IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Government Appeal No. 2075 of 2001 State of Uttaranachal (Uttarakhand) ….Appellant Versus 1. Rajesh S/o Tilka Balmika 2. Rakesh S/o Kishan Lal Balmika ….. Respondents. Present : Mr. Amit Bhatt, Assistant Government Advocate for the Appellant. Mr. Sandeep Tandon & Mr. Lokendra Dobhal, Advocates for the respondents. Coram: Hon’ble Prafulla C. Pant, J. Hon’ble Sudhanshu Dhulia, J. Prafulla C. Pant, J. (Oral) (1) This appeal, preferred under Section 378 of Code of Criminal Procedure, 1973 (for short Cr.P.C.), is directed against the judgment and order dated 10.05.2001(wrongly mentioned as 18.5.2001 in the appeal), passed by Additional Sessions Judge/ Fast Track Court, Dehradun in Sessions Trial No. 9 of 1994, whereby the said court has acquitted accused- respondents Rajesh and Rakesh from the charge of offence punishable under Section 302 read with Section 34 of Indian Penal Code, 1860 (for short IPC). (2) Heard learned counsel for the parties, and perused the lower court record. (3) Prosecution story, in brief, is that Mukesh, one of the co-accused (whose case was separated by the trial court as he absconded during trial) used to molest Km. Anita (PW1), and accused Rajesh used to molest Km. Kusum (PW2). Rishipal (deceased) objected to the conduct of Mukesh and Rajesh. On 20.5.1993 at about 2 9.15 PM near Saw mill of one Sardar Amrik Singh, in cantonment Board, Chakrata, PW3 Mohkem and PW4 Karan Pal heard shouts “BACHAO BACHAO” (help-help), on which they rushed to the spot and saw accused Mukesh inflicting knife blow on Rishipal, and accused- respondents Rajesh and Rakesh had caught hold of Rishipal. On seeing two witnesses, the three accused ran away. Injured Rishipal was taken to the government hospital, where PW9 Dr. Alok Kumar Sinha examined injuries on person of Rishipal at 10.30 PM (28.5.1993). Within ten minutes of reaching the hospital, the injured succumbed to the injuries. Meanwhile, PW3 Mohkam went to the Police Station and gave First Information Report (Ext. A1), on the basis of which Crime No. 7 of 1993 was registered, relating to offence punishable under Section 307 IPC against the three accused namely, Mukesh, Rakesh and Rajesh. Investigation was taken up by PW6 Sub-Inspector Suraj Bhan. As the injured had died of the injuries, the case was converted to one punishable under Section 302 IPC. Police went to the hospital, took dead body of deceased in their possession, and prepared inquest report (Ext. A3) on the next day morning i.e. 29.5.1993 at 8.00 AM. The post mortem examination was conducted by PW7 Dr. Kuldeep Datta on 30.5.1993. He recorded incised wound as ante mortem injury, and opined in the Autopsy Report (Ext. A7) that the deceased had died of shock and haemorrhage due to the ante mortem injury. After interrogating witnesses, inspecting spot, arresting the accused and recovery of knife, the Investigating Officer submitted charge-sheet against the accused-respondents Rajesh, Rakesh and Mukesh, for their trial in respect of offence punishable under Section 302 read with 34 IPC. 3 (4) The Magistrate, on receive of charge-sheet, appears to have committed the case to the court of sessions for trial, after giving necessary copies to the accused. Learned Additional Sessions Judge, Dehradun on 24.10.1994,, after hearing the parties framed charge of offence punishable under Section 302 IPC against accused Mukesh and one punishable under Section 302 read with Section 34 IPC, against the other two accused Rajesh and Rakesh (present respondents). All the three pleaded not guilty, and claimed to be tries. On this, prosecution got examined PW1 Km. Anita (declared hostile), PW2 Km. Kusum (declared hostile), PW3 Mohkam (informant and eye-witness), PW4 Karan Pal (another eye-witness), PW5 Nakali Ram (witness of inquest report), PW6 Sub-Inspector Suraj Bhan, who investigated the crime, PW7 Dr. Kuldeep Datta, who conducted post mortem examination, PW8 Babu Ram Nautiyal, Pharmacist and PW9 Dr. Alok Kumar Sinha, Medical Officer, who examined injury on the person of Rishipal, at the time he was brought in the hospital. (5) The oral and documentary evidence was put to the accused under Section 313 of Cr.P.C. In reply to which they alleged the same to be false. However, no evidence, in defence was adduced. During the examination of witnesses, accused Mukesh absconded and his case was separated by the trial court, and the trial proceeded as against the respondents Rajesh and Rakesh. The trial court after hearing the parties found that the prosecution has failed to prove charge of offence punishable under Section 302 read with Section 34 IPC beyond reasonable doubt against accused-respondents Rajesh and Rakesh. Accordingly, the two were acquitted of charge of offence of commission of murder of Rishipal with common 4 intention (with Mukesh). Aggrieved by said judgment and order dated 10.5.2001, passed by learned Additional Sessions Judge/ Fast Track Court, Dehradun in sessions trial no. 9 of 1994, this appeal was filed by the State, on which the leave was granted on 11.6.2002, and appeal was admitted. (6) Before further discussion, we think it just and proper to mention the ante mortem injury found by PW7 Dr. Kuldeep Datta on 30.5.1993 at 3.30 PM, at the time of post mortem examination on the dead body of Rishipal. Ante mortem injury is reproduced below from Autopsy Report:- “(i) incised wound 2cm X 1.5 cm pleural