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2015 DIGILAW 384 (UTT)

MAN SINGH v. STATE OF UTTARANCHAL

2015-08-04

U.C.DHYANI

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JUDGMENT U.C. Dhyani, J. (Oral) 1. One Kulwant Singh r/o Bhagatpur Tadiyal, Pirumadara, Nainital (not examined) wrote a complaint to Station Officer, Police Station, Ramnagar on 07.07.1997, enumerating the facts contained therein, that one Smt. Dhan Kaur w/o Nazir Singh, r/o Hathidangar, Pirumadara, police station, Ramnagar died on 07.07.1997, at 02:00 A.M. The reporter also mentioned that the dead body of Dhan Kaur was lying in the house of Man Singh (accused-appellant). It was alleged that on 14.06.1997, at 09:10 A.M., an explosion took place in the house of Man Singh, as a consequence of which, Dhan Kaur died. Deceased was aged 75 years, sick & frail and remained under the treatment in Ramnagar hospital for quite sometime and ultimately passed away. On the basis of such criminal complaint, criminal law was set into motion by registering chik FIR. 2. After investigation of the case, two charge-sheets were submitted against the accused-appellant on two different dates. One was filed in respect of offences punishable under Section 5 of the Explosives Act and under Section 326 IPC and another under Section 304 IPC. Both the charge-sheets were committed to the Court of Sessions for trial. When the trial began and prosecution opened it’s case, charge for the offences punishable under Section 304 IPC and under Section 3 of the Explosive Substances Act was framed against accused-appellant, who pleaded not guilty and claimed trial. 3. PW1 Dr. Narendra Singh, PW2 Fauja Singh, PW3 Gurdev Singh, PW4 Patram Singh, PW5 S.I. Umiram Arya and PW6 H.C. Mahesh Pal Singh 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 accused 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 / II F.T.C., Nainital, vide judgment and order dated 22.11.2003, acquitted the accused-appellant of the charge of offence punishable under Section 3 of the Explosive Substances Act. He was also acquitted of the charge of offence punishable under Section 304 IPC, but, in its stead, he was convicted under Section 304A IPC and was sentenced to undergo rigorous imprisonment for a period of one year and six months alongwith a fine of Rs. 500/-. Aggrieved against his conviction and sentence, accused-appellant preferred present criminal appeal. 4. He was also acquitted of the charge of offence punishable under Section 304 IPC, but, in its stead, he was convicted under Section 304A IPC and was sentenced to undergo rigorous imprisonment for a period of one year and six months alongwith a fine of Rs. 500/-. Aggrieved against his conviction and sentence, accused-appellant preferred present criminal appeal. 4. PW1 examined the injuries of the victim on 14.06.1997, at 02:15 P.M. at Combined Hospital, Ramnagar. He found following injuries on the person of the victim: i) Traumatic amputation of right hand index, middle, ring finger. ii) Traumatic amputation of index, middle, ring finger and little finger left hand. iii) Lacerated wound over forehead. Dressed. The Medical Officer opined that the patient was in a state of shock because of blast injury. Patient was kept under observation and was referred to Orthopedic Surgeon. Police was also informed. 5. PW2 stated, in his examination-in-chief, that about five years ago (of his deposition), at 09:00 A.M., when he was sitting alongwith his father and brother, he saw and heard that an explosion took place in the house of accused. PW2 rushed to the place of incident, only to find that Dhan Kaur (victim) has sustained injuries because of such explosion. Victim informed PW2 that accused indulged in illegal poaching of wildlife and, therefore, used to manufacture hand grenades. Victim died after 20-22 days of such an incident. In his cross-examination, PW2 stated that sulphur fumes were emanating from the place of incident. PW2 stated that the victim could hardly speak. She was taken to hospital by one Harbeer Kaur, wife of the accused. 6. PW3 is the real brother of PW2. He also supported the statement of PW2 to say that when they were sitting together they heard that an explosion has taken place in the house of the accused. PW3 alongwith PW2 rushed to the place of incident only to find that Dhan Kaur has sustained injuries out of such explosion. PW3 also stated that Man Singh used to sell hand grenades illegally. Man Singh and his wife took the victim to hospital for treatment. 7. PW4 is the adopted son of the accused. He did not support the prosecution story and was declared hostile. He was cross-examined by A.D.G.C.(Crl.). Nothing has come in the cross-examination of PW4 to suggest that he was deliberately not supporting the prosecution story. 8. Man Singh and his wife took the victim to hospital for treatment. 7. PW4 is the adopted son of the accused. He did not support the prosecution story and was declared hostile. He was cross-examined by A.D.G.C.(Crl.). Nothing has come in the cross-examination of PW4 to suggest that he was deliberately not supporting the prosecution story. 