IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL (Chapter VIII, Rule 32(2) (b) Description of Case. Criminal Appeal No. 158 of 2007 (Old No. 276/1985) Date of decision :- 17th November, 2007 A.F.R. (Approved for reporting) _____________________________ Not approved for reporting Date :- 17.11.2007 Initials of Judge Note :- Bench Reader will attach this at the top of the first page of the judgment when it is put up before the Judge for signature. HIGH COURT OF UTTARAKHAND, AT NAINITAL Criminal Appeal No. 158 of 2007 (Old No. 276 of 1985) Dhirendra Kumar @ Dhiroo S/o Rajendra Prakash Sharma R/o Village Birauri Police Station Cantt. District Dehradun …Appellant Versus State … Respondent Mr. Lalit Sharma, learned Amicus Curiae for the appellant. Mr. G.S. Sandhu, learned Government Advocate for the respondent- State. Coram: Hon’ble Rajeev Gupta, C.J. Hon’ble J. C. S. Rawat, J. Per Hon’ble J.C.S. Rawat, J. This appeal, preferred under Section 374 (2) of Code of Criminal Procedure, 1973 (for brevity as Cr.P.C.), is directed against the judgment and order dated 14.12.1984, passed by learned Additional Sessions Judge, Dehradun in Sessions Trial No. 64 of 1983, whereby the appellant has been convicted & sentenced to undergo imprisonment for life under section 302 Indian Penal Code, 1860 (for brevity as I.P.C.). 2. The prosecution story, in brief, is that Mani Ram lodged a report Ex.Ka.2 on 02.04.1983 at about 9:05 a.m. at police station Cantt, Distt. Dehradun, alleging therein that his son Surat Singh was a contractor. On the day of Holi, in the year 1983, his son Surat Singh went to celebrate Holi at the residence of accused/appellant Dhirendra Kumar Sharma alias Dhiroo in the evening. In the night, the accused/appellant came to his house and wanted to drag Surat Singh out from the house. The accused/appellant told that Surat Singh while celebrating holi had knocked the doors of his aunt Km. Sunita in the night with evil intention when she was alone in her house. Thereafter, Smt. Raj Kumari, wife of Surat Singh and Mani Ram, father of the Surat Singh prevented the accused/appellant from dragging Surat Singh. The accused/appellant left the house of Surat Singh after giving him threats of dire consequences. It was further alleged that on 01.04.1983, Surat Singh went Dehradun but did not return home till night. Thereafter, the informant started to search out his son Surat Singh in the morning. Jagdish Singh told him that his son was lying dead near the bank of river adjoining to the field of Ratan Singh. His bicycle was also lying there. Hearing this, the informant went to the place of occurrence and saw his son Surat Singh lying dead. When he inquired about this, he was informed by Lal Singh PW2 of village Jantanwala that in the last night at about 7:45 P.M., his son the deceased Surat Singh and accused/appellant came from Dehradun; the deceased took his bicycle from his bicycle stand and they proceeded towards their village. Thereafter, the complainant Mani Ram was informed by Lakhi Ram PW4 and Bahadur Singh PW3 that they saw accused/appellant beating his son Surat Singh by stone at about 8:30 p.m. in the last night. He has further stated in the F.I.R. that his son was murdered by the accused/appellant. On the basis of F.I.R. Ex.Ka.2, chick F.I.R. Ex.Ka.14 was prepared and necessary entry was made in the G.D. The investigation of the case was entrusted to S.O. Rajpal Singh PW11. S.I. Satendra Singh Sirohi PW9 arrested the accused/appellant on 02.04.1983 and prepared the inquest report. As there were marks of injuries on the person of the accused, the accused/appellant was sent to Doon Hospital for medical examination. The I.O. recorded the statement of the witnesses and prepared the site plan Ex.Ka.17. After completing the investigation, the police submitted the chargesheet Ex.Ka.24 against the accused/appellant before the court. 3. After submission of chargesheet, the accused/appellant was committed to the court of Sessions for trial and the trial court framed charge u/s 302 I.P.C. against the accused/appellant. The accused/appellant denied the charge levelled against him and claimed his trial. 