HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 316 of 2008 Gopal Puri S/o Bach Puri, Resident of Bypass Road, Nagla, Police Station-Rudrapur, District Udham Singh Nagar. ……..Appellant. (in jail) Versus State of Uttarakhand. …….Respondent Mr. A.S. Gill, Advocate and Mr. Milind Raj, Advocate for the appellant. Mr. Prabhakar Joshi, Brief Holder for the State/respondent. Dated: March 4, 2011 Coram: Hon’ble Prafulla C. Pant, J. Hon’ble V.K. Bist, J. Prafulla C. Pant, J. (Oral) This appeal, preferred under Section 374 of the Code of Criminal Procedure, 1973 (for short Cr.P.C.), is directed against the judgment and order dated 23rd October, 2008 passed by Sessions Judge, Nainital in Special Session Trial No. 32 of 2005, whereby appellant Gopal Puri has been convicted under Section 302 read with Section 34 of the Indian Penal Code, 1860 (for short I.P.C.), and sentenced to imprisonment for life and also directed to pay a find of ` 10,000/- in default of payment of fine, he has been directed to undergo imprisonment for a further period of one year. 2. Heard learned counsel for the parties and perused the Lower Court’s Record. 3. Prosecution story, in brief, is that on 11.05.2005, at about 1:30 p.m., appellant Gopal Puri, armed with PATAL 2 (heavy sharp edged weapon), alongwith, co-accused Pramod Danu (since deceased) armed with a fire arm and one Jagdish Singh also armed with PATAL, came to the shop of Mahesh Chandra Pant (deceased), situated in Car Road, Bindukhatta within the limits of Police Station- Lalkuan, and committed his murder. A First Information Report was lodged by Navin Chandra Pant (P.W.-1) at Police Station-Lalkuan on the very day at about 3:25 p.m., against Pramod Danu (since deceased), Gopal Puri- appellant and two others, relating to offences punishable under Section 302 I.P.C. It is also mentioned in the First Information Report that accused Pramod Danu was a history-sheeter. It is further mentioned in the report that Mahesh Chandra Pant was taken, in an injured condition, for medical treatment to hospital where he was declared brought dead. On the basis of First Information Report, Check report (Ext. A-4) was prepared by the police and crime no. 847 of 2005 was registered relating to offences punishable under Section 302 I.P.C. and one punishable under Section 2/3 U.P. Gangsters and Anti Social Activities (Prevention), Act 1986. Investigation was conducted by Station House Officer Harish Chandra Panda (P.W.12). Meanwhile, as Mahesh Chandra Pant was declared dead in Soban Singh Jeena Base Hospital, Haldwani, the inquest report (Ext.A-8) had already been prepared by the Police at Haldwani. The dead body of the deceased, in a sealed condition, alongwith the sketch of dead body (Ext.A-10), Police Form No.13 (Ext.A-9), sample seal (Ext. A-11) and letter to Chief Medical Officer (Ext.A-12), was sent for post mortem examination. Dr. B.K. Tilara (P.W.5) conducted post mortem examination on the dead body of Mahesh Chandra Pant on 11.05.2005 and prepared autopsy report (Ext. A-13). He recorded as 3 many as six ante-mortem injuries, which included five incised wounds and one firearm injury in the report. The Medical Officer opined that the deceased has died of shock and haemorrhage due to ante-mortem injuries. Investigating Officer inspected the spot; prepared site plan (Ext. A-15 and Ext. A-17). He also interrogated the witnesses and made recoveries of PATAL from accused/ appellant Gopal Puri and Jagdish Singh and prepared recovery memos (Ext. A-14 and Ext.A-3 respectively). On completion of investigation, Charge sheet (Ext.A-21) was filed by the Investigating Officer against the accused/ appellant Gopal Puri and Jagdish Singh alias Jaggu for the trial in respect of offences punishable under Section 302 I.P.C. and one punishable under Section 2/3 U.P. Gangsters and Anti Social Activities (Prevention), Act 1986. It was mentioned that the third accused Pramod Danu was absconding. (It is reported that later Pramod Danu was killed in an encounter with the Police). 4. On receipt of the charge sheet, after giving necessary copies to the accused, as required under Section 207 of Cr.P.C., the parties were heard and charge of offences punishable under Section 302 read with Section 34 I.P.C. and one punishable under Section 2/3 U.P. Gangsters and Anti Social Activities (Prevention), Act 1986 were framed against the aforesaid two accused Jagdish Singh and Gopal Puri, who pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W.1 Navin Chandra Pant (informant-an eye witness), P.W. 2 Lalit Mohan Pant, P.W.3 Anand Prasad (scribe of the report), P.W. 4 Ayyaz Alam Khan (witness of inquest report), P.W.5 Dr. B.K. Tilara, who conducted post mortem examination, P.W.6 Sub Inspector Arun Kumar, 4 P.W.7 Sub Inspector Manoj Kumar, P.W.8 Suresh Chandra Joshi, P.W.9 Girdhar Singh (declared hostile), P.W. 10 Tara Singh Negi (declared hostile), P.W.11 Chatur Ram and P.W.12 Harish Chandra Panda (Investigating Officer). 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. In defence D.W.1 Sunder Singh was got examined. After hearing the parties, the Trial Court found accused/appellant Gopal Puri guilty of charge of offence punishable under Section 302 read with Section 34 I.P.C. After hearing on sentence, the convict was sentenced to imprisonment for life and also directed to pay fine of ` 10,000/-. However, he was acquitted of the other charge relating to offence punishable under Section 2/3 U.P. Gangsters and Anti Social Activities (Prevention), Act 1986. Another accused Jagdish Singh was acquitted of the charge relating to both the offences. The convict Gopal Puri, aggrieved by the impugned judgment and order dated 23.10.2008 passed by Sessions Judge, Nainital in Special Sessions Trial No. 32 of 2005, preferred this appeal before this Court. 