IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Government Appeal No. 331 of 2007 (Old No. 492 of 1995) State …………Appellant Versus 1. Ramu Ram, S/o Prem Ram, R/o Village Bisar, Patti Sukolly, Tehsil and District Pithoragarh 2. Pankaj Kumar, S/o Bhupaldutt Bhatt 3. Manoj Kumar Bhatt S/o Bhairavdutt Bhatt Both R/o Village Bisar, Patti Sukolly, Tehsil and District Pithoragarh 4. Bhupendra Singh @ Pappu, S/o Modho Singh R/o Village Ancholi, Patti Pondh, Tehsil and District Pithoragarh ………Respondents Sri H.C. Pujari, A.G.A., present for the appellant / State. Sri Lokendra Dobhal, Advocate, present for the respondents. Hon’ble Prafulla C. Pant, J. Hon’ble B.S. Verma, J. [Oral- Hon’ble Prafulla C. Pant, J.] This appeal, preferred under Section 378 of Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), is directed against the judgment and order dated 15.12.1994, passed by learned Sessions Judge, Pithoragarh, in Sessions Trial No. 43 of 1991, whereby accused / 2 respondents, namely, Ramu Ram, Pankaj Kumar, Manoj Kumar and Bhupendra Singh, are acquitted of the charge of offences punishable under Section 302 read with Section 34, and one punishable under Section 201 of Indian Penal Code, 1860 (hereinafter referred as I.P.C.). (2) Heard learned counsel for the parties and perused the Lower Court Record. (3) Prosecution story in brief is that accused / respondent Pankaj Kumar was owner of Truck, Registration No. USZ9513. Accused / respondent Bhupendra Singh was his Driver and other two accused were Cleaners in the Truck. On 01.07.1991, at about 6.30 P.M., Prem Singh (P.W.1) was working on a quarry, in Village Tharkot, within the limits of Patwari Circle Sukolly, Gurna. He saw aforesaid Truck, Registration No. USZ9513 coming towards Village Bisar. Near a culvert, Trilok Chandra Kalpasi (deceased) got the Truck stopped and demanded payment of some money, which was due from accused / respondent Pankaj Kumar Bhatt. On this, on the instructions of Pankaj Kumar, his Cleaner gave a blow with iron rod on the person of Trilok Chandra Kalpasi (deceased). The incident was also seen by P.W.3-Shyam Singh. The injured was taken to District Hospital, 3 Pithoragarh, soon after the incident, where Dr. Yashpal Singh Rawat (P.W.9) recorded the Dying Declaration (Ext.B-1), at 8.25 P.M.. One and a half hours thereafter i.e. at about 9.45 P.M., Mohd. Mubin Khan (P.W.10), Naib Tehsildar, Pithoragarh, also recorded Dying Declaration (Ext.A-17) of Trilok Chandra Kalpasi. Next day, First Information Report (Ext.A-1) was lodged by Satish Chandra (P.W.2), with Kanoongo, Gurna, on 02.07.1991. (In the interior hills of Uttarakhand certain revenue officials are given police powers under U.P. Government Notification No.494/VIII-418-16, dated 07.03.1916). It appears that on the basis of the First Information Report, Crime No. 5 of 1991, was registered by Supervisory Kanoongo, Gurna, against accused / respondents Ramu Ram, Pankaj Kumar, Manoj Kumar and Bhupendra Singh, relating to offences punishable under Sections 307, 338 and 279 I.P.C.. Supervisory Kanoongo Sri Gangadutt Pandey (P.W.8) investigated the crime. On 02.07.1991, third Dying Declaration (Ext.A-3) was recorded by P.W.4-Umesh Chandra (Tehsildar, Pithoragarh). On the third day, injured Trilok Chandra Kalpasi succumbed to the injuries. The revenue officials took the dead body of the deceased in their possession on 04.07.1991 and prepared inquest report (Ext.A-18). They also prepared Police Form 4 No. 13 (Ext.A-19), Sketch of the Dead Body (Ext.A-20), and Letter to Chief Medical Officer (Ext.A-21), requesting for postmortem examination. The dead body was sent in a sealed condition for postmortem examination. On 04.07.1991, at about 10.40 A.M., Dr. P.S. Quarbi (P.W.6), conducted postmortem examination and prepared autopsy report (Ext.A-6). After postmortem examination, Medical Officer opined that Trilok Chandra Kalpasi had died on account of shock and haemorrhage as a result of ante mortem injuries. After interrogating the witnesses