Uttarakhand High Court
Krishna Kant Anand vs State Of Uttarakhand on 11 January, 2017
Author: Rajiv Sharma
Bench: Rajiv Sharma
Reserved Judgment
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Appeal No.29 of 2014
Jitendra Kumar
....... Appellant
Versus
State of Uttarakhand
...... Respondent
Mr. R.P. Nautiyal, Sr. Adv. assisted by Mr. C.S. Rawat, Advocate for the appellant.
Mr. Nandan Arya, Dy. Advocate General, for the State.
(2) Criminal Appeal No.34 of 2014
Dharam Singh
....... Appellant
Versus
State of Uttarakhand
...... Respondent
Mr. R.P. Nautiyal, Sr. Adv. assisted by Mr. N.S. Pundir, Advocate for the appellant.
Mr. Nandan Arya, Dy. Advocate General, for the State.
(3) Criminal Appeal No.41 of 2014
Krishna Kant Anand
....... Appellant
Versus
State of Uttarakhand
...... Respondent
Dated: January 11, 2017
Mr. R.P. Nautiyal, Sr. Advocate, for the appellant.
Mr. Nandan Arya, Dy. Advocate General, for the State.
Hon'ble Rajiv Sharma , J.
Since the common questions of law and fact are involved in these appeals, hence all these appeals are 2 taken up together and decided by this common judgment.
These appeals are instituted against the judgment dated 30.01.2014 rendered by the First
Additional Sessions Judge, Rishikesh (Dehradun) in Sessions Trial No.97 of 2010, whereby, all the appellants /accused, (hereinafter referred as 'the accused'), who were charged with and tried for the offences punishable u/s 373 r/w Section 34 IPC, were convicted u/s 373 r/w Section 34 IPC and sentenced to undergo five years' imprisonment with fine of Rs.5,000/- each and in default of payment of fine, to undergo additional imprisonment for four months.
Case of the prosecution, in a nutshell, is that an F.I.R. was lodged by PW3 Jai Prakash Mishr. It was stated in the F.I.R. that a man had come on 3.8.2008 at 2 PM at Hotel Uttaranchal, Dehradun Road, Rishikesh. He booked the Room No.102. In the guest register, he mentioned his name S.K. Sharma, T.H.D.C. Ltd., Koteshwar. He alone stayed in the room. Thereafter, at 11:30 in the night, three more men and two women came in the hotel. They went in Room No.102. Thereafter, Mr. S.K. Sharma came at the reception and demanded one more double-bed room. Then the receptionist PW2 Vaibhav Bhatt gave them Room No.107. After that one Dinesh, who was staying in Room Nos.108 and 109, came at the reception and informed PW2 that the persons occupying Room No.107 were misbehaving and they were under the influence of alcohol. PW3 Jai Prakash Mishr, the Manager of the Hotel, was apprised of the situation at 3 a.m. by PW2 Vaibhav Bhatt. PW3 went 3 to Room No.107. He peeped into the room and saw that lot of damage had been caused to the property. He saw the occupants of the room in naked and semi-naked condition and committing obscene acts. They were also involved in prostitution.
Thereafter, the F.I.R. was registered. Police reached at the spot. Police went to the Room No.107 of the hotel at 4 a.m. of the morning. One man, in semi- naked condition, ran away from the room. He was chased but could not be nabbed. Thereafter, the Investigating Officer enquired the name of other occupants of the room. Police then effected the search of the accused persons. Recovery memos were prepared. Accused were arrested. The matter was investigated and the Challan was put up after completing the codal formalities under Sections 373/376 IPC.
Prosecution has examined a number of witnesses in support of its case. Accused were also
examined under Section 313 Cr.P.C. They have denied the case of the prosecution.
The accused were convicted and sentenced, as noticed hereinabove. Hence these appeals.
Learned Senior Counsel, appearing on behalf of all the accused, has vehemently argued that the prosecution has failed to prove its case against the accused beyond reasonable doubt.
On the other hand, learned Deputy Advocate General, appearing for the State, has supported the judgment dated 30.01.2014 rendered by the Trial Court.
