Reserved IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Government Appeal No. 117 OF 2001 State of Uttaranchal ………….Appellant. versus Satnam Singh …..Respondent. with Criminal Government Appeal No. 118 OF 2001 State of Uttaranchal ………….Appellant. versus Gurbaj Singh …..Respondent. with Criminal Government Appeal No. 119 OF 2001 State of Uttaranchal ………….Appellant. versus Balbir Singh and six others. …..Respondents. Present:- Sri Prabhaka Joshi, Brief Holder for the State/appellant. Sri B.S. Parihar, Advocate holding brief of Mr. Sandeep Tandon, Advocate for the respondents. Coram: Hon’ble Barin Ghosh, C.J. Hon’ble U.C. Dhyani, J. Per: U.C. Dhyani, J. Since all the above titled appeals arise out of a common judgment, they are being decided by this Court altogether by a common judgment. 2. The above titled appeals, preferred under Section 378 of Code of Criminal Procedure, 1973, are directed against judgment and order dated 31.1.2001 passed by the Sessions Judge, Udham Singh Nagar, in Sessions Trial No. 66 of 1998 State v. Balbir Singh and others, Sessions Trial No. 67 of 1998 State v. Satnam Singh and Sessions Trial No. 68 of 1998 State v. Gurbaj Singh, 2 whereby the accused respondents have been acquitted of charge of offences punishable under Sections 147, 148, 149, 307, 302 of Indian Penal Code, 1860 (for short, IPC), and Sections 25 & 30 Arms Act. 3. Heard learned AGA for the State/appellant, learned counsel for the respondents and perused the lower court record. 4. Prosecution story, in brief, is that on 27.5.1998 at about 11:30 a.m., an FIR was lodged by Kishore Chandra (informant), s/o Sohan Lal at Police Station Gadarpur, District Udham Singh Nagar stating that on 27.5.1998 at about 9:15 a.m., Kishore Chandra (informant), Karnail Singh (deeased), Preetam Singh (PW3), Manohar Lal (PW5), Ramesh Kumar, Dharmpal (PW4) and Satpal (PW2) along with some other persons were assembled at the intersection (chauraha) of Village Khempur and were waiting for the people who had to come from Gurdayal Singh’s (one of the accused) side. All of a sudden, accused Balbir Singh, s/o Gurbachan Singh, armed with a double barrel gun, accused Satnam Singh, s/o Gurbachan Singh, also armed with a double barrel gun, accused Gurdayal Singh, s/o Satnam Singh, armed with patal, accused Dalbinder Singh, s/o Satnam Singh, armed with danda, accused Gurbaj Singh, s/o Balbir Singh, armed with tamancha (a country made pistol), accused Hardip Singh, s/o Balbir Singh, armed with an air-gun and accused Gurpreet Singh, s/o Satnam Singh, armed with danda came there. After reaching near the shop of Farzand Ali, accused Satnam Singh exhorted “no one should remain alive, kill them” and they started continuous firing. One bullet shot by accused Balbir 3 Singh hit Karnail Singh (deceased). Apart from this, Dharmpal (PW4) and Satpal (PW2) also got injured with the bullet shot. Rest of the persons attacked altogether. Accused Dalbinder Singh hit Ramesh Kumar on his head with danda. Getting injured, all the four persons fell down on the ground. The bullet hit the temple of Karnail Singh (deceased), face and neck of Satpal (PW2) and Dharmpal (PW4). They fled away from the scene. These people kept on firing at the intersection in the broad day light and created an atmosphere of terror, due to which the people passing from there left their conveyance, bicycle etc. became panicky and ran away and the people working in the nearby field also ran away from there. Watching the police coming there, these people ran way from the spot waiving their weapons in the air. With the help of police, the injured persons were taken to the hospital. 