cavity deep 3.5 cm below left clavicle” (7) On internal examination, the aforesaid Medical Officer found that the thorax was lacerated on the left side. There was punctured wound inside the valves, and pleural cavity was full of blood. PW7 Kuldeep Datta opined in the Autopsy Report that the deceased had died of shock and haemorrhage as a result of ante mortem injury suffered by him. He further stated that the deceased could have died about two days before the post mortem examination. He further told that ante mortem injury could have been caused to the deceased on 28.5.1993 at about 10.00 PM by sharp edged object like knife. (8) The statement of PW7 Dr. Kuldeep Datta gets further corroboration from the statement of PW9 Dr. Alok Kumar Sinha, who recorded the injury found on the person of Rishipal, at the time he was brought to the hospital at 5 Chakrata. This witness proved the Injury Report (Ext. A8), in which following injury is mentioned:- “2cm X 1 cm incised wound below left clavicle on the upper part of left side of chest (3.5cm lateral from medial and of left clavicle) blood oozing” (9) The Medical Injury Report (Ext. A8) prepared by PW9 Dr. Alok Kumar Sinha discloses that soon after the injuries were examined, the patient expired at 10.40 PM (20.5.1993). The above mentioned injury correspondents to the ante mortem injury already quoted earlier. From the medical evidence on record, as discussed above, it is fully established that Rishipal died of homicidal death. Now we have to examine whether the trial court has erred in law in holding that prosecution has failed to establish beyond reasonable doubt that accused appellant Rajesh and Rakesh with common intention, (with Mukesh) committed murder of Rishipal. (10) Both PW1 Kumari Anita, aged 18 years, and PW2 Km. Kusum aged 18 years did not support prosecution that they were molested by Rajesh or Mukesh. They were got declared hostile by the prosecution. However, the two girls are not the eye-witnesses. They have been produced only to show the motive on the part of the accused. None of the two witnesses have supported the prosecution story of the point of the motive. But even without bringing motive on record, prosecution has a right to successfully prove the charge of offence punishable under Section 302 read with Section 34 IPC against two accused by making eye-witnesses examined before the trial court. 6 (11) There are two eye-witnesses examined on behalf of the prosecution namely, PW3 Mohkam (informant) and PW4 Karan Pal. As far as PW4 Karan Pal is concerned though he has stated that accused Mukesh (since absconded) inflicted knife blow on the person of Rishipal, he did not specify any role of the accused respondents Rajesh and Rakesh. As such, the evidence of this eye- witness PW4 Karan Pal is of no help to the prosecution. He has simply stated that the two accused Rajesh and Rakesh were also present at the place of incident. Now only statement left on record, to examine the role of the present accused respondents Rajesh and Rakesh is that of PW3 Mohkam. In the examination in chief, this witness has fully supported the prosecution story that on 28.5.1993 at about 9.15 PM he heard noise and shouts BACHAO! BACHAO!! (“help-help”) and rushed to the place of incident where he saw accused Mukesh inflicting knife blow on person of Rishipal. This witness has further stated that accused respondents Rajesh and Rakesh had caught hands of Rishipal to facilitate Mukesh to commit murder. (12) We have carefully gone through the statement of PW3 Mohkam. In Para 26 of his statement (cross- examination) he has stated that by the time he reached at the spot, Rishipal was already lying on the ground and three the accused had gone. This creates doubt in his testimony, given in his examination in chief specifying role of accused respondents Rajesh and Rakesh. Not only this, the statement of this witness that Rakesh had caught hand of Rishipal to facilitate Mukesh to commit crime is unconvincing for the reason that in para 23 of his examination (cross-examination), he states that Rishipal had objected Mukesh molesting Anita. It has 7 come on the record that Rishipal was uncle of Anita. This witness (PW3) admits in the same para that accused Rakesh is brother of Anita. In that situation, it is hard to believe that Rakesh would side with Mukesh to get killed Rishipal. (13) It is settled principle of law that where two views are possible from the evidence on record, and the trial court has taken a view in acquitting the accused, the High Court should not interfere with the order of acquittal recorded by the trial court. Impugned order cannot be said to be perverse or not based on evidence on record. In our considered opinion, the trial court has taken a view after considering the evidence on record, and concluded that it cannot be said that prosecution has successfully proved the charge of offence punishable under Section 302 read with Section 34 IPC, as against the accused- respondents Rajesh and Rakesh. Having considered the submissions of learned counsel for the appellant/State and that of learned counsel for the respondents, we concur with the view taken by the trial court. (15) For the reasons as discussed above, in our opinion, this appeal has no force, and the same is liable to be dismissed. (16) The appeal is dismissed. Let lower court record be sent back. (Sudhanshu Dhulia, J.) (Prafulla C. Pant, J.) 20.6.2011 Kuldeep