IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL COURT’S ORDER WHETHER THE CASE IS OR IS NOT APPROVED FOR REPORTING [Chapter VIII, Rule 32(2) (b)] Description of case Crl. Appeal No. 1076 of 2001 Decided on: March 10, 2008 A.F.R. (Approved for Reporting Not approved for Reporting Date 10.03.2008 (Initial 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. Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 1076 of 2001 (Old No. 508 of 1993) Raju Naai S/o Khacheru Naai Resident of Purana Tanga Stand, Har Ki Pauri, Police Station Kotwali, District Haridwar. ………… Appellant Versus The State ………... Respondent Mr. Lalit Sharma, Amicus Curiae for the appellant. Mr. Amit Bhatt, Addl. Govt. Advocate assisted by Mr. M.A. Khan, Brief Holder for the respondent-State. Coram: Hon’ble Prafulla C. Pant, J. Hon’ble Dharam Veer, J. Hon. Prafulla C. Pant, J. (Oral) This appeal, preferred under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), is directed against the judgment and order dated 30.03.1993 / 31.03.1993, passed by the then learned Sessions Judge, Haridwar, in Sessions trial No. 427 of 1991 along with Sessions Trial No. 437 of 1991, whereby accused / appellant Raju has been convicted under Section 302 of the Indian Penal Code, 1860 (hereinafter referred as I.P.C.), and one punishable under Section 25 / 4 of the Arms Act, 1959. He is sentenced to undergo imprisonment for life under Section 302 of I.P.C and rigorous imprisonment for a period of one year under Section 25 / 4 of the Arms Act. 2) Heard learned counsel for the parties and perused the lower court record. 3) Prosecution story, in brief, is that on 28.08.1991, at about 09:00 A.M., Ravi (deceased) was in his tea shop situated in Chamgadar Taapu, Haridwar. His brother-in- law P.W. 1 Virendra Kumar, servant P.W. 2 Saajan Kumar, and another servant P.W.11 Karan Singh were also present in the shop. Accused/appellant Raju came in the shop and demanded in an attempt to extort money, Rs. 2,000/- from Ravi. Ravi told him that he is unable to pay Rs. 2,000/-. On this, accused / appellant Raju got enraged and took out knife from his pocket and started giving blows with knife on the person of Ravi. He gave several blows with knife and ran away from the place of incident towards Rishikesh. The incident was so gruesome that the nearby shopkeepers shuttered down their shops and started fleeing. After accused / appellant Raju left the shop, P.W. 1 Virendra Kumar went to look for a three wheeler, but could not find any as no one was ready to accompany him due to the fear of accused / appellant Raju. Somehow after two hours one three wheeler, which was coming from the side of Rishikesh stopped and agreed to take the injured to hospital. However, by the time Ravi was taken to hospital he had already succumbed to the injuries. Thereafter, P.W. 1 Virendra Kumar lodged the first information report (Ext. A-1) on the very day i.e. 28.08.1991, at about 01:40 P.M. P.W.8 Head Constable Tilak Ram registered the case on the basis of the first information report and prepared the check report (Ext. A -10) and made necessary entry in the general diary at serial No. 36, a copy of extract of which is Ext. A -11. P.W. 13 Sub Inspector B.S. Negi took up the investigation and he accompanied with P.W. 4 Sub Inspector D.N. Shukla and other constables proceeded to inspect the spot. P.W. 13 Sub Inspector B.S. Negi got prepared the inquest report (Ext. A-2) with the assistance of Sub Inspector D.N. Shukla (P.W. 4), sketch of the dead body (Ext. A -4), police form No. 13 (Ext. A -5) and letter (Ext. A-6) to the Chief Medical Officer requesting him to conduct postmortem examination. The dead body of Ravi was sent for postmortem examination. On 29.08.1991, at 11:30 A.M., the autopsy on the dead body was conducted by P.W. 5 Dr. Harikishan Fuloria, who prepared the postmortem examination report (Ext. A-9). The Investigating Officer interrogated the witnesses and proceeded on 29.08.1991 to arrest the accused. The accused / appellant Raju could be arrested only on 01.09.1991, at about 07:00 A.M. by Sub Inspector D.N. Shukla. After arrest of the accused / appellant Raju, at his pointing out, knife (Ext. 1) used in the crime was recovered and memorandum (Ex. A -8) was got prepared with the help of Sub Inspector D.N. Shukla (P.W. 4). During investigation blood stained soil and simple soil were taken from the spot. Apart from that, blood stained clothes from accused and that of the deceased were also taken in to possession by the Investigating Officer. The same were sent for chemical examination. The report (Ext. A -21) of the Chemical Examiner shows that on the blood stained soil and blood stained clothes contained human blood. After completion of investigation, charge sheet (Ext. A -18) in respect of offence punishable under Section 302 of I.P.C. was filed by the Investigating Officer B.S. Negi (P.W. 13) against accused / appellant Raju. After the recovery of knife used in the crime, a separate crime was registered and charge sheet (Ext. A -20) was filed by another Investigating Officer, P.W. 14 Mohan Kumar Saini, who investigated said crime registered under Section 25 / 4 of Arms Act, 1959. 