Dharam Veer, J.
1. This criminal appeal, preferred Under Section 374(2) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.) is directed against the judgment and order dated 15/16.11.1999 passed by Additional Sessions Judge, Uttarakhand matters, Dehradun in Sessions Trial No. 54 of 1999, State v. Ram Dhiraj and Anr., whereby the learned Addl. Sessions Judge has convicted the accused-appellant Vishwanath and co-accused Ram Dhiraj under Section 307 read with Section 34 of The Indian Penal Code, 1860 (hereinafter to be referred as the IPC) and sentenced each of them to seven years R.I. with fine of Rs. 10,000/- each and in default of payment of fine, two years further R.I. was awarded to each of them.
2. Heard learned Counsel for the parties and perused the entire material available on record.
3. In brief, the prosecution story is that on 25.2.1999 P.W.1 Smt. Kalawati lodged an oral report in the police station stating that she and her husband Ram Dhiraj (co-accused) lives at Dilaram Bazar in Dehradun. Her husband had taken her to Dakpathar in the house of his cousin brother Vishwanath (the appellant herein) on Monday. Yesterday evening her husband and the appellant/accused taken her to Kali Mandir at Kalsi and thereafter on the pretext of taking her to Baba for medicines, they took her in the forest and at a distance of about 2 miles from the temple they first throttled her neck and thereafter with intention to kill her they pushed her down from the road. She had become unconscious. In the night when she came in her senses then she came near the side of Jamuna River by crawling. In the morning three fishermen reached there. She told the entire incident to them and requested for help. Then those fishermen took her to police Station. She further averted that she has received number of injuries. With the same averments, P.W.1 Smt. Kalawati lodged an oral report at P.S. Kalsi, District Dehradun on 25.2.1999 at 09:05 AM, i.e. Ext.Ka-1. On the basis of this FIR, Head Mohirror Rajveer Singh prepared the Chik FIR of the case. Necessary entries in this regard were also made in the G.D., carbon copy of which is Ext.Ka-6. The investigation of this case was entrusted to Sub Inspector Chandra Pal Singh. On the same day at 09:30 AM Smt. Kalawati was medically examined by P.W.3 Dr. Viraj Sah, Medical Officer, P.H.C., Kalsi, who after the medical examination prepared the medical report Ext.Ka-2. Thereafter supplementary report of the victim was also prepared by P.W.4 Dr. P.K. Nautiyal, Radiologist, Doon Hospital, Dehradun, i.e. Ext.Ka-3. During the course of investigation, the Investigating Officer recorded the statement of the witnesses and prepared the site-plan Ext.Ka-4 of the place of occurrence and after completing the investigation filed the charge sheet against the accused/appellant and co-accused, i.e. Ext.Ka-5.
4. On receipt of charge sheet, learned A.C.J.M IIIrd, Dehradun committed the case to the court of Sessions on 13.5.1999, after giving necessary copies to the accused/appellant and co-accused as required Under Section 207 Cr.P.C.
5. It seems from record that the case was then transferred to Additional Sessions Judge, Dehradun for hearing and disposal according to law.
6. On 21.6.1999, learned Additional Sessions Judge, Uttarakhand Matters, Dehradun framed the charge against the accused/appellant Vishwanath and the co-accused Under Section 307 r/w 34 of IPC. The charge was read over and explained to the accused/appellant and the co-accused who pleaded not guilty and claimed to be tried.
7. In order to prove its case, the prosecution has examined P.W.1 Kalawati, victim and complainant of the case, P.W.2 Ram Pal, brother of the victim, P.W.3 Dr. Viraj Sah, Medical Officer, who medically examined the victim and prepared the injury report Ext.Ka-2, P.W.4 Dr. P.K. Nautiyal, Radiologist, who prepared the supplementary report Ext.Ka-3 of the victim, P.W.5 Munna, fisherman, who had taken the victim from the place of occurrence to the police station and P.W.6 S.I. Chandar Singh Pal, Investigating Officer of the case.
