Research › Search › Judgment

Uttarakhand High Court · body

2015 DIGILAW 506 (UTT)

MUKESH v. STATE OF UTTARAKHAND

2015-10-15

ALOK SINGH, SERVESH KUMAR GUPTA

body2015
JUDGMENT : Per : Alok Singh, J. Present appeal is preferred against the judgment and order dated 12.5.2011, passed by the Sessions Judge, Pauri Garhwal in Sessions Trial No. 09/2006 (Old No. 7/1998), Case Crime No. 01/97, under Section 328, 394, 364, 307, 302, 201 IPC, Challani Patti Bijlot, Tehsil Dhumakot, District Pauri Garhwal, whereby appellant was held guilty for the offences punishable under Section 328, 394, 364, 307, 302, 201 IPC and was awarded life imprisonment and fine of rupees five thousand under Section 302 IPC; RI for a period of ten years and fine of rupees four thousand under Section 364 IPC; RI for a period of five years and fine of rupees two thousand under Section 394 IPC; RI for a period of five years and fine of rupees three thousand under Section 328 IPC; RI for a period of three years and fine of rupees three thousand under Section 307 IPC and RI for a period of three years and fine of rupees two thousand under Section 201 IPC. 2. 2. The brief facts of the present case, inter alia, are that PW8 Keshar Singh was a taxi driver by profession; in the evening of 26.9.1997, Rajendra Singh Tariyal and Mukesh @ Pushkar (both the accused) came to the house of Keshar Singh PW8 and requested him to toe their jeep UTS-1551 first of all to Ramnagar and, if it is not repaired in Ramnagar, then to Kotdwar; PW8 Keshar Singh did not accede to their request to toe their vehicle in the evening of 26.9.1997, however, he promised them to toe their vehicle in the next morning on 27.9.1997; both the accused stayed with Keshar Singh PW8 at his residence and took dinner and slept there; next morning PW8 Keshar Singh has chained the vehicle UTS-1551 with his taxi UP06-1578 to toe the same from Dhumakot to Ramnagar; PW8 was driving his own vehicle UP06-1578; Rajendra Singh Tariyal was sitting next to him, while on the steering of jeep UTS-1551 was Mukesh, and Mahipal Singh was sitting next to him; PW8 as well as Mahipal Singh and both the accused reached to Ramnagar in the evening of 27.9.1997 and stayed in Ramnagar; next day morning, both the accused requested them to toe their breakdown vehicle to Kotdwar; PW8 and his nephew Mahipal Singh agreed to their request and started their journey towards Kotdwar; they reached Nagina at about 4-5 o’clock in the afternoon of 28.9.1997, where the vehicle of PW8 UP06-1578 also developed some technical problem and, therefore, they halted at Nagina for some time to cure the defect in their vehicle; both the accused offered tea and biscuit to consume to PW8 Keshar Singh as well as to his nephew Mahipal Singh; both of them consumed the biscuit and tea offered by the accused; having consumed the biscuit and tea, they fell unconscious; PW8 could gain his consciousness at about 2-3 o’clock in the intervening night of 28/29.9.1997; he found himself packed in a jute bag; he somehow came out therefrom; he did not find his nephew Mahipal Singh or his car nearby, therefore, he immediately went to his relative Daulat Singh at Kotdwar, wherefrom he went to the hospital for treatment and thereafter went to Police Station Kotdwar and reported the matter to the Police Station Kotdwar on 29.9.1997 at 9.30 PM; Police Station Kotdwar initially registered the Chick FIR as no. Nil of 1997 under Sections 307, 364, 328, 394 IPC; next day morning i.e. on 30.9.1997, secret information was received by the Police Station Kotdwar, whereupon police party left for the destination disclosed by the secret informant at about 5-5.30 AM early in the morning; when the police party reached near BEL Road in the Sidhbali Factory area, they found both the accused present there along with their jeep bearing registration no. UTS-1551; both the accused were apprehended and were disclosed the reasons for their arrest and were arrested vide arrest memo Ex. A-1; both the accused were taken to the police station; both the accused disclosed to the SSI G.S. Dasauni PW1 and SI R.K. Sharma PW2 that they have murdered Mahipal Singh and have thrown his dead body packed in a jute bag in a ditch; both the accused further disclosed to the police party that they could facilitate the recovery of the dead body of Mahipal Singh; PW1 SSI