Pratap Singh @ Pikki vs The State Of Uttarakhand

1. The appellant(accused no. 1) along with three others tried for an offence under Sections 147, 148, 302/149 and 323/149 of the Indian Penal Code(hereinafter being referred to as “IPC”). The appellant and one Vikas Kirola were convicted under Section 304 Part II/34 IPC and sentenced to undergo rigorous imprisonment Digitally signed by VISHAL ANAND for 10 years and other two persons Manoj Singh Rautela and Date: 2019.07.12 16:28:01 IST Reason: 1 Deepak Pathak were acquitted vide judgment dated 12 th January, 1998.

2. Both the unsuccessful convicted persons preferred criminal appeal against the judgment dated 12th January, 1998 before the High Court of Uttarakhand. In the case of appellant, the High Court observed that according to his marksheet of Secondary School Certificate Examination 1993, his date of birth is 13 th June, 1977 while the incident was of 18th June, 1995 and he was not a juvenile on the date of the incident. At the same time, Vikas Kirola, whose date of birth was 26th December, 1977 on the basis of his secondary school certificate was given the benefit of Juvenile in view of Section 2(k) of the Juvenile Justice (Care and Protection of Children) Act, 2000 and their conviction under Section 304 Part II/34 IPC came to be confirmed vide impugned judgment of the High Court dated 9 th November, 2010 which has been challenged by the appellant in the instant appeal.

3. The facts in brief which are essential to be stated for adjudication of this appeal are that complainant Mukesh Sah(PW­1) lodged FIR stating interalia that on 18 th June, 1995, 2 his cousin brother Rajesh Sah had gone to see Jagjit Singh night at Mallital, Nainital. At about 10.30 PM, Manoj Joshi, friend of Rajesh Sah, had come and informed that some boys had committed Marpit with his brother(Rajesh Sah) near the flat and his situation was serious and was admitted to B.D. Pandey Hospital. On this information, the complainant immediately rushed to B.D. Pandey Hospital and saw that his brother Rajesh was in operation theatre. When his brother was brought out, he was unconscious and after some time at about 12.25 AM, he succumbed to his injuries. He also came to know that in the Marpit committed with his brother, Harshwardhan Verma, Sanjay Goswami and Deepak Verma also sustained injuries. He further came to know that in Jagjit Singh night, his brother(Rajesh Sah) along with Harshvardhan Verma, Deepak Verma, Pankaj Verma, Sanjay Goswami and Tanmay Tiwari @ Fatty were there and on their next row, some girls were sitting to whom some boys were passing indecent remarks. Complainant’s brother Rajesh stopped those boys not to do so, on which one of those boys slapped Rajesh and gone from there by threatening to see him. When Jagjit Singh night was going to end and the people were coming out of it, Rajesh Sah along with his friends 3 proceeded towards his house and near the fountain at about 10.00 PM in the night, 5­6 boys assaulted Rajesh by lathis­ dandas. After sustaining injuries, Rajesh fell down on the earth but even then, those persons continued beating him. Some of the companions of Rajesh, namely, Harshvardhan Verma, Deepak Verma and others tried to intervene, who too sustained injuries. Injured Rajesh was then immediately brought to B.D. Pandey Hospital. The persons accompanying Rajesh informed the names of accused as Pratap Singh Bisht, Vikas Kirola, one Pathak and also about 2­3 other boys, however, their names were not known.

1. Traumatic Swelling present over left tempora – parieto – occpital region size 15 cm X 12 cm. On cutting clotted blood present in the sub­cut tissues.

2. Stitched wound size 5 cm long on left side parietal region 3 cm away from midline. On cutting clotted blood present in the subcutaneous tissues.

5. Lacerated wound size 7 cm X 1 cm X bone deep present over left parieto­ occipital region 10 cm above and posterior to upper brain of left pinna of ear. Underlying bone is fractural, Dark coloured blood is coming out on removing the guaze packing. On cutting injury no. 3, 4 and 5, clotted blood present in the subcutaneous tissues. Injury no. 2 to 5 are present over injury no. 1. All the injuries above­mentioned are dressed and bandaged.

7. Abrasion 1.5 cm X .5 cm present obliquely downwards on the right side face 1 cm below outer aspect of right eye. On cutting clotted blood is present in the subcutaneous tissues.

8. Contusion 6 cm X 4 cm on the dorsum of left hand with a lacerated wound 2.5 cm X 1 cm X muscle deep just above 2 nd knuckle and two abrasions of .5 cm X .5 cm each on the lateral aspect of the contusion. On cutting clotted blood is present in the subcutaneous tissues.

10. Abraded contusion 6 cm X 4 cm on the front of left side of chest 6 cm below left nipple at 5 o’ clock position. On cutting clotted blood present in the subcutaneous tissues.

7. The prosecution of the case examined PW­1 Mukesh Sah(complainant), PW­2 Sanjay Goswami (injured eyewitness), PW ­3 Harshvardhan Verma (injured eyewitness), PW ­4 Dr. J.P. Bhatt, Radiologist who conducted the post mortem, PW ­5 Dr. Rajiv Kumar, who examined the injuries on the body of deceased and that of injured witness and PW ­6 SI Prem Singh, IO of the case.

14. After careful consideration of the evidence of PW­3 Harshvardhan Verma who himself is an injured eye­witness and made a statement in his deposition that he was one of them who accompanied the deceased Rajesh Sah, were sitting on the chairs and looking the programme of Jagjit Singh night. On the next row, some girls were sitting, to whom some boys were passing indecent remarks. Deceased Rajesh Sah stopped them not to do so and in course of time, some altercation and after that a scuffle took place. The police persons intervened and stopped the scuffle at about 9.30 PM. After Rajesh Sah and his friends saw the program and moved towards the fountain and on the way, the road leading towards the main road, some boys met them, out of whom, Pratap Singh Bisht, Deepak Pathak, Manoj Rautela and Vikas Kirola were identified by him. When Rajesh Sah(deceased) proceeded to talk to those persons, the accused assaulted Rajesh Sah with dandas and due to the injuries sustained by him, he fell down, however, even then the accused persons including appellant(A­1) continued to beat him. He tried to intervene but he too was beaten and was injured by the accused persons. On seeing the accumulation of crowd, the appellant(A­1) ran away. After that, Rajesh Sah was brought to the hospital, however, he 10 became unconscious before reaching the hospital and blood was oozing from his head and succumbed to injuries at 12.30 AM in the night.

15. PW­2 Sanjay Goswami who too was injured eye­witness of the incident supported the case of the prosecution and examination­in­chief was recorded on 27th March, 1997. On that day, the cross was deferred on the application of the accused but later on 30th March, 1997 unfortunately he died and it was not possible for the prosecution to produce him for cross­ examination.

16. The presence of PW­3 Harshvardhan Verma cannot be doubted. The medical evidence supports the prosecution story including his injury report, supported by the post­mortem report of deceased (Rajesh Sah) furnished by PW­4 Dr. J.P. Bhatt. We are of the considered view that the evidence of PW­3 Harshvardhan Verma is reliable, believable and inspire implicit confidence as well as the corroboration of statement of PW­2 Sanjay Goswami.

28. Considering the overall facts of the case in totality with the nature of crime, the tender age of the appellant at the time of offence, subsequent conduct and other ancillary circumstances, including that no untoward incident has been reported against him and the mitigating circumstances, it is appropriate that in the obtaining factual score, the sentence of rigorous imprisonment be altered to the period already undergone for offence under Section 304 Part II/34 IPC, to meet the ends of justice.

29. The appeal is allowed to the extent indicated above.

30. Pending application(s), if any, stand disposed of.