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Uttarakhand High Court · body

2010 DIGILAW 787 (UTT)

SUSHIL SHARMA v. STATE OF UTTARAKHAND

2010-10-29

PRAFULLA C.PANT

body2010
JUDGMENT Hon’ble Prafulla C. Pant, J. : This appeal, preferred under section 374 of Code of Criminal Procedure, 1973 (for short Cr.P.C.), is directed against the judgment and order dated 29.08.2007, passed by Additional Sessions Judge, Kashipur, in Sessions Trial No. 307 of 2004, whereby accused/appellant Sushil Sharma has been convicted under section 302 of Indian Penal code, 1860 (for short IPC), and under section 25 Arms Act, 1959. The convict has been sentenced to imprisonment for life and also directed to pay fine of Rs. 5,000/- under section 302 I.P.C. He is further sentenced to rigorous imprisonment for a period of three years and is directed to pay fine of Rs. 2,000/- under section 25 Arms Act, 1959. 2. Heard learned counsel for the parties and perused lower court record. 3. Prosecution story, in brief, is that PW7 Rakesh Kumar, complainant, lodged first information report (Ex. A1) at Police station Kashipur on 13.05.2004, at 5:30 a.m., stating that his brother Deepak Agarwal (deceased) used to run a flour mill near Azar Mandi in Kashipur. Everyday he used to come back home by 9.00 P.M. On 29.05.2004, he did not return home, on which complainant Rakesh Kumar, and other family members started searching him. At about 4.30 a.m. (on 30.05.2004) they saw the dead body of Deepak Agarwal lying with the scooter belonging to him near Nijra Jungle. There was mark of injury on his head. On the basis of said report the police registered a crime no. 376 of 2004, against unknown persons relating to offence punishable under section 302 I.P.C., and check report (Ex. A7) was prepared. Investigation was taken up by P.W.11 Sub Inspector D.S. Rawal. He got prepared inquest report (Ex. A9) on 30.05.2004, at 6:00 a.m., after taking the dead body of Deepak Agarwal in his possession. The dead body was sealed, and sample seal (Ex. A11), police form no. 13 (Ex. A12), sketch of the dead body (Ex. A13), and letter to medical officer (Ex. A10) requesting for post-mortem examination, were prepared. The dead body was sent for postmortem examination in a sealed condition. P.W.8 Dr. B.C. Joshi, conducted post-mortem examination on the very day (30.05.2004) at 9:00 a.m., and prepared autopsy report (ex. A5). A11), police form no. 13 (Ex. A12), sketch of the dead body (Ex. A13), and letter to medical officer (Ex. A10) requesting for post-mortem examination, were prepared. The dead body was sent for postmortem examination in a sealed condition. P.W.8 Dr. B.C. Joshi, conducted post-mortem examination on the very day (30.05.2004) at 9:00 a.m., and prepared autopsy report (ex. A5). The Medical Officer recorded the fire arm injury on the head of the deceased and opined that deceased had died due to coma as a result of ante-mortem fire arm injury. During investigation, on interrogating the witnesses it came out that deceased Deepak Agarwal was last seen with accused Sushil Sharma. Thereafter, Sushil Sharma was arrested. On his pointing out, a country made pistol was recovered on 02.06.2004, allegedly used in the crime. On completion of investigation, the Investigating Officer submitted charge sheet (Ex. A18) against the accused Sushil Sharma for his trial in respect of charge of offence punishable under section 302 I.P.C., and relating to offence punishable under section 25 Arms Act, 1959. 4. On receipt of the charge sheet, the Judicial Magistrate, Kashipur, after giving necessary copies to the accused as required under section 206 of Cr.P.C., appears to have committed the case to the court of sessions for trial. On 16.03.2005, trial court after hearing the parties, framed charge of offence punishable under section 302 I.P.C., and one relating to offence punishable under section 25 Arms Act, 1959, to which the accused pleaded not guilty and claimed to be tried. On this prosecution got examined P.W.1 Durga Prasad (declared hostile), P.W.2 Haydesh Kumar (declared hostile), P.W.3 Om Pal (declared hostile), P.W.4 Om Prakash (declared hostile), P.W.5 Wahid Husain, who is witness of ‘last seen’, P.W.6 Jayram Singh, who stated that accused made extra judicial confession before him, P.W.7 Rakesh Kumar (complainant), P.W.8 Dr. B.C. Joshi, who conducted post-mortem examination, P.W.9 Aale Hasan, who is witness of recovery of pistol, P.W.10 Constable Jagdish Prasad, and P.W.11 Sub Inspector D.S. Rawal, Investigating Officer. The oral and documentary evidence was put to the accused under section 313 Cr.P.C., in reply to which he alleged same to be false. After hearing the parties, the trial court found accused Sushil Sharma guilty of charge of offence punishable under section 302 I.P.C., and 25 Arms Act, 1959. The oral and documentary evidence was put to the accused under section 313 Cr.P.C., in reply to which he alleged same to be false. After hearing the parties, the trial court found accused Sushil Sharma guilty of charge of offence punishable under section 302 I.P.C., and 25 Arms Act, 1959. After hearing on sentence, the trial court sentenced the convict imprisonment for life and directed to pay fine of Rs. 5,000/- under section 302 I.P.C. He was further sentenced to rigorous imprisonment for a period of three years and directed to pay fine of Rs. 2,000/- under section 25 Arms Act, 1959. Aggrieved by said judgment and order dated 29.08.2007, passed by Additional Sessions Judge, Kashipur, in Sessions Trial No. 307 of 2004, this appeal is preferred by the convict. 