4. The prosecution in support of its case examined as many as twelve witnesses. Dr. D.M. Kala PW1 is the medical officer who has medically examined the accused/appellant. Lal Singh PW2 is the witness who has stated that the accused/appellant and the deceased Surat Singh came to his shop in the evening on 01.04.1983 at about 7:30 to 7:45 p.m. and thereafter proceeded for their village. Bahadur Singh PW3 and Lakhi Ram PW4 are the eyewitnesses’ who had seen accused/appellant and the deceased quarrelling with each other. The accused/appellant threw a stone on the deceased and he sustained the injury on his head and he fell down at the spot. Bahadur Singh PW3 has a field near the place of occurrence. Both the eyewitness are known to the accused/appellant and deceased. Khajan Singh PW5 is the scribe of F.I.R. He has scribed the report on the dictation of the informant Mani Ram. Dr. I.F. Nath PW6 is the medical officer who conducted the post-mortem of dead body of the deceased. Smt. Raj Kumari PW7 is the wife of deceased. Mitthan Singh PW8 is the witness in whose presence the accused/appellant was arrested. Satendra Singh Sirohi PW9 was posted as S.I. in P.S. Cantt, Dehradun. He was deputed for the arrest of the accused/appellant. He has also prepared the inquest report Ex.Ka.5. S.O. Rajpal PW11 is the investigating Officer of the case who investigated the case. Later on the investigation was transferred to Sub-Inspector Sukhdev Singh due to transfer of S.O. Rajpal PW11. Constables Ansuiya Prasad PW10 and Isam Singh PW12 are the formal prosecution witnesses. 5. The accused-appellant was examined u/s 313 Cr.P.C. and he has pleaded not guilty to the offence. He has stated that he has falsely been implicated in this case. He has further stated in his statement that there was Yuvak Gram Kalyan Samiti in his village in which he was a member and his brother Vijendra Kumar Sharma DW1 was President. There was illicit distillation of liquor in that area, therefore, he made complaints with the police but the police did not take any action. Thereafter, he reported the matter to District Magistrate. As such, the police personnel had enmity with him. He has further stated that a canal was being constructed in his village in which the contractors were selling cement illegality. He made complaint in this regard and the cement was apprehended but the police did not take any action against the contractors. The contractors were annoyed with him, as such, he has falsely been implicated in this case with the collusion of police. He has further stated that he was not present at the place of occurrence on the date of incident. 6. The accused/appellant in his defence examined Bijendra Kumar Sharma as DW1. He is the elder brother of accused/appellant. He has stated that his brother accused/appellant has falsely been implicated in the case by the police. 7. The learned Sessions Judge on appreciation of the evidence held the accused-appellant guilty and convicted and sentenced him as mentioned above. 8. We have heard learned counsel for the parties and perused the record. 9. At the outset, it needs to be mentioned here that it is not disputed that the deceased Surat Singh died on account of injury sustained by him on the date of occurrence. Dr. I.F. Nath PW6 is the Medical Officer who conducted the postmortem of deceased Surat Singh on 02.04.1983 at about 4:30 p.m. and found the following ante mortem injury on the person of the deceased:- “1. The face and head is flattened from side to side. There are multiple irregular lacerated wounds all over. The face is disfigured and right eye could not be made out. All the bones of skull, base of skull and mandible are pulverized and the brain matter is seen flowing out from all the wounds.” In the opinion of Medical Officer, the death of the deceased was caused due to shock and haemorrhage as a result of ante mortem injury. The doctor has also opined that the injury may be caused by stone in between 8:00 to 9:00 p.m. on 01.04.1983. Thus, it is amply proved that the deceased died on account of the injury sustained by him on the date of occurrence. 10. Now we have to consider as to whether the accused/appellant Dhirendra Kumar @ Dhiroo is responsible for the injury caused on the person of the deceased Surat Singh who succumbed to his injury. The prosecution case rests on direct evidence as well as on the circumstantial evidence. The prosecution in order to prove its case has adduced the evidence of eyewitness Bahadur Singh PW3 who is the resident of village Jantanwala. He has deposed in his evidence that he had taken field of Ratan Singh near the place of occurrence and crop of wheat was growing up in the said field. He used to go in the field in the night in order to protect the crop from the wild animals. On the date of occurrence at about 8:00 to 8:30 p.m., Lakhi Ram PW4 resident of Badhikheel village came from village Jantanwala. He met Bahadur Singh PW3 on the way near his aforementioned field and both of them started talking with each other. They have also smoked. When