IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Government Appeal No. 58 of 2001 (Old No.2584/1997) State … Appellant Versus Rajendra Nautiyal …Respondent Sri S.S. Adhikari, A.G.A. for the State/appellant Sri Sandeep Kothari, Advocate for the respondent Hon’ble B.C. Kandpal, J. Hon’ble Nirmal Yadav, J. Per :Hon’ble B.C. Kandpal, J.(Oral) This Government Appeal preferred by the State under Section 378(3) of Cr.P.C. is directed against the judgment and order dated 24.5.1997 passed by Sessions Judge, Pauri Garhwal, in Sessions Trial No.30 of 1995, State versus Rajendra Nautiyal, whereby accused-respondent has been acquitted of the charge of offence punishable under Section 302 I.P.C. 2- Prosecution story in brief is that accused Rajendra Nautiyal was married to Smt. Rekha Nautiyal, who is the daughter of Smt. Premwada Naithani (deceased). The accused was working as constable in R.P.S.F. and had come on leave a day prior to this occurrence. There was some quarrel in between husband and wife. The accused was asking for Rs.20,000/- from the deceased because she had given Rs.20,000/- to the elder brother of the accused, so the accused also wanted that he should be given Rs.20,000/-. The accused had demanded Rs.20,000/- from the deceased. The deceased had 2 shown her inability, on which the accused got infuriated and attacked the deceased with shovel (Fawrah), as a result of which deceased Smt. Premwada Naithani died on the spot. Thereafter accused tried to assault Smt. Rekha Nautiyal also, who ran away leaving her children and the dead body of her mother on the spot and reached the police station and lodged a F.I.R. (Ext.Ka.1) of this occurrence, on the basis of which a case was registered against the accused and investigation was taken over by S.I. Anil Kumar, who was the then S.O. of P.S. Kotdwara. Immediately he started the investigation, proceeded on the spot, took the dead body of the deceased in his possession, got prepared the Panchayatnama. Other formalities were also got completed. He prepared a site map. Thereafter, while the investigations were in progress, he arrested the accused and after his arrest, the accused on his own produced the ‘Fawrah’ from which the alleged crime was said to have been committed. All the formalities regarding this recovery were got completed and after completion of the investigation charge sheet was submitted against the accused. 3- After submission of the charge sheet accused- respondent was committed to the court of Sessions and the learned Sessions Judge after hearing the parties framed charge of offence punishable under Section 302 I.P.C. against accused-respondent. The accused pleaded not guilty and claimed to be tried. 4- The prosecution in order to bring home guilt 3 against the accused got examined as many as 12 witnesses in the case. Out of these 12 witnesses, PW-1 Smt. Rekha Nautiyal is the complainant and alleged eyewitness of the occurrence, who lodged the F.I.R. (Ext.Ka.1) and proved the same. PW-2 Anil Kumar is the neighbour of the deceased and scribe of the F.I.R. PW-3 R. John is the alleged eyewitness of the case. PW-4 S.I. Subhash Chandra Baghel is the witness of Panchayatnama. PW-5 Dr. Vijai Kumar conducted the autopsy on the dead body of the deceased. PW-6 S.I. Ram Pal Singh is the investigating officer who submitted the charge sheet against the accused. PW-7 S.I. Sunil Kumar Singh, S.O. Kotdwari, is the main investigating officer because F.I.R. was lodged in his presence and thereafter he himself had taken over investigation and completed other formalities of the investigation. 5- The accused/respondent in his statement under Section 313 Cr.P.C. denied all the allegations of prosecution. However, no oral or documentary evidence was adduced by the accused-respondent in his defence. 6- The trial court having considered the entire evidence on record and hearing learned counsel for parties found not guilty the accused/respondent of the offence punishable under Section 302 I.P.C. and acquitted him of the charge levelled against him, vide impugned judgment and order dated 24.5.1997. 4 7- Feeling aggrieved by the aforesaid impugned judgment and order, the State has preferred the present appeal which has been placed before us for disposal. 8- We have heard Sri S.S. Adhikari, learned A.G.A. for the State/appellant, Sri Sandeep Kothari, learned counsel for the respondent and perused the record. 