IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No.514 of 2001 (Old No.1124/2000) Raju S/o Shri Dheeraj … Appellant Versus The State … Respondent Dated: September 2, 2011 Hon’ble Servesh Kumar Gupta, J. Case called out. None is present on behalf of the appellant even in the revised call, though Mr. M.A. Khan, Brief Holder for the State is present. This appeal by convict-accused Raju was preferred in the Allahabad High Court challenging the judgment and order dated 3.4.2000 passed by the Sessions Judge, Tehri Garhwal in S.T. No.10 of 1996. In the said judgment, he was convicted for a period of seven years’ R.I. along with fine of Rs.5,000/-. In default of payment of fine, he was ordered to undergo rigorous imprisonment for a period of three months. The incident of this case is of 25.3.1996. Soon after the incident, he was arrested. During trial, he was never granted bail, as appears from the last line of the impugned judgment as well as from the order dated 17.5.2000 passed by the Allahabad High Court. His bail application was moved in the Hon’ble High Court of Allahabad on 17.5.2000 which was never disposed of due to the want of record. After that the appeal was transferred to this Court and no order is available in the order sheet in order to show that he was ever granted bail by this Court. Meaning thereby that this convict Raju remained in jail ever since his arrest in the early 1996. So, he 2 must have completed the entire sentence which was awarded to him by the learned Sessions Judge as well as the period which he was asked to undergo in default of payment of fine. Therefore, the appeal has now been rendered infructuous and is liable to be dismissed as such. Appeal is, accordingly, dismissed as infructuous. Let the lower court record be sent back. (Servesh Kumar Gupta, J.) September 2, 2011 Rajeev Dang 3 RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No.1368 of 2001 (Old No.51/1998) Shamshad & others … Appellants Versus State of Uttarakhand … Respondent Mr. R.V.S. Khokher, Advocate for appellant no.1 Mr. Sandeep Tandon, Advocate for appellants no.2 and 3 Mr. M.A. Khan, Brief Holder for the State/respondent Dated: August 2, 2011 Hon’ble Servesh Kumar Gupta, J. The challenge in this appeal is the judgment and order dated 22.12.1997 rendered by the Additional Sessions Judge, Nainital whereby the appellant/accused persons were convicted for the offence of Section 307 r/w Section 34 of the I.P.C. and sentenced to undergo R.I. for five years each. Feeling aggrieved, the appeal was preferred in the Allahabad High Court numbered as 51/1998, which after carving out of this High Court, was made over to this Court for adjudication. This appeal pertains to S.T. No.222 of 1995 of P.S. Jaspur, then District Nainital, at present District Udham Singh Nagar bearing crime no.250/1994. In short, the facts are that one lady Zahira fell in love with Sri Bhim Singh and entered into the wedlock with her paramour Sri Bhim Singh. So the real brother of the lady Zahira named Shamshad with his uncle Rashid and cousin Pintoo @ Gulfam S/o Rasheed committed this occurrence. On 29.9.1994 at about 12 of the noon, when Shakuntala (converted name after marriage, previous name Zahira) was 4 returning to her house after medical treatment of her kid, no sooner did the couple reach at Tiraha near Pulia of village Sanyasionwala, the accused persons armed with countrymade pistol and sickle, rushed to assail Sri Bhim Singh as well as wife Shakuntala. A fire was opened pointing out Shri Bhim Singh. In order to save himself, Bhim Singh fell on the ground but the accused did not spare him and begin to beat him brutally. Smt. Shakuntala along with her baby raised the screams. Hearing the noise of the bullet and shout, one Gannu Singh S/o Sri Kallu, whose house was near the place of occurrence, came to their rescue. Seeing Gunnu, the accused persons took to their heels, threatening Sri Bhim Singh that he had saved himself that day and his life will not be spared in future. Sri Bhim Singh sustained severe injuries in his head, hands and feet. With the assistance of villagers, Smt. Shakuntala brought her husband Sri Bhim Singh in a tractor-trolley to the police station and lodged an F.I.R. at 1:30 PM while the police station was about 7 kilometers distant from the place of occurrence. The injured Sri Bhim Singh was got medically examined by the police of Jaspur. The following injuries were found on his body: - 1. “Two big, lacerated wounds on the scalp around 4 cm x 1 cm and 5 cm x 1 cm x bone deep on left parietal area of head which was profusely bleeding surrounding contusions present. 2. Multiple small lacerated wounds 1 cm x 1 cm, 2 cm x 1 cm and 1 cm x 1 cm on left side of occipital area on the scalp which was bleeding profusely and contusions were present. 3. Perfurated type of lacerated in occipital area of head. Multiple bleeding was present. 