Mukesh Vs. State of Uttaranchal (Now State of Uttarakhand) - Court Judgment

SooperKanoon Citationsooperkanoon.com/1116064
CourtUttaranchal High Court
Decided OnDec-12-2012
Case NumberCriminal Appeal No. 41 of 2001
JudgePRAFULLA C. PANT
AppellantMukesh
RespondentState of Uttaranchal (Now State of Uttarakhand)
Excerpt:
(1) this appeal, preferred under section 374 of code of criminal procedure, 1973, (for short cr.p.c), is directed against the judgment and order dated 09.02.2001, passed by learned iiird additional sessions judge, hardwar, in sessions trial no. 73 of 1996, whereby said court has convicted the accused/appellant mukesh under section 307 of i.p.c, and sentenced him to rigorous imprisonment for a period of five years and directed to pay fine of ` 1000/-. (2) heard learned amicus curiae for the appellant, and learned a.g.a, for the state, and perused the lower court record. (3) prosecution story, in brief, is that on 24.07.1995, at about 7.00 am pw2 govind mohan was going to open his tea stall kiosk in mohalla ratan ka purva within the limits of kotwali roorkee, when accused mukesh came there, and gave a knife blow on his chest. pw1 ranno devi, who was also present at the place of incident immediately took her injured son to hospital for medical aid. thereafter pw1 ranno devi went to police station roorkee and lodged first information report (ex-a1) at about 5.10 pm. she alleged that since the injured had made report to the police against the accused mukesh (who used to molest the girls) he (accused) attempted to kill the injured (pw2 govind mohan). on the basis of the first information report, crime no. 148 of 1995, was registered against the accused mukesh in respect of offences punishable under section 307, 504 and 506 of i.p.c. crime was investigated by sub inspector manju singh. she interrogated the witnesses, and inspected the place of incident. meanwhile, pw2 govind mohan underwent surgery in civil hospital roorkee, and he remained there for about a fort night. his injuries were recorded by dr. vinod kumar tyagi (since deceased) at the time of admission of pw2 in the hospital, who prepared injury report (ex-a8). on completion of investigation charge sheet (ex-a7) was filed against accused mukesh for his trial in respect of offences punishable under section 307, 504 and 506 of i.p.c. (4) additional chief judicial magistrate, roorkee, on receipt of charge sheet (ex-a7) after giving necessary copies to the accused as required under section 207 of cr.p.c, committed the case to the court of sessions for trial. the trial court after hearing the parties framed charge of offence punishable under section 307 of i.p.c., to which the accused mukesh pleaded not guilty and claimed to be tried. on this prosecution got examined pw1 ranno devi (informant and eye witness), pw2 govind mohan (injured eye witness), pw3 sub inspector manju singh (investigating officer) and pw4 ajay kumar (an employee of civil hospital roorkee, who proved report of medical officer who prepared injury report). the oral and documentary evidence was put to the accused under section 313 of cr.p.c., in reply to which accused pleaded that false evidence has been adduced against him. he also stated that govind mohan (pw2) and his colleague used to molest his sister mamta regarding which a complaint was made by the accused. in defence dw1 ghasita ram (father of the accused mukesh) was got examined who stated that govind mohan (pw2) used to molest his daughter mamta in a drunken state and regarding said fact the complaint (ex-b1) was sent by him (dw1). the trial court after hearing the parties found that charge of attempt to commit murder of govind mohan as against accused mukesh is proved and convicted him accordingly under section 307 of i.p.c. after hearing on sentence, the convict was sentenced to rigorous imprisonment for a period of five years and directed to pay fine of ` 1000/- in default of payment to which the convict was directed to undergo further six months imprisonment. aggrieved by said judgment and order dated 09.02.2001, passed by iiird additional sessions judge, hardwar, this appeal was filed by the convict. (5) before further discussion, this court thinks it just and proper to mention the injuries mentioned in the injury report (ex-a2) by medical officer dr. vinod kumar tyagi (since deceased) on 24.07.1995, in civil hospital roorkee. the injury suffered by pw2 govind mohan recorded in injury report (ex- a8) are reproduced below:- 1. an incised wound 4.5 cm x1 cm x peritoneum deep present on the left side of epigestrin region of abdomen omentum is coming out of the wound, soft red clot present. 2. an incised wound 1.5 cm x 0.3 cm muscle deep on the back of right index finger, soft red clot present. the medical officer as mentioned in the injury report opined that the injuries were caused by sharp object. in respect of injury no.1 it is mentioned that the same was kept under observation and case referred to the surgeon. injury no.2 was reported to be simple, duration fresh. (6) learned amicus curiae submitted that the above report relating to pw2 govind mohan cannot be read in evidence as medical officer was not examined by the prosecution. however, this court is unable to accept the contention of learned amicus curiae for the reason that pw4 ajay kumar an employee of civil hospital roorkee, who has proved the report, has stated that dr. vinod kumar tyagi, who prepared the report had died. as such, there was no question of examination of the medical officer who had already died before his evidence could be recorded. (7) pw2 govind mohan has stated on oath that 24.07.1995, at 7.00 am he was going to open his tea stall kiosk when accused mukesh s/o ghasita ram armed with the knife came there and assaulted him. the witness further told that his mother took him to hospital. pw2 govind mohan further stated that he was assaulted by accused mukesh in an attempt to kill him. statement of this witness is fully corroborated from the medical injury report (ex-a8) already discussed above. (8) the statement of pw2 govind mohan (injured eyewitness) is fully further corroborated from the statement of pw1 smt. ranno devi, who witnessed the incident and to took her son govind mohan to civil hospital roorkee, for medical treatment. she also proved the first information report (ex-a1) lodged by her at police station kotwali roorkee. the statement of the injured eyewitness and that of the informant are natural and trustworthy. (9) learned amicus curiae argued that since govind mohan (pw2) used to molest sister of the accused mukesh, and dw1 ghasita ram (father of the accused) had complained to the police, due to that enmity the accused has been falsely implicated in the case. had there been no knife injury on the vital part of govind mohan (pw2) what is argued on behalf of the accused could have been accepted. considering the nature of injuries suffered by the witness (pw2) it is hard to believe that he would spare the real culprits and implicate the accused mukesh due to enmity. had there been many accused named then also it could have been argued that with the real culprit, other persons with whom complainant had enmity are implicated, but in the present case there is sole accused mukesh who said to have assaulted with the knife. in such circumstances, it could not be accepted that accused mukesh has been falsely implicated. (10) for the reasons as discussed above, so far as the conviction is recorded by the trail court in respect of offence punishable under section 307 of i.p.c., against the accused mukesh is concerned, this court finds no illegality. to that extent appeal is liable to be dismissed. however, considering the facts and circumstance of the case, and the fact as narrated by dw1 ghasita ram that his daughter mamta was molested by pw2 govind mohan regarding which complaint was made against him to police, this court is of the view that sentencing the accused mukesh to rigorous imprisonment for a period of three years would meet the ends of justice. (11) accordingly the appeal is disposed of affirming the conviction of accused/appellant mukesh under section 307 of i.p.c, but the sentence awarded by the trial court is reduced to rigorous imprisonment for a period of three years without disturbing the direction to pay fine of ` 1000/-. with this modification in the sentence the appeal stands disposed of. the accused/appellant mukesh s/o ghasita ram is on bail. his bail is cancelled. he shall surrender before the court concerned to serve out the remaining part of the sentence as modified by this court. lower court record be sent back.
Judgment:

