Uttarakhand High Court
Rajendra vs State Of Uttarakhand on 7 December, 2022
Author: Sanjaya Kumar Mishra
Bench: Sanjaya Kumar Mishra
1
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Criminal Appeal No. 78 of 2008
Rajendra ..................Appellant
-Versus-
State of Uttarakhand
....................Respondent
Present: Mr. Harshpal Sekhon, Amicus Curiae for the petitioner.
Mr. J.S. Virk, Deputy Advocate General for the State.
With
Criminal Jail Appeal No. 43 of 2008
Babloo Kothari @ Balbir ..................Appellant
-Versus-
State of Uttarakhand
....................Respondent
Present: Mr. Harshpal Sekhon, Amicus Curiae for the petitioner.
Mr. J.S. Virk, Deputy Advocate General for the State.
Date of Hearing: 23.11.2022
Date of Pronouncement: 07.12.2022
Shri Sanjaya Kumar Mishra, J.
Shri Alok Kumar Verma, J.
Shri Sanjaya Kumar Mishra, J.
Upon hearing the learned counsel for the parties, the Court has passed the following order:-
1. Two appellants namely Rajendra Singh, son of Shobat Singh and Babloo Kothari have taken exception to their conviction as per the judgment and order dated 25.01.2008 passed by the learned Sessions Judge, 2 Dehradun, in S.T. No. 57 of 2007 'State vs. Rajendra and one another', whereby, they were convicted under Sections 364/34/302/34 and 201 of the Indian Penal Code, 1867 (hereinafter referred to as 'Penal Code' for brevity), and various sentences were passed thereunder, imprisonment for life being the highest punishment among them, for the offence under Section 302/34, which has been awarded to them.
2. The case of prosecution, in short, is that the deceased Vipin Gupta was a driver by profession; he was plying a Taxi, Mahindra Max, between Taxi Union of Dehradun and Rudraprayag. On 02.01.2007, the taxi of deceased was found parked in a zigzag manner at the Taxi Union Stand, Dehradun. As it was creating hindrance in parking of other vehicle, one Sandeep tried to locate the deceased at the Taxi Stand, but he could not get any trace of him. He went to the house of Vikas Gupta, brother of the deceased, he was informed that he was not in his residence. His brother, therefore, became suspicious and alongwith Sandeep returned to Taxi Union Stand. One Raju Chowkidar met them and he told them that at about 8:00 to 9:00 PM on the previous night, i.e., on 01.01.2007, Babloo Kothari, Banti 3 Churiwala, Pattu Loaderwala and Rajendra forcefully took Vipin Gupta in their Alto Car bearing registration No. UA-07M-7468.
3. The brother of the deceased namely Vikas Gupta became suspicious and apprehended that his brother might have been killed, prepared a written report and lodged the same before the S.H.O., Nehru Colony Police Station in the town of Dehradun at about 9:30 AM on 02.01.2007. On this report at the police station a Criminal Case bearing No. 3/2007 under Section 364 A of the Penal Code was registered by the Constable Mohan Singh against the present appellants and two others.
4. The investigation of the case was taken up by the police officer Mr. V.D. Uniyal. In course of investigation he arrested Rajendra from near Singh Auto Mobiles. On interrogation, he gave a statement that he will take the Investigating Officer to the place the dead body is lying. The Investigating Officer along with the witness Vikas Gupta, Satdev Uniyal, as well as, accused Rajendra, who led them to the place on the way side near Laxmansidh Mandir and at the instance of the accused Rajendra, the 4 Investigating Officer recovered the dead body from a ditch on the road side. The dead body was identified by Vikas Gupta, the brother of the deceased. Thereafter, the Investigating Officer got prepared the recovery memo and the body was dispatched for post-mortem examination.
