Uttarakhand High Court
State Of Uttarkhand vs Neeraj Tiwari on 22 June, 2017
Equivalent citations: 2017 CRI. L. J. 4269, (2018) 187 ALLINDCAS 747 (UTR), (2017) 101 ALLCRIC 382, (2018) 2 CRIMES 245
Bench: Rajiv Sharma, Sharad Kumar Sharma
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Appeal No. 77 of 2011
Deepali Kanyal ....Appellant
Versus
State of Uttarakhand & another ....Respondents
With Government Appeal No. 41 of 2011 State of Uttarkhand ....Appellant Versus Neeraj Tiwari ....Respondent Mr. R.S. Sammal, Advocate appearing for Ms. Deepali Kanyal (wife of deceased Balwant Kanyal). Mr. Nandan Arya, Deputy Advocate General for the State. Mr. Navneet Kaushik, Advocate holding brief of Mr. Lalit Sharma, Advocate for the private respondent/accused Neeraj Tiwari.
Judgment Reserved - 14.06.2017 Date of Judgment - 22.06.2017 Coram: Hon'ble Rajiv Sharma, J Hon'ble Sharad Kumar Sharma, J Per: Hon'ble Rajiv Sharma, J Since common questions of law and facts are involved in the above-titled appeals, hence, these are being taken up together and adjudicated by this common judgment.
2. These appeals are directed against the judgment dated 11.03.2011, rendered by learned Sessions Judge, Nainital in Sessions Trial No.06 of 2010, whereby the respondent-accused (hereinafter referred to as the accused), who was charged and tried with under Sections 147, 148, 302 and 504 of IPC, was acquitted. Hence the State Government has filed Government Appeal No.41 of 2011 against the judgment dated 11.03.2011 and the wife of the deceased has filed the Criminal Appeal No.77 of 2011.
23. The case of the prosecution, in a nutshell, is that an FIR was registered on 23.08.2009 by Sher Singh Kanwal. According to the contents of the FIR, Sher Singh Kanwal along with his brother-in-law Balwant Singh Kanyal, Rajiv Kumar Walia, Bhupal Singh, Khushal Singh, was taking dinner on 22.08.2009 at 9.30 PM in the Puniyan Restaurant. After some time, Neeraj Tiwari alongwith his 3-4 friends came in that restaurant. They started abusing Balwant Singh Kanyal. Thereafter, a scuffle took place. The police of Kathgodam reached at the spot. Neeraj Tiwari and his companions were taken to police station. Balwant Singh Kanyal was also taken along with them. They took them in a pickup vehicle. When they reached police station between 10:30-11:45 PM, they saw that Balwant Singh was shot at by Neeraj Tiwari on his forehead. Balwant Singh died on the spot. The dead body was taken to Haldwani hospital, where he was declared dead. FIR was registered. The body was sent for postmortem examination. The prosecution has examined as many as 16 witnesses in its support. The statement of the accused was recorded under Section 313 of Cr.P.C. He denied the case of the prosecution. The accused was acquitted. Hence, the present appeals.
4. Learned counsel for the complainant as well as learned Deputy Advocate General appearing for the State have vehemently argued that the prosecution has proved its case against the accused.
5. Learned counsel appearing for the respondent- accused has supported the judgment dated 11.03.2011.
6. We have heard learned counsel for the parties and gone through the impugned judgment and record very carefully.
37. PW1 Dan Giri Goswami testified that on 22.08.2009 he was posted at Police Station Kaladhungi. He was on Sentry duty. A message was received that quarrel was going on at Puniyan restaurant. S.O. Saklani was on patrol duty. S.O. came in a Government vehicle at 10:20 PM at Police Station accompanied with Neeraj Tiwari. S.O. Saklani along with other police personnel went to P.S. Kaladhungi. S.O. Saklani came back to Police Station at 10:45 PM with a rifle. He was talking with Neeraj Tiwari. S.O. Saklani sat on his chair. Thereafter, Mintu Kanyal came to the police station. He sat in front of S.O. Saklani. He asked S.O. Saklani why he brought his rifle. S.O. Saklani tried to pacify him. In the meantime, one Scorpio car came at the police station. Three persons got down from the car. C.O. Ramnagar also came on the spot. C.O. sat on the chair of S.O. Three persons who got down from the car started raising slogans. Mintu Kanyal got agitated. He started moving around. Constables stopped him near lockup. In the meantime, accused Neeraj Tiwari came from the rear path near small lockup and shot Mintu Kanyal. Mintu Kanyal fell down. The accused has fired three shots. Neeraj Tiwari was apprehended by the police personnel. Neeraj Tiwari said to the police that whatever I had to do, I have done, now you do your job. The injured was taken to hospital. The firing took place at 11:00 PM. In his cross-examination, he has categorically admitted that S.O. Saklani has taken the accused in custody and pistol was also taken in his possession. He did not know what happened to the pistol. He deposed in his cross-examination that three shots were fired from a distance of 1 foot. Two impressions of bullet were also found on the wall of lockup. The bullet which was stuck into wall was taken out by the Investigating Officer.
