IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 941 of 2001 (Old No. 1466 of 1999) Shakil S/o Sharif R/o Islam Nagar, Khatima, Police Station Khatima, District Udham Singh Nagar. ...…………. Appellant Versus State of U.P. (Now State of Uttarakhand) ...…………. Respondent Mrs. Pushpa Joshi, Advocate, present for the appellant. Mr. S.S. Adhikari, Asstt. Government Advocate, present for State. Coram : Hon’ble Prafulla C. Pant, J. Hon’ble Nirmal Yadav, J. Hon. Prafulla C. Pant, J. (oral) This appeal, preferred under Section 374 of the Code of Criminal Procedure, 1973 (for short Cr.P.C.), is directed against the judgment and order dated 07.06.1999, passed by III Addl. Sessions Judge, Nainital, in Sessions Trial No. 336 of 1997, whereby said court has convicted accused / appellant Shakil under Section 302 of the Indian Penal Code, 1860 (for 2 short I.P.C.), and sentenced him to imprisonment for life. He has been further convicted under Section 364 of I.P.C., and sentenced to rigorous imprisonment for a period of five years, and also directed to undergo rigorous imprisonment for the period of three years under Section 201 of I.P.C.. 2) Heard learned counsel for the parties and perused the lower court record. 3) Prosecution story, in brief, is that P.W. 1 Manju (complainant) lodged first information report on 06.11.1996, at police station Khatima, District Udham Singh Nagar, stating that on 26.10.1996, her husband Shanti Swaroop (deceased) had gone with his father Jagdish Saran (since deceased) and accused / appellant Skakil to purchase some goods in Nepal. Shanti Swaroop did not return back on that day. Complainant kept on waiting for arrival of her husband till next day. Thereafter, on 28.10.1996, she went to her father’s house and told him that Shanti Swaroop is missing. P.W. 5 Dori Lal @ Angan Lal (father of the complainant) made search for his son-in-law Shanti Swaroop, on which P.W. 4 Beni Giri and P.W. 3 Radhey Shayam told him that they saw Shanti Swaroop going with his father Jagdish Saran and accused Shakil. In the first information report (Ext. A –1), P.W. 1 Manju Devi (complainant) suspected that her husband 3 had been got killed by her father-in-law through Shakil. On the basis of said report Crime No. 439 of 1996 was registered against accused / appellant Shakil and Jagdish Saran, relating to offence punishable under Section 364 of I.P.C., on 06.11.1996. The dead body of Shanti Swaroop was said to have been recovered on the very day i.e. 06.11.1996, on pointing out of accused Shakil and Jagdish Saran. The police took the dead body (skeleton) in their possession, and prepared inquest report (Ext. A –3), and got sent the same for postmortem examination in sealed condition. A Medical Officer (not examined) of District Hospital, Pilibhit, conducted postmortem examination on the skeleton on 07.11.1996, at 04:00 P.M., and prepared autopsy report (Ext. A –7). In said report the Medical Officer has opined that he could not ascertain the cause of death. After completion of investigation, P.W. 6 Sub Inspector S.P. Singh, Investigating Officer (not examined), submitted charge sheet (Ext. A –9) against Jagdish Saran (since deceased) and accused / appellant Shakil, for their trial in respect of offences punishable under Section 364, 302, 201, 404 of I.P.C. 4) The Magistrate, on receipt of the charge sheet after giving necessary copies to the accused, as required under Section 207 of Cr.P.C., appears to have committed the case to the court of sessions for trial. On 23.02.1999, learned Sessions Judge, Nainital, after 4 hearing the parties, framed charge of offences punishable under Section 364, 302 and 201 of I.P.C., against the accused / appellant Shakil, who pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1 Manju Devi (complainant); P.W. 2 Nanak Singh (declared hostile); P.W. 3 Radhey Shyam; P.W. 4 Beni Giri; P.W. 5 Dori Lal @ Angan Lal (father of the complainant), and P.W. 6 Sub Inspector S.P. Singh (in whose presence dead body (skeleton) is said to have been recovered). The oral and documentary evidence was put to the accused under Section 313 of Cr.P.C., in reply to which he alleged that the evidence adduced by prosecution is false. However, no evidence in defence