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2015 DIGILAW 175 (UTT)

ANKUR CHAUDHARY v. STATE OF UTTARAKHAND

2015-03-26

ALOK SINGH, SERVESH KUMAR GUPTA

body2015
JUDGMENT Hon. Hon’ble Alok Singh, J. (Oral) Present appeal is filed assailing the judgment and order dated 25.10.2010 passed by learned Additional Sessions Judge, Rishikesh in Sessions Trial No.200 of 2007, State v. Ankur Chaudhary & others, whereby the accused Ankur Chaudhary was held guilty for the offences punishable u/s 302/34 and 201 IPC whereas co-accused Vishnu and Mahipal were held guilty for the offences punishable u/s 201 and 120-B IPC. Accused Ankur Chaudhary was sentenced to undergo imprisonment for life and to pay fine of Rs.10,000/- for the offences under Section 302 r/w Section 34 IPC; to undergo three years’ simple imprisonment and to pay fine of Rs.2,000/- for the offence under Section 201 IPC; accused Vishnu and Mahipal were sentenced to undergo three years’ imprisonment and to pay fine of Rs.2,000/- each for the offence under Section 201 IPC; to undergo life imprisonment and to pay fine of Rs.10,000/- each for the offence under section 120-B IPC. 2.Brief facts of the present case, inter alia, are that at about 9:30 PM of 10.9.2007, someone made a telephonic call at P.S. Rishikesh that the dead body of Rinku was lying on the bed in the house of Smt. Omwati. Having received such call, PW8 S.I. Om Prakash Arya along with other police personnel rushed towards the house of Smt. Omwati and found the dead body of deceased Rinku lying on the bed and the room was found locked from outside; police party got broken the lock, entered in the room and took the dead body in its custody which was immediately shifted to the hospital where Rinku was declared brought dead. 3.PW1 Mintu got registered an FIR with P.S. Rishikesh, District Dehradun on the next day i.e. on 11.9.2007 at 11.30 A.M., which has resulted into the Chick FIR Ex.Ka-4 As per the report, deceased Rinku, real brother of PW1, went in the house of Smt. Omwati, mother of accused Mahipal, at about 7 PM on 10.9.2007,; deceased was found dead on the bed in the house of Smt. Omwati and the room was locked from outside; the lock was got opened by the police; PW1 had every apprehension and suspicion that firstly, alcohol might have been given to drink to his brother Rinku and thereafter he might have been killed by strangulating him by Mahipal, Vishnu and Ankur (friends of Mahipal) as well as Ms. Mangi, D/o one Jaga, who were inimical to Rinku. Therefore, after getting the report registered, appropriate action may be taken against the accused persons. 4.As per the post-mortem report, cause of death of Rinku (deceased) was strangulation. 5.Having investigated the matter, chargesheet was filed against Ankur Chaudhary, Mahipal, Vishnu and Kiran @ Mangi, however since Kiran @ Mangi was declared juvenile, therefore, her case was referred to the Juvenile Justice Board. 6.To prove the prosecution story, prosecution has examined PW1 Mintu, PW2 Som Nath Singh, PW3 Ramesh Chand, PW4 Kaluwa (father of deceased), PW5 Jagdish Kumar, PW6 Dr. K.P. Joshi, PW7 H.C. Lakhan, PW8 S.I. Om Prakash Arya, PW9 Shanti Prasad Dimri and PW10 SSI B.S. Rawat. 7.Thereafter, the statements of accused persons were recorded u/s 313 Cr.P.C. 8.Having perused the entire material available on record, learned Trial Judge was pleased to hold the accused Ankur Chaudhary guilty for the offences punishable under section 302 r/w section 34 and 201 IPC and was further pleased to hold the co-accused Vishnu and Mahipal guilty for the offences punishable u/s 201 and 120-B IPC. All the accused persons were sentenced as stated hereinbefore. 9.Feeling aggrieved, appellants have filed present appeal assailing their conviction and sentence. 10.We have heard Mr. Lokendra Dobhal, learned counsel for the appellants and Mr. A.S. Gill, learned Deputy Advocate General assisted by Mr. G.S. Negi, learned Brief Holder for the State, and have perused the record. 11.As per the statement of PW8 S.I. Om Prakash Arya, police received telephonic message that Rinku was laying dead on the bed in the house of Smt. Omwati; police party reached in the house of Smt. Omwati at about 9:30 PM of 10.9.2007; dead body of deceased was seen lying on the bed in the house of Smt. Omwati; room was found locked; lock was broken by the police party; dead body of Rinku was taken into custody by the police party and was shifted to the hospital forthwith where he was declared brought dead. He has further stated that after the arrest, Mahipal S/o Omwati got opened the Almirah of the same room and handed over the Chunni to the police party whereby the deceased Rinku was said to be strangulated and killed. The said Chunni was kept in the sealed cover on the spot. He has further stated that after the arrest, Mahipal S/o Omwati got opened the Almirah of the same room and handed over the Chunni to the police party whereby the deceased Rinku was said to be strangulated and killed. The said Chunni was kept in the sealed cover on the spot. He has further stated that seal of the packet, wherein Chunni was kept, was opened in the Court at the time of evidence wherefrom one white-colour Chunni having flowers of red and yellow colour was taken out. 12.PW4 Kaluwa, father of deceased Rinku, has stated that he also went along with the police in the house of Smt. Omwati where the dead body of his son Rinku was found; there was a Chunni of green colour on the body of Rinku which was taken into custody by the police. 