Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 150 of 2002 H ayat Singh Bora ...…………. Appellant Versus State of Uttarakhand ...…………. Respondent Mrs. Pushpa Joshi, Sr. Advocate assisted by Mr. Rajesh Sharma and Mr. Chetan Joshi, Advocates for the appellant. Mr. Amit Bhatt, Additional Government Advocate for the State. JUDGMENT Coram : Hon’ble Barin Ghosh, C. J. Hon’ble U.C. Dhyani, J. Per: U.C. Dhyani, J. This appeal, preferred under Section 374 of the Code of Criminal Procedure, 1973 (for short Cr.P.C.), is directed against the judgment and order dated 12.06.2002, passed by Sessions Judge, Pithoragarh in Sessions Trial No. 10 of 1999, whereby accused / appellant Hayat Singh is convicted under Section 302 of Indian Penal Code, 1860 (hereinafter referred as I.P.C.) and sentenced to imprisonment for life, and directed to pay fine of ` 20,000/- in default of payment of which he has been further directed to undergo imprisonment for a period of one year. 2 2. Heard learned counsel for the appellants, learned Addl. Government Advocate for the State, learned counsel for the complainant and perused the lower court record. 3. Prosecution story, in brief, is that, Sapan Kumar Sarkar lodged a first information report (Ext. Ka-1) with police station Didihat, District Pithoragarh stating therein that on 27.01.1999, he along with Dayal Kumar Haldhar, Ravindra Nath Mandal, Chiranjeet Roy were talking to each other in the courtyard of rented accommodation of Asit Kumar Mandal, who is known to them and is an associate of Kanyal Painter. At about 01:30 P.M. his neighbour Hayat Singh Bora, who is a vegetable vendor, came there hurling abuses on Asit Kumar Mandal complaining that he keeps ill-will towards him. He took out a knife from his pocket, pounced upon Asit Kumar Mandal and in an attempt to kill him struck two blows of knife on his chest. Sapan Kumar Sarkar (informant) and others rushed to save him, but by then Asit Kumar Mandal started yelling due to injuries suffered by him and blood started pouring out of his chest. In the meantime, Hayat Singh fled from the scene of occurrence wielding knife and threatening them. Asit Kumar was immediately taken to hospital where he succumbed to the injuries suffered by him. It is also mentioned in said report that Hayat Singh Bora had killed Asit Kumar and his dead body is in the hospital. On the basis of said first information 3 report, chik FIR (Ext. Ka-7) of the incident was lodged against the accused on 27.01.1999 i.e. on the same day of incident. 4. The police took the dead body in their possession, and prepared inquest report (Ext. Ka-9) and other necessary papers, and the dead body was sent in a sealed cover for postmortem examination to District hospital, Pithoragarh. The postmortem examination was conducted by Dr. D.S. Nabiyal (P.W.2) on 28.01.1999, at 12:15 P.M. and prepared autopsy report (Ext. Ka-2). The Medical Officer found two ante mortem injuries on the body of the deceased, and opined that the deceased had died of shock and haemorrhage due to ante mortem vital organ injury. The police started the investigation and accused / appellant Hayat Singh Bora was arrested on 27.01.1999 i.e. on the same day, and the blood stained knife used in the commission of murder was also recovered on the disclosure made by him. A memorandum of recovery (Ext. Ka-3) was got prepared in the presence of the witnesses. P.W.4 S.I. B.B. Yadav also recovered blood stained soil, simple soil as well as blood stained clothes of the accused from the lintel where the murder took place. He also sent the case property to Forensic Science Laboratory for chemical analysis. After interrogating the witnesses, and on completion of investigation, charge sheet (Ext. Ka-5) was filed against the accused / appellant Hatat Singh Bora relating to offence 4 punishable under Section 302 of I.P.C. On 12.07.1999, a report (Ext. Ka-6) was received from the Forensic Science Laboratory, Agra in relation to the chemical analysis of the blood stained knife and blood stained clothes of the accused. It was mentioned in said report that human blood was found present on the clothes of the accused. However, as to the knife, it is mentioned that bloodstains in said weapon could not be classified, as the same were found disintegrated. 