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 Appeal No. 86 of 2002 Date of decision : -29th February, 2008 A.F.R. (Approved for Reporting) Not approved for reporting Date:-29.02.2008 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 Appeal no. 86 of 2002 Nari Chand s/o Jagat Chand R/o Vill-Vanbhuria, Ps.-Khatima, District –Udham Singh Nagar ---Applicant Versus 1. State of Uttaranchal -----Respondent Mr. S.K. Mandal, Advocate for the appellant. Mr. Harish Chadnra Pujari, Addl. Govrnment Advocate for the respondent. Hon’ble J.C.S. Rawat, J. The present appeal has been preferred against the judgment and order dated 05.4.2002 passed by the then First Addl. Sessions Judge, Udham Singh Nagar in ST No. 106 of 2000, State Vs. Narichand whereby the learned Sessions Judge has convicted the appellant under Section 307 I.P.C. and sentenced the appellant to serve rigorous imprisonment of seven years and a fine of rupees five thousand. In case the fine was not deposited by the appellant, he would have to further undergo for a period of six months in view of non- payment of the fine. 2. The brief facts for the disposal of the appeal are that the complainant Chetram was residing in village Pahenia and he had a neighbor named Bhanuchand who was residing adjacent to the house of the complainant. The appellant Narichand had also been residing with Bhanuchand for the last 5 to 6 years. Narichand used to visit the house of the complainant Chetram. On 10.07.1999 at about 4pm., Chetram and his son Rameshchand were going to make purchase from the nearby shop. The appellant met them on the way any and started hurling abuses upon Rameshchand, the son of Chetram. When the scuffle was going on, the appellant Narichand took out a knife from his pocket and assaulted Rameshchand on different parts of the body with the intention to kill him. Consequently, he sustained multiple injuries on his person and fell down on the ground. The father of injured Rameshchand tried to intervene in the matter and at the same time, he shouted for help. Baljit Singh PW4 and Bhuwanchand reached at the spot and tried to catch hold of the appellant Narichand but they failed to do so. Immediately, thereafter, Rameshchand was taken to the Civil Hospital, Khatima where he was medically examined by the doctor. Looking to his serious condition, he was referred to Pilibhit Hospital on the same day. After admitting in the Pilibhit Hospital, the doctors advised him to take to some other place for better treatment. Thereafter, the complainant took his son Rameshchand to Khatima in a Nursing Home and after admitting him in the Nursing Home, he went to the police station on 11.7.1999 and lodged a report at about 09.30 am in the police station. Thereafter, the matter was investigated and a chargesheet was submitted before the court concerned. 3. The accused was charged under Section 307 I.P.C. He denied the charge leveled against him and claimed for trial. 4. The prosecution in support of its case adduced the evidence of Chetram PW1. He is the father of the injured Rameshchand who was accompanying the injured to the shop at the time of the incident. He is the eyewitness of the incident. Balji Singh PW4 is also the eyewitness of the incident. At the time of incident, he was working in the field. After hearing the shouting of Chetram PW1, he reached at the spot. Dr. D.S. Negi PW2 is the medical officer in Khatima on the relevant date. He medically examined the injured Rameshchand. Constable Balkrishna PW3 is a formal witness who has lodged the F.I.R. in the Police Station. B.R. Dewakar PW5 is the investigating Officer of this case. 5. The accused-appellant was examined u/s 313 Cr.P.C. and he has pleaded not guilty to the offence. He has further stated that he has been falsely implicated in this case. 6. The learned Addl. Sessions Judge, after appreciation of the evidence and hearing the parties convicted the appellant and sentenced him as indicated above. 7. I have heard the learned counsel for the parties and perused the record. 8. At the outset, it is to be mentioned here that it is not disputed that the injured sustained the injuries on 10.7.1999 at about 4 pm. It is not disputed that on the date of occurrence, the injured did not suffer any injury. According to Dr. D.S. Negi PW2, the following injuries were found on his person on 100.7.1999 as about 5.15Pm.:- (i) Stab wound 2 cm x 0.5 cm on left side of the back about 5 cm below inferior end of scapula, muscle deep, fresh bleeding present, margin inverted and clear cut. (ii) Stab wound 3 cm x 0.5 cm size x (depth could not be ascertained) on left side of back 5 cm above left iliac crest, margin clear cut, fresh bleeding present. (iii) Incised wound 5 cm x ½ cm x muscle deep with clear cut margin over the left buttock, fresh bleeding present. (iv) Incised would 4 cm x ½ cm x muscle deep over back left thigh in middle portion, fresh bleeding present. (v) Incised would 4 cm x ½ cm x muscle deep over back of lower 1/3rd of left upper arm, fresh bleeding is present. (vi) Incised would 4 cm x ½ cm x bone deep on lateral aspect of the left writ joint, fresh bleeding present. (vii) Stab wound 1 cm x ½ cm (depth could not be ascertained), margins inverted clear cut from right side of the back about 5 cm below inferior angle of right scapula. 9. In the opinion of Dr. D.S. Negi PW2, the injuries could have been caused on 10.7.1999 at about 4:00 pm. It is opined that the injuries would have been caused by sharp edged weapon like knife. Apart from this, Chetram PW1 and Baljit Singh PW4 have proved that the injured sustained injuries on the relevant time and date of the incident. 10. Now, I have to examine as to whether the appellant was responsible for causing these injuries on the person of RAmeshchand. I would like to deal with the evidence of the incident. The prosecution in support of its case examined Chetram PW1 who had categorically stated in his evidence that on 10.7.1999 when he alongwith his son was going to a shop to purchase certain articles, the appellant met them on the way. The appellant started hurling abuses upon the injured Rameshchand. Such an act of appellant was protested by the injured, upon this, the appellant took out a knife from his pocket and stabbed the injured on differed parts of the body. Hearing the noise raised by the father of the injured, Baljit Singh and Bhuwanchand reached at the spot who were working in their fields nearby the place of occurrence. They tried to catch hold of the appellant but he could not be apprehended by them. Thereafter, the injured was taken to the hospital. Baljit Singh PW4 has also narrated the entire incident as stated by Chetram PW1. The evidence of Baljit Singh PW4 corroborates the evidence of Chetram PW1. He is also the eyewitness of the incident. The prosecution ash established the incident by adducing the evidence of PW1 and PW4. 11. The learned counsel for the appellant contended that the there is an inordinate delay in recording the F.I.R. It was contended that the incident took place on 10.7.1999 at about 4 pm. And the report of the incident was lodged in the next morning on 11.7.1999 at about 09.30 am. Apparently F.I.R. wa lodged after 19 hours of the incident. The learned Addl. Government Advocate refuted the contention and contended that it is true that the report was lodged on the next day but the delay has been properly explained in the F.I.R. as well as in the evidence of PW1. The perusal of the record reveals that while recording the F.I.R, the informant Chetram PW1 has categorically mentioned in the F.I.R that immediately after the incident, Chetram PW1 took Rameshchand to Khatima Hospital from where his son was referred immediately to Pilibhit Hospital. As the condition of his son Rameshchand was critical, so he could not record the F.I.R. immediately after the incident on the same day. When Chetram PW1 entered into the witness box, he has explained the delay in his evidence. He has stated in his evidence that the injured Rameshchand was immediately taken to Khatima Hospital. It is pertinent to mention here that Khatima comes in district Udham Singh Nagar, Uttarakhand and Pilibhit is a district headquarter of district Pilibhit in U.P. Seeing his critical condition, he was taken to Pilibhit Hospital where it was advised to take him to some other place for better treatment. On the next day, he was taken to Guru Ram Das Hospital at Khatima where he remained admitted for three months. Immediately after returing from Pilibhit and admitting him to Guru rAm Das Hospital at Khatima, the report was lodged in the police station. It is also in the evidence that he was admitted for three months in Guru Ram as Hospital and thereafter he was referred to Lucknow Medical College where he remained admitted for four months. Ultimately, the doctors of the Lucknow Hospital said to Chetram-PW1 that the injured would not be cured so he was taken back to his home where he died after a week. It is a common phenomena that when a person is injured, the kith and kin of the injured would like to provide the best treatment at the first hand but would not think of any other things except to save the life of the injured. In this case also the same recourse has been taken by the father of the injured. It is not the case that the kith and kin of the injured are educated persons, contra to, witnesses are rustic villagers. Thus, in these circumstances, the delay in recording the F.I.R. has been properly explained by the prosecution. There is no force in the contention of the learned counsel for the appellant. 12. The learned counsel for the appellant further contended that there is a delay of three months in recording the statement under Section 161 Cr.P.C. It was further contended that the prosecution has not given any satisfactory explanation in recording the statement under Section 161. The learned Addl. Government Advocate refuted the contention. It is true that the statement of the eyewitnesses were recorded by an inordinate delay of three months in this case. The Hon’ble Apex Court in the cases of DR. Krishna Pal Vs. State of UP 1996 SCC (Cri) P/249, Ramesh Vs. State of MP 2000 SCC (cri) P/2006, Ambika Prasad and another Vs. State 2000 (Vol 2) SCC P /646 and State of UP Vs. Satish 2005 SCC (Cri) P/642, has held that delayed examination of certain witnesses would not render as fatal to the prosecution. It was further observed that if the explanation offered for delayed examination is plausible and acceptable, the court should accept it and there is no reason to interfere with the conclusion drawn thereform. It has further been held that the explanation offered by the IO on being questioned on the aspect of delayed examination by the accused ahs to be tested by the court on the touchstone of the credibility. Thus, it is apparent that if the explanation has been given that would be judged according to the credibility of the evidence. The Investigating officer was interrogated on this point. He has given the details of visiting the house of Chetram PW1, the father of the injured Rameshchand and Baljit Singh. It is transpired from his evidence that when he visited the house of the injured, the father of the injured was not at his residence. The Investigating Officer was told that Chetram PW1 had gone with his injured son either at Bareily or at Lucknow. If the son of the witness was in a precarious condition and ultimately died, it is natural that Chetram PW1, father of the injured would not be at his residence. The I.O. has categorically stated that Chetram PW1 witness was also not available at his residence. It is also pertinent to mention here that the prosecution has sufficiently explained the delay in recording the statement under Section 161 Cr.P.C. of both the witnesses. 13. The learned counsel for the appellant further contended that in the facts and circumstances of the case, no offence under Section 307 I.P.C. is made out against the appellant. It was further contended that at the most, even if, the prosecution evidence is found credible and cogent against the appellant, the offence punishable under Section 324 I.P.C. is only made out against him. The learned Addl. Government Advocate refuted the contention and supported the judgment of the trial court. To constitute an offence under section 307 I.P.C., two ingredients of the offence must be present (a) an intention of or knowledge relating to commission of murder; and (b) the doing of an act towards it. For the purpose of attracting Section 307 I.P.C., what is material is the intention or the knowledge and not the consequence of the actual act done for the purpose of carrying out the intention. This Section clearly contemplates an act which is done with intended consequence on account of intervening circumstances. The intention or the knowledge of the accused must be such as is necessary to constitute murder, In the absence of intention or knowledge which is necessary ingredient of Section 307 I.P.C. there can be no offence of attempt to murder. Intent which is the state of mind cannot be proved by precise or direct evidence as a fact it can only be detected or inferred from other factors. The intention to cause death can be gathered generally from a combination of a few or several of the followings, among other, circumstances: (i) nature of the weapon used; (ii) whether the weapon was carried to by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) whether there was any premeditation; (v) whether there was any prior enmity; (vi) or whether the deceased was a stranger; (vii) or has acted in a cruel and unusual manner; (ix) or whether the accused dealt a single blow or several blows. In the light of the above circumstances, I would like to examine the evidence adduced by the prosecution in this case. As indicated in the preceding paragraph of my judgment that injuries nos. 1, 2 & 7 were caused on vital part of the body and these injuries were caused by applying force. The perusal of the medical report shows that force was applied in injuries nos. 2 and 7. It is also apparent from the evidence that the knife was used in the said assault which is also a dangerous weapon. It is also pertinent to mention here that when the incident took place, the appellant took out the knife from his pocket and started stabbing the injured Rameshchand. Thus, it is not the case that the quarrel took place and the appellant picked up the weapon from the spot. The father of the injured Rameshchand was also present at the place of occurrence and he immediately tried to intervene in the melee. The witnesses Bhuwanchan and Baljit Singh reached at the spot and seeing them, the appellant fled away from the spot. Thus, the intervening circumstances could not bring about the intended consequences of the assault. It is not the case of the appellant that he only caused a simple blow and flew away from the spot without intervention of the witnesses. The appellant had inflicted as far as seven injuries on the person of the injured and the intervening circumstances stopped him to make further assault upon the injured Rameshchand. As pointed out earlier that after 4-6 months, the injured died. It is also in the evidence that the injured remained admitted in the hospitals during that period. After considering the nature of the weapon used; the place where the injuries were inflicted; the nature of the injuries; keeping the knife at his pocket at the time of the incident; and the circumstances in which the injuries were cause, I am of the view that the prosecution has established that there was an intention to kill Rameshchand. Thus, the appellant is liable to be convicted under Section 307 I.P.C. and not under Section 324 I.P.C. The contention of the learned counsel for the appellant has no force. 14. The learned counsel for the appellant further contended that the medical report has not been properly proved by Dr. D.S. Negi PW2. The learned Addl. Government Advocate refuted the contention. The Investigating Officer has categorically stated that he obtained the medical report from the hospital during the investigation. It is in the evidence of Dr. D.S. Negi PW2 that the copy of the medical report was prepared by the mechanical process and it contained his signature. The doctor has proved the injuries in his medical report and his evidence further corroborates the factum of the incident. 15. After considering the evidence in toto, the trial court ha minutely scrutinized the statement of all the witnesses and found the prosecution case implicitly truthful and reliable. Though, the presence of Baljit Singh PW2, an eyewitness was attempted to be shown as doubtful but I do not find any reason to accept the said plea. His presence at the place of occurrence was successfully explained, hence his evidence cannot be thrown out as unreliable or tainted. I do not find any infirmity in the findings recorded by the trial court. With the assistance of the leaned counsel for the parties, I have gone through the evidence adduced. On independent appreciation, I find that the evidence of eyewitnesses is consistent and reliable. The manner of details described by the prosecution witnesses regarding the incident have been fully corroborated by the medical evidence of Dr. D.S. Negi PW2. It is also pertinent to mention that the witnesses and relatives would not like to falsely implicate those persons who had not caused injuries to the injured person instead of the real culprits. 16. In view of the foregoing discussion, I hold that the prosecution has established the guilt, beyond reasonable doubt, against the appellant. I find that the learned trial court has rightly convicted and sentence the appellant. Therefore, I am completely in agreement with the finds recorded by the trial court and no interference is required in this case. 17. Hence, the appeal is dismissed and the order of conviction and sentence passed by the trial court against the appellants is confirmed. 18. Let the lower court record be sent back to the court concerned for compliance. Compliance report be submitted within three months. (J.C.S. Rawat, J.) Dated 29th February, 2008 Shiv/V.K.