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2017 DIGILAW 360 (UTT)

Laxman Singh v. State of Uttarakhand

2017-07-10

RAJIV SHARMA, SHARAD KUMAR SHARMA

body2017
JUDGMENT : Rajiv Sharma, J. 1. Since the common questions of law and facts are involved in the above numbered appeals, hence these are being taken up together and adjudicated by this common judgment. 2. These criminal appeals are instituted against the judgment and order dated 17.11.2011 passed by learned Sessions Judge, Pauri Garhwal in Sessions Trial No.46 of 2008, whereby the accused/appellants (Laxman Singh and Sanju @ Sanjay Singh), were charged with and tried for the offence punishable under Section 302 IPC. They were convicted under Section 302 read with Section 34 of IPC. The trial court has sentenced the accused/appellants to undergo imprisonment for life with fine of Rs.5000/- each under Section 302/34 of IPC and in case of default of payment of fine, to undergo imprisonment for a further period of six months. 3. The case of the prosecution, in a nutshell, is that first information report was lodged by PW-1 Sampuran Singh on 23.07.2008. The complainant received an information on 23.07.2008 at 08.00 a.m. that a dead body was lying near Darya Mandir. It appears to be a case of murder. Complainant alongwith other businessmen reached at the spot. Deceased was identified as Balkrishan Goniyal, Teacher. First information report was registered. 4. The body was sent for conducting the post mortem examination. Khukhari (Knife), bag and bloodstained earth etc. were taken into possession. Investigation was completed and the Challan was put up after completing all the codal formalities. 5. The Prosecution, in order to prove its case examined as many as thirteen witnesses. 6. Thereafter, the statements of the accused/ appellants were recorded under Section 313 Cr.P.C. They have denied the case of the prosecution and claimed to be tried. Accused/appellants were convicted and sentenced as noted hereinabove. Hence, the present criminal appeals. 7. Learned Advocate appearing for the accused/ appellants, has vehemently argued that the prosecution has failed to prove its case against the accused/appellants. 8. Learned Dy. Advocate General appearing for the State has supported the impugned judgment dated 17.11.2011. 9. We have heard learned counsel for the parties and gone through the judgment and record very carefully. 10. PW-1-Sampuran Singh Negi has lodged the report on 23.07.2008. According to him, he received an information that dead body was lying near river. He alongwith other colleagues went at the spot. The dead body was identified to be of Goniyal Teacher. 11. We have heard learned counsel for the parties and gone through the judgment and record very carefully. 10. PW-1-Sampuran Singh Negi has lodged the report on 23.07.2008. According to him, he received an information that dead body was lying near river. He alongwith other colleagues went at the spot. The dead body was identified to be of Goniyal Teacher. 11. PW-2 Vachaspati Sharma is the father of the deceased. He deposed that his son left his house on 20.07.2008 to attend his duties. He was wearing a golden ring & wristwatch and Rs.13,000/- were also with him. He received a telephone call on 22.07.2008 from his son that he would come back tomorrow. He had gone to Meerut on 23.07.2008. He received a message from his nephew Atul that Balkishan was murdered in Baijrao. He reached at the Pauri on 23.07.2008 at 10.00 p.m. He saw that the dead body of his son was lying in Mortuary. According to him, when the family of his son was not with him, he used to stay at Sangita Hotel. His son was not having any mobile phone. According to him, his son had taken a house on the rent @ Rs.500/-. 