IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 1305 of 2001 (Old No. 1135 of 1992) Raghubir Singh S/o Ajab Singh Resident of Village Tikpak Patwari Circle Mangrauli, Teshil Karanprayag, Distt. Chamoli. …………. Appellant Versus The State ………. Respondent Mr. N.S. Negi and Mr. Rajendra Kotiyal, Advocates for the appellant. Mr. H.C. Pujari, Addl. Govt. Advocate for the respondent-State. Coram: Hon;ble Prafulla C. Pant, J. Hon’ble Dharam Veer, J. Hon. Prafulla C. Pant, J (Oral) This appeal, preferred under Section 374(92) of the Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), is directed against the judgment and order dated 23.06.1992, passed by learned Sessions Judge, Chamoli at Gopeshwar, in Sessions trial No. 20 of 1991, whereby accused / appellant Raghubir Singh has been convicted under Section 302 of the Indian Penal Code, 1860 (hereinafter referred as I.P.C.) and sentenced to undergo imprisonment for life. 2) Heard learned counsel for the parties and perused the lower court record. 3) Prosecution story, in brief, is that Prem Singh (deceased), resident of Village Pajyana, within the limits of Patwari Circle Mangrauli, Tehsil Karanprayag, District Chamoli, was a witness in a Sessions Trial No. 07 of 1991, pending against Raghubir Singh (accused / appellant). The date fixed in said case was 21st of February 1991. However, a day before, on 20.02.1991, when Prem Singh (deceased) had gone to Village Thirpak, he did not return from there and found lying dead in a cause-way down the hill, within the limits of Village Pajyana, between Thirpak and Ghaat. His father Bachan Singh (P.W. 1) gave the first information report (Ext. A –1) to Patwari Mangrauli, that Pan Singh (P.W. 3) informed him that Prem Singh had fallen in the cause-way and lying dead. As such, in the first information report neither there is any allegation of commission of murder, nor anyone named. (in the interior hills (of Uttarkhand), certain Revenue Officials are given police powers, under U.P. Government Notification No. 494 / VIII –418 -16 dated 7 th March 1916). Bishambar Datt, Patwari, on the aforesaid report went to the spot, took the dead body in his possession, prepared inquest report (Ext. A-11), sample seal (Ext. A- 12), sketch of the dead body (Ext. A –13) and other necessary papers, and sent the dead body for postmortem examination. P.W. 5 Dr. H.N. Srivastava, conducted the postmortem examination on the dead body of Prem Singh on 22.02.1991, and prepared autopsy report (Ext. A –3). In the said report he opined that cause of death of the deceased was ante mortem head injury. It appears that thereafter Khimuli Devi (P.W.2), widow of the deceased, moved an application to the District Magistrate for transferring the investigation to the regular police of police station Karanprayag, on which the investigation was entrusted by the Naib Tehsildar to Anusuya Prasad Khanduri, the Supervisory Qanoongo (P.W. 6) Said Investigating Officer investigated the crime and after interrogating the witness, inspecting the spot and collecting other material on record, submitted charge sheet (Ext. A –10) against the accused Raghubir Singh for his trial in respect of offence punishable under Section 302 of I.P.C. 4) The Magistrate, on receipt of the charge sheet, 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 Session for trial. Learned Session Judge after hearing the parties on 13.08.1991, framed charge of offence punishable under Section 302 of I.P.C. against accused / appellant Raghubir Singh, who pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1 Bachan Singh (complainant and father of the deceased); P.W. 2 Khimuli Devi, (widow of the deceased); P.W. 3 Pan Singh; P.W. 4 Ukhamu Ram (deceased hostile); P.W. 5 Dr. H.N. Srivastava (who conducted the postmortem examination on the dead body of of Prem Singh) and P.W. 6 Anusuya Prasad Khanduri, Supervisory Qanoongo, who investigated the case and submitted the charge sheet). The oral and documentary evidence was put to the accused under Section 313 of Cr.P.C., in reply to which he only admitted that he is a shopkeeper in Village Thirpak Bazaar. He further admitted that deceased Prem Singh belonged to Village Pajyana. He further admitted that he (accused Raghubir Singh ) was an accused in the case of murder of one Sajjan Singh, in which he is convicted. However, as to the rest of the evidence, the accused in his replies alleged the same to be false. In defence, D. W. 1 Kedar Singh was examined, on behalf of the accused. After hearing the parties, the trial court found accused Raghubir Singh guilty of charge of offence punishable under Section 302 of I.P.C. Thereafter, the parties were heard on sentence, and the convict Raghubir Singh was sentenced to imprisonment for life. Aggrieved by said judgment and order dated 23.06.1992, passed by learned Sessions Judge, Chamoli, in Sessions Trial No. 20 of 1991, this appeal is filed by the convict before the Allahabad High Court on 30th of June 1992, where it was admitted on 03.07.1992. The appeal is received by transfer to this Court under Section 35 of the U.P. Re-organization Act, 2000, for its disposal. 