In the High Court of Uttaranchal, at Nainital. Chapter VIII, Rule 32 (2) (b) Description of Case. Criminal Jail Appeal No. 393 of 2003 Ashok @ Sameer Vs. State AND Criminal Reference No. 03/2003 Date of decision 6th May, 2005 For the approval of : Hon’ble Mr. Justice Irshad Hussain, J. Hon’ble Mr. Justice Rajesh Tandon, J. - Whether the order/judgment should be (Yes) Sent for reporters for reporting? - Whether the reporters be allowed to (Yes) See the judgment? ISB In the High Court of Uttaranchal, at Nainital. Criminal Jail Appeal No. 393/2003 Ashok @ Sameer S/o Khitiwine R/o Sindhi Dugdh Bhandar, P.S. Kotwali Haridwar ……..Appellant. Vs. State … Respondent. AND Criminal Reference No.03/2003 Sri S.P.S. Panwar, learned Senior Advocate, Amicus Curiae for the appellant. Sri Nandan Arya, leaned A.G.A. for the State. Coram: Hon’ble Irshad Hussain, J. Hon’ble Rajesh Tandon, J. Dated: 6th May, 2005. (Per: Hon’ble Irshad Hussain, J.) Appellant has been convicted and awarded death sentence under Section 302 I.P.C. per judgment and order dated 5.12.2003, passed by Additional Sessions Judge/ Ist F.T.C., Haridwar in Sessions Trial No. 143/1998. 2- Criminal reference under Section 366 of the Code of Criminal Procedure for confirmation of the sentence has been preferred. 3- Briefly stated the prosecution case was that on 14-8-1997 at about 7.15 A.M. Km. Deepa Bisht, while going to her school happened to pass by Jain Mandir Lane in front of Gurudwara of the town of Haridwar. Her father informant, Mahavir Singh and her brother Devendra Singh were then going towards market to make some purchases. As soon as Km. Deepa Bisht reached in the Jain Mandir Lane, appellant Ashok @ Sameer and his companion Rajan son of Mahendra appeared there and seeing her, Rajan (accused) asked the appellant Ashok to kill her as she had been instrumental in bringing disrepute for them. Consequent to this exhortation, appellant Ashok started giving kick and fist blows to Km. Deepa Bisht. Her father and brother moved forward to rescue her but the appellant meanwhile took out a ice slabs breaking steel ‘Sua’ and started giving its blows on her person. Km. Deepa sustained serious injuries on her person. Hearing alarm witnesses Rajesh, Sita Ram and others also appeared at the scene of the incident. Km. Deepa Bisht was then shifted to the hospital in injured state by some persons who have assembled there but she was reported dead by the Medical Officer on arrival at the hospital. 4- It was also the case of the prosecution that few days before this incident appellant Ashok who was employed as a workman with Sindh Dugdh Bhandar had indecently teased Km. Deepa Bisht who has reported the matter to her father and appellant was then scolded and reprimanded for the indecent act. Since the appellant had then felt repentant for his bad behavior the matter was not reported to the police. 5- After the incident, informant Mahavir Singh Bisht got scribed the written report, Ext. Ka.1, from Sri J.P. Pandey and delivered it at the P.S. Haridwar at 8 A.M. On its basis F.I.R, Ext. Ka.3 was prepared and a case under Section 302 I.P.C. was registered against the culprits, vide G.D. Report No.11, Ext. Ka.6 Investigation of the case was taken up by S.H.O. Sri S.K. Tomar. 6- On receiving information for the hospital, Investigating Officer along with S.I. R.P. Pal and other police personnel reached there and directed S.I. R.P. Pal to held inquest on the dead body of Km. Deepa Bisht and he himself left for search of the culprits named in the F.I.R. S.I. R.P. Pal prepared inquest report, Ext. Ka.4 and relevant documents including the challan report, Ext. Ka.14 and packed and sealed the dead body and dispatched it for post mortem, which was conducted by Dr. N. Mehta at 3.30 P.M. on 14.8.1997. Appellant Ashok was arrested by the Investigating Officer at 1.30 P.M. on the day of the incident itself and in the presence of the witnesses, at the instant of the appellant steel ‘Sua’ was recovered from the bushes near a telephone pole by the side of the office of the Forest Department and which was found to be a lonely place, vide memo Ext. Ka.19. Later on the investigation was handed over to S.I. V.K. Sharma, who on completion of the investigation submitted charge sheet, Ext. Ka.23, against the appellant Ashok @ Sameer and Rajan ( accused). Rajan has been acquitted of the charge under Section 302/34 I.P.C. by the learned Sessions Judge. This is how the appeal has been preferred by one of the culprits, appellant Ashok @ Sameer. 