IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL (Chapter VIII, Rule 32(2) (b) Description of Case Criminal Appeal No. 135 of 2002 Date of decision: 06th May, 2008 A.F.R. (Approved for Reporting) _________________________ Not approved for reporting Date : 06.05.2008 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.135 of 2002 Sher Singh @ Sheru, Aged 33 years, S/o Late Sri Vishan Singh, S/o Ward No. 2, Kaladhungi, P.S. Kaladhungi, District Nainital. ……..Appellant Versus State …..Respondent Mr. R.S. Sammal, Advocate for the appellant. Mr. Amit Bhatt, Addl. Government Advocate for the State. Hon’ble J. C. S. Rawat, J. This is a criminal appeal preferred against the judgment and order dated 17.06.2002 passed by the then Sessions Judge, Nainital in ST No. 145/2000, whereby the Sessions Judge has convicted the accused-appellant under Section 304 Part II I.P.C. and sentenced him to undergo RI for seven years. 2. The brief facts of the case in hand are that a report was lodged at the police station by Mahendra Kumar PW1, the bus conductor of the bus bearing registration no. U.P. 20B/7737 alleging therein that on 16.3.2000, Sri Mohd. Ishmile PW7, the driver of the bus) was taking the bus from Haldwani to Ramnagar. After a brief stop at Kaladhungi, the bus proceeded towards Ramnagar. When the bus reached near Saraswati School at about 4.45 pm, the appellant Sher Singh @ Sheru Singh and deceased Vinod Kumar (both were the passengers of the bus) started quarrelling with each other in the bus. The accused- appellant Sher Singh took out a knife and stabbed the deceased Vinod Kumar inside the bus. The deceased sustained injury on his chest. The passengers of the bus tried to catch hold of the appellant but the appellant somehow managed to escape from the spot. The driver and the conductor of the bus took the bus back to Kaladhungi hospital alongwith other passengers of the bus, where the doctor advised them to take the injured immediately to Haldwani Civil Hospital as the condition of the injured was precarious. Thereafter, leaving the injured at the hospital, the bus left to its destination with its passengers. One of the passengers i.e. Deepak Chauhan PW4 remained there at the hospital. Deepak Chauhan PW4 thereafter went to village Kamola to inform Jagat Ram PW5, the father of the injured Vinod Kumar. After receiving the information, the father of the injured immediately rushed to the hospital and then the injured was taken to Haldwani Hospital for better treatment. The injured died at about 7:30 pm on the same day of the incident in the Civil Hospital, Haldwani and a report to that effect was given by his father on the next day on 17.3.2000 to the police station Kaladhungi and the case was converted from 324 IPC to Section 302 IPC. The postmortem of the dead body of the deceased Vinod Kumar was conducted on the next day on 17.3.2000 in Haldwani and panchnama was prepared. The matter was investigated by the police. After completing the investigation, the investigating officer submitted chargesheet against the accused-appellant before the Chief Judicial Magistrate, Nainital. 3. After submission of the chargesheet, the accused appellant was committed to the court of Sessions by the Chief Judicial Magistrate, Nainital. The learned Sessions Judge framed the charge against the accused-appellant Sher Singh @ Sheru for the offence punishable under Section 302 IPC. The accused appellant denied the charge levelled against him and claimed trial. 4. In order to prove its case, the prosecution examined Mahendra Kumar PW1, the bus conductor who lodged the first Information report in Kaladhungi police station, Devi Datt PW2, the scribe of the FIR (Ext. A1), Mohan Singh PW3, an eye witness and Mohd. Ishmile PW7, the driver of the bus. All of them did not support the prosecution during the trial and were declared hostile. Deepak Chauhan PW4 is the eyewitness and supported the prosecution case before the trial court. Jagat Ram PW5 is the father of the deceased Vinod Kumar. He reached the hospital after receiving the information with regard to the incident by Deepak Chauhan PW4 and then he took the deceased to Haldwani Civil Hospital where the deceased died on the same day. Dr. Chandra Shakher PW6 has conducted the autopsy of the dead body of the deceased Vinod Kumar. Mohd. Jahir PW10 was examined to prove the inquest report of the dead body of Vinod Kumar. He prepared the inquest report at Haldwani. Rajendra Kumar PW8 and PW9 Jas Ram Singh are the investigating officers of this case. 5. In the statement recorded u/s 313 Cr.P.C., the accused-appellant denied all the averments made in the evidence and stated that he had been falsely implicated in this case due to the enmity. The accused-appellant did not adduce any documentary or oral evidence in support of his case. 6. The learned trial court after appreciation of the evidence found appellant guilty of the offence and, convicted and sentenced the appellant as mentioned above. 