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2022 DIGILAW 66 (UTT)

Prem Singh v. State of Uttarakhand

2022-03-30

RAVINDRA MAITHANI

body2022
JUDGMENT : RAVINDRA MAITHANI, J. 1. Present appeal has been preferred against the judgment and order dated 21.06.2004, passed in Sessions Trial No. 15 of 2000, State vs. Prem Singh and Another, by the court of Sessions Judge, Chamoli (for short “the case”). By the impugned judgment and order, the appellant has been convicted for the offence punishable under Section 304 IPC and sentenced to rigorous imprisonment for a period of seven years with a fine of Rs. 3,000/- in default of payment of the fine to undergo imprisonment for four months. It may be noted that by the impugned judgment and order, co-accused Jawa Devi has been acquitted of the charge under Section 304 IPC. 2. Facts as emerged from the evidence, briefly stated, are as follows: On 10.04.1998, the deceased Ratan Singh boarded a bus and alighted at Silangi. It so happened that, as soon as, he alighted from the bus, the appellant along with his wife and daughter were approaching the road, while carrying grass from their fields. The deceased made obscene remarks on the wife of the appellant. They had a small altercation. The deceased, thereafter, hold the wife of the appellant by her hand. It is, at this stage, the appellant snatched the sickle from the hand of his wife and attacked the deceased on his neck. The deceased Ratan Singh fell down. Many villagers gathered at the scene of occurrence. PW-1 Ranjeet Singh, PW-2 Soban Singh and PW-3 Gaje Singh immediately took the deceased to the Hospital at Gairsain. PW-9 Dr. Satendra Kumar gave first aid to the deceased and forwarded him to the Surgeon. The deceased was again taken at the Community Health Center, Karnaprayag, where he was admitted at 11:00 P.M. Unfortunately, the deceased died at 2:00 in the midnight. PW-2 Soban Singh returned to the village and enquired about the incident from the villagers. Thereafter, he lodged a report of the incident at 10:00 A.M. in the morning at Police Check Post Meharchauri, which is 9 KM from the place of incident. It is this FIR, in which, Case Crime No. 14 of 1998 was registered and investigation was carried out. 3. The Investigating Officer (“IO”) on 11.04.1998, apprehended the appellant and at his instance, recovered the weapon of offence (a sickle) from the house of the appellant. It is this FIR, in which, Case Crime No. 14 of 1998 was registered and investigation was carried out. 3. The Investigating Officer (“IO”) on 11.04.1998, apprehended the appellant and at his instance, recovered the weapon of offence (a sickle) from the house of the appellant. On 25.04.1998, the clothes worn by the appellant, at the time of incident, were also recovered from the place near the house of the appellant. On 11.04.1998, inquest of the deceased was conducted. According to the witnesses, the deceased had injuries. Post mortem of the deceased was also conducted, on the same day, at 4:00 P.M. The injuries were noted. According to the Doctor conducting post mortem, the cause of death was haemorrhage and shock, as a result of ante mortem injuries. 4. The IO prepared the site plan, forwarded the recovered articles for forensic examination. The Forensic Examination Report was received, confirming that the articles i.e. the sickle and clothes had human blood. After investigation, charge sheet was submitted against the appellant and his wife Smt. Jawa Devi. 5. On 25.10.2000, charge under Section 302 IPC was framed against the appellant, to which, he denied and claimed trial. Smt. Jawa Devi was also charged under Section 302 read with 34 IPC, to which, she denied and claimed trial. 6. In order to prove the case, the prosecution examined, in all eleven witnesses, namely, PW-1 Ranjeet Singh, PW-2 Soban Singh, PW-3 Gaje Singh, PW-4 Dr. N.K. Prasad, PW-5 Jodh Singh, PW-6 Trilok Singh, PW-7 Dinesh Purohit, PW-8 Sub Inspector, Rishi Pal Singh, PW-9 Dr. Satendra Kumar, PW-10 Dr. Sudhir Kumar and PW-11 Constable, Bache Singh. 7. Appellant was examined under Section 313 of the Code of Criminal Procedure, 1973 (for short “the Code”). According to him, the witnesses have falsely deposed. He is innocent. He has been falsely implicated. After examination of the appellant under Section 313 of the Code, in his defence, the appellant examined DW-1 Laxmi @ Hema. 8. By the impugned judgment and order, Smt. Jawa Devi has been acquitted of the charge, but the appellant has been convicted under Section 304 IPC and sentenced, as stated hereinbefore. Aggrieved by it, the appellant has preferred this appeal. 