IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Court’s Order whether the case is or not approved for reporting (Chapter VIII, Rule 32(2) (b) Description of Case Government Appeal No. 257 of 2003 (Old No. 140 of 1981) Date of decision :-17-10.2006 A.F.R. (Approved for Reporting) Not approved for reporting Date :-17.10.2006 Initials of Judge Note :- Bench Reader will attach this at the top of the first page of the judgment when it is put up before the Judge for signature. - 1 - HIGH COURT OF UTTARANCHAL AT NAINITAL Government Appeal No. 257 of 2003 (Old No. 140 of 1981) State of Uttaranchal …….Appellant Versus Tej Singh S/o Jasaud Singh R/o village Khwantarhi Patti Bishauna Khan Tehsil Didihat District Pithoragarh …………….Accused-Respondent Date:- 17th October, 2006 Sri H. C. Pandey learned A.G.A. for the appellant-State assisted By M. A. Khan learned A.G.A. Sri M. S. Pal learned counsel for the respondent. Coram: Hon’ble M.M. Ghildiyal, J. Hon’ble J.C.S. Rawat, J. Per Hon’ble J.C. S. Rawat, J. 1) This is a Government Appeal against the judgment and order dated 29.09.1980 passed by Sri B.B.L. Hajelay, the then Sessions Judge, Pithoragarh in S.T. No.33/1979, whereby the respondent-Tej Singh was acquitted under section 302 IPC. 2) Brief facts of the case are that on 24.10.1979 Gopuli Devi PW2 and her husband-Prem Singh (deceased) were in their field at Bujartok. At about 4pm they were weeding grass from their vegetable field. At some distance Pushpa Devi and Ganga Devi PW3 were also cutting grass. There was a Gadhera (small water channel) near the fields. The husband of Gopuli Devi PW3 went to pass motion towards that Gadhera and asked her to go home with vegetables. She, however, did not go home but remained in the field. She started cutting grass and bushes in her field and at that time the sound of gun shot took place and her husband’s words “Oh Ram” fell in her ears. Gopuli - 2 - Devi PW2 then saw towards her husband and saw the accused-respondent with a gun in his hand. At that time Pushpa Devi and Ganga Devi PW3 also reached there and the accused went upwards. Gopuli Devi PW2 Trilok Singh and Dan Singh arrived at the spot with Pushpa. They carried the injured on the back and after arranging a ‘Doli’ they carried him to Kanalichhina hospital where the injured has succumbed to his injures. Thereafter, on 25.10.1979 at about 8AM Trilok Singh PW1 lodged a report before the Patti patwari, Bisna Khan. The police investigated the matter and submitted the chargesheet before the court under section 302 IPC. 3) The respondent-accused was charged under section 302 IPC by the trial court. The accused- respondent denied the charge and claimed the trial. 4) In order to prove its case, the prosecution has examined Trilok Singh PW1. He lodged the report. He had stated that on 24.10.1979 he was at his home. Pushpa Devi came to call him at about 4:45pm and he went with her to Bujartok of village Khwatari where his brother Prem Singh (deceased) was lying wounded unconscious with the gun shot. His Bhabhi Gopuli Devi and Ganga Devi were present near the injured who was unconscious. He was informed about the occurrence by Gopuli Devi PW2. They carried the injured to Kanalichhina where the injured died. In the morning of 25.10.1979 Indra Bahadur (PW6), Patwari also came to the hospital where report Ex.ka.1 was brought to him by Trilok Singh. The prosecution has examined Gopuli Devi as PW2. She was with her husband-deceased on - 3 - the date for incident in her field. Smt. Ganga Devi PW3 alongwith Pushpa Devi reached at the spot immediately after the incident and they saw the accused with a gun in his hand. Deh Ram PW4 was Incharge Asstt. Supervisor Kanungo Kanalichhina. He arrested the accused-respondent and on pointing of the accused the gun used in the incident was recovered. He prepared the fard thereof. Deh Ram PW4 went to Didihat and handed over the accused alongwith sealed gun & fard to Indra Bahadur (PW6), Investigating Officer. Dr. C.P. Singh (PW5) was the medical officer and he conducted the post mortem of the deceased on 25.10.1979. The following ante-mortem injuries were found on the person of deceased:- (i) Four gun shot wounds circular 1/8” in diameter x chest cavity deep on the left side chest upper and outer part margins irregular and inverted. (ii) Sixteen gun shot wounds circular 1/8” in diameter into bone deep on the right side head front and outer part