IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Court order whether the case is or not approved for reporting (Chapter VIII, Rule 32(2)(b) Description of Case Criminal Appeal No. 1226 of 2001 (Old No. 1485 of 1990) Date of decision :-22.04.2008 A.F.R. (Approved for Reporting) Not Approved for reporting Date:-22.04.2008 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. 1226 of 2001 (Old No.1485 of 1990) 1. Gopali Singh S/o Sri Senu Singh 2. Prem Singh S/o Sri Gopali Singh Both r/o village Niwar Mandi, P.S. Jaspur, District Nainital…..Appellants Versus State ……Respondent Dated: - 22nd April, 2008 Mr. R.C. Tamta, Advocate for the appellants. Mr. Nandan Arya, Addl. G.A. for the State. Hon’ble J.C.S. Rawat, J. This is a criminal appeal against the judgment & order dated 05.07.1990 passed by the then 4th Additional Sessions Judge, Nainital in S.T. No.271 of 1989, whereby both the appellants were convicted and sentenced to undergo R.I. for seven years under section 304 IPC read with 34 IPC. 2. The facts, in nutshell, are that on 21.08.1988 at about 2p.m. Smt. Krishna Devi (deceased) was removing soil which had fallen down from a wall nearby her house situated in Mohalla Niwadmandi, P.S. Jaspur. Appellants Gopali Singh and Prem Singh objected her to remove the soil. On this, a scuffle took place between the parties. Accused Gopali Singh and Prem Singh beat her with a wooden stick (danda) due to which Krishna Devi had sustained injuries on her person. When her brother Pritam Singh tried to intervene in the melee he was also beaten by the accused persons. In the meantime, Banwari PW5, the father of the deceased and other witnesses reached at the spot at the time of incident and they saw the incident. The witnesses intervened in the melee and tired to save the injured persons from the assaults of accused persons. Thereafter, the report was lodged at the police station on the date of incident of a non- cognizance offence. Injured persons were taken to the hospital for medical treatment. The medical examination of Smt. Krishna Devi and Pritam Singh PW4 was conducted by Dr. G. S. Joshi at about 4:10 and 4:25 pm respectively on the date of incident. Smt. Krishna Devi was referred to for X-ray and after conducting X-ray a supplementary report was submitted in which one injury was found grievous in nature. On 23.08.1988 at about 11:50pm Smt. Krishna Devi succumbed to her injuries in the civil hospital, Jaspur. Thereafter, the police converted the case under section 304 IPC on 24.08.1988. The matter was investigated by the police and after completion of the investigation the chargesheet was submitted before the court concerned. 3. After submission of chargesheet the appellants- accused were committed to the court of Sessions for trial and the trial court framed charges against the accused persons. They denied the charges levelled against them and claimed their trial. 4. The prosecution in support of its case examined six witnesses. Dr. G. S. Joshi PW1 was the medical officer, who medically examined Smt. Krishna Devi and Pritam Singh. He proved the injury reports Ex.Ka.1 & 2. Jagdish Singh PW2 is a witness of inquest report. Constable Naubat Singh PW3 took the dead body of the deceased in a sealed bundle to the hospital for postmortem. Pritam Singh PW4, brother of the deceased is the injured eye-witness of the incident. Banwari PW5, father of the deceased reached immediately at the spot at the time of incident. He is the eyewitness of the incident. R. M. Mishra PW6 is the Investigating Officer of this case and he investigated the case and submitted the chargesheet against the appellants. 5. The accused persons were examined u/s 313 Cr.P.C. and they have pleaded not guilty to the offence. They have stated that they have been falsely implicated in this case due to the enmity with the complainant. Appellant-Gopali Singh has further stated that the complainant party set fire his house and caused injuries on Maya Devi, Har Devi and Prem Singh. 6. The appellants have also produced the injury reports of Smt. Her Devi, Prem Singh and Km. Murti (Ex.kha.1, 2 & 3 respectively) in support of their defence. 7. The accused-appellants in the trial eventually were convicted and sentenced by the trail court as mentioned above. 8. I have heard learned counsel for the parties and perused the record carefully. 9. At the outset, it needs to be mentioned here that it is not disputed that the deceased died on account of ante-mortem injuries sustained by her on the date and time of the occurrence. Dr. G. S. Joshi PW1, Medical Officer examined Smt. Krishna Devi at 4:10p.m. on the date of incident and found the following injuries on her person:- 1. L.W. 9 cm. x 1 cm. x bone deep on the left fronto parietal region of skull. 7 cm above from (L) eyebrows & 8 cm above from pinna of (L) ear. Fresh bleeding present. Fresh bleeding present from both the nostrils. 