IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Government Appeal No. 1253 of 2001 (Old No. 2246 of 1993) State of U.P. ..….Appellant. Versus 1. Arun Kumar Pandey 2. Akhilanand Pandey Both sons of Kashinath Pandey R/o Village Kareethpur P.S. Rudrapur, District Nainital. …...……Respondents. Shri Harish Pujari, learned Additional Government Advocate for the appellant. Shri Rajendra Kotiyal, learned counsel for the accused/respondents. Coram:Hon’ble Prafulla C. Pant, J. Hon’ble Dharam Veer, J. Oral:- Hon’ble Prafulla C. Pant, J. This appeal, preferred under Section 378 of Code of Criminal Procedure, 1973 (herein after referred as Cr.P.C.), is directed against the judgment and order dated 24.09.1993, passed by learned IIIrd Additional Sessions Judge, Nainital, in Sessions Trial No. 148 of 1991, whereby accused/respondents Arun Kumar Pandey and Akhilanand Pandey, are acquitted of charge of offences punishable under Section 302 and 307 read with Section 34 of Indian Penal Code, 1860 (herein after referred as I.P.C.). 2. Heard learned counsel for the parties and perused the lower court record. 3. Prosecution story in brief is that Harjinder Singh (P.W. 2) is resident of Village Maniharkhera within the limits of police station Bilaspur, District Rampur. However, he had his land in Village Keeratpur, within the limits of Police Station Rudrapur, which was earlier part of District Nainital (now part of District Udham Singh Nagar). Prosecution case is that on 17.03.1991, Harjinder Singh (P.W. 2) along with his cousin Harjit Singh (P.W. 1) and his servant Kishore (deceased) had gone in a tractor trolley to Keeratpur to take AGOLA (buds of sugarcane). At about 5:30 p.m. accused/respondents- Arun Kumar Pandey and Akhilanand Pandey, came in their tractor through the field of Harjinder Singh, to which Harjinder Singh (P.W. 2), objected. On this, the two accused got enraged and threatened Harjinder Singh to see him. Soon thereafter, at 6:00 p.m., when Harjinder Singh along with his cousin Harjit Singh and servant Kishore, was returning from tractor towards his Village Maniharkhera, accused/respondents Arun Kumar Pandey and Akhilanand Pandey, came in a jeep and stopped the tractor. Apprehending danger to their life, Harjinder Singh, Harjit Singh and Kishore, attempted to jump from their tractor. But meanwhile, accused/respondent Arun Kumar Pandey with his DBBL gun, fired at Harjinder Singh and Harjit Singh but the fire hit at their servant Kishore, who fell down at the spot. Harjinder Singh and Harjit Singh ran away towards their village and came back to the spot with other villagers of their village. By then, Kishore was gasping. He was immediately taken to Government Hospital, Rudrapur, where doctors declared him dead. Thereafter, a First Information Report (Ext. A-1) was lodged by Harjinder Singh after getting it scribed through Harjit Singh, which was registered as crime No. 211 of 1991, with police station Rudrapur, against the accused Arun Kumar Pandey and Akhilanand Pandey, relating to offences punishable under Section 302 and 307 I.P.C. Necessary entry was made in the general diary at about 8:45 p.m. and investigation was taken up by Inspector Kali Charan Sharma (P.W. 7). He went to the spot and interrogated the witnesses. On the very day i.e. 17.03.1991, after taking dead body of Kishore in their possession from the hospital, inquest report (Ext. A-7) was prepared by the police. The Investigating Officer further prepared sketch of the dead body (Ext. A-8), police form No. 13 (Ext. A-9), sample seal (Ext. A-10) and letter to the Chief Medical Officer (Ext. A-11), requesting him for post mortem examination. The post mortem examination was conducted by Dr. Arvind Agarwal (P.W. 5) on 18.03.1991, who recorded the ante mortem injury of punctured wound caused by fire arm weapon and prepared autopsy report (Ext. A-5). The Medical Officer opined that cause of death of deceased was ante mortem injury, leading to heamorrhage and shock. The Investigating Officer visited the site again on the next day i.e. 18.03.1991 and prepared site plan (Ext. A-6). He also prepared recovery memo (Ext. A- 2) of shoes and other articles of the deceased found at the spot. During investigation, Inspector Kali Charan Sharma, got transferred and investigation was taken over by Ravindra Kumar Sharma (P.W. 8), who on completion of the investigation, submitted charge sheet (Ext. A-12). 4. The Magistrate, on receipt of the charge sheet, after giving necessary copies to the accused, as required under Section 207 Cr.P.C., appears to have committed the case to the Court of Sessions, for trial. Learned Sessions Judge, after hearing the parties, on 07.08.1991, framed charge of offences punishable under Sections 302 and 307 I.P.C. against accused Arun Kumar Pandey, and as against accused/respondent Akhilanand Pandey that of offences punishable under Sections 302 read with Section 34 I.P.C. and Section 307 read with Section 34 I.P.C. Both the accused pleaded not guilty and claimed to be tried. Thereafter, case appears to have been transferred to IIIrd Additional Sessions Judge, Nainital. On this prosecution, got examined P.W. 1 Harjit Singh (eye-witness and scribe of the report), P.W. 2 Harjinder Singh (eye-witness of the incident), P.W. 3 Satnam Singh (witness of the inquest report), P.W. 4 Head Constable Ram Kishan Singh (who on the basis of First Information Report- Ext. A-1, prepared check report- Ext. A-3), P.W. 5 Dr. Arvind Agarwal (who conducted post mortem examination on the dead body of Kishore), P.W. 6 Constable Rajesh Kumar (who took dead body in a sealed condition for post mortem examination), P.W. 7 Inspector Kali Charan Sharma (who investigated the crime but could complete the investigation), and P.W. 8 Ravindera Kumar Sharma (who completed the investigation). 