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 Case Criminal Appeal No. 106 of 2006 Date of decision :-13.06.2007 A.F.R. (Approved for Reporting) Not approved for reporting Date :-13.06.2007 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. 106 of 2006 (Old No. 1339 of 1989) 1. Madan S/o Jungal 2. Fulla S/o Jungal Both R/o village Manakheri Police Station Manglaur District Haridwar 3. Ratipal S/o Ballan R/o village Mannakheri P.S. Manglaur District Haridwar ...Appellants Versus State … Respondent Delivery of Judgment :13th June, 2007 Mr. R. P. Nautiyal learned Advocate with Sri Mohd. Azim learned counsel for the appellants. Mr. Amit Bhatt, learned Addl. G.A. for the respondent-State. Coram: Hon’ble Rajeev Gupta, C.J. Hon’ble J. C. S. Rawat, J. Per Hon’ble J.C.S. Rawat, J. 1. This Criminal Appeal has been directed against the judgment and order dated 30.05.1989 passed by Shri A. L. Verma, the then Addl. Sessions Judge, Roorkee in S.T. No.29/1988 State Vs. Madan & others, whereby the appellants were convicted and sentenced to undergo imprisonment for life under section 302/34 IPC. 2. The facts, in nutshell, are that on 18.07.1987 at about 10:30pm Rohtash and Vedpal were coming to their village Manakheri, P.S. Manglaur from Lehboli. When they reached near the house of Jagdish Jheever, all of a sudden, the appellants Madan, Fulla and Ratipal armed with ‘Tabbal’, ‘Ballum’ and ‘lathi’ respectively emerged there and surrounded Vedpal with intention to assault him. All the appellants started assaulting Vedpal with their weapons. Rohtash rushed to the house of Ismpal (brother of Vedpal) where Dharmendra Pal and Ishmpal met him. Rohtash narrated the entire story of the incident to Dharmendra Pal and Ishmpal. Rohtash, Dharmendra Pal and Ishmpal immediately reached at the scene of occurrence and saw the appellants beating Vedpal. Vedpal jumped towards the yard of Jagdish Jheever, but the accused persons also reached there and assaulted him there also. Surajmal and Gyan Singh also reached at the spot immediately after the arrival of Ishmpal, Dharmendra Pal and Rohtash. The appellants fled away from the place of occurrence and Vedpal succumbed to his injuries at the spot. The witnesses saw the accused persons in the light of torch. Thereafter, a written report Ex.ka.7 was lodged by Dharmendra Pal at 12:50am in the intervening night of 18/19.07.1987. On the basis of written report Ex.ka.7, a Chick F.I.R. Ex.Ka.8 was prepared and necessary entry was made in the general diary. S.I.-V. K. Sharma PW6, Investigating Officer started the investigation and sent the dead body for postmortem after preparation of the inquest report. The I.O. prepared the site plan. He also recorded the statement of the witnesses. He also took the sample of blood stained earth and plain earth from the place of occurrence. After completing the investigation, the Investigating Officer submitted the chargesheet before the court. 3. After submission of chargesheet the appellants- accused were committed to the court of sessions for trial and the trail court framed charges against the accused persons. They denied the charges levelled against them and claimed their trial. 4. The prosecution in support of its case examined as many as seven witnesses. Dr. T. S. Parmar PW1 is the Medical Officer, who conducted the postmortem of the dead body of the deceased. Krishan Dutt Gautam PW2 was a formal witness, who proved he chick report. Ishmpal PW3, Rohtash PW4 and Dharmendra Pal PW5 are the eye-witnesses of the incident. Dharmendra Pal PW5 was also the informant of the case. V.K. Sharma PW6 is the Investigating Officer of this case. After completing the investigation, he submitted the chargesheet Ex.Ka.10. Head Constable Dayachand PW7 was also a formal witness. 5. The accused persons were examined u/s 313 Cr.P.C. and they have pleaded not guilty to the offence. They have stated that they have been falsely implicated in this case. 6. The learned trial court on appreciation of the evidence held the appellants guilty and convicted and sentenced them as mentioned above. 7. We have heard learned counsel for the appellants and learned Add. G.A. for the respondent-State Perused the record carefully. 8. At the outset, it needs to be mentioned here that it is not disputed that the deceased Vedpal died on account of the injuries sustained by him on the date of occurrence. Dr. T. S. Parmar (PW1), Medical Officer Conducted the postmortem of deceased-Vedpal on 20.07.1987 at 10am and found following ante-mortem injuries on the person of the deceased. (i) Incised wound 10cm x 2cm x brain deep in the top of head extending to left side and 6cm above the left ear with #(fracture) of left frontal bone. (ii) Incised wound 11cm x 3cm x brain deep on left side of head extended downward to back of neck with # of left temporal & parital bone tailing down words. (iii) Incised wound 2cm x 1cm x muscle deep on left side just above the left color bone. (iv) Abrasions 9cm tailing on left side of chest extending downwards from injury no.2. (v) Incised wound 7cm x 2cm x bone deep on the back of right shounder tailing downword. (vi) Incised wound 2cm x 1cm x muscle deep on the back side 7cm below the injury