IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL (Chapter VIII, Rule 32(2)(b) Description of Case Criminal Appeal No. 185 of 2007 (Old No. 2305/1983) With Criminal Appeal No. 151 of 2007 With Criminal Appeal No. 186 of 2007 Date of decision : 18th September, 2007 A.F.R. (Approved for Reporting) Not approved for reporting Date : 18.09.2007 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. 185 of 2007 (Old No. 2305/1983) Gendan Lal S/o Dodh Ram R/o Village Khunwara Police Station Sitarganj District Nainital …Appellant Versus State of U.P. … Respondent With Criminal Appeal No. 151 of 2007 Dodh Ram S/o Sri Dalchan R/o Village Khunwara Police Station Sitarganj District Nainital …Appellant Versus State of U.P. … Respondent With Criminal Appeal No. 186 of 2007 1. Baldeo S/o Nand Ram 2. Babu Ram S/o Nand Ram 3. Ram Bhrosey aila Chhutken S/o Nand Ram 4. Nand Ram S/o Behari All R/o Village Khunsera, Police Station Sitarganj District Nainintal …Appellants Versus State of U.P. … Respondent Mr. R.S. Sammal, Advocate with Mr. Prem Kaushal and Vishal Singh, Advocates for the appellants Mr.G.S.Sandhu, learned Government Advocate for the respondent/State Coram : Hon’ble Rajeev Gupta, C.J. Hon’ble J.C.S. Rawat. J. JUDGMENT Per Hon’ble J.C.S. Rawat, J. Since the above three Criminal Appeals have arisen out of the common impugned judgment and order dated 13.09.1983, passed by Sri V.S. Bajpai, the then Special Judge (Addl. Sessions Judge), Nainital in Sessions Trial No. 163 of 1981, hence all these appeals have been heard together and are being disposed of by this common judgment. By the impugned judgment and order, the appellants Baldev, Gendan Lal, Babu Ram, Ram Bharose alias Chutkan, Dodh Ram and Nand Ram have been convicted & sentenced to undergo imprisonment for life under section 302/149 Indian Panel Code, 1860 (for brevity as I.P.C.) and R.I. for a period of 4 years under section 307/149 I.P.C. Appellants Baldev, Gendan Lal, Babu Ram and Ram Bharose alias Chutkan were also convicted and sentenced to undergo R.I. for a period of one year under section 148 I.P.C. Appellants Dodh Ram and Nand Ram were also convicted and sentenced to undergo R.I. for a period of one year under Section 147 I.P.C. It was further directed that aforesaid sentences shall run concurrently. 2. The prosecution story, in nutshell, is that complainant Nem Chand, his father Udai Ram, his cousin Govind Ram and the accused persons belonged to village Khunsera. The accused/appellants used to bear enmity against complainant and his family members for quite some time. The reason of enmity was that a road was to be constructed in village Khunsara and Udai Ram, father of complainant approached the authorities concerned to change the route of road so that it might pass in front of his ‘Crusher’. The authority concerned accepted his request and construction work was started in which certain land of villagers including accused persons was acquitted by the authority concerned. On 06.05.1981, complainant Nem Chand, his father Udai Ram and his cousin Govind Ram went to the house of Ram Lal to attend the ‘gauna’ ceremony of his daughter. When they were returning home at about 9:00 p.m., all the accused persons emerged from backside at ‘tirah’ near the shop of Makhan Lal and surrounded them. Accused Nand Ram and Bodh Ram were armed with lathis, accused Baldev & Ram Bharose alias Chutkan were armed with tabal; and accused Gendan Lal & Babu Ram were armed with ballam. At once, all the accused persons started beating complainant Nem Chand, his father Udai Ram and his cousin Govind Ram with lathis, ballam and tabal. On a hue and cry Om Prakash, Roshan Lal, Kundan Lal PW7, Sirajuddin PW3 and Babu Ram witnesses of the incident arrived on the spot and challenged the accused persons. The accused persons fled away from the spot with their weapons. Complainant Nem Chand, his father Udai Ram and his cousin Govind Ram had sustained the injuries on their persons and fell on the ground. The witnesses had seen the incident in the light of gas lantern (petromax) which was burning in the shop of Makhan Lal situated near the place of occurrence. Thereafter, the witnesses brought the injured to their house. Complainant Nem Chand PW1 wrote a written report Ex.Ka.1 and then went to the police station Sitarganj by a tractor trolley. Complainant Nem Chand PW1 lodged the F.I.R. in the Police Station Sitarganj. On the basis of the F.I.R., chick report (Ex.Ka.6) was prepared and necessary entry was made in the General Diary. Thereafter, the injured were sent to hospital for medical examination. Dr. Ram Swaroop PW6 medically examined the injured persons. On 07.05.1981 at about 4:40 a.m. Udai Ram died in the hospital. Thereafter, the case was converted under section 302 I.P.C. against the accused persons. The case was investigated by S.I. Ramji Lal who recorded the statement of the witnesses; visited the place of occurrence on 07.05.1981; prepared the site plan Ex.Ka.16; inquest report and other connected papers. He sent the dead body for post mortem at Civil Hospital Haldwani. After completing the investigation, he submitted the chargesheet (Ex.Ka.19) before the court. 