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2012 DIGILAW 665 (UTT)

Ram Narayan v. State of Uttarakhand

2012-10-18

BARIN GHOSH, U.C.DHYANI

body2012
JUDGMENT U.C. Dhyani, J. 1. One Manoj Kumar Gupta wrote a complaint to Inspector In-Charge, police station Kotwali, Tanakpur, District Champawat, on 01.07.2009, enumerating the facts therein that on 01.07.2009, at 08:45 A.M., his wife Juhi Gupta was informed by a labourer, who was working in the house of their neighbour, that they (victims) were not opening the gate of their house. Informant’s uncle Shyam Mohan and aunt Pramila Gupta were residing in the neighbourhood of the informant. Informant’s wife entered into the house of victims from the rear door and found that the victims were lying in a pool of blood on the floor of bathroom. Ambulance 108 was pressed into service and victims were taken to District Hospital, Tanakpur, where both of them were declared, ‘brought dead’. Informant suspected that somebody entered into the house of victims in the intervening night of 30.06.2009/01.07.2009 with the intention of committing theft. While the miscreant was busy in his design, the victims woke up and resisted. In retaliation, the assailant killed the victims. On the basis of said complaint, chik FIR was registered at the police station, Tanakpur on 01.07.2009, at 09-10 A.M. The distance between the place of occurrence and the police station concerned was half kilometer and, therefore, the FIR was lodged at the earliest opportunity. Criminal law was set into motion on the basis of said FIR. After investigation, a charge sheet was filed against the accused-appellant Ram Narayan in relation to the offences punishable under Sections 302, 394 and 411 of IPC. When the trial began, learned Sessions Judge, Champawat framed charges against the accused-appellant Ram Narayan for the offences punishable under Sections 302, 394 and 411 of IPC, to which he pleaded not guilty and claimed trial. 2. As many as 14 witnesses viz., PW1 Manoj Kumar Gupta, PW2 Dharmanand, PW3 Sunil Agarwal, PW4 Riaz Ahmad, PW5 Harish Chandra, PW6 Rakesh Gupta, PW7 Constable Laxman Chand, PW8 Mukul Gupta, PW9 Constable Manoj Singh, PW10 Dr. I.A. Khan, PW11 S.I. Jagat Singh, PW12 Atul Gupta, PW13 Inspector In-Charge Dinesh Tiwari and PW14 S.H.O. B.C. Sharma were examined on behalf of the prosecution. Incriminating evidence was put to the accused. In the statement recorded under Section 313 of Cr. P.C. the accused-appellant said that he was falsely implicated in the case. He also said that on 28.06.2009 or 29.06.2009, he went to his hometown. Incriminating evidence was put to the accused. In the statement recorded under Section 313 of Cr. P.C. the accused-appellant said that he was falsely implicated in the case. He also said that on 28.06.2009 or 29.06.2009, he went to his hometown. He was arrested by the police from his residence. He was innocent. No evidence was, however, adduced in defence. 3. After considering the evidence on record, learned Sessions Judge convicted the accused-appellant for the offences punishable under Sections 302, 394 and 411 of IPC and was sentenced appropriately. Aggrieved against the said judgment and order, present criminal appeal was preferred. 4. PW1 Manoj Kumar Gupta proved the contents of his complaint (Ext. Ka-1) and said that such complaint was lodged by him in police station, Tanakpur, on 01.07.2009. This witness was also signatory to inquest reports (Ext. Ka-2 and Ext. Ka-3). He also witnessed memo (Ext. Ka-4) of taking into possession of blood stained pieces of floor and ordinary pieces of floor. PW1 was also a signatory to the recovery memo (Ext. Ka-5) of taking into possession of the ornaments from the place of incident and handing over the same to the eldest son of victims. He also identified his signatures on the report (Ext. Ka-6) written by the younger son of deceased regarding the articles which were found missing. PW1 was not the eyewitness to the incident. PW2 Dharmanand was the cashier of Shyam Enterprises, of which victim Shyam Mohan Gupta was the proprietor. He alongwith the informant Manoj Kumar Gupta availed the services of ambulance 108 and took the victims to the Government Hospital, where both the victims were declared, ‘brought dead’. PW3 Sunil Kumar Agarwal was the witness of taking of blood stained pieces of floor by the police. This witness was a signatory to Ext. Ka-4, i.e., recovery memo of taking of such pieces of floor. PW4 Riaz Ahmad deposed that the dead bodies of victims were lying in their bathroom, ambulance was called for and the victims were taken to Government Hospital, where they were declared, ‘brought dead’. 