5. During the investigation, the Investigating Officer took the statements of witnesses under Section 161 Cr.P.C., inspected the place of incident and prepared the Site Plan (Exhibit Ka 31), Inquest Report of the deceased (Exhibit Ka 2). Post mortem of the deceased Karnail Singh was got done. The Autopsy Report is shown as Exhibit Ka-15. Injuries of injured Ramesh Kumar, Dharmpal and Satpal were got examined by doctors. The reports of the injuries are shown as Exhibits Ka 6, Ka 7 and Ka 8. Report of Forensic Lab, Agra was annexed as Exhibits Ka 35 and Ka 36. Memo of taking simple soil and blood stained soil was prepared, which is shown as Exhibit Ka 4 and memo of recovery of taking the empty shell (Exhibit Ka 5) was prepared. During investigation, accused respondents were arrested on 27.5.1998 and two 4 cartridges of 12 bore were recovered from accused Gurbaj Singh. From accused Satnam Singh, one licensed gun and five live cartridges were recovered. In this regard, a recovery memo (Exhibit Ka 3) was prepared. Site plan of the place of recovery (Exhibit Ka 30) was prepared. For initiating proceedings against accused Gurbaj Singh under the Arms Act, approval (Exhibit Ka 24) was taken from the District Magistrate. On completion of the investigation, a charge-sheet under Sections 147, 148, 149, 307, 302 I.P.C. was submitted against all the accused. Against accused Satnam Singh, a charge sheet was submitted under Section 30 Arms Act and against accused Gurbaj Singh, a charge sheet was submitted under Section 25 Arms Act. 6. The Additional Chief Judicial Magistrate, Rudrapur, on receipt of the charge-sheets, after giving necessary copies to the accused as required under Section 207 of CrPC, committed the case to the court of Sessions Judge, Udham Singh Nagar. 7. Before further discussion, we think it just and proper to mention the ante mortem injuries found on the person of the deceased by PW9 Dr. Vimal Pant, who conducted post-mortem examination on dead body of Karnail Singh, and prepared Autopsy Report (Exhibit Ka- 15). The ante-mortem injuries, mentioned in the Autopsy Report, are reproduced below:- “1. Gun shot wound of entry measuring 2.5 cm X 2 cm X cranial cavity deep present over left side forehead 3 cm left to left eye. Margin irregular, inverted. No blackening, scorching present around the 5 wound. On further exposure of wound large haemotoma underneath the scalp around the wound with comminuted fracture of frontal bone, nasal bone and maxilla bone left. Duramater lacerated brain matter lacerated with haemotoma and inter lacerated haemorrhage. 2. Gun shot wound of exit measuring 4 cm X 2.5 cm X cranial cavity deep present over right side forehead 2 cm led to right eye ball margin irregular inverted. No sign of blackening and scorching present.” 8. The Medical Officer has opined in the autopsy report that the deceased had died of shock and haemorrhage as a result of ante mortem injuries. 9. Accused persons, namely, Balbir Singh, Satnam Singh, Gurdayal Singh, Dalbinder Singh, Gurbaj Singh, Hardip Singh and Gurpreet Singh were put to trial for the offences punishable under Sections 147, 148, 307/149 and 302/149 I.P.C., Gurbaj Singh was put to trial for the offence punishable under Section 25 Arms Act and accused Satnam Singh was also put to trial for the offence punishable under Section 30 Arms Act. 10. The learned Sessions Judge, Udham Singh Nagar has given a detailed judgment considering every aspect of the case, and acquitted all of them for the offences charged against them. 6 11. In its judgment dated 31.1.2001, learned Sessions Judge, Udham Singh Nagar has considered the evidence of prosecution witnesses (16 in number). PW1 Kishore Chandra is the informant and also an eye-witness. Accused Satnam Singh has been assigned the role of exhortation. Accused Balbir Singh fired the bullet with a gun, which hit Karnail Singh, Dharmpal and Satpal Singh. Getting injured, Karnail Singh, Satpal Singh and Dharmpal fell down on the ground. Accused Satnam Singh and Gurbaj Singh had also fired. Accused Dalbinder Singh gave a blow of danda on the head of