IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Government Appeal No. 1874 of 2001 (Old No.2999/1998) State … Appellant Versus Shamshad @ Chhota and others …Respondents Sri S.S. Adhikari, A.G.A. for the State/appellant Sri S.P.S. Panwar, Senior Advocate assisted by Sri H.C. Pathak, Advocate for the respondents Hon’ble B.C. Kandpal, J. Hon’ble Nirmal Yadav, J. Per :Hon’ble B.C. Kandpal, J.(Oral) This Government Appeal preferred by the State under Section 378 of Cr.P.C. is directed against the judgment and order dated 25.8.1998 passed by Additional District & Sessions Judge, Roorkee, Haridwar, in Sessions Trial No.295/1994, State versus Shamshad and others, whereby accused- respondents have been acquitted of the charge of offence punishable under Section 302/34 I.P.C. 2- Prosecution story in brief is that on 25.2.1994 at 1.30 p.m., written report (Ext.Ka.1) was lodged by complainant Khalil (PW-1) at P.S. Laksar with the averments that his nephew Ishhaq son of Ibrahim @ Abra had gone to plough the field. In the morning, at about 10.30 a.m. Shamshad @ Chhota, Ibad Ali and Visarat armed with country-made pistols came in the field and told to his brother that he is involved in several litigation against them, today they will teach a lesson to him. Thereafter, the three accused fired on his nephew with country-made 2 pistols. His nephew ran away in order to save his life but he fell down in the field of Gufran. He also raised alarm in order to save his life, on which Fazla, Tahir and Rifaqat came over there and they saw the whole incident. The three accused fired on the nephew in the field of Gufran, due to which he died at the spot itself. On this information Chick F.I.R. (Ext.Ka.3) was prepared and case was registered wherein entry was made in the General Diary vide Ext.Ka.4. The investigation of the case was taken up by S.H.O. Anil Kumar (PW-4), who prepared the inquest (Ext.Ka5), sketch of dead body (Ext.Ka.6), Police Form No. 13 (Ext.Ka.7), letter to C.M.O. Haridwar (Ext.Ka.8) and sample seal of dead body (Ext.Ka.9). The autopsy on the dead body of deceased was conducted by Dr. N.C. Saxena (PW-5), who prepared post mortem report (Ext.Ka.13). The investigating officer inspected the place of incident and prepared site plan (Ext.Ka.10) and took in his possession bloodstained earth and simple earth from the place of incident and prepared its recovery memo vide Ext.Ka.11. On 1.3.1994 the police arrested accused Visarat along with a pistol of 315 bore (alleged to have been used in the crime) and a live cartridge from jungle of village Mubarakpur. The recovered pistol, live cartridge, bullet taken out from the body of deceased during post mortem examination, bloodstained earth and clothes worn by the deceased, were sent for chemical examination to Forensic Science Laboratory, Agra and after completion of the investigation charge sheet (Ext.Ka.12) was submitted against the accused persons under Section 302 I.P.C. 3 3- The learned 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 trial. The learned Sessions Judge after hearing the parties framed charge of offence punishable under Section 302/34 I.P.C. against accused/respondents. The accused pleaded not guilty and claimed to be tried. 4- The prosecution in order to bring home guilt against the accused persons got examined as many as five witnesses in the case. PW-1 Khalil is the complainant, who proved written report (Ext.Ka.1). PW-2 is the prosecution witness who adduced corroborative evidence. PW-3 Dr. Braham Singh is the witness who medically examined witness Mustakim. PW-4 S.I. Anil Kumar is the investigating officer of the case, who submitted the charge sheet against the accused. PW-5 Dr. N.C. Saxena is the Medical Officer, who conducted the post-mortem examination and proved his report (Ext.Ka.13). 5- The accused/respondents in their statements under Section 313 Cr.P.C. denied the prosecution case and alleged that they have been falsely implicated in the case. However, the accused did not lead any evidence in their defence. 6- The reports of chemical examiner pertaining to arms and ammunitions recovered from accused Visarat as well as the bullet taken out from the body of the deceased were read in evidence under the provisions of Section 293 Cr.P.C. as Ext.Ka.14 and Ext.Ka.15 respectively. 