Ram Chandra Saini vs State Of Uttarakhand

Ravindra Maithani, J

This appeal is directed against the judgment and order dated 10.05.2018 and 17.05.2018 in Sessions Trial No.263 of 2012, State vs. Ramchandra Saini, passed by the Court of learned IInd Additional Sessions Judge, Kashipur, District Udham Singh Nagar. By the impugned judgment and order the appellant has been convicted under Section 302 IPC and sentenced to imprisonment for life and a fine of Rs.20,000/-. In default of payment of fine to undergo rigorous imprisonment for a further period of two years.

Briefly stated, according to the prosecution, the appellant, a snappish person, was neighbour of Mohan Jha. They were not in good terms because six months prior to the date of incident, the dog of appellant had bitten a relative of the first informant. The appellant was advised to manage his dog, due to which he was inimical to the first informant and his family members and quite often, he would abuse them. On 09.09.2012 at 07:30 PM, the appellant had a quarrel with his wife. Deceased Shambhu Jha intervened and resolved it. At that time also, appellant abused Shambhu Jha as to who is he to intervene in their internal matter. On the same day, at 11:15 PM, when deceased Shambhu Jha and his son Vicky were asleep in the courtyard, covering them with a mosquito net, at that time, the appellant armed with a funti (a piece of wood) attacked deceased Shambhu Jha and his son, indiscriminately. He kept on attacking them till they silenced. Hearing the screams of the deceased, the neighbours assembled and they saw appellant running from there in the electric light. Both deceased Shambhu Jha and Vicky were taken to hospital. Deceased Vicky died in the next morning. Deceased Shambhu died during treatment next day in the evening. A report of this incident was lodged on 10.09.2012 at 07:00 PM at Police Station Kashipur, District Udham Singh Nagar. Based on it, a Case Crime No.518 of 2012 under Section 302 IPC was lodged. Record reveals that on 10.09.2012 inquest of deceased Vicky was prepared by a police officer. Inquest of deceased Shambhu was also prepared on 10.09.2012. Post mortem of the dead bodies were conducted on 11.09.2012. According to the doctor, the deceased died due to anti-mortem injuries caused by sharp cutting weapon. During investigation, appellant was arrested and according to the prosecution at his instance a funti, by which the deceased were killed, was also got recovered. The investigating officer took into custody the plain and blood stained soil. These articles along with the funti were sent for forensic science examination. According to forensic report, blood was detected on these articles though the source of blood could not be detected. After investigation charge sheet was submitted against the appellant. Cognizance taken and the case committed for trial. On 29.11.2012 charge under Section 302 IPC was framed against the appellant, to which he denied and claimed trial.

The prosecution examined 9 witnesses in support of the case, namely, PW1 Niranjan Kumar, PW2 Sanjay Kumar, PW3 Mohan Jha, PW4 Pawan Devi, PW5 S.I. Amar Chandra Sharma, PW6 Baccha Jha, PW7 J.P. Juyal, PW8 Dr. Charak Saangwan and PW9 Navin Joshi.

The appellant was examined under Section 313 of the Code of Criminal Procedure, 1973 (for short 'the Code'). According to the appellant he has been falsely implicated. He is innocent.

After considering the material on record, the learned court below convicted and sentenced the appellant, as stated hereinbefore. Aggrieved, the instant appeal.

Learned counsel for the appellant would argue that it is a false case; the medical evidence does not support the oral evidence. Presence of witness PW1 Niranjan Kumar and PW2 Sanjay Kumar is highly doubtful at the place of occurrence, because their houses have not been shown near the place of occurrence, in the site plan. The source of light has not been established by the prosecution. It is important in the case because the incident allegedly occurred sometime in the mid-night. The statements of PW3 Mohan Jha and PW4 Pawan Devi are not consistent. There are contradictions in their statements; both these witnesses have not witnessed the offence; their statements cannot be made a basis for conviction. Motive as attributed, does not carry the weight, which may be a reason to commit the crime; all the witnesses are interested. Therefore, it is argued that the prosecution utterly failed to prove the charge against the appellant. The appellant ought to have been acquitted of the charge. But the court below, committed an error in convicting and sentencing the appellant. Hence, the appeal deserves to be allowed.

