IN THE HIGH COURT OF UTTARAKHAND AT NAINTIAL (Chapter VIII, Rule 32(2) (b) Description of Case Criminal Appeal No. 83 of 2002 Date of decision : 27th February, 2008 A.F.R. (Approved for Reporting) ____________________________ Not approved for reporting Date : 27.02.2008 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.83 of 2002 1. Chater Singh S/o Sri. Gumatu, R/o Village Anol Patti Garmari, Tehsil Dunda District Uttarkashi. 2. Hukum Singh S/o Sri Kundan Singh R/o Village Anol Patti Gamari, Tehsil Dunda District Uttarkashi. …. Appellants Versus State of Uttarakhand ….. Respondent Mr.Rajendra Kotiyal, Advocate for the appellants. Mr. Harish Chandra Pujari, Addl. Government Advocate for the respondent. JUDGMENT Hon’ble J.C.S. Rawat, J. This is a criminal appeal against the judgment and order dated 02.4.2002 passed by the learned Sessions Judge, Uttarkashi in S.T. No.19 of 1998 by which the accused-appellants were convicted under Sections 148, 452, 323 read with 149 of the I.P.C. and sentenced to undergo two years rigorous imprisonment under Section 148, three years under Section 452 and nine months under Section 323 read with 149 of the I.P.C. It was further directed that the sentences would run concurrently. However, the accused-appellants were acquitted from the charges punishable under sections 427 & 436 IPC and co- accused persons, namely Hukam S/o Chindirya Bijju @ Bijendra Singh and Uttabir Singh @ Yudhbir Singh were acquitted from the charges leveled against them. 2. The brief facts of the case are that in the intervening night of 17/18.7.1994 at about 12:00 O’clock, appellants Chater Singh and Hukum Singh s/o Kundan Singh alongwith co-accused persons came to the house of Baldev Singh PW1 with the common object to cause injuries to Baldev Singh, Balam Singh, Smt. Hansa Devi and Kalyan Singh. They pelted stones towards the windows and thereafter into the house of Baldev Singh they caused hurt to them. They also set fire and caused damages to the household goods of Baldev Singh. Dara Singh PW2 saw the incident y concealing himself under the cot and he is a relative of the victims. In the morning, Dara Singh PW2 went to Kishan Singh, the brother of Baldev Singh and narrated the entire incident to him. Kishan Singh came to the District Hospital, Uttarkashi. Thereafter, Chandan Singh scribed the written report on the dictation of Kishan Singh and it was lodged at the police station Uttarkashi by Kishan Singh. After making necessary entries in the police records, the said report was sent to the concerned Patwari on 18.7.1994 through Tehsil Dunda. The said report was received by the concerned Patwari on 07.8.1994. Thereafter, the concerned Patwari investigated the matter and submitted the chargesheet against the accused persons including the appellants. 3. The appellants and the co-accused persons were committed to the court of Sessions by the Chief Judicial Magistrate, Uttarkashi vide order dated 10.8.1998. After hearing the parties, the learned Sessions Judge framed charges against the accused persons. The accused persons pleaded not guilty of the offences and claimed to be tried. 4. The prosecution in support of its case examined Baldev Singh PW1 and Smt. Hansa Devi PW3 who are said to be the injured eye-witnesses of the incident. The accused persons had caused injuries on their persons. They narrated the entire eye-account of the incident. Dara Singh PW2 is also an eyewitness of the incident. He was inside the house when the incident took place. Dr. S.D. Joshi PW4 is the medical officer, who examined injured Baldev Singh, Balam Singh, Smt. Hansa Devi and Kalyan Singh on 18.7.1994. Jagendra Singh, Patwari PW5 and Harshmani Nautiyal, Patwari PW6 are the Investigating Officers of this case. Constable Mal Singh Negi PW7 had proved the F.I.R. and he is the formal witness. 5. After recording the evidence, the trial court examined the accused persons under Section 313 of the Criminal Procedure Code. The accused persons denied not only all the averments made in the evidence but also participation in the said incident; and they have stated that they have been falsely implicated in the case. 6. The accused persons did not adduce any oral and documentary evidence in their defence before the trial court. 7. I have heard the learned counsel for the parties and perused the record. 8. At the outset, it needs to be mentioned here that it is not disputed that injured Baldev Singh PW1, Balam Singh, Smt. Hansa Devi PW3 and Kalyan Singh sustained injuries in the intervening night to 17/18.7.1994. Dr. S.D. Joshi PW4, who examined the injured persons, has stated that the said injuries could have been caused in the intervening night of 17/18.07.1994. At the time of examination, he found that the injuries sustained by the injured on their person were 12 to 18 hours old. He medically examined injured Baldev Singh on 18.07.1994 at 3:10 p.m. and found the following injuires on his person:- (i) Multiple injuries which are more than 10 in number all over back from nape to neck. Whole back was swollen. (ii) 15 x 15 cm. contusion with both sides showing living of bruise oblique on the right aren in lateral aspect. (iii) Multiple contusions below mid of right arm upto wrist. (iv) 3 x 1cm. and 4.1 cm. on the latero post aspect of left arsen just near to shoulder joint no.1. (v) Multiple abrasion on left elbow. (vi) Multiple abrasion five in number on left elbow. (vii) 10 x 5 cm. area in reddish colour and three contusion on the area mentioned 16 cm. below. (viii) 9 x 7 cm. area of lateral aspect of right lower limb 9 cm. above lateral malleolus shows 4 contusion. (ix) 7 contusions on right lower leg below top joint to knee. (x) 3 x 1 cm. abrasion oblique from lateral canthas of left eye towards left ear. (xi) Multiple abrasion in the area of 3 x 1 x 2 cm. below lower led of right eyey. (xii) 3 x 1 cm. contusion 5 cm. below right nipple. 9. Dr. S.D. Joshi PW4 medically examined injured Balam Singh on 18.07.1994 at 2:15 p.m. and found the following injuries on his person:- (i) Multiple contusions approximately six in number alongwith swelling in left forearm. (ii) Multiple reddish contusion 4 in number from right side forearm. (iii) Six contusions on back width is 2.2 cm. of all contusions length varies from 8 cm. to 2 cm. (iv) Two contusions on the calf of the size 4 x 2 cm. and 2 x 4 cm. (v) 4 x 1.2 cm. abrasion on the knee joint. (vi) 2 x 2 cm. contusion on the calf with reddish blue colour and swelling. 10. Dr. S.D. Joshi PW4 medically examined injured Smt. Hansa Devi on 18.07.1994 at 2:40 p.m. and found the following injuries on his person:- 1. 5 contusions spread in the area of 10 x 6 cm. on left forearm. 2. 4 x 2 cm. contusion on the dorsum of left hand. 3. 1 x .5 cm. abrasion on the left lower limb. 4. 4 x 2.1 cm. reddish contusion on the right thigh. 5. Multiple abrasion on the left aspect of right knee. 6. Contusion 5 x 1.2 cm. reddish in colour oblique on right knee joint. 7. 1 x 1 cm. on the right lower limb. 8. 3 x 1 cm. contusion right above knee joint colour is reddish blue. 11. Dr. S.D. Joshi PW4 medically examined injured Kalyan Singh on 18.07.1994 at 4:05 p.m. and found the following injuries on his person:- 1. 2 x 1 cm. abrasion on the fact. 2. Evulsion of skin 6 x 4 cm. area 10 cm. below elbow joint on lateral aspect of left forearm. 3. 8 x 2 cm. contusion reddish blue in colour just over the elbow. 4. 4 x 2 cm. contusion just below right lower tip of scapula. 5. 5 x 2 cm. contusion on the back below right scapula. 6. Whole of left lower limb below knee upto ankle is red hot. 7. 7 cm. x 1.5 cm. contusion 10 cm. below outer aspect of knee joint colour is reddish blue and tenderness present. 8. 3 x 4 cm. contusion reddish blue in colour 4 cm. below of right forearm. 12. Thus, it is evident from the evidence of Baldev Singh PW1, Dara Singh PW2 and Smt. Hansa Devi PW3 that the incident of ‘marpeet’ took place and the injured sustained injuries in the intervening night of 17/18.7.1994. The doctor has further corroborated the factum of sustaining injuries by the injured. 13. Now, the question for determination is as to whether the appellants were responsible for causing the injuries to the injured. In support of the above, the prosecution has adduced the evidence of eyewitnesses. Baldev Singh PW1 had stated in his evidence that in the intervening night of 17/18.07.1994 at about 12:00 O’clock, the appellants alongwith other accused persons came to his house and tried to break open the door. After entering the house, they beat him and dragged him to the ‘Chowk’ where he was again beaten. Consequently, he became unconscious. It is also stated in his evidence that when Smt. Hansa Devi PW3, wife of Baldev Singh tried to intervene in the melee, she, too, was beaten alongwith her husband and son Kalyan Singh. Baldev Singh PW1 has named both the accused appellants in his evidence. He identified all the accused persons including the appellants i.e. Chatar Singh and Hukum Singh s/o Kundan Singh. The