IN THE HIGH COURT OF UTTARANCHAL, NAINITAL. NO. 10- COURT’S ORDER WHETHER THE CASE IS OR IS NOT APPROVED FOR REPORTING [ Chapter VIII, Rule 32(2) (b)] Criminal Appeal No. 243/2004 Jayanand Nautiyal Appellant. Vs. State Respondent. Decided on 03-04-2006 A.F.R. (Approved for Reporting) Not Approved for Reporting (P.C.Verma, J.) (B.C. Kandpal, J.) Dated: 03-04-2006 In the High Court of Uttaranchal, at Nainital. Criminal Appeal No. 243/2004 Jayanand Nautiyal S/o Rama Nand Nautiyal, R/O Village Virol Patti Latur, District Tehri Garhwal .. Appellant. Vs. State of Uttaranchal .. Respondent. Sri Rajendra Kotiyal, learned counsel for the appellant. Sri D.K. Sharma, learned G.A. for the State. Coram: Hon’ble P.C. Verma, J. Hon’ble B.C. Kandpal, J. Dated: 03-04-2006 This criminal appeal has been preferred by the appellant against the Judgment and order dated 8-1-2001, passed by Sessions Judge, New Tehri in Sessions Trial No. 4 of 1997, convicting the accused/appellant Jayanand U/S 302 I.P.C. and sentencing him to undergo imprisonment for life. 2- Brief facts of the prosecution case are that on 24-10-1996 at about 9.30 p.m. when Nagendra Dutt and his wife Smt. Sushila Devi were sleeping in their house, they came out for urinating and while they were urinating, accused/appellant ( hereinafter called the ‘appellant’) came there and stabbed Nagendra Dutt on his neck by a knife. Upon this Nagendra Dutt and his wife cried. On hearing their cries, Brijendra Dutt, the brother of Nagendra Dutt came out at the chowk of the house and saw Nagendra Dutt bleeding from his injuries and having caught hold of accused Jayanand. Nagendra Dutt told him in the presence of witness Bishambhar Dutt that accused Jayanand had stabbed him with his knife. In the meantime village people assembled on the spot on hearing the cries and the appellant taking advantage of it, succeeded in running away from the spot. In the same night Nagendra Dutt in the injured condition was taken to the hospital at Vikasnagar for treatment. On the next day, i.e. 25-10-1996 at about 4 p.m., Brijendra Dutt lodged the written report, Ext. Ka.3 with the Patwari Birod. On the basis of the written report, the Patwari prepared chick F.I.R., Ext.Ka.6 and registered the case against the appellant a report No. 86 in the General Diary, U/Ss 307, 324 and 506 I.P.C., copy of the G.D. is Ext. Ka. 7. 3- Sri Prem Singh Payal, Patwari Birod started the investigation in the case. He recorded the statement of the complainant and made search for the accused but he could not be traced. Nagendra Dutt died in the hospital on 26-10-1996 during his treatment and the information about his death was sent by reporting Outpost, Harbartpur, P.S. Vikasnagar, District Dehradun vide report Ext.Ka.15 and on the basis of this information the Investigating Officer converted the case U/S 302 I.P.C. He arrested the accused the interrogated him. On 30-10-1996 the Patwari went to the spot and prepared site-plan, Ext. Ka.8 of the place of occurrence on the pointing of complainant. He took into possession the blood-stained and plain earth and pieces of stones from the place of occurrence in the presence of the witnesses and prepared its recovery memo, Ext. Ka. Witness Bishambhar Dutt gave him the blood-stained knife saying that it was the same knife by which the appellant had stabbed the deceased and left on the spot by him. Bishambhar Dutt also gave him the blood- stained clothes of the deceased which were removed from his body while changing his dress for going to the hospital. The Patwari prepared memo Ext. Ka.1 for taking into possession the blood- stained knife and blood-stained clothes of the deceased. 4- S.I., Adal Singh, of Police Chauki Harbartpur, performed inquest on the dead body of the deceased and prepared inquest report, Ext. Ka.5. He prepared challan dead body, Ext. Ka.10, Sketch dead body, Ext. Ka.11, letter to C.M.O., Ext. Ka.12, letter to R.I. Police Line, Dehradun, Ext. Ka.13, specimen of seal, Ext. Ka.14 and sent the dead-body for post mortem. The autopsy on the dead body was conducted by Dr. V.S. Panwar at Corobation Hosptial, Dehradun on 27-10-1996 at 3 p.m. and prepared post mortem report, Ext. Ka.4. the Investigating Officer sent the blood-stained clothes and blood-stained and plain earth for chemical examination. The Chemical Examiner vide his report, Ext. Ka.16 found human blood on these articles. The Investigating Officer on completion of investigation, submitted charge sheet, Ext. Ka.9 against the appellant. 5- After committal of appellant Jayanand to the court of Sessions, the Sessions Judge framed charge U/S 302 I.P.C. to which he pleaded not guilty and claimed his trial. 