- (1.) HEARD Sri P.N. Mishra, learned Senior Counsel assisted by Sri Apul Mishra, learned counsel for the appellant. Sri Sunil Singh, Advocate holding brief of Sri J.S. Sengar and Sri Jitendra Prasad, learned counsel appearing on behalf of the complainant and Sri Arunedra Kumar Singh, learned A.G.A. for the State. This criminal appeal is directed against the common judgment and order dated 19.2.2005 passed by the Additional Session Judge, Court No.2, Kanpur Nagar in Session Trial No. 554 of 2004 under Section 302 as well as the order passed in Session Trial No. 557 of 2004 under Section 25/4 of the Arms Act, State Vs. Charanjeet Singh, Police Station Fazalganj, District Kanpur Nagar arising out of Case Crime No. 63 of 2004 and 64 of 2004 respectively. The appellant has been found guilty of an offence under Section 302 I.P.C. and has been punished with life imprisonment and a fine of Rs. 5,000/- in default of payment of fine he has further to undergo simple imprisonment for six months. The appellant has also been convicted under Section 25/4 of the Arms Act and has been sentenced for imprisonment for six months. The case of the prosecution as disclosed and relevant for the purpose of the appeal is as follows:- A written report- Ex. Ka-1 was lodged by the informant Mohan Singh stating therein that his son Saran Jit Singh had gone to meet his friend at 7:45 p.m. At around 9:30 p.m. on 12th March, 2012, Mohan Singh was informed that his son Saran Jit Singh was lying injured on the road in front of the shop of Mohan Tyres at Kabadi market, Kanpur Nagar upon which he along-with his grandson Karamvir Singh and others went to the reported place and found his son lying on the road in injured condition. He was immediately taken to the hospital by Autorickshaw? where he was declared dead. The body of Saran Jit Singh bears marks of injury. The informant was told that his son has been assaulted by the Charanjeet Singh @ Tinku resident of Kabadi Market whereupon a First Information Report was lodged by him which was registered as Case Crime No. 63 of 2004 under Section 302 I.P.C. at police station Fazalganj, District Kanpur Nagar at about 23:30 p.m. naming Charanjeet Singh @ Tinku as the accused. Investigation was started, inquest report was prepared and the body of the deceased Saran Jit Singh was sent for postmortem. The Investigating Officer recorded the statement of witnesses, prepared the site plan and after completing the investigation, submitted charge sheet against the accused. The case of accused Charanjeet Singh was committed to the court of Session Judge where he was charged under Section 302 I.P.C. and 25/4 Arms Act and he pleaded not guilty and claimed to be tried.
(2.) IN support of its case, the prosecution examined as many as eight witnesses, namely, Mohan Singh (P.W.2), the complainant of the case and Sushil Kumar Toni (P.W.2), Jagtar Singh (P.W.3), who were the eye witnesses of the crime. Constable 234 Suresh Chandra, who had prepared the Chik F.I.R. (Ex. Ka. 2)and G.D. (Ex. Ka 3). He also prepared Chik F.I.R. (Ex. Ka-4) and G.D. (Ex. Ka-5). S.I. Ravindra Singh (P.W.5), who had arrested the accused and recovered blood stained knife from his possession and had prepared a Fard (Ex. Ka-6). Dr. K.P. Madheshiya, who had conducted the postmortem examination on the body of the deceased. Head Constable? Bhumiraj Singh (P.W.7), who had investigated the case of Arms Act and prepared Site Plan (Ex. Ka-8) and submitted Chargesheet (Ex. Ka-9) against the accused. Ashok Kumar Rawat (P.W.-8), who had conducted the investigation and submitted charge-sheet under Section 302 I.P.C. The accused was examined under Section 313 Cr.P.C. and he denied the prosecution version and has claimed that he has been falsely implicated in this case. It was his case that he was arrested from his house and a false recovery has been shown against him. In respect of eye witnesses, it was stated by him that they had deposed against him because of business rivalry and he had not borrowed any money from Saran Jit Singh, the deceased. The trial Court after noticing the contention raised on behalf of the prosecution complainant and after considering the evidence both oral as well as documentary on record, proceeded to hold the accused guilty of offence under Section 302 I.P.C. in case crime No. 63 of 2004 and of an offence under Section 25 (4) of the Arms Act in case crime No.64 of 2004. The accused was sentenced for both the offences as noted above. It is worthwhile to record that the trial Court specifically noticed that the eye witness account of the incident as disclosed by the two eye witnesses, namely, PW2 and PW3, could not be shaken by the accused. The ocular testmony of the witnesses was corroborated by the recovery of knife which contained blood stain of human being as reported in the Serologist report which was also on record disclosing the recovered knife contained human blood. The lodging of the FIR was prompt. It was therefore held that the charge under Section 302 I.P.C. was