48. PW2 Sanjay Kumar deposed that he was posted at Police Station Kaladhungi on 22.08.2009. He along with the S.O. Saklani was on patrol duty. They were taking tea at Sagar restaurant. A telephonic message was received that the quarrel has taken place in a restaurant at Naya Gaon. They went towards the restaurant. Two persons were fighting with each other. One person ran away leaving behind his rifle. They tried to chase him but he escaped. Neeraj Tiwari was sitting on the road. Neeraj Tiwari told the police officers that Mintu Kanyal and his companions have administered beatings to him. They came back to the police station. S.O. Saklani left Neeraj Tiwari in the police station and told Diwan that he was going towards restaurant. He also asked the Diwan to send more force. He alongwith S.O. Saklani came back to the Puniyan restaurant. The vehicle of Mintu Kanyal was parked near Puniyan restaurant. At about 11:00 PM when he was taking dinner, he heard the sound of three shots. He left his food and went to the police station. He came to know that Neeraj Tiwari has shot Mintu Kanyal. S.O. Saklani instructed him along with Pratap Singh and driver Dharamveer to take Neeraj Tiwari to a safer place. They took Neeraj Tiwari to Ramnagar Hospital and thereafter to Kaladhungi Hospital. When they were bringing back Neeraj Tiwari near Kaladhungi bus stand, S.O. Saklani met them. S.O. Saklani stopped their vehicle and told them to leave Neeraj Tiwari with him and instructed them to find out the rest of the culprits. The custody of Neeraj Tiwari was handed over to S.O. Saklani along with the medical report. Thereafter, they went to the field. They came back to the police station on 23.08.2009 at 10:00 PM. On 24.08.2009, they were instructed to accompany I.O. Anil Shah. On the instructions of Anil Shah, he along with Inayat Ali came to Naintial. Secret information was received that the accused was present 5 near GGIC, Tallital. Neeraj Tiwari was apprehended at 01:45 PM on Kaccha path. On his search a pistol with Indian ordinance mark was recovered from him along with three live cartridges. The pistol along with the live cartridges was taken into possession and marked exhibit A-3. In his cross-examination, he categorically admitted that he has not seen the person who has fired shots. He has admitted in his cross-examination that Neeraj Tiwari was taken to a safer place. He was in police custody. He was told by S.O. Saklani at 10:00 PM on 23.08.2009 that Neeraj Tiwari has escaped. He was instructed to search for him. He was not aware whether S.O. Saklani has made the accused escape or he has escaped on his own. He was not aware whether any report was lodged after the escape of Neeraj Tiwari.
9. PW3 Harish Chandra Sati testified that he was posted as C.O. Ramnagar on 22.08.2009. At about 10:00 PM he received telephonic call from S.O. Saklani Kaladhungi that quarrel has taken place between Neeraj Tiwari and Mintu Kanyal at Puniyan restaurant. He alongwith his driver Puran Singh left for Kaladhungi. He reached at restaurant. He saw vehicle parked near the restaurant. He was told that S.O. Saklani has taken away the persons who were quarreling. He left for police station Kaladhungi. He noticed a lot of police personnel along with a few persons in police station. Mintu was using abusive language and was standing near women lockup. He sat on the chair of S.O. Saklani. In the meantime, he heard three fire shots. He saw that S.O. Saklani was holding Neeraj Tiwari along with the revolver. Mintu collapsed near lockup. S.O. told him Neeraj has shot Mintu. He asked the police personnel to take action against Neeraj. He instructed the S.O. to take Neeraj to the safer place. S.O. told him that there were some 6 defects in Government Gypsy but he has sent Neeraj Tiwari towards Baleparao in a private vehicle. In his cross-examination, he deposed that S.O. has not snatched pistol from Neeraj Tiwari in his presence but he has admitted that S.O. Saklani has taken the pistol in his possession. He again stated that S.O. has taken the pistol in his presence. He has given the statement to the CBCID that the memo was prepared after taking the pistol into possession. But if, in case, I.O. has written so, he could not explain this. He again stated that S.O. has showed him the pistol and told him that Neeraj has shot Mintu Kanyal with this pistol. Mintu Kanyal was killed at 11:00 PM. He has asked S.O. to take the accused into custody and register FIR and to deposit the pistol in Maalkhana. His orders were not obeyed but he has not taken any action against the S.O. for disobeying his orders. He was taking rest in police station and he did not make any inquiry whether the pistol was deposited in the Maalkhana or not. The S.O. did not tell him the fact that Neeraj Tiwari has escaped.
