IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Court’s order whether the case is nor not approved for reporting (Chapter VIII, Rule 32 (2) (b) Description of Case Crl. Appeal No. 441 of 2001 (Old No. 2612 of 1982) Date of decision :- 14-6-2006 A.F.R. (Approved for Reporting) Not Approved for reporting Date:- 14-6-200 Initials of Judge Note:- Bench Reader will attach this at the top of the first page of the judgment when it is put before the Judge for signature. IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Criminal Appeal No. 441 of 2001 (Old No. 2612 of 1982) Vishnu Dutt Bhatt S/o Vishal Mani Bhatt R/o Chor Khala Police Station – Kotwali Dehradun … Appellant Versus State of Uttarancha … Respondent Sri Lokendra Dobhal, learned counsel for the appellant Sri Nandan Arya, learned A.G.A. for the State Hon’ble J.C.S. Rawat, J. 1. The present appeal has been directed against the judgment and order dated 11.10.1982 passed by Sri V.K. Agarwal, the then Additional Sessions Judge Dehradun in Sessions Trial No. 58 of 1981 sentencing the appellant for five years R.I. each u/s 307 and 333 I.P.C. The appellant was further sentenced to undergo R.I. for one year & six months u/s 332 I.P.C. and 25 (1) r/w Section 27 Arms Act respectively. 2. Brief facts for the disposal of this appeal are that an F.I.R. (Ex. Ka.10) was lodged on 24.02.1981 at 7:00 p.m. by S.I., I.B. Nautiyal alleging therein that while he was on duty on 24.01.1981 at about 6:15 p.m. near Laxmi Talkies to check the black marketing of the ticket and as soon as he got down after parking his motor cycle in front of Laxmi Talkies, he saw that Devendra @ Nikku having a pistol in his hand, Vishnu Dutt Bhatt, Babbar @ Billu and his one associate were quarrelling with Theliwalas. As soon as Devendra saw S.I., I.B. Nautiyal, he fired upon him with an intention to kill him but he escaped anyhow. After firing, Devendra @ Nikku managed to escape towards the Prince Hotel. In the meantime, Vishnu Dutt Bhatt also fired at him with the intention to kill but the complainant escaped and that bullet hit one Bharat Singh Rawat. The complainant tried to caught hold of Vishnu Dutt Bhatt and tried to snatch the pistol from his hand, but Vishnu Dutt Bhatt fired two times more with the intention to kill S.I., I.B. Nautiyal. Babbar and one more person tried to get Vishnu Dutt Bhatt released from the grip of the complainant and Babbar gave a teeth bite on the cheeks of the complainant and the other fellows beat him by legs and fists but the complainant snatched the pistol from the hands of Vishnu Dutt Bhatt having a live cartridge in its barrel. In the meantime, constable Narendra Singh, Sat Pal Singh and one traffic constable Ram Pal Singh also reached at the spot. Babbar and another managed to escape. The complainant and Narendra Singh also received injuries in that occurrence. Vishnu Dutt Bhatt alongwith recovered pistol and cartridges were brought to police station kotwali by Sri I.B. Nautiyal and constable Narendra Singh. On the basis of this F.I.R., G.D. (Ext. Ka11) was prepared by Head Constable Jag Mohan. The investigation was given to S.O. Dharam Vir Singh. The Investigating Officer had visited the place of occurrence and completed all the necessary formalities and submitted the chargesheet against the accused Vishnu Dutt Bhatt. After the transfer of S.O. Dharam Vir Sharma, S.O. Rampal Tyagi was given the investigation. He submitted the chargesheet against the accused Devendra @ Nikku and Chandra Mohan @ Babbar. 3. The accused-appellant Vishnu Dutt Bhatt was charged u/s 307, 333 r/w 34 I.P.C. and section 332/34 I.P.C. and section 25 Arms Act. A separate charge u/s 332/34 I.P.C. and 333/34 I.P.C. was framed against the accused Chandra Mohan. A separate charge u/s 307, 332 r/w 34 I.P.C. was also framed against the accused Devendra @ Nikku. The accused denied the charges levelled against them and claimed trial. 4. The prosecution in support of its case produced the evidence of Dr. K.K. Mehrotra-PW 1, Radiologist at Doon Hospital and he had prepared X-ray reports Ex.Ka.1 & 2 of Constable Narendra Singh and S.I., I.B. Nautiyal respectively. Dr. S.K. Kapoor-PW2 had medically examined accused Vishnu Dutt Bhatt. Dr. P.K. Gupta-PW3 had medically examined S.I., I.B. Nautiyal, Constable Narendra Singh and Bharat Singh Rewat. S.I., I.B. Nautiyal-PW4 is the eye witness of the incident. Constable Narendra Singh- PW5 had supported the statement of the S.I., I.B. Nautiyal. Ved Prakash-PW6 and Suresh Kumar-PW8 were the Theliwalas and sell Moongfali in front of the Talkies. Kewal Krishan-PW7 is also Theliwala who stands in front of Luxmi Talkies with his Theli who was declared hostile later on. Inspector Dharam Vir Singh-PW9 had investigated the matter initially and submitted the chargesheet against the present appellant. Thereafter, investigation was entrusted to S.O. Rampal Tyagi who submitted the chargesheet against the accused Devendra @ Nikku and Chandra Mohan @ Babbar. Ram Asrey Pandey-PW10 was the ballistic expert. 5. The appellants were examined u/s 313 Cr.P.C. and they stated that they have been falsely implicated in this case. 6. The learned trial court after appraisal of the evidence on record convicted and sentenced the appellant as mentioned above. The trial court had acquitted the accused Devendra @ Nikku and Chandra Mohan @ Babbar from the charges levelled against them. 7. I have heard learned counsel for the parties and perused the record. 