IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 231/2007 Bhairav Dutt ….. Appellant. Versus State …… Respondent. Sri S.K. Agarwal, Senior Advocate, assisted by Sri Veer Kunwar Singh, Advocate for appellant. Sri S.S. Adhikari, learned A.G.A. for the State/respondent. Dated: April 13, 2010. Coram: Hon’ble B.C. Kandpal, J. Hon’ble Nirmal Yadav, J. [Per: Hon’ble B.C. Kandpal, J.] This appeal, under section 374 of the Code of Criminal Procedure, arise out against the judgment and order dated 5-6-2007, passed by Sessions Judge, Bageshwar, in S.T. No. 02 of 2006, convictring the accused/appellant Bhairav Dutt, U/Ss 307 and 302 I.P.C. and sentencing him to undergo seven years R.I. and a fine of Rs. 25,000/- U/S 307 I.P.C. and in default of payment of fine to further undergo S.I. for three months and to undergo life imprisonment U/S 302 I.P.C. and to pay a fine of Rs. 50,000/- and in default of payment of fine to further undergo S.I. for six months. However, all the sentences were to run concurrently. 2- The prosecution story, in brief, is that on 15.10.2005, at about 7.00 P.M. Amba Dutt Joshi, complainant, lodged a written report at Patwari Circle Gagarigoal, Tehsil Garur, District Bageshwar, with the allegations that on 12.10.2005 at his house 2 in village Nargwadi, where his son Harish Chandra lives with his family, after taking breakfast in the noon, all the four members of the family became unconscious and they started vomiting. All the four family members were brought to Baiznath Health Center, where during treatment, his son Harish Chandra and his grandson Sundar died. His daughter-in-law Smt. Kamla Devi and his granddaughter Meena were referred to Almora Base Hospital for better treatment. The complainant used to live at Haldwani and after receiving the information he remained busy in the treatment of his daughter-in-law and grand-daughter and other family problems, therefore, it caused delay in lodging the F.I.R. The Patwari, on the basis of written F.I.R., Ext. Ka.1, prepared chick F.I.R. Ext. Ka.25. The I.O. visited the house of the complainant and prepared siteplan Ext. Ka.26. He also took into possession the household items from the house of the deceased and prepared, memo Ext. Ka.27. On 17.11.2005 Smt. Kamla Devi, widow of deceased Harish Chandra handed over a letter to the I.O. and suspected that accused Bhairav Dutt was behind the incident. At this the I.O. started search of accused Bhairav Dutt. On 22.11.2005, at 10.00 A.M. Harish Chandra Joshi, the village watchman brought accused Bhairav Dutt to the Patwari Headquarter. There the I.O. interrogated Bhairav Dutt, whereupon Bhairav Dutt confessed his guilt, hence he was arrested vide arrest memo, Ext. Ka.28. Kailash Chandra also informed the I.O. that accused Bhairav Dutt had informed him and Amba Dutt that he had administered poison to Harish Chandra and his family members. 3 3- The prosecution case further is that the inquest on the dead bodies of the deceased Harish Joshi and Sundar Joshi was conducted by the Police of Baiznath. The police prepared inquest report Ext. Ka.4 and Ext. Ka.10 pertaining to deceased Harish Joshi and Sundar Joshi respectively. After completing other formalities the dead bodies were sealed and sent to post mortem. The postmortem on the dead bodies of the deceased Harish Joshi and Sundar Joshi was conducted by Dr. N.S. Kutiyal, and Dr. S. Ram, on 13.10.2005 at 11.15 A.M. and 11.45 A.M. respectively. The doctor found cloted blood on both the nostrils and defrosted froth in right angle of mouth of deceased Harish Chandra Joshi. In the opinion of the doctor the cause of death was due to failure of cardio respiratory system. Looking to the possibility of administering poison to the deceased, the doctor preserved the viscera of the deceased persons for chemical examination. The doctor proved the autopsy report of Harish Joshi and Sundar Ext. Ka.23 and Ka.24 respectively. The viscera and other articles seized during investigation were sent for chemical examination and the chemical examiner has submitted his reports Ext. Ka.31 and Ka. 32. 4- After completion of the investigation the I.O. submitted charge sheet, Ext. Ka.35 against the accused/appellant Bhairav Dutt. 5- The Judicial Magistrate, Bageshwar, vide his order dated 28.1.2006, committed the case to the court of Sessions for trial. 4 6- The learned Sessions Judge, framed charges U/Ss 307 and 302 I.P.C. against the accused/appellant, who pleaded not guilty and claimed to be tried. 