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2005 DIGILAW 312 (UTT)

Dev Dutt @ Ram Dutt v. State

2005-07-30

B.S.VERMA, IRSHAD HUSSAIN

body2005
Judgment (Per: Hon'ble Irshad Hussain. J.) 1 Accused Dev Dutt is in appeal from his conviction and sentence to imprisonment for life under Section 302/34 I.P.C. and Rigorous imprisonment for five years under Section 201 I.P.C., per judgment dated 18-4-1985 passed by the then II Additional Sessions Judge, Nainital in sessions trial No. 44/1984. 2. Briefly stated the prosecution story as emerged from the F.I.R. and evidence was as under :- On 13-9-1982 in the early hours of the morning one Chandeshari, the servant of informant Dilbag Singh (P.W.1) found a dead body lying in a ditch towards north of Kashipur-Gadarpur road near Tali Farm of the said Informant and within the circle of Police Station Bazpur, District Nainital. Informant then prepared written report, Ext.Ka.1 and delivered it at P.S. Bazpur at 7.30 A.M. on 13-91982 and on its basis F.I.R., Ext. Ka.19 was registered under Section 302 I.P.C. against unknown assailants. By that time the Identity of the dead body was also not confirmed. 3. P.W.13, Ranbir Singh started Investigation of the case. He reached the place where the dead body was lying and held inquest on it. He prepared the inquest report, Ext. Ka.4 and other connected documents, Ext.Ka.21 to Ka.24. This was the dead body of an adult male. He took sample of the blood-stained and plain earth from the spot vide memo, Ext. Ka.2 and also attached. the clothes and other belongings of the deceased vide memo, Ext.Ka.3. The dead body was then dispatched for post mortem which was conducted by Dr. R.C. Gupta at 10.30 A.M. on 14-9-1982. The defence admitted the genuineness of post mortem report, Ext. Ka.17 and according to the same, the following ante-mortem injuries were detected on the person of the deceased. 1. Incised wound 1" x ½ " through and through on back of right hand. 2. Incised wound 1" x ½ " x muscle deep, 3 cm above injury No.1. 3. Incised wound 4" x ½ " x bone deep on back space of left thumb and index finger. 4. Incised wound ½ " x ¼ " on back of left thumb middle area cutting the bone of middle fillings. 5. Incised wounds five in number ½ " x 1" X ½ " on left side of neck, muscle deep cutting major arteries. 6. 4. Incised wound ½ " x ¼ " on back of left thumb middle area cutting the bone of middle fillings. 5. Incised wounds five in number ½ " x 1" X ½ " on left side of neck, muscle deep cutting major arteries. 6. Incised wound 1" x ¾ ", 10 cm above and left to the left nipple muscle deep. 7. Incised wound ½ " x ½ " trachea deep, part of neck cutting trachea partially. 8. Incised wound 1" x 1 ½ ", 3cm below and left to injury No.7. On internal examination heart chambers were empty and spinal cord was exposed. The death was caused due to shock and haemorrhage as a result of ante-mortem injuries about one day ago. 4. Towards the further progress of the investigation the Investigating Officer prepared site plan, Ext.Ka.25 of the spot where the dead body was found. The shirt on the dead body had a label of Standard Tailor, Pharah District Mathura. S.I. Sri C.L. Verma was sent to Mathura and the photograph of the dead body was published in local Newspaper and was affixed at public places within the Police Circle of Pharah. On 4-2-1982 witness Ram Gopal Sharma (P.W.7) came to Bazpur and met the I.O. telling him that the photo published was of his real brother Rameshwar Prashad deceased. He also identified the articles viz. shirt, pant, a pair of sandals, a ring and a talisman (material exhibits 3, 4, 5, 8 and 9 respectively) as belonging to his said brother and which were attached from the dead body by the I.O. vide memo, Ext. Ka.3. The memo, Ext.Ka.26 in acknowledgement of the identification by this witness of the properties of the deceased was prepared the same day, that is, 4-10-1982. The brother of the deceased gave two inland letters dated 10-7-1982 and 22-8-1982 (material exhibits 25 and 26) to the Investigating Officer which were posted by Rameshwar Prasad deceased from Rudrapur showing his address "C/o Dev Dutt alias Ram Dutt Chaudhary, Kumar Service Station, Rudrapur, Nainital" in letter material. Ext. 26 and his address "C/o Mahavir Singh Chaudhary, Krishi Utpadan Mandi Samiti, Rudrapur, District Nainital" in letter material Ext. 25. These addresses gave the Investigating Officer a lead to probe the crime further and in the process searched both these Mahavir Singh and Dev Dutt in Indira Colony in the town of Rudrapur. Ext. 26 and his address "C/o Mahavir Singh Chaudhary, Krishi Utpadan Mandi Samiti, Rudrapur, District Nainital" in letter