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2004 DIGILAW 239 (UTT)

Puran Singh v. State of Uttaranchal

2004-09-25

IRSHAD HUSSAIN, J.C.S.RAWAT

body2004
JUDGMENT P.C. : Hon'ble Mr. Justice Irshad Hussain, J.-Appellant Puran Singh has been convicted and sentenced to imprisonment for life under Section 302 I.P.C. and R.I for two years under Section 394 I.P.C., per judgment and order dated 18-9-1990 passed by the then II Additional Sessions Judge, Nainital in sessions trial No. 316 of 1988. 2. Briefly stated the prosecution case was that on 19-8-1988 at about 5.30 p.m. appellant entered inside the house of informant Chatur Singh (P.W3) of village Bakarikhoar P.O. Bisht Estate, District Nainital to commit theft. At that time Km. Chanoli Devi deceased resident of village Chopara Dangarh was inside the house of the informant. She had been staying there for the last few days. In order to commit the theft appellant picked up a box from inside the house and wanted to move away from there. He was intercepted by Km. Chanoli Devi, whereupon appellant picked up a sickle kept in the window of the room and dealt its blows on her neck. The blows of sickle received by Km. Chanoli Devi proved fatal as she died instantaneously. At the time of the incident Bahadur Singh (P.W5) the son of the informant was present there at the scene of the accident and he witnessed the incident and raised an alarm. Informant Chatur Singh was working in the field adjoining to his house and he along with others ran toward~ his house and on reaching there saw the appellant moving away with stolen box and blood-stained sickle in one of his hand. The appellant however could not be arrested as he made his escape possible after throwing away the box near the house. Informant thereafter got prepared the written report (Ext.Ka.1) and filed it at Police Out Post Jyolikot of District Nainital where the check F.I.R. (Ext. Ka.6) was prepared and case was registered against the appellant. Investigation of the case was taken up by S.I. A.K. Pandey (P.W7) who held inquest on the dead body and sent it for post mortem which was performed by Dr. H.C. Bhatt (C.W.1) at 11 a.m. on 21.8.19R8. 3. The box picked up by the appellant from the house was seized from near the house vide memo (Ext.Ka.4). The I.O. also attached blood stained and plain earth vide memo, Ext.Ka.3 from inside the room, where the dead body of Km. Chanoli Devi was found lying with injuries. H.C. Bhatt (C.W.1) at 11 a.m. on 21.8.19R8. 3. The box picked up by the appellant from the house was seized from near the house vide memo (Ext.Ka.4). The I.O. also attached blood stained and plain earth vide memo, Ext.Ka.3 from inside the room, where the dead body of Km. Chanoli Devi was found lying with injuries. The appellant was arrested on 20-8-1988 at 3.10 p.m. and on his disclosure sickle (Ext.1) the weapon of assault was recovered from the bushes at a distance of 5 or 6 paces from guava tree situate at a distance of about 200 meters on the hillock from the house of the informant. On completion of the investigation charge sheet (Ext. Ka.16) was submitted against the appellant on 7-9-1988. 4. The appellant did not admit the accusations of the prosecution and urged that he has been falsely implicated in the case. 5. During the trial in order to bring home guilt to the appellant prosecution examined 7 witnesses. P.W.1. Nain Ram claimed to have seen the appellant Puran Singh while moving towards the hill side with a sickle soon after the shouts and noises were heard from the house of Chatur Singh at about 5.30 p.m. on the day of the occurrence. On reaching inside the house he saw Km. Chanoli Devi lying dead with injuries. P.W2. Kishan Singh is a Panch witness of the inquest held on the dead body of Km. Chanoli Devi. P.W3. informant Chatur Singh supported the prosecution version as narrated above. P.W4. constable Rajbir Singh gave formal evidence of registration of the case on the basis of the written F.I.R. P.W5, Bahadur Singh eye witness of the occurrence is the son of the informant Chatur Singh. He was aged about 16 years at the time of the incident. He was near his house when he saw the appellant holding a box inside the house and at that time Smt. Chanoli Devi intervened and stopped the appellant from moving away with the box. The appellant then picked up a sickle from the window or the room and started giving its blows on the neck or Km. Chanoli Devi who sustained injuries and died on the spot. The witness raised alarm and ran to summon his father working in the field near the house. The appellant then picked up a sickle from the window or the room and started giving its blows on the neck or Km. Chanoli Devi who sustained injuries and died on the spot. The witness raised alarm and ran to summon his father working in the field near the house. The informant then came along with others as stated above and saw the appellant running away from there. P.W.6, constable Latoor Singh was the member of the police force deputed to keep watch on the dead body in the night as the inquest was to be held in the morning of 20-8-1988. He also give evidence that on 19-8-1988 at about 10 p.m. the box stolen from the house or the informant was seized by the Investigating Officer. P.W7, S.I. Arun Kumar Pandey, the Investigating Officer or the case proved various steps taken in regard to the investigation