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2012 DIGILAW 371 (UTT)

STATE OF UTTARANCHAL v. SUNDER LAL

2012-07-10

SERVESH KUMAR GUPTA, SUDHANSHU DHULIA

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JUDGMENT Per: Hon’ble Sudhanshu Dhulia, J. (Oral) This government appeal arises out of the judgment and order dated 5.4.2003 passed by the learned Sessions Judge, Tehri Garhwal in S.T. No.33/1998, ‘State Vs. Sunder Lal’ whereby the accused Sunder Lal has been acquitted of the charges levelled against him under Sections 302, 328 and 394 IPC. 2. Brief facts of the case are that an FIR was lodged on 24.12.1997 at about 12 noon at P.S. Muni-Ki-Reti, District Tehri Garhwal by one Sunil Singh, who is the brother of deceased Jaipal Singh. In the FIR, he states that on 23.12.1997 at about 8 AM, while his brother Jaipal Singh S/o Narain Singh, aged about 43 years, went from his village to collect ‘Bajri’. After collecting the same, he was climbing down to his village. On his way, accused Sunder Lal asked him i.e. the brother of the complainant to stop over and have a ‘Biri’. Soon thereafter, accused Sunder Lal brought his brother in an unconscious state at the complainant’s shop. When the complainant asked as to what had happened to his brother, he was informed by accused that Pradhan Ji (deceased) had consumed liquor and, therefore, is not in his senses but there was nothing to worry about and he would be alright after some time. The complaint then states in his F.I.R. that he took his brother to the local Primary Health Center, ‘Paoki Devi’, where he was admitted but subsequently, the doctor, who was examining Jaipal Singh (injured), referred him to the better hospital at Rishikesh. While he was being taken from ‘Paoki Devi’ for Rishikesh hospital, his brother passed away. The body was thereafter brought back to the village and on the next day, i.e. on 24.12.1997, an FIR could be lodged. In the FIR, the complainant expresses doubt about the manner in which his brother had died and, therefore, he requested the post-mortem to be conducted on the body of deceased. The post-mortem thereafter was conducted on the same day, i.e. on 24.12.1997 at 4:45 PM. There is no ante-mortem injury found on the body of deceased and his larynx and bronchi were congested, so were his right and left lungs, as well as his heart. The cause of death could not be ascertained, hence viscera was preserved and sent for examination. Meanwhile, the police did nothing on the report which was lodged on 24.12.1997. There is no ante-mortem injury found on the body of deceased and his larynx and bronchi were congested, so were his right and left lungs, as well as his heart. The cause of death could not be ascertained, hence viscera was preserved and sent for examination. Meanwhile, the police did nothing on the report which was lodged on 24.12.1997. Subsequently thereafter on 17.6.1998, the Viscera report came wherein it was revealed that the stomach, parts of intestine and liver, kidney and spleen of the deceased were found to contain a poison known as ‘aluminum phosphide, apart from ethyl alcohol’. Thereafter, on 23.7.1998, the accused was arrested. Consequent upon the report lodged by Sunil Singh (brother of deceased), the investigation was done by the police, upon completion of which, a chargesheet was filed against the accused under Sections 302/328/394 IPC. 3. The case was committed to the court of Sessions on 19.9.1998 by the order of Chief Judicial Magistrate, Tehri Garhwal. Soon thereafter on 29.9.1998, the charge was framed by the learned Sessions Judge, Tehri Garhwal against the accused Sunder Lal under Sections 302, 328 and 394 IPC. The same was denied by the accused who claimed trial. 4. The case of the prosecution is that the accused Sunder Lal had deliberately given poison to Jaipal Singh in the liquor which was served to him by the accused, as a result, he died a few hours later. The motive which has been presented by the prosecution is that deceased, on that fateful day, was carrying some money with him, as it has come in the evidence given by PW6 Sauna Devi (wife of deceased). 5. The prosecution, in order to support its case, has examined as many as ten witnesses. 6. The entire case of the prosecution is based on circumstantial evidence and an extra judicial confession. According to the prosecution, the deceased was given liquor by the accused on 23.12.1997 at about 8 AM when he was going to his village. It has also been shown that the intention was to rob the deceased with the money which he was carrying. Therefore, a case under Sections 328 and 394 IPC was also registered apart from Section 302 IPC. In order to establish these charges, an extra judicial confession, in the form of a statement given by the accused before the Panchayat of village ‘Nai’, has also been relied upon. Therefore, a case under Sections 328 and 394 IPC was also registered apart from Section 302 IPC. In order to establish these charges, an extra judicial confession, in the form of a statement given by the accused before the Panchayat of village ‘Nai’, has also been relied upon. The extra judicial confession (Ex.A-6) though bears the signature of certain villagers but not that of the accused Sunder Lal. It states that the accused Sunder Lal gave a statement in front of ‘Pradhan’ as well as the villagers on 24.12.1997, whereby he accepted the guilt and confessed that on 23.12.1997 at about 8:30 AM, when the ex-pradhan