IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Government Appeal No. 1894 OF 2001 (Old No. 401 of 1999) State of Uttar Pradesh (Now State of Uttarakhand) ………….Appellant. Versus Irshad …..Respondent. Present:- Sri B.S. Parihar, Brief Holder for the State/appellant. Sri T.S. Phartiyal, Advocate / Amicus Curiae for the respondent. Coram: Hon’ble Prafulla C. Pant, J. Hon’ble Sudhanshu Dhulia, J. Prafulla C. Pant, J. (Oral) 1. This appeal, preferred under Section 378 of Code of Criminal Procedure, 1973 (for short, CrPC), is directed against judgment and order dated 29.9.1998 passed by Special Judge/Addl. Sessions Judge, Nainital, in Sessions Trial No. 240 of 1994, whereby respondent Irshad has been acquitted of charge of offences punishable under Sections 302 and 201 of Indian Penal Code, 1860 (for short, IPC). 2. Heard learned counsel for the parties, and perused the lower court record. 3. Prosecution story, in brief, is that on 12.5.1994, Sardar Gurdeep Singh (deceased), brother of informant Amarjeet Singh (PW1) had gone to his transport company situated at Kashipur Road in Ram Nagar. He used to come by 10 P.M. every day, but on that day, he did not come back home. On this, informant and others made search for him. On 13.5.1994 at about 7 A.M., dead body of Gurdeep Singh was found in a naked condition behind the shop of accused/respondent Irshad. On this, 2 informant suspected commission of crime by accused/respondent Irshad and Hanif (PW4). He (PW1) lodged First Information Report (Exhibit A-1) on 13.5.1994 at 7:45 A.M. at Police Station Ram Nagar against the aforesaid two accused relating to offences punishable under Sections 302 and 201 IPC. PW7 Sub Inspector J.P. Naithani investigated the crime. He went to the spot, and got prepared Inquest Report (Exhibit A-2) and Site Plan (Exhibit A-7). He also took the blood stained soil and simple soil from the place of incident, and prepared Memorandum of the same. The Investigating Officer further got prepared sketch of the dead body (Exhibit A-11), Police Form No. 13 (Exhibit A- 12), Sample Seal (Exhibit-13) and letter to Chief Medical Officer (Exhibit A-10), requesting him for post-mortem examination. PW5 Dr. P.K. Dikshit conducted post mortem examination on the dead body of Gurdeep Singh, and prepared Autopsy Report (Exhibit A-5). He recorded as many as eight ante-mortem injuries, including seven incised wounds, and opined that shock and haemorrhage, as a result of ante-mortem injuries, was the cause of death. After the arrest of accused/respondent Irshad, the knife used in the crime and the cloths of the deceased were recovered. On completion of investigation, a charge sheet (Exhibit A-14) was filed against Irshad by the Investigating Officer for his trial in respect of offences punishable under Sections 302 and 201 IPC. 4. The Additional Chief Judicial Magistrate, Kashipur, on receipt of the charge-sheet, after giving necessary copies to the accused as required under Section 207 of CrPC, committed the case to the court of Sessions Judge, 3 Nainital. Learned Additional Sessions Judge, to whom the case was transferred, after hearing the parties, framed charge of offences punishable under Sections 302 and 201 IPC against accused/respondent Irshad, to which he pleaded not guilty, and claimed to be tried. On this, prosecution got examined PW1 Amarjeet Singh (informant), PW2 Anurag Sharma, witness of recovery of knife and cloths of the deceased, PW3 Rajjan Bhatnagar, another witness of recovery of knife and cloths of the deceased, PW4 Hanif (declared hostile), PW5 Dr. P.K. Dikshit, who conducted post mortem examination, PW6 Sub Inspector Mohan Giri, in whose presence First Information Report was lodged, and PW7 Sub Inspector J.P. Naithani, who investigated the crime. Oral and documentary evidence was put to the accused under Section 313 of CrPC, in reply to which, it was alleged by the accused that he has been falsely implicated. However, in defence no evidence was adduced. The trial court, after hearing the parties, found that the prosecution has not proved the charge of offences punishable under Sections 302 and 201 IPC against the accused Irshad, and acquitted him of the charge. Aggrieved by said judgment and order dated 29.9.1998, passed by Special Judge / Additional Sessions Judge, Nainital, in Sessions Trial No. 240 of 1994, this appeal was filed by the State before Allahabad High Court on 9.2.1999. The appeal is received by this Court under Section 35 of U.P. Re-organisation Act, 2000 (Central Act 29 of 2000), for its disposal. Leave was granted by this Court, and appeal was admitted in the year 2007. Several notices were issued to the respondent, but no one turned up on his behalf, as such Sri T.S. Phartiyal, Advocate was appointed Amicus Curiae to assist the court on behalf of the respondent. 4 5. Before further discussion, we think it just and proper to mention the ante mortem injuries found on the person of the deceased by PW5 Dr. P.K. Dikshit, who conducted post-mortem examination on dead body of Gurdeep Singh, and prepared Autopsy Report (Exhibit A- 5). The ante-mortem injuries, mentioned in the Autopsy Report, are reproduced below:- “1. Multiple incised wound (11) in an area of 30 cm X 25 cm involving head, forehead, both temples and ears, maximum 8 cm X 1 cm to minimum 2 cm X 0.5 cm bone deep, bone cut (Parietal bone left side cut), and left ear cut. 2. Incised wound 16 cm X 8 cm on front of neck and both sides of neck. All the structure under the injury are cut except vertebra. 3. Incised wound 10 cm X 6 cm X bone deep. On the front of right shoulder joint. 4. Incised wound 10 cm X 2 cm on the right arm 12 cm below Injury No. 3. 5. Incised wound 6 cm X 3 cm X muscle deep on right forearm 8 cm above right wrist joint. 