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 the Case. Criminal Appeal No. 318 of 2002 Date of decision : 30.06.2008 A.F.R. (Approved for Reporting) Not approved for Reporting Initials of Judge Date: 30.06.2008 Note:- Bench Reader will attach this at the top of first page of the judgment when it is put up before the Judge for signature. HIGH COURT OF UTTARAKHAND, AT NAINITAL Criminal Appeal No. 318 of 2002 Virendra Singh S/o Harak Singh R/o village Halli Patti Padli P.S. Bhowali District Nainital ….Appellant Versus State ……Respondent Mrs. Pushpa Joshi, Advocate for the appellant. Mr. Amit Bhatt, Addl. Government Advocate for the State. Date of Judgment:- 30th June, 2008 Hon’ble J.C.S. Rawat, J. This is a criminal appeal preferred against the judgment and order dated 09.12.2002 passed by the learned Sessions Judge, Nainital in S.T. No.8/2001 (State Vs. Virendra Singh), whereby the appellant was convicted and sentenced to undergo for a period of six months under section 323 IPC. 2. The facts, in nutshell, are that on 12.05.1999 a written report was lodged by Smt. Deepa (w/o Pushkar Singh-deceased) in the police station Bhowali, District Nainital alleging therein that on 25.04.1999 at about 9 or 9:15 p.m. an altercation took place between her brother-in-law (Jeth) Virendra Singh appellant and her husband Pushkar Singh with respect to the payment of animal’s milk. Appellant Virendra Singh assaulted her husband with fists and kicks due to which he became unconscious at the spot. When Smt. Deepa, wife of Pushkar Singh saw the incident she went to call some people from the village in order to save her husband. Thereafter, Manohar Singh PW2 and Nain Singh PW3 came at the spot alongwith other villagers. Both the witnesses found him unconscious and thereafter he died. The dead body of the deceased was cremated on the next day. The ‘people-paani’ was performed after 12 days of the death of the deceased. Thereafter, the complainant went to her parental house and narrated the entire story to her brother. Thereupon, the report was lodged at the police station. On the basis of the written report, a chick report was prepared and a case was registered against the appellant. After completing the investigation, the Investigating Officer submitted the chargesheet before the court against the appellant. 3. After submission of chargesheet the appellant- accused was committed to the court of Sessions for trial and the trial court framed charges against the accused person. He denied the charges levelled against him and claimed his trial. 4. The prosecution in support of its case examined eight witnesses. Smt. Laxmi Devi PW1 who is the mother of the deceased and Manohar Singh PW2 were declared hostile by the prosecution. Nain Singh PW3 and Hardayal Singh PW4 found the deceased in unconscious stage and thereafter the deceased died. Soban Singh PW5 has also seen the victim in unconscious stage and after some time the victim died. Smt. Deepa PW6, wife of the deceased is the informant of this case. Balam Singh PW7 is the scribe of the written report. Haider Raza Jaidi PW8 is the Investigating Officer of this case. 5. The accused person was examined u/s 313 Cr.P.C. and he has pleaded not guilty to the offence. He has stated that he has been falsely implicated in this case. 6. The accused-appellant in the trial eventually was convicted and sentenced by the trial court as mentioned above. 7. I have heard learned counsel for the parties. I have also gone through the evidence and material on record. 8. At the outset, it is pertinent to mention here that the accused was charged under section 304 & 201 IPC. The trial court has acquitted the accused under section 304, 201 IPC and sentenced the appellant under section 323 IPC. The prosecution has not filed any appeal against the said findings recorded in the impugned judgment and order. The impugned judgment and order to the extent had attained the finality. Now, I have to consider as to whether the appellant is responsible for the injuries caused on the person of the deceased. The prosecution case rests on the direct evidence. The prosecution in support of its case examined Smt. Laxmi Devi PW1 – mother of the deceased, who has stated in her evidence that her son (deceased) died in the month of April 1999. She has further stated that she did not know as to how her son died. During her cross examination, she has stated that the death of her son was natural. She further stated that at the time of death of her son she was ill and on bed rest due to which she could not move from the bed. Thus, this witness has stated that the deceased met a natural death and this witness was not declared hostile by the prosecution. The prosecution has also adduced the evidence of Manohar Singh PW2, who has stated that on the date of incident he had not seen the appellant assaulting the deceased with kick and fist. Nain Singh PW3 has stated in his evidence that on the date of incident when he heard noise he reached at the spot and found the deceased in unconscious stage. He further stated that he was not able to tell how the deceased became unconscious. Nain Singh PW3 has further stated that he died after some time. It is pertinent to mention here that this witness has not stated that he found any injury on the person of the deceased. Hardayal Singh PW4 and Soban Singh PW5 have stated in their evidence that they received an information that the deceased was not feeling well. On this, they went to the house of the deceased and found him unconscious and after a little bit of time he died. Both the prosecution witnesses have been declared hostile by the prosecution. 