IN THE HIGH COURT OF UTTARAHAND AT NAINTTAL (Chapter VIII, Rule 32(2) (b) Description of Case Criminal Appeal No. 157 of 2002 Date of decision : 5th May, 2008 A.F.R. (Approved for Reporting) ___________________________ Not approved for reporting Date : 05.05.2008 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. I N THE HI GH COURT OF UTTARAKHAND, AT NAI NI TAL Cr im in al Appeal No. 1 5 7 of 2 00 2 Doori Lal S/ o Shri Fakir Chand R/ o Udamawala Police Station Bhagatpur District Moradabad Presently residing at: Village Ratanpur-Chakeluwa Police Station Kaladhungi District Nainital …Appellant Ver su s State of U.P. … Respondent Mr. D.S. Mehta, Amicus Curiae for the appellant. Mr. Amit Bhatt, learned Additional Government Advocate for the respondent / State Ju dgm en t Hon’ble J.C.S. Raw at , J. 1. This appeal has been directed against the judgment and order dated 02.07.2002, passed by learned Sessions Judge, Nainital in S.T.No. 212 of 2000, whereby the appellant has been convicted & sentenced to undergo rigorous imprisonment for five years under section 304 Indian Panel Code, 1860 (for brevity as I.P.C.). 2. The facts of this case in nutshell are that the complainant Naubat Singh lodged a report at about 12: 30 p.m. in the intervening night of 6th and 7th October, 2000 in the police station Kaladhungi alleging therein that when he came to his house at about 9: 00 p.m. on 06/ 10/ 2000, he found that the accused/ appellant Doori Lal was quarreling with his wife Smt. Saranwati. The accused/ appellant was hurling abuses upon his wife Smt. Saranwati. The informant’s wife Smt. Saranwati was doing lipie on her courtyard. The accused/ appellant Doori Lal who was the neighbour of the informant objected as to why, she was doing lipie over the part of the land (courtyard) which belonged to him. Smt. Saranwati asserted that the said land (courtyard) on which she was doing lipie belonged to her. The accused/ appellant got annoyed and brought a wooden stick (danda) and wanted to strike a blow on Saranwati but the danda hit his mother-in-law Smt. Bhudhiya. The deceased Smt. Bhudhiya became unconscious at the spot by sustaining the aforesaid injury. Pooran Lal, brother-in-law of the informant was immediately called and they arranged a bullockcart to take the Smt. Bhudhiya to the hospital. When Smt. Bhudhiya was on her way to the hospital, she succumbed to her injury. Thereafter, the dead body was taken to the police station and report of the incident was lodged. The investigation was conducted by the police. After completing the investigation, the Investigating Officer submitted the chargesheet before the court concerned. 3. The accused/ appellant was committed to the Court of Sessions and the trial court framed charge against the accused/ appellant. The accused/ appellant denied the charge and claimed to be tried. 4. The prosecution in support of its case examined informant Naubat Singh PW1, Smt. Saranwati PW2, wife of the informant. Both of them have claimed to be the eyewitnesses of the incident. Dr. M.C. Tiwari PW3 conducted the autopsy on the dead body of the deceased Smt. Bhudhiya. Jasram Singh PW4 is the Investigating Officer of the case. 5. After recording the entire evidence, the accused/ appellant was examined u/ s 313 Cr.P.C. and the appellant denied the entire evidence and pleaded not guilty to the offence. The appellant stated that he has been implicated in the case due to enmity. 6. The accused/ appellant had not adduced any oral or documentary evidence in support of his defence. 7. The learned Sessions Judge on appreciation of the evidence held accused-appellant guilty to the offence charged against him and convicted & sentenced him as mentioned above. 8. I have heard Mr. D.S. Mehta, Amicus Curiae for the appellant; Mr. Amit Bhatt, learned Addl. G.A. for the State and perused the record. 9. At the outset it needs to be mentioned that there is no dispute that death of Smt. Bhudhiya occurred on 06/ 10/ 2000 at about 9: 00 p.m. at the place of the incident. The prosecution in support of its case examined Dr. M.C. Tiwari PW3 who had conducted autopsy on the body of the deceased on 07/ 10/ 2000 and found the following ante mortem injury on the body of the deceased: - (i) There is swelling mark in front of upper part of abdomen. On internal examination heart was found empty but the cavity of the abdomen was full of blood. Lacerated wound was also found on the right lob of lever 2.5 cm. x 2 cm. anterior. The doctor has further stated in his evidence that it was possible that the deceased would have died on 06/ 10/ 2000 between 9: 00 p.m. to 10: 00 p.m. He has further opined that the cause of the death was shock and hemorrhage as a result of ante mortem injury. Apart from this, the prosecution has also adduced the evidence of informant Naubat Singh PW1 and Smt. Saranwati PW2 who have stated that the deceased died due to the injury sustained by her at 9: 00 p.m. on 06/ 10/ 2000 at the place of incident. 