IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No.605 of 2001 (Old No.1293 of 1989) Govind S/o Ragha R/o Gandhi Gram, Nai Basti, Dehradun …….….…. Appellant Versus The State …………… Respondent Dated: April 25, 2008 Sri I.P. Kohli, learned amicus curiae for the appellant Sri Prabhakar Joshi, learned brief holder for the State/respondent HON. DHARAM VEER, J. This appeal, preferred by the appellant u/s 374(2) of Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 04.05.1989 passed by Ist Additional Sessions Judge, Dehradun in S.T. No.58 of 1987, whereby the learned Ist Additional Sessions Judge has convicted the appellant-Govind under Section 304 (Part-II) of Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced him to two years’ imprisonment. 2. In brief, the prosecution case is that on 30.9.1984 at about 6:00 P.M. in the evening, appellant Govind along with his sons Lallu, Prakash and his relative Jagat had gone to attend the party at the house of Jabbar, who is the brother in law (Behnoi) of Ghanshyam and neighbourer of complainant/P.W.1 Bhagwati Devi. They started making noise and also hurled abuses. Bhajan Singh (deceased) husband of complainant Bhagwati Devi who had come from outside, asked the appellant Govind and other accused persons that they should not create noise as there was temple of ‘Maa Vaishno Mata’ and if they (appellant and his associates) wanted to bow their heads, they could do from outside. On this, appellant Govind and his sons and relative caught hold Bhajan Singh and caused 2 him injuries by beating with axe, Lathis and Dandas and started to drag him towards their house. Meanwhile, Chandra Pal Sharma and Ved Prakash, sons of complainant and other persons of the locality had reached on the place of occurrence. After seeing all these persons, appellant and other accused persons ran away from the place of occurrence. Thereafter injured Bhajan Singh was got admitted in Doon Hospital. With the same averments, P.W.1 Bhagwati Devi wife of injured Bhajan Singh lodged the FIR of the said incident orally in P.S. Kotwali, Dehradun on 30.9.1984 at 8:05 P.M. On the basis of the oral FIR, a Chik FIR was prepared by Constable Clerk Sewa Ram, i.e. Ex.Ka-1. The entry was also made in the G.D., the carbon copy of G.D. is Ex.Ka-9. The case was registered against the appellant Govind and also against co-accused Lallu, Prakash and Jagat u/s 308 IPC as Case Crime No.855/1984. The investigation of the case was entrusted to P.W.6 S.I. Virendra Pal Singh. Injured Bhajan Singh died in the hospital on 1.10.1984 at 5:30 A.M. The memo was sent from the hospital on 1.10.1984 through Ward Boy Tulsi Das at P.S. Kotwali Dehradun on 1.10.1984 at 6:30 A.M., the copy thereof is Ex.Ka-4. The inquest report of the dead body was also prepared by S.I. Kiran Veer Singh on 1.10.1984, the inquest report is Ex.Ka-14. Photo Lash is Ex.Ka-13; letter sent to Inspector for conducting the post- mortem is Ex.Ka-10; letter sent to CMO for conducting the post-mortem is Ex.Ka-11 and letter sent to Medical Officer for conducting post-mortem is Ex.Ka.12. Thereafter, the post-mortem of the dead body of Bhajan Singh was conducted on 1.10.1984 at 4:00 P.M., the post-mortem report is Ex.Ka-3. During the course of investigation, the I.O. took in his possession the blood stained clay and the play clay and a Fard was prepared by him i.e. Ex.Ka-5. The I.O. also took the blood stained rope and plain rope of 3 the cot in his possession on which the deceased was said to be laid, and he also prepared a Fard, i.e. Ex.Ka-6. The axe in question was also taken into possession by I.O. and a Fard was prepared i.e. Ex.Ka-7. The I.O. also inspected the place of occurrence and prepared the site plan i.e. Ex.Ka-8. During the course of investigation, the I.O. recorded the statements of the witnesses and after completing the investigation, he submitted the charge sheet against the appellant Govind u/s 304 IPC, i.e. Ex.Ka-2. In the said charge sheet, co-accused Prakash, Lallu and Jagat were shown as absconders. 3. Learned Chief Judicial Magistrate, Dehradun committed the case to the court of Sessions on 10.06.1987 under section 209 Cr.P.C. after complying with the provisions of Section 207 Cr.P.C. 4. The learned Sessions Judge, Dehradun transferred the case to the court of Ist Additional Sessions Judge, Dehradun for disposal according to law. 5. On 07.06.1988, Ist Additional Sessions Judge, Dehradun framed the charge against the appellant Govind u/s 304 IPC. The charge was read over and explained to the appellant who pleaded not guilty and claimed to be tried. 