IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Jail Appeal No. 364/2004 Panu @ Dhanraj …. Appellant. Versus State … Respondent. Sri Prabhakar Joshi, Amicus Curiae, for the appellant. Sri Harish Pujari, learned A.G.A. for the State. Hon’ble B.C. Kandpal, ACJ. Hon’ble B.S. Verma, J. [ Delivered by Hon’ble B.C. Kandpal ACJ.(Oral Judgment)] This criminal jail appeal has been preferred against the judgment and order dated 28-10-2004, passed by Sessions Judge, Chamoli (Gopeshar) in Sessions Trial No. 20/2003, State Vs. Panu @ Dhanraj, convicting him for an offence punishable U/S 302 I.P.C. and sentencing him to undergo R.I. for Life Imprisonment. 2- The prosecution story in short is that on 22-5-2003 at about 10 A.M., Sushil Kumar (P.W.2) lodged a written report, Ext. Ka.2 at Patwari Circle Saikot with the allegation that on 21-5-2003 at about 7.15 P.M. when he returned to his tent situated on Nandprayag-Kothiyalsain Motor Marg, Mahendra Kesi, a labourer, informed him that Panu @ Dhanraj struck hammer on the head of Pitambar, due to which he is lying in an unconscious state. When the injured Pitambar was being carried to Hospital, he died in the way. On the basis of written report, chick F.I.R. Ext. Ka.5 was prepared by the Patwari of the Area and a case U/S 302 I.P.C. was registered against accused Panu @ Dhanraj in the G.D., carbon copy of which is Ext. Ka.5. The Patwari visited the place of occurrence and prepared Panchayatnama Ext. Ka.6, collected the blood-stained earth from the place of occurrence and prepared memo Ext. Ka.4. He also 2 prepared sketch of dead body Ext. Ka.7, Police Form No. 13, Ext.Ka.8, letter to CMO Ext. Ka.9 and sample seal Ext. Ka.10 and sent the dead body for post mortem. The Investigating Officer also recovered the hammer at the pointing out of the accused and prepared memo Ext. Ka.13. He also prepared the site plan of the place of the occurrence Ext. Ka. 11 and after completing the investigation, submitted charge sheet Ext. Ka.14 against the accused. 3- Dr. R.K. Sundriyal, Medical Officer, District Hospital, Gopeshwar, conducted the post mortem on the dead body of the deceased on 23.5.2003 at 10.30 A.M. and found that rigor mortis was passed away in upper limbs and was passing away in lower limbs. He has found the following anti-mortem injuries on the dead body of the deceased Pitambar- 1- Laceration on left side of forehead inverted ‘L’ shaped, starting just above lateral end of left eye brow, 12Cm x 2Cm and 10Cm deep with fracture of underlying frontal bone, brain deep. Edges were irregular, gaping with crusted blood around it and at margins. 2- Laceration over left side of jaw, 2Cm x2Cm bone deep with fracture underlying left of ramus and mandible, 4cm below and to the left angle of mouth with irregular edges and crusting of blood over it. 3- Swelling of upper and lower eyelids, left eye (black ) and eyes were closed. 4- On internal examination the doctor found depressed fracture of left frontal bone, beneath injury no.1, 6cm x 4cm. Membranes were ruptured beneath injury no.1. Laceration of brain matter beneath injury no.1, 8cm deep x 4cm width x 6 cm length. In the 3 opinion of the doctor the cause of death was hemorrhage and shock as a result of anti-mortem head injury. The Medical Officer prepared post mortem report Ext. Ka.1. 5- The Chief Judicial Magistrate Chamoli, vide his order dated 23-8-2003, committed the case to the court of Sessions Judge Chamoli to face the trial by the accused U/S 302 I.P.C. 6- On 24-9-2003, the Sessions Judge Chamoli, framed charge U/S 302 I.P.C. against the accused, who pleaded not guilty and claimed his trial. 7- The prosecution in order to prove his case, examined six witnesses, of which, P.W.1 is Dr. R.K. Sundariyal, who conducted post mortem on the dead body of the deceased, P.W.2, Sushil, who has lodged the F.I.R. Ext. Ka.2 and P.W.3, Dalip Lal, P.W.4, Anusuya and P.W.5, Padam Singh are the witnesses of facts, whereas P.W.6 Ashok Nautiyal is the Investigating Officer. 8- The accused in his statement U/S 313 Cr.P.C. denied the prosecution case and has alleged that the contractor has falsely implicated in the case. 9- The learned Sessions Judge after considering the entire evidence on record and hearing learned counsel for the parties convicted the accused for an offence U/S 302 I.P.C. and sentenced him to undergo R.I. for Life Imprisonment. 4 10- Feeling aggrieved by the aforesaid judgment and order the appellant has preferred this criminal jail appeal before this Court. 11- Heard Sri Prabhakar Joshi, Amicus Curiae for the appellant and Sri Harish Pujari, learned A.G.A. for the State and perused the record. 