IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Court’s order whether the case is or not approved for reporting Chapter VIII, Rule 32(2)(b) Description of the Case. Criminal Appeal No. 377 of 2004 Date of decision :- 29.02.2008 A.F.R. (Approved for Reporting) Not approved for Reporting Initials of Judge Date: 29.02.2008 Note:- Bench Reader will attach this at the top of first page of the judgment when it is put up before the Judge for signature. Reserved HIGH COURT OF UTTARAKHAND, AT NAINITAL Criminal Jail Appeal No. 377 of 2004 Bijendra @ Mussha S/o Ram Diya R/o village Bhangedhi, Mahawatpur Thana Kotwali Roorkee District Haridwar ..…Appellant Versus State …..Respondent Dated :- 29th February, 2008 Mr. R. C. Tamta, Advocate for the appellant. Mr. Harish Chandra Poojari, Addl. Government Advocate for respondent-State. Hon’ble J.C.S. Rawat, J. This criminal jail appeal has been filed by the appellant from jail against the judgment & order dated 24.09.2004 passed by Mr. Kanta Prasad, the then Additional Sessions Judge, Roorkee, District Haridwar in S.T. No.56 of 2002, whereby the appellant was convicted and sentenced to undergo for R.I. for seven years under section 304 Part-2 IPC. 2. The facts, in nutshell, are that on 30.10.2001 at about 8p.m. appellant Bijendra @ Mussha started hurling abuses to the villagers that he would not allow to any of the villagers to take water from the tap because it has been installed in his land. Chandra Bhan-deceased raised an objection and asked the appellant not to hurl abuses to the people residing in the village. Chandra Bhan-deceased further stated to the appellant that the tap installed on his land is a public property and you could not prevent the people to take water from it. On this, the appellant became annoyed with the deceased and brought a knife from his house. Therefore, the appellant started inflicting injuries on the person of Chandra Bhan by the knife. On hearing the hue and cry, Rakesh PW1, Suresh PW2, Jagraj Singh PW6-the cousin brother of the deceased and other villagers reached at the spot. They saw the incident. When the appellant saw that the witnesses have reached at the spot he fled away from the spot. The deceased succumbed to his injuries at the spot. Jagraj Singh PW6 immediately rushed towards the police station where an FIR was lodged at 10p.m. on same day. On the basis of report, a Chick FIR was prepared and necessary entries were made in the general diary. Thereafter, the police immediately visited the spot. Jasbir Singh Pundir, PW 10 – Investigating Officer started the investigation of the case and prepared the panchayanama of the dead body. The dead body of the deceased was sent for postmortem. After completing the investigation, the Investigating Officer submitted the chargesheet before the court against the appellant. 3. After submission of chargesheet the appellant- accused was committed to the court of Sessions for trial and the trial court framed charges against the accused person. He denied the charges levelled against him and claimed his trial. 4. The prosecution in support of its case examined ten witnesses. Rakesh Kumar PW1, Suresh PW2 and Jagraj Singh PW6 (informant) – cousin brother of the deceased were the eyewitness of the incident. Rakesh Kumar (PW3) s/o Attar Singh and Dalmir Singh PW4 have proved the panchayatnama. The prosecution has also adduced the evidence of Prem PW5 but he has been declared hostile by the prosecution. He turned hostile and did not support the prosecution case fully. Dr. S. S. Lal PW7 is the medical officer, who conducted the postmortem on the dead body of the deceased. The prosecution has also adduced the evidence of Ram Swaroop Saxena PW8 who has proved the recovery of weapon used in the crime from a secluded place. Head Constable Satvir Singh PW9 was the formal witness of the police. Jasbir Singh Pundir PW10 was the Investigating Officer of this case and he submitted the chargesheet against the appellant-accused. 5. The accused person 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. 6. The accused-appellant in the trial eventually was convicted and sentenced by the trial court as mentioned above. 7. I have heard learned counsel for the parties and perused the record carefully. 8. At the outset, it needs to be mentioned here that it is not disputed that deceased died on account of ante-mortem injuries sustained by him on the date of occurrence. Dr. S. S. Lal (PW8), Medical Officer conducted the postmortem of deceased on 31.10.2001 at 12:30 p.m. and found following ante-mortem injuries on the person of the deceased:- (i) Stab would 1 x 1cm in front of left side of chest. 