Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 10 of 2002 mt. Bachni Devi and another S ...…………. Appellants versus State of Uttarakhand ...…………. Respondent Mr. L.K. Tiwari, Advocate with Mr. A.M. Saklani, Advocate, for the appellants. Mr. Amit Bhatt, Addl. Govt. Advocate for the State. JUDGMENT Coram : Hon’ble Barin Ghosh, C. J. Hon’ble U.C. Dhyani, J. Per: U.C. Dhyani, J. This appeal, preferred under Section 374 of the Code of Criminal Procedure, 1973, is directed against the judgment and order dated 20.12.2001, passed by Sessions Judge, Tehri Garhwal, in Sessions Trial No. 49 of 1996 whereby said court has convicted accused / appellants Bachni Devi and Beer Singh under Section 302 read with Section 34 of the Indian Penal Code, 1860, and each one of them has been sentenced to imprisonment for life and also directed to pay a fine of ` 1,000/-. The trial court also directed that in default of payment of fine the 2 convicts shall further undergo simple imprisonment for a period of one month. 2. We have heard learned counsel for the appellants & learned Addl. Government Advocate for the State and perused the lower court record. 3. Prosecution story, in brief, is that on 18.09.1995, P.W.1 Rukma Devi (informant) gave a written report (Ext. Ka-1) to Patti Patwari Kothi, Revenue Police Station Kothi, Tehri Garhwal stating that on 17.09.1995, at about 05:00 A.M., her husband Chandar Singh (deceased) went to irrigate the fields situated at Dalim Sera Name Tok. It is alleged in said report that her brother-in-law (jeth) Beer Singh, sister- in-law (jethani) Bachni Devi, and their children namely, Bharat Singh and Leela were also there in said Tok. When the husband of the informant did not return home on that day (17.09.1995) by 07.00 P.M., a search was made, and she along with one Jagvir Singh and her another brother-in-law (jeth) Bakhtawar Singh proceeded for Dalim Sera Tok. On reaching there she saw that her husband was lying dead in a water channel. On seeing this, they all came back to their village, and reported the matter verbally to the village Pradhan. The informant expressed her apprehension that the above named persons have killed her husband. She got the complaint scribed through the village Pradhan and then 3 the same was sent to the revenue police. On the basis of said FIR, chick report (Ext. Ka-4) was lodged by the police and crime no. 04 of 1995 was registered against accused Beer Singh, Bachni Devi, Km. Leela and Bharat Singh in respect of offences punishable under Section 302 and 201 of I.P.C. Investigation of the case was taken up by P.W.8 Patwari Sudama Ram Bijalwan. After taking the dead body into his possession, he prepared inquest report (Ext. Ka-3) and sent the dead body in a sealed cover for postmortem examination. P.W.3 Dr. M.K. Singh, Emergency Medical Officer, conducted the postmortem examination on the dead body of Chandar Singh on 19.09.1995 at about 12:10 P.M., and prepared autopsy report (Ext. Ka-2). He recorded five ante mortem injuries and opined that deceased had died of coma as a result of ante mortem head injuries. The Investigating Officer inspected the spot, interrogated the witnesses and other necessary papers viz., Ext. Ka-5, Ext. Ka-6, Ext. Ka-7, Ext. Ka-8 and Ext. Ka-9. He also prepared site plan (Ext. Ka-10) and recovery memo (Ext. Ka-12) of the articles of the deceased recovered from the site. After completion of investigation, the Investigating Officer submitted charge sheet (Ext. Ka-11) against accused Bachni Devi, Beer Singh and Bharat Singh, for their trial in respect of offences punishable under Section 302, 201 of I.P.C. Accused Bharat Singh claimed himself to be a minor and as such his case has been sent to Juvenile Justice Board for trial. 4 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., committed the case to the court of Sessions for trial. On 17.03.1997, learned Sessions Judge, Tehri after hearing the parties, framed charge of offences punishable under Section 302 read with Section 34 and 201 of I.P.C., against both the accused to which they pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W.1 Rukmani Devi (informant and widow of the deceased), P.W.2 Ghanshyam (eyewitness); P.W.3 Dr. M.K. Singh (who conducted the postmortem examination); P.W.4 Bhagwan Singh (eyewitness) P.W.5 Bhagwan Dass (another eyewitness); P.W.6 Paramdeep (eyewitness); P.W.7 Bhakta Darshan Singh (Village Pradhan) and P.W.8 Patwari Sudama Ram Bijalwan (who investigated the crime). The oral and documentary evidence was put to the accused under Section 313 of Cr.P.C., in