was adduced. The trial court, after hearing the parties, found accused / appellant Shakil guilty of charge of offences punishable under Section 302, 364 and 201 of I.P.C. After hearing on sentence, the convict was sentenced to imprisonment for life under Section 302 of I.P.C., rigorous imprisonment for a period of five years under Section 364 of I.P.C., and rigorous imprisonment for a period of three years under Section 201 of I.P.C. Aggrieved by said judgment and order dated 07.06.1999, passed by III Addl. Sessions Judge, Nainital, in Sessions Trial No. 336 of 1997, this appeal was preferred by the convict Shakil before the Allahabad High Court on 16.06.1999, where it was admitted on 21.06.1999. The appeal is received by this court under Section 35 of the U.P. Re-organization Act 2000 (Central Act No. 29 of 2000), for its disposal. 5 5) It is pertinent to mention here that postmortem examination (Ext. A –7) relating to the skeleton recovered shows that cause of death could not be ascertained. 6) It is a case of circumstantial evidence, in which first information report is lodged after about 11 days of the incident. P.W. 1 Manju Devi (widow of the deceased) has stated that her husband Shanti Swaroop had gone with accused Shakil, to Nepal to make certain purchases, on a bicycle, but he did not return home till next day, on which she went to her father’s house and search was made. The witness further states that Beni Giri (P.W. 4) and Radhey Shaym (P.W. 3) disclosed to her father that they had seen Shanti Swaroop with his father Jagdish Saran and Shakil on 26.10.1996. The witness further states that she got lodged first information report (Ext A –1). However, she failed to explain as to why she did not lodge missing report relating to her husband when he did not return home for a period of ten days. In the present case delay in lodging the first information report is not at all explained by any of the witnesses. 7) P.W. 3 Radhey Shyam and P.W. 4 Beni Giri, who stated that they had last seen deceased with accused Shakil on 26.10.1996, do not appear to be natural witnesses. Both of these witnesses belong to 6 District Pilibhit. They alleged that they had seen the deceased with accused near Banbasa barrage (in District Udham Singh Nagar). It has come on the record that the two places are at a distance regarding which there is no explanation as to how the witnesses were present in the barrage on 26.10.1996. As such, both P.W. 3 Radhey Shyam and P.W. 4 Beni Giri are chance witnesses. 8) As far as the alleged recovery of dead body (skeleton) of the deceased is concerned, though P.W. 6 Sub Inspector S.P. Singh has stated that the recovery was made on jointly pointing out by the two accused, namely Shakil and Jagdish Saran, but P.W. 2 Nanak Singh has stated that it was only Jagdish Saran on whose pointing out the skeleton was recovered. He has categorically stated that the recovery was not made at the instance of Shakil. 9) No motive has been shown by the prosecution as to why Shakil would kill Shanti Swaroop. Apart from this, there are material contradictions in the statement of P.W. 3 Radhay Shaym and other witnesses, which further creates doubt as to the truthfulness of the prosecution case. 10) Having reassessed the entire evidence on record, we are of the view that in the present case, the 7 prosecution has totally failed in proving the charge against accused / appellant Shakil. The trial court has erred in law in convicting appellant Shakil under Section 302, 364 and 201 of I.P.C. In the above circumstances, the appeal deserves to be allowed. Accordingly, the appeal is allowed. The impugned judgment and order dated 07.06.1999, passed by III Addl. Sessions Judge, Nainial, in Sessions Trial No. 336 of 1997, is set aside. Conviction and sentence recorded by the trial court against the accused / appellant Shakil also stand set aside. He is acquitted of charge of offences punishable under Section 302, 364 and 201 of I.P.C. If he is in jail, he be set at liberty forthwith, provided he is not wanted in connection with any other crime. Lower court record be sent back along with copy of this judgment. (Nirmal Yadav, J.) (Prafulla C. Pant, J.) Dt. September 01, 2010. H. Negi