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2017 DIGILAW 549 (UTT)

Basant @ Chotu v. State of Uttarakhand

2017-10-12

RAJIV SHARMA, SHARAD KUMAR SHARMA

body2017
JUDGMENT : Rajiv Sharma, J. This appeal is instituted against the judgment and order dated 12.12.2012, rendered by learned Additional Sessions Judge, Haldwani Nainital in Sessions Trial No.29 of 2009 and Sessions Trial No.31 of 2009, whereby the appellant, was charged with and tried for the offences under Section 302 IPC and Section 25 of the Arms Act. The appellant was convicted and sentenced to undergo life imprisonment under Section 302 IPC and to pay a fine of Rs.5,000/- and in default of payment of fine to under additional imprisonment for a period of one year. He was also convicted and sentenced to undergo rigorous imprisonment for a period of one year under Section 25 of the Arms Act and to pay a fine of Rs.1,000/- and in default of payment of fine to undergo additional 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 PW1 Umesh Kumar lodged a report on 16.09.2008 to the effect that his father was coming from Ranibhag towards Kathgodam at about 06:15 PM. The road near Gulabghati was damaged. He got down from the motorcycle to urinate. In the meantime, two persons came on motorcycle. One was the son of his uncle, who was a pillion rider. The second person was wearing helmet. Basant fired two gunshots at his father and he pushed down the father of PW1 Umesh Kumar along with the motorcycle in a ditch. The appellant ran away from the spot. He raised the alarm. After sometime, 108 Ambulance also came and he took his father to Haldwani Base Hospital. He was declared dead. The body was sent for postmortem examination. The postmortem was conducted. According to postmortem examination, the deceased died due to shock and hemorrhage as a result of injury to brain, lungs and liver due to fire arm bullet injury. The FIR was registered and the investigation was carried out and the challan was put up after completing all the codal formalities. The prosecution has examined as many as six witnesses in its support. The statement of the appellant was also recorded under Section 313 of Cr.P.C. He has denied the case of the prosecution. He has cited two witnesses in support of its case. The appellant was convicted and sentenced, as noticed hereinabove. The prosecution has examined as many as six witnesses in its support. The statement of the appellant was also recorded under Section 313 of Cr.P.C. He has denied the case of the prosecution. He has cited two witnesses in support of its case. The appellant was convicted and sentenced, as noticed hereinabove. Hence, this appeal. 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 and order dated 12.12.2012. 4. We have heard learned counsel for both the parties and perused the judgment and record very carefully. 5. PW1 Umesh Kumar has deposed that the appellant was his uncle’s son. His father was a businessman. The business was good. The appellant was jealous of it. On 16.09.2008, at about 06:15 PM, he along with his father has dropped the straw. He along with his father was coming towards Haldwani on motorcycle. He got down to urinate. His father was standing near the motorcycle. When he started urinating, he heard the noise of gunshot. He turned back. Motorcycle was driven by one person wearing helmet. He could not recognize him. Basant came down and fired two gunshots at his father. His father collapsed. Basant pushed his father along with motorcycle in the ditch. He started shouting. The appellant ran away from the spot. Somebody summoned 108 Ambulance. He took his father to Haldwani Base Hospital, where he was declared dead. In his cross-examination, he has admitted that there was police station at Kathgodam while going towards Haldwani. Ambulance had come at 06:30 PM. He has denied the suggestion that he was not present on the spot. He has further deposed that there three gunshots were fired. He informed one Narayan Singh on his mobile. He has admitted that he has mentioned only two gunshots to Narayan Singh, since he has seen only two gunshots being fired. 6. PW2 Dr. C.P. Bhaisoda has conducted the postmortem examination. He has noticed three entry points of gunshots and three exit points. According to him, the cause of death of the deceased was shock and hemorrhage as a result of injury to brain, lungs and liver due to fire arm bullet injury. 7. PW3 S.I. P.C. Joshi has deposed that he has prepared the panchayatnama. He has noticed three entry points of gunshots and three exit points. According to him, the cause of death of the deceased was shock and hemorrhage as a result of injury to brain, lungs and liver due to fire arm bullet injury. 7. PW3 S.I. P.C. Joshi has deposed that he has prepared the panchayatnama. The news of death of deceased was received from the Base Hospital Haldwani. 8. PW4 Dan Singh Mehta has deposed that he was working as Head Mohrir at Police Station Kathgodam on 16.09.2008. He has registered chick FIR vide exhibit A-1. 9. PW5 Jagdish Singh has deposed that he was posted as S.O. at P.S. Kathgodam on 16.09.2008. The FIR was registered under Section 302 IPC. He started investigation. He arrested the appellant. The country made pistol was recovered at the instance of the appellant having .315” bore and cartridge. He prepared the recovery memo. The appellant also signed the same. He has also submitted the application before the Court on 27.09.2008 seeking issuance of non-bailable warrant against the appellant Horam. He prepared the spot map. He has also lifted blood soaked soil. These were sent for FSL examination. He identified the country made pistol and cartridge in the Court, which were got recovered by the appellant. 