6. To prove its case, the prosecution has examined P.W.1 Bhagwati Devi, complainant and wife of deceased Bhajan Singh, P.W.2 Ved Prakash, son of P.W.1 Bhagwati Devi, P.W.3 Chandra Pal Sharma, son of P.W.1 Bhagwati Devi, P.W.4 S.I. Rajendra Singh Tomar, I.O. of the case, P.W.5 Dr. D.S. Rawat, who conducted the post-mortem of the dead body of Bhajan Singh and P.W.6 S.I. Virendra Pal Singh, I.O. of the case. 4 7. Thereafter, the statement of the appellant Govind was recorded u/s 313 of Cr.P.C. The oral and documentary evidence was put to him in question form, who denied the allegations made against him. However, in defence, he had not produced any oral or documentary evidence. 8. After appreciating the evidence on record and after hearing learned counsel for the parties, the learned Ist Additional Sessions Judge, Dehradun vide his judgment and order dated 04.05.1989 convicted the appellant-Govind u/s 304 (Part II) of IPC and sentenced him for two-years’ imprisonment. Feeling aggrieved by the aforesaid judgment and order dated 04.05.1989, the appellant Govind has preferred the present appeal. 9. This appeal was filed in the High Court of Judicature at Allahabad on 23.5.1989. The High Court of Uttarakhand has received this appeal u/s 35 of the U.P. Reorganization Act, 2000 after creation of State of Uttaranchal now Uttarakhand. 10. I have heard Sri I.P. Kohli, learned amicus curiae for the appellant and Sri Prabhakar Joshi, learned brief holder for the State and perused the entire material available on record. 11. Before further discussion, it is pertinent to mention the ante-mortem injuries found on the person of deceased Bhajan , which are reproduced as under: - 1. Stitched wound 6 cm. with three stitches right side of forehead placed vertically, just above medial end of right eyebrow. 2. Irregular lacerated wound 8 cm x 3 cm x brain cavity deep, on the middle of forehead, vertically placed underlying frontal bone has depressed fracture, piece of frontal bone tearing the meninges and embedded in the brain matter. 5 3. Irregular lacerated wound 4 cm x 3 cm x bone deep on the right side of temple 10 cm. above outer end of left eye brow, underlying left speramous temporal and parietal bone having track fracture 10 cm. long Cause of death was shown due to shock and hemorrhage as a result of ante-mortem injuries. 12. To prove its case, the prosecution has examined P.W.1 Bhagwati Devi who has stated that on 30.9.1984 at about 6:00 P.M., Mundan ceremony of daughter of Jabbar, was there. In that ceremony, Lallu, Govind (appellant) Prakash and Jagat had also come. Lallu and Prakash are the sons of appellant Govind and Jagat Singh is his relative. All these persons had taken liquor and were not in the senses. When they asked to go inside the temple of ‘Vaishno Mata’ then her husband Bhajan Singh asked them not to go inside the temple and also asked them to bow their heads outside the temple. On this, appellant Govind along with other accused persons started beating Bhajan Singh. Accused Lalu caused injury on the head of Bhajan Singh with axe and rest of the accused had caused injuries to Bhajan Singh with fists and kicks. Blood was also oozing out from the body of Bhajan Singh. She further stated that Ved Prakash and Chander Pal, her sons reached on the place of occurrence immediately after the incident had happened. Then she took her husband to the hospital and also lodged the report in the police station. The report was lodged in the police station on her oral dictation, that report is Ex.Ka-1. In cross-examination in Page 26, she has stated that only one blow of axe was caused to deceased Bhajan Singh. She further stated that the accused persons had not come on the place of 6 occurrence being armed with axe and Dandas because they (accused persons) had not come with the intention to kill. 13. P.W.2 is Ved Prakash who has stated that on 30.9.1984 at about 6:00 P.M., there was ceremony of Mundan of daughter of Ghanshyam and people also gathered to attend the ceremony. Appellant Govind and accused Lallu, Jagat and Prakash were also there and they had taken liquor and they were abusing near the temple. Bhajan Singh had asked the appellant and other accused persons not to abuse. Due to this reason, some hot talks took place. After that Lallu had caused injuries to Bhajan Singh with axe and rest of the accused had beaten him with fists and kicks. After the quarrel, Bhajan Singh was taken to the hospital where he died on the next day. In cross-examination in Page 29, he has stated that on the place of occurrence, Ghanshyam, Sunder, Puran and so many other persons of the locality were collected. He also stated that he was doing the business of selling the vegetables and normally he used to go from his house in the morning at 6-6:30 A.M. and used to come back his house in the evening at about 7-8 P.M. He further stated that appellant Govind Singh had no weapon in his hand. 14. P.W.3 is Chandra