10. PW4 Puran Singh has deposed that he was working as waiter at Puniyan restaurant at Kaladhungi. Mintu Kanyal came to restaurant at about 8:00 PM with his friends. After sometime, 7-8 people came to the spot. Both the parties were after taking their dinner started to leave. He heard some noise when he was taking his meals. But he has not seen anything. He was not in a position to say whether the table, on which the meal was being served by Dharmendra, Neeraj was present or not.
11. PW5 Vijay Tiwari testified that on 22.08.2009 he along with Tara Negi had gone towards Golapar. They received a telephonic call of Deepak Tiwari at Ramnagar. He told that Mintu Kanyal and Neeraj Tiwari were fighting. They went towards Kaladhungi. They reached 7 Puniyan restaurant at 10:30 PM. One Gypsy stopped. C.O. Ramnagar got down. C.O. made certain inquiries from the staff of the restaurant. They have not seen anyone. They overtook the Gypsy. They reached police station Kaladhungi. S.O. was sitting with Mintu Kanyal. C.O. sat on the chair of S.O. In the meantime, they have heard noise of three fire shots and saw that Mintu Kanyal had collapsed. He had not seen Neeraj Tiwari in Police Station. He has neither seen Neeraj carrying pistol, nor in his presence S.O. Saklani snatched the pistol. He was declared hostile and was cross-examined by learned District Govt. Counsel. In his cross-examination, he categorically deposed that no inquiries were made by the I.O. He was confronted with the statement recorded under Section 161 of Cr.P.C. He has stated that he had not given any statement to the police. He denied the suggestion that in his presence Neeraj Tiwari has fired at Mintu Kanyal and the pistol was also taken into the possession. In his cross-examination by learned Defence Counsel, he deposed that Mintu Kanyal was drunk and was using abusive language with S.O. Saklani and was inquiring why he has taken his rifle. S.O. was carrying pistol from which the fire was shot. He did not know who was shot at Mintu Kanyal, however, Neeraj Tiwari was not on the spot.
12. PW6 Nasim Ahamad was declared hostile. He was cross-examined by the learned District Govt. Counsel. He has stated he has not given any statement to the I.O. nor the contents of the same were read over to him. He did not know Neeraj Tiwari. He denied the suggestion that at the instance of Mintu Kanyal, he went to Kaladhungi police station. He has not witnessed any incident in police station.
813. PW7 Pratap Singh testified that he was posted as S.I. at police station Kaladhungi on 22.08.2009. He was taking rest in his room. He received a message that some people were quarreling at Puniyan restaurant. He went to the police station. S.O. also reached at police station. One person was also accompanying the S.O. S.O. Saklani told him that Mintu Kanyal has beaten him and he has brought rifle of Mintu Kanyal. The S.O. thereafter went to Puniyan restaurant. He also reached Puniyan restaurant. They made search of the premises but did not find anyone. They came back to the police station. After sometime Mintu Kanyal also reached police station. He sat in front of S.O. He asked S.O. to call Neeraj Tiwari. Mintu Kanyal appeared to be drunk. He was asking why he has brought his rifle and thereafter, one Scorpio car entered the premises. Three people came down. They were making inquiries from Mintu Kanyal why he has beaten up their brother. In the meantime, C.O. also came on the spot. S.O. tried to pacify Mintu Kanyal. Since the situation was getting out of control, Mintu Kanyal was taken towards lockup (Hawalat). Lot of police personnel was present on the spot. He went inside the office. He heard the noise of three shots being fired in the Varandha. He saw Neeraj Tiwari with pistol. Neeraj Tiwari told the S.O. that he has done whatever he wanted to do. He alongwith other police personnel apprehended Neeraj Tiwari. S.O.Saklani told them to take Neeraj Tiwari to a safer place. He along with other police personnel left towards Ramnagar. Neeraj Tiwari was medically examined at Kaladhungi. Near bus stand Kaladhungi, S.O. met them. He took over the custody of Neeraj and told them to arrest other co-accused. He was told by S.O. that Neeraj Tiwari has escaped.
