HIGH COURT OF UTTARAKHAND AT NAINITAL (Court’s order whether the case is or not approved for reporting) (Chapter VIII, Rule 32(2)(b) Description of the Case. Crl. Appeal No. 611 of 2001 (Old No. 1565/1989) Khalid …Appellant Vs. State. …Respondent A.F.R. (Approved for Reporting) Not approved for Reporting Date of Decision 4th March, 2008 Initial of Judge. ----------------------- Reserved Judgment HIGH COURT OF UTTARAKHAND, AT NAINITAL Criminal Appeal No. 611 of 2001 (Old No. 1565 of 1989) Khalid S/o Sri Sultan Khan, R/o Mamu Transport, Near Mangal Parao, Line no.1, Banbhulpura, Police Station-Haldwani. District Nainital. -------Accused/appellant. Versus The State ------- Respondent Sri S.K. Agarwal, Sr. Counsel assisted by Mr. S.S. Bhandari, learned counsel for the appellant Sri Harish Pujari, learned Addl. Govt. Advocate for the State. Dated: March 4, 2008 Hon’ble Dharam Veer, J. This appeal preferred u/s 374(2) of The Code of Criminal Procedure, 1972 (hereinafter referred to as the Cr.P.C.) is directed against the judgment and order dated 18th July 1989 passed by the Sessions Judge, Nainital in Sessions Trial no. 181 of 1987 State vs. Khalid whereby the learned Sessions Judge has convicted the appellant/ accused u/s 307 of The Indian Penal Code, 1860 (hereinafter referred to as the I.P.C.) and has awarded sentence to undergo rigorous imprisonment for a period of 5 years. 2. In brief, the prosecution case is this that P.W.1 complainant Inder Singh Parihar has lodged a First Information Report at Police Station Haldwani, district Nainital on 21.07.1987 with the averments that on 21.07.1987 at about 9:30 p.m. he was coming on a scooter, after purchasing vegetables from the market, and when he reached in front of hazara Hotel then Suresh Chandra Moga had met with him and has asked the complainant to carry him to Mukhani. Meanwhile, the accused/appellant Khalid had reached there and asked the complainant that he will also go with the complainant. The complainant has refused Khalid due to the reason that his scooter is not in a normal condition and three persons can not go in the scooter thereafter he made efforts to start the scooter. Meanwhile, the appellant Khalid had caused injuries at his right abdomen with a knife and ran away from the place of occurrence. When the complainant raised alarm then Inder Singh S/o Daulat Singh and so many other persons gathered on the place of occurrence. With the same allegations the injured Inder Singh Prihar has dictated a report to G.S. Nayal. The written report is Ext. Ka-1. On the basis of this written report, Constable Clerk Sheo Kumar Sharma has prepared a Chik First Information Report on 21.07.1987 at 09:45 p.m., which is Ext. Ka-5. Distance of place of occurrence from police station is shown about ½ Furlong. An entry was made in the General Diary, a copy of which is ext. Ka-6. The injured Inder Singh was medically examined by P.W.4 Dr. S.P. Ojha, Medical Officer Civil Hospital, Haldwani on 21.07.1987 at 10:15 p.m. The injury report is marked as Ext. Ka-3. The injured was also examined by another surgeon P.W.5 Dr. Ashok Sharma and he had also prepared a medical report which is marked as Ext. Ka-4. 3. The investigation of the case was entrusted to Sub Inspector R.D. Shukla-P.W.8 who has investigated the case from 21.07.1987 to 23.07.1987 and thereafter the investigation was transferred to P.W.-9 S.S.I. Sri R.S. Pandey. During the course of the investigation the Investigation Officer has recorded statements of the witnesses. S.I. R.D. Shukla has also prepared site-plan of the place of occurrence, which is Ext. Ka-7 on the record. The Investigating Officer S.S.I. Sri R.S. Pandey, during the course of investigation, has also taken in his possession the bloodstained shirt of the injured Inder Singh Parihar and a Fard in this regard was prepared which is Ext. Ka-2. After completing the investigation, the Investigation Officer filed charge sheet against the accused/appellant u/s 307 I.P.C. The charge sheet is Ext. Ka-8 on the record. 4. On 22.07.1987 at 1:20 a.m. Sri P.S. Kutiyal, the then Sub Divisional Magistrate, Haldwani has recorded statements (dying declaration) of the injured Inder Singh Parihar. The statements (dying declaration) is Ext. Kha-1 on the record. 5. Learned Chief Judicial Magistrate, Nainital on receipt of the charge sheet, after giving necessary copies to the accused as required u/s 207 Cr.P.C., committed the case to the Court of Sessions for trial on 04.09.1987 u/s 209 Cr.P.C. 6. Learned Sessions Judge, Nainital after hearing the parties on 24.11.1987 framed the charge of offence punishable u/s 307 I.P.C. against the appellant/accused. The charge was read over and explained to the accused who pleaded not guilty and claimed to be tried. 