CRLA/61/2013
2022 Latest Caselaw 334 UK

           IN THE HIGH COURT OF UTTARAKHAND
                               AT NAINITAL
                        SRI JUSTICE S.K. MISHRA, A.C.J.

                                       AND

                            SRI JUSTICE N.S. DHANIK, J.

CRIMINAL APPEALNO. 61 OF 2013

22NDFEBRUARY, 2022

BETWEEN:

Karam Chand                                                .....Appellant.
And

State of Uttarakhand                                       ....Respondent.

Counsel for the Appellant               :      Mr. B.D. Pande, learned counsel.

Counsel for the Respondent              :      Mr. Amit Bhatt, learned Deputy
                                               Advocate General for the State.

Upon hearing the learned Counsel, the Court made the following

JUDGMENT :(per Sri S.K. Mishra, A.C.J.)

In this appeal, the appellant- Karam Chand, assails

his conviction under Section 302 of the Indian Penal Code,

1860, (hereinafter referred as "the Penal Code" for brevity),

and sentence of imprisonment for life recorded by the learned

IInd Additional Sessions Judge, Rudrapur, District Udham

Singh Nagar in Sessions Case No.100 of 2003.

2. Shown of unnecessary details, the case of the

prosecution is that one Ram Samujh, S/o Shiv Ratan lodged a

complaint before the P.S. Jaspur, District Udham Singh

Nagar, that his Sant Lal went to the forest on 05.02.2003, at

about 7-8 AM, for attending call of nature. But, he did not

return from the forest. In the evening, one Bijli informed the

informant that his son is lying dead inside the forest. Then

they went on the spot where the dead body was lying, found

several injuries on his persons. Accordingly, a police case was

registered, and investigation of the case was taken up by the

Investigating Officer. In course of investigation, he examined

witnesses, sent the dead body for post-mortem examination,

seized material objects like wearing apperalsof the deceased,

and the blood-stained axe on the discovery statement made

by the appellant under Section 27 of the Indian Evidence Act,

1872 (hereinafter referred to as the "Evidence Act" for

brevity), he arrested the accused, and forwarded him to the

Court. Upon completion of the investigation, he submitted the

charge-sheet under Section 302 of the Penal Code against the

appellant.

3. The defence took the plea of simple denial and false

implication by the prosecution.

4. In order to prove its case, the prosecution

examined eight witnesses, and relied upon several documents

including the Post-Mortem Report, and discovery statement

made by the appellant.

5. P.W.5 Tirath Kumar is the eye-witness who has

supported the case of the prosecution, basing on whose

testimony, mainly, the learned IInd Additional Sessions Judge

has convicted the appellant.

6. P.W. 2 Bhure Singh and P.W. 3 Tapeshwar Pal are

two other eye-witnesses, who have not supported the case of

the prosecution, and have been cross-examined by the

prosecution after having obtained permission under Section

154 of the Evidence Act.

7. P.W. 1 Ram Samujh is the informant of the case,

and he happens to be the father of the deceased.

8. P.W. 4 Sadik Hussain, P.W. 6 Ranjit Singh are two

formal witnesses examined on behalf of the prosecution to

prove seizures etc.

9. P.W. 7 Dr. Madan Mohan has conducted the post-

mortem examination on the dead body of the deceased, and

P.W. 8 S.I. Rajveer Singh is the Investigating Officer of this

case.

10. Neither any witness were examined on behalf of the

defence, nor any documents were led into evidence.

11. The learned Trial Court, after analysis of the

evidence, came to the conclusion that the prosecution has

proved its case beyond all reasonable doubt, and accepted

the evidence of P.W. 5 Tirath Kumar, which was duly

corroborated by the medical evidence in the shape of the oral

testimony of P.W. 7 Dr. Madan Mohan, contents of the Post-

Mortem Report, and the recovery of the weapon of offence,

i.e., Axe (कु ाड़ी) at the instance of the appellant, which on

chemical examination was found to have been stained with

human blood.

