IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Government Appeal No. 194 of 2001 Old Number Government Appeal No. 122 of 1998 State. ………. Appellant. Versus Jeet Singh and another. ....…. Respondents Present : Sri P.S. Bohara, Brief Holder for the State /appellant. Sri A.S. Rawat, Sr. Advocate assisted by Mr. C.S. Rawat, Advocate for respondents. Hon’ble Servesh Kumar Gupta, J. 1. There is delay of 23 days in the filing the appeal and the same is hereby condoned. 2. The challenge in this appeal has been thrown by State against the judgment and order of acquittal dated 11.02.1998 rendered by Sessions Judge, Nainital in Sessions Trial No. 371 of 1995 titled as State of U.P. Vs. Jeet Singh and another. Learned Sessions Judge concluding the trial acquitted the accused Jeet Singh and Santokh Singh from the charge of Section 307 / 34 IPC. 3. The incident relates back to intervening night of 31.10.1994 and 01.11.1994 when about 10.00 p.m. Smt. Bhuri Devi along with her widow sister Shanti Bai and two daughters were in order to fell asleep in the courtyard of their thatched house. Accused Jeet Singh and Santokh Singh (both sister’s sons) came with an intention to end their life. They began to hurl abuses and Santokh Singh alias Santa Singh opened fire upon Shanti Bai. The bullet hit her right cheek making her severely injured. The presence of both the accused persons was 2 noted by niece Veero and other family members in the light of small kerosene lamp. Accused persons took to their heels after the incident with the threat to kill them in future. Bhuri Devi being a blind lady identified the accused persons from their voice nay the identity of them was disclosed by children present in the house. With the aid and assistance of the villagers Bhuri Devi took Shanti Bai to Government Hospital Khatima but being severely injured they were constrained to take recourse to the bigger and better hospital at Haldwani where she was put under treatment so report could not be lodged on the next day i.e. on 01.11.1994 and it could be lodged only on 02.11.1994 at 04.20 p.m. This report is Exhibit Ka-1 and the Chik Report is Exhibit Ka-3. The matter was investigated by the regular police of Police Station Nanakmatta. The chargesheet was submitted against Jeet Singh and Santokh Singh for the offence under Section 307 IPC. The charge was levelled separately against both the accused persons for the offence under Section 307 IPC. The accused abjured the guilt and claimed trial. The prosecution has examined Bhuri Devi, Shanti Bai both witnesses of facts; PW3 Dr. P.C. Pandey, who examined the injured in the Community Health Centre; PW4 Sub Inspector Pradeep Kumar. Statements of the accused persons under section 313 Cr.P.C. were recorded. They denied the evidence adduced by the prosecution against them and told that the witnesses are inimical against them. 4. Learned Sessions Judge has passed the order of acquittal after appreciation of evidence. This Court having heard learned Brief Holder and learned counsel for the respondents, has re-appreciated the evidence. At the outset, it would be relevant to have note of all the injuries which were found on the body of Shanti Bai on 01.11.1994 at 06.15 a.m. 3 i. 5 cm X 4 cm lacerated wound over the right cheek. Injury is through and through, piercing the right cheek. The right upper jaw broken and displaced towards inside. Margins of the wounds are blackened. Tongue is also lacerated on right side.. Wound is giving slightly foul smell. Keep under observation. Advised x-ray and referred to Base Hospital, Haldwani to consult Surgeon ii. 2 cm X 1 cm X ½ cm lacerated wound over the distal pharynx of right thumb. Keep under observation. Advised x-ray. Margins are blackened. In the opinion of the doctor, both injuries were caused by fire arm and were about half day old. 5. Learned counsel for the accused respondents has relied upon the precedent of Hon’ble Apex Court in the case of Chandrappa and others Vs. State of Karnataka reported in 2007 CRLJ 2136. In the said precedent, the Hon’ble Apex Court has laid down the general principles regarding powers of Appellate Court while dealing with appeal against order of acquittal, which are as follows: “i. An appellate Court has full power to review, re- appreciate and reconsider the evidence upon which the order of acquittal is founded; ii. The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law; 4 iii. Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion. iv. An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. v. If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.” 6. In the instant case, it comes out that the learned trial Judge has gone far from realities, which are constraintly faced by illiterate, rustic, physically handicapped woman, who is devoid of means like masculine protection besides economic weakness. These two ladies, Km. Bhuri Devi (ophthalmic handicapped) and Shanti Bai (widow) living in their thatched house, in the vicinity of accused persons, were devoid of any 5 masculine protection. Obviously, two young accused persons aged about 36 years and 31 years, at the time of incident were strong enough to suppress and overpower them, with aim and objective to grab their agriculture land, which they inherited from their elders. The evidence reveals that both accused persons were sister’s sons of these two ladies and in all probabilities they had nurtured the intentions to get the agriculture land owned by these two ladies, if they succeed to end their life. It is a matter of general perception that in the trai belt of this district Udham Singh Nagar agriculture land is a very costly commodity and there is obsession and passion in the land owners to occupy and owned as much land as they can. The situation was favourable to the accused persons, taking all abovementioned circumstances, it was not unnatural for the accused persons to nurture the object of ending life of these ladies (an easy prey) and this was sole motto for this incident. 