IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Government Appeal No. 1260 of 2001 (Old No. 353 of 1993) The State ...…………. Appellant Versus 1. Harbir S/o Sri Bhukan Ram R/o Village Faridpur, P.O. Rustampur, Baroli, P.S. Baniya Ther, Distt. Moradabad. 2. Mahesh S/o Shiv Charan R/o Village Khajra, P.S. Dhanari, Distt. Badaun. ...…………. Accused / Respondents Mr. H.C. Pujari, Addl. Government Advocate for the appellant State. Mr. Lokendra Dobhal, learned counsel for the respondents. Coram : Hon’ble Prafulla C. Pant, J. Hon’ble Dharam Veer, J. Hon. Prafulla C. Pant, J. (Oral) This appeal, preferred under Section 378(3) of the Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), is directed against the judgment and order dated 20.11.1992, passed in Sessions trial No. 46 of 1990, by learned Sessions Judge, Dehradun, whereby the accused (present respondents) Harbir and Mahesh have been acquitted of the charge of offences punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (hereinafter referred as I.P.C.). 2) Heard learned counsel for the parties and perused the entire evidence on record. 3) The prosecution story in brief is that Ram Prasad (deceased) used to live in Labour Colony of the Indian Drugs and Pharmaceuticals Limited, Rishikesh (hereinafter referred as IDPL). On 17.02.1989, at about 02:30 P.M., Ram Prasad was in his house, when accused / respondents Harbir, Mahesh and Ramesh (since deceased) came there, and objected to the fencing made by the deceased. They started uprooting the fencing. Thereafter, a quarrel started between Ram Prasad and the accused. Prosecution case is that Harbir was armed with BALLAM, Ramesh was armed with SABBAL and Mahesh was armed with sword. It is alleged by the prosecution that the three with common intention caused injuries on the person of Ram Prasad by giving blows with the arms possessed by them and injured him. The incident is said to have been witnessed by P.W. 1 Prabhu and Vir Pal (P.W. 2), who were working as labourers in the neighbourhood, and also by P.W 3 Sheela, widow of the deceased. Injured Ram Prasad was taken to the police outpost, IDPL, P.S. Rishikesh, and Prabhu lodged the first information report (Ext. A –1). On the basis of said first information report, check report (Ext. A –9) was prepared at 04:20 P.M., and a case is registered under Section 307, 504, 506 of I.P.C. against the three accused namely, Harbir, Mahesh (both present respondents) and Ramesh (since deceased). The injured Ram Prasad was referred from Government Hospital, Rishikesh to Doon Hospital, Dehradun, for further treatment as his condition was precarious. On 17.02.1989 itself, at about 09:20 P.M. a dying declaration (Ext. A –7) was got recorded by P.W. 7 Chandra Singh Negi, Additional Tehsildar, Dehradun. The dying declaration was recorded in the presence of Dr. S.K. Nautiyal (P.W. 9). On 18.02.1989, injured Ram Prasad succumbed to his injuries. Before that, injuries of Ram Prasad were got examined by Dr. S.N. Singh Chandel (P.W. 4). After the death of Ram Prasad, his dead body was taken into possession by the police and inquest report (Ext. A –23) was got prepared along with police form No. 13 (Ext. A –24), sketch of the dead body (Ext. A –25) and other necessary papers. The postmortem examination was conducted by Dr. Surat Singh Aswal (P.W. 6) on 19.02.1989, at 01:15 P.M., who prepared the autopsy report (Ext. A –5). In the autopsy report, Dr. Surat Singh Aswal (P.W. 6) opined that the cause of death was shock and haemorrhage, as a result of ante mortem injuries. After completion of the investigation, the Investigating Officer Rajendra Singh Dhama (P.W. 10) submitted charge sheet (Ext. A –17) against all the three accused, including present two respondents. 4) The Magistrate, on receipt of the charge sheet, appears to have committed the case to the court of sessions, after giving necessary copies to the accused, for their trial in respect of offences punishable under Section 302 / 34 of I.P.C. Learned Sessions Judge, after hearing the parties, on 10.05.1990, framed charge of offence punishable under Section 302 read with Section 34 of the I.P.C. against the accused Ramesh and Mahesh, while a separate charge in respect of offence punishable under Section 302 of I.P.C. was framed against the accused Harbir. All the three accused pleaded not guilty to the charge and claimed to be tried. On this, prosecution got examined P.W. 1 Prabhu (complainant); P.W. 2 Om Vir Singh (declared hostile); P.W. 3 Sheela (widow of the deceased); P.W. 4 Dr. S.N. Singh Chandel (who examined the injuries on the person of Ram Prasad in the Govt. Hospital, Rishikesh); P.W. 5 Shiv Mohan (witness of recovery of Ballam from the accused Harbir); P.W. 6 Dr. Surat Singh Aswal (who conducted the postmortem examination on the dead body of Ram Prasad); P.W. 7 Dr. A. Nagaich (who recorded injuries at the time Ram Prasad was brought to Doon Hospital, Dehradun); P.W. 8 Chandra Singh Negi, Addl. Tehsildar, Dehradun (who recorded the dying declaration); P.W. 9 Dr. S.K. Nautiyal (who certified that Ram Prasad was in a fit condition to make the statement) and P.W. 10 Rajendra Singh Dhama (Investigating Officer). The oral and documentary evidence was put to the two accused, namely Harbir and Mahesh, under Section 313 of Cr.P.C., in reply to which they alleged the same to be false and state that they were falsely implicated in the crime due to enmity. However, no evidence was adduced in defence. The trial court, after hearing the parties found that the charge against the accused / respondents are not proved beyond reasonable doubt, and they were acquitted of the charge of offence framed against them. Aggrieved by said judgment and order dated 20.11.1992, passed by learned Sessions Judge, Dehradun, in Sessions Trial No. 46 of 1990, this appeal was filed before the Allahabad High Court on 27.02.1993. The said Court granted leave to appeal on 04.07.1996, and admitted the appeal. The appeal is received by transfer to this Court under Section 35 of the U.P. Re-organization Act, 2000, for its disposal. 5) Before further discussion, we think it just and proper to mention here the ante mortem injuries found on the person of deceased Ram Prasad, recorded in the autopsy report (Ext. A –5) by Dr. Surat Singh Aswal (P.W. 6). The same are being reproduced hereunder:- 1. “Stitched wound on upper abdomen on left side 2.5 cm above the umbilicus measuring 13 cm in length. 7 stitches applied. 2. Penetrating wound on right side of abdomen with a corrugated rubber drain in it measuring 3 cm X 1 cm depth is upto abdominal cavity. 3. Penetrating wound on back on right side, 9 cm away from first lumbar vertebra, measuring 2.5 cm X 1.5 Cm X cavity deep. 4. Cut open wound on medial aspect of right leg. ” The Medical Officer, who conducted the autopsy has opined that the deceased has died due to shock and haemorrhage on account of ante mortem injuries. Before that, Dr. A. Nagaich (P.W. 7) had recorded the sole injury at the time when Ram Prasad (deceased) was brought in an injured condition at 07:00 P.M. in Doon Hospital, Dehradun. The injury report (Ext. A –6) prepared by said Medical Officer shows only following injury, which reads as under: “Incised wound 4 cm X 2 cm X cavity deep on epi gastric region on left side 10 cm below left nipple and 2 cm away from the midline.” The ante mortem injuries except the corresponding injury to the one recorded in Ext. A –6, appear to have been found on account of surgery performed in the Doon Hospital. The ante mortem injuries found on the person of the deceased and the above mentioned injury established on record that Ram Prasad died homicidal death. Now, this Court has to see whether the trial court has committed error of law in coming to the conclusion that the prosecution has failed to prove that the accused / respondents have committed murder of Ram Prasad with common intention. 6) The first point which is discussed by the trial court relates to the time of the incident with regard to which there is contradictory evidence on record. The first information report (Ext. A –1) shows that the incident had taken place at 02:30 P.M. However, the dying declaration (Ext. A –7) shows that the incident had taken place at 04:00 P.M. The trial court had taken the view that it is a material contradiction which should have been explained by the prosecution and in its absence it creates reasonable doubt as to the manner of commission of crime, suggested by the prosecution. In the dying declaration allegation is only against Harbir and it is further said that Mahesh and Ramesh were there with him. 7) It is pertinent to mention here that P.W. 1 Prabhu (complainant / eyewitness) is not the resident of the place where the incident had taken place. He is resident of Village Khajra, District Badaun, and states that he was at the place of incident as he was working as labourer with contractor Ram Dayal on the neighbourhood of the deceased. As such, his presence was felt doubtful by the trial court. P.W. 2 Om Vir Singh, the another eyewitness, produced by prosecution did not support it and he was got declared hostile. The only other eyewitness, who supported the prosecution story, is P.W. 3 Sheela. Referring to the contradiction in the statement of P.W. 3 Sheela and P.W. 1 Prabhu, the trial court found the evidence adduced by the prosecution as shaky, and sufficient to create reasonable doubt as to the commission of crime by the accused / respondents. 8) Not only P.W. 1 Prabhu, belongs to a different district, but also the accused Harbir and Mahesh belong to different district i.e. Moradabad. They happen to be relatives of Ramesh (since deceased) with whom the deceased had enmity. In the statement of accused Mahesh, recorded under Section 313 of Cr.P.C., it has come that he had come a day before in the house of his brother-in-law (Ramesh). He further states that he had gone to police outpost, after the arrest of Ramesh, with his sister. He has alleged that he was taken into custody by the police there and was implicated in the crime. Accused Harbir at the end of his statement, recorded under Section 313 of Cr.P.C., says that he was taken to police station along with Om Vir (P.W. 2) by the police and police gave him a blow on his head with BALLAM, brought by Om Vir and implicated in the crime. Said injury on the person of accused is proved by P.W. 4 Dr. S.N. Singh Chandel. 9) As to the testimony of P.W. 3 Sheela, it is found that she states that on exhortation of Ramesh, Mahesh gave blow with sword on her husband (Ram Prasad), but it did not hit. Then, accused Harbir pierced the BALLAM through the abdomen of the deceased (Ram Prasad). The testimony of this witness creates doubt as to its truthfulness, as injury report (Ext. A –6) shows that there was only one incised wound, measuring 4 cm X 2 cm X cavity deep, at the time Ram Prasad was brought to the Doon Hospital on 17.02.1989, which was recorded by Dr. A. Nagaich (P.W. 7). With BALLAM there could not have been an incised wound found on the person of the deceased, as such it is doubtful whether this witness P.W. 3 Sheela, actually witnessed the incident, or not? 10) For the reasons as discussed above, we concur with the view taken by the trial court that the prosecution has failed to prove the charge beyond reasonable doubt that the accused / respondents, with common intention, committed murder of Ram Prasad. 11) Therefore, the appeal is liable to be dismissed. The same is dismissed. (Dharam Veer, J.) (Prafulla C. Pant, J.) Dt. June 04, 2008. H. Negi