G.S. Dasauni and PW2 SI Ram Kumar Sharma left the police station in the company of both the accused for the destination, wherefrom the accused had promised to facilitate the recovery of dead body of Mahipal Singh; since the area where the dead body was alleged to have been thrown by the accused was within the jurisdiction of revenue police, therefore, Nayab Tehsildar Manmohan Singh (PW6) and Patwari Chandra Prakash Chamoli (PW3) were taken along by the police party; PW8 Keshar Singh was also taken along from the Primary Health Centre, Kotdwar; police party along with the witnesses and PW8 as well as the accused reached to Hanumanti Fatehpur Road; on the request of both the accused, police vehicle was halted; both the accused pointed out that they have thrown the dead body in the ditch; both the accused walked ahead and got recovered the jute bag wherefrom the dead body of Mahipal Singh was recovered; recovery memo of the dead body was prepared on the spot, which was marked as Ex. A-2; thereafter both the accused disclosed that they have concealed the jeep looted from PW8 and Mahipal Singh at Bijnaur; police party was taken to Bijnaur, wherefrom the said jeep was recovered on the pointing out of the accused vide recovery memo Ex. A-5. 3. On the dead body of Mahipal Singh, post-mortem was conducted by Dr. Dinesh Kumar Dimri PW7. 4. A-5. 3. On the dead body of Mahipal Singh, post-mortem was conducted by Dr. Dinesh Kumar Dimri PW7. 4. Since the accused Rajendra Singh Tariyal had expired, therefore, learned Sessions Judge was pleased to frame the charges against Mukesh @ Pushkar (appellant) on 17.8.2001 for the offences punishable under Section 328, 394, 364, 307, 302 and 201 IPC. Accused denied the charges and claimed the trial. 5. To prove the prosecution story, SI G.S. Dasauni PW1; SI R.K. Sharma PW2; Patwari Chandra Prakash Chamoli PW3; SI Yogendra Pal Singh Bhadoriya PW4; Dr. Prem Pal Singh PW5; Nayab Tehsildar Manmohan Singh (the then Supervisor Kanoogo) PW6; Dr. Dinesh Kumar Dimri PW7; Keshar Singh (injured/informant) PW8 and Smt. Savitri Devi PW9 were examined from the prosecution side and thereafter the statement of the accused was recorded under Section 313 of the Code of Criminal Procedure. 6. Having perused the entire material available on the record, learned Trial Judge was pleased to convict and sentence the appellant, as has been narrated hereinbefore. 7. We have heard Mr. Lokendra Dobhal, learned Counsel for the appellant and Mr. D.K. Sharma, learned Additional Advocate General assisted by Smt. Farida Siddiqui, Brief Holder for the State, and have carefully perused the record. 8. PW8 Keshar Singh has proved the FIR version and has stated that in the evening of 26.9.1997, both the accused came to his house; accused Rajendra Singh Tariyal was known to him since both of them were drivers; both the accused have told him that their vehicle has developed some technical problem and has broken down, therefore, he should toe his vehicle first of all to Ramnagar and, if it is not repaired at Ramnagar, then to Kotdwar; he refused to toe the vehicle in the evening and requested them to stay in the night at his residence; both the accused stayed with him, took the dinner and slept in his residence; next day morning on 27.9.1997, he chained the vehicle no. UTS-1551 with his taxi UP06-1578 and proceeded towards Ramnagar along with both the accused and his nephew Mahipal Singh; they reached Ramnagar in the evening; PW8 and his nephew Mahipal Singh (deceased) stayed in their relative’s house, while both the accused stayed in the hotel; next day on 28.9.1997, they proceeded towards Kotdwar; accused Rajendra Singh Tariyal was sitting next to him in his vehicle UP06-1578, while accused Mukesh @ Pushkar was on the steering of breakdown vehicle UTS-1551 and his nephew Mahipal Singh (deceased) was sitting next to him; they reached at Nagina at about 4 o’clock in the afternoon; accused offered them to eat biscuit and tea; having consumed the biscuit and tea offered by the accused, PW8 fell unconscious; in the intervening night of 28/29.9.1997, he gained his consciousness and found himself packed in a jute bag; however, anyhow he was able to come out therefrom; he immediately reached to his relative Daulat Singh wherefrom he went to the hospital and took the treatment and thereafter he went to the Police Station Kotdwar to report the matter, where he has reported the entire incident and shown his apprehension that after looting his vehicle, his nephew Mahipal Singh might have been killed by both the accused. 