IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Government Appeal No. 1758 of 2001 State of Uttaranchal ( Uttarakhand) …..…Appellant Versus 1. Sanjay Bahal S/o Shri Om Prakash Bahal R/o 9A Rampur Mandi Road P.S. Kotwali District Dehradun 2. Rajnish Bansal, S/o Bheem Sen Bansal R/o 17A Vinay Colony Thana Sector- 4 Patiyala Punjab 3. Israil George ……….Respondents Shri Amit Bhatt, A.G.A., present for the State. Shri D.K. Sharma, and Shri L.K. Tiwari, Advocates, present for the respondents no. 1 and 2. Hon'ble Prafulla C. Pant, J. Hon'ble V.K. Bist, J. Hon'ble Prafulla C. Pant, J. (Oral) This appeal, preferred under section 378 of Code of Criminal Procedure, 1973 (for short Cr.P.C) is directed against the judgment and order dated 18.12.2000, passed in Sessions Trial No. 135 of 1994, whereby learned Sessions Judge, 2 Dehradun, has acquitted the respondents/accused Sanjay Bahal, Rajnish Bansal and Israil George from the charge of offences punishable under section 302/34 and 201/34 Indian Penal Code, 1860 (for short IPC). 2. Heard learned counsel for the parties and perused the lower court record. 3. Prosecution story, in brief, is that Km. Varsha @ Vinod Sharma aged 24 years was sister-in-law of P.W.1 Vinod Kumar. On 16.06.1994, she had gone for prayer to PEER BABA KI MAZAR in Dehradun, but did not return back. A missing report to this effect was given by P.W. 1 Vinod Kumar at Police Station Raipur on the very day. On the next day, the dead body was found in the morning in Nalapani jungle which was noticed by P.W.2 Satish Chandra Guleriya who informed about it, and gave written report (Ex. A1) at Police Station Raipur. The body was identified by P.W.1 Vinod Kumar and his wife P.W. 10 Smt. Shalini (sister of the deceased). On the basis of the written report given by P.W. 2 Satish Chandra Guleriya a crime no. 51 of 1994 against unknown persons 3 was registered in respect of offence punishable under section 302 of 2011 IPC, at Police Station Raipur, and investigation was taken over by P.W. 15 Incharge Inspector Rakesh Kumar Mittal. The dead body of Km. Varsha @ Vinod Sharma was taken into possession by the police, and inquest report (Ex. A14) was prepared on 17.06.1994 at about 9:15 a.m.. Police further prepared form no. 13 (Ex. A15), sketch of the dead body (Ex. A16), sample seal (Ex. A17) and letter to Chief Medical Officer (Ex. A18) requesting for post-mortem examination. The dead body was sent in a sealed condition for post-mortem examination, and P.W.11 Dr. B.C. Ramola conducted post-mortem on the dead body of the deceased on the very day (17.06.1994) at about 4:00 p.m.. He recorded two ante-mortem gun shot injuries one of entry and another of exit, and six post-mortem injuries on the dead body of the deceased and opined in his autopsy report (Ex. A3) that deceased had died of shock and hemorrhage due to ante-mortem gun shot injuries. During investigation accused Sanjay Bahal, Rajnish Bansal and Israil George were arrested after interrogating the witnesses. The recovery of revolver allegedly used in the crime is 4 said to have been made by the Investigating Officer (P.W. 14 Incharge Inspector Ram Jee Mishra to whom investigation is said to have been transferred) on 17.06.1994. The car bearing registration no. DL2CA9541 said to have been used in the crime was also recovered during investigation. The recovered revolver, entry cartridges, and blood stained clothes of the deceased were sent through P.W. 19 Constable Hariom Singh to the Forensic Laboratory Agra for examination. A report (Ex. A14) was received from said laboratory in which it was reported that the clothes of the deceased and a piece of seat of car and piece of wood taken from the place of incident contained human blood. It was also reported by the Forensic Laboratory that the empty cartridge sent to it was found to have been fired from the revolver sent to the laboratory. The prosecution case is that Km. Varsha @ Vinod Sharma had illicit relations with accused/respondent Rajnish Bansal, and on birthday of Sanjay Bahal he asked her to submit herself for physical relations to Sanjay Bahal on which she declined, and shot by him (Sanjay Bahal) by using his revolver recovered during investigation. On completion of 5 investigation, charge sheet (Ex. A12) was filed by the Investigating Officer for trial of accused/respondents Sanjay Bahal, Rajnish Bansal and Israil George in respect of offences punishable under section 302 and 201 IPC. 4. The Magistrate, on receipt of the charge sheet, appears to have committed the case to the court of Sessions for trial after giving necessary copies to the accused as required under section 207 Cr.P.C. Learned Sessions Judge, Dehradun on 25.04.1995, after hearing the parties framed charge of offences punishable under section 302/34 and 201/34 IPC against the accused Rajnish Bansal, and the charge relating to offences punishable under section 302/34, 201/34 and one punishable under section 354 IPC, against accused Sanjay Bahal. A separate charge was framed against accused Israil George who was a driver said to have been driving car DL2CA9541 in respect of offence punishable under section 201/34 IPC. All the three accused pleaded not guilty and claimed to be tried . On this, prosecution got examined P.W.1 Vinod Kumar (brother-in-law of the deceased), P.W.2 Satish Chandra Guleriya (who found dead body 6 lying in Nalapani), P.W.3 Suresh (witness of recovery declared hostile), P.W.4 Dev Prakash (witness of recovery declared hostile), P.W.5 Smt. Kala Sajwan (land lady of accused Rajnish Bansal declared hostile), P.W.7 Suresh Pal Baliyan (who did not support the prosecution story but not declared hostile), P.W.8 Naresh Bahadur Thapa (declared hostile), P.W.9Vijay Kishan Das (witness of recovery of car declared hostile), P.W.10 Smt. Shalini (sister of the deceased who identified her purse ), P.W.11 Dr. B.C. Ramola (who conducted post-mortem examination), P.W.12 Ramesh Kumar (Ballistic expert),P.W.13 Constable Naresh Kumar, P.W.14 Incharge Inspector Ram Jee Mishra (who said to have investigated the crime), P.W.15 Rakesh Kumar Mittal (Station House Officer of Raipur who started investigation ), P.W.16 S.I. Johri Lal (who arrested the accused), P.W.17, Head constable Nagandra Prasad (who prepared check report), P.W.18 Vimal Deep Singh (declared hostile) and P.W.19 Constable Hariom Singh (who took the sealed articles to the Forensic Laboratory). The oral and documentary evidence was put to the accused under section 313 Cr.P.C. in reply to which they alleged the evidence 7 adduced against them is false. No evidence in defence was adduced. The trial court, after hearing the parties, found that prosecution has failed to prove the charge against any of the accused, and acquitted them from the charge framed against them. Aggrieved by said judgment and order dated 18.12.2000, passed by Sessions Judge, Dehradun, in Sessions Trial no. 135 of 1994, this appeal is filed on behalf of the State in which leave was granted, and lower court record was summoned. 5. Before further discussion, we think it just and proper to mention the ante-mortem injuries found on the dead body of Ms. Varsha @ Vinod by P.W. 11 Dr. B.C. Ramola who mentioned the same in the autopsy report (Ex. A3)on 17.06.1994 after post-mortem examination. The same are being reproduced below:- (i) A gun shot entry wound on front of chest just below medial end of left clevicle. The margins are blackened and inverted. The wound is oval in shape and measures 1cm X 1cm. (ii) A gun shot exit wound 1.5cm X 8 1.5cm on left side 11cm below shoulder and 12cm to mid line at the back. The margins of the wound are everted. The medical officer also found post- mortem injuries on the dead body of the deceased which read as under in the autopsy report (Ex. A3):- (i) Partial burning of hairs of the head. (ii) Post mortem burn injuries superficial in front of back of neck. (iii) Superficial post mortem burn injuries on outer part of fore-arm. (iv) Superficial post mortem burn injury on lateral aspect of chest and abdomen right side in an area of 60cm X 15cm. (v) Superficial post mortem burn injury on the back limbo sarial region in the area of 36cm X 18cm. (vi) Post mortem burn injury on front, inner and outer aspect of both thighs. Charring of skin extending down to both legs upto ankle joint. (vii) Post mortem burn injury superficial on left shoulder outer aspect extending down to right upper arm and medial aspect of left 9 elbow joint. 