IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Government Appeal No. 186/2001 (Old No. 177/1998) State .. Appellant. Versus Luxman Giri and two others …. Respondents. Mr. S.S. Adhikari, learned A.G.A. for the State. Mr.Vivek Shukla, Advocate for respondents. Coram: Hon’ble B.C. Kandpal, J. Hon’ble Nirmal Yadav, J. [Hon’ble B.C. Kandpal, J. (oral)] This Government Appeal has been preferred against the judgment and order dated 6-7- 1998, passed by District & Sessions Judge, Haridwar, in S.T. No. 265/1992, State Vs. Luxman Giri and two others, whereby the accused/respondents were acquitted of the charges U/Ss 307/34, 302/34 I.P.C. and Section 27 Arms Act. 2- The prosecution story, in short, is that on 22-5-1992, at 5.45 P.M. S.I. D.N. Shukla lodged oral F.I.R. at P.S. Kotwali, Haridwar with the allegations that on 22.5.1992 he had gone in the pairwee of case crime No. 626/1991, U/Ss 452, 307, 323 I.P.C. State vs. Bhusan and others, P.S. Kotwali, Haridwar. At 4.25 P.M. the Addl. District & Sessions Judge after recording the evidence of witness Mahesh Giri and Luxman Giri, fixed the case for further evidence on 19-6-1992. Thereafter it was detected that Luxman Giri was in possession of his D.B.B.L. licensee gun, Kamal Giri was also in 2 possession of his licensee pistol 405 bore and Mahesh Giri was empty hands. The further allegations is that Bhusan Talwar and Sunil, who were accused in commission of murder of Vinay Giri, son of Luxman Giri and being tried in the court, came on the road outside the court premises at about 4.30 P.M. and Bhusan Talwar twisted his moustaches and laughed at Luxman Giri. At this Mahesh Giri, told Luxman Giri and Kamal Giri what they are looking, the accused are laughing after committing the murder, so kill them. At this Luxman Giri with his DBBL Gun and Kamal Giri with his 405 bore rifle, opened fires at Bhusan and Sunil with the intention to kill them, which hit Bhusan and Sripal, who was standing nearby. Both the accused persons opened about 7-8 fires. Hearing the sound of fires, S.I. D.N. Shukla and constable Satya Kumar and Constable Mahendra Gupta, wanted to catch hold of the accused persons after taking out the revolver, but accused Luxman Giri, Kamal Giri and Mahesh Giri fled towards Jwalapur in Ambassador Car No. D.B.G. 8393. Constable Mahendra Gupta was left at the spot in order to maintain peace there and S.I. D.N. Shukla and constable Satya Kumar chased the accused persons riding in motorcycle. When they reached at Chandi Ghaat bridge, S.I. M.R. Dugtal, constable Jitendra Pal, constable Indra Pal and constable driver Ivne Siddiqui were there doing some checking and with their help the Ambassador Car of accused Luxman Giri, Kamal Giri, and Mahesh Giri was got stopped and all the three accused tried to escape. Any how the accused persons were caught at 4.50 P.M. towards Ganga river. The police recovered DBBL Gun with two empty cartridges and 3 one belt of live cartridges form accused Luxman Giri and a 405 bore rifle with two empty cartridges and six live cartridges from accused Kamal Giri. The police after taking into possession the above arms and ammunition, prepared recovery memo, Ext. Ka.1. The recovered pistol, gun and cartridges were sealed in separate clothes at the spot. The injured Sripal succumbed to injuries, whereas injured Bhusan was admitted in Govt. Hospital Harmilap. On the basis of oral F.I.R. chick F.I.R. Ext. Ka.2 was prepared at the police station. The entry of registration of case against accused persons was made at G.D. report No. 43 and all the three accused persons with arms and ammunition were handed over by S.I. D.N. Shukla at the police station. The inquest report on the dead body of deceased Sripal, Ext. Ka.5 was prepared by S.I. R.P. Sharma and on the pointing out of S.I. D.N. Shukla the investigating officer prepared the site place of the place of occurrence, Ext. Ka.3. The empty cartridges from the place of occurrence were taken into possession vide recovery memo, Ext. Ka.4. The I.O. also prepared the site plan, Ext. Ka.9, of the place from where the accused were arrested. Pant, T-shirt and underwear of the deceased were sent for chemical examination, the report of which is Ext. Ka.11 and Ka.12. S.I. R.P. Sharma sealed the dead body of deceased Sripal and sent it for post mortem. 3- The autopsy on the dead body of deceased Sripal was conducted by Dr. K.N. Shukla, on 23.5.1992 at 9.45 A.M. in H.M.G. Hospital Haridwar and he found following ante-mortem injuries on the person of the deceased- 4 1- Fire arm wound of entry on left side of chest, 6 cm away from left nipple at 10 O’clock position. Size of wound was .5cm x.5cm x cavity deep. 2- Fire arm wound of entry .5m x .5cm x cavity deep. Direction forward to backward and slightly rightward. In the opinion of the doctor the cause of death was due to shock and haemorrhage as a result of injuries. The Medical Officer prepared post mortem report, Ext. Ka.6. 