Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 51 of 2002 Pappa Singh ...…………. Appellant versus State of Uttarakhand ...…………. Respondent Ms. Meena Bohara, Advocate, Amicus Curiae for the appellant. Mr. Amit Bhatt, Addl. Government Advocate, for the State. JUDGMENT Coram : Hon’ble Barin Ghosh, C. J. Hon’ble U.C. Dhyani, J. Per: U.C. Dhyani, J. This appeal has been preferred by the accused- appellant Pappa Singh against the judgement and order dated 7.2.2002 passed by learned Additional Sessions Judge/IInd F.T.C. Nainital in Sessions Trial No. 379/1997 whereby the said appellant was convicted for the offence punishable under Section 2 302 IPC and was awarded imprisonment for life. He was also sentenced to pay a fine of Rs. 5000/-, in default of payment of which, he was directed to undergo six months further imprisonment. 2. In all, four accused persons were put to trial in the court of learned Additional Sessions Judge/IInd F.T.C., Nainital. While three of them were acquitted, the accused appellant Pappa Singh was convicted by the learned trial court. Hence, the criminal appeal. 3. Prosecution story is that on the complaint of one Amar Singh an F.I.R. was lodged at O.P. Shakti Farm Sitarganj in District-Khatima on 22.3.1997 at 8:20 a.m. alleging that on 21.3.1997 at 1:00 p.m. complainant Amar Singh’s son Jitendra @ Chhinder was playing in his house but when he did not return to his house till evening, the complainant made a frantic search for him in the village as well as in the nearby jungle till late midnight. During the course of search, fellow villagers Ranjit Singh s/o Gurdayal Singh and Rajendra Singh, s/o Sher Singh disclosed to the complainant that they had seen Jitendra @ Chhinder with Pappa Singh @ Hoshiyar Singh, s/o Bachan Singh, r/o Pipaliya, District-Udham Singh Nagar. Amar Singh went to the house of Pappa Singh to find the whereabouts of Chhinder, but to no avail. On 22.3.1997 at 7:00 a.m. he found the dead body of Jitender @ Chhinder on the field of one Diwan Singh. 3 4. The complainant had suspected the role of Pappa Singh and Gurnam Singh, both sons of Bachan Singh in his son’s murder. The reason assigned in the F.I.R. is that there is some dispute of land between Bachan Singh and complainant’s sister. On the basis of this complaint the police of O.P. Shakti Farm within the jurisdiction of P.S. Sitarganj, Khatima lodged the F.I.R. as Crime No. 29 of 1997. The distance between the place where the dead body was found and the police outpost is 3 kilometers. 5. After the investigation the Investigating Officer submitted charge sheet against four accused persons for the offences punishable under Section 302/201/34 IPC. 6. Prosecution examined PW1 Amar Singh, PW2 Rajendra Singh, PW3 Ranjeet Singh, PW4 Dr. Chandrashekhar and PW5 Pala Singh. Statements of the accused under Section 313 Cr.P.C. were taken. They have said that they have been falsely implicated in the case. No evidence was adduced in defense. 7. After the trial learned Additional Sessions Judge/2nd F.T.C. Nainital did not find the accused persons Bachan Singh, Satendra and Jeet Kaur guilty of any offence and hence they were acquitted of the charge framed against them. It was only the accused appellant Pappa Singh who was found guilty of the offence punishable under Section 302 IPC because 4 he was last seen with the victim and accordingly he was awarded imprisonment for life and a fine of `5000/-, in default of payment of which he was directed to undergo six months imprisonment. 8. Aggrieved against this order the accused appellant Pappa Singh has preferred this appeal. 9. Heard learned Amicus Curiae for the appellant, learned Additional Government Advocate for the State and perused the record. 10. Let us examine what has been deposed by the prosecution witnesses. PW1 Amar Singh is the complainant. He has said in his examination in chief that the appellant Pappa Singh @ Hoshiyar belonged to his village. The victim Jitendra Singh @ Chhinder was his son. He was aged six and half years. Appellant Pappa Singh had some dispute of land with his (Amar Singh’s) sister Jito Bai, who was a widow. Since Amar Singh used to do pairvi of the case pertaining to land, therefore Pappa Singh was annoyed with him. Elaborating the incident, PW1 Amar Singh said that on 21.3.1997 at 1:00 p.m. when his son Jitender was playing near his house and did not return, he started making search for him in the village as well as in jungle. In the evening villagers Ranjeet Singh and