State of Uttarakhand v. Ranjeet Prasad and Others

Reserved Judgment

I N THE HI GH COURT OF UTTARAKHAND AT NAI NI TAL

JUSTI CE SHRI MANOJ KUMAR TI W ARI AND JUSTI CE SHRI VI VEK BHARTI SHARMA 4 Decem ber , 2 0 2 4

Gov er nm ent Appeal No.19 9 of 2 0 1 5

State Of Uttarakhand

…Appellant

Ver su s

Ranjeet Prasad & Ors.

…Respondents

Pr esen t :- Mr. K.S. Bora, learned Deputy Advocate General assisted by Mr. J.P. Kandpal, learned Brief Holder for the State-appellant. None for the respondents

JUDGMENT: (per Shri Vivek Bharti Sharma, J.)

This appeal preferred by the State under Section 378(3) of The Code of Criminal Procedure, 1973 (in short, Cr.P.C.), is filed against the judgment/ order dated 27.05.2015 passed by learned Sessions Judge, Chamoli (Gopeshwar) in Sessions Trial No.14 of 2010 "State vs. Ranjeet Prasad & Ors.", whereby the said court acquitted the respondents from the charge of offence punishable under Sections 302, 201 and 120-B of The Indian Penal Code, 1860 (in short, IPC).

2.

Factual matrix of the case is that PW1 Jagdish Prasad gave a complaint (Ext.Ka-1) to Naib

Tehsildar, Tehsil Tharali, District Chamoli stating therein that on 01.03.2010 at about 11: 00 a.m. Chandra Mohan Prasad, Dinesh Chandra, the respondent nos.2 and 3 came to his house and asked his nephew Jaiveer Prasad to come along with them to celebrate Holi in Kasbinagar; that, his nephew Jaiveer Prasad went with them to Kasbinagar to play Holi; that, at around 02: 00 pm, he got the information that the respondents have killed his nephew and have thrown him into Koya-Udiyar gorge (gadhera); that, on this information he reached at the spot and saw that his nephew Jaiveer was lying dead.

3.

On the basis of this report (Ext.Ka-1), case crime no.02/ 2010 was registered at Revenue Police Patwari Chowki Devrada, Tehsil Tharali, District Chamoli against the respondents Ranjeet Prasad, Chandra Mohan and Dinesh Chandra under Sections 302, 201 and 120-B of IPC; that, thereafter the Investigating Officer prepared the site-plan and the sketch of the dead body; that, the inquest report was also prepared allegedly in presence of Jagdish Prasad, Jaishankar Tamta, Govind Prasad, Pushkaranand and Hari Ram; that, thereafter the body of Jai Veer Prasad was sent for post-mortem and the post-mortem report (Ext.Ka-4) was prepared by the doctors who conducted autopsy; that, during the course of investigation, the seizure memo (Ext.Ka-3) of the stick allegedly used in the murder of the deceased was recovered.

4.

On completion of investigation, charge-sheet

(Ext.Ka-19) was filed against the respondents, on which cognizance was taken by the court concerned.

5.

On 28.01.2011, charges were framed against the respondents under Sections 302, 201 and 120-B of IPC to which they pleaded not guilty and claimed to be tried.

6.

To prove its case, the prosecution examined total witnesses viz. PW1 Jagdish Prasad, complainant, PW2 Ansuya Prasad, PW3 Smt. Hima Devi, PW4 Pratap Ram, PW5 Dr. Pawan Divedi, Medical Officer, PW6 Pushkaranand, PW7 Jagdish Ram, PW8 Dayali Ram, PW9 Govind Ram, PW10 Hari Mohan Khanduri and PW11 Keshwanand Joshi.

7.

Thereafter, the statements of the respondents were recorded u/ s 313 of Cr.P.C.

8.

The Trial Court, on perusal of evidence and upon hearing the parties, acquitted the respondents vide the impugned judgment and order dated

27.05.2015. Hence, this appeal by the State.

9.

