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2019 DIGILAW 509 (UTT)

DALIP BAHADUR v. STATE OF UTTARAKHAND

2019-09-20

ALOK SINGH, RAVINDRA MAITHANI

body2019
JUDGMENT Hon'ble Ravindra Maithani, J. (Oral) Challenge in this appeal is the judgment and order dated 05.12.2016 and 06.12.2016, passed in Sessions Trial No. 22 of 2014, State versus Dalip Bahadur, by the Court of learned IInd Additional District and Sessions Judge, Haldwani. By the impugned judgment and order, the appellant has been convicted under Sections 302 and 201 IPC and sentenced as hereunder; (i) Under Section 302 of IPC, imprisonment for life with a fine of Rs. 3,000/-. In default of payment of fine to undergo imprisonment for a further period of six months. (ii) Under Section 201 of IPC, three years rigorous imprisonment with a fine of Rs. 1,000/-. In default of payment of fine to undergo simple imprisonment for a further period of three months. 2. Prosecution case, briefly stated, is as hereunder:- On 02.12.2013, a Gopal Ram, informed the police that the dead body of his brother Padam Ram is lying in a canal, in front of Ashok Leyland. The informant originally belongs to Nepal and was in Haldwani, District Nainital at the relevant time. This information was lodged as Report No. 12, time 09:15 at Police Station Haldwani, District Nainital and police personnel proceeded to the spot. Inquest of the deceased Padam Ram was conducted by PW5 B.S. Bisht on 02.12.2013. There were injuries on the person of the deceased. The punch witnesses suggested post-mortem. Post-mortem examination of the deceased Padam Ram was conducted on the same day, at 02:30 p.m., by PW4 Dr. C.P. Bhaisora. The cause of death was shock and haemorrhage, as a result of cut throat injury on neck, caused by sharp cutting weapon. 3. On the same day, Gopal Ram gave a report at the police station, stating therein, that on Wednesday Padam Ram, in an inebriated state, had a quarrel with the appellant and a Raju at Pratap Singh Dabha. Due to this reason, appellant and Raju killed Padam Ram and threw his body in the canal. Based on this information, a Case Crime No. 583 of 2013, under Sections 302 & 201 of IPC was registered against the appellant and co-accused Raju. Investigation was carried out. The Investigating Officer took into custody the blood stained and plain grass, from which, the dead body of Padam Ram was recovered. Appellant and co-accused were arrested. Based on this information, a Case Crime No. 583 of 2013, under Sections 302 & 201 of IPC was registered against the appellant and co-accused Raju. Investigation was carried out. The Investigating Officer took into custody the blood stained and plain grass, from which, the dead body of Padam Ram was recovered. Appellant and co-accused were arrested. Appellant got recovered the blood stained clothes, which he had worn at the time of committing the crime. At the instance of the appellant, a blade, by which, the deceased Padam Ram was killed, was also got recovered. All these articles were sent for forensic examination. The site plans of various places were prepared and after investigation charge-sheet was submitted against the appellant and co-accused Raju, under Sections 302 & 201 IPC. Cognizance was taken and the case was committed to the court of sessions for trial. 4. On 13.06.2014, charges under Sections 302 read with 24 and 201 of IPC were leveled against the appellant and co-accused Raju. To which, they denied and claimed trial. 5. In order to prove the case the prosecution examined fifteen witnesses, namely, PW1 Anil Ram, PW2 Pratap Singh, PW3 Narendra Singh, PW4 Dr. C.P. Bhaisora, PW5 S.I. B. S. Bisht, PW6 A.S.I. Vinod Ghai, PW7 Constable 142 Bhuwan Chandra Pandey, PW8 Rahul Singh Bohra, PW9 Trilok Ram, PW 10 Munna Ram, PW11 Dalip Ram, PW12 Kushal Singh Nagarkoti, PW13 Constable 66 Harish Chandra Joshi, PW14 S.I.Trilok Ram Bagretha and PW15 Smt. Shashi Prabha Tomar. 6. During the trial, co-accused Raju died and vide order dated 15.09.2016, the case abated against him. 7. Appellant was examined under Section 313 of the Code of Criminal Procedure, 1973 (for short “the Code"). According to him, he has been falsely implicated. He has not committed the offence. He did not adduce any evidence in his defence. 8. The learned court below convicted and sentenced the appellant, as stated hereinbefore. Aggrieved the appeal. 9. Heard learned counsel for the parties and perused the record. 10. Learned Amicus Curiae would argue that there is no eyewitness of the alleged recovery. Had the appellant committed the offence he would have hidden the clothes. The recovery is not believable. The case is not proved against the appellant. 11. Aggrieved the appeal. 9. Heard learned counsel for the parties and perused the record. 10. Learned Amicus Curiae would argue that there is no eyewitness of the alleged recovery. Had the appellant committed the offence he would have hidden the clothes. The recovery is not believable. The case is not proved against the appellant. 11. On behalf of the State, learned counsel would argue that PW8 Rahul Singh Bohra and PW9 Trilok Ram have given last seen evidence; the Forensic Science Laboratory, report is positive; blood was detected on the clothes, which were recovered from the residence of the appellant. The weapon of offence, a blade was also recovered at the instance of the appellant. Hence case is proved. 12. This case is based on circumstantial evidence. Law on this point is much clear. The chain of events should be connected together to make a complete chain, which may lead to one and only one conclusion that it is the accused, who has committed the crime and which may deny the inference of innocence of the accused. This case is also based on circumstantial evidence. 13. It may be noted that the first informant who lodged the FIR, died before the trial began. PW1 Anil Ram has stated about this fact. He proved the FIR lodged by Gopal Ram. In his presence inquest was prepared and blood stained soil and grass and plain soil & grass was also taken into custody by the police. 