IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Chapter VIII, Rule 32(2)(b) Description of case Date of decision: 31.03.2008 Criminal Appeal No. 776 of 2001 (Old No. 1528 of 1991) A.F.R. (Approved for Reporting) Not Approved for Reporting (Initial of Judge) Date: 31.03.2008 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. Reserved IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 776 of 2001 (Old No. 1528 of 1991) Neeraj Kumar alias Lale alias Nate S/o Shri Kamal Kishan R/o House No. 62/103, Old Dalanwala, P.W. Dalanwala, District Dehradun …………………Appellant. Versus State ………….Opposite Party. Sri S.K. Agrawal, Senior Advocate assisted by Sri Ramji Srivastava, learned counsel for the appellant. Sri Amit Bhatt, learned Additional Government Advocate assisted by Sri M.A. Khan, Brief Holder for the State. Hon’ble Prafulla C. Pant, J. Hon’ble Dharam Veer, J. [Per- Prafulla C. Pant, J.] This appeal, preferred under section 374 of Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), is directed against the judgment and order dated 13.08.1991, passed by II Additional Sessions Judge, Dehradun, in Sessions Trial No. 75 of 1989, whereby accused / appellant Neeraj Kumar alias Lale alias Nate is convicted under Section 302 of Indian penal Code, 1860 (hereinafter referred as I.P.C.), and sentenced to undergo imprisonment for life. (2) Heard learned counsel for the parties and perused the lower court record. (3) Prosecution story in brief is that on 01.02.1989 at about 12.30 noon accused / appellant Neeraj Kumar came to the house of Surat Singh Chauhan and objected why his land is being encroached upon. On this some quarrel took place between accused / appellant and Surat Singh Chauhan (deceased), whereafter he threatened him to see by the evening. Thereafter on the same day i.e. on 01.02.1989 at about 6.30 P.M. Surat Singh Chauhan (deceased) was at his house in Tarla Adhoiwala, Dehradun. He was suffering from headache and sent his minor son Raju alias Rajesh (P.W.3) to bring some tablet (medicine) from shop of Mohan Singh Bist (P.W.1). When Rajesh came back from the shop with medicine he told his father (surat Singh Chauhan) that accused / appellant Neeraj Kumar asked him to tell his father to come to the shop of Mohan Singh Bist. Being suspicious Surat Singh Chauhan firstly sent Bali Ram (P.W.5), his nephew to see if he is really called by Mohan Singh Bist and if Neeraj Kumar is there. Bali Ram (P.W.5) returned back and told that Neeraj Kumar is not on the way. On this Surat Singh Chauhan proceeded for the shop of Mohan Singh Bist, who was followed by Bali Ram (P.W.5), his nephew, so that no untoward incident takes place. Surat Singh Chauhan after meeting Sri Bist when started walking back to his house accused Neeraj Kumar along with his two associates met him and Neeraj Kumar stabbed with a knife in the abdomen of Surat Singh Chauhan. Surat Singh Chauhan fell down on the road and accused Neeraj Kumar along with his associates ran away towards a lane. Hearing cries of the deceased, Mohan Singh Bist (P.W.1) from his shop and Jaswant Singh (P.W.2), who was sitting in the shop of Sri Bist, rushed towards the place of incident. Meanwhile, Bali ram (P.W.5) who followed Surat Singh Chauhan also reached towards the place of incident. Injured Surat Singh Chauhan was taken to the Hospital on a scooter by Mohan Singh Bist (P.W.1) with the assistance of Jaswant Singh (P.W.2). Bali Ram (P.W.5) also followed them. The injured was admitted in Doon Hospital on 01.02.1989 at about 7.35 P.M., where his injuries were recorded in injury report (Ext.A-3) by Dr. G.P. Singh (P.W.7). Looking into the condition of the patient, Doctors advised recording of dying declaration of the injured as such Chandra Singh, Additional Tehsildar (P.W.6) recorded dying declaration (Ext.A-2) on the very day i.e. 01.02.1989 at about 8.35 P.M. in the presence of Dr. S.K. Nautiyal (P.W.9), who certified that the patient is conscious and able to make statement. Bali