IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 403 of 2003 Ashwani Pal. .……… Appellant Versus State of Uttarakhand. ………. Respondent Mr. Bhuwnesh Joshi, Advocate holding brief of Mr. Vivek Shukla, Advocate for the appellant. Mr. Amit Bhatt, Addl. Government Advocate for the State / respondent. with Criminal Appeal No. 12 of 2011 Sachin Pal. .……… Appellant Versus State of Uttarakhand. ………. Respondent Mr. Sudhir Singh, Advocate for the appellant. Mr. Amit Bhatt, Addl. Government Advocate for the State / respondent. Coram: Hon’ble Barin Ghosh, C.J. Hon’ble V.K. Bist, J. Dated: 9th September, 2011 V.K. BIST, J. On 21st June, 2002, at 06:40 a.m., a First Information Report was filed by Abdul Sattar Khan PW3 alleging theft of cash of Chhayadeep Cinema Hall belonging to him and murder of Harikishan Thapa, the victim. In the First Information Report, appellants Ashwani Pal and Sachin Pal as well as one Rajveer @ Vicky were accused. The First Information Report was investigated, whereupon, a charge sheet was filed. Cognizance thereon was taken and charges were framed. Accused persons pleaded not guilty. Accordingly, trial commenced. 2 2. In the First Information Report, it was alleged that on 20th June, 2002, at 10:40 p.m., after the last show was over, the informant, after locking up the Hall, went to his residence. At that time, the victim, who was the watchman; appellant Sachin Pal, who was the Posterman; Rajveer @ Vicky, who used to organise cycle stand; and appellant Ashwani Pal, who is the brother of appellant Sachin Pal, were present at the Cinema Hall. It was stated that, at 06:15 a.m. of 21st June, 2002 in course of morning walk, informant reached the Cinema Hall, but did not find the victim, but appellant Ashwani Pal was there. On enquiry, appellant Ashwani Pal told the informant that, on the previous night, the victim, appellant Sachin Pal and Rajveer @ Vicky went towards the back side of the Cinema Hall, where after, he did not see them. Informant, then, took appellant Ashwani Pal with him to the booking office of the Cinema Hall and found its door open and the cash in the drawer missing and the belongings scattered. He, then, along with appellant Ashwani Pal, went near the canteen and found the body of the victim lying in a pool of blood outside the ladies bathroom near the canteen. Appellant Ashwani Pal informed the informant that, after murdering the victim, appellant Sachin Pal and Rajveer @ Vicky fled with the cash. Thereafter, appellant Ashwani Pal too fled. The charge sheet accepted the said version contained in the First Information Report. The contents thereof were supported by the post mortem report and recovery memo suggesting recovery of a saw blade and cash amounting to Rs. 7,600/-. It also accompanied inquest report; recovery memo of soil and blood stained soil; recovery memo of one torch, two cells and a bunch of keys; recovery memo of the seal of the said Cinema Hall; recovery memo of blood stained t-shirt; copy of G.D.; and site map. 3. At the trial, prosecution produced 8 witnesses. PW1 Dr. K.B. Joshi was the doctor, who prepared the post mortem report. In the post mortem report, which was proved by PW1, it was stated that the cause of death was due to ante mortem injuries. It was indicated that the victim suffered a wound measuring 13x4 cm. in front of neck just above hyoid bone. It was stated that trachea of the victim was cut. The victim had 150 ml. semi-digested food in stomach and semi-digested food and gas in small intestine as well as faecal matter and gas in large intestine. PW1 opined that the death could be caused in 3 the intervening night of 20th / 21st June, 2002 by a sharp-edged weapon like saw blade. 4. PW2 Kanta Prasad was the booking clerk of the Cinema Hall. He stated in his evidence that at around 09:30 / 10:00 a.m. of 21st June, 2002, when he went to the Cinema Hall, police had already recovered the dead body of the victim. He was an attesting witness to the inquest report; recovery memo of soil and blood stained soil; recovery memo of one torch, two cells and a bunch of keys; as well as recovery memo of seal of the Cinema Hall. He stated that he signed those documents as witness after they were prepared in his presence. 5. Abdul Sattar Khan was PW3, who was the informant. In his deposition, he repeated what was stated by him in the First Information Report. In addition to that, he stated that usually appellant Ashwani Pal, appellant Sachin Pal, Rajveer @ Vicky and the victim used to remain in the Cinema Hall after closure thereof. He takes his morning walk at Gandhi Park, where after, he reaches the Cinema Hall at around 06:00 / 06:30 a.m. After he reached the Cinema Hall, after his morning walk, the victim used to bring a plastic chair for him. On 21st June, 2002, victim did not do so. He, accordingly, enquired of the appellant Ashwani Pal as to the whereabouts of the victim. He also stated that when he went inside, he called out the name of the victim. He also stated that, soon after he lodged the First Information Report, police came. Police, thereafter, brought all the three accused persons to the Cinema Hall. The accused persons said that the saw blade, used for murdering the victim, and the money, robbed from the Cinema