IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Jail Appeal No. 2058 of 2001 (Old No. 2861 of 1999) Ramdhun, S/o Jai Ram R/o Village Dugrayia P.S. Kunwargaon, District Badaun (U.P.) ……….Appellant Versus State of Uttarakhand …………Respondent Shri Lalit Sharma, Advocate, present for the appellant. Shri Prabhakar Joshi, Brief Holder, present for the State And Criminal Appeal No. 398 of 2001 (Old No. 1946 of 1997) Smt. Mithlesh, W/o Ramesh Chandra R/o Majhola, P.S. Nanankmatta District Udham Singh Nagar ……….Appellant Versus State of U.P. (now State of Uttarakhand) 2 …………Respondent Shri T.S. Takuli, Advocate, present for the appellant. Shri Prabhakar Joshi ,Brief Holder, present for the State Hon’ble Prafulla C. Pant, J. Hon'ble Sudhanshu Dhulia, J. Oral: Hon'ble Prafulla C. Pant,J. Both these appeals are directed against the judgment and order dated 24.10.1997/25.10.1997, passed by Special Judge/Additional Sessions Judge, Nainital, in Sessions Trial No. 268 of 1996, whereby said court has convicted the accused/appellants Ramdhun, and Smt. Mithlesh under section 302 IPC, and under section 302 read with section 34 IPC respectively, and sentenced each one of them to imprisonment for life. 2. Heard learned counsel for the parties, and perused lower court record. 3. Prosecution story, in brief, is that Ramesh Chandra (deceased) used to live in Majhola within the limits of Police Station Nanakmatta, with his wife Smt. Mithlesh (appellant), and his children. 3 P.W.1 Siya Ram, informant, is brother of the deceased. Accused/appellant Ramdhun who was son of sister of the deceased also used to live with him (Ramesh Chandra/deceased). Ramesh Chandra became suspicious about Ramdhun that he had developed illicit relations with his wife Mithlesh. Due to that reason the couple used to quarrel , and Ramesh Chandra insisted that accused/appellant Ramdhun should leave his house. On 25.09.1996, at about 7:30 p.m., P.W.1 Siyaram came to the house of Ramesh Chandra (deceased) , and after mediation he made Ramdhun leave house of Ramesh Chandra. Prosecution case is that after Ramdhun left house of Ramesh Chandra, P.W.2 Rampal another relative of Ramesh Chandra came in his house, on the very day, and slept there with the permission of Ramesh Chandra. In the intervening night of 25.02.1996/26.02.1996, in the wee hours, Rampal (P.W.2) woke up after he heard shrieks of Ramesh. He (P.W.2) saw that Ramdhun is assaulting Ramesh with a KANTA (a pointed sharp edged weapon with long rod). Smt. Mithlesh was exhorting him (Ramdhun) to kill Ramesh. On this, Rampal went to the house of Siyaram (P.W.1), and 4 informed about the incident. When the two started coming towards house of Ramesh Chandra, Ramdhun was leaving with KANTA in his hand. On 26.02.1996, at 7:45 a.m., Siyaram lodged first information report (Ex. A1) at Police Station Nanakmatta (Earlier Police Station Nanakmatta was part of District Nainital, now part of District Udham Singh Nagar). On the basis of said report crime no. 35 of 1996, was registered against the accused Ramdhun and Mithlesh relating to offences punishable under section 302/452 IPC. The investigation was taken up by P.W.8 Sub- Inspector Devendra Singh who went at the spot and got prepared inquest report (Ex. A2) after the dead body of Ramesh Chandra was taken into possession and sealed. The police further prepared sketch of the dead body (Ex. A8), police form no.13 (Ex. A9), and other necessary papers before sending the dead body for post-mortem examination. P.W.7 Dr. K.C. Joshi, conducted post- mortem examination on the dead body of Ramesh Chandra on 27.02.1996, and prepared autopsy report (Ex. A13). He recorded as many as seven ante-mortem injuries, and opined that deceased had died of coma as a result of ante- 5 mortem injuries. After interrogating the witnesses , and recovery of KANTA, on pointing out of the accused, the Investigating Officer submitted charge sheet (Ex. A17) against the accused Ramdhun and Mithlesh for their trial in respect of offences punishable under section 452, 302 IPC. 4. The Judicial Magistrate, Khatima, on receipt of the charge sheet, after giving necessary copies to the accused as required under section 207 Cr.P.C., committed the case to the court of sessions at Nainital, for trial. On 17.07.1996, the Additional Sessions Judge, Nainital, framed