STATE Vs. KAILASH

JUDGEMENT

(1.) THIS appeal, preferred under Section 378 (1) of Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr. P. C. , is directed against the judgment and order dated 04-04-1990 passed by Additional Sessions Judge, Dehradun, in Session Trial No. 49 of 1989, State Vs. Kailash & others, whereby the learned Addi tional Sessions Judge has acquitted the Respondent Nos. 1 to 3 namely Kailash, Vijai Prakash alias Bijji and Arun alias Gullu respectively for an offence punishable u/s 302 r/w 34 of Indian Penal Code, 1860 (here in after to be referred as I. P. C.) 2, Respondent No. 3 Arun alias Gullu is reported to have died during the pendency of the appeal. C. J. M. , Dehradun vide his letter dated 22-8-2003 has informed that the Respondent No. 3 Arun alias Gullu had died before 10 years. Hence appeal against Respondent No. 3 Arun alias Gullu stands abated. Respondent No. 4 Kaloo alias Ramesh had died during the pendency of the trial, hence the case against him was abated during trial. 3. In brief the prosecution case is that on 04-12-1987 in the morning, Brahmanand went to village Mothrowala for seeing his ailing daughter. Then the persons from his street (Mohalla) came and informed that his son Ramesh was shot dead at about 11:00 A. M. at Kanwali Road near Bindal river on 4-12-' 1987 and his dead body was lying there. Brahmanand reached on the spot and saw that the dead body of his son was lying in the river. Some persons told him that Kailash, Kaloo, Vijji and Gullu had fired upon his son. THIS murder took place at Kanwali road near Bindal Bridge, P. S: Kotwali, Dehradun. Brahmanand gave a written report at PS. Kotwali, Dehradun and FIR Ex. Ka-1 was lodged at PS. Kotwali, District Dehradun. On the basis of this FIR, Constable Suresh Tags prepared a Chik FIR i. e. Ex. Ka-19 and the entry was made in the G. D. , the copy of G. D. Ex. Kal4. THIS report was lodged in the police station at 12:15 P. M. on 4-12-1987 and the distance of the police sta tion from the place of occurrence as shown in the FIR is 3 Kms. The investi gation was entrusted to Sub-Inspector Y. R Singh who has started the investi gation on the same day i. e. on 4-12-1987. Near the dead body, he has re covered 2 Khoka cartridges and from the possession of the deceased Ramesh, one country made pistol 12 bore and 4 live cartridges 38 Bore were recovered. The Fard in this regard was prepared on the spot, i. e. Ex. Ka-3. From the pocket of the shirt of the deceased Ramesh, a note of Rs. 5/-was recovered by the police and a Fard was prepared on the spot for that purpose, i. e. Ex. Ka-4. The plain earth and the blood stained earth was taken from the spot and that was sealed in separate boxes and the Fard was pre pared on the spot, i. e. Ex. Ka-5. Near the dead body, one scooter and HMT Wrist. watch was also recovered by the I. O. and a Fard was prepared on the spot, that Fard is Ex. Ka-6. The inquest report was prepared by the I. O. on 4- 12-1987, that inquest report is Ex. Ka-7. Ex. Ka-8 is the photographs in which the injuries were shown along with the inquest re port. Ex. Ka-9 was also prepared at the time of preparation of the inquest re port. Ex. Ka-10 is the letter written by the I. O. to the R. I. Police Line, Dehradun. Ex. Ka-11 is the letter written by the I. O. to the C. M. O. , Doon Hospital, Dehradun requesting for conducting the post-mortem of the dead body. Ex. Ka-12 is the specimen of seal. Ex. Ka-13 is also a letter written by the I. O. to CMO Dehradun. Ex. Ka-15 is the copy of the G. D. dated 4-12-1987 Report No. 28 at 9:00 RM. Ex. Ka-16 is also a copy of G. D. dated 4-12-1987 at 9:30 A. M. Report No. 16. Ex. Ka-17 is also a copy of the G. D. dated 4-12- 1987 at 10:00 RM. Report No. 29. Ex. Ka-18 is the map prepared by the I. O. of the place of occurrence. Dr. B. C. Ramola conducted the post mortem of the deceased on 5-12-1987 at 2:45 P. M. , the post- mortem report is Ex. Ka-2. During the investiga tion, the I. O. has recorded the state ments of the witnesses and after completing the investigation, he has submit ted the charge sheet against the respond ents, that charge sheet is Ex. Ka-20 in the court of CJM, Dehradun. 4. The CJM, Dehradun has commit ted the case to the court of Sessions af ter complying with the provisions u/s 207 Cr. P. C. on 09-03-1989. 5. The learned Additional Sessions Judge, Dehradun has framed the charge against the Respondent Nos. 1 and 2 Kailash and Vijay Prakash alias Bijji u/ s 302 IPC on 29-11-1989. The charge was read over and explained to them who pleaded not guilty and claimed to be tried. The charge against the Re spondent No. 3 Arun alias Gullu was framed u/s 302 r/w 34 IPC on 29-11-1989. The charge was also read over and explained to Respondent No. 3 who also pleaded not guilty and claimed to be tried. 