IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 349 of 2004 Irfan. ………. Appellant Versus State of Uttarakhand. ..………. Respondent None for the appellant. Mr. Amit Bhatt, Addl. Government Advocate for the State / respondent. JUDGMENT Coram: Hon’ble Barin Ghosh, C.J. Hon’ble V.K. Bist, J. BARIN GHOSH, C. J. (Oral) The learned counsel engaged by the appellant informed us yesterday that his client has taken the brief from him. In the circumstances, we were contemplating of appointing a suitable Advocate to assist the appellant in the appeal and, for that matter, requested the learned Addl. Government Advocate to place before us the materials on record. The learned Addl. Government Advocate placed the materials on record before us, when it transpired to us that the appellant has been able to make out a good case in the appeal and his appeal is likely to succeed. We, accordingly, instead of engaging an Advocate to assist the appellant, called upon the learned Addl. Government Advocate to assist the Court for the purpose of upholding the judgment and order under appeal. The learned Addl. Government Advocate did his best and placed before us all the materials on record. 2. From the records of the case, it appears that on a First Information Report, lodged against named accused persons, investigation was conducted, whereupon, a police report was filed holding out that the said named persons are accused of committing crime punishable under Section 302 read with Section 34 of the Indian Penal Code. In the First Information Report, it was stated that the appellant was the person, who used a sharp-edged weapon, which caused the death of the victim. In the police report also, the same was the allegation. In the First Information Report and in the police report, it was alleged that the other accused 2 persons had common intention of committing the gruesome crime, which was, in fact, committed by the appellant herein. 3. The accused persons having denied to have committed the offences alleged against them, trial commenced. At the trial, the prosecution, through two eye-witnesses, sought to prove involvement of the appellant with the murder in question. In addition to that, the prosecution tried to prove the motive behind the murder as well as recovery of the murder weapon. The murder took place at 04:30 a.m. in the morning. At the time when the murder took place, the victim, who was about 5 feet 6 inch in height, was lying on a hand-pulled cart of about 4 feet length. The said cart was on a by-lane in between two hotels, namely, Hotel Garhwal and Hotel Himalaya. The victim was the owner of Hotel Himalaya. Hotel Himalaya comprised of two rooms. One of those rooms, it was alleged by the prosecution, belonged to another person and the victim had taken the same from him and that was the motive for killing the victim. The prosecution has failed to prove the said motive. Appellant was apprehended four days after the murder. Soon thereafter, he disclosed in the custody of the police that he has kept the murder weapon at a particular place, which, according to him, was a dry place. Accordingly, a search was carried out when the appellant also accompanied the search party and a sharp-edged weapon was recovered from the vicinity so disclosed by the appellant. However, the weapon, so recovered, did not contain any blood stain. It was contended that the same was washed out by rain water. The prosecution failed to bring on record evidence by anyone to the effect that, in between the date of murder and recovery of the weapon in question, it rained in the vicinity. In the circumstances, the prosecution failed to establish any of the circumstances leading to a conviction that the appellant was involved with the crime alleged against him. The prosecution as well as the trial court heavily relied upon the eye-witnesses. The first eye-witness was the father of the victim and the second eye-witness was the brother of the victim. Both of them deposed that they were working under the victim. The father, in his deposition, stated that, at the time of the incident, he was sweeping the hotel from 3 inside to outside. Therefore, at the time of the incident, the father of the victim was inside the hotel. From the plan produced by the prosecution, it appears that, if a person is within the hotel, his vision to the by-lane where the victim was found murdered and lying on the hand-pulled cart, is blocked by the wall of the hotel. In other words, while sweeping inside the hotel, the father of the victim could not see what is happening in the by-lane. According to the evidence of the brother of the victim, he too was inside the hotel. But, according to his evidence, he saw one of the accused persons holding the hand of the victim and another accused person is saying that the victim is the reason for the room of the hotel being not available to them and, accordingly, he should be murdered and that the appellant caused the blow by the sharp-edged weapon, which caused the death. Both, the father and the brother, alleged that they could see all these things in the darkness because the hotel had a generator. The existence of the generator did not come on any of the records prepared by the prosecution. Furthermore, there is no evidence that even if there was a generator, the lighting arrangement of the hotel could lighten up the by- lane so that a normal person can see, during the night, what is happening in the by-lane. In the event, the evidence of the father and the brother of victim is accepted, the same would tantamount to accepting the fact that they could see, what they alleged to have seen, through the wall. The evidence of the father and the brother did not bring on record any cry by the victim, which resulted in the father and the brother rushing to the by- lane. 4. There cannot be any dispute and the learned court below has correctly held that, in the event, there is ample evidence that the crime has been committed by the person accused, there is no necessity to prove motive, nor circumstantial evidence is required to corroborate the evidence of the eye-witnesses. However, the law requires the court to scrutinize the evidence given by the eye-witness so as to convince itself that there is no other scope but to rely upon the evidence given by the eye- witness. In the instant case, the nature of the evidence given by the eye- witnesses would show that the eye-witnesses could not bring to the notice 4 of the court anything, on the basis of which, the court could believe that what the eye-witnesses have said is believable. 5. We, accordingly, set aside the judgment and sentence under appeal and direct the appellant to be set free forthwith. The appeal, accordingly, stands allowed. (V.K. Bist, J.) (Barin Ghosh, C. J.) 24.08.2011 24.08.2011 G