Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 201 of 2005 M rinal Dhali ...…………. Appellant versus State of Uttaranchal ...…………. Respondent Mr. A.S. Gill, Advocate for the appellant. Mr. Amit Bhatt, Addl. Government Advocate for the State. JUDGMENT Coram : Hon’ble Barin Ghosh, C. J. Hon’ble U.C. Dhyani, J. Per: U.C. Dhyani, J. This appeal, preferred under Section 374 of the Code of Criminal Procedure, 1973 is directed against the judgment and order dated 27.10.2005 passed by Sessions Judge, Udham Singh Nagar in Sessions Trial No. 281 of 2004, whereby said Court has convicted accused / appellant Mrinal Dhali under Section 302 of the Indian Penal Code, 1860 and sentenced him to imprisonment of life and also directed to pay a fine of ` 25,000/- in default of payment of which he has been further directed to undergo rigorous imprisonment for a period of one year. 2 2. We have heard learned counsel for the appellant, learned Addl. Government Advocate for the State and perused the lower court record. 3. Prosecution story in brief is that on 31.05.2004 P.W.1 Naresh Mandal (informant) lodged a First Information Report (Ext. Ka-1) with Reporting Outpost, Police Station Sitarganj stating that the informant is resident of Village Ratan Farm No.1 (Nirmal Nagar) and Mrinal Dhali (accused / appellant) used to live in his neighborhood. It is alleged in said FIR that their fields were separated by medh (a small stone symbolising demarcation of fields) and they often have altercation in relation to said medh. On 30.05.2004 the informant had gone to the Village Pradhan and when he came back at about 11:00 A.M., he found Mrinal Dhali (accused / appellant), his mother Putul Dhali and wife quarrelling with informant’s wife and children. At that time Ranjeet Dhali resident of Guru Arbind Nagar, Ratan Farm No. 2 also came there and on his intervention the quarrel was diffused. It is also stated by the informant that he had gone to the Sabhapati of the village at about 8:15 P.M. and when he came back at about 9:00 P.M. he found his child lying in a critical condition. When inquired, his wife Naintara told the informant that at about 8:30 P.M. Amit (victim and son of the informant) was in the courtyard and she was inside the house. On hearing some sound when she came running outside, she saw that Mrinal (accused / 3 appellant) was pressing the neck of the child in the courtyard. When she pounced on him in order to save her child, Mrinal pushed her and her child and then fled away from there. During night they applied massage on the neck of the child, but at about 4:00 A.M. when the condition of the child deteriorated they took him to Shakti Farm Hospital but by the time the child had died. On the basis of said First Information Report, chik FIR (Ext. Ka-2) was prepared and crime no. 32 of 2004 was lodged against the accused / appellant Mrinal Dhali in respect of offence punishable under Section 302 of I.P.C. The police took the dead body in their possession, prepared inquest report (Ext. Ka-6) and the dead body was sent in a sealed cover for post mortem examination. The postmortem examination was conducted by Doctor Chandra Prakash (P.W.6) on 31.05.2004 at 4:40 P.M. and recorded the postmortem injuries in his report (Ext. Ka-5). The Medical Officer found two abraded contusions and one multiple contusion on the dead body. According to the Medical Officer the cause of death was asphyxia due to strangulation. The investigation of the case was taken up by S.I. S.N. Mishra (P.W.7). He interrogated the witnesses, inspected the spot and prepared police form No. 13 (Ext. Ka-8), sketch of the dead body (Ext. Ka- 9), sample seal (Ext. Ka-10) and letter (Ext. Ka-11) to the Chief Medical Officer requesting for postmortem examination. He also prepared site plan (Ext. Ka-13) of the place of occurrence. On 02.06.2004, investigation 4 of the case was taken up by Inspector Chandra Lal (P.W.8). The accused / appellant was arrested on 09.06.2004 by S.I. S.N. Mishra (P.W.7). After interrogating the witnesses and on completion of investigation, the Investigation Officer submitted charge sheet (Ext. Ka-14) against accused Mrinal Dhali for his trial in respect of offence punishable under Section 302 of I.P.C. 4. The Magistrate, on receipt of the charge sheet, after giving necessary copies to the accused committed the case to the court of Sessions for trial. On 30.04.2005, learned Sessions Judge, Udham Singh Nagar, after hearing the parties, framed charge of offence punishable under Section 302 of I.P.C. against the accused, to which he pleaded not guilty and claimed to be tried. On this prosecution got examined P.W.1 