9. Heard learned Senior Counsel for the appellant, learned counsel for the State and perused the record. 10. 8. By the impugned judgment and order, Smt. Jawa Devi has been acquitted of the charge, but the appellant has been convicted under Section 304 IPC and sentenced, as stated hereinbefore. Aggrieved by it, the appellant has preferred this appeal. 9. Heard learned Senior Counsel for the appellant, learned counsel for the State and perused the record. 10. Learned Senior Counsel would submit that the prosecution has utterly failed to prove the case beyond reasonable doubt. The appellant ought to have been acquitted of the charge. Therefore, the appeal deserves to be allowed. Learned Senior Counsel has raised the following points in his arguments: (i) The FIR is delayed by 28 hours. (ii) The informant is not an eyewitness. (iii) The FIR does not disclose as to who told the informant about the incident. (iv) The recovery is much doubtful. It is highly unbelievable that at midnight about 12:00, the appellant along with his wife would be outside the house waiting for the police to come and give them the articles. (v) It is also highly improbable that after a long time gap, from the same place the clothes could have been recovered by the police. (vi) There is no medical examination report of the deceased. (vii) PW-9 Dr. Satendra Kumar did not prove the medical examination report because a photocopy was exhibited. The originals were not placed before the court. (viii) No blood sample of the deceased was obtained. (ix) At Karnaprayag Hospital, the doctor has noted that the deceased was smelling with alcohol. Had he been properly examined, his blood test could have been taken, which could have helped this Court to appreciate the controversy in a proper manner. 11. Learned Senior Counsel would also submit that, in fact, PW-4 Dr. N.S. Tomar has fully demolished the prosecution case. He is a doctor, who conducted the post mortem. In his cross examination, he has stated that the injury, which the deceased had, could not have been caused by the sickle. It is also argued that, in fact, prosecution has not established that the injury could have been caused by the sickle. N.S. Tomar has fully demolished the prosecution case. He is a doctor, who conducted the post mortem. In his cross examination, he has stated that the injury, which the deceased had, could not have been caused by the sickle. It is also argued that, in fact, prosecution has not established that the injury could have been caused by the sickle. It is also argued that the statements of PW-1 Ranjeet Singh and PW-2 Soban Singh are not reliable because according to them, PW-3 Gaje Singh had gone alongwith him at the place of incident, but PW-3 Gaje Singh has not stated about it, the statement of PW-3 is not reliable, because according to him, the deceased had told it to him that he was assaulted by the appellant and his wife. It is argued that in his cross examination, this witness confirms that when he reached at the spot, the deceased was unconscious. Learned Senior Counsel also indicated the following discrepancies in the statements of the witnesses: (i) PW-5 Jodh. Singh is not reliable. According to him, the deceased was in his verandah. He has not stated that he informed the father of the deceased. He is an interested witness and in his statement given to the IO, he has stated that he did not notice any person around the place of incident, when he reached there. Therefore, it is argued that he improved his statement. (ii) The statement of PW-6 Trilok Singh is also not reliable because he has developed a new story. He speaks about the bus. He has also improved the story. (iii) PW-7 Dinesh Purohit is a chance witness. His statement also does not prove the prosecution case. 12. Learned Senior Counsel would submit that according to PW-10 Dr. Sudhir Kumar, the cause of death was bleeding. It is argued that had adequate treatment been given to the deceased, his life could have been saved. Referring to the statement of DW-1 Laxmi @ Hema, it is argued that she is a truthful witness. She is daughter of the appellant. She was alongwith her parents when the incident took place. She has stated that in a scuffle, the deceased sustained injuries. She has categorically denied that it is the appellant, who attacked the deceased. 13. On the other hand, learned State counsel would submit that this case has its own context. She is daughter of the appellant. She was alongwith her parents when the incident took place. She has stated that in a scuffle, the deceased sustained injuries. She has categorically denied that it is the appellant, who attacked the deceased. 