IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL (Chapter VIII, Rule 32 (2)(b) Description of Case Criminal Appeal No. 545 of 2001 And Criminal Appeal No. 549 of 2001 And Criminal Appeal No. 550 of 2001 Date of decision : 7th May, 2007 A.F.R. (Approved for Reporting) ____________________________ Not approved for reporting Date : 07.05.2007 Initials of Judge Note : Bench Reader will attach this at the top of the first page of the judgment when it is put up before the Judge for signature. HIGH COURT OF UTTARAKHAND, AT NAINITAL Criminal Appeal No. 545 of 2001 (Old No. 482 of 1992) 1. Girish Chandra aged about 36 years S/o late Pandit Shambhu Dutt Pandey R/o village Sarket, Patwari Circle Dewal Tehsil Tharali, District Chamoli 2. Ganga Singh aged about 32 years S/o Shri Beer Singh R/o Village Purna, Patwari Circle Dewal Tehsil Tharali District Chamoli … Appellants Versus State … Respondent AND Criminal Appeal No. 549 of 2001 Pramod Kumar S/o Shri Ram Kishan Dass R/o village Tehsil P.S. Ram Nagar District Nainital … Appellant Versus State … Respondent AND Criminal Appeal No. 550 of 2001 Mumtaz Ahmad S/o Ali Hussain R/o Vanmulpura House No.5 Azad Nagar Haldwani, District Nainital … Appellant Versus State … Respondent Mr. Pankaj Purohit, Advocate for the appellant-Girish Chandra Mr. G.C. Kanpal and Mr. P.S. Danu, Advocates for the appellant-Ganga Singh. Mr. J.S. Virk, Advocate for the appellant- Pramod Kumar. Mr. Rajendra Kotiyal, Amicus Curiae for the appellant-Mumtaz Adhmad. Mr. G.S. Sandhu, Govt. Advocate for the respondent-State. Coram: Hon’ble Rajev Gupta, C.J. Hon’ble J .C. S. Rawat, J. Per Hon’ble J.C.S. Rawat, J. 1. Since all three appeals have arisen out of the common impugned judgment and order dated 19.02.1992 passed by the Sessions Judge, Chamoli in S.T. No.23/1990 State Vs. Ganga Singh and others, hence all these appeals have been heard together and are being disposed of by this common judgment. By the impugned judgment and order, the appellant Mumtaz Ahmad and other appellants i.e. Ganga Singh, Pramod Kumar and Girish Chandra were convicted u/s 302 I.P.C. and u/s 302/34 I.P.C. respectively and sentenced to imprisonment for life. The appellants Ganga Singh, Girish Chandra, Pramod Kumar and Mumtaz Ahmad were also held guilty under section 120-B I.P.C. and they were convicted accordingly. 2. The facts, in nutshell, are that the deceased-Ramesh Chandra Joshi was the resident of village Dewal, District Chamoli and he was carrying on hotel business which was 10 meters away from his house. The accused-appellant Mumtaz Ahmad used to run his shop of repairing watches, which was situated near the hotel of the deceased Ramesh Chandra Joshi. The accused-appellants Ganga Singh and Girish Chandra were also running their business in village Dewal. The accused-appellant Pramod Kumar was vegetable vendor in the same village. Accused-appellants Ganga Singh, Girish Chandra and Mumtaz Ahmad used to take their food at the hotel of the deceased Ramesh Chandra Joshi due to which, money was due on them. They wanted to take their food free of cost, which was not acceptable to the deceased Ramesh Chandra Joshi. Due to this reason, their relations became strained with the deceased Ramesh Chandra Joshi. On 11.05.1990, at about 7:15pm the accused-appellant Mumtaz Ahmad came to the hotel of the deceased in a drunken state and started quarreling with the deceased. The accused-appellant Mumtaz was turned out by the deceased Ramesh Chandra Joshi from his hotel and in the meantime Ganga Singh, Girish Chandra and Pramod Kumar also arrived there and took Mumtaz Ahmad inside the shop of Girish Chandra and there they hatched a conspiracy against the deceased Ramesh Chandra Joshi. The accused-appellants stayed there till the time of happening of the incident. Thereafter, at about 10:30pm on the same day i.e. 11.05.1990, the deceased Ramesh Chandra Joshi started going towards his house after finishing the work of his hotel, whereas his brother Kailash Chandra PW4 and his servant Ranjeet Singh PW2 had stayed at the hotel to close it. When the deceased reached near the shop of accused-appellant Girish Chandra, all the accused-appellants started assaulting the deceased Ramesh Chandra Joshi and the accused Mumtaz Ahmad gave a knife blow on the deceased due to which the deceased sustained grievous injuries on his person. The incident occurred in between the shop of accused-appellant Girish Chandra and one Bhandari hotel where there was a bulb light of the electric pole. The incident was witnessed by Kailash Chandar PW4, Ranjeet Singh PW2 Prem Chandra PW5 and Pratap Singh PW6. After throwing