9. The only witness who supported the prosecution is Smt. Deepa PW6 – wife of the deceased. She has stated in her evidence that on the date of incident at about 9:30pm when she was in the kitchen she heard noise. She came out and saw her brother-in-law (Jeth) appellant assaulting her husband with kicks and fists. There was an altercation between them with respect to the payment of animal’s milk. Smt. Deepa PW6 has further stated in her evidence that she went to call some villagers in order to scot-free her husband. Thereupon Nain Singh PW3 and Manohar Singh PW2 came at the spot and after some time the deceased died. The appellant also threatened her with dire consequences. On the next date, the cremation of the deceased was conducted by the appellant and his family members. The ‘people-paani’ of the deceased was conducted after 12th day of the death. Balam Singh PW7 is the formal witness of the police and H. R. Jaidi PW8 is the I.O. of the case. 10. It is apparent from the record that except Smt. Deepa PW6 the prosecution witnesses have not supported the prosecution story. The other witnesses had only stated that they saw the deceased in unconscious stage and they were not able to tell as to how he died. Manohar Singh PW2 was only declared hostile by the prosecution. According to Smt. Deepa PW6, Manohar Singh PW2 and Nain Singh PW3 were called by her, whereas Nain Singh PW3 has stated in his evidence that when he heard the noise of Virendra Singh appellant he immediately rushed to the house of the appellant and Manohar Singh PW2 has stated in his evidence that the information of the incident was sent to him. Thus, both the witnesses are giving a contradictory statement. 11. Learned counsel for the appellant contended that the evidence of Smt. Deepa PW6 is not credible and cogent. The mother of the deceased has stated that her son died due to natural death and Smt. Deepa PW6 after 18 days stated that the appellant’s assault resulted the death of the deceased. There are discrepancies in the evidence. There was an inordinate delay in lodging the FIR. It was further contended that the entire evidence of the prosecution should be discarded on the ground that the FIR was a coloured version and it was lodged after due consultation. Learned Addl. G.A. refuted the contention. Smt. Laxmi Devi PW1, mother of the deceased had categorically stated that the deceased died due to natural death. The mother can tell a lie particularly with regard to the cause of the death of his son. The learned Addl. G.A. submitted that the mother PW1 has stated only this fact to save his other son-appellant from the clutches of the law. She is a prosecution witness. The prosecution did not request to the court to declare this witness as hostile. If the prosecution was of the impression that she is telling a lie, it had the opportunity to seek the permission of the Court to cross examine her. But the prosecution failed to do so. Now, the prosecution cannot wriggle out of her statement. The evidence of the mother of the deceased would be read against the prosecution. (See Jagan M. Seshadri Vs State of T.N. 2003 SCC (Cri) 1494) The evidence of Smt. Deepa PW6 is not credible and reliable. She remained silent for 18 days after the incident and she had a number of opportunities to tell the story to his brother or other family members of her parental house. 12. It is true that the incident took place on 25.04.1999 and the FIR was lodged on 12.05.1999 after a lapse of 18 days. It is well settled position of law that if the prosecution gives a plausible explanation for delay in lodging the FIR and the court feels that the explanation which has been put forward by the prosecution is satisfactory, the veracity of the FIR cannot be assailed on the ground of delay. It is also settled position of law that even if the plausible explanation has not been given but the record itself explains the delay in lodging the FIR by the facts and circumstances of the case the delay would not be fatal to the prosecution. Now, I have to examine as to whether the delay has been properly explained or not. It has come in the evidence of Smt. Deepa PW6 that since she was threatened by the appellant she could not report the matter to the police. When she came to her parental house she narrated the story and the