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2015 DIGILAW 484 (UTT)

RADHIKA DEVI v. STATE OF UTTARAKHAND

2015-10-01

ALOK SINGH, SERVESH KUMAR GUPTA

body2015
JUDGMENT : Alok Singh, J. (Oral) Present appeal is preferred assailing the judgment and order dated 5.3.2011 passed by the Sessions Judge, Almora in Sessions Trial No.17 of 2006, whereby the appellant Radhika Devi was held guilty for the offences punishable under Sections 302 and 504 IPC; she was awarded life imprisonment with fine of Rs.500/- under Section 302 IPC; she was further sentenced to undergo R.I. for a period of six months under Section 504 IPC. 2. Since, none was appearing for the appellant, therefore, we have requested Ms. Charanjeet Kaur, Advocate to assist us as amicus curiae. She has accepted our request. Copy of the paper book was handed over to her. 3. We have heard Ms. Charanjeet Kaur, learned amicus curiae for the appellant, Mr. A.S. Gill, learned Deputy Advocate General assisted by Mr. Milind Raj & Ms. Farida Siddiquie, Brief Holders for the State, and have carefully perused the record. 4. Brief facts of the present case inter alia are that PW1 Nand Ballabh got registered a report with Patti Patwari Bhura, Tehsil Bhanoli, District Almora on 3.8.2005 stating therein that on the same day at about 6 AM, his daughter Km. Anita (deceased) along with her mother Smt. Shanti Devi W/o Trilok Singh and Prema Devi W/o Puran Chand, Km. Reena D/o Parmanand, went to jungle to collect grass for fodder; accused having seen them cutting the gross, started abusing them; accused Radhika Devi threw one stone towards Anita which hit on the head of Anita whereby Anita started bleeding from the head and fell down and died on the spot. This information was supplied to PW1 (complainant) by Geeta Devi W/o Gokul Chand and Smt. Basanti Devi W/o Puran Chand, PW2 & PW4 respectively. 5. Post-mortem was conducted on the dead body of Anita on 4.5.2005 by PW5 Dr. S.S. Bhardwaj. Having investigated the matter, chargesheet was submitted against the appellant for the offences punishable u/s 302 and 504 IPC. After committal of the trial to the Sessions Court, Charges were framed for the offence punishable u/s 302 and 504 IPC. Appellant denied the charges and claimed the trial. 6. To prove the prosecution story, prosecution has produced PW1 Nand Ballabh, PW2 Gita Devi, PW3 Prema Pandey, PW4 Basanti Devi, PW5 Dr. S.S. Bhardwaj and PW6 Shashti Dutt. After committal of the trial to the Sessions Court, Charges were framed for the offence punishable u/s 302 and 504 IPC. Appellant denied the charges and claimed the trial. 6. To prove the prosecution story, prosecution has produced PW1 Nand Ballabh, PW2 Gita Devi, PW3 Prema Pandey, PW4 Basanti Devi, PW5 Dr. S.S. Bhardwaj and PW6 Shashti Dutt. Thereafter, from the side of defence, DW1 Smt. Munni Pande and DW2 Radhika Devi (accused/appellant) were examined. The Court also summoned and examined Haruli Devi as CW1 and Shanti Devi as CW2. Thereafter, statement of the accused was recorded u/s 313 Cr.P.C. 7. Thereafter, learned Trial Court was pleased to hold the appellant guilty and was further pleased to sentence the appellant as narrated hereinbefore. 8. It is important to mention herein that PW1 Nanda Ballabh (complainant) is not an eyewitness of the incident and whatever he has stated in the first information report, was on the basis of information received by him from Smt. Geeta Devi (PW2) and Smt. Basanti Devi (PW4). 9. PW2 Smt. Geeta Devi, PW3 Prema Devi and PW4 Basanti Devi, while appearing in the witness box, have stated that all of them were cutting grass in the jungle; appellant came on the spot and started abusing them, whereupon Anita requested the appellant not to abuse them, however, appellant (Radhika Devi) picked up a stone weighing about 2-3 kilograms and threw that stone on the Anita; stone hit Anita on her head whereby Anita fell on the ground rolled downward and died on the spot. Thereafter, accused/appellant picked up and carried the stone, soaked with the blood, along with her. 10. CW1 and CW3, while appearing in the witness box, have stated that accused/appellant has thrown the stone from the upper side of hill which hit on the head of Anita whereby Anita fell down and died on the spot. 11. Neither CW1 nor CW3 have stated that after being hit by the stone, Anita rolled down nor have stated that after the death of Anita, appellant/accused picked the stone and taken the stone with her. Therefore, there seems to be contradiction in the statements of two set of witnesses; viz. on the one hand, PW1, PW2 and PW3 and on the other hand, CW1 and CW3. 