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Uttarakhand High Court · body

2015 DIGILAW 248 (UTT)

JASVINDER SINGH v. STATE OF UTTARANCHAL

2015-05-19

U.C.DHYANI

body2015
JUDGMENT U.C. Dhyani, J. (oral) PW1 set the criminal law into motion by writing a complaint on 08.08.2001, which was addressed to SHO, Rudrapur, enumerating the facts contained therein, that informant’s uncle Babbu, who was a driver in a transport company, had some altercation with the conductor Jasvinder Singh on 31.07.2001, sometimes in the night. Accused Jasvinder Singh assaulted the victim on the head with an iron rod, as a consequence of which, victim got seriously injured and became unconscious. Victim was taken to Government Hospital, Rudrapur, whereupon his case was referred to Haldwani. During the course of his treatment on 07.08.2001, informant’s uncle died. The incident was witnessed by Mohd. Rais and others. 2. The incident allegedly took place in the intervening night of 31.07.2001/01.08.2001, sometimes in the night, but the FIR was lodged only on 08.08.2001, at 06.05 P.M. Whereas the distance between the place of incident and the police station concerned is only half kilometer, there appears to be delay in lodging FIR. This Court will examine the fact as to whether the delay in lodging the FIR was sufficiently explained or not, in the subsequent paragraphs of the judgment. 3. After the investigation, a charge-sheet was submitted against the accused-appellant for the offence punishable under Section 304 IPC. The case was committed to the Court of Sessions. When the trial began and prosecution opened it’s case, charge for the offence punishable under Section 304 IPC was framed against the accused-appellant, who pleaded not guilty and claimed trial. 4. PW1 Suresh and PW2 Neksi were examined on behalf of the prosecution. Incriminating evidence was put to the accused under Section 313 of Cr.P.C., in reply to which he said that he was falsely implicated in the case. No evidence was given in defence. After considering the evidence on record, learned Addl. Sessions Judge / I F.T.C., Udham Singh Nagar (Rudrapur), vide judgment and order dated 16.12.2003, convicted the accused-appellant under Section 304(2) IPC and sentenced him to undergo rigorous imprisonment for a period of ten years. Feeling aggrieved against his conviction and sentence, present criminal appeal was preferred by the accused-appellant. 5.PW1 is nephew of the deceased. In his examination-in-chief, PW1 stated that he knew accused Jasvinder. He was conductor with his uncle Babbu. On 31.07.2001, at about 10:30 P.M. in the night, PW1 went to his uncle at Galla Mandi (grain market) to take money. Feeling aggrieved against his conviction and sentence, present criminal appeal was preferred by the accused-appellant. 5.PW1 is nephew of the deceased. In his examination-in-chief, PW1 stated that he knew accused Jasvinder. He was conductor with his uncle Babbu. On 31.07.2001, at about 10:30 P.M. in the night, PW1 went to his uncle at Galla Mandi (grain market) to take money. PW1’s uncle, in turn, asked Jasvinder for money, on which some altercation took place between PW1’s uncle and the accused. PW1’s mother also came at the place of incident in the meanwhile. Accused took out rod from a truck and gave a blow with the same on the head of PW1’s uncle and fled away. Injured was taken to Government Hospital immediately. But the hospital was closed. Again in the morning at 06:30 A.M., injured was got admitted in the hospital. Injured was again taken to a private Nursing Home at Haldwani, where he died after seven days. Thereafter, PW1 lodged the FIR, which was exhibited as Ext. A-1. 6. In his cross-examination, PW1 said that his uncle used to live at a distance of ¾ km. from his house. He lived alone in his house. There was no one in his family. PW1 also said that when he reached at the place of incident, he saw both of them consuming liquor together. 