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2024 DIGILAW 993 (ALL)

Dharampal v. State of U. P.

2024-04-08

NAND PRABHA SHUKLA

body2024
JUDGMENT : Nand Prabha Shukla, J. 1. Heard Ms. Mayuri Mehrotra, learned Amicus Curiae for the appellant and Sri Ratnesh Nandan Singh, learned Additional Government Advocate for the State. 2. Perused the record. 3. This Criminal Appeal has been filed against the Judgment and Order dated 03.07.2010 passed by the Additional Sessions Judge/Fast Track Court No.2, Bijnor in Sessions Trial No.140 of 2009 (State vs. Dharampal) arising out of Case Crime No.179 of 2008, under Sections 452, 304/34, 504, 506 IPC, Police Station Kotwali Dehat, District Bijnor, whereby the appellant Dharampal has been convicted under Sections 304/34 and 452 IPC and sentenced as follows: (i) Under Section 304/34: 10 years rigorous imprisonment with fine of Rs.10,000/-. (ii) Under Section 452 IPC: 3 years rigorous imprisonment with fine of Rs.3000/-. In case of default of fine, further imprisonment of 3 months simple imprisonment shall be awarded. All sentences to run concurrently. INTRODUCTORY FACTS 4. The prosecution version in brief, is that, on 26.02.2008, the first informant Ram Singh lodged the First Information Report (for short ‘FIR’) at Police Station Kotwali Dehat, District Bijnor, based on a written Tehrir (Exhibit-Ka1) dated 25.02.2008 scribed by Dumpi stating that on 21.02.2008 at around 6:00 pm when his son Harvansha was at home, the accused Dharampal armed with tabbal, his wife Somo and son Kapil armed with lathi and danda respectively entered into his house and hurled abuses and challenged them for dire consequences for not allowing them to wash the clothes at the tap. His son objected but all the three accused armed with tabbal, lathi and danda gave severe beatings to his son in order to kill him. Hearing the noise, the first informant and the villagers Raju and Abid rushed to the spot and tried to save Harvansha from the accused. The accused extended life threats and fled away. In the said incident of marpeet, his son Harvansha received severe injuries on his head and the body. He was given medical treatment at Government Hospital, Bijnor. As the condition of his son was critical, so he remained busy with the medical treatment and approached late to lodge an FIR. 5. Initially, the aforementioned FIR was registered under Sections 452, 323, 504, 506 and 308 IPC, subsequently, vide G.D. Rapat No. 29 dated 27.2.2008, the case was amended and section 304 IPC was added as Harvansha died on 26.2.2008. 5. Initially, the aforementioned FIR was registered under Sections 452, 323, 504, 506 and 308 IPC, subsequently, vide G.D. Rapat No. 29 dated 27.2.2008, the case was amended and section 304 IPC was added as Harvansha died on 26.2.2008. The inquest proceedings and the post mortem of the deceased were conducted on the same day. The investigation was entrusted to S.I. Ghanshyam Tyagi who reached the spot and recorded the statement of the witnesses and prepared the site plan. A recovery memo of Tabbal at the pointing of Dharampal was also prepared. After the completion of investigation, the charge-sheet dated 09.03.2008 was submitted against Dharampal and his wife Smt. Somo alias Somvati under Sections 452, 504, 506, 304 IPC. The co-accused Kapil being a juvenile, was also charge sheeted and was referred to the Juvenile Justice Board for further course of action. 6. After the committal proceedings, the Sessions Court framed the charges against the accused Dharampal and Smt. Somo alias Somvati under Sections 452, 304/34, 504, 506 IPC. The accused pleaded not guilty and claimed to be tried. During trial, the co-accused Smt. Somo alias Somvati died and the trial against her was abated on 24.02.2010. PROSECUTION EVIDENCE 7. During the trial proceedings, the prosecution examined as many as ten witnesses. Their testimony, in brief, are as follows: P.W.-1 Ram Singh: the first informant/father of the deceased/eyewitness stated on oath that he knew the accused Dharampal, Smt. Somo alias Somvati and Kapil, who were the resident of his village. There was previous enmity with Dharampal regarding water tap. Due to this reason, on 21.02.2008 at about 6:00 pm, when his son Harvansha was at home, in the meantime, Dharampal, his wife Smt. Somo alias Somvati and his son Kapil entered into their house. Dharampal was armed with tabbal, Smt. Somo was armed with lathi and Kapil was armed with danda. All the three accused challenged his son Harvansha for dire consequences for not allowing to fetch water from the water tap. Often, the accused washed dishes and cleansed the dirt etc. at the water tap which was objected by him and his son. This water tap was installed within his premises. The accused hurled abuses. His son objected. But the accused attacked and gave severe beatings to Harvansha with their weapon. Often, the accused washed dishes and cleansed the dirt etc. at the water tap which was objected by him and his son. This water tap was installed within his premises. The accused hurled abuses. His son objected. But the accused attacked and gave severe beatings to Harvansha with their weapon. At the time of incident, first informant was sleeping in his room hearing the noise, he reached the spot where other villagers also joined, amongst whom were Abid, Raju, his grandson Dumpi and his daughter Rajo, who intervened and saved Harvansha from the accused. While fleeing, the accused extended life threats. His son Harvansha received serious injuries on his body. With the help of the villagers, Harvansha was brought to Bijnor. Looking to his critical condition, he was given medical treatment. As he was busy in his treatment, therefore, delay was caused in lodging the FIR (Exhibit Ka-15). After four days of the incident, he gave a Written Tehrir (Exhibit Ka-1), scribed by his grandson Dumpi bearing his thumb impression. He further stated that the Tehrir was written on 22.02.2008 but as he remained busy in the treatment of his only son, therefore, he modified the date of Written Tehrir from 22.02.2008 to 25.02.2008. His son died on 26.02.2008 due to the said injuries, while returning from Delhi. His son was given medical treatment at Meerut and Delhi. In the said marpeet, his son received injuries on his head caused with tabbal and danda. The danda injuries were caused on his hands, shoulders and waist, resultantly, his son fainted at the spot and could not regain his consciousness and finally succumbed to death. P.W.