4I have heard learned Senior Advocate appearing on behalf of all the appellants as well as learned Dy. Advocate General appearing for the State and have perused the impugned judgment and trial court record very carefully.
PW1 Dr. D.S. Rawat has deposed that on 20.8.2003, he was working as a Radiologist in Doon Hospital. On that day, he had examined Km. Pooja who was brought by Constable Rajeshwari Mamgain. He had undertaken her X-ray. According to him, the age of Km. Pooja was between 16-17 years.
PW7 Dr. Sushmita Verma has deposed that on the relevant day, she was posted as Medical Officer in S.P.S. Govt. Hospital, Rishikesh. On that day, she examined Km. Pooja. This witness also examined Km. Roshni. She has proved the medical reports. According to this witness, the age of Km. Pooja could be 17 years. However, she has stated that no opinion could be given about the sexual intercourse.
PW2 Vaibhav Bhatt has testified that he was working as Receptionist in Hotel Uttaranchal. He had gone to have his lunch on 3.8.2003. When he returned, Waiter Rajendra informed him that one room was booked in the name of one Mr. Sharma. Perhaps, it was Room No.102. At 8 of the night, 3-4 people had come. Thereafter, in the night hours, Room No.107 was given to them. Three men, one mother and her daughter were staying in those rooms. The person occupying Room No.108 had informed him that the persons occupying Room No.107 were disturbing them. He narrated the incident to the Manager. The Manager then informed the 5 police. Police came in the hotel and went inside the room. They saw the ladies in naked condition. Police took away 3-4 persons with them.
PW2 Vaibhav Bhatt however has categorically deposed that accused Krishan Kand Anand and Dharam Singh were not the persons who were taken away by the police. He was declared hostile and was cross-examined by learned Public Prosecutor. PW2 was also confronted with his statement recorded u/s 161 Cr.P.C. According to him, he has not given statement to the I.O. about the incident.
PW3 Jai Prakash Mishr has testified that he was working as a Manager in Uttaranchal Hotel, Rishikesh. He had given information about the incident to the police. He failed to recognize Krishan Kant in the Court. He was also declared hostile.
PW4 Constable Kamla Jugran has testified that she along with other police officials left the Police Station, Rishikesh at 3:20 A.M. and reached Uttaranchal Hotel. Sub Inspector S.K. Mishra informed them that police had got information about the prostitution in Room No.107. They went to Room No.107. They saw one woman was sitting naked on the bed. One man was present in semi-naked condition. They heard some noise. They came to the conclusion that the prostitution was going on in the room. Thereafter, they entered the room at 4 a.m. of the morning. The witness has further stated that Km. Pooja was naked and accused Krishan Kant was semi-naked. The accused disclosed their names. Police effected the recoveries from Ms. Pooja and Ms. Roshni Devi. Police recovered Rs.100/- from Ms. 6 Roshni Devi. Nothing was recovered from the possession of Ms. Pooja. Accused Krishant Kant, Dharam Singh and Jitendra were also searched.
PW5 Head Constable Rajeshwari Mamgain has corroborated the version of PW4 Constable Kamla Jugran.
PW6 Head Constable Pradeep Pande is a formal witness who registered the F.I.R.
PW8 S.I. Sushil Kumar Mishra has deposed that he received information in the night of 3.8.2003 that in Uttaranchal Hotel, four men and two women were causing ruckus in the hotel after consuming alcohol. He sought the permission of C.O. Mahesh Chandra Tamta. Thereafter, he reached the hotel. He met Constables Rajeshwari and Kamla Jugran there. He went inside the Room No.107 along with the lady constables. Door was not locked. He peeped into the room. He saw that Krishan Kant, Dharam Singh, Jitendra, Roshni and Pooja were lying inside the room in naked and semi-naked condition. They entered the room. One man managed to escape. Recoveries were effected. The accused were arrested. Accused were also examined by PW10 Dr. S.D. Uniyal. According to him, the accused Krishan Kant, Jitendra and Dharam Singh were smelling of liquor but they were not drunk.
