RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No. 1479 of 2001 (Old No. 1837/1995) Mor Singh & Another .…. Appellants/Accused Versus State of U.P. …………… Respondent September 15, 2009 Mr. Dinesh Chauhan, Advocate i/b Mr. N.S. Negi, Advocate for the appellants. Mr. M.A. Khan, Brief Holder for the State/respondent. HON’BLE DHARAM VEER, J. This appeal, preferred by the appellants under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.), is directed against the judgment and order dated 10.11.1995 passed by the Sessions Judge, Tehri Garhwal in Sessions Trial No. 37 of 1992, State v. Mor Singh & Anr., whereby the appellants/accused Mor Singh and Karan Singh have been convicted under Section 304 Part II read with Section 34 of Indian Penal Code, 1860 (for short, IPC) and each of the appellants/accused have been sentenced to undergo R.I. for five years. 2. In brief, the prosecution case is that on 9.11.1989 at 8 am, Kasturi Devi resident of village Devgaddi, Patti Lostu lodged an FIR (Ex. Ka-1) at Patwari Circle Ringoli with the averments that on 5.11.1989 at about 5.30 pm, her son Prem Singh was in the house. When she was giving grass to the cow and her calf, she heard cries of her son Prem Singh. When she went towards his room, she saw the appellants/accused Mor Singh and Karan Singh running towards their own house. When she reached near her son, she saw him crying. Prem Singh told her that the appellants/accused have beaten him very brutally. She 2 further averred in the said FIR that she was old and could not come to the Patwari chowki nor took her son for the treatment and as a result of the said brutal beating, her son Prem Singh died on 8.11.1989 at about 11 am. 3. With the aforesaid averments, FIR Ex. Ka-1 was lodged by Kasturi Devi. On the basis of this report, chick FIR Ex. Ka-3 was prepared by Patwari Baisakh Singh Kantura (PW6) on 9.11.1989 at 8 am. Necessary entries were made by him in the GD. Copy of GD is Ex. Ka-4. (In rural hilly areas of State of Uttarakhand, the Patwaris and certain revenue officials are vested with police powers vide U.P. Govt. Notification NO. 494/VIII-418-16 dated 7/3/1916). Patwari Baisakh Singh Kantura investigated the case. During the course of investigation, on 9.11.1989, the I.O. prepared the site plan Ex. Ka-5, inquest report Ex. Ka-6, photo lash Ex. Ka-7 and took the dead body of Prem Singh to the Combined Hospital, Tehri for the post mortem. Post mortem was conducted by PW4 Dr. R.K. Pant on 10.11.1989 at 2 pm, who prepared the post mortem report Ex. Ka-2. During the course of investigation, the I.O. recorded the statements of the witnesses and after completing the investigation, filed the chargesheet Ex. Ka-9 against the appellants/accused under Section 304 IPC. 4. Learned Chief Judicial Magistrate, Tehri after giving the necessary copies of the documents to the appellants/accused as prescribed under Section 207 CrPC, committed the case to the Court of Sessions on 16.12.1992. 5. On 25.6.1993, learned Sessions Judge, Tehri Garhwal framed the charge against the appellants/accused under Section 302 read with Section 3 34 IPC. The charge was read over and explained to both the appellants/accused, who pleaded not guilty and claimed to be tried. 6. To prove its case, the prosecution has examined PW1 Asha Lal, who scribed the written report Ex. Ka-1 ; PW2 Prem Das; PW3 Soban Singh; PW4 Dr. R.K. Pant, who conducted the post mortem of the dead body and prepared the post mortem report Ex. Ka-2; PW5 Bhupal Singh, Peon and PW6 Baisakh Singh, Patwari and the I.O. of the case. 7. Thereafter, statements of the appellants/accused were recorded under Section 313 CrPC. The oral and documentary evidence were put to both of them in question form, who denied the allegations made against them and stated that they have been falsely implicated in the case. However, in defence, they did not produce any documentary or oral evidence. 8. After hearing learned counsel for the parties and after appreciating the evidence available on record, learned Sessions Judge, Tehri Garhwal vide his judgment and order dated 10.11.1995 convicted and sentenced to the appellants/accused as discussed above. Against the aforesaid judgment and order dated 10.11.1995, the appellants/accused have preferred the present appeal. 