Raj Kumar @ Raju v. State of U.P. (now Uttarakhand)

appellant, and learned counsel for the State and perused the lower court record.

#3. Prosecution story in brief is that on

27.08.1994, complainant P.W.1 Ramanand was in his shop in Satupuli Bazar, when at about 8:30 p.m., accused/ appellant Rajkumar @ Raju came to his shop. The two were talking with each other, and after sometime the complainant told the accused that he should leave for his house as he has to close the shop. On this, accused Rajkumar @ Raju got annoyed, picked up weight of two kg, and started giving blow after blow on the head of the shopkeeper (P.W.1 Ramanand). When the complainant shouted for help, the accused Rajkumar @ Raju dragged the injured out from the shop. On hearing noise P.W.2 3 Meherban Singh, P.W.3 Mamta, P.W.4 Balvir Singh and P.W.5 Radha Vallabh and some more people came out and saw the incident. The accused Rajkumar @ Raju was apprehended by the witnesses at the spot. Meanwhile the patrol police also reached there. First Information Report (Ex. A1) was lodged on the very day (27.08.1994) at about 11:15 p.m., with Police Station Satpuli. On the basis of the said report crime no. 76 of 1994, was registered against accused/appellant Rajkumar @ Raju relating to offences punishable under section 452, 308 IPC. The investigation was taken up by Sub Inspector S.N. Sharma. The injuries on the person of the injured Ramanand were examined by P.W.6 Dr. S.P. Singh who recorded as many as seven injuries found on the person of the injured Ramanand on 27.08.1994, at 11:30 p.m., and prepared injury report (Ex. A2). The Radiologist found that there was fracture in the skull of the Ramanand. The report of the Radiologist is (Ex. A6) on the record. The Investigating Officer, after interrogating the witnesses, and inspected the spot submitted charge sheet (Ex. A5) against 4 the accused Rajkumar @ Raju for his trial in respect of charge of offences punishable under section 308 and 325 IPC.

#4. The Magistrate, on receipt of the charge sheet, after giving necessary copies to the accused as required under section 207 Cr.P.C., appears to have committed the case to the court of Sessions for trial. On 26.07.1995, learned Sessions Judge, Pauri Garhwal, Camp Lansdown framed charge of offences punishable under section 452 and 308 part II IPC, against the accused Rajkumar @ Raju who pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W.1 Ramanand (injured/informant), P.W.2 Meherban Singh (eye witness), P.W.3 Ms. Mamta (eye witness), P.W.4 Balvir Singh (eye witness), P.W.5 Radha Vallabh (eye witness) and P.W.6 Dr. S.P. Singh (the medical officer who recorded injuries on the person of the injured Ramanand). Formal proof of the documents appears to have been dispensed with by defence counsel as such formal witnesses were not got examined. 5 However, the court got examined C.W.1 Constable Prakash Sharma and C.W.2 Dr. D.K. Jain (Radiologist).

#5. Oral and documentary evidence was put to the accused under section 313 Cr.P.C., in reply to which the accused pleaded that the evidence adduced against him is false and he has been falsely implicated due to enmity. However, no evidence in defence was adduced. The trial court, after hearing the parties found that prosecution has successfully proved charge of offences punishable under section 452 and 308 part II IPC, against accused Rajkumar @ Raju, and convicted him accordingly. After hearing on sentence, accused Rajkumar @ Raju was sentenced to rigorous imprisonment for a period of four years under section 308 part II IPC, and rigorous imprisonment for a period of two years , and directed to pay fine of ` 1,000/- under section 452 IPC. Aggrieved by said judgment and order dated 29.03.2000, passed by Sessions Judge, Pauri Garhwal, in Sessions Trial No. 41 of 1995, this appeal was filed by the convict before 6 Allahabad High Court from where it is received by transfer under section 35 of U.P. Reorganization Act, 2000 (Central Act 29 of 2000) for its disposal.

#6. Before further discussion this Court thinks it just and proper to mention the the injuries recorded by P.W.6 Dr. S.P. Singh in the medical injury report (Ex. A2) prepared on

27.08.1994, at 11:30 p.m, which were found on the person of Ramanand (P.W.1). The injuries recorded by the medical officer are being reproduced below from the medical injury report (Ex. A2):- (i) An incised looking wound measuring 5cmX0.3cmX0.1cm horizontally on above forehead. (ii) An incised looking wound on scalp measuring 7cm X 0.5cm X 0.1cm vertical (longitudinal) and the wound is continuing left side upto 4cm. (iii) An incised looking wound measuring 3.5cm X 0.5cm X 0.1cm obliquely on middle of scalp. 7 (iv) An incised looking wound measuring 3.5cm X0.2cmX0.1cm right side of scalp at 5cm distance from right ear. (v) A lacerated wound measuring 3.5cm X 1cm. The wound is obliquely and is 9cm above from right ear. (vi) A lacerated wound measuring 3.5cm X 1cm on scalp found at 7cm above from left ear. (vii) A lacerated wound measuring 6cm X 1cm on scalp 11 cm above from occipital protuberance bone. The edges of the wound found irregular. Blood was oozing. Though, said medical officer after observing the injury apparently termed them as simple but evidence of P.W.2 Dr. D.K.Jain read with the medical report (Ex. A6) shows that there was fracture on the parietal bone of the skull above occipital protuberance. (Said report is Ex. A6 alongwith x-ray film on the record).

