Pratap Singh (Since Deceased) and Others vs State of U.P. (Now Uttarakhand)

Prafulla C. Pant, J.—This appeal, preferred u/s 374 of Code of Criminal Procedure, 1973 (for short Cr.P.C.), is directed against the judgment and order dated 16.09.1999, passed by learned Sessions Judge, Uttarkashi, in Session Trial No. 2 of 1998, whereby said court has convicted accused/appellants Pratap Singh and Gulab Singh u/s 307 read with section 34 IPC. Each one of them has been sentenced to rigorous imprisonment for period of five years, and directed to pay fine of Rs. 2,000/-. Appeal of appellant no. 1 Pratap Singh stood abated after his death during the pendency of the appeal.

Heard Ms. Shiwali Joshi, Amicus Curiae for the appellant No. 2, and Mr. Vinod Sharma, Dy. Advocate General for the State and perused the lower court record.

Prosecution story, in brief, is that Hari Ram (P.W. 1) had purchased a plot from accused/appellant Pratap Singh for an amount of Rs. 9,000/- but the payment made short by Rs. 200/-. Later on Pratap Singh took back his plot. He returned entire money except Rs. 200/-. On 05.07.1997, Kashi Ram (P.W. 2) went to the house of accused/appellant Pratap Singh, and made demand of remaining Rs. 200/-. It has enraged accused/appellant Pratap Singh and his son Gulab Singh (accused/appellant no. 2). And accused/appellant Pratap Singh armed with carpenter''s axe (BASULA) and accused/appellant no. 2 Gulab Singh armed with LATHI came out, and assaulted Kashi Ram (P.W. 2) who suffered injuries. First Information Report (Ex. A1) of the incident was got lodged by P.W. 1 Hari Ram at the Police Station Kotwali Uttarkashi, on the basis of which crime no. 72 of 1997, was registered in respect of offence punishable u/s 307 IPC, against the two accused Pratap Singh and his son Gulab Singh. The injured was got medically examined on 07.07.1997, by P.W. 3 Dr. D.L. Shah, who prepared injury report. P.W. 5 Dr. Y.S. Rana (Radiologist) prepared x-ray report. The Investigating Officer after interrogating the witnesses submitted charge sheet against the two accused for their trial in respect of offences punishable u/s 307 and 325 IPC.

The Magistrate, on receipt of the charge sheet, after giving necessary copies to the accused as required u/s 207 Cr.P.C., appears to have committed the case to the court of Sessions for their trial. Learned Sessions Judge, Uttarkashi, on 03.03.1998, after hearing the parties framed charge of offence punishable u/s 307 IPC, against the two accused Pratap Singh and Gulab Singh who pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1 Hari Ram (informant), P.W. 2 Kashi Ram (injured), P.W. 3 Dr. D.L. Shah (who examined injuries on the person of the injured), P.W. 4 Dr. Y.S. Rana (Radiologist), P.W. 5 Jai Pal Singh, P.W. 6 Smt. Kumari, P.W. 7 Constable Rajendra Prasad and P.W. 8 Sub Inspector Ram Kishore Sharma (Investigating Officer). The oral and documentary evidence was put to the accused u/s 313 Cr.P.C., in reply to which they pleaded that they have been falsely implicated due to enmity. They further told that it was Kashi Ram who came in their house and molested Naraini Devi (wife of Pratap Singh). However, no evidence in defence was adduced. The trial court after hearing the parties found that prosecution has successfully proved charge of offence punishable u/s 307 read with section 34 IPC against both the accused Pratap Singh and his son Gulab Singh. Accordingly, both of them were convicted, and after hearing on sentence each one of them has been sentenced to rigorous imprisonment for a period of five years, and directed to pay fine of Rs. 2,000/-. Aggrieved by said judgment and order dated 10.09.1999, passed by the learned Sessions Judge, Uttarkashi, in Sessions Trial No. 2 of 1998, this appeal was filed by the convicts before Allahabad High Court from where it is received by transfer u/s 35 of U.P. Reorganization Act, 2000. (Central Act 29 of 2000), for its disposal.

Before further discussion this Court thinks it just and proper to mention the injuries found on the person of Kashi Ram (P.W. 2) recorded by P.W. 3 Dr. D.L. Shah on 07.07.1997. The same are being reproduced below:-

(i) 7.0 c.m. X 1.5 c.m. incised wound on frontal area of scalp 13.0 c.m. posteo-superin of nasion. Clotted blood is present, wound is bone deep. No fresh bleeding. It is transversely placed.

