Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Jail Appeal No. 34 of 2010 Sukhvir Singh S/o Shri Tota Singh R/o Village Majyari, Patwari Circle Simlasoo, Tehsil Pokhari, P.S. Pokhari, D istrict Chamoli Garhwal. ...…………. Appellant Versus State of Uttarakhand ...…………. Respondent Mrs. Gora Devi Dev, Advocate (Amicus Curiae), present for appellant. Mr. S.S. Adhikari, Asstt. Government Advocate, present for the State. Coram : Hon’ble Prafulla C. Pant, J. Hon’ble Nirmal Yadav, J. Per: Hon. Prafulla C. Pant, J. This appeal, preferred under Section 374 of the Code of Criminal Procedure, 1973 (for short Cr.P.C.), received through Superintendent, District Jail, Dehradun, is directed against the judgment and order dated 24.02.2010, passed by Sessions Judge, Chamoli at 2 Gopeshwar, in Sessions Trial No. 15 of 2007, whereby said court has convicted accused / appellant Sukhvir Singh under Section 302 of the Indian Penal Code, 1860 (for short I.P.C.), and sentenced him to undergo imprisonment for life, and also directed to pay fine of Rs. 5,000/-, in default of payment of which he has been further directed to undergo imprisonment for a period of one year. 2) Heard learned Amicus Curiae for the appellant and learned A.G.A. for the State, and perused the lower court record. 3) Prosecution story, in brief, is that on 08.08.2007, at about 09:00 A.M., P.W. 1 Ummed Singh gave first information report (Ext. A –1) to Patwari of Patwari Circle Simlasuon, Tehsil Pokhari, District Chamoli, against accused Sukhvir Singh that he (Sukhvir Singh) has committed murder of Gulshan Singh in village Majyari. (In Uttarakhand hills vide U.P. Government Notification No. 494 / VIII – 418 –16 dated 7th March 1916, certain revenue officials are given police powers). It is stated in the first information report that on the previous day i.e. 07.08.2007, Sukhvir Singh (accused) and Gulshan Singh (deceased) had gone together to their place of work. But they had enmity. At about 10:30 P.M., on 07.08.2007, complainant heard shouts of his brother Gulshan Singh, and rushed to the spot along with his wife P.W. 2 Sateshwari Devi. The two saw accused 3 Sukhvir Singh giving blows with an axe on the person of Gulshan Singh. They attempted to save Gulshan Singh from accused, but they were threatened by him. They left the dead body of the deceased in the courtyard (Chowk) of the accused. On the very day i.e. 07.08.2007, at 11:00 P.M., complainant Ummed Singh (P.W. 1) went to house of village Pradhan. P.W. 5 Savar Singh (husband of village Pradhan) did not dare to go to the spot in the dark night, as it was raining. Next day on 08.08.2007, the complainant along with Savar Singh went to Patwari of the area, and lodged first information report (Ext. A –1), on the basis of which check report (Ext. A –5) was prepared, and crime No. 01 of 2007 was registered against accused Sukhvir Singh, relating to offence punishable under Section 302 of I.P.C. The Patwari started investigation. He went to the spot and prepared inquest report (Ext. A –2), sketch of the dead body (Ext. A –7), police form No. 13 (Ext. A –8), sample seal (Ext. A –9), and letter to the Chief Medical Officer (Ext. A – 10), requesting him for postmortem examination. P.W. 4 Dr. P.P. Raturi conducted postmortem examination on the dead body of Gulshan Singh on 09.08.2007, at 02:00 P.M. He recorded eight incised wounds on the body of the deceased, and mentioned in the autopsy report (Ext. A –4) that the deceased had died due to shock and haemorrhage, as a result of ante mortem injuries. The Patwari interrogated some of the witnesses, and prepared site plan, where after investigation was handed over to P.W. 8 Jagdish Singh, the then Tehsildar. Thereafter, 4 investigation was further transferred to regular police and Sub Inspector Rajendera Singh (P.W. 7) concluded the investigation, and submitted charge sheet (Ext. A –12) against the accused Sukhvir Singh, for his trial in respect of offence punishable under Section 302 of I.P.C. 4) The Chief Judicial Magistrate, Chamoli, on receipt of the charge sheet after giving necessary copies to the accused, as required under Section 207 of Cr.P.C., committed the case to the court of sessions for trial. Learned Sessions Judge, Chamoli, on 01.12.2007, after hearing the parties, framed charge of offence punishable under Section 302 of I.P.C. against accused Sukhvir Singh, who pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1 Ummed Singh (complainant); P.W. 2 Smt. Sateshwari Devi (wife of the complainant); P.W. 3 Smt. Magni Devi (widow of the deceased); P.W. 4 Dr. P.P. Raturi (who conducted the postmortem examination); P.W. 5 Savar Singh (husband of village pradhan); P.W. 6 Dalveer Singh, Patwari (who started the investigation); P.W. 7 Sub Inspector Rajendra Singh (who concluded the investigation), and P.W. 8 Jagdish