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2013 DIGILAW 154 (UTT)

STATE OF UTTARAKHAND v. DHARMENDRA

2013-03-19

Alok Singh, Barin Ghosh

body2013
JUDGMENT Per: Hon’ble Alok Singh, J. 1. Judgment and order dated 21.05.2007 passed by Sessions Judge, Nainital in Sessions Trial No. 39 of 2005 is under challenge in the present appeal whereby learned Sessions Judge was pleased to acquit the respondent no. 2 for the offences punishable under Section 302, 394, 411 IPC as well as offence punishable under Section 3(1) of the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986) (hereinafter referred to as “the Gangster Act”) and was further pleased to acquit respondent no. 1 for the offence punishable under Section 302, 394 IPC as well as under Section 3(1) of the Gangster Act, however, convicted and sentenced the respondent no. 1 to undergo 3-year rigorous imprisonment and to pay fine of Rs. 10,000/- failing which to undergo three months additional simple imprisonment for the offence under Section 411 IPC. 2. Brief facts of the case are that PW1 Suresh Pal, informant, lodged an FIR with the police station Ramnagar to the effect that in the evening of 25.06.2005 at about 08.00 p.m. his son Rahul went along with Kamal respondent no. 2 on motorcycle bearing no. UA 04 B 9612; after reaching near the school gate two other boys and one girl met them; thereafter, accused Kamal was sent back, however, Rahul proceeded ahead in the company of those two boys and girl and on being asked Kamal was unable to answer as to where Rahul had gone with those boys and girl; on search, dead body of Rahul was found at 07.00 a.m. on 26.06.2005 near Badesha Stone Crusher, village Jeevandpur. 3. Having registered the FIR, police started investigation and submitted a charge-sheet against the respondents for the offences punishable under Section 302, 394, 411 IPC and under Section 2/3 of the Gangster Act. Learned Sessions Judge, after examining the entire material, passed the judgment under appeal. 4. PW1 informant stated that he was running a confectionery and tea shop near Peerumadara crossroads and on 25.06.2005, when he came to his shop in the noon after taking lunch, Rahul told him that both accused had consumed liquor in the shop whereupon PW1 scolded both of them, however, in the evening, respondent no. 2 came to his shop once again and asked Rahul to drop him at his residence. PW1 permitted his son to drop respondent no. 2 on his motorcycle. 2 came to his shop once again and asked Rahul to drop him at his residence. PW1 permitted his son to drop respondent no. 2 on his motorcycle. Thereafter, Rahul went to drop him but did not return and on inquiry, respondent no. 2 narrated that Rahul and he were going on motorcycle and when they reached near the school gate two boys and one girl standing there had signalled them to stop and thereafter, Rahul had gone somewhere with those boys and girl on his motorcycle and he came back. 5. Learned Sessions Judge, after examining the entire material on record, has recorded a clear cut finding that both respondents have no criminal record, therefore, provisions of the Gangster Act are not applicable. Learned Sessions Judge has disbelieved the statement of PW1 by observing that in the normal circumstances when both the accused persons were found consuming liquor in the shop, it would be highly improbable for PW1 to have permitted his son, aged about 15 year, to drop respondent no. 2 on motorcycle in the evening after 2-3 hours. Learned Sessions Judge also disbelieved the statement of Chanda PW2, who was said to be of the watchman of Kisan Inter College. 6. We are conscious about the settled principle of law that if judgment of acquittal is being assailed, in an appeal or revision, reasoning and findings recorded by the trial court acquitting the accused, should not be disturbed lightly, simply because two views are possible. Reasoning and observations recorded by trial court while acquitting the accused should only be interfered with, when superior Court comes to a definite conclusion that reasoning and findings recorded by the trial court are shocking or are totally against the evidence available on record or are totally perverse or prosecution was denied ample opportunity to lead evidence in support of prosecution case on the unfounded grounds. 7. Learned trial Judge has rightly observed that statements of PW1 and PW2 cannot be relied upon for the simple reason that both of them were not consistent in their statements and every time, they were changing their stands. 7. Learned trial Judge has rightly observed that statements of PW1 and PW2 cannot be relied upon for the simple reason that both of them were not consistent in their statements and every time, they were changing their stands. At one place, PW1 deposed that motive of murder of his son Rahul was that he scolded respondents, after finding them consuming liquor and yet at another place, he deposed that motive behind murder of his son may be that he had altercation with a businessman of village Khatadi. 8. As, there was no eyewitness of the incident, prosecution was duty bound to prove circumstantial evidence and complete the chain thereof with cogent evidence ruling out any doubt or suspicion therein. In the present case, since the statements of PW1 and PW2 were not found to be reliable, therefore, evidence of last seen of Rahul in the company of respondent no. 2 is not proved. There is no other reliable evidence to the effect that Rahul was last seen in the company of both the accused respondents, therefore, offence punishable under Section 302 IPC is not proved at all. 9. We have carefully perused the recovery memo of motorcycle (Hero Honda make), recovered from the possession of respondent no. 1 and recovery of photocopies of papers of motorcycle from the possession of respondent no. 2. Since the statements of PW2 were found not to be reliable, therefore, recovery of photocopies of motorcycle papers from the possession of respondent no. 2 seems to be highly improbable and not proved. However, recovery memo of motorcycle, contains the signatures of respondent no. 1 and failure of respondent no. 1 to discharge his onus, to show as to how motorcycle came in his possession, therefore, offence punishable under Section 411 IPC can be said to have been proved, as observed by the learned trial Judge. In our firm opinion, recovery of motorcycle from the possession of respondent no. 1, does not mean that respondent no. 1 was involved in the murder of Rahul. 10. For the foregoing reasons, the prosecution story does not inspire confidence, therefore, there is absolutely no ground to interfere with the impugned judgment. Accordingly, the appeal fails and is dismissed.