IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No. 183 of 2007 (Old No. 3321/1999) Pratap Singh Versus .…. Appellant/Accused State of U.P. …………… Respondent May 11, 2010 Mr. BS Adhikari, Advocate for the appellant. Mr. Amit Bhatt, Addl. GA for the State/respondent. HON’BLE DHARAM VEER, J. This appeal, preferred by the appellant under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.), is directed against the judgment and order dated 7.12.1999 passed by the Sessions Judge, Almora in Sessions Trial No. 27 of 1996, State v. Pratap singh, whereby the accused appellant Pratap Singh has been convicted under Section 304 Part II of Indian Penal Code, 1860 (for short, IPC) and sentenced to undergo R.I. for five years. He has also been convicted under Section 323 IPC and sentenced to undergo R.I. for one year. Both the sentences have been directed to run concurrently. 2. In brief, the prosecution case is that PW1 Mohan Singh lodged an FIR Ex. Ka-1 with Naib Tehsildar, Ranikhet on 25.10.1994 at 5.30 pm with the averments that today at about 1.30 pm, Nar Singh of his village Saili Sunoli was assaulted by the accused appellant Pratap Singh with stones and fists which resulted in death of Nar Singh and the said incident took place near the cattle shed on the village pathway known as ‘Chhandak’. On the basis of this report Ex. Ka-1, Naib Tehsildar, Ranikhet viz. Shambhu Dutt Joshi (PW6) prepared the chick FIR Ex. Ka-5 and took over the investigation of the case. (In rural 2 hilly areas of State of Uttarakhand, the Patwaris and certain revenue officials are vested with police powers vide U.P. Govt. Notification NO. 494/VIII-418-16 dated 7/3/1916). The inquest report Ex. Ka-2 was prepared on 26.10.1994 by the I.O. and along with the inquest report, police form no. 13, photolash and namoona seal were also prepared. Thereafter the dead body was sent for the post mortem. The post mortem was conducted by PW3 Dr. Harish Chandra Sharma on 26.10.1994 at 1 pm and thereafter he also prepared the post mortem report Ex. Ka-3. PW3 Dr. Harish Chandra Sharma also medically examined injured Jeewan Singh (PW4) on the same day i.e. on 26.10.1994 at 2.15 pm and also prepared the medical report Ex. Ka-4. During the course of investigation, the I.O. inspected the place of occurrence and prepared the site plan Ex. Ka-6. He also recorded the statements of the witnesses during the course of investigation. Statement of Man Singh (PW5) and statement of Bishan Singh (PW2) recorded by the I.O. are Ex. Ka-7 and Ka-8 respectively. After completing the investigation, he filed the chargesheet Ex. Ka-9 against the accused appellant under Section 302 IPC. 3. Learned Munsif Magistrate, Ranikhet after giving the necessary copies of the documents to the accused appellant as prescribed under Section 207 CrPC, committed the case to the Court of Sessions on 20.5.1996. 4. On 20.3.1997, learned Sessions Judge, Almora framed the charge against the accused appellant under Section 302 IPC for intentionally committing the murder of Nar Singh. The charge was read over and explained to the accused appellant, who pleaded not guilty and claimed to be tried. Thereafter on 14.9.1999, learned Sessions Judge, Almora framed the additional charge against the accused 3 appellant under Section 323 IPC for voluntarily causing hurt to Jeewan Singh (PW4). The charge was read over and explained to the accused appellant, who pleaded not guilty and claimed to be tried. 5. To prove its case, the prosecution has examined PW1 Mohan Singh, the complainant; PW2 Bishan Singh, an alleged eyewitness; PW3 Dr. Harish Chandr Sharma, who conducted the post mortem on the dead body of Nar Singh and also medically examined injured Jeewan Singh and prepared the post mortem report Ex. Ka-3 and medical report Ex. Ka-4; PW4 Jeewan Singh, an injured witness; PW5 Man Singh, an alleged eyewitness and PW6 Shambhu Dutt Joshi, Naib Tehsildar and the I.O. of the case. 6. Thereafter, statement of the accused appellant was recorded under Section 313 CrPC. The oral and documentary evidence were put to him in question form, who denied the allegations made against him and stated that he was falsely implicated in the case due to enmity. However, in defence, he did not produce any documentary or oral evidence. 7. After hearing learned counsel for the parties and after appreciating the evidence available on record, learned Sessions Judge, Almora vide his judgment and order dated 7.12.1999 convicted and sentenced to the accused appellant as discussed above. Against the aforesaid judgment and order dated 7.12.1999, the accused appellant has preferred the present appeal. 8. I have heard learned Counsel for the parties and have carefully perused the entire material available on the record. 4 9. Before any further discussion, it would be pertinent to mention the ante mortem injuries found on the body of the deceased Nar Singh as mentioned in the post mortem report Ex. Ka-3 prepared by PW3 Dr. Harish Chandra Sharma, who had conducted the post mortem on 26.10.1994 at 1 pm and the same are reproduced as below: “(1) Contusion over Rt. Side of forehead measuring 6.5 cm x 5.0 cm (2) Contusion over left side of forehead measuring 3.0 cm x 0.5 cm. Cause of death could not be ascertained hence viscera are being preserved.” 