HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.536 OF 2001 (OLD NO.165 OF 1992) 1. Vinesh S/o Asha Ram, 2. Asha Ram S/o Badal Ram, Both resident of 40/3, Amod Kunj, University Roorkee. Haridwar. ……… Appellants Versus State ……… Respondent Sri Tapan Singh, learned counsel for the appellants. Sri M.A. Khan, learned Brief Holder for the State. Dated: September 17 , 2008 HON. DHARAM VEER, J. This appeal preferred, under section 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 16.01.1992 passed by Additional Sessions Judge, Roorkee in Sessions Trial 289 of 1988 State v s. Vinesh and three others, whereby the learned Additional Sessions Judge has convicted the appellant-accused Vinesh u/s 307 of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced him to undergo 8 year’s R.I. and the appellant/accused Asha Ram was convicted u/s 323 I.P.C. and sentenced him to pay fine of Rs. 1,000/- and in default of payment of fine within 15 days, 2 months’ imprisonment was awarded to him. It was also directed that out of the fine recovered from the accused/appellant Asha Ram a sum of Rs. 800/- would be paid to the injured Kunwar Singh. The co-accused persons Nand Kishore and Rajendra were acquitted by the trial court from the charge levelled against them. 2. The Chief Judicial Magistrate, Haridwar vide report dated 19.04.2004 has reported that the accused/appellant Asha Ram 2 has died on 10.12.2003 and on the basis of this report the appeal preferred by the accused/appellant Asha Ram stood abated by the orders of this Court on 05.08.2004. 3. I have heard Sri Tapan Singh, learned counsel for the appellant and Sri M.A. Khan, learned Brief Holder for the State and perused the entire material available on the record. 4. In brief the prosecution case is that on 07.11.1986 at about 8:00 p.m. at Mohalla Amod Kunj, University Roorkee when the complainant Ram Singh was installing electric wire to lit a bulb at his house from the house of his neighbour Kalyan Singh to his house then the accused/appellant Vinesh armed with TAMANCHA, Asha Ram armed with iron rod (SARIA), Nand Kishore and Rajendra Singh armed with LATHIES had came at the house of the accused/appellant Asha Ram and told Ram Singh not to take electric wire in front of their house. When Kunwar Singh (PW-2) came to intervene, then the accused/appellant Vinesh had fired on him with a TAMANCHA of 12 bore, due to which he received gunshot injuries at his left thigh. The accused/appellant Asha Ram wielded iron rod and the co-accused Nand Kishore and Rajendra wielded LATHIES. The complainant Ram Singh made noise and on hearing the noise when his wife Pramila and brother Chaman and other people of the locality have reached at the place of occurrence, then the accused-assailants have also caused injuries to his wife Pramila and brother Chaman. With the same averments, the complainant Ram Singh had lodged a First Information Report at the Police Station Roorkee on 07.11.1986 at 10:00 p.m. orally. The Head Moharir Ramesh Chandra Sharma (PW-6) has prepared the Chik First Information Report i.e. Ext. Ka-1. An entry was made in the G.D. by the Head Moharir Ramesh Chandra Sharma (PW-6) a copy of the G.D. is Ext. Ka-5. The injured Kunwar Singh was medically examined by PW-5 Dr. Harish Chandra Dua-Medical Officer on 08.11.1986 at 2:30 a.m. 3 who was brought to the hospital by the complainant Ram Singh that injury report is Ext. Ka-2. The injured Chaman Lal was also medically examined by PW-5 Dr. Harish Chandra Dua-Medical Officer on 08.11.1986 at 2:00 a.m. that injury report is Ext. Ka- 3. The injured Pramila was also medically examined by PW-5 Dr. Harish Chandra Dua-Medical Officer on 07.11.1986 at 10:00 p.m. that injury report is Ext. Ka-4. Investigating of this case was entrusted to S.S.I Dale Ram Bhukesh. The accused/ appellant Vinesh was also medically examined by PW-5 Dr. Harish Chandra Dua-Medical Officer on 07.11.1986 at 11:45 p.m. who was brought to the hospital by Constable 172 Raj Kumar and Constable 1524 Narendra Singh of Police Station Roorkee. The accused Asha Ram was also medically examined by PW-5 Dr. Harish Chandra Dua-Medical Officer on 08.11.1986 at 12:05 a.m. who was also brought in the hospital by Constable 172 Raj Kumar and Constable 1524 Narendra Singh of Police Station Roorkee. The injury report of the accused/appellant Vinesh is Ext. Kha-1 and the injury report of the accused/appellant Asha Ram is Ext. Kha-2. During the course of investigation, the Investigating Officer has inspected the place of occurrence and prepared the site-plan of the place of occurrence i.e. Ext. Ka-7. He has also taken the bloodstained clay and the plain clay from the place of occurrence and prepared a FARD i.e. Ext. Ka- 8. The I.O. has also recovered a KHOKHA from the place of occurrence and a FARD was prepared, that FARD is Ext. Ka- 9. The I.O. recorded the statement of the witnesses and after completing the investigation, he filed charge sheet against the accused/ appellant and against the co-accused persons u/s 307 and 323 I.P.C. that charge sheet is Ext. Ka- 6. 