the knife, the accused persons fled away from the scene of occurrence. In order to save the life of the deceased Ramesh Chandra Joshi, Kailash Chandra and other persons took the deceased to P.H.C., Dewal where the deceased was found already dead by Dr. S.S. Bhatia PW1, Medical Officer. Thereafter, Kailash Chandra PW4 brother of the deceased went to the Patwari Chauki, Patwari Kshetra Dewal and lodged a written report Ex.Ka.4 at 11:30pm on the same day i.e. 11.05.1990. On the basis of the written report, a Chick FIR Ex.Ka.9 was prepared and necessary entry was made in the general diary. Gopal Ram PW7-Patwari investigated the matter. The Patwari went to the P.H.C., Dewal and prepared the inquest report Ex.Ka.11. He also visited the place of occurrence and prepared the site plan Ex.ka.12. He took knife Ex.ka.14 and Chappal Ex.ka13 from the place of occurrence. Thereafter, the dead body of the deceased was sent for post-mortem and statement of the witnesses were taken. After completing the investigation, the Patwari-I.O. submitted the chargesheet Ex.Ka.23 before the court. 3. After submission of chargeshet the accused-appellants were committed to the court of Sessions for trial and the trial court framed charges against the appellants. The accused- appellants denied the charges leveled against them and claimed their trial. 4. The prosecution in support of its case examined as many as seven witnesses. Dr. S.S. Bhatia PW1 has examined the deceased on 11.05.1990 at 11:00pm in the P.H.C., Dewal and he declared Ramesh Chandra dead at 1:00am. Ranjeet Singh PW2, who was working in the hotel of the deceased, was an eye-witness of the incident, but he has been declared hostile by the prosecution later on. Dr. Mayank Upadhyaya PW3 is the Medical Officer who conducted the postmortem of the deceased. He proved the postmortem report Ex.Ka.3. Kailash Chandra PW4 is the eyewitness of the incident. He is brother of the deceased and he scribed the written report. Prem Chandra PW5 and Pratap Singh PW6 are the witnesses of the incident and they reached at the spot after hearing the hue and cry of Kailash Chandra PW4 and they found the deceased Ramesh Chandra Joshi has received the injuries on his person and they came to know at the spot that accused- appellant Mumtaz had given the knife blows to the deceased. Gopal Ram PW7 is the Patwari and Investigating Officer of the case. He proved the chick FIR Ex.Ka.9, copy of the G.D., panchnama Ex.ka11 and site plan Ex.ka.12 etc. After completing the investigation, he submitted the chargesheet Ex.Ka.23. The accused-appellants have not adduced any evidence in their defence. 5. The accused-appellants were examined u/s 313 Cr.P.C. and they have pleaded not guilty to the charges. However, the accused-appellants Girish Chandra and Mumtaz have accepted about the carrying on the hotel business by the deceased Ramesh Chandra Joshi and having his hotel in Dewal where the accused Mumtaz Ahmad had also his shop of watches. The rest of the accused-appellants have expressed ignorance about these facts. All the appellants have stated that they have been falsely implicated in this case. Girish Chandra has stated that he was not present at the spot at the time of the incident because his father was ill and he has to attend his father daily. 6. The learned Sessions Judge on appreciation of the evidence held the accused-appellants guilty and convicted and sentenced them as mentioned above. 7. We have heard Mr. Pankaj Purohit, Advocate for appellant Girish Chandra; Mr. G. C. Kanpal & Mr. P. S. Danu, Advocates for appellant Ganga Singh; Mr. J. S. Virk, Advocate for the appellant Pramod Kumar; Mr. Rajendra Kotiyal, learned Amicus Curiae for the appellant-Mumtaz Ahmad and Mr. G.S. Sandhu, Govt. Advocate for the State. Perused the record carefully. 8. At the outset, it need to be mentioned here that it is not disputed that the deceased Ramesh Chandra Joshi died on account of the injuries sustained by him on the date of occurrence. Dr. Mayank Upadhyaya PW3, Medical Officer conducted the autopsy on the body of the deceased on 13.05.1990 at 11:40 a.m. and he found the following ante- mortem injuries on the body of the deceased:- (i) 3 Abrasions reddish brown in colour 2cm x 2cm on right shoulder. (ii) An abraded contusion 5cm x 5cm of left shoulder reddish blue in colour. (iii) A lacerated wound 3cm x 2cm x 1/2cm in front, inside of chest over skin covering inner end of 3rd rib. (iv) An abraded contusion reddish in colour 7cm x 5cm over outer and back aspect of right elbow. (iv)A Stab wound 4cm in length cavity deep present 1cm to the left side of unblicus and 