9- Before further discussion it is pertinent to mention here that autopsy on the dead body of the deceased Smt. Premwada Naithani was conducted by PW-5 Dr. Vijai Kumar and post mortem report was prepared vide Ext.Ka.12, in which details of the injuries have been given. The doctor (PW-5) in his report opined that deceased had died on account of injuries, which she had received. He has further opined that injuries found on the person of deceased were caused by sharp edged weapon, while some were caused by blunt weapon and, they were sufficient to cause her death. The doctor at the end of its post mortem report opined that cause of death was shock and haemorrhage due to ante mortem injuries. 10- The above medical evidence clearly establishes that the deceased Smt. Premwada Naithani died homicidal and unnatural death. Now this Court has to see whether the trial court erred in law in acquitting accused-respondent Rajendra Nautiyal by holding that prosecution has failed to prove the charge against him. 5 11- On behalf of the State-appellant it is argued that there are two eyewitnesses namely PW-1 Smt. Rekha Nautiyal and PW-3 R. John, who had seen the incident, but the trial court has erred in law in not believing their testimony. We have re-examined and re-assessed the entire oral and documentary evidence in the case and do not find that the trial court has committed any error of law or that of fact in acquitting the accused. Though aforesaid two witnesses had supported the prosecution but their testimony appears to be shaky and doubtful. 12- PW-1 Smt. Rekha Nautiyal has stated in her evidence that on the date of occurrence at 2.00 a.m. in the night her husband (accused) had pressed her neck and had demanded Rs.20,000/- from her. Thereafter he had released her neck. This witness has further stated that on the next day i.e. on 12.12.1994 at 9-9½ her husband told her that she had given Rs.20,000/- to his brother, then she told him that she had not given any money to his brother and he would talk with her mother in this regard. This witness has also stated that accused was seen in front of Sahen (courtyard) where her mother was sitting and he started quarrelling with her. At that time she was stitching the clothes. Her husband was asking for Rs.20,000/- from her mother and saying that she had given Rs.20,000/- to his elder brother, so he should also be given Rs.20,000/-. Thereafter, her husband attacked her mother with shovel (Fawrah) and also tried to assault her also, but she ran away. This witness 6 has further stated that while she was running away R. John met her in the way and further Anil Kumar Singhal also met her on the way and she told about the occurrence to Anil Kumar Singhal. Thereafter, she got the report scribed through Anil Singal at home. Regarding R. John (PW-3) this witness has stated that at the time when the accused was assaulting her mother, R. John was going up in his house and he was present in his house. This witness has also stated that when she had to run away from the spot, her mother had already been died on account of injuries caused by ‘Fawrah’ and occurrence is of 12.12.1994 at 1.00 p.m. in the day. This witness (PW-1) has also mentioned in the F.I.R. that at the time when the accused was assaulting the deceased, many passers by of the road had seen the occurrence. Neighbour R. John had come at the scene of occurrence and her both children were also present over there. 13- PW-3 R. John, who is another alleged eyewitness of the occurrence, has stated in his evidence that on the day of occurrence i.e. on 12th December, 1994 at about 1.00 p.m. in the day he was at his home and when he was standing outside his house near tap washing his hands, he heard some noise of shrieks from the side of Sasural of Rajendra Nautiyal. When he saw towards roadside he noticed that accused was assaulting his mother- in-law with Fawrah. This witness has further stated that accused had given two blows with Fawrah on the person of Premwada in his presence also. Then he saw accused chasing Rekha Nautiyal also. This 7 witness has further stated that Premwada had died on account of injuries, which she had received with Fawrah. This witness has also stated about the alleged recovery of Fawrah and he was also a witness of other memos, i.e. taking of bloodstained clothes, bloodstained soil etc. which were got prepared by the police 14- After a careful analysis of testimony of PW-1 Rekha Nautiyal and PW-3 R. John, who are said to be the eyewitnesses of the occurrence, we find that their evidence is not cogent and reliable. There is material contradiction in the statements of these two eyewitnesses. PW-1 Rekha Nautiyal in her statement has stated that at the time of occurrence PW-3 