IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Jail Appeal No. 35 of 2006 Baba Harinath S/o Chela Prem Nath R/o Dallecha, Prem Nagar Tehsil Kakda, Police station Nakha Mandi District Bikaner (Rajesthan) …Appellant(In jail) Versus State of Uttarakhand …Respondent Present: Mr. Suresh Mishra, Advocate present for the appellant. Mr. P.S. Bora, A.G.A. present for the State. Coram: Hon’ble Prafulla C. Pant, J. Hon’ble Nirmal Yadav, J. Oral: Prafulla C. Pant, J. This appeal preferred, under Section 374 of Code of Criminal Procedure, 1973 (for short Cr.P.C.) is directed against judgment and order dated 7th May 2002 passed by Sessions Judge Pauri Garhwal in Sessions Trial No. 11 of 2000 whereby appellant Baba Hari Nath and co-accused Surendra Kumar (since acquitted) were convicted under Section 302 read with Section 34 and under Section 201 read with Section 34 of the Indian Penal Code, 1860 (for short I.P.C.). Each one of the convicts, was sentenced to imprisonment for life. 2. Heard learned counsel for the parties and perused the lower court record. 2 3. Prosecution story in brief is that Jemison Rassel, a U.S. citizen, was staying in room no. 91 in Ved Niketan Dham Ashram , Laxman Jhoola, Rishikesh. On 28.12.1999, (PW-3) Rajesh Kumar gave a report (Ex. A-3) at police station Laxman Jhoola, district Pauri Garhwal stating therein that after 22.12.1999 Jemison Rassel, who was staying in the Ashram, was missing. He further reported that two U.S. ladies namely, Hilary Stlouls Mertaugm and Avtvmn Grale Agbsen came to enquire about him on 23.12.1999 but the room of Jemison Rassel was found locked. A week thereafter on 04.01.2000 PW-2 Dr. J. Arun Raja Selbol lodged a first information report (Ex. A-1) at the police station Laxman Jhoola complaining that whereabouts of Jemison Rassel are not known and he appears to have been abducted. On the basis of said report check report (Ex. A-10) was prepared and crime no. 3 of 2000 was registered relating to offences punishable under Section 365 I.P.C. against unknown persons. PW-8 Inspector Kailash Pawar started investigation of the case. On 06.01.2000 during investigation it came to the knowledge of the Investigating Officer through Vijay Kumar Dhaka (PW-4) that accused Surendra Kumar had come to his shop to sell travellers cheque belonging to a foreigner but since it did not bear passport number, he refused to buy the same. On the very day (06.01.2000) accused Surendra Kumar was arrested, who disclosed to the police that he along with Hari Nath 3 had committed murder of Jemison Rassel. Thereafter accused Baba Hari Nath (present appellant) was also arrested. The prosecution case is that dead body of Jemison Rassel was recovered on pointing out of Baba Hari Nath from the Ganges on 24.01.2000 and inquest report (Ex. A-6) was prepared. Dead body was sent for postmortem examination. PW-6 Dr. O.P. Sharma conducted postmortem examination on 25.01.2000 on the dead body, and prepared autopsy report (Ex. A-7). He recorded the two ante mortem injuries both contusions, one of them was contusion in an area 8 cm. x 3 cm., on the front of the neck. The medical officer opined that the deceased had died due to shock, internal haemorrhage and asphyxia as a result of ante mortem injury. On completion of the investigation, the Investigating Officer submitted chargesheet (Ex. A-19) against the two accused, Surendra Kumar and Baba Hari Nath (present appellant) for their trial in respect of offences punishable under Section 302 read with Section 34 and under Section 201 read with Section 34 I.P.C. 4. The Magistrate on receipt of the chargesheet, after giving necessary copies to the accused as required under Section 207 of Cr.P.C., appears to have committed the case to the court of Sessions for trial. The trial court after hearing the parties on 08.06.2000 framed charge of offences punishable under Section 302 read with 34 and under Section 201 read with 4 Section 34 I.P.C. against the two accused, Surendra Kumar and Baba Hari Nath to which they pleaded not guilty and claimed to be tried. On this prosecution got examined PW-1 Anil Srivastava, PW-2 Dr. J. Arun Raja Selbol, PW-3 Rajesh Kumar, PW-4 Vijay Singh Dhaka, PW-5 Narain Dutt, PW-6 Dr. O.P. Sharma, PW-7 S.I. Vedpal Singh and PW-8 Kailash Pawar. The oral and documentary evidence was put to the accused under Section 313 Cr.P.C. in reply to which they alleged same to be false. However, no evidence in defence was adduced. The trial court after hearing the parties found the two accused, namely, Surendra Kumar and Baba Hari Nath guilty of charge of offences punishable under Section 302 read with Section 34 and under Section 201 read with Section 34 I.P.C., and sentenced each one of them to imprisonment for life. Aggrieved by said judgment and order dated 07.05.2002 passed by Sessions Judge, Pauri Garhwal in Sessions Trial No. 11 of 2000 criminal appeal no. 126 of 2002 was filed by Surendra Kumar before this Court. A Division Bench of this Court heard said appeal and allowed the same vide its judgment and order dated 04.12.2004. This appeal was preferred by co-accused Baba Harinath after acquittal of Surendra Kumar by this court. After condoning the delay in filing the appeal, this appeal was admitted by this court on 08.03.2006. 5. The main argument advanced on behalf of the appellant is that co-accused Surendra Kumar on the 5 same set of evidence has already been acquitted by this court vide its order dated 04.12.2004 passed in criminal jail appeal no. 126 of 2002. It is further pleaded that present appellant Baba Harinath is languishing in jail for last more than 10 years. It is contended that on the same ground on which co-accused Surendra Kumar was acquitted, the present appellant is also entitled to be acquitted. 6. It is a case of circumstantial evidence in which no one was named in the First Information Report. The motive of commission of crime is said to be that two accused wanted to take travellers cheques from the foreign national (deceased), and when he refused, he was murdered by strangulating him, with common intention by the two accused. In the judgment dated 04.12.2004 passed in criminal jail appeal no. 126 of 2002 filed by the co-accused Surendra Kumar, this Court has observed that travellers cheques were not recovered nor proved by the prosecution to connect the accused in the crime. The same ground applies to the present appellant also. While acquitting the co-accused Surendra Kumar this Court in the aforesaid judgment also observed that Baba Basuki Nath and Sitaram were not examined in the present case and the commission of murder is said to have taken place in the ‘KUTI’ (hermitage) of the Baba Basuki Nath. The said ground applies to the present appellant also. Apart from this, it is not clear how dead body of Jemison Rassel was 6 identified by the police. The dead body must have been in highly decomposed position, when it was recovered after a period of more than one month of the death of the deceased. 7. For the reasons as discussed above, we are of the view that this appeal deserves to be allowed. The appeal is allowed. The impugned judgment and order dated 7th May 2002 passed by Sessions Judge Pauri Garhwal in Sessions Trial No. 11 of 2000 is set aside. The conviction and sentence awarded against the accused Baba Harinath is set aside. He is acquitted of the charge of offences punishable under section 302 read with section 34, and 201 read with section 34 IPC. He is in jail. He shall be set at liberty if not wanted in any other criminal case. Lower court record be sent back. Also, a copy of this judgment be sent to the Superintendent of Jail concerned. (Nirmal Yadav, J.) (Prafulla C. Pant, J.) VKG 29.10.2010