Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 252 of 2003 Sumer @ Sumera, s/o Moti Gadaria and Rakesh Pandit @ Rakesh Tewari s/o Ram Nagina ………Appellants versus State of Uttarakhand ……Opposite Party alongwith Criminal Appeal No. 273 of 2007 Brijlal @ Lalla, s/o Moti Ram ………Appellant versus State of Uttarakhand ……Opposite Party Mr. A.S. Gill, Advocate assisted by Mr. Milind Raj, Adv. for the appellants. Mr. Amit Bhatt, Addl. Government Advocate for the State / respondent. JUDGMENT Coram: Hon’ble Barin Ghosh, C.J. Hon’ble U.C. Dhyani, J. Per: U.C. Dhyani, J. An F.I.R. was lodged by Harbansh Singh s/o Bachan Singh on 19-5-2000 at 4.30 p.m. complaining that when he along with his brother Kuldeep Singh @ Deepa were returning from Rudrapur Court on 19-05- 2 2000 where they had gone in connection with the pairavi of a case, his neighbors Sumera, Pyara, Lalla, all sons of Moti Gadaria and Rakesh Pandit inflicted injuries with sharp edged weapons on his brother Deepa, who started bleeding. Deepa was taken to hospital but could not survive. The occurrence was witnessed by Daljit Singh and Harjinder Singh. The accused persons were armed with kanta (a sharp edged weapon). The motive attributed to murder was a dispute between the parties over a piece of land. 2. After conducting the investigation, the Investigating Officer submitted charge sheets against the accused persons Sumer @ Sumera, Rakesh Tewari @ Rakesh Pandit, Brijlal @ Lalla and Pyara for the offence punishable u/s 302 I.P.C. Charge sheets u/s 25 Arms Act were also submitted against accused Sumer @ Sumera & Brijlal @ Lalla. 3. Charges were framed by the Trial Court against the accused persons as above. They pleaded not guilty and claim to be tried. As many as 8 witnesses were produced on behalf of the prosecution. Statements of the accused u/s 313 Cr.P.C. were taken. All the accused stated that they have been falsely implicated on account of enmity. No evidence was offered in defence. 4. The accused persons were found guilty of the charges framed against them and accordingly they were convicted. Accused/appellants Sumera, Brijlal @ 3 Lalla and Rakesh Tewari have been convicted for the offence punishable u/s 302 I.P.C. They were awarded rigorous imprisonment for life and a fine of `5,000/-, in default of which, each was directed to undergo further rigorous imprisonment for one year. Appellants Sumera and Brijlal @ Lalla were also convicted for the offence punishable u/s 25 Arms Act and they were awarded rigorous imprisonment for one year and a fine of `500/-, in default of which he was directed to undergo rigorous imprisonment for one month. 5. Aggrieved against the said orders, the accused persons/ appellants have preferred these criminal appeals. 6. We have heard learned counsel for the appellants, learned Additional Government Advocate and perused the lower court record. 7. The occurrence was alleged to have taken place on 19-5-2000 at 3.45 p.m. and F.I.R. had been lodged in P.S. Kichha, District- Udham Singh Nagar on the same date at 4.30 p.m. The distance between the place of occurrence and the police station is half kilometer. Thus, there is no delay in lodging the F.I.R. 8. P.W. -1 Harbansh Singh is the complainant. In his examination in chief he has proved his complaint Exhibit Ka-1 and has also proved the contents enumerated in F.I.R. According to him, accused persons were armed with sharp edged weapons and they killed his brother Deepa with those weapons. 4 There was a dispute with the accused persons/appellants over a piece of land. The complainant got the complaint written by one Harbinder Singh. This witness acknowledged his signatures on Exhibit Ka-1. 9. In the cross examination, P.W.-1 Harbansh Singh has admitted that he had come from jail to adduce evidence in this case. He was accused in connection with the murder of Pyara. It is the same Pyara who was an accused in the present case (since Pyara had died during the trial therefore the case against him stood abated). He has also admitted that their case (pertaining to land) was not listed for hearing on the day this incident took place. He has also said that the appellants suddenly came out from the post office and they inflicted injuries on his brother with kanta. He is not aware whether the employees of the postal department were also present there or not. 10. P.W.-1 Harbansh Singh has also said in the cross examination that witnesses Harjinder Singh and Daljeet Singh arrived on the scene of occurrence on his raising alarm. He has also said that Harjinder resided at a distance of ¾ kilometer from the place of occurrence. Daljeet resided at a distance of 1 kilometer from the place of occurrence. He has also admitted that there was no other witness, besides them. Learned counsel for the appellants have submitted that they are the chance witnesses. Since the facts and circumstances 5 have to be seen in totality, therefore, this court, as of now, reserves its comments on this aspect of the case. 11. P.W.