Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 1184 of 2001 (Old No. 1244/1997) Amar Singh … Appellant Versus State ... Respondent Sri R.S. Sammal, Advocate for the appellant Sri S.S. Adhikari, A.G.A. for the respondent Hon’ble B.C. Kandpal, J. Hon’ble Nirmal Yadav, J. Delivered by Hon’ble B.C. Kandpal. J. This Criminal Appeal preferred under Section 374 read with Section 389 Cr.P.C. is directed against the judgment and order dated 7.7.1997 passed by Special Judge/Additional Sessions Judge, Nainital, in Sessions Trial No. 5 of 1991, State versus Amar Singh, whereby appellant has been convicted under Section 302 I.P.C. and has been sentenced to undergo imprisonment for life. 2- Prosecution story in brief is that on 18.9.1990 Harish Singh, brother of complainant Nar Singh, had an alternation with accused Amar Singh, homeguard, and due to this enmity on 19.9.1990 at about 9.00 a.m. accused Amar Singh surrounded Harish Singh at Panchayatghar and stabbed with knife in his abdomen. Mohan Singh and Bhopal Singh present on the spot tried to intervene but accused also inflicted injuries to them. Harish Singh in serious condition was taken to Civil Hospital, Haldwani and complainant Nar Singh got report (Ext.Ka.1) typed and lodged at P.S. Haldwani, on the basis of which a case under Section 307 I.P.C. was registered against accused Amar Singh. As Harish Singh succumbed to his injuries on 19.9.90 at about 23 hours, the case was altered under Section 302 I.P.C. On completion of investigation, charge sheet was submitted under Section 304 I.P.C. against the accused-appellant. 3- After submission of the charge sheet accused- appellant was committed to the court of Sessions, who transferred the case to the court of 1st Addl. Sessions Judge, Nainital. The 1st Addl. Sessions Judge after hearing the parties framed charge of offence punishable under Section 302 I.P.C. against accused-appellant to which he pleaded not guilty and claimed to be tried. 4- The prosecution in support of its case got examined as many as nine witnesses, namely, PW-1 Nar Singh, PW-2 Bhopal Singh, PW-3 Mohan Singh, PW-4 Prakash Singh, PW-5 Jagannath Singh, PW-6 Krishan Singh Adhikari, PW-7 Ashok Tyagi S.I., PW- 8 Dr. C.J. Singh Hora and PW-9 Dr. G.S. Pandey. No evidence in defence has been led on behalf of the accused. 5- The accused in his statement under 313 Cr.P.C. denied all the allegations of the prosecution case and claimed his false implication in the case. 6- The trial court having considered the entire evidence on record and hearing learned counsel for parties found guilty the accused/appellant of the offence punishable under Section 302 I.P.C. and convicted and sentenced him to undergo imprisonment for life, vide impugned judgment and order dated 7.7.1997. 7- Feeling aggrieved by the aforesaid impugned judgment and order, the appellant has preferred the present appeal which has been placed before us for disposal. 8- We have heard Sri R.S. Sammal, learned counsel for the appellant, Sri S.S. Adhikari, learned A.G.A. for the State/respondent and perused the record. 9- Before further discussion, it is pertinent to mention here the injuries mentioned in injury report (Ext.Ka.13), prepared by Dr. G.S. Pandey (PW-9) on 19.9.90 at 1.40 P.m. at Civil Hospital, Haldwani. The same is being reproduced below:- (i) Stab wound 2 cm x 1 cm x depth not proved, in the abdomen. (ii) Incised wound 2 cm x 1 cm x depth not proved, on the right side of chest. Blood was oozing out of the injury. The Medical Officer (PW-9) has stated that both injuries were kept under observation and advised for x-ray and injured Harish Singh was admitted in the hospital and referred to Surgeon. According to him, injuries were fresh and likely caused by the knife on 19.9.90 at 9 a.m. 10- The post mortem examination on the dead body of Harish Singh was conducted on 20.9.1990 at 10.30 a.m. by Dr. C.J. Singh Hora (PW-8), who recorded the following ante mortem injuries on his person: (i) Stitched wound 3 cm on the right side of chest 5 cm below the right nipple. (ii) Stitched wound 13 cm in ‘T’ shape on the left of abdomen (iii) Stitched wound 1.5 cm on abdomen in which drainage tube was present. (iv) Stitched wound 1.5 cm on the abdomen in which drainage tube was present. The Medical Officer (PW-8), at the end of post mortem examination, opined that cause of death of deceased was shock and excessive haemorrhage as a result of injuries sustained by the deceased. He stated that he prepared post mortem report (Ext.Ka.12) at the time of examination. 