#7. Considering the above mentioned 8 injuries and their nature, and the fact that there was fracture on the skull, it is clearly established on record that an attempt was made to commit culpable homicide not amounting to murder of Ramanand. Now this Court has to examine whether accused Rajkumar @ Raju committed said offence by injuring him (Ramanand) on his head with weight of two kg, as suggested by prosecution or not.

#8. P.W.1 Ramanand is the injured eye witness of the incident. He has narrated the prosecution story stating that on 27.08.1994, he was sitting in his shop at 8:30 p.m., in Satupuli Bazar, when accused Rajkumar @ Raju came and sat there. He (Rajkumar) started talking with Ramanand whereafter the witness (Ramanand) asked the accused to leave the place. At this the accused started leaving the shop but turned back from the door, picked up a weight of two kg, from the shop and gave blow after blow on the head of the witness Ramanand. P.W.1 has further proved first information report (Ex. A1) lodged by him. He further told that he was 9 medically examined. The witness has further told that he shouted for help at the time of the incident whereafter many witnesses, and police reached at the spot and apprehended the accused Rajkumar @ Raju.

#9. P.W.2 Meherban Singh, P.W.3 Mamta, P.W.4 Balvir Singh and P.W.5 Radha Vallabh have corroborated the statement of P.W.1 Ramanand and stated that they heard noise on the day of the incident, and when they came out they saw accused Rajkumar @ Raju dragging bleeding Ramanand (P.W.1). They further corroborated the fact that the accused was apprehended at the spot.

#10. On reappreciation of the evidence on record, this Court finds that the statement of P.W.1 Ramanand (injured) that the accused Rajkumar @ Raju gave blow after blow on his head with a weight of two kg, not only gets corroborated from the statements of four eye witnesses mentioned above, but also from the testimony of P.W. 6 Dr. S.P. Singh read with 10 injury report (Ex. A2) and report (Ex. A6) prepared by radiologist (C.W.2 Dr. D.K.Jain). From the statements of the two medical officer it is also clear that the injury suffered on the head could be fatal. In the circumstances, this Court finds that the trial court has rightly held that accused Rajkumar @ Raju has attempted to commit culpable homicide not amounting to murder of P.W.1 Ramanand after entering in his shop.

#11. Learned Amicus Curiae pointed out that in the injury report (Ex. A2) it is mentioned that the nature of the injury was simple as such it cannot be said that the same could have been fatal. On scrutiny of the evidence on record, this Court finds that the said report was prepared by P.W.6 Dr. S.P. Singh when there was no x-ray report from the radiologist. It is only after C.W.2 Dr. D.K. Jain gave x-ray report of the skull bone it came to light that there was fracture in the parietal bone of the injured.

#12. Ms. Gaura Devi Deo, learned Amicus 11 Curiae, further submitted that P.W.2 Meherban Singh, P.W.3 Mamta, P.W.4 Balvir Singh and P.W.5 Radha Vallabh cannot be said to be eye witnesses as they have not seen the accused actually assaulting on the head of the Ramanand. I have gone through the statements of these witnesses. Their testimony is natural that on hearing noise they came out and saw that the accused was dragging the injured from his shop, and they further stated that the injured was bleeding. As to the rest, in what manner the injured was assaulted P.W. 1 Ramanand himself has adduced the evidence, and there was no one else inside the shop who could have caused injury in the manner suffered by the injured.

#13. As far as offence punishable under section 452 IPC is concerned, in the opinion of this Court, from the evidence on record, said offence is not made out as there is no evidence that the accused Rajkumar @ Raju committed house trespass after making preparation for hurt, assault etc. From the evidence of P.W.1 Ramanand it is evident that accused Rajkumar @ 12 Raju has entered in the shop without any preparation. It is only inside the shop quarrel appears to have taken place, and accused picked up weight of two kg, and gave blows on the head of the injured (shopkeeper Ramanand). Therefore, the conviction recorded by the trial court under section 452 IPC is liable to be set aside.

#14. On the point of sentence under section 308 part II IPC, learned Amicus Curiae pleaded for leniency. Considering the facts and circumstances of the case, number of injuries and their nature, this Court is of the view that reducing the sentence awarded by the trial court under section 308 part II IPC, to rigorous imprisonment for a period of three years would meet the ends of justice.

#15. Accordingly, this appeal is disposed of with the observation that the conviction recorded by the trial court under section 308 part II IPC, against accused/appellant Rajkumar @ Raju is hereby affirmed. However, the sentence 13 awarded by the trial court on said count is reduced to the rigorous imprisonment for a period of three years. The conviction and sentence recorded by the trial court under section 452 IPC, is hereby set aside. Accused/appellant Rajkumar @ Raju is on bail. His bail is cancelled. He shall surrender before the court concerned to serve out remaining part of the sentence as modified by this Court. Lower court record be sent back. Parul (Prafulla C. Pant, J.) 25.09.2012