Research › Search › Judgment

Uttarakhand High Court · body

2022 DIGILAW 109 (UTT)

Kulwant Singh v. State of Uttarakhand

2022-05-12

RAVINDRA MAITHANI

body2022
JUDGMENT : RAVINDRA MAITHANI, J. 1. Instant appeal is preferred against the judgment and order dated 29.09.2005/03.10.2005, passed in Sessions Trial No. 105 of 1994, State vs. Kulwant Singh and Others, by the court of Additional Sessions Judge/2nd FTC, Nainital. By the impugned judgment and order, the appellants have been acquitted of the charge under Section 302 read with 34 and Section 504 read with 34 IPC. But, they have been convicted under Section 304 Part-II read with 34 IPC and sentenced to rigorous imprisonment for a period of five years with a fine of Rs. 5,000/- each. In default of payment of fine to undergo simple imprisonment for a further period of three months. 2. Facts briefly stated are as follows. On 11.11.1993, the appellants and others had borrowed a bicycle of Pritam Singh (“the informant”). When the bicycle was not returned, the informant alongwith his wife went to get their bicycle in the house of the appellants and others. The bicycle was not returned, instead the informant was abused and thrashed. Hearing the alarm, the son of the informant Gurmeet Singh came at the spot. He tried to rescue the informant. But, he was beaten up with lathi and danda by the appellants and others, due to which, Gurmeet Singh died at the spot. A report of the incident was lodged by the father of the deceased Pritam Singh, the informant on the same day at 4:10 P.M. Based on which, a case under Sections 302, 323, 504 IPC was registered. The inquest of the deceased was conducted on the same day. According to the witness to the inquest, the death occurred due to attack made by the appellants and others with lathi and danda. The post mortem of the deceased Gurmeet Singh was conducted on 12.11.1993. 3. After investigation, charge sheet under Sections 302, 323 and 504 IPC was submitted against the appellants and others. On 29.07.1995, charge under Section 302 read with 34 and Section 504 read with 34 IPC was framed, to which, the appellants and co-accused denied and claimed trial. 4. The appellants were examined under Section 313 of the Code of Criminal Procedure, 1973. They have stated that they did not commit any offence and they are innocent. 5. In order to prove the case, the prosecution examined in all five witnesses, namely, PW-1 Dr. 4. The appellants were examined under Section 313 of the Code of Criminal Procedure, 1973. They have stated that they did not commit any offence and they are innocent. 5. In order to prove the case, the prosecution examined in all five witnesses, namely, PW-1 Dr. Anil Chandra Shah, who conducted post-mortem of the deceased, PW-2 Pritam Singh, the informant, PW-3 Joginder Kaur, mother of the deceased, PW-4 Kashmir Singh and PW-5 Diwan Giri, the Investigating Officer (“IO”). 6. Co-accused Suren Singh died during the pendency of the trial and the case was abated against him. One of the co-accused Satnam Singh did not appear in the trial. Therefore, his case was separated and the trial proceeded against the appellants Kulwant Singh and Channa Singh. The appellant no. 2 Channa Singh died during the pendency of this appeal and by an order dated 14.09.2020 passed by this Court, the appeal abated against him. The appeal is now to be determined qua the appellant Kulwant Singh. 7. Heard learned counsel for the parties and perused the record. 8. Learned counsel for the appellant would submit that the prosecution has not been able to prove its case beyond reasonable doubt. PW-2 Pritam Singh is the informant, who is an interested witness. PW-3 Joginder Kaur is the mother of the deceased. She is also an interested witness. It is also argued that certain independent witnesses have not supported the prosecution case, therefore, the appellant deserve to be acquitted of the charge. 9. On the other hand, learned State counsel would submit that PW-2 Pritam Singh and PW-3 Joginder Kaur are the eyewitnesses of the incident. They have supported the prosecution case. PW-4 Kashmir Singh has also supported the prosecution case. The medical report supports the prosecution case. Therefore, prosecution has been able to make out a case against the appellant and the appeal deserves to be dismissed. 10. PW-1 Dr. Anil Chandra Shah is the doctor, who conducted the post-mortem of the deceased. He has proved the post-mortem report Ex. A1. He found the following ante mortem injuries on the person of the deceased, which are as hereunder: “1. Swelling 15 cm x 10 cm present on the back of right side Head and back of right side Neck. This swelling is about 4 cm from right ear. He has proved the post-mortem report Ex. A1. He found the following ante mortem injuries on the person of the deceased, which are as hereunder: “1. Swelling 15 cm x 10 cm present on the back of right side Head and back of right side Neck. This swelling is about 4 cm from right ear. On exposing this swelling, sub apponeuretic (scalp) of right side lower Head and subcutaneous tissue and muscles of right back of neck haematoma, there is fracture (lineal) on the fight side occipital region and membrane congested with large subdural Haematoma on the right occipital region and right parietal region, whole of right occipital region of brain and parietal region of brain showing inter cerebral haemorrhage. 