of the crime and proved relevant documents including the inquest report, connected documents, seizure memos etc. He also corroborated the prosecution case about the arrest of the appellant, recovery or box and also recovery or sickle (Ext.1) at the instance or the appellant on 2-8-1988 at about 5 p.m. 6. The Medical Officer Dr. H.C. Bhatt was examined as C.W 1. He held autopsy on the dead body of Km. Chanoli Devi at 11 a.m. on 21.8.1988 and prepared autopsy report, Ext.Ka.17. Following antemortem injuries were detected on the person of the victim :- (i) Incised wound of size 3 cm x 1cm x fascia deep on the front of the neck. 7 cm above left clavicle. . (ii) 'V' shaped incised wound on scalp, 5 cm behind the left ear. (iii) Incised wound 1cm x .5 cm x entire thickness of the lobule of the left ear. (iv) Semi-circular incised wound on occipit region of scalp 7 cm x 1 cm x bone deep, 5 cm behind the injury no.2. (v) Incised wound 8 cm x 1 cm x bone deep across the right ear cutting the right external car. (vi) 3 incised wounds, one upper, one middle and one lower. Each 20 cm x 1 cm x bone deep. extending from right side [ace just below the right car and upper portion or the neck. Hair of the head at its back arc soiled and matted. (vi) 3 incised wounds, one upper, one middle and one lower. Each 20 cm x 1 cm x bone deep. extending from right side [ace just below the right car and upper portion or the neck. Hair of the head at its back arc soiled and matted. (vii) Abrasion 10 cm x 7 cm on the outer side of the right leg at its lower end. (viii) Abrasion 7 cm x 5 cm on the outer side of the left leg at its lower end. 7. On internal examination temporal bone behind the left ear underlying the injury no.2 was found fractured. In the opinion of the Medical Officer death occurred about 36 to 48 hours before the autopsy and the death was the result of syncopy and shock due to excessive haemorrhage. The ante-mortem injuries were sufficient in the ordinary course of the nature to cause the death of the deceased. He also opined that the ante-mortem injuries were probably sustained at 5.30 p.m. on 19-8-1988 by sickle (Ext.1). 8. The learned Sessions Judge made appreciation of the evidence on record and accepted the prosecution story as true on the basis of the direct evidence of eye witness Bahadur Singh (P.W.5) and informant Chatur Singh (P.W.3) and thereby found the charges levelled against the appellant proved beyond doubt. The appellant was therefore convicted and sentenced as aforesaid. 9. We have heard the learned Amicus Curiae for the appellant and the learned A.G.A and have considered the evidence, the circumstances and the probabilities of the case. We have also gone through the judgment under appeal with the aid of the learned counsel. 10. It was not disputed that the death of Km. Chanoli Devi was homicidal. The place and time of the occurrence was also not challenged by the learned Amicus Curiae. He however argued that the evidence of sale eye witness Bahadur Singh (P.W.5) in the face of inconsistent medical evidence has wrongly been held to be wholly reliable by the learned Sessions Judge and that in the face of the facts of the case the evidence on record was not sufficient to connect the appellant with the crime. He however argued that the evidence of sale eye witness Bahadur Singh (P.W.5) in the face of inconsistent medical evidence has wrongly been held to be wholly reliable by the learned Sessions Judge and that in the face of the facts of the case the evidence on record was not sufficient to connect the appellant with the crime. On the other hand learned AG.A supported the judgment of the learned Sessions Judge by submitting that the evidence of eye witness Bahadur Singh stand amply supported by the evidence of informant Chatur Singh as well as the evidence of Nain Ram, both of whom have seen the appellant moving out from the house of incident while carrying with him blood-stained sickle. 11. It need to be mentioned at the out set that the learned Sessions Judge did not place reliance on the evidence of Nain Ram so far as the implication of the appellant in the commission of the crime is concerned and rightly so because this witness claimed to have reached near the house of the incident after the actual occurrence and saw the appellant only from his back while moving away on the hillock at a distance of about 250 meters. The appellant is admitted to have not turned his face towards this witness and there was thus no occasion for this witness to have fixed the identity of the assailant. 12. In regard to the statement of eye witness Bahadur Singh (P.W.5) it is significant that he being the son of the informant and residing with him in the house of the incident he was the most natural witness of the occurrence. When the occurrence took place he was out side his house and he affirmed that he saw Km. Chanoli Devi returning to the house after collecting fuel wood from the jungle. When she entered inside the house appellant Puran Singh wanted to come out of the room with a box in his hand. The appellant was then stopped by Km. Chanoli Devi so that the appellant may not escape with the stolen property. The appellant on being resisted from taking away the stolen property, picked up a sickle kept in the window of the room and dealt its blows on the neck of Km. Chanoli Devi. The appellant was then stopped