HIGH COURT OF UTTRANCHAL AT NAINITAL. Reserved Criminal Appeal No. 482 of 2001 (Old no. 872 of 1995) 1.Deep Singh S/o Daulat Singh, 2.Ganesh Jaiswal S/o Babu Lal, 3.Raju S/o Gopal Singh, 4.Ram Singh @ Ramu S/o Sri Nandan Singh, All R/o Tanakpur Road Jawahar Nagar Colony, P.S. Haldwani, Distt. Nainital. ….Appellants. Vs. State of U.P.. …..Opp. Party. Sri J.C. Joshi, learned Sr. Counsel assisted by Sri Pankaj Purohit, learned counsel for the appellant nos 1 &2. Sri Rajendra Kotiyal, learned counsel for the appellant nos. 3 & 4, Sri A. Rab, learned Addl. G.A. for the State. Coram:- Hon’ ble M.M. Ghildiyal, J. Hon’ ble B.C. Kandpal, J. Dated: Nainital August 12, 2004 (Delivered by Hon. B.C. Kandpal, J.) Appellants Deep Singh, Ganesh Jaiswal, Raju and Ram Singh @ Ramu have preferred this appeal against the judgment and order dated 19.05.1995 passed by IV Addl. District & Sessions Judge, Nainital convicting them u/s 302/34 IPC and sentencing imprisonment for life as well as fine of Rs. 1,000/- each and in default of payment further rigorous imprisonment for a period of three months. The prosecution case, in brief, is that on 21st May 1989 at about 9:00 p.m. the deceased Nazakat Ali was going at Tanakpur Road Tiraha and at that place the accused/appellants (hereinafter called as appellants) met the deceased. The assailants were four in number and appellants Deep Singh & Ganesh were having knives in their hands while appellants Raju and Ram Singh were having iron rod and stick 2 respectively in their hands. The appellants said the deceased that he bet and insulted appellant Ganesh hence today they will take revenge of the insult of Ganesh. The appellants thereafter started assaulting the deceased with their respective weapons. Deceased Nazakat, after sustaining injuries on his person fell on the road. The complainant Fakharuddin (PW1) was also present at the spot alongwith Aatiq (PW3), an eye-witness of the occurrence. Abdul Razaq (PW5) also reached on the spot at the time of the occurrence. All these persons attempted to apprehend the appellants but they made their escape good and ran towards the factory campus. An electric pole was present at the place of the occurrence and these witnesses saw the entire incident in the electric light. Nazakat was taken to the hospital by Fakharuddin and other witnesses in precarious condition but after reaching the hospital, Nazakat succumbed to the injuries. Fakharuddin got the first information report scribed by Aatiq (PW3) and thereafter took the written report to the police station in order to lodge the same. The police registered the case on 21.05.1989 at 9:50 p.m. u/s 302 IPC on the basis of the written report. The Sub Inspector was deputed to prepare the inquest on the dead body of Nazakat who accordingly prepared the inquest report. The postmortem on the dead body of the deceased Nazakat was conducted on 22.05.1989 at 11:00 a.m. by Dr. B.D. Nariyal who found following antemortem injuries on the person of the deceased:- 1. An oval stab wound 11/2 cm. x ½ cm., chest deep. Left side chest 8cm. below and medial to left nipple over 5th & 6th inter costal oozing of blood present. 3 2. Stabbed wound 1cm.x 11/2 cm. front of the abdomen 21 cm. below the right nipple 5cm. to cavity, upwardly direction oval in shape. 3. Stabbed wound 2cm.x 1 11/2 cm. oval in shape. Inverted Irregular margins, 2cm. lateral injury no. 2 blood oozing. 4. Stabbed wound 2 ½ cm. x 2cm. cavity deep, 5cm. below to Injury no.3. 5. Abrasion 11/2 cm. x 1/2 cm. in the middle of back. 6.Abrasion ½ cm. x 1cm. over right buttock. The doctor opined that the cause of death was on account of shock and hemorrhage and the antemortem injuries on the vital organs. The Investigating Officer (PW7) Devendra Singh started investigation by preparing the site plan, thereafter the Investigating Officer arrested the appellants Deep Singh and Raju and on the pointing out of appellant Deep Singh the bloodstained knife used in the offence was recovered. The Investigating Officer also recorded the statements of the witnesses and after the investigation was over he submitted the charge sheet against the appellants u/s 302/34 IPC. After the submission of the charge sheet, the appellants were committed to the Court of Sessions. The appellants appeared before the Trial Court in order to face their trial. The Trial Court on 14.06.1990 framed charge u/s 302/34 IPC against all the appellants. The appellants denied of the charge leveled against them and clamed trial. The prosecution, in order to support its case, produced PW1 Fakharuddin (informant/eye-witness), PW2 Shahid Ali, PW3 Aatiq (eye-witness/scribe of FIR), PW4 Dr. B.D. Nariyal (postmortem report), PW5 Abdul Razaq (eye-witness), PW6 Wakar Ali and Pw7 S.I. Devendra Singh (I.O.) 4 After the evidence of the prosecution as over, the statements of the appellants were recorded u/s 313 Cr. P.C. The appellants did not adduce any evidence in their defence. The learned Trial Court, after hearing learned counsel for the parties and having perused the evidence on record, came to the conclusion that the appellants were guilty for committing the offence u/s 302 read with Section 34 IPC. The