The Uttarakhand High Court has set aside the acquittal of three accused by a trial court and sentenced them for a period of one year and six months. The Court observed, “Merely because an accused is deaf and dumb does not make him innocent, or place any doubt on the recovery made from him.”

This is an appeal filed by the State which arises out of judgment and order dated 04.03.2013 passed by Sessions Judge, Udham Singh Nagar in Sessions Trial No. 306 of 2011, whereby the three accused, namely, Smt. Phoolwa, Muni Maharaj and Shiv Raj who were charged and faced trial for an offence under Section 304 (read with Section 34 of IPC), have been acquitted by the trial court.

The complainant has lodged an FIR against the accused namely, Ms. Phoolwa, and her two sons Muni Maharaj and Shiv Raj that had beaten up her husband on some dispute regarding cutting of few branches of a tree. When an alarm was raised by her husband, other neighbours, namely, Dhaneshwar, Kailash and others came to his rescue and the assailants ran away. The complainant with the help of her neighbours took her husband, who was seriously injured, to Kichha Government Hospital, from where he was referred to the Government Hospital at Rudrapur (District Headquarters). He was taken to the hospital in a No. 108 Ambulance, but in the hospital, he was declared dead by doctors.

The police completed its investigation and thereafter filed a charge-sheet against them under Section 304 of IPC. According to the post-mortem report, it was found that the main cause of death was coma due to the head injury as after opening of the skull a huge clot of blood was found and the frontal bone was also found broken.

On being cross-examined by the defence that such an injury can be caused by falling on the ground, this witness clearly rejected that suggestion and said that such an injury cannot be caused by merely falling on the ground and has been caused by a very heavy blow of “lathi” or by a blunt object.

The trial court came to the conclusion that the recovery of two “dandas” made from Shiv Raj as well as from Muni Maharaj cannot be believed because as far as Shiv Raj is concerned, he is deaf and dumb, and therefore, for this reason, the recovery is doubtful. The trial court had also come to the conclusion that since there was only one injury on the body of the deceased, therefore, the prosecution story is not corroborated by the medical evidence. On this ground, the trial court had acquitted all the accused. Aggrieved by this, the appellant has approached to the High Court.

The division bench consisting of Justice Alok Kumar Verma Justice Sudhanshu Dhulia has come to the conclusion that,
“The observation drawn by the trial court regarding the recovery being doubtful, is totally baseless. Merely because Shiv Raj is deaf and dumb does not make him innocent, or place any doubt on the recovery. Moreover, there are independent witnesses to the recovery who are not police personnel. The recovery cannot be doubted.”

The Court has further held that though there is only one injury the deceased has, but that is on his head. The front of the skull was broken. This itself cannot be a reason for acquitting the accused.

“Most importantly there are at least three eyewitnesses to the incident. Two of them though related to the deceased, yet are the natural witnesses as the incident happened right in front of their house,” the Court added.

Considering the fact that there was no premeditation in the murder and the fact that each of the accused have already remained in jail for about one year and six months, the Court is of opinion that, it would serve the ends of justice, if the accused are sentenced for the period already undergone by them in jail.

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