charge of offence punishable under section 302 IPC against the accused Ramdhun, and that of one punishable under section 302 read with section 34 IPC against the accused Smt. Mithlesh. Both of them pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W.1 Siyaram informant, P.W.2 Rampal (alleged eye witness), P.W.3 Head Constable Pooran Singh (who prepared the check report ), P.W.4 Jagdish Prasad (declared hostile), P.W.5 Sub-Inspector Jitendra Kumar Tyagi (who prepared inquest report), 6 P.W.6 Sub-Inspector C.P. Diwedi (who got KANTA recovered), P.W.7 Dr. K.C. Joshi (who conducted post-mortem examination), and P.W.8 Sub- Inspector Devendra Singh (who investigated the crime). The oral and documentary evidence was put to the accused under section 313 Cr.P.C., in reply to which they alleged that they have been falsely implicated. Smt. Mithlesh pleaded that informant Siyaram wants to usurp her property and for that reason she has been falsely implicated in the case. Accused Ramdhun pleaded that he was not in the house of the deceased, and falsely implicated in the crime. However, no evidence in defence was adduced. The trial court after hearing the parties found that prosecution has successfully proved charge against the accused/appellants Ramdhun and Smt. Mithlesh, and accordingly convicted Ramdhun under section 302 IPC , and Smt. Mithlesh under section 302/34 IPC. After hearing on sentence, each one of the convicts was sentenced to imprisonment for life. Hence these appeals were filed before Allahabad High Court by the convicts challenging the order passed by the trial court. Both the appeals received by this Court under section 35 of U.P. Reorganization Act, 7 2000 (Central Act 29 of 2000) for their disposal. 5. Before further discussion we think it just and proper to mention ante-mortem injuries found on the body of Ramesh Chandra by P.W.7 Dr. K.C. Joshi, on 27.02.1996, at the time of post-mortem examination. Same are being reproduced below from the autopsy report Ex. A13. (i) An incised wound measuring 19cm X 6cm from upper anterior part of left side of cheek and eye to left side of face on nasoliatial fold obliquely cutting right eye to nose on the face. Deeply cut all blood vessel and underlying maxilla nosal bones edges are sharp clean cut and somewhat jagged. (ii) An incised wound 13cm X 5cm from left to right occuput of scalp oxipital and parietal bones cut. Brain matter exposed and cut alongwith clotted blood. (iii) An incised wound 5cmX 2cm spudh shaped measuring 5cm X 2cm sharp, clean cut with defined on left back of shoulder joint oblique. 8 (iv) An abrasion left upper part of back 10cm X 2cm bluish in colour. (v) An abrasion left upper arm 10cm X .2cm bluish red. (vi) An incised wound left upper part of scalp 8cm X 1.5cm . 7Cm above the left ear. An abrasion on left elbow joint. The medical officer opined that deceased had died of coma as a result of ante mortem injuries . P.W.7 Dr. K.C. Joshi, stated that the injuries might have been caused on the person of the deceased on 26.02.1996, at 4:00 a.m.. He further stated that the injuries might have been caused with KANTA. From the medical evidence on record, it is established that Ramesh Chandra died homicidal death on 26.02.1996. Now we have to examine whether prosecution has successfully proved that accused/appellants Ramdhun, and Mithlesh with common intention committed murder of Ramesh or not. 6. P.W.1 Siyaram, informant, is not an eye witness. He is brother of the deceased. He has simply narrated the motive for commission of 9 crime, and the fact that accused was seen armed with KANTA soon after commission of murder . According to this witness (P.W.1 Siyaram) his brother Ramesh (deceased) suspected that accused Ramdhun had illicit relations with his wife Mithlesh, and due to this they used to quarrel. It is further stated by P.W.1 Siyaram that Ramesh wanted to oust Ramdhun from his house. The witness further states that on 25.02.1996, after Ramesh (deceased) and his wife Mithlesh (appellant) quarreled over the issue, he went to their house, and made Ramdhun to leave the house of Ramesh. This witness further states that about 4:00 a.m., (on 26.02.1996) Rampal (P.W.2) came to his house, and told that Ramdhun was assaulting Ramesh. The witness further states that he alongwith Rampal proceeded towards the house of Ramesh, he saw Ramdhun going with a KANTA in his hand. However, his statement is full of doubts as it is not clear that, when this witness (Siyaram) was not in the house of Ramesh Chandra at the time of incident on what basis he made statement that Rampal was sleeping in the house of Ramesh in a room outside of Ramesh house. It is also not clear how he made a statement 10 that at the time of incident there was electric light on in the house. 