they were talking with each other, the accused/appellant and the deceased came from Jantanwala side. They were quarrelling and abusing each other. When the accused/appellant and the deceased reached near the field of Bahadur Singh PW3, both of them started pelting stones on each other. He further stated in his evidence that in the meantime, the accused/appellant dealt a stone on the person of the deceased by which the deceased Surat Singh sustained the injury and fell down on the ground. Bahadur Singh PW3 tried to intervene in the melee but the accused/appellant threatened him and asked him to go away from the place of occurrence otherwise he would cause injury on him. On hearing this, Bahadur Singh PW3 went towards his field leaving accused/appellant and deceased at the place of occurrence. He has further stated that on the next day, he came to know that Surat singh was lying dead near the place of occurrence. He informed this fact to Mani Ram, father of the deceased next day. The prosecution has also adduced the evidence of other eyewitness Lakhi Ram PW4. He has corroborated the evidence of Bahadur Singh PW3 on all material particulars. Lakhi Ram PW4 has also stated in his evidence that he has also tried to intervene in the melee but the accused/appellant threatened him and asked him to go away otherwise he would have to fact dire consequences. He saw the accused/appellant throwing stone upon the deceased by which the deceased fell on the ground. This witness has also identified stone Ex.1 by which the accused/appellant has caused the injury on the person of the deceased. He has also deposed that the accused/appellant also asked them not to disclose this fact to anybody and if they disclosed this fact to anybody, he would kill them. This witness has also deposed that the accused/appellant was a criminal. 11. We have gone through the entire evidence of prosecution eyewitnesses, Bahadur Singh PW3 and Lakhi Ram PW4. Both of the witnesses have corroborated each other in all material particulars. The learned Trial Court found the evidence of Bahadur Singh PW3 and Lakhi Ram PW4 to be implicitly truthful and reliable though their presence was attempted to be shown as doubtful. Bahadur Singh PW3 had a field near the place of occurrence where he had sown wheat crop. The sowing of wheat crop by Bahadur Singh PW3 had not been disputed by the defence. He is a natural witness to be present at the spot. Lakhi Ram PW4 was coming from his village and he met Bahadur Singh PW3 on the way and both of them started taking with each other. The evidence of Lakhi Ram PW4 is consistent, cogent and credible. The presence of Lakhi Ram PW4 at the spot is also natural. The presence of Bahadur Singh PW3 and Lakhi Ram PW4 at the place of incident was explained and their evidence cannot be thrown out as unreliable or tainted. Both the witnesses are reliable and the prosecution case disclosed by them is supported by their statement made before the police u/s 161 Cr.P.C. as well as in court. They have supported the prosecution case in all material particulars and no infirmity could be pointed out in their evidence. There were some marginal variations in the testimony of these witnesses given in the Court. The learned Trial Court has noticed these marginal variations while appreciating the evidence of both the witnesses. The minor discrepancies are bound to creep in the testimony of truthful, natural and reliable witnesses when they speak about the details. We have gone through the entire evidence and the contradictions pointed out by the learned Amicus Curiae for the appellant. Unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. It is quite natural that the persons narrate the story in different ways and in different words at different times. The minor discrepancies are bound to creep in the testimony of natural and reliable witnesses. The minor discrepancies in evidence are those which are due to normal errors of observations, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. The discrepancies which have been pointed out by the Amicus Curiae for the accused/appellant in the evidence are on account of normal errors of memory due to mental disposition due to the death of the deceased. By and large the people cannot accurately recall the sequence of the events which took place in short span and reproduce the sequence of events before the Investigating Officer or the Court. In the instant case, the witnesses have narrated the main purport of the incident. The learned Amicus Curiae for the accused/appellant further could not demonstrate us any material contradictions or variations which could lead us to take the evidence of Bahadur Singh PW3 and Lakhi Ram PW4 as unreliable. The defence counsel has cross examined both the eyewitnesses at length but nothing could be elicited in their cross examination to discredit their evidence. Their evidence is consistent and believable. Both the witnesses have come forward with the vivid account of the incident as to how the deceased sustained the injury on his person. After going through the entire evidence of Bahadur Singh PW3 and Lakhi Ram PW4, we do not find any reason to disbelieve version of the prosecution witnesses. We are completely in agreement with the findings recorded by the trial court. 