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2004 DIGILAW 377 (UTT)

Chandan Singh v. State

2004-12-17

RAJESH TANDON, V.S.SIRPURKAR

body2004
JUDGMENT Hon'ble Rajesh Tandon, J. : Present appeal has been filed against the judgment and order dated 30.5.2001, passed by Sri Shiv Shankar, Sessions Judge, Tehri Garh-wal, in Sessions Trial No. 4 of 1999, convicting the accused-appellant Chandan Singh under section 302 I.P.C. and sentencing him to undergo imprisonment for life. 2. Briefly stated the prosecution case is that accused Chandan Singh accompanied by his son Vipendra aged about five years, had gone to Kandikhal on 28.10.1998. According to the prosecution story accused-appellant Chandan Singh pushed his son into the cliff from roadside due to which he sustained fatal injuries. One Sri Chandanpuri recovered him from the ditch where he had fallen. The boy was given medical aid but he succumbed to the injuries sustained. The informant Vikram Singh, who is the brother of accused-appellant and resides at Delhi, was informed .by telephone. He came to his village on 29.10.1998 and lodged written report Ex. Ka- 7 at the Police Station. According to the prosecution•story the inciden.t was witnessedby Sri Prem Singh Negi, Chandpuri Tailor of Kandikhal, Dinesh Singh, Roshan Singh Kaintura and Jabar Singh, 3. On the basis of written report F.I.R. Ex. Ka-8 was prepared and a case under section 302 I.P.C. was registered at Police Station, Tehri at G.D. No. 35 dated 29.10.1998 at 20.35 hrs. 4. The Investigating Officer visited the place of occurrence and prepared inquest report Ex. Ka-2, and other papers like Ex. Ka-3, Ex. Ka-4, Ex. Ka-5 and thereafter dead body was sent for post-mortem examination. The Investigating Officer prepared site plan of the place of occurrence Ex. Ka-13. He also took blood stained and simple stones from the place of occurrence and sealed them in separate bundles. He also recovered chappal of the deceased from the place of occurrence and prepared its memo Ex. Ka-11. After completing the investigation, charge-sheet Ex. Ka-10 was submitted against the accused Chandan Singh. 5. The Sessions Judge, charged the accused for the offence punishable under section 302 LP.C. The accused pleaded not guilty and claimed to be tried. 6. The prosecution in order to prove its case examined P.W.1 Dr. Lalit Kishor Gusain. He conducted postmortem examination of the deceased. The doctor found the following antemortem injuries on the body of the deceased : (1) Lacerated wound on right side of occipital region of scalp, oblique, 2 cms. x 0.5 cm. x bone deep. 6. The prosecution in order to prove its case examined P.W.1 Dr. Lalit Kishor Gusain. He conducted postmortem examination of the deceased. The doctor found the following antemortem injuries on the body of the deceased : (1) Lacerated wound on right side of occipital region of scalp, oblique, 2 cms. x 0.5 cm. x bone deep. (2) Contusion on right side of scalp just above the right ear in an area 18 cms. x 10 cms., bluish back in colour in the direction of scalp. There is haematoma beneath injury No.2 in an area 20 cms. x 16 cms. There is vertical linear fracture of right side of. frontal bone, just above the mid paint of right eye orbit, 9 cms. in length. On removing the skull cap, meninges are congested. There is subdural haematoma on outer surface of both cerebral hemispheres. Brain congested. (3) Multiple abraised contusion on middle part of back which are dressed; in an area 23 cms. x 21 cms. Bluish black in colour. (4) Contusion on dorsal aspect of 2nd phalanx of left ring finger .5 cm x .3 cm. Bluish black in colour. (5) Contusion on lateral aspect of lower part of left leg just above the lateral malleolus of left ancle joint 3 cms. x 1 cm. Bluish black in colour. (6) Abraised contusion left side of forehead, 3.5 cms. above the left eye brow in an area 1.5 cm. x .5 cm, bluish black in colour. 7. In the opinion of the doctor, the cause of death was coma due to antemortem head injuries No. 1 and 2, caused by blow of hard blunt object. It was further opined that the death occurred 2 days ago. The doctor proved the post-mortem report as Ex. Ka-l.• 8. P.W.2 Jeetpal Singh is a forrnal witness. He has proved inquest report, photo, challan, sample of seal, letter to C.M.O. Ex. Ka-2 to Ex. Ka-6, respectvely. 9. P.W.3 Vikram Singh is the informant of the case. He has proved written report Ex. Ka-7. In his examination in-chief this witness has stated that some person of the village on 28.10.1998 had informed him by telephone that Chandan Singh was ill. He immediately started from Delhi and reached his village on 29.10.1998. On reaching his home he was informed that accused Chandan Singh pushed his son into the cliff due to which he died. Ka-7. In his examination in-chief this witness has stated that some person of the village on 28.10.1998 had informed him by telephone that Chandan Singh was ill. He immediately started from Delhi and reached his village on 29.10.1998. On reaching his home he was informed that accused Chandan Singh pushed his son into the cliff due to which he died. After one or two hours of