4. Contusional circumfrancial swelling on right forearm 6 cm paroxenial to the right wrist joint. 5 5. Contusional area on dorsum of the left wrist. 6. Lacerated wound 5 cm x 2 cm on the front of right knee joint. Swelling and bleeding were present.” After investigation, the chargesheet was submitted against the accused Shamshad, Pintoo @ Gulfan and Rashid @ Munna, all R/o village Sanyasionwala within the territorial jurisdiction of Police Station Jaspur for the offence of Sections 307/506 IPC. The charge was levelled by the trial court only for the offence of Section 307/34 IPC and after trial, the appellants have been convicted as aforementioned. So feeling aggrieved this appeal has been preferred by them. I have heard the learned counsel of the appellants and the learned Brief Holder for the State. Having considered the judgment of the trial court as well as the evidence on record, this Court feels that whatever the contentions have been raised by the learned counsel of the appellants, had already been raised by the accused counsels before the trial court and the trial court has elaborately discussed and answered in a very logical and cogent manner all those contentions in its judgment which is substantiated by the evidence available on record. All injuries were found to have been caused by blunt hard object and sharp edged weapon and they were fresh at the time of medical examination which was soon done by the doctor on 29.9.1994 after lodging of the report at 2:30 PM. Since Smt. Shakuntala (previous named Zahira) has wedded against the wishes of her family members and that too out of the religion with Sri Bhim Singh, so obviously motive to be in vengeance was existing every time in the thinking of the accused persons and at the relevant time of occurrence, Shamshad while exhorting his co- 6 accused, said the words threatening Bhim Singh that {Isne Hamari Izzat Mitti Mein Mila Di Hai}. The contention of learned counsel of the appellants that these words are missing in the FIR, is not acceptable because it is the settled position of law that FIR is not the embodiment of each and every minute details and sequence of the occurrence. It is only the sum and substance what has happened at the time of incident. Before appreciating further, it would be relevant to recall the renowned precedent of Hon’ble Apex Court stating in the case of “Himachal Pradesh Vs. Lekhpal and another reported in 1999(3) A.C.R.R. Page 2754” where the Hon’ble Apex Court observed that the criminal trial cannot be equated with a mock scene from a stunt film. The legal trial is conducted to ascertain the guilt or innocence of the accused arraigned. In arriving at a conclusion about the truth, the Courts are required to adopt a rational approach and judge the evidence by its intrinsic worth and the animus of the witnesses. The hypertechnicalities or figment or imagination should not be allowed to divest the court of its responsibility of sifting and weighing the evidence to arrive at the conclusion regarding the existence or otherwise of a particular circumstance keeping in view of the particular facts of each case, the social position of the victim and the accused, the larger interests of the society particularly the law and order problem and degrading values of life inherent in the prevalent system. The realities of life have to be kept in mind while appreciating the evidence or arriving at the truth. The courts are not obliged to make efforts either to give latitude to the prosecution or loosely construe the law in favour of the accused. The traditional dogmatic hypertechnical approach has to be replaced by rational, realistic and genuine approach for administering justice in a criminal trial. Criminal jurisprudence cannot be considered to be a utopian thought 7 but have to be considered as part and parcel of the human civilization and the realities of life. The courts cannot ignore the erosion in values of life which are a common feature of the present system. Such erosions cannot be given a bonus in favour of those who are guilty of polluting society and mankind. Besides motive, there is a direct evidence not only of the injured Sri Bhim Singh as PW2 but also of the real sister of accused Sri Shamshad, named Smt. Shakuntala as PW1 against all accused persons. All accused persons are the near relatives of Smt. Shakuntala. There is no reason for Smt. Shakuntala to depose against them, while on the other hand, there is a clear-cut motive in the mind of Shamshad and his uncle and nephew to be revengeful from Sri Bhim Singh. PW1 Smt. Shakuntala has deposed that Shamshad exhorted the fellow accused to kill Bhim Singh. At this exhortation, Pintu opened the fire upon Bhim Singh. Bhim Singh, in order to save him from being hit by the bullet, fell on the ground and tried to escape from the clutches of the accused persons but he