Pooran Singh vs State Of Uttarakhand

Ravindra Maithani, J

Instant appeal is preferred against the judgment and order dated 15.02.2012, passed by the court of learned Sessions Judge, Almora, Camp Ranikhet, in Sessions Trial No. 18 of 2007, State Vs. Pooran Singh. By the impugned judgment and order, the appellant has been convicted under Section 302 IPC and sentenced for imprisonment for life and to pay a fine of Rs.5000/- In default of payment of fine to undergo further imprisonment for one year.

Briefly stated, according to the prosecution, the deceased Ganga Dutt was Priest in Jhakarsam temple within Revenue Circle Kotli, Tehsil Bhanoli, District Almora. His term of Puja was to begin from 14.06.2007. He reached in the temple on 13.06.2007. In the night, on 13.06.2007, the appellant did maar peet with the deceased Ganga Dutt, due to which, the deceased was seriously injured. Narayan Singh and Kishana Nand intervened and rescued. Hearing the noise, Jagat Singh, Aan Singh and Ramesh Singh and other also reached at the temple. Thereupon, the appellant ran away from the place of occurrence. In the morning of 14.06.2017, the deceased succumbed to the injuries. A report to this effect was lodged by PW1 Kausubanand Pandey on 14.06.2007 at 10:00AM at Revenue Police Station Kotuli, Tehsil Bhanoli, District Almora. A Case Crime No. 1 of 2007 under Section 302 IPC was lodged and investigation began. The appellant was arrested and in jail on 16.06.2007, he was examined by PW12 Dr. R.V. Singh. Inquest of the dead body was prepared on 14.06.2007. According to the Panch, the deceased died due to injuries sustained in the maarpeet by the appellant Pooran Singh. The post mortem of the dead body was also conducted. In the post mortem, ante mortem multiple contusions on the face and extremities were noted and spleen was found ruptured. Post mortem was conducted by PW5 Dr. D.P. Durgapal. The Investigating Officer prepared the site plan and after completion of investigation, submitted charge sheet against the appellant under Section 302 IPC. Cognizance was taken and case was committed to the court of Sessions for trial. On 06.09.2007, the appellant was charged under Section 302 IPC, to which, he denied and claimed trial.

In order to prove the case, the prosecution examined as many as 12 witnesses, namely, PW1 Koustuba Nand Pandey, PW2 Krishna Nand Pandey, PW3 Narayan Singh Mehta, PW4 Aan Singh, PW5 Dr. D.P. Durgapal, PW6 Sundar Singh Gusain, PW7 Devi Dutt Pandey, PW8 Bir Singh Mehta, PW9 Krishna Nand, PW10 Jamuna Dutt, PW11 Maheshwar Dutt and PW12 Dr. R.V. Singh.

The appellant was examined under Section 313 of the Code of Criminal Procedure 1973 (hereinafter referred to as "the Code"). According to him, he has been falsely implicated in the case. After hearing the parties, vide judgment and order dated 15.02.2012, the appellant has been convicted and sentenced as hereinbefore. Aggrieved by it, the instant appeal.

Heard learned counsel for the appellant, learned counsel for the State and perused the record.

Learned counsel for the appellant raised the following points in his argument:-

(i) The place of occurrence is not established; it is not shown as to from where the appellant entered into the temple premises.

(ii) PW 2 Krishna Nand Pandey is not the reliable witness, he cannot be believed.

(iii) There is no evidence that the appellant, in any manner, hit or assaulted the deceased, which caused any injury. The cause of death is not established by the doctor.

(iv) It is not proved that any injury resulted in death of the deceased; there is no motive, there is no evidence of last seen together.

Learned counsel for the appellant would refer to the principle of law with regard to categories of the witnesses as laid down in the case of Vadivelu Thevar Vs. The State of Madras AIR 1957 SC 614. In the case of Vadivelu Thevar (supra). The Hon'ble Court, on the strength of the veracity of the witnesses, observed that there may be three categories of the witnesses as hereunder:-

"................Hence, in our opinion, it is a sound and well established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking oral testimony in this context may be classified into three categories, namely:

(1) Wholly reliable.

(2) Wholly unreliable.

(3) Neither wholly reliable nor wholly unreliable.

In the first category of proof, the court should have no difficulty in coming to its conclusion either way- it may convict or may acquit on the testimony of a single witness. If it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category or cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be in-directly encouraging subordination of witnesses..............."

On the other hand, learned counsel for the State would submit that death occurred in the kitchen; in the inquest report, it is categorically reported by the Panch that due to maar peet by the accused/appellant, the deceased died; accused was arrested on 15.06.2007, and in an examination in jail on 16.06.2007, injuries were found on the body of the appellant, which might have been caused due to maar peet with the deceased; learned counsel for the State would argue that although, the witnesses of fact have turned hostile but that part of their statements may be accepted, when they said that on the date of incident, there were altercation between the deceased and the appellant. Learned State counsel would further argue that prosecution has proved its case and no interference is warranted in the appeal.