5. The Judicial Magistrate, Roorkee committed the case to the Court of Sessions on 09.05.1988 after giving the necessary copies to the accused/appellant as required u/s 207 Cr.P.C . 4 6. Learned Sessions Judge, transferred the trial to the court of Additional Sessions Judge, Roorkee for its hearing and disposal according to law. 7. Learned Additional Sessions Judge, Roorkee on 15.11.1988 framed the charge u/s 307, 323 read with Section 34 I.P.C. against the accused/appellant Vinesh. The charge was read over and explained to the appellant-accused, who pleaded not guilty and claimed to be tried. Another charge was framed against the accused/appellant Asha Ram and the co-accused persons Nand Kishore and Rajendra on 15.11.1988 u/s 307 read with Section 34 and 323 read with Section 34 I.P.C. The charge was read over and explained to the accused persons, who pleaded not guilty and claimed to be tried. 8. To prove its case, the prosecution has examined P.W.1 Ram Singh-complainant of the case, PW-2 Kunwar Singh- injured eyewitness, PW-3 Pramila-injured eyewitness, PW-4 Chaman Lal-injured eyewitness, PW-5 Dr. Harish Chandra Dua, Medical Officer who has medically examined the injured persons, PW-6 Ramesh Chandra Sharma-Head Moharir who has prepared the Chik First Information Report and made necessary entries in the G.D., PW-7 Rajendra Singh-declared hostile and PW-8 Kalyan Singh-declared hostile. 9. After that the statements of the accused/appellants and the co-accused were recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to them in question form, who denied the allegations made against them and stated that they have been falsely implicated in the crime. 10. After appreciating the entire material available on record and after hearing the learned counsel for the parties, the learned Additional Sessions Judge, Roorkee, vide his judgment 5 and order dated 16.01.1992 has convicted and sentenced the accused/appellants as discussed above. Feeling aggrieved with the said judgment and order dated 16.01.1992, the accused- appellants have preferred the present appeal. 11. Before further discussions, it is pertinent to mention the injuries (A) found to the complainant’s side as well as the injuries (B) found to the accused side. The description is as below:- (A) The injuries found on the body of the Kunwar Singh (PW- 2) on 08.11.1986 at 2:30 a.m., which was recorded as injury report Ext. Ka- 2 prepared by PW-5 Dr. Harish Chandra Dua, is reproduced as under:- i. Multiple gun shot wounds in area 25cm. x 25cm. measuring 0.5cm. x 0.3 cm. to 0.3 cm. x 0.3cm., skin to muscle deep over medial aspect of left thigh in the middle 1/3. Blackening present. Bleeding present. All are wounds of entry. Advised X-Ray; ii. Gun shot lacerated wound 4cm. x 2½cm. x muscle deep in the middle part of injury no.1 on its medial border. Blackening present. Bleeding present. Wound of entry. Advised X-Ray; The injuries found on the body of the Chaman Lal (PW-4) on 08.11.1986 at 2:00 a.m., which was recorded as injury report Ext. Ka- 3 prepared by PW-5 Dr. Harish Chandra Dua, is reproduced as under:- i. Traumatic swelling 8cm. x 7cm. over back of left hand middle part extending upto metacarpo phalangeal joint. Injury kept under observation. Advised X-Ray; ii. Abraded contusion 9cm. x 1½ cm. in front of left arm above downward; 6 iii. Lacerated wound 1cm. x ½ cm. x skin deep over left side abdomen just above the anti deep iliac spine. iv. Contusion 7cm. x 1cm. over left lateral aspect of chest 16 cm. below axilla. Injury no. 1 kept under observation. Advised X-Ray. Rest are simple. All injuries are fresh except no.1 whose duration cannot be ascertained. All injuries are caused by blunt object. The injuries found on the body of the Pramila (PW-3) on 07.11.1986 at 10:00 p.m., which