CRLA/889/1990 of KAILASH CHANDRA Vs STATE

HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal no. 1236 of 2001

(Old no. 889 of 1990)

Kailash Chandra S/o Ayodhya Prasad, R/o Mohalla Bhawani Ganj, P.S. Bhawaniganj, P.S. Ramnagar, District Nainital.

------- Accused/appellant.

Versus

The State.

------- Respondent

Smt. Pushpa Joshi, Adv. & Sri Amit Kapri, learned counsel for the appellant. Sri M.A. Khan, learned Brief Holder for the State.

Dated: September 10, 2008

Hon’ble Dharam Veer, J.

This appeal preferred u/s 374(2) of The Code of Criminal Procedure, 1973 (hereinafter referred to as the Cr.P.C.) is directed against the judgment and order dated 30.03.1990 passed by learned Sessions Judge, Nainital in Sessions Trial no.51 of 1986 State vs. Kailash, whereby the learned Sessions Judge has convicted the accused/appellant Kailash for the offence punishable u/s 304 Part-II of The Indian Penal Code, 1860 (hereinafter referred to as the I.P.C.) and Section 324 I.P.C. and sentenced him to undergo rigorous imprisonment for period of 3 years’ for the offence punishable u/s 304 part II I.P.C. and one year’s rigorous imprisonment for the offence punishable u/s 324 I.P.C. It was also directed that both the sentences shall run concurrently.

2. I have heard Smt. Pushpa Joshi, learned counsel for the accused/appellant and Sri M.A. Khan, learned Brief Holder for the State and also perused the record of the Trial Court.

3. The prosecution case, in brief, is that on 24.10.1985 at 00:10 a.m., one Jaswant Singh has lodged First Information Report at Police Station Ramnagar with the averment that some quarrel had taken place at ‘Painth Parao’ near Sher Building at

about 12 O’ Clock in the night and Jagdish alias Jaggu was lying there unconscious in an injured condition. It was also averted that someone has caused the injuries to the Jagdish @ Jaggu with the weapon. This First Information Report is Ext. Ka-1. On the basis of this First Information Report case crime no. 231 u/s 307 I.P.C. was registered at Police Station Ramnager on 24.10.1985 at 00:10 a.m. The Chik First Information Report was prepared by Head Moharir Vikram Singh that Chik F.I.R. is Ext. Ka-6. Necessary entries were made in the G.D., carbon copy of the G.D. is Ext. Ka-7. The injured Jagdish @ Jaggu was medically examined by PW-3 Dr. J.C. Durgapal at Combined Hospital, Ramnagar and the injury report Ext. Ka-3 was prepared. The injured Jagdish @ Jaggu was medically examined by the Medical Officer on 24.10.1985 at 12:30 a.m. Later on the injured Jagdish @ Jaggu succumbed to the injuries sustained by him in the intervening night of 23/24.10.1985 at 12:55 a.m. and memo was sent by PW-3 Dr. J.C. Durgapal to the Station Officer, Police Station Ramnagar on 24.10.1985 that memo is Ext. Ka-4. In the above said incident another person, namely Sanjay Bhatt has also received injuries and he was also medically examined by PW-3 Dr. J.C. Durgapal on 24.10.1985 at 1:15 a.m., that injury report is Ext.Ka-5. The dead body of the deceased Jagdish @ Jaggu was taken in possession by the Investigating Officer PW-6 S.I. Ranvir Singh and he prepared the inquest report on 24.10.1985, that inquest report is Ext. Ka-8. He has also prepared the sketch of the dead body Ext. Ka-9. Police Form no. 13 Ext. Ka-10 and letter to the Medical Officer I/c L.D. Bhatt Hospital, Kashipur for conducting postmortem i.e. Ext. Ka-11. After that the dead body was sent for the postmortem and PW-7 Dr. Piyush Kumar Joshi has conducted the autopsy of the dead body of Jagdish @ Jaggu on 24.10.1985 at 3:20 p.m. and prepared the postmortem report, that postmortem report is Ext. Ka-18. The accused/appellant was arrested by the Investigating Officer on 26.10.1985 and when he was arrested, he disclosed to the police that he can recover theknife which was used in causing injuries to the deceased Jagdish @ Jaggu and Sanjay Bhatt and on his pointing out, the Investigating Officer has recovered knife from the bushes and recovery memo was prepared that recovery memo is Ext. Ka-2. During the course of investigation; the Investigating Officer has also recovered bloodstained clothes of the deceased Jagdish @ Jaggu and other articles and prepared FARD Ext. Ka-12. The I.O. has also inspected the place of occurrence and prepared site plan of the place of occurrence where injury was caused to the deceased that site-plan is Ext. Ka-14. He has also inspected the place where the injured was lying and from where he was taken to the hospital that site plan is Ext. Ka-13. The I.O. has also prepared site plan, from where on the pointing out of the accused/appellant knife was recovered from the bushes that site plan is Ext. Ka-16. During investigation the I.O. has also taken plain clay and bloodstained clay from the place of incident and FARD was prepared by him which is Ext. Ka-15. The I.O. has also sent the recovered articles for chemical examination and the report submitted by the Scientific Officer dated 27.05.1988 is Ext.Ka-21 on the record. The Investigating Officer has also recorded the statement of the witnesses, during the course of investigation and after completing investigation he submitted charge sheet against the accused/appellant u/s 302/324 I.P.C. that charge sheet is Ext. Ka-17.

