IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Court’s order whether the case is or not approved for reporting (Chapter VIII, Rule 32(2) (b) Description of Case Criminal Appeal No. 618 of 2001 (Old No. 2013 of 1989) Date of decision :-14.06.2007 A.F.R. (Approved for Reporting) Not approved for reporting Date :-14.06.2007 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. 618 of 2001 (Old No. 2013 of 1989) 1. Hari Singh S/o Dan Singh 2. Inder Singh S/o Dan Singh Both R/o Bera (Maliyani) Patti Rawal, P.S. Kotwali District Pithoragarh …Appellants Versus State … Respondent Delivery of Judgment : 14th June, 2007 Mrs. Pushpa Joshi, Advocate for the appellants. Mr. G.S. Sandhu, Govt. Advocate for the respondent-State. Coram: Hon’ble Rajeev Gupta, C.J. Hon’ble J. C. S. Rawat, J. Per Hon’ble J.C.S. Rawat, J. 1. This Criminal Appeal has been directed against the judgment and order dated 26.08.1989 passed by Shri M. L. Singhal, the then Sessions Judge, Pithoragarh in S.T. No.30/1988 State Vs. Hari Singh & another, whereby the appellant-Hari Singh was convicted and sentenced to undergo imprisonment for life and for six years under section 302 & section 307 IPC respectively. The appellant-Inder Singh was convicted and sentenced to undergo imprisonment of life and for six years under section 302/34 IPC and section 307/34 IPC respectively. Both sentences were to run concurrently. 2. The facts, in nutshell, are that Hari Singh and Inder Singh (appellants) are the cousins of Laxman Singh-informant and Kundal Singh-deceased. Mohan Singh PW2 is the real uncle of appellants (Hari Singh & Inder Singh), Laxman Singh PW1 and Kundal Singh- deceased. The family of the appellants-accused were not having good relations with the families of Kundal Singh (deceased) and Laxman Singh PW1. They were not even on visiting and talking terms for the past six to seven years from the date of incident. The appellants-accused devoured the land of the family of the deceased-Kundal Singh. Laxman Singh PW1 - brother of the deceased was employed in the Army while the appellants-accused were unemployed. The appellants-accused have developed jealousy with the family of the deceased. On 18.05.1989 the marriage procession of one-Prahlad Singh was going from Beda village to village Sirmoda-near Gyradevi. In the said marriage procession, the appellants (Hari Singh & Inder Singh), the deceased-Kundal Singh, Laxman Singh PW1, Mohan Singh PW2 and Gopal Singh PW3 were present alongwith other guests (‘Baraties’). At about 9:30pm when the marriage party (Barat) was going on the way to Gurna from Gyaradevi, the procession came to a halt and few ‘Baraties’ started dancing. There were 4-5 gas lanterns in the procession. One-Khim Singh persisted to continue the dance there. Mohan Singh PW2 – real uncle of the appellants, informant and Kundal Singh deceased asked him to discontinue the dance and to proceed further as it was getting late. Both Khim Singh and Mohan Singh PW2 joined over this issue and the exchange of hot words took place between them. The deceased Kundal Singh also appeared there and tried to intervene in the matter. Kundal Singh asked them to stop the dance and to proceed further. In the meantime, the appellants Hari Singh and Inder Singh also appeared there and pressed for continuance of the dance and challenged as to who was going to stop them. Laxman Singh PW1 also told them for discontinuance of the dance as the ‘Baraat’ was already getting late. Laxman Singh also told them that they were causing unnecessary delay in the ‘Baraat’. On this, Inder Singh got enraged with Laxman Singh PW1 and slapped on his face. In order to save him, Kundal Singh(deceased) appeared there and asked Inder Singh as to why he was beating his brother. Thereafter, the appellant Hari Singh took out a knife and gave knife blows to Kundal Singh. Consequently, he fell on the ground. When Laxman Singh PW1 came forward to rescue him, the appellant Inder Singh caught hold of Laxman Singh from behind and exhorted the appellant Hari Singh to kill him. On this, the appellant Hari Singh tried to give a knife blow in the stomach of Laxman Singh, but he turned around and the knife struck at his hip. Thereafter, the appellants Hari Singh and Inder Singh fled away from there. Immediately after the occurrence, Mohan Singh PW2, Gopal Singh PW3 and other villagers took the injured persons Kundal Singh and Laxman Singh PW1 to the District hospital, Pithoragarh for medical treatment. Kundal Singh was seriously injured and his condition was precarious. He succumbed to his injuries on the same night at 11:45pm in the hospital. A written FIR Ex.ka.1 was lodged by the injured Laxman Singh PW1 on the same night at 12:15P.M. On the basis of written report Ex.ka.1, a Chick F.I.R Ex.Ka.13 was prepared and necessary entry was made in the general diary Ex.Ka14. S.I.–Shyam Lal PW6, Investigating Officer started the investigation and sent the dead body for postmortem. The I.O. prepared the site plan. He also recorded the statement of the witnesses. After completing the investigation, the Investigating Officer submitted the chargesheet before the court. 