8. PW5 was posted as Sub Inspector in police stations, Pirumadara and Ramnagar on the date of incident. A person came to him and informed that Dhan Kaur was admitted in Combined Hospital, Ramnagar in an injured state. PW5 went to the hospital and found that the victim was in a position to speak. Victim informed PW5 that an explosion took place on 14.06.1997, at 09:00 A.M., as a consequence of which, she sustained injuries in her fingers and remaining parts of the body. Victim did not elaborate further. In other words, she did not say anything about the alleged commission of crime by the accused-appellant. Whereas PW2 and PW3 have stated that the victim was not in a position to speak, PW5 has categorically stated that not only the victim was in a position to speak, but also told him about the incident, but did not utter a single word about the role of the accused in the commission of crime. PW5 also proved copy of G.D. and affected the arrest of accused. PW5 admitted in his cross-examination that he did not prepare site plan of the place where the incident took place. PW5 also admitted that when he proceeded to investigate the case, no FIR was registered by then. 9. Although the Medical Officer who conducted the postmortem of the deceased was not brought into the witness box, yet learned counsel for the accused before the court below, made an endorsement on the postmortem report - ‘formal proof is dispensed with’. Cause of death of the victim was due to septicaemic shock as a result of ante mortem septic wounds. 10. PW6, who was posted as Head Moharrir in police station, Ramnagar on 14.06.1997, proved the original G.Ds. as Ext. Ka-4 and Ext. Ka-5. In his cross-examination, PW6 stated that no information was received in the police station, Ramnagar, before a ward boy came and supplied such an information in the police station concerned. 11. The evidence tendered by prosecution does not inspire confidence. as Ext. Ka-4 and Ext. Ka-5. In his cross-examination, PW6 stated that no information was received in the police station, Ramnagar, before a ward boy came and supplied such an information in the police station concerned. 11. The evidence tendered by prosecution does not inspire confidence. There are glaring contradictions and omissions in the statements of PW2 & PW3 vis-à-vis statements of PW5 and PW6. No evidence has been offered to show that the appellant kept the explosive substance in his house. When the victim was taking out wheat flour from a container in the kitchen, an explosion allegedly took place. Whether the same was the handiwork of the accused-appellant or anybody else, has not been established. Merely because the same happened in the house of the accused-appellant where his mother, wife and adopted son were living, it cannot be presumed that the accused-appellant kept such explosive substance in his house. In other words, presumption cannot be drawn that since the explosion took place in the house of the accused-appellant, therefore, it was the accused-appellant, who kept that explosive substance in his kitchen. The said explosion took place on it’s own and accused-appellant had no role to play in it. The accused-appellant may be a person of criminal antecedents, as has been argued by learned counsel for the State that the accused-appellant was a poacher and, therefore, used to keep such explosive substances to kill wildlife, but it is the settled principle that mere suspicion cannot partake the nature of proof. Learned court below has committed a manifest error in holding the accused-appellant guilty of offence punishable under Section 304A IPC, especially when it has exonerated the accused-appellant of the charge of offence punishable under Section 3 of the Explosive Substances Act. Moreover, there are many glaring infirmities in the investigation. Although learned counsel for the State submits that no benefit can be given to the accused-appellant, if the investigation suffers from legal lacunae. In any manner, it is not a case in which the conviction of accused-appellant could sustain. Since the prosecution has not been able to prove the case against the accused-appellant beyond a shadow of reasonable doubt, therefore, interference is required in the impugned judgment and order. 12. The criminal appeal is, therefore, allowed. The conviction and sentence awarded to the appellant Man Singh by the court below is hereby set aside. Since the prosecution has not been able to prove the case against the accused-appellant beyond a shadow of reasonable doubt, therefore, interference is required in the impugned judgment and order. 12. The criminal appeal is, therefore, allowed. The conviction and sentence awarded to the appellant Man Singh by the court below is hereby set aside. He is acquitted of the charge levelled against him by giving him benefit of doubt. Appellant is on bail. His bail bonds are cancelled and sureties stand discharged. He need not surrender. 13. Let a copy of this judgment alongwith the lower court records be sent to the Court below for compliance.