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2013 DIGILAW 432 (UTT)

PRATHIVI SINGH v. STATE OF UTTARAKHAND

2013-07-03

ALOK SINGH

body2013
JUDGMENT Hon’ble Alok Singh, J. (Oral) Present appeal is directed against the judgment and order dated 28.03.2012, passed by Additional Sessions Judge/FTC-7, Dehradun, in Criminal Appeal No. 26 of 2011, whereby appellants were held guilty for the offence punishable under Sections 304, 201 IPC read with Section 34 IPC and were sentenced to undergo rigorous imprisonment for a period of 10 years each and to pay fine of Rs. 2,000/- each and in default, in making payment of fine, to undergo additional imprisonment of 01 month for the offence under Section 304/34 IPC; to undergo rigorous for a period of 02 years each and to pay fine of Rs. 2,000/- each and in default, in making payment of fine, to undergo additional imprisonment of 01 month for the offence under Section 201/34 IPC; with the stipulation that both the sentences shall run concurrently. 2. Brief facts of the present case, inter alia, are that PW1 Dinesh Singh Aswal, lodged a report with Police Station Doiwala, District Dehradun, stating therein that at about 11:15 p.m., Km. 2. Brief facts of the present case, inter alia, are that PW1 Dinesh Singh Aswal, lodged a report with Police Station Doiwala, District Dehradun, stating therein that at about 11:15 p.m., Km. Meenakshi D/o Prathivi Singh Rawat R/o Missarwala Kala, came to the resident of informant’s uncle; while weeping, she told that she was in love with Manish Thapa; she and Manish Thapa were talking each other on the roof of the house of the Meenakshi; meanwhile her father, appellant no.1 and brother, appellant no.2 could see both of them talking with each other; both of them started beating Manish Thapa with piece of brick and patal; she and Manish Thapa could able to run away from the spot; she told the informant that informant should save the life of Manish Thapa otherwise appellants would kill him; hearing this Dinesh Singh Aswal (PW1), Arvind Giri (PW2) and Mukul Thapa (PW4) rushed towards the house of appellants; in the house of appellants, younger son of Prathivi Singh aged about 11 years was found present; PW1, PW2 and PW4 noticed blood stains on the roof of the house of the appellants in the light of the torch; thereafter, in the search of Manish Thapa, PW1, PW2 and PW4 rushed towards the railway lines; while reaching near the railway lines, PW1, Pw2 and PW4 saw that both the appellants were throwing dead body of Manish on the railway track; PW1, PW2 and PW4 thereafter rushed towards the railway track; meanwhile, one train came and crushed the dead body of Manish; however, appellants were able to run towards the south; appellants were chased, however, could not be apprehended; dead body of Manish was laying on the track; appellants after killing Mansih, have thrown his dead body on the railway track; therefore, after registration of FIR, appropriate action be taken. 3. On the report of PW1, chik FIR was got registered at Police Station Doiwala, District Dehradun at 02:00 a.m. Investigation was handed over to S.S.I. Yogesh Singh (PW8). After completion of the investigation, charge-sheet was submitted against the appellants for the offence punishable under Section 302, 201 IPC. After committal of the trial to the court of Sessions, learned Sessions Judge was pleased to frame charges against the appellants herein for the offences punishable under Section 302/34 and 201/34 IPC. Appellants denied the charges and claimed trial. 4. After completion of the investigation, charge-sheet was submitted against the appellants for the offence punishable under Section 302, 201 IPC. After committal of the trial to the court of Sessions, learned Sessions Judge was pleased to frame charges against the appellants herein for the offences punishable under Section 302/34 and 201/34 IPC. Appellants denied the charges and claimed trial. 4. To prove the prosecution story, informant Dinesh Singh Aswal (PW1), Arvind Giri (PW2), Constable Rajaram (PW3), Mukul Thapa (PW4), Sukhdev Singh (PW5), Constable C.P. Shivcharan (PW6), Smt. Anuradha Garg, CBI Magistrate (PW7), Inspector Yogesh Singh (PW8) and Dr. R.C. Rawat (PW9) were examined and thereafter, statements of the appellants were also recorded under Section 313 of the Code of Criminal Procedure. From the side of the defence, Santosh Devi (DW1) was produced in the witness box. 5. Having perused entire material, learned trial court was pleased to pass judgment and order under appeal. 