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2012 DIGILAW 785 (UTT)

Sunita v. State of Uttaranchal

2012-12-19

BARIN GHOSH, U.C.DHYANI

body2012
Judgment U.C. Dhyani, J. One Vikram Singh Bhandari, owner of Neelkanth Lodge, lodged a complaint (Ext. Ka-3) in Police Station Laxman Jhoola, on 23.05.2005, that a tour party comprising of four male members, two female members and two children came to his Lodge in the evening of 21.05.2005 and hired two rooms for night stay. The first room was booked in the name of Tejender Singh r/o District Ludhiyana (Punjab). This tour party, which was headed by Tejender Singh left the hotel in the morning of 22.05.2005. Since the payment was made, therefore, the caretaker of the hotel did not take notice of the fact that they (visitors) have checked out. In the morning of 23.05.2005, at about 4:00 a.m., informant Vikram Singh Bhandari sent one of his employee Rajpal Bharadwaj in room no. 08 for ensuring water supply in the said room. Rajpal Bharadwaj found a dead body of a member of the tourist party in room no. 08. He found that there were injuries on the head of the tourist. His feet were tied. It was suspected that the victim was killed by Tejender Singh and his companions. On the basis of said complaint, chik FIR (Ext. Ka-11) was lodged in P.S. Laxman Jhoola on 23.05.2005 at 7:30 a.m., which was registered as case crime no. 170 of 2005 for the offence punishable under Sections 302/201 IPC. Incident was alleged to have taken place in the intervening night of 21/22.05.2005. The distance between the place of occurrence and PS concerned was only 24 kilometers, hence there appeared to be some delay in lodging the first information report. 2. Investigation began on the basis of said first information report. PW 8 Jawahar Lal took over the investigation of the case, inspected the place of occurrence, took the statements of the witnesses, affected arrest of the accused, prepared site plan and after being satisfied with the fact that the accused committed the offence, a charge-sheet (Ext. Ka-25) for the offences punishable under Sections 302/201 IPC was submitted against the accused-appellants. [It appears that some of the co-accused were absconding and therefore, their case was separated from the case of accused-appellants]. Ka-25) for the offences punishable under Sections 302/201 IPC was submitted against the accused-appellants. [It appears that some of the co-accused were absconding and therefore, their case was separated from the case of accused-appellants]. When the trial began and 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 persons, namely, Atar Singh, Jagdish Dhingra, Smt. Rajesh and Smt. Sunita, to which they pleaded not guilty and claimed trial. As many as 10 prosecution witnesses, namely, PW 1 Nanak Chand Ahuja, PW Pawan Kumar, PW 3 Vikram Singh Bhandari, PW 4 Sikandar, PW 5 Dhan Singh, PW 6 Vidya Bhushan Singh Negi, PW 7 HC Chandan Singh, PW 8 Dr. P.K. Bhatnagar and PW 10 Naushad Anasri were examined on behalf of prosecution. Incriminating evidence was put to the accused persons under Section 313 Cr.P.C., in which they denied the allegations and said that they were falsely implicated in the case. No evidence was given in defence. 3. After considering the evidence on record, learned trial court convicted accused-appellants Atar Singh, Smt. Rajesh, Smt. Sunita and Jagdish Dhingra for the offences punishable under Section 302 IPC and Section 201 IPC. They were sentenced to undergo imprisonment for life and a fine of Rs. 5000/- in connection with the offence punishable under Sections 302/34 IPC. They were sentenced to undergo rigorous imprisonment for three years and a fine of Rs. 2,000/- in connection with offence punishable under Sections 201/34 IPC. Aggrieved against the order of conviction and sentence, present criminal appeal was preferred. 4. The autopsy on the dead body of the deceased was conducted by the Medical Officer PW 9 Dr. P.K. Bhatnagar, who proved the postmortem report (Ext. Ka -26) and said that cause of death of victim could not be ascertained, hence viscera was preserved. The Forensic Science Laboratory in it’s report dated 10th November, 2005 (Ext. Ka 33) did not find any poisonous substance in any part of viscera i.e. stomach, intestine, liver, kidney or spleen. Thus, neither any external injury nor internal injury was sustained by the victim. Possibility of administering the poison was also ruled out in view of Ext. Ka -33. 5. Ka 33) did not find any poisonous substance in any part of viscera i.e. stomach, intestine, liver, kidney or spleen. Thus, neither any external injury nor internal injury was sustained by the victim. Possibility of administering the poison was also ruled out in view of Ext. Ka -33. 