7- The appellant had refuted the allegations of the prosecution and contended that the informant has intended to take forcible possession of the room in his tenancy and when the murder of informant’s daughter was committed he was falsely implicated in the case. 8- At the trial the prosecution in order to prove its case has examined twelve witnesses. Constable Anil Kumar ( P.W.11) was recalled for his examination and inadvertently he has been shown as P.W.13 in the record of the trial. Informant Mahavir Singh (P.W.1), Rajesh Lakhera ( P.W.2), Sita Ram ( P.W.8) and Devendra Singh ( P.W.9) have been examined as eye witnesses of the occurrence. Satish Joshi ( P.W.3) is a Panch witness of the inquest; Head Constable Anand Prakash ( P.W.4) is a formal witness of preparation of check F.I.R. etc and the relevant G.D. Reports; Sri N.N. Rai (P.W. 5) was posted as Judicial Magistrate, Haridwar on 16-8-1997 and he was examined to prove the statement, Ext. Ka.13, of the appellant Ashok @ Sameer recorded under Section 164 of the Code of Criminal Procedure; S.I. R.P. Pal ( P.W.6) was examined to prove the inquest held on the dead body of Km. Deepa Bisht and relevant documents; Dr. Deepak Kumar ( P.W. 7) was examined to prove the injury report of witness Devendra Singh when he was examined at 10.30 A.M. on 14-8-1997 vide injury report, Ext. Ka.18 showing no external injury but he complained of pain in front of abdomen on both side inner aspects of it and on the back of right shoulder; Sardar Singh ( P.W.10), a witness of recovery of steel ‘Sua’ on the discovery statement of the appellant and constable Anil (P.W.11) also to prove the factum of recovery of the said weapon of assault. Dr. N.Mehta (P.W.12) conducted post mortem of the dead body of Km. Deepa Bisht at 3.30 P.M. on 14-8-1997 and prepared post mortem report, Ext. Ka.20. The following ante-mortem injuries were detected:- 1- Abrasion on left side of face 1cm X 0.2 cm from left eye. 2- Lacerated wound 1cm x 0.2cm X bone deep on left shoulder. 3- Lacerated wound 1cm x 0.2cm x bone deep on left shoulder. 4- Linear abrasion 2cm x 1.5cm below left shoulder. 5- Penetrating wound 0.3 cm x 0.3cm x deep chest cavity on breast left side, 3 cm from left nipple. 6- Abrasion 0.3cm x 0.2cm left side of neck. 7- Penetrating wound 0.3cm x .03 cm x bone deep on left shoulder. 8- Penetrating wound 0.3cm x 0.3cm x bone deep, margins were lacerated. 9- Penetrating wound 0.3cm x 0.3cm x bone deep on left upper side, 10 cm below from left shoulder. 10- Penetrating wound 10cm below left shoulder on upper arm, 0.3cm x bone deep. 11- Penetrating wound on back right side 0.3cm x 0.3cm x bone deep, below injury no.10. 9- On lateral examination lever, spleen and kidney were found congested. Rib under injury no.5 was fractured and pleura and lungs were also damaged. In the opinion of the Medical Officer the death was caused by shock and haemorrhage as a result of ante-mortem injury no.5 about half day ago. 10- This all is the evidence of the prosecution. No evidence was adduced in defence. Learned Sessions Judge in his judgment observed that the prosecution witness have on oath corroborated the prosecution story and the discrepancies and contradictions in the statements of the witnesses are not of serious nature and therefore came to a definite conclusion that the murder of Km. Deepa Bisht has been committed by appellant Ashok @ Sameer and that the prosecution has failed to prove that the other accused Rajan also took part in the commission of the crime and the appellant alone was accordingly held guilty, convicted and sentenced as aforesaid. 11- We have heard Sri S.P.S. Panwar, learned Senior Counsel, Amicus Curiae for the appellant and the learned A.G.A. and have carefully considered the evidence on record and have gone through the judgment under appeal with the help of the learned counsel for the parties. 12- In the first instance the learned Amicus Curiae led us to the judgment under appeal and submitted that the same does not conform to the legal requirement of Section 354 of the Code of Criminal Procedure because the learned Sessions Judge has neither made critical analysis of the evidence of the prosecution nor gave any reason for the decision to believe the evidence of the witnesses and therefore on this count itself the judgment under appeal is liable to be set aside. We see no force in this argument because the appeal having been preferred by the convict and further the reference being made under Section 366 of the Code of Criminal Procedure, which legally is a continuation of the trial itself, the critical appreciation of the evidence of the prosecution can very well be made now also and merely on the said ground and judgment of conviction of the appellant can not be set aside. 