Pal Sharma who has stated that on 30.9.1984 at about 6:00 P.M., the Mundan ceremony of Jabar’s daughter was being organized and for attending that ceremony, appellant Govind and his other associates Lallu, Prakash and Jagat had also come. These people had taken liquor and were making noise. Bhajan Singh asked them not to make the noise as the temple of ‘Vaishno Devi’ was situated there. Bhajan Singh also told them that if they want to bow their heads, they may do so otherwise he told them to go back. Due to this reason, some hot talks between Bhajan Singh and the appellant and his accomplices took place. He further stated that 7 Bhajan Singh (deceased) was also in the drunken stage. He further stated that on that hot conversation, accused Lallu had caused injury to Bhajan Singh with axe and appellant Govind along with accused Prakash and Jagat had caused injuries with fists and kicks. After that, Bhajan Singh was taken to hospital and was admitted in the emergency ward. In cross-examination in page 34 he stated that at the time of incident, he was in the market and he was not present on the place of occurrence and he is not the eyewitness of the incident. 15. P.W.4 is S.I. Rajendra Singh Tomar, I.O. of the case who has stated that on 1.1.1985, he started the investigation of the case. During the investigation, he recorded the statements of witnesses and for the arrest of accused Lallu and Prakash, he took the steps for proceedings u/s 82/83 Cr.P.C. He filed the charge sheet against the appellant Govind. He also filed the charge sheet against the accused Lallu and Prakash on 30.6.1985 as absconders (eD[kwjh). The charge sheet filed against the appellant is Ex.Ka-2. 16. P.W.5 is Dr. D.S. Rawat who stated that on 1.10.1984, he was posted as Medical Officer in T.B. Hospital, Dehradun. On that day at 4:00 P.M., he conducted the autopsy of the dead body of Bhajan Singh. The dead body was identified by Constables Rajendra Singh and Netra Singh. The dead body was brought to him in sealed condition. He has found the ante-mortem injuries on the person of deceased Bhajan Singh which have been mentioned above in para 11 of this judgment. In his opinion, deceased Bhajan Singh died due to ante-mortem injuries mentioned above. He also proved the post-mortem report i.e. Ex.Ka-3. In cross-examination, he stated that ante-mortem injuries Nos.1,2 & 3 could not be caused by fists and kicks. 8 17. P.W.6 is S.I. Virendra Pal Singh/I.O. of the case, who has stated that on 30.9.1984, he was posted as Sub- Inspector in Kotwali Dehradun. The investigation of this case was entrusted to him. During the course of investigation, he recorded the statements of witnesses and inspected the place of occurrence and prepared site plan i.e. Ex.Ka-8. He also taken blood stained clay and plain clay in his possession and prepared a Fard i.e. Ex.Ka-5. He also took in his possession blood stained rope of the cot and plain rope and prepared a Fard i.e. Ex.Ka-6. The axe was also taken into possession and a Fard was prepared i.e. Ex.Ka-7. Sealed bundle of blood stained clay and plain clay was opened in the court and that was identified by him i.e. Ex.2 and Ex.3. The inquest report of Bhajan Singh was prepared by S.I. Kiran Veer Singh. He has identified his handwriting, the inquest report is Ex.Ka.14. On 2.10.1984, he was transferred and rest of the investigation was conducted by S.I. Rajendra Singh Tomar. 18. Thereafter, the statement of the appellant Govind was recorded u/s 313 of Cr.P.C. The oral and documentary evidence was put to him in question form, who denied the allegations made against him. However, in defence, he had not produced any oral or documentary evidence. 19. Sri I.P. Kohli, learned amicus curiae for the appellant argued and contended that P.W.2 Ved Prakash and P.W.3 Chandra Pal Sharma are not the eyewitnesses of the incident as it reveals from their statements recorded in the court. He further submitted that P.W.3 Chandra Pal Sharma has stated in his cross-examination at the time of incident, he was in the market and he was not present on the place of occurrence and he is not the eyewitness of the incident. He further submitted that P.W.1 Bhagwati Devi, complainant has stated in her statement that P.W.2 Ved Prakash and P.W.3 Chander Pal Sharma, her sons reached 9 on the place of occurrence immediately after the incident had happened. On the basis of that statement, it was submitted by learned amicus curiae that that P.W.2 Ved Prakash and P.W.3 Chander Pal Sharma are not the eyewitnesses of the incident, as they have not seen the incident. 20. From the statements of P.W.1 Bhagwati Devi, P.W.2 Ved Prakash and P.W.3 Chander Pal Sharma as narrated above, it is clear that these two witnesses i.e. P.W.2 Ved Prakash and P.W.3 Chander Pal Sharma are not the eyewitnesses and they have not seen the incident in question. 