Atam @ Aatma vs State of Uttarakhand

Servesh Kumar Gupta, J.—Both the appeals, titled-above, challenge the same judgment and order dated 4.9.2010 rendered by learned Sessions Judge, U.S. Nagar at Rudrapur in S.T. No. 19 of 2007, State v. Atam @ Atma and another, so are being adjudicated by this common verdict. The aforesaid trial resulted into the conviction of the appellants/accused Atam @ Aatma and Kamal for the offences under sections 302/34 and 201 I.P.C., wherefor they have appropriately been sentenced.

This is a case of circumstantial evidence where the deceased Balvinder Singh lost his life allegedly at the hands of appellants. It is the case of prosecution that deceased had gone from his house on 20.9.2006 riding on a bicycle. When he did not return for three days, a massive hunt to enquire about his whereabouts was made by his family members including the informant Baldev Singh (deceased''s real brother). On 23.9.2006, they came to know through P.W. 2 Ranjeet Singh that deceased was last seen in the company of appellant Atam while loitering in Bazpur city. On being enquired, appellant Atam confessed that he, along with his relative Kamal (co-appellant), has committed the murder of Balvinder Singh and subsequently buried his body in a sugarcane field. With the above averments, the complainant got the FIR (Ex. Ka-1) scribe by Salvant Singh and thereafter lodged the same on 23.9.2006 at 17:00 hours at reporting outpost Kundeshwari of P.S. Kashipur. Chick report thereof is Ex. Ka. 2.

The police swung into action and on 23.9.2006, at the instance of appellant Atam, recovered the dead body of deceased which was buried in a sugarcane field. Memo of that recovery is Ex. Ka-8. Inquest report (Ex. Ka-12) was prepared on the same day at the selfsame place of recovery. In the opinion of members of inquest, death had been caused on account of neck injuries of victim. Hence, the opinion for conducting autopsy was expressed.

Post-mortem on the dead body was conducted on 24.9.2006 at Government Hospital, Kashipur by P.W. 9 Dr. Om Prakash. The following ante-mortem injury was found:--

Large incised wound present middle of the neck from 3 c.m. above medial end of right collar bone, horizontally continuous to left side of neck up to left side of nape of neck. In middle part this incised wound 8 c.m. below from left ear (size 19 c.m. x 3 c.m. x maximum depth Left side of neck 5 c.m.) wound clean cut, sharp margin, reddish in colour underneath skin, muscles and carotid vessels of the left side of neck complete cut.

In the opinion of doctor, cause of death was shock and haemorrhage as a result of ante-mortem incised wound of neck. He further opined that death had been caused prior to 2-5 days of examination.

On 26.9.2006, appellant Kamal could be arrested, as is clear from the arrest memo (Ex. Ka-19). On disclosure of this accused, a sharp-edged ''Patal'' (lethal weapon used in crime) besides a bicycle were recovered from another sugarcane field. Recovery memo thereof is Ex. Ka-5.

The investigation culminated into submission of charge-sheet (Ex. Ka-20) against the appellants for the offences under sections 302 and 201 IPC.

On 13.07.2007, learned Sessions Judge, U.S. Nagar framed charges against both the appellants/accused for the offence under sections 302/34 and 201 IPC. They abjured their guilt and claimed trial.

The prosecution has examined as many as twelve witnesses in this case, who are P.W. 1 Baldev Singh (informant), P.W. 2 Ranjeet Singh (who last seen the accused in the company of appellant Atam), P.W. 3 Suchha Singh and P.W. 4 Jasvinder Singh (recovery witnesses), P.W. 5 Constable Rajendra Goswami, P.W. 6 S.I. Raj Kumar Singh, P.W. 7 Sukhchain Singh, P.W. 8 Constable Jitendra Singh, P.W. 9 Dr. Om Prakash (who conducted autopsy), P.W. 10 P.S. Bisht, P.W. 11 S.O. Harkawal Singh (I.O. of the case) and P.W. 12 H.C. Roshan Singh.

After prosecution evidence, statements of appellants/accused were recorded u/s 313 Cr.P.C. Both of them have casually denied their complicity in the crime. However, no oral or documentary evidence was led in defence.