7- The prosecution, in support of its case, has produced P.W.1, Amba Dutt, Joshi, complainant, P.W.2, Meenakshi Joshi, P.W.3, S.I. Manish Upadhyaya, who performed the inquest on the dead bodies, P.W.4, Kailash Chandra Joshi, Health Inspector, Community Health Center, Baiznath, where the family members of the deceased were brought after the incident, P.W.5, Smt. Kamla Joshi, widow of deceased Harish Chandra Joshi, P.W.6, Dr. N.S. Kutiyal, P.W.7 Dr. S. Ram, who conducted autopsy on the dead bodies jointly and P.W.8 Tribhuwan Singh Bora, Patwari, who investigated the case. 8- The learned Sessions Judge, after hearing learned counsel for the parties and considering the entire material available on record, found accused/appellant guilty of offences U/S 307 and 302 I.P.C. and sentenced him to undergo seven years R.I. and Rs. 25,000/- as fine U/S 307 I.P.C. and in default of payment of fine to further undergo S.I. for three months, and to undergo life imprisonment U/S 302 I.P.C. and to pay a fine of Rs. 50,000/- and in default of payment of fine to further undergo S.I. for six months. However, all the sentences were to run concurrently. 9- Feeling aggrieved by the impugned judgment and order, the accused/appellant has filed this appeal before this Court. 5 10- We have heard Sri S.K. Agarwal, Senior Advocae, assisted by Sri Veer Kunwar Singh, on behalf of the appellant and Sri S.S. Adhikari, learned A.G.A. for the State and perused the record. 11- Learned counsel has argued that there are material contradictions in the statements of P.W.1, Amba Dutt Joshi, P.W.2, Km. Meenakshi and P.W.5, Smt. Kamla and the story developed by these witnesses is not trustworthy, and the learned Sessions Judge has erroneously based the conviction of the accused/appellant on their evidence. 12- In order to appreciate the argument advanced by the learned defence counsel, it is significant to go through the evidence of the witnesses of fact examined by the prosecution in the case. 13- P.W.1, Amba Dutt Joshi, is the father of deceased Harish Chandra Joshi (deceased). He has lodged the written report Ext. Ka.1 at the Patwari Circle Gagarigoal. He has deposed that the information of the incident was received by him on 12th October, at 11-12 noon at Haldwani. The information was communicated to him by Kishore Singh of his village. After receiving the information he went to Baiznath Hospital and before his reaching there, Harish and Sundar had already died. He further deposed that Meena and Kamla were referred to Almora Hospital for treatment. He also deposed that then he went to his house where he was informed that in the morning Harish 6 Chandra, Kamla and Sundar had gone to their fileds to batter the paddy crop. Girish Chandra had also invited them. They had returned home to participate in the Puja at the house of Girish Chandra. Then this witness was told about the incident. This witness has deposed that on 22nd November, 2005 accused came to his house and started weeping and confessed his guilt. The accused told him that he had mixed the poison in the water-garican, due to which Harish and Sundar have died, but Meena and Kamla survived. This witness further deposed that accused had told him that he had narrated this fact to Kailash Joshi also. But the prosecution did not examine this Kailash Joshi as a witness. Police also did not interrogate him. In his cross-examination this witness has deposed that he had no suspicion over any one upto 13-14th October and when on 22nd November he came to know about the incident from the accused, then he had narrated whole things to the police. This witness also deposed in his cross examination that police had taken his statement on 16th October and then he had told to the police that he had no suspicion over any one. He also deposed that when he came to know about the incident of administering poison by the accused on 22nd November, he had told this fact to the police verbally, but no written report was given by him. He also stated that he had also informed this fact to the village people. He also admitted this fact that the police did not take his statement after coming to know about this fact that accused/appellant had confessed his guilt before him. This statement of this witness is quite unnatural and does not inspire confidence. If the accused had confessed his guilt 7 before him on 22nd November, then he would have certainly lodged a written complaint with the Patwari and if he had narrated this fact to the police verbally, then the police should have recorded the statement of this witness and should have started the investigation in that direction but all this is missing in the case. In his cross-examination this witness further deposed that the bottle of navan was recovered from the room of Harish, adjacent to the kitchen, whereas according to the I.O. the accused had escorted him to the place where he had thrown the bottle but no recovery of any such glass bottle or glass pieces were made by the I.O. Therefore, the statement of this witness does not inspire confidence and is not believable. 