CRIMINAL APPEAL 1513 of 2001 on 21 March 1995

1. This appeal, preferred under Section 374 of Code of Criminal Procedure, 1973 (for short, CrPC), is directed against judgment and order dated 12[th] March, 1999, passed by 1[st] Additional Sessions Judge, Dehradun, in Sessions Trial No. 154 of 1995, whereby accused /appellant Praveen alias Babloo has been convicted under Section 302 of Indian Penal Code, 1860 (for short, IPC), and sentenced to imprisonment for life, and also directed to pay fine of ` 5,000/- (Five Thousand). It is further directed by the trial court that the appellant shall undergo further imprisonment for a period of six months in default of payment of fine.

2. Heard Amicus Curiae for the appellant and Sri Prabhakar Joshi, Brief Holder for the State.

3. Prosecution story, in brief, is that PW1 Bharat Bhushan Juyal (informant) gave a report (Exhibit A-1) on 21.3.1995 at about 9.15 P.M. at Police Station Dalan Wala, stating that on that day at about 7.30 P.M., when he returned his home, his son Vijay Bhushan alias Babloo (deceased) was not in the house. The informant inquired about him from his wife, who disclosed that Vijay Bhushan has gone with his friends Amit Prakash(PW3) and one Vishal to the house of Montu (PW2). On this, informant went to the house of Montu (PW2), where he saw his son talking to Montu, Amit Prakash (PW3) and Vishal in a lane in old Dalan Wala. At about 8 P.M., accused/appellant Praveen alias Babloo along with co-accused Vikrant Valmiki came there, and called Vijay Bhushan, and asked him to talk with them in an isolated place. The two accused took him with them, whereafter at a distance of 15-20 steps, Praveen alias Babloo and Vikrant Valmiki assaulted Vijay Bhushan with knives. Vijay Bhushan suffered injuries and fell down. He was taken to the Hospital, but died of the injuries. The friends of the deceased and his father attempted to apprehend the accused, but they succeeded in running away from the place of incident. On the basis of report (Exhibit A-1), given by PW1 Bharat Bhushan Juyal, Police registered Crime No. 95 of 1995 at Police Station Dalan Wala against the two accused, namely, Praveen alias Babloo(appellant) and VikrantValmiki, relating to offence punishable under Section 302 IPC. Crime was . investigated by PW12 Sub Inspector Ram Prasad DubeyDead body of the deceased was taken into possession by the Police, and Inquest Report (Exhibit A-2) was prepared on the very day (21.3.1995) at 22:30 hours. Police got prepared other necessary papers also e.g. Police Form No. 13 (Exhibit A-7), Sketch of the dead body (Exhibit A-4), letter to Chief Medical Officer (Exhibit A-6), before the dead body was sent in a sealed condition for post-mortem examination. PW5 Dr. D.M. Kala conducted post mortem examination on the dead body of Vijay Bhushan on 22.3.1995. He recorded as many as seven ante-mortem injuries (all incised wounds) in the Autopsy Report (Exhibit A-3) prepared by him. After interrogating the witnesses, inspecting the spot, and on completion of investigation, the Investigating Officer submitted a charge-sheet (Exhibit A-18) against the two accused, namely, Praveen alias Babloo (appellant) and Vikrant Valmiki. Meanwhile, the recovery of the weapons used in the crime was also made by the Investigating Officer. Accused Vikrant Valmiki claimed during trial that he was juvenile, and his case was separated from the present appellant.

