IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO. 84 Of 2001 (Old No. 2064/2000) Ram Karan …Appellant Versus State of Uttar Pradesh …Respondent February 21, 2011 CORAM:- HON’BLE MRS. JUSTICE NIRMAL YADAV, J. HON’BLE MR. JUSTICE SUDHANSHU DHULIA, J. Present: Smt. Nishat Intezar, Amicus Curiae for the appellant. Mr. Amit Bhatt, Addl. G.A. for the State. Nirmal Yadav, J. (Oral) This appeal, preferred under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as CrPC), is directed against the judgment and order dated 10.8.2000 passed by the Ist Additional Sessions Judge, Haridwar in Sessions Trial No. 201 of 1994, State of U.P. v. Ram Karan, vide which appellant has been convicted under Section 302 IPC and sentenced to rigorous imprisonment for life. 2. The criminal law was set in motion on the oral report made by Constable Baleshwar Tyagi, which was recorded by Head Constable Anand Prakash PW7, on the basis of which chick FIR Ex. Ka-1 was recorded. PW1 Constable Baleshwar Tyagi, along with Constbale Ved Ram, was on picket duty in Devpura area of Haridwar, when they were informed at about 11 O’clock by an informer that Saradar Ram Karan R/o Mohalla Nai Basti had murdered his uncle Vidhi Chand at about 10.45 am by causing electric burn injuries. The informer also disclosed that PW5 Omkar Singh and PW6 Guruvachan Singh, who were visiting Haridwar in connection with the publicity of 2 their medicines, had also witnessed the occurrence. However, they did not take any action and slipped away towards Himalaya Hotel, Haridwar from the spot. On receiving the information from the informer, both Baleshwar and Ved Ram went to the spot and found that dead body of a person was lying on the cot. They also found accused Ram Karan standing near the cot, and was disconnecting an electric wire from the legs of the dead body of Vidhi Chand. The accused was apprehended on the spot along with the electric wire. Both Baleshwar and Ved Ram brought the accused and the electric wire recovered from him to the police station and got the report lodged. The investigation was undertaken by PW4 S.I. Man Singh, who prepared the inquest report Ex. Ka-5 and sealed the dead body and sent the same for post-mortem along with letter to the C.M.O. Ex. Ka-6. Other papers, viz., R.I. report Ex. Ka-7, sketch of the dead body Ex. Ka-8, sample of seal Ex. Ka-4 and Ka-9, chalan lash Ex. Ka-10 were also prepared along with the inquest report. The post-mortem was conducted by PW3 Dr. R.K. Pandey at District Hospital, Haridwar on 18.8.1993 at 11.30 am. The post-mortem report is Ex. Ka-3. 3. On examination of the dead body, Dr. R.K. Pandey found the following ante mortem injuries on the person of the deceased:- “(1) Electric burn injury 7 cm x 1 cm x 5 cm deep on tip of head. (2) Electric Burn injury 1.5 cm x 1 cm x 5 cm deep on right side forehead. (3) Electric burn injury 1.5 cm x 1 cm x bone deep on palmer and outer surface of left ring finger. (4) Electric burn injury 3 cm x 1 cm on antero-medial aspect of lateral part of left leg. (5) Electric burn injury 1 cm x0.3 cm x bone deep on outer aspect of left middle finger. 3 (6) Electric burn injury 1 cm x 0.5 cm x skin deep on post. aspect of lower part of left leg. (7) Electric burn injury 1.5 cm x 1 cm x 5 cm deep on ant. Aspect of lower 1/3rd of right leg. (8) Electric burn injury 2 cm x 1 cm x skin deep 3 cm below injury no. (7). (9) Electric burn injury 1 cm x 1 cm x skin deep 3 cm below injury no. (8). (10) Abrasion 5 cm x 1 cm lat. Asp. Of lower part of Rt. Leg. (11) Electric burn injury 1.5 cm x 1 cm x bone deep on Rt. ankle joint-lateral part. (12) Electric burn injury 2 cm x 1 cm x skin deep on lower part Rt. leg post. aspect. (13) Electric burn injury 4 cm x 0.5 cm x skin deep 6 cm below injury no. (12). (14) Electric burn injury 3 cm x 1 cm x mus. Deep on back of Rt. Heel. 4. On internal examination, both the lungs were found oedematous. Both the chambers of the heart were full of dark coloured blood. Liver and spleen were congested. The stomach was empty and small intestine contained digestive food and the large intestine contained faecal matter. The death possibly occurred one day prior to conducting the post-mortem i.e. on 17.8.1993 at 10.45 am. Cause of death was due to shock and electric burn injuries. 