IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 780 of 2001 (Old No. 2203 of 1991) 1. Vindhyanchal S/o Sri Samaru. 2. Manogi S/o Sri Sunder. 3. Rajesh S/o Sri Vindhyanchal. 4. Darshan S/o Sri Sunder All residents of Village Bagha Majra (Sala Majra), P.S. Madhodanda District Pilibhit. …………Appellants Versus State of U.P. ……….… Respondent. Shri S.K. Mishra, learned counsel for the appellants. Shri Amit Bhatt, learned A.G.A. for the State. Coram: Hon’ble Prafulla C. Pant, J. Hon’ble Dharam Veer, J. Oral;- Hon’ble Prafulla C. Pant, J. This appeal, preferred under Section 374 (2) of Code of Criminal Procedure, 1973, is directed against the judgment and order dated 19.11.1991, passed by learned IIIrd Additional Sessions Judge, Nainital, in Sessions Trial No. 118 of 1990, whereby appellants- Vindhyanchal, Manogi, Rajesh and Darshan, are convicted under Section 147 and under Section 302 read with Section 149 I.P.C. of Indian Penal Code, 1860 (for brevity herein after referred as I.P.C.), and each one of the convict/appellant is sentenced to rigorous imprisonment for a period of three months under Section 147 I.P.C., and imprisonment for life under Section 302 read with Section 149 I.P.C. 2. Heard learned counsel for the parties and perused the entire record. 3. Prosecution story in brief, is that on 27.10.1989, at about 9:15 a.m., complainant Chandrika Prasad (P.W. 1) lodged First Information Report (Ext. A-1) with police station Khatima with the allegations that his son Shambhu Nath (deceased) got married on 15.05.1989 to one Shanti, daughter of accused/appellant- Vindhyanchal. The accused/appellant vindhyanchal and his son got suspicious about the character of Shanti for she had a pregnancy of five months. On 14.08.1989, Shanti went to her parents house whereafter complainant and his son, did not call her back. On this, parents of Shanti and her brother pressurised the complainant and his son to accept Shanti in their house as wife of Shambhu Nath, who was a student of Class XIIth in Ram Inter College, Pilibhit. On the day of incident, i.e. 26.11.1989, P.W. 2 Prabhu Nath, another son of the complainant, developed pain in his abdomen and he was taken by complainant-Chandrika Prasad (P.W. 1) to Dr. Bhuwaneshwar (son-in-law of the complainant), who was a medical practitioner. Meanwhile, Shambhu Nath (deceased) brother of the complainnt also reached there. After giving Prabhu Nath some treatement, all the four Shambhu Nath, Prabhu Nath, Bhuwaneshwar and the complainant, started going towards Village (Diya) of the complainant. At about 11:00 p.m. in the night, when they reached near paddy field, accused/appellants-Vindhyanchal, Rajesh (S/o Vindhyanchal), Darshan and Manogi, along with three others, armed with lathies and iron rods, surrounded Chandrika Prasad, and his son and son-in-law. The complainant was asked by them to accept Shanti as his daughter-in-law to which he did not agree. On this, according to the prosecution, the accused/appellants, caught hold of Shambhu Nath and started giving him beating. Accused/appellant Manogi, roped neck of Shambhu Nath with a belt and consequently, he died, It is stated in the First Information Report that the complainant was having torch and he shouted for help but no one turned up. Due to fear, complainant could not lodge First Information Report in the night and on the next morning, First Information Report (Ext. A-1) was lodged by him. 4. Police registered the crime No. 519 of 1989, under Sections 147, 149, 302 I.P.C. against the accused/appellants – Vindhyanchal, Rajesh, Darshan, Manogi and their unkown associates. P.W. 4 Sub- Inspector Satyavir Singh, investigated the crime. Sub- Inspector I.S. Jafri went to the spot and after taking the dead body into possession, prepared the inquest report (Ext. A-3). He also prepared police form No. 13 (Ext. A-8), sketch of the dead body (Ext. a-9) and letter to the Chief Medical Officer, requesting for post mortem examination. P.W. 5 Dr. Vijay Gairolla, who was E.N.T. surgeon in District Hospital, Pilibhit, conducted the post mortem examination on the dead body of Shambhu Nath on 28.10.1989 and prepared report (Ext. A-13). The Investigating Officer who inspected the spot prepared the site plan (Ext. A-11). He also took into possession the belt found near the incident and the blood stained soil