reply to which they alleged the evidence adduced against them as false. They pleaded that they have been falsely implicated in the crime. After hearing the parties, the trial court found that prosecution has successfully proved charge of offence punishable under Section 302 read with Section 34 of I.P.C. against both the accused and convicted them accordingly. However, the trial court acquitted both the accused from the charge of offence punishable under 5 Section 201 of I.P.C. as no offence is said to have been made out by the prosecution against them on that count. After hearing on sentence, the convicts Bachni Devi and Beer Singh were sentenced to imprisonment for life under Section 302 read with Section 34 of I.P.C. Fine was also imposed. Aggrieved by said judgment and order dated 20.12.2001, this appeal has been preferred by the convicts. 5. P.W.1 Rukmani Devi (Rukma Devi), widow of the deceased, has lodged a complaint (Ext. Ka-1) and on the basis of the same the FIR was lodged. This witness does not claim to have seen the occurrence. 6. P.W.2 Ghanshyam Singh is the eyewitness. On 17.09.1995, at 05:30 P.M. he saw accused persons Beer Singh, Bharat Singh and Bachni Devi with the deceased. He had gone to the place of occurrence for easing himself. When he got up he saw the accused with the deceased. The accused persons pushed Chandar Singh. He made a cry but people did not listen due to running of water channel nearby. This witness saw the accused persons forcing / dragging / pushing Chandar Singh into the water channel. After having seen the occurrence he went to the house of the deceased. The family members of Chandar Singh were not there. They had gone to search him. Later on he went to the place of occurrence and showed the place where accused persons had committed the crime. In his 6 cross-examination this witness has said that he had gone to water mill and the shops of Kundan Singh and Chandan Singh are also there. He has said in the cross- examination that the distance between the place where he was standing and the place of occurrence was nearly 200 yards. The maarpeet between the accused persons and the deceased was going on which he saw from such a distance. All the accused were armed with lathi. A scuffle took place between them. All of them were pulling different parts of the body of the deceased in different directions. The said water channel where they pushed the deceased was very near to that place. Chandar Singh cried aloud for sometime but nobody came to his rescue. His statement was taken by the Patwari on 18.09.1995, at 08:00 A.M. whereby he gave a description of the entire occurrence to the Patwari of the area. This witness had given the information to the complainant that the accused persons have pushed the deceased in the water channel whereupon he died. He also gave this information to Bhakta Darshan Singh and Jagveer Singh. Although there is a suggestion on behalf of the appellants that this witness has given the evidence on account of enmity but the same is not proved on the basis of evidence on record. Litigation between the parties is one thing, enmity is another. At the most, a greater precaution is required to be taken in appreciating the evidence of such a witnesses. The testimony of such a witness may be relied upon. 7 7. P.W.3 Dr. M.K. Singh, Emergency Medical Officer, Combined Hospital, Tehri had conducted the postmortem examination on the dead body of the deceased Chandar Singh on 19.09.1995 at 12:10 P.M. He found the following ante mortem injuries on the dead body of the deceased: i) Abraded contusion on posterior part of right parietal part of scalp behind right ear 2.5 cm x 1 cm, bluish in colour. ii) Contusion on top of scalp 2 cm x 1 cm, bluish in colour. iii) Abraded contusion on left parietal region of skull, 4 cm above the left ear 3 cm x 1.5 cm, bluish in colour. iv) Multiple abrasions over lower posterior aspect of lower left wrist one third of left forearm, dorsal aspect of palm, brown in colour. v) Abrasion on upper part of left leg, oblique, 1 cm x 5 cm, reddish brown in colour. The Medical Officer opined that the cause of death is coma as a result of ante mortem head injuries. This witness has proved autopsy report (Ext. Ka-2). Many a questions were put to him in the cross- examination, but nothing concrete has come in his cross-examination so as to help the appellant. The only fact which may help the appellants is the opinion of the Doctor that all the injuries except injury no. (iii) were simple in nature. That aspect will be discussed only 8 when we deal with the quantum of sentence, if any, to be given to the accused appellants. 