4 7- The trial court having considered the entire evidence on record and hearing learned counsel for parties found not guilty the accused/respondents of the offence punishable under Section 302/34 I.P.C. and acquitted them of the charge levelled against them, vide impugned judgment and order dated 25.8.1998. 8- Feeling aggrieved by the aforesaid impugned judgment and order, the State has preferred the present appeal which has been placed before us for disposal. 9- We have heard Sri S.S. Adhikari, learned A.G.A. for the State/appellant, Sri S.P.S. Panwar, learned senior counsel assisted by Sri H.C. Pathak, learned counsel for the respondents and perused the record. 10- Before further discussion, it is pertinent to mention here that post mortem examination on the dead body of the deceased Ishhaq was conducted on 26.2.1994 by Dr. N.C. Saxena (PW-5), who found the following ante mortem injuries on his person: (i) Firearm wound of entry 1 cm x 0.7 cm on right side front of neck 3 cm below angle of mandible right side 1 cm away from mid line. No charring tattooing present. (ii) Firearm wound of exit 4 cm x 1 cm on base of chest right side upper part 2 cm away from mid line and 4 cm below right shoulder region tallying with injury no. 1. (iii) Firearm wound of entry 3 cm x 1 cm x 5 pelvic bone on middle of left buttock, bullet recovered of the bone. The Medical Officer (PW-1), at the end of post mortem examination, opined that the death had been caused due to shock and haemorrhage caused by the said injuries. 10- Learned A.G.A. for the State has submitted that PW-1 Khalil and PW-2 Mustakim had seen accused persons committing murder of deceased Ishhaq by firing on him with country-made pistols, but the trial court has committed error in not relying on their testimony. 11- On the other hand, learned counsel for the respondents has submitted that PW-1 Khalil and PW-2 Mustakim are interested witnesses and actually they had not seen the occurrence and the prosecution did not examine the eye witnesses of the occurrence. 12- From perusal of the record it reveals that the F.I.R. was lodged by PW-1 Khalil at P.S. Laksar with the allegation that accused Shamshad, Ibat Ali and Visarat committed murder of his nephew Ishhaq and occurrence was seen by Fazla, Tahir and Rifaqat. The prosecution did not examine these witnesses in the case. In the F.I.R. it has nowhere been mentioned that complainant Khalil (PW-1) and alleged eyewitness examined by the prosecution in this case as PW-2 Mustakim had also seen the occurrence. PW-1 Khalil and PW-2 Mustakim are the close relation and they are highly interested witnesses. Both the witnesses have contradicted 6 each other on material aspects of the case. PW-1 Khalil has deposed in his cross-examination that he got scribed the F.I.R. at the spot itself, whereas PW- 2 Mustakim gave a different version and contradicted with PW-1 by stating that the F.I.R. was not scribed at the place of occurrence. The attention of PW-2 was drawn towards F.I.R. (Ext.Ka.1) by the trial court at the time of his deposition and he stated that this is not the report which was actually scribed. PW-1 Khalil has alleged that PW-2 Mustakim had also accompanied with him to the police station, but this fact had also been denied by PW-2 Mustakim. 13- PW-4 Anil Kumar, investigating officer of the case, has also given different version. He has deposed that PW-2 Mustakim was not seen by him in the hospital and complainant Khalil (PW-1) was in the hospital. The medical examination of Mustakim (PW-2) was conducted by PW-3 Dr. Braham Singh at about 7.00 p.m. and no explanation has been given about the absence of this witness from 1.30 p.m. to 7.00 p.m. as he was not seen by investigating officer in the hospital. PW- 2 Mustakim also did not tell as to how he sustained injuries on his person. 