IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Government Appeal No.1620 of 2001 (Old No.423 of 2000) State of Uttar Pradesh (Now State of Uttarakhand) …..Appellant Versus Harvinder Singh@ Manga S/o Daljeet Singh R/o 14, East Rest Camp, Police Station Kotwali, District Dehradun ….Respondent/Accused Shri Amit Bhatt, A.G.A. present for the State/appellant. Shri R.S. Sammal and Shri B.S. Negi, Advocates present for the respondent/ accused. Dated: 22nd March, 2011 Coram: Hon’ble Prafulla C. Pant, J. Hon’ble V.K. Bist, J. Prafulla C. Pant, J. (Oral) This appeal, preferred under Section 378 of Code of Criminal Procedure, 1973 (for short Cr.P.C), is directed against the judgment and order dated 16.09.1999 passed by 1st Additional Sessions Judge, Dehradun in Sessions Trial No.86 of 1995, whereby said court has acquitted the accused/respondent Harvinder Singh @ Manga from the charge of offence punishable under Section 302 of Indian Penal Code (for short I.P.C.). 2. Heard learned counsel for the parties and perused the lower court record. 3. Prosecution story, in brief, is that on 27.06.1993 P.W. 4 Sukhvinder Singh lodged a First Information 2 Report (Ext.A-2) at Police Station Kotwali, Dehradun stating that his brother Devender Singh got married to Babli, sister of accused Harvinder Singh @ Manga. Three children were born out of the wedlock. After 5-6 years of the marriage, the relation of the parties to matrimony got soured and Devender Singh (deceased) started living in his house with his brother and mother, leaving his children and wife in the place of his in-laws. On the date of incident at about 9:45 p.m., when Devender Singh (deceased), alongwith, his mother Surjeet Kaur (P.W.2), was sitting on the staircase of a Gurdwara, accused/respondent Harvinder Singh@ Manga (brother in-law of the deceased) came there and hurled abuses at him. He dragged Devender Singh to some distance and protested as to why his sister Babli has been left by him. Thereafter, the accused/ respondent Harvinder Singh @ Manga shot fire from the country made pistol at Devender Singh, who suffered the firearm injury and fell down. Accused Harvinder Singh @ Manga ran away from the scene of occurrence. On hearing the sound of fire, P.W.4 Sukhvinder Singh and P.W.5 Kripal Singh came to the spot and saw the incident. Injured Devender Singh was immediately rushed to Doon Hospital, where he was declared dead. On the basis of First Information Report (Ext.A-2), Check Report (Ext.A-3) was prepared and necessary entry was made in the General Diary (Ext.A- 4). On receiving the memorandum of death from the Hospital, the Police proceeded to the Hospital and took dead body of Devender Singh in their possession and prepared Inquest Report (Ext.A-6) on 28.06.1993 at 8:00 a.m. The Police further prepared other necessary papers and sent the dead body for post mortem examination, in a sealed condition. P.W.3 Dr. Suresh Mehta of Doon Hospital conducted post mortem examination on 28.06.1993 at 3:15 p.m. He recorded the wound of entry of firearm injury on the dead body of the deceased and opined, in the Autopsy Report (Ext.A-1), that the deceased had died of shock and haemorrhage as a result of ante mortem firearm injury. After interrogating the witnesses, inspecting the spot, the Investigating Officer prepared Site Plan (Ext.A-8), arrested the accused and submitted the Charge Sheet (Ext.A-7) against the accused/respondent Harvinder Singh @ Manga for his trial in respect of offence punishable under Section 302 I.P.C. 4. The Magistrate, on receipt of the charge sheet, after giving necessary copies to the accused, as required under Section 207 of Cr.P.C., committed the case to the court of Sessions for trial. Learned 1st Additional Sessions Judge, Dehradun, after hearing the parties on 30th October, 1995, framed charge of offence punishable under Section 302 I.P.C. against the accused Harvinder Singh @ Manga, who pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W.1 Mukhbinder Singh (declared hostile), P.W.2 Smt. Surjeet Kaur (mother of the deceased), P.W.3 Dr. Suresh Mehta, who conducted post mortem examination, P.W.4 Sukhvinder Singh (informant but declared hostile), P.W.5 Kripal Singh (declared hostile), P.W.6 Head Constable Ganga Prasad, who prepared the 4 Check Report on the basis of First Information Report lodged at the Police Station and P.W.7 Darshan Singh (declared hostile). The oral and documentary evidence was put to the accused under Section 313 Cr.P.C. in reply to which, he alleged that he has been falsely implicated due to enmity. However, no evidence in defence, was adduced. The trial court, after hearing the parties, found that prosecution has failed in proving the charge successfully against the accused/ respondent Harvinder Singh @ Manga for the offence punishable under Section 302 I.P.C. Accordingly, the trial court acquitted the accused of the charge. Aggrieved by the said judgment and order dated 16th September, 1999 passed by the 1st Additional Sessions Judge, Dehradun in Sessions Trial No.86 of 1995, this appeal was preferred by the State before the Allahabad High Court on 25.01.2000. The appeal is received by this Court under Section 35 of U.P. Reorganization Act, 2000 (Central Act No.29 of 2000) for its disposal. Leave to appeal was granted by this Court and after summoning the lower court record, the appeal was heard on merits. 