8. P.W.4 Bhagwan Singh has said that when he was returning from village Pifalti he came to know in village Manwadi gaad that Chandar Singh has been killed. He did not know as to who has killed him. The villagers Ghanshyam Singh and others were saying that Chandar Singh has been murdered by Bachni Devi. Beer Singh. The deceased was real brother of the accused Beer Singh. 9. P.W.5 Bhagwan Das has stated that he was coming after doing day long labour. While taking tea, he saw the quarrel taking place between Bachni Devi and deceased Chandar Singh. A scuffle took place between them. This witness reported the matter to Beer Singh, husband of Bachni Devi. His entire evidence laid emphasis on the aggressive postures of Bachni Devi. This witness remained there for 1-1½ minutes and thereafter left for his house. He made no allegations against other accused persons. 10. This witness withstood the test of scrutiny by learned counsel for the accused / appellant. In his cross-examination all his evidence is confined to the role of Bachni Devi only, in as much as he saw the scuffle between Chandar Singh and Bachni Devi. This 9 event was a precursor to the actual incident of murder which followed thereafter. 11. P.W.6 Paramdeep who was a student of Class X when the occurrence took place, has said that on 17.09.1995 at 04:30 P.M., Rama Devi and Rajni Devi were near the source of water. Witness Bhagwan Dass was also there. Verbal dual between Bachni Devi and Chandar Singh took place. They were quarrelling and fighting with each other. He had recognized both of them from a distance of 100 meters. Thereafter this witness left for his house. Rama Devi advised this witness Paramdeep to inform Beer Singh and intervene in the matter. In the cross-examination this witness has stated that he along with Bhagwan Dass were going together. Rama Devi and Rajni Devi were standing there before that. They also witnessed the scuffle which took place between the deceased and accused Bachni Devi. 12. P.W.7 Bhakta Darshan Singh has stated that the accused Beer Singh and deceased Chandar Singh were real brothers. Bhakta Darshan Singh was village Pradhan on the fateful day. He was sitting at a shop at about 04:45 P.M. alongwith some labourers. When he left the place accused Beer Singh and his son Bharat Singh met him enroute to the crossing. Beer Singh had shown the blood stained palm to this witness saying that Chandar Singh assaulted Bachni Devi with a sickle. 10 This witness has also stated that Beer Singh told him that they will not spare Chandar Singh and they will kill him. At about 08:00 P.M. Smt. Rukmani Devi (Rukma Devi) complainant, Bhaktawar Singh and Jagveer Singh came to the residence of this witness and sought his help in searching the deceased. P.W.7 Bhakta Darshan Singh advised them to go to the place where he had gone to irrigate his fields. As advised, they went to that place. Bhakta Darshan Singh went to the house of Bachni Devi and enquired about the injury on his palm. This witness also enquired about Chandar Singh whereupon he was informed by Rukmi Devi that Chandar Singh was lying dead in the water channel. All of them went to the place of occurrence and the matter was reported to the Patwari of the area. No doubt, some dispute was going on between Chandar Singh and Beer Singh over the matter of irrigating the fields, but that does not permit the accused persons or for that matter anybody to take law in their own hands. 13. According to this witness P.W.7 Bhakta Darshan Singh although the report was given to the Patwari in the night, but the proceedings started in the next morning. The FIR (Ext. Ka-1) was written on the dictation given by the complainant Rukma Devi. This witness did not put his signatures on the complaint. This witness was confronted with many a statements recorded by the Investigating Officer and attributed to him, but since they are not material on any point, 11 therefore, they do not help the accused / appellants in any way. 14. P.W.8 Sudama Ram Bijalwan, Patwari, Chaudah Bigha, Muni-Ki-Reti was posted as Patwari of the area on 18.09.1995. Village Pradhan Bhakta Darshan Singh brought written report (Ext. Ka-1) to him on the basis of which he lodged chik FIR (Ext. Ka- 4). An entry in the General Diary was made. The Patwari (Investigating Officer) has proved the copy of the entries in the General Diary as Ext. Ka-5, autopsy report (Ext. Ka-3). The Patwari has also proved certain other papers marked as Ext. Ka-6 to Ext. Ka-9. He also got the statement under Section 164 of Cr.P.C. of witness Ghanshyam recorded by the concerned Magistrate. He also inspected the place of occurrence and proved site plan (Ext. Ka-10). The accused were arrested and finally a charge sheet (Ext. Ka-11) was submitted against the accused / appellants. The recovery memo of the sickle (Ext. Ka-12) was also prepared. 