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Uttarakhand High Court · body

2012 DIGILAW 700 (UTT)

Ramesh Singh v. State of Uttaranchal

2012-11-22

BARIN GHOSH, U.C.DHYANI

body2012
Judgment Barin Ghosh, J. In the instant case, Bachan Singh died. In respect of the death of Bachan Singh, a First Information Report was lodged by his son Laxman Singh, who deposed in course of trial as PW6. In the First Information Report lodged on 1st May, 2004 at about 11:30 AM, it was stated that the incident in question occurred at 8:30 AM, when the appellant, his wife and his son murdered the victim. Appellant was charged for offences punishable under Section 302/34 and Section 452/34 and for many other offences. Accepting the eye-witness account narrated in course of evidence by Smt. Sundra Devi (PW3), Dayal Singh (PW4), Smt. Saroj Devi (PW5) and PW6, the court below, while has exonerated the wife of the appellant of all the charges as were levelled against her, convicted the appellant for offences punishable under Section 302 and Section 452 of IPC by awarding sentence of life imprisonment and three years’ rigorous imprisonment respectively together with fine of Rs. 2,000/- each. The son of the appellant having been declared juvenile, his case was transferred to the Juvenile Justice Board. In the present appeal, it is being contended that though the prosecution case is based on direct evidence, but the fact remains that no Court, in the backdrop of the facts and circumstances of the case, will believe the testimony of the witnesses, who purportedly gave direct evidence. It was contended that Smt. Sundra Devi, a neighbour, deposed that before the victim was murdered, a stone was thrown at him and he received the stone on his body. The Post Mortem Report, proved by Dr. Anand Shukla (PW1), did not show any such injury in the body of the deceased. PW3, at the same time, held out that the appellant was having a Lathi in his hand. The other eye-witnesses did not say so. PW4 Dayal Singh stated that the appellant was having a Khukri of one feet in length in his hand. Dayal Singh is the cousin of the deceased. The 5th witness, PW5 was Smt. Saroj Devi, who happens to be the sister-in-law of informant Laxman Singh, PW6. Saroj Devi and Laxman Singh, PW5 and PW6 respectively, however, did not say that the appellant was having any weapon in his hands. Dayal Singh is the cousin of the deceased. The 5th witness, PW5 was Smt. Saroj Devi, who happens to be the sister-in-law of informant Laxman Singh, PW6. Saroj Devi and Laxman Singh, PW5 and PW6 respectively, however, did not say that the appellant was having any weapon in his hands. At the same time, each of the said witnesses, namely, PW3, PW4, PW5 and PW6 held out that it was the appellant, who strangulated the victim. The Post Mortem Report suggested that the cause of death was ante mortem injuries, as were received by the deceased. It was stated that those injuries were breakage of the second, third and the fourth cervical vertebrae. Cervical vertebrae are the rings of the spine counted from the top. Therefore, the second, third and the fourth vertebrae were, and as reported in the Post Mortem Report, on the back of the neck of the deceased. The Post Mortem Report did not show that there was any mark of injury on the front side of the neck or even on the sides of the neck. 2. Learned senior counsel Ms. Pushpa Joshi, we think, correctly submitted that if strangulation was done from the front side of the deceased and the vertebrae were broken by the pressure of the four fingers of each palm, then, in order to give support to those four fingers, use of the thumbs must have had taken place and, if that be so, the same will leave some mark on the front portion of the neck or on the sides of the neck. She further submitted, which also appears to be correct, that in the event, strangulation was made from the back side, then the vertebrae were broken by using the thumbs and, accordingly, support of the thumbs was given by the four fingers of the palm from the front side of the neck and, accordingly, there would be some mark on the front or on the sides of the neck of the deceased. She submitted that in those circumstances, it would not be appropriate on the part of a prudent person to accept the alleged direct ocular evidence tendered by the prosecution through PW3, PW4, PW5 and PW6, inasmuch as, such evidence is contrary to the medical evidence also proved by the prosecution in course of trial. 3. She submitted that in those circumstances, it would not be appropriate on the part of a prudent person to accept the alleged direct ocular evidence tendered by the prosecution through PW3, PW4, PW5 and PW6, inasmuch as, such evidence is contrary to the medical evidence also proved by the prosecution in course of trial. 3. It is true that PW1 deposed that while strangulating, it is possible to break the vertebrae in question, but surprisingly, he did not make any effort to show that while making an attempt to break vertebrae by strangulation, it is possible that no mark of strangulation will be left on any other part of the neck. Though PW1 stated that the breakage of the vertebrae in the instant case occurred through strangulation, but he did not state that the same was done by user of palm. He, at the same time, did not say that the same was done by any other means. On the other hand, as aforesaid, the direct evidence of PW3, PW4, PW5 and PW6 seems to be strangulation by use of palm. That being the situation, the alleged direct evidence being contrary to the medical evidence, no reliance can be placed thereon. Furthermore, as aforesaid, whereas, according to PW3, appellant was having a Lathi in his hands; according to PW4, appellant was having a one feet long Khukri in his hand; and, according to PW5 and PW6, he was having nothing in his hands and the death is by strangulation. Appellant is, therefore, entitled to benefit of doubt. 4. Giving him such benefit of doubt, we exonerate the appellant of the charge under Section 302 of IPC. 5. The one and the only evidence of house trespass is alleged murder of the victim by the appellant inside the house of the victim. Inasmuch as, we are unable to accept the ocular version of PW3, PW4, PW5 and PW6, we are unable to accept that there was a house trespass by the appellant. We, therefore, also exonerate the appellant of the charge under Section 452 of IPC. 6. The appeal is allowed. The judgment and the sentence are set aside. Appellant is in Jail. He be released forthwith. 7. Let a copy of this judgment be sent to the court below along with the lower court records for compliance.