IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL (Chapter VIII, Rule 32(2)(b) Description of the Case. Criminal Appeal No. 165 of 2002 Date of decision :- 14th March, 2008 A.F.R. (Approved for Reporting) Not approved for Reporting Initials of Judge Date: 14.03.2008 Note:- Bench Reader will attach this at the top of first page of the judgment when it is put up before the Judge for signature. HIGH COURT OF UTTARAKHAND, AT NAINITAL Criminal Appeal No. 165 of 2002 1. Sriram S/o Daya Nand. 2. Mohan S/o Molhad. 3. Shyam Lal S/o Molhad. 4. Pramod S/o Mohan. All resident of Village Hazzarpur P.S. Manglore, District Haridwar. ..… Appellants Versus State of Uttarakhand …..Respondent Mr. Navneet Kaushik, Advocate for the appellants. Mr. Nandan Arya, Assistant Government Advocate for the respondent. JUDGMENT Hon’ble J.C.S. Rawat, J. This is an appeal against the judgment and order dated 12.7.2002 passed by the then Assistant Sessions Judge (First Fast Track Court), Roorkee District Haridwar in ST No. 68/1992, State Vs. Sriram and Others convicting and sentencing each of the accused appellants to undergo R.I. for five years and to pay fine of Rs.1000/- each under Section 304 Part II read with Section 34 I.P.C. In default of payment of fine, the appellants shall undergo for further three months S.I. Each of the appellants were also convicted and sentenced to undergo R.I. for six months u/s 323 r/w 34 I.P.C. However, appellant Pramod was acquitted u/s 307 I.P.C. and the other appellants namely Mohan Sriram and Shyam Lal were acquitted from the charges punishable u/s 307/34 I.P.C. 2. Brief facts of the prosecution case are that accused appellants threw garbage, etc. in the ‘gher’ of the complainant Ramnath. Seeing this on 14.11.1991 at about 2 pm., the complainant Ramnath protested the said throwing of garbage to his ‘gher’. In retaliation to this, the accused appellants with a common intention came to the house of complainant equipped with conventional weapons. The accused Sriram and Mohan were having ‘lathis’ in their hands, Shyamlal was having ‘saria’ in his hand whereas Pramod was having a country made pistol in his hand. All the four appellants with a common intention to kill the complainant party assaulted them. The accused Pramod with an intention to kill Ramesh Chandra fired from his country made pistol upon him but he escaped from the said fire. The accused appellants Sriram, Mohan and Shyamlal with an intention to kill Ramnath and Ramesh Chandra, started assaulting them badly with the weapons possessed by them. When Pramod one of the members of the complainant party came at the place of incident to save Ramnath, he, too, was assaulted by the appellants. It is stated that the said incident was seen by Dharam Singh, Anand Prakash and Ramlal. Ramnath, Ramesh and Pramod (complainant party) sustained injuries in the said incident. they were immediately taken to the Roorkee Civil Hospital. Looking to the serious conditions of the injured Ramnath and Ramesh Chandra, the doctors of the Roorkee Civil Hospital referred them to Hardwar Civil Hospital for better treatment. Consequently, they were shifted to Hardwar Civil Hospital. The doctors of the Civil Hospital, Hardwar, looking to the serious condition of the injured Ramesh Chandra, referred him to the Meerut Medical College, Meerut for better treatment. Ramesh Chandra was taken to Meerut Medical College. Ramnath remained admitted in the Civil Hospital, Hardwar and was discharged from the hospital on 16.11.1991. The injured Ramesh Chandra was operated on 15.11.1991 at Meerut Medical College but his life could not be saved and ultimately, he expired on 16.11.1991 in the Meerut Medical College Hospital. The autopsy on the dead body of the deceased Ramesh Chandra was conducted on 17.11.1991 in the Civil Hospital, Meerut itself. In the meantime, Manoj Kumar, son of the deceased Ramesh Chandra who is said to have been staying with the injured Ramnath at Civil Hospital, Hardwar, went to police station Manglore on 15.11.1991 to lodge the report of the incident. Before he could reach the police station Manglore, the accused appellants Sriram and Mohan met him on the way to the police station and threatened to kill him if he would report the matter to the police. Thereupon, the complainant Manoj Kumar went to the Roorkee Court where he filed an application under Section 156 (3) Cr.P.C. narrating the entire incident to the Magistrate who was having the jurisdiction of the area. Thereafter, the learned Magistrate directed the police to register the case and investigate the matter. the investigation was started immediately after lodging the report on 16.11.1991 at the police station and the case was also converted under Section 304 I.P.C. at the police station due to the demise of the deceased Ramesh Chandra at the Meerut Medical College. The Investigating Officer after completing the investigation submitted the chargesheet against the accused appellants. 3. After submission of the chargesheet, the accused appellants were committed to the court of Sessions by the learned Magistrate and the trial court after hearing the parties framed charges against the accused appellants. The accused appellants denied the charges levelled against them and claimed to be tried for the offences. 