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2017 DIGILAW 467 (UTT)

Babu Ram v. State of Uttarakhand

2017-08-29

RAJIV SHARMA, SHARAD KUMAR SHARMA

body2017
JUDGMENT : Rajiv Sharma, J. 1. These appeals are instituted against the judgment and order dated 15.06.2011 rendered by learned Sessions Judge, Haridwar in S.Ts. No.113/2009 and 114/2009, whereby the appellant was charged with and tried for the offences punishable under Sections 302 IPC and u/s 25 of the Arms Act. The Trial Court convicted the appellant u/s 302 IPC and sentenced him to undergo imprisonment for life with fine of Rs.10,000/- and in default of payment of fine, to undergo six months’ additional rigorous imprisonment. Appellant was further convicted by the Trial Court u/s 25 Arms Act and sentenced to undergo three years’ R.I. with fine of Rs.5,000/- and in default of payment of fine, to undergo three months’ additional rigorous imprisonment. Both the sentences were ordered to run concurrently. 2. Case of the prosecution in a nutshell is that PW1 Rajendra Singh lodged an FIR on 5.12.2008 to the effect that his son Sewak Kumar has left the house on 5.12.2008 at 2 PM. His son was shot dead in a sugarcane field. He suspected that his son was murdered by Babu Ram. Babu Ram had threatened his son four days back due to alleged involvement of his son with Babu Ram’s daughter. The FIR was registered. The body was sent for post-mortem examination. Cause of death, as per post-mortem report, was shock and hemorrhage due to ante-mortem injuries. The matter was investigated and Challan was put up after completing all the codal formalities. 3. Prosecution has examined as many as eleven witnesses in support of its case. 4. Appellant was also examined u/s 313 Cr.P.C. He denied the case of prosecution. 5. Appellant was convicted and sentenced by the Trial Court, as noticed hereinabove. Hence these appeals. 6. Learned Senior Counsel, appearing on behalf of the appellant, has vehemently argued that the prosecution has failed to prove its case against the appellant beyond reasonable doubt. 7. Learned Dy. Advocate General for the State as well as learned Counsel for the complainant, have supported the judgment dated 15.06.2011. 8. We have heard learned counsel for the parties and perused the entire material available on record. 9. PW1 Rajendra Singh testified that his son has left at 2 PM on 5.12.2008. His son’s dead body was recovered from sugarcane field. His son was shot dead. He had strong suspicion about the involvement of appellant in the crime. 8. We have heard learned counsel for the parties and perused the entire material available on record. 9. PW1 Rajendra Singh testified that his son has left at 2 PM on 5.12.2008. His son’s dead body was recovered from sugarcane field. His son was shot dead. He had strong suspicion about the involvement of appellant in the crime. His son was involved with Babu Ram’s daughter. Babu Ram had threatened his son four days back. Babu Ram had engaged his daughter somewhere else. The marriage of Babu Ram’s daughter was fixed for 11.12.2008. The Police has taken into possession the blood-soaked soil and plain soil from the spot. In his cross-examination, he has categorically deposed that he had gone to police station with Vijendra, Ishwar Pal, Ram Nath, Sanjeev, Rajbal, Lekhraj and many other persons. All these persons had come to the spot with police. He has also deposed specifically that the above-mentioned persons have also come to attend the last rites of his son. Religious ceremonies were performed after three days. All the persons mentioned above also attended this congregation. He further admitted that police had visited the spot repeatedly. Police made enquiries from all the persons mentioned hereinabove. He also admitted that he has not made any complaint to the villagers about the threat perception to his son by the appellant. 10. PW2 Ishwar Pal had gone to the spot from where the dead body was recovered. The inquest report was prepared. He also signed the same. On 21.12.2008, he was standing at bus stand with Rajbir. S.O. came. S.O. asked them to become the witnesses. They went towards jungle. Babu Ram went ahead of them and entered a sugarcane field. He has recovered a country made pistol from the field and proclaimed that he killed Sewak Kumar with this country made pistol. In his cross-examination, he has admitted that Rajbir did not belong to the village but he knew him. 11. PW3 Rajbal deposed that he along with Lekhraj were going towards Gordhanpur Peeth. On 5.12.2008 at about 4-5 PM, they reached near the sugarcane field of Mangey Ram. They saw the appellant and Sewak Ram grappling. Babu Ram took out a country made pistol and shot at Sewak Ram. Sewak Ram collapsed. Babu Ram ran towards the mountain/river. They went to see Sewak Ram. Sewak Ram was dead. His brain has come out of skull. They saw the appellant and Sewak Ram grappling. Babu Ram took out a country made pistol and shot at Sewak Ram. Sewak Ram collapsed. Babu Ram ran towards the mountain/river. They went to see Sewak Ram. Sewak Ram was dead. His brain has come out of skull. Thereafter, they went back. They decided between them that they will not disclose this incident to anyone. Thereafter, they changed their heart and told Rajendra about the incident. According to him, Babu Ram’s daughter was involved with Sewak Ram and due to this reason, Babu Ram shot dead Sewak Ram. 12. Learned Advocate appearing on behalf of the appellant has submitted an application before the court below for postponing the cross-examination of PW3. This application was rejected. Mr. Satish Dubey, Advocate was requested to cross-examine PW3 Rajbal but he refused to do so. Accordingly, the right to cross-examine was closed. 