Satyadev & Others vs State Of Uttarakhand & Others

Ravindra Maithani, J

Challenge in these appeals is to the judgment and order dated 14.02.2013, passed in Sessions Trial No. 272 of 2004 and Sessions Trial No. 273 of 2004, State Vs. Satyadev, (for short "the case) by the Court of learned 1st Additional Sessions Judge, Haridwar. By the impugned judgment and order, the appellant has been convicted under Section 302 IPC and Section 25 of the Arms Act, 1959 (hereinafter referred to as "the Act") and sentenced as hereunder:

"(i) Under Section 302 IPC, imprisonment for life & a fine of Rs.5,000/- In default of payment of fine to undergo imprisonment for a further period of five months.

(ii) Under Section 25 of the Act, rigorous imprisonment for two years and a fine of Rs.1,000/-. In default of payment of fine to undergo imprisonment for a further period of one month."

Since common question of law and facts are involved in both these appeals, therefore, the same are being taken up together and decided by this common judgment.

Briefly stated, according to the prosecution, on 22/23.06.2003, the deceased Maam Chand was asleep in the courtyard of his house alongwith other family members and PW2 Sunil their brother-in-law. In the night, the appellant alongwith one more person called the deceased Maam Chand and took him alongwith them. It was around 12:30 midnight. At a distance of about 100 meter, in the field of Mool Chand, appellant shot the deceased Maam Chand dead. When the appellant took the deceased alongwith him PW1 Sukh Lal and PW2 Sunil also woke up. They followed them and witnessed the killing. According to the prosecution, about 20 days prior to the incident, the appellant had taken a loan of Rs.10,000/- from the deceased, but he was not repaying it. A report of the incident was lodged on 23.06.2003, in the morning at 8:30 by PW1 Sukh Lal and a case under Section 302 IPC was lodged against the appellant. Inquest of the deceased was prepared at about 9:30 AM on the same day. Thereafter, post mortem of the deceased was conducted. According to the doctor, death was caused due to shock and hemorrhage, as a result of ante mortem firearm injury. On 30.06.2003, appellant was arrested. He confessed his guilt and recovered the country-made pistol and cartridges, by which, he killed the deceased Maam Chand. A separate crime under Section 25 of the Act was registered. Investigation was carried out and the charge sheets under Section 302 IPC and Section 25 of the Act were filed against the appellant. Cognizance was taken and the case was committed to the court of sessions for trial. On 06.08.2004, charges under Sections 302 IPC and Section 25 of the Act were leveled against the appellant, to which, he denied and claimed trial.

Prosecution in order to prove the case, examined as many as eleven witnesses, namely, PW1 Sukh Lal, PW2 Sunil, PW3 Omkar Singh, PW4 Sher Singh, PW5 Vijay Singh, PW6 Brahm, PW7 T.S. Rana, PW8 Arghendu Dey, PW9 Parminder Singh, PW10 R.K. Sharma and PW11 Rodas.

Appellant was examined under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code"). According to him, he has been falsely implicated in the case. Appellant did not adduce any evidence in his defence. After hearing the parties, the learned court below convicted and sentenced the appellant, as stated hereinbefore. Aggrieved, the instant appeals.

Heard learned counsel for the appellant, learned counsel for the State and perused the record.

Learned counsel for the appellant would argue that the appellant has been falsely implicated; FIR is delayed; there is no source of light; statements of PW1 Sukh Lal and PW2 Sunil are not reliable; recovery of country-made pistol has not been proved; recovery memo is not signed by the appellant; alleged recovery is made from the open place. Learned counsel would argue that the appellant ought to have been acquitted of the charge, but learned court below committed an error in convicting and sentencing the appellant.

On the other hand, learned counsel for the State would submit that it is a case of direct evidence. PW1 Sukh Lal is a very natural witness, who has seen the appellant killing the deceased. His statement has been supported by PW2 Sunil. Medical evidence supports the prosecution case. It is a case of death by firing. PW7 T.S. Rana proved the recovery of arms from the appellant. His statement has been corroborated by the statement of PW9 Constable Parminder Singh. There is no reason to falsely implicate the appellant. Hence, it is argued that the prosecution has been able to prove the case against the appellant and appeals deserve to be dismissed.

