IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Government Appeal No. 2085 of 2001 State of Uttaranchal (Now Uttarakhand) … Appellant Vs Kishan Kumar & others … Respondents Sri S.S. Adhikari, learned A.G.A. for the State Sri Sanddep Tandon, learned counsel for the accused/respondents Coram: Hon’ble B.C. Kandpal, J. Hon’ble Nirmal Yadav, J. [(Judgment Per: B.C. Kandpal, J. (Oral)] This appeal, under Section 378 of Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.) is directed against the judgment and order dated 24.05.2001 passed by learned Additional District & Sessions Judge, Dehradun in Sessions Trial No. 181 of 2000 whereby the accused/respondents, namely, Kishan Kumar, Prem Prakash @ Mote, Chandra Kiran and Jile Giri have been acquitted of the charge of offence punishable under Section 302 read with Section 34 of I.P.C. 2. Prosecution story, in brief, is that a written report (Ext. Ka. 1) was lodged by Ms. Sangeeta Rawat at Police Station, Mussoorie alleging therein that her father Gyan Singh was serving in Lal Bahadur Shastri Academy, Mussoorie as ‘Saees’. All the members of the family were living with the father. It has further alleged that in the night of 3/4.07.2000 accused persons, namely, Chandra Kiran, Jile Singh, Kishan Lal and Mote were playing cards with her father. She along with her brother – Mahavir and Jaiveer was sleeping in a room. She heard a noise of her father telling he 2 is killed, as he won the money dishonestly. At about 05:00 a.m., she heard a cry of her father. On this, she and her brother Mahavir rushed towards her father’s room and saw that Jile Singh, Chandra Kiran, Kishan and Mote were running to escape from the spot. On hearing the hue and cry of Gyan Singh, his companions, Ramji, Itwari Lal and Mahender came at the spot. By that time, the whole body of her father was got burnt due to pouring of kerosene oil on the body. On 04.07.2000 at 06:30 a.m., the First Information Report (Ext. Ka. 16) was lodged. The deceased – Gyan Singh was firstly treated by Chief Medical Officer posted at Lal Bahadur Shastri Academy, Mussoorie and thereafter, he was shifted to Doon Hospital, Dehradun where he died on 04.07.2000 at about 11:25 a.m. The investigation of the case was entrusted to Satya Devi Yadav (P.W.9) – S.I. He prepared the site plan (Ext. Ka. 4). Fard was prepared for taking into possession of bed and cane (Ext. Ka. 5). Memo of arrest is Ext. Ka. 7 to 10. Watch and Maang Teeka made of gold allegedly recovered from the possession of Chandra Kiran were also taken into possession and the fards was prepared in that respect, which are Ext. Ka. 11 and 12. Initially the case was registered under Section 307 of I.P.C., but thereafter, it was converted for the offence punishable for the charge under Section 302 read with Section 34 of I.P.C. 3. Learned Additional District & Sessions Judge, Dehradun, after hearing learned counsel for the parties, framed the charge of offence punishable under Section 302 of I.P.C. read with 34 of I.P.C. against the accused. Accused/respondents denied the charge and claimed trial. 3 4. On this, prosecution got examined Itwari Lal (P.W.1) – declared hostile, Ramji (P.W.2) – declared hostile, Sangeeta Rawat (P.W.3) – daughter of the deceased – Gyan Singh, Mahavir (P.W.4) – son of the deceased, Mahender Singh (P.W.5) – declared hostile, Bhopal Singh (P.W.6), Dr. H.G.S. Manral (P.W.7) – who conducted postmortem of the deceased, Dr. Anil Bhatnagar (P.W.8) and S.I. – Satya Devi Yadav (P.W.9) – who conducted the investigation of the case and submitted the chargesheet in order to support of its case. 5. The oral and documentary evidence was put to the accused under Section 313 of Cr.P.C. by the trial court, relating to which, the accused/respondents, alleged that the same is false. They further submitted in their statement that they have falsely been implicated on account of enmity. They have no connection with the items allegedly recovered by the prosecution. The accused – Chandra Kiran stated that the items belonging to the complainant have wrongly been shown as recovered from him. However, no evidence in defence was adduced by the accused/respondents. 6. After hearing learned counsel for the parties and perusing the entire material available on record, found that the charge against the accused/respondents is not proved beyond reasonable doubt and acquitted them of the charge, framed against them vide judgment and order dated 24.05.2001. 7. Feeling aggrieved by the said judgment and order, the State/appellant has preferred this appeal before this Court on 22.08.2001. 4 8. Heard Sri S.S. Adhikari, learned A.G.A. for the State/appellant, Sri Sandeep Tandon, learned counsel for the accused/respondents and perused the record. 9. Before further discussions, we think it just and proper to mention here the ante mortem injuries found on the dead body of the deceased – Gyan Singh by Dr. H.G.S. Manral. The autopsy on the dead body of the deceased was conducted by Dr. H.G.S. Manral (P.W.7) on 04.07.2000 at 04:05 p.m. He has opined that the deceased had died due to shock as a result of antemortem burn injuries. He has also opoined that the case if death may be burn injuries sustained by pouring kerosene oil. According to him, the injured received following injuries:- Pugilistic posture present. Superficialto deep burn 100 % (except penis) black in colour. Line of redness and singeing of hair present. Smell of kerosene present. 