Uttarakhand High Court
Sonu vs State Of Uttarakhand on 5 July, 2021
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Appeal No.57 of 2016
Sonu ..... Appellant
Versus
State of Uttarakhand ..... Respondent
Mr. Mahesh C. Pant, learned counsel for the appellant.
Mrs. Pushpa Bhatt, learned Dy. A.G. along with Ms. Shivangi,
learned Brief Holder for the State.
Hon'ble R.C. Khulbe, J.
The present criminal appeal is directed
against the judgment and order dated 27.01.2016 passed
by the learned Additional Sessions Judge, Nainital, in
S.T. No.107 of 2011, 'State vs. Sonu, whereby the learned
Trial Court convicted the appellant u/s 304 IPC and
sentenced him to undergo ten years' R.I. with a fine of
Rs.10,000; in default of payment of fine he was also
sentenced to undergo one year's additional
imprisonment.
2. Brief facts of the case are that PW1 Mahendra
Singh submitted an information Ex.Ka-1 with Police
Station-Kotwali Ramnagar on 04.08.2011. On the basis
of said information, a Chick FIR Ex.Ka-14 was lodged
with the police station. Accordingly, inquest report Ex.Ka-
2 and post-mortem report Ex.Ka-3 were also prepared;
the accused was arrested; and the arresting memo Ex.Ka-
4 was also prepared. After investigation, charge-sheet
Ex.Ka-7 was submitted. Accordingly, after compliance
with the provision of Section 207 Cr.P.C.; the concerned
Magistrate took the cognizance and committed the case
to the Court of Sessions. The Sessions Judge framed the
charge under Sections 304 IPC on 31.03.2012. The
appellant denied all the allegations and claimed to be
tried.
3. To bring home the guilt of the appellant, the
prosecution produced PW1-Mahendra Singh (informant),
who proved the written report Ex.Ka-1; PW2 Rajendra
Singh Rawat, who was appointed as Panch and in whose
presence panchanama Ex.Ka-2 was prepared; PW3
Laxman Singh Bisht; PW4 Rajeev Kumar Bhatnagar is
the eye-witness, who narrated the entire story; PW5 Dr.
Nilamber Bhatt, who conducted the post-mortem and
prepared post-mortem report Ex.Ka-3; PW6 S.I. Nilabh
Khati is the I.O. in whose presence the appellant was
arrested and who prepared the arresting memo Ex.Ka-4,
information memo Ex.Ka-5, site plan Ex.Ka-6, recorded
the statements of witnesses and submitted charge-sheet
Ex.Ka-7; PW7 S.I. Sweta Negi has deposed that on
04.08.2011, she prepared G.D. Ex. Ka-8 and Ex.Ka-9 and
also took photographs of dead body Ex.Ka-10 and sample
Ex.Ka-12; PW8 Daan Giri, in whose presence the
information was submitted with police station and,
accordingly, the chick FIR KA-14 and G.D. Ex.Ka-15 were
prepared; and, PW9 is Dr. H.C. Pant in whose presence
the deceased was brought in injured condition. On the
basis of injury, he prepared the medical report Ex.Ka-16
and the deceased was referred for higher centre.
4. After completion of prosecution evidence,
statement of appellant was recorded u/s 313 Cr.P.C. in
which he denied all the evidences and stated that the
prosecution produced false evidences against him.
However, no evidence was produced in defence.
5. After hearing both the parties, learned trial
court convicted the appellant and sentenced him as
mentioned in paragraph no.1 of the judgment.
6. Feeling aggrieved by the order of conviction and
sentence, the present appeal is preferred before this
Court.
7. Heard the learned counsel for the appellant as
well as learned counsel for the State.
8. It is submitted by learned counsel for the
appellant that he does not want to argue the case on
merits, as the trial Court has rightly convicted the
appellant based on sufficient material on record; there is
no illegality in the impugned judgment, he fairly
submitted that the matter relates to the year 2011; the
appellant is sole bread earner of his family; he has
already served more than six years in jail; his mother is
very old and infirm; there is no criminal antecedents of
the appellant; this Court, while upholding appellant's
conviction, may consider to alter the sentence awarded to
the appellant and reduce it to the extent of period already
undergone. He lastly submitted that the trial court
awarded one year sentence in default of payment of fine,
which is on higher side.
9. The learned counsel for the State has no
objection for the same but submitted that as per the
evidence, the matter falls under section 304 (II) IPC where
10 years maximum punishment is prescribed.
10. I have also gone through the entire evidence on
record and re-assessed the entire evidence produced by
the prosecution. PW1 informant, who is the father of the
deceased was not the eye-witness. PW2 Rajendra Singh
Rawat is only a witness of Panchnama; and PW3 Laxman
Singh Bisht is also not eye-witness. PW4 Rajeev Kumar is
the eye-witness, who submitted that on 01.08.2011 at
about 5:30 P.M. deceased Vinod came at his hotel and
the appellant Sonu was also present there. There was an
altercation between Vinod and Sonu, and, accordingly,
appellant Sonu caused injury to the deceased Vinod.
From the perusal of the evidence, I came to this
conclusion that the trial court has rightly convicted the
appellants based on sufficient material on record. There
is no illegality or infirmity in the impugned findings
regarding conviction.
11. From the record, it appears that the incident
has taken place on the spur of moment. It was only after
some altercation and on the spur of moment. There does
not appear to be any premeditation or intention to kill the
deceased-Vinod. The death resulted due to injury in
quarrel, therefore, the case definitely would fall under
section part II of Section 304 IPC.
12. From the perusal of the injury sustained by the
deceased and having regard to the facts and
circumstances of the case, in my opinion, the offence
committed by the appellant at the most comes under Part
II of Section 304 IPC. Thus, looking into the entire facts,
it is considered to be just and proper to convict the
appellant under Section 304 (II) IPC and alter the
sentence from ten years to six years. From the perusal of
the operative portion of the judgment it is clear that
learned Sessions Judge, awarded one years' additional
imprisonment in default of payment of fine, which is
certainly on the higher side. In my view, three months'
additional imprisonment is sufficient, in default of
payment of fine.
13. In view of the above discussion, the appeal is
allowed in part. The appellant is sentenced as follows:-
A. The appellant is sentenced to undergo six
years' rigorous imprisonment under section
304 Part-2 IPC instead of ten years as awarded
by the trial court.
B. The fine awarded by the learned trial
Court U/s 304 IPC will remain intact. However,
the appellant will serve three months'
additional imprisonment in default of payment
of fine, instead of one year.
14. On completion of period of sentence, as
modified by this Court, appellant shall be released from
jail as per law and after due verification of records.
15. Let a copy of this judgment alongwith records
be sent back to the court concerned. The Registry is
directed to send a copy of this judgment to the jail
authority also for compliance.
(R.C. Khulbe, J.)
05.07.2021
Sukhbant
