- (1.) PRAFULLA C. Pant, J. This appeal preferred under section 383 of the Code Criminal Procedure, 1973 (hereinafter referred as Cr. P. C), is directed against the judgment and order dated 21. 8. 2006, passed by learned Sessions Judge, Uttarkashi, in Sessions Trial No. 5 of 2005, whereby accused/appellant Girish Singh has been convicted under section 304, Part-II of the Indian Penal Code, 1860 (hereinafter referred as IPC), and sentenced to undergo rigorous imprisonment for a period of five years and also to pay fine of Rs. 5,000 in default of payment of which he is directed to undergo simple imprisonment for a further period of six months. Heard learned Counsel for the parties and perused the entire evidence on record.
(2.) PROSECUTION story, in brief, is that Sageer Ansari (deceased) was a carpenter, who used to live in Hotel Hari Om in Uttarkashi. On 27. 3. 2005, he was coming from Hari Om Hotel towards Uttarkashi town, Accused/appellant Girish Singh was coming from opposite direction towards Sageer Ansari (deceased ). When both of them reached near Tambakhani they had some altercations between them. Suddenly, accused/appellant Girish Singh pushed deceased Sageer Ansari from the road. Consequently, Sagar Ansari fell down from the hill and suffered injuries due to the fall from Uttarkashi Tehri road. The incident took place at 1. 00 p. m. 3 Israil Mian, brother of the deceased, and P. W. 4 Mazhar Ansari son of the deceased, who were following Sageer Ansari (deceased), witnessed the incident. The two rushed to the place of incident and took the injured to the hospital where he succumbed to the injuries suffered by him in the incident. P. W. 3 Israil Mian, brother of the deceased, lodged First Information Report (Ext. A-3) with the police station Kotwali Uttarkashi, at about 2,00 p. m. on the very day i. e. 27. 3. 2005. Head Constable Madan Mohan prepared the check report (Ext. A-1) of the First Information Report and also made necessary entries in the general diary (copy of extract of which is Ext. A-2 ). PW. 6 Sub-Inspector B. S. Panwar accompanied with Constables Virendra Prasad and Abdul Hassan proceeded to the District Hospital, Uttarkashi where they took the dead-body in their possession, and prepared the inquest report (Ext. A-4 ). F. W. 6 Sub-Inspector B. S. Panwar further prepared sketch of the dead-body (Ext. A-6); police Form No. 13 (Ext. A-7) and letter (Ext. A-8) to the Chief Medical Officer, requesting him for postmortem examination of the dead-body. P. W. 5 Dr. M. P. Singh conducted autopsy on the dead-body on 28. 3. 2005, at 12. 15 p. m. and prepared post-mortem examination report (Ext. A-5 ). The crime was investigated by P. W. 7 Sub-Inspector Chotey lal Tamta who interrogated the witnesses, and prepared the site plan (Ext. A-10 ). On completion of the investigation, he submitted charge-sheet (Ext. A-11) against the accused/appellant Girish Singh, for his trial, for allegedly committing the offence punishable under section 304 of IPC. The Magistrate on receipt of the charge-sheet, after giving necessary copies to the accused, as required under section' 207 of the Cr. P. C. committed the case to the Court of Sessions, for trial. Learned Sessions Judge, after hearing the prosecution and the defence, on 5. 7. 2005, framed charge of offence punishable under section 304 of the IPC against the accused Girish Singh who pleaded not guilty and claimed to be tried. On this, prosecution got examined P. W. 1 Head Constable Madan Mohan (who prepared the check FIR); P. W. 2 Mumtaz Ahmad (scribe of the First Information Report); P. W. 3 Israil Mian (informant, eye-witness and brother of the deceased); RW. 4 Mazhar Ansari (eyewitness and son of the deceased); P. W. 5 Dr. M. P. Singh (who conducted the autopsy on the dead-body); P. W. 6 Sub-Inspector B. S. Parmar (who prepared the inquest report) and P. W, 7 Sub-Inspector Chotey lal Tamta (the Investigating Officer ). The oral and documentary evidence was put to the accused, under section. 313 of Cr. RC. in reply to which he alleged the, same to be false. However, no evidence was adduced in defence on behalf of the accused. The trial Court, after hearing the parties, found accused Girisn Singh, guilty of charge of offence punishable under section 304 of IPC, and after hearing on sentence, sentenced him to undergo rigorous imprisonment for a period of five years and also directed to pay fine of Rs. 5,000/ -. Aggrieved by said judgment and order dated 21. 8. 2006, passed by the learned Sessions Judge, Uttarkashi, this appeal has been preferred by the convict, from District Jail, Tehri. Before further discussions, it is pertinent to mention here, the ante-mortem injuries found on the persons of the deceased, recorded by PW. 5 Dr. M. P Singh, who prepared the post-mortem examination report (Ext. A-5 ). The same are reproduced as under: " (1) Contusion on left 3rd part of forehead, 3 cm above left eyebrow size 5 cm x 4 cm. (2) Lacerated (cut) wound on upper shaft of left ear lobule. Size 5 cm x 2 cm. Clotted blood present in ear. (3) A contusion on left parietal part of scalp, size 5 cm x 5 cm. Below it linear fracture in left parietal bone. " On opening the skull large sub-dural haematoma present over left cerebral hemisphere found. In the opinion of the Medical Officer, the cause of death was comma as a result of ante-mortem head injury No. 3, caused by impact of hard blunt object.
(3.) RW. 3 Israil Mian (brother of the deceased) and P. W. 4 Mazhar Ansari (son of the deceased) are the two eyewitnesses of the incident. Both of them have stated that on 27. 3. 2005, at about 1. 00 p. m. they were going from Gyanasu to Uttarkashi. They further stated that the deceased was ahead of them and he too was going on the same direction. According to the witnesses when the deceased rushed near Tam bakhani, accused Girish Singh who was coming from opposite direction met Sageer Ansari and objected to alleged illicit relations of the deceased with wife of the accused. On this both (deceased and the accused) started quarrelling. Accused Girish Singh gave a push to Sageer Ansari, who fell down from the road down the hill, and suffered injuries in the temporal region, near left ear. The two witnesses have stated that they took the injured immediately to the hospital where the injured succumbed to the injuries. Thereafter, according to P. W. 3 Israil Mian, he lodged the First Information Report with police station Kotwali Uttarkashi, after getting the report scribed by Mumtaz. P. W. 2 Mumtaz Ahmad has corroborated the story and stated that he prepared the First Information Report (Ext. A-3) on dictation of P. W. 3 Israil Mian. The First Information Report, as apparent from its check report, appears to have been lodged at 2. 00 p. m. i. e. after one hour of the incident. The lodging of the First Information Report gets corroboration from the extract of copy of the general diary, which is Ext. A-2 on the record, proved by P. W. I Head Constable Madan Mohan. Mr. Rajesh Sharma, amicus curiae appearing on behalf of the appellant argued that the incident has taken place on open road and eye-witnesses who corroborated the prosecution story, are the family members of the deceased, as such, their testimony should not be believed. No doubt, had the incident taken place in the house of the deceased or in the house of the witnesses, their presence could have been said to be the natural one. In the present case, the place where the incident took place is a public road and the incident is committed in broad day light. In such circumstances, testimony of only close relatives could have been suspected, but the factum which is established on record, that the two eyewitnesses took the injured immediately after the incident to the hospital, removes any doubt as to their presence at the place of incident. As such, in the opinion of this Court, the testimony of the two eye-witnesses, though relatives, cannot be disbelieved.;