Research › Search › Judgment

Uttarakhand High Court · body

2012 DIGILAW 749 (UTT)

Mahipal Singh v. State of Uttaranchal

2012-12-11

BARIN GHOSH, U.C.DHYANI

body2012
Judgment U.C. Dhyani, J. One Balbir Singh s/o Bhupal Singh r/o village Lasi, Police Station and District Chamoli wrote a complaint to Station Officer, Police Station Chamoli on 06.04.2003, regarding the killing of Avtar Singh by Mahipal Singh and Jodh Singh. Balbir Singh lodged the report on being informed about the incident to him by one Hukam Singh, who was charge sheeted (as an accused) after the investigation. 2) On 06.04.2003, DW2 Hukam Singh s/o Moli Singh r/o village Lasi told DW1 Balbir Singh that on 05.04.2003, at 10:30 P.M., Mahipal Singh s/o Gaje Singh and Jodh Singh s/o Digpal Singh beat Avtar Singh alias Guddu s/o Bhupal Singh with sticks. DW2 Hukam Singh tried to intervene, but Mahipal Singh and Jodh Singh beat him (DW2) also and threw DW2 in the bush. DW2 Hukam Singh sustained injuries in the scuffle. When DW2 Hukam Singh came back to the place where Avtar Singh was beaten up, he found that Mahipal Singh and Jodh Singh had killed Avtar Singh. The dead body of Avtar Singh was dumped at a place situated nearby. Mahipal Singh and Jodh Singh warned Hukam Singh not to disclose the incident to anyone, or else, he should face the consequences. On the basis of said complaint, chik FIR (Ext. Ka-3) was registered in Police Station Chamoli on 06.04.2003, at 03:15 P.M. The incident was alleged to have taken place on 05.04.2003 at 10:30 P.M. The distance between the place of occurrence and the police station was 10 km. hence, there appeared to be no delay in lodging the first information report. On the basis of said FIR, which was registered as Case Crime No. 51 of 2003 under Section 302 of IPC and Section 201 of IPC, investigation began. PW8 S.I. Indra Pal Singh was assigned the task of investigating the case. On 06.04.2003, at 11:30 P.M., PW8 S.I. Indra Pal Singh proceeded to the place of incident. When he reached the place where the dead body of the victim was lying, the people standing there informed PW8 that the same might be the territorial jurisdiction of Patwari. Patwari disclosed to PW8 that the case was to be investigated by regular police. On being satisfied that the investigation was to be done by the regular police, PW8 took the dead body in his possession and prepared inquest report (Ext. Ka-7). He also prepared related papers Ext. Patwari disclosed to PW8 that the case was to be investigated by regular police. On being satisfied that the investigation was to be done by the regular police, PW8 took the dead body in his possession and prepared inquest report (Ext. Ka-7). He also prepared related papers Ext. Ka-8 and Ext. Ka-9. He sent the dead body for postmortem. PW8 took the statements of DW2 Hukam Singh and PW2 Bachan Singh on 07.04.2003. He also prepared site plan (Ext. Ka-12). Investigating Officer also made a search for the named accused persons, but they were not found at their houses. On the pointing of DW2 Hukam Singh, accused persons Mahipal Singh and Jodh Singh were arrested, arrest memos (Ext. Ka-13 and Ext. Ka-14) whereof were prepared. When the statements of accused persons were recorded, they confessed their guilt and also offered to disclose the place where the stick, by which the victim was beaten, was concealed. On 08.04.2003, PW8 recorded the statements of Bhawan Singh and Smt. Subhaga Devi. On 09.04.2003, PW8 recorded the statement of PW1 Dr. R.K. Sundriyal. On 10.04.2003, accused Hukam Singh (DW2) was arrested and the arrest memo (Ext. Ka-15) of the same was prepared. The stick used in the commission of crime was recovered on the disclosure and pointing of accused Mahipal Singh, a recovery memo (Ext. Ka-6) whereof was prepared. On 11.04.2003, Mahipal Singh was medically examined and was sent to jail. On 18.04.2003, site plan (Ext. Ka-17) of the place where the dead body was found was prepared. On 20.04.2003, the statements of some witnesses were taken. On 21.04.2003, statement of PW3 Vilok Singh and other witnesses were recorded. On 04.05.2003, PW8 submitted charge sheet (Ext. Ka-18) against the accused persons Mahipal Singh, Jodh Singh and Hukam Singh. 