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2012 DIGILAW 541 (UTT)

Sunil Kumar v. State of Uttaranchal

2012-09-06

BARIN GHOSH, U.C.DHYANI

body2012
JUDGMENT U.C. Dhyani, J. One Subhash Chandra lodged a complaint (Ext. Ka-1) in police station Kotwali, Kashipur (Udham Singh Nagar) on 01.08.1999, alleging that on the said date when he came to take lunch in his house at 02:25 P.M., his adopted son Sunil came there in an infuriated state and started hurling abuses at informant’s wife Shashi. Informant’s wife Shashi tried to console him, but to no avail. Appellant Sunil inflicted several blows of knife on victim saying that he will finish her off today. On raising alarm by the informant, Rajesh came on the place of incident, who saw Sunil fleeing away from the spot. Victim Shashi fell on the ground and died immediately. 2) The motive to commit crime was attributed to an incident which took place a week ago. Appellant Sunil was ousted by the informant from his house. He was residing separately in a rented accommodation. When appellant threatened informant and his wife of dire consequences, informant tried to pacify him. In the intervening night of 31.07.1999 and 01.08.1999, appellant broke open the locks of shop of informant. When the appellant came in the shop in the morning of 01.08.1999, the informant reprimanded the appellant for said act. 3) On the basis of above report, a chik FIR was lodged on 01.08.1999, at 03:30 P.M. against the appellant. Occurrence took place on the same day at 02:30 P.M. The distance between the place of occurrence and the police station concerned was two furlongs and, hence, there appeared to be no delay in lodging the first information report. 4) After completion of investigation, a charge sheet was submitted by the Investigating Officer against the accused for the offences punishable under Sections 302 and 504 of IPC. When the prosecution opened the case before the trial court, a charge for the offence punishable under Section 302 of IPC was framed against the accused / appellant, who pleaded not guilty and claimed trial. 4) Prosecution examined five witnesses namely, P.W.1 Subhash Chandra, P.W.2 Rajesh Kumar, P.W.3 Dr. Surendra Singh (Medical Officer), P.W.4 Sub Inspector Madan Narain Joshi and P.W.5 Inspector Mohd. Anees (Investigating Officer). In defence, D.W.1 Annu Chaudhary was produced on behalf of the accused / appellant. 4) Prosecution examined five witnesses namely, P.W.1 Subhash Chandra, P.W.2 Rajesh Kumar, P.W.3 Dr. Surendra Singh (Medical Officer), P.W.4 Sub Inspector Madan Narain Joshi and P.W.5 Inspector Mohd. Anees (Investigating Officer). In defence, D.W.1 Annu Chaudhary was produced on behalf of the accused / appellant. 5) After the prosecution evidence was closed, incriminating evidence was put to accused / appellant under Section 313 of Cr.P.C., in reply to which he said that the evidence adduced against him was false. The accused also said that he did not commit the murder and he was innocent. After hearing both the sides, learned trial court on 16.05.2001, convicted the appellant for the offence punishable under Section 302 of IPC and sentenced him to imprisonment for life. The convict raised a plea of juvenility before learned trial court, but the same was not accepted. Aggrieved against the order of conviction, the convict preferred an appeal before this Court, which was disposed of on 13.05.2003, whereby the matter was remanded to the trial court after setting aside the impugned judgment and order dated 16.05.2001, with a direction upon the trial court to decide the case expeditiously in the light of the observations made in said judgment. After hearing the parties in compliance of the directions of the Hon’ble High Court, learned trial court, vide judgment and order dated 30.06.2004, convicted the accused / appellant for the offence punishable under Section 302 of IPC., whereby he was awarded imprisonment for life and a fine of `5,000/- was also imposed. Further aggrieved against said order, present criminal appeal was preferred by the convict on 30.07.2004. This Court, vide order dated 30.09.2004, passed on bail application moved on behalf of the appellant, granted bail to the appellant, during the pendency of appeal. A jail appeal was also filed by the convict through the Jailer, District Jail, Haridwar, which was received by this Court on 08.09.2004. Since both the appeals were preferred against the same judgment and order of the learned trial court, the same are being decided together by a common judgment. 