Trial Court accordingly, convicted the appellants and sentenced them to undergo life imprisonment. The appellants were also sentenced to a fine for Rs. 1,000/- each and in default of payment of fine further rigors imprisonment of three months vide its judgment and order dated 19.05.1995. Feeling aggrieved by the aforesaid judgment and order, the appellants have preferred the appeal before the Allahabad High Court, which has been received by transfer for disposal after creation of State of Uttaranchal. We have heard learned counsel for the appellants as well as learned A.G.A. and perused the record. The First important point in this case is whether the First Information report is ante time as has been submitted by the learned Counsel for the defence. It is noteworthy to mention here that the incident took place on 21.05.1989 at 9:00 p.m. The place of occurrence is Tanakpur Tiraha within the jurisdiction of police station Haldwani. It has been averred in the First Information Report that on 21.05.1989 at 9.00 p.m. when the complainant Fakharuddin along with one other person Aatiq Shah reached at Tanakpur Tiraha then they saw that four persons who were neighbour of the complainant, namely, Deep Singh, Ganesh, Ram Singh and Raju were having some alteraction with Nazakat and they also attacked at Nazakat alongwith the respective weapons in their hands. As per the First Information Report accused/appellants (hereinafter called 5 as appellants) Deep Singh and Ganesh were having knives in their hands while Raju was having iron rod (Saryia) and Ram Singh was having stick (Danda) in his hand. Nazakat after sustaining injuries, fell down on the earth. One other person Abdul Razaq also reached at the spot. When the complainant and other persons wanted to apprehend the accused persons, they made their escape good. The First Information Report of this incident was lodged by Fakharuddin at Police Station at 9.50 p.m. It has been stated by the complainant Faqurdeen PW-1 in his deposition that after the incident, he took Nazakat to the Hospital and as soon as they reached Hospital Nazakat succumbed to injury. The complainant thereafter got the FIR scribed by one Aatiq Shah in the Hospital and then took that written report to the Police Station in order to lodge the same against the appellants. The learned counsel for the defence has argued that it was not possible to lodge the First Information Report at 9.50 p.m., in case, if the incident had actually taken place at 9.00 p.m. because writhing a period of only 50 minutes the complainant could not reach the Hospital and thereafter could not get the written report scribed and also could not lodge the same at Police Station at 9.50 p.m. Learned counsel for the appellants has also argued that absence of the names of the accused persons in the inquest report shows that when the inquest report was prepared then by that time the First Information report was not in existence at the Police Station concerned. It has further been stated that the inquest report in this case has been prepared by S.I. Harpal Singh who is not investigating officer of this case and all these factors show that the First Information Report is certainly ante time. 6 We do not find any force in the argument advanced by the learned counsel for the appellants. It appears to be quite possible to have lodged the First Information report at 9.50 p.m. by the complainant. The distance of Police Station from the place of occurrence is only two furlong. Therefore, when the incidents had taken place at 9.00 p.m. then immediately thereafter the victim was taken to the Hospital and as soon as the victim reached the Hospital he was declared dead. Therefore, immediately thereafter, the complainant got the First Information Report scribed by Aatiq Shah and then took that report to the Police Station concerned in order to lodge the same at the police station and the report could be lodged at 9.50 p.m. Therefore, keeping in view the distance of the Police Station from the place of occurrence, it cannot be said in any manner that the First Information Report in this case creates any doubt with regard to the time of lodging the same. The next contention raised by the learned counsel for the appellants as to non-mentioning the names of the accused persons in the inquest report indicates that by the time the inquest could be started, the FIR was not in existence. Again, we do not find any force in this argument. Non- mentioning of the name of the accused persons in the inquest report cannot be a ground to discredit the prosecution case and it cannot be held that the First Information Report was not in existence when the inquest started. Further preparation of the inquest by some other Sub Inspector also does not indicate that the FIR was not in existence. The Hon’ble Supreme Court in a decision reported in 2003 SCC (Criminal) 382 Sahadevan Vs. State has clearly held that “any acts or omissions of the officers of the prosecution should not be taken in favor of the accused, for that would amount to giving 7 Premium for the wrongs of the prosecution designedly committed to favour the appellant.” The Hon’ble Apex Court in another