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2012 DIGILAW 478 (UTT)

SOBAN SINGH v. STATE OF UTTARAKHAND

2012-08-14

BARIN GHOSH, U.C.DHYANI

body2012
JUDGMENT Barin Ghosh, C.J. (Oral) In the instant case, a double murder took place at Khalyun Danda. According to the Post Mortem Report, death in both the cases is due to ante mortem injuries inflicted by sharp edged weapons. Investigation was taken up on hand on the basis of First Information Report lodged by Gabbar Singh (PW1). The allegations, contained in the First Information Report, were those as were made to PW1 by Vinod Singh (PW2). 2. It was alleged in the First Information Report that three of the appellants, namely, Ram Singh alias Dabbu, Soban Singh and Ran Veer Singh knocked at the closed door of the shop of PW2 in the night to enquire about PW1. PW2 recognized the voice of those three appellants and also saw them through the gap of the door of his shop. It was stated that on the next day in the morning, PW2 had a number of customers to be attended to. It was stated that PW2 attended to those customers, then went to the house of PW1 and found that the door of the house is open and the dead bodies of the victims, namely, of two sons of PW1 were lying. 3. In course of investigation, all the appellants were arrested. They were charged of murdering the victims in course of committing dacoity. It was alleged that the object of murdering the victims was to accomplish dacoity at the house of PW1, when a sum of ‘1 lac was looted along with many other items. When appellant Kuldeep was arrested, allegedly ‘15,000/- were seized from him along with a watch and a shirt. PW1 allegedly recognized the watch and the shirt as belonging to one of the victims. The seizure memo did not indicate that the currency notes, thus seized, were marked or contained any signature. At the time, when appellant Mohit was arrested, a sum of ‘17,307/- was recovered from him along with, again, a wrist-watch and a shirt. PW1 held out that the shirt and the wrist-watch belonged to the other victim. The seizure list in this case also did not indicate that the currency notes contained any signature or mark. At the time of arresting appellant Ram Pal, a knife was recovered. The knife was sent for examination by FSL, Agra. PW1 held out that the shirt and the wrist-watch belonged to the other victim. The seizure list in this case also did not indicate that the currency notes contained any signature or mark. At the time of arresting appellant Ram Pal, a knife was recovered. The knife was sent for examination by FSL, Agra. The report of FSL, Agra did not reveal the group of human blood said to have been found on the said knife. In course of investigation, appellants supposed to have disclosed the place, where the appellants had allegedly burnt their clothes. After completion of the investigation, thus made, a charge sheet was filed and, on the basis thereof, charges were framed. In the charge, it was alleged that each of the appellants is guilty of commission of offences punishable under Sections 396 and 412 of the Indian Penal Code. 4. In order to prove the charge, prosecution relied upon the evidence of PW1 and PW2. PW1 accepted that he had no personal knowledge of the matter, except recognising the things mentioned above. PW2 stated what had been recorded by PW1 in the First Information Report. In addition to that, PW2 held out that he came to learn that the appellants came to commit the dacoity in a Tata Sumo vehicle bearing registration number as was given by him in course of his deposition. How he came to know that the assailants came by that vehicle and when he came to know about the same were, however, not stated by him. The evidence, thus tendered by PW1 and PW2, was, therefore, deficient to put home the charge of dacoity. Recovery of watches and shirts and alleged identification thereof by PW1 that the same belonged to his deceased sons could not, under any circumstances, put home the charge of dacoity, inasmuch as, PW1 did not make any effort to establish before the court below that, in fact, the deceased sons of PW1 were owners of those watches and the shirts. In order to fill up the deficiency, prosecution, therefore, called Harjinder Singh (PW5). PW5 was allegedly the driver of the said vehicle. The appellants or some of them, allegedly hired the said vehicle and they travelled in the said vehicle to the place of occurrence. While the appellants were passengers of the said vehicle, PW5 held out that he called his brother-in-law Mukesh (PW6) as his companion. PW5 was allegedly the driver of the said vehicle. The appellants or some of them, allegedly hired the said vehicle and they travelled in the said vehicle to the place of occurrence. While the appellants were passengers of the said vehicle, PW5 held out that he called his brother-in-law Mukesh (PW6) as his companion. PW5 held out that the vehicle reached the place of occurrence, the appellants got down from the vehicle, they committed the murder of the sons of PW1, whereafter PW5 and PW6, after having had watched the same, came back to their respective places of residence. PW6 also stated so in course of his evidence. However, the Investigating Officer, namely, Mahendra Singh Negi (PW11), surprisingly, did not reveal before the court below as to when and how he came to know about PW5 and PW6 and, in particular, their knowledge about the incident in question. In other words, PW5 and PW6 fell suddenly on the blessings of the God on the lap of PW11. Surprisingly, the vehicle was not seized; no effort was made to trace the owner of the vehicle; no log-book was seized and PW5 stated that he never maintained any log-book. Apart from the oral evidence of PW5 and PW6, there is nothing to show that, in fact, PW5 was or is a driver capable of driving a vehicle and he was hired to drive a vehicle. There is nothing to show that, in fact, appellants or any one of them hired any vehicle, which PW5 was authorized to drive. PW5 held out to the court below, in course of his deposition, that he knew the appellants, but in what connection? The logical conclusion would be that involvement of PW5 and PW6 in the matter was nothing, but manufacture of evidence by the investigation for the purpose of instilling false accusations on the appellants and, at the same time, covering up of the irresponsibility in making no effort to unearth the truth in the double murder, with which we are concerned. 5. PW5 and PW6 did not disclose when they disclosed their knowledge to any one associated with the investigation of the case. According to PW5 and PW6, after having had complied their obligation of taking the appellants to the place contracted for, they waited there to watch and see the appellants committing murder and dacoity and only then they left the place. According to PW5 and PW6, after having had complied their obligation of taking the appellants to the place contracted for, they waited there to watch and see the appellants committing murder and dacoity and only then they left the place. No reliance can be placed on any such piece of evidence. 6. Govind Singh (PW9), in course of his evidence, alleged that the currency notes contained the signatures of PW2. Surprisingly, the seizure memo did not state that the seized currency notes contained signatures of any one, in addition to the printed signatures contained therein. PW2 came to the witness box before PW9 had come to the witness box. The notes in question were not shown to PW2 for the purpose of ascertaining whether the alleged signatures on the notes were of his or not. The evidence of PW9 to the effect that the seized currency notes contained signatures of PW2, in the circumstances, is not acceptable. Conclusion will be that the appellants have been framed for the offences being the subject matter of the First Information Report. The prosecution witnesses collectively assisted the Police in fabrication. 7. We, accordingly, allow the appeal and set aside the judgment under appeal. Appellants are in Jail. They be set free forthwith. 8. Let a copy of this judgment be sent alongwith the lower court records to the court below for compliance. 9. Let a copy of this judgment be also sent to the concerned Superintendent of Jail for compliance.