RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No.289 of 2001 (Old No.810 of 1993) Khushal Singh & others …….….…. Appellants Versus The State …………… Respondent Dated: July 13, 2009 Sri U.P.S. Negi with Mr. L.K. Tewari, learned counsel for the appellants Sri M.A. Khan, learned brief holder for the State/respondent HON. DHARAM VEER, J. This appeal, preferred by the appellants’ u/s 374(2) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 07.05.1993 passed by Sessions Judge, Pauri Garhwal in S.T. No.11 of 1989, State Vs. Khushal Singh & two others, whereby the learned Sessions Judge has convicted the appellants/ accused Khushal Singh, Sawar Singh and Satendra Singh @ Pappu under Sections 304 Part-II r/w Section 34 and also u/s 323 r/w Section 34 of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.). All the appellants/accused were sentenced to seven years’ rigorous imprisonment u/s 304 Part-II r/w Section 34 IPC and further one year’s R.I. u/s 323 r/w Section 34 IPC. Both the sentences were directed to run concurrently. 2. Tehsildar Lansdowne (Garhwal) vide report dated 8.6.2003 on the basis of report of Pradhan Gram Sabha, Tehsil Lansdowne has informed that the 2 appellant/accused-Sawar Singh has died, hence the appeal filed by appellant/accused No.2-Sawar Singh stands abated. 3. I have heard learned counsel for the parties and perused the entire material available on record. 4. In brief, the prosecution case is that P.W.1 Jaman Singh Negi lodged an FIR on 17.10.1988 stating therein that on 18/19.10.1988, there was marriage of son of his brother Prem Singh and concerning the said marriage, Prem Singh and his two sons Chitra Singh (P.W.4) and Meharban Singh (P.W.3) had come to his house on the night of 17.10.1988. At about 10 p.m., they (Prem Singh and his sons) were returning to their house and as soon as they reached in front of the house of appellant/accused Khushal Singh, all of a sudden appellants/accused Khushal Singh, Sawar Singh (now deceased) and Pappu attacked upon them by using deadly weapons causing death of Prem Singh and also causing serious injuries to Chitra Singh and Meharban Singh. On hearing the hue and cry, when the complainant Jaman Singh and his son Chandra Mohan reached there to intervene, all the three appellants/accused also caused injuries to the son of complainant. It was further averted that this incident had happened due to enmity because Gabar Singh (younger brother of Khushal Singh) had illicit relations with wife of Meharban Singh (younger brother of complainant Jaman Singh). Further, due to this illicit relationship, a child was also born to the wife of Meharban Singh. Due to this enmity in the month of September, appellant/accused Sawar Singh also caused injuries to Chitra Singh. With the same averments, the FIR was got lodged on 17.10.1988 at 11:30 P.M. by P.W.1 Jaman Singh at Patwari Circle Bhawalsyun, i.e. Ex.Ka-1. The FIR 3 was initially been lodged with P.W.2 Dilwar Singh Rawat, Patti Patwari, Mawalsyun. Since the Patwaris were on strike on that date, therefore, the case was not registered on that date. After that on 18.10.1988, the investigation was entrusted to Naib Tehsildar. Then, on the basis of this FIR (Ex.Ka-1), P.W.6 Jai Singh Rana, Naib Tehsildar prepared the Chik FIR of the case, i.e. Ex.Ka-3. The entry was also made in the G.D., the copy of which is Ex.Ka-4. P.W.6 Jai Singh Rana, Naib Tehsildar was entrusted the investigation of the case. (In Rural Hilly Areas of State of Uttarakhand, the Patwaris and certain Revenue Officials are being vested with police powers vide U.P. Govt. Notification No.494/VIII-418-16 dated 7.3.1916). The inquest of dead body of deceased Prem Singh was prepared by the I.O./Naib Tehsildar on 19.10.1988, i.e. Ex.Ka-5. Along with the inquest report, other documents viz. sketch of dead body (Ex.Ka.6) and letter sent to CMO, Pauri Garhwal for conducting the post-mortem (Ex.Ka.7) were also prepared. The post-mortem of dead body of Prem Singh was conducted on 19.10.1988 at 3:00 P.M. by P.W.5 Dr. Rajiv Hatwal, post-mortem report is Ex.Ka.2. The I.O. also taken in his possession the plain clay as well as blood stained clay from the place of occurrence and prepared a Fard, i.e. Ex.Ka-8, He also prepared the site plan of the place of occurrence i.e. Ex.Ka-9. The I.O. also prepared a Fard for recovering a Lathi from the house of appellant/accused Sawar Singh and prepared Fard i.e. Ex.Ka-10. The I.O. also recovered a sickle (Daranti) from the house of appellant/accused Khushal Singh and prepared Fard i.e. Ex.Ka.11. The I.O. also took in his possession the blood stained clothes of appellants/accused Khushal Singh, Sawar Singh (now deceased) and Satendra Singh and prepared Fards i.e. Ex.Kas-12, Ka-13 and Ka-14 respectively. The I.O. also sent the articles viz. clay of the 4 place of occurrence, sickle, Lathi as well as the clothes of the appellants/accused and that of deceased Prem Singh for the chemical examination and the report sent by Scientific Officer, Scientific Laboratory, Agra is Ex.Ka-16. The Scientific Officer opined that in all the articles and clothes, human blood was found. During investigation, the I.O. recorded the statements of witnesses and after completing the investigation, he filed the charge sheet against the appellants/accused in the court, i.e. Ex.Ka-15. 