material Ext. 25. These addresses gave the Investigating Officer a lead to probe the crime further and in the process searched both these Mahavir Singh and Dev Dutt in Indira Colony in the town of Rudrapur. They both were present at their house. Mahavir Singh is the brother-in-law of Dev Dutt. 5. Mahavir Singh on being Inquired by the I.O. gave the clothes of deceased Rameshwar Prasad which were identified by Ram Gopal (P.W.7) and memo Ext. Ka.5 was then prepared. Mahavir Singh also produced wrist watch, and one spectacle and these were also taken possession thereof by the I.O. vide memo, Ext. Ka.6. Accused Dev Dutt produced a blood-stained Paijama (material Ext.15) vide memo, Ext.Ka.7 and on search four inland letters material Exts.16 to 19 were attached from the suitcase of accused Dev Dutt vide memo Ext.Ka.8. Two Xerox copies of the driving licence, material Exts.22 and 21 were also seized from him vide memo, Ext.Ka.9. On the disclosure of accused Dev Dutt a knife (material Ext.24) said to be the weapon of assault, was recovered from the ditch near the spot where the dead body was found and memo of recovery Ext.Ka.13 was then prepared. The recovery was made in the presence of witnesses Hari Om Sharma (P. W.8) and Vijay Kumar. The Investigating Officer also prepared site plan Ext. Ka. 29 of the place of recovery. 5. In view of the above leads the Investigating Officer was able to obtain police custody remand of Mahavir Singh and Dev Dutt by the order of the Judicial Magistrate. On 7-10-1982 a silver Tagadi referable in paper slip, material Ext.7 recovered from the dead body of the deceased was attached from the possession of Sardar Jogendra Singh (P.W.6) with whom this ornament was mortgaged by the deceased. On the pointing of accused Dev Dutt vehicle jeep No. 5858 USI was attached from the Kumar Service Station, Rudrapur owned by Radhey Shyam Kumar (P.W.5) vide memo, Ext.Ka.10. The Investigating Officer took the paint of the body of the jeep said to be stained with blood and sent it to the Government Lab for forensic examination. Removed paint of the body of the jeep was seized vide memo Ext. Ka.31. The Investigating Officer took the paint of the body of the jeep said to be stained with blood and sent it to the Government Lab for forensic examination. Removed paint of the body of the jeep was seized vide memo Ext. Ka.31. The letters attached from the suitcase of the accused Dev butt were sent from Mathura by his brother-in-Iaws Hukam Singh (P.W.9) who proved letter Ext.Ka.14 and by Klshan Singh (P.W.10) who proved the letters Exts. Ka.15 and Ka.16 sent to the accused. From the letters it was disclosed that Ms. Danu sister of the accused had eloped with Rameshwar Prasad deceased and they came to District Nainital. In view of this lead the Investigating Officer visited Aggarwal Sabha Dharamshala at Rudrapur and from its Manager Subhash Chandra Sharma (P.W.11) sought help and examined the register of the guests who stayed there in the month of September, 1982. An entry dated 6-9-1982 at serial No.3 in the register was said to pertain to stay of Rameshwar Prasad deceased with a lady. The photo state copy of the register, Ext.Ka18 was procured by the Investigating Officer and statement of the said was also recorded. This evidence was not believed by the learned Sessions Judge. The bloodstained clothes etc. and the bloodstained earth seized from the spot where the dead body was lying, removed paint from the dead body and the knife were sent for chemical examination at Government Lab, Agra and the analysis report was then received. On completion of the Investigation the Investigating Officer submitted charge sheet, Ext. Ka.32 against the accused Dev Dutt and his brother-In-law Mahavir Singh on 12-1-1983. 6. Accused Dev Dutt and Mahavir Singh were committed to the court of Sessions on 28-2-1984 by the then Judicial Magistrate, Kashipur. There being no direct evidence in the case the same rests on circumstantial evidence and to prove the incriminating circumstances the prosecution examined 13 witnesses including those named above. The two, P.W.2 Yad Ram Sagar and P.W.3 Ram Charan, not mentioned earlier, turned hostile as they did not support the prosecution allegation that deceased was last seen in the company of Mahavir Singh and accused Dev Dutt. No evidence was adduced in defence. Accused denied the allegations of the prosecution and claimed trial. The two, P.W.2 Yad Ram Sagar and P.W.3 Ram Charan, not mentioned earlier, turned hostile as they did not support the prosecution allegation that deceased was last seen in the company of Mahavir Singh and accused Dev Dutt. No evidence was adduced in defence. Accused denied the