IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Government Appeal No. 1257 of 2001 (Old No. 1536 of 1993) State of U.P. ……Appellant. Versus Rumal Singh S/o Sri Ratiram R/o Village Phoolgarh P.S. Pathari District Haridwar. .……….Respondent. Shri Harish Pujari, learned Additional Government Advocate for the State/appellant. Shri Bhuwanesh Joshi, Advocate, Holding Brief of Shri Vivek Shukla, learned counsel for the respondent. Coram:Hon’ble Prafulla C. Pant, J. Hon’ble Dharam Veer, J. Oral:-Hon’ble Prafulla C. Pant, J. This appeal, preferred under Section 378 of Code of Criminal Procedure, 1973 (herein after referred as Cr.P.C.), is directed against the judgment and order dated 03.06.1993, passed by learned Sessions Judge, Haridwar, in Sessions Trial No. 236 of 1991, whereby accused/respondent Rumal Singh, is acquitted of charge of offences punishable under Sections 302 and 307 of Indian Penal Code, 1860 (herein after referred as I.P.C.) 2. Heard learned counsel for the parties and perused the lower court record. 3. Prosecution story in brief, is that accused/respondent Rumal Singh, is resident of Village Phoolgarh. Nemisaran, and Ram Kishan, are 2 his neighbours. On 24.04.1991, at about 8:15 a.m., accused/respondent Rumal Singh, while playing cards with Nemisaran, and Ram Kishan, quarrelled among themselves. On hearing noise, P.W. 1 Charan Singh, P.W. 3 Mohar Singh, one Sukhram and some children also reached there. On seeing Charan Singh and Sukhram, accused/respondent Rumal Singh, started hurling abuses at them. And thereafter accused/respondent went inside his house, brought out his SBBL gun (Ext. 2) and fired at Charan Singh and Mohar Singh but the fire did not hit them. Instead at some distance where Sukhram’s daughter Urmesh (deceased) and Tilak Ram’s son Kunwar Sen (P.W. 2), were standing, the fire hit at them. Kunwar Sen (P.W. 2) suffered injuries on his right leg, while Urmesh suffered injuries near the right eye. Both the children fell down on the spot. On seeing this, accused/respondent Rumal Singh, along with his gun ran away towards jungle. Charan Singh, took the two children in a tractor to hospital. However, on way to hospital, the girl Urmesh succumbed to the injuries. Charan Singh (P.W. 1) lodged the First Information Report (Ext. A-1) after getting the same scribed through Mohar Singh (P.W. 3), at about 9:30 a.m. with Police Station Pathari, District Haridwar. Constable Clerk Rishipal (P.W. 10), prepared check report (Ext. A-19) and also made necessary entry in the general diary, a copy of which is Ext. A-20. Station House Officer Shri Bhan Singh (P.W. 9) of P.S. Pathari, investigated the crime. He sent Sub- Inspector Ram Prakash Mishra (P.W. 8), for taking the 3 dead body of Urmesh into his possession. Said officer got the dead body sealed and prepared inquest report (Ext. A-6), sketch of the dead body (Ext. A-7), police from No. 13 (Ext. A-8), letter to Chief Medical Officer (Ext. A-9), requesting for post mortem examination of the deceased. Constable Babu Ram (P.W. 4) took the dead body in a sealed condition along with Constable Sanjeev Kumar. Dr. A.K. Chaturvedi (P.W. 6) conducted the post mortem examination on the dead body on 25.04.1991, at 10:30 a.m. and prepared autopsy report (Ext. A-4). Meanwhile, Dr. Vipin Kumar Premi (P.W. 5) recorded injuries found on the person of Kanwar Sen on 24.04.1991, and prepared injury report (Ext. A-2). During investigation, the Investigating Officer, interrogated the witnesses, arrested the accused and recovered the gun used in the crime. He also sent the cartridges allegedly recovered from the spot and the gun to the Forensic Laboratory. Shri Ram Asrey Pandey (P.W. 13), Assistant Director of Forensic Laboratory, Agra, examined the articles sent for examination and prepared his report (Ext. A-22), and gave opinion that the cartridge (Ext. 3) was fired from SBBL gun (Ext. 2). After completion of the investigation, the Investigating Officer, submitted charge sheet (Ext. A-16) against accused/respondent Rumal Singh. 4. The Magistrate on receipt of the charge sheet, appears to have committed the case to the Court of Sessions for trial, after giving necessary copies to the 4 accused, as required under Section 207 Cr.P.C. Learned Sessions Judge, after hearing the parties, framed charge of offence punishable under Section 302 I.P.C. relating to commission of murder of young girl Urmesh and also that of offence punishable under Section 307 I.P.C. for attempting to commit murder of young boy Kunwar Sen (P.W.2). Accused/respondent denied the charge and claimed trial. On this, prosecution got examined P.W. 1 Charan Singh (complainant and eye-witness), P.W. 2 Kunwar Sen (injured eye-witness), P.W. 3 Mohar Singh (another eye-witness), P.W. 4 Constable Babu Ram (who took the dead body of the deceased in a sealed condition with Constable Sanjeev Kumar for post mortem examination), P.W. 5 Dr. Vipin Kumar Premi (who recorded injuries on the person of Kunwar Sen), P.W. 6 Dr. A.K. Chaturvedi (who conducted autopsy on the dead body of the deceased), P.W. 7 Harbans (before whom recovery of SBBL gun (Ext. 2) was made from the house of the accused), P.W. 8 Sub- Inspector Ram Prakash Mishra (who prepared the inquest report and other related papers), P.W. 9 Sub- Inspector Bhan Singh (who investigated the crime), P.W. 10 Constable Rishipal (who while registering the case, prepared check report of the First Information Report), P.W. 11 Head Constable Ram Niwas (who made entry of the sealed recovered cartridges and the gun in the Malkhana), P.W. 12 Constable Chandra Pal Singh (who took the recovered gun and cartridges to the Forensic Laboratory) and P.W. 13 Ram Asrey 5 Pandey (Assistant Director of Forensic Laboratory, who examined the articles sent for examination). 