Reserved IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Government Appeal No. 1882 of 2001 (Old No. 1900 of 1991) State …………………Appellant. Versus (1) Ganesh Dutt Pathak S/o Ganga Dutt R/o Village Wapila Patwari Chetra Gadtir, Tahsil Didihat District Pithoragarh. (2) Deep Chandra Pathak S/o Ganesh Dutt Pathak R/o Village Wapila, Patti Gadtir, Tehsil Didihat, District Pithoragarh. ……………..Respondents. Sri Harish Chandra Pujari, learned Additional Government Advocate for the appellant. Smt. Pushpa Joshi, learned counsel for the respondents. Hon’ble Prafulla C. Pant, J. Hon’ble Dharam Veer, J. [Per- Prafulla C. Pant, J.] This appeal, preferred under Section 378 of Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), is directed against the judgment and order dated 26.06.1991, passed by learned Sessions Judge, Pithoragarh, in Sessions Trial No. 7 of 1990, whereby accused / respondents Ganesh Dutt and Deep Chandra are acquitted of charge of offence punishable under Section 302 read with Section 34 of Indian Penal Code, 1860 (hereinafter referred as I.P.C.). (2) Heard learned counsel for the parties and perused the record. (3) Prosecution story in brief is that Bhupal Singh (P.W.2), lodged a First Information Report (Ext.A-2) with Patwari Gartir, Tehsil Didihat, District Pithoragarh on 06.04.1990 at 10.00 P.M. alleging that one Narain Singh informed him that accused / respondents Ganesh Dutt and Deep Chandra quarreled with Virendra Singh (deceased) and after quarrel they caused injuries on his person. Consequently, he died. (In interior hills of Uttarakhand revenue officials are given police powers). A check report (Ext.A-4) was prepared on the basis of the First Information Report lodged by the informant, registering a case under Section 302 I.P.C., against both the accused, who are father and son. On 07.04.1990, the Patwari, who took up the investigation came to the spot and took the dead body of deceased in his possession. He prepared the Inquest Report (Ext.A-5), Sketch of Dead Body (Ext.A-6), Police Form No. 13 (Ext.A-7), Police Form No. 33 (Ext.A-8), Letter to Chief Medical Officer (Ext.A-9) and Sample Seal (Ext.A-10) and sent the dead body for post mortem examination to Pithoragarh. On 08.04.1990 at about 2.10 P.M. Dr. M.M. Gupta (P.W.1), the Chief Medical Officer, Pithoragarh, conducted the postmortem and opined that the deceased had died due to coma on account of head injuries received by him. After interrogating the witnesses and on completion of investigation Police submitted charge sheet (Ext.A-17) against both the accused. (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., appears to have committed the case to the court of Sessions for trial. Learned Sessions Judge, Pithoragarh, on 16.07.1990 after hearing the parties framed charge of offence punishable under Section 302 read with Section 34 I.P.C. against both the accused who pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W.1 Dr. M.M. Gupta, the Chief Medical Officer, who conducted the autopsy on the dead body of the deceased, P.W.2 Bhupal Singh, informant, who lodged the First Information Report, P.W.3 Chandra Singh, an eyewitness, P.W.4 Keshar Singh, antoher eyewitness, P.W.5 Bahadur Singh, eyewitness, P.W.6 Dan Singh alias Dinesh Singh, eyewitness and P.W.7 Krishnand, Patwari, who investigated the crime. Oral and documentary evidence was put to the accused under Section 313 Cr.P.C. to which they alleged to be false. It is also alleged by the accused that the witnesses of fact had enmity with them. (5) After hearing the parties the trial court came to the conclusion that the prosecution has failed to prove charge against the accused beyond reasonable doubt, as such acquitted them of the charge. Aggrieved by said judgment and order dated 26.06.1991, passed by learned Sessions Judge, Pithoragarh, in Sessions Trial No. 7 of 1990, State preferred this appeal before Allahabad High Court on 26.09.1991, where the leave was granted and the appeal was admitted on 21.07.1992. The appeal was received by this Court under Section 35 of U.P. Reorganisaton Act, 2000, for its disposal. (6) Before further discussions, we think it just and proper to mention that anti mortem injuries found on the body of the deceased by Dr. M.M. Gupta (P.W.1), which are recorded in postmortem examination report (Ext.A-1). The anti mortem injuries recorded by the Chief Medical Officer are being reproduced below:- (1) Lacerated would 2cm X ½ cm on forehead on right side 3 cm above eyebrow. (2) Three small contusions on right forehead ½ cm X ½ cm each. Distance between two is 1½ to 2 cm. (3) Four contused abrasions ½ cm X ½ cm on nose lower ½. (4) Abraded contusion 1½ cm X 1½ cm on right face 3 cm below eye 4 cm lateral to ala of nose. (5) Abraded contusion ½ cm x ½ cm on face on right side 3 cm lateral to eye, 3 cm in front of ear. (6) Lacerated wound 8 cm x 4 cm x 1 cm deep on left fact 4 cm lateral to eye. (7) Lacerated wound lower lip 2 cm x 1 cm, ½ cm lateral to midline on left side. (8) Lacerated wound of upper lip on left side 1 cm above border of lip. (9) Lacerated wound over left side of head 6cm x 3 cm x up to bone deep. 5 