12. The prosecution in support of its case also produced the evidence of Lal Singh PW2 only to corroborate the fact that the accused/appellant and the deceased went together on 01.04.1983 at about 7:30 or 7:45 p.m. from his shop to their village. The prosecution adduced the evidence of Lal Singh PW2 who had stated that he had a shop at Jantanwala and he also runs a bicycle stand. He had further stated that the people coming from their village keep their bicycles with him and when they returned from the city they took their bicycle. He has further stated that on 01.04.1983, the deceased came to his shop in the morning and he kept his bicycle with him and went to the city. In the evening at about 7:30 or 7:45 p.m. on 01.04.1983 the accused/appellant and the deceased came to his shop and the deceased took his bicycle from the stand. He has further stated that he knew the deceased and the accused/appellant since before. They said to him that they would be going to their village and they left to their village. He has further stated that on the next day, he came to know that the deceased was lying on the road near Joon River. He also went at the place of occurrence where the dead body was lying and he informed Mani Ram, father of the deceased that his son Surat Singh and the accused/appellant went to their village in the evening from his shop. Thus, the prosecution has led this evidence to show that the deceased was in the company of the accused/appellant at about 7:30 or 7:45 on 01.04.1983 in the evening and they went together to their village and thereafter the dead body of Surat Singh was found lying on the road on the next day. It is well settled position of law that last seen theory comes into play where the time gap between the point of time when the accused/appellant and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused/appellant being the author of the crime becomes impossible. The evidence of Lal Singh PW2 that accused/appellant and the deceased went together at about 7:45 p.m. on 01.04.1983 to their village. It is also in the evidence that on the next day the dead body of Surat Singh was recovered lying on the road near the river. Dr. I.F. Nath PW6, Autopsy Surgeon has clearly stated that the death could have occurred at about 8:00 to 9:00 p.m. on 01.04.1983. Thus, this circumstance further corroborated the theory of the prosecution. As we have noticed above that the prosecution has established that the deceased was last seen in the company of the accused/appellant at about 7:30 to 8:30 p.m. by Lal Singh PW2, Bahadur Singh PW3 and Lakhi Ram PW4. It is also established that the accused/appellant and the deceased were quarrelling with each other and they were hurling abuses on each other. It is also established in the evidence that the accused/appellant and the deceased were pelting stones on each other and the deceased sustained the stone injury on his person by throwing of a stone by the accused/appellant due to which the deceased Surat Singh fell down on the ground. Thereafter, the dead body was found lying on the road at the place of occurrence where lastly the quarrel was seen by Bahadur Singh PW3 and Lakhi Ram PW4. Thus, it is apparent that the deceased was in the company of the accused/appellant till 8:30 p.m. It is also established that there was quarrel in between the accused/appellant and the deceased. The aforesaid fact has been established by the evidence of Bahadur Singh PW3 and Lakhi Ram PW4. Thereafter, the deceased was never seen alive and his dead body was found in the morning on 02.04.1983. In the aforesaid circumstances, it was obligatory on the part of the accused/appellant to satisfy the court as to when and in what manner the deceased parted the company of the accused/appellant. An explanation should have come from the side of the accused/appellant in this case. In the instant case, the entire evidence of last seen adduced by the prosecution