13. On the other hand, learned State counsel would submit that this case has its own context. The deceased and the appellant both are relatives and it is disclosed in the FIR itself; the FIR is prompt; soon after the incident, the deceased was rushed to the hospital at Gairsain, where his injuries were noted and thereafter, he was referred to the Higher Center at CHC Karnaprayag, where he died. The medical report supported the prosecution case. The inquest also records about the injuries and the injuries have also been noted in the post mortem report. It is argued that certain articles were recovered from the possession of the appellant, which on forensic examination supports the prosecution case. They had human blood on them. 14. Learned State Counsel would submit that statements of PW-1 Ranjeet Singh, PW-2 Soban Singh and PW-3 Gaje Singh are corroborative to each other. Their statements are supported by the statements of PW-6 Trilok Singh and PW-7 Dinesh Purohit. It is argued that, in fact, to a certain extent, prosecution case has also been proved by the statement of DW-1 Laxmi @ Hema. The appellant in his statement recorded under Section 313 of the Code did not utter a single word about the incident and the manner, in which, it has taken place. It is argued that the prosecution has been able to prove its case beyond reasonable doubt. There is no reason to make any interference and the appeal deserves to be dismissed. 15. PW-2 Soban Singh is the informant. According to him, on the date of incident, he was told that Ratan Singh has sustained injuries. He rushed to the place along with PW-1 Ranjeet Singh, PW-3 Gaje Singh and other villagers. Immediately, they took the deceased Ratan Singh to Gairsain, Hospital from where, he was forwarded to Karnaprayag Hospital, but there he died. According to PW-2 Soban Singh he returned to his village, inquired about the incident and lodged an FIR Ex.A1, which was, in fact, written by PW-1 Ranjeet Singh, the Village Pradhan. PW-1 Ranjeet Singh has also corroborated the statement of PW-2 Soban Singh. 16. According to PW-2 Soban Singh he returned to his village, inquired about the incident and lodged an FIR Ex.A1, which was, in fact, written by PW-1 Ranjeet Singh, the Village Pradhan. PW-1 Ranjeet Singh has also corroborated the statement of PW-2 Soban Singh. 16. PW-1 Ranjeet Singh in his examination-in-chief has stated that when he found the deceased Ratan Singh bleeding from his neck, they stopped a Jeep and took him to the hospital. Based on this statement, it is argued on behalf of the appellant that, in fact, PW-2 Soban Singh has not stated about any Jeep, by which they reached at the place of incident. This argument has less merits for acceptance, because PW-1 Ranjeet Singh has not told that he reached at the place of incident on any Jeep. What he told was that they stopped a Jeep and took the deceased to the hospital. It is the case of the prosecution that PW-1 Ranjeet Singh, PW-2 Soban Singh and PW-3 Gaje Singh took the deceased to the hospital. There is no discrepancy on this point. 17. PW-3 Gaje Singh is the father of the deceased. According to him, when he reached at the spot, the deceased told it to him that he was assaulted by the appellant. Thereafter, in a Jeep, according to this witness, the deceased was taken to the hospital. In his cross examination, this witness has categorically stated that when he reached at the spot, his son i.e. the deceased Ratan Singh was lying unconscious. He was not in a position to speak. All the witnesses have stated that, in fact, the deceased was not in a condition to speak. Therefore, the part of statement of the PW-3 Gaje Singh is not reliable, when he says that the deceased told it to him that he was assaulted by the appellant, because according to this witness himself, the deceased was not in a position to speak. He was unconscious. But, statement of PW-3 Gaje Singh is reliable to the extent that soon after the incident, he also reached at the place of the incident. 18. PW-5 Jodh Singh has stated that on the date of the incident, he noticed that the wife of the appellant was abusing the villagers. When he reached near the shop of the deceased, he saw the deceased. 18. PW-5 Jodh Singh has stated that on the date of the incident, he noticed that the wife of the appellant was abusing the villagers. When he reached near the shop of the deceased, he saw the deceased. He was sitting on a bench holding his cheeks and he was crying. According to this witness, he was told that the appellant and his wife have assaulted him. According to this witness, thereafter, he returned to his house. This witness is uncle of the deceased. PW-5 Jodh Singh has told it to the IO that deceased was lying unconscious in his verandah and there was no person around him. It doubts the veracity of the statement of PW-5 Jodh Singh, when he says that the deceased revealed it to him that he was assaulted by the appellant. 