IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 873 of 2001 (Old No. 1902 of 1993) 1. Kamlu S/o Shri Govind Singh R/o Village Anethi, Lagga Rautali, Patti Jakhanidhar, Patwari Circle Khandogi, Tehsil Pratapnagar, District Tehri Garhwal. 2. Vijay Ram alias Birju S/o Shri Rameshwar, R/o Village Ratoli, Patti Jakhanidhar, Patwari Circle Khandogi, Tehsil Jakhanidhar, Pratapnagar, District Tehri Garhwal. …………………..Appellants. Versus State ………..……..Respondent. Sri Lokendra Dobhal, Advocate for the appellants. Sri H.C. Pujari, Additional Government Advocate for the State. Hon’ble Prafulla C. Pant, J. Hon’ble Dharam Veer, J. (Oral: Hon’ble Prafulla C. Pant, J.) This appeal, preferred under Section 374 of Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), is directed against the judgment and order dated 26/27.10.1993, passed by learned Sessions Judge, Tehri Garhwal, in Sessions Trial No. 9 of 1991, whereby the appellants, namely, Kamlu and Vijai Ram alias Birju are convicted under Section 302 read with 2 Section 34 of Indian Penal Code, 1860 (hereinafter referred as I.P.C.) and each one of the convicts is sentenced to imprisonment for life. (2) Heard learned counsel for the parties and perused the lower court’s record. (3) Prosecution story in brief is that on 28.02.1990 Narain Singh (deceased), resident of village Ratauli, Patti Jakhnidhar, District Tehri Garhwal was brought in injured condition in the Joint Hospital, Tehri, where he was admitted in unconscious state. Dr. Narendra Jha (P.W.5) recorded the injuries found on the person of Narain Singh on 2nd March 1990 at about 12.30 p.m.. Thereafter, while in the Hospital, the patient (Narain Singh) died on 03.03.1990 at 15.25 hours, whereafter, his dead body was sent to the mortuary. An inquest report (Ext.A-8) and other necessary papers, sketch of the dead body and Police Form No. 13 (Ext.A-9 and Ext.A-10) were prepared. The postmortem examination on the dead body of Narain Singh was conducted on 04.03.1990 at 11.30 a.m. by a surgeon who prepared autopsy report (Ext.A-12). Thereafter, an application (Ext.A-4) was moved before the Sub Divisional Magistrate, Tehri, by Shiv Singh, son of the deceased Narain Singh on 08.03.1990, requesting him to get the matter enquired into as his father is said to have been murdered by accused / appellants Kamlu and Vijai Ram alias Birju. On said application, moved before the Sub Divisional Magistrate, he directed the Patwari concerned to register the case and to investigate the crime. (In interior hills of Uttarakhand revenue officials are 3 given police powers under U.P. Government Notification No. 494/VIII-418-16, dated 07.03.1916). On this, Balkrishna Badoli, a revenue official having police powers, prepared Check Report (Ext. A-2) and on the basis of the First Information Report registered the case against the aforesaid two accused / appellants, relating to offence punishable under Section 304 I.P.C. and thereafter further investigation was completed by Pratap Singh Bhandari (C.W.1), who submitted the charge sheet (Ext.A-11) against the two accused / appellants, namely, Kamlu and Vijai Ram alias Birju. (4) The Magistrate, on receipt of the charge sheet, after giving necessary copies to the accused as required under Section 207 of Cr.P.C., appears to have committed the case to the court of Sessions for their trial. The then learned Sessions Judge, Tehri, on 11.03.1991, after hearing the parties framed charge of offence punishable under Section 302 read with Section 34 I.P.C. against the two accused Kamlu and Vijay Ram alias Birju, who pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W.1 Kishori, P.W.2 Bulak Singh, P.W.3 Karan Singh, P.W.4 Govind Ram, P.W.5 Dr. Narendra Jha, P.W.6 Bachan Singh and P.W.7 Mor Singh Panwar, Patwari. One more witness Pratap Singh Bhandari (C.W.1) Supervisory Kanoongo was also got examined on the directions of the Court. The oral and documentary evidence was put to both the accused who alleged that the evidence adduced against them is false and they have been falsely implicated due to enmity. The trial court after hearing the parties found the two accused guilty of the charge of offence 4 punishable under Section 302 read with Section 34 I.P.C. and convicted them on 26.10.1993. After hearing on sentence, each of the two accused was sentenced to imprisonment for life on 27.10.1993. Aggrieved by said judgment and order dated 26th/27th October 1993, this appeal was filed by the two convicts before Allahabad High Court on 03.11.1993, where it was admitted on 04.11.1993. The appeal is received by this Court under Section 35 of U.P. Reorganisation Act, 2000 (Central Act No. 29 of 2000), for its disposal. (5) Before further discussions, we think it just and proper to mention the ante mortem injuries found on the dead body of the deceased on 04.03.1990 at 11.30 a.m., which are recorded in the autopsy report (Ext.A-12). Genuineness of said document is admitted by the accused. The ante mortem injuries in aforesaid report are being reproduced below:- (i) Lacerated wound 4cm X 1cm X .5cm on right side head frontal area. (ii) Incised wound on right side of face over right maxilla 6cm X .5cm X .5cm. (iii) Contusion 3cm X 4cm over tip of nose. (iv) Abrasion on left hip in an area of 15cm X 