Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 108 of 2005 N arayan Singh and others ...…………. Appellants Versus State of Uttarakhand ...…………. Respondent Mr. A.S. Gill, Advocate, for the appellants. Mr. Amit Bhatt, Addl. Govt. Advocate for the State. Mr. Jitendra Chaudhary, Advocate for the complainant. Along with Criminal Appeal No. 110 of 2005 Ja gtar Singh ...…………. Appellant Versus State of Uttarakhand ...…………. Respondent Mr. A.S. Gill, Advocate, for the appellant. Mr. Amit Bhatt, Addl. Govt. Advocate for the State. Mr. Jitendra Chaudhary, Advocate for the complainant. JUDGMENT Coram : Hon’ble Barin Ghosh, C. J. Hon’ble U.C. Dhyani, J. Per: U.C. Dhyani, J. These two appeal, preferred under Section 374 of the Code of Criminal Procedure, 1973 (for short 2 Cr.P.C.), are directed against the common judgment and order dated 19.05.2005, passed by Addl. Sessions Judge, Udham Singh Nagar, in S.T. No. 31 of 2004, whereby appellants Narayan, Kamal and Jagtar Singh have been convicted under Section 302 and 376 of the Indian Penal Code, 1860 (for short I.P.C.). All of them have been sentenced to undergo imprisonment for life and directed to pay fine of ` 5,000/- under Section 302 of I.P.C., and rigorous imprisonment for a period of seven years under Section 376 of I.P.C. 2. Prosecution story, in brief, is that on 28.09.2003, Kundan Singh (informant) lodged a first information report (Ext. Ka-1) with police station Bajpur stating therein that his sister-in-law Smt. Lilawanti, resident of police station Afzalgarh, District Bijnore had informed him over telephone two days prior to the date of incident that she will be arriving to his village by a train which reaches there at 12 O’ clock, and she requested him to receive her at Baria Daulat Railway Station. The informant (Kundan Singh) got late on that day and by that time her sister-in-law took a shortcut in order to reach his village. He along with one Subhash Chand took another route. At about 01:00 P.M., while they were walking alongside the railway line to reach the railway station, they heard shrieks coming from a culvert, on which when they rushed in that direction they saw that Narayan (accused / appellant) along with his two associates were 3 strangulating his sister-in-law with her dupatta. On being challenged by the informant, the three took out country made pistols, and succeeded in fleeing away. When they approached towards Lilawanti they found her undressed below her waist and she was lying dead over the culvert. The wife of the informant and other people also assembled there by that time. On the basis of the written report given by Kundan Singh (P.W. 1), Crime No. 569 of 2003 was registered against Narayan and his two associates, relating to offence punishable under Section 302 of I.P.C. at police station Bajpur. P.W. 6 Sub Inspector Moinuddin took over the investigation and arrested accused Narayan on 29.09.2003. Later, on disclosure of accused Narayan, his two associates Kamal and Jagtar Singh were also arrested. After taking the dead body in their possession, police prepared inquest report (Ext. Ka –9) and other necessary papers, and the dead body was sent in a sealed cover to Chief Medical Officer, Kashipur for postmortem examination. The postmortem examination was conducted by Dr. Madan Mohan (P.W. 3) on 29.09.2003, at 08.20 A.M., who prepared autopsy report (Ext. Ka –5) on the very day i.e. 29.09.2003. The Medical Officer found two contusions and one abrasion on the body of the deceased and opined that the deceased had died of asphyxia due to strangulation. After interrogating the witnesses, and on completion of investigation, the Investigating Officer Inspector D.C. Dhondiyal (not examined) submitted charge sheet (Ext. 4 Ka –15) against the three accused Narayan, Kamal and Jagtar Singh, for their trial in respect of offences punishable under Section 302 and 376 of I.P.C. 3. The Magistrate, on receipt of the charge sheet, after giving necessary copies to the accused, as required under Section 207 of Cr.P.C., committed the case to the court of sessions for trial. Learned Addl. Sessions Judge, Udham Singh Nagar on 15.03.2004, after hearing the parties, framed charges for the offences punishable under Section 302 and 376 of I.P.C. against all the three accused. They pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1 Kundan Singh (informant); P.W. 2 Mahendra Singh; P.W. 3 Dr. Madan Mohan (who conducted the postmortem examination); P.W. 4 Dr. Anil Chandra Sah (Pathologist); P.W. 5 Constable Rishipal Singh and P.W. 6 Sub Inspector Moinuddin (Arresting Officer). The oral and documentary evidence was put to the accused under Section 313 of Cr.P.C., in reply to which they alleged the prosecution story to be false. No evidence in defence was adduced on behalf of the accused / appellants. After hearing the parties, the trial court believed the testimony of the eyewitnesses and found that all the three accused were guilty of charges of offences punishable under Section 302 and 376 of I.P.C. After hearing on sentence, all the three accused were sentenced to undergo imprisonment for life and directed to pay fine of ` 5,000/- under Section 302 of 5 I.P.C., and rigorous imprisonment for a period of seven years under Section 376 of I.P.C. Aggrieved by said judgment and order dated 19.05.2005, the convicts preferred these two appeals. 