allegations of the prosecution and claimed trial. Learned Sessions Judge on consideration of the evidence on record was of the view that no incriminating circumstance was satisfactorily established against Mahavir Singh who was therefore held entitled to benefit of doubt and was acquitted by the judgement under appeal. The learned Sessions Judge however found that the incriminating circumstances pressed in to service by the prosecution against Dev Dutt were established beyond doubt and those circumstances having completed a complete chain pointing to the guilt of the accused Dev Dutt only. He was, therefore, held guilty, convicted and sentenced as aforesaid. The circumstances pressed in to service and on which the learned Sessions Judge placed reliance thereon were as under : 1- Rameshwar Prasad deceased and accused Dev Dutt were last seen together in the evening of the day of the murder of the deceased and they together went in jeep No. USI 5858 on that day, that is, 12-9-1982 from the workshop of witness Radhey Shyam Kumar (P.W.5). 2- Knife, material Ext.24 was recovered, from a ditch near the spot of the recovery of the dead body of Rameshwar Prasad, at the Instance of the accused Dev Dutt. 3. Disintegrated blood-stains were detected by the Chemical Examiner on the recovered knife and blood on the paint of the jeep No. U.S.I. 5858. 4. Accused had motive to commit the murder of Rameshwar Prasad on account of the deceased maintaining illicit relations with his sister Ms. Danu. 7. Learned counsel appearing on behalf of the appellant persuasively argued that none of the circumstances were established by cogent and reliable evidence and that the witnesses examined by the prosecution to prove the alleged incriminating circumstances were all got up witnesses and no reliance on their evidence could have legally been placed. Danu. 7. Learned counsel appearing on behalf of the appellant persuasively argued that none of the circumstances were established by cogent and reliable evidence and that the witnesses examined by the prosecution to prove the alleged incriminating circumstances were all got up witnesses and no reliance on their evidence could have legally been placed. On the other hand learned A.G.A. supported the inferences drawn by the learned Sessions Judge and submitted that the evidence of last seen together proved by the evidence of P. W.5, Radhey Shyam Kumar, coupled with the recovery of weapon of assault on the disclosure statement of the accused and also his having motive to commit the murder, were such strong incriminating. circumstances which completed a chain, unerringly pointing to the guilt of the accused. 8. In the above backdrop the evidence of the prosecution in regard to the circumstances pressed in to service required to be analyzed to see as to whether these were satisfactorily established to complete a chain of events from which the only Irresistible conclusion, about the guilt of the accused, could have safely been drawn and no other hypothesis against the guilt was possible. 9. As regards the first circumstance that Rameshwar Prasad deceased was lastly seen alive in the company of the accused in the evening of 12-91982, we have the evidence of Radhey Shyam Kumar (P.W.5), and on which implicit reliance was placed by the learned Sessions Judge. The prosecution has initially set up a circumstance of last seen alive of Rameshwar Prasad in the company of accused Dev Dutt and his brother-in-law Mahavir Singh right from the Kumar Service Station of P.W.5 and all these three going from there in jeep No. U.S.I. 5858 at about 5 to 5.15 P.M. on 12-9-1982 and where after Rameshwar Prasad was probably murdered some time in the night. The two other witnesses of the last seen examined were Yad Ram Sagar P.W.2 and Ram Charan P.W.3. They were declared hostile as they have not supported the prosecution allegation in that regard. The two other witnesses of the last seen examined were Yad Ram Sagar P.W.2 and Ram Charan P.W.3. They were declared hostile as they have not supported the prosecution allegation in that regard. There remain the testimony of Radhey Shyam Kumar (P.W.5) only in regard to this circumstance and referring to his evidence learned counsel for the accused pointed out that the evidence of this witness was not accepted by the learned Sessions Judge in regard to the co-accused Mahavir Singh and as such the learned Sessions Judge was not justified In placing reliance on the same evidence in regard to Dev Dutt merely by saying that Mahavir Singh was not very well known to the witness who could not have correctly fixed his identity when this co-accused also came to his workshop on 12-9-1982 along with accused