decision reported in 2003 Supreme Court Cases (Criminal) 641 Amar Singh Vs Baldev Sing & Others has clearly held as under:- “The requirement of S. 174 is that the police officer shall record the apparent cause of death describing the wounds as may be found on the body and also the weapon or instrument by which they appear to have been inflicted an this has to be done in the presence of two or more respectable inhabitants of the neighborhood. The section does not contemplate that the manner in which the incident took place or the names of the accused should be mentioned in the inquest report. The basic purpose of holding an inquest is to report regarding the apparent cause of death, namely whether it is suicidal, homicidal, accidental or by some machinery etc. Therefore merely because the facts about the occurrence were not mentioned in the inquest report, it could not be said that at least by the time the report was prepared the investing officer was not sure of the facts of the case.” The Hon’ble Apex Court in the case cited above has also observed that the Court should be circumspect in evaluating the evidence but prosecution case cannot be rejected solely on the ground of defective investigation. The First Information Report in this case, is quite prompt and we do not find anything on the record which may suggest that some manipulations against the accused persons have been made by the Complainant. There is no iota of evidence available on the record which may reveal that the First Information Report is a result of after thought. The prosecution in this case has further established the motive available with the appellants since the very inception of First Information Report. The motive attributed to the appellants is quite clear as the averments made in the First Information Report show that the appellants wanted to take revenge against the insult caused to appellant-Ganesh by the 8 deceased Nazakat and on account of the same they assaulted Nazakat on the date of occurrence. The testimony of the eye witnesses produced by the prosecution in the present case also reveal that Fakharuddin PW-1 has stated in his deposition that all the appellants were saying to Nazakat at the time of occurrence that Nazakat bet and insulted Ganesh, therefore, they would take revenge of that insult and after saying this, they started assaulting Nazakat with their respective weapons. Aatiq Shah PW-3 is the witness of the fact as well as the scribe of the First Information Report. He has also stated that the appellants were saying to Nazakat that he had insulted one of their friends Ganesh, hence they would take revenge and after saying this they stared assaulting Nazakat, causing injuries on his person. Considering the statement of the eye witnesses produced by the prosecution before the trial court, we are of the considered view that there was strong motive available with the appellants to commit this crime as the appellants in fact wanted to take revenge with victim Nazakat against the insult of Ganesh (one of the appellants.) Another strong circumstance in this case is that all the witnesses produced by the prosecution do not have any sort of enmity with the appellants. These witnesses have totally stated the truth before the court and whatever they saw at the time of the occurrence, has been deposed by them. Learned counsel for the appellants have argued that the witnesses produced by the prosecution are either chance or the partition witnesses. It has been submitted that Fakharuddin being brother-in-law of deceased Nazakat, is highly interested witness while other two witnesses, namely, PW-3 Aatiq Shah and PW-5 Abdul Razaq are merely chance witnesses in this case and all the witnesses produced by the prosecution in fact 9 did not have any occasion to be present at the place of occurrence at the alleged time of the incident. We do not find any force in the argument advanced by learned counsel for the appellants. There is catena of decisions on this aspects that the testimony of the partition or interested witness cannot be discarded out rightly. It is true that the testimony of the interested or the partition witness is to be scrutinized carefully to find out whiter it is cogent and reliable. Relationship itself is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. In the instant case Fakharuddin PW-1 has deposed that he was coming from Gola River and going towards his house at the time of occurrence alongwith Aatiq PW-3, another eye witness of this case, who was a contractor of the sand pertaining to the area of Gola River. It appears to be quite reasonable and plausible that labour of Aatiq Shah must be working at Gola River and after supervising their work over there, he might be coming to his house at the time of occurrence. No suggestion has been put to these two witnesses Fakharuddin and Aatiq Shah by the defence as to whether Aatiq Shah was having any contract at Gola River or not. Therefore, the presence of these witnesses at 9 p.m. at the place of occurrence under the aforesaid circumstances, cannot be treated to be doubtful. Again perusal of the statement of Abdul Razaq PW-5 shows that on the date and at the