PW1 Sukh Lal is the first informant. According to him, on 22/23.06.2003, he and his brother Maam Chand were asleep in their house, below a guava tree. Their brother-in-law PW2 Sunil was also there. At about, 12:30 midnight, appellant alongwith one more person came to call the deceased Maam Chand. At that time, this witness and his brother-in-law PW2 Sunil also woke up. According to him, since deceased Maam Chand and appellant were drug addicts, they did not doubt their movements. Appellant took the deceased Maam Chand at a distance of about 100 meter in the field of Mool Chand. At this, this witness and PW2 Sunil doubted their activity and followed them. They saw that in the field of Mool Chand, appellant killed the deceased Maam Chand by firing at him. Hearing the sound of fire, many villagers reached at the spot. Next day morning, this witness went to lodge a report. He proved the FIR Ex.A1. According to him, some 20 days prior to the incident, appellant had taken a loan of Rs.10,000/- from the deceased Maam Chand but he was not repaying it. He also states that on the date of incident, his daughter was sick and he identified the appellant in the light of a lantern. PW2 Sunil in his examination-in-chief corroborates the statement of PW1 Sukh Lal.

PW3 Omkar Singh is a witness of inquest. PW4 Sher Singh is also the witness of taking into custody the plain and blood stained soil by the police. PW5 Constable Vijay Singh proved the chik FIR and the extracts of General Diary. PW6 Brahm did not support the prosecution case. According to him, nothing was recovered in his presence. PW7 T. Rana is the Investigating Officer. He has stated about the steps taken by him during investigation and proved the site plan of the place of incident. According to him, on 30.06.2003, appellant was arrested and he confessed his guilt. Appellant recovered the country-made pistol, live cartridges and a cartridge case from below a guava tree near his house. He proved the recovery memo Ex. A6. This witness also proved those articles and also states that the articles were sent for forensic examination.

PW8 Dr. Arghendu Dey conducted postmortem of the deceased. According to the doctor the cause of death was shock and hemorrhage due to ante mortem firearm injury.

PW9 Constable P.S. Rana also states about the recovery of country-made pistol and a cartridge case at the instance of the appellant. PW10 R.K. Sharma, Assistant Sub-Inspector, investigated the case under Section 25 of the Act against the appellant. He proved the site plan and other documents as well as the charge sheet in the case. PW10 R.K. Sharma is also the person, who prepared the inquest and other documents, by which, the dead body was sent for post mortem.

PW11 Rodas, Assistant Director, Forensic Science Laboratory, Agra has been cross examined. In fact, on 08.11.2013 the appellant was examined under Section 313 of the Code. Appellant desired to cross examine the forensic expert. Thereafter, PW11 Rodas was summoned. On 29.01.2013, PW11 Rodas was cross examined without examination-in-chief having been recorded.

Undoubtedly, under Section 293 of the Code, report of the Assistant Director, Forensic Science Laboratory may be read into evidence. According to Sub-Section (2) to Section 293 of the Code, the Court may, if it thinks fit, summon and examine any such expert as to the subject- matter of his report.

Examination of the witness, is regulated by the provisions of Indian Evidence Act, 1872. According to Section 138 of the Indian Evidence Act, 1872, witness shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, then if the party calling him so desires is reexamined. The statement of a witness in cross examination, without examination-in-chief having been recorded, is not complete examination of the witnesses. Such statement cannot be read into evidence.

From the testimony of PW1 Sukh Lal and PW2 Sunil, it appears, as if, in fact, they witnessed the offence having been committed before them. But, in view of the arguments, it requires little deeper scrutiny.

Both PW1 Sukh Lal and PW2 Sunil in their examination-in-chief have stated that when the appellant called the deceased Maam Chand, they woke up. According to them, they were sleeping outside the house, below a guava tree. Now, the question is as to how did PW1 Sukh Lal and PW2 Sunil woke up? Did appellant called the deceased by name? Or he uttered any words? If so what? If appellant did not utter any words to call the deceased, what sound made PW1 Sukh Lal and PW2 Sunil to wake up? In fact, PW1 Sukh Lal in his statement recorded on 04.01.2005, in second paragraph, would say that he had seen the appellant approaching their house. He had come not from the eastern side but from the western side. This statement, is contrary to what PW1 Sukh Lal has stated in his examination-in-chief. According to his statement, in his examination-in-chief, PW1 Sukh Lal woke up when the deceased was called by the appellant. What was the occasion for PW1 Sukh Lal to remain awake at that midnight hours, so as to see the appellant approaching him? Why PW1 Sukh Lal did not question, as to why, at that midnight hour, appellant approached their house and more particularly, as to who, was the other person accompanying the appellant? There is nothing clear about it. PW2 Sunil in page 2 last paragraph would say that when appellant took the deceased alongwith him, they did not interrupt them. Because, they were relatives. In the next line, PW2 Sunil has stated that he made PW1 Sukh Lal woke up and told PW1 Sukh Lal that the appellant took the deceased with him. Now, if PW1 Sukh Lal had seen the appellant approaching to his house alongwith some other person and taking the deceased alongwith them, what was the need for PW2 Sunil to tell PW1 Sukh Lal that the appellant had taken the deceased alongwith them. As stated, according to PW1 Sukh Lal, he also woke up when appellant took the deceased alongwith him. But, PW2 Sunil has stated that he woke up PW1 Sukh Lal and told him that the deceased was taken away by the appellant. This is great contradiction. It is significant. It is material. It creates great dent in the reliability of the statements of PW1 Sukh Lal and PW2 Sunil.