4. We have heard learned counsel for the appellants, learned Additional Government Advocate for the State and learned counsel for the complainant and perused the entire record. 5. Learned trial court / Addl. Sessions Judge (II F.T.C.), Udham Singh Nagar, in his well discussed judgment dated 19.05.2005 has explained each and every aspect of the prosecution story. Learned trial court has mentioned the ingredients of the offences contained in the F.I.R., including the facts that Narayan Singh and two of his associates were strangulating the victim with dupatta, when the informant and his friend tried to apprehend the accused, they took out country made pistol and fled away. Learned Addl. Sessions Judge has discussed the evidence of P.W.1 Kundan Singh, who met Subhash alias Badhshah, near river Chagsa, and saw accused Narayan Singh strangulating Lilawanti with her dupatta. Accused Kamal had caught hold of her legs. Accused Kamal was having a country made pistol. Accused Jagtar Singh had caught hold of Lilawanti’s hands. Learned trial court has also discussed the evidence of P.W.2 Mahendra Singh who has supported the prosecution story. Learned trial court has held that rape was committed on Lilawanti and 6 thereafter, she was strangulated to death. The court below has mentioned the statement of P.W.3 Dr. Madan Mohan, Medical Officer, who prepared the autopsy report (Ext. Ka-5) and opined that death of Lilawanti is possible on 28.09.2003, at 01:00 P.M., due to strangulation. He also opined that she died because of asphyxia. Sometimes, there are no direct signs of rape on a woman, aged 50 years. P.W.6 Sub Inspector Moinuddin had arrested accused Narayan Singh on 29.09.2003, and co- accused Jagtar Singh and Kamal were arrested on disclosure made by Narayan Singh. The accused persons were arrested on the following night. No evidence was adduced on behalf of accused persons in defence. Learned Addl. Sessions Judge has found that the prosecution has been able to prove its story beyond reasonable doubt. The court below has accepted the oral testimony of P.W.1 Kundan Singh and P.W.2 Mahendra Singh in its entirety. Learned trial court has given a categorical finding of the fact that the accused persons have caused the death of Lilawanti by strangulating her after committing rape on her. The reason was that there was presence of semen on the underwear of the accused persons and on the kurta, salwar and dupatta of the deceased. The facts speak for themselves (Res ipsa loquitor). Since the accused persons were arrested on the following night and therefore, they could not change their clothes. Learned trial court has also found that even if the name of witness Mahendra Singh is not mentioned in the F.I.R., it is not a fact to reckon with. Likewise, if the 7 name of Subhash is mentioned in the F.I.R., and he has not been examined, the prosecution story cannot be discarded on this count. The trial court has also brushed aside the contention of the accused persons that the test identification of accused Kamal and Jagtar Singh was necessary. Presence of Mahendra Singh on the spot is highly probable because his field is near the place of occurrence, according to learned trial Judge. If the Investigating Officer has not shown the place in the site plan from were P.W.2 Mahendra Singh witnessed the occurrence, this fact is hardly going to affect the prosecution story. F.I.R. was lodged after one hour, whereas the police station is about 10 Kms. away from the place of occurrence. There is no delay in lodging the F.I.R. There is no reason to suggest false implication of the accused in the present case. There is no suggestion even to indicate the motive for falsely implicating the accused persons. 