Dev Dutt and Rameshwar Prasad deceased. According to the learned counsel the reasoning was not at all justified because both the accused Dev Dutt and Mahavir Singh were closely related and were residing in the same house as stated to by the Investigating Officer S.I. Ranbir Singh (P. W.3). There can be no doubt that the stand of the learned Sessions Judge has not been consistent in making appreciation of the evidence of witness Radhey Shyam Kumar because according to the evidence of the witness himself Mahavir Singh had introduced accused Dev Dutt to him for giving employment to the latter in the workshop and also because the witness claimed, even in his examination-in-chief, that Mahavir Singh was also there at the jeep on 12-9-1982 when the vehicle was taken by accused Dev Dutt and he along with Mahavir Singh and Rameshwar Prasad deceased went away from the workshop towards Rampur Road. In fact different standards of appreciation of the evidence of the witness were adopted by the learned Sessions Judge although the witness claimed to know both the accused Dev Dutt and Mahavir Singh from before the crucial date, that Is, 12-9-1982. 10. Even otherwise the evidence of the witness was not at all convincing and trustworthy. The witness was sitting inside his workshop whereas according to him accused Dev Dutt alone came to him to borrow jeep for a day. 10. Even otherwise the evidence of the witness was not at all convincing and trustworthy. The witness was sitting inside his workshop whereas according to him accused Dev Dutt alone came to him to borrow jeep for a day. The jeep was being parked at a distance of 200 feet on the road and even if it is argued that Dev Dutt came to him to take the vehicle for a day, the witness was not supposed to see that Rameshwar Prasad deceased was standing with Mahavir Singh near jeep on the road. The witness neither maintained any register of his employees nor any log book of his vehicle and on this account also It was highly doubtful that Dev Dutt was his driver and came to borrow the vehicle from him on 12-9-1982 and that the same was given to the accused who took away the vehicle along with Rameshwar Prasad deceased and Mahavir Singh. There is no corroboration evidence to show that dev Dutt was in fact his employee and he could have permitted Dev Dutt to take away his jeep on that day and to be returned next day without showing the purpose for which the vehicle was being borrowed by the accused. In these circumstances we are convinced that learned Sessions Judge fell in error in placing implicit reliance on the uncorroborated and discrepant evidence of Radhey Shyam Kumar to ,draw an inference that incriminating circumstance of last seen together stand satisfactorily established. 11. To establish the second circumstance about the recovery of knife, reliance was placed on the evidence of the Investigating Officer, S.I. Ranbir Singh (P.W.3) and public witness Hari Om Sharma (P.W.8). Learned counsel for the accused referred to the evidence of public witness and submitted that the witness was a pocket witness of the police as was the case with other public witness Vijay Kumar named in the recovery memo of knife, Ext. Ka.13 and that the evidence in regard to the recovery was being fabricated, the got up witnesses were shown to be the witness of the occurrence while in fact no such recovery was effected on the disclosure statement of the accused Dev Dutt. P.W.5 admitted that he had appeared as witness in one or two police cases of P.S. Bazpur but denied the suggestion that he had been the witness in about 20-25 cases of the said police station. P.W.5 admitted that he had appeared as witness in one or two police cases of P.S. Bazpur but denied the suggestion that he had been the witness in about 20-25 cases of the said police station. He also stated that other witness Vijay Kumar of the recovery was also the witness with him in a case of the police station relating to an offence punishable under Section 376 I.P.C. This aspect was not considered by the learned Sessions Judge. Even if it this could not be ground to raise any doubt in the credibility of the evidence of the witness it is also of significance that the evidence of the witness was otherwise shaky and discrepant not worth placing reliance there upon. The reason being that on being confronted with his statement recorded under Section 161 of the Code of Criminal Procedure it was proved that the Investigating Officer told him that accused Dev Dutt has admitted his guilt and has volunteered to have the weapon of assault, the knife recovered from the place where it had been concealed and that his contrary claim in, court that such a statement