IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Criminal Appeal No. 1973 of 2001 (Old No. 46 of 1996) Buddu Khan S/o Nyardar Khan R/o Mohalla Fauji Math Kota P.S. Rudrapur District Udham Singh Nagar (Old District Nainital) …..Appellant. Versus State of U.P. ….. Respondent. Shri Mahesh Chandra Pant, learned Amicus Curaie, for the appellant. Shri Amit Bhatt, learned A.G.A. for the State. Coram: Hon’ble Prafulla C. Pant, J. Hon’ble Dharam Veer, J. Oral:- Hon’ble Prafulla C. Pant, J. This appeal, preferred under Section 374 (2) of Code of Criminal Procedure, 1973 (herein after referred as Cr.P.C.), is directed against the judgment and order dated 20.07.1996, passed by IInd Additional Sessions Judge, Nainital, in Sessions Trial NO. 02 of 1994, whereby accused/appellant Buddu Khan, is convicted under Section 302 of Indian Penal Code, 1860 (herein after referred as I.P.C.), and sentenced to undergo imprisonment for life. 2. Heard learned counsel for the parties and perused the lower court record. 3. Prosecution story in brief is that on 18.09.1993, at about 8:00 p.m. in Village Fauji Math Kota, within the limits of P.S. Rudrapur (now part of District Udham Singh Nagar), accused/appellant Buddhu Khan and deceased Dinesh Oli were sitting together on a cot. P.W. 1 Girish Chandra Chaturvedi was also present there. In his presence, accused Buddhu Khan, protested to Dinesh Oli (deceased) as to why did he bite on his cheek in the presence of his wife. Thereafter, P.W. 1 Girish Chandra Chaturvedi had left the place. When P.W. 1 Girish Chandra along with P.W. 5 Tejpal and one Jai Prakash again came towards near the office of Co- operative Society where earlier aforesaid incident had taken place, they saw Buddhu khan hitting with a brick on the head of Dinesh Oli, and was saying that he will give the deceased (Dinesh Oli) taste of biting the cheek. The three eye-witnesses rushed and caught hold of accused/appellant Buddu Khan. However, he escaped after freeing himself. The report of the incident was lodged by P.W. 5 Tejpal Singh with P.S. Rudrapur on the very day i.e. on 18.09.1993, at about 9:30 p.m. after getting it scribed from one Dharampal. P.W. 3 Constable Ved Pal, who received the Fist Information Report, prepared check report (Ext. A-6) and made necessary entry in the general diary, a copy of which is Ext. A-7. The crime was initially investigated by Sub Inspector Surendra Singh Dagri (P.W. 7). He went to the spot and got prepared inquest report (Ext. A-4) on 19.09.1993, at 2:00 a.m. after taking the dead body of the deceased in his possession. He also prepared site plan (Ext. A-15). The police also got prepared other necessary papers, sketch of the dead body (Ext. A-13), police form No. 13 (Ext. A-10) and letter (Ext. A-14) to the Chief Medical Officer, requesting him for getting done the autopsy. P.W. 4 Constable Pramod Kumar took the dead body in a sealed condition for post mortem examination to Soban Singh Jina Hospital, Haldwani and handed it over for the purpose. P.W. 2Dr. A.S. Singh conducted the post mortem examination on 19.09.1993, at about 1:00 p.m. on the dead body of deceased Dinesh Oli and prepared report (Ext. A-5). He opined that cause of death was ante mortem Injuries on the skull bone and effusion of blood into the brain matter. Meanwhile, it appears that investigation was taken over by P.W. 6 Prem Singh Ahlawat, Inspector, who after interrogation of the witnesses, and completing the investigation, submitted charge sheet (Ext. A-9) to the Magistrate concerned. 4. The Magistrate, on receipt of charge sheet, after giving necessary copies to the accused, as required under Section 207 Cr. P.C., committed the case to the Court of Sessions for trial. Learned IVth Additional Sessions Judge, Nainital, to whom initially the case was transferred, after hearing the parties, on 01.03.1994, framed charge of offence punishable under Section 302 I.P.C. against accused/appellant Buddhu Khan for commission of murder of Dinesh Oli, to which he pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1 Girish Chandra Chaturvedi, an eye witness, P.W. 2 Dr. A.S. Singh, who conducted post mortem examination on the dead body of the deceased, P.W. 3 Constable Ved Pal, who took dead body in a sealed condition for post mortem examination, P.W. 4 Constable Pramod Kumar, who prepared the check report of the First Information Report and also made entry in the general diary, P.W. 5 Tejpal Singh, Complainant and another eye-witness, P.W. 6 Prem Singh Ahalawat, who concluded the investigation and P.W. 7 Sub-Inspector Surendra Singh Dagri, who started investigation. The oral and documentary evidence adduced by the prosecution was put to the