5. The Magistrate, on receipt of the charge sheet, after giving necessary copies to the accused, as required under Section 207 of Cr.P.C., committed the case to the court of sessions for trial. Learned Sessions Judge, Pithoragarh on 20.05.1999, after hearing the parties, framed charge for the offence punishable under Section 302 of I.P.C. against the accused / appellant Hayat Singh Bora, who pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W.1 Sapan Kumar Sarkar (informant and eyewitness); P.W.2 Dr. D.S. Nabiyal (who conducted the postmortem examination); P.W.3 Dayal Kumar Haldhar (another eyewitness); P.W.4 S.I. B.B. Yadav (Investigating Officer); P.W.5 S.I. Bansidhar Sharma (in whose presence inquest report was prepared) and P.W.6 Constable Chandra Shekhar (member of arresting party). The oral and documentary evidence was put to the accused under Section 313 of Cr.P.C., in reply to which he alleged the same to be false and stated that he 5 has been falsely implicated in the crime. In defence D.W.1 Bahadur Singh Bafila (neighbour of the deceased) was produced. The trial court, after hearing the parties, found accused / appellant Hayat Singh Bora guilty of charge of offence punishable under Section 302 of I.P.C. After hearing the parties, the trial court sentenced convict Hayat Singh Bora to imprisonment for life under Section 302 of I.P.C., and directed to pay fine of ` 20,000/-. Aggrieved by said judgment and order dated 12.06.2002, the convict preferred this appeal. 6. Before proceeding for further discussion, we think it just and proper to mention here the ante mortem injuries found on the body of deceased Asit Kumar by P.W.2 Dr. D.S. Nabiyal. The same are being reproduced below: i) Incised wound and penetrating sharp edged over midline of chest between medial ends of two clavicles, size 2 cm X 0.8 cm cutting the corner of upper end of sternum 6 cm in depth going obliquely towards right side. ii) Penetrating wound sharp edged over left side chest sat and obliquely upwards 5.5 cm from upper sternum, 2 cm X 0.5 cm in size. The Medical Officer opined in the autopsy report that deceased had died of shock and haemorrhage due to ante mortem vital organ injury. 6 7. Now let us proceed to examine the oral testimony of the prosecution witnesses. Most important evidence is that of P.W.1 Sapan Kumar Sarkar who is the informant as well as the eyewitness. 8. P.W.1 Sapan Kumar Sarkar has stated that the accused Hayat Singh Bora belongs to Didihat. This witness knows the deceased Asit Kumar Mandal as well as the accused. Asit Kumar Mandal was known to Dayal Kumar Haldhar, Ravindra Nath Mandal and Chiranjeet Roy. Asit Kumar Mandal, painter was an associate of Kanyal Painter and used to reside in a rented house at Didihat. Hayat Singh Bora committed murder of Asit Kumar Mandal in his presence on 27.01.1999 around 01:00-01:30 P.M. He was standing at the roof top of Asit Kumar Mandal. Dayal Kumar Haldhar, Ravindra Nath Mandal and Chiranjeet Roy were also present there. Accused / appellant Hayat Singh Bora started hurling abuses at Asit Kumar and complained that he (Asit) is inimical to him (Hayat). On this, he took out knife from his pocket and gave two knife blows on the chest of Asit Kumar. They tried to save him, but to no avail. Asit Kumar was taken to hospital but he died. Accused fled away from the place of incident. This witness got the FIR (Ext. Ka-1) lodged in police station Didihat. In the cross- examination he has stated that his dispensary is at a distance of 200-250 feet from the place of occurrence. He is running the dispensary since 1996. They are 7 original residents of Calcutta, but later on they were settled in Udham Singh Nagar. On the fateful day, about 10-15 persons had come to his dispensary and it was an off season. P.W.1 Sapan Kumar Sarkar further stated that he opened his dispensary at 09:00 A.M. He could not close his dispensary at 05:00 P.M. that day because of this occurrence. He was disturbed by the said incident and remained confined to his house. He got the FIR lodged around 02:00 P.M. The parentage of the accused was disclosed to him by Ravindra Nath Mandal. He wrote the complaint while sitting in the house of Basant Lal Sah. He reached the hospital within 10-15 minutes. All the witnesses accompanied him to hospital and then he came back to his dispensary. Thereafter the police arrested the accused and got the blood stained knife used in the commission of crime recovered from the bushes behind the house where the occurrence took place. In response to a question posed by the court, this witness has stated that the accused got the knife recovered on the asking of policemen. He is not aware when the accused was arrested. The knife was recovered at about 04:30 P.M. The police has collected blood stained soil from the spot and an inquest report was prepared in his presence. The deceased was brother-in-law through wife of this witness. There is a lintel of 6-7 rooms where the murder took place. One