13- Learned Amicus Curiae then referred to the evidence of alleged eye witnesses of the incident and vehemently argued that none of them have actually witnessed the occurrence and the learned Sessions Judge wrongly placed reliance on their evidence on the basis of invalid and improper conclusion that close relations are not expected to falsely implicate the real assailant and also on the ground that the discrepancies and contradictions in the statements of the witnesses are not of serious nature. On the other hand learned A.G.A. fairly submitted that the submission of the learned Amicus Curiae may be relevant only in regard to one of the four eye witnesses viz. Sita Ram ( P.W.8) who though claimed himself to be the eye witness of the actual incident gave out in cross-examination that when he reached at the spot, the victim Km. Deepa Bisht had already been shifted into a rickshaw in an injured state meaning there that she was not made to receive the injuries in his present, but the evidence of the other three eye-witnesses being trustworthy and reliable the learned Sessions Judge made no mistake or error of law in placing implicit reliance on their evidence to come to the conclusion that none other than the appellant Ashok was the author of the fatal injuries of the victim Km. Deepa Bisht. In our considered view the argument of the learned Amicus Curiae in the face of the evidence of the eye witnesses Mahavir Singh (P.W.1), Rajesh Lakehra ( P.W.2) and Devendra Singh Bisht (P.W.9) can not e said to legally sustainable. 14- The reasons are that the incident took place during day light at about 7-15 A.M. and there is no dispute on the point that appellant Ashok was well known to these witnesses. Few days before the incident the appellant, according to P.W. 1 and P.W.9 has made un-complimentary and indecent remark by way to teasing the victim Km. Deepa Bisht and on her complaint the appellant was reprimanded and on the appellant’s showing the gesture of begging to be forgiven for his act the matter was not reported to the police. Therefore, there could not have been any confusion in fixing the identity of the actual assailant of the victim at the time of the incident by these witnesses. Both these witnesses were not seriously cross- examined by the defence on this issue, which indicate that such an incident had infact taken place few days before the ill-fated incident of 14-8-1997 when the victim of the case was assaulted by the appellant. Here it also need to be stated that the claim of the witness Rajesh Lakhera (P.W.2) that he knew the appellant from before the incident was also not questioned in his cross examination by the defence. Therefore, this witness also could not have made any mistake in fixing the identity of the actual assailant. 15- All these three witnesses have been categorical in their assertion that appellant Ashok alias Sameer and his companion Rajan have cornered Km. Deepa Bisht in Jain Mandir lane in front of the Gurudwara while she was going with her school bag at about 7-15 A.M. on the day of the incident i.e. 14.8.1997 and thereafter on the exhortation of Rajan appellant Ashok started assaulting the said victim and before she could be rescued by her father P.W.1 and brother P.W.9, the appellant was able to take out steel ‘Sua’ and gave its blows also on various parts of her body causing serious injuries, resulting which she fell on the ground at that place. P.W. 1 Mahavir Singh and P.W.9 Devendra Singh, the father and brother respectively of the said victim, were then going to Roorkee to purchase sundry items and they in fact were following the victim, who was then going to school. Both these witnesses were confronted with their statements under Section 161 of the Code of Criminal Procedure to contradict their statement that on that day they were going Roorkee to make some purchases. The statement that they were going to Roorkee was not given to the Investigating Officer and merely on account of this omission highlighted by the learned Amicus Curiae , the otherwise reliable evidence of these witnesses could not be safely disbelieved. P.W.1 was an employee of the Roadways Transport Corporation and he categorically stated that on that day he was on leave. Therefore, his claim that he was going to make purchases on that day can not be viewed with any suspicion. It was also quite natural