12- The motive which has been indicated by the prosecution against the accused for committing the murder of deceased Pitambar appears to be very weak, as the prosecution story is that the rice was not properly prepared by the deceased Pitambar, therefore, on this issue there was a quarrel between the deceased Pitambar and the accused Panu @ Dhanraj. This type of dispute is not going to have the motive with the accused to commit the heinous crime like murder. The prosecution case is of direct evidence. Therefore, the motive is not going to play important role in this case. However, we proceed further to discuss the matter on the basis of the evidence available on record. 13- The first information report reveals that one Sushil Kumar informed the circle Patwari on 22-5-2003 that Mate Mahendra Singh informed him that Panu @ Dhanraj assaulted Pitambar S/o Murli Singh with a hammer with the result Pitambar fell unconscious and when Pitambar was taken to hospital, he died in the way. According to Sushil the incident took place on 21-5-2003 at about 5.30 P.M. Sushil was produced before the trial court as P.W.2. He disclosed in the examination-in-chief that three other persons viz. Jugat Ram, Pitambar and Suresh had been living along with Panu @ Dhanraj and when he inquired from these persons with regard to the incident they told him that there was some dispute on 5 the issue of cooking food in the morning between Panu @ Dhanraj and Pitambar. This witness has further deposed that when he went in the tent at about 7.30 P.M., he saw that Pitambar was writhing with pain on account of injury sustained by him on the head. He has also stated that Mahendra and other persons had apprehended Panu and then Mahendra told him that Panu Ram @ Dhanraj had assaulted Pitambar with a hammer. Thereafter, he arranged the vehicle and took Panu for Chamoli Police Station. He also took the injured Pitambar for Chamoli Hospital. Panu was handed over to the custody of Police Chamoli while Pitambar succumbed to injury in the way. 14- P.W.3, Dalip Lal is another eye witness. He has stated that on 21.5.2003 in the evening there was some hue and cry in the tent of Panu and Pitambar and when he reached at the spot he saw that Pitambar had injury and there was bleeding from his head and mouth. This witness has stated that accused Panu was apprehended by the people assembled over there. Again P.W.4, Anusuya, who had been working as a labourer at the place of occurrence, has deposed that when he reached in his tent in the evening he saw the injury of Pitambar and this injury was caused by accused Panu @ Dhanraj who was apprehended by other labourers at the spot. This witness in his cross-examination has stated that he did not see Panu assaulting Pitambar and he was telling the hearsay. 15- P.W.5, Padam Singh, is the another witness produced by the prosecution who has stated that on 21- 5-2003, there was some dispute between Pitambar and Panu on the issue of cooking the food and in the evening at about 6 - 6.30 he heard the shrieks and cries from the tent of Pitambar and when he reached over there, then he 6 saw that the accused had given 2-3 blows with the hammer at Pitambar and when the accused/appellant saw this witness he fled away from the scene of the occurrence. Therefore, it is quite clear that the prosecution has tried to establish its case against the accused/appellant that it was accused/appellant who assaulted Pitambar with a hammer on his head on account of which the death of Pitambar was caused. The prosecution has also tried to show that the accused was apprehended at the spot by the other witnesses present over there. The prosecution by producing P.W.2, Sushil has also tried to establish that the accused after having apprehended at the spot was given in the custody of the police at Chamoli. As far as the weapon of assault is concerned, it is also the case of the prosecution witnesses that the weapon of assault was also found at the scene of the occurrence when the witnesses assembled at the place of the occurrence immediately after the incident. 