Sudhanshu Dhulia, J. -
(1.) THIS appeal, under Section 378 (3) of Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.) is directed against the judgment and order dated 04.12.2002 passed by learned District & Sessions Judge, Pauri Garhwal in Sessions Trial No. 40 of 2001 whereby the accused/respondents, namely, Dhan Singh and Prem Bahadur have been acquitted of the charge of offence punishable under Sections 302 read with Section 34 and 201 read with Section 34 of I.P.C. The brief facts, as per the prosecution are that a complaint was lodged on 06.09.2000, under Section 156(3) of Cr.P.C. before the Judicial Magistrate, Srinagar Garhwal by the complainant - Smt. Maina Devi (P.W.1) alleging therein that at about 10:00 p.m. in the night accused Dhan Singh and Prem Bahadur and one another person, namely, Bali Bahadur came to her house and took her husband - Gorak Bahadur for some work. Since then her husband had not returned back. She had tried to search him at various places, including her original home at Nepal, but in vain. She further states in the complaint that after a week she went to police station, Srinagar along with the photograph of her husband and complained to Station House Officer (SHO) about the three persons, namely, Dhan Singh, Prem Bahadur and Bali Bahadur. On the basis of the complaint, SHO had called all the three persons at the police station, but later they were left. These three persons have threatened her (i.e. complainant - Smt. Muaina Devi) that they will kill her and her children. She further states that all these three persons have either abducted her husband or have killed him. She further states that she wrote a complaint about this to the District Magistrate, but no action was taken on her complaint. The learned Judicial Magistrate, on the basis of the complaint, directed the SHO, Srinagar to register the First Information Report, which was registered on 14.09.2000 and consequently, the investigation started. Initially on the strength of the said First Information Report a case was registered against all the three accused under Sections 364, 504 and 506 of I.P.C. and the investigation was given to Sub -Inspector - Jagdev Malik. The Investigating Officer, after completing the investigation, requested his superior authority that the accused were falsely implicated in the case, therefore, he may be permitted to submit the Final Report. However, the then Superintendent, Pauri vide order dated 21.11.2000 rejected his application and directed the SHO, Srinagar - Sri Kailash Chandra Panwar to re -investigate the matter. On 22.11.2000, SHO - Sri Kailash Chandra Panwar arrested the present accused, namely, Dhan Singh and Prem Bahadur and produced them before the Judicial Magistrate on the very next day i.e. 23.11.2000. On the request of the Investigating Officer, statements of these accused were recorded under Section 164 of Cr.P.C. before the Magistrate. Accused - Dhan Singh confessed in his statement that he had called Gorak Bahadur from his house on instigation of Prem Bahadur and Bali Bahadur at about 09:00 -10:00 in the night regarding some work and when they reached near the Jhoolapul, they met Bali Bahadur and Prem Bahadur and thereafter all of them started moving together. They all had consumed liquor together and suddenly Prem Bahadur and Gorak Bahadur had some alterations and arguments relating to some transaction of money. One thing followed another and soon Prem Bahadur and Bali Bahadur started kicking Gorak Bahadur and when he fell down, Prem Bahdaur sat on his chest and started strangulating him. Both of them i.e. Prem Bahadur and Bali Bahadur kicked Gorak Bahadur in his groin and thereafter threw his body in the river. Thereafter, all of them came back to their respective homes and slept. This witness further states that on the next morning wife of Gorak Bahadur - Smt. Maina Devi enquired about her husband and he told her that her husband had returned along with Bali Bahadur and Prem Bahadur. Thereafter, this witness states he left Srikot.
(2.) PREM Bahadur another accused, in his statement recorded under Section 164 of Cr.P.C. before the Magistrate states that Dhan Singh went to Gorak Bahadur house in the night of occurrence and when they reached at Choras Jhoolapul, they met Bali Bahadur and Prem Bahadur and leaving him all the rest had liquor together. Thereafter, he asked Gorak Bahadur to return his money, which he had borrowed from him. On this, Gorak Bahadur started abusing Prem Bahadur, not only did he abuse to him, but he also abused Bali Bahadur and Dhan Singh. On this, they got angry and when Bali Bahadur kicked Gorak Bahadur he fell down, thereafter, he (Prem Bahadur) sat on his chest and started strangulating him. Dhan Singh was holding both the hands of Gorak Bahadur and Bali Bahadur was kicking him and shouting "we will kill him today". Since he was being strangulated Gorak Bahadur could not shout and after sometime he died. All three, namely, Dhan Singh, Prem Bahadur and Bali Bahadur threw the body of the deceased (Gorak Bahadur) into the river and came back to their respective homes. This witness further states that on the very next day, Smt. Maina Devi - wife of the deceased came to him enquiring about her husband and she was told that he has not seen him and he cannot tell the whereabouts of her husband. After two days of the said incident, Bali Bahadur and Dhan Singh fled away from Srinagar. The Investigating Officer after completing the investigation submitted the chargesheet before the court concerned against the accused Dhan Singh and Prem Bahadur under Sections 302, 201, 504 and 506 of I.P.C. and a Final Report against Bali Bahadur. After submission of chargesheet, the learned Magistrate committed to the Court of Sessions for trial and the learned Sessions Judge, after hearing the parties, framed charges under Section 302/34 and 201/34 of I.P.C. against the accused/appellants.
(3.) THE prosecution in support of its case produced as many as five witnesses, namely, Smt. Maina Devi (P.W.1) - wife of the deceased, Intzar Husain (P.W.2), Sri Prashant Joshi (P.W.3) - the concerned Judicial Magistrate before whom the confession was made, Kulo Singh Gabaryal - A.S.I. (P.W.4) - Investigating Officer and Kailash Panwar (P.W.5) - Investigating Officer. The accused/respondents denied charges and claimed trial and produced Narendra Singh (D.W.1) and Lal Kali (D.W.2) in their defence.;