Girish Chandra Kukreti vs State Of Uttarakhand

(Per: Hon'ble Pankaj Purohit, J.)

Both the appeals arise out of same judgement and order dated 31.03.2014 passed by learned sessions judge Pauri Garhwal in Sessions Trial No. 23 of 2012, State vs Girish Chandra Kukreti and others therefore they are being taken up and are being decided by a common order.

By the said judgment and order the appellants have been convicted under Section 302 read with Section 34 of IPC and sentenced to undergo life imprisonment with fine of Rs.30,000/- each and, in default of fine, they were sentenced to undergo one year additional imprisonment. They have also been convicted under Sections 120-B read with Section 34 IPC and sentenced to undergo seven years rigorous imprisonment with fine of Rs.10,000/- each and, in default of fine, they were sentenced to undergo six month additional imprisonment. They have further been convicted under Section 201 read with Section 34 IPC and sentenced to undergo two years rigorous imprisonment with fine of Rs.2,000/- each and, in default of fine, they were sentenced to undergo one month additional imprisonment. All the sentences were directed to run concurrently.

In brief, the prosecution case is that on 01.04.2012, a written report (Ex Ka-2) was filed by the informant Govind Ram Kukreti(PW1) alleging that on 28.03.2012 at around 7:00 p.m. Girish Chandra Kukreti, Mohan Dev and Nepali who works with Mohan Dev and Harish Chandra Kukreti came to his house and took his son, Umanand with them. His son did not return in the night and on 29.03.2012 at around 12:30 p.m., he was informed by his granddaughter Km. Aasha that her father was lying injured near Do-Paani and blood was oozing out of his head. He further alleged that he suspected that the above named persons had murdered his son. Before filing Ex Ka-2, PW1 Govind Ram Kukreti submitted written report Ex Ka-1to Patwari on 29.03.2012 on which an inquest was drawn and the body of deceased Umanand was sent for postmortem. Postmortem was conducted on 30.03.2012 at 1 PM at District Hospital Kotdwar, District Pauri Garhwal.

On the basis of above facts, a Chik FIR was lodged in Revenue Police Station on 01.04.2012 at 11 a.m. under Section 302 of IPC and after investigation, the charge-sheet under Section 302 read with Section 34, 120-B read with Section 34 and Section 201 read with Section 34 of IPC was filed before the Judicial Magistrate.

Thereafter, learned Judicial Magistrate committed the case to Sessions Court which framed charges under Section 302 read with Section 34, 120-B read with Section 34 and Section 201 read with Section 34 of IPC. The charges were read over and explained to the accused, who pleaded not guilty and claimed to be tried.

To prove its case, the prosecution has examined PW1 Govind Ram (the complainant), PW2 Pramila Devi, PW3 Km. Aasha, PW4 Hafeez, PW5 Dr. Subhash Kumar, PW6 Rajendra Prasad, PW7 Maheshanand, PW8 Govind Prasad, PW9 Rajesh Mohan, PW10 Bharat Singh, PW11 Jagdish Prasad, PW12 Guljara Begum, PW13 I.O. Ramesh Rawat, PW14 Smt. Anita Gunjiyal, Judicial Magistrate, Kotdwar.

After prosecution evidence, the statement of appellants was recorded under Section 313 Cr.P.C., in which, they denied the evidence of prosecution and stated that they were falsely implicated.

After hearing the public prosecutor as well as the appellants accused persons, the trial court found the charges proved against the appellants beyond all reasonable doubts and convicted and sentenced him, accordingly as stated above.

We have heard learnd counsels for the parties and perused the entire oral and documentary evidence available on record.

To prove its case, the prosecution produced Ganesh Prasad as PW1 in court who reiterated the facts of prosecution story and supported it. He on oath deposed that he was well acquainted with Mohan Dev, Harish Chandra and Nepali. He further stated that deceased was his son and they lived together. He told that on the alleged date of incident, his son had purchased a cow and returned to the home at around 6:30 p.m. After a while, Raju alias Rajendra and Girish came there and forcibly administered alcohol to the deceased. He further stated that the deceased thereafter went with Rajendra and Girish. He also told that Harish Chandra, Nepali and Mohan Dev were waiting for them nearby. He further stated that his son did not return to the home that night and next day, Guljara Begum who lived near Jamun Khet told Km. Aasha (PW-3) that his father’s dead body was lying near Do-Paani. As soon as he was informed about the said incident by Km. Aasha, he reached the alleged place of incident and informed Gram Pradhan, Shanti Devi (DW-1) and Patwari (PW-13) about it. He further stated that the deceased did not had enmity with any person, but he was a witness in a criminal proceeding going on against Harish Chandra.