On the other hand, learned State counsel would argue that it is a case based on direct evidence; motive has less relevancy; the appellant was neighbour of the witnesses, therefore, the witnesses have ample opportunity to identify the appellant, even in the dim light; the incident occurred in the courtyard of PW3 Mohan Jha, therefore, the natural witnesses could be the family members, who were residing in the vicinity. Learned State counsel would argue that PW1 Niranjan Kumar was examined on 10.01.2014 when he proved the first information report, lodged by him and stated about the incident. His statement has been supported by the statement of PW8 Dr. Charak Saangwan. PW3 Mohan Jha and PW4 Pawan Devi also corroborate his statement. It is argued that PW1 Niranjan Kumar was examined on 10. 01.2014, on that day his cross-examination was deferred. Thereafter, on 6.01.2015 he turned hostile and did not support the statement, which he had given in his examination-in-chief. It is argued that PW3 Mohan Jha and PW4 Pawan Devi are eye witnesses. The medical evidence corroborates the oral evidence. It is a case, which has been proved beyond reasonable doubt by the prosecution. The learned court below rightly convicted and sentenced the appellant. No interference is warranted and the appeal deserves to be dismissed.

PW1 Niranjan Kumar is the first informant. In his examination-in-chief he has reiterated the version, which he had given in the FIR. According to him, the appellant was inimical to the family of this witness because of two incidents, which occurred prior to the date of incident; one in which, the dog of the appellant had bitten a family member of this witness and the appellant was advised to manage his dog, which according to this witness upset him and second on 09.09.2012, when the appellant had a quarrel with his wife and the deceased Shambhu Jha intervened and resolved it, which, also upset the appellant and he abused, the deceased Shambhu Jha and challenged him as to who is he to intervene. In his examination-in-chief, this witness states that on 09.09.2012, both deceased Shambhu and his son Vicky were asleep in the courtyard, at about 11:15 PM, when the appellant, who was their neigbour came along with a funti in his hand and attacked the deceased Shambhu Jha and Vicky. Hearing the noise, this witness, his neighbour Sanjay and other people assembled and in the electric light they saw appellant hitting the deceased and running away from the place of occurrence. Thereafter, according to him, the deceased were taken to the hospital, where deceased Vicky died in the morning and next day in the evening deceased Shambhu Jha also died. This witness proved the FIR Ex.A1. He also states that plain and blood stained soil were taken into custody by the police on 10.09.2012, which he also witnessed. He has also stated about the arresting of appellant as well as recovery of the funti at his instance. PW2 Sanjay Kumar did not support the prosecution. He has been declared hostile at the very outset. PW3 Mohan Jha and PW4 his wife, Pawan Devi have stated about the incident. Their evidence would be discussed in a little later. PW5 S.I. Amar Chandra is the investigating officer, who prepared the site map of the place of occurrence, Ex. A4 and also took into custody the plain and blood stained soil and arrested the appellant. According to him, the appellant confessed his guilt and at his instance a funti was recovered. PW6 Baccha Jha has also not supported the prosecution case. He has also been declared hostile. PW7 is the investigating officer, who submitted charge sheet in the case.

PW8 Dr. Charak Saangwan is the doctor, who conducted post mortem of the deceased Shambhu Jha on 11.09.2012. According to him, he found the following injuries on the person of deceased Shambhu Jha:-

"1. Reddish abrasion of size 4x3 cm present over left shoulder's joint.

Reddish abrasion of size 3x3 cm present over left knee joint.

Reddish abrasion of size 5x2 cm present 3 cm below left knee joint.

An obliquely placed incised wound of size 6x2 cm into bone deep present 6 cm above left pinna and 4 cm away from midline of body over left parietal area of head. Brain is protruding out. On dissection underlying parietal bone is found cut of length 5 cm. Margins of wound are red and soft dried blood clots are present at base of wound.

A horizontally placed incised wound of size 7x2 cm into bone deep present 4 cm above it. Pinna and 6 cm below midline of body over it. Tempero parietal area. Brain matter is protruding out. On dissection underlying parieto temporal bone is found cut of length 6.5 cm. Margins of wound are red and soft. Clots are present at base of wound.