15. It has been stated on behalf of the accused / appellants that there is delay in lodging the FIR. Learned A.G.A. has submitted that the investigation of a criminal case by revenue officials is practically taken on a different footing. Although, the FIR is 22 hours late, but the delay in lodging the FIR has been satisfactorily explained. We are inclined to agree with 12 the submission of learned A.G.A., in as much as the delay has not caused any concoction in the story. In other words, the informant had an opportunity to make concoction during this period, but the same has not been done. What concoction did they make in 24 hours? Two witnesses came out with a simple story of maarpeet with hands. The third witness said that the lathi was not used. The victim was pushed into the water channel. The dead body was found. How do the accused get out of it? No one has said that the story was embellished. At the very outset it does not appear that the prosecution story has been developed despite loss of several hours. The prosecution story would not have been believed had the prosecution or its witnesses (informant etc.) embellished the story in such a way that a prudent person might have though that this development in the prosecution story is the outcome of afterthought on account of delay. Simple story seen, simple story scribed, simple story investigated and simple story narrated by the prosecution witnesses before the court. In the opinion of this court there appears to be no embellishment on account of the delay in the FIR. The delay has sufficiently been explained on behalf of the prosecution. 16. Learned counsel for the accused / appellants has submitted that the accused persons have been named only on the basis of suspicion. It is also submitted that informant Rukma Devi had apprehension 13 that the accused persons might have committed the crime. In reply thereto learned A.G.A. has submitted that informant Rukma Devi is the wife of the deceased. She is not a witness of the incident. How could she write in the FIR that who has killed her husband? She was not present at the time the occurrence took place. There appears to be sense in the arguments put forward by learned A.G.A. Had the complaint / FIR been lodged by a person who had seen the murder of Chandar Singh he could have named the accused persons in the FIR, but this woman could only suspect the accused persons and she has done that. It was only an expression of apprehension in the complaint. According to the FIR her husband Chandar Singh had gone to water the fields. He did not come back. His dead body is in the water channel. Therefore, we are not inclined to agree with the submissions of learned counsel for the accused / appellants. 17. Learned counsel for the accused / appellants has also submitted that the presence of P.W.2 Ghanshyam on the spot is doubtful. We have gone through the examination-in-chief and the entire cross- examination of this witness. He appears to be a natural witness in as much as he had gone to water mill first and while coming back to his residence, eased himself, while doing so he saw that the accused persons were dragging Chandar Singh and finally pushed him in the water channel. He has categorically stated that he saw 14 accused persons dragging Chandar Singh into the water channel. There is no infirmity in the testimony of this witness P.W.2 Ghanshyam. His testimony was very natural when he said that his voice could not be heard in the noise of water. This witness has no enmity with the accused persons. He is not interested in the informant or in the family members of the deceased. Why should he tell a lie? He seems to be a natural and disinterested person. His testimony has rightly been believed by the learned trial court. This witness was subjected to lengthy cross-examination on behalf of the accused persons but nothing has come out in his testimony so as to help the accused. 