IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Chapter VIII, Rule 32(2)(b) Description of case Criminal Appeal No. 171 of 2007 (Old No.2104 of 1986) Date of decision: 31st August, 2007 A.F.R. (Approved for Reporting) Not Approved for Reporting Date Initials of Judge 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. IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 171 of 2007 (Old No.2104 of 1986) 1. Kirti Ballabh S/o Sri Sada Nand. 2. Khima Nand S/o Sada Nand. Both R/o Village Tara Nawar, P.S. Haldwani, District Nainital. ……….. Appellants Versus State …… Respondent Mr. R.S. Sammal, Advocate for the appellants. Mr. Amit Bhatt, Addl. Government advocate for the State. JUDGMENT Coram: Hon’ble Rajeev Gupta, C.J. Hon’ble Dharam Veer, J. RAJEEV GUPTA, C.J. (Oral) The appellants have preferred this appeal under Section 374(2) Cr.P.C. against the impugned judgment dated 01.08.1986 passed by Sessions Judge, Nainital in Sessions Trial No. 229 of 1984, whereby appellant Khima Nand was convicted under Section 302 and appellant Kirti Ballabh under Section 302 read with 34 of the Indian Penal Code with sentence of Imprisonment of Life. 2. The short facts of the case, essential for deciding this appeal, are that: A. appellants Khima Nand and Kirti Ballabh are real brothers. Informant Hari Dutt is father of Kanti Ballabh (since deceased) and Tara Devi is his sister. Kanti Ballabh was employed in Jal Sansthan at Nainital. On 19.10.1984, at about 7:00p.m., when Kanti Ballabh was taking his meals in his house and his father Hari Dutt, sister Tara Devi and mother Smt. Devki Devi were also present there, appellant Khima Nand asked Kanti Ballabh to come out of his house. When Kanti Ballabh came out of the house, appellants Khima Nand and Kirti Ballabh inquired from Kanti Ballabh as to why water was not being supplied to their house. Kanti Ballabh replied that there was some defect in the pipeline and, as such, he could do nothing in the matter. Kirti Ballabh, not being satisfied with his reply, caught hold of Kanti Ballabh by both of his hands and exhorted his brother Khima Nand to assault him. Appellant Khima Nand took out a knife from his pocket and dealt one blow on the chest of deceased Kanti Ballabh. The alarm raised by Hari Dutt attracted witness Jaint Singh. Deceased Kanti Ballabh, after sustaining the injury on his chest, fell on the ground and both the appellants fled away from the place of occurrence. PW1 Hari Dutt and PW3 Tara Devi saw the entire incident in the light of the lantern. B. Hari Dutt, father of Kanti Ballabh, took his injured son first to the dispensary at Village Daulatpur and then to Civil Hospital, Haldwani. The doctor, on examination, declared Kanti Ballabh dead. Hari Dutt, then, lodged the First Information Report by submitting a written report at Police Station Haldwani at 11:20 p.m. The Investigating Officer, after observing the necessary formalities of preparing inquest etc., sent the body of deceased Kanti Ballabh for Post Mortem Examination. The autopsy surgeon found one incised wound on the chest of the deceased as detailed in the Post Mortem Report (Ex. Ka. 3). During the course of investigation, accused Khima Nand and Kirti Ballabh were arrested by the police. After completion of the investigation of the case, the police filed charge sheet against the accused persons alleging commission of the offence punishable under Section 302 read with 34 I.P.C. 3. Accused Khima Nand and Kirti Ballabh abjured their guilt and pleaded false implication to the charges framed by the Trial Court under Sections 302 and 302 read with 34 of the Indian Penal Code respectively. 4. At the trial, the above charges against the accused persons were sought to be proved on the evidence of PW1 Hari Dutt, PW2 Jaint Singh, PW3 Tara Devi, PW4 Head Constable Irshad Ahmad, PW5 Sub-Inspector Karam Hussain, PW6 Dr. B.P. Agarwal and PW7 Constable Rajpal Singh. The accused persons, however, did not examine any witness in their defence. 5. Of the seven witnesses examined by the prosecution at the trial, PW1 Hari Dutt and PW3 Tara Devi are eye-witnesses of the incident of assault on deceased Kanti Ballabh, whereas PW2 Jaint Singh saw the accused persons running away from the place of occurrence. 