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2022 DIGILAW 32 (UTT)

Sachin v. State of Uttarakhand

2022-03-05

RAVINDRA MAITHANI

body2022
JUDGMENT : Ravindra Maithani, J. Since, common question of facts and law are involved in both these criminal jail appeals, they are being decided by the common judgment. 2. Appellant Sachin has been convicted under section 307 and 394 IPC on 30.11.2021 in Sessions Trial No. 13 of 2018, State Vs. Sachin by the court of 2nd Additional Sessions Judge, District Haridwar. He has been sentenced on 02.12.2021 as hereunder; (i) Under Section 307 IPC, rigorous imprisonment for 7 years and a fine of Rs. 10,000/-. (ii) Under section 394 IPC, rigorous imprisonment for 7 years and a fine of Rs. 10,000/-. In default of payment of fine, it has further been directed that the appellant shall undergo simple imprisonment for a further period of one month. The appellant has also been convicted under Section 25 of the Arms Act, 1959 (for short, “the Arms Act”) on 31.11.2021 in Sessions Trial No. 14 of 2018, State Vs. Sachin by the court of 2nd Additional Sessions Judge, Haridwar. He has been sentenced to rigorous imprisonment for five years and a fine of Rs. 5,000/-. In default of payment of fine, it has been directed that the appellant shall undergo imprisonment for a further period of one month. 3. Criminal Jail Appeal No. 71 of 2021 has been preferred against the conviction and sentence of the appellant recorded under Sections 307 and 394 IPC. Criminal Jail Appeal No. 73 of 2021 has been preferred against the conviction and sentence of the appellant under Section 25 of the Arms Act. 4. Prosecution case, briefly stated is as follows:- On 08.07.2017, PW2 Monu, who was Driver in a Container Registration No. HR55F9574 (“the Truck”) was driving the truck from Haridwar to Delhi. At 11:00 in the night, he stopped the truck to answer the call of nature. As he was relieving himself, two boys approached them and demanded money from them. The Conductor gave money, but PW2 Monu objected to it. Those two miscreants fired at PW2 Monu, which hit him on the right side of the stomach. He was seriously injured. A passerby informed the police. The police took PW2 Monu to the Hospital, where he was operated upon. PW1 Bhura, who is brother of PW2 Monu lodged the report on 09.07.2017 at 10:30 AM. A case was lodged. Those two miscreants fired at PW2 Monu, which hit him on the right side of the stomach. He was seriously injured. A passerby informed the police. The police took PW2 Monu to the Hospital, where he was operated upon. PW1 Bhura, who is brother of PW2 Monu lodged the report on 09.07.2017 at 10:30 AM. A case was lodged. According to the prosecution, on 29.08.2017, upon an information having been received, when the person intercepted, he tried to run away. He was the appellant. When the police questioned him as to why did he try to run away, he disclosed that he had a country-made pistol. A search was made. A country-made pistol with a cartridge stuck on its barrel and a live cartridge was recovered from the possession of the appellant. Rs. 1900/- and a driving license of PW2 Monu and other documents were also recovered. On further questioning, the appellant revealed that he committed loot on 08.07.2017. A recovery memo was then prepared and another case under Section 25 of the Arms Act was lodged against the appellant. After investigation, two separate charge sheets, one under Section 307, 394, 411 IPC and another under Section 25 Arms Act, were submitted against the appellant, which is the basis of the Sessions Trial No. 13 of 2018 and Sessions Trial No. 14 of 2018 respectively. 5. In Session Trial No.13 of 2018, charge under Sections 394, 411, 307 read with 34 IPC was framed on 15.02.2018, to which the appellant denied and claimed trial. The prosecution has examined seven witnesses, namely, PW1 Bhoora, PW2 Monu, PW3 Dr. R.S. Prasad, PW4 Constable Ram Singh, PW5 Sub Inspector Sanjay Sharma, PW6 Sub Inspector Ajay Kumar and PW7 Vijay Kumar. The appellant was examined under Section 313 of the Code of Criminal Procedure, 1973. 6. In Session Trial No.14 of 2018, charge under Section 25 of the Arms Act was framed on 15.02.2018 to which the appellant denied and claimed trial. The prosecution has examined four witnesses, namely, PW 1 Sub Inspector, Sanjay Sharma, PW2 Sub Inspector Ajay Singh, PW3 Sub Inspector Umesh Negi and PW4 Constable Subhash Bhandari. The appellant was examined under Section 313 of the Code. 7. By the impugned judgment and orders, passed in both these sessions trials, the appellant has been convicted and sentenced, as stated hereinbefore. Aggrieved by it, these two appeals have been preferred. 