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2013 DIGILAW 171 (UTT)

SUKHVIR v. STATE OF UTTARAKHAND

2013-04-04

Alok Singh

body2013
JUDGMENT Hon’ble Alok Singh, J. (Oral) None is appearing for the appellants. Mr. B.S. Parihar, Advocate is requested to appear in the present matter as Amicus Curiae. He has agreed to appear as Amicus Curiae. Copy of the paper book has been handed over to him. Having perused the paper book, so handed over to him, Mr. B.S. Parihar has agreed to argue the appeal today itself. During the arguments being advanced by Mr. B.S. Parihar, Amicus Curiae, Mr. Rajendra Singh Advocate has also appeared. Therefore, both of them are heard. 2. Appellants, by way of present appeal, are assailing the judgment and order dated 28.04.2009 passed by Additional Sessions Judge/1st F.T.C., Roorkee, District Haridwar whereby both the appellants were found guilty for an offence punishable under Section 364 of I.P.C. and were sentenced to undergo R.I. for a period of seven years and to pay fine of Rs. 5,000/-, failing which to undergo additional imprisonment for six months. 3. 5,000/-, failing which to undergo additional imprisonment for six months. 3. Brief facts of the present case inter alia are that Dev Pal (P.W.2) has lodged a report with the police on 31st July, 1999 stating therein that on 17.06.1999, both the appellants came to his house and after telling his elder brother Vikram that they were going to Muzaffarnagar have taken along with them Vinod @ Kala; after two days appellant No. 1 – Sukhvir came back to the village; on being asked appellant No. 1 has informed Dev Pal (P.W.2) that Vinod @ Kala had gone to her aunt (BUAJI) house in village Matheri; Having waited for 2-3 days P.W.-2 went to Matheri to his sister’s house to know whereabouts of Vinod @ Kala; However, he was told by his sister that Vinod @ Kala did not come to Matheri for last 2-3 months; thereafter P.W.-2 went to other relatives to know the whereabouts of Vinod @ Kala; when appellant No. 1 was approached once again, he did not give any satisfactory answer and has absconded from that day from the village; P.W.-2 thereafter went to the village of appellant No. 2 – Jai Veer, however, appellant No. 2 was also not found at his residence; Mahipal Singh (P.W.1) and Tejpal have also seen the appellants taking Vinod @ Kala along with them; on being asked by P.W.-1 and Tejpal, appellants told them that they were going to Muzaffarnagar; P.W.-2 informant has full suspicion on the appellants that they have kidnapped his son Vinod @ Kala. 4. Having received First Information Report, Case Crime No. 204/1999 under Section 364 of I.P.C. was registered against the appellants. Having investigated the matter chargesheet was submitted. Learned A.C.J.M. has committed the trial to the court of Sessions. Charges were framed against the accused/appellants for an offence punishable under Section 364 of I.P.C. Both the appellants did not admit their guilt and claimed trial. 5. From the side of the prosecution Mahipal Singh (P.W.1), Dev Pal (P.W.2), Vikram Singh (P.W.3) and Daya Ram Arya (P.W.4) were examined. Statements of the accused/appellants were also recorded under Section 313 of Code of Criminal Procedure. Having perused entire material made available on the record, learned trial court was pleased to pass the judgment and order under appeal. 6. From the side of the prosecution Mahipal Singh (P.W.1), Dev Pal (P.W.2), Vikram Singh (P.W.3) and Daya Ram Arya (P.W.4) were examined. Statements of the accused/appellants were also recorded under Section 313 of Code of Criminal Procedure. Having perused entire material made available on the record, learned trial court was pleased to pass the judgment and order under appeal. 6. In the First Information Report or in the statement of P.W.-2 there is no whisper that appellants have kidnapped Vikram @ Kala in order to murder him. Dev Pal (P.W.2) informant states that P.W.-2 was not present in his house when both of the appellants allegedly came to their house and have taken away Vinod @ Kala along with them on the pretext that all of them were going to Muzaffarnagar. 7. P.W.-1 states that he has seen Vinod @ Kala in the company of appellants and Satpal; P.W.-1 has asked them where were they going and all of them have told him that they were going to Muzaffarnagar. 8. The statement of P.W.-1 to the effect that he was told by the appellants as well as Vinod @ Kala that they were going to Muzaffarnagar are not sufficient to prove the guilt of the appellants. Moreover, Satpal, who was said to be in the company of the appellants and Vinod @ Kala has not been examined by the prosecution to say that he has left Vinod @ Kala in the company of both the appellants and till what time he remained in the company of appellants and Vinod @ Kala. 9. find force in the arguments of learned counsel for the appellants that to constitute an offence punishable under Section 364 of I.P.C. prosecution must prove mens rea to the effect that the appellants were having intention/object to murder the victim. 10. In the firm opinion of this Court, non examination of Satpal seems to be fetal to complete the chain of events to prove the guilt of appellants. No reliance can be placed on the statement of P.W.-2 for the simple reason P.W.-2 has not seen appellants taking away Vinod @ Kala along with them and P.W.-1 does not say that appellants were taking Vinod @ Kala under pressure. P.W.-1 has seen Satpal also in the company of the appellants and Vinod @ Kala, but Satpal was neither traced out nor examined by the prosecution. P.W.-1 has seen Satpal also in the company of the appellants and Vinod @ Kala, but Satpal was neither traced out nor examined by the prosecution. Last seen evidence of P.W.-1 without further corroboration seems to be insufficient to prove the guilt of the appellants. 11. In view of the above, order and judgment under appeal does not sustain in the eye of law. Therefore, appeal is allowed. 12. The judgment and order under appeal is set aside. Both the appellants stand acquitted. They are on bail. They need not surrender. Their bonds and sureties stand discharged. 13. ower court record along with copy of this judgment be forwarded to the learned trial court for information and necessary compliance.