6. I have heard Mr. Dinesh Chauhan, Advocate for the appellants and Mr. Sudhir Kumar Chaudhary, Additional Government Advocate, for the State and have carefully perused the record. 7. Blood stained pajama (lower) and under shirt were recovered from the house of the appellants; one locket and piece of blood stained floor and plain floor from the roof of the appellants were also collected by the Investigating Officer. Clothes wearing by the deceased Manish, pajama and under shirt recovered from the house of the appellants along with blood stained piece of floor taken from the roof of the appellants were sent for chemical examination. As per the Forensic Science Laboratory report all items were found having human blood stains, however, same were found to the disintegrated. 8. Dead body of Manish Thapa was recovered at about 02:00 a.m. in the intervening night of 18/19.10.2010 from the railway track, Village Missarwala, Police Station Doiwala, District Dehradun; dead body was into two pieces and having multiple injuries; postmortem was conducted by Dr. R.C. Rawat (PW9) on 19.10.2010 at about 02:25 p.m. and as per the opinion of the doctor, death could have taken place 12-18 hours before the postmortem. 9. Statements of Meenakshi under Section 164 of the Code of Criminal Procedure, were also recorded by the learned Magistrate, Smt. Anuradha Garg (PW7) on 21.10.2010. English translation of the statements of Km. R.C. Rawat (PW9) on 19.10.2010 at about 02:25 p.m. and as per the opinion of the doctor, death could have taken place 12-18 hours before the postmortem. 9. Statements of Meenakshi under Section 164 of the Code of Criminal Procedure, were also recorded by the learned Magistrate, Smt. Anuradha Garg (PW7) on 21.10.2010. English translation of the statements of Km. Meenakshi, recorded under Section 164 of Code of Criminal Procedure is as under: I used to love Manish very much; he came to meet me in our agricultural field; I refused to meet him; thereupon he told that he wanted to meet me for the last time; even then I refused to meet him; thereupon, he said that he would die; he was standing near my house and was talking absurd to die; he never did such talks before; he came to my house; we were present on the roof of our house; meanwhile, my father came on the roof and he called my brother; my brother also came on the roof; my father and brother tried to catch him, however, both of us, after jumping from the roof ran away; Manish ran towards railway track, however, I ran towards the house of Manish to tell to save him otherwise he would be killed; when I reached at the house of Manish, his aunt and sister were present in his house; I narrated entire story to them; thereafter, family members of Manish came to my house; however, did not find Manish; all of us started searching for Mansih; however, could not find him; thereafter, at about 03:00 a.m., brother of Manish informed us that Manish was laying dead on the railway track and his dead body was in a bad shape. 10. PW1, PW2 and PW4 stated that they went to the house of the appellants wherein younger son of appellant no.1 namely Yogendra aged about 11 years was present; they noticed blood on the roof of the appellants; thereafter they rushed towards the railway track; they saw appellants throwing dead body of Manish on the railway track; appellants killed Manish on the roof of their house and thereafter his dead body was thrown on the railway track. 11. Mr. 11. Mr. Sudhir Kumar Chaudhary, learned Additional Government Advocate, for the State, has vehemently argued that from the statement of Meenakshi, recorded under Section 164 of the Code of Criminal Procedure, it can be safely said that Manish was present on the roof of the house of the appellants and from the blood found on the roof of the appellants as well as from the clothes of the appellants which were found containing human blood stain and in view of the statements of PW1, PW2 and PW4 that they saw the appellants throwing dead body of Manish on the railway track, it can be safely held that Manish was killed by the appellants in their house and thereafter dead body of deceased was thrown on the railway track by the appellants, therefore, guilt of the appellants stand prove beyond doubt. He further submitted that appellants failed to discharge their onus under Section 106 of the Evidence Act to the effect that as to how blood was found on the roof of their house and as to how their clothes, recovered from their house were having human blood. 