IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO. 888 OF 2001 Shailesh Kumar ….....Appellant (in Jail) Versus State of Uttar Pradesh ….…….Opposite Party. Present:- Sri B.S. Adhikari, Advocate for the appellant. Sri Nandan Arya, AGA for the State of Uttarakhand. Sri Manish Arora, Advocate for the complainant. Coram: Hon’ble Prafulla C. Pant, J. Hon’ble Sudhanshu Dhulia, J. Sudhanshu Dhulia, J. This criminal appeal arises out of a judgment of trial court dated 31.8.2000 by which the appellant/accused has been convicted under Section 302 IPC and has been sentenced for life imprisonment. The case of the prosecution is as follows : An FIR was lodged on 21.6.1992 at Police Station Doiwala by Sri Rajendra Singh, father of the deceased (Gajendra Singh) stating that his son had gone with his two friends, namely, Suresh and Sunil Kandwal, PW2 and PW3 respectively to a place called “Lachchhiwala” for picnic and while they were returning from the said excursion, they met the accused (Shailesh), who was on a motor cycle who stopped Gajendra Singh and said that today he is going to settle his dues with him and whipped out a knife with which he gave first blow to Gajendra Singh on his chest and thereafter stabbed him on the stomach, and then brandishing his knife towards the two eye- witnesses, namely, Suresh and Sunil Kandwal, the assailant ran away, leaving his motor cycle on the spot. It is further stated that the two eye-witnesses Suresh and Sunil Kandwal, took the injured Gajendra Singh to the nearby upgraded Primary Health Centre at Doiwala, which was about 2-3 Kilometres from the place of incident from where Suresh ran towards the house of the deceased to inform the father of Gajendra Singh about the incident. Immediately within one hour, the father of the deceased also reached the Primary Health Centre, where the Doctors after giving first-aid to the injured 2 Gajendra Singh referred him to the Doon Hospital at Dehradun. He was brought to Doon Hospital by Maruti Car at about 3:50 p.m., and by 6:55 p.m., he was declared dead. The Post Mortem Report shows that the following ante-mortem injuries were caused on the body of the deceased: “1. Incised wound 2.5 cm X 0.5 cm on left side of chest 3 cm above the nipple. 2. Incised wound 2.5 cm X 0.5 cm. Left side abdomen 9 cm above umbilicus and 5 cm to the left of umbilicus.” Both these ante-mortem injuries have been caused by a sharp edged weapon i.e. knife. Both the injuries are on the vital parts of the body, namely, chest and stomach. Meanwhile the accused/appellant was caught at about 6:00 p.m. on the same day by Investigating Officer H.R. Zaidi, and on his pointing out, the weapon used in the offence i.e. the knife was also recovered nearby a river bank. Apart from this, the motor cycle which the appellant had left on the spot was traced to the father of the appellants, being registered in his name having Registration no. UP 07 – 9470 (as per the RTO). During the trial, PW 1 i.e. the complainant, who is the father of the deceased, elaborated the version which he had already given in the FIR. He also stated that while he was with the injured i.e. his son Gajendra Singh, at the relevant time at about 3:00 p.m. or so, Gajendra Singh stated to PW 1 that the injuries have been caused to him by the assault made on him by the accused Shailesh. There is absolutely no infirmity in the version given by PW 1 before the court or the version he has recorded in the FIR before the Police. Apart from this PW2 Suresh and PW3 Sunil Kandwal, who are star witnesses to the incident and have been named in the FIR, have also corroborated the story of the prosecution in their statement before the Court. This statement of PW1, PW2 and PW3 is further strengthened from the statement given by the Doctors who examined the body of 3 Gajendra Singh at Primary Health Centre, Doiwala as well as at Doon Hospital, namely, Dr. S.P. Verma (PW 5) and Dr. Ashok Agarwal (PW 8) respectively. Apart from this, it was also shown from the records of Primary Health Centre that the injured Gajendra Singh was brought to Primary Health Centre by his friend Sunil. The entire evidence on record therefore leads to one and only one conclusion which is that the accused (Shailesh) assaulted the deceased by his knife on the vital parts of the deceased, which ultimately led to his death within few hours, on the same day. The defence, on the other hand, has tried to pin point the “loopholes” and lacunas in the version of the prosecution by stating that the deceased was in fact never brought to the Primary Health Centre and that the case of the prosecution rests only on the statement of PW2 and PW3, who were said to have remained with the injured / deceased throughout, who were not independent witnesses, etc., etc. Apart from this, the defence has also taken the ground that there was no motive on the part of the appellant to have killed Gajendra Singh (deceased). Although there was a motive i.e.t` 500/- taken by the appellant from the deceased and the work which he has not done in lieu of the money, all the same, all that is of little relevance in a case where there is a direct evidence against the accused. It is a settled principle of law that in a case of direct evidence motive has little relevance. In the present case, there are two eye-witnesses to the incident, who have corroborated the version of the prosecution whose evidence has been found to be trustworthy by the trial court, and there is no reason for this Court to disbelieve the statement of PW2 and PW3. Apart from this, PW1 who was the complainant and father of the deceased had also corroborated the story and version of the prosecution in its evidence and also his statement about the statement of Gajendra Singh regarding assailant, which amounts to a dying declaration under Section 32(1) of the Evidence Act, inasmuch as, it was given to him by the deceased. Considering all these factors, there is no scope for interference by this Court regarding the conviction made against the appellant/accused under Section 302 IPC. 4 At this stage, however, counsel for the appellant Sri B.S. Adhikari stated that under the facts and circumstances of the case and particularly, in view of the fact that only two injuries have been caused on the body of the deceased, at best the case is made out under Section 304 IPC and not of 302 IPC. In other words, if at all, it is a case of culpable homicide not amounting to murder and not of murder.. In support of his contention, counsel for the appellant has relied upon a recent decision of the Supreme Court in Dhan Singh Vs. State of Haryana 2010(5) Supreme 673. Undoubtedly, the Apex Court in the case cited by the counsel converted the case of 302 IPC into 304 IPC on the ground that only one blow by an iron rod was ascribed by the appellant on the head of the deceased and there was no intention to cause death of the deceased. All the same, it was a case where there was not one but many assailants, who had attacked the deceased. Therefore, on facts alone there is a big difference in the case cited by the appellant and the present case, inasmuch as in the present case there was only one assailant. Moreover, the appellant/accused has caused blow not with iron rod and “laathi” but with knife that too twice on the vital parts of the body of the deceased. Apart from this, the essential difference between two cases is whereas the Apex Court (in the judgment cited by the appellant) had given a finding that there was “no intention to cause death”, the same cannot be said in the present case. Therefore, this plea of the appellant for converting conviction and sentence from Section 302 to 304 IPC, is also rejected. We hold that the appellant has been rightly convicted under Section 302 IPC and the sentence of life imprisonment under the facts and circumstances of the case entirely meets the ends of justice. The appeal, therefore, is wholly without merit and is liable to be dismissed and is hereby dismissed. No order as to costs. (Sudhanshu Dhulia, J.) (Prafulla C. Pant, J.) 15.11.2010 Avneet