4. It appears that after receiving the charge sheet, the learned Chief Judicial Magistrate, Nainital committed the case to the Court of Sessions for trial on 22.02.1986 after giving necessary copies to the accused/appellant as required u/s 207 Cr.P.C.,

5. On 18.08.1986, the learned Sessions Judge, Nainital after hearing the parties framed the charge of offence punishable u/s 302 I.P.C. against the accused /appellant Kailash. The charge was read over and explained to the accused who pleaded not

guilty and claimed to be tried. Again the charge was framed against the accused/appellant on 15.12.1988 u/s 324 I.P.C. The charge was read over and explained to the accused who pleaded not guilty and claimed to be tried.

6. In order to prove its case, the prosecution has examined PW-1 Virendra Singh Rawat-eyewitness of the case, PW-2 Anil Kumar Adhikari-eyewitness of the case, PW-3 Dr. J.C. Durgapal who has medically examined the injured Jagdish @ Jaggu and another injured Sanjay Bhatt, PW-4 Sanjay Bhatt- injured eyewitness, PW-5 S.I. Dinesh Chandra-who has commenced the investigation, PW-6 S.I. Ranvir Singh who after completion of the investigation has submitted charge sheet against the accused/appellant and PW-7 Dr. Piyush Kumar Joshi who has conducted autopsy on the dead body and prepared the postmortem report.

7. After that the oral and documentary evidence was put to the accused in the form of questions u/s 313 Cr.P.C. who, in reply, denied the allegations made against him, however he has stated that he has been falsely implicated in the case. He did not produce any oral and documentary evidence in his defence.

8. After appreciating all the evidence available on record and hearing the learned counsel for the parties, the learned Sessions Judge vide his judgment and order dated 30.03.1990 has convicted the accused/appellant Kailash for the offence punishable u/s 304 Part-II and 324 I.P.C. and sentenced him to undergo rigorous imprisonment for period of 3 years’ for the offence punishable u/s 304 part II I.P.C. and one year’s rigorous imprisonment for the offence punishable u/s 324 I.P.C. It was also directed that both the sentences shall run concurrently. Aggrieved with the conviction and sentence awarded to him, the accused/ appellant has preferred this appeal.

9. Before further discussions, it is pertinent to mention the injuries recorded by PW-3 Dr. J.C. Durgapal-Medical Officer Combined Hospital, Ramnagar on the person of Jagdish Chandra Adhikari on 24.10.1985 at 12:30 a.m., which is reproduced hereunder :-

“An incised wound 3cm. x 2cm. x 4cm. over the left middle chest close to nipple. Injury is 3cm. lateral to middle line. Profused bleeding from the wound. Injury is caused by some sharp weapon and fresh and kept under observation.”

