IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Government Appeal No. 308 of 2002 State …..Appellant. Versus 1. Sanjay Kumar 2. Ishwar Chand …..Accused-Respondents. Present : Mr. M.A. Khan, Brief Holder for the State-appellant. Ms. Vijay Laxmi Phartiyal, Advocate appointed as Amicus Curiae for the accused- respondents. Coram: Hon’ble Prafulla C. Pant, J Hon’ble Sudhanshu Dhulia, J. Prafulla C. Pant, J (oral) 1. This appeal, preferred under Section 378 (4) of Code of Criminal Procedure, 1973, is directed against the judgment and order dated 28.8.2002 passed by Additional Sessions Judge/ First Fast Track Court, Haridwar, whereby the respondents Sanjay Kumar and Ishwar Chand are acquitted from the charge of offences punishable under Section 302/34 and 201 of India Penal Code, 1860. 2. Heard Mr. M. A. Khan, brief holder, present for the State and Smt. Vijay Laxmi Phartiyal Amicus Curiae for the accused-respondent, and perused the lower court record. 3. Prosecution story in brief is that on 7.4.1994 at about 10.45 pm complainant Sadi Lal (P.W.1) lodged a First Information Report at Police Station Shyampur, District Haridwar, stating that about 7-8 months before the incident, his son Rajendra (deceased) used to work as a domestic servant in the house of accused Ishwar Chand. It is also mentioned in the First Information Report that about 3-4 days before the incident, Rajendra told the complainant (P.W.1) that he is unhappy in the house of Ishwar Chand, as allegations were made against him that he had sexual relations with Radha (daughter of Ishwar Chand). It is also alleged in the First Information Report that on 7.4.1994 at about 8.00 a.m., he (complainant) was told that dead body of Rajendra is hanging from a Gooler tree with a rope. It is also alleged by the complainant in the First Information Report that when he enquired about the incident from Surajmal P.W.7 (nephew of the complainant), he disclosed that 2 accused Ishwar Chand and his son Sanjay Kumar administered liquor to Rajendra and thereafter strangulated him. It was feared by the complainant that the dead body of Rajendra has been hanged from a tree after committing his murder. On the basis of said report, Crime No. 19 of 2004 was registered at Police Station Shyampur relating to offence punishable under Sections 302, 201, 323 and 506 IPC against two accused Ishwar Chand and Sanjay Kumar (present respondents). The investigation was taken up by Sub Inspector A.B. Saifi. Dead body of the deceased Rajdendra was taken into possession by police on 7.4.1994 at about 11.45 a.m. from the jungle where the dead body was hanging, and inquest report (Exhibit A6) was prepared. The police further prepared police form no. 13 (Exhibit A7), sketch of the dead body (Exhibit A8) letter to Chief Medical Officer (Exhibit A9) and sample seal (Exhibit A10). The dead body was sent for post mortem examination. P.W. 8 Dr. Harkishan conducted post mortem examination on 8.4.1994 on the dead body of Rajendra, who found ligature mark present around the neck. The Medical Officer in the autopsy report (exhibit A2) found that the deceased had died due to asphyxia as a result of hanging. After investigating the witness, and inspecting the spot the Investigating Officer submitted charge sheet (Exhibit A 12) against both the accused Sanjay Kumar and Ishwar Chand for the trial in respect of offences punishable under Section 302, 201, 323 and 506 IPC. 4. Chief Judicial Magistrate, Haridwar, on receipt of the charge sheet, after giving the necessary copies to the accused, as required under Section 307 of Cr.P.C., committed the case to the Court of Sessions for trial. The trial court, after hearing the parties on 25.6.1996, framed charge for offences punishable under Section 302 read with 34 and under Section 201 IPC, to which both the accused pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1 Sad Lal (complainant), P.W.2 Smt. Munshi (mother of the deceased), P.W.3 Darban Singh (brother of the deceased), P.W. 4 Uttam (who found dead body