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2024 DIGILAW 156 (UTT)

State of Uttarakhand v. Naseem

2024-03-05

ALOK KUMAR VERMA, RITU BAHRI

body2024
JUDGMENT : (Alok Kumar Verma, J.) : This Government Appeal is directed against the judgment dated 28.05.2013, passed by learned IVth Additional Sessions Judge, Haridwar in Sessions Trial No. 89 of 2011, “State vs. Naseem”, whereby, the learned trial court has acquitted the respondent-accused from the offence punishable under Section 302 of the Indian Penal Code, 1860 (in short, “IPC”). 2. In brief, the prosecution’s case is that Smt. Anita, the daughter-in-law of the informant-Phool Singh (PW1), had gone to collect grass at around 4 p.m. on 08.10.2010. At around 4:30 in the evening, the informant came to know from the villagers that she was lying injured in Brajveer’s field across the road. He reached the spot. She was not conscious. There were marks of sticks on her legs, ear and waist. She died on the spot. 3. An FIR No. 433 of 2010 (Ext. Ka19) was lodged with Police Station Manglaur on 08.10.2010 at 18:20 hrs pursuant to a written information (Ext. Ka1) received from the informant. The FIR was registered against unknown person. Sub-Inspector Prem Prakash Shah (PW4) reached the spot. The Inquest report (Ext. Ka2) was prepared by him. Human hair was found in the hands of the deceased. After preparing the inquest report, other formalities were performed to send the dead body for post-mortem. The post-mortem examination of the dead body was conducted by Dr. Ajay Mohan Agrawal (PW6) on 09.10.2010. Mahendra Singh Negi (PW5), the Investigating Officer, prepared the site plan (Ext. Ka11). A sickle, a chunari, a pair of slippers, a bindi, a button, a stick, beedi, matchstick, a pant, a purse and a torn diary were recovered from the spot. “Naseem” was written on one page of the said diary. The prosecution witness Parvinder (PW3), who was present at the time of the seizure of the said articles, told that the said sickle belonged to him, whereas the said purse, pant, slippers, beedi and matchbox belonged to his servant Naseem. There was blood on the recovered sickle and chunari. 4. Respondent-accused was absconding and after the process of Section 83 of the Code of Criminal Procedure, 1973 was issued, he was arrested by the police on 27.02.2011 in the presence of Parvinder (PW3). One button of the shirt worn by the accused at the time of his arrest was found broken. The said shirt was seized by the police. 5. Respondent-accused was absconding and after the process of Section 83 of the Code of Criminal Procedure, 1973 was issued, he was arrested by the police on 27.02.2011 in the presence of Parvinder (PW3). One button of the shirt worn by the accused at the time of his arrest was found broken. The said shirt was seized by the police. 5. The accused confessed to the police that he wanted to have sex with the deceased. The deceased had opposed him. He hit her with a stick. The deceased had a sickle. So he hit her with a rod (Sariya). One rod (Sariya) was recovered by the police at the instance of the accused in the presence of Parvinder (PW3) and hair was taken from the head of the accused. There was blood on the tip of the recovered rod (Sariya). The recovered chunari (Ext. 4), sickle (Ext. 5), button (Ext.6), shirt (Ext. 16), hair found in the hand of the deceased, hair of the accused, plain and blood stained soil, taken from the spot, were sent to the Forensic Science Laboratory in sealed condition. After conclusion of the investigation, Mahendra Singh Negi, the Investigating Officer, filed charge-sheet (Ext. Ka 17). 6. The Trial Court framed charge against the respondent-accused under Section 302 IPC to which he pleaded not guilty and claimed to be tried. 7. The prosecution at the trial examined eight witnesses. 8. Statement under Section 313 of the Code of Criminal Procedure, 1973 was recorded. Respondent-accused has denied all the incriminating evidence, adduced by the prosecution. 9. The respondent-accused examined himself in his defence. 10. Heard Mr. Amit Bhatt, learned Government Advocate for the appellant and Mr. S.R.S. Gill, learned Amicus Curiae. 11. Mr. Amit Bhatt, learned Government Advocate, argued that the respondent-accused had confessed his guilt and recoveries are also proved. Therefore, the evidence, adduced by the prosecution, are trustworthy, which are enough to establish the involvement of the respondent in the commission of the crime. 12. Mr. S.R.S. Gill, learned Amicus Curiae has supported the impugned judgment. 