An obliquely placed incised wound of size 4x2 cm in scalp deep is present above it. Pinna and 6 cm away from midline of body over it. Tempero parietal area on dissection underlying scalp and outer table of tempo parietal scalp is found cut of length 6 cm in length. Margins of wound are red and soft. Dried blood clots are present at base of wound

A vertically placed incised wound of size 3 x 2 cm x scalp deep is present 4 cm away from midline and 6 cm behind it. Pinna over it. Occipital area of head. On dissection underlying of occipital bone outer and inner table are found cut of 2 cm with margins of wound are red and soft. Dried blood clots are present at the base of wound."

According to PW8 Dr. Charak Saangwan the cause of death was Hemorrhage and shock as a result of ante-mortem injuries caused by sharp cutting weapon.

PW8 Dr. Charak Saangwan also conducted post mortem of deceased Vicky on 11.09.2012 and found the following injuries:-

"1. An obliquely placed incised wound of size 3x1 cm into bone deep present 1 cm above right eyebrow and 5 cm away from midline of body over right frontal bone. Brain matter is protruding out. On dissection underlying frontal bone is found cut of length 3 cm. Margins of wound are red and soft. Dried blood clots are found at base of wound.

An obliquely placed incised wound of size 3x1 cm into scalp deep present 3 cm lateral to midline of body and 8 cm above hairline over right parietal area of head. On dissection underlying scalp and outer table of parietal bone is found cut of length 3 cm. Margins of wound are red and soft and dried blood clots present at base of wound.

An horizontally placed incised wound of size 3.5x1.5 cm into scalp deep 4 cm lateral to midline of body and 10 cm above hairline over right parietal area of head. On dissection underlying scalp and outer and inner table of parietal bone is found cut of length 3.5 cm. Margins of wound cut and soft dried blood clots present at base of wound.

An obliquely placed incised wound of size 1x0.5cm into scalp deep present 2 cm lateral to midline of body and 11 cm above hairline over right parietal area of head. On dissection underlying scalp is found cut of length 1 cm. Margins of wound are red and soft dried blood clots are present at wound.

According to PW8 Dr. Charak Saangwan the cause of death was Hemorrhage and shock as a result of ante-mortem injury caused by sharp cutting weapon.

PW9 Naveen Joshi proved the chik FIR and entries in G.D.

As stated in his examination-in-chief PW1 Niranjan Kumar has reiterated the version of FIR and stated about the incident. There are two more witnesses of the incident. PW3 Mohan Jha and PW4 Pawan Devi, in whose house, the deceased had come on the fateful day. PW3 Mohan Jha states that on 09.09.2012 at about 11:15 PM the appellant armed with funti came towards his house and indiscriminately attacked deceased Shambhu Jha and Vicky, who were asleep in his courtyard. He kept on attacking them till they silenced. This witness and his wife were inside the house. The appellant also hit at their door with a danda; people gathered there and thereafter the appellant ran away. According to PW3 Mohan Jha, he identified the appellant in the electric light and saw him running with funti. He states as to what happened thereafter. He is a witness of inquest also, which he proved. PW4 Pawan Devi is the wife of PW3. According to PW4 Pawan Devi on 09.09.2012 at about 11:00 PM deceased Shambhu and Vicky were asleep in their courtyard. She heard the sound of fat-fat. She opened the door but they assaulted her also. She closed the door and cried. At her cry, her husband, children and neighbours also woke up and then those people ran away. Thereafter, according to this witness, she and her husband opened the door; there was electric light; she did not see anything. She became unconscious.

PW1 Niranjan Kumar is the first informant. It is true that in his examination-in-chief he has reiterated the version of FIR but, it is equally true that in his cross-examination he has not supported the prosecution case.

In his cross-examination, he states that he did not witness the incident. He also denied recovery of any articles in his presence. He also states that he did not go along with the injured to the hospital. He heard about the incident next day morning. After his cross examination, this witness was further cross-examined by the prosecution.