10. Now, it is to be seen as to whether the appellant is responsible for causing the injury on the person of the deceased. The case rests on direct evidence of the prosecution. The prosecution has adduced the evidence of informant Naubat Singh PW1 and Smt. Saranwati PW2 who had claimed that they have seen the occurrence. Informant Naubat Singh PW1 is the husband of Smt. Saranwati PW2. On the day of the incident at about 9: 00 p.m. he was in his house with his wife Smt. Saranwati PW2 and mother-in-law Budhiya. Saranwati PW2 was doing lipie over the part of his land (courtyard) which belonged to her. The appellant objected as to why she was doing lipie over the part of the land which belonged to him. Saranwati PW2 asserted the said portion of the land belonged to her so she was doing lipie over the said part of the land (courtyard). Thereupon, the appellant Doori Lal got annoyed and took the wooden stick (danda) and tried to assault upon Saranwati PW2 which in fact hit his monther-in-law Smt. Bhudhiya. She spontaneously fell down on the ground and started to become unconscious. Pooran Lal, brother-in-law of the informant was called to take the deceased Bhudhiya to the hospital. The arranged a bullockcard for the same. The deceased Bhudhiya died on her way to the hospital. Thereafter, the F.I.R. was lodged. Both the witnesses have corroborated each other about the incident. Both the witnesses have given the vivid details of the incident in their deposition. The witnesses have been cross-examined at length but nothing could be elicited from their evidence to discredit their testimony. The trial court after going through the entire evidence has found the entire evidence to be credible and trustworthy. The learned counsel for the defence tried to assail the evidence of the eyewitnesses before the trial court on the ground of the contradictions in between the evidence of eyewitnesses. The plea was rejected by the trial court after thorough scrutiny of the evidence. The trial court found that the evidence of both the witnesses is natural and their presence at the spot was natural. It was further held the accused/ appellant lives in the adjoining house of the complainant and there was no difficulty in identifying the accused/ appellant. With the help of the learned Amicus Curiae as well as learned Addl. G.A., I have also been taken to the entire evidence of the prosecution witnesses and documentary evidence produced by the prosecution. After independent appreciation of the evidence, I have no reason to differ with the findings recorded by the trial court. 11. Learned counsel for the Amicus Curiae tried to emphasize that the accused/ appellant had been falsely implicated in this case. He has further pointed out that informant Naubat Singh PW1 has admitted in his evidence that a report was lodged against Naubat Singh by the accused/ appellant and as such there was enmity in between the parties. The learned Addl. G.A. refuted the contention. Perusal of the entire evidence reveals that informant Naubat Singh PW1 has categorically stated in his evidence that there was some dispute over the land and a report was lodged about this fact by the accused/ appellant. The villagers have settled the said dispute 1-1/ 2 months back from the date of the incident by way of compromise. Thus, there was no existing dispute in between the parties. It is also settled position of law that enmity is a double edge weapon. Sometime, it can be used for defence and sometime it can be used for attack. It depends upon the fact and circumstances of each case. If the informant had to implicate the accused/ appellant falsely, he would have very well asserted that he committed the murder of the deceased instead of saying that he tried to assault his wife Saranwati PW2 but in fact it hit the deceased Smt. Bhudhiya. The prosecution evidence is credible and cogent and it cannot be disbelieved on the ground of enmity as alleged by the prosecution. I do not find any force in the contention raised by the learned counsel for the appellant. 12. Learned Amicus Curiae further contended that there are contradictions in between the testimony of the eyewitnesses. He further pointed out certain variations and discrepancies in the evidence. The learned Addl. G.A. refuted the contention and contended that minor discrepancies are bound to occur in the testimony of truthful, natural and reliable evidence. I have gone through the entire evidence and contradictions pointed out by the learned Amicus Curiae for the appellant. Unless the contradictions are of material dimensions, the same should not be used to jettison the evidence in its entirety. It is quite natural that a person narrates the story in his own way and in different words & different ways. The minor discrepancies are bound to creep in the testimony of the natural and reliable witnesses. The minor discrepancies in the evidence are those which are due to normal error of observations, normal error of memory, due to the lapse of time and due to the mental disposition such as, shock & horror of the incident and those are always there, however, honest and truthful a witness may be. It was but natural that certain discrepancies would occur in the testimony of the witnesses. I do not find any force in the contention of the learned counsel for the appellants. 13. In view of the foregoing discussions and on the basis of the aforesaid evidence, I am of view that the prosecution has been able to establish the guilt beyond reasonable doubt against the appellant. I find that the learned trial court has rightly convicted and sentenced the appellant. The judgment and order dated 02.07.2002, passed by learned Sessions Judge, Nainital in Sessions Trial No. 212 of 2000, is hereby confirmed. The appeal is liable to be dismissed and is hereby dismissed. 14. Let the lower court record be sent back to the court concerned for compliance. Dated 5th May, 2008 Shiv ( J.C.S. Raw at , J.)