Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Jail Appeal No. 51 of 2010 Suraj ….Appellant versus State of Uttarakhand ...…………. Opposite Party Mrs. Nishat Intezar, Amicus Curiae, for the appellant. Mr. Amit Bhatt, Addl. Govt. Advocate for the State. JUDGMENT Coram : Hon’ble Barin Ghosh, C.J. Hon’ble U.C. Dhyani, J. Per: U.C. Dhyani, J. This Criminal Jail Appeal, preferred under Section 378 (3) of the Code of Criminal Procedure, 1973, is directed against the judgment and order dated 31.08.2010, passed by Additional Sessions Judge, Rishikesh in Sessions Trial No. 172 of 2007, whereby accused / appellant Suraj is convicted under Section 302 2 of Indian Penal Code, 1860, and sentenced to imprisonment for life and also directed to pay a fine of Rs. 10,000/-, in default of payment of which he has been further directed to undergo imprisonment for a period of one year. 2. Heard learned Amicus Curiae for the appellant & learned Addl. Government Advocate for the State and perused the lower court record. 3. Prosecution story, in brief, is that on 15.06.2007 at around 01.00 a.m. in the night injured Pramod S/o Rishipal Singh came to his hutment and fell near the door. He was bleeding profusely. He asked for water from his uncle Prakash but he breathed his last before the water could be given to him. Prem Chand, his real brother has written a complaint under his signature that some unknown person has inflicted severe blows on the head of his brother and has injured him. His brother succumbed to injuries. This complaint was written on 15.06.2007. On the same date another complaint was made by Prakash, who is said to be uncle of Prem chand and Pramod. Prakash in his complainant lodged with the police has mentioned that Pramod came to his hutment in an injured state and disclosed that Amit and Suraj have beaten him. When Pramod was narrating this story to Prakash, accused Amit and Suraj followed him in the hutment and beaten him. Accused persons dragged Pramod out of the hutment. A scuffle took place between them. Suraj inflicted a blow on 3 the head of Pramod with an iron rod. Pramod fell on the ground. He asked for water. No sooner did he bring water, Pramod breathed his last. The accused person threatened the complainant with a dire consequences. The incident was seen by the neighbours Arjun and Ali and have recognized accused persons. Nobody came to the complainant’s help and proceeded to their hutment. Prakash sent the message to Pramod’s brother Prem Chand but could not disclose the name of the assailants out of anxiety and fear. 4. A chick FIR was registered on the basis of the complainant of the Prem Chand. Autopsy of the deceased was conducted. Autopsy report mentions the name of Suraj Kumar s/o Jogendra (accused) as one of the panches. Whether it is the same Suraj Kumar who has been arrayed as an accused in this case, this fact is still shrouded in the mystery. Although this Court has examined the signatures of Suraj Kumar on his statement under section 313 Cr.P.C. and the autopsy report exhibit Ka-3, which appear to be the same, but how come this Suraj Kumar remained at both the places i.e. on the place of occurrence as well as at the time inquest was conducted, has not been answered either by prosecution or the defence. 5. The investigation was conducted by two investigating officers. They have visited place of occurrence, prepared site plans and the subsequent investigating officer has submitted the charge sheet 4 against the accused persons. Before that the postmortem of the deceased was conducted. Iron rod, button and shirt of the accused Suraj Kumar was recovered and got the same examined by Central Forensic Science Laboratory, Chandigarh. 6. When the charge sheet was submitted against the accused persons, the case was committed to the court of Sessions after having provided the accused persons with the copies of documents relied upon by the prosecution. 7. Charge for the offence punishable under section 302 read section 34 IPC were framed against both the accused. A separate charge for the offence punishable under section 302 IPC was framed separately against the Suraj. They did not plead guilty and claimed to be tried. As many as nine witnesses were got examined on behalf of the prosecution. Statements of the accused under section 313 Cr.P.C. were taken. Accused persons did not adduce any evidence in defence. 8. The trial was conducted in the court of learned Additional Sessions Judge,Rishikesh. While Amit was given benefit of doubt, co-accused Suraj was convicted for the offence punishable under section 302 IPC. He was awarded imprisonment for life and fine. Aggrieved against this order, the appellant Suraj has preferred this Criminal Jail appeal. 