6- In order to prove its case, the prosecution examined nine witnesses. P.W.1, Bishambhar Dutt, is the eye-witness of the incident. He has stated that in the night when he was going to sleep and came out for urinating, deceased Nagendra Dutt also came out of his house for urinating. Accused Jayanand came there and stabbed the deceased Nagendra on his neck by knife and on the cries of Nagendra he went near him and intervened. He saw bleeding from the injury of the deceased. He further deposed that in the mean time, the accused Jayanand ran away towards his house and thereafter he and Smt. Sushila raised alarm and on hearing the alarm village people came there. Brijendra changed the clothes of the deceased and his blood-stained clothes were taken into possession by this witness. The deceased was taken to Vikasnagar Hospital and was admitted there for treatment who subsequently died during his treatment in the hospital. 7- Brijendra Dutt, P.W.2 is the informant of the case. He is the brother of the deceased. According to this witness, he reached the spot on hearing the cries of deceased Nagendra Dutt and saw bleeding from the injuries of Nagendra Dutt. This witness also deposed that deceased Nagendra Duut told him that Jayanand stabbed him with knife. Thereafter the deceased was taken to Vikasnagar Hospital for treatment and he lodged the report of the occurrence with Patwari Birod on 25.10.1996. This witness has proved the written report, Ext. Ka.3. He also stated that the deceased died on the Hospital on 26-10-1996. 8- P.W.3, Smt. Sushila Devi is the wife of the deceased. She is also an eye-witness of the incident and has supported the prosecution case. According to this witness in the night of occurrence she and her husband came out of the house for urinating and accused Jayanand stabbed her husband with a knife on his neck. She also stated the Bishambhar Dutt also came there and on her raising alarm accused Jayanand threw his knife in the Sagwara (kitchen garden) and ran away. Thereafter village people also assembled there and took her husband to the Hospital for treatment. Her husband later on died in the Hospital. 9- P.W.4, Balak Ram is the witness of earlier occurrence which took place half an hour prior to the main incident. The evidence of this witness is to the effect that he was sitting in his house with accused Jayanand when Brijendra came to his house and on his opening the door, he entered into the house. Then accused Jayanand objected to his coming inside the house and an altercation took place between them and then he turned both of them out of the house and they started quarrelling. This witness intervened and sent Brijendra to his house with one Dinesh and then after half an hour he heard the cries from the chowk of Brijendra and went there. The wife of Nagendra told him that Jayanand stabbed Nagendra with knife. 10- P.W.5, Dr. V.S. Panwar has conducted autopsy on the dead body of the deceased on 27.10.1996 at about 3.30p.m. in the Coronation Hospital, Dehradun. This witness found the following ante-mortem injury on the person of the deceased:- An incised wound 1 ½ cm x 1/3cm x penetrating deep on the front of neck, 2cm above from inner-ward of clavicle left. Direction of the wound was above downwards and inward from right to left. On opening the wound severe clotted blood was preset all over the neck. The internal and external artery in the neck from heart was cut. The doctor opined that the death of the deceased was caused due to shock and haemorrahge and the duration of death was about one day. Post mortem report, Ext. Ka.4 was proved by this witness. 11- P.W. 6, Sohan Lal has stated that his house is adjoining to the house of Brijendra Dutt and when he heard the cries from there, he went there, many people had assembled there and Bishambhar Dutt had told him that Jayanand stabbed Nagendra on his neck by knife. He also stated that he accompanied the injured Nagendra to Vikasnagar Hospital and from there he took Nagendra to Lencon Hospital where he died on 26-10-1996 during treatment. This witness is also witness of inquest and proved his signatures on the inquest report. 12- P.W.7, Bhagat Ram has deposed that when he was sleeping in his house, he woke up on hearing the cries and went to the house of Brijendra Dutt where Bishambhar Dutt told that Jayanand had stabbed Nagendra on his neck by a knife and he also saw Nagendra bleeding from his neck injury. 