REVISED IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Criminal Government Appeal No. 116 of 2003 CRIMINAL SIDE: State of Uttaranchal ............................... Appellant Versus 1. Sohan Singh S/o Vikramjeet Singh 2. Paramjeet Singh S/o Sohan Singh 3. Mohit Raza S/o Yusuf 4. Pradeep S/o Rajaram Chauhan 5. Ashwani Kumar Mittal S/o Shanta Prasad......... Respondents Mr. A. Rab, learned Addl. Govt. Advocate for the State. Mr. S.P. Singh, learned counsel for the respondents. WITH Criminal Revision No. 133 of 2003 Mahendra Pratap Singh Gill ............................ Revisionist Versus State of Uttaranchal & Others .......................... Respondents Mr. Rajendra Singh, learned counsel for the Revisionist. Hon. P.C. Verma, A.C.J. Hon. Rajesh Tandon, J. (Delivered by Hon'ble Tandon, J) By the present appeal the State of Uttaranchal has challenged the judgment and order dated 31st July 2003 passed by Shri V.K. Jain, District and Sessions Judge, Haridwar in S.T. No. 17 of 2003 whereby acquitting Sohan Singh, Paramjeet Singh, Mohit Raza, Pradeep and Ashwani Kumar Mittal u/s 147, 148, 302, 149, 307/149 and 120-B/302 of the I.P.C. The present appeal has been preferred by the State of Uttaranchal against the 2 Aforesaid accused-respondents. A criminal revision No. 133 of 2003 has also been preferred by Mahendra Pratap Singh Gill in this case. Further, another session trial is pending before the Sessions Judge, Haridwar against Lakhbir, one of the co-accused in this murder case. Case of the prosecution: Brief facts giving rise to the present appeal are that on 8th October 2002 at about 8.30 A.M. one Bholu lodged a written report stating therein that today at about 7.45 A.M. when he went to dera (residence) of Ram Singh situated at Ranipur Jhal to assume his work he saw that Ram Singh, his wife and their servant were brutally murdered and were lying on their beds and other family members badly injured were also lying unconscious there. It was also reported that somebody killed them. The complainant was also accompanied by Mr. Rakesh @ Pappu son of Jagdish R/o Ghas Mandi. The scribe of this First Information Report was one Mr. Rakesh Kumar, Advocate and thumb impression of Bholu was also made on the F.I.R. On the basis of this written report the case was registered as case crime No. 419 of 2002 under Section 302/307 of I.P.C. by Police Station, Jwalapur. On the basis of the said F.I.R., the Station Officer Incharge, Police Station Jwalapur started investigation along with other police officials. The police team went to Ranipur Jhal at the residence of deceased Ram Singh and inspected the spot. On the instructions of the Inspector Incharge the injured persons were immediately rushed to the District hospital for medical treatment in the Police Petrol Car. The Inspector Incharge collected blood stained clothes of the deceased, blood stained mud, simple mud, one lathi, and one blood stained file cover from the place of incidence. He prepared a ferd and got the signatures of Bholu and Rejender on it. He also prepared map of the place of incidence. 3 Thereafter the Inspector Incharge went to Himalayan Institute, Jolly Grant on 9th October 2002 where he met one Sonal Prince who was assisting the injured persons and on his willingness his statement was recorded under Section 161 Cr.P.C. In his statement, Sonal Prince has stated that on 25th September 2002 he went to the C.J.M. Court at Haridwar in connection with the case of his brother and when he went to the canteen outside the C.J.M. Court for having tea he saw Sohan Singh along with his son Paramjeet Singh @ Pammi and Ashwani Kumar were having tea together. During their conversation Pradeep Chauhan also reached there who also joined the aforesaid group. Ashwani Kumar has reiterated to Pradeep Chauhan which was conveyed in between him and Soahn Singh and thereafter Pradeep Chauhan at the instance of Paramjeet Singh @ Pammi accorded his consent and all of them have joined together and pledged to eliminate the whole family of Ram Singh with the assistance of Pradeep Chauhan. On the aforesaid information of Sonal Prince, Sohan Singh, Paramjeet @ Pammi, Ashwani Kumar and Pradeep Chauhan were arrayed as accused and on 10th October 2002 accused Paramjeet Singh was arrested and during his interrogation the names of Nazim, Bablu and Mohit Raza were also disclosed and thereafter Nazim, Bablu and Mohit Raza were also arrayed as accused. On the same date Sohan Singh, Paramjeet, Pradeep Chauhan, Mohit Raza and Ashwani Kumar were also arrested from their houses. After the investigation by the Inspector Incharge was over