4- The injured Bhusan Talwar was medical examined by Dr. O.P. Sharma, on 22.5.1992 at 5.50 P.M. in H.M.G. Hospital Haridwar and he has found the following injuries on his person- 1- Firearm contused wound 8cm x 2.5cm x muscle deep, on the back of left arm, 8cm below knee joint. Blood was coming out from the wound. 2- Firearm 2.5cm x 1.5cm x muscle deep, 2cm below injury no.1, blackening around the injury. 3- Multiple firearm wound in the size of 8cm x 5cm varying size from 1.5cm x 0.5cm to .5cm x .2cm around injury no.1. 4- Abrasions 7.00 cm x 1.00cm on front and upper 1/3rd of left leg toe. In the opinion of the doctor injuries 1,2,3 were kept under observation. All the injuries were fresh and caused by firearm. The Medical Officer prepared injury report, Ext. Ka.7. 5- The investigating officer after completing the investigation submitted charge sheet, Ext. Ka.10 against the accused persons. 5 6- The C.J.M. Haridwar, vide his order dated 25.8.1992, committed the case to the court of sessions for trial. 7- The learned Sessions framed charges U/Ss 307, 302 I.P.C. against accused Luxman Giri and Kamal Giri and also framed charges U/Ss 307/34 and 302/34 I.P.C. against accused Mahesh Giri. The Sessions Judge further framed charge U/S 27 Arms Act against accused Luxman Giri and Kamal Giri. Luxman Giri was further charged U/S 302 read with Section 301 I.P.C. The accused denied the charges and claimed their trial. 8- The prosecution in support of its case, examined Bhusan Talwar, P.W.1, Sunil Kumar, P.W.2, Constable Mahendra Gupta, P.W.3, S.I. D.N. Shukla, P.W.4, Dr. K.N. Shukla, P.W.5, S.I. M.R. Dugtal, P.W.6, Dr. O.P. Sharma, P.W.7, and S.I. Tilak Ram P.W.8. 9- The accused in their statement U/S 313 Cr.P.C. denied the prosecution case and alleged that they have been falsely implicated in the case. Accused Luxman Giri also produced him as D.W.1. 10- The learned Sessions Judge, after hearing learned counsel for the parties and considering the entire evidence on record, acquitted the accused/respondents from the charges levelled against them. 6 11- Against the acquittal of the accused/respondents, the State has come up in appeal. 12- We have heard the learned A.G.A. and learned counsel for the accused/respondents and perused the record. 13- Perusal of record reveals that the prosecution has examined Bhusan Talwar, P.W.1, Sunil Kumar, P.W.2, Constable Mahendra Gupta, P.W.3 and S.I. D.N. Shukla, P.W.4 as eyewitnesses of the occurrence. 14- P.W.1, Bhusan Talwar is injured witness. P.W.1, Bhusan Talwar and his son P.W.2, Sunil Kumar have deposed that on 22.5.1992, at 4.25 P.M. when they came out of the court after the case was adjourned, some unknown persons fired at them in which Bhusan Talwar sustained injuries. These witnesses further deposed that the fire was opened by some unknown persons from inside the Maruti Car, which was standing on the road. These witnesses have specifically deposed that accused Luxman Giri, Mahesh Giri and Kamal Giri did open any fire on them. The accused persons were not carrying any firearm. Both these witnesses have been declared hostile. 15- Now there remains the eyewitness account of P.W.3, constable Mahendra Gupta and P.W.4, S.I.D.N. Shukla. They have deposed that at the time of incident they were in the court in connection with the pairwee of the case of State vs. Bhusan Talwar. Accused Luxman Giri, Mahesh Giri 7 and Kamal Giri were also present there. Accused Bhusan Talwar and Sunil Kumar were present in the court. Some quarrel took place in between the parties, at this Luxman Giri with his 12 bore licensee gun and Kamal Giri with his 315 Bore Rifle opened fires. They further deposed that the fire of accused Luxman Giri hit Sripal, son of a constable, who was moving on the road, and its cartridges also hit Bhusan Talwar. In the cross examination the witnesses have deposed that they had come to Sessions Court at 4- 4.30 P.M. for doing pairwee. 16- The presence of these police witnesses at the place of incident seems to be highly doubtful firstly on the ground that the courts start functioning at 10.30 A.M. and rise at 4.00 P.M., therefore, the arrival of these witnesses in court after 4.00P.M. for doing pairwee in some case is not believable. It has come on record that copy of relevant G.D. of departure of these police personnel from the police station to the court has not been brought on record. P.W.3, Mahendra Gupta also stated that he had come in the court of Magistrate for doing pairwee of the cases. The distance between the Magistrate court and Sessions Court is about one kilometer and it was not possible for him to have seen the incident of firing from such a distance. In his statement U/S 161 Cr.P.C. this witness has not given such a narration that on the day of occurrence he had come to do pairwee either in Magistrate court or Sessions court. The second aspect of the deposition of this witness is that he has deposed that after hearing gun shot he had come out from the court room. Therefore, this witness would not have seen the incident of quarrel 8 and firing, as some time would have taken when he came out from the court after hearing the sound of fire. The depositions of the police witnesses are full of doubts and have rightly been discarded by the learned Sessions Judge. 