from the spot and prepared memorandum (Ext. A-4 and Ext. a-5). After interrogating the witnesses and completing the investigation, a charge sheet (Ext. A-12) was filed by the Investigating Officer against all the four accused namely, Vindhyanchal, Manogi, Rajesh and Darshan for their trial in respect of the offences punishable under Sections 147, 149 and 302 I.P.C. 5. Magistrate, on receipt of the charge sheet, after providing necessary copies, as required under Section 207 Cr.P.C., committed the case to the Court of Sessions for trial. Learned Sessions Judge, Naintial, appears to have transferred the case for trail to Additional Sessions Judge, Nainital. On 21.06.1990, after hearing the parties, the trial court framed charge of offence punishable under Section 147 and that of one punishable under Section 302 read with Section 149 I.P.C. against all the four accused namely, Vindhyanchal, Manogi, Rajesh and Darshan, who pleaded not guilty and claimed to be tried. On this, prosecution, got examined P.W. 1 – Chandrika Prasad (complainant and father of deceased and an eye- witness), P.W. 2 Kewal (witness of inquest report), P.W. 4 Sub-Inspector Satyavir Singh (Investigating Officer), P.W. 5 Dr. Vijay Gairolla (who conducted autopsy on the dead body of the deceased) and P.W. 6- Dr. Hemlata Pal (who medically examined Shanti Devi, W/o deceased). The entire oral and documentary evidence was put to the accused by the trial court under Section 313 Cr.P.C. to which the accused alleged the same to be false and pleaded that they have been falsely implicated in the crime. However, no evidence in defence appears to have been adduced by the accused. The trial court after hearing the parties found all the four accused, namely Vindhyanchal, Manogi, Rajesh and Darshan as guilty of offences punishable under Section 147 and one punishable under Section 302 read with Section 149 I.P.C. After hearing on sentence, each of the convict was sentenced to undergo rigorous imprisonment for a period of three months under Section 147 I.P.C. and to imprisonment for life under Section 302 read with Section 149 I.P.C. Aggrieved by said order dated 19.11.1991, passed by learned IIIrd Additional Sessions Judge, Nainital, in Sessions Trial No. 118 of 1990, the convicts filed this appeal before Allahabad High Court on 26.11.1991, where it was admitted. This appeal is received by transfer to this Court under Section 35 of U.P. Reorganisation Act, 2000, for its disposal. 6. Before further discussions, it is pertinent to mention here the ante mortem injuries found on the dead body of the deceased by P.W. 5 Dr. Vijay Gairola, who conducted post mortem examination on 29.10.1989:- 1. Contusion on right forehead and right side of and around right eye size 8.0cm X 7.0cm. 2. Contusion on left forehead and left eyelid size 7.0cm X 5.0cm. 3. Abraded Contusion infront part of neck and the sides from left jaw to the right in an area of 14cm X 2 1/2 cm. Clotted blood present. Hyoid bone found fractured. In the internal examination, the third and fourth ribs were found fractured in the front. According to the Medical Officer, who conducted post mortem examination and prepared the autopsy report (Ext. A- 13), cause of death was asphyxia, as a result of strangulation. 7. Two eye-witnesses are produced by the prosecution story before the trial court in support of the prosecution story. Both of them, P.W. 1 Chandrika- complainant (father of the deceased), and P.W. 2 Prabhu Nath (brother of the deceased), have stated that on the day of the incident, pain developed in the abdomen of Prabhu Nath and complainant Chandrika took Prabhu Nath to Dr. Bhwaneshwar (son-in-law of the complainant) at about 9:30 p.m. Meanwhile Shambhu Nath (deceased), brother of Prabhu Nath also reached there. At about 11:00 p.m., all the four namely P.W. 1 Chandrika P.W. 2 Prabhu Nath, Dr. Bhuwaneshwar and Shambhu Nath (deceased) proceeded for Village Diya. At about 11:00 p.m. near a paddy field, accused appellants Manogi, Vindhyanchal, Rajesh and Darshn, along with three other surrounded the above four. They asked Chandrika to accept Shanti in their house as his daughter in law to which he did not agree. On this, accused caught hold of Shambhu Nath and started giving him beating with lathies and dragged him to a drain. P.W. 1 Chandrika and P.W. 2 Prabhu Nath, have stated that Manogi with the help of a belt strangulated Shambhu Nath. Both the witnesses have stated that they indetified accused in the light of the torch, they possessed. 