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2004 Supreme(UK) 219
2005 (1) U.D., 127
High Court of Uttaranchal
J.C.S. Rawat, J.
Surendra. @ Chikna
Vs.
State
Criminal Appeal no. 281 of 2003, And Criminal Appeal no. 270 of 2003,
Decided on : 13-9-2004.
Sri Sandeep Tandon, Advocate for the appellants.
Sri H.C. Pandey, learned A.G.A. for the State.
The central legal point established in the judgment is the requirement of sufficient evidence to prove the intention to cause harm and the nature of injuries in cases involving assault, influencing the court's decision on the appropriate section of the IPC to apply.
Headnote:
Criminal Appeal - Conviction under section 307 read with section 34 IPC - [307, 34] - The court discussed the evidence presented by the prosecution, the medical examination report, and the reliability of the C.T. Scan report. It highlighted the lack of evidence to prove the intention to cause harm and the nature of injuries, ultimately leading to the decision to alter the conviction from section 307 to section 324 IPC for the appellants and the co-accused.
Fact of the Case:
The victim, an ice cream seller, was assaulted by the appellants and others when he refused to give them money for purchasing liquor, resulting in injuries to the victim's head and face. The witnesses reported the incident to the police, leading to the filing of charges under section 307 read with section 34 IPC.
Finding of the Court:
The court found the prosecution witnesses credible and trustworthy, and the medical examination supported their testimony. It also questioned the reliability of the C.T. Scan report and concluded that the injuries did not indicate an intention to cause harm, leading to the alteration of the conviction.
Issues: Credibility of prosecution witnesses, reliability of medical evidence, and intention to cause harm.
Ratio Decidendi: The lack of evidence to prove the intention to cause harm and the nature of injuries led to the alteration of the conviction from section 307 to section 324 IPC for the appellants and the co-accused.
Final Decision: The conviction under section 307 read with section 34 IPC was altered to that under section 324/34 IPC, and the sentence was reduced for the appellants. The co-accused also received the benefit of the altered finding.
Both these two criminal appeals under section 374 of the Code of Criminal Procedure have been filed against the .same judgment and order dated 25-8-2003 passed by learned Sessions Judge, Dehradun in S.T. No. 75/2002 State Vs. Umesh Dimri and others, whereby the Sessions Judge has convicted Umesh Dimri @ Mukesh Dlmri, Surendra @ Chikna & Rakesh @ Raka and sentenced them to undergo RI for five years under section 307 read with section 34 IPC and further to pay fine of Rs. 2000/- each and In default of payment of fine all the convicts shall have to undergo further rigorous Imprisonment for six months each. However, Umesh Dimri @ Mukesh Dimri, Surendra @ Chikna and Rakesh @ Raka were acquitted from the charge under section 504 IPC.
2. Brief facts of the case are that on 5-4-2002 at about 4PM Om Prakash Yadav (PW-l) - an Ice cream seller was coming to his house after selling the ice cream and on the way when he reached near Shiv Mandir, M.D.D.A. Colony, Kedarpuram accused-Umesh Dimri @ Mukesh Dimri, Surendra @ Chikna and Rakesh .@ Raka met him there and they stopped him. Accused persons then demanded money from him for purchasing the liquor. When he refused to give the money the accused persons have wielded 'Lathi-Danda' on his head and abused him. The victim-Om Prakash sustained the injuries on his head and face. Raj Kumar (PW-4) and Banwarl Lal (PW-3) informant reached there and witnessed the occurrence. They raised alarm and tried to chase the assailants but the assailants made their escape good from there. Banwari Lal (PW-3) - informant with the assistance of anther witness Raj Kumar took the victim-Om Prakash to Doon Hospital him medically examined at 6PM on the same day. Thereafter, the written report (E.ka.2) scribed by Raj Kumar (PW-4) was lodged by Banwari Lal (PW-3) at the police station Dalanwala on 5-4-2002 at 10: 15PM. On the basis of written report (Ex.ka.2), the FIR (Ex.ka.5) was prepared and a case was registered. The Investigation was entrusted to S.I. H.S. Negi (PW-5) who visited the place of occurrence and prepared site plan and recorded the statements of the witnesses. After completing the investigation, the chargesheet was submitted by the 1.0. against the appellants and Rakesh @ Raka under section 307/34 and 504/34 IPC.
3. Charges were framed against the appellants and Rakesh @ Raka 307 read with section 34 IPC. The accused denied the charge and claimed the trial.
4. In order to prove its case, the prosecution has produced seven witnesses. am Prakash Yadav (PW-l) was the victim of the Incident. Dr. S.S. Tollia (PW-2) conducted the medical examination of the injured-Om Prakash on 5-4-2002 at about 6PM and detected the following Injuries on his person :-
(I) Missing of upper incisor teeth, fresh bleeding present refer to dental surgeon.
(ii) Lacerated bond 1cm x 0.5cm on the right angle of the mouth.
(iii) Traumatic swelling 5cm x 2cm, right side head 6cm about right ear, X-ray advised.
5. Dr. S.S. Tollia advised for X-ray for injury nos. 1 & 3 and further opined that injury no. 2 was simple in nature and It was possible by the blunt weapon. He further opined that all the injuries were fresh and all the injuries could have been caused by Lathi and Dandas.
6. Banwari Lal (PW-3) was the Informant of the incident. He also proved the report EX.ka.2. Raj Kumar (PW-4) and Banwari Lal (PW-3) were the eye witnesses of the occurrence. S.I. Sri H.S. Negi (PW-5) was the Investigating officer of the case. The prosecution had also produced Dr. K.K. Tamta (PW-6) who proved the medical report EX.ka.8. He was posted at Dun Hospital as a surgeon. The prosecution also adduced the evidence of Vijay Bhardwaj (PW-7), who was the PRO in the C.T. Scan Centre, Dehradun and he also proved the C.T. Scan report (Ex.ka.9).
7.. The appellants and Rakesh @ Raka in their statements recorded under section 313 Cr.P,.C. denied the prosecution case and stated that they have been falsely Implicated In the case. The appellants and other
