Judgment reserved IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Government Appeal No. 1457 of 2001 Old Number Government Appeal No. 926 of 1996 State of U.P. …………..Appellant. Versus Baaj Singh and another. …….Respondents. Present: Mr. S.S. Adhikari, learned AGA for the State/ appellant. Mr. R.S. Sammal, learned counsel for the respondents. Coram Hon’ble B.C. Kandpal, J Hon’ble Nirmal Yadav, J. (Per Hon’ble Nirmal Yadav, J). This leave to appeal has been filed by the State against the judgment of acquittal dated 31.01.1996 passed by Additional Sessions Judge, Nainital vide which the accused / respondents were acquitted for offences punishable under sections 302, 307 read with section 34 IPC and section 27 Arms Act. It is one of the unfortunate case where family members of two cousin brothers are involved. Major Singh and Amar Singh were the unfortunate victims, who died in occurrence while Dileep Singh suffered fire arm injuries. There were three accused namely Tara Singh, Baaj Singh and Trilok Singh, but Tara Singh died during the course of trial. All the three accused stood trial for the 2 offences punishable under sections 302, 307 read with section 34 of the IPC and section 27 Arms Act. Process of criminal law was set in motion against the respondents at the instance of PW1 Chanan Singh, brother of deceased Major Singh and brother-in-law of deceased Amar Singh alias Amar Jeet Singh. The FIR (exhibit Ka1) was lodged by Chanan Singh, stating therein that his house is close to the house of his cousin brothers i.e. accused Tara Singh, Baaj Singh. Accused were having grudge against him over land of passage and on this account they had altercation with him quite often. On 04.03.1999 at about 9.00 p.m. Tara Singh armed with unlicensed gun, Baaj Singh armed with licensed gun and Trilok Singh armed with ballam came together at their house and exhorted the complainant party to come out. Thereupon, the complainant Chanan Singh along with his brother Major Singh and brother-in-law Amar Singh and father Dileep Singh came out and inquired as to what was the matter. Immediately thereupon, Tara Singh and Baaj Singh started firing from their guns. Chanan Singh took shelter while Major Singh, Amar Singh and Dileep Singh fell down in the courtyard after receiving gun shot injuries. Major Singh and Amar Singh died at the spot. Dileep Singh received gun shot injury on his shoulder. At the time of occurrence, Bagicha Singh and Sukhdev Singh were also present at the complainant’s house. The occurrence was witnessed by all the family members. On raising alarm, all the accused went away towards their house. 3 The injured Dileep Singh was removed to hospital in the tractor trolley of Niranjan Singh. On the basis of the complaint (exhibit Ka1), chik FIR was registered on the same day i.e. on 04.03.1990 at about 11.45 p.m. in police chowki – Bailparao, Police Station – Ramnagar which was at a distance of about 5 kms from the place of occurrence. After lodging the FIR the Investigating Officer initiated the investigation. He went to the spot and recorded the statement of the witnesses in the morning of 05.03.1990. He prepared the inquest report exhibit Ka2 and exhibit Ka3 with regard to the dead bodies of Amar Singh and Major Singh respectively. Thereafter, their dead bodies were sent for postmortem examination. The clothes of the deceased were sealed into separate packets. He prepared the site plan of the place of occurrence (exhibit Ka 21). He also lifted blood stained earth and plain earth and five empty cartridges from the place of occurrence i.e. in the courtyard of the house of Major Singh, which were sealed in separate parcels. Accused Baaj Singh and Trilok Singh were arrested on 09.03.1990 at about 9.30 p.m. while accused Tara Singh was arrested on 20.03.1990 at about 8.25 a.m., who made disclosure statement. In pursuance of the said disclosure statement, 12 bore country made gun, licensed gun of Baaj Singh, license of Baaj Singh and four live cartridges were got recovered by Tara Singh. On conclusion of the investigation final report was put in the court for trial. Accused were charge-sheeted to which they pleaded not guilty and claimed trial. 