2012 vs Unknown
2021 Latest Caselaw 372 UK

      IN THE HIGH COURT OF UTTARAKHAND
                       AT NAINITAL


  THE HON'BLE THE CHIEF JUSTICE SRI RAGHVENDRA SINGH CHAUHAN
                             AND
           THE HON'BLE SRI JUSTICE ALOK KUMAR VERMA


           CRIMINAL APPEAL NO.352 OF 2014

                   22ND FEBRUARY, 2021


Between:

Rakesh, S/o Bhoora, R/o Gali No.1,

Shivpur Colony Nai Basti Badayun,

near Chungi Gajram Singh School, Chandaus,

Moradabad (U.P.)                                  ....Appellant

and

State of Uttarakhand                           ......Respondent

Counsel for the appellant : Mr. R.S. Sammal, learned Advocate for the appellant.

Counsel for the respondent : Mr. J.S. Virk, learned Deputy Advocate General for the State.

The Court made the following :

JUDGMENT : (per Hon'ble Sri Justice Alok Kumar Verma)

This instant appeal has been filed by the

appellant-accused, against the judgment dated 29.09.2014

passed by the learned Ist Additional Sessions Judge,

Rishikesh, District Dehradun, in Sessions Trial No.77 of

2012, "State vs. Rakesh", by which the appellant has been

convicted for the offence punishable under Section 302 of

the Indian Penal Code, and has been sentenced to undergo

imprisonment for life along with a fine of Rs.10,000/- with

default imprisonment.

2. Briefly stated the prosecution story as it emerges

from re-appreciation of the evidence on record is that an

information was given by the informant Ramesh Kumar (PW-

1) to the In-charge Kotwali, Rishikesh, District Dehradun,

through his written information (Ex-Ka1) that one Vimla

Devi lived in his neighbourhood. The accused Rakesh was

residing in her house on rent. On 14.03.2012 at around

01:30 p.m., Km. Suman, daughter of the informant, was

grinding spice in her house. The accused Rakesh came there

and took her to his room saying he had to talk to her. After

a while, she screamed. When the informant along with his

wife, Smt. Laxmi (PW-2), and his daughter reached at the

spot on hearing the shout of Km. Suman, they noticed that

in his room, the accused inflicted a pole axe (Gandasa) blow

on her neck with intention to kill her. When his daughter,

Km. Suman, raised her right hand up in defence, the blow of

the pole axe (Gandasa) hit her right hand. In this incident,

her hand was cut and swinged. The accused threatened to

kill them, and fled from another door of his room with the

said pole axe (Gandasa). The injured, Km. Suman was taken

to the Government Hospital, Rishikesh, where her injuries

were examined by Dr. Harish Driwedi (PW-7). She was

referred to the Jolly Grant Hospital due to excessive blood

loss.

3. The First Information Report (Ex-Ka11) was

registered on 14.03.2012, at 15:20 hrs, by the Constable

Roshan Rana (PW-5) against the accused under Section 307

and Section 506 of IPC.

4. The injured Km. Suman died at around 04:40 p.m.

on 14.03.2012. The inquest proceedings and the Post-

Mortem Examination were conducted on 15.03.2012.

5. The investigation was started by the Sub-

Inspector Kundan Singh Rana (PW-8). On the identification

of the informant, he prepared a site plan (Ex-Ka20) of the

place of occurrence. He took simple and blood stained earth

and blood stained white bed-sheet (Ex-2) from the room of

the accused, and prepared its memo (Ex-Ka3) in the

presence of Ramesh Kumar (PW1). A pair of slippers

(Chappals) (Ex-4,5) of the deceased was taken by the Sub-

Inspector Kundan Singh Rana and prepared its memo (Ex-

Ka2). He was informed by the informant that his daughter

had died during her treatment in the Jolly Grant Hospital.

Therefore, the matter was converted into a case of murder.

6. The Inspector Ravindra Kumar (PW-9) was second

Investigation Officer, who took the charge of the

investigation from the Sub-Inspector Kundan Singh Rana on

15.03.2012. The accused was arrested at around 20:25 hrs,

on 15.03.2012, by the Sub-Inspector Pratap Singh Negi

(PW-4).

