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Uttarakhand High Court · body

2012 DIGILAW 713 (UTT)

State of Uttaranchal v. Jagmohan Singh

2012-11-27

BARIN GHOSH, U.C.DHYANI

body2012
Judgment U.C. Dhyani, J. Present Government Appeal was preferred by the State of Uttaranchal against the judgment and order dated 29.09.2004, passed by learned Sessions Judge, Pauri Garhwal in Sessions Trial No. 160 of 2004, whereby accused-respondents Jagmohan Singh Rawat, Vasudev Singh and Deepak Kumar were acquitted of the charges of offences punishable under Sections 302/34 & 201/34 IPC. 2. It was mentioned in the grounds of appeal that the judgment and order passed by learned Sessions Judge, Pauri Garhwal was illegal and contrary to the facts and material evidence available on record. Learned trial court has wrongly disbelieved the prosecution evidence and wrongly acquitted accused-respondents. It was therefore, prayed that the Govt. Appeal be allowed and impugned order of acquittal of accused-respondents may be set aside A prayer was also made to convict and sentence the respondents accordingly to law. 3. A First Information Report was lodged by victim’s father PW1 Kishan Singh Rawat. In that, it was stated that Pawan Singh Rawat (victim) proceeded from his residence on 04.10.2000, at 10:00 a.m. to SSB Group Centre, Srinagar, Garhwal, but did not reach the destination till 05.10.2000. The informant was apprised on telephone that Pawan Singh did not reach SSB Centre. On hearing the said news, the informant reached Srinagar on 06.10.2000, where he came to know that the dead body of Pawan Singh was sent for post mortem examination. Informant was instructed to reach District Hospital, Pauri, whereupon he identified his deceased son. It was prayed that the culprits be brought to book. 4. On the basis of said report, investigation was set into motion. When the same was completed, a charge sheet for the offences punishable under Sections 302 & 201 IPC was submitted against the accused-respondents. When the prosecution opened it’s case, charges for the offences punishable under Sections 302/34 IPC and Sections 201/34 IPC were framed against the accused-respondents, to which they pleaded not guilty and claimed trial. Prosecution examined as many as 10 witnesses, viz., PW1 Kishan Singh, PW2 Bhaskar Lal Shah, PW3 Preet Pal Singh, PW4 Dr. Sanjeev Prakash, PW5 Jagmohan Anand, PW6 Vijay Kumar, PW7 Sri Prashant Joshi, PW8 HC Narendra Dutt, PW9 HC Vijay Pal Singh and PW10 Kailash Panwar. Thereafter, the statements of the accused-respondents were taken under Section 313 Cr.P.C., in which they said that they were falsely implicated in connivance with the police. Sanjeev Prakash, PW5 Jagmohan Anand, PW6 Vijay Kumar, PW7 Sri Prashant Joshi, PW8 HC Narendra Dutt, PW9 HC Vijay Pal Singh and PW10 Kailash Panwar. Thereafter, the statements of the accused-respondents were taken under Section 313 Cr.P.C., in which they said that they were falsely implicated in connivance with the police. They said that they did not make their confessional statements. No evidence was given in defence. After considering the evidence on record, accused-respondents Jagmohan Singh Rawat, Vasudev Singh and Deepak Kumar were acquitted of the charges framed against them. Aggrieved against the said order, present Govt. Appeal was preferred. 5. PW1 Kishan Singh was the father of the victim. In his examination-in-chief, he said that his son was working in SSB Canteen, Srinagar. He was also selected in SSB and was to give his joining on 05.10.2000. Victim proceeded from his house on 04.10.2000, but did not reach SSB Centre up to the scheduled date of joining. On 06.10.2000, PW1 Kishan Singh went to Srinagar, where he came to know that a dead body was found in Bughani Road. When PW1 went to Pauri, he recognized the dead body of his son. PW1 proved his complaint (Ext.Ka-1). 6. PW2 Bhaskar Lal Shah, SI was posted in the same capacity in PS Srinagar on 05.10.2000. On the selfsame day, constable Deepak Negi gave PW2 an information regarding an unidentified dead body. PW2 got the same recorded in G.D. (Ext.Ka-6) and also prepared inquest report. PW2 also proved the papers (Ext.Ka-8 to Ext.Ka-12) relating thereto. Blood stained soil/simple soil, a pointed stone, an empty Bisleri bottle, whisky bottle, glasses of thermocol and broken teeth of victim were taken into custody by the police, a memo (Ext.Ka-13) whereof was prepared. On 30.11.2000, accused persons were arrested. All of them confessed their guilt, which led to the discovery of empty bottle, thermocol glasses and whisky bottle, etc. 7. PW3 Preetpal Singh was the owner of a PCO in Srinagar. Accused-respondent Deepak Kumar worked in said PCO during the night shift. On 04.10.2000, when PW3 Preetpal Singh went to take stock of PCO, he found that Deepak was not there. His friend was sitting there, who said that Deepak was away in Srikot to attend a marriage. The next day also Deepak was not available. PW3 went to Deepak’s father to enquire about him, whereupon Deepak’s father said that Deepak had gone to Delhi. His friend was sitting there, who said that Deepak was away in Srikot to attend a marriage. The next day also Deepak was not available. PW3 went to Deepak’s father to enquire about him, whereupon Deepak’s father said that Deepak had gone to Delhi. 8. PW4 Dr. Sanjeev Prakash, Medical Officer, District Hospital, Pauri conducted post mortem on the dead body of the victim on 06.10.2000, at 10:15 a.m. The victim died 1-2 days ago. The Medical Officer found multiple lacerated wounds, bone deep, present over scalp; multiple small lacerated wounds, bone deep, present over scalp; multiple lacerated wounds, present over the face, more on left side; multiple lacerated wounds, communicating into the chest cavity (punctured wounds); multiple lacerated wounds, some of them were punctured wounds, present over the abdomen and multiple lacerated wounds, muscle deep, present over back. Cause of death of victim was shock and haemorrage as a result of ante mortem injuries on head, chest and abdomen. The Medical Officer also proved post mortem report (Ext.Ka-18). 9. PW5 Jagmohan Anand, a shopkeeper in Srinagar was called by S.O. on 30.11.2000. He went to the police station along with a person named Kuldeep. PW5 then went to PWD Guest House in the police jeep. All the accused-respondents also accompanied him (PW5) in the police jeep. Accused-respondents got the liquor bottle, thermocol glasses etc recovered and the police prepared recovery memo (Ext.Ka-17) of the same accordingly. 10. PW6 Vijay Kumar alias Raj used to work from 09:00 a.m. to 06:00 p.m. in the said STD booth. PW6 went on leave since 04.10.2000 and when he came back on 09.10.2000, Deepak was not found on duty. PW6 did not say anything in respect of the accused-respondent Jagmohan Singh and therefore, he (PW6) was declared hostile. PW8 head Constable Narendra Dutt was posted in SSB Canteen as NCO in October, 2000. The victim Pawan Singh was also working in the said canteen. Later on, Pawan Singh was selected in SSB. Victim was to join SSB on 05.10.2000. Victim went to his house before joining his new assignment. PW9 Head Constable Vijay Pal Singh proved chik FIR (Ext.Ka-23) and copy of the same in G.D. (Ext.Ka-24). PW10 Kailash Panwar was the Investigating Officer of the case, who proved the site plan (Ext.Ka-25) and charge sheet (Ext.Ka-28), besides other documents. Victim was to join SSB on 05.10.2000. Victim went to his house before joining his new assignment. PW9 Head Constable Vijay Pal Singh proved chik FIR (Ext.Ka-23) and copy of the same in G.D. (Ext.Ka-24). PW10 Kailash Panwar was the Investigating Officer of the case, who proved the site plan (Ext.Ka-25) and charge sheet (Ext.Ka-28), besides other documents. PW10 also stated that the accused-respondents confessed their guilt and the same were recorded in the form of statements under Section 164 Cr.P.C. In the cross-examination, PW10 admitted that there was no eyewitness to the alleged incident. He denied that the accused-respondents did not confess their guilt and their signatures were taken on blank papers. 11. The prosecution case is not proved on the basis of the testimony of the aforesaid witnesses, even if their evidence be treated as gospel truth. There was neither head nor tail of the prosecution story. We don’t know why the aforesaid witnesses were examined on behalf of the prosecution. We don’t know what the Investigating Officer wanted to prove by recording the statements of PW2 to PW10 (except PW4, PW7). PW1 was the informant, who was not the eyewitness, PW4 was the Medical Officer and PW7 was the Judicial Magistrate, whose evidence is being dealt with in the following paragraph. 12. The recording of evidence of PW7 Sri Prashant Joshi, the then Judicial Magistrate, Kotdwar had some sense. PW7 recorded the statements of the respondents under Section 164 Cr.P.C. PW7 said that he was posted as Judicial Magistrate, Srinagar, on 01.12.2000. He recorded the statements of the respondents, viz., Jagmohan Rawat, Vasudev and Deepak Kumar, on 02.12.2000, on the written request of Station Officer, P.S. Srinagar. The accused-respondents were produced before PW7 on 01.12.2000 for seeking judicial remand. PW7 enquired from the accused-respondents whether they wanted to confess their guilt or not? The respondents were told that they were not bound to confess their guilt. The statements of the respondents under Section 164 Cr.P.C. were recorded on 02.12.2000. The certificate