IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Government Appeal No. 53 of 2001 (Old No. 1978 of 1998) State of U.P. (now State of Uttarakhand) …..…Appellant Versus 1. Har Gyan Singh 2. Trilochan @ Lochi (deceased) 3. Pappu, S/o Budhan Singh ……….Respondents Shri S.S. Adhikari, A.G.A., with Shri B.S. Parihar ,Brief Holder, present for the State. Shri Gopal Krishan Verma, Advocate, Amicus Curiae, present for the respondents. Hon'ble Prafulla C. Pant, J. Hon'ble Nirmal Yadav, J. Oral : Hon'ble Prafulla C. Pant, J. This appeal, preferred under section 378 (3) of Code of Criminal Procedure, 1973 (for short Cr.P.C)is directed against judgment and order dated 26.02.1998, passed by Additional Sessions Judge (E.C. Act), Dehradun, in Sessions Trial No. 79 of 1994, whereby said court has acquitted the -2- respondents from the charge of offences punishable under section 302, 394 of Indian Penal Code, 1860 (for short IPC). Accused/respondent Hargyan was convicted under section 411 IPC but he was sentenced to imprisonment for a period already undergone during trial. 2. Heard learned counsel for the State, and learned Amicus Curiae for the respondents, and perused the lower court record. 3. Prosecution story in brief is that Chandmal Bhutda (first deceased) and his wife Smt. Surajmal Bhutda (second deceased) used to live in house no. 54D, Rajpur Road, Dehradun. In the servant's quarters, one K.Mani, Tarachand, Shivkant and P.W.1 R. Ganeshan used to live as their tenants. Accused/respondents Hargyan, and one Khoob Singh, in March 1994, were engaged by the aforesaid couple for white-washing etc., in the house. The prosecution case is that P.W.1 R. Ganeshan disclosed that accused Hargyan and Khoob Singh had some dispute over the payment of their wages. It is alleged that on 20.03.1994, at about 5:30 p.m.,accused Hargyan and Khoob -3- Singh demanded their arrears of dues from Chandmal Bhutda. Next day on 21.03.1994, P.W.1 R. Ganeshan saw accused Hargyan, and Khoob Singh taking television set etc, from the house of the Chandmal Bhutda. On third day i.e, on 22.03.1994, P.W. 1 R. Ganeshan noticed that there is no activity inside the house of the deceased and he suspected foul play and passed on the information to P.W.4 Ashok Gupta who was President of Residents Welfare Society of the colony. He (Ashok Gupta) gave report (Ex. A12) at the Police Station Dalanwala. On this, the police reached at the spot and saw that the dead body of Chandmal Bhutda was lying on the first floor, and that of his wife Surajmal was lying in the bath room. It was also found that the goods inside the house were scattered. On the basis of aforesaid report police registered crime no. 68/94, under Sections 302/394/411/201, IPC at Police Station Dalanwala, Dehradun, against the unknown persons. P.W.2 Sub-Inspector Anil Kumar Sharma started investigation. During investigation, he arrested accused/respondents Hargyan, Trilochan @ lochi (since deceased), and Pappu, S/o Budhan Singh. Khoob Singh was also arrested. Different -4- items of looted property were said to have been recovered from the four accused. Necessary memorandums were prepared. All the four accused were produced on 23.03.1994, before P.W. 10 Manisha Panwar, the then Sub-Divisional Magistrate, Dehradun, who recorded the confessional statement of the accused under section 164 Cr.P.C.. The further investigation was taken up by P.W. 7 Sub-Inspector Mohd. Wasim Siddiqui. Since, meanwhile a knife is said to have been recovered from the accused Khoob Singh in respect of which a separate crime was registered. After investigation, charge sheet (Ex. A15) was filed by the Investigating Officer against the accused/respondents Hargyan, Trilochan @ Lochi, and Pappu, alongwith Khoob Singh. Since Khoob Singh absconded during trial after his release on bail, his case appears to have been separated. Learned Additional Sessions Judge, to whom the case was committed, and sent for trial on 03.05.1995, after hearing the parties framed charge of offence punishable under section 302 read with section 34, and section 394 read with section 34 against accrued/respondents Hargyan, and Khoob Singh. All of them pleaded not guilty and claimed -5- to be tried. A separate charges in respect of offence punishable under section 411 IPC were framed against accused/respondents Hargyan, Pappu, Trilochan @ Lochi, and Khoob Singh. Thereafter prosecution got examined P.W.1 R. Ganeshan, P.W.2 Sub-Inspector Anil Kumar Sharma, P.W.3 Rajeev Sharma, P.W.4 Ashok Gupta (informant),P.W.5 Sub-Inspector Ranjeet Singh, P.W.6 Dr. A.P. Mamgai, P.W.7 Sub-Inspector Mohd. Wasim Siddiqui, P.W.8 Mangal Singh, P.W.9 Head Constable Sheel Gang, and P.W.10 Smt. Manish Panwar (Sub-Divisional Magistrate). Oral and documentary evidence was put to the accused under section 313 Cr.P.C., in reply to which they alleged the same to be false. It is also