was given by the accused in his ,presence was incorrect. This aspect of the matter also lend credence to by the recovery memo, Ext. Ka .13, in which there is no mention at all that any statement was given by the accused in presence of the public witnesses and that the accused told in the presence of the witnesses that he had concealed the weapon i.e. knife and shall have it recovered from that place. Had any statement been given by the accused before the witness the same would have find place not only in the recovery memo but also in the statement under Section 161 of the Code of Criminal Procedure and since it was not so the claim made by the witness in the court could not have therefore been safely acted upon to establish that the accused was the author of the concealment of the weapon of assault, that is, the knife and have the same recovered on his pointing in the presence of this witness. 12. 12. The evidence of Investigating Officer S.I. Ranbir Singh also failed to establish that the accused Dev Dutt gave him statement or told him that he had concealed the weapon of assault, the knife and got the same recovered from where it had been concealed by him. The relevant statement of the witness (available at page-10 of his statement) has no mention as to what was said by the accused which was required to be proved and established by the evidence in view of the requirement of Section-27 of the Evidence Act. It shall be advantageous to refer here the most quoted authority on the law under Section 27 of the Evidence Act and the decision of the Privy Council In Pulukuri Kottaya versus Emperor; A.I.R. 1947 Privy Council - 67 provide the interpretation "that 'fact discovered' envisaged In the section embraces the place from which the object was produced, the knowledge of the accused as to It and the Information given must relate distinctly to the effect." The evidence of Investigating Officer as stated above failed to establish that the accused Dev Dutt came forward and gave the statement that he was the author of the concealment of the knife and was ready to have the same recovered. Mere statement of the Investigating Officer that accused produced a knife from the ditch near the place from where the dead body was found lying would not amount to 'fact discovered' within the meaning of Section 27 of the Evidence Act and therefore no reliance on the evidence of the prosecution could have legally been placed to prove that the knife was recovered at the Instance of the accused. 13. This aspect of the matter may also be considered by another angle. The murder was probably committed in the night between 12/13-9-1982 and the recovery was allegedly made on 6-10-1982 from a ditch in which there was water. A ditch was not such a place where the knife could have been safely concealed to facilitate its recovery later on by the accused. We are not inclined to believe the evidence of the prosecution that after such a long period a knife could have been recovered from a ditch filled with water and in our view the evidence in regard to the recovery was also liable to be rejected on account of delay. We are not inclined to believe the evidence of the prosecution that after such a long period a knife could have been recovered from a ditch filled with water and in our view the evidence in regard to the recovery was also liable to be rejected on account of delay. Even otherwise the ditch on that place was accessible to every one and any recovery of the knife from such a place was also highly doubtful and suspicious and the learned Sessions Judge in our view made an error in accepting the evidence of the prosecution in that regard. In other words the second circumstance was also not satisfactorily established by the evidence of the prosecution. 14. Coming to the third circumstance referred above, attention was drawn to Chemical Examiner's Report, Ext.Ka.36, wherein the human blood on the paint taken from the vehicle item No.3 of the report and on a bundle of 'Bidis' mentioned at item No.13 was confirmed to be of same A B group and blood on knife mentioned at item No.16 was found to be disintegrated. The recovery of knife has not been found to be established by reliable evidence, therefore, the' Chemical Examiner's Report was of no help to the cause of the prosecution. Even otherwise it was strange that a knife lying in a ditch of water for a long period would still have disintegrated blood-stains and this aspect of the matter itself speak loudly against the veracity of the prosecution evidence and its version. In our view this could not have been taken to be any Incriminating circumstance whatsoever against the accused. 