It is a fact that after his examination-in-chief on 10.01.2014 this witness was cross-examined after a year on 06.01.2015. Be it as it may, the fact remains that this witness PW1 is not consistent. It may be seen from another angle as well. The site map has been proved, which is Ex.A8. In this site plan, the house of PW1 Niranjan Kumar has not been shown. Place of incident has been shown in the courtyard of PW3 Mohan Jha. From about 10 paces from a point 'B' this witness is shown to have witnessed the incident. Where was PW1 Niranjan Kumar, when he for the first time heard the noise in the night at 11:15 PM? It is not something, which has happened when PW1 Niranjan Kumar would have been present in the normal course. The incident occurred at 11:15 in the night. When cross examined by the prosecution PW1 states that his house is situated at a distance of 200 meter away from the place of occurrence. In the site map, houses of other persons have been shown near the place of occurrence. Did PW1 Niranjan Kumar heard the noise at about 200 meter, at his house, and then he came at the place of occurrence? It is not categorically stated. This also creates doubt about the presence of PW1 Niranjan Kumar at the place of occurrence. In his cross examination, PW1 has not supported the prosecution case. Statement of PW1 Niranjan Kumar does not support the prosecution case. It also doubts the credibility of the FIR.

Now, according to PW3 Mohan Jha both deceased were asleep at one bed. They had covered themselves with a mosquito net. They were sleeping in the courtyard. According to PW3 Mohan Jha, his wife reached at the place of incident first, and he followed her. He categorically states that he saw appellant running from the place of occurrence in the electric light. According to PW4 Pavan Devi, hearing sound of fat-fat, she opened the door. They attacked her also. She closed the door and screamed. At this, her children, husband and neighbours woke up. Then according to this witness "wah log bhag gye" (those people ran away) and then when door was opened, according to this witness, she did not see anything. It means, according to PW4 Pawan Devi, she did not witness the appellant either hitting the deceased or running away. PW4 Pawan Devi could not see as to, who the assailants were?

PW4 Pawan Devi has used the plural number for the assailants, when she says, "wah log bhag gye" (Those people ran away). According to PW4 Pawan Devi, she did not see the assailants, because as soon as she opened the door, she was also attacked and then she closed the door. When the assailants, according to PW4 Pawan Devi, ran away, she opened the door and seeing double murder, she became unconscious. Though at one stage, in her cross-examination, PW4 Pawan Devi states that the appellant was all alone at the time of incident. How could she say so, because as per her statement given in examination-in-chief, she did not see any of the assailants?

According to PW3 Mohan Jha, he reached at the place of incident after his wife PW4 Pawan Devi. PW4 Pawan Devi did not see the assailant(s). How could PW3 Mohan Jha see any of the assailants and identify the appellant? Therefore, his statement is not transpiring confidence.

No source of light at all has been shown at the place of occurrence in the site plan. The house of PW3 Mohan Jha and PW4 Pawan Devi was not pucca house. It is a Jhhopri. Incident occurred in the night at 11:15 PM. Source of light is important to be established. It is also true that an acquaintance can be identified even in some dim light. But, if it is dark, unless somebody speaks, even a neighbour cannot be identified. It also depends as to what is the duration to see the person in dark. Gait, movement speech etc. may be helpful in such identification. In the instant case, according to the prosecution, the incident happened within a short span of time. It is alleged that the deceased were attacked suddenly and indiscriminately. It gives much less opportunity to identify the assailant (s) in the dark. Here source of light become important. This Court has held that PW3 Mohan Jha and PW4 Pawan Devi did not witness the incident. Their statements are not inspiring confidence.

As stated, source of light is not shown in the site plan. PW3 Mohan Jha states that there was an electric bulb in his house. Though he says he had no electric connection. PW4 Pawan Devi says that they had taken electric connection from the neighbours. Who is that neighbour? No house adjacent to the house of PW3 Mohan Jha and PW3 Pawan Devi has been shown in the site map. It creates doubt about the reliability of the statements of PW3 Mohan Jha and PW4 Pawan Devi about the source of light also. Source of light has not been established. Prosecution failed to prove that any of the witness has any occasion to identify the assailant (s) in the dark night at 11:15 PM. It also doubts the prosecution case.