cm above left ear 7 cm lateral to midline. (10) Lacerated wound on left side of head 7cm x 3 cm x up to bone deep. 4 cm below injury no. 9. (11) Lacerated wound on head on left temple region 6 cm above & lateral to eyebrow. (12) Lacerated wound 2½ cm x 1½ cm on face ½ cm lateral to left eye. (13) Lacerated wound 2 cm x 1½ cm (one and a half) on face on left side 1½ cm below eye. (14) Lacerated wound 4 cm x 2 cm on right side head up to bone deep 3 cm lateral to midline 14 cm behind eyebrow. (15) Abraded contusion on neck 3½ cm x 3 cm on front of neck 4 cm above sterna notch on left side of midline, just lateral to midline. (16) Abraded contusion 2 cm x 1½ cm on front of neck 1 cm below & lateral to injury no. 15. (17) Abraded contusion 5 cm x 3 cm on front of right shoulder 11 cm above nipple on 10 O’clock position. (18) Abraded contusion 2 cm x ½ cm on back of neck in middle. (19) Abraded contusion 3 cm x 2 cm on back on right side 6 cm lateral to midline at level of T7 spine. (20) Abraded contusion 6cm x ½ cm on back on right side on upper part of shoulder blade. (21) Lacerated wound 2½ cm x ½ cm on back of left forearm 8 cm below elbow tip. Skin deep. (22) Lacerated wound 1½ cm x ½ cm on back of left forearm ½ cm below injury no. 21. Skin deep. (23) Abraded contusion on back of left index finger on proximal joint. (24) Contusion two places ½ cm x ½ cm on back of right little finder. (25) Contusion 1 cm x 1 cm on proximal joint on right finger on back on right side. (26) Contusion of tip of right index finger more on back. (27) Abraded contusion 2½ cm x 2½ cm on back of right hand. Cause of death, in the opinion of the Chief Medical officer, was coma as a result of anti mortem injuries over the head. From the statement of P.W.1 Dr. M.M. Gupta, read with autopsy report (Ext.A-1), it is clear that prosecution has successfully proved that Virendra Singh had died homicidal death. Now the question is that who caused the injuries on the person of the deceased. (7) P.W.2 Bhupal Singh is informant. He has simply proved First Information Report (Ext.A-2). He is not an eyewitness. As such his statement does not throw any light as to who committed the crime. (8) To prove the charge against the accused Ganesh Dutt Pathak and Deep Chandra Pathak, eyewitnesses, namely, P.W.3 Chandra Singh, P.W.4 Keshar Singh, P.W.5 Bahadur Singh and P.W.6 Dan Singh alias Dinesh Singh, got examined by the prosecution. They have stated in their examination-in-chief that on 6th April 1990 in the evening they saw accused / respondents quarrelling with Virendra Singh and stoning him. To assess the truthfulness of the prosecution story, narrated by these witnesses, certain facts are necessary to be noted down. The incident is said to have taken place in Kali Vinayak on the road, but is appears that all the eyewitnesses, namely, Chandra Singh, Keshar Singh, Bahadur Singh and Dan Singh alias Dinesh, incidentally happened to be of the same village Kamchhina, same caste and are related to each other. This fact is admitted by P.W.3 Chandra Singh in his opening sentence of the cross-examination. Apart from this, the trial court while appreciating the evidence has particularly observed that there is no motive of commission of crime on the part of the accused / respondents. P.W. 4 Keshar Singh and P.W.5 Bahadur Singh have stated that there were 50-60 persons who were there at the spot when the incident took place. They say that Virendra Singh (deceased) of their Village parked truck in Kali Vinayak in front of the shop of Ganesh Ram to which the people objected. In their cross examination, they also stated that a bus owned by K.M.O.U. Limited (Kumaon Motor Owners Union Limited) carrying passengers got stopped, as the deceased has parked the truck on the road due to which people objected and a quarrel took place. The trial court appreciating the evidence has observed that it cannot be ruled out that when the deceased refused to remove the truck where it was parked obstructing the road, passengers after getting annoyed, in a mob, might have lynched the deceased. Having gone through the evidence on record, we agree that the view taken by the trial court that even statement of P.W.6 Dan Singh alias Dinesh Singh does not repose the confidence as he got down from the bus some 100 meters away from the place of incident and he had no occasion to see the incident. It is pertinent to mention here that had all these five eyewitnesses, mentioned above, witnessed the two unarmed accused / respondents causing injuries to Virendra Singh by stoning, they could have easily over powered or stopped them from doing so. It is settled principle of law that where on the basis of evidence on record, two views are possible and the trial court has taken a view, the appellate court should not interfere ordinarily with such view to reverse the order of acquittal passed in favour of the accused. (9) For the reasons as discussed above, we do not find any illegality in the impugned order passed by learned Sessions Judge. Therefore, the appeal is liable to be dismissed. The same is dismissed. (Dharam Veer, J.) (Prafulla C. Pant, J.) 04.04.2008 NS