IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 131 of 2001 (Old No. 3213 of 1999) Amar Singh … Appellant Vs State of U.P. … Opposite Party (Now Uttarakhand) Sri P.S. Bohara, learned counsel for the appellant Sri Prabhakar Joshi, learned Brief Holder for the State/respondent Coram: Hon’ble B.C. Kandpal,J. Hon’ble Dharam Veer, J. [(Judgment Per: B.C. Kandpal, J. (Oral)] This appeal has been preferred by the accused/appellant Amar Singh against the Judgment and order dated 30.11.1999 passed by learned Sessions Judge, Pithoragarh in Sessions Trial No. 28 of 1993, State Vs Amar Singh & another thereby convicting the appellant under Sections 302 and 201 of I.P.C. and sentencing him for life imprisonment. 2. Brief facts of the prosecution case are that the occurrence is alleged to have taken place on 14.04.1993 at about 03:00 p.m. in the Abadi side of Tok Ramtara, Village Jamrari, Patwari Circle Gogana, District Pithoragarh near the shop of the complainant – Pushkar Singh (P.W.1). Pushkar Singh is the brother of the deceased – Narendra Singh who lodged the First Information Report on 14.04.1993. It has alleged in the report that Pushkar Singh was having a tea stall near the shop and house of accused – Diwan Singh near hamlet Ramtara and Amar Singh wanted to usurp the same. For the reason he was having enmity towards the complainant and his brother Narendra Singh. On 14.04.1993 at about 03:00 p.m., Narendra Singh was standing near the tea stall 2 whereby Amar Singh armed with D.B.B.L. gun along with Diwan Singh came there and stated to hurl-filthy abuses to him. On this hue and cry, Tej Singh, Lal Singh, Hayat Singh, the complainant and others attracted there whereby Diwarn Singh exhorted Amar Singh to commit the murder of Narendra Singh and Amar Singh in order to commit the murder of Narendra Singh shot a fire at him, the result of which was that Narendra Singh succumbed to his injuries on the spot. The place of occurrence is situated by the bank of river. After committing the murder of Narendra Singh, the accused dragged the dead body and thrown into the river and fled away. Pushkar Singh and other witnesses tried to find out the dead body of Narendra Singh, but of no use. The place of occurrence is about 30 kms away from Pithoragarh. Thereafter, on the next day i.e. 15.04.1993 at 11:00 a.m., the complainant filed the report at police station concerned, whereby chick F.I.R. (Ext. Ka 4) was prepared and the case was registered in the G.D. (Ext. Ka. 6). The investigation of the case was entrusted to Prem Chandra Verma – S.I., who after copying out the necessary papers in the case diary recorded the statement under Section 161 Cr.P.C. of the complainant and scribe the First Information Report. Thereafter, he recovered the dead body of the deceased – Narendra Singh from the river and after appointing Panchas prepared the Panchayatnama (Ext. Ka. 7) and sealed the dead body. He also prepared formal documents i.e. letter to C.M.O., photolash and challan lash and sample of seal. After bringing out the dead body was kept on the bank of river where some blood fell on the ground, he took the sample and blood stained earth in separate containers, prepared memo and sealed the same in different containers. He also prepared the site plan (Ext. Ka. 12) and sent the body for autopsy to District Hospital, Pithoragarh. On the same day, he arrested the 3 accused – Amar Singh. Thereafter, he was transferred and the investigation of the case was entrusted to C.M.S. Rawat – S.I., who recorded the statement of the witnesses Hayat Singh 3. Dr. P.K. Gupta (P.W.6) conducted the postmortem of the deceased on 16.04.1993 at 11:30 a.m., when he was posted at District Hospital, Pithoragarh as Medical Officer. He has opined that the deceased was young boy of 18 years of age and of average built. His eyes were closed and mouth was half opened. The teeth were closed and blood was coming out from the mouth. Rigor mortis passed off from neck and upper extremities. He has found following ante-mortem injuries on the body of the deceased:- 1. Abrasion 7cm X 2cm present on the right lumbar region of back. 2. Lacerated wound 3cm X 2cm X cavity deep oval in shape present on the right lumbar region. Margins inverted. Direction obliquely upwards towards left shoulder. Scorching and tattooing present. 3. Abrasion mark 12.5cm X 3½ cm horizontal in direction present on the right lumber region of back 5 cm below the injuries No. 2. 4. Lacerated wound 3cm X 2cm X cavity deep oval in shape present above the right iliac crest 3cm below the injury No. 3. Margins inverted. Direction obliquely upwards. Tattooing and Scorching present. 5. Lacerated wound 4cm X 2½cm X muscle deep oval in shape present on the left intrascapular region. Margins inverted. No blackening nd tattooing present. No scorching present. 4 6. Lacerated wound 3½cm X 2cm X muscle deep Margins inverted. Oval in shape. Direction obliquely downwards. No blackening or tattooing or swelling present. 7. Two abrasion marks size 2cm X 1cm and 1.5cm X 1cm respectively present. 4cm apart on the left supra scapular region. Clot not present. 