Bihari Lal had doubt on her character. He stated to complainant Smt. Munni Devi that she had illicit relations with Parma, her brother-in-Law (Jeeja). That fact was stated by complainant Smt. Munni Devi to her mother. After knowing this fact, the mother of complainant Munni Devi scolded the appellant Bihari Lal and made him understand. When complainant Smt. Munni Devi returned to her matrimonial house, her husband beat her for disclosing that fact to her mother and threatened to kill her and also forbade her to go to the house of her mother. On 15 Gate Bhado, her brother came to her house situated at Jelam Bartakhund then she told her brother about the said incident. Thereafter, she was preparing to go to the house of her mother along with her brother then accused-appellant Bihari Lal told her that she could not go to the house of her mother and caused injuries to her with knife and tried to cut her neck then she tried to save herself with her hand and due to that she received injury in her hand. Accused- appellant Bihari Lal also caused injury with knife on the nose of complainant Munni Devi and also on her mouth. On hearing the noise of her cries, her brother Vikram came to intervene and save her sister then her brother was caught hold by accused-appellant Kanthu, father of accused-appellant Bihari Lal and Bihari Lal also caused injury on the neck of Vikram with knife and accused- appellant Kanthu also told Bihari Lal to kill complainant Munni Devi. The said incident was said to be taken place on 02.09.1987 at about 2.00 P.M. at village Jelam Bartakhund Lok and the F.I.R. was lodged by Smt. Munni Devi orally at Patwari circle Khandogi, District Tehri Garhwal on 02.09.1987 at 5.00 P.M and the Chik F.I.R., i.e. Ex.Ka- 1, was prepared and the entry was made in the G.D., the copy of the G.D. is Ex.Ka-2. During the course of investigation, the Patwari (Investigating Officer) prepared the site plan of the place of occurrence, the site plan is Ex.Ka-3 (in the rural areas of hill Districts of Uttarakhand the Patwaris are vested with the police powers) and the accused-appellant Bihari Lal was also arrested by the police on 02.09.1987 and on the pointing out of Bihari Lal one dagger was recovered from the field and Fard was prepared, that Fard is Ex. Ka-4. The blood stained clothes of Smt. Munni Devi (one shawl and one white blouse) were also taken into possession by the Investigating Officer and the Fard was prepared i.e. Ex.Ka-6. Smt. Munni Devi was medically examined by the Medical Officer, Government Hospital, Ajnisain, Tehri Garhwal on 03.09.1987 at 9.30 AM, the injury report is Ex.Ka-8. Vikram was also medically examined by the Medical Officer, Government Hospital, Ajnisain, Tehri Garhwal on 03.09.1987 at 9.45 AM, the injury report is Ex.Ka-9. During the course of Investigation, the Investigating Officer recorded the statements of witnesses and after completing the investigation, he submitted charge sheet against the appellants on 12.10.1997, the charge sheet is Ex.Ka-7. 3. Learned Chief Judicial Magistrate, Tehri committed the case to the Court of Session on 12.05.1988 under Section 209 Cr.P.C. after complying the provisions of Section 207 Cr.P.C. 4. Learned Sessions Judge, Tehri Garhwal framed charges on 29.08.1988 against the present accused-appellants under Sections 307/34 and 326/34 I.P.C. and the charges were read over and explained to the appellants who pleaded not guilty and claimed to be tried. 5. To prove its case the prosecution examined P.W.1 Munni (complainant and the injured witness), P.W.2 Vikram (injured and eye witness), P.W.3 Indra Dutt Dangwal, Patwari (Investigating Officer), P.W.4 Dr. J.N. Tripathi, Medical Officer who has medically examined Smt. Munni Devi and Vikaram. After that the statement of the appellants were recorded under Section 313 Cr.P.C., who denied the allegations made against them and in defence they did not produce any oral evidence but they filed documentary evidence i.e. Ex.Kha-1, Ex.Kha-2 and Ex.Kha-3. 6. After appreciating the evidence on record and hearing learned counsel for both the parties, learned Sessions Judge, Tehri Garhwal has convicted appellant Kanthu under Section 326 read with Section 34 I.P.C. and Section 324 read with Section 34 I.P.C. and awarded sentence for one year’s R.I under Section 326 read with Section 34 I.P.C. and six months’ R.I under Section 324 read with Section 34 I.P.C. and has convicted appellant- Bihari Lal under Sections 326 and 324 I.P.C. and awarded sentence for one year’s R.I under Section 326 I.P.C. and six months’ R.I. under Section 324 I.P.C. and has further directed that both the sentences of both the appellants shall run concurrently. 7. Against the said judgment and order, the appellants have preferred the instant appeal. 8. I have heard Sri Lokendra Dobhal, learned counsel for the appellants as well as Sri M.A. Khan, learned brief holder for the State and perused the entire record of the trial court. 