IN THE 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 Case. Criminal Jail Appeal No.166 of 2005 (Old No. 863/1991) Date of decision :- 24.07.2007 A.F.R. (Approved for reporting) Not approved for reporting Date :- 24.07.2007 Initials of Judge Note :- Bench Reader will attach this at the top of the first page of the judgment when it is put up before the Judge for signature. HIGH COURT OF UTTARAKHAND, AT NAINITAL Criminal Jail Appeal No. 166 of 2005 (Old No. 863 of 1991) Ashok Kumar S/o Late Sri Sohan Lal R/o 218-A, Frontier Colony, Adarsh Nagar Jaipur, Jaipur ...Appellant Versus State ... Respondent Mr. Chandra Mauli Shah, Amicis Curiae for the appellant Mr. G.S. Sandhu, learned Government Advocate for the respondent- State. Coram: Hon’ble Rajeev Gupta, C.J. Hon’ble J. C. S. Rawat, J. Per Hon’ble J.C.S. Rawat, J. 1. This appeal had been directed against the judgment and order dated 05.06.1987, passed by Sri S.K. Bhatt, then Additional Sessions Judge, Saharanpur in Sessions Trial No. 486 of 1986, whereby the appellant has been convicted u/s 302/309 Indian Panel Code, 1860 (hereinafter as I.P.C.) and sentenced to undergo imprisonment for life u/s 302 I.P.C. & one year simple imprisonment u/s 309 I.P.C. 2. Brief facts emerging from the record are that the father of Rashmi Dua PW1, Poonam PW2 and deceased Seema was a lecturer in D.A.V. Inter College, Roorkee and their mother was also Principal in Kaniya Pathshala, Roorkee. Their parents used to go to school daily at 7:30 a.m. and come back at about 12:30 p.m. from their schools. On 23.08.1986 at about 9:30 a.m., the parents of Rashmi Dua PW1, Poonam PW2 and deceased Seema were not in their house and had gone to the school. Rashmi Dua PW1 was in her bedroom and her maternal uncle accused/appellant was sitting on the chair. The deceased Seema was lying on the bed. Km. Poonam PW2 was studying in the varanda outside the bedroom. Km. Rashmi Dua PW1 had stated that the deceased Seema and the accused/appellant were talking to each other and she could not hear the conversation in between them. The deceased Seema was aged about 20 years and she had completed her M.Sc. (physics). Km. Rashmi Dua PW1 had stated to the accused/appellant that her father was in search of suitable match for the deceased Seema and she would be married as soon as he would get the suitable match. Thereafter, Rashmi Dua PW1 came out of the room and joind her sister Poonam PW2 in the varanda. When both the sisters Rashmi Dua PW1 and Poonam PW2 were in the varands, they heard the cry of their sister Seema from the bedroom. They went towards the room and found that room was bolted from inside and their sister Seema was crying for help and she wanted to come outside the room. The sound of the accused/appellant Ashok Kumar was also coming from the room and he was saying that he would kill the deceased Seema and thereafter, he would also commit suicide. Both the sisters were thumping the doors but they could not get success in opening the doors. In the meantime, cousin of the Rashmi Dua PW1 and Poonam PW2 namely, Rajendra Prasad also came there to give the ‘Prasad’ of Vashno Devi. When he saw the entire incident, he immediately rush to the college to call their father. The accused/appellant Ashok Kumar is the maternal uncle of the deceased Seema, Rashmi Dau PW1 & Poonam PW2 and brother-in-law of Om Prakash Dua PW5 father of the deceased Seema. Rajendra Prasad narrated the entire story what he had seen to the father of the deceased Seema. The father of the deceased and Rajendra Prasad immediately rushed to the house and found that the deceased Seema was lying in the room and she was already dead. Om Prakash Dua PW5, further saw that the accused/appellant was in a room adjacent to the room where the dead body of the deceased Seema was lying and he had bolted the door of the room from inside. He had a knife and he had also sustained the injuries on his person. Om Prakash Dua PW5 enquired about the incident from his brother-in-law accused/appellant Ashok Kumar. The accused/appellant stated to him that he and the deceased Seema had a fight in which both of them had sustained the injuries. On this information father of the deceased Om Prakash Dua PW5 lodged the report to the police station and the police reached at the spot immediately after receiving the information. The investigation officer got opened the room and took the accused/appellant in his custody. The accused/appellant was found in possession of the knife and it was recovered from him by the Investigating Officer. The Investigating Officer prepared the recovery memo Ex.Ka.8. He was admitted in the Government Hospital Roorkee where his injuries were examined by Dr. Surendra Kumar PW4. Thereafter, confessional statement/dying declaration Ex.Ka.1 of the appellant was recorded by the Tehsildar Roorkee. The Investigating Officer prepared the inquest report Ex.Ka7 and took into possession the blood drenched bed sheet and prepared its recovery memo Ex.Ka.16. He also recorded the statement of the witnesses and prepared the site plan Ex.Ka.17. After completing the necessary formalities of the investigation, he submitted the chargesheet Ex.Ka.20 before the court. 