Ram (P.W.5) lodged First Information Report (Ext.A-1) at Police Station Raipur, District Dehradun at about 10.30 P.M. on the same day. Three days after the incident on 4th February 1989 deceased succumbed to the injuries in the morning. As such the First Information Report, which was registered initially as Crime No. 13 of 1989 relating to offence punishable under Section 307 I.P.C. against accused Neeraj Kumar was converted to one punishable under Section 302 I.P.C. The crime was investigated initially by J.P. Bargoti (P.W.12). After death of Surat Singh Chauhan his dead body was taken into possession by the Police on 04.02.1989 and inquest report (Ext.A-5) was prepared at 11.45 A.M.. Police further got prepared police form no. 13 (Ext.A-13), sketch of the dead body (ext.A-14), sample seal (Ext.A-15) and other necessary papers and sent the dead body of the deceased for postmortem examination. Postmortem examination was conducted on that very day i.e. 04.02.1989 at about 3.30 P.M. by Dr. D.P. Bahuguna (P.W.10), who prepare autopsy report (Ext.A-4) and opined that cause of death was shock and hemorrhage as a result of ante mortem injury. J.P. Bargoti (P.W.12), meanwhile interrogated the witnesses, arrested the accused Neeraj Kumar, recovered knife used in crime and after spot inspection prepared the site plans Ext.A- 7, relating to place of incident and Ext.A-8, relating to the place of recovery of knife at the pointing out of the accused/ appellant Neeraj Kumar. After transfer of Investigating Officer further investigation was taken by Ravindra Kumar Tomar (P.W.14), who after completion of investigation submitted the charge sheet (Ext.A-10) against accused / appellant Neeraj Kumar and his two associates, namely, Roni George and Rajesh @ Babu for their trial relating to offences punishable under Sections 302/34/120B I.P.C.. (4) The Magistrate on receipt of the charge sheet after giving necessary copies to the accused as required under Section 207 of Cr.P.C., appears to have committed the case to the court of Sessions for trail. Learned Additional Sessions Judge on 30.11.1989, after hearing the parties framed charge of offences punishable under Sections 120-B and 302 of I.P.C. against all the three accused. A separate charge was framed against accused / appellant Neeraj Kumar @ Lale @ Nate, relating to offence punishable under Section 302 I.P.C. All the three accused pleaded not guilty of the charge framed against them and claimed to be tried. On this prosecution got examined P.W. 1 Mohan Singh Bist, the chemist from whose shop deceased was returning, P.W.2 Jaswant Singh, P.W.3 Rajesh, minor son of the deceased, P.W.4 Jaggo Devi, widow of deceased, P.W.5 Bali Ram, complainant and eyewitness (nephew of the deceased), P.W. 6 Chandra Singh, additional Tehsildar, who recorded the dying declaration, P.W.7 Dr. G.P. Singh, who medically examined the injuries of deceased at the time of admitting him in the hospital, P.W. 8 Constable Rajendra Prasad, who took the dead body in sealed condition for postmortem examination, P.W.9 Dr. S.K. Nautiyal, who certified that the deceased was in a fit condition to make the dying declaration, P.W.10 Dr. D.P. Bahuguna, who conducted the post mortem examination, P.W.11 Sub Inspector Bhopal Singh, who prepared the inquest report of the dead body of the deceased, P.W.12 J.P. Bargoti, who initially investigated the crime, P.W.13 Constable Sukhbir Singh in whose presence knife used in the crime was recovered at the pointing out of the accused and P.W.14 Ravindra Kumar Tomar, who concluded the investigation. The oral and documentary evidence was put to the accused under Section 313 Cr.P.C. in reply to which they alleged the same to be false. In defence D.W.1 Abdul Rajjak, D.W.2 Satish Verma and D.W.3 Suresh Chandra Gupta, were got examined. After hearing the parties the trial court found that the prosecution has not been successful in proving the charge against accused Roni George and Rajesh @ Babu and acquitted them. However, the trail court found that charge of offence punishable under Section 302 I.P.C. has been proved as against accused Neeraj Kuamr @ Lale @ Nate. After hearing him on sentence he was sentenced to imprisonment for life. Aggrieved by said judgment and order dated 13.08.1991, passed in Sessions Trial No. 75 of 1989, by learned II Additional Sessions Judge, Dehradun, this appeal was filed before Allahabad High Court by convict on 19.08.1991, which was admitted there on 20.08.1991. The appeal is received by this Court by transfer under Section 35 of U.P. Reorganisation Act, 2000, for its disposal. (5) Before further discussions it is pertinent to mention here the injury mentioned in medical injury report (Ext.A-3), prepared by Dr. G.P. Singh (P.W.7) on 01.02.1989 at the time Surat Singh Chauhan (deceased) was admitted in the emergency ward of Doon Hospital. The same is being reproduced below:- “Incised wound 6cm X 2 cm X peritoneum deep omentum coming out on left side abdomen 15cm away from G.P. Stesurem bone. The general condition of the patient was found very low. Patient conscious. His pulse feeble and not recordable. B.P. not recordable.” The Medical Officer who prepared the injury report (Ext.A- 3) opined that the injury was caused by sharp edged weapon. X-ray was advised. (6) It appears that after Surat Singh Chauhan was admitted in Doon Hospital, Dehradun, he underwent surgery (as also apparent from stitched wounds) and thereafter he died on 04.02.1989. On postmortem examination, on 04.02.1989 at about 3.30 P.M., D.P. Bahuguna (P.W.10), who prepared the autopsy report (Ext.A-A-4) recorded following ante mortem injuries:- (i) Stitched wound 17 cm long on the left para umbilical region 3cm away from the umblicous having 12 stitches. Stomach deep. (ii) Incised would 5cm long on the left side abdomen lower part x cavity deep 6cm away and lower to the injury no. 1 with rubber sheeth coming out from the wound. (iii) Stitched wound 5 cm long on the left abdomen. Middle part 7cm away from the injury no.1. In the opinion of the Doctor cause of death was shock and hemorrhage as a result of ante mortem injury in the stomach. (7) On the day Surat Singh Chauhan (deceased) hospitalized, Chandra Singh (P.W.6) Additional Tehsildar, Dehradun, recorded dying declaration (Ext.A-2) in the presence of Dr. S.K. Nautiyal (P.W.9), who certified that the patient was in a fit condition to make the statement. We feel it just and proper to reproduce the dying declaration made by the deceased on 01.02.1989 at 8.35 P.M. and recorded in Ext.A-2, which is being reproduced below:- “c;ku fd;k fd esjk v/kskbZokyk esa edku gS mlds cxy es dqN Qkyrq tehu gS ml Qkyrq tehu ij gekjs fj”rsnkj cfyjke] eksj flg us cqfu;kn Mkyh Fkh uhjt ukedk ,d O;fDr dk dguk gS fd ;g tehu mlus [kjhn dh gS geus dgk fd vkius ;g tehu [kjhn dh gS rks dkxt ys vkuk vkSj rqEgkjh gksxh rks rqe gh j[k ysukA vkt “kke djhc 7 cts eSa ;e0;l0 fc’V dh nqdku esa [kMk Fkk fd ogkW ij uhjt vk;k vkSj mlus eq> ij pkdw ekj fn;kA uhjt dk vkSj vf/kd fMVsy eq>s ekywe ugh gS eS mls ns[kdj ifgpku ldrk gWWWw esjk Hkrhtk RkFkk esjh vkSjr Hkh mls igpku ldrh gSA ;g uhjt losZ pkSd dh rjQ jgrk gSA” From the statement of Dr. G.P. Singh (P.W.7), it is clear that the patient (Surat Singh Chauhan) was conscious when he was admitted in the Hospital on 01.02.1989 and from the statement of Dr. S.K. Nautiyal (P.W.9) it is proved that at the time of making statement at 8.35 P.M. also he (Surat Singh Chauhan) was in a fit condition to make dying declaration. On that very day Chandra Singh (P.W.6), Additional Tehsildar has proved the dying declaration recorded by him quoted above. The deceased has not named anyone except Neeraj Kumar (accused / appellant). P.W.4 Jaggo Devi, wife of the deceased has proved on the record that at about 12.30 P.M. before the incident in the evening, there had been quarrel between deceased and Neeraj Kumar and Neeraj Kumar (accused / appellant) gave a threat to