9. To prove its case the prosecution has examined P.W. 1-Smt. Munni whose statement was recorded on 25.04.1990 in the trial court. She has stated in her statement that Bihari Lal is her husband and Kanthu is her father-in-law. She was married to Bihari Lal 4-1/2 years before and after the marriage of 8-9 months the behaviour of her husband and her father-in- law was normal with her. After that Bihari Lal started to say that she (Munni Devi) had illicit relation with her brother-in-law (Jeeja) Parma and due to this reason Bihari Lal used to beat her and used to threat her. After that this fact was disclosed by her to her mother and brother. Then, her mother called Bihari Lal and made him understand and thereafter, she was sent along with her husband Bihari Lal. After that she came to her matrimonial house and Bihari Lal told her that why she had disclosed that fact to her mother. Due to the fear she also took her younger sister Beeja along with her in her matrimonial house. Bihari Lal told her that he would kill her and due to the reason she had complained to her mother against him. On 15 Gate Bhado her brother Vikaram came to her matrimonial house to take his sister Beeja and on 16 Gate Bhado, he remained there and on 17 Gate Bhado, when he was preparing to go his house along with his sister Beeja then she told him that she would also go along with him then her brother asked reason to go with him. Muni Devi told that Bihari Lal had threatened her to kill her that is why she wanted to go along with him. When she was preparing to go along with her brother and at that time his brother Vikram was outside the house, then accused- appellants Bihari Lal and Kanthu forbade her to go to the house of her mother and when she told them that she would go along with her brother, Bihari Lal came with knife and made her fall down on the earth. She and her sister cried and his brother reached on the place of occurrence. Meanwhile, his brother was caught hold by accused-appellant Kanthu and when Bihari Lal was trying to cause injury with knife on her neck then she saved herself from her hand and due to this reason she received injury in her hand. Bihari Lal also caused injury on her nose with knife due to this her mouth became disfigured and she received injury on her nose and cheek and when her brother tried to intervene, he was caught hold by Kanthu and Bihari Lal caused injuries on the neck and head of her brother Vikram with the knife due to this her brother received injuries on his neck and head. From there she and her brother Vikram ran away and reached at the Patwari Chawki Khandogi. She identified the knife, Ex.-1 and stated that it is the same knife with which the injuries were caused to her and her brother. She also stated that report, Ex.Ka-1 was lodged by her in the Patwari Chawki. She has further stated that in the above said incident the blood was stained on her shawl (chadar) and blouse and the shawl is Ex.2 and the blouse is Ex.3, Which were given to the Patwari by her during the course of investigation. She has further stated that nearby her house, there is no other house of any person and she has further stated that the said incident took place about 2-3.00 P.M in the day. She has further stated that on that day when the incident took place they stayed in the Patwari Chawki Khandogi and the next day she went to Ajnisain Hospital, where she was medically examined. She has further stated that she had no illicit relation with her brother-in-law (Jeeja) Parma. This witness was cross-examined by the defence counsel at length but nothing has come out from her statement which may create any doubt in her evidence. The evidence of this witness is reliable and believable. 10. P.W.2 is Vikram whose statement was recorded on 26.04.1990 in the trial court. He has stated that Smt. Munni Devi was married to accused-appellant Bihari Lal about 4-1/2 years before and accused- appellant Kanthu is father-in-law of Smt. Munni Devi. After 8 months of the marriage, Bihari Lal used to beat his sister and used to say that she had illicit relation with her brother-in-law (Jeeja) Parma. When Bihari Lal and Munni came to his house, his mother made Bihari Lal understand and after that Munni went to her matrimonial house along with Bihari Lal and his sister Beeja also went along with Smt. Munni Devi due to the fear of Bihari Lal. On 15 Gate Bhado, he went to the house of his sister Munni Devi to take Beeja from her house and he stayed there upto 17 gate Bhado then Munni Devi told him to go along with him and for that Munni Devi was preparing to go with him then Kanthu forbade her to go to the house of her mother. Meanwhile, Bihari Lal reached there holding knife in his hand and was trying to cause injury wit that knife on the neck of Munni Devi. When Munni Devi tried to save herself, she received injury on her hand and Bihari Lal also caused injury with the knife on her nose and he was caught hold by Kanthu and Bihari Lal caused injury with knife to him. After that, they reached to Patwari Chawki Khandogi and his sister Munni Devi lodged the report at the Patwari and the next day of the incident, he and his sister were medically examined by the Medical Officer, Government Hospital, Ajnisain. He identified the knife as Ex-1. This witness was also cross-examined by the defence counsel at length but nothing has come out from his statement which may create any doubt in his evidence. The evidence of this witness is also reliable and believable. 