Research › Search › Judgment

Uttarakhand High Court · body

2023 DIGILAW 385 (UTT)

State of Uttarakhand v. Munesh

2023-07-04

MANOJ KUMAR TIWARI, PANKAJ PUROHIT

body2023
JUDGMENT : MANOJ KUMAR TIWARI, J. 1. State has filed this appeal challenging the judgment and order dated 25.3.2013, passed by 3rd Additional Sessions Judge, Udham Singh Nagar in Sessions Trial No. 203 of 2008, whereby respondent no. 1 (Munesh) has been acquitted of the charges punishable under Sections 302, 201, 343 IPC, respondent no. 2 (Raj Kumari) has been acquitted of the offences under Sections 376 read with Section 120B, 302 read with Section 120B and 343 read with Section 120B IPC and respondent no. 3 (Ashok) has been acquitted of the offences under Sections 302, 201, 343, 376, 404 IPC. 2. Prosecution story, in nutshell, is that complainant’s daughter Km. Neema @ Neha, aged about 20 years, used to work in a nursing home at Kashipur. She left for her job at about 9.10 AM on 13.3.2008, however, she did not return home. Complainant looked for her, but she could not be traced. On 15.3.2008, 16.3.2008 and 19.3.2008, complainant received ransom call, however, no one met when the complainant went at the place where he was called to deliver the ransom money of rupees five lakhs. The first phone call was allegedly made to complainant from the mobile number of the missing girl itself. With these facts, complainant lodged missing person’s report under Section 364-A IPC at 5.40 PM on 28.3.2008 in PS Kashipur. 3. In the present case, there are no eyewitnesses to the alleged incident and this is a case of circumstantial evidence. It has been consistently laid down by the Hon’ble Supreme Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. In Padala Veera Reddy vs. State of A.P. and Others, AIR 1990 SC 79 , it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: “(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established. (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused. (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused. (3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.” 4. We examined the evidence on record in the light of aforesaid. In the present case, the relevant circumstances are as follows: (I) Victim went missing on 13.3.2008. (II) She was last seen while leaving the house at around 9.10 AM on 13.3.2008. (III) Ransom calls came on 15.3.2008, 16.3.2008 and 19.3.2008. (IV) Missing person’s report was lodged on 28.3.2008. (V) After the report was lodged, PW1 Darshan came to complainant and disclosed to him that on 16.3.2008, Ashok and Munesh went in his rickshaw to throw something in a sac (bora) in the drain (nala) near a culvert. (VI) On 30.3.2008, the Investigating Officer, who deposed as PW8, allegedly received information from an informer that Mahendra Singh (PW2) can give vital information relating to this case. Mahendra Singh told the Investigating Officer that on 29.3.2008, he had overheard the accused persons talking to each other at Kashipur Railway Station that victim’s father has doubt on them and they are in problem due to their acts. (VII) On 31.3.2008, accused Munesh and Raj Kumari were arrested. (VIII) On 31.3.2008, skull and clothes of the victim were allegedly recovered on the pointing out of accused Munesh. (IX) On 3.4.2008, jewelleries of victim were allegedly recovered from the possession of accused Ashok. (X) Accused persons allegedly confessed to their crime while in police custody. (XI) Forensic analysis proved that it was a human skull. (XII) Accused allegedly gave the mobile phone of the victim to Harishankar Sharma (PW3), who is brother of accused Ashok. 5. As is obvious from the circumstances mentioned above that after her departure from the house on 13.3.2008, victim was never seen in the company of anyone, much less the accused persons. (XII) Accused allegedly gave the mobile phone of the victim to Harishankar Sharma (PW3), who is brother of accused Ashok. 5. As is obvious from the circumstances mentioned above that after her departure from the house on 13.3.2008, victim was never seen in the company of anyone, much less the accused persons. It is not even the case of prosecution that the victim was last seen in the company of any of the accused persons. Thus, the first significant link in the chain of circumstances is missing in the present case. 6. The next question at issue in the present case is the identity of the skull. Firstly, there is no independent witness of the alleged recovery. Secondly, none of the police witnesses mentioned in the recovery memo has been examined. Even their statements under Section 161 CrPC could not be recorded. Thirdly, no DNA analysis was carried out to prove that it was the skull of victim. Even the superimposition test was not conducted to establish that the skull recovered was that of victim. Forensic examination only established that it was a human skull. Further, we gather from the evidence of PW5 Omprakash that the skull was recovered from the graveyard after digging. PW6 Dr. Omprakash, who conducted the post mortem examination has stated that he estimated the age of the deceased to be between 17 to 40 years, however, no definite opinion about the time of death and cause of death can be given. Obviously, in these circumstances, the time and cause of death was not possible to be noted. 