in an area of 8’’ x 6” margins irregular. (iii) Eight sum shot wounds circular 1/8” in diameter and skin deep on the right shoulder joint upper front in an area of 4” x 2” margins inverted and irregular. (iv) Abrasion ¾ ” x 1/8” on the nose outer part oblique. (v) Abrasion ½” x 1/8” on the left side check oblique ½” outer to injury no.4 in the same direction. (vi) Four gun shot wounds circular 1/8” in diameter and into bone deep on the right tigomatic protuberance margins inverted and irregular. (vii) One gun shot wound circular 1/8” in diameter x eye ball deep over the upper lid. Eyeball collapsed. (viii) Eight gun shot wounds circular 1/8” in diameter x chest cavity deep outer right side chest upper part in an area of 6” x 5”. Margins inverted and irregular. - 4 - (ix) One gun shot wound 1/8” in diameter circular x muscle deep on the front of left elbow joint. Margins inverted and irregular. (x) One gun shot wound 1/8” in diameter circular and skin deep outer upper part of abdomen. (xi) Two gun shot wounds 1/8” in diameter circular and bone deep on the front of right knee joint. Margins irregular and inverted. (xii) Eleven gun shot wounds 1/8” in diameter circular and bone deep outer front of left knee joint and front of leg margins irregular. On internal examination of the dead body, one pellet on the right side of head under the skin was found. The doctor found the pleura punctured at the site of gun shot injury. The heart was empty and weighed 25 gm. Semi solid food containing rice and Dal was present. The doctor has opined that the duration of death was one day old. The doctor has proved the post mortem report Ex.ka.5. the doctor has opined that the cause of death was shock and hemorrhage as a result of injuries. 5) The prosecution has also adduced the evidence of Indra Bahadur (PW6). He was the Investigating Officer of this case. Report Ex.ka.1 was brought to him by Trilok Singh PW1. Indra Bahadur PW6 prepared Panchayatnama Ex.ka.8, photo lash Ex.ka.9, challan lash Ex.ka.10 and site plan etc. The investigation was taken up as usual which culminated into the submission of the chargesheet. 6) The statement of the accused-respondent was recorded under section 313 Cr.P.C. The accused- - 5 - respondent has denied the allegations and stated that he has been falsely implicated in this case. 7) On consideration of the entire evidence on record the learned trial court acquitted the accused- respondent from the charge levelled against him. 8) Feeling aggrieved by the judgment and order of the trial court, the State has come up before this Court. 9) It needs to be mentioned there that it is not disputed that the deceased met a homicidal death on account of injuries sustained by him on the date of occurrence. The prosecution has adduced the evidence of Dr. C. P. Singh (PW5), who conducted the post mortem of the deceased. The doctor has proved the post mortem report Ex.ka.5. In the opinion of the doctor, the death was caused due to shock and hemorrhage as a result of ante-mortem injuries sustained by the deceased. 10) Now, we have to examine as to whether the accused-respondent was responsible for causing the injuries to the deceased or not. 11) It needs to be mentioned here that the High Court as an appellate court has full power to review the evidence upon which the acquittal is found, still while exercising such an appellate power in a case of acquittal the appellate court should not only consider every matter on record having a bearing on the question of fact and the reasons given by the court below in respect of its order of acquittal. It must express its reason in the judgment which led it to hold - 6 - that the acquittal is not justified. The appellate court must also bear in mind the fact that the trial court had the benefit of seeing the witness in the witness box and the presumption of innocence is not weakened by the order of acquittal, and in such cases if two reasonable conclusion can be reached on the basis of evidence of record the High Court should not disturb the finding of trial court. The High Court should be slow in reversing the order of acquittal unless there are strong and good grounds to interfere the order of acquittal by the trial Judge. 