8. Abrasion mark 4cm X 1 cm vertical in direction present on the center of lower part of the back. 4. He has further stated in his deposition that right pleura was normal and left pleura torn at the lower end. Right lung was congested. Lobe of left lung was torn to pieces and was contested and a hole was present in the heart from right ventricles, to the left vertical extending upto the origin of the left aorta. The peritoneum was torn and congested. Mesentry was also congested and was full of blood mixed with clots. Piece of cloth found entangled with mesentry in the abdominal cavity and pieces of bones present in the cavity. Undigested food material about 300 ml was present in the stomach cavity. The spleen was torn into pieces. Left kidney also torn and congested. Right kidney was also torn into so many pieces. He has also opined that the deceased died on account of ante- mortem injuries, shock and hemorrhage on 14.04.1993 at 03:00 p.m. 5. The Investigation Officer – Prem Chandra Verma – S.I. was transferred and further investigation of the case was entrusted to S.I. - C.M.S. Rawat, who recorded the statement of the witness Hayat Singh and submitted the chargesheet against the accused persons (Ext. Ka. 14). 5 6. After submission of chargesheet, the learned Chief Judicial Magistrate, Pithoragarh vide order dated 18.10.1993, committed the case to the court of Sessions for trial. Thereafter, on 02.12.1993, the learned Sessions Judge, Pithoragarh framed the charges under Sections 302 and 201/34 of I.P.C. against the accused – Diwan Singh and under Sections 302/34 and 201/34 of I.P.C. against the accused/appellant – Amar Singh. 7. In order to support its case, the prosecution has produced Pushkar Singh (P.W.1) – complainant, Dan Singh (P.W.2), Tej Singh (P.W.3), Lal Singh (P.W.4), Hayat Singh (P.W.5), Dr. P.K. Gupta (P.W.6) – who conducted the postmortem of the body of the deceased and Prem Chandra Verma (P.W.7). 8. The accused persons in their statement under Section 313 Cr.P.C. denied their involvement in the commission of crime. Accused – Diwan Singh has stated in his deposition that though he does not know as to why he has been falsely implicated in this case, but the fact is that he has committed no offence. Accused – Amar Singh (present appellant) has stated that he has been falsely implicated in this case as he was having an old enmity with Pushkar Singh and his family. However, they did not adduce any documentary evidence in support of their case. 9. The trial court after having considered the material available on record and hearing learned counsel for the parties convicted the accused/appellant Amar Singh, under Sections 302 and 201 of I.P.C. and sentencing him to undergo for life imprisonment and acquitted another accused – Diwan Singh 6 for the offence punishable under Section 302/34 and 201/34 I.P.C. vide judgment and order dated 30.11.2009. 10. Feeling aggrieved by the aforesaid judgment and order, the convict/appellant has preferred this appeal before this Court, which has been placed before us for disposal. 11. Heard Sri P.S. Bohra, learned counsel for the appellant, Sri Prabhakar Joshi, learned Brief Holder for the State and perused th erecord. 12. The incident in this case is alleged to have taken place at about 03:00 p.m. on 14.04.1993 in front of the shop of complainant – Pushkar Singh. The report was lodged at police station Kotwali Pithoragarh on 15.04.1993 at about 11 a.m. The distance of the police station from the place of occurrence is about 30 kms. Learned counsel for the appellant has submitted before the Court that there is an inordinate delay in lodging the First Information Report and this delay has created doubt on the prosecution case. 13. We do not find any force in this argument. The manner in which the incident is alleged to have taken place and the dead body was thrown in the river after committing the murder of the deceased – Narender Singh, this delay in lodging the First Information Report was justified. Further, the complainant has explained the delay that when the body was thrown in the river, the complainant and other persons tried to search the body, but they could not trace out the body, therefore, on the next day at about 11:00 a.m., he lodged the First Information Report at police station Kotwali Pithoragarh, which is at a distance of 30 kms. Therefore, we are unable to 7 accept the arguments that there is an inordinate delay in lodging the First Information Report. 14. The next important point which needs a deep consideration in the matter is as to whether the accused and another associate of the accused – Diwan Singh who has been assigned the role of extortion were actually apprehended by the complainant and other persons at the spot and thereafter, were handed over to the police at the time of lodging the First Information Report or not. 15. The First Information Report indicates that the accused – Amar Singh and Diwan Singh after committing the crime made their escape good from the place of occurrence, but Pushkar Singh (P.W.1) who is the brother of the deceased and the complainant in this case when examined before the trial court has categorically stated in his examination-in-chief that Amar Singh and Diwan Singh were apprehended at the spot by the complainant and Pradhan – Nar Singh. He