IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Jail Appeal No. 833 of 2001 (Old No. 305 of 1993) Girja Prasad ...…………. Appellant Versus The State ...…………. Respondent Mr. S.P.S. Panwar, Amicus Curiae for the appellant. Mr. H.C. Pujari, Addl. Govt. Advocate and Mr. M.A. Khan, Brief Holder for the respondent-State. Coram : Hon’ble Prafulla C. Pant, J. Hon’ble Dharam Veer, J. Per Hon. Prafulla C. Pant, J. This appeal, preferred under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), is directed against the judgment and order dated 25.11.1992, passed by learned Second Additional Sessions Judge, Dehradun, in Sessions trial No. 42 of 1989, whereby the accused / appellant Girja Prasad has been convicted under Section 302, 467, 379 of the Indian Penal Code, 1860 (hereinafter referred as I.P.C.). He is sentenced to undergo imprisonment for life under Section 302 of I.P.C., rigorous imprisonment for a period of five years under Section 467 of I.P.C.; and rigorous imprisonment for a period of three years under Section 379 of I.P.C. 2 2) Heard Mr. S.P.S. Panwar, learned Amicus Curiae for the appellant and Mr. H.C. Pujari, Additional Government Advocate with Mr. M.A. Khan, Brief Holder for the respondent State and perused the lower court record. 3) Prosecution story, in brief, is that Swami Parmanand (deceased), father of the complainant Hem Raj (P.W. 3) used to live in Pashulok, Rishikesh, in the neighbourhood of accused / appellant Girja Prasad. He (deceased) used to have two jersey cows and one calf. He used to sell milk to meet his expenses and that of his family. On 26.08.1986, complainant’s younger brother Laxmi Narain (P.W. 8) went to see his father (as the family of the deceased used to live separately) at Pashulok. He saw his father (Swami Parmanand) going towards jungle with accused / appellant Girja Prasad and Kishan Lal. The prosecution case is that Nathu Singh (P.W. 1) and Jas Ram Singh (P.W. 2), who are labourers, were collecting stones in the river and they too saw Swami Parmanand going towards jungle with the aforesaid two persons. On 31.08.1986, when Laxmi Narain again went to Pashulok, he found that his father is not there. On enquiry being made, accused / appellant Girja Prasad told him that the two cows and a calf have already been sold to him by Swami Parmanand, who had gone towards Swargashram. The accused / appellant Girja Prasad show stamp paper receipt (Ext. 1) in support of his contention. When the family members of the complainant searched out for swami Parmanand he was not traceable. Consequently, on 01.09.1986, Hem Raj (P.W. 3), another son of Swami Parmanand lodged the report (Ext. A –5) with police outpost I.D.P.L., Veer Bhadra, Rishikesh, suspecting commission of 3 murder of his father by Girja Prasad. Sudhir Kumar Tyagi (P.W. 15), who was Incharge Inspector of the reporting outpost started investigation and recovered the two jersey cows and a calf from house of accused Girja Prasad. He arrested Girja Prasad on 06.09.1986, and allegedly recovered blood stained soil from the jungle of Shisham Jhari on pointing out of accused / appellant Girja Prasad, and prepared memorandum (Ext. A –1). On the same day, at 03:30 P.M., he also recovered two blood stained axe on pointing out of accused Girja Prasad, which were allegedly used in commission of murder of Swami Parmanand. The stamp paper receipt possessed by accused / appellant was also taken into possession by the Investigating Officer, who prepared the memorandum (Ext. A –3). The Investigating Officer found that signatures of Swami Parmanand in the receipt were forged one. Hence, the same was sent to the handwriting and fingerprint expert for examination. While, interrogating the witnesses, the Investigating Officer further found that accused / appellant Girja Prasad and his associate Kishan Lal made extra Judicial confession to Hira Mani Sharma (P.W. 13). On completion of investigation, the Investigating Officer submitted charge sheet against the three accused, namely Girja Prasad (appellant), Kishan Lal and Bachu Lal. 4) On receipt of the charge sheet, the Magistrate 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. The sessions trial appears to have been transferred from the court