5) Before further discussion, we think it just and proper to mention here the ante mortem injuries found on the body of the deceased Prem Singh at the time of postmortem examination, which are recorded by Dr. H.N. Srivastava (P.W. 5), who conducted the postmortem examination and prepared the autopsy report (Ext. A-3). The ante mortem injuries are being reproduced below: - i) “Lacerated wound 4cm X 3 cm X scalp deep on left occipital region oblique. ii) Abraded contusion 3 cm X 1 cm on left liner part of front of leg. iii) Abraded contusion 3.2 cm X 2 cm on right lower part of the leg on front aspect. iv) Abraded contusion 4 cm X 1 cm on left side of abdomen just above Illiac region, transverse.” Apart from above ante mortem injury, one postmortem injury was also noticed at the time of autopsy by P.W. 5 Dr. H.N. Srivastava, which is Knowed wound 10 cm X 8 cm X 3 cm on right face, quadrangular, chopping of muscles and tissues by wild animal. In the autopsy report, the Medical Officer has given the opinion that cause of death of the deceased is the result of ante mortem head injury. 6) From the above medical report, it is clear that though, the deceased has died unnatural death, but it is not clear whether, it is homicidal or accidental. No weapon appears to have been used for causing death of the deceased. The defence has taken a specific plea before the trial court that Prem Singh has fallen down in a hilly track and died due to the injury suffered by him. P.W. 5 Dr. H.N. Srivastava in his cross-examination has stated that ante mortem injuries noticed on the dead body of the deceased could have been caused due to his falling down the hill. 7) P.W. 1 Bachan Singh (father of the deceased and complainant); P.W. 2 Khimuli Devi (widow of the deceased) and P.W. 3 Pan Singh, all the three have stated that deceased Prem Singh was a witness in a criminal case pending against Raghubir Singh (present appellant) and 21.02.1991 was the date fixed in said case. The three witnesses have also stated that before the day of incident the deceased was offered Rs. 2,000/- by Raghubir Singh (present appellant) with the request not to adduce evidence against him in the Court. The said motive is certainly proved on record by the prosecution witnesses, but conviction cannot be based only on the basis of the fact that deceased was a witness in the case pending against the present appellant. P.W. 1 Bachan Singh, father of the deceased, who had lodged the first information report (Ext. A-1) has stated nothing about the fact that due to aforesaid motive Raghubir Singh committed murder of Prem Singh. Rather, it is mentioned that Pan Singh (P.W. 3) had informed him that Prem Singh (deceased) had fallen down the hill and lying dead. P.W.1 Bachan Singh, father of the deceased, himself has admitted in the cross-examination that his son Prem Singh (deceased) also used to drink liquor. P.W.2 Khimuli Devi, widow of the deceased, has also admitted in her cross- examination that her husband used to take drinks. She has further admitted that where the dead body is found the cause-way is narrow. She has further stated that she had only suspicion that Raghubir Singh might have killed Prem Singh. Not only this, P.W. 3 Pan Singh, has also admitted in his cross- examination that Prem Singh used to take drinks. He has also admitted that pathway where the deceased was found dead is a hilly and slippery pathway. Apart from this, P.W. 3 Pan Singh, has disclosed yet another fact that before the incident earlier also, Prem Singh had fallen down in the same gorge, where his dead body was found and at that earlier point of time, he had to be admitted in the hospital. 8) From the above discussion of evidence, it cannot be ruled out that the deceased might have fallen down the hill and suffered the injuries recorded in the autopsy report. Merely, for the reason that he was a witness in a case pending against Raghubir Singh, it cannot be said beyond all reasonable doubt that Raghubir Singh has committed murder of the deceased Prem Singh. It is a case of circumstantial evidence. The chain of circumstance is required to be complete. There is no other circumstance proved on record except the one that the deceased was a witness in a case pending against the appellant Raghubir Singh, on the basis of which it can be said that it was Raghubir Singh and Raghubir Singh alone, who could have committed the crime. In the circumstances, we are of the view that the trial court has erred in law in holding that the prosecution has been successful in proving the charge of offence punishable under Section 302 of I.P.C. against the accused Raghubir Singh (appellant) that he committed murder of Prem Singh. 9) Therefore, the appeal deserves to be allowed. The same is allowed. The impugned judgment and order dated 23.06.1992, passed by learned Sessions Judge, Chamoli, in Session Trial No. 20 of 1991, is set aside. The accused / appellant Raghubir Singh is acquitted of the charge of offence punishable under Section 302 of I.P.C., relating to commission of murder of Prem Singh. He is on bail. On need not to surrender. The Registry is directed to sent the lower court record back of the trial court. (Dharam Veer, J.)(Prafulla C. Pant, J.) Dt. May 12, 2008 H.Negi