5 9. PW-1 Prakash is the informant and the most important witness produced on behalf of the prosecution. He is the eyewitness. In his examination in chief PW-1 Prakash has said that he used to reside at Rishikesh in the hutment (jhopri) of deceased Pramod. He still resides in the hutment of deceased Pramod as on the date also. He has narrated the whole incident. It was about 7-8 months ago at 01.00 a.m. in the night that this witness was with Amar Singh in the hutment. Amar Singh is the father of accused Amit. At this, Pramod entered into the hutment and said that he has been beaten by Amit and Suraj. When the evidence of this witness PW-1 Prakash was recorded on 03.04.08, accused Suraj and Amit were present in the court. The eyewitness Prakash further narrated that both the accused (Amit and Suraj) followed Pramod and dragged him (Pramod) out side the hutment. Accused Suraj inflicted a blow of iron rod on the head of Pramod. Pramod fell down. He asked for water from him but before this witness or anybody else could provide water to Pramod, he became unconscious and fell down. Ali and Arjun were also present outside the hutment. The house in the neighbourhood was connected with electricity. In the meantime the shirt of the accused Suraj was torn. The accused persons went away from there alongwith iron rod. No body in the vicinity cooperated these people (witness and others). That is why they could not take injured Pramod to hospital. Thereafter this witness went back to his room. 6 10. PW-1 Prakash got the complainant written by one Vikram. Vikram recorded the same, what was spoken to him by this witness. He has identified his signatures on the complaint which was exhibited as exhibit-K1. This complaint was given by this witness in the police station. Since this witness is the most significant witness of the incident, therefore, his testimony is being mentioned and being discussed in detail. 11. A perusal of the complaint filed by Prakash on 15.06.2007 reveals that the story, which was narrated to him and Amar Singh by Pramod, was reproduced by him in the complaint. Whatever has happened in the first part of the incident, he has reproduced the same on the basis of what was told to him and Amar Singh by the injured Pramod. The second part of the incident in which Amit and Suraj entered into the hutment, dragged Pramod out of it and Suraj inflicted a blow of iron rod on the skill of Pramod, was seen by him. He has given an eyewitness account of what was seen by him. Thus, there are two aspects of the incident----the first aspect which was narrated to the informant by the victim Pramod and, the second aspect which was witnessed by the informant with his own eyes. Both these aspects were incorporated in the complaint. In the compliant, he has also mentioned that by the time the victim Pramod could be provided water, his breathed his last. Accused Suraj and Amit threatened the lodger of the FIR with dire consequences, if the incident is disclosed to police or anybody else. 7 12. Although it is mentioned in the complaint that the neighbours Arjun and Ali have also witnessed the occurrence, but, as the subsequent text of this judgment will reveal that these witnesses did not support the prosecution story. Prakash wanted to take injured to the hospital and inform to the police but nobody came to his help because of fear. Thereafter, Prakash sent a message to Prem Chand, brother of Pramod. He could not disclose the name of the assailants to Prem Chand out of fear and anxiety but did reach police station later on when the complaint was submitted there. 13. It is to be noted here that one more complaint filed by Prem Chand is also on the file. The name of the assailants has not been disclosed in the complaint written by the Prem Chand. Prakash is the uncle of Prem Chand. He has rendered this information to the Police Station Incharge of P.S. Kotwali Rishikesh as if the information has been given to him by his uncle Prakash. And that appears to be true. Both the complaints bear the same date i.e. 15.06.2007. The complaint filed by Prakash is exhibt Ka-1 and complaint written by Prem Chand is exhibit K-2. Chick FIR is lodged on the basis of complaint of Prem Chand on 15.06.2007 at 07.15 a.m. The chick FIR is against unknown persons. 14. It may be pointed out here that the trial commenced against two accused persons viz Amit and Suraj for the 8 offence punishable under section 302 IPC. The learned trial court in its judgment dated 31.08.2010 acquitted accused Amit of the charge framed against him granting him benefit of doubt. But this appellant-accused was held guilty of the offence punishable under section 302 IPC and was awarded imprisonment of life and a fine of Rs.10,000/-. 15. Coming back to the oral testimony of PW-1 Prakash, when this Court was perusing the evidence in order to test the veracity of this most significant prosecution witness, we were completely aghast to learn that PW-1 Prakash has not been cross examined. This fact was not brought to this Court’s notice when we were hearing submissions of rival parties. Although learned Amicus curiae advanced her arguments at length, but even she did not reveal that PW-1 Prakash has not been cross-examined, a fact which could have benefited her client most. The trial court in its judgment has commented upon the non-availability of PW-1 Prakash for cross-examination. It has been mentioned in the judgment of trial court that this important witness did not appear before the court despite issuance of summons. He did not appear for cross examination. He was not found available at the given address nor he did appear for cross examination. In view of this, the testimony of PW-1 Prakash can not be read in evidence and therefore, can not be relied upon by the prosecution. 