6. The Trial Court, on a close scrutiny of the evidence led by the prosecution at the trial, found the evidence of the two eye-witnesses PW1 Hari Dutt and PW3 Tara Devi truthful and reliable. The Trial Court further found that the evidence of these two eye-witnesses was amply corroborated by the evidence of PW2 Jaint Singh and the medical evidence of PW6 Dr. B.P. Agarwal, who categorically stated that the incised wound, found on the chest of deceased Kanti Ballabh, could have been caused by means of sharp and pointed object knife. The Trial Court, therefore, held accused Khima Nand and Kirti Ballabh guilty of causing death of deceased Kanti Ballabh on 19.10.1984 and convicted and sentenced them as mentioned above. 7. Mr. R.S. Sammal, the learned counsel for the appellants vehemently argued that the Trial Court has erred in placing reliance on the eye-witness account of PW1 Hari Dutt and PW3 Tara Devi, who are highly interest witnesses, being father and sister of deceased Kanti Ballabh; the First Information Report in the case has been lodged with inordinate delay; and even if the appellants are held guilty of causing that injury on deceased Kanti Ballabh, which resulted in his death, the offence against the appellants would not amount to the offence of murder punishable under Section 302 of the I.P.C. and would, at the most, be culpable homicide not amounting to murder and would be punishable under Section 304 Part II of the I.P.C. only. 8. Mr. Amit Bhatt, the learned Addl. Government Advocate, on the other hand, supported the impugned judgment and contended that PW1 Hari Dutt and PW3 Tara Devi are natural and truthful witnesses and the Trial Court has rightly relied upon their evidence in holding the appellants guilty; and the act of the appellants of causing incised wound on the chest resulting in the death of deceased Kanti Ballabh, in facts and circumstances of the present case, would not amount to anything short of ‘murder’ and would be punishable under Section 302 of the I.P.C. only. 9. The facts that deceased Kanti Ballabh sustained an incised wound on his chest in the night of 19.10.1984 and succumbed to that injury the same night were neither under challenge before the Trial Court nor are under challenge before us in this appeal. Even otherwise, there is sufficient ocular evidence of PW1 Hari Dutt and PW3 Tara Devi and the medical evidence of PW6 Dr. B.P. Agarwal on record to establish the above facts beyond any shadow of doubt. We, therefore, hold that deceased Kanti Ballabh sustained incised wound on his chest in the night of 19.10.1984 and died a homicidal death on account of the said injury. 10. According to the prosecution case, during the course of altercation between the two appellants and Kanti Ballabh, appellant Kirti Ballabh caught hold of Kanti Ballabh and appellant Khima Nand dealt one knife blow on the chest of Kanti Ballabh, who succumbed to his injury the same night. 11. PW1 Hari Dutt, father of deceased Kanti Ballabh, has categorically deposed that on the fateful day at about 7:00 p.m. when his son Kanti Ballabh was taking his meals, appellant Khima Nand asked Kanti Ballabh to come out of his house. Thereupon, his son Kanti Ballabh went out of the house followed by this witness and Tara Devi. There was sufficient light of the lantern on the spot. In that light he saw that the two appellants were quarrelling with his son Kanti Ballabh. It is further in his evidence that, at this juncture, appellant Kirti Ballabh caught hold of his son Kanti Ballabh and exhorted his brother Khima Nand to assault him. Appellant Khima Nand then dealt a knife blow on the chest of his son Kanti Ballabh. He has further deposed that on his raising hue and cry, PW2 Jaint Singh also came to the place of occurrence. Kanti Ballabh, after sustaining the incised wound on his chest, fell on the ground and then the accused persons fled away. Injured Kanti Ballabh was taken first to Daulatpur Dispensary and then to Government Hospital, Haldwani. The Doctor at Government Hospital, Haldwani examined injured Kanti Ballabh and declared him dead. He then lodged the First Information Report (Ex.Ka.1) at Police Station Haldwani. 12. Though PW1 Hari Dutt was subjected to a lengthy cross- examination, nothing could be elicited by the defence in his cross- examination, which may render his evidence unworthy of credence. The mere fact that this witness is father of the deceased will not render his otherwise cogent and reliable evidence unreliable. Rather this witness, being father of the deceased, would be the last person on earth to spare the real assailants of his son Kanti Ballabh and to falsely implicate the two appellants. On a close scrutiny of the evidence of PW1 Hari Dutt, we find ring of truth in his evidence. In our opinion, he is a reliable witness and the Trial Court has rightly relied upon his evidence. 