5. Before further discussion, we think it just and proper to mention ante-mortem injuries recorded by the medical officer :- (i) Fire arm injury 3 x 2 cm on fronto occipital region on right side with irregular inverted margins cavity deep with fracture at upper part of skull. Brain matter seen on deep probing of the wound. The medical officer Dr. B.C. Joshi (P.W.8) opined that deceased (Deepak Agarwal) had died due to coma as a result of ante-mortem fire arm injury. From the evidence of P.W.8 Dr. B.C. Joshi read with autopsy report (Ex. A5) it is established on the record that Deepak Agarwal died a homicidal death. Now this Court has to see whether the prosecution has successfully proved that accused Sushil Sharma committed murder of the Deepak Agarwal or not, and whether unlicensed country made pistol was recovered, on pointing out of the accused or not. 6. P.W.1 Durga Prasad has stated that he did not see the incident. He has further stated that he did not know the parties. P.W.2 Haydesh Kumar has also given similar statement that he did not see the incident nor he saw the deceased going with the accused. P.W.3 Om Pal also did not support the prosecution story, and stated that he did not see accused going with the deceased. P.W.4 Om Prakash stated that he did not see Sushil Sharma firing shot at Deepak Agarwal nor he gave any such statement to anyone that he saw it. All these four witnesses were got declared hostile by the prosecution as they did not support the prosecution case. 7. P.W.4 Om Prakash stated that he did not see Sushil Sharma firing shot at Deepak Agarwal nor he gave any such statement to anyone that he saw it. All these four witnesses were got declared hostile by the prosecution as they did not support the prosecution case. 7. P.W.5 Wahid Husain has stated that he saw accused Sushil Sharma going with Deepak Agarwal together but they were on different scooters. In the cross-examination this witness states that he not only worked for Sushil Sharma but also worked for deceased Deepak Agarwal. At the end of his examination he states that he had come to make the statement in the court with the complainant. The evidence adduced by P.W.5 Wahid Hussain is not corroborated by any of the other witnesses of this fact. 8. P.W.6 Jayram Singh is witness of extra Judicial confession said to have been allegedly made by accused Sushil Sharma to him after the incident. But on going through the testimony of this witness the same does not inspire confidence. In cross-examination he admits that he is resident of Faudpur some 32 km. away from Kashipur. He says that he had never been to the place of Sushil Sharma. He further admits that he is neither Village Pradhan, nor any ward member nor had he any acquaintance with the police nor is he a social worker. It is strange that the accused Sushil Sharma preferred to make extra judicial confession to this person. The statement of this fact made by the witness in our opinion does not appear to be true statement of fact. 9. P.W.7 Rakesh Kumar is complainant but he is not an eye witness. He has proved the FIR (Ex. A1) lodged by him. On the point of motive this witness has stated that Deepak Agarwal (deceased) and accused Sushil Sharma were friends. He further states that he is not aware of the fact that there was any account running between the two relating to business. The prosecution got the complainant (P.W.7) declared hostile as he did not fully support the prosecution case. 10. P.W.9 Aale hasan is the witness of recovery of pistol said to have been made on pointing by the accused Sushil Sharma. This witness (P.W.9) has not fully supported the prosecution case and he was also declared hostile by the prosecution. The prosecution got the complainant (P.W.7) declared hostile as he did not fully support the prosecution case. 10. P.W.9 Aale hasan is the witness of recovery of pistol said to have been made on pointing by the accused Sushil Sharma. This witness (P.W.9) has not fully supported the prosecution case and he was also declared hostile by the prosecution. Otherwise, also, he appears to be a chance witness who is resident of Lambakhera in Rudraprayag and recovery is said to have been made in Kashipur. 11. In the above circumstances, the evidence adduced against accused Sushil Sharma is not convincing one nor can it be said that chain of circumstances is complete as against accused to hold him guilty. Therefore, in our opinion the trial court had erred in law inholding accused Sushil Sharma guilty of charge of offence punishable under section 302 I.P.C. 12. For the reasons as discussed above, this appeal is allowed. Impugned judgment and order dated 29.08.2007, passed by additional sessions Judge, Kashipur, in Sessions Trial No. 307 of 2004 is set aside. The conviction and sentence recorded against the appellant also stands set-aside. Appellant Sushil Sharma is acquitted of the charge of offence punishable under section 302 I.P.C., and one punishable under section 25 Arms Act, 1959. He is in jail. He shall be set at liberty forth with if not wanted in connection with any other crime. Let the copy of this judgment be sent to the Superintendent of the jail concerned. Also the lower court record be sent back with the copy of this judgment.