6) P.W.1 Subhash Chandra (informant) in his examination-in-chief affirmed the contents of complaint (Ext. Ka-1). There appears to be no need to reproduce what he said in his examination-in-chief for the sake of brevity, for the same was verbatim reproduction of the contents of FIR. 6) P.W.1 Subhash Chandra (informant) in his examination-in-chief affirmed the contents of complaint (Ext. Ka-1). There appears to be no need to reproduce what he said in his examination-in-chief for the sake of brevity, for the same was verbatim reproduction of the contents of FIR. In addition, P.W.1 said that accused / appellant was the son of the brother of informant’s first wife, who was adopted by him. It may be noted here that the examination-in-chief of P.W.1 was recorded by learned trial court on 04.05.2000. A year later on 09.04.2001, when P.W.1 appeared for cross-examination, in the very first sentence, he took a ‘U’ turn. What made him to retract from his earlier statement was inconceivable. It is quite surprising that he was given such time to succumb to pressure of appellant, his adopted son. Whether the same was emotional blackmail or anything else, God only knows? But even then, the same does not help the appellant, in as much as, P.W.1 admitted in his cross-examination that the appellant was ousted by him from his residence, and appellant was residing in a separate accommodation. P.W.1 admitted having written complaint (Ext. Ka-1) regarding the killing of his wife and also admitted that P.W.2 Rajesh came on the spot when the occurrence took place. Once, P.W.1 has stated having written the complaint (Ext. Ka-1), how can he back out from the contents of such complaint? He did not say that he wrote the complaint under duress and if so, what was such compulsion? How does P.W.1 get out of this report? He cannot get out of it. 7) If P.W.2 Rajesh did not support prosecution story, the same was understandable, for he did so at the instance of P.W.1. The date of recording of cross-examination of P.W.1 (09.04.2001) and the date of recording of examination-in-chief of P.W.2 (09.04.2001) before the court below was the same. 8) P.W.3 Dr. Surendra Singh, Medical Officer, conducted postmortem on the dead body of victim on 02.08.1999. The Medical Officer found nine incised wounds on abdomen, iliac crest, shoulder and mainly on different parts of chest. He opined that the cause of death of victim was shock and haemorrhage as a result of ante mortem injuries. Thus, the accusation of P.W.1 against the appellant that he inflicted blows of knife on victim was corroborated by the medical evidence. He opined that the cause of death of victim was shock and haemorrhage as a result of ante mortem injuries. Thus, the accusation of P.W.1 against the appellant that he inflicted blows of knife on victim was corroborated by the medical evidence. It was also recorded by the Medical Officer in the autopsy report of the victim, that a three months’ old foetus was found in her womb. 9) P.W.4 Sub Inspector Madan Narain Joshi was the formal witness and P.W.5 Inspector Mohd. Anees was the Investigating Officer, who recovered knife used in the commission of crime on the disclosure and pointing of the appellant. P.W.5 also proved recovery memo (Ext. Ka-8) of blood stained knife, which contained the signatures of appellant Sunil Arora. Forensic Science Laboratory report dated 17.11.1999 submitted by its Assistant Director confirmed human blood on the articles (including blood stained knife recovered on the pointing of appellant) sent to such Laboratory. It will be worthwhile to mention here that such report of Assistant Director of Forensic Science Laboratory was admissible under Section 293 of Cr.P.C. Thus, there is written complaint of P.W.1, eyewitness account of P.W.1 (examination-in-chief), admission of P.W.1 in his cross-examination that such a report was submitted, there was no evidence of duress on him, recovery of blood stained knife on the disclosure and pointing of appellant, supported by report of FSL and prosecution story corroborated by medical evidence. Nothing else required to be proved in the circumstances. The evidence tendered by D.W.1 Annu Chaudhary, a friend of appellant, was based on hearsay, raising an accusing finger on the informant and as such was inadmissible in evidence. There is no infirmity in the judgment and order of the court below. The logical deduction would be that prosecution has been able to prove the case against the accused / appellant beyond reasonable doubt. There seems to be no reason to interfere with the judgment and order under appeal, passed by learned trial court on 30.06.2004. 10) Both the appeals are liable to be dismissed. The same are, accordingly, dismissed. The judgment / order passed by learned court below is affirmed, as also the conviction and sentence recorded against the accused / appellant Sunil Kumar. Accused / appellant is on bail. His bail is cancelled. He is directed to surrender before the Court concerned to serve out the sentence awarded to him. The same are, accordingly, dismissed. The judgment / order passed by learned court below is affirmed, as also the conviction and sentence recorded against the accused / appellant Sunil Kumar. Accused / appellant is on bail. His bail is cancelled. He is directed to surrender before the Court concerned to serve out the sentence awarded to him. 11) Let a copy of the judgment and order along with lower court record be sent back to the Court below for ensuring compliance as above.