2. Contused swelling 5 cm x 5 cm on left side of face on both the (L) upper & lower eyelids. Colour red. 3. Contusion 3 cm x 2 cm just over the back of neck at C-7 spinous process. Colour red. 4. Contusion 2 cm x 1.5 cm at the medical angle of Rt. scapula. Colour red. The Medical Officer has opined that all the injuries were caused by some blunt and hard object. The duration of injuries was fresh. Injury no.1 was kept under observation and rest of the injuries were simple in nature. Dr. G. S. Joshi PW1 has proved the injury report of Smt. Krishna Devi (Ex.ka.1) 10. Smt. Krishna Devi succumbed to her injuries on 23.07.1988 in the hospital. Dr. G. S. Joshi (PW1), Medical Officer conducted the postmortem of deceased on 24.08.1988 at 4p.m. and found following ante- mortem injuries on the person of the deceased:- (i) Contusion left upper & lower eye lids. (ii) Stitched wound over left side above 8cm ear in bleeding both ears. (iii) Abrasion about 1.5cm x 1cm over post part of left shoulder. (iv) Abrasion about 1cm x 0.75cm over post part of right shoulder. The medical officer has opined that the death of the deceased was caused due to coma resulting from head injury. He has opined that the injury nos. 1 & 3 were caused by some blunt and hard object. The duration of injuries was fresh. Thus, it is amply established that the deceased met a homicidal death on account of ante-mortem injuries sustained by her on the date of occurrence. 11. It is also not disputed that Pritam Singh PW4 also sustained injuries on the same time and date. Pritam Singh PW4 was medially examined by Dr. G. S. Joshi PW1, medical officer on 21.08.1988 at 4:25pm. The medical officer found the following injuries on the person of injured-Pritam Singh PW4:- 1. Contused swelling 1.5 cm x 1 cm on outer aspect of Rt. lower lip. Colour red. 2. Abraded swelling 4 cm x 3 cm. on right parieto-temporal region of skull 4.5 cm above the pinna of Rt. ear. Fresh oozing of blood present. 3. Contused swelling 3 cm x 2 cm on the left/temporal region of skull 3.5 cm above the pinna of (L) ear. Colour red. 4. Abrasion 6 cm x 5 cm on the posterior aspect of right leg 10 cm proximal to the Rt. ankle joint. Fresh oozing of blood present. As per the opinion of doctor, injury Nos.1 & 3 are caused by some blunt & hard object; injury Nos. 2 and 4 are caused by friction against some blunt object; the duration of the injuries were fresh; and all the injuries were simple in nature. 12. Now, I have to consider as to whether the appellants were responsible for inflicting injuries on the persons of Smt. Krishna Devi and Pritam Singh. The prosecution has examined six witnesses in all. There is direct evidence connecting the appellants-accused with the offence charged. The prosecution has adduced the evidence of eye-witnesses Pritam Singh PW4 (injured) and Banwari PW5. Pritam Singh PW4, who is an injured eye-witness of the incident has stated in his evidence that on 21.08.1988 at about 2pm his sister Smt. Krishna Devi was removing soil which has fallen down from the wall. On this, appellants protested the removal of soil and stated her that the soil belongs to them. The altercations took place between them and thereafter the appellants struck the deceased with a wooden stick (danda) on her head and other parts of the body. Pritam Singh PW4 has further stated in his evidence that when he tried to intervene in the melee he was also beaten by the appellants. Banwari PW5, the father of the deceased himself and other witnesses reached at the spot. They intervened in the melee and escaped Smt. Krishna Devi from further beating. Thereafter, a report was lodged at the police station and the injured persons were taken to the hospital for medical treatment. Ultimately, the deceased died on 23.08.1988 due to the injuries sustained by her on the date of incident. The prosecution has also adduced the evidence of Banwari PW5, who is the father of the deceased. He had given vivid details of the incident and corroborated the evidence of Pritam Singh PW4 on material points. It is pertinent to mention here that the presence of injured eye- witness Pritam Singh PW4 cannot be discarded as he also received injuries in the incident. The presence of this injured eye-witness at the relevant time was explained and his evidence cannot be thrown out as unreliable or tainted. The injured eye-witness stands on a higher pedestal than ordinary witness. It is also well settled that the testimony of the injured eye-witness is sufficient to base the conviction and no further corroboration is required. His testimony is credible and cogent. The presence of the injured eye-witness cannot be ruled out. The testimony of an injured eye-witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence lends support to his testimony that the witness was present during the occurrence. Moreover, the evidence of injured witness is also corroborated by the evidence of another eye- witness Banwari PW5. {Vide Narendra Nath Khaware Vs. Parasnath Khaware and others 2003 SCC (Crl) 1144 and State of U.P. Vs. Kishan Chand and others 2004 SCC (Cri) 2013}. 