brother of Smt. Deepa PW6 lodged the report immediately after knowing the fact. It is not in dispute that the ‘people-paani’ of the deceased was conducted after 12 days of the incident. It is admitted in the prosecution evidence that the family members of Smt. Deepa PW6 had participated in the “people-paani” ceremony. She has categorically stated that on the date of ‘people-paani’ 8-9 people also came there from her parental house. The people came there at about 9AM in the morning and left the house at about 3pm on the same day. She has further stated that after the “people-paani” she went to her ‘Nanihal’, which is about 4 hours journey from his matrimonial house and she stayed there for about 3-4 days. Thereafter, she went to her parental house where she narrated the entire fact to her brother. She has also stated that she could not tell this story to anyone. Balam Singh PW6, the brother of the informant has stated in his evidence that the matrimonial house of Smt. Deepa PW6 is adjacent to her ‘Nanihal’. Thus, there is a discrepancy between the evidence of Smt. Deepa and Balam Singh PW7. Her brother has stated that after the ‘people-paani’ ceremony he took her sister to her ‘Nanihal’ where they stayed for about 2 days. Thus, there is a discrepancy between the evidence of PW6 and PW7 with respect to the days of stay at ‘Nanihal’. It creates a doubt that as to whether Smt. Deepa PW6 went to her ‘Nanihal’ with her brother or not. It is pertinent to mention here that several people would have gathered on the cremation of dead body. Smt. Deepa PW6 could have narrated the entire story to them. Moreover, it has come in the evidence that on the date of ‘people-paani’ 8-9 people also came there from her parental house. Smt. Deepa Devi PW6 could have also narrated the story to her brother on the date of ‘people-paani’. If she went to her ‘Nanihal’ she could have narrated to her grandmother or any person available there and the report could have been lodged from ‘Nanihal’ itself. The informant remained for 12 days in her matrimonial house under the pressure of appellant-accused and she also stayed in her ‘Nanihal’ for 2-3 days and thereafter the report should have been lodged on the 16th day of the incident. However, the report was lodged on 18th day of the occurrence. Thus, the circumstances lead to take an inference that Smt. Deepa PW6 had sufficient opportunity to report the matter to the police station or to the Patwari. She could have narrated on the day of ‘people-paani’ to her brother and she could have informed to any other members in her ‘Nanihal’ immediately after 12th day of the occurrence. These facts also lead to take an inference that the evidence of Smt. Deepa PW6 is not credible and cogent. In view of this, I also find that there was an inordinate delay in lodging the FIR and the prosecution evidence could not explain the delay. Thus, I find substance in the argument advanced by the learned counsel for the appellant. The trial court has erred in holding that the prosecution has sufficiently explained the delay in lodging the FIR. 13. As I have pointed out earlier that the prosecution witnesses who immediately reached at the spot have not stated in their evidence that they saw any injury on the person of the deceased. It is also pertinent to mention here that the conduct of the witnesses was relevant to the extent what they saw and heard immediately after the occurrence. The witnesses reached immediately after the occurrence at the spot and none has stated to them that the injury has been caused by the appellant which is admissible under section 3 & 8 of the Evidence Act. Thus, the witnesses further falsifies the prosecution story. 14. Smt. Deepa PW6 has categorically stated in her evidence that she was not happy in her matrimonial house. She has further stated in her evidence that the appellant and his wife used to exploit her on the pretext of household works and the wife of appellant used to sit idle in the house and their behaviour was not good to her. So, she was ennoyed with the appellant-accused. The sole evidence of Smt. Deepa PW6 is not credible and cogent. I have gone through the entire evidence on record and find that it did not give the correct picture of the incident. Other witnesses have not corroborated the evidence of Smt. Deepa PW6. 15. In view of the foregoing discussion, I am of view that it would not be safe to convict the appellant on such evidence. Therefore, the prosecution has not established the guilt beyond any reasonable doubt against the appellant. I find that the learned trial court has erred in convicting the sentencing the appellant. Hence, the appeal is allowed. The conviction and sentence awarded by the trial court against the appellant are set aside. The appellant is acquitted of the charge levelled against him. His bail bonds are cancelled and sureties discharged. 16. Let the lower court record be sent back to the court concerned. (J.C.S. RAWAT, J.) Dated 30.06.2008 LSR