7. I have heard the learned counsel for the parties and perused the entire record. 8. At the outset it needs to be mentioned that it is not disputed that the deceased sustained injury on his person on 16.3.2000 at about 4.45 pm in the bus. It is also not disputed that the deceased succumbed to his injury in the Civil Hospital, Haldwani on the same day at about 7.30 pm. The prosecution has also examined Dr. Chandra Shakher PW6 who had conducted autopsy on the dead body of the deceased and prepared the postmortem report Ex.A3 on 17.3.2000. He has stated that he conducted the autopsy on the dead body of the deceased Vinod Kumar on 17.3.2000 at about 2.00 pm and has found following ante-mortem injuries on the body: “Stitched wound over front of chest just laterally towards left side from the sternam vertically placed. It was 7 cm towards medially from the left nipple, 11 cm below from the sternal notch and 1.5 cm laterally from the mid line. 2.2 cm in length with five stitches. On cutting the size. On probing the wound, the direction was upwards and laterally on exploration intercostals muscle and 5th rib left found clean cut with a clean cut in pesicardium and beneath the pesicardium present, clean cut in the post wall on the left ventrical in the upper part of the wall present.” On internal examination of the lungs, fluid blood present in both the chest chambers. Semi digested food was found in the stomach and in the small intestine. Bigger intestine contained half full with faeces and gases. 9. The doctor has further opined that the deceased died due to the ante-mortem injuries received by him on the date of the incident. He has further opined that the injury sustained by the deceased on his body was caused by a sharp-edged weapon and such injury could have been caused on 16.3.2000 at about 4.45 pm. The evidence of the eyewitnesses adduced by the prosecution further establishes the date, time and place of the incident and that the deceased sustained the injury on his person by a knife. 10. Now, I have to examine as to whether the appellant was the author of the injury on the person of the deceased or not. The case rests on the direct evidence. The prosecution adduced the evidence of eyewitness Deepak Chauhan PW4 who has stated that on 16.3.2000 at about 4.45 pm, he was traveling in a bus in which the appellant and the deceased was also travelling. The bus was being plied by Mohd. Ishmile PW7, the driver of the bus and Mahendra Kumar PW1 was the conductor of the bus. There were several passengers in the bus. When the bus was proceeding from Kaladhungi to Ramnagar and reached near Saraswati School, the appellant Sher Singh and the deceased started quarrelling with each other in the bus. Thereafter, the appellant stabbed the deceased with a knife on his chest. The accused-appellant was tried to be apprehended by other co-passengers of the bus but the appellant jumped out of the bus. The deceased was immediately taken to the nearby hospital at Kaladhungi by the bus passengers, driver and the conductor. The doctor advised them to take the deceased to Haldwani Civil Hospital for better treatment, as the condition of the deceased was precarious. Thereafter, the bus left to its destination Ramnagar after leaving the injured in the hospital. Deepak Chauhan PW4 remained there at the hospital and he went to village Kamola to inform the father of the deceased with regard to the incident. The father of the deceased rushed to the hospital and the deceased Vinod Kumar was shifted to Haldwani Civil Hospital. The deceased died at about 7.30 pm on the day of the incident. Mahendra Kumar PW1 who was the bus conductor at the time of the incident has stated that the bus was packed with the passengers and he heard the noise that someone has stabbed the deceased and after stabbing, the assailant jumped out from the bus. The bus conductor did not support the rest of the prosecution version and he had not stated anything about the participation of the accused-appellant in the said incident. The bus conductor was declared hostile by the prosecution. Mahendra Kumar PW1 has stated in his evidence that he lodged the report Ex.A1 and it was written by Devi Datt Joshi PW2 but Devi Datt Joshi PW2 did not support the