15. According to the Investigating Officer S.I. Ranbir Singh (P.W.13) the blood stained paint of the jeep U.S.I. 5858 was scrapped and in a sealed packet sent for chemical examination to Government Lab, Agra. It was scrapped and seized on 12-11-1982 vide Memo, Ext.Ka.31. We are not inclined to believe at all that any blood-stains would have been available on the paint of the jeep after about two months of the date of the alleged incident. According to P. W.5 the jeep was returned next day, that is, on 13-9-1982 and since then the vehicle was being regularly used by the witness. We are not inclined to believe at all that any blood-stains would have been available on the paint of the jeep after about two months of the date of the alleged incident. According to P. W.5 the jeep was returned next day, that is, on 13-9-1982 and since then the vehicle was being regularly used by the witness. He also gave out that the servicing of the vehicle was also done by use of water pressure pipe and by no reasoning it could be believed that the blood-stains would have remained there despite washing of the vehicle and also despite the lapse of the long period of two months and therefore in our view the learned Sessions Judge was not justified in placing any reliance on the claim that the paint of the jeep had blood-stains and it was an incriminating circumstance against the accused. Even otherwise the blood group of the deceased was not affirmed or show to be placed on record by any evidence and therefore the report of the Chemical Examiner was not carrying any evidentiary value to prove any incriminating circumstance against the accused. Moreover the bundle of 'Bidis' mentioned at item serial No. 13 in the report was not sealed at the time of the attachment and it was always available for tampering therewith to fabricate any sort of evidence of this nature., Considering the peculiar facts and circumstances of the case we subscribe to the view of the learned counsel for the accused that the learned Sessions Judge also' made an error in accepting the above circumstance as established by the evidence and the same as a link in the circumstances against the accused. 16. So far as the motive -aspect was concerned the Investigating Officer admittedly has not recorded the statement of Ms. Danu the sister of the accused and merely on the basis of the letters sent by Hukum Singh (P. W. 9) and Kishan Singh (P. W.10) It could (not) have been accepted that Rameshwar Prasad deceased was having illicit relations with Ms. Danu the sister of the accused Dev Dutt. It was of significance that there was no substantive evidence in that regard because P. W. 9 said nothing about any relationship between Rameshwar Prasad deceased and Ms. Danu and P. W.10 categorically stated that Ranieshwar Prasad deceased was. Danu the sister of the accused Dev Dutt. It was of significance that there was no substantive evidence in that regard because P. W. 9 said nothing about any relationship between Rameshwar Prasad deceased and Ms. Danu and P. W.10 categorically stated that Ranieshwar Prasad deceased was. not known to him and further that he had sent letter about elopement of Ms. Danu on the information given to him by his father-in-law. The witness had no personal knowledge about any relationship between these two and about the elopement of Ms. Danu with Rameshwar Prasad deceased. Therefore in the absence of any cogent and reliable admissible evidence learned Sessions Judge was not justified to draw an inference that accused Dev Dutt was entertaining enmity against Rameshwar Prasad and has thus motive to commit the murder. In other words this incriminating circumstance was also not satisfactorily established in the case. 17. Upon consideration of the evidence on record and the circumstances of the case we are convinced that any of the incriminating circumstances pressed in to service on behalf of the prosecution was not clearly established by reliable and clinching evidence and therefore there was no question of a chain of events being completed to come to the conclusion that the accused and none other was the author of the murderous assault on Rameshwar Prasad. Therefore, the accused could not have been held guilty and convicted of the offences with which he was charged. In the result this appeal succeed and is to be allowed. 18. The appeal is allowed. The impugned judgement dated 18-4-1985 convicting and sentencing the accused is set aside and the accused Dev Dutt is held not guilty and is acquitted of the charges under Section 302/34 and 201 I.P.C. He is on bail. He need not surrender. His bail bonds are cancelled and sureties discharged. 19. Let the record be sent back to the court concerned.