5. After obtaining the result of the post-mortem examination, the offence of Section 302 and 201 of IPC was added to the scope of the enquiry. In the meantime, Babloo Kothari surrendered before the Court and the Investigating Officer went to the prison and recorded his statement on 19.01.2007. On the information given by Babloo, the Investigating Officer applied for police remand and the accused Babloo, who led the police party and two witnesses Dipak Thapa and Shiv Darshan to the forest near Laxmansidh Mandir and from bushes took out a blood stained axe, which was seized and sent for chemical examination. The material objects so seized were sent for the serological and chemical examination to the FSL. After completion of the investigation, the Investigating Officer submitted the charge-sheet under Sections 364, 302, 201/34 of the Penal Code. 5
6. In course of their examination, the appellant Rajendra stated that he has been falsely implicated in this case whereas Babloo also denied his implication in the commission of the crime, but further stated that there was a quarrel between some persons and the deceased and he intervened in the quarrel and, thereafter, went to his own house.
7. The prosecution in order to bring home the charges leveled by, examined the nine witnesses. PW2 Raju Chowkidar has been examined on behalf of the prosecution to prove the last seen alive of the deceased in the company of these two appellants. PW1 Vikas Gupta happens to be the younger brother of the deceased, he is also the complainant in this case. He has no direct knowledge regarding the incident. PW3 R.K. Tamta is the Doctor, who has conducted the post- mortem examination on the dead body of the deceased. Rest of the witnesses are all formal witnesses being either witnesses to seizures or official witnesses having no direct knowledge about the incident. PW9 V.D. Uniyal is the Investigating Officer of this case. 6
8. At this stage, there is no dispute regarding the fact that there is no direct evidence in terms of narration made by any eye witnesses are available in this case. The prosecution bases its case entirely upon circumstantial evidence.
9. Out of four persons, who were named in the FIR, the appellants are two; one was found to be a juvenile and proceedings were initiated with respect to him under the Juvenile Justice Court and Protection of Children Act, 2015; one of the accused namely Banti Singh he was never arrested or charge-sheeted by the Investigating Officer. Basing on statement of the Chowkidar i.e. PW2 Raju, that he saw the deceased along with four accused persons, learned Additional Sessions Judge considering the recovery of the dead body at the instance of Rajendra, recovery of blood stained axe at the instance of appellant Babloo and the results of the post-mortem examination, came to the conclusion that the prosecution has proved its case beyond all reasonable doubts. The matter came before this court and the Coordinate Bench as per the judgment dated 24.08.2011 dismissed both the appeals. 7
10. Both the convicts preferred appeals to the Hon'ble Supreme Court. Babloo Kothari @ Balbir appeal was registered as CRLA No. 300 of 2013. The Hon'ble Supreme Court disposed of the same on 02.09.2022 allowing the appeal, and thereby setting aside the judgment of Division Bench and further remanded the same to reconsider, reheard and disposed of the same on merit. The appeal of remand preferred by the Babloo Kothari @ Balibir was heard by us on 23.11.2022 and we proposed to dispose of the same by oral order and the part of the judgment was dictated and typed out but it cannot be completed. In the meantime, on 28.11.2022, the Hon'ble Supreme Court allowed the appeal of Rajendra and directed the same to be reheard by remanding in CRLA No. 300 of 2013. While hearing the appeal of co-accused Babloo Kothari @ Balbir we had taken of the view that since the Hon'ble Supreme Court in the connected appeal, preferred by the said appellant appearing in CRLA No. 300 of 2013 had set aside the entire judgment of the dismissal of the appeal of both the appellants, appeal of co-accused also need to be heard.
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11. Since, none were appearing for both the appellants, we have requested Mr. Harshpal Sekhon, an experienced Lawyer, practicing in this High Court who has also dealt with number of cases on the criminal side to argue the case. Since, we had already heard the learned Amicus for both the appellants, we did not consider it to list it again for hearing after receipt of order dated 28.11.2022.
12. While, remanding the matter, the Hon'ble Supreme Court held that in an appeal involving conviction of a person for murdering another person it is the duty of the Appellate Court to reappreciate the entire evidence and then come to the conclusion. Hence, the order dated 24.08.2011 was set-aside and the matter is remitted back to the High Court fresh decision of the case, in accordance with law, considering that it was an old matter the Hon'ble Supreme Court further directed for expeditious disposal of the criminal appeal. It was also observed that in case the appellants are not represented, defence counsel be provided as mandated under Section 304 Cr.P.C."