-1 Harbansh Singh has also admitted in cross examination that there are many shops near the place of occurrence. The complainant and the victim were known to the shopkeepers. The Investigating Officer had taken simple soil and blood stained soil from the place of incident. He had no enmity with one Chumma Pandit. He did not know the name of father of Rakesh Pandit. The complainant admitted that he did not try to save his brother. He only raised alarm. No injury was caused to him. His clothes were not stained with blood. Learned counsel for the appellants have submitted that the complainant was not present when the alleged occurrence took place. 12. P.W.-2 Dr. B.D. Joshi had conducted post mortem on the body of deceased Kuldeep @ Deepa on 20-5-2000 at 12.15 a.m. under the orders of the District Magistrate, Udham Singh Nagar and City Magistrate, Haldwani. He had found the following antimortem injuries on the body of the deceased: (i) Tips of four fingers of rt. Hand cut through missing. (ii) Incised wound rt. wrists cut through & through a part of shin remaining on radial end of wrist. 6 (iii) Incised wound 6.0 x 3.0 cm. x muscle & bone deep on dorsal aspect of right arm 2.0 cm. from injury no. 2. (iv) Incised wound 3.0 x 1.5 cm. x bone deep on dorsal aspect of back of lt. thumb. (v) Incised wound 5.0 x 2.5 cm. On dorsal aspect of lt. Hand bone deep between index and middle finger. (vi) Incised wound 5.0 x 2.0 cm. On dorsal aspect of lt. Hand bone deep, between middle finger. (vii) Incised wound 4.5 x 2.0 cm. x bone deep on palm of lt. hand extending from thumb towards little finger. (viii) Incised wound 4.0 x 1.5 cm. On lateral aspect of rt. Chest 6.0 cm. below from oxilla oxillary line. (ix) Incised wound 10.0 x 2.5 cm. x muscle deep on the upper part of the neck rt. Side lateral aspect low of ear pinna cut. (x) Incised wound 5.5 cm. x 1.5 cm. on lt. shoulder muscle deep 3.0 cm. from neck. (xi) Incised wound 5.0 x 1.5 cm. x muscle deep on lt. back 10 cm. below injury no. 10. 7 (xii) Incised wound 4.0 cm. x 1.5 cm. x muscle deep on post oxillary line 16.0 below from oxilla lt. side. (xiii) Incised wound 10.00 x 2.5 cm. bone deep on the back of neck in upper part. (xiv) Incised wound 5.0 x 1.5 cm. x. bone on the occipital part of head. (xv) Incised wound 5.0 x 1.5 cm. on oxillary line lt. side 15 cm. front oxilla. 13. The doctor has proved his report Exhibit Ka-2. According to the doctor cause of death of the victim was shock and hemorrhage as a result of antimortem injuries. In the cross examination he has admitted that the normal time of conducting post mortem is upto 5.00 p.m. 14. P.W. 3 Harjinder Singh is the eyewitness. He has supported the evidence of P.W. 1 Harbansh Singh. He has said that he alongwith Daljeet Singh were present on the spot. 15. In the cross examination, P.W.-3 Harjinder Singh has admitted that he had come to depose from the jail. He was also accused in connection with murder of Pyara (who was an accused in the instant case). He has also admitted that Kichha market was open on the date of incident. He had seen the victim from railway crossing. Victim Deepa was surrounded by all the four accused persons. They inflicted injuries 8 on him. This witness did not try to save Deepa. He has also admitted that none came to save Deepa on the place of occurrence. He has also said that Deepa was lifted by him and Harbansh Singh but his clothes were not stained with blood. He has also admitted that Harbansh Singh and deceased Deepa are his real maternal uncles. Learned counsel for the appellants has submitted that P.W.-3 Harjinder Singh was not present when the alleged occurrence took place. He is chance witness as well as an interested witness. 16. P.W.-4 Daljeet Singh in his examination in chief has supported the prosecution story except the participation of accused Rakesh Tewari@ Rakesh Pandit. He was not aware whether Rakesh Pandit also participated in the crime or not. He did not know the fourth accused. He is also a witness to panchnama and also a witness to memo of collecting blood stained soil and simple soil. In his cross examination, he was very specific in saying that Rakesh Pandit did not participate in the crime, he was not present on the spot. This witness did not intervene to save victim. The Investigating Officer had taken simple concrete and blood stained concrete in his presence. He has admitted that he had filed a complaint u/s 324 Cr.P.C. against Sumera, Pyara and others. He did not remember whether he had given the statement that he did not know Kuldeep @ Deepa. When the said file was summoned by the Trial Court, and this witness was confronted with his statement given before C.J.M., he 9 said that his statement had wrongly been recorded. This witness had given the statement before C.J.M. that “I don’t know Kuldeep @ Deepa. He has been killed. I had read this in newspaper.” 