12. Initially, on 30.12.2003 the judgment of conviction

was passed. The appellant preferred an appeal to this Court

which was registered as Criminal Appeal No.29 of 2004. A

Division Bench of this Court allowed the criminal appeal, set-

aside the judgment, and remanded the matter back to the

learned Additional Sessions Judge to re-examine the

appellant under Section 313 of the Code of Criminal

Procedure, 1973 (hereinafter referred to as the "Code" for

brevity), as the learned Additional Sessions Judge, while

recording the conviction at the first instance had not put

certain material questions to the appellant regarding the

recovery of weapon of offence etc.

13. After remand, the learned Additional Sessions

Judge again took of the matter from the stage of Section 313

examination of the appellant, and after a proper hearing,

passed the judgment of conviction on 17.12.2012.

14. Mr. B.D. Pande, the learned counsel for the

appellant, would argue that evidence of P.W. 5 Tirath Kumar

cannot be relied upon as the other two eye-witnesses, i.e.

P.W. 2 Bhure Singh and P.W. 3 Tapeshwar Pal, have not

supported the case of the prosecution. He would argue that a

single eye-witness should not be relied upon, especially,

when the other two eye-witnesses have not supported the

case of the prosecution. In essence, Mr. Pande, would argue

that because P.W. 2 Bhure Singh and P.W. 3 Tapeshwar Pal

have not supported the case of the prosecution, P.W. 5 Tirath

Kumar cannot be relied upon to record a conviction.

15. The second limb of argument of Mr. Pande would

be that after the remand, the learned IInd Additional Sessions

Judge did not apply his mind afresh, and passed an identical

order convicting the appellant, as was drawn by him in the

first instance itself.

16. Mr. Pande, the learned counsel would further argue

that the incident took place during morning hour of

05.02.2003, whereas the witness, especially, P.W. 5 Tirath

Kumar reveal about this incident before the police on the

evening of 06.02.2003. So, he would argue that as the

witnesses did not immediately disclose before the police who

arrived in the village in the evening of 05.02.2003, the eye-

witnesses should not be believed. On the basis of such

argument advanced, Mr. Pande, the learned counsel would

argue that the appeal should be allowed and the conviction

should be set-aside.

17. Mr. Amit Bhatt, the learned Deputy Advocate

General appearing for the State, would argue that in this case

the prosecution has proved its case beyond all reasonable

doubts, and there is no reason to disbelieve P.W. 5 Tirath

Kumar, the solitary eye-witness, as his evidence is quite

squarely and effectively supported by the medical evidence,

and also the discovery of the weapon of offence at the

instance of the appellant.

18. The learned Deputy Advocate General would further

submit that the judgment passed by the learned IInd

Additional Sessions Judge is a well reasoned and properly

discussed one, and it requires no interference. Hence, he

prays that the appeal be dismissed.

19. In a case of murder, the first question to be

determined is whether the death of the deceased was

homicidal in nature. The defence, in this case, has not

disputed the identity of the dead body to be that of the

deceased Sant Lal. Hence, there is no point in discussing

those materials in this judgment.

20. P.W.7 Dr. Madan Mohan, has stated that on

06.02.2003, he was posted at Government Hospital,

Kashipur. On that day, at about 1:50 P.M., he conducted the

post-mortem on the dead body of Sant Lal, and found the

following injuries:-

"1. Incised wound left side of head over left parietal scalp and left frontal region upon left eye brow about 10cm X4cm X Scull bone deep. Laceration of bone present beneath wound about 8cm X2cm X0.5cm.

2. Incised wound left side of neck upped 1/3rd, parallel to mandible about 9cm X 5cm X deep upto body of cervical vertebrae about 4-5 level. Carotid vessels left vertebral vessel att. veins subcutaneous nerve tissue.Sternocleidomastoid and all stenches upto cervical vertebrae are cut. Transverse process are cut and body upto 1cm deep.