was recorded as injury report Ext. Ka- 4 prepared by PW-5 Dr. Harish Chandra Dua, is reproduced as below:- i. Traumatic swelling in area 6cm. x 5cm. over/ linear eminence and back of thumb of right hand. The injury was kept under observation. Advised X-Ray. The injury kept under observation. Advised X-Ray. Duration of injury cannot be ascertained. Injury caused by Blunt object. (B) The accused/appellant Vinesh was also examined by PW- 5 Dr. Harish Chandra Dua-Medical Officer on 07.11.1986 at 11:45 p.m., which was brought in the hospital by Constable 172 Raj Kumar and Constable-1524 Narendra Singh of Police Station Roorkee. The injuries found on the body of the accused/appellant Vinesh is reproduced as under:- i. Lacerated wound 3½ cm. x ½ cm. scalp deep over left frontal region of skull. 5cm. above left eyebrow. Margins irregular. Bleeding present. Above downward. ii. Abraded area 3cm. x 1½ cm. over left side face 1½ cm. below left eye; iii. Abraded area 13 cm. x 1cm. over medial part of left forearm. 4cm. above wrist joint. Above downward; iv. Contusion left side back 11cm. 1½ cm. over lower part of scapular region. Red in colour. Horizontal; v. Contusion right side back. Just below to lower angle of scapula. 9cm. x 2cm. Horizontal. Red in Colour. 7 All injuries are simple, fresh and caused by blunt object. The accused Asha Ram was also examined by PW-5 Dr. Harish Chandra Dua-Medical Officer on 08.11.1986 at 12:05 a.m., which was brought in the hospital by Constable 172 Raj Kumar and Constable 1524 Narendra Singh of Police Station Roorkee. The injuries found on the body of the accused Asha Ram is reproduced as under:- i. Lacerated wound 2cm. x ½ cm. x bone deep over left side forehead. 1½ cm. above lateral part of left eyebrow. Margins irregular. Oozing of blood present; ii. Traumatic swelling 0.5cm. x 0.5cm. over left side forehead. 0.1 cm. above injury no. 1; iii. Traumatic swelling in area 7.5cm. x 5cm. over back of left hand at lower part mid portion extending upto 1st phalangeal of index middle & ring fingers. Injury kept under observation. Advised X-Ray; iv. Lacerated wound 1.5cm. x 2/10 cm. x skin deep over back proximal inter phalangeal joint of index finger of left hand. The injury no.3 kept under observation. Advised X-Ray. Rest injuries are simple. Duration of injury no. 2 & 3 cannot be ascertained. Rest injuries are fresh. All injuries are caused by blunt object. 12. To prove the injuries received by the injured, the prosecution has examined PW-5 Harish Chandra Dua- Medical Officer, who has proved the above injury reports and the injuries found on body of the above injured Kunwar Singh, Pramila and Chaman Lal (from the complainant’s side) and the accused/appellant Vinesh and Asha Ram (from the side of the accused/appellant). He also proved the injuries reports prepared by him i.e. Ext. Ka- 2 of Kunwar Singh, Ext. Ka- 3 of Chaman Lal and Ext. Ka-4 of Pramila. PW-5 Harish Chandra Dua has also proved the injuries found on the body of accused/appellants Vinesh and Asha Ram and also proved the 8 injury reports prepared by him i.e. Ext. Kha-1 of the accused/appellant Vinesh and Ext. Kha-2 of the accused Asha Ram. He also stated that the injuries found on the body of the accused persons Vinesh and Asha Ram can be caused on 07.11.1986 at 8:00 p.m. In his cross-examination, he has further stated that Kunwar Singh was medically examined by him on the same time when he was taken to the hospital. ( dqaoj flag dk MkDVjh eqvk;uk Hkh eSaus mlh le; dj fy;k Fkk] tc og vLirky vk;k Fkk ) 13. Further, the prosecution, to prove its case, has examined PW-2 Kunwar Singh-the injured eyewitness, who has sated that on the date of incident at about 8:00 p.m. when Ram Singh was installing an electric wire from the house of Kalyan Singh to his house then the accused persons Asha Ram, Vinesh, Rajendra and Nand Kishore have started quarrelling with Ram Singh due to the reason of installation of wire. On hearing noise he, Chaman Lal and Pramila came on the place of occurrence. Meanwhile, the accused/appellant Vinesh had fired at him with a TAMANCHA and he received the gun shot injuries at his left thigh. The accused Asha Ram who was armed with SARIA (iron rod) and the accused Nand Kishore and Rajendra who were armed with LATHIES have inflicted injuries to Pramila and Chaman. Thereafter, the accused persons had fled from the place of occurrence. He was taken to the University Hospital from where he was shifted to Roorkee Hospital and thereafter to Delhi. He remained admitted in the Roorkee Hospital from 07.11.1986 to 12.11.1986. After that he was shifted to Delhi for treatment. The evidence of this witness get corroborated from the evidence of PW-1 Ram Singh-complainant, PW-3 Pramila and PW-4 Chaman Lal. 14. PW-6 is the Head Moharir Ramesh Chandra Shrama who has stated that he prepared the Chik First Information Report Ext. Ka-1, which was prepared by him on the oral dictation of the complainant Ram Singh and an entry was also made by him 9 in the G.D. on the same date and time a copy of the G.D. is Ext. Ka- 5. 