IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Government Appeal No. 1883 of 2001 (Old No.581 of 1999) State …Appellant Versus 1- Madho Singh 2- Kheoraj Singh 3- Harendra Singh 4- Kedar Singh …Respondents Mr. S.S. Adhikari, A.G.A. for the appellant Mr. R.S. Sammal, Advocate for the respondents Hon’ble B.C. Kandpal, J. Hon’ble Nirmal Yadav, J. [Per: Hon’ble B.C. Kandpal, J. (Oral)] This Government Appeal, preferred under Section 378 Cr.P.C., is directed against the judgment and order dated 5.10.1985 passed by Special Judge, Nainital, in Sessions Trial No. 219 of 1983 thereby acquitting the respondents of the charge under Section 302 I.P.C. 2- Prosecution story in brief is that on 9.10.1982 Bhupal Singh Bhandari gave an application (Ext.Ka.2) to Patwari Suyalbari with the allegation that on 8.10.1982 at 8 a.m. his brother Bahadur Singh (deceased) went from his house for going to school but he did not return in the evening. In the morning of 9.10.1982 he went in his search to the school and was told that Bahadur Singh did not attend the school on 8.10.1982. While returning home he found the dead body of Bahadur Singh which he could identify by his clothes. The case was registered at 12.45 p.m. on that day. The Patwari 2 came to near the dead body and prepared its inquest memo and sent it for post mortem examination. The investigation of the case was entrusted to Patwari Balwant Ram (PW-7). The I.O. went on the spot, prepared inquest report, sealed the dead body and prepared site plan (Ext.Ka.8). He also took bloodstained and simple earth from the place of occurrence. He also found one bloodstained stone on the place and prepared their memos. The investigating officer recorded the statement of witnesses and after completing investigation he submitted charge sheet (Ext. Ka.9) against the accused under Section 302 I.P.C. 3- The learned 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. The learned Sessions Judge after hearing the parties framed charge of offence punishable under Section 302 I.P.C. against accused/respondents. The accused pleaded not guilty and claimed to be tried. 4- The prosecution in order to bring home guilt against the accused persons got examined as many as nine witnesses in the case. PW-1 Dr. A.K. Pant is the Medical Officer, who conducted the post-mortem examination and proved his report (Ext.Ka.1). PW-2 Hukum Singh and PW-3 Tej Singh are the so called eyewitnesses of the case. PW-4 Bhupal Singh is the informant who lodged the F.I.R. (Ext.Ka.2). PW-5 Smt. Manju Devi is the witness, who is brother’s wife of the deceased. PW-6 Madhwa Nand is the witness of inquest report (Ext.Ka.6), PW-7 Balwant 3 Ram is the investigating officer of the case, who submitted the charge sheet (Ext.Ka.9) against the accused/respondents. PW-8 Tara Dutt is the prosecution witness. PW-9 Nandkishore Paliwal, Patwari Patti Mangoli is the witness, who proved Ext.Ka.14 being true copy of the F.I.R. 5- The accused/respondents in their statements under Section 313 Cr.P.C. denied the prosecution case and alleged that they have been falsely implicated in the case. However, the accused did not lead any evidence in their defence. 6- The trial court having considered the entire evidence on record and hearing learned counsel for parties found not guilty the accused/respondents of the offence punishable under Section 302 I.P.C. and acquitted them of the charge levelled against them, vide impugned judgment and order dated 5.10.1985. 7- Feeling aggrieved by the aforesaid impugned judgment and order, the State has preferred the present appeal which has been placed before us for disposal. 8- We have heard Sri S.S. Adhikari, learned A.G.A. for the State/appellant, Sri R.S. Sammal, learned counsel for the respondents and perused the record. 9- Before further discussion, it is pertinent to mention here that post mortem examination on the dead body of the deceased was conducted on 11.10.1982 at 11.30 a.m. at Nainital by Dr. A.K. 4 Pant (PW-1), who found the following ante mortem injuries on his person: (i) Multiple fractures of all bones forming face below the sockets of eye. All muscles and skin of face absent, low jaw fractured into fragments. No teeth could be recognized. Maggots crawling all over the area. Disorganized clotted blood present. Decomposed skin on back of head has a incised wound 3 cm x 1.5 cm x bone deep with clotted blood. (ii) Fracture of frontal bone. Disorganized clotted blood present on inner side of frontal bone. Skin above fracture decomposed and no wound recognizable on skin. (iii) Skin covering skull and neck decomposed and full of maggots. Incised would 3 cm x 0.5 cm x muscle deep on front of neck on right side. (iv) Skin and muscles torn at right elbow. Fracture of lower end of humerus at right elbow joint. Disorganized clotted blood present. (v) Fracture of left radius and ulna bones at wrist. Incised wound 4 cm x 05 cm x bone deep on back of hand at the base of fingers. Clotted blood present. The Medical Officer (PW-1) opined that the death had been caused due to shock and haemorrhage caused by the said injuries. 