IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 395 of 2001 (Old No. 1912 of 1997) 1. Tinu @ Bhanwar Singh S/o Raj Pal 2. Kaka @ Kulbir S/o Sukhbir 3. Babloo @ Bhupendra S/o Jabar Singh All resident of Paniyala, P.S. Gangnahar, Haridwar. ...…………. Appellants Versus State of U.P. (Now State of Uttarakhand). ...…………. Respondent Mr. S.K. Agarwal, Sr. Advocate, assisted by Mrs. Pushpa Joshi, Mr. Rajendra Singh, Mr. Manish Arora and Mr. Pramod Tewari, Advocates, present for the appellants. Mr. M.A. Khan, Brief Holder, present for respondent State. Hon’ble Prafulla C. Pant, J. This appeal, preferred under Section 374 of the Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), is directed against the judgment and order dated 18.09.1997, passed by Addl. Sessions Judge, Roorkee, in Sessions trial No. 91 of 1989, whereby said court has convicted appellants Tinu @ Bhanwar Singh, Kaka @ Kulbir and Babloo @ Bhupendra under Section 394 read with Section 397 of the Indian Penal 2 Code, 1860 (hereinafter referred as I.P.C.). All the three appellants have further been convicted under Section 304 read with Section 34 of I.P.C. Each one of the appellants has been sentenced to undergo rigorous imprisonment for a period of ten years and also directed to pay fine of ` 5,000/- (under Section 394 read with Section 397 of I.P.C.), and rigorous imprisonment for a period of ten years (under Section 304 read with Section 34 of I.P.C.). Both the sentences were directed to run concurrently by the trial court. 2) Heard learned counsel for the parties and perused the lower court record. 3) Prosecution story, in brief, is that on 09.06.1988, complainant Sunil Kumar (P.W. 1) got lodged first information report (Ext. A –1) at police station Kotwali Roorkee, at 10:30 hours, alleging that on said day at about 08:45 P.M., four persons entered in his house, and committed robbery after tying the complainant, his brother Anil Kumar and uncle Janeshwar Das. It is also alleged by the complainant that all the family members, including the women, were threatened of dire consequences by the miscreants who were armed with sharp edged weapons. It is also stated that Baseshwar Dayal (deceased), father of the complainant, meanwhile came from outside and knocked the door, as the miscreants have closed the door from inside. In an attempt to escape from the house two of the miscreants 3 inflicted knife blows on the person of Baseshwar Dayal, and ran away. Baseshwar Dayal was immediately taken to Civil Hospital, Roorkee, where a surgery was conducted on him, but he succumbed to the injuries during surgery. On the basis of the report (Ext. A –1) which was lodged before death of Baseshwar Dayal, a check report (Ext A –6) was prepared at police station and Crime No. 184 of 1988 was registered against four persons, including accused / appellants Tinu @ Bhanwar Singh and Kiran (since deceased), as the complainant in his first information report disclosed that out of the four, he could identify said two, who were residents of his own village Paniyala. Investigation was taken up by P.W. 5 Sub Inspector S.C. Pachauri. The crime which was initially registered in respect of offences punishable under Section 394 and 307 of I.P.C. and later converted into one punishable under Section 396 of I.P.C. (after death of the injured). During investigation the police took dead body of the deceased in their possession, prepared inquest report (Ext. A –3), sketch of the dead body (Ext. A –15), police form No. 13 (Ext. A –14), and letter to the Chief Medical Officer (Ext. –13) requesting for postmortem examination. The dead body of Baseshwar Dayal was sent for postmortem examination. Dr. K.P. Sarabhai (P.W. 4) conducted postmortem examination on dead body of the deceased and prepared autopsy report (Ext. A –5) on 10.06.1988, at 02:00 P.M. He recorded as many as seven ante mortem injuries and opined that 4 shock and haemorrhage due to the ante mortem injuries was the cause of death of the deceased. Before that, at the time of admitting the patient (Baseshwar Dayal) in the hospital, stab wound was recorded in injury report (Ext. A –4) by Dr. S.K. Srivastava (P.W. 3). Dying declaration of the deceased (Ext. A –16) was recorded by the Tehsildar, Roorkee. After interrogating the witnesses, the Investigating Officer submitted charge sheet (Ext. A –10) against the accused Kiran (since deceased), Tinu @ Bhanwar Singh (appellant No. 1), Kaka @ Kublir (appellant No. 2), Babloo @ Bhupendra (appellant No. 3), and two others Pradeep and Ashok. The Magistrate on receipt of the charge sheet, after giving necessary copies to the accused, as required under Section 207 of Cr.P.C., appears to have committed the case to the court of sessions, for trial. 4) Learned Addl. Sessions Judge, after hearing the parties, framed charge of offence punishable under Section 396 of I.P.C. against all the six accused on 30th of March 1989, to which they pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1 Sunil Kumar (complainant and eyewitness); P.W. 2 Awadesh Kumar (brother of the deceased and eyewitness); P.W. 3 Dr. S.K. Srivastava (who examined the injuries of Baseshwar Dayal); P.W. 4 Dr. K.P. Sarabhai (who conducted the postmortem examination); P.W. 5 Sub Inspector S.C. Pachauri (who investigated the crime); P.W. 6 J.K. Gupta, Pharmacist (who proved 5 bed head ticket of the deceased), P.W. 7 Sub Inspector B.M. Singh; and P.W. 8 Constable Ram Singh. The oral and documentary evidence was put to the accused under Section 313 of Cr.P.C., in reply to which they alleged that they have been falsely implicated in the crime. However, no evidence in defence was got adduced on behalf of the accused. The trial court, after hearing the parties found that the prosecution has successfully proved charge of offence punishable under Section 394 read with Section 397, and one punishable under Section 304 read with Section 34 of I.P.C. against the three accused Tinu @ Bhanwar Singh, Kaka @ Kulbir and Babloo @ Bhupendra, and after hearing on sentence, each one of them was sentenced to rigorous imprisonment for a period of ten years on each count. They were further directed to pay fine of ` 5,000/- under Section 394 read with Section 397 of I.P.C. Aggrieved by said judgment and order dated 18.09.1997, passed by Addl. Sessions Judge, Roorkee, in Sessions Trial No. 91 of 1989, this appeal is preferred by the convicts before the Allahabad High Court on 13th of November 1997, where it was admitted on 2nd of December 1997. The appeal is received by transfer to this court under Section 35 of the U.P. Re- organization Act, 2000 (Central Act No. 29 of 2000), for its disposal. 5) Before further discussion, this court thinks it just and proper to mention here the ante mortem injuries 6 found by P.W. 4 Dr. K.P. Sarabhai on 10.06.1988, on the dead body of Baseshwar Dayal, which are recorded in autopsy report (Ext. A –5). The same are being reproduced below: “ i) Stitched wound 19 cm X 9 cm stitches in front of upper part of abdomen along with unblicus. ii) Stitched wound with two stitches alongside abdomen upper part. iii) Stitched wound 2 cm X 1 cm in outer aspect of lower part of chest. iv) Incised wound 3 cm X ½ cm X muscle deep on back of right upper arm 9 cm above right elbow joint. v) Incised wound 2 cm X 1 cm X muscle deep, 2 cm below injury No. (iv). vi) Incised wound 2½ X 1 cm X bone deep on right side chest outer part 8 cm below. vii) Incised wound 3 cm X 1 cm X bone deep, 10 cm towards injury No. (vi). ” The Medical Officer opined that cause of death is shock and haemorrhage as a result of ante mortem injuries. 6) It is pertinent to mention here that before the death of Baseshwar Dayal when he was taken to the hospital, P.W. 3 Dr. S.K. Srivastava on medical examination found following stab wound injury on the person of the injured. The same is reproduced below: 7 “Stab wound 3 cm X 2 cm on left sub costal region. Omentum coming out and is covering the wound.” The injuries shown in the autopsy report except the one which corresponds to the stab wound injury, appear to have been caused due to the surgery which the deceased underwent after the incident. From the medical evidence discussed above it is proved on the record that the deceased died a culpable homicide. 