Mahant Rajgiri vs State Of Uttarakhand

Hon’ble Pankaj Purohit, J. (Per)

This appeal, preferred by the appellant from jail, is directed against the judgment and order dated 16.01.2017 passed by learned Additional Sessions Judge, Kotdwar in Session Trial No. 12 of 2016, State vs. Mahant Rajgiri, whereby the said court has convicted the appellant-accused Mahant Rajgiri under Section 302 of IPC and sentenced him to undergo rigorous imprisonment for life and a fine of Rs.5,000/- in default of which he shall also serve a rigorous imprisonment for a period of three months.

The prosecution case in brief is that an FIR was lodged by Vinod Yadav whereby it was alleged that Mahant Rajgiri S/o Mahant Vedgiri had murdered his uncle Shri Chote Lal alias Netra Pal on 22.03.2016 at around 5 a.m. with Pathal (a sharp edged cutting weapon). He alleged that the murder was witnessed by two 108 employees, Mahant Rajgiri ran towards Chaurasi Kutia; dead body is lying near his house.

On the basis of the FIR, a chick FIR was lodged in P.S. Laxman Jhula, District Pauri Garhwal and a Case Crime No.10 of 2016, under Section 302 IPC was registered against Mahant Rajgiri at 06:00 hrs. and investigation ensued. Appellant was arrested on the same day i.e. 22.03.2016 at 9:30 a.m. and at his pointing out Pathal was also recovered. After investigation, charge-sheet was submitted against the appellant under Section 302 IPC on 27.04.2016.

Learned Chief Judicial Magistrate took cognizance of the aforesaid offence and committed the trial to session court. The Additional Session Court thereafter framed charges under Section 302 of IPC in which the accused pleaded not guilty and claimed to be tried.

To establish its case, the prosecution has produced as many as nine witnesses, namely, PW-1 Vinod Yadav, PW-2 Mr. Harish Singh , PW-3 Mr. Manish Pal, PW-4 Mr. Jaswant, PW-5 Sub Inspector Shri Vivek Rathee, PW-6 Mr.. Tileshwar, PW-7 Dr. Sri Krishna Kumar, PW-8 Constable Bhupendra Singh, PW-9 SHO Amarjeet Singh.

After prosecution evidence, the statements of appellant were recorded under Section 313 Cr.P.C. in which he stated that he is innocent and claimed to be tried. He further stated that he himself had called 108.

During trial, PW1- Vinod Yadav in his examination-in-chief stated that the deceased was his uncle (Fufa) who lived near Laxman Jhula since last 40 years. He also stated that the accused was also known to him and the accused was a habitual drunkard. And he must have murdered his uncle as his uncle had once scolded him for his drinking habits. He further stated that he was informed by the employees of 108 that they saw the accused hitting the deceased with Pathal. He admitted that he was the one who lodged the FIR and proved it as Ex.Ka-1.

PW2- Shri Harish Singh and PW3 Shri Manish Pal are the employees of 108 who are also direct eye-witnesses of the alleged incident. In their examination-in-chief they stated that on 22.03.2016 at around 3:26 a.m. they received an information from 108 Head Office that someone is lying injured near Swarg Ashram Laxman Jhula. On reaching there they saw that the deceased was coming out of his hut and as soon as the accused saw him, he started hitting him with Pathal. They further stated that when they questioned the accused as to what he was doing, he ran away.

PW4- Shri Jaswant Singh in his examination-in-chief, stated that in the early morning of 22.03.2016 police was searching for someone and when the police enquired about the accused to him, he informed the police that the accused person is hiding near Chaurasi Kutiya Neelkanth Road and the police in front of him caught the accused. He also testified that the accused admitted that he has murdered the deceased and the police on the basis of disclosure statement made by the accused recovered the Pathal from a nearby place. He also stated that he is the witness to the recovery memo. He proved recovery-memo Ex.Ka-2.