4 The prosecution in order to prove its case produced as many as 11 witnesses and also produced on record documentary evidence. PW1 Chanan Singh, is the informant. PW2 Sukhdev brother-in-law of Chanan Singh (sister’s husband), PW3 Dileep Singh, the injured witness are the eye witnesses. PW 4 Niranjan Singh, is the witness of panchayatnama, recovery of blood stained earth and plain earth, five empty cartridges from the spot. PW5 Dr. Hari Om Pandey, is the surgeon, who had operated Dileep Singh and had recovered pellets from his body. PW6 Harbhajan Singh, the witness with regard to arrest of accused Tara Singh and recovery of one country made gun, four cartridges, one licensed gun of Baaj Singh and license of Baaj Singh from his possession. PW7 Dr. N.K.Agarwal conducted the postmortem of Amar Singh (deceased) and Major Singh (deceased). PW8 Constable Narendra Singh, recorded the report in police chowki – Bailparao and he had also accompanied dead bodies of Major Singh and Amar Singh to the hospital for conducting postmortem. PW9 Head Constable Moti Ram had registered the chik First Information Report on the basis of report submitted by Chanan Singh. PW10 Dr. S. S. P. Verma medically examined Dileep Singh injured. PW11 SI P. C. Pandey conducted the investigation of the case. PW10 Dr. S. S. P. Verma found following injuries on the person of Dileep Singh: i. Gunshot injury 5 cm X 7 cm on the left shoulder in the front side. ii. Two gunshot injury 15 cm below the first injury in the front side of the chest. 5 He referred injury no. 1 to the Radiologist. On conclusion of the prosecution evidence, incriminating material was put to accused / respondents when their statements were recorded under section 313 Cr.P.C. They refuted the same and pleaded false implication. They did not produce any evidence in their defence. Accused Tara Singh died during the course of the trial. The trial court on appraisal of the evidence as led by the parties, came to the conclusion that the prosecution has failed to prove the guilt of the accused beyond the shadow of reasonable doubt and they were acquitted for the charges for which they were tried, hence, this appeal. Learned trial court acquitted accused Trilok Singh and Baaj Singh mainly on the following grounds: i. As per evidence on record there was no source of light and therefore, it was not possible for Chanan Singh and Sukhdev to recognize or identify the assailants as the occurrence took place at about 9.00 p.m. in the dark. ii. Both the parties were neigbhours and having dispute over the passage but there was nothing in evidence showing what was the actual dispute over the passage. Even if there was some dispute it was about 5 – 6 years prior to the present occurrence and there was no dispute immediately prior to the occurrence. iii. There was no motive on the part of the accused to cause death of two persons and seriously injured the third person. 6 iv. As per the statement of complainant, Trilok Singh was armed with ballam but there is no ballam injury on the person of any of the two deceased or on the person of Dileep Singh. Thus, the involvement of Trilok Singh in any manner in the present case is not at all proved. v. Though the licensed gun of Baaj Singh was got recovered at the instance of accused Tara Singh and the said gun was sent to forensic laboratory for scientific examination but the report of the ballistic expert or science examination has not been produced by the prosecution in the evidence. It shows that the prosecution has intentionally avoided to produce the same before court. It appears that the said gun was not used in the incident, therefore, Baaj Singh cannot be held responsible for any of the alleged act. vi. The trial court has further disbelieved the testimony of Dileep Singh and the other two eye witnesses. It is stated that when he came out of the house, Tara Singh allegedly fired at him. On receiving the gun shot injury, he fell down and became unconscious and thereafter, he could not see as to who had fired and at whom. Therefore, his testimony that Baaj Singh had caused death of Major Singh and Amar Singh by firing from his gun cannot be accepted, therefore, his testimony qua Baaj Singh that he fired shots from his gun to cause death of Major Singh and Amar Singh cannot be relied. It has also been pointed out that the injury no. 1 present on the person of Dileep Singh cannot be caused by fire arm. The trial court also has disbelieved the testimony of Chanan Singh and Sukhdev Singh. He pointed out 7 several contradictions in their statements. He referred to the statement of Chanan Singh where he stated that first my father Dileep Singh came out of his house, who was followed by his brother Major Singh and his brother-in- law Amar Singh came out of his house. Tara Singh fired at his father Dileep Singh while Baaj Singh fired at his brother Major Singh and brother-in-law Amar Singh. However, he had stated before the police that when the accused persons exhorted, they came out and found that two persons from their side