PW1 Koustuba Nand Pandey, PW2 Krishna Nand Pandey and PW3 Narayan Singh Mehta, who according to prosecution witnessed the incident have turned hostile. But, merely on that basis, their evidence cannot be discarded or washed off. The veracity, authenticity or truthfulness of the witness is to be independently examined.

PW1 Koustuba Nand Pandey is not the eye-witness. According to him, his father was priest in Jhakarsam temple. His term was to begin from 14.06.2007. His father, the deceased had arrived at the temple, in the evening on 13.06.2007. On 14.06.2007, this witness was told by PW 2 Koustuba Nand Pandey that on 13.06.2007 at about 8-8:30 PM, the appellant had beaten his father by fists and kicks, thereafter, he lodged the FIR.

PW 2 Krishnanand Pandey is the main witness, he is the person, who was present with the deceased, when the alleged incident occurred. According to him, on that day, he was making roti in the kitchen, when the appellant was seen entering into their room and called for the priest. Deceased Ganga Dutt questioned him as to why did he come to at that hour, to which, the appellant replied that the temple belongs to him also and both started abusing each other. This witness denied of having seen the appellant assaulting the deceased. He has been declared hostile.

PW3 Narayan Singh Mehta and PW4 Aan Singh have also been declared hostile. PW 3 Narayan Singh Mehta states that on 13.06.2007, at about 06-06:30 PM, upon hearing the noise, he went in Jhakarsam temple. It was dark outside and drizzling. When he reached, he saw that the appellant Pooran Singh and the deceased Ganga Dutt arguing. Deceased was inside the room and appellant was outside of the room. After a while, they stopped arguing. This, witness as well as the appellant came from the temple and then he heard next day, that the deceased died. PW 4 Aan Singh also deposed that he heard the noise in the temple, on the date of incident.

One fact is established out from the statements of these witnesses that on 13.06.2007, in the evening, there was some altercation going on between the deceased and the appellant in the temple itself. Deceased was the priest, who was to perform puja from 14.06.2007. Appellant had gone in the temple in the late evening. It will be examined a little later but before that the statement of doctor may be seen.

PW 5 Dr D.P. Durgapal, conducted post-mortem on the person of the deceased on 14.06.2007, at 04:50 PM and found the following:-

(i) Both the chambers of the heart were empty.

(ii) There was blood inside the stomach.

(iii) Semi digested food in the small intestine.

(iv) Faecal matter present in the large intestine.

(v) The weight of liver was 1200 gms and liver was torned at two places. Length of mark was 3 cm.

(vi) Spleen was ruptured.

(vii) Gall bladder was in good condition and half filed with urine.

According to PW5 Dr. D.P. Durgapal, the cause of death was excessive bleeding and shock.

PW6 Sundar Singh Gusain is the Investigating Officer, who proved the FIR as well as charge sheet.

PW7 Devi Dutt Pandey, PW 8 Bir Singh Mehta, PW 9 Krishna Nand, PW10 Jamuna Dutt and PW11 Maheswar Dutt are the witnesses of the inquest. None of them is the witness of fact. In the inquest, the witnesses have opined that the deceased died due to maar peet with the appellant. But, PW8 Bir Singh Mehta, in his examination-in-chief states that he opined on the basis of information given to him by Krishna Nand, Narain Singh and Anand Singh. According to all these witnesses of inquest, they did not have personal knowledge as to how the deceased died, they had not seen the incident.

PW12 Dr. R.V. Singh, examined the appellant on 16.06.2007 in District Jail, Almora and found the following injuries.

(i) Linear abrasion (three line) on and above left Nipple, 3 cm length and 0.1 cm wide, superficial, reddish in colour, arm tender.

(ii) Contusion over left arm 2cm x 1cm, Reddish in colour, 6 cm below from upper margin of left shoulder, no tenderness, movement of left shoulder normal.

(iii) Abrasion on lower margin of patella (right) 1cm x 0.5 cm. Blackish brown, No swelling. Non tenderness movement of right knee normal.

(iv) According to patient, there was pain on the thumb of left foot. There was no injury or swelling.

According to the doctor, the injuries were 2-3 days old. He proved the certificate given by him.

