Judgment reserved IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 960 of 2001 Old Number Criminal Appeal No. 299 of 1994 Raju and another. ……Appellants. Versus State of U.P. .….Respondent. Present: Mr. D.K. Sharma, Advocate for appellant no. 1. Mr. R.P.Nautiyal, Advocate for appellant no. 2. Mr. Nandan Arya, learned AGA for the State of Uttarakhand/ respondent. Coram: Hon’ble B.C. Kandpal, J Hon’ble Nirmal Yadav, J. (Per Nirmal Yadav, J) Present appeal has been filed against the judgment and order dated 24.02.1994 passed by Additional Sessions Judge, Nainital whereby appellant Raju has been convicted under section 302 of Indian Penal Code (for short “IPC”) while appellant Makkhan has been convicted under section 302 read with section 34 IPC. They have been sentenced to undergo life imprisonment and to pay fine of Rs. 5,000/- each. In default of payment of fine, they have been ordered to undergo rigorous imprisonment for three months. Prosecution story, as unfolded by PW 2 Ram Bharose in his oral complaint, is that on 08.09.1991 at about 7.30 p.m. his son Lekhraj was coming toward his house from the fertilizer shop where he was employed. PW3 Ramai, cousin brother of complainant Ram Bharose 2 was also accompanying him (Lekhraj) on foot. When they reached near the corner of Baigul River accused Raju exhorted “sala aa gaya”. On this accused Makkhan stated that “let he be finished and his accounts be cleared.” Immediately thereafter, accused Raju fired at Lekhraj with his country made pistol, which hit on his chest. When PW2 Ram Bharose raised alarm, many persons reached the spot. According to the complainant, accused were clearly identified by him and his cousin in the light emitted by bulb fixed on the pole. Both of them tried to catch hold of the accused but they escaped towards village Bhadaipura. According to the complainant, accused Raju had enmity with Lekhraj on account of some money transaction and accused Makkhan is a friend of Raju. Accused Raju is running a tea stall near Eye Hospital, village – Bhadaipura. Complainant Ram Bharose and Ramai removed Lekhraj to the Government Hospital, Rudrapur on rickshaw. After leaving Lekhraj in the hospital, he went to the police station, Rudrapur and made oral statement, on the basis of which FIR was lodged. GD entry in this respect is exhibit Ka 12. Investigation was undertaken by PW 7 Yagya Pal Singh Solanki. He recorded the statement of the complainant and inspected the spot. He prepared scaled site plan (exhibit Ka 9). He also lifted blood stained as well as simple earth from the place of occurrence and sealed them separately in two boxes and took into possession memo exhibit K 10. He also recorded the statement of Lekhraj (injured) under section 161 Cr.P.C., copy of which is exhibit Ka 11. The investigation, thereafter, was handed over to SSI Gajendra Singh Rautela 3 (PW8). Initially the case was registered under section 307 IPC but since Lekhraj expired the case was converted to section 302 IPC. There is entry in this respect in GD no. 40 (exhibit Ka 13) at 15.25 p.m. on 9.9.1991. Statement of PW2 Ram Bharose and other witnesses was recorded by the Investigating Officer on 03.11.1991. Thereafter, challan was presented on 03.11.1991. On the basis of evidence and documents on record accused Raju was charged under section 302 IPC while accused Makkhan was charged under section 302 read with section 34 IPC to which they pleaded not guilty and claimed trial. The prosecution in order to prove its case produced as many as eight witnesses. PW1 Dr. T.C. Pant, conducted autopsy on the dead body of Lekhraj. Both PW2 Ram Bharose, father of the deceased Lekhraj and PW3 Ramai, cousin brother of Ram Bharose, are the eye witness. PW4 Dr. A.K. Rana, medico-legally examined the injured and prepared MLR exhibit Ka-3 at 7.45 p.m. on the date of occurrence itself. PW5 Constable Chandra Singh, scribed the panchayatnama on the dictation of PW6 SI K.P. Sharma. PW7 Yagya Pal Singh Solanki remained the investigating officer only on 08.09.1991 and thereafter, investigation was handed over to PW8 SSI Gajendra Singh Rautela, from 09.09.1991 to 03.11.1991 i.e. till the date on which challan was presented under section 173 Cr.P.C. in the court. PW3 Dr. A.K. Rana, in his medico legal report (exhibit Ka 3) found the following: “i. Fire arm wound on the left side of chest 2 cm X 1.5 cm depth not probed. Injury was 5 cm below 4 medial of the left clavicle. Blood was profusely coming out of the wound. Margins were inverted. Blackening around the margins was present. Injury was kept under observation. ii. Fire arm wound on the left side of upper back 1.5 