was caught. The fire was again opened and third time when the fire was opened, it was missed. So all accused persons began to belabour him with fists, kicks, butts and barrels of the countrymade pistol as well as from the reverse side of sickle. The next contention of the learned counsel that had all the accused persons have the intention to kill him, then they would have assailed Bhim Singh from the sharp edged side of scythe, is not acceptable because by the time they could have used the sickle dangerously the witnesses and Sri Gannu Singh had come on the spot. So, the accused were not in a position to accomplish their task of killing Bhim Singh. Initially, though they opened two fires but Shri Bhim Singh fell 8 down on the earth and could save himself, even by running for one or two minutes. The entire sequence of the occurrence, though dreaded one, could not be in such a manner as to take away the life of Shri Bhim Singh but the way all the accused persons assailed him, disclosed their intention to kill him. The live cartridges have also been recovered by the I.O. from the spot. The next contention of learned counsel for the appellant that Shamshad’s role only was of exhortation because had he have the intention to kill Bhim Singh he would have opened the fire himself, is not acceptable because it cannot be inferred every time that Shamshad should have opened the fire himself at the first instance. It is not necessary in the sequence of events, as has been stated by Smt. Shakuntala and Bhim Singh in their statements. Even the PW2 Bhim Singh corroborating the evidence of Smt. Shakuntala, has proved the incident as has taken place on 29.9.1994 at 12 noon on the Tiraha near the village Sanyasionwala. He has proved the sequence of the events corroborating it in the same manner, as has been deposed by PW1 Shakuntala. He has proved that he fell in love with the real sister of Shamshad and this was the cause of enmity which the accused persons were nurturing against them. Bhim Singh has proved that as he was coming with his wife and little baby in the lap of Smt. Shakuntala, the accused Shamshad stopped them and uttered “Ruk Saale Aaj Tujhe Hum Jinda Nahi Chhodte Hain, Ki Tumne Hamein Gaon Mein Munh Dikhane Layak Nahi Chhoda, Hamari Izzat Mitti Mein Mila Di Hai”. Saying these words, he exhorted Pintoo to kill him and Pintoo opened the fire but due to felling down on the earth, he escaped the fire. He also ran 50-60 paces to save himself from the accused persons but all the three chased him 9 and while doing so, Shamshad also opened the fire. This time also, the bullet did not hit him. Then the accused persons caught him by that time and began to belabour him by butt of pistol and sickle as well as from barrel of Tamancha. Third time fire was also opened but fortunately the same was missed. On hearing the noise, Gannu Singh came at the spot. These statements of PW1 Smt. Shakuntala and PW2 Bhim Singh have been corroborated by PW3 Gannu Singh substantially and nothing has come out in the cross- examination to disbelieve his statement. It has further been contended by learned counsel of the appellants that Bhim Singh is the close relative, so his evidence is not trustworthy. This contention is also not acceptable because there is no such law that the evidence of a near relative should not be accepted. Rather, it is the established law that the evidence of a near relative, although should be seen cautiously, but can well be considered in the days when no independent witness comes forward inviting enmity from the accused persons. Learned counsel of the appellants has drawn the attention of this Court towards the minor contradictions and discrepancies regarding the distance of houses of Shri Bhim Singh, accused persons and Smt. Shakuntala from the place of occurrence. This discrepancy is not germane because the place of occurrence is definite. There is no contradiction upon that. Besides, it has been observed time and again by the Apex Court and in a catena of various precedents of the other High Courts that there is no criminal trial which is free from minor discrepancies or contradictions. Rather, these inconsistencies or discrepancies are indicative of truthfulness of the witnesses and shows that the witnesses are not tutored. More so, when an illiterate and rustic woman like Smt. 10 Shakuntala is facing a grueling cross-examination in the witness box at the hands of a senior counsel. Even there is no discrepancy in the ocular as well as medical evidence produced on behalf of the prosecution. In view of the above, I think that the learned trial court has very well analyzed and appreciated the evidence on record and there is no scope of interference in the questioned verdict. The appeal thus bereft of merits and liable to be dismissed. It is accordingly dismissed. (Servesh Kumar Gupta, J.) August 2, 2011 Rajeev Dang