3. The accused/appellants were charged u/s 148, 302/149 and 307/149. The accused/appellants denied the charges and claimed to be tried. 4. The prosecution in support of its case examined as many as ten witnesses. Nem Chand PW1 is informant and injured eyewitness of the incident. He is the son of deceased Udai Ram. Govind Ram PW2 is other injured eyewitness of the incident. He is the cousin brother of informant. The prosecution has also adduced the evidence of eyewitnesses Sirajuddin PW3 and Kundan Lal PW7. Dr. P.H. Gupta PW4 is the medical officer who had conducted the post mortem of deceased Udai Ram. Dr. Ram Swaroop PW6 is the Medical Officer who had medically examined the injured persons. Constable Som Dev Sharma PW8 has prepared the chick F.I.R. and entered the case against the accused in the General Diary. He also sent the injured to hospital for medical check up. S.I. Ramji Lal PW9 is the Investigating Officer who investigated the case and submitted chargesheet Ex.Ka.19. Narpal Singh PW10 is the Constable who accompanied the injured from the police station to P.H.C. Sitarganj for medical examination. The prosecution has also filed the affidavit of Const. Suresh Kumar PW5 who had taken the dead body of Udai Ram to Civil Hospital, Haldwani for post mortem. 5. The accused/appellants 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 due to enmity. 6. The learned Special Judge (Addl. Sessions Judge) on appreciation of the evidence held accused-appellants guilty of the offences charged against them and convicted & sentenced them as mentioned above. 7. We have heard 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 Udai Ram, Nem Chand PW2 and Govind Ram PW3 sustained the injuries at the spot on the date of occurrence and thereafter, they were taken to P.H.C. Sitarganj where Dr. Ram Swaroop PW6 has medically examined them on the same night. Injured Udai Ram was examined by Dr. Ram Swaroop PW6 on 06.05.1981 at 11:20 and found the following injuries on his person:- (1) A lacerated wound 8cm x .5 cm x bone deep over the scalp at the vertex right to the mid line. Fresh blood and clotted blood present. Advised X-Ray. (2) A lacerated wound 16cm x 0.8cm x muscle deep over the middle third of anterior surface of right leg. Fresh blood present. Advised X-Ray. (3) An incised triangular upward bevelled wound 2.5cm x 0.3cm x 0.3 cm over the lower part of back of chest at the level of 10th-11th ribs of left side. Fresh and clotted blood present. Edges clean cut, ends pointed. Doctor has opined that all the injuries were fresh in duration. Injury No.1 and 2 had been caused by blunt objects and injury No. 3 had been caused by some sharp edged and pointed object such as bhala. 9. Injured Udai Ram died on 07.05.1981 at about 4:00 in the morning at P.H.C., Sitarganj. The dead body of Udai Ram was sent for post mortem to Civil Hospital, Haldwani. Dr. P.H. Gupta PW4, Autopsy Surgeon, conducted the postmortem of deceased Udai Ram on 07.05.1981 at about 3:20 p.m. and found the following ante mortem injuries on the person of the deceased:- (1) Stitched wound 9cms over right side head 11cms above the right ear. (2) Traumatic swelling 5cms x 8xms over left side head just above left ear. (3) Traumatic swelling 3cms x 2 cms over right side head just above the right ear. (4) Stitched wound 2 cms over the back part of left flank 23cms from umbilicus. (5) Stitched wound 14 cms over the front and middle part of right leg. (6) Abrasion 1cm x 1 cm over back and lower part of left forearm. (7) Traumatic swelling 5 cms x 4 cms over right side of chest internal to the nipple. (8) Traumatic swelling 4 cms x 4 cms over the dorsum of right foot. In the opinion of Medical Officer, the death of the deceased was caused due to ante mortem injuries sustained by him. The Medical Officer further opined that the deceased died in coma which was the result of the head injury. Thus, it is amply proved that the deceased died on account of the injuries sustained by him on the date of occurrence. 10. Dr. Ram Swaroop PW6, Medical Officer has also medically examined injured Nem Chand PW1 on 07.05.1981 at 00:50 a.m. and found the following injuries on his person:- (1) Multiple lacerated wounds (four in number) over the crown of the skull. Measurement ranges from 2cm to 6cm in length. 0.2xm to 0.8 cm in breadth and from 0.2cm to 0.8cm deep. Fresh blood present. (2) A contusion over the upper part of external surface of left arm 0.5cm x 1.5cm purple in colour. Painful and tender. (3) A contusion 4cm x 1.5 cm over the right shoulder. Purple in colour. Painful and tender. (4) A contusion across the upper part of back 22cm x 1.8 cm with clean intervening area giving the appearance of two parallel purple streaks. Painful and tender and purple in colour. (5) An abraded contusion 2cm x 1.5 cm over the outer surface of right forearm near the elbow. Brownish abraded area and purple contused area. (6) Contused swelling 4cm x 2cm over the back of right forearm in middle. Painful and tender. (7) (Wrongly numbered as 6 in the injury report, Ext. Ka –4). An abraded swelling 3cm x 2cm over the inner surface of right knee. Painful and tender. Abraded area brownish. (8) Pain and tenderness over the bridge of nose. Liquid blood and clotted blood in both nostrils. Advised X-Ray. (9) Pain and tenderness over the right side of face just in front of right ear mandibular. Advised X- Ray. The Doctor has opined that all the injuries were fresh in duration and had been caused by some blunt objects. 