Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 31 of 2002 Anand Ram alias Anandi ...…………. Appellant versus State of Uttarakhand ...…………. Respondent along with Criminal Appeal No. 41 of 2002 et Ram ...…………. Appellant Je versus State of Uttarakhand ...…………. Respondent Mr. Vinod Sharma, Advocate with Mr. Amish Tiwari, Advocate for the appellants. Mr. Amit Bhatt, Addl. Government Advocate, for the State. JUDGMENT Coram : Hon’ble Barin Ghosh, C. J. Hon’ble U.C. Dhyani, J. Per: U.C. Dhyani, J. Both these criminal appeals are directed against the same judgment and order dated 25.01.2002, passed by Sessions Judge, Dehradun, in Sessions Trial No. 122 of 1997, whereby accused / appellants Anand Ram alias 2 Anandi and Jeet Ram have been convicted under Section 457 of I.P.C. and sentenced to rigorous imprisonment for a period of two years. Each of the accused / appellants has been convicted in respect of offence punishable under Section 307 read with Section 34 of I.P.C and sentenced to rigorous imprisonment for a period of seven years and directed to pay a fine of ` 2,000/- each, in default of payment of which they are directed to undergo rigorous imprisonment for a period of six months. Both of them have also been convicted under Section 302 read with Section 34 of I.P.C. and sentenced to imprisonment for life and directed to pay a fine of ` 5,000/- each, in default of payment of which they are directed to undergo rigorous imprisonment for a period of one year. All the sentences are directed to run concurrently by the trial court. 2. Prosecution story, in brief, is that on 16.05.1997, P.W.5 Sohan Lal (informant) was sitting in the courtyard of his house alongwith his wife Yashoda and daughter Mamta. At about 09:00 P.M. accused Jeet Ram, armed with a scissors came there alongwith his son Anand Ram alias Anandi and started hurling abuses to informant and his family members. The accused started saying as to how they are ploughing the land of Rajesh Shukla and threatened them of dire consequences. Accused Anand Ram alias Anandi caught hold of both hands of Smt. Yashoda and accused 3 Jeet Ram gave a blow with the scissors on her person. When the informant and his daughter Mamta came forward in order to save Yashoda, accused Jeet Ram assaulted Mamta also. On raising an alarm by the informant and his family P.W.3 Chandi Prasad, one Rishi Prasad, Ratan Mani and Narendra Singh etc. came on the spot. The informant with the help of others took his wife Smt. Yashoda and daughter to the Government Hospital, Rishikesh for treatment. Yashoda was declared ‘brought dead’ and Mamta was admitted in the hospital for her treatment. The informant thereafter lodged a first information report (Ext. Ka-4) with Reporting Outpost, Rani Pokhri, Rishikesh on the very day i.e. 16.05.1997. On the basis of said FIR, chick FIR (Ext. Ka-6) was prepared and crime was registered against the accused Anand Ram alias Anandi and Jeet Ram in respect of offences punishable under Section 302, 307 and 504 of I.P.C. The police took the dead body in their possession and prepared inquest report (Ext. Ka-12) and other necessary papers and the dead body was sent in a sealed cover for postmortem examination. The postmortem examination was conducted by Dr. S.C. Singhal (P.W.1) on 17.05.1993, at 02:30 P.M., who prepared autopsy report (Ext. Ka-1). The Medical Officer found one incised wound, three stab wounds and multiple contusions on the person of Smt. Yashoda as ante mortem injuries, and opined that the deceased had died of shock and haemorrhage. On the same day i.e. 16.05.1997, at 10:15 P.M., injuries on 4 the person of Km. Mamta were examined by P.W.4 Dr. M. Chand, who recorded the same in Ext. Ka-2. The Medical Officer kept the injuries under observation and in the supplementary report injury no. 1 which was stab wound on the left side of the back of chest was found to be grievous. 