on 11th November 2002 the matter was transferred to the C.B.C.I.D. Dehradun and at the instance of C.B.C.I.D., Nanke Singh Janwar, Inspector C.B.C.I.D. again investigated into the mater and submitted a charge sheet against Sohan Singh, Paramjeet, Mohit Raza, Pradeep Chauhan and Ashwani Mittal and at that time Lakhbir Singh, Bablu and Nazim were not challaned as they were absconding. The injured were medically examined in the 4 District Hospital, Haridwar and the medical report was prepared which was submitted before the Court. The Panchayat Nama of the three deceased persons was prepared by Sub Inspector Yogendra Singh Thana Jwalapur, Haridwar. All the necessary papers were prepared along with three dead bodies which were sealed and were sent for postmortem. Dr. S.S. Lal, Medical Officer, Canal Dispensary, Mayapur, Haridwar performed autopsy on the dead bodies of the deceased on 08.10.2002. As per the postmortem report (Ex. Ka-8) deceased Ram Ram Singh sustained following ante-mortem injuries: 1. Contusion 10 x 7 cm. right side of head, 1 cm. away (behind) right ear pinna. 2. Abraded contusion 11 x 10 cm. on right side of face, just front of right tragas of ear. As per the postmortem report (Es. Ka-9) deceased Bhajan Kaur sustained following ante-mortem injuries: 1. Incised wound 1 x 1 cm. on right ear lobule through and through. 2. Abraded contusion in an area of 14 x 7 cm. on right side of upper part of neck and face. 3. Incised wound 1 x 1/2 cm. on right side of mandible, transversely placed, 3 cm. away from right angle of mouth at 5' O clock position with fracture of mandible. 4. Contusion 7 x 5 cm. on left side of head, 1 cm. above left ear pinna upper part. 5. Abraded contusion 9 x 3 cm. on left side of upper part of front of onest 3 cm. above from left nipple at 12' o clock position. As per the postmortem report (Ex. Ka-7) unknown male sustained following ante-mortem injuries: 5 1. Contusion 5 x 4 cm. on left side of head, 2 cm. above from left ear pinna. 2. Contusion 2 x 3 cm. left side of face, 1 cm. away from left tragas of ear. 3. Incised wound 7 x 4 cm. on right side of lower mandible, transversely placed, bone deep with fracture of mandible. 4. Abraded contusion 2 x 1 cm. on back side of right palm. Dr. K.K. Karoli (P.W. 7), Senior Medical Officer, District Hospital, Haridwar medically examined the injured persons. As per the injury report, Gurdeep Kaur sustained following injuries: 1. Abraded wound left side of head 1.5 x 8.6 cm. bone deep, 2 cm. above left eyebrow. X-Ray advised. 2. Abraded would left 3 x .5 cm. above left eyebrow on the eyelid. 3. Contusion with swelling 5 x 4 cm. above left eye. As per injury report (Ex. Ka-5), M.P.S. Gill sustained following injuries: 1. Multiple bruises 7 x 4 cm. left side behind the head. 2. Contusion with swelling and bruise right side on the jaw, lacerated wound 5 x 3 cm. muscle deep X-ray advised. 3. Contusion 5 x 3 cm. on the neck 2 cm. below right ear. As per injury report (Ex. Ka-3) Shamsher Singh Gill sustained following injuries: 6 1. Abraded wound right side on forehead 4 x 1 cm. bone deep. 2. Abraded wound 6 x 5 x 1 left side of head, bone deep. 3. Contusion with swelling on left eye 6 x 4 cm. 4. Abraded wound 5 x 2 cm. behind left ear blood stained. Charge-sheet was submitted on 22nd April 2003 whereby Sohan Singh, Paramjeet, Mohit Raza, Pradeep Chauhan, Ashwani Kumar Mittal were charge-sheeted to the following effect: 1. Sohan Singh, Paramjeet, Mohit Raza, Pradeep and Ashwani Kumar on 7th/8th October 2002 in the mid night of 12.30 A.M. to 1.30 A.M. along with Nazim, Lakhbir Singh and Bablu in order to kill Ram Singh, Smt. Bhazan Kaur and the servant and with a common intention have killed the aforesaid three persons by using force and violence. 2. The aforesaid person have also assembled armed with Lathi, danda,iron rods and sharp edged weapon with an intention to kill Ram Singh, his wife and his servant. 3. They have inflicted the injuries upon the deceased along with Lakhbir Singh, Bablu and Nazim and by using lathi, danda and iron rods they have inflicted the injuries and as such the accused persons were charge sheeted under Section 302/149, 147, 148, 307/149 and Section 120-B/302 of I.P.C. Learned counsel for the accused-respondents has argued that this Court has limited jurisdiction as the appeal has been filed against the acquittal. The learned counsel for the accused respondents has also argued the following points: 7 1. The conspiracy alleged to have been hatched has not been proved against any of the accused persons and the motive and reason for committing the murder has not been proved by the prosecution against the accused persons.. 