Police station was burnt down by the supporters of Mintu Kanyal. He along with Anil Shah, 9 Inayat Ali and Sanjay Kumar reached Nainital in search of Neeraj Tiwari. They received secret information that Neeraj Tiwari was present near GGIC, Tallital. They reached there and nabbed Neeraj Tiwari at 01:45 PM. One silver coloured pistol and three live cartridges were recovered from him. The memo was prepared on the spot and was marked exhibit A-3. In his cross-examination, he categorically admitted that he has not seen the incident. He heard the noise of fire and he came out. Neeraj Tiwari was carrying pistol in his hand. Neeraj Tiwari was taken into custody by the police. The police had already taken the pistol from Neeraj Tiwari. He had admitted in his cross-examination that no G.D. entry was made when Neeraj Tiwari was taken out of police station. He has also admitted that there was no endorsement that he has left for Nainital at the instance of S.O. However, he has made the entry in his personal diary. But, that personal diary was not handed over to the I.O. nor the same was presented before the Court. They have tried to associate independent witnesses at the spot but nobody came forward.
14. PW8 Sher Singh Kanwal deposed that he alongwith his brother-in-law Balwant Singh Kanyal has not gone to take dinner on 22.08.2009 at Puniyan restaurant. Neither quarrel has taken place between his brother-in-law and the accused Neeraj Tiwari nor Neeraj Tiwari in his presence at 11:30-11:45PM shot at Balwant Kanyal. He was declared hostile and cross-examined by learned District Government Counsel. He has denied that his statement was recorded by the police on 22.08.2009. He was at Khurpatal. He received a telephonic call that Balwant Singh has been murdered and his body was taken to Haldwani hospital. He reached Haldwani hospital. He was made to sign on plain papers. He has never lodged any report. He did not know how this report 10 was written. He again reiterated that he has not gone for dinner with his brother-in-law Balwant Singh Kanyal at Puniyan restaurant on 22.08.2009 nor any quarrel has been taken place against Neeraj Tiwari. He also denied categorically that his brother-in-law was shot by Neeraj Tiwari on 22.08.2009. He also denied that some agreement has taken place between him and the accused. He again reiterated in his cross-examination that he has never lodged any report with the police.
15. PW9 Dr. C.M. Bhainsoda has conducted postmortem. According to him, the accused has died due to pallet injuries number 1 and 2. He conducted the postmortem and prepared the postmortem report alongwith team of doctors. The time which has lapsed between the death and postmortem was 24 hours.
16. PW10 Inspector Anil Shah testified that he was posted as Reader with SSP on 23.08.2009. He was associated with the investigation of the matter. He visited the spot on 24.08.2009. They reached at Tallital. They came to know that Neeraj Tiwari was trying to escape towards GGIC, Tallital. Naveen Tiwari was arrested. He disclosed his identity. One silver coloured pistol carrying the impression 'Indian Ordinance' was recovered from him along with three live cartridges. His personal search was carried out. A sum of Rs.200/- was recovered from him. The pistol was taken into the possession and memo was prepared. The copy of the memo was supplied to the accused. The pistol was produced before the Court in the presence of this witness along with three live cartridges. In his cross-examination, he has stated that he did not know whether any G.D. entry was made about the police personnel who were accompanying him. He has also admitted that no steps were taken to procure any 11 independent witness at the time of arrest of the accused and at the time of recovery of pistol.
17. PW11 Bhopal Singh has stated that he, along with Balwant Singh Kanyal, Sher Singh Kanwal, Raju Walia, Khushal Singh, was taking dinner on 22.08.2009 in Puniyan restaurant at Nayagaon. No quarrel has taken place in his presence. They paid their bills. Police came on the spot and took away Neeraj Tiwari with them. Balwant Kanyal went on his motorcycle to police station. He did not go to the police station. Neeraj Tiwari has not shot at Balwant Kanyal between 11:00-11:45 PM. He was declared hostile and was cross-examined by learned District Government Counsel. In his cross-examination, he deposed that he has not given any statement to the police under Section 161 of Cr.P.C. He has gone to Base Hospital, Haldwani. He denied the suggestion that any quarrel took place between Balwant Kanyal and Neeraj Tiwari at Puniyan restaurant. He also denied the suggestion that during his presence on 22.08.2009 Neeraj Tiwari shot at Balwant Kanyal. In his cross-examination by learned Defence Counsel, he denied that any quarrel has taken place between the parties at Puniyan restaurant.