What emerges from the facts, enumerated hereinabove, is that PW3 Jai Prakash, Manager of the Hotel, lodged the report with the police. Police reached at the spot. The age of Km. Pooja was opined to be between 16-17 years. PW7 Dr. Sushmita Verma has not given 7 any specific opinion about the rape. Information was given to the receptionist by one Dinesh Kumar who was occupying Room Nos.107 and 109.
PW2 Vaibhav Bhatt has failed to identify Krishan Kant Anand and Dharam Singh in the Court. He was declared hostile. In cross-examination by learned Public Prosecutor, when PW2 was confronted with his statement given u/s 161 Cr.P.C. he stated that he has not given any statement to the I.O. about the incident.
Similarly, PW3 Jai Prakash has failed to identify Krishan Kant in the Court. He was also declared hostile.
According to the prosecution story, Km. Pooja and her mother Ms. Roshni were found in the room of Uttaranchal Hotel, but neither Ms. Pooja nor Ms. Roshni have been examined by the prosecution as witnesses. Their names were not even mentioned in the list of witnesses filed along with the charge-sheet. Ms. Pooja and Ms. Roshni were the material witnesses. Ms. Pooja was medically examined with her mother but they were not produced by the prosecution as witnesses, though readily available. Since the accused were charged under Section 373 IPC, the statements of Ms. Pooja and Ms. Roshni were material.
According to the deposition of PW4 Constable Kamla Jugran, when the search of accused was undertaken, only a sum of Rs.100/- was recovered from the possession of Ms. Roshni. However, nothing was recovered from the possession of Ms. Pooja. The accused 8 namely Krishan Kant, Jitendra and Dharam Singh were also medically examined but they were not found drunk.
The case of the prosecution precisely is that one Dinesh, occupying Room Nos.108 and 109 in the hotel, reported the matter to the PW2 Vaibhat Bhatt about the activities being carried out in Room No.107. However, the fact of the matter is that Dinesh was also not examined by the prosecution. He was a material witness of the case. No plausible explanation has been put forth by the prosecution as to why the material witnesses Dinesh, Ms. Pooja and Ms. Roshni were not examined. The Trial Court ought to have drawn adverse inference against the prosecution for non-examining Dinesh, Ms. Pooja and Ms. Roshni, though readily available.
PW2 Vaibhav Bhatt has failed to identify accused Krishan Kant and Dharam Singh in the Court while PW3 Jai Prakash Mishr has failed to identify accused Krishan Kant in the Court. PW2 and PW3 were declared hostile. The remaining witnesses PW4 Constable Kamla Jugran, PW5 Head Constable Rajeshwari Mamgain and PW8 S.I. Sushil Kumar Mishra are the official witnesses. The statements of official witnesses though, can be relied upon, but in view of non- examination of material witnesses, namely, Dinesh, Ms. Pooja and Ms. Roshni, it would not be safe to rely on the testimonies of the official witnesses.
In A.I.R. 1968 Supreme Court Page 1402, Their Lordships of Hon. Apex Court in the case of 'Karnesh Kumar Singh & others v. State of U.P.' have held that a prosecutor should never adopt the device of 9 keeping back eyewitnesses only because their evidence is likely to go against the prosecution. The duty of the prosecutor is to assist the Court in reaching a proper conclusion. If it is shown that persons who had witnesses the incident have been deliberately kept back, the court may draw an adverse inference and in a proper case, record such failure as constituting a serious infirmity in the proof of the prosecution case. Their Lordships have held as under: -
"13. Counsel argued that the High Court erred in declining to do so and relied on Habeeb Mohammed v. State of Hyderabad where it has been observed that it is the bounded duty of the prosecution to examine a material witness particularly when no allegation has been made that, if produced, he would not speak the truth. The decision further observes that not only does an adverse inference arise against the prosecution case from his non-production as a witness in view of illustration (g) to Section 114, but that the circumstance of his being withheld from the court would cast a serious reflection on the fairness of the trial. In Darya Singh v. State of Punjab3 also this Court has observed that a prosecutor should never adopt the device of keeping back eyewitnesses only because their evidence is likely to go against the prosecution and that the duty of the prosecutor is to assist the Court in reaching a proper conclusion. It is open, however, to the prosecutor not to examine witnesses who in his opinion have not witnessed the incident, but normally, he ought to examine all the eyewitnesses in support of his case. But in a case where a large number of persons have witnessed the incident, it is open to him to make a selection. The selection must, however, be fair and honest and not with a view to suppress inconvenient witnesses. Therefore, if it is shown that persons who had witnessed the incident have been deliberately kept back, the court may draw an adverse inference and in a proper case record such failure as constituting a serious infirmity in the proof of the prosecution case."
