IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 8 of 2000 Anil Dhyani S/o Shri Chandra Dutt R/o Tritiya Mawakot, P.S. Kotdwar District Pauri Garhwal …..…Appellant Versus State of Uttarakhand ……….Opposite Party Shri Vikas Pandey, Advocate, holding brief of Shri V.B.S. Negi, Advocate, and Shri Deepak Bisht, Advocate, (Amicus Curiae) present for the appellant. Shri Prabhakar Joshi, Brief Holder, present for the State. Hon'ble Prafulla C. Pant, J. Hon'ble V.K. Bist, J. Oral: Hon'ble Prafulla C. Pant,J. This appeal, preferred under section 374 of Code of Criminal Procedure, 1973 (for short Cr.P.C.) is directed against the judgment and order dated 31.10.2000, passed by Sessions Judge, Pauri Garhwal, in Sessions Trial No. 56 of 1996, whereby said court has convicted accused/appellant Anil Dhyani under section 304 of Indian Penal Code, 1860 (for short IPC), 2 and sentenced him imprisonment for life. 2. We heard learned Amicus Curiae for the appellant, and learned Brief Holder for the State and perused the lower court record. 3. Prosecution story, in brief, is that on 16.09.1994, at about 10:00 p.m., Bhagwati Prasad Bhatt (deceased) was coming back to his house after closing his shop in Devi Road. When he reached near his house in Ghamandpur Crossing within the limits of Police Station Kotdwar, accused/appellant Anil Dhyani alongwith his associates assaulted him with LATHIS AND KHUKHRI. On hearing shrieks of her husband, P.W.2 Shakambari Devi came out, and saw accused/appellant Anil Dhyani, Co-accused Anoop Khantwal (since acquitted by the trial court), and four others assaulting her husband (Bhagwati Prasad Bhatt) whereafter the accused/appellant, and his associates ran away. P.W.2 Shakambari Devi took her injured husband to her house. Next day morning she took the injured to the Hospital, and sent his daughter to call her brother-in-law (P.W.1 Dwarika Prasad) from Rishikesh. P.W.1 Dwarika Prasad came on 17.09.1994, and got scribed First Information Report (Ex. A1) through one Ramesh Chandra Gaur. On 18.09.1994, at about 1:10 hours (i.e. after mid-night of 3 17.09.1994), FIR was lodged at Police Station Kotdwar, on the basis of which crime no. 609 of 1994, was registered against accused/appellant Anil Dhyani, Anoop Khantwal, and four others relating to offences punishable under section 148, 147, 323, 506 IPC. A check report (Ex. A4) was prepared at the Police Station, and necessary entry was made in the General Diary. Crime was investigated by Sub-Inspector Narshingh Pal. The injured Bhagwati Prasad Bhatt was shifted for further medical treatment from Kotdwar to Roorkee, where ultimately (after about a month from the date of incident) he died on 17.10.1994, at 1:00 p.m.. P.W.5 Dr.V.K. Premi of District Hospital, Haridwar, conducted post-mortem examination on 19.10.1994, on the dead body of Bhagwati Prasad Bhatt, and prepared autopsy report (Ex. A3). He recorded as many as five ante-mortem injuries, and opined that deceased had died due to septicemic shock. After interrogating the witnesses, and on completion of investigation, the Investigating Officer submitted charge sheet against the four accused namely Anoop Khantwal, Anil Dhyani (accused/appellant), Bhuvnesh Chandra, and Parmanand for their trial in respect of offence punishable under section 304 IPC. 4. The Magistrate, on receipt of the charge 4 sheet, after giving necessary copies to the accused, as required under section 207 Cr.P.C., appears to have committed the case to the court of Sessions for their trial . On 27.01.1998, after hearing the parties, learned Sessions Judge, Pauri Garhwal, framed charge of offence punishable under section 304 IPC, against all the four accused namely Anoop Khantwal, Anil Dhyani (accused/appellant),Bhuvnesh Chandra, and Parmanand who pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W.1 Dwarika Prasad (informant), P.W.2 Shakambari Devi (widow of the deceased, and eye witness), P.W.3 Bhawan Singh, P.W.4 Dr. Ashwani Kumar Gupta (who recorded injuries on the person of the injured on 17.09.1994, in the Hospital at Kotdwar), and P.W.5 Dr. V.K. Premi (who conducted post-mortem examination on dead body of the deceased). Genuineness of the document was admitted by the defence counsel, as such no further witnesses were got examined. C.W.1 Constable Satya Prakash Sharma was examined on instruction of the court who proved the document prepared by the Investigating Officer. The oral and documentary evidence was put to the accused under section 313 Cr.P.C., in reply to which they alleged that they have been falsely implicated due to enmity. However, no evidence in defence was adduced. The trial court, after hearing the parties 5 found that the prosecution could not prove successfully charge of offence punishable under section 304 IPC, as against accused Anoop Kantwal, Bhuvnesh Chandra and Parmanand, and acquitted them from the charge. But, as against accused/appellant Anil Dhyani, the trial court found that charge is proved beyond reasonable doubt. Accordingly, he (Anil Dhyani) was convicted under section 304 IPC. The trial court, after hearing on sentence, sentenced the convict to imprisonment for life. Aggrieved by said judgment and order dated 31.10.2000, passed by Sessions Judge, Pauri Garhwal, in Sessions Trial No. 56 of 1996, this appeal is preferred by the convict Anil Dhyani. 