Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 1177 of 2001 (Old No.1555 /1997) Jiwandhan Pal and others … Appellants Versus State …Respondent Sri Pratiroop Pande, Advocate for the appellants Sri S.S. Adhikari, A.G.A. for the State/respondent Hon’ble B.C. Kandpal, J. Hon’ble Nirmal Yadav, J. Delivered by Hon’ble B.C. Kandpal, J. This appeal preferred under Section 374(2) Cr.P.C. is directed against the judgment and order dated 29.8.1997 passed by Sessions Judge, Nainital, in Sessions Trial No.374/1995, State vs. Jiwandhan Pal and others, whereby accused- appellants have been convicted under Section 302/34 I.P.C. and have been sentenced for life imprisonment and a fine of Rs.500/- each and in default of payment of fine, they have been sentenced to undergo further fifteen days’ rigorous imprisonment. 2- Prosecution story in brief is that deceased Ram Chandra and his brother Phool Chandra (PW-1) were living in the same village. Accused Jiwandhan Pal had enmity with Ram Chandra on account of some incident at Holi and he had also threatened many times to kill him. On 24.5.1995 at about 7.30 p.m. complainant Phool Chandra (PW-1) along with his brother Ram Chandra (deceased), Ravindra 2 Sharma had gone to the house of Laxmi Narain Singh (husband of PW-3) with regard to some work of insurance, but due to non-availability of Laxmi Narain at the house, when they were coming out from the house, accused namely Jiwandhan Pal, Sugriv Pal, Smt. Basmati, residents of the same village, started hurling abuses at them, to which deceased Ram Chandra objected. On this, Sugriv Pal caught hold of the deceased and on exhortation of Smt. Basmati, Jiwandhan Pal took out the knife and gave many blows to the deceased, due to which deceased fell down at the spot and he started writhing in pain. When Sadanand (PW-2), Ravindra Sharma, Noor Mohd., Habeeb Miyan etc. reached at the spot, the accused persons fled away. At that time there was electric light at the door of Laxmi Narain. The injured was immediately rushed to Rudrapur Hospital, where after giving primary aid he was referred to Haldwani Hospital being his condition critical, but there he died at 2.00 p.m. PW-1 Phool Chandra lodged the F.I.R. (Ext.Ka.1) with P.S. Rudrapur on 25.5.1995 at 9.50 a.m., on the basis of which Chick F.I.R. of Case Crime No. 368/1995 was prepared vide Ext.Ka.5 and necessary entry was made in the General Diary vide Ext.Ka.6. The investigation of the case was taken up by S.H.O. Tejpal Singh (PW-7), who inspected the place of incident, prepared site plan (Ext.Ka.7) and took in his possession bloodstained earth and simple earth from the spot and prepared its recovery memo vide Ext.Ka.8. The autopsy on the dead body of deceased Ram Chandra was conducted on 25.5.1995 at Base Hospital, Haldwani by Dr. A.N. Saxena (PW-4), who prepared post mortem report (Ext.Ka.2). On 3.6.1995, investigating officer 3 arrested accused Smt. Basmati and entry to this effect was made in the General Diary vide Ext.Ka.9. After completion of the investigation charge sheet (Ext.Ka.10) was submitted against all the three accused persons under Sections 302/34 and 504/34 I.P.C. 3- The learned Magistrate on receipt of the charge sheet after giving necessary copies to the accused as required under Section 207 of Cr.P.C., appears to have committed the case to the court of Sessions for trial. The learned Sessions Judge after hearing the parties framed charge of offence punishable under Sections 302/34 and 504/34 I.P.C. against accused/appellants. The accused pleaded not guilty and claimed to be tried. 4- The prosecution in order to bring home guilt against the accused persons got examined as many as seven witnesses in the case. PW-1 Phool Chandra is the scribe of the F.I.R. as well as the brother of the deceased. PW-2 Sadanand is the eyewitness of the case. PW-3 Smt. Usha Devi is the wife of Laxmi Narain, on whose house deceased had gone at the time of incident. PW-4 Dr. A.N. Saxena conducted the post mortem of the deceased. PW-5 Raja Ram is the inquest witness. PW-6 Dr. Chandra Prakash Tripathi medically examined the injuries on the person of the injured. PW-7 Tej Pal Singh is the investigating officer of the case. 5- The oral and documentary evidence was put to the accused under Section 313 Cr.P.C., to which they denied and alleged that they have been falsely implicated in the case. However, the accused did 4 not lead any evidence in their defence. 6- The trial court having considered the entire evidence on record and hearing learned counsel for parties convicted the accused/appellants under Section 302/34 I.P.C. and sentenced them for life imprisonment and a fine of Rs.500 each and in default of payment of fine, they have been sentenced to undergo further 15 days’ rigorous imprisonment, vide judgment and order dated 29.8.1997. However, accused/appellants have been acquitted of the charge of offence under Section 504/34 I.P.C. 7- Feeling aggrieved by the aforesaid impugned judgment and order, appellants have preferred the present appeal which has been placed before us for disposal. 