Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 35 of 2001 Naveen Kumar S/o Sri Ram Darshan Balmiki R/o MOhalla Balmiki Basti, Kankhal Police Station Kankhal, District Haridwar. …………. Appellant Versus State of Uttaranchal ………….. Respondent Mr. Prem Chandra, Advocate for the appellant. Mr. G.S. Sandhu, Government Advocate for the respondent-State. Along with Criminal Appeal No. 109 of 2001 Satish Kumar Balmiki S/o Net Ram Balmiki R/o Mohalla Balmiki Bast, Kankhal Police Station Kankhal, District Haridwar. …………… Appellant Versus State of Uttaranchal ………….. Respondent Mr. R.S. Sambhal, Advocate for the appellant. Mr. G.S. Sandhu, Government Advocate for the respondent-State. Coram: Hon’ble Prafulla C. Pant, J. Hon’ble Dharam Veer, J. Hon. Prafulla C. Pant, J. (Oral) These two appeals, preferred under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), are directed against the judgment and order dated 05.03.2001, passed in Sessions trial No. 102 of 1994 and Sessions Trial No. 103 of 1994, by learned III Additional Sessions Judge, Haridwar, whereby appellant Naveen Kumar is convicted under Section 302 of the Indian Penal Code, 1860 (hereinafter referred as I.P.C.) and appellant Satish Kumar is convicted under Section 302 read with Section 34 of I.P.C., and each one of them has been sentenced to undergo imprisonment for life and also to pay fine of Rs. 1,000/- (in default, the defaulter is directed to undergo further imprisonment for a period of six months). Appellant Naveen Kumar has been further convicted under Section 25/4 of the Arms Act, and sentenced to undergo rigorous imprisonment for a period of one year. 2) Heard learned counsel for the parties and perused the entire evidence on record. 3) The prosecution story in brief is that on 12.09.1991, at about 05:00 P.M., in Mohalla Lattowalla, Kankhal, Haridwar, Sandeep Kumar @ Dimpi (deceased) was stabbed by Satish Kumar and Naveen Kumar (both appellants). They left Sandeep Kumar @ Dimpi in an injured condition and ran away from the scene. P.W. 5 Constable Mahesh, who was passing through the Mohalla took the injured to the District Hospital and got him admitted, where the injured succumbed to the injuries at 06:30 P.M. On the same day, at 07:40 P.M., P.W. 7 Kuldeep Kumar (father of the deceased) lodged the first information report of the incident (Ext. A-3). In the first information report the complainant reported that when he came to know of the stabbing incident, he rushed to the hospital to see his son where his son (Sandeep) before his death told him that he was stabbed on his stomach and chest by accused Satish Kumar and Naveen Kumar, and one Madho Pandit caught hold of him. On the basis of the written first information report, check report (Ext. A -4) was prepared by the Head Constable and necessary entry was made in the general diary (extract of which is Ext. A-5). P.W. 4 Dr. O.P. Sharma conducted the postmortem examination on the next day i.e. 13.09.1991, at about 01:35 P.M., and prepared the postmortem examination report (Ext. A-1). The crime was investigated by P.W. 8 Sub Inspector Saudhan Singh, who apart from inspecting the spot and preparing site plan, recorded the statement of the witnesses under Section 161 of Cr.P.C. and filed charge sheet (Ext. A-11) against accused / appellant Naveen Kumar and one Madho Pandit in respect of the offence punishable under Section 302 of I.P.C. A separate charge sheet is also filed against the accused / appellant Satish Kumar in respect of offence punishable under Section 302/ 34 of I.P.C. A separate charge sheet (Ext. A-15) was also filed against accused / appellant Naveen Kumar for his trial in respect of offence punishable under Section 25 / 4 of the Arms Act, by P.W. 11 Sub Inspector Nathu Lal Verma. During investigation, the knife used in the crime was recovered from accused / appellant Naveen Kumar. 4) The Magistrate, on receipt of the charge sheets, after giving necessary copies to the accused, as required under Section 207 of the Cr.P.C., committed the cases relating to offence punishable under Section 302 of I.P.C., to the court of Sessions, for trial. Since, the main case was committed to the court of Sessions, the Magistrate in his discretion, also committed the case relating to the offence punishable under Section 25 / 4 of the Arms Act, to the court of Sessions, for trial. 