IN THE HIGH COURT OF UTTARAKHAND, AT NAINITAL Criminal Appeal No. 02 of 2006 Manohar Lal S/o Munna Lal ………… Appellant Versus State of Uttarakhand ………… Respondent Mr. R.S. Sammal, Advocate assisted by Mr. Vishal Singh, Advocate and Mr. Prem Kaushal, Advocate for the appellant. Mr. Amit Bhatt, Addl. G.A. with Mr. B. S. Parihar, Brief Holder for the State. Judgment Hon’ble J.C.S. Rawat, J. This criminal appeal has been directed against the judgment and order dated 03.12.2005 passed by the then 1st Addl. Sessions Judge, Rudrapur, Udham Singh Nagar in S.T. No.7 of 1999, whereby the Addl. Sessions Judge has convicted the accused/appellant u/s 307/323 I.P.C. read with 34 I.P.C. and sentenced him to undergo 10 years’ R.I. u/s 307/34 I.P.C. and one year u/s 323/34 I.P.C. The accused/appellant was further directed to pay a fine of Rs.5,000/-. It was further directed that in default of payment of fine, the accused/appellant would undergo further one year imprisonment. Both the sentences would run concurrently. 2. The prosecution case, in nutshell, is that on 30/10/1996 at about 8:00 p.m., the accused/appellant alongwith his wife Suman and an unknown person armed with knife and danda entered into the house of the informant Pooran Lal and started assaulting the informant. On hearing the hue and cry, brother of the informant, Satpal and his neighbour, Ram Babu reached at the spot to scot-free the informant from the clutches of the accused/appellant and other persons. When Satpal intervened in the melee, the accused/appellants assaulted him by knife on 2 his stomach. The accused/appellants also caused injury on the person of the injured Ram Babu by beating him by danda. The accused/appellants entered into the house of the complainant with a common intention to commit the offence. After sustaining the knife injury, Satpal fell down on the ground. Thereafter, he was taken to Rudrapur Hospital in a serious condition, from where he was referred to Base Hospital, Haldwani for better treatment. Meanwhile, Ram Babu was also taken to the hospital where he was examined by the doctors. PW7 Dr. P.C. Pholeria conducted surgery of the injured Satpal in the Base Hospital, Haldwani. Thereafter, on the next day of the incident, i.e. 01-11-1996 at about 8.35 p.m., F.I.R. was lodged at the police station, Rudrapur by the informant Pooran Lal. The matter was investigated by the police. Initially, the case was lodged u/s 324 I.P.C. and later on it was converted u/s 307 I.P.C. After investigation of the matter, chargesheet was submitted against the accused/appellant. 3. After submission of chargesheet, the accused-appellants were committed to the court of Sessions for trial and the trial court framed charge u/s 307/323/504 read with 34 I.P.C. against the accused-appellants. It is pertinent to mention here that chargesheet was submitted against the accused/appellants Manohar Lal and his wife Suman. But due to the death of accused Suman, the criminal proceedings stands abated against her. 4. The prosecution in support of its case examined informant PW1 Pooran Lal; PW2 injured Satpal; PW3 Dr. M.C. Tiwari, PW4 Dr. S.P.S. Sandhu; PW5 Ram Babu; PW6 I.O. S.I. Sri Lala Ram Gangwar and PW7 Dr. P.C. Pholeria. The accused/appellants did not adduce any evidence in their defence. 3 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 been falsely implicated in this case due to enmity. 6. The learned Addl. Sessions Judge on appreciation of the evidence, convicted and sentenced the accused/appellant as mentioned above. 7. I have heard Mr. Mr. R.S. Sammal, Advocate assisted by Mr. Vishal Singh, Advocate & Mr. Prem Kaushal, Advocate for the appellant; Mr. Amit Bhatt, Addl. G.A. with Mr. B. S. Parihar, Brief Holder for the State; and perused the record. 8. It needs to be mentioned that there is no dispute that injured PW2 Satpal and injured PW5 Ram Babu sustained the injury on 30/10/1996 at about 8:30 a.m. The prosecution in support of its case examined PW3 Dr. M.C. Tiwari who examined the injured Sat Pal on 30/10/1996 at about 12:35 p.m. and found the following injury on the person of the injured:- Stab wound on left lower abdomen 6 cm. inside the left iliac crest. Measuring 3 cm. x 1.5 cm. clear cut margins—cuts seen. Bleeding present. Horizontally placed. Cavity deep. According to the opinion of the doctor, the injury which was found on the abdomen of the injured Satpal could have been caused by any sharp edged weapon and the injury was fresh in duration. It was also stated by the 4 doctor that the injury could have been caused at about 8:00 a.m. on 30/10/1996 by knife. 