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2022 DIGILAW 21 (UTT)

Karam Chand v. State of Uttarakhand

2022-02-22

N.S.DHANIK, S.K.MISHRA

body2022
JUDGMENT : S.K. Mishra, J. In this appeal, the appellant-Karam Chand, assails his conviction under Section 302 of the Indian Penal Code, 1860, (hereinafter referred as “the Penal Code” for brevity), and sentence of imprisonment for life recorded by the learned IInd Additional Sessions Judge, Rudrapur, District Udham Singh Nagar in Sessions Case No.100 of 2003. 2. Shown of unnecessary details, the case of the prosecution is that one Ram Samujh, S/o Shiv Ratan lodged a complaint before the P.S. Jaspur, District Udham Singh Nagar, that his Sant Lal went to the forest on 05.02.2003, at about 7-8 AM, for attending call of nature. But, he did not return from the forest. In the evening, one Bijli informed the informant that his son is lying dead inside the forest. Then they went on the spot where the dead body was lying, found several injuries on his persons. Accordingly, a police case was registered, and investigation of the case was taken up by the Investigating Officer. In course of investigation, he examined witnesses, sent the dead body for post-mortem examination, seized material objects like wearing apperals of the deceased, and the blood-stained axe on the discovery statement made by the appellant under Section 27 of the Indian Evidence Act, 1872 (hereinafter referred to as the “Evidence Act” for brevity), he arrested the accused, and forwarded him to the Court. Upon completion of the investigation, he submitted the charge-sheet under Section 302 of the Penal Code against the appellant. 3. The defence took the plea of simple denial and false implication by the prosecution. 4. In order to prove its case, the prosecution examined eight witnesses, and relied upon several documents including the Post-Mortem Report, and discovery statement made by the appellant. 5. P.W.5 Tirath Kumar is the eye-witness who has supported the case of the prosecution, basing on whose testimony, mainly, the learned IInd Additional Sessions Judge has convicted the appellant. 6. P.W. 2 Bhure Singh and P.W. 3 Tapeshwar Pal are two other eye-witnesses, who have not supported the case of the prosecution, and have been cross-examined by the prosecution after having obtained permission under Section 154 of the Evidence Act. 7. P.W. 1 Ram Samujh is the informant of the case, and he happens to be the father of the deceased. 8. 7. P.W. 1 Ram Samujh is the informant of the case, and he happens to be the father of the deceased. 8. P.W. 4 Sadik Hussain, P.W. 6 Ranjit Singh are two formal witnesses examined on behalf of the prosecution to prove seizures etc. 9. P.W. 7 Dr. Madan Mohan has conducted the post-mortem examination on the dead body of the deceased, and P.W. 8 S.I. Rajveer Singh is the Investigating Officer of this case. 10. Neither any witness were examined on behalf of the defence, nor any documents were led into evidence. 11. The learned Trial Court, after analysis of the evidence, came to the conclusion that the prosecution has proved its case beyond all reasonable doubt, and accepted the evidence of P.W. 5 Tirath Kumar, which was duly corroborated by the medical evidence in the shape of the oral testimony of P.W. 7 Dr. Madan Mohan, contents of the Post-Mortem Report, and the recovery of the weapon of offence, i.e., Axe ¼dqYgkM+h½ at the instance of the appellant, which on chemical examination was found to have been stained with human blood. 12. Initially, on 30.12.2003 the judgment of conviction was passed. The appellant preferred an appeal to this Court which was registered as Criminal Appeal No.29 of 2004. A Division Bench of this Court allowed the criminal appeal, set-aside the judgment, and remanded the matter back to the learned Additional Sessions Judge to re-examine the appellant under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the “Code” for brevity), as the learned Additional Sessions Judge, while recording the conviction at the first instance had not put certain material questions to the appellant regarding the recovery of weapon of offence etc. 13. After remand, the learned Additional Sessions Judge again took of the matter from the stage of Section 313 examination of the appellant, and after a proper hearing, passed the judgment of conviction on 17.12.2012. 14. Mr. B.D. Pande, the learned counsel for the appellant, would argue that evidence of P.W. 5 Tirath Kumar cannot be relied upon as the other two eye-witnesses, i.e. P.W. 2 Bhure Singh and P.W. 3 Tapeshwar Pal, have not supported the case of the prosecution. He would argue that a single eye-witness should not be relied upon, especially, when the other two eye-witnesses have not supported the case of the prosecution. In essence, Mr. He would argue that a single eye-witness should not be relied upon, especially, when the other two eye-witnesses have not supported the case of the prosecution. In essence, Mr. Pande, would argue that because P.W. 2 Bhure Singh and P.W. 3 Tapeshwar Pal have not supported the case of the prosecution, P.W. 5 Tirath Kumar cannot be relied upon to record a conviction. 15. The second limb of argument of Mr. Pande would be that after the remand, the learned IInd Additional Sessions Judge did not apply his mind afresh, and passed an identical order convicting the appellant, as was drawn by him in the first instance itself. 