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2017 DIGILAW 596 (UTT)

Mohan Singh v. State of Uttarakhand

2017-11-09

SUDHANSHU DHULIA

body2017
JUDGMENT : This criminal jail appeal is received through the Superintendent, Sub-Jail, Haldwani, District Nainital, where the appellant has challenged the judgment and order dated 04.01.2014, passed by the 2nd Additional District and Sessions Judge, Nainital in Session Trial No. 30 of 2013 (State Vs. Mohan Singh), in which the accused/appellant has been convicted under Sections 307/450/506 of the Indian Penal Code (from hereinafter referred to as the “IPC”) and Section 4/25 of the Arms Act, and has been sentenced to undergo rigorous imprisonment for the offence under Section 307 of IPC for a period of seven years with a fine of Rs.7,000/- and six months additional simple imprisonment in case of default in payment of fine. For the offence under Section 450 of IPC, he has been sentenced to undergo three years of rigorous imprisonment with a fine of Rs.5,000/- and five months additional simple imprisonment in case of default in payment of fine. For the offence under Section 506 of IPC, he has been sentenced to undergo one year of simple imprisonment with a fine of Rs.2,000/- and two months additional simple imprisonment in case of default in payment of fine. The appellant has further been sentenced for the offence under Section 4/25 of the Arms Act for one year of simple imprisonment with a fine of Rs.1,000/- and one month additional simple imprisonment in case of default of payment of fine. All the sentences are directed to be run concurrently. The appellant is in jail. 2. As per the prosecution, the accused entered the house of the complainant Harish Chand Arya at about 12:45 P.M. in the afternoon when his 12 years old son Manoj Kumar Arya was alone in the house. It has also come in the evidence that the accused at the relevant time was carrying a knife and was under influence of liquor. The appellant dragged the son of the complainant inside the house and assaulted him many times with the knife he was carrying, as a result of which, this 12 years old child sustained as many as 18 injuries, mainly on his head but also on his palm, hands and other places. He lost his conscious and it was only when his mother reached the house that he could be taken to the hospital and given medical aid, as a result of which he survived. The incident is of 30.11.2012. He lost his conscious and it was only when his mother reached the house that he could be taken to the hospital and given medical aid, as a result of which he survived. The incident is of 30.11.2012. Since the child was being hospitalized and was in ICU of a private Nursing Home, namely, Krishna Nursing Home, the parents could not lodge the FIR immediately and understandably, therefore, the FIR was lodged next date i.e. on 01.12.2012 at 1500 hours in the afternoon under Sections 307/450 and 506 of IPC and thereafter in the investigation when it is known that the accused belongs to a higher caste and the victim belongs to the Scheduled Caste, offence under Section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act was also added along with Section 4/25 of the Arms Act. 3. The accused was arrested 10 days later on 11.12.2012 and on his pointing out, the weapon of offence which is a knife was recovered on the same day. Subsequently, after investigation, the police filed the charge-sheet and the matter was committed to the Session Court and thereafter charges were framed by the learned Additional District and Sessions Judge, Nainital on 21.03.2013 under Sections 307/450/506 of IPC and Section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act. 4. The prosecution in order to establish its case examined as many as 11 witnesses. The injured witness who is 12 years old boy i.e. Manoj kumar Arya was examined on 08.08.2013 as PW-5. In his examination-in-chief, he states that on the date of the incident, he was alone in his house as his mother and father had gone out for work. The accused who is known to the victim and whom he calls “uncle”, came to his house and started inquiring about his mother and thereafter about his father. The witness states that the accused was in a very aggressive mood and was also under influence of liquor. The victim further states that at that time he was playing outside the house but was forcibly dragged inside the house by the accused and the accused said that he would kill his mother and thereafter he took a knife from his pocket and started assaulting the witness with his knife. Before doing that he had closed the door of the house. Before doing that he had closed the door of the house. In order to save himself from the assault, the victim raised his hands in attempt to stop the accused, as a result of which, he has sustained knife wounds in his hands and palms as well. Due to the continuous assault, he fell unconscious and gained consciousness only in the hospital. A detail cross-examination was done by the defence but nothing worthwhile has come in the cross-examination which may doubt the worthiness of this injured witness. The victim was a student of Class VII at the time of the incident and at the time of his examination-in-chief and cross, he states that he has now passed the Class VII examination and he is now in Class VIII. 5. During cross-examination, this witness said that whatever statements he had given to the police were given as he was told by his parents. On this the learned counsel for the appellant has tried to take advantage and would argue that no reliance can be placed on the statements of the victim as he has admitted that the statements to the police were given by him on instructions of his parents. All the same, this argument cannot be accepted for the simple reason that these statements of the injured witness are the ones which were given to him before the police. It has not been said that the statements which were given in the court are being given on instructions of his parents. Moreover, another factor which needs to be considered here is that the child gave his statements to the police during investigation while he was hospitalized, and had barely gained conscious and required the assistance of his parents in giving statements to the police. Considering that the witness is a child, no mileage can be given to the appellant for this. Not only the statement of the injured witness itself is sufficient for conviction of the accused but it has further been corroborated by two other witnesses, to which we shall now refer. 6. One is PW-4 Kishori Lal who is the neighbour of the complainant and is a painter by profession and at the relevant time on 30.11.2012 between 11:45 A.M. to 1:00 P.M., he was in his house from where he could see that the accused had entered the house of the victim. 