Deepak @ Deepu vs State Of Uttarakhand

Alok Singh, J

Present appeal is filed against the judgment and order dated 16.11.2006 passed by Sessions Judge, Chamoli in Sessions Trial No. 15 of 2005 convicting and sentencing the appellant to undergo 10 years rigorous imprisonment and to pay fine of Rs. 20,000/- and in default, to undergo 2 years simple imprisonment under Section 304 IPC.

Brief facts of the present case, inter alia, are that on 26.03.2005, Vinod with his friends Hemant, Vikas @ Gandhi, Deepu and Rajendra went to play Holi in the mohalla of Suresh shopkeeper. After returning from the house of Suresh, Vinod went to the house of accused Deepu; seeing this accused Deepu came downward, thereafter, accused Deepu and Vinod quarrelling together came on the roof; Deepu's mother Janki Devi and his sister Kanti also came there; accused party started pelting brickbats on Vinod and others. In the meantime, PW 1 - Devendra Singh Chauhan, scribe of the FIR and brother in law of Vinod, also reached the spot. In the quarrel, Devendra Singh Chauhan tried to intervene. Suddenly, stone pelted by Deepu hit on the head of Vinod and blood started oozing out. Even then, Deepu not stopped and continued pelting brickbats on Vinod and his friends. Seeing the quarrel, people gathered there and Deepu fled away from the spot. PW1 Devendra Singh and his wife took Vinod to their home and thereafter, they took Vinod at about 04.00 p.m. in Government Hospital, Joshimath where Dr. Chandola treated him and referred him to Dehradun for better treatment; thereafter, they took Vinod to Rishikesh where Dr. Sanjeev Kharakwal informed them that Vinod had died. On the next day, they reached Joshimath, then he lodged the FIR on 28.03.2005 at 06.15 a.m. Matter was investigated and charge sheet was submitted against the appellant, Janki Devi and Kanti. After committal of the case to the court of Sessions, Sessions Judge, Chamoli framed charges to which accused pleaded not guilty and claimed to be tried.

In order to prove its case, prosecution examined PW1 Devendra Singh, PW2 Hemant Singh, PW3 Dr. Sanjeev Kharakwal, who conducted the post mortem examination, PW4 Constable Alam Singh and PW5 Sub Inspector V.P. Sharma, who investigated the matter.

Learned trial court, having heard learned counsel for the parties and going through the evidence available on record, convicted and sentenced the appellant as mentioned above.

PW 1 Devendra Singh Chauhan is brother in law of deceased. There is contradiction in his statement. He mentioned in the FIR that Smt. Janki Devi, Kanti and appellant pelted brickbats on Vinod and others and one of the brickbats thrown by accused appellant Deepu hit on the head of Vinod. In the examination in chief, he stated that Vinod was caught by Smt. Janki Devi and Kanti; Deepak pelted one brickbat which hit on the head of Vinod.

In the examination in chief, PW1 Devendra Singh Chauhan stated that at about 11.00 a.m. Vinod went to play Holi and after some time, he also reached the place of incident. After the incident, he and his wife took the injured Vinod to their home. Blood was oozing out.

The conduct of PW1 Devendra Singh Chauhan is very doubtful. His brother in law was injured and lying in the pool of blood but they (he and his wife) did not take him (Vinod) to the hospital immediately. First they took him to their house. Vinod was in their house from 11.30 a.m. till 03.30 p.m. Why they kept the injured Vinod with them for four hours is not know. They after four hours took him to Government hospital, which was farther than J.P. Hospital that too in the evening. He stated that at about 06.30 p.m. he arranged a Maruti Van with great difficulty for taking Vinod to Dehradun. In the way, Maruti Van was disturbed, thereafter, petrol was finished and then driver went to change the tyres. There is delay of about two days in lodging FIR. From the time of incident till he lodged the FIR, he did not make any effort to lodge the complaint though police station was on the way to Dehradun. PW1 - Devendra Singh Chauhan stated that he could not arrange the vehicle because it was day of Holi festival. 2000 - 3000 people were living in the village Marvari where incident took place, therefore, it was highly improbable that PW 1 Devendra Singh could not arrange vehicle. It is also highly unbelievable that first car was disturbed, then police was finished and then, driver went to change the tyre. Police party was also on patrol but he did not make any effort to contact with them.

PW1 Devendra Singh also did not make any effort for quick treatment of Vinod. Instead to taking Vinod to J.P. Hospital, firstly he took him to his house then to the Government Hospital. He stated that he made a call from PCO to the police station but the police did not respond well. Per contra, PW 5 Sub Inspector V.P. Sharma and PW 4 Constable Alam denied this statement and had stated that no phone call was received.

PW 5 Sub Inspector V.P. Sharma Investigating Officer failed to collect brickbat from which alleged injury was caused. He stated on oath that no stones or brickbats were found on the spot. He collected blood stained floor from the spot and kept it in a sealed cover. Whether it was sent to FSL or not, is not known. He further stated that when he asked the driver of Maruti Mahendra for bill of diesel and tyre, he replied that he purchased the diesel from his relative and he had not taken bill of tyre.

PW3 Dr. Sanjeev Kharakwal in his cross examination stated that injuries sustained by Vinod could be caused due to fall on stairs.

Statement of PW1 Devendra Singh does not inspire confidence. His conduct was highly unnatural and doubtful. Prosecution has failed to establish motive for pelting brickbats and cause of quarrel. All the above create dent on the prosecution story, therefore, in my opinion, prosecution failed to prove its case beyond reasonable doubt.

Accordingly, appeal is allowed. Impugned judgment and order is set aside. Appellant is on bail. His bail bonds are cancelled and sureties are discharged. He need not to surrender before the court below, if not wanted in any other case.

Let copy of this judgment be sent to the lower court along lower court record for information.