Hariom vs State Of Uttarakhand
2021 Latest Caselaw 2126 UK

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

          Criminal Appeal No. 320 of 2020


Hariom                                   ..... Appellant
                            Versus

State of Uttarakhand                         ..... Respondent
                             With

             Criminal Appeal No. 24 of 2021


Gurbachan Singh                           ..... Appellant
                            Versus

State of Uttarakhand                      ....Respondent


Mr. Vikas Anand, learned counsel for the appellant.
Mr. Subhash Tyagi Bhardwaj, learned Dy. A.G. along with Ms.
Shivangi Gangwar, learned Brief Holder for the State.
Mr. Sanjay Singh, learned counsel for the private respondent.

Hon'ble R.C. Khulbe, J.

Heard.

2. Admit.

3. Both the criminal appeals are directed against the judgment and order dated 20.08.2020, passed by the 2nd Additional Sessions Judge, Kashipur, District Udham Singh Nagar in Sessions Trial No. 201 of 2018 whereby the learned Trial Court has convicted the appellants under Section 304 and 323 IPC and sentenced them ten years rigorous imprisonment under section 304 IPC with fine of Rs. 4,000/- each, in default of payment of which they have to undergo further one year rigorous imprisonment and further sentenced them one year rigorous imprisonment under section 323 IPC with fine of Rs. 1,000/- each, in default of payment of which they have to undergo further three

months rigorous imprisonment. Both the sentences are directed to be run concurrently.

4. Since, both the appeals are arise out of the common judgment and order, therefore, for the sake of brevity, same are being decided by a common judgment. CRLA No. 320 of 2020 shall be considered as a leading case.

5. Brief facts of the case are that, informant- ladaitiya Devi submitted an information on 22.06.2018 with Police Station ITI, Kashipur that on 21.06.2018 at about 12:00 AM (night) her neighbour Hariom and Gurubachan (present appellants) entered in the house of the informant and committed marpeet with her husband as well as with her father-in-law. Accordingly, her husband and father-in-law received grievous injuries and her father-in-law Ram Lal succumbed to the injuries.

6. On the basis of said information, chik FIR (Ex. A6) was lodged with Police Station ITI, Kashipur, G.D. (Ex. A7) and site plan (Ex. A8) was prepared. The accused were arrested and arresting memo (Ex. A9 and Ex. A10) were prepared. The investigating officer recorded the statement of the witnesses and ultimately submitted charge sheet (Ex. A11). The concerned court took cognizance and after compliance with the provision of section 207 Cr.P.C., the case was committed to the court of Sessions Judge. Accordingly, the Sessions Judge has framed the charges under section 304, 323 and 506 IPC on 02.01.2018. The appellants denied the allegations and claimed to be tried.

7. In order to prove its case, prosecution got examined PW1 Ladaitiya Devi (informant) who proved the information (Ex. A1), PW2 Hemraj Singh (son of the deceased) has proved the panchnama (Ex. A2), PW3 Jyoti, is the eye witness who narrated the entire story, as alleged in the FIR, PW4 Dr. Jasveer Singh, who prepared the medical reports of Ramlal (Ex. A3 and Ex. A4), PW5 Dr. Vikas Gahlot, who conducted the post mortem of the deceased and prepared the post mortem report (Ex. A5), PW6 Hemant Manral has proved the chik FIR (Ex. A6) and G.D. (Ex. A7) and PW7 S.I. Kaushal Bhakuni, recorded the statements of the witnesses, arrested the appellants, prepared the arresting memo (Ex. A9 and Ex. A10) and after completion of the investigation submitted charge sheet (Ex. A11).

8. After completion of the prosecution evidence, statements of the appellants under section 313 Cr.P.C. were recorded in which they stated that the prosecution has produced false evidence against them. However, in defence, no evidence was produced.

9. After hearing both the parties, learned trial Court convicted the appellants and sentenced them as mentioned in paragraph no.1 of the judgment.

10. Feeling aggrieved by the order of conviction and sentence, the present appeals are preferred before this Court.

11. Heard the learned counsel for the appellant as well as learned counsel for the State.

12. It is submitted by learned counsel for the appellants that he does not want to argue the case on merit as the trial Court has rightly convicted the appellants based on sufficient material on record; there is no illegality in the impugned findings regarding conviction but he fairly submits that both the appellants are real brothers and are sole bread earner of their family, there is no criminal antecedent of both the appellant; they have served more than three years in jail and prays that while affirming the conviction, the Court may consider to reduce the sentence awarded to the appellants to the period already undergone by them.

13. Learned counsel for the private respondent submits that there is sufficient evidence on record to convict the appellants. There is no illegality in the impugned judgment. While the learned State Counsel submitted that as per the evidence, the matter falls under section 304 (II) IPC where 10 years maximum punishment is prescribed.

14. I have also gone through the entire evidence on record and re-assessed the entire evidence produced by the prosecution and 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. The matter relates to the year 2018; the appellants are the sole bread earner of their family; they have no criminal history against them. 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, the appellants gave a lathi blow on the

head of the deceased. There does not appear to be any premeditation or intention to kill the deceased. The death resulted due to injury in quarrel, therefore, the case definitely would fall under section part II of Section 304 IPC.

15. 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 appellants at the most comes under Part II of Section 304 IPC. The appellants have already served more than three years. Thus, looking into the entire facts, it is considered to be just and proper to convict the appellants under Section 304 (II) IPC and alter the sentence from ten years to four years. As regard to the conviction and sentence under section 323 IPC is concerned, there is no illegality.

16. In view of the above discussion, the appeal is allowed in part. The appellants are sentenced as follows:

A. The appellants are sentenced to undergo four years rigorous imprisonment under section 304 (II) IPC instead of ten years as awarded by the trial court. The fine awarded under section 304 IPC will remain intact.

B. The sentence awarded under section 323 IPC will remain intact.

C. Both the sentences shall run concurrently. D. On completion of period of sentence, as modified by this Court, appellants shall be released from jail as per law and after due verification of records.

17. 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.) 30.06.2021 Parul