6. According to F.I.R., the sister-in-law of the informant had telephonic talk with the latter that the former is arriving at Baria Daulat railway station on 28.09.2003. The informant Kundan Singh was requested to receive his sister-in-law. Informant was going to Baria Daulat railway station to receive his sister-in-law, but got late. In the meantime, his sister-in-law walked down on foot adopting a shortcut to his village from the railway station. When he reached little ahead of river Chaksa, he met one Subhash Chand. When both the persons were 8 approaching Baria Daulat railway station they heard the cries near a culvert around 01:00 P.M. On reaching the culvert, they found that accused / appellant Narayan Singh, and two of his friends were strangulating Lilawanti with her dupatta. They were pressing her neck with the help of this cloth. They chased the accused and tried to apprehend the culprits, but in vain. They had seen the friends of Narayan Singh. When they came back to the spot, they found Lilawanti dead. Her travelling bag was found near culvert, and her salwar (a lower wear used by ladies with kurta) was taken off from her body. 7. When the informant came into the witness box as P.W.1, he has supported the prosecution story. It appeared to him that Lilawanti was murdered after rape was committed on her. Nothing material has come in his cross-examination so as to help the accused. Learned counsel for the accused / appellants has pointed out that the distance between P.W.1 Kundan’s residence and railway station is about 2½ - 3 Km. The bus and tempo are plied on this pucca road. This witness had a motorcycle, but on the fateful day it was being taken by his son. When they reached on the spot Lilawanti was already dead. The names of the co-accused were disclosed by Narayan. P.W. 2 Mahendra Singh had also come on the spot, who was working in a field situated at 100 yards away from the place of occurrence. 9 8. P.W.2 Mahendra Singh who was working on his field near the place of occurrence on the fateful day has supported the evidence of the informant (P.W.1 Kundan Singh). In his cross-examination he has stated that the distance between Kundan’s house and the railway station is 2 Kms. They had seen the accused fleeing away from the spot from a distance of 100 steps. He has heard the shrieks of Lilawanti. He had not seen the deceased and the accused / appellants before hue and cry was raised. He knew Narayan Singh before this incident took place. The detailed cross-examination of P.W.2 Mahendra Singh was also read over by learned counsel for the appellants in the open court, but nothing material has come out in favour of the appellants. 9. P.W.3 Dr. Madan Mohan found the following ante mortem injuries on the body of Lilawanti: i) Contusion 4 cm X 1 cm along over border of middle 1/3rd of mandible at neck, left side. On cutting underneath haemotoma present. ii) Contusion faint 10 cm X 6 cm over anterior surface of neck below Adam’s apple. On cutting underneath there was a massive haemotoma. iii) Abrasion on right leg upper 1/3rd , 2 cm X 1 cm. The Medical Officer has suggested that the vaginal swab was taken for examination to ascertain the presence of spermatozoa. In the opinion of the Medical Officer the death of Lilawanti was caused by 10 strangulation. Injury No. (ii) sustained by the deceased may be caused by pressing dupatta around her neck. The cause of death as opined by P.W.3 Dr. Madan Mohan, was asphyxia due to strangulation, which is possible on 28.09.2003, at 01:00 P.M. No definite opinion about rape could be given. In his cross-examination P.W. 3 Dr. Madan Mohan stated that the spermatozoa was not found in the test report of vaginal swab and no opinion about rape could be given. 10. P.W.4 Dr. Anil Chandra Sah, pathologist, has also confirmed the opinion of P.W. 3 Dr. Madan Mohan that spermatozoa were not present in the vaginal swab of Lilawanti. 11. P.W.5 Constable Rishipal Singh has proved the copy of General Diary (Ext. Ka –7) and Chik report (Ext. Ka –8). 12. P.W.6 Sub Inspector Moinuddin is the Investigating Officer who has proved certain documents. In his cross-examination this witness has stated that the railway station is situated at a distance of 4 Kms. from the place of occurrence. 13. In their statement under Section 313 of Cr.P.C. the accused have denied the allegations levelled against them. 11 14. Learned counsel for the appellants has submitted that since spermatozoa were not present in the vaginal swab of the deceased so the offence punishable under Section 376 of I.P.C. was not established. There is no direct evidence of rape. 15. Postmortem report has also not confirmed the factum of rape. If there is evidence that the lady was found naked, that itself will not support the charge of rape. 16. We quite appreciate that the ingredients of offence punishable under Section 376 of I.P.C. are not made out as against the appellants. 