3) When the trial began and prosecution opened it’s case, charges for the offences punishable under Section 302 of IPC and Section 201 of IPC were framed against the accused persons namely, Mahipal Singh, Jodh Singh and Hukam Singh, to which they pleaded not guilty and claimed trial. It may be pointed out at this stage that informant Balbir Singh was not examined on behalf of prosecution; instead he got himself examined as DW1. Eight witnesses were examined on behalf of the prosecution. They were – PW1 Dr. It may be pointed out at this stage that informant Balbir Singh was not examined on behalf of prosecution; instead he got himself examined as DW1. Eight witnesses were examined on behalf of the prosecution. They were – PW1 Dr. R.K. Sundriyal, PW2 Bachan Singh, PW3 Vilok Singh, PW4 Nain Singh, PW5 Constable Kailash Chandra Lakhera, PW6 Shishu Pal Singh, PW7 Kedar Singh and PW8 S.I. Indra Pal Singh. Incriminating evidence was put to the accused persons under Section 313 of Cr.P.C., in reply to which they said that they were falsely implicated in the case. Accused Hukam Singh said in his statement under Section 313 of Cr.P.C. that he was implicated because the police was annoyed with him. He admitted in response to questions no. 9 and 10 that Mahipal Singh and Jodh Singh were arrested in his presence. Both of them confessed their guilt. Mahipal Singh offered to show the place where the stick, by which Avtar Singh was killed, was concealed. Accused Hukam Singh also said that the stick was disclosed on the disclosure and pointing of accused Mahipal Singh, a recovery memo whereof was prepared. He further stated that he too was present with the police when the said recovery was made. He admitted many a facts which pertained to the accused Mahipal Singh and Jodh Singh. He (Hukam Singh) offered to examine himself in defence and got himself examined as DW2. Accused Mahipal Singh denied all the allegations in his statement under Section 313 of Cr.P.C. He said that he had no enmity with Avtar Singh (victim) or PW8 Indra Pal Singh. The third accused Jodh Singh also, in his statement under Section 313 of Cr.P.C., denied the allegations levelled against him. He said that he had no enmity either with DW1 Balbir Singh or Nain Singh or PW8 S.I. Indra Pal Singh. DW1 Balbir Singh and DW2 Hukam Singh were examined in defence. After considering the evidence on record, learned trial court exonerated accused Hukam Singh of the charges levelled against him, but convicted accused persons Mahipal Singh and Jodh Singh for the offences punishable under Section 302 of IPC and Section 201 of IPC and were sentenced appropriately. Aggrieved against the order of conviction and sentence, present criminal appeal was preferred. 4) When the postmortem on the dead body of the deceased was conducted by PW1 Dr. Aggrieved against the order of conviction and sentence, present criminal appeal was preferred. 4) When the postmortem on the dead body of the deceased was conducted by PW1 Dr. R.K. Sundriyal, he found the following ante mortem injuries on dead body of the victim: i) Laceration over right parietal bone 2 cm x 2 cm with clotted blood over it. ii) Swelling on face, eyelids with bleeding from nose and mouth. iii) Depressed bruise forehead 10 cm x 2 cm just above both eyebrows. iv) Abrasion right forearm, dorsum of right wrist 3 cm x 4 cm with clotted blood. v) Abrasion dorsum of right hand 3 cm x 4 cm. vi) Abrasion dorsum of left forearm 9 cm x 6 cm. vii) Abrasion left side of chest over the 9th rib 4 cm x 2 cm. left lateral side. viii) Longitudinal bruise upper back between scapula 9 cm x 2 cm. ix) Abrasion lower back 13 cm x 13 cm with peeling of skin. x) Abrasion right thigh posterior aspect 5 cm X 5 cm with peeling of skin. xi) Abrasion right knee, anterior aspect with clotted blood 6 cm x 3 cm. xii) Abrasion on posterior aspect of left knee with clotted blood 9 cm x 5 cm. xiii) Abrasion left leg lower part anterior aspect 6cm x 3 cm with peeling of skin. 5) PW1 Dr. R.K. Sundriyal proved the postmortem report (Ext. Ka-1) and opined that the cause of death of victim was shock and haemorrhage as a result of ante mortem injuries. 