5. Learned Munsif Magistrate, Lansdowne-Pauri Garhwal committed the case to the court of Sessions on 22.02.1989 after giving necessary copies to the appellants/accused as provided under Section 207 Cr.P.C. 6. On 24.07.1989, learned Sessions Judge, Pauri Garhwal framed the charges against the appellants/ accused under Sections 302 r/w Section 34 IPC and also u/s 307 r/w Section 34 IPC. The charges were read over and explained to the appellants/accused, who pleaded not guilty and claimed to be tried. 7. To prove its case, the prosecution has examined P.W.1 Jaman Singh, complainant of the case, P.W.2 Dilber Singh, Patti Patwari Bhawalsyun, P.W.3 Meharban Singh, brother of complainant, P.W.4 Chitra Singh, eyewitness, P.W.5 Dr. Rajiv Hatwal, who conducted the autopsy on the dead body and P.W.6 Naib Tehsildar Jai Singh Rana who conducted the investigation. 8. Thereafter, the statements of the appellants/ 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 5 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 Sessions Judge, Pauri Garhwal vide judgment and order dated 7.05.1993 convicted and sentenced the appellants/accused as mentioned above. Feeling aggrieved by the aforesaid judgment and order, the present appeal has been preferred. 10. Before further discussion, it is pertinent to mention the ante-mortem injuries found on the dead body of deceased Prem Singh by P.W.5 Dr. Rajiv Hatwal. The post-mortem of the dead body was conducted on 19.10.1988 at 3 p.m. and the following ante-mortem injuries were found: - 1. Incised wound 5 cm x 1/2 cm x bone deep right side of the scalp, oblique in direction 10 cm from right ear 2. Incised wound 3 cm x 1/2 cm x bone deep parallel to Injury No.1 3. Incised wound 4 cm x 1/2 cm x bone deep, oblique, 5 cm from right ear 4. Incised wound 5 cm x 1 cm x muscle deep below the left eye 5. Incised wound 9 cm x 2 cm x muscle deep, obliquely placed left side of the face 6. Incised wound 5 cm x 2 cm x bone deep, just below the lower lip 6 7. Incised wound 3 cm x 1 cm x 1 cm deep left side of the back of the chest on the lower costal margin 8. Incised wound 3 cm x 3 cm x 1 cm between the left thumb of left index finger 11. To prove the post-mortem report, the prosecution has examined P.W.5 Dr. Rajiv Hatwal who has proved the post-mortem report Ex.Ka-2 prepared by him. He has opined that the cause of death was due to shock and hemorrhage due to ante-mortem injuries received by the deceased. He further opined that the injuries could be caused by sickle (daranti) or Gandasa at 10 p.m. on 17.10.1988. 12. To further prove its case, the prosecution has examined P.W.1 Jaman Singh, complainant of the case, who has reiterated the entire story as has been narrated in the FIR. He also proved the FIR i.e. Ex.Ka-1. However, he has stated that he had not seen the incident because when he reached at the place of occurrence, the Marpit came to an end. 13. P.W.2 is Dilbar Singh Rawat, Patti Patwari, who has stated that in October, 1988 he was posted as Patwari. He received the repot Ex.Ka-1 at 10 p.m. at his Chowki and then he went on the spot. On that date, the Patwaris were on strike, therefore, he did not register the case. On 18.10.1988 at 2 A.M., SDM, Naib Tehsildar, Dy. S.P. and S.O. Pauri reached on the spot and then he gave the report Ex.Ka-1 to Naib Tehsildar. He also stated that the FIR remained with him from the night of 17th till the night of 18th. The investigation of this case was conducted by Jai Singh Rana, Naib Tehsildar. 7 14. P.W.3 is Meharban Singh S/o deceased Prem Singh, whose statement was not believed by the trial court. Hence there is no relevance to reproduce his statement. 15. P.W.4 is Chitra Singh who has stated that on 17.10.1988 at about 9 p.m. he along with his brother Meharban Singh and father Jaman Singh were sitting in his uncle’s house. At that time, appellant/accused Khushal Singh, being armed with a dagger, was abusing his (Chitra Singh’s) family members. Then Chandra Mohan went down and when he came back, he informed that the appellant/ accused Khushal Singh was having a dagger by which he also caused injuries to Chandra Mohan in his hand. At about 11 p.m. in the night he along with Meharban Singh, his father Prem Singh came from the house of Jaman Singh. While they were going in front of house of appellant /accused Khushal Singh then appellant/accused Sawar Singh (now deceased) came and caused injury to him with a Gandasa and also pushed him down from the common pathway. Appellant/accused Khushal Singh was accompanied by appellants/accused Satendra Singh and Sawar Singh. He further stated that due to the injuries he fell down and became unconscious. He came into his senses in the house of Jaman Singh. He further stated that the appellant/accused was armed with a dagger and appellant/accused Satendra was having a Lathi in his hand. After coming into senses, he also saw his brother Meharban Singh lying in a cot being injured. He also stated that his father Prem Singh died in this incident. In cross-examination he stated that appellant/accused Sawar Singh fell down after him, however he could not say that how appellant/accused Sawar Singh fell down. He further stated that he could not say how Prem Singh and 8 Meharban Singh (P.W.3) had received the injuries. He further stated that he did not give the statement to Patwari that appellant/accused Khushal Singh was armed with a sickle. He further stated that he came into his senses in the morning of 18.10.1988 in the house of Jaman Singh. He further stated that Jaman Singh and Chandra Mohan had not seen any incident and they came later on. He further stated that at the time of incident, it was dark in the night and the visibility was very low. 16. P.W.6 is Naib Tehsildar Jai Singh Rana who stated that on 18.10.1988 he received the report Ex.Ka-1 on the basis of which he prepared the Chik FIR i.e. Ex.Ka.3 and also made entry in the G.D., copy of which is Ex.Ka-4. He went on the place of occurrence and prepared the necessary documents viz. inquest report Ex.Ka-5, sketch of dead body Ex.Ka-6 and letter to CMO Ex.Ka-7. He also took in his possession the plain clay and blood stained clay from the place of occurrence and prepared Fard, i.e. Ex.Ka-8. He also prepared the site plan of place of occurrence i.e. Ex.Ka-9. He also searched the house of the accused and recovered a Lathi and a sickle and prepared separate Fards which are Ex.Ka-10 and Ka-11 respectively. He also took in his possession the blood stained clothes of all the appellants/accused and prepared Fards which are Ex.Ka-12, Ka-13 and Ka-14 respectively. During investigation he recorded the statements of witnesses and after completion of investigation, he filed the charge sheet, i.e. Ex.Ka-15. In cross-examination he also stated that in the Fard of arrest of appellants/ accused, the injuries sustained by them have been mentioned, those Fards are Ex.Kha-1, Kha-2 and Kha-3 respectively. 9 17. Thereafter, the statements of the appellants/ 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. 18. Sri U.P.S. Negi, learned counsel for the appellants/accused argued that as per the evidence discussed above, the case against the appellants/accused is not proved by the prosecution. He further submitted that as per the above-said evidence, the only evidence against the appellants-accused is the evidence of P.W.4 Chitra Singh which is not reliable and believable and that also does not inspire confidence. 19. I find force in the argument put forth by counsel for the appellants/accused. From the evidence as discussed above, it is proved that P.W.1 Jaman Singh and P.W.3 Meharban Singh are not the eyewitnesses of the incident. Even the statement of P.W.3 Meharban Singh was not believed by the trial court. P.W.1 Jaman Singh has stated that he had not seen the incident because when he reached at the place of occurrence, the Marpit came to an end. Accordingly, the statement of P.W.1 Jaman Singh was not believed by the trial court. So far as the statement of P.W.4 Chitra Singh is concerned, his statement as a whole was not believed by the trial court because some contradictions were also found in his statement. However, the trial court proceeded to pass the conviction and sentence against the appellants/accused only on the basis of imagination. The evidence of P.W.4 Chitra Singh does not inspire any confidence for the following reasons: - 10 A. P.W.4 Chitra Singh has stated that the injuries were caused to him by appellant/accused Sawar Singh with Gandasa but there is no injury report of Chitra Singh on record which could have strengthen the averment made by him. Even he was not medically been examined which goes to create a doubt about his presence on the date and time on the place of occurrence. B. P.W.4 Chitra Singh has stated that his brother Meharban Singh also received injuries in this incident, however he too was not medically been examined which also goes to create a doubt about his presence on the date and time of occurrence. C. P.W.4 Chitra Singh has stated that the independent witnesses Balam and Pancham Singh had also come on the place of occurrence, however they were not produced by the prosecution. Even they were not shown as witnesses in the charge sheet, which further creates a doubt in the prosecution story as well as about the presence of this witness on the place of occurrence. D. P.W.4 Chitra Singh has stated that due to falling down, he became unconscious and he came into his senses on 18.10.1988 in the house of Jaman Singh (P.W.1). This fact further proves that he had not seen the incident. E. Chitra Singh further stated in his cross- examination that he could not see how Prem Singh and Meharban Singh had received the injuries which also proves that he has not seen that who 11 caused injuries to Prem Singh and Meharban Singh. F. Chitra Singh further stated that Jaman Singh and Chandra Mohan had not seen any incident and they came later on. He further stated that on the date of incident, the night was dark and only from a very short distance, the incident could be seen. This fact also creates a doubt in the prosecution story as there was no source of light. 