IN TH E H IGH COURT OF UTTARAKH AND AT NAINITAL Cr im in a l Ap p ea l No. 1936 of 20 0 1 Old . Cr im in a l Ap p ea l No. 2596 of 1998 Da ted of Decision : 0 2.0 4 .20 10 Trilok Singh …Appellant Versus State of Uttar Pradesh …Respondent Present: Mr. Dinesh Chauhan, learned counsel for the appellant. Mr. Nandan Arya, learned A.G.A. for the State. H on ’ble Nir m a l Ya d a v, J . The present appeal is directed against the judgement and order dated 03.11.1998 passed by the Sessions Judge, Almora in Sessions Trial No. 6 of 1997 whereby appellant-Trilok Singh has been convicted under Section 304 part II of the I.P.C. and sentenced to undergo rigorous imprisonment of five years. Brief facts of the case as per the prosecution are, that on 04.11.1996 at about 1:00 p.m. Trilok singh had altercation with his stepbrother Prem Singh and during the course of altercation Trilok Singh assaulted Prem Singh with a lathi on his head. On receipt of the lathi injury Prem Singh fell down and did not regain consciousness till 05.11.1996. Smt. Anuli Devi wife of Prem Singh (deceased) and others were in the process of shifting him to District Hospital but in the meantime Prem Singh expired on the next day i.e. 05.11.1996 at 6:00 p.m. Smt. Anuli Devi had informed about the incident to Nain Singh. After the death of her husband she asked Mohan Singh (PW-2) to report the matter. The report could not be lodged with the Patwari as they were on strike therefore; the was lodged on next day i.e. 06.11.1996. Accordingly Mohan Singh alongwith Himmat Singh submitted a written 2 report Ex. Ka-1 to Naib Tehsildar Bageshwar on 06.11.1996. On the basis of written report Ex. Ka-1, Chick F.I.R. Ex. Ka-2 was registered on 06.11.1996 at 10:30 a.m. in police station Bageshwar which was at a distance of 46 kilometers from village Gansi where the occurrence took place. The house of accused- Trilok Singh and house of the deceased were adjacent to each other. The partition between both the brothers had taken place about ten years ago. The investigation was taken up by Naib Tehsildar, Bageshwar, who reached the village on receipt of the information on the same day at 3:30 p.m. He prepared inquest report Ex. Ka-3. He sent the dead body for postmortem on 07.11.1996. He prepared the site plan Ex. Ka-4 of the place of occurrence and took into possession lathi Ex. Ka-5, which was produced by Smt. Anuli Devi wife of Prem Singh (deceased). The postmortem was conducted by Dr. N.D. Punetha (PW-5), who found the following injuries on the person of the deceased: - (i) Contusion 16 c.m. x 8 c.m. on the right side of head extending from forehead to the vertex of head. (ii) Contusion 5 c.m. x 3 c.m. on the right side of temporal region of head. Haemotoma was found under injury no. 1 as well as injury no. 2. On internal examination skull bone was found fractured under injury no. 1. Blood clot was found underneath both the injuries. In doctor’s opinion, the death was one or one and half day old. The cause of death was due to shock as a result of injury no. 1 and 2. 3 On completion of the investigation, the challan was presented and accused-Trilok Singh was charge sheeted under Section 302 of the I.P.C. to which he pleaded not guilty and claimed trial. The prosecution in order to prove its case produced as many as five witnesses. Smt. Anuli Devi, wife of deceased (PW-1) is the only eyewitness. Mohan Singh (PW-2) is the complainant. Nain Singh (PW-3) is the witness of inquest proceedings. Himalay Singh Martoliya (PW-4) is the Investigating Officer and Dr. N.D. Punetha (PW-5) conducted the postmortem of the deceased. On conclusion of prosecution evidence, statement of the accused-appellant was recorded under Section 313 Cr.P.C. He denied all the allegations of prosecution and claimed innocence and false implication. According to him there was no enmity between him and Prem Singh. They were stepbrothers. He denied having assaulted the deceased. However, he admitted the death of Prem Singh. According to him he has been falsely implicated at the instance of villagers. The trial court after taking into consideration the facts and evidence available on record, came to the conclusion that the statement of Smt. Anuli Devi, the only eyewitness, is empathetic and clear. She was the only eyewitness, who was present at the time of occurrence, which took place at noontime. She has fully supported the prosecution case with regard to the time, date, place as well as the mode and manner of the occurrence. She has categorically stated that no other person was present at the time of occurrence and there is no other house in the near vicinity where the occurrence took place. House of Nain Singh and Balwant Singh are at a considerable distance whereas the house of Trilok Singh is just adjacent to 4 the house of Prem Singh (deceased). This witness however, admitted that occurrence took place all of a sudden and accused caused the injuries with lathi after both Prem Singh and Trilok Singh had an altercation. She also admitted that Trilok Singh had no intention to kill Prem Singh. According to her she immediately informed Nain Singh about the occurrence. After the death of her husband, her father-in-law had gone to lodge the report to Patwari in the village but the same could not be lodged as Patwari was on strike. Thereafter Mohan Singh had gone to report the matter. She also handed over the weapon of offence i.e. lathi, which she had picked up from the place of occurrence and brought the same to her house. Mohan Singh (PW-2) is not the person who had witnessed the occurrence. He had informed the police about the occurrence after he was informed by the wife of Prem Singh (deceased). He belongs to the same village. Nain Singh (PW-3) is the person in whose presence inquest was prepared. He is the signatory to the inquest report, site plan and other documents prepared by the Investigating Officer. The