6. P.W.11 Dr. B.C. Ramola stated that hymen of the deceased was intact. Supermotozoa found not present. No laceration of vagina and its orifice admitted one finger only. According to the medical officer the deceased died of shock and hemorrhage as a result of ante-mortem fire arm injury. From the above medical evidence on record it is clear that Km. Varsha @ Vinod aged 24 years died a homicidal death but the case of the prosecution that she had illicit relations with accused Rajnish Bansal does not get supported in view of the fact mentioned in the autopsy report relating to generation organs. 7. The prosecution has come up with a case against the accused/respondents that recovery of revolver used in the crime (Ex. 5) was made from accused Sanjay Bahal. However, the recovery as suggested to have been made on 17.06.1994, does not get corroborated from the statement of P.W.3 Suresh and P.W.4 Dev Prakash who are the public witnesses of the recovery. Otherwise also the prosecution case that the recovery of revolver 10 used in the crime was made on 17.06.1994, and the weapon was sealed gets belied from the statement of P.W.1 Vinod Kumar (brother-in-law of the deceased) who has stated that on 18.06.1994 he was shown revolver at the control room in the presence of Sanjay Bahal and he was told by the Station Officer Dalanwala that the said weapon was used in the crime. The arguments advanced on behalf of the defence cannot be rejected lightly that till 18.06.1994, the weapon was lying unsealed and it cannot be said that the recovery was made in the manner suggested by the prosecution. Not only this, even the original recovery memo is not placed on the record. What has been placed, is a copy made from the case diary which is not signed by any of the witnesses or the accused. In such circumstances, the alleged recovery of the weapon said to have been used in the crime by Sanjay Bahal as suggested by prosecution appears to be doubtful. 8. As far as accused Rajnish Bansal is concerned, we have already mentioned above that the medical report does not support the prosecution case that he had any illicit relations 11 with the girl (accused). Not only this plea of alibi taken by this accused in his defence is supported by P.W.6 Kala Sajwan who has stated that accused Rajnish Bansal who was her tenant had gone out with his wife and children on 12.06.1994. P.W.7 Suresh Pal Baliyan (who was not declared hostile) has also supported the plea of alibi taken by the accused and not supported the prosecution case. He has specifically stated that this accused had gone on leave from 12.06.1994 to 08.07.1994. P.W.8 Naresh Bahadur Thapa (declared hostile) has also not supported the prosecution story. 9. Only on the basis of the evidence of the Forensic Laboratory, without there being linking evidence showing complicity of the accused/respondents it cannot be said that the charge of commission of murder with common intention or that of causing disappearance of evidence to save themselves stood proved against them. 10. As far as the recovery of car bearing registration no. DL2CA9541 is concerned it is nowhere shown in the record that anyone had 12 seen accused/respondent Israil George taking dead body in said car to Nalapani. As against him also links of chain of evidence are missing and the trial court has rightly acquitted him also. The arrest of accused Sanjay Behal and recovery made from him allegedly made by P.W.14 Incharge Inspector Ram Jee Mishra of Police Station Dalanwala on 17.06.1994 otherwise also remains unexplained as according to P.W. 15 Rakesh Kumar Mittal (S,H.O.) investigation was transferred from police station Raiwala to police station Dalanwala only on 18.06.1994. Therefore, we do not find it fit case for interference with the impugned judgment passed by the trial court whereby the accused/respondent Sanjay Behal, Rajnish Bansal and Israil George are acquitted from the charges framed against them. 11. Therefore, the appeal has no force as the chain of circumstance against the accused/respondents is not complete. Their acquittal is affirmed and the appeal filed by the State is dismissed. Lower court record be sent back. (V.K.Bist, J.) (Prafulla C. Pant, J.) 23.03.2011 Parul