prosecution has adduced the evidence of the eye-witness Dara Singh PW2, who narrated the entire incident regarding the entering of accused persons into the house of Baldev Singh PW1 in the same manner as Baldev Singh has stated in his evidence. Dara Singh Pw2 has further stated that he, being afraid of the incident, concealed himself below the cot from where he saw the entire incident. He went to Kishan Singh, the brother of Baldev Singh in the next morning and narrated the entire incident to him. He had further stated that Dara Singh PW2 had come to the house of Baldev Singh in the evening when the incident took place. Smt. Hansa Devi PW3 has also narrated the incident but she categorically stated that she could not identify the accused persons as well as the appellants. This is the entire evidence of the facts in this case. 14. It is pertinent to mention here that Baldev Singh PW1 and Smt. Hansa Devi PW3 are the injured witnesses of the incident. Baldev Singh PW1 has also narrated the incident and as to how he was injured. It is also in the evidence that he remained admitted in the Uttarkashi Hospital due to the injuries sustained by him in the incident and thereafter he was taken to nursing home at Dehradun where he remained admitted for few days. The evidence of injured eyewitness cannot be lightly washed away from the record unless there are compelling circumstances to discard their evidence. All the eyewitnesses, particularly Baldev Singh PW1 and Dara Singh PW2 have fully supported the prosecution version. They were cross examined at length, but nothing could be elicited in their cross examination to discredit their testimony. the presence of injured eyewitnesses Baldev Singh PW1 and Smt. Hansa Devi PW3 cannot be doubted. They have sustained multiple injuries in the incident and the prosecution has proved the same. The injured witness stands on a higher pedestal than an ordinary eyewitness. It is also well settled that the testimony of the injured eyewitness is sufficient to base the conviction and no further corroboration is required. Their testimony is credible and cogent. The presence of the injured witnesses cannot be ruled out. The testimony of an injured witness has its own relevance and efficacy. The fact that the witnesses sustained injuries at the time and place of occurrence lends support to his testimony that these witnesses were present during the occurrence. {See 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}. 15. Learned counsel for the appellants further contended that there are contradictions and exaggerations in the testimony of the prosecution witnesses. Learned counsel for the accused appellants pointed out certain contradictions in the testimony of the witnesses. Learned counsel for the appellants has taken me to the entire evidence and tried to make out a case that the appellants have been falsely implicated. Learned A.G.A. refuted the contention. It is pertinent to mention here that the incident took place in the intervening night of 17/18.07.1994 and the evidence of the witnesses were recorded in the month of July, 2000 after a lapse of six years. If the witnesses are examined after inordinate delay the contradictions are bound to creep in the testimony of truthful, natural and reliable witnesses when they speak about the details. The witnesses are villagers and they have their own notions about the narration of the facts. 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 and those are always there however honest and truthful a witness may be. By and large the people cannot accurately recall the sequence of the events which took place in short span and reproduce the sequence of events before the Investigating Officer or the Court. They can only recall the main purport of the incident. It is unrealistic to except a witness to be a human tape-recorder or video camera. The witnesses cannot be expected to pose a photographic memory and to recall the details of an incident. If the witness belongs to village he is likely to get confused or mixed up when interrogated later on. It cannot be expected from the witness to narrate the incident with mathematical niceties in criminal cases. The contradictions as pointed out by the learned counsel for the accused-appellant are of minor nature and these contradictions and inconsistency do not render the evidence of the prosecution witnesses including eyewitnesses unbelievable. Trivial discrepancies ought not to obliterate or otherwise acceptable evidence. Therefore, I do not find any force in the contention of the learned counsel for the appellants. 16. Learned counsel for the appellants contended that even assuming that the evidence of the prosecution is credible and cogent the appellants are entitled to get the benefit of doubt as there was no motive for them to commit the offence. Baldev Singh PW1 has categorically stated in his evidence that there was no enmity in between the appellants and the injured persons. Learned A.G.A. refuted the contention. When the eyewitnesses of the occurrence consistently supported the prosecution case, the question of motive would have lost its importance. It is well settled that in order to bring home the guilt of an accused, it is not necessary for the prosecution to prove the motive. The existence of motive is only one of the circumstances to be kept in mind while appreciating the evidence adduced by the prosecution. It the evidence of the witnesses appears to be truthful and convincing, failure to prove the motive is not fatal to the case of the prosecution. It is also well settled that establishment of motive is not sine-qua-non for proving the prosecution case. It the case of Baboolal Vs. State of U.P. 2001 SCC (Cri) 1484, the deceased was sitting inside the area shop of one Abdul Nabi. On the opposite side of road, there was a sweetmeat shop and all the accused were sitting inside it. As the radio was being played on a high pitch, an exchange of words took place between those who were sitting in the tea shop and the accused. The accused threatened PW1 and others for raising this petty issue. A little later the deceased reached there and on coming to know of the development of the incident, he expressed his resentment at the incident reaching that range on such a petty issue. On this, the accused moved forward with a pistol accompanied by the second accused and another person with daggers in their hands and fired upon the deceased. The Hon’ble Supreme Court has held as follows:- “8. Learned counsel rightly contended that on such a petty quarrel, no sensible person would have used such a lethal weapon and killed the victim. How the mind of an assailant reacted is not possible to be fathomed from a detached reflexion. As pointed out by this Court in Nathuni Yadav v. State of Bihar 1998 SCC(Cri) 992: “Many a murders have been committed without any known or prominent motive. Mere fact that prosecution failed to translate that mental disposition of the accused into evidence does not mean that no such mental condition existed in the mind of the assailant.” 17. In the case of Thaman Kumar Vs. State of Union Territory of Chandigarh 2003 SCC (Cri) 1362, the Hon’ble Apex Court has held that :- “18. Shri Sushil Kumar has drawn our attention to certain findings recorded by the learned Sessions Judge and has urged that he had rightly given benefit of doubt to the appellants and the High Court committed manifest error of law in reversing the aforesaid findings and convicting and sentencing the appellant while hearing an appeal against acquittal. The learned counsel has urged that the prosecution has failed to prove any motive on the part of the appellants to commit the crime. It is true that the only witness examined on the point of motive, namely, PW 7 Sardara Singh, who is the brother of the deceased, turned hostile and did not support the prosecution case. In his statement under Section 161 CrPC he had said that the deceased used to get commission for bringing customers to the guest house and he owed about Rs 42,000 in that account and some dispute had taken place with the owner when he had demanded his money. However, in his statement in Court he denied to have given any such statement. There is no such principle or rule of law that where the prosecution fails to prove the motive for commission of the crime, it must necessarily result in acquittal of the accused. Where the ocular evidence is found to be trustworthy and reliable and finds corroboration from the medical evidence, a finding of guilt can safely be recorded even if the motive for the commission of the crime has not been prove. In State of H.P. v. Jeet Singh 1999 SCC (Cri) 539 it was held that no doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no offence was committed if the prosecution failed to prove the precise motive of the accused to commit it, as it is almost an impossibility for the prosecution to unravel the full dimension of the mental disposition of an offender towards the person whom he offended. In Nathuni