10. PW-3 Dr. J.C. Durgapal-Medical Officer has stated that the injured was admitted in the hospital. When the injured was brought to the hospital he was unconscious and his blood pressure was not recordable; his pulse rate was 30 per minute; his condition was serious. At the time of medical examination he prepared the injury report i.e. Ext. Ka-3. The injured Jagdish @ Jaggu had died in the hospital in the same night at 12:55 a.m. and in this regard he has sent memo to the Station Officer, Ramnagar which is Ext. Ka-4. Dr. J.C. Drugapal has further deposed that on 24.10.1985 at 1:15 a.m. he also medically examined Sanjay Bhatt and found the following injuries on his body.

i. lacerated wound 2cm. x 1cm. x skin deep over left upper back close to inferior angle of scapula. Fresh bleeding; upper back close to inferior angle of scapula. Fresh bleeding;

ii. An incised wound 1cm. x 1cm. x skin deep over the left upper back 3cm. below to injury no.1. Fresh bleeding from the wound. upper back 3cm. below to injury no.1. Fresh bleeding from the wound.

Injuries were simple and injury no.1 was caused by hard substance, injury no.2 was caused by some sharp weapon. Duration was fresh. PW-3 Dr. J.C. Durgapal has further stated that after the medical examination, he has prepared the injury report of Sanjay Bhatt i.e. Ext. Ka-5.

11. The prosecution has further examined PW-7 Dr. Piyush Kumar Joshi, who has conducted autopsy on the dead body of Jagdish @ Jaggu on 24.10.1985 at 3:20 p.m. and prepared the postmortem report Ext. Ka-18. Dr. Piyush Kumar Joshi has recorded the following ante-mortem injuries on the dead body of Jagdish @ Jaggu:-

“Incised stitched wound transverse in direction on left side of chest 2” lateral to mid of sternum and 3” downward oblique medially to left nipple. Wound is stitched and on removing the stitches, the wound is 1” x ½” and 6” deep direction oblique medial.”

It was opined by the doctor PW-7 Piyush Kumar Joshi that the cause of death was due to shock and haemorrhage resulting from injury to vital organ heart.

12. The prosecution has also examined PW-4 Sanjay Bhatt, who is the injured eyewitness. He has stated that the deceased Jagdish Adhikari was known to him and the accused/appellant Kailash was also known to him. He has further averted that in the intervening night of 23/24.10.1985 at about 11:45 p.m. he alongwith Jagdish (deceased), Anil Adhikari, Naveen Padalia and Virendra Singh Rawat had gone to see “Baniyon Wali Ramlila” from where they have started to see the “Pahari Ramlila”. Near the State Bank the accused/appellant had set up tea handcart. They stopped there for having tea. They asked the accused/ appellant to prepare tea. The accused/appellant has given them tea in 5 cups. As the tea was not good, hence the accused/ appellant has asked them to throw the tea and on the asking of the accused/appellant he and his other companion had throw the tea. When they have again asked the accused/appellant to prepare tea with the fresh water then the accused/appellant had asked for payment of tea. When Jagdish told that they would not pay money for the tea, due to this reason the dispute arose which was converted into quarrel. Meanwhile, the accused/appellant had caused the injuries withknife to Jagdish @ Jaggu. Thereafter, Jagdish had run towards the Sher Building and the accused/appellant had also caused injuries to him with the knife. After some time when he came to know that Jagdish was lying near the Sher Building in an injured condition then he and his companion have also reached at the place, where they came to know that Jagdish was taken to hospital by the police. At about 1 O’ Clock when he reached at hospital, he came to know that Jagdish had died. He was also medically examined in the hospital by the Medical Officer. He has further stated that he had seen the incident in the mercury light. This witness was cross-examined by the defence counsel at length but nothing has come out in his evidence, which may create any doubt. The evidence of this witness on each and every aspect is reliable, believable and trustworthy. The evidence of this witness gets corroboration from the evidence of PW-1 Virendra Singh Rawat and PW-2 Anil Kumar Adhikari, who are also eyewitnesses of the said incident and also accompanied with the injured at the time of the said incident. PW-2 Anil Kumar Adhikari has also proved the recovery of the knife on the pointing out of the accused/appellant Kailash, which was made by the Investigating Officer on 26.10.1985.

