IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. Government Appeal No. 1256 of 2001 (Old Government Appeal No. 1714 of 1993) State …Appellant. Versus Harish Negi @ Hari Singh Negi, Son of Sri Khushal Singh and four others. …Respondents. Sri H.C.Pujari, learned A.G.A. for the State-appellant. Sri Rajendra Kotiyal, Adv. learned counsel for the respondents. Date September 14, 2009 Hon’ble B.C.Kandpal, ACJ. Hon’ble B.S.Verma, J. This Government Appeal under Section 378(3) of the Code of Criminal Procedure, 1973 (for short Cr.P.C.) is directed against the judgment and order of acquittal dated 24-6-1993, passed by III Additional Sessions Judge, Nainital, in Sessions Trial No. 247 of 1992, State Vs. Hari Singh Negi and four others, whereby the accused-respondent Harish Negi was acquitted of the charge under Section 147, 148 and 302 I.P.C., while other respondents Digvijai Singh, Rishipal Singh, Sudhanshu Ojha and Hemant Negi were acquitted of the charge under Sections 147, 148 and 302 read with Section 149 of the I.P.C. extending benefit of doubt to each of them. 2. Brief facts giving rise to the present appeal, as emerging from the material on record, are that on 3-6-1991 at about 5 p.m., informant Satya Prakash, son of Ram Kishore, resident of Tanda Sultanpur, Police Station Bazpur, accompanied by his brother Roop Singh, came by bus to Sultanpur Patti and as soon as they alighted from the buys near Town Area Office, Hari Singh Negi alias Harish Negi, S/O Khushal Singh, Digvijai Singh, S/O Ram Kumar, Hemant Singh S/O Khushjal Singh, R/O Tanda, Rishipal and Sudhanshu 2 Ojha appeared there armed with their weapons. Accused Harish Negi and Digvijai Singh were carrying gun, while rest of them had country made pistols with them. Accused Harish Singh Negi shouted that journalists have arrived, who used to publish widely against their activities in the newspaper and asked his companions to finish them. Hari Singh Negi fired shot from his gun, which hit Roop Singh, who fell on the ground. Hari Singh again aimed at the head of Roop Singh from a close distance and fired. Digvijai Singh also fired shot from his gun, but the informed narrowly escaped his life. All the assailants fired shots from their weapons and ran away from the scene of occurrence. Roop Singh died at the spot. The occurrence was witnessed by Ashok Agarwal, Prem Singh, Devendra, Girish and others of Sultanpur. Satya Prakash lodged a written report of the occurrence (Ext. Ka-1) with the Police Station Bazpur on the same day at 6-30 p.m. On the basis of which, Check F.I.R. (Ext. Ka-5) was prepared and a case was registered against the accused-respondents at Crime No.282/91 under Sections 147, 148, 149, 302 I.P.C. at Police Station Bazpur and an entry was made to that effect in the general diary at serial no. 36 dated 3-6-1991 (Ext. Ka-6). 3. The investigation of the case was taken up by Station Officer Sant Ram Sharma of Police Station Bazpur. The dead body was of Roop Singh was taken into possession by the Investigating Officer. Inquest report (Ext. Ka-2) was prepared on 3-6-1991 itself at 8-20 p.m. after appointing Panchas. The dead body was sealed and was sent for post mortem examination to Government Hospital, Kashipur along with necessary papers. The investigating officer recovered four empty cartridges 12 bore from the spot and prepared memo of recovery thereof (Ext. Ka-3) in presence of witnesses. He also collected bloodstained and plain earth from the spot and prepared memo thereof Ext. Ka-4. The I.O. also prepared the site plan of the place of occurrence showing all material places therein (Ext. Ka-11). 3 4. The autopsy on the dead body of Roop Singh was conducted on 4-6-1991 at 11 p.m. by Dr. C.K.Gupta, Medical Officer, Government Hospital, Kashipur. He prepared the post mortem report vide Ext. Ka-13 on record and noted all the ante mortem injuries found on the person of the deceased therein. In the opinion of the medical officer, the deceased died as a result of shock, haemorrhage due to ante mortem injury on vital organ of the body and that the death had taken place about 12-24 hours before the time of examination. The ante mortem injuries were sufficient in the ordinary course of nature to cause death. 5. The Investigating Officer recorded the statements of witnesses under Section 161 of the Cr.P.C. and after completing all other formalities, submitted a charge sheet against all the five accused (Ext. Ka-12) showing therein accused Hemant Singh as absconder to the court of Judicial Magistrate Kashipur, who in turn committed the case of the accused to the Court of Sessions on 31-8- 1992 and the case was registered as Sessions Trial No. 247 of 1992, which was later-on transferred for trial of the accused persons to the court of III Additional Sessions Judge, Nainital. 6. Charge under Section 147, 148 and 302 I.P.C. was framed against accused-respondent Harish Negi, while rest of the accused were charged for the offences under Section 147, 149 and 302 I.P.C. read with Section 149 of the I.P.C. to which the accused pleaded not guilt and claimed to be tried. 