10. The injuries found on the person of the deceased are recorded by Dr. Anil Bhatnagar (P.W.8) on 04.07.2000 in the morning. He has stated that life saving injections were administered to him. He has stated in his evidence that on being asked, as to who caused burn injuries to him, the name of Jale Giri was responded by the deceased. After death of the deceased on the same day, postmortem examination was conducted at 04:05 p.m. by P.W.7-Dr. H.G.S. Manral, who prepared autopsy report. On external examination he found pugilistic posture present. Superficial to deep burn 100% (except penis) black in colour. Line of rediness and singeing of hair present. Smell of kerosene present. The question 5 before this Court is whether the accused/respondents with common intention have caused death of Gyan Singh by pouring kerosene oil and whether the trial court erred in law in acquitting the accused / respondents. 11. The prosecution has produced Itwari Lal as P.W.1. This witness has stated in his evidence that he did not see Jile Singh, Kishan Kumar, Chandra Kiran and Prem Prakash causing burn injuries to Gyan Singh by pouring kerosene oil. This witness was declared hostile. Similarly, Ramji (P.W.2) has narrated the same fact by deposing that he did not witness the accused persons causing burn injury to the deceased and running away from the spot. This witness also declared hostile. The prosecution has produced Sangeeta Rawat as P.W.3 and she was the key witness of the prosecution case but she was also declared hostile. She has stated in her deposition that on the date of incident her father was playing cards (gambling) with Jile Singh, Kishan Kumar, Chandra Kiran and Prem in his room. This witness also deposed that in the morning of the incident her father was stating ‘Jile Giri, tum mujhe quon pakar rahe ho, mujhe chor do yaar.’ She has further stated that she did not see the accused persons running away from the spot. She has also deposed that she does not know as to whether the police recorded her statement or not. Later on, this witness was also declared hostile on the request of prosecution. P.W.4 – Mahavir has deposed in his evidence that accused – Kishan Kumar, Prem Prakash @ Mote, Chandra Kiran and Jile Giri were playing cards along with his father. They snatched money from his father and thereafter set fire on him by pouring kerosene oil. This witness is not the eyewitness of the incident and he did not see the accused persons running 6 away from the place of occurrence. Whereas another witness Mahender Singh was produced by the prosecution as P.W.5 who has stated that Gyan Singh was found in the room in an unconscious condition. Another witness Bhopal Singh (P.W.6) deposed in his testimony that the victim/deceased – Gyan Singh was his uncle. He saw his uncle in normal state in Doon Hospital. He has also deposed that his uncle disclosed the names of the culprits. This witness proved the Panchnama. After going through the statement of the above witnesses, it appears that the prosecution has utterly failed in establishing the guilt of the accused beyond reasonable doubt. The testimony of the above four witnesses was found doubtful on the ground that there were material contradictions in the statements of the above witnesses and most of them were declared hostile by the prosecution. 12. It further appears that the case rests on circumstantial evidence. In the absence of direct evidence, the prosecution tried to prove the case through circumstantial evidence. When the case, which rests on circumstantial evidence, must be established by a complete chain of circumstances. These circumstances should form a chain pointing towards the guilt of the accused and the same should be so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. If any link in the chain is missing the guilt of the accused cannot be established. It appears from the statement of the witnesses produced by the prosecution, there is not a single actual eyewitness of the incident, who had seen the accused persons committing the offence of murder by putting him in the fire. 7 14. Apart from this, Sangeeta Rawat (P.W.3) is the daughter of the deceased and she was also the key witness of the prosecution, but she was declared hostile on the request of the prosecution. Other witnesses of fact also turned hostile and did not support the prosecution case at all. These facts also create a reasonable doubt on the prosecution story. 15. 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 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 as the same is based on sound reasons mentioned by the trial court holding that the prosecution story is not proved beyond reasonable doubt. 16. For the reasons, as discussed above, this appeal is liable to the dismissed. The same is dismissed. The order dated 24.05.2001, passed by Additional & Sessions Judge, Dehradun, in Sessions Trial No. 181 of 2000, acquitting the accused/respondents Kishan Kumar, Prem Prakash @ Mote, Chandra Kiran and Jile Giri from the charge of offences punishable under Sections 302/34 I.P.C. is affirmed. (Nirmal Yadav, J) (B.C. Kandpal, J.) 04.05.2010 04.05.2010 ASWAL