14. PW5 B.S. Bisht was posted as Sub Inspector, in the Police Chowki having jurisdiction. He prepared the inquest and also prepared other papers for sending the dead body for post mortem. This witness took into custody the plain and blood stained soil and grass and prepared memo thereof. He also took other articles. PW10 Munna Ram, PW11 Dalip Ram and PW7 Constable Bhuwan Chandra Pandey were also present, when the inquest was prepared. They have stated about it. According to PW10 Munna Ram and PW11 Dalip Ram, the appellant and co-accused had a quarrel with the deceased, some 4-5 days prior to the date of recovery of the dead body. After the quarrel appellant and co-accused had taken the deceased along with them. But none of these witnesses had seen the appellant taking the deceased along with them. On this aspect, their statement is just hearsay statement. 15. PW4 Dr. C.P. Bhaisora conducted post mortem. After the quarrel appellant and co-accused had taken the deceased along with them. But none of these witnesses had seen the appellant taking the deceased along with them. On this aspect, their statement is just hearsay statement. 15. PW4 Dr. C.P. Bhaisora conducted post mortem. He has stated about the injuries. According to Dr. C.P. Bhaisora, the cause of the death was shock and haemorrhage, as a result of cutting of the neck by sharp edged weapon. PW12 is a formal witness who proved chik F.I.R and entries in the general diary of the police station. PW13 Harish Chandra Joshi took the articles at Forensic Science Laboratory. 16. PW14 S.I. Trilok Ram Bagretha is the Investigating Officer. He prepared the site plans, arrested the appellant and the co-accused. According to him, they confessed and at the instance of appellant, a blade was recovered. Appellant also, according to this witness got his clothes recovered from his house, which he had worn at the time of incident. This witness proved all those articles and charge sheet. PW6 A.S.I. Vinod Ghai was with him when these recoveries were made. PW3 Narendra Singh is another witness. According to him, on 03.12.2013, police recovered clothes from the house of appellant. 17. PW15 Smt. Shashi Prabha Tomar proved Forensic Science Laboratory Report. According to the report, blood was detected on the pant and shirt of the appellant, which was human blood. Blood was also detected from the blade. Its source could not be determined because it had disintegrated. There is no independent witness of recovery of the blade as well. So this is something very weak kind of evidence. 18. To prove the last seen theory, there are three witnesses, namely PW2 Pratap Singh, the owner of the Dhaba, PW8 Rahul Singh Bohra and PW9 Trilok Ram, who were working in the Dhaba of PW2 Pratap Singh. PW2 Pratap Singh has not supported the prosecution case. He has been declared hostile. Nothing has been elicited from his cross-examination, which may help, in any manner, the prosecution case. PW8 Rahul Singh Bohra and PW9 Trilok Ram have stated that some two years ago at about 9:00 and 9:15 pm, three people, in an inebriated condition, had come at their Dhaba. One of them was tall and two of normal height. They were quarrelling. PW8 Rahul Singh Bohra and PW9 Trilok Ram have stated that some two years ago at about 9:00 and 9:15 pm, three people, in an inebriated condition, had come at their Dhaba. One of them was tall and two of normal height. They were quarrelling. The Dhaba owner had asked them to leave the Dhaba and then they all went away from their Dhaba. Some 3-4 days thereafter, they heard that the tall man's dead body was found at a distance of 1-1.5 km from the dhaba. These witnesses did not recognize the appellant in the Court. They have not stated the name of the appellant. The owner of the Dhaba, PW2 Pratap Singh has not supported the statements of PW8 Rahul Singh Bohra and PW9 Trilok Ram. The last seen evidence is not against the appellant. It is not proved by the prosecution that it is the appellant, who was last seen with the deceased. 19. There is no other evidence with regard to the implication of the appellant. Insofar as recovery is concerned as stated, a blade is allegedly recovered at the instance of appellant, but it could not be connected with the offence. Even the Forensic Science Laboratory could not detect, as to whether, it had human blood or not? 20. The only evidence against the appellant is that some blood stained clothes were recovered from his house. Whose blood was it; it was not established? Merely, this evidence cannot be basis for his conviction. The chain of events is not complete. In fact, there is no event, as such. There is only one incriminating circumstance against the appellant i.e recovery of blood stained clothes from his house. But, as stated, they are not connected with the offence. Therefore, this Court is of the view that the prosecution utterly failed to prove the charges against the appellant. The appellant ought to have had acquitted of the charges. The learned court below committed an error in convicting and sentencing the appellant. Therefore, the appeal deserves to be allowed. 21. The appeal is allowed. 22. The judgment and order dated 05.12.2016 and 06.12.2016 passed in S.T. No. 22 of 2014 is hereby set aside. Appellant is acquitted of the charges under Section 302 IPC and 201 IPC. 23. Appellant is in jail. Therefore, the appeal deserves to be allowed. 21. The appeal is allowed. 22. The judgment and order dated 05.12.2016 and 06.12.2016 passed in S.T. No. 22 of 2014 is hereby set aside. Appellant is acquitted of the charges under Section 302 IPC and 201 IPC. 23. Appellant is in jail. He be released forthwith, if not wanted in any other case, subject to his furnishing a personal bond and two sureties by each one of them, each of the like amount to the satisfaction of learned court below, under Section 437A of the Code. 24. Let a copy of this judgment be transmitted the learned court below for compliance.