17- The relevant aspect of the case is the recovery of arms and ammunition from the possession of the accused persons. The case of the prosecution is that DBBL Gun, two empty cartridges and a belt of 13 live cartridges were recovered from the possession of accused Luxman Giri whereas from the possession of accused Kamal Giri Rifle, two empty cartridges and six live cartridges were recovered and the arms and ammunition recovered from the possession of the accused persons were sealed at the spot. The memo, Ext. Ka.1 relates to above recovery. After opening the sealed bundle in the trial court, one belt of 13 live cartridges, another belt containing 6 live cartridges, 9 empty cartridges, 3 empty cartridges of rifle, 2 live cartridges of rifle, one rifle and one gun were found in it. P.W.4, D.N. Shukla, has deposed that only 6 live and 2 empty cartridges of Rifle were recovered, out of which one empty and three live cartridges were not recovered from Kamal Giri at the spot. He further deposed that one empty cartridge of rifle was recovered from the place of occurrence and out of 9 empty cartridges of the gun, 2 were recovered from Luxman Giri at the time of his arrest and 3 were recovered from the place of occurrence at the time of inspection of that place, but he has no knowledge about the remaining 4 empty cartridges. It is also not explained by the investigating officer that how the ammunition recovered from the place 9 of occurrence could be sealed in one bundle of the arms and ammunition recovered from the place of arrest of the accused, which is at a sufficient distance from the place of occurrence. Perusal of recovery Memo, Ext. Ka.1, further reveals that no independent witness has been procured by the police, whereas there were shops, Ashram and residential buildings near the place of the recovery of the arms and ammunition from the possession of the accused persons. None-procuring the independent public witness pertaining to In the above circumstances of the case it is quite clear that the police did not seal the arms and ammunition at the spot, as alleged by it, but it was sealed at the police station, as is the case of defence. 18- The defence version is that they have been falsely implicated by the police. Ext. Kha.1 is the application moved by accused Luxman Giri before the C.J.M. Haridwar, narrating the facts that they were witnesses of murder of Vinay Giri against accused Bhusan Talwar, Sunil Talwar, Vibhu Talwar, and Bobby Talwar. On 11.6.1991 these accused persons threatened to kill them. On 22.5.1992 date was fixed in the court of Addl. District Judge, Haridwar. The accused were accompanied by large number of scoundrel in order to terrorize them so that they may not give evidence against them. The witnesses (accused/respondents) had also brought their arms with them for their security. When the date was adjourned in the case and these persons came out of court, fire was shot at Luxman Giri. The rascals did continuous firing and thereafter fled away in Maruti car. When Luxman Giri and others with their fire arms went to 10 give the information of the firing by the rascals, then the police caught Luxman Giri, his son and brother and did not lodge their report and concocted a false case against them. The defence version also finds support from the facts mentioned in wireless message Ext. Ka.13, in which at 4.45P.M. Inspector Kotwali informed the Police Control Room Haridwar that black coloured Ambassador has been caught and the occupants of the said car had informed that the persons sitting in white coloured Maruti Van DDD-2228 had fired on them. Again at 4.50 P.M. Addl. S.P. also informed the City Control Room that the three occupier of black coloured Car are available at Kotwali. S.I. D.N. Shukla has stated that these three accused had come at Kotwali at 5.45 P.M. whereas as per Ext. Ka.13, these persons were already at Kotwali one hour earlier to it. 19- The presence of S.I. D.N. Shukla at the place of occurrence also seems to be doubtful from the site plan, Ext. K.3, which is said to be prepared at the pointing out of this witness. In the deposition of this witness it has been stated that at the time of incident when they came out of the court room, accused persons were standing on the road, in front of main gate of the court, Luxman Giri and others were standing on the other side and he himself was standing in front of the door. According to the statement of this witness, Bhusan Talwar and Sunil Kumar were standing towards western side of the road and Luxman Giri and others were in the east. In the cross examination this witness changed the direction of the above persons and deposed that Bhusan Talwar and Sunil Kumar were in eastern 11 side whereas Luxman Giri and others were in the western side. In the site-plan, Ext. Ka.3, Luxman Giri etc, Bhusan Talwar etc and deceased Sripal, all have been shown standing on the western track of the road. The other police witnesses examined by the prosecution have also contradicted with each other on this point and the only conclusion which can be drawn is that a false case has been concocted against the accused persons to justify the incident of firing which took place outside the court premises. 