was put to the accused/appellant u/s 313 Cr.P.C. He has admitted that he was arrested on 2nd April, 1983 at about 9:00 a.m. from the place of occurrence but he had merely denied the entire evidence. The accused/appellant has failed to discharge his obligation. In the statement recorded u/s 313 Cr.P.C. he has not taken any specific stand whatsoever. He has not given any explanation in this regard. On the contrary, the prosecution has been able to establish the fact that on the date of occurrence, the deceased was in the company of accused/appellant. We have noticed that the prosecution has established this fact by credible and cogent evidence. We are completely in agreement with the findings recorded by the Trial Court that the prosecution has established that on the date of the occurrence the deceased came to the shop of Lal Singh PW2 alongwith the accused/appellant. Thereafter, they went together towards their village. When they reached near the place of occurrence, a scuffle took place in between then and they started pelting stones on each other. It is also established by the evidence of Bahadur Singh PW3 and Lakhi Ram PW4 that the accused/appellant dealt a stone blow on the head of the deceased by which the deceased fell on the ground. The accused/appellant also told Bahadur Singh PW3 and Lakhi Ram PW4 to leave the place of occurrence and not to intervene in the melee to save the deceased otherwise they would have to face dire consequences. They were also threatened not to disclose this fact to any other persons. It is also in the evidence that the accused/appellant was criminal. Therefore, in absence of any specific explanation from the accused/appellant in this regard and in view of the evidence of Bahadur Singh PW3 and Lakhi Ram PW4 against the accused/appellant having been proved by the prosecution, an adverse inference will have to be drawn against the accused/appellant as to his part in the missing of the deceased Surat Singh. The Hon’ble Apex Court has held in catena of decisions that if the prosecution establishes that the missing person was last seen in the company of the accused and was never seen alive thereafter then it is obligatory on the part of the accused to explain the circumstances in which the missing person and the accused parted company. The Hon’ble Apex Court in the case of Joseph Versus State of Kerala (2000) 5 SCC p/197 has held as under :- “14. The incriminating circumstances enumerated above unmistakably and inevitably lead to the guilt of the appellant and nothing has been highlighted or brought on record to make the facts proved or the circumstances established to be in any manner in consonance with the innocence at any rate of the appellant. During the time of questioning under Section 313 CrPC, the appellant instead of making at least an attempt to explain or clarify the incriminating circumstances inculpating him, and connecting him with the crime by his adamant attitude of total denial of everything when those circumstances were brought to his notice by the Court not only lost the opportunity but stood self-condemned. Such incriminating links of facts could, if at all, have been only explained by the appellant, and by nobody else, they being personally and exclusively within his knowledge. Of late, courts have, from the falsity of the defence plea and false answers given to court, when questioned, found the missing links to be supplied by such answers for completing the chain of incriminating circumstances necessary to connect the person concerned with the crime committed…..” 13. The Apex Court in the case of Mani Kumar Thapa Vs. State of Sikkim reported in 2002 SCC (Cri) 1637 has held in para 6 as under:- “6. ………….. If we analyse the prosecution evidence further, it is seen that in regard to traveling in the jeep from where they picked up the deceased then on to Ramam Checkpost and back, we see the appellant has given 3 different versions on 3 different occasions. To PW 5 he stated that while taking the deceased towards Singla from the checkpost, he allowed him to run away from the jeep after they crossed Ramam Checkpost when A-1 had got down from the jeep to ease himself. To PW 36 he told that when they were bringing a smuggler from Darjeeling side to Ramam Checkpost i.e. from the opposite direction the smuggler escaped from the jeep and in the process of running he fell down and suffered fatal injuries. In his statement under Section 313 CrPC before the court, he stated that on 12-2-1988 he had gone to Soreng on the orders of his SP as the Chief Minister was visiting Soreng and on the evening of