-2 Himanshu alias Dumpi: an eyewitness/the grandson of the first informant who scribed the Written Tehrir stated on oath that on the date of incident he was at his maternal grandfather’s (Nana) home where his maternal uncle Harvansha died due to the incident which took place on 21.02.2008 at 6:00 pm. The accused Dharampal, Somvati and Kapil came to his maternal grandfather’s home, armed with lathi and danda. Dharampal was armed with tabbal and the rest two were armed with lathi and danda. The accused assaulted his maternal uncle with the said weapons who lost his consciousness and the blood was oozing out from his body. His maternal grandfather who was sleeping, reached thereafter at the spot. His maternal aunt was also present at the spot. Dharampal was armed with tabbal and the rest two were armed with lathi and danda. The accused assaulted his maternal uncle with the said weapons who lost his consciousness and the blood was oozing out from his body. His maternal grandfather who was sleeping, reached thereafter at the spot. His maternal aunt was also present at the spot. He did not remember as to who else were present there. His maternal uncle was taken to the Hospital where he died during treatment due to the said injuries. He stated that Written Tehrir (Exhibit Ka-1) was scribed by him and his maternal grandfather had put the thumb impression. The said report bears his signature as well. P.W-3 Sanjay Kumar Shankar: the consultant pathologist stated on oath that on 26.02.2008 at 4:30 pm, he conducted the post mortem of the deceased Harvansha whose body was brought in a sealed cover by Constable Jabbar Singh and Home Guard Rajpal. The seal was checked and was found in order. The details of the post mortem report is as follows: External Examination The deceased was about 32 years old and was of normal height and physique. There was rigour mortis present over upper extremity. This was happening in the lower part from the beginning. There was a rice tube in the nose. The urine tube was also lying there. Three jelly pads were fitted and there was a vein flow on the left wrist. Anti Mortem Injuries (i) Stitched wound (one stitch) of 1 cm back of left skull and 5 cm from left Ear. (ii). Stitched wound (two stitches) of 3.5 cm on the right skull and 6 cm from Ear. (iii). Contusion 2 x 1 cm on Right arm and 2.5 cm below shoulder. On dissection of the head, the parietal bone on right side was broken and there was only 120 gms of Haematoma in the cavity. The heart was empty on the left side. The straight side was full. The teeth were 16/16. The stomach mucosa was normal. The stomach was empty. The gall bladder was full. The weight of the pancreas liver was 1200 gms. The weight of both the kidneys was 200 gms. Death was possible about half a day back. The cause of death was coma as a result of ante mortem injuries and the patient was given first aid before post mortem. The stomach was empty. The gall bladder was full. The weight of the pancreas liver was 1200 gms. The weight of both the kidneys was 200 gms. Death was possible about half a day back. The cause of death was coma as a result of ante mortem injuries and the patient was given first aid before post mortem. He prepared the post mortem report (Exhibit Ka-2) at the time of inspection, which was present in his hand writing and was kept on the file. P.W.-4 Smt Rajo: the sister of the deceased Harvansha and an eyewitness of the incident stated on oath that she knew the accused Dharampal, his son Kapil and his wife Somo alias Somvati. About 2 years back at around 6:00 pm, her brother Harvansha was beaten by the accused Somo alias Somvati, Dharampal and Kapil. The marpeet took place in her house and she was an eyewitness account. Several villagers gathered at the time of incident who saved Harvansha. Her brother died due to the injury caused by the accused. P.W-5 Mohan Lal Yadav: prepared the inquest report of the deceased Harvansha on 26.02.2008. He stated on oath that the information regarding the death of Harvansha was given by Subhash Chand. After receiving the information, he along with Constable Jabar Singh and Home Guard Rajpal Singh proceeded to District Hospital Bijnor along with the necessary documents. He appointed the five Panchas before preparing the inquest report and relevant records. The relevant records i.e. Inquest Report, Challan Lash, Chitthi RI, Chitthi CMO, Photo Lash were in his hand writing and were prepared at the time of inquest which were proved by him as Exhibit Ka-3. He sealed the dead body and handed over to Constable Jabar Singh and Home Guard Rajpal Singh. P.W.-6 Constable Jabar Singh: took the dead body for post mortem in a sealed condition. After the post mortem, the dead body was handed over to the family members. P.W.-7 Dr. R.S. Ravidas: examined the injuries of Harvansha on the date of incident. He stated on oath that on 21.02.2008, he was posted at Sadar Hospital, Bijnor and he medically examined the injuries of Harvansha (Exhibit Ka-9). The said witness proved the medical report (Exhibit Ka-9) and stated that injured Harvansha was brought by his father Ram Singh. P.W.-7 Dr. R.S. Ravidas: examined the injuries of Harvansha on the date of incident. He stated on oath that on 21.02.2008, he was posted at Sadar Hospital, Bijnor and he medically examined the injuries of Harvansha (Exhibit Ka-9). The said witness proved the medical report (Exhibit Ka-9) and stated that injured Harvansha was brought by his father Ram Singh. At the time of medical examination, he found following injuries on the body of deceased Harvansha: (i) Injury No.1 : Lacerated wound, 1x 0.5 cm x scalp deep on left side back of skull 5 cm behind from left ear. Surrounded with swelling in an area of 3 cm x 2 cm. (ii) Injury No.2 : The incised wound was 3.5 cm x 0.5 cm x bone deep, on the right side of the skull, 6 cm away from right ear. (iii) Injury No.3 : A red contusion 2 cm x 1 cm on the right upper arm 12½ cm below top of shoulder. In his opinion, the Injury Nos. 1 and 3 were caused by blunt and hard object while Injury No. 2 was caused by some sharp edged object. Injuries Nos. 1 and 2 were kept under observation. An X-ray of skull was advised. Injury no. 3 was simple. All the injuries were fresh. The patient was admitted and referred to the Surgeon. He further deposed that the patient’s injury nos. 1 and 3 were caused by danda and sticks and Injury No. 2 was caused by tabbal at 6:00 pm on 21.02.2008. Injuries No. 1 and 2 were on the head which was a vital part of the body. This witness further stated that the medical report was in his hand writing and was prepared at the time of examination and the original medical register was in front of him which he had brought. The photocopy of it was on the file which he matched with the Register and was correct as per the original records. So, he authenticated it. Thus, the medical report dated 21.02.2008 (photocopy) was proved by this witness as Exhibit Ka-9. P.W.