8. Thereafter, the statement of the accused/appellant and co-accused were recorded Under Section 313 Cr.P.C. The oral and documentary evidence were put to each of them in question form, who have denied the allegations made against them. However, they have not produced any oral or documentary evidence in their defence.
9. After appreciating the entire evidence on record and hearing learned Counsel for the parties, learned Addl. Sessions Judge, Dehradun vide his judgment and order dated 15/16.11.1999 convicted and sentenced the accused/appellant Vishwanath and co-accused Ram Dhiraj as mentioned above. Feeling aggrieved by the said judgment and order dated 15/16.11.1999, the accused/appellant Vishwanath has preferred this appeal.
10. Before further discussion, it is pertinent to mention here the injury report (Ex.Ka-2) of the victim Smt. Kalawati (P.W.1) who was examined on 25.2.1999 at 09:30 AM by P.W.3 Dr. Virah Sah, which is as under:
1. (i) L.W. 2.5 cm x 0.5 cm (ii) L.W. 2.0 cm x 0.5 cm on fore head (i) 4.0 cm above right eyebrow having severe swelling and clotted blood around (ii) 2.0 cm above left eyebrow having swelling and clotted around it.
2. L.W. on scalp left side 3 in number 2.0 cm x 0.5, 2.5 cm x 0.5 cm and 1.0 cm x 0.5 cm about 10.0 cm above left tragus, having severe swelling and clotted blood around it.
3. Huge swelling on left and right mandibullar side and face and lips.
4. Bruise and swelling left shoulder also tenderness present.
5. Multiple abrasions on left knee having swelling and tenderness.
6. Huge swelling and tenderness over right elbow region.
Opinion:- Above injuries are grievous in nature and caused by blunt object and impact over hand surface and duration is about 12-24 hours and for further opinion referred to Doon Hospital for expert opinion and treatment.
11. To prove the above-noted injury report, the prosecution has examined P.W.3 Dr. Viraj Sah, who has proved the injury report Ext.Ka-2 prepared by him. He opined that the above noted injuries could possibly be caused if the injured would have push down from the hill. These injuries were possible to come on 24.2.1999 at the time of sunset and death was also possible due to these injuries.
12. Thereafter supplementary report Ext.Ka-3 of the victim was also prepared by Dr. P.K. Nautiyal, which is as under:
- No evidence of fracture skull and face bones
- No evidence of fracture of shoulder bones
13. To prove the medical report Ext.Ka-3, the prosecution has examined P.W.4 Dr. P.K. Nautiyal, who has stated that on 27.02.1999 x-ray of Smt. Kalawati was conducted under his supervision. He has proved the X-ray plates Ext.1 to 4. He further stated that on the basis of X-ray plates he has prepared the report Ext.Ka-3 and no fracture was found on the bones of skull, face and left shoulder. However, fracture was found in humerus bone.
14. Statement of victim Kalawati recorded Under Section 164 Cr.P.C. is also essential to mention here, which is reproduced hereunder:
iwNus ij crk;k fd eS vius ifr ds lkFk nsgjknwu esa 4&5 lky ls jgrh vk jgh gwWa A nsgjknwu esa fnysjke LFkku ij jgrh gwWa A esjk vkneh Hkh ogh jgrk gS esjk vkneh ukyhfxjh dk dke djrk gS pkj ikWap fnu ls ge MkdiRFkj esa viuh fj'rsnkjh esa vk;s Fks A MkdiRFkj esa esjs llqj dh cgu jgrh gS mlh ds ?kj vk;s Fks lqcg vkB cts ,d eNyh idM+us okyk eq>s tequk th ds fdukjs iqy ij yk;k vkSj eq>s /kDdk ns fn;k vius vki Hkkx x;k esjk vkneh Hkh mlds lkFk Fkk A eSa vkneh dks lkeus vkus ij igpku ldrh gWawA esjk vkneh esjs ls jkst yM+kbZ >xM+k djrk jgrk gS esjk ,d yM+dk gS tks vius cki ds ikl gS og fdlh vkSj yM+dh ls nksLrh j[krk gS blfy;s eq>s ekjuk pkgrk gS lqudj rLnhd fd;k
15. To prove its case further, the prosecution has examined P.W.1 Smt. Kalawati, who has reiterated the contents of the First Information Report. She has proved the report Ext.Ka-1 lodged by her in the police station. Apart from above, she has also deposed that her husband wanted to do another marriage and therefore he tried to kill her. Before this incident also, her husband used to beat her because of another woman.