19. PW-6 Trilok Singh is the person, who claims that he witnessed the incident. According to him, on the date of the incident, he was returning to his house, when he noticed a vehicle parked in the market, which had a Registration No. UP-05-0132. It was driven by Dinesh Chandra. He noticed that, there the deceased had a conversation with the appellant. The appellant was there alongwith his wife and a daughter. They had little more altercations. According to this witness, the appellant, who was ahead of his wife, returned, took the sickle from his wife and attacked the deceased on his neck two to three times. Due to which, the deceased fell on the ground. 20. PW-7 Dinesh Purohit is the Driver and owner of the bus bearing Registration No. UP-05-0132. He also states that on the date of incident, the deceased had boarded in his bus from Gairsain and alighted at Silangi. This witness had noticed altercation between the appellant and the deceased. 21. PW-9 Satendra Kumar is the Doctor, who gave first aid to the deceased at Government Hospital, Gairsain. According to this witness, the condition of the deceased was not well. He gave the first aid, noted the injury in the accidental register and referred the deceased to the Higher Center. He proved the prescription Ex.A16 by which the deceased was referred to the higher centre as well as the information he gave to the police and the reply which he gave in response to a query of the police as Ex.A17 and Ex.A18, respectively. 22. PW-10 is Dr. He proved the prescription Ex.A16 by which the deceased was referred to the higher centre as well as the information he gave to the police and the reply which he gave in response to a query of the police as Ex.A17 and Ex.A18, respectively. 22. PW-10 is Dr. Sudhir Kumar, who treated the deceased at Karnaprayag, Hospital at 11:00 A.M. on 10.04.1998. He proved the documents Ex.A19 to Ex.A20. According to him, in the night, at 2:00 a.m. the deceased died. 23. PW-4 N.K. Prasad is another Doctor, who conducted the post mortem of the deceased on 11.04.1998. According to him, he found the following ante mortem injuries on the person of the deceased: (i) Lacerated and stitched wound with ten stitches size 10 cm x 4 cm muscle deep, left side of the neck. (ii) Lacerated and stitched wound with seven stitches size 6 cm x 1 cm skin deep left side of the skull. (iii) Abrasion 5 cm x 2 cm backside of the left hand. (iv) Abrasion 4 cm x 2 cm backside of the left shoulder. 24. This witness has proved the post mortem report Ex.A2. In his cross-examination, this witness has stated that the kind of injury which he has noticed could not have been caused by a sickle. But, why is it so? How could Doctor say that the injury could not be caused by the sickle? A mere statement cannot demolish the entire prosecution case. 25. PW-11 Constable, Bache Singh has recorded the chik FIR and other police documents. He has stated about it. 26. PW-8 SI, Rishipal Singh is the IO. He prepared the site plan and took into custody the articles. He proved the recovery memo and the material articles, the sickle Ex.1, other documents and submitted charge sheet. 27. The incident took place on 10.04.1998 at 6:45 P.M. The deceased was taken to the hospital, where he was received at 7:50 P.M. PW-9 Dr. Satendra Kumar has proved the prescription Ex.A16. It has been objected to on the ground that the Doctor did not bring the originals on that date. The photocopy could not have been exhibited. But, these objections were not raised at the time when it was exhibited. PW-9 Dr. Satendra Kumar is the author of the prescription. 28. Satendra Kumar has proved the prescription Ex.A16. It has been objected to on the ground that the Doctor did not bring the originals on that date. The photocopy could not have been exhibited. But, these objections were not raised at the time when it was exhibited. PW-9 Dr. Satendra Kumar is the author of the prescription. 