7. The prosecution, to prove its case, has examined P.W. 1 Inder Singh Parihar, injured and complainant of the case, P.W. 2 Indra Singh Bora, eye witness, P.W.-3 Prem Singh Negi before whom the Shirt and Pant of the injured were taken in possession and a recovery memo was prepared, P.W.-4 Dr. S.P. Ojha who has medically examined the injured Inder Singh Parihar, P.W.5 Dr. Ashok Sharma surgeon who has conducted the operation of the injured Inder Singh Parihar, P.W.6 Constable Sheo Kumar Sharma who prepared the Chik report and also made entry in the G.D., P.W.7 S.I. R.D. Shukla who has conducted the investigation from 21.07.1987 to 23.07.1987, P.W.8 SSI Sri R.S. Pandey who has investigated the case since 23.07.1987 and submitted the charge sheet, after completing the investigation on 06.08.1987. 8. The oral and documentary evidence was put to the accused in the form of questions who, in reply, denied the allegations made against him and has stated that he has been falsely implicated in the case due to the enmity. The accused in his defence has examined two defence witnesses. D.W.1 is Sri P.S. Kutiyal, S.D.M. Haldwani who has recorded the statement (dying declaration) of the injured Inder Singh Parihar on 22.07.1987 at 1:20 a.m. D.W.2 is Dr. S.C. Mittal who has given the certificate before recording statement (dying declaration) that the injured Inder Singh Parihar was completely normal, entirely in sense and was capable of making statements. Dr. Mittal has also proved the certificate of fitness of the injured on the dying declaration statements Ext. Kha-1. 9. After appreciating all the evidence available on record and hearing upon learned counsel for the parties, the learned Sessions Judge convicted the accused/ appellant for the offence punishable u/s 307 I.P.C. vide judgment and order dated 18th July 1989 and awarded rigorous imprisonment for a period of 5 years. Aggrieved with the impugned judgment and order the appellant has preferred the present appeal. 10. I have heard Sri S.K. Agarwal, learned Senior Connsel assisted by Sri S.S. Bhandari, learned counsel for the accused/appellant and Sri Harish Pujari, learned Addl. Govt. Advocate for the State. 11. Before further discussion, it is pertinent to mention the injuries found in the person of the injured Inder Singh Parihar which are reproduced as under:- “Incised wound 3.5 cm X 0.5 cm X 2cm deep on the right lumbar region.” 12. The injury report is Ext. Ka-3 which is proved by P.W.-4 Dr. S.P. Ojha. 13. The prosecution to prove its case, first of all, has examined P.W.1 Inder Singh Parihar, injured ho has stated that on 21.07.1987 at 9:30 p.m. he was going to his house in a scooter and when he reached near Hazara Hotel then Suresh Moga has stopped his scooter and has asked him that he will also go with him (Inder Singh- P.W.1) and Suresh Moga had sat on the back seat of the scooter. Meanwhile the accused/appellant Khalid also reached there and also requested to Inder Singh Parihar to take him in the scooter. The complainant has refused Khalid saying that three persons cannot got on the scooter. On this the accused has caused injuries to him (Inder Singh Parihar) with the knife on his right abdomen. The injured made alarm. On hearing the noise another Inder Singh S/o Daulat Singh and so many other persons reached on the place of occurrence. Suresh Moga was also present at the place of occurrence prior to reaching of the other persons. In the meanwhile a Jeep was arrived at the place of occurrence and boarding on that Jeep the injured alongwith Inder Singh S/o Daulat Singh and Suresh Moga reached to the Police Station. He has further stated that he had written the report of the incident on the place of occurrence and handed over the same to Girdhar Singh to lodge report in the Polcie Station, thereafter he had gone to hospital on the same Jeep. In the hospital the injured was medically examined by the Medical Officer and was admitted in the hospital where his operation was also conducted by the doctor. This witness has further stated that after causing injuries to him with knife the accused has ran away from the place of occurrence. This witness has proved the written report Ext. Ka-1, which he lodged at the Police Station. He has further stated that at the time of the incident he was wearing a shirt, which was bloodstained and the same was taken by the I.O. in his possession and a recovery memo in this regard was prepared and he also signed the recovery memo Ext. Ka-2. He has further stated that he remained admitted in the hospital for a period about 1½ month. In cross- examination in para-5 he has stated that his dying declaration was recorded by S.D.M. Haldwani Sri P.S. Kutiyal in the hospital. In para-10 of the cross- examination this witness has stated that a sealed envelope was opened in the Court and inside the envelope the dying declaration recorded in the hospital was taken out the paper no. 31Ka was to be the dying declaration. In para- 11, this witness has stated that he did not remember that if he has given any statements before the S.D.M. in the hospital or not. 14. P.W.2 Sri Inder Singh Bora S/o Daulat Singh has stated that the injured Inder Singh Parihar was not known to him and the accused Khalid was already known to him. On 21.07.1987 at 9:30 p.m. he was coming from Sindhi Sweet House to Kaladhungi Chauraha and when he reached in front of Hazar Hotel he had seen number of persons gathered there and Inder Singh Parihar was carrying on account of his injury and blood was oozing out from his injury. Suresh Moga was present on the place of occurrence. This witness has further deposed that he asked from Inder Singh Parihar how he received the injury then Inder Singh Parihar told that Khalid has inflicted injuries to him with a knife. This witness has further deposed that he saw the present accused/ appellant running towards Kaladhungi Chauraha then he and Suresh Moga had taken the injured Inder Singh Parihar first to the Police Station and then to the hospital where he got admitted. 15. P.W.3 is Sri Prem Singh Negi who has stated that on 24.07.1987 the Investigating Officer has taken the bloodstained Shirt and Pant of the injured in his possession and kept them sealed. A Fard in this regard was prepared and this witness also made signature on the Fard, which is Ext. Ka-2. He has further stated that a sealed packet was opened in the Court and after seeing the Shirt and Pant he identified the same that these were the identical Shirt and Pant, which were taken into possession by the I.O. and marked as Ext. I & II. 16. P.W.4 is Dr. S.P. Ojha who has stated that on 21.07.1987 he was posted as Medical Officer in Civil Hospital Haldwani. On that day at 10:15 p.m. he medically examined the injured Inder Singh Parihar and found the injury mentioned in para-11 above on the person of the injured. He has further deposed that the injury received by the injured could be cause by a sharp edged weapon and was fresh at the time of medical examination, therefore the case was referred to the surgeon. This witness has proved the injury report Ext. Ka-3. 17. P.W. 5 Dr. Ashok Sharma, surgeon has stated that he was posted as surgeon in Civil Hospital Haldwani since July 1987. The case of the injured Inder Singh Parihar was referred by Dr. S.P. Ojha, Medical Officer on 21.07.1987. Blood was oozing out from the injury received by the injured and operation was necessary, therefore he did operation and controlled the bleeding. The witness has also prepared a report of the surgical treatment which is Ext. Ka-4. 18. P.W.-6 is the Constable Sheo Kumar Sharma, who has stated that on 21.07.1987 he was posted as Constable Mohrir in Police Station, Haldwani. He has stated that on the day of incident i.e. on 21.07.1987 at 9:45 p.m. Inder Singh Parihar has lodged written report Ext. Ka-1 in the Police Station and on the basis of that report he prepared a Chik report Ext. Ka-5 and made entry in the G.D., a copy of which is Ext. Ka-6. 19. P.W.-7 is Suresh Moga who has stated that Inder Singh Parihar is known to him. It is further stated that on 21.07.1987 at about 9:30 p.m. he was going from Sindi Sweet House towards Kaladhungi Road at this moment Inder Singh Parihar riding in a scooter met with him. This witness stopped the scootere of Inder Singh Parihar at Hazara Hotel and told that he also wants to accompany with him in the scooter and sat behind the back seat. Meanwhile, the accused Khalid had reached to the place where this witness and Inder Singh Parihar were standing and had also asked to Inder Singh Parihar that he would go with him. On this Inder Singh Parihar told the accused that his scooter is not a normal condition, therefore three persons cannot got in the same scooter. Meanwhile, Inder Singh received injury of knife and accused Khalid had ran away from there. This witness has further stated that he did not see Khalid causing injury to Inder Singh Parihar with a knife. (eSa [kkfyn dks pkdw ekjrs gq, ugha ns[kk ik;k). He has further stated that on making noise another Inder Singh and some other persons have reached on the place of occurrence. Thereafter, the injured was taken in a Jeep to the Hospital. This witness has stated that the hospital employees have told them that first to lodge F.I.R. and then come to the hospital due to this reason Inder Singh Parihar had gone to the Police Station and lodged F.I.R. then he was taken to hospital where he was medically examined. Blood was oozing out from his injuries. In cross, this witness has stated that the Investigating Officer has not recorded his statement during the investigation. In para-5 of his cross-examination, this witness has stated that Ext. Ka-1 First Information Report was written in the Police Station. In para-13 he has stated that he had not seen Khalid for giving a blow of knife. ([kkfyn dks eSusa pkdw ekjrs ugha ns[kk). 