7. The finding of the learned trial Judge that: Had the accused persons intended to commit death of these ladies, then there was no reason for the accused Jeet Singh to open fire in air and Santokh Singh would have opened fire either on the head or neck of Shanti Bai rather than to fire on her cheek. This finding of learned trial Judge is very mechanical because when the accused persons attempt to commit the offence the order of their every action, many a times become disturbed to meet exigencies of the situation. The order of their action they determined to adopt many a times varies from what they have thought and planned earlier. When they entered in the house of these ladies, alarm was raised by two children, who recognized the identity of these accused persons and Km. Bhuri Devi (blind lady) recognized the identity of these two persons from their 6 voice. When their assailing temper was noticed by Shanti Bai (injured), it was but natural for her to resist as much as she could. While she was so resisting accused persons at the time of putting cotton in her mouth, naturally she must have extended full physical resistance to her capability to the accused persons, who later became successful in catching hold of her. In that state too, she might not have been meekly surrendered before the accused persons permitting them to open fire on whatever part of her body they intended. In that order of events, accused could open fire only on the cheek of Shanti Bai. It has been in the evidence that villagers Surender Singh, Prem Singh and others assembled there, who carried these ladies including injured one to hospital. In such eventuality, it was just possible that accused persons could not get another chance to open fire in order to achieve their ultimate motive. 8. Learned counsel for the respondents has argued that no other witness, who came to rescue these ladies, has been examined. It would be appropriate to recall the wordings of Hon’ble Apex Court in the case of State of U.P. Vs. Anil Singh reported in AIR 1988 SC 1998. In this case the Hon’ble Apex Court has held that: In the great majority of cases, the prosecution version is rejected either for want of corroboration by independent witnesses, or for some falsehood stated or embroidery added by witnesses. In some cases, the entire prosecution case is doubted for not examining all witnesses to the occurrence. The indifferent attitude of the public in the investigation of the crimes could also be pointed out. The public are generally reluctant to come forward to depose before the Court. It is, therefore, not correct to reject the prosecution version only on ground that all witnesses to occurrence have 7 not been examined. It is also not proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable. With regard to falsehood stated or embellishments added by the prosecution witnesses, it is well to remember that there is a tendency amongst witnesses in our country to back up a good case by false or exaggerated version. It is also experienced that invariably the witnesses added embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true, in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the Court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies of falsehood are so glaring as utterly to destroy confidence in the witnesses. It is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties, which the judge has to perform. 9. Further the Hon’ble Apex Court in the case of State of Himachal Pradesh Vs. Lekh Raj and another reported in 1999 (3) A. Cr. R 2754 has opined that: Criminal trial cannot be equated with a mock scene from a stunt film. The legal trial is conducted to ascertain the guilt or innocence of the accused arraigned. In arriving at a conclusion about the truth, the courts are required to adopt a rational approach and judge the evidence by its intrinsic worth and the animus of the witnesses. The hypertechnicalities or figment of imagination should not be allowed to divest the court of its responsibilities of sifting and weighing the evidence to arrive at the conclusion regarding the existence or otherwise of a particular circumstance keeping in 8 view the peculiar facts of each case, the social position of the victim and the accused, the larger interests of the society particularly the law and order problem and degrading values of life inherent in the prevalent system. The realities of life have to be kept in mind while appreciating the evidence for arriving at the truth. The courts are not obliged to make efforts either to give latitude to the prosecution or loosely construe the law in favour of the accused. The traditional dogmatic hypertechnical approach has to be replaced by rational, realistic and genuine approach for administering justice in a criminal trial. Criminal jurisprudence cannot be considered to be a utopian thought but have to be considered as part and parcel of the human civilization and the realities of life. The courts cannot ignore the erosion in values of life which are a common feature of the present system. Such erosions cannot be given a bonus in favour of those who are guilty of polluting society and the mankind. Hence, non examination of any independent witness or neighbouring one is not a factor for making the basis of acquittal of the accused persons. In another precedent, in the case of Ambika Prasad Vs. Delhi State reported in 2000 AIR SC 718 the Hon’ble Apex Court has held that: It is known fact that independent persons are reluctant to be a witness or to assist the investigation. Reasons are not far to seek. Firstly in cases, where injured witnesses or the close relative of the deceased are under constant threat and they dare not depose truth before the Court, independent witnesses believe that their safety is not guaranteed. That belief cannot be said to be without any substance. Other reason may be the delay in recording the evidence of independent witnesses and repeated adjournments in the Courts. In any case, if independent persons are not willing to cooperate with the investigation, 9 prosecution cannot be blamed and it cannot be a ground for rejecting the evidence of injured eyewitnesses. 