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2014 DIGILAW 569 (UTT)

RAJU v. STATE OF UTTARAKHAND

2014-12-11

ALOK SINGH, SERVESH KUMAR GUPTA

body2014
JUDGMENT Hon’ble Alok Singh, J. (Oral) Present appeal is preferred assailing the judgment and order dated 31.07.2010, passed by the learned Additional Sessions Judge Kashipur, District Udham Singh Nagar in Session Trial No. 228/2229 of 2006 whereby accused appellant was held guilty for the offences punishable under Sections 302, 201 I.P.C. and under Section 4/25 of the Arms Act; and sentenced to undergo life imprisonment and to pay fine of Rs. 5,000/- and in default of making payment of fine, to undergo additional imprisonment of one year under Section 302 I.P.C.; to undergo R.I. for a period of one year and to pay fine of Rs.1,000/- and in default of making payment of fine, to undergo additional imprisonment of six months under Section 201 I.P.C.; to undergo R.I. for a period of one year and to pay fine of Rs.500/- and in default of making payment of fine, to undergo additional imprisonment of three months under Section 4/25 Arms Act. 2. Brief facts of the present case, inter alia, are that Balkar Singh PW1 got registered an F.I.R. on 06.03.2006 with Police Station Kashipur, District Udham Singh Nagar to the effect that Balkar Singh PW1 is the resident of Banskhera Kala, Police Station Kashipur; at about 8:30 A.M. in the morning of 06.03.2006, he was going towards his khet (agricultural field); when he reached near agricultural field of his brother Puran Singh near Gurudwara Nankana Sahib, he could see dead body of one lady, having cut on her neck, lying in the vegetable field; unknown person after committing murder of the lady would have thrown the dead body in the vegetable field; he (Balkar Singh PW1) also came to know that dead body of one another person was also lying on the railway track near Aliganj Kashipur and that dead body was also having cut on his neck; he could not identify the dead body of the lady, therefore, having registered the report, appropriate action be taken. 3. 3. During the investigation, it came to the notice of the Investigating Officer that accused appellant was having illicit relation with Sugra deceased and Sugra deceased was last seen in the company of accused appellant at about 10:30 P.M. on 05.03.2006 by Safi Ahmad PW6, therefore, appellant was interrogated; appellant has confessed his guilt before the police and undertook to recover the knife used in the crime; he took the police party to his home and after opening the box, appellant took out the knife and handed over the knife to the police party and stated that by the same knife, he has committed murder of Smt. Sugra (deceased). 4. Having investigated the matter, police submitted two separate chergesheets against the sole accused appellant. One for the offences punishable under Sections 302 and 201 I.P.C. and another for the offence punishable under Section 4/25 of the Arms Act. 3 5. After committal of the Trial to the Session Court, both the trials, one under Sections 302 and 201 I.P.C. and another under Section 4/25 of the Arms Act were consolidated. 6. To prove the prosecution story, informant Balkar Singh PW1, Abdul Salam PW2, Jumma PW3, Farid PW4, Dr. Manoj Kushwaha PW5, Safi Ahmad PW6, S.I. Chandrapal Singh PW7, S.I. Sanjay Kumar PW8, Shri C.G. Goswami PW9, A.S.I. Anand Singh PW10, Kali Ram PW11 and Constabl Dayal Ram Arya PW12 were examined from the side of the prosecution and thereafter statement of the accused under Section 313 were recorded. From the side of defence Ram Chandra DW1 and Deepak DW3 were examined. 7. We have heard Mr. Siddhartha Bisht, learned counsel for the appellant and Mr. A.S. Gill, learned Deputy Advocate General assisted by Mr. G.S. Negi, Brief Holder for the State and have carefully perused the record. 8. As per Ex.Ka.12 recovery memo of the knife, accused appellant took the police party to his residence and having opened the tin box, took out the knife and handed over to the police and stated before the police that this was the knife whereby he has cut the neck of Sugra. 8. As per Ex.Ka.12 recovery memo of the knife, accused appellant took the police party to his residence and having opened the tin box, took out the knife and handed over to the police and stated before the police that this was the knife whereby he has cut the neck of Sugra. PW7 S.I. Chandra Pal Singh, the then Investigating Officer in his statement on oath has stated that on 22.05.2006 accused appellant has confessed before him that Sugra was pressurizing him (accused) to marry with her, therefore, in the night of 05.03.2006, he has murdered Sugra by cutting her neck and after washing the knife he has concealed the knife in his house and he could recover the knife. Accused was taken to his house. He took the police party to the room and he (accused) opened the tin box and took out the knife from the tin box and handed over to the police party and stated that this was the weapon which was used in the murder of Sugra. 9. Sections 25, 26, and 27 of the Indian Evidence Act, are reproduced as under: “Section 25 - Confession to police officer not to be proved - No confession made to a police officer , shall be proved as against a person accused of any offence. Section 26 - Confession by accused while in custody of police not to be proved against him -No confession made by any person whlist the is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate1 , shall be proved as against such person. Explanation.