IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 198 of 2007 1. Smt. Khimuli Devi, W/o Hari Ram 2. Smt. Bhagwati Devi, D/o Hari Ram Both R/o Village Bhanrigairh P.S. Someshwar, District Almora ……….Appellants Versus State of Uttarakhand …………Opposite Party Alongwith Criminal Appeal No. 219 of 2007 Hari Ram S/o Phakir Ram R/o Village Bhanrigairh P.S. Someshwar, District Almora ……….Appellant Versus State of Uttarakhand …………Opposite Party And Criminal Jail Appeal No. 295 of 2007 Arjun Ram,S/o Hari Ram R/o Village Bhanrigairh P.S. Someshwar, District Almora 2 ……….Appellant Versus State of Uttarakhand …………Opposite Party Shri I.S. Mehra, Amicus Curiae, Advocate, present for the appellants. Shri S.S. Adhikari, A.G.A., with Shri B.S. Parihar, Brief Holder, present for the state. Hon’ble Prafulla C. Pant, J. Hon’ble Nirmal Yadav, J. Oral: Hon'ble Prafulla C. Pant, J All these three appeals are directed against judgment and order dated 08.05.2007, passed by Sessions Judge, Almora, in Sessions Trial No. 31 of 2004, and Sessions Trial No. 29 of 2005, whereby appellants Hari Ram, and Arjun Ram have been convicted under section 302 read with section 34 of Indian Penal Code, 1860 (for short IPC). The accused/ appellants Khimuli Devi, and Bhagwati Devi have been convicted under section 307 read with section 34 IPC. Each one of the convicts namely Hari Ram, Arjun Ram, has been sentenced to imprisonment for life and also directed to pay fine of Rs. 10,000/-. Each one of the other two convicts namely Khimuli Devi, and Bhagwati Devi has been sentenced to rigorous imprisonment for a period of five years and directed to pay fine of Rs. 2000/-. 3 2. Heard Amicus Curiae and learned counsel for the State. 3. Prosecution story in brief is that on 29.03.2004, at about 8:30 P.M., Govind Ram (deceased) and his brother Thakur Ram (P.W.4) were coming back, after doing their daily work to their village Bhanrigair. Prosecution case is that when the two reached near house of Nand Ram , accused/appellants Hari Ram, Arjun Ram, Khimuli Devi (wife of Hari Ram), and Bhagwati Devi alongwith Champa, with common intention, assaulted Govind Ram and Thakur Ram with rods and sickles. Govind Ram died at the spot. Kamla Devi (P.W2, wife of deceased) reported about the incident to Village Pradhan Rajendra Singh (P.W1). He (P.W.1) prepared first information report (Ex. A1) which was lodged at police station Someshwar on the next day i.e. 30.03.2004. On the basis of said report crime no. 40 of 2004, was registered against the accused Hari Ram, Arjun Ram, Khimuli Devi, and Bhagwati Devi in respect of charge of offences punishable under section 147, 148, 307, and 302 IPC. Meanwhile, on the telephonic information given to the police outpost Takula, in early hours, on 30.03.2004, dead body of Govind Ram was taken into custody by the police and inquest report (Ex. A7) was prepared. And the same 4 was sent alongwith sample seal for post mortem examination . P.W.5 Dr. Anil Kumar Joshi, who conducted post-mortem examination on the dead body of the deceased Govind Ram, on 30.03.2004, at about 2:45 P.M., (even before the first information report was formally lodged at police station). The Medical Officer found four ante-mortem injuries and opined that cause of death was shock and hemorrhage as a result of ante-mortem head injury. P.W. 8 Sub-Inspector Kunwar Singh Rawat, investigated the crime. After interrogating the witnesses and completing investigation, he submitted charge sheets (Ex. A 23 and A24) against the accused Hari Ram, Khimuli Devi, Champa, and Bhagwati Devi, and one against accused/appellant Arjun Ram, for their trial in respect of charge of offences punishable under section 302, 307, 147, and 148 IPC. 4. The Magistrate, on receipt of the charge sheet, after giving necessary copies to the accused, as required under section 207 Cr.P.C., appears to have committed the cases to the court of sessions for trial. Learned Sessions Judge, after hearing the parties, on 