20. P.W.-8 is S.I. R.D. Shukla who has stated that on 21.07.1987 he was posted as Sub Inspector, Police Station, Haldwani. Investigation of the case was entrusted to him and during the course of investigation he recorded the statements of witness Inder Singh S/o Daulat Singh and in the hospital he also recorded the statements of injured Inder Singh Parihar and other witnesses. This witness has further stated that on the same day after making inspection of the place of occurrence he prepared the site plan which is Ext. Ka7. On 23.07.1987, investigation of the case was transferred to SSI R.S. Pandey. 21. P.W.9 is SSI R.S. Pandey, who has stated that in the month of July & August 1987 he was posted as Senior Sub Inspector in Police Station, Haldwani. Investigation of this case was conducted by S.I. R.D. Shukla till 23.07.1987 thereafter the C.O., Haldwani has transferred the investigation from S.I. R.D. Shukla to him. During the course of investigation, this witness has taken bloodstained Shirt and Pant of the injured in his possession and the recovery memo Ext. Ka-2 was prepared. During the course of investigation he has recorded the statements of the witnesses and after completing the investigation he submitted the charge sheet Ex. Ka-8 on 06.08.1987. 22. The oral and documentary evidence in question form was put to the accused/appellant u/s 313 Cr.P.C. who has denied the allegations made against him and has stated that he was falsely implicated in the case due to the enmity. 23. The accused/appellant in his defence has produced D.W.1 P.S. Kutiyal, the then Sub Divisional Magistrate, Haldwani who has stated that on 22.07.1987 he was posted as S.D.M., Haldwani and on that night at 1:20 a.m. he recorded statement (dying declaration) of Inder Singh Parihar S/o D. S. Parihar, resident of Girdhar Niwas, Nawabi Road, Haldwani. This witness has stated that before recording the statements the injured was completely normal, entirely in sense and he was capable to express his statement. Whatever the statements the injured has given, he noted down the same and during the course of giving statements Inder Singh was entirely in sense. The statement recorded by this witness, which is Ext. Kha-1 was also signed by the injured. This witness has further deposed that the injured Inder Singh Has given the following statements. (esjs ,d feyus okys Jh eksxk us dgk fd esjh iSUV QV jgh gS eq>s ?kj rd NksM+ nks mlds lkFk ,d yM+dk vkSj Fkk eSus mlls dgk fd esjs LdwVj dk ‘kkSdj VwVk gqvk gS eSa mldk uke ugha tkurk rks oks esjk LdwVj Nhuus yxk rHkh eSaus euk dj fn;k rks ns[krs gh ns[krs mlus esjs pkdw ekj fn;k). “One of my visitors Sri Moga had told me that his Pant is torn therefore leave him to his home, another boy was with him and I told him that shocker of my scooter is broken, I do not know his name. At this; he attempted to snatch my scooter hence I refused and suddenly he caused knife blows to me.” 24. D.W.-1 Sri Kutiyal has stated that Inder Singh has also said that (eksxk dk eSa iwjk uke ugh tkurk mls ekek dgdj iqdjkrs gS). D.W.-1 Sri Kutiyal has further stated that whatever statements Inder Singh had given to him that were written by him, no word was added or reduced. And he has taken certificate of a doctor. 25. D.W.-2 is Dr. S.C. Mittal, who has stated that on 22.07.1987 he was posted in Civil Hospital, Haldwani. On that night at 1:20 a.m. statement (dying declaration) of Inder Singh Parihar was written by S.D.M., Haldwani. This witness has stated that before recording the statements by the S.D.M., the injured was examined by this witness and after examination he found that the injured was in complete sense and was capable to give statements. This witness has given the certificate on the Ext. Kha-1 before recording the statements which is in his signature and on his own hand writing. This witness has further stated that during the course of recording statements the injured Inder Singh was in full sense and after recording the statements he remained entirely in sense and this was the reason this witness has appended certificate at the end of the statements which is of his own hand writing and under his signatures, the description of which is in Ext. Kha-1. 