Bafila, a petition writer by profession, resides in the neighbourhood of Ravindra Nath Mandal. The adjoining room to Bafila was vacant 8 and on the other side Dayal Kumar Haldhar and Chiranjeet Roy were residing. The shop of the accused lay on the ground floor of Asit Kumar Mandal’s residence. When the accused inflicted knife blows on Asit Kumar Mandal, he was at a distance of 8-10 feet from this witness, and all the witnesses were present at the lintel of Bafila’s room. The accused climbed the stairs and then reached the rooftop. The murder took place on the roof of Asit Kumar Mandal. The rooms for Bafila and that of the deceased were on same lintel. The deceased was grounded on the roof itself. All the four witnesses were present who saw this incident. This witness (P.W.1 Sapan Kumar Sarkar) has denied that he has not seen such an incident. He is also witness to the recovery of knife from the accused which was used in the commission of murder. The knife was recovered from the bushes near the place of occurrence. 9. Thus, P.W.1 Sapan Kumar Sarkar is the person who has lodged FIR and has also seen the occurrence. His testimony is intact, in as much as nothing has come out in the cross-examination which may cast shadow on his ocular testimony. His testimony inspires confidence, his relationship with the victim notwithstanding. He is a person who has witnessed this gruesome murder in a most natural way. 10. P.W.2 Dr. D.S. Nabiyal has conducted postmortem examination on the dead body of deceased 9 Asit Kumar Mandal and has found some ante mortem injuries on his body which have been referred to paragraph no. 6 of the body of the judgment. This witness has proved his report (Ext. Ka-2). Some hypothetical questions were asked from this witness in the cross-examination which do not adversely affect the prosecution story, in as much as the questions asked from this witness are nobody’s case. The ocular evidence of P.W.1 Sapan Kumar Sarkar thus receives support from the medical evidence of P.W.2 Dr. Nabiyal. 11. P.W.3 Dayal Kumar Haldhar’s evidence also assumes importance in the wake of the fact that his ocular testimony to this broad daylight murder may go a long way in establishing guilt against the accused / appellant. 12. P.W.3 Dayal Kumar Haldhar is another eyewitness, who has fully supported the prosecution story in his examination-in-chief. He has corroborated the testimony of P.W.1 Sapan Kumar Sarkar that on 27.01.1999, at about 01:30 P.M., the accused Hayat Singh Bora had killed Asit Kumar Mandal alias Basi Ram with knife. The police had interrogated this witness soon thereafter at 03:45 P.M., and got the blood stained knife recovered from the bushes on the disclosure and pointing of the accused. This witness 10 has also proved his signatures on recovery memo (Ext. Ka-3). P.W.3 Dayal Kumar Haldhar has stated in the cross-examination that Bahadur Singh Bafila resides there with his family. P.W.1 Sapan Kumar has a clinic in Didihat which is 15-20 meters away from the house of Basant Lal Sah. Sapan Kumar also resides in his residence-cum-clinic. The deceased was brother-in-law of Sapan Kumar. Chiranjeet Roy and one Subodh Mandal had been engaged in some work near Govt. Intermediate College, and only Chiranjeet Roy had come to the residence for lunch. This witness has also disclosed his normal routine of going to the work place and coming back to home. On the fateful day, they were engaged in construction of house of one Kanyal Painter. According to this witness, Sapan Kumar had gone to lodge the FIR after the death of Basi Ram alias Asit Kumar Mandal. The witnesses were empty handed and the accused was having a knife. They did not chase the assailant. The accused was arrested at a distance of 400-500 meters, at 03:35 P.M. The accused had climbed stairs to come to the roof. The shop of the accused is situated on the ground floor of the residence of the deceased. In the front of the place of occurrence is the residence of Bafila. The accused had hurled abuses at Asit Kumar Mandal. Five persons were there on the roof when this incident took place. The knife was about 15-16 cm in length and the blade of the knife was 1-1.5 cm in width. P.W.3 Dayal Kumar Haldhar is witness of the murder as well as recovery of knife at the 11 pointing of the accused. The accused disclosed to the police that he could get the knife recovered which is hidden by him. The accused tried to run away but was apprehended (by the police). The knife was recovered from the bushes and was sealed on the spot. Blood stained soil and the simple soil was also taken by the police from the roof and a memo to this effect was prepared on the roof itself. 