3. Investigation of the case was initially taken up by P.W.7 S.I. Harbir Singh. He inspected the spot, prepared site plan (Ext. Ka-8), Police Form No. 13 (Ext. Ka-12), memo of recovery of simple soil and bloodstained soil (Ext. Ka-9). Accused Jeet Ram and Anand Ram were arrested and on their disclosure bloodstained scissors used in the commission of crime was recovered and recovery memo in this regard (Ext. Ka-11) was also prepared in the presence of the witnesses. After interrogating the witnesses and on completion of investigation, charge sheet (Ext. Ka-18) was filed by P.W.8 S.I. Pramod Kumar against the accused / appellants Anand alias Anandi and Jeet Ram relating to offences punishable under Section 302, 307 and 504 of I.P.C. 4. The Magistrate, on receipt of the charge sheet, after giving necessary copies to the accused committed the case to the court of sessions for trial. Learned Sessions Judge, Dehradun, after hearing the parties, on 13.10.1997, framed charge of offences punishable 5 under Section 457, 307 / 34 and 302 / 34 of I.P.C. against the accused Jeet Ram and Anand Ram alias Anandi. Both of them pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W.1 Dr. S.C. Singhal (who conducted the postmortem examination); P.W.2 Km. Mamta (injured eyewitness); P.W.3 Chandi Prasad; P.W.4 Dr. M. Chand (who recorded the injuries on the person of Km. Mamta); P.W.5 Sohan Lal (informant and eyewitness); P.W.6 Head Constable Rajendra Singh; P.W.7 S.I. Harbir Singh (who started the investigation); P.W.8 S.I. Pramod Kumar (who completed the investigation); P.W.9 Rajesh Shukla; P.W.10 Upendra Prasad and P.W.11 Constable Arvind Kumar. In defence D.W.1. Rajendra Joshi and D.W.2 Mahendra Dutt Chamoli were examined. The oral and documentary evidence was put to the accused under Section 313 of Cr.P.C., in reply to which they alleged that the evidence adduced against them are false. The trial court found accused / appellants Jeet Singh and Anand Ram alias Anandi guilty of charge of offences punishable under Section 457, 307 / 34 and 302 / 34 of I.P.C. After hearing the parties on sentence, each one of the convicts was sentenced to imprisonment for life, and directed to pay fine of ` 5,000/- under Section 302 read with Section 34 of I.P.C. Both the convicts were also sentenced to rigorous imprisonment for a period of seven years and directed to pay fine of 2,000/- under Section 307 read with Section 34 of I.P.C. Both of them were further 6 sentenced to rigorous imprisonment for a period of two years under Section 457 of I.P.C. Aggrieved by said judgment and order dated 25.01.2002, present criminal appeals have been filed by the convicts separately. 5. It will be worthwhile to take up the ante mortem injuries first which have been recorded by P.W.1 Dr. S.C. Singhal of Doon Hospital, who prepared autopsy report after postmortem examination on dead body of Yashoda on 17.05.1993, at 02:30 P.M. The ante mortem injuries recorded in autopsy report (Ext. Ka-1) are being reproduced below:- i) Incised wound 2 cm x ½ cm x skin deep left side neck 2 cm below angle of mandible, clotted blood present. ii) Stab wound 1.5 cm X ½ cm x chest cavity deep, blood oozing out from wound. The wound is on right side chest. iii) Stab wound e/x gestric region midline muscle deep 1 cm x ½ cm, clotted blood present. iv) Stab wound right side abdomen 6 cm above umbilicus, muscle deep clotted blood present. v) Multiple contusion right side lower back in area of 6 cm x 4 cm. vi) Blood present right side angle of mouth and nostrils. 7 The Medical Officer (P.W.1 Dr. S.C. Singhal) has opined in the autopsy report that the cause of death is due to shock and haemorrhage. 6. P.W.1 Dr. S.C. Singhal was posted as Senior Physician in Doon Hospital, Dehradun on 17.05.1997. That day he conducted post mortem on the body of Smt. Yashoda Devi and found one incised wound skin deep on the left side of the neck, three stab wounds and multiple contusions. The details of all these injuries have been given at para no. 5 of this judgment. The doctor has proved his report (exhibit Ka-1). 7. P.W.2 Km. Mamta is the injured as well as eyewitness. She has deposed that the accused persons are litigating against Rajesh Shukla, whose land has been taken by them on private arrangement. Accused Jeet Ram and Anandi Prashad are her neighbours. She herself, her mother Smt. Yashoda Devi and father Sohan Lal were present at the time of occurrence. Accused Jeet Ram told her mother Yashoda Devi to relinquish claim over the land belonging to Rajesh Shukla. She has said that on 16.05.1997 at 9:00 p.m. she along with her mother and father were present in the courtyard. Accused Jeet Ram and Anandi Prasad came to their courtyard, Jeet Ram had a scissors. He started abusing and threatening them. Thereafter Jeet Ram inflicted blows of scissors on the neck of her mother. She along with her father tried to save 8 Yashoda Devi. Jeet Ram inflicted the blows of scissors on Mamta also. That blow hurt her back. Jeet Ram also inflicted blows on the abdomen of Yashoda Devi. Co-accused Anandi Prasad inflicted many a blows of scissors on her mother. Rishi Prasad and Chandi Prasad came to the place of occurrence in the meanwhile. They had also seen the occurrence. Rishi Prashad and Chandi Prasad caught hold of both the accused. Her father brought tempo and carried Yashoda to the Government Hospital, Rishikesh. In the hospital her mother was declared ‘brought dead’. Her (Mamta’s) injuries were examined by the doctor. She has also proved the scissors, (Material Exhibit-1) which was used in the commission of crime. The scissors contained deposits of blood. 