11. Dr. Ram Swaroop PW6, Medical Officer has also medically examined the injured Govind Ram PW2 on 07.05.1981 at 00:20 a.m. and found the following injuries on his person:- (1) An incised wound roughly triangular over the front of upper part of abdomen of left side 8cm above to the left navel. Edges clean cut. Ends pointed. Margins purplishly contused. Measures 2cm x 0.8 cm. The left side is slightly belevelled. Hence cannot be ascertained whether abdominal cavity has been penetrated or not. Clotted and fresh blood present. Catheter, when put into wound, perpendicular to the skin reaches to a depth of 1.2cm. (2) A lacerated through and through wound over the upper lip above to left corner of mouth and lying horizontally. Measures 1.5 cm x 0.2 cm. Clotted and fresh blood present. (3) First molar tooth of upper jaw on left side is broken. Clotted blood present. Tartar present. Pyorrhea absent. Advised X-Ray. Gum lacerated and contused. (4) A lacerated wound 7.0 cm x 0.9cm x bone dep over the skull roughly in mid line from the hair line upwards. Clotted and fresh blood present. Advised X-Ray. Doctor has opined that all the injuries were fresh in duration. Injury No. 1 had been caused by some pointed, sharp edged weapon, such as, a bhala and the remaining injuries had been caused by some blunt objects. The prosecution has produced the complainant Nem Chand PW1 and Govind Ram PW2 as injured eyewitnesses; Sirajuddin PW3 and Kundal Lal PW 7 as eyewitnesses of the incident. They have categorically stated that the deceased Udai Ram as well as the injured sustained the injuries on 06.05.1981 at about 9:00 p.m. From the perusal of the above evidence, it is clearly established that the deceased Udai Ram died on account of injuries sustained by him on the date of the occurrence. It is further established that complainant Nem Chand PW1 and Govind Ram PW2 also sustained the injuries on the date of incident. 12. Now, we have to consider whether accused-appellants were liable for the offence charged against them. It is also pertinent to mention here that according to the prosecution evidence, accused-appellants assaulted the deceased Udai Ram and injured Nem Chand PW1 and Govind Ram PW2 with ballams, lathis and tabbal. Accused-appellants Gendan Lal and Babu Ram were holding ballams; accused-appellants Nand Ram and Dodh Ram were holding lathis whereas Baldev and Ram Bharose alias Chutkan were holding tabbal in their hands. 13. The prosecution has adduced the evidence of two injured eyewitnesses i.e. Nem Chand PW1 and Govind Ram PW2 who were accompanying the deceased at the time of incident. The prosecution also adduced two eyewitnesses i.e. Sirajuddin PW3 and Kundan Lal PW7 who had seen the occurrence. Nem Chand PW1 is the son of deceased Udai Ram and Govind Ram PW2 is the nephew of the deceased. According to these injured eyewitnesses, complainant Nem Chand PW1 alongwith his father Udai Ram and his cousin Govind Ram PW2 had gone to the house of Ram Lal to attend ‘guana’ ceremony of his daughter. When they were returning to their home after attending the ‘guana’ ceremony and reached near tirah, place of occurrence, at about 9:00 p.m., the accused/appellants emerged from the back of the complainant party and surrounded them. Accused/appellants Gendal Lal and Babu Ram were armed with ballams; accused Nand Ram & Dodh Ram with lathis and the accused Baldev & Ram Bharose alias Chutkan with tabbal. Accused/appellants stated that today these persons had met them and they would not go scot-free. Thereafter, all the accused/appellants started beating complainant party. The complainant party cried on which Sirajuddin PW3, Om Prakash, Roshan Lal, Kundan Lal PW7 and Babu Ram reached at the spot and they saw the incident. Thereafter, accused/appellants fled away from the scene of occurrence alongwith their weapons which they were holding in their hands. Deceased Udai Ram, Nem Chand PW1 and Govind Ram PW2 sustained the injuries on their persons and they fell on the ground. There was a shop of Makhan Lal situated at a distance of 10 paces from the place of occurrence ‘tirah’ where gas lantern was burning in which the witnesses recognized accused persons. Thereafter, the witnesses took the injured to their home. Injured Udai Ram became unconscious. Nem Chand PW1 wrote a report and thereafter went to police station to lodge the report. They were medically examined on the same night. In the morning at about 4:30 a.m. on 07.05.1981 Udai Ram died in the hospital. All the witnesses have corroborated the incident in all material particulars. They have supported the prosecution case as disclosed in the F.I.R. in all material particulars and consistently stated that appellants emerged from the back side of complainant party and they have shouted “gher lo aaj moke se mile han koi bhi jinda bach ke nhi jawe”. Thereupon, they started beating indiscriminately