Rajendra Singh disclosed them that when they were sitting in sugarcane centre, they had seen Jitender going along with Pappa Singh. When they went to Pappa Singh’s 5 house to enquire about the same, Pappa Singh was not found there. His son too was not there. The next day on 22.3.1997 at 7:00 a.m. the dead body of his son was found lying on the field of Diwan Singh. He had suspicion that his son has been killed by Pappa Singh appellant. He got a complaint written by one Dara Singh and the said complaint Ex. Ka1 was submitted in Police Outpost-Shakti Farm. 11. In the cross examination, PW1 Amar Singh said that his children were in talking terms with the children of Bachan Singh before this incident. But they stopped talking to each other once the dispute over land arose. He came to know at 3:00 p.m. that his son is not traceable. Gurdayal Singh and Ranjeet Singh told this witness at 7:00 p.m. that they had seen his son going with the appellant Pappa Singh. The same was reported to the police verbally but the police asked him to make a search for the son. The report was lodged the next day at 8:30 a.m. 12. PW2 Rajendra Singh in his examination in chief has said that on 21.3.1997 at around 1:00 p.m. when he and Ranjeet Singh were sitting in the sugarcane centre of village Pipaliya, then they had seen the victim in the company of appellant. When complainant Amar Singh enquired about his son, this witness told him that he had seen Pappa Singh and Chhinder (victim) together at around 1:00 p.m. Rajender Singh too started making a search for Chhinder, but to no avail. 6 13. In the cross examination PW2 Rajender Singh said that the victim was wearing blue pant and cream coloured shirt when he saw him. It is significant to note that this witness has not said in his cross examination that victim was being taken forcibly by the appellant. PW2 Rajender Singh has simply said that Jitender (victim) was walking along with Pappa Singh. Pappa Singh did not catch hold of his hands. Another witness Ranjeet Singh was said to be sitting with PW2 Rajender Singh in the sugarcane centre. Complainant Amar Singh had been to Pappa Singh’s residence at 7:00 p.m. In the cross examination he has said that both these witnesses i.e. Rajender Singh and Ranjeet Singh accompanied the complainant to the appellant’s house. The appellant was not found there. 14. PW3 Ranjeet Singh has said in his examination in chief that he had seen the victim in the company of the appellant on 21.3.1997 at 1:00 p.m. He was sitting in the sugarcane centre. When complainant Amar Singh enquired from him about the victim, he had told victim’s father that he had seen the victim in the company of the appellant. 15. In the cross examination, PW3 Ranjeet Singh has admitted that complainant Amar Singh is related to him. He was sitting in the sugarcane centre in connection with the weighing of sugarcane. Victim was wearing blue pant and sky blue shirt when he 7 had seen the victim. His house is at a distance of 3- 3½ kilometer from PW2 Rajender’s house. 16. Thus it is to be noted here that both the eye witnesses had seen the victim in the company of the appellant from the same place and at the same time. PW3 Ranjeet Singh is distantly related to complainant. There is a distance of 3- 3½ kilometer between PW2 Rajender’s house and PW3 Ranjeet Singh’s house. PW2 Rajender Singh has said that the victim was wearing blue pant and cream coloured shirt when he saw him but PW3 Ranjeet Singh has said that the victim was wearing blue pant and sky blue shirt. Although it is not an important fact but the ‘last seen’ evidence of these two witnesses does not inspire confidence. The quality of the evidence tendered by these two witnesses is not worth accepting. 17. PW4 Dr. Chandrasekhar had conducted postmortem of the deceased on 22.3.1997 at 4:00 p.m. He found the following ante mortem injuries on the body of the victim. 1. Contusion over front of neck horizontally placed just above the thyroid cartilage 3.0 x 1.0 cm in size. 2. A contusion over Rt side neck just below the mandible 2.0 x 1.0 cm in size 8 3. A contusion over Lt side of neck 2.5 cm. below from the angle of mandible size 1.5 x 1.0 cm 4. An abrasion over outer aspect of Lt thigh, midreg 5.0 x 0.3 cm in size 5. A contusion Rt side lower abdomen 3.0 x 3.0 cm in size. 2.0 cm above from the Rt anterior sup. Iliac spine 6. An abraded contusion over back of shoulder. 