According to PW8 Dr. Charak Saangwan seven injuries were noted on the body of deceased Shambhu and four injuries were found on the body of Vicky Jha. They are incised wounds. According to the doctor the injuries have been caused by a sharp-cutting weapon. According to prosecution the deceased were attacked with a funti. PW8 Dr. Charak Saangwan in the last sentence of his examination states that these injuries cannot possibly be caused by any funti.

PW4 Pawan Devi at one stage, in her statement, has stated that when the people gathered around the place of incident, the assailants ran away. She had used the number of plurals, which has already been discussed, hereinbefore. The injuries on the person of the deceased are many. According to the prosecution, both the deceased were sleeping in the courtyard and had covered themselves with a mosquito net. A single person suddenly with a funti gives so many blows without any interruption, this story is not gaining support from any other material. The injuries are not superficial. They are incised wounds. The nature of injuries reveals that it was brutal. The brain material was protruding out. PW5 Amar Chandra Sharma is the Investigating Officer. According to him, he took the funti into custody at the instance of the appellant. There is no other witness of the recovery of funti. PW1 Niranjan Kumar's statement is self-contradictory. It cannot give any support to the statement of PW5 Amar Chandra Sharma with regard to recovery of funti. According to recovery memo, the funti was four balist long, seven angul in width and four angul thick. PW8 Dr. Charak Saangwan categorically says that these injuries cannot be caused by a funti. Having considered the injuries and the evidence of PW8 Dr. Charak Saangwan, this Court is of the view that ,in fact, the medical evidence, in the instant case is not supporting the prosecution case.

There are few more aspects of the matter. FIR in the instant case has been lodged on 10.09.2012 at 07:00 PM, the place of incident is at a distance of 4 km from the police station and the incident, according to the prosecution, occurred at 11:15 PM on 09.09.2012. The FIR is delayed. It is argued that deceased Shambhu Jha died in the evening of 10.09.2012, therefore, the report was lodged, thereafter. It may be noted here that the deceased Shambhu Jha and Vicky were not the residents of the place where they died. Shambhu Jha was working in Delhi, who had come to stay with PW3 Mohan Jha. Report has not been lodged by PW3 Mohan Jha, in whose house the deceased was staying. Now, a few more questions are unanswered, they are, who took the deceased to the hospital? What was the treatment given to the deceased? When they reached hospital? Deceased Vicky died on 10.09.2012 at 4:10 AM.

Inquest of deceased Vicky is Ex.A3. It has been proved by PW3 Mohan Jha. Who prepared this inquest? it is not proved. The author has not been examined. According to this inquest report, a ward boy gave a memo at the police station regarding death of deceased Vicky Jha and thereafter the author, left the police station and an entry was made at police station, G.D. report no.26, time 09:35 AM. What information was given by the ward boy to the police station? If the author of the inquest left the police station at 09:35 AM, the question is as to when was the inquest prepared? No specific time is recorded in the inquest report. The next question is, if police person came at the hospital to prepare the inquest, did not they ask, as to how did the deceased died? What was recorded in the memo of the hospital, which was presented by the ward boy at the police station? What was recorded in the G.D. report no. 26, Time 09:35 AM, at Police Station Kashipur, by which the police team left the police station for preparing the inquest? The name of the assailants was not revealed. Nobody bother to know as to who did it or nobody told it on their own as to how it was done? It was not a simple case of hitting someone. It was a case of double murder, a cognizable offence. Nothing is established by the prosecution. Therefore, in the instant case non-recording the name of the assailant(s) in any police records, prior to lodging of the FIR, despite police interference, in terms of inquest etc., definitely, creates doubt in the prosecution story.

In view of the forgoing discussion, this Court is of the view that prosecution has not been able to prove the charge against the appellant and the learned court below committed an error in convicting and sentencing the appellant. Therefore, the impugned order deserves to be set aside and the appeal allowed.

The appeal is allowed. The impugned judgment and orders dated 10.05.2018 and 17.05.2018 are set aside.

The appellant is acquitted of the charge under Section 302 IPC.

Appellant is in jail. He be released forthwith, if not wanted in any other case.

Let the copy of the judgment along with lower court record be sent to the court below for compliance.