Ramesh Kumar and he also fell down on the ground. Karnail Singh was hit on the temple, Balbir Singh and Satpal Singh were hit on the face as well as on the neck. They also fell down. The accused persons fled away from the scene. Injured Karnail Singh, Dharmpal, Satpal Singh and Ramesh Kumar were taken to the Gadarpur Hospital, where Karnail Singh was declared brought dead by the doctor. This witness PW1 Kishore Chandra has proved the FIR (Exhibit Ka-1). He has stated that Preetam Singh (PW3), Manohar Lal (PW5), Dharmpal (PW4)and Harvail Singh had seen the incident and has also proved the Inquest Report (Exhibit Ka-2). 12. PW2 Satpal has supported the prosecution story. He has also stated that Kishore Chandra was a mediator to the dispute of money. Kishore Chandra was given a slap by accused Gurdayal Singh, who is son of Satnam Singh. A Panchayat was convened on 27.5.1998 at about 9:15 a.m. The people were waiting. In the meantime, accused persons, namely, Balbir Singh, Satnam Singh, Gurbaj Singh, Gurdayal Singh, Harpreet Singh, Gurpreet Singh and Dalbinder Singh came there. Balbir Singh and 7 Satnam Singh had gun, Gurdayal Singh had patal, Gurpreet Singh and Dalbinder had danda, Harpreet had air-gun and Gurbaj had tamancha (country made pistol) in his hand. Satnam Singh exhorted and consequently all the accused fired at them. Karnail Singh was declared brought dead on way to hospital. 13. PW3 Preetam Singh has also supported the prosecution story. His evidence need not be reproduced here, as it will amount to repetition. 14. PW4 Dharmpal and PW5 Manohar Lal have also supported the prosecution version. 15. PW6 Dr. J.C. Mandal examined injured Ramesh Kumar, Dharmpal and Satpal. 16. PW7 ASI Dev Singh arrested accused Satnam Singh, Harpreet Singh, Gurdayal Singh, Dalbinder Singh, Gurpreet Singh and Gurbaj Singh and recovered one licensed gun (Exhibit 1) and five live cartridges (Exhibits 2, 3, 4, 9 and 10) from the possession of Satnam Singh, an empty shell (Exhibit 11) and an air-gun (Exhibit 6) was found from the possession of accused Hardeep Singh (Exhibit 6). Gurdayal Singh had a blood stained patal (Exhibit 5). Accused Dalbinder Singh had danda (Exhibit 7) and Gurpreet Singh had also one danda (Exhibit 8). Two 12 bore cartridges were recovered from Gurbaj Singh and five cartridges were recovered from the possession of Satnam. In this regard, a recovery memo (Exhibit Ka-3) was prepared. 8 17. PW8 Head Constable Rishipal proved chick FIR (Exhibit Ka-10) , G.D. (Exhibits Ka-9, 11, 12, 13 and 14). 18. PW9 Dr. Vimal Pant conducted the post mortem of deceased Karnail Singh on 27.5.1998 at Base Hospital, Haldwani. 19. PW10 Dr. G.S. Joshi was posted as Radiologist on 28.5.1998 at Bajpur Community Health Centre and proved report of injured Satpal (Exhibit Ka 16). He also proved X-ray reports of injured Ramesh and Dharmpal (Exhibits Ka-17 and Ka-18). 20. PW11 Rameshwar Jha S.I. has proved the Inquest Report (Exhibit Ka-2) and after sealing the body of the deceased, sent the same for post mortem examination. This witness has proved other papers (Exhibits Ka-19, Ka-20, Ka-21 and Ka-22). 21. PW12 S.I. Babu Ram has also proved recovery memo (Exhibit Ka-3) and has supported the evidence of PW7 ASI Dev Singh. 22. PW13 Constable Ghanshyam Rathi has proved chick FIR (Exhibit Ka-23) and G.D. (Exhibit Ka-12). 23. PW14 S.I. Viddya Ratna has conducted the investigation of Crime No. 165 of 1998 under Section 30 Arms Act and Crime No. 166 of 1998 under Section 25 Arms Act, obtained sanction (Exhibit Ka-24) and submitted charge-sheets (Exhibit Ka-25 and Ka-26) against accused Satnam and Gurbaj after preparing the Site Plan (Exhibit Ka-27). 9 24. PW15 S.I. Sri Nirvikar had also conducted the part investigation and had taken the statements of the witnesses. 