2.5 cm away from left nipple at 4 o’clock position, chest cavity deep. Margins sharp & erected. (ii) Stab wound 2 x 1cm on left side of abdomen, 12cm from umblicus at 4 o’clock position abdominal cavity deep, margins sharp & erected. (iii) Incised wound 1 x 1cm at front of left hip joint. Muscle deep, tailing upward. (iv) Incised wound 1 x 1 cm on right side of chest, 9cm from right nipple at 7 o’clock position, bone deep. Tailing laterally. (v) Incised wound 2 x 1cm at outer side and right elbow joint. Bone deep. Tailing upward. On internal examination, half litre of blood was found in the abdomen cavity and one litre of blood was found in the cavity of the chest. The medical officer has opined that the death of the deceased was caused due to shock and haemorrhage resulting from the ante-mortem injuries. He has opined that the injuries sustained by the deceased could be inflicted by ‘Sooja’ at about 8 pm on 30.10.2001. It is also established by the ocular testimony of the witnesses that the deceased sustained injuries on the date of incident. Thus, it is amply established that the deceased met a homicidal death on account of ante-mortem injuries sustained by him. 9. Now, I have to consider as to whether the appellant-accused was responsible for the offences. The prosecution has examined ten witnesses in all. There is direct evidence connecting the appellant- accused with the offence charged. The prosecution has adduced the evidence of Jagraj Singh PW6, the cousin of the deceased who has stated in his evidence that the incident took place at about 8pm on 30.10.2001. He further stated that a government tap had been installed on the land of appellant. The appellant was hurling abuses to the villagers that he would not allow them to take water from the said tap because it was installed on his land. Chandra Bhan (deceased) asked the appellant not to hurl abuses to the villagers and allow them to take water from the government tap. Chandra Bhan (deceased) further stated that nobody can prevent the people to take water from the government tap. On this, a melee took place between the appellant and Chandra Bhan. Thereafter, the appellant went to his house, brought a knife and started assaulting the deceased. On the hue and cry of the deceased, the witnesses reached at the spot and the appellant fled away from the spot. The evidence of Jagraj Singh PW6 has further been corroborated by other eye-witnesses namely, Rakesh Kumar PW1 and Suresh PW2. Both are the independent witnesses of the prosecution. Prem PW5, who has been declared hostile by the prosecution, has stated in his evidence that when he reached at the spot he saw the deceased lying dead on the road on the date of incident. The rest part of the incident Prem PW5 has not supported the prosecution case. Though, he has been declared hostile by the prosecution but he has corroborated the factum the immediately after the incident he saw the deceased lying dead due to the injuries sustained near the water tap and the people standing there informed him that the appellant had inflicted injuries on the person of the deceased by knife. Thus, the entire evidence establishes that the appellant was the author of the inujuries sustained by the deceased. With the help of the learned counsel for the parties, I have gone through the entire evidence on record. The evidence of eye-witnesses Rakesh Kumar PW1, Suresh PW2 and Jagraj Singh PW6 is consistent, cogent and credible. The presence of these witnesses at the spot is also natural. The presence of these witnesses at the relevant time was explained and their evidence cannot be thrown out as unreliable or tainted. They have supported the prosecution case in all material particulars and no infirmity could be pointed out in their evidence. 10. It was further contended that one of the eye- witnesses, namely Jagraj Singh PW6 is related to the deceased. Jagraj Singh PW6 is the cousin brother of the deceased. It was further contended that Jagraj Singh PW6 who is said to be the eye-witness of the incident, is interested witness as he is related to the deceased. Learned A.G.A. refuted the contention. zThe evidence of prosecution witnesses is consistent and nothing had been elicited from their cross examination which may render their evidence unreliable. The evidence of the prosecution witnesses is credible and cogent. So far as the contention regarding the interested or related witness is concerned, it is true that Jagraj Singh PW6 is related to the deceased, but the evidence of this eye-witness cannot be discarded on this ground alone. There is no rule of law or prudence which requires that the evidence of a close relation must be discarded for the simple reason i.e. he is related to the deceased. I have no reason to disbelieve his testimony. Similarly, being relative, it would be his endevour to see that the real culprit is punished and normally he would not implicate wrong person in the crime, so as to allow the real culpit to escape unpunished. In the case of State of Punjab Vs. Karnail Singh reported in 2004 SCC (Cri) p/135 the Hon’ble Apex Court has held as under:- “8. We may also observe that the ground that the witnesses being close relatives and consequently, being partisan witnesses, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh v. State of Punjab reported in AIR 1953 SC 364 in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J., it was observed: (AIR p. 366:- 25. We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in – Rameshwar v. State of Rajasthan reported in AIR 1952 Sc 54 (AIR at p 59). We find, however, that it unfortunately still persists, if not in the judgments of the courts, at any rate in the arguments of counsel.” 9. Again in Masalti v. State of U.P. AIR 1965 SC 202 this Court observed:- “But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.” It is also pertinent to mention here that two other witnesses i.e. Rakesh Kumar PW1 and Suresh PW2 have corroborated the evidence of Jagraj Singh PW. Their evidence is credible and cogent. In view of the above discussions, I do not find any force in the contentions advanced by the learned counsel for the appellant. 