of Sessions Judge, Dehradun, to the court of Second Additional Sessions Judge, 4 Dehradun. After hearing the parties, the trial court framed charge of offences punishable under Section 302, 201, 379 and 467 of I.P.C. against the two accused, namely Girja Prasad (present appellant) and Kishan Lal. As against accused Bachu Lal charge of offence punishable under Section 467 of I.P.C. was framed. All the three accused pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1 Nathu Singh; P.W. 2 Jas Ram Singh (both witnesses, who state that they had last seen deceased with accused / appellant); P.W. 3 Hem Raj (complainant and son of the deceased); P.W. 4 Satya Prasad (in whose presence axe and blood stained soil is said to have been recovered on the pointing out of the accused / appellant); P.W. 5 Amar Nath (in whose presence recovery memo relating to two jersey cows and a calf was prepared); P.W. 6 Sunil Goswami (nephew of the deceased, who also states that be had last seen deceased with the accused / appellant); P.W. 7 Hari Om Tyagi (from whom stamp paper is purchased to prepare the deed relating to purchase of cows); P.W. 8 Laxmi Narain (another son of the deceased); P.W. 9 Raghuvir Dutt Sharma (who prepared the agreement executed by him with Swami Parmanand); P.W. 10 Gopal Purohit (declared hostile); P.W. 11 Raghuvar Dayal Mishra (a formal witness); P.W. 12 Ramesh Kumar (a formal witness, who made entry of sale of stamp paper in a register); P.W. 13 Hira Mani Sharma (who says in his presence accused Girja Prasad and Kishan Lal made extra judicial confession); P.W. 14 Prakash Chandra Pathak (Govt. handwriting expert) and P.W. 15 Sudhir Kumar Tyagi (the Investigating Officer). The oral and documentary evidence was put to the accused under Section 313 of 5 Cr.P.C., in reply to which they alleged the same to be false. However, no evidence in defence appears to have been adduced. 5) After hearing the parties, the trial court found only accused Girja Prasad guilty of offence punishable under Section 302, 467 and 379 of I.P.C., and convicted him accordingly. The trial court acquitted the other two accused from the charges framed against them. After hearing the parties on sentence, convict Girja Prasad was sentenced to imprisonment for life under Section 302 of I.P.C.; rigorous imprisonment for a period of five years under Section 467 of I.P.C.; and rigorous imprisonment for a period of three years under Section 379 of I.P.C. However, he is acquitted of the charge of offence punishable under Section 201 of I.P.C. Aggrieved by said judgment and order dated 25.11.1992, passed by learned Second Additional Sessions Judge, Dehradun, in Sessions Trial No. 42 of 1989, this appeal was filed from jail by the convict, which is admitted on 16.02.1993 by the Allahabad High Court. The appeal is received to this Court by transfer under Section 35 of the U.P. Re-organization Act, 2000 (Central Act No 29 of 2000), for its disposal. 6) Following circumstances are enumerated by the trial court on the basis of which accused Girja Prasad is held guilty by the trial court of the charge of offences punishable under Section 302, 467 and 379 of I.P.C.: a) P.W. 1 Nathu Singh and P.W. 2 Jas Ram Singh had ‘last seen’ Swami Parmanand (deceased) with 6 accused Girja Prasad and Kishan Lal, on 26.08.1986. b) Recovery of blood stained soil and blood stained axe were made on pointing out of accused / appellant Girja Prasad as stated by P.W. 4 Satya Prasad. c) As per the chemical examiner’s report human blood was found on the axe said to have been recovered on pointing out of accused / appellant Girja Prasad. d) P.W. 14 Prakash Chandra Pathak, Government handwriting expert had proved the fact that the signatures on the document of purchase of cows purported to have been signed by Swami Parmanand did not tally with admitted one. e) The cows of Parmanand which are said to have been stolen, recovered from accused / appellant Girja Prasad and memorandum was prepared in the presence of P.W. 5, who proved Ext. A –4. f) Extra Judicial confession is said to have been made by accused Girja Prasad in the presence of P.W. 13 Hira Mani Sharma relating to commission of murder of Swami Parmanand. 