4. The prosecution in support of its case examined Ramnath PW1 and Pramod Kumar PW3 who are said to be the injured eyewitnesses of the incident. Manoj Kumar PW4 is the informant of this case. He is the son of the deceased Ramesh Chandra. The prosecution also examined Dr. S.K. Srivastava PW9 who medically examined the injured persons at Roorkee Hospital and prepared the medical reports of all three inured persons. Dr. Pradeep Bharti PW5 conducted the operation on the injuries of deceased Ramesh at the Meerut Medical College, Meerut. Dr. R. Singh PW7, Medical Officer, Meerut Civil Hospital conducted the autopsy on the dead body of the deceased Ramesh Chandra. S.I. Netra Pal Singh PW10 is the Investigating Officer of the case. Shishupal Datt PW2, S.I. Rameshwar Prasad Sharma PW6 and S.I. Ved Prakash PW8 are the formal witnesses in this case. 5. The accused appellants were examined under Section 313 Cr.P.C. and they have denied all the averments made in the evidence and they have stated that they have been falsely implicated in the case and the first information report has been lodged against them with false allegations. The appellants did not adduce the defence evidence in support of their case. 6. After appreciating the evidence, the learned trial court convicted and sentenced the accused-appellants as indicated above. 7. I have heard the learned counsel for the parties and perused the record. 8. At the outset, it is pertinent to mention that there is no dispute that Ramnath PW1 and Pramod Kumar PW3 sustained injuries on the date of the occurrence. It is not disputed that the deceased Ramesh Chandra died on 16.11.1991 due to the injuries sustained by him on the date and time of the occurrence. According to the prosecution evidence, the injured Ramnath PW1, Ramesh Chandra and Pramod Kumar PW3 were taken to the Civil Hospital, Roorkee where they were medically examined by Dr. S.K. Srivastava PW9. Ramnath PW1 was examined at about 3.35 pm. on 14.11.1991 and following injuries were found on his person: (i) L.W. 3 cm. x 0.25 cm. x scalp deep on left side of head at ante. Hair line. Kept U.P. (ii) L.W. 4 cm. x 0.5 cm. x scalp deep on left side of head 8 cm. above left ear. Kept U.O. (iii) L.W. 6 cm. x 1 cm. x bone deep on rt. Side of head, 6 cm. above rt. ear. Kept U.O. (iv) Contusion 3 cm. x 2 cm. on outer aspect of left arm in middle. (v) Abrasion 2 cm. x 1 cm. on back of left forearm in upper 1/3 portion. (vi) Abrasion 3 cm. x 1 cm. on rt. Forearm back in middle. (vii) Abrasion 2 cm. x 1 cm. on medial side of rt. Waist. (viii) Abraded contusion 6 cm. x 5 cm on lower 1/3 part of rt. Thigh anteriorly. The injury nos. 1 to 3 were kept under observation and X-ray was advised for the said injuries. The duration of the said injuries were found to be fresh and it was also opined that the injuries could have been caused by the blunt object. The Medical Officer prepared the report Ex. Ka. 11 at the time of the inspection of the injuries and further opined that the injuries sustained by Ramnath PW1 could have been caused at about 2 pm on 14.11.1991. Dr. S.K. Srivastava PW9 also medically examined the deceased Ramesh Chandra on 14.11.1991 at about 3.30 pm. and found following injuries: (i) L.W. 1 cm. x 0.25 cm x scalp deep on left side of head, 10 cm. behind left eyebrow. Surrounded by swelling 10 cm. x 8.0 cm. Kept u.O. and adv. X- ray. (ii) Contusion 5 cm. x 4 cm. around left eye. Kept U.O. Both the injuries were kept under observation and the doctor has opined that the injuries could have been caused by the blunt object. Seeing the condition of the deceased Ramesh Chandra, he was referred to Hardwar Civil Hospital. The doctor further opined that the injuries could have been caused on 14.11.1991 at about 2 pm. Dr. S.K. Srivastava PW9 also examined Pramod Kumar PW3 at about 3.40 pm. on 14.11.1991 and found following injuries: (i) Abrasion 17 cm. x 1 cm. on left side of chest extending to left side of abdomen. (ii) Abrasion 0.5 cm. x 0.25 cm. on dorsum of left little finger. According to the doctor, the injuries could have been caused on 14.11.1991 at about 2 pm by blunt weapons. The duration of injuries was found to be fresh. Thus, the medical evidence further corroborates that the above named injured persons sustained the injuries on 14.11.1991 at about 2 pm. The prosecution also examined the eyewitnesses and the injured witnesses as stated above. They have categorically stated that the injured sustained injuries on the date and time of the incident. It is established that the injuries sustained by the injured and deceased were caused on the date of occurrence. 9. Now, I have to examine as to who is the author of the injuries on the person of the deceased as well as on the injured persons. The case rests upon the direct evidence and the prosecution in support of its case, examined Ramnath PW1 and Pramod Kumar PW3 who are the injured witnesses in this case. Both the witnesses have stated in their evidence that their ‘gher’ is adjoining to the house of the accused appellants. Some garbage, etc. was thrown in their ‘gher’. Seeing this, Ramnath PW1 objected for doing so. Thereupon, all the four accused appellants came at the place of incident with a common intention, having ‘lathis’, ‘shariya’ and a country made piston in their hands. They assaulted Ramnath PW1 and Ramesh Chandra with the intention to kill them. Appellant Pramod, in furtherance of the common object, fired from the country made pistol upon Ramesh Chandra