15. PW-7 is Rajendra Singh, who did not support the prosecution case and declared hostile. 16. PW-8 is Kalyan Singh, who also did not support the prosecution case and declared hostile. 17. After that the statements of the accused/appellant and the co-accused were recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to each of the accused/ appellants and the other co-accused in question form and each of the accused persons denied the allegations made against them and stated that they have been falsely implicated in the crime. 18. Learned counsel for the accused/appellant Sri Tapan Singh has submitted that the injuries sustained by the accused/appellants Vinesh and Asha Ram was not explained by the prosecution in any manner as to how the accused/ appellants have received the multiple injuries on the date of incident. I find substances in the argument advanced by the learned counsel for the accused/appellant as the said incident was said to have taken place on 07.11.1986 at about 8:00 p.m. and the accused/appellant- Vinesh was medically examined by PW-5 Dr. Harish Chandra Dua on 07.11.1986 at 11:45 p.m. and the accused Asha Ram was medically examined by PW-5 Dr. Harish Chandra Dua on 08.11.1986 at 12:05 a.m. who were brought by the Constable 172 Raj Kumar and Constable 1524 Narendra Singh of Police Station Roorkee, but the injuries of these accused persons was not explained by the prosecution. It a settled law that non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course 10 of altercation is a very important circumstance from which the following inferences can be drawn:- i. That the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; ii. That the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; iii. 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. 19. It is important to point out that the omission on the part of the prosecution to explain the injuries on the person of the accused/appellants assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution case. Further, on the basis of the evidence discussed above the prosecution witnesses have not uttered a single word in explaining the injuries sustained to the accused/appellants, alleged to be cause in the same incident on the same time, which creates a reasonable doubt in the prosecution case and it also shows that the prosecution has suppressed the genesis and the origin of the occurrence and has not presented the true version of the case. In this regard learned counsel for the accused/appellant has sited the judgment of Hon’ble the Supreme Court cited in (2008) 3 Supreme Court Cases-709 Babu Ram and others vs. State of Punjab and he relied on para-18 and 19 of the judgment, which are reproduced as under:- “18. It a settled law that in a murder case, the non- explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a 11 very important circumstance from which the court can draw the following inferences:- i. That the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; ii. That the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; iii. 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. 19. Further, It is important to point out that the omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one.” 20. From the evidence discussed above and on the basis of the judgment of Hon’ble the Supreme Court (Supra), it is established that the prosecution has suppressed the genesis and the origin of occurrence and has not presented the true version of the case. By not explaining the injuries of the accused/appellants, who were examined by the same Medical Officer PW-5 Dr. Harish Chandra Dua in the same Govt. Hospital after being brought by the Police Constables (before examining the injured persons of the complainant’s side), creates a reasonable doubt in the prosecution story and due to this important reason, the prosecution has failed to prove its case against the accused/appellant beyond doubt. 