13- P.W.8 Indra Dev also stated that on hearing cries from the house of Brijendra he went at the spot and saw that Nagendra was lying injured at his chowk and Brijendra was having caught hold of Jayanand and when Jayanand ran away, Brijendra chased him. This witness deposed that he also accompanied deceased Nagendra to Vikasnagar Hospital and from there he took the deceased to Lencon Hospital and thereafter he came to know that the deceased had died in the Hospital. 14- P.W.9, Prem Singh Payal, Patwari is the Investigating Officer of the case. He has narrated the steps taken by him during investigation and proved the prosecution papers prepared by him during the investigation. 15- The accused in his statement U/S 313 Cr.P.C. denied the prosecution allegations and stated that he has been falsely implicated due to enmity. He also stated that his father had mortgaged his Gaushala with the father of the deceased and he wanted to get it released due to which he was falsely implicated. He also stated that the deceased received injuries by fall from a tree and died due to said injuries. However, no documentary or oral evidence was adduced in defence. 16- The Sessions Judge after making assessment of the evidence on record and having heard counsel for the parties, found the accused/appellant guilty for the charge U/S 302 I.P.C. and accordingly convicted and sentenced him to imprisonment for life. 17- Feeling aggrieved, the appellant has came up in appeal. 18- We have heard the learned counsel for the appellant, learned G.A. and perused the evidence on record. 19- Learned counsel for the appellant first of all argued that the First Information Report in this case is quite belated, therefore, this possibility cannot be ignored that the complainant had sufficient time to concoct a cock bull story against the appellant. 20- The evidence on record show that the F.I.R. is Ext. Ka.3 and the appellant is named as assailant in it. The report was lodged on the next day of the occurrence, i.e., on 25-10-1996 at 4 P.M. The occurrence is alleged to have taken place in this case on 24-10-1996 at 9.30 P.M. in the courtyard of the house of the deceased in village Birod. The First Information Report was lodged by Brijendra Dutt, P.W.2, who is the real brother of deceased Nagendra Dutt. The evidence reveal that the injured Nagendra Dutt was seriously injured during the course of the occurrence therefore it was necessary to take him to the Hospital for his treatment in order to save his life first. Therefore, the complainant, who is the brother of the deceased, firstly took him to Hospital at Vikas Nagar and from there he was taken to another Hospital in view of the seriousness of the injury sustained by the injured. After getting the injured admitted in the Hospital and coming back to his village on next day, the complainant lodged the report immediately with the Patwari. It is clear from the evidence of Brijendra Dutt that injured Nagendra Dutt expired in the Hospital at Dehradun on 26-10-1996. Therefore, keeping in view the aforesaid circumstances, we are of the view that the delay in lodging the First Information Report, has properly been explained. The delay therefore cannot be said to be fatal to the prosecution case and from any stretch of circumstance it cannot be observed that the complainant had sufficient time to concoct a cock bull story against the appellant. 21- Learned counsel for the appellant has further argued that the prosecution has not properly explained the motive available to the appellant and whatsoever the motive has been alleged by the prosecution, the same is very weak and does not give any occasion to commit the crime of murder. 22- We do not find any force in this argument. The First Information Report itself reveals that there was an enmity between the accused and the family of the complainant and on the day of occurrence also half an hour prior to the occurrence a quarrel had taken place between the complainant and the accused and immediately thereafter this incident had occurred. Balak Ram P.W.4 has deposed in his evidence that a quarrel had taken place in his house, half an hour prior to the alleged occurrence. P.W.1 Bishambhar Dutt who is an eye witness of the occurrence has also stated in his deposition before the court that there was an enmity between Nagendra Dutt deceased and Jayanand appellant. P.W.2, Brijendra Dutt, who is the complainant of this case has also stated that the appellant Jayanand was having enmity with the family of the complainant and there was an exchange of hot words half an hour prior to this occurrence between the complainant and the accused/appellant Jayanand. P.W.3 Sushila is the wife of the deceased and she has also stated that her family had taken a dilapidated building (Khandhar) from Jayanand on which a hut was constructed. The appellant wanted to get that hut released