In his cross-examination PW2 Krishna Nand Pandey has categorically stated about the sequel of events that occurred on 13.06.2007, in the late evening, till the deceased was found dead. According to him, on that day, in the late evening, he was making roti in the kitchen and it was drizzling. He heard loud noise and came out of the kitchen. He saw appellant coming out from the bed room and going towards courtyard. He was abusing the deceased from outside the room and the deceased was abusing from inside the room. Upon hearing this noise, Jagat Singh, Aan Singh and Ramesh Singh reached there and they took the appellant away. After a while, they all had left. He requested the deceased to take his meals; the deceased had the dinner; smoked thereafter and went to bed in the bed room. In the same room, this witness also slept.

According to PW 2 Krishna Nand Pandey, on the next day i.e., on 14.06.2007, the deceased woke him up at 5AM and expressed his inability to take the bath and fetch water saying that he is feeling feverish and asked this witness to fetch water and perform pooja etc., which this witness did. Thereafter, when this witness asked the deceased to have a cup of tea, he declined it, by saying that his mouth is drying up and he is feeling pain in his stomach and head. But, he took two sips of tea only. The deceased also denied to get any medicine for him. Thereafter, PW 2 went to the Diwan Singh Rawat of Horticulture Department and told him about the incident, they both came together. They found the deceased dead. PW2 Krishna Nand Pandey has categorically stated that in the incident of the previous evening, the deceased did not sustain any injuries. Deceased did told him that the appellant abused and pushed him. He denied to have told it to the Investigating Officer that the appellant kicked at the stomach of the deceased. This is all the evidence with regard to what had happened in the evening of 13.06.2007.

There is no direct evidence to the effect that the appellant hit the deceased. What is proved by the prosecution, in fact, is that the deceased had told to PW 2 Krishna Nand Pandey that the appellant had pushed him. Here age of the victim may also be noted. Appellant was 22 years of age, when examined under Section 313 of the Code. Whereas, according to post-mortem report, the deceased was 68 years of age. In the post-mortem report, simple contusions were found on the face; spleen was ruptured and cavity was filled with blood. In the inquest report, the Panch have opined that the deceased died due to maar peet done by the appellant on 13.06.2007. None of the Panch was witness to the incident. This according to them was recorded, as told to them by Jagat Singh, Aan Singh and Ramesh Singh but Jagat Singh, Aan Singh and Ramesh Singh did not support it in the Court.

Learned court below, in fact, has committed a grave error in observing in para 37 of the judgment that in the inquest report PW 2 Krishna Nand Pandey has also signed. Had it been so, the thing would have been different. Because PW 2 Krishna Nand Pandey was the person, who was staying with the deceased, at the time, when incident occurred, till, he died. In fact, it is signed by PW 9 Krishna Nand, who is not witness of fact. Whatever is stated about the cause of death in the inquest report, is simply hearsay. It cannot be a basis to convict the appellant.

According to the FIR, the deceased was beaten in the kitchen, which PW2 Krishna Nand Pandey has denied. According to him, when altercation between the deceased and the appellant was going on, in the late evening of 13.06.2007, he was making roti in the kitchen. The deceased was in the bed room adjoining the kitchen. The site plan further elaborates it. It is true that the site plan does not show, from which way, the appellant entered into the temple. But, it is not of any significance. What is significant is that there is no direct evidence that the appellant hit the deceased at stomach. The appellant has had altercation with the deceased, it is proved. According to PW 5 Dr. D.P. Durgapal, the death might be caused, if the deceased is hit at his stomach with force. There is no evidence that any force was applied by the appellant on the deceased. There is great suspicion that, in fact, the appellant might have caused the injury, but still it is in the realm of suspicion. Though, this suspicion is of highest degree but it is not crossing that golden line, which makes it prove beyond reasonable doubt.

In the instant case, prosecution has proved that on 13.06.2007, in the late evening, the appellant and the deceased had altercation and PW 2 Krishna Nand Pandey and others intervened. But, there is no evidence to the effect that the appellant kicked or hit the deceased at his stomach. Deceased was 68 years old at that time. There is no motive. It is not a case of last seen together. PW 2 Krishna Nand Pandey stayed with the deceased, thereafter. Next morning the deceased died. This Court is of the view, that no doubt, there is great suspicion that the appellant might have hit the deceased but it is suspicion only. But, suspicion howsoever high it may be, cannot take place of proof beyond reasonable doubt, therefore, this Court is of the view that the prosecution failed to prove the charge against the appellant. The appellant ought to have been given the benefit of doubt and acquitted of the charge under Section 302 IPC. Learned court below committed an error in convicting and sentencing the appellant. Therefore, the impugned judgment & order deserves to be set aside and appeal allowed.

The appeal is allowed.

The judgment and order dated 15.02.2012 is set aside. The appellant is acquitted of the charge under Section 302 IPC.

Appellant is in jail. He be released forthwith if not wanted in any other case.

Let a copy of the judgment be sent to the court below for compliance.