9. I have heard learned Counsel for the parties and have carefully perused the entire material available on the record. 10. Before any further discussion, it would be pertinent to mention the ante mortem injuries found on the body of the deceased Prem Singh as mentioned in the post 4 mortem report Ex. Ka-2 and the same are reproduced as below: “(1) Lacerated wound 3 cm x 1 cm bone deep on occiput, margins irregular. (2) Swollen neck. (3) Bleeding (clotted) from left nostril and also in buccal cavity. (4) Multiple abrasions on right forearm. (5) Contusion 4 cm x 3 cm on left hip, bluish in colour. (6) Lacerated wound 3 cm x 1 cm on anterior aspect of left leg. Cause of Death, coma and shock due to injuries.” 11. To prove the aforesaid post mortem report Ex. Ka-2, the prosecution has examined PW4 Dr. R.K. Pant, who has proved the same and has stated that on 10.11.1989, he was posted at Combined Hospital, Tehri and at 2 pm on that day, the autopsy of the dead body of Prem Singh was conducted by him, who had expired two days before the post mortem. In the cross-examination, he has stated that these injuries could have been caused on 5.11.1989 or on 6.11.1989 and further stated that the said injuries could also be caused on 7.11.1989. 12. To further prove its case, the prosecution has examined PW1 Asha Lal, who has stated he was the Pradhan of the Gram Sabha. Appellants/accused and the deceased were known to him. On 5.11.1989 at 5.30 pm, while he was in another village, Subhaga Devi had come to call him. He went to Devagaddi. When he reached there, deceased Prem Singh was lying in his room. The room was murky. At that time, Soban Singh (PW3) resident of village Devagaddi had come. He asked Soban Singh to go inside and lit up the lamp. Prem Singh told him that the appellants/accused Mor Singh and Karan Singh had beaten him. He saw the injury below his knee. He was not even able to express properly and was under some intoxication. His mother Kasturi Devi told him that the 5 appellants/accused had beaten him. Since it got much murkier, therefore, he returned to his house. On 8.11.1989, when he heard cries coming out from the house of Prem Singh, he went there. Then he saw that Prem Singh was dead. His mother got the report scribed by him. When he was brining the said report to Patwari chowki on 9.11.1989 at 8 am, he saw Bhupal Singh (PW5), Peon of the Patwari coming from the opposite direction. He handed over the said report to him and asked him to give it to Patwari. That report is Ex. Ka-1 which was written by him on the dictation of Kasturi Devi. This witness has further stated that he had gone to Devagaddi on 6.11.1989 to see the condition of Prem Singh. Then Subhaga Devi asked him as to what he did regarding the incident that Prem Singh had done with her. Thereupon he told her to herself lodge the report. In the cross-examination, he has stated that there was injury on the left knee of Prem Singh. There was also one or two reddish contusions on his back. He has further stated that he had not seen the incident by his own eyes and Prem Singh was unconscious and was under intoxication when he had narrated the incident to him. He has further stated that when he returned at 5.15 pm on 5.11.1989, his wife told him that Subhaga Devi of Devagaddi village had come to his house to complain that Prem Singh had quarreled with her. For the investigation of that quarrel he had left for Devagaddi on the same day and reached there at about 5.45 pm. Four people, viz., Pratap Singh, Jabra Singh, Puran Singh and his Manvar Singh were present at the place of occurrence before his arrival. He has further stated that deceased Prem Singh was unconscious as he was under the influence of alcohol and he was unable to speak clearly and properly. This witness has further stated in his cross-examination that he had not seen any 6 other injury on the body of Prem Singh except that knee injury. 13. PW2 Prem Das has stated that the appellants/accused and the deceased were known to him. On 5.11.1989 he had gone to Tegarh market to purchase some food articles. Deceased Prem Singh had met him at Tegarh and both of them came together up to Mahadev Nametak from where they took their respective paths. He has further stated that when he reached at his house, his mother told him that he forgot to bring the tobacco. Thereupon when he proceeded towards the house of Prem Singh in order to fetch tobacco from him, he saw Subhaga Devi and Prem Singh hurling abuses on each other. Prem Singh was under the influence of alcohol. When he came on the slope, he saw that Subhaga Devi was running towards Khola and Puran Singh was following her. He has further stated that when he reached in the field near the gaushala of Prem Singh, he heard cries and he saw that deceased Prem Singh was lying on his back in his courtyard and the appellants/accused Mor Singh and Karan singh were present at a distance of about 15 feet from him and both the appellants/accused were armed with lathis. Govind Singh was also present there and Pooran Singh was going towards his house. He has further stated that he had not seen the appellants/accused beating Prem Singh with the dandas. This witness did not support the prosecution case and he was cross-examined by the prosecution. In the statement Ex. Ka-8 recorded under Section 161 CrPC, this witness has stated that he had seen the incident when the appellants/accused were beating the deceased Prem Singh with dandas. But on the contrary, while deposing before the trial court, he has stated that he had not seen the appellants/accused beating the deceased Prem Singh with dandas. Hence, 7 prosecution has not relied upon the statement of this witness. But even in the cross-examination, this witness has not supported the prosecution case and has stated that he did not state to the I.O. in his statement under Section 161 CrPC that he had seen the appellants/accused beating Prem Singh with the dandas. 14. PW3 Soban Singh has stated that the appellants/accused and the deceased were known to him. On 5.11.1989, he had gone at the shop of deceased Prem Singh to purchase the bidi. Asha Lal (PW1), Pradhan also came there. Prem Singh was lying in his room. When he asked him then Prem Singh replied that the appellants/accused Mor Singh and Karan Singh had put him in the room after having beaten him. He has further stated that there was injury in his feet below the knee and also contusion on his back. Prem Singh died on 8.11.1989. In his cross-examination, he has stated that when he reached in the house of Prem Singh, he was unconscious and was crying in pain. He was not able to walk. 15. PW5 Bhupal Singh has stated that on 9.11.1989 he was working as a Peon of Patwri. When he was going to his quarter from the chowki, Asha Lal (PW1) of village Khola met him in the way, who asked him as to where was Patwari, Ringoli. He replied to him that Patwari would be at the chowki. He has further stated that thereafter Asha Lal gave him a paper and asked to him to immediately give it to Patwari, Ringoli. This witness has stated that the said paper was regarding the death of Prem Singh and he also identified the said paper as Ex. Ka-1. 16. PW6, Baisakh Singh Kantura, the I.O. of the case has stated that on 9.11.1989 he was posted as Patwari, 8 Ringoli. Bhupal Singh (PW5) came to him along with the paper Ex. Ka-1, on the basis of which he prepared the chick FIR Ex. Ka-3. He has also made the necessary entries in the GD, copy of which is Ex. Ka-4. On the same day he inspected the place of occurrence and prepared the site plan Ex. Ka-5. He has further stated that after taking the dead body into his possession, he prepared the Panchayatnama and photo lash i.e. Ex. Ka-6 and Ka-7 respectively. He brought the dead body at Tehri for the post mortem. He arrested the appellants/accused on 11.11.1989. He recorded the statement of Soban Singh (PW3) under Section 161 CrPC on 20.11.1989 and statements of Prem Das (PW2) and Bhupal Singh (PW5) on 12.5.1990. Statement of Soban Singh is Ex. Ka-8. He has further stated that after completing the investigation, he filed the chargesheet Ex. Ka-9 against the appellants/accused on 12.5.1990. In his cross- examination, he has stated that from 5.11.1989 to 9.11.1989 he remained in his chowki and entry thereof was also in the GD. Bhupal Singh, Peon (PW5) reached there at 8 am on 9.11.1989. He has further stated that he prepared two site plans of the place of occurrence. Second site plan was prepared later as said by the Public Prosecutor. He has further stated that the site plan Ex. Ka-5 bore two dates i.e. 9.11.1989 and 27.10.1990. 