17. At the very outset it may be conceded that the ingredients of the offence of rape punishable under Section 376 of I.P.C., are not made out. 18. But the next question arises as to how the appellants can get away with Section 302 of I.P.C., which otherwise appears to have been proved? 19. Learned counsel for the appellants has argued that motive has not been ascribed. There is no premeditation, no motive on the part of the appellants to commit a crime. 12 20. Informant is resident of village Banskheri. The evidence of informant is corroborated with the evidence of other disinterested witness. The informant allegedly proceeded to receive this lady. The accused are allegedly involved in the action of committing crime of murder. 21. So far as the discrepancy of one kilometer, two kilometers and four kilometers, as pointed out by learned counsel for the appellants in the testimony of the eyewitnesses is concerned, the same is not going to benefit the appellants. These are natural variations which are bound to occur when the witnesses narrate any story. We are not accepting the contention of learned counsel for the appellants that these variations affect the prosecution story materially. 22. Learned Prosecutor was very candid in his approach when he argues that the inconsistency of 3 Km., 4 Km. in the testimony of the witnesses is not cutting any ice to the appellants. Some mistake here and there is not going to do any benefit to the appellants. 23. Learned counsel for the appellants argued that when the informant was already late why did he not use the vehicular traffic? Learned counsel for the appellants also argued that Subhash Chand has not come to depose before the court, although he was examined under Section 161 of Cr.P.C. 13 24. The F.I.R. (Ext. Ka –1) is lodged by the chaser of the criminals. He alongwith another wanted to apprehend the accused. Both of the witnesses heard the cry of the lady, and went there. P.W.2 Mahendra Singh is a local witness. The informant and his friend chased them, but the accused fled away. This evidence is being corroborated by a local resident. The question is how do the accused / appellants get out of it? 25. Learned counsel for the accused / appellants has also submitted that Investigating Officer had not indicated in the site plan where Mahendra Singh is working. Mahendra Singh’s evidence too was recorded after 8-9 days. He is closely related with the informant. He has stated that Kundan Singh is his maternal uncle. Although, it is stated in the F.I.R. that the crime was committed by three persons, but only one is named in the F.I.R. Two accused are not named in the F.I.R. 26. P.W. 2 Mahendra Singh has stated before the court that he was present there. The defence was supposed to make inroads into the prosecution evidence, but they have not been able to do so. Instead, prosecution has been able to prove its case beyond reasonable doubt. Mahendra Singh cannot be said to be an interested witness simply on the ground that he calls Kundan Singh ‘mama’ (maternal uncle). This trustworthy testimony cannot be brushed aside only on this score. 14 27. The evidence of P.W.1, P.W.2 and P.W.3 and the cross examination of these witnesses was read over by learned counsel for the appellants in the open court, but unfortunately the appellants have not been able to get anything in the cross examination. 28. It is a settled proposition of law that the number of witnesses is not material. It is the quality and not the quantity of evidence which matters. Conviction on the strength of the testimony of the sole witness can be sustained, what is relevant is whether the court will believe or will not believe. In this case there is nothing in the prosecution story which is to be disbelieved sans the fact that offence punishable under Section 376 of I.P.C. is not proved against the appellants. The testimony of the informant has been duly supported by a totally disinterested witness. The arguments put forth by learned counsel for the appellants are absolutely being worth summarily rejected. 29. P.W. 2 Mahendra Singh has corroborated the evidence of the complainant who was present on the date, time and place of occurrence. Learned counsel for the appellants brought certain inconsistencies here and there in the testimony of the witnesses, but he is not going to gain anything out of it. Everybody is not supposed to behave in the same way. It is the perception of a man which matters. How people react in different situations that matters. Life is stranger than fiction. 15 30. What was the necessity of raising an accusing finger at the appellants that they have committed the murder? There are thousands of villagers. The informant could have implicated anybody, why only the appellants? 