7. Thus, from the evidence on record, it cannot be said the skull, post mortem of which was done by PW6, was that of victim. In short, prosecution has not even established the death of victim Neema @ Neha, either homicidal or otherwise. 8. Moreover, the girl reportedly went missing on 13.3.2008 and complainant received first ransom call on 15.3.2008 and then again on 16.3.2008 and on 19.3.2008. Complainant, who has deposed as PW4, stated in his testimony that the first ransom call was made from the mobile phone of the missing girl itself and he also recognized the voice of accused Munesh. Despite all this, the complainant, who is father of deceased, kept quiet and did not tell anything to anyone until he lodged the report on 28.3.2008 and that too against unknown person. Despite all this, the complainant, who is father of deceased, kept quiet and did not tell anything to anyone until he lodged the report on 28.3.2008 and that too against unknown person. In the report, complainant has not even mentioned the particulars of the missing girl regarding her complexion, built, clothes, jewelleries, etc. There is no mention anywhere whether the complainant supplied photograph of his missing daughter to the police. There is absolutely no explanation given by the prosecution for the inordinate delay in lodging the report. All this raises serious doubt on the prosecution story. 9. Further, mobile of the victim could not be recorded. Police failed to procure the call details history of victim’s mobile to track down the real culprits. This also dents the prosecution story. 10. As regards the recovery of jewelleries of victim from the possession of accused Ashok on 3.4.2008, the same does not inspire confidence. Victim reportedly went missing on 13.3.2008, while the recovery was allegedly made on 3.4.2008 i.e. after 17 days. As has been pointed out hereinabove, particulars of victim including details of jewellaries, which she was wearing at the time of leaving her house, are not mentioned in the missing person’s report and it is also very strange that the accused will keep the jewellaries with himself for 17 days. Admittedly, jewellaries were not examined to ascertain whether the same are of gold or not. Further, the alleged recovery was made from open public place, yet there is no independent public witness. 11. So far as confession of the accused persons is concerned, in view of the provision contained in Section 27 of the Indian Evidence Act, it is of no significance in this case in the absence of any corroborative evidence as the prosecution has failed to collect credible evidence to prove its case. Moreover, there is neither any confession memo on record nor the confession of the accused was got recorded before the Magistrate. 12. In the present case, prosecution examined as many as ten witnesses. All the key witnesses, namely, PW1 Darshan, PW2 Mahendra Singh and PW3 Harishankar Sharma did not support the prosecution case and they were declared hostile. PW5 Omprakash, who is witness of inquest, PW7 Constable Kishan Dabral, PW9 Inspector B.B.D. Juyal and PW10 Constable Naveen Chandra Joshi are formal witnesses. PW9 SI R.K. Saklani is the Investigation Officer. All the key witnesses, namely, PW1 Darshan, PW2 Mahendra Singh and PW3 Harishankar Sharma did not support the prosecution case and they were declared hostile. PW5 Omprakash, who is witness of inquest, PW7 Constable Kishan Dabral, PW9 Inspector B.B.D. Juyal and PW10 Constable Naveen Chandra Joshi are formal witnesses. PW9 SI R.K. Saklani is the Investigation Officer. We already discussed the testimony of PW6 Dr. Omprakash, who conducted the autopsy. 13. The above analysis of the evidence shows that prosecution has miserably failed to prove any of the circumstances, which are also not interlinked and there is long gap between them. Thus, we find that the evidence placed by the prosecution in the present case does not pass the standard required in a case of circumstantial evidence. 14. Consequently, we see no reason to disagree with the view taken by the Trial Court. The impugned judgment and order does not suffer with any illegality or infirmity and the same is affirmed. The government appeal fails and is dismissed.