7. At around 23:20 hrs on 15.03.2012, an pole axe

(Gandasa) (Ex-13) was recovered from the bushes at the

instance of the accused. The said pole axe (Gandasa) was

recovered in the presence of the informant Ramesh Kumar

(PW-1), the witness Soti Ram (PW-3), the Sub-Inspector

Pratap Singh Negi (PW-4) and the Inspector Ravindra Kumar

(PW-9). The recovered pole axe (Gandasa) was sealed in a

cloth (Ex-12) and the recovery memo (Ex-Ka6) was

prepared by Ravindra Kumar (PW-9) at the spot of the

recovery. He prepared a site map of the place of recovery

(Ex-Ka21). At that time, there was blood on the shirt worn

by the accused. That shirt (Ex-15) was taken by the Police

and sealed it. A memo (Ex-Ka10) was prepared by Ravindra

Kumar (PW-9). The accused signed on it.

8. The recovered articles were sent to the Forensic

Science Laboratory, Uttarakhand, Dehradun through the

Chief Judicial Magistrate, Dehradun. These articles were

received by the Laboratory on 28.03.2012 in sealed bundles.

According to the report of the Forensic Science Laboratory

dated 24.04.2012 (Ex-Ka23), human blood was found on the

bed-sheet and slippers of the deceased. Human blood was

also found on the shirt of the accused, and on the pole axe

(Gandasa). After completion of the investigation, the

charge-sheet (Ex-Ka22) was submitted by the Inspector

Ravindra Kumar (PW-9) for the offences punishable under

Section 302 and Section 506 of IPC.

9. The case was committed to the Court of Session.

10. The charges under Section 302 and Section 506 of

IPC were framed. The accused pleaded not guilty and

claimed to be tried.

11. The prosecution, in order to establish the charges

examined, altogether, nine witnesses.

12. The prosecution witness Ramesh Kumar (PW-1) is

father of the deceased, and the witness Smt. Laxmi (PW-2)

is mother of the deceased. According to the prosecution,

these two witnesses are eye-witness of the occurrence.

According to Ramesh Kumar (PW-1), on hearing the shout of

his daughter, Km. Suman, he along with his wife and his

daughters Shivani, Saloni and Sapna reached at the spot.

13. According to the prosecution, the witness Soti

Ram (PW-3) had seen the accused running away with a

blood stained pole axe (Gandasa), and the said pole axe

(Gandasa) was recovered in the presence of this witness.

14. The witness Soti Ram (PW-3) supported the

prosecution case. He stated that he was not a neighbour of

Ramesh Kumar (PW-1). On 14.03.2012, he was coming to

his house. He noticed that the accused was running away

with a blood stained pole axe (Gandasa). When he reached

his house, he found that the right hand of Km. Suman was

injured. She was taken to the Government Hospital

Rishikesh. He deposed that at around 10:30 p.m., he and

Ramesh Kumar (PW-1) had seen a jeep of Police near

Nataraj. The accused was also with the Police at that time.

He deposed that two kilometer ahead of Nataraj place, an

pole axe (Gandasa) was recovered from the bushes at the

instance of the accused. The Police sealed the pole axe

(Gandasa) and prepared a recovery memo at the spot. He

identified his signature on the recovery memo (Ex-Ka6) and

identified the recovered pole axe (Gandasa) (Ex-13) during

his oral evidence. During the cross-examination, he deposed

that he had seen the accused who was running away with an

pole axe (Gandasa). He further stated that the pole axe

(Gandasa) was recovered at the instance of the accused.

The deposition of this witness does not suffer from any

material contradiction; his evidence is reliable and

trustworthy.

15. The Sub-Inspector Pratap Singh Negi (PW-4)

arrested the accused at around 08:25 p.m. on 15.03.2012.

He and the Inspector Ravindra Kumar (PW-9) stated that

after arrest the accused, the recovery of an pole axe

(Gandasa) was made in pursuance of a disclosure statement

made by the accused.

16. The Constable Roshan Rana (PW-5) is the scriber

of the First Information Report (Ex-Ka11).

17. Dr. K.V. Joshi (PW-6) conducted the Post-Mortem

Examination on 15.03.2012. According to this witness, a

chopped wound on antecubital fossa of right hand of the

deceased, size 45 x 9 c.m. was found and the deceased,

aged about 17 years, had died due to excessive bleeding

from the ante-mortem injury. He proved the Post-Mortem

Report (Ex-Ka17).

18. Dr. Harish Driwedi (PW-7) examined the injury of

the injured Km. Suman at around 01:50 p.m. on

14.03.2012. According to this witness, the right elbow of the

injured was completely cut-off. The injury was incised

wound. Margins were sharp. Blood was oozing. Cut pieces of

bones were seen. The injury was fresh and grievous in

nature.