13. PW-5 is S.I. Dinesh Chandra who has stated that on 24.10.1985 he was posted at the Police Station Ramnagar as Sub Inspector. The First Information Report about the said incident was lodged by Jaswant Singh in the Police Station at 12:10 a.m. which is Ext. Ka-1. Head Constable Vikram Singh has prepared the Chik F.I.R. and the entry was made by him in the G.D. The Chik Report is Ext. Ka-6 and the copy of the G.D. is Ext. Ka-7. Investigation of this case was entrusted to him, but after the death of Jagdish @ Jaggu, the case was converted u/s 302 I.P.C. and investigation of the case was transferred to S.O. Ranvir Singh. He has further stated that the accused/appellant Kailash was arrested by the S.O. on 26.10.1985 in his presence.

14. PW-6 is S.I. Ranvir Singh, who has stated that investigation of this case was entrusted primarily to S.I. Dinesh Chandra and after the case was converted into Section 302 I.P.C., the investigation was entrusted to him on 24.10.1985 and he started investigation. The inquest report was prepared under his supervision in the hospital, in the hand writing of S.I. Dinesh Chandra. The Photo Lash, Challan Lash and letter to the Medical Officer were also prepared at the same time. All these documents were signed by him these are Ext. Ka-8 to Ka-11. He has recovered the bloodstained clothes of the deceased Jagdish @ Jaggu and some other articles and FARD Ext. Ka-12 was prepared. He has also prepared the site plan on the pointing out of injured Sunjay Bhatt. He also prepared the site plan where the injured was lying and also of the place of occurrence where the deceased had received the injuries of the knife. These site plans are Ext. Ka-13 and Ka-14. He has also taken in possession the bloodstained clay and the plain clay from the place where the injured was lying and prepared the FARD Ext. Ka-15. The accused/appellant was arrested by him and when he disclosed him that he can recover the knife by which he has caused injuries to the deceased Jagdish @ Jaggu and Sanjay Bhatt then on the pointing out of the accused/appellant Kailash, he recovered the knife from the bushes and prepared FARD Ext. Ka-2. He also prepared map of the same place of recovery of the knife i.e. Ext. Ka-16. During the course of investigation, he has recorded the statement of the witnesses and after completing investigation he filed charge sheet. He sent the recovery articles for chemical examination in the Forensic Lab.

15. After that the oral and documentary evidence was put to the accused in the form of questions u/s 313 Cr.P.C. who, in reply, denied the allegations made against him and has stated that he has been falsely implicated in the case. He did not produce any oral and documentary evidence in his defence.

16.Smt. Pushpa Joshi, learned counsel for the accused/ appellant has argued that the prosecution has not proved its case against the accused/appellant for the offence punishable u/s 304 part-II and 324 I.P.C. beyond reasonable doubt. She has argued that though the three eye witnesses were examined by the prosecution, namely, PW-1 Virendra Singh Rawat, PW-2 Anil Kumar Adhikari as also the injured PW4 Sanjay Bhatt but the accused/appellant was not named in the First Information Report and these eyewitnesses have not lodged any First Information Report, naming the accused/ appellant as an accused/assailant. Neither these eyewitnesses have taken the injured (deceased) to the hospital nor they even extended their help in any manner. I do not find any substance in the argument advanced by the learned counsel for the accused/appellant due to the reason that the injured eyewitness Sanjay Bhatt has categorically stated that the accused/appellant had cause injuries to Jagdish @ Jaggu in the intervening night of 23/24.10.1985 at about 11:45 p.m. when they were going to see the “Pahari Ramlila” after seeing the “Baniyon Wali Ramlila” and there arose dispute at handcart of the accused/appellant which was converted in quarrel and in the said quarrel the accused/appellant has also caused injuries to him in the fateful night. Further Jagdish @ Jaggu (deceased) who was injured at that time was quickly examined in the hospital in the intervening night of 23/24.10.1985 at 12:30 a.m. and lateron he died in the hospital in the night at 12:55 a.m. due to the injuries caused by the accused/appellant. The injured eyewitness Sanjay Bhatt was also examined by the doctor PW-3 Dr. J.C. Durgapal on the same night at 1:15 a.m. The injured Sanjay Bhatt had seen the incident in the mercury light. The ocular version of this witness gets corroboration from the evidence of PW-1 Virendra Singh Rawat-eyewitness and PW-2 Anil Kimar Adhikari-another eyewitness. PW-2 Anil Kumar Adhikari has also proved discovery and recovery of the knife which was used as weapon in commission of the said crime.