contents of the F.I.R. Devi Datt Joshi PW2 who was scriber of the F.I.R., was declared hostile and did not support the prosecution version. He has stated that the F.I.R was written on the dictation of the police officer. Mohan Singh PW3 who claimed to be an eyewitness did not support the prosecution version. He stated that he was not traveling in the bus on the date of the incident and had not seen the appellant stabbing the deceased Vinod Kumar. Mohan Kumar PW3 was also declared hostile by the prosecution. Jagat Ram PW5 who is the father of the deceased has stated that he received the information with regard to the incident from one Deepak Chauhan PW4 and upon receiving the information, he immediately rushed to the Kaladhungi hospital where the deceased was admitted in an unconscious condition. On the advise of the doctor, the father took the deceased to the Civil Hospital, Haldwani where the deceased succumbed to his injury at about 7.30 pm on the date of the incident. On the report that his son has died and the case was converted under Section 302 IPC. Thus, this witness is the witness to the fact that immediately after the incident; the deceased was found in the injured condition in the hospital; and later the deceased was taken to the Civil Hospital, Haldwani where the deceased died. Mahendra Kumar PW1, Devi Datt Joshi PW2 and Mohan Singh PW3 have not supported the entire prosecution version. Mahendra Kumar PW1 was the bus conductor at the time when the scuffle took place and the accused-appellant stabbed the deceased. He has further stated that he heard the noise that someone has been stabbed with a knife and thereafter the assailant jumped out of the bus. He has further stated that neither he knew the appellant nor the deceased. Thus, this witness has corroborated the prosecution story to the extent that someone has stabbed the deceased and thereafter he escaped from the bus. It is a settled position of law that the evidence of a hostile witness can also be relied to the extent that it supports the prosecution version. The evidence of such witnesses cannot be treated to be washed off from the record. It remains admissible in the trial and there is no legal bar to base the conviction on their testimony. The very object of taking the evidence is to discover the truth as far as it is humanly possible for the court to do so. In the instant case, the above stated fact which corroborates the prosecution story is un-rebutable. There is no cross-examination to the witness at all. 11. The trial court after going through the entire evidence has come to the conclusion that the evidence of Deepak Chauhan PW4 coupled with the evidence of Mahendra Kumar PW1 and Jagat Ram PW5 is credible and cogent, and they all are the natural witnesses of the incident. The trial court after going through the entire evidence has come to the conclusion that the evidence of Mahendra Kumar PW1 readwith the evidence of Deepak Chauhan PW4 proves the fact beyond reasonable doubt that the appellant Sher Singh stabbed the deceased Vinod Kumar with a knife and thereafter jumped out from the bus. The trial court further found the postmortem report readwith the evidence of Dr. Chandra Shakher proves the fact that the deceased died due to the ante-mortem injury found on the person of the deceased. I have also perused the entire evidence with the help of the learned counsel for the parties and after my independent appreciation of evidence, I am completely in agreement with the findings recorded by the trial court. I find that the witnesses are consistent and clear in their stand. They have proved the vivid details of the incident in their evidence. The eyewitness Deepak Chauhan PW4 and Jagat Ram PW5, the father of the deceased have been cross-examined at length but nothing could be elicited from their testimony. There is no enmity between the accused-appellant and the deceased. It would be the endeavour of a person to get the real culprit convicted instead of implicating a false person and getting a real culprit to go scot free. Thus, the evidence of the prosecution with regard to the incident is credible and cogent. The above inference lends credence to the fact that an F.I.R of the incident Ex.A1 was promptly reported to the police station at about 17.45 pm on the same day. 12. The learned counsel for the appellant contended that the evidence of the eyewitness Deepak Chauhan PW4 as well as of Jagat Ram PW5 cannot be relied upon only on the ground that Jagat Ram PW5, the father of the deceased has stated in his evidence that he received the information of the incident on 16.3.2000 at about 