4cm above the horizontal line along unblicus Small intestines bluish in colour protruding through it. (v) An abraded contusion reddish blue 4cm x 4cm present over left knee joint in front. The doctor has opined that the death was caused due to shock and internal haemorrhage, peritonitis due to the ante- mortem injuries especially injury No. 4A sustained by the deceased. The doctor has further opined that the duration of the death was in between 36 hrs. to 40 hrs. prior to the post mortem report. Thus it is not disputed that the deceased Ramesh Chandra Joshi sustained the injuries on his person on the date of occurrence and he died later on. Thereafter, the deceased was taken to P.H.C. where he was found dead. 9. Now, we have to examine who is responsible for causing the injuries on the person of the deceased Ramesh Chandra Joshi. The case rests on the eyewitness account of the witnesses. The prosecution in support of its case examined Ranjeet Singh PW2, Kailash Chandra PW4, Prem Chandra PW5 and Pratap Singh PW6. Ranjeet Singh PW2 is the eyewitness. He was working at the hotel of the deceased Ramesh Chandra Joshi at the time of the incident. He was declared hostile by the prosecution. As such, his evidence was not relied upon by the prosecution as well as by the learned Sessions Judge. Kailash Chandra PW4 is an eyewitness of the incident. He is the brother of the deceased Ramesh Chandra Joshi. He had seen the incident from his hotel where he had been working with his brother deceased Ramesh Chandra Joshi. He had categorically stated in his evidence that the deceased Ramesh Chandra Joshi went towards his house after finishing the work of his hotel, whereas Kailash Chandra PW4 and his servant Ranjeet Singh PW2 had stayed at the hotel to close it. When the deceased Ramesh Chandra Joshi reached near the shop of Girish Chandra, all the accused-appellants pounced upon the deceased Ramesh Chandra Joshi. Accused-appellants Girish Chandra caught neck; Ganga Singh caught right hand; Pramod Kumar caught left hand and Mumtaz Ahmad had given knife blow to his brother deceased Ramesh Chandra Joshi. He has further stated that the incident took place at a distance of about 10 meters from hotel and he saw it from the hotel. When he saw the accused-appellants were causing the injury upon the deceased Ramesh Chandra Joshi, he reached at the spot. When he raised alarm, the witnesses Ranjit Singh PW2, Prem Chandra PW5 and Pratap Singh PW6 reached at the spot. Prem Chandra PW5 has stated in his evidence that he has his hotel situated at Dewal at some distance from the hotel of the deceased Ramesh Chandra Joshi. He had further stated in his evidence that on 11.05.1990 at about 10:30 p.m. when he was in his room after closing the hotel, he heard the alarm raised by Kailash Chandra PW4 and immediately thereafter he reached at the spot and found that the deceased Ramesh Chandra Joshi was lying dead on the road and his brother Kailash Chandra PW4 and other persons were standing there. He has also seen the injuries in the stomach of the deceased Ramesh Chandra Joshi and there he came to know that Mumtaz Ahmad had given knife blow to the deceased Ramesh Chandra Joshi. Thereafter the accused Mumtaz Ahmad ran away from the spot. He had further stated in his evidence that he had not seen any of the accused/appellants when he reached at the spot. Pratap Singh PW6 has stated in his evidence that on 11.05.1990 he went from his house to Dewal market to purchase medicine and stayed in the hotel of deceased Ramesh Chandra Joshi in the night. He has further stated that when he heard the cries of Kailash Chandra PW4, he came out on the road and he had seen that the deceased Ramesh Chandra Joshi was lying on the road and Kailash Chandra PW4 and some other persons were standing there. Kailash Chandra PW4 informed him that accused Mumtaz Ahmad had given the knife blow to the deceased Ramesh Chandra Joshi. He has further stated in his statement that he had not come to know that the other co-accused participated in the incident. 