13. The cogent and reliable evidence of PW1 Hari Dutt stands corroborated by his own First Information Report, wherein all the essential seeds of the prosecution case were spelt out by this witness. The incident of assault on the deceased took place at 7:00 p.m. and the First Information Report was lodged at 11:20 p.m. after covering the distance of about 8 kms. In our opinion, the First Information Report in the present case was not at all delayed and was rather promptly lodged. 14. The eye-witness account of PW1 Hari Dutt further stands corroborated by medical evidence of PW6 Dr. B.P. Agarwal, who, on Post Mortem Examination, found one incised wound of the left side of the chest of deceased Kanti Ballabh. This external injury, in the opinion of this doctor could have been caused by means of a knife. There is hardly any cross-examination of this witness and virtually no cross-examination on this point. 15. The evidence of PW1 Hari Dutt, corroborated by his own promptly lodged First Information Report and the medical evidence of PW6 Dr. B.P. Agarwal, in our considered view, is sufficient to hold appellants Khima Nand and Kirti Ballabh guilty of causing that incised wound on the chest, which resulted in the death of deceased Kanti Ballabh. 16. In addition, the prosecution has led evidence of PW3 Tara Devi, sister of deceased Kanti Ballabh, who, deposing in line with the evidence of PW1 Hari Dutt, has categorically stated that appellant Kirti Ballabh caught hold of her brother deceased Kanti Ballabh and then, on his exhortation, appellant Khima Nand dealt one knife blow on the chest of her brother Kanti Ballabh. She stood firm in her cross- examination and nothing could be elicited by the defence, which may render her evidence unworthy of credence. The learned defence counsel attacked her evidence on the ground that her presence on the spot was not disclosed in the First Information Report, which was lodged by her father PW1 Hari Dutt, and eye-witness of the incident. It is not necessary that the presence of all the eye-witnesses should be disclosed in the First Information Report. That apart, even if her evidence is kept out of consideration, the same will not adversely affect the prosecution case against the appellants, as we have found that the evidence of PW1 Hari Dutt, corroborated by his First Information Report and the medical evidence of PW6 Dr. B.P. Agarwal, is sufficient to hold the appellants guilty. 17. Yet another witness PW2 Jaint Singh has deposed that after hearing the alarm raised by PW1 Hari Dutt, when he came out of his house, he found appellants khima Nand and Kirti Ballabh running away from the place of occurrence and, at that time, appellant Khima Nand had a knife in his hand. He further stated that deceased Kanti Ballabh was lying in an injured condition in front of his house. The minor discrepancies in his evidence, in our opinion, are not sufficient to discard his evidence altogether. Thus, the evidence of PW2 Jaint Singh also corroborates the eye-witness account of PW1 Hari Dutt and PW3 Tara Devi. 18. The infirmities pointed out by Mr. R.S. Sammal, the learned counsel for the appellants in the investigation, in out opinion, are of insignificant nature and do not adversely affect the reliability of the evidence of PW1 Hari Dutt, PW2 Jaint Singh and PW3 Tara Devi. 19. In view of the foregoing discussion of the evidence of the prosecution witnesses, we hold that the prosecution has succeeded in establishing that appellant Kirti Ballabh caught hold of deceased Kanti Ballabh in the night of 19.10.1984 outside his house and exhorted his brother co-accused Khima Nand to assault Kanti Ballabh; and appellant Khima Nand dealt one knife blow on his chest, which ultimately resulted in his death the same night. We, therefore, uphold the finding recorded by the Trial Court holding appellant Khima Nand guilty of causing that incised wound on the chest of deceased Kanti Ballabh, which proved fatal and appellant Kirti Ballabh guilty of sharing the common intention of his co-accused Khima Nand and liable with the aid of Section 34 I.P.C. 20. The next question, which crops up for our consideration in this appeal is about the nature of the offence made out against the appellants. Whether the act of appellant Khima Nand, in causing that incised wound on the chest of deceased Kanti Ballabh which resulted in his death, will amount to the offence of ‘murder’ punishable under Section 302 of the Indian Penal Code as held by the Trial Court or will it amount to the offence of ‘culpable homicide not amounting to murder’ punishable under Section 304 of the Indian Penal Code as contended by the leaned counsel for the appellants? 