25. PW16 S.I. Shailesh Gaur is the witness of arrest of accused persons. He is the Investigating Officer of the case, who proved the case property (Exhibit 1 to Exhibit 14). He prepared the Site Plans (Exhibits Ka 30 and Ka 31, proved the papers relating to the investigation (Exhibits Ka 31, Ka 32, Ka 33, Ka 34, Ka 35 and Ka 36) and ultimately submitted the charge-sheet (Exhibit Ka- 37) against all the accused persons. 26. Learned trial court did not believe the testimony of PW1 Kishore Kumar and PW2 Satpal so far as the fact of slapping Kishore Chandra by Gurdayal Singh is concerned. The reasons are given at Page Nos. 18 and 19 of the judgment. The learned Sessions Judge was of the view that the entire story is based on the fact, whether Gurdayal Singh slapped on the face of PW1 Kishore Chandra or not? No report of slapping is lodged by PW1 Kishore Chandra (informant). Kunwar Singh Buksa was an important witness in as much as the money belonged to him. Learned trial court was of the view that the motive of committing the crime should have been clear and proved. Learned Sessions Judge has placed reliance upon the ruling of Chhail Behari v. State of Uttar Pradesh ACC 2000, Page 288, wherein it was ruled that in the case of Section 302 read with 34 IPC, the motive propounded by prosecution behind the commission of crime is not established beyond doubt, therefore, it does not inspire confidence in its genuineness. 10 27. The rival factions were inimical to each other on account of elections and, accordingly, it was found by learned trial court that enmity is a double edged weapon. If on the one hand, the crime may be committed on account of this enmity, there is every possibility that some may be falsely implicated on account of this enmity. The eye-witnesses, who have been produced on behalf of the prosecution are closely related witnesses. There are shops and residences of other people around the place of occurrence, but no independent or disinterested witness has been produced by the prosecution. 28. It is true that the witness cannot be disbelieved merely on the ground that they are closely related to each other, but it was the responsibility of the Investigating Agency to have taken the evidence of independent witnesses available on the spot. The law is settled on the point that it requires close scrutiny of the prosecution witnesses. The law does not say that they should not be disbelieved summarily, but the law enjoins upon the courts to have closer scrutiny of such evidences. PW1 Kishore Chandra (informant) has admitted in his evidence that some 5 to 7 villagers remained on the spot. The shops of Darshan Lal and Mohan Lal are there. The place of occurrence is an intersection (chauraha) as admitted by PW1 Kishore Chandra, PW2 Satpal and PW4 Dharmpal. PW15 S.I. Shailesh Gaur has also admitted that some 6 to 7 people arrived at the scene. He visited the spot. Learned trial court has given a finding to the effect that PW1 Kishore Chandra, PW2 Satpal, PW4 Dharmpal and PW5 Manohar Lal are close relatives. PW3 11 Preetam Singh belongs to another village, which is situated at one and a half kilometre away from the place of occurrence. The population starts from 3 to 4 paces from the intersection (chauraha), where the incident took place. 29. Learned trial court has rightly said that when the witnesses are close relatives and no independent witness is produced, the law enjoins that the witnesses’ evidence should be gone into carefully. Convening of Panchayat is also doubtful because of the fact that neither the Gram Pradhan nor the member of Nyaya Panchayat, nor any respectable member of the society was invited. Learned trial court has highlighted the ignorance of PW2 Satpal regarding certain facets of Panchayat and came to the conclusion that convening of Panchayat at the intersection (chauraha) is not established. The learned trial court has also not relied upon the evidence of PW3 Preetam Singh in this