5. On completion of the investigation, the accused was chargesheeted under Section 302 IPC, to which he pleaded not guilty and claimed trial. 6. The prosecution, in order to prove its case, examined PW1 Constable Baleshwar Tyagi, the complainant; 4 PW2 Constable Ved Ram, PW3 Dr. R.K. Pandey, PW4 S.I. Man Singh, PW5 Omkar Singh, PW6 Guruvachan Singh and PW7 Head Constable Anand Prakash. 7. On examination under Section 313 CrPC, the accused denied the allegations and the incriminating evidence alleged against him. According to him, PW5 Omkar Singh wanted to illegally occupy his house. The accused appellant had rebuked Omkar Singh and had directed him not to visit his house as he was involved in indecent representation of women, and on this account, he has been falsely implicated by Omkar Singh. 8. We have heard learned Counsel for the parties and have carefully perused the trial court record. 9. Learned Counsel for the appellant argued that the findings of the learned trial court are totally perverse and the court has not properly appreciated the evidence on record. According to her, there is no direct ocular evidence with regard to the alleged murder of Vidhi Chand. According to prosecution, PW1 Baleshwar Tyagi and PW2 Ved Ram were informed by some informant about alleged injuries being caused to deceased Vidhi Chand by way of causing electric current at about 10.40 am in the morning and thereafter both of them went to the house of Ram Karan on foot, which was at a distance of about 1.25 kms. Even the informer had come to inform them on foot. It is argued that it must have taken them at least 45 minutes to reach the place of occurrence after the alleged occurrence. But surprisingly, the accused was found by them still standing near the dead body of Vidhi Chand along with the electric wire as if he was waiting for both the Constables to reach the spot to apprehend him. Learned Counsel further pointed out that according to the informant, PW5 Omkar Singh and PW6 5 Guruvachan Singh had witnessed the occurrence. Both of them were staying at the house of Ram Karan during the previous night. But both of them did not inform the police, or the other residents of the locality. Even accused Ram Karan has not denied that both of them had stayed in his house. 10. The trial court has based the conviction of the accused mainly relying on the testimony of PW5 Omkar Singh and PW6 Guruvachan Singh. After going through the statements of both these witnesses, we are of the view that their testimony is not trustworthy and it does not inspire confidence. A perusal of the statement of PW5 Omkar Singh shows that he along with Guruvachan Singh (PW6) stayed in the house of Ram Karan on 16.8.1993 as they had to meet their spiritual Guru Ram Swaroop. On the next morning i.e. on 17.8.1993 at about 8.30 am, they had gone to see off Ram Swaroop at the bus stand, Haridwar, from where he had boarded the bus for Kullu. This statement of Omkar Singh has not been challenged nor any suggestion has been given to this witness by the prosecution in the examination. Rather, the suggestion has been given by the defence Counsel that Omkar Singh and Guruvachan Singh has committed the murder of Vidhi Chand. It is further revealed that both Omkar Singh and Guruvachan Singh had come back from the bus stand and went to the first floor room of the house of Ram Karan. On hearing some noise, they came down and found that Vidhi Chand had died. They have simply stated that Ram Karan was having an electric wire in his hand, which was connected in the electric board. Both PW5 Omkar Singh and PW6 Guruvachan Singh had stated that on their enquiry, the accused had disclosed that Vidhi Chand had executed a WILL in his favour with regard to his property, but now, he wanted to change his WILL in favour of some other person and, therefore, he had committed the murder of Vidhi Chand. Undoubtedly, there is nothing on record to show that deceased had executed 6 any WILL in favour of Ram Karan, the accused appellant, or there was any likelihood of his changing the alleged WILL in favour of some other person. 