PRAKASH BIRBAL Vs. STATE OF UTTARAKHAND

JUDGEMENT

(1.) THIS criminal appeal, preferred by the appellant u/s374(2) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.) is directed against the judgment and order dated 20.11.1995 passed by Additional Sessions Judge, Roorkee in Sessions Trial No.74 of 1993, State Vs. Prakash & another, whereby the learned Addl. Sessions Judge has convicted the accused/appellant Deepak under Section 308 of The Indian Penal Code, 1860 (hereinafter to be referred as the IPC) and sentenced him to undergo rigorous imprisonment for a period of three years. Accused/appellant Prakash was convicted u/s308/34 IPC and was also sentenced to three years R.I. 2.1 have heard Sri S.C. Tyagi, learned counsel for the appellants as well as Sri M.A. Khan, Brief Holder for the State and perused the entire material available on record. 3. Chief Judicial Magistrate, Haridwar vide his report dated 19.08.2009 has reported that the appellant no.1 has died. Hence, the appeal filed by appellant no.1 stands abated. 4. In brief, the prosecution story is that PW1 Sudhir Kumar lodged the FIR at P.S. Gangnahar, Roorkee with the averments that on 2.10.1991 he along with his father Daulat Ram and younger brother Sunil was in his shop. Prakash, Raju and Khem Chand were fighting with each other in front of his shop. His father tried to intervene in between the fight. On this, Prakash caught hold his father and peepak assaulted him with the wood which he was having in his hand. His father raised alarm. On hearing the noise, his brother Sunil, his uncle Babu Ram and he saved his father. The said incident took place at 02:30 P.M. He then got admitted his father at Dr. Rajendra Pal's hospital. With the same averments, Sudhir Kumar (PW1) lodged the FIR at P.S. Gangnahar, Roorkee on 2.10.1991 at 8:10 PM. That FIR is Ext.Ka-1. On the basis of this FIR, Chik FIR of the case was prepared by Constable Clerk Ram Pal Singh, i.e. Ext.Ka-3 and the case was registered against the accused persons u/s326 IPC. Necessary entries were also made in the G.D., carbon copy of which is Ext.Ka-4. The investigation of this case was entrusted to Sub Inspector Rambir Singh (PW4). Injured Daulat Ram was medically examined by Dr. Rajendra Pal (PW3) on 2.10.1991, who prepared his injury report i.e. Ext.Ka-2. On the basis of the medical report, the case which initially was registered u/s326 IPC against the accused persons was then converted into Section 308 IPC. Entry to this effect was also made in the G.D.,carbon copy of which is Ext.Ka-6. During the course of investigation, the I.O. recorded the statements of the witnesses and took the bloodstained shirt and undershirt of the injured into possession and prepared the recovery memo Ext.Ka-7. The I.O. also inspected the place of occurrence and prepared the site- plan i.e. Ext.Ka-5. On completion of the investigation, the I.O. filed the charge sheet against the accused/appellants Prakash (now dead) and Deepak. That charge sheet is Ext.Ka-8. 5. After receiving the charge sheet, learned 1st Addl. Munsif Magistrate, Roorkee committed the case to the court of Sessions on 18.2.1993, after giving necessary copies to the accused/appellants as provided u/s207,Cr.P.C. 6. On 6.8.1993,1st Assistant Sessions Judge, Roorkee framed the charge against the accused/appellants Deepak and Prakash u/s308 IPC and 308/34 IPC, respectively. The charge was read over and explained to the accused persons, to which they pleaded not guilty and claimed to be tried. 7. To prove its case, the prosecution examined PW1 Sudhir Kumar, complainant of the case; PW2 Babu Ram, eyewitness; PW3 Dr. Rajendra Pal, Medical Officer, who medically examined the injured Daulat Ram and prepared the injury repot Ext.Ka-2 and PW4 S.I. Rambir Singh, Investigating Officer of the case. 8. Thereafter the statement of the accused persons were recorded u/s313Cr.P.C. The oral and documentary evidence were put to each of them in question form, who have denied the allegations made against them. However, they have not produced any oral or documentary evidence in their defence. 9. After appreciating the evidence on record and upon hearing learned counsel for the parties, learned Additional Sessions Judge, Roorkee vide his judgment and order dated 20.11.1995 has convicted and sentenced the appellants/accused as mentioned above. Feeling aggrieved by the aforesaid judgment and order dated 20.11.1995, the appellants/accused have preferred the present appeal. 10. Before further discussion, it is pertinent to mention that injured Daulat Ram was medically examined on 2.10.1991 at 3 P.M. by P.W.3 Dr. Rajendra Pal and his injury report was also prepared i.e. Ex.Ka-2. The injuries found on the person of Daulat Ram are reproduced as under: -