the deceased that he will see him in the evening. This quarrel had taken place at the house of the deceased, as such the statement of P.W.4 Jaggo Devi to that extent is natural and trustworthy. As such apart from the dying declaration the motive is also proved on the record. P.W.3 Rajesh, minor son of the deceased has also corroborated the prosecution story to the extent that on the day of incident his father (deceased) had headache and he was sent to bring medicine from the shop of Mohan Singh Bist, where he went. He has further stated that during day time he (Neeraj Kumar) had quarreled with his father. P.W.1 Mohan Singh Bist from whose shop the medicine was purchased and P.W.2 Jaswant Singh, who was sitting in the shop of the Mohan Singh Bist though declared hostile but they have supported the prosecution story that on 01.02.1989 at about 7 P.M. after Surat Singh Chauhan (deceased) left the shop they heard shrieks and rushed to the spot and took the injured on the scooter to hospital. However, these two witnesses have not supported the prosecution story to the extent that they had seen accused / appellant Neeraj Kumar committing the murder. (8) P.W.5 Bali Ram, complainant is an eyewitness, who has narrated the prosecution story. According to this witness on 1st February 1989 at about 7 P.M., the incident took place. The witness has further stated that before the incident, at about 6 P.M., when deceased Surat Singh Chauhan sent his son Raju to bring medicine from shop of Sri Bist, on his return the boy told that Neeraj Kumar had asked him to tell his father (Surat Singh Chauhan) that Sri Bist was calling him (deceased). On this, being suspicious Sri Surat Singh Chauhan sent Bali Ram to see if Bist was actually calling him. The witness has further stated that when he did not see Neeraj Kumar he came back. Thereafter, Sri Chauhan went from house. P.W.5 Bali Ram says he followed him and saw that Sri Chauhan was talking to Sri Bist on his shop. Whereafter accused / appellant Neeraj came and asked Surat Singh Chauhan that he had to talk to him. On this, Surat Singh Chauhan started going with Neeraj. After walking some distance suddenly accused appellant Neeraj gave a knife blow on the person of Surat Singh Chauhan. The witness has further stated that he saw the incident in the light from electric pole. P.W.5 Bali Ram further stated that accused along with his two associates ran towards a lane. Thereafter he as stated that Bistji took Sri Chauhan on his scooter to the Hospital. The statement of this witness read with dying declaration made by the deceased and the medical report mentioned above clearly proves on record charge against the accused / appellant Neeraj Kumar that he committed murder of Surat Singh Chauhan. (9) We have gone through the statements of D.W.1 Abdul Rajjak, D.W.2 Satish Verma and D.W.3 Suresh Chandra Gupta and we are of the view that merely for the reason that the First Information Report is not immediately sent to the Magistrate or time of admission in the bed head ticket is slightly different to the one mentioned by the witnesses does not create any reasonable doubt in the prosecution story. Minor lapses on the part of Investigating Officer are not sufficient to discard eye witness account, dying declaration and medical reports. In State of W.B. Vs. Mir Mohammad Omar and others (2000) 8 Supreme Court Cases 382, the apex court has observed:- “Castigation of investigation unfortunately seems to be a regular practice when the trial courts acquit the accused in criminal cases. In our perception it is almost impossible to come across a single case wherein the investigation was conducted completely flawless or absolutely foolproof. The function of the criminal courts should not be wasted in picking out the lapses in investigation and by expressing unsavory criticism against investigating officers.” (10) On behalf of the accused / appellant it is argued that P.W.5 Bali Ram is a close relative of the deceased