5. Before further discussion, we think it just and proper to mention the injuries recorded by P.W.4 Dr. Ashwani Kumar Gupta of Joint Hospital, Kotdwar, found on person of Bhagwati Prasad Bhatt on 17.09.1994. The injuries are mentioned in injury report (Ex. A2) prepared by said medical officer which are being reproduced below:- (i) Traumatic swelling (haemotoma) right side of forehead 4X3cm size. (ii) Haemotoma right maxillary area 8X8cm. (iii) Abrasion right maxillary area with scab 6 formation 6X5cm reddish bluish in colour. (iv) Abrasion right temporal region 4X3cm, 2.5cm from right ear lobule with purulent discharge greenish yellow in colour. (v) Laceration in inside of right ear lobule with seresanious discharge from internal area. (vi) Laceration extending from lateral 2/3 of eye brow 2 X 0.5 X Skin deep. P.W.4 Dr. Ashwani Kumar Gupta has stated that these injuries could have been caused by a blunt object on 16.09.1994, at about 10:00 p.m.. The injury report (Ex. A2) read with the statement of Dr. Ashwani Kumar Gupta indicate that the deceased did suffer injuries on 17.09.1994, at about 10:00 p.m. 6. In order to see as to whether the aforesaid injury resulted in death of Bhagwati Prasad Bhatt or not, it is necessary to mention here the evidence adduced by P.W.5 Dr. V.K. Premi, who conducted post-mortem examination on 19.10.1994, on his dead body, and prepared autopsy report (Ex. A3). Corresponding ante-mortem injuries to the injuries mentioned above are being reproduced below from the autopsy report (Ex. A3):- (i) Abraded contusion 4.0 X 1.5cm inside of right ear. 7 (ii) Old healed abrasion 3.0 X 2.0cm back of right elbow. (iii) Healed abrasion 1.0X 1.0cm on back of left elbow. (iv) Multiple abraded contusion healed 1.0 X 7.0on right knee (front). (v) Traumatic swelling with contusion 20.0 X 10.0cm front and both side of right thigh and right ankle. (vi) Old infected wound 2.5 X 1.5cm on front of right ankle. (vii) Old infected wound 1.5cm X 1.0cm on back of lower thigh of left leg. 7. P.W.5 Dr. V.K. Premi has stated that deceased had died of infection in his body as a result of injury suffered by him. From the medical evidence discussed above, it is established on record that the deceased had died culpable homicide due to the injuries suffered by him in the incident. Now, we have to examine whether accused/appellant Anil Dhyani committed culpable homicide not amounting to murder punishable under section 304 IPC, by causing injuries on person of Bhagwati Prasad Bhatt or not. 8. Sole eye witness of the incident is P.W.2 8 Shakambari Devi (widow of the deceased). She has stated in her examination before the court that on 16.09.1994, between 9:00 to 10:00 p.m., she was cooking food in her house. Her children were busy with their studies. The witness further states that she heard shrieks of her husband, and came out. She saw that her husband was shouting 'BACHAO' (save!). P.W.2 Shakambari Devi further states that she saw accused/appellant Anil Dhyani, and his associates including Anoop Khantwal armed with LATHIS and KHUKHRI. She has further stated that co-accused Anoop Khantwal was armed with KHUKHRI (a sharp edged weapon). The witness has further stated that accused after assaulting her husband ran away. She has further stated that after the incident, Anoop Khantwal came in her house armed with KHUKHRI, and threatened her of dire consequences, if she dared to lodge report of the incident. P.W.2 Shakambari Devi further told that on the next day she took her injured husband to the hospital in Kotdwar, and sent her daughter to Rishikesh to inform her brother-in- law (P.W.1 Dwarika Prasad). According to this witness, when Dwarika Prasad (P.W.1) came to Kotdwar, he was told about the incident, and he got lodged FIR (Ex. A1) at the Police Station. This witness has further stated that her husband was later taken to Roorkee Hospital for further treatment where he 9 succumbed to injuries after about a month, on 17.10.1994. 9. Statement of P.W.2 Shakambari Devi (eye witness) gets corroborated from the medical evidence already discussed above. Evidence adduced by her is further corroborated from the statement of P.W.1 Dwarika Prasad (brother of the deceased who lodged FIR Ex. A1) after he was called by Shakambari Devi to Kortdwar. The presence of P.W.2 Shakambari Devi in her house at the time of incident, and her coming out on hearing shouts is natural and trust worthy. She has been subjected to lengthy cross-examination but nothing has come out which creates doubt in her testimony. 