no.5. (vii) Incised wound 2cm x 0.5cm x muscle deep on the back of neck. (viii) Incised wound 2cm x 0.5cm on the back of left side 8cm obliquely from left S.M. joint (ix) Incised wound 2cm x 1cm x muscle deep on the back of head below the occipital protuberance. In the opinion of Medical Officer, the death of the deceased was caused due to shock and haemorrhage resulting from the ante-mortem injuries sustained by him. Thus, it is amply established that deceased-Vedpal met a homicidal death on account of injuries sustained by him. 9. It is admitted case of the parties that the appellants namely Madan and Fulla are real brothers and the appellant Ratipal is also related to Madan and Fulla. The deceased Vedpal and Ishmpal are real brothers. Dharmendra Pal PW5 is the nephew of the deceased. Appellants, deceased and the eye-witnesses are resident of the same village i.e. Manakheri. As such, the parties are known to each other since before the date of incident. 10. Now, we have to consider whether the appellants- accused were responsible for causing death of the deceased. The prosecution had adduced the evidence of the eye-witnesses Ishmpal PW3, Rohtash PW4 and Dharmendra Pal PW5. Dharmendra Pal PW5 eye- witness has lodged the report of the incident. All the eye-witnesses have fully supported the prosecution version. Rohtash PW4 has stated in his evidence that on 18.07.1987 at about 10:30pm he alongwith deceased Vedpal was coming to the village from Lehboli. When they reached near the house of Jagdish Jheever, all of a sudden, the appellants Madan, Fulla and Ratipal armed with ‘Tabbal’, ‘Ballum’ and ‘lathi’ respectively emerged there and surrounded Vedpal and started assaulting him. Rohtash immediately rushed to Ismpal’s house situated nearby the place of incident and narrated the story about the incident to Dharmendra Pal and Ishmpal. Thereafter, Rohtash, Dharmendra Pal and Ishmpal reached at the scene of occurrence alongwith torches in their hands and saw the appellants beating Vedpal with ‘Tabbal, ‘Ballum’ and ‘lathi’. In order to save himself from the assaults Vedpal jumped in the premises of jagdish Jheever, but the appellants-accused also reached there and again assaulted him. Thereafter, the appellants fled away from the place of occurrence and Vedpal succumbed to his injuries at the spot. Ishmpal PW3 and Dharmendra Pal PW5 have also corroborated the evidence of Rohtash PW3. They were cross examined at length, but nothing could be elicited in their cross examination to discredit their testimony. All the eye-witnesses remained consistent in their cross examination with regard to the factum of incident. There is no doubt about the presence of these three eye-witnesses at the scene of occurrence. 11. Learned counsel for he appellants contended that the trial court has lost sight of the fact that there was enmity between the appellants and the deceased. The evidence of eye witnesses should not have been acted upon. Learned Addl.G.A. for the respondent-State refuted the contention and contended that there is no infirmity in the conclusion arrived by the trial court to warrant any interference. The evidence has been analyzed in great detail and with great caution by the trial court. The appellants-accused and deceased were on inimical terms. The eye witnesses were related or known to the deceased. The appellant-Madan has stated that Ishmpal PW3 is the real brother of the deceased and Dharmendra Pal is the nephew of the deceased. The defence has also stated in the statement recorded under section 313 Cr.P.C. that Hari Ram – uncle of Rohtash gave evidence against the father of the appellant Madan and in that case the father of the appellant Madan was acquitted. He ash further stated that the deceased was prosecuted under section 354 IPC in which the father of the appellant Madan appeared as witness and Vedpal-deceased was convicted and released on probation. Fakira - grandfather of the appellant Madan filed a revenue suit against Ramji Lal (father of the deceased), Birbal(father of Dharmendra Pal) and Ishmpal which was decreed against them and they were evicted from the land in dispute. The appellant Madan has further stated in his statement recorded under section 313 Cr.P.C. that his grandfather Fakira also filed a suit in the consolidation court against Birbal(father of Dharmendra Pal). He has further stated that the deceased molested Smt. Bala w/o Butta and he was charged under section 354 IPC by the police in which his father Tungal and his cousin Ratipal were nominated as witnesses. In support of his defence to show enmity between the parties following documents have been filed before the trial court:- (i) Ex.kha.1 – copy of the judgment dated 03.04.1987 passed by Additional Munsif Magistrate, Roorkee in Criminal Case No.223/87 State Vs. Vedpal under section 354 IPC, P.S. Manglaur. (ii) Ex.kha.2 – copy of the judgment dated 1.4.1971 passed by Magistrate Ist Class, Roorkee in Case No.231/69 State Vs. Fakira under section 353 IPC, P.S. Manglaur. (iii) Ex.kha.3 – copy of written report dated 13.07.1987 lodged by Tungal – the father of Madan against the deceased Vedpal under section 323 IPC P.S. Manglaur. (iv) Ex.kha.4 – copy of the decree passed by Assistant Collector, Roorkee in case No.13/77 under section 209 Zamindari Abolition Act. (v) Ex.kha.5 – copy of the decree passed by the Munsif Devband in case No.342/66 Fakira Vs. Harpal Singh & others. (vi) Ex.kha.6 – copy of the charge against the deceased Vedpal in case no.236/87 Mahendra Vs. Vedpal under section 323, 325, 504 & 506 IPC P.S. Manglaur. 