were already lying dead. Meaning thereby when Chanan Singh came out Major Singh and Amar Singh had already died. The trial court also pointed some other minor discrepancies. According to Chanan Singh, Sukhdev Singh was sitting inside the house and he also raised alarm by coming out to the house, however, in the cross examination he stated that they all were sitting in the verandah. Similarly, in the examination in chief Sukhdev Singh stated that he along with Bagicha Singh, Amar Singh, Chanan Singh, Major Singh and Dileep Singh were sitting in the room but in the cross examination he stated that at the time of occurrence he was inside the verandah. vii. Learned trial court has further came to the conclusion that death of Major Singh and Amar Singh actually did not occur at about 9.00 p.m. on 04.03.1990 because undigested food was found in the stomach of Major Singh and Amar Singh, which shows that they had already taken their meals one or two hours prior to the alleged occurrence. But all the accused have stated that meals were being prepared and none had taken their food till the time of occurrence. In these circumstances, all of 8 them must have eaten food after 9 o’clock and the occurrence might have taken place around 11 or 12 o’clock in the night. viii. The trial court has further observed that postmortem report also does not support the prosecution case. He referred to the statement of PW 2 Sukhdev, who stated that they were taking drinks prior to the occurrence but alcohol was not detected in the postmortem of Major Singh and Amar Singh. The trial court further pointed out that as per report of PW7 Dr. N.K. Agarwal all the injuries on the person of Amar Singh and Major were on the back side, which could not be caused by firing from the front side. All the injuries on the person of Amar Singh and Major Singh were of oval shape and not of round shape, therefore, it appears that the assailants were at higher level than the victim. On the other hand learned AGA has vehemently contended that the trial court has misread the entire evidence. Presence of eye witnesses Chanan Singh, Sukhdev Singh and Dileep Singh at the place of occurrence was natural but has wrongly been ignored by giving too much importance to the minor contradictions and discrepancies in their statements. He further argued that there was no delay in lodging the First Information Report. Learned AGA submitted that there was no question of mistaken identity. According to him, there was an 9 occasion to celebrate in the family, therefore, it is not possible that there was no source of light at the place of occurrence. Even otherwise, the accused and complainant parties are cousin brothers and neighbours. Tara Singh and Baaj Singh are the cousins of Chanan Singh. He further argued that it is well proved that there was motive on the part of the accused to commit the offence. With regard to non production of report of ballistic expert, the learned AGA argued that when there is direct reliable ocular testimony, mere non production of ballistic report would not demolish the prosecution case. The trial court has totally misread the evidence available on record. The medical evidence fully corroborates the testimony of eye witnesses whose presence at the time of occurrence was natural. Therefore, appeal be allowed and accused be convicted and sentenced for the offence for which they have been charged. Learned counsel for the respondents has vehemently opposed the arguments raised by learned AGA and submitted that all the eye witnesses are highly interested witnesses and their statements are contradictory to each other, therefore, they are not reliable witnesses. He further argued that prosecution has failed to prove any motive on the part of accused to cause death of two persons especially, with regard to Amar Singh with whom there is no allegation of any enmity. It was further argued that medical evidence also does not support the ocular testimony. Even recovery of licensed gun of Baaj Singh is totally doubtful. 