9. The prosecution further examined PW4 Dr. S.P.S. Sandhu who examined injured Ram Babu at J.L.N. Hospital, Rudrapur. He found the following injury on the person of the injured:- Lacerated wound present Rt. side of parietal bone 8 cm. above the Rt. ear. Measuring 3 x 5 cm., muscle deep. Fresh in duration. Bleeding present. As per the opinion of the doctor the injury could have been caused on 30/10/1996 at about 8:00 a.m. by danda. The prosecution also examined informant PW1 Pooran Lal, PW2 injured Satpal and PW5 injured Ram Babu. All of them have stated that the said injury was caused by knife and danda on 30/10/1996 at about 8:00 to 8:30 a.m. in the morning. It is amply established from the evidence that the injured sustained the injury on their person on the date, time and place of the incident. 10. Now it is to be decided who is the author of the injuries caused upon the person of the injured. The prosecution in support of its case examined injured PW2 Satpal. He has stated in his evidence that the accused/appellant and the complainant are his neighbour. On the date of the incident, i.e. 30/11/1996 at about 8:00 a.m., the appellant alongwith his wife Suman and an unknown person holding knife, danda and lathi respectively entered into the house of the informant PW1 Pooran Lal and started assaulting him. When the informant Pooran Lal cried for the help, he reached at the spot. In the meanwhile, other injured witness PW5 Ram Babu also reached 5 at the spot. When he tried to pacify the matter, the accused/appellant assaulted him with intention to kill him by stabbing knife on his abdomen. He fell down on the ground and became unconscious. He was taken to the hospital from where he was referred to Base Hospital, Haldwani where his surgery was conducted. Thereafter, he was discharged from the hospital. PW5 injured Ram Babu is also an injured eyewitness of the incident. He has corroborated the evidence of injured PW2 Satpal in all the material particulars and narrated the entire incident. He has stated in his evidence that he was also beaten by the accused/appellant due to which he sustained the injury. He was also taken to the Hospital where he was medically examined by PW4 Dr. S.P.S. Sandhu. Thus, the two injured witnesses have narrated the entire story which is indicated in the F.I.R. Informant PW1 Pooran Lal was also produced by the prosecution. He has stated in his evidence that on the date of the incident, the accused/appellant alongwith his wife and one unknown person, armed with knife, lathi and danda entered into his house and started assaulting him with intention to kill him. When he cried for help, his brother Satpal and his neighbour Ram Babu came there to save him. The accused/appellant also assaulted Satpal in his abdomen. He has further stated that accused Suman and an unknown person also started assaulting both the injured. Thus, he has also corroborated the prosecution version as narrated in the F.I.R. He has corroborated the evidence of the injured witnesses. 11. Learned counsel for the accused/appellant contended that even assuming that the evidence of the prosecution is credible and cogent, the appellant is entitled to get the benefit of doubt as there was no motive for him to cause injuries on the persons 6 of the injured. Learned Addl. G.A. refuted the contention. The prosecution has led the evidence of PW1 Pooran Lal, PW2 Satpal and PW5 Ram Babu before the trial court to the effect that prior to this incident, there had been a quarrel in between the accused/appellant and his brother Ramesh. In that melee, PW2 Satpal, brother of the informant intervened to save Ramesh. Due to this, the accused/appellant had illwill against PW2 Satpal and his family members. On account of this illwill, the offence has been committed. It is also transpired from the evidence that both the parties belonged to lower strata of society. They are weight-lifters in the shop. The accused/appellant is also a labour in the cane center. Thus, the prosecution has established the motive in its evidence. The motive for doing a criminal act is generally a difficult area for prosecution as one cannot normally see into the mind of another. Motive is the emotion which impels a man to do a particular act and such impelling cause need not necessarily be proportionately grave to do grave crimes. It was seen that many murder have been committed without any known or prominent motive and it is quite possible that the aforesaid impelling factor would remain undiscoverable. Assuming that the prosecution has failed to prove the motive against the appellant, when the ocular testimony of the witnesses consistently supported the