IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Government Appeal No. 68 of 2001 (Old No. 853 of 1997) State of U.P. (now State of Uttarakhand) …..…Appellant Versus 1. Smt. Jairaja, W/o Late Bhagwati Prasad R/o Quarter no. 1-2, Hydel Colony, Dhalipur P.S. Vikas Nagar, Dehradun 2. Bachhu Singh, S/o Jaswant Singh R/o Quarter No. 1-2, Hydel Colony, Dhalipur P.S. Vikas Nagar, Dehradun ……….Respondents Shri M.A. Khan Brief Holder, present for the State. Shri K.S. Verma, Advocate, and Shri Lokendra Dobhal, Advocate, present for the respondents. Hon'ble Prafulla C. Pant, J. This appeal, preferred under section 378 (3) of Code of Criminal Procedure, 1973 (for short Cr.P.C)is directed against judgment and order dated 15.11.1996, passed by Sessions Judge, -2- Dehradun, in Sessions Trial No. 140 of 1994, whereby said court has acquitted the respondents/accused Smt. Jairaja and Bachhu Singh, of the charge of offence punishable under section 304, Indian Penal Code, 1860 (for short IPC). 2. Heard learned counsel for the parties and learned counsel for the respondent no. 1 and perused the lower court record. 3. Prosecution story in brief is that one Bhagwati Prasad (husband of accused/respondent Jairaja) had died sometime back to the incident, whereafter his widow Smt. Jairaja developed illicit relations with accused/respondent no.2 Bachhu Singh. Chandrapal (deceased) also used to live in the same Hydel Colony,Dhalipur, where Bhagwati Prasad and Bachhu Singh lived. Prosecution case is that on 25.09.1993, at about 9:00 P.M., Chandrapal (deceased) protested to objectionable activities in open by Smt. Jairaja and Bachhu Singh on which quarrel took place and accused persons with rods (DANDA) gave blows to Chandrapal who suffered injuries and fell down on the road -3- and his head struck with the Chabutra ( platform). He was taken to hospital but declared dead. P.W.4 Om Prakash, brother of the deceased lodged first information report (EX. A1) at Reporting Out Post, Herbertpur, P.S. Vikas Nagar, two days after the incident on 27.09.1993, which was registered as crime no. 81/363 of 1993, against accused Smt. Jairaja in respect of charge of offence punishable under section 304 IPC. The investigation was done by P.W.6 Sub-Inspector T.S. Rana,. The post- mortem examination on the dead body of Chandrapal was conducted by P.W.7 Dr. P.K. Nautiyal, on 28.09.1993. The medical officer opined that cause of death, was, as a result of head injury. After completion of investigation, the Investigating Officer submitted charge sheet (Ex. A12) against accused/respondent Jairaja and Bachhu Singh. 4. The Magistrate, 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. Learned Sessions Judge, Dehradun, on 28.01.1995, after hearing the parties, framed charge -4- of offence punishable under section 304 IPC against accused/respondents Smt. Jairaja and Bachhu Singh, who pleaded not guilty and claimed to be tried. They took a defence that it was Chandrapal, who entered in a drunken state in the quarter of Jairaja and Bachhu Singh on which quarrel took place. It is also pleaded on behalf of the defence that Chandrapal died after suffering head injury by falling over Chabutra (platform). On this, prosecution got examined P.W.1 Shugan Chand, Chawkidar of the colony, P.W.2, Km. Sarita, daughter of the deceased, P.W.3 Puneet Kumar, son of the deceased, P.W.4 Om Prakash, brother of the deceased, P.W.5 Shambhu Prasad, a neighbour of the deceased, P.W.6 Sub-Inspector T.S. Rana, and P.W.7 Dr. P.K. Nautiyal. The oral and documentary evidence was put to the accused under section 313 Cr.P.C., in reply to which they pleaded the same to be false, and further pleaded that they have been implicated due to enmity. In defence they reiterated that it was Chandrapal (deceased) who entered in the house of Bachhu Singh and Jairaja, and attempted to commit rape. Jairaja further told separately in her statement under section 313 Cr.P.C., that on 25.09.1993, at -5- about 9 P.M., Chandrapal with intention to rape her came in a drunken state entered in her quarter and started unclothing her. On this, she attempted to save her and pushed