5. Before further discussion, we think it just and proper to mention the ante-mortem injuries recorded by P.W.3 Dr. B.K. Tilara, who conducted post mortem examination on 11.05.2005 and recorded following ante- mortem injuries on the body of Mahesh Chandra Pant:- i. An incised wound 8 cm. x 0.1 cm. on the left side of forehead, margins sharp, the wound is bone deep, exposed frontal bone found fractured. ii. An incised wound 10 cm. x 1 cm. noted on the face which is obliquely placed extending from the left nostril to chin, margins are sharp and 5 underlying fracture, left nostril muscles, incisor teeth, tongue and the mandible are cut alongwith upper jaw where incisor teeth are detached. Not attached to tissues. iii. An incised wound of size 6 cm. x 0.5 cm. noted on the chin, adjacent to the injury no.2, margins are sharp, muscle cut. iv. Incised wound 3 cm. x 0.5 cm. lying adjacent to the injury no.3 margins sharp. v. Incised wound of 6 cm. x 0.5 cm. on the mid pad of skull, margins sharp, underlining bone found cut alongwith heamotome in and around tissue free blood seen in cranial cavity. vi. An wound of entry of oval shaped 3 cm. x 1 cm. noted on the interiorly left chest on the anterior axillary line, on the second and third intercostal space, 5 cm. above the left nipple laterally, margins inverted and scorched and wound is cavity deep, there is a blackening present around the wound in the area of 3 cm., no tattooing observed. On further exposure underlying second and third rib found fractured. Ten pellets recovered from the site of injury (chest cavity), which was sealed. 6. According to the Medical Officer (P.W.5) Dr. B.K. Tilara, the deceased has died of shock and haemorrhage due to ante-mortem injuries. From the medical evidence, as discussed above, it is established on record that Mahesh Chandra Pant died a homicidal death. Now this Court has to see whether accused/appellant Gopal Puri, with common intention with other co-accused, committed murder of Mahesh Chandra Pant or not? 6 7. From the First Information Report (Ext.A-1) it appears that there are as many as four eye witnesses of the incident. Informant Navin Chandra Pant (P.W.1) in the First Information Report, reports that while coming from home to his shop (where the murder was committed), he saw accused Pramod Danu (since killed in an encounter) armed with firearm, accused/appellant Gopal Puri armed with PATAL and co-accused Jagdish Singh also armed with PATAL, committed murder of his brother(deceased). However, except P.W.1 Navin Chandra Pant none of the other eye witnesses, mentioned in the First Information Report, has supported the prosecution story. P.W.9 Girdhar Singh and P.W.10 Tara Singh Negi, who are named as eye witnesses in the First Information Report, did not support the prosecution case and were declared hostile. Witness Sunder Singh, named in the First Information Report, was got examined on behalf of the defence and he stated that assailants were Pramod Danu and one another person but not Gopal Puri. As such, the sole testimony, left on the record, is that of P.W.1 Navin Chandra Pant, who is brother of the deceased. In our opinion, even the testimony of P.W.1 Navin Chandra Pant could have been said to be sufficient to hold the accused/appellant Gopal Puri guilty of charge, provided it was corroborated from other piece of evidence on record and trustworthy. It is pertinent to mention here that another co-accused Jagdish Singh, who is acquitted by the Trial Court, was also said to be armed with PATAL. What is more important is that the recovery of PATAL (heavy sharp edged weapon) from the accused/appellant Gopal Puri, is found doubtful by the Trial Court itself. In the circumstances, neither the testimony of P.W.1 Navin Chandra Pant is corroborated from the statements of 7 other eye witnesses, nor from the recovery alleged to have been made from the appellant. The medical evidence, which indicates ante-mortem incised injuries, could have been caused by another person also, as the PATAL is shown in the hands of more than one accused. 8. There is one more important point in the present case. P.W.12 Station House Officer Harish Chandra Panda has admitted in his cross-examination that Mahesh Chandra Pant (deceased) was a history-sheeter. This indicates that it is possible that the deceased might have enmity with number of persons and the commission of murder, by others, cannot be ruled out. Also, the Trial Court did not mention, in its impugned judgment, as to with whom accused/appellant Gopal Puri had the common intention to kill the deceased. 9. For the reasons as discussed above, we are of the opinion that it cannot be said that charge of offence punishable under Section 302 read with Section 34 I.P.C. is proved beyond reasonable doubt against the accused/ appellant Gopal Puri. In our opinion he is entitled to the benefit of reasonable doubt. Therefore, this appeal deserves to be allowed. 10. Accordingly, the appeal is allowed. Impugned judgment and order dated 23.10.2008, passed by Sessions Judge, Nainital in Special Sessions Trial No.32 of 2005, so far as it relates to the conviction and sentence awarded against the accused/appellant Gopal Puri under Section 302/34 I.P.C., is hereby set-aside. He is in jail. Let a copy of this judgment be sent to the Superintendent of the Jail concerned. If the accused/appellant Gopal Puri is not 8 required to be detained in connection with other case/cases, he shall be set at liberty. Let the Lower Court’s Record be sent back. (V.K. Bist, J.) (Prafulla C. Pant, J.) 04.03.2011 NCM: