RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No. 291 of 2001 (Old No. 985/1993) Kishna Nand & Another .…. Appellants/Accused Versus State of U.P. …………… Respondent July 15, 2009 Mr. Pankaj Purohit, Advocate for the appellants. Mr. M.A. Khan, Brief Holder for the State/respondent. HON’BLE DHARAM VEER, J. This appeal, preferred by the appellants under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.), is directed against the judgment and order dated 31.5.1993 passed by the Sessions Judge, Pithoragarh in Sessions Trial No. 18 of 1992, State v. Kishna Nand & Ors., whereby the learned Sessions Judge has convicted the appellants/accused Kishna Nand and Narain Datt under Section 325 read with Section 34 of Indian Penal Code, 1860 (for short, I.P.C.) and each of the appellants/accused were sentenced to undergo three years’ R.I. along with fine of Rs. 500/- and in default to undergo six months’ further R.I. However, appellants/accused were acquitted of the charges under Section 302 read with Section 34 IPC and Section 201/149 IPC. Learned Sessions Judge also acquitted the co-accused Ram Datt, Srikishan, Tula Ram and Nanda Ballabh of the charge under Section 201/149 IPC. 2 2. Chief Judicial Magistrate, Pithoragarh has reported vide his report dated 15.5.2009 that the appellant no. 2 Narain Datt has died on 31.3.2008. Hence, the appeal filed by appellant no. 2 Narain Datt stands abated. 3. In brief, the prosecution case is that on 21.3.1991, Nanda Ballabh Joshi and Jeet Singh Latwal had moved an application before SDM, Lohaghat with the averment that Laxmi Datt was murdered on 14.3.1991 at 4 p.m. and it was averred that Laxmi Datt was murdered by Kishna Nand and Ram Datt, Gram Pradhan of the village had given Rs. 10,000/- to Patwari, Mulakot and after that body was cremated. It has been further averred that Gram Pradhan had old enmity with Laxmi Datt due to which the abovesaid murder was committed. With these averments the application Ex. Ka-2 was moved. On the basis of this application the chick FIR Ex. Ka-3 was prepared by Supervisor Kanoogo on 3.5.1991 at 4.30 p.m. (In rural hilly areas of State of Uttarakhand, the Patwaris and certain revenue officials are vested with police powers vide U.P. Govt. Notification NO. 494/VIII-418-16 dated 7/3/1916). The investigation of this case was started by PW6 Bhawani Ram, Kanoongo who during the course of investigation has prepared the site plan Ex. Ka-4. During the course of investigation he has recorded the statement of the witnesses and after completing the investigation he has filed the chargesheet Ex. Ka-5 against the appellants/accused and the co-accused, namely, Ram Datt, Siromani @ Srikishan, Tula Ram and Nanda Ballabh (acquitted by the trial court). One application during the course of investigation was also moved, that is Ex. Ka-1. 4. Chief Judicial Magistrate, Pithoragarh has committed the case to the court of Sessions on 22.7.1992 after giving the necessary copies of the documents to the accused and 3 the other co-accused (acquitted by the trial court) as provided under Section 207 Cr.P.C. 5. Learned Sessions Judge has framed the charges against the appellants/accused Kishna Nand and Narain Datt under Section 302 read with Section 34 IPC and under Section 201 read with Section 149 IPC on 18.8.1992 and on the same day the charges were framed against the co-accused under Section 201 read with Section 149 IPC. The charges were read over and explained to the appellants/accused and the co-accused who pleaded not guilty and claimed to be tried. 6. To prove its case, the prosecution has examined PW- 1 Smt. Madhavi Devi; PW2 Smt. Kamla Devi; PW3 Km. Hema; PW4 Devki Nandan Joshi; PW5 Bhagwan Singh Bist, Patwari, Mulakot and PW6 Bhawani Ram, Kanoongo and I.O. of the case. 7. Thereafter, the statement the appellants/accused and the co-accused (acquitted by the trial court) was recorded under Section 313 of Cr.P.C. The oral and documentary evidence were put to each of the appellants/accused and the co-accused (acquitted by the trial court) in question form, who denied the allegations made against them. However, in defence they did not produce any documentary or oral evidence. 8. After hearing learned counsel for the parties and after appreciating the evidence on record, the learned Sessions Judge, Pithoragarh vide his judgment and order dated 31.5.1993 convicted the appellants/accused and sentenced them as discussed above. Against the aforesaid 4 judgment and order dated 31.5.1993, the appellants/accused have preferred the present appeal. 9. I have heard learned Counsel for the parties and have carefully perused the entire material available on the record. 