PW2-Pramila Devi, who is the wife of the deceased on oath supported the prosecution story and also reiterated the entire set of facts as deposed by PW1. She further stated that the deceased’s body was covered only with a shirt and it transpired that he was attacked with iron rod and knife.

PW3-Km. Aasha, who is the daughter of the deceased supported the versions of PW1 and PW2. She on oath deposed that on 29.03.2012, when she was returning from school, she was informed by Guljara Begum that her father was lying unconscious near Do-Paani. She reached home and informed about it to her grandfather and thereafter, accompanied her grandfather to the alleged place of incident.

PW4-Hafeez on oath stated that he was an agriculturalist and also run a poultry farm. He further stated that he was acquainted with Rajendra Prasad, Harish Chandra and Mohan Dev. He further stated that on 28.03.2012, all these persons came to his shop and purchased chicken from him. In his cross-examination, he stated that the deceased lived in his village, but the deceased was not accompanying the aforesaid persons when they came to his shop.

PW5- Dr. Subhash Kumar on oath deposed that on 30.03.2012, he was posted as a Medical Officer at the Hospital in Kotdwar. He stated that the dead body of the deceased was brought before him. He told that on examination, blood clots were found in his brain and it transpires that the death might have been caused because of head injury. He opined that the death might have occurred 24 hours before the dead body reached him. He further opined that the head injury might have been caused by iron rod and injury on the body might have been caused by a knife.

PW6- Rajendra Prasad in his Examination-in-Chief deposed that he was well acquainted with Dharmanand alias Harish, Girish, Nepali and Govind. He further stated that on 28.03.2012, he went to Pokhal Market where he met Harish and Girish. Thereafter, they purchased a liquor bottle and boarded a truck. The truck was being driven by Dharmanand alias Harish. When they reached Rokhad, Nepali, Sunil, Bheem, Mohan were present there. They saw Umanand was coming from another side who was accompanied by Anju. He further deposed that the time was around 6:30 p.m. He stated that Umanand told Girish that he wants to drink liquor and they all accompanied Umanand to his house where Umanand and Girish had drink and he, Nepali, Bharat and Umanand went towards river. Thereafter, he, Bharat and Nepali went to their home and when they asked Girish to accompany them he stated that he had some old dues and would come later. Thereafter, he, Mohan Dev, Harish went to Hafeez’s house to buy chicken. Thereafter, he and Harish went to Harish’s house where they ate chicken and got drunk and on 29.03.2012 he got the information that Umanand is dead. He was declared hostile by the prosecution as he did not support his statements recorded under Section 164 Cr.P.C.

PW7- Maheshanand is a formal witness and is a witness of inquest-report Panchayat and also the recovery-memo. He on his Examination-in-Chief on oath deposed that the deceased Umanand was a witness in a criminal case against Harish. He also stated that Revenue Sub Inspector recovered knife, blood stained clothes, iron rod from house of Kailash Chandra who is the father of Harish and Girish. He further stated that Harish was also threatening to kill him.

PW8- Govind Prasad is also a formal witness and a Panch witness, he was declared hostile by the prosecution.

PW9- Rajesh Mohan in his examination-in-chief deposed that Bharat Mohan was his brother and he was well acquainted with Mohan Dev, Govind Thapa, Harish, Girish and Rajendra Prasad. He stated that on the evening of 28.03.2012, we went towards the shop of Govind Ram. He further stated that his brother Bharat Mohan went to a shop where his goods came in the truck of Harish. When they reached near the bridge, Girish, Rajendra and his brother were sitting in the shop of Govind Ram Kukreti. He further stated that Bharat, Rajendra, Girish lifted the pipes and the door and went towards his house. Thereafter, Harish, Mohan Dev, Rajendra Prasad, Nepali visited the house of Hafeez and purchased chicken. Thereafter, a reexamination was done of the aforesaid witness and the prosecution declared him hostile.

PW10- Bharat Singh in his Examination-in-Chief stated that back in 2009 when he was standing near the bridge Harish beat him with a stick and thereafter, he lodged an FIR in which Umanand was the witness. But in cross-examination, he deposed that a compromise was entered into between them in the said case; he further could not tell as to whether Umanand (deceased) appeared as a witness or not in the said case.

PW11- Jagdish Prasad was also a Panch witness and he was also declared hostile by the prosecution.

PW12- Guljara Begum in her Examination-in-Chief stated that on 29.03.2012, she saw the deceased person lying near Do-Paani and thereafter informed his daughter Km. Aasha.