3. After submission of chargesheet, the accused-appellant was committed to the court of Sessions for trial and the trial court framed charges u/s 302 and 309 I.P.C. against the accused-appellant. The appellant-accused denied the charges levelled against him and claimed his trial. 4. The prosecution in support of its case examined as many as seven witnesses. Km. Rashmi Dua PW1 is the younger daughter of the informant and younger sister of the deceased Seema. Km. Poonam PW2 is also the sister of Km. Rashmi Dua PW1 and the deceased Km. Seema. At the time of occurrence Poonam PW2 was studying in her verandah. Ranjeet Singh PW3 is the Tehsildar and he had recorded the confessional statement of the accused/appellant Ashok Kumar. Dr. Surender Singh PW4 is the medical officer who examined the accused Ashok Kumar. Om Prkash Dua PW5 is the father of the deceased Km. Seema and real bother-in- law of the accused. He is not an eyewitness of the incident. He wrote the F.I.R. and submitted the same to the police station. Uday Vir Singh PW6 is the witness of inquest report. Inspector Nathi Lal Sharma PW7 is the investigating officer of the case. 5. The accused-appellant was examined u/s 313 Cr.P.C. and he has pleaded not guilty to the offence. He has stated that he has been falsely implicated in this case. 6. The learned Sessions Judge on appreciation of the evidence held the accused-appellant guilty and convicted and sentenced him as mentioned above. 7. We have heard learned counsel for the parties and perused the record. 8. At the outset, it needs to be mentioned here that it is not disputed that the deceased Seema sustained the injuries on her person on 23.08.1986 at about 10:00 a.m. in a room of her house. It is further pertinent to mention here that the accused/appellant Ashok Kumar has admitted the genuineness of the post mortem Ex.K.5 of the deceased Km. Seema. According to the post mortem report EX.Ka.-5 the following ante mortem injuries were found on the person of the deceased Km. Seema:- 1. Incised wound 1.5 cm. X 0.5 cm. X subentanuous line deep in (L) mandiblor region. Obliquely transverse in direction tailing outward and left. Blood present. 2. Incised wound 1 cm. X 0.25 cm. X muscle deep on (L) side neck 6 cm. Below (L) ear in transverse direction. Blood present in wound tailing outward to left. 3. Incised wound 1.5 cm. X 0.5 cm. X muscle deep on top of (L) shoulder in vertical tailing to downward blood present. 4. Incised wound 3 cm. X 1.5 cm. X bone deep on the dorsum of (L) hand space between (L) thumb and (L) index. Direction vertical tailing outward and upward, dried blood present. 5. Incised wound 1 cm. X 0.25 c. X bone deep on the dorsum of (R) little finger. Direction oblique. Dried blood present, tailing outward. 6. Incised would 2 cm. X 0.5 cm. X abdominal cavity deep on (L) side hock in lumber region vertical direction tailing downward 5 cm. Lateral to mid-line hock (Left Kidney damage due to this injury. 7. Incised wound 3 cm. X 1 cm. X abdominal cavity deep (L) side abdomen vertical direction tailing upward. 12 cm. from umbilicus at 3 O clock position. Dried blood present. 8. Incised wound 2 cm. x 0.7 cm. X abdominal cavity deep in (L) side abdomen 8 cm. from umbilicus at 2 O clock position (This injury had damaged stomach and spleen) direction oblique. 9. Incised wound 2 cm. X 1 cm. X abdominal cavity on (L) side abdomen at 1 O clock position, 10 cm. from umbilicus, vertically oblique tailing outward and downward, blood present. 10. Incised wound 2 cm. X 0.5 cm. X abdominal cavity deep transverse direction 5 cm. from umbilicus at 12 o clock position tailing to left. Blood present. 11. Incise wound 2 sc. X 1 cm. X abdominal cavity deep on right side abdomen at 11 O clock position 7 cm. from umbilicus (obliqued downward). 