IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 808 of 2001 (Old No. 283 of 2000) 1. Rajendra Singh S/o Lal Singh R/o Village Padampur, Patti Padampur, Tehsil Dhari, District Nainital. 2. Man Singh S/o Lal Singh R/o Village Padampur, Patti Padampur, Tehsil Dhari, District Nainital. 3. Chandan Singh S/o Jodh Singh R/o Village Padampur, Patti Padampur, Tehsil Dhari, District Nainital. 4. Sunder Nath S/o Kishan Nath R/o Village Padampur, Patti Padampur, Tehsil Dhari, District Nainital. ...…………. Appellants Versus State of U.P. (now State of Uttarakhand) ...…………. Respondent Mr. B.S. Adhikari, Advocate, present for the appellants. Mr. Amit Bhatt, Addl. Govt. Advocate, present for the State. Coram : Hon’ble Prafulla C. Pant, J. Hon’ble V. K. Bist, J. Hon. Prafulla C. Pant, J (oral) This appeal, preferred under Section 374 of the 2 Code of Criminal Procedure, 1973 (for short Cr.P.C.), is directed against the judgment and order dated 6th of January 2000, passed by Sessions Judge, Pithoragarh, in Sessions Trial No. 29 of 1992, whereby said court has convicted accused / appellants Rajendra Singh, Man Singh, Chandan Singh and Sunder Nath under Section 302 read with Section 34 of the Indian Penal Code, 1860 (for short I.P.C.), and sentenced each one of them to imprisonment for life. 2) Heard learned counsel for the parties and perused the lower court record. 3) Prosecution story, in brief, is that on 16.03.1992, Shiv Singh @ Shivraj Singh (deceased) had gone from his village Padampur to village Kuliyal Gaon to celebrate Holi festival. At about 05:00 P.M., he along with Sundar Nath, reached in the house of Jagannath Singh (P.W. 4) in said village. Accused / appellant Rajendra Singh had also gone there. They asked for water and glasses to have drinks from Smt. Jayanti Devi (P.W. 3) wife of Jagannath Singh. After sometime, at about 07:00 P.M., a quarrel took place between Shiv Singh @ Shivraj Singh (deceased) and accused / appellants Rajendra Singh, Sundar Nath, Chandan Singh and Man Singh. On hearing noise, Jayanti Devi (P.W. 3) came out and saw the accused / appellants assaulting Shiv Singh @ Shivraj Singh with lathies. Jagannath Singh (P.W. 4) also came out and 3 saw the incident. Shiv Singh @ Shivraj Singh died on the spot. Prosecution case is that Diwan Singh (P.W. 2), brother of the deceased, attempted to get lodged first information report with Patwari of Padampur, but he was advised to go to Patwari of village Kuliyal Gaon, as such, he got scribed report on 17.03.1992, and gave it to the Patwari of Mangal Khet on 18.03.1992. (In Uttarakhand hills vide U.P. Government Notification No. 494 / VIII – 418 –16 dated 7th March 1916, certain revenue officials are given police powers). On the basis of said report (Ext. A –2), a check report (Ext. A –3) was prepared by the Patwari on 18.03.1992, at about 02:00 P.M. On the same day (18.03.1992), the Patwari went to the village Kuliyal Gaon and took dead body of Shiv Singh @ Shivraj Singh in his possession, and prepared inquest report (Ext. A –4) and other necessary papers eg. sketch of the dead body (Ext. A –5), police form No. 13 (Ext. A –6) etc., and sent the body for postmortem examination. P.W. 1 Dr. D.K. Chaudhary conducted postmortem examination on the dead body of Shiv Singh @ Shivraj Singh on 20th of March 1992, at about 11:30 A.M. He opined in the autopsy report (Ext. A –1) that deceased had died of head injury with extra cerebral haemorrhage. After interrogating the witnesses, the Investigating Officer P.W. 6 Sri Krishna Joshi (Patwari) submitted charge sheet (Ext. A –9) against the four accused Rajendra Singh, Man Singh, Chandan Singh and Sundar Nath, for their trail in 4 respect of offence punishable under Section 302 of I.P.C. 4) The Chief Judicial Magistrate, Pithoragarh, on receipt of the 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, Pithoragarh, on 6th of December 1993, after hearing the parties, framed charge of offence punishable under Section 302 read with Section 34 of I.P.C. against all the four accused, namely Rajendra Singh, Sundar Nath, Chandan Singh and Man Singh, who pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1 Dr. D.K. Chaudhary (who conducted the postmortem examination); P.W. 2 Diwan Singh (informant and brother of the deceased); P.W. 3 Jayanti Devi (eyewitness); P.W. 4 Jagannath Singh (another eyewitness); P.W. 5 Jaman Singh (a chance eyewitness); and P.W. 6 Sri Krishna Joshi (the Investigating Officer). 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 been falsely implicated due to enmity. They further pleaded that it was Jagannath Singh (P.W. 4) who used to extract illicit liquor and he falsely got the accused / appellants implicated in the case to save himself. However, no evidence in defence was adduced. After hearing the parties, the trial court believed the 5 testimony of the eyewitnesses and found that all the four accused were guilty of charge of offence punishable under Section 302 / 34 of I.P.C. After hearing on sentence, each one of the convicts was sentenced to imprisonment for life. Aggrieved by said judgment and order dated 06.01.2000, passed by Sessions Judge, Pithoragarh, in Sessions Trial No. 29 of 1992, the convicts preferred this appeal before the Allahabad High Court on 15th of February 2000, where the same was admitted on 16.02.2000. The appeal is received by this court under Section 35 of the U.P. Re- organization Act, 2000 (Central Act No. 29 of 2000), for its disposal. 5) Before further discussion, we think it just and proper to mention here the ante mortem injuries found on the body of deceased by P.W. 1 Dr. D.K. Chaudhary, who mentioned the same in the autopsy report (Ext. A –1). The ante mortem injuries are being reproduced from the said document, as under: “ i) Lacerated wound with fracture in the skull along with line of carnal suture, size 9 cm X 3 cm. Blood clots present all around . ii) Lacerated wound over right maxillary region 6 cm X 4 cm on right side of forehead. iii) Multiple abrasions all over the back. iv) Multiple contusion over right side of chest and abdomen. 6 v) Two abrasions over the right elbow 2 cm X 1 cm and 1 cm X 1 cm.” On internal examination, the Medical Officer found fracture on the skull. He further observed that there was haematoma inside the brain. As to the cause of death, the Medical Officer opined that the deceased had died of head injuries. From the evidence of P.W. 1 Dr. D.K. Chaudhary read with the autopsy report (Ext. A –1) it is established on the record that Shiv Singh @ Shivraj Singh S/o Joga Singh had died homicidal death. However, P.W. 1 Dr. D.K. Chaudhary in his cross examination states that the injuries found on the body of the deceased could have been caused by falling from a hilly terrain. Needless to say that incident relates to a village of hilly terrain. 6) Now, we have to examine whether the deceased was murdered with common intention in the manner suggested by prosecution, by the accused / appellants Rajendra Singh, Man Singh, Chandan Singh and Sunder Nath, or he had suffered injuries otherwise regarding which the possibility has not been ruled out by the Medical Officer. 7) P.W. 2 Diwan Singh, brother of the deceased, who lodged first information report, is not an eyewitness. He has simply proved that he gave written report (Ext. A –2) to the Patti Patwari Mangal Khet. It is evident from the record that the first information 7 report is delayed one, as the incident is said to be that of 16.03.1992, and the report is lodged on 18.03.1992. Now, we have to examine whether the prosecution has explained delay in lodging the first information report, or not. P.W. 2 Diwan Singh has attempted to explain that he firstly went to the Patti Patwari of Padampur to lodge the report, and when advised to report the matter to Patti Patwari of Kuliyal Gaon, he lodged the same with Patti Patwari Mangal Khet. Had there been long distance between the two places, we would have accepted the explanation given for delay in lodging the first information report. But it has come in the statement of P.W. 5 Jaman Singh that the distance between Padampur and Kuliyal Gaon is of ten minutes walking distance on hills. In view of said fact, delay of two days in lodging the first information report, cannot be said to have been explained by the prosecution. That being so, we will have to examine the evidence of the eyewitnesses with more caution, as the first information report is not the prompt one. 8) P.W. 3 Jayanti Devi and P.W. 4 Jagannath Singh are the two eyewitnesses of the incident, who are husband and wife. Incident is said to have been taken place near their house, as such, they are the key witnesses. However, on carefully going through their statements, we find that the deposition made by these two witnesses before the trial court doesn’t appear to be reliable and trustworthy. There is no mention in their 8 statements as to why they did not report the matter to the Patwari of the area till 19th of March 1992 (for three days), when the inquest report was prepared by the Patwari after taking the dead body in his possession. Rather, statement of P.W. 2 Diwan Singh shows that he has admitted that after the incident Jagannath Singh (P.W. 4) remained absconding from his house for about a year. It is admitted by P.W. 3 Jayanti Devi in her examination-in-chief that the accused and deceased asked for glasses for taking liquor in their house. Though, she and her husband P.W. 4 Jagannath Singh state that the deceased and accused had brought liquor with them, but it is strange that the outsiders would come in their house with the liquor only to take it among themselves. It is consistently suggested by the defence counsel to the eyewitnesses that it was Jagannath Singh in whose house illicit liquor used to be made available. The presence of accused / appellants in their village might be natural, but the presence of Shiv Singh @ Shivraj Singh (deceased), P.W. 5 Jaman Singh and one Tika Ram (not examined), residents of village Padampur, as to why they had been in the house of Jagannath Singh is not explained by the prosecution. Considering all facts and circumstances, we do not find the testimony given by the three eyewitnesses, namely P.W. 3 Jayanti Devi, P.W. 4 Jagannath Singh and P.W. 5 Jaman Singh (who was resident of different village) reliable beyond reasonable doubt, that the accused / 9 appellants assaulted Shiv Singh @ Shivraj Singh in the manner suggested by them. 9) Even the date and time of death of Shiv Singh @ Shivraj Singh as suggested by prosecution appears to be doubtful for the reason that in the autopsy report (Ext. A –1) the Medical Officer has opined that on 20.03.1992 (i.e. four days after death) decomposition of the dead body had not started. It is strange that prosecution suggests the death of Shiv Singh @ Shivraj Singh on 16.03.1992, and autopsy is conducted on 20th March 1992, and even after four days, the Medical Officer reports decomposition of dead body had yet not started. In the present facts and circumstances of the case, where the dead body was lying in an open place in the month of March, the decomposition must have started within 48 hours of the death of the deceased. Not only this, autopsy report (Ext. A –1) shows that the autopsy was conducted on 20th March 1992, at 11:30 A.M., but P.W. 2 Diwan Singh, informant, says that after the dead body was sealed and taken for Lohaghat, it reached there (Logaghat) in the night of 20th of March 1992. That further creates doubt as to the condition of dead body mentioned in the autopsy report. 10) In the above circumstances, having gone through the entire evidence on record, we are of the view that prosecution has failed to prove charge against the accused / appellants beyond reasonable doubt that 10 with common intention they have committed murder of Shiv Singh @ Shivraj Singh on 16.03.1992. Therefore, the conviction recorded by the trial court against the accused / appellants is liable to be set aside. 11) Therefore, the appeal is allowed. The impugned judgment and order dated 6th of January 2000, passed by Sessions Judge, Pithoragarh, in Sessions Trial No. 29 of 1992, regarding conviction against appellants Rajendra Singh, Man Singh, Chandan Singh and Sundar Nath under Section 302 / 34 of I.P.C. is set aside. The sentence awarded against them also stands set aside. They are acquitted of the charge of offence punishable under Section 302 / 34 of I.P.C. They are on bail. They need not surrender. Their bail is cancelled and sureties are discharged. Lower court record be sent back to the trial court. (V.K. Bist, J.) (Prafulla C. Pant, J.) Dt. March 16, 2011. H. Negi