IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Government Appeal No. 1888 of 2001 Old Government Appeal No. 373 of 1999 Dated of Decision: 22.03.2010 State …Appellant Versus Trilok Singh and others …Respondents CORAM:- HON’BLE MR. JUSTICE B.C. KANDPAL HON’BLE MRS. JUSTICE NIRMAL YADAV Present: Mr. S.S. Adhikari, learned A.G.A for the State/appellant. Mr. Amit Kapri, Advocate holding brief of Mrs. Pushpa Joshi, learned counsel for the respondents Nirmal Yadav, J. The State has filed the present appeal challenging the judgment and order dated 13.11.1998 passed by the District & Sessions Judge, Nainital in Sessions Trial No. 67 of 1995 acquitting the respondents (for short the accused) of the charges framed against them. Accused Trilok Singh was made to face trial under Section 302 of the I.P.C. while Ranjeet Singh and Madho Singh were tried under Section 302 read with Section 34 of the I.P.C. with the allegation that they had committed the murder of Meghshyam Singh Bohra, the owner of Ranjana Hotel, Mall Road Almora. The process of criminal law was set in motion at the instance of Piyush Chandra Mall (PW-1) by submitting written application Ex. Ka-1. According to him on 11.08.1994 he alongwith Rajendra Singh Bisht and Meghshyam Singh Bohra (deceased) were going from Haldwani to Almora in a jeep- bearing no. UP 01/0145. At about 9:30 p.m. when they reached near Kakrighat, due to breakdown of jeep, balance of the jeep got disturbed and it struck against the rock. Resultantly the tyre of the jeep got burst and its rim also got damaged; therefore, 2 they could not proceed further. All the three occupants of the jeep got down to change the stepney, however, they found that stepney had fallen down somewhere on the way. Meghshyam Singh went in search of the stepney towards Khairana while complainant Rajendra Singh went towards the village to arrange for some source of light. They arranged for a burning torch (Mashal) and also went towards Khairana side. When they reached near the shop of accused Trilok Singh, who was running a shop near Kakrighat and found that accused Trilok Singh, Ranjeet Singh and Madho Singh were assaulting Meghshyam Singh. Ranjeet Singh and Madho Singh had caught hold of Meghshyam Singh while Trilok Singh was causing injury with a sharp edged weapon on his person. Out of fear both Rajendra Singh Bisht and Piyush Chandra Mall did not go near them and ran away towards Almora. Thereafter they also left the spot by taking lift in a truck. Rajendra Singh went to inform the family members of Meghshyam Singh while Piyush Chandra Mall went to Almora to inform the police at Kotwali Almora. It is stated that he could not give correct facts at that time as he was perplexed and was under mental tension. The trial court has referred to the said statement of Piyush Chandra Mall which he had made in Kotwali Almora at about 2:30 a.m. which is reproduced below :- “Myself and Rajendra Singh had gone to see Meghshyam Singh and found that he was lying on the road about 200-250 years towards Haldwani and some persons were standing near him whom I did not know. Thereafter myself and Rajendra Singh Bisht immediately came back towards Almora. I do not know as to how he had received injuries and how many injuries were received by him.” F.I.R. (Ex. Ka-3A) was registered on 12.08.1994 in police station Bhawali, which was at a distance of 25 kilometers from the place of occurrence. The investigation was conducted 3 by Sub Inspector R.P. Purohit (PW –9). He inspected the spot on 12.08.1994 and took into possession blood stained earth as well as simple earth from the place of occurrence after making them into separate sealed parcel. He also took into possession shoes, watch, lighter, keys, button of shirt and one cigarette packet belonging to the deceased. He prepared the Pachnama in the presence of the witnesses. The dead body of the deceased was found to be lying on his back on Almora–Bareilly Road. Right leg was found folded from the knee. Both hands were found folded from the elbow. Fingers were also folded. His face and eyes were closed. The blood was lying under neath his head. About twelve paces from the place of occurrence and in front of the shop of Trilok Singh also, blood was found lying. On inspection of the dead body, several injuries on the face, chest, hands and legs by the Investigating Officer. All those injuries appeared to be caused by some sharp edged weapon. He also prepared the site plan of the place of occurrence. One Khukri was got recovered by Trilok Singh, from his shop, which was taken into possession vide Ex. Ka-12 and site plan of place of recovery also prepared. After completion of investigation, final report under Section 173 Cr.P.C. was put in the Court, for trial. The accused- appellants were charge sheeted for commission of crime under Section 302/34 of the I.P.C. to which they pleaded not guilty and claimed trial. The prosecution in order to prove its case produced as many as twelve witnesses. On conclusion of prosecution evidence, statements of the appellants were recorded under Section 313 Cr.P.C. They denied all the allegations of prosecution and claimed innocence and false implication. They led no evidence in defence. 