12. Incised wound 3 cm. X 1 cm. X cavity deep on (R) side abdomen in vertical direction, 8 cm. from umbilicus at 9 O clock position tailing downward. Blood present. The doctor has further opined in the post mortem report that the death occurrence due to the shock and hemorrhage as a result of ante mortem injuries found on the person of the deceased. The accused-appellant has also stated in his statement recorded u/s 313 that the deceased Km. Seema was his real niece. On the date, time and place of the occurrence, the accused/appellant and the deceased Km. Seema were alone in the house of the informant Om Prakash Dua PW5. The deceased Km. Seema told the accused/appellant that her father wanted to marry her with some boy to which she did not like and her father does not wanted to marry her with the boy of her liking. Due to this, the deceased Km. Seema wanted to commit suicide and she was very furious at the time. She started causing injuries on her person by inflicting knife blows. The accused/appellant wanted to prevent her to commit suicide and to inflict the injuries on her body but he could not save her inspite of his best efforts to prevent her from committing the suicide and causing injuries by knife. He has further stated that he also sustained the knife injuries when he was preventing her from causing the knife injuries on her person. The prosecution witnesses have also stated that they heard the cry of the deceased from inside the room and they found that the accused/appellant and the deceased Km. Seema were inside the room and the room was found bolted and the deceased Seema was crying for the help. Thus it is amply established that the deceased Km. Seema sustained the fatal injuries resulting her death on 23.08.1986 at about 10:00 a.m. at the place of occurrence. 9. Now we have to consider who is responsible for the injuries caused on the person of the deceased Km. Seema. The case rests on the direct evidence. It is not disputed that the deceased Km. Seema died at the spot on the date of the occurrence. It is also not disputed that she died due to the knife blows sustained by her on her person. The accused- appellant has also stated in his statement recorded u/s 313 that the deceased Km. Seema was his real niece. It is not disputed that the accused/appellant and deceased Seema were present in the room of the house where the deceased Seema sustained the knife injuries resulting her death. According to the accused/appellant the deceased Seema wanted to commit suicide and she immediately started causing injuries on her person by knife. The accused/appellant also sustained the knife injuries when he was preventing her from causing the knife injuries on her person. 10. The prosecution had led the evidence of Rashmi Dua PW1 and Poonam PW2 who are the daughters of the informant Om Prakash Dua PW5. Both the witnesses Rashmi Dua PW1 and Poonam PW2 are the real sisters of the deceased Seema. Both the witness and the deceased Km. Seema were real neice of the accused/appellant. They have stated that their father was lecturer in D.A.V. Inter College, Roorkee and their mother was Principal in Kaniya Pathshala, Roorkee. Both the witnesses have further stated that their parents used to go to school in the morning at 7:30 a.m. and used to come back at about 12:30 in the afternoon. It was further stated by them in their evidence that when the incident took place their parents were not present in the house. On 23.08.1986 at about 9:30 a.m. Rashmi Dua PW1 was in her bedroom and her maternal uncle accused/appellant was sitting on the chair. Km. Poonam PW2 was studying in the varanda outside the room. Km. Rashmi Dua PW1 has stated that the deceased Km. Seema and the accused/appellant were talking with each other and she could not here the conversation in between them. Km. Rashmi Dua PW.1 had stated to the accused/appellant that her father was in search of suitable match for the deceased Km. Seema and she would be married as soon as she would get the suitable match. Thereafter, Km. Rashmi Dua PW1 came out of the room and joined her sister Km. Poonam PW2 in the varanda. When both the witnesses were in the varanda, they heard the cry of their sister Seema. They went towards the room and found that the room was bolted from inside and their sister Seema was crying for help and she wanted to come outside the room. The sound of the accused/appellant was also coming from the room and he was saying that he would kill the deceased Seema and after killing her, he would also commit suicide by killing himself. Both the sisters were thumping the doors but they could not get success in opening the