IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Chapter VIII, Rule 32(2) (b) Description of case Government Appeal No. 1897 of 2001 Old Number Government Appeal No. 750 of 1999 State of U.P. ……Appellant. Versus Preetam Singh and others. ……….Respondents. Date of Judgment: 27.04.2010 A.F.R. (Approved for Reporting) ___________________________ Not Approved for Reporting Date: 27.04.2010 Initial of Judge Note: Bench Reader will attach this at the top of first page of the judgment when it is put up before the Judge for signature. Judgment reserved IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Government Appeal No. 1897 of 2001 Old Number Government Appeal No. 750 of 1999 State of U.P. ……Appellant. Versus Preetam Singh and others. …..….Respondents. Present: Mr. S.S. Adhikari, learned AGA for the State/ appellant. Mr. U.P.S. Negi, learned counsel for the respondents. Coram: Hon’ble B.C. Kandpal, J Hon’ble Nirmal Yadav, J. (Per Nirmal Yadav, J) The State has challenged the judgment and order dated 28.11.1998 passed by Sessions Judge, Pauri Garhwal, acquitting accused respondents Preetam Singh, Uttam Singh, Rakesh, Hukum Singh, Rajendra Singh @ Raju and Puran Singh, who stood trial for the offence punishable under section 147, 302 read with section 149 of Indian Penal Code (for short IPC). The criminal law was set in motion on the application (exhibit Ka 1) moved by PW1 Sukhiya, mother of the deceased Ravindra. As per the complainant, she along with her son was living in village Haldukhata. On 07.03.1996 at about 9.30 p.m. all the above named six accused persons came to her house and inquired about the whereabouts of Ravindra. On her inquiry as to what was the matter, they told her that Ravindra had kidnapped Jayanti, daughter of accused Hukum Singh and 2 committed rape on her. However, when mother of Jayanti reached, he (Ravindra) ran away from the spot. They were threatening that they would not spare Ravindra. They also told the complainant that they will convene panchayat with regard to the immoral act done by Ravindra. Ravindra was sleeping in the adjoining room. All the accused forcibly took Ravindra with them. According to the complainant, she thought that they will leave Ravindra after making some inquiries as all the accused were within her relationship. She could not follow them as she was not feeling well. Before coming to her house, all the accused also visited the house of Buddhi Singh and Chhotey Singh also in search of Ravindra. However, in the morning she came to know that dead body of her son was hanging on a Guava tree in Kanhaya Singh’s plot. On the basis of written complaint chick First Information Report is stated to be recorded on 08.03.1996 at 08.05 a.m. Inquest report was prepared from 10 a.m. to 12 O’clock noon. As per the inquest report, right foot of the dead body was touching the earth while left foot was one inch above the earth. Tongue was within his teeth. Eyes were open. Dead body was removed by the Investigating Officer in the presence of witnesses, which was sealed and sent for postmortem examination. After completion of the investigation all accused persons were charged under sections 147, 302 read with section 149 IPC to which they pleaded not guilty and claimed trial. In order to prove its case, prosecution produced as many as 8 witnesses. PW1 Sukhiya, mother of the deceased. PW2 Rajesh, son of Chhotey Singh. PW 3 Jayanti 3 is the daughter while PW4 Shanti Devi is wife of accused Hukum Singh. PW5 Dr. Sushmita Verma medico legally examined Jayanti on 08.03.1996. PW6 Sub Inspector Ram Kumar Sharma, who was posted in the Police Station – Kotdwar, visited the spot along with Investigating Officer PW 7 SSI Harish Chandra Kalakoti. PW 8 Dr. R.K. Maheshwari conducted the postmortem. The postmortem report is exhibit Ka 17. On external examination, he found the following: “i. Ligature mark 23 cm. X 0.5 cm all around the neck, which was deep above the hyoid cartilages. Except this injury there was no other injury on the dead body of Ravindra.” As per the opinion of the doctor, cause of death was due to asphyxia (suffocation), which could be caused due to injury no. 1. He further opined that rope must have been tied across the neck and thereafter, deceased must have been hanged. In cross examination, he categorically stated that it appears that rope was tied around the neck of the deceased, which resulted into his death. It was not possible to tie the rope by the deceased himself. He further stated that ligature mark would not have been found at the place where it has been found on the dead body of the deceased if he had himself tied the rope. However, injury found on the person could be possible if rope was tied by some other person. He further stated that hyoid bone of the deceased was not broken and there is no mention about this fact in the post mortem report. 