10. Injured Jeewan Singh (PW4) was also medically examined by the same medical officer PW3 Dr. Harish Chandra Sharma on the same day i.e. on 26.10.1994 at 2.15 pm and also prepared the medical report Ex. Ka-4, which is reproduced as below: “ (1) Abrasion over left side of forehead measuring 2.0 cm x 1.0 cm. Reddish brown scab present. About 0.5 cm above left eyebrow. (2) Sub-conjunctival injury, haemorrhage over lateral side of right eye. Red in colour. No mark of injury over lower and upper right eyelid and surrounding the right eye. C/o Pain over back of left ear but no external mark of injury. Opinion : Injury No. (1) simple, caused by friction, duration about a day. Injury No. (2) duration about a day. Regarding nature kept under observation. For caused by, no opinion can be given.” 11. To prove the aforesaid post mortem report Ex. Ka-3 and medical report Ex. Ka-4, the prosecution has examined PW3 Dr. Harish Chandra Sharma, who has 5 proved the contents of same and has further stated that deceased Nar Singh was about 68 years’ old at the time of said incident and the ante mortem injuries mentioned in the post mortem report Ex. Ka-3 could be caused by stone as well as by fists and kicks on 25.10.1994 at 1.30 pm. He has further stated that if an old man receives the aforementioned two injuries (as mentioned in Ex. Ka- 3), he might die due to shock, but death is not possible due to these injuries. He has also stated that no definite opinion about the shock could be given. About the injuries of PW4 Jeewan Singh, this witness has stated that injury no. (1) was simple in nature and about one day’s old and it could be caused by friction. Injury no. (2) was also about one day’s old and it was kept under observation for determination of its nature. These injuries could be caused on 25.10.1994 at about 1.30 pm. He has further stated that he has not prepared any supplementary report about the injury no. (2) of Jeewan Singh. He has also stated that the deceased Nar Singh might have got the aforementioned two injuries by falling and colliding against a rough surface. 12. To further prove its case, the prosecution has examined PW1 Mohan Singh, the complainant who has stated that he was Pradhan of village Saili Sunoli. On 25.10.1994 at 1.30 pm, he had gone for sowing the wheat, when Sher Singh came to him and told that accused appellant Pratap Singh had killed Nar Singh. Thereafter he went on the spot where he saw that Nar Singh was lying dead there. Since Patwari was on strike, therefore, he lodged the report with Naib Tehsildar Shambhu Dutt Joshi (PW6). The report Ex. Ka-1 was written by Lakshya Singh on his dictation. He has further stated that inquest report Ex. Ka-2 was prepared before him and he had also 6 signed on it. In his cross-examination, he has stated that he himself had not seen the said incident. He had seen only the crowd at the place of occurrence but did not see any accused. He has also stated that he cannot tell anything about the said incident. 13. PW2 Bishan has not supported the prosecution case and declared hostile. 14. PW4 Jeewan Singh, an injured witness who has stated that deceased Nar Singh was his grandfather. He hs further stated that 2-3 days prior to the said incident, a quarrel had taken place regarding removal of woods from the fields. On 25.10.1994 at 1.30 pm, when he along with his grandfather Nar Singh (deceased) were returning home from the field, accused appellant Pratap Singh came across near the cattle shed of Indra Singh and asked as to why the woods were removed from his field. The accused appellant pounced over Nar Singh and beaten him fists and kicks and also with stone. Nar Singh fell down. The accused appellant hit his grandfather Nar Singh in his mouth and stomach. When he tried to save his grandfather, the accused appellant hit on his eyes and mouth with fists. Man Singh (PW5) and Bishan Singh (PW2) came on the place of occurrence immediately after the incident. They served water to his grandfather, but was dead by that time. This witness was 13 years’ old at the time of said incident. In his cross-examination, he has stated that there were other villagers also who were ploughing their fields near the place of occurrence at the time of incident. He has further stated both he and the accused appellant were student of the same school and at the time of incident, accused appellant was a student of Class XII and they were at loggerheads in the school. Their families were also inimical to each other. He has also 7 stated that he had asked Mohan Singh (PW1) to lodge the report of the said incident. 15. PW5 Man Singh has not supported the prosecution case and was declared hostile. 16. PW6 Shambhu Dutt Joshi, the I.O. of the case, has stated that in the year 1994, he was posted as Naib Tehsildar at Ranikhet. He had prepared the chick FIR Ex. Ka-5 on the basis of the report lodged by Mohan Singh (PW1). He prepared the inquest report Ex. Ka-2 on 26.10.1994. Jeewan Singh (PW4) was medically examined and the dead body of Nar Singh was sent for post mortem. On the same day, he inspected the place of occurrence and prepared the site plan Ex. Ka-6. On 20.11.1994 he recorded the statement of Bishan Singh (PW2), that is Ex. Ka-7. On 2.12.1994, he recorded the statement of Man Singh (PW5), that is Ex. Ka-8. After completing the investigation, he filed the chargesheet Ex. Ka-9 against the accused appellant. 