9.11.1989 was the right date, whereas 27.10.1990 was put on it when directed by the Public Prosecutor. Second site plan was prepared on 26.11.1991, which is paper no. 7-Kha. 17. Thereafter, statements of the appellants/accused were recorded under Section 313 of CrPC. The oral and documentary evidence were put to both of them in question form, who denied the allegations made against them and stated that they have been falsely implicated in 9 the case. However, in defence, they did not produce any documentary or oral evidence. 18. Learned Counsel for the appellants/accused argued that on the basis of the evidence discussed above, the prosecution has not proved the case against the appellants/accused beyond reasonable doubt. I find substance in the argument of the learned Counsel for the appellants/accused due to the following reasons: (i) That there is no eyewitness of the alleged incident. Not even a single witness has stated that he had seen the said incident. No witness has stated that the appellants/accused had caused the injuries to the deceased Prem Singh. (ii) That the incident is said to have taken place on 5.11.1989 at about 5.30 pm and Prem Singh expired on 8.11.1989 at 11 am, but the FIR of this incident was lodged after four days i.e. on 9.11.19989 at 8 am, whereas the police chowki was located at a distance of only 3 kms from the place of occurrence. This delay in lodging the FIR has not been explained by the prosecution by showing the sufficient cause, which creates reasonable doubt on the prosecution story. (iii) That PW1 Asha Lal, Pradhan has stated that on 5.11.1989 he had gone to Devagaddi for investigation of another complaint of Subhaga Devi. There he found that the deceased Prem Singh was lying in a dark room in unconscious condition. He asked Soban Singh (PW3) to lit up the lamp. He has also stated that Prem Singh, who was also under the influence of alcohol, had told him that the appellants/accused had beaten him. But undisputedly he has not 10 lodged the FIR until 9.11.1989 and did not even inform to anybody about the said incident, which also creates reasonable doubt in the prosecution story. (iv) That PW2 Prem Das has not supported his own statement given to the Patwari under Section 161 CrPC that he had seen the appellants/accused beating the deceased Prem Singh with dandas. On the contrary, in his statement before the trial court, he has stated that he had neither seen the appellants/accused beating the deceased Prem Singh nor given any statement to this effect under Section 161 CrPC before the Patwari. Thus, this witness has not supported the prosecution case. (v) That PW3 Soban Singh has also not anywhere stated that he had seen the appellants/accused beating the deceased Prem Singh. Rather, he has stated that when he reached at the house of Prem Sing, he was lying there in the room in unconscious condition and was also under the influence of alcohol and that Prem Singh told him that the appellants/accused had put him in the room after beating him. (vi) That PW1 Asha Lal, PW2 Prem Das and PW3 Soban Singh, all these witnesses have stated that the deceased Prem Singh was drunk on the alleged date of incident. When they had seen him, he was in unconscious condition and was not even able to speak properly. Hence, statement alleged to have been given by the deceased Prem Singh under the aforesaid circumstances not supported by any eyewitness 11 is not enough to sustain the conviction of the appellants/accused. (vii) That PW3 Soban Singh has stated in his statement under Section 161 CrPC recorded on 20.11.1989 that Prem Singh had told him about the said incident when he had gone to his house on 5.11.1989. But he did not disclose this fact to anybody or to the I.O. for 15 days. Likewise, PW2 Prem Das has disclosed about the alleged incident to the I.O. after nearly six months i.e. on 12.5.1990, when his statement was recorded under