10. According to the prosecution evidence, the deceased Ramesh Chandra Joshi was immediately taken to P.H.C. Dewal at about 11:00 p.m. on 11.05.1990 by his brother Kailash Chandra PW4 in order to save his life. Dr. S.S. Bhatia PW1 Medical Officer posted at P.H.C. Dewal examined the deceased immediately after he was brought to the hospital. After admitting the deceased Ramesh Chandra Joshi in the hospital his brother Kailash Chandra PW4 went to the Patwari chauki Dewal and had lodged written report Ex.Ka.4 prepared by him earlier at the Police chauki at 11:30 p.m. on 11.05.1990. The prosecution has also filed a letter of Dr. S.S. Bhatia PW1 to Patwari Ex.Ka.1 by which a report was sent to the Patwari Chauki mentioned therein that the deceased Ramesh Chandra Joshi has been brought dead and it is a medico legal case. The necessary information was sent to Patwari. The death certificate was also issued at 1:00 a.m. in which it has been stated that the deceased Ramesh Chandra Joshi had been brought dead to the P.H.C. at about 11:00 p.m. after receiving the multiple injuries. He was declared dead at 1:00 a.m. 11. According to the prosecution evidence there are two sets of accused-appellants. At the one hand, according to the prosecution, the accused-appellant Mumtaz Ahmad had given knife blow in the stomach of the deceased Ramesh Chandra Joshi due to which he received the injuries; fell down and his intestine protruded out from the wound. On the other hand, according to the prosecution, there is other set of the accused-appellants Girish Chandra caught neck; Ganga Singh caught right hand; and accused Pramod Kumar caught left hand of the deceased Ramesh Chandra Joshi to facilitate knife blow to the deceased. 12. Accused-appellant Mumtaz Ahmad had given a knife blow to the deceased Ramesh Chandra Joshi. We will firstly discuss the case of the accused-appellant Mumtaz Ahmad. 13. As we have pointed out earlier that Kailash Chandra PW4 is the eyewitness of the incident and he has categorically stated that the accused-appellant Mumtaz Ahmad had given the knife blow to his brother deceased Ramesh Chandra Joshi. Prem Chandra PW5 and Pratap Singh PW6 had categorically stated that they heard the cries of Kailash Chandra PW4 and they came out. They reached at the spot and found that the deceased Ramesh Chandra Joshi was lying dead on the road and his brother Kailash Chandra PW4 was standing there. They have further stated that they found that the deceased Ramesh Chandra Joshi had received injuries in his stomach. They came to know that accused- appellant Mumtaz Ahmad had given the knife blow to the deceased Ramesh Chandra Joshi and thereafter he ran away from the spot. The evidence of the eyewitnesses as stated above is credible and cogent. As regards the testimony of Kailash Chandra PW4 sole eyewitness of the incident is concerned, he had categorically proved the time, place, manner of the incident and also participation of the accused- appellant Mumtaz Ahmad in the incident. He remained consistent during his cross examination. The defence could not elicit anything from his cross examination to discredit his testimony. At the time of the incident Kailash Chandra PW4 brother of the deceased was in the hotel and he had categorically stated in his cross examination that the place of the occurrence was clearly visible from the place where he was sitting in his hotel. The evidence of Kailash Chandra PW4 further reveals that he was sitting near the counter of the hotel in a chair when the incident had taken place. It is also in the evidence that the distance between the place of occurrence and the place where he was sitting is about 10 meters. We do not find any reason why Kailash Chandra PW4 would depose falsely against the accused-appellants. Kailash Chandra PW4 would be interested to give his evidence so as to secure conviction of the accused-appellant for his crime and he would not like to adopt a course by which some innocent persons would be convicted in place of the persons really guilty of the murder of the deceased Ramesh Chandra Joshi. It is true that Prem Chandra PW5 and Pratap Singh PW6 were not present at the time of the incident at the spot. They have only seen that the deceased Ramesh Chandra Joshi was lying on the road. The deceased Ramesh Chandra Joshi sustained stab injuries on his stomach and his intestine has protruded out from the wound. The witnesses reached at the spot immediately after the incident. They remained consistent in the cross examination and their evidence is totally credible and cogent. Their evidence corroborates to the evidence of Kailash Chandra PW4 against the appellant Mumtaz Ahmad. 