IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Government Appeal No. 191 of 2001 (Old No. 1586 of 1998) State …Appellant Versus Pramod Kumar and others …Respondents Mr. S.S. Adhikari, A.G.A. for the State/appellant Mr. S.P.S. Panwar, Senior Advocate assisted by Mr. H.C. Pathak for the respondents Hon’ble B.C. Kandpal, J. Hon’ble Nirmal Yadav, J. Per :Hon’ble B.C. Kandpal, J.(Oral) This Government Appeal preferred by the State under Section 378(3) of Cr.P.C. is directed against the judgment and order dated 20.03.1998 passed by 1st Additional Sessions Judge, Haridwar, in Sessions Trial No. 37 of 1995, State versus Pramod Kumar and others, whereby accused-respondents have been acquitted of the charge of offence punishable under Sections 302/34 and 506 I.P.C. 2- Prosecution story in brief is that prior to the date of incident i.e. 30.10.1994 deceased Ramdas had a quarrel with accused persons with regard to dispute of boundary wall of his house and accused persons wanted to forcibly take over the possession over the property of deceased Ramdas and for this reason accused persons wanted to kill Ramdas. On 30.10.1994 at 5.30 a.m. in the morning, deceased Ramdas, along with Ilam Singh (PW-4) and Mahesh, had gone to answer the call of nature. According to 2 PW-3 Vinod Kumar Pal (son of the deceased), he himself and his mother PW-5 Smt. Ilamwati (wife of deceased) were giving grass to the cattle at that time. At about 5.45 a.m. they heard sound of firing a gunshot from the side of hill. At this, when they came out and saw towards hill, they saw accused Pramod having country made pistol in his hands, along with accused Harpal and Shobharam, running away towards hill. Mahesh and Ilam Singh (PW-4) while shouting were chasing the accused persons. Accused Shobharam and Harpal were saying that he (deceased) is the bone of contention and kill him. At this, accused Pramod fired at Ram Das with country-made pistol, due to which Ram Das died and he was lying dead by the side of way near hill. This incident was also seen by PW-3 Vinod Kumar Pal and other villagers. According to PW-3, his father Ram Das sustained firearm injury on his right temple (Kanpati) and blood was oozing from left side of his neck. The F.I.R. (Ext.9) of this incident was got scribed by PW-3 Vinod Kumar Pal through Subhash Chandra on 30.10.1994 at 7.45 a.m. and on the basis thereof, Head Moharrir Vikram Singh (PW-1) registered the case as Crime No. 183 of 1994 under Section 302/506. Chick F.I.R. (Ext.Ka.1) was recorded and entry to this effect was made in General Diary (Ext.2). The investigation of the case was taken up by PW-2 Ishwari Dutt Joshi, who inspected the place of occurrence and prepared the panchnama (Ext.Ka.3). The investigating officer took in his possession bloodstained earth and simple earth (Exts.4 and 5), Arandi wood, sleeper and bottle (Ext.1 to 3) and 3 prepared its recovery memo (Ext.Ka.4). The autopsy on the dead body of deceased Ramdas was conducted by Dr. Rameshwar Prasad (PW-6) on 30.10.1994, who found as many as four ante mortem injuries on the person of deceased. The investigating officer having completed the formalities of the investigation submitted charge sheet (Ext.Ka.12) against the accused persons. 3- After submission of the charge sheet accused- respondent was committed to the court of Sessions and the learned Sessions Judge after hearing the parties framed charge of offence punishable under Sections 302/34 and 506 I.P.C. against accused- respondents. The accused pleaded not guilty and claimed to be tried. 4- The prosecution in order to prove its case got examined as many as seven witnesses in the case, namely, H.C.-8 Vikram Singh (PW-1), Ishwari Dutt Joshi S.S.I. (PW-2), Vinod (PW-3), Ilam Singh (PW- 4), Smt. Ilamwati (PW-5) and Dr. Rameshwar Prasad (PW-6). 5- The accused/respondents in their statements under Section 313 Cr.P.C. denied all the allegations of the prosecution and stated that they have been falsely implicated. The defence in support of its case has produced DW-1 Maam Chand. 6- The trial court having considered the entire evidence on record and hearing learned counsel for parties found not guilty the accused/respondents of the offence punishable under Sections 302/34 and 4 506 I.P.C. and acquitted them of the charge levelled against them, vide impugned judgment and order dated 20.03.1998. 7- Feeling aggrieved by the aforesaid impugned judgment and order, the State has preferred the present appeal which has been placed before us for disposal. 8- Heard Mr. S.S. Adhikari, learned A.G.A. for the State/appellant, Mr. S.P.S. Panwar, learned senior counsel assisted by Mr. H.C. Pathak, learned counsel for the respondents and perused the record. 9- Learned A.G.A. appearing for the State has submitted that the trial court has erred in law while acquitting the respondents even in view of the fact that the case against them stood proved beyond reasonable doubt. 10- On the other hand, Sri S.P.S. Panwar, learned senior counsel appearing for the respondents has submitted that the prosecution has miserably failed to prove its case against the respondents beyond any reasonable doubt and, therefore, the trial court was fully justified while acquitting the respondents for the offences under which they were charged. 