12. PW-3 Dharam Pal Singh Negi is the eyewitness. He deposed that deceased was staying in Sangita Hotal for last 5-6 days. He had seen deceased at about 07.30-08.00 p.m. sitting outside the room. 13. PW-4 Jaswant Singh deposed that on 25.07.2008 at 05.40 p.m. Patwari had brought accused persons namely Sanjay and Laxman. At that time Meharban Singh was also present. He was also present. Accused Sanjay had brought Khukhari (Knife) from bushes. He also made extra judicial confession that he along with Laxman murdered Balkishan Goniyal with this Khukhari (knife). The Khukhari (knife) was taken into possession by Patwari. After recovery of Khukhari (knife), Patwari took accused persons Sanjay and Laxman to Sainik Hotel. Many people were also present. Sanjay told that Laxman promised to pay him Rs.5,000/- to kill somebody. At the time when Sanjay made extra judicial confession, he along with Meharban Singh, Dr. Surendra Singh and Mangal Singh were also present. He has confessed that firstly he hit Balkishan and thereafter, Laxman Singh hit the deceased. The statement was recorded on a paper. The contents of the same were read over. At the time when Sanjay made extra judicial confession, he along with Meharban Singh, Dr. Surendra Singh and Mangal Singh were also present. He has confessed that firstly he hit Balkishan and thereafter, Laxman Singh hit the deceased. The statement was recorded on a paper. The contents of the same were read over. Patwari had also recovered one bag of deceased on 23.07.2008 at 2.30 p.m. from Sangita Hotel. He was summoned on 25.07.2008 by Patwari. He further admitted in his cross examination that recovery of Khukhari (Knife) was made by S.O. S.P. Chauhan. Police Personnel were also present there. S.O. S.P. Chauhan told him that he should accompany them to search Khukhari (Knife). Khukhari (Knife) was recovered. He also admitted that policemen came at his shop. All the formalities regarding recovery of Khukhari (Knife) were completed by the Police. He also admitted that S.H.O. was also present alongwith 6-7 police personnel at the spot. 14. PW-5 Prem Singh deposed that on 22.07.2008 at about 5-6 p.m., he was in Baijrao. After taking meal, he came out for washing hands. Sanjay came and he brandished Khukhari (Knife) and threatened him. 15. PW-6 Mangal Singh deposed that in the presence of Meharban Singh, Dr. Surendra Singh and Jaswant Singh, accused Sanjay told that Laxman has promised to pay Rs.5,000/- to murder Goniyal. He was handcuffed. 16. PW-7 Shankar Singh Rawat deposed that he knew accused Sanju. He did not know deceased Balkishan Goniyal. He had not gone to see the dead body of Balkishan. Nothing has been recovered from the house of the accused before him. He was declared hostile. 17. PW-8 Dr. Murlidhar Prasad Jain has conducted the post mortem examination. According to him, the cause of death of deceased Balkishan Goniyal is irreversible hypovolemic shock due to primary haemorrhage. Injuries were probable on 22.07.2008 at about 09.00 p.m. He has proved the post mortem report. 18. PW-9 Harendra Singh deposed that on 23.07.2008 at about 08.00 a.m., he went for buying something in the Sanjay’s shop. He told him that he and Laxman have done away with Masterji. Thereafter, he came back. His statement was recorded before the Magistrate under Section 164 Cr.P.C. The Patwari has taken into possession blood soil from the spot. In his cross examination, he categorically admitted that he was beaten by the police. He told him that he and Laxman have done away with Masterji. Thereafter, he came back. His statement was recorded before the Magistrate under Section 164 Cr.P.C. The Patwari has taken into possession blood soil from the spot. In his cross examination, he categorically admitted that he was beaten by the police. He has given statement before the Magistrate in the manner in which the police told him to do so. 19. PW-10 Arvind Singh has deposed that on 25.07.2008 at about 6.00-6.30 p.m. Sanju @ Sanjay and Laxman were brought. They went towards the house of Sanju. He did not accompany them. He has put signature on the documents qua recovery of Towel, T-shirt which were allegedly recovered from the house of Sanju. In his cross examination, he stated that he had not gone to Sanju’s house. He again reiterated that no recovery was made in his presence. 20. PW-11 Mohan Chandra deposed that interrogation was carried out. Thereafter, Patwari alongwith accused Sanjay @ Sanju and Laxman came at Police Chauki to recover the Khukhari (Knife). Accused Sanjay got the Khukhari (Knife) recovered and made extra judicial confession that he murdered Balkishan Goniyal along with Laxman with this Khukari (Knife). Khukhari (Knife) was taken into possession by the Patwari. 