2.0 x 2.0 cm in size situated at the level of spine of scapula 18. According to the Doctor, cause of death of the victim is due to asphyxia as a result of throttling. He has proved his report Ex. Ka 2. 19. PW5 Pala Singh said that he had seen the victim in the company of appellant and others about four years ago. When he enquired from Pappa Singh whether he was coming for doing the work, Pappa Singh replied in the negative. Next day Chhinder Singh was found lying dead in the village. The testimony of PW5 Pala Singh is too vague to be relied upon. No definite date and time has been given by him in his evidence regarding his meeting with the appellant. The testimony of this witness does not, at all, help the prosecution. 9 20. Learned counsel for the appellant has submitted that the chain of circumstances is not complete. The prosecution has not assigned any fixed time and place regarding the alleged offence. In other words it is not clear as to when and at which place the murder was committed. The witnesses produced by the prosecution are interested witnesses. The F.I.R. is delayed in which the date, time and place of the murder is not shown. The Investigating Officer has not been produced by the prosecution. If the I.O. was not available, secondary evidence could have been produced. The F.I.R. has been lodged only on the basis of suspicion. The direct evidence is not there and the chain of circumstantial evidence is not complete, hence the appellant is entitled to acquittal. Learned Amicus Curiae has also submitted that there is delay in lodging the F.I.R. and the scribe of the complaint has not been produced in evidence and therefore, for the reasons enumerated hereinabove the appeal should be allowed. 21. Learned Additional Government Advocate, on the other hand has submitted that the ‘last seen’ evidence is there against the appellant duly supported by the medical evidence and therefore the conviction against the appellant should sustain. 22. In this case, two witnesses of having ‘last seen’ the victim in the company of appellant have been produced on behalf of prosecution. It is alleged that there is some dispute of land between father of the 10 victim and appellant. The victim was a seven years old boy. It has not come in evidence that the victim was being taken by the appellant forcibly. The victim must be aware of enmity of his father with the appellant. Then why should he walk along with an enemy of the family? Why should he do it? It is the evidence of the father of the victim that the victim stopped talking to the appellant. It has come in evidence that he was going in a normal way. Further, both the witnesses have seen appellant walking with the victim, (while they were) sitting at the same place and at the same time. There is a glaring lacuna in the postmortem report of the victim. It has not been reported by the Doctor that which injury was sustained by the victim inside the neck which caused his death. It has been reported that the victim received contusion. But it has not been reported as to which injury was caused inside the neck that proved fatal to the victim. There is no ligature mark on the neck, meaning thereby the rope had not been used. However, the possibility of causing death by strangulation cannot be ruled out. But the quality of prosecution evidence is too poor to suggest anything. It is directionless. Further it has come in the inquest report (Ext. ka-5) at the 3rd page that the victim was wearing blue coloured shirt and blue coloured pant at the time of death, whereas according to P.W2 Rajendra Singh, he saw the victim wearing blue coloured pant and cream coloured shirt and P.W.3 Ranjeet Singh at the same 11 time saw the victim wearing blue coloured pant and sky blue coloured shirt. At the same time there is no evidence that the victim had opportunity to change his clothes thereafter. 23. The prosecution has only relied upon the ‘last seen’ evidence, but that too is not a reliable piece of evidence. The appellant cannot be held guilty only upon the oral eyewitness account of two witnesses, that too unreliable, that they had seen the victim in the company of the appellant. Chain of circumstances is in complete disarray. The appeal therefore deserves to be allowed. 24. The appeal is therefore, allowed. The conviction and sentence awarded to the appellant Pappa Singh by the trial court vide order dated 7.2.2002 is hereby set aside. The accused / appellant is on bail. He need not surrender. 25. Lower court record be sent back. (U.C. Dhyani, J.) (Barin Ghosh, C.J.) Dt. December 21, 2011. Sanjay