13. Thus, this witness was subjected to a lengthy cross-examination, but nothing has come out in it, which may help the accused / appellant. In other words, his testimony remained intact. Minor variations here and there are not going to affect the prosecution story in any way. His testimony has a great bearing on the outcome of the case. He too is the most natural witness to the incident. He is a disinterested witness, whose ocular testimony inspires great confidence. His eyewitness account strengthens prosecution story. 14. Thus, two eyewitnesses P.W.1 Sapan Kumar Sarkar and P.W.2 Dayal Kumar Haldhar have fully corroborated the prosecution story. It cannot be assumed by any stretch of imagination that they are chance witnesses or they have not seen the ghastly murder committed by the accused / appellant Hayat Singh Bora. There is direct evidence of committing the murder by the accused / appellant Hayat Singh Bora. The motive attributed to the commission of crime is 12 that the deceased keeps ill will towards this accused / appellant and this fact had instigated the assailant to commit the murder. Thereafter, the assailant ran away from the spot, but was arrested without loss of reasonable time. FIR was promptly lodged. There is no delay in filing the FIR. The medical evidence fully supports the ocular version, and therefore, nothing much is left in the case to come to the conclusion that the accused / appellant has committed the murder of Asit Kumar Mandal in broad daylight in the presence of the witnesses. This is a case of direct evidence. The witnesses are neither partisan witnesses nor chance witnesses. They are natural witnesses. Major contradictions or variations in their testimony are not there. Natural variations do not affect the prosecution story when there is direct evidence duly supported by the medical evidence. Even if it be assumed for the sake of argument that separate disclosure memo is not there as argued by learned counsel for the accused / appellant, but that hardly affects the veracity of the prosecution story, in as much as the prosecution has been able to prove its case beyond reasonable doubt, even in the absence of evidence under Section 27 of the Indian Evidence Act. 15. P.W.4 S.I. B.B. Yadav is the Investigating Officer who has conducted investigation of the case. He visited the spot, prepared site plan of the place where the knife used in the commission of crime was 13 recovered. Earlier S.I. Raksh Pal Rathi was the Investigating Officer. The investigation of the case was concluded by P.W.4 S.I. B.B. Yadav, who submitted charge sheet (Ext. Ka-5). This witness has proved the report received from the Forensic Science Laboratory, Agra (Ext. Ka-6). 16. P.W.5 S.I. Bhansidhar Sharma has proved chik FIR (Ext. Ka-7) and copy of extract of General Diary (Ext. Ka-8). He is also a witness of preparation of inquest report (Ext. Ka-9) and other documents from Ext. Ka-10 to Ext. Ka-19. Nothing worth substance has come in his cross examination accept the important fact relating to secondary evidence that it is within his conscious knowledge that S.I. Raksh Pal Rathi is unable to move or speak. That aspect too helps the prosecution agency to prove its case. 17. P.W.6 Constable Chandra Shekhar is also a member of the arresting party, who arrested the accused / appellant Hayat Singh Bora and he confessed his guilt to him. The blood stained knife (Ext. 1) was recovered at the disclosure and pointing of the accused, recovery memo of which was prepared and is available on record as Ext. Ka-3. 18. One witness was produced by the accused / appellant in his defence. D.W.1 Bahadur Singh Bafila says that he is petition writer in court compound 14 Didihat. His normal routine is that he goes for his work at 10:00 A.M. and returns by 05:00 P.M. Sometimes he comes for lunch (to his residence) and sometimes he avoids it / skips it. When he comes for lunch it is usually 01:00 P.M. The day Asit Kumar Mandal was lying in his courtyard, he did not come for lunch. We don’t know why this witness was produced by the appellant in his defence. His examination-in-chief itself does not support the accused / appellant. What for he has been presented as D.W.1? In his cross-examination he has said that Asit Kumar alias Basi Ram, painter, used to reside in his neighbourhood. He along with the deceased Asit Kumar were tenants in the house of Basant Lal Sah and on 27.01.1999, vegetable vendor Hayat Singh Bora was also a tenant in the house of Basant Lal Shah. He doesn’t have the personal knowledge about the death of Asit Kumar Mandal. 