cm. 3 cm X 2 cm depth not probed from midline at the level lower border of left scapula profusely bleeding was present. Margins were averted. Injury was kept under observation.” As per the doctor, injured Lekhraj, son of Ram Bharose, was aged about 25 years. He was brought by his brother Bhagwan Swaroop on 08.09.1991 at 7.45 p.m. General condition of the patient was very very poor. Pulse and blood pressure was not recordable. Body temperature was low. Deceased was dyspnoeic and semi conscious relapsing into spell of consciousness for a very short duration. In his opinion, injuries were fresh and caused by some fire arm. Patient was immediately referred for treatment to Government Hospital, Haldwani. PW1 Dr. T.C. Pant conducted the autopsy (exhibit Ka 1) on 09.09.1991 at 3.30 p.m. and found the following: “i. Fire arm wound of entry 1.5 cm X 1.5 cm. X chest cavity deep. Blood was coming out of wound. Margins were inverted, lacerated and no blackening, scorching and tattooing was present around the wound. Wound was situated on the front side of the chest on left side on second inter costal space 7.5 cm above left nipple. 6 cm medial to anterior auxiliary line of left side and on further exploration of this wound of entry, second rib left 5 side was found broken, inner muscles were lacerated underneath the wound. One upper lobe of left lung was lacerated, chest cavity was full of blood which was about 2.5 litres. Pulmonary vessels were ruptured. ii. Fire arm exit wound 3 cm X 2 cm X cavity deep on the back of the chest. Margins were averted, lacerated. No blackening, scorching or tattooing was present. Blood was coming out of the wound, which was situated 1.5 medial to left rib and 1 cm lateral to midline of left side 5th inter costal space. On further exploration 6th rib was found broken. Wound of exit was in communication with wound no. 1 direction of blood was backward downward medially.” As per the opinion of the doctor, cause of death was shock and haemorrhage as a result of fire arm injuries. Dr. T.C. Pant, in his cross examination stated that he could not tell from what distance gun shot injuries were caused. Accused when examined under section 313 Cr.P.C. denied the incriminating evidence put to them by the prosecution and pleaded false implication, however, they did not produce any evidence in their defence. We have heard learned counsel for the parties and perused the evidence and documents on record. Learned counsel for the appellant Raju argued that First Information Report is ante-timed. It is submitted that occurrence took place at 7.30 p.m., thereafter, complainant removed his son Lekhraj to the hospital in rickshaw and 6 after leaving his injured son Lekhraj in the hospital, he went to the police station to report the matter. It is argued that it is highly impossible for the complainant to remove the injured to the hospital and thereafter, reach to the police station within a short span of 15 minutes. The distance between place of occurrence and police station is 1.5 kms. He further argued that conduct of the complainant appears to be highly unnatural. It does not appear to be plausible that complainant would leave his son, who was in a critical condition in the hospital, and rush to the police station for lodging the report. According to Dr. A.K. Rana, general condition of the patient was very very poor. Pulse and blood pressure was not recordable. Body temperature was low. He was semi conscious and relapsing into spell of consciousness only for very short duration. He was having difficulty in breathing. Learned counsel argued that in such a situation no father would ever leave his son unattended. Learned counsel further argued that as per the statement of PW4 Dr. A.K. Rana Lekhraj was brought to the hospital by his brother Bhagwan Swaroop when Lekhraj was medico legally examined by him. It is pointed out that if complainant Ram Bharose was present at the place of occurrence, he would have certainly accompanied Lekhraj and remained with him in the hospital. He further pointed out that name of Ram Bharose and Ramai, PWs do not find mention in the medico legal report (exhibit Ka 3). As per prosecution, Ram Bharose and Ramai, were the only two persons present at the time and place of occurrence but their names are missing in the medico-legal report. 