-8 S.I. Ghanshyam Singh Tyagi: the Investigating Officer stated on oath that on 26.02.2008, after the registration of the FIR, he was entrusted with the investigation. On the same date, he inspected the spot. So, he authenticated it. Thus, the medical report dated 21.02.2008 (photocopy) was proved by this witness as Exhibit Ka-9. P.W.-8 S.I. Ghanshyam Singh Tyagi: the Investigating Officer stated on oath that on 26.02.2008, after the registration of the FIR, he was entrusted with the investigation. On the same date, he inspected the spot. On the pointing of the first informant, he prepared the site plan which was in his handwriting and was exhibited as Exhibit Ka-8. On 27.02.2008, he recorded the statement of witnesses Ram Prasad, Rajesh and Subhash. He perused the medical examination report and entered them in the Case Diary and added Section 304 IPC on the basis of the post mortem report (Exhibit Ka-2). On 28.02.2008, he arrested Dharampal at 12:30 pm at Bhankhala Road Tiraha who in his confessional statement, disclosed that on 21.02.2009, at around 6:00 pm, he quarrelled with Harvansha for the tap water. Harvansha lifted and threw him on the ground, so he rushed to his sister’s house and brought a tabbal with which he assaulted Harvansha. He even assured to get the tabbal recovered. Relying on his statement on 28.02.2008, the Constable Udai Veer Singh and Suresh Singh went on the Government Vehicle driven by Raghuveer Singh and reached at his sister’s residence. The accused Dharampal went straight to the roof top of the house and took out a tabbal hidden under the heap of eucalyptus logs. He disclosed that he assaulted Harvansha with this tabbal. The tabbal was sealed on the spot, the recovery memo was prepared and a site plan of the recovery was also prepared. The said recovery memo was signed by the police officers and the copy was handed over to the accused and the thumb impression was also taken. The recovery memo was prepared in his hand writing which he proved it as Exhibit Ka-11. The said recovery was entered in the G.D. as G.D. Rapat No.22 at 14:50 dated 28.02.2008, which was marked as Exhibit Ka-12. The said GD was in his hand writing and was prepared at the spot. The site plan of the place of recovery was prepared as Exhibit Ka-13, which was in his hand writing. Thereafter, the rest two accused were arrested and the statements were recorded. The said GD was in his hand writing and was prepared at the spot. The site plan of the place of recovery was prepared as Exhibit Ka-13, which was in his hand writing. Thereafter, the rest two accused were arrested and the statements were recorded. After completing the investigation, the accused Dharampal, wife Sonu @ Somvati were charge sheeted vide charge sheet No. 22 dated 09.03.2008 which was marked as Exhibit Ka-14. On the same date, charge sheet No.22-A was submitted against the co-accused Kapil. The said witness stated that the sealed cover opened before him was the recovered tabbal. It was the same tabbal which was recovered on 28.02.2008 at the pointing of the accused Dharampal from his sister’s house at the rooftop hidden under the heap of eucalyptus logs. The recovered tabbal was marked as Exhibit -2 and the sealed cloth was marked as Exhibit-1. P.W.-9 Constable Onkar Singh: prepared the Chik FIR and stated on oath that he registered the FIR on the basis of the Written Tehrir (Exhibit Ka-1) given by P.W.-1 Ram Singh and made necessary entries in the General Diary. The said witness proved the First Information Report under Sections 452, 323, 504, 506, 308 IPC which was registered by him and whose carbon copy was kept under the record. This witness proved the FIR (Exhibit Ka-15) and Kaymi Muqadma GD (Exhibit Ka-26) were proved by him. He also proved the GD (Exhibit Ka-27) on 27.02.2008, vide Rapat No. 29, Section 304 IPC was added which were in his handwriting and was proved by him. P.W-10 Subhash Chandra: the brother-in-law of the deceased gave an application at the Police Station for conducting the post mortem of Harvansha. He stated on oath that the application dated 26.02.2008 placed on record having his signature was in his own handwriting and was marked as Exhibit Ka-8. He also stated that his brother-in-law was beaten on 21.02.2008 at 6:00 pm and due to the said injuries, he died. STATEMENT UNDER SECTION 313 Cr.P.C. 8. After the prosecution evidence was recorded, the incriminating circumstances that appeared against the appellant in the prosecution evidence were put to him for recording his statement under Section 313 Cr.P.C. The appellant in his statement recorded under Section 313 Cr.P.C. denied the prosecution case and stated that he was falsely implicated on the basis of false evidence. After the prosecution evidence was recorded, the incriminating circumstances that appeared against the appellant in the prosecution evidence were put to him for recording his statement under Section 313 Cr.P.C. The appellant in his statement recorded under Section 313 Cr.P.C. denied the prosecution case and stated that he was falsely implicated on the basis of false evidence. In fact, a person named Akbar committed the offence. No defence witness was produced. TRIAL COURT FINDINGS 9. The Trial Court recorded the following findings: There was no material contradiction in the statement of the eyewitnesses. Even in the cross-examination, no contradiction or inconsistencies were found in regard to the place and manner of incident. All the three witnesses of fact were extensively cross-examined, their presence at the place of incident was not found doubtful. The Trial Court also found that the medical report corroborated with the ocular evidence. The medical examination report dated 21.02.2008 was proved by P.W.-7 Dr. R.S. Ravidas. The said witness found that Injury Nos. 1 and 3 were caused with a blunt weapon and Injury No. 2 was caused by some sharp edged weapon. The seat of Injury Nos. 1 and 3 was the head and the Injury No. 2 was on the shoulder. P.W.