6. The prosecution in order to prove its case produced P. W. I Brahmanand, P. W. 2 Head Constable Raj Kumar, P. W. 3 Ganga Ram, P. W. 4 Dr. B. C. Ramola and P. W. 5 S. I. Y. R Singh. Thereafter, the statements of the respondents were re corded u/s 313 Cr. P. C. They have de nied the allegations made against them however they have not examined any witness in support of their case in de fence but they had filed a copy of the judgment and order dated 22-11-1988 passed by Additional Sessions Judge, Dehradun in S. T. No. 102 of 1987, State Vs. Kaloo and Gullu, whereby the Kaloo alias Kalia and Arun Kumar alias Gullu were acquitted for the charge u/s 302 and 307 IPC. After appreciating the evi dence and hearing learned counsel for the parties, the learned Additional Ses sions Judge has acquitted the Respond ents for the offence punishable u/s 302 r/w 34 IPC by his order dated 4-4-1990. Against the said order dated 4-4- 1990, the State has come up in appeal before this Court. 7. We have heard Sri Amit Bhart, learned Additional G. A. for the State and Sri Diwakar Chamoli, learned amicus curiae for the Respondent N (is. 1 and 2 and perused the entire material available on record. 8. In support of its case, the pros ecution has examined as many as five witnesses. 9. P. W. I is the Brahmanand who has stated in his statement that on 4-12-1987, he went to village Mothrowala for seeing his ailing daughter. He received the information from a person who had come from his village that his son was murdered at 11:00 A. M. at Kanwali Road near Bindal River. He went to the spot and saw the dead body lying there. Many persons were also collected there. They had-iold him that Kallu, Kailash, Bijji and Gullu had fired upon the de ceased. He has further stated that for the above said incident, he had lodged the FIR in the RS. Kotwali, Dehradun. The FIR is Ex. Ka-1. In the cross- exami nation, he has stated that Kanwali vil lage is in the distance of 7-8 Kms. from Mothrowala. He has also stated that the Naresh had come to inform him about the murder of his son. He had further stated that the Daroga had told him before lodging the FIR in the police station that it is a general rumour that the respondents have killed the deceased Ramesh. 10. P. W. 2 is the Head Constable Raj Kumar. He has stated that he went from the out post Laxman Chowk for serving the summon and other documents. When he reached at Bhatda Mohalla near the river, he heard the noise of fire. When he reached on the spot, he saw the respondents and the deceased. All the respondents were armed with coun try made pistol. Bijji and Kaloo had made 2-3 fires on Ramesh due to which he fell down there. He chased the re spondents but they could not be traced. He had chased the respondents up to Yamuna Colony but he could not get success to catch hold them. When he returned on the place of occurrence, then some persons had collected there. The bank duty employees, Constable Ram Kumar and Baleshwar Singh also reached on the spot. He has stated in his cross-examination that the respond ents were named in the murder of Hemendra and since then they were known to him. He has further stated that there is near about the place of occurrence. He has further stated that he chased the respondents and he did not care of the deceased Ramesh. The respondents were running on a scooter and they were two scooters. He has fur ther stated that his statement u/s 161 Cr. P. C. was recorded by the S. I. Y. R Singh on the next day of the incident. He has further stated that he chased the scooters of the respondents upto 1/2 Kms. to Kms. and for that, he took 1 -1v2 hours. He had further stated that he has not informed in the police station about the incident and he has not made any entry in the G. D. about the said incident. 11. P. W. 3 is Ganga Ram who has stated that he did not know anything about the incident. He was declared hostile by the prosecution, as he has not supported the case of the prosecution. 12. P. W. 4 is Dr. B. C. Ramola. He has stated that on 5-12-1987, he was posted as Medical Officer and on that day at 2:45 RM. , he had conducted the postmortem of the deceased Ramesh and he had found the following ante-mortem injuries on his person : 1. Gun shot entry wound oval shape 3 cm. x 2 cm. into brain cavity deep on the left side of the head mastoid region with blackening and burning hairs and charring around the wound and scalp with brain matter oozing out directly posteriorly.

(2.) LACERATED wound 2 cm x 1 cm on the upper part of left MU with blackening and charring of the margins.