IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 174 of 2006 Sandeep S/o Sushil, R/o Village Ajitpur, Police Station Kankhal, District Haridwar ……………Appellant. (In jail) Versus State of Uttarakhand ..…………Respondent. Sri Vivek Shukla, Advocate, with Sri Bhuwanesh Joshi, Advocate, present for the appellant. Sri Amit Bhatt, Additional Government Advocate, present for the State. Hon’ble Prafulla C. Pant, J. Hon’ble B.S. Verma, 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 15.07.2006, passed by learned Additional Sessions Judge / II Fast Track Court, Haridwar, in Sessions Trial No. 404 of 2000, whereby accused / appellant Sandeep has been convicted under Sections 302 and 377 of Indian Penal Code, 1860 (hereinafter referred as I.P.C.). The convict (appellant) has been sentenced by said 2 court to imprisonment for life and also directed to pay fine of Rs.10,000/-, under Section 302 I.P.C., and rigorous imprisonment for a period of ten years and further directed to pay fine of Rs.10,000/-, under Section 377 I.P.C.. (2) Heard learned counsel for the parties and perused the record of the case. (3) Prosecution story in brief is that P.W.1 Narendra Singh, father of the deceased, lodged a First Information Report (Ext.A-1) with Police Station Kankhal, District Haridwar, on 27.07.2000, at about 9.20 P.M., informing that on said date at about 6.30 P.M., when in his house, was told by the villagers that dead body of a child is lying near Himalayan Stone Crusher in the field of Babu Ram in village Ajitpur. On this, he along with villagers proceeded towards the spot and identified that dead body was that of his son Shekhar, aged 10 years. There were marks of injury on the head and face of the deceased. The dead body was lying without clothes down the waist. In the First Information Report, it is further stated by the complainant P.W.1 Narendra Singh that he took the child with the help of villagers to Shanti Hospital, where the Doctors declared him brought dead. On this, he took back the dead body of his son to village and, thereafter, lodged the First Information Report (Ext.A-1). The report was registered as Crime No. 91 of 2000, relating to offence punishable under 3 Section 302 I.P.C. against unknown persons. P.W.10 Sub Inspector Jodha Singh Adhikari, investigated the crime. P.W.11 Sub Inspector Rajendra Kumar, went to the spot in the same night and took the dead body of the deceased in his possession. He prepared Inquest Report (Ext.A-8). He also got prepared Sketch of the Dead Body (Ext.A-9), Police Form No. 13 (Ext.A-10), and letter to Medical Officer In-charge (Ext.A-12) for postmortem examination of the deceased. The dead body was sent for postmortem examination. P.W.8 Dr. Suresh Kumar Chauhan, conducted postmortem examination on the dead body of the deceased boy on 28.07.2000, and recorded ante mortem injuries found on the body and prepared Autopsy Report (Ext.A-2). He opined in his report that cause of death of the deceased was shock and haemorrhage due to ante mortem injuries. Apart from head injury, the injuries on the buttock and penis were also recorded. On interrogation of the witnesses, the Investigating Officer found that P.W.2 Som had seen the accused / appellant Sandeep with the deceased at about 4.00-4.30 P.M. on the day of incident, P.W.3 Mange Ram had seen accused / appellant in a nervous state at about 5.30 P.M. (i.e. after the incident), P.W.4 Maya Ram, Village Pradhan, who scribed the report, told that the accused Sandeep was a person of bad character, P.W.5 Rajesh, uncle of the deceased, told that he did see Sandeep on that day from a distance, hitting some child, but because of fear did 4 not disclose the incident to anyone, P.W.6 Pawan disclosed that on the day of incident accused (appellant) had taken a bicycle from him, which he did not return in that night and after the incident on third day the bicycle was received near the field of Babu Ram and P.W.7 Karan Singh (brother-in- law of complainant) disclosed that accused Sandeep had made extra judicial confession before him about commission of murder of the boy. On completion of investigation, Charge Sheet (Ext.A- 13) was submitted by Inspector Mangoo Singh Verma (to whom the investigation was later transferred) for trial of accused Sandeep, relating to offences punishable under Sections 302 and 377 I.P.C.. (4) The I Additional Chief Judicial Magistrate, Haridwar, 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 trial. Learned Sessions Judge, Haridwar, on 30th November 2000, after hearing the parties, framed charge of offences punishable under Sections 377 and 302 I.P.C. against accused / appellant Sandeep. The accused Sandeep pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W.1 Narendra S/o Sant Ram (complainant and father of the deceased); P.W.2 Som, S/o Raja Ram, who has stated that he had last seen accused with deceased; P.W.3 Mange Ram 5 S/o Dhoom Singh, who has stated that he saw the accused in a nervous condition after the incident, P.W.4 Maya Ram S/o Ram Singh, Village Pradhan, who has stated that accused Sandeep was a man of bad character; P.W.5 Rajesh S/o Sant Ram, uncle of the deceased, who has stated that he saw accused Sandeep hitting with stone on the person of a child; P.W.6 Pawan S/o Telu Ram, who has stated that a bicycle was taken by the accused, which was not returned on the day of incident; P.W.7 Karan Singh S/o Surja Ram, who has stated that accused Sandeep made an extra judicial confession to him; P.W.8 Dr. Suresh Kumar Chauhan, who conducted postmortem examination; P.W.9 Constable Yung