8. P.W.3 Chandi Prasad is the neighbour of Sohan Lal. Jeet Ram and Anandi Prasad are also his neighbours. He said that on 16th May, 1997 at 9:00 p.m. when he was urinating, he heard the cries. When he came, he saw that Anandi Prasad and Jeet Ram were beating Yashoda Devi. Anandi Prasad caught hold of Yashoda Devi and Jeet Ram was inflicting blows of scissors on her persons. When Mamta tried to rescue her mother, then Jeet Ram inflicted blows of scissors on Mamta also. This incident took place in the courtyard of Yashoda. Yashoda and Mamta were taken to hospital, where Mamta was admitted but Yashoda was 9 declared ‘brought dead’. Rishi Ram, Narendra Singh and Sohan Lal also witnessed this incident. 9. P.W.4 Dr. M. Chand was posted as Medical Officer in S.P.S. Government Hospital Rishikesh on 16.05.1997. On that day Mamta was got medically examined by him. The doctor found stab wound with clean even incised margin. Fresh bleeding was present and the wound was muscle deep on the left side of back of chest. She was advised for x-ray of the chest. She had also pains in the back of lower part of left side of chest. The doctor has opined that injury no.1 of Mamta may be caused by some sharp edged weapon. He found fractures on the left rib in the x-ray of the chest. The injury was grievous in nature. The doctor has proved his reports (Exhibit Ka-2 and Ka-3) and x-ray plate as material (Exhibit-2). He has opined that injury no.1 may be caused by scissors on 16.05.1997 at 9:00 p.m. It was fatal in nature. 10. P.W.5 Sohan Lal is the father of Mamta and husband of Yashoda (deceased). He has deposed that on 16.05.1997 at 9:00 p.m. when Mamta was in kitchen and he along with his wife were in the courtyard, his neighbours Anandi Prasad and Jeet Ram came to them and started quarrelling about the land of Rajesh Shukla. Jeet Ram had a scissors. He started abusing them and threatened them to relinquish the claim over the land of Rajesh Shukla. He inflicted a blow of scissors on the neck of his wife. When his daughter tried to save her 10 mother, he inflicted blow of scissors on her also. In the meantime Chandi Prasad, Rishi Prasad and Narendra Prasad also came on the spot and they also saw the incident. When Jeet Ram tried to flee away from the spot, he collided with a machine and fell down. His scissors were picked up by Anandi Prasad and he too inflicted a blow on Yashoda. Anadi Prasad ran away with the scissors and Jeet Ram was lifted by Sunder Lal s/o Kishori. This witness went to hire tempo but in the meanwhile Anandi Prasad came back and inflicted yet another blow of scissors on his wife. She was taken to Government Hospital, Rishikesh where she was declared ‘brought dead’. His daughter Mamta was however admitted to hospital. This witness has proved complaint (Exhibit Ka-4) on the basis of which an FIR was lodged in Police outpost Rani Pokhri. 11. P.W.6 Head Constable Rajendra Singh has proved copy of G.D. (Exhibit Ka-5) and chik FIR (Exhibit Ka-6). The case was handed over to S.I. Harbir Singh for investigation. 12. P.W.7 S.I. Harbir Singh has conducted the investigation at some length. He has also proved site plan (Exhibit Ka-8), recovery memo of scissors (Exhibit Ka-1) prepared on the basis of disclosures of Jeet Ram and Anandi Prasad. He has also prepared site plans pertaining to recovery (Exhibit Ka-10 and Ka-11) and has also proved scissors (material Exhibit-4). 11 Thereafter this witness was transferred and investigation has handed over to S.I. P.K. Singh. 13. P.W.8 S.I. P.K. Singh has proved inquest report (Exhibit Ka-12) and other papers. He had submitted charge sheet (Exhibit Ka-18) against the accused persons. 14. P.W.9 Rajesh Shukla has deposed that he has given his land to Sohan Lal on private arrangement (batai). 15. P.W.10 Upendra Prasad has scribed the complaint according to the instructions of Sohan Lal. Thereafter Sohan Lal had signed over the complaint. 16. P.W.11 Constable Arvind Kumar is a formal witness relating to inquest report. 