IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 106 of 2005 Satish Kumar. .……… Appellant Versus State of Uttarakhand. ………. Respondent Mr. Rajesh Sharma, Advocate for the appellant. Mr. Amit Bhatt, Addl. Government Advocate for the State / respondent. Coram: Hon’ble Barin Ghosh, C.J. Hon’ble V.K. Bist, J. Dated: 9th September, 2011 BARIN GHOSH, C. J. By the judgment and order under appeal, appellant Satish Kumar has been found guilty of having committed an offence punishable under Section 302 of the Indian Penal Code and, accordingly, has been sentenced to life imprisonment and has also been directed to pay a fine of Rs. 5,000/- and, in default of paying the same, to undergo one year’s additional imprisonment. 2. A First Information Report was filed by PW1 Prakash Chauhan. In that, it was stated that the victim Dinesh Kumar is the nephew of PW1. It was stated that the victim used to sell chaat and, for that purpose, used to have aamchur grinded at the shop of PW1. It was stated that on 29th May, 2004, at about 05:45 a.m., victim was coming for the purpose of grinding aamchur when the father of the appellant (Raghubir) caught hold of the victim and the appellant stabbed the victim in front of the residence of PW3 Mahi Lal. It was also stated that the appellant was a tenant of PW3. It was stated that the victim made noise, which brought PW3 and PW5 Vijay Pal to the spot. Appellant and his father fled away. The victim was, thereupon, taken to the Doon Hospital, where he was medically examined by PW12 Dr. Hemant Bhardwaj. The victim was, thereupon, taken to Mahant Indresh Charan Das Hospital, Patel Nagar, Dehradun, for better treatment. After getting the victim admitted in the 2 said hospital and leaving PW5, who was the brother of PW1, PW1 returned and lodged the First Information Report. The said First Information Report was registered in respect of commitment of cognizable offences punishable under Sections 324 / 504 / 506 of the Indian Penal Code. 3. PW14 S.I. Rameshwar Prasad Purohit investigated into the allegations made in the First Information Report. He prepared the site plan of the spot, where the incident allegedly took place. He also went to Mahant Indresh Charan Das Hospital to record the statement of the victim on 29th May, 2004; 30th May, 2004; 1st June, 2004; and 2nd June, 2004, but could not record his statement as the victim was unconscious. On 2nd June, 2004, he took the blood-stained cloths of the victim and prepared recovery memo thereof. On 2nd June, 2004, itself, he arrested the appellant at 07:00 p.m. and recovered his blood-stained shirt and prepared recovery memo thereof. On 4th June, 2004, victim died and, accordingly, the case was converted under Section 302 of the Indian Penal Code. After completion of the investigation, charge sheet was filed. On the basis thereof, charges were framed under Section 302, read with Section 34, of the Indian Penal Code against the appellant and his father. Both of them denied having committed the crime alleged against them. Hence, trial commenced. 4. Prosecution sought to establish the charge through oral as well as documentary evidence. One of the documentary evidences was the injury report prepared by PW12. In that, it was indicated that the victim suffered three injuries. PW8 Dr. P.C. Kapri deposed that he conducted post mortem of the deceased. According to the post mortem report, and evidence of PW8, victim suffered seven injuries. The post mortem report reported four stitches on the wounds. Three of them were in respect of the injuries as were reported in the injury report. The other four were abrasion on right nipple, contusion on right side of chest, contusion above stitched left hand injury and stitched wound on left hand little finger. 3 5. The First Information Report was in writing. PW4 Mahesh Bhati was the scribe thereof. In his evidence, PW4 deposed that, after writing the report, the same was read over to PW1, whereupon, PW1 signed the report. 6. PW14 prepared the site plan. In the site plan, location of the shop of PW1 was not indicated. It was, however, indicated that Chaatwali Gali meets the road, which leads towards Kalyan Ashram on the left and Patel Nagar on the right and, thereby, forms a ‘T’ intersection. Opposite Chaatwali Gali, on the road, is the Key factory, left of which, is the shop of Ram Avtar, and, right of that, is cycle repairing shop. At the intersection, on the left side of Chaatwali Gali, is a tailoring shop and next to that, on Chaatwali Gali, is the house of PW3. It was shown that PW5 was on the road a few paces away from the spot, where the incident took place and that witness saw the incident from the shop of Ram Avtar. 7. At the trial, on behalf of prosecution, PW1 deposed. In his examination- in-chief, PW1 deposed that at around 05:45 a.m. of 29th May, 2004, he had gone for morning walk, when he saw the victim lying and 60-65 people had gathered there. They were taking the name of the appellant. He took the victim to Doon Hospital, where a number of people accompanied him. PW1 further deposed that the Officer-in-Charge asked PW4 to write a report and obtained his signature thereon. He said that the First Information Report contains his signature. The First Information Report was read out to him when he said that this is the report, which was written. With that, he added that the Officer-in-Charge had told him about the contents of the report, but the same was not written on his instructions. PW1 was declared hostile. 