12. Perusal of the aforesaid Ex.kha.1 to 6 reveals that there was enmity between the parties. It is well settled principle of law that animosity is a double-edged sword. It cuts both sides. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last person to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge alongwith the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a sweeping generalization. Each case must be judged on its own facts. After considering the evidence of the prosecution witnesses the trial court found the evidence to be implicitly truthful and reliable. The presence of the eye- witnesses at the place of occurrence is proved. We do not find any reason to accept the plea raised by the learned counsel for the appellants. The presence of the eye-witnesses at the place of incident was established and their evidence cannot be thrown out as unreliable or tainted merely because there was a chain of litigations between the parties. This circumstance would not warrant mechanical rejection of their testimony. The evaluation with caution was needed which has been done by the trial court as well as by us. The manner of assault as described by the eye-witnesses Ishmpal PW3, Rohtash PW4 and Dharmendra Pal PW5 was also corroborated by the medical evidence. We have read the evidence and found that whatever was stated is credible and cogent. Thus, we do not find any reason to disbelieve the entire evidence on this score alone. 13. Learned counsel for the appellants contended that the prosecution has not produced the independent witnesses to corroborate the fact of incident. It was further contended that one-Jagdish Jheever in whose premises the deceased was assaulted was not produced before he court. Surajmal and Gyan, who reached at the spot immediately after the eye-witnesses, were also not produced before the court. It was also contended that the incident took place in the village and it has come in the evidence that there were other houses situated near the place of incident, but the prosecution has not adduced the evidence of other witnesses of the locality. It was further contended that the eye-witnesses of the prosecution namely, Ishmpal PW3, Rohtash PW4 and Dharmendra Pal PW5 are related or known to the deceased. Ishmpal PW3 is real brother of the deceased-Vedpal and Dharmendra Pal PW5 is the nephew of the deceased It was further contended that Ishmpal PW3, Rohtash PW4 and Dharmendra Pal PW5, who are said to be the eye- witnesses of the incident, belong to ‘Jat’ community and the appellants-accused belong to ‘Harijan’ community. It was further contended that the appellants-accused are interested witnesses as they are either related or known to the deceased. It as contended on behalf of the appellants that the prosecution could have adduced the evidence of independent witnesses who were also present at the time of incident. Learned Addl. G.A. refuted the contention. It has come in the evidence that immediately after the incident Jagdish Jheever woke up. Thus, it cannot be held that he was also the eye- witnesses of the incident. Report of the process server reveals that Jagdish Jheever had left his village and he was not traceable. It shows that the prosecution has tried its level best to produce him before the court. Therefore, it cannot be held that the prosecution tried to withhold the evidence of Jagdish Jheever. So far as the non-examination of Surajmal and Gyan Singh is concerned, Ishmpal PW3 has stated that Surajmal and Gyan Singh also reached at the spot. Moreover, it is not always necessary to multiply the evidence of the incident on the same point. It has to be seen what is the quality of the witnesses. It is he quality of the evidence and not the quantity, which is required. If the evidence available on record is otherwise satisfactory in nature and can be said to be trustworthy then increase in the number of witnesses cannot be the requirement of the case. It has now almost become a fashion that the public is reluctant to appear and depose before the court especially in criminal cases because of varied reasons. Criminal cases are kept dragging for years to come and the witnesses are harassed lot. They are being threatened, intimidated and at the top of all they are subjected to unnecessary lengthy cross- examination. So, the witnesses avoid to come to the court. The 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 witnesses is concerned, it is true that Ishmpal PW3 and Dharmendra Pal PW5 are related to the deceased. Rohtash PW4 belongs to the same village, but the evidence of these eye-witnesses cannot be discarded on this ground alone. There is no rule of law or prudence which requires that the evidence of a close relation or interested witnesses must be discarded for the simple reason i.e. they are related to each other. We have no reason to disbelieve their testimony. Similarly, being relatives, it would be their endeavour to see that the real culprits are punished and normally they would not implicate wrong persons in the crime, so as to allow the real culprits 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 man 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. 