13. Since, the most important aspect of a murder trial is the nature of death met with by the deceased, it is 9 appropriate to take note of the evidence of the PW3, Dr. R.K. Tamta, Doon hospital, who conducted the post- mortem examination of the dead body of the deceased. In course of post-mortem examination, he found following injuries:
(i) Lacerated wound right side head 1 cm.
behind right ear 16x7 cm. underlying skull bone exposed fractured.
(ii) Incised wound 10x6 cm. below chin on right side underlying jaw bone (horizontal).
(iii) Incised would 7x2 cm. skin deep right side neck 1 cm. away of injury no. 2 (horizontal).
(iv) Incised wound 7x3 cm. muscle deed below injury no. 3 (horizontal).
(v) Incised wound 8x3 cm. bone muscle deep. Food pipe cut at same level (horizontal).
(vi) Contusion 1x0.5 cm. right side neck 4 cm. below injury no. 5.
(vii) Contusion 10x1 cm. right side neck 2 cm.
away of injury no. 6.
(viii) Contusion 6x1 cm right side upper chest 5 cm. away from injury no. 7.
14. The Doctor also found semi digested food in abdomen and was of the view that the deceased died due to coma, shock and hemorrhage as a result of ante mortem injuries. He was also of the view that the deceased might have died about 8:30 PM on 01.01.2007. He has prepared the post-mortem examination i.e. exhibit ka-2. 10
15. A reference to the exhibit i.e post-mortem examination report reveals that though the injuries stated by the doctor in the court are mentioned the same, nowhere it is mentioned that the death of the deceased could have taken place at 8:30 PM on 01.01.2007. However, he has reflected in the post-mortem examination report that the death of the deceased could have been caused two days before the post-mortem examination. The post-mortem examination was done on 03.01.2007. Thus, there is no conclusive material in the shape of the opinion of the Doctor that the death of the deceased was definitely homicidal. However, taking into consideration the fact that there are number of incised injuries on vital part of the body of the deceased, it can be inferred in this case that death of the deceased was homicidal in nature.
16. Now coming to the question whether the appellants committed murder of the deceased and whether the prosecution has proved their complicity beyond reasonable doubt, it is seen that only witness who speaks about the last seen is PW2 Raju chowkidar. He has stated that he has seen four people with Vipin, they were all drunk and they were arguing and started fighting. The witness thereafter separated them. They 11 were fighting with each other and went to his car in his parking. When he returned he saw alcohol bottle in the hands of Babloo Kothari @ Balbir and they had again started to fight with him. Vipin later on started his car and later on they dragged him in their also car and left. This incident happened around 8 to 9:30 in the night of 01.01.2007. On the next date, the FIR was lodged and the appellant Rajendra allegedly gave discovery of the dead body in a open ditch by the side of the road about 100 to 150 mtr., away from Laxmasidh temple. Thus, allegedly on the statement given by Rajendra in police custody, led to the discovery of the dead body in an open ditch by the side of the road.
17. The learned Deputy Advocate General Mr. J.S. Virk would submit that since Rajendra gave discovery of the dead body of the deceased then it should be held that he knew that the deceased has been murdered by him and all of them threw the dead body in the ditch by the side of the road.
18. Any discovery, made under section 27 of the Indian Evidence Act, 1872 (hereinafter referred to as the Evidence Act for brevity) is admissible only to the extent 12 of discovery of a fact nothing more nothing less. Interpreting this provision, the Hon'ble Supreme Court in the landmark judgment of Pulukuri Kotayya vs. King- Emperor, 1946 SCC Online PC 47 has held as follows:-
"Section 27, which is not artistically worded, provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to be proved. The condition necessary to bring the section into operation is that the discovery of a fact in consequence of information received from a person accused of any offence in the custody of a Police officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. The section seems to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence; but clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. Normally the section is brought into operation when a person in police custody produces from some place of concealment some object, such as a dead body, a weapon, or ornaments, said to be connected with the crime of which the informant is accused.