7 It is argued that as per the facts of the case, it is apparent that it was a case of blind murder and after the medico legal report was prepared, father of the deceased PW2 Ram Bharose was called by the police and report was lodged after due deliberation and consultation and not with promptitude as put forth by the prosecution. Inquest report was prepared on the next day i.e. on 09.09.1991. Learned counsel for the appellant no. 1 pointed out that the perusal of the inquest report (exhibit Ka 4) shows that proceeding for preparing the inquest report started on 09.09.1991 at 21.35 and completed at 12.45. It is not mentioned in the inquest report whether it was 12.45 a.m. or 12.45 p.m.. Learned counsel, therefore, argued that all the papers have been prepared on the next day i.e. on 09.09.1991 and the First Information Report was also lodged on the next day after due deliberation and consultation. Learned counsel has challenged the presence of PW 2 Ram Bharose and PW3 Ramai at the place of occurrence. It is argued that there was no occasion for both of them to be present at the place of occurrence. He referred to the statement of Ram Bharose, who admitted in the cross examination, that his house was at a distance of three miles from the place of occurrence, and he has also not disclosed any cause or reason to be present at the place and time of occurrence. Learned counsel for the appellant Raju further pointed out that statement of PW 3 Ramai was recorded by the Investigating Officer on 03.11.1991 i.e. almost after two months of the occurrence. He further argued that 8 there are material discrepancies and contradictions in the statement of PW2 Ram Bharose and PW7 Yagya Pal Singh Solanki. PW2 Ram Bharose has categorically stated that his son Bhagwan Swaroop had not reached the spot at the time of occurrence. He denied having made any statement before the Investigating Officer that his son Bhagwan Swaroop had removed Lekhraj to the Government Hospital whereas PW7 Yagya Pal Singh Solanki stated that PW2 Ram Bharose had stated before him that injured was removed to the hospital by Bhagwan Swaroop. Learned counsel for the appellant Raju further pointed out that prosecution has failed to prove that there was any source of light at the place of occurrence. Investigating Officer has not shown any electric bulb at the place of occurrence in the site plan (exhibit Ka 9). He referred to the statement of PW7 Yagya Pal Singh Solanki, who prepared the site plan on the pointing out of PW2 Ram Bharose on the night of occurrence itself. He further argued that investigation in the present case is highly tainted and PW7 Yagya Pal Singh Solanki has acted overzealously. He recorded the statement of Lekhraj (exhibit Ka 11) under section 161 Cr.P.C., while as per statement of PW4 Dr. A.K. Rana, general condition of the patient was very very poor. Pulse and blood pressure was not recordable. Body temperature was low. Deceased was dyspnoeic and semi conscious relapsing into spells of consciousness for a very short duration. In such a situation it was beyond anyone’s imagination and highly impossible that the Investigating Officer could record his statement. Even he has not taken the opinion of any 9 medical expert with regard to the fitness of the injured to the effect that he was fit to make statement. Keeping in view the general condition of the injured Lekhraj it was not possible to record such a lengthy statement of Lekhraj injured (exhibit Ka 11). He further pointed out another material defect, in the prosecution case, that fire arm with which accused Raju alleged to have fired has not been recovered. Therefore, there is no opinion of any expert or that injury received on the person of deceased could be caused by country made pistol with which the accused Raju is alleged to have been armed with. Lastly, it was argued that prosecution has miserably failed to prove any motive for causing alleged crime. As per the statement made by complainant PW2 Ram Bharose in the FIR, accused Raju was having grudge against Lekhraj on account of some money transaction. However, in the examination-in-chief, he stated that he is not aware if accused Raju was having any dispute on account of any money transaction. Similarly, PW3 Ramai in his statement admitted that he has no knowledge if Lekhraj and Raju had any dispute over the money transaction. There is no cogent and reliable evidence to prove that accused Raju was having any motive to commit murder of deceased Lekhraj. Learned counsel for the appellant no. 2 adopted the argument advanced by learned counsel for the appellant no. 1, in addition he submitted that except exhortation no other role has been assigned to appellant no. 2 Makkhan. He further submitted that from the entire reading of the evidence it is apparent on the record that there was no meeting of mind between him and accused Raju. He, 10 therefore, pointed out that at the time of occurrence, admittedly, it was dark