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2013 DIGILAW 6 (UTT)

Mohan Singh v. State of Uttarakhand

2013-01-02

BARIN GHOSH, U.C.DHYANI

body2013
Judgment : Per: U.C. Dhyani, J. Present Criminal Appeal has been filed by accused appellant Mohan Singh against the judgment and order dated 6.8.2007 passed by the learned Sessions Judge, Chamoli (Gopeshwar) in Sessions Trial No. 12 of 2006 State Vs. Mohan Singh, whereby accused appellant Mohan Singh has been convicted and sentenced under Section 302 of the Indian Penal Code (hereinafter referred to as IPC) for life imprisonment along with fine of Rs. 20,000/- and sentenced under Section 394 of IPC for five years’ rigorous imprisonment along with fine of Rs. 10,000/-. In default of payment of fine under the said Sections, he was directed to undergo further two years’ simple imprisonment and one year simple imprisonment respectively. 2. PW1 Amar Singh wrote a complaint on 10.5.2006 to Patti Patwari Circle Talwari, Tehsil Tharali (Chamoli) regarding the death of his father Gabbar Singh. According to informant Amar Singh, his father Gabbar Singh went to attend a marriage procession along with his horse on 6.5.2006. When he was returning from Barat along with his horse, his father (Gabbar Singh) was found dead on 7.5.2006 in suspicious circumstances. An information to this effect was given by Amar Singh to Patti Patwari Talwari. Dead body of the deceased was sent for conducting inquest and, thereafter, for post mortem. Since the horse was missing from the spot, Amar Singh’s brother Rakesh and his friends enquired about the same in the neighbouring villages, when one Mohan Singh informed Rakesh and his friends that in the morning of 7.5.2006, Mohan Singh Gosain, a resident of Village Talwari, had come with an almond colour horse in the house of Mohan Singh. On the query of Mohan Singh, Mohan Singh Gosain told him that he has brought the said horse from Kedar Nath and wanted Mohan Singh to purchase the horse, but Mohan Singh did not. Next day, Mohan Singh Gosain went towards Khansar. On getting this information, Rakesh Singh and his friends went to Khansar in search of the missing horse, but the villagers of Khansar denied having seen any horse. Rakesh and his friends disclosed the same to Amar Singh. All of them suspected that Gabbar Singh was killed by Mohan Singh, who has fled away with the horse. 3. On the basis of the said FIR, investigation began. After the inquest was prepared, the dead body was sent for post mortem. Rakesh and his friends disclosed the same to Amar Singh. All of them suspected that Gabbar Singh was killed by Mohan Singh, who has fled away with the horse. 3. On the basis of the said FIR, investigation began. After the inquest was prepared, the dead body was sent for post mortem. The statements of the witnesses were taken by the Investigating Officer, who effected the arrest of the accused and, after being satisfied with the fact that the accused committed an offence punishable under Sections 302 and 394 of the Indian Penal Code (hereinafter referred to as IPC) submitted a charge sheet against the accused before the court of Magistrate having jurisdiction. 4. When the prosecution opened its case, charges for offences punishable under Sections 302 and 394 were framed against accused Mohan Singh. As many as nine witnesses were examined on behalf of the prosecution. They were – PW1 Amar Singh, PW2 Dr. R.S. Sheepal, PW3 Rahubeer Singh, PW4 Man Singh, PW5 Rakesh Singh, PW6 Raghubeer Giri, PW7 Mohan Giri, PW8 Bhupati Raj Kumar and PW9 Himmat Singh. Incriminating evidence was put to the accused, who said that since his uncle Harak Singh and cousin Raghubeer Singh were inimical to him, they falsely implicated him in connivance with Rakesh. DW1 Raghubeer Singh was examined in defence. After considering the evidence on record, learned court below convicted accused Mohan Singh of the offense punishable under Sections 302 and 394 of IPC and was sentenced appropriately. Aggrieved against the said conviction and sentence, present criminal appeal was preferred on behalf of the appellant. 5. Prosecution led the evidence through PW3, PW4, PW5, PW6 and PW7. 6. PW1 Amar Singh was the complainant, who not only proved his complaint (Exhibit Ka-3), but also proved the contents of the same in his examination-in-chief. 