The knife was recovered on the pointing out of the accused/appellant on 26.10.1985 when he has given statement to the Investigating Officer, after his arrest was made, that he can get recover the knife which was used as weapon in causing injuries to Jagdish @ Jaggu and Sanjay Bhatt. The said knife was recovered in the bushes on the pointing out of the accused/appellant, which also corroborates the prosecution story. Further the recovered articles by the police and the knife were sent for chemical examination in the Forensic Lab and the Scientific Officer has proved presence of the human blood in the articles i.e. Pant, Shirt, Undershirt, Sweater, Cement plaster and Knife sent for chemical examination, which also corroborates the prosecution story. Thus, prosecution has proved its case against the accused/appellant beyond reasonable doubt for the offence punishable u/s 304 part-II and 324 I.P.C.17. Learned counsel for the accused/appellant has further argued that there is contradiction which is apparent in the evidence of the injured witness PW-4 Sanjay Bhatt and in the evidence of PW-2 Anil Kumar Adhikari. She has stated that PW-2 Anil Kumar Adhikari states that the accused/appellant has attacked twice on Sanjay Bhatt, but PW-4 Sanjay Bhatt-the injured on the other hand has stated that the accused has attacked only once upon him. I do not find any substance in the argument of learned counsel for the accused/appellant due to the reason that even if there appears some minor contradiction in the evidence of the injured eyewitness and that of the evidence of PW-2 Anil Kumar Adhikari, due to the minor contradiction, the whole prosecution story cannot be discarded as the prosecution story is fully corroborated with the evidence of the injured eyewitness Sanjay Bhatt and the other eye witnesses PW-1 Virendra Singh Rawat and PW.2 Anil Kumar Adhikari and fully supported with the medical evidence and the

injury report, in these circumstances, due to the minor contradiction, the whole prosecution story cannot be discarded.

18. Lastly, the learned counsel for the accused/appellant has argued that the accused/appellant had confined in jail for about 18 months during the period of investigation and during the trial, therefore his sentence may be reduced to the period already undergone in this crime. But the trial court itself has awarded minimum sentence to the accused/appellant for period of three years’ R.I. u/s 304 part II I.P.C. and one year’s R.I. u/s 324 I.P.C. to the accused/appellant, therefore I do not find any substance in this argument advanced by the learned counsel for the accused/appellant. However, the period already undergone by the accused/appellant during investigation and during the trial in connection with this crime, shall be adjusted in the sentence awarded to him.

19. For the reasons recorded above, this Court is of the view that the learned Sessions Judge Nainital has rightly convicted the accused/ appellant as mentioned above. The judgment and order dated 30.03.1990 passed by the learned Sessions Judge, Nainital is justified and correct as per the discussions above, which does not warrant interference and the appeal preferred by the accused/appellant is liable to be dismissed.

20. Accordingly, the appeal preferred by the accused/appellant Kailash Chandra is hereby dismissed. The conviction and sentence awarded by the learned Sessions Judge, Nainital to the accused/appellant Kailash Chandra vide impugned judgment and order dated 30.03.1990, is hereby affirmed. However, the period already undergone by the accused/appellant during investigation and during the period of trial in connection with this crime, shall be adjusted in the sentence awarded to him, after verifying from the record. The accused/appellant is on bail; his bail is hereby cancelled.

21. Let copy of this judgment, along with the record of the Court below, be sent back to the Trial Court to make accused/appellant to serve out the sentence awarded to him.

(Dharam Veer, J.) 10.09.2008

NCM: