Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 1652 of 2001 (Old No. 2017 of 1996) Mohan Lal & another … Appellants Vs State of U.P. (Now Uttarakhand) … Respondent Sri L.K. Tiwari, learned counsel for the appellants Sri S.S. Adhikari, learned A.G.A. for the State/respondent Coram: Hon’ble B.C. Kandpal,J. Hon’ble Nirmal Yadav, J. [(Judgment Per: B.C. Kandpal, J. (Oral)] This appeal, preferred u/s 374 of The Code of Criminal Procedure, 1973 (hereinafter referred to as the Cr.P.C.), is directed against the judgment and order dated 02.11.1996 passed by learned Additional Sessions Judge, Nainital in Sessions Trial No. 75 of 1989 whereby the accused/appellants have been convicted u/s 302 of Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced to undergo imprisonment for life. 2. Prosecution story, in brief, is that a written report by Sukumar Chandra Sah – father of the deceased Shyamal was lodged, in which, it was alleged that on 04.08.1988 at about 08:00 p.m. his son Shyamal was assaulted by the appellants, namely, Mohan Lal and Nand Ram as there was scuffle between them and thereafter, the accused persons assaulted the deceased – Shyamal with knife. Mohan Lal gave several knife blows with his knife causing fatal injuries to Shyamal whereas co-accused Nand Ram was catching 2 hold of him. Shyamal fell down on the earth due to said injuries. The complaint was standing on the road side in front of his house, which is just near the place of occurrence i.e. Bazar Tiraha in the township of Rudrapur. He heard the alarm of his son Shyamal and reached the spot and saw the appellants/assailants in the light of the electric bulb. Mohan Lal was having a knife in his hand and there was scuffle between Mohan Lal and Nand Ram with the deceased. This complainant reached the spot in his rescue while raising alarm for help. The witnesses Gurmail Singh, Sukhranjan Das, Amarkant also reached the spot but in the meantime both these assailants ran away from the spot after giving fatal injuries to the deceased Shyamal. It was also alleged that these assailants ran away from the spot and escaped in darkness. The deceased was taken to the hospital by Tarun Kumar, Samirdas but on reaching at hospital, Shyamal was declared dead by the doctor. The complainant, thereafter, went to the police station with the written report so prepared by Amarkant duly signed by him and the case was registered against the appellants on 04.08.1988 at 09:30 p.m. under Section 302 of I.P.C. 3. The investigation of the case was entrusted to Vishnu Chandra Gautam – Sub-Inspector (P.W.9). The dead body was sealed by the Investigating Officer and inquest report (Ext. Ka. 2) was prepared by him, who also prepared other necessary papers – police form No. 13 (Ext. Ka. 11), sketch of the dead body (Ext. Ka. 12), recovery memo of bulb rod (Ext. Ka. 2), recovery memo of knife (Ext. Ka. 3), recovery memo of blood stained soil (Ext. Ka. 5), chick FIR (Ext. Ka. 6), letter to the Chief Medical Officer (Ext. Ka. 9) requesting for postmortem examination of the dead body. 3 Dr. J.C. Pandey (P.W.6) conducted the postmortem examination of the body of the deceased on 05.08.1988 at 03:30 p.m. The said Medical Officer recorded the ante mortem injuries and opined in the autopsy report (Ext. Ka. 8) that the deceased died due to injuries resulting excess flow of blood from the body. The Investigating Officer also inspected the spot and prepared the site plan (Ext. Ka. –13). On completion of the investigation, the charge sheet (Ext. Ka. 14) was finally filed by Vishnu Chandra Gautam (P.W.9) against the accused/appellants. 4. The Magistrate, it appears on receipt of chargsheet after giving necessary copies to the accused, as required under Section 207 of Cr.P.C., committed the case to the court of Sessions, for trial. The learned Sessions Judge, after hearing the parties, framed charge of offence punishable under Section 302 of I.P.C. against the accused/appellants on 04.08.1989. The accused pleaded not guilty and claimed to be tried. 5. On this, prosecution got examined P.W. 1 Amarkant Sen – who scribed the written report (Ext. Ka. 1); P.W. 2 Pradeep Kumar - eyewitness; P.W. 3 Sukumar Chandra Sah – father of the deceased; P.W.4 Sukranjan Das; P.W.5 Ganga Singh – Head Constable who proved the chick report (Ext. Ka6); P.W.6 Dr. J.C. Pandey (who conducted the postmortem examination on the dead body of the deceased); P.W. 7 Gurjeet Singh; P.W. 8 Rajeev Kumar; P.W.9 Kiran Shankar (who proved the inquest report – Ext. Ka. 2) and P.W.10 Vishnu Chandra Gautam – Investigating Officer. 