IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 907 of 2001 (Old No. 830 of 2000) 1. Harjinder Singh 2. Surjit Singh S/o Gurdeep R/o Sunder Nagar P.S. Nanakmatta District : Udham Singh Nagar. ….. Appellants Versus State of Uttar Pradesh (Now State of Uttarakhand) ………. Respondent Present : Sri J.S. Virk, Advocate present for the accused appellants. Sri S.S. Adhikari, A.G.A. with Sri B.S. Parihar, Brief holder present for the State/respondent. Hon’ble Prafulla C. Pant, J. Hon’ble Nirmal Yadav, J. [Oral : Hon’ble Praffulla C. Pant,J. ] This appeal, preferred under section 374 of the Code of Criminal Procedure, 1973 (for short Cr.P.C.) is directed against judgment and order dated 11.04.2000 passed by Additional Sessions Judge, Udham Singh Nagar, in Sessions Trial No.215 of 1999, whereby the said court has convicted accused/appellants Harjinder Singh and Surjit Singh on the charge of offence punishable under section 302 read with section 34 Indian Penal Code, 1860 (for short I.P.C.), and sentenced each of them imprisonment for life. 2 2. Heard learned counsel for the parties and perused the lower court record. 3. Prosecution story, in brief, is that on 24.04.1999, complainant Karnail Singh (PW-3) lodged first information report (exhibit A-1) at police station Nanakmatta, district Udham Singh Nagar, at about 09.35 a.m., on the basis of which crime no.97 of 1999 was registered relating to the offence punishable under section 302 IPC, against accused/appellants Harjinder Singh and Surjit Singh. It is stated in the first information report that accused Harjinder Singh had taken a loan of ` 5,000/- from Jeet Singh (deceased), which he did not return. On 24.04.1999 Jeet Singh, along with his son Sukhbir Singh, went to village Sundernagar to demand the repayment of loan. Harjinder Singh was not in his house. Jeet Singh and his son Sukhbir Singh (PW-1) waited for Harjinder Singh, and stayed in his house where accused Harjinder Singh’s mother told that Harjinder Singh was not at home. At about 2-2.30 a.m. (in the intervening night of 24th/25th April, 1999) accused Harjinder Singh, along with co-accused Surjit Singh, came in the village. There was a lantern lighting in the house. Harijinder Singh abused Jeet Singh. Thereafter, Surjit singh caught hold of Jeet Singh, and Harjinder Singh picked up a SARIA (iron rod) and gave blow on the head and jaw of the deceased. On 3 raising of alarm by Sukhbir Singh (PW-1), Nirmal Singh (PW-2) came there and he also witnessed the incident. In the morning, Sukhbir Singh informed about the incident to Karnail Singh (PW-3) who got scribed first information report (exhibit A-1) through Nirmal Singh (PW-2) and gave at police station. The crime was investigated by PW-5 Sub Inspector D.C. Dhaundiyal who went at the spot, and took the dead body of the deceased in his possession, prepared inquest report (exhibit A-4). He also got prepared sketch of dead body (exhibit A-5), police form No.13 (exhibit A-6), sample seal (exhibit A-7) and other necessary papers. He got sent the dead body in a sealed condition for postmortem examination. PW-4 Dr. H.C.K. Joshi conducted the postmortem examination on the dead body of Jeet Singh on 26.04.1999, who recorded as many as seven ante mortem injuries, six of them were contusion, and seventh one was depressed mark in front of the chest. The Medical Officer in the autopsy report (exhibit A- 3) opined that deceased had died due to ante mortem injuries. The Investigating Officer also took bloodstained soil and simple soil from the spot and prepared memorandum (exhibit A-9). The same was sent for Chemical analysis. Site plan was prepared and witnesses were interrogated by the Investigating Officer. After completion of investigation, chargesheet was filed against accused/appellants namely, Harjinder Singh and Sukhbir Singh. From the 4 Forensic Science Laboratory, report was received and it was mentioned that bloodstained soil contained human blood. 4. On receipt of chargesheet, Chief Judicial Magistrate, after giving necessary copies to the accused/appellants, as required under section 207 of Cr.P.C., appears to have committed the case to the court of Sessions for trial. Learned trial court on 18.08.1999 after hearing the parties, framed the charge of offences punishable under section 302 IPC read with 34 IPC against both the accused Harjinder Singh and Surjit Singh who pleaded not guilty and claimed to be tried. On this, prosecution got examined PW-1 Sukhbir Singh (son of the deceased), PW-2 Nirmal Singh (scribe of the report), PW-3 Karnail Singh (complainant), PW-4 Dr. H.C.K. Joshi who conducted postmortem examination, PW-5 Sub Inspector D.C.Dhaundiyal who investigated the crime, PW-6 Constable Amar Singh who made entry in the General Diary regarding lodging the first information report and prepared the check report (exhibit A-11), PW-7 Pritam Singh in whose presence inquest report was prepared and PW-8 Yashveer Singh who took the dead body in sealed condition for postmortem examination. 5 5. The oral and documentary evidence was put to the accused under section 313 of Cr.P.C. in reply to which they alleged same to be false. Both of them stated that except the statement of Medical Officer, the other evidence is false. No evidence, in defence was adduced. The trial court after hearing the parties, found that prosecution has successfully proved the charge of offence punishable under section 302 IPC read with section 34 IPC against both the accused Harjinder Singh and Surjeet Singh, and convicted them accordingly. Each of the convicts after hearing on sentence, sentenced to imprisonment for life under section 302 IPC read with section 34 IPC. Aggrieved by the said judgment and order dated 11.04.2000 passed by Additional Sessions Judge, Udham Singh Nagar in Sessions Trial No.215 of 1999, this appeal was filed before Allahabad High Court on 03.04.2000 where it was admitted on 18.04.2000. The appeal is received by this Court under section 35 of U.P. Re-organization Act, 2000 (Central Act No. 29 of 2000), for its disposal. 