18. PW12 Ram Singh is a formal witness. He has registered the case.
19. PW13 Ram Kishore Saklani testified that he was posted as S.O. police station Kaladhungi on 22.08.2009. He was on patrol duty with the driver Dharamveer and Constable Sanjay Kumar. He received a telephonic message that a quarrel has taken place at Puniyan restaurant. He reached on the spot. He noticed quarrel taking place on the road. Few persons were beating up a person. He rescued one person namely 12 Neeraj Tiwari. He came back to the police station with a double barrel rifle. Thereafter, he came back again to Puniyan restaurant. Neeraj Tiwari was left in the police station. Nobody was found at the restaurant. One person entered the police station in motorcycle and asked for his rifle. Three persons came in Scorpio car in the police station. They were making inquiries from Balwant Kanyal why he has beaten up Neeraj Tiwari. C.O. Ramnagar also reached the spot. Balwant Kanyal started using abusive language. He tried to pacify Balwant Kanyal. All of a sudden, Neeraj Tiwari came towards Verandah and fired three shots at Balwant Kanyal. Balwant Kanyal collapsed. He along with other police personnel nabbed Neeraj Tiwari. C.O. asked them to take a legal action. Neeraj Tiwari was handed over to police. He was told by the relatives of the deceased that they would lodge the report at Haldwani. However, despite that he made the G.D. entry and deposited the pistol after preparing memo in the Maalkhana. According to him, no bullet was found on the walls of the lockup. He again reiterated in his cross- examination that he has grabbed the pistol of Neeraj Tiwari and made the entry in G.D. and deposited the same in Maalkhana. In his cross-examination, he has admitted that he has not lodged any report, since the relatives of deceased have told that they would register the FIR. He has made the entries in G.D but these were gutted in fire. He has also admitted that he has got bail under Section 302 read with other sections. He denied the suggestion that he has got the bloodstains removed.
20. PW14 Satendra Prasad Gangola deposed that he was posted as Head Constable on 22.08.2009 at Kaladhungi police station. A telephonic message was received that a quarrel was taking place in front of Puniyan restaurant. S.O. Saklani was deputed on the 13 spot at about 10.20 PM. S.O. came to police station alongwith Neeraj Tiwari. Thereafter, S.O. again went towards Puniyan restaurant. S.O. came back to police station at 10:45 PM. He deposited one rifle in the Maalkhana. Mintu Kanyal also reached the police station. He made inquiries about the rifle and indulged in loose talk. In the meantime, one Scorpio car came at the police station. C.O. had also come at the spot. C.O. sat on the chair of S.O. Mintu Kanyal was using abusive language near lockup. After sometime, Neeraj Tiwari fired three shots at Mintu Kanyal. Mintu Kanyal collapsed on the spot. S.O. grabbed pistol from the hands of Neeraj Tiwari. C.O. asked S.O. to initiate legal proceedings. The higher officials reached the police station. Neeraj Tiwari escaped. S.O. has told him not to register any FIR without his permission. S.O. has neither handed over the pistol to him after taking it in his possession from Neeraj Tiwari, nor he has deposited the same in Maalkhana. He did not know whether any memo was prepared about the pistol. He also admitted that he has given the statement to the inquiry officer that the accused was arrested with pistol by S.O. and he also told that S.O. Saklani has prepared the memo after arresting the accused and the entry was made in the G.D.
21. PW15 Ganga Singh deposed that he was working in CBCID on 21.10.2009. He was posted at Haldwani. He was made inquiry officer. He started making investigation w.e.f. 21.10.2009. He recorded the statements of the witnesses. He prepared the spot map. He also prepared another spot map on 09.11.2009 of the place from where accused was arrested near GGIC, Tallital. In his cross-examination, he has admitted that no bullet was recovered from the walls of the lockup. He sought permission from PW-13 S.O. Saklani for 14 registration of FIR but he was told that without his permission, FIR should not be registered.
22. PW16 Mahender Singh Negi testified that he was posted at police station Rudrapur on 25.08.2009. He was made inquiry officer. He recorded the statements of witnesses. He visited the spot with forensic team. He recovered one empty cartridge near lockup. Blood spots were also lifted. He also visited Puniyan restaurant. He has also recovered one empty cartridge from the garbage in front of the police station. In his cross-examination, he has deposed that he did not notice any marks of bullet on the walls of lockup. No blood could be lifted from the spot, since the spot was washed by the police personnel. PW7 Pratap Singh has told him that S.O. has told him to throw water in the Varandha and to wash the place with broom and blanket. PW2 Sanjay Kumar has told him that S.O. has searched Neeraj Tiwari before sitting into Jeep. He received the licensed pistol from the Maalkhana.
23. According to the contents of FIR dated 23.08.2009, incident has happened on 22.08.2009 between 10:30- 11:45 PM. However, the FIR has been registered on 23.08.2009. C.O. told the S.O. to do the needful by registering the case, however, the FIR was not registered by S.O. Saklani PW13 on the pretext that the relatives have undertaken to register the FIR.
24. It has come in the statement of PW15 that the S.O. Saklani has ordered his subordinates not to register FIR without his permission. The FIR ought to have been registered promptly, since it was a serious matter where a person had been shot dead in the police premises.