by Km. Chanoli Devi so that the appellant may not escape with the stolen property. The appellant on being resisted from taking away the stolen property, picked up a sickle kept in the window of the room and dealt its blows on the neck of Km. Chanoli Devi. Learned Amicus Curiae submitted that since this witness claimed that he was near the guava tree outside the house he was not in a position to witness the incident and also to see tile manner of assault of the victim by the appellant. He also argued that in the site plan. Ext. Ka.9 the guava tree has not been shown and this aspect indicate that no guava tree was near the house of the informant and it appear that if the witness was in any case at the guava tree he must have been far away from the house and thereby not able to witness the incident or any sequence of the same. We see no merit in this argument because if the Investigating Officer has not shown the guava tree in the site plan it would not mean that the witness was not near the house as being able to witness the incident as narrated by him. The witness was cross-examined about the situation of the guava tree and he gave out that the guava tree was about 15 paces away from the house in the north. The occurrence took place during day time and the witness could have very well seen everything that happened inside the room of his house from the distance of about 15 paces and in a situation like this we arc not impressed by the argument that the occurrence was not seen by the witness and he was shown to be the witness of the incident on account of being the son of the informant. 13. The witness was also confronted with his earlier statement under section 161 of the Code of Criminal Procedure in order to impeach his credit. He denied that he gave statement to the I.O. that he and Km. Chanoli Devi returned together after collecting fuel wood from the jungle. The witness stated that he could not say as to how such a statement was recorded by the Investigating Officer. He denied that he gave statement to the I.O. that he and Km. Chanoli Devi returned together after collecting fuel wood from the jungle. The witness stated that he could not say as to how such a statement was recorded by the Investigating Officer. Even if such a statement was given by the witness the inconsistency is not sufficient to discard his evidence in totality. At any rate the earlier statement does not indicate that he was not present near the house when the occurrence took place. The witness also gave out to the I.O. that the appellant Puran Singh fled away with blood stained sickle in the hand after dropping the box stolen from the house at the scene of the incident itself. According to the prosecution case the box was thrown away by the appellant while running away at a short distance from the house in the jungle side and the same was recovered later on by the Investigating Officer. Even if it is so the above statement of the witness can not be taken to contradict his version about the assault because merely by saying that the appellant had run away throwing the box at the scene of the incident it would not mean that the box was left by the appellant at that very place where Km. Chanoli Devi was fatally assaulted. The contradiction on this count also can not be taken to assail the credibility of the witness. It is well settled that while appreciating the evidence of a witness, minor discrepancies on trivial matters without affecting the core of the prosecution case ought not to prompt the court to reject the evidence •in its entirety. If the general tenor of the evidence given by the witness and the trial court upon appreciation of evidence forms opinion about the credibility thereof, in the normal circumstances the appellate court would not be justified to review it once again without justifiable reasons (Munshi Prashad and others Vs. State of Bihar; 2001 Criminal Law Journal 4708). 14. It further need to be stressed that when an eye witness is examined at length discrepancies do occur even in the evidence of a truthful witness due to lapse of time and also on account of nervousness resulting from piercing cross-examination. State of Bihar; 2001 Criminal Law Journal 4708). 14. It further need to be stressed that when an eye witness is examined at length discrepancies do occur even in the evidence of a truthful witness due to lapse of time and also on account of nervousness resulting from piercing cross-examination. It is therefore well settled that discrepancies which do not go to the root of the matter and shake the basic version of the witness are not annexed with undue importance. More so when all important ‘probabilities factor' echoes in favour of the version narrated by the witness [Bharwada Bhogin Bhai Hirji Bhai Vs. State of Gujarat (1983) III S.C.C. 217]. 