16. P.W.2 Rampal has stated that Smt. Kalawati is his sister and the co-accused Ramdhiraj is husband of his sister. Co-accused Ram Dhiraj used to beat his sister. He had come to know that the co-accused Ram Dhiraj has illicit relations with a woman. He further deposed that his sister had told him that accused/appellant Vishwanath and the co-accused Ram Dhiraj thrown her in river and have caused injuries to her with intention to kill her. He further deposed that now his sister is living with him. She got medical treatment and she remained in hospital for about six days.
17. P.W.5 Munna has stated that on the date of incident at about 5-6 AM he alongwith two other fishermen had gone to catch fishes in Jamuna River. There they found a woman drenched in blood who requested them for help. On being asked, she told them that her husband and cousin brother of her husband first throttled her neck and then thrown her down from the road. He further deposed that he alongwith other fishermen took her to Kalsi Police Station.
18. P.W.6 Sub Inspector Chandar Pal Singh has stated that on 25.2.1999 he was posted as Station Officer at P.S. Kalsi. The investigation of this case was conducted by him. During the course of investigation, he recorded the statement of the witnesses and prepared the site-plan Ext.Ka-4 of the place of occurrence and after completing the investigation, he filed the charge sheet Ext.Ka-5 against the accused/appellant and the co-accused. He further stated that Chik FIR Ext.Ka-1 of the case was prepared by H.M. Rajveer Singh and entries in the G.D. were also made by him, i.e. Ext.Ka-6.
19. Thereafter, the statement of the accused/appellant and co-accused were recorded Under Section 313 Cr.P.C. The oral and documentary evidence were put to each of them in question form, who have denied the allegations made against them. However, they have not produced any oral or documentary evidence in their defence.
20. Sri K.S. Verma, learned Counsel for the accused/appellant Vishwanath has argued that the prosecution has not proved its case against the accused/appellant beyond reasonable doubt. I find force in this argument for the reason that in the First Information Report as well as in her statement recorded before the trial court the victim Smt. Kalawati took the name of the appellant Vishwanath as to his involvement in the said crime but in the statement Under Section 164 Cr.P.C. recorded before the Tehsildar she did not make any allegation against the present appellant Vishwanath nor did she state anything about him. She only stated that one fisherman thrown her from the bridge and at that time her husband was also with him. There are contradictions in the statement of the victim and any contradiction would lead to the benefit to be given to the accused/appellant Vishwanath. Thus, I am of the view that these facts and circumstances create a reasonable doubt about the presence of the appellant-accused Vishwanath on the relevant date and time over the place of occurrence and he is liable to be given benefit of doubt. As such, the prosecution has miserably failed to prove its case against the appellant/accused Vishwanath beyond reasonable doubt Under Section 307 r/w 34 of IPC and the trial court was not correct and justified in convicting and sentencing the appellant/accused as discussed above. The appellant is liable to be acquitted by giving benefit of doubt.
21. Resultantly, the appeal is allowed. The judgment and order dated 15/16.11.1999 passed by Additional Sessions Judge, Uttarakhand matters, Dehradun in Sessions Trial No. 54 of 1999, State v. Ram Dhiraj and Anr., in convicting and sentencing the appellant/accused Vishwanath, is hereby set aside. Appellant Vishwanath is on bail. He need not surrender unless wanted in any other case.
22. Let the lower court record be sent back.