11- In view of the rival submissions made by learned counsel for the parties and the material available on record, the point arises for consideration in the present case is whether the 5 court below was justified in recording the acquittal against the accused-respondents. 12- We have re-assessed the entire oral and documentary evidence in this case. PW-4 Ilam Singh, who is said to be the eye witness of the incident, has stated in his cross-examination that he had sent Maam Chandra, Chowkidar to inform about the death of Ramdas. However, Maam Chandra was not produced by the prosecution rather he has been produced as a defence witness as DW-1, who in his examination-in-chief did not support the prosecution version that he was directed by PW-4 Ilam Singh and Mahesh (not produced by the prosecution) to inform about the death of the deceased. This witness has further deposed in his examination that when he heard the sound of fire, at that time he was answering the call of nature. In that event, it cannot be said in any way that in the dark he could have seen the accused persons and particularly, accused- respondent Pramod while firing a shot, whereas other accused-respondents Harpal and Shobharam while causing injuries by lathis. The story of yielding lathis blow by the accused persons appears to be an afterthought. This version does not find any place in the body of the F.I.R., which describes the manner of incident immediately after the incident. In this way, the eyewitness account makes the entire prosecution story to be doubtful. 13- Apart from this, further the statement of PW-4 is not going to support the prosecution version 6 inasmuch as he has deposed in his examination that when he heard the sound of fire, at that time he was answering the call of nature. In further examination he has stated that at the place where he was answering the call of nature, that may be at a distance of 40-42 yards from the place of occurrence. In that event, it cannot be said in any way that in the dark he could have seen the accused persons and particularly, accused- respondent Pramod while firing a shot, whereas other accused-respondents Harpal and Shobharam while causing injuries by lathis. 14- There is also material contradiction in the statement in the prosecution witnesses. PW-3 Vinod Kumar Pal (son of the deceased) and PW-5 Smt. Ilamwati (wife of the deceased) have deposed in their examination-in-chief that after the incident they saw the accused persons running towards the village. PW-4 Ilam Singh has stated in his evidence that when he reached near the dead body, accused persons had gone to a distance of about hundred yards. In this way, presence of these witnesses at the scene of occurrence appears to be doubtful. These witnesses have not supported the case in such a manner, as stated by the prosecution. Further, the evidence of PW-3 and PW-5 becomes doubtful in view of the deposition of PW-4 Ilam Singh who said that he sent Maam Chandra and Mahesh to inform Vinod Kumar Pal (PW-3) and Smt. Ilamwati (PW-5) about the incident and these witnesses reached at the place of occurrence only after getting the information. 7 15- It is worthy to mention here that there is no averment with regard to the source of light on the date and time on the place of occurrence inasmuch as in the F.I.R. itself, there is no mention about the same. Even it has come in the evidence that at the time of incident, it was a complete dark and as discussed above, since there is no mention about the source of light, it cannot be said in any manner that accused-respondents were seen while committing the alleged incident by any of the prosecution case. PW-4 Ilam Singh has stated in his statement that he recognized the accused persons by their voice, not by their faces. But this witness has not deposed about the specific voice of any of the accused persons. The trial court rightly came to the conclusion that in a situation where three persons are talking simultaneously there is no question of recognition of voice of any specific accused unless the witness tells about the same. 16- It is also pertinent to mention here that it is a settled principle of law that where two views are possible and the view, as taken by the trial court, is one of the possible views, in that situation, the appellate court shall not ordinarily interfere with the order of acquittal passed by the trial court. 17- Thus, we are of the view that the prosecution has been completely failed to establish the guilt against the accused-respondents beyond all reasonable doubt. The learned trial court has rightly acquitted the accused-respondents from the charges levelled against her. The reasons recorded by the 8 trial court for acquittal of the accused-respondent are based on material on record and we do not find any ground to interfere with the same. 18- In view of the above, appeal lacks merit and is liable to be dismissed. 19- The appeal is dismissed. The impugned judgment and order dated 20.03.1998 passed by the trial court is hereby confirmed. (Nirmal Yadav, J.) (B.C. Kandpal, J.) 14-07-2010 SP