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2017 DIGILAW 342 (UTT)

UMA SHANKAR PANDEY v. STATE OF UTTARAKHAND

2017-06-29

RAJIV SHARMA, SHARAD KUMAR SHARMA

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JUDGMENT : RAJIV SHARMA, J. 1. This appeal is instituted against the judgment dated 06.06.2015 rendered by learned Ist Additional Sessions Judge, Dehradun in Sessions Trial No.95 of 2012, whereby the appellant-accused, who was charged with and tried for the offences under Section 302, 504 and 506 of IPC, has been convicted and sentenced to undergo life imprisonment under Section 302 of IPC and to pay a fine of Rs. 10,000/- and in default of payment of fine to undergo simple imprisonment for two years. He was further sentenced to undergo one year simple imprisonment under Section 504 of IPC and to pay a fine of Rs. 2,000/- and in default of payment of fine, to undergo simple imprisonment for a period of one month. He was further sentenced to undergo two years imprisonment under Section 506 of IPC and a fine of Rs. 2,000/- and in default of payment of fine, to undergo simple imprisonment for a period of one month. All the sentences imposed under the aforesaid sections were directed to run concurrently. 2. The case of the prosecution, in a nutshell, is that PW 1 Chandrabhan has lodged the FIR on 13.04.2012. According to the contents of the FIR, he was selling sugarcane juice on his cart. The accused-Uma Shankar Pandey was also selling tea near his cart. Uma Shankar Pandey bore a grudge against him. On 12.04.2012 at about 06:30 PM, the accused went to the cart of PW 1 Chandrabhan and started abusing his servant namely Surendra Kashyap. The accused inquired about him. The accused called him on telephone and told that he would kill the person who was working with him and if he wants to save him, he should come on the spot. He reached on the spot immediately. He saw that Uma Shankar Pandey has given blow with pickaxe (Gainti) on the head of Surendra Kashyap. Surendra Kashyap collapsed. Blood oozed from his wounds. He was taken to hospital in 108 Ambulance. Thereafter, he was referred to CMI Hospital. Uma Shankar Pandey advanced the threat to kill him and his family. Thereafter, FIR was registered. The investigation was carried out. The pickaxe was also taken into possession. The body was sent for postmortem examination. In the postmortem examination, the cause of death was opined to be head injury leading to excessive bleeding in the brain and cardio respiratory failure. Uma Shankar Pandey advanced the threat to kill him and his family. Thereafter, FIR was registered. The investigation was carried out. The pickaxe was also taken into possession. The body was sent for postmortem examination. In the postmortem examination, the cause of death was opined to be head injury leading to excessive bleeding in the brain and cardio respiratory failure. The prosecution has examined numbers of witnesses. The statement of accused was also recorded under section 313 of Cr.P.C., 1973 He denied the case of the prosecution. The accused was convicted and sentenced, as noticed here-in-above. 3. Learned counsel for the appellant has vehemently argued that the prosecution has failed to prove its case. Learned counsel on behalf of the State has supported the judgment dated 06.06.2015. 4. We have heard learned counsel for both the parties and perused the judgment carefully. 5. PW 1 Chandrabhan has testified that he was selling sugarcane juice on his cart. The accused was bearing a grudge against him. On 12.04.2012, at about 06:15- 6:30 PM the accused started abusing Surendra Kashyap and asked him to call his employer. The accused also rang him and told that he was killing Surendra Kashyap and if he wants to save him, he should come on the spot. He reached on the spot within 5-7 minutes. When he was crossing the road, the accused gave a blow of pickaxe (Gainti) on the head of Surendra Kashyap. Surendra Kashyap collapsed on the spot. The accused ran away from the spot. In his cross-examination, he deposed that Surendra Kashyap along with other persons namely Shyam, Sanawar and Javed were working on his other counters. He lodged the FIR at 09:15 PM on 13.04.2012. He also deposed in his cross-examination that 10-12 people were present on the spot. 6. PW 2 Dr. Parag Singhal has conducted the postmortem examination on the dead body of Surendra Kashyap. According to him, the deceased died due to ante mortem injuries. According to him, injuries could be caused with pick-axe or stick. 7. PW 3 Mahavir Singh has deposed that on 12.04.2012 between 6-7 PM, he was repairing generator of sugarcane crushing machine owned by PW 1 Chandrabhan. Surendra Kashyap was working. The accused started abusing Surendra Kashyap. PW 1 Chandrabhan was not present. The quarrel has taken place between Surendra Kashyap and the accused. He separated them. 7. PW 3 Mahavir Singh has deposed that on 12.04.2012 between 6-7 PM, he was repairing generator of sugarcane crushing machine owned by PW 1 Chandrabhan. Surendra Kashyap was working. The accused started abusing Surendra Kashyap. PW 1 Chandrabhan was not present. The quarrel has taken place between Surendra Kashyap and the accused. He separated them. Thereafter, the accused brought a wooden plank. He gave a blow of the plank on the shoulder of Surendra Kashyap. Surendra Kashyap rang up PW 1 Chandrabhan that the accused was abusing and fighting with him. Thereafter, the accused rang up PW 1 (Chandrabhan) and told him that he was beating Surendra Kashyap. PW 1 reached the spot within 10 minutes and he told the parties not to fight and thereafter, he left the spot. Thereafter, Uma Shankar Pandey gave the pick-axe blow on the head of Surendra. PW 1 Chandrabhan reached the spot. The accused ran away with wooden plank and pick-axe. Surendra Kashyap was taken to hospital. 