12. CW2 was declared hostile as she did not support the prosecution story. 13. Therefore, there seems to be contradiction in the statements of two set of witnesses; viz. on the one hand, PW1, PW2 and PW3 and on the other hand, CW1 and CW3. 12. CW2 was declared hostile as she did not support the prosecution story. 13. The very important aspect of the matter is that the stone, whereby Anita was allegedly hit, was not recovered by the Investigating Officer. It seems that to explain as to why the recovery was not made of the stone whereby Anita was killed, PW1, PW2 and PW3 have stated that accused/appellant, after the death of Anita, had picked up the stone and had carried the stone with her. This statement seems to be highly doubtful. 14. There is yet another aspect of the matter, i.e. as per statement of PW5 Dr. S.S. Bhardwaj, dead body of Anita was having following injuries:- 1. 9 x 6 cm. abraded contusion on right lumbar.1 x 2 cm. deep lacerated wound present over middle of contusion. 2. 2 x 0.1 cm. lacerated wound over forehead 1 cm above right upper eyebrow. Clotted blood present on wound. 3. 2 x 3 abrasion present over right temporal region. 4. 2 x 1.5 cm. abraded contusion present over right oval band neck. 5. 4 x 5 cm. contusion present over right parietal lumbar. 6. 2 x 3 cm. abraded contusion present over right knee. 7. 2 x 2.5 cm. abraded contusion present over upper aspect of right foot. 8. 6 x 5 cm. abraded contusion over left upper ear 8 cm. from elbow. 9. 12 x 2 cm. skin deep lacerated wound present over skull oblique extending from middle of right ear 11 cm. away from right ear clotted blood present over. 10. 3 x 1 cm, lacerated wound present over right side of scalp deep 12 cm. from left ear. 11. Several scratches all over the back. 15. In our opinion, 11 injuries were not possible by one hit of stone. As per the statement of PW5 Dr. S.S. Bhardwaj, all the injuries on the body of Anita were possible if Anita has fallen down in the hilly tracks. 16. The possibility that while cutting grass, Anita might have fallen and might have sustained injuries, cannot be ruled out completely. Therefore, we are of the opinion that prosecution is not successful in proving the prosecution story beyond reasonable doubt. 16. The possibility that while cutting grass, Anita might have fallen and might have sustained injuries, cannot be ruled out completely. Therefore, we are of the opinion that prosecution is not successful in proving the prosecution story beyond reasonable doubt. Therefore, appeal deserves to be allowed and appellant deserves acquitted. Servesh Kumar Gupta, J. (Oral) 18. While having concurrence with my learned Brother, I would like to add a little bit. If we carefully go through the statement of PW4 Basanti Devi, who herself has disclosed to be the eyewitness of the incident, then we find her statement deposing that the place, where the incident occurred, even where the victim was cutting grass, is not slopey in nature, making any individual prone to roll down from the hills. Rather, she has specifically stated that the place of incident is a plain area, although, on the second thought, she has further stated that the place of incident is somewhat prone for rolling down. 19. If we accept the statement of PW4 Basanti Devi, then for any prudent man, it is difficult to draw the conclusion, that as many as -11- injuries, found on the body of deceased by Dr. S.S. Bhardwaj, can be suffered by a single blow of stone. This fact further creates a doubt about the manner in which the incident is alleged to have happened. 20. So, in view of the discussions made hereinbefore, the appeal is allowed. Impugned judgment and order dated 5.3.2011 passed by the Sessions Judge, Almora is set aside. Appellant is acquitted from the charges levelled against her. Appellant is on bail. She need not to surrender. Her personal bonds are cancelled and sureties are discharged. 21. Let a copy of this judgment along with LCR be sent back to the Trial Court for information and record.