Shiv Kumar Sahu & Others @APPELLANT@Hash State Of Uttarakhand

Sudhanshu Dhulia, J

These three appeals arise out of the judgment and order dated 05.08.2015 passed by the learned District and Sessions Judge, Nainital in Sessions

Trial No.188 of 2013.

The two appeals i.e. Criminal Appeal No.270 of 2015 and Criminal Jail Appeal No.03 of 2016 are of same accused/appellant, namely, Shiv Kumar

Sahu against the judgment and order dated 5.08.2015 passed by the learned District and Sessions Judge, Nainital in Sessions Trial No.188 of 2013,

whereby the accused/appellant Shiv Kumar Sahu has been convicted under Section 307 IPC and has been sentenced for life imprisonment with a fine

of Rs.1,00,000/- (Rupees One Lakh Only). It appears that Criminal Jail Appeal No.03 of 2016 has been filed due to inadvertence.

Criminal Appeal No.380 of 2015 has been filed by another co-accused, namely, Michal James challenging the judgment and order dated 5.08.2015

passed by the learned District and Sessions Judge, Nainital in Sessions Trial No.188 of 2013, whereby the accused/appellant Michal James has been

convicted under Section 307 IPC read with Section 120B IPC and has been sentenced for rigorous imprisonment for a period of seven years with a

fine of Rs.25,000/- (Rupees Twenty Five Thousand Only).

Smt. Sunita Sahu (the victim in this case), was married to Sri Shiv Kumar Sahu in the year 2009, at Allahabad. Subsequently thereafter from the

records available, it appears that the two were living separately. Sri Shiv Kumar Sahu was working in Delhi as a driver in a private school, whereas

Ms. Sunita Sahu was residing with her sisters and mother at Nevada, Allahabad.

On 14.07.2013, the victim received a phone call from her husband Shiv Kumar Sahu asking her to reach Delhi on 15.07.2013. She was also

cautioned that this should not be told to anyone. He promised her that from now onwards the two will stay together and everything will be all right in

their life. Reposing trust on her husband, the victim left Allahabad and reached Delhi on 15.07.2013, as told. There Ms. Sunita Sahu met her husband

at the Delhi railway station and then for a few days the two stayed together in Delhi. On 28.07.2013, her husband Shiv Kumar Sahu along with his

friend Michal James planned a holiday for Nainital and the three left for Nainital in a public bus. They reached Nainital at about 7-7.30 in the morning

of 29.07.2013 and checked into a hotel called “Ashoka†at Tallital, Nainital. The next day, they roamed around Nainital, seeing various places of

tourist interest, and then checked out on 31.07.2013 in the morning. After leaving the hotel, they went to see the local Zoo, and other places of interest

and returned to the Bus Stop at Tallital between 7:30 PM to 08:00 PM in the evening. Their programme was to leave for Dehradun by a night bus, but

instead of boarding a bus, her husband and Michal James, took her for a walk on the Bhowali road, on pretext that they must visit a temple there. By

this time, darkness had set in and it was around 8 O’ clock or so in the night. Her husband’s friend Michal James was walking 10 to 12 steps

ahead of them and the victim was walking along with her husband. At a lonely place, her husband pushed her down from the mountains. Thereafter

both her husband and his accomplice Michal James ran away from the spot. She fell about 100 meters down the hill, but then luckily got stuck on a

branch of a tree and then managed to pull herself out and reached the road side. After she reached the motor road, she raised an alarm. Thereafter

police arrived and then she was taken to the local B.D. Pandey Government Hospital, at Nainital, where she was given treatment. The victim formally

lodged the first information report against her husband and his accomplice Michal James, while she was being treated in the hospital. The above, in

short, is the story of the prosecution, as per the FIR, and the statement of PW1, i.e. the victim.

Since the police had arrived at the spot and it was the police who took her first to the Hospital, and on way it also managed to collect the

information from the Hotel staff and other reliable sources and at the relevant time since they had also an information from one of the Hotel staffs

who had seen Shiv Kumar Sahu and Michal James boarding a bus to Haldwani, they sent this information to the relevant police check posts. The

culprits were caught at Kathgodam as they alighted from the bus. They were brought to Nainital, where they were formally arrested. The police after

its investigation filed the charge-sheet. The matter was committed to the Sessions Court where, charges were framed against the accused/appellants

under Sections 307 IPC and 120B IPC.

