IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Government Appeal No. 69/2001 (Old No.2612/1997) State …. Appellant. Versus Manoj Negi and 4 others .. Respondents. Sri S.S. Adhikari, learned A.G.A. for the appellant. Sri S.K. Agarwal, Senior Advocate, assisted by Mr. Lokendra Dobhal, learned counsel for the respondents. Coram: Hon’ble B.C. Kandpal, J. Hon’ble Nirmal Yadav, J. [Per: Hon’ble B.C. Kandpal, J.] This appeal, under Section 378(3) Cr.P.C., arises out against the judgment and order dated 8.8.1997, passed by II Addl. Sessions Judge, Dehradun, in Special S.T. No. 1/1996, State Vs. Manoj Negi and others, U/Ss 147, 148, 149, 302 I.P.C. and 3(2)5 S.C. S.T. Act and Section 25/4 Arms Act; Special S.T. No. 2/1996, State Vs. Suresh Chauhan, U/S 25/4 Arms Act; S.T. No. 296/1996, State Vs. Rajan Mamgain, U/S 25/4 Arms Act; S.T. No. 297/1997, State Vs. Rakesh Sondha, U/S 25/4 Arms Act and S.T. No. 302/1996, State Vs. Ramesh Negi, U/S 25/4 Arms Act. The learned trial Court has acquitted all the accused persons Manoj Negi, Ramesh, Rajan, Suresh Chauhan and Rakesh, from the charges levelled against them in the above trials. 2- The prosecution story, in short, is that on 13.7.1995 Smt. Lajwanti lodged a written report, 2 Ext. Ka.3 at P.S. Raipur, District Dehradun mentioning therein that her son Deepak is serving in O.L.F. Factory Raipur. On 13.7.1995 she had gone to the Factory in order to call her son for some domestic work and when she was returning in Factory vehicle No. HID 161, then Mukesh boarded the bus outside the Factory and when at about 4.30 P.M. the vehicle stopped at Tapovan Tiraha, suddenly Manoj Negi, Ramesh Negi armed with Khukari and Rajan, with hockey stick entered inside the bus. Besides them, two other persons also boarded the bus with hockey sticks. All these persons started beating her son with intention to kill him. On raising alarm by her the accused persons left her son in serious condition and started running away from there. The further prosecution story is that on raising alarm by her, police constable Brij Bhusan, Sher Singh and Krishna Kumar also arrived there and they caught Manoj Negi with Khukari and the other persons ran towards Tapovan riding in a scooter. The injured was brought to Hospital in that very bus. On the basis of written report, chick F.I.R., Ext. Ka.7 was prepared and a case was registered in the G.D., copy of which is Ext. Ka.10. The deceased has died on 13.7.1995 due to the injuries and the inquest report Ext. Ka. 15 was prepared by S.I. G.K. Trivedi. He sealed the dead body and prepared sample seal Ext. Ka.7. After preparing necessary papers, the dead body was sent for post mortem. 3- The autopsy on the dead body of the deceased was conducted by P.W.3, Mahesh Kumar 3 Joshi, on 14.7.1995 at 2.00 P.M. in Doon Hospital, Dehradun. The doctor found as many as 17 incised wounds of different size on the body of the deceased. In the opinion of the doctor the death was caused due to shock and haemorrhage as a result of ante-mortem injuries. The doctor has prepared post mortem report, Ext. Ka.2. 4- The investigation of the occurrence was entrusted to Ajay Gautam. He recorded the statements of the witnesses. He visited the place of occurrence and prepared site plans, Ext. Ka.19, Ka.26, Ka.27 and Ka.34. After completing the investigation he submitted charge sheets Ext. Ka. 27, Ka.28, Ka.29, Ka.32 and Ka. 33. 5- The cases were committed to the court of sessions. The learned Sessions Judge framed charges U/Ss 148, 302/34 I.P.C. and Section 3 (II) V of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act against all the accused Manoj Negi, Ramesh Negi, Rajan, Suresh Chauhan and Rakesh in Special Trial No. 1/1996. All the accused were separately charged U/S 25/4 of Arms Act in other sessions trials. They pleaded not guilty and claimed to be tried. 