8- Before further discussion, it is pertinent to mention here that post mortem examination on the dead body of the deceased Ram Chandra was conducted on 25.5.1995 at 12.00 noon by Dr.A.N. Saxena (PW-4), who found the following ante mortem injuries on his person: (i) Stitched wound 5 cm long with 3 stitched right side front of abdomen 5 inch umbilicus abdomen cavity deep. (ii) Stitched wound front of right arm down third 10 cm long with 7 stitched and cutting of underneath tissue. (iii) Stitched wound back of left forearm 4 inch above wrist 2 inch long with 3 stitched. 9- The Medical Officer (PW-4), at the end of post 5 mortem examination, opined that deceased died on account of shock and hemorrhage due to ante mortem injuries. From the statement of PW-4 Dr. A.N. Saxena, read with autopsy report (Ext.Ka.2), it is clear that the prosecution has successfully proved that the deceased has died homicidal death. Now, the question before us is whether the appellants, with common intention, committed murder of Ram Chandra or not. 10- PW-1 Phool Chandra (complainant), who is the eyewitness of the case, has stated that he along with his brother Ram Chandra (deceased) and Ravindra Sharma had gone to the house of Laxmi Narain at about 7.30 p.m. When they were coming out from the house of Laxmi Narain, accused Jiwandhan Pal, Sugriv Pal and Smt. Basmati started hurling abuses at them, to which his brother Ram Chandra objected. On this, accused Sugriv Pal caught hold of his brother (deceased) and accused Smt. Basmati said that kill him (deceased). Accused Jiwandhan Pal took out the knife and started giving knife blows to the deceased. This witness has also stated that wife of Laxmi Narain, Sadanand Pal, Ravindra Sharma and many other people also reached at the spot and when they tried to scot-free his brother from the clutches of accused, the accused fled away from the spot. This witness has further narrated that at the time of incident there was electric light at the door of Laxmi Narain. This witness has further stated that after the incident deceased was immediately taken to Government Hospital, Rudrapur where he was referred to Haldwani Hospital, but there he died at 2.00 p.m. This witness has further told that he 6 lodged the F.I.R. (Ext.Ka.1) with Police Station Rudrapur. This witness was cross-examined by the defence at length but nothing has come out in his evidence which may create any doubt in his evidence. 11- The statement of eyewitness Phool Chandra (PW-1) gets corroboration from the statement of Sadanand Pal (PW-2), who has stated that on the day of incident in the evening at about 7.30 p.m. when he was taking tea at the house of his Mausa (uncle) Ram Gopal, he heard noise of shouts and abusing. When he reached at the spot, he saw accused Jiwandhan Pal giving knife blows to Ram Chandra, whereas accused Sugriv Pal and Basmati were coming out from the place of incident. Accused Jiwandhan Pal also fled away from the spot after giving knife injuries to the deceased. Thereafter, many people reached at the spot. This witness has also stated that after the incident deceased Ram Chandra was immediately taken to Rudrapur Hospital, where he was referred to Haldwani Hospital, but there he died at 2.00 p.m. This witness was also cross-examined by the defence at length but nothing has come out in his evidence which may create any doubt in his evidence. 12- PW-3 Smt. Usha Devi is another eyewitness of the incident, who has corroborated the prosecution case in the same manner, as stated by PW-1 and PW-2. This witness has stated in his evidence that about two years ago on the date of incident at 7.30 p.m. Ram Chandra (deceased), Phool Chandra and Ravindra Sharma had come to the house to see her husband with regard to some work of insurance. On 7 that day, her husband was not present at the house. When they were coming out from her house, accused Jiwandhan Pal, Sugriv Pal and Smt. Basmati started hurling abuses at them, to which Ram Chandra objected. On this, accused Basmati instigated to kill Ram Chandra. Accused Sugriv Pal caught hold of Ram Chandra and accused Jiwandhan Pal gave knife blows on the person of Ram Chandra. This witness has also stated that at the time of incident there was electric light at the door of her house. This witness has also stated that after the incident deceased Ram Chandra was immediately taken to Rudrapur Hospital, where he was referred to Haldwani Hospital, but there he died at 2.00 p.m. This witness was also cross-examined by the defence at length but nothing has come out in her evidence which may create any doubt in her evidence. 13- The testimony of above eyewitnesses i.e. PW-1, PW-2 and PW-3 is natural and trustworthy and their presence on the place of incident cannot be doubted. PW-1 Phool Chandra is the informant as well as brother of the deceased. PW-2 Sadanand has stated in his evidence that at the time of incident he was taking tea in the house of his uncle Ram Gopal, whose house is situated 2-3 houses ahead from the house of Laxmi Narain where the incident took place. PW-3 Smt. Usha Devi is the wife of Laxmi Narain, in front of whose house incident took place. PW-2 and PW-3 are the independent witnesses and they were having neither any interest with the complainant or any enmity with the accused persons, therefore, there is no reason with them for deposing false evidence against the accused. 