11- On 19.9.1990 at 3.30 p.m. when Harish Singh (deceased) hospitalized, Krishan Singh Adhikari (PW-6) Tehsildar, Haldwani, recorded dying declaration (Ext.Ka.2) in the presence of the doctor, who certified that the patient was conscious and in a fit condition to make the statement. We feel it just and proper to reproduce the dying declaration made by the deceased and recorded in Ext.Ka.2, which is being reproduced below:- “gjh”k flasg me 22 lky iq= fo”kuflag fuoklh pkanuh pkSd /kqMnkSM gYnokuh us “k”kiFk c;ku fd;k fd ?kVuk vkt fnukd 19%9%90 dks 12%00 cts fnu dk gSA iapk;r ?kj nsoypkS M rkjk flag o eksgu flasg tks pkanuh pkSd o nsoypkSM ds fuoklh gSaA vkil es yM jgs FksA eSa bUgsa NqMk jgk FkkA ,dk,d vejflag ftlds ds firk dk uke ugha tkurk gSaA eksrhuxj dk jgus okyk gS pkdw ysdj vk;kA pkdw ls vejflag us esjs isV esa ekj nhA ,d okn esjs Nkrh ij Hkh pkdw ls fd;k gSA esjh vejflag ls iqjkuh dksbZ jaftl ugh FkhA vU; pksVsa esjs “kjhj ij ugh gSA vejflag us ea>s pkdw ls D;ksa ekjk eSa dkj.k ugh crk ldrk gwWA eSa ;g c;ku viuh gks’k gokl esa ns jgk gwWA ;gh esjs c;ku gS lqudj rlfnd fd;kA” 12- The prosecution in order to prove the charge against accused/appellant produced PW-1, PW-2, PW-3, PW-4 and PW-5 as witnesses relating to the factum of the occurrence. However, during the course of trial, these witnesses, except PW-1, have not supported the prosecution story to the extent that they had seen accused/appellant Amar Singh committing murder of Harish Singh or stabbing him with knife and they were declared hostile by the prosecution. 13- PW-1 Nar Singh, complainant is an eyewitness, who has narrated the prosecution story. According to this witness, about 4 years 6-7 months back i.e. on 19th day of the month at about 9.00 a.m. he was coming to Panchayatghar in order to purchase goods for his shop and when he was purchasing the goods he saw accused Amar Singh stabbing Harish Singh with knife, and Mohan Singh and Bhopal Singh intervening in the quarrel also sustained injuries. This witness has also stated that he brought his brother in injured condition to Civil Hospital, Haldwani by tempo and got him admitted therein and got his injuries medically examined and thereafter he got report (Ext.Ka.1) typed and lodged at P.S. Haldwani. He has further stated that his brother Harish Singh succumbed to his injuries in the hospital on the same day. This witness has also been cross examined by the defence at length, but nothing has come out which discredits his testimony as against the accused/appellant. 14- PW-6 Krishan Singh Adhikari, Tehsildar, Haldwani, recorded dying declaration (Ext.Ka.2) of the deceased Harish Singh on 19.9.90 at 3.30 p.m. and got his thumb impression thereon. He also testified that Harish Singh was fully conscious and in a fit position to make his statement, regarding which doctor attending him also appended his certificate. 15- PW-7 S.I. Ashok Singh investigated the case and during investigation he conducted inquest proceedings, prepared inquest report (Ext.Ka.13), photo lash, challan lash, letter (Ext.Ka.4 to Ext.Ka.6) and thereafter sent the dead body for post mortem examination. This witness has stated that he inspected the place of occurrence and prepared site plan (Ext.Ka.7). He has further stated that he requested Tehsildar Haldwani to record dying declaration of the deceased Harish Singh. After completion of the investigation he submitted charge sheet (Ext.Ka.8) against the accused Amar Singh. 16- From the statement of PW-6 Krishan Singh Adhikari, it is clear that at the time of making statement on 19.9.90 at 3.30 p.m. Harish Singh was in a fit condition to make dying declaration. On that very day PW-6 Tehsildar, Haldwani, proved the dying declaration (Ext.Ka.2) recorded by him quoted above. The deceased has not named anyone except Amar Singh (accused). Further, the dying declaration gets corroboration from the ocular evidence of PW-1 Nar Singh, who has narrated the prosecution case in the same manner as recorded by the deceased in the dying declaration. Apart from the dying declaration, the motive is also proved on record. PW-1 Nar Singh, brother of the deceased, has stated that one day prior to the occurrence i.e. on 18.9.1990 his brother Harish Singh had an altercation with accused Amar Singh and due to this enmity, on 19.9.1990 accused Amar Singh surrounded Harish Singh and stabbed with knife in his abdomen. Though the motive in the present case appears to be weak one, even then here the motive does not play any important role as there is direct eyewitness account is available. The statements of these witnesses i.e. PW-1, PW-6 and PW-7 read with the dying declaration quoted above and the ante mortem injuries found on the person of the deceased read with statement of Dr. C.J. Singh Hora, who conducted autopsy, and PW-1 Nar Singh, who admitted the deceased in Civil Hospital, Haldwani, fully prove the charge of offence punishable under Section 302 I.P.C. against accused/appellant, on the record. 