7. The prosecution in support of its case examined 8 witnesses in all before the trial court. P.W.1 Devendra Kumar, P.W.2 Prem Singh and P.W. 3 Girish Chandra were produced as eyewitnesses. P.W. 4 Satya Prakash, complainant who lodged the F.I.R. with the police station and he is also alleged eyewitness of the occurrence. P.W.5 Bali Mohammad is the witness of inquest report. P.W. 6 Mohammad Jahn is the witness of recovery of empty cartridges (Exts. I to IV), who has proved the recovery memo of 4 empty cartridges as Ext. Ka-3. P.W. 7 Constable Jaiwant Singh was posted as Moharrir in police station Bazpur at the relevant time, who prepared the Check F.I.R. on the basis of written report (Ext. Ka-1) submitted by complainant Satya Prakash. P.W.8 is S.O. Sant Ram Verma, the investigating officer. 8. The statements of the accused persons were recorded under Section 313 Cr.P.C. but they denied their involvement in the commission of crime and alleged their false implication in the crime. They also stated the witnesses had given false statements against them. All the accused have also denied their presence as member of an unlawful assembly on the alleged date, time and place. The accused-respondents have not adduced any evidence in their defence. 9. The genuineness of the post mortem examination report was admitted by the learned counsel for the defence, therefore, the formal proof was dispensed with and same has been marked as Ext. Ka-13 and has been read in evidence by the learned trial Judge. 10. The learned trial Judge, after hearing both the parties and after perusing the entire material on record, came to the conclusion that the evidence adduced by the prosecution was not sufficient to bring home the guilt to the accused-respondents beyond reasonable doubt. Consequently, all the accused-respondents were acquitted of the charges levelled against them by extending benefit of doubt to each of them. 11. We have heard learned A.G.A. at length and perused the entire evidence available on record. 12. Learned A.G.A. appearing for the State in support of appeal has firstly contended that the learned trial Judge has failed to properly appreciate eyewitness account of P.W.4 Satya Prakash, who was very much present at the scene of occurrence along with the 5 deceased. Therefore, the order of acquittal passed against the accused-respondents is not tenable. 13. In this appeal, the homicidal death of the deceased Roop Singh is not disputed, as is evident from the post mortem examination report Ext. Ka-13, available on record. In the case at hand, the prosecution in order to establish the charges against the accused has examined as many as 8 witnesses before the court below. Out of them, P.W.1 to P.W.4 are the witnesses of fact and are alleged to have seen the occurrence. A reference to their testimony is necessary for a just decision of the appeal. 14. P.W.1 Devendra Kumar has stated in his examination in chief that he knew the deceased Roop Singh. He died on 3-6-1991. He has stated that he does not as to how the deceased died. This witness even failed to identify the accused present in the court. PW 1 has not at all supported the prosecution story and he was declared hostile by the prosecution and was permitted to be cross-examined by the learned counsel for the State. But nothing incriminating could be elicited from such cross-examintation. P.W.2 Prem Singh and P.W.3 Girish Chandra have given similar statgement as that of the P.W.1 and they were declared hostile and they were also cross- examined by the learned State counsel, but even from their cross- examination noting material could be elicited to support the prosecution story. Now, there remains the solitary testimony of P.W.4, Satya Prakash, who is the real brother of the deceased. The uncorroborated testimony of P.W.4, who is real brother of the deceased, shall be examined very cautiously in order to see whether the prosecution has established the guilt of the accused beyond reasonable doubt. 15. P.W.4, Satya Prakash, has stated in his examination in chief that on 3-6-1991 at 5 p.m. he was returning to his house from 6 Kashipur. As soon as he lighted from the bus near Town Area Office Sultanpur Patti along with his brother and started to proceed, Harish Negi, Hemant Negi, Sudhanshu, Rishipal and Digvijai Singh appeared there. Harish Negi and Digvijai Singh were armed with guns and rest of the three accused were armed with country made pistols. Harish Negi aiming at his brother Roop Singh shouted saying he was publishing in the newspaper against them (the accused). Let him be done to death today. Harish Negi then opened fire at his brother from his gun and due to gun shot, his brother fell on the ground. PW 4 further stated that Harish Negi shot one fire again at the deceased and accused Digvijai fired a shot from his gun at this witness PW 4 but he turned from his position and escaped. Thereafter, all other three accused shot fire from their weapons at Roop Singh, who succumbed to his injury at the spot. P.W. 4 also stated that at the time of this incident, witness Ashok Agrawal, Devendra Singh, Prem Singh and Girish Maurya etc. also collected