7) Now, this court has to see whether, the prosecution has proved that the accused / appellants Tinu @ Bhanwar Singh, Kaka @ Kulbir and Babloo @ Bhupendra were the persons who committed robbery, and caused death of Baseshwar Dayal, or not. 8) P.W. 1 Sunil Kumar, who is an eyewitness and complainant of the case, has narrated the prosecution story that on the day of incident four persons entered in his house and committed robbery, after tying him, his brother and father’s elder brother, and threatened the other female members of the family. The witness has further stated that articles, namely three pair of gold earrings, three H.M.T. watches, one pair of silver anklets, two pair of gold tops, three gold finger rings, four gold bangles, one necklace, one finger ring, one pair of ear rings and cash amounting to rupees three thousand were looted by the robbers. It is also stated by him that meanwhile his father Baseshwar Dayal came from 8 outside and knocked the door, as the doors were closed from inside. The accused while fleeing from the place of incident inflicted knife blows on the person on Baseshwar Dayal, and ran away. The witness has also stated that out of six, two of the robbers who were inside the house were Kiran (since deceased) and Tinu with other two, and the rest were outside the house. 9) P.W. 2 Awadesh Kumar, brother of the complainant, has corroborated the prosecution story narrated by his brother. 10) However, the evidence adduced by P.W. 1 Sunil Kumar and P.W. 2 Awadesh Kumar does not appear to be reliable and trustworthy for the following reasons: i) In the dying declaration recorded by the Tehsildar, Roorkee on 09.06.1988, the deceased had not named anyone out of the robbers, as such, it appears doubtful that the robbers who belong to the village of the deceased and the complainant had committed the robbery after coming to Roorkee in the house of their co-villager. ii) The statement under Section 161 of Cr.P.C. of the deceased purported to have been recorded by the Investigating Officer is totally inconsistent to the dying declaration recorded by the Tehsildar. 9 iii) There is no recovery of any of the looted property from any of the accused. iv) If the accused belonged to the village of the complainant there should have been no difficulty in naming all of them in the first information report. v) P.W. 5 Sub Inspector S.C. Pachauri, Investigating Officer, in his cross examination discloses names of nine persons involved in the dacoity figured during investigation. It is strange that the complainant has come up with the story of six persons, while the statement of the Investigating Officer suggests that there were as many as nine persons involved in the crime. vi) For the reasons best known to the prosecution the only independent eyewitness Vinod Mistry, regarding whom there is mention in the dying declaration of the deceased, was not examined by the prosecution. 11) It has come on the record that earlier also there had been robbery in the house of the complainant, and from the statement of the complainant it appears that they suspected that the villagers who were inimical to the complainant and his family have committed the crime, but actually they have committed the crime or not, is not proved on the record beyond reasonable doubt. 12) For the reasons as discussed above, on close scrutiny and careful examination of the statements of the 10 witnesses and the dying declaration recorded by the Investigating Officer, this court is of the view that it cannot be said that the charge relating to offence punishable under Section 394 read with Section 397, and one punishable under Section 304 read with Section 34 of I.P.C. against any of the accused / appellants Tinu @ Bhanwar Singh, Kaka @ Kublir and Babloo @ Bhupendra is proved beyond reasonable doubt. As such, all the three accused / appellants are entitled to benefit of reasonable doubt. Accordingly, the appeal is allowed. The judgment and order dated 18.09.1997, passed by Addl. Sessions Judge, Roorkee, in Sessions Trial No. 91 of 1989, relating to conviction and sentence against accused / appellants Tinu @ Bhanwar Singh, Kaka @ Kublir and Babloo @ Bhupendra, in respect of offence punishable under Section 394 read with Section 397, and one punishable under Section 304 read with Section 34 of I.P.C., is hereby set aside. All the three accused are acquitted of the charge of offence punishable under Section 394 read with Section 347, and one punishable under Section 304 read with Section 34 of I.P.C. giving them benefit of doubt. They are on bail. They need not to surrender. Their bail bonds and cancelled and sureties stand discharged. Lower court record be sent back. (Prafulla C. Pant, J.) [[ Dt. February 25, 2011. H. Negi