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2019 DIGILAW 85 (UTT)

Banti Chauhan v. State of Uttarakhand

2019-02-14

RAVINDRA MAITHANI, SUDHANSHU DHULIA

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JUDGMENT : SUDHANSHU DHULIA, J. 1. This criminal appeal has been filed by the appellant challenging the judgment and order dated 03.01.2013 passed by 1st Additional Sessions Judge, Udham Singh Nagar in Sessions Trial No.203 of 2007 “State Vs. Banti Chauhan & others”, whereby the accused/appellant has been convicted under Section 302 of IPC and has been sentenced for life imprisonment with a fine of Rs.5,000/- (Rupees Five Thousand Only) and in case of default in payment of fine, he shall undergo six months additional rigorous imprisonment. 2. An F.I.R. was lodged on 21.06.2007 by the complainant Mahendra Singh S/o Kallu Singh stating that yesterday i.e. on 20.06.2007, at about 10 P.M., in the night, his son Omkar Singh @ Kale left his house for the stadium to participate in the “Devi Jagran”, but did not return. In the morning, his dead body was recovered in a vacant room, which is close to his house. There are marks on his neck and the complainant strongly suspects that his son has been killed by some unknown persons. The inquest report also records that the dead body, which was recovered near the house of the deceased from the vacant room. The inquest report also records that the mouth of the deceased was opened, eyes were closed, left hand was straight lying on the right chest, foam was coming out from his mouth, etc. The description of the dead body is as follows: Wheatish in colour, average eyes, ears and nose, height about 5, 6 aged about sixteen years. 3. Postmortem was conducted on 21.06.2007. The description of ante-mortem injuries is as follows:- “Ligature mark completely encircling the neck below the thyroid cartilage transversely present meas. 28 cm X 2 cm, with bruise over. Lt. side of neck meas. 5 cm X 3 cm, 2 cm, below the ligature mark the base is soft, reddish with hemorrhage infiltration, sub. Culaneous tissue is echymosed. Tracheal rings and Lt. Ala of thyroid is fractured. Abrasions around the ligature mark present. Face is congested, livid and marked with patechial. 2. Abraded laceration with bruising over lateral upper surface of Rt. Upper arm just below the shoulder tip meas. 6 cm X 3 cm. 3. Abraded bruise over Rt. forehead meas. 3cm X 1 cm. 4. Abraded bruise over Lt. shoulder tip meas. 4cm X 2 cm. 4. Face is congested, livid and marked with patechial. 2. Abraded laceration with bruising over lateral upper surface of Rt. Upper arm just below the shoulder tip meas. 6 cm X 3 cm. 3. Abraded bruise over Rt. forehead meas. 3cm X 1 cm. 4. Abraded bruise over Lt. shoulder tip meas. 4cm X 2 cm. 4. The cause of death was asphyxia as a result of ante-mortem strangulation. The Police after investigation arrested the present appellant along with three persons, namely, Anuj Kumar S/o Bhure Singh, Kulwant Singh S/o Mahilal, Manoj S/o Om Prakash. 5. After investigation by the Police, charge-sheet was filed against all the accused persons. Thereafter, the present appellant was taken into Police custody and a cable wire was recovered on his pointing out on 22.06.2007. The matter was committed to Sessions Court, where charges were framed against the accused/appellant under Section 302/34 of IPC vide order dated 21.10.2008. 6. At this stage, we must also state that though this is a case of circumstantial evidence, but a motive has also been assigned by the prosecution, which as per the prosecution was that two days prior to the incident i.e. on 19.06.2007, the present appellant was fighting with PW-3 Manoj Rawat. The complainant intervened in the matter and slapped the appellant and the fight was diffused. The appellant meanwhile felt insulted as he was slapped by the complainant and threatened the complainant that this slap will cost him very heavy. The entire case of the prosecution hence rests on this motive which has been assigned, i.e. the appellant was slapped by the complainant and consequently the appellant had avenged himself by killing complainant’s son. 7. This being the case of circumstantial evidence, the evidence which the prosecution must present before the Court must be clinching and the chain of evidence must be completed and the evidence must point towards only one conclusion which is that it is the appellant who has committed the crime, and none else. There can be no other conclusion. In other words, a very heavy burden lies with the prosecution to prove its case before Court, beyond a reasonable doubt! 