Uttarakhand High Court
Pravesh vs State Of Uttarakhand on 14 September, 2017
Bench: Rajiv Sharma, Sharad Kumar Sharma
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Government Appeal No. 24 of 2011
State ....Appellant
Versus
Pravesh & others ....Respondents
Mr. V.K. Jemini, Dy.A.G. for the State.
Mr. Rajendra Singh, Advocate for the respondents.
With
Criminal Appeal No. 275 of 2010
Pravesh ....Appellant
Versus
State ....Respondent
Mr. Navneet Kaushik, Advocate for the appellant. Mr. V.K. Jemini, Dy.A.G. for the State.
Criminal Appeal No. 276 of 2010
Pravesh ....Appellant
Versus
State ....Respondent
Mr. Navneet Kaushik, Advocate for the appellant. Mr. V.K. Jemini, Dy.A.G. for the State.
Government Appeal No. 25 of 2011
State ....Appellant
Versus
Sudhir ....Respondent
Mr. V.K. Jemini, Dy.A.G. for the State.
Mr. Navneet Kaushik, Advocate for the respondent.
Judgment Reserved- 03.08.2017 Date of Judgment - 14.09.2017 Coram: Hon'ble Rajiv Sharma, J Hon'ble Sharad Kumar Sharma, J Per: Hon'ble Rajiv Sharma, J Since common questions of law and facts are involved in the above titled appeals, hence the same are being taken up together and adjudicated by this common judgment.
2. The present appeals have been preferred against the common judgment and order dated 20.11.2010, 2 rendered by learned Additional Sessions Judge/Ist F.T.C. Roorkee, Haridwar in Sessions Trial No.461/2000, Sessions Trial No.462/2000 and Sessions Trial No.464/2000.
3. In Sessions Trial No.461/2000, the respondent were charged with and tried for the offences under Section 364, 302 and 201 IPC were acquitted. However, in Sessions Trial No.462/2000, the appellants namely Pravesh was charged with and tried for the offences under Section 489A, 489B, 498C, 489D, 472, 473, 292 IPC. He was convicted and sentenced to undergo seven years rigorous imprisonment under Section 489A and to pay a fine of Rs.5,000/- and in default of payment of fine to undergo six months additional imprisonment. He was further convicted and sentenced to undergo five years rigorous imprisonment under Section 489C and to pay a fine of Rs.2,000/- and in default of payment of fine to undergo three months additional imprisonment. He was convicted and sentenced to undergo seven years rigorous imprisonment under Section 489D and to pay a fine of Rs.5,000/- and in default of payment of fine to undergo six months additional imprisonment. He was also convicted and sentenced to undergo five years rigorous imprisonment under Section 472 of IPC and to pay a fine of Rs.3,000/- and in default of payment of fine to undergo three months additional imprisonment. Appellant-Pravesh was acquitted for the offence under Section 489B and 292 IPC. Sudhir was also acquitted.
4. In Sessions Trial No.464 of 2000, appellant- Pravesh was convicted and sentenced to undergo three years rigorous imprisonment under Section 25 of the Arms Act and to pay a fine of Rs.3,000/- and in default of payment of fine to undergo three months additional imprisonment.
35. Challenging the common judgment dated 20.11.2010, Criminal Appeal Nos.275/2010 and 276/2010 have been preferred by the appellant Pravesh assailing his conviction recorded by the Trial Court under the aforesaid Sections, whereas the State Government has preferred the Government Appeal Nos.24/2011 and 25/2011 challenging the acquittal of the respondents in S.T. No.461/2000 and S.T. No.462/2000 respectively.
6. The case of the prosecution, in a nutshell, is that one Sudhinand Nath Sinha lodged a report on 21.04.2000 to the effect that his son namely Mohit, who was residing with him was missing since 18.04.2000. He was the student of Electrical Engineering (3rd year). He used to visit his friends in the hostel. He was trying for software business. He used to go Dehradun and Delhi. He inquired from his friends. One of his friends Pankaj told him that on 18.04.2000, his son Mohit along with Amit between 11:30 to 12:30 was seen on scooter. Scooter was driven by Ankit Sikka. Mohit has also told that Pankaj came to his house. Pankaj's house was nearby. When Pankaj inquired after ten minutes, the phone was not picked up. The matter was investigated and the challan was put up after completing all the codal formalities. The prosecution has examined as many as eighteen witnesses in its support. The statements of the accused were also recorded under Section 313 of Cr.P.C. They have denied the case of the prosecution. Accused have also produced one witness DW1 Narendra Singh.
7. The respondents in Sessions Trial No.461 of 2000 were acquitted for the offences under Section 364, 302 and 201 IPC. However, Pravesh was convicted, as noticed hereinabove in Sessions Trial No.462 of 2000 and Sessions Trial No.464 of 2000. The accused Vijay Pal Singh absconded. Hence, these appeals.
48. Learned counsel appearing on behalf of the State has vehemently argued that the prosecution has proved its case against the respondents beyond reasonable doubt in Session Trial No.461 of 2000. Mr. Navneet Kaushik, Advocate for the accused has supported the judgment and order dated 20.11.2010 in Session Trial No.461 of 2000. Mr. Navneet Kaushik, Advocate for the accused has vehemently argued that the prosecution has failed to prove its case against the respondents in Session Trial No.462 of 2000 and Session Trial No.464 of 2000.
9. We have heard learned counsel for both the parties and perused the judgment and record carefully.
10. Since the complainant has died, the report was proved by PW1 Rajpal Singh.
11. PW2 Ashutosh @ Sonu in his examination-in- chief has deposed that he knew Mohit and Pankaj. Mohit was his class-fellow. He has never stayed in Rajendra Bhawan. He did not know the accused. He did not know when the incident has happened. He was declared hostile and cross-examined by learned Additional District Government Counsel. In his cross-examination, he has deposed that he was not interrogated by the SHO. He denied his statement recorded under Section 161 of Cr.P.C.
12. PW3 Shravan Kumar has deposed that he did not know Pravesh, Sudhir, Anuj Saini. Neither Pravesh has stayed with him nor he has ever gone to his room. He was also declared hostile and cross-examined by learned Additional District Government Counsel. He has denied that any person has come to Pravesh house on Kinetic Honda. He did not know the room of Pravesh. No person with Sudhir and Anuj has stayed in the Pravesh house. He has never heard any noise of beating from the house of Pravesh. He has not seen Pravesh, Sudhir, Anuj and Vijay 5 Pratap Singh coming out of the room. He was not interrogated by the SHO. He has denied the suggestion that he has told SHO that Pravesh and Vijay Pratap Singh has brought big tin box to the room and on the next day, they have come in a white Ambassador. They have brought down the tin box and left in a taxi.
13. PW4 Ankit Sikka has deposed that Mohit was his senior. He did not know the accused Pravesh, Sudhir Kumar, Anuj, Om Prakash and Sushil. He did not know Vijay Pratap Singh. He has never taken tuition from Vijay Pratap Singh. He did not know how many days before the incident has taken place. He was also declared hostile and cross-examined by learned Additional District Government Counsel. He has categorically deposed that he was not interrogated by SHO. He did not know the Mobile No.9837173148. He has denied his statement recorded under Section 161 of Cr.P.C.
14. PW5 Mukhtiyar Ahamad has deposed that he has rented out one room to Pravesh. He was declared hostile and cross-examined by learned public prosecutor. He has not told the SHO that with Pravesh, another student was staying and two boys were residing in other room. He failed to recognize the accused. In his cross- examination by the learned Defence Counsel, he has admitted that he has never issued any rent receipt. He was not the income tax payee. He has not deposited the municipal tax. He was not maintaining any accounts.
15. PW6 Sarvesh Kumar has deposed that he was not the permanent taxi driver. He did not know the accused. They have never visited him. They have never hired his taxi. He has never seen the room of Pravesh in Rajendra Nagar. He was also declared hostile and cross- examined by learned Additional District Government 6 Counsel. He has denied that he was interrogated by the SHO. He has never told that his taxi was hired on 19.04.2000 and taken to Rajendra Nagar. He has never taken out the trunk from his car. He has never told that the trunk was required in marriage. He has also not told the SHO that he has removed the tin box with the help of Vijay Pratap Singh and Sudhir and was taken in fodder room. He was also cross-examined by learned Additional District Government Counsel appearing for Pravesh. He has admitted specifically that he has never taken his car to Rajendra Nagar or to Mundlana for marriage.
16. PW7 Deshram has deposed that a constable has come to his house. His signatures were obtained on papers. He did not know the contents of the paper. He has deposed that when his signatures were obtained, the paper was blank. He was also declared hostile and cross-examined by learned public prosecutor. He was not examined by the SHO. He has denied his statement recorded under Section 161 of Cr.P.C. The panchayatnama was not prepared in his presence nor the body was sent for post mortem after sealing it. No one was present when his signature was obtained by the SHO.
17. Similarly, PW8 Chandrapal has deposed that the police constable has come to his house. His thumb impression has obtained on the paper. He did not know the contents of the documents. He was also declared hostile and cross-examined by learned Additional District Government Counsel. He was never examined by the SHO. He has not given any statement under Section 161 of Cr.P.C. No panchayatnama was prepared in his presence. The body was not sent for postmortem examination in his presence. When his thumb impression was obtained, nobody was present on the spot.