25. The FIR was registered at the instance of Mr. Sher Singh Kanwal, S/o Mathura Singh. It is stated in the FIR that on 22.08.2009 at 09:30 PM, Balwant Singh 15 Kanyal, Rajiv Kumar Walia, Bhupal Singh, Khushal Singh were taking dinner and the fighting ensued between Balwant Singh and Neeraj Tiwari. However, surprisingly, PW8 Sher Singh Kanyal has even denied that he had gone to Puniyan restaurant on 22.08.2009 in the company of Baldev Singh. He has even denied that any quarrel took place between the Balwant Singh Kanyal and the accused. He has denied that the accused had fired at Balwant Singh Kanyal. He was declared hostile and cross- examined by learned District Government Counsel. In his cross-examination, he deposed that he was at his home on 22.08.2009. He came to know about the murder of Balwant Singh Kanyal over telephone. He did not know how the FIR was registered. In his cross-examination, he has denied the suggestion that he had gone to restaurant in the company of brother-in-law. It is specifically stated in the FIR that Neeraj Tiwari was taken to the police station along with Balwant Singh Kanyal. However, it has come in the record that Balwant Kanyal had gone to the police station on his motorcycle and was inquiring from PW13 why his rifle had been brought by him.
26. According to PW4 Puran Singh, no quarrel took place between the parties. He was not in a position to say whether Dharmendra (waiter) was serving Neeraj Tiwari.
27. PW5 Puran Singh, another independent witness, has also denied the case of the prosecution. He had not seen Neeraj Tiwari at the place of fighting. He had not seen him carrying a pistol. He was declared hostile and was cross-examined by learned D.G.C. He has even denied the recording of statement under Section 161 of Cr.P.C. In his cross-examination by learned District Govt. Counsel, he has denied the presence of Neeraj Tiwari on the spot.
1628. PW6 Naseem Ahamad was declared hostile. He was cross-examined by learned District Govt. Counsel. He denied the suggestion that he had gone to the police station at the instance of Mintu Kanyal. He had not seen any incident. He was not familiar with Neeraj Tiwari. Another person Bhupal Singh, who according to the contents of FIR, was present on the spot, has been examined as PW11. He deposed that he was taking dinner in the company of Balwant Kanyal. However, he has denied the suggestion that any quarrel had taken place. Police came on the spot and took over away Neeraj Tiwari. Balwant Kanyal went to the police station on motorcycle. He has not gone to the police station. In his presence, Neeraj Tiwari has not shot at Mintu Kanyal. He was declared hostile and was cross-examined by learned District Govt. Counsel.
29. It is thus evident that none of the independent witnesses have supported the case of the prosecution and most of them were declared hostile. Now, the Court would advert to the statement of the official witnesses.
30. PW1 has deposed that on 22.08.2009 he was on Sentry duty. A telephonic message was received that some quarrel was going on at Puniyan restaurant. S.O. Saklani (PW13) was on patrol duty. S.O. came back to the police station at 10:20 PM. Neeraj Tiwari was with him. Thereafter, again S.O. went to the spot. Neeraj Tiwari stayed back. S.O. came back to police station at 10:45 PM. S.O. sat on his chair. In the meantime, Mintu Kanyal also entered the police station. He sat in front of S.O. In the meantime, one Scorpio car reached at the police station. Three person got down. C.O. Ramnagar also came on the spot. Mintu Kanyal was agitated. He remained roaming. He was stopped by the police people near small lockup. In the meantime, Neeraj Tiwari came from kaccha 17 path and fired at Mintu Kanyal. Mintu Kanyal collapsed. S.O. nabbed Neeraj Tiwari. The incident took place at 11:00 PM. In his cross-examination, he has admitted that there were 40-50 people present in the police station. He has very specifically stated in the cross-examination that pistol was taken into possession by S.O. Saklani. He has also deposed that bullet which was lodged on the wall of the lockup was taken out by the I.O.