8. It is not disputed that the injured-S.I., I.B. Nautiyal sustained the injuries on 24.02.1981. Dr. P.K. Gupta-PW3 medically examined him and found the following injuries:- 1. Multiple abrasions four in numbers closely placed in size of 1.5 cm x 1.5 cm. of left side of face, 4.5 cm. in front of left ear with traumatic swelling around the wounds in an area of 2.5 cm. x 2.5 cm. Fresh blood in wounds. 2. Multiple abrasion in an area of 6.5 cm. x 2.5 cm. on back of right hand. Fresh blood. 3. Complaint of pain in left right finger. 4. Multiple abrasion in an area of 9cm. x 1.5cm on left knee. 5. Abrasion in an area of 2.5 cm.x 1.5cm on right knee. 9. it is not disputed that Constable Narendra Singh sustained the following injuries:- 1. Traumatic swelling 3cm. x 2cm. on the right side of the forehead, 3cm. above lateral edge of right eye brow. 2. Complaint of pain in right index finger with swelling in an area of 3cm x 2cm. around the top of right index finger. 3. Complaint of pain in right elbow. 4. Complaint of pain in right side of back. 5. Complaint of pain in right knee. 10. Dr. P.K Gupta-PW3 had medically examined S.I., I.B. Nautiyal on 22.02.1981 at about 7:20 pm. and found the above mentioned injuries. Constable Narendra Singh was also medically examined on the same day at about 7:30 pm. The doctor had proved the report Ex.Ka-4 an ex.Ka-5. The doctor had given his opinion with regard to the injuries sustained by I.B. Nautiyal and Narendra Singh that these injuries could have been caused at about 6:15 pm. on the same day. It was further opined that the duration of the injuries were fresh. The injury No. 3 of I.B. Nautiyal was kept under observation which was on the left ring finger and later on it was not found grievous. The injury of Narendra Singh which was on the right index finger was found grievous because it was fractured. The witnesses had also stated that Marpeet took place on the date of the incident. The appellant also sustained the injuries on the date of the incident and Dr. S.K. Kapoor-PW2 found following injuries on the person of the appellant which are as under :- 1. A lacerated wound 2.05cm x 1.5cm on right upeer eye lid on outerance. 2. A traumatic swelling 8.5cm x 6.5cm. alongwith the right eye but there is no injury in the internal eye. 3. A traumatic swelling on the nose 6.5cm x 4cm.. 4. A traumatic swelling 6cm. x 4 cm. on the left cheek. 5. A lacerated wound 1.5cm x 0.5cm. inner side of the lower lip. 6. A lacerated wound 1.5cm x 1.5 cm. right side of the leg above the muscle deep on the front of the right leg 11 cm. below the right knee. Kept under observation. Advice X-ray. 7. Complainant of pain in the left leg but there is no injury. 11. It is also mentioned in the report Ex.Ka-6 that the appellant was talkative and he had consumed the alcohol. The doctor had also opined that the appellant was under the influence of liquor. It was also opined that duration of the injuries were fresh and it may come on 22.02.1981 at about 6:00 and 6:30 pm. He had also opined that these injuries can be sustained by the appellant in a scuffle for snatching the pistol and it was also opined that these injuries could be sustained by the appellant by means of lathi and danda. The entire evidence reveals that the injured as well the appellant sustained the injuries at the time of the incident. 12. Now I have to examine as to who is the author of the injuries on the person of S.I., I.B.Nautiyal and Constable Narendra Singh. The perusal of the injuries clearly reveals that both the injured had sustained the injuries on their non- vital part. It is also pertinent to mention here that there was injury of biting by teeth on the cheeks of S.I., I.B. Nautiyal. According to the prosecution case, this injury by biting teeth on the cheeks was caused by the accused who had already been acquitted by the trial court. The learned counsel for the appellant contended that the prosecution had failed to prove its case beyond the reasonable doubt. Learned counsel for the appellant further contended that the prosecution had failed to prove the injuries on the person of the accused. It was further contended that the evidence of S.I., I.B.Nautiyal-PW4 and Constable Narendra Singh-PW5 are interested witnesses and they all are the police officials and their evidence cannot be acted upon without corroboration. It was further contended that the injured- Bharat Singh who sustained the gun shot injuries had not been examined before the trial court. It was further contended that the appellant was under the influence of intoxication and he could not understand what act he was committing. It was further contended that the intention to commit the offence u/s 307 I.P.C. is essential but the intention of the appellant was lacking in this matter and at last it was contended that the accused is entitled to be acquitted. The learned A.G.A. refuted the contention and contended that the prosecution has established its case beyond reasonable doubt. There was no necessity to multiply the evidence on the same point as such, the non- examination of Bharat Singh is not fatal to the prosecution. Bharat Singh was examined by Dr. P.K. Gupta-PW3 on 22.02.1981 at about 6:35 pm. immediately after the incident and following injuries were found on the person of the injured Bharat Singh:- 1. Lacerated wound 4 cm x 2cm x muscle deep depth not proved on back right side 7 cm from mid line. Blackening around the wound. Margins blackened & inverted. 2. Lacerated wound 1.5cm x 1 cm x muscle deep on back of right arm. 15 cm below top of right of lower. Blackening around the wound. Margins inverted (wound entry). 3. Lacerated wound 1.8 cm. x 1cm x muscle deep on back of right arm. 1.5cm injury no. (2) and on same level no blackening around the wound. Margins inverted. 13. The doctor had opined that the injuries were fresh and it was sufficient to cause his death. It was further opined that the injuries of injured Bharat Sigh was fresh and these injuries could be caused at about 6:15 pm. It was further opined that the injuries No. 1 and 2 may be caused by two different fire arms. He could not give the definite opinion what was the duration of the injury No. 2. Bharat Singh was present at the spot and he sustained the injuries. So is the case with the criticism levelled by the learned counsel for the appellant on the prosecution case finding fault therewith for non-examination of Bharat Singh-injured. 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 of 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 have not supported the prosecution case. In the instant case, Bharat Singh sustained the injuries and he was the main sufferer of the incident and he had seen the incident how it took place. The prosecution had not examined Bharat Singh and as such, there is no convincing reason not to bring to fore the prosecution witness Bharat Singh. This fact definitely goes against the prosecution. It also leads to take the inference that the incident which has been narrated by the prosecution did take place as it has been narrated but was an otherwise. On the other hand if already overwhelming evidence is available and examination of other witnesses would not be an evidence already adduced, non- examination of other witnesses may not be material. In such case, the court ought to scrutinize the worth of the evidence adduced. I feel that the court while appreciating the evidence must ask itself whether any facts and circumstances of the case, it was necessary to examine such witness, and if so, whether such witness was available to be examined and yet 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 and the testimony coming from their mouth is unimpeachable the court can safely act upon it, uninfluenced by the factum on non-examination of the other witnesses. In the present case, I find that there are two witnesses who are said to be present at the place of the incident and they also sustained the minor injuries. It was also suggested by the defence that this incident took place at the place of occurrence. The defence has stated that the incident took place at Saharanpur Chowk where the appellant was under the influence of intoxication and he was taken into custody and he was beaten. Some Netaji tried to pacify the matter but he was taken to the police station. The injuries sustained by these two witnesses are just minor and one injury which is said to be grievous is on the index finger which is found fractured. It is also in the evidence that the accused sustained the six injuries on this person as indicated above. He had also sustained the injury No. 1, i.e., lacerated wound. The genesis of the incident which has been places before the court was brought by both the injured witnesses. These witnesses are police witnesses. R.P. Nautiyal is the S.I. who is said to be on the gust duty on the plain dress for checking of the tickets of the cinema tickets other constable Narendra Singh was on duty at Cinema hall and he saw the incident. Both the witnesses are the interested witnesses. The genesis of the story which has been brought forward by the witnesses is that the first fire was made by co-accused upon the injured S.I., R.P.Nautiyal but the fire missed and S.I., R.P. Nautiyal could not sustained the injury. The accused Devendra @ Nikko who fired had already been acquitted by the trial court. His presence was doubtful at the place of the incident. The second fire which was admitted to be made on S.I., R.P.Nautiyal again did not hit him but this fire hit Bharat Singh-injured. When we analyze the entire evidence, the story of the prosecution does not reason to believe and does not reason to found probable to the satisfaction of the court. It is also pertinent to mention here that the prosecution has taken a case that the injured S.I., R.P. Nautiyal was on duty on the plain dress and he reached at the spot on the motorcycle. When he saw the scuffle between the Theliwala and other co-accused he tried to intervene and immediately thereafter, Devendra @ Nikko fired upon him. It is also pertinent to mention here that the rawangi of S.I., R.P. Nautiyal does not reveal that he was on the gust on the plain dress. It is also pertinent to mention here that all the fires were tried to make the target the injured S.I., R.P. Nautiyal but he could not sustained any of the bullet injuries. The accused was under the influence of intoxication. 