7. PW2 Dr. R.S. Sheepal conducted post mortem on the dead body of the deceased on 8.5.2006 at 11 AM. The Medical Officer found certain ante mortem injuries on the dead body of the victim. The cause of death of the victim was ante mortem head injuries and liver injury. The Medical Officer said that the ante mortem injuries, as were sustained by the deceased, were possible on 6.5.2006 between 6 to 9 PM. He also proved post mortem report (Exhibit Ka-4). PW8 Bhupati Raj Kumar was Naib Tehsildar of the Circle on 11.5.2006. The cause of death of the victim was ante mortem head injuries and liver injury. The Medical Officer said that the ante mortem injuries, as were sustained by the deceased, were possible on 6.5.2006 between 6 to 9 PM. He also proved post mortem report (Exhibit Ka-4). PW8 Bhupati Raj Kumar was Naib Tehsildar of the Circle on 11.5.2006. He took over the investigation from PW9 Himmat Singh (Patwari), took the statements of the witnesses, inspected the place of occurrence and prepared the site plan. PW8 effected the arrest of the accused and took the statements of Amar Singh, Mahi Pal Singh and Rajendra Singh. PW8 also recovered the horse neck bell and saddle from the house of the accused and prepared the recovery memo (Exhibit Ka-5) of the same. Thereafter, on being satisfied with the fact that the accused committed offences punishable under Sections 302 and 394 of IPC, PW8 submitted a charge sheet against the accused in relation to the said offences. PW9 Himmat Singh (Patwari) proved the chick FIR (Exhibit Ka-14) and the entries of the same in G.D. (Exhibit Ka-9). He was also a signatory to the inquest report (Exhibit Ka-2) and related papers (Exhibit Ka-10 to Exhibit Ka-13). He conducted investigation at some length and handed over the investigation to PW8. 8. PW3 Raghubeer Singh said that Mohan Singh was his fellow villager. Victim Gabbar Singh was a resident of Village Thala. The distance between Thala and PW3’s village was 1 ½ kilometer. Gabbar Singh (victim) had an almond colour horse. On 6.5.2006 at 9 PM, when PW3 was coming to his house, he heard the sound of horse neck bell. PW3 saw that Mohan Singh was taking the horse of Gabbar Singh along with him. Next day in the evening, PW3 heard that Gabbar Singh was dead. Mohan Singh was also not seen in his village thereafter. Thus, the sum and substance of the testimony of PW3 was that he saw the horse of the victim being taken by the accused. 9. PW4 Man Singh said that his daughter’s marriage was to be solemnized on 6.5.2006. PW4 took the horse of Gabbar Singh for the purpose of marriage. Gabbar Singh came in the marriage along with his horse. PW4 said that accused Mohan Singh was also invited to attend the said marriage. 9. PW4 Man Singh said that his daughter’s marriage was to be solemnized on 6.5.2006. PW4 took the horse of Gabbar Singh for the purpose of marriage. Gabbar Singh came in the marriage along with his horse. PW4 said that accused Mohan Singh was also invited to attend the said marriage. Gabbar Singh also came and was seen off on the selfsame day at 5:30 PM. In his cross-examination, PW4 said that the horse of Gabbar Singh came back to PW4’s house. When the marriage procession departed, Gabbar Singh came along with the horse in the road. Thereafter, the marriage procession returned by Bus. In other words, the horse was seen on the road till such time the Barat departed. Gabbar Singh was paid his remuneration. The horse was not brought by him upto the house of PW4 Man Singh, but was left at the road, from where the Bus departed. PW5 Rakesh Singh said that on 6.5.2006, his father Gabbar Singh came to attend the marriage of the daughter of PW4 Man Singh along with his horse. While returning, Mohan Singh killed Gabbar Singh and looted the horse. PW5 Rakesh Singh was in Kulasari on the date of incident. PW5 came to know of the said incident on 8.5.2006. In the evening of 8.5.2006, PW5 started making a search for Mohan Singh. He received an information from Majkot that Mohan Singh went towards Khansar at 5 AM along with the horse. Then, PW5 went to Khansar, whereupon he came to know that Mohan Singh did not go there. On 10.5.2006, a report was lodged with Patwari of the circle concerned. On 12.5.2006, Mohan Singh left the horse in jungle. Horse came back to the house of PW5 Rakesh Singh, son of Gabbar Singh (victim). When the horse returned, the neck bell and saddle were missing. On 14.5.2006, Rakesh Singh along with Naib Tehsidar and Patwari went to the Chhappar of Mohan Singh, who said that he has kept the horse neck bell and saddle in his Chhappar. Thereafter, on the disclosure and pointing of Mohan Singh, said incriminating articles (horse neck bell and saddle) were recovered, a recovery memo (Exhibit Ka-5) whereof was prepared. Horse neck bell and saddle (material Exhibits 1 to 4) were exhibited in the Court, but the same had no distinctive feature. Thereafter, on the disclosure and pointing of Mohan Singh, said incriminating articles (horse neck bell and saddle) were recovered, a recovery memo (Exhibit Ka-5) whereof was prepared. Horse neck bell and saddle (material Exhibits 1 to 4) were exhibited in the Court, but the same had no distinctive feature. It could not be said that the horse neck bell and saddle essentially belonged to the horse which was looted/stolen. 