IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 931/2001 (Old No. 883/1999) Ramphal and another …………… Appellants. Versus State …………………….Respondent. Smt. Pushpa Joshi, Advocate for appellants. Mr. Amit Bhatt, learned A.G.A. for the State. Dated: March 18 ,2010. Coram: Hon’ble B.C. Kandpal, J. Hon’ble Nirmal Yadav, J. [Per: Hon’ble B.C. Kandpal, J.] This appeal has been preferred against the judgment and order dated 31-3-1999, passed by 3rd Additional Sessions Judge, Nainital, in S.T. No. 369/1997, whereby the accused/appellants Ramphal and Dharmendra have been convicted for an offence U/S 302/34 I.P.C. and sentenced to undergo imprisonment for life. 2- The prosecution case, in short, is that a marpit case between the complainant side and the accused/appellants, Ramphal and Dharmendra, is pending in the court and due to this reason accused/appellants were having grudge with the complainant. On 7-1-1997, at about 8.30 P.M., when Ram Singh, father of complainant Virendra Kumar, after finishing his natural call, was washing his face at the water tape near Railway Gate, complainant’s mother Harpyari, complainant and his brother Prem Kishore were also going to the water tape to fetch the water, accused Ramphal 2 asked his companion Dharmendra, what are you looking, we should take revenge from Ram Singh. At this Dharmendra threw down Ram Singh and Ramphal gave three to four axe-blows on the neck of Ram Singh, due to which the neck of Ram Singh was cut-down and he died at the spot. On raising alarm by the complainant and his mother and brother, accused persons fled away from the place of occurrence. The written report, Ext. Ka.1, was lodged by Virendra Kumar at P.S. Kashipur on the day of incident. On the basis of written report, chick F.I.R., Ext. Ka.3 was prepared at the police station, and a case crime No. 11/1997, U/S 302 I.P.C. was registered against the accused Ramphal and Dharmendra, the carbon copy of which is Ext. Ka.4. 3- The investigation of the case was entrusted to Jaipal Singh (P.W.6), Inspector Incharge, P.S. Kashipur. He visited the place of occurrence and prepared site-plan, Ext. Ka.5, took in possession the simple and blood-stained earth from the place of occurrence and prepared recovery memos Ext. Ka.6 and Ka.7 respectively. Sub-Inspector, D.K. Tiwari conducted the inquest on the dead body of the deceased. He prepared the inquest report, Ext. Ka.11, sealed the dead body, prepared the relevant documents pertaining to post mortem, Ext. Ka.12 to Ka.16, and sent the dead body for post mortem. 4- Dr. Shamim Ahmad, Government Hospital Kashipur, conducted the post mortem on the dead body of the deceased Ram Singh on 7.1.1997 at 4.30 P.M. The doctor found that rigor mortis was present in upper and lower limbs. There was no sign of decomposition. Eyes and mouth were partly 3 open. He noted the following ante-mortem injuries on the person of the deceased:- 1- Incised wound 12cm x8cmx underlying soft tissue deep on the root of left side neck. 2- Incised wound 2.5cm x 0.5cm x muscle deep on the left side chin. In the opinion of the doctor the cause of death was shock and haemorrhage, as a result of ante-mortem injuries. 5- The I.O. arrested the accused Ramphal on 8-1- 1997 and on his pointing out, got recovered the axe (exhibit-1) from the bushes near Gopipura Railway Crossing. Recovery memo, Ext. Ka.8 was prepared. On 18-1-1997 the I.O. arrested another accused Dharmendra and after completion of investigation submitted charge sheet, Ext. Ka.9 against the accused persons. 6- The Additional C.J.M. Kashipur, vide his order dated 13-8-1997, committed the case to the court of Sessions for trial. 7- The learned Additional Sessions framed charge U/S 302 read with Section 34 I.P.C. against the accused persons, who pleaded not guilty to the charge and claimed their trial. 8- The prosecution in support of its case examined P.W.1, Virendra Kumar, P.W.2, Prem Kishore, P.W.3, Harpyari, P.W.4, Asha Ram, P.W.5, Dr. Shamim Ahmad, P.W.6, Jaipal Singh, and P.W.7, D.K. Tiwari. 4 9- The accused in their statement U/S 313 Cr.P.C. denied the prosecution case and alleged that they have been falsely implicated due to enmity. No evidence in defence has been adduced. 10- The learned Sessions Judge, after hearing learned counsel for parties and considering the entire evidence on record, found the accused/appellants guilty for an offence U/S 302/34 I.P.C. and sentenced both of them to undergo life imprisonment. 11- Feeling aggrieved the accused have come up in appeal. 12- We have heard the learned counsel for the parties and perused the record. 13- Learned counsel for the accused/appellants has stated that the eyewitnesses, examined in the case are closely related to the deceased, hence the evidence of partisan and interested witnesses should not have been relied upon by the trial court. 14- It is well settled that evidence of a witness cannot be discarded merely on the ground that he is either partisan or interested or closely related to the deceased, if it is otherwise found to be trustworthy and credible. We have considered the evidence of eyewitnesses in the case and we find that their evidence is trustworthy and credible. 15- In the instant case prosecution has produced three eyewitnesses of the occurrence- P.W.1, Virendra Kumar, P.W.2, Prem Kishore and P.W.3, 5 Smt. Harpyari, who are sons and widow of the deceased. P.W.1, Virendra Kumar, has lodged the written report of the incident at the police station. This witness has deposed that on 7.1.1997 at about 8.30 A.M. his father Ram Singh after finishing his natural call had come to water tape for washing his face and at that time incident took place. He has further deposed that he, his mother Harpyari, and his younger brother, Prem Kishore were also going to fetch the water from the water tape and then they saw that accused Ramphal asked accused Dharmendra what are you looking, today we have to take revenge from Ram Singh. At this accused Dharmendra threw-down his father Ram Singh and accused Ramphal gave 3-4 axe-blows on the neck of Ram Singh, due to which the neck of Ram Singh was cut-down and he died at the spot. On raising alarm by them accused fled away from the place of occurrence. He further deposed that he has lodged the written report, Ext. Ka.1, at the police station Kashipur. His further deposition is that a marpit case was going one between them and the accused and due to this reason accused bore grudge against them. This witness has been cross-examined at a great length from defence side but nothing material has come out from it which may render his testimony untrustworthy. We find that the deposition of P.W.1, Virendra Kumar is natural and trustworthy. 16- P.W.2, Prem Kishore is also the eyewitness of the occurrence. This witness has fully supported the deposition of P.W.1. He has deposed that on 7.1.1997 at about 8.30A.M. his father Ram Singh after finishing natural call was washing his face on 6 the water-tape at the Railway Gate. Accused persons were standing there. Accused Ramphal asked accused Dharmendra to take revenge from Ram Singh and accused Dharmendra threw-down Ram Singh and accused Ramphal gave 3-4 axe- blows on his neck, due to which, his neck had cut- down and he died at the spot. This witness also deposed that on raising alarm by them accused ran away towards Railway Gate. He also deposed the factum of enmity between them and the accused. The another eyewitness of the occurrence Smt. Harpyari, P.W.3, also fully supported the statements of P.W.1, Virendra Kumar and P.W.2, Prem Kishore. She has also deposed that accused Dharmendra had thrown down her husband Ram Singh on the ground and accused Ramphal gave axe-blows on the neck of the deceased due to which the deceased died at the spot. In her cross- examination this witness has admitted the enmity between the parties due to pendency of a marpit case in court. The defence has cross-examined all the three eyewitnesses on different points but they have given consistent statements and have not contradicted on any point. Therefore, after a careful scrutiny of the statements of all these witnesses, we find that these are natural witnesses and their testimony is trustworthy. The learned trial court has rightly recorded the conviction of accused/appellants on the deposition of these witnesses. 17- The another important feature of the prosecution case is that prompt F.I.R. of the occurrence has been lodged with the police. The occurrence had taken place on 7-1-1997 at 7 8.30A.M. and the F.I.R. Ext. Ka.1 has been lodged at the police station same day at 11.40 A.M. P.W.1, Virendra Kumar, one of the eyewitness, has himself scribed the written report and lodged the same at the police station. He has mentioned all the relevant factors of the incident in the F.I.R. Therefore we find that prompt lodging of F.I.R. rules out the possibility of false implication of accused. 18- Learned defence counsel also raised the submission that there was enmity between the parties in respect of pendency of a marpit case in the court of law and there was strong motive with the complainant side to falsely implicate the accused/appellants in the case. 19- Again this submission of learned counsel for accused/appellants is not tenable, firstly on the ground that no one would like to leave the real culprit, who is responsible for commission of murder of a father or husband and would falsely implicate the innocent person in the crime and secondly it is admitted to the parties that the parties were not on good terms as a criminal case of marpit was going on between them and the accused/appellants had strong motive to eliminate the deceased from their way. Enmity is like double- edged weapon which cuts at its both ends. It might be reason for false implication as well as for commission of crime and in the instant case, in all probabilities, we find that there was no reason for the complainant to falsely implicate the accused/appellants and to let-out the real culprit, rather the accused/appellants had strong motive to 8 commit the crime and due to the prior enmity they had committed the murder of deceased Ram Singh. 