16- It is now to be seen as to whether the eye witness account produced by the prosecution appears to be reasonable and trustworthy and if so, upto what extent and as to whether the eyewitness account finds support with the other evidence produced by the prosecution available on record or not?. 17- As far as the arrest of the accused at the place of occurrence is concerned, that appears to be quite doubtful for the reasons that the eye witness P.W.2, Sushil has stated that the accused was given in the custody of Chamoli Police on the same day after having been apprehended from the place of the occurrence, but as per the investigating officer this fact gets strong jolt. As per the investigating officer P.W.6, Ashok Nautiyal, the 7 accused/appellant was arrested on 23-5-2003 from the different place. This witness has nowhere stated that he took the custody of accused from the custody of Chamoli police on 23.5.2003. It is thus clear that when the accused was apprehended from the spot on 21.5.2003 and was given in the custody of Chamoli police, then how the accused could be arrested by the investigating officer from different place on 23-5-2003. Therefore, the investigation in this case also appears to be doubtful and this serious contradiction and omission by the investigating officer during investigation has given a strong jolt on the prosecution case, making the genesis of the prosecution case absolutely doubtful. 18- The eyewitness accounts are also not very much clear with regard to the fact that the accused Panu @ Dhanraj assaulted the deceased Pitambar with hammer and the hammer was also recovered at the scene of the occurrence at the pointing out of the accused on 23.5.2003, i.e. after the arrest of the accused, two days later of the actual incident. The inquest report prepared in this case indicates that the hammer was also found with the dead body at the place of the occurrence. The remark in the inquest report reads as follows:- ^^ lEifr rFkk mu gfFk;kjksa dh lwph tks 'ko esa ;k mlds ikl feys gSa vkSj mlds O;oLFkkiu dh fof/k& gFkkSMk rFkk [kwu vkywnk diMsA^^ 19- When the investigating officer was cross-examined on this issue, he has given an explanation that the hammer was not found near the dead body, but entry of the hammer in the inquest report has been made only for the purpose that the death was caused with the hammer. This explanation does not appear convincing in any manner and it appears that the investigating officer has tried to fill up the lacuna by giving this type of lame 8 explanation, which is not digestible in any manner. Thus we are of the view that the investigation in this case is highly improper and has not been conducted in a correct perspective. The investigating officer has left so many lacunas in the prosecution case, thereby giving a free hand to the defence, due to which the accused/appellant in this case becomes entitled for the extension of benefit of doubt. 20- Further if we look to the post mortem report of the deceased Pitambar, we find that the doctor has found a laceration of left side forehead inverted ‘L’ shaped above the left eyebrow with fracture of underlying frontal bone. The injury was brain deep. The doctor found another injury laceration over left side of jaw, bone deep with fracture of underlying bone. The doctor also found swelling of upper and lower eyelids. In internal damage the doctor found fracture of left Ramus and mandible. The doctor opined that the death was caused as a result of haemorrhage and on account of anti-mortem injury. When the doctor was cross-examined he stated that this injury could have been caused on account of the fall of the stone on the head of the deceased. He has also replied that when a person falls on the rocky stones, even then this injury could have been caused. This is the prosecution case that the deceased was working on the road side and was doing the job of breaking of stones. Therefore this possibility cannot be ruled out that the deceased might have fallen on some rocks and on account of the same he must have sustained the injury on his head. As we have already stated that eye witness account in this case is not much clear and the prosecution case could not be proved beyond reasonable doubt that in fact it was accused Panu @ Dhanraj who assaulted the deceased with a hammer on his head on 9 account of which he sustained injuries and subsequently died. The investigation part of this case is also making the genesis of the prosecution case absolutely doubtful and on the basis of the evidence available on record, we are left with no other option except to extend the benefit of doubt to the accused/appellant. 21- In the result the appeal is liable to be allowed. 22- Accordingly, the appeal is allowed. The impugned judgment and order, thereby convicting the accused/appellant U/S 302 I.P.C. and sentencing him to undergo Life Imprisonment, is set aside. The accused/appellant is extended the benefit of doubt for his acquittal for the offence with which he was charged by the trial court. 23- The accused/appellant is in jail. He shall be released forthwith, if not wanted in any other connection. 24- Let the record be remitted back to the trial court forthwith for compliance. (B.S. Verma, J.) ( B.C. Kandpal, ACJ) 10-08-2009 ISB 10