IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 137 of 2002 1. Karam Singh S/o Chunni Singh R/o Bukshora, O.P. Dineshpur, P.S. Rudrapur, District U.S. Nagar. 2. Shanker Singh S/o Karam Singh R/o Bukshora, O.P. Dineshpur, P.S. Rudrapur, District U.S. Nagar. ...…………. Appellants Versus State of Uttarakhand ...…………. Respondent Along with Criminal Jail Appeal No. 141 of 2002 1. Karam Singh S/o Chunni Singh R/o Bukshora, O.P. Dineshpur, P.S. Rudrapur, District U.S. Nagar. 2. Shanker Singh S/o Karam Singh R/o Bukshora, O.P. Dineshpur, P.S. Rudrapur, District U.S. Nagar. ...…………. Appellants Versus State of Uttarakhand ...…………. Respondent 2 Mr. Lalit Miglani, Advocate (Amicus Curiae) for the appellants. Mr. Prabhakar Joshi, Brief Holder for the respondent-State. Coram : Hon’ble Prafulla C. Pant, J. Hon’ble Alok Singh, J. Prafulla C. Pant, J. (Oral) These two appeals, preferred under Section 374 of the Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), are filed by the same accused / appellants and directed against the same judgment and order dated 30th of May 2002, passed by the then Sessions Judge, Udham Singh Nagar, in Sessions trial No. 44 of 2000, whereby accused / appellants Karam Singh and Shanker Singh have been convicted under Section 302 read with Section 34 of the Indian Penal Code, 1860 (hereinafter referred as I.P.C.), and each one of the convicts has been sentenced to undergo imprisonment for life. Criminal Appeal No. 141 of 2002 is received through the Superintendent Sub-Jail, Haldwani, while the Criminal Appeal No. 137 of 2002, is filed by the counsel of the appellants. 2) Heard Mr. Lalit Miglani, Amicus Curiae on behalf of the appellants and Mr. Prabhakar Joshi, Brief Holder for the respondent State. 3) Prosecution story, in brief, is that due to some land dispute, the deceased Phool Singh had enmity with accused / appellants Karam Singh and his son Shanker 3 Singh. On 17.07.1999, in Village Bukshora, P.S. Rudrapur, District Udham Singh Nagar, at about 12:45 P.M., accused / appellant Karam Singh, armed with a gun, and accused / appellant Shanker Singh, armed with an axe, and Bilso Devi, wife of Karam Singh (since acquitted) armed with GANDASA, met the deceased Phool Singh. They expressed their annoyance to the deceased as to how he has called Panchayat, relating to the land dispute, and thereafter, accused / appellant Karam Singh fired a shot from the D.B.B.L. gun (Ext. 1). Thereafter, accused / appellant Shanker Singh also caused injuries on the person of Phool Singh with an axe (Ext. 2). Soon thereafter, Bilso Devi also started assaulting Phool Singh with the GANDASA. On receiving the information, Mangala Devi, mother of complainant (P.W. 6 Paramjeet Singh) also reached there. Accused / appellant Karam Singh fired another shot from the gun at her, and both Phool Singh and Mangala Devi died of the injuries received by them. Witnesses Ramesh Prasad (P.W. 1), Harbans Singh (P.W. 2) and others witnessed the incident. On hearing the gunshot, P.W. 7 Head Constable Gopal Singh who was on patrol duty with other constables, also reached at the spot. Accused / appellants Karam Singh and Shanker Singh were arrested in the village by the policemen, who reached at the spot. They were taken to police station where P.W. 6 Paramjeet Singh lodged first information report (Ext. A –4) at Police Station Rudrapur. On the basis of said first information report, 4 crime No. 914 of 1999, was registered against accused Karam Singh, Shanker Singh and Bilso Devi in respect of offence punishable under Section 302 of I.P.C., and check report (Ext. A –23) was prepared. Head Constable Gopal Singh (P.W. 7) prepared the recovery memo (Ext. A –1) relating to D.B.B.L. gun (Ext. 1) with two empty cartridges, and an axe (Ext. 2) recovered from Shanker Singh. The investigation was taken up by P.W. 9 Inspector Brij Pal Singh Malik. Both the dead bodies were sealed and an inquest reports (Ext. A –7) (relating to dead body of Phool Singh) and Ext. A –6 (relating to dead body of Mangala Devi) were prepared. Also, sketch of the dead bodies (Ext. A –10 and Ext. A –16), police form No. 13 (Ext. –11 and Ext. A –15), letter to the Chief Medical Officer (Ext. A – 17), requesting for postmortem examination were prepared. The postmortem examination was conducted by P.W. 8 Dr. S.C.S. Koranga, who prepared autopsy report (Ext. A –6) (relating to Mangala Devi) and Ext. A –7 (relating to Phool Singh). The said Medical Officer found ante mortem firearm injury on the body of Mangala Devi. One firearm injury, incised and lacerated wound were found on the body of Phool Singh. The cause of death in both the cases was found to be shock and haemorrhage as a result of ante mortem injuries. The Investigating Officer also sent the empty cartridges and the gun recovered from the accused to the Forensic Laboratory, for examination. After examining the witnesses and collecting the evidence, 5 the Investigating Officer submitted charge sheet (Ext. A –21), against all the three accused Karam Singh, Shanker Singh and Bilso Devi, for their trial in respect of offence punishable under Section 302 of I.P.C. 4) The Chief Judicial Magistrate, Rudrapur, District Udham Singh Nagar, on receipt of 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. Learned Sessions Judge, Udham Singh Nagar on 22.06.2000, after hearing the parties, framed charge of offence punishable under Section 302 read with Section 34 of I.P.C. against all the three accused namely Karam Singh, Shanker Singh and Bilso Devi. All the three pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1 Ramesh Prasad (declared hostile); P.W. 2 Harbans Singh (declared hostile); P.W. 3 Lakhvinder Singh (declared hostile); P.W. 4. Anand Singh (declared hostile); P.W. 5 Janardhan (declared hostile); P.W. 6 Paramjeet Singh (complainant); P.W. 7 Head Constable Gopal Singh; P.W. 8 Dr. S.C.S. Koranga (who conducted the postmortem examination on the dead bodies); P.W. 9 Inspector Brij Pal Singh Malik (who investigated the crime) and P.W. 10 Shyam Pal Singh (who accompanied Head Constable Gopal Singh, and in whose presence the check report (Ext. A –23) was prepared on the basis of the F.I.R.). The oral and 6 documentary evidence was put to the accused, under Section 313 of Cr.P.C., in reply to which they alleged the prosecution evidence to be false. The accused further stated that they have been falsely implicated in the crime due to enmity. In defence, D.W. 1 Constable Jagat Singh; D.W. 2 Jagdish Singh and D.W. 3 Ram Vilas were got examined. After hearing the parties, the trial court found accused / appellants Karam Singh and Shanker Singh guilty of charge of offence punishable under Section 302 read with Section 34 of I.P.C. However, the trial court opined that the prosecution failed to prove the charge as against accused Bilso Devi, beyond reasonable doubt, and acquitted her. After hearing the parties on sentence, each one of the convicts was sentenced to imprisonment for life. Aggrieved by said judgment and order dated 30th of May 2002, passed by Sessions Judge, Udham Singh Nagar, in Sessions Trial No. 44 of 2000, these appeals were filed by the accused / appellants. 5) Before further discussion, we think it just and proper to mention here the ante mortem injuries found on the bodies of the deceased by P.W. 8 Dr. S.C.S. Koranga. The autopsy report (Ext. A –6) relating to Smt. Mangala Devi shows that on postmortem examination performed at 02:00 P.M., on 18.07.1999, following ante mortem injury was found: 7 Gunshot wound size 10 cm X 8 cm X abdomen cavity deep, present on the left side of upper abdomen. Part of small intestine was protruding out. The Medical Officer opined in the autopsy report (Ext. A –6) that the deceased had died due to shock and haemorrhage, as a result of ante mortem injury. 6) P.W. 8 Dr. S.C.S. Koranga, after performing postmortem examination on the dead body of Phool Singh, at 1:30 P.M., on 18.07.1999, recorded following ante mortem injuries, in autopsy report (Ext. A –7): i) Incised wound 6 cm X 4 cm X bone deep present in front of neck just below hyoid cartilage, fracture on 5th and 6th vertebra. ii) Multiple gunshot pallet wounds in the area of 15 cm X 10 cm on the right side of the chest, just below the nipple. iii) Lacerated wound size 4 cm X 3 cm X muscle deep present on right upper arm. The cause of death in respect of Phool Singh also as opined by the Medical Officer was due to haemorrhage and shock as a result of ante mortem injuries. 8 7) From the above evidence, the prosecution has successfully proved that Phool Singh and Mangala Devi were murdered on 17.07.1999, as the dead bodies were one day old. The crucial question before us is as to who committed their murder. It is pertinent to mention here that P.W. 1 Ramesh Prasad (declared hostile); P.W. 2 Harbans Singh (declared hostile); P.W. 3 Lakhvinder Singh (declared hostile); P.W. 4 Anand Singh (declared hostile) and P.W. 5 Janardhan (declared hostile) did not support the prosecution story. P.W. 1 Ramesh Prasad has stated that though, the two namely Phool Singh and Mangala Devi were murdered, but the murder did not take place in his presence. He admits having signed Ext. A –1 i.e. the recovery memo prepared by the police, and Ext. A –2 and Ext. A –3 i.e. the recovery memos relating to blood stained soil and simple soil. P.W. 2 Harbans Singh has also made similar statement that accused Karam Singh, Shanker Singh and Bilso Devi did not commit murder in his presence. P.W. 3 Lakhvinder Singh also made similar statement and he denies that he heard any sound of fire at 12:45 P.M., on 17.07.1999. P.W. 4 Anand Singh though states that after commission of murder of Mangala Devi and Phool Singh, police came and inquest report was prepared, but he states that he has no knowledge if Karam Singh and Shanker Singh were arrested by the police at the spot immediately after the incident. P.W. 5 Janardhan also made similar statement. 9 [[ 8) The only eyewitness who has corroborated the prosecution story is P.W. 6 Paramjeet Singh (complainant) who states that on 17.07.1999, his mother Mangala Devi (deceased) and his uncle Phool Singh (deceased) were sitting near a culvert, when accused / appellants Karam Singh and Shanker Singh along with Bilso Devi came there. He has stated that Karam Singh was armed with gun, Shanker Singh was armed with axe, and Bilso Devi was armed with GANDASA (a heavy sharp edged weapon). He has further stated that Karam Singh fired at Phool Singh, and thereafter, at Mangala Devi. This witness has further stated that the accused assaulted Phool Singh. Though, the statement of this witness gets corroboration from the injuries mentioned in the postmortem reports, but this Court has to see whether his presence at the spot was natural, and had he actually witnessed the incident, particularly, when the other eyewitnesses have not supported the prosecution story. In his statement P.W. 6 Paramjeet Singh has stated that he was present on the spot where the incident took place, but it has come in the cross examination of P.W. 1 Ramesh Prasad that Paramjeet Singh was called from different place after the incident. In the cross examination of P.W. 6, he states that the culvert where the incident had taken place is at a distance of more than one kilometer from the Village Bukshora. At such a distance why the three Phool Singh, Paramjeet Singh and his mother 10 Mangala Devi were assembled and sitting there is not clear. As to the land dispute, which is alleged to be motive of commission of crime by the prosecution, this witness (P.W. 6 Paramjeet Singh) states that there was no litigation in the court between Phool Singh and Karam Singh. P.W. 6 Paramjeet Singh and P.W. 7 Head Constable Gopal Singh state that after commission of crime, accused / appellant Karam Singh ran, but was caught after he was chased. The statement recorded under Section 313 of Cr.P.C. shows that the age of accused / appellant Karam Singh was 83 in the year 2002. That being so, he must be aged 80 years on the day of incident. It appears a bit doubtful if a man aged 80 years had fired gunshots and thereafter ran away, particularly, when the other witnesses who are said to have been present at the spot have not corroborated the prosecution story. It has come on the record that P.W. 7 Head Constable Gopal Singh was not a natural eyewitness but merely was a chance witness, as such, his testimony does not appear to be trustworthy. It has come on the record that deceased Phool Singh was a convict of murder, and he has enmity with others also. 9) For the reasons as discussed above, after reassessing the evidence on record, we are of the view that it cannot be said that the prosecution has successfully proved charge of offence punishable under Section 302 read with Section 34 of I.P.C., beyond 11 reasonable doubt, against the accused / appellants Karam Singh and Shanker Singh. Therefore, both these appeals deserve to be allowed, giving benefit of reasonable doubt to both the appellants. Accordingly, the appeals are allowed. The conviction and sentence recorded by the trial court against the accused / appellants Karam Singh and Shanker Singh, in respect of offence punishable under Section 302 read with Section 34 of I.P.C., is hereby set aside. They stand acquitted of the charge. A copy of this judgment be sent to the Superintendent of the District Jail, where the appellants are serving the sentence. They shall be set at liberty forthwith, if not required in connection with any other crime. Lower court record be sent back. (Alok Singh, J.) (Prafulla C. Pant, J.) Dt. November 07, 2009. H. Negi