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2009 Supreme(UK) 133
2009 N.C.C. 748
UTTARAKHAND HIGH COURT
Hon’ble Mr. Justice Prafulla C. Pant and Hon’ble Mr. Justice B.S. Verma
Criminal Jail Appeal No. 268 of 2002
Along with Criminal Jail Appeal No. 270 of 2002
VIKKA – Appellant
Versus
STATE – Respondent
Decided on : 26.03.2009
For the Appellant : Km. Krishi Shukla, Amicus Curiae
For the Respondent:Mr. Amit Bhatt, Additional Government Advocate
Headnote:Indian Penal Code, 1860, Sec. 302 — Conviction and Sentence — Sustainability of — Appreciation of evidence — Accused had previous enmity with deceased — Accuseds had common intention though they were not armed with any weapon — Accused while beating, pushed deceased in a gorge and his head struck on a stone — Consideration — The facts and the circumstances shows that the act of accuseds with common intention does constitute culpable homicide not amounting to murder punishable in part II of Sec. 304, I.P.C. — Also, it cannot be said to be an offence of culpable homicide amounting to murder or culpable homicide not amounting to murder punishable under Part I — Held — The conviction and sentence recorded by the trial court modified accordingly — Appeals to be allowed partly. (Para 9)
Hkkjrh; n.M lafgrk] 1860] /kkjk&302 & nks"kflf) vkSj dkjkokl dh ltk ds fu.kZ; dks pqukSrh nh xbZ & lk{; dk vf/kewY;kadu dk iz'u & vfHk;qDr dh e`rd ls igys ls gh 'k=qrk Fkh & vfHk;qDrksa dk leku bjknk Fkk ;|fi muds ikl dksbZ gfFk;kj ugha Fkk & vfHk;qDr tc fiVkbZ dj jgs Fks rks mUgksaus e`rd dks ,d [kkbZ esa /kdsy fn;k vkSj mldk lj ,d iRFkj ls tk yxk & fopkj.k djus ij ik;k x;k fd rF; vkSj ifjfLFkfr;ksa ls fofnr gksrk gS fd vfHk;qDrksa }kjk leku bjkns ds lkFk fd;k x;k dk;Z gR;k uk gksdj vijkf/kd ekuo o/k gS tks /kkjk&304 vk ih lh Hkkx II ds vUrxZr n.Muh; gS vkSj bls vijkf/kd ekuo o/k tks fd gR;k dgykbZ tk lds Hkh ugha dgk tk ldrk vFkok vijkf/kd ekuo o/k tks gR;k u gks izFke Hkkx esa n.Muh; Hkh ugha dgk tk ldrk & vihy ds fu.kZ; esa dgk x;k fd nks"kfLf) vkSj dkjkokl dh ltk tks fopkj.k U;k;ky; }kjk lqukbZ xbZ Fkh dks rnuqlkj la'kksf/kr fd;k x;k & vkaf'kd :i ls vihy Lohdkj dh xbZA ¼izLrj 9½
[Per : Hon’ble Prafulla C. Pant, J. (Oral)]
These two appeals, preferred under Section 374 of Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), is directed against the same judgment and order dated 21.12.2001, passed by learned Sessions Judge, Tehri Garhwal, in Sessions Trial No. 1 of 2001, whereby accused/appellant Shankra has been convicted under Section 302 and accused/appelalnt Vikka has been convicted under Section302 read with Section 34 of Indian Penal Code, 1860 (hereinafter referred as I.P.C.). Each one of the convicts is sentenced to imprisonment for life and also directed to pay fine of Rs. 2,000/-, in default of payment of which the defaulter is required to undergo simple imprisonment for a period of three months.
2. Heard learned counsel for the parties and perused the trial court’s record.
3. Prosecution story in brief is that on 02.11.2000, P.W.3 Smt. Tara Devi made a report to area Patwari Nainbagh, Patti Silwad-Jaunpur, Tehri Garhwal, that she was informed on 01.11.2000 at about 2.00 P.M. by Kundanu (P.W.2) and Shankra Singh (accused) that her husband Balbir Singh (deceased) is lying dead in a gorge. She further disclosed in her report (Ext. A-1), made to the Patwari, that earlier accused Vikka on 31.10.2000 had expressed his annoyance against the deceased Balbir on account of some dispute of money and he had threatened him to kill. She (Smt. Tara Devi) suspected that he (Vikka) might have his hand in the murder of her husband. (In interior hills of Uttarakhand revenue officials are given police powers under U.P. Government Notification No. 494/VIII-418-16, dated 07.03.1916). On the basis of report of Tara Devi, the area Patwari registered Crime No. 5 of 2000, relating to offence punishable under Section 302 I.P.C. against accused/appellant Vikka. Sri Manendra Singh, Patwari, to whom the report was made, prepared Chick Report (Ext.A-5) on the basis of report (Ext. A-1), and started the investigation of the case. He took the dead body of the deceased in his possession and prepared Inquest Report. He also prepared other necessary papers and sample seal and got sent the dead body for postmortem examination in a sealed cover. P.W.5 Dr. Gyanendra Singh on 03.11.2000 conducted postmortem examination of the dead body and prepared Autopsy Report (Ext. A-4). In the opinion of the Medical Officer cause of death was coma due to ante mortem injuries No. 1 and 2 recorded in the Autopsy Report. The Investigating Officer interrogated the witnesses and got recorded the statements of P.W.1 Smt. Roshni (wife of the accused Vikka) and that of P.W.2 Kundanu, under Section 164 Cr.P.C. by P.W.4 Ghanshyam Singh, Sub Divisional Magistrate, Tehri. P.W.1 Roshni in her statement under Section 164 Cr.P.C. disclosed that she saw accused/appellant Shankra beating deceased (Balbir) and Vikka was standing there. In his statement under Section 164 Cr.P.C., P.W.2 Kundanu Lal told the Sub Divisional Magistrate that he saw Shankra beating Balbir. Both these witnesses have further disclosed that when Shankra was beating Balbir. Vikka was standing with him (Shankra). After completion of the investigation, the Investigating Officer P.W.6 Manendra Singh, Patwari, submitted Charge Sheet (Ext. A-9) against both the appellants, namely, Shankra and Vikka, for their trial relating to offence punishable under Section 302 I.P.C.
4. The Magistrate, on receipt of the charge sheet, after giving necessary copies to the accused, as required under Section 207 of Cr.P.C., appears to have committed the case to the court of Sessions for trial. Learned Sessions Judge, after hearing the parties, framed charge of offence punishable under Section 302 I.P.C. against the accused Shankra and one punishable under Section 302 read with Section 34 I.P.C. against accused Vikka, to which both of them pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W.1 Smt. Roshni (wife of accused Vikka, an eyewitness); P.W.2 Kundanu, a