(ii) 5 c.m. X 1.0 c.m. clean cut incised wound on the scalp 5 c.m. posteriorly to injury no. 1. It is also bone deep, clotted blood is between the wound gap. It is transversely placed and curved cancavity anteriorly.

(iii) 5.0 c.m. X 1.0 c.m. X bone deep incised wound on the frontoparietal area on right side of scalp 3.0 c.m. posterior to injury no. 1. It is transversely placed.

(iv) 1.0 c.m. X 0.5 c.m. incised wound on the top of left ear pinna.

(v) complaint of loss of hearing by left ear, clotted blood present in ear, patient referred to ENT surgeon for expert opinion.

(vi) 2.0 c.m. X 2.0 c.m. lacerated wound on posterior aspect of left elbow, colour is blackish, it is tender.

(vii) 1.0 c.m. X 1.0 c.m. abraded contusion on posterior-medial aspect of right fore arm. 7.0 c.m. anterior to tip of olecranon. Colour is blackish.

(viii) 3.0 c.m. X 3.0 c.m. contusion on left scapular area. Colour is bluish.

The medical officer Dr. D.L. Shah (P.W. 3), in the injury report prepared by him has further observed that injury no. 1, 2, 3 and 4 were caused by sharp object. Rest of the injuries were caused by blunt object.

P.W. 1 Hari Ram is informant and father of the injured. He has stated that he purchased land from accused Pratap Singh for Rs. 9,000/- but after the deal cancelled the accused Pratap Singh repaid only Rs. 8,800/- as such 200/- were outstanding. According to this witness his son Kashi Ram (P.W. 2) had gone to Pratap Singh and demanded the money. The witness has further told that on 05.07.1997, at about 9 p.m., his son Kashi Ram went to the house of Pratap Singh. He (Pratap Singh) armed with carpenter axe (BASULA), and his son Gulab Singh (accused/appellant no. 2) armed with LATHI assaulted Kashi Ram who suffered injuries. The witness has further stated that on the next day it was raining as such he lodged FIR only on 07.07.1997.

P.W. 2 Kashi Ram is the star witness of this case who suffered injuries in the incident. He has also corroborated the prosecution story and told that accused/appellant Pratap Singh armed with carpenter axe, and accused/appellant no. 2 Gulab Singh armed with LATHI assaulted him. The witness further told that his injuries were got medically examined in District Hospital Uttarkashi.

Statement of P.W. 2 Kashi Ram read with injury report prepared by Dr. D.L. Shah shows that his statement is fully corroborated from medical evidence and his testimony cannot be disbelieved that he was assaulted by accused/appellants Pratap Singh and Gulab Singh.

P.W. 5 Jai Pal Singh and P.W. 6 Kumari have adduced the evidence on the point that blood stained clothes of Kashi Ram were given to the Investigating Officer of which recovery memo was prepared.

On reappreciating the evidence on record, this Court is in agreement with the trial court that the prosecution has successfully proved charge of offence punishable u/s 307 read with section 34 IPC, against accused/appellants Pratap Singh and Gulab Singh.

Ms. Shiwali Joshi, learned Amicus Curiae argued before this Court that even if the prosecution story is taken to be true it cannot be said that accused/appellant no. 2 Gulab Singh had common intention with accused/appellant Pratap Singh. On close scrutiny of evidence this Court finds that undoubtedly, role of Pratap Singh is much more serious as he caused injuries with carpenter''s axe on the head of the injured and as compared to his act, the act of accused/appellant No. 2 Gulab Singh is less serious as he has only caused simple injuries on non vital parts of injured but since both of them have participated in the crime together as much it cannot be said that the two had no common intention in committing the crime. Therefore, in the opinion of this Court so far as the conviction of accused/appellant no. 2 Gulab Singh u/s 307 read with section 34 is concerned, the same does not require interference. However, considering his role, sentence awarded to him can be reduced. He (Gulab Singh) is in jail. Therefore, the appeal is disposed of with the direction that on the point of conviction u/s 307 /34 IPC, of accused/appellant no. 2 Gulab Singh the appeal is dismissed. However, on the point of sentence it is partly allowed and the sentence is modified and the accused/appellant Gulab Singh is sentenced to the period already undergone without interfering with the amount of fine (i.e. Rs. 2,000/-) directed to be paid by the trial court. In case the appellant no. 2 Gulab Singh makes payment of fine of Rs. 2,000/- he shall be set at liberty if not wanted in connection with any other crime. In case he fails to pay the fine he shall undergo imprisonment for further period of two months from today i.e., apart from the period already undergone. Let the copy of this judgment be sent to the Superintendent of Jail concerned. Lower court record be sent back.