12) The prosecution has adduced the evidence of Gopuli Devi PW2 and Ganga Devi PW3. Gopuli Devi PW2 has sated in her evidence that on the date of incident she was with her husband-deceased in the field at Bujartok. At some distance Pushpa and Ganga were cutting grass. Gopuli Devi’s husband – the deceased went to ease himself in the Gadhera. Gopuli Devi PW2 was cutting grass and bushes in the fields. She heard the sound of gun shot and her husband’s words ‘Oh Ram’. She then saw towards her husband and saw the accused-respondent with a gun. Gopuli Devi PW2 then told the accused-respondent that if he had any enmity he should have filed a suit but should not have killed her husband in this manner. At that time Pushpa Devi and Ganga Devi PW3 also reached there and the accused went upwards. She then sent Pushpa Devi to give information at home and Trilok Singh (PW1) and Deh Singh arrived with Pushpa at the spot. They carried the injured on the back and after arranging a ‘Doli’ they carried him to Kanalichhina hospital where the injured has succumbed to his injuries. Gopuli Devi PW2 had further stated that their relations with the - 7 - accused-respondent were extremely bad. The sister of accused was married to her cousin. That cousin committed suicide. The sister of accused to infested with ghost. Her old father told Tej Singh-accused to send his sister to her parental house so that she would also remain happy and Tej Singh would also remain happy. But the accused Tej Singh was enjoying the pension of the sister and because of this reason the accused-respondent was annoyed with her husband. The prosecution has also examined Ganga Devi PW3. She had sated that on the date of incident she was cutting grass at Bujartok and Pushpa was with her. She also heard the noise of gun shot. On hearing the sound she reached at the spot where she saw Gopuli Devi stating to the accused “Tej Singh Tune Mere Pati Ko Goli Se Mar Diya.” Ganga Devi PW3 also went at the place of occurrence and saw injuries on the person of her Jeth (deceased) and found him wounded. Ganga Devi PW3 had further stated in her evidence that she had only a fleeting glimpse of the accused-respondent from the back side. 13) These two witnesses are said the present at the time of incident. But none has seen to shoot Prem Singh-deceased by their own eyes. According to Gopuli Devi PW2, she heard the sound of gun shot and the words “Oh Ram” uttered by her husband. She immediately rushed to the place of occurrence where she saw the accused standing with a gun at a distance of 3 paces from the injured. Ganga Devi PW3, who is the wife of the brother of the deceased, also heard the noise of gun shot and cry of Gupuli Devi. Ganga Devi PW3 had stated that she had a glimpse of the accused- Tej Singh from back side when the accused was going - 8 - on the ‘Rasta’ towards his village. Both the witnesses have claimed that they were present near the place of occurrence. They reached at the spot immediately after the incident and they had seen the accused with a gun. 14) Learned A.G.A. for the appellant-State contended that the evidence of Gopuli Devi PW2 and Ganga Devi PW3 is sufficient to prove the guilt of the respondent- accused. Both these witnesses are natural witnesses and they had no occasion to falsely implicate the accused-respondent in the said case. Learned counsel for the respondent-accused refuted the contention and contended that Gopuli Devi PW2 and Ganga Devi PW3 had not seen the accused shooting the deceased by gun. They saw the respondent-accused with a gun in his hand and the accused was going on Rasta and the said circumstances are not sufficient to convict the respondent-accused. It has come in the evidence of Gopuli Devi PW2 that she heard the sound of gun shot and the words uttered by her husband. The deceased had uttered the following words to his wife:- “Kaman Ki ma Mere Goli Lagi Hai.” This statement shows that the injured was conscious after sustaining the gun shot injuries. It is also in the evidence that he got up from the place of occurrence and he tried to climb from Gadhera to the field but he fell down. But it is surprising that if the respondent-accused had fired upon the injured, the deceased should have clearly stated to his wife that the respondent-accused had fired the gun shot. The deceased did not utter any word implicating the respondent-Tej Singh, though he had uttered other things. It would have been the natural course to be adopted by the deceased to tell - 9 - the name of the culprit to his wife. Thus, it shows that the participation of the respondent-Tej Singh in the said crime is doubtful. 