13.As per the statement of PW8 SI Om Prakash Arya, Chunni was handed over to the police by opening the door of Almirah of the same room by accused Mahipal, whereas as per the statement of PW4 Kaulwa, Chunni was recovered from the dead body. Moreover, as per PW4, Chunni was of green colour whereas according to the version of PW8, Chunni was of white colour. Therefore, the recovery of Chunni seems to be highly doubtful. 14.There is another aspect of the matter. No memo was prepared by the police party for breaking the lock which was hanging on the door of the room inside which the dead body of deceased was laying. Nor broken lock was taken into the police custody. Nor any inquest report was prepared on the spot for the dead body of deceased Rinku. 15.There is also no explanation that if the dead body was recovered in the evening of 10.9.2007 at about 9:30 PM in the presence of PW1 and PW4, real brother and father of the deceased, then as to why the report was lodged with the police on next day i.e. on 11.9.2007 at 11:30 A.M. and as to why F.I.R. was not registered in the same night. It is important to mention herein that Police Station Rishikesh is not so far away from the spot wherefrom dead body was recovered. 16.None has seen the accused persons committing murder of deceased. It is important to mention herein that Police Station Rishikesh is not so far away from the spot wherefrom dead body was recovered. 16.None has seen the accused persons committing murder of deceased. The only evidence of PW1 Mintu and PW2 Som Nath Singh is that they have seen Rinku entering in the house of Smt. Omwati. It is significant to mention here that neither Ankur Chaudhary nor Vishnu reside in the same house. Nobody has seen both of them present in the house when the dead body was allegedly recovered. Moreover, there is no evidence that Ankur Chaudhary or Vishnu had hatched any conspiracy in killing Rinku deceased and as to why such conspiracy was hatched and as to where and when, such conspiracy was hatched. 17.The other aspect of the matter suggests that even Mahipal was not found in the house when dead body of Rinku was found in the house of Smt. Omwati, the mother of Mahipal. Had Mahipal been present on the spot at the time of recovery of dead body, perhaps the burden of proof would have been shifted on Mahipal u/s 106 of the Evidence Act. 18.We find force in the submission of Mr. Lokendra Dobhal that there is no substantial evidence to prove that the dead body of deceased was recovered from the house of Smt. Omwati. Had dead body been recovered from the house of Smt. Omwati by breaking lock, police would have prepared memo of breaking the lock and would have taken lock in police custody. Mr. Lokendra Dobhal seems to be justified in saying that if Rinku was already dead, his dead body ought not have been shifted to the hospital without inquest. This is not the case of PW8 S.I. Om Prakash Arya, PW1 Mintu or PW4 Kaulwa that they were not sure as to whether Rinku had died or alive, therefore, he was shifted to the hospital. According to Mr. Dobhal, deceased Rinku was found murdered somewhere else and his dead body was shifted to the mortuary, where the inquest report was prepared and thereafter ante-time report was got registered. According to Mr. Dobhal, deceased Rinku was found murdered somewhere else and his dead body was shifted to the mortuary, where the inquest report was prepared and thereafter ante-time report was got registered. 19.A very strange thing which has occurred in the present case is that learned Sessions Judge has convicted Ankur Chaudhary for the offence under Section 302 IPC with the aid and assistance of Section 34 IPC despite the fact that no other accused was found involved in the murder of deceased Rinku. 20.As we have held hereinbefore that conspiracy is also not proved, therefore the offence of Section 120-B IPC is not attracted at all in this case. 21.In view of the above, we are of the considered view that the prosecution has failed to prove the prosecution story beyond doubt. Therefore, the conviction and sentence, as awarded to the appellants, seems to be totally unjustified. Consequently, the appeal is allowed. Impugned judgment and order dated 25.10.2010, passed by learned Additional Sessions Judge, Rishikesh, in S.T. No.200 of 2007, is hereby set aside. All the appellants stand acquitted of the charges levelled against them. 22.Appellants are on bail. They need not to surrender. Their bail bonds are cancelled and sureties are discharged. 23.Let a copy of this judgment and order along with L.C.R. be sent back to the Court concerned for information.