13. PW4 S.I. Ranvir Singh has deposed that on 6.12.2008, he was posted at P.S. Khanpur. He prepared the inquest report on the spot. The dead body was searched. From the clothes of deceased, a wallet was recovered, inside which, the photograph of a girl was recovered. 14. PW5 Dr. Mangey Ram Malik has conducted the post-mortem examination. According to him, the deceased died due to shock and hemorrhage as a result of ante-mortem injuries. The time gap between the death and post-mortem was from half to one day. 15. PW6 Lekhraj has deposed that on 5.12.2008 at 4-5 PM, he along with Rajbal were going to Gordhanpur Peeth. They saw appellant grappling with Sewak Ram. They saw Babu Ram taking out a country made pistol and shooting at Sewak Ram. Babu Ram ran towards the river. Thereafter, they went to see Sewak Ram. However, he had died. They came back. They decided not to disclose the incident to anyone. Thereafter, a hue and cry was raised in the village that Babu Ram has killed Sewak Ram. Thereafter, they narrated the incident to Rajendra. He heard that Sewak Ram was having relations with Babu Ram’s daughter due to which Babu Ram killed Sewak Ram. In his cross-examination, he has admitted that appellant did not belong to his village. He was the resident of village Dhadeki. He also admitted that he did not purchase anything from the Peeth. He further deposed that Babu Ram was not alone and one other person was with him. In his cross-examination, he has admitted that appellant did not belong to his village. He was the resident of village Dhadeki. He also admitted that he did not purchase anything from the Peeth. He further deposed that Babu Ram was not alone and one other person was with him. He could neither identify nor name him. Babu Ram and another person together ran away from the spot. He has told Rajendra about the second person with Babu Ram. Teeja was performed on 7th December, 2008. Thereafter, a hue and cry was raised in the village that Babu Ram has killed Sewak Ram. When the incident was narrated to Rajendra, he took them to S.O. He categorically admitted that he was occupying Babu Ram’s house. 16. PW7 Constable Kunwar Singh is a formal witness. 17. PW8 Rajbir deposed that on 21.12.2008, when he reached at Khanpur Bus Stand, he met Ishwar Pradhan i.e. PW2. They took tea together. S.O. came on the spot. Thereafter, they went towards Gordhanpur Bridge. Babu Ram entered the sugarcane field and brought a country made pistol. In his cross-examination, he admitted that the country made pistol was not opened before them. He has not seen whether any cartridge was still available in the country made pistol or not. 18. PW9 Shanti Kumar has prepared the spot map. He has recorded the statements of S.I. Ranvir Singh and independent witness Ishwar Pal on 9.1.2009. Statement of Rajvir was recorded on 25.1.2009. 19. PW10 S.I. Rajendra Singh Rawat is a formal witness. 20. PW11 K.P. Singh Tamta has deposed that he has visited the spot and prepared the inquest report. He has taken into possession the blood soaked soil from the spot. He has categorically admitted in his cross-examination that on 7.12.2008, statements of witnesses of inquest report namely Phool Singh, Rajiv Kumar and Ishwar Pal were recorded. On 13.12.2008, complainant came at the police station disclosing that Rajendra and Lekhraj have told him that they have seen the appellant killing his son Sewak Ram. Thereafter, he went to Village Sikandarpur. Appellant has also got the country made pistol recovered. 21. D.W.1. Ranvir Singh testified that he was the Pradhan of Village Dhadika. Appellant Babu Ram has gone to Village Sikanderpur with his children. Babu Ram’s sister died on 3.12.2008. Babu Ram had come on 5.12.2008 to attend the religious ceremony. Thereafter, he went to Village Sikandarpur. Appellant has also got the country made pistol recovered. 21. D.W.1. Ranvir Singh testified that he was the Pradhan of Village Dhadika. Appellant Babu Ram has gone to Village Sikanderpur with his children. Babu Ram’s sister died on 3.12.2008. Babu Ram had come on 5.12.2008 to attend the religious ceremony. He had come at 6 of the morning and remained till 6 in the evening. 22. Statement of DW1 Ranvir Singh has been corroborated by DW2 Surajmal. 23. The case of the prosecution precisely is that son of PW1 Rajendra Singh was involved with the appellant’s daughter. Appellant has threatened Sewak Ram of dire consequences four days back. There are two eyewitnesses namely PW3 Raj Bal and PW6 Lekhraj of the incident. 