28. In the case of Sonu alias Amar vs. State of Haryana, (2017) 8 SCC 570 , the Hon’ble Supreme Court has discussed the law with regard to the marking of exhibits and inadmissibility of the documents. The Hon’ble Supreme Court observed as hereunder: “32. It is nobody's case that CDRs which are a form of electronic record are not inherently admissible in evidence. The objection is that they were marked before the trial court without a certificate as required by Section 65-B(4). It is clear from the judgments referred to supra that an objection relating to the mode or method of proof has to be raised at the time of marking of the document as an exhibit and not later. The crucial test, as affirmed by this Court, is whether the defect could have been cured at the stage of marking the document. Applying this test to the present case, if an objection was taken to the CDRs being marked without a certificate, the Court could have given the prosecution an opportunity to rectify the deficiency. It is also clear from the above judgments that objections regarding admissibility of documents which are per se inadmissible can be taken even at the appellate stage. Admissibility of a document which is inherently inadmissible is an issue which can be taken up at the appellate stage because it is a fundamental issue. The mode or method of proof is procedural and objections, if not taken at the trial, cannot be permitted at the appellate stage. If the objections to the mode of proof are permitted to be taken at the appellate stage by a party, the other side does not have an opportunity of rectifying the deficiencies. The learned Senior Counsel for the State referred to statements under Section 161 Cr.P.C. 1973 as an example of documents falling under the said category of inherently inadmissible evidence. CDRs do not fall in the said category of documents. The learned Senior Counsel for the State referred to statements under Section 161 Cr.P.C. 1973 as an example of documents falling under the said category of inherently inadmissible evidence. CDRs do not fall in the said category of documents. We are satisfied that an objection that CDRs are unreliable due to violation of the procedure prescribed in Section 65-B(4) cannot be permitted to be raised at this stage as the objection relates to the mode or method of proof.” (Emphasis supplied) 29. In the instant case, the objection was not raised at the time of marking exhibit on Ex.A-16. Had such objection been taken at that stage, the prosecution would have rectified the error. The defect would have been cured. Therefore, now at this stage, the appellant may not be permitted to raise objections with regard to the proof of Ex.A-16. 30. Even otherwise, PW-9 Satendra Kumar has stated about the treatment, which he gave to the deceased. He has proved two other documents, which are Ex.A17 and Ex.A18. They have not been doubted. In Ex.A18, PW-9 Dr. Satendra Kumar has categorically stated that the deceased was brought to the hospital at 7:50 P.M. He was given first aid and referred to the surgeon. Immediately, thereafter, the deceased was admitted in the Hospital at Karnaprayag at 11:00 P.M. At 2:00 A.M. in the night, the deceased died. The FIR was lodged at 10:00 am in the morning. It is not delayed FIR. 31. PW-2 Soban Singh, who lodged the FIR has stated that after the deceased died, he returned to his village, inquired from the villagers and thereafter, lodged the FIR. 32. Learned Senior Counsel for the appellant would submit that the FIR could not have been lodged at 10:00 in the morning because inquest itself was conducted at 10:40 AM at Karnaprayag. It is argued that the distance between the Karnaprayag and Meharchauri is 60 KM. It makes no difference. PW-1 Ranjeet Singh is the scribe of the FIR and PW-2 Soban Singh, the informant are not witnesses of the inquest. If inquest is conducted at 10:40 A.M. it per se cannot belie the factum of lodging the FIR at 10:00 A.M at Police Outpost Meharchauri. FIR is prompt. 33. It makes no difference. PW-1 Ranjeet Singh is the scribe of the FIR and PW-2 Soban Singh, the informant are not witnesses of the inquest. If inquest is conducted at 10:40 A.M. it per se cannot belie the factum of lodging the FIR at 10:00 A.M at Police Outpost Meharchauri. FIR is prompt. 33. It is true that in the FIR, PW-2 Soban Singh, the informant has not disclosed the name of the person, who told that it is the appellant, who attacked the deceased. But, it does not make the FIR doubtful. PW-1 Ranjeet Singh, PW-2 Soban Singh, PW-3 Gaje Singh and PW-5 Jodh Singh reached at the place of incident, soon after the incident. To that extent, their statements are reliable. It is also proved that it is PW-1 Ranjeet Singh, PW-2 Soban Singh and PW-3 Gaje Singh, who took the deceased in a Jeep to the hospital. 