3. Incised wound neck above the injury no.2 about 4cm X 1cm X skin deep.

4. Incised wound right shoulder over back over suprascapular about 6cm X 3cm X bone deep.

5. Incised wound 2cm X 1cm X skin deep left arm anterior upper 1/3rd."

21. He further stated on oath that in his opinion the

death of the deceased Sant Lal was caused because of ante-

mortem injuries, and excessive bleeding and hemorrhage. His

testimony has been duly supported by the contents of the

Post-Mortem Report, and in the cross-examination, nothing

substantial has been brought out from his mouth to discredit

his testimony. Thus, it is clear that the learned IInd Additional

Sessions Judge was correct in holding that the death of

deceased Sant Lal was homicidal in nature.

22. Now the evidence of P.W.5 Tirath Kumar has to be

considered as his evidence is pivotal in this case. As observed

earlier, P.W.2 Bhure Singh and P.W.3 Tapeshwar Pal have not

supported the case of the prosecution. Hence, the evidence of

P.W.5 Tirath Kumar becomes all the more important.

23. P.W.5 Tirath Kumar has stated, on oath, before the

learned IInd Additional Sessions Judge that on 05.02.2003, at

about 8:00 P.M., Sant Lal went to the forest for attending the

call of nature. He was followed by Karam Chand, S/o Ram

Dhani, who was carrying an axe (कु ाड़ी). After some time, he

and Tapeshwar also proceeded towards the forest for

collecting wood. At that time, Bhure Yadav was coming from

the pond side. After walking for some time, Karam Chand

assaulted Sant Lal by means of the axe. Then all the three

witnesses protested why Karam Chand is assaulting Sant Lal,

to which Karam Chand said that the deceased Sant Lal has

illicit relationship with his wife that is why he is punishing

him. Then he threatened all the three witnesses and said that

if they reveal about this incident before anybody, then the

same fate will meet the witnesses. Then the witnesses stated

that out to fear they went back to their respective houses,

and did not reveal to anybody. On the next day, on

06.02.2003, when the Sub-Inspector came to the village, he

gave the statement.

24. In the cross-examination, this witness has stated

that on the date of occurrence, he had been to the forest for

collecting wood, and with him, Tapeshwar and Bhure were

also present. Though, he has been cross-examined in length,

not a single contradiction of this witness with respect to his

previous statement under Section 161 of the Code has been

brought out by the defence. Hence, there is a ring of truth in

the evidence of this witness.

25. It is true that P.W.2 Bhure Singh and P.W.3

Tapeshwar Pal have not supported the case of the

prosecution, but for that reason, P.W.5 Tirath Kumar cannot

be disbelieved.

26. The Hon'ble Supreme Court, in the case of Sat

Paul vs. Delhi Administration, AIR 1976 SC 294, has

decided that even in a criminal prosecution when a witness is

cross-examined and contradicted with the leave of the court

by the party calling him, his evidence cannot, as a matter of

law, be treated as washed off the record altogether. It is for

the Judge of fact to consider in each case whether as a result

of such cross-examination and contradiction, the witness

stands thoroughly discredited or can still be believed in

regard to a part of his testimony. If the Judge finds that in

the process, the credit of the witness has not been completely

shaken, he may, after reading and considering the evidence

of the witness, as a whole, with due caution and care, accept,

in the light of the other evidence on the record, that part of

his testimony which he finds to be creditworthy and act upon

it. The Hon'ble Supreme Court further laid down that if in a

given case, the whole of the testimony of the witness is

impugned, and in the process, the witness stands squarely

and totally discredited, the Judge should, as a matter of

prudence, discard his evidence in toto.