10. To prove its case, the prosecution has examined PW1 Smt. Madhavi Devi wife of Laxmi Datt who has stated that the appellants/accused Kishna Nand and Narain Datt and the co-accused Ram Datt, Siromani, Tula Ram and Nanda Ballabh (acquitted by the trial court) were known to her and the resident of her village. Her statement was recorded on 15.9.1992. She has stated that the said incident has taken place about one and half year before. In the banzar field of Smt. Maheshwari, her cow has gone for grazing and her daughter Km. Hema, PW3 was gone along with the cow to look after the cow. Smt. Maheshwari has thrown the stone on her cow. On this, her daughter Km. Hema, PW3 has come in the house in weeping condition to her father Laxmi Datt and told the entire incident. Thereafter she along with her husband has gone to see the loss of Smt. Maheshwari by the cow. When they were going to see the loss of Smt. Maheshwari then she had abused them. Smt. Maheshwari gone to call the village Pradhan. They come back to the house. Then the appellants/accused Kishna Nand and Narain Datt has asked Maheshwari where she is going. Then Maheshwari told that she is going to call the village Pradhan. Then the appellants/accused told Maheshwari do not go to the village Pradhan, they will teach the lesson to Laxmi Datt. On this both the appellants/accused has caused the injury to Laxmi Datt with lathi. On the intervention in the quarrel both the appellants/accused also caused the injuries with lathi to her. PW2 Smt. Kamla Devi reached 5 the place of occurrence. Both the appellants/accused also beaten Smt. Kamla Devi with lathi. On this she and her daughter cried then Keshav Datt reached and intervened in the quarrel and asked the appellants/accused do not beat Laxmi Datt. Siromani @ Srikishan has also reached the place of occurrence. Thereafter the appellants/accused have gone from the place of occurrence. After that she had taken her husband in the house and in the night her husband had died. She has further stated that she and her daughter had also received the injury in her back. She has further stated that the appellants/accused had threatened her not to tell the truth. She has further stated that the appellants/accused have told to give the statement to the Patwari that her husband had died due to fall from the horse. After that her husband was cremated. 11. In the cross-examination she has stated that the Patwari, Mulakot had come on the place of occurrence. Till then body was there. Patwari had asked her then she told the Patwari that her husband had died due to fall from the horse. She has further stated that on the 5th day of the death of her husband her son Devki Nandan Joshi, PW4 had come from Delhi and he has performed all the ceremonies after death of her husband and after finishing the ceremonies her son had gone to Delhi. She has further stated that on the date of the incident her husband has a horse and that her husband had received the injury at 4 p.m. and died at 8 p.m. She further stated that she has not lodged any report in the police station. 12. PW2 Smt. Kamla Devi and PW3 Km. Hema, daughters of PW1 Smt. Madhavi Devi have corroborated the statement of PW1 Smt. Madhavi Devi. 6 13. PW4 Devki Nandan Joshi, son of the deceased and his statement was not relied by the trial court and who was not present on the date of the incident and has come on the 5th day after the death of his father. 14. PW5 Bhagwan Singh Bist who has stated that in March, 1991 he was Patwari in Mulakot. On 14.3.1991 he has gone in the village Punoli and on 15.3.1991 he has returned back to his headquarters through village Kazina and he reached Kazina between 10.30 to 11 a.m. He heard the noise of crying then he asked why the people are weeping. Then he came to know that Laxmi Datt has died. Then he asked the wife of Laxmi Datt and co-accused Ram Datt, who told him that Laxmi Datt was old man and was ill and died due to the fall from horse. Ram Datt told that they are going for cremation. After that he has gone from the place of occurrence. Till then he has no doubt about the murder. He has further stated that there is a hospital in Mulakot and distance from Kazina to Mulakat is 5 kms. 15. PW6 Bhawani Ram, I.O. of the case has stated that on 3.5.1991 he was posted as Kanoongo, Devidhura. The investigation of this case was entrusted to him by Shyamu Ram, Naib Tehsildar and this order was passed on the report of Nanda Ballabh Joshi and Jeet Singh. That application is Ex. Ka-2. On the basis of that report of Nanda Ballabh Joshi and Jeet Singh, he has prepared the chick FIR Ex. Ka-3 and started the investigation. During the course of the investigation he has recorded the statement of the witnesses and prepared the site plan Ex. Ka-4. After completing the investigation he has filed the chargesheet Ex. Ka-5 against the appellants/accused. He has further stated that Nanda Ballabh and Jeet Singh have not admitted the report written and signed by them. 7 16. After that, the statement the appellants/accused and the co-accused (acquitted by the trial court) was recorded under Section 313 of Cr.P.C. The oral and documentary evidence were put to each of the appellants/accused and the co-accused (acquitted by the trial court) in question form, who denied the allegations made against them. However, in defence they did not produce any documentary or oral evidence. 