regard. The discrepancies in the evidence of PW1 Kishore Chandra, PW2 Satpal, PW3 Preetam Singh, PW4 Dharmpal and PW5 Manohar Lal are also highlighted to show that there are material contradictions in the evidence of eye-witnesses and the ocular evidence is not supported by the medical evidence. The contradictions and discrepancies have been highlighted at Page Nos. 29 to 36 of the judgment. We need not reproduce the same at the cost of repetition. At page 37 of the judgment, the learned trial court has arrived at the finding that the ocular testimony is not corroborated by the medical evidence. Reliance was placed upon the ruling of Suresh Rai v. State of Bihar AIR 2000 SC 2207 Patna, wherein it was laid down that if the eye witnesses are also witnesses of inquest and they 12 disclose the cause of death in the Panchayatnama, but do not mention the names of accused in the Inquest Report, then their presence on the spot becomes doubtful. In other words, if the witnesses of inquest were also eye-witnesses, the fact that they did not state the names of the assailants, while describing the cause of death in the Inquest Report is sufficient to doubt their presence at the spot at the time of occurrence. The ruling of Suresh Rai v. State of Bihar (supra) was also referred to show that the eye-witnesses, who were scrapping grass with deceased did not receive any injury. The circumstances and the evidence on record show that presence of the eye witnesses is doubtful on the spot at the time of occurrence. In this case, PW1 Kishore Chandra, PW3 Preetam Singh and PW5 Manohar Lal were said to be present on the spot in closeness of the injured persons and when the accused persons fired at the victims, these witnesses did not sustain any injury. This shows that these witnesses were not present on the spot. 30. So far as the recovery of weapons is concerned, the learned trial court has assigned reasons for not believing the testimony of police witnesses. These reasons are assigned at Page Nos. 45 to 47 of the judgment. In a nutshell, the trial court did not believe the prosecution story and found that the prosecution has not been able to prove the case beyond reasonable doubt and therefore the accused respondents were acquitted of the charges framed against them. 31. The case relates to a quarrel as regard money with any other person, not with Karnail Singh (deceased), in respect of which Panchayat was convened. This fact is 13 not corroborated by any evidence. The fact that the quarrel was to be sorted out by Panchayat goes totally uncorroborated. Whatever anybody says cannot be treated as gospel truth. 32. PW6 Dr. J.C. Mandal, who was posted at Primary Health Centre, Gadarpur, District Udham Singh Nagar has stated in his examination in chief that on 27.5.1998 at about 9:45 a.m., he examined injured Ramesh Kumar, who was brought to the hospital by Sri Preetam Singh s/o Lal Singh. He further stated that during examination the following injuries were found on the body of injured Ramesh Kumar: “Injury No. 1 Sharp injury on front of head starting from heir margin front to backward measuring 7 X 1/2 cm full skin deep up to skull fresh bleeding present with pressure. Injury No. 2: Lacerated wound on root of nose 1 X 1/4 cm fresh bleeding.” 33. After examining injured Ramesh Kumar, PW6 Dr. J.C. Mandal opined that injury no. 1 could be possible by the blow of some sharp edged weapon. He further opined that injury no. 2 could be caused by the blow of some hard object. He further stated that injury no. 1 could be possible by patal and injry no. 2 could be caused by the blow of lathi/danda. 