Singh (the then Tehsildar). The oral and documentary evidence was put to the accused under Section 313 of Cr.P.C., in reply to which he admitted that he and deceased Gulshan Singh belong to the same village. However, he denied having committed murder of the deceased. No evidence in defence was adduced. The trial court, after hearing the parties, found accused 5 Sukhvir Singh guilty of charge of offence punishable under Section 302 of I.P.C. After hearing on sentence, the trial court sentenced him to imprisonment for life, and directed to pay fine of Rs. 5,000/-. Aggrieved by said judgment and order dated 24.02.2010, passed by Sessions Judge, Chamoli, in Sessions Trial No. 15 of 2007, this appeal is preferred by the convict from the jail. 5) Before further discussion, we think it just and proper to mention here the ante mortem injuries recorded in the autopsy report (Ext. A –4) by P.W. 4 Dr. P.P. Raturi, after postmortem examination of the dead body of Gulshan Singh. The same are being reproduced below: “ i) Incised wound 8 cm X 2 cm X bone deep. Clotted blood present on right side thigh 3 cm above right knee joint. ii) Incised wound 9 cm X 3.5 cm X bone deep. Clotted blood present 6 cm above the left knee joint on the surface of right thigh. iii) Incised wound 10 cm X 4 cm X muscle deep. Clotted blood present on left lower side abdomen 8 cm above left iliac crest. iv) Incised wound 10 cm X 5 cm X muscle deep on the right forearm dorsal side starting from right elbow joint. Clotted blood present. v) Incised wound 6 cm X 0.5 cm X muscle deep, 2 cm anterior to right ear pinna on right side of face. Clotted blood present. vi) Incised wound 3 cm X 0.5 cm X muscle deep on left lateral side of neck, 4 cm below left ear. 6 vii) Incised wound 4 cm X 0.5 cm X muscle deep, 2 cm below right eye. Clotted blood present. viii) Incised wound 2 cm X 1.5 cm X muscle deep left side bridge of nose. Clotted blood present.” 6) On internal examination the Medical Officer found fractures in the lower right parietal bone, second cervical vertebra, right parietal bone and left maxilla bone. The Medical Officer opined that the deceased had died due to shock and haemorrhage, as a result of ante mortem injuries. The medical evidence on record clearly establishes that Gulshan Singh had died a homicidal death. Now, this court has to examine whether accused Sukhvir Singh has committed murder of Gulshan Singh, as suggested by prosecution. 7) P.W. 1 Ummed Singh has stated that accused Sukhvir Singh used to harbour enmity with his family, as such, he had enmity with Gulshan Singh also. According to the witness, on 07.08.2007, at about 10:30 P.M., he heard a call from Sukvir Singh’s house – “gs eka eq>s ekj fn;k] cpk ys] cpk ys” (Oh mother, I am being killed, save me! save me!). On hearing said call he (P.W. 1) along with his wife Sateshwari Devi (P.W. 2) went to the house of Sukhvir Singh and saw that Sukhvir Singh is assaulting Gulshan Singh with an axe in his kitchen garden. When he tried to intervene, the accused threatened to kill him, as such, he along with his wife came back and went to the house of village Pradhan. On 7 the next day, he lodged the first information report (Ext. A –1) with the Patwari of the area. The witness has further proved that on 08.08.2007, inquest report (Ext. A –2) was prepared in his presence. 8) P.W. 2 Sateshwari Devi, wife of the complainant, has corroborated the story narrated by her husband. P.W. 3 Smt. Magni Devi, widow of the deceased, has also stated the same prosecution story, as narrated by P.W. 1 Ummed Singh and P.W. 2 Sateshwari Devi. Apparently it looks that the oral testimony is supported by the medical evidence and could be believed. However, on close scrutiny of the oral evidence on record, the deposition made by P.W. 1 Ummed Singh, P.W. 2 Sateshwari Devi and P.W. 3 Smt. Magni Devi does not appear to be trustworthy. 9) The first important fact in the present case as pointed out by learned Amicus Curiae is that the incident is said to have taken place in a dark night at about 10:30 P.M., when it was raining. Though the prosecution has attempted to explain that there was an electric light inside the house of the accused, but it is pertinent to mention here that incident had not taken place inside the house. The scene of incident is of Sagwara (a kitchen garden / field) outside the house in the village. It is nobody’s case that there was light in Sagwara (kitchen garden / field). 