6. Before further discussion, we think it just and proper to mention the ante mortem injuries recorded by PW-5 Dr. H.C.K. Joshi in the autopsy report (exhibit A-3), after conducting postmortem examination on the dead body of Jeet Singh. The same are reproduced as under :- 6 i. Contused abrasion reddish brown, 2cm x 2cm on right orbital margin with black eye right. ii. Contusion reddish brown on right pinna with swollen whole pinna. iii. Reddish brown contusion 2cm x 3cm on left forehead situated 5cm. above eye brow. iv. Reddish brown contusion 2cm x 2cm on left frontal area situated 3cm above injury No.3 v. Reddish contusion 1cm x 2cm on middle of chin with bony crepites present over fractured midline of mandible with adherent blood clots. vi. Red contusion 2cm x 2cm lower part of middle frontal area. vii. Depressed front of chest on both sides with bony crepits. On internal examination it was found that there were blood clots in the skull iliac. The ribs were found fractured pleura was found lacerated. Both the lungs were damaged due to ribs fracture. The medical officer opined that deceased had died due to ante mortem injuries about one and half day before. The evidence adduced by PW-4 Dr. H.C.K. Joshi read with autopsy report establishes on record that Jeet Singh died a homicidal death in the intervening night of 24th/25th of April 1999. Now we have to see whether 7 accused appellants Harjinder Singh and Surjit Singh with common intention, committed the murder of Jeet Singh. 8. It is relevant to mention here that from the evidence on record, it is clear that Jeet Singh’s son Karnail Singh (PW3) was married to the sister of Harjinder Singh. In other words, Jeet Singh (deceased) was father-in-law of sister of accused Harjinder Singh. It is also relevant to mention here that Jeet Singh (deceased) belongs to village Lamakheda, and the incident is said to have taken place in village Sundernagar. In this backdrop, we have to appreciate the facts narrated by the eyewitnesses. PW-1 Sukhbir Singh states that Harjinder Singh had taken loan of ` 5,000/- from his father Jeet Singh which he did not return. The witness further states that on the day of incident Jeet Singh had gone to demand the repayment of the loan. According to this witness (PW-1), he accompanied his father (Jeet Singh). When they (PW-1 Sukhbir Singh and deceased) reached in the house of Harjinder Singh, he was not found there. On this the two stayed in the house of Harjinder Singh and at about 2-2:30 a.m. Harjinder Singh along with Surjit Singh came there. Jeet Singh demanded money from Harjinder Singh who started hurling abuses at Jeet Singh. Thereafter Surjit Singh caught hold of Jeet Singh, and Harjinder Singh picked up a iron rod and gave blows 8 on the head and jaw of the deceased. According to PW-1 Sukhbir Singh, he raised alarm and PW-2 Nirmal Singh came with a torch at the spot. PW-2 Nirmal Singh has corroborated the prosecution story by saying that he came out with a torch on hearing the noise, and saw that Surjit Singh had caught hold of Jeet Singh and Harjinder Singh was giving blow with iron rod. 8. But the testimony of the above two eyewitnesses does not appear to be natural and convincing. Both the alleged eyewitnesses, namely, PW-1 Sukhbir Singh and PW-2 Nirmal Singh admittedly belong to village Lamakheda. Incident had taken place in village Sundernagar, as such; both of these witnesses are the chance witnesses in the village that too in odd hours. Had the two witnessed the commission of crime, in the manner suggested by them, there should have been no difficulty for them to lodge the first information report immediately after the incident at police station Nanakmatta which was at a distance of 03 kms. from Sundernagar. The first information report appears to have been lodged by PW-3 Karnail Singh at 9:35 a.m. on 25.04.1999. Apart from this, the two eyewitnesses and complainant state that the dead body of Jeet Singh was lying in front of house of Harjinder Singh in a cot. But in the inquest report (exhibit A-4) and the statement of PW-7 Pritam Singh shows that the dead body was lying in 9 the courtyard of Gurumukh Singh. Site plan (exhibit A-9) does not show house of Gurumukh Singh. 9. In the above circumstances, we are of the view that the testimony of the two eyewitnesses does not inspire confidence and it cannot be said that the prosecution has successfully proved charge of offence punishable under Section 302 read with Section 34 IPC against accused Harjinder Singh and Surjit Singh beyond shadow of reasonable of doubt. 10. For the reasons as discussed above, the appellants are entitled to the benefit of reasonable doubt, and the appeal deserves to be allowed. The appeal is allowed. Impugned judgment and order- dated 11.04.2000 passed by the Additional Sessions Judge, Udham Singh Nagar, in Sessions trial No. 215 of 1999 is set aside. Accused appellants Harjinder Singh and Sukhbir Singh are acquitted of the charge of the offence punishable under Section 302 read with Section 34 IPC. The accused appellants are on bail, they need not surrender. Their bail is cancelled, and sureties discharged. Lower court record be sent back. (Nirmal Yadav, J.) (Prafulla C. Pant, J.) JKJ 04.10.2010