4) The Magistrate, on receipt of charge sheet relating to offence punishable under Section 302 of I.P.C., 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. After the case was committed to the court of Sessions, the charge sheet relating to offence punishable under Section 302 of I.P.C. was registered as Sessions Trial No. 427 of 1991. Learned trial court, after hearing the parties, on 09.01.1992, framed charge of offences punishable under Section 302 of I.P.C. against the accused Raju. Meanwhile, since the charge sheet relating to offence punishable under Section 25 / 4 of Arms Act was connected with the offence punishable under Section 302 of I.P.C., the Magistrate appears to have committed said case also, after framing of the charge, which was registered as separate Sessions Trial No. 437 of 1991. Accused / appellant Raju pleaded not guilty to both the charges and claimed to be tried. Both cases were tried together by the learned Sessions Judge. The prosecution got examined P.W. 1 Virendra Kumar (complainant and eyewitness); P.W. 2 Saajan Kumar (another eyewitness); P.W. 3 Ghanshyam (scribe of the report Ext. A -1); P.W.4 Sub Inspector D.N. Shukla (who prepared the inquest report and other papers to assist the I.O.); P.W. 5 Dr. Harikishan Fuloria (who conducted the postmortem examination on the dead body of Ravi); P.W. 6 Head Constable Shambhu Dutt (witness of recovery of knife); P.W. 7 Constable Ved Prakash Sharma (who took the blood stained sealed materials for chemical examination); P.W. 8 Head Mohairer, Tilak Ram (who prepared the check report Ext. A -10 of the F.I.R.); P.W. 9 Constable Ajeet Singh (who made entries in the general diary, copies of extract of which is Ext. A -12 and Ext. A - 13); P.W. 10 Constable Omkar Singh (who guarded the dead body after it was sealed till the autopsy was done); P.W. 11, Karan Singh (declared hostile); P.W. 12 Bitto (a witness of recovery of knife on the pointing out of the (accused); P.W. 13 Sub Inspector B.S. Negi (Investigating Officer of the crime relating to offence punishable under Section 302 of I.P.C.) and P.W. 14, Mohan Kumar Saini (another Investigating Officer of the crime relating to offence punishable under Section 25 / 4 of Arms Act). Court witness, C.W. 1 Ashok Kumar was also examined. The oral and documentary evidence along with the material exhibits were put to the accused / appellant under Section 313 of Cr.P.C. by the trial court, in reply to which he alleged that same to be false. In defence, D.W. 1 Mohan Lal Sachdeva, an Advocate Notary, was got examined to prove the affidavit filed by Saajan Kumar. After hearing the parties. The trial court found accused / appellant Raju guilty of both the charge of offences punishable under Section 302 of I.P.C. and the one punishable under Section 25 / 4 of Arms Act, 1959. After hearing the parties on sentence, the convict is sentenced to undergo imprisonment for life under Section 302 of I.P.C. and he was awarded one years’ rigorous imprisonment under Section 25 / 4 of Arms Act. Aggrieved by said judgment and order dated 30.03.1993 (convicting the accused) / 31.03.1993 (sentencing the accused), passed by the Sessions Judge, Haridwar, in Sessions Trials No. 427 of 1991 and 437 of 1991, this appeal was preferred by the convict before the Allahabad High Court on 05.04.1993, where it was admitted on 10.05.1993. The appeal is received by transfer to this Court under Section 35 of the U.P. Re-organization Act, 2000, for its disposal. 5) Before further discussion, we think it just and proper to mention here the ante mortem injuries found on the person of the deceased at the time of postmortem examination, which are recorded by P.W.5, Dr. Harikishan Fuloria, who conducted the postmortem examination and prepared the autopsy report (Ext. A -9). The same are being reproduced below:- i) “Incised wound 3 cm X 1 cm X muscle deep on the left side of neck, 5 cm below left ear, oblique in direction tailing downward left caroted vessels are cut. ii) Incised wound 2 cm X 1 cm X bone deep on left side scalp, 10 cm from left ear at 12 O’ clock position, tailing downward and to left. iii) Incised wound 2 cm X 0.25 cm X bone deep on center of scalp. iv) Incised wound 3 cm X 1 cm X chest cavity deep on left side of chest, left sterno clavicular about – tailing obliquely downward. v) Incised wound 2 cm X 0.25 cm X skin deep on the nose, transverse in direction. vi) Incised would 3 cm X 1 cm X muscle deep on right side neck, 10 cm below right ear at 7 O’ clock position obliquely