2. From the prosecution evidence itself it is established that the accused Ashwani Kumar Mittal was not present in the canteen of the Civil Court Haridwar on 25.09.2002 and no accused was present in the conspiracy on 03.01.2002 at Shivalik Nagar Restaurant. 3. The F.I.R. of the case has been concocted and has not been written at the time it is purported to have been written. 4. The statements of the P.W. 4 Gurdeep Kaur, P.W. 5 M.P.S. Gill and P.W. 6 Shamsher Singh are not believable. 5. The medical report is not corroborative to the prosecution version. An application for additional evidence of the prosecution witnesses has also been filed in criminal revision No. 133 of 2003 under Section 397/401 Cr.P.C. Assessment of evidence and the findings based on the said evidence: The learned Sessions Judge has discarded the ocular witnesses of Gurdeep Kaur (P.W. 4), M.P.S. Gill (P.W. 5), Shamsher Singh (P.W. 6) and Balbir without assigning any reason on the ground of discrepancy of medical evidence alone as will appear from this judgment to the following effect: As far as Gurdeep Kaur (P.W. 4) is concerned the learned Sessions Judge has recorded a finding that she has stated on oath 8 that on 7th/8th October 2002 midnight at about 12.30 A.M. to 1.00 A.M. her father and mother were sleeping in the varandah and she and her two brothers were sleeping in the room. Two of their servants were sleeping in the next room. She has also deposed that the room were not loked from inside and the lights were on. She woke up after hearing groaning sound of his brothers and saw Sohan Singh, Paramjeet, Lakhbir Singh assaulting his brothers. Sohan Singh was armed with danda, Paramjeet was also having a danda with an iron ring attached to it and Lakhbir Singh was armed with iron rod. These three persons were accompanied with another 6-7 persons who were not known to her. She further deposed that as soon as she woke up the aforesaid three persons hit her on her head with danda and iron rod as a result she got injured and went unconscious and somewhat became conscious after three-four days and it took a week to regain her full consciousness. This witness was medically examined and a medical report was prepared. According to Dr. K.K. Karoli (P.W. 7) total three injuries were found on her person the details of which was given in the above mentioned paragraphs. According to Dr. Karoli all the above injuries were not possible with a single blow, it was possible only when atleast two blows were inflicted. The learned Sessions Judge in his findings also stated that when she was sleeping in the room how is it possible that she was found unconscious in the varandah from where she was sent for hospital. This means she was not fully unconscious at the time of assault. He also gave his finding that she must not have seen the incident as it was not possible that a person suddenly woke up from sound sleep and then immediately afterwards became unconscious after being his on her forehead. He, therefore, on these grounds discarded the evidence of eyewitness P.W. 4 as doubtful. 9 As far as M.P.S. Gill (P.W. 5) is concerned the learned Sessions Judge has recorded his finding that P.W. 5 has deposed on oath that on 7th /8th October 2002 midnight at about 1.00 A.M. to 1.30 A.M. he was sleeping in the room along with his brother and sister. His mother and father were sleeping outside. The two servants were in the next room. He woke up at about 1.30 A.M. after hearing the noise of some persons walking close by. He saw 7-8 persons armed with lathi coming towards him. He recognized Sohan Singh, Paramjeet and Lakhbir amongst those persons. Paramjeet Singh hit him with danda on which iron ring was attached. After being hit he lost consciousness and regained his conscious only after thee days in the hospital. According to Dr. K.K. Karoli (P.W. 7) three injuries were found on us person the details of which was given in the above mentioned paragraphs. According to Dr. Karoli all the above injuries were not possible with a single blow, it was possible only when atleast two-three blows were inflicted. According to Dr. Karoli, on examining the injuries of the P.W. 4 and P.W. 5 it is clear that the two injured should regain consciousness within 24 hours but the injured regain consciousness after some days. On the basis of these findings he also discarded the evidence of eyewitness. P.W. as doubtful. As far as Shamsher Singh (P.W. 6) is concerned the learned Sessions judge has recorded his finding that he has deposed on oath that on 7th /8th October 2002 