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2013 DIGILAW 166 (UTT)

State of Uttaranchal v. Jhandu

2013-04-02

PRAFULLA C.PANT

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JUDGMENT This appeal, preferred under section 378 of Code of Criminal Procedure, 1973 (for short Cr.P.C.), is directed against the judgment and order dated 06.01.2001, passed by learned Sessions Judge, Dehradun, in Sessions Trial No. 55 of 1996, whereby said court has acquitted the accused/respondent Jhandu from the charge of offence punishable under section 307 IPC. 2. Heard learned counsel for the State/appellant, and learned Amicus Curiae for the accused/respondent, and perused the lower court record. 3. Prosecution story, in brief, is that on 04.03.1995, P.W.1 Ravindra was sitting in his father's shop, in village Numberpur, when at about 6:30 p.m., accused Jhandu came and purchased some items from the shop. He (Jhandu) started leaving the shop without making payment for the articles purchased. On this, P.W.1 Ravindra demanded the money whereafter accused started quarreling with P.W.1 Ravindra. P.W.1 Ravindra thereafter came out, and stopped Jhandu leaving without payment. On this accused Jhandu took out knife, and inflicted a blow on person of Ravindra. The incident was witnessed by several persons including P.W.2 Padam Singh and P.W.3 Ranjeet Singh who rushed, and apprehended the accused then and there with blood stained knife. First information report (Ex.A3) of the incident was lodged by P.W.4 Nagendra Singh (father of the injured) on the very day (04.03.1995) at about 8:45 p.m. On the basis of said report crime No. 35 of 1995 was registered against accused Jhandu relating to offences punishable under sections 307 and 504 IPC at Police Station Sahaspur, District Dehradun. Injured Ravindra was taken to Herbertpur Christian Hospital. The injury report was prepared by Dr. John Kapthuama of said hospital disclosing that Ravindra had suffered 2cm long incised wound on the top of the right scapula. The medical officer has also opined that injury was dangerous to life. Investigation of the crime was entrusted to P.W.6 S.I. Munshi Singh Tomar who interrogated the witnesses, inspected the spot, took the blood stained clothes in his possession and submitted charge-sheet (Ex. A11) against accused Jhandu for his trial in respect of offences punishable under sections 307 and 504 IPC. 4. The Judicial Magistrate, I, Dehradun, on receipt of the charge-sheet, after giving necessary copies to the accused as required under section 207 Cr.P.C., committed the case to the court of sessions for trial. A11) against accused Jhandu for his trial in respect of offences punishable under sections 307 and 504 IPC. 4. The Judicial Magistrate, I, Dehradun, on receipt of the charge-sheet, after giving necessary copies to the accused as required under section 207 Cr.P.C., committed the case to the court of sessions for trial. Learned Sessions Judge, Dehradun on 06.07.1996, after hearing the parties framed charge of offence punishable under section 307 IPC only, against Jhandu to which he pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W.1 Ravindra, P.W.2 Padam Singh (eye-witness), P.W.3 Ranjeet Singh (another eye-witness), P.W.4 Nagendra Singh (informant and father of the injured), P.W.5 Dr. Sam Thomas (who proved injury report) and P.W.6 Sub-Inspector Munshi Singh Tomar (who investigated the crime). 5. Oral and documentary evidence was put to the accused under section 313 Cr.P.C., in reply to which the accused admitted that in the shop of the complainant Nagendra Singh his son Ravindra used to sit. He further admitted that he was known to him but as to the rest of the evidence accused pleaded that the evidence adduced agaist him is false. He admitted at the end of his statement under section 313 Cr.P.C., that there was simple scuffle between him and Ravindra, whereafter he pushed Ravindra, who fell on a kiosk, a nail of which stuck to him. No evidence in defence was adduced. The trial court, after hearing the parties acquitted the accused from the charge of offence punishable under section 307 Cr.P.C., holding that the prosecution story is not proved beyond reasonable doubt. Aggrieved by said judgment and order dated 06.01.2001, passed by learned Sessions Judge, Dehradun, in Sessions Trial No. 55 of 1996, this appeal is preferred by the State against acquittal of the accused. 6. Leave was granted by this Court on 03.02.2002, and notices were issued to the accused/respondent. Lower court record was summoned. Notices were served on the accused but no one turned up on his behalf in the Court. As such, Mr. Neeraj Upreti, Advocate, was appointed Amicus Curiae to assist the Court on behalf of the accused/respondent. 7. Before further discussions this Court thinks it just and proper to mention the injury found by Dr. John Kapthuama of Herbertpur Christian Hospital, who prepared injury report (Ex. A5) relating to injury suffered by Ravindra (P.W.1). As such, Mr. Neeraj Upreti, Advocate, was appointed Amicus Curiae to assist the Court on behalf of the accused/respondent. 