4 The trial court on appraisal of evidence found the accused innocent and acquitted them, hence, the present appeal. We have heard Mr. S.S. Adhikari, learned A.G.A. for the State and Mr. Amit Kapri, Advocate holding brief of Mrs. Pushpa Joshi, learned counsel for the respondents and perused the material available on record. Learned A.G.A. contended that the judgment passed by the trial court is perverse as the trial court has failed to appreciate evidence led by the prosecution in its true perspective and too much importance has been given to the minor technicalities. The trial court has disbelieved the presence of Durga Singh (PW-2). The trial court has also disbelieved the testimony of Piyush Chandra Mall, the eyewitness merely on the ground that his conduct was unnatural as he left the place of occurrence after leaving the family members of the deceased at the spot and that he did not disclose the name of assailants to the Investigating Officer. He reported the matter in police station Bhawali only at about 6:30 p.m. on 12.08.1994. Learned A.G.A. further argued that the trial court has given undue importance to a letter, which is alleged to have been written by Rajendra Singh who was also the eyewitness alongwith Piyush Chandra Mall. Said Rajendra Singh is stated to have committed suicide and on the basis of said letter, the trial court has erred in coming to the conclusion that the family member of the deceased were having some grudge and were angry with Rajendra Singh and Piyush Chandra Mall. The trial court also erred in disbelieving the recovery of Khukari at the instance of accused Trilok Singh. Learned A.G.A. therefore, prayed that the judgment which is under challenge be set aside 5 and the appeal be accepted convicting the accused for commission of crime for which they were charged. On the other hand learned counsel for the respondents vehemently opposed the argument raised by the learned A.G.A. It is argued that the trial court has rightly appreciated the evidence on record. He pointed out that Piyush Chandra Mall (PW-1) did not disclose the name of the assailants when he reported the matter in Kotwali Almora. He did not disclose the name of the assailant nor the manner in which the incident took place even to the Investigating Officer who conducted the Panchnama at the spot. It is argued that there is not even an iota of evidence against the accused. He supported the judgement passed by the trial court and submitted that the entire evidence shows that occurrence did not take place in the manner as depicted by the prosecution. Having heard learned counsel for the parties; we feel that the present appeal deserves to be dismissed. The prosecution case mainly rests on the testimony of Piyush Chandra Mall (PW-1) and Durga Singh (PW-2). Piyush Chandra Mall (PW-1) reported the matter in Kotwali Almora at about 2:30 a.m. on 12.08.1994 and the occurrence took place at about 9:30/10:00 a.m. on 11.08.1994 wherein he did not disclose as to how the occurrence took place and who were the assailants. Whereas in his written application which was submitted by him in police station Bhawali at about 6:30 p.m. on 12.08.1994 giving the detailed manner of occurrence inculpating all the three accused persons. The explanation given by him about the earlier report that he could not give the correct information in Kotwali Almora as he was perplexed and was under mental tension appears to be unnatural and an after thought. Even if he was perplexed he could at least give the name of assailants and basic facts of the occurrence. His conduct also appears to be 6 quite unnatural, when he says that he reached the place of occurrence alongwith family members of the deceased at 4:30 a.m. and thereafter left the place immediately. He again came back to the place of occurrence at 5:00 p.m. Another circumstance, which creates doubt in the prosecution case is that as per the statement of Piyush Chandra Mall there was none at the place of occurrence except himself and Rajendra Singh whereas Durga Singh (PW-2) has been produced by the prosecution as eyewitness. Thus, the trial court has rightly disbelieved the testimony of this witness. Testimony of Durga Singh (PW-2) is also full of doubts. According to him he was living in the house of Saruli Devi whereas it has come in the evidence that in the house of Saruli Devi only three family members i.e. Saruli Devi, her daughter-in-law and granddaughter were living. Statement of Durga Singh was recorded one and a half month after the occurrence. It appears that Durga Singh is a procured witness. Thus the trial court has rightly rejected the prosecution version that Durga Singh was an eyewitness of the occurrence. Mr. B.P.S. Rawat, the Investigating Officer (PW-12) stated that he had come to know from secret informer that Durga Singh was also present in the place of occurrence and therefore he recorded his statement. Durga Singh himself never reported about the incident to any one. A suggestion has been given that Durga Singh was working in the estate of Sarva Jeet Singh, father of deceased. It appears that Durga Singh has been introduced as eyewitness later on after due consultation and confabulation. The recovery in the present case also has not been proved. Both the witnesses of recovery Basant Lal Sah and Mohan Singh have turned hostile. Moreover Basant Lal Sah is running a shop in front of police station Khairana whereas place 7 of recovery at a distance of 8-10 kilometers from his shop. He categorically stated that his signature were obtained by the Investigating Officer on plain papers 2-3 days after the occurrence. Mohan Singh also denied that any recovery was made in his presence. The manner in which the alleged recovery has been made also appears to be quite unnatural. From the above discussed evidence, we are of the opinion that the prosecution has failed to prove the manner of the occurrence and the involvement of the accused persons in the occurrence. Piyush Chandra Mall (PW-1) is the only alleged eyewitness of the occurrence but his conduct in not reporting the names of the accused and the manner of the occurrence in the first F.I.R. creates doubt in the prosecution case. In these circumstances the recording of F.I.R. (Ex. Ka-3A) becomes suspicious. Before us the learned A.G.A. has failed to pinpoint any misreading of the evidence on the part of the trial court, which may necessitate interference by us in the judgment of acquittal. We feel that no other view, than the one, as has been taken by the trial court was possible on the basis of evidence brought on record. The testimony of the alleged eyewitness does not inspire confidence and the identity of the accused as well as recovery of the weapon has also been proved to be doubtful. The prosecution has thus failed to prove its case. Accordingly, we find no merit in the government appeal and the same is dismissed. (Nirmal Yadav, J.) (B.C. Kandpal, J.) VKG 22.03.2010