7. PW2 is sister-in-law of the deceased Babbu. In her examination-in-chief, PW2 stated that Babbu was a truck driver. Accused Jasvinder was conductor with Babbu. On the fateful day, PW2 sent her son Suresh 4 (PW1) to bring money from Babbu at Galla Mandi. After sometime PW2 also went to Galla Mandi. When Babbu demanded money from the accused, a scuffle took place between the two. Accused hit the victim three-four times with the rod. 8. In the cross-examination, PW2 stated that she went to the place of incident after half an hour after sending Suresh there. Suresh had left at about 10:00 P.M. Deceased and accused were taking drinks together at the time of incident. PW2 also stated that victim was assaulted with rod in her presence. PW1 and PW2 both were present at the time of incident. Their neighbour Devraj also came there during the scuffle. PW2 further stated that the victim remained in the hospital for seven days. Report was lodged after the death of the victim. PW2 also stated that victim was assaulted with rod in her presence. PW1 and PW2 both were present at the time of incident. Their neighbour Devraj also came there during the scuffle. PW2 further stated that the victim remained in the hospital for seven days. Report was lodged after the death of the victim. 9.The examination-in-chief and cross examination of aforesaid two witnesses will only reveal that the delay in lodging the FIR has not been sufficiently explained by the prosecution witnesses. Both of them stated that the FIR could be lodged only after the death of the victim in the hospital. Why the FIR was not promptly lodged, goes unexplained. If PW1 or PW2 really witnessed the incident, they or any of them should have immediately reported the matter to the police. But the same was not done. It means that either PW1 or PW2 or none of them was present on the spot, none of them witnessed the occurrence or if any of them was there, they were callous in their attitude unlike a law abiding citizen. Either way, the same helped prosecution. It, therefore, follows on the basis of above discussion that the delay of eight days in lodging the FIR has not been sufficiently explained by the prosecution witnesses, i.e., PW1 and PW2. 10.The prosecution documents in the instant case have not been proved by the prosecution. Although the genuineness of those documents was admitted by learned counsel for the accused before the trial court, but the contents of the same were denied. The contents of those documents have, therefore, not been proved by the prosecution. The same, therefore, cannot be read in evidence. 11. Mohd. Rais, who is stated to have witnessed the incident, was not examined by the prosecution. He was an important witness, who could have thrown light on the incident, but unfortunately such witness was conspicuous by his absence in the witness box. 12. A perusal of the postmortem report will reveal that the deceased sustained stitched wounds on front scalp and temporal area of scalp etc. The cause of death of the victim was coma as a result of ante mortem head injury. It has not been brought on record, where the injured was given first aid and where his wounds were stitched. A perusal of the postmortem report will reveal that the deceased sustained stitched wounds on front scalp and temporal area of scalp etc. The cause of death of the victim was coma as a result of ante mortem head injury. It has not been brought on record, where the injured was given first aid and where his wounds were stitched. It has already been stated above that the contents of the documents, including the postmortem report, have not been proved by the prosecution, and in the absence of the same, prosecution story suffers from a grave lacuna. Link evidence, in this way, is missing, which becomes fatal to the prosecution story. 13. Above all, it has not been proved on record as to why accused-appellant will kill the victim? In other words, no motive was assigned as to why the accused-appellant would have killed the victim. Out of the two witnesses produced by the prosecution, the first one is the nephew of the deceased and the second one is sister-in-law of the deceased. It has come in the evidence of PW1 and PW2 that the victim and accused-appellant were taking liquor together on the fateful day, therefore, the possibility of self-inflicted injury on the head of the victim cannot be ruled out. 14.It appears that the incident did not take place in the manner the same was projected by the prosecution witnesses. 15. Prosecution has not been able to prove the case against the accused-appellant beyond a shadow of reasonable doubt. In the facts and circumstances of the case, accused-appellant should be, and is, granted benefit of doubt. 16.Criminal appeal is, therefore, allowed. Conviction and sentence awarded against the appellant by the court below is hereby set aside. He is acquitted of the charge framed against him. He is on bail. His bail bonds are cancelled and sureties stand discharged. He need not surrender. 17. Let a copy of this judgment alongwith the lower court records be sent to the Court below for compliance.