and on completion of investigation, the Investigating Officer submitted charge sheet (Ext.A-15) against all accused / respondents, namely, Ramu Ram, Pankaj Kumar, Manoj Kumar and Bhupendra Singh, for their trial in respect of offences punishable under Sections 302 and 201 read with Section 34 I.P.C.. (4) The Magistrate, on receipt of the charge sheet, appears to have committed the case to the court of sessions for trial, after giving necessary copies of the documents to the accused, as required under Section 207 of Cr.P.C.. The learned Sessions Judge, Pithoragarh, on 10.12.1991, after hearing the parties, framed charge of offences punishable under Section 302 read with Section 34 I.P.C. against accused / 5 respondents Ramu Ram, Pankaj Kumar, Manoj Kumar and Bhupendra Singh. A separate additional charge was framed against Ramu Ram and Manoj Kumar, relating to offence punishable under Section 201 I.P.C.. All the accused pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W.1-Prem Singh, eyewitness; P.W.2-Satish Chandra, complainant; P.W.3-Shyam Singh, declared hostile; P.W.4- Umesh Chandra, Tehsildar, who recorded third Dying Declaration; P.W.5-Bupendra Singh, witness of recovery of Truck; P.W.6-Dr. P.S. Quarbi, who conducted postmortem examination; P.W.7-Dr. Harish Chandra Pathak, who recorded injuries on the person of Trilok Chandra Kalpasi on 01.07.1991 at the time of his admission in the Hospital; P.W.8-Gangadutt Pandey, Supervisory Kanoongo, who investigated the crime; P.W.9-Dr. Yashpal Singh Rawat, who recorded first Dying Declaration; P.W.10-Mohd. Mubin Khan, Tehsildar, who recorded second Dying Declaration; P.W.11-Urba Dutt, witness of inquest report; and P.W.12-Constable Mohan Lal, another witness of inquest report. All the oral and documentary evidence was put to the accused who alleged the evidence adduced by prosecution as false and stated that they were falsely implicated due to enmity. However, no evidence in defence was adduced on behalf of 6 accused except the documentary evidence, which was Ext.B-1 and Ext.B-2 i.e. Dying Declaration made to the Medical Officer, and Bed Head Ticket. After hearing the parties, the trial court found that prosecution has failed to prove charge of offences punishable under Section 302 read with Section 34 and 201 I.P.C., beyond reasonable doubt, against any of the accused / respondents. Consequently, they were acquitted. Aggrieved by said judgment and order dated 15.12.1994, passed by learned Sessions Judge, Pithoragarh, in Sessions Trial No. 43 of 1991, this appeal was filed by State, before Allahabad High Court on 15.03.1995, where leave was granted on 27.09.1999. The appeal was received to this Court under Section 35 of U.P. Reorganization Act, 2000 (Central Act 29 of 2000) for its disposal. (5) The injuries found on the person of the deceased are recorded by Dr. Harish Chandra Pathak (P.W.7), who prepared report (Ext.A-7) on 01.07.1991, at about 8.05 P.M.. He mentioned in his report that there was a punctured wound, multiple abrasions and lacerated wounds. After death of deceased on 03.07.1991, postmortem examination was conducted on 04.07.1991 by P.W.6-Dr. P.S. Quarbi, who prepared autopsy report (Ext.A-6). He also found the corresponding 7 lacerated wounds, punctured wound and abraded contusions as ante mortem injuries at the time of postmortem examination, which are mentioned in the autopsy report. This document does show that Trilok Chandra Kalpasi (deceased) had died a homicidal death. The question before this Court is whether the accused / respondents with common intention have caused death of Trilok Chandra Kalpasi and whether they tried to conceal the evidence, as alleged by the prosecution, and has the trial court erred in law in acquitting the accused / respondents. (6) P.W.1-Prem Singh has stated that at about 6.30 P.M., on the day of incident (01.07.1991), Trilok Chandra was going towards Pithoragarh Bazar with Shyam Singh (P.W.3), when he saw Truck of accused / respondent Pankaj Kumar coming