17. Thereafter, statement of the accused appellant was recorded under Section 313 CrPC. The oral and documentary evidence were put to him in question form, who denied the allegations made against him and stated that he was falsely implicated in the case due to enmity. However, in defence, he did not produce any documentary or oral evidence. 18. Learned Counsel for the accused appellant argued that on the basis of the evidence discussed above, the prosecution has not proved the case against the accused appellant Pratap Singh beyond reasonable doubt. I find substance in the argument of the learned Counsel for the accused appellant due to the following reasons: 8 (i) That FIR of the said incident was lodged by PW1 Mohan Singh, who admittedly is not an eyewitness of the incident. In his cross- examination, he has stated that he himself had not seen the said incident. He had seen only the crowd at the place of occurrence but had not seen any accused. He has also stated that he cannot tell anything about the said incident. (ii) That as per the statement of PW1 Mohan Singh, he was informed of the said incident by Sher Singh and he himself had not seen any occurrence and had given the FIR on the saying of Sher Singh. But Sher Singh has not been examined by the prosecution in support of its case. (iii) That PW2 Bishan Singh and PW5 Man Singh, who were said to be eyewitnesses of the incident, have not supported the prosecution case and were declared hostile. (iv) That as per the statement of PW4 Jeewan Singh there were other villagers also who were ploughing their fields near the place of occurrence at the time of incident and he had asked PW1 Mohan Singh to lodge the report, but nobody was named in the FIR who had seen the said incident. Neither this witness has named any such villager in his statement. Moreover, in contrary to the prosecution story, this witness has not stated anything about Sher Singh, who allegedly informed about the said incident to the complainant Mohan Singh (PW1). Complainant Mohan Singh has stated in his deposition that he reached at the place of occurrence after having informed by Sher singh, but this witness Jeewan Singh (PW4) has even 9 not stated anything about the fact as to whether PW1 Mohan Singh had reached at the place of occurrence or not after the said occurrence. Thus, the statement of this witness is not reliable, believable and it does not inspire the confidence. (v) That as per the post mortem report Ex. Ka-3, cause of death could not be ascertained. Hence, viscera was preserved. But viscera report has not been filed by the prosecution, which creates reasonable doubt on the prosecution story. (vi) That PW3 Harish Chandra Sharma has stated in his testimony that death was not possible on account of the injuries which was received by deceased Nar Singh, who was about 68 years’ old at the time of said incident. He has also stated that an old man might die due to shock after receiving the injuries as mentioned in the post mortem report Ex. Ka-3, but death is not possible due to these injuries. He has also stated that no definite opinion about the shock could be given. (vii) Hence, in the abovesaid circumstances when the viscera was preserved, but report thereof was not produced, no supplementary report about the injury no. (2) of PW4 Jeewan Singh was prepared and in view of the statement of PW3 Dr. Harish Chandra Sharma that the deceased Nar Singh cannot die because of the ante mortem injuries noted in the post mortem report Ex. Ka-3, it can safely be inferred that prosecution theory finds no corroboration from the medical evidence. (viii) Thus neither the ocular evidence nor the medical evidence supports the prosecution 10 story, which creates grave doubt on the whole prosecution story. 19. Thus, in view of my foregoing discussion of evidence and for the reasons recorded above, it is held that the prosecution has miserably failed to prove its case against the accused appellant beyond reasonable doubt for the offence punishable under Section 304 Part II and Section 323 IPC and the appellant is entitled to get the benefit of doubt. As such, the learned trial court erred in holding the appellant guilty and convicting him under Section 304 Part II and Section 323 IPC and, therefore, the impugned judgment and order of the trial court is not justified and correct and the same is liable to be set aside. 20. In the result, the appeal is allowed. Judgment and order dated 7.12.1999 passed by the Sessions Judge, Almora in Sessions Trial No. 27/1996, State v. Pratap Singh, thereby convicting the appellant Pratap Singh under Section 304 Part II and also under Section 323 IPC is hereby set aside. The conviction of the appellant Pratap Singh under aforesaid Sections 304 Part II and 323 IPC is hereby quashed and he is acquitted of the charges leavelled him. Consequently, sentence of rigorous imprisonment for a period of five years under Section 304 Part II IPC and R.I. for one year under Section 323 IPC are hereby also set aside. Appellant is on bail. His bail bond is cancelled. He need not surrender unless required in any other case. 21. Let the lower court record be sent back. PRABODH (Dharam Veer, J.) 11.5.2010