718. PW9 Dharma has deposed that he did not know the accused. 2-3 years back, he was coming back after giving food to his son Suresh. He met at chowk a bullock cart. He did not know who was handling the cart. He has not recognized any person at that time. He has not heard the rumors of murder. He was also declared hostile and cross-examined by learned Additional District Government Counsel. He has denied his statement recorded under Section 161 of Cr.P.C. by the SHO.
19. PW10 Amarpal was posted at P.S. Haridwar. He has deposed that Mohit was student of Roorkee University. He was assigned investigation of the matter. They reached the house of Vijay Pratap Singh. They saw that one person was operating computer. He was showing Rs.100/- note to his colleagues, who were assisting him and sought their views whether the fake currency looked original. They were of the confirmed view that the accused were counterfeiting the currency. They knocked the door. The person who was operating computer and his friends were arrested. He told his name as Vijay Pratap Singh. The second person told his name Suresh Kumar and the third one escaped from the spot. Search of Vijay Pratap Singh and Pravesh was carried out. The counterfeit currency was recovered from the pocket of Vijay Pratap Singh. One revolver made in U.S.A. bearing no.4080 along with 6 cartridges of 32 bore and 10 live cartridges of 32 bore were recovered from the possession of accused Pravesh. The accused could not produce the license. He made inquiries from where he got the revolver bearing no.4083 made in U.S.A. A sum of Rs.150/- was also recovered from Pravesh. 25 counterfeit notes were recovered from his pocket. 143 notes of Rs.100/- denomination were also recovered and 157 incomplete notes of Rs.100/- and Rs.500/- were also recovered in a briefcase. Stamps were also recovered. CPU, 8 mouse, laser scanner, monitor, keyboard and one stabilizer were also recovered. Mark-sheets were also recovered from briefcase. Forged certificates were also recovered. Original $4 with denomination of 100, 20 and 10 were also recovered. He has disclosed the name of his friend, who absconded as Sudhir. The accused were taken into custody. The recovered articles were sealed. He has further deposed that the accused Pravesh and Vijay Pratap Singh had made a confession before him in the presence of Mr. V.K. Sharma as well as Mr. H.C. Saxena (PW13), the manner, in which they have murdered Mohit. Thereafter, they have visited the spot, shown by the accused and dead body was recovered without head. The head was also recovered. In his cross-examination, he has deposed that the accused were suddenly arrested. He has also admitted that people were residing nearby. They have tried to associate the independent witness but nobody has agreed to become witness. He has also admitted that no separate memo of recovery from Pravesh was prepared. He has also admitted that they have not put any marks on the original and counterfeit currency recovered from Pravesh. The numbers on currency notes were also not written in the memo. They have requested the father of the deceased to accompany them to recover the dead body but he has shown his helplessness.
20. PW11 Dr. A.K. Jain has conducted the postmortem examination on the dead body. The death has occurred 2 to 4 weeks before the postmortem examination. He could not assign any specific reason of death.
21. PW12 Dr. V.K. Sharma has prepared the spot map from where the dead body was recovered.
22. PW13 Harish Chandra Saxena has deposed that he was posted at P.S. Roorkee on 22.04.2000. He has also 9 investigated the matter. The confessional statement of Vijay Pratap Singh and Pravesh was prepared and signed by him.
23. PW15 Sushil has deposed that the police taken them near the river. They dug up the land. One half burnt head was recovered. It was smelling. It was taken out from the pit. His signature was obtained by the police. He did not know the contents of the document. The thumb impression of Krishan Pal was obtained in the paper.
24. PW16 S.I. Nautan Dara has corroborated the statement of PW10 S.I. Amarpal Singh, the manner, in which the counterfeit currency notes, the equipments etc. were recovered from the accused Vijay Pratap Singh and Pravesh including revolver. In his cross-examination, he has admitted that the counterfeit currency, recovered from the accused was not marked. The numbers of currency notes were also not recorded.
25. PW17 Dhoom Singh was also produced by the prosecution to prove the recovery of counterfeit currency as well as equipments used for the purpose. He has also admitted that the spot where the recoveries were made was populated. They have tried to associate independent witness but the witnesses have not disclosed their names. He has also admitted that the SHO could take the action against the persons, who have not helped the prosecution. He has also not disclosed the numbers of currency notes to the Investigating Officer. The numbers of currency notes were also not mentioned on the packet. The S.I. has not put any mark, though they were carrying different series and numbers.
