Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 207 of 2002 Banshi Lal Arora & Kala alias Guru Charan Arora ………… Appellants versus State of Uttaranchal …………. Respondent. Mr. Lok Pal Singh, Advocate for the appellants. Mr. Amit Bhatt, Addl. Government Advocate for the State. JUDGMENT Coram : Hon’ble Barin Ghosh, C. J. Hon’ble U.C. Dhyani, J. Per: U.C. Dhyani, J. On an FIR lodged by Jugal Kishore, uncle of the victim, with P.S. Kankhal on 03.10.1995 at 1:45 a.m., the criminal law was set into motion regarding killing of Pawan by the appellants Kala and Banshi Lal. The occurrence was alleged to have taken place on 02.10.1995 2 at 9:00 p.m. and the FIR was lodged in the intervening night of 02.10.1995/03.10.1995. 2. The FIR was lodged to the effect that on 02.10.1995 at 9:00 p.m. Pawan Kumar, Kala, Banshi Lal, Hari Om, Rakesh and Bhura were playing cards (gambling). A scuffle took place between Pawan and Banshi Lal. Kala caught hold of Pawan and exhorted Banshi Lal to kill him. Banshi Lal took out a knife from his pocket and inflicted blows of knife on the chest of Pawan. He fell down on the spot. Jugal Kishore, the informant who happened to be the uncle of Pawan reached the spot, no sooner Rakesh informed him about the same. Pawan was taken to hospital but was declared ‘brought dead’. This incident was seen by Rakesh, Bhura and Hari Om. 3. After investigation, charge sheets were submitted by the Investigating Officer against the appellants. Charges under Section 302/34 IPC were framed against Banshi Lal and Kala, to which they pleaded not guilty and claimed trial. A separate charge under Section 25 Arms Act was also framed against Banshi Lal. He pleaded not guilty to this charge also and claimed trial. 4. As many as 10 prosecution witnesses were produced on behalf of the prosecution. A reference of testimony of these witnesses will be given in the following paragraphs. Since P.W.3 Hari Om is the most important witness, inasmuch as he was present there as also playing cards and therefore, his evidence will be dealt with in the last. 3 5. Learned Trial Court convicted accused / appellants Banshi Lal and Kala for the offence punishable under Section 302/34 IPC. Both were awarded imprisonment for life and a fine of Rs.1500/- each, in default of which they were directed to undergo three months further rigorous imprisonment. Appellant Banshi Lal has also been convicted under Section 25/4 Arms Act and has been sentenced to undergo rigorous imprisonment for one year. Both the sentences were directed to run concurrently. 6. Aggrieved against this order, both the accused / appellants have preferred this criminal appeal. 7. P.W.1 Jugal Kishore is the informant, who has supported the contents of FIR in his examination-in-chief. The whole dispute arose over the game of cards (gambling). The occurrence took place on 02.10.1995 at 9:00 p.m. The victim Pawan was his (Jugal Kishore’s) nephew. When accused Banshi Lal inflicted blow of knife on the chest of Pawan, on the exhortation of Kala, one Rakesh, who was also present on the seen of occurrence, came rushing to the informant and apprised Jugal Kishore with the whole incident. The informant along with other people went to the place of occurrence only to see that Pawan was in critical condition. He was taken to Ram Krishan Mission Hospital and then to Government Hospital, Hardwar, where the doctors declared him ‘brought dead’. The informant has proved his complaint (Ext.Ka-1). 4 8. P.W.2 Rakesh Kumar has proved the prosecution story in his statement. Although he was present where the gambling was going on but he was not playing cards. It is he who had narrated the incident to informant Jugal Kishore whereupon Jugal Kishore lodged complaint (Ext. Ka-1) with the police. P.W.2 Rakesh Kumar has supported the prosecution version in its entirety. The eyewitness account given by this witness hardly leaves any room for doubt that the assailants participated in the crime. He has narrated the story in most natural way. One accused caught hold of the victim and another inflicted blow of knife on victim’s chest. P.W.2 Rakesh Kumar was subjected to a detailed cross-examination, but nothing has come out in his evidence which may cast any doubt on his submissions before the trial court. Foundation of prosecution case was built on the basis of information supplied by this eyewitness to the informant. 