-In this section “Magistrate” does not include the head of a village discharging magisterial functions in the Presidency of Fort St. George or elsewhere, unless such headman is a Magistrate exercising the powers of a Magistrate under the Code of Criminal Procedure, 1882 (10 of 1882) ]. Section 27 - How much of information received from accused may be proved - Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.” 10. No confession made before a police officer, shall be proved as against the accused person of any offence; no confession made by any accused person while in custody of police officer, shall be proved against such person, unless the confession is made in immediate presence of a Magistrate. Section 27 is an exception to Sections 25 and 26 and it provides that any fact / information received from person accused of any offence in custody of police officer which has resulted into discovery of any fact may be proved against the accused. 11. Let us now examine as to whether this is a case of discovery of knife, on the information received from the accused or this is a case of recovery made by the accused himself, after having confessed the guilt while he was in police custody. 12. As observed hereinbefore, accused has confessed his guilt before the police while in custody; undertook to recover the knife; he took the police party to the room in his house; he himself opened the tin box; took out the knife from the tin box and handed over the knife to the police party and told the police party that this was the knife whereby he has murdered Smt. Sugra. 13. In our considered opinion, in the present case, knife was not discovered by the police party on the information received from the accused rather it is a case where accused himself after opening the tin box took out the knife and handed over the same to the police party. Therefore, Section 27 of the Evidence Act cannot be pressed in service. Present case seems to be of confession which cannot be read/proved against the accused appellant as the same is barred by Sections 25 and 26 of the Evidence Act. 14. Moreover, there is no public witness regarding recovery of the knife. Moreover, knife was never sent to the FSL to say that it was used in crime, therefore, recovery of knife itself is highly doubtful. 15. Undisputedly, as per prosecution story, dead body of Sugra was found lying in the vegetable field near Gurudwara Nanka Sahib at about 08.00 a.m. on 06.03.2006. 16. As per statement of Safi Ahmad (PW6), he saw Sugra (deceased) and sole accused appellant, herein, at about 10.30 p.m. in the previous night i.e. on 05.03.2006 near Dak Bungalow. 15. Undisputedly, as per prosecution story, dead body of Sugra was found lying in the vegetable field near Gurudwara Nanka Sahib at about 08.00 a.m. on 06.03.2006. 16. As per statement of Safi Ahmad (PW6), he saw Sugra (deceased) and sole accused appellant, herein, at about 10.30 p.m. in the previous night i.e. on 05.03.2006 near Dak Bungalow. Accused/appellant, herein, was never seen in the company of the deceased Sugra near the spot wherefrom her dead body was recovered. If there is no direct evidence against the accused and case is roaming around circumstantial evidence or last seen evidence or evidence of extra judicial confession, then such evidence must be scrutinized with great care and caution. 17. In our considered opinion, last seen evidence of Safi Ahmad PW6 that he saw the accused as well as Sugra walking near Dak Bungalow, which is far away from the spot wherefrom dead body was recovered, seems to be highly weak type of evidence justifying the conviction of the accused. 18. This is settled position of law that every accused should be presumed to be innocent unless his guilt is proved beyond reasonable doubt. The weak and floating statements of Safi Ahmad PW6, in our considered opinion, are not sufficient to hold the appellant guilty. 19. As far as other witnesses are concerned, they are saying that Sugra was having illicit relation with accused appellant. At one place, prosecution tried to prove that in the past, Sugra had fight with Raju accused, herein, therefore, Raju extended life threat to Sugra, therefore, Raju might have murdered Sugra and yet at another place, Safi Ahmad PW6 has stated that Sugra was seen walking with accused in the night of 05.03.2006 near Dak Bungalow. If both had fight, there seems to be no occasion for Sugra to go with the accused in the night of 05.03.2006. 20. In the case where prosecution case rests upon circumstantial evidence, last seen evidence or extra judicial confession, motive plays an important role. In the present case, even motive could not be proved. 21. In view of the discussion made hereinbefore, we are of the considered opinion, that recovery of knife is highly doubtful and prosecution could not prove its story beyond reasonable doubt, therefore, conviction of the accused would not be justified and safe. 22. Consequently, appeal succeeds and is hereby allowed. In the present case, even motive could not be proved. 21. In view of the discussion made hereinbefore, we are of the considered opinion, that recovery of knife is highly doubtful and prosecution could not prove its story beyond reasonable doubt, therefore, conviction of the accused would not be justified and safe. 22. Consequently, appeal succeeds and is hereby allowed. Impugned judgment and order is hereby set aside. Accused appellant stands acquitted from all the charges levelled against him in the present case. Accused appellant is on bail. He need not to surrender. His personal bond and sureties stand discharged. 23. Let copy of this judgment along with LCR be sent to the learned trial court for information and compliance.