Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 924 of 2001 Old Criminal Appeal No. 816 of 1999 (1) Data Ram Chawad (2) Karan Das Both the appellants the son of Gurumukh Ram R/o Village Kankpur, P.S. Kichchha, Presently District Nainital …Appellants Versus State of U.P. (Now State of Uttarakhand) …Respondent Present: Mr. R.S. Sammal, Advocate with Mr. Prem Kaushal and Mr. B.S. Bhandari, learned counsel for the appellants Mr. S.S. Adhikari, learned A.G.A. for the State. Hon’ble Prafulla C. Pant, J. Hon’ble Nirmal Yadav, J. Oral: Nirmal Yadav, J. Accused-appellants Data Ram and Karan Das have challenged the judgment and order dated 9th April 1999 passed by the District & Sessions Judge, Nainital in Sessions Trial No. 108 of 1994 whereby both the accused appellants have been convicted under Section 302 of the Indian Penal Code (for short I.P.C.) and sentenced to life imprisonment and fine of Rs. 5,000/- each. In default of payment of fine they have been ordered to undergo two years rigorous imprisonment. The criminal law was set in motion on the written complaint (Ex. Ka-1) submitted by PW-1 Satish Kumar Narang, brother of deceased Kashmiri Lal before Inspector Incharge Police Station Kichchha. The accused Data Ram and deceased Kashmiri Lal are co-brothers. Accused Data Ram was married to Phoola Devi while her sister Beena Devi was married to Kashmiri Lal. According to the complainant both Beena Devi 2 and Phoola Devi were daughters of Hansraj Batra. Hansraj Batra had no son, therefore, he had adopted Manish Kumar son of Beena Devi and deceased Kashmiri Lal. Hansraj Batra had executed a Will in favour of Manish in the year 1982. He also purchased land measuring four and a half acres in the name of Manish Kumar. He also purchased two and half acres of land in the name of his wife Maali Bai who was still alive. He also purchased land measuring four and half acres in the joint name of his daughters Beena Devi and Phoola Devi, however, the said land was still in possession of Manish Kumar. Accused Data Ram had filed a case before the Revenue Authority claiming half share of the entire land belonging to Hansraj Batra, which was decided against him in the court of A.D.M. Nainital and appeal filed by him was pending before the Commissioner, Nainital. The matters was fixed for 23rd November 1993 in the civil court, Rudrapur and 25th November 1993 in the Commissioner’s court. On 22nd November 1993 at about 8:15 p.m. deceased Kashmiri Lal along with his brother Satish Kumar Narang was coming back from his shop in Siddhu Market towards the house of Kashmiri Lal. Kashmiri Lal was on his own cycle and was ahead of complainant Satish Kumar Narang, who was on his own cycle. After crossing Baheri road they had approached Awas Vikas Road and when they reached near the water tank of Block no. 1, accused Data Ram along with his brother Karandas came on their motorcycle from the front side and stopped the motorcycle in front of them. Thereafter accused Data Ram came towards backside of Kashmiri Lal and fired a shot towards him. On receiving the firearm injury Kashmiri Lal fell down from the cycle, he walked about ten paces towards his house but again fell down and at that point of time accused Karandas fired a shot on the left side temple of Kashmiri Lal. On receiving the said injury Kashmiri Lal died instantly. On hearing the firearm 3 shot Deewan Chand resident of Awas Vikas Colony and Mohan Lal resident of Azad Nagar and many other persons were attracted and reached the spot. They saw Data Ram and Karandas running away from the spot after causing injuries to Kashmiri Lal. After leaving the dead body of his brother at the spot PW-1 Satish Kumar Narang went and reported the matter to the police in police station Kichchha. On the basis of said complaint (Ex. Ka-1) Chick F.I.R. (Ex. Ka-4) was recorded, an entry in this respect was made in the General Diary. While recording the Chick F.I.R. Head Moharir questioned PW-1 Satish Kumar Narang with regard to the source of light in which they identified the assailants, and the complainant replied that the electricity bulb was emitting light on the road and there was electric light in colony as well. PW-5 Sub Inspector N.S. Tyagi on receiving the information about the incident went to the spot and prepared Panchayatnama (Ex. Ka-7) and sealed the dead body of Kashmiri Lal. He also prepared police form no. 13 (Ex. Ka-9) and sketch of the dead body (Ex. Ka-8) and sent the same along with the application (Ex. Ka-11) and (Ex. Ka-12) for conducting the postmortem along with the sample seal to the Medical Officer, Haldwani. He also picked up butt and body of 12 bore pistol from the place of occurrence, bloodstained earth, simple earth, one Tickli, and other articles. They were separately made into parcels and sealed with his seal and taken into possession vide Ex. Ka13 to Ka-16. After sending the dead body of Kashmiri Lal for postmortem, bloodstained clothes and other articles of the deceased, which were made into parcel and handed over to PW-5 Sub Inspector N.S. Tyagi, which he sent for Chemical Examination to the Forensic Science Laboratory, Agra, the report of the Forensic Science Laboratory received in this respect is Ex. Ka-18. 