8. PW3, according to the statements recorded under Section 161 of the Code of Criminal Procedure, is also an eye-witness. In his deposition, PW3 stated that Prakash called him at around 05:45 a.m. on the date of the incident, when he was sleeping; he did not see the incident; he knew the victim; who killed him is not known to him; he also do not know whether the victim had any quarrel with anyone on the previous day. The said witness was also declared hostile. 4 9. PW4 Mahesh Bhati deposed that he wrote the First Information Report and, after writing the same, he read over the report to PW1, whereupon, after hearing what he had read over, PW1 signed the same. He stated that the report was not lodged on the dictates of the Officer-in-Charge. He said that the report was lodged by PW1 and the Officer-in-Charge did not read over the same to PW1. However, he stated that he went to the police station at around 10:00 a.m.; whereas PW2 proved lodgment of the First Information Report at 09:30 a.m. 10. PW5 deposed that the victim was his nephew. He said that on the date of the incident, at around 06:00 a.m., he was taking tea when he saw that two hand-pulled carts were parked in front of the house of PW3; his nephew, the victim, was going; appellant and his father caught hold of him, they are present in court, and both of them made the victim fall down; appellant stabbed the victim; at the spot, Ram Avtar, PW3, Omkar were present and wife of the victim had also gathered there; all of them made noise. Thereupon, appellant and his father fled away. Thereafter, victim was taken by all of them to Doon Hospital and, from there, to Mahant Indresh Charan Das Hospital. Victim was treated at Mahant Indresh Charan Das Hospital, where he died. In cross- examination, PW5 stated, amongst others, that his house is about 200-300 paces away from the place of occurrence; the victim was his nephew; victim used to stay with him. He further stated that, on the date of the incident, he was grinding spices in the shop of PW4, door of which opens towards west. He also stated that from his house, he first came to the shop of PW4 and, there, he was having the spices grinded. It was stated that the shop of PW4 is situated 4-5 houses away from the place of incident. PW5 stated that the victim was stabbed 4-5 times; Officer-in-Charge took his statement after 2-3 days; there were 4-5 people at the place of occurrence; Ram Avtar, PW3, Suresh, he himself, wife of the victim, Omkar, Rakesh and PW1 were there; no one else was there; at the time of giving his statement to the Officer-in-Charge, he had furnished those names; after hearing the statements recorded under Section 161 of the Code of Criminal Procedure, he said that the names of Omkar, wife of the victim, Rakesh and PW1 were not recorded; he cannot say 5 why the Officer-in-Charge did not record the said names. He also stated that the statement to the effect that ‘Dinesh was going’ has not been recorded in the statements under Section 161 and that the Officer-in-Charge had taken his statements once only. He further stated that the wife of the victim came after him; Omkar is his nephew and he stays by the side of his house; Omkar was with him; and the house of Rakesh is situated opposite to the shop of PW4, which is by the side of the house of Rajesh. In answer to the court, he stated that he had gone with the victim; there was no weapon with them; they were 4- 5 people; assailants were 2-3 in number; from before, he did not know the assailants nor he know them now; the incident is about 8-9 months’ old; victim was caught hold by the father of the appellant, i.e. Raghubir, and he was hit by the appellant; appellant had a knife in his hand; he was about 4-5 paces away from the place of occurrence; Raghubir had no knife; he did not try to catch the father of the appellant for they would have killed him; he cannot say about the nature of the knife; blood was present at the place of occurrence, which was washed away by the daughter-in-law of PW3; the Officer-in-Charge had reached the spot at the time when the blood was being washed out; the Officer- in-Charge had also gone to Mahant Indresh Charan Das Hospital; there was blood stain on his cloth, which he had washed out. PW5 further stated that it is incorrect to say that he did not see any incident or he reached the place of occurrence after the occurrence had taken place or when the assailants had fled. To the counsel, in cross-examination, he nodded that no one chased the assailants. 11. At this juncture, it would be appropriate to note that, in cross- examination, PW3 had stated that the appellant was his tenant. It was stated that PW5 (Vijay Pal) is the paternal uncle of the victim and distantly related maternal uncle of the appellant. The evidence of PW5 was not directly corroborated by any of the prosecution witnesses. 12. The motive of the crime was not ascribed by any of the prosecution witnesses. Prosecution wanted to establish commitment of the crime through three eye-witnesses, namely, PW1, PW3 & PW5. PW1 and PW3 became 6 hostile. Because PW3 became hostile, the motive for the crime, as was sought to be established, could not be established. 