2. Lacerated wound 2 cm x 1 cm scalp on the right back of head 10 cm. from right ear. 3. Abaraded contusion 3 cm x 3 cm right back of shoulder. 4. Abrasion 1 cm x ½ cm left side of forehead 1 cm from left eyebrow.” 11. According to PW-1 Dr. Anil Chandra Shah, the death was caused “by coma due to ante mortem injuries.” 12. PW-2 Pritam Singh is the informant. He is father of the deceased. According to him, on 11.11.1993, the appellant and others had borrowed his bicycle at 8:00 in the morning, assuring that they would return it after a while. When the bicycle was not returned, this witness along with his wife PW-3 Joginder Kaur visited the house of the appellant and others to get his bicycle back. But, his bicycle was not returned, instead he was abused and thrashed by the appellant and others by holding him from his hair. According to PW-2, the informant, at it his wife raised an alarm. Thereafter, his son Gurmeet Singh reached at the spot on his bicycle. According to this witness, the appellant and others attacked his son Gurmeet Singh with the lathi and danda. As a result of which, the deceased Gurmeet Singh sustained injuries on his head and died at the spot. 13. PW-3 Joginder Kaur has corroborated the statement of PW-2 Pritam Singh According to PW- 4 Kashmir Singh, after hearing the noise, he reached at the scene of occurrence. He found that the appellants alongwith others were present there. PW-2 Pritam singh was crying. He was being thrashed by pulling his hair by the appellant and others. 13. PW-3 Joginder Kaur has corroborated the statement of PW-2 Pritam Singh According to PW- 4 Kashmir Singh, after hearing the noise, he reached at the scene of occurrence. He found that the appellants alongwith others were present there. PW-2 Pritam singh was crying. He was being thrashed by pulling his hair by the appellant and others. According to PW-4 Kashmir Singh, at this juncture, the deceased Gurmeet Singh came to rescue his father PW-2 Pritam Singh, but the appellant and others attacked him also, due to which, he died at the spot. This witness is also a witness of the inquest report, which he proved as Ex A3. According to him, the police had also taken into custody the blood stained soil, grass and the plain soil from the place of occurrence. This witness has proved the document Ex. A4 with regard to taking into custody of blood stained soil, etc. 14. PW-5 Inspector Diwan Giri is the IO, who conducted the investigation. He has proved the chik FIR and the General Diary entries. According to him, during investigation, he prepared the inquest report and also recovered blood stained soil and the plain soil from the place of occurrence. He has proved the recovery memo Ex. A4. He had submitted the charge sheet against the appellant and others, which he has proved. 15. In his cross examination recorded on 26.04.2003, PW-4 Kashmir Singh, in paragraph 2, has stated that the deceased was not beaten up in his presence. When he reached at the spot, the appellants and the co-accused were running from the scene of occurrence. Based on this statement, on behalf of the appellant, it is argued that the prosecution has not been able to prove its case. But, this argument has no merits for acceptance. 16. PW-4 Kashmir Singh in his examination-in-chief has categorically proved the prosecution case. It is true that his cross examination was deferred on 05.01.2002 and thereafter, it was recorded on 26.04.2003, almost after 15 months from the date of recording his examination-in-chief. On 26.04.2003, when PW-4 Kashmir Singh was cross examined, he did not support the prosecution case as was supported by him in his examination-in-chief. He tried hard to twist his statements, but he could not do it. On 26.04.2003, when PW-4 Kashmir Singh was cross examined, he did not support the prosecution case as was supported by him in his examination-in-chief. He tried hard to twist his statements, but he could not do it. He told that when he reached at the place of incident, the appellant and the co-accused were running away from the place of occurrence. He also told that PW-2 Pritam Singh and PW-3 Joginder Kaur reached at the spot after he reached there. On 26.04.2003, the prosecution sought permission to cross examine PW-4 Kashmir Singh. He was declared hostile. In his cross examination, he has admitted that he had seen the appellant and the co-accused pulling the hair of PW-2 Pritam Singh. He has also admitted that thereafter the deceased Gurmeet Singh had reached at the spot. He has also admitted that on 05.01.2002, he gave the statement that the appellant and others were pulling the hair of PW-2 Pritam Singh. Thereafter, the deceased Gurmeet Singh asked the appellant and others to leave his father. Thereafter, the deceased Gurmeet Singh was attacked with lathi. 