31. To recapitulate the role assigned to the accused persons in the FIR, accused Narayan Singh and two of his associates were strangulating Lilawanti with the help of dupatta. The informant Kundan Singh and Subhash Chand chased and tried to apprehend the accused persons, but failed. They have seen the co-accused properly and they (co-accused) can be identified by them. Accused Narayan Singh was arrested by the police on 29.09.2003, at 01:00 A.M., at village Madanapur, falling within the jurisdiction of police station Dineshpur. Arrest memo (Ext. Ka-2) bears the signature of accused Narayan Singh. 32. To proceed further on disclosure of accused Narayan, co-accused Jagtar Singh and Kamal were arrested by the police on 29.09.2003, at 03:00 A.M., at village Chandanpura. Arresting memo (Ext. Ka-3) of these co-accused bears their signatures. Informant P.W.1 Kundan Singh has also proved this fact. Copy of General Diary of institution of case has been proved as Ext. Ka-7. 33. To recapitulate the evidence adduced thereon, when P.W.1 Kundan Singh entered into the witness box, he has 16 stated on oath that Narayan Singh was strangulating Lilawanti with the help of black chunni, accused Kamal caught hold of Lilawanti’s legs, and accused Jagtar Singh caught hold of her hands. P.W.2 Mahendra Singh also appeared on the spot and he had also seen the accused persons fleeing away from the scene. In his cross- examination, this witness (P.W.1 Kunadan Singh) has stated that P.W. 2 Mahendra was working in a field which was 100 yards away from the culvert. At page 3, the informant has specifically stated in his cross- examination that he along with Mahendra and Subhash knew the accused persons from before (this incident took place). He has explained in the cross-examination that the names of the other two accused were not known to them, and were disclosed by Narayan (later on). The informant P.W.1 Kundan Singh has denied the suggestion that he himself, Mahendra and Subhash were not present at the time of occurrence. He knew the accused persons and their places of residence before this incident took place. 34. Likewise, when P.W.2 Mahendra Singh entered into the witness box, he has stated on oath that Subhash and Kundan were chasing Narayan, Kamal and Jagtar. He has also recognized the accused persons who were fleeing away from the scene of occurrence. In his cross- examination, he has stated that he saw the accused persons fleeing away from a distance of 100 steps. He did not go to the police station with Kundan. He was 17 working (in a field) 100 steps away from the place of occurrence. He heard the cries only at the place of occurrence and saw the accused persons only after that. In his cross-examination he has said that he knew Narayan, and not others, before this incident took place. 35. Needless to say that the ocular testimony of these two disinterested witnesses lends credence to the prosecution story. Even if it be conceded for the sake of arguments that the name of P.W.2 Mahendra Singh is not mentioned as witness in the FIR, and he did not know the co-accused (other than accused Narayan) before this incident took place, it goes without saying that the conviction can sustain even on the testimony of a single witness, if it is worth credence. The oral testimony of P.W.1 Kundan Singh, much less P.W.2 Mahendra Singh, provides the circumstances in vivid detail under which this heinous crime took place. No suspicion, the suspicion of a common reasonable man, is cast on the oral testimony of these two witnesses. If Subhash Chandra’s name was mentioned in the FIR as a witness and he has not been arraigned by the prosecution in the list of witnesses, that hardly affects the prosecution story adversely. It is not a case in which the test identification parade of the other two co-accused was necessary. To sum up, prosecution has been able to prove its case against the three accused beyond reasonable doubt. 18 36. The last submission advanced on behalf of the appellants was that it is not a case under Section 302 of I.P.C., but falls within the ambit of Section 304 of I.P.C. Learned counsel for the appellants submitted that in case his other submissions were not accepted the matter would, nevertheless fall within the definition of Exception 1 to Section 300 of I.P.C. 37. Unfortunately, for the appellants it is not a case of grave and sudden provocation. It does not fall under Exception 4 to Section 300 I.P.C. either as argued by learned counsel for the appellants, because premeditation is possible only when there is fight. 38. Learned counsel for the appellants has placed reliance on the ruling of Kumaravel Vs. State by Inspector of Police, (2009) 17 Supreme Court Cases 524, and submitted that there is no intention on the part of the appellants to have killed the