5. The oral and documentary evidence was put to the accused, as required under Section 313 Cr.P.C. to which they alleged the same to be false. It is alleged by accused/respondents that they have been falsely implicated due to enmity. However, no evidence in defence was adduced. The trial court after hearing the parties found that charge against the accused/respondents are not proved beyond reasonable doubt and acquitted them. Aggrieved by said judgment and order dated 24.09.1993, passed by IIIrd Additional Sessions Judge, Nainital, this appeal was filed before Allahabad High Court on 20.12.1993, where it was admitted on 09.08.1999, after granting the leave to appeal. The appeal is received by this Court under Section 35 of U.P. Reorganisation Act, 2000 (Central Act No. 29 of 2000). 6. Learned counsel for the appellant/State argued that the trial court has committed grave error of law in acquitting the accused and in not believing the eye- witnesses, examined on behalf of the prosecution. We have carefully gone through the lower court record and assessed the evidence. No doubt, there are two alleged eye-witnesses of the incident, got examined on behalf of the prosecution, namely P.W. 1 Harjit Singh and P.W. 2 Harjinder Singh. As far as the death of Kishore (deceased) is concerned, it is proved from the evidence of P.W. 5 Dr. Arvind Agarwal read with autopsy report (Ext. A-5) that Kishore has died due to haemorrhage and shock, as a result of ante mortem injury. The ante mortem injury, recorded in the autopsy report, reads as under:- 1. Multiple punctured wound in a area 20cm X 16cm on front of chest mainly on right side and few on medial part of left side of chest and sternum, size varying 0.3cm x 0.3cm to 0.4cm x 0.4cm. No blackening and tattooing present. 17 pellets recovered from anterior and posterior chest wall, left and right lung and from myocardium. 7. The aforesaid medical evidence corroborates the fact that Kishore died homicidal death. Now, the important question is that whether the accused/respondents committed murder of Kishore in an attempt to commit murder of Harjinder Singh, as alleged by the prosecution. The trial court has mentioned several reasons in the impugned judgment, which according to said court creates doubt in the prosecution story. We also found following points, which create reasonable doubt, as to the manner of commission of crime, stated by two alleged eye- witnesses namely P. W. 1 Harjit Singh and P.W. 2 Harjinder Singh. Both these witnesses, state that quarrel was picked up by accused/respondent Arun Kumar Pandey against Harjinder Singh, who objected to his taking tractor through his field. Both the witnesses state that the two accused/respondents had threatened Harjinder Singh to see and after they returned, intended to fire at him. According to the two witnesses, the fire hit at Kishore, a servant of Harjinder Singh. From the perusal of the prosecution evidence, it appears that Harjinder Singh, Harjit Singh and Kishore, were travelling in their tractor trolley when accused/respondents came in a jeep and stopped the tractor. P.W. 1 Harjit Singh, in his cross examination states that the distance between the tractor and the jeep was hardly 5-6 steps. To save them, according to the witnesses, Harjinder Singh, jumped on the left side of the tractor and Kishore jumped on the right side of the tractor. Learned counsel for the accused/respondents submitted that if the intention was to kill Harjinder Singh then from such a close range, it should not have been difficult for the accused to fire on the left side of the tractor. In other words, what is being contended on behalf of the accused/respondents is that had Kishore and Harjinder jumped on the same side of the tractor only then it could have been said that while firing at Harjinder Singh, it hit his servant Kishore. As such, this creates reasonable doubt as to the manner the murder of Kishore is said to have been committed. We agree with the submission of learned counsel for the accused/respondents that the above evidence adduced by P.W. 1 Harjit Singh (eye-witness) creates a reasonable doubt as to the manner in which the crime is said to have taken place. 8. The next point advanced on behalf of accused/respondents is that since the injury as well as the autopsy report show that there must had been bleeding from the injury at the spot where Kishore remained lying for more than one hour before he was taken to the hospital. In this connection, it is further pointed out that taking no blood stained soil from the spot creates further doubt in the prosecution story that the incident had taken place, at the place where the accused/respondent Arun Kumar Pandey is said to have fired at Harjinder Singh. Statement of P.W. 5 Dr. Arvind Agarwal, in cross examination, shows that there must have been profuse bleeding. Perusal of the statement of P.W. 7 Kali Charan Sharma (Investigating Officer) does explain as to why blood was not found at the spot or why the blood stained soil was not taken from the spot. 9. The third contention which creates reasonable doubt in the prosecution story is that none of the villagers of Keeratpur, reached at the spot immediately after the incident. According to the witnesses, abadi of village was at a distance of some 100 yeards and the sound of firing shot from DBBL gun should have made them to come towards the spot to see what had happened. Statement of eye-witnesses that no one from Village Keeratpur came there, shows an unnatural conduct on the part of the villagers and this further creates reasonable doubt in the prosecution story. 10. Having reassessed the evidence on record, and after hearing the learned counsel for the State (appellant) and learned counsel for the accused/respondents, we are of the view that in this case two views were possible. The trial court could have believed the eye-witnesses, examined on behalf of the prosecution. But where there are reasons to come to the conclusion that the prosecution story appears to be suspicious and two views are possible, it is not desirable for this Court in the above circumstances, to set aside the impugned judgment, passed by the trial court, acquitting the accused/respondents. Therefore, for the reasons, as discussed above, this appeal is dismissed. (Dharam Veer, J.) (Prafulla C. Pant, J.) Dt:22.07.2008 Sweta