8. The appellant was examined under Section 313 of the Code. 7. By the impugned judgment and orders, passed in both these sessions trials, the appellant has been convicted and sentenced, as stated hereinbefore. Aggrieved by it, these two appeals have been preferred. 8. Heard learned counsel for the parties and perused the record. 9. The Court proceeds to examine the truthfulness of the prosecution case from the record of Criminal Jail Appeal No. 71 of 2021. In case reference is made to any document from Criminal Jail Appeal No. 73 of 2021, a special mention shall be made. 10. Learned Amicus Curiae would submit that it is no evidence case; Source of light has not been revealed either in the FIR or in the statement of any of the witnesses; PW2 Monu did not have any opportunity to identify the miscreants, who looted him; the FIR is doubtful because according to PW1 Bhoora, he was told about the incident by his brother PW2 Monu. Whereas, PW2 Monu has revealed that he did not remember as to whether he disclosed the incident to his brother. 11. Learned State counsel would submit that on 29.08.2017, when a country-made pistol was recovered from the possession of the appellant, he confessed the guilt; PW2 Monu has stated that he had 2- 3 minutes conversation with the miscreants at the time of incident, therefore, he could identify the appellant. Learned counsel has also referred to the statement of PW3 Dr. R.S. Pant to argue that, in fact, the bullet was retrieved from the body of the injured. 12. PW2 Monu is the injured witness. According to him, on 08.07.2017, he alongwith Conductor Bablu was on the truck moving from Haridwar to Delhi. They stopped the vehicle and were relieving themselves. At that time, two person one armed with Danda and another armed with country-made pistols approached them and demanded money. The Conductor gave money, but this witness objected to it. This witness was fired at, which hit him on the right side of the stomach. He started bleeding. The assailants thereafter entered in the cabin of the truck and took Rs.7000-8000/-, ATM cards, Driving license and other documents. While running from the place of occurrence, this witness spotted a motorcyclist and revealed the incident to him. He informed the police. Police admitted him in the hospital. He started bleeding. The assailants thereafter entered in the cabin of the truck and took Rs.7000-8000/-, ATM cards, Driving license and other documents. While running from the place of occurrence, this witness spotted a motorcyclist and revealed the incident to him. He informed the police. Police admitted him in the hospital. In his examination in chief, PW2 Monu had identified the appellant as a person, who looted him and injured him. 13. PW1 Bhoora is brother of the injured PW2 Monu. According to him, when he was informed about the incident, he reached hospital; his brother disclosed him about the incident and he lodged the FIR Ex. A1. 14. PW3 Dr. R.S. Prasad proved the medical injury report Ex. A3, which records the case summary and procedure as hereunder:- “CASE SUMMARY: 25 yrs age admitted as critical case with alleged H/o gunshot wound (R) Chest held on 38.7.17 at 1030 PM near bypass bahadrabad on initial exam patient in shock with severe bleeding entry wound at (R) lat aspect of chest with swelling over mid back without exit wound X Ray/CT Scan revealed Bullet in right near L1 vertebra with multiple rib#. Immediately resuscitation done with surgical interventions. Bullet was removed & found wound communicating to pleural cavity. Chest tube placed in (R) side. Post Op. Recovery satisfactory. Would closure done and chest ribs removed. Patient comfortable and fit for discharge. PROCEDURE/OPERATION DONE, IF ANY: Wound debridement & exposure and Bullet removal 9.7.17 chest tube insertion and wound closure on 9..7.17 chest tube removal on 13.7.17 with purse string suturing.” 15. PW3 Dr. R.S. Prasad reiterated those observations. He has also proved bullet Ex. 7 which was retrieved from the body of the injured PW2 Monu. 16. PW4 Constable Ram Singh is the GD writer. He has stated about it. 17. PW6 Sub Inspector, Ajay Singh took investigation of the case under Sections 307, 394 IPC. He has stated about the recovery made from the appellant on29.08.2017. According to him, upon information having been received, when intercepted the appellant tried to run away. On questioning, he revealed that he had a country made pistol. A search was made and a country made pistol was recovered from him. It had a cartridge stuck on it and a live cartridge was also recovered from him. According to him, upon information having been received, when intercepted the appellant tried to run away. On questioning, he revealed that he had a country made pistol. A search was made and a country made pistol was recovered from him. It had a cartridge stuck on it and a live cartridge was also recovered from him. This witness has also stated about the recovery of driving license of PW2 Monu and other documents from the appellant. According to PW6 Ajay Singh, the appellant had confessed his guilt. 18. PW5 Sub Inspector, Sanjay Sharma has also stated about the recovery of country made pistol and articles from the appellant on 29.08.2017. 19. PW7 Sub Inspector, Vijay Kumar is the second Investigating Officer, who filed charge sheet against the appellant for the offence under Sections 307 and 394 IPC. 20. In Sessions Trial No. 14 of 2018, PW1 Sub Inspector, Sanjay Sharma and PW2 Sub Inspector, Ajay Singh are the witnesses to the recovery. PW3 Umesh Negi is the Investigating Officer in that case. 21. According to the prosecution case, PW2 Monu, the injured was along with his Driver Bablu. PW2 Monu has stated that when demanded, the Conductor Bablu had given money to the assailant. Bablu has not been examined why? Had he been examined, he would have told about the incident. 22. It is the case of prosecution that while running from the place of occurrence, PW2 Monu disclosed the incident to a motorcyclist, who informed the police. Thereafter, the police took PW2 Monu to a hospital. Who were those police personnel? Had any report been written in the general diary entry of the concerned police station, from where the police personnel reached at the spot and took PW2 Monu to the hospital? If it is so, what was the information recorded in the police general diary. Can it be termed as an FIR? If it is so, the FIR proved in this case may, not be termed as FIR and it may at most be a statement given during investigation. But, as stated, police personnel who took PW2 Monu to the hospital have not been examined. They would have revealed as to what PW2 Monu told them soon after they reached at the place of occurrence. 23. It was a midnight at about 11:00 in the month of July. How did PW2 Monu identify the assailants? But, as stated, police personnel who took PW2 Monu to the hospital have not been examined. They would have revealed as to what PW2 Monu told them soon after they reached at the place of occurrence. 23. It was a midnight at about 11:00 in the month of July. How did PW2 Monu identify the assailants? Site plan is Ex. A10. No source of light has been shown in it. PW2 Monu has not specifically stated as to how did he identify the assailants? In his cross examination, at page 3, PW2 Monu has stated that at the time of incident he had conversation for about 2-3 minutes with the assailants. The assailants were not masked. The indicators of the truck were on. 24. Before further proceeding with the scrutiny of PW2 Monu, it would be apt to discuss as to what does “prove” mean. Section 3 of the Indian Evidence Act, 1872 (“the Evidence Act”) defines “proved” “disproved” and “not proved” as hereunder:- “Proved”- A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. “Disproved”.- A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist. “Not proved”.- A fact is said not to be proved when it is neither proved nor disproved.” 25. How the statement of a witness may be considered to be true and under what circumstances it may not be reliable? What would be the guiding factors? The Evidence Act permits raising presumption under certain circumstances. Section 114 of the Evidence Act also guides the Court in this respect. It is as hereunder:- “114. Court may presume existence of certain facts. –– The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.” 26. In the case of K. Ponnuswamy Vs. Court may presume existence of certain facts. –– The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.” 26. In the case of K. Ponnuswamy Vs. State of T.N., (2001) 6 SCC 674 , the Hon’ble Supreme Court discussed these concepts and observed that “Thus the fact is said to be proved when after considering the matter before it, the court believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. In coming to its belief the court may presume existence of any fact which it thinks likely to have happened having regard to the natural course of event, human conduct and public and private business, in relation to the facts of each case.” 27. In the case of Kuna @ Sanjay Behera, Vs. State of Odisha, (2018) 1 SCC 296 , the Hon’ble Supreme Court also discussed the concept of “proved”, “disproved” and “not proved” and observed as hereunder:- “23. The quintessence of the enunciation is that the expression “proved”, “disproved” and “not proved”, lays down the standard of proof, namely, about the existence or non-existence of the circumstances from the point of view of a prudent man, so much so that while adopting the said requirement, as an appropriate concrete standard to measure “proof”, full effect has to be given to the circumstances or conditions of probability or improbability. It has been expounded that it is this degree of certainty, existence of which should be arrived at from the attendant circumstances, before a fact can be said to be proved.” 