29.09.2004, framed charge of offences punishable under section 147, 307/149, and 302/149 IPC against all the five accused who pleaded no guilty and claimed to be tried. On this, prosecution got 5 examined PW1 Rajendra Singh (complainant), P.W.2 Kamla Devi (wife of the deceased), P.W.3 Shankar Ram (nephew of the deceased ), P.W.4 Thakur Ram (injured witness and brother of the deceased), P.W.5 Dr. Anil Kumar Joshi, who conducted post-mortem examination, P.W.6 Dr. Mukesh Joshi, who recorded injuries on the person of Thakur Ram in the Base Hospital, Almora, P.W.7 Dr. Arvind Pant, who recorded injuries on the person of Thakur Ram at Primary Health Center, Takula, before referring the patient in Base Hospital, and P.W.8 Sub-Inspector Kunwar Singh Rawat (Investigating Officer). The oral and documentary evidence was put to the accused under section 313 Cr.P.C., in reply to which the accused admitted their relationship with the deceased but alleged that all other evidence against them is false. In defence D.W.1 Mahendra Singh was got examined. The trial court, after hearing the parties, found that prosecution has successfully proved charge against accused/ appellants Hari Ram, and Arjun Ram, in respect of offence punishable under section 323/34 IPC, and as against accused/appellant Khimuli Devi, and Bhagwati Devi, relating to offence punishable under section 307 read with section 34 IPC. Accordingly, the accused were convicted. In respect of other charges the four accused were not found guilty. As far as accused Champa is concerned, 6 she was acquitted of all the charges. After hearing on sentence, the trial court sentenced each one of the convicts Hari Ram and Arjun Ram to imprisonment for life and also directed to pay fine of Rs. 10,000/-. Each one of the convicts Khimuli Devi, and Bhagwati Devi was sentenced to rigorous imprisonment for a period of five years and to pay fine of Rs. 2,000/-. Aggrieved by said judgment and order dated 08.05.2007, these appeals are filed by the convicts. 5. Before further discussion, we have think it just and proper to mention ante-mortem injuries found on the person of the deceased by P.W.5 Dr. Anil Kumar Joshi on 30.03.2004, at about 2:45 P.M. The four ante- mortem injuries recorded in autopsy report (EX. A2) are being reproduced below:- (i) Contusion size 11cm x 9cm on left side including external ear and extending posteriorly on scalp. (ii) Contusion on right side size 11cm x 8cm on the back of pinna. Extending on back and upper part of the neck. (iii) Lacerated wound 7cmx1cm aponenrotie deep placed in saggital plane on just left to the middle of parietal region. (iv) Lacerated wound 63cmx1cm bone deep placed just interior to injury no.3. 7 The Medical Officer opined that the deceased has died of hemorrhage, shock, and, as a result of ante-mortem head injury. The above medical report establishes unnatural death of the deceased, rather caused by injuries suffered by him. 6. It is also pertinent to mention here that the injuries suffered by P.W.4 Thakur Ram in the incident are recorded by P.W.7 Dr. Arvind Pant on 30.03.2004, at Primary Health Center, Takula, who prepared the injury report (Ex. A3). The said injuries are being reproduced below:- (i) Lacerated wound four inches in length on the head. (ii) Lacerated wound 1cm in length on the head left side. (iii) There was blackening on both the eyes. 7. P.W.6 Dr. Mukesh Joshi also recorded the injuries on the person of Thakur Ram (P.W.4) at Base Hospital, Almora, after the patient was referred from Primary Health Center, Takula. He has also recorded corresponding injuries found on the person of injured Thakur Ram. The evidence adduced by the two medical officers shows that Thakur Ram has also suffered injuries in the incident. As such, P.W.4 Thakur Ram is a star eye witness of the incident. 