16. Mr. Pande, the learned counsel would further argue that the incident took place during morning hour of 05.02.2003, whereas the witness, especially, P.W. 5 Tirath Kumar reveal about this incident before the police on the evening of 06.02.2003. So, he would argue that as the witnesses did not immediately disclose before the police who arrived in the village in the evening of 05.02.2003, the eyewitnesses should not be believed. On the basis of such argument advanced, Mr. Pande, the learned counsel would argue that the appeal should be allowed and the conviction should be set-aside. 17. Mr. Amit Bhatt, the learned Deputy Advocate General appearing for the State, would argue that in this case the prosecution has proved its case beyond all reasonable doubts, and there is no reason to disbelieve P.W. 5 Tirath Kumar, the solitary eye-witness, as his evidence is quite squarely and effectively supported by the medical evidence, and also the discovery of the weapon of offence at the instance of the appellant. 18. The learned Deputy Advocate General would further submit that the judgment passed by the learned IInd Additional Sessions Judge is a well reasoned and properly discussed one, and it requires no interference. Hence, he prays that the appeal be dismissed. 19. In a case of murder, the first question to be determined is whether the death of the deceased was homicidal in nature. The defence, in this case, has not disputed the identity of the dead body to be that of the deceased Sant Lal. Hence, there is no point in discussing those materials in this judgment. 20. P.W.7 Dr. Madan Mohan, has stated that on 06.02.2003, he was posted at Government Hospital, Kashipur. The defence, in this case, has not disputed the identity of the dead body to be that of the deceased Sant Lal. Hence, there is no point in discussing those materials in this judgment. 20. P.W.7 Dr. Madan Mohan, has stated that on 06.02.2003, he was posted at Government Hospital, Kashipur. On that day, at about 1:50 P.M., he conducted the post-mortem on the dead body of Sant Lal, and found the following injuries:- “1. Incised wound left side of head over left parietal scalp and left frontal region upon left eye brow about 10cm X4cm X Scull bone deep. Laceration of bone present beneath wound about 8cm X2cm X0.5cm. 2. Incised wound left side of neck upped 1/3rd, parallel to mandible about 9cm X 5cm X deep upto body of cervical vertebrae about 4-5 level. Carotid vessels left vertebral vessel att. veins subcutaneous nerve tissue. Sternocleidomastoid and all stenches upto cervical vertebrae are cut. Transverse process are cut and body upto 1cm deep. 3. Incised wound neck above the injury no.2 about 4cm X 1cm X skin deep. 4. Incised wound right shoulder over back over suprascapular about 6cm X 3cm X bone deep. 5. Incised wound 2cm X 1cm X skin deep left arm anterior upper 1/3rd.” 21. He further stated on oath that in his opinion the death of the deceased Sant Lal was caused because of antemortem injuries, and excessive bleeding and hemorrhage. His testimony has been duly supported by the contents of the Post-Mortem Report, and in the cross-examination, nothing substantial has been brought out from his mouth to discredit his testimony. Thus, it is clear that the learned IInd Additional Sessions Judge was correct in holding that the death of deceased Sant Lal was homicidal in nature. 22. Now the evidence of P.W.5 Tirath Kumar has to be considered as his evidence is pivotal in this case. As observed earlier, P.W.2 Bhure Singh and P.W.3 Tapeshwar Pal have not supported the case of the prosecution. Hence, the evidence of P.W.5 Tirath Kumar becomes all the more important. 23. P.W.5 Tirath Kumar has stated, on oath, before the learned IInd Additional Sessions Judge that on 05.02.2003, at about 8:00 P.M., Sant Lal went to the forest for attending the call of nature. He was followed by Karam Chand, S/o Ram Dhani, who was carrying an axe ¼dqYgkM+h½ . 23. P.W.5 Tirath Kumar has stated, on oath, before the learned IInd Additional Sessions Judge that on 05.02.2003, at about 8:00 P.M., Sant Lal went to the forest for attending the call of nature. He was followed by Karam Chand, S/o Ram Dhani, who was carrying an axe ¼dqYgkM+h½ . After some time, he and Tapeshwar also proceeded towards the forest for collecting wood. At that time, Bhure Yadav was coming from the pond side. After walking for some time, Karam Chand assaulted Sant Lal by means of the axe. Then all the three witnesses protested why Karam Chand is assaulting Sant Lal, to which Karam Chand said that the deceased Sant Lal has illicit relationship with his wife that is why he is punishing him. Then he threatened all the three witnesses and said that if they reveal about this incident before anybody, then the same fate will meet the witnesses. Then the witnesses stated that out to fear they went back to their respective houses, and did not reveal to anybody. On the next day, on 06.02.2003, when the Sub-Inspector came to the village, he gave the statement. 24. In the cross-examination, this witness has stated that on the date of occurrence, he had been to the forest for collecting wood, and with him, Tapeshwar and Bhure were also present. Though, he has been cross-examined in length, not a single contradiction of this witness with respect to his previous statement under Section 161 of the Code has been brought out by the defence. Hence, there is a ring of truth in the evidence of this witness. 25. It is true that P.W.2 Bhure Singh and P.W.3 Tapeshwar Pal have not supported the case of the prosecution, but for that reason, P.W.5 Tirath Kumar cannot be disbelieved. 