Bahadur Singh, who prepared Check Report, on the basis of the First Information Report; P.W.10 Sub Inspector Jodh Singh Adhikari, who investigated the crime and P.W.11 Rajendra Kumar, who prepared the Inquest Report. All the oral and documentary evidence was put to the accused, under Section 313 Cr.P.C., in reply to which he alleged the same to be false. In defence on behalf of accused D.W.1 Narendra Kumar S/o Harphool Singh and D.W.2 Pramod Kumar S/o Sewa Ram, were got examined, who have stated that the accused was not a man of bad character and there was enmity of the accused with the complainant. (5) After hearing the parties, the trial court found accused Sandeep guilty of charge of offence 6 punishable under Sections 377 and 302 I.P.C.. After hearing on sentence, the convict was sentenced to imprisonment for life and directed to pay fine of Rs.10,000/-, under Section 302 I.P.C., and to rigorous imprisonment for a period of ten years and further directed to pay fine of Rs.10,000/-, under Section 377 I.P.C.. It is further directed by the trial court that in case of default of payment of fine the convict would undergo rigorous imprisonment for a period of six months (for each default). Aggrieved by said judgment and order dated 15.07.2006, passed by the trial court (Additional Sessions Judge / II Fast Track Court, Haridwar), in Sessions Trial No. 404 of 2000, this appeal is preferred on behalf of accused / appellant (in jail). (6) Before further discussions, we think it just and proper to mention the ante mortem injuries found on the person of the deceased by P.W.8 Dr. Suresh Kumar Chauhan, who prepared Autopsy Report (Ext.A-2) after postmortem examination on 28.07.2000. The ante mortem injuries mentioned in the Autopsy Report are reproduced as under:- (i) Contusion 10cm x 8cm on right side of forehead and the face over the right eye. (ii) Contusion 5cm x 4cm around the left eye. 7 (iii) Abrasion and contusion 8cm x 5cm on left side of the face. (iv) Traumatic swelling 12cm x 10cm on left side and back of head. (v) Abrasion 1cm x 12cm on palm aspect of left middle finger in middle phalange. (vi) Abrasion and contusion 3cm x 1cm on glens penis upper side. (vii) Abrasion .5cm x .5cm on left buttock. On internal examination, the Medical Officer found clotted blood present beneath the scalp. The fracture of left parietal and left temporal and occipital bones was also found. The left meningies were found lacerated. After postmortem examination, P.W.8 Dr. Suresh Kumar Chauhan, opined that the deceased had died of shock and haemorrhage due to ante mortem injuries. Though he has not mentioned anything as to commission of unnatural offence with the deceased in the Autopsy Report but in his statement before the court P.W.8 Dr. Suresh Kumar Chauhan has stated that in his opinion injury on the buttock of the deceased could have been caused due to unnatural offence committed with the deceased. From the testimony of this witness it is established on the record that Shekhar (deceased) has died a homicidal death. The Autopsy Report read with statement of the Medical officer indicates that the boy was subjected to carnal through anus before being murdered. 8 (7) Now this Court has to see whether the accused / appellant Sandeep has committed the crime or not. P.W.1 Narendra S/o Sant Ram, is father of the deceased, who has lodged the First Information Report (Ext.A-1). This witness has not named accused / appellant in his report and simply stated that on the day of incident his son Shekhar had gone between 2.00 to 3.00 P.M., from his house as usual towards stone crusher unit to catch fish from nearby drain. This witness has further stated that at 6.00 P.M. he heard from the villagers that there is a dead body lying in the field of Babu Ram near the stone crusher. On this, he went there and identified the body of his son. The witness has further narrated the condition of the deceased that there was shirt on his upper part of the body but no clothes below the waist. P.W.1 Narendra has further stated that there were marks of injury on the head and face of the deceased. The witness has further stated that with the help of the villagers he took the deceased to Shanti Hospital, Ajitpur, where the Doctors told him that child has already died. He has further told that there had been commission of unnatural offence with the deceased. On this, according to this witness, he took back the dead body of the deceased to his house, and thereafter, went to the Police Station with Village Pradhan and lodged First Information Report (Ext.A-1). As such, this witness has corroborated the prosecution story only to the extent that his son 9 had died homicidal death and that the boy was subjected to sodomy before his death. (8) P.W.2 Som S/o Raja Ram has stated that at about 4.00-4.30 P.M. on the day of incident he saw accused Sandeep going with Shekhar (deceased) towards Himalayan Stone Crusher. This witness has further stated that at about 6.00-6.30 P.M., he came to know from the villagers that in the field of Ram Babu dead body of a child is lying. On this, he too went to the spot and saw the dead body of Shekhar. This witness has also corroborated that there were marks of injury on the face of the deceased. However, in cross-examination this witness admits that due to the incident the villagers were agitated and torched a car belonging to Stone Crusher owners. (9) P.W.3 Mange Ram S/o Dhoom Singh has stated that on the day of incident, at about 5.30 P.M., he saw accused Sandeep coming towards village and he was looking nervous. According to this witness, thereafter, later he came to know that Shekhar’s dead body was lying in the field of Babu Ram on that day. When he went to the spot, he also saw that there were marks of injury on the head and cheeks of the deceased. But this witness could not explain why he did not inform name of accused before it is disclosed to Investigating Officer. 