4.45 pm. He further contended that the incident took place at about 4.45 pm and thereafter the bus came back to the Kaladhungi Hospital alongwith the deceased where the deceased was admitted. Deepak Chauhan PW4 remained stayed at the hospital and thereafter he went to the village Kamola which is at the distance of 10 km from the police station to inform Jagat Ram PW5, the father of the deceased and came back within ten minutes at the hospital. It was further contended that the father could not have received the information at about 4.45 pm. The learned counsel for the appellant further contended that the entire evidence of the prosecution should be disbelieved on this ground alone. The learned Addl. Government Advocate refuted the contention. It is true that Jagat Ram PW5 has told that he got the information of the incident at about 4.45 pm from Deepak Chauhan PW4. It is also revealed from the evidence that Jagat Ram PW5 resides in a village Kamola and when he received the information with regard to the incident, he would not have seen his watch. Infact, he would been perturbed at that time, as such, he could not have stated the exact time in the evidence. It is pertinent to mention here that when a witness appears before the court, sometimes he may not stand the test of cross- examination because he is a bucolic person and is not able to understand the question put to him by a skillful cross-examiner and at times under the stress of cross- examination, certain answers are snatched away from him. Whenever a rustic or an illiterate witness faces an astute lawyer, there is bound to be imbalances and, therefore, minor discrepancies have to be ignored (See Krishna Mochi Vs. State of Bihar 2002 Vol II SCC (Cri.). Thus, the learned trial court was justified in rejecting the argument of the learned counsel for the appellant. 13. The learned counsel for the appellant further contended that the report Ex.A2 which was given by Jagat Ram PW5, the father of the deceased to the police station on 17.3.2000 reveals that no report was lodged prior to his filing of the report of the incident as well as the information of the death of the deceased. The learned counsel for the appellant further contended that the contents of the said report is hit by Section 162 of the Criminal Procedure Code. The learned Addl. Government Advocate refuted the contention and contended that Jagat Ram PW5 has given the information as regard to the death of the deceased and if the contention of the learned counsel for the appellant is taken into account that the rest part of the report Ex.A2 is hit by Section 162 and the contents of Ex.A2 can only be said to be a previous statement of the witness and the said statement has not been put to the witness as provided under Section 145 of the Indian Evidence Act. The learned Addl. Government Advocate further contended that the learned defence counsel has not made any cross- examination as to whether Jagat Ram PW5 had the knowledge of the previous report filed by the bus conductor or not. I am completely in agreement with the contention of the learned Addl. Government Advocate for the State that there is no effective cross- examination regarding the previous statement made by the father of the deceased to the police and there is no evidence on record that the father has any information that any report has been lodged prior to giving his information to the police. It is obvious that the father of the deceased was informed by Deepak Chauhan PW4 about the incident and thereafter the father rushed to the hospital. Jagat Ram PW5 then took his son Vinod Kumar, the deceased to Haldwani Civil Hospital where the deceased succumbed to his injury in the evening at about 7.30 pm on the same day of the incident. Hence, Jagat Ram PW5 would have been distributed due to the loss of his son and naturally he reported the matter on the next day. Thus, I do not find any force in the contention of the learned counsel for the appellant. 