7) The aforesaid circumstances if taken to be true, certainly, what the trial court has found can be upheld. But the evidence relied by the trial court, on re-assessment of the lower court record by us, is found neither reliable nor trustworthy to prove charge against accused / appellant Girja Prasad to rope him on the charges framed against him, for following reasons: 7 i) P.W. 1 Nathu Singh and P.W. 2 Jas Ram Singh who state that they had last seen the accused / appellant Girja Prasad with Swami Parmanand do not appear to be natural witnesses. P.W. 1 Nathu Singh is resident of District Bijnour, who says that he was in Rishikesh on that day working as a labourer. Apart from this, what is strange is that how an outsider person knew the accused and deceased by name in Rishikesh, is not clear from the record. Assuming for a moment, that this P.W. 1 Nathu Singh lived temporarily in Nehru Gram as stated by him for doing work of labourer, it is not clear how he knew the residents of Pashulok, by name. This witness in his cross-examination himself admitted that Pashulok is at a distance of 3–3½ kilometers from Nehru Gram. Similarly, truthfulness of the statement of P.W. 2 Jas Ram Singh is doubtful for the same reasons, as mentioned above, as this witness also belongs to Nehru Gram and it is not clear how he knew accused and deceased who were residents of Pashulok. Apart form this, assuming for a moment that these two witnesses knew the accused and deceased, there are major contradiction in their statement which belie the story that they had last seen the accused / appellant with Swami Parmanand. P.W. 1 Nathu Singh says he saw them together at 6 – 6:15 P.M. But P.W. 2 Jas Ram Singh states that he saw Girja Prasad with Parmanand at 10:30 – 8 11:00 A.M. This further creates doubt in the testimony adduced by these two witnesses. In our opinion, the circumstances that the accused / appellant Girja Prasad was seen with Swami Parmanand on 26.08.1986, cannot be said to have been proved beyond reasonable doubt. ii) P.W. 6 Sunil Goswami, nephew of Swami Parmanand, is also a chance witness, who states that on 26.08.1986, he saw accused Girja Prasad going with Swami Parmanand. This witness is resident of Dehradun and states that on that day by chance he had gone to Rishikesh, which is at a distance of 45 kilometers. The timing stated by this witness when he saw accused with the deceased is 4:30 P.M. The said time does not coincide with the time disclosed by either P.W. 1 Nathu Singh or P.W. 2 Jas Ram Singh. Testimony of this witness cannot be said to be reliable in the above circumstances. It is also not clear how he knew Girja Prasad and Kishan Lal from the day before the incident. P.W. 6 Sunil Goswami has improved the prosecution story further by saying that Girja Prasad and Kishan Lal were armed with axe. Strangely, when this witness saw the aforesaid two persons armed with axe taking Swami Parmanand with them, why he kept silent till 01.09.1986, when the first information report is lodged by P.W. 3 Hem Raj, complainant and son of the deceased. P.W. 6 Sunil Goswami has admitted that he had gone to the house of Hem Raj also on that day. 9 As such, the testimony of this witness is also doubtful, in nature. iii) Assuming for a moment that what P.W. 1 Nathu Singh, P.W. 2 Jas Ram Singh and P.W. 6 Sunil Goswami are stating is true, the evidence of last seen is not of much help in the present case, as dead body of Swami Parmanand is not recovered by anyone. The prosecution has not proved death of Swami Parmanand beyond reasonable doubt. Though, it is not necessary that dead body must be recovered for proving the death of the deceased as the same can be proved by other circumstances and the evidence of eyewitnesses, if any, who had seen killing of deceased by the accused. But, in the present case, there is no eyewitness, who saw accused committing murder of Swami Parmanand. What is significant in the present case, which creates doubt in the prosecution story of commission of murder of Swami Parmanand by Girja Prasad is that he (Parmanand) was not living with his sons and wife. As per the prosecution story Swami Parmanand was living in the rented accommodation of accused Girja Prasad in Pashulok, while his sons and