3. After submission of chargesheet the appellants- accused were committed to the court of Sessions for trial and the trial court framed charges against the accused persons. They denied the charges levelled against them and claimed their trial. 4. The prosecution in support of its case examined as many as six witnesses. Laxman Singh PW1 – informant is the cousin brother of the appellants-accused. He is an injured eye-witness of the incident. Mohan Singh PW2 is the real uncle of appellants, deceased and informant. He is equally related to both parties and he is eye-witness of the incident. Gopal Singh PW3 is also eye-witness of the incident. Gopal Singh PW3 is the resident of the same village i.e. Bera. His testimony does not show that he is, in any way, inimical with the prosecution party. Dr. Harish Chandra Pathak PW4 is the Medical Officer, who conducted the postmortem of the dead body of the deceased. Dr. M. D. Bhatt PW5 was the Medical Officer, District Hospital. He had given the medical treatment to the injured Kundal Singh in the hospital. He also examined the injured Kundal Singh before admission to the hospital and he also examined the injuries of Laxman Singh PW1. S.I.- Shyam Lal PW6 is the Investigating Officer of this case. After completing the investigation, he submitted the chargesheet Ex.Ka.21. The appellants-accused did not adduce any evidence in their defence. 5. The accused persons 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 in this case. 6. The learned Sessions Judge on appreciation of the evidence held the appellants guilty and convicted and sentenced them as mentioned above. 7. We have heard Mrs. Pushpa Joshi, learned counsel for the appellants and Mr. G.S. Sandhu, learned Government Advocate for the respondent-State. Perused the record carefully. 8. At the outset, it needs to be mentioned here that it is not disputed that the deceased Kundal Singh died on account of the injuries sustained by him on the date of occurrence. Kundal Singh was hospitalized in the injured condition and he was medically examined in the intervening night of 18/19.05.1987 at 10:20pm by Dr. M.D. Bhatt PW5, who found following injuries on the person of the injured-Kundal Singh:- (i) Incised wound over caccygeal region 3cm above from tip of coccyx (right) size 2 x 5cm x 3cm deep. Profuse bleeding present. Margin clear cut. (ii) Incised wound over hip 16cm below and medial from left iliac-crest size 3 x 1.5cm x 3cm deep. Elliptical in shape. Margins clean cut. Profuse bleeding present. (iii) Incised wound over middle of right arm (inner side) size 2 x 0.5cm, skin deep, margins clean cut. 3cm above from right elbow. Profuse bleeding present. (iv) General condition of the patient was very-very poor. Pulse feeble. In the opinion of Dr. M. D. Bhatt, Medical Officer, the injuries were caused by sharp edged weapon and the injuries were fresh. It was further opined that the injuries might have been caused on 18.05.1987 at about 9:30pm. 9. The prosecution has also adduced the evidence of Dr. Harish Chandra Pathak PW4, who conducted the postmortem of the deceased-Kundal Singh on 19.05.1987 at 2:05am. Dr. Harish Chandra Pathak PW4 has found following ante-mortem injuries on the person of the deceased-Kundal Singh:- (i) An Incised wound over back of middle upper arm (right). It is muscle deep 2 x 1 x 1cm in size, direction towards down and outer surrounding arm blood stained. (ii) An incised wound on left middle gluteal region, size 3.8 x 1 x 7cm, direction from above downwards and medically on opening it is bone deep. Bone is fractured at base. Wound is full of clotted blood. It is stitched. Surrounding stained with blood. (iii) An incised wound 2 x 0.6 x 4cm in size, on opening wound it is muscle deep. It is situated over right lower back 5cm above gluteal left. It starts 1.5cm from midline & is directed down & out. It is stitched. Both lower limbs are stained with blood due to injuries 2nd and 3rd wound bandage. 10. In the opinion of Dr. Harish Chandra Pathak, Medical Officer, the death was caused due to shock, execessive bleeding and coma resulting from the ante- mortem injuries sustained by the deceased. The Medical Officer has also opined that the deceased could have sustained the injuries on 18.05.1987 at about 9:30pm. It was further opined that if the proper medical facility would have been available in the hospital the deceased could have survived. Thus, it is amply established that deceased-Kundal Singh met a homicidal death on account of injuries sustained by him. 11. It is also established that the injured Laxman Singh PW1 has also sustained injury on his person on the date of occurrence. He was medically treated and examined at 11:05pm on the date of incident by Dr. M. D. Bhatt PW5, who found following injury on his person:- (i) Incised wound over left hip 12 cm below and medial shape. Profuse bleeding present. In the opinion of Dr. M. D. Bhatt PW5, the injury sustained by Laxman Singh PW1 was simple in nature and it might have been caused by sharp edged weapon. 