What happened when appellant shot the deceased dead? According to the PW1 Sukh Lal and PW2 Sunil, many villagers reached at the spot. PW1 Sukh Lal says that seeing the incident, he felt unconscious and he came back to his house and regained his consciousness after about 2-3 hours. When he regained consciousness, he was in his house in a cot. PW2 Sunil also at page 2 paragraph 2 would say that whole night he and PW1 Sukh Lal guarded the dead body. They remained seated there. None of the villagers was with them. Although, few lines thereafter, PW2 Sunil says he was also feeling dizziness. He came back to his house and he was moving between the dead body and his house. This is all not believable at all and not inspiring confidence. On the one hand, PW2 Sunil says that only he and PW1 Sukh Lal were with the dead body whole night. On the other hand, PW1 Sukh Lal says that after witnessing the incident he felt unconscious and after 2-3 hours, when he regained consciousness, he was at his home on a cot. PW2 Sunil also speaks that he also fell dizziness and he was moving from his house to the place of incident and back to his house and none of the villagers were there. If the murder occurred at midnight and villagers came, why none was present there? If PW1 Sukh Lal felt unconscious and he was at his home, it belies the statement of PW2 Sunil that he and PW1 were with the dead body whole night. When were the villagers informed?

According to the chik FIR, it was lodged at 08.30 in the morning. PW10 R.K. Sharma prepared the inquest, which, he proved. It is Ex. A14, according to it, the first person, who informed about the dead body was Khoob Chandra, Chokidar (watchman). He has not been examined. PW1 Sukh Lal says that he alongwith Chokidar went to lodge the report. He has also stated that the Chokidar came to know about the incident in the morning on his own. If the incident occurred at midnight, why Chokidar came to know about in the morning? If the villagers came in the night, why the matter was not reported to the Police immediately thereafter? PW3 Omkar Singh is a witness to the inquest. According to him, in the morning, they heard the noise in the village and then came to know that the deceased had died. He has not stated that he came to know about the incident in the midnight. None of the villagers is examined to support the statements of PW1 Sukh Ram and PW2 Sunil that in the midnight at 12:30, they had seen that the deceased dead. Statements of PW1 Sukh Ram and PW2 Sunil are not inspiring confidence.

For the delay in lodging FIR, on behalf of the prosecution, the statement of PW2 Sunil has been referred. When he says that there was no means of transport, therefore, report could be lodged in the night. According to the chik FIR, the report was lodged at 8:30 in the morning. The distance from the place of incident is recorded 8 km from the Police Station. If prosecution case is to be believed, it means, in the midnight, appellant shot dead the deceased. All villagers waited till 8:30 AM. Why PW1 Sukh Ram and PW2 Sunil did not take the deceased in the midnight itself to the nearest hospital to see any chance of recovery? Who told them that the deceased had died? As stated, none of the villagers has been examined. According to the inquest, Khoob Chandra Chokidar reported about the dead body to the police. Khoob Chandra has not been examined. Even according to PW1 Sukh Ram, Khoob Chandra came to know about the incident in the morning. It all doubts the prosecution case.

Source of light is very important in the instant case. In the case of Ashoksinh Jayendrasinh Vs. State of Gujarat, (2019) 6 SCC 535, Hon'ble Supreme Court in an incident which occurred at 9:00 pm in the late night have held that "in the absence of any evidence as to the light aspect, the possibility of identifying the accused in the darkness of the agricultural field of the complainant, particularly at 9.00 p.m. becomes doubtful. It is also to be pointed out that there is no evidence as to whether there was moonlight on 23.11.1997 and complainant has also not stated that he has identified the appellant or other co-accused with the help of moonlight. In the absence of evidence as to the availability of sufficient light, the identification of the accused and the overt act attributed to the appellant becomes doubtful."(Para 12)

In a village the person may identify some acquaintance ever in the dim light. In the case of Ram Gulam Chaudhary and others Vs. State of Bihar, (2001) 8 SCC 311, Hon'ble Supreme Court, inter alia, held as hereunder:

"34....................It must be remembered that the incident had taken place in a village. As has been held by this Court in the case of Kalika Tiwari v. State of Bihar (1997) 4SCC 445 : 1997 SCC (Cri) 600 the visibility capacity of urban people who are acclimatized to fluorescent lights or incandescent lamps is not the standard to be applied to villagers whose optical potency is attuned to country-made lamps. It has been held that the visibility of villagers is conditioned to such lights and hence it would be quite possible for them to identify men and matters in such light. Also the appellants were from the same village and were known to PW3 and PW4."