15) It was further pointed out by the learned counsel for the respondent-accused that Tej Singh-respondent was standing near the injured. According to Gopuli Devi PW2, the distance between the injured and the respondent-accused was about 3 paces. At one place, Gopuli Devi PW2 had stated that it was about one feet. This shows that even after the shooting to the injured the respondent remained standing at the place of incident. It is natural when a heinous crime is committed by any person he would like to escape from the place of occurrence. Nobody would like to remain standing even after the cry of the injured. It is also clear to the respondent that the wife of the deceased and other ladies were working nearby the place of incident. In such a situation, the culprit would like to flee away from the place of occurrence and he would not like to stand nearby the injured. Thus, the story as advanced by Gopuli Devi PW2 is doubtful. Apart this, the postmortem report reveals that there were a number of gun shot injuries on the person of the deceased. 11 pellets were recovered from the different part of the body of the deceased. There was no burning and tattooing sign on the dead body of the deceased. Thus, the gun shot had not been fired from a close distance. Dr. C.P. Singh PW5 had stated in his cross examination that the shot had been fired from a distance of more than 4-5 feet. If the respondent- accused had fired from a long distance there was no occasion to come near the injured. Thus, the entire story as narrated by the prosecution becomes doubtful. - 10 - 16) Learned counsel for the respondent-accused pointed out certain discrepancies and variations in the evidence of Gopuli Devi PW2 and Ganga Devi PW3. Gopuli Devi PW2 had stated in her deposition for the first time before the court that the sister of Prem Singh-deceased was married to the cousin of respondent’s wife. The husband of his widowed sister died 11 years ago and she was getting pension from the department. The deceased told Tej Singh-accused to send his widowed sister to her parental house so that she would also remain happy. But the accused Tej Singh was enjoying the pension and because of this suggestion the accused-respondent was annoyed with the deceased. Gopuli Devi PW2 had stated that there was an enmity on this ground and as such the deceased was shot by the accused-respondent. Gopuli Devi PW2 had stated this fact for the first time before the court in her deposition. Gopuli Devi PW2 had not even stated this fact in her statement recorded under section 161 Cr.P.C. However, has had clearly stated in her statement recorded under section 161 Cr.P.C. that no enmity was existed between the deceased and the respondent- Tej Singh. Gopuli Devi PW2 had stated under section 161 Cr.P.C. that they are co-lateral within two or three pedigree. Thus, this evidence about the enmity was highly unbelievable. If there was enmity between the parties this fact should have been stated by Gopuli Devi PW2 in her statement recorded under section 161 Cr.P.C. It has come in the evidence of Gopuli Devi PW2 that when she saw the accused standing nearby her husband she told the accused- respondent that if he had any enmity he would have filed a suit but should not have killed her husband in - 11 - this manner. However, she did not tell this fact to the Investigating Officer in her statement recorded under section 161 Cr.P.C. If there was a conversation in between the respondent and Gopuli Devi PW2 it was an important piece of evidence which must have been told to the Patwari under section 161 Cr.P.C. Thus, this fact is also an afterthought. Gopuli Devi PW2 had stated in her statement recorded under section 161 Cr.P.C. that when she was on her field she saw the accused armed with gun coming out from the side of the Rasta from a bush. Gopuli Devi PW2 also told the I.O. while preparing the Fard of the site that after some time she heard the cry of her husband say ‘Oh Ram’ and simultaneously she saw the respondent-accused going through the ‘Rasta’ towards the forest with his gun in hand. When she appeared in the witness box she denied that she had given such statement to the I.O. 17) Ganga Devi PW3 had stated in her statement that Gopuli Devi PW2 had stated to Tej Singh after the incident that as to why he has fired the gun shot upon her husband. She had stated in her evidence that she had stated this fact