11. Statements of PW5 Omkar Singh and PW6 Guruvachan Singh do not inspire confidence. According to Omkar Singh, there was another person, namely, Sevak Ram, who was disconnecting the wire from the legs of Vidhi Chand. According to him, he left the place of occurrence at about 11 am and went towards the banks of Ganges. He further stated that he did not raise any noise nor disclosed about the incident to anyone. As per his statement, he knew Ram Karan for the last 5- 6 years, and had been staying at his house on earlier occasions also, but he had seen Vidhi Chand for the first time on that day. He further stated that he did not find any burn injuries on the person of the deceased. However, his testimony is contradictory to the statement of PW6 Guruvachan Singh. According to him three persons had stayed in the first floor portion of the house of Ram Karan and all the three had came down when the incident took place. He had seen accused Ram Karan near the dead body and also seen Omkar Singh standing near the dead body at a distance of three yards. He further stated that police had reached 20-30 minutes after the occurrence and he along with Ram Karan and Omkar Singh were taken to the police station. They were, however, released during the night on the same day. According to Omkar Singh, they went towards the banks of Ganges after the occurrence, whereas Guruvachan Singh stated that he along with Ram Karan and Omkar Singh were taken away by the police. Thus, we find material contradiction between the statements of PW5 Omkar Singh and PW6 Guruvachan Singh about their presence at the house of Ram Karan and their movement after the occurrence, as referred to above. Learned trial court has based the conviction 7 mainly relying on the statements of PW5 Omkar Singh and PW6 Guruvachan Singh. 12. Testimony of both PW5 Omkar Singh and PW6 Guruvachan Singh is also not supported by the medical evidence. PW5 Omkar Singh, in the cross-examination, has stated that he did not find any burn injury on the dead body of Vidhi Chand. He only found some signs of wires on his feet. At the same time, Guruvachan Singh also stated that there was no burn injury by electric current on head, face and back of the deceased except on his feet, whereas as per the medical evidence, there were burn injuries almost on the entire body of the deceased, from head to toe. Though PW3 Dr. R.K. Pandey has stated that burn injuries on the dead boy of Vidhi Chand could not be caused accidentally, and these could only be received if it was intentionally caused by causing electric current with naked wires on different parts of the body of Vidhi Chand. However, there is no evidence as to who had caused these electric burn injuries on the person of the deceased. 13. On careful scrutiny of the entire evidence on record, we are of the view that the prosecution has miserably failed to prove that it was the accused who had caused the burn injuries on the person of the deceased Vidhi Chand. Even the motive, as suggested by the prosecution for causing the burn injuries, is not proved on the record. The statements of the alleged eyewitnesses PW5 Omkar Singh and PW6 Guruvachan Singh are totally contradictory and against the medical evidence on record. We are, therefore, of the view that the findings of the trial court are totally perverse and are based on misreading of evidence. Moreover, the Apex Court, in the case of Alla Rakha K. Mansuri v. State of Gujarat reported in 2002 (1) RCR (Criminal) 748, has held that where in a case two views are possible, one view that favours the accused has to be adopted by 8 the Court. However, it is a case where, in view of the evidence on record, it can safely be said that the prosecution has failed to prove the guilt of the accused. 14. In view of above discussion of evidence and legal proposition, the appeal is accepted. The impugned judgment and order of the conviction and sentence dated 10.8.2000, passed by the Ist Additional Sessions Judge, Haridwar in Sessions Trial No. 201 of 1994, State of U.P. v. Ram Karan, is set aside. The accused appellant Ram Karan is acquitted of the charge. He need not surrender unless required in connection with any other case. 15. The office is directed to send back the lower court record for compliance of the order. (Sudhanshu Dhulia, J.) (Nirmal Yadav, J.) 21.2.2011 21.2.2011 prabodh