Learned State Counsel would submit that the judgment and order passed by the trial court is based on conjectures and surmises and is therefore unsustainable in the eyes of law.

¶10He would further submit that the trial court has acquitted the respondents on the ground that the PW2 Ansuiya Prasad, PW3 Smt. Hima Devi, PW4 Pratap Ram, PW7 Jagdish Ram and PW8 Dayali Ram who were

the important witness of the case did not support the prosecution case and they were turned hostile but the court failed to consider the fact that these witnesses in their statements recorded u/ s 161 of Cr.P.C. had fully supported the contents of FIR and the prosecution case.

¶11He would further submit that this was a case of direct evidence against the respondents for the offence of murder and initially prosecution case rested on the eye-witness account of PW7 Jagdish Ram, who in his statement u/ s 164 Cr.P.C. dated 07.03.2010, had stated that on the day of Holi i.e. on 01.03.2010 at about 2: 00 pm he was present in the verandah of the house of Bachi Ram to celebrate Holi; that during these celebrations the respondents started quarreling with the deceased Jai Veer and the respondent Ranjeet Prasad hit the deceased Jai Veer on his head thrice with stick while other respondents Dinesh and Chandra Mohan were holding him and thereafter the respondents took the deceased to Koya Udiyar gorge; that, he asked them not to quarrel but the respondents threatened him because of which he did not follow the respondents upto Koya-Udiyar gorge.

Learned State Counsel would further submit that, however, this witness when examined in the trial court as PW7 Jagdish Ram turned hostile. In his examination-in-chief, he did not support the case of prosecution.

He would submit though the sole eye-witness

of this incident had turned hostile in the trial court but now the case of the prosecution is otherwise also proved on the basis of circumstantial evidences, which is proved beyond doubt against the respondents.

¶12Heard submissions of learned State Counsel and perused the entire record.

¶13At the very outset, it would be apposite to remind ourselves the law on the basis of which the prosecution can nail the case against the accused on the basis of circumstantial evidence. It is well settled law that where the case rests squarely on circumstantial evidence the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. In other words, there must be a chain of evidence so much complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.

¶14In Sh ar ad Bir dh ich an d Sar da v. St at e of Mah ar ash t r a, ( 1 9 8 4 ) SCC 1 1 6 , the Hon'ble Supreme Court laid down the five golden principles i.e. the panchsheel of the proof of a case based on circumstantial evidence. Relevant paragraph of this judgment is quoted as under: - "153. A close analysis of this decision would show that the following conditions must be fulfilled before a case

against an accused can be said to be fully established.

(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra where the following observations were made:

Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.

(3) the circumstances should be of a conclusive nature and tendency,

(4) they should exclude every possible hypothesis except the one to be proved, and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground

for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

¶15On perusal of the record, the circumstantial evidences which this Court could extract against the respondents are as under:

(i) The Last Seen Eviden ce

The FIR lodged by PW1 Jagdish Prasad, paternal uncle of the deceased, in which he stated that it was the day of Holi i.e. 01.03.2010 when at about 11: 00 am the respondents Chandra Mohan and Dinesh had come at his house where his nephew i.e. the deceased was present and these respondents took his nephew with them to Kasbinagar to celebrate Holi.

(ii) PW1 Jagdish Prasad was informed at about 2 pm on the same day i.e.

01.03.2010 by Pushkaranand that the respondents have killed his nephew Jaiveer Prasad and have thrown him down the hill into a gorge.

(iii) When PW1 Jagdish Prasad reached at the spot he saw that all the three respondents were present there and there were bloodstains on their clothes.

(iv) The seizure memo of the bloodstained crooked stick of Mehal tree (Ext.Ka-3) recovered

about 10-15 metres away from the spot where the dead body of Jaiveer Prasad was found on

04.03.2010 at 12: 30 on the pointing of the witness Govind Ram.

