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2023 DIGILAW 350 (UTT)

Pintoo S/o Rajpal v. State of Uttarakhand

2023-06-07

MANOJ KUMAR TIWARI, PANKAJ PUROHIT

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JUDGMENT : Pankaj Purohit, J. This appeal preferred by the appellant from jail is filed assailing the judgment and order dated 8/9.02.2017 passed by learned Additional Sessions Judge, Vikas Nagar, Dehradun in Sessions Trial No.41 of 2015, State of Uttarakhand vs. Pintoo, whereby the Trial Court has convicted the appellant under Section 302 IPC and sentenced him to undergo imprisonment for life along with fine of Rs. 10,000/-, and in default of payment of fine amount, to undergo six months’ additional imprisonment. 2. Facts, in nutshell, are that PW1 Gurmeet Singh lodged an FIR with PS Vikas Nagar, Dehradun on 10.11.2014, at 10:15 AM with the averments that on 10.11.2014 at 6:30 AM, he had gone to get milk from a shop, meanwhile, the present appellant entered the informant house and injured his wife Shaloo on her head. The informant in the injured condition took his wife to Kalindi Hospital, where the Doctor declared her dead. On the basis of this FIR, a case was registered against the accused-appellant under Section 304 IPC. 3. The Investigating Officer conducted the investigation of the case and after doing necessary formalities and arresting the accused, besides recovery of weapon used in the crime, submitted a charge-sheet against the accused (appellant herein) in the court. The Trial Court, finding sufficient grounds, framed charges against the accused under Section 304 IPC on 16.05.2015, and in alternative, under Section 302 IPC. The accused-appellant denied the charges and claimed to be tried. 4. The prosecution in order to prove its case, examined PW1 Gurmeet Singh, PW 2 Constable Chandra Ballabh, PW3 Dr. Rajneesh Kumar Singh, PW4 Fool Singh, PW5 Rann Singh, PW6 Mukesh, PW7 Brijbala, PW8 Dr. K.B.Joshi and PW9 Inspector Digpal Singh Kohli. In documentary evidence, the documents Exts.Ka-1 to Ext.Ka-11 as well as the report of Forensic Science Laboratory were also filed. 5. After completion of the prosecution evidence, the statement of the accused under Section 313 Cr.P.C. was recorded, in which, the accused-appellant stated that he was innocent, the prosecution story was false and claimed trial. No defence evidence was produced by the accused, although in statement u/s 313 Cr.P.C., he stated that he wanted to produce his defence. 6. 5. After completion of the prosecution evidence, the statement of the accused under Section 313 Cr.P.C. was recorded, in which, the accused-appellant stated that he was innocent, the prosecution story was false and claimed trial. No defence evidence was produced by the accused, although in statement u/s 313 Cr.P.C., he stated that he wanted to produce his defence. 6. After examination of the entire oral and documentary evidence available on record, the Trial Court found the prosecution story to be proved against the accused-appellant beyond reasonable doubt and accordingly, it convicted and sentenced the accused-appellant as mentioned hereinabove. Feeling aggrieved, the present appeal has been preferred by the accused from the jail. 7. We have heard learned Amicus Curiae appearing for the appellant as well as learned Deputy Advocate General appearing on behalf of the State and perused the entire documents available on record. 8. PW1 Gurmeet Singh, who is the informant of the case, has stated in examination-in-chief that on 10.11.2014, at 6:30 AM, he had gone to get milk. In the meantime, the accused-appellant entered into his house and injured his wife by causing injury on her head. In injured condition, he took his wife to the hospital where the doctor declared her dead. The appellant resides in his neighbourhood. He used to keep evil eye on his wife. The appellant quarrelled his wife several times. Although, he (PW1) stopped the appellant to go to his house, but he continued to do so forcibly. He dictated the report to Pradhan Rann Singh which he has proved. He has also proved his signatures on the recovery memo, i.e., blood stained bag and pieces of plain and blood stained floor, memo of recovery of bloodstained weapon (Danda) and also on the inquest report. In cross-examination, PW1 stated that when the appellant injured his wife by inflicting blow on her head, at that time, he had gone to bring the milk. PW1 also stated that even his wife did not make any complaint either to anybody regarding that the appellant used to quarrel with her or she never went to the police station. A very material fact has been disclosed by PW1 in crossexamination that police came on the spot at 8 PM. By then, the cremation was over and the entire paper work was done by the police after that. 9. A very material fact has been disclosed by PW1 in crossexamination that police came on the spot at 8 PM. By then, the cremation was over and the entire paper work was done by the police after that. 9. PW2 Constable Chandra Ballabh is the formal witness, who has proved the lodging of the FIR (Ext.Ka-2) on the basis of Chik FIR (Ext. Ka-3). 