pleaded by them that the alleged confessional statement was made by them at the behest of the police, and retracted from it. Accused Hargyan pleaded that there was no dispute of payment of his wages as the same had already been cleared on 08.03.1994. The trial court after hearing the parties, found that none of the charges are proved against the accused/respondents except of charge of 411 IPC against accused Hargyan in respect of which he was sentenced to period already undergone by -6- him during trial (four years). Aggrieved by said judgment and order dated 26.02.1998, passed by Additional Sessions Judge (E.C. Act), Dehradun, in Sessions Trial No. 79 of 1994, this appeal was filed by the State before Allahabad High Court on 12.08.1998. The appeal is received by this Court under section 35 of U.P., Reorganization Act, 2000 (Central Act 2000) for its disposal. The leave was granted and notices were sent to the respondents. Respondent Trilochan @ Lochi is reported to have died as such appeal as against him stands abated. In respect of other accused Shri G.K. Verma, Advocate, was appointed Amicus Curiae to assist the court. 4. From the first information report it is clear that none of the respondents are named in the report. It is a case of circumstantial evidence. Prosecution has adduced the evidence showing following three circumstances against accused/respondents Hargyan and Pappu:- (i) Hargyan had a quarrel on 20.03.1994 at abut 5:30 P.M., relating to his dues for his work done by him in the house of the deceased. -7- (ii) Recovery of the looted articles said to have been made from the house of the accused Hargyan, and Pappu during investigation. (iii) The confessional statement made to the P.W.10 Manish Panwar Sub-Divisional Magistrate. 5. As to the circumstance no. (i) i.e., regarding dispute of Hargyan with the deceased, it has come on the record that as per the diary of the deceased, dues of Hargyan had already been cleared by deceased on 08.03.1994. There is no occasion on the part of the Hargyan to have come to quarrel on the fateful day i.e., 20.03.1994, particulary when he had signed in the diary of the deceased as to clearance of his dues by him. As far as the third circumstance i.e., confessional statements recorded by P.W. 10 Manisha Panwar, the then Sub-Divisional Magistrate, is concerned,it appears that the said statements are not voluntary in nature. She herself has admitted that police remained through out in the court when she recorded confessional statements. Trial court has taken note of the fact that when the statement of -8- the accused were recorded by the Magistrate practically they were in police custody. The judicial remand had been taken by the police only on that day and they were yet to go to jail. It is pleaded on behalf of the defence that the accused were not given sufficient time to think over before making alleged confessional statements. Since, the confessional statements appear to have been taken when the accused were handcuffed and in the police custody, it cannot be said that their statement recorded in the presence of police officials was a voluntary statement. In our opinion trial court has rightly not believed the alleged voluntary statement made by the accused. 6. Even otherwise, the manner in which the crime has been committed, as suggested by prosecution, does not appear to be natural. On 20.03.1994, the murders are said to have been committed by Hargyan, and Khoob Singh. The date and time of death of the deceased assessed in the post mortem report is 20.03.1994, at about 6:00 P.M. It is strange and hard to believe that after committing murders, on the next day Hargyan would come again to the house of the deceased -9- and take away television set in the day light. P.W. 1 R. Ganeshan,who is the witness of alleged incident of 20.03.1994, relating to quarrel, that of the next day i.e. 21.03.1994, relating taking of the television set, did not think it proper to report about the incident to anyone. On the third day i.e., 22.03.1994, he informs P.W.4 Ashok Gupta that there is no activity in the house of Chandamal Bhutda . The FIR by Ashok Gupta does not disclose that he was told about any quarrel with Hargyan or that he (Hargyan) was seen taking the television set. Had he informed so, Ashok Gupta in the FIR itself, named Hargyan. The statement by P.W.1, R.Ganeshan appears to be wholly unreliable, and doubtful. Nor the chain of circumstances is complete in this case. 7. Having heard submissions of learned counsel for the State, and learned Amicus Curiae for the respondents, and after going through the lower court record we do not find it to be a fit case to interfere with the impugned judgment and order passed by the trial court. Therefore the -10- appeal is dismissed. Lower court record be sent back. (Nirmal Yadav, J) (Prafulla C. Pant, J) Dt. 07.09.2010 Parul