5. PW5 Harish Chandra saw the accused-appellant coming out from the rear of the house of victims on 01.07.2009. The time was not disclosed by him. The accused was carrying a polythene bag and went towards Shivalaya. According to this witness, the accused was a carpenter working in the house of victims. 5. PW5 Harish Chandra saw the accused-appellant coming out from the rear of the house of victims on 01.07.2009. The time was not disclosed by him. The accused was carrying a polythene bag and went towards Shivalaya. According to this witness, the accused was a carpenter working in the house of victims. The accused was not seen thereafter. PW6 Rakesh Gupta was the witness to the arrest of accused-appellant on 06.07.2009, at 02:45 P.M., when the accused was returning from Nepal. Gold ornaments alongwith a silver anklet was recovered from the possession of accused. A cash of Rs. 49,700/- was also recovered from his possession. The accused-appellant also confessed his guilt before the police. Blood stained basula (carpenter’s axe) containing hair and chorsi (carpenter’s chisel) were recovered on the disclosure and pointing of accused-appellant at 06:30 P.M. on the selfsame day. 6. PW7 Constable Laxman Chand was a formal witness, who proved chik FIR (Ext. Ka-8) and copy of extract of G.D. (Ext. Ka-9). PW11 S.I. Jagat Singh was also a formal witness, who prepared inquest reports (Ext. Ka-2 and Ext. Ka-3) of the dead bodies of victims. 7. PW8 Mukul Gupta was deaf and dumb, but literate, and therefore, he gave his statement in writing endorsing the prosecution story. Questions were written by the Court, as were asked by learned defence counsel, and PW8 wrote the answers of those questions. He did not see the incident. Since PW8 saw the carpenter on 30.06.2009 in his house, therefore, he raised a finger of suspicion on the appellant. PW9 Constable Manoj Singh was the signatory to inquest reports and the papers relating to the postmortems of the deceased. 8. PW10 Dr. I.A. Khan conducted postmortems on the dead bodies of victims on 01.07.2009 and found 07 incised wounds on the dead body of victim Pramila Gupta and 07 incised wounds, alongwith one lacerated wound, on the dead body of victim Shyam Mohan Gupta. The Medical Officer opined that the cause of death of both the victims was shock and haemorrhage as a result of ante mortem injuries. 9. PW12 Atul Gupta received a phone call in the morning of 01.07.2009 at Delhi, regarding the death of his parents. When PW12 came from Delhi, he alongwith PW1 Manoj Kumar prepared a list of missing articles. 9. PW12 Atul Gupta received a phone call in the morning of 01.07.2009 at Delhi, regarding the death of his parents. When PW12 came from Delhi, he alongwith PW1 Manoj Kumar prepared a list of missing articles. PW12 was also a witness to the recovery of instruments, which were used in the commission of crime, at the disclosure and pointing of accused-appellant. He was also a witness to the recovery of Rs. 49,700/- gold ornaments and a silver anklet, which were found from the possession of the accused-appellant. 10. PW13 Inspector In-Charge Dinesh Chandra Tiwari was the first Investigating Officer of the case and PW14 Station House Officer B.C. Sharma was his successor. 11. In reply to question no. 20 of the statement recorded under Section 313 of Cr. P.C. accused-appellant said that he went to his native place on 28th or 29th (June 2009) and he was apprehended by the police at his house. In reply to question no. 12 of the statement under Section 313 of Cr. P.C. the accused-appellant said that recovery memo was not prepared by the police in his presence. Police asked him to put his signatures on a blank paper, which he did. No recovery was made on his disclosure. It appears that the appellant was implicated in the case only because he was working in the house of victims as a carpenter. Since the appellant was not seen after the incident, therefore, he was apprehended on the basis of suspicion. Fingerprints of the appellant were not compared with the fingerprints available on the scene of crime. No report of fingerprint expert was procured. Murder weapons were not sent for chemical examination either, in order to ascertain whether the instruments allegedly used by the appellant carried human blood or not? 12. Although the Medical Officer said that the ante mortem injuries sustained by the victims were possible to have been caused by sharp edged weapon, but the Medical Officer did not say that chorsi and basula were capable of killing somebody. The injuries sustained by the victims could not be connected with the instruments of assault in this case. Although recovery memo was signed by the appellant, as was admitted by him in his statement under Section 313 of Cr. P.C. but he said that he did so at the instance of police. The appellant did not claim money. The injuries sustained by the victims could not be connected with the instruments of assault in this case. Although recovery memo was signed by the appellant, as was admitted by him in his statement under Section 313 of Cr. P.C. but he said that he did so at the instance of police. The appellant did not claim money. The recovery on the pointing of accused-appellant is not acceptable. No prudent person will believe that an accused will take mangalsutra and silver anklet, which are of little value and leave valuable articles of gold and cash in the house of victims. Why one will leave gold bangles and steal silver anklet? If the recovery aspect of the story is not acceptable, then, the story of murder is also not believable. There was no eyewitness to the killing of victims. So far as non-appearance of the appellant in the house of victims is concerned, since he had no work in the house of victims, therefore, he did not report for the duty to the victims. Non-appearance of appellant in the house of victims did not mean that he absconded. Further, it was also difficult to believe that the robbery and double murder was possible by single person with the instruments used in carpentry. Had there been allegation of killing by the firearms, the same would have been acceptable, but it was not believable that a carpenter will kill two persons single handedly with the instruments used in carpentry. It was also difficult to assimilate whether the appellant will conceal himself in the balcony from 10:00 P.M. to 4:30 A.M.? It was alleged that the appellant kept on waiting for the victims to come out of their room throughout night. 13. There is one other surprising aspect of the case. It was stated that on having received a clue from the informer, police went to arrest the appellant. Why, then, the police will be accompanied by PW6 Rakesh Gupta and PW12 Atul Gupta, who happened to be maternal uncle and nephew? It was evidenced that when the police was going towards Sharda Barrage to nab the appellant, PW6 and PW12 met the policemen and joined the police party. Was it a sheer coincidence? Will any reasonable prudent person believe the same? The answer is an emphatic ‘no’. It was evidenced that when the police was going towards Sharda Barrage to nab the appellant, PW6 and PW12 met the policemen and joined the police party. Was it a sheer coincidence? Will any reasonable prudent person believe the same? The answer is an emphatic ‘no’. As such, the evidence tendered by PW6 Rakesh Gupta and PW12 Atul Gupta was also not acceptable. It was the prosecution case that the appellant was arrested when he was coming back from Nepal. The same was also not believable. Appellant belonged to Bareilly. Instead of adopting the familiar route of coming to Champawat, why will he adopt the unfamiliar route of coming via Nepal? There were also glaring contradictions in the testimony of witnesses of recovery. It needs to be underlined again that there was no direct evidence in this case. The present case was solely based upon circumstantial evidence, which could not be proved by prosecution beyond reasonable doubt. In such a situation, the appellant is liable to be given benefit of doubt. 14. The appeal deserves to be allowed. The same is, accordingly, allowed. The conviction and sentence recorded by the trial court against the accused-appellant Ram Narayan is hereby set aside. He is acquitted of the charges levelled against him. The appellant is in jail. He shall be set at liberty forthwith, if not required to be detained in connection with any other crime. Let a copy of this judgment be also sent to the Superintendent of jail concerned, where the appellant is currently serving out the sentence. Mat. Exts. 1 to 5 be returned to the next of kin (PW12 Atul Gupta) as per rules. Lower court records be sent back.