17. The statements of the witnesses cannot be read in isolation. It has to be read in totality. Reading of the statement of PW-4 Kashmir makes it clear that, in fact, he has supported the prosecution case in totality. He has stated that on the date of incident, when the appellant and the co-accused were attacking PW-2 Pritam Singh, his son Gurmeet Singh came to rescue him. But, thereafter, Gurmeet Singh was assaulted with lathi and danda, due to which he sustained injuries and died at the spot. 18. PW-2 Pritam Singh has been cross examined extensively. Nothing has been elicited in his cross examination, which may doubt the credibility of his statement. He has been categorical that, in fact, it was the appellant who caught hold the deceased Gurmeet Singh when he was hit with lathi by the co-accused. This is what PW-3 Joginder Kaur has also stated. Both these witnesses have stated that the deceased had come after hearing the alarm. PW-3 Joginder Kaur has stated that she had raised the alarm and perhaps thereafter her son had come. PW-3 Joginder Kaur was also cross examined extensively, but nothing has been elicited in her cross examination, which may create even slightest doubt in her evidence. 19. PW-4 Kashmir Singh is the witness of inquest. PW-3 Joginder Kaur has stated that she had raised the alarm and perhaps thereafter her son had come. PW-3 Joginder Kaur was also cross examined extensively, but nothing has been elicited in her cross examination, which may create even slightest doubt in her evidence. 19. PW-4 Kashmir Singh is the witness of inquest. The inquest report records that the death of Gurmeet Singh occurred due to attack on his head with lathi and danda, which was caused by the appellant and other co-accused. The post-mortem report supports the prosecution case. There have been injuries on the head and other parts of the body of the deceased Gurmeet Singh. There is no reason to disbelieve the statements of PW-2 Pritam Singh, PW-3 Joginder Kaur and PW-4 Kashmir Singh. Their statements have been supported by the statement of PW-1 Dr. Anil Chandra Shah. The site plan has also been proved by the IO. It also shows the place of occurrence. There is no doubt in the prosecution case. The court has rightly convicted the appellant under Section 304 Part-II IPC. 20. Learned counsel for the appellant would also submit that the incident took place in the year 1993. The appellant has been in jail for more than 18 months. He has been assigned the role of catching hold the deceased Gurmeet Singh. There is no minimum sentence prescribed under Section 304 IPC. Therefore, it is argued that the appellant may be sentenced to the period which he has already undergone. 21. While awarding sentence in a criminal case, various factors are taken into consideration, including the nature and gravity of offence, the offender, the victim, the consequences of the offence etc. 22. In the instant case before sentencing, the Court had heard the appellant on the question of sentence and observed that while considering the socio-economic condition of the appellant and other factors, five years imprisonment would serve the interest of justice. 23. In the instant case, the prosecution has proved that when the informant had gone to take his bicycle back, he was assaulted and when his son, the deceased Gurmeet Singh, came for his rescue, he was beaten to death. Nothing has been brought to the notice of the Court, which may make a ground to further reduce the sentence. 23. In the instant case, the prosecution has proved that when the informant had gone to take his bicycle back, he was assaulted and when his son, the deceased Gurmeet Singh, came for his rescue, he was beaten to death. Nothing has been brought to the notice of the Court, which may make a ground to further reduce the sentence. This Court is of the view that the court below has considered the attending factors before sentencing the appellant and reached at a conclusion, which does not warrant any interference. 24. In view of the foregoing discussion, this Court is of the view that, the prosecution has been able to prove the case beyond reasonable doubt. There is no merit in the appeal. Accordingly, the appeal deserves to be dismissed. 25. The appeal is dismissed. 26. The appellant Kulwant Singh is on bail. His bail is cancelled and sureties are discharged. Let the appellant be taken into custody forthwith to serve out the remaining sentence. 27. Let the copy of this judgment alongwith the Lower Court Record be sent to the court below for compliance.