established against the accused appellant as also the offence under Section 25/4 Arms Act. Challenging the order of the trial court, Sri P.N. Mishra, Advocate, has given following submissions before us: A. That the presence of the eye witnesses, i.e., PW2 and PW3 on the spot at the time of alleged assault was doubtful, inasmuch as, the FIR did not disclose the name of the eye witnesses although PW2 in his statement had stated that he was frequent visitor to the house of the deceased and it was he, who? had reported? about the incident of assault upon Saran Jit Singh on 12th March, 2004. The submission that the recovery of the knife from the pocket of the accused after three days is highly improbable, inasmuch as, no normal human being will carry the knife used for assault for three days in his pocket without even washing the blood stains. It is also contended that there was absolutely no evidence to establish that any loan was taken by the accused from Saran Jit Singh and, therefore, the motive for assault had not been established. It is also contended that the conduct of the persons said to have been present at the time of assault including PW 2 and PW3 as disclosed, is not of a normal human being, inasmuch as, it was their case that there was a scuffle between Charanjeet Singh and the deceased Saranjit Singh yet no attempt was made by any person sitting at the time of incident including PW2 and PW3 to intervene and to separate them from the scuffle. Sri Mishra contends that the normal conduct, for the eye witness PW 2 and PW 3, who admitted? to be known to the deceased, would have to make an attempt to save the deceased both at the time of scuffle and after he had been injured was to run to have shifted him to a hospital instead of leaving? him bleeding on the road and to have rushed to his residence for giving information of the incident. No attempt was made by the PW 2 and PW 3 to verify for themselves as to whether the deceased had expired at that point of time or not. Further they could have easily? informed the police as the police station was at a distance of 100-150 paces from the place of occurrence. Sri Mishra lastly contends that if it is established in the facts of the case that the death of Saran Jit Singh has occurred due to assault made by the appellant then in the facts of the case no offence under Section 302 I.P.C. was made out and the case would not travel beyond Section 304 Part I or Part II I.P.C. The appellant has already been confined for more than 8 years and, therefore, in the facts of the fact, the Court may convert the offence from under Section 302 I.P.C. to under Section 304 Part I or 304 Part II I.P.C. and the appellant may be released after sentencing him for the period he has already undergone imprisonment. On behalf of the complainant, it is stated that the contentions raised by Sri P.N. Mishra, Advocate have no substance. The eye witnesses had not been named in the FIR but the statement of the complainant was recorded in the same night under Section 161 Cr.P.C. and in the statement so recorded the name of the eye witnesses was specifically mentioned. He then submits that the facts relating to the incident as disclosed by the eye witnesses PW 2 and PW 3 were substantiated by other evidence on record as well as by the medical evidence including the recovery of the blood stained knife from the possession of the accused. Since traces of human blood on knife was established from the report of the Serologist, there is no reason to disbelieve the statement of the eye witnesses. Neither any hostility was alleged against the eye witnesses nor was there any suggestion as to why the two eye witnesses will falsely implicate the appellant. He further submits that PW2 was incapacitated in the left arm. It is normal human conduct that on seeing a person being assaulted by knife, the witness may ran to the place of residence of the victim so as to inform as to what has happened instead of coming to rescue of the injured. He, therefore, submits that no adverse inference can be drawn from the fact that the eye witness rushed to the place of residence instead of taking the victim to the hospital. The conduct could not be said to be unnatural. He further submits that in the facts of the case, the findings recorded by the trial Court after analyzing the evidence, cannot faulted with. This court may affirm the conviction and sentence so imposed. In respect of alternative plea that only an offence under Section 304 Part I or Part II I.P.C. was made out, he explains that the mere fact that assailant had stabbed four times in a short duration of one or two minutes is in itself sufficient to establish that he was cruel and the injury inflicted was of a nature that a normal human could be done to death and for the purpose he has referred to the report of the doctor and the post mortem report as well as the statement made by doctor concerned and PW.6 who stated that the injuries inflicted were sufficient to cause death within six hours of the assault.
