Narain Singh and Others vs State of Uttaranchal

Barin Ghosh, C.J.

Misc. Application No. 1509 of 2011

The victim was brought to Pithoragarh hospital, where he died. That death was reported to be homicidal in nature. Investigation pursuant to the first information report revealed that the appellants, three in number, have caused the said death. They were accordingly accused therefor on being charged. The charge was framed and read out to the appellants. They having denied the charge, the case of the prosecution was tried. In course of trial it was held, accepting the evidence of P.W.1 and P.W.3, that the charge of homicidal death of the victim, said to have been committed by the appellants, stands proved. The appellants, accordingly, have been convicted by the judgment and order under appeal, for an offence punishable u/s 302 read with Section 34 of the Indian Penal Code.

After having filed the appeal, the appellants obtained bail. The learned counsel for the appellants has filed an application u/s 391 of the Code of Criminal Procedure, 1973, for production of additional evidence to demonstrate that the death was accidental and not homicidal. For that purpose he seeks to bring on record the entry made in the Register of Pithoragarh hospital to the effect that the death was accidental. The learned counsel further felt that it would be appropriate to have the doctor, who made the entry, to also be examined for the purpose of bringing on record further evidence. In the application it has been stated that the said evidence could not be brought at an earlier point of time, and in particular when the trial was on, because the copy of the entry in the Register was not furnished to the appellants by the prosecution. In Law, prosecution is required to furnish only copies of those documents, upon which the prosecution seeks to rely to put home the charge. The prosecution has no obligation to give copies of any other document to the accused persons. The purpose of the instant application is to bring home such evidence to establish that it was not a homicide, but an accidental death. There is not single averment in the body of the petition why this evidence could not be brought on record by the appellants at the time when the trial was on. We are, accordingly, unable to record reasons for bringing on record additional evidence sought to be relied by the appellants, except the omnibus reason "in the interest of justice" and as such having no other option, dismiss the application made therefore.

Criminal Appeal No. 252 of 2002

Heard learned counsel for the parties, perused the lower court records. A first information report was lodged on 10th August, 1999, whereby and under, it was indicated that the victim was found lying with several injuries, at about 07:00-08:00 P.M., on 6th August, 1999 below the motorable road, referred to in the first information report. In the report it was stated that the injured was taken to Pithoragarh hospital, ultimately, where he succumbed to his injuries in the night of 7th / 8th August, 1999. In the first information report it was also indicated that the dead body of the victim has undergone postmortem. It was stated in the first information report that the informant has received informations, amongst others, from prosecution witnesses Nos. 1 and 3, namely Prem Singh and Ramesh Ram that it was accused persons, the appellants, who had done away with the deceased. The trial court relied upon the evidence tendered by P.W.1 and P.W.3. According to the evidence of P.W.1, it was the accused persons, the appellants, who caused the death of the deceased, and he witnessed the same. According to P.W.3, he saw the accused persons, the appellants, chasing the victim, and the victim is crying for help and thereafter, he saw in the light of a passing car that the road on which they were running is empty. The question that falls for consideration, in the present appeal, is whether the court could at all accept the evidence of P.W.1 or P.W.3, in view of what has been brought on record by way of evidence. It appears from the evidence of P.W.1 that he informed the informant what he had seen, as he had deposed before the court, on 7th August 1999. Therefore, before the death of the victim, the informant was made aware by the P.W.1 that the death of the deceased is homicidal in nature and the accused persons, the appellants, are involved therewith. As aforesaid, the death took place in the night of 7th August 1999, whereupon postmortem was conducted. There is no just reason why on 8th August 1999, the first information report was not lodged, instead the same was lodged on 10th August, 1999. In his deposition before the court, P.W.3 contended that whatever he had seen, he had not disclosed to anyone else, until such time he was called upon to do so by the police. The police got involved in the matter only after the first information report was lodged on 10th August, 1999. In the circumstances, it has not been explained by the prosecution as to how the informant came to know before lodgment of the first information report that P.W.3 had seen what he had deposed before the court. In the circumstances as above, we do not find any credence in the evidence of P.W.1 and P.W.3, believing whose evidence the appellants have been convicted.

We, accordingly, set aside the judgment and order under appeal, and set the appellants free. They are on bail. They need not surrender. Let the lower court records be returned.