21. PW-12 Surendra Singh was the Patwari. He deposed that the dead body was identified by local businessmen. He registered the first information report. He also admitted that during the investigation, it transpired that deceased was in Baijrao for last 4-5 days. Hotels were searched at Baijrao. The bag of deceased Balkishan was recovered from Sangita Hotel. After effecting the recovery, accused were brought at Police Station. Sanjay confessed that Laxman called him at Sangita Hotel on 22.07.2008 and told him that Balkishan Goniyal was staying in his Hotel and money was with him. He told him that he would pay Rs.5,000/- and would also arrange a girl for him and told him to kill Goniyal. Thereafter, Sanjay alongwith Laxman killed Balkishan Goniyal. Thereafter, they went to the spot where Khukari (Knife) was got recovered by accused from bushes. Thereafter, Sanjay was taken to his house and his clothes were recovered. He also admitted in his cross examination that he has not searched any other Hotel. 22. PW-13 Raghu Beer Singh was posted as Patwari since 18.08.2008. Before that, Surendra Singh was the Investigating Officer in the matter. 23. Thereafter, Sanjay was taken to his house and his clothes were recovered. He also admitted in his cross examination that he has not searched any other Hotel. 22. PW-13 Raghu Beer Singh was posted as Patwari since 18.08.2008. Before that, Surendra Singh was the Investigating Officer in the matter. 23. What emerges from the statements and discussion made hereinabove is that Balkishan Goniyal (deceased) was son of the PW-2 Vachaspati Sharma. He left his house to join his duty. His dead body was recovered on 23.07.2008. The accused persons (Sanju @ Sanjay & Laxman) were arrested. Weapon was recovered. First information report was lodged by PW-1 Sampuran Singh. PW-2 Vachaspati Sharma is father of the deceased. He categorically deposed in his cross examination that his son had left his house on 20.07.2008. He received a telephone call on 22.07.2008 at about 04.00 p.m. whereby his son told that he would come tomorrow. He received information on 23.07.2008 that his son was murdered. He deposed that his son used to stay in Sangita Hotel when his family was not with him. In his cross examination, he admitted that his son has taken a room on rent @ 500/-. PW-3 Dharam Pal Singh Negi was the eyewitness. According to him, deceased was staying in Sangita Hotel for the last 5-6 days. He had seen him between 07.30 p.m.-08.00 p.m. sitting outside the hotel’s room. PW-12 Surendra Singh has also deposed that during the investigation, it was found that deceased was staying in Baijrao for the last 4-5 days. There is variance in the statement of PW-2 Vachaspati Sharma and PW-3 Dharam Pal Singh Negi. PW-2 Vachaspati Sharma has also deposed that his son left his house to join his duty for Baijrao on 20.03.2008. PW-3 Dharam Pal Singh Negi has categorically testified that deceased was staying in Sangita Hotel for the last 5-6 days. According to PW-12 Surendra Singh, during the investigation, it was found that deceased was in Baijrao for the last 5-6 days. 24. PW-4 Jaswant Singh deposed that accused Sanjay got Khukhari (Knife) recovered from the bushes. Thereafter, accused Sanjay was taken to Sainik Hotel. He made extra judicial confession that Laxman told him to pay Rs.5000/- to kill Balkishan. Thereafter, he confessed that he had killed Balkishan Goniyal alongwith Laxman. This extra judicial confession was made before Meharban Singh and Mangal Singh. This statement was recorded. Thereafter, accused Sanjay was taken to Sainik Hotel. He made extra judicial confession that Laxman told him to pay Rs.5000/- to kill Balkishan. Thereafter, he confessed that he had killed Balkishan Goniyal alongwith Laxman. This extra judicial confession was made before Meharban Singh and Mangal Singh. This statement was recorded. Thereafter, police has taken into possession a bag. In his cross examination, he categorically admitted that police personnel were also at the spot. S.O. S.P. Chauhan alongwith 6-7 police personnel were also present. Formalities were completed by the police. This extra judicial confession was made by accused Sanju @ Sanjay in the presence of police officers. PW-9 Harendra Singh has deposed that his statement has been recorded under Section 164 Cr.P.C. before the Magistrate in the manner in which the police told him to do so. However, Magistrate recorded the statement under Section 164 Cr.P.C. has not been examined. According to him, accused Sanjay proclaimed that he had killed Masterji alongwith Laxman on 23.07.2008. There was no occasion for Sanjay to make extra judicial confession before Harendra Singh admitting his guilt. PW-5 Prem Singh deposed that on 22.07.2008 at about 5-6 p.m., he was in Baijrao. After taking meal, he was washing hands. Sanjay came and he brandished Khukari (knife) and threatened him. Prosecution has not explained why Sanjay threatened PW-5 Prem Singh without any cause. 