4 6. The oral and documentary evidence was put to the accused under Section 313 of Cr.P.C., in reply to which they told that the evidence adduced against them was false. However, no evidence in defence was adduced on behalf of the accused/appellants. 7. After hearing learned counsel for the parties and perusing the entire material available before it, the learned Additional Sessions Judge found accused/appellants guilty of charge for the offence punishable under Section 302 of I.P.C. vide judgment and order dated 02.11.1996 and sentenced them to undergo imprisonment for life. 8. Aggrieved by said judgment and order, passed by learned Additional Sessions Judge, this appeal was filed by the convicts/appellants before the Allahabad High Court. The appeal is received by transfer to this Court under Section 35 of the U.P. Re-organization Act, 2000, for its disposal. 9. Heard Sri L.K. Tiwari, learned counsel for the appellants, Sri S.S. Adhikari, learned A.G.A. for the State/respondent and perused the record. 10. Before further discussion, it is pertinent to mention here the ante mortem injuries found on the body of the deceased at the time of the postmortem examination, which was recorded by Dr. J.C. Pandey (P.W.6), who conducted the postmortem examination and prepared the autopsy report. The ante mortem injuries are being reproduced below:- 5 1. Punctured wound, 2.5cm X 2cm on the epijestrium 14cm above umbicum. 2. Punctured wound, 3cm X 1.5cm on right side chest 10 below right nipple. 3. Punctured wound 2cm X 1.5cm 3cm posterial to injury No. 3. 4. Punctured wound 2.5cm X 1.5cm on right side of back 10cm posterior to injury No. 3. 11. The doctor opined that the liver was punctured below injury Nos. 2, 3 and 4. The doctor deposed that above four punctured wounds were found in the chest and abdomen damaging the chest, ribs, walls, right side liver causing collapse of blood vessels might be as a result of blows given with a knife in the occurrence, which could have taken place on 04.08.1988 at 08:00 p.m. The Medical Officer opined that cause of death was due to said injuries resulting excess flow of blood from the body of the deceased. He also proved the postmortem report (Ext. Ka. 8). 12. Now, we come to the testimony of the eyewitnesses. Amarkant Sen (P.W.1) is the eyewitness of the occurrence. This witness has stated in his deposition that he had seen the appellants who were identified in the light of the electric bulbs standing at the place of occurrence and these accused assaulted the deceased. 13. Pradeep Kumar (P.W.2) is also the eyewitness, who was having a shop near the place of occurrence. This witness has also deposed that he had seen the assailants while causing fatal injuries to Shyamal in the light of the electric bulb, which was fitted in his shop at the time of 6 occurrence and light thereof was on at that time. The electric rod was also shown to the Investigating Officer by him and memo thereof was prepared which is recorded as Ext. Ka. 3. 14. Sukumar Chandra Sah (P.W.3) is the father of the deceases who also saw the occurrence. He reached at the spot in order to safeguard his son. He narrated all the facts so mentioned by him in his written report Ext. Ka. 1. This witness has also seen the assailants in the light of the electric bulb. 15. Sukranjan Das (P.W.4) has also supported the prosecution story to some extent giving circumstantial evidence. He reached the spot when the victim Shyamal was lying on the earth, who told that the fatal injuries were caused to him by the accused (present appellants). This witness had seen the occurrence in the light of electric bulb. A recovery memo of knife was also proved by this witness, which is Ext. Ka. 4 available on record. This witness further proved the specimen of the blood stained earth and plain earth taken by the Investigating Officer from the spot and which is. Ext. Ka. 5. This witness has also proved the inquest report and identified his signatures thereon. 16. Ganga Singh – Head Constable (P.W.5) has proved the chick F.I.R. (Ext. Ka. 6) and copy of G.D. (Ext. Ka. 7). Dr. J.C. Pandey (P.W.6) conducted the postmortem examination of the deceased and opined that the cause of death was due to injuries resulting excess flow of blood from the body. This witness proved the postmortem report (Ext. Ka. 8). 