11. Learned counsel for the appellant contended that the prosecution has failed to establish that there was light at the place of incident at the relevant time. There was no occasion for the witnesses to recognize the assailant in the night. It was pointed out that the hanging of a bulb or the source of light has not been indicated in the FIR by the informant. Learned A.G.A. refuted the contention and supported the findings recorded by the trial court. Rakesh Kumar PW1, Suresh PW2 and Jagraj Singh PW6 are the resident of the same vicinity where the deceased and the appellant were residing. It is also admitted that the parties are known to each other since before the date of incident. The appellant-accused can be recognized by his voice also. This is not a case where the witnesses had only fleeting glimpses of the accused. The parties are known to each other and as such there was no chance of making a mistake about the identity of the accused. The incident took place in the night at about 8pm on 30.10.2001. Jagraj Singh PW6 has categorically stated in the cross examination that he had seen the incident in the light of bulb hanging on a pole and he was cross examined at length but nothing could be elicited from his cross examination. It is true that the FIR does not contain the fact that there was any source of light at the place of incident. The I.O. immediately after the incident visited the spot and prepared the site-plan on the next day of incident. The I.O. has indicated in the site plan that one alighted electric bulb was hanging on a pole. This fact shown in the site plan is admissible in evidence because this fact has been seen by the I.O. by his own eyes. The evidence of Jagraj Singh PW6 on the point of light is cogent and consistent. He was cross examined at length but nothing could be elicited to discard his testimony. 12. Learned counsel for the appellant further contended that the medical officer has found that injury nos.3, 4 & 5 were incised wound whereas the injury nos. 1 & 2 are stab wounds. All these wounds could not be sustained by the deceased by the sole weapon i.e. ‘Sooja’. Learned A.G.A. refuted the contention. On perusal of the injury report, it cannot be held that the injuries sustained by the deceased could not be inflicted by the ‘Sooja’ weapon used in the incident. There is an expert medical opinion about the use of ‘Sooja’ in the crime. Eye-witnesses of the incident i.e. Rakesh Kumar PW1, Suresh PW2 and Jagraj Singh PW6 have categorically stated that the knife was used for inflicting injury on the person of deceased. They further stated that when they saw the incident at a considerable distance the weapon used in the crime was looking like a ‘knife’ and when they reached near the incident it was a ‘Sooja’. The witnesses are rustic villagers and at the time of incident the assault was made in succession os the witnesses might have confused as to whether it was a ‘Sooja’ or the knife. The incident was seen by the witnesses in the light of the bulb. Thus, the evidence of witnesses is consistent and cogent on this point also. Therefore, the contention raised by the learned counsel for the appellant has no force. 13. It was further contended on behalf of the appellant that the I.O. did not take sample of blood stained earth from the place of occurrence and it was not sent to the serologist for examination. Learned A.G.A. refuted the contention. This is only remissness on the part of the investigation. It is only a corroborative piece of evidence. If the ocular testimony is cogent and convincing there is no requirement to seek the corroboration from other evidence. This is a remissness on the part of the Investigating Officer, which does not help the appellants. The Apex Court has, while maintaining the conviction of the accused in Karnel Singh Vs. State of M.P. reported in 1995(5) SCC 518, 1995 SCC (Cri) 977 & 1995 CRL.L.J 4173, observed:- “Notwithstanding our unhappiness regarding the nature of investigation, have to consider whether the evidence on record, even on strict scrutiny, establishes the guilt. In case of defective investigation the Court has to be circumspect in evaluating the evidence but it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the Investigating Officer if the investigation is designedly defective. Any Investigating Officer, in fairness to the prosecutrix as well as the accused, would have recorded the statements of the two witnesses and would have drawn up a proper seizure-memo in regard to theChaddi. That is the reason why we have said the investigation was slipshod and defective.” 14. The Hon’ble Apex Court has held in Dr. Krishna Pal (supra) that:- “9. ………………………………………………….. …………….. The Investigating Officer in his deposition has also admitted that through mistake he omitted to mention the crime number in the inquest report. It appears to us that the Investigating Officer had not been diligent enough but for that reason we do not feel that reliable and clinching evidences adduced in this case by the eyewitnesses particularly by Dr Rajveer Singh should be discarded. In this connection, we may refer to a recent decision of this Court in Karnel Singh v. State of M.P.1995 SCC (Cri) 977. In the said decision, it has been indicated by this Court that in a case of defective investigation, it would not be proper to acquit the accused if the case is otherwise established conclusively because in that event it would tantamount to be falling in the hands of an erring Investigating Officer. As we do not find any reason to disbelieve the testimonies given by eyewitnesses of this case, we do not find any reason to take a contrary view and to interfere with the impugned judgment. These appeals, therefore, are dismissed.” 