downward in direction. viii) Multiple small abrasion each measuring about 0.5 cm X 0.5 cm on front and right side of chest in an area of 10 cm X 12 cm. viii) Incised wound 1.5 cm X 1 cm X muscle deep on outer aspect of left arm in its middle, transverse in direction. ix) Incised wound 1 cm X 1 cm X muscle deep on back of left elbow. x) Incised wound 1 cm X 1 cm X bone deep on back of left elbow 1 cm from injury No. (ix). xi) Incised wound 3 cm X 2 cm X muscle deep on back of left arm oblique in direction. xii) Incised wound 1 cm X 0.5 cm X muscle deep on back of left arm 2 cm above injury No. (xi). xiii) Incised wound 1 cm X 0.5 cm X muscle deep on front side of left hand. xiv) Incised wound 2 cm X 0.5 cm X muscle deep on the front of left forearm, 2 cm below elbow. xv) Abrasion 0.25 cm X 0.1 cm on front of right arm. xvi) Incised wound 2 cm X 1 cm X muscle deep on right side back at the level of T-8. xvii)Incised wound 3 cm X 0.5 cm X muscle deep on right side back chest at the level of T-10. xviii)Incised wound 1 cm X 0.25 cm X muscle deep on right side back chest, 1 cm away from injury No. (xviii). xix) Incised wound 1 cm X 0.25 cm X muscle deep on right side back at the level of T-12. xx) Incised wound 3 cm X 0.25 cm X muscle deep on back of right side at the level of L-11 (lumber vertebra) 8 cm from midline. xxi) Incised wound 1 cm X 0.25 cm X muscle deep on right side back at the level of L-11, 3 cm from injury No. (xx). xxii) Incised wound 1 cm X 0.25 cm X muscle deep on right side back, 1 cm away from injury No. (xxi). xxiii) Incised wound 3 cm X 0.5 cm X muscle deep on right side back at the level of L-2. xxiv) Incised wound 4 cm X 2cm X bone deep over left scapula.” On internal examination, the chest cavity was found containing 1000 CC blood. The left bladder and left lung were found cut. The Medical Officer opined that the cause of the death was shock and haemorrhage as a result of ante mortem injuries. The Medical Officer further opined that the incised wound recorded above could have been caused by knife (Ext. 1). From the evidence of the Medical Officer read with the postmortem examination report it is evident that Ravi (deceased) was brutally murdered as the incised wounds alone were 22 in number. 6) P.W. 1 Virendra Kumar, brother-in-law of the deceased, an eyewitness has narrated the prosecution story and stated that on 28.08.1991, at about 09:00 A.M., he was with the deceased in his tea shop in Chamgadar Taapu. The witness further states that the servants Saajan Kumar (P.W. 2) and Karan Singh (P.W. 11) were also present in the shop when accused Raju entered in the shop and demanded Rs. 2,000/- on which there were altercation between the deceased and the accused. According to this witness the deceased told accused that he is unable to pay such a large sum, but the accused insisted on immediate payment. Thereafter, suddenly accused Raju took out knife from his right pocked and started giving blows with the knife on the person of Ravi, who after getting injured fell down. P.W.1, Virendra Kumar further states that after the incident accused ran away with his knife towards Rishikesh. He further told that when Saajan (P.W. 2) was sent for taking three wheeler, he returned empty handed after two hours and told that due to the fear of Raju no one is ready to come. Thereafter, one three wheeler, which was coming from the side of Rishikesh was somehow made to agree to take the injured to the hospital. However, on his way to hospital, Ravi succumbed to the injuries. At the hospital the doctors told that Ravi has already died. This witness further states that with the help of his brother Ghanshyam (P.W. 3) he got scribed the first information report (Ext. A -1). The witness has further stated that due to the fear of Raju, after the incident, other nearby shopkeepers left their shops and ran away. 7) The above statement of P.W. 1 Virendra Kumar is corroborated by another eyewitness P.W. 2, Saajan Kumar, who was a servant in the shop of the deceased. P.W. 3, Ghayshyam Das has corroborated the fact that he scribed the first information report (Ext. A -1) on dictation on P.W. 1 Virendra Kumar. P.W. 11 Karan Singh though, admitted that he worked with Ravi in his shop, but this witness was declared hostile, as he told that he did not witness the incident and had already gone after his breakfast and came back at about noon. However, he admitted having put his thumb impression in the inquest report. Affidavit proved by D.W. 1 Mohan Lal Sachdeva appears to have been sworn by Saajan Kumar under threat of the accused. 