Their Lordships of Hon. Supreme Court in (2001) 1 SCC page 145 in the case of 'Takhaji Hiraji v. Thakore Kubersing Chamansing & others' have held that if a material witness, who would unfold the genesis of the incident or an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which could have been supplied or made good by examining a witness 10 who though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the court to draw an adverse inference against the prosecution by holding that if the witness would have been examined it would not have supported the prosecution case. Their Lordships have held as under: -
"19. So is the case with the criticism levelled by the High Court on the prosecution case finding fault therewith for non-examination of independent witnesses. It is true that if a material witness, who would unfold the genesis of the incident or an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which could have been supplied or made good by examining a witness who though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the court to draw an adverse inference against the prosecution by holding that if the witness would have been examined it would not have supported the prosecution case. On the other hand if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non-examination of such other witnesses may not be material. In such a case the court ought to scrutinise the worth of the evidence adduced. The court of facts must ask itself -- whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the court. If the answer be positive then only a question of drawing an adverse inference may arise. If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable the court can safely act upon it, uninfluenced by the factum of non-examination of other witnesses. In the present case we find that there are at least 5 witnesses whose presence at the place of the incident and whose having seen the incident cannot be doubted at all. It is not even suggested by the defence that they were not present at the place of the incident and did not participate therein. The injuries sustained by these witnesses are not just minor and certainly not self-inflicted. None of the witnesses had a previous enmity with any of the accused persons and there is apparently no reason why they would tell a lie. The genesis of the incident is brought out by these witnesses. In fact, the presence of the prosecution party and the accused persons in the chowk of the village is not disputed. How the vanity of the Thakores was hurt leading to a heated verbal exchange is also not in dispute. Then followed the assault. If the place of the incident was the chowk then it was a sudden and not premeditated fight between the two parties. If the accused persons had reached their houses and the members of the prosecution party had followed them and opened the assault near the house of the accused persons then it could probably be held to be a case of self-defence of the accused persons in which case non-explanation of the injuries sustained by the accused persons would have assumed significance. The learned Sessions Judge has on appreciation of oral and circumstantial evidence inferred that the place of the incident was the chowk and not a place near the houses of the accused persons. Nothing more could have been revealed by other 11 village people or the party of tightrope dance performers. The evidence available on record shows and that appears to be very natural, that as soon as the melee ensued all the village people and tightrope dance performers took to their heels. They could not have seen the entire incident. The learned Sessions Judge has minutely scrutinised the statements of all the eyewitnesses and found them consistent and reliable. The High Court made no effort at scrutinising and analysing the ocular testimony so as to doubt, if at all, the correctness of the several findings arrived at by the Sessions Court. With the assistance of the learned counsel for the parties we have gone through the evidence adduced and on our independent appreciation we find the eyewitnesses consistent and reliable in their narration of the incident. In our opinion non-examination of other witnesses does not cast any infirmity in the prosecution case."
In the instant case, Mr. Dinesh, Ms. Roshni and Ms. Pooja were the material witnesses for unfolding the case of prosecution. They were readily available but not examined by the prosecution for the reasons best known to it.
