IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL GOVERNMENT APPEAL No.1464 of 2001 (Old No.1421 of 1994) The State …….….…. Appellant Versus 1. Mrityunjay Pandey S/o Sri Phool Chandra, R/o Ramayan Satsang Bhawan, Bhupatwala, Haridwar, Distt. Haridwar 2. Ram Vilas S/o Sri Nageshwar Dubey, R/o Dadu Bag, Kankhal, Distt. Haridwar …………… Respondents Dated: July 9, 2009 Sri M.A. Khan, Brief Holder for the State/appellant Sri R.P. Nautiyal, Advocate for the respondent No.1 Sri H.C. Pathak, Advocate for Respondent No.2 HON. DHARAM VEER, J. This appeal, preferred by the State/appellant u/s 378 of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 06.05.1994 passed by Assistant Sessions Judge, Haridwar in S.T. No.377 of 1986, State Vs. Mrityunjay Pandey and another, whereby the learned Assistant Sessions Judge has acquitted the respondents Mrityunjay Pandey and Ram Vilas for the offences punishable under Sections 452 and 307/34 of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) by giving benefit of doubt. 2. I have heard learned counsel for the parties and perused the entire material available on record. 3. In brief, the prosecution case is that P.W.5 Swami Raghwacharya lodged a report at P.S. Kotwali Haridwar with the averments stating therein that there was a dispute pending between him and Swami 2 Rangacharya about the property of Ashram and due to this enmity, respondents Mrityunjay Pandey and Rami Vilas came in the Ashram on 29.7.1985 at 4:30 A.M. and as soon as the complainant came out of the toilet at about 4:45 A.M. respondents-accused fired upon him. The fire of Ram Vilas Dwivedi hit on his chest and face while the bullet fired by respondent-accused Mrityunjay Pandey hit on the coal drum. This incident was witnessed by Swami Badrinath Tripathi (P.W.4), Mukta Nath Pandey (P.W.6) and Jia Lal. With the same averments, the FIR Ex.Ka-6 was lodged by P.W.5 Swami Raghvacharya on 29.7.1985 at 5:50 A.M. at P.S. Haridwar. On the basis of the FIR (Ex.Ka-6), Constable Clerk Harshyam Singh (P.W.1) prepared the Chik FIR, i.e. Ex.Ka-1. The entry was also made by him in the G.D., the copy of which is Ex.Ka.2. The investigation of this case was entrusted to S.I. R.K. Sharma (P.W.7), who during the course of investigation, taken the undershirt of the injured into possession and prepared a Fard, i.e. Ex.Ka-3. Injured Swami Raghvacharya was medically been examined by P.W.2 Dr. Hari Krishna Fuloria on 29.7.1985 at 6:30 A.M. and the medical report prepared is Ex.Ka-4. The I.O. also took in his possession a bullet from the place of occurrence and prepared a Fard, i.e. Ex.Ka-5. The I.O. also prepared the site plan of the place of occurrence, i.e. Ex.Ka-7. During investigation, the I.O. recorded the statements of witnesses and on completion of investigation, filed the charge sheet, i.e. Ex.Ka-8. 4. It appears that learned Munsif Magistrate, Haridwar has committed the case to the court of Sessions on 22.09.1986 after giving necessary copies to the respondents/accused as required under Section 207 Cr.P.C. 3 5. Learned Sessions Judge transferred the case to the court of Assistant Sessions Judge, Haridwar for disposal according to law. 6. On 27.02.1987, learned Assistant Sessions Judge, Roorkee framed the charges against the respondents/accused for the offences punishable under Sections 452 and 307/34 IPC. The charges were read over and explained to each of them, who pleaded not guilty and claimed to be tried. 7. To prove its case, the prosecution has examined P.W.1 Cosntable Harshyam Singh, who prepared the Chik FIR and made entry in G.D., P.W.2 Dr. Hari Krishna Fuloria, who medically examined the injured, P.W.3 Acharya Minishi, before whom Bullet was recovered, P.W.4 Swami Badrinarayan, said to be eyewitness, P.W.5 Swami Raghvacharya, complainant and injured, P.W.6 Mukta Nath Pandey, also said to be eyewitness of the case and P.W.7 S.I. Raj Kumar Sharma, I.O. of the case 8. Thereafter, the statements of the respondents/ accused were recorded u/s 313 of Cr.P.C. The oral and documentary evidence was put to each of them in question form, who denied the allegations made against each of them. However, they did not produce any oral or documentary evidence in defence. 9. After appreciating the evidence on record and after hearing learned counsel for the parties, the learned Assistant Sessions Judge, Haridwar vide judgment and order dated 06.05.1994 has acquitted the respondents- accused as discussed above. Feeling aggrieved by the aforesaid judgment and order, the State has come up in appeal. 