time of the occurrence, he was going to his house from saw machine belonging to Chanda Miyan. Again no suggestion has been put to this witness as to whether he was present at saw machine belonging to Chanda 10 Miyan or not on the date of occurrence. Therefore, in case, if the statement of this witness is taken into account then it becomes quite clear that this witness was busy in cutting the woods at saw machine of Chanda Miyan on the date of occurrence and after getting the work finished from there he was going to his house at about 9 p.m. There is no evidence on record which may suggest that the way leads to the house of Fakharuddin PW-1, Aatiq Shah PW-3 and Abdul Razaq PW-5 does not pass through the place of occurrence. Therefore, the presence of these witnesses at the place and the time of the occurrence appear to be natural. As we have already indicated above that no enmity of the witnesses produced by the prosecution with the appellants, has been suggested by the defence. Therefore, there appears to be no reason for false implication of the appellants in the present case. The witnesses also do not have any reason to concoct the Cock bull story against the appellants. The record further shows that there was sufficient light available at the spot. The site plan shows that at the place of the occurrence there was an electric pole over the places shown with the letters “B” & “C”. The witnesses have also stated that they saw the incident in the mercury and electric light. At the place shown with the letter “C” a mercury light is there, while at the place shown with the letter “B”, bulb was lighting at the time of occurrence. Therefore, sufficient light was available for the witnesses to see the assailants at the time of the occurrence. Moreover as per statement of Fakharuddin PW-1, all the appellants were known to him prior to the date of the occurrence. This witness has stated that all the appellants are known to him and he knows their names and parentage also. Abdul Razaq PW-5 has also stated that he did not know the appellants personally but he had seen them off and on in 11 the area. This witness has also stated that at the place of occurrence mercury light and bulb was lighting and in this light he witnessed the incident. This witness has also stated in his deposition that appellants Deep Singh & Ganesh were having knives in their hands and he correctly recognized these persons in the court. This witness has further stated that appellant Raju was having an iron rod (saryia) in his hand and the appellant Ram Singh was also having a stick (danda) in his hand. This witness correctly identified these appellants also before the court. Nothing has come out in the cross examination of this witness, which may suggest that this witness is either telling lie or has any reason to falsely implicate the appellants in the present case. We, therefore, do not find any reason to discard the testimony of the witnesses about their presence at the place of occurrence when the incident took place. All the witnesses have categorically stated the manner in which the incident had taken place and their deposition further find corroboration with the medical version adduced by the prosecution. The prosecution has produced Dr. B.D. Nariyal PW-4, who conducted autopsy on the body of deceased Nazakat and this witness stated that the injuries no. 1, 2, 3, & 4 on the body of deceased being stab wounds, could be caused by the knife. The Doctor also opined the injury No.5 & 6 being abrasion on the back of the deceased could have been caused by iron rod and danda. The Doctor also opined that the death of the deceased could have been caused between 9 p.m. to 9.30 p.m. on 21.05.1989. The defence has not put any suggestion or any question to the Doctor which may suggest in any manner that the injuries could not have been caused by the respective weapons which the appellants were having in their hands at the time of 12 occurrence. Therefore, the manner of incidents as has been alleged by the prosecution witnesses in their deposition before the court, find full corroboration with the medical evidence adduced by the prosecution, and we do not find any infirmity in the evidence adduced by the prosecution in this regard. Therefore, it is established beyond reasonable doubt that on the date and the time of the occurrence, appellants Deep Singh & Ganesh caused injuries with their knives while appellant Raju & Ram Singh caused injuries with iron rod & danda on the person of Nazakat resulting his death, and all the appellants were having common intention to cause such bodily injuries as would likely to cause death of Nazakat in the normal or ordinary course. In view of the forgoing discussion we are of the opinion that the trial court has not committed any error in convicting and sentencing the appellant. Accordingly, the appeal fails and the same is dismissed. The record of the court below be returned immediately and learned C.J.M. is directed to adopt measures in order to take the appellants into custody, in order to serve out the sentence imposed against them by the trial court. (B.C. Kandpal, J.) (M.M. Ghildiyal, J.) August12, 2004 Aswal 13