10. PW6 Raghubeer Giri said that he had sold the horse to Rakesh, son of Gabbar Singh. Around six months ago, when PW6 was sitting in his shop at Majkot, Mohan Singh came to him at around 8 AM. He had an almond colour horse with him and he offered to sell his horse. Thereafter, Mohan Singh went to the house of Mohan Giri and stayed with him in the night. Next day, he left the village. When PW6 heard that a murder took place near Talwari and the miscreants also took away the horse of the victim, then PW6 made a telephonic call to the uncle of Rakesh that Mohan Singh had come to him along with the horse. Rakesh came to meet PW6 on the very next day, whereby he was informed of the same. PW7 Mohan Giri supported PW6. 11. Learned counsel for the appellant submitted the statements of witnesses were contradictory to each other as regards the possession of the looted horse. It was also contended that although PW6 Raghubeer Giri sold the horse to Gabbar Singh’ son, but his son Rakesh Singh did not say so. PW6 Raghubeer Giri was not in the business of horse breeding. It could not be believed that PW6 Raghubeer Giri sold the horse to Gabbar Singh. PW 3 Raghubeer Singh saw accused Mohan Singh along with the horse of Gabbar Singh on 06.05.2006, at 9:00 p.m. PW 6 Raghubeer Giri while deposing before the court on 08.11.2006, said that about 6 months ago, at 8:00 a.m., Mohan Singh came to PW 6’s house. Mohan Singh was having an almond colour horse. Mohan Singh was saying PW 6 that he wanted to sell off that horse, but PW 6 did not respond. Thereafter Mohan Singh went to Mohan Giri’s house. Mohan Singh left the house on the next day. When Mohan Singh’s son Rakesh came to PW 6, he was told that an almond colour horse was with Mohan Singh. Mohan Singh was saying PW 6 that he wanted to sell off that horse, but PW 6 did not respond. Thereafter Mohan Singh went to Mohan Giri’s house. Mohan Singh left the house on the next day. When Mohan Singh’s son Rakesh came to PW 6, he was told that an almond colour horse was with Mohan Singh. PW 7 Mohan Giri said that a horse was seen along with Mohan Singh, who stayed with PW 7 in the aforesaid night and left the village on the next morning. The evidence tendered by PW 3, PW 6 and PW 7 was not acceptable piece of evidence, in as much as, it was not evidenced that Raghubeer Giri was in the business of horse breeding and further, the occasion and timings of having seen accused with horse were also incompatible. There was no occasion for the accused to have told Raghubeer Giri that he wanted to sell off the horse. So far as the recovery of the stolen horse is concerned, no independent witness was examined to prove the same. Such recovery cannot be believed on the basis of evidence of Naib Tehsildar and Patwari. No conviction can sustain in the absence of cogent reliable piece of evidence. As has been said earlier that the recovered horse neck bell and saddle were carrying no distinctive feature and therefore, it was not possible to connect the recovered articles with the belongings of stolen /looted horse of Gabbar Singh. 12. PW6 Raghubeer Giri’s statement that he had sold the horse to Gabbar Singh (deceased) cannot be believed, and the recovery part cannot be accepted beyond reasonable doubt in the absence of reliable and independent witness. Prosecution was not able to prove the case against the accused beyond reasonable doubt. Link evidence was in complete disarray. 13. Criminal Appeal deserves to be allowed and is accordingly allowed. Judgment and order under appeal is set aside. Conviction and sentence awarded to accused Mohan Singh is also set aside. 14. Accused Mohan Singh is on bail. His bail bonds are cancelled and sureties are discharged. He need not surrender. 15. Let the lower court record be sent back along with a copy of this judgment to the court below.