doors. In meantime, cousin of the witnesses namely, Rajendra Prasad reached in the house. He went there only to give the “Prasad” of Vashno Devi to the family members of the informant. Both the witnesses were badly knocking the doors to open it and both of the witnesses were crying not to kill the deceased Km. Seema and open the door. The accused/appellant did not accede to the request of both the witnesses. Seeing so, Rajendra Prasad immediately rushed to the college to call the father of the deceased. When the witnesses were trying to open the door the other persons also reached at the spot and due to the pressure of thumping, the door’s bolt inside the room was broken. Immediately thereafter, the accused/appellant entered into another adjacent room. The accused/appellant again bolted himself inside that room. They found that her sister deceased Seema lying cn the floor and she had sustained the number of injuries on her body. Blood was oozing from the injuries and the witnesses found her dead at the time. The parents of the deceased reached at the spot and they peeped inside the room through window where the accused/appellant got himself bolted from inside. The father of the deceased Km. Seema asked him the reason of injuries which her daughter the deceased Seema sustained at the spot. He told Om Prakash Dua PW5 that a quarrel took place in between them in which both of them have sustained the injuries. Immediately, Thereafter the report was lodged by Om Prakash Dua PW5. The police reached at the spot and got the room opened and apprehended the accused/appellant alongwith knife. During the period when the accused/appellant was inside the room, he also inflicted injuries to himself. 11. The prosecution has also led the evidence of Om Prakash Dua PW5 who is the father of the deceased Seema, Rashmi Dua PW1 and Poonam PW2. He has stated that he is real brother-in-law of the accused/appellant. He has stated in his evidence that his daughters used to treat the accused/appellant as their real brother and he also treated him as his son. The deceased Seema was aged about 20 years at the time of her death and she had completed her M.S. (physics). He has further stated that he was called from the school by Rajendra Prasad where he was employed. When he reached in his home, he found his daughter dead and lying on the ground. He immediately lodged the report with the police. The police accompanied him and reached at the spot. The police also found that the accused/appellant was inside the room and he had bolted the door inside the room. He had also inflicted injuries to himself to commit the suicide. He had further deposed that the police got opened the room and the accused/appellant was taken into custody with a knife. He has further stated that he had talked about the marriage of his daughter 2-3 days’ before in presence of the accused/appellant. Since he had no son, therefore, he always treated the accused/appellant as his son and he never had any suspicion about the accused/appellants illicit relation with his daughter. 12. Learned Amicus Curiae contented that the name of Rashmi Dua PW1 and Poonam PW2 have not been mentioned in the F.I.R., as such, no reliance can be placed on their testimony. It was further contended that Rashmi Dua PW1 and Poonam PW2 are got-up witnesses only to implicate the accused/appellant and their presence at the spot is highly doubtful. Learned G.A. refuted the contention. It is well settled position of law that the FIR is not the encyclopedia in which all the details should be mentioned. If the genesis of the incident has been mentioned in the FIR, it is sufficient. The FIR is lodged only to give the motion to the investigation. It is not reasonably expected that the scared witness especially father of the deceased would be able to give meticulous and the precise account of details of incident that landed on the deceased. The informant has only narrated the summary of the incident. It does not require that the names of the witnesses who were present at the scene of the occurrence must be indicated in the F.I.R. It is also pertinent to mention here that the statement of the witnesses Rashmi Dua PW1, Poonam PW2 and Om Prakash Dua PW5 made u/s 161 Cr.P.C. were recorded on 23.08.1986 immediately after the incident by Investigation Office Nathi Lal Sharma PW7. Thus the prosecution evidence reveals that the statement of Rashmi Dua PW1, Poonam PW2 and Om Prakash Dua PW5 were recorded within few hours of the incident. The Hon’ble Apex Court in the Case on Anil Rai Vs