midnight at about 12.30 A.M. to 1.00 A.M. he was sleeping in the room with his elder brother and elder sister and her daughter. He woke up on hearing his brother crying and saw that 7-8 persons were assaulting his brother with iron rods. As he come forward to save his brother Lakhbir hit him on his head with iron rod. After getting hit by the iron rod on his dead he lost consciousness after 10-15 seconds. According to Dr. K.K. Karoli (P.W. 7) four injuries were found on his person the details of which was given 10 in the above mentioned paragraphs. According to Dr. Karoli all the above injuries were not possible with a single blow, it was possible only when atleast two blows were inflicted. Therefore, the evidence of eyewitness P.W. 6 was also discarded as doubtful merely on medical evidence. Further the learned Sessions Judge has twisted the statements of Shamsher Singh (P.W. 6) in the following manner: Shamsher Singh had only stated about the incident that was already discussed in the above mentioned paragraphs of my judgment but he had stated nothing about the conspiracy. Prosecution had also examined Surender Pal Singh, Advocate (P.W. 3). He had also not stated anything about the incident or conspiracy. He had only stated that he was appointed as counsel in the Court cases that were being contested with deceased Ram Singh and handed over some documents relating to said Court cases to Investigating Officer, Mr. Vijay Kumar............. ......."Uski ferd bani. Kewal uus ferd ko aur uun kagjaat ko saabit kiya hain. Is prakar jo sakshi ghatna kae liye kahee gayee, unsae jis prakar ghatna abhiyukta Sohan singh, Paramjeet Singh vaa Lakhbir Singh dwara Kahana Kahaa gayaa hain, siddh naihn hotaa hain." In connection with the aforesaid murder Bholu, the scribe of the F.I.R. was examined as P.W. 1 by the prosecution who has deposed that in the morning at about 7.45 A.M. when he reached the house of Ram Singh he saw that three persons namely, Ram Singh, his wife Bhajan Kaur and their servant were lying dead whereas Mahender, Shamsher, Balbir and sister of Mahender were lying injured. He has deposed that when he came on the road he met Rakesh and both of them went to Jawalpur where one Rakesh Kumar, Advocate also met them in Jwalapur who has written the complete report which was submitted and was described as First Information Report (Ex. Ka-1). The witness has also accompanied the police and came on the spot along with 11 Police officials and the dead bodies were lying their and the police has collected from the spot bed sheet, pillow, one blood stained file cover, blood stained mud, simple mud, one lathi were seized from the spot. The witness has also stated that the lathi is the same which was sealed on the spot and the boxes were also the same in which blood stained mud and simple mud were sealed at the time of incident. Even in the cross examination the witnesses has deposed that he himself has lodged the report and he has also deposed that he knows the Advocate who has prepared the F.I.R. on his instructions. It was also deposed by the deponent that the injured persons were lying unconscious. The prosecution has also examined Sonal Prince (P.W. 2) who has deposed that on 8th October 2002 he had taken injured Shamsher Singh to P.G.I. Chandigarh and Shamsher Singh is his friend. The rest of the averments were absolutely denied. Prosecution then examined Surinder Pal Singh who was an Advocate of Ram Singh and he was a formal witness. The prosecution has also examined Smt. Gurdeep Kaur wife of Dharam Veer Singh as P.W. 4. She ahs stated that on 7th /8th October 2002 midnight at about 12.30 A.M. to 1.00 A.M. her father and mother were sleeping in the varandah and she and her two brothers were sleeping in the room. She woke up after hearing groaning sound of his brothers and saw Sohan Singh, Paramjeet, Lakhbir Singh assaulting his brothers. Sohan Singh was armed with danda, Paramjeet was also having a danda with an iron ring attached to it and Lakhbir Singh was having iron rod. These three persons were accompanied with another 6-7 persons who were not known to her. She has stated that Sohan Singh is her real uncle and Lakhbir Singh & Paranjeet Singh are sons of Sohan Singh. As soon as she woke up the aforesaid persons hit her on her head with danda and iron rod as a result she got injured and went unconscious and after three-four days 12 when she regain her conscious she was informed that her father and mother had been killed along with one servant. She has further stated that there was a land dispute between his uncle and his father and his uncle wanted to grab