wife used to live in Village Nehru Gram, as is clear from the statement of P.W. 8 Laxmi Narain, another son of Swami Parmanand, and P.W. 6 Sunil Goswami. P.W. 6 Sunil Goswami states in his cross-examination that even before Swami Parmanand started living in Pashulok, he used to 10 live in a hut in Shisham Jhari with his cows. For a person who was living in isolation from his family, it cannot be ruled out that he might have renounced the world and left Rishikesh for some undisclosed destination. The entire story that he was last seen with Girja Prasad provides no inference of commission of murder by Girja Prasad, as the two were landlord and tenant and seeing them together is of little help to the prosecution. iv) Statement of P.W. 3 Hem Raj, complainant and son of Swami Parmanand, is directly contradictory to the statement of his cousin P.W. 6 Sunil Goswami. P.W. 3 Hem Raj has denied in his cross-examination that his mother and father were living separately. But, P.W. 6 Sunil Goswami has admitted that his uncle Parmanand used to live separately in Pashulok, while his aunt used to live in Nehru Gram. The distance between the two places is stated by P.W. 8 Laxmi Narain, another son of Swami Parmanand to be 3½ - 4 Kilometers. v) P.W. 13 Hira Mani Sharma states that accused / appellant Girja Prasad and co-accused Kishan Lal made extra judicial confession before him that they have committed murder of Parmanand but the same is highly doubtful and unnatural. Firstly, it is hard to believe that the two accused in chorus made an extra judicial confession to a person, that too without any sufficient reason. Assuming for a moment, that such extra judicial 11 confession can be made, most important part in the statement of P.W. 13 Hira Mani Sharma is that he states that on 25-26th of August 1986, the confession was made by the two accused. But, from the statement of P.W. 1 Nathu Singh and P.W. 6 Sunil Goswami, Swami Parmanand was seen with Girja Prasad in the evening of 26.08.1986. P.W. 13 Hira Mani Sharma in his cross-examination admits that he is a retired Subedar. It is not explained why he kept mum from 25-26th August 1986 till 1st September 1986 and did not disclose the police about the incident. The accused were neither his relatives nor he had any reason to save them. 8) From the documentary evidence relating to deed on a stamp paper regarding purchase of cows by Girja Prasad from Swami Parmanand read with statement of P.W. 14 Prakash Chandra Pathak, Government handwriting expert, and recovery of blood stained two axe the said two circumstances does not prove beyond reasonable doubt that it is actually Girja Prasad who committed the murder. As far as the commission of theft is concerned, it is necessary that the property stolen must be taken out of possession of the lawful custodian. But, in the present case, the cows and the calf, admittedly, were kept by Swami Parmanand in the rented property of Girja Prasad and they were found by police there only, regarding which it is stated by P.W. 5 Amar Nath that after showing recovery of cows, the Supurdginama (Ext. A –4) was prepared by the police. It is 12 not proved that Girja Prasad had taken away the property (cows) from the possession of any person to anywhere. 9) For the reasons as discussed above, we are of the view that the trial court has erred in law in holding the accused / appellant Girja Prasad guilty of offences punishable under Section 302, 467, 379 of I.P.C. In the above circumstances and after the evidence discussed by us, we are of the view that it is not proved beyond reasonable doubt that accused / appellant Girja Prasad has committed murder of Swami Parmanand, or committed forgery or theft of the cows and calf. Therefore, this appeal deserves to be allowed. The appeal is allowed. The impugned judgment and order dated 25.11.1992, passed by Second Additional Sessions Judge, Dehradun, in Sessions Trial No. 42 of 1989, is set aside. The appellant Girja Prasad is acquitted of all the three charges. If in jail, he be released forthwith, provided he is not required in connection with any other crime. Lower court record be sent back immediately. (Dharam Veer, J.) (Prafulla C. Pant, J.) Dt. July 30, 2008. H. Negi