9. PW9 Smt. Savitri Devi, wife of Keshar Singh PW8, has also stated that both the accused came to their house in the evening of 26.9.1997 and requested her husband to toe their breakdown vehicle to Ramnagar; however, her husband did not agree to go in the night, therefore, both the accused stayed in their house, and both the accused as well as her husband PW8 Keshar Singh and nephew Mahipal Singh (deceased) left the house from Dhumakot for Ramnagar in the fashion narrated by PW8. 10. From the statement of PW9, it is clear that PW8 as well as the deceased Mahipal Singh left from the house in the morning of 27.9.1997 in the company of both the accused. From the statement of PW8, it is thus clear that both the accused as well as PW8 and Mahipal Singh were together till the afternoon of 29.9.1997 at Nagina. From the statement of PW8, it is thus clear that both the accused as well as PW8 and Mahipal Singh were together till the afternoon of 29.9.1997 at Nagina. In our considered opinion, statement of PW8, that in Nagina, both the accused offered them tea and biscuit, which they consumed and after which PW8 fell unconscious and he was packed in the jute bag and was thrown in a ditch, from where he was able to come out after gaining his consciousness in the intervening night of 28/29.9.1997. Since, the car as well as his nephew Mahipal Singh was found missing, therefore, he has narrated the incident to the police of Kotdwar Police Station vide report Ex. A-16, seems to be natural and probable. 11. PW1 and PW2 have proved Ex. A-1 i.e. the arrest memo of both the accused and have proved that accused were arrested along with the vehicle UTS-1551 at about 6 o’clock in the morning of 30.9.1997 when they were standing near BEL Road, Sidhbali Factory. 12. As per the statement of PW1 and PW2 as well as the statement of PW3 Chandra Prakash Chamoli, dead body of Mahipal Singh was recovered on the pointing out of both the accused from a ditch within the revenue area of Challani Patti Bijlot, Tehsil Dhumakot. It is important to mention herein that the conduct of the police of Kotdwar Police Station that the moment they came to know that the dead body of deceased Mahipal Singh was lying within the revenue area, they took along the revenue officials before effecting the recovery of dead body, which was recovered on the pointing out of both the accused, was quite natural. Therefore, in our considered opinion, Ex. Ka-2 stands proved and can be read in evidence as per Section 27 of the Evidence Act. 13. Recovery memo of the vehicle looted from PW8 Ex. Ka-5 is duly signed by both the accused. Therefore, we have no hesitation to hold that the same stands proved. Recovery of dead body of Mahipal Singh along with the looted vehicle on the pointing out of the accused goes to prove that Mahipal Singh was murdered by both the accused and his dead body was thrown in a ditch. 14. It is not pointed out by the defence as to why appellant would have been falsely implicated. Recovery of dead body of Mahipal Singh along with the looted vehicle on the pointing out of the accused goes to prove that Mahipal Singh was murdered by both the accused and his dead body was thrown in a ditch. 14. It is not pointed out by the defence as to why appellant would have been falsely implicated. Moreover, if Mahipal Singh (deceased) was last seen in the company of present appellant and another accused Rajendra Singh Tariyal by PW8 at Nagina in the evening of 28.09.1997, soon before his probable death, in our considered opinion, in the absence of any explanation from the side of accused under Section 106 of the Evidence Act, guilt of the appellant stands proved. 15. We are of the view that the prosecution has successfully proved the circumstantial evidence beyond reasonable doubt. Therefore, no interference is called for in the impugned judgment and order of the Trial Court in the present appeal. The appeal fails and is hereby dismissed. Appellant is said to be in jail. He shall serve out the sentence as awarded by the learned Trial Court. 16. Let a copy of this judgment, along with LCR, be sent to the Trial Court for information.