56). 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.” In view of the above discussions, we do not find any force in the contentions advanced by the learned counsel for the appellants. 14. Learned counsel for the appellants further contended that prosecution has failed to establish that there was any source of light at the spot. The incident took place at about 10:30pm in the night and the prosecution has not proved the source of light for the identification of the appellants. It was submitted that it was a dark night. The deceased was coming on the road and the appellants emerged in front of the deceased and Rohtash PW4. it was further submitted that since the appellants could not have recognized the deceased-Vedpal in the dark night, hence the entire prosecution version is unreliable. It was further pointed out that it was a dark night and the appellants could not have been recognized in the dark night by the witnesses, as such the appellants are entitled to be acquitted on this score alone. It was also contended that Ishmpal PW3 has stated in his evidence that he saw the incident for about 20 seconds, whereas Rohtash has stated in his evidence that he saw the incident for about 4 seconds. It was further contended that they saw only fleeing glimpses of the appellants. Learned Addl. G.A. refuted the contention. It has come in the evidence that Rohtash PW4 had a torch in his hand. The proximity at which the assailants would have confronted with the deceased, the possibility of some light reaching there from the glow of stars and the light of torch which was held by Rohtash in his hand. The fact that the murder was committed in the premises of Jagdish Jheever and the eye-witnesses who were also holding the torches could have had enough visibility by the light of the torch to correctly identify the assailants. Over and above those factors, we must bear in mind that the appellants-accused were known to the eye-witnesses and the deceased since before. It is also significant that the deceased and appellants- accused can be recognized by their voice also. This is not a case where the identifying witnesses had only fleeing glimpses of the accused. The parties are known to each other and as such here was no chance of making a mistake about their identity. So far as the contention that Ishmpal PW3 and Rohtash PW4 have seen the incident for about 20 and 4 seconds respectively is concerned, they are rustic villagers and they are not expected to know about the exact time. It is pertinent to mention here that when a witness appears before the court, sometimes he may not stand the test of cross examination, which may be sometimes, because he is a bucolic person and is not able to understand the question put to him by the skilful cross-examiner and at times under the stress of cross-examination, certain answers are snatched from him. When a rustic or illiterate witness faces an astute lawyer, there is bound to be imbalance and, therefore, such type of discrepancy has to be ignored. (vide Krishna Mochi Vs. Vs. State of Bihar 2002 (6) SCC p/81). Thus, there is no reason at all for holding that the appellants-accused were not identified at the relevant time. Therefore, the contention advance by the defence is not tenable. 15. Learned counsel for the appellants contended that the conduct of Ishmpal PW3, who was the brother of the deceased, was unnatural because he did not come forward to rescue his brother and he remained silent at the time of incident. If he was present at the time of incident, it was his natural conduct to rescue his brother. It was further contended that the conduct of PW3 leads to take an inference that he was not present at the time of incident. Learned Addl. G.A. for the respondent-State refuted the contention. The appellants were carrying ‘Tabbal’, ‘Ballum’ and ‘Lathi’ in their hands. The complainant party was unarmed and there is no set of rules regarding the natural reaction. Therefore, it is fully justified in holding that the evidence of the prosecution witness cannot be disbelieved for not having intervened in the fight as there were three assailants who were armed with weapons. Human behaviour varies from person to person. Different people behave and react differently in different situations. Human behaviour depends upon the facts and circumstances of each case. How a person would react and behave in a particular situation can never be predicted. Every person who witnesses a serious crime reacts in his own way. Some are stunned, some become speechless and some stand uprooted from the spot. There is no set of rules of natural conduct. In the case of Ashok Kumar Pandey Vs. State of Delhi 2002 (4) SC 76, the father of the deceased was eye-witness of the incident and he was unarmed. The father of the deceased heard cries of his daughter whereupon he immediately rushed towards the place of occurrence and