IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 137 of 2010 1. Suresh, S/o Ganesh Prasad 2. Umesh Chandra, S/o Ganesh Prasad Both R/o Gram Dalmota, Patti Idiyakot Tehsil Lansdown, District Pauri Garhwal …..…Appellants (In Jail) Versus State of Uttarakhand ……….Opposite Party Shri M.A. Khan, Advocate, holding brief of Shri Atul Bhatt, Advocate, present for the appellants. Shri Prabhakar Joshi, Brief Holder, present for the State. with Criminal Jail Appeal No. 27 of 2010 Subhash Chandra S/o Rati Ram R/o Gram Dalmota, Patti Idiyakot Tehsil Lansdown, District Pauri Garhwal …..…Appellant (in jail) Versus State of Uttarakhand ……….Opposite Party 2 Shri I.S.Mehra, Advocate, Amicus Curiae, present for the appellant. Shri Prabhakar Joshi, Brief Holder, present for the State. with Criminal Appeal No. 138 of 2010 Manoj, S/o Prem Lal Dhyani R/o Gram Dalmota, Patti Idiyakot Tehsil Lansdown, District Pauri Garhwal …..…Appellant (in jail) Versus State of Uttarakhand ……….Opposite Party Shri Lalit Sharma, Advocate, present for the appellant. Shri Prabhakar Joshi, Brief Holder, present for the State. Hon'ble Prafulla C. Pant, J. Hon'ble V.K. Bist, J. Oral: Hon'ble Prafulla C. Pant,J. Both these three appeals are directed against the judgment and order dated 06.05.2010, passed by Sessions Judge, Pauri Garhwal, in Sessions Trial no. 136 of 2006, whereby said court has convicted accused/appellants Manoj, Suresh, Umesh, and Subhash Chandra, from the charge of offence punishable under section 302/34 Indian Penal Code, 1860 (for short IPC), and sentenced each one of them imprisonment for life, and directed to pay fine of 3 `20,000/-. 2. Heard learned counsel for the parties, and perused the lower court record. 3. Prosecution story, in brief, is that on 08.08.2006, at about 4:00 p.m., Pitamber (deceased) was coming back from Rikhadikhal to his village Dalmota, when accused/appellants Manoj, Umesh, Suresh, and Subhash armed with LATHIS intercepted him, and killed him with LATHIS and stones. The incident was witnessed by Nanda Devi (mother of the deceased), Shanti Devi (sister-in-law of the deceased), Janki Prasad (brother of the deceased), and some others. After the incident, P.W.2 Janki Prasad, brother of the deceased lodged first information report (Ex. A1) with Patti Patwari of Idiyakot Malla (Lansdowne). Since, certain revenue officials in Uttarakhand hills are empowered with police powers, the Patti Patwari took the dead body of the deceased in his possession, and prepared inquest report (Ex. A5) after preparing check report of FIR (Ex. A3). He appears to have sent the dead body for post mortem examination. P.W.3 Dr. I.S. Samant conducted post- mortem examination on 09.08.2006, and prepared autopsy report (Ex. A2). He opined that deceased had died of coma due to ante-mortem head injury. P.W.5, 4 Maharaj Singh, Investigating Officer, who was Patwari at the time of incident, on completion of the investigation submitted charge sheet (Ex. A11) against the four accused namely Manoj, Suresh, Umesh, Subhash for their trial in respect of offence punishable under section 302 IPC. 4. The Chief Judicial Magistrate, Pauri Garhwal, on receipt of the charge sheet, after giving necessary copies to the accused as required under section 207 Cr.P.C., appears to have committed the case to the court of Sessions for trial. On 10.11.2006, after hearing the parties, learned Sessions Judge, Pauri Garhwal, framed charge of offence punishable under section 302 read with 34 IPC, against all the four accused/appellants namely Manoj, Suresh, Umesh, and Subhash . Both the accused pleaded not guilty and claimed to be tried. It appears that later accused Kamla Devi, Ganesh Prasad, Jayanti Devi and Pushpa Devi were summoned by the trial court under section 319 Cr.P.C., and separate charge in respect of offence punishable under section 302 read with section 109 IPC, was framed on 03.02.2009, to which they also pleaded not guilty, and claimed to be tried. Prosecution got examined P.W.1Nanda Devi (mother of the deceased), P.W.2 Janki Prasad (informant and brother of the deceased), P.W.3 Dr. I.S, Samant (who 5 conducted post-mortem examination) P.W.4 Shanti Devi (sister-in-law of the deceased), and P.W.4 Maharaj Singh (Investigating Officer). Oral and documentary evidence was put to the accused under section 313 of Cr.P.C., in reply to which they alleged same to be false, and pleaded that they have been falsely implicated due to enmity. However, no evidence in defence was adduced. After hearing the parties, the trial court found all the four accused namely Manoj, Umesh, Suresh and Subhash guilty of charge of offence punishable under section 302 read with section 34 IPC. However, rest of the four accused who were summoned under section 319 Cr.P.C., were found not guilty, and they were acquitted of the charge. After hearing on sentence, each of the convicts was sentenced to imprisonment for life, and directed to pay fine of `20,000/- under section 302 read with section 34 IPC. Aggrieved by said judgment and order dated 06.05.2010, passed by Sessions Judge, Pauri Garhwal, in Sessions Trial No. 136 of 2006, these these appeals were filed by the convicts. 