8 8. P.W.4 Thakur Ram, who is said to be star eye witness supporting the prosecution story states that on 29.03.2004, at about 8:30 P.M., he alongwith Govind Ram (deceased) coming towards the village. According to the witness when two reached near the house of Nand Ram, accused Hari Ram, Arjun Ram, Khimuli Devi, and Bhagwati Devi alongwith Champa attacked the two and assaulted them with rods and sickles. This version has been supported by P.W.2 Kamla Devi (wife of the deceased), P.W.3 Shankar Ram. On reading on the examination in chief of the three witnesses it looks as if there is sufficient evidence to prove charge against accused/appellants. But on close examination and scrutiny of the evidence on record the evidence adduced by the aforesaid three accused appears to the not trust worthy. 9. P.W.7 Dr. Arvind Pant who first of all recorded injuries on the person of Thakur Ram (Star witness ) has stated that when the injured came to him, he disclosed that he was beaten by Nand Ram (Nand Ram is not accused in this case). Said statement of P.W.7 Dr. Arvind Pant is corroborated from injuries report (Ex. A3) which was prepared on 30.03.2004, wherein it is clearly mentioned regarding 9 history of the patient that Thakur Ram disclosed the medical officer that he was beaten by Nand Ram. The above fact creates a reasonable doubt in the manner crime is said to have been committed as suggested by the prosecution. If Thakur Ram in his first version (even before lodging of the FIR) named Nand Ram, it is strange that why Nand Ram was not named as an accused. It is also strange that why P.W.4 Thakur Ram is not disclosing name of Nand Ram in his examination before the court. It is also pertinent to mention here that admittedly incident as stated have taken place near the house of Nand Ram. 10. The another reason which crates doubt as to the prosecution story is that the incident is said to have been taken place at 8:30 P.M., on 29.03.2004. There is no mention of source of light. On the next day dead body of Govind Ram was taken by the police and post-mortem examination had already taken place by 14:45 P.M. And the FIR is lodged only thereafter at 15:30 hours at police station Someshwar. The explanation given by the prosecution is that since the distance between the place of incident and police station is 75 km, as such there is nothing wrong if the FIR was lodged on the next day. However, the first version of the incident which was given to the police of outpost Takula, on which the police reached at the 10 spot and took the dead body and sent for post -mortem examination, that version has not been brought on record. 11. Apart from the above, there is one more point which creates reasonable doubt as to the manner the murder of Govind Ram, is said to have been committed. There is no injury of sickle either on the person of Thakur Ram or on the dead body of the deceased (Govind Ram). Learned Amicus Curiae submitted that in the night it cannot be ruled out that the deceased might have fallen down in the hilly terrain. That is why even in the post-mortem report it is mention “rest of the injuries are post-mortem in nature”. The site plan (Ex. A6) also shows the place where there was marks of slipping and falling in hilly terrain. 12. In the above circumstances, we are of the view that there are sufficient grounds to believe that the prosecution has failed to prove charge against the accused/appellants beyond reasonable doubt. Therefore, we are of the view that these appeals deserve to be allowed. Accordingly, all the three appeals are allowed. Their conviction and sentence recorded by the trial court is set aside. Accused/ 11 appellants Hari Ram, Arjun Ran, Khimuli Devi, and Bhagwati Devi are acquitted of the charge. Hari Ram and Arjun Ram are said to be in Jail. They shall be set on liberty if not wanted in connection with any other crime. Accused Khimuli Devi, and Bhagwati Devi , if on bail need not to surrender. Let the copy of this Judgment be sent to the Superintendent of Jail concerned. Also lower court record be sent back to the trial court. (Nirmal Yadav, J) (Prafulla C. Pant, J) Dt. 27.08.2010 Parul