4 All the accused, when examined under section 313 Cr.P.C., denied the incriminating evidence put to them and pleaded false implication. They stated that neither they went to the house of Sukhiya nor took away Ravindra as alleged by the prosecution. They are not, in any manner, concerned with the crime. The trial court after taking into consideration the evidence on record came to the conclusion that prosecution has miserably failed to prove the motive for committing the crime and further prosecution has also failed to prove the circumstances, which could point out the finger of guilt towards the accused. The court has also disbelieved the testimony of Sukhiya being a closed relative i.e. mother of the deceased. We have heard Mr. S.S. Adhikari, learned AGA for the State/appellant and Mr. U.P.S. Negi, learned counsel for the respondents. Learned AGA argued that findings of the trial court are totally perverse and misconceived. He pointed out that accused and deceased are inter-related. They belong to the same village and same brotherhood. As per the statement of Sukhiya, Hukum Singh is son-in-law in brotherhood and Jayanti is his daughter and in this manner Jayanti is niece of Ravindra. In these circumstances, Sukhiya did not suspect that accused persons would take such an extreme step of killing Ravindra. Learned AGA has referred to the statement of Sukhiya where she stated that she thought that accused persons would leave Ravindra after making some 5 inquiries. She therefore, did not raise any alarm nor did she follow the accused persons. He further argued that the findings of the trial court that the prosecution has failed to prove motive is also not based on evidence on record. He referred to the statements of Sukhiya as well as Rajesh and argued that they have stated that all the accused were proclaiming that they will not spare Ravindra, as he had committed rape on Jayanti. All the accused were seemed to be annoyed on this account. On the other hand, learned counsel for the respondents argued that in a case where two views are possible, one favouring the accused, should be adopted by the court. He further argued that the appellate court should not interfere in the appeal against the acquittal merely because the appellate court is inclined to take a different view. He argued that testimony of Sukhiya is wholly unreliable and her conduct was quite unnatural. When accused came to her house and took away Ravindra, she did not raise any alarm. In case, she had raised alarm other persons living in her neighbourhood would have certainly come to her rescue. She even did not approach Buddhi Singh and Chottey Singh. Learned counsel for the respondents argued that it appears quite unnatural that Sukhiya would keep quite during the whole night if her son did not return home. He further argued that prosecution has miserably failed to prove the motive. PW3 Jayanti, on whom deceased Ravindra is alleged to have committed rape, has totally denied any such occurrence having taken place, 6 which is corroborated by her mother PW4 Shanti Devi. He referred to the statement of PW5 Dr. Sushmita Verma, who stated that there was no fresh injury on the person of Jayanti, whom she had examined on 08.03.1996. She could not definitely say that Jayanti was forcibly subjected to sexual intercourse on 07.03.1996 at about 9.30 p.m. or prior to that. In the cross examination this witness stated that there was no internal or external injury on the body of Jayanti, however, hymen was torn but it was not fresh and there was no injury suggesting rape. However, as per opinion of doctor two fingers were easily permissible in the vagina. According to learned counsel for the respondents, First Information Report is ante-time, in fact, it was not recorded on 08.03.1996 at 08.05 a.m. He referred to the statement of PW 1 Sukhiya, wherein she stated that police officials were present near the dead body when she reached the spot and they sent her to get the report lodged. She further stated that Kanti and Rakesh were sitting near the dead body. Police officials were with them. Police officials did not allow her to talk to anyone and directed her to go to police station straight away. In the cross examination, she stated that the paper on which she got the report written by Ravi, was provided by the police officials. Paper was given to her at the place where the dead body was hanging. She further stated that Ravi had written report in the presence of S.O. (Daroga ji). Learned counsel argued that from the above fact it is apparent that entire prosecution story has been concocted at the instance of the police officials, after the police reached the spot. 7 After going through arguments and on careful consideration of the rival submissions made by learned counsel for the parties and evidence on record, we find that admittedly, there is no direct or ocular testimony and therefore, entire prosecution case rests on the circumstantial evidence. The first circumstance which has been brought on record by the prosecution is the evidence of last seen i.e. statement of PW1 Sukhiya, mother of deceased. This witness while appearing in the witness box has of course stated that all the accused came to her house and inquired about Ravindra and all of them were very aggressive when they inquired about Ravindra. They were proclaiming that they will not spare Ravindra as he had committed rape on Jayanti and thereafter, they lifted Ravindra from the adjoining room. They also stated that they will convene panchayat with regard to the incident of rape committed by Ravindra on Jayanti. She further stated that after they had taken away Ravindra, he did not come back home during the night and in the morning she was informed that dead body of Ravindra was hanging on guava tree. There is nothing on record that witness had raised any alarm or made any hue and cry when her son was being forcibly taken away from her house. Her conduct appears to be quite unnatural. In such circumstance, it does not appear to be probable that she would sleep peacefully in her house during the night though her son had been taken away by a group of six persons, who appeared to be very aggressive at that time. In case, she had raised alarm the person living in her neighbourhood i.e. Phula Singh, Jagmohan, whose houses are just in the closed vicinity, would have certainly come to their rescue. 