10. PW3 Dr. Rajneesh Kumar has stated in his examination-in-chief that on 10.11.2014, he was posted as an Orthopedic Specialist in Kalindi Hospital, Vikas Nagar. On that date, at about 7:00 AM injured Shalu Singh was brought by her husband in injured condition. The time, when he examined the injured, she had passed away. During the examination, he found that the injured had sustained injuries on her left head and blood was oozing out from her nose. On touching, a fracture in temporal bone was appearing. 11. PW4 Phool Singh and PW5 Rann Singh are the witnesses of inquest. They have proved the inquest report as Ext. Ka-4. 12. PW6 Mukesh is also a formal witness of the case. 13. PW7 Brijbala has stated in her examination-in-chief that on the date of incident, she was in her kitchen. Sushil had informed her that a sound of crying was coming from the house of Gurmeet. When she went there, she saw the appellant Pintoo was coming out of the kitchen, Anshika was in his lap who was crying. Pintoo gave the girl Anshika in her lap and stated that he killed Shaloo. After saying so, he ran away from there. After arrival of Gurmeet, they went in the kitchen, where they saw Shaloo lying on the floor. She was crying in pain. She stated about being beaten by the appellant. Thereafter, the injured was taken to hospital. In cross-examination, the witness became hostile as she did not support the prosecution story. She went on to say that she did not know about the date of incident and she was not there at the place of incident at the time of occurrence. When she reached there, Shaloo was dead. She also stated before the Trial Court that the police has not recorded her statement and also refused to have given any statement to the police. When she reached there, Shaloo was dead. She also stated before the Trial Court that the police has not recorded her statement and also refused to have given any statement to the police. When she was confronted from the statement u/s 161 Cr.P.C., she also stated that she saw the deceased dead, her husband PW1 reached there and she is deposing truth before the Court. 14. PW8 Dr. K.B. Joshi is the Doctor, who conducted the post-mortem on the dead body of the deceased. The following ante-mortem injuries were found over her body: (i) “Contused swelling of 12x12cm size on left side face and temporal region involving left eye as a whole with depressed fracture. (ii) Contused swelling of 10x7cm size on right side temporal region in front of right ear. Cause of death was opined as Head Injury.” 15. PW9 Digpal Singh Kohli is the Inspector, who conducted the investigation and submitted the charge-sheet against the accused-appellant on completion of the case. 16. Thereafter, statement of the appellant was recorded under Section 313 Cr.P.C., in which, he denied the prosecution story and pleaded false implication. 17. Heard Mr. Lalit Belwal, learned amicus curiae appearing for the appellant extensively and perused the record of the case with the help of learned counsel for the parties. 18. It has been argued by learned amicus curiae that there is no eyewitness of the incident; the evidence of PW1 is nothing but hearsay evidence because in his evidence, he stated that at the time when the appellant hit his wife Shaloo, he was not there. Rather he had gone to bring milk from a shop. The learned amicus curiae also argued that the recovery of weapon of offence i.e. a wooden Danda on the pointing out of appellant also does not inspire any confidence for the reason that no disclosure statement has been recorded by the I.O. before making the recovery u/s 27 of the Evidence Act. He further submitted that the only evidence, whom the prosecution boast of having seen the incident is of PW7 Smt. Brij Bala, who turned hostile during the trial. Therefore, according to the learned amicus curiae, this is a case where the prosecution failed to prove its case against the appellant beyond all reasonable doubt. He further submitted that the only evidence, whom the prosecution boast of having seen the incident is of PW7 Smt. Brij Bala, who turned hostile during the trial. Therefore, according to the learned amicus curiae, this is a case where the prosecution failed to prove its case against the appellant beyond all reasonable doubt. The motive of keeping an evil eye upon the wife of PW1 by the appellant, according to the learned amicus curiae, cannot be a cause for eliminating her particularly when the prosecution tried to make out a case that appellant had an evil eye upon her. In such a situation, it is submitted, that instead of wiping away the deceased, appellant may cause harm to PW1, husband of deceased. 