his reaching home, police had reached there. The police made inquiry from him but he stated that he knew nothing, as he was not at his home. 10. P.W.4 Roshan Singh Kaintura has stated that on 28.10.1998 at about 11.00 AM he alongwith other persons was working on the pipe line of Jal Nigam. He saw the accused alongwith a boy and both persons were sitting on the road. They heard some cry from the side of the accused after 10 to 15 minutes. Then he saw the accused running towards Kandikhal. He deposed that he tried to apprehend him, but he started pelting stones. Thereafter, he started running towards Chamba. Thereafter, Dinesh Singh Chandpuri went downwards and brought to the injured boy on road. They rushed alongwith the injured to Kandikhal from where the doctors had sent the injured to Chamba. 11. P.W.5 Prem Singh has stated in his examination-in-chief that he had seen accused Chandan Singh alongwith his son on the date of incident at Kyarkuli Tok, going towards Chamba on foot. Thereafter, he saw Vipin at Kandikhal in unconscious state. This witness did not support the prosecution case and he was declared hostile. 12. P.W.6 Jaber Singh has stated that on the date of incident he saw deceased and accused Chandan Singh going towards Chamba on foot. The accused informed the witness that he was going with his son for a walk. This witness also did not support the prosecution case and was declared hostile. 13. P.W.7 Constable 101 C.P. Vindeshwar Prasad was posted as a Constable Clerk in Police Station, Tehri on 29.10.1998. This witness has stated that on the basis of written report Ex. Ka-7, he prepared chick EI.R. and registered the case in the G.D. at serial number 35 at 20.35 hrs. He proved copy of G.D. Ex. Ka-9. This witness is a formal witness. 14. P.W.8 is Inspector B.R. Arya. He has stated that on 27.11.1998 he was posted as Incharge, Kotwali, Tehri, Garhwal. Ka-7, he prepared chick EI.R. and registered the case in the G.D. at serial number 35 at 20.35 hrs. He proved copy of G.D. Ex. Ka-9. This witness is a formal witness. 14. P.W.8 is Inspector B.R. Arya. He has stated that on 27.11.1998 he was posted as Incharge, Kotwali, Tehri, Garhwal. The investigation of the case was transferred to him from S.1. Nasim Ahamad. He recorded the statements of witnesses. He has stated that he is acquainted with the writing and signature of S.1. Nasim Ahamad, who conducted part of investigation in this case. He proved recovery memo Ex. Ka-6 , and site plan Ex.Ka-11. He is also a formal witness. 15. The accused in his statement under section 313 Cr.P.C. has denied the prosecution case and has stated that he has been falsely implicated in this case. He has given his defence in the following words: The accused has not examined any witness in his defence. 16. On the basis of the evidence laid by the prosecution the Sessions Judge, Tehri Garhwal has held the accused Chandan Singh guilty for the offence punishable under section 302 of the Indian Penal Code, and convicted and sentenced the accused to undergo imprisonment for life. Feeling aggrieved the present appeal has been filed. by accused Chandan Singh. 17. We have heard Sri Dharam Veer, Sr. Advocate, Amicus Curiae for the accused-appellant and Sri D.K. Sharma, Government Advocate for the State and have gone through the record of the rase. 18. The Sessions Judge has convicted the accused-appellant for the offence of murder of his minor son aged five years only, on the basis of eight circumstances, which he has described in his judgment point-wise in the following manner : (i) The first circumstances is that the deceased Vipendra Singh was the son of accused Chandan Singh, which has been proved by the statements of witnesses and also by the admission of the accused. (ii) The second circumstance described by the Sessions Judge is that the deceased Vipendra Singh was last seen in the company of the accused appellant going towards Chamba from Kandikhal. (iii) The third circumstance is that de-ceased was seen sitting with• accused Chandan Singh on the side pf the road just above the precipice in Kyarkuli Tok. (iv) The fourth circumstance is that accused was seen by the witnesses running from the site of occurrence. (iii) The third circumstance is that de-ceased was seen sitting with• accused Chandan Singh on the side pf the road just above the precipice in Kyarkuli Tok. (iv) The fourth circumstance is that accused was seen by the witnesses running from the site of occurrence. (v) The fifth circumstance on which the Sessions Judge placed reliance for cc"wicting the accused appellant is that the deceased was taken out from the Gadera to Kandikhal for his treatment but he could not survive. (vi) The sixth circumstance which the Sessions Judge has described is that Vipendra was seen in unconscious condition in Khandikhal by P.W.5 Prem Singh but accused was not present there. (vii) The seventh circumstance on which the Sessions Judge has placed reliance for convicting the accused is that the accused did not raise any alarm at the time when the boy fell down into the gorge and did not make any attempt to recover him from the cliff. (viii) The eighth circumstance according to the Sessions Judge is that accused-appellant himself did not take the injured son to the doctor and he was taken to the hospital by other persons. 19. It is well settled principle of law that in case where the evidence is purely circumstantial in nature, the facts and circumstances from which the conclusion of guilt is sought to be drawn must be fully established beyond any reasonable doubt an such circumstances must be consistent and unerringly point out the guilt of the accused and the chain of circumstances must be complete 20. It the present case the circumstances relied upon by the Sessions Judge for convicting the accused-appellant under section 302 I.P.C. for intentionally causing the death of his minor son Vipendra aged about five years, are neither consistent nor unerringly point out towards the guilt of the accused. (i) The first circumstance that has been described by the Sessions Judge is that the deceased was the son of the accused. This is an admitted fact and is no circumstance to connect the accused with the murder of the deceased. (ij) The second and third circumstances are that the deceased was last seen in the company of the accused sitting on the road side just above the diff. This is an admitted fact and is no circumstance to connect the accused with the murder of the deceased. (ij) The second and third circumstances are that the deceased was last seen in the company of the accused sitting on the road side just above the diff. This fact is also admitted to the accused but this circumstance does not at all go against the accused as he was the custodian of the boy and therefore, the boy was with him. (iii) The forth, fifth and sixth circumstances which have been described by the Sessions Judge regarding running of the accused from the place of occurrence and regarding his absence while his son was taken to the hospital after recovery from the gorge but for the reasons detailed in the foregoing paragraphs, these circumstances also do not help the prosecution in any way to fasten the guilt on the accused-appellant. (iv) The seventh and eighth circumstances which have been relied upon by the Sessions Judge are that neither the accused raised any alarm at the time of incident nor he had taken his injured son to the hospital himself but for the discussion made in the forgoing paragraphs, these circumstances are not sufficient to hold the accused guilty of the crime of murder. 21. The circumstance, which plays important role in the case of murder, is the motive of the accused for committing murder. In the present case, evidence regarding motive of the accused for committing' murder is completely missing. It is against the human nature that a person would murder his five years old son without having any strong motive. Neither in the first information report nor in the statement of any witness there is a single whisper regarding the motive of the accused to cause death of his own minor son. As against this, informant pw. 3 Vikram Singh, who is the real brother of the accused has stated in his cross-examination to the following effect: Further from the evidence of PW.6 Jaber Singh, it is also proved that the accused had much intimacy with his sort and there was no reason for the accused to commit murder of his son. This witness states in his cross- examination as under: 22. The prosecution has examined PW.4 Roshan Singh Kaintura, PW.S Prem Singh and pw. 6 Jaber Smgh as witnesses of facts. This witness states in his cross- examination as under: 22. The prosecution has examined PW.4 Roshan Singh Kaintura, PW.S Prem Singh and pw. 6 Jaber Smgh as witnesses of facts. Out of these witnesses P.W.S Prem Singh and PW.6 Jaber Singh did not support the prosecution case in their statement-in-chief and they were declared hostile by the prosecution. Opportunity was given to the prosecution to cross examine these witnesses but nothing has come out from their cross-examination to connect the accused with the crime. Thus, there remains the only statement of P.W. 4 Roshan Singh Kaintura. 23. P.W.4 Roshan Singh in his cross-examination has stated that he has not seen the accused pushing the. boy towards the cliff. He assumed the same on his own imagination and then he alongwith Chandpuri ran towards the accused to apprehend him. He states as under: This witness in his cross-examination has further admitted possibility of falling the boy into the cliff accidentally. He states as under: 24. Thus, from the above statement of P.W.4 Roshan Singh it is amply proved that neither he saw the accused-appellant pushing the boy towards the cliff nor he saw the accused beating the boy. According to him he saw the accused coming towards them. According to this witness, firstly he and Chandpuri chased the accused and later on Chandpuri had recovered the injured boy from the gorge. P.W.4 Roshan Singh has stated as under: 25. Thus, from the statement of P.W.4 it is clear that he and Chandpuri chased the accused when he' was coming towards them and accused fled out from the seen of occurrence due to the fear of this witness and his companions. 