PW5- SI Vivek Rathee in his examination-in-chief stated that he reached the alleged place of incident as soon as he got the information of the alleged murder. He further stated the Panchnama of the deceased was done by him and thereafter he sent the dead body for post-mortem. He proved and Exhibited police-papers Ex.Ka-3 to Ex.Ka-8. He also stated that he clicked pictures Ex.1 to Ex.3 of the dead body of the deceased. He also proved Pathal before trial court Ex.4 and Ex.5.

PW6- Shri Tileshwar in his examination-in-chief, stated that the police collected mud and samples of blood stains from the site of incident and sent it to Forensic laboratory to match it with blood stains recovered from the murder weapon and dead body.

PW7- Dr. Shri Krishna Kumar in his examination testified that he was on duty when the dead body of the deceased reached at the hospital. He stated that he conducted post-mortem and prepared the post-mortem report.

PW8- Constable Bhupendra is a formal witness in his examination-in-chief he stated that he was the one who wrote the chik FIR. He identified his writing and signature in the FIR.

PW9 – Shri Amarjeet in his examination-in chief stated that he was the SHO of the concerned police station and also the investigating officer of the alleged offence. He further testified that after the information of the alleged offence during investigation he took the statements of the witness and also prepared the site plan, map, arrested the accused and also recovered the alleged weapon.

It is vehemently argued by the learned Amicus Curiae for the appellant that the learned trial court convicted the accused-appellant only on the basis of so called direct evidence of two 108 employees PW-2 and PW-3. He submits that the learned trial court failed to appreciate the fact as to why the accused person will himself call 108 and when PW-2 and PW-3 arrived surprisingly would himself kill the deceased and would wait them to arrive. The learned Trial Court also failed to appreciate the contradiction of the two employees of 108 who in their examination-in-chief- themselves submitted that the accused called 108 and informed that someone is lying injured and they only also in the same examination-in-chief stated that they saw the accused killing the deceased by hitting him with Pathal. He also submitted that the prosecution story has some logical gaps and it fails to explain as to why the accused person will himself call medical care for someone whom he has himself killed. He vehemently argues that apart from these two star witnesses the prosecution has no direct evidence against the accused and the story of the prosecution appears to be tailor-made to convict the accused. The prosecution also failed to prove as to why PW-4 who was the witness of the arrest of the accused, his admission of guilt and also the witness of the recovery of the alleged weapon present on the road at the wee hours of the morning.

Per contra, the learned State Counsel supported the prosecution case.

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 the direct evidence of two star witnesses i.e. PW-2 and PW-3. This Court is of the considered opinion that their statements do not inspire confidence as their statements are self contradictory in nature. The presence of these two star witnesses is also highly doubtful. At the face value it deserves rejection on the ground that why the appellant would himself call them to be a witness against a crime that he allegedly committed. The prosecution has failed to produce any call details or any record of 108 headquarters or police station whatsoever to prove the fact that 108 headquarters received any call and thereafter it called to PW-2 and PW-3. The Court finds substance in the arguments advanced by the learned amicus curie as to why the accused will himself call medical help for a person whom he himself killed. The evidence of the other witnesses of the prosecution also does not inspire confidence and they appear to be planted witnesses. Moreover prosecution failed to satisfy about the presence of PW4 who is the witness of arrest, recovery and admission of guilt in the alleged place. Only recovery of Pathal at the pointing out of appellant is not sufficient to bring home the charge of murder against the appellant. It is only a corroborative evidence. It is a settled principle of law that prosecution has burden to prove the guilt of the accused beyond reasonable doubts which as per opinion of this court it has failed to discharge in the present case in hand. In this view of the matter, it is safe to conclude that the prosecution has failed to prove its case beyond all reasonable doubt against the appellant.

The upshot of the aforesaid discussions is that the appeal deserves to be allowed. Accordingly, present appeal is allowed and the impugned judgment and order dated 16.01.2017 passed by learned Additional Sessions Judge, Kotdwar in Session Trial No. 12 of 2016, State vs. Mahant Rajgiri, is hereby set-aside. He is acquitted of charges under Sections 302 of IPC. The appellant is in jail. He be released forthwith if not wanted in any other case.

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