IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 1483 of 2001 (Old No. 2098 of 1995) 1. Raju alias Raj Kumar S/o Ram Prakash Chugh Bhalla Road Below Kotwali Haridwar. 2. Kishore S/o Ghanshyam R/o Brahmpuri Haridwar. 3. Dhara S/o Sher Singh R/o Brahmpuri Haridwar. 4. Hukam S/o Mohan Lal R/o Mohalla Kotarwan, Jwalapur District Haridwar. …………Appellants Versus State ………Respondent Mr. Vivek Shukla with Mr. Bhuwnesh Joshi, Advocates, for the appellants. Mr. H.C. Pujari, A.G.A., for the respondent. Hon’ble Prafulla C. Pant, J. Hon’ble B.S. Verma, J. [Oral- Hon’ble Prafulla C. Pant, J.] This appeal, preferred under Section 374 of Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), is directed against the judgment and order dated 12.12.1995, passed by learned First Additional Sessions Judge, Haridwar, in Sessions Trial No. 275 of 1991, whereby 2 accused / appellants, namely, Raju alias Raj Kumar, Kishore, Dhara and Hukam have been convicted under Sections 364, 302/34 and 201 of Indian Penal Code, 1860 (hereinafter referred as I.P.C.). Each one of the convicts has been sentenced to imprisonment for life under Section 364 I.P.C, imprisonment for life under Section 302/34 I.P.C. and rigorous imprisonment for a period of three years under Section 201 I.P.C.. (2) Heard learned counsel for the parties and perused the Lower Court Record. (3) Prosecution story in brief is that Ranjeet (deceased) was elder brother of Nurey Bahadur (P.W.1), the complainant. On 25.02.1991 at about 10.45 p.m., Nurey Bahadur (P.W.1) was coming back with his brother Ranjeet (deceased) from Dehradun to Haridwar in Mussoorie Express, as the deceased had gone to Dehradun for treatment of some boils with which he was suffering. On the way, at Raiwala, Daddu (P.W.3) joined them in the journey. After getting down at Railway Station Haridwar, the three proceeded for their home. When they reached near Sindh Dugdh Bhandar, accused / appellant Kishore called Ranjeet and offered him a cup of tea in the tea stall of Ashok (P.W.2). In front of said shop a Car bearing Registration No. UP07-3797 was standing. After 3 accused / appellants Hukam, Raju, Dhara, Kishore, complainant, deceased and Daddu had tea in the tea stall of Ashok, the four accused / appellants dragged Ranjeet and took him in the Car standing in front of the tea stall. The motive behind commission of crime is said to be that about some three months back after a quarrel with Hukam, Ranjeet was given a threat that he would be killed. After the incident of abduction, Nurey Bahadur (P.W.1) got scribed First Information Report (Ext.A-1) through one Naresh and lodged the same with Police Station, Kotwali Haridwar, at about 11.15 p.m. on the very day i.e. 25.02.1991. On the basis of said report check report (Ext.A-20) was got prepared and Crime No. 115 of 1991 was registered against the accused / appellants, namely, Hukam, Kishore, Dhara and Raju, in respect of offence punishable under Section 364 I.P.C.. The investigation was conducted by Station House Officer Narendra Singh (P.W.8). On the next day i.e. 26.02.1991 accused / appellant Raju alias Raj Kumar was arrested and on his pointing out dead body of Ranjeet was recovered near a ‘BANDH’ (Dam) and inquest report (Ext.A-11) was prepared by the Police after taking the dead body of Ranjeet in their possession. The Police also got prepared form No. 13 (Ext.A-12), sketch of the dead body (Ext.A-13), letter to Chief Medical Officer (Ext.A-15) requesting for postmortem examination 4 of the dead body and other necessary papers. The dead body was sent in a sealed condition for postmortem examination. P.W.4 Dr. R.K. Pandey, Medical Officer, conducted postmortem examination on 27.02.1991 at 10.30 a.m. and prepared autopsy report (Ext.A-2). He recorded as many as 22 ante mortem injuries on the dead body of Ranjeet, out of which 15 were incised wounds. The Medical Officer opined that deceased had died of shock and haemorrhage due to ante mortem injuries. Thereafter, other accused / appellants were also arrested by the Police. When the dead body of deceased was recovered, there were some hairs in the hands of the deceased. After arrest of the accused / appellants Raju, Dhara and Kishore, their hairs were got cut through a barber for sample and memorandum Ext.A-3, Ext.A-4 and Ext.A-5 were prepared. However, there is no report of forensic expert whether the hairs recovered from the deceased were got examined and tallied with that of the accused or not. After completion of investigation the Police submitted charge sheet (Ext.A-25) against all the accused / appellants Raju alias Raj Kumar, Kishore, Dhara and Hukam for their trial in respect of offences punishable under Sections 364, 302 and 201 I.P.C. (4) The Chief Judicial Magistrate, on receipt of the charge sheet, after giving necessary copies to 5 the accused, as required under Section 207 Cr.P.C., appears to have committed the case to the court of sessions for trial. Learned Additional Sessions Judge, Haridwar, to whom the case was transferred for trial, on 17.12.1991 after hearing the parties, framed charge of offences punishable under Sections 364/34, 