and as such his testimony cannot be relied upon. It is true that Bali Ram is nephew of the deceased but merely for that reason the prosecution story cannot be disbelieved as the statement of this witness gets full corroboration not only from the dying declaration but also from the medical evidence. Even P.W.1 Mohan Singh Bist and P.W.2 Jaswant Singh also corroborated the prosecution story to the extent that incident had taken place on the date and time suggested by the production. Only for the reason that they have not named Neeraj Kumar it cannot be said that the testimony of P.W.5 Bali Ram who saw Neeraj Kumar committing murder, should be disbelieved. (11) Next argument advanced on behalf of the accused / appellant is that the recovery of knife proved by P.W.12 J.P. Bargoti, who prepared memorandum (Ext.A-6) does not help the prosecution as it is not proved that the weapon is connected with the crime. It is true that ‘chemical examiners report’ could not disclose that the blood found on the knife was human blood as the blood was disintegrated but in our opinion that does not help the defence. Even if evidence relating to recovery of knife is discarded the oral testimony of eyewitness read with dying declaration of the deceased further read with medical report still proves charge of offence punishable under Section 302 I.P.C. against the accused / appellant Neeraj Kumar beyond reasonable doubt. (12) It is also contended on behalf of the accused / appellant that the Medical Officer has certified the condition of patient only below the statement recorded by P.W.6 Chandra Singh and not at the beginning of the statement. This, in our opinion does not create any doubt as to the truthfulness of the dying declaration. It is pertinent to mention here that before the dying declaration was recorded the injuries were recorded by P.W. 7 Dr. G.P. Singh in Ext.A- 3, and the patient was found conscious. In that light the endorsement of P.W.9 Dr. S.K. Nautiyal at the end of the dying declaration is sufficient to prove that through out the deceased was in a fit condition to make the statement, during the period it was recorded. (13) It is further submitted on behalf of the accused / appellant that deceased was a literate person as such obtaining his thumb impression creates doubt as to the correctness of the dying declaration. We are unable to accept this contention of learned counsel for the accused / appellant for the reason that a patient who has a serious injury in his abdomen must be lying on the bed and it is natural that he cannot sit to sign the paper. P.W. 6 Chandra Singh has clarified this in his cross examination that he got the thumb impression as the patient was lying and was not in a position to rise. (14) Lastly it is submitted on behalf of the accused / appellant that presence of Bali Ram is not disclosed by the deceased in his dying declaration as such it cannot be said that Bali Ram (P.W.5) witnessed the accused / appellant Neeraj Kumar stabbing the deceased. We have already discussed above that deceased left all alone towards the shop of Mohan Singh Bist and was followed by P.W. 5 Bali Ram and as such it is nowhere come on the record that deceased was aware of the fact that he is being followed by Bali Ram. Mere non-mention of name of Bali Ram as witness in the dying declaration does not create any reasonable doubt in the statement of P.W. 5 Bali Ram. (15) For the reasons as discussed above, we do not find any merit in this appeal. The appeal is liable to be dismissed. The appeal is dismissed. The conviction and sentence awarded by the trial court against accused / appellant Neeraj Kumar @ Late @ Nate, under Section 302 of I.P.C., is affirmed. He is on bail. His bail is cancelled. Registry is directed to sent the lower court record back to the trial court to make the accused / appellant Neeraj Kumar alias Lale alias Nate serve out the sentence awarded against him. (Dharam Veer, J.) (Prafulla C. Pant, J.) 31.03.2008 NS