PW13- Ramesh Rawat was posted as Revenue Sub Inspector at the alleged time of incident. In his Examination-in-Chief, he deposed that he was the Investigating Officer and on the complaint of Govind Ram (PW-1) he went to the alleged place of incident and conducted Panchnama of the deceased. He also prepared site map, sent the body for postmortem and thereafter, filed an FIR. He also prepared the arrest memo of the accused person. He further deposed that he received information from some local informant that the weapons of crime had been hidden in the house of Kailash Chandra. When he reached there he found one pant, T-shirt, Torn shirt, Towel, Knife, Iron Rod. He deposed that all these items had blood stains over them.

PW14- Anita Gunjiyal was posted as Judicial Magistrate, Kotdwar and on 12.04.2012, she recorded the statements of Rajendra Prasad (PW-6) under Section 164 Cr.P.C.

After the prosecution evidence, DW1 Smt. Shanti Devi was examined who on her Examination-in-Chief deposed that she was Gram Pradhan of Chuna Mahera Village since five years. She further stated that the deceased was the resident of her village. She further deposed that on 29.03.2012, the father of the deceased informed her about the incident. She further stated that Kailash Chandra’s house is situated in the middle of village and if any, uproar or commotion would have happened there, the entire village would have heard it.

It is vehemently argued by learned counsel for the appellant that learned court below committed grave irregularity by convicting the accused appellants as the prosecution failed to prove its case beyond all reasonable doubts. He further stated that the prosecution story is highly improbable and unbelievable as the prosecution failed to prove any motive against the accused appellants. He very strongly submitted that no one had seen the alleged incident and the case is rested on circumstantial evidence; there is no proximity in the last-seen theory and there are many missing links in the prosecution case. He further stated that most of the prosecution witness i.e. PW6, PW8, PW9 and PW10 have not supported the prosecution story and turned hostile. He doubted the recovery of blood-stained articles. It was also his contention that retracted 164 Cr.P.C. statement cannot be relied upon to convict the appellants.

Per contra, learned State Counsel supported the case of prosecution and the impugned judgment contending that the evidence of prosecution witnesses remained consistent and unshaken throughout the trial and no material contradiction could be elicited even on lengthy cross examination of the victim as well as other prosecution witnesses.

Having heard the learned counsel for the parties and on perusal of the record, this Court is of the considered opinion that the entire case is based upon last seen theory and circumstantial evidence and it is a settled proposition of law that to sustain a conviction on the basis of circumstantial evidence following conditions must be established:-

My aforesaid view is based upon the golden principles enumerated in the landmark case of Sharad Birdhi Chand Sarda vs. State of Maharashtra, 1984 AIR 1622. Here in the case in hand, it is very clear from the perusal of the record that the conviction is based entirely upon hearsay evidence and no prosecution witness has himself seen the accused persons killing the deceased person nor has any person seen the accused-appellants coming out of the alleged place of incident. It is a settled principle of law that last seen theory cannot be the sole basis of conviction and it only forms a link in the chain of circumstantial evidence. The death of the deceased was allegedly occurred in night whereas the body was recovered in afternoon. The gap is too high to rule out the interference of third party. Moreover, the postmortem report conducted on 30.03.2012 at 1:00 p.m. states that the death might have occurred around 24 hours before postmortem examination which further creates doubt about the prosecution story and therefore, it would be dangerous to come to the conclusion that the appellants-accused who were last seen with the deceased were guilty of committing murder of Umanand. The statement of PW6 were recorded u/s 164 Cr.P.C., but the statements so recorded were not supported by the said witness in his examination-in-chief. He was also later declared hostile by the prosecution. It is a settled principle of law that statements recorded under Section 164 Cr.P.C. are not substantive piece of evidence and can only be used for corroboration or contradiction of the witness during trial. In that view of the matter, the statements recorded under Section 164 Cr.P.C. are of no help to the prosecution.

In case of circumstantial evidence, the court has to examine the entire evidence in its entirety and ensures that the only inference that can be drawn from the evidence is the guilt of the accused. In the case at hand, there are many apparent lapses in the investigation and there are also missing links:-

The last seen theory seems to have substantially weighed with the trial court and therefore, it brushed aside many loop holes in the prosecution case. None of the circumstances relied upon by the prosecution and accepted by the trial court can be said to be pointing only to the guilt of the appellants-accused. If more than one inference can be drawn, then the accused must get benefit of doubt. In this view of the matter, it is safe to conclude that the prosecution failed to prove its case beyond all reasonable doubt against the appellants.

The upshot of the aforesaid discussions is that both the appeal deserves to be allowed. Accordingly, both the appeals stand allowed and the impugned judgment and order dated 31.03.2014 passed by the learned Sessions Judge, Pauri Garhwal, is hereby set-aside. They are acquitted of charges under Sections 302 read with Section 34 IPC, 120B read with Section 34 IPC and 201 of IPC. Both the appellants are on bail, they need not surrender bail bond discharged.

Let Trial Court Record be immediately sent back to the trial court for consignment.