but he escaped from the said fire. The appellants Sriram, Shyam Lal and Mohan assaulted the complainant party i.e. Ramnath and Ramesh Chandra with lathis and ‘sariya’ which they were possessing with them. When Pramod Kumar came to rescue Ramnath and Ramesh, he, too, was beaten by the accused appellants. All the three injured namely, Ramnath, Ramesh and Pramod sustained injuries in the incident and thereafter they were taken to the Roorkee Hoslpital. Ramnath and Ramesh Chandra were referred to the Civil Hospital, Hardwar. Ramnath PW1 was admitted in the Civil Hospital, Hardwar and he remained there till 16.11.1991 whereas the injured Ramesh Chandra was referred by the Civil Hospital, Hardwar to the Medical College, Meerut for better treatment. It is also in the evidence that he was operated there and later on, he succumbed to his injuries on 16.11.1991. 10. Both the injured eyewitnesses namely, Ramnath PW1 and Pramod Kumar PW3 have narrated the entire incident. The trial court has minutely scrutinized the evidence of all the witnesses and found them consistent and reliable. With the assistance of the learned counsel for the parties, I have gone through the entire evidence adduced by the prosecution. After considering the entire evidence, in tot, the trial court found the evidence to be implicitly truthful and reliable. Though the presence of the witnesses was attempted to be shown as doubtful. I do not find any reason to accept this plea. Their presence at the place of occurrence was explained. Their evidence cannot be thrownout as unreliable and tainted only because they are related to the deceased persons or, because they themselves are the only injured eyewitnesses of the incident. It was attempted to be shown that the evidence of both the eyewitnesses i.e. Ramnath and Pramod Kumar, as doubtful, as no independent witness was produced in support of their case. It is a settled position of law that it is not always necessary to multiply the evidence of the incident on the same point. It has to be seen what is the quality of the witnesses. It is 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 would not be required further. It cannot be lost of the sight that the public is reluctant to appear and depose before the court, especially, in criminal cases because criminal cases are kept dragging for years to come and the witnesses are harassed a lot. In the instant case, the incident took place in the year 1991 and the sessions trial started in the year 1992 whereas the evidence of the witnesses were recorded in the year 2000 after a lapse of nine years of the incident. It cannot be lost of the sight that sometimes the witnesses are being threatened and intimidated and, at the top of all, they are subjected to unnecessary and lengthy cross-examination. So due to above reasons, the witnesses avoid to come to the court. If the evidence of the prosecution is found credible and cogent and the other circumstances also lend credence, the evidence of such witnesses cannot be discarded only on the ground that other available witnesses had not been produced before the court. It is also pertinent to mention in this case that Ramnath PW1 and Pramod Kumar PW3 are the injured witnesses in this case. They have sustained the injuries in the said incident and one of them i.e. Ramesh Chandra died later on. There is no doubt that Ramnath PW1 and Pramod Kumar PW3 sustained the injuries in the same incident in which Ramesh Chandra died due to the injuries sustained by him at the time of incident. the presence of the injured witnesses cannot be doubted at the place of incident. They have narrated the meticulous details of the incident in their evidence. The defence counsel has cross-examined the said injured witnesses at length but nothing could be elicited from their evidence to discredit their testimony. It is a settled position of law that an injured eyewitness stands on a higher pedestal than an ordinary witness. It is also well settled principle of law that the testimony of an injured witness is sufficient to base the conviction and no further corroboration is required. The presence of the injured witness cannot be discarded lightly. There is no doubt about the presence of the injured witnesses at the time of the incident. The testimony of injured witnesses has its own relevance and efficacy. {See Narendra Nath Khaware Vs. Parasnath Khaware and others 2003 SCC (Cri) 1144 and State of U.P. Vs. Kishan Chand and others 2004 SCC (Cri) 2013} 11. It has come in the statement recorded under Section 161 Cr.P.C. of Ramnath PW1, that other persons of the locality came at the place of incident, though he denied this fact during the course of the evidence that he had stated so to the Investigating Officer. He has stated in his evidence that Dharam Singh, Anand Prakash and Ramlal also intervened in the melee to save the injured persons and there were so many houses adjoining to the place of incident. It was attempted to be shown that the prosecution could have adduced independent witnesses to corroborate the evidence of the injured witnesses. It is pertinent to mention here that during the trial of the case, an application was given by the prosecutor before the trial court that Anand Prakash and Dharam Singh have been won over by the prosecution and they were discharged. This fact was not disputed before me by the learned counsel