26. The case of the prosecution is entirely based on circumstantial evidence, as far as Session Trial No.461 of 2000 is concerned. It is settled law that the case based on circumstantial evidence, the chain should be complete. All 10 the circumstances must point exclusively towards the guilt of the accused. The case of the prosecution has not been supported by PW2 Ashutosh @ Sonu. He has categorically deposed that he never stayed in Rajendra Nagar. He was declared hostile. Similarly, PW3 Shravan Kumar has deposed that he did not know Pravesh, Sudhir, Anuj Saini. Pravesh has never stayed with him nor he has ever visited his house. He has not seen any person coming to Pravesh house on Kinetic Honda. He has not seen Pravesh, Sudhir and Vijay Pratap Singh coming out of the room. He has not disclosed to SHO that Vijay Pratap Singh and Pravesh have brought big tin box on rickshaw and has taken it in a car next day. PW4 Ankit Sikka has deposed that he has never taken tuition from Vijay Pratap Singh, though he has admitted that he knew Mohit, who was his senior. He did not know the accused Pravesh, Sudhir Kumar, Anuj, Om Prakash and Sunil. He was declared hostile. PW5 Mukhtar Ahamad, though has admitted that he has given a room to Pravesh but nobody was residing with him and two other boys were staying in other room. He has admitted in his cross-examination, that he has not prepared any rent receipt. He was not the income tax payee. He has not paying Municipality Bill. He has not maintained any accounts. PW6 Sarvesh Kumar is another material witness, who has allegedly carried the dead body in his car, was also declared hostile. He has denied in his examination-in-chief that the accused had come to him to hire his taxi. He was also declared hostile. He has denied his statement recorded under Section 161 of Cr.P.C. PW7 Deshram and PW8 Chandrapal have not supported the case of the prosecution. According to them, their signatures and thumb impression were obtained on blank papers. They were not aware about the contents of the documents. PW9 Dharma has only deposed that he has seen the bullock cart being handled by a person. He has not seen anything else.
11PW10 S.I. Amarpal Singh has deposed that the accused have made confession before him, the manner, in which Mohit was killed. The statement made before the police custody, is not admissible under Section 26 of the Indian Evidence Act. PW11 Dr. A.K. Jain has conducted the postmortem examination on the dead body but he has not given any opinion, the manner, in which the death was caused, though according to him, the death has occurred 2-4 weeks before the postmortem examination. The prosecution has failed to complete the chain in the present case. The statement made before the police is not admissible. The material witnesses have turned hostile.
27. Accordingly, the prosecution has failed to prove its case against the respondents/accused for the offences under Sections 364, 302 and 201 IPC. There is no occasion for us to interfere with the well-reasoned judgment rendered by learned Trial Court in Session Trial No.461 of 2000. Thus, the G.A. No.24 of 2011 is liable to be dismissed.
28. Now, the Court would advert to the manner, in which, the accused Vijay Pratap Singh and Pravesh were nabbed. The case of the prosecution is that they have arrested the accused Pravesh and Vijay Pratap Singh from the house of one doctor. The police has not associated any independent witness at the time of arrest of the accused, though there was a locality nearby.
29. The prosecution witnesses PW10 S.I. Amarpal Singh and PW16 S.I. Nautan Dara have admitted that the currencies recovered from the accused were not marked nor the numbers on currency note were taken. The currency notes were never sent to FSL to ascertain whether the same were counterfeit. The equipment was also recovered from the accused but it was not sent for FSL examination to 12 ascertain whether it was used to prepare fake/counterfeit currency notes. Thus, the CRLA Nos.276 of 2010 preferred by the appellant Pravesh is allowed. With the result, Government Appeal No.25 of 2011 is dismissed.
30. The case of the prosecution is that a revolver was also recovered from Pravesh bearing no.4083 made in U.S.A. along with six cartridges of 32 bore. PW10 S.I. Amarpal Singh in his examination-in-chief has deposed that U.S.A. made revolver bearing no.4080 with fully loaded with 6 cartridges of 32 bore and 10 live cartridges of 32 bores were recovered.
31. The case of the prosecution is that revolver bearing no.4083 made in U.S.A. was recovered fully loaded with 6 cartridges of 32 bore and 10 live cartridges of 0.38 bore.
32. Learned Trial Court has erred in law by not taking into consideration the earlier part of the statement of PW10 S.I. Amarpal Singh, who has categorically deposed that one revolver made in U.S.A. with number 4080 was recovered along with fully loaded with six cartridges of 32 bore and ten cartridges of 32 bore. This cannot be treated as simple mistake due to loss of memory. The police has prepared joint recovery memo, though it was to be prepared separately. Thus, the prosecution has failed to prove that revolver was recovered from the accused Pravesh. Accordingly, the CRLA No.275 of 2010 is liable to be allowed.
33. Resultantly, both the appeals preferred by the Government bearing GA No.24 of 2011 and G.A. No.25 of 2011 are dismissed and Criminal Appeal Nos.275/10 and 276/10 are allowed.
34. Let a copy of this judgment along with LCR be sent back to the trial court.
(Sharad Kumar Sharma, J.) (Rajiv Sharma, J.) NISHANT