has further deposed in his statement that Diwan Singh, another accused helped the complainant in apprehending the accused – Amar Singh at the spot. He has also stated that the complainant and other persons took the accused to the police station and handed over him to the police at the time of lodging the First Information Report. In the cross examination, this witness has stated that Diwan Singh has no role in the commission of the crime and rather he helped the complainant to take the dead body from the spot to Pithoragarh. It would be immaterial to discuss the matter of co-accused – Diwan Singh who has already been acquitted by the trial court in the light of the evidence adduced by the prosecution. However, the contradiction in the statement of Pushkar Singh (P.W.1) makes the picture doubtful. Once, the 8 specific role has been assigned to both the persons i.e. Amar Singh and Diwan Singh in the First Information Report, then the version given by the witness before the trial court appears to be a result of after thought. It is also worthy to mention here that the prosecution examined four eyewitnesses in this case, but apart of Pushkar Singh (P.W.1), rest of the three eyewitnesses have turned hostile and they have not supported the prosecution case in any manner. The case, therefore, rests upon the sole testimony of the complainant – Pushkar Singh and we have to examine as to whether the testimony of this witness - Pushkar Singh is reliable or not and on the basis of the testimony of Pushkar Singh, whether the conviction of accused/appellant – Amar Singh could be warranted or not. We come to the point of the arrest of the accused – Amar Singh again and in case, the deposition of the Investigating Officer is taken into consideration then it reveals that accused – Amar Singh was arrested by the police on 15.04.1993 at about 07:00 – 07:30 p.m. The Investigating Officer in the cross examination has specifically denied that the accused – Amar Singh was brought by the complainant at the police station at the time of lodging the First Information Report. He has rather stated that he himself arrested the accused/appellant Amar Singh on 15.04.1993 at about 07:00 – 07:30 p.m. 16. Learned counsel appearing on behalf of the State has submitted that the arrest of the accused – Amar Singh on the next day by the Investigating Officer supports the case of the complainant as the complainant has given the version in the First Information Report that accused/appellant made his escape good from the place of occurrence after committing the crime. In case, this argument is accepted, then we have no option except to consider that there is no eyewitness to 9 support the prosecution case now. The prosecution case on the point of the accused Amar Singh has become seriously doubtful and we are of the definite view that the genesis of the prosecution case comes within the ambit of serious clouds of doubt. 17. There is no doubt that the deceased died on account of the firearm injuries. The doctor who conducted the postmortem found firearm injuries on the person of the deceased, but it is to be seen on the basis of the strength of evidence available on record as to whether the firearm injuries were actually made by the gun attributed in the hand of the accused at the time of commission of crime or not. Again, the evidence of Investigating Officer shows that when he arrested the accused/appellant – Amar Singh on 15.04.1993 at about 07:00-07:30 p.m., he also took the gun, which was in possession of the accused in his custody. The foremost point to consider in this case is that the Investigating Officer did not find any smell of sulphur from the barrel of the gun. He also found himself unable to tell as to whether any fire was shot by the gun recovered from the possession of the accused or not. 18. This point is note worthy that the gun, which is allegedly recovered from the possession of the accused was not sent for examination to ballistic expert. Had the gun been sent to ballistic expert then there could have been any opinion with regard to this aspect as to whether any fire was shot from the alleged gun or not? But in the absence of any evidence in this regard, we find ourselves unable to accept the theory advanced by the prosecution as to whether the fire was actually shot by the gun, which has been attributed to the accused at the time of the commission of crime. 10 19. For the reasons stated above, we are of the view that the prosecution has utterly failed in establishing the guilt of the accused/appellant – Amar Singh beyond reasonable doubt. We also come to the conclusion that the prosecution could not establish the manner of the incident as has been alleged by it. We don’t have any other alternative except to record the finding of the acquittal against the accused person in the light of the evidence available on record. 20. Accordingly, the appeal is allowed. The impugned judgment and order dated 30.11.1999, convicting the accused/appellant under Sections 302 and 201 of I.P.C. is hereby set aside. The appellant is on bail. He need not surrender. His bail bonds are cancelled and sureties are discharged. (Dharam Veer, J.) (B.C. Kandpal, J.) 16.11.2009 A SWAL