-1, in his statement, disclosed that deceased Harvansha received injuries on the head and shoulder. The rest two eyewitnesses disclosed that the deceased Harvansha was assaulted on his head with tabbal and Danda which corroborated with the medical report. The learned Trial Court also found that the weapon (tabbal) used in the incident was recovered at the pointing of the appellant Dharampal. All the relevant records, post mortem and inquest reports were duly proved by the prosecution witnesses, therefore, the offence was proved to be committed by the appellant beyond reasonable doubt. As far as delay in the lodging of the FIR is concerned, the learned Trial Court found that there was no discrepancy in the narration of facts and it was explained by the first informant Ram Singh that as he was busy in the treatment of his only son, therefore, delay was caused in lodging the FIR which was reasonably and satisfactorily explained. The prosecution case cannot be refuted on the ground that no suggestion was given to the said witnesses. The accused, in his statement, under Section 313 Cr.P.C. did not state that there was any enmity between them. The prosecution case cannot be refuted on the ground that no suggestion was given to the said witnesses. The accused, in his statement, under Section 313 Cr.P.C. did not state that there was any enmity between them. Therefore, it cannot be concluded that there was any previous enmity existing between them. SUBMISSION ON BEHALF OF THE APPELLANT 10. The learned Amicus Curiae Ms. Mayuri Mehrotra, appearing for the appellant vehemently argued as follows: (i) Firstly, it was argued that there was delay in lodging of the FIR and was lodged after deliberation and consultation. Broadly, it was submitted that the three witnesses of fact (PW-1, PW-2 and PW-4) stated that though the police reached at the spot on the same day yet no FIR was lodged. PW-2 Dumpi went to the extent of stating that he went along with his grandfather PW-1 and his injured uncle Harvansha (deceased) to the Police Station, yet no attempt was made to lodge an FIR by either of them. It was asserted that there were two instances of lodging the FIR, in case they were the eyewitnesses to the incident and knew the names of the accused-appellant, they would have lodged it at once. Till that time, they did not know as to how this offence was committed and who committed it, therefore, none of the prosecution witnesses made an effort to lodge an FIR and had not even witnessed the incident. The FIR was lodged after consultation and deliberation. (ii) Secondly, it was argued that the place of occurrence was doubtful. The prosecution witnesses deposed that the place of occurrence was the room of the deceased, but during investigation no blood was found. The Investigating Officer, S.I. Ghanshyam Tyagi, PW-8 did not find any drop of blood on the floor, neither on the cot nor on the bed roll or quilt though it was deposed by PW-1 Ram Singh that he found his son in a pool of blood lying on the cot, when he reached at the spot. (iii) It was next argued that PW-1 Ram Singh, PW-2 Himanshu alias Dumpi and PW-4 Rajo were examined as eyewitnesses. But in the charge sheet only PW-1 Ram Singh was the sole eyewitness. Had PW-2 and PW-4 been present at the place of the incident they would have been incorporated as eyewitnesses in the charge sheet? (iii) It was next argued that PW-1 Ram Singh, PW-2 Himanshu alias Dumpi and PW-4 Rajo were examined as eyewitnesses. But in the charge sheet only PW-1 Ram Singh was the sole eyewitness. Had PW-2 and PW-4 been present at the place of the incident they would have been incorporated as eyewitnesses in the charge sheet? Moreover, PW-8, the Investigating Officer categorically stated that neither PW-2 nor PW-4 gave any statement nor did he record their statements during investigation which casts serious doubt on the presence of P.W.- 2 and P.W.-4 at the spot. (iv) It was further argued that there were major contradictions in the statements of the three eyewitnesses, which are as follows: (a) PW-1 Ram Singh was the father of the deceased and in his testimony, he made major improvements as compared to what he asserted in the FIR. He stated that he was sleeping when he heard the noise then he came out of his room and thereafter he along with the villagers saved his son from the accused appellants. He further improved his statement to show the presence of PW-2 and PW-4 that they also saved the deceased from the accused-appellant as opposed to the version of the FIR. The FIR nowhere mentions the name of the two witnesses that they were also present at the place of the incident. Further, PW-1 stated that he had a poor vision. The incident occurred in the month of February at 06:00 P.M. It becomes dusky and, therefore, it also casts doubt if he was able to recognise the assailants due to his poor eyesight. PW-1 thereafter stated that his son Harvansha fell unconscious due to the injuries inflicted upon him and later succumbed to death. The question arises here if PW-1 was sleeping at the time of incident and reached only after hearing the commotion and then his son became unconscious, who later died, how did he come to know about the incident as to how it occurred and who were the assailants? It is the version of PW-1 that when he woke up and saw many persons near his son who also saved him. It casts serious doubt on the testimony of PW-1 and his intention to falsely implicate the accused-appellant. It is the version of PW-1 that when he woke up and saw many persons near his son who also saved him. It casts serious doubt on the testimony of PW-1 and his intention to falsely implicate the accused-appellant. (b) The presence of PW-2 Himanshu alias Dumpi was not proved on the date and time of the incident but as per his statement recorded before the Court below the injured was taken to the hospital immediately after the incident by PW-1 and PW-2. P.W.-2 further admitted that taking notice of the said incident the police personnel reached at the spot between 07:30 and 08:00 PM. The witness further stated that the injured along with this witness was taken to the Police Station by the Police where FIR was lodged. The said version of the PW-2 contradicts the statement of PW-1 and the FIR because it was lodged on 25th/26th February, 2008 and the incident was of 21st February 2008. (c) Another contradiction discussed was that P.W.2 Himanshu @ Dumpi was sleeping at the time of incident next to his maternal grandfather (nana) and on hearing the noise, he reached at the spot. (d) Further, P.W.2 Himanshu @ Dumpi in his deposition stated that the accused Dharampal was armed with tabbal and the rest accused were armed with lathi and danda, who assaulted his maternal uncle Harvansha causing injuries on his head and body. P.W.3 Smt. Rajo, in her chief, stated that the accused Dharampal, his wife Somo and his son Kapil assaulted her brother Harvansha with lathi, danda and weapons. (v) As far as testimony of PW-2 Himanshu alias Dumpi is concerned, it was argued by learned Amicus Curiae that he was a child witness, therefore, his credibility was doubtful as an eyewitness. The name Dumpi nowhere finds mention in the FIR as a witness nor in the charge-sheet. In his examination-in-chief, PW-2 stated that he was sleeping with his grandfather (PW-1) and after hearing the noise, he woke up. He admitted that his grandfather (PW1) reached the place of occurrence after him. However, in his