IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Government Appeal No.1461 of 2001 (Old Government Appeal No.114 of 1994) State …… Appellant. Versus Taslim son of Yasin, R/o Gandhi Gram, Police Station Kotwali, District Dehradun. ….. Accused-Respondent. Sri Amit Bhatt, learned A.G.A. and Sri B.S. Parihar, Brief Holder for the State- appellant. Sri T.S. Phartiyal, learned Amicus Curiae for the respondent. Date 9th September 2008 Coram: Hon’ble Prafulla C.Pant, J. Hon’ble B.S.Verma, J. {Prafulla C. Pant, J. (Oral)} 1. This appeal preferred under Section 378 of the Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.) is directed against the judgment and order dated 14-10-1993 passed by learned 1st Additional Sessions Judge, Dehradun, in Sessions Trial No.122 A of 1987, whereby accused/respondent Taslim has been acquitted of the charge of offence punishable under Section 302 read with Section 34 of the Indian Penal Code 1860 (hereinafter referred as I.P.C.). 2. Heard learned counsel for the parties and perused the Lower Court Record. 3. The prosecution story in brief is that accused- respondent Taslim and his associate Rashid, residents of Gandhi Gram used to molest the girls of the locality within the limits of Police Station Kotwali, District Dehradun, and they had altercation a couple of times with Mukesh (deceased). On 2 2-8-1987 at about 8.00 p.m. Mukesh (deceased) accompanied with P.W.1 Om Prakash was returning after witnessing cycle show. When the two reached near house of the accused Taslim and his associate Rashid, the two (accused) hurling abuses at the deceased said “l ky s r w y M+fd ; ksa d k T; knk j {kd cur k gSA”. On this, Mukesh asked them not to hurl abuses. Thereafter accused Taslim armed with axe and co-accused Rashid (not respondent in this case) armed with Khukri (a sharp edged weapon) caused injuries on the person of Mukesh. The incident was witnessed by P.W.1 Om Prakash and P.W.2 Dashrath. The injured Mukesh was immediately rushed to Doon Hospital where he succumbed to the injuries at 10.10 p.m. According to the prosecution the witnesses saw the incident in the street electric light. When Mukesh was brought in an injured condition to the hospital, his injuries were recorded in the injury report (Ext. A-2). After death of Mukesh, the First Information Report (Ext. A-1) was lodged by P.W.1 Om Prakash with Police Station Kotwali, which was registered as Crime No. 476 of 1987 and a check report (Ext. A-12) was prepared. The Police took the dead body of Mukesh in its possession and prepared the inquest report (Ext. A-4), sketch of the dead body (Ext. A-5), Police form No. 13 (Ext. A- 6) and letter to Chief Medical Officer (Ext. A-7), requesting for post mortem examination. P.W.5 constable Udai Veer Singh took the dead body in the sealed condition for post mortem examination. P.W.6 Dr. S.P. Tiwari, conducted autopsy on 3- 8-1987. P.W. 8 Albel Singh Inspector of Police Station Kotwali, Dehradun, investigated the crime. On completion of investigation, a charge sheet was filed against both the accused Taslim and Rashid. (However, it appears that after examination of some seven witnesses, case of accused Taslim was separated as he did not appear in the court and a new Sessions Trial No.227 A of 1987 was numbered). 3 4. The Magistrate, on receipt of the charge sheet, appears to have committed the case to the Court of Session for trial after giving accused necessary copies as required under Section 207 of Cr.P.C. Learned Sessions Judge on 2-11-1987, after hearing the parties framed charge of offence punishable under Section 302 read with Section 34 of I.P.C. against both the accused Taslim (present respondent) and Rashid. Both the accused pleaded not guilty and claimed to be tried. On this prosecution got examined P.W.1 Om Prakash, complainant and eye witness, P.W.2 Dashrath an eye witness, P.W.3 Dr. D.S. Negi, who recorded the injuries on the person of injured Mukesh at the time when he was brought to the hospital, P.W.4 P.S. Rautella, who prepared the inquest report, P.W.5 Constable Udai Veer Singh, who took dead body for the post mortem examination, P.W.6 Dr. S.P. Tewari, who conducted the autopsy, P.W.7 Head Constable M.S. Bisht, who prepared the check report (Ext. A-12) and P.W.8 Albel Singh, the Investigating Officer. The oral and documentary evidence was put to the accused in respect of which he alleged the same to be false. In defence D.W.1 Parmanand Bahukhandi was got examined. The trial court, after hearing the parties found that the prosecution has failed to prove the charge of offence punishable under Section 302 read with Section 34 of I.P.C. and acquitted the accused. Meanwhile co-accused Rashid too had been acquitted of the charge vide judgment and order dated 21-4-1992 by learned Sessions Judge, Dehradun. The State preferred appeal against the said order also which was registered as Government Appeal No.1127 of 2001 (old No.1353 of 1992) and the same was dismissed vide order dated 03-04-2007 by this Court. The present appeal was filed by the State before the Allahabad High Court on 19-1-1994, which was admitted there on 25-11-1998. The appeal was received by this Court under Section 35 of the U.P. Reorganisation Act, 2000 (Central Act No. 29 of 2000) for its disposal. 