8 PW 2 Rajesh has admitted in the cross examination, that there are houses of Bhachan Singh and Virendra Prasad and other relatives of this witness. Both PW1 Sukhiya as well as PW2 Rajesh did not approach anyone in the village nor did they did even try to contact Buddhi Singh and Chhotey Singh or their other relatives even when they knew that the accused were in aggressive mood and they were threatening not to spare Ravindra as he had committed rape on Jayanti, daughter of accused Hukum Singh. The only evidence of last seen is the testimony of PW1 Sukhiya, mother of the deceased. However, as discussed above, her testimony does not appear to be reliable. According to the prosecution story the investigation was initiated after the First Information Report was lodged on 08.03.1996 at 08.05 a.m. by the mother of Ravindra. This particular fact of the prosecution story is falsified from the statement of PW1 Sukhiya herself. According to her, when she reached the place of occurrence police officials were already present. Paper for writing the complaint (exhibit Ka 1) was provided by the police officials. Ravi, the scribe of exhibit ka 1 was present at the place of occurrence where dead body was hanging. Complaint (exhibit ka 1) was written at that very place. Her statement is indicative of the fact that complaint (exhibit ka 1) was written in the presence of police officials and the possibility of confabulation and deliberation cannot be ruled out. Since the First Information Report appears to have been written after the Investigating Officer had reached at the place of occurrence, testimony of PW 1 Sukhiya does 9 not appear to be trustworthy and worth credence. Testimony of PW 2 Rajesh can be said to be evidence of last seen, as he has simply stated that accused had come to his house and made enquiries about Ravindra deceased. He further stated that deceased had been coming to his house occasionally. He would just visit him occasionally and therefore, in such circumstance it was not expected that Ravindra would be available at his house and therefore, accused would come in search of Ravindra to his house. There is no direct evidence to prove motive, though prosecution has tried to bring forward the same. As per PW 1 Sukhiya and PW2 Rajesh, accused were angry with the deceased Ravindra as he had committed rape on Jayanti but the theory of rape is not at all proved. Prosecution has miserably failed to prove the theory of rape on Jayanti, alleged to have been committed by Ravindra. PW3 Jayanti categorically denied that deceased had committed rape on her. Even PW 4 mother of Jayanti did not support the prosecution case. In fact, there is no iota of evidence to prove that any rape was committed on Jayanti. Testimony of PW5 Sushmita Verma also does not support the prosecution case. According to her, she did not find any fresh injury on the person of Jayanti, whom she had examined on 07.03.1996. No internal or external injury was found on the body of Jayanti. She did not find any injury suggesting rape. Thus, she could not definitely say that Jayanti was forcibly subjected to sexual intercourse on 07.03.1996 or prior to that, as suggested by the prosecution. 10 It has been held by the Apex Court in catena of judgment that where prosecution case rests on circumstantial evidence and if prosecution fails to prove the motive, the accused are entitled to get benefit of doubt and resultantly deserves acquittal. The court has to keep in mind that in cases where the evidence is of circumstantial in nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so complete as not to leave any reasonable ground for a conclusion consistent with innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. In the present case the most important circumstance in the chain of evidence is testimony of PW1 Sukhiya, which as discussed above has not been found to be reliable and worthy of credence. Even the First Information Report appears to have been registered after due deliberations and consultation, which certainly creates doubts in the prosecution case. The prosecution has, thus, miserably failed to prove its case beyond reasonable shadow of doubt. Even in cases where two views are possible, after acquittal in appeal benefit will go to the accused. The Hon’ble Apex Court in case of Allarakha K. Mansuri Vs. State of Gujarat reported in 2002 (1) RCR (Criminal) 11 page 748 has held that where in a case, two views are possible, the one which favours the accused has to be adopted by the Court. The Hon’ble Apex Court in the case of Ashok Kumar Vs. State of Rajasthan reported in 1991 (1) SCC 166 observed that interference in appeal against acquittal would be called for only if the judgment under appeal is perverse or based on misreading of the evidence and merely because the appellate court was inclined to take a different view could not be the reason calling for interference. Learned AGA has failed to show that the judgment under challenge is perverse or based on misreading of the evidence on record. For the reasons mentioned above, the appeal fails and the same is dismissed accordingly. (Nirmal Yadav, J.) (B.C. Kandpal, J) 27.04.2010 SKS