from the deceased and on account of the possession of that ‘Khandhar’ there was an enmity between the accused/appellant and the complainant family. There had been an altercation between the appellant and the complainant family in this regard so many times earlier to this occurrence. P.W.1, Bisambhar Dutt has also deposed in his evidence that the appellant Jayanand used to ask the deceased Ngendra Dutt to vacate the ‘Khandhar’ and the deceased used to reply him to repay the money and take back the possession of ‘Khandhar’. P.W.8, Indra Dev is the Pradhan of the village and he has also deposed in his statement that the father of appellant Jayanand had sold his Gaushala ( the same Khandhar) to the father of Nagendra Dutt (deceased) due to which there was an enmity between the complainant family and the appellant Jayanand. Therefore, it is quite clear from the evidence on record that the appellant had an enmity with the complainant and the deceased family and on account of the same there was a quarrel half an hour prior to the said occurrence and immediately thereafter this incident had taken place. 23- Learned counsel for the appellant further argued that the eye witnesses account in this case is not trustworthy and does not find any corroboration with the medical evidence. 24- In order to assess the credibility of this argument, we will have to again to through the entire evidence on record and the evidence on record show that there are three eye witnesses produced by the prosecution. Those witnesses are P.W.1 Bisambhar Dutt, P.W.2 Brijendra Dutt and P.W.3 Smt. Sushila Devi. Bisambhar Dutt P.W.1 has deposed in his evidence that the alleged occurrence took place when he came out of his house for urinating. This witness is resident of the same village and his house is situated adjoining to the house of the deceased. The deposition of this witness shows that it was the time to go to bed and therefore it was quite natural to come out of the house to urinate. This witness has clearly stated that he saw the appellant Jayanand coming and all of a sudden stabbing deceased Nagendra Dutt on his neck by the knife. This witness also deposed that when he reached near Nagendra Dutt on hearing his cries, he saw the Nagendra Dutt deceased was catching hold of Jayanand. He also saw that there was bleeding from the injury of Nagendra Dutt. This witness appears to be quite natural and does not have any enmity with the appellant. This witness has also deposed that the appellant Jayanand is his grand-son (Natee) by village relationship. The another important aspect which is establishing the presence of this witness at the place of the crime is that the shirt, which this witness was wearing at the time of the occurrence, also had blood-stains in attempt to separate the accused/appellant and the injured. This witness handed over his shirt to Patwari when he came in the village for investigation. This witness has also deposed that the blood-stained clothes of the deceased, which he was wearing at the time of the incident, were changed before taking him to Hospital and these clothes were also taken by the Patwari. This witness has further deposed that the accused/appellant Jayanand had thrown the knife in Sagwara (kitchen garden) after causing the injury to the deceased and this witness had taken that knife in his possession and handed over the same to the Patwari. The deposition of this witness finds support with the evidence of Prem Singh Payal, P.W.9 who is the Patwari and Investigating Officer of this case and who has stated that on 30-10-1996 when he visited the place of occurrence then Bisambhar Dutt handed over him the blood-stained knife and blood-stained clothes of the deceased. These articles were produced by the prosecution during the course of the trial and were prove by the complainant Brijendra Dutt, P.W.2. 25- Another witness Brijendra Dutt, P.W.2 has also deposed in his statement that when he came out, appellant Jayanand had already run away and he found Nagendra Dutt deceased, Bisambhar Dutt and Sushila Devi at the spot. This witness has deposed that he saw bleeding from the injury of deceased Nagendra Dutt and it was disclosed by Nagendra to him that Jayanand had stabbed him with knife. This witness had reached the place of the occurrence immediately and the victim told him the name of the assailant as Jayanand. P.W.1, Bisambhar Dutt has also deposed that Brijendra Dutt had reached at the spot on raising an alarm by him. We do not find any contradiction in the deposition of this witness which may create a doubt with regard to his veracity. The circumstance, therefore, makes the picture clear that Brijendra Dutt reached at the spot immediately after the alleged occurrence and saw the deceased lying injured and telling him the name of Jayanand as his assailant. This witness has also proved that the shirt and underwear belonged to deceased Nagendra Dutt and Kurta belong to witness Bisambhar Dutt, which were blood-stained and exhibited as material exhibits 1 to 4 respectively. This witness also proved that the Patwari collected the blood-stained earth and plain earth from the place of occurrence and sent the same for chemical examination. The report of the Chemical Examiner is on the record as Ext. Ka.16, which reveals that human blood was found on the aforesaid exhibited articles. 