11. P.W.3 is Indra Dutt Dangwal, who has stated that on 02,09,1987 he was posted as Patwari Ajnisain and he was also incharge of Patwari Circle Khandogi. On that day at about 5.00 PM, Munni Devi reached at Patwari Circle Khandogi along with her brother Vikram in an injured condition. Munni Devi lodged the report orally and on the dictation of Munni Devi he prepared the report and after that she put her thumb impression on the report written by him, the report is Ex.Ka-1 and the entry was also made in the G.D., the copy of the G.D. is Ex.Ka-2. During the course of investigation, he prepared the site plan of the place of occurrence i.e. Ex.Ka-3 and on the pointing out of accused-appellants he recovered the knife, i.e. Ex.1 and the Fard was also prepared i.e. Ex.Ka-4 and the accused appellants Bihari Lal and Kanthu were arrested on the same day i.e. on 02.09.1987. The memo of arrest of the accused- appellants was also prepared i.e. Ex.Ka-5. Blood stained clothes of Munni Devi were taken into possession, i.e. Ex.2 & Ex.3 on 03.09.1987. Munni, Vikram and accused-appellant Bihari Lal were medically examined in the Ajnisain Hospital. During the course investigation he recorded the statement of the witnesses and after completing the investigation, he submitted the charge- sheet i.e. Ex.Ka-7. 12. P.W.4 is Dr.J.N. Tripathi, who has stated that on 03.09.1987 he was posted as Medical Officer, Government Hospital, Ajnisain. Smt. Munni Devi was medically examined by him on 03.09.1987 at 9.30 AM and she was brought to him by Padam Singh Rana, peon, Patwari Circle Khandogi. He found the following injuries on her body:- I. Incised wound – 3 Cms x .75 Cm x.5 Cm over the nasal bridge placed horizontally & tailed off to the left side near inner canthus of the left eye and the margins of the wound everted. II. Incised wound – 3.5 Cms x .25 Cm x skin deep over the palmer surface of the left hand on the left thumb and tailed off towards wrist joint and margin of wound everted. III. Abrasion – 3 Cms x .25 Cm on the left cheek placed transversely 3 Cms below the left eye. IV. Abrasion – 1 Cm x .2 Cm over the left side of face just below the left eye. V. Abrasion – 2 Cms x .2 Cm on the outer angle of the left eye. 13. Dr. J.N. Tripathi has further stated that all the injuries on her nose were simple in nature and injury nos. 1 & 2 could be caused with the sharp edged weapon and injury no.3 to 5 could be caused by friction on a rough surface and all the injuries could possibly be caused within 12 to 24 hours at the time of medical examination. He has prepared the injury report i.e. Ex. Ka-8 on the Same day. Vikram was medically examined by him on the same day i.e. 03.09.1987 at 9.45 AM and he found the following injuries on his body:- I. Incised wound – 7 Cms x .2 Cm x skin deep over the right side of neck placed obliquely beside the mandibular lower margin. It is placed above 2 Cms, below the right mastoid antreum and tailed off towards the thyroid cartilage. The margins of wound are regular and everted. II. Abrasion – 6 Cms x .25 Cm over the left side of face started above from later side of eyebrow towards left ear. 14. P.W.4 Dr. J.N. Tripathi has further stated that in his opinion all the injuries were simple in nature and injury no.1 could possibly be caused by sharp edged weapon and injury no.2 could be caused by friction on a rough surface and both the injuries could be caused within 12 to 24 hours at the time of medical examination. On the same day, he prepared injury report i.e. Ex.Ka-9, Injury nos.1 & 2 of Munni Devi and injury no.1 of Vikram could be caused on 02.09.1987 at about 2.00 PM with Knife Ex.1. He has further stated that due to the injury no.1 of Munni Devi, there is a permanent scar on her nose. He has further stated that rest of the injuries mentioned in the injury reports Exs. Ka-8 & Ka-9 could be caused on 02.09.1987 at 2.00 PM in the day in scuffle. 15. After that the statements of appellants were recorded under Section 313 Cr.P.C, who denied the allegations made against them and in reply to the question no.14 accused-appellant Kanthu has stated that Vikram is brother of Munni. The wife of Vikram Was living at her parents’ house for one year. His father asked him to perform the marriage of his daughter with him. He did not agree. The father of Vikram Demanded she-buffalo which he did not give. He has also stated that the father of Vikram got annoyed and threatened that Munni would not live at his house. Munni and Beeja arrived at his house and thereafter Vikram arrived. Vikram also demanded his daughter for him to which he did not agree. On the day of occurrence, Beeja, Vikram and Munni became ready to go to their house with his consent and the consent of Bihari Lal. Munni took time for being ready. Vikram