20cm. (v) Multiple abrasions on right hip in an area of 15cm X 15cm. 5 (vi) Multiple abrasions on the ventral aspect of right elbow. (vii) Multiple abrasions over abdomen and chest, scattered all over. The Medical Officer opined in his autopsy report that the deceased had died of coma due to head injury. The ante mortem injuries correspond to the injury report (Ext.A-1), prepared by P.W.5 Dr. Narendra Jha, who recorded the same when Narain Singh (deceased) was in Joint Hospital, Tehri. The injury report (Ext.A-1) was prepared on 02.03.1990 at 12.30 p.m.. From the injuries mentioned in injury report (Ext.A-1) and autopsy report (Ext.A-12), it is clear that either the death of Narain Singh has occurred due to some accident or the death is homicidal. (6) Though the trial court has convicted the two accused / appellants, Kamlu and Vijai Ram alias Birju, but on reassessment of the evidence recorded by the trial court, we found following points which create reasonable doubt in the truthfulness of the prosecution story:- (I) The First Information Report is lodged after nine days of the occurrence, without sufficient explanation why others (except son of deceased) could not lodge the same earlier. 6 (II) Shiv Singh (son of Narain Singh) who gave application (Ext.A-4) to the Sub Divisional Magistrate, Tehri has not turned up and not entered in the witness box to state as to why the First Information Report is lodged after a delay of nine days. (III) Chain of circumstances, alleged against the accused is not complete to prove the charge against them. (IV) The statements of the witnesses were not found trustworthy for reasons discussed below. (7) From the contents of First Information Report it does reflect that complainant received the information by telegram in Kaithal (Haryana) and then came to his house and thereafter gave his report. The reason for naming the accused / appellants in said application as accused, it is mentioned by the complainant (Shiv Singh) that villagers told him that Narain Singh was murdered by Kamlu and Vijai Ram alias Birju. Strangely, no-one in the village lodged the First Information Report of the incident for nine days. (8) P.W.3 Karan Singh, cousin of the deceased and P.W.4 Govind Ram state that the deceased before his death told them that injuries were caused in his person by accused / appellants 7 Kamlu and Vijay Ram alias Birju, but they could not explain that why they did not lodge the First Information Report about the incident. The alleged Dying Declaration made to these witnesses appears to be doubtful otherwise also for the reason that it has come in their evidence that injured Narain Singh was in unconscious state. As to the state of mind of injured Narain Singh, it is clear from the injury report (Ext.A-1) that the injured was in an unconscious state of mind. P.W.5 Dr. Narendra Jha, who recorded the injuries on the person of Narain Singh in Joint Hospital, Tehri, in his cross-examination has stated that the injuries found on the person of Narain Singh could have been caused by fall. P.W.1 Kishori and P.W.2 Bulak Singh, who have stated in their examination-in-chief that they saw Kamlu, Birju and Narain Singh going together before Narain Singh got injured, but these two witnesses have not explained as to why they kept quiet for nine days and did not disclose to the Patwari of the area after they came to know of the incident. Apart from this, prosecution has not shown any motive due to which the accused / appellants Kamlu and Vijai Ram alias Birju could have caused injuries. Though in every case motive is not required to be seen for commission of crime but in a case of circumstantial evidence particularly a case of the nature as the present one, it is a relevant factor to be seen. (9) Having heard learned counsel for the parties and after going through the lower court record, we are of the view that the chain of circumstances brought on record by the prosecution is not complete nor on its basis can it be said that the accused / appellants Kamlu and Vijai Ram alias Birju have 8 common intention to commit murder of Narain Singh. It cannot be ruled out that the deceased might have fallen in a hilly terrain and got unconscious whereafter he was taken to the Hospital where he died after a couple of days. (10) For the reasons as discussed above, we are of the view that the trial court has erred in law in holding the accused / appellants Kamlu and Vijai Ram alias Birju guilty of charge of offence punishable under Section 302 read with Section 34 I.P.C. Since, the prosecution has failed to prove the charge framed against accused / appellants beyond the reasonable doubt, we are of the opinion that two accused / appellants cannot be held guilty of the offence punishable under Section 302/34 I.P.C. Accordingly the appeal is allowed. The impugned judgment and order dated 26th/27th October 1993, passed by learned Sessions Judge, Tehri Garhwal, in Sessions Trial No. 9 of 1991 is set aside. The conviction and sentence recorded by the trial court against accused / appellants is also set aside. The two accused / appellants Kamlu and Vijai Ram alias Birju are acquitted of the charge framed against them. They are on bail. They need not to surrender. (Dharam Veer, J.) (Prafulla C. Pant, J.) 28.07.2008 NS 9