Learned Trial Court adjudicated the trial into conviction and sentence of the appellants as aforementioned.

We have heard learned amicus curiae on behalf of both the appellants as well as learned Deputy Advocate General (Criminal) on behalf of State nay perused the Lower Court record.

Having gone through the evidence on record, we find that there is no direct evidence highlighting commission of offence at the hands of appellants. Appellant Atam @ Aatma has been roped in the case basically on the evidence of ''last seen'' as also on the basis of recovery of dead body at his instance and the extra-judicial confession. The prosecution evidence suggests that when the real brothers of deceased, including informant, were busy in massive search of their eloped brother, P.W. 2 Ranjeet Singh met them and informed that he had seen Balvinder Singh (deceased) in the company of appellant Atam on 20.9.2006 in Bazpur town. On disclosure of such information, complainant along with P.W. 2 Ranjeet Singh and Salwant Singh went to search the accused Atam who could be found at the farm of one Raj Singh. All the fact witnesses have categorically deposed that deceased and accused Atam used to graze animals together in the forest.

On 23.9.2006, appellant Atam made an extra-judicial confession before Baldev Singh (P.W. 1), Ranjeet Singh (P.W. 2) and Salwant Singh to the effect that he (Atam), with the assistance of his cousin brother Kamal (accused), has buried Balvinder Singh in a sugarcane field after committing his murder. Appellant Atam was apprehended and subsequently brought at the Police Outpost where the FIR could be lodged. Investigation, accordingly, commenced and on the same day i.e. on 23.9.2006, the police, at the instance of accused Atam, recovered the dead body. Thus, we find that sufficient evidence is available on record proving the culpability of appellant Atam in the crime i.e. the evidence of ''last seen'' coupled with extra-judicial confession besides recovery of dead body of deceased Balvinder Singh at his instance.

Insofar as the appellant Kamal is concerned, we do not find any clinching evidence on record, which could prove his involvement in the crime. The only evidence available against accused Kamal is that he was named by the accused Atam as his accomplice in commission of crime. Apart from that, recovery of a bicycle besides the weapon ''Patal'', which was allegedly used in crime, was shown at his instance. In our opinion, this evidence alone is not complete, so as to link the appellant Kamal with the crime by invoking the provision of section 34 I.P.C., wherefor he has been charged with co-appellant Atam while levelling the charge for the offence u/s 302 IPC. More so, deceased was never seen in the company of appellant Kamal. In order to apply the provision of section 34 I.P.C., the law demands a pre-arranged plan on the part of both the accused persons. But on a careful perusal of the entire prosecution evidence, no such plan is reflected.

It is further pertinent to mention here that P.W. 3 Suchha Singh (maternal uncle of deceased) is the witness before whom recovery of bicycle and weapon ''Patal'' was made, while P.W. 4 Jasvinder Singh (real brother of deceased) is the witness of recovery of above-stated articles besides a Spade. The weapon of assault ''Patal'' was not produced either before P.W. 3 Suchha Singh or P.W. 4 Jasvinder Singh (witnesses of recovery) during the course of evidence but only the bicycle was produced before them. In that context, P.W. 1 and P.W. 4 have given contradictory statements, inasmuch as, P.W. 1 says that his brother (deceased) had taken bicycle demanding it from someone else whereas P.W. 4 states that the deceased himself owned the same. All the more, the weapon ''Patal'' was never sent to the Forensic Science Laboratory for its examination.

Hence, simply for the reason that appellant Kamal was named by co-appellant Atam as his companion in the crime and recovery of ''Patal'' as well as a bicycle has been shown at his instance, he cannot be held guilty for the offence u/s 302 read with section 34 IPC.

For the foregoing reasons, we allow the appeal (CRLA No. 280 of 2010) preferred by the appellant Kamal. He is acquitted from all the charges levelled against him. He is already on bail. He need not surrender. His bail bonds are cancelled and sureties are discharged.

At the same time, the appeal preferred by the appellant Atam @ Atama, through jail, (CRJA No. 60 of 2010), being bereft of any merit, is hereby dismissed. He is in jail. He shall serve out the sentence so awarded by the Trial Court vide the impugned judgment and order. Let a copy of this order along with Lower Court record be sent to the Court concerned for compliance of the order.