for him to ask his son P.W.9 to accompany him to Roorkee and if both the father and son were then going for the said purpose to Roorkee and happened to be near the place of the occurrence there was nothing unusual in it also. 16- Both P.W.1 and P.W.9 were also cross-examined at length with a view to show that in case they were to go to bus station from their house, they were supposed to prosecute a shorter route in which Jain Mandir Lane in front of Gurudwara, would not come across and both of them would not have any occasion to be at the place of the occurrence at the time of the alleged occurrence on that day. Learned Amicus Curiae referred to those relevant parts of the evidence of both these witnesses and submitted that in fact it is highly doubtful that these witnesses have prosecuted the route from their house which lead to the place near Jain Mandir Lane and in a situation like this these witnesses were not expected to have witnessed the incident and later on after the occurrence they were falsely shown to be the eye witnesses of the occurrence in order to solve the blind murder of the victim and also to support the prosecution case as set up against the appellant and another. Having carefully perused the evidence of both these witnesses we see no force in this argument also because while the witnesses admit of two routes from their house to the bus stand, they categorically stated that they chose that route which pass in front of Gurudwara and near the Jain Mandir Lane where the occurrence took place. Not only this P.W.1, Mahavir Singh has also been categorically in saying that the two routes to the bus stand from his house are almost equal in distance and therefore in a situation like this, it can not be safely accepted that these witnesses were not likely to take up the route which is towards the Bilkeshwar Mandir situate in the north of their house and the road also shown and marked as Bilkeshwar road in the site plan, Ext. Ka.21. The Bilkeshwar road runs in front of Gurudwara and further towards the Jain Mandir Lane where the occurrence took place, as also depicted in the said site plan. In other words the evidence of these witnesses can not be taken to support the submission made by the learned Amicus Curiae that the witnesses were not expected to pass by the side of the place of the occurrence even while going to catch a bus from the bus stand for Roorkee on that day in order to reach there and made certain purchases. 17- It was next argued that the admission of both these witnesses that the victim Km. Deepa Bisht who sustained serious injuries at the scene of the incident was not shifted by them to the hospital and rather other people took her in a rickshaw to hospital admit of an inference that these witnesses were not present at the scene of the incident. No doubt the occurrence having taken place in the presence of the father and brother of the victim, it was expected that the victim will be shifted to the hospital by them but we also can not loose site of the fact that in a situation like this the close relatives being grief-stricken do not find themselves to be so composed as to take sudden decision to themselves shift the victim to the hospital and it is also not uncommon that other people being conscious of the situation come forward to take the victim to the hospital at once so that medical aid may be provided to save the life of the victim. In this case also it is so happened as stated to by both these witnesses and the victim Km. Deepa Bisht soon after the accident was taken in a rickshaw by others to the hospital where she was unfortunately reported as brought dead. Therefore, merely because these witnesses themselves having not preferred to pick up the victim and take her to the hospital at once their behaviour would not detract from placing implicit reliance on their otherwise reliable evidence regarding the actual occurrence of assault made by the appellant in their presence. In a situation like this the informant P.W.1 was also not expected to verify the identity of those persons who took the victim to the hospital from the scene of the incident, even if the names of these persons such as Wilson peter and Subhash Peter were reported by the Medical Officer when the memo was sent to the police station and entry, Ext. Ka.10 was got to be made in the G.D. of that day, that is, 14-8-1997. There was nothing wrong in P.W.1 saying that he do not knew Wilson Peter who was later on told to be the conductor of a bus. In fact both P.W.1 and P.W.1 have also soon