4 10. Before further discussion, it is pertinent to mention that injured Swami Raghvacharya was medically been examined on 29.07.1985 at 6:30 A.M. by P.W.2 Dr. H.K. Fuloriya and his injury report was also prepared i.e. Ex.Ka.4. The injuries recorded are as under: - 1. Multiple small abraded gun shot wound of entry of the front of neck, front of chest and left side chest in an area of 21 cm x 16 cm, numbering 146 in numbers, varying in size from 0.1 x 0.1 cm to 0.2 x 0.2 cm, no blackening, tattooing present 2. Multiple (24 in numbers) small abraded gun shot wound of entry on front of left arm in an area of 24 cm x 8 cm, each measuring 0.1 cm x 0.1 cm, no blackening present 3. Multiple (21 in numbers) small abraded gun shot wound of entry on the face in an area of 19 cm x 14 cm each measuring 0.1 cm x 0.1 cm, no blackening and charring present with red eye right eye (red coloured area of 1 cm x 1 cm on right side of right eye present). Injuries are caused by gunshot. Injury no.1 and 2 are simple in nature. For injury no.3, patient is being referred to eye surgeon. X-ray chest and left arm advised. Duration fresh. 11. To prove the aforesaid injury report, the prosecution has examined P.W.2 Dr. H.K. Fuloria who has proved the injury report Ex.Ka-4 prepared by him. In cross-examination he stated that the gunshot wound found on the body of injured were of two different sizes. The wound of injury no.1 is different from that of wounds of injury nos.2 and 3. Tattooing was present on the corner 5 of injury no.1 while tattooing was not present on the injury nos.2 and 3. Injury no.1 was caused from the distance of about 6 feet while injury nos.2 and 3 were caused from the distance of about 12 feet. He further stated that he has not prepared any supplementary report. He further stated that in injury nos.1, 2 and 3, no pellet was found in the body of the injured. All the injuries were simple in nature. He further stated that all the wounds were contusions. 12. To further prove its case, the prosecution has examined P.W.1 Constable Harshyam Singh who stated that on 29.7.1985 he prepared the Chik FIR of the case on the basis of the report given by the complainant, i.e. Ex.Ka-1. On the same day he also made entry in the G.D., the copy of which is Ex.Ka-2. Undershirt of injured was taken into possession by the I.O. and Fard was prepared i.e. Ex.Ka-3. 13. P.W.3 is Acharya Minishi who has stated that a bullet 315 bore was recovered by the I.O. in his presence from the verandah near a Drum. The I.O. prepared a Fard for taking the same into possession, i.e. Ex.Ka-5. He also signed on that Fard. He also identified that Bullet as Ex.3 and the cloth in which it was sealed as Ex.4 and match box as Ex.5. In cross-examination he stated that he does not know about the difference between 303 Bore and 315 Bore. He further stated that he does not about the Bore of the weapons. He further stated that he could not say whether Ex.3 is a bullet or not. 14. P.W.4 is Swami Badri Narayan Acharya who has supported the version of the FIR in examination-in- chief. In cross-examination, he stated that he had enmity with the respondents since 1981 due to the property of Ashram. He further stated that this dispute started from 6 the Suit No.64/1980 which was filed by Swami Rangacharya in the court of Munsif Haridwar. He further stated that his residence is at Niwas Nursing Niketan and he is residing there with his family since 1968. The eviction suit against him from the residential accommodation in which he is living was filed by Swami Rangacharya. The said suit was filed in the year 1983 and the litigation is pending in the court of Civil Judge, Roorkee. 15. P.W.5 is Swami Raghvacharya who also in his examination-in-chief, has supported the version of the FIR. In cross-examination, he stated that he has a dispute about the property of Totadari Math Ramayan Satsang Bhawan with Swami Rangacharya since 1981. A case No.64 of 1980 was filed about the property of same Math and he was not a party in that case. He further stated that “esjs ikl mijksDr jkek;.k lRlax Hkou dk pktZ fnukad 28-2-1986 dks ftyk tt lgkjuiqj }kjk cukbZ desVh ds lnL;ksa ds vuqjks/k ls feyk FkkA fdlh vnkyr dk dksbZ vkns’k ugha FkkA fnukad 28-2-1986 ls igys jaxkpk;Z cgSfl;r lØsVjh bZapktZ FksA” he was given the charge of said Ramayan Satsang Bhawan on the recommendation of the Committee constituted by District Judge, Saharanpur on 28.2.1986. However, there was no order of court in that regard. Prior to 28.2.1986, Swami Rangacharya was the Secretary In- charge. He further stated that in the report, he has written that due to the old enmity of 10.10.1981 about the said incident, a case was pending in the Sessions Court and Badri Narayan had received the bullet injury. Injury was caused to Badri Nath due to the reason he was doing the Pairvi of Case No.64/1980. He further stated that Badri Nath is still doing Pairvi of the above-said case. 16. P.W.6 is Muktanath Pandey who too has corroborated the statement of