8 14- The prosecution case is corroborated not only from the testimony of the eyewitnesses i.e. PW-1, PW-2 and PW-3, but from the medical evidence also. The doctor (PW-4) opined in his report that injuries found on the body of deceased could have been caused on 24.5.1995 at 7.30 p.m. by some sharp edged weapon like knife. This is also the case of the prosecution that accused Jiwandhan Pal gave blows to the deceased with knife. In this way, the medical evidence fully finds corroboration from the ocular version adduced by the prosecution. 15- Learned counsel for the appellants has submitted that the F.I.R. in the present case has been lodged after consultation and deliberation and the same is highly belated. We have re-examined the evidence on record and find that whatever delay is there in lodging the First Information Report, the same has been properly explained by the prosecution. In this case, incident was said to have taken place on 24.5.1995 at about 7.30 p.m. in the evening and report of the incident was lodged on 25.5.1995 at 9.50 a.m. in the morning at P.S. Rudrapur. PW-1 Phool Chandra has stated in his cross-examination that after the incident injured Ram Chandra was immediately rushed to Rudrapur Hospital, where PW-6 Dr. Chandra Prakash Tripathi medically examined the injuries on the person of the injured at 8.25 p.m. As the condition of the injured was critical, he was referred to Haldwani Hospital where he died at 2.00 p.m. This witness has further stated that after the death of Ram Chandra, he along with his sister and other people had gone to the house, as doctor had refused to give the dead 9 body to them and told to report the matter first. They reached at Rudrapur at 3.00 a.m. in the night by some rented vehicle and lodged the F.I.R. on the next day i.e. on 25.5.1995 at 9.50 a.m. with Police Station Rudrapur. Since there is sufficient explanation for not lodging the F.I.R. earlier, in our opinion, delay in lodging the First Information Report is not fatal in the present case. 16- The next submission raised on behalf of the accused/appellants is that there was no motive of commission of crime on the part of the accused and they have been falsely implicated. On going through the evidence on record, we find that PW-1 Phool Chandra has stated in his evidence that accused had prior enmity with him and his brother (deceased) and they had also threatened many times to kill his brother Ram Chandra (deceased). On the other hand, accused did not establish any motive which could suggest that they have been falsely implicated. Even otherwise, where there is eyewitness account of the incident, motive does not play any important role and the same is just academic. However, we are of the view that the prosecution has sufficiently shown the reason why the accused were prompted to commit the murder of the deceased. Thus, the motive for the commission of the crime is amply proved. 17- The next argument advanced on behalf of the accused/appellants is that there is no mention as to source of light in the F.I.R. (Ext.Ka.1) and the plea with regard to source of electric light was taken by PW-1 Phool Chandra and PW-3 Smt. Usha Devi before the trial court for the first time. We do not 10 find any force in this argument. As to the light in which the witnesses could see the incident, there is enough evidence on record that incident was seen by PW-1 and PW-3 in the electric light. The site plan (Ext.Ka.7) prepared by PW-7 Tej Pal Singh also shows the source of light as electric bulb at the door of Laxmi Narain. We are of the view that merely by not mentioning the source of light in the report it cannot be a ground for discarding the testimony of the eyewitnesses. Apart from this, it is pertinent to mention here that accused persons were not unknown to the eyewitnesses. In these circumstances, there was no difficulty in identifying the accused persons by the eyewitnesses. 18- From the evidence on record, it is thus quite clear that accused persons committed offence under Section 302/34 I.P.C. The role assigned to the accused Sugriv Pal is of catching hold. Accused Smt. Basmati has played the role of exhortation, whereas accused Jiwandhan Pal gave knife blows to the deceased. In this way, common intention of the accused persons for committing murder of the deceased has been established and the learned trial court has rightly convicted these accused persons under Section 302/34 I.P.C. 19- For the reasons as stated above, we do not find any sufficient reason to interfere with the conviction and sentence, recorded by the trial court against accused/appellants Jiwandhan Pal, Sugriv Pal and Smt. Basmati under Section 302/34 I.P.C. The appeal lacks merit and is liable to be dismissed. 11 20- Accordingly, the appeal is dismissed. The impugned judgment and order dated 29.8.1997 is hereby confirmed. Appellants Jiwandhan Pal and Sugriv Pal are in jail. Appellant Smt. Basmati is on bail. Her bail bond is cancelled and sureties discharged. She shall be taken into custody forthwith to serve out the sentence awarded by the trial court. 21- Let the record be transmitted to the trial court for compliance to be reported to this Court within two months. (Nirmal Yadav, J.) (B.C. Kandpal, J.) April 26, 2010 SP