21. Learned amicus curiae further submitted that now there is solitary evidence against the appellant i.e. of P.W.1 Bhagwati Devi and on the basis of the above-said evidence, it does not inspire any implicit confidence. In support of this argument, he has cited a judgment reported in 2003 (1) Supreme Court Cases, 465 “Joseph Vs. State of Kerala”. He has relied upon para 13 of this judgment 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 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.” 10 22. Learned amicus curiae for the appellant in view of the above-said quoted judgment submitted that the evidence of the solitary witness should be accepted with caution. He further submitted that it is permissible 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. 23. For the discussion made above, the evidence of P.W.1 Bhagwati Devi does not inspire any confidence and hence, her evidence is not reliable and believable evidence. Hence, no reliance can be put on the statement of P.W.1 Bhagwati Devi. Therefore, the conviction of the appellant above-said on the statement and evidence of P.W.1 Bhagwati Devi is not justified and as per law. 24. It was further argued by learned amicus curiae that as per the statement of P.W.2 Ved Prakash, he has stated that on the place of occurrence, Ghanshyam, Sunder, Puran and so many other persons of the locality were also collected who were the eyewitnesses but they were not produced by the prosecution. By not producing the independent witnesses by the prosecution, it also creates a reasonable doubt in the prosecution story. The argument of learned amicus curiae has got force as in the statement of P.W.2 Ved Prakash, it has come that Ghanshyam, Sunder, Puran and so many other persons of the locality were collected, however they were not produced by the prosecution, as such prosecution story seems to be doubtful. 25. Learned amicus curiae further argued that in the statement of P.W.1 Bhagwati Devi, it has come that only one injury, that too of axe, was caused to deceased Bhajan Singh by co-accused Lallu and it was also shown that rest of the co-accused persons had caused injuries to deceased 11 Bhajan Singh with fists and kicks. He further submitted that in the post-mortem report, there is no injury of fists and kicks which shows the presence of the appellant on the place of occurrence to be doubtful as in the post-mortem report Ex.Ka-3, Bhajan Singh died due to the ante-mortem injuries caused on his head by axe and the axe was shown in the hand of co-accused Lallu. The argument of learned amicus curiae bears weight. In the post-mortem report Ex.Ka-3, there is no injury of fists and kicks on the person of deceased Bhajan Singh and only injury is on the head which could be caused by axe as per the opinion of P.W.5 Dr.D.S. Rawat and axe was shown in the hand of Lallu who was not arrested by the police and even the charge sheet was filed against him as absconder. Even P.W.5 Dr. D.S. Rawat has stated in his cross-examination that ante- mortem injuries Nos.1,2 & 3 to the deceased Bhajan Singh could not be caused by fists and kicks. As such, it creates a doubt in the prosecution case about the presence of the appellant on the place of occurrence as well as the participation of the appellant in the aforesaid crime for causing injuries to deceased Bhajan Singh. 26. Learn ed amicus curiae for the appellant further submitted that in the statement of P.W.2 Ved Prakash, it has come that appellant was having no weapon in his hand like Danda or Lathi and Bhajan Singh died due to injuries caused by axe and the axe was shown in the hand of Lallu. Learned brief holder for the State also submitted that accused Lallu was not arrested by the police and the charge sheet was filed against him as absconder. From the above said discussion, it reveals that main accused Lallu was not arrested by the police and charge sheet was submitted against him as 12 absconder (eD[kwjh) which shows the conduct of investigating officer also. 27. From the above-said discussion and in view of the facts and circumstances of the case, the prosecution has failed to prove its case against the appellant u/s 304 (Part II) IPC and the learned trial court was not correct and justified in convicting and sentencing the appellant Govind under the above-said offence. 28. In view of the above, the appeal is allowed. The judgment and order dated 4.5.1989 passed by Ist Additional Sessions Judge, Dehradun convicting the appellant u/s 304 (Part II) IPC and sentencing him for two years’ imprisonment is hereby set aside. The appellant is on bail. He needs not surrender. His bail bonds are cancelled. (Dharam Veer, J.) Rajeev Dang