12. It is admitted case of the parties that the appellants-accused are cousins of the deceased-Kundul Singh and the injured-Laxman Singh PW1. The appellants-accused had admitted in their statement recorded under section 313 Cr.P.C. that a quarrel took place between Mohan Singh PW2 and Khim Singh over the continuance of dance in the marriage procession. They have further admitted that the complainant party and the appellants were on inimical terms with each other before the incident. There is no dispute about the presence of the appellants-accused, deceased Kundul Singh, Laxman Singh-injured, Mohan Singh and other villagers in the marriage procession. It is also admitted that the dance was going on in the marriage procession. The defence has tried to put a case by way of suggestion before the trial court that there was a quarrel between Mohan Singh and Khim Singh. The deceased and Laxman Singh supported the stand of their uncle Mohan Singh. On seeing the quarrel, the invitees of the marriage party assemble there and tried to intervene in the matter. Some unknown persons taking advantage of darkness assaulted and inflicted injuries on the person of the deceased and Laxman Singh. Thus, it is admitted that the occurrence took place when the procession of the marriage party was going on. Thus, the presence of appellants, deceased-Kundal Singh, injured-Laxman Singh PW1, Mohan Singh PW2 and Gopal Singh PW3 is admitted and the incident is admitted to the parties. 13. Now, we have to consider whether the appellants- accused were responsible for causing injuries to the injured and the deceased. The prosecution had adduced the evidence of the injured eye-witness Laxman Singh PW1. He has narrated the entire incident as mentioned above. Mohan Singh PW2 and Gopal Singh PW3 both the eye-witnesses have corroborated the evidence of Laxman Singh PW1. The injured eye-witness Laxman Singh PW1 has lodged the report of the incident. Gopal Singh PW3 has scribed the report on the dictation of Laxman Singh PW1. All the eye-witnesses 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. All the eye-witnesses remained consistent in their cross examination with regard to the factum of incident. Moreover, the presence of the injured eye-witness Laxman Singh PW1 cannot be doubted. He has sustained injury in the same incident and the prosecution has proved the same. The injured witness stands on a higher pedestal than ordinary eye witness. It is also well settled that the testimony of the injured is sufficient to base the conviction and no further corroboration is required. His testimony is credible and cogent. The presence of the injured witness cannot be ruled out. The testimony of an injured witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence lends support to his testimony that the witnesses were present during the occurrence. {Vide 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}. 14. Learned counsel for the appellants contended that the prosecution has not produced the independent witnesses to corroborate the fact of incident. It was further contended that it has come in the evidence that there were other guests (‘Baraties’) in the marriage party and they saw the incident, but they were not produced before the court. It was further contended that the injured eye-witness of the prosecution namely, Laxman Singh PW1 is real brother of the deceased- Kundal Singh and Mohan Singh PW2 is uncle of the deceased and the appellants. Gopal Singh PW3 also belongs to the same village i.e. Bera. It was further contended that Laxman Singh PW1, Mohan Singh PW2 and Gopal Singh PW3, who are said to be the eye- witnesses of the incident, are interested witnesses as they are related to the deceased. It was contended on behalf of the appellants that the prosecution should have adduced the evidence of independent witnesses who were also present at the time of incident. Learned G.A. refuted the contention. On due consideration of the submissions of the learned counsel for the parties, we are of the view that although, it is true that Laxman Singh PW1 and Mohan Singh PW2 are related to the deceased and Gopal Singh PW3 belongs to the same village, but the evidence of injured eye-witness and other witnesses cannot be discarded on this ground alone. 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. By now, it is well settled principle of law that animosity is a double-edged sword. It cuts both sides. It could be a ground for false implication and it could also be a ground for assault. Just because the witnesses are related to the deceased would be no ground to discard their testimony, if otherwise their testimony inspires confidence. In the facts and circumstances of the present case, they are but natural witnesses of the incident. 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 culprits to escape unpunished. 