21. Mr. R.S. Sammal, the learned counsel for the appellants, placing reliance on the dicta of the Apex Court in the cases of Jawahar Lal and another Vs. State of Punjab reported in AIR 1983 SC 284; Jagtar Singh Vs. State of Punjab reported in AIR 1983 SC 463; Tholan Vs. State of Tamil Nadu reported in 1984 CRI.L.J. 478; Hem Raj Vs. The State (Delhi Administration) reported in AIR 1990 SC 2252; Ranjitsinh Chandrasinh Atodaria Vs. State of Gujarat reported in AIR 1994 SC 1060; and Salim Sahab Vs. State of M.P. reported in (2007) 1 SCC 699, contended that as there was no prior ill-will between deceased Kanti Ballabh and appellant Khima Nand; the unfortunate incident of assault on deceased Kanti Ballabh took place all of the sudden during the course of an altercation between them; and appellant Khima Nand is said to have dealt a solitary blow on deceased Kanti Ballabh by means of a knife, which unfortunately proved fatal, the offence against appellant Khima Nand would not travel beyond the one punishable under Section 304 Part II of the Indian Penal Code. 22. Mr. Amit Bhatt, the learned Addl. Government Advocate, on the other hand, highlighting that appellant Khima Nand used a dangerous weapon knife; the most vital part of the body, chest, was selected for causing the injury; and the injury found on the chest of the deceased, in the opinion of the autopsy surgeon, was sufficient in the ordinary course of nature to cause death, contended that the act of appellant Khima Nand, of causing incised wound on the chest of the deceased leading to his death, would certainly amount to the offence of ‘murder’ and would be punishable under Section 302 of the Indian Penal Code only. 23. PW1 Hari Dutt, the father of the deceased, in para 11 of his statement, has categorically stated that there was no prior ill-will or dispute between them and the appellants and they used to visit each others house. There is not even an iota of evidence to even suggest any ill-will, dispute or enmity between the appellants and deceased Kanti Ballabh, which could have motivated the appellants to intend to cause his death. 24. It is the prosecution case itself and the same is evident from the evidence of PW1 Hari Dutt and PW3 Tara Devi that the assault on deceased Kanti Ballabh, at the hands of appellant Khima Nand, was preceded by an altercation between the appellants and the deceased. It appeaers that the appellants were harbouring under the impression that deceased Kanti Ballabh was responsible for the water scarcity in their house. It was in this background that when the deceased replied that the non-availability of water was on account of the defect in the pipeline and he could do nothing in the matter, the appellants got enraged and, in the heat of passion, appellant Kirti Ballabh caught hold of the deceased and the other appellant Khima Nand dealt a solitary knife blow on his chest. 25. It is further apparent from the evidence of the two eye- witnesses PW1 Hari Dutt and PW3 Tara Devi that, after dealing of the knife blow on the chest of the deceased, none of the witnesses intervened or prevented the appellants from repeating further blows on the deceased. The evidence of the eye-witnesses is rather to the effect that immediately after dealing the solitary knife blow on the chest of the deceased, the appellants fled away from the place of occurrence. 26. This, it emerges out that there was no prior ill-will between the two appellants and deceased Kanti Ballabh; appellant Khima Nand had dealt a solitary blow on deceased Kanti Ballabh by means of a knife; and this solitary blow, too, was dealt during the course of an altercation between the deceased and the appellants over a very trivial and petty issue relating to no-supply of water to the appellants’ house. 27. The Apex Court, in the case of Jawahar Lal and another Vs. State of Punjab reported in AIR 1983 SC 284, while considering the offence made out against the appellants in that case, observed in paras 12 to 15, 19 & 20: “12. The only question, we have to examine is whether under these circumstances the offence would be under Section 302 of the Indian Penal Code. 13. According to the learned Sessions Judge, the first appellant was aged 19 years at the time of the occurrence. He has given one blow with a knife. When on receipt of the blow deceased Darshan Singh fell on the ground, there is not the slightest suggestion that the first appellant ever attempted to cause any more harm to deceased Darshan Singh. 