15. Having considered the evidence of eye witness Bahadur Singh (P.W3) in the above back drop also we are of the view that this witness gave truthful version of the incident and the learned trial court upon appreciation of the evidence was fully justified in placing reliance on his evidence regarding the incident and manner of the fatal assault by the appellant on Km. Chanoli Devi. 16. Learned Amicus Curiae then argued' that the medical evidence in the case does not corroborate the evidence of the eye witness because only one injury which was semi-circular incised wound could be attributed to sickle, the weapon of assault which has a semicircular blade. It is to be noted that the Medical Officer Dr. H.C. Bhatt (C.W.1) was shown the weapon of assault, sickle (Ext.1) and he testified that the ante-mortem injuries of Km. Chanoli Devi were probably sustained at 5.30 p.m. on 19-8-1988 by this sickle. He was not cross-examined to assail his opinion and this aspect of the matter rebut the submission made above. It also need to be stated that even semi-circular blade of sickle has some straight portion which may not necessarily cause semi circular incised wound and this appears to be the reason that incised wounds of other pattern were also found on the person of the victim. This apart, the medical evidence has only corroborative value as it prove that the injury could have been caused in the manner stated by the eye witness. This apart, the medical evidence has only corroborative value as it prove that the injury could have been caused in the manner stated by the eye witness. The use which the defence can make of medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged or death could not possibly have been caused in the manner as alleged by the prosecution and if it can do so, it discredits the eye witness. In the instant case we find no such situation in view of the above evidence of the Medical Officer and probability of sustaining the incised wounds by a sickle which has a sharp edged blade. In other words the defence can not be permitted to use the medical evidence to discredit the credibility of the eye witness. 17. Reference was also made to two abrasions found on the outer side of the right and left leg at their lower end. It has come in the evidence of the eye witness that Km. Chanoli Devi had returned after collecting the fuel wood from the jungle and the possibility can not be ruled out that these abrasions were sustained prior to the actual assault on her person by the appellant. These abrasions can also not be taken to indicate that the victim was assaulted in some other manner when her legs were tied by some rope which caused abrasions on both the legs at their lower end. It was also argued that absence of any incised wound or injury on the hands of the victim also indicate that she was not assaulted in the manner as alleged because if she was to be given sickle blows on the neck she would have attempted to protect herself by raising her hands and in the process was most likely to sustain injuries on the hands. The occurrence took place when the victim tried to stop the appellant from taking away the stolen box from the house and in the process she was suddenly attacked and given sickle blows on the neck and in a situation like this there was every probability of her not getting any opportunity to raise her hands to prevent the blow of sickle landing on her neck and face. Therefore this aspect of the matter and the absence of any injury on the hands could also not be taken to dispel the prosecution version and reliable evidence of above eye witness. In short the medical evidence of the case does not run counter to the prosecution story and the evidence of the eye witness Bahadur Singh. He being the wholly reliable witness the learned Sessions Judge rightly accepted his evidence in proof of the prosecution version that appellant while being resisted from taking away the stolen property fatally assaulted Km. Chanoli Devi who died instantaneously at the spot. 18. The testimony of Chatur Singh (P.W.3) was also sought to he discarded by the learned Amicus Curiae on the ground that the witness was far away from the house in the field and was not expected to reach in time there at the scene of the incident to see the appellant coming out of the room with a box and blood stained sickle and running away from there after fatally assaulting Km. Chanoli Devi. Admittedly the witness was doing some work in his field which is adjoining to his residential house and the field extends in the east, south and west of the house as shown in the site plan (Ext.Ka.9). The factual situation was also not disputed in the cross-examination. The informant on the alarm raised and being summoned by his son ran towards his house. It has come in the evidence that he was at a distance of about 100 paces when he heard the noise and shouts and the manner in which the assault took place it was highly probable that the witness was able to reach the house before the appellant could finally escape from there. The evidence of the witness is quite natural in the sense that when he reached at his house the appellant was seen moving away towards the hillock side with sickle and box and the appellant's identity was thus fixed. The evidence of this witness being relevant support the evidence of the eye witness in regard to the identity of the appellant as the assailant of the victim of the case. 19. Against this witness it was submitted that strangely enough witness gave out that the box was recovered on next day of occurrence i.e. 20-8-1988 whereas the evidence of I.O. P.W.7 and memo of recovery of the box, Ext. 19. Against this witness it was submitted that strangely enough witness gave out that the box was recovered on next day of occurrence i.e. 20-8-1988 whereas the evidence of I.O. P.W.7 and memo of recovery of the box, Ext. Ka.4 indicate that the box was in fact found on 19-8-1988 itself. It was found lying out side the western door of the house of informant. It has come in the evidence of I.O. that the box was recovered during the night time and it appears to be the reason that due to some confusion the witness gave out that the box was recovered on the next day. At any rate this discrepancy does not go to the root of the matter and shake basic version of the witness so far as it relate to the fixing of the identity of the culprit. 