17. Learned Counsel for the appellant/accused has submitted that prosecution has not proved the case against the appellant/accused Kishna Nand beyond reasonable doubt. I find substance in the argument of the learned Counsel for the appellant/accused due to the following reasons: (i) That the said incident was said to have happened on 14.3.1991 at 4 p.m. at village Kazina but PW1 Smt. Madhavi Devi, wife of deceased Laxmi Datt, PW2 Smt. Kamla Devi and PW3 Km. Hema, daughters of deceased Laxmi Datt, who claim themselves to be the eyewitnesses, have not lodged any FIR which creates a reasonable doubt in the prosecution story. (ii) That the FIR on the basis of which the investigation was started was lodged by Nand Ballabh Joshi and Jeet Singh Latwal, that is on the record as Ex. Ka-2 and on the basis of which the chick FIR Ex. Ka-3 was prepared and investigation was started were not examined by the prosecution as a witness in the trial court and even PW6 Bhawani Ram, the I.O. has stated that these two witnesses have denied and stated 8 that they have not lodged any FIR and the report was not signed and written by them. Hence, the basis on which the investigation was started was not proved but it was denied to the I.O. by the persons who have lodged the FIR, which also creates a reasonable doubt in the prosecution story. (iii) That the so-called eyewitnesses PW1 Smt. Madhavi Devi, wife of the deceased Laxmi Datt, has stated that PW5 Bhagwan Singh Bist, Patwari, who has visited the place of occurrence on 15.3.1991, that her husband had died due to illness and due to fall from the horse which also shows that statement of this witness in the court is concocted one and not reliable and believable statement. (iv) That PW1 Smt. Madhavi Devi has also stated in her cross-examination that her son PW4 Devki Nandan Joshi reached in the house on 5th day of death of her husband from Delhi and remained there till the completion of the ceremonies and after two to four days of finishing the ceremonies he has gone to Delhi and she has not lodged the report anywhere. Thus, the statement of PW1 Madhavi Devi does not inspire the confidence. In the same way, statements of PW2 Smt. Kamla Devi and PW3 Km. Hema also create doubt in the prosecution story. (v) That as per PW1 Madhavi Devi’s statement recorded in the court on 15.9.1992, she has stated that she and PW2 Smt. Kamla Devi received the injuries on their back but they have not been medically examined and no medical injury report was prepared and the presence of 9 PW1 Madhavi Devi and PW2 Kamla Devi are doubtful on the place of occurrence. (vi) That as per the prosecution case the deceased received the injuries at 4 p.m. on 14.3.1991 and had died at 8 p.m. on the same day and the distance between the village Kazina to Mulakot is 5 kms, but she has not taken her husband for medical examination or treatment and no post mortem was conducted which creates a reasonable doubt in the prosecution story. (vii) That PW5 Bhagwan Singh Bist, Patwari, Mulakot has also stated that on 15.3.1991 when he had reached village Kazina at about 10.30 to 11 a.m., then Smt. Madhavi Devi (PW1), the wife of Laxmi Datt has told him that Laxmi Datt was an old man and was ill and died due to the fall from horse. Thus, the statement of this witness Bhagwan Singh Bist (PW5) also support the facts that Laxmi Datt was an old man and was ill and died to the fall from horse, which also creates a reasonable doubt in the prosecution story. 18. Thus, from the abovesaid facts, it reveals that the incident has not happened in such a manner as stated by the prosecution and the prosecution has failed to prove the case against the appellant/accused Kishna Nand beyond reasonable doubt. Therefore, the impugned judgment and order dated 31.5.1993 is not correct and justified. 19. For the reasons recorded above, the view taken by the trial court is not correct and justified and is liable to be set aside. Hence, the appeal is allowed. The judgment and order dated 31.5.1993 passed by the Sessions Judge, 10 Pithoragarh in Sessions Trial No. 18 of 1992, State v. Kishna Nand & Ors. convicting the appellant/accused Kishna Nand under Section 325 read with Section 34 IPC is set aside. Sentence of three years’ R.I. along with fine of Rs. 500/- awarded to the appellant no. 1 Kishna Nand for the offence punishable under Section 325 read with Section 34 IPC is set aside. Appellant no. 1 Kishna Nand is hereby acquitted of the charges levelled against him. Appellant no. 2 Narain Datt has died on 31.3.2008. Hence, the appeal filed by appellant no. 2 Narain Datt has been abated. 20. Appellant no. 1 Kishna Nand is on bail. He need not surrender. His bail bonds are cancelled. Sureties are discharged. 21. Let the lower court record be sent back. (Dharam Veer, J.) 15.7.2009 PRABODH