State of Bihar reported in 2001 SCC (Cri) p.1009 has held at para 25 as under:- “25. I also do not find any substance in the submission that because the names of PWs 1 and 5 are not mentioned in the FIR, no reliance can be placed on their testimony. The purposes of the FIR is to set the criminal law in motion which does not require the details or the names of all the witnesses who have seen the occurrence. It is not necessary that elaboration of every fact that had happened should be given by the person who lodges the firs information report. It has to be kept in mind that PW 6 whose husband had been killed must have been extremely perturbed at the time of lodging of the FIR and in that state of mental agony she might not have been able to give details relating to the names of the witnesses who had seen the occurrence. The presence of all the eyewitnesses has been accepted by the courts below and I do not see any reason to take a different view, particularly this being a question of fact which was fully noticed by the two courts on fact and in spite of that the courts had believed the testimony of PWs 1 and 5. It is not the case of the appellant that the names of the accused persons were not mentioned in the FIR. It is also not the case of the appellant that the statements made under Section 161 CrPC of the aforesaid witnesses were not immediately recorded by the investigating agency. The plea raised is far-fetched and without any substance.” Thus, we do not find any substance in the argument raised by the learned Amicus Curiae. 13. It was further contended by the learned Amicus Curiae that the F.I.R. did not contain the fact that the accused/appellant had given the fatal blows upon the person of the deceased and therein he committed the offence of murder of the deceased. Learned G.A. refuted the contention and contended that the F.I.R. was lodged on the basis of the version narrated by the accused/appellant to the father of the deceased. Since the accused/appellant was the real maternal uncle of the deceased Seema and he could not prima facie dis-believed the version given by him to the father of the deceased Seema. After going through the submission of the parties and perusal of the record, it is evident from the record that the deceased Seema was niece of the accused/appellant. The informant Om Prakash Dua PW5 was not present at the scene of the occurrence. Whatever fact the informant Om Prakash Dua PW5 has gathered from the accused/appellant, he lodged in the first information report immediately after the incident. The prosecution has also adduced the evidence that the deceased Seema was lying on the bed and the accused/appellant was sitting on the chair in one room. Both the sisters, i.e., Rashmi Dua PW1 and Poonam PW2 of the deceased Seema were in the varanda. Both the witnesses heard the cry of the deceased Seema and when they went to help her they found that the doors were bolted from inside. As we have pointed out earlier that the F.I.R. is not the encyclopedia in which all the details should be mentioned. In the case in hand, the incident took place at about 10:00 a.m. and the report was lodged at 10:35 a.m. The distance between the police station and the place of occurrence had been shown in the F.I.R. as three kilometers. When the incident occurred, father of the deceased Seema was called by Rajendra Prasad from school. The informant Om Prakash Dua reached at the spot and thereafter he went to the police station. Thus there was prompt F.I.R. in the facts and circumstances of the case. The informant Om Prakash Dua PW5 had given natural version of the occurrence. It is also pertinent to mention here that I.O. has also recorded the statement of Rashmi Dua PW1 and Poonam PW2 on the same day after few hours of the incident. Thus the prompt F.I.R. and the statements recorded u/s 161 of Cr.P.C. of the eyewitnesses immediately after the incident also inspires confidence that it was not the outcome of due consultation or deliberation. Rashmi Dua PW1 and Poonam PW2 had corroborated the prosecution story. Thus, we do not find any force in the contention raised by the learned Amicus Curiae. 14. Learned Amicus Curiae further contended that there are certain contradictions in the testimony of the witnesses, i.e., Rashmi Dua PW1, Poonam PW2 and Om Prakash Dua PW5 recorded u/s 161 of the Cr.P.C. by the Investigation Officer and the evidence of the witnesses before the trial court. Learned G.A. refuted the contention and contended that minor discrepancies are bound to creep in the