6- The learned trial court consolidated all the sessions trials and thereafter proceeded with the case. 7- The prosecution in order to prove its case against the accused persons produced P.W.1, Head 4 Constable Sain Singh, P.W.2, Constable Krishna Kumar, P.W.3, Dr. Mahesh Joshi, P.W.4, Smt. Lajwanti, P.W.5, Mukesh Kumar, P.W.6, Constable A.P. Singh, P.W.7, S.I. Govind Singh, P.W.8, Constable Harish Chand, P.W.9, Shravan Kumar, P.W.10, D.K. Dwivedi, P.W.11, S.I. V.K. Pandey, P.W.12, S.I. Ajay Pal Gautam and P.W.13, S.I. Suresh Saxena. 8- The accused persons in their statements U/S 313 Cr.P.C. denied the prosecution case and alleged that they have been falsely implicated in the case. They also produced D.W.1, Indrapal and D.W.2, Kripal Singh, in their defence. 9- The learned trial court, after having heard learned counsel for the parties, and perusing the entire material available on record, acquitted all the accused persons from the charges levelled against them vide impugned judgment and order. 10- Feeling aggrieved by the aforesaid judgment and order, the State has preferred this appeal. 11- We have heard Sri S.S. Adhikari, learned A.G.A. for the State/appellant and Sri S.K. Agarwal, Senior Advocate, assisted by Sri Lokendra Dobhal, learned counsel for accused/respondents, and perused the record. 12- Learned counsel for the State has submitted that accused Manoj Negi was seen by 5 eyewitnesses in committing the crime inside the vehicle and he was also arrested by the police personnel when he was escaping along with blood- stained Khukhari, but the trial court has wrongly disbelieved the prosecution story. He also contended that the learned trial court also committed manifest error by not considering the eyewitness account and acquitted the accused/respondents on unreasonable grounds. 13- We have perused the entire evidence adduced by the prosecution in this case and we are of the considered view that the prosecution has not been able to establish its case against the accused/respondents beyond all reasonable doubts and the submissions advanced by learned A.G.A. have no merit. 14- The prosecution case is that deceased Deepak was doing service in O.L.F. Factory Raipur. On 13.7.1995 Smt. Lajwanti mother of the deceased had gone to the Factory in order to call her son for some urgent domestic work. She along with her son Deepak was returning home in Factory Bus No. H.I.G. 161. At about 4.30 P.M. Mukesh son of Nandu also boarded the Bus outside the Factory and when the Bus stopped at Tapovan Tiraha, suddenly accused Manoj Negi and other accused persons entered inside the Bus with Khukhari and Hockey sticks and they suddenly started beating Deepak with Khukhari and Hockey Sticks. On raising alarm by Smt. Lajwanti and Mukesh accused persons fled away leaving Deepak there in 6 serious condition. On hearing alarm Constables Brij Bhushan, Sher Singh and Krishna Kumar, who were on patrolling duty, arrived there and they caught accused Negi along with Khukhari and the other accused persons fled away in the scooter towards Tapovan. Looking the serious condition of Deepak, he was brought to the Hospital by the Police. 15- The prosecution has produced two police personnel, P.W.1, H.C. Sain Singh and P.W.2, Constable Krishna Kumar, who allegedly caught accused Manoj Negi along with Khukhari and brought the deceased to the Hospital. According to P.W.1, Sain Singh when he reached near the Bus at Tapovan Chauraha, passengers were getting down from the Bus. They told him that marpit is going on inside the Bus then he caught accused Manoj Negi along with blood-stained Khukhari and thereafter the accused was carried to the police station and the deceased was brought to Hospital in the same Bus. There is contradiction in the statement of P.W.1, Sain Singh and P.W.2 Krishna Kumar about catching hold of accused Manoj Negi. According to P.W.2, accused Manoj Negi got down from the Bus through front window of the Bus, whereas P.W.1, Sain Singh did not tell that accused Manoj Negi got down from the Bus from a window. He simply said that they did not see the persons getting down from the Bus. P.W.2, further deposed that he was told by the mother of deceased that her son was beaten. He further deposed that a person was fallen down soaked in blood and he was telling 7 that 3-4 persons had beaten him and their names are Rajesh, Suresh, Ramesh. The statement of P.W.1, Sain Singh is that he himself had entered inside the Bus but he did not try to inquire as to who had beaten the deceased. P.W.2, Krishna Kumar also deposed that he had told the name of the deceased but in the inquest report the identity of the deceased has been given as ‘unknown’ person. 