6. One is PW-4 Kishori Lal who is the neighbour of the complainant and is a painter by profession and at the relevant time on 30.11.2012 between 11:45 A.M. to 1:00 P.M., he was in his house from where he could see that the accused had entered the house of the victim. In his examination-in-chief, he states that he recognizes the accused and had seen him in the house of the complainant on several occasions in the past as well. He had not only seen the accused entering the house but later saw him running out of the house. He entered the house of the complainant when the mother of the victim Asha Devi raised an alarm after seeing her child Manoj Kumar Arya who was practically soaked with blood due to injuries. Thereafter, the injured was taken to Krishna Hospital on a tempo. This prosecution witness is also a witness for the recovery of a weapon used in the commission of the crime. The weapon as per the statement of the injured witness was dropped somewhere in the house by the accused. 7. Apart from PW-4, the second important witness is the mother of the injured victim Asha Devi who is PW-3 is also an important witness who states in her examination-in-chief that on the fateful day on 30.11.2012 at about 1:15 P.M. in the afternoon both she and her husband had gone out of the house for work, and their daughter was in the school and their son Manoj Kumar Arya was alone in the house. She states that she knows the accused for the last four to five years and her children use to address him as uncle. She also states that the accused had wrong intention with clear cut suggestion of certain sexual overtone and for this reason she stopped talking to the accused. She further states that he used to call her on various occasions and on that fateful day as well, he insisted that she should come to the house as he wanted to meet her. The appellant said that in case she will not come to the house, he would create disturbance. The witness, however, did not take this threat seriously for the reason that such threats were given by the accused in the past as well. The appellant said that in case she will not come to the house, he would create disturbance. The witness, however, did not take this threat seriously for the reason that such threats were given by the accused in the past as well. But in any case, when she reached her house at about 1:15 P.M. in the afternoon, she saw the accused running out of the house and his clothes were soaked with blood. It was in the kitchen that she saw her son lying unconscious on the floor. The son was thereafter taken in a tempo to a private nursing home, namely, Krishna Nursing Home. The witness, however, states that her son had sustained grievous injuries on his head and on his hands. Thereafter, she assigns motive for this incident and states that the accused had all intention to kill her son for the reason that he wanted to meet her and she was not interested in meeting the appellant. He had threatened her in the past as well that he would inflict harm upon her. She states that she belongs to a Scheduled Caste. She further states that now her son is not fully recovered as because of the injuries he had sustained on the fateful day, he still gets fits. In her cross-examination, she admitted that she works as a household maid and gets about Rs.3,500 per month. Earlier her family was residing at a place where the accused was also residing in the neighbour and consequently was known to her and her family. For the past few months, they shifted their residence but even in the new residence, the accused still used to visit there at this new place. This witness again has been cross-examined in detail but nothing worthwhile has come to shattered the testimony of this witness. 8. PW-2 is the father of the injured witness Harish Chandra Arya who states that he does work of a tailoring at various places and he is not keeping well. He is not an eye-witness to the incident but narrates before the court what has been told to him by Kishori Lal and by his wife. He is again cross-examined but nothing worthwhile has come. 9. He is not an eye-witness to the incident but narrates before the court what has been told to him by Kishori Lal and by his wife. He is again cross-examined but nothing worthwhile has come. 9. The medical report of the injured witness though from a private hospital but gives the description of as many as 18 injuries, out of which, there are three injuries on the head. One is 15 X 2 cm incise wound on the back side of the head, other is 5 X 2 cm injury on the right side of the head and other is 10 X 1 incise wound on the left side of the head. The left ear lobe is cut and again there is an incise wound of 1 X 0.5 cm below his left ear. Apart from this, there are injuries of 10 X 3 cm long incise wound in his neck. There are simple injuries in his hand and his palm and in his fingers. Eyes are blackened. In total there are 18 injuries. 10. The doctor who had attended the injured witness on the fateful day in the private nursing home is Dr. Rahul Singh who is examined as PW-6. He gives the description of 18 injuries which were on the body of the young boy called Manoj Arya @ Mannu and in his examination-in-chief he states that the nature of injuries were such that they were sufficient to take the life of Manoj @ Mannu. The victim was under his treatment in the hospital from 30.11.2012 to 15.12.2012. In his cross-examination, he states that when the injured had come to the hospital, he immediately informed the police and thereafter the police reached the hospital. Since the condition of the injured was critical and he was continuously bleeding what was most important at the relevant time was to give him proper medical attendance. On being questioned by the witness as to why he was not sent to the higher center, the reply given by the Doctor was that the injured was not sent to the higher center because the hospital itself has all the facilities of a higher center and therefore he was being medically treated in the hospital itself. On being questioned by the witness as to why he was not sent to the higher center, the reply given by the Doctor was that the injured was not sent to the higher center because the hospital itself has all the facilities of a higher center and therefore he was being medically treated in the hospital itself. Thereafter on the pointed query of the defence as to the injuries which were critical, he states that the injuries sustained by the injured on his neck and head were critical injuries. 11. Considering the nature of injuries, the recovery from the accused, the statements of the prosecution witnesses who have established that the accused had injured the victim, particularly there is a statement of the doctor and thereafter most importantly the statement of the injured witness which is absolutely crucial in such a case, leaves no room for doubt on the prosecution story. 12. Consequently, there is absolutely no reason to interfere with the finding of conviction. 13. Heard on the quantum of sentence as well. 14. After considering all the facts and circumstances of the case, the age of the victim and the nature of injuries, seven years of imprisonment is absolutely justified. No interference is required here as well. 15. The criminal jail appeal has no merit and the same is hereby dismissed. 16. Let the lower court record be sent back to the court concerned.