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2013 DIGILAW 343 (UTT)

Khurshid Ahmad v. State of Uttarakhand

2013-06-18

ALOK SINGH

body2013
JUDGMENT Mr. Manoj Sah, Advocate who was earlier appointed as Amicus Curiae, was not present in the Court when appeal was taken up for hearing in pre lunch session. Therefore, Narayan Har Gupta, Advocate present in the Court was requested to appear as Amicus Curiae in the present case. Mr. Narayan Har Gupta, Advocate agreed to argue this appeal in post lunch session. Copy of the paper book was handed over to him. 2. Appeal was taken up for hearing in post lunch session. 3. Present appeal was received through Jail Authority assailing the judgment and order dated 18.02.2011 passed by Sessions Judge, Almora in Session Trial No. 1 of 2010, whereby appellant was found guilty for the offence punishable under Sections 304 Part II, 394 and 411, I.P.C. and was sentenced to undergo rigorous imprisonment for a period of five years under Section 304 Part II, I.P.C.; to undergo rigorous imprisonment for a period of four years and to pay fine of Rs.2,000/-, and in default of making payment of fine, to undergo additional simple imprisonment of six months under Section 394, I.P.C.; to undergo rigorous imprisonment for a period of six months under Section 411, I.P.C with the stipulation that all the sentences shall run concurrently. 4. As per the prosecution story, a report was handed over by PW2 Rakshit Bora stating therein that his father, namely, Shri Shyam Singh Bora was Sub Treasury Officer at Bhikiyasen; on 15.10.2009, he went to Almora to attend meeting; on 16.10.2009, his father went to market and at that time he was having Rs. 10,000/- with him; his father withdrew Rs.15,000/- from the Bank of India, Branch Almora on 16.10.2009 itself and thereafter he went missing; on 17.10.2009 at about 11:00 a.m., Irfan, an employee of Treasury Office, came to their house and told him that his father was laying injured in unconscious condition at Nazarat Almora; PW2 Rakshit Bora along with his mother Smt. Shanti Bora PW1 reached at the spot and found Shri Shyam Singh Bora laying unconscious in injured condition and blood was oozing out from his mouth and nose; he was rushed to District Hospital Almora; wherefrom he was referred to Base Hospital Almora; noticing his critical condition, he was further referred to Higher Centre. 5. 5. Shri Shyam Singh Bora remained admitted in the hospital and ultimately expired on 28.10.2009; on 29.10.2009, post-mortem was conducted on the dead body of Shri Shyam Singh Bora; cause of death was found due to head injuries sustained by Shri Shyam Singh Bora; case was ultimately registered on the intervention of the then S.D.M. on 13.11.2009; investigation was handed over to PW9 Rami Ram; appellant was apprehended on 18.11.2009; mobile phone having Sim Number 9456724336 and IME No. 35366802766128 was recovered on the pointing out of the appellant along with Rs. 2,000/- from the rented room in the house of Smt. Kanan Devi; appellant confessed his guilt to the police leading to the alleged recovery; having investigated the matter, PW9 Rami Ram submitted charge-sheet against the appellant for the offence punishable under Sections 394, 304 and 411, I.P.C. After committal, learned Trial Court was pleased to frame charges against the appellant for the offence punishable under Sections 394, 304 and 411, I.P.C. Appellant denied the charges and claimed trial. 6. To prove the prosecution story, PW1 Smt. Shati Bora, PW2 Rakshit Bora, PW3 Harish Singh Dhanik, PW4 Tahri, PW5 Salim, PW6 Constable Narayan, PW7 Head Constable Devi Datt Pandey, PW8 Dr. Virendra Singh and PW9 Investigating Officer Rami Ram were examined. Thereafter, statement of appellant was also recorded under Section 313 of the Cr.P.C. 7. Having perused the entire material made available on record, learned Trial Judge was pleased to convict and sentence the appellant vide judgment and order impugned in the present appeal. 8. I have heard Mr. Narayan Har Gupta, learned Amicus Curiae for the appellant and Mr. Raman Kumar Sah, learned A.G.A. and S.S. Adhikari, learned Brief Holder for the State and have carefully perused the record. 9. There is absolutely no eye-witness of the incident. Not only this, there is absolutely no last seen evidence as well. Entire prosecution case is roaming around the alleged confession of the appellant and alleged recovery of mobile phone belonging to the deceased. 10. It has been correctly argued by Mr. Narayan Har Gupta that prosecution could not prove that mobile phone allegedly recovered on the pointing out of the appellant, in fact, was owned by deceased Shyam Singh Bora. Entire prosecution case is roaming around the alleged confession of the appellant and alleged recovery of mobile phone belonging to the deceased. 10. It has been correctly argued by Mr. Narayan Har Gupta that prosecution could not prove that mobile phone allegedly recovered on the pointing out of the appellant, in fact, was owned by deceased Shyam Singh Bora. In my firm opinion, prosecution could have produced the record of the service provider to prove that sim was purchased by deceased Shyam Singh Bora; it has also not been proved by any cogent evidence that mobile set was owned by the deceased or by any other family member of the deceased. 11. Alleged confession of the appellant before the police that mobile phone and rupees were looted by the appellant from the deceased and alleged recovery of phone has no relevance in the eyes of law in the absence of the evidence to the effect that mobile phone was owned by the deceased. 12. In view of the discussion made hereinabove, I am of the considered view that prosecution was not able to prove the prosecution story beyond reasonable doubt. Therefore, conviction of the appellant seems to be totally unjustified. 13. Consequently, present appeal is allowed. Impugned judgment and order passed by Sessions Judge Almora in Session Trial No. 1 of 2010 is set aside. 14. Appellant stands acquitted from the charges levelled against him. Appellant is in jail. He may be released forthwith, if not wanted in any other case. 15. Let copy of this judgment along with L.C.R. be sent back to the lower court for information and compliance immediately. Appeal allowed.