(1) This appeal, preferred under section 374 of Code of Criminal Procedure, 1973, (for short Cr.P.C), is directed against the judgment and order dated 09.02.2001, passed by Learned IIIrd Additional Sessions Judge, Hardwar, in Sessions Trial No. 73 of 1996, whereby said court has convicted the accused/appellant Mukesh under section 307 of I.P.C, and sentenced him to rigorous imprisonment for a period of five years and directed to pay fine of ` 1000/-.

(2) Heard learned Amicus Curiae for the appellant, and learned A.G.A, for the State, and perused the lower court record.

(3) Prosecution story, in brief, is that on 24.07.1995, at about 7.00 am PW2 Govind Mohan was going to open his tea stall kiosk in Mohalla Ratan Ka Purva within the limits of Kotwali Roorkee, when accused Mukesh came there, and gave a knife blow on his chest. PW1 Ranno Devi, who was also present at the place of incident immediately took her injured son to hospital for medical aid. Thereafter PW1 Ranno Devi went to Police Station Roorkee and lodged First Information Report (Ex-A1) at about 5.10 pm. She alleged that since the injured had made report to the police against the accused Mukesh (who used to molest the girls) he (accused) attempted to kill the injured (PW2 Govind Mohan). On the basis of the First Information Report, Crime No. 148 of 1995, was registered against the accused Mukesh in respect of offences punishable under section 307, 504 and 506 of I.P.C. Crime was investigated by Sub Inspector Manju Singh. She interrogated the witnesses, and inspected the place of incident. Meanwhile, PW2 Govind Mohan underwent surgery in Civil Hospital Roorkee, and he remained there for about a fort night. His injuries were recorded by Dr. Vinod Kumar Tyagi (since deceased) at the time of admission of PW2 in the Hospital, who prepared injury report (Ex-A8). On completion of investigation charge sheet (Ex-A7) was filed against accused Mukesh for his trial in respect of offences punishable under section 307, 504 and 506 of I.P.C.