the land of his father. According to her, his father taken some loan from Ashwani Kumar. Ashwani Kumar was pressurizing his father to pay the loan which he had taken from him and was also keen to take possession of the land of his father. In this regard a case was also going on in the Civil Court between them. The prosecution has also examined M.P.S. Gill (P.W. 5) who has deposed that on 7th /8th October 2002 midnight at about 1.00 A.M. to 1.30 A.M. he was sleeping in the room along with his brother and sister. His mother and father were sleeping outside. He woke up at about 1.30 A.M. after hearing the noise of some persons walking close by. He saw 7-8 persons armed with lathi coming towards him. He recognized Sohan Singh, Paramjeet and Lakhbir amongst those persons. Paramjeet Singh hit him with danda on which iron ring was attached. After being hit he lost consciousness and regained his conscious only after three days in the hospital. According to P.W. 5, a Court case was also going on between his family and Paramjeet Singh with regard to execution of a fake "will" whereby his uncle had fraudulently converted the total land in favour of his sons. P.W. 5 has also deposed that his father deceased Ram Singh had taken a loan of Rs. 2,50,000/- from Ashwani Mittal for the purpose of his sister's marriage. Ashwani Mittal had fraudulently executed the sale deed of 75 bighas of land of his father in his favour and was blackmailing his father and joined hands with his uncle, Sohan Singh, who was an opposite party to him. Ashwani Kumar has also threatened his father of dire consequences. P.W. 5 had also deposed that with this motive in mind, the conspiracy was hatched by Ashwani Mittal in 13 connivance with these aforesaid persons eliminate his entire family. The prosecution has also examined Shamsher Singh (P.W. 6 ) who has deposed that on 7th/ /8th October 2002 midnight at about 12.30 A.M. to 1.00 A.M. he was sleeping in the room with his elder brother and elder sister and her daughter. He woke up on hearing his brother painful cries and saw that 7-8 persons were assaulting his brother with iron rods. As he come forward to save his brother Lakhbir hit him on his head with iron rod. After getting hit by the iron rod he lost consciousness after 10-15 seconds. The prosecution has also examined Dr. K.K. Karoli (P.W. 7), senior Medical Officer, District Hospital Haridwar. The findings of P.W. 7 on the person of the injured persons have already been discussed in detail in the aforementioned paragraphs. The prosecution has also examined Dr. S.S. Lal, Medical officer, Canal Dispensary, Mayapur, Haridwar. The findings of P.W. 8 on the dead bodies of the deceased have already been discussed in the aforementioned paragraphs. In his statement Mr. Yogender Singh, S.S.I. (P.W. 9) has stated on oath that on 08.10.2002 he was posted in Thana Jwalapur as S.S.I. On getting the information that a triple murder had taken place in Gill Farm House at Ranipur Jhal and some persons are lying injured there, he along with his S.H.O. rushed to the place of incidence. They instructed the police officials and on their instructions the injured were taken to District Hospital. The dead bodies were sent for postmortem after Panchyat Nana were prepared separately for each deceased and letters were also dispatched to C.M.O. for conducting postmortem on the dead bodies. Dog squad was also called at the place of incidence. He has also stated that he 14 prepared the relevant documents at the place of incidence that were numbered as Ex. Ka-24. The state of Mr. Vijay Kumar, S.H.O., Thana Jwalapur, Haridwar was also recorded on 15.07.2003. He has stated that he was deputed for conducting investigation of this case. According to him the complainant reached the police Station at about 8.30 A.M. in the morning and their after F.I.R. was lodged. After reaching the place of incidence, the map of the place was prepared by him and was numbered as Ex. Ka-25. On 10.10.2002 he arrested Sohan Singh, Paramjeet, Pradeep Chauhan, Mohit Raza and Ashwani Kumar on the basis of statements of Sonal Prince and M.P.S. Gill. He has also recorded the statement of other witnesses on 12.10.2002. On 19.10.2002 he recovered pocked diary of accused Paramjeet from his residence in which telephone numbers of other accused were found written. He has also recorded the statement of injured Balbir Singh on 21.10.2002. On 02.11.2002 the statements of M.P.S. gill, Sonal Prince and Gurdeep Kaur were recorded under Section 164 Cr.P.C. in the office of Chief Judicial Magistrate. On 08.11.2002 he handed over the investigation of the case of