8 10) Assuming for a moment that there was sufficient light to witness that the accused was giving blow with axe on the person of Gulshan Singh, it is hard to believe that on his call to save him, no one came out from the neighbouring houses and only complainant (P.W. 1) and his wife (P.W. 2) reached at the spot along with Magni Devi (P.W. 3). Name of Magni Devi (P.W. 3) is not mentioned in the first information report that she too witnessed the incident. Her presence at the spot is also doubtful. P.W. 7 Sub Inspector Rajendra Singh in his cross-examination states that Sateshwari Devi and Magni Devi told him in their statements recorded under Section 161 of Cr.P.C. that when Gulshan Singh did not return home on that day, complainant went to search him in that night. As such, even the presence of Sateshwari Devi (P.W. 2) at the time of commission of crime appears to be doubtful. 11) As far as statement of P.W. 1 Ummed Singh is concerned, there are material contradictions in his statement with the other evidence on record. In the first information report he states that he saw accused Sukhvir Singh assaulting Gulshan Singh with an axe (KULHARA). In the inquest report, as one of the Panchas, he observes that the deceased has been killed with a ‘BASULA’ (carpenter’s axe) (a small sharp edged tool). In his examination-in-chief, P.W. 1 Ummed Singh states that one KULHARA and one BASULA were lying at the spot, and brother and father of accused Sukhvir 9 Singh told that Sukhvir Singh has killed the deceased with these two weapons. P.W. 1 Ummed Singh further states in his examination-in-chief that Patwari took the two weapons in his possession and sealed it. The evidence relating to axe and carpenter’s axe given by the complainant that these were lying at the spot and were taken by Patwari is not supported from the statement of P.W. 6 Dalveer Singh, Patwari. There is no recovery memo of the weapon on the record. It is highly improbable that anyone would keep the weapon by the side of deceased till Investigating Officer reached there next day. 12) On behalf of the appellant it is argued that Gulshan Singh (deceased) was a man of bad character, and had enmity with many persons in the village, and anyone could have killed him. Statement of P.W. 5 Savar Singh (husband of village Pradhan) shows that it is true that Gulshan Singh had once molested wife of Darshan Singh by entering in his house at 11:00 P.M., and attempted to commit rape on her. On the complaint of Darshan Singh village Panchayat awarded fine of Rs. 100/- against Gulshan Singh. P.W. 5 Savar Singh further states that thereafter Satyapal made similar complaint against Gulshan Singh that between 10:30 P.M. to 11:00 P.M., he (Gulshan Singh) once entered in his house and attempted to commit rape on his wife. On that complaint, village Panchayat awarded fine of Rs. 500/- against Gulshan Singh. The witness (P.W. 5) further states that 10 after the incident as complained by Darshan Singh, Mohan Singh also made similar complaint against Gulshan Singh that he molested his wife at about 11:00 P.M., outside his house, and attempted to take her forcibly. According to P.W. 5 Savar Singh, wife of Mohan Singh raised alarm and villagers intervened and got Mohan Singh’s wife freed. P.W. 5 Savar Singh further told that before all these three incidents there had been similar incident with wife of one Vasudev when she had gone to milch her buffalo inside the cowshed. In the above circumstances, this court finds that it cannot be ruled out that Gulshan Singh might have been killed by anyone with whom he had enmity. 13) We think it just and proper to mention her that the prosecution has not explained as to why deceased Gulshan Singh had gone to the house or in the Sagwara (kitchen garden) of Sukhvir Singh (accused) in the night. It has come on the record that house of complainant Ummed Singh and the deceased were at a distance of 200 meters from the place of incident, as stated by P.W. 5 Savar Singh in his cross-examination. 14) For the reasons as discussed above, we are of the view that statements of three eyewitnesses are neither natural nor reliable, and prosecution has failed to prove charge beyond reasonable doubt that accused Sukhvir Singh committed murder of Gulshan Singh. In our opinion, the trial court has erred in appreciating the 11 evidence on record. In the present case, the accused / appellant Sukhvir Singh is entitled to the benefit of reasonable doubt as pointed out by us in the preceding paragraphs. 15) Therefore, this appeal is allowed. The judgment and order dated 24.02.2010, passed by Sessions Judge, Chamoli, in Sessions Trial No. 15 of 2007, is set aside. Conviction and sentence recorded by the trial court against the accused / appellant also stand set aside. Accused / appellant Sukhvir Singh is acquitted of charge of offence punishable under Section 302 of I.P.C. He is in jail. Let a copy of this judgment be sent to the Superintendent of jail concerned, with the direction that if the accused / appellant is not wanted in connection with any other crime, he be set at liberty forthwith. The lower court record be sent back. (Nirmal Yadav, J.) (Prafulla C. Pant, J.) Dt. September 14, 2010. H. Negi