14. The learned counsel for the appellant further contended that Jas Ram Singh PW9, the Investigating Officer has stated that Jagat Ram PW5, the father of the deceased submitted the report Ex.A2 about the death of the deceased on 18.3.2000 to him. The learned counsel for the appellant also contended that Jas Ram Singh PW9, the Investigating Officer has recorded the statement of Deepak Chauhan PW4 after receiving the said report Ex.A2. It was further contended that the prosecution has not given any satisfactory explanation for such delayed examination under Section 161 Cr.P.C. The learned Addl. Government Advocate refuted the contention. The perusal of the cross-examination reveals that no question was put to the Investigating Officer with regard to the delayed examination under Section 161 Cr.P.C. It is also pertinent to mention here that the first information report which was Ex.A1 was lodged on the date of the incident and there was no mention of the names of the eye-witnesses in the said F.I.R. Jagat Ram PW5, the father of the deceased gave his report to the Investigating Officer indicating the names of the eyewitnesses so the statement of Deepak Chauhan PW4 was recorded under Section 161 Cr.P.C by the Investigating Officer thereafter. The evidence of Deepak Chauhan PW4 has been found credible and cogent. It has been held by the Apex Court in Para 9 of Dr. Krishna Pal and another Vs. State of U.P. 1996 SCC (Cri) Page 249 that the prosecution has not given any explanation as to why the eyewitnesses had not been examined shortly after the incident and from the materials on record, it appears that there had been inordinate delay in examining the eyewitnesses. But simply on that account, the convincing and reliable evidences adduced in this case should not be discarded. 15. The Hon’ble Apex Court has held in Ramesh Vs. State of M.P. 2000 SCC (Cri) 206 that :- “6. Mr Naik then placed before us the evidence of the three eyewitnesses and contended that their evidence does not inspire confidence and should be rejected. Normally, this Court, sitting in appeal against the conviction passed by the Sessions Judge and upheld in appeal, does not reappreciate the evidence of the witnesses again. But the evidence having been placed before us and having been argued at length by the learned Senior Counsel, we have scrutinised the same. Nothing substantial has been brought to our notice in the cross-examination of these witnesses for which this Court would come to the conclusion that the witnesses are not believable. As stated earlier, PW 1 was accompanying the deceased right from the beginning when the deceased had gone to supply milk and was proceeding to offer “puja” and PWs 2 and 4 are independent witnesses who happened to be at the scene of occurrence and have narrated the occurrence vividly. The argument of Mr Naik, appearing for the appellant against acceptability of Witnesses 2 and 4 is that they were examined by the police under Section 161 CrPC on 6-10-1985 and 4-10-1985 respectively. This delay in examining the two witnesses ipso facto cannot be a ground to discard their testimony, more so, when in the cross-examination of the witnesses, nothing tangible had been brought out to impeach their testimony. On the other hand, the evidence of PWs 2 and 4 fully corroborates the reliable evidence of PW 1 and therefore, the courts below were justified in maintaining the conviction of appellant Ramesh of the charge under Section 302 IPC. In course of arguments, Mr Naik, learned Senior Counsel also raised a contention that the prosecution has not examined the independent witnesses though available and that an adverse inference should be drawn. But on going through the evidence on record, we do not find any material from which it can be said that the other independent witnesses were available and the same were not examined. That apart, PWs 2 and 4 are independent witnesses and, therefore, it is not necessary for the prosecution to multiply the witnesses. We, therefore, do not find any substance in the aforesaid submission of Mr Bhimrao Naik. 16. The Hon’ble Supreme Court has held in Ambika Prasad & another Vs. State (Delhi Administration) 2000(2) SCC 646 that :- “13. The learned counsel for the accused further raised the contention that there was delay in recording the statements of the injured witnesses, therefore, their evidence should not be accepted which also requires to be rejected. In Krishna Pal (Dr) v. State of U.P. 1996 SCC (Cri) 249 this Court rejected a similar contention of non- explanation by the prosecution as to why eyewitnesses had not been examined shortly after the incident and for inordinate delay in examining them, by holding that it would not be a ground to discard the convincing and reliable evidence adduced in the case. This contention is also considered by both the courts and has rightly not been accepted.” 17. In the case of State of U.P. Vs. Satish 2005 SCC(Cri) 642, the Hon’ble Supreme Court has held as follows :- “18. As regards delayed examination of certain witnesses, this Court in several decisions had held that unless the investigating officer is categorically asked as to why there was delay in examination of the witnesses the defence cannot gain any advantage