9. P.W.4 S.I. Bhagwan Yadav was posted as S.I. in P.S. Kankhal on 03.10.1995. He wrote inquest report (Ext. Ka-2). He has also proved certain papers which are available on record from Ext. Ka-3 to Ext. Ka-7. In his cross-examination he has said that he filled up inquest report on 03.10.1995 at 8:00 a.m. (which process continued up to 10:00 a.m.). He has made a mention of one injury on the left hand side of the chest of the victim, which was inflicted by the blow of knife. 5 10. P.W.4 S.I. Bhagwan Yadav has also proved site plan (Ext. Ka-15) and charge sheet under Section 25 Arms Act against appellant Banshi Lal (Ext. Ka-16). 11. P.W.5 Dr. Pradeep Kumar was posted as Medical Officer on duty on 03.10.1995 at District Hospital, Hardwar. On that day he had conducted post mortem on the body of the deceased Pawan Kumar, aged 17 years. This post mortem was conducted on 03.10.1995 at 12:10 p.m. He had found the following ante mortem injuries on the body of deceased: “Incised wound 2.5cm × 1cm × chest cavity deep on the left side chest. 8cm below left nipple at 7’o clock position. On opening the wound 5th left rib out and divided pericardium & left ventricle cut 100ml fluid blood present in pericardium and one litre fluid blood present in left pleural cavity. Direction of wound backward and upward.” 12. The doctor has proved his report (Ext. Ka-8). According to him, the cause of death of victim was hamorrhage and shock due to ante mortem injuries. The doctor has also said that the death of victim was possible on 02.10.1995 at 10:00 p.m. with the blow of knife. 13. P.W.6 S.I. Mahesh Chand was posted on 03.10.1995 as Inspector Kankhal. He had conducted investigation of crime no. 120/95 under Section 302 IPC. S.I. Mahesh Chand has proved chik FIR, he took statements of the witnesses, inspected place of occurrence and has proved site plan (Ext. Ka-9), memo of slippers and candle 6 (Ext.Ka-10), document with regard to taking sample of simple soil and blood stained soil (Ext.Ka-11), recovery memo of incriminating article (knife) as Ext. Ka-12 and submitted charge sheet under Section 302 IPC against the appellants as Ext. Ka-13. He has also proved site plan of recovery of knife (Ext.Ka-14) and has also proved Material Exhibits such as slippers, candles, paper, samples of blood stained soil and simple soil, clothes, knife and photographs, etc. 14. P.W.7 Ashok Kumar is the photographer who had taken the photographs at the instance of Police Officer conducting the investigation. 15. P.W.8 Head Constable Sahab Singh is the witness to recovery of knife at the pointing of appellant Banshi Lal. He has proved knife as Material Ext.19 and recovery memo Ext.Ka-12. 16. P.W.9 Surendra Singh is the witness who had sent the knife which was used in the commission of the crime to Forensic Science Laboratory, Agra and has also proved G.D. to this effect. P.W.10 Constable Rajpal Singh has proved chik FIR Ka-18 and entry in the G.D. as Ext. Ka- 19. He has also proved the FIR relating to the institution of criminal case under Section 25 Arms Act as Ext.Ka-20 and entries in the G.D. as Ext.Ka-21. 17. Statements of the accused persons were taken under Section 313 Cr.P.C. in which they have said that they have been falsely implicated in the case. No evidence was however, adduced in defence. 7 18. Now we come to the eyewitness account of the most important witness, i.e. P.W.3 Hari Om. A detailed and close scrutiny of the testimony of this witness is required, and therefore, his evidence is being discussed at length. P.W.3 Hari Om s/o Govind Ram has said in his examination-in-chief that on 02.10.1995 at around 9:00 p.m. Rakesh, Bhura, Banshi Lal, Kala, Pawan and he himself were playing cards on the roof of Sanjay’s house. Rakesh was not playing cards. The cards were being played in the light of the candle. Pawan and Banshi Lal were quarrelling. Banshi Lal was challenging Pawan that nobody has won (cards) from him till today. Banshi Lal was insisting upon Pawan to play cards. They started quarrelling and started abusing. At this, Kala caught hold of Pawan. Banshi Lal took out the knife. Kala exhorted Banshi Lal to kill Pawan and not to leave him. Banshi Lal inflicted a blow of knife on Pawan. It pierced his chest. They tried to catch hold of appellants. Banshi Lal waived his knife and both of them fled away. He had seen Banshi Lal inflicting the blow of knife on the chest of Pawan. Rakesh had gone to the mother of Pawan. Later on Rakesh came on the spot. This incident was seen by him, Bhura and Rakesh. 