7 17. Gurmit Singh (P.W.7) has not supported the prosecution version and he was declared hostile by the prosecution. Rajiv Kumar (P.W.8) has stated that the electric pole and bulb, which were fitted nearby shop were seen by the Investigating Officer and memo thereof was prepared in his presence. Kiran Shankar (P.W.9) has proved the inquest report (Ext. Ka. 2). 18. Vishnu Chandra Gautam (P.W.10) – Sub- Inspector, who investigated the matter. This witness has stated that he investigated the matter on 04.08.1988. He inspected the spot and prepared the site plan (Ext. Ka. 13). The dead body of Shyamal was taken into custody and sent for autopsy of the deceased. He prepared the inquest report (Ext. Ka. 2). He has also stated that the accused Mohan Lal was arrested by him on 06.08.1988 and recovery of knife, which was used in commission of crime was recovered from the paddy field at the instance of accused and recovery memo was prepared which is Ext. Ka. 4. After completing the investigation of the case, he submitted the chargesheet against the accused/appellants before the court concerned. 19. Learned counsel for the appellants has submitted that the First Information Report is belated. He has submitted that the incident took place at about 08:00 p.m. and the report of the same was lodged at about 09:30 p.m. He has further submitted that the distance of police station is about 30-40 paces from the place of occurrence. Therefore, the time of lodging the First Information Report creates a doubt about the prosecution case. 8 20. We do not find any force in the submission advanced by learned counsel for the appellants. From the perusal of the record, it reveals that the First Information Report was lodged by Sukumar Chand (P.W.3) on the date of occurrence. It is apparent from the record that the First Information Report was lodged at 09:30 p.m. while the occurrence took place at about 08:00 p.m. on 04.08.1988 and the distance of the police station from the scene of occurrence is about 30-40 paces. The evidence available on record shows that the incident took place on 04.08.1988 at 08:00 p.m. Sukumar Chandra rushed to the direction and saw that accused/appellant Nand Ram was catching hold his son Shymal and the accused/appellant Mohan Lal giving blows of knife. There was sufficient light of the electric bulbs. The nearby shopkeepers Amarkant Sen (P.W.1), Pradeep Kumar (P.W.2) also reached at the spot. It is also not disputed that there was no enmity of the complainant or eyewitnesses with the accused/appellants. Their possibility of being present at the time of occurrence cannot be ruled out. It is quite natural that the appellants assaulted the son of the complainant and in order to save the life of his son, firstly, he had to provide medical aid to him and thereafter, the First Information Report was lodged at the police station concerned. It is also clear from the testimony of Amarkant (P.W.1) who scribed the written report giving the facts that this written report was prepared after returning from the hospital. Therefore, there is no inordinate delay in lodging the First Information Report. Keeping in view the promptness of the First Information Report, the possibility of false implication of the accused persons does not appear on the part of the prosecution. 9 21. Learned counsel for the appellants has further submitted that there is no motive shown by the prosecution on the part of the accused/appellants to commit murder of the deceased, as such the statements of the witnesses be not taken as true statement. Learned counsel for the appellants has further submitted that the incident took place in the night at about 08:00 p.m and there was no sufficient light to identify the appellants which creates a serious doubt about the prosecution case. 22. We do not find any force in the submission advanced by learned counsel for the appellants. In the instant case, the occurrence had taken place at about 08:00 p.m. and it is also not disputed that the occurrence took place in the night. However, the light of the electricity bulb is also available at the spot as per the evidence. The incident in this case has taken place near the shop of Pradeep