Chandrapal. On this, Chandrapal fell down and got head injury. In defence D.W.1 Kishan Lal, was got examined in support of the defence case. The trial court after hearing the parties, failed to prove charge of offence punishable under section 304 IPC against the accused/respondents Jairaja and Bachhu Singh, and acquitted both of them from the charge. Aggrieved by said judgment and order dated 15.11.1996, passed by Sessions Judge, Dehradun, in Sessions Trial no. 140 of 1994, this appeal was filed by the State before the Allahabad High Court, on 07.04.1997. This appeal is received to this Court by transfer under section 35 of U.P. Reorganization Act, 2000 (Central Act, 29 of 2000) for its disposal. 5. Before further discussion, this Court thinks it just and proper to mention the ante-mortem injuries found on the body of Chandrapal by P.W.7 Dr. P.K. Nautiyal . The same are being reproduced from Ex. A14:- -6- (i) Contusion in an area of 7.5cmx5cm on the front of forehead of right side above eye-brow. (ii) Contusion in an area of 5cmx2cm on the forehead left side near the left eye brow. (iii) Contusion 5cmx6cm right side of face 2.5cm in front of right year. (iv) Traumatic swelling on the back of head on right side in an area of 4cmx4cm. 5cm away from right ear. (v) Traumatic swelling 2cmx1cm on the right side of the head 1cm above injury no.4. On internal examination, the medical officer found that there was haematoma present in the head. There was linear fracture on the occipital bone on the right side. He opined that deceased might have suffered the injury on 25.09.1993, at about 9:00 P.M., by a blunt object. However, on cross-examination he did not rule out the possibility that the injuries suffered by the victim could have been caused by dashing to wall or on falling over hard and blunt object. As such, as far as the medical report is concerned, it does not -7- support completely prosecution story and does not rule out the defence case taken by the accused. 6. Having gone through the statement of the witnesses of the fact, this Court finds that P.W.1 Shugan Chand has not supported the prosecution story, as he did not state as to who had beaten whom. This witness was got declared hostile. P.W.2 Sarita, P.W.3 Puneet, and P.W.4 Om Prakash are respectively daughter, son and brother of the deceased. P.W.4 Om Prakash is not an eye witness and reached in the house only after Chandrapal had died. As far as the other two witnesses namely P.W.2 Sarita and P.W3 Puneet are concerned, even their testimony as against the accused is not convincing. It is admitted by P.W.2 Sarita that she was cooking food inside her house on 25.09.1993, at about 9:00 p.m., she came out only after she heard that some quarrel is going on outside her house and could see that her father was being chased by Bachhu and Jairaja who were armed with lathi. She has admitted that her father fell down on the road. P.W.4 Puneet states that he was studying inside his room at the time of incident. According to this witness, when marpeet -8- took place between his father and the accused he came out and saw Bachhu Singh beating his father with kicks and fists while Jairaja assaulting him with DANDA (rod). This witness further states that his father also assaulted by folding chair by Jairaja in her house. Thus, testimony of the witness suggests that Chandrapal (deceased) might had gone to the house of Bachhu Singh in odd hours. As such, it cannot be ruled out that in a drunken state he might have attempted to molest Jairaja on which the incident took place. It is not clear from the evidence on record as to whether Chandrapal died of the injuries suffered by falling on the chabutra (platform) or from the assault receive from Jairaja. In the above circumstances the trial court appears to have rightly given benefit of reasonable doubt to the accused/respondents. 7. For the reasons, as discussed above, this Court does not find any sufficient reason to interfere with the impugned judgment and order passed by the trial court. -9- 8. Therefore, this appeal is dismissed. Lower court record be sent back. (Prafulla C. Pant,J) Dt. 11.08.2010 Parul