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 many 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. So far as the contention that no independent witness was produced is concerned, the prosecution has adduced the evidence of Gopal Singh PW3, who is the resident of the same village. His testimony does not show that he is in any way inimical with the accused persons or closely affiliated with the prosecution party. Moreover, Mohan Singh PW2, who is said to be the real uncle of the deceased, is also real uncle of the accused persons. He is equally related to both parties. It is not always necessary to multiply the evidence of the incident on the same point. It has to be quality of the evidence and not the quantity, which is required. If the evidence available on record is otherwise satisfactory in nature and can be said to be trustworthy then increase in the number of witnesses cannot be the requirement of the case. Moreover, it has now almost become a fashion that the public is reluctant to appear and depose before the court especially in criminal cases because of varied reasons. Criminal cases are kept dragging for years to come and the witnesses are harassed lot. They are being threatened, intimidated and at the top of all they are subjected to unnecessary lengthy cross-examination. So, the witnesses avoid to come to the court. The evidence of prosecution witnesses is consistent and nothing had been elicited from their cross examination which may render their evidence unreliable. The evidence of the prosecution witnesses is credible and cogent. In view of the above discussions, we do not find any force in the contentions advanced by the learned counsel for the appellants. 16. Learned counsel for the appellants further contended that the prosecution has failed to establish that there was any source of light at the spot. The incident took place at about 9:30pm and the prosecution has not given the source of light for the identification of the appellants. It was further pointed out that it was a dark night and the appellants could not have been recognized in the dark night, as such the appellants are entitled to be acquitted on this score alone. It was further contended that the source of light has not been indicated in the FIR as well as in the statement recorded under section 161 CrPC. Learned G.A. refuted the contention. Laxman Singh PW1, Mohan Singh PW2 and Gopal Singh PW3 had consistently stated in their evidence that the marriage procession of one-Prahlad Singh was going from the village Beda to the village Sirmoda on foot. There were 4-5 gas lanterns in the marriage party at the time of occurrence. The appellants-accused had stated that the ‘Baraties’ (invitees) were dancing in the marriage procession. Therefore, it would be improbable that they were dancing in the marriage procession in the dark night. Apart from this, it is admitted that appellants-accused were known to Laxman Singh PW1, Mohan Singh PW2 and Gopal Singh PW3 since before. It is also significant that the appellants-accused can be recognized by their voice also. This is not a case where the identifying witnesses had only fleeting glimpses of the accused. The parties are known to each other and as such there was no chance of making a mistake about their identity. Thus, there is no reason at all for holding that there were no gas lanterns in the marriage procession and the appellants could not be identified by the prosecution witnesses. Therefore, the contention advanced by the defence is not tenable. 17. Learned counsel for the appellants contended that there was a delay in lodging the FIR. It was further contended on behalf of the appellants that the delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the Fir not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. Learned G.A. refuted the contention. The incident took place at about 9:30pm on 18.05.1987. Laxman Singh PW1, who was present at the scene of occurrence, promptly reported the matter to the police at 12:15 am in the intervening night of 18/19.05.1987. The distance between the police station and the place of incident is about 11kms. The circumstances itself speak that the delay in lodging the FIR was under compelling circumstances. The deceased was admitted in the hospital at about 10:12pm and his condition was precarious. He was struggling for his life and the entire family of the deceased was busy in looking after the injured-Kundal Singh. In view of the precarious conditions of the injured, the informant and other relatives must have concentrated more in looking after the injured (deceased) than in lodging the FIR. It is natural that they would first try to save the life of the injured and then they would lodge the report. Thus, there is no delay in lodging the FIR. The prompt FIR thus inspires confidence that it was not the outcome of any consultation or deliberation. FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstances in which the crime was committed, including the names of the actual culprits and the parts played by them as also the names of the eye witnesses, if any. 18. It was contended on behalf of the appellant-Inder Singh that according to the prosecution case there was a quarrel between Khem Singh and Mohan Singh PW2 for the discontinuance of dance in the marriage party. The appellants Hari Singh and Inder Singh also came there and they also insisted to continue the dance and they also challenged as to who was going to stop it. Laxman Singh PW1 requested them again for