prosecution case, the question of motive would have lost is importance. It is well settled that in order to bring home the guilt of an accused, it is not necessary for the prosecution to prove the motive. The existence of motive is only one of the circumstances to be kept in mind while appreciating the evidence adduced by the prosecution. If the evidence of the witnesses appears to be truthful and convincing, failure to prove the motive is not fatal to the case of the prosecution. It is also well settled that establishment of 7 motive is not sine qua non for proving the prosecution case. In the case of Baboolal Vs. State of U.P. 2001 SCC (Cri) 1484, the deceased was sitting inside the tea shop of one Abdul Nabi. On the opposite side of road, there was a sweetmeat shop and all the accused were sitting inside it. As the radio was being played on a high pitch, an exchange of words took place between those who were sitting in the tea shop and the accused. The accused threatened PW1 and others for raising this petty issue. A little later the deceased reached there and on coming to know of the development of the incident, he expressed his resentment at the incident reaching that range on such a petty issue. On this, the accused moved forward with a pistol accompanied by the second accused and another person with daggers in their hands and fired upon the deceased. The Hon’ble Supreme Court has held as follows:- “8. Learned counsel rightly contended that on such a petty quarrel, no sensible person would have used such a lethal weapon and killed the victim. How the mind of an assailant reacted is not possible to be fathomed from a detached reflexion. As pointed out by this Court in Nathuni Yadav v. State of Bihar 1998 SCC(Cri) 992: “Many a murders have been committed without any known or prominent motive. Mere fact that prosecution failed to translate that mental disposition of the accused into evidence does not mean that no such mental condition existed in the mind of the assailant.” 12. In the case of Thaman Kumar Vs. State of Union Territory of Chandigarh 2003 SCC (Cri) 1362, the Hon’ble Apex Court has held that :- “18. Shri Sushil Kumar has drawn our attention to certain findings recorded by the learned Sessions 8 Judge and has urged that he had rightly given benefit of doubt to the appellants and the High Court committed manifest error of law in reversing the aforesaid findings and convicting and sentencing the appellants while hearing an appeal against acquittal. The learned counsel has urged that the prosecution has failed to prove any motive on the part of the appellants to commit the crime. It is true that the only witness examined on the point of motive, namely, PW 7 Sardara Singh, who is the brother of the deceased, turned hostile and did not support the prosecution case. In his statement under Section 161 CrPC he had said that the deceased used to get commission for bringing customers to the guest house and he owed about Rs 42,000 in that account and some dispute had taken place with the owner when he had demanded his money. However, in his statement in Court he denied to have given any such statement. There is no such principle or rule of law that where the prosecution fails to prove the motive for commission of the crime, it must necessarily result in acquittal of the accused. Where the ocular evidence is found to be trustworthy and reliable and finds corroboration from the medical evidence, a finding of guilt can safely be recorded even if the motive for the commission of the crime has not been proved. In State of H.P. v. Jeet Singh 1999 SCC (Cri) 539 it was held that no doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no offence was committed if the prosecution failed to prove the precise motive of the accused to commit it, as it is almost an impossibility for the prosecution to unravel the full dimension of the mental disposition of an offender towards the person whom he offended. In Nathuni Yadav v. State of Bihar 1998 SCC (Cri) 992 it was held that motive for doing a criminal act is generally a difficult area for prosecution as one cannot normally see into the mind of another. Motive is the emotion which impels a man to do a particular act and such impelling cause need not necessarily be proportionately grave to do grave crimes. It was further held that many a murder have been committed without any known or prominent motive and it is quite possible that the aforesaid impelling factor would remain undiscoverable. In our opinion, in the facts and circumstances of the case, the 9 absence of any evidence on the point of motive cannot have any such impact so as to discard the other reliable evidence available on record which unerringly establishes the guilt of the accused.” 