cross-examination, he took a different stand and stated that he was playing near the disputed tap. He heard the noise, then he entered into his house, woke up everyone and called everyone in the house and then he witnessed the incident. He admitted that his grandfather (PW1) reached the place of occurrence after him. However, in his cross-examination, he took a different stand and stated that he was playing near the disputed tap. He heard the noise, then he entered into his house, woke up everyone and called everyone in the house and then he witnessed the incident. There were three injuries found on the person of the deceased and as per the prosecution version there were three assailants, so far how long were they hitting and beating the deceased that PW-2 got so much time to enter, call everyone and even witness the incident. It was submitted that he was not an eyewitness to the occurrence. (vi) PW-4 Smt. Rajo, the mother of PW-2, daughter of PW-1 and sister of the deceased stated that she saw her brother (the deceased) in a pool of blood who fell unconscious for three to four hours. She even gave exaggerated statement and said that the Police came to the place of occurrence and took her thumb impression. However, no such paper was produced as to what was the purpose of thumb impression if at all they were taken. She was neither named in the FIR as a witness nor in the charge-sheet. (vii) In regard to recovery of tabbal, it was argued by learned Amicus Curiae for the appellant that Dharampal did not give any statement in police custody that weapon (tabbal) used in the incident was kept hidden in the house of his sister Vinod Kumari nor any such recovery was effected. It was also submitted that no independent witness was present at the time of recovery nor any blood stain was found on the tabbal, which was recovered at the pointing out of the accused-appellant Dharampal. The said recovery was not done in compliance with Section 27 of the Indian Evidence Act. The recovered weapon was not sent for examination to the Forensic Science Laboratory. Thus, it was not proved that the said weapon was used by Dharampal. Thus, it was argued by the learned Amicus Curiae that the contradictions in the statement of the witnesses proved that none of the eyewitnesses were present at the spot nor had seen the incident. The recovered weapon was not sent for examination to the Forensic Science Laboratory. Thus, it was not proved that the said weapon was used by Dharampal. Thus, it was argued by the learned Amicus Curiae that the contradictions in the statement of the witnesses proved that none of the eyewitnesses were present at the spot nor had seen the incident. It is also a case of the prosecution that the incident took place at the sunset and PW-1 Ram Singh had poor eye vision hence there is every likelihood that the informant had falsely implicated the accused persons due to previous enmity. On the basis of the aforesaid submissions, the appellant is liable to be acquitted. SUBMISSION ON BEHALF OF THE RESPONDENT-STATE 11. Per contra, Mr. Ratnesh Nandan Singh, learned Additional Government Advocate, vehemently opposed the aforesaid contentions and argued that the findings recorded by the Trial Court is quite convincing and satisfactory. (i) As far as delay in lodging of the FIR is concerned, the first informant disclosed in the FIR itself that he was too busy in the treatment of his only son whose condition was critical, therefore, he could not lodge the FIR in time. In his examination-in-chief he also deposed that a written Tehrir was scribed on 22.02.2008 by his grandson Dumpi P.W.2, but as he was busy in the treatment of his only son, therefore, he modified the date of the Tehrir as 25.02.2008 and then gave it at the police station, on the basis of which the FIR was registered on 26.02.2008. The incident took place on 21.02.2008 at about 06:00 P.M. and the written report (Exhibit Ka-1) was given on 25.02.2008. The FIR (Ex. Ka. 15) was lodged on 26.02.2008 at 12:10 AM. As per the version of PW-1, he took the injured from Bijnor to Meerut and then to Delhi for his treatment. His son remained unconscious throughout and later died while returning from Delhi on 26.02.2008. It is only after his death that he lodged an FIR. In the cross-examination, the said witness deposed that, after the incident, he went to the Police Station alongwith his injured son Harvansha. The concerned Police Officer advised him that he should first rush for the treatment of his son, therefore, the FIR was not lodged at that very moment. It is only after his death that he lodged an FIR. In the cross-examination, the said witness deposed that, after the incident, he went to the Police Station alongwith his injured son Harvansha. The concerned Police Officer advised him that he should first rush for the treatment of his son, therefore, the FIR was not lodged at that very moment. Even from the medical examination report (Exhibit Ka-9), it clearly shows that Harvansha was medically examined within two hours from the time of the incident on 21.02.2008 at District Hospital, Bijnor at 9:00 pm. Thereafter his son was referred to Meerut Hospital and then to Delhi. Finally while returning from Delhi, his son died on 26.02.2008. (ii) Another contention of the defence that no blood stained earth was found at the spot is also false and baseless. P.W.1 Ram Singh deposed that when he came out of his room and reached the spot he saw his son lying on a cot in a pool of blood. P.W.2 Himanshu @ Dumpi also deposed that at the time of marpeet, the blood was oozing out from the head of Harvansha which fell on the ground. The Investigating Officer should have recovered the blood stained earth from the spot but as in the instant matter, the FIR was lodged after 3-4 days of the incident i.e. 26.02.2008 and thereafter, the Investigating Officer went to the spot for inspection where no blood stained earth was found. Though P.W.