19. Thus, the statement made by an accused admitting his guilt and giving discovery of a fact will not be admissible 13 in its entirety. The confessional portion of the statement is not admissible. Only the material of recovery of the dead body shall be admissible. Thus, furthermore, a golden thread runs in the Indian Criminal Justice System that if two interpretations are possible one implicating the accused and the other exonerating him then the second interpretation has to be considered. It is for the sake of consideration if it is held that the prosecution has proved that on the statement of Rajendra the dead body was discovered then it can be given two interpretations. Firstly that Rajendra committed the murder and threw the dead body in the open ditch. Secondly Rajendra knew that the dead body was lying there. So the second aspect of the case is to be accepted as to have been proved.
20. The learned Session Judge committed an error on record by accepting the entire statement, both confessional and leading to discovery of the dead body to be admissible.
21. Co-accused Babloo Kothari @ Balbir gave discovery of a blood stained axe. The axe was not examined by PW3 Dr. R.K. Tamta, nor he gave his opinion whether injuries found on the body of the deceased could have been 14 caused by said weapon. On chemical examination it was to be found with stained with blood but no grouping of the same was done. Whether the blood found on the axe was of human origin and that it contained traces of human blood of the group to which the blood of the deceased belong have not been established. So this circumstance is also week circumstance.
22. Thus, the learned Session Judge relied upon the following circumstances in convicting the appellants:-
1. The deceased was seen with the company of four persons in the night of 01.01.2007 two out of them are the two appellants.
2. On the next day around 8:30 to 9:00 am dead body was discovered with multiple bleeding injuries.
3. Rajendra in police custody gave discovery of the dead body of the deceased; later on 24.01.2007, after arresting accused Babloo Kothari @ Balbir and remanding him to custody by order of the learned Magistrate, the police took him in police remand, and he allegedly gave discovery of the weapon of offence, which was stained with blood but was not found to be human blood of the same group that of the deceased. 15
23. Firstly, the last seen of the deceased with the appellant and the discovery of the dead body is separated by about 12 to 13 hours, therefore, the principle of last seen theory in appreciation of evidence cannot be pressed into service. There is considerable gap between two events. The Hon'ble Supreme Court in the case of Ramreddy Rajeshkhanna Reddy & Anr. Vs. State of A.P. (2006) 10 SCC 172 has held that the last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case courts should look for some corroboration. Further in the case of State of Uttar Pradesh vs. Satish, (2005) 3 SCC 114, the Hon'ble Supreme Court has held as follows:-
"The last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of 16 other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases."
24. Thus, the last seen theory cannot be pressed into service in this case. For the reasons recorded above, the circumstances of discovery of dead body and finding of an axe blood stained which is not conclusively proved to be stained with human blood of the same grouping of dead person and a homicidal death of the deceased will not be completing chain of events unerringly pointing towards the guilt of both the appellant.
25. Having considered the matter at length and examining the evidences available on record, we are of the opinion that there is a reasonable doubt regarding the complicity of the appellants in commission of crime, and therefore, we give them benefit of doubt .
26. Hence, both the appeals are allowed. The judgment of conviction and order of sentence are hereby set aside. The appellants are acquitted of the offences under 17 Section 364, 302, 201/34 of the Penal Code. They be set at liberty forthwith.
27. It is borne out from the aforesaid orders of the Hon'ble Supreme Court that the Hon'ble Supreme Court has granted them bail pending present appeals. However, the learned Amicus Curiae could not inform us whether they are in custody or not. The learned Dy. Advocate General also could not say whether they have availed liberty granted to them by the Hon'ble Supreme Court. So a copy of the judgment immediately be sent to the learned Sessions Judge, Dehradun, with a direction to the learned Sessions Judge to find out whether both the appellants have been released on bail pending this appeal. If they have already availed the bail then they be set at liberty by treating the bail bonds already submitted by them as compliance of Section 437-A of the Code of Criminal Procedure, 1973. If they have not availed the bail granted to them by the Hon'ble Supreme Court then appropriate orders be passed for their release after execution of personal bond of Rs. 5,000/- each with one surety in compliance of Section 437-A of the Code. 18
28. We record our appreciation for the valuable and informed assistance provided by Mr. Harshpal Sekhon the learned Amicus Curiae.
29. Let TCRs be sent back.
(Alok Kumar Verma, J.) (Sanjaya Kumar Mishra, J.) (Grant urgent certified copy of this order, as per Rules) Pooja