4 The investigation was conducted by PW-4 Inspector Raj Veer Singh, who went to the spot and recorded the statements of the witnesses. On inspection of the spot, he prepared site plan Ex. Ka-5. He arrested accused Karandas on 25th November 1993, an entry (Ex. Ka-6) in this respect was entered in the General Diary. Accused Data Ram absconded after the occurrence, however, he surrendered in the court on 7th December 1993. On completion of the investigation, the challan was presented and accused-appellants were charge sheeted under Section 302 of the I.P.C. to which they pleaded not guilty and claimed trial. In order to prove its case the prosecution produced as many as five witnesses. PW-1 Satish Kumar Narang and Mohan Lal are the eyewitnesses. PW-3 Dr. Anoop Kumar Tiwari conducted the autopsy on the dead body of Kashmiri Lal, PW-4 Inspector Raj Veer Singh and PW-5 Sub Inspector N.S. Tyagi are the Investigating Officers in this case. When examined under Section 313 Cr.P.C. the incriminating evidence was put to the accused-appellants, which they denied in toto and pleaded false implication. Accused Data Ram admitted that he was married to the elder daughter of Hansraj Batra while his younger daughter Beena Devi was married to Kashmiri Lal but he denied Manish Kumar having been adopted and any Will being executed in his favour by Hansraj Batra. He also denied that any dispute with regard to will was pending or he lost any court case in such matter. He denied his presence at the place of occurrence and stated that he had gone to Saharanpur on that day and after coming back from there he surrendered before the court. Accused Kanandas also endorsed the statement made by accused Data Ram and he 5 also stated that he was picked up by the police during the night on 22.11.1993 at about 11:00-11:15 a.m. In defence the accused produced Khatauni of village Alakhdevi (Ex-Kha-1). As per the said document 4.21 hectare land was entered in the name of Hansraj Batra however, his name was deleted and the name of Manish Kumar has been entered as successor. It also finds mention that as per order no. 329 of 1996-97 decided on 16th June 1997 the name of Phoola Devi wife of Data Ram has been entered with regard to land measuring 2.011 hectare. Before further discussion, we would like to mention the injuries on the person of Kashmiri Lal. PW-3 Dr. Anoop Kumar Tiwari conducted the postmortem on the dead body of Kashmiri Lal on 23rd November 1993 at 12:30 noon and the postmortem report in this respect is Ex. Ka-2. The doctor found the following ante mortem injuries on the person of the deceased: - (i) Wound of entry over left side face 3 c.m. x 2 c.m. over zygomatic bone margins were inverted. On exploration fracture of zygomatic bone was found. (ii) Wound of exit over posterior aspect of skull in an area of 2.5 c.m. x 2 c.m. extending from 4 c.m. above pinnae of right ear upto mastoid region of left side and vertex of skull to base of skull. Brain matter was coming out from the skull. On exploration one Tickli and one cap were found inside the brain cavity. (iii) Lacerated wound 3 c.m. x 1 c.m. over chin. (iv) Abrasion 10 c.m. 2 c.m. middle of right upper arm. 6 (v) Wound of entry 1 c.m. x 1 c.m. on the left side of back 3 c.m. lateral to spinal thoracic vertebra 12, to lumber vertebra 1 region. Margins inverted oval in appearance. (vi) Wound of exit 2 c.m. x 2 c.m. left side chest 3 c.m. above from left nipple. Margins inverted. One tickli found over wound of exit. On exploration fracture of third rib interiorly. There is collapse of left lung with laceration of upper lobe and fracture of 9th rib posteriorily. Left side of chest cavity was found full of blood. (vii) Lacerated wound 10 c.m. x 3 c.m. on the right forearm, 20 c.m. above elbow joint. (viii) Lacerated wound 3 c.m. x 1 c.m., 4 c.m. above injury no. (vii) on right forearm. On internal examination of the dead body, left ventricle of the heart was found empty while there was some blood in the right ventricle of heart. Semi digested food was found in the stomach. Digested food was found in the small intestine while large intestine contained faecal matter. Pancreas, spleen and kidney were pale and liver was empty. Cause of death was on account of shock and excessive hemorrhage due to ante mortem injuries. Duration of death was about half or one day prior to the postmortem, which could have occurred at about 8:00 a.m. on 22nd November 1993. The injuries could be caused by firearm. The death could have been caused by injury no. 1 and 5. When cross-examined this witness could not specifically state as to what was the firearm used for causing the injuries. Injuries no. 3, 4, 7 and 8 could have been caused by some blunt object. However, these injuries could also be caused by fall. 7 The trial court after taking into consideration the entire evidence and documents available on record convicted and sentenced the accused appellant as referred to in paragraph-1 of the judgment. We have heard