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2012 DIGILAW 775 (UTT)

Narendra Pundir v. State of Uttaranchal

2012-12-18

BARIN GHOSH, U.C.DHYANI

body2012
JUDGMENT U. C. Dhyani, J. : A missing report (Ext. Ka-1) was lodged by one Prem Chandra Barthwal to Station Officer, Police Station Lansdowne, District Pauri Garhwal on 08.08.2003 informing the police that his daughter Puja Barthwal, who was a student of Class XII, in Army School, was last seen near the staircase of the State Bank and, was not traceable since then. 2. On 15.08.2003, at 08:45 a.m., one Sanjeev, who was a driver of a jeep, informed the police of Police Station, Lansdowne that foul smell was coming from the Battle Craft Jungle. On this information, PW7 S.I. Syed Munawar Husain, Station Officer of Police Station, Lansdowne along with other police personnel came to the spot, which was situated at Lansdowne-Kotdwara Road. By that time, people in large number had gathered there. The police went to the slope of Battle Craft Range, where a naked dead body of a girl was lying beneath an oak tree. The girl was almost beheaded. The dead body was in a decomposed state. The father of the deceased, PW2 Prem Chandra Barthwal identified the dead body of his daughter with the aid of school shoes, socks, Army school tie and other wearing apparels. Inquest report (Ext. Ka-2) was prepared. The dead body was sent for autopsy. When the autopsy on the dead body of the victim was conducted on 15.08.2003, Medical Officer, PW4 Dr. M.P. Singh did not find any external ante mortem injury on the dead body of victim. PW4 Dr. M.P. Singh prepared post-mortem report (Ext. Ka-4). The cause of death could not be ascertained hence, viscera was preserved. The Forensic Science Laboratory, however, did not find any poisonous substance in the preserved viscera of the victim. The chemical examination report further stated that the bloodstains on iron rod (allegedly used in the commission of crime) were found disintegrated. 3. On 19.08.2003, at noon, when PW7 S.I. Syed Munawar Husain along with other police personnel were on patrol duty, while reaching near the battle craft, they noticed a person carrying a plastic bag. On seeing the police personnel, said person turned around and started walking with rapid strides. On being interrogated, the suspect disclosed his name as Narendra Pundir s/o Darban Singh. A country made 12 bore gun and five live cartridges of 12 bore were found in his possession. Two grenades and 41 live cartridges along with 200 gm. On seeing the police personnel, said person turned around and started walking with rapid strides. On being interrogated, the suspect disclosed his name as Narendra Pundir s/o Darban Singh. A country made 12 bore gun and five live cartridges of 12 bore were found in his possession. Two grenades and 41 live cartridges along with 200 gm. of explosive substance were also found from his possession. The accused could not show any licence to keep the same. A recovery memo (Ext. Ka-5) was prepared by the police in this regard. PW7 affected the arrest of the accused and prepared arrest memo (Ext. Ka-6) thereof. During the course of investigation, accused Narendra Pundir confessed his guilt regarding killing of Puja Barthwal and offered to disclose the place where the murder weapon (iron rod), school bag and skirt of the victim were kept by him. The accused took the police party along with the brother of the deceased and other villagers to the place where incriminating articles were kept. A school bag, books, exercise notebooks, geometry box, handkerchief, skirt of the victim and iron rod (which was allegedly used in the commission of crime) were found on the disclosure and pointing of the accused. The accused also showed the place where he made an attempt to commit rape with the victim. During inspection, a gray coloured wallet belonging to the accused Narendra Pundir, covered with leaves, was recovered from the place of incident. On opening the same, a coloured photo of the accused and a certificate of permanent residence of the accused were found inside. After interrogating the witnesses and on completion of the investigation, separate charge-sheets in connection with offences punishable under Section 302/201 of IPC and Section 376/511 of IPC, Section 25 of the Arms Act and Section 3/5 of Explosive Substance Act were submitted against the accused Narendra Pundir. 