IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Government Appeal No. 1904 of 2001 (Old No.787/1999) State … Appellant Versus Gabar Singh …Respondent Sri S.S. Adhikari, A.G.A. for the State/appellant Sri Sandeep Kothari, Advocate for the respondent Hon’ble B.C. Kandpal, J. Hon’ble Nirmal Yadav, J. Per :Hon’ble B.C. Kandpal, J.(Oral) This Government Appeal preferred by the State under Section 378 of Cr.P.C. is directed against the judgment and order dated 8.12.1998 passed by Sessions Judge, Tehri Garhwal, in Sessions Trial No.23/1997, State versus Gabar Singh, whereby accused-respondent has been acquitted of the charge of offence punishable under Section 302 I.P.C. 2- Prosecution story in brief is that on 18.4.1997 at 10.00 a.m., PW-1 Chandra Singh lodged an F.I.R. (Ext.Ka.1) at Patwari Circle Paukhal with the allegations that on 17.4.1997 at about 3.00 p.m. accused Gabar Singh inflicted serious injuries on the head of his brother Rampal Singh with the intention to kill him and due to the said injuries Rampal Singh died. On the basis of the said F.I.R., Chick F.I.R. (Ext.Ka.3) was prepared by PW-7 Patwari Sri Sigrup Singh Negi by registering a case in General Diary. Thereafter Patwari (PW-7) inspected the spot and found the dead body of Rampal Singh lying on a cot in the upper room of 2 the house. He prepared site plan, inquest memo (Ext.Ka.5), photo lash (Ext.Ka.6), letter to R.I. paper No. 12-Ka, two sample of seal i.e. one regarding rod of deckon wood and another of sealing of dead body (paper Nos.11-Ka and 11-Ka/2). The dead body of the deceased was sent to Combined Hospital for post mortem examination. On 17.4.1997 the police arrested accused Gabar Singh while he was going by bus towards Srinagar. The statements of the witnesses were recorded and after completion of the investigation, charge sheet (Ext.Ka.4) was submitted against the accused-respondent under Section 302 I.P.C. by the Patwari, P.C. Paukhal. 3- After submission of the charge sheet accused- respondent was committed to the court of Sessions and the learned Sessions Judge after hearing the parties framed charge of offence punishable under Section 302 I.P.C. against accused-respondent. The accused pleaded not guilty and claimed to be tried. 4- The prosecution in order to bring home guilt against the accused got examined as many as nine witnesses in the case. PW-1 Chandra Singh is the complainant, who lodged the F.I.R. (Ext.Ka.1) and proved the same. PW-2 Sheesh Ram is the alleged eyewitness of the case. PW-3 Smt. Roshni Devi is the wife of Rampal Singh (deceased). PW-4 Dhan Singh is the real brother of the deceased and of the accused. PW-5 Dr. Praveen Srivastava medically examined the injured Rampal Singh. PW-6 Dr. G.S. Rawat conducted the autopsy on the dead body of deceased. PW-7 Sigrup Singh Negi is the investigating officer. PW-8 Smt. Pushpa is the alleged eyewitness of the case. PW-9 Faisal Aftab 3 was posted as SDM, Pratapnagar on 23.5.1997 and he recorded the statement (Ext.Ka.8) of Smt. Roshni Devi under Section 164 Cr.P.C. 5- The accused/respondent in his statement under Section 313 Cr.P.C. denied all the allegations of the prosecution case and alleged that his sister- in-laws are giving false evidence because they want to usurp his property and due to this reason he has been falsely implicated in the case. However, no evidence was adduced by the accused-respondent in his defence. 6- The trial court having considered the entire evidence on record and hearing learned counsel for parties found not guilty the accused/respondent of the offence punishable under Section 302 I.P.C. and acquitted him of the charge levelled against him, vide impugned judgment and order dated 8.12.1998. 7- Feeling aggrieved by the aforesaid impugned judgment and order, the State has preferred the present appeal which has been placed before us for disposal. 8- We have heard Sri S.S. Adhikari, learned A.G.A. for the State/appellant, Sri Sandeep Kothari, learned counsel for the respondent and perused the record. 9- Before further discussion, it is pertinent to mention here that post mortem examination on the dead body of the deceased Rampal Singh was conducted on 18.4.1997 at 4.00 p.m. by Dr. G.S. 4 Rawat (PW-6), who found the following ante mortem injuries on his person: (i) Abraded swelling 1 cm x 1 cm on the right side lower lip inner aspect. (ii) Abrasion 2 cms x 1 cm on the right side face, 5 cms below the right eye, outer angle. A mark of sticky dressing across the injury present on the right side face i.e. probably leucoplast mark. (iii) Abraded contusion 6.5 cms x 2 cms on the left side frontal region of head, 7.5 cms above left eyebrow. (iv) Abraded contusion swelling 7 cms x 5 cms size on the right side head (temporal region), 6 cms above the outer end of right eyebrow, on cutting the scalp at injury side. There was clotted blood present on of the skull bone. Under the injury there was a big fracture line running from right side temporal bone to the parietal bone right side upto midline on the top. On further dissection and removing the skull cap, there was a big haematoma between the bone and durameter i.e entradural haematoma, occupying the right side parietal and temporal region. (v) A pin point abrasion present on the front of right elbow. The Medical Officer (PW-6), at the end of post mortem examination, opined that the cause of death was due to coma as a result of ante mortem injury on the head. 5 10- Learned A.G.A. for the appellant/State has submitted that the trial court has committed an error of law by discarding the testimony of the eyewitnesses of the case. 11- On the other hand, learned counsel for the respondent has made rival contention by submitting that the impugned judgment and order passed by the trial court is perfectly justified. 