10. On behalf of the appellant learned Amicus Curiae argued that the FIR is highly belated one, and false implication of the accused/appellant Anil Dhyani cannot be ruled out. We have examined evidence on record, and the explanation given by the prosecution for delay in lodging the FIR. Mere delay in lodging FIR is not sufficient ground to disbelieve the prosecution case provided there is sufficient explanation for delay in lodging the report. In the present case, it has come in the evidence of P.W.2 Shakambari Devi that she is a illiterate woman. She has further stated that she was threatened by one of 10 the accused, of dire consequences if she dared to lodge FIR. In the circumstances, she sent her daughter on the next day to Rishikesh to call her brother-in-law who lodged FIR after coming to Kotdwar. In our opinion, the explanation which has come on the record deserves to be accepted, and the prosecution story cannot be doubted on the ground of delay in lodging the FIR. 11. Shri Deepak Bisht, learned Amicus Curiae, pointed out that there is no independent eye witness of the incident, and the evidence of Shakabari Devi who is widow of the deceased should not be believed. Had there been independent witnesses who had seen the occurrence it could have been said that their non examination is material. But in the present case the incident is of 10:00p.m.. At that point of time it has nowhere been mentioned that any other witness could see the incident. In the circumstances, the sole testimony of P.W.2 Shakambari Devi which is otherwise natural, and trust worthy was rightly believed by the trial court. And we see no reason to hold that her testimony should be doubted for the reason that there is no independent witness of commission of crime. 12. The third argument advanced on behalf of 11 the appellant is that co-accused Anoop Khantwal has been acquitted by the trial court, but the statement of P.W.2 Shakambari Devi was believed as against accused/appellant Anil Dhyani which is an erroneous approach on the part of the trial court. We have carefully gone through the statement of P.W.2 Shakambari Devi, and the medical evidence on record. The trial has taken note of the fact that Anoop Khantwal was armed with KHUKHRI which was not used in the crime. There is no injury of sharp edged weapon suffered by the deceased. In the circumstances, trial court did not find it proved beyond reasonable doubt that Anoop Khantwal had actually assaulted the deceased. In our opinion, the case of accused/appellant Anil Dhyani cannot be equated with Anoop Khantwal (acquitted by trial court). 13. Lastly, it is contended on behalf of the appellant that the motive of commission of crime has not been brought on record by the prosecution. We do not find much substance in the contention advanced on behalf of the appellant. It is settled principle of law that where there is direct eye witness account of the incident, motive is not required to be proved by the prosecution. The trial court has rightly observed that what was the motive on the part of the accused is a 12 fact which relates to the state of mind of that person, and the witness who witnessed the commission of crime might not be knowing what was in the mind of the accused. Needless to say it is not a case of circumstantial evidence. 14. However, we agree with the learned Amicus Curiae that the act committed by the accused/appellant Anil Dhyani which is found proved by the trial court is covered under Para 2 of Section 304 IPC, and the trial court has erred in law by sentencing the convict to imprisonment for life. It is pertinent to mention here that incident had taken place on 16.09.1994, and deceased had died after one month on 17.10.1994. Not only this, the post-mortem report (Ex.A3) shows that cause of death was septicemia and shock. P.W.5 Dr. V.K. Premi has stated that deceased had died due to infection as a result of injury suffered by him. Para 2 of Section 304 IPC, provides that if the act is done with the knowledge that it is likely to cause death but without any intention to cause death, or to cause such bodily injuries as is likely to cause death, the punishment for culpable homicide not amounting to murder may extend to 10 years or with fine or with both. Considering the facts and circumstances of the present case, we find that by sentencing the convict 13 Anil Dhyani (accused/appellant) to undergo rigorous imprisonment for a period of seven years will meet the ends of justice. Therefore, we think it just and proper to allow the appeal partly. 15. Accordingly, the appeal is partly allowed. The accused/appellant Anil Dhyani is convicted under section 304 Para 2 instead of 304 Para 1 IPC. He is sentenced to rigorous imprisonment for a period of seven years, instead of imprisonment for life awarded by the trial court. With this modification in the conviction, and sentence this appeal stands disposed of. Appellant Anil Dhyani is on bail. His bail is cancelled. The lower court record be sent back to make the accused/appellant Anil Dhyani serve out remaining part of the sentence as modified by this Court. (V.K. Bist, J.) (Prafulla C. Pant, J.) 29.03.2011 Parul