28. The statement of PW2 Monu needs scrutiny. The whole of the scene is to be kept in view. It is midnight at about 11:00 in the month of July. There is no source of light. A truck is parked on the road with its indicators on. The Conductor and Driver of the truck were relieving themselves, when they were approached by two miscreants holding Danda and country made pistol. They demand money. The Conductor without any objection gives money, but PW2 Monu objects to it. He was fired at. There is no source of light. A truck is parked on the road with its indicators on. The Conductor and Driver of the truck were relieving themselves, when they were approached by two miscreants holding Danda and country made pistol. They demand money. The Conductor without any objection gives money, but PW2 Monu objects to it. He was fired at. In such circumstances, it is highly improbable that PW2 Monu could identify the assailants with the help of the indicators of the truck. Therefore, the statement of PW2 Monu to the extent that he identified the appellant at the time of incident is not reliable. It does not transpire any confidence. 29. PW2 Monu has stated that the assailant had once fired at him and started reloading the country made pistol. He feared for his life. Then he noticed that the assailants went into the cabin of the truck and took money and other articles. Does it mean that after having been hit with a bullet, PW2 Monu was watching the activities of the assailants? He has also stated that he was running. If he was running, how could he see as to who entered into his cabin and what they took from there? 30. PW1 Bhoora says that he was disclosed about the incident by his brother PW2 Monu and thereafter, he lodged the FIR. PW2 Monu says that he does not remember as to whether he disclosed the incident to his brother or not, because he was asleep. PW3 Dr. R.S. Prasad has proved the discharge summary of PW2 Monu. According to him, the injured was admitted in a critical condition. How FIR was lodged, If PW2 Monu did not disclose the incident to his brother PW1 Bhoora? In his cross examination, in first paragraph in the middle lines, PW1 Bhoora has stated that he signed the FIR, it was recorded by the his brother in law. The police dictated the FIR to his brother in law. Who were those police personnel? Who dictated the FIR to the brother in law of PW1 Bhoora? 31. According to the prosecution, on 29.08.2017, the appellant was arrested with the country made pistol, driving license of PW2 Monu and other documents. It is highly improbable story. If a man commits loot on 08.07.2017, why should he carry driving license and other articles, with him even after 45 days of the incident?. 31. According to the prosecution, on 29.08.2017, the appellant was arrested with the country made pistol, driving license of PW2 Monu and other documents. It is highly improbable story. If a man commits loot on 08.07.2017, why should he carry driving license and other articles, with him even after 45 days of the incident?. 32. It is the case that a country made pistol was recovered from the appellant. A bullet was also retrieved from the body of the PW2 Monu. The prosecution could have established by forensic report that the bullet was fired from the country made pistol recovered from the appellant, but there is no forensic report. 33. In view of the foregoing discussion, this Court is of the view that, in fact, the prosecution has not able to prove its case beyond reasonable doubt. The appellant ought to have been acquitted of the charge under Sections 307, 394 IPC and 25 Arms Act. The court below committed an error in convicting and sentencing the appellant under Sections 307, 394 IPC and 25 Arms Act. Accordingly, the appeals deserves to be allowed. 34. Both the appeals are allowed. 35. Judgment and order dated 30.11.2021 and 02.12.2021 passed in Sessions Trial No. 13 of 2018, State Vs. Sachin, by the court of 2nd Additional Sessions Judge, District Haridwar is set aside. 36. Judgment and order dated 30.11.2021 and 02.12.2021 passed in Sessions Trial No. 14 of 2018, State Vs. Sachin, by the court of 2nd Additional Sessions Judge, District Haridwar is also set aside. 37. The appellant is acquitted of the charge under Sections 307, 394 IPC and 25 of the Arms Act. 38. The appellant is in jail. He be released forthwith, if not wanted in any other case.