27. In this case, the prosecution has cross-examined

the two witnesses P.W.2 Bhure Singh and P.W. 3 Tapeshwar

Pal and by confronting their previous statements recorded

under Section 161 of the Code, has thoroughly discredited

them. So, it is our opinion that though P.W.2 Bhure Singh

and P.W.3 Tapeshwar Pal have not supported the case of the

prosecution, it will not discredit P.W. 5 Tirath Kumar in view

of the fact that their testimony is thoroughly discredited by

the prosecution and has to be jettisoned in its entirety.

28. The argument advanced by the learned counsel for

the appellant that delayed examination of the witness, or in

other words, delayed disclosure of the witness before the

Investigating Officer will make him a suspected witness.

29. The Hon'ble Supreme Court, in the case of Goutam

Joardar vs. State of West Bengal, (2021) SCC Online SC

910, has held that mere delay of examination of witnesses

and recording of statements of concerned eye-witness by

itself cannot result in rejection of their testimonies. The

Hon'ble Supreme Court further held that the material on

record definitely establishes the fear created by the accused.

If the witnesses felt terrorized and frightened and did not

come forward for some time, the delay in recording their

statements stood adequately explained.

30. Applying this ratio to this case, it is seen that P.W.5

Tirath Kumar has very categorically stated on oath before the

learned IInd Additional Sessions Judge that after committing

the murder of the deceased, when the witnesses protested,

the appellant threatened them with the same consequences if

they devolve this fact before anybody.

31. We find sufficient force in the argument of the

learned Deputy Advocate General that in such case delayed

examination or delayed disclosure of the name of the

appellant before the Investigating Officer will not be fatal to

the case of the prosecution, and the evidence cannot be

jettisoned or thrown away.

32. It is also well settled that no number of witnesses is

required for proving any fact under Section 134 of the

Evidence Act. It has been laid down that no particular

numbers of witness will be required for proving any particular

fact. In fact, thousands untruthful witness may not be

sufficient to prove a particular fact, which can be proved by a

single or solitary truthful witness. However, while deciding a

case of a solitary witness or where only one witness is coming

forward to depose against the accused, then the Court should

also take into consideration the surrounding circumstances

and test his evidence in the anvils of the objective

circumstances of the case.

33. In this case, the learned counsel for the appellant

has not disputed the medical evidence. From the medical

evidence, discussed hereinabove, it is clear that the deceased

Sant Lal had sustained several incised injuries which can be

caused by an axe. This is a very material objective

circumstance as well as a corroborative piece of evidence

which makes the evidence of P.W.5 Tirath Kumar more

reliable.

34. The learned counsel for the appellant has also not

disputed that the appellant gave a disclosure statement under

Section 27 of the Evidence Act, and in consequence thereof,

the axe was seized by the Investigating Officer. Such axe was

sent to the State Forensic Science Laboratory, Agra. The

report of the FSL reveals 'human blood' was found on the axe

seized by the Investigating Officer at the instance of the

appellant. P.W.6 Ranjit Singh has also supported the

prosecution about the discovery statement and the recovery

of the weapon of offence at the instance of the appellant.

35. In that view of the matter, this Court is of the

opinion that the objective circumstances appearing in this

case also fit in and corroborate, in material particulars, the

testimony of P.W.5 Tirath Kumar. There is no reason to

disbelieve P.W.5 Tirath Kumar.

36. The other argument that was advanced by the

learned counsel for the appellant is that the judgment

appears to be a mirror image of the earlier judgment.

37. We have examined the judgment. Though, it is in

the same lines, it cannot be said that the learned IInd

Additional Sessions Judge has not considered the materials

available on record and has not discussed the matter. The

judgment appears to be a clear and perspicacious one.

38. In that view of the matter, we are not inclined to

interfere with the judgment passed by the learned IInd

Additional Sessions Judge. Hence, the appeal is, hereby,

dismissed being devoid of any merit.

39. Let a copy of this judgment along with TCRs be

sent back to the trial court for forthwith. Re-committal

process be taken up forthwith.

(S.K. MISHRA, A.C.J.)

(N.S. DHANIK, J.) Dated: 22nd February, 2022 NISHANT