P.W.5 Swami Raghvacharya made in his examination-in-chief. In cross-examination he 7 stated that he is the resident of Village Baijalpur, Dist. Basti where he does the agricultural work and he has agricultural land about 50-60 Bighas. Complainant Swami Raghvacharya was known to him since last 15 years. He acquainted with him (Swami Raghvacharya) at Ayodhya. His village is at a distance of about 60 Kms. from Ayodhya. The temple in which he is living, he used to visit in that temple. He further stated that at Haridwar, he has got no property or any business. He further stated that at Haridwar he had come to attend the dates of this case and except this he had come to Haridwar on the date when the incident had happened. He further stated that when he came at Haridwar first time on the date of incident, then he saw the respondents for the first time. 17. P.W.7 is S.I. Rajkumar Sharma, I.O. of the case, who stated that on 29.7.1985 he was posted as S.I. and the investigation of this case was entrusted to him. During investigation he prepared the site plan of the place of occurrence, i.e. Ex.Ka-7. He also recovered a bullet from the place of occurrence and prepared a Fard, i.e. Ex.Ka-5. After completing the investigation, he filed the charge sheet against the respondents-accused, i.e. Ex.Ka-8. In cross-examination he stated that he did not receive any pellet at the place of occurrence. He also did not see any pellet in the wall of verandah. He also did not receive any Tikli from the place of occurrence nor he saw any blood over there. He also denied of having seen any undershirt of the complainant. He also denied of having received any report which could prove that pellets were there in the body of complainant. He also did not receive any x-ray report in this regard from the hospital. He further stated that he had not seen any pellets in the body of complainant during investigation. (?kVukLFky ij eq>s dksbZ NjkZ ugha feykA cjkens dh nhokj esa Hkh dksbZ NjkZ ugha fn[kk;h fn;sA dkjrwl ds fVdyh ekSds ij 8 ugha feyhA ekSds ij eq>s dksbZ [kwu ugha fn[kyk;h fn;kA eSaus oknh dh cfu;ku Hkh ugha ns[khA vLirky ls eq>s dksbZ ,slh fjiksVZ izkIr ugh gqbZ ftles oknh ds 'kjhjh esa NjsZ gSA eq>s dksbZ x-ray fjiksVZ Hkh bl lEcU/k esa vLirky ls izkIr ugha gqbZA eSus oknh ds 'kjhj esa foospuk ds nkSjku NjsZ ugha ns[ks). 18. Thereafter, the statements of the respondents/ accused were recorded u/s 313 of Cr.P.C. The oral and documentary evidence was put to each of them in question form, who denied the allegations made against each of them. However, they did not produce any oral or documentary evidence in defence. Respondent-Ram Vilas has stated that he has falsely been implicated due to the reason that he is the brother of Swami Rangacharya who has a dispute about the Ashram property. Respondent- Mrityunjay Pandey has stated that he has been falsely implicated due to enmity. 19. Sri M.A. Khan, learned Brief Holder for the State that as per the evidence discussed above, the prosecution has proved its case against the respondents- accused beyond reasonable doubt. Per contra, Sri R.P. Nautiyal, learned counsel for respondent no.1 and Sri H.C. Pathak, learned counsel for respondent no.2, have stated that the prosecution could not prove its against the respondents-accused and the judgment of the trial court is correct and justified on the basis of the evidence discussed before it. I find substance in the arguments put forth by counsel for the respondents due to the following reasons: - A. That P.W.2 Dr. H.K. Fuloria has stated that the wound of injury no.1 is different from that of wounds of injury nos.2 and 3. He further stated that injury no.1 was caused from the distance of about 6 feet while injury nos.2 and 3 were caused from the distance of about 12 feet and all the 9 injuries were simple in nature. As per the opinion of P.W.2 Dr. H.K. Fuloria, the gunshot wounds found on the body of injured were of two different sizes, however as per the prosecution case only one fire i.e. of respondent Ram Vilas hit on the person of injured. Thus, a doubt is created in the prosecution case because the oral evidence does not get corroboration from the medical evidence. Even, the medical officer has stated that no pellet was found in the wounds of the injured and further all the injuries were just contusions. B. That as per the statement of injured P.W.5 Swami Raghvacharya, prior to 28.2.1986, Swami Rangacharya was in possession over the property of the Ashram. Hence, as per the own statement of the complainant, on the date of incident i.e. on 29.7.1985, Swami Rangacharya was the In-charge of the property of Ashram. Therefore, the incident is not possible to be happened in such a manner as stated by the prosecution because at that time, Swami Rangacharya was the In-charge of the property of Ashram. C. That the evidence of P.W.4 Swami Badrinarayan Acharya also does not inspire confidence due to the reason that against him the eviction suit was filed by Swami Rangacharya about his residential house. It shows that he was having enmity with the respondents as respondent-Ram Vilas is the brother of Swami Rangacharya and respondent Mrtiyunjay Pandey is the Pairokar of Swami Rangacharya. Due to the aforesaid reasons, P.W.4 Swami Badrinarayan is an interested and partisan witness and his presence on the date and time on the place of occurrence is doubtful and his presence is not reliable and believable. 