26. Thus, the statement of P.W.4 Roshan Singh does not help the prosecution case in any way, to fasten the guilt of murder on the accused-appellant. On the other hand it negates the circumstance of the conduct of accused• i.e. to run away from the site of occurrence, on which much reliance has been placed by the Sessions Judge to convict the accused-appellant. 27. The first information report on the basis of which the entire prosecution case stands, itself appears to be concocted and lodged after consultation with the police. The incident had taken place on 28.10.1993 while the report has been lodged on 29.10.1998 at 8.35 PM by P.W.3 Vikaram Singh, who is the real brother of accused Chandan Singh. 27. The first information report on the basis of which the entire prosecution case stands, itself appears to be concocted and lodged after consultation with the police. The incident had taken place on 28.10.1993 while the report has been lodged on 29.10.1998 at 8.35 PM by P.W.3 Vikaram Singh, who is the real brother of accused Chandan Singh. Informant Vikaram Singh is employed at Delhi and he came to his home after receiving information regarding the illness of Chandan Singh from some villager. In his statement P.W.3 Vikaram Singh has stated that police had come there after one or two hours, when he reached the village. He submitted the report of incident at Police station, Tehri. He states as under: 28. In his written report EX.ka-7 the informant has written the names of eyewitnesses of the occurrence but he . did not disclose the name" of the person from whom he collected the information regarding the occurrence. This• witness has admitted that he has written the names of the witnesses, who saw the occurrence, on the dictation of the police. He states as under: 29. Thus, from the statement of P.W.3 Vikaram Singh, it is clear that the first information report was lodged by him after consultation and deliberation with the police to implicate the accused-appellant in the case. In fact the informant had neither any personal knowledge of the occurrence nor he acquired information from any witness of the occurrence but he scribed the written report Ex.K-7 on the dictation of the police. 30. Informant P.W.3 Vikaram Singh has also stated that there are other family members resides in the village which includes his father who is a retired person from the Bank, his mother, nephew and wife of Chandan Singh. It is surprising that none of the family members of the accused, except P.W.3 Vikaram Singh has come forward to lodge the report with the police and none of them have deposed about the motive of the accused to commit the murder of his own son, nor the Investigating Officer examined them. 31. Thus, the written report EX.Ka7 is concocted and fabricated and was prepared after deliberation and, consultation with the police to develop the circumstances for false implication of accused-appellant Chandan Singh in the case. We strongly disapprove the conduct of Police Officials of Police Station, Tehri in this regard. 32. 31. Thus, the written report EX.Ka7 is concocted and fabricated and was prepared after deliberation and, consultation with the police to develop the circumstances for false implication of accused-appellant Chandan Singh in the case. We strongly disapprove the conduct of Police Officials of Police Station, Tehri in this regard. 32. One of the circumstances, on which the Sessions Judge has placed much strength, is regarding abscondence of the accused from the place of occurrence and his conduct of not attending the injured son at the hospital and after his death at his home. Absconding by itself may not be a positive circumstance consistent only with the hypothesis of guilt of the accused because it is not unknown that even innocent persons may run away. for fear of being falsely involved in a criminal case. In the present case from the evidence on record the circumstance of running, away by the accused from the place of incident leads to a decisive implication of innocence of the accused. P.W.4 R6shan Singh has stated in his statement that he saw the accused coming towards them and when they chased him he ran away towards Chamba. They came to know regarding falling of the boy into the gorge later on. It might be possible that accused-appellant went towards P.w. 4 Roshan Singh and Chandpuri for seeking their help to recover his son from the gorge but further due to fear he fled away. It might be possible that the accused had lost balance of mind due to shock and sorrow on account c f falling his lovable son into the sloppy cliff and he remained wondering in a senseless condition. Another reason, which may be quite natural is that, as the son of the accused fell down into the sloppy cliff while he was in the custody of the accused and due to the sense of embarrassment, he could not muster court" age to come before the mother of the deceased boy and other members of the family. Whatever the position may be, but the circumstance of absconding of accused in this case, leads to no decisive implication, nevertheless it has any utility to form a link with other circumstantial evidence. In Padala Veera Reddy v. State of A.P, it was laid down that when a case, rests upon circumstantial evidence, such evidence. must satisfy the following tests: (See pp. In Padala Veera Reddy v. State of A.P, it was laid down that when a case, rests upon circumstantial evidence, such evidence. must satisfy the following tests: (See pp. 710-11, para 10) "10.