(v) The statement of PW7 Jagidsh Ram recorded u/ s 164 Cr.P.C. before the Judicial Magistrate Karnaprayag on dated 07.03.2010 wherein it was stated that on the fateful day i.e. on 01.03.2010 at about 2: 00 pm on the date of festival of Holi he was in the verandah of Bachi Ram and they were celebrating Holi; that, during celebrations the respondents started quarreling with deceased Jaiveer and respondent Ranjeet hit Jaiveer on his head thrice with a stick and the respondents Dinesh and Chandra Mohan were holding Jaiveer at that time; that, thereafter they took him to Kuya Udiyar.

¶16In view of the law enunciated by the Hon'ble Supreme Court in Sh ar ad Bir dhich an d Case (supra), now this Court has to see whether the chain of these circumstantial evidences, if conclusively proved, is so complete that it could give rise to the inevitable conclusion that the alleged offence of murder was committed by the respondents.

¶17PW1 Jagdish Prasad in his statement recorded before the Trial Court stated that on the fateful day of 01.03.2010 the respondent Dinesh and Chandra Mohan came to his house and took the deceased Jai Veer Prasad to Kasbinagar for celebrating

Holi.

This statement of PW1 Jagdish Prasad is diametrically opposite to Section 164 statement of PW7 Jagdish Ram (Ext.Ka-5) recorded by the Magistrate, wherein PW7 stated that on the fateful day, the incident took place in the verandah of the house of Bachi Ram where the respondents quarreled with the deceased Jai Veer Prasad and respondents Ranjeet hit the deceased thrice on his head with stick while other respondents were holding the deceased. Though Jagdish Ram had not supported the prosecution case and had denied giving any such statement u/ s 164 Cr.P.C. i.e. Ext.Ka-5 but it is important to note that Ext.Ka-5 is an admitted document of the prosecution and contents of it is inconsistent with the testimony of other witness i.e. PW1 Jagdish Prasad relied upon by the prosecution. Jagdish Ram in the statement u/ s 164 Cr.P.C. had taken the name of all the three respondents while PW1 Jagdish Prasad in his examination-in-chief deposed that respondents Dinesh and Chandra Mohan had come at his house and had taken his nephew forcibly with them to Kasbinagar to celebrate Holi.

In view of the above, t h e last seen t heor y giv en by PW 1 Jagdish Pr asad t h at befor e t he deat h of h is n eph ew Jaiveer Pr asad t h e r espon den t s had t ak en t h e deceased w it h t h em for celebr at in g Holi t o Kasbin agar , is dou bt fu l. Thus, it can be safely inferred that the first link of circumstantial evidence submitted in argument by the

state Counsel that few hours before the incident the deceased was seen last in the company of the respondents is not conclusively proved so as to prove the guilt of the respondents.

¶18The second circumstantial evidence relied upon the State Counsel is that Pushkaranand informed PW1 Jagdish Prasad that his nephew has been killed by the respondents. However, when Pushkaranand was examined in the Trial Court as PW6, he did not state this fact, rather he did not support the prosecution story at all. Ther eaft er , t h is w it n ess w as cr oss-ex am ined by t h e pr osecu t ion w it h t h e per m ission of t h e Cou r t an d in t h e cr oss ex am in at ion h e st at ed t h at h e got t h e in for m at ion of t h e deat h of Jaiveer at 8 -9 am nex t day. Th er efor e, second alleged cir cum st an t ial eviden ce is also n ot con clu sively pr oved.

¶19Third circumstantial evidence relied upon by the State Counsel is that when PW1 Jagdish Prasad reached at the spot where the dead body was recovered, he found the respondents standing there and their clothes were stained in blood.

However, this Court is of the considered view that this circumstantial evidence is not conclusively proved from the ample evidence placed on record, which are contradictory with each other. The inherent contradiction is that PW10 Hari Mohan Khanduri, Naib Tehsildar who had reached at the spot did not depose that the respondents were there at the spot when he

reached there. If at all the clothes of the respondents were stained in blood of the deceased then why no such clothes were seized by the I.O. is important point which not only creates doubt about the presence of the respondents at the place of incident but also about the entire prosecution story. Besides, if t h e r espon den t s w er e pr esen t at t h e spot w it h blood st ain ed clot h es t h en w h y t h ey w er e n ot ar r est ed at t h e spot im m ediat ely. I t is on ly st at ed by PW 1 0 t h at t h e r espon den t s w er e ar r est ed on t h e sam e day bu t h is st at em en t is silen t abou t t h e place of ar r est .

Last but not least, the presence of the respondents at the place where the dead body was recovered in the presence of PW1 Jagdish Prasad and PW10 Hari Mohan, Naib Tehsildar is inconsistent with the guilt of the respondents because if any person commits such a heinous crime of murder then the general human tendency is that first that he will flee away from the spot and will not remain present at there specially when the relatives of the deceased and the law enforcing agency are also present at the spot. So, in view of this Court, either the respondents were not present at the spot when the dead body was recovered or if they were present then, their presence is inconsistent with their guilt.

Therefore, in view of the above observations, the third alleged circumstantial evidence relied upon by the State Counsel that the respondents were present at

the place of recovery of dead body of Jaiveer is not conclusively proved and even if it is presumed to be true even then it is not consistent with the guilt of the respondents.

¶20Fourth alleged circumstantial evidence relied upon by the prosecution is the seizure memo.

I t w ou ld be im por t an t t o not e t h at t h is alleged cr ook ed st ick allegedly st ain ed in blood w as n ot r ecover ed at t h e in st an ce of eit h er of t he r espon den t s bu t on t h e poin t in g ou t of PW 9 Govin d Ram an d it is r at h er m or e im por t an t t o obser ve t h at PW 9 Govin d Ram is n on e else bu t br ot h er of PW 1 com plain an t Jagdish i.e. t h e pat er n al u n cle of t h e deceased. Therefore, even if this fact is presumed to have been proved conclusively then the recovery of stick at the instance of PW9 Govind Ram cannot point to culpability of the respondents.

¶21Another important point which is quite evident on the face of record is that PW10 Hari Mohan Naib Tehsildar states in his testimony that he prepared the inquest report Ext.Ka-2 at the spot whereas PW1 Jagdish Prasad in para 9 of his cross-examination stated that when he reached at the spot then people told him that his nephew is unconscious, therefore, he should be taken to the hospital immediately, whereafter his nephew was taken to the hospital in 108 ambulance service where they reached at 7 pm in the evening but as soon as they reached the hospital his

nephew died. The statement of PW1 Jadish Prasad and PW10 Hari Mohan regarding inquest report are diametrically opposite to each other which makes the case of the prosecution most improbable.

¶22There is one another factor which is very relevant to note that when PW1 was being examined in presence of Malkhana Mohirror then in response to a query of the Court, Malkhana Mohirror and the DGC (Criminal) stated that the stick was not available in the Malkhana. When Malkhana Mohirror was inquired about the case property then he answered after verifying the Malkhana register that no case property was deposited in the Malkhana as it is not entered in the register then how come this stick allegedly seized by the I.O. vide Ext.Ka-3 Seizure Memo could be produced in the Court.

¶23In view of the above discussion, this Court is of the considered view that prosecution has miserably failed to prove the case against the respondents beyond reasonable doubt. The trial court, therefore, was justified in acquitting the respondents. That being the position, present government appeal fails. Same is, accordingly, dismissed.

(Vivek Bharti Sharma, J.) (Manoj Kumar Tiwari, A.C.J.)

04.12.2024

04.12.2024

Rajni

RAJINI GUSAIN DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND,

2.5.4.20=97cfa6e4cbd49c07b876db48448ac 3701a9ae475a2547e4b7f1d9b1f17d01342, postalCode=263001, st=UTTARAKHAND, serialNumber=8D039BC77BD1A2222B4DF4F C80D4557562F95BEBA013F530616A158A0A 878BD8, cn=RAJINI GUSAIN Date: 2024.12.05 16:52:29 +05'30'