34. During the course of argument, some contradictions have been highlighted. PW-3 Gaje Singh has stated that he was told about the incident by PW-5 Jodh Singh. It is argued that PW-5 Jodh Singh has not told that he informed Ratan Singh. In fact, it is not the material contradiction. The incident took place in the village. Everyone must have come to know about the incident. PW-1 Ranjeet Singh, PW-2 Soban Singh, PW-3 Gaje Singh and PW-5 Jodh Singh, they all reached at the place of incident, who told whom is immaterial. PW-6 Trilok Singh has been categorical in his statement. 35. It is argued that the recovery is highly improbable because according to the prosecution case, at midnight at about 12:00, the appellant and his wife were spotted outside the house when they were apprehended. Arguments have also been advanced with regard to the recovery of clothes after a few days. In fact, the recovery was not made at the midnight. PW-8 Rishi Pal Singh was In-charge of the Police Check Post Meharchauri on 11.04.1998. He has proved the recovery of sickle at the instance of the appellant. According to him, on that date, when he reached at the house of the appellant, they could spot the appellant and his wife and at 1:35 P.M. they were apprehended. This witness has proved the recovery memo Ex.A7. PW-8 Rishi Pal Singh has also stated about the recovery of clothes from the room belonging to the appellant on 25.04.1998. According to him, on that date, when he reached at the house of the appellant, they could spot the appellant and his wife and at 1:35 P.M. they were apprehended. This witness has proved the recovery memo Ex.A7. PW-8 Rishi Pal Singh has also stated about the recovery of clothes from the room belonging to the appellant on 25.04.1998. The sickle and clothes had blood stains. It was confirmed by the FSL report. 36. It is true that there is no medical examination report of the deceased, as such and his blood samples were not taken. But, it also does not doubt the prosecution case in any manner. The prosecution has established and proved that when taken to hospital at Gairsain, the deceased was given first aid and referred to the hospital at Karnaprayag, where he was also given further treatment. Those documents have been proved by the Doctors. 37. It may be noted that, in fact, the appellant has admitted that the deceased sustained injuries on the date, time and place as alleged by the prosecution. DW-1 Laxmi @ Hema has supported the prosecution case to that extent. According to her, while they were passing through the road, the appellant made obscene remarks on her mother. This is genesis of the incident. Thereafter, the altercations ensued. In fact, PW-6 Trilok Singh was also suggested on behalf of the appellant about obscene remarks made by the appellant. But, in his statement recorded at Page 5, PW-6 Trilok Singh did not confirm it. He said that he does not know that the deceased asked the wife of the appellant to stay with him and not with the appellant. 38. The only question which remains to be decided is as to whether it was the injury which he sustained in scuffle? Or was it a case as alleged by the prosecution? There are injuries on the neck and skull. The extent of the injuries has been noted in the post mortem report. DW-1 Laxmi @ Hema has also stated that the deceased was in inebriated condition. This witness would say that, in fact, the deceased was abusing them. He had scuffle with his mother. His father had intervened. But, according to this witness, in a scuffle with her mother, the deceased sustained injuries. PW-6 Trilok Singh would submit that the deceased had an altercation with the wife of the appellant. This witness would say that, in fact, the deceased was abusing them. He had scuffle with his mother. His father had intervened. But, according to this witness, in a scuffle with her mother, the deceased sustained injuries. PW-6 Trilok Singh would submit that the deceased had an altercation with the wife of the appellant. They were, in fact, quarreling. It is thereafter, according to this witness, that the appellant snatched the sickle from the hand of the wife and attacked the appellant. The place of incident is well established. It is on a road near the shop of the deceased. The witnesses have stated about it. In fact, DW-1 Laxmi @ Hema has also stated about the place of incident. 39. PW-7 Dinesh Purohit also supports the prosecution case. It is, in his bus, that the deceased travelled from Gairsain to Silangi. The statement of PW-6 Trilok Singh is inspiring confidence. It is reliable. His statement finds corroboration with the statements of other witnesses as well as by the medical evidence. 40. In view of the foregoing discussion, this Court is of the view that, in fact, the prosecution has been able to prove the case beyond reasonable doubt. Accordingly, the appeal deserves to be dismissed. 41. The appeal is dismissed.