Jaipal Singh was going towards the village and as soon as he crossed his (Sunder Lal’s) house, he was carrying a sack on his shoulder. He was called inside the house by the accused. At that time, in the house, one Pooran Singh of the village was also present. The accused further confessed that he was having a quarter of English liquor with him which he gave to Jaipal and immediately after consuming the same, became unconscious and fell down. Thereafter the accused carried him on his shoulder to his shop and left him there. On being asked from where did the accused get the liquor, he informed the ‘Panchas’ that he had got this liquor in a marriage from one Vikram Singh, resident of Gram Sabha ‘Bhargid’. Soon thereafter, it was decided that the accused should be handed over to the police at ‘Muni-ki-Reti’ and the body of deceased should be sent for post-mortem so that they could ascertain the truth. 7. The prosecution so as to prove its case produced PW1 Dr. Nizar Ahmad, who was present at the Primary Health Center ‘Paoki Devi’. He states that the deceased was brought to the hospital at about 10 AM. On his examination, it transpired that he was totally unconscious and the reason which he could ascertain, without examining any detail, was that he had consumed too much liquor. The injured was kept in the primary health center for about 2 to 2:30 hours and thereafter, was referred to a better equipped hospital for better medical treatment. It has further come in the evidence that while the injured being taken to the hospital at Rishikesh, he passed away. 8. PW3 Dr. The injured was kept in the primary health center for about 2 to 2:30 hours and thereafter, was referred to a better equipped hospital for better medical treatment. It has further come in the evidence that while the injured being taken to the hospital at Rishikesh, he passed away. 8. PW3 Dr. S.K. Gupta, in his examination-in-chief, stated that on 24.12.1997, he was posted at District Suman Hospital, Narendra Nagar. What he has stated, is already there in the post-mortem report available on record, that the lungs, pericardium etc. in respect of deceased were found congested and there was also some semi-digested food in the stomach of deceased. The spleen of deceased too was found congested. After examination, he could not precisely ascertain the cause of death and, therefore, he sent the Viscera for further examination. It was also found that in the organs of deceased, such as liver, intestine etc. ‘aluminum phosphide and ethyle alcohol’ was found. 9. PW5 Pooran Singh states that on that fateful day at about 8-8:30 AM, he was at the shop of accused Sunder Lal, to whom he had given one axe to prepare. While he was in his shop, he saw Jaipal Singh going to the village, with a sack on his shoulder. He was asked to come inside the shop by the accused. Thereafter some talks between the deceased and accused Sunder Lal took place. He overheard accused Sunder Lal telling Jaipal Singh that he had something to discuss with him. While this witness (PW5) asked Jaipal Singh to accompany him back to the village, he (Jaipal) was stopped by the accused on the pretext that he had some important work to discuss with the accused. 10. PW6 Smt. Sauni Devi, the wife of deceased, states that she was accompanying her husband on that fateful day. She states clearly that on that day between 8 to 8:30 AM, when Jaipal Singh went to the shop of accused Sunder Lal, none else, except the accused, was present. Hence, the presence of PW5 Pooran Singh is not corroborated by PW6. Moreover, it has also come in the cross-examination of PW5 that he never saw the deceased having liquor in the shop of accused. 11. Hence, the presence of PW5 Pooran Singh is not corroborated by PW6. Moreover, it has also come in the cross-examination of PW5 that he never saw the deceased having liquor in the shop of accused. 11. The rest of the witnesses, who have been examined by the prosecution, do throw light on the character and the dietary habits of the deceased but nothing material has come out from their testimony which may prove the guilt of the accused. The entire case of the prosecution primarily rests on the extra judicial confession given before the village Panchayat ‘Nai’ and other circumstantial evidence. The confession cannot be read into evidence simply for the reason that firstly, it does not corroborate with other evidence produced before the trial court. Secondly, this extra judicial confession also does not bear the signature of the accused. Therefore, the same has rightly not been believed by the trial court. The rest of the evidence, presented before the trial court, are also not of such value as may stick any of the charges on the accused. In the case of circumstantial evidence, the evidence should not only be of high evidentiary value but the conclusion, after examination, should be such that it should reach one and only one conclusion which is the guilt of the accused. In the present case, no such evidence could be produced by the prosecution. The trial court was thus, rightly of the view that no conviction, on the basis of the such evidence, could be made and in view of this Court also, the conclusion arrived at by the trial court is just and proper and calls for no interference from this Court. 12. The appeal preferred by the State is devoid of any merits and liable to be dismissed, and is accordingly dismissed. Let the lower court record be sent back.