The prosecution has examined as many as 10 witnesses in order to establish its case. There are no defence witnesses.

The main witness here is PW1 who is the injured victim and the wife of the main accused Shiv Kumar Sahu. In her examination-in-chief, she states

that when she was brought to B.D. Pandey Government Hospital, Nainital and was being given treatment, she wrote the first information report

herself as she is educated and passed her high school. The written copy of the first information report is before this Court as Exhibit Ka-1, where she

narrates the incident with clarity and precision, as to how she was called to Delhi first by her husband and thereafter brought to Nainital and then

pushed from the ridge. She states that Xâ€"Ray was performed and treatment was given to her at B.D. Pandey Government Hospital, Nainital and

after two to three days of remaining admitted in B.D. Pandey, Government Hospital, Nainital, she was referred to the higher center i.e. Soban Singh

Jeena, Hospital at Haldwani. After a few days, she was discharged from the Hospital.

She further states that her father passed away in the year 2002. Out of four sisters, she is the third and that she has one younger sister who is yet

to be married. Her younger brother stays with her and her mother at Allahabad. She also states in her examination-in-chief that the brother of Shiv

Kumar Sahu is threatening her and pressurizing her to change her stand in the court.

Although the examination-in-chief of this witness was done on 14.03.2014, the defence sought adjournment for the cross-examination which was

granted and ultimately the cross-examination was done after more than three months i.e. on 23.06.2014. Even after more than three months, in her

cross-examination, the victim states nothing which may cast even an iota of doubt on her statement. She is firm and categorical on the stand which

she had taken right from the beginning that her trust has been betrayed that she was called to Delhi first by her husband and thereafter she was taken

to Nainital where she was thrown from the ridge by her husband, who clearly intended to kill her.

In her examination-in-chief, the victim also says that although she was married to Shiv Kumar Sahu in the year 2009, they have no child out of the

wedlock. She also reveals that before their marriage, Shiv Kumar Sahu was in a relationship with another woman. His behaviour towards her right

from the beginning was rude and most of the time after her marriage, she stayed in her “maika†(i.e. maternal house), with her mother and

sisters.

A specific question was put to her by the court, to which she replied that on 31.07.2013 when she was walking alongside her husband i.e. accused

Shiv Kumar Sahu, it was the accused Shiv Kumar Sahu who had pushed her. On being questioned by the defence, she replies that in the fall she

sustained multiple injuries. Her collar bone was fractured which is evident from the X-Ray report and from the evidence of the Doctor as well. She

received injuries on her chest, legs and on various other parts of the body. Then she states that she somehow managed to climb up, when she met a

police constable who in turn called 2 & 3 police constables to the spot. The one with whom she met was Constable Bhanu Pratap Auli, who was on a

motorcycle. Thereafter she was taken in the Jeep to the Hospital.

PW 2 is the Doctor Anirudh Gangola, who at the relevant time was on duty at B.D. Pandey Government Hospital, Nainital. He states in his

examination-in-chief that he was posted at B.D. Pandey Government Hospital, Nainital on 31.07.2013 and at about 8:40 pm one Smt. Sunita Sahu

aged 22 years W/o Shiv Kumar Sahu R/o House No.77 Gali No.8 Haiderpur, Delhi came with Constable Bhanu Pratap Auli for treatment. The

Doctor noticed that her hair, clothes, hands etc, were wet and he also noticed that mud and dry leaves were stuck all over her body. The body

temperature of the victim was also much below normal. On further examination, the Doctor noticed a contusion on the left side of her chest and there

was difficulty in the movement in her left shoulder and (in her X-Ray, it was noticed that she had fractured left collarbone). There were contusions on

her right knee and abrasion on other knee as well. She was complaining of pain on the right side of her cheek.

According to the doctor, injuries nos. 1 to 4 should have been caused by a blunt object. Injuries were fresh and he referred for further examination

to an Orthopaedic Surgeon. Injury no. 1 was later detected to be a fracture in her collar bone which was detected after the X-Ray is done, which is a

grievous injury.

The cross-examination of this witness was also deferred and was done on 26.07.2014. Nothing has come out in his cross-examination, which may

give a benefit or which may weaken the case of the prosecution.