statement of Anuli Devi (PW-1) appears to be quite consistent and trustworthy. She had made the statement with no malice. She clearly stated that Trilok Singh had no intention to kill Prem Singh. We have heard Mr. Dinesh Chauhan, learned counsel for the appellant and Mr. Nandan Arya, learned A.G.A. for the State and perused the material available on record. Learned counsel for the appellant argued that statement of Anul Devi cannot be accepted since she is the interested and partisan witness. The argument of learned counsel for the appellant does not appeal in view of the circumstance and deposition of Anuli Devi in the present case. 5 Her deposition is quite consistent true and honest. Moreover her presence at the time of place of occurrence is natural as her house is just close to the house of accused-Trilok Singh and the deceased. There is no other house in the close vicinity of house of the accused and deceased. Thus, this Court is of the view that there is nothing on record to discard the testimony of Anuli Devi. There is no serious infirmity, which creates doubt in her statement. Thus the conviction has been based on the sole testimony of this witness. Moreover, she informed the facts to Mohan Singh (PW-2) and Nain Singh (PW-3) who supported has statement. Her version finds mention in the inquest report also. Learned counsel for the appellant argued that there is considerable delay in lodging the F.I.R. He pointed out that occurrence took place on 04.11.1996 at 1:00 p.m. and Prem Singh expired on 05.11.1996 at 6:00 p.m., whereas the F.I.R. was lodged on the next day i.e. 06.11.1996 at 10:30 a.m. There is delay of almost two days in lodging the F.I.R. This period might have been used by the prosecution to concoct a false story. After having gone through the evidence on record, this Court is of the view that delay in this case has been satisfactorily explained. It is not disputed that the deceased and accused are stepbrothers and there was no enmity between them. There was a sudden quarrel and during the course of altercation accused-Trilok Singh caused lathi blow on the head of Prem Singh (deceased). Since it was a family dispute and wife of the deceased may not have considered it to be a serious matter as Prem Singh (deceased) was still alive though he was unconscious. She may not have thought expedient to report the matter to the police before the death of her husband. However, after the death of Prem Singh (deceased), efforts were made to lodge the F.I.R. with the concerned Patwari but Patwaris were 6 on strike, therefore, she asked Mohan Singh (PW-2), who reported the matter on the next day in police station Bageshwar which is at a distance of 46 kilometers from the place of occurrence. Even if there is any delay in lodging F.I.R., it does not adversely affect the prosecution case. Learned counsel for the appellant pointed out material contradiction in the prosecution case and memo of possession. As per Ex. Ka-5, the lathi was allegedly taken into possession by the Investigating Officer on 06.11.1996, whereas as per the statement of Himalay Singh Martoliya, the Investigating Officer, (PW-4), he had recorded the statement of Anuli Devi on 07.11.1996 and he also prepared the site plan of the place of occurrence on the pointing out of Anuli Devi and also Anuli Devi handed over one lathi which was used by the accused for assaulting her husband. It appears that the date has been wrongly mentioned due to lapse of time by Investigating Officer as 07.11.1996 in his deposition before the court. His statement was recorded in the court on 11.11.1998 whereas the memo was prepared in the year 1996 i.e. two years prior to his deposition, therefore, he might have forgotten the exact date but this very fact does not in any way create any doubt in the prosecution case. The last argument raised by learned counsel for the appellant is that no offence under Section 304 part II of the I.P.C. is made out. It is argued that the offence would only fall within the purview of Section 326 of the Indian Penal Code. Learned counsel for the appellant argued that admittedly there was no intention on the part of the accused to cause such bodily injury which was sufficient to cause death in the ordinary course of nature. Accused-Trilok Singh had no enmity with the deceased nor had any motive to cause the fatal injury. The case would therefore, fall only for causing grievous hurt. In support 7 of his case learned counsel for the appellant referred the judgment of Apex Court in the case of R a m u Vs. S ta te of U.P. reported in [20 0 4(1) UC 48 6]. The facts of case cited by the learned counsel for the appellant are not applicable in present case. In the present case there is no dispute that the incident emerges out of sudden altercation between the two brothers. They had no previous enmity nor there was any premeditation before the incident. However, it is not disputed that the injury was caused on the vital part of the body. The accused does not appear to have any intention to inflict such bodily injury which was likely to cause death. Even, Smt. Anuli Devi have stated that the accused did not have any intention to cause death of Prem Singh. However, it is well proved from the medical evidence that the injury caused by the accused was on the head of Prem Singh (deceased). There was fracture of the skull. The injury was caused by the accused without any excuse incurring the risk of causing death or such injuries as to the probability of the causing death. In view of the detailed discussion, I find no merit in the appeal and the same is dismissed. Conviction and sentence awarded against the appellant is affirmed. If the appellant is on bail, his bail bonds are cancelled and sureties discharged and he shall be taken into custody forthwith to serve out the sentence awarded by the trial court. (Nir m a l Ya d a v, J .) VKG 0 2.0 4.20 10