26- The next witness is Smt. Sushila Devi, P.W.3, who is the wife of deceased Nagendra Dutt. Although she has deposed in her evidence that she and her husband had come out for urinating together, but she has further deposed that when Bisambhar Dutt shouted that Nagenera Dutt had been stabbed by Jayanand, then she also ran and her Dewar (Bijendra Dutt) also came out. Bisambhar Dutt P.W.1 has deposed in his cross-examination that after raising an alarm by him, first Smt. Sushila Devi and then Brijendra Dutt came out and then other people also reached there. It therefore appears that Smt. Sushila Devi also came out a little after the incident of stabbing the deceased, but it is also clear that she saw her husband injured and also saw Jayanand throwing the knife in the Sagwara (kitchen garden) while running away from the place of the occurrence. 27- On the basis of the assessment of the evidence adduced by the prosecution, it is quite clear that the ocular version establishes this aspect of the matter that it was the appellant Jayanand and none else, who came in the dark hour of the night at the house of deceased Nagendra Dutt and stabbed him wife a knife. This fact is corroborated by the medical evidence adduced by the prosecution. P.W.1 Bisambhar Dutt has categorically deposed that Jayanand came to the deceased Nagendra Dutt and stabbed on his neck by knife and after committing the crime, Jayanand threw the knife in the Sagwara (kitchen garden). On an examination of the medical evidence, it reveals that Dr. Panwar P.W.5 who conducted the post mortem on the body of the deceased on 27-10-1996 at 3.30 P.M. found an incised wound penetrating deep on the front of neck, 2 cm above from inner-ward of calvicle left. Direction of the wound was above downwards and inner-wards from right to left. On opening this injury, the doctor found that severe clotted blood was present over the neck. The internal and external artery in the neck from heart was cut and the muscle on the left side of neck was also cut. The doctor opined that the death was caused due to shock and haemorrhage and the duration of the death was about one day. In view of the opinion of the doctor with regard to the cause of death, it becomes quite clear that the deceased died as a result of this ante-mortem injury. 28- Learned counsel for the appellant has tried to submit that the nature of the injury was not as such which could have caused the death of deceased. It has been argued that the doctor has nowhere stated during his deposition that the injury was sufficient in the ordinary course of nature to cause death or likely to cause death. Therefore, it cannot be presumed that the injury was sufficient in the ordinary course of nature of cause death. Our attention has been drawn towards this part of statement of the doctor wherein he has deposed that in case if the immediate medical aid would have been given to the deceased, his life could be saved. Hence in view of this deposition of the doctor the case does not fall U/S 302 I.P.C. 29- We again find ourselves unable to accept the contention raised by the learned counsel for the appellant. In this case we think that the injury caused to the deceased was sufficient in the ordinary course of nature to cause death because the injury was caused on the front of the neck by knife and the doctor after opening the wound found severe clotted blood stained all over the neck and the internal and external artery in the neck from the heart was found cut along with muscle of the neck. Therefore, in our view the case certainly falls within the purview of Section 302 I.P.C. and in case if the doctor has not deposed in his statement anything with regard to the nature of injury the same hardly makes any difference. 30- Learned counsel for the defence has also submitted that the deceased in fact died as a result of fall from the tree. Our attention has also been invited to the statement of accused U/S 313 Cr.P.C. but we are unable to