13. Learned Amicus Curiae for the appellants contended that the prosecution has not produced the independent witnesses to corroborate the factum of incident. It was further contended that it has come in the evidence that Naresh and Umesh were also present at the time of incident, but they were not produced before the court. It was further contended that Pritam Singh PW4 and Banwari PW5 are related to the deceased and as such their evidence should not be relied upon. It was further contended that these eye- witnesses of the incident are interested witnesses as they are related to the deceased. Learned A.G.A. refuted the contention. The evidence of Pritam Singh PW4 and Banwari PW5 is consistent and nothing had been elicited from their cross examination which may render their evidence unreliable. They remained consistent in their cross examination with regard to the factum of incident. So far as the contention regarding the interested or related witness is concerned, it is true that Pritam Singh PW4 and Banwari PW5 are related to the deceased, but the evidence of these eye-witnesses cannot be discarded on this ground alone. There is no rule of law or prudence which requires that the evidence of a close relation must be discarded for the simple reason i.e. he is related to the deceased. I have no reason to disbelieve their testimony. Similarly, being relative, it would be their endeavour to see that the real culprit is punished and they would not implicate wrong person in the crime, so as to allow the real culprit to escape unpunished. Relationship is not a factor to affect the credibility of a witness. In the case of State of Punjab Vs. Karnail Singh reported in 2004 SCC (Cri) p/135 the Hon’ble Apex Court has held as under:- “8. We may also observe that the ground that the witnesses being close relatives and consequently, being partisan witnessed, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh v. State of Punjab reported in AIR 1953 SC 364 in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J., it was observed: (AIR p. 366:- 25. We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. It the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in – Rameshwar v. State of Rajasthan reported in AIR 1952 SC 54 (AIR at p. 59). We find, however, that it unfortunately still persists, if not in the judgments of the courts, at any rate in the arguments of counsel.” 9. Again in Masalti v. State of U.P. AIR 1965 SC 202 this Court observed:- “But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.” 14. So far as the contention that no independent witness was produced is concerned, it is not always necessary to multiply the evidence of the incident on the same point. It has to be seen what is the quality of the witnesses. It is the quality of the evidence and not the quantity, which is required. If the evidence available on record is otherwise satisfactory in nature and can be said to be trustworthy then increase in the number of witnesses cannot be the requirement of the case. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Moreover, it has now almost become a fashion that the public is reluctant to appear and depose before the court especially in criminal cases because of varied reasons. Criminal cases are kept dragging for years to come and the witnesses are harassed lot. They are being threatened, intimidated and at the top of all they are subjected to unnecessary lengthy cross- examination. So, the witnesses avoid to come to the court. The evidence of prosecution witnesses is consistent and nothing had been elicited from their cross examination which may render their evidence unreliable. In view of the above discussions, we do not find any force in the contentions advanced by the learned Amicus Curiae for the appellants. 15. Learned Amicus Curiae for the appellant further contended that there are contradictions in the testimony of the prosecution witnesses. Learned Amicus Curiae for the appellants-accused tried to point out certain contradictions in the testimony of the witnesses. Learned A.G.A. refuted the contention. After going the entire evidence, I am of the view that the contradictions pointed out from the evidence of the prosecution witnesses were not material to discredit the testimony of the witnesses. A person cannot accurately recall a conversation and reproduce the very words used by him or heard by him. It is unrealistic to expect a witness to be a human tape-recorder. The witness cannot be expected to pose a photographic memory and to recall the details of an incident. When the occurrence is taken place the witnesses present at the spot never try to count the assault, their first priority would be to save the life of the injured. If the contradictions are there it does not affect the prosecution story, the courts should not take into account such minor discrepancies, which are bound to come in the truthful testimonies. The normal discrepancies in evidence are those which are due to normal errors of observations, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. I have gone through the entire evidence and the contradictions pointed out by the learned Amicus Curiae for the appellants are of no consequence. 16. It was further contended on behalf of the appellant that the I.O. did not seize blood stained clothes of the deceased from the place of occurrence and it was not sent to the serologist for examination. Learned A.G.A. refuted the contention. This is only remissness on the part of the investigation. It is only a corroborative piece of evidence. If the ocular testimony is cogent and convincing there is no requirement to seek the corroboration from other evidence. This is a remissness on the part of the Investigating Officer, which does not help the appellants. The Apex Court has, while maintaining the conviction of the accused in Karnel Singh Vs. State of M.P. reported in 1995(5) SCC 518, 1995 SCC (Cri) 977 & 1995 CRL.L.J 4173, observed:- “Notwithstanding our unhappiness regarding the nature of investigation, have to consider whether the evidence on record, even on strict scrutiny, establishes the guilt. In case of defective investigation the Court has to be circumspect in evaluating the evidence but it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the Investigating Officer if the investigation is designedly defective. Any Investigating Officer, in fairness to the prosecutrix as well as the accused, would have recorded the statements of the two witnesses and would have drawn up a proper seizure-memo in regard to the Chaddi. That is the reason why we have said the investigation was slipshod and defective.” 