21. Learned counsel for the accused/appellant has further argued that the First Information Report is ante-timed and he has submitted that the First Information Report is fabricated so 12 as to implicate falsely the accused/appellant and it was not lodged at the time, as shown in the Chik First Information Report i.e. on 07.11.1986 at 10:00 p.m. I find substance in the argument of the learned counsel for the accused/appellant as the said incident was said to have been taken place on 07.11.1986 at about 8:00 p.m. while the Chik F.I.R. of this occurrence was lodged on 07.11.1986 at 10:00 p.m. on the oral dictation of the complainant Ram Singh (PW-1), but the injured Kunwar Singh was medically examined by PW-5 Dr. Harish Chandra Dua on 08.11.1986 at 2:30 a.m. who was brought in the hospital by the complainant Ram Singh. Further the injured Chaman Lal was medically examined by the Medical Officer PW-5 Harish Chandra Dua on 08.11.1986 at 2:00 a.m. who has been shown come himself to the hospital and the injured Pramila was medically examined on 07.11.1986 at 10:00 p.m. who was brought to the hospital by Ram Singh-husband of the injured. The injury reports Ext. Ka- 2 of Kunwar Singh, Ext. Ka- 3 of Chaman Lal and Ext. Ka- 4 of Pramila show that the injured of the complainant’s side were not brought to the hospital by the police. In case the Chik F.I.R. would have prepared on 07.11.1986 at 10:00 p.m. then certainly, these injured should have been sent to the hospital by the personnel of the concerned Police Station or by some Police Official, which also shows that Chik First Information Report was not prepared at the time of the medical examination of the injured in the hospital. This fact is further corroborated from the evidence of PW-5 Dr. Harish Chandra Dua who has stated that Kunwar Singh was medically examined by him at the same time when he was taken to the hospital. It shows that Kunwar Singh was medically examined by the Medical Officer on 08.11.1986 at 2:30 a.m. and when he reached in the said hospital, he was brought to the hospital by Ram Singh, which also corroborates this important fact that at that time the Chik First Information Report was not prepared and it was prepared lateron, which also creates a reasonable doubt in the prosecution story. 13 22. It is important to mention here that in the injury report of Chaman Lal and Pramila Devi, the Medical Officer PW-5 Harish Chandra Dua has mentioned that duration of the injuries cannot be ascertained, which shows that the injuries were not caused on 07.11.1986 at 8:00 p.m. because the injured Pramila was said to be examined by the Medical Officer on 07.11.1986 at 10:00 p.m. and Chaman Lal was medical examined by the Medical Officer on 08.11.1986 at 2:00 a.m. If the injuries were caused at the same time as mentioned in the Chik First Information Report, then it is not difficult for the Medical Officer to mention the time of the injuries caused to the person concerned; present for medical examination, which also creates a doubt in the prosecution story whether the incident was happened on the same time or not or in the same manner or not. 23. From the facts and circumstances discussed above and the judgment of Hon’ble the Supreme Court (Supra), the prosecution has not proved its case for the offence punishable u/s 307 I.P.C. against the accused/appellant Vinesh beyond reasonable doubt. Therefore, the Trial Court has erred in convicting and sentencing the accused/appellant Vinesh for the offence punishable u/s 307 I.P.C. vide his impugned judgment and order dated 16.01.1992 on the basis of the evidence available on the record. 24. Accordingly, the appeal is allowed. The accused/appellant Vinesh is acquitted from the charge levelled against him. The judgment and order dated 16.01.1992, passed by Additional Sessions Judge, Roorkee in Sessions Trail no. 289/1988 convicting the accused/appellant Vinesh for the offence punishable u/s 307 I.P.C. and convicting him to undergo rigorous imprisonment for a period of 8 years is hereby set aside. The accused/appellant Vinesh is on bail, he needs not to 14 surrender. His bail-bonds are cancelled and sureties are discharged. 25. Let a copy of this judgment, alongwith the record of the Court below be sent back to the Trial Court. (Dharam Veer, J.) 17.09.2008 NCM