4. When the trial began and prosecution opened it's case, charges in relation to same offences were framed against the accused, to which he pleaded not guilty and claimed trial. Seven prosecution witnesses, namely, PW1 Prem Chandra Barthwal, PW2 Vimal Barthwal, PW3 Deepak Rawat, PW4 Dr. M.P. Singh, PW5 S.I. Jawahar Lal, PW6 S.I. Yogendra Singh and PW7 S.I. Syed Munawar Husain were examined on behalf of the prosecution. Seven prosecution witnesses, namely, PW1 Prem Chandra Barthwal, PW2 Vimal Barthwal, PW3 Deepak Rawat, PW4 Dr. M.P. Singh, PW5 S.I. Jawahar Lal, PW6 S.I. Yogendra Singh and PW7 S.I. Syed Munawar Husain were examined on behalf of the prosecution. Incriminating evidence was put to the accused under Section 313 of Cr.P.C., in reply to which he said that he was falsely implicated in the case and he was arrested from his residence. No evidence was adduced in defence. After considering the evidence on record, learned court below convicted accused Narendra Pundir for the offences punishable under Section 302 / 201 of IPC, Section 376 / 511 of IPC, Section 25 of the Arms Act and Section 3 / 5 of Explosive Substance Act. The convict was sentenced to imprisonment for life along with a fine a Rs. 5,000/- for the offence punishable under Section 302 of IPC. He was further sentenced to undergo rigorous imprisonment for a period of five years and a fine of Rs. 2,000/- in respect of offence punishable under Section 201 of IPC. The convict was also sentenced to imprisonment for a period of seven years in respect of offences punishable under Section 376 / 511 of IPC. In respect of offence punishable under Section 25 Arms Act, the convict was sentenced to rigorous imprisonment for a period of two years and also a fine of Rs. 1,000/-. For the offence punishable under Section 3 / 5 of Explosive Substance Act, the convict was sentenced to rigorous imprisonment for a period of three years and a fine of Rs. 2,000/-. All the sentences were directed to run concurrently. Aggrieved against the order of conviction and sentence, present criminal appeal was preferred by the convict. 5. PW1 Prem Chandra Barthwal was the father of the deceased, who lodged the missing report of his daughter. PW2 Vimal Barthwal was the brother of the deceased, who was the witness of recovery of school bag and skirt etc. of the victim. PW3 Deepak Rawat was the witness before whom the accused made extra judicial confession and PW4 Dr. M.P. Singh was the Medical Officer, who conducted the autopsy on the dead body of the victim. PW5 S.I. Jawahar Lal, PW6 S.I. Yogendra Singh and PW7 S.I. Syed Munawar Husain were the part and parcel of the investigation of the case. 6. PW3 Deepak Rawat was the witness before whom the accused made extra judicial confession and PW4 Dr. M.P. Singh was the Medical Officer, who conducted the autopsy on the dead body of the victim. PW5 S.I. Jawahar Lal, PW6 S.I. Yogendra Singh and PW7 S.I. Syed Munawar Husain were the part and parcel of the investigation of the case. 6. So far as the evidence of PW2 Vimal Barthwal and PW3 Deepak Rawat were concerned, it may be said at the very outset that extra judicial confession is a weak type of evidence and conviction cannot sustain on the basis of such extra judicial confession alone. It was said by PW3 that the accused-appellant disclosed to him along with others that he (appellant) liked Puja (victim), but she did not give any credence to him. Out of such frustration, the accused-appellant, in order to commit rape with Puja, inflicted a blow of iron rod on her head. Then, the accused-appellant dragged the victim towards the bush, whereupon he tried to commit rape with her, but could not, because the victim died in the meanwhile. 7. In the instant case, the missing report was lodged on 08.08.2003. The dead body of victim was found on 15.08.2003 and the accused-appellant was arrested on 19.08.2003. An important piece of evidence against the accused-appellant was alleged recovery of his wallet from the place of incident. When the same was put to him, in his statement under Section 313 of Cr.P.C., the accused-appellant denied the same, in response to question No. 11. The said wallet allegedly contained the photograph and permanent residence certificate of the accused-appellant. A close scrutiny of recovery memo (Ext Ka-3) of the recovery of school bag, books, exercise notebooks, geometry box, skirt and handkerchief of the victim will reveal that such incriminating articles were found on the disclosure and pointing of the accused-appellant on 19.08.2003 inside the bush standing on the east-south of Battle Craft Range. The articles belonging to the victim were identified by PW2 Vimal Barthwal, brother of the victim. After the recovery of school bag etc., accused-appellant offered to disclose the place where the murder weapon (bloodstained iron rod) was kept concealed by him. The same was also got recovered behind the bush. The articles belonging to the victim were identified by PW2 Vimal Barthwal, brother of the victim. After the recovery of school bag etc., accused-appellant offered to disclose the place where the murder weapon (bloodstained iron rod) was kept concealed by him. The same was also got recovered behind the bush. Thereafter, the accused-appellant took the