IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Government Appeal No. 1862 of 2001 (Old No. 1649 of 1999) State of Uttar Pradesh (Now State of Uttarakhand) ………. Appellant Versus 1. Jaymal Singh S/o Sukhdev Singh 2. Kulvinder Singh S/o Jagtar Singh 3. Sukhdev Singh S/o Amar Singh (since deceased) 4. Dharam Singh S/o Sukhdev Singh R/o Vill. Madarpur P.S. Manglore District – Haridwar. ……. Accused respondents. Present : Sri B.S. Parihar, Brief holder present for the State/appellant. Sri S.P.S. Panwar, Senior Advocate assisted by Sri Sachin Panwar Advocate and Sri J.S. Virk, Advocate (Amicus Curiae) for the accused respondents. Hon’ble Prafulla C. Pant, J. Hon’ble Nirmal Yadav, J. [Oral : Hon’ble Praffulla C. Pant,J. ] This appeal, preferred under section 378 of the Code of Criminal Procedure, 1973 (for short Cr.P.C.) is directed against judgment and order dated 26.02.1999 passed by Additional Sessions Judge, Roorkee in Sessions Trial No.299 of 1997, whereby the said court has acquitted accused/respondents Jaymal Singh, Kulvinder Singh, Sukhdev Singh and 2 Dharam Singh from the charge of offences punishable under section 302 read with section 34 and under section 323 read with section 34 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 18.06.1997 at about 04.00 p.m. Guru Prakash (son of complainant PW-1 Gurudev Singh) alongwith one Lakhvinder Singh were grazing his cattle in the field of one Hariya (member of schedule caste) in the village Madarpur within the limits of police station Manglore district Hardwar to which accused respondent Jaymal Singh and his son objected to and started to hurling abuses at Guru Prakash and Lakhvinder Singh. On this, Guru Prakash went home and told about the incident to his brother PW-2 Guru Preet Singh (another son of complainant PW-1 Gurudev Singh). Thereafter, PW-2 Guru Preet Singh alongwith his mother Baldev Kaur (deceased) went to the place of incident and asked accused respondent Jaymal Singh as to why he abused Guru Prakash. This enraged Jaymal Singh, who gave blow with lathi on the head of Guru Preet Singh who suffered injury. Baldev Kaur (mother of Guru Preet Singh) tried to intervene and meanwhile accused respondent Kulwinder Singh armed with Lathi, Dharam Singh 3 armed with DBBL gun, Sukhdev Singh armed with country made pistol came there, and Dharam singh fired shot from the gun which hit on the chest of Baldev Kaur. Baldev Kaur succumbed to the injury and died. Report of this incident was lodged at police station Manglore at about 05.40 p.m. On the basis of report (exhibit A-1) submitted by PW-1 Gurudev Singh against accused Jaymal Singh, Sukhdev Singh, Kulwinder Singh and Dharam Singh relating to offence punishable under section 302 IPC (through out-post Goverdhanpur), crime No.30/188 of 1997 was registered. PW-4 Sub Inspector Surendra Nath Yadav investigated the crime. He took the dead body of Baldev Kaur in his possession and prepared inquest report (exhibit A-6), sketch of the dead body (exhibit A-7), letter to Chief Medical Officer (exhibit A-8) and Police form No.13 (exhibit A-9) on 19.06.1997. The postmortem examination was conducted by PW-5 Dr. Ardhendu Dey on 19.06.1997 at about 01.15 p.m. He recorded two ante mortem injuries one firmarm wound of entry and another firmarm wound of exit in the autopsy report (exhibit A-15). The Medical Officer opined that deceased has died due to shock and haemorrhage as a result of ante mortem injuries. Injuries on the person of PW-2 Guru Preet Singh were examined by PW-3 Dr. Braham Singh on 18.06.1997 at Primary Health Centre, Laksar, who prepared injury report (exhibit A-2). After interrogating the witnesses, inspecting the spot 4 and on completion of investigation, chargesheet (exhibit A-13) was filed by Investigating Officer against all the four accused Jaymal Singh, Sukhdev Singh, Kulwinder Singh and Dharam Singh for their trial in respect of offence punishable under section 302 IPC. 4. The Judicial Magistrate, Roorkee on receipt of the chargesheet on 22.08.1997, after giving necessary copies to the accused/respondents, as required under section 207 of Cr.P.C., appears to have committed the case to the court of Sessions for trial. Learned Additional Sessions Judge, Roorkee on 23.07.1998, after hearing the parties, framed the charge of offences punishable under section 302 IPC and one punishable section 323 IPC against accused Dharam Singh and a separate charge was framed in respect of offence punishable under section 302/34 IPC and under section 323/34 IPC against remaining three accused respondents Jaymal Singh, Sukhdev Singh and Kulwinder Singh. All the four pleaded not guilty and claimed to be tried. On this, prosecution got examined PW-1 Gurudev Singh (complainant and husband of deceased), PW-2 Guru Preet Singh (injured eye witness), PW-3 Dr. Braham Singh who recorded injury on the person of Guru Preet Singh, PW-4 Sub Inspector Surendra Nath Yadav who investigated the crime, PW-5 Dr. Ardhendu Dey who 5 conducted postmortem examination on the dead body of Baldev Kaur. 5. The oral and documentary evidence was put to the accused under section 313 of Cr.P.C. in reply to which they pleaded that they have falsely been implicated due to enmity. It is also pleaded by them at the end of their replies, that complainant PW-1 Gurudev Singh was a terrorist and used to give shelter to the terrorists. On information being given by accused Jaymal Singh, Gurudev Singh remained in jail under Terrorist and Destructive Activities Act. He harboured enmity, due to this, he implicated the accused respondents. In defence, DW-1 Chandra Pal Singh was examined. After hearing the parties, trial court found that the prosecution has failed to prove charges beyond reasonable doubt against accused respondents and acquitted them of the charges. Aggrieved by the said judgment and order dated 26.02.1999 passed by Additional Sessions Judge, Roorkee in Sessions Trial No.299 of 1997. This appeal was filed before Allahabad High Court on 26.05.1999. The appeal is received by this Court under section 35 of U.P. Re-organization Act, 2000 (Central Act No. 29 of 2000) for its disposal. Leave was granted and appeal was admitted by this Court. 