IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Government Appeal No. 1465 of 2001 (Old No. 1722 of 1994) State ……Appellant. Versus 1. Jal Singh S/o Kashiram. 2. Jogendra Singh S/o Rehtu Singh 3. Sadan Singh S/o Kashiram 4. Raja @ Rajpal S/o Raghuvir Singh R/o Daabki Police Station Laksar District Haridwar. .……….Respondents. Sri Harish Pujari, A.G.A. for the appellant. Shri Manish Arora, Advocate for the respondents. Coram:Hon’ble Prafulla C. Pant, J. Hon’ble B.S. Verma, J. Oral:-Hon’ble Prafulla C. Pant, J. This appeal, preferred under Section 378 of Code of Criminal Procedure, 1973 (herein after referred as Cr.P.C.), is directed against the judgment and order dated 14.06.1994, passed by learned Additional Sessions Judge, Haridwar, in Sessions Trial No. 41 of 1992, whereby accused/respondents- Jal Singh, Jogendra Singh, Sadan Singh, Raja alias Rajpal, are acquitted of charge of offences 2 punishable under Section 302/201 of Indian Penal Code, 1860 (herein after referred as I.P.C.) 2. Heard learned counsel for the parties and perused the lower court record. 3. Prosecution story in brief is that on 31.03.1989, at about 9:00 p.m., Vikram Singh (deceased) brother of complainant Ram Kumar (P.W. 4) had gone to press mill of Rami in village Daabki within the limits of police station Laksar. There he took the liquor with one Rami. On instigation of Rami, in an intoxicated condition, Vikram set hut of one Rehtu on fire. On this, villagers came there and extinguished the fire. There Vikram (deceased) had altercation with the accused/respondents. On this, accused/respondents Jal Singh, armed with tabal (heavy sharp edged weapon), Jogendra armed with Ballam (a short spear), Sadan armed with Palta (a handle used in cane crusher), chased Vikram, killed him and threw him in a well. The incident was witnessed by P.W. 1 Kesho, P.W. 2 Som Pal, P.W. 3 Ajab Singh and P.W. 4 Ram Kumar. The First Information Report (Ext. A-1) was lodged by complainant Ram Kumar ( P.W. 4) with police station Laksar soon after midnight at about 00-10 A.M. on 22.03.1989, against all the four accused/respondents relating to offences punishable under Sections 302/201 I.P.C. which was registered as crime No. 38 of 1989. Investigation was taken up by P.W. 6 Sub-Inspector B.S. Negi. P.W. 7 Sub- 3 Inspector Rajendra Prasad Sharma, on 22.03.1989, under directions of Investigating Officer went to the spot and took the dead body of Vikram in his possession and prepared inquest report (Ext. A-3), police form No. 13 (Ext. A-4), sketch of the dead body (Ext. A-5) and letter to Chief Medical Officer (Ext. A-6). Dead body was sent for post mortem examination in a sealed condition through Constable Jagdish Gupta (P.W. 5) to District Hospital Haridwar. P.W. 8 Dr. M.P. Garg, conducted post mortem examination on 22.03.1989, at about 3:30 p.m. and prepared autopsy report (Ext. A-12). Meanwhile Investigating Officer interrogated the witnesses and prepared site plan (Ext. A-7). After completion of investigation, charge sheet (Ext. A-10) was submitted by Investigating Officer against all the four accused/respondents Jal Singh, Jogendra Singh, Sadan Singh and Raja alias Raj Pal for their trial in respect of offences punishable under Sections 302 and 201 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., committed the case to the Court of Sessions, for trial. Learned Additional Sessions Judge, Haridwar, to whom the case was transferred, after hearing the parties, framed charge of offences punishable under Sections 302 read with Section 34 I.P.C. and 201 read with Section 34 I.P.C. against the accused/respondents Jal Singh, Jogendra Singh, Sadan Singh and Raja 4 alias Rajpal who pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1 Kesho (alleged eye-witness), P.W. 2 Sompal (alleged eye-witness), P.W. 3 Ajab Singh (alleged eye- witness), P.W. 4 Ram Kumar (complainant and alleged eye-witness), P.W. 5 Constable Jagdish Gupta (who took the dead body for post mortem examination), P.W. 6 Sub-Inspector Bagh Singh (who investigated the crime), P.W. 7 Sub-Inspector Rajendra Prasad Sharma (who prepared the inquest report and other necessary papers) and P.W. 8 Dr. M.P. Garg (who conducted the post mortem examination). The oral and documentary evidence was put to the accused under Section 313 Cr.P.C. in reply to which they alleged the same to be false. However, no evidence in defence, was adduced. The trial court after hearing the parties found that the prosecution has failed to prove the charge of offences punishable under Section 302/34 I.P.C. and one punishable under Section 201/34 I.P.C. against the accused and acquitted them. Aggrieved by said judgment and order dated 14.06.1994, passed by the trial court in Sessions Trial No. 41 of 1992, this appeal was filed by the State before Allahabad High Court on 17.09.1994, where leave was granted on 18.08.1999 and the appeal was admitted. The appeal is received by this Court under Section 35 of U.P. Reorganisation Act, 2000 (Central Act No. 29 of 2000), for its disposal. 5 5. Before further discussion, we think it just and proper to mention the ante mortem injuries recorded by P.W. 8 Dr. M.P. Garg, who prepared autopsy report (Ext. A-12). The ante mortem injuries, recorded in the autopsy report are being reproduced as under:- 1. Lacerated wound 7cm X 1cm X bone deep on the left side head, 6cm above the left ear. 2. Lacerated wound 4cm X 1cm X bone deep on left side head adjacent to injury No. 1. 3. Lacerated wound 2.0cm X 1cm X muscle deep on back of left ear. 4. Abrasion 10cm X 2cm, left side of face and neck. 5. Lacerated wound 2.0cm X 1cm X bone deep on medial end of right eyebrow. 6. Abrasion 3cm X 2cm on right side forehead. 7. Abrasion 2cm X 1cm on bridge of nose. 8. Lacerated wound 2cm X 1cm X muscle deep on the left cheek, 1cm below left eye. 9. Lacerated wound 5cm X 2cm X mouth cavity on the upper lip. Front five teeth missing. 6 10. Lacerated wound 3cm X 1cm X mouth cavity deep on lower lip. Two teeth missing. 11. Lacerated wound 1cm X 0.5cm X muscle deep on back of left forearm. 12. Abraded contusion 8cm X 6cm in middle and outer side of left thigh. 13. Abrasion 5cm X 3cm on left knee. 14. Abrasion 2cm X 1cm on front of right knee joint. 15. Multiple abrasion in an area of 22cm X 4cm on outer of lower end of left leg. 16. Lacerated wound 1cm X 1cm X bone deep on the right leg. 17. Lacerated wound 2cm X 1cm X bone deep, 1cm below injury No. 16. 18. Lacerated wound 1cm X 1cm X bone deep, 2cm below injury No. 17. 19. Abraded contusion 18cm X 12cm on back of the left shoulder. 20. Contusion 6cm X 3cm on upper part of right buttock. 21. Lacerated wound 1cm X 0.5cm X muscle deep on right index finger. 7 The Medical Officer opined that Vikram (deceased) has died due to shock and haemorrhage as a result of ante mortem injuries. From the evidence given by P.W. 8 Dr. M.P. Garg read with the autopsy report (Ext. A-12), it is proved on record that Vikram has died homicidal death. This Court has to see whether the prosecution has proved that the accused/respondents with common intention committed murder of the deceased and threw his body in a well or not. It is further to be seen whether the trial court has erred in law in appreciating the evidence and acquitting the accused. 6. There are as many as four witnesses namely P.W. 1 Kesho, P.W. 2 Som Pal, P.W. 3 Ajab Singh and P.W. 4 Ram Kumar (complainant), who are said to have witnessed the incident, and narrated the prosecution story stating that on 21.03.1989, at about 10:00 p.m., after altercation with the deceased, accused/respondents Jal Singh, Jogendra Singh, Sadan Singh and Raja alias Rajpal, chased him (deceased) and killed him with Tabal (heavy sharp edged weapon), Ballam (a short spear), Khalwa (a thick wooden rod used in buffalo carts) and Palta (handle used in the cane crusher). However, the trial court after assessing their testimony has come to the conclusion that the testimony is not reliable and trust worthy. While appreciating the evidence on record, the trial