HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 95 of 2002 Magan Singh ……..Appellant Versus tate of Uttarakhand …….Respondent S WITH Criminal Appeal No. 98 of 2002 Malkhan Singh. ……..Appellant Versus State of Uttarakhand …….Respondent Mr. Vinod Sharma, Advocate for the appellants. Mr. Amit Bhatt, Addl. Govt. Advocate for the State. Dated: August, 26 2011 Coram: Hon’ble Barin Ghosh, C.J. Hon’ble V.K. Bist, J. Barin Ghosh,C.J. (Oral) In the instant case, according to the post mortem report, the cause of death was ante-mortem injuries sustained by the victim. The post mortem report clearly indicated that the victim sustained three head injuries. The Doctor, who conducted the post mortem and deposed before the trial Court, stated that those three injuries were caused by stone. He accepted that such injuries could be caused by accidental fall. The Patwari made the inquest report, where it was stated that the dead body was found on the slope by the side of the river. He accepted the suggestion that the said injuries could be sustained by accidental fall. 2 2. A written report was lodged at 4:00 p.m. of 8th January, 2001 with the Patwari by the brother of the victim. In that, it was stated that the informant, his brother and the appellants herein, were returning from a village, after having had hawked cloth, when the brother of the informant was attacked with stones by the appellants and when the informant tried to save his brother, the informant too was attacked and inconsequence thereof, he lost his consciousness and after gaining consciousness, he found his brother lying dead. On receipt of the said report, a First Information Report was lodged by the Patwari at 4:00 p.m. of 8th January, 2001 and at about 4:00 p.m. of 8th January, 2001, the Patwari prepared the inquest report. The distance in between the office of the Patwari and the site of the incident is about 12 Kms. apart. Patwari concluded the investigation pursuant to the First Information Report, and thereafter filed a charge sheet, cognizance whereon was taken and charges were framed, which having been denied, trial commenced. At the trial, apart from the Doctor, who conducted post mortem, two other witnesses deposed, namely, the informant and the Patwari. In his evidence, informant said that he and his brother came from District Bijnor and at the same time, the appellants too came from District Bijnor, but they lived in two separate villages having a distance of about 10 Kms. between them. He stated that he, his brother and the appellants were hawkers and they hawked, principally cloth, in different villages. It was stated that in a village, 3 where the appellants normally hawk cloth, the informant, his brother and the appellants went to hawk cloth on 7th January, 2001. He stated that on the previous day, some of the cloth, belonging to him and his brother, were stolen. He stated that on 7th January, 2001, at about 6:30 p.m. when he, his brother and the appellants were returning, the appellants excused themselves for easing them up. Thereafter, when he was standing about 10 paces from his brother, who was sitting by the side of the river, suddenly, the appellants pounced upon his brother with stones and when he tried to intervene and save his brother, he too was attacked, and in course of such attack, he received injury, which resulted in making him unconscious. He stated that at about half an hour later, when he regained his consciousness, he found that his brother is lying dead. In his deposition, he stated that he then went to a village, but he does not know the name of the village. He stated that in that village, he requested for help from the people, but none agreed to provide any help. He stated that he stayed in the village during the night, but at the same time, added that he does not know the name of the gentleman of the village, whose guest he became in the night. He stated that on the next morning, he went to the Patwari at about 8:15 a.m. Thereafter, he stated that, he went to the market of a village known by the name Bedikhal and got the written report prepared with the assistance of a person. He stated that he does not know the person, who prepared the report. He stated that with the report, he went to 4 the Patwari, whereupon the report was treated as a First Information Report. In course of his examination, informant stated that there was no enmity in between he and his brother on the one side and the appellants on the other. He also stated that there was no discussion in between he and his brother on the one side and the appellants on the other side, regarding the theft of the materials, which took place one day before the incident in question. He stated that when he, his brother and the appellants were at the spot, where the dead body was found, all of them were carrying their hawking wares. Lateron, he added, of his own volition, that he and his brother were having hawking wares, but the appellants were not. He lateron, stated in course of his evidence, that when they returned, hawking wares of the appellants were lying at the spot, but his and his brother’s hawking wares were not lying there. These hawking wares were not seized. He did not take any medical assistance in respect of injury sustained by him. 3. Patwari, in his evidence, stated about lodgment of the First Information Report at about 4:00 p.m. of 8th January, 2001 and actions taken by him on the basis thereof. The records of the case do not suggest investigation to ascertain the whereabouts of the informant from about 7:00 p.m. of 7th January, 2001 until 4:00 p.m. of 8th January, 2001. 5 4. The learned Court below believed the evidence of the informant and on the basis of evidence of the informant held the appellants guilty. 5. In the present appeal, it is the contention of the appellants that the evidence given by the informant, in the circumstances of the case, could not, nor can at all, be believed for none of the statements made by him, is corroborated by any piece of evidence. It was stated that there is no evidence that the informant and the victim were hawkers and at the same time, there is also no evidence that the appellants carried on hawking business. The learned counsel submitted that there is no evidence, whatsoever, to suggest that the informant and the victim belong to Bijnor District or that the appellants belong to Bijnor District. The learned counsel submitted that the Court below blindly believed, whatever was orally stated in Court by the informant. The learned counsel further submitted that according to the own showing of the informant, he was with the victim at the time of the death of the victim, which according to the prosecution took place at about 6:30 p.m. of 7th January, 2001. The learned counsel submitted that the First Information Report was lodged by the informant at 4:00 p.m. of 8th January, 2001. The learned counsel submitted that until 4:00 p.m. of 8th January, 2001, what the informant was doing since after 6:30 p.m. of 7th January, 2001, has not been brought on record and the evidence of the informant is such that the statements given by him, 6 as regards what he did during that time, cannot be corroborated in any manner whatsoever. The learned counsel submitted that the evidence of the informant could not be accepted by the Court below, inasmuch as, it is unbelievable that the Patwari was approached by the informant at 8: 15 a.m. of 8th January, 2001, but the Patwari took action only after 4:00 p.m. of 8th January, 2001, on receipt of the written information. The learned counsel further submitted that according to the own showing of the informant, there was no enmity in between the victim and the appellants, and at the same time, according to the own showing of the informant, the victim never charged the appellants of the theft of his ware. The learned counsel submitted that in such circumstances, why suddenly the appellants, who had gone to ease them up, would turn violent against an accompanion, and the violence would be so much, that the same would cause a death, has not been established at all. 6. The Court on the basis of the evidence tendered by an eyewitness, can uphold the prosecution case that the accused is guilty of crime alleged against him. However, when the Court is to rely only on the evidence of such a witness and there is no other evidence available, it becomes obligatory on the part of the Court to ensure that the evidence given by the eyewitness is such and the credential of the eyewitness is also such, that the Court has no other option but to believe him. In the instant case, the whole case of the prosecution 7 has been made out by the informant from the witness box. Not one single statement given by the informant from the witness box has been corroborated, in any manner, by any piece of evidence. The informant has ensured, while giving his evidence, that he cannot be traced after the incident took place at 6:30 p.m. of 7th January, 2001 until 4:00 p.m. of 8th January, 2001. The same, according to us, demolishes the credentials of the witness. In the circumstances, the trial Court erred in feeling that he is bound by the words of mouth of the informant tendered in the form of evidence, while deposing before the Court. The trial Court, in the facts and circumstances could not, upon placing reliance on the evidence thus given by the informant, hold the appellants guilty. We, accordingly, give benefit of doubt to the appellants and, as such, set-aside the judgment and sentence under appeal. (V.K. Bist, J.) (Barin Ghosh, C.J.) 26.08.2011 NCM: