IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Government Appeal No. 1600 of 2001 (Old No. 2929 of 2000) State of U.P. (Now State of Uttarakhand) …Appellant Versus 1. Veerbal Singh Rawal S/o Harnam Singh R/o Mohalla Wakuran near Devi Mandir, Qasba and P.S. Dadari, district Ghaziabad, presently R/oRam Aushdhalaya, Chowk Kankhal. 2. Ashok Kumar Sharma S/o Moti Ram Sharma R/o Mohalla Devtan Qasba, P.s. Jwalapur, Haridwar 3. Sushil Chauhan S/o Isam Singh R/o Village Kholari, district Haridwar …Respondents Present: Mr. B.S. Parihar, brief holder present for the State/appellant. Mr. G.K. Verma, Advocate, amicus curiae present for accused respondent no. 1. Mr. Bhuvnesh Joshi, Advocate and Ms. Anjali Nauliyal, Advocate holding brief of Mr. Vivek Shukla present for accused respondent no. 2. Mr. Manish Arora, Advocate and Mr. Divakar Chamoli Advocate present for accused respondent no. 3. Coram: Hon’ble Prafulla C. Pant, J. Hon’ble Nirmal Yadav, J. Oral: Prafulla C. Pant, J. This appeal preferred under Section 378 of Code of Criminal Procedure, 1973 is directed against judgment and order dated 22.07.2000 passed by Ist Additional Sessions Judge, Haridwar, in Sessions Trial No. 259 of 1995 whereby said court has acquitted accused respondents, Veerbal Singh Rawal, Ashok Kumar Sharma and Sushil Chauhan from the charge of offences punishable under Section 302/34 and 120-B of the Indian Penal Code, 1860 (for short IPC). 2 2. Heard learned counsel for the parties and perused the lower court record. 3. Prosecution story, in brief, is that on 29.05.1993, at about 1:00 p.m. near Karnataka Dharmshala (within the limits of Police Station Kotwali, Haridwar) Sanat Kumar Sharma, a social worker, was driving his car bearing registration no. UGY-4488. PW-2 Sardar Daljeet Singh was sitting with him in said vehicle. Suddenly two persons in a scooter of make Bajaj came close to the car in which two persons were sitting. One of them, who was sitting as pillion rider came close to Sanat Kumar Sharma fired shots from a firearm weapon. Ashwani Kumar Sharma (PW-1), the complainant, lodged the first information report (Exihibit-A1) at Police Station Kotwali, Haridwar, on 29.05.1993. On the basis of report (Exihibit-A1) crime no. 704 of 1993 was registered at police station Kotwali, Haridwar against two unknown persons relating to offence punishable under Section 302 IPC. The investigation was taken up by PW-14 Shiv Mant Singh, the then Inspector at the police station. Immediately after the first information report was registered, he proceeded for inspection to the place of incident and prepared site plan (Exhibit A-15). He directed Sub Inspector Bhan Singh to prepare inquest report. PW-13 Sub Inspector Bhan Singh, on 29.05.1993 at about 14-15 p.m. took the dead boy of Sanat Kumar Sharma in his possession and prepared inquest report (Exhibit A8). He also got prepared sketch of dead body (Exhibit A9), 3 police form number 13 (Exhibit A10), sample seal (Exhibit A11) and letter to Chief Medical Officer (Exhibit A12). Meanwhile the Investigating Officer took the bloodstained concrete and simple concrete from the spot and prepared memorandum (Exhibit A13). The dead body was sent in a sealed condition for postmortem examination. PW-11 Dr. K.P. Sarabhai on the very day (on 29.05.1993) at about 4:50 p.m. conducted postmortem examination on the dead body of Sanat Kumar Sharma. He found firearm wound of entry as ante mortem injury, which he recorded in the autopsy report (Exhibit A6). The medical officer opined that the cause of death of the deceased was on account of haemorrhage and shock due to ante mortem injury. The Investigating Officer, after interrogating the witnesses, arrested accused Veerbal Singh Rawal, Ashok Kumar Sharma and Sushil Chauhan. Further investigation was taken over by PW-15 Inspector Surendra Bahadur Singh. Meanwhile a Test Identification Parade was held on 31.07.1993 after the arrest of Veerbal Singh and Ashok Kumar Sharma, who were put to identification parade. However (PW-2) Sardar Daljeet Singh, who was sitting with the deceased in the car, could not identify any of the two arrested accused. Test identification memorandum (Exhibit A13) was prepared by the Magistrate concerned before whom test identification parade was conducted. However, the Investigating Officer did recover scooter said to have been used in the crime on pointing out of accused Veerbal Singh. Believing that the deceased had been 4 murdered after the conspiracy hatched by the accused- respondents, chargesheet (Exhibit A17) was filed by the Investigating Officer against four persons, namely, Veerbal Singh, Nanak Chand Sharma (since died), Ashok Kumar Sharma and Sushil Chauhan. 4. The Chief Judicial Magistrate, on receipt of the chargesheet, after giving necessary copies to the accused, appears to have committed the case to the court of sessions for trial. The learned Additional Sessions Judge, Hardiwar, on 12.09.1996 after hearing the parties, framed charge of offences punishable under Section 302 read with Section 34 IPC and in respect of offence punishable under Section 120-B IPC against accused respondent Ashok Kumar Sharma. A separate charge was framed against accused respondent Veerbal Singh and accused respondent Sushil Chauhan in respect of same offences punishable under Section 302/34 and 120-B IPC, on 20.07.1996. All the three accused pleaded not guilty and claimed to be tried. On this prosecution got examined PW-1 Ashwani Kumar Sharma (complainant), PW-2 Sardar Daljeet Singh (eyewitness declared hostile), PW-3 Dr. Bharat Tiwari (declared hostile), PW-4 Suresh Chandra Sharma (eyewitness declared hostile), PW-5 Avdhesh Kumar Sharma, who also did not support the prosecution story, PW-6 Shiv Vansh Tiwari (declared hostile), PW-7 Naresh Kumar (declared hostile), PW-8 Preetam Lal (declared hostile), PW-9 Praveen, who supported the prosecution case against accused respondent Ashok 5 Kumar Sharma (declared hostile as he did not identify the assailant), PW-10 Rajendra Kumar Sharma formal witness of arrest and recovery, PW11 Dr. K.P. Sarabhai, who conducted the postmortem examination, PW-12 Sakeshwar (who also did not support the prosecution case), PW-13 Sub Inspector Bhan Singh, who prepared inquest report, PW-14 Shiv Mant Singh, who started investigation and PW-15 Inspector Surendra Bahadur Singh, who completed the investigation. Oral and documentary evidence was put to the accused, in reply to which they pleaded that they have been falsely implicated, and evidence adduced against them is false. However, no evidence in defence was adduced. 5. The trial court after hearing the parties found that prosecution has failed to prove charge of offences punishable under Section 302/34 IPC and 120-B IPC against any of the accused, and acquitted them of the charge. Aggrieved by said judgment and order dated 22.07.2000 passed by Ist Additional Sessions Judge, Haridwar in Sessions Trial No. 259 of 1995, this appeal was filed by the State before Allahabad High Court on 20.10.2000. The appeal is received by this Court under Section 35 of U.P. Reorganization Act 2000 (Central Act 29 of 2000) for its disposal. 6. Before further discussion, we think it just and proper to mention the ante mortem injury suffered by deceased (Sanat Kumar Sharma) recorded by PW-11 Dr. K.P. Sarabhai at the time of postmortem examination 6 on 29.05.1993. The ante mortem injury recorded in autopsy report (Exhibit A6) is being reproduced below: - “Firearm wound of entry in an area of .7 c.m. x .7 c.m. x cavity deep in front of the tragus of right ear. Tattooing and scorching present, margins inverted.” On internal examination, the medical officer found fracture in the parietal region of the skull. Cause of death according to medical officer was haemorrhage and shock due to ante mortem injury. From evidence of PW-11 Dr. K.P. Sarabhai read with the autopsy report, it is established that the deceased had died a homicidal death. Now this Court has to see whether the trial court has rightly found charge against the accused not proved, or not. 7. PW-1 Ashwani Kumar Sharma is complainant, and is not an eyewitness. He has simply stated that his brother Sanat Kumar Sharma was fired at by some miscreants near Karnataka Dharmshala while he was driving car bearing no. UGY-4488NE. He has not named any of the accused/ respondents. 8. PW-2 Sardar Daljeet Singh, who is said to have been travelling with the deceased in the car, states that he could not see the face of the miscreants. The witness was got declared hostile by the prosecution. As such, this witness does not thrown any light as to the 7 involvement of the accused respondents, Veerbal Singh, Ashok Kumar Sharma or Sushil Chauhan, in the crime. 9. PW-3 Dr. Bharat Tiwari was also declared hostile, as he too did not support the prosecution story as against the accused respondents. 10. PW-4 Suresh Chandra Sharma states that he did not see who fired at Sanat Kumar Sharma. He further states that he was not present at the place of incident nor did he meet Praveen Kumar (PW-9). As such, this witness also did not support the prosecution case and got declared hostile. 11. PW-5 Avdhesh Kumar Sharma has stated that on 29.05.1993 his brother Sanat Kumar Sharma was killed by unknown miscreants who fired shot at him. He further says that he does not know anything more than this about the incident. He did say that names of Ashok Kumar Sharma (respondent no. 2) Ghanshyam Bhagat and Nanak Chand were in the air and he believes that they were the persons responsible for murder of his brother. 12. PW-6 Shiv Vansh Tiwari did not support the prosecution story and was declared hostile. 13. PW-7 Naresh Kumar also did not support the prosecution story and was declared hostile. 8 14. PW-8 Preetam Lal states that he does not know accused Ashok Kumar Sharma and Sushil Chauhan, who were present in the court. He further states that no conspiracy was hatched in his presence by these persons. The witness was got declared hostile. 15. PW-9 Praveen Kumar did support the prosecution story as against Ashok Kumar Sharma to the extent that he was driving the scooter at the time of the incident. He further states that he did not know name of the pillion rider who fired shot. This witness has specifically named Ashok Kumar Sharma. (That is the only evidence as against accused Ashok Kumar Sharma on the record). But his statement does not get corroboration from Suresh Chandra Sharma (PW-4) regarding whom he states that he was present with him at the time of the incident. 16. Apart from this, PW-2 Sardar Daljeet Singh, who was sitting in the car with the deceased, also could not identify Ashok Kumar Sharma in the test identification parade. In the circumstances, having reassessed the evidence on record, we are of the view that the impugned judgment passed by the trial court cannot be said to be perverse or are not based on evidence on record or based on misreading of evidence. It is settled principle of law where two views are possible on the basis of evidence on record, and the trial court has accepted the one, it is not desirable to reverse 9 the findings recorded by the trial court unless the same is perverse or against the evidence on record. 17. For the reasons as discussed above, we find no force in the appeal, which is liable to be dismissed. Accordingly, the appeal is dismissed. The lower court record be sent back. (Nirmal Yadav, J.) (Prafulla C. Pant, J.) VKG 05.10.2010