5. Before further discussion, we think it just and proper to mention the ante mortem injury found on the body of Devender Singh by P.W.3 Dr. Suresh Mehta, at the time of post mortem examination on 28.06.1993. The only ante mortem injury mentioned in the Autopsy Report (Ext.A-1) reads as under: “Firearm wound of entry 3cm. x 3cm., circular in shape over left eye with surrounding margins of injury deeply blackened and singeing of left eyebrow, seen with inverted margins with complete laceration of left eyeball, on opening direction was obliquely upwards and then downward towards the right side of back skull. Fracture of left orbital floor and anterior cranaial floor with laceration of blood vessel and brain tissue, marked haematoma and clotted dark fluid blood was seen at the base of skull. Multiple metallic pallets of varying sizes were seen in the occipital fossa with multiple laceration of right side of occipital lobe injuring the mengres. No firearm wound of exit was seen. 76 metallic pallets were recovered.” 6. The Medical Officer has opined, after post mortem examination on the dead body of Devender Singh (deceased), that he had died of shock and haemorrhage as a result of ante mortem firearm injuries. From the medical evidence on record, it is established that Devender Singh died a homicidal death on 27.06.1993. Now, we have to examine whether the prosecution was successful or not in proving the charge of offence punishable under Section 302 I.P.C. as against accused/respondent Harvinder Singh @ Manga. 7. There are as many as four witnesses of the fact, who were got examined to depose as to whether the accused/respondent Harvinder Singh @ Manga was seen committing murder of Devender Singh or not? P.W.1 Mukhbinder Singh, in his examination in chief, corroborates the prosecution story but in cross examination he admits that he could not see the 6 incident himself. Rather, he saw Devender Singh lying in injured condition. He further states that he took Devender Singh to Hospital. At that stage, prosecution got this witness declared hostile. In view of what has been stated by this witness in his cross-examination, his testimony in examination-in-chief narrated the prosecution story, loses its importance as he admitted in the cross examination that he himself did not see the incident and when he reached on the spot, he saw Devender Singh lying in the injured condition. 8. P.W.4 Sukhvinder Singh and P.W.5 Kripal Singh, who were produced before the trial court as the eyewitnesses on behalf of prosecution, did not support the prosecution story that they saw accused/ respondent Harvinder Singh @ Manga committing murder of Devender Singh. P.W.4 Sukhvinder Singh, who is complainant/informant of this case, himself admits in examination-in-chief itself, that his mother told him that someone has shot fire at Devender Singh. This witness was got declared hostile, as he had not supported the prosecution story that he saw accused/respondent committing murder of Devender Singh. Needless to say that this witness is brother of the deceased, who lodged the First Information Report. His testimony is of no help to the prosecution for the reasons discussed above. 9. P.W.5 Kripal Singh, who is also named as eyewitness by the prosecution, has stated that he did not see Harvinder Singh @ Manga firing shot or committing murder of Devender Singh. He too was declared hostile, as he did not support the prosecution story. 10. The only witness, who supported the prosecution case, is P.W.2 Smt. Surjeet Kaur (mother of the deceased). She is aged 70 years. Had the incident taken place inside the house of this witness, her presence could have been said to be natural. But the incident has taken place somewhere near a Gurdwara. She says that she had gone to Gurdwara and was sitting with a woman there. Since, she shows her presence, at the time of the incident, out of the house in the odd hours of 9:45 p.m. and her statement is not corroborated by any of the other eyewitnesses produced on behalf of the prosecution, we are of the view that the trial court had reasons to hold that the prosecution was not successful in proving the charge of offence punishable under Section 302 I.P.C. as against accused/respondent Harvinder Singh @ Manga. Assuming for a moment that P.W.2 Smt. Surjeet Kaur might have stated true account of the story, it is settled principle of law that where two views are possible, on appreciation of evidence on record, and trial court has taken a view holding that the accused is entitled to the benefit of reasonable doubt, the Appellate Court should not interfere with the finding of fact, unless the finding is perverse or against the record. We have already discussed above that there are sufficient reasons to come to the conclusion that the prosecution has not been successful in proving the charge of offence punishable under Section 302 I.P.C. as against accused/respondent Harvinder Singh @ Manga, as such, the view taken by the trial court is not required to be interfered with. 11. Therefore, this appeal is liable to be dismissed. The same is dismissed. Lower court record be sent back. (V.K. Bist, J.) (Prafulla C. Pant, J.) 22.03.2011 Arpan