19. The appellant-accused was examined under

Section 313 of the Code of Criminal Procedure, 1973. He

denied the evidence, adduced by the prosecution.

20. The appellant-accused examined Sanjeev Kumar

(DW-1) in his defence evidence.

21. Sanjeev Kumar (DW-1) stated that he lived in a

rented house near the house of the accused. On 14.03.2012

at around 01:40 p.m., he heard the noise. He reached near

the accused's room. He noticed that Km. Suman was hurt.

At that time, Km. Suman was in Rakesh's lap and Rakesh

was taking her to the hospital. He stated that Km. Suman's

mother came there and slapped Rakesh. Then, Rakesh gave

some money to Km. Suman's mother and ran away.

According to this witness, he was not an eye-witness of the

occurrence.

22. The learned trial court heard arguments,

appreciated the evidence, adduced by both the parties, and

held that the prosecution had successfully proved its case

against the appellant under Section 302 IPC. However, the

learned trial court acquitted the appellant for the offence

punishable under Section 506 of IPC.

23. Mr. R.S. Sammal, learned counsel for the

appellant, made a four-fold submission before us. It is

contended by him that the children, who had witnessed the

incident were not examined by the prosecution. Therefore,

the story of the prosecution is not reliable; the informant

Ramesh Kumar (PW-1) was not an eye-witness, and the

evidence of Smt. Laxmi (PW-2) is not reliable since she is an

interested witness; the appellant was in love with the

deceased. Therefore, there was no motive to cause the

death; there was only single blow on non-vital part of the

deceased, and no attempt was made to repeat the blow.

These circumstances itself show that the appellant had no

intention to cause death of the deceased. Thus, the instant

case falls under Section 304 Part II.

24. Mr. J.S. Virk, the learned Deputy Advocate

General, however, argued in support of the impugned

judgment and submitted that the FIR was lodged promptly,

the injured Km. Suman was taken to the hospital

immediately and the prosecution has proved its case beyond

all the reasonable doubt.

25. We heard learned counsel for both the parties and

carefully assessed the evidence adduced by the parties.

26. Plurality of evidence is not at all required for

bringing home the guilt of the accused. Any hard and fast

rule that a particular number of witnesses should be

required to prove a particular offence, would hamper the

administration of justice. Section 134 of the Indian Evidence

Act, 1872 lays down that no particular number of witnesses

is necessary for proof of any fact. The provision follows the

maxim that "evidence is to the weighed and not counted".

All that the Court is concerned with is the quality and not the

quantity of the evidence.

27. In Veer Singh and others vs. State of U.P.,

2014 (1) CCSC 218 (SC), the Hon'ble Supreme Court held

that legal system has laid emphasis on value, weight and

quality of evidence rather than on quantity, multiplicity, or

plurality of witnesses. It is not the number of witnesses but

quality of their evidence which is important as there is no

requirement under the Law of Evidence that any particular

number of witnesses is to be examined to prove/disprove a

fact. Evidence must be weighted and not counted. It is

quality and not quantity which determines the adequacy of

evidence as has been provided under Section 134 of the

Evidence Act. As a general rule the Court can and may act

on the testimony of a single witness provided he is wholly

reliable.

28. It is contended by Mr. R.S. Sammal, the learned

counsel for the appellant, that no reliance can be placed on

the statements of Ramesh Kumar (PW-1), father of the

deceased, and Smt. Laxmi (PW-2), mother of the deceased

because Ramesh Kumar (PW-1), was apparently not present

on the spot and Smt. Laxmi is an interested witness.

Therefore, the issue which arises in this appeal is whether

the statements of these two witnesses are reliable or not?

Hence, we shall refer to the statements of these two

witnesses in detail.

29. Mr. Ramesh Kumar (PW-1) stated that on the

fateful day, at around 01:30 p.m., when his daughter Km.

Suman was grinding spice, the accused came to his house,

and took her with him after stating that "he had to talk to

her". He heard shout of his daughter, which was coming

from the room of the accused. When he along with his wife

and his daughters Shivani, Saloni and Sapna went towards

the room of the accused, he saw that an pole axe (Gandasa)

was in the hand of the accused. The accused inflicted a blow

of the pole axe (Gandasa) on her body. She raised her right

hand up in her defence, the blow of the pole axe (Gandasa)

hit her right hand. Blood was oozing from the injury. The

accused threatened to kill them, and fled from the spot. She

was taken to the hospital. On the way to the hospital, his

daughter Km. Sapna stated that the accused wanted to

marry with her, and when she refused to marry with him, he

assaulted her. He proved his written information (Ex-Ka1).