Their Lordships of Hon. Supreme Court in (2009) 14 SCC page 541 in the case of 'Mussauddin Ahmed v. State of Assam' have held that it is the duty of the party to lead the best evidence in its possession which could throw light on the issue in controversy and in case such material evidence is withheld, the court may draw adverse inference notwithstanding that the onus of proof did not lie on such party and it was not called upon to produce the said evidence. It was held as under: -
"11. It is the duty of the party to lead the best evidence in its possession which could throw light on the issue in controversy and in case such material evidence is withheld, the court may draw adverse inference under Section 114 Illustration (g) of the Evidence Act, 1872 notwithstanding that the onus of proof did not lie on such party and it was not called upon to produce the said evidence (vide Gopal Krishnaji Ketkar v. Mohd. Haji Latif AIR 1968 SC 1413)."
Their Lordships of Hon. Supreme Court in (2012) 4 SCC page 722 in the case of 'Govindaraju @ Govinda v. State' have held that the principle of 'adverse inference' pre-supposes that withholding of such material witnesses who could have stated precisely and cogently the events as they occurred and without their 12 examination, there would remain a vacuum in the case of the prosecution. It was held that if such a witness, without justification, is not examined, inference against prosecution can be drawn by the court, more particularly, when principal witness of prosecution becomes hostile, greater is the requirement of prosecution to examine all other material witnesses who could depose in completing chain by proven facts.
"65. The applicability of the principle of "adverse inference"
presupposes that withholding was of such material witnesses who could have stated precisely and cogently the events as they occurred. Without their examination, there would remain a vacuum in the case of the prosecution. The doctor was a cited witness but was still not examined. The name of the Head Constable and the constable appears in the police investigation but still they were not examined. It is true that in their absence the post-mortem report and the FSL report were exhibited and could be read in evidence. But still the lacuna in the case of the prosecution remains unexplained and the chain of events unconnected. For instance, the Head Constable could have described the events that occurred right from the place of occurrence to the death of the deceased. They could have well explained as to why it was not possible for one police officer, one Head Constable and one constable to apprehend all the accused or any of them immediately after the occurrence or even make enquiry about their names. Similarly, the doctor could have explained whether inflicting of such injuries with the knife recovered was even possible or not. The expert from the FSL could have explained whether or not the weapons of offence contained human blood and, if so, of what blood group and whether the clothes of the deceased contained the same blood group as was on the weapons used in the commission of the crime. The uncertainties and unexplained matters of the FSL report could have been explained by the expert. There is no justification on record as to why these witnesses were not examined despite their availability.
66. This Court in Takhaji Hiraji clearly stated that material witness is one who would unfold the genesis of the incident or an essential part of the prosecution case and by examining such witnesses the gaps or infirmities in the case of the prosecution could be supplied. If such a witness, without justification, is not examined, inference against the prosecution can be drawn by the court. The fact that the witnesses who were necessary to unfold the narrative of the incident and though not examined, but were cited by the prosecution, certainly raises a suspicion. When the principal witnesses of the prosecution become hostile, greater is the requirement of the prosecution to examine all other material witnesses who could depose in completing the chain by proven facts. This view was reiterated by this Court in Yakub Ismailbhai Patel v. State of Gujarat."
In the instant case, PW2 Vaibhav Bhatt and PW3 Jai Prakash Mishr, who were the material witnesses, did not support the prosecution story and they 13 were declared hostile. It was necessary for the prosecution to produce the material witnesses i.e. Dinesh, Ms. Pooja and Ms. Roshni in the Court in order to complete the chain of events.
Thus, in the present case, the prosecution has failed to prove its case against the appellants/accused beyond reasonable doubt. The adverse inference is drawn against the prosecution for non-examining the material witnesses i.e. Dinesh, Ms. Pooja and Ms. Roshni, though were readily available to complete the chain of events. The prosecution has thus, failed to prove the case against the accused beyond reasonable doubt.
Accordingly, all the three appeals are allowed. The impugned judgment and order dated 30.01.2014 rendered by the First Additional Sessions Judge, Rishikesh (Dehradun) in Sessions Trial no.97 of 2010, State v. Krishan Kant & others, is hereby set aside. Appellants are already on bail. Their bail bonds are discharged.
Let a copy of this judgment along with the LCR be transmitted to the court below.
(Rajiv Sharma, J.) Rdang