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Judgment
This appeal, preferred u/s 378 of Code of Criminal Procedure, 1973 (for short Cr.P.C.) is directed against judgment and order dated 30.07.1999, passed by First Additional Sessions Judge, Haridwar, in Sessions Trial No. 20 of 1996, whereby said court has acquitted the respondents Pramod Kumar and Indra Pal Singh from the charge of offence punishable u/s 302 read with Section 34 of Indian Penal Code, 1860 (for short IPC).
Heard learned Counsel for the parties and perused lower court record.
Prosecution story, in brief, is that in intervening night of 6/7.08.1995, P.W.3 Babli lodged a first information report (for short F.I.R.) that his father Oma (deceased) was sleeping after having his meals in his house in Village Brahampur, within the limits of Police Station Manglore, Tehsil Roorkee, District Haridwar. At about 10:30 P.M., on that day the complainant heard sound of fire and rushed with his brother Leelu, and cousin Naresh towards ''BAITHAK'' (sitting room). They saw in the light of a lamp that Oma, was in pain, who had suffered fire arm injury on his left thigh. Soon thereafter Oma succumbed to the injury. However, no one else was seen around Oma, nor he (Oma) had any enmity with anyone. It is also mentioned in the F.I.R., that Oma used to take liquor. On the basis of the report (Ex. A12) lodged by P.W.3 Babli who got it scribed from P.W.6 Sunil Kumar, a crime No. 181 of 1995, was registered at Police Station Manglore against unknown persons relating to offence punishable u/s 302 IPC. Necessary entry (Ex. A2) was made in the General Diary, and check report (Ex. A1) was prepared. Investigation was taken up by P.W.4, Sub-Inspector Anil Raghav. The police rushed to the spot, and took dead body of the deceased in their possession, and prepared inquest report (Ex. A3) in the night itself. Other necessary papers, sketch of the dead body (Ex. A4), police form No. 13 (Ex. A5), letter to the Chief Medical Officer (Ex. A7), and sample seal (Ex. A8) were also prepared. The dead body was sent in a sealed condition for post-mortem examination. P.W.5 Dr. R.C. Nautiyal, conducted post-mortem examination on the dead body of the Oma on 07.08.1995, at about 3:00 P.M. He recorded fire arm wound of entry as ante-mortem injury, and prepared autopsy report (Ex. A1). The Medical Officer opined that the deceased had died due to shock and hemorrhage due to fire arm injury. The Investigating Officer interrogated the witnesses, and arrested the accused/respondents Pramod, and Indra Pal, as witness Kaliram (P.W.2) disclosed that the two accused had made extra judicial confession of the commission of murder. P.W.7 Sub-Inspector R.P. Singh, subsequently took over the investigation, and submitted charge sheet (Ex. A14) against the two accused/respondents namely Pramod, and Indra Pal for their trial in respect of the charge of offence punishable u/s 302 read with Section 34 IPC.
The Chief Judicial Magistrate, Roorkee, on receipt of charge sheet, and after giving necessary copies to the accused as required u/s 207 Cr.P.C., appears to have committed the case to the court of sessions for trial. Learned Additional Sessions Judge, Haridwar, on 20.07.1996, after hearing the parties, framed charge of offence punishable u/s 302 read with Section 34 IPC, against both the accused Pramod and Indra Pal, who pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W.1 Man Singh, P.W.2 Kali Ram, P.W.3 Babli (complainant), P.W.4 Sub-Inspector Anil Raghav, who started investigation, P.W.5 Dr. R.C. Nautiyal, who conducted post-mortem examination, P.W.6 Sunil Kumar, and P.W7 Sub-Inspector R.P. Singh. Oral and documentary evidence was put to the accused u/s 313 Cr.P.C., in reply to which they simply stated that they had no knowledge of the circumstances brought on record by the prosecution. Accused Pramod further pleaded that he had no house near the place of incident and he lives at a distance of two furlong, which is too far from the place of incident. However, no evidence in defence was adduced. The trial court, after hearing the parties, found that the prosecution has utterly failed in proving the charge of offence punishable u/s 302/34 IPC, against the accused, and acquitted them from the charge. Aggrieved by said judgment and order dated 30.07.1999, this appeal was filed by the State before Allahabad High Court on 28.10.1999, the appeal is received by this Court u/s 35 of U.P. Reorganization Act, 2000 (Central Act 29 of 2000) for its disposal. In the year 2006, leave was granted and the appeal was admitted. Lower court record was summoned. Accused/respondents were already represented through their counsel.
Before further discussion, we think it just and proper to mention the ante mortem injury found by Dr. R.C. Nautiyal at the time of post-mortem examination on the dead body of Oma on 07.08.1995, at 3:00 P.M. Said ante-mortem injury is being reproduced below from autopsy report (Ex. A11):
(i) Fire arm wound of entry 10cm below umblicus, and 5cm from left illiacrest. Measuring 3.5cm X 2.5cm X abdominal cavity deep, oval shaped, margins inverted, skin around the wound is scorched and tattood, direction is left to right obliquely in the left side abdomen 10cm below umblicus large intestine, and blood coming out from wound.
(ii) Right ilium and ischial bone fractured. Bullet (size 3cm X 0.8cm of brass and lead) is embeded in the right ilium bone.
The Medical Officer has opined in the autopsy report that the deceased had died of shock and hemorrhage due to the fire arm injury. The above medical evidence clearly suggests homicidal death of Oma. Now this Court has to examine whether the prosecution has proved on the record that accused/respondents Pramod and Indra Pal have committed murder of Oma or not.
It is a case of circumstantial evidence. Only two circumstances have been shown on record. The first is the extra judicial confession. P.W.2 Kali Ram has stated that accused/respondents Pramod, and Indra Pal came to him and told him that they have committed blunder, and they be saved. When this witness asked as to what was the blunder, the accused/respondents told him that they had fired. The witness does not disclose who was fired by the accused/respondents. However, he has stated that accused/respondents wanted to purchase the house of Oma (deceased). In the cross-examination he states that accused/respondent Indra Pal never met him. P.W.2 Kali Ram does not disclose as to what was the occasion and for what accused/respondents made extra judicial confession. He (P.W.2) has disclosed that he was a labour. In our opinion he could not have any influence over the police to save the accused. It is pertinent to mention here that the names of the accused/respondents were not even mentioned in the FIR. The testimony of this witness is not corroborated from any other evidence on record, and his statement is rightly disbelieved by the trial court.
P.W.2 Man Singh states that he saw accused/respondents Pramod, and Indra Pal in the night and Pramod was armed with country made pistol, and Indra Pal with lathi. He further states that they were talking that they have disposed of. This witness has further stated that Pramod and Indra Pal wanted to purchase the house of Oma who did not agree to sell it. We have scrutinized the testimony of this witness. Had P.W.1 Man Singh seen the accused/respondents as stated by him. There should have been no difficulty for the complainant Babli to name accused/respondents Pramod and Indra Pal in the FIR. In the cross-examination, P.W.1 Man Singh has stated that he had immediately informed Babli, Leelu, and Naresh relating to the fact that he saw Pramod with the country made pistol. Cross-examination of this witness further shows that he was interrogated on the same day but he did not disclose names of Pramod and Indra Pal to the Investigating Officer. He appears to have disclosed said fact to the Investigating Officer after the period of more than one month. As such, the testimony given by this witness is shaky and doubtful.
As far as second circumstances is concerned, P.W.3 Babli, complainant, has simply stated that in the fateful night at about 10:30 P.M., he heard sound of firing and rushed to the BAITHAK where he found his father Oma, injured. The witness further states that there was no light in the house. He has proved the FIR lodged by him. In his statement there is nothing incriminating connecting accused/respondents Pramod and Indra Pal regarding commission of murder of Oma. P.W.6 Sunil Kumar has scribed in the report and he is a formal witness who has proved FIR (Ex. A12). So far as the motive of commission crime is concerned had it been a fact that accused/respondents Pramod and Indra Pal wanted to buy the house of Oma to which he did not agree, the complainant would not have mentioned in the FIR that deceased has no enmity with anyone.
Having reassessed evidence on record, we concur with the view taken by the trial court that prosecution has utterly failed to prove charge of offence punishable u/s 302/34 IPC against the accused/respondents Pramod and Indra Pal/Therefore, this appeal is liable to be dismissed. The same is dismissed.