reached the hospital where the victim was taken by others from the scene of the incident and this was the reason that eye witness Rajesh Lakhera (P.W.2) affirmed their presence at the gate of the hospital when he also went there after witnessing the incident. This witness has stated that he had seen the father and brother of the victim Km. Deepa standing at the gate of the hospital where large crowd has also assembled which was quite natural after the news of the incident of assault of a young girl gets currency in and around the locality and out of curiosity the residents rush to the hospital. In short the above factor highlighted with reference to the behavior of P.W. 1 and P.W.2 can not be taken to have any adverse telling effect on the credibility of their evidence. 18- Against eye witness Devendra Singh (P.W.9) it was also argued that in order to show his presence at the scene of the incident it was falsely alleged that he sustained injuries also at the hands of the assailants while making an attempt to rescue his sister Km. Deepa Bisht and to bring home the point of view attention was drawn to his medical examination report, Ext. Ka.18 and evidence of Dr. Pradeep Kumar ( P.W.7) who prepared this report after medically examining the witness Devendra Singh Bisht. The Medical Officer has not found any eternal injury, but reported that the injured complained of plain in abdomen and on the back of right shoulder. Learned Amicus Curiae submitted that in fact the witness Devendra Singh had not received any injury and the medical evidence was procured with a view to affirm the false claim that he was present at the scene of the incident and was also assaulted. The witness Devendra Singh categorically stated that he received invisible injuries while he was trying to save his sister. P.W. 1 Mahavir Singh also corroborated his evidence and even stated that either of the two assailants had struck a brick on the person of his son resulting which the bone of the hand of the son was fractured. No doubt there is embellishment in the claim but it appear to be so in view of the Devendra Singh having complained of pain on the back of right shoulder as reported to by the medical officer in the injury report, Ext. Ka.18. Perhaps on that basis P.W.1 claimed that his son’s bone was fractured. At any rate the exaggeration which is not unusual even in the statement of a truthful witness can not be taken to detract from placing reliance on the evidence of the witnesses in regard to the actual occurrence. 19- To discredit the evidence of informant eye witness Mahavir Singh the learned Amicus Curiae referred to the F.I.R. of the case regarding which some confusing statement has been given by the informant eye witness, P.W.1. In examination-in- chief P.W.1 stated that he got scribed the written report Ext. Ka.1 at the hospital from J.P. Pandey on his dictation. In cross- examination he gave out that in the hospital J.P. Padey was one of the member of the public which had assembled there and that the written report was prepared on the basis of replies given by him to the questions put to him by Sub-Inspector of Police. At another occasion when the witness was cross-examined, he gave out that the name of the father of the appellant was asked by the Sub-Inspector when the report was got prepared at the dictation of the said Sub-Inspector of the Police at the Police Station. The witness also stated that he can make his signatures and can also read Hindi by clubbing the Hindi letters. He also stated that he is not a literate person. It is of significance that such a person who could only make his signatures and hardly read the Hindi language, was examined in the case of five different dates in a period of about four years. He was first of all examined on 23.1.1999; secondly on 22.8.2000; thirdly on 19-3-2001; fourthly on 12.2.2002 and lastly on 17-1-2003 and that too with the considerable gap of large number of months. His cross-examination continued on last four different dates with considerable gap. When the examination of even an educated witness would be taken in such a manner he too is expected to be confused in regard to various events pertaining to the incident what to think of a person who is not literate and can only make his signature in Hindi and read the Hindi language hardly by clubbing its letters. By lapse of time and loss of memory the informant Mahavir Singh was thus liable to be confused by searching and piercing examination again and again on various dates with considerable gap and this appear to