7. P.W.2 Rampal has been produced by the prosecution as an eye witness in this case. Rather, he (P.W.2) appears to be the sole eye witness of the incident. Though he states that he saw Mithlesh exhorting Ramdhun to kill Ramesh, and thereafter Ramesh was assaulted by KANTA by Ramdhun but his statement is not trust worthy. It is relevant to mention here that this witness P.W.2 Rampal belongs to Village Sitarganj. Incident has taken place in Majhola, within the limits of Police Station Nanakmatta. Though the witness states that he was the guest on the day of incident in the house of Ramesh Chandra who was his relative, but it further creates a reasonable doubt as to why Mithlesh and Ramdhun would Kill Ramesh when the outsider, a witness, has came in the house. Learned counsel for the State tried to explain that Rampal came in the house of Ramesh Chandra after Ramdhun had left the house, as such, there is nothing unnatural on the part of Ramdhun to do murder of Ramesh in the fateful night. However, this does not explain as to why Mithlesh would 11 ask Ramdhun to kill Ramesh in the presence of Rampal (P.W.2). Not only this, it has come on the record that Rampal was sleeping in a room outside the house of Ramesh, that being so, even Ramdhun, if he came from the outside knew that outsider is sleeping in the house of Ramesh. In our opinion the presence of Rampal (P.W.2) in the house of Ramesh Chandra who is resident of different village is highly doubtful. 8. Strangely, though the children of Ramesh Chandra were in the house but none of them have been produced to make a statement as to what happened in the intervening night of 25.02.1996/ 26.02.1996. Nay, not only this P.W.4 Jagdish who is tenant of Ramesh Chandra has not supported the prosecution story that Ramdhun committed murder of Ramesh. This witness (P.W.4 Jagdish Prasad) who was tenant of Ramesh has stated that on the eve of incident, Ramesh and his wife had a quarrel, and in the morning Ramesh was found dead. This witness denied that he saw Ramdhun armed with KANTA. In respect of the incident, the family members and tenants in the house could have been the best witnesses to throw light into 12 the incident. 9. The prosecution story as narrated by P.W.1 Siyaram, and P.W.2 Rampal further appears to be doubtful as accused Ramdhun who was all alone from a different village would take KANTA in his hand openly just to throw in a field where anyone could have detected the weapon there and seen the accused throwing. 10. For the reasons, as discussed above, after reappreciating the evidence on record, we are of the view that it cannot be said that prosecution has successfully proved the charge against the accused beyond reasonable doubt. As such, the trial court has erred in law in holding the accused/appellants Ramdhun and Smt. Mithlesh are guilty of charge of offence punishable under section 302IPC and under section 302 read with section 34 IPC, respectively. 11. Both the appeals are allowed. Impugned judgment and order dated 24.10.1997/ 25.10.1997 passed by Special Judge/Additional Sessions 13 Judge, Nainital, in Sessions Trial No. 268 of 1996 regarding conviction and sentence of the appellants Ramdhun and Mithlesh under section 302 IPC and under section 302 read with section 34 IPC, is hereby set aside. They are acquitted of the charge of offence punishable under section 302, and under section 302/34 IPC. Accused/appellant Ramdhun is said to be in jail. He shall be set at liberty forthwith if not wanted in connection of any other case. Let a copy of this judgment be sent to the Superintendent of Jail concerned. Appellant Mithlesh appears to have been directed to be released on bail by Allahabad High Court. She need not to surrender. Her bail bonds are cancelled. Let lower court record be sent back. (Sudhanshu Dhulia, J.) (Prafulla C. Pant,J.) 27.12.2010 Parul