34. PW6 Dr. J.C. Mandal on the same day examined injured Dharampal, who was brought to the hospital by Preetam Singh. While examining the injured, Dr. Mandal found the following injuries: “Injury No. 1: B/B subconjuntival haemorrhage slight secretion is seen. 14 Injury No. 2: Multiple small lacerated wound left maxillary region forehead left 11 X 5 cm area covered. Whole area is blackish. Injury No. 3: Multiple small lacerated wound right forehead complete nose area, complete chin, lips, throat and upper area of chest measuring 30 X 17 cm. Whole area is blackish. Injury No. 4: Sharp wound on left hand index finger. On basal phalanges. It fresh bleeding. Dorsum area. Injury No. 5: Sharp wound on left hand’s middle finger on basal area and dorsum area. Injury No. 6: Contusion on left lateral of arm. Spindle in shape measuring 11 X 1 cm up to downwards. Slight oblique. 20 cm below from tip of the shoulder joint. Injury No. 7: Abrasion on right shoulder joint 4 X 1 cm.” 35. PW6 Dr. Mandal opined that injury no. 1 can be caused by the blow of some hard object and injuries no. 2 and 3 can be caused by some firearm. He further opined that injuries no. 4 and 5 can be caused by the blow of some sharp edged object and injuries no. 6 and 7 can be caused by the blow of some blunt and hard object. Injuries no. 4, 5, 6 and 7 were said to be simple in nature. 36. On the same day, PW6 Dr. Mandal examined injured Satpal, s/o Sri Sohan Lal, who was brought to the hospital by Sri Preetam Singh. While examining injured Satpal, he found the following injuries: 15 “Injury No. 1: Sharp injury measuring 4 ½ cm X ½ X 1 ½ cm long X width X deep. Fresh bleeding present. Cloth soiled with blood. On left chick. Injury No. 2: Abrasion and swelling on left shoulder joint. 37. After examining injured Satpal, PW6 Dr. Mandal opined that injury no. 1 can be caused by the blow of some sharp edged object and injury no. 2 can be caused by the blow of some hard object. Both the injuries were said to be simple in nature. 38. PW6 Dr. J.C. Mandal further opined that injury no. 1 on the body of Ramesh Kumar could have come by falling on the road and injury no. 2 could have come by falling on the gravel. 39. Regarding the injuries of Dharampal, PW6 stated that he cannot say anything as to by which object injuries no. 2 and 3 were caused to Sri Dharampal. He opined that injuries no. 4 and 5 could have been received by falling on some sharp edged stone lying beside the road and injury no. 6 could have come by falling on the road. He further opined that injury no. 7 can be caused if somebody slips on the road. 40. Regarding injured Satpal, PW6 Dr. Mandal stated that injury no. 1 can be caused by falling on some sharp edged stone and injury no. 2 can be caused by abrasion on the road. 41. PW9 Dr. Vimal Pant, Medical Officer, Base Hospital, Haldwani, District Nainital stated in his examination in chief that on 27.5.1998 at about 5:00 P.M., Constable 16 Shamim Abbas and Constable Krishna Pal Singh, Police Station Gadarpur brought a sealed dead body, to whom they identified as Sri Karnail Singh. He further stated that he conducted post mortem examination on the dead body of Sri Karnail Singh. At the time of post mortem, he found the ante mortem injuries on the dead body of deceased Karnail Singh, a reference of which has already been made in at Paragraph 7 of this judgment. 42. After examining the dead body, PW9 Dr. Vimal Pant opined that the cause of death of Sri Karnail Singh was shock and haemorrage as a result of ante mortem injuries. He further opined that the aforesaid injuries could have been caused by the shot of a gun. He further clarified that injuries no. 1 and 2, could not have been sustained by the shot of a 12 bore gun, but these injuries could have been caused by the shot of a 315 bore gun. 43. PW10 Dr. G.S. Joshi, who was posted as Radiologist in the Community Health Centre at Bajpur, District Udham Singh Nagar has stated in his examination in chief that on 28.5.1998, he examined injured Satpal s/o Sohanlal. He stated that neither there was any injury on the skull of Satpal nor there was any mark of pellet.