13. It was held by the Hon’ble Apex Court in Yunus Vs. State of M.P. 2003 (1) SCC 425:- “The prosecution in the present case has failed to prove the motive. Failure to prove motive for crime in our view is of no consequence. The role of the accused persons in the crime stands clearly established. The ocular evidence is very clear and convincing in this case. The illegal acts of the accused persons have resulted in the death of a young boy of 18 years. It is also well settled law that establishment of motive is not sine quo non for proving the prosecution case.” 14. The Hon’ble Apex Court has affirmed the above view in its latest decision in the case of Bhimapa Chandappa Hosamani Vs. State of Karnataka 2007 (1) SCC(Cri) 456). The Hon’ble Apex Court has held in Ramkrushna Vs. State of Maharashtra 2007 AIR SCW 3134 that:- “18. The High Court might not have dealt with the question of motive elaborately but when the presence of the appellant with Balram has been established, motive takes a back seat. Appellant must have come to the place of occurrence. He came with a knife. The knife injuries were found. Even if the prosecution has not been able to establish as to the exact role played by each of the accused, the fact that both the accused had common intention to commit the crime stood established. Submissions of the learned counsel for the State in this behalf are of 10 some significance. The learned Trial Judge as also the Trial Court cannot be said to have committed any error in relying upon the testimony of the P.W.3 in part. It is in our opinion permissible in law. (See Soma Bhai Vs. State of Gujarat AIR 1975 SC 1453)” 15. The trial court has held that there was sufficient motive to commit the offence. The learned defence counsel at the time of the trial has made cross examination to the witnesses but nothing could be elicited from their cross examination with regard to the factum of the motive. I do not find any infirmity in the findings recorded by the learned trial court regarding motive. In view of the above discussion, if the ocular testimony is found credible and cogent, then motive would be immaterial for the purposes of the appreciation of the evidence. Therefore, I do not find any force in the contention raised by learned counsel for the appellants. 16. Learned counsel for the accused/appellant further contended that the statement u/s 161 Cr.P.C. of the witnesses were recorded after a lapse of 30 days. The prosecution has not given any specific explanation for such delay in recording the statement u/s 161 Cr.P.C. The learned Addl. G.A. refuted the contention and contended that the accused/appellant has not made any cross examination about the delay in recording the examination. The informant PW1 Pooran Lal has narrated the prosecution version on 01/11/1996 and the names of the injured have also been given in the said F.I.R. The injured have been medically examined immediately after the incident by PW3 Dr. M.C. Tiwari and PW5 Dr. S.P.S. Sandhu. It is well settled position of law that if no explanation has been given by the prosecution as to why the eyewitness have not been examined shortly after the incident and from the material on record it appears that there had been inordinate delay in examining the eyewitnesses, but simply on that account, the convincing and reliable evidence adduced in the case should not 11 be discarded. As regards delayed examination of certain witnesses, unless the investigating officer is categorically asked as to why there was delay in examination of the witnesses the defence cannot gain any advantage therefrom. The Hon’ble Apex Court has held in Dr. Krishna Pal & another Vs. State of U.P. 1996 SCC (Cri) 249 :- “9. After considering the respective submission made by the learned counsel for the parties and also the evidences adduced in the case through which we have been taken, it appears to us that PWs 2, 3 and 6 namely Ram Saran, Attar Singh and Dr Rajveer Singh have clearly established the prosecution case that the appellants caused the murder of the deceased on 11-10-1978 by inflicting successive knife blows on his person. It appears to us that PW 1 Zile Singh, the uncle of the deceased, is not an eyewitness of the occurrence but having received information, he came to the spot and then dictated the fardbayan on the basis of the report received by him. It has also come out in the evidence that a number of persons were present at the place of occurrence when Zile Singh reached there and he talked