7. Before further discussions this Court thinks it just and proper to mention the injury found by Dr. John Kapthuama of Herbertpur Christian Hospital, who prepared injury report (Ex. A5) relating to injury suffered by Ravindra (P.W.1). The said injury report was proved by P.W.5 Dr. Sam Thomas. It discloses that only one injury was suffered by Ravindra which reads as under:- "2cm long incised wound 2cm lateral to the tip of the right scapula." As to the nature of injury, the injury report (Ex. A5) discloses that the same was dangerous to life. 8. The star prosecution witness of the case is P.W.1 Ravindra who suffered injury in the incident. He has stated that in the shop situated in village Numberpur belonging to his family, he, his father and mother used to sit in the shop. On 04.03.1995, he (P.W.1) was sitting in the shop when at about 6:30 p.m., accused Jhandu came there and purchased some items. The witness further states that witnesses Padam Singh (P.W.2) and Ranjeet Singh (P.W.3) were already there in the shop. According to P.W.1 Ravindra accused Jhandu started leaving the shop with the articles purchased without making payment and when payment was demanded, accused Jhandu started quarreling. According to P.W.1 Ravindra while quarreling was on, he came out of the shop on which accused Jhandu took out a knife and stabbed him. The witness (P.W.1) further told that he with the help of witnesses Padam Singh (P.W.2) and Ranjeet Singh (P.W.3) apprehended the accused on the spot. P.W.1 Ravindra further stated that he was taken to Herbertpur Christian Hospital where his injuries were examined. 9. The statement of the above injured eye-witness P.W.1 Ravindra is fully corroborated from the statements of P.W.2 Padam Singh and P.W.3 Ranjeet Singh (both eye-witnesses). The injury report (Ex. A3) prepared in Herbertpur Christian Hospital which is proved by P.W.5 Dr. Sam Thomas further corroborates the testimony of the injured eye- witness (P.W.1 Ravindra). 10. On careful re-appreciation of the entire evidence on record, this Court finds that the charge of offence punishable under section 307 IPC, against accused Jhandu is fully proved on the record. A3) prepared in Herbertpur Christian Hospital which is proved by P.W.5 Dr. Sam Thomas further corroborates the testimony of the injured eye- witness (P.W.1 Ravindra). 10. On careful re-appreciation of the entire evidence on record, this Court finds that the charge of offence punishable under section 307 IPC, against accused Jhandu is fully proved on the record. The trial court has completely ignored the fact that the accused was apprehended at the spot by the witnesses along with knife used in the crime. On going through the impugned order, this Court finds that the trial court has taken shelter of flimsy grounds to doubt the testimony of the injured eye-witness and other eye-witnesses of the fact. 11. On behalf of the accused/respondent defending the impugned order, it is argued that depth of the injury suffered by the injured is not mentioned in the injury report as such the medical opinion that the injury was dangerous to life cannot be accepted. Having considered the medical evidence on record, in the opinion of this Court had the deadly weapon not been used by the accused, and had the injury not inflicted on the vital part of the body, it could have been said that the want of bringing depth of injury on record, is suggestive that accused might not have intention to kill the injured. But in the present case accused has attacked to the injured with a deadly weapon on the vital part, and he stopped only after he was apprehended by the eye-witnesses at the spot, as such it cannot be said that merely for the reason that depth of the injury is not proved on the record, the charge is not made out. 12. It is also contended by learned Amicus Curiae that P.W.2 Padam Singh stated that incident had taken place inside the shop while another witness has stated that the incident took place outside the spot as such the testimony given by the eye-witnesses is doubtful. 12. It is also contended by learned Amicus Curiae that P.W.2 Padam Singh stated that incident had taken place inside the shop while another witness has stated that the incident took place outside the spot as such the testimony given by the eye-witnesses is doubtful. However, on careful scrutiny of the statements of the witnesses, this Court finds that infact there is no contradiction in the statements of the witnesses as after the accused purchased the articles from the shop of P.W.1 Ravindra, and started leaving the shop without making payment, quarrel picked up whereafter P.W.1 Ravindra came out of his shop, and demanded money from the accused on which he (accused) inflicted knife blow on the person of P.W.1 Ravindra. As such, part of the incident has taken place inside the shop, and a part thereof has taken place outside the shop. 13. It is also pleaded by learned Amicus Curiae that accused appears to be juvenile. However, there is no such plea taken before the trial court, nor there is any certificate etc., on the record in support of the plea taken by learned Amicus Curiae, as such the bald plea cannot be accepted by this Court. 14. For the reasons as discussed above, as the charge of offence punishable under section 307 IPC is fully proved on the record against accused Jhandu, and the finding of the trial court that prosecution failed to prove charge, is against the weight of the evidence on record, as such this appeal deserves to be allowed. 15. Accordingly the appeal is allowed. Impugned judgment and order dated 06.01.2001, passed by learned Sessions Judge, Dehradun, in Sessions Trial No. 55 of 1996 is hereby set aside. Accused/respondent Jhandu is convicted under section 307 IPC. Considering the facts and circumstances of the case, and after hearing the parties accused/respondent Jhandu is sentenced to rigorous imprisonment for a period of five years, and he is further directed to pay fine of Rs.1,000/-, in default of payment of which he shall undergo rigorous imprisonment for a period of three months. The lower court record be sent back to make accused/respondent Jhandu (S/o Chaman) serve out the sentence awarded by this Court. Appeal allowed.