R. John was going up in his house and present in his house, while PW-3 R. John himself has stated in his statement that at the time of occurrence he was standing outside his house near tap washing his hands. Further, PW-1 has stated that when this occurrence took place, her mother was sitting on a cot and there was no bedding like Dari, Chaddar etc. on the cot, whereas PW-3 has stated that Dari, Chaddar, which was on the bed, was bloodstained and was taken into custody by the police and, this witness also proved memo of recovery of Dari, Chaddar etc. 15- The medical evidence also does not support the prosecution case. As per the opinion of the Dr. Vijai Kumar (PW-5), who conducted the autopsy of deceased Smt. Premwada Naithani, the injuries found on the person of the deceased could have 8 been caused by sharp edged weapon and blunt weapon also. Injury nos. 1,2,3,4 & 7 mentioned in the post mortem report (Ext.Ka.12) could have been caused by sharp edged weapon, while injury nos. 5 & 6 could have been caused by blunt weapon. The ‘Fawrah’ which is said to have been used by the accused, was shown to this witness and, he was of the opinion that it is not sharp edged cutting weapon and it could not be said as sharp edged cutting weapon. The front of this Fawrah (Ext.1) was circular, but according to medical evidence the injuries were not circular in shape. Hence, in view of this fact also it seems doubtful that this Fawrah would have been used in this offence. 16- Apart from the above points, there are other circumstances also which suggest that the manner and the time at which the F.I.R. is said to have been lodged seem highly doubtful. According to the investigating officer, incident took place at about 1.00 p.m. and F.I.R. was lodged at 1.40 p.m. Perusal of the F.I.R. shows that when accused assaulted and killed his mother-in-law and had run to attack the complainant, she ran to the police station and lodged the F.I.R. immediately. Anil Kumar Singhal (PW-2) is the scribe of the F.I.R. PW- 1 Rekha Nautiyal has stated that soon after the occurrence, she ran to the police station at 2.30 p.m. and till then no F.I.R. was lodged by her at the police station. Thereafter the F.I.R. was got scribed. PW-2 Anil Kumar Singhal has stated that while PW- 1 was going to police station, he met her but she went directly to the police station. He went to 9 Rekha’s house and Ext.Ka.1 was got written in her house. He has also stated that report was given to the police after panchayatnama proceedings had been completed. In this way, it becomes quite clear from the statements of witnesses F.I.R. of this occurrence was not lodged at 1.40 p.m. as is the case of the prosecution. This fact also casts doubt on the veracity of the prosecution case. 17- Further, the case of the prosecution is that occurrence took place at about 1.00 p.m. in a busy locality of Kotdwar township, where there are several houses and many of the residents were present at the time of occurrence. PW-1 Rekha Nautiyal has stated that at the time when accused was assaulting the deceased, many passers-by of the road had seen this occurrence. Neighbour R. John (PW-3) had come at the scene of occurrence and her both children were also present on the spot. Regarding R. John, PW-1 Rekha Nautiyal has admitted that her husband (accused) had doubt about her relationship with this man. Only PW-1 Rekha Nautiyal and PW-3 R. John have been produced by the prosecution as witnesses. These witnesses appear to be interested witnesses. Neither the children of complainant nor any independent witness from the locality has been examined, or was made witness, nor any recovery was made in their presence. They would have been the best persons to throw the light on the factum of the occurrence. Their non-production also casts doubt on the authenticity of the prosecution case. 10 18- In view of the above, we are of the view that prosecution has failed to establish its case beyond reasonable doubt against the accused-respondent under Section 302 I.P.C. The reasons recorded by the trial court for acquittal of the accused- respondent are based on material on record and we do not find any ground to interfere with the same. The trial court has rightly found not guilty the accused-respondent for the offences of murder of deceased Smt. Premwada Naithani. 19- In view of the above, appeal lacks merit and is liable to be dismissed. 20- The appeal is dismissed. The impugned judgment and order dated 24.5.1997 passed by the trial court is hereby confirmed. (Nirmal Yadav, J.) (B.C. Kandpal, J.) 16-06-2010 SP