6. Incised wound 5 cm X 1 cm X muscle deep on the left palm. 7. Incised wound 8 cm X 12 cm at the root of penis separating penis and scrotum from rest of the body. 5 8. Multiple contusions varying 12 cm X 1 cm to 5 cm X 1 cm, present on the whole of front of abdomen. 6. The above ante mortem injuries show that the deceased (Gurdeep Singh) was murdered brutally. The Medical Officer has opined in the Autopsy report that the deceased had died of shock and haemorrhage as a result of ante mortem injuries. Now we have to examine, whether the trial court has wrongly held that the prosecution failed to prove charge of offences punishable under Sections 302 and 201 IPC against respondent Irshad. 7. It is a case of circumstantial evidence. There is no eye witness account of commission of murder by the accused / respondent Irshad. 8. PW1 informant Amarjeet Singh, brother of the deceased, has stated that his brother Gurdeep Singh had gone to his shop on 12.5.1994 with his son Balvinder Singh (not examined). According to this witness, Balvinder Singh came back to his house, but told that his father has not come. According to PW1 Amarjeet Singh, a search was made for Gurdeep Singh, and his dead body was found on next day behind the shop of accused / respondent Irshad, where it was lying in a naked condition. The witness further suggests that he lodged the First Information Report (Exhibit A-1) at Police Station – Ram Nagar. This witness further proved his signatures on the Inquest Report (Exhibit A-2), prepared by the Police thereafter. He has also proved that Memorandum (Exhibit A-3), prepared relating to simple 6 soil and blood stained soil taken by the Investigating Officer from the spot. 9. PW2 Anurag Sharma and PW3 Rajjan Bhatnagar have stated that on 13.5.1994, in their presence, accused Irshad got recovered knife and cloths of the deceased, on the basis of which, Memorandum (Exhibit A-4) was prepared. 10. PW6 Sub Inspector Mohan Giri, who is a formal witness has simply stated that he got prepared Check Report of the First Information Report, and also made necessary entries in the General Diary. 11. PW7 Sub Inspector J.P. Naithani (Investigating Officer) has stated that the accused respondent admitted his guilt, and got recovered the knife and the cloths, as mentioned above. However, the statement to the effect that accused made confessional statement to Police is not admissible in evidence, as provided in Section 26 of the Indian Evidence Act, 1872. 12. We have to see, whether chain of circumstances, as against the accused / respondent Irshad, is complete to rule out that no one else, but accused / respondent had committed the crime. Perusal of the evidence on record shows that prosecution has proved only one fact that the dead body of deceased was recovered from a pit behind the shop of accused/respondent Irshad, but Site Plan A-7 shows that the place shown by letter “A” is not only behind the shop of accused Irshad, but it is also behind the shops of deceased, Shiv Bhojanalaya and one other person. The prosecution has also attempted to prove the 7 recovery, allegedly made on pointing out of accused, of the knife and the cloths of the deceased. However, the chain of circumstances does not appear to be complete for the following reasons:- (I) The prosecution has come with a story that deceased had gone to recover rent from the shop of accused/respondent Irshad, who did not pay rent, on which deceased slapped the accused, and on retaliation accused committed murder of the deceased. However, PW1 Amarjeet Singh (informant) has admitted in the cross-examination that neither he, nor his brother Gurdeep Singh was the owner of the shop, in which Irshad used to run a motor vehicle repairing shop. There is nothing on the record to suggest that the deceased was landlord and the accused was his tenant. (II) Though PW2 Anurag Sharma and PW3 Rajjan Bhatnagar have stated that recovery of knife and cloths of the deceased was made on pointing out of accused Irshad, but it appears that the said items were not sent for the analysis to the Forensic Expert. PW7 J.P. Naithani has admitted in cross examination that the blood stained articles were not sent for chemical analysis. Had there been a direct evidence of eye-witnesses, said lapse could have been said to be not material, but in the present case, said lapse has its importance. 8 (III) Balvinder Singh, son of Gurdeep Singh, regarding whom it has come on the record that he accompanied Gurdeep Singh on the day of incident and came back in the night at about 10 P.M., was the most important witness, who could have stated as to where Gurdeep Singh had gone, and with whom he was last seen. For the reasons best known to the prosecution, Balvinder Singh was not got examined to throw light on the issue. (IV) Hanif – a co-accused, named in the First Information Report, appears to have been made witness as against accused Irshad, against whom charge-sheet was filed. However, said witness (PW4-Hanif) did not support the prosecution story, and declared hostile. This witness, PW4 Hanif, was aged 16 years at the time his statement was recorded by the trial court in the year 1998. He states that he does not know Billey Babu alias Gurdeep Singh, nor he saw him slapping accused Irshad. 13. For the reasons, as discussed above, we are of the view that the trial court has committed no illegality in acquitting the accused after appreciating the evidence on record. From the evidence on record, it cannot be said that charge against accused Irshad stands proved beyond reasonable doubt relating to commission of murder of Gurdeep Singh by the accused, and that he caused disappearance of the evidence. 9 14. Therefore, this appeal against acquittal requires no interference with the view taken by the trial court in acquitting the accused. Accordingly, the appeal is dismissed. Lower court record be sent back. (Sudhanshu Dhulia, J.) (Prafulla C. Pant, J.) 27.12.2010 Rathour