-8 S.I. Ghanshyam Tyagi, Investigating Officer deposed that he inspected the spot at the instance of the first informant but still he could not collect any blood stained earth indicates the lapses on the part of the Investigating Agency. The eyewitness account P.W.1 Ram Singh, P.W.2 Himanshu @ Dumpi and P.W.4 Smt. Rajo clearly deposed that the accused Dharampal and other co-accused entered into their premises and assaulted Harvansha with tabbal, lathi and danda due to said marpeet, Harvansha fainted and finally succumbed to death due to the said injuries. (iii) The next contention of the defence that P.W.2 and P.W.4 were not mentioned as a witnesses in the charge sheet but were subsequently produced and examined as prosecution witnesses is also a baseless submission and does not belies the prosecution story as P.W.1 in his examination-in-chief deposed that P.W.2 and P.W.4 were present at the spot. (iii) The next contention of the defence that P.W.2 and P.W.4 were not mentioned as a witnesses in the charge sheet but were subsequently produced and examined as prosecution witnesses is also a baseless submission and does not belies the prosecution story as P.W.1 in his examination-in-chief deposed that P.W.2 and P.W.4 were present at the spot. Even if they were not mentioned in the FIR or in the charge sheet as eyewitnesses but were examined subsequently as prosecution witnesses, will not support the defence version or disproof the prosecution case. An FIR is not an encyclopedia which may include each and every detail of the incident. It is also not sine qua non that each and every witness has to be mentioned in the charge sheet. There is no hard-and-fast rule that all the witnesses particularly eyewitnesses should be indicated in the FIR. It cannot be denied that the incident took place inside the premises of P.W.1 Ram Singh, therefore, the presence of the said witnesses (P.W.2 and P.W.4) at the spot, is not doubtful and they are the natural witnesses. The accused Dharampal could not produce any credible evidence which may deny the presence of P.W.1 Ram Singh at the spot. (iv) So far as contradictions and discrepancies in the statement of the witnesses are concerned, the defence version that P.W.1 Ram Singh reached the spot after some time and was not an eyewitness account and P.W.2 Himanshu @ Dumpi and P.W.4 Smt. Rajo were also not present at the spot as they were the resident of another village is not correct. In fact, P.W.1 Ram Singh in his chief stated that on hearing the noise he reached the spot and saw the accused assaulting his son. Several villagers Raju, Abid and others also gathered along with his daughter Smt. Rajo and grandson Himanshu @ Dumpi. From the said statement, it can be concluded that P.W.2 Himanshu @ Dumpi, P.W.4 Smt. Rajo were present at the spot and witnessed the incident. In his cross-examination, the said witness deposed that on the previous night, he was tired so he went to sleep in the early hours of evening wrapped in his quilt and on hearing the noise of his son Harvansha, he rushed towards the spot. In his cross-examination, the said witness deposed that on the previous night, he was tired so he went to sleep in the early hours of evening wrapped in his quilt and on hearing the noise of his son Harvansha, he rushed towards the spot. P.W.2 Himanshu @ Dumpi in his examination-in-chief also deposed that at the time of incident, he stood near the Government tap to fetch water, in the meantime, accused Dharampal alongwith other co-accused assaulted Harvansha. On hearing the noise, he rushed to the spot and saw the incident and shouted thereafter his maternal grandfather (nana) P.W.1 Ram Singh also reached at the spot simultaneously, P.W.4 Smt. Rajo also reached the spot and saw the incident. Learned State-counsel in his submission also stated that the ocular evidence corroborates with the medical evidence. P.W.7 Dr. R.S. Ravidas deposed that there were three injuries on the body of Harvansha out of which two were on his head and one on his right shoulder. The said witness also deposed that injury nos. 1 and 3 were caused with some blunt weapon and injury no. 2 was caused with some sharp edged weapon. The eyewitnesses deposed that accused Dharampal was armed with tabbal which is a sharp edged weapon and rest of the accused Smt. Somo and Kapil were armed with lathi and danda and assaulted Harvansha. Thus, there were no major contradiction in the prosecution case. (v) The arguments of learned Amicus Curiae that P.W.2 Dumpi was a child witness, therefore, his testimony was not trustworthy, was refuted. To controvert their submission, the learned State-counsel cited the following case laws: In Gul Singh @ Guliya and others vs. State of M.P. and another, 2014 SCC Online SC 719, the Apex Court held that: “The evidence of child witness cannot be rejected unless the same is tutored or unless the same is unreliable.” In State of Uttar Pradesh vs. Krishna Master and others, (2010) 12 SCC 324 , wherein it was held that: “It would be doing injustice to a child witness possessing a sharp memory to say that it is inconceivable for him to recapitulate facts in his memory witnessed by him long ago. A child of tender age is always receptive to abnormal events which take place in his life and would never forget those events for the rest of his life. A child of tender age is always receptive to abnormal events which take place in his life and would never forget those events for the rest of his life. The child would be able to recapitulate correctly and exactly when asked about the same in future. When a child of tender age witnesses gruesome murder of his father, mother, brothers, etc. he is not likely to forget the incident for his whole life and would certainly recapitulate facts in his memory when asked about the same at any point of time, notwithstanding the gap of about ten years between the incident and recording of his evidence.” (vi) It was further submitted by the appellant-counsel that P.W. 4 Smt. Rajo gave an exaggerated version of the prosecution case and is not trustworthy. It cannot be denied that P.W.4 Smt. Rajo was an eyewitness account and gave her testimony as a natural witness. She was a rustic lady who used to put thumb impression therefore, such improvements and exaggerations might find possibility. (vii) Learned State Counsel referred to the statement of the P.W.8 S.I. Ghanshyam Singh Tyagi, Investigating Officer, who deposed that on 28.02.2008 accused Dharampal was arrested and was taken into police custody. During police custody, he confessed that the weapon used in the incident was kept hidden as his sister’s house Vinod Kumari. On the basis of this confessional statement, Dharampal was taken to that place and on the pointing of accused Dharampal, he took out tabbal, hidden under the heap of eucalyptus logs on the roof-top of the house of his sister Vinod Kumari on the basis of which recovery memo was prepared which was proved as Exhibit Ka-1. It was also deposed that an effort was made to have independent witnesses but no one agreed. Thus, the recovery of tabbal on the pointing of accused appellant Dharampal was proved. ANALYSIS 12. Having heard the learned counsel appearing for the parties and after carefully going through the material on record and the case laws cited, this Court is of the view that it can be safely concluded that the delay in lodging the FIR was properly explained by the prosecution. The reasons given by the first informant were genuine and satisfactory. Having heard