18. Learned counsel for the accused / appellants has tried to create doubt on the testimony of P.W.2 Ghanshyam by pointing out certain facts at page no. 8 of his cross examination. This witness has admitted that he was sentenced to pay a fine of ` 3,000/- in a case of maarpeet against which he did not prefer any appeal. There was a case against him in which accused Beer Singh was the witness. The earlier case related to the maarpeet with accused Beer Singh. He also filed a suit against accused Beer Singh which is pending in the court of S.D.M., Tehri. These facts are not going to help the accused in any way. The circumstances at the most require close scrutiny of the testimony of this witness. His testimony was scrutinized by the learned trial court by closed quarters and we do not see any 15 infirmity in the finding of learned trial court in as much as this witness has said in his cross-examination that both Beer Singh (accused) and Chandar Singh (deceased) are his brothers. The accused Beer Singh is also the real brother of deceased Chandar Singh. It is an irony of the situation that the real brothers are fighting with each other. In a situation like the one we have currently in hand if another brother like this witness has given evidence against his brother and in favour of yet his another brother, there seems to be no element of surprise in it. 19. Otherwise also, this witness P.W.2 Ghanshyam was 200 yards away from the place where the incident took place. Everything was visible to him. It was the month of September. Time was about 05:30 P.M. This witness could see it that the accused persons pushed Chandar Singh into a water channel. Before that, scuffle took place between them. They were fighting with the fists and feet. That is the reason his testimony is more acceptable. P.W.2 Ghanshyam has not said that the son was fighting. There is no evidence that the son was also fighting. Learned counsel for the accused / appellants had informed that since Bharat Singh was a juvenile, he was tried by the Juvenile Justice Board and got an acquittal. 20. P.W.5 Bhagwan Das is another eyewitness who has supported the event which was a precursor to this 16 incident. P.W.6 Paramdeep has supported the evidence of P.W.5 Bhagwan Das. The testimony of these two witnesses is highly relevant in the context of this case. 21. It was next argued on behalf of the accused / appellants that Rama Devi was not produced as a witness. It was not necessary for the prosecution to have produced Rama Devi or Rajni, in as much as two witnesses P.W.5 Bhagwan Das and P.W.6 Paramdeep have been produced on behalf of the prosecution to show as to what had happened before this incident took place. No number of witnesses has been prescribed in the Evidence Act. It is the quality of the evidence which matters and not the quantity of the evidence. If there is no discrepancy in the eyewitness account of P.W.2 Ghanshyam or any other witness, this is not material discrepancy. Law is settled on the point that only the material contradictions or material inconsistencies influence the prosecution story, not otherwise. 22. Learned trial judge has definitely taken note of every aspect of the case. We are unable to believe that the accused persons were not there when the scuffle took place or when Chandar Singh was pushed into the water channel. It is also not the case of the accused / appellants that the deceased had provoked the scuffle. The purpose of cross-examination is to un-reveal the facts. There was no suggestion on behalf of the 17 accused that there is no water channel. It is not a case of accident either. Had it been so, it was the duty of the accused persons to have brought that aspect of the case (if any) on record. The accused should have accepted from the very beginning that scuffle took place and the death of Chandar Singh occurred due to an accident. The accused persons have not done that. It is not their case either. There is no single whisper about the fact that there was no water channel and the dead body was not found in nalla. Omnibus suggestion will not do any good to the accused. 23. A combined reading of the testimony of P.W.2 Ghanshyam, P.W.5 Bhagwan Das, P.W.6 Paramdeep and P.W.7 Bhakta Darshan supported by the FIR lodged by P.W.1 Rukmani Devi (Rukma Devi) and medical evidence adduced by Dr. M.K. Singh (P.W.3) has proved the prosecution story against these accused persons beyond reasonable doubt. It is proved that on 17.09.1995, at 05:30 P.M. accused persons Bachni Devi and Beer Singh have thrown the person of Chandar Singh into the water channel which has resulted into Chandar Singh’s death. We agree with the findings arrived at by the learned trial court, who has also cited certain rulings in the body of its judgment. These rulings appear to be fully applicable to the facts of