5) Learned trial court, after hearing the parties, framed charge of offence punishable under Section 302 read with Section 34 of the I.P.C. against the accuses Satish Kumar and Navin Kumar, on 30.10.1995, to which the accused (present appellants) pleaded not guilty and claimed to be tried. A separate charge was framed against accused Naveen Kumar in respect of offence punishable under Section 25 / 4 of the Arms Act, as the knife used in the crime was said to be recovered from him. (Naveen Kumar pleaded not guilty also to said charge, and claimed to be tried). On this, prosecution got examined P.W. 1, Km. Renu (hostile witness); P.W. 2, Bhupendra (hostile witness); P.W. 3, Surendra Kumar Mittal (hostile witness); P.W. 4 Dr. O.P. Sharma (who conducted the postmortem examination); P.W. 5, Constable Mahesh Kumar Sharma (who took the injured from the place of incident to the hospital); P.W. 6, Manoj Kumar (declared hostile); P.W. 7, Kuldeep Kumar (father of the deceased and complainant); P.W. 8, Sub Inspector Saudan Singh (Investigating Officer); P.W. 9, Nathu Ram (declared hostile); P.W. 10, Head Constable Harish Chandra (who prepared the check report of the F.I.R. and made necessary entry in the general diary); P.W. 11, Nathu Lal Verma (who investigated the crime relating to the recovery of knife from accused Naveen Kumar); P.W. 12, Deepak Kumar (declared Hostile); P.W. 13, Jameel Ahmad (declared Hostile); P.W. 14, Deepak Mishra and P.W. 15, Constable Ram Singh, who prepared inquest report (Ext. A-16). 6) The entire oral and documentary evidence, including the material exhibits, were put to the accused under Section 313 of Cr.P.C. by the trial court, in reply to which the accused (appellants) alleged that the evidence adduced against them is false. It is also alleged by the accused that they have been falsely implicated in the case due to enmity. However, no evidence was adduced in defence. The trial court, after hearing the parties, found accused Naveen Kumar guilty of the offence punishable under Section 302 of I.P.C. and accused Satish Kumar of the offence punishable under Section 302 read with Section 34 of I.P.C. After hearing on sentence, the trial court sentenced each one of them to imprisonment for life and to pay file of Rs. 1,000/-. It is directed by the trial court that in default of payment of fine, the defaulter shall further undergo imprisonment for a period of six months. The trial court further found accused Naveen Kumar (appellant) guilty of offence punishable under Section 25 / 4 of the Arms Act, and after hearing on sentence, sentenced him to rigorous imprisonment for a period of one year. Aggrieved by said judgment and order dated 05.03.2001, passed by the trial court (III Additional Sessions Judge, Haridwar), these two appeals are preferred by the convicts. 7) Before further discussion, it is pertinent to mention here the injuries found on the person of Sandeep (deceased) at the time he was admitted in the hospital. The said injuries are recorded by P.W. 4, Dr. O.P. Sharma, at 06:05 P.M. on 12.09.1991, who prepared Ext. A-2. The same are being reproduced as under:- i) Incised would 1.5 cm X 1.0 cm X muscle deep, right side upper part of chest. 4.0 cm above and at 11 O’ clock position, right nipple. ii) Incised wound 2.0 cm X 1.5 cm X cavity deep, right side of chest at 4 O’ clock position and 8.0 cm below right nipple. iii) Incised wound 1.5 cm X 1.0 cm X chest cavity deep in the middle of chest. iv) Incised wound 1.4 cm X 0.7 cm X muscle deep in the middle of left upper shoulder.” 8) Corresponding to above, ante mortem injuries were found on the body of the deceased at the time of autopsy conducted by P.W. 4, Dr. O.P. Sharma, at 1:35 P.M., on 13.09.1991. On internal examination the Medical Officer found that there was a cut in the right lung. Cut mark was also found on the right ventricle of the heart. According to the Medical Officer the cause of death was due to haemorrhage, as a result of ante mortem injuries. 9) From the above medical evidence it is clear that deceased suffered four incised wounds before his death. It is also apparent from the above medical report that the deceased had died due to excessive haemorrhage, as a result of ante mortem injuries caused on the vital parts. Now, the question before this Court is, who caused injuries on the person of the deceased. 