Kumar. Rajiv Kumar (P.w.8) is the witness of fact and the electric bulb and rods were only the source of light at the time of the occurrence, which were taken into custody by the Investigating Officer – Sri Vishnu Chandra Gautam and memo thereof was prepared by him, which is Ext. Ka. 3 available on record. The statement of other witnesses Amarkant Sen (P.W.1) and Pradeep Kumar (P.W.2) were recorded who have specifically stated that there was sufficient light available at electric pole to identify the accused/appellants. These witnesses have further stated that Nand Ram was catching hold and another accused – Mohan Lal was giving fatal blows with his knife to the deceased – Shyamal. As to the light in which the witnesses could see the incident, there is enough evidence on record that the incident was seen by the eye-witnesses in the light 10 of the electric pole. The witnesses produced by the prosecution have specifically stated in their cross examination that there was electric light at the time of the incident. The site plan (Ext. A-13) prepared by P.W. 10 Sub- Inspector Sri Vishnu Chandra Gautam also shows the electric mercury lamp in the street. The ocular version of these witnesses clearly indicates that there is none, except the appellants, who have committed the murder of the deceased. 23. As far as the motive of commission of crime is concerned, even if there is no motive clarified by the prosecution for commission of crime, it does not create any reasonable doubt in the prosecution story. The statements of witnesses clearly support the prosecution case. The witnesses produced by the prosecution have specifically narrated the fact, which makes the whole picture very clear. Where there is direct evidence then the factum of motive becomes absolutely irrelevant. It is pertinent to mention here that all the eyewitnesses produced by the prosecution are independent witnesses and they could not falsely implicate the accused/appellants. Further, the Vishnu Chand Gautam – Sub Inspector (Investigating Officer) has no occasion to implicate the accused persons falsely. Even otherwise, in a case where the eyewitness account of the incident is there, it was not necessary for the prosecution to prove the motive. 24. Apart from the above evidence, there is another piece of important evidence against the appellants on the record, which further corroborates and proves beyond all reasonable doubt, is the medical report. In his deposition 11 Dr. J.C. Pandey (P.W.6) who has proved the postmortem report has stated that four punctured wounds found in the chest and abdomen damaging the chest, ribs, walls, right side liver causing collapse of blood vessels might be as a result of blows given with a knife in the occurrence, which could have taken place on 04.08.1988. 25. The factum of recovery of knife on pointing out of accused – Mohan Lal on the basis of which recovery memo (Ext. Ka. 4) was prepared, is also corroborated by P.W. 10 – Vishnu Chandra Gautam (Investigating Officer). This court on re-appreciation of the evidence on record finds that the testimony of P.W. 1 Amarkant Sen, P.W. 2 Pradeep Kumar, P.W. 3 Sukumar Chandra Sah, P.W.4 Sukranjan Das are not only natural, but also trustworthy, and they have no reason to falsely implicate the accused/appellants in the case. 26. In view of the above, we agree with the judgment proved by the trial court that the prosecution has successfully proved that the accused/appellants committed murder of Shyamal and the knife was found on the pointing of the accused – Mohan Lal. 27. For the reasons as discussed above, we do not find any force in this appeal. We concur with the trial court that the prosecution has successfully proved charge of offence punishable under Section 302 of I.P.C., beyond reasonable doubt against the accused/appellants. The impugned judgment and order convicting the accused appellant for the offence under Sections 302 of I.P.C. and sentencing him to undergo for life imprisonment, is upheld. 12 28. Accordingly, the appeal is liable to be dismissed and the same is dismissed. The trial court record be sent back so that the accused/appellants be taken into custody in order to serve out the sentence imposed by the trial court as above. The accused/ appellants are on bail. Their bails are cancelled. (Nirmal Yadav, J.) (B.C. Kandpal, J.) March 29, 2010 ASWAL