17- Learned counsel for the appellant has argued that the F.I.R. has been lodged after consultation and deliberation and the same is highly belated. We have re-examined the evidence on record and find that no undue delay has been caused in lodging the F.I.R. The time of occurrence has been alleged as 9.00 a.m. in the F.I.R. but Harish Singh in his dying declaration has stated that occurrence took place at 12.00 am. The time alleged by the declarant Harish Singh appears to be more acute. Had the occurrence taken place at 9.00 a.m. the F.I.R. must have been lodged by 10 or 11 a.m. Further, from the statement of Dr. G.S. Pandey, it is clear that he examined injuries of Harish Singh on 1.40 p.m. on 19.9.90 and looking the condition critical of Harish Singh, he was shifted to Civil Hospital and medically examined there as well as treated accordingly and thereafter F.I.R. was lodged at 2.20 p.m. by PW-1 Nar Singh. 18- Learned counsel for the appellant further argued that alleged dying declaration (Ext.Ka.2) recorded by Tehsildar Krishan Singh Adhikari (PW- 6) creates doubt on the prosecution case as the doctor who alleged to have appended his certificate on dying declaration, has not been examined by the prosecution. 19- The argument of learned counsel for the appellant that doctor who had appended his certificate on dying declaration (Ext. Ka-2) has not been produced during the course of trial, does not affect the prosecution case. It was not mandatory for prosecution to examine the doctor who appended a certificate about the mental fitness of declarant Harish Singh but the Magistrate must have satisfied himself about mental state of declarant. PW-6 Krishan Singh Adhikari, Tehsildar, recorded dying declaration (Ext.Ka.2) on 19.9.90 at 3.30 p.m. and Harish Singh died in the hospital at 11 p.m. i.e. 7.30 hours after recording dying declaration. The doctor was present at the time of recording of dying declaration (Ex. Ka-2) and he had made an endorsement with regard to the mental condition of the declarant that he was fully conscious. He has also attested the thumb impression of the injured. Tehsildar Krishan Singh Adhikari (PW-6) who recorded the dying declaration, categorically stated that after verifying the condition of Harish Singh (deceased) that he was in a fit condition to make the statement and after the doctor had given the certificate, he recorded the statement of Harish Singh (deceased). This witness categorically stated that whatever was stated by Harish Singh (deceased) had been correctly recorded by him. There is nothing on record to suggest that Tehsildar did not satisfy himself about mental state of Harish Singh, and he was not fit to make his statement on 19.9.90 at 3.30 p.m. 20- It is also argued on behalf of the accused- appellant that possibility of tutoring the deceased in this case cannot be ruled out as family members of the deceased were present immediately before recording dying declaration of the deceased. We have re-examined the evidence on record and find that there is no long gap between the time when the injury report (Ext.Ka.13 ) and dying declaration (Ext.Ka.2) were prepared. Injury report (Ext.Ka.13) was prepared on 19.9.90 at 1.40 p.m. and dying declaration (Ext.Ka.2) was recorded on the same day on 3.30 p.m. The F.I.R. of the occurrence was lodged on 19.9.90 at 2.30 p.m. The condition of Harish Singh was serious and under these circumstances there was no occasion with PW-1 or his family members to have tutored Harish Singh who was fighting for his life. Moreover, presence of PW-1 Nar Singh being his brother in the hospital is very natural at such critical time. There is nothing on record that immediately before recording the statement of Harish Singh by the Magistrate on 19.9.90 anyone had an occasion to tutor the deceased in a short span of critical time. 21- For the reasons stated above, we do not find any merit in this appeal. The appeal is liable to be dismissed. 22- The appeal is dismissed. The conviction and sentence awarded by the trial court against accused/appellant Amar Singh, under Section 302 I.P.C., is affirmed. The appellant is on bail. His bail is cancelled and sureties discharged. Registry is directed to send the lower court record back to the trial court to make the accused/appellant Amar Singh served out the sentence awarded against him. (Nirmal Yadav, J.) (B.C. Kandpal, J.) May 19th, 2010 SP