6) PW2 Bachan Singh said that he owned a shop between Lasyari and Harmani. About two years ago, Bhawan Singh, Hukam Singh, Gajpal and Avtar Singh came in his shop at 07:00 P.M. They took liquor and had their meals in his shop. Around 08:00 P.M., Mahipal Singh and Vilok Singh came in PW2’s shop. They also took drinks and ate meat with Bhawan Singh and others. Jodh Singh and Shishu Pal Singh came around 09:00 P.M. After about 15-20 minutes, all of them proceeded together towards Laasi. In the cross-examination, he said that victim’s uncle was a practicing Advocate in Gopeshwar. Police Inspector reached on the place of incident at 08:30 A.M. All the people went there, but PW2 did not. Other questions were also asked to PW2, but the replies to those insignificant questions are not worth mentioning. In the cross-examination, he said that victim’s uncle was a practicing Advocate in Gopeshwar. Police Inspector reached on the place of incident at 08:30 A.M. All the people went there, but PW2 did not. Other questions were also asked to PW2, but the replies to those insignificant questions are not worth mentioning. Thus, PW2 was the witness of having last seen victim in the company of Mahipal Singh and Jodh Singh. 7) PW3 Vilok Singh said that on 05.04.2003, at 08:30 P.M., he alongwith Mahipal Singh came to the shop of PW2 Bachan Singh. Bhawan Singh, Gajpal, Hukam Singh, Avtar Singh etc. were taking drinks at the shop of PW2. At about 09:00 P.M., Shishu Pal Singh and Jodh Singh came to PW2’s shop. Jodh Singh was carrying a stick and a torch in his hands. Avtar Singh, Jodh Singh and Hukam Singh indulged in altercation with each other. Thereafter, PW3, Bhawan Singh, Ganda Singh, Shishu Pal Singh and Gajpal left the place. Avtar Singh, Mahipal Singh, Jodh Singh and Hukam Singh remained there. He expressed his inability to identify the stick, which was in the hands of Jodh Singh. Lastly, this witness said that Avtar Singh was found dead the next morning. Thus, PW3 was also a witness of having last seen the victim in the company of appellants. 8) PW4 Nain Singh was ploughing his field on 06.04.2003. He came to know that Avtar Singh alias Guddu was killed. PW4 also reached on the place of occurrence. An information to this effect was given by PW4 Nain Singh to PW6 Shishu Pal Singh at around 11-11:30 A.M. on the selfsame day. In the cross-examination, he said that Hukam Singh met him on the place of incident, but he did not disclose anything regarding the incident. PW5 Constable Kailash Chandra Lakhera was a formal witness. 9) PW6 Shishu Pal Singh said that on 05.04.2003, at 08:00 P.M., when Hukam Singh, who used to commute everyday to Chamoli, did not come back, he (PW6) went to Hukam Singh’s house to enquire about him, but he was not found there. Hukam Singh used to bring milk for PW6. PW6 and Jodh Singh then went to see Hukam Singh in the shop of Bachan Singh. Jodh Singh was carrying stick and torch. Hukam Singh used to bring milk for PW6. PW6 and Jodh Singh then went to see Hukam Singh in the shop of Bachan Singh. Jodh Singh was carrying stick and torch. When PW6, alongwith Jodh Singh, reached the shop of PW2 Bachan Singh, they found PW2, Mahipal Singh and Hukam Singh, Vilok Singh, Ganda Singh, Avtar Singh, Gajpal and Bhawan Singh there. PW6 took the container containing milk. PW6 alongwith Bhawan Singh, Ganda Singh, Gajpal and Vilok left the shop of PW2. Hukam Singh, Jodh Singh, Avtar Singh and Mahipal Singh came from the shop later on. The next day, at around 11:00 A.M., PW6 came to know that Avtar Singh was killed. PW6 also went to the place where the dead body of Avtar Singh was lying. In the cross-examination, PW6 said that no altercation took place between any of the people present in the shop of PW2 in his presence. 10) PW7 Kedar Singh was the witness of recovery of stick (Mat. Ext. 2) on the disclosure and pointing of accused-appellant Mahipal Singh, a recovery memo (Ext. Ka-6) whereof was prepared. 