Naresh Mandal (informant); P.W.2 Km. Pramila (child witness / eyewitness); P.W.3 Km. Shikha Mandal (another eyewitness); P.W.4 Smt. Naintara (eyewitness and mother of the deceased); P.W.5 Constable Jai Prakash Tamta (who prepared the chik FIR); P.W.6 Dr. Chandra Prakash (who conducted the post mortem examination); P.W.7 S.I. S.N. Mishra (who started the investigation and arrested the accused) and P.W.8 Inspector Chandra Lal (Investigating Officer who submitted charge sheet against the accused). The oral and documentary evidence was put to the accused under Section 313 of Cr.P.C. in reply to which he alleged the 5 evidence adduced against him as false and also stated that he has been falsely implicated in the case. In defence D.W.1 S.C. Kulshrestha was examined. After hearing the parties, the trial court found that the prosecution has successfully proved its case as against the accused and convicted him accordingly. After hearing on sentence, the convict Mrinal Dhali was sentenced to imprisonment for life under Section 302 of I.P.C. and also directed to pay a fine of ` 25,000/- in default of payment of which he has been further directed to undergo rigorous imprisonment for a period of one year. Aggrieved by said judgment and order dated 27.10.2005, this appeal has been preferred by the convict. 5. It will be worthwhile to take up the ante mortem injuries first which have been recorded by P.W.6 Dr. Chandra Prakash in autopsy report (Ext. Ka-5) prepared by him after postmortem examination on dead body of Amit on 31.05.2004 at 04:40 P.M. The same are being reproduced below from the autopsy report:- i) Abraded contusion 2 x 2 cm in the center of neck below larynx. ii) Multiple contusion 2 x 2 cm to 1 x 1 cm present on right side of neck. iii) Abraded contusion 2 x 2 cm on left side of neck present, swelling on neck present. 6 6. According to the Medical Officer who conducted autopsy on the dead body of Amit, the age of the deceased was about 10 years. On external examination rigor mortis was found present all over the body including jaw, neck, upper and lower extremities. Eyes were half open. On internal examination, on exploration of injury no. (i) subcutaneous intramuscular haemorrhage present. Fracture of right corner of Hyoid bone and fracture of larynx and first three tracheal rings present. On exploration of injury nos. (ii) and (iii) subcutaneous and intramuscular haemorrhage present. Brain was found congested. The Medical Officer also found fracture of larynx. First three tracheal rings were found fractured, mucus membrane of trachea found deeply congested. Bronchi found congested. Both lungs were found deeply congested. Petichial haemorrhage present on surface of both lungs. On cutting open the lungs blood was found coming out. The tongue was found in between teeth. Some protruded fracture of Hyoid right corner found present. In the opinion of the Medical Officer the cause of death of the deceased was asphyxia due to strangulation. He further opined that duration to death was between 12-24 hours prior to the postmortem examination. 7. The occurrence took place on 30.05.2004 at 08:15 P.M. and the FIR was lodged on 31.05.2004 at 06:30 A.M. The distance between the place of occurrence and the Reporting Outpost Shakti Farm is 7 2½ kilometers. Subsequent events, which will be discussed in the body of the judgment, will reveal that there is no delay in lodging the FIR. Even if there is some delay it has properly been explained on behalf of the informant and other prosecution witnesses. 8. P.W.1 Naresh Mandal is the informant and father of the deceased. He has deposed on 18.07.2005 that about one year ago he had been to the resident of village Sabhapati. When he returned at 08:30 P.M. his wife Naintara told him that Mrinal Dhali pressed the neck of his ten years old son Amit in the courtyard of the house. Amit’s condition was worsening gradually. When it happened, then they applied massage of turmeric and oil on his neck. Initially he was in a position to speak, but later on he stopped speaking. His condition worsened at 04:00 A.M., then he was taken to the Government Hospital, Shakti Farm, but he could not be saved. 9. The reason attributed to strangulation of Amit by accused / appellant Mrinal Dhali was that the accused harboured grudge against P.W.1 Naresh Mandal (informant) on account of demarcation of their fields. Appellant Mrinal Dhali wanted to widen the area of his field to which Naresh Mandal objected and thereby the accused used to quarrel with the informant. 