5. The oral and documentary evidence was put to the accused under Section 313 Cr.P.C. by the trial court, relating to which the accused/respondent, alleged that the same is false. He further submitted in his statement under Section 313 Cr.P.C. that it was licensed gun of Charan Singh by which accidental fire took place and Urmesh died. However, no evidence in defence was adduced. The trial court after hearing the parties, found that the charge against the accused/respondent Rumal Singh, is not proved beyond reasonable doubt and acquitted him of the charge, framed against him. Aggrieved by said judgment and order dated 03.06.1993, passed in Sessions Trial No. 236 of 1991, by Sessions Judge, Haridwar, this appeal was filed before Allahabad High Court on 21.08.1996. Leave was granted and appeal was admitted by Allahabad High Court on 18.11.1998. The appeal is received by this Court under Section 35 of U.P. Reorganisation Act, 2000, for its disposal. 6. Before further discussions, we think it just and proper to mention the ante mortem injuries found on the dead body of deceased (Urmesh) by Dr. A.K. Chaturvedi (P.W. 6), who prepared autopsy report (Ext. A-4). The ante mortem injuries are being reproduced hereunder:- 6 1. Wound of entry- Blackening present, scorching present, size circular 3cm X 3cm diameter, bone cavity deep. Direction- downward and backward. In the opinion of the aforesaid Medical Officer (Dr. A.K. Chaturvedi), cause of death was shock and haemorrhage due to ante mortem injuries suffered by deceased. 7. We also think it proper to mention the injuries found on the person of Kunwar Sen (P.W. 2) by Dr. Vipin Kumar Premi (P.W. 5), who examined him on 24.04.1991, and prepared report (Ext. A-2). There is only one injury found on the person of Kunwar Sen, which reads as under:- 1. Lacerated wound 8cm X 4cmX muscle deep over the right leg. 8. There are three eye-witnesses, who are examined on behalf of the prosecution in support of their case that accused/respondent Rumal Singh fired shot from his gun at Charan Singh and Sukhram, which hit at Kunwar Sen and Urmesh. P.W. 1 Charan Singh, P.W. 2 Kunwar Sen and P.W. 3 Mohar Singh, have supported the prosecution story, stating that accused Rumal Singh, fired shot from his gun in the manner stated above. Though prima facie from the statement made by the aforesaid witnesses in the examination in chief, read with the injuries mentioned above, it appears as if the accused/respondent has committed 7 murder of Urmesh and caused injuries on the person of Kanwar Sen. However, on close scrutiny of the evidence and after carefully reading of the same, we found that the trial court has not committed any error of law in coming to the conclusion that the incident does not appear to have taken place in the manner suggested by the prosecution witnesses. From the statement of the eye-witnesses, it comes out that Charan Singh (P.W. 1) and Mohar Singh (P.W. 3), were near the accused/respondent Rumal Singh and Kanwar Sen and Urmesh were near a water tap, at a distance from 30 to 40 steps. From the ante mortem injuries, quoted above, it is clear that the Medical Officer found blackening and scorching present in the injury of the deceased, which suggests that she received fire arm injuries from a very close range, approximately within 3-4 feet. Apart from this, the prosecution eye-witnesses say that only one fire was shot from the gun. It is difficult to believe how one fire struck two persons, at the same time. P.W. 1 Charan Singh, has tried to explain this, in his cross examination, by saying that first the fire struck at Kunwar Sen and then got diverted to Urmesh. It is pertinent to mention here that if that is the case then the prosecution wants to suggest that when the fire struck at the leg of Kunwar Sen, it got diverted upward and then hit at Urmesh’s forehead, which does not appear to be a natural story. Another point, which creates reasonable doubt in the prosecution story is that accused/respondent Rumal Singh, has no motive to fire or kill either Charan Singh, or Sukhram or 8 Urmesh or Kunwar Sen. The dispute is said to have taken place between Rumal Singh, Ram Singh and Nemisaran, who were playing cards. Charan Singh and Sukhram are said to have reached there on hearing the noise. Even this is not suggested that they objected to playing cards or creating noise. 9. For the reasons, as discussed above, we are of the opinion that the view taken by the trial court that the prosecution has not successfully proved the charge beyond reasonable doubt against accused/respondent Rumal Singh, cannot be said to be against the evidence on record. When two views are possible on the basis of the evidence on record, it is not desirable to upset the finding of the trial court unless there are strong reasons to do so. 10. Therefore, we do not find any merit in this appeal, which is liable to be dismissed. The appeal filed by the State is dismissed. (Dharam Veer, J.) (Prafulla C. Pant, J.) Dt:01.07.2008 Sweta 9 10 11 12 13 14