31. PW2 Sanjay Kumar is also a material witness. He deposed that on 22.08.2009, he was on patrolling duty with PW13 S.O. Saklani. They went towards the restaurant. The fighting was going on. One person has left behind his rifle. He could not be nabbed. Neeraj Tiwari was lying in injured condition. He was taken to police station. The team came back to the police station with Neeraj Tiwari and rifle. Thereafter, S.O. again left for the restaurant. He came back to the police station. He heard the noise of fire shots at police station. Mintu Kanyal was taken towards Haldwani. He came to know that Neeraj Tiwari has shot at Mintu Kanyal. He was directed to take Neeraj Tiwari to a safer place and initially they went to Ramnagar Hospital and thereafter, they went to Kaladhungi Hospital. When they came back, near bus stand Kaladhungi, S.O. Saklani met them. He stopped his vehicle and told them to leave Neeraj Tiwari with him and instructed them to find out the rest of the culprits. They left Neeraj Tiwari in his custody and came back to the police station. On 23.08.2009 they came to know that new I.O. was Anil Shah and they should accompany him. He along with Inayat Ali came to Naintal and arrested the accused at 01:45 PM. One pistol with 'Indian ordinance mark' was recovered from him along with three live cartridges. The pistol and live cartridges were duly sealed. He had not seen the person firing at the deceased. He was 18 told on 23.08.2009 by PW13 that Neeraj Tiwari has run away. He was not aware whether S.O. has made the accused escape or he has escaped on his own. He was not aware whether any report was lodged after the escape of Neeraj Tiwari.
32. PW3 Harish Chandra Sati deposed that he came to the police station and sat on the chair of S.O. He was making inquiries and in the meantime, he heard the noise of three fire shots. He saw that S.O. Saklani (PW13) has grabbed Neeraj Tiwari with a revolver and Mintu had collapsed. PW13 has told him that Neeraj Tiwari has shot dead Mintu Kanyal. He asked PW13 to take action against the accused. He has admitted in his cross-examination that he had told CBCID that after the incident, S.O. had taken possession of pistol. According to him, Mintu Kanyal was shot dead at 11:00 PM. He asked the S.O. to take the accused in custody and to register the FIR and to deposit the pistol in Maalkhana. However, he categorically deposed that his orders were not obeyed by his subordinates. He was not in a position to ascertain whether the pistol was deposited in Maalkhana or not. He was not apprised by S.O. that Neeraj Tiwari has escaped.
33. PW7 Pratap Singh deposed that he was posted on 22.08.2009 at Kaladhungi police station. He reached the police station at 10:00 PM. PW13 reached the spot. He was accompanied by a person who told that Mintu Kanyal has beaten him. After sometime Mintu Kanyal also reached the police station. He seemed to be drunk. He inquired about his rifle from PW13. Mintu Kanyal was agitated. He was taken towards lockup. Lot of police personnel were present on the spot. He went inside his office. Then, he heard the noise of three fire shots. He saw Neeraj Tiwari holding pistol in his hands. Neeraj Tiwari was apprehended. He was told by superior officers to take 19 Neeraj Tiwari to a safer place. They went towards Ramnagar. They tried to medically examine him at Ramnagar. But later on, he was examined at Kaladhungi hospital. When they were coming back, they met PW13. PW13 took the custody of Neeraj Tiwari and told other officers to trace out remaining culprits and they came back to the police station. The information was received that the police station was raided by the supporters of Mintu Kanyal and in the confusion, Neeraj Tiwari has escaped. He alongwith Inayat Ali and Sanjay Kumar was directed to arrest the I.O. They went to Nainital and arrested Neeraj Tiwari at 01:45 PM. In his cross- examination, he deposed the manner in which the incident has happened. He came out when he heard the noise of three fire shots. Neeraj Tiwari was nabbed by the police personnel.
34. PW10 Anil Shah deposed that the accused was nabbed at Tallital and a silver coloured revolver with mark of 'Indian Ordinance' alongwith three cartridges were taken into possession. He has also admitted where the accused was arrested, there were houses located around him.
35. PW13 Ram Kishore Saklani was the S.O. He has deposed that he was on patrolling duty. He was told that an incident has taken place at a restaurant. He went to the restaurant and came back. C.O. also came on the spot. He tried to pacify Balwant Kanyal. In the meantime, Neeraj Tiwari came on the spot and fired three shots at Balwant Kanyal. Balwant Kanyal collapsed. He nabbed Neeraj Tiwari. He was asked by C.O. to take legal recourse. According to him, FIR was not registered for the reason that relatives were insisting to register the FIR themselves. He made necessary entries in G.D. and deposited the pistol in Maalkhana. In-charge of 20 Maalkhana was present on the spot. In his cross- examination he deposed that no bullet was recovered from the walls of the Maalkhana. He again reiterated that pistol was deposited in the Maalkhana.
36. PW14 Satendra Prasad Gangola was posted as a Head Moharrir at police station Kaladhungi on 22.08.2009. PW13 came in the police station at 10:20 PM along with Neeraj Tiwari. Thereafter, he again went back to Puniyan restaurant and came back on 10:45 PM. In the meantime, Mintu Kanyal also reached the spot. C.O. also reached there. The accused fired three shots at Mintu Kanyal. Mintu Kanyal collapsed near the lockup gate. PW13 nabbed the accused and also took the pistol into his possession. In his cross-examination, he denied that pistol was handed over to him by S.O. Saklani (PW13).