4 5. Before further discussions, we think it just and proper to mention the injuries found on the person of Mukesh on 2-8-1987 when he was brought in Doon Hospital in injured condition. The medical report (Ext. A-2) prepared by Dr. D.S. Negi, (P.W.3) discloses following injuries on the person of Mukesh at the time of his admission in the hospital: - (1) Incised wound 12 cm. x 3 cm x bone deep on right side of forehead on temporal region extending upto right ear and mestoid region which is cut in middle through and through, bleeding. (2) Incised wound 5 cm. X 3 cm. X skin deep on the left side of neck, 4.5 cm. below ear. The aforesaid two injuries got corroborated from the corresponding ante mortem injuries found by Dr. S.P. Tiwari (P.W.6) on 3-8-1987 at the time of autopsy on the dead body, which are recorded in post mortem examination report (Ext. A- 11). The same are shown to be stitched wounds as before death, the injured was given medical treatment. As such, as far as the homicidal death of Mukesh is concerned, the same is established on record. However this Court has to see whether the trial court erred in law in acquitting the accused Taslim by holding that the prosecution has failed to prove the charge against him. 6. On behalf of the State-appellant it is argued that there are two eye witnesses namely P.W.1 Om Prakash and P.W.2 Dashrath, who had seen the incident but the trial court has erred in law in not believing their testimony. We have re- examined and re-assessed the evidence on record and do not find that the trial court has committed any error of law or that of fact in acquitting the accused. Though aforesaid two 5 witnesses had supported the prosecution but their testimony appears to be shaky and doubtful for the following reasons:- (1) There is no source of light disclosed in the first information report, in which the two alleged eye witnesses had an opportunity to witness the incident. (2) P.W.1 Om Prakash is brother of the deceased and it is highly doubtful that he was accompanying the deceased along with P.W.2 Dashrath at the time of the incident for the reason that there should have been some stains of blood on his clothes as P.W.1 Om Prakash states that he took his injured brother in a bleeding condition to hospital on his lap, in a three wheeler. However there was no such corroborating evidence on record. (3) P.W.2 Dashrath states that he accompanied P.W.1 Om Prakash in taking Mukesh to hospital but statement of P.W.3 Dr. D.S. Negi, who prepared medical examination report (Ext. A-2) shows that one Matthu brought the injured to the hospital. (4) The place of incident as stated by the Investigating Officer (P.W.8 Albel Singh) does not appear to be the place where the incident had taken place as per the testimony of the eye witnesses. Apart from the above four points, there are other circumstances also which suggest that the incident had not taken place in the manner stated by the alleged eye witnesses P.W.1 Om Prakash and P.W. 2 Dashrath. It has come on the record in their testimony that after the cycle show was over, there were hundreds of persons coming out from the show and 6 at that stage it is hard to believe that the accused would kill the person in the manner suggested by the prosecution when hundreds of people were coming from the show. (It has come on the record that deceased and Om Prakash were also coming after the cycle show was over and the place of incident is said to be not so far away from the place of cycle show). The above circumstance on the record creates a reasonable doubt as to the truthfulness of the prosecution story and in the above circumstances the trial court has rightly given the benefit of reasonable doubt to the accused/respondent Taslim holding that charge of commission of murder of Mukesh with common intention does not stand proved beyond reasonable doubt against him. 7. For the reasons as discussed above, we do not find sufficient reason to interfere with the impugned judgment and order dated 14-10-1993 passed by learned 1st Additional Sessions Judge, Dehradun in Session trial No.122 A of 1987 whereby accused/respondent is acquitted of the charge of offence punishable under Section 302 read with Section 34 of the I.P.C. Therefore, the appeal is dismissed. (B.S.Verma, J.) (Prafulla C. Pant, J.) 09-09-2008 RCP