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2013 DIGILAW 129 (UTT)

CHINTAMANI NARIYAL v. STATE OF UTTARAKHAND

2013-03-13

Alok Singh, Barin Ghosh

body2013
JUDGMENT Per: Hon’ble Alok Singh, J. 1. Appellant, by way of present appeal, is assailing the judgment and order dated 05.02.2008/07.02.2008 passed by Sessions Judge, Champawat whereby the appellant was convicted and sentenced to undergo life imprisonment and to pay fine of Rs. 25,000/-, failing which to further undergo two year imprisonment under Section 302 IPC. 2. Brief facts of the present case, inter alia, that appellant lodged an FIR with police station Kotwali, Champawat on 06.10.2004 to the effect that in the evening of 05.10.2004 at about 6-7 p.m., he found his son Naveen lying injured in the village Khetar Nariyal; it seems that he was assaulted by some sharp edged weapon; his son Naveen came back from school at about 03.00 p.m. and thereafter, took oxen at about 04.00 p.m. for grazing purpose and informant appellant also took out his buffaloes for grazing and offering water purpose from Goshala; after about 30 – 45 minutes, appellant came back to Goshala along with buffaloes and thereafter, went back to home, at about 06.00 p.m. appellant again came to Goshala and noticed that oxen were grazing in the field, however, his son was not there; wife of appellant informed the appellant that Naveen did not come back after grazing the oxen, thereafter, appellant and other people searched for Naveen and found him injured lying about 100 – 150 metre away from Goshala. Appellant brought Naveen to the Government Hospital, Champawat, where doctors declared him brought dead. 3. Having registered the FIR, police started the investigation of the matter and thereafter, filed a charge-sheet against the informant / appellant for the offences punishable under Section 302, 201 IPC. 4. Learned trial Judge, after committal of the case, was pleased to frame charges against the appellant for the offences punishable under Section 302, 201 IPC. 5. Learned trial Judge, having perused material available on the record and the statements of PW1 to PW15, found appellant guilty for the offence punishable under Section 302 IPC and was pleased to convict and sentence him, as mentioned hereinabove. Feeling aggrieved, present appeal has been preferred by the appellant. 6. We have heard Mr. Manish Arora, learned Amicus Curiae for the appellant as well as Mr. A.S. Gill, Sr. Government Advocate assisted by Mr. Vipul Painuly, AGA for the State and carefully perused the record. 7. There is absolutely no eyewitness of the murder of Naveen. Feeling aggrieved, present appeal has been preferred by the appellant. 6. We have heard Mr. Manish Arora, learned Amicus Curiae for the appellant as well as Mr. A.S. Gill, Sr. Government Advocate assisted by Mr. Vipul Painuly, AGA for the State and carefully perused the record. 7. There is absolutely no eyewitness of the murder of Naveen. As per the postmortem report and statement of Dr. H. S. Khadayat (PW12), zygomatic and parietal bones of Naveen were found fractured. He noticed that there were three lacerated wounds and he opined that cause of death was internal bleeding in the brain and ante mortem injuries. 8. Statement of PW3 Girish Chandra Nariyal seems to be the basis of conviction and sentence against the accused appellant. PW3 has stated that he was village pradhan and police recorded statement of Manju Devi, daughter-in-law of appellant, in his presence on 07.10.2004. Smt. Manju Devi, in the presence of PW3, her mother-in-law Kamla Devi and appellant, has stated that her husband Kailash Chandra, left the house for Nagpur, after about 1 or 1 ½ month from their marriage, therefore, she had developed illicit relations with her father-in-law and brother-in-law i.e. appellant and deceased Naveen respectively; one night appellant saw her in compromising position with Naveen, therefore, appellant scolded both of them. Having scolded by appellant, Naveen told her that he would kill his father i.e. appellant and she has narrated the same to the appellant; 6-7 days, thereafter, on the fateful day, Naveen and appellant took their cattle for grazing purposes; after the sunset, appellant came back and told to his wife that he had killed his son. 9. In the present case, Manju Devi, wife of Kailash Chandra, daughter-in-law of appellant, who has allegedly made statement regarding illicit relations with her father-in-law as well as brother-in-law, was never produced in the witness box. Prosecution by producing PW3 wanted to prove the extra judicial confession made by appellant to his wife in the presence of Manju Devi. Neither wife of appellant nor Manju was produced to prove the alleged extra judicial confession made by the appellant. Therefore, alleged extra judicial confession made by the appellant to his wife in the presence of his daughter-in-law i.e. Manju Devi cannot be said to have been proved. Neither wife of appellant nor Manju was produced to prove the alleged extra judicial confession made by the appellant. Therefore, alleged extra judicial confession made by the appellant to his wife in the presence of his daughter-in-law i.e. Manju Devi cannot be said to have been proved. Prosecution story that Manju Devi has confessed to the police in presence of PW3 that she had illicit relations with her father-in-law and brother-in-law seems to be highly improbable. Entire statement made by PW3 does not inspire confidence at all. Not only this, statement of PW9 to the effect that he had seen Naveen and the appellant grazing their cattle in the same Tola, near Goshala on the fateful evening, is also of no help to the prosecution, for the reason, that this is the case of appellant before the police that he and his son took their respective cattle for grazing and offering water purposes, however, he came back but Naveeen did not return and thereafter, on search his dead body was recovered. 10. In the above conspectus, we are unable to uphold the reasonings and findings recorded by the trial judge. In our firm opinion, prosecution has miserably failed to prove prosecution story, so we have no other option except to set aside the impugned judgment and order. Accordingly, the appeal is allowed. Judgment and order dated 05.02.2008 & 07.02.2008 passed by Sessions Judge, Champawat are hereby set aside. Appellant stands acquitted. Appellant is on bail. He need not to surrender in the court below in the present case. His personal bond and sureties are discharged. 11. Let a copy of this judgment be sent to the court below for compliance. Lower court record be sent back forthwith.