10 Learned counsel for the respondents further argued that prosecution has not been able to connect accused Trilok Singh having caused any injury or any overt act has been done by him. Tara Singh has already expired during the course of trial. Now, it is only the case of Baaj Singh, which has to be taken into consideration. Even no case is made out against Baaj Singh. It is argued that murders, in fact, were committed by some unknown persons and accused were implicated only on account of suspicion. The learned counsel for the respondents lastly submitted that where two views are possible, one favouring the accused, has to be upheld by the Appellate Court. He also argued that interference in appeal against the acquittal would be called for, only if the judgment under challenge is perverse or based on misreading of evidence and not merely because the appellate court is inclined to take a different view. After hearing learned counsel for the parties, this court is of the opinion that judgment passed by learned court below is perverse and contrary to the evidence available on record. It also reflects misreading and misinterpretation of the evidence. The trial court has given too much importance to the minor discrepancies in the statements of eye witnesses, which are otherwise reliable and trustworthy and the presence of eye witnesses at the place of occurrence appears to be natural. The testimony of Dileep Singh, who had received injuries in the occurrence, has been disbelieved by the trial court by concluding that his presence is not proved at the place of occurrence and the injuries shown on his person 11 are totally fabricated. Dileep Singh is brother of Trilok Singh and the houses of accused and complainant party are next to each other. Dileep Singh has categorically stated that on the date of occurrence at about 9 p.m. he along with Chanan Singh, Major Singh, Amar Singh, Bagicha Singh, Sukhdev Singh and other family members were sitting in his house. Meanwhile, all the three accused armed with weapons came to their house and started hurling abuses. They exhorted them to come out. When he came out Tara Singh fired at him, consequently, he fell down and became unconscious. His testimony appears to be quite natural, when he said that after receiving injuries he could not see as to which of the accused had fired at whom. Thereafter, he re-gained consciousness in the hospital on fourth day from the date of the occurrence. He was medically examined by Dr. S. S. P. Verma, who found one gun shot injury on the front side of the left shoulder and two gunshot injuries 15 cm below the first injury on the chest. He has categorically stated that these injuries could have been caused by fire arm. He also in the cross examination stated that injuries must have been caused from close range i.e. from a distance of about 1.5 to 2 feet. It is true that Dr. S.S.P. Verma has not mentioned close range symptoms found around the injuries. He simply stated that injuries were fresh and bleeding was present and therefore, he referred the patient. He further stated that skin around both the injuries was singed (Jhulas). Dileep Singh was examined by him on 04.03.1990 at about 11.15 p.m. on the date of occurrence itself. Thereafter, he was operated by Dr. Hari Om Pandey (PW5). According to PW5, he had operated Dileep Singh on 05.03.1990 and taken out pellets from his 12 body. Dileep Singh remained admitted in the hospital upto 18.03.1990. Though there was no entry in the register, as to from where and under what circumstances the patient was referred to the Combined Hospital Baajpur but it was explained that since it was a serious case and due to surgical emphysema, he may have been referred to Combined Hospital, Baajpur. The trial court has totally misread the evidence and given perverse finding by stating that how was it possible that Dileep Singh was admitted at 11.15 p.m. and report was lodged thereafter, at 11.45 p.m. It is always a human tendency to give preference to save the life of near and dear one’s than to report the matter to the police. The primary concern of Chanan Singh was to remove his father first to the hospital and then to go to report the matter to the police, thus we find that his conduct was not at all unusual. Learned trial court has totally arrived at wrong conclusion that pellets were removed from the body of Dileep Singh on 07.05.1990, merely on the basis of the fact that these pellets were taken in possession by the police on that date. If the Investigating Agency has committed some mistake or have bungled while conducting the investigation, no benefit can be given to the accused on this account nor the veracity of the reliable witnesses can be doubted. We find that the testimony of Dileep Singh is reliable and trustworthy when he stated that he was fired by Tara Singh. This finding may not be relevant at this stage qua accused Tara Singh, who died during the course of trial, however, the finding of the trial court that the 13 testimony of Dileep Singh is not reliable, cannot be sustained. As regards to the testimony of Chanan Singh, we find that he reported the matter immediately to the police at 11.45 p.m. He has categorically stated that Tara