17. Now let us take the arguments advanced on behalf of learned counsel for the appellants and learned A.G.A. Learned counsel for the appellants submitted that P.W.-3 Harjinder Singh and P.W.-4 Daljeet Singh were chance witnesses. Learned counsel for the appellants also submitted that the complainant was not present when the alleged occurrence took place. It was also submitted that P.W.-3 Harjinder Singh is chance witness as well as interested witness. The testimony of P.W. 1 Harbansh Singh, P.W.-3 Harjinder Singh and P.W.-4 Daljeet Singh does not appear to be credible in the estimation of this court. Two witnesses are accused in the case of murder of one of the alleged assailant and their testimony is very shaky. They are chance witnesses. Out of three eyewitnesses, two are interested witnesses. In other words, one is the real brother and other is a close relative. Except the real brother of the victim, the others are chance witnesses. Medical evidence has not supported the testimony of eyewitnesses, so far as the time of killing is concerned. The principal reasons for not accepting their evidence have also been highlighted by us in para 26 of this judgment. In this case postmortem on the body of the deceased was conducted after 8 hours of death. It is unwritten rule that written orders of the District 10 Magistrate are required to conduct postmortem after sunset. No such order of District Magistrate has been filed. 18. Learned counsel for the appellants submitted that according to the testimony of P.W.1 Harbansh Singh, who had also come to depose from jail, they (he along with his deceased brother) had been to the court at 12:00-1:00 p.m. on the fateful day. They remained in the court compound for an hour. Thereafter they went to market. They sat on matador at 3.00 p.m. When they alighted from matador and proceed towards their house, this incident took place. The death of the victim occurred within no time from the time of assault. This evidence is contrary to what has been said in the FIR, for, it has been mentioned therein that the informant along with his brother were going back to their residence after doing pairavi of the case in Rudrapur court. Such a long itinerary has not been specified in the FIR. It appears that the assault did not take place in the manner the same has been deposed by the prosecution witnesses and there lies a big question mark on the credibility of eyewitnesses. 19. P.W.2 Dr. B.D. Joshi, who has conducted postmortem, has said in his statement that the death of victim was possible on 19.05.2000 at 3:45 p.m. In the cross-examination, P.W.2 Dr. B.D. Joshi has said that the death of victim had taken place between 12 to 18 hours prior to post mortem. It is to be noted here that 11 the post mortem was conducted on the body of the deceased on 20.05.2000 at 12:15 a.m. Dr. Joshi has also said in the same breath that there was possibility of death on 19.05.2000 between 10:00 – 11:00 a.m. The doctor has proved post mortem report Ext. Ka-2, wherein the doctor has mentioned that the dead body was about half a day old, a reference of which has also been given by learned trial court at page 19 of its judgment in S.T.No.251/2000, wherein a brief account of the post mortem report as well as the statement given by the doctor before the court has been given. Learned Sessions Judge did not rely upon statement of the doctor wherein he has said that the death of victim took place between 12 to 18 hours prior to post mortem. This court is of the view that there is inconsistency in the evidence tendered by the doctor, as a result time of death (of victim) is not known. 20. In view of the above statements of so called eyewitnesses coupled with the testimony of the doctor, this court is inclined to agree with the submissions of learned counsel for the appellants that the prosecution has not been able to prove its case against the appellants beyond reasonable doubt. 