30. Mr. Ramesh Kumar (PW-1) further stated that a

bed-sheet, and a pair of chappal were taken by the Police;

on 15.03.2012, an pole axe (Gandasa) was recovered from

the bushes at the instance of the accused. He was present at

that time of this recovery. He deposed that the recovered

pole axe (Gandasa) was sealed, and a recovery memo was

prepared by the Police on the spot. He signed the recovery

memo. During his examination, he identified his signature

on the recovery memo (Ex-Ka6) and identified the pole axe

(Gandasa) (Ex-13). The testimony of this witness does not

suffer from any material contradiction.

31. Almost similar statement has been given by Smt.

Laxmi (PW-3), mother of the deceased. She stated that on

the date of the incident, the accused came to her house. Her

daughter Km. Suman was grinding spice. The accused took

her to his room saying he had to talk to her. After

sometime, she heard shout of her daughter Km. Suman.

When she along with her husband reached there, she

noticed that in his room, the accused inflicted a blow of the

pole axe (Gandasa) on her daughter's neck, and when she

raised her hand up, the blow of the pole axe (Gandasa) hit

her hand. Blood was oozing from the body of her daughter.

The accused threatened to kill them, and fled from the spot.

She stated that she along with her husband took her to the

hospital. She deposed that on the way to the hospital, her

daughter Km. Suman stated that the accused wanted to

marry with her and when she refused to marry with him, he

assaulted her.

32. According to Bentham, "Witnesses are the eyes

and ears of the justice." A witness is normally to be

considered independent unless he springs from sources

which are liking to be tainted and that usually means, unless

the witness has caused, such an enmity against the

appellant, to wish to implicate him falsely. There is no

evidence on the record that these two witnesses or the

witness Soti Ram (PW-3) are inimical to the appellant. When

the witnesses who are not shown to be interested in the

prosecution or inimical to the appellant must be held to be

disinterested witnesses. Nothing has been brought out by

the appellant, which may in any way cast a doubt about the

reliability of the evidence of these witnesses. The fact that

the eye-witnesses are parents of the deceased is no ground

to discard their testimony unless the evidence is shaken in

cross-examination or the demeanour of these witnesses are

such as to lead to the inevitable conclusion that their

evidence are doubtful. The minor variations and

contradictions will not tilt the benefit of doubt in favour of

the appellant. Therefore, we are satisfied on the perusal of

the entire evidence of these two witnesses that their

evidence are trustworthy and fully reliable.

33. On examination of the statements of Ramesh

Kumar (PW-1) and Smt. Laxmi (PW-2), we have no

hesitation in coming to the conclusion that these two

witnesses were actually eye-witnesses. They have lost their

daughter. There is no reason for them to falsely implicate

the appellant. Therefore, being the parents of the deceased,

they would be least disposed to falsely implicate the

accused, or to substitute him in place of the real culprit.

These two witnesses, and the witness Soti Ram (PW-3) also

remained very firm during their cross-examination. The

testimony of these witnesses is unshakable. We are of the

considered view that the testimony of these witnesses are

cogent, credible and trustworthy. Therefore, deserve

acceptance. Their testimony is also corroborated by other

evidence, including medical evidence.

34. The prosecution through its evidence proved this

fact that the recovery of an pole axe (Gandasa), which was

used in the offence, was made in pursuance of a disclosure

statement made by the accused. According to the report of

Forensic Science Laboratory, human blood was found on the

bed-sheet, slippers of the deceased, on the shirt of the

accused and on the recovered pole axe (Gandasa). During

the evidence of Dr. K.V. Joshi (PW-6) and Dr. Harish Driwedi

(PW-7), the recovered pole axe (Gandasa) (Ex-13) was

produced. After seeing the pole axe (Gandasa), they opined

that the said injury may be caused by the pole axe

(Gandasa) (Ex-13).

35. A suggestion was given to the witness Ramesh

Kumar (PW-1) by the appellant that the deceased and the

appellant were in love with each other. According to the

testimony of Ramesh Kumar (PW-1) and Smt. Laxmi (PW-

2), on the way to the hospital, a statement was given by

their daughter Km. Suman that the appellant wanted to

marry her, and when she refused to marry him, he assaulted

her.