14- In the present case, Fazla, Tahir and Rifaqat would have been the persons who might have told about the incident, but these witnesses have not been examined by the prosecution for the reasons best known to it. Although, PW-1 Khalil has tried to explain the reason for non-examination of these witnesses but the same is not convincing at all. Rifaqat is the son of the complainant Khalil (PW-1) 7 and according to PW-1, Rifaqat has not been produced in the case due to fear of the accused. Fazla was won over by the accused and Tahir had died. It appears that these persons Tahir, Fazla and Rifaqat were not the eyewitnesses of the occurrence and only with a view to make a case their names have been mentioned in the F.I.R. Had these persons seen the occurrence, at least Rifaqat would have been examined by the prosecution as he is the son of the complainant and merely on the threat given by the accused to him he would not have been left out of the case. PW-1 Khalil and PW-2 Mustakim are the father and the cousin of Rifaqat and both these witnesses have come before the court to depose against the accused and Rifaqat would also have come forward, had he actually seen the occurrence. PW-4 S.I. Anil Kumar in his cross- examination has admitted this fact that PW-1 Khalil had not told him that he himself had seen the occurrence. During the course of investigation, Khalil (PW-1) was not in a position to show the place of occurrence to the investigating officer. It was also not told to the investigating officer by Khalil (PW-1) that Mustakim (PW-2) was also present at the spot. Therefore, presence of PW-1 Khalil and PW-2 Mustakim at the scene of occurrence is highly doubtful and their testimony is not trustworthy and reliable. 15- The place of occurrence has also not been established in the instant case. According to the prosecution case, while deceased Ishhaq was ploughing the field at the place of occurrence, accused fired on him with country-made pistols, but site plan (Ext.Ka.10) which was prepared by the 8 investigating officer soon after the occurrence, tells a different story. According to the site plan, there was no ploughed field at the spot nor any plough and oxen was found when the investigating officer had reached there. The investigating officer also did not find any sugarcane field of PW-2 Mustakim or field of Rifaqat, Tahir and Fazla near the place of occurrence, therefore presence of Tahir, Fazla and Rifaqat near the place of occurrence does not arise, whereas according to the complainant, Tahir, Fazla and Rifaqat were doing agricultural work near the place of occurrence when the incident had taken place. Therefore, the learned trial court has rightly disbelieved the testimony of PW-1 Khalil and PW-2 Mustakim and we do not find any reason to interfere with the findings recorded by the trial court. 16- There are material contradictions in the testimony of PW-1 Khalil and PW-2 Mustakim. PW-4 S.I. Anil Kumar, investigating officer, has also given a different version with regard to the place of occurrence and the evidence of PW-1 Khalil and PW-2 Mustakim on various points. The testimony of PW-1 and PW-2 is not natural and reliable. Both these witnesses are partisan witnesses as they are close relation of the deceased. It is settled principle of law that testimony of a close relation or interested person can be believed if it is found cogent and reliable, but in the instant case, as discussed above, we find that presence of these witnesses is highly doubtful and their testimony is not believable at all and on such an evidence accused persons cannot be held guilty for committing the offence. The prosecution has intentionally withheld Tahir, Fazla 9 and Rifaqat for the reasons best known to it and the explanation put forth by PW-1 Khalil for non- examination of these persons is not convincing at all. Therefore, we are of the view that prosecution has not been able to prove its case against the accused-respondents beyond reasonable doubt for the offence under Section 302/34 I.P.C. and the learned trial court has rightly acquitted accused- respondents of the charge leveled against them. We do not find any ground to interfere with the judgment and order passed by the learned trial court. 17- For the reasons stated above, appeal lacks merit and is liable to be dismissed. 18- Accordingly, the appeal is dismissed. The impugned judgment and order dated 25.8.1998 passed by the trial court is hereby confirmed. (Nirmal Yadav, J.) (B.C. Kandpal, J.) 20-04-2010 SP