Yadav v. State of Bihar 1998 SCC (Cri) 992 it was held that motive for doing a criminal act is generally a difficult area for prosecution as one cannot normally see into the man of another. Motive is the emotion which impels a man to do a particular act and such impelling cause need not necessarily be proportionately grave to do grave crimes. It was further held that many a murder have been committed without any known or prominent motive and it is quite possible that the aforesaid impelling factor would remain undiscoverable. In our opinion, in the facts and circumstances of the case, the absence of any evidence on the point of motive cannot have any such impact so as to discard the other reliable evidence available on record which unerringly establishes the guilt of the accused.” 18. It was held by the Hon’ble Apex Court in Yunus Vs. State of M.P. 2003 (1) SCC 425:- “The prosecution in the present case has failed to prove the motive. Failure to prove motive for crime in our view is of no consequence. The role of the accused persons in the crime stands clearly established. the ocular evidence is very clear and convincing in this case. The illegal acts of the accused persons have resulted in the death of a young boy of 18 years. It is also well settled law that establishment of motive is not sine quo non for proving the prosecution case.” 19. The Hon’ble Apex Court has affirmed the above view in its latest decision in the case of Bhimapa chandappa Hasamani Vs. State of Karnataka 2007 (1) SCC(Cri) 456). The Hon’ble Apex Court has held in Ramkrushna Vs. State of Maharashtra 2007 AIR SCW 3134 that:- “18. The High Court might not have dealt with the question of motive elaborately but when the presence of the appellant with Balram has been established, motive takes a back seat. Appellant must have come to the place of occurrence. He came with a knife. The knife injuries were found. Even if the prosecution has not been able to establish as to the exact role played by each of the accused, the fact that both the accused had common intention to commit the crime stood established. Submissions of the learned counsel for the State in this behalf are of some significance. The learned Trial Judge as also the Trial Court cannot be said to have committed any error in relying upon the testimony of the P.W.3 in part. It is in our opinion permissible in law. (See Soma Bhai Vs. State of Gujarat AIR 1975 SC 1453)” Therefore, I do not find any force in the contention raised by learned counsel for the appellants. 20. It was further contended on behalf of the appellants that the incident took place in the intervening night of 1718.07.1994 at about 12:00 O’clock. In the morning, the injured persons were taken to Uttarkashi hospital and thereafter the report was lodged in the police station Uttarkashi instead of lodging it in the Patwari Chauki which is only about 3- 4 kms away from the place of incident. It was further contended that there was a Public Health Centre (P.H.C.) in between the hospital and the place of incident, but the injured were not taken before the P.H.C.; the report was lodged after the medical examination; and it was prepared falsely against the appellants. Learned A.G.A. refuted the contention and contended that Dr. S. D. Joshi PW 4 has stated in his evidence that the condition of Baldev Singh PW1 was not good and he was admitted in the hospital. It was quite natural that the relatives of the injured would first take the injured to the hospital and thereafter they would like to proceed to avail the legal remedies against the accused persons. I am completely in agreement with the contention of the learned A.G.A. that if any incident is committed, it would be the first preference of the relatives of the injured to take them to the hospital to save their lives. Learned counsel for the appellants has pointed out that the injuries were simple so it was not necessary to rush them to the hospital. It has come in the evidence of Dr. S. D. Joshi PW4 that the condition of the Baldev Singh PW1 was unsatisfactory so he was admitted in the hospital. It is also in the evidence that he was taken to Nursing Home, Dehradun where he remained admitted for medical treatment. Looking to the conditions of the injured it was quite natural that the report was not lodged at Patwari Headquarter which was about 3-4 kms away from the place of incident. It is also in the evidence that P.H.C. would fall in between the way of Uttarkashi hospital and the place of incident. It is