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2012 DIGILAW 517 (UTT)

Prem Singh & Others v. State of Uttarakhand

2012-09-03

BARIN GHOSH, U.C.DHYANI

body2012
Barin Ghosh, CJ.— (Oral) The learned counsel, who was engaged by Kishan Singh, appellant in Criminal Appeal No. 225 of 2004, is no more. Mrs. Pushpa Joshi is appearing in the other two connected appeals on behalf of the appellants therein. She is otherwise competent and ready to argue the case also on behalf of Kishan Singh. Accordingly, we appoint Mrs. Pushpa Joshi as Amicus Curiae insofar as Criminal Appeal No. 225 of 2004 is concerned to argue the case on behalf of Kishan Singh, appellant. 2. These appeals are against the common judgment, whereby and under, all the appellants in these appeals have been convicted under Section 302, read with Section 120-B and Section 34 of the Indian Penal Code as well as under Section 201, read with Section 34 of the Indian Penal Code. Appellant Davendra Singh was also convicted under Section 309 of the Indian Penal Code. Each of them was also charged for offence punishable under Section 25 of the Arms Act, but all of them have been acquitted from the said charge and no appeal has been preferred by the State. 3. Appellant in Criminal Appeal No. 209 of 2004, namely, Davendra Singh has died. The appeal by him, thus, stands abated. 4. The victim, in the instant case, died of gunshot injury inside a jungle. He was a serving Jawan in the Army and had come to his native place during the vacation. The First Information Report was lodged by his Uncle after the dead body of the victim was recovered. It was alleged in the First Information Report that the victim and Davendra Singh and others went to the jungle to organise a picnic on the day previous to the date of filing of the First Information Report. 5. In course of investigation, one Sri Santosh Kumar was arrested. The said Santosh Kumar is said to have confessed before the Investigating Officer that he, Davendra Singh and the other appellants conspired to kill the victim and, in furtherance of that conspiracy, took the victim on the pretext of holding picnic inside the jungle, where Davendra Singh killed the victim by using his brother’s gun and, thereafter, all of them concealed the dead body of the victim inside a bush and left the place. The said Santosh Kumar was declared approver in the case. The said Santosh Kumar was declared approver in the case. Along with the dead body of the victim, a licensed single-barrel gun belonging to the brother of Davendra Singh, namely of Narendra, as well as a licensed doublebarrel gun belonging to the father of the victim, namely of Jung Bahadur, were recovered. Those were sent to Forensic Science Laboratory. After completion of the investigation, in course whereof, some more licensed guns were recovered from the licensed owners thereof; two charge-sheets were filed. On the basis of one of the charge-sheets, each of the appellants, in each of these appeals, was charged for having committed offences punishable under Section 201, read with Section 34, of the Indian Penal Code and Section 302, read with Section 120-B of the Indian Penal Code and also under Section 302, read with Section 34 of the Indian Penal Code. On the basis of the other charge-sheet, separate charges were also framed against many others, including the appellants herein, for offence punishable under Section 25 of the Arms Act. As aforesaid, the charge under Section 25 of the Arms Act could not be put home and, accordingly, everyone charged for offence punishable under the said Section has been acquitted. As aforesaid, no appeal has been preferred against the order of acquittal. 6. Each of the appellants, herein, has been convicted under Section 201, read with Section 34 of the Indian Penal Code. Each of them has also been convicted under Section 302, read with Section 120-B, as well as under Section 302, read with Section 34 of the Indian Penal Code. Appellant Davendra Singh was also convicted under Section 309 of the Indian Penal Code. 7. The above convictions are founded on the sole evidence tendered by the approver. According to the approver, victim, who was a serving Jawan in the Indian Army, did not spend money on his friends, namely, the appellants by giving them feasts. Accordingly, each of the appellants conspired amongst each other that they will do away with the victim and Davendra Singh would take the responsibility of doing away with the victim. He stated that, on the fateful day, in the morning, appellants and the victim, as well as he, collected from Krishnanand Bhatt (PW2) a Goat upon payment of a sum of ` 400/- and with a promise to pay the remaining sum of ` 600/- within a week. He stated that, on the fateful day, in the morning, appellants and the victim, as well as he, collected from Krishnanand Bhatt (PW2) a Goat upon payment of a sum of ` 400/- and with a promise to pay the remaining sum of ` 600/- within a week. After having had collected the Goat, they prepared meat of the Goat in the cowshed of PW2, cooked rice and all of them ate the same. Thereafter, they rested for a while and, later, around 5 O’ clock in the evening, they went towards the jungle for the purpose of hunting. Each one of them was carrying a licensed gun belonging to some member of his family. He also stated that, no sooner they reached the jungle, they dispersed in different directions. He then stated that he saw Davendra Singh firing towards the victim and the victim receiving the gunshot injury. Hearing the sound of the gun, the other appellants gathered. Before the other appellants gathered, Davendra Singh fired upon himself from the self-same gun that he used on the victim, after reloading the same, and threw his gun by the side of the dead body of the victim. He, further, stated that, when other appellants came, the dead body of the victim was pushed inside a bush, along with the guns of Davendra Singh and of the victim. He, further, stated that two of the appellants took Davendra Singh for medical treatment. 8. This piece of evidence was relied by the prosecution and also by the court below. In the event, this piece of evidence is accepted as gospel truth, then also, none of the appellants, except Davendra Singh, can be convicted under Section 302, read with Section 120-B or Section 34 of the Indian Penal Code. The fact remains that there is no allegation of any overt act by any of the appellants, except Davendra Singh. At the same time, the fact remains that there is no allegation that any of the appellants, except Davendra Singh, was in the vicinity of the victim at the time when the victim received the gunshot injury, which caused his death. Appellants, except Davendra Singh, can only be convicted provided it is established that they conspired to kill the victim. The conspiracy to kill can only be substantiated provided it is established that the appellants had intention of causing death to the victim. Appellants, except Davendra Singh, can only be convicted provided it is established that they conspired to kill the victim. The conspiracy to kill can only be substantiated provided it is established that the appellants had intention of causing death to the victim. The intention of causing death, according to the evidence, is reluctance on the part of the victim in giving feasts to the appellants. While non-grant of feasts by the victim motivated the appellants to murder him, appellants themselves gave a feast to the victim, appears to be the case propounded by the prosecution before the court below. From the conduct, as above, it is not decipherable that intention of causing death to the victim was eminent in any of the appellants, except Davendra Singh. In other words, prosecution failed to discharge its obligation of establishing crime committed by the appellants, except Davendra Singh, which is punishable under Section 302, read with Section 120-B or Section 34 of the Indian Penal Code. According to the evidence of the approver, the dead body was pushed inside the bush. That the same was done for the purpose of concealing murder, did not come on evidence. There was, therefore, no ingredient of an offence punishable under Section 201 of the Indian Penal Code. 9. We, accordingly, set aside the judgment and the order under appeal, in Criminal Appeal No. 205 of 2004 and Criminal Appeal No. 225 of 2004, in relation to the appellants therein. All of them are on bail. They need not surrender. Their bail bonds are cancelled and their sureties are discharged. Both the appeals are, accordingly, allowed. Let a copy of this judgment be sent to the court below along with the Lower Court Records. _____________