302/34 and 201/34 I.P.C. against all the accused namely, Raju, Dhara, Kishore and Hukam. The accused denied all the charges and pleaded not guilty. On this, prosecution got examined P.W.1 Nurey Bahadur, complainant; P.W.2 Ashok (declared hostile); P.W.3 Daddu (declared hostile); P.W.4 Dr. R.K. Pandey, who conducted postmortem examination; P.W.5 Ashok Kumar, in whose presence inquest report was prepared (declared hostile); P.W.6 Constable Raj Pal Singh; P.W.7 Sub Inspector Sardar Singh; and P.W.8 Station House Officer Narendra Singh, who investigated the crime. The oral and documentary evidence was put to the accused under Section 313 Cr.P.C., in reply to which they alleged that the prosecution evidence is false. However, no evidence in defence was adduced by the accused. Learned trial court after hearing the parties found the accused, namely, Raju alias Raj Kumar, Kishore, Dhara and Hukam guilty of charge of offences punishable under Sections 364, 302/34 and 201 I.P.C.. After hearing them on sentence each of the convicts is sentenced to 6 imprisonment for life under Section 364 I.P.C., imprisonment for life under Section 302/34 I.P.C., and rigorous imprisonment for a period of three years under Section 201 I.P.C.. Aggrieved by said judgment and order dated 12.12.1995, passed by learned First Additional Sessions Judge, Haridwar, in Sessions Trial No. 275 of 1991, this appeal was filed by the convicts before Allahabad High Court on 18.12.1995, where it was admitted on 19.12.1995. The appeal is received by this Court under Section 35 of U.P. Reorganization Act, 2000 (Central Act 29 of 2000), for its disposal. (5) Before further discussions, we think it just and proper to mention the ante mortem injuries found on the person of the deceased by P.W.4 Dr. R.K. Pandey, who conducted postmortem examination on the dead body of Ranjeet Bahadur and prepared autopsy report (Ext.A-2). The ante mortem injuries are being reproduced below: - (i) Incised wound 2cm x 0.7cm x chest cavity deep over left side chest upper part. 6cm above left nipple at 11’O Clock position, vertically placed, tailed downwards. 7 (ii) Abrasion 2cm x 0.5cm over right side front of chest 7cm below right nipple. (iii) Incised wound 2cm x 0.5cm x abdominal cavity deep over left side abdomen close to umbilicus, vertically placed, tailed downwards. (iv) Incised wound 2cm x 0.5cm x abdominal cavity deep over front of abdomen right side. 2cm above umblicus, horizontally directed, tailed right side. (v) Incised wound 1.5cm x 0.5cm x abdominal cavity deep over left side abdomen, 2cm below costal margin, vertically placed, tailed downwards. (vi) Incised wound 2cm x 1cm x abdominal cavity deep over left side abdomen 8cm below and medially to injury No. 5, horizontally placed, tailed towards left. (vii) Multiple abrasion in an area of 5cm x 3cm over right side face. (viii) Incised wound 1cm x 0.5cm x bone deep over back of right 8 scapular area, vertically placed, tailed downwards. (ix) Incised wound 1.5cm x 0.5cm x bone deep over back of chest midline, horizontally directed tailed towards left. (x) Abrasion 1cm x 0.5cm, 3cm below injury No. 9. (xi) Incised wound 1.5cm x 0.5cm x bone deep over left side back 7cm below injury No. (10), vertically placed, tailed upwards. (xii) Incised wound 1.5cm x 1cm x bone deep over back of chest lower port right side vertically placed, tailed downwards. (xiii) Abrasion 1cm x 0.5cm over outer and upper part of right buttock. (xiv) Incised wound 2cm x 1cm x bone deep over right side chest lateral aspect lower part, vertically placed, tailed upwards. (xv) Incised wound 1cm x 0.5cm x muscle deep over right side back lower part 4cm from injury No. 14. 9 (xvi) Incised wound 1cm x 0.5cm muscle deep over back of right side abdomen upper part 5cm below injury No. 15, vertically placed, tailed upwards. (xvii) Abrasion 7cm x 2cm over right side back of abdomen, close to injury No. (16). (xviii) Abrasion 3cm x 1cm over back of right forearm upper part. (xix) Abrasion 2cm x 1cm over right forearm medial lower part. (xx) Incised wound 1.5cm x 0.5cm x muscle deep over left palm. (xxi) Incised wound 1cm x 0.5cm over palmer aspect of left ring finger. (xxii) Incised wound 0.5cm x 0.5cm over palmer aspect of left thumb. The Medical Officer after external and internal examination of the dead body of deceased opined that the deceased had died of shock and haemorrhage due to ante mortem injuries. The evidence of P.W.4 Dr. R.K. Pandey, read with autopsy report (Ext.A-2) clearly establishes on record that the deceased had died a homicidal death. Now this Court has to see whether accused 10 / appellants, namely, Raju alias Raj Kumar, Kishore, Dhara and Hukam have abducted the deceased (Ranjeet) on 25.02.1991, as suggested by the prosecution and was murdered and thereafter his body was concealed by them. (6) The only witness of fact who has supported the prosecution story that too in his examination in chief is P.W.1 Nurey Bahadur, the complainant. He has stated in his examination in chief that on 25.02.1991 at about 10.45 p.m., when he was on his way to home with his brother Ranjeet (deceased) and Daddu (P.W.3), the accused / appellant called Ranjeet to have tea in the tea stall of Ashok (P.W.2). After they had tea, accused / appellants dragged Ranjeet into a Car standing near the tea stall, bearing Registration No. UP07- 3797. According to this witness, thereafter, he lodged First Information Report (Ext.A-1) with Police Station Kotwali Haridwar after getting it scribed through one Naresh. Though this witness has supported the prosecution story in his examination in chief but when he was cross examined, this witness could not identify the accused / appellant Hukam. When he (P.W.1) was shown an Ambassador Car standing out side court he told that the vehicle in which Ranjeet was abducted was not of that make. But the recovery memo (Ext.A-24) which pertains to recovery of Car 11 / Taxi bearing Registration No.UP07-3797 shows that said vehicle was of make Ambassador. P.W.1 Nurey Bahadur has stated in his cross- examination the vehicle as the one having sliding doors and engine not projected out (which suggests the vehicle of kind of a Maruti Van). This witness was not got declared hostile by prosecution, but had it been so it could have been said that the witness was later won over by the accused. In the circumstances, the material contradiction pointed above creates doubt as to whether this witness (P.W.1) Nurey Bahadur has actually seen the occurrence of abduction or not. (7) P.W.2 Ashok is the person in whose tea stall the accused / appellants and deceased said to have had taken tea before the deceased was abducted. P.W.2 Ashok has not supported the prosecution story and simply stated that in his presence no incident had occurred. This witness has been got declared hostile by the prosecution. On going through the statement of this witness we do not find that his testimony in any way corroborates the prosecution story. (8) P.W.3 Daddu has also supported the prosecution story only to the extent that Ranjeet was abducted but he did not disclose the names of the accused / appellants. He (P.W.3) has stated 12 that he did not know nor he can identify the persons who abducted Ranjeet. As such, P.W.3 Daddu was also got declared hostile, as his statement does not throw any light on the role of the accused / appellants in commission of crime. (9) Last witness of fact is P.W.5 Ashok Kumar in whose presence dead body of the deceased is said to have been recovered. Though, this witness (P.W.5) corroborates the fact that the Police prepared inquest report (Ext.A-11), but he denies that the dead body was recovered on the pointing out of accused / appellant Raju. He could not identify accused Raju in court. This witness was also declared hostile by the prosecution. His statement also does not throw any light as to the role of any of the accused / appellants Raju alias Raj Kumar, Dhara, Kishore and Hukam in commission of murder of the deceased. The rest of the witnesses are police witnesses. They have proved the documents prepared by them. (10) Having reassessed the entire evidence on record, we are of the view that the prosecution has failed to prove any of the charges against accused / appellants, namely, Raju alias Raj Kumar, Kishore, Dhara and Hukam, beyond reasonable doubt. No doubt, the murder of Ranjeet (deceased) 13 appears to be brutal as there were as many as 22 ante mortem injuries, which included 15 incised wounds, but what was further required to be proved was the role of the accused / appellants in commission of crime. Though, the Police witnesses have given evidence that hairs of the accused / appellants were cut and samples were taken to compare their hairs with the hairs found in the hands of the deceased at the time of recovery of dead body, but non production of the report of the forensic expert makes the efforts of Investigating Agency to take hairs of the accused / appellants futile. Had there been a report of forensic expert as to the fact that the hairs found in the hands of the deceased were that of the accused / appellants or any one of them, it would have been an important piece of evidence as a circumstance to show commission of murder by the accused / appellants. The case at hand is of the nature where no one is said to have seen the commission of murder by the accused / appellants. In such a case to prove the charge of murder the chain of circumstances was required to be complete, which is not there. As to the charge of abduction and concealment of body as discussed above, the prosecution has failed to prove said charges also beyond reasonable doubt against the accused / appellants. 14 (11) For the reasons as discussed above, this appeal deserves to be allowed. The appeal is allowed. The impugned judgment and order dated 12.12.1995, passed by learned First Additional Sessions Judge, Haridwar, in Sessions Trial No. 275 of 1991, whereby accused / appellants Raju alias Raj Kumar, Kishore, Dhara and Hukam are convicted and sentenced under Sections 364, 302/34 and 201 I.P.C., is set aside. They are acquitted of said charges. They are on bail. They need not to surrender. Lower Court Record by sent back. (B.S. Verma, J.) (Prafulla C. Pant, J.) 27.07.2009 NS