Dismissed

Vivek Tyagi v. State and Ors.

Uttarakhand HC5 Mar 2014CRLA/124/2002

Case brief

AI extract

What is this about?

The High Court dismissed the criminal appeal preferring to affirm the conviction and sentence of the appellant under Section 324 IPC for causing hurt by dangerous weapons. The court cancelled the appellant's bail and directed his immediate surrender to serve the sentence.

What did the court decide?

Criminal appeal dismissed; conviction and sentence affirmed under Section 324/34 IPC; bail cancelled; appellant directed to surrender.

Vivek Tyagi Vs State and Ors. — Murder and Culpable Homicide | Uttarakhand HC (2014)

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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

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Criminal Appeal No.124 of 2002

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Vivek Tyagi @ Twinkle …….... Appellant

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versus

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State of Uttaranchal & others ………. Opposite Parties

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Mrs. Nishat Intezar, Amicus Curiae, present for the Appellant. Mr. Vipul Painuli, AGA, present for the State of Uttarakhand/respondent.

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JUDGMENT

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U.C. Dhyani, J. (Oral)

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PW 5 Jaman Singh Rawat wrote a complaint (Ext. Ka-3) to Inspector In-charge, PS Rishikesh on 25.04.2001 enumerating the facts contained therein that in the intervening night of 24/25.04.2001, his servant Karna Bahadur was on his duty in hospital Shivlok, Laxman Jhoola, Rishikesh. Somebody pelted stones from outside. Karna Bahadur saw that Vivek Tyagi alias Twinkle and his companion threw stones at the hotel. Karna Bahadur refrained them from doing so. He also raised an alarm. Vivek Tyagi and his companion inflicted blow of stick on the head of Karna Bahadur. He (Karna Bahadur) sustained injuries. Injured was taken to hospital. The incident took place in the midnight at around 12:00 am.

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The incident took place in the intervening night of 24/25.04.2001, at around 12:00 am, the chik FIR was lodged on 25.04.2001, at 1:25 am. The distance between the place of occurrence and the police station was one kilometer. Hence, there appears to be no delay in lodging the first information report. After investigation of the case, a charge-sheet was submitted against the accused persons, namely, Vivek Tyagi and Narendra Singh Negi for the offence punishable under Section 307 of IPC. The case was committed to the Court of Sessions. When charge under Section 307 IPC read with Section 34 IPC was framed against the accused persons, they pleaded not guilty and claimed trial. PW 1 Karna Bahadur (injured), PW 2 Dalip Singh, PW 3 Dr. Rakesh Kumar, PW 4 Constable Sunil Kumar, PW 5 Jaman Singh Rawat and PW 6 SI Mahendra (I.O.) were examined on behalf of the prosecution. Incriminating evidence was put to the accused persons in statement under Section 313 Cr.P.C., in reply to which they said that they were falsely implicated in the case. DW 1 Tejpal Singh was examined in defence. After considering the evidence on record, accused Narendra Singh Negi was exonerated of the charge levelled against him. Accusedappellant Vivek Tyagi was, however, convicted of the offence punishable under Section 324 IPC and was sentenced to undergo rigorous imprisonment for one year along with fine of Rs. 2000/-, in default of payment of fine, he was directed to undergo three month’s further rigorous imprisonment, vide impugned judgment and order dated 20.05.2002. Aggrieved against the said judgment and order, present Criminal Appeal was preferred.

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Prosecution led the evidence through PW 1 (injured), who stated in his examination-in-chief, that in the year 2001, he was working as chowkidar in Shivlok Hotel, Laxman Jhoola, Rishikesh. On 24.04.2001, at around 12 am in the night when he was doing his duty (as watchman), Vivek Tyagi entered into the hotel. He started abusing PW 1. Then he called his companion. Both the accused persons were present in the Court when the oral evidence of PW 1 was recorded. Vivek Tyagi brought a stick and gave a blow of the same on PW 1’s head, as a consequence of which, PW 1 sustained the injuries on his head. Blood oozed from PW 1’s head. Accused persons fled away. PW 1 informed the proprietor of the hotel Jaman Singh (PW 5). Vivek Tyagi gave 2-3 blows on the head of PW 1. His companion caught hold of PW 1. Before beating PW 1, Vivek Tyagi threw stones at the hotel. Manager of the hotel took PW 1 to Rishikesh he was Hospital, whereupon, medically examined. PW 1 remained in the hospital for three days.

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In his cross-examination, PW 1 stated that he became unconscious when he was hit upon his head. His wearing apparels were also stained with blood. Blood dropped on earth also. Accused persons fled away after committing the offence. Vivek Tyagi gave three blows on PW 1. First blow was given in his legs, second blow on his stomach and the third blow on his head. In this way, nothing came in the cross-examination of PW 1 which might cast suspicion on his testimony. PW 1 was a natural witness. He was injured also. There was no reason to

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disbelieve his ocular evidence. The testimony of PW 1 was acceptable.