26. Learned Senior Counsel on behalf of appellant Sri S.K. Agarwal has argued that the incident was said to be taken place on 21.07.1987 at 9:30 p.m. and the Chik First Information Report was prepared at 9:45 p.m. The injured was examined at 10:15 p.m. in the Civil Hospital, Haldwani. He has vehemently submitted that the First Information Report is ante-timed and for that he has argued that the statement (dying declaration) of the injured Inder Singh Parihar- P.W.1 was recorded by D.W.1 Sri P.S. Kutiyal S.D.M. Haldwani at 1:20 a.m. in the night on 22.07.1987 and in that statements which is Ext. Kha-1 on record the injured has not named the present accused/appellant that the accused has caused injury to him with knife. It is further argued that D.W.-2 Dr. S.C. Mittal has appended a certificated that before or during the time of recording statements or after recording the statements, Inder Singh-Injured was entirely in sense and he had not named the accused/ appellant in his statements (dying declaration) recorded by the S.D.M. and the name of the appellant has been mentioned in the First Information Report which shows that the First Information Report was not lodged at 09:45 p.m. in the Police Station on the time mentioned in the Chik F.I.R. The argument advanced by the learned Senior Counsel for the appellant is fully corroborated and supported by the evidence discussed above as the S.D.M. Haldwani D.W.-1 Sri P.S. Kutiyal has written the statement (dying declaration) of the injured Inder Singh (P.W.-1) on 22.07.1987 at 1:20 a.m. and the injured has not named the present accused/ appellant in his statement (dying declaration), which creates doubt in the prosecution case as well as of the time mentioned in the Chik First Information Report shown to be lodged in the Police Station. 27. Learned Senior Counsel for the appellant has further argued that P.W.-2 Inder Singh Bora who is said to be the eye-witness in the First Information Report has not supported the prosecution case, however he was not declared hostile by the prosecution. It is argued that P.W.2 Inder Singh in h is statement has stated that he has not seen the incident and the injured Inder Singh told him that the present accused/appellant had caused injury to him. Thus, it is argued that the statements of this witness clearly indicates that P.W.2 is not the eye-witness and he did not see the said incident. It is further argued that P.W.-7 Suresh Moga has also stated that he has not seen the present accused/appellant Khalid causing injury with the knife to the injured Inder Singh as he has stated that (eSa [kkfyn dks pkdw ekjrs gq, ugha ns[k ik;k). Thus, from the statements of P.W.-7 it is submitted that Suresh Moga had also not seen the present accused/appellant causing injury with knife to Inder Singh Parihar. In this juncture, learned Sr. Counsel has submitted that the two so-called eyewitnesses, namely Inder Singh Bora and Suresh Moga have not supported the prosecution case and even they have not been declared hostile by the prosecution. Learned Sr. Counsel for the appellant Sri S.K. Agarwal has submitted that the statements of the injured recorded by the D.W.-1 P.S. Kutiyal, S.D.M., Haldwani in the night on 22.07.1987 at 1:20 a.m. is now will be read as the statements recorded u/s 164 Cr.P.C. It is further submitted that now the only evidence against the accused/appellant is the evidence of P.W.1 Inder Singh Parihar and in these circumstances, he has submitted that on the basis of solitary evidence conviction is not justified if in case, the solitary evidence does not inspire confidence. From the statements of P.W.1, which he has given in the Court, and the statements which he has given before the S.D.M. are contradictory to each other. It is argued that in the statements given in the Court he has stated that the present accused/appellant had caused injury to him with knife while in the statements given before D.W.-1 P.S. Kutiyal, S.D.M. he has stated that one person was with Suresh Moga who has caused injury to him but he has not named the present accused/appellant in his statements (dying declaration), which creates a doubt in the statements of P.W.1 injured-Inder Singh Parihar. Even the statements of the injured recorded in the Court and that of recorded by the S.D.M. which is after the incident taken place, are contradictory to each other and creates clear-cut doubt on the statements of P.W.1 Inder Singh Parihar and due to this reason the statements of injured Inder