19. In cross-examination, P.W.3 Hari Om said that his house is situated at about 10-15 paces away from the place of occurrence. He met Kala and Banshi Lal near the house of Kala that day. He did not ask them (appellants) not to play cards. Rather he himself played cards with them. Since this witness was not with Pawan therefore, 8 he could not say whether Pawan asked them (accused) not to play cards or it was otherwise. Initially all of them went on to the rooftop to play cards. This witness never played cards with Pawan before this incident. He did not play cards with Banshi Lal before this incident took place. The pack of cards were brought by Kala. Pawan’s residence was situated at about half a kilometre away from his residence. He was stopped by Banshi Lal and Kala to play cards. They did not force him for the same. Deceased Pawan was the ultimate beneficiary. He had earned the maximum money. Pawan had won the money from this witness also. They were not in inimical terms before this incident took place. This witness never played cards before this incident. This game of cards lasted for 20-25 minutes. Banshi Lal was in drunken state that day. His mouth was smelling foul but he was in conscious state. This witness was in the habit of keeping wrist watch occasionally. They sat at 8:30 p.m. to play cards. All of them sat together for the game (of cards). This witness had no enmity with any of the accused before the incident took place. He treated Pawan (on the one hand) and Banshi Lal, Kala (on the other hand) with equality. Both sides were equal to him. But their family and his family are not in talking terms after the date of incident. He felt sad after the death of Pawan. Pawan’s parents felt more sad than him because of Pawan’s sad demise. This witness denied certain suggestions which were advanced on behalf of the appellants. 9 20. P.W.3 Hari Om has also stated in the cross- examination that Rakesh alone was sitting on the boundary of the roof. They were not playing cards in the dark. They were playing it in the candlelight. Moreover, a lamppost was also there at a distance of 5-6 paces. Candle was burning. The roofs adjacent to each other were more or less of the same level. Pawan and Rakesh came together to play game. This witness met Pawan and Rakesh (while coming to play game) in the presence of appellants. It took 3-4 minutes in the scuffle. Banshi Lal and Kala fled away instantly. This witness waited for a while. He waited for 1-2 minutes to see the condition of victim. Thereafter, he came back to his residence. He reached hospital later on at 11:30 p.m. He was perplexed and therefore, did not meet anyone. He went outside his house only to find out the state of affairs. Bhura did not accompany him after the incident. He did not know where Bhura had gone after the incident. This witness is not aware whether the candle was still burning after the scuffle took place or not. He also said that there was moonlight as well as light coming from the back (of the lamppost). It was a moonlight that day. When this witness reached G.D. Hospital at 11:30 p.m., Pawan had passed away. He came out from the hospital with Rakesh at 12:30 a.m. Victim Pawan fell on another roof after receiving the blow of knife. Pawan’s clothes were soaked in the blood. He has denied the suggestion put forward on behalf of the appellants that he had not seen the occurrence. 