there. P.W. 4 further stated that the report of the incident was written by him and he put his signature thereon. He proved written report, Ext. Ka-1 and lodged the same with the police station. He also stated that all the accused persons were known to him from before. They are dangerous persons, hence no one wants to give evidence against the accused. P.W.4 has narrated the prosecution story as set forth in the written report. In his cross-examination, this witness has admitted that there existed reporting police Chowki in village Sultanpur Patti on the date of occurrence. The distance of the police outpost from the place of occurrence is stated to be3/4 km. or 1 km. but no report was lodged by this witness in the police outpost rather he chose to lodge the report at the police station Bazpur, which is at a distance of about 14 kms. from the scene of occurrence. No explanation was given by this witness for not lodging the FIR at the nearest police outpost. 16. In his cross-examination, PW 4 has admitted that near the place of occurrence, there is tea-shop of one Khyali Ram towards the west of bus stand, which was open at the time of occurrence. 7 Besides, there existed shops of Dharamvir, Ram Dayal, Nisar barber, Mohd. Bux and Lalit in the vicinity of the place of occurrence and all of them were open. But none of the witnesses named in the F.I.R. is a shopkeeper of the nearby shops. Non-production of any of witnesses from the vicinity of the place of occurrence is best known to the prosecution. The Investigating Officer did not even examine any of the nearby shop-keepers under Section 161 Cr.P.C. 17. From a close scrutiny of the testimony of P.W.4, Satya Prakash, who is the real brother of the deceased and an interested witness, we find that P.W.4 has not given any explanation as to why he did not lodge the written report with the reporting police outpost situate at a distance of only about 1 k.m. from the place of occurrence. Out of the four alleged independent eyewitnesses named in F.I.R. witnesses P.W.1, P.W.2 and P.W.3 examined by the prosecution have turned hostile and they did not support the prosecution at all, while witness Ashok Agrawal, who had been appointed as Panch in the inquest proceeding, was not examined before the trial court. Witness P.W.4 in his cross-examination at page no.9 of his deposition has stated that after returning from the police station to the place of occurrence, he had gone from there. He did not know when the inquest report was prepared. He also admitted that when he left the place of occurrence, the dead body was lying there. This witness also stated that the dead body was brought to his house on the next day by the police and villagers and he did not go to hospital to take the dead body. This conduct of the P.W.4 also casts shadow of doubt on the prosecution and it does not stand to reason why the PW 4 had left the place of occurrence without getting the inquest report prepared by the police and why he did not go to the hospital to take the dead body after post mortem examination. P.W.4 has also admitted that he did not know that his brother was a journalist of any paper or not. Moreover, in his cross- examination P.W.4 has also admitted that his elder brother Om Prakash was employed in the office of Sultanpur Patti Notified Area at the time when accused Harish Negi was Chairman of the said 8 Notified Area and he was dismissed from service during the tenure of Harish Negi, therefore the possibility of animosity of the complainant against the accused Harish Negi cannot be completely ruled out. 18. It is also pertinent to mention here that the complainant Satya Prakash having been aggrieved by the judgment and order of acquittal dated 24-6-1993 passed in Sessions Trial No. 247 of 1992, whereby the accused-respondents were acquitted by the trial court, filed Criminal Revision No. 474 of 2001 Satya Prakash Vs. State of U.P. and six others. The said Criminal Revision was dismissed on merits by this Court vide order dated 7-6-2004. It has been observed by this Court that there was no legal evidence to record a finding of guilt of any of the accused and the learned Sessions Judge was fully justified to come to the conclusion that the charges against the accused were not proved beyond doubt. 19. In view of the discussion made in the foregoing paragraphs, we are of the considered view that there was no direct evidence against the accused-respondents and the prosecution utterly failed to bring home the guilt to the accused-respondents beyond reasonable doubt. The learned Additional Sessions Judge has already dealt with the evidence led by the prosecution and has rightly acquitted the accused-respondents of the charges levelled against them by extending benefit of doubt vide judgment and order dated 24-6-1992. The finding of acquittal recorded by the trial court does not warrant any interference in this appeal. The appeal preferred by the State has no force and the same is liable to be dismissed outright. 20. Accordingly, the appeal against the order of acquittal is dismissed. (B.S.Verma, J. ) ( B.C.Kandpal, ACJ ) RCP 14-09-2009 9