8. There can be no other conclusion. In other words, a very heavy burden lies with the prosecution to prove its case before Court, beyond a reasonable doubt! 8. PW-1 Mahendra Singh who was examined on 12.01.2011 states that as to how his son had gone for “Devi Jagran” on the fateful day of 20.06.2007 and how his body was recovered on the next day and then narrates the incident, which was of 19.06.2007, when he slapped the appellant and whereby he was threatened by him. He was also informed later on that on the fateful day when his son had left for participating in “Devi Jagran”, Nirmal Singh along with Banti, Anuj Kumar, Kulwant Singh were seen sitting on the “Chamunda” culvert at about 10:00 p.m., in the night. He has therefore no doubt that it is these persons who had killed his son. 9. We must note here that it is not PW-1 Mahendra Singh, who had seen these persons on “Chamunda” culvert on the same day, but there were other witnesses, two of whom have turned hostile. But again, this evidence is not an evidence of last seen as even PW-2 Onkar’s (of which statement, we will come shortly) had not seen the accused with the deceased, but he has only seen the accused with other co-accused sitting on the “Chamunda” culvert, on the fateful day. This evidence cannot be said to be an evidence of last seen. 10. PW-2 Onkar again is the witness, who is the brother of the deceased and who had seen all the accused sitting on the “Chamunda” culvert on the fateful day. Since the accused were sitting together, prior to the alleged commission of crime an inference has been drawn that they had committed this crime together as the body of the deceased was recovered from a place which is at a short distance from where the accused was spotted. 11. The important witness, PW-3 Manoj Rawat says that on 17.06.2007, he was going to the shop for making purchase when he had some altercation with “Banti” (i.e. the appellant before us), and thereafter Mahendra Singh (complainant), intervened in the matter and he slapped Banti in order to stop the fight. 12. There is a discrepancy between the statements of PW-1 Mahendra Singh and PW-2 Onkar. 12. There is a discrepancy between the statements of PW-1 Mahendra Singh and PW-2 Onkar. PW-2 says that this incident happened on 17.06.2007 and according to PW-1 Mahendra Singh, this incident happened on 19.06.2007. The important witnesses were PW-6 Kapil Kumar and PW-7 Harish Juyal, who had seen the incident, but they have turned hostile. 13. The other piece of evidence as per the prosecution, on the basis of which, the trial court actually convicted the appellant is the recovery which is made on 22.06.2007. In case of disclosure made by the accused when he was in the Police custody and this disclosure leads to recovery of any material that is liable to be read as an “evidence” under Section 27 of the Indian Evidence Act, 1872. Section 27 of the Indian Evidence Act, 1872 reads as under:- “27. How much of information received from accused may be proved.- Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.” 14. What is important is that the disclosure first has to be made and that disclosure must lead to the recovery. In this case, it is not clear. This is the only evidence with the prosecution. However, the manner in which the recovery has been made is also extremely faulty as there is no disclosure which has lead to the recovery. This has not come out in the recovery memo. Even if the recovery is as per Section 27 of the Indian Evidence Act, 1872, the fact remains that this conviction cannot be made on the basis of the recovery of the cable wire, particularly when that cable wire was not sent for forensic examination. 15. In the light of the above, the criminal appeal succeeds and is allowed. Conviction and the sentence imposed on the appellant by the trial court vide judgment and order dated 03.01.2013 is hereby set aside. The appellant is on bail, he need not to surrender. His sureties are discharged. 16. Let a copy of this judgment along with the Lower Court Record be sent to the court concerned for onward compliance.