Section 161 CrPC. As such, no veracity can be attached to the statements of PW2 and PW3, which creates reasonable doubt on the prosecution story. (viii) That as per the post mortem report Ex. Ka-2 prepared by PW4 Dr. R.K. Pant, there was injury on the head and neck of the deceased Prem Singh. But PW1 Asha Lal, PW2 Prem Das and PW3 Soban Singh have stated that they had only seen the injury below the knee of Prem Singh and contusion on his back. This contradiction regarding the injuries of the deceased Prem Singh also creates reasonable doubt on the prosecution story. (ix) That PW4 Dr. R.K. Pant has stated in his cross- examination that the injuries found on the body of deceased Prem Singh could have been caused on 5.11.1989 or on 6.11.1989 or even on 7.11.1989. Thus, PW1, PW2 and PW3 did not see any injury on the head or neck of the deceased Prem Singh, which were found by Dr. R.K. Pant at the time of post mortem on 10.11.1989 at 2 pm. Hence, it might be possible that the injuries on the head or neck might 12 have been sustained by the deceased Prem Singh on later dates in some other incident and the same has also been stated as a possibility by this witness Dr. R.K. Pant. 19. Learned Counsel for the appellants/accused vehemently argued that the alleged incident was said to have been taken place at 5.30 pm on 5.11.1989, but the FIR of this incident was lodged after four days on 9.11.1989 at 8 am in spite of the fact that Prem Singh died on 8.11.1989 at 11 am and the police chowki was only three kilometers away from the place of occurrence and this delay in lodging the FIR could not be explained by the prosecution by showing the sufficient cause. I find force in the argument of the learned Counsel as after the said incident which happened at 5.30 pm on 5.11.1989, the deceased Prem Singh who was injured at that time had not reported the incident immediately and he preferred to stay at his house. Moreover, PW1 Asha Lal, PW2 Prem Das and PW3 Soban Singh visited him on that day, but none of them had reported the incident and the police chowki has been shown to be situated at only three kilometers from the place of occurrence. The FIR could be lodged after four days on 9.11.1989 at 8 am. This delay in lodging the FIR has not been explained properly by the prosecution by showing the sufficient cause. Therefore, this unexplained delay in lodging the FIR is also fatal to the case of prosecution. Learned Counsel for the appellants/accused placed his reliance upon the case of State of Karnataka v. Mapilla P.P. Soopi reported in (2003) 8 SCC 202, wherein at para 4, the Apex Court has held as under: “Undue delay in lodging the complaint without acceptable evidence has also contributed to the doubt in the prosecution 13 case. Hence, the High Court was justified in allowing the appeal.” 20. Thus, in view of my foregoing discussion and legal proposition, it can safely be inferred that the prosecution has miserably failed to prove its case against the appellants/accused beyond reasonable doubt for the offence punishable under Section 304 Part II read with Section 34 IPC and the appellants/accused are entitled to get the benefit of doubt. As such, the learned trial court erred in holding the appellants/accused guilty and convicting them under Section 304 Part II read with Section 34 IPC and, therefore, the impugned judgment and order of the trial court, in view of the above narrated legal proposition, evidence and facts & circumstances of the case, is not justified and is liable to be set aside. 21. Resultantly, for the reasons recorded above, the appeal is allowed. Appellants Mor Singh and Karan Singh are acquitted of the charge leavelled against them. The judgment and order dated 10.11.1995 passed by the Sessions Judge, Tehri Garhwal in Sessions Trial No. 37 of 1992, State v. Mor Singh & Anr., convicting the appellants under Sections 304 Part II read with Section 34 IPC is quashed. Consequently, sentence of rigorous imprisonment for a period of five years is hereby set aside. Appellants are on bail. They need not surrender. Their bail bonds are cancelled and sureties are discharged. 22. Let the lower court record be sent back. (Dharam Veer, J.) 15.9.2009 PRABODH