Sri Bhanu Pratap Auli was the constable who was examined as PW3 on 15.07.2014. In his examination-in-chief, he says that on 31.07.2013 he

was on duty at Tallital. When he reached Bhowali Road, he saw a woman lying on the roadside in an injured condition and when being questioned, she

gave her name as Smt. Sunita Sahu R/o Allahabad. Thereafter, this witness says that on instruction of the SHO, he and another Constable Sanjay

Kumar took the injured to B.D. Pandey, Hospital, Nainital. The victim had told him that she was thrown from the mountain by her husband Shiv

Kumar Sahu and his friend Michael James, with intention to kill her. This witness was also cross-examined but nothing has come out in the cross-

examination which may cast any doubt on this witness.

PW4 Harendra Singh Bora and PW5 Harish Fartyal are the employees of the Hotel where the victim along with her husband and his accomplice

had checked in on 29.07.2013, and where they stayed for two nights. Both of these witnesses recognized the victim as well as the accused. They also

identified the signatures of the accused Shiv Kumar Sahu along with the ID which he had given at the time of checking in the Hotel. The accused

introduced the victim as his wife and other one as his brother. The testimony of these two witnesses is absolutely important as it corroborates with the

case of the prosecution, as to the timing of the incident. The fact that immediately thereafter the incident, at about 8.30 to 8. 40 pm, the two accused

boarded the bus for Haldwani, which was seen by PW4 Harendra Singh Bora, is important. It has also come in the evidence that Ashoka Hotel is

very near the Tallital Bus Station and nobody has questioned that PW4 Harendra Singh Bora had not seen the accused boarding the bus to Haldwani.

It was on their information that the accused were apprehended at Kathgodam, and taken back to Nainital where they were formally arrested. PW 5

had also gone with the police party to “Kathgodamâ€​ where the accused were identified by him as they alighted from the bus.

PW6 Raj Kumar is the person who wrote the FIR and PW7 Basant Lal Arya is the conductor of the bus, who has also supported the case of the

prosecution story.

PW8 Dr. R.K. Verma is the Radiologist who has confirmed that on radiological examination it was found that the victim’s collar bone was

fractured.

PW9 Uttam Singh, In-charge Inspector is the Investigating Officer. He in his examination-in-chief says that he was on a patrol duty on 31.07.2013

and when he along with other companions went to Bhowali Road, he saw the victim. Thereafter he called other constables and the victim was taken

to the Hotel first and then to the Hospital. Later taking one of the employees of the Hotel i.e. PW5 Harish Fartyal, he went to Kathgodam and

apprehended the culprits.

Learned counsel for the appellant Sri Narendra Bali here points out that there is a discrepancy between the statements of Sri Bhanu Pratap Auli

(PW3) and Uttam Singh (PW9) as both of them says that they are the ones who first spotted the victim.

Actually there is no discrepancy. It was PW3 who had first spotted the victim. Later PW9 also reached the spot. Even if it is a discrepancy, it is

extremely minor, and considering the strength of the overall prosecution evidence, no benefit of this alleged “discrepancy†can be given to the

accused/appellants.

PW10 Sanjay Kumar Pandey is the Sub Inspector who is a formal witness.

What is an extremely relevant piece of evidence here is the statement of the victim (PW1). The statement of the victim throughout inspires

confidence. There is absolutely no discrepancy in her statement. She is educated and under the most unfortunate of circumstances still showed

courage. She narrates in detail the unfortunate circumstances she was put in, and the betrayal at the hands of her husband, who tried to kill her. Even

though her cross-examination was deferred for three months, she sticks to her statement. There is no discrepancy in her statement in spite of her

being continuously threatened by the brother of the accused. Moreover, her statement is corroborated by the statements of other witnesses and other

circumstances.

Her statement is well corroborated with medical evidence and the statements of other witnesses, and most importantly the conduct of the two

accused.

It is a case which the prosecution has established beyond any reasonable doubt!

As already stated above, the most important testimony in this case is that of the injured witness i.e. PW1. The testimony of an injured witness is

given a special status in criminal law. The very fact that the injury has been caused to the witness is a guarantee of her presence at the scene of the

crime, and because she is an injured witness, she will not want to let her actual assailant or the accused to go unpunished. It is therefore that the

deposition of an injured witness has to be relied upon unless there are very strong grounds for rejection of this evidence on the basis of major

contradictions. This is a settled law on the matter recently reiterated by the Hon’ble Apex Court in the case of Baleshwar Mahto and another vs.