14. Section 300 IPC provides that culpable homicide is murder firstly if act by which the death is caused is done with the intention of causing death or, thirdly – if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. There are two other paras setting out circumstances in which culpable homicide would amount to murder. But they are not relied upon by the learned counsel Shri Ashwa ni Kumar and therefore, need not be referred to here. It is, therefore, necessary to confine the examination whether on the facts not now in dispute either para 1 or para 3 or Section 300 is attracted. 15. It was not seriously questioned that para 1 would not be attracted. In the facts and circumstances of this case, as succinctly set out, it is difficult to say that the first appellant intended to cause the death of the deceased. Emphasis was laid on para 3 and it was urged that the case would be covered by para 3 of Section 300. It was urged that the first appellant not only intended to cause a particular injury which is alleged to have been inflicted, but on objective evidence of the medical officer the injury inflicted is shown to be sufficient in the ordinary course of nature to cause death, and therefore, para 3 would attracted. Following a trivial dispute, first appellant, be a young immature boy aged about 19 years, gave one blow with a knife. The incident occurred at about 10.00 p.m. The light available was from an electric lamp post in the street. In this light upon a trivial quarrel, only one blow without any attempt at giving a second blow, was inflicted and that fell on the chest. Could it be said that the injury which inflicted was the particular injury which was intended to be inflicted? If the answer is in the negative and it ought to be so, the important requirement in the first part of para 3 would not be satisfied. Merely because the blow landed on a particular spot on the body, divorced from the circumstances in which the blow was given, it would be hazardous to say that the first appellant intended to cause that particular injury. The weapon used was the usual handy weapon, a Punjabi generally carries a knife. The first appellant was near his shop. He did not attempt to inflict any more harm. In the available dim light, the blow landed on the chest. In our opinion, in these circumstances, it would be difficult to say that the first appellant intended to cause that particular injury. Even if the injury inflicted proved to be fatal, the case would not be covered by para 3 of Section 300. 19. Having kept this criteria under view, we are of the opinion that the offence committed by the first appellant would not be covered by clause thirdly of para 3 of Section 300 and therefore, the conviction under Section 302 IPC cannot be sustained. 20. What then is the offence committed by the first appellant Looking to the age of the first appellant at the time of the occurrence, the nature of the weapon used, the circumstances in which one blow was inflicted, the time of the day when the occurrence took place and the totality of other circumstances, namely, the previous trivial disputes between the parties, we are of the opinion that the first appellant could be attributed the knowledge that he was likely to cause an injury which was likely to cause death. Accordingly, the first appellant is shown to have committed an offence under Section 304 Part II of the Indian Penal Code and he must be convicted for the same and sentenced to suffer rigorous imprisonment for five years maintaining the sentence of fine.” 28. In the case of Jagtar Singh Vs. State of Punjab reported in AIR 1983 SC 463, wherein accused Jagtar Singh was found guilty of dealing one knife blow on the chest of the deceased resulting in his death, the Apex Court, while holding that the above act of accused Jagtar Singh was punishable under Section 304 Part II of the I.P.C. only, observed in paras 7 & 8: “7. Undoubtedly, PW 2 Dr H.S. Gill opined that the blow on the chest pierced deep inside the chest cavity resulting in the injury to the heart and this injury was sufficient in the ordinary course of nature to cause death. The question is whether in the circumstances in which the appellant gave a blow with a knife on the chest, he could be said to have intended to cause death or he could be imputed the intention to cause that particular injury which has proved fatal? The circumstances in which the incident occurred would clearly negative any suggestion of premeditation. It was in a sudden quarrel to some extent provoked by the deceased, that the appellant gave one blow with a knife. Could it be said that para 3