8 10. P.W.1 Naresh Mandal got a written complaint prepared by one Ravi Kumar. This witness has acknowledged the thumb impression and contents of his complaint (Ext. Ka-1), on the basis of which chik FIR (Ext. Ka-2) was lodged. 11. P.W.2 Km. Pramila was a child witness on the day she tendered before the court on 18.07.2005. After being satisfied with the fact that the child witness knows the meaning of oath, she was administered the same. In her brief examination-in-chief she had said that Mrinal Dhali strangulated her brother with both of his hands and killed him. The incident took place in the night. When Mrinal Dhali was doing so, this sister of Amit witnessed the occurrence. 12. P.W.3 Shikha Mandal is another eyewitness and sister of the deceased. She has said that Mrinal Dhali’s field is adjoining to their field. There is a dispute relating to demarcation. She had a brother named Amit. About one year and two months ago, at 08:30 P.M., while Amit was present in the courtyard and she was inside the house, she heard the cries of Amit. She alongwith her mother and sister were inside the house. Amit was playing in the courtyard. Upon his cries, she alongwith her mother and sister came out in the courtyard only to find that the accused Mrinal Dhali has pressed the neck of her brother with both 9 hands. This witness illustrated in the court as to how Mrinal pressed the neck of Amit. Amit fled away from the scene no sooner he saw that they are coming to the courtyard. He pressed the neck harder and ran away. There was swelling in the neck of her brother. There was a lamppost outside the courtyard. Amit tried to speak but could not. He could convey only through the signs. When her father came back, her mother told him about the incident. Initially they massaged his neck. When Amit’s condition deteriorated, he was taken to Shakti Farm Hospital at 04:00 P.M. only to find that her brother had passed away. 13. P.W.3 Shikha Mandal has further said that Amit died because of strangulation by Mrinal Dhali. The motive of such throttling is assigned to a land dispute going on between them. Mrinal had quarrelled with them in the morning also. P.W.3 Shikha Mandal has asserted that she has witnessed the occurrence by her own eyes. 14. P.W.4 Smt. Naintara is the unfortunate mother of the deceased Amit. Their land and appellant Mrinal Dhali’s land is adjoining to each other. She has said that she had two sons. Eldest one is Surendra and the younger one was Amit who has died. She has illustrated before the court as to how Mrinal Dhali pressed the neck of Amit which resulted into Amit’s death about one year ago at 08:00 P.M. in the courtyard 10 of their house. Amit was playing in the courtyard when the accused committed this crime. This witness has also said that there is a lamppost outside their courtyard. Thus they have seen the incident in the light of that lamppost. When she witnessed the incident, both of her daughters were also present there. They saw this incident when they came out of the house on the cries of Amit. Mrinal Dhali pushed Amit and fled away. Her husband had gone to meet village Sabhapati. When he came back to the house, then this incident was narrated to him by his wife P.W.4 Naintara (this witness). The mother of the deceased told that they applied oil on the neck of Amit when he was unable to speak. When they saw that his condition has deteriorated, he was taken to hospital, but he had passed away by then. 15. Eyewitness account of the above witnesses shows the circumstances under which the FIR was lodged with the police. Initially the husband of P.W.4 Naintara was not present in his house. He had gone to meet the village Sabhapati. When he came back Naintara narrated him the incident. Like any other Indian they were hopeful that Amit will get well soon but when they saw his condition had deteriorated they took him to the hospital only to see that he is no more in this world. Thereafter, they lodged FIR in the morning. Thus the delay, if any, in lodging the FIR has sufficiently been explained. 11 16. The above eyewitness account, subject to the description and appreciation of other formal witnesses Investigating Officer, Medical Officer and also subject to appreciation of evidence of the lone defence witness, reveals that prosecution story is probable, natural and seems to have been proved. 