8. PW 4 Vineet Kumar has deposed that he has seen the accused armed with pickaxe and baton. His uncle Surendra Kashyap was bleeding. 9. PW 5 Dr. Mahesh Kudiyal has deposed that on 13.04.2012 Surendra Kashyap was operated. He died at 10:00 PM. 10. PW 6 S.I. Kavita Joshi has deposed that she has reached at CMI Hospital for preparing the panchnama of the dead body. 11. PW 7 H.C. 105 Virendra has registered the FIR. 12. PW 8 S.I. P.D. Bhatt was the Investigating Officer. He went to the hospital. The deceased died at 9:40 PM. The accused was arrested. The pickaxe and wooden plank were recovered from his possession. According to postmortem report, the injuries could be caused by pickaxe or baton. These injuries were received six hours before the examination. 13. The accused in support of his case has also produced DW 1 Nanki Rai, DW 2 Uma Shankar and DW 3 Neelam. 14. The case of the prosecution precisely is that the PW 1 Chandrabhan was engaged in selling sugarcane juice on his cart. He engaged Surendra Kashyap. The accused came on the spot and started abusing Surendra Kashyap. The accused asked Surendra Kashyap to call his employer. The accused also rang him up and asked him to reach the spot, since he was beating Surendra Kashyap. He engaged Surendra Kashyap. The accused came on the spot and started abusing Surendra Kashyap. The accused asked Surendra Kashyap to call his employer. The accused also rang him up and asked him to reach the spot, since he was beating Surendra Kashyap. PW 1 Chandrabhan reached and saw that the accused was beating the deceased with pickaxe. The incident has happened between 6-7 PM on 12.04.2012, but the FIR was lodged belatedly on 13.04.2012 at about 9:30 PM. 15. PW 1 Chanderbhan has deposed that he was informed on telephone by the accused that he was beating up Surendra Kashyap and if he wants to save him, he should come on the spot. PW 1 Chandrabhan reached the spot. According to him, 10-12 people gathered at the spot. The case of the prosecution is that the incident was also seen by PW 3 Mahavir Singh. PW 3 Mahavir Singh deposed that deceased and accused were fighting. He separated them. Thereafter, the deceased rang up the employer (PW 1) and told him that the accused was abusing and picked up a quarrel with him. Thereafter, the accused rang up PW 1 Chandrabhan and told him that he was giving beatings to Surendra Kashyap. PW 1 Chandrabhan reached the spot within 10 minutes and thereafter left the spot after telling the parties to mend their ways. After some time, the accused gave pickaxe blow on the head of Surendra Kashyap. PW 1 Chandrabhan also reached the spot and the accused ran away. 16. There is variance in statements of PW 1 Chandrabhan and PW 3 Mahavir Singh. According to PW 1 Chandrabhan, he has seen the accused giving pickaxe blow on the head, however, PW 3 Mahavir Singh another eyewitness deposed that PW 1 was not present on the spot and he left the spot asking the parties to mend their ways. Thereafter, deceased was given pickaxe blow on the head by the accused and thereafter, PW 1 Chandrabhan reached the spot. 17. PW 3 Mahavir Singh has deposed that Surendra Kashyap rang up PW 1 Chanderbhan informing him about the misbehaviour of the accused and picking up a quarrel with him. However, neither in the FIR nor in the statement of PW 1 Chandrabhan, the deceased has informed him about the incident on telephone. 17. PW 3 Mahavir Singh has deposed that Surendra Kashyap rang up PW 1 Chanderbhan informing him about the misbehaviour of the accused and picking up a quarrel with him. However, neither in the FIR nor in the statement of PW 1 Chandrabhan, the deceased has informed him about the incident on telephone. Surprisingly, neither in the FIR nor in the statements there is any mention about the presence of PW 3 Mahavir Singh. PW 3 Mahavir Singh has deposed that he was repairing the generator of PW 1 Chandrabhan. If that was so, this fact was within the specific knowledge of PW 1 Chandrabhan. PW 3 Mahavir Singh, as noticed earlier, has deposed that PW 1 Chandrabhan has left the spot and he has not seen the accused giving a blow on the head of Surendra Kashyap with pickaxe. But PW 1 Chandrabhan has deposed that he has seen the accused giving a blow on the head of Surendra Kashyap with pickaxe. 18. According to the contents of FIR, the accused bore a grudge against PW 1 Chandrabhan. What was the enmity has not been spelt out. In case, there was some enmity between PW 1 Chandrabhan and the accused, it is not discernable why the accused would kill Surendra Kumar. 19. According to PW 1 Chandrabhan, he reached at the spot within 5-7 minutes. According to PW 3, PW 1 came after 10 minutes. It is also difficult to believe that the accused would have proclaimed on telephone that he would kill Surendra Kashyap and his employer PW 1 Chandrabhan should come on the spot to save his employee. 20. The weapon of offence was sent to FSL but no blood was found on pickaxe. It is difficult to believe that in case, deceased was hit by pickaxe, no blood was traced on the weapon. Even no blood was also found on wooden plank as per FSL report dated 15.05.2012. 21. The prosecution has failed to prove its case against the accused beyond reasonable doubt. Accordingly, the appeal is allowed. The judgment dated 06.06.2015 is set-aside. The appellant is in jail. Let he be released forthwith, if not required in connection with any other matter. 22. A copy of this judgment be sent to the court below for compliance forthwith.