17. It has been observed by the Hon’ble Supreme Court in Dhanaj Singh @ Shera and others Vs. State of Punjab 2004 (3) SCC P-654 that in the instant case, the High Court found several disturbing features which indicated how the investigating officer had made out a new case to save the accused persons and to implicate the complainant party. Hence, the High Court analyzed the evidence of the eye witnesses with due care and caution. On finding the said evidence to be credible, the High Court upheld the conviction recorded by the trial court. Before the Hon’ble Supreme Court, the accused appellants challenged the conviction on the grounds (1) that the police after thorough investigation had concluded that it was the complainant party which caused the death of the deceased (ii) that the pellets, wads and cartridges were not recovered from the spot, (ii) that the weapons of assault and the pellets were not sent for ballistic examination, (iv) that the blood stained earth was not sent for chemical examination (v) that many persons who could have thrown light on the incident had not been examined, and (vi) that the evidence being that of highly interested and inimical persons, should have been discarded. Dismissing the appeal, it was held by the Apex Court that even if the investigation is defective, that pales into insignificance when ocular testimony is found credible and cogent. In the case of a defective investigation the court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect. To do so would tantamount to playing into the hands of the investigating officer if the investigation designedly defective. 18. The Hon’ble Apex Court in the case of Rotash Vs. State of Rajasthan 2007 AIR SCW 44 has held as follows: - “32. The investigation was not foolproof but then defective investigation would not lead to total rejection of the prosecution case. 33. In Visveswaran v. State 2003 (6) SCC 73, this has held: Before we notice the circumstances proving the case against the appellant and establishing his identity beyond reasonable doubt, it has to be borne in mind that the approach required to be adopted by courts in such cases has to be different. The cases are required to be dealt with utmost sensitivity, courts have to show greater responsibility when trying an accused on charge of rape. In such cases, the boarder probabilities are required to be examined and the courts are not to get swayed by minor contradictions or insignificant discrepancies which are not of substantial character. The evidence is required to be appreciated having regard to the background of the entire case and not in isolation. The ground realities are to be kept in view. It is also required to be kept in view that every defective investigation need not necessarily result in the acquittal. In defective investigation, the only requirement is of extra caution by courts while evaluating evidence. It would not be just to acquit the accused solely as a result of defective investigation. Any deficiency or irregularity in investigation need not necessarily lead to rejection of the case of prosecution when it is otherwise proved.” Therefore, I do not find any force in the contention raised by the learned Amicus Curiae for the appellants. 19. Learned Amicus Curiae for the appellants contended that the prosecution has not explained the injuries inflicted upon the accused-appellants. It was contended that injury reports Ex.Kha.1 to 3 were filed before the trial court. It was obligatory on the part of the prosecution to explain the injuries sustained by the appellants. The prosecution has failed to explain injuries inflicted upon the appellants. AS such, the appellants are entitled to be acquitted on this score. Learned A.G.A. refuted the contention. It is pertinent to mention here that in the present case the appellants are Gopali Singh and Prem Singh. The prosecution has produced three medical certificates of Smt. Har Devi, Prem Singh and Km. Murti Devi. The Medical Officer has found the following injuries on the person of Smt. Her Devi who was examined on 21.8.1988 at 4pm :- 1. Long contusion 14 cm x 2.5 cm on the back of chest extending on both the right & left side of chest. Colour red. Injury is 8 cm below from inferior angle of right scapula. 2. Contusion 8 cm. x 2cm on the back of (L) shoulder just over the spine of (L) scapula. Colour red. 3. Contused swelling 2 cm x 2 cm on the left parito – temporal region of skull 5cm above from (L) ear colour red. As per the opinion of doctor, all the injuries were caused by some blunt & hard object; the duration of the injuries were fresh; and all the injuries were simple in nature. 20. Accused Prem Singh was examined on 21.08.1988 at 3:30pm by the medical officer, who found the following injuries on his person:- 1. L.W.