IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Government Appeal No. 304 of 2001 (Old No.296/1995) State …Appellant Versus Fakir Chandra …Respondent Sri H.C. Pujari, A.G.A. for the State/appellant Sri Lokendra Dobhal, Advocate for respondent Coram: Hon’ble B.C. Kandpal, ACJ. Hon’ble B.S. Verma, J. [Per:Hon’ble B.C. Kandpal, ACJ. (Oral)] This appeal, under Section 378(3) Cr.P.C., has been preferred by the State against the judgment and order dated 25.10.1994 passed by Ist Additional Sessions Judge, Dehradun, passed in Sessions Trial No. 42/1992, State vs. Fakir Chandra, under Sections 302/324/323/307 I.P.C. and Sessions Trial No. 20/1992, State vs. Fakir Chandra, under Section 27, 25/4 Arms Act, acquitting the accused respondent. 2- The prosecution case, in short, is that accused Fakir Chandra along with his wives Smt. Sheela and Smt. Savita and two children used to live at his residence 12, Race Course Road, Dehradun. On the date of incident in the morning in between 8.30 a.m. and 9.00 a.m. accused Fakir Chandra was doing marpeet with his wives and daughters. On hearing noise Chaman Lal Anand (PW-3), who is a neighbour 2 of the accused, gave the information about the incident at Police Chowki Lakhi Bagh. On the information Tejveer Singh, Incharge Inspector, Police Chowki Lakhi Bagh along with police force reached the house of accused Fakir Chandra. Since information with regard to incident was also given to Police Control Room, some police personnel including Constable Vikesh Kumar (PW-12) reached over there. The said police personnel reached the house of accused Fakir Chandra at 9.20 a.m. and surrounded the house of the accused. Meanwhile, a fire was shot in the house of accused Fakir Chandra. At this S.I. Tejbeer Singh along with other police personnel asked the accused to open the door. When the accused did not open the door S.I. Tejbeer Singh knocked the door. In the meantime also accused fired with his double barrel gun from the window of the house and on account of this fire S.I. Tejbeer Singh (PW 14) and Constable Vikesh Kumar (PW 12) sustained injuries. S.I. Tejbeer Singh and Constable Vikesh Kumar were brought to Hospital by jeep of Control Room Police and the F.I.R. of the incident was lodged by Head Constable Mahavir Singh (PW 15). After receiving information of this incident Sri K.K. Gautam, Incharge Inspector Kotwali, Dehradun (PW 18), S.I. J.P. Juyal (PW 16) and S.I. Y.C. Sharma (PW 13) reached the place of incident. At that time also house of the accused Fakir Chandra was locked from inside. The said police personnel had challenged the accused to open the door of the house and when the accused did 3 not open the door the police had thrown ball of tear gas by breaking the window, due to which there was fume in the house. At the same time, Minakshi Saini, elder daughter of accused Fakir Chandra, came out from the house and she stated that her father killed her both mothers. At the same time, accused Fakir Chandra also came out from the house having double barrel gun in his hand. The police arrested the accused with gun and on identification of accused himself recovered the Khukhri, by which accused assaulted at his both wives. The dead body of both the wives of accused, Smt. Sheela and Smt. Savita, were also recovered from the house. The two children of accused, who were hidden under the cot, were also came out from the house. The F.I.R. of the incident was lodged by S.I. Y.C. Sharma at P.S. Kotwali, Dehradun. The police made investigation in Case Crime No.669 under Section 307 I.P.C. S.I. K.K. Gautam, S.I. Dheerajpal Singh Malik, S.I. Jagveer Singh and S.I. Rajveer Singh Rawat investigated the matter in Case Crime No. 670 under Section 302 I.P.C. After completion of investigation the police submitted separate charge sheet in both the cases against the accused Fakir Chandra. 3- The respondent-accused was charged under Section 307 in Case Crime No. 669 and under Section 302 in Case Crime No. 670 by the trial court. The accused-respondent denied the charge and claimed the trial. 4 4- The prosecution in order to bring home the guilt of the accused examined PW-1 Km. Minakshi, PW-2 Manish, PW-3 Chaman Lal Anand, PW-4 Pooran Chand, PW-5 Dr.R.C. Nautiyal, PW-6 Km. Charu, PW-7 Dr. R.P. Goyal, PW-8 Dr. B.C. Ramola, PW-9 Laxmi Chandra, PW-10 Kapil Dev, PW-11 Joti Ram, PW-12 Constable Vikesh Kumar, PW-13 S.I. Y.C. Sharma, PW-14 S.I. Tejveer Singh, PW-15 Head Constable Mahavir Singh, PW-16 S.I. J.P. Juyal, PW-17 S.I. Satyapal Singh Malik, PW-18 Inspector K.K. Gautam and PW-19 S.I. Rajbeer Singh. 