the learned counsel appearing for the parties and after carefully going through the material on record and the case laws cited, this Court is of the view that it can be safely concluded that the delay in lodging the FIR was properly explained by the prosecution. The reasons given by the first informant were genuine and satisfactory. The first informant Ram Singh was consistent in stating that as the condition of his only son Harvansha was critical, therefore, he was busy in his medical treatment, which caused delay in lodging the FIR. In a recent judgment in Gulab vs. State of Uttar Pradesh (2024) 1 SCC (Criminal) 609 para-29, the Hon’ble Apex Court has held that: “The delay in lodging FIR is not material, when prosecution case is supported by reliable eyewitnesses.” The incident took place within the premises of the first informant Ram Singh. It transpires from the site plan that the living room of the first informant was situate at the east of Haveli. In front of the said living room, the incident of marpeet took place which was at a distance of only 30 feet. The distance from the Government tap to the place of incident was about 25 feet. As the incident of marpeet took place within the premises of the first informant, therefore, the incident was clearly and easily witnessed by the three eyewitnesses. As soon as P.W.-1 Ram Singh heard the noise of his son, he at once arose and rushed to the spot. The truthfulness of this witness could be judged from the fact that he deposed that as he was too tired on the previous night, therefore, he slept during evening hours wrapped in his quilt, therefore, it can be safely concluded that he was a reliable eyewitness. P.W.2 Himanshu @ Dumpi in his evidence stated that he was present at the Government Tap to fetch water when Harvansha was being assaulted by accused Dharampal and others. After hearing the noise he reached the spot and saw the incident and screamed. Thereafter his maternal grandfather (Ram Singh P.W.1) also reached the spot and saw the incident and thereafter P.W.4 Smt. Rajo also reached the spot and witnessed the incident. After hearing the noise he reached the spot and saw the incident and screamed. Thereafter his maternal grandfather (Ram Singh P.W.1) also reached the spot and saw the incident and thereafter P.W.4 Smt. Rajo also reached the spot and witnessed the incident. Though certain minor contradictions and discrepancies have been noticed in the deposition of eyewitnesses but they can be ignored as they are merely marginal variations and will not belie the prosecution case entirely. Due to these minor contradictions and discrepancies as to who reached first at the spot etc. cannot doubt their presence at the spot. P.W.1 Ram Singh in his deposition clearly stated that accused appellant Dharampal was armed with tabbal, Smt. Somo was armed with lathi and Kapil was armed with danda. The same version was given by P.W.2 Dumpi. Though, P.W.4 Smt. Rajo in her deposition stated that Dharampal, Somo and Kapil were armed with lathi, danda and weapons but as she did not use the term “tabbal” in her statement, this does not doubts her presence at the spot. She was a rustic villager, therefore, such minor contradictions and discrepancies are not of such a nature that it would hit the root of prosecution case. Recently, the Hon’ble Apex Court in Birbal Nath vs. State of Rajasthan and others, 2023 SCC Online SC 1396, has held that: “No doubt statement given before Police during investigation under Section 161 Cr.P.C. are previous statements under Section 145 of the Evidence Act and therefore, can be used to cross-examine a witness. But this is only for a limited purpose, to contradict such a witness. Even if the defence is successful in contradicting a witness it would not always mean that the contradictions in her two statements would result in totally discrediting the witness.” (Emphasis supplied) The Apex Court after considering a large number of its earlier judgments has held in State of U.P. vs. Naresh, (2011) 4 SCC 324 , that: “In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence. Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility. Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution’s case, render the testimony of the witness liable to be discredited.” The Apex Court took a similar view in Appabhai and another vs. State of Gurajat, 1988 (Supp) SCC 241, that: “A witness though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him -perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment. The Court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The Court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The Court must evaluate the entire material on record by excluding the exaggerated version given by any witness when a doubt arises in respect of certain facts alleged by such witness, the proper course is too ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses may go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the Court. The Courts, however, should not believe the evidence of such witnesses or together if they are otherwise trustworthy.” A similar view has been reiterated by this Court in Tehsilar Singh and Another vs. State of U.P. AIR 1959 SC 1012 . It could also be safely concluded that the ocular evidence corroborated with the medical evidence. The statement of the doctor P.W.7 Dr. R.S. Ravidas who medically examined Harvansha as well as by the evidence of P.W.3 Dr. Sanjay Kumar Shankar, who conducted the post mortem and opined that injury nos.1 and 3 could have been caused with a blunt weapon and injury no. 2 with some sharp edged weapon. As far as non mentioning of the name of the witnesses in the FIR and charge sheet is concerned, it is a settled law that an FIR is not an encyclopedia, which may contain each and every fact in detail nor it is mandatory to mention the name of every witness in the charge sheet. As there was no previous enmity between P.W.2 and P.W.4 with the accused appellant, therefore, there was no occasion to falsely implicate him. The submission that the presence of P.W.2 and P.W.4 was doubtful at the place of incident on the ground as they have been planted as a witness being the close relatives is unbelievable. P.W.1 in his statement deposed that P.W.2 and P.W.4 were present on the spot and therefore, they were natural witnesses and their presence cannot be doubted. P.W.2 Dumpi who is stated to be a child witness, was an eyewitness account. P.W.1 in his statement deposed that P.W.2 and P.W.4 were present on the spot and therefore, they were natural witnesses and their presence cannot be doubted. P.W.2 Dumpi who is stated to be a child witness, was an eyewitness account. His version is truthful and believable