to Indra Bahadur (PW6), Patwari but the Patwari did not record this fact in her statement. She further stated that she told Indra Bahadur PW6, patwari that Tej Singh-respondent had a gun in his hand but she cannot explain as to why the Patwari has not written the same in her statement. The witnesses had no enmity with the I.O. and there was no occasion for the I.O. to record the incorrect statement of the witnesses. In these circumstances there is an improvement in the story narrated by the prosecution. Ganga Devi PW3 had only seen the glimpse of the accused from the back side. It is the - 12 - settled position of law that some discrepancies are bound to be there in each and every case which should not weigh with the court so long it does not materially affect the prosecution case. In case discrepancies pointed out are in the realm of pebbles, the court should throw it, but if the same are boulders, the court should not make an attempt to jump over the same. The contradictions and omissions as pointed out above are not in the realm of pebbles. These are such contradictions which materially affects the prosecution case. These are the boulders and we cannot attempt to jump these boulders. The contradictions and omissions as pointed above leads to take an inference that the evidence of Gopuli Devi PW2 and Ganga Devi PW3 is not credible and cogent. 18) Learned counsel for the respondent contended that there was delay in lodging the FIR. The FIR is very important document and the prompt FIR gives the confidence that it is a correct version and the facts which have been mentioned therein are correct. If the FIR has been lodged by undue delay, it should have been properly explained at the time of lodging the FIR. The delay in lodging the FIR shows that it was the outcome of due consultation or deliberation. FIR in a criminal case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstances in which the crime was committed, including the names of the actual culprits and the parts played by them, the names of the eye witnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. - 13 - On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. In the case in hand, the incident took place on 24.10.1979 at about 4PM and the death took place in the night. The report was lodged on the next day i.e. 25.10.1979. the distance between the Patwari Chowki and the hospital was about 4 km. It is admitted to Trilok Singh PW1 that the report was written in the evening of 24.10.1979 in the hospital itself but he did not mention the date on that day. He wrote the date on the next date. It is admitted to him that Kanoongo headquarter was about 25 yards upwards from the hospital where the dead body was kept. The matter should have been reported to the Kanoongo immediately after the incident or immediately after the death of the deceased. There is a delay in lodging the FIR and only explanation which could be gathered from the evidence is that Trilok Singh PW1 had stated that Patti Patwari had no headquarter at Kanalichhina and it was about 4 km from Kanalichhina. He thought that it was necessary to lodge the report to the Patti Patwari at the first instance. It is also in the evidence that in the morning of 25.10.1979 the Patwari-Indra Bahadur (PW6) himself came to the hospital and the report was lodged by Trilok Singh PW1. Trilok Singh PW1 has also admitted that after arrival of Indra Bahadur (PW6) Patwari he wrote the report on the dictations of the patwari. It is further revealed that there is a delay in lodging the report and it cannot be ruled out that there are no embellishment and exaggerations in the FIR. Thus, this delay is fatal to the prosecution. - 14 - 19) It is transpired from the record that the discovery of gun was made at the behest of the accused- respondent. The respondent-accused went to Kanoongo to surrender himself and stated that he had concealed the gun in the field. He had told the Kanoongo that he has concealed the gun for the purpose of safety. The said gun was sent to the ballistic expert for the examination. The ballistic expert has reported that the fire had been made from the gun, but it is not stated by him that how long back this gun had fired the gun shot. It is not in the report that cartridges which have been fired from this gun had wounded the deceased. The ballistic expert was not produced in the evidence also. The gun was recovered on 31.10.1979. It