and therefore, it was not possible for the eye witnesses to identify the assailants of Lekhraj. It appears to be a case of blind murder and he has been implicated falsely only he being friend of accused Raju. On the other hand, learned AGA argued that PW2 Ram Bharose and PW3 Ramai are close relatives of deceased Lekhraj, therefore, they would not like to falsely implicate the accused in place of real assailants of Lekhraj. Their testimony cannot be disbelieved merely because they are relatives of deceased. Both the witnesses have fully corroborated the prosecution case. They have categorically stated that on exhortation by Makkhan, accused Raju fired from his country made pistol which hit the deceased on his chest. Their testimony is fully supported by medical evidence as one entry wound and one exit wound caused by fire arm have been found on the body of deceased. He further argued that minor discrepancies pointed out by learned counsel for the appellants do not shatter the testimony of both the witnesses. As regards to the absence of source of light, learned AGA argued that accused as well as witnesses are known to each other, therefore, there is no question of mistaken identity. However, both the eye witnesses have categorically stated that they had seen the accused persons in the electric light. Merely source of light has not been shown in the site plan would not demolish the case of the prosecution. He further argued that it is well settled that if there is any lapse on the part of the investigating agency, prosecution case, which is fully supported by ocular testimony, should not be doubted. 11 We have considered the entire evidence on record and argument raised by learned counsel for the parties. The prosecution case mainly rests on the ocular testimony of PW2 Ram Bharose, father of the deceased and PW3 Ramai, cousin brother of Ram Bharose. PW2 Ram Bharose is the star witness. However, prosecution has miserably failed to prove any cause or reason of his presence at the scene of crime. According to PW2 Ram Bharose, Lekhraj was coming from his work place towards his house which is situated at village Bagwada. Complainant PW2 Ram Bharose and PW3 Ramai were also going to their house, which as per statement of PW 2 Ram Bharose was at a distance of 3 miles from the place of occurrence. Both PW2 Ram Bharose and PW 3 Ramai have failed to prove as to what was the reason or cause for their presence at the place and time of occurrence. They have not stated that they had gone to Rudrapur or some nearby place for some work or to meet somebody. Moreover, PW3 Ramai was examined by the Investigating Officer almost after two months of the occurrence and his statement was recorded on 03.11.1991. In case, he was present at the spot, his presence would certainly be noted in the hospital. In the medico legal report (exhibit Ka 3) his name does not find mention. Similarly, name of PW 2 Ram Bharose does not find mention in the medico legal report (exhibit ka3). It is quite strange that name of third person Bhagwan Swaroop finds mention in the medico-legal report. PW4 Dr. A.K. Rana categorically stated that injured was brought by his brother Bhagwan Swaroop. Bhagwan Swaroop has neither been cited nor produced in the witness box. PW 2 Ram 12 Bharose categorically stated that he never stated before the investigating officer that Lekhraj was removed to the hospital by Bhagwan Swaroop whereas PW 7 Yagya Pal Singh Solanki, investigating officer, stated that PW 2 Ram Bharose made statement before him that Bhagwan Swaroop had removed Lekhraj to the hospital. It is well settled that men may lie but circumstances do not. From the circumstances referred to above and in the absence of cogent evidence with regard to their presence at the spot, we are of the view that both PW2 Ram Bharose and PW 3 Ramai have been introduced later on. There are material discrepancies and contradictions in their statements also. PW3 Ramai stated that Ram Bharose has no son by the name of Bhagwan Swaroop. He had only one son i.e. deceased Lekhraj. He categorically stated that no person by the name of Bhagwan Swaroop had come to the spot. In the FIR (exhibit Ka 2) PW 2 Ram Bharose stated that Lekhraj was coming towards his house and Ramai was also with him on foot while this witness following them. However, while appearing before the court he stated that he and Ramai were going towards their village and thereafter, his son came on bicycle when they reached near the corner of Baigul river. Keeping in view the material contradictions pointed out by the learned counsel for the appellant, the testimony of both PW2 Ram Bharose and