Hall, are lying on the terrace by the side of the water tank beneath the Bogun Villa bush. On such disclosure, a ladder was brought, whereupon, appellant Sachin Pal and Rajveer @ Vicky brought out the stolen cash amounting to Rs. 7,600/- wrapped in a plastic and a blood stained saw blade. He proved the recovery memo of cash of Rs. 7,600/- and also the saw blade. He identified the cash as well as the saw blade. In cross-examination, he said how much money was collected on 20th June, 2002, he cannot say. He said that the victim was working as a Chaukidaar since 3 / 4 months’ back. He said that appellant Sachin Pal used to put up posters for the Cinema Hall since childhood. He said that Rajveer @ Vicky used to take care 4 of the cycle stand outside the Cinema Hall. He said that the victim never complained about appellant Ashwani Pal or appellant Sachin Pal or Rajveer @ Vicky. He said that neither appellant Ashwani Pal nor appellant Sachin Pal nor Rajveer @ Vicky ever committed theft of any property of the Cinema Hall. 6. The recovery memo was signed, amongst others, by appellant Ashwani Pal, appellant Sachin Pal and Rajveer @ Vicky. In the recovery memo, it was stated that all the three accused persons disclosed that the cash and the saw blade have been concealed under the Bogan Villa bush over the terrace and, accordingly, a ladder was brought, appellant Sachin Pal went up the ladder and brought down the cash and the saw blade. 7. PW4 Ganga Saran proved his signature on the inquest report. He was not cross-examined. 8. PW5 Subhash Panwar is a signatory to the recovery memo pertaining to cash of Rs. 7,600/- and the saw blade. He proved his signature on the same. He stated that the same was signed by him at the Police Station. He said that Rs. 7,000/- were recovered. He said that the recovered cash was not counted in his presence and the same might have been counted at the Police Station. He stated that, at the request of PW3, he reached the Cinema Hall at around 06:45 / 07:00 a.m. in the morning. He stated that two accused were present when he reached the Cinema Hall, where after, the third accused was brought. He said that appellant Sachin Pal and Rajveer @ Vicky were being interrogated simultaneously. He said that the place of recovery of the cash and the saw blade was indicated by the accused persons. He said that those were recovered beneath the Bogan Villa bush on the terrace. He said that, on the terrace, appellant Sachin Pal and Rajveer @ Vicky, along with police, were present. He stated that he was standing below along with appellant Ashwani Pal. He stated that appellant Sachin Pal was in front followed by Rajveer @ Vicky and it was appellant Sachin, who took out the bundle containing the cash as well as the saw blade. 5 9. The remaining witnesses, namely, PW6, PW7 and PW8 are police witnesses. One of them was the Investigating Officer. 10. The entire case of the prosecution was put to appellant Ashwani Pal, appellant Sachin Pal and Rajveer @ Vicky, in compliance with Section 313 of the Code of Criminal Procedure. They denied the evidence so tendered by the prosecution witnesses. None of them stated that their signature was obtained on the recovery memo of cash and the saw blade by coercion, intimidation or threat. 11. Accepting the evidence, so tendered, the trial court, by the judgment and order under appeals, convicted appellant Ashwani Pal, appellant Sachin Pal and Rajveer @ Vicky under Section 302, read with Section 34; Section 394, read with Section 34; and Section 201 of the Indian Penal Code. Each of them has been sentenced to imprisonment for life with fine of Rs. 1,000/- under Section 302, read with Section 34, of the Indian Penal Code; 7 years’ rigorous imprisonment with fine of Rs. 1,000/- under Section 394, read with Section 34, of the Indian Penal Code; and 1 year rigorous imprisonment with fine of Rs. 500/- under Section 201 of the Indian Penal Code, and, in default of payment of fine, to undergo rigorous imprisonment for a period of three months. 12. Two separate appeals have been filed by appellant Ashwani Pal and appellant Sachin Pal. By consent of the parties, those appeals were heard together. Heard learned counsel appearing for the appellants and the learned Additional Government Advocate. 13. It was urged by the counsel appearing on behalf of the appellants that the case of the prosecution is based on circumstantial evidence. It was contended that the chain of the circumstances is not complete. It was contended that involvement of the appellants, with the crimes alleged, has not been established in any manner whatsoever. It was submitted that extra-judicial confession, contained in the recovery memo of cash and the saw blade, is no evidence in law and, on the basis thereof, none of the appellants could be held 6 guilty. The learned counsel for appellant Ashwani Pal submitted that, from the evidence tendered by the prosecution, it would be evident that the name of appellant Ashwani Pal was dragged unjustly. It was contended that appellant Ashwani Pal was the person said to have informed PW3 that the victim was taken inside the Cinema Hall by appellant Sachin Pal and Rajveer @ Vicky. It was submitted that would it not be unrealistic that appellant