to them including Dr Rajveer Singh. In the aforesaid circumstances, it is not unlikely that Zile Singh had not felt the need to specifically enquire from Dr Rajveer Singh as to whether he had seen the assailants. It is also unlikely that Dr Rajveer Singh also did not feel any necessity to give the names of the assailants because such names had already been given by other eyewitnesses present there. In the instant case, no explanation has been given by the prosecution as to why eyewitnesses had not been examined shortly after the incident and from the materials on record it appears that there had been inordinate delay in examining the eyewitnesses. But simply on that account, the convincing and reliable evidences adduced in this case should not be discarded.” 17. The Hon’ble Apex Court has held in Ramesh Vs. State of M.P. 2000 SCC (Cri) 206 that :- 12 “6. Mr Naik then placed before us the evidence of the three eyewitnesses and contended that their evidence does not inspire confidence and should be rejected. Normally, this Court, sitting in appeal against the conviction passed by the Sessions Judge and upheld in appeal, does not reappreciate the evidence of the witnesses again. But the evidence having been placed before us and having been argued at length by the learned Senior Counsel, we have scrutinised the same. Nothing substantial has been brought to our notice in the cross-examination of these witnesses for which this Court would come to the conclusion that the witnesses are not believable. As stated earlier, PW 1 was accompanying the deceased right from the beginning when the deceased had gone to supply milk and was proceeding to offer “puja” and PWs 2 and 4 are independent witnesses who happened to be at the scene of occurrence and have narrated the occurrence vividly. The argument of Mr Naik, appearing for the appellant against acceptability of Witnesses 2 and 4 is that they were examined by the police under Section 161 CrPC on 6-10-1985 and 4-10-1985 respectively. This delay in examining the two witnesses ipso facto cannot be a ground to discard their testimony, more so, when in the cross-examination of the witnesses, nothing tangible had been brought out to impeach their testimony. On the other hand, the evidence of PWs 2 and 4 fully corroborates the reliable evidence of PW 1 and therefore, the courts below were justified in maintaining the conviction of appellant Ramesh of the charge under Section 302 IPC. In course of arguments, Mr Naik, learned Senior Counsel also raised a contention that the prosecution has not examined the independent 13 witnesses though available and that an adverse inference should be drawn. But on going through the evidence on record, we do not find any material from which it can be said that the other independent witnesses were available and the same were not examined. That apart, PWs 2 and 4 are independent witnesses and, therefore, it is not necessary for the prosecution to multiply the witnesses. We, therefore, do not find any substance in the aforesaid submission of Mr Bhimrao Naik. 18. The Hon’ble Supreme Court has held in Ambika Prasad & another Vs. State (Delhi Administration) 2000(2) SCC 646 that:- “13. The learned counsel for the accused further raised the contention that there was delay in recording the statements of the injured witnesses, therefore, their evidence should not be accepted which also requires to be rejected. In Krishna Pal (Dr) v. State of U.P. 1996 SCC (Cri) 249 this Court rejected a similar contention of non-explanation by the prosecution as to why eyewitnesses had not been examined shortly after the incident and for inordinate delay in examining them, by holding that it would not be a ground to discard the convincing and reliable evidence adduced in the case. This contention is also considered by both the courts and has rightly not been accepted.” 19. In the case of State of U.P. Vs. Satish 2005 SCC(Cri) 642, the Hon’ble Supreme Court has held as follows:- “18. As regards delayed examination of certain witnesses, this Court in several decisions had held that unless the investigating officer is categorically asked as to why there was delay in examination of the witnesses the defence cannot gain any advantage therefrom. It cannot be laid down as a rule of universal application that if there is any delay in examination of a particular witness 14 the prosecution version become suspect. It would depend upon several factors. If the explanation offered for the delayed examination is plausible and acceptable and the court accepts the same as plausible, there is no reason to interfere with the conclusion. 20.