17. FIR in this case is lodged by father of the deceased. In said report only mother has been shown to be the witness. The mother of the deceased (P.W.4 Naintara) has proved the prosecution story. Although the names of her daughters have not been mentioned in the FIR, yet the daughters have also come before the court to depose. Even if the daughters would not have come to depose, this court would have believed the evidence thus tendered by P.W.4 Naintara. In this case, prosecution story is further strengthened by the eyewitness account of the real sisters of the deceased. They are the most natural witnesses. They cannot be termed as chance witnesses. In its most natural way the prosecution story has tendered that Amit was playing in the courtyard of the house, appellant Mrinal Dhali came to him and pressed his neck. The reason attributed is that both the parties had quarrels over the land. Both have land adjoining to each other. Mrinal Dhali wanted to increase the area of his field to which Naresh Mandal resisted and thereby incurred the wrath of Mrinal Dhali. The incident took place at 08:30 P.M. in the night. The 12 boy was taken to the hospital in the morning but could not be saved. Hopeful as they were, local treatment in the neck was given, but to no avail. The Doctor in this case has opined that the cause of death of Amit was asphyxia as a result of strangulation. 18. Learned counsel for the accused / appellant has submitted that the main incident has been suppressed by the prosecution. Infact no one was present on the spot and it is on account of the animosity between the informant and the appellant that the latter has been falsely implicated in the case. Learned counsel for the accused / appellant has also submitted that the site plan reveals that their land is not adjoining to each other. We are unable to persuade ourselves to accept the contention of learned counsel for the accused / appellant, in as much as, even if there is some infirmity in the investigation conducted by the Investigating Officer, the Hon’ble Supreme Court has observed time and again that the prosecution cannot be faulted for that. We are also unable to accept the contention of learned counsel for the accused / appellant that none of the witnesses were present on the spot. We are agreeable to an argument which is contrary to the same, as has been advanced by learned A.G.A. that the testimony of the eyewitness cannot be disbelieved. 19. Another argument put forth on behalf of the accused / appellant is that Amit did not succumb to 13 death on account of pressing of neck by the appellant. Infact he has died because of ill advised massaging done by Amit’s parents. Learned counsel for the accused / appellant agreed during the course of arguments that the injury to the trachea can be caused by pressing of neck by hands also. Moreover, there is no suggestion on behalf of the defence saying that injury to trachea cannot be caused by pressing of neck. According to the postmortem report the death has been caused as a result of asphyxia due to strangulation. Learned counsel for the accused / appellant has also submitted that there was no sufficient light on the place of occurrence. This argument too is not sustainable in view of the fact that all the eyewitnesses have said that there was a lamppost outside the courtyard. There is no suggestion on behalf of the defence before the trial court that it was not moonlit night. There is no suggestion even that light was poor so this court cannot accept this contention advanced on behalf of the accused / appellant dehors the evidence. There is no suggestion by the defence that the lamppost was quite far away, nor was there sufficient light on the spot. The location of the houses of Mrinal Dhali and Naresh Mandal on the site are not disputed. 20. So far as the question of motive is concerned, even if it be presumed for the sake of arguments that the disputants have no adjoining land, yet there are plethora of rulings of the Hon’ble Supreme Court to the 14 fact that when there is direct evidence of the crime the motive goes into oblivion. 21. No question has been asked on behalf of the defence as to for how many hours massage was done in order to explore the possibility of the harm, if any, caused by such massage. If the defence picks up one sentence from somewhere and another sentence from somewhere else and start thrashing it, the same is not acceptable to the court. On the other hand, all the three eyewitnesses have been consistently saying that they have witnessed the occurrence whereby the accused / appellant had pressed the neck of Amit resulting in his death by strangulation. The mother as well as the sisters in the natural course made all out efforts to save the child. There is nothing which is improbable in this prosecution story. 22. P.W.5 Constable Jai Shankar Tamta is a formal witness who has proved chik FIR (Ext. Ka-2), extracts of copy of General Diary Ext. Ka-3 and Ext. Ka-4. 