37. Now, we will advert to the weapon of offence allegedly used by the accused.
38. PW1 Dangiri in his statement has categorically deposed that the accused was apprehended by S.O. immediately. The pistol was also taken into possession by S.O. i.e. PW13.
39. PW2 Sanjay Kumar deposed that the pistol was recovered by them at Mallital at 01:45 PM from the possession of accused.
40. PW3 Harish Chandra Sati, C.O. Ramnagar, has deposed that he had seen the pistol in the hands of PW13 and he has asked him to deposit the same in the Maalkhana.
41. PW7 Pratap Singh deposed that the pistol was recovered on 23.08.2009 at Tallital. PW10 Anil Shah has also deposed that pistol was recovered at Tallital, Nainital.
2142. PW13 Ram Kishan Saklani, S.O. is the material witness. According to him he has grabbed the pistol from the accused and deposited the same in the Maalkhana of police station.
43. PW14 Satendra Prasad Gangola has deposed that the S.O. nabbed the accused and taken the pistol in his hands. Thus, according to PW1, PW3, PW14, the pistol was snatched by S.O. and he took the same into his possession.
44. According to PW3 Harish Chandra Sati, he has ordered to deposit the pistol in Maalkhana. However, PW2 Sanjay Kumar, PW7 S.I. Pratap Singh and PW10 Inspector Anil Sah have deposed that they had gone in search of accused. He was nabbed near GGIC, Tallital and pistol was recovered from him and memo was prepared.
45. Only one pistol was involved in the incident and if the pistol had already been taken into possession on 22.08.2009, then how the same could be recovered from the accused on 23.08.2009 at 01:45 AM at Tallital. The police sent the pistol for expert examination which was recovered on 23.08.2009 and not the one which was captured on 22.08.2009. The accused was apprehended, as per the statement of official witnesses, in the police station. He was initially taken to Ramnagar hospital and thereafter to Kaladhungi hospital and when he was coming back, PW13 met the other police personnel at Kaladhungi bus stand and took the custody of Neeraj Tiwari. The circumstances, in which Neeraj Tiwari escaped, have at all not been explained by the prosecution. In case, he had escaped, an FIR to that effect ought to have been registered. It has come on record that no FIR was registered by the police in such a serious matter. The role of PW13 S.O. R.M. Saklani was also not 22 above board. He has ordered the police officers to destroy the scene of crime by ordering removal of bloodstains by throwing water and blanket. He was ordered to register the case but he has refused to do so. Rather, he has ordered to his subordinates not to proceed with the matter.
46. According to PW1 Constable D.G. Goswami, there were bullet marks on the wall of lockup and one bullet was recovered from the wall. However, as per the evidence led by the Investigating Officer, no bullet was taken out from the wall. There is variance in the statements of the witness about the place from where the empty cartridges were picked up by the I.O. The incident had happened within the police premises, however, one cartridge has been recovered from the garbage in front of the police station and one from the police premises.
47. The case of the prosecution has not been even supported by the brother-in-law of deceased. He has denied the registration of FIR. He has denied that he has gone to restaurant for dinner with his brother-in-law. He came to know about the murder when he was at Khurpatal.
48. Once the pistol was deposited in the Maalkhana, how it reached the accused and again recovered from him at Mallital, has not at all been explained by the prosecution. There is a detailed procedure about the manner, in which, the case property is deposited in Maalkhana and when it is taken out. It was such a serious matter in which FIR should have been registered immediately. There is variance in the statement of official witnesses about the manner in which the incident happened and the recovery of weapon offence was made.
2349. In this case, the independent witnesses were declared hostile. The statement of official witness can be taken into consideration but in the present case, the same is not trustworthy. There are major contradictions which have rightly been discarded by the trial Court. The place of occurrence has also not been correctly depicted in the Spot Map.
50. No G.D. entry was made when the officials were sent to nab the accused at Nainital. It is mandatory for the police officials to make entry in G.D. before leaving the police station. The accused was nabbed at Tallital, there were houses located nearby the place and independent witnesses were also available but no independent witness was associated at the time of arresting the accused and taking the pistol into possession at Tallital.
51. In view of the discussion made hereinabove, we are of the considered view that the Trial Court was perfectly justified in recording the finding of acquittal of accused. Accordingly, there is no merit in these appeals and the same are hereby dismissed.
52. Let the lower court record, along with a copy of this judgment, be transmitted to the Court below.
53. Pending application, if any, also stands disposed of.
(Sharad Kumar Sharma, J.) (Rajiv Sharma, J.) NISHANT