was also given by PW7 at the end of the confessional statements of the respondents. In the cross-examination, PW7 said that the respondents were granted judicial custody remand on 01.12.2000. The said remand was given for 14 days. The respondents were summoned on 02.12.2000 only for the purpose of recording their statements. A time of 24 hours was given to them for rethinking/reconsideration. In the cross-examination, PW7 said that the respondents were granted judicial custody remand on 01.12.2000. The said remand was given for 14 days. The respondents were summoned on 02.12.2000 only for the purpose of recording their statements. A time of 24 hours was given to them for rethinking/reconsideration. PW7 admitted that the police brought the respondents in the Court on 02.12.2000. 13. Thus the evidence given by PW7 was the only piece of evidence, which was directed towards proving the guilt of the accused-respondents. Learned Court below on pages no. 11 & 12 of the impugned judgment has discussed the legal infirmities in such statements of the respondents. Learned Sessions Judge said that it was not recorded by the Judicial Magistrate whether the respondents were actually sent to jail on 01.12.2000 or not? The finding of learned Sessions Judge was that the accused-respondents remained in police custody till they were produced before learned Judicial Magistrate for recording their statements under Section 164 Cr.P.C., and were not sent to the judicial custody. Learned Sessions Judge has rightly pointed out that the Judicial Magistrate did not ensure that the accused-respondents were actually sent to the jail on 01.12.2000 after they were granted 14 days’ judicial remand by him. When the respondents were presented before learned Judicial Magistrate on 02.12.2000 for recording their statements under Section 164 Cr.P.C., he should have ensured that the accused-respondents, in fact, were coming from the jail. They (respondents) remained in the police custody (when their statements were recorded). No reliance can be placed upon such confessional statements, as has been held by Hon’ble Supreme Court in a catena of decisions, which have been referred to by the court below on page no. 12 of the impugned judgment. The confessional statement under Section 164 Cr.P.C. is not a substantive piece of evidence. The Magistrate was bound to ensure that the respondents were free from the influence of police, which fact was not ensured in the instant case. The fact remains that the respondents remained in police custody till 02.12.2000, i.e., the date on which their confessional statements were recorded. On papers they were in judicial custody, but factually, the respondents were in police custody. The respondents did not go to the jail till their statements under Section 164 Cr.P.C. were recorded by learned Magistrate. The fact remains that the respondents remained in police custody till 02.12.2000, i.e., the date on which their confessional statements were recorded. On papers they were in judicial custody, but factually, the respondents were in police custody. The respondents did not go to the jail till their statements under Section 164 Cr.P.C. were recorded by learned Magistrate. Such statements could not be relied upon and the respondents could not be convicted on the basis of such lackluster evidence. In other words, there was no material on record other than the confessional statements of the accused persons under Section 164 Cr.P.C. and those statements carried no force. Accused-respondents denied having given such statements. The Magistrate was required to devise that the confessional statements were voluntary, which was not done. Conscious effort was required to be made by learned Magistrate to ascertain that the respondents were not under pressure, which (effort) was not done. The prosecution story crumbled on the face of the fact that the respondents were in police custody when their confessional statements were recorded. In such a situation, learned court below has rightly acquitted the respondents of the charges which were framed against them. Recovery of empty bottle and thermocol glasses etc under Section 27 Evidence Act was also not believed by learned trial court. Learned trial court did not rely upon the prosecution version, for no unjust reason. 14. There is no scope of interference in the judgment rendered by the court below. Govt. Appeal is liable to be dismissed. The same is accordingly dismissed as against the accused-respondents Vasudev Singh and Deepak Kumar. 15. During the course of arguments, it was pointed out that the accused-respondent Jagmohan Singh died during the pendency of Govt. Appeal. The Government Appeal therefore, stands abated against the respondent Jagmohan Singh.