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2012 DIGILAW 420 (UTT)

RISHI SONKAR v. STATE OF UTTARAKHAND

2012-07-25

PRAFULLA C.PANT

body2012
JUDGMENT Hon’ble Prafulla C. Pant, J. 1. All these three appeals are directed against judgment and order dated 22.09.2011, passed by Additional Sessions Judge/6th Fast Track Court, Dehradun, in Sessions Trial No. 188 of 2006, whereby said court has convicted accused/appellants Rishi Sonkar, Pappu, Sanjay and Rajkumar under Section 307 read with Section 34 of I.P.C., and sentenced each one of them to rigorous imprisonment for a period of ten years and directed to pay fine of Rs. 30,000/- 2. Heard learned counsel for the parties, and perused the lower court record. 3. Prosecution story, in brief, is that on 29.07.2006, at about 8.30 a.m. PW1 Amarnath was in his shop. The accused/appellants Rishi Sonkar, Pappu, Sanjay and Rajkumar armed with deadly weapons like GANDASA (a heavy sharp edged weapon), sword and SARIA (iron rod) came there. Accused/appellant Rishi Sonkar said to have assaulted Amarnath with GANDASA on his hands causing the grievous hurt. He (injured) was immediately taken to Doon Hospital, Dehradun. The First Information Report of the incident was got lodged on the very day by PW-2 Rajendra (brother of the injured) at Police Station Dalanwala. Where on the basis of said report (Ex. A1) Crime No. 226 of 2006 was registered, relating to offences punishable under Section 307, 323, 504 of I.P.C. PW-4 Sub Inspector Mahendra Singh Chauhan investigated the crime. The injuries of the injured were recorded by PW-3 Dr. Alok Tevatiya, who prepared the injury report (Ex. A2) on the very day (i.e. 29.07.2006) at 9.00 a.m. After interrogating the witnesses and inspecting the spot, the Investigation Officer, submitted charge sheet (Ex. A7) against all the four accused/appellants namely Rishi Sonkar, Pappu, Rajkumar and Sanjay for their trial in respect of offences punishable under Section 307, 323, 504 of I.P.C. 4. Chief Judicial Magistrate, on receipt of the charge sheet, and after giving necessary copies to the accused, as required under Section 207 of Cr.P.C., committed the case to the court of Sessions for trial. Learned Additional Sessions Judge, Fast Track Court, Dehradun, on 16.12.2008, after hearing the parties, framed charge, in respect of offences punishable under Section 307/34 and 323/34 of I.P.C., against all the four accused/appellants namely Rishi Sonkar, Pappu, Rajkumar and Sanjay, to which, accused pleaded not guilty and claimed to be tried. On this, prosecution got examined PW-1 Amarnath (injured), PW-2 Rajendra (complainant), PW-3 Dr. On this, prosecution got examined PW-1 Amarnath (injured), PW-2 Rajendra (complainant), PW-3 Dr. Alok Tevatiya (Medical Officer, who recorded injuries in the injury report), PW-4 Sub-Inspector Mahendra Singh Chauhan (who investigated the crime), PW-5 Dr. Guman Singh, Radiologist (who prepared X-Ray report). Oral and documentary evidence was put to the accused under Section 313 of Cr.P.C. In reply to which, they alleged the same to be false. They pleaded that they have been falsely implicated in the case. The court also got examined CW-1 Dr. Nishant Jain. But the defence counsel of the accused/appellants stated that they do not want to cross-examine him, as he was a formal witness. No evidence on defence was adduced. The trial court after hearing the parties found that all the four accused are guilty of charge of offence punishable under Section 307 read with Section 34 of I.P.C., for attempting to commit murder of Amarnath (PW1) with common intention. After hearing on sentence learned trial court sentenced each of them to imprisonment for a period of ten years and directed each of them to pay fine of Rs. 30,000/- 5. Before further discussion, this Court thinks it just and proper to mention the injuries suffered by Amarnath (PW1), which were recorded by PW3 Dr. Alok Tevatiya (in the injury report Ex A2). The same are being reproduced below:- 1. Incised wound 12cm X 3 cm, left forearm anterior aspect, bone deep 14 cm below the left elbow joint, all the muscles below the above wound are cut and the underlying bone is also coming out of the wound, fresh bleeding present, unable to move the fingers of the left hand 2. Incised wound 5 cm X 2 cm anterior aspect of the right forearm, muscle deep, 4 cm below the right elbow joint, fresh bleeding is present. 6. It is pertinent to mention here that the above mentioned injury report, which appears to have been caused by the sharp edged weapon are on the hands, and not on the vital part of the body. It is argued on behalf of the appellants that had there been any intention to kill the injured (Amarnath). The injuries would have been caused on the vital part of the body. It is argued on behalf of the appellants that had there been any intention to kill the injured (Amarnath). The injuries would have been caused on the vital part of the body. It is further argued that even if the prosecution case is taken to be true that it was accused Rishi Sonkar, who assaulted PW1 Amarnath with GANDASA (a heavy sharp edged weapon) to offence committed by him constitutes offence punishable under Section 326 of I.P.C. and not the one punishable under Section 307 of I.P.C. It has come in the statement of PW5 Dr. Guman Singh Rana that there were fractures found on the bones X-rayed. The report of the said Medical Officer (Ex A8) is on the record. Statements of the witnesses PW-1 Amarnath, PW2 Rajendra were read over before this Court and it is argued on behalf of the appellants that there is no evidence to show that other three accused Pappu, Sanjay and Rajkumar had prior meeting of mind for any common intention with the accused Rishi Sonkar to cause the injuries suffered by PW1 Amarnath. 7) As far as the accused Rishi Sonkar is concerned, it is proved on record, beyond reasonable doubt from the statement of PW1 Amarnath and PW-2 Rajendra read with the medical evidence on record, as mentioned above that he (Rishi Sonkar) caused injuries in the hands of Amarnath on 29.07.2006, with a deadly sharp edged weapon and injured suffered grievous injuries. That being so, the prosecution has proved the charge of offence punishable under Section 326 of I.P.C. as against the accused/appellant Rishi Sonkar. As far as the other accused/appellants Pappu, Rajkumar and Sanjay are concerned, they are entitled to benefit of reasonable doubt, as their common intention with accused Rishi Sonkar is not proved beyond reasonable doubt. 8. Accordingly, the Criminal Appeal No. 228 of 2011 and Criminal Appeal No. 230 of 2011 are allowed. The conviction and sentence recorded by the trial court against the accused/appellants Pappu, Rajkumar and Sanjay are set aside. They are acquitted of the charge. As far as the accused/appellant Rishi Sonkar is concerned, his appeal is partly allowed. His conviction and sentence recorded by the trial court under Section 307 of I.P.C., is set aside but he is convicted under Section 326 of I.P.C. and sentence to rigorous imprisonment for one year which he has under gone. They are acquitted of the charge. As far as the accused/appellant Rishi Sonkar is concerned, his appeal is partly allowed. His conviction and sentence recorded by the trial court under Section 307 of I.P.C., is set aside but he is convicted under Section 326 of I.P.C. and sentence to rigorous imprisonment for one year which he has under gone. Let a copy of this judgment be sent to the Superintendent of the jail concerned. Lower court record be sent back (Urgency Application No. 3156 of 2012, also stands disposed of).