20. The appellant was arrested by the Investigating Officer on' 20.8.1988 and the Memo, Ext.Ka.15 was then prepared. Informant Chatur Singh was accompanying the Investigating Officer and other police personnel at that time. The arrest was made at about 3 p.m. on 20.8.1988 and thereafter according to the Investigating Officer at the instance of the appellant the sickle (Ext.1) was recovered from the bushes at a short distance from the house of the informant at about 5 p.m. on 20-8-1988. According to the informant the sickle was recovered at the instance of appellant at about 2-3 p.m. on 20-8-1988 and pointing out to this it was again submitted that the evidence of the informant does not stand corroborated as regards the time of the recovery by the evidence of Investigating Officer and therefore his evidence was highly discrepant and unreliable. We see no substance in this argument also because the difference of time of recovery of the sickle at the instance of the appellant could not safely be taken to discard the basic version of the witness regarding his reaching at the scene of incident in time to see the appellant moving away after committing the crime and thus fixing his identity. In our view the learned Sessions Judge also properly appraised the evidence of the witness and rightly come to the conclusion that the evidence being relevant corroborate the evidence of eye witness that it was none other than the appellant who committed robbery and fatally assaulted the victim Km. In our view the learned Sessions Judge also properly appraised the evidence of the witness and rightly come to the conclusion that the evidence being relevant corroborate the evidence of eye witness that it was none other than the appellant who committed robbery and fatally assaulted the victim Km. Chanoli Devi at the time of the incident. 21. Coming to the evidence of recovery of the sickle (Ext-1) it need to be stated that the evidence of Investigating Officer S.I. Arun Kumar Pandey (P.W.7) and that of the informant Chatur Singh (P.W.3) prove that from the disclosure made by the appellant the fact discovered was that the appellant had concealed the sickle from which place it was recovered by him after arrest. The fact as regards the disclosure statement also find place in the memo of recovery, Ext. Ka.5 and therefore in our view the essential ingredients of Section 27 of the Evidence Act were satisfied by the material on record and this aspect of the matter also establish that it was none other than the appellant who fatally assaulted the victim during the commission of robbery. Here it need to be mentioned that the Medical Officer also affirmed that the ante-mortem injuries found on the person of the victim were probably caused by the sickle (Ext.1) recovered at the instance of the appellant. 22. The veracity of the F.I.R. was also adversely commented upon by the learned Amicus Curiae by referring to the evidence of informant Chatur Singh. The witness corroborated the prosecution version about the preparation of the written F.I.R., Ex.Ka.1 from scribe Gopal Ram Arya and filing of the same by him at the police station on the date of the occurrence itself but due to some confusion the witness stated in cross examination that it was prepared later on when the police came at the scene of the incident with him from the police station. The evidence of constable clerk Rajvir Singh (P.W4) and the Investigating Officer however do not indicate that the F.I.R. was later on prepared and was ante-timed and therefore the infirmity which occurred in the cross-examination of the informant regarding the preparation of the F.I.R. can not safely be taken to assail the genuineness of the F.I.R., Ext.Ka.1 and it can not be safely accepted that it was prepared after due consultations and deliberations to falsely implicate the appellant in the case. It is also of significance that there is absolutely nothing on the record to indicate that the informant was inimical towards the appellant or that he has a motive to falsely implicate the appellant in the case instead of the real culprit. The evidence prove that the appellant went inside the house to commit theft and when he was caught and intercepted by the victim Km. Chanoli Devi he resorted to violence by picking up a sickle from the window and fatally assaulted her at the scene of the incident. 23. For the reasons aforesaid we are of the firm view that the learned Sessions Judge has rightly found the evidence of the prosecution as reliable to prove the guilt of the appellant beyond reasonable doubt and therefore the appellant was rightly convicted and sentenced to undergo life imprisonment under Section 302 I.P.C. and two years R.I. under Section 394 I.P.C. There being no merit in this appeal the same is hereby dismissed. Let the record be sent to the Court concerned for compliance. Compliance report be submitted to the Court in two months.