10. Undoubtedly, the evidence discloses enmity existing between accused persons and these ladies, due to inheritance of land owned by these ladies. These ladies claimed ownership over the land on the basis of some WILL while same is being claimed by these accused persons on some other basis. But possibility to exonerate the real culprit by these ladies and to implicate the accused persons for this offence is not possible because these ladies are in a very helpless and hapless position to such extent that this blind lady Km. Bhuri Devi took her grievously injured sister Shanti Bai by an Oxen Cart, travelling whole night which was of bitter cold in the starting month of November, to Khatima Tehsil Headquarter Hospital. First, she went along with injured to Police Station Nanakmatta, which is almost 16 kms. away from the place of incident so she reached in wee hours at the Police Station. The finding of the trial Judge that they did not report the matter at Police Station Nanakmatta or Khatima is beyond realistic approach because it was undivided Uttar Pradesh at that time and it is a matter of common and general observation that the entire Police Station in the remote areas remains functional by presence of a Constable or Head Moharir, who dare not to lodge each and every FIR without prior approval of the Station Officer, who invariably is not found there. Otherwise also, the police in the remote areas do not remain inclined to lodge the FIR as quickly as any offence comes to their notice. Fortiori, both these ladies were not so influential to exert any pressure upon responsible policeman or police officer so that their FIR could be lodged promptly. To lodge FIR at Haldwani on next day is much more a remote dream because it was almost 100 kms. away from the 10 place of occurrence and its jurisdiction was quite different. So the observation of learned trial Judge that FIR could have been lodged at Police Station Haldwani is quite unrealistic. This blind lady Bhuri Devi could lodge the FIR on 02.11.1994 at 16.20 hours at Police Station Nanakmatta is quite natural in these circumstances and does not carry any inference of delay in lodging the same. It has been in the evidence that Km. Bhuri Devi could brought her injured sister to Haldwani, as she was referred from Khatima Hospital. In the above helpless and plightful circumstances, this blind lady is not expected to rush immediately from Haldwani to Nanakmatta Police Station, leaving her sister in hospital, to lodge the FIR. Shanti Bai (injured) has well proved the chain of circumstances, which was adopted by the accused persons in order to open fire upon her cheek. The Hon’ble Apex Court in the case of Vahula Bhushan Vs. State of Tamil Nadu reported in 1989 AIR SC 236 has opined that: If the evidence of sole witness found to be cogent and trustworthy and medical evidence corroborates his testimony then conviction based on such evidence is proper. 11. Learned trial Judge has opined that Investigating Officer has taken sample of blood stained soil after eight days. He was amazed that blood stained soil was there after eight days of occurrence and that too was not sent for chemical examination by the Investigating Officer. On this score also, the opinion of this court is that there is no question of amazement for the failure of Investigating Officer in taking sample of blood stained soil after eight days and it was acute winter so leaving the blood stained soil intact for eight consecutive days was not such a unnatural event as to belie the taking of sample by the Investigating Officer. Even if such blood stained soil sample might have been sent for chemical 11 examination, it would yield no result to determine veracity of the incident because happening of occurrence is otherwise well proved. 12. In view of the above, this Court finds that there is formidable evidence adduced by the prosecution, which is indicative to determine the guilt of accused persons and from nowhere it is indicating towards their innocence. 13. Accordingly, the finding of innocence of the accused persons as concluded by the trial Judge is quite perverse and beyond realistic approach towards appreciation of evidence. The appeal is allowed. Judgment and order dated 11.02.1998 is hereby overturned. Accused respondents are found guilty for the offence punishable under section 307/34 IPC. Accused Santokh Singh is sentenced to undergo 5 year rigorous imprisonment and pay fine of Rs. 5000, in default of payment of fine, he shall undergo three months rigorous imprisonment. Accused Jeet Singh is sentenced to undergo 4 year rigorous imprisonment and pay fine of Rs. 3000, in default of payment of fine, he shall undergo two months rigorous imprisonment. 14. Let the accused respondents be taken into custody to serve out sentence, as mentioned above. Copy of this judgment be sent to the court below for compliance. (Servesh Kumar Gupta, J.) 21.10.2011 SKS