21. There are some other formal witnesses who have been examined on behalf of the prosecution. Let us see whether their testimony is of any help to the prosecution or not. 12 22. P.W.5 S.I. Virasat Ali was posted as S.S.I. on 19-05-2000 at P.S. Kichha. He has proved chick F.I.R. Exhibit Ka-3 and copy of G.D. Exhibit Ka-4. He had conducted investigation at some length and has proved his signatures on autopsy report Exhibit Ka-5 and other papers Exhibit Ka-6 to Ka-9. He has also proved memo of taking simple concrete and blood stained concrete (Exhibit Ka-10). The site plan Exhibit Ka-11 was also prepared by this witness. He has also proved container having simple concrete and blood stained concrete (Exhibit 1 &2), kanta Exhibit-3 and kanta Exhibit-4 recovered from accused Pyara and Sumera respectively. He has also proved recovery memo Exhibit Ka-12. In the cross examination, the Investigating Officer has admitted that deceased Kuldeep @ Deepa was a person having criminal history. Many a cases were pending against him. He has also admitted that the report which has been received from Forensic Science Laboratory is as regards simple soil and blood stained soil and not simple concrete and blood stained concrete. It is admitted to this witness that the concrete was sent to the Forensic Science Laboratory. Thus the testimony of this witness does not help the prosecution. Rather some glaring omissions have surfaced in the prosecution story. 23. P.W.-6 S.I. Tayab Hussain was posted in P.S. Kichha as S.I. on 22.5.2000. He was the Investigating Officer of offence punishable u/s 25 Arms Act 13 against Pyara and Sumer. He has proved F.I.R. Exhibit Ka-13 and Copy of G.D. Exhibit Ka-14. He has also proved site plan Exhibit Ka-15, charge sheet against Sumer (Exhibit Ka-16), Chick F.I.R. Exhibit Ka-17, copy of G.D. Exhibit Ka-18, site plan Exhibit Ka-19 and charge sheet against Pyara (Exhibit Ka-20). He is a formal witness. 24. P.W.-7 S.I. Ram Lakhan Yadav had taken over investigation from S.S.I. Tayab Ali and is a witness to the recovery of kanta Exhibit-3 from accused Pyare Lal and another kanta Exhibit-4 from another accused Pare Lal. He has proved recovery memo Exhibit Ka-12. He has also proved recovery of kanta from accused Brijlal @ Lalla (Exhibit Ka-21). All the three kantas Exhibits 3, 4 & 5 were sent to the Forensic Science Laboratory, Agra. The report is Exhibit Ka-22. The site plans relating to the recovery of incriminating articles from Sumera, Pyara and Brijlal @ Lalla have been proved as Exhibit Ka-23 and 24. The charge sheet submitted against Pyara, Sumera, Brijlal @ Lalla and Rakesh Tewari for the offence u/s 302 I.P.C. has been proved as Exhibit Ka -25. 25. P.W.-8 A.S.I. Dev Singh is the witness to the recovery of incriminating articles from Pyare, Sumera and Brijlal @ Lalla. He has admitted in the cross examination that no public witness was available although the members of public had access to these places. It is ironical that no public witness was 14 procured by the police personnel at the time of recovery of incriminating articles from the accused persons from different places. 26. The testimony of P.W.-1 Harbans Singh, P.W.-3 Harjinder Singh and P.W.-4 Daljeet Singh is not acceptable in view of material infirmities in their statements. P.W.-4 Daljeet Singh had been declared hostile by the prosecution in the sense that he had denied participation of Rakesh Pandit in the crime. P.W.-3 Harjinder Singh and P.W.-4 Daljeet Singh appear to be a chance witnesses. More so, P.W.-4 Daljeet Singh also appears to be interested witness. It is also doubtful whether P.W.-1 Harbansh Singh had really seen the assailants when Kuldeep Singh @ Deepa was killed. He is the real brother of Kuldeep Singh @ Deepa and thus cannot be said to be disinterested witness. Two of the eyewitnesses were brought from jail to depose. They were accused in the murder of Pyara (co-accused of the present case). Written Orders of District Magistrate, Udham Singh Nagar to conduct postmortem after the sunset have not been placed on the file. There is anomaly as regards simple concrete and blood stained concrete also. It is said that concrete was collected from the pitched road. The prosecution story becomes doubtful on this count also. The time of death of Kuldeep @ Deepa is not known. 15 27. Thus this court is of the view that the prosecution has not been able to bring home the guilt against accused-appellants Sumera, Brijlal @ Lalla and Rakesh Tewari @ Rakesh Pandit. Hence their appeals deserve to be allowed. Case against co-accused Pyara has already been abated. 28. Hence, the appeals preferred by appellants Sumera, Brijlal @ Lalla and Rakesh Tewari @ Rakesh Pandit are allowed. The orders of conviction and sentence passed by Learned Trial Courts (against them) on 30.8.2003 and 04.07.2007 are hereby set-aside. Appellants Sumera & Rakesh Tewari are on bail. They need not surrender. Appellant Brijlal @ Lalla is in jail. He be set at liberty forthwith, if not required to be detained in any other case. The Superintendent of Jail where the appellant Brijlal @ Lalla is presently serving out the sentence, be informed accordingly. 29. Let the lower court record be sent back. (U.C. Dhyani, J.) (Barin Ghosh, C.J.) Dt. December 22, 2011. Sanjay