12. Investigating Officer Yogesh Singh (PW8), during his examination, stated that he did not see any blood on the stairs of the house of the appellants; he did not find any blood on the way between the house of the appellant and railway track; there were only 6-7 houses between the railway track and the house of the appellants. He further stated that blood was found near the dead body at railway track. 13. As per the statements of Meenakshi, recorded under Section 164 of Code of Criminal Procedure, Meenakshi and Manish were present on the roof of the house of appellants and were talking, meanwhile, both the appellants came and saw them talking; both of them ran away after jumping from the roof. 14. Meenakshi has not been produced in the witness box for the reasons best known to the prosecution. 15. In the firm opinion of this Court, since, Meenakshi was not produced in the witness box and there is no other eyewitness to the effect that Manish was present in the house of the appellants therefore, it would not be safe to hold that Manish was present in the house of the appellants. 15. In the firm opinion of this Court, since, Meenakshi was not produced in the witness box and there is no other eyewitness to the effect that Manish was present in the house of the appellants therefore, it would not be safe to hold that Manish was present in the house of the appellants. In the absence of statement on oath of Meenakshi, no reliance can be placed by the prosecution, on the statement, recorded under Section 164 of the Code of Criminal Procedure. If presence of the Manish in the house of the appellants is not proved, then it would not be safe to hold that Manish was killed by the appellants in their house and thereafter his dead body was thrown on the railway track. Moreover, absence of blood on the stairs of the house of the appellants and on the way to railway track, as stated by Investigating Officer (PW8), it would not be safe to hold that after killing Manish in their house his dead body was taken by the appellants to the railway track and was thrown there. Not only this in the present case, pajama and under shirt recovered from the house of appellants cannot be said having blood of Manish in view of Forensic Science Laborty report that stains were disintegrated. There is another aspect of the case that as per the statement of Meenakshi, recorded under Section 164 of the Code of Criminal Procedure that Manish pleaded her to meet him for the last time as he was going to die; having seen the appellants, after jumping from the roof Manish ran towards the railway track while Meenakshi ran towards the house of Manish to plead to save him. In view of her statement, it can not be completely ruled out that Manish ran away from the roof of the appellants and thereafter committed suicide by jumping before the train. Moreover, Dr. R.C. Rawat (PW9) in his statement, stated that injury nos.1, 4, 5 & 6 were possible due to railway accident and injury nos. 2 & 3 were possible from the pointed wires. It is known fact that along the sides of the railway track, signal wires always present, therefore, death of Manish on the railway track cannot be completely ruled out. 16. There is another aspect of the matter. 2 & 3 were possible from the pointed wires. It is known fact that along the sides of the railway track, signal wires always present, therefore, death of Manish on the railway track cannot be completely ruled out. 16. There is another aspect of the matter. FIR was lodged in the Police Station at about 02:00 a.m. while Meenakshi came to the house of Manish at about 11:00 p.m. and soon thereafter all of them rushed to the house of the appellants and found the appellants throwing the dead body of Manish on the railway track. As to why matter was not reported promptly to the police while distance between the railway track, where dead body of Manish allegedly thrown was only about 01 Km away from the police station. It seems that report was submitted to the police only after the recovery of the dead body of Manish from the railway track at about 02:00 a.m. 17. In view of the above discussion, in my considered opinion, prosecution has failed to prove prosecution story beyond reasonable doubt, therefore, conviction of the appellants seems to be totally unjustified. Consequently, appeal is allowed. Impugned judgment and order, passed by learned trial court is set aside. Appellants are hereby acquitted from the charges levelled against them. Both the appellants are in jail. They shall be released forthwith, if not wanted in any other case. 18. Let copy of this order along with lower court record be sent back to the learned trial court for information and compliance.