17. In their statements under Section 313 Cr.P.C. the accused persons have denied the incident. In his statement, Jeet Ram has said that some persons sitting in the house of Sohan Lal committed marpeet with him and dragged him to the courtyard of Sohan Lal. He got unconscious because of injuries sustained by him. Thus, the presence of Jeet Ram on the place of occurrence is substantiated by his own averment. He has also given the explanation of his injuries that some persons sitting in the residence of Sohan Lal committed marpeet with him and dragged him to the courtyard of Sohan Lal. It 12 may be noted here that learned counsel for the appellant has been arguing repeatedly before this Court that Jeet Ram was not present on the spot and the prosecution has not filed and explained the injuries caused to him. The entire defence theory propounded by learned counsel for the appellant has vanished in thin air, yet it is the duty of this Court to take up the arguments put forward on behalf of the appellants. The same will be discussed subsequently in the body of this judgment at an appropriate place. 18. Co-accused Anandi Prasad has said in his statement under Section 313 Cr.P.C. that he had gone to lodge the report pertaining to marpeet with his father and the police arrested him. No scissors were recovered on his disclosure, he has added. 19. Two witnesses have been examined in defence. D.W.1 Rajendra Joshi has said that accused Anandi Prasad is LIC agent under him. He is posted at Rishikesh. D.W.1 Rajendra Joshi had deposed that Anandi Prasad remained with him from 10:30 a.m. to 9:00 p.m. on 16.05.1997 at Rishikesh branch. This witness dropped Anandi Prasad at Natraj Chowk, Vikram Stand around 8:45 p.m. When he was cross- examined on behalf of the prosecution, he has said that he is a Development Officer in LIC for the last 11 years. He maintains the registers of proceedings. He also maintains the attendance register of the agents. He did not bring the meeting register of 16.05.1997 along 13 with him. He had admitted that the Development Officer and the agents have a field job. The testimony of this witness is not acceptable. 25 agents had come to attend the meeting on 16.05.1997 according to his own statement. All the agents must be his colleagues and acquainted with each other. Then why a Development Officer went to drop an agent to the tempo stand? A Development Officer and an agent are not equivalents. It shows the closeness of Rajendra Joshi with Anandi Prasad. Rajendra Joshi wanted to help Anandi Prasad out of way and therefore he came to depose in his favour. He did not bring the minutes of the meeting of 16.05.1997. He might have held the meeting but it is difficult for anybody to say that one remained present in the office right from 10:30 a.m. to 9:00 p.m. Moreover, the distance between village Barakot within the jurisdiction of Police Station Rishikesh where this incident took place and Rishikesh branch of LIC is not unmanageable. 20. D.W.2 Mahendra Dutt Chamoli has said that on 16.05.1997 around 9:00 p.m., when he was standing at Vikram Stand, Rishikesh, he saw Anandi Prasad. Both of them came in the same tempo. It is to be noted here that the evidence of this witness was recorded on 04.12.2001. He has got such a photogenic memory that he can remember the things by date and time, which is quite surprising. The testimony of this defence witness 14 is not acceptable to a prudent man. Therefore, his evidence is of no help to the accused / appellant. 21. It has been submitted on behalf of the learned counsel for accused / appellants that the injury report of accused Jeet Ram has not been produced by the prosecution. Accused Jeet Ram is the father, aged 81 years and Anand Ram alias Anandi is his son. It is the argument of learned counsel for the accused / appellants that accused Jeet Ram remained unconscious on the spot for ten minutes and he was lifted by one Sundar Lal. His injuries were examined on the next date of incident. He was arrested on 17.05.1997 and from the custody he was taken to the Medical Officer at 03.30 P.M., but the injury report has not been proved by the prosecution. It is submitted that the defence counsel moved an application for summoning original report. Learned Sessions Judge, Dehradun ordered it to be kept on record and the application was ignored. Learned Sessions Judge suppressed the genesis. 