It is not the case that it was a full moon night. In the FIR, source of light is not indicated. Investigation Officer has not prepared the site plan from where the deceased was allegedly taken by the appellant. Why? PW1 Sukh Ram and PW2 Sunil have stated that there was a lantern in the house. PW7 T.S. Rana, Investigating Officer at page 8 of his statement admits that it was told to him that the appellant was identified in the light of lantern. But, according to him, he has not recorded it in the statements of the witnesses under Section 161 of the Code. This statement of PW7 T.S. Rana may be a statement based on his memory. PW7 T.S. Rana has not seen any lantern. He has not taken the lantern into custody. Even he has not been shown any lantern by PW2 Sunil. It has been stated by PW7 T.S. Rana in his statement at Page 11 Paragraph 2.

If in a village, a villager utters a few words, in the midnight perhaps he may be identified by another villager. Voice and gait may also help identification in such cases. But here, the prosecution has not shown or proved that appellant uttered any word to call the deceased. Investigating Officer did not prepare the site plan of the place, from where, allegedly, the deceased was taken away. There is no mention of any source of light in the FIR. It is not mentioned even in the statements of the witnesses recorded under Section 161 of the Code. Investigating Officer has not seen any lantern. He has not taken it into custody. Incident allegedly occurred in the midnight in the field, where there were sugarcane grown, up to two to two and a half feet. Absence of source of light doubts the reliability of the statements of PW1 Sukh Ram and PW2 Sunil. Even otherwise also, if some person takes another person at midnight from the house and walks away, how PW1 Sukh Ram and PW2 Sunil could simply follow them without raising any alarm? Why they let them go deep into forest.

The related issue is what was the place of incident? According to the site plan, which is Ex. A4, it is a field of Pradeep. Whereas, according to PW1 Sukh Lal and PW2 Sunil, the deceased was killed in the field of Mula @ Mool Chand. Investigating Officer PW7 T.S. Rana, in page 8 of his statement has stated that the dead body was found in the field of Pradeep. According to him, PW1 Sukh Lal had told it to him that the incident occurred near the Mool Chand's field. When asked about it, in page 2 paragraph 2, PW1 Sukh Lal has stated that he can't say as to why in the site plan Investigating Officer did not show the place of incident in the field of Mula @ Mool Chand. If inquest is to be seen, in it, the dead body has been shown in the field of Kuldeep. Now, in the site plan Ex. A4, there is no field of Kuldeep. It is also doubtful.

According to the prosecution, a country-made pistol, cartridge and cartridge case was recovered by the appellant on 30.06.2003. PW7 T.S. Rana, Investigating Officer and PW9 Constable Parminder Singh have stated about it. Recovery memo is on record. Admittedly, recovery was made from some open place, which was not within the exclusive possession of the appellant. Recovery memo has not been signed by the appellant. Why? There is no independent witness to it? PW6 Brahm has not supported the prosecution case. Therefore, this Court is of the view that prosecution has not been able to prove that any country-made pistol or cartridge was recovered from the appellant. Forensic Science Laboratory report also does not support the prosecution case. It is not established, as to when and by whom, arms were sent for forensic examination. It is not established that from the alleged country made pistol, the deceased was shot. This also does not help the prosecution.

In view of the foregoing discussion, this Court is of the view that the prosecution has not been able to prove the charges under Section 302 IPC and Section 25 of the Act, against the appellant. Learned Court below committed an error in convicting and sentencing the appellant. Accordingly, the Court is of the view that the appeals deserve to be allowed.

Both these appeals are allowed. Impugned judgment and order dated 14.02.2013, passed in Sessions Trial No. 272 of 2004 and Sessions Trial No. 273 of 2004, State Vs. Satyadev, by the Court of learned 1st Additional Sessions Judge, Haridwar is set aside.

Appellant is in jail. He be released forthwith, if not wanted in any other case subject to his furnishing personal bonds and two sureties, each of the like amount to the satisfaction of the court concerned under Section 437 A of the Code.

Let a copy of this judgment along with Lower Court Record be transmitted to the Court below for compliance.