IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Government Appeal No. 1880 of 2001 (Old No. 108 of 2000) State of U.P. (now State of Uttarakhand) ...…………. Appellant Versus 1. Jeewan Lal Sharma 2. Shyam Sunder 3. Ballabh Dutt All S/o Roor Chandra Sharma 4. Sanjay Sharma S/o Jeewan Lal Sharma All R/o Mohalla Rajghat, P.S. Kankhal, District Haridwar. ...…………. Respondents Mr. Nandan Arya, Asstt. Govt. Advocate, present for the appellant State. Mr. Bhuwnesh Joshi, Advocate, holding brief of Mr. Vivek Shukla, Advocate, present for the respondents / accused. Coram : Hon’ble Prafulla C. Pant, J. Hon’ble Sudhanshu Dhulia, J. Hon. Prafulla C. Pant, J (oral) This appeal, preferred under Section 378(4) of the Code of Criminal Procedure, 1973 (for short 2 Cr.P.C.), is directed against the judgment and order dated 25.04.2000, passed by Sessions Judge, Haridwar, in Sessions Trial No. 63 of 1996, whereby said court has acquitted the accused / respondents namely, Jeewan Lal Sharma, Shyam Sunder, Ballabh Dutt and Sanjay Sharma from the charge of offence punishable under Section 302 of the Indian Penal Code, 1860 (for short I.P.C.). 2) Heard learned counsel for the parties and perused the lower court record. 3) Prosecution story, in brief, is that on 13.12.1994, Nirmala Thapa, complainant lodged first information report at 13:40 P.M., at police station Kankhal, in District Haridwar, stating that on said date her husband Bharat Kumar Thapa (deceased) had gone to attend a case in the court, in a taxi bearing registration No. UP 07 D / 5127. The deceased was accompanied by his wife (Nirmala Thapa) and one Bobby and his mother-in-law. When the vehicle reached near Harihar Ashram, at about 12:50 P.M., four persons in two scooters appeared, and got stopped the aforesaid taxi. The four persons were accused / respondents Jeewan Lal, Sanjay, Shyam Sunder and Ballabh Dutt. The prosecution case is that Jeewan Lal whipped out a pistol, and Sanjay, Ballabh Sharma and Shyam Sunder took out their revolvers. Accused Sanjay opened the door of the taxi, and dragged the 3 complainant and her mother-in-law from the vehicle. Thereafter, the accused fired shots at Bharat Kumar Thapa, who died on the spot. On the basis of said report, Crime No. 202 of 1994, was registered at police station Kankhal, relating to offence punishable under Section 302 of I.P.C. against all the four accused. Investigation was taken up by Ms. Kamlesh Sharma, Station House Officer of police station Kankhal. The police went at the spot and prepared inquest report (Ext. A –13) on the very day (13.12.1994), at 15:40 P.M., after taking the dead body in their possession, and sealing the same. The police further got prepared police form No. 13 (Ext. A –14), sketch of the dead body (Ext. A –15), letter to the Chief Medical Officer (Ext. A –16), and sample seal (Ext. A –17). The postmortem examination was conducted by P.W. 4 Dr. A.K. Jain on 14.12.1994, at 11:00 A.M. on the dead body of Bharat Kumar Thapa, and prepared autopsy report (Ext. A –1). He recorded two gunshot wounds on the dead body. The Medical Officer opined that the deceased had died of shock and haemorrhage due to ante mortem injuries. The Investigating Officer inspected the spot, prepared site plans (Ext. A –11 and Ext A –12), interrogated the witnesses, and submitted charge sheet (Ext. A –18) against all the four accused, namely Jeewan Lal Sharma, Shyam Sunder, Ballabh Dutt and Sanjay Sharma. 4 4) The Judicial Magistrate, Haridwar, on receiving the charge sheet, after giving necessary copies to the accused, as required under Section 207 of Cr.P.C., committed the case to the court of sessions, for trial. Learned Sessions Judge, Haridwar, on 24.10.1998, after hearing the parties, framed charge of offence punishable under Section 302 of I.P.C. against all the four accused, namely Jeewan Lal Sharma, Shyam Sunder, Ballabh Dutt and Sanjay Sharma, who pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1 Ganga Devi (declared hostile); P.W. 2 Anil Kumar (witness of the preparation of inquest report); P.W. 3 Kailash (another witness of preparation of inquest report); P.W. 4 Dr. A.K. Jain (who conducted the postmortem examination), and P.W. 5 Head Constable Vikram Singh (who prepared the check report of the FIR). The oral and documentary evidence was put to the accused under Section 313 of Cr.P.C., in reply to which they alleged that they have falsely been implicated in the crime due to enmity. No evidence in defence was adduced. After hearing the parties, the trial court found that prosecution has failed to prove charge of offence punishable under Section 302 of I.P.C. against any of the accused, and acquitted all the four accused from the charge of offence punishable under Section 302 of I.P.C. Aggrieved by said judgment and order dated 25.04.2000, passed by Sessions Judge, Haridwar, in Sessions Trial No. 63 of 1996, this appeal was filed by the State before the 5 Allahabad High Court on 03.08.2000. The appeal is received by transfer to this court under Section 35 of the U.P. Re-organization Act, 2000 (Central Act No. 29 of 2000), for its disposal. Leave stood granted, as this court admitted the appeal on 20th of February 2006. 5) Before further discussion we think it just and proper to mention here the ante mortem injuries recorded by P.W. 4 Dr. A.K. Jain in autopsy report (Ext. A –1) prepared after conducting the postmortem examination on dead body of Bharat Kumar Thapa. The two ante mortem injuries mentioned in the autopsy report (Ext. A –1) are reproduced below: i) Gunshot wound of entry 0.7 cm X 0.7 cm X brain cavity deep, blackening and tattooing, margins inverted on left side upper part of neck 4 cm below the left ear, direction upward backward towards right. ii) Gunshot wound of entry 0.7 cm X 0.7 cm through and through, margins inverted with blackening and tattooing on left side neck 2 cm below the angle of right mandible. On internal examination of the body the Medical Officer found right side of the frontal bone fractured. He also found haemorrhage from the membranes. The Medical Officer further found lacerated wound with one metallic bullet embedded in the parietal lobe of the 6 brain. There was fracture on the left middle cervical fossa. In the opinion of the Medical Officer, the deceased died of shock and haemorrhage, as a result of ante mortem injury. On the basis of the medical evidence brought on record it is proved on the record that Bharat Kumar Thapa died homicidal death, and was murdered. But the question before this court is whether, the murder is committed by the accused / respondents Jeewan Lal Sharma, Shyam Sunder, Ballabh Dutt and Sanjay Sharma, or not. 6) What is significant in the present case is that none of the eyewitnesses including the complainant were got examined by the prosecution, even after several opportunities were given to it by the trial court. The complainant has not come up to prove that she saw the incident and lodged the first information report. No other eyewitness who is said to be inside the vehicle at the time of the incident was got examined on behalf of the prosecution, except Ganga Devi, who also did not support the prosecution story. In other words, there is nothing on the record to link the accused / respondents with the commission of crime, as no one has deposed that they had fired shots at the deceased. Even the Investigating Officer has not turned up before the trial court. In the circumstances, the trial court had no option, but to acquit the accused. 7 7) Therefore, having re-assessed the entire evidence on record, we do not find any illegality committed by the trial court in acquitting the accused (present respondents). As such, this appeal is liable to be dismissed. The appeal is dismissed. Lower court record be sent back. (Sudhanshu Dhulia, J.) (Prafulla C. Pant, J.) Dt. November 24, 2010. H. Negi