22. Learned A.G.A. on the other hand, submitted that the injuries of accused / appellant Jeet Ram were not examined. How do the learned counsel show that Jeet Ram was injured in the incident? Whether Doctor really examined Jeet Ram? There is nothing on record except a photocopy which is not admissible in evidence. Photocopy is no evidence. No prosecution witnesses P.W.3. Chandi Prasad and P.W.5 Sohan Lal 15 have admitted that Jeet Ram was injured when this occurrence took place. If the same has been ordered to be kept on record in the order sheet, it is no evidence. Order sheet is no evidence. If such an application was moved by the learned defence counsel before the learned trial court and Jeet Ram applied for production of evidence – had the court been satisfied that there is evidence existing on this count, the court would have ordered for the same. 23. This court is of the opinion that the accused Jeet Ram has to show the existence of that evidence. The court will not run after a bull. It is not a wild goose chase. None of the witnesses have admitted that Jeet Ram also got injured in the incident. He might have got injured otherwise, as he has said in his statement under Section 313 of Cr.P.C., but that is a different thing. The accused Jeet Ram was required to show that he got injured during this incident. Unfortunately, there is no evidence as such. Even if it was so, he was not even sent to the doctor. It has been mentioned in the copy of the General Diary that the accused Jeet Ram was not sent to the doctor. Where is the medical examination? Where is the evidence that he was medically examined? The answer is in the negative. Even if it be conceded for the sake of arguments that accused Jeet Ram was sent for medical examination, that does not mean that he was medically examined. Drinking water and drinking tea are two different things. It was an ill- 16 advised application on behalf of the accused / appellant Jeet Ram. If the learned defence counsel had moved an application under Section 165 of the Evidence Act, the learned trial court might have ordered for the production of any document or thing had the court been satisfied of the existence of such an evidence. It could have summoned the injury report of Jeet Ram, but since the doctor had not examined Jeet Ram, it was well nigh impossible for the Sessions Judge to have asked for the same, like we are still hearing the matter and if the appellants ask for the judgment, this court will not be able to provide the same as the same is not ready. 24. The learned counsel for the appellants further argued that after the incident Jeet Ram fainted on the spot and he was lifted by one Sundar Lal. It is the submission of learned counsel for the appellant that Sundar Lal should have been produced by the prosecution as its witness because only Sundar Lal can narrate true version. Learned counsel has also submitted that if Anand Ram alias Anandi was also there the question of lifting Jeet Ram by Sundar Lal did not arise. Only Anand Ram alias Anandi, his son, would have lifted Jeet Ram, and not Sundar Lal. Therefore, he has argued that Sundar Lal’s evidence was necessary. 25. We do not agree with the contention of learned counsel for the appellant in as much as no fixed number 17 of witnesses has been prescribed in the Indian Evidence Act. It is the quality of the evidence that matters and not the quantity. If Sundar Lal’s evidence was thought to be useful by the accused, he would have been produced as a defence witness. What was the harm? It will not be out of place to mention here that P.W.5 Sohan Lal has provided the answer to query of learned counsel for the appellants as to why Sundar Lal lifted Jeet Ram? 26. Learned counsel for the appellants has also submitted that P.W.3 Chandi Prasad and P.W.5 Sohan Lal have admitted that Jeet Ram got fainted. Jeet Ram’s getting fainted is one thing and his getting medically examined is another thing. It has been brought in evidence on record that while fleeing away from the spot, Jeet Ram collided with a machine and fell down. 27. In this case the scissors were got recovered. It was blood stained scissors. There was foul smell of blood on it. In this case Mamta got injured and Yashoda was murdered. The recovery memo was signed by both the accused and also signed by the witnesses. The accused persons nowhere said that the same did not bear their signatures. Nothing specific was said about recovery memo (Ext. Ka-11) in the statement of the accused under Section 313 of Cr.P.C. P.W.2 Mamta was aged 21 years and an unmarried girl. 18 Why should the daughter of Yashoda rope in the accused unnecessarily? How is she benefited? Learned counsel for the appellant has argued that since Mamta had the apprehension that she might be implicated, as the accused persons were going to lodge the FIR against her and therefore, she has named them. We do not agree with