14. Sri Rajendra Kotiyal, learned Amicus Curiae further contended that the F.I.R. was ante timed. It was further contended that the written report Ex.Ka.4 was handed over at Patwari chauki Dewal by Kailash Chandra PW4 at 11:30 p.m. on 11.05.1990 after the incident. The incident took place at 10:30 p.m. It was further contended that the F.I.R. Ex.Ka.4 indicates that the deceased Ramesh Chandra Joshi was brought to the hospital whereas Dr. S.S. Bhatia PW1 had categorically said to the informant after examining the deceased that he was dead. It was further contended that the F.I.R. was lodged after the death of the deceased Ramesh Chandra Joshi whereas the death certificate issued by Dr. S.S.Bhatia PW1 Ex.Ka.2- mentioned the time of death at 1:00 a.m. on 12.05.1990. Learned G.A. refuted the contention. The prosecution has filed the death certificate Ex.Ka.2 in which it has been clearly written that the deceased Ramesh Chandra Joshi has been brought dead to the P.H.C. at 11:00 p.m. after receiving the multiple injuries. He was declared dead at 1:00am on 12.05.1990. Ex.Ka.1 is the letter sent by the Doctor to the Patwari Dewal. Dr. S.S. Bhatia PW1 has informed the Patwari that the deceased Ramesh Chandra Joshi was brought dead in the P.H.C. and the said letter was sent at 11:00 p.m. on 11.05.1990. Kailash Chandra PW4 has also stated in his evidence that when he took the deceased Ramesh Chandra Joshi to the hospital, the doctor told that he has died. After admitting his brother in the hospital, he went to the Patwari Chauki and he lodged the report Ex.Ka.4 to the Patwari Dewal. The doctor has categorically stated that he did not prepare the injury report. If the deceased would have been alive at the time of the examination, he would have prepared the injury report. Ex.Ka.1 challan to patwari and Ex.Ka.2 death certificate clearly reveal that the deceased was brought dead in the hospital. Thus the certificate issued by the doctor clearly reveals that the deceased was declared dead at 1:00 pm. There is no cross examination of Dr. S.S. Bhatia on this point. It is pertinent to mention here that P.H.Cs. and Hospitals situated in hills are not well equipped and the doctor has to take its own time to declare death by reflection of the persons who is to be declared dead. So doctors in P.H.Cs take their own time to finally declare the death of the deceased. We do not find any force in the submission of the learned Amicus Curiae. 15. It was further contended that according Dr. S.S. Bhatia PW1, the Patwari has reached to hospital at about 10:30 p.m. in the night on 11.05.1990. It was further contended that Kailash Chandra PW4 has stated that the report has been lodged at 11:30 p.m. at Police Chauki and it was not possible for the complainant to lodge the report at the Patwari Headquarter at 10:30 p.m.. Learned G.A. refuted the contention. Perusal of the record reveals that the distance between the Patwari Headquarter and the hospital is about one fulong. Kailash Chandra PW4 brought the deceased to the hospital at 11:00 pm. thereafter he went to the Patwari Chauki. The Doctor has said that Patwari came to the hospital at about 11:30 p.m. The doctor had not stated in his evidence that he reached at the hospital sharp at 11:30 p.m. Thus there may be some variation in the assessment of time on either side. Thus it cannot be said that the report could not have been lodged at 11:30 p.m. It was frankly admitted by the learned Amicus Curiae that the doctor has not recorded anywhere in the register or in any document that Patwari reached at hospital at about 11:30 p.m. Thus the evidence given by the Doctor is only on the basis of his personal remembrance. We, therefore, do not find any force in the contention of the learned counsel for the appellants. 16. Thus there is a prompt lodging of the F.I.R. with the Patwari. The prosecution evidence is further lent credence to the fact that Kailash Chandra PW4 who was present at the scene of the occurrence promptly reported the matter to the patwari at 11:30 p.m. on 11.05.1990. The prompt FIR thus inspires confidence that it was not the outcome of due consultation or deliberation. FIR in a criminal case and particularly in a murder 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 weapons, if any, used, as also 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. The fact that the appellant Mumtaz Ahmad committed the murder of the deceased Ramesh Chandra Joshi further stands corroborated by the prompt FIR. 17. It was further contended on behalf of the learned Amicus Curiae for the accused-appellant Mumtaz Ahmad that the evidence of Kailash Chandra PW4 cannot be relied upon as there are substantial improvements in the statement of the Kailash Chandra PW4. He has further submitted that when Kailash Chandra PW4 appeared before the Court, he deposed before the Court that the accused-appellants Girish Chandra caught neck; Ganga Singh caught right hand; Pramod Kumar caught left hand of his brother decease Ramesh Chandra Joshi and accused Mumtaz Ahmad had given knife blow to the deceased. It was further contended that Kailash Chandra PW4 lodged the report with Patwari