24. According to PW3 Raj Bal and PW6 Lekhraj, they have seen the appellant taking out the country made pistol and shooting Sewak Ram. They had gone to Gordhanpur to make purchases on 5.12.2008. Both PW3 Raj Bal and PW6 Lekhraj have seen the appellant shooting Sewak Ram from a close distance. However, surprisingly, they have not intervened. They have not tried to save Sewak Ram. They have not chased Babu Ram. They have not informed Rajendra about the incident. PW3 Raj Bal and PW6 Lekhraj decided not to disclose the incident to anyone but when a hue and cry was raised in the village, they narrated the incident to PW1 Rajendra. The incident has happened on 5.12.2008. PW1 Rajendra has gone to the police station on 13.12.2008. The conduct of PW3 Raj Bal and PW6 Lekhraj is unusual and unreasonable. In case, they were present and seen the incident, their first instinct was to save Sewak Ram and to chase the appellant and thereafter, to disclose the incident to the father of deceased. It is not believable that a person would not disclose the incident which has happened before him to the father of deceased immediately. The presence of PW3 Raj Bal and PW6 Lekhraj is also doubtful. According to the prosecution, they both went on bicycles to Gordhanpur to make purchases, however, the fact of the matter is that they have not gone to Gordhanpur and had come back without making any purchase from the Peeth (a local market). The presence of PW3 Raj Bal and PW6 Lekhraj is also doubtful. According to the prosecution, they both went on bicycles to Gordhanpur to make purchases, however, the fact of the matter is that they have not gone to Gordhanpur and had come back without making any purchase from the Peeth (a local market). PW6 Lekhraj has given a new twist to the case by stating categorically in his cross-examination that Babu Ram was in the company of other person. Babu Ram and other person escaped from the spot together. However, he neither knew the name of that person nor his identity. 25. According to the prosecution, the weapon of offence i.e. gun was recovered at the instance of appellant from the sugarcane field. It was witnessed by PW2 Ishwar Pal and PW8 Rajvir. The police has not sent the country made pistol for F.S.L. Examination. It was necessary for the police to send the firearm used in the crime for F.S.L. examination to determine whether the same was used in the crime or not. 26. It has come in the statement of PW1 Rajendra Singh that PW3 Raj Bal and PW6 Lekh Raj were present when he had gone to the police station at the time of lodging the report. These persons have also attended the last rites of the deceased. They have also attended the ceremony which was held on the third day after the death of Sewak Ram. It was thus, expected from PW3 Raj Bal and PW6 Lekh Raj to disclose the incident when they have attended the last rites and religious ceremony on the third day after the death of Sewak Ram. PW6 Lekhraj has admitted that he has occupied the house of appellant during his trial. 27. The motive attributed to the appellant to murder Sewak Ram is that Babu Ram’s daughter was involved with Sewak Ram. According to PW1 Rajendra Singh, the appellant had threatened Sewak Ram of dire consequences four days back. PW1 Rajendra Singh in his cross-examination has categorically admitted that he has not made any complaint to the villagers. It was expected from a father to lodge the report or to file a complaint either with the Panchayat or with the police, in case his son faced any threat. The prosecution could not prove any motive. 28. PW1 Rajendra Singh in his cross-examination has categorically admitted that he has not made any complaint to the villagers. It was expected from a father to lodge the report or to file a complaint either with the Panchayat or with the police, in case his son faced any threat. The prosecution could not prove any motive. 28. PW2 Ishwar Pal has deposed that the accused has got the country made pistol recovered from the field and proclaimed that he has killed Sewak Ram with this pistol. This extrajudicial confession was made by the appellant in presence of police personnel. It is settled law that a statement made by the accused in the police custody is hit by the provisions of Sections 25 and 26 of the Indian Evidence Act. 29. The Trial Court has erred in law by taking into consideration the inadmissible evidence. The judgment of the Trial Court is based on surmises. It is settled law that howsoever strong suspicion is, it cannot result in conviction. The prosecution has to prove its own case. We have also gone through the recovery memo whereby the photographs of a girl were recovered from the wallet of deceased. It is evident from the naked eye that interpolation was made towards the end of statement of PW6 Lekhraj. 30. Accordingly, both the appeals are allowed. Judgment and order, under challenge, is set aside. Appellant Babu Ram is acquitted of the charges framed against him. He is in jail. Let he be released forthwith if not wanted in connection with any other matter. 31. LCR along with a copy of judgment be sent to the court concerned for compliance.