(3.) WE have learned counsel for the parties and examined the record. The incident had taken place on 12th March, 2004 at around 9.30 P.M., the FIR was lodged on the same day at around 11.30 P.M. The injured was taken to the hospital where he was declared dead and the post mortem report prepared by the doctor shows that the death of the deceased was due to the assault made by knife. The eye witnesses PW2 and PW3 gave a detailed account of the incident and there is hardly any discrepancy in the? evidence of eye witnesses. The ocular testimony of PW2 and PW3, has been accepted by the trial Court, it was corroborated by other material evidence on record including recovery of knife used for the assault from the possession of the accused. The knife contained stains of human blood as reported by the Serologist. The trial Court has come to a specific conclusion on the basis of material evidence that it was the accused who has assaulted the deceased with knife resulting in his death. We find no illegality or perversity in the finding so arrived at by the trial Court. The eye witnesses account which is corroborated by other material evidence as noted above has rightly been accepted by the trial Court. It is not necessary to record the name of the eye witness in the FIR nor the case of the prosecution can be disbelieved merely because the name of the eye witness is not recorded in the FIR nor it shall prove fatal to the case of the prosecution. It is relevant to notice that PW 2 Sushil Kumar Toni had specifically deposes that informant P.W.1 did not recognize him by face. This was the reason that the name of P.W.2 could not be mentioned in the F.I.R. P.W. 2 had informed the grandson of P.W.1, namely, Karan Dhir about the incident and Karan Dhir was minor son of deceased in time informed his grandfather about the incident. The Hon'ble Apex Court in the case of State of U. P. Vs. Krishna Master and others reported in 2010 (3) ACr 3159 (SC) in para-15 has held as follows:- "The purpose of the F.I.R. is to set the criminal law in motion and it is not customary to mention every minute detail of the prosecution case in the F.I.R. F.I.R. is never treated as a substantive piece of evidence and has a limited use, i.e., it can be used for the corroborating or contradicting the maker of it. Law requires F.I.R. to contain basic prosecution case and not minute details. The law developed on the subject is that even if an accused is not named in the F.I.R. he can be held guilty if prosecution leads reliable and satisfactory evidence which proves his participation in crime. Similarly, the witnesses whose names are not mentioned in the F.I.R. but examined during the course of trial can be relied upon for the purpose of basing conviction against the accused. Non-mentioning of motive in the F.I.R. cannot be regarded as omission to state important and material fact." We are also of the opinion that presence of the eye witnesses cannot be doubted at the place of occurrence on the plea that they instead of involving themselves in the scuffle or taking the injured to the hospital rushed to the residence of the deceased for giving the information of the incident. PW2 and PW3 left the place of assault immediately after seeing the injured lying on the road after assault. Nothing unnatural can be attributed to such act of the person present at the time of the incident. The response, behavior of individuals in such situations differs from person to person and it cannot be said that response of every and any human being will be similar in such situation. The recovery of the weapon with stains of human blood used, from the accused is well established from the evidence on record.;