accused under Section 313 Cr.P.C. in reply to which he alleged the same to be false. However, no evidence in defence was adduced on behalf of accused/appellant. After hearing the parties, learned IInd Additional Sessions Judge, Nainital, to whom the case was finally transferred, found accused/appellant Buddhu Khan guilty of charge of offence punishable under Section 302 I.P.C. after hearing on sentence, he sentenced the convict to imprisonment for life. Aggrieved by said judgment and order dated 20.07.1996, passed by IInd Additional Sessions Judge, Nainital, in Sessions Trial No. 02 of 1994, this appeal was filed before Allahabad High on 24.09.1996. The appeal is received by this Court by transfer under Section 35 of U.P. Reorganisation Act, 2000, for its disposal. 5. Before further discussions, we think it proper to mention the ante mortem injuries found by P.W. 2 Dr. A.S. Singh, who conducted post mortem examination on dead body of Dinesh Oli and prepared autopsy report (Ext. A-5). The ante mortem injuries recorded in said report are being reproduced below:- 1. Abraded contusion over right side of face, temple, forehead and bridge of nose in an area of 15 cm x 12cm. 2. Lacerated wound over right forehead 05 cm x 1 ½ x bone deep, 02cm above right eyebrow. 3. Lacerated wound over right side of head, 07 cm above the right ear in an areas of 04cm x 02cm x bone deep. 4. Lacerated wound over left side of forehead, 03cm x 01cm x bone deep, 03 cm above left eyebrow. The Medical Officer opined that under injuries No. 2,3 and 4, skull bones were found fractured. On internal examination, he found right parietal, right temporal and frontal bones, fractured under aforesaid injuries. Membranes were found congested and lacerated. Brain was found congested, large haemotoma was present under the aforesaid three injuries (No. 2,3 and 4). Cause of death in the opinion of the doctor was ante mortem injuries on the skull bone and effusion of blood into the brain matter. 6. From the above medical evidence, it is clear that Dinesh Oli died homicidal death. Now this Court has to see who caused death of Dinesh Oli and whether such act on the part of the person causing death was to commit culpable homicide amounting to murder or not. 7. P.W. 1 Girish Chandra Chaturvedi, and eyewitness, who was got examined by the prosecution, has stated on oath that on 18.09.1993, at about 7:30-7:45 p.m. He was proceeding towards his house from field. When he reached near co-operative society office, Dinesh Oli (deceased) was sitting with Baddu Khan (accused/appellant). The witness further states that he knew both the persons. They were talking among themselves. P.W. 1 Girish Chandra Chaturvedi further narrates that Dinesh Oli had put off his pants and shirt at that time. The two started quarrelling and Buddu Khan proteseted to Dinesh Oli as to why he had bitten on his cheek in the presence of his wife. The witness further states that he took it as a routine quarrel between the two and proceeded further. On his way, he met Tehjpal Singh (P.W. 5) and Jai Prakash and told them about the quarrel being developed between the deceased and the accused. On this, the two witnesses who met Girish Chandra Chaturvedi, suggested to go towards the society to see as to what is happening. When they reached near the Society office, the three witnesses saw that accused/appellant Buddu Khan hitting with brick on the head of Dinesh Oli and saying that he would give him taste of biting the cheek. P.W. 1 Girish Chandra Chaturvedi, as to the source of light, says that witnesses had torches with them and they saw the incident. The witness further states that he and other two witnesses were able to get caught hold of the accused/appellant, who after pushing them was able to free himself and escape. Thereafter, they saw that Dinesh Oil is dead. On this, Tejpal Singh (P.W.5) was sent for getting scribed the First Information Report and the First Information Report was lodged. This witness further states that on the next day i.e. on 19.09.1993, the police reached the spot and took the blood stained clothes, the brick used in the crime and prepared memorandum (Ext. A-1) P.W. 1 Girish Chandra Chatuvedi further states that the police also took the blood stained soil and simple soil from the spot and prepared memorandum (Ext. A-2). He further states that a chappal and cycle belonging to the accused/appellant was also taken by the police into custody and prepared memorandum (Ext. A-3). He further states that after taking the dead body in their possession, the police prepared inquest report (Ext. A- 4). 