6. Before further discussion, we think it just and proper to mention the ante mortem injuries 6 recorded by PW-5 Dr. Ardhnedu Dey in the autopsy report (exhibit A-15), after conducting postmortem examination on the dead body of Baldev Kaur. The same are reproduced as under :- i. fire arm wound of entry 1.5 cm. x 1.5 cm x chest cavity deep on right side of upper part of chest just lateral midline 4 cm. below the clavicle, margins inverted, blackening and charring of skin around the wound present. Direction of wound is from front to backward. ii. Fire arm wound of exit 2 cm. x 1.5 cm. x chest deep on right side back of chest 7 cm. away from the midline just on the spine of right scapula. Scapula (right) fractured, margins everted, clotted blood present. The medical officer opined that deceased had died due to shock and haemorrhage as a result of fire arm ante mortem injuries. 7. From the above medical evidence, it is established on the record that Baldev Kaur died a homicidal death. Now, this court has to see whether trial court has erred in holding that prosecution failed to prove the charge of offence punishable under section 302/34, 323/34 IPC against accused 7 respondents Jaymal Singh, Kulwinder Singh, Sukhdev Singh and Dharam Singh. 8. PW1 Complainant Gurudev Singh, husband of the deceased has stated that his son Gurpreet Singh along with one Chandra Pal was grazing cattle in the field of Mange Ram. The witness further states that he was harvesting the crop of sunflower when he came to know that his son has suffered a lathi blow on his head. He further came to know that his wife Baldev Kaur had gone to the place of incident and she also suffered firearm injuries and bleeding. PW1 Gurudev Singh categorically stated that he did not see MAARPEET. By the time, he reached assailants had fled. The statement of this witness as to grazing of cattle by Guru Preet Singh, is inconsistent to what has been mentioned by him in the first information report, in which he states that his another son Guru Prakash with one Lakhvinder, was grazing the cattle on which Jaymal Singh objected to. In the first information report, it has been further mentioned that Guru Prakash went home and from their Gurpreet came, who asked Jaymal Singh as to why the accused had abused Guru Prakash whereafter he was given a blow with lathi. It is also mentioned in the first information report that Baldev Kaur came there to intervene and fire arm injury was caused by the accused respondent Dharam Singh due to which she died. In the first information report it is also 8 mentioned that incident was witnessed by Balbeer Singh, Chandra Pal and Jeet Singh. None of these three witnesses, who stated to have witnessed the incident, were examined on behalf of the prosecution. The statement given by PW1 Gurudev Singh is also not consistent to what he has mentioned in the first information report. 9. The star eye witness is PW2 Guru Preet Singh, who had suffered a head injury with lathi blow, which is corroborated from the testimony of PW3 Dr. Brahm Singh, who examined his injury at Primary Health Centre, Laksar, and prepared medico legal report (exhibit A-2). According to this witness, Guru Prakash and Lakvinder were grazing the cattle. PW2 Guru Preet Singh further states that Guru Prakash came home and told that accused Jaymal Singh hurling abuses at him. On this, he went out and asked Jaymal Singh, why did he abuse Guru Prakash, on this, Jaymal Singh gave blow with a lathi on the head of Guru Preet Singh. The witness further states that when his mother attempted to intervene, accused respondent Dharam Singh came with a gun and fired shot at her. Apparently, the statement of this witness, since supported by medical evidence on record, appears to be true. But the trial court has given reasons as to why it found that incident had not taken in the manner alleged by PW-2 Guru Preet Singh. 9 10. PW-4 Sub Inspector Surendra Nath Yadav has stated that DBBL Gun used in commission of crime was recovered from the accused respondent Dharam Singh and recovery memo (exhibit A-12) was prepared on 12.06.1997. It was discussed by the trial court that if a fire is shot from such a gun of 12 bore, the injury caused on the person of the deceased should have spread in an area more than 1.5cm x 1.5cm mentioned in the autopsy report. PW-2 Guru Preet Singh in his cross examination states that fire was shot from the distance of 50 meters. 11. PW-5 DR. Ardhendu Dey has clearly mentioned that the blackening and charring could not have been caused around the injury if the shot is fired from the distance of more than 3-4 feets. Postmortem examination report (exhibit A-15) shows that there was blackening and charring of the skin round wound of entry of firearm. This inconsistency between medical evidence and oral testimony creates reasonable doubt as to the manner of commission of crime suggested by the prosecution. 12. This Court having reassessed the evidence on record found that in the above facts and circumstances of the case, it can not be said that the view taken by trial court is perverse or against the evidence on record. It is also pertinent to mention here that place of incident mentioned in site plant 10 (exhibit A-10) does not tally with the place of incident described by PW-2 Guru Preet Singh in his cross examination. Where, from the evidence on record, two views are possible, it is not desirable on the part of appellate court to reverse the findings of acquittal recorded by trial court. 13. For the reasons discussed above, we are of the view that this appeal is liable to be dismissed. The appeal is dismissed. Lower court record be sent back. (Nirmal Yadav, J.) (Prafulla C. Pant, J.) JKJ 29.09.2010