5. PW 1 Nanak Chand Ahuja was the father of the deceased; PW 2 Pawan Kumar was the brother-in-law of the deceased; PW 3 Vikram Singh Bhandari was the owner of Neelkanth Lodge; PW 4 Sikandar was an employee of the Lodge and PW 5 Dhan Singh Rana was a signatory to inquest report (Ext. Ka -5). PW 6 SI Vidya Bhushan Singh Negi, PW 7 HC Chandan Singh, PW 8 SI Jawahar Lal and PW 10 Constable Naushad Ansari were the formal witnesses. As has been said earlier that PW 9 Dr. P.K. Bhatnagar could not assign any reason for the death of victim. When the statements of the accused persons were recorded under Section 313 Cr.P.C., they all admitted that Rakesh alias Raju (deceased) was the resident of Manmohan Nagar, Ambala City. The accused persons stated that the police arrested them on 31.05.2005 from their houses at Ambala. This was not a case of direct evidence. It will have to be seen on the basis of circumstances deposed by the prosecution witnesses, whether the chain of circumstances in this case is so complete that the accused persons can be held guilty of the charges framed against them? 6. PW 1 Nanak Chand Ahuja, who was father of the deceased, raised accusing finger at his daughter-in-law Smt. Rajesh and said that she was having extra marital relations with other people. One Dheengra and Harjindr Pal used to visit her. When the victim objected to the same, the relations of husband and wife became strained. Accused Smt. Sunita was the sister of Smt. Rajesh and accused Atar Singh was the husband of Smt. Sunita. On 20.05.2005, all of them interacted with Rakesh (victim) and Smt. Rajesh (wife of victim), they chalked out a tour programme and went to see various places in district Pauri Garhwal. When they came back on 22.05.2005, Rakesh was not with them. When PW 1 enquired about Rakesh, it was told that he had gone to Gujarat. Different version came from other accused, who said that Rakesh had gone to Ganga Nagar. When they came back on 22.05.2005, Rakesh was not with them. When PW 1 enquired about Rakesh, it was told that he had gone to Gujarat. Different version came from other accused, who said that Rakesh had gone to Ganga Nagar. PW 1 came to know of the death of victim through newspaper. When PW 1 disclosed this news to Smt. Rajesh, she was indifferent. PW 1 then lodged a report in PS Laxman Jhoola suspecting that the victim was killed by the accused-appellants. 7. PW 2 Pawan Kumar, who was the maternal uncle of deceased, accompanied PW 1 Nanak Chand while making a search for the deceased. PW 2 said that the accused appellants were seen at the railway station of Yamuna Nagar in the night of 20.05.2005. PW 3 Vikram Singh Bhandari, who was the owner of Neelkanth Lodge, said that on 21.05.2005, at 4:00 p.m., a tourist party came to his Lodge and got room nos. 7 & 8 booked for them. PW 3 also deposed that the deceased was staying with the tourist party. When one of the employee of the Lodge went in room no. 8 to find out the supply of water, he found the dead body of the victim, and thereafter, the matter was reported to the police. PW 4 Sikandar was also a worker of Neelkanth Lodge. PW 4 also spoke in the same terms, in which his predecessor (PW 3) in the witnessbox said. 8. Neither the owner of the Lodge nor the worker of the Lodge pinpointed the identity of the appellants. The documents relating to their (appellants’) stay in the hotel were not evidenced. PW 3 and PW 4 only spoke about the victim and said that the victim was a member of the tourist party, who stayed in room nos. 7 & 8 of the Lodge. Who were they, besides the victim, was not known, in as much as, the rooms were booked only in the name of one Tejender Singh, who was not the appellant. PW 1 simply said that a programme was chalked out in his presence. Whether the appellants, in fact, joined the victim and stayed in Neelkanth Lodge was not established. 9. Even if the evidence of the witnesses cited above be treated as gospel truth, there was no evidence to indicate that the accused -appellants committed the murder of victim. PW 1 simply said that a programme was chalked out in his presence. Whether the appellants, in fact, joined the victim and stayed in Neelkanth Lodge was not established. 9. Even if the evidence of the witnesses cited above be treated as gospel truth, there was no evidence to indicate that the accused -appellants committed the murder of victim. The case cannot be decided on the basis of conjectures and surmises. The chain of the circumstances was not complete. Although accusing finger was raised at accused- appellants, but the suspicion cannot take place of the proof. When there was no homicide, how can be it said that the accused –appellants committed the homicide? The medical evidence has demolished the entire prosecution story, in as much as, no external or internal injury was found in the autopsy, the cause of death could not be ascertained, viscera was preserved and Forensic Science Laboratory reported that no poisonous substance was found in the viscera of the victim. The conviction awarded by the learned court below cannot sustain in view of the facts and circumstances as enumerated above. Appeal deserves to be allowed. 10. Appeal preferred on behalf of the appellants Smt. Sunita, Atar Singh, Smt. Rajesh and Jagdish Dhingra is therefore allowed. The judgment and order dated 15.09.2005 passed by learned trial court is accordingly set aside. The conviction recorded in respect thereof and sentence thus awarded are also set aside. Appellants Smt. Sunita and Jagdish Dhingra are on bail. Their bail bonds are cancelled and sureties are discharged. They need not surrender. Appellants Smt. Rajesh and Atar Singh are in jail. They be set at liberty forthwith, if not required to be detained in any other case. An information to this effect be sent to the Superintendent of Jail where the appellants Smt. Rajesh and Atar Singh are currently serving out the sentence. Let a copy of the Judgment be sent to the court concerned for compliance. Lower court record be also sent back.