9 16. Had this witness been produced for cross examination, he would have been the most natural witness as he was the next door neighbour. He got up because of hue and cry. The injured narrated the whole story to him. He got the FIR registered. He discharged duties of a responsible citizen but we are constrained to say that now he has avoided his responsibility of helping enforcement machinery. He would have been an asset to the prosecution, had he appeared for cross examination. But unfortunately, the same was not to be. Otherwise there would have been no question to have found the accused appellant Suraj not guilty of the offence of killing Pramod. His testimony would have been quality evidence. But unfortunately that did not happen. Even if other witnesses have not supported the prosecution story, it would have been very difficult for Suraj to get out of the strong testimony of PW-1 Prakash. 17. PW-2 Prem Chand S/o Rishipal is the lodger of FIR in his examination in chief he has said that on 15.06.2007 around 01.00 a.m. when his brother Pramod (since deceased) came, he had head injury. His head was bleeding. He wanted to say something. He has said that Amit and Suraj have beaten him. Thereafter he asked water from his uncle Prakash. His brother died thereafter. After some time the police personnel came and submitted a complainant to them. PW-2 Prem Chand has endorsed his signature on the complaint which was written by his cousin Anil. He has proved the complainant exhibit K-2. 10 He has also proved his signature on the inquest report. The inquest report was conducted on 15.06.2007 at 08.00 a.m. The dead body was handed over to him after the post-mortem was conducted on it. 18. In the cross examination PW-2 Prem Chand has said that his uncle is Prakash S/o Narain. He is not aware whether Prakash also lodged a complaint or not. When occurrence took place, PW-2 Prem Chand used to reside in the bakery factory. On the date of the incident, he was in the bakery. He has admitted that the complaint does not contain the names of accused persons (because he did not disclose their names). He has also admitted that he has lodged the complaint exhibit K-2 against unknown persons. He is not aware anything regarding this incident. In fact, he did not go to Police station at all. He is not aware whether the inquest was prepared before presenting the complaint or after that. Even the time of arrival of the victim is also different in his cross- examination, wherein he has said that his brother came at 05.00 a.m. He has admitted that he did not give this statement to investigating officer that his brother came to his uncle Prakash and demanded water. He has admitted that he did not disclose the names of Amit and Suraj to the Investigating Officer. 19. In the cross examination PW-2 Prem Chand has admitted that the report was lodged against unknown 11 persons. Since Suraj resides in his hutment on rent, therefore, he is acquainted with him. 20. PW-3 Ali Hasan has not supported the prosecution story and therefore he has been declared hostile. In his examination in chief PW-3 Ali Hasan has said that no incident took place before him. He did not see accused persons or either of them on the spot. He went to meet Pramod only on calling of Purkal at 12.00 in the night. When he met Pramod, he was unable to speak anything. Pramod used to reside in hutment. An old man named Purkal also resided over there. This witness is signatory to the inquest report. He has declined having seen any incident of marpeet in which Pramod was injured. This witness was cross-examined by learned D.G.C. (Criminal) at some length but nothing has come in his statement, which could help prosecution. No question was asked on behalf of the accused in cross examination. 21. PW-4 Arjun also did not support prosecution story. Although he has said in the examination in chief that he was acquainted with Pramod but he did not see anything so far as his killing is concerned. He did not see Amit or Suraj committing marpeet with Pramod. No incident took place in his presence. This witness too was cross- examined by learned D.G.C. (Criminal) but the testimony of this witness does not help the prosecution. In reply to a question asked on behalf of accused person, this witness 12 has said that he had only seen the dead body of deceased. 22. PW-5 Deshraj also did not support prosecution story. This witness was detained by the police for seven days. He has however, admitted that inquest report was got signed by the police forcibly. This witness too was declared hostile. His testimony does not help the accused in any way. 23. PW-6 S.I. Om Prakash Arya was posted at Kotwali Rishikesh as Sub Inspector on 15.06.2007. He was appointed as Investigating Officer. He has proved inquest report exhibit Ka-3 and other papers exhibit Ka-4 and Ka- 5. He has said that a button of a shirt was found on the place of occurrence. A memo Ka-6 was prepared in that respect. Blood stained soil was collected by him and a memo of Ka-7 was prepared in this respect. He inspected the place of occurrence and prepared site plan exhibit Ka- 8. He is only a formal witness. 