15. It has been held in Chhotu Vs. State of Maharashtra 1987(4) SCC 533 & 1997 CRI.L.J 4394 (SC) that:- “That necessarily means that all of them were the most natural and probable witnesses to an incident that then took place near his house, notwithstanding the fact that they were not residents of that locality. It also requires to be mentioned here that if the Investigating Officer failed to seize the bloodstained clothes of PWs 3 and 8 and to promptly examine PW3, whose names as any eye witness was disclosed immediately after the incident, it only indicates remissness on his part but the evidence of PW3 and 8 was not in any way impaired thereby.” 16. It has been observed by the Hon’ble Supreme Court in Dhanaj Singh @ Shera and others Vs. State of Punjab 2004 (3) SCC P-654 that in the instant case, the High Court found several disturbing features which indicated how the investigating officer had made out a new case to save the accused persons and to implicate the complainant party. Hence, the High Court analyzed the evidence of the eye witnesses with due care and caution. On finding the said evidence to be credible, the High Court upheld the conviction recorded by the trial court. Before the Hon’ble Supreme Court, the accused appellants challenged the conviction on the grounds (1) that the police after thorough investigation had concluded that it was the complainant party which caused the death of the deceased (ii) that the pellets, wads and cartridges were not recovered from the spot, (iii) that the weapons of assault and the pellets were not sent for ballistic examination, (iv) that the blood stained earth was not sent for chemical examination (v) that many persons who could have thrown light on the incident had not been examined, and (vi) that the evidence being that of highly interested and inimical persons, should have been discarded. Dismissing the appeal, it was held by the Apex Court that even if the investigation is defective, that pales into insignificance when ocular testimony is found credible and cogent. In the case of a defective investigation the court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect. To do so would tantamount to playing into the hands of the investigating officer if the investigation designedly defective. 17. The Hon’ble Apex Court in its latest decision in the case of Rotash Vs. State of Rajasthan 2007 AIR SCW 44 has held that:- “32. The investigation was not foolproof but then defective investigation would not lead to total rejection of the prosecution case. 33. In Visveswaran v. State 2003 (6) SCC 73, this has held: Before we notice the circumstances proving the case against the appellant and establishing his identity beyond reasonable doubt, it has to be borne in mind that the approach required to be adopted by courts in such cases has to be different. The cases are required to be dealt with utmost sensitivity, courts have to show greater responsibility when trying an accused on charge of rape. In such cases, the broader probabilities are required to be examined and the courts are not to get swayed by minor contradictions or insignificant discrepancies which are not of substantial character. The evidence is required to be appreciated having regard to the background of the entire case and not in isolation. The ground realities are to be kept in view. It is also required to be kept in view that every defective investigation need not necessarily result in the acquittal. In defective investigation, the only requirement is of extra caution by courts while evaluating evidence. It would not be just to acquit the accused solely as a result of defective investigation. Any deficiency or irregularity in investigation need not necessarily lead to rejection of the case of prosecution when it is otherwise proved.” Therefore , I do not find any force in the contention raised by the learned counsel for the appellant. 18. Moreover, there was prompt FIR and there was no chance of any manipulation in the FIR. The incident took place on 30.10.2001 at 8pm and the report was lodged at the police station at 10:30pm on the same day. The distance between the police station and the place of incident is about 2km. Thus, the prompt FIR gives the confidence that it is a correct version and the facts which have been mentioned therein are correct. If the FIR has been lodged by undue delay, it should have been properly explained at the time of lodging the FIR. The delay in lodging the FIR shows that it was the outcome of due consultation or deliberation. FIR in a criminal case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstances in which the crime was committed, including the names of the actual culprits and the parts played by them, the names of the eye witnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. As such, the prosecution has proved