(2.) FRESH bleeding from left nostril, patient vomited also fresh blood. BP - 70/50 mmHg, cold extremities, patient delirious, left eye apparently have been lost. Nature of injury grievous. Duration is fresh. Caused by blunt weapon. 11. PW3 Dr. Rajendra Pal was examined by the prosecution in order to prove the aforesaid injury report. He has proved the injury report Ext.Ka-2. He has stated that the injuries were grievous in nature and were possible to come by some blunt weapon like wood. He further stated that the injured remained admit in his nursing home from 2.10.1991 to 7.10.1991. He further stated that the injuries could possibly be caused on 2.10.1991 at 02:30 P.M. and were dangerous to life. 12. To further prove its case, the prosecution examined PW1 Sudhir Kumar, who has stated that on the date of incident at 02:30 P.M. he, his father and brother Sunil were working in the shop. In front of his shop, Khemchand, Prakash, Raju and Deepak were fighting with each other. His father tried to intervene in between the fight. Then Prakash caught hold his father and asked his son Deepak to kill him. Thereafter Deepak carrying wood in his hand came there and gave a blow of wood on his father's head. His father raised alarm. On hearing the noise, his uncle Babu Ram reached at the spot. Then he and his uncle got admitted his father in Dr. Pal's Nursing Home. Due to above injury, his father lost his left eye and have also received injuries on his head, stomach and back. He further stated that the report of the above-said incident was lodged by him at Police Station Gangnahar. He has proved the report Ext.Ka- 1. This witness was cross examined at length by the defence counsel but nothing has come out from his evidence, which may create any doubt in his evidence. The evidence of this witness is reliable, believable and inspires confidence. 13. PW2 Babu Ram is the eyewitness of the case. He has corroborated the statement of PW1 Sudhir Kumar. 14. PW4 S.I. Rambir Singh is the Investigating Officer of the case. He has stated that on 2.10.1991 he was posted at Police Station Gangnahar, Roorkee. On that day, Sudhir Kumar had lodged the report in the police station. Chik FIR Ext.Ka-3 of the case was prepared by C/c Ram Pal Singh. Entries in the G.D. were also made by him, carbon copy of which is Ext.Ka-4. During the course of investigation, he recorded the statements of the witnesses and prepared the site-plan Ext.Ka-5 of the place of occurrence. On 4.10.1991 he recorded the statement of Dr. Rajendra Pal and thereafter the case was converted into Section 308 IPC. Entry to this effect was also made in the G.D., carbon copy of which is Ext.Ka-6. He also took in his possession bloodstained shirt and undershirt of the injured and prepared the recovery memo Ext.Ka-7. On completion of the investigation, he filed the charge sheet Ext.Ka-8 against the accused persons u/s308 IPC. 15. Thereafter the statement of the accused persons were recorded u/s313Cr.P.C. The oral and documentary evidence were put to each of them in question form, who have denied the allegations made against them. However, they have not produced any oral or documentary evidence in their defence. 16. Sri S.C. Tyagi, learned counsel for the appellant/appellant has argued that the prosecution has not proved the case against the appellant/accused beyond reasonable doubt. I do not find force in the argument of learned counsel for the appellant/accused. From the evidence discussed above and also the facts and circumstances narrated above, it is proved beyond reasonable doubt by the prosecution that on the date of incident i.e. 2.10.1991 at 02:30 P.M. Sudhir Kumar along with his father Daulat Ram and brother Sunil were working in the shop. In front of their shop, Khemchand, Raju, Prakash and Deepak were fighting with each other. Daulat Ram- tried to intervene in between the fight. Then Prakash caught hold him and asked his son Deepak (appellant) to kill him. Thereafter Deepak carrying wood in his hand came there and gave a blow of wood on his head. Due to above injury, Daulat Ram lost his left eye and had also received injuries on his head, stomach and back. It reveals from Paper No.l6Kha-3 that after the said incident the injured eyewitness of the case, Daulat Ram, had gone somewhere out from the village. Therefore, he was not examined in the trial court. But the facts regarding the said incident get fully corroborated from the statements of PW1 Sudhir Kumar and PW2 Babu Ram. Besides this, the facts further get corroboration by the injury report Ext.Ka-2 as well as the medical evidence of PW3 Dr. Rajendra Pal, who had clearly stated that the injuries were grievous in nature and were caused by some blunt weapon like wood. The injuries were dangerous to life. Further, the FIR of the case is also prompt and there is no delay in lodging the FIR. Accordingly, on the basis of the evidence discussed above, the case is well proved against the appellant u/s308 IPC and finding recorded by the trial court in convicting the appellant u/s308 of IPC on the basis of the evidence discussed above is justified and as per law. I am also in full agreement with the findings recorded by the trial court for the conviction of the appellant u/s308 IPC. 17. Next point argued by learned counsel for the appellant/accused is that the appellant Deepak was juvenile on the date of occurrence. In support of this fact, he has filed copy of School Leaving Certificate, High School Mark sheet and Scholar's Register & Transfer Certificate Form in which his date of birth has been mentioned as 13.12.1982. On the basis of these documents, learned counsel for the appellant submitted that the said incident took place on 2.10.1991 and his date of birth as per the above-said documents is 13.12.1982 and accordingly on the date of incident, the appellant was 8 years 9 months and 19 days of age. 18. Learned counsel for the appellant further argued that the provisions of The Juvenile Justice Act, 1986 (hereinafter to be referred as the Act) were applicable in the said area and also in the said district where the crime was committed. Under the said Act, "Juvenile" has been defined u/s2(h) which reads as under: - 2(h) "juvenile" means a boy who has not attained the age of sixteen years or a girl who has not attained the age of eighteen years. 19. Learned counsel for the appellant further argued that since the present appellant was under the age of 16 years on the date of incident, hence he was entitled for the benefit of the Act. He has relied on the judgment of Hon'ble Apex Court in the case of "Bhoop Ram Vs. State of U.P." reported in 1989 SCC(Cri) 486. He has referred Para 8 of the said judgment which reads as under: -