hanging), P.W.5 Sant Ram (declared hostile), P.W.6 Gopal (declared hostile), P.W.7 Surajmal (grand son of the complainant), P.W.8 Dr. Harkishan (who conducted post mortem examination), P.W.9 3 Dr. N.D. Arora, P.W.10 Sub-Inspector A.B. Saifi Investigating Officer, and P.W.11 constable Bhanu Pratap Singh who prepared the check report. The oral and documentary evidence was put to the accused under Section 313 of Cr.P.C., in reply to which, they alleged the evidence adduced against them was false. However, no evidence in defence was adduced. The trial court, after hearing the parties, found that prosecution has failed to prove charge of offence punishable under Section 302/34, and that of one punishable under Section 201 IPC against either of two accused. The trial court acquitted them on the aforesaid charge. Aggrieved by the said judgment and order dated 28.8.2002 passed by Additional Sessions Judge/ First Fast Track Court, Haridwar in Sessions trial No. 313 of 1995, this appeal was filed before this Court. The leave is granted by this Court on 27.11.2002, lower court record was summoned and accused were also summoned. 5. Before further discussion, we think it just and proper to mention the ante mortem injuries mentioned by P.W.8 Dr. Harkishan in conducting post mortem of the body of the deceased, which are reproduced below: “Ligature mark present in the neck measuring 31 cm X 1 cm interrupted at the right mestoid region directing obliquely upward between the chin and the thyroid cartilage following the line of mandible. This mark is well defined on the front and left side neck deep. Base of the mark is pale and margin congested.” 6. Medical Officer opined that deceased had died due to asphyxia, as a result of hanging. The evidence of the medical officer P.W.8 Dr. Harkishan read with autopsy report suggests that it is a case of suicide. 7. P.W.1 Sadi is not an eye-witness. He has simply stated that he was told by Surajmal P.W.7, that Rajendra was administered liquor by accused Ishawar Chand and thereafter both Ishwar Chand and his son Sanjay Kumar strangulated the deceased (Rajendra). This witness (P.W.1) has proved First Information Report (exhibit A1) lodged by him. P.W.2 Smt. Munshi is mother of the deceased, and she too is not an eye 4 witness. She has stated that when she went to house of accused Sanjay Kumar to congratulate him that he has been blessed with a son, the mother of Sanjay told her that son is that of Rajendra. P.W.3 Darban Singh has stated that Rajendra was employed as servant of Ishwar Chand in his house. He has further stated that accused Ishwar Chand made Rajendra drink liquor, and thereafter, the deceased (Rajendra) was strangulated. Similar evidence has been adduced by P.W.7 Surajmal. The other two accused P.W.4 Uttam and P.W.5 Sant Ram are not witnesses of the incident. P.W.4 Uttam has stated that he saw the dead body lying hanging from a tree. P.W.5 Sant Ram has not corroborated the prosecution story and was declared hostile. P.W.6 Gopal has also not corroborated the prosecution story and was got declared hostile 8. The only testimony implicating the accused in the crime is given by P.W.7 Surajmal and P.W.3 Darban Singh. Both these witnesses have stated that Ishwar Chand administered liquor with poison to Rajendra and thereafter strangulated him. But the post mortem report shows that neither any poison was found in the body, nor was there any evidence of strangulation, and as such, the evidence adduced by the aforesaid two witnesses does not get corroborated from the evidence on record. Therefore, we do not find that the trial court has committed any error of law in holding that prosecution has not sufficiently proved charge of offences punishable under Sections 302/34 or that of 201 IPC against the accused Ishwar Chand and his son Sanjay Kumar. 9. For the reasons as discussed above, this appeal is liable to be dismissed and the same is dismissed. 10. Lower court record be sent back. (Sudhanshu Dhulia, J.) (Prafulla C. Pant, J) 24.11.2010 Kuldeep