12- We have re-assessed the entire oral and documentary evidence in the case. The prosecution has produced PW-2 Sheesh Ram, PW-3 Smt. Roshni Devi and PW-8 Smt. Pushpa Devi as eyewitnesses of the occurrence. According to the prosecution, all these witnesses stated in their evidence that they were eating masoor at okhal in the courtyard of the house when accused Gabar Singh came there abusing Rampal Singh and thereupon Rampal came out of his room and thereupon two blows of deckon wood rod were inflicted by the accused on the head and on the cheek of Rampal Singh, due to which he fell down on the ground and became unconscious. 13- PW-2 Sheesh Ram has stated in his evidence that he had not seen Gabar Singh inflicting danda blow on the head of Rampal Singh but he had seen only one danda blow inflicted by the accused on the cheek of Rampal Singh. PW-3 Roshni Devi has stated in her evidence that she had not seen accused Gabar Singh inflicting danda blows to her husband because they were sitting at the okhal diverting their attention otherwise. PW-8 Smt. Pushpa Devi has stated in her evidence that she had seen two blows inflicted by accused Gabar 6 Singh to Rampal Singh i.e. one on the head and the other on the cheek. Their evidence is not consistent on the point of blows inflicted by the accused. PW-2 Sheesh Ram is a chance witness. The statements of alleged eyewitnesses are contradictory with each other on the point of blows inflicted by accused Gabar Singh to Rampal Singh. 14- After a careful analysis of testimony of PW-2 Sheesh Ram, PW-3 Smt. Roshni Devi and PW-8 Smt. Pushpa Devi, who are said to be the eyewitnesses of the occurrence, we find that their evidence is not cogent and reliable. There is material contradiction in the statements of these three eyewitnesses. 15- Further, the contents of the F.I.R. also do not support the prosecution case. PW-1 Chandra Singh Negi has lodged F.I.R. (Ext.Ka.1) at Patwari Circle Paukhal. This witness has stated in his evidence that on hearing the weeping of wife of Rampal Singh (deceased) when he reached at the place of occurrence, he was informed by the wife of Rampal Singh and Dhan Singh that accused Gabar Singh killed Rampal Singh. But, in the F.I.R. this witness has not disclose the name of any eyewitness of the occurrence. He has simply given the information to the police about murder of Rampal Singh by Gabar Singh. He has not given any details of the manner in which occurrence took place, names of the eyewitnesses who were present at the scene of occurrence, and weapon used in the commission of crime etc. It is well settled principle of law that F.I.R. is not an encyclopedia and it is not expected that all the details should be noted in the F.I.R., but 7 at the same time it was not expected on behalf of the complainant to inform the police in 3-4 lines about the murder of the deceased. It is also the case of the prosecution that eye witnesses i.e. PW-2 Sheesh Ram, PW-3 Roshni Devi and PW-3 Pushpa Devi were eating masoor at okhal in the courtyard when accused Gabar Singh came abusing Rampal Singh and thereafter killed him. When PW-1 Chandra Singh Negi reached at the spot after hearing weeping of wife of Rampal Singh, he was informed by the wife of deceased about the commission of crime by accused Gabar Singh, but he did not like even to mention the names of these persons. Therefore, the testimony of these alleged eyewitnesses cannot be believed outrighly on this ground also. 16- The medical evidence also does not support the prosecution case. As per the opinion of the Dr. G.S. Rawat (PW-6), who conducted the autopsy of deceased Rampal Singh, the injury found on the head of deceased could have possibly been caused by Danda. This witness (PW-6) further opined that it is not possible to say whether the said injury could have been caused on 17.4.1997 or one day prior to the post mortem. This witness in his cross- examination has stated that Haematoma could be the result of injuries by falling from stairs and the same also could be the cause of death. Further, the prosecution has not examined Dr. Parmatma Singh who medically examined injured Rampal Singh nor has proved the photostat copy given by Dr. Parmatma Singh as said copy of the report clearly reveals that Rampal Singh received injuries on his head by his fall and same were not inflicted by the 8 accused or by any other person and due to this reason wife of deceased had not seen the accused inflicting such blows to the deceased. 17- Further, the prosecution has not produced Shyam Das in whose presence the recovery of danda was made by the patwari. The investigating officer has also not prepared the site plan of recovery of such Danda nor any mention about such recovery has been made in the General Diary or the Case Diary. These facts also create doubt on the prosecution case. 18- In view of the above, we are of the view that prosecution has failed to establish its case beyond reasonable doubt against the accused-respondent under Section 302 I.P.C. The reasons recorded by the trial court for acquittal of the accused- respondent are based on material on record and we do not find any ground to interfere with the same. The trial court has rightly found not guilty the accused-respondent for the offences of murder of deceased Rampal Singh. 19- In view of the above, appeal lacks merit and is liable to be dismissed. 20- The appeal is dismissed. The impugned judgment and order dated 8.12.1998 passed by the trial court is hereby confirmed. (Nirmal Yadav, J.) (B.C. Kandpal, J.) 04-05-2010 SP