5. Before further discussion, we think it just and proper to mention the ante-mortem injury found on the dead body of Pitamber which were recorded by P.W. 3 Dr. I.S. Samant, who conducted post-mortem examination on 09.08.2006, and prepared autopsy 6 report (Ex. A2).The same are being reproduced below:- (i) Lacerated wound over left occipita temporal area 5cm above and behind the left ear lobule. Oblique 6cm X 2cm in left, skull bone fractured. (ii) Lacerated wound over right side of skull fronto parietal area. 8Cm above right eye brow. (iii) Lacerated wound over right elbow size 3cm X 1.5cm, underlying bone fractured. (iv) Lacerated wound over left elbow, 2cmX1cm skin deep. (v) Multiple small lacerated wounds and abraded contusions over body seen. P.W. 3 Dr. I.S. Samant, opined in the autopsy report (Ex. A2) that Pitamber (deceased) had died of coma due to ante-mortem injury no. 1 (head injury). From the medical evidence on record, it is established that Pitamber had died a homicidal death. Now we have to examine whether accused/appellants Manoj, Suresh, Umesh and Subhash, with common intention, committed the murder of Pitamber as suggested by the prosecution or not. 6. P.W.1 Smt. Nanda Devi (mother of the deceased) has stated that the four accused assaulted 7 Pitamber with DANDA at the time of incident. This statement has been supported by P.W.2 Janki Prasad (brother of the deceased). P.W.4 Shanti Devi (sister-in- law of the deceased) has also supported the prosecution story. However, no evidence in defence was produced to support the prosecution case. Number of independent witnesses namely Vikas, Keshi Devi, and others are mentioned as the witnesses who are said to have witnessed the incident. From cross-examination of the aforesaid alleged three eye witnesses it is clear that relation of the deceased with his wife who had left about 6/7 years back were not good. It has also come on the record that he had been accused in rape case. From the cross-examination of the aforesaid witnesses it has also come that the deceased used to take liquor. Pointing out these facts on behalf of the appellants it is pleaded that it cannot be ruled out that the deceased was killed by other persons who had enmity with him. Also, he might have died after getting fallen in a hilly terrain in a drunken state. 7. To examine the truthfulness of the three eye witnesses on part of prosecution we have to see the other corroborating piece of evidence collected by the Investigating Officer. Had there been minor lapses on the part of the Investigating Officer we could have 8 ignored them as against testimony given by the eye witnesses. But in the present case the time of registration of crime, time of inquest report, distance from which the eye witnesses could have seen the incident all appear to be doubtful. When we perused the check report (Ex. A3) of the FIR, we find that no crime number has been mentioned in the check report. We failed to understand how without registering the crime number the Investigating Officer investigated the crime ,and in none of the document prepared by the Investigating Officer crime number is mentioned. Even in the charge sheet no crime number is mentioned. Assuming for a moment that it might have been a clerical error but there are other facts on the record which create doubt as to sealing of the dead body, and sending it for post-mortem examination in a sealed condition. Inquest report (Ex. A5) shows that the preparation of inquest report started on 08.08.2006 by 7:00 p.m.. The same inquest report at the end of its first page shows that the inquest report completed on 09.08.2006 at 9:00a.m., i.e. 14 hours appear to have been taken in preparing the inquest report. Nay, not only this page 2 of the inquest report shows that only three of the Panchas had signed the inquest report, and there are no signatures as against Pancha No. 3 and Pancha No. 4. List of grounds on which the entire investigation can 9 be said to be no investigation in the eyes of the law, does not end here. Ex. A8 which is copy of the police form no. 13 shows that it was prepared between 4 and 4:15 p.m.. If we look at the post-mortem examination report, it appears that on 09.08.2006, at about 4:15 p.m., post-mortem examination had already started. It is strange that post-mortem examination started even before the papers which are necessary for starting post-mortem examination were ready. It should have taken at least 2 to 4 hours in sending the body from village where the incident had occurred to Government Hospital,Kotdwar, and thereafter some officer must have assigned the job to P.W.3 Dr. I.S. Samant whereafter post-mortem must have started after comparing the seal on the body, inquest report, police form no. 13, sketch of the dead body etc. 8. Even if we ignore all lapses on the part of the Investigating Officer, we find it difficult as to how the eye witnesses could see the incident which took place at a distance of 200 mtrs., from the place where the witnesses were standing. The Investigating Officer in the inquest report has mentioned that the distance between the village, and the place where deceased had died was 200 mtrs., above the village. 200 mtrs., distance is nothing but 1/5 km. P.W.1 Nanda Devi has stated that she saw the incident from the house of his 10 son Khaitram. Site plan (Ex. A10) shows that from 'PLACE' i.e. Khaitram's house the place of incident was not visible. P.W.4 Shanti devi, is wife of Khaitram. She too could not have seen the incident from her house. Had she seen the incident, she would not have stated that ' eukst dks firkacj] mes'k] lqjs'k vkSj lqHkk"k M.Ms ls ihV jgs FksA* Needless to say that Pitamber is deceased and Manoj is accused. With this kind of quality of evidence in investigation, we are of the view that the trial court has erred in law in convicting the accused/appellants Manoj, Suresh, Umesh, and Subhash . 9. For the reasons, as discussed above, all the three appeals deserve to be allowed. Same are allowed. Conviction and sentence recorded by the trial court under section 302 read with section 34 IPC against the accused/appellants Manoj, Suresh, Umesh, and Subhash is hereby set aside. They are acquitted of the charge. All of them are in jail since 2006. They shall be set at liberty forthwith if not required in connection with any other crime. (V.K.Bist, J.) (Prafulla C. Pant, J.) 07.04.2011 Parul