24. PW-7 S.S.I. Jodh Singh Adhikari has conducted the investigation of the case in part. In fact he has concluded the rest of the investigation. His predecessor was PW-6 S.I. Om Prakash Arya. Accused Amit and Suraj were arrested. On their pointing, the iron rod which was used in the commission of crime and torn shirt of Suraj was recovered. A memorandum exhibit Ka-9 was prepared in this behalf. Site plan (exhibit Ka-10) of the place where 13 these articles were recovered, was prepared. Hair found in the hands of deceased were sent to Central Forensic Science Laboratory, Chandigarh. Torn shirt and button was also sent to C.F.S.L. The charge sheet exhibit Ka-1 was submitted against the accused persons. This witness PW-7 S.S.I. Jodh Singh Adhikari has also proved iron rod exhibit-2, button exhibit-3 and shirt exhibit-5. 25. In the cross examination PW-7 S.S.I. Jodh Singh Adhikari has admitted that no public witness was taken while arresting the accused persons. He has said that a lot of public was coming there. He has denied that complaint from Prakash was taken after chick FIR was lodged. The other facts have also come in the testimony of this witness but they have hardly any bearing on the merits of the case and therefore, they are being skipped there. 26. PW-8 Dr. Manu Jain, Medical Officer, Doon Hospital, Dehradun has conducted post mortem on the body of Pramod on 15.06.2007. He has also found ante-mortem injuries on his body which have been mentioned in his report exhibit Ka-12. He has said that these ante-mortem injuries were sufficient to cause the death of victim. 27. Lastly PW-9 B. Badoneey, Assistant Director, C.F.S.L., Chandigarh has proved photographs from exhibit Ka-17 to Ka-23 and has also proved his report exhibit Ka-16 which relate to the piece of shirt and button. 14 He has said that button was of the same shirt. It was submitted on behalf of learned Amicus Curiae that it has nowhere come in story of prosecution that the accused Suraj was wearing the same shirt when the alleged occurrence took place. It is not established that the shirt belonged to accused Amit. This Court is inclined to agree with the submission of learned Amicus Curiae to this extent. It is true that the button has been matched to show that the same belongs to a shirt said to have been of the accused Suraj but it has not been established by the prosecution that the shirt really belonged to Suraj or he was wearing the same when the alleged occurrence took place. 28. The Learned trial court has largely relied upon the fact that the button has been matched with the shirt but, as has been said earlier, the prosecution has not been able to establish that the shirt belonged to the appellant/accused, and therefore, this piece of evidence alone is not sufficient to bring home guilt to the accused. The hair, said to have found in the hands of deceased did not match with the hair obtained from the head of accused. Although it was not essential but in the given set of facts and circumstances, public witness to the recovery of iron rod and button was desirable. In view of this, the conviction of Suraj cannot sustain on the basis of alleged recovery under section 27 of Evidence Act. 15 29. In a nutshell, there is no evidence against the accused appellant. There are two FIRs. The most important witness whose testimony could have brought home guilt to the accused was PW-1 Prakash but this Court was aghast to learn that he could not be procured for cross examination and therefore, the examination in chief of a witness who could not be subjected to cross examination, is of no value. Had he come, it is quite possible that the fate of this case would have changed. PW-2 Prem Chand is not eye witness. He has only lodged the FIR, that too against unknown persons. PW-3 Ali Hasan, PW-4 Arjun and PW-5 Deshraj have not supported the prosecution story. PW-6 S.I. Om Praksh Arya and PW-7 S.S.I. Jodh Singh Adhikari were investigating officers, PW-8 Dr. Manu Jain has conducted post mortem report and PW-9 B. Badoneey is the Assistant Director of C.F.S.L., Chandigarh who has matched the button with that of shirt. 30. The evidence thus brought on record on behalf of the prosecution is not sufficient to bring home guilt to the accused appellant Suraj. Co-accused Amit has been acquitted by the learned trial court on 31.08.2010. Appellant accused Suraj also meets the same fate. 31. Criminal Jail Appeal No.51/2010 filed on behalf of accused appellant Suraj is allowed. The judgment and order dated 31.08.2010 rendered by learned trial court, so far as it relates to appellant Suraj, is set aside. The 16 conviction and sentence awarded to the appellant Suraj is also set aside. The appellant Suraj is in jail. He be set at liberty forthwith, if not required to be detained in any other case. Let a copy of this order be sent to the Superintendent of Jail concerned where the accused appellant is serving out the sentence. Lower court record be sent back. (U.C. Dhyani, J) (Barin Ghosh, C.J.) November 28, 2011 JKJ