Singh and Baaj Singh armed with guns whereas Trilok Singh armed with ballam came to their house at 9.00 p.m. and when they exhorted Dileep Singh went out and Tara Singh fired at him. Thereafter, Baaj Singh fired at his brother Major Singh and brother-in-law Amar Singh who had come out after Tara Singh. The witness took shelter and saved himself. This witness, however, did not attribute any specifc injuries having been caused by Trilok Singh. Similarly, Dileep Singh did not say a word or alleged any overt acts having been done by Trilok Singh. Trial court has just pointed out minor discrepancies in the statements of Chanan Singh and Sukhdev Singh, which in our opinion are not fatal to the prosecution case. In fact, discrepancies are not at all relating to the material facts and therefore, do not go to the root of the case and thus, have to be ignored. There were minor discrepancies like whether the complainants were sitting in the verandah or in the room or whether meals were being served or were being prepared. Learned trial court has laid too much emphasis on the fact that there was no source of light at the place of occurrence, therefore, it was not possible for the witnesses to recognize or identify the accused and this ground alone is sufficient to acquit the accused persons. In our opinion, 14 the finding of the trial court is misconceived. It has come in the evidence that accused and complainant are first cousins and living in the houses which are next to each other, therefore, there could not be a question of mistaken identity. All the witnesses stated that the accused came and exhorted complainant party to come out. It has come in the evidence that there were celebrations in the family of the complainant party on the occasion of birth of male child, therefore, it would be highly impossible that there would be no source of light in the house. Third eye witness is Sukhdev Singh, who is brother- in-law (sister’s husband) of Chanan Singh. Though the house of this witness is at a distance of one kilometer from the house of the complainant but he visited the house of Chanan Singh as he had come to drop mother-in-law of Chanan Singh to his house. According to him, he had written the complaint (exhibit Ka 1) on the dictation of Chanah Singh. He is the close relative of both the parties. According to him, his uncle is son-in-law of Trilok Singh accused. He came to the house of the complainant to attend the celebrations on account of birth of male child to Chanan Singh. Though there are minor discrepancies in the statements of witnesses but we do not find any ground to discard their testimony as their presence at the place of occurrence is quite natural. As per the trial court, the prosecution has failed to prove the motive for committing the crime. It is well established that motive is a double edged weapon. In view of the reliable and trustworthy direct eye witnesses account the importance of motive becomes oblique. Even 15 if there is no motive it would not affect the prosecution case. However, in the present case, all the witnesses have categorically stated that there was a dispute between the parties on account of land of passage. Both Chanan Singh and Sukhdev Singh have given vivid statement of account with regard to occurrence. The defence despite lengthy cross examination has failed to shatter their testimony. The evidence on record indicates that it was a case of brutal murder of two persons and causing grievous injuries to third person. From the testimony of the eye witnesses’ the prosecution has been able to prove the genesis and manner of occurrence. We find that testimony of all the three witnesses is quite natural and truthful. However, it is well known that in the Indian society there is tendency of involving more persons than the actual culprits in any incident. Accused Trilok Singh being the father of Baaj Singh may have been roped in the case. Witnesses, in their statements have stated that Trilok Singh came armed with ballam but no injury has been attributed to either of the two deceased or to injured Dileep Singh having been caused by Trilok Singh. Even the perusal of postmortem reports of Major Singh and Amar Singh do not show any ballam injury nor it has been found on the person of injured Dileep Singh. Keeping in view the fact that neither in the FIR nor during the deposition of the statements in the court any of the witness has leveled any allegation against Trilok Singh nor medical evidence shows his involvement in the commission of crime. We are of the view that prosecution has failed to prove any charges 16 framed against Trilok Singh