25. PW-6 Mangal Singh is the material witness. He deposed that on 23.07.2008 he along with Meharban Singh, Dr. Surendra Singh, Jaswant Singh were present when accused Sanjay had made extra judicial confession that Laxman had promised to pay Rs.5,000/- to kill Goniyal. He has very specifically deposed that at that time accused Sanjay was in handcuffs. This extra judicial confession was allegedly made by accused Sanjay before PW-4 Jaswant Singh and PW-6 Mangal Singh when he was in custody. This extra judicial confession made before the police is not admissible under Section 26 of Indian Evidence Act. PW-7 Shankar Singh Rawat has not supported the prosecution case. He deposed that nothing was recovered in his presence from the house of the accused. The statement of PW-9 Harendra Singh does not inspire confidence. It has come in the statement that he was beaten by police. PW-10 Arvind Singh has also not supported the case of prosecution. PW-7 Shankar Singh Rawat has not supported the prosecution case. He deposed that nothing was recovered in his presence from the house of the accused. The statement of PW-9 Harendra Singh does not inspire confidence. It has come in the statement that he was beaten by police. PW-10 Arvind Singh has also not supported the case of prosecution. He deposed that he was not present at the time of recovery of clothes from the house of accused Sanju @ Sanjay. He stated that he made signature on the documents qua recovery of Towel, T-shirt. He has categorically stated in his cross examination that no recovery was effected in his presence. PW-11 Mohan Chandra deposed that the interrogation was carried out. On the pointing out of accused Sanjay, Khukhari (Knife) was recovered. He also categorically deposed that he was with Patwari at the time of effecting recoveries. 26. PW-12 Surendra Singh deposed that accused were taken at Police Station where accused Sanjay made an extra judicial confession. This extra judicial confession was not admissible since it was made before a police officer after his arrest. Prosecution has relied upon the statement of PW-9 Harendra Singh under Section 164 Cr.P.C. wherein it has come in the statement that he was beaten by the police and he made the statement as per the dictates of the police. 27. Consequently, in view of the discussion made hereinabove, the prosecution has failed to prove its case against the accused beyond reasonable doubt. Learned trial Court has failed to take into consideration the major contradictions in the statements of PW-2 Vachaspati Sharma and PW-3 Dharam Pal Singh Negi. The extra judicial confession, made before police officers while accused were in custody is not admissible. The recovery is also suspect. Similarly, extra judicial confession made by accused before other witnesses that too in the presence of police officers is not admissible. It has come on record that at that time they were in handcuffs. 28. Accordingly, both the appeals are allowed. Judgment and order of conviction and sentence dated 17.11.2011 rendered by learned Sessions Judge, Pauri Garhwal in Sessions Trial No. 46 of 2008 is set aside. Appellants/accused (Sanju @ Sanjay and Laxman) are acquitted of the charges framed against them by giving them benefit of doubt. Accused/appellants are already on bail. They need not surrender. Their bail bonds and sureties are discharged. 29. Appellants/accused (Sanju @ Sanjay and Laxman) are acquitted of the charges framed against them by giving them benefit of doubt. Accused/appellants are already on bail. They need not surrender. Their bail bonds and sureties are discharged. 29. The copy of this judgment be placed in connected appeal. 30. Let a copy of this judgment along with lower court record be transmitted to the court below for compliance of the judgment forthwith.