got annoyed and began to strike Danda at the house. Vikram also abused and threatened to kill Bihari. Bihari arrived at the door and Munni was also there. Munni had caught hold of Bihari from the back. Jyoti snatched the axe from Bihari. Vikram dragged Munni. During this scuffle, Vikram and Munni got injury with an axe or the tin of the door. He has also stated that he did not participate in this occurrence. Since he is an eye-witness of this occurrence, he has been falsely implicated. In reply to the question no.17, accused-appellant Bihari has also given the same version as stated by his father Kanthu. In defence they have not produced any oral evidence and in documentary evidence, they have filed Ex.Kha-1 which is the injury report of Bihari Lal, Ex. Kha-1 which is the copy of complaint filed by accused-appellant Bihari Lal against Vikram, Km. Beeja and Smt. Munni in the Court of C.J.M, Tehri Garhwal and Ex.Kha-3 which is the statement of Dr. J.N. Tripathi recorded in S.T. No.16 of 1989. 16. Sri Lokendra Dobhal, learned counsel for the appellants has submitted that no case is made out against the appellants under Sections 326/34 and 324/34 I.P.C. as well as 326 and 324 IPC on the basis of the evidence discussed above. 17. From the evidence discussed above, it is proved from the evidence of P.W.1 Smt. Munni, who has stated in her statement that Bihari Lal is her husband and Kanthu is her father-in-law. She was married to Bihari Lal 4-1/2 years before and after the marriage of 8- 9 months the behavior of her husband and her father- in-law was normal with her. After that Bihari Lal started to say that she (Munni Devi) had illicit relation with her brother-in-law (Jeeja) Parma and due to this reason Bihari Lal used to beat her and used to threat her. After that this fact was disclosed by her to her mother and brother. Then, her mother called Bihari Lal and made him understand and thereafter, she was sent along with her husband Bihari Lal. After that she came to her matrimonial house. Bihari Lal told her that why she had dixclosed that fact to her mother. Due to the fear she also took her younger sister Beeja along with her in matrimonial house. Bihari Lal told her that he would kill her and due to the reason she had complained to her mother against him. On 15 Gate Bhado her brother Vikaram came to her matrimonial house to take his sister Beeja and on 16 Gate Bhado, he remained there and on 17 Gate Bhado, when he was preparing to go his house along with his sister Beeja then she told him that she would also go along with him then her brother asked reason to go with him. Muni Devi told that Bihari Lal had threatened her to kill her that is why she wanted to go along with him. When she was preparing to go along with her brother and at that time his brother Vikram was outside the house, then accused- appellants Bihari Lal and Kanthu forbade her to go to the house of her mother and when she told them that she would go along with her brother, Bihari Lal came with knife and made her fall down on the earth. She and her sister cried and his brother reached on the place of occurrence. Meanwhile, his brother was caught hold by accused-appellant Kanthu and when Bihari Lal was trying to cause injury with knife on her neck then she saved herself from her hand and due to this reason she received injury in her hand. Bihari Lal also caused injury on her nose with knife due to this her mouth became disfigured and she received injury on her nose and cheek and when her brother tried to intervene, he was caught hold by Kanthu and Bihari Lal caused injuries on the neck and head of her brother Vikram with the knife due to this her brother received injuries on his neck and head. From there she and her brother Vikram ran away and reached at the Patwari Chawki Khandogi. She indentified the knife, Ex.-1 and stated that it is the same knife with which the injuries were caused to her and her brother. She also stated that report, Ex.Ka-1 was lodged by her in the Patwari Chawki. She has furter stated that in the above said incident the blood was stained on her shawl (chadar) and blouse and the shawl is Ex.2 and the blouse in Ex.3, which were given to the Patwari by her during the course of investigation. She has further stated that nearby her house, there is no other house of any person and she has further stated that the said incident took place about 2-3.00 P.M in the day. She has further stated that on the day when the incident took place they stayed that on that day when the incident took place they stayed in the Patwari Chawki Kandogi and the next day she went to Ajnisain Hospital, where she was medically examined. She has further stated that she had no illicit relation with her brother-in-law (Jeeja) Parma. statement of P.W.1 Smt. Munni is supported by the statement P.W.2 Vikram, who has stated that Smt. Munni Devi was married to accused-appellant Bihari Lal about 4-1/2 years before and accused-appellant Kanthu is father-in-law of Smt. Munni Devi. After 8 months of the marriage, Bihari Lal used to beat his sister and used