court has observed that all the four eye- witnesses are close relatives and three of them have attempted to conceal their relationship, which was 8 admitted by P.W. 1 Kesho. The trial court has further found that had these witnesses seen the occurrence they would have taken out the deceased from well and took him immediately to the hospital. The trial court has further taken note of the fact that P.W. 1 Kesho during the trial had given an affidavit (paper No. 15 B) before trial began that he had not seen the occurrence. The trial court also took note of the fact that in the First Information Report there is no mention of altercation between accused and the deceased nor is there any mention of the weapons used by the accused in the crime. It further found testimony of the above four witnesses doubtful on the ground that there were material contradictions in their statements. 7. We have re-examined the trial court’s evidence and we agree with the findings of the trial court. As per the witnesses of fact after hut of one Rehtu was set on fire, many villagers got collected there and thereafter Vikram (deceased) ran and was chased by the accused/respondents Jal Singh, Jogendra, Sadan Singh and Raja alias Rajpal and killed by them, who threw his body in a well. It is not clear from the record how the weapons Tabal (sharp edged weapon), Ballam (rod with a pointed end), Khalwa (a thick wooden rod used in buffalo cart) and Palta (handle used in cane crusher), came in the hands of accused/respondents if they had come simply to see that Rehtu’s hut has been set on fire. As to setting fire of Rehtu’s hut also there are material 9 contradictions in the statements of the witnesses. It is also strange that though P.W. 1 Kesho has admitted close relationship with other three eye- witnesses namely P.W. 2 Som Pal, P.W. 3 Ajab Singh and P.W. 4 Ram Kumar and rest of the three for the best reasons known to them have tried to conceal it. We agree with the trial court that had the above mentioned four witnesses seen the incident, they along with villagers could have caught hold of some of the accused. Even otherwise if it is accepted that the witnesses could not dare to save the deceased (Vikram), they could have taken out the injured from the well, after the accused left the seen of occurrence. They didn’t even bother to see whether Vikram has died or not, nor did they make any effort to take him to hospital. This certainly creates doubt as to the presence of these witnesses at the place of incident. From the testimony of the above witnesses, this Court also finds that it is also not proved on the record that there was sufficient light to see the occurrence by the above witnesses. 8. Having reassessed the evidence on record and after considering the submissions of learned counsel for the parties and after going through the impugned judgment and order, passed by the trial court, we find that the trial court has committed no error of law in appreciating the evidence and coming to the conclusion that the prosecution has failed to prove the charge of offences punishable under Section 302 read with Section 34 and one punishable under 10 Section 201 read with Section 34 I.P.C. against the accused, beyond reasonable doubt. That being so even if two views are possible, in the facts and circumstances of the case, we do not think it just and proper to interfere with the trial court’s finding for the same is based on sound reasons mentioned by the trial court holding that the prosecution story is not proved beyond reasonable doubt. 9. For the reasons, as discussed above, this appeal is liable to the dismissed. The same is dismissed. The order dated 14.06.1994, passed by Additional Sessions Judge, Haridwar, in Sessions Trial No. 41 of 1992, acquitting the accused/respondents Jal Singh, Jogender Singh, Sadan Singh and Raja alias Rajpal from the charge of offences punishable under Sections 302/201 I.P.C. is affirmed. (B.S. Verma, J.) (Prafulla C. Pant, J.) Dt:01.06.2009 Sweta 11 12 13 14 15 16