19. Much emphasis was laid by learned counsel for the appellant on the fact that the recovery memo (Ext. Ka-3) does not bear the signatures of the accused. Be that as it may, we have mentioned above that the prosecution story has been proved beyond reasonable doubt with the help of direct evidence sans recovery memo. Recovery memo is such a document which usually helps the prosecution in establishing its case when they are harping on circumstantial evidence. This is a case in which the ocular evidence of two non- partisan, natural witnesses is there, fortified by the 15 medical evidence. So there is no sense in disbelieving the prosecution story merely on the strength of the arguments forwarded by learned counsel for the accused / appellant that there is no disclosure statement and recovery memo (Ext. Ka-3) does not bear the signatures of the accused / appellant. Another argument which was advanced on behalf of the accused / appellant is that the weapon is not connected with the crime on the basis of the report of Chemical Analyst (Ext. Ka-6). It may be mentioned here that the report nowhere states that this is not the knife which was used in the commission of crime. It simply says that the blood clots on knife were disintegrated. Prosecution is fortunate in the sense that the report of the Chemical Analyst has been received in this case. Experience has it that there are thousands of cases in which the report of the Chemical Analyst is not received and the cases are decided even in the absence of such a report. Even otherwise, in this case the report of Chemical Analyst does not suggest negative. Where will you throw the direct oral testimony of the witnesses? Will you throw them simply on the ground that the blood on the knife was found disintegrated? The way the deceased had died is gruesome. The assailant has pierced the knife into the upper torso. That is nothing but a brutal murder. 20. The next argument which was placed before us is that the witnesses are the interested witnesses. The 16 accused has been roped in the crime falsely. It is also submitted on behalf of the accused / appellant that both these eyewitnesses are relative of the deceased. We are of the view that they are the most natural witnesses who have seen this broad daylight killing of the deceased. They are non-partisan and disinterested witnesses. Living amongst the friends and persons of one’s own community is not sin. Therefore, we do not find any weight in the arguments of learned counsel for the accused / appellant. Yet, the next argument advanced on behalf of the accused / appellant is that P.W.1 Sapan Kumar Sarkar is the witness of preparation of inquest report as well as the witness of recovery. The distance between these two places is 4-5 km. We are of the opinion that there is no element of substance in it because the incident took place at 01:00-01:30 P.M., inquest report was prepared in the hospital on 27.01.1999, at 04:00 P.M. and the knife was recovered from the bushes on the pointing out of the accused on the same day, although within a short span of time. We are unable to persuade ourselves to accept the contention of learned counsel for the accused / appellant that this witness is a partisan witness. Cold calculations are normally avoided in intangible. 21. Lastly, it is argued on behalf of the accused / appellant that four persons were there in the vicinity and they could have saved the victim from killing and they did not try to apprehend the culprit also. We are of the 17 view that sometimes the incidents are so stunning that everything freezes. So stunning that the persons witnessing the incident are not able to do anything. Another blow of knife to any witness might have landed him in the hell or heaven. How powerful the knife can be? There is a small island named Falkland Islands in the South Atlantic Ocean. It is overseas territory of the United Kindgom (in possession of the British). Argentina wanted to take it. In order to save Falkland Islands from Argentina, British took Nepalese to the war front. They took their khukhri and all the Argentines fled away. This incident shows how strong a knife can be! 22. For the reasons as discussed above, the appeal is liable to be dismissed. The same is accordingly dismissed. The conviction and sentence recorded by the trial court against the accused / appellant Hayat Singh Bora is affirmed in respect of offence publishable under section 302 of I.P.C. The accused / appellant is on bail. His bail is cancelled. He is directed to surrender before the court concerned to serve out the sentence awarded by the trial court against him. Let lower