5- The post mortem on the dead body of the deceased Smt. Sheela Devi was conducted by Dr. R.P. Goyal and following ante mortem injuries were found on her person: (i) Abrasion 3 cm. X 2 cm. on front of right knee joint (ii) Abrasion 3 cm. X 2 cm., 6 cm. above of the right knee joint on thigh (iii) Abrasion 2.5 cm. X 2 cm. on inner aspect of left knee joint (iv) Incised wound with ragged and contused margin oblique and spindle shaped 15 cm. x 5 cm. x full thickness through and through searching back of left knee joint with a missed wound 5 cm. x 3 cm. extending from inner aspect of left knee joint of the outer aspect of 5 upper 1/6the of left leg. All the bone, ligament, muscles and vessels are dissected. 6- The post mortem on the dead body of the deceased Smt. Savita was also conducted by Dr. R.P. Goyal and following ante mortem injuries were found on her person: (i) Lacerated wound 2 cm. x 1 cm. x muscle deep, vertical extend from the upper left lip to the left lower lip at angle of mouth (ii) Incised wound 1.5 cm. x 2 cm. x skin deep horizontal 3 cm. below lower eye lid (iii) Contusion and abrasion 10 cm. x 4 cm. on left arm outer aspect (iv) Lacerated wound 1 cm. x ¾ cm. x ¾ cm. deep on upper 1/3rd of right arm (v) Abrasion 3 cm. x 2 cm. on top of left shoulder (vi) Lacerated wound 1 cm. x ¾ cm. x ½ cm. on right side of neck 3 cm. above middle of clavicle (vii) Lacerated wound ¾ cm. x ¾ cm. on deep on right side of chest. A palate taken out from wound (viii) Multiple lacerated wound 8 in number on front of chest 3 cm. x 2 cm. deep bone to ½ cm. x ½ cm. skin deep out of which NAD Non 6 grand one wound on upper 1/3rd of left side of sternum gone in non opened through the sternum, plura, living heart spleen diaphragm and out just above left crest on back with a NAD wound on it 4 cm. x 3.5 cm. (margins, ragged). 7- Accused-respondent Fakir Chandra in his statement under Section 313 Cr.P.C. denied the prosecution case and alleged that he has been falsely implicated. According to the defence, on the date of incident accused was in the state of insanity and he was captured in the upper storied room of his house by his wives and he had to be brought to Saharanpur for treatment. Both the wives had quarreled with each other on the ground that as to who would go to Saharanpur with husband. The quarrel between them had taken a serious turn to the extent that one wife assaulted another wife with Khukhri and another assaulted the first wife with gun. Consequently, both the wives died in the quarrel between them. As accused Fakir Chandra was a rich person and a brutal murder was taken place in his house, the police had falsely implicated the accused Fakir Chandra in order to show their attainment. 8- The learned Sessions Judge, after hearing learned counsel for the parties and considering the entire evidence available on record, acquitted 7 the accused-respondent of the charges levelled against him. 9- Feeling aggrieved the State has preferred the present appeal before the Allahabad High Court, which has been transferred to this Court after creation of new State. 10- Heard Sri H.C. Pujari, learned A.G.A. for the State/appellant, Sri Lokendra Dobhal, learned counsel for the respondent and perused the record. 11- Learned A.G.A. for the appellant has submitted that the trial court did not assess the evidence properly and committed illegality in acquitting the accused after giving him the benefit of exception under Section 84 I.P.C. 12- It is necessary to go through the evidence of the witnesses examined in the case. 13- The prosecution has produced two eye witnesses of the occurrence (PW 1 Km. Minakshi and PW-2 Manish) and they are daughter and son of the accused and deceased-wives. PW-1 Km. Minakshi in her statement, in the form of Question-Answer, has deposed that she had two mothers Smt. Sheela Devi and Smt. Savita and they had died. Before their death, both were living at 12. Race Course Road, Dehradun. This witness has stated that on the date of incident her mothers had quarreled and when she 8 reached there in order to intervene she got struck with a flowerpot. She has further deposed that her both the mothers during quarrel sustained injuries and died. This witness has been declared hostile. PW-2 Manish is the son of the accused Fakir Chandra. At the time of giving statement he was eight years of age. This witness has also given the same version before the trial court that his both the mothers fought with each other and died. He has further stated that quarrel did not take place between his father and mothers. He has also alleged that at the time of incident three firearm shots were fired and Khukhri was with his mother Savita. This witness also did not support the prosecution case and for this reason he was also declared hostile at the request of the prosecution. 