from the side of Village Bisar. All the four accused / respondents were boarding the Truck. The witness has further stated that accused / respondent Pankaj Kumar, on seeing Trilok Chandra Kalpasi got down from the Truck and protested to him as to why he had beaten his Cleaner. Thereafter, the witness has stated that accused / respondent Manoj Kumar gave a blow on the person of Trilok Chandra Kalpasi with an iron rod. On this, Shyam Singh (P.W.3) tried to 8 intervene, but he was pushed aside. The above statement of P.W.1-Prem Singh does not find corroboration from the statement of P.W.3- Shyam Singh. The said witness P.W.3-Shyam Singh has only corroborated that there had been heated exchange of words between Trilok Chandra Kalpasi and Pankaj Kumar, but he has not stated that he witnessed any ‘MAAR PEET’ (beating). This witness P.W.3-Shyam Singh was got declared hostile. (7) As such the testimony of P.W.1-Prem Singh remained uncorroborated, as P.W.3-Shyam Singh did not support the prosecution story. In these circumstances, it is necessary to see the Dying Declarations made by the deceased. The first Dying Declaration (Ext.B-1) is recorded at 8.25 P.M., on 01.07.1991, by Dr. Yashpal Singh Rawat (P.W.9), in which the deceased had stated that it was Pankaj Bhatt, who gave a blow with a rod on his head. Contrary to this, the Dying Declaration, recorded at 9.45 P.M., on the same day by P.W.10-Mohd. Mubin Khan, the then Naib Tehsildar, which is Ext.A-17 on record, shows that the deceased made a statement that Cleaner of Pankaj Kumar, who is known as Lilia, gave a blow on his head with a rod. On the next day, third Dying Declaration was recorded by P.W.4- Umesh Chandra, the then Tehsildar, Pithoragarh, 9 at 1.30 P.M., which is Ext.A-3 on record, in which he has stated that he was given blow with an iron rod by Lal Singh. The First Information Report (Ext.A-1) shows that it is lodged against Pankaj Kumar Bhatt, Manoj Kumar, Ramu Ram and Bhupendra Singh alias Pappu. It is not mentioned therein that Manoj Kumar Bhatt has second name Lal Singh. When the Truck, Registration No. USZ9513 was recovered on 03.07.1991 it also discloses the same names of the accused / respondents. We could not find from the evidence on record that Manoj Kumar (S/o Bhairavdutt Bhatt) was also known as Lal Singh. That being so, it cannot be said that the Dying Declaration recorded by Tehsildar, which is relied by the prosecution, makes out a case of murder with common intention as against any of the accused Pankaj Kumar, Manoj Kumar, Ramu Ram and Bhupendra Singh. The three Dying Declarations, brought on record, are inconsistent. The one recorded by Medical Officer Dr. Yashpal Singh Rawat (P.W.9) shows that the deceased told the Medical Officer that it was Pankaj Kumar who gave a blow with iron rod on the person of the deceased. On the other hand in the Dying Declarations recorded by Naib Tehsildar and Tehsildar, Lal Singh has been named as person who gave blow with iron rod. 10 (8) Apart from this, from the First Information Report, it appears that after giving a blow with a rod the accused / respondents left the injured at the place of incident and, thereafter, they made the Truck run over him. But P.W.1-Prem Singh, the only eyewitness, who has supported the prosecution story makes a statement that after maar peet accused / respondents took Trilok Chandra Kalpasi in their Truck. He does not disclose that Trilok Chandra Kalpasi was left at the spot after the incident and Truck was made to run over his body. (9) For the reasons as discussed above, we concur with the view taken by the trial court that the prosecution has failed to prove the charge of offences punishable under Section 302 read with Section 34 and 201 I.P.C., beyond reasonable doubt, against any of the accused / respondents, namely, Ramu Ram, Pankaj Kumar, Manoj Kumar and Bhupendra Singh alias Pappu. Therefore, this appeal is liable to be dismissed. The same is dismissed. (B.S. Verma, J.) (Prafulla C. Pant, J.) 10.06.2009 NS 11