20- Learned counsel for the accused/appellants also submitted that the medical evidence is not consistent to the ocular version. According to her all the three eyewitnesses have deposed that axe- bows were given by the accused on the neck of deceased, but P.W.5, Dr. Shamim Ahmad in his cross examination has stated that injuries to the deceased could not be caused by an axe and the same could be caused by a sword or a knife. Therefore, the learned counsel has urged that the prosecution has cooked up a false case and for this reason the accused/appellants are entitled for an acquittal. 21- The above submission is also of no help to the appellants. The Hon’ble Apex Court in a case of Ram Dev and another v. State of U.P., reported in 1995 Supp(1) Supreme Court Cases 547, has held that medical opinion is only opinion evidence and it is not decisive. In paragraph-4 of the above cited case the Hon’ble Apex Court has held as under:- “It is well settled that medical evidence is only opinion evidence. It is hardly decisive and is often inconclusive. Since the oral testimony of P.W.1 Ram Saran and P.W.2 Ram Bharose suffer from no infirmity whatsoever, the vague opinion given by Dr. Gupta cannot in any way affect the value of oral testimony and cannot affect the credibility of the prosecution case at all.” 22- It has also been observed by Hon’ble Supreme Court in a catena of judgments that when there is a 9 contradiction between ocular version and medical evidence then ocular version would prevail, when the ocular version appears to be trustworthy and reliable. In the instant case there is no occasion to record a finding that the ocular version cannot be said to be untrustworthy and unreliable. The presence of the witnesses at the scene of occurrence appears to be quite natural. Although all the eyewitnesses are family members of the deceased but this factor only cannot said to be sufficient for discarding their testimony. Their credibility appears to be quite safe and trustworthy. In case if any suspicion is created in the medical evidence by the doctor with regard to the weapon used in the commission of crime, then in the light of the truthful, reliable and trustworthy testimony of eyewitnesses, the opinion of the doctor cannot be said to be decisive and vague opinion of the doctor, therefore, cannot affect the value and credibility of the prosecution case. The measurement of the injuries, which is 12cm x 8cm could be caused by the axe and not by the sword or the knife. Therefore, to our mind the opinion of the doctor in the light of the direct evidence cannot be taken into consideration and the same is to be rejected. We are of the view that it would be quite safe to rely on the direct testimony of trustworthy eyewitnesses, whose presence at the scene of the occurrence cannot be said to be doubtful in any case. 23- The time of the occurrence also appears to be true as the stomach of the deceased was found empty. It is the case of prosecution that deceased after finishing his natural call had gone to water-tape for washing his face and at that time the 10 incident had taken place in the morning. The stomach of deceased being empty clearly indicates that the incident had taken place at the time as has been stated by the prosecution witnesses. We do not find any reason to discard the testimony of eyewitnesses on the ground that the opinion of the doctor has created any suspicion in the case. 24- The prosecution case further finds support from the chemical examiner’s report which is Ext. Ka. 17 on record. The chemical examiner had found human blood on the blood-stained earth taken into possession by the I.O. from the place of occurrence and on axe (exhibit-1) which was recovered at the instance of accused Ramphal. 25- In view of above discussion, we are of the considered view that the prosecution has been successful in proving its case against the accused/appellants. The learned trial court has rightly convicted and sentenced the accused/appellants for an offence U/S 302/34 I.P.C. and we do not see any reason for interference in it. 26- The appeal lacks merit and is liable to be dismissed. 27- Accordingly, the appeal is dismissed. The conviction and sentence of accused/appellants U/S 302/34 I.P.C. recorded by the trial court, is upheld. 28- Accused/appellants are on bail. Their bail bonds are cancelled and sureties discharged. They 11 be taken into custody forthwith so as to serve out the sentence passed against them. 29- Let the record be transmitted to the trial court for compliance, to be reported to this court, within two months. (Nirmal Yadav, J.) (B.C. Kandpal, J.) ISB