and inspires confidence. The Apex Court has considered the evidence of child/young witness in Yogesh Singh vs. Mahabeer Singh and others, (2017) 11 SCC 195 , which is reproduced as under: “It is well settled that evidence of a child witness must find adequate corroboration, before it is relied upon, as the rule of corroboration is of practical wisdom rather than of law. However, it is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable. The law is that evidence of a child must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others telling and thus a child witness is an easy prey to tutoring.” So far as non recovery of blood stained earth on the spot is concerned, P.W.1 Ram Singh clearly deposed that when he came out of his room, his son was lying on a cot, soaked in blood. P.W.2 deposed that he saw the blood oozing from the head of his maternal uncle which even fell on the ground. As the delay was caused in lodging the FIR, therefore, by the time the Investigating Officer reached the spot, the blood stained earth was not available. This seems the lapse on the part of the Investigating Agency which cannot be a ground to discard the prosecution version which is authentic and credible and this benefit cannot be extended to the accused persons. The recovery of tabbal at the pointing of accused appellant which was used in the commission of offence was proved. The Investigating Officer S.I. Ghanshyam Singh Tyagi deposed that he arrested the accused Dharampal on 28.02.2008 and while being in police custody he confessed that the tabbal used in the incident was kept hidden on the roof top of the house of the sister Vinod Kumari under the heap of eucalyptus logs. An effort was made to collect evidence of an independent witness but no one came forward, so the Police Official were made witness to the recovery memo. An effort was made to collect evidence of an independent witness but no one came forward, so the Police Official were made witness to the recovery memo. Looking to the confessional statement of the accused appellant Dharampal, it is clear that he disclosed that he committed the offence by using tabbal which was recovered at his pointing from the roof top of the house of his sister Vinod Kumari, kept hidden under the heap of eucalyptus logs. The said recovery of tabbal corroborates with his confessional statement and satisfies the test of section 27 of the Indian Evidence Act. The Hon’ble Apex Court in Perumal Raja @ Perumal vs. State, represented by Inspector of Police, 2024 SCC Online SC 12, held that : “…. The discovery of a fact resulting in recovery of a physical object exhibits knowledge or mental awareness of the person accused of the offence as to the existence to the physical object at the particular place. Accordingly, discovery of a fact includes the object found, the place from which it was produced and the knowledge of accused as to its existence. To this extent, therefore, the factum of discovery combines both the physical object as well as the mental consciousness of the accused in relation thereto.” P.W.9 Constable Onkar Singh has proved the FIR and G.D. Entry. P.W.10 Subhash Chandra proved that application which he gave on 26.02.2008 for conducting post mortem of the deceased Harvansha. P.W.5 S.I. Mohan Lal Yadav proved the relevant records relating to inquest report and post mortem report. P.W.6 Constable Zabbar Singh proved that he took the dead body for post mortem and thereafter, handed it to the family members of the deceased. P.W.8 S.I. Ghanshyam Singh Tyagi has proved the site plan and charge sheet. In view of the above, the Court is convinced with the findings on the guilt of the accused by the Trial Court. The Court is also of the considered view that the prosecution has proved its case beyond all reasonable doubt. P.W.8 S.I. Ghanshyam Singh Tyagi has proved the site plan and charge sheet. In view of the above, the Court is convinced with the findings on the guilt of the accused by the Trial Court. The Court is also of the considered view that the prosecution has proved its case beyond all reasonable doubt. It can be rightly concluded that that accused appellant alongwith other co-accused entered into the premises of the first informant and caused injuries on the vital part of the body of Harvansha by using the weapons tabbal, lathi and danda which in all probability, would have caused death and resultantly, Harvansha died due to said injuries which comes under the category of culpable homicide not amounting to murder. Thus, looking at the nature of injuries and the manner of assault established by the prosecution evidence and discussion above, Section 304 IPC has clear application. The Court has no difficulty in affirming the conviction of the appellant. CONCLUSION 13. The learned Trial Court has rightly convicted the accused appellant Dharampal under Sections 452, 304/34 IPC. The judgement and order of conviction and sentence dated 03.07.2010 awarding ten years rigorous imprisonment under section 304/34 IPC and fine of Rs.10,000/- and under section 452 IPC three years rigorous imprisonment and fine of Rs.3,000/- and in case of default of payment of fine, an additional simple imprisonment for three months is upheld. 14. Accordingly, the conviction and sentence of the appellant is hereby affirmed. 15. The ends of justice would be served, if the accused- appellant is sentenced with the period of imprisonment already undergone in prison. 16. The Custody Certificate dated 02.08.2023 issued by Central Prison, Bareilly reflects that the appellant Dharampal has been convicted in another case, i.e., Case Crime Nos. 31 and 34 of 2010, Sessions Trial No. 533, 534/2010 under Section 302 IPC and Section 25 Arms Act, Police Station Kotwali Dehat, District Bijnor whereby life imprisonment was awarded on 22.12.2010 by Additional Session Judge, Court No. 5, Bijnor and the conviction has been upheld by this High Court on 05.04.2018. 17. The appeal stands partly allowed. 18. The accused-appellant Dharampal shall be released forthwith from jail, if he is not wanted in any other case. 19. Office is directed to transmit a copy of this judgement to the learned Sessions Judge, Bijnor for compliance. 20. 17. The appeal stands partly allowed. 18. The accused-appellant Dharampal shall be released forthwith from jail, if he is not wanted in any other case. 19. Office is directed to transmit a copy of this judgement to the learned Sessions Judge, Bijnor for compliance. 20. Office is also directed to send back the record of the Trial Court immediately. 21. We record our appreciation for the able assistance rendered by the Amicus Curiae, who would be entitled to her fee as per the rules of the High Court Legal Services Committee.