8. Learned counsel for the appellants assailed impugned judgment and order, passed by the trial court, firstly on the ground that the post mortem report (Ext. A-13) shows no ligature mark mentioned in the ante mortem injuries but concludes that death has been caused due to asphyxia as a result of strangulation. However, injury No. 3 mentioned in ante mortem injuries does indicate ligature mark. We have examined the record and found that there is indeed other discrepancy apparent on the record. Sketch of the dead body (Ext. A-9) does not show any ligature mark on the neck, rather it is mentioned that eyes were burst out (AANKHEIN PHOOTEE). However, in the post mortem examination report (Ext. A-13) there is no mention of eyes being burst out, rather it is mentioned that eyes were closed. As such, it creates doubt as to the manner the decased is said to have been assaulted. It is not explained by the prosecution from where the accused/appellant Manogi got belt by which the strangulated the deceased, particularly when he is said to have been armed with sariya, as mentioned in the First Information Report. It is pertinent to mention here that the belt which is said to have been recovered from spot was not produced in the court. 9. Secondly, from the First Information Report (Ext. A-1) itself it is clear that accused belonged to Village Sela within the limites of P.S. Madho Tanda of District Pilibhit, while the incident has taken place in Village Diya whtin the limits of P.S. Khatima, District Nainital (now part of Udham Singh Nagar). The prosecution has not explained the fact how the accused/appellants belonging to a different district came to know of Shambhu Nath (deceased) and his father being in paddy filed where the incident has taken place at about 11:00 p.m. in the night. Had the incident taken place in the village of the accused or in the abadi area of village of the deceased, it could not have created reasonable doubt but there is nothing on the record that the accused/appellants had knowledge of Prabhu Nath being ill on the date of the incident and coming through paddy filed at 11:00 p.m. with his father and brother. As such, non-explanation of unusual presence of the accused/appellants at the place of the incident creates a reasonable dobut as to the manner in which P.W. 1 Chandrika and P.W. 2 Prabhu Nath have stated the incident to have taken place. 10. Third ground on which the prosecution story, as narrated by above two witnesses appears to be doubtful is that if the incident had taken place in the manner they have described, the natural conduct on the part of the witnesses, who are close relative of the deceased should have been to take Shambhu Negi (deceased) after the incident either to hospital or if they were convinced that he had died, they would have taken the dead body to their house. However, for whole of the night, they did not bother either to take the body to their village-Diya which is said to be a distance of 1 Km, nor anyone in the village was informed about such gruesome incident. 11. For the reasons, as discussed above, we are of the view that the prosecution has failed to prove the charge against the accused/appellants beyond reasonable doubt and the trial court has erred in law in holding them guilty of charge of offense punishable under Section 147 I.P.C. and one punishable under Section 302 read with Section 149 I.P.C. In our opinion, in the circumstances, the accused/appellants were entitled to benefit of reasonable doubt in the prosecution story. 12. Therefore, the appeal is allowed. The impugned judgment and order dated 19.11.1991, passed by learned IIIrd Additional Sessions Judge, Nainital in Sessions Trial No. 118 of 1990, is set aside. Accused/appellants-Vindhyanchal, Manogi, Rajesh and Darshan, are acquitted of charge of offences punishable under Section 147 and one punishable under Section 302 read with Section 149 I.P.C. Sentences awarded to them by the trial court are also set aside. The appellants are acquitted of the charge of offences punishable under Section 147 and 302 read with Section 149 I.P.C. (Dharam Veer, J.) (Prafulla C. Pant, J.) Dt: 14.02.2008 Sweta