36. Section 32 (1) of the Indian Evidence Act, 1872

deals with dying declaration when it relates to cause of

death. When the statement is made by a person as to the

cause of his death, or as to any of the circumstances of the

transaction which resulted in his death, in cases in which the

cause of that person's death comes into question, such

statements are relevant whether the person who made them

was or was not, at the time when they were made, under

expectation of death, and whatever may be the nature of

the proceeding in which the cause of his death comes into

question.

37. A dying declaration may be written or oral. It may

be proved by the evidence of a witness who heard it made.

In the case of Vijay Pal vs. State (Government of NCT of

Delhi), (2015) 4 SCC 749, the Hon'ble Supreme Court has

held that if the dying declaration is absolutely credible and

nothing is brought on record that the deceased was in such

a condition that he or she could not have made a dying

declaration to a witness, there is no justification to discard

the same.

38. If a dying declaration is acceptable as truthful

even in the absence of corroborative evidence, Court may

act upon it. When a question of fact is produced before the

accused, he is free to decide it in any way that he thinks

proper. In the instant matter, the accused chose not to

challenge the dying declaration. In the cross-examination of

Ramesh Kumar (PW-1) and Smt. Laxmi (PW-2), even no

suggestion has been addressed to these witnesses that the

said dying declaration had not given by the deceased.

39. In the above circumstances, the dying declaration,

given by the deceased, is found true and voluntary. The

declaration was made by the deceased on her own volition

and without pressure and persuasion. The said dying

declaration is unimpeachable. The oral evidence, adduced by

the prosecution's witnesses, medical evidence and the dying

declaration of the deceased corroborate each other.

40. The motive behind the present crime was that the

appellant was pressurizing her to accept his proposal for

marriage, which she refused. When the deceased resisted,

and tried to raise an alarm, the appellant assaulted her. She

was taken to the hospital immediately. But her life could not

be saved.

41. The instant matter is a case of direct evidence. In

R. Shaji vs. State of Kerala, (2013) (3) CCSC 1268

(SC), the Hon'ble Supreme Court observed that motive is

primarily known to the accused himself. Therefore, it may

not be possible for the prosecution to explain what actually

prompted or excited the accused to commit a particular

crime. The Hon'ble Supreme Court has held that motive

loses all its significance in a case of direct evidence provided

by eye-witnesses.

42. Now turning to the last argument of Mr. R.S.

Sammal, learned counsel for the appellant where he

contended that even if the prosecution version is accepted in

toto, the case falls under Section 304 Part II IPC not Section

302 IPC because there was only single blow on a non-vital

part of the body of the deceased. Thus, there was no

intention of the accused to cause death.

43. The defence witness Sanjeev Kumar (DW-1) was

not an eye-witness. However, it is not disputed that the

occurrence took place. We have already examined the

circumstances in which the death of the deceased was

caused. The appellant had an pole axe (Gandasa) in his

room. He was pressurizing her to accept his proposal for

marriage. The plan was to execute the murder, if the

deceased resisted. The appellant in a pre-planned manner

had assaulted the deceased with sharp edged weapon. The

evidence disclosed that the appellant has killed the deceased

by planning out the whole incident in a methodical manner.

It cannot be overlooked that the intensity with which he hit

the deceased towards her neck is indicative of the fact that

he was not oblivious of the consequence which would have

resulted from his violent act with an pole axe (Gandasa). Dr.

K.V. Joshi (PW-6), who conducted the post-mortem, opined

that the blow from the pole axe (Gandasa) (Ex-13) was

sufficient to cause the death of the deceased in the ordinary

course of nature. Thus, it will have to be inferred that the

appellant had intention and sufficient knowledge about the

consequence of his violent act. Therefore, he was fully aware

of the consequence that this would result in a serious

consequence. These circumstances reflect his state of mind

that he committed the offence with full knowledge and

intention. Therefore, we find no merit in the argument of the

learned counsel for the appellant that even if the prosecution

version is accepted in toto, the case falls under Section 304

Part II IPC and not Section 302 IPC.

44. In view of the above detailed discussions, the

evidences on record proves that the offence of murder has

been committed by the appellant. Therefore, having re-

appreciated the entire evidence on record, we concur with

the learned trial court. It is not a fit case where impugned

judgment requires any interference.

45. For the reasons, as discussed above, the present

appeal is liable to be dismissed; the same is dismissed

accordingly.

____________________________ RAGHVENDRA SINGH CHAUHAN, C.J.

_______________________ ALOK KUMAR VERMA, J.

Dt: 22nd February, 2021 JKJ/Shubham