11) Learned trial court convicted the accused-appellants only on the basis of their having last seen with the victim and also on the basis of recovery of stick, which was used in the commission of crime. Although, learned trial court said that accused-appellants were in inimical terms with the victim, but no evidence to this effect was brought on record by any of the prosecution witnesses. It was a case of circumstantial evidence and as such the question of motive assumed importance. Had there been direct evidence, the things would have been otherwise. None of the prosecution witnesses said that any altercation or scuffle or quarrel took place between the accused-appellants and the victim in their presence. Even if one witness (PW3 Vilok Singh) said so (about the altercation), it was only as a matter of passing reference. When the motive to commit the murder was not brought to the fore, there was no evidence to the effect that the victim and accused-appellants had previous enmity and when there was no evidence to suggest that any quarrel took place between any of the people, who assembled in the shop of PW2, it was not proper on the part of learned court below to have found the accused-appellants guilty of the offence of murder of Avtar Singh. There was no evidence, what to talk of cogent evidence, against the accused-appellants. The prosecution has miserably failed to prove the case against the accused-appellants. The case of the accused-appellants meets the same fate, as that of Hukam Singh, who was exonerated by learned court below on the basis of the same evidence. In a nutshell, even if there was evidence in piecemeal of having last seen the victim in the company of the accused-appellants, there was no other evidence in support of fragile and weak ‘last seen’ evidence. Accused-appellants were not the only people who assembled at the shop of PW2. There were other people also. It was not safe to pinpoint the names of the accused-appellants in the murder of the victim and not to suspect anyone else (among those who were present at the shop of PW2). There was a possibility that someone else, and not the appellants, might be involved in the killing of Avtar Singh. 12) DW2 Hukam Singh kept mum until such time the FIR was filed by DW1 Balbir Singh. When Hukam Singh came to depose as DW2, he said that an altercation took place between the accused-appellants Jodh Singh, Mahipal Singh, on the one hand, and Avtar Singh alias Guddu, on the other hand. According to DW2, there was a dispute regarding non-payment of past dues. (It was the defence witness and not the prosecution witness, who has said so). DW2 said that Jodh Singh gave a blow of stick on the head of Avtar Singh. Mahipal Singh beat Avtar Singh with his shoes, which resulted into the death of the victim. The accused-appellants could not be held guilty and convicted on the basis of the evidence of DW2, who maintained silence, until such time the FIR was lodged by someone else (DW1), and not by him. DW2 himself was a suspect and charge sheeted accused in the alleged crime, although (he) was exonerated by learned court below. 13) There appears to be no need to multiply the deficiencies in the evidence tendered by the prosecution, and compound it’s miseries. Prosecution has not been able to prove it’s case against the accused-appellants beyond reasonable doubt. 14) The appeal preferred by the appellants is thus allowed. The conviction and sentence recorded by the trial court against the appellants Mahipal Singh and Jodh Singh is hereby set aside. Prosecution has not been able to prove it’s case against the accused-appellants beyond reasonable doubt. 14) The appeal preferred by the appellants is thus allowed. The conviction and sentence recorded by the trial court against the appellants Mahipal Singh and Jodh Singh is hereby set aside. They are acquitted of the charges levelled against them. The appellants are on bail. Their bail bonds are cancelled and sureties stand discharged. They need not surrender. 15) Let a copy of the judgment be sent to the Court below. Let lower court record be also sent back.