Decided on March 07,2013

Bobby @ Sher Bahadur Respondents


Alok Singh, J. - (1.) VICTIM Ajay alias Ajju received two incised wound injuries, as reported in the Post Mortem Report prepared by Dr. Bharat Kishore (PW5), which caused his death. According to the First Information Report lodged by Krishna Devi (PW8), victim received those two injuries at his own house. The house in question was situate at House No. 251 Nageshwar Road, Dakra, P.S. Cantt., Dehradun. In the First Information Report, it was alleged that PW8 and Smt. Santosh (PW4) went to watch television at the residence of Poornima Pradhan (PW3) in the evening of 6th August, 1996. Both of them returned at around 10:30 p.m., when they saw, respondent, having sustained certain injuries, was coming out from the said house and, on inquiry, respondent told that he received those injuries by brick. Thereafter, they entered the house and found that the victim is lying injured, when the victim allegedly held out that the injuries have been caused by the respondent. In course of tendering evidence before the trial Court, PW3 stated that PW4 and PW8 visited her house for watching television and they left her house around 10:30 p.m. of 6th August, 1996. PW8 stated what she had stated in the First Information Report and, in addition to that, she had stated that the police was informed over telephone by Sri Guru Prasad Tiwari (PW2). She also stated that in the night of 6th August, 1996 and before the First Information Report was lodged, respondent was arrested. It though appears to be the case of the prosecution that the respondent was produced before a Doctor, but the fact remains that no injury report contemporaneously prepared by a Doctor was brought in as evidence. PW4, in course of tendering evidence, stated that when she returned, she did not see the respondent and found the victim lying unconscious. While PW8 was an aunt of the victim, so was PW4. Investigating Officer, Man Singh (PW12), stated that the investigation started after the First Information Report was lodged. PW2, in course of tendering evidence, did not hold out that any phone call was made by him to the Police Station. From the brief narration of the principal evidence tendered by the prosecution, it is, therefore, clear that before the First Information Report was formally tendered, respondent was taken into custody by the police. The prosecution case was that the respondent, in injured condition, was coming out from the house of the victim. Thereafter, victim was found injured and he held out that the injuries have been caused to him by the respondent. While the said case was made out by the prosecution through one of the aunts of the victim, namely, PW8, but the other aunt of the victim, namely, PW4 held out another story, i.e. the victim was lying unconscious until he was removed from the house for taking him to the hospital. One Dr. V.P. Singh deposed as PW6. His deposition was recorded on 10th May, 2000. He was a doctor attached to the Emergency Ward of a hospital. By consulting a paper, he remembered that he had medically examined the respondent in the night of 6th August, 1996. This paper was, however, not tendered in evidence by the prosecution. The reason thereof is not forthcoming.
(2.) BE that as it may, through PW8 prosecution held out that the respondent was coming out from the house and, on entering the house, victim held out that it was the respondent, who caused the injuries, that the victim suffered; on the other hand, the prosecution held out, through PW4, that all throughout the victim was lying unconscious. PW4 and PW8, according to the prosecution, came together from the house of PW3. Although PW4 was declared hostile, but there is no other evidence that the respondent was present at the house at the relevant time. In a situation, if the Court below has given benefit of doubt to the respondent, there is hardly any scope of interference. The appeal fails and the same is dismissed. While going through the lower court records, we found that the statements recorded under Section 313 of CrPC are not available. The matter is serious and, accordingly, a request is being made to the court to take up the matter in the administrative side. Let a copy of this judgment be sent to the Court below along with the lower court records.;

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