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Uttarakhand High Court · body

2013 DIGILAW 416 (UTT)

VIKRAM SINGH GUSAIN v. STATE OF UTTARANCHAL

2013-07-01

U.C.Dhyani

body2013
JUDGMENT Hon’ble U.C. Dhyani, J. (Oral) Accused-respondents Arvind Badola and Sunil Kundalia were tried for the offences punishable under Sections 302/34 and 201/34 IPC, by the learned Sessions Judge, Pauri Garhwal and were acquitted vide order dated 12th June, 2006 by giving them benefit of doubt. Aggrieved against the impugned order dated 12th June, 2006, present Criminal Revision was preferred by the informant-revisionist. 2. The informant-revisionist moved an application on 21.07.1996 enumerating the facts contained therein that his brother Mahendra Singh Gusain along with his companions Arvind Badola and Sunil Kundalia collected 70,000/- each, for the purpose of establishing a shop in Srinagar. They hired a shop in Sri Nagar. Mahendra Singh Gusain, was not traceable since 15.07.1996. A frantic search for him was made by the informant, but to no avail. When an enquiry was made by the police from the accused-respondents Arvind Badola and Sunil Kundalia, they said that they went to take a bath on 15.07.1996, Mahendra drowned in the river. They threw the wearing apparels of the victim (deceased) in the river flowing beneath Laxman Jhoola. On 17.07.1996, when Mahendra’s mother enquired from them about her son, the accused-respondent pleaded ignorance. Later on, it was revealed that the accused-respondents developed a false story of throwing of wearing apparels of the deceased in the river. In fact, they concealed the wearing apparels of the deceased in Nehru Gram, Dehradun out of fear. The clothes of the deceased were got recovered at the instance of the accused-respondents. When a report from the Forensic Science Laboratory was obtained, the same was found stained with human blood. After the investigation, the investigating officer did not find it to be a case of murder. According to the investigating officer, it was an accident, in which the victim drowned while taking bath in Alaknanda river. The dead body of the deceased could not be found. The investigating officer submitted Final Report on 19.02.1997. 3. The informant Vikram Singh Gusain lodged protest petition. The Final Report dated 02.11.1998 was rejected and the accused persons were summoned through warrants for the offences punishable under Sections 302/201 IPC. Accused appeared before the Magistrate. The case was committed to the Court of Sessions. The investigating officer submitted Final Report on 19.02.1997. 3. The informant Vikram Singh Gusain lodged protest petition. The Final Report dated 02.11.1998 was rejected and the accused persons were summoned through warrants for the offences punishable under Sections 302/201 IPC. Accused appeared before the Magistrate. The case was committed to the Court of Sessions. When the trial began and prosecution opened it’s case, charges for the offences punishable under Sections 302/34 and 201/34 IPC were framed against the accused-respondents to which they pleaded not guilty and claimed trial. 4. PW1 Vikram Singh Gusain (informant), PW 2 Kamla Devi (mother of the deceased), PW 3 Subhash Bahuguna, PW 4 Raj Kishor were examined on behalf of the prosecution. Incriminating evidence was put to the accused persons, in which they said that they were falsely implicated in the case. No evidence was given in defence. 5. PW1 Vikram Singh Gusain, who was elder brother of the deceased, supported the prosecution story and proved his complaint. His examination-in-chief was almost verbatim reproduction of what PW1 wrote in the complaint. He said, among other things, that the accused-respondents and the deceased wanted to establish a shop in Srinagar. Whereas the accused-respondents returned after a few days, the deceased did not. The wearing apparels of the deceased were got recovered at the instance of the accused-respondents. PW1 identified the clothes of the deceased. He admitted in the cross-examination that his brother (deceased) went to the river from his residence, but no witness was found. He also could not find any witness from Gola Bazar, Srinagar. 6. PW2 Smt. Kamla Devi, mother of the deceased also said that the accused-persons brought the wearing apparels of the deceased, which were identified by PW2. She identified the clothes (Ext.-1 and Ext.-2) of the deceased. She did not remember the statement which was given by her to the investigating officer. 7. PW3 Subhash Bahuguna was the witness of recovery of wearing apparels of the deceased from Nehru Gram, Dehradun. PW 3 said that Material Exts. 1 & 2 were got recovered on the pointing of the accused-respondents. PW3 identified his signatures on the recovery memo. 8. PW4 Raj Kishor Singh, SO, Srinagar said that on 21.07.1996, Vikram Singh Gusain lodged a missing report regarding the non-availability of his brother (victim). PW 3 said that Material Exts. 1 & 2 were got recovered on the pointing of the accused-respondents. PW3 identified his signatures on the recovery memo. 8. PW4 Raj Kishor Singh, SO, Srinagar said that on 21.07.1996, Vikram Singh Gusain lodged a missing report regarding the non-availability of his brother (victim). The investigation was assigned to SI Mangeram, but he proceeded on leave for five days, and therefore, the investigation was conducted by PW 4 himself. It came to the light during the investigation that the victim drowned in the river. While the accused projected in the beginning that they threw the clothes of the victim in river, beneath Laxman Jhoola, later on it came to the fore that they have concealed the clothes of the victim near pulia (lane) no. 8, Nehru Gram, Dehradun. Material Exts. 1 & 2 were got recovered at their instance, recovery memo whereof was prepared. The clothes were sent to Forensic Science Laboratory. The latter part of the investigation was transferred to R.P. Dube, SO, Raipur. 9. There was no evidence on record to show that the victim was murdered. There was no direct evidence to the accusation levelled against the accused-respondents. Police found, during the investigation, that the victim, along with the accused-respondents, went to take bath in the river, where the victim drowned. Even if the recovery of Material Exts. 1 & 2 be assumed to be true, the same was not admissible under Section 27 of the Indian Evidence Act, in as much as, the respondents were not in police custody when they got the wearing apparels of the victim recovered on their pointing. The case was totally based upon the circumstantial evidence, and that too could not be proved. Most of the evidentiary links were missing. The FSL also reported that the blood stains on the clothes were disintegrated. The dead body of the victim has not been recovered till date. In the circumstances, it was not possible for the learned Court below to have convicted the accused-respondents. It is not possible for this Court to hold otherwise. No motive was ascribed to show the killing of the victim by the accused-respondents. Learned trial court held that the prosecution was not able to prove the case beyond reasonable doubt. In the circumstances, it was not possible for the learned Court below to have convicted the accused-respondents. It is not possible for this Court to hold otherwise. No motive was ascribed to show the killing of the victim by the accused-respondents. Learned trial court held that the prosecution was not able to prove the case beyond reasonable doubt. It is being said at the cost of repetition here that initially the police also did not find a case of murder against the accused-respondents and it was only at the instance of the informant-revisionist that the proceedings were initiated against the accused-respondents. There was no evidence at all on record to indicate that the accused-respondents committed murder of the victim. The accused-respondents were rightly exonerated by the Court below of the charges levelled against them. No interference is called for in the impugned judgment. Criminal Revision fails and is accordingly dismissed.