10- The trial court has acquitted the accused/respondents of the charges of murder alleged to have taken place on 8.10.1982, as the prosecution has not been successful to adduce cogent and reliable evidence before the trial court. As per the prosecution case, PW-2 Hukum Singh and PW-3 Tej Singh have seen the accused committing murder of the deceased Bahadur Singh. PW-2 Hukum Singh has admitted his relationship with the complainant as the complainant is the 5 ‘sarhu’ of his real brother of Ram Singh. This witness has deposed that on 7th day about two years ago he had gone to Almora to meet his brother, on the next day at about 8.00 a.m. he was returning his home in the motor and he got down at Khenapani, from there he started for his house and when he reached near Gangnath he heard shrieks ‘mar gaya mar gaya’. At this he saw Kedar Singh there. He also saw Kheoraj Singh and Harendra Singh having caught Bahadur Singh and Madho Singh was in front of Bahadur Singh and he was having Khukri. Kedar Singh gave a Khukri blow at Bahadur Singh and handed over the Khukri to Sagat Singh. He was telling that he had to reach before Mohan Singh. At this Kedar Singh fled away from there. Thereafter, he saw that Madho Singh and Sagat Singh also beat Bahadur Singh with Khukri and Kheoraj Singh and Harendra Singh beat Bahadur Singh with stones. PW-2 Hukum Singh has further deposed that Girish Chandra was towards the back side and he turned from there and went away, whereas Pitambar was running towards another side. He also saw Taj Singh (PW-3) running away from there. This witness further deposed that after one and half weeks of the aforesaid incident he went to the house of Ram Singh Pradhan at about 8.00 p.m., there Madho Singh was talking to Ram Singh that they have completed the work but you will have to save us. This witness also deposed that he has narrated the incident to his brother Kishan Singh Bisht. 11- The another eyewitness PW-3 Tej Singh has stated on oath that about 2½ years ago he was returning his house from his in-laws house. When 6 he reached at Kullad Khelpani road, he saw accused Kedar Singh. Thereafter, Bahadur Singh and then Girish Chandra were moving. When he reached at Gangnath Than, then he saw Madho Singh, Sagat Singh and Kheoraj Singh and Bahadur Singh was standing in the middle. Madho Singh and Sagat Singh were armed with Khukri. The Khukri in the hand of Madho Singh was having something of red colour. Harendra Singh and Kheoraj Singh were having stones in their hands and Madho Singh and Sagat Singh were beating Bahadur Singh with Khukri, whereas Harendra Singh and Kheoraj Singh were beating him with stones. After receiving injuries Bahadur Singh fell down. Thereafter, this witness (PW-3) ran away from the place of occurrence. This witness has further deposed that he did not tell about the incident to anyone due to fear. He has also deposed that on 18th October he went at Patwari Headquarter Chopra, but Patwari was not there, then he returned to Naini Pul where he met with Bhupal Singh who informed him that Patwari had gone to Nainital, then he came to Nainital and narrated the incident to Patwari there. The above conduct of this witness seems to be highly improbable. The incident is said to have taken place on 8th October, but after about 10 days he searched for Patwari and then narrated him the incident. Had this witness actually seen the incident, he would have told the same to the village people. 12- Likewise, the conduct of PW-2 Hukum Singh is highly unreasonable. This witness has deposed that he had narrated the incident to his brother Kishan Singh Bisht, which is not reliable as Kishan Singh 7 Bisht is neither a witness in the case nor he came into picture that he was informed about the incident by his brother Hukum Singh. In his cross- examination, PW-2 Hukum Singh has stated that he had told about the incident to Patwari on 26th October. In the cross-examination, this witness has further clarified that he had informed his brother Kishan Singh Bisht about the incident on 26th October and he had not told about the incident to any other person. Therefore, it is quite clear that this witness kept mum for about 18 days and what prompted him to tell to Patwari and his brother Kishan Singh Bisht after such a long gap. Further, Kishan Singh Bisht has not been interrogated by the Patwari about the factum of the incident narrated to him by his brother Hukum Singh. 