4. The Chief Judicial Magistrate, Dehradun, on receipt of the charge-sheet, after giving necessary copies to the accused, as required under Section 207 of CrPC, committed the case to the court of Sessions for trial. Learned 1[st] Additional Sessions Judge, Dehradun on 7.7.1995, after hearing the parties, framed charge of offence punishable under Section 302 IPC against accused / appellant Praveen alias Babloo, to which he pleaded not guilty, and claimed to be tried. On this, prosecution got examined PW1 Bharat Bhushan(informant), PW2 Jitendra Kumar alias Montu (declared hostile), PW3 Amit Prakash (declared hostile), PW4 Anil Kumar (witness of Inquest Report), PW5 Dr. D.M. Kala, who conducted post-mortem examination, PW6 Sub Inspector Rajveer Singh, who prepared Inquest Report, PW7 Prabha Juyal mother of the deceased, PW8 Constable Mahipal Singh, who took dead body of the deceased in a sealed condition for post-mortem examination, PW9 Ashok Kumar, PW10 Dr. Ajay Sharma, PW11 Rakesh alias Kala, PW12 Sub Inspector Ram Prasad Dubey, who investigated the crime, and PW13 Head Constable Satya Prakash, who registered the First Information Report. Oral and documentary evidence was put to accused / appellant Praveen alias Babloo under Section 313 CrPC, in reply to which, he alleged same to be false. In defence, DW1 L.S.J. Negi and DW2 AshokAhuja were got examined. The trial court, after hearing the parties, found that the prosecution has successfully proved charge of offence punishable under Section 302 IPC against accused Praveen alias Babloo. After hearing on sentence, the convict was sentenced to imprisonment for life, and directed to pay fine of ` 5,000/- (Five Thousand). Aggrieved by said judgment and order dated 12[th] March, 1999, passed by 1[st] Additional Sessions Judge, Dehradun in Sessions Trial No. 154 of 1995, this appeal was preferred by the convict, before Allahabad High Court on 23[rd] March, 1999. The appeal was admitted by said court on 24.3.1999. The appeal is received by this Court under Section 35 of U.P. Re-organisation Act, 2000 (Central Act 29 of 2000) for its disposal.

5. Before further discussion, we think it just and proper to mention the ante-mortem injuries, recorded by PW5 Dr. D.M. Kala at the time of post-mortem examination on the dead body of the deceased Vijay Bhushan on 22.3.1995. Ante-mortem injuries, mentioned in Autopsy Report (Exhibit A-3) prepared by PW5 Dr. D.M. Kala, are reproduced as under:-

1. Incised wound 1 cm X .5 cm X muscle deep on the abdomen, 8 cm from umbilicus at 11’O Clock position.

2. Incised wound 2 cm X 0.5 cm X muscle deep on the front of left upper arm, vertically placed tapering 8 cm from left elbow.

3. Incised wound 2 cm X 0.5 cm X muscle deep on back of left upper arm. 11 cm from left elbow vertically placed tapering inferiorly.

4. Incised wound 5 cm X 1 cm X muscle deep on back of left shoulder horizontally placed tapering to left.

5. Incised wound 2 cm X 0.5 cm X muscle deep on outer aspect of left thigh. 13 cm from left, 1 cm horizontal, tapering anteriorly.

6. Incised wound 6 cm X 1.5 cm X muscle deep on the back of right forearm, 10 cm from right elbow horizontally tapering to anterior.

7. Incised wound 4 cm X 1 cm on left side chest, 3 cm below left nipple, horizontally tapering to right.

6. The Medical Officer has opined in the report that deceased had died of shock and haemorrhage as a result of ante-mortem injuries. In his statement, PW5 Dr. D.M. Kala has stated that the aforesaid ante-mortem injuries might have been caused on 21.3.1995 at about 8 P.M. with knives. From the above medical evidence, it is established on the record that Vijay Bhushan died homicidal death on 21.3.1995. Now, this Court has to see, whether accused / appellant Praveen alias Babloocommitted murder of Vijay Bhushan, as alleged by the prosecution, or not.

7. PW1 Bharat Bhushan, informant has stated that on 21.3.1995, when he returned his home at 7.30 P.M. his son (Vijay Bhushan) was not there. He inquired about his son from his wife, who disclosed him that Vijay Bhushanhad gone with Amit (PW3) and one Vishal to the house of Montu (PW2). This witness has further stated that he went to the house of Montu, and saw Montu, Vishal and Amit talking among themselves, in a lane in old Dalan Wala. PW1 Bharat Bhushanfurther stated that thereafter, accused Praveen alias Babloo and Vikrantcame there and took Vijay Bhushan with them to talk in an isolated place. The witness further narrates that after the three went about 15-20 steps, accused/appellant Praveen alias Babloo and Vikrant stabbed with knives on the person of Vijay Bhushan. The witness further states that Vijay Bhushan fell down due to the injuries. The witness further stated that he and friends of the deceased tried to apprehend the accused, but they succeeded in running away. The witness has further stated that thereafter, injured Vijay Bhushan was taken in a three-wheeler to Coronation Hospital for treatment, but on the way to Hospital, he succumbed to injuries. The witness has proved the First Information Report (Exhibit A-1) lodged by him at Police Station Dalan Wala.

8. PW2 Jitendra Kumar alias Montu and PW3 AmitPrakash have not supported the prosecution story and .they were declared hostile There are only three eye-witnesses (PW1, PW2 & PW3) of the incident. The trial court has believed the testimony of PW1 Bharat Bhushan. But on going through the entire evidence on record, we find that the testimony of PW1 Bharat Bhushan (father of the deceased) is not corroborated by any of the alleged eye-witnesses. The prosecution case is that Vijay Bhushan left his house with his friends Amit Prakash(PW3) and one Vishal (not examined) to go to the house of Montu (PW2). As per the prosecution story, Vijay

Bhushan (deceased) was talking with Montu (PW2) and one Vishal, when accused / appellant Praveen alias Babloo and Vikrant came there. The said three persons, to whom the deceased was talking, were the best persons, who could have deposed as to what was done by accused/appellant Praveen alias Babloo and Vikrant, after they came and called Vijay Bhushan to talk with him, in an isolated place. Presence of PW1 Bharat Bhushan (father of the deceased) at the place of incident does not appear to be natural. Neither PW2 JitendraKumar alias Montu, nor PW3 Amit Prakash alias Nishuhave supported the prosecution case that Praveen aliasBabloo committed murder of VijayBhushan. For the bestreasons known to the prosecution, the third witness Vishal was not examined. Had the incident taken place in the house of informant (PW1 Bharat Bhushan) or near hishouse, it could have been said that his presence wasnatural at the time of the incident. Though conviction of an accused can be maintained only on the basis of testimony of single eye-witness, but it must be reliable and trustworthy. PW1 Bharat Bhushan has stated that at about 7.30 P.M. he reached his home after his duty in Dehradun Club, where he was employed. In defence, DW1 L.S.J. Negi Secretary of Dehradun Club and DW2 Ashok Ahuja Accountant of said Club have stated that in the month of March 1995, name of Bharat Bhushan(PW1) does not figure as an employee of Dehradun Club. DW2 Ashok Ahuja has stated that a criminal case relating to embezzlement was initiated against Bharat Bhushan and he was placed under suspension in the year 1993, and continued to remain under suspension till 30.6.1996. From the evidence of the above two witnesses, it is clear that PW1 Bharat Bhushan has not given the correct version of the story. In the cross- examination, PW1 Bharat Bhushan himself admits that he was facing trial in respect of offence punishable under Section 409 IPC. It is further admitted by him in the cross-examination that even before the incident, his son (Vijay Bhushan) used to go to the house of Jitendra Kumar alias Montu. As such, there was nothing abnormal on the part of his son (Vijay Bhushan) in going to the house of Montu with his friends, and it appears unnatural that the father followed his son to the house of Montu.

9. For the reasons, as discussed above, we are of the view that prosecution has not successfully proved charge of offence punishable under Section 302 IPC, beyond reasonable doubt, against accused / appellant Praveen alias Babloo. In our opinion, trial court has erred in law in holding that the charge is proved beyond reasonable doubt. Apart from this, learned Amicus Curiae, on the last date, when pleaded that appellant was minor at the time of the incident, this Court called for a report from Juvenile Justice Board, Dehradun. A report dated 14.12.2010 is received by this Court from the Juvenile Justice Board, Dehradun that on inquiry, Praveen alias Babloo (appellant) was found aged 15 years and six days on 21.3.1995 (the date of incident). The Juvenile Justice Board has relied on the Birth Registration Certification issued by Nagar Palika Parishad, Dehradun in the year 1995, and the inquiry got made through City Magistrate, Dehradun. As such, otherwise also, even if the conviction is upheld, the accused could not have been sentenced, in view of the principle of law laid down in Dharambir Vs. State (NCT of Delhi) and another (2010) 5 SCC 344and Hari Ram Vs. State of Rajasthan and another

(2009) 13 SCC 211. But, we are not going on that point as even on merits, the charge is not proved.

10. Therefore, the appeal deserves to be allowed. Appeal is allowed. The impugned judgment and order dated 12.3.1999, passed by 1[st] Additional Sessions Judge, Dehradun, in Sessions Trial No. 154 of 1995, is set aside. Accused/appellantPraveenalias Babloois acquitted of the charge of offence punishable under Section 302 IPC, giving him benefit of reasonable doubt. He was on bail during pendency of this appeal, he need not surrender. The lower court record be sent back.

(Sudhanshu Dhulia, J.) (Prafulla C. Pant, J.)29.12.2010 Rathour