14. The next question which arises for the consideration is what is the effect of non-examination of injuries sustained by the accused-appellant. It is not the law that the prosecution case shall fail because the injuries of the accused has not been explained. The prosecution had not explained the injuries of the accused. Doctor has only opined that these injuries could be caused during the scuffle while snatching the pistol. This is also in the evidence that these injuries can also be caused by lathi and danda. But the eyewitnesses had not explained the injuries on the person of the accused. The Apex Court in Laxman Singh Vs. Poonam Singh and others (2004) 10 SCC 94 has held in para 7 as under : “7. The number of injuries is not always a safe criterion for determining who the aggressor was. It cannot be stated as a universal rule that whenever the injuries are on the body of the accused persons, a presumption must necessarily be raised that the accused persons had caused injuries in exercise of the right of private defence. The defence has to further establish that the injuries so caused on the accused probabilises the version of the right of private defence. Non-examination of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance. But mere non-explanation of the injuries by the prosecution may not affect the prosecution case in all cases. This principle applied to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that if far far outweighs the effect of the omission on the part of the prosecution to explain the injuries.” 15. The view taken consistently is that it cannot be held as a matter of law or inevitably a rule that whenever the accused sustained the injuries in the same occurrence, the prosecution is obliged to explain the injuries and on failure on the prosecution to do so the prosecution case should be disbelieved. Before non-explaining of the injuries on the person of the accused person by the prosecution witness may effect the prosecution case, the court has to be satisfied of the extent of two contentions namely (i) that the injury on the person of the accused was of a serious nature (ii) that such injury must have been caused at the time of the occurrence in question. Non-explanation of injuries assume grater significance when the evidence consists of interested witnesses or partisan witnesses or where the defence gives a version which competes in probability with that of the prosecution. Where the evidence is clear, cogent and creditworthy and where the court can distinguish the truth from falsehood the mere fact that the injuries on the side of the accused persons are not explained by the prosecution cannot be itself be a sole basis to reject the testimony of the prosecution witnesses and consequently the whole of the prosecution case. The Court ought to have made an effort at searching out the truth on the material available on record as also to find out how much of the prosecution case was proved beyond reasonable doubt and was worthy of being accepted as truthful. 16. As I have indicted above, that if the witnesses are partisan and interested there testimony cannot be believed and the defence version competes in probability with that of the prosecution. Non-explanation of the injuries would assume grater significance in the matter. As I have indicated above, the material witness had not been produced before the court who was the main injured in this case. The story as has been said above is not probable. Both the alleged injured witnesses sustained the minor injuries. They are the police officials and their testimony cannot be relied upon without corroboration in the matter. The witnesses are interested and their evidence as has been indicated above is not probable as such, I find that non-explanation of the injuries assume a vital part for the prosecution. 17. It is also stated that the appellant was under the influence of intoxication and the medical examination was conducted at about 11:30 on the same day. The incident took place at about in between 6:15 or 6:30 p.m. The doctor has opined that the appellant had sustained six injuries on his person and he had consumed alcohol and he was talkative and alcohol smell was coming from his mouth. This indicates that at the time of the examination, the injured was under the influence of alcohol. It also leads to take inference that the appellant was not in a condition to know what he was doing. 18. To constitute an offence under Section 307 I.P.C., two ingredients of the offence must be present :- a. an intention of or knowledge relating to commission of murder, and b. the doing of an act towards it. For the purpose of Section 307 what is material is the intention of or the knowledge and not the consequence of the actual act done for the purpose of carrying out the intention. The Section clearly contemplates an act which is done with intention of causing death but which fails to bring about the intended consequence on account of intervening circumstances. The intention or knowledge of the accused must be such as is necessary to constitute murder. In order to convict the accused it is necessary to establish the ingredients of 307 I.P.C. In the instant case, the injured was under the influence of alcohol even if for the sake of arguments the fire was made, it cannot be said that it was made with the intention to kill him because he was not in a position to understand the consequence of the act done by the accused. The defence version as brought before the trial court is that on the date of the incident, the accused was going to his house and he was in a drunken condition and when he reached at Saharanpur Chowk, one man came to him and started beating him. On this the accused raised alarm in which number of person assembled and one Netaji intervened in the matter and saved him. The person with whom the quarrel took place told him that he is S.I. and he would be challenged u/s 34 of the Police Act. Later on the accused was brought to the police station and he was beaten there and kept under lock. It is also revealed from the evidence that the appellant was under the influence of alcohol. It is also revealed that the appellant sustained the