14- The prosecution has examined Chaman Lal Anand as PW-3, who is the neighbour of the accused. This witness has stated in his evidence that on the date of accident at about 8.00 a.m. on hearing sound when he reached at the house of accused he found many people there. This witness also stated that house of the accused- respondent was locked from inside, therefore he could not see as to what was happening inside the house. This witness also stated that he gave the information of the incident at Police Chowki Lakhibagh and he again returned to his shop. After coming back from shop for having the meal he found the police near the house of accused 9 Fakir Chandra. This witness also stated that he might have heard the sound of fire, but that fire was shot before his arrival there. The prosecution has also examined Pooran Chandra PW-4. He had stated that on hearing noise when he reached near the gate of house of the accused, he found that both the wives of accused Fakir Chandra were abusing each other. The statement of these witnesses gives support to the fact that both the deceased quarreled with each other before their death. 15- The prosecution examined Laxmi Chandra as PW-9, Kapil Dev as PW-10 and Jyoti Ram as PW-11. These witnesses have stated in their statements that they did not see any incident near the house of accused Fakir Chandra and therefore their statement is of no help to the prosecution. 16- The prosecution examined PW-18 Sri K.K. Gautam Police Inspector and PW-13 Y.C. Sharma PW-13. These witnesses have stated that on hearing the fire sound they reached the place of occurrence. These witnesses also stated that when they reached the house of accused Fakir Chandra the house of the accused was locked from inside and despite their challenge he did not come out from the house and ultimately they had to break open the window and door and thrown the ball of tear gas, due to which fume collected inside the house. Thereafter, Fakir Chandra come out from the house and he 10 was got arrested. Although, these police witnesses have alleged that first of all the daughter of accused Fakir Chandra came out from the house and she had stated that her father has killed her both the mothers, but this statement of the police personnel is belied from the statement of witness PW-1 Km. Minakshi, who has categorically stated that her both the mother quarreled with each other, they sustained injuries and ultimately died. 17- So far as the benefit of exception under Section 84 I.P.C. extended to the accused/respondent by the trial court is concerned, it has come on record that one day before the incident the accused had become furiously mad and for this reason he was kept closed in a room on upper storey of the house. Further, on 19.10.1991 the accused was medically examined by Dr. Anil Bhatnagar in District Jail, Dehradun and the doctor found him mentally unfit. He was suffering from mental ailment. PW-3 Chaman Lal Anand and PW-4 Pooran Chandra, who are the neighbours of the accused, also stated that the accused had become mad many times in past years also. Therefore, we do not find any infirmity in the impugned judgment and order whereby the trial judge has extended the benefit of exception under Section 84 I.P.C. to the accused. 18- From the above discussion, we do not find any material on record which may prove the 11 guilt of the accused beyond reasonable doubt. No one has come forward to narrate against the accused Fakir Chandra that actually he had killed his two wives. The so called eye witnesses PW-1 and PW-2 also did not support the prosecution case, rather they have narrated that their mothers quarreled with each other and succumbed to the injuries suffered by them at their own hands. It has also amply been proved that the accused was suffering from mental ailment and for the sake of argument if it is taken to be true that the accused has killed the deceased-wives, then in that situation he has rightly been given the benefit of exception under Section 84 I.P.C. We are in total agreement with the findings recorded by the trial court and as such the appeal is liable to be dismissed. 19- Accordingly, the Government Appeal is dismissed. The acquittal order dated 25.10.1994 passed by Ist Additional Sessions Judge, Dehradun, is hereby confirmed. (B.S. Verma, J.) (B.C. Kandpal, ACJ.) 10-09-2009 SP