13. The law is well settled that the order of acquittal strengthen the presumption of the innocence of the accused. Equally, it is the duty of the Court to see that the guilty do not escape from the punishment. Therefore, we have carefully assessed the evidence, adduced by the prosecution. 14. 13. The law is well settled that the order of acquittal strengthen the presumption of the innocence of the accused. Equally, it is the duty of the Court to see that the guilty do not escape from the punishment. Therefore, we have carefully assessed the evidence, adduced by the prosecution. 14. PW1 Phool Singh is the informant of this case. 15. PW2 Narendra Kumar is the witness of inquest proceedings. 16. PW3 Parvinder is the star witness of this case. The name of the respondent-accused came to light after this witness identified the allegedly recovered articles. According to the prosecution Parvinder (PW3) was present at the time of recovery of rod (Sariya). 17. The inquest report (Ext.Ka.2) was prepared by Sub-Inspector Prem Prakash Sah (PW4). 18. PW5 Mahendra Singh Negi is the Investigating Officer. 19. PW6 Dr. Ajay Mohan Agarwal conducted the post-mortem examination of the dead body of the deceased. 20. The First Information Report was scribed by H.C. Ramlal, PW7. 21. PW8 Constable Anita had taken the dead body for post-mortem. 22. The present case rests on circumstantial evidence. When a case rests on circumstantial evidence, such evidence must satisfy these tests: (i) The circumstances from which the conclusion of guilt is to be drawn, should be fully established. (ii) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, it should not be explainable on any other hypothesis except that the accused is guilty. (iii) The circumstances should be of a conclusive nature. (iv) There must be a chain of evidence to show complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probabilities, the act must have been done by the accused. 23. The principle of circumstantial evidence has been reiterated by the Hon’ble Supreme Court in a plethora of cases. In C. Chenga Reddy vs. State of A.P., (1996) 10 SCC 19 3, the Hon’ble Supreme Court observed, “In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances, must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.” The same principles were reiterated by the Hon’ble Supreme Court in Trimukh Maroti Kirkan vs. State of Maharashtra, (2006) 10 SCC 681 , Mohd. Arif alias Ashfaq vs. State (N.C.T. of Delhi), (2011) 13 SCC 621 , Sunil Clifford Daniel vs. State of Punjab, (2012) 11 SCC 205 and a number of other decisions. 24. The circumstances, which are pressed into service to fasten the guilt on the respondent-accused are, as follow:- i) The respondent-accused had confessed his guilt before Police Officer. ii) The recovery of incriminating articles indicates the involvement of the respondent-accused in the crime. 25. Section 25 of the Indian Evidence Act, 1872 is broadly worded and it excludes from evidence a confession made by the accused to a Police Officer under any circumstances. 26. It is neither natural nor reliable that four months and nineteen days after the incident, the accused wore the same shirt to create evidence against himself. 27. According to the Forensic Science Laboratory’s report, the hair recovered from the hand of the deceased and the hair of the accused did not match, nor was any blood found on the rod (Sariya). 28. Although, injuries were was found on the dead body of the deceased and the death of the deceased was homicide, the prosecution has to prove that the death of the deceased was caused by the respondent and in all human probabilities, the act must have been done by the respondent-accused only. Even grave suspicion cannot take place of proof. There is no positive evidence placed on record against the respondent-accused by the prosecution to prove its case against him. 29. On a detailed examination and scrutiny of the evidence of the prosecution, this Court upholds the view taken by the learned Trial Court. In our considered view, the prosecution has failed to establish the commission of the alleged offence by the respondent-accused beyond all reasonable doubt. He deserves benefit of doubt. We are, therefore, in complete agreement with the view taken by the learned Trial Court. We see no reason to interfere with the judgment and order impugned herein. 30. In our considered view, the prosecution has failed to establish the commission of the alleged offence by the respondent-accused beyond all reasonable doubt. He deserves benefit of doubt. We are, therefore, in complete agreement with the view taken by the learned Trial Court. We see no reason to interfere with the judgment and order impugned herein. 30. As a result, the instant appeal is liable to be dismissed. The said appeal is dismissed accordingly.