20. Thus, according to the above-said discussion, a reasonable doubt is thrown in the prosecution story. As such, it is clear that the evidence of P.W.4 Chitra Singh is not reliable and believable evidence and his evidence does not inspire confidence due to the reasons mentioned above. It is settled law that it is permissible for a court to record and sustain a conviction on the evidence of a solitary eyewitness. But, at the same time, such a course can be adopted only if the evidence tendered by such witness is cogent, reliable and in tune with probabilities and inspires implicit confidence. My view also stands fortified with a judgment rendered by Hon’ble Apex Court reported in 2003 (1) Supreme Court Cases, 465 “Joseph Vs. State of Kerala”. Para 13 of this judgment is relevant to mention here which is reproduced as under:- “13. To our mind, it appears that the High Court did not follow the aforesaid standard but went on to analyse evidence as if the material before them was given for the first time and not in appeal. Section 134 of the Indian Evidence Act provides that no particular number of witnesses shall in any case be required for the proof of any fact and, therefore, it is permissible for a court to record and sustain a conviction on the evidence of a solitary eyewitness. But, at the same time, such a course can be adopted only if the evidence tendered by such witness is cogent, reliable and in tune with probabilities and inspires implicit confidence. By this standard, when the prosecution case rests mainly on 12 the sole testimony of an eyewitness, it should be wholly reliable. Even though such witness is an injured witness and his presence may not be seriously doubted, when his evidence is in conflict with other evidence, the view taken by the trial court that it would be unsafe to convict the accused on his sole testimony cannot be stated to be unreasonable.” 21. Besides the above, it is further pertinent to mention here that the I.O. after arresting the appellants /accused Sawar Singh, Khushal Singh and Pappu @ Satendra Singh, prepared Fards of arrest which are Ex.Kha-1, Kha-2 and Kha-3 respectively. In all those Fards, the injuries sustained by the appellants/accused have been mentioned, however the injuries of accused were not explained by the prosecution and even not a single word has been uttered by the prosecution witnesses about those injuries. It is well settled law that non- explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the inference that “(1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; (2) that the witnesses who have not explained the injuries on the person of accused are lying on the most material point and therefore their evidence is unreliable; and (3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case”. Thus, from the above-said evidence, it is proved that the appellants/accused Sawar Singh (now deceased), Khushal Singh and Satendra Singh also sustained injuries in the above-said incident. Even in the statements of prosecution witnesses, not a single word has been uttered by the prosecution witnesses about the injuries sustained by the 13 appellants/accused which further creates a reasonable doubt in the prosecution case. 22. Thus, from the evidence discussed above and as per the arguments advanced by learned counsel for the appellants and also in view of the judgment of Hon’ble Supreme Court quoted above, the prosecution has failed to prove its case against the appellants/accused beyond reasonable doubt and I do not concur the view taken by the trial court in convicting and sentencing the appellants/ accused as discussed above. Therefore, the appellants are liable to be acquitted by giving benefit of doubt. 23. Consequently, the appeal stands allowed. The judgment and order dated 07.05.1993 passed by Sessions Judge, Pauri Garhwal in S.T. No.11/1989, State Vs. Khushal Singh & two others, convicting and sentencing the appellants/accused as discussed above, is hereby set aside. The appellants are on bail. They need not surrender. Their bail bonds are cancelled and sureties are discharged. 24. Pertinent to mention here that Tehsildar Lansdowne (Garhwal) vide report dated 8.6.2003 has submitted that the appellant/accused-Sawar Singh has died, hence the appeal filed by appellant/accused No.2- Sawar Singh stands abated. (Dharam Veer, J.) July 13, 2009 Rajeev Dang