23. P.W.6 Dr. Chandra Prakash, Medical Officer, PHC Jagner, District Agra was posed as Medical Officer in PHC Chakkarpur, police station Khatima on 31.05.2004, whereupon he had conducted the postmortem on the dead body of Amit Mandal, aged 10 years. He had found the ante mortem injuries on the dead body of Amit, a description of which has been given in paragraphs no. 5 15 and 6 of the body of the judgment. This Medical Officer has proved postmortem report (Ext. Ka-5). He has opined that the cause of death is asphyxia due to strangulation. This witness has also opined that the death of Amit had taken place on 31.05.2004 between 04:00 A.M. and 06:00 A.M. 24. P.W.6 Dr. Chandra Prakash was recalled for cross-examination again to prove that the victim could die within five minutes of pressing the neck, if those injuries exist. There was fracture in the larynx of the victim. It was not possible for him to speak. 25. P.W.7 S.I. S.N. Mishra was the Investigating Officer who conducted investigation of the case. This witness got the inquest report (Ext. Ka-6) prepared, inspected the place of occurrence and prepared site plan Ext. Ka-13 and after conducting investigation at some length handed over the investigation to the next police officer. This Investigating Officer endorsed the fact that there was a lamppost at the place of occurrence. The view of the courtyard is not obstructed and remains unhindered. 26. P.W.8 Inspector Chandra Lal is the Investigating Officer who has completed the investigation. He had taken the statement of the accused, affected his arrest, taken the statement of other witnesses under Section 161 of Cr.P.C. and finally submitted charge sheet (Ext. Ka- 16 14) for the offence punishable under Section 302 of I.P.C. against the accused. 27. All these prosecution witnesses were cross- examined on behalf of the accused / appellant, but nothing has come out in their testimony to the benefit of accused Mrinal Dhali. 28. One witness D.W.1 S.C. Kulshrestha, Junior Engineer, Uttaranchal Power Corporation Ltd. has been produced in defence. This defence witness has said that there is no electric connection in the name of Govind Mandal s/o Surendra Mandal. He had never found Surendra Nath or Govind Mandal committing pilferage of electricity. He has said that there is no streetlight etc. in front of houses of Govind Mandal and Surendra Mandal. In the cross-examination this defence witness has admitted that the register which he has brought before the court has not been verified by any officer of UPCL. He has also admitted that the register did not pertain to supply of electricity in the 20 quarters, in which only 7 connections have been given. If any person has been sanctioned electric connection and he posts a bulb outside his residence, the same is not included in the definition of electricity theft. This defence witness has admitted that he has not seen the residences of Shivpad Mandal, Naresh Mandal, Tara Mandal, Devi Das Mandal and Sadhan Mandal in the periphery of 20 quarters. On further cross- examination by learned DGC(criminal), this witness 17 could not elaborate the details of the electricity connections in the area and thereby he could not cast any doubt on the integrity of the prosecution witnesses. So this witness does not help the accused in any way. 29. There is yet another aspect of the case. The appellant was quite familiar and known to the prosecution witnesses. He was residing in their neighbourhood. A neighbour, or a family member, or a colleague, or a person well acquainted can be identified by his voice even, what to talk of his face. The identity of the appellant is not disputed in this case and thereby if the appellant has been harping on this aspect of the case, he was certainly ill advised on this count. When the statement of the accused were recorded under Section 313 of Cr.P.C. he has said nothing specific except general denial of the prosecution story. 30. Learned counsel for the appellant has drawn the attention of this court towards certain inconsistencies in the cross-examination of prosecution witnesses. The same are being discussed here. In the cross-examination of P.W.1 Naresh Mandal it has come that initially Amit was speaking slowly (with interruption), but later on he stopped speaking. The argument of learned counsel was that why did Amit not disclose name of the accused? The said argument is not acceptable. It has come in the evidence of all the eyewitnesses that although his voice could be heard but Amit could not translate that voice 18 into sentences. He could only say through signs. Moreover, what was the necessity of disclosing the name of the accused Mrinal Dhali, when Amit knew that his