to complainant Nem Chand PW1, Udai Ram and Govind Ram PW2 with the weapons which they were holding in their hands at the time of the incident. We have been taken through the evidence of the eyewitnesses in extenso. Their evidence is quite consistent, natural and all the witnesses have stood the test of lengthy cross examination by the defence. Out of these four witnesses, Nem Chand PW1, Govind Ram PW2 are the injured witnesses who had sustained the injuries in the incident. Dr. Ram Swaroop PW6, Medical Officer, P.H.C. Sitarganj who examined them on the date of occurrence itself alongwith deceased Udai Ram, found that they received injuries on their persons which could be caused by some blunt objects and sharp edged pointed object on their persons. The duration of all injuries were found fresh. Nothing could be pointed out on behalf of the defence to show that the evidence of these four witnesses including the two injured witnesses is not credible and cogent. It is well settled that in a murder trial merely because a witness is interested or inimical, his evidence cannot be discarded which is otherwise found to be trustworthy. In the present case, we are of the view that the evidence of these witnesses is credible more so when Nem Chand PW1 and Govind Ram PW2 received the injuries in the same incident. 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. they are related to each other. We have no reason to disbelieve their testimony. Similarly, being relatives, it would be their endeavour to see that the real culprits are punished and normally they would not implicate wrong persons in the crime, so as to allow the real cuprits to escape unpunished. The Hon’ble Apex Court has held in Munshi Prasad Vs. State of Bihar 2002 SCC (Cri) p/175 :- “The issue, therefore, is whether the evidence available on record is otherwise trustworthy and an acceptable piece of evidence: in the contextual facts the answer is in the affirmative and both the trial court and the High Court have also considered the same to be so. (ii) A complaint focused that except the interested witnesses none else from the nearby residential areas has been examined – this is so: it is the quality of the evidence and not the quantity, which is required. The crux of the issue being has the prosecution been able to bring home the charges with the evidence available on record – if the evidence on record is otherwise satisfactory in nature and can be ascribed to be trustworthy, an increase in the number of witnesses cannot be termed to be a requirement for the case ………………………………………..” 14. 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 witnesses, 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. If 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 may 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.” 15. The Hon’ble Apex Court has held in Kulwant Singh @ Kulbansh Singh Vs. State of Bihar 2007 AIR SCW 4124 that :- “9. There is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary, reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield the actual culprit and falsely implicate the accused. No evidence has been led in this regard.” 16. Learned counsel for the appellants further contended that the prosecution has admitted that there were other witnesses, namely, Om Prakash, Roshan Lal and Babu Ram but they were not produced before the Court. Learned G.A. refuted the contention. It is true that if a material witness, who would unfold the genesis of the incident or an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which could have been supplied or made good by examining a witness who though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the court to draw an adverse inference against the prosecution by holding that if the witness would have been examined it would not have supported the prosecution case. if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non- examination of such other witnesses may not be material. In determining as to whether any witness is necessary or not, the court should ask itself as to whether in the facts and circumstances of the case it was necessary to examine such other witnesses, and if so whether such witness was available to be examined and yet was being withheld from the court. If the answer be positive then only a question of drawing an adverse inference may arise. If the witnesses already examined are reliable/trustworthy and the testimony coming from their mouth is unimpeachable the court can safely act upon it, uninfluenced by the factum of non-examination of other witnesses. In the present case we find that there are at least 4 witnesses including two injured witnesses – whose presence at the place of the incidents cannot be doubted at all. The genesis of the incident is brought out by these witnesses. The learned trial court has on appreciation of evidence held that the murder of Udai Ram took place near tirah on 06.05.1981 in presence of Nem Chand PW1 and Govind Ram PW2. The trial court has minutely scrutinized the statements of all the witnesses and found them consistent and reliable. We do not find any infirmity in the findings recorded by the trial court. With the assistance