(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. " 33. In the present case, the Sessions Judge has not scrutinised the evidence on record according to the principles of law laid down by the Apex Court in its various pronouncements. 34. It is often said that though witnesses may lie, circumstances will not but at the same time it must cautiously be scrutinised to see that the incriminating circumstances are such as to lead only to a hypothesis of guilt and reasonably exclude every possibility of innocence of the accused. There can also be no hard and fast rule as to the appreciation of evidence in a case and being always an exercise pertaining to, arriving at a finding of fact the same has to be in the manner necessitated, or warranted by the peculiar facts and cir-cumstances of each case. The formidable incriminating circumstances against: the appellant, as far as mentioned in his judgment and relied upon by the Sessions Judge are as under: (i) Accused-appellant took the boy with him to Kandikhal (ii) The deceased boy was last seen in the company of the accused. (iii) Abscondance of the accused from his home and not attending the deceased at the hospital. 35. The whole effort and endeavour in this case should be to find out whether the crime was committed by the appellant and the circumstances proved themselves into a complete chain unerringly pointing to the guilt of the appellant. (iii) Abscondance of the accused from his home and not attending the deceased at the hospital. 35. The whole effort and endeavour in this case should be to find out whether the crime was committed by the appellant and the circumstances proved themselves into a complete chain unerringly pointing to the guilt of the appellant. In the instant case, from, the appreciation and scrutiny of the evidence, it is quite apparent that; (i) None of the circumstances tried to adduce by the prosecution through the evidence, leads to a hypothesis of the guilt of the accused but against that, we find that the evidence laid by the prosecution itself supports the defence version that the death of the deceased boy was caused by accidentally falling down into a sloppy cliff. There being no motive for the accused-appellant to commit the murder of his• minor son. (ij) The first information report was lodged after consultation and deliberation with the police and was scribed on the dictation of the police. (Hi) That the grand father of the deceased• boy alongwith other family members was present at his home but none of them came forward to lodge the report with the police immediately after the occurrence and the first information report was lodged after more than 32 hours, by the uncle of the deceased who came from Delhi. (iv) The accused-appellant went towards the P.w. 4 Roshan Singh and other persons, who were working on the pipeline of Jal Nigam to seek their help but when they chased the accused appellant, he fled away from the place of occurrence due to fear and remained absent from his home due to sense of embarrassment. Thus, the circumstance of so-called absconding of• accused does. not go to help the prosecution case, in any way. (v) P.w. 4 Roshan Singh Kaintura, who has supported the prosecution case in his examination-inchief, has admitted in his cross-examination that neither he saw the accused beating his son nor he saw the boy falling down into the cliff. He categorically stated that his statement that the accused appellant pushed the boy into the cliff was the work-out of his surmise and imagination. (vi) The defence version given by the accused-appellant in his statement under section 313 Cr.P.C. is more probable than the prosecution story. 36. He categorically stated that his statement that the accused appellant pushed the boy into the cliff was the work-out of his surmise and imagination. (vi) The defence version given by the accused-appellant in his statement under section 313 Cr.P.C. is more probable than the prosecution story. 36. Thus, in view of the above discussion, we find that the prosecution has utterly failed to prove the guilt of the accused-appellant for intentionally causing death of his son Vipendra by pushing him into a sloppy cliff, punishable under section 302 of the Indian Penal Code, and the Sessions Judge, Tehri Garhwal was not justified by convicting and sentencing the appellant for the offence of murder. . 37. Consequently, the appeal is al" lowed. The judgment and order dated 30.5.2001, passed by the Sessions Judge, Tehri Garhwal is set aside and accused-appellant Chandan Singh is acquitted. The appellant is in jail. He be released forthwith, if not wanted in any other case. 38. Let a copy of this order be sent to the Court below for needful action. Appeal Allowed.