10) Learned counsel for the appellants argued that solely on the basis of oral dying declaration given by the deceased to P.W. 7 Kuldeep Kumar, conviction cannot be based. In this connection, our attention was drawn on behalf of the appellants to the principle of law laid down in Dandu Lakshmi Reddy Vs. State of Andhra Pradesh; 1992 (2) APEX COURT JOURNAL 367 (S.C.) We have gone through said case law. It has no application to the present case, for the reason that in said referred case there were two dying declarations, one recorded by the Magistrate and another by the Sub Inspector of police, and there were contradictions between the two. Learned counsel for the appellants further drew attention of this Court to the case of Arvind Singh Vs. State of Bihar; 2001 (1) APEX COURT JOURNAL 389 (S.C.) and also to the case of Panchdeo Singh Vs. State of Bihar; 2002 (2) CRIMINAL COURT CASES 602 (S.C.). In both these cases, the Supreme Court has disbelieved the dying declaration on the ground that there was no certificate from the Doctor that the deceased was in a fit state of mind to make the statement. In our opinion, none of the two cases are helpful to the appellants, in the present case for the reason that P.W. 4, Dr. O.P. Sharma has stated in his cross examination that when the patient was brought to the hospital, he was conscious. Not only this, at the end of the cross examination the Medical Officer further told that the patient himself disclosed his name and address, at the time he was admitted in the hospital. Since, in the present case, there is statement of the Doctor clarifying the position that the deceased was conscious and able to speak, as such, there is nothing which creates doubt in the statement of P.W. 5 Constable Mahesh, who brought the injured to the hospital, and the statement of P.W. 7, Kuldeep Kumar, father of the deceased, who met his son in the hospital soon after he was admitted there. Both these witnesses have stated on oath that the injured told them that appellants Naveen Kumar and Satish Kumar stabbed him while third accused Madho Pandit caught hold of him. (As per the record, accused Madho Pandit was a juvenile, and he was tried separately). 11) On behalf of the appellants it is also argued that the eyewitnesses of fact have not supported the prosecution story, as such, charge framed against the appellants cannot be said to have been proved. It is pertinent to mention here that it is general tendency of some of public witnesses that due to fear of accused, they avoid to make statement against him. Apart from this winning over the witnesses by accused cannot be ruled out. Perusal of statement of P.W.5 Mahesh Kuma and P.W. 7 Kuldeep Kumar read with medical evidence and other evidence on record, even if not fully supported by hostile witnesses sufficiently proves the charge framed against the appellants. 12) Having gone through the entire evidence on record, we concur with the view taken by the trial court that from the statement of P.W. 5 Constable Mahesh, P.W. 7, Kuldeep Kumar read with statement of P.W. 4, Dr. O.P. Sharma, the charge is sufficiently proved beyond reasonable doubt, against both the appellants. Even P.W. 13 Jameel Ahmad has supported the prosecution story partly stating that he saw the three persons involved in the incident, but he does not know the names of the accused. The mere fact that some of the witnesses produced from the side of prosecution turned hostile is not sufficient to throw out the prosecution case. It is also pertinent to mention here that the first information report in this case is a prompt one, injuries are recorded within one hour of the incident and medical report clearly corroborate what P.W. 5, Mahesh Kumar and P.W. 7, Kuldeep Kumar stated before the court. 13) It is also contended on behalf of the appellants that when there was a cut mark in the heart, it is difficult to believe that the patient was in a condition to speak. The Medical Officer is an expert person to make a statement on this subject and he has opined, after seeing the patient, that he was speaking and was conscious when he was brought to the hospital. Learned counsel for the appellants argued that the doctor was not present when the oral dying declaration was made to the father of the deceased, as such, the same cannot be believed. It is not the prosecution story that the Medical Officer was throughout present till the death of the patient by his side, as such, the above fact does not create any reasonable doubt in the prosecution story. 14) As far as the recovery of knife used in the crime from accused / appellant Naveen Kumar is concerned, the same is also proved from the statement of P.W. 8 Sub Inspector Saudan Singh, who recovered the knife at the instance of the accused / appellant Naveen Kumar and Ext. A -9 regarding recovery of said knife, was prepared. 15) For the reasons as discussed above, in view of the aforesaid discussion, after going through the evidence on record and hearing the parties, we do not see any force in both the appeals. Accordingly, both the appeals are liable to be dismissed. The same are dismissed. Let a copy of this order be sent to the Senior Superintendent of Jail, Sitarganj, where the appellants are serving out the sentences, awarded against them. (Dharam Veer, J.) (Prafulla C. Pant, J.) Dt. January 02, 2008 H. Negi