Ashwani Pal, after having had committed such a gruesome crime, will still remain present at the crime scene. It was also submitted that PW5, in no uncertain terms, stated that it was appellant Sachin Pal and Rajveer @ Vicky who were interrogated and not appellant Ashwani Pal. It was submitted that the whereabouts of the cash and the saw blade came to light in course of such interrogation. It was stated that, according to the evidence of PW5, appellant Ashwani Pal and PW5 were standing below; whereas the police, appellant Sachin Pal and Rajveer @ Vicky went up to the roof and the cash and the saw blade were fetched by appellant Sachin Pal. It was submitted that, in the circumstances, involvement of appellant Ashwani Pal, with the crimes alleged, was not proved. The learned counsel for appellant Sachin Pal submitted that, standing below and not climbing up to the roof, PW5 could not see whether the cash and the saw blade were, in fact, fetched out by appellant Sachin Pal. He submitted that, according to the version of PW5, the recovery memo of the cash was prepared at the Police Station, which was not counted in his presence. It was contended that the whole case of the prosecution, accordingly, falls flat. 14. According to the evidence tendered by the prosecution, it is clear that there was no staircase to climb up to the roof, wherefrom, recovery of the cash and the saw blade was made. For that purpose, a ladder had to be brought. According to the evidence of PW5, apart from the police personnel, appellant Sachin Pal and Rajveer @ Vicky went up the ladder and reached the roof and it was appellant Sachin Pal, who fetched the cash and the saw blade from beneath Bogan Villa bush. PW5 is a person known to PW3 and was called by PW3 having had discovered the crimes. In a situation of that nature, there was nothing wrong on the part of PW3 to call PW5. No enmity in between PW3 and the accused persons was ascribed. Similarly, no enmity amongst PW5 and the accused persons was ascribed. It was not suggested to PW5 that, from the 7 place where he was standing, recovery of the cash and the saw blade could not be seen by him. It was also not suggested what was the height of the roof. There was nothing on record to show that PW5 could not see, from where he was standing, recovery of the cash and the saw blade. A prudent person, in the circumstances as above, could not disbelieve the evidence tendered by PW3 and PW5. None of them had any axe to grind against any of the accused persons. 15. On analysis of the evidence, so given by PW3 and PW5, it appears that appellant Ashwani Pal had no role to play in the matter of locating the recovered cash or the saw blade. He was not interrogated according to PW5. He was also not the person, who fetched out the cash or the saw blade. In the circumstances, it appears to us that the evidence tendered does not show involvement of appellant Ashwani Pal with the crimes alleged, except his signature on the recovery memo. Furthermore, appellant Ashwani Pal was present at the Cinema Hall even before PW3 reached the Cinema Hall in the morning of 21st June, 2002. It is he, who was with PW3 when the dead body of the victim was discovered. It is he, who was with PW3 when the theft of the cash was detected. In the circumstances, crimes alleged against appellant Ashwani Pal, on the basis of the evidence tendered by the prosecution, cannot be regarded, by a prudent person; as proved. A mere signature on the recovery memo without more cannot be regarded as clinching evidence. Insofar as appellant Ashwani Pal is concerned, it is a case of not proved. 16. Insofar as appellant Sachin Pal is concerned, according to the evidence on record, in course of interrogation, he disclosed the location of the cash stolen from the Cinema Hall as well as the saw blade. According to the evidence of PW5, it was appellant Sachin Pal, who fetched the same from the place located by him. He himself corroborated the same by putting his signature on the recovery memo. In the circumstances, in the absence of his contention, while such case was put to him under Section 313 of the Code of Criminal Procedure, that his signature on the recovery memo was obtained by coercion or intimidation or threat, he had a duty to speak, which he failed to discharge. According to evidence, the cash so recovered was identified as the 8 cash belonging to the Cinema Hall. According to evidence, the victim died because his throat was cut with a sharp-edged weapon like a saw blade. According to evidence, the saw blade, with blood stains, was fetched by appellant Sachin Pal from the place he identified in course of his interrogation. 17. We, accordingly, allow the appeal filed by appellant Ashwani Pal and set aside the judgment and order under appeal as well as the sentence, insofar as appellant Ashwani Pal is concerned. Insofar as appellant Sachin Pal is concerned, we dismiss the appeal filed by him and confirm the judgment and order under appeal as well as the sentence. Accused Sachin Pal is on bail. His bail bonds are hereby cancelled. Appellant Ashwani Pal be set free forthwith. Let a copy of this judgment, along with the record of the court, be sent back to the trial court. (V.K. Bist, J.) (Barin Ghosh, C. J.) G