10 21. The eyewitness account given by P.W.3 Hari Om is natural. He was present on the spot. He was also participating in gambling. He had no enmity with the appellants. Since he was playing cards with the victim and both the appellants therefore, his presence on the spot can not be doubted. He is a natural eyewitness to the incident. The game was being played in the candlelight. Moonlight was also there. A lamppost was also there at a little distance so it was not possible not to identify the appellants. The appellants are named in the FIR. There was no question of holding test identification for them. Since the appellants were also playing cards with the victim and this witness therefore, it was not difficult for anybody to see that one of the appellants caught hold of victim and another inflicted a blow of knife on the victim’s chest. It pierced his heart and victim collapsed. All the persons including the witness were notorious gamblers. Since the victim was winning and appellant Banshi Lal did not want him to go after winning money, therefore he insisted upon him to play more. One of the accused / appellant caught hold of him and another inflicted blow of knife. The prosecution story is clear so far as the participation of the appellants in the crime is concerned. One cannot fathom that a ghost had come and he had committed the murder. Somebody, who was sitting there had done it. Although the appellants have a right to maintain silence, but they had not said anything specific in their statements under Section 313 Cr.P.C. They cannot get out of the evidence tendered by P.W.3 11 Hari Om. The testimony of this eyewitness is such that it did not require corroboration from any other eyewitness. It is trustworthy, a clinching piece of evidence. The court has to go by the evidence which has been placed before it by the rival parties. The court cannot invent a story beyond record. Either this court has to throw the entire story in river Ganges or accept it as portrayed by the prosecution. But, it cannot be accepted in bits and pieces. The eyewitness account of P.W.3 Hari Om inspires confidence. He was a gambler. He was also loosing like others. He was gambling with appellants and victim. Why should his testimony be disbelieved? If certain suggestions have been put to him on behalf of the appellants, they do not partake the nature of proof. In case the appellants or any of them was not present on the place of occurrence on the fateful day, as argued by learned counsel for the appellants, it was for them to have established that they were not there. The prosecution has done its job. If the prosecution has discharged its sole responsibility of establishing the presence and participation of the appellants in the crime, it was for the appellants to create suspicion in the mind of the court that they were not present on the spot. Unfortunately the appellants have not been able to create doubt in the prosecution story. The prosecution, on the other hand, has fully discharged its responsibility. It has been able to prove its case against the appellants beyond reasonable doubt. 12 22. Learned counsel for the appellants has also argued that the parents of the victim have not appeared in the witness box. In the opinion of this court this fact itself hardly makes any difference. It is the quality of the evidence which matters and not the quantity of evidence. It was for the prosecution to have produced any number of witnesses but the success of prosecution lay on the fact as to how trustworthy these witnesses were. Had the prosecution produced 50 witnesses and their testimony did not inspire confidence to the court, their evidentiary value was nil. On the contrary, if two or three quality witnesses are produced and their testimony is worth credence, that itself brings success to the prosecution. In the instance case the oral testimony of P.W.3 Hari Om is duly supported by the testimony of other witnesses. Eyewitness account of P.W.3 Hari Om is duly corroborated by the medical evidence and therefore, this court has no hesitation in coming to the conclusion that the prosecution has been able to prove its case against the accused persons beyond reasonable doubt. 23. The appeal preferred by appellants Banshi and Kala is, therefore, dismissed. The order of conviction passed by the trial court on 23.07.2002, is hereby affirmed. The order of sentence awarded to the accused / appellants Banshi and Kala by learned trial court is also affirmed. Appellants Banshi and Kala are on bail. Their bail is cancelled. They are directed to surrender before the court concerned to serve out the sentence awarded to them by the trial court and affirmed by this court. 13 24 Let a copy of this order as well as the lower court record be sent back to enable the court concerned to carry out this order. (U.C. Dhyani, J.) (Barin Ghosh, C.J.) Dt. December 28, 2011. Sanjay