Mr. R.S. Sammal, Advocate with Mr. Prem Kaushal and Mr. B.S. Bhandari, learned counsel for the appellants, Mr. S.S. Adhikari, learned A.G.A. for the State and perused the material available on record. Learned counsel for the appellants argued that the prosecution has miserably failed to prove its case beyond reasonable shadow of doubt. It is argued that both PW-1 Satish Kumar Narang and PW-2 Mohan Lal are highly interested and related witnesses. Their presence at the place of occurrence is highly unnatural and improbable. It is further argued that PW-1 Satish Kumar Narang is the real brother of deceased Kashmiri Lal while PW-2 Mohan Lal is cousin brother of Kashmiri Lal i.e. son of his father’s sister. It is also proved from their own statements that both of them are chance witnesses. Learned counsel for the appellants further submitted that deceased Kashmiri Lal was resident of Awas Vikas Colony where PW-1 Satish Kumar Narang was residing at Sunhari Farm. His presence at the shop of Kashmiri Lal is highly doubtful. PW-1 Satish Kumar Narang was working as Munim and as per his statement he had come to the shop of his brother Kashmiri Lal on that day about 2:00 p.m. and thereafter he remained with him at the shop till the place of occurrence. He has not been able to explain and specify as to what was the reason for his staying at the shop of his brother. It is not the case of the prosecution that PW-1 Satish Kumar Narang had been visiting the shop of his brother Kashmiri Lal everyday in normal course of his working. He was working as Munim in the Mandi and his place of working is not near the shop of Kashmiri Lal nor it is 8 his case that the shop of Kashmiri Lal falls on the way from the place of his working. This witness could not give sufficient reason for his presence along with his brother at his shop and to accompany him from the shop and to follow him till the place of occurrence. Even the residence of both the persons i.e. deceased Kashmiri Lal and PW-1 Satish Kumar Narang are not located at the same place. House of Kashmiri Lal does not fall on way to the house of PW-1 Satish Kumar Narang and the distance between Awas Vikas Colony and Sunhari Farm is about half a kilometer. Thus his presence at the place of occurrence does not appear to be natural. According to this witness, F.I.R. was scribed by him at his house as he left the dead body at the spot and went to his house where he had written the report and then went to the police station. The conduct of this witness leaving the dead body at the spot and going to his house first where he is alleged to have scribed the complaint and then going to police station appears to be quite unnatural. Moreover this witness could also not specify as to what was the firearm carried by the accused persons with which they caused injuries on the person of deceased while deposing before the court. From the abovementioned circumstances, the presence of PW-1 Satish Kumar Narang appears to be highly doubtful. As regards PW-2 Mohan Lal, it is not disputed that he is also closely related to deceased Kashmiri Lal. He is resident of village Azad Nagar, Kichchha. This witness has not been able to disclose any plausible reason for his presence at the place of occurrence. According to him, he had gone to the house of Deewan Chand. He left at 8:00-8:15 p.m. along with Deewan Chand from his home and when they reached on the main road, he saw Kashmiri Lal and PW-1 Satish Kumar Narang going on their respective cycles. This witness has tried to make improvements in the prosecution case by stating that it was the moonlit night. He has also not specified the nature of weapon 9 with which the injuries were caused on the person of Kashmiri Lal. The statement of this witness is also contradictory to the statement of PW-1 Satish Kumar Narang and to the F.I.R. According to him, accused Data Ram had not come in front of Kashmiri Lal, he had taken a round from his front and then came on the backside and caused injuries from the backside of Kashmiri Lal. The conduct of both the eyewitnesses i.e. PW-1 Satish Kumar Narang and PW-2 Mohan Lal appears to be highly unnatural as both of them did not try to catch hold of accused Data Ram, who is undisputedly an old man of 60 years while both the witnesses are much younger in age. According to PW-2 Mohan Lal, Satish Kumar Narang remained at the spot after the occurrence for about half an hour. He also remained with Satish Kumar Narang at the spot for about half an hour and thereafter Satish Kumar Narang went to the house of Kashmiri Lal and not to his house whereas as per PW-1 Satish Kumar Narang immediately after the occurrence he went to his house and had scribed the report and then went to the police station for reporting the matter at 8:50 p.m. i.e. within 35 minutes of the occurrence. In case the statement of PW-2 Mohan Lal is correct then PW-1 Satish Kumar Narang remained at the spot for half an hour after the occurrence i.e. up to 8:45 p.m., therefore, it was not possible for him to report the matter at 8:50 p.m. in the police station. Learned counsel for the appellant further