19. Per contra, learned State counsel while supporting the judgment of conviction, submitted that the prosecution case has been completely proved by the evidence of PW1 and PW7 (though turned hostile) if read together. The learned State counsel drew the attention of this Court on the evidence of PW1 Gurmeet Singh in which he stated that ^^mlh chp nw/k ysdj eSa okil vk x;k] eq>s ns[kdj fiUVw Hkkx x;kA eSus jlksbZ esa tkdj ns[k esjh choh Q'kZ ij iM+h gSA^^ . He also submitted that the incident took place on 10.11.2014 at 6:30 AM and the deceased was immediately rushed to Kalindhi Hospital at 7 AM where she was declared by the doctor as brought dead. The inquest was drawn at 09:02 AM in the hospital. The first information report was lodged without any further delay in P.S. Vikas Nagar on the same day at 10:15 AM. According to the State counsel, the case of prosecution has been proved completely beyond reasonable doubt against the appellant on the basis of evidence of PW1, PW7 and antemortem injuries found on the body of deceased. 20. This Court is not in doubt at all that in the unfortunate incident, the wife of PW1 Gurmeet Singh lost her life who was barely 25 years of age at the time of incident and it appears to be a homicidal death. The evidence is the eyes of the Court on the basis of which the Court can peep into the incident and decide the case. The evidence is the eyes of the Court on the basis of which the Court can peep into the incident and decide the case. On a meticulous examination of the evidence of PW1 Gurmeet Singh as well as the evidence of PW7 Brij Bala, we are in agreement with the submissions made by learned amicus curiae that the evidence of PW1 Gurmeet Singh is nothing but a hearsay evidence on the basis of which conviction cannot be recorded. 21. So far as the bare evidence which has been brought to the notice of this Court in order to appreciate the evidence of PW1 Gurmeet Singh as res gestae admissible u/s 6 of the Evidence Act, we had given thoughtful consideration on this aspect of the matter as to whether the evidence of PW1 could be admissible u/s 6 of the Evidence Act. According to the case of prosecution, PW7 Brij Bala was the first person to reach on the spot on being informed by Susheel that a sound of crying was coming out of the house of PW1 Gurmeet Singh but she deposed before the Court ^^fiUVw us yM+dh dks esjh xksn esa nsdj dgk fd eSus 'kkyw dks ekjk gS ;g dgdj og Hkkx x;kA fQj xqjehr ds vkus ij ge fdpu esa x;s ogka geus 'kkyw dks tehu ij iM+k gqvk ns[kk^^ . From this evidence of PW7 Brij Bala, the evidence of PW1 Gurmeet Singh that after seeing him, appellant fled away, is completely belied. 22. There is yet another aspect of the matter that in the first information report, PW1 did not say this fact. The evidence of PW7 Brij Bala would have given some credence to the theory of prosecution but she turned hostile when she deposed before the trial Court that she was not there on the spot at the time of occurrence and when she reached there, deceased had already died. This witness appears to have been procured by the I.O. which is evident from this fact that the statement of PW7 Brij Pala u/s 161 Cr.P.C. was recorded by the I.O. PW9 Digpal Singh Kohli on 5.12.2014 i.e. after 25 days of incident. Whereas in paragraph no.13 of his evidence, the I.O. says that when he reached at the spot, there were 2-4 women present with others and he did not make any of them witness and did not record any statement. Whereas in paragraph no.13 of his evidence, the I.O. says that when he reached at the spot, there were 2-4 women present with others and he did not make any of them witness and did not record any statement. This fact further gets fortified when PW7 stated that her statement was not recorded. 23. So far as the recovery of bloodstained weapon of offence at the pointing out of appellant is concerned, the evidence of PW9 I.O. Digpal Singh Kohli is silent about recording of Taskara i.e. disclosure statement of appellant-accused. 24. Though in the record, the FSL report is there which reflects that there was human blood of Group ‘A’ found on the material Ex.1 to 8 but it will not come to the rescue of the prosecution for the reason that the same was not matched by the prosecution with blood sample of victim. 25. The motive which has been assigned by the prosecution against the appellant that he was keeping an evil eye upon the deceased, has not been proved by any cogent evidence. There was neither any complaint reported by PW1 Gurmeet Singh, husband of deceased nor by the deceased Shaloo with any authority. Even the prosecution witnesses of fact say nothing about this. 26. On the basis of upshot of the aforesaid discussion, we are of the view that the prosecution completely failed to prove its case against the appellant beyond all reasonable doubt. 27. The present jail appeal is, accordingly, allowed. The judgment and order dated 8/9.2.2017 passed by the Trial Court convicting the accused-appellant u/s 302 IPC and sentencing him for life along with a fine of Rs.10,000/- with default stipulation of six months’ simple imprisonment, is hereby set aside. The appellant is acquitted of the charge u/s 302 IPC giving him benefit of doubt. Appellant is in jail. He shall be released forthwith if not required in any other case. 28. Let a copy of this judgment along with LCR be transmitted to the Court concerned for onwards compliance.