PW3 Ramai, who are related and highly interested witnesses, does not appear to be worthy of credence. Besides above there are several others circumstance which belies the prosecution story. Admittedly, the occurrence took place at 7.30 p.m. and it had become dark 13 at that time and the prosecution has failed to prove any evidence that there was any source of light at the scene of crime. Though PW2 Ram Bharose and PW3 Ramai have stated that electricity bulb existed at the place of occurrence on the northern side, however, electricity bulb has not been shown in the site plan (exhibit ka 9), though as per statement of PW7 Yagya Pal Singh Solanki site plan was prepared on the pointing out of PW2 Ram Bharose. Even the motive has not been proved by the prosecution. In the First Information Report PW2 Ram Bharose stated that his son was having some dispute with accused Raju on account of some money transaction, however, in his statement before the court he stated that he did not know if accused Raju and his son was having any dispute over the money transaction. Similarly, PW3 Ramai stated that he has no knowledge as to what was the grudge between Lekhraj and accused Raju with regard to money transaction. We also do not find the plea of the prosecution that First Information Report was recorded with promptitude is beyond doubt and suspicion. As per prosecution, First Information Report was lodged within 15 minutes of the occurrence. The distance between place of occurrence and the police station is 1.5 kms. The complainant did not go straight way to the police station to lodge the report. He first removed his son to the hospital in rickshaw, thereafter, he went to the police station. It does not appear to be plausible that he would be able to reach hospital and then to the police station within 15 minutes. Therefore, First Information Report has been shown to be made ante-timed, though it was actually recorded after 14 due consultation and deliberation, which casts serious doubt and suspicion in the prosecution case. Moreover, conduct of PW2 Ram Bharose was also quite unnatural, it does not appear to be plausible that any father would leave his son, who was in a critical condition in the hospital alone and would rush to the police station to lodge the First Information Report. Inquest report in the present case was prepared on the next day i.e. on 09.09.1991. It appears to have been initiated at 21.35 p.m. however, the time of completion of proceeding is stated to be 12.45. Either time of initiation or the time of completion of inquest proceedings is incorrect. Manipulation and confabulation appears to have been made in all documents later on, may be at the instance of police or on the legal advice. Investigating Officer PW7 Yagya Pal Singh Solanki also appears to have acted in a biased or overzealous manner. Though PW4 Dr. A.K. Rana stated that general condition of the patient was very very poor. Pulse and blood pressure was not recordable. Body temperature was low. Deceased was dyspnoeic and semi conscious relapsing into spells of consciousness for a very short duration. In such a situation, it is very surprising that how the investigating officer PW7 Yagya Pal Singh Solanki recorded the statement of the injured under section 161 Cr.P.C. If the condition of the injured was fit to make statement, the investigating officer should have obtained opinion of doctor and could have recorded the statement in the presence of the doctor which could certainly be treated as dying declaration and would have proved the entire prosecution case. The Investigating Officer did not make any effort to recover weapon of 15 offence or to collect empty cartridge from the place of occurrence. Both PW7 Yagya Pal Singh Solanki and PW8 Gajendra Singh Rautela have not stated even a word as to why the weapon of offence and empty cartridge were not recovered and what efforts were made by them to recover the same. In the absence of weapon of offence, it was not possible to give any opinion or pin point if injuries on the person of deceased were caused by the weapon alleged to be used by accused Raju. There is difference of opinion in the medico legal reports also. According to Dr. A.K. Rana, there was blackening around the wound whereas according to Dr. T.C. Pant, who conducted the autopsy, there was no blackening, tattooing and scorching around the wound. As per PW2 Ram Bharose accused Raju had fired at Lekhraj from a distance of about 10 feet. In case, weapon was recovered from the spot, same could be sent for the opinion of ballistic expert as to whether injuries present on the body of the deceased could be