10 D. The statement of P.W.6 Muktanath Pandey also does not inspire confidence due to the reason that he is the residence of Village Baijalpur, Distt. Basti which is about 700 kilometers distant from the place of occurrence. Even he has stated that for the first time he came at Haridwar on the date of incident and he has neither got any property nor any business at Haridwar. He further stated that he used to visit the temple at Ayodhya where the complainant Swami Raghvacharya is living. Due to the above reasons, the statement of this witness too is not reliable and believable and that does not inspire confidence. E. P.W.7 S.I. R.K. Sharma, I.O. of the case, has stated that he did not receive any pellet at the place of occurrence. He also did not see any pellet in the wall of verandah. He also did not receive any Tikli from the place of occurrence nor he saw any blood over there. He also denied of having seen any undershirt of the complainant. He also denied of having received any report which could prove that pellets were there in the body of complainant. He also did not receive any x-ray report in this regard from the hospital. He further stated that he had not seen any pellets in the body of complainant Swami Raghvacharya during investigation. The above-facts stated by the I.O. prove that the incident has not happened in such a manner as has been described by the prosecution. 20. Besides the above, it is settled law that where two views are possible and one of the views is possible which was taken by the trial court, then the appellate court shall not ordinar.ily interfere with the judgment of 11 acquittal. Reliance is placed on paras 7 and 8 of a judgment rendered by Hon’ble Supreme Court in the case of Kalyan Singh v. State of M.P. reported in (2007) 3 SCC (Cri.) 173, which read as under: - 7. The High Court while dealing with the matter, in our considered opinion, failed to apply the proper tests in deciding a case where a judgment of acquittal has been recorded. The views of the learned trial judge cannot be said to be wholly unsustainable. It is now well known that if two views are possible, the appellate court shall not ordinarily interfere with the judgment of acquittal. We do not, however, mean to lay down the law that the High Court, in a case where a judgment of acquittal is in question, would not go into the evidence brought on record by the prosecution or by the State but we would like to point out that even if the High Court reversed the judgment of acquittal recorded by the trial court, it is incumbent on the High Court to arrive at the conclusion that no two views are possible. 8. We, therefore, having regard to the fact situation of the instance case, are of the opinion that as two views are possible, the High Court should not have interfered with the judgment of acquittal passed by learned Sessions Judge. We, therefore, set aside the impugned judgment and allow this appeal. The appellant is in jail, he is directed to be released forthwith if not required in connection with any other case. 21. On the basis of the evidence discussed above, I am of the considered view that when one view is also possible which was taken by the trial court, then as per the aforesaid judgment of Kalyan Singh (Supra), the interference with the judgment of the trial court at this stage is not warranted. Therefore, there is no reason to disagree with the view taken by the trial court on the basis 12 of the evidence discussed above and, as such, the prosecution has not able to prove its case against the respondents/accused beyond reasonable doubt. 22. For the reasons as recorded above, I feel convinced that the trial court was correct and justified in acquitting the respondents-accused for the charge leveled against each of them. 23. Therefore, the appeal preferred by the State/ appellant is devoid of merits and is accordingly dismissed. The judgment and order dated 06.05.1994 passed by learned Assistant Sessions Judge, Haridwar in S.T. No.377/1986, State Vs. Mrityunjay Pandey & another, is accordingly confirmed. (Dharam Veer, J.) July 9, 2009 Rajeev Dang