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2015 DIGILAW 549 (UTT)

Shyam Gupta @ Shyamu v. State of Uttarakhand

2015-12-02

ALOK SINGH, SERVESH KUMAR GUPTA

body2015
JUDGMENT : Alok Singh, J. Both these appeals are preferred against the judgment and order dated 22.11.2011 passed by the Sessions Judge, Udham Singh Nagar in Sessions Trial No.52 of 2008, whereby both the appellants were held guilty for the offences punishable u/s 302, 394 and 411 IPC as well as for the offence punishable u/s 4/25 of the Arms Act; were awarded life imprisonment u/s 302 IPC; awarded R.I. for a period of 7 years and fine of Rs.15,000/- each and in default in making payment of fine, to undergo additional simple imprisonment of one year u/s 394 IPC; were awarded rigorous imprisonment for a period of one-year and fine of Rs.5,000/- each and in default in making payment of fine, to undergo additional simple imprisonment for three months u/s 411 IPC; were awarded R.I. for a period of six months and fine of Rs.1,000/- each and in default in making payment of fine, to undergo one-month additional simple imprisonment u/s 4/25 of the Arms Act. 2. None is present for the appellant Shyam Gupta @ Shyamu, however Mr. Chandra Mauli Shah, learned Advocate, who was appointed as amicus curiae in the connected appeal filed by Sameer Joshi, is present. Mr. Shah submits that since he has prepared the appeal and the evidence against both the appellants is the same and identical, therefore, he shall address the Court on behalf of both the appellants. We appreciate the gesture shown by Mr. Chandra Mauli Shah, Advocate. Therefore, he is permitted to address this Court, as amicus curiae, on behalf of the appellant Shyam Gupta @ Shyamu as well. 3. Brief facts of the case, inter alia, are that on 28.11.2007 at about 8:30 PM, PW1 Digamber Gupta has handed over the written report to P.S. Kotwali Khatima, stating therein that at about 1 PM of the same day, he went to Pilibhit by car along with Dinesh Verma; at about 6:30 in the evening, he received a telephonic call from Mr. Vishwanath Goyal to the effect that his wife has been murdered; soon thereafter, PW1 suspected that his nephew Shyamu S/o Late Mr. Krishan Murari Gupta R/o Rampura, Rudrapur and his two friends, who were staying in his house for last two days, might have murdered his wife; having reached back in the house, he found the dead body of his wife laying in the house. Krishan Murari Gupta R/o Rampura, Rudrapur and his two friends, who were staying in his house for last two days, might have murdered his wife; having reached back in the house, he found the dead body of his wife laying in the house. Whereupon the Chick FIR Ex.Ka-19 was got registered as case crime No.5426 of 2007 u/s 302 IPC against both the suspects/appellants; inquest report of the dead body was prepared on the spot by S.I. K.R. Pandey, PW6; dead body was sealed; with the help of crime kit box, finger prints were collected from the spot by S.I. K.R. Pandey. 4. PW1 Digamber Gupta, after reaching to the house, has found that the jewellery was missing from the body of his wife Smt. Sushma Gupta. 5. Post-mortem was conducted on the dead body of Smt. Sushma Gupta on 29.11.2007. During the post-mortem, as many as seventeen injuries were found on the dead body of deceased Smt. Sushma Gupta. 6. Both the accused/appellants were arrested on 29.11.2007. On the same day, both the accused confessed their guilt and took the police party to the house of appellant Samir at Subhash Colony, Rudrapur; on the pointing out of both the accused, a suitcase was opened wherefrom one gold necklace weighing about 25 grams, 2 gold rings and one pair of ear rings were recovered. PW1 was present on the spot at the time of recovery of looted items and he has identified the looted ornaments to be of his deceased wife Smt. Sushma Gupta. The ornaments, so recovered, were kept in a sealed cover and the recovery memo was prepared on the spot which was signed by both the accused/ appellants. On 30.1.2007, both the accused disclosed to the police that they have concealed the knife whereby they have murdered Smt. Sushma Gupta as well as the jacket containing blood stains; both the accused took the police party to Sitarganj road near Canal; on the pointing out of both the accused, knife and bloodstained jacket were recovered from behind the bushes after removing the earth; knife as well as jacket, so recovered, were kept in a sealed cover and recovery memo Ex.Ka-14 was prepared on the spot which was duly signed by both the appellants. 7. 7. After the investigation, chargesheet was submitted against both the appellants for the offences punishable u/s 302, 394 and 411 IPC as well as for the offence of Section 4/25 of the Arms Act. 8. After committal of trial, Charges were framed against both the appellants for the offences punishable u/s 302, 394 and 411 IPC as well as u/s 4/25 of the Arms Act. Appellants denied the charges and claimed trial. 9. To prove the prosecution story, PW1 Digamber Gupta, PW2 Abhinav Gupta (minor son of deceased aged about 7 years), PW3 Ms. Swati (minor daughter of deceased aged about 13 years), PW4 Om Prakash Gupta, PW5 Devendra Swaroop, PW6 S.I. K.R. Pandey, PW7 Dev Singh, PW8 Dr. H.S. Kathayat, PW9 S.S.I. Indra Singh Rawat, PW10 S.I. Shiv Singh Gusain, PW11 S.I. Damodar Bhatt and PW12 S.I. Jay Ram Singh, were examined. 10. Thereafter, the statements of both the appellants were recorded u/s 313 of the Code of Criminal Procedure. 11. Learned Sessions Judge, having perused the entire material produced before him, was pleased to pass the judgment and order impugned in the present appeals. 12. We have heard Mr. Chandra Mauli Shah, learned Amicus Curiae appearing for both the appellants as well as Mr. A.S. Gill, Deputy Advocate General for the State and have carefully perused the record. 