20- The learned counsel for the accused/respondents has submitted that the trial court has recorded good reasons for the acquittal of the accused/respondents and there is no reliable and trustworthy evidence on record to come to a definite view that the accused/respondents committed the offence, therefore, the order of acquittal is liable to be maintained. 21- In the case of Peerappa and others vs. State of Karnataka, reported in (2005) 12 Supreme Court Cases 461, the Hon’ble Apex Court in paragraph-13 has held as under- 13. On an anxious consideration of the contentions in the light of the evidence on record and the findings of the trial court, we are of the view that the High Court ought not to have interfered with the order of acquittal. In this regard we may recall the observations made by R.C. Lahoti, J.( as High Lordship then was), speaking for a three-Judge Bench in Kashiram v. State of M.P. It was observed thus- 12 ‘though the High Court while hearing an appeal against an acquittal has powers as wide and comprehensive as in an appeal against a conviction and while exercising its appellate jurisdiction the High Court can reappraise the evidence, arrive at findings at variance with those recorded by the trial court in its order of acquittal and arrive at its own findings, yet, the salutary principle which would guide the High Court is – if two views are reasonably possible, one supporting the acquittal and the other recording a conviction, the High Court would not interfere merely because it feels that sitting as a trial court its view would have been one of recording a conviction. It follows as a necessary corollary that it is obligatory on the High Court while reversing an order of acquittal to consider and discuss each of the reasons given by the trial court to acquit the accused and then to dislodge those reasons. Failure to discharge this obligation constitutes a serious infirmity in the judgment of the High Court.” 22- It is thus clear that while entertaining an appeal from a judgment of acquittal, the High Court out not to have interfered with the order of acquittal. If two view are reasonably possible, one supporting the acquittal and the other recording a conviction, the High Court would not interfere merely because it feels that sitting as a trial court its view would have been one of recording a conviction. It is obligatory on the High Court while reversing an order of acquittal to consider and discuss each of the reasons given by the trial court to acquit the accused and then dislodge those reasons. Failure to discharge this obligation would 13 constitute a serious infirmity in the judgment of reversal. 23- As discussed in the earlier part of the judgment, the injured eyewitness Bhusan Talwar, P.W.1 and Sunil Kumar, P.W.2, who is said to be an eyewitness of the occurrence, have denied the participation of the accused persons in the incident of firing at them. Rather they have supported the defence version that some unknown persons sitting in the Maruti Car standing on the road did the firing at them and due to that firing Sripal had succumbed to the injuries and P.W.1, Bhusan Talwar also sustained fire-arm injuries on his person. No convincing reason has been shown by the prosecution why the injured eyewitness and his son Sunil Kumar would have left the accused/respondents had they opened the fire, particular in the event when there was enmity between them. Further the recovery of the arms and ammunitions from the accused persons also seems to be doubtful and the statements of other police witnesses are full of contradictions. 24- The medical evidence also did not support the ocular version in the case. According to prosecution case accused Luxman Giri and Kamal Giri opened fire at Bhusan Talwar from a distance of 20-25 feet whereas deceased Sripal was at a distance of about 50 paces. Dr. O.P. Sharma, P.W.7 examined the injuries of Bhusan Talwar and according to the doctor injury Nos. 1 and 2 were having blackening and these injuries could have been caused at a distance of 5-6 feet. 14 25- Therefore, the trial court was justified in recording the acquittal of the accused/respondents. We do not find any reason for interference in the judgment of acquittal passed by the trial court. We are in full agreement with the reasons and findings recorded by the trial court in the impugned judgment. 26- In view of aforesaid reasons the appeal lack merit and is liable to be dismissed. 27- Accordingly, the appeal is dismissed. The impugned judgment and order of acquittal of accused/respondents is hereby confirmed. (Nirmal Yadav, J.) (B.C. Kandpal, J.) 09-03-2010 ISB