State of Bihar and another, reported in (2017) 3 SCC 152. The same view has also been reiterated by the Hon’ble Apex Court in the case of

Rajagopal vs. Muthupandi Alias Thavakkalai and others, reported in (2017) 11 SCC 120.

The defence case is that on 31.07.2013, when the three returned to the “Tallital†bus station, the victim went missing. They searched for her,

but in vain. When they went to the “Tallital†Police Station to lodge their report, they were arrested. They deny that they went to Kathgodam. To

the contrary, however, there is enough evidence with the prosecution, apart from the testimony of PW1, that both the accused actually ran away from

the spot. PW5 Harish Fartyal, the employee of the hotel had deposed before the court that he had gone with the police party and the accused persons

were arrested at Kathgodam, when they were alighting from the bus.

As far as role of Michal James is concerned, the learned counsel for the appellant Sri Sandeep Adhikari would argue that no active role has been

assigned to Michal James. Learned counsel for the appellant would also argue that even the statement of the victim nowhere assigns an active role to

the appellant (Michal James). The appellant (Michal James) admits his presence and he also admits that he had travelled with Shiv Kumar Sahu and

his wife from Delhi to Nainital and had checked in the Hotel at Nainital along with them and stayed in the room, but has nothing to do with the crime

etc.

It is true that the victim has not assigned any active role to Michal James inasmuch as he is not the one who had thrown her from the mountains.

All the same, what has to be seen is the entire sequence of events. It was Michal James who had accompanied Shiv Kumar Sahu and his wife from

Delhi to Nainital and stayed in the same room. He is a close associate and confidant of the main accused Shiv Kumar Sahu. What is most important is

his conduct immediately after the incident. He ran away from the place of incident along with the main accused and boarded the bus for Haldwani and

was apprehended by the police later at Kathgodam, along with the main accused. Therefore, the role of Michal James in the alleged conspiracy

cannot be denied. Although the victim also does not say that Michal had pushed her, yet she clearly states in her examination-in-chief that both the

accused brought her to Nainital and after the incidence both the accused ran away from the spot, assuming that she is dead. Therefore, the culpability

of Michal James cannot be denied.

Therefore we uphold the conviction of both the accused. The only question is of sentence?

While sentencing, both the mitigating and aggravating circumstances have to be considered. The accused Michal James had no active role, yet it

does not mean that he is innocent. He is still an accomplice in crime.

This Court has been informed by the learned counsel for the appellant that the accused Michal James was granted bail by this Court on

08.12.2016, but he could not be released as he could not arrange for his sureties.

Considering the role of the accused Michal James, and the fact that he has already undergone more than five years of imprisonment, we reduce

his sentence to the period already undergone and order that he shall be released from the jail. The period of sentence undergone shall also include the

term of sentence, which he otherwise was liable to undergo in default of fine.

Appellant Shiv Kumar Sahu is again not a hardened criminal, though the main accused before us. We deem it fit that instead of life imprisonment,

a rigorous imprisonment for 10 years would meet the ends of justice in his case. We therefore convert the sentence of life imprisonment to 10 years of

Rigorous Imprisonment in the case of Shiv Kumar Sahu. He shall also deposit the fine of Rs.1,00,000/- (Rupees One Lakh Only). In case of default in

payment of fine, the appellant Shiv Kumar Sahu, shall undergo imprisonment for a further period of six months.

In view of the above observations, appeals are partly allowed. The judgment and order dated 05.08.2015 passed by the District and Sessions

Judge, Nainital is modified to the extent that sentence of life imprisonment awarded by the trial court to the appellant Shiv Kumar Sahu is reduced to

ten years of rigorous imprisonment, and a fine of Rs. 1,00,000/-(Rupees One Lakh Only) in default of which he shall undergo imprisonment for a

period of six months. The sentence awarded by the trial court to the accused/appellant Michal James for a period of seven years is reduced to the

period already undergone.

Michal James shall be released forthwith in case he is not wanted in any other crime and Shiv Kumar Sahu shall undergo the remaining period of

his sentence.

Let a copy of this judgment along with the lower court records be sent back to the court concerned for onward compliance.