police party to a place where dead body of the victim was kept concealed by him (and was found on 15.08.2003 by PW7 and other police personnel). The Station Officer did not find bloodstains or blood trail on the ground or on the leaves, as probably due to heavy rains, the bloodstains might have washed out. While searching for blood trails, at a nearby place, the wallet of the accused-appellant was allegedly recovered. The distance between the place where the iron rod (murder weapon) was found on 19.08.2003 and the place where the dead body was found lying on 15.08.2003 was five meters. It was surprising that the incriminating articles were allegedly recovered on 19.08.2003 from the same place from where the dead body of the victim was found on 15.08.2003. While locating the dead body on 15.08.2003, did the police party not found the wearing apparels and exercise notebooks etc. which were lying in the open at the same place (or almost at the same place)? Why those incriminating articles escaped their notice on 15.08.2003? These exercise notebooks, uniform etc. were not hidden. These articles were not kept concealed. The same were lying in the open. Then why all these things were not seen by them on 15.08.2003? Why these things escaped notice of all concerned on 15.08.2003, when the dead body of the victim was found? In other words, the dead body (on 15.08.2003) and wearing apparels of the victim (on 19.08.2003) were recovered from the same place. In such a situation it was incumbent upon the police and other witnesses to have seen the wearing apparels (including books etc.) near the dead body on 15.08.2003 itself. It was difficult to conceive that the witnesses did not try to look around and find wearing apparels etc. of the victim on 15.08.2003 itself. It was not the case of the prosecution that the earth was dug up (meaning thereby the books and wearing apparels of the victim were not concealed). It was difficult to conceive that the witnesses did not try to look around and find wearing apparels etc. of the victim on 15.08.2003 itself. It was not the case of the prosecution that the earth was dug up (meaning thereby the books and wearing apparels of the victim were not concealed). In such a situation it was difficult to believe that the incriminating articles were found on the disclosure and pointing of the accused-appellant on 19.08.2003. Had the dead body been found at altogether different place from the place of recovery of books etc. of the victim, then the matter would have been different. But in the instant case, the place of recovery of everything was in close proximity with each other and a glance over the dead body would have automatically led to the recovery of school uniform and books etc. on 15.08.2003 itself. It was difficult to believe that such recovery was made on the disclosure and pointing of the accused-appellant, in the manner, as was indicated by the prosecution witnesses. 8. Further, the dead body was in decomposed state. It was impossible to make a statement whether the injuries were sustained by the victim or not? One question still remains unanswered, and that is how the police got the inkling that the accused-appellant was the likely suspect? It will be wrong on our part to presume that such inkling was on the basis of extra judicial confession made by the accused-appellant in presence of victim’s brother and other witnesses. Had the accused been so worried, the first thing which he would have done, was to make a search for his wallet, which was allegedly got recovered on 19.08.2003, i.e. after eleven days of filing of missing report and after four days of recovery of dead body of the victim. The chain of circumstances was thus not complete. When two views are possible on the basis of evidence on record, then the view leading to the innocence of accused should be accepted. The present case was solely based upon alleged recovery of incriminating articles on the disclosure and pointing out of the accused-appellant (coupled with weak extra judicial confession), which could not be proved by prosecution beyond reasonable doubt. The alleged recovery itself was doubtful. In such a situation, the appellant is liable to be given benefit of doubt. The judgment under appeal is interferrable. 9. The alleged recovery itself was doubtful. In such a situation, the appellant is liable to be given benefit of doubt. The judgment under appeal is interferrable. 9. The appeal deserves to be allowed. The same is, accordingly, allowed. The conviction and sentence recorded by the trial court against the accused-appellant Narendra Pundir is hereby set aside. He is acquitted of the charges levelled against him. Appellant is on bail. His bail bonds are cancelled and the sureties discharged. He need not surrender. Let lower court record be sent back. Appeal allowed.