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PW 2 was a witness, who saw the incident. He stated, in his examination-in-chief, that he was working as receptionist in Shivlok Hotel. PW 2 stated that PW 1 worked as watchman in his hotel. When the incident took place, PW 1 was standing at the gate of the hospital. PW 2 was in the reception. At around 12 O’ clock in the night, accused persons Vivek Tyagi and his companion came. They picked up quarrel with PW 1. Earlier, they pelted stones on him. When PW 1 refrained them from doing so, accused persons hurled abuses at him. When he requested them not to abuse him, both the accused assaulted him with lathies (sticks) and as a consequence thereof, PW 1 sustained injuries on his head. PW 2 saw the incident. As soon as he went outside, accused persons fled away. PW 2 picked PW 1 to the Government Hospital at Rishikesh, whereupon PW 1 was medically examined. Medical treatment was provided to him. Udaiveer Chand Ramola, Harikrishna Bijalwan and proprietor of the hotel Jaman Singh Rawat reached there. In his cross-examination, PW 2 stated that PW 1 was standing at the gate when the incident took place. Gate of the hotel was opened. PW 2 did not count number of blows which were given to PW 1. PW 1 sustained injuries on his head. Blood dropped on the earth. PW 1 became unconscious. PW 2 took him to hospital. X- ray of the injuries of PW 1 was conducted. PW 2 did not chase the assailants. PW 2 was known to Vivek Tyagi before this incident. Wearing apparels of the watchman

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were not given to the police. PW 2 admitted that Vivek Tyagi did not assault him. PW 2 denied the suggestion that he was not present at the place of incident. Nothing substantial came in the cross-examination of PW 2 to suggest that he was telling a lie. He was a natural witness, whose presence on the place of incident, at the time of incident, could not be doubted. He was the receptionist of the hotel and it cannot be inferred by any stretch of imagination that he did not see the incident. The testimony of PW 1 was acceptable.

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PW 4 was a formal witness, who lend assurance to the prosecution story. PW 5 was the proprietor of the hotel. He was present in the hotel when the incident took place. PW 5 stated that PW 1 was working as watchman in his hotel. The hotel was a four storied building. PW 2 was in reception duty. In the intervening night of 24/25.04.2001, when PW 1 raised an alarm, PW 5 came out of his room. PW 5 stated that accused persons were assaulting PW 1. When PW 5 intervened, accused persons threatened him and fled away on scooter. PW 1 fell unconscious. He was bleeding profusely. PW 1 was, therefore, taken to hospital for providing medical aid. PW 5 wrote complaint (Ext. Ka3), submitted the same in PS concerned and proved the contents of the same. PW 5 was also cross-examined by the learned counsel for the appellant Vivek Tyagi, much to his discomfiture. PW 6 was the investigating officer, who conducted investigation and after being satisfied that the accused persons committed the offence, submitted the charge-sheet against them.

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PW 3 examined PW 1 on 25.04.2001 at Government Hospital at Rishikesh. PW 3 found the following injuries on the person of PW 1 on 25.04.2001, at 12:15 am.

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(i) A lacerated wound, 7 x 1 cm deep to skin over mid of scalp 13 cm above the right ear. Oozing of blood, red in colour, irregular margins.

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(ii) A contusion over back of chest, 2.5 cm wide and 12 cm long as linear mark and red in colour.

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(iii) A contusion over back of chest, 2.5 cm x 10 cm linear mark red in colour. X-ray of chest was advised.

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It was opined by the Doctor (PW 3) that the injuries were caused by hard and blunt object. Injuries no. 2 & 3 were kept under observation. X-ray of chest was advised. Injury no. 1 was a head injury and was kept under observation. Duration of the injuries was fresh. The injury report coincides with the incident. Whereas the incident took place at around 12:00 am, PW 3 examined the injuries of PW 1 on the selfsame day at 12:15 am. It was only after the medical report, that the first information report was lodged on the selfsame day, after a gap of one hour. Everything was in perfect coordination. When the incident took place, PW 2 and PW 5 saw the incident. PW 1 himself entered into the witness-box. Ocular version of PW 1, PW 2 and PW 5 was corroborated by PW 3. The other witnesses lend assurance to the prosecution story. There was not even an iota of doubt in the prosecution story. In a nutshell,

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prosecution story was proved beyond a shadow of reasonable doubt.

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Learned Court below has discussed the prosecution evidence, as also the defence evidence, and has rightly come to conclusion that the prosecution was able to prove the case against the accused-appellant beyond reasonable doubt. There is nothing on record to suggest that a different view from what was taken by the Court below should be taken.

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No interference is called for. Criminal Appeal is liable to be dismissed and is accordingly dismissed. The Judgment and Order under Appeal is affirmed, as also the conviction and sentence awarded to the accused-appellant. Accused-appellant is on bail. His bail is cancelled. He is directed to surrender before the Court below forthwith to serve out the sentence, as was awarded to him by the Court below and thus affirmed by this Court.

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Let a copy of this Judgment along with the Lower Court Record be sent back to the Court below for causing the accused-appellant surrender and sending him to prison to serve out the sentence as above.

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Dt. 05.03.2014

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Kaushal

Vivek Tyagi v. State and Ors.

Case brief

What is this about?

What did the court decide?

Vivek Tyagi v. State and Ors.

Case brief

What is this about?

What did the court decide?

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