8) Apart from the medical evidence and the oral testimony discussed above, to prove the charge, the prosecution got examined the witnesses relating to fact that on the pointing out of accused / appellant knife (Ext. 1) used in the crime, was recovered. P.W. 4 Sub Inspector D.N. Shukla, P.W. 12 Bitto and P.W. 13 Investigating Officer B.S. Negi have proved this fact on the record. The Chemical Examiner’s report (Ext. A -21) also corroborates the fact that blood stained knife (Ext. 1) and the blood stained clothes of the accused contained human blood. 9) Having gone through and examined the evidence on record, we are in agreement with the trial court that the prosecution has been successful in proving the charge of offence punishable under Section 302 of I.P.C. and the one punishable under Section 25 / 4 of Arms Act against accused / appellant Raju. From the evidence adduced by the eyewitnesses read with postmortem report and the Chemical Examiner’s report, it is established beyond reasonable doubt that Raju committed murder of Ravi in a brutal manner, when he refused to oblige the accused in his attempt to extort money from the deceased. It is also proved beyond reasonable doubt that the accused / appellant was in unlawful possession of knife (Ext. 1) with regard to which he had no license. 10) Mr. Lalit Sharma, learned Amicus Curiae assisting the Court on behalf of the appellant argued that in the inquest report and sketch of the dead body, there is mention of 27 injuries on the person of deceased, while in the postmortem examination report only 24 injuries are enumerated. We have carefully gone through the evidence and found that the 24 injuries recorded in the postmortem examination report include injury No. vii, which is multiple small abrasions. As such, neither the discrepancy in our opinion is material nor does it create any doubt in the truthfulness of the prosecution story. 11) On behalf of the appellant it is also argued that P.W. 12 Bitto, witness of recovery of knife is brother of the deceased and is not an independent witness. No doubt, the said witness is brother of the deceased, but it is a matter of common knowledge that generally the members of public do not like to become witnesses in a criminal cases. Here we think it just and proper to mention that P.W. 13 Investigating Officer B.S. Negi has stated on oath that other persons accept Bitto did not agree to become witness, as such, only Bitto accompanied the police party to the recovery spot. 12) Learned Amicus Curiae appearing on behalf of the appellant drew our attention to the date ‘08.08.1991’ mentioned in the statement of P.W. 2 Saajan Kumar and submitted that the incident has not taken place on 28.08.1991, as told by P.W. 1 Virendra Kumar, as such it cannot be said that the charge is proved beyond reasonable doubt. The statement of P.W. 1 Virendra Kumar, an eyewitness, gets corroboration from the postmortem examination repot. In said report (Ext. A -9) it is clearly mentioned that dead body was one day old. In the statement of P.W. 2, a clerical error appears to have been crept in regarding the date in para 3 of his statement. From the other Paras of the statement of the witness, it is clear that witness P.W. 2 has signed the inquest report on 28.08.1991, after the incident and is also witness of blood stained soil and simple soil taken from the place of incident, a memorandum of which is Ext. A -3. Said document is also dated 28th August 1991. 13) Lastly, it is submitted on behalf of the appellant that the distance between the police station and the place of incident is only two kilometers, as such, the reporting of the incident at 13:40 hours in respect of the incident which had taken place at 09:00 A.M., cannot be said to be a prompt one as there is delay of four hours. We do not find substance in the argument as there is sufficient explanation on record in the statements of the eyewitnesses that they made every attempt to get the three wheeler earliest possible to take the injured to hospital, but no one was ready due to the fear of accused Raju. It is natural conduct on the part of the witnesses that they first wanted to save life of the injured and made every attempt to take him to hospital at the earliest. Report was lodged only after the injured has succumbed to the injuries before he reached the hospital. In the circumstances, it cannot be said that the first information report is a delayed one. 14) For the reasons as discussed above, we do not find any merit in this appeal, which is liable to be dismissed. The appeal is dismissed. The conviction and sentences awarded by the trial court in respect of offences punishable under Section 302 of I.P.C. and the one punishable under Section 25 / 4 of the Arms Act, 1959, are hereby affirmed. If the accused / appellant Raju is on bail, his bail stands cancelled. The Registry is directed to send the lower court record back to the trial court concerned (Sessions Judge, Haridwar) to ensure that the accused / appellant serves out the sentences awarded against him. (Dharam Veer, J.) (Prafulla C. Pant, J.) Dt. March 10, 2008. H. Negi