10. PW6 ASI Paniram Tamta has deposed that FIR was registered against the appellant under Section 25 of the Arms Act. He was the Investigating Officer. He sought the permission of District Magistrate to lodge a criminal case against the appellant. The prosecution was sanctioned. In his cross-examination, he has deposed that there were bushes around the place of recovery of country made pistol. He was not aware about the marking on the cartridges. He did not know the name of Ordinance Factory written on the cartridge. He could not see the number of the cartridge and brand, since the same was lying on the table of the District Magistrate. 11. DW1 Puran Chandra has deposed that he knew Roop Kishore. He used to supply him straw on 16.09.2008. He went towards Haldwani on the motorcycle of Roop Kishore. There were only two persons on the motorcycle. He did not know who has killed Roop Kishore. 12. DW2 Sudhir Vijalwan has also deposed that he has supplied the information through RTI. 13. There is variance in the contents of FIR and the statement made by PW1 Umesh Kumar. He went towards Haldwani on the motorcycle of Roop Kishore. There were only two persons on the motorcycle. He did not know who has killed Roop Kishore. 12. DW2 Sudhir Vijalwan has also deposed that he has supplied the information through RTI. 13. There is variance in the contents of FIR and the statement made by PW1 Umesh Kumar. According to contents of FIR, only two gunshots were fired recorded by PW1 Umesh Kumar. However, while appearing as witness PW1, he has deposed that three gunshots were fired. He has tried to explain it. It is not believable that PW1 Umesh Singh would not have remembered the three gunshots being fired at the spot at his father. According to PW1 Umesh Singh, the appellant was the pillion rider. He came down and fired at his father. His father collapsed and thereafter, the appellant pushed his father along with motorcycle into the ditch. The police had not recovered the motorcycle from the ditch. It was necessary for the police to recover the motorcycle to connect the appellant with the commission of offence. The country made pistol was sent for FSL examination. The FSL examination report does not support the case of the prosecution. The results of FSL examination reads as under:- Results of Examination 1. The barrel swabs of pistol marked ‘A’ were taken for chemical examination. On chemical examination firing discharge residues were detected in barrel of pistol marked ‘A’. I therefore, came to the conclusion that the pistol marked ‘A’ has been fired through. 2. It has not been possible to form any opinion regarding the linkage or otherwise of the .315”/8mm cartridge cases marked ‘C-1’ and ‘C-2’ with the country made pistol marked ‘A’ due to lack of sufficient individual characteristic marks on cartridge cases marked ‘C-1’ and ‘C-2’. 14. It is thus, evident from the report as quoted hereinabove that it was not possible to form any opinion regarding the linkage or otherwise of the .315”/8mm cartridge cases marked as ‘C-1’ and ‘C-2’, due to lack of sufficient individual characteristic marks. 15. PW1 Umesh Kumar has deposed that somebody has called for the 108 ambulance. He has categorically deposed in his cross-examination, that he was carrying his mobile phone and he informed Narayan Singh about the incident. 15. PW1 Umesh Kumar has deposed that somebody has called for the 108 ambulance. He has categorically deposed in his cross-examination, that he was carrying his mobile phone and he informed Narayan Singh about the incident. In case, he was present on the spot, he should have called the ambulance also to remove his father to hospital. 16. The motive attributed to the appellant is that his father had a very good business of selling straw/husk and the appellant was not happy with it. The prosecution has not spelt out why the appellant was not happy with the business of his uncle, leading to his murder. 17. The case of the prosecution, is that, second man was also riding motorcycle. He was wearing helmet. The appellant was a pillion rider. The police has never arrested the second person, who was allegedly involved in the commission of crime. The Investigating Officer has only stated that he has tried to obtain non-bailable warrants against Horam but the matter was closed. Since there is variance in the statement of PW1 Umesh Kumar and the contents of FIR, his presence on the spot is doubtful. The prosecution has not examined any witness who had come on the spot. 18. DW1 Puran Chandra has deposed that he along with Roop Kishore was coming towards Kathgodam on motorcycle on 18.09.2008. There was no third person with them. 19. DW2 Sudhir Vijalwan, in his statement has deposed that neither Harish nor Umesh have travelled in 108 ambulance. DW1 Puran Chandra, in his cross-examination, has deposed that the son of Roop Kishore has not come to his shop. 20. The case of the prosecution is also that the appellant has pushed his father along with motorcycle in a ditch. However, PW2 Dr. C.P. Bhaisoda has not noticed any abrasions on his body except three fire arm entry points. 21. The prosecution has failed to prove its case against the appellant beyond reasonable doubt. Accordingly, the appeal is allowed. Impugned judgment and order dated 12.12.2012 is set-aside. The appellant is acquitted of the charges framed against him. The appellant is on bail. He needs not to surrender. His bail bond and surety are discharged. 22. Let a copy of this judgment along with LCR be sent to the trial court.