13. It was contended before the trial court that the evidence of PW5 should not be accepted, inasmuch as, he had stated that he did not know the appellant nor does he know him even now. It was also contended that the injuries, as were sustained by the victim and proved by PW8, and the injuries sustained by the victim and as are evident from the post mortem report and the evidence of PW12, are different. It was also contended that the murder weapon was not recovered. The learned trial court accepted the evidence of PW5 on the basis of corroboration given in the First Information Report, which contained the signature of PW1 and which was written by PW4. The learned trial court found that the evidence of PW1 and PW3 was to the effect that they were part of the people, who had taken the victim to the hospital. Both of them saw the victim lying at the spot indicated in the site plan. The trial court felt that, while PW5 stated that he did not know the appellant nor does he know him now, but, in so many words, stated what the father of the appellant did and what the appellant did by taking their names. The learned trial court, therefore, accepted the prosecution version principally on the basis of the evidence of PW5, supported or corroborated by the evidence of PW1 and PW3 and, in particular, the First Information Report. 14. The question before this Court is whether, in doing so, the learned trial court committed any error or not. 15. From the evidence of PW3, it appears that PW5 was related to the victim and also to the appellant. One thing is not knowing a person and the other thing is not even seeing him ever. In the instant case, PW5 had stated that he did not know the appellant, but no question was put to him whether he had seen the appellant on any day before he had seen him in the court. Therefore, only on the basis of the statement given by PW5 that he did not know the appellant nor he knows him now, his evidence could not be rejected. Furthermore, the First Information Report was written by PW4, who stated that the same was written by him at the request of PW1 and after he had written the 7 same, the report was read over to PW1 and, only after hearing what has been written in the report, PW1 signed the same. This piece of evidence has not been shaken in any manner whatsoever. In the absence of something more, the mere difference of time of reaching the police station by PW4 is not of great consequences. The statement, thus, given in writing, cannot be altered by giving contrary oral evidence. The law does not permit the same. Therefore, there was evidence of PW1, as recorded in the First Information Report signed by him after the same was written at his instance by PW4, corroborating the evidence given by PW5. The evidence of PW5, looked from any angle, does not show that he had stated anything, which the court, in the circumstances, could not accept. When there is evidence of an eye-witness, which stands corroborated by other available evidence, as was available in the instant case, as stated above, it was not necessary to prove the motive. Similarly, recovery of the murder weapon is always not sine qua non for proving that the murder alleged has been committed by the person accused. The fact remains, to which there is no dispute, that the victim suffered stab injuries. Both the doctors reported of the same. The stab injuries, sustained by the victim, were so severe that the victim did not gain his consciousness and, later, died. In the circumstances, in the absence of production of the weapon, used for causing the injuries, the court could not come to the finding that the injuries were not caused by stabbing. The evidence given by two doctors has not been shaken at all nor was attempted to be shaken. The discrepancy in the injuries, reported by two doctors, is not significant at all. In fact, the same suggests the truth and substance of the evidence given by the doctors. While the first doctor, having had noticed the injuries sustained, referred the victim to another hospital and, at that time, pointed out the grievous injuries, which were suffered by the victim; in the post mortem report, it has come that those grievous injuries were stitched. Remaining four injuries, as were reported in the post mortem report, as would be evidenced therefrom, were not grievous in nature. The post mortem report reported that the victim died in view of those ante mortem injuries. Therefore, failure to bring before the court the instrument used for causing the subject injuries, was not such a failure that the prosecution case can be said to be unacceptable. In the circumstances, the conclusion would be that there is no scope of interference with the findings of the learned trial court. 8 16. The appeal, accordingly, fails and the same is dismissed. 17. Before we part, it would be appropriate on our part to record that the trial court exonerated the father of the appellant (Raghubir) of the charge brought against him of having committed a crime punishable under Section 302, read with Section 34, of the Indian Penal Code. (V.K. Bist, J.) (Barin Ghosh, C. J.) G