8. P.W. 5 Tejpal Singh has corroborated the prosecution story narrated by P.W. 1 Girish Chandra Chaturvedi. He has stated that in Village Fauji Math Kota, there is a co-operative society and in said society accused/appellant Buddu Khan was Chaukidar while Dinesh Oli was a Salesman. He further states that the two were friends and used to have drinks together. The witness further states that once Dinesh Oli had bitten at the cheek of Buddu Khan in presence of his wife. On this, Buddu Khan, Started suspecting that Dinesh Oli has illicit relations with his wife. Rest of incident of 18.09.1993, as narrated by P.W. 1 Girish Chandra Chaturvedi, is also stated on oath by P.W. 5 Tejpal Singh. This witness has also stated that he got lodged First Information Report (Ext.A-8) with the police. The statements of P.W. Girish Chandra Chaturvedi and P.W. 5 Tejpal Singh get corroboration from the nature of injuries found on the dead body of the deceased by P.W. 2 Dr. A.S. Singh. Their testimony is natural and trustworthy. P.W. 1 Girish Chandra Chaturvedi at the end of his cross examination states that he was friend of both Dinesh Oli and Buddu Khan. As such, in our opinion, the witness is impartial. In the circumstances, that testimony of the two eye witnesses is trustworthy, this Court agrees with the finding recorded by the trial court that the prosecution has been successful in proving the charge of offence punishable under Section 302 I.P.C. 9. Shri M.C. Pant, learned Amicus Curiae, on behalf of the appellant argued that the incident is of night and there was no light in which the witnesses could have witnessed the incident. We do not find much substance in the argument for the reason that it has come on record in the statements of both eye-witnesses P.W. 1 Girish Chandra Chaturvedi and P.W. 5 Tejpal Singh that they had torches with them in the light of which they witnesses commission of crime. Assuming for a moment that there was not enough light, even then the witnesses were well known to the deceased as well as to the accused and even in the poor light there was no difficulty to the witnesses in identifying the two. 10. Next submission on behalf of the appellant is that third eye-witness Jai Prakash was not examined by the prosecution. In this connection, our attention is drawn to case of State of U.P. and another Vs. Jaggo alias Jagdish, AIR 1971 Supreme Court 1586. Referring said case, it is contended that non examination of Jai Prakash, makes the prosecution story doubtful. It is settled principle of law that it is not the number or the quantity of witnesses, which is material, and what is material is the quality of the evidence adduced by the prosecution. We would like to mention here the case of Banti alias Guddu Vs. State of M.P. 2002 (8) Supreme Court Pg. 392, in which it has been held by the Apex Court that if there many witnesses of the same fact, it is not necessary for the public prosecutor to examine all. 11. Secondly, it is pointed out on behalf of the appellant hat P.W. 1 Girish Chandra states that he saw accused/appellant Buddu Khan, hitting with a brick on the head of Dinesh Oli (deceased) but P.W. 5 Tejpal Singh in his cross examination states that he saw accused/appellant dragging the deceased. In this connection it is argued that both the witnesses were together, as such, this contradiction is fatal to the prosecution story, as it creates reasonable doubt in it. We have examined statements of two witnesses and found that P.W. 5 Tej Pal Singh has stated that after the incident, Buddu Khan dragged Dinesh Oli and threw him in a gutter and at that time the witnesses caught hold him. With this kind of averment on oath of P.W. 5 Tejpal Singh even if the witness has not seen hitting of the blows by the accused, this does not create any reasonable doubt as to the commission of murder by the accused. 12. Lastly, it is submitted on behalf of the appellant that he offence even if treated to be proved, it does not constitute the offence of culpable homicide amounting to murder rather it is culpable homicide no amounting to murder, punishable under Section 304 I.P.C. Having considered the nature of the injuries found by P.W. 2 Dr. A.S. Singh, on the dead body of deceased, and number of injuries and fractures on the skull, we are of the view that it is a case of culpable homicide amounting to murder and does not fall under the category of culpable homicide not amounting to murder. 13. For the reasons, as discussed above, in the circumstances, we do not find any merit in this appeal and the same is liable to be dismissed. The appeal is dismissed. Registry is directed to send the copy of this judgment to Superintendent of Jail, if the appellant is in jail. (Dharam Veer, J.) (Prafulla C. Pant, J.) Dt: 18.03.2008 Sweta