10 (10) P.W.4 Maya Ram S/o Ram Singh, is Village Pradhan, who is also scribe of the report. This witness has only corroborated the fact that on the day of incident between 5.30-6.00 P.M., villagers informed him that the dead body of Shekhar, aged 10 years, is lying in the field of Babu Ram, on which he went to the spot. This witness has further stated that accused Sandeep is a man of bad character. He has also corroborated that the report was got scribed through him by the complainant before coming at Police Station. (11) P.W.5 Rajesh S/o Sant Ram, uncle of the deceased, has stated that on the day of incident at about 4.45 P.M., he saw accused Sandeep hitting a child with stone. This witness has further stated that since he was threatened by the accused, he kept quiet and did not report the matter to anyone due to fear. On examination of his testimony we did not find it trustworthy for the reason, in his cross- examination the witness has stated that he saw the incident from a distance of 20-25 furlongs. From such distance it was practically impossible for a person to witness the incident. Apart from this, there is another ground which creates reasonable doubt in the statement of this witness i.e. that this witness did not disclose that Sandeep has committed the crime for 5-6 days. Even if he was threatened by the accused, after the arrest of the accused on the third day, he could have easily told that he had seen the accused committing murder. 11 (12) P.W.6 Pawan S/o Telu Ram has stated that on the day of incident at about noon accused Sandeep had taken a bicycle from him, but he did not return the same in that night. This witness has further stated the fact that accused was a man of bad character. In the cross–examination, this witness has stated that later on his cycle was found near the field of Babu Ram. The statement of this witness is also shaky and not natural, for villagers had gone towards Babu Ram’s field on the day of incident after the dead body of Shekhar was found, there should have been no difficulty in seeing that the bicycle was lying nearby. According to this witness, his cycle could be recovered only when ‘Darogaji’ (Investigating Officer) came to village on third day. Apart from this, there is no recovery memo made by the Police. (13) P.W.7 Karan Singh S/o Surja Ram, R/o Bishanpur, has stated that on 27.07.2000 at about 7.30 P.M. accused Sandeep came to him and told him that he had committed murder of a boy and he be saved. This witness also appears to be unnatural while making the above statement. From cross- examination of P.W.7 Karan Singh, it appears that he is brother-in-law of complainant Narendra. In his examination, the witness has stated that accused made an extra judicial confession to him for the reason he wanted that he (P.W.7) should help the accused to save him as by getting help of 12 one Vikas Chaudhary. But in cross-examination, the witness has stated that he does not know Vikas Chaudhary nor he had got done any work from Vikas Chaudhary. In these circumstances, it does not appear natural conduct on the part of the accused to go to the brother-in-law of the complainant after committing murder of the boy and make a confessional statement to him, for taking help of one Vikas Chaudhary. (14) As far as the statement of P.W.2 Som S/o Raja Ram and P.W.3 Mange Ram S/o Dhoom Singh, are concerned, though one has stated that he last saw the accused with the deceased and another has stated that he saw accused coming in a nervous state of mind. But, from their statements, it is clear that both of them had gone to the field of Babu Ram when dead body of Shekhar was found lying there, in such circumstances, they could have easily told it to the complainant P.W.1 Narendra that Sandeep was seen going with deceased and coming in a nervous state of mind. P.W.1 Narendra Kumar has stated that he was told that dead body of a child is lying in the field by Som (P.W.2). Had P.W.2 Som S/o Raja Ram seen accused with the deceased and in his natural conduct communicated said fact to Narendra (P.W.1), name of Sandeep would have naturally been mentioned in the First Information Report (Ext.A-1), by the complainant. As such, testimony of these two witnesses is also does not inspire confidence. 13 (15) In the above circumstances, and in view of the above discussions, after going through the entire evidence on record afresh, we are of the view that it cannot be said beyond reasonable doubt that accused / appellant Sandeep has committed sodomy and murdered Shekhar, as suggested by the prosecution. That being so, giving the accused benefit of doubt, this appeal deserves to be allowed. Therefore, the appeal is allowed. The conviction and sentence recorded by the trial court vide its judgment and order dated 15.07.2006, passed in Sessions Trial No. 404 of 2000 is set aside. The accused / appellant Sandeep is acquitted of the charge of offence punishable under Sections 377 and 302 I.P.C.. He is in jail. He be set at liberty, if not wanted in connection with any other crime. The Registry is directed to send a copy of this order to the Superintendent of Jail, where the accused is lodged. (B.S. Verma, J.) (Prafulla C. Pant, J.) 16.04.2009 NS 14