13- There is material contradiction in the statements of these two eyewitnesses. According to Hukum Singh (PW-2), Kheoraj Singh and Harendra Singh were catching hold of Bahadur Singh (deceased) and Kedar Singh gave Khukri blow at Bahadur Singh from back side, whereas PW-3 Tej Singh has deposed that Bahadur Singh (deceased) was standing in the middle of Madho Singh, Sagat Singh and Kheoraj Singh. Madho Singh and Sagat Singh were having Khukri and Khukri of Madho Singh was having something of red colour. Therefore, these witnesses are not consistent on the point of giving Khukri blow to the deceased Bahadur Singh. According to PW-2, Kedar Singh gave Khukri blow to the deceased, whereas PW-3 Tej Singh told that Modho Singh and Sagat Singh were giving Khukri blow to the deceased. 8 14- The motive for commission of the crime alleged by the prosecution is to the effect that there was enmity between the deceased and accused Harendra Singh, as the latter wanted to enter into the room of Smt. Manju Devi (PW-5), brother’s wife of Bahadur Singh (deceased) and Bahadur Singh had scolded Harendra Singh on this point. Bahadur Singh has also lodged F.I.R. (Ext.Ka.14) against Harendra Singh prior to this incident. The accused are said to be the companion of Harendra Singh. Smt. Manju Devi (PW-5) has stated that few days prior to the incident accused Madho Singh, Harendra Singh and Kheoraj Singh had abused and threatened her. Letter (Ext.1) recovered from the dead body supports the statement of Smt. Manju Devi (PW-5) that she had given a letter to the deceased for posting it in the name of her husband against the high handedness of Harendra Singh. Therefore, there could be a motive for the commission of the crime, but at the same time motive is like double- edged weapon which cuts at its both ends and it may be a reason for false implication of the accused/respondents for the death of the deceased Bahadur Singh. Therefore, the prosecution cannot get the benefit of this fact. 15- The next set of evidence led by prosecution is extra judicial confession alleged to have been made by Madho Singh to Ram Singh Pradhan that on the instigation of Kedar Singh he had done the work and requested Ram Singh to shut the mouth of Pitambar and to get him bailed out, but Ram Singh has not been examined by the prosecution as it has come in the evidence that he had died. Further, the alleged statement heard by Hukum Singh does not 9 go to show that Madho Singh confessed to have participated in the commission of murder of Bahadur Singh and the above statement of PW-2 Hukum Singh cannot be said to be extra judicial confession. The statement of Hukum Singh (PW-2) has already turned to be highly doubtful; hence the prosecution case is not going to be benefited by the so-called extra judicial confession. 16- There is also contradiction in the statement of Hukum Singh (PW-2) given to the Investigating Officer under Section 161 Cr.P.C. and the statement given in the court. The I.O. Balwant Ram (PW-7) has deposed that Hukum Singh did not tell him that Madho Singh and Sagat Singh gave blows of Khukri and Kheoraj Singh and Harendra Singh beat the deceased with stones. He also did not tell the investigating officer that he had told the incident to his brother Kishan Singh Bisht. In the court Hukum Singh told that he had seen all the accused beating Bahadur Singh either by Khukri or by stones. This all shows that statement of PW-2 Hukum Singh is an afterthought and is not worthy of credence. 17- As stated earlier, PW-3 Tej Singh has admitted that informant’s father-in-law Prem Singh was his close collateral. He has also admitted that his wife’s sister was married with the cousin’s son of informant. Informant is the real brother of the deceased. Thus, this witness (PW-3) was related to the deceased and the informant. The conduct of this witness is also not worthy of credence. Had this witness seen the incident, being the relative of deceased and informant he could have told the incident to the informant and other relatives soon 10 after the incident. Hence, the learned trial court has rightly discarded the testimony of PW-2 Hukum Singh and PW-3 Tej Singh. 18- The reasons recorded by the trial court for acquittal of the accused/respondents are based on material on record and we do not find any ground to interfere with the same. The trial court has rightly found not guilty the accused/respondents for the offences of murder of deceased Bahadur Singh. 19- In view of the above, appeal lacks merit and is liable to be dismissed. 20- The appeal is dismissed. The impugned judgment and order dated 5.10.1985 passed by the trial court is hereby confirmed. (Nirmal Yadav, J.) (B.C. Kandpal, J.) 10-03-2010 SP