26. The Hon’ble Supreme Court, in the case of Sat Paul vs. Delhi Administration, AIR 1976 SC 294 , has decided that even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the court by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. The Hon’ble Supreme Court further laid down that if in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as a matter of prudence, discard his evidence in toto. 27. In this case, the prosecution has cross-examined the two witnesses P.W.2 Bhure Singh and P.W. 3 Tapeshwar Pal and by confronting their previous statements recorded under Section 161 of the Code, has thoroughly discredited them. So, it is our opinion that though P.W.2 Bhure Singh and P.W.3 Tapeshwar Pal have not supported the case of the prosecution, it will not discredit P.W. 5 Tirath Kumar in view of the fact that their testimony is thoroughly discredited by the prosecution and has to be jettisoned in its entirety. 28. The argument advanced by the learned counsel for the appellant that delayed examination of the witness, or in other words, delayed disclosure of the witness before the Investigating Officer will make him a suspected witness. 29. The Hon’ble Supreme Court, in the case of Goutam Joardar vs. State of West Bengal, (2021) SCC Online SC 910, has held that mere delay of examination of witnesses and recording of statements of concerned eye-witness by itself cannot result in rejection of their testimonies. The Hon’ble Supreme Court further held that the material on record definitely establishes the fear created by the accused. If the witnesses felt terrorized and frightened and did not come forward for some time, the delay in recording their statements stood adequately explained. 30. The Hon’ble Supreme Court further held that the material on record definitely establishes the fear created by the accused. If the witnesses felt terrorized and frightened and did not come forward for some time, the delay in recording their statements stood adequately explained. 30. Applying this ratio to this case, it is seen that P.W.5 Tirath Kumar has very categorically stated on oath before the learned IInd Additional Sessions Judge that after committing the murder of the deceased, when the witnesses protested, the appellant threatened them with the same consequences if they devolve this fact before anybody. 31. We find sufficient force in the argument of the learned Deputy Advocate General that in such case delayed examination or delayed disclosure of the name of the appellant before the Investigating Officer will not be fatal to the case of the prosecution, and the evidence cannot be jettisoned or thrown away. 32. It is also well settled that no number of witnesses is required for proving any fact under Section 134 of the Evidence Act. It has been laid down that no particular numbers of witness will be required for proving any particular fact. In fact, thousands untruthful witness may not be sufficient to prove a particular fact, which can be proved by a single or solitary truthful witness. However, while deciding a case of a solitary witness or where only one witness is coming forward to depose against the accused, then the Court should also take into consideration the surrounding circumstances and test his evidence in the anvils of the objective circumstances of the case. 33. In this case, the learned counsel for the appellant has not disputed the medical evidence. From the medical evidence, discussed hereinabove, it is clear that the deceased Sant Lal had sustained several incised injuries which can be caused by an axe. This is a very material objective circumstance as well as a corroborative piece of evidence which makes the evidence of P.W.5 Tirath Kumar more reliable. 34. The learned counsel for the appellant has also not disputed that the appellant gave a disclosure statement under Section 27 of the Evidence Act, and in consequence thereof, the axe was seized by the Investigating Officer. Such axe was sent to the State Forensic Science Laboratory, Agra. 34. The learned counsel for the appellant has also not disputed that the appellant gave a disclosure statement under Section 27 of the Evidence Act, and in consequence thereof, the axe was seized by the Investigating Officer. Such axe was sent to the State Forensic Science Laboratory, Agra. The report of the FSL reveals ‘human blood’ was found on the axe seized by the Investigating Officer at the instance of the appellant. P.W.6 Ranjit Singh has also supported the prosecution about the discovery statement and the recovery of the weapon of offence at the instance of the appellant. 35. In that view of the matter, this Court is of the opinion that the objective circumstances appearing in this case also fit in and corroborate, in material particulars, the testimony of P.W.5 Tirath Kumar. There is no reason to disbelieve P.W.5 Tirath Kumar. 36. The other argument that was advanced by the learned counsel for the appellant is that the judgment appears to be a mirror image of the earlier judgment. 37. We have examined the judgment. Though, it is in the same lines, it cannot be said that the learned IInd Additional Sessions Judge has not considered the materials available on record and has not discussed the matter. The judgment appears to be a clear and perspicacious one. 38. In that view of the matter, we are not inclined to interfere with the judgment passed by the learned IInd Additional Sessions Judge. Hence, the appeal is, hereby, dismissed being devoid of any merit. 39. Let a copy of this judgment along with TCRs be sent back to the trial court for forthwith. Re-committal process be taken up forthwith.