for the defence. The only witness who is said to have not been examined was Ramlal and, he was also discharged by the prosecution on the ground that Ramlal is the brother of Ramnath PW1. If the evidence of the injured witnesses is found credible and cogent by the trial court, it need not be multiplied by other witnesses. The Hon’ble Apex Court in Komal and others Vs. State of U.P. 2002 SCC (Cri) 1600 has held as under: “11. Learned counsel next contended that though, according to the statements of witnesses, some villagers had arrived at the place of occurrence when the members of the prosecution party were begin assaulted and they intervened in the matter, none of them has been examined in the case on hand. In our view, non-examination of these witnesses by itself would not affect the veracity of the prosecution case when the evidence of PWs 2 and 4, the two injured eye witnesses who had received multiple injuries, has been found to be trustworthy and their evidence is corroborate by the informant PW5 and supported by medical evidence as will as objective finding to the investigation officer.” 12. It has further been held in Babu Ram Vs. State of U.P. 2002 SCC (Cri) 1400 as under: “7. It was submitted by the learned counsel for the appellants that Ram Autar, an independent eye witness present at the scene of occurrence according to the prosecution case and a government servant has not been examined, and therefore, an adverse inference should be drawn against the prosecution. It is settled law that non- examination of any eye-witness cannot be pressed into service like a ritualistic formula for discarding the prosecution case with a stroke of the pen. An effort should be made at appreciating the worth of such evidence as has been adduced. If the evidence coming from the mouth of the eye witnesses examined in the case is found to e trustworthy and worth being relied on so as to form a safe basis for recording a finding of guilt of the accused persons then non- examination of yet another witness who would have merely repeated the same story as has already been narrated by other reliable witnesses would not cause any dent or infirmity in the prosecution case. In the case at hand we additionally find from the testimony of Ashrafi Lal that in spite of being a government servant and not involved in local village disputes he is afraid of deposing against the accused persons and there is substance in the submission of the learned counsel for the State that Ram Autar if tendered in the witnesses box would have followed the same track as was chosen by Ashrafi Lal P.W. 3.” 13. In view of the above, it was not obligatory upon the prosecution to multiply the witnesses on the same point if the witnesses of the prosecution were found credible and cogent. 14. It was further attempted to be shown that the evidence of the injured witnesses is doubtful on the ground that they are related to the deceased and also related with each other. It is a settled position of law that any person even though he is related to the deceased or the injured, he is a competent witness under the provision of the Indian Evidence Act. Merely being a related witness, his evidence cannot be discarded solely on the ground of being related with the victim. The court has to appreciate the evidence on its merit as to whether the evidence of the witnesses is credible or cogent. There is no rule of law or purpose which requires that the evidence of a close relation must be discarded for the simple reason that they are related to each other. 15. By now, it is also well settled principle of law that animosity is a double edge weapon. It cuts both sides. It can be a ground for false implication and also a ground for assault. Just because the witnesses are related to the deceased or other injured persons, their testimonies could not be discarded, if otherwise, their testimonies inspires confidence. In the present case, they are natural witnesses of the incident. Similarly being relatives, it would be their endeavour to see that the real culprits be punished and normally they would not implicate wrong persons in the crime, so as to allow the real culprit to escape unpunished. 16. The above proposition of law was settled in Masalti Vs. State of U.P. AIR. 1965 SC 202, this Court observed: “14. 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’s partisan would invariable 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’s partisan cannot be accepted as correct.” 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.” 17. In the case of State of Punjab Vs. Karnail Singh reported in 2004 SCC (Cri) Page 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 DalipSingh 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.” Thus, the evidence of injured witnesses cannot be discarded only on the ground that they are merely related to each other or they are related to the deceased. Therefore, I do not find any force in the contention of the learned counsel for the appellants. 18. The learned counsel for the appellants further contended that there is a delay in lodging the F.I.R. Thus the appellants were falsely implicated after due deliberation. Learned A.G.A. refuted the contention. It is a settled position of law that merely on the ground that there was a delay in lodging the F.I.R., the prosecution evidence cannot be discarded. It is also a settled position