(4) Additional Chief Judicial Magistrate, Roorkee, on receipt of charge sheet (Ex-A7) after giving necessary copies to the accused as required under section 207 of Cr.P.C, committed the case to the court of Sessions for trial. The trial court after hearing the parties framed charge of offence punishable under section 307 of I.P.C., to which the accused Mukesh pleaded not guilty and claimed to be tried. On this prosecution got examined PW1 Ranno Devi (informant and eye witness), PW2 Govind Mohan (injured eye witness), PW3 Sub Inspector Manju Singh (Investigating Officer) and PW4 Ajay Kumar (an employee of Civil Hospital Roorkee, who proved report of Medical Officer who prepared injury report). The oral and documentary evidence was put to the accused under section 313 of Cr.P.C., in reply to which accused pleaded that false evidence has been adduced against him. He also stated that Govind Mohan (PW2) and his colleague used to molest his sister Mamta regarding which a complaint was made by the accused. In defence DW1 Ghasita Ram (father of the accused Mukesh) was got examined who stated that Govind Mohan (PW2) used to molest his daughter Mamta in a drunken state and regarding said fact the complaint (Ex-B1) was sent by him (DW1). The trial court after hearing the parties found that charge of attempt to commit murder of Govind Mohan as against accused Mukesh is proved and convicted him accordingly under section 307 of I.P.C. After hearing on sentence, the convict was sentenced to rigorous imprisonment for a period of five years and directed to pay fine of ` 1000/- in default of payment to which the convict was directed to undergo further six months imprisonment. Aggrieved by said judgment and order dated 09.02.2001, passed by IIIrd Additional Sessions Judge, Hardwar, this appeal was filed by the convict.

(5) Before further discussion, this Court thinks it just and proper to mention the injuries mentioned in the injury report (Ex-A2) by Medical Officer Dr. Vinod Kumar Tyagi (since deceased) on 24.07.1995, in Civil Hospital Roorkee. The injury suffered by PW2 Govind Mohan recorded in injury report (Ex- A8) are reproduced below:-

1. An incised wound 4.5 cm x1 cm x peritoneum deep present on the left side of epigestrin region of abdomen omentum is coming out of the wound, soft red clot present.

2. An incised wound 1.5 cm x 0.3 cm muscle deep on the back of right index finger, soft red clot present. The Medical Officer as mentioned in the injury report opined that the injuries were caused by sharp object. In respect of injury no.1 it is mentioned that the same was kept under observation and case referred to the surgeon. Injury no.2 was reported to be simple, duration fresh.

(6) Learned Amicus Curiae submitted that the above report relating to PW2 Govind Mohan cannot be read in evidence as Medical Officer was not examined by the prosecution. However, this Court is unable to accept the contention of learned Amicus Curiae for the reason that PW4 Ajay Kumar an employee of Civil Hospital Roorkee, who has proved the report, has stated that Dr. Vinod Kumar Tyagi, who prepared the report had died. As such, there was no question of examination of the Medical Officer who had already died before his evidence could be recorded.

(7) PW2 Govind Mohan has stated on oath that 24.07.1995, at 7.00 am he was going to open his tea stall kiosk when accused Mukesh S/o Ghasita Ram armed with the knife came there and assaulted him. The witness further told that his mother took him to hospital. PW2 Govind Mohan further stated that he was assaulted by accused Mukesh in an attempt to kill him. Statement of this witness is fully corroborated from the medical injury report (Ex-A8) already discussed above.

(8) The statement of PW2 Govind Mohan (injured eyewitness) is fully further corroborated from the statement of PW1 Smt. Ranno Devi, who witnessed the incident and to took her son Govind Mohan to Civil Hospital Roorkee, for medical treatment. She also proved the First Information Report (Ex-A1) lodged by her at Police Station Kotwali Roorkee. The statement of the injured eyewitness and that of the informant are natural and trustworthy.

(9) Learned Amicus Curiae argued that since Govind Mohan (PW2) used to molest sister of the accused Mukesh, and DW1 Ghasita Ram (father of the accused) had complained to the police, due to that enmity the accused has been falsely implicated in the case. Had there been no knife injury on the vital part of Govind Mohan (PW2) what is argued on behalf of the accused could have been accepted. Considering the nature of injuries suffered by the witness (PW2) it is hard to believe that he would spare the real culprits and implicate the accused Mukesh due to enmity. Had there been many accused named then also it could have been argued that with the real culprit, other persons with whom complainant had enmity are implicated, but in the present case there is sole accused Mukesh who said to have assaulted with the knife. In such circumstances, it could not be accepted that accused Mukesh has been falsely implicated.

(10) For the reasons as discussed above, so far as the conviction is recorded by the trail court in respect of offence punishable under section 307 of I.P.C., against the accused Mukesh is concerned, this Court finds no illegality. To that extent appeal is liable to be dismissed. However, considering the facts and circumstance of the case, and the fact as narrated by DW1 Ghasita Ram that his daughter Mamta was molested by PW2 Govind Mohan regarding which complaint was made against him to police, this Court is of the view that sentencing the accused Mukesh to rigorous imprisonment for a period of three years would meet the ends of justice.

(11) Accordingly the appeal is disposed of affirming the conviction of accused/appellant Mukesh under section 307 of I.P.C, but the sentence awarded by the trial court is reduced to rigorous imprisonment for a period of three years without disturbing the direction to pay fine of ` 1000/-. With this modification in the sentence the appeal stands disposed of. The accused/appellant Mukesh S/o Ghasita Ram is on bail. His bail is cancelled. He shall surrender before the court concerned to serve out the remaining part of the sentence as modified by this Court. Lower court record be sent back.