argued that there was actually no source of light at the place of occurrence; therefore, it was not possible for any of the witness to identify the assailants. There is no mention about the light in the first information report. It appears that the prosecution in order to make out a case that the place was having source of light, a question has been added at the end of the Chick F.I.R. From the evidence on record we find that the prosecution has tried to improve its case from time to time. While deposing 10 before the court PW-1 Satish Kumar Narang stated that there was electricity pole near the place of occurrence while PW-2 Mohan Lal made further improvement saying that it was a moonlit night. However, from the perusal of statement of PW-5 Sub Inspector N.S. Tyagi it appears that he had arranged for a Petromax at the time of preparation of inquest report. This statement appears to be quite contradictory, if there was any electric light at the place of occurrence what was the need for arranging a petromax at the time of preparation of the inquest report. A perusal of the site plan (Ex. Ka-5) and the testimony of PW-2 Mohan Lal it appears that there was a provision store and other shops near the place of occurrence. Even there are some houses shown to be located near the place of occurrence and many persons might have been attracted at the spot after hearing the shots fired by the firearm. Even according to PW-2 Mohan Lal as well as PW-1 Satish Kumar Narang many other persons were attracted at the place of occurrence but except the interested witnesses namely, Satish Kumar Narang and Mohan Lal, no other person has been examined and cited as witness by the prosecution. PW-2 Mohan Lal categorically stated that Deewan Chand was accompanying him. Deewan Chand was not related to any of the witness or to the deceased but he has also not been cited as witness. Thus it clearly shows that except the interested and related witnesses, no other independent person has been examined, which certainly creates doubt in the prosecution case. The deposition as discussed above by both the eyewitnesses i.e. PW-1 Satish Kumar Narang and PW-2 Mohan Lal does not appear to trustworthy and credible. Even the motive for causing the death of Kashmiri Lal does not appear to be plausible. By committing murder of 11 Kashmiri Lal, Data Ram would not have been benefited. As per the prosecution case, Hansraj Batra father-in-law of Data Ram and Kashmiri Lal had adopted Manish Kumar and had also executed a Will in his favour. As a result of death of Kashmiri Lal neither Data Ram nor his wife would inherit property owned by Hansraj Batra. If Manish Kumar was murdered by Data Ram it would have certainly been a strong motive as after his death, the property of Hansraj Batra would have devolved upon his two daughters namely, Beena Devi w/o Kashmiri Lal and Phoola Devi w/o Data Ram. Moreover accused Karandas did not have any motive at all to support his brother Data Ram in committing the crime. He would not have gained anything on account of death of Kashmiri Lal. Moreover as per the statement of PW-1 Satish Kumar Narang, Karandas was arrested during the night on 22nd November 1993 from his house. If accused Karandas was involved in the crime, he would not have been available at his house during the said night. The most clinching evidence in the present case is the report of Forensic Science Laboratory, Agra (Ex. Ka-18). As per the said report none of the firearm alleged to have been recovered at the behest of accused persons were used in the commission of crime. None of the witness has specifically stated as to what was the firearm used in the commission of crime. They have simply stated that the accused fired a shot but as to whether it was a pistol, revolver or a rifle has not been specified by any of the witness. Besides the above circumstances, the medical evidence also does not support the prosecution case. As per the eyewitnesses i.e. PW-1 Satish Kumar Narang and PW-2 Mohan Lal, Karandas had fired on the temple of Kashmiri Lal and thereafter Kashmiri Lal died at the spot. In case the injury was caused on the temple, there would have been blackening and 12 tattooing around the said injury but there was no such blacking and tattooing found on the temple region of the deceased. Keeping in view the presence of the eyewitnesses having been doubtful coupled with the fact that the alleged recovered firearms have not been proved to be used in the commission of crime along with other circumstances referred to above, we are of the view that the prosecution has not been able to prove its case beyond reasonable shadow of doubt. Accordingly the appeal filed by the accused appellants is allowed. Judgment and order dated 9th April 1999 passed by the District & Sessions Judge, Nainital in Sessions Trial No. 108 of 1994 is set aside. Appellants are on bail; they need not surrender before the trial court. Their bail bonds are ordered to be cancelled and sureties are discharged. Registry is directed to send back trial court record. (Nirmal Yadav, J.) (Prafulla C. Pant, J.) VKG 17.09.2010