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Uttarakhand High Court · body

2012 DIGILAW 99 (UTT)

Kharak Singh v. State of Uttaranchal

2012-03-02

BARIN GHOSH, U.C.DHYANI

body2012
BARIN GHOSH, C.J.— (Oral) These two appeals have been preferred against the same judgment and order, whereby appellant in CRLA No. 253/2002, and respondents in GA No. 18/2003 were charged of having committed murder of Hari Singh. 2. Heard learned counsel for the parties. 3. Mrs. Pushpa Joshi, Senior Advocate is appearing on behalf of appellant in CRLA No. 253/2002. She is not appearing on behalf of respondents in GA No. 18/2003. After service of notice upon the respondents in GA No. 18/2003, the said respondents entered appearance through Mr. G.B. Pandey, Advocate, who is no more. In the circumstances, it was a requirement on the part of the court to issue an administrative notice to the respondents in the said appeal. However, having heard learned counsel appearing in support of CRLA No. 253/2002 and the learned Addl. Government Advocate and, considering the materials on record, the court is of the view that Government Appeal No. 18 of 2003 is merit less and, accordingly, no administrative notice is required to be sent to the respondents in GA No. 18/2003. 4. At 09:40 A.M. of 28th November 2000, the brother of the deceased, P.W.1, lodged a General entry with the concerned police station stating that the deceased left home on 27th November 2000, where after he did not return home and, his dead body has been found at the place mentioned in the said GD entry and, accordingly, he is making the said General entry. In view of the said GD entry, police went to the locality, prepared inquest report and, thereupon sent the dead body for postmortem. Postmortem was conducted at 04:30 P.M. on 28th November 2000. In the postmortem report it was reported that the deceased received several injuries in his head, which caused his death. Thereafter, at 21 hours i.e. at 09:00 P.M. of 28th November 2000, a FIR was lodged by P.W.1, whereby statements, as were recorded in the GD entry, were repeated, but it was insinuated that the death was homicidal in nature. It was stated that the names and particulars of the persons responsible for the homicide would be furnished later. This FIR led to investigation, where after, a charge sheet was filed alleging an offence punishable under Section 302 I.P.C. has been committed by the appellant in CRLA No. 253/2002. It was stated that the names and particulars of the persons responsible for the homicide would be furnished later. This FIR led to investigation, where after, a charge sheet was filed alleging an offence punishable under Section 302 I.P.C. has been committed by the appellant in CRLA No. 253/2002. In course of trial, some of the prosecution witnesses alleged involvement of the respondents in GA No. 18/2003, with the subject homicide and, accordingly, under Section 319 of the Criminal Procedure Code, they were also accused of the same offence. At the trial, to prove the contention that the accused persons were involved with the homicide, the prosecution principally relied upon the evidence of P.W.1, P.W.2 and P.W.3. According to P.W.1, he met P.W.2 and P.W.3 in the evening of 27th November 2000, when he gathered from P.W.2 and P.W.3 that the deceased had accompanied P.W.2 and P.W.3 to the market and, after having had completed the work at the market they were returning, when some friends not known to P.W.2 and P.W.3 took the deceased away. P.W.2 and P.W.3 in their evidence stated that while returning from the market on 27th Novemebr 2000, the deceased was taken by the appellant in CRLA No. 253/2002, holding out that he is taking the deceased for committing murder of the deceased. P.W.2 and P.W.3 stated in their evidence that the respondents in GA No. 18/2003 were standing close by, when appellant in CRLA No. 253/2002 was taking the deceased for committing his murder. Believing the evidence of P.W.2 and P.W.3 that, the appellant in CRLA No. 253/2002 took hold of the deceased, while the deceased and the P.W.2 and P.W.3 were returning from market, the learned court below felt that appellant in CRLA No. 253/2002 was last seen with the deceased and, accordingly, appellant in CRLA No. 253/2002 was obliged/duty bound to disclose what happened since the time he was in company of the deceased and, the same having not been stated, the appellant in CRLA No. 253/2002 failed to discharge his obligation on that score and, on that basis convicted him. The respondents in GA No. 18/2003 were exonerated, for the evidence on record, as tendered by P.W.2 and P.W.3, was that they were standing a few paces away when the appellant in CRLA No. 253/2002 was taking the deceased for committing his murder and, accordingly, there is no evidence that the respondents in GA No. 18 of 2003 were also last seen with the deceased. 5. The short question, therefore, in these appeals is, whether the evidence of P.W.2 and P.W.3 in the facts and circumstances of the case, could at all be accepted. It is the specific case of P.W.2 and P.W.3 that they met P.W.1 on 27th November 2000, after appellant in CRLA No. 253/2002, had taken the deceased holding out that he is taking the deceased for committing his murder. P.W.1 has also stated in his evidence that he met P.W.2 and P.W.3 on 27th November 2000, when according to P.W.1, P.W.2 and P.W.3 had held out to P.W.1 that the deceased was taken away by some of his friends, who are not known to them. The logical conclusion would be that P.W.1 was telling the truth and, not P.W.2 and P.W.3. If P.W.2 and P.W.3, as deposed in the court, had seen appellant in CRLA No. 253/2002 taking the deceased away, they would have said so to P.W.1 and, then the P.W.1 would have said so in his evidence. P.W.2 and P.W.3 stated in their evidence, that appellant in CRLA No. 253/2002 took the deceased away holding out that he is taking the deceased for committing murder of the deceased, if that statement is true, then they would have stated the same also to P.W.1 in the evening of 27th November 2000, and in such circumstances, the P.W.1 would have immediately gone for looking for the deceased and, would have also stated so, at 09:40 A.M. on 28th November, 2000 while recording the GD Entry and, in any case, at 09:00 P.M. on 28th November, 2000 while lodging the FIR, to the police. He did not do so. In the circumstances, the logical conclusion would be that what P.W.1 had stated in his evidence could only be accepted and, the evidence of P.W.2 and P.W.3 to the effect that they saw the appellant in CRLA No. 253/2002 taking the deceased holding out that he is taking the deceased for committing his murder, is totally unacceptable. In the circumstances, the logical conclusion would be that what P.W.1 had stated in his evidence could only be accepted and, the evidence of P.W.2 and P.W.3 to the effect that they saw the appellant in CRLA No. 253/2002 taking the deceased holding out that he is taking the deceased for committing his murder, is totally unacceptable. In the circumstances, we interfere with the judgment and order under appeal to that extent by which the appellant in CRLA No. 253/2002 has been convicted. The same is set aside. Appellant in CRLA No. 253/2002 is on bail. His bail bond is cancelled and sureties are discharged. He need not surrender. For the reasons already indicated above that there is no reason to accept the evidence of P.W.2 and P.W.3, the Government Appeal fails and, the same is dismissed. Let a copy of this order be sent to the court below along with lower court record. _