16- Presence of P.W.4, Smt. Lajwanti at the place of occurrence also seems to be doubtful. According to Smt. Lajwanti the deceased was brought to Hospital in the Bus of Factory itself but the deceased was admitted in the Hospital as unknown person. Had Smt. Lajwanti been present in the Bus and she had seen the occurrence and then she went to Hospital along with her son in that very Bus of the Factory, she would have certainly told the name of his son and the deceased would not have been admitted in the Hospital as unknown person. Further in the death report time of death of the deceased has not been mentioned. 17- P.W.9, Shravan Kumar, is the conductor of the Bus in question. He has deposed that when he raised alarm there was no police personal at the spot. Police came in the Hospital. This witness has categorically deposed that they had admitted the injured in the Hospital as unknown person. Therefore, the story of arrival of P.W.1, Sain Singh and P.W.2, Krishna Kumar, police personnel, at the spot becomes highly doubtful. The presence of 8 P.W.4, Smt. Lajwanti in the Bus and witnessing the incident is also belied by the deposition of conductor of the Bus P.W.9, Shravan Kumar. P.W.4, Smt. Lajwanti has deposed in her examination-in-chief that 2-3 boys had boarded the Bus and one of them was having Khukhari and the another was having Hockey. This statement of Smt. Lajwanti does not find support from the medical version. P.W.4, Smt. Lajwanti further deposed that Deepak had named Manoj, Ramesh and Rajan amongst the assailants, but according to prosecution story Suresh was also amongst the assailants and this witness has not named him. P.W.4, Smt. Lajwanti also could not name the weapon possessed by the assailant, who was caught by the police. The prosecution case further is that the police personnel had caught accused Manoj Negi along with blood-stained Khukhari, but P.W.4, showed her ignorance about the name of that person and the weapon possessed by him. In view of above evidence, the prosecution story does not seem to be credible. The presence of Smt. Lajwanti mother of the deceased in the Bus and witnessing the incident becomes highly doubtful. Further the arrest of accused Manoj Negi along with blood- stained Khukhari by P.W.1, Sain Singh and P.W.2, Krishna Kumar at the spot is also doubtful. Therefore, the story of arresting of accused Manoj Negi along with blood-stained Khukhari by P.W.1, Sain Singh and P.W.2, Krishna Kumar from the place of occurrence seems to be a concocted story, and the evidence of P.W.4, Smt. Lajwanti and P.W.1, Sain Singh and P.W.2, Krishna Kumar is also not 9 worthy to place reliance on it, as the presence of these witnesses at the spot has not been established by cogent and reliable evidence. 18- So far as the arrest of remaining accused/respondents is concerned, P.W.7, S.I. Govind Singh has deposed that on 17.7.1995 he along with S.O. Ajay Pal Gautam, Constable Brij Bhushan and other police personnel, were on patrolling duty and when they reached at Sahastradhara crossing, then information was received from an informer that accused persons were coming there on scooter. At this information the police party went towards Sahastradhara and when they reached near Nalapani they saw a scooter coming there and three persons were sitting on it and they on seeing them turned the scooter towards Tapovan. On suspicion they chased them. Constable Brij Bhushan told these are the accused who had committed the incident in the Bus. These persons slipped down from the Scooter at the bend of Maglowala jungle and they were caught by the police in the jungle. The prosecution case further is that a country made pistol 12 bore was recovered from the pocket of Rajan and after opening the barrel of the pistol a live cartridge .12 bore was also recovered. The another person told his name Ramesh who was holding a plastic bag in his hand in which a Khukhari was recovered. The third person told his name Rakesh and from the pocket of his pant a knife was recovered. These recovered items were sealed in separate clothes. It is important to mention here that the incident is said 10 to have taken place on 13.7.1995 and the arrest of these persons was made on 17.7.1995, but the police has not made any efforts to search out these accused persons during the period 13.7.1995 to 17.7.1995. Although P.W.7, has tried to explain in his cross-examination that search was also made earlier, but he was unable to tell specific date and time when the police went in search of these persons. The arrest and recovery of country made pistol, Khukhari and knife from these persons also seems to be highly doubtful. No public witness of recovery had been examined to prove the recovery. The site-plan of that place is Ext. Ka.26 and on perusal of the same it reveals that houses of Joseph, Jogendra and Biru are situated near the place of recovery, but no effort was made to pick up a public witness at the time of said recovery. It is also surprising that the accused persons were carrying country made pistol with live cartridge and they did not use the same when they were being chased by the police and they surrendered themselves very easily to the police. 19- Besides above police witnesses, P.W.1, Sain Singh and P.W.2 Krishna Kumar, and P.W.4, Smt. Lajwanti, mother of the deceased, the other two independent witnesses, P.W.5, Mukesh and P.W.9, Shravan Kumar did not support the prosecution case and they have been declared hostile. Hence there remains no cogent and reliable evidence on record to prove the case against the accused/respondents. 11 20- The prosecution story is that accused Manoj Negi was arrested at the spot and the other accused had fled away and these persons were seen by the prosecution witnesses but after arrest of accused Rajan, Ramesh and Rakesh no identification parade was held and the benefit of this lapse on the part of prosecution, would go to the accused/respondents. As the presence of P.W.1, Sain Singh, P.W.2, Krishna Kumar and P.W.4, Smt. Lajwanti at the spot is highly doubtful, hence the story of arrest of accused Manoj Negi by police constables P.W.1, Sain Singh and P.W.2, Krishna Kumar, also becomes highly doubtful. 21- The prosecution has not been able to establish the motive for commission of this crime by the accused/respondents. The complainant Smt. Lajwanti has simply stated in her statement on oath that the accused had old enmity with her son but she could not explain that old enmity between the deceased and accused/respondents and simply by saying that the accused/respondents had old enmity with the deceased cannot be taken as true version. The prosecution could have come forward with the specific motive against the accused/respondents, hence, it can safely be inferred that the prosecution has not proved motive with the accused/respondents for commission of the crime. 22- Further the prosecution story does not find full corroboration from the medical version. 12 According to the autopsy report of the deceased he had sustained all incised wounds which could be caused by sharp edged weapon but no injury of hockey stick was found. The prosecution case is that two accused were having Khukhari and two were having hockey sticks in their hands and all of them had beaten the deceased with Khukhari and hockey sticks, but surprising enough not a single injury of hockey stick was found by the doctor on the person of the deceased. In this way the prosecution story is not supported by the medical evidence in this case. 23- In view of above discussion we find ourselves in full agreement with the conclusion drawn by the trial court, therefore, the appeal lacks merit and is liable to be dismissed. 24- According the appeal is dismissed. The impugned judgment and order passed by the trial court is hereby confirmed. (Nirmal Yadav, J.) (B.C. Kandpal, J.) 06-05-2010 ISB