13. As per the statement of PW6 S.I. K.R. Pandey, finger prints of both the appellants were also taken after their arrest. Specimen finger print of both the appellant and finger prints collected from the spot were sent for comparison to the Directorate of Finger Prints, Uttar Pradesh. As per the report of the Directorate of Finger Prints, Uttar Pradesh, (Ex.Ka-8), finger prints, collected from the spot, were found matching with the specimen finger print No.1219, which were of appellant Shyam Gupta. 14. As per the report of the Directorate of Finger Prints, Uttar Pradesh, (Ex.Ka-8), finger prints, collected from the spot, were found matching with the specimen finger print No.1219, which were of appellant Shyam Gupta. 14. PW2 Abhinav Gupta, aged about seven years, the minor son of deceased, who is admittedly having no enmity with either of the appellants, while appearing in the witness box, has stated that he came back from the school on the date of incident at about 2 in the noon; Sameer uncle went in the room of his mother while Shyam uncle sat with him in the outer room; meanwhile PW2 heard the screams of his mother whereupon PW2 asked Shyam uncle as to why his mother was screaming; Shyam uncle replied that his mother might have felt scared from the rat in the room, therefore, she was crying; meanwhile Shyam uncle also went in the room and thereafter, both of them came out and left the house; elder sister PW3 Swati Gupta also came from the school after some time and when both of them went into the room of their mother, they found their mother lying dead and blood was oozing out. 15. PW3 Km. Swati Gupta, aged about 13 years, has stated that both the accused were staying in their house for last 2 days. After coming from the school, she and her brother PW2 as well as another youngest brother Himanshu went to the room of their mother and they found her lying dead. She further stated that in the evening, when father came back from Pilibhit, PW2 Abhinav Gupta has narrated the entire story to him. 16. PW5 Devendra Swaroop, while appearing in the witness box, has stated that he along with Govind, another painter, was doing the work of painting in the house of PW1 and deceased. On the date of incident, PW1 left the house for Pilibhit; on the date of incident when both of them came back for painting work after having lunch at about 2 in the noon, they saw that PW2 Abhinav was sitting on the cot and was reading something while appellant Shyam was standing next to him. On the date of incident, PW1 left the house for Pilibhit; on the date of incident when both of them came back for painting work after having lunch at about 2 in the noon, they saw that PW2 Abhinav was sitting on the cot and was reading something while appellant Shyam was standing next to him. Appellant Shyam used to call PW1 Digamber as his uncle; he has identified both the accused in the court room saying that these are the persons who were present in the house of Digamber Gupta, PW1 on the date of occurrence. He has further stated that he has seen both the accused persons leaving the house in the afternoon on the date of incident. 17. PW1 Digamber Gupta, while appearing in the witness box, has stated that on the date of incident, he went to Pilibhit and in Pilibhit, he has received telephonic message on his mobile phone from Mr. Vishwanath Goyal, brother of deceased, that his wife has been murdered. Since his nephew Shyamu was staying in his house along with his two friends, therefore, he became suspicious that his wife might have been murdered by Shyamu and his friends for the purpose of committing loot. He has further stated that in his presence, on the pointing out of both the appellants/accused, from the house of accused Samir at Subhash Colony, Rudrapur, looted jewellery items were recovered from a suitcase and the recovery memo was prepared on the spot and it was signed by him as well as by both the appellants. He has identified this looted jewellery to be of his wife which was recovered from the house of Sameer on the pointing out of both the accused. 18. We have carefully perused the entire material. Recovery of bloodstained knife and bloodstained jacket of the accused, at their instance and recovery of looted ornament from the home of appellant Samir pursuant to disclosure statements of both the appellants, is admissible u/s 27 of the Indian Evidence Act. Moreover, both the appellants, in their statements u/s 313 Cr.P.C., could not explain as to how their signatures are present on the recovery memo of knife as well as of bloodstained jacket. Both the appellants did not dispute their signatures on the recovery memo of looted jewellery as well. 19. Moreover, both the appellants, in their statements u/s 313 Cr.P.C., could not explain as to how their signatures are present on the recovery memo of knife as well as of bloodstained jacket. Both the appellants did not dispute their signatures on the recovery memo of looted jewellery as well. 19. As per the statement of PW2 Abhinav Gupta, both the appellants went in the room of his mother, when she was alive and both of them left the house together. Soon thereafter, she was found murdered. In our considered opinion, recovery of looted ornament from the house of appellant Sameer on the disclosure statement of both the appellant coupled with statement of PW2 and PW5 and matching of finger print of appellant with the finger print collected from the spot as well recovery of bloodstained knife and jacket of one of the appellant pursuant to their disclosure statement leave no doubt about the involvement of the appellant in the murder of Smt. Sushma Gupta and loot of ornament from the person of Smt. Sushma Gupta. 20. Therefore, we find that the conclusion and the findings of fact, recorded by learned Trial Judge, are perfectly valid and supported by cogent evidence. We do not find any material or reason to take the contrary view to the view taken by learned Trial Judge. Therefore, both the appeals fail and are hereby dismissed. Both the appellants are in jail. They shall serve out the sentence, as awarded to them by learned Trial Court. 21. Let a copy of this judgment be kept in the connected file and the same be also forwarded to learned Trial Judge along with LCR for information and record.