14- P.W.2, Km. Meenakshi Joshi, is the daughter of deceased Harish Chandra Joshi. At the time of recording her statement she was 13 years of age. She has made the statement that in the moth of October she and her mother Smt. Kamla Joshi had fallen ill. She had gone to take water from the water-tape. At the first instance she and her brother Sundar had gone to take water. Then she alone went to take water. When she returned after taking water, accused Bhairav was getting down from his stairs, coming to her house. Bhairav came to her house and he demanded a glass of water, she kept the water-gallan at the wall and went at the chauk to take the glass and when she came back at the door, she saw that Bhairav was mixing a small bottle in the water and then he threw the bottle at the place where cattle were tethered. When she met with Bhairav with the glass of water then he told her, that now he does not want water and went 8 away. She further deposed that thereafter they took breakfast. After taking breakfast her father and brother went in the Puja, her mother remained at the house. When she went in the Puja she became unconscious. Thereafter she opened her eyes at Almora Hospital. This witness also deposed that her treatment was done at Almora, Haldwani and Delhi and she came to her house in new year after the treatment. When she came to her house in the new year then Patwari took her statement after 8-9 days. This witness further deposed that when they were taking breakfast she had served water to her brother, mother and father from the gallan in which she had taken water. She herself also drank water from that gallan. The above statement of this witness seems to be a tutored one. According to the case diary her statement was recorded by the I.O. on 19-10-2005. Now she had denied the fact that a lady had met her in the way when she was taking water. Statement of this witness was also noted on 11.1.2006 in the case diary. In that statement there is no mention of this fact that accused Bhairav was seen mixing poison in the water, by this witness. There is also no mention in her above statement that she had seen the accused throwing the small bottle to the place where cattle were tethered, after mixing the substance of the bottle in the water. This witness also shown her ignorance about other part of prosecution case. In view of above we find that there are material contradiction in the statement of this witness with the statement given to the I.O. Before the I.O. she has not disclosed this fact at all that her grandfather accused Bhairav had mixed poison in the water-gallan but before court she has developed a new theory of mixing poison by 9 accused Bhairav in the water-gallan. Therefore, this minor witness seems to have given the statement before the court on the teaching by some one and no reliance can be placed on such a evidence of this witness. 15- The another witness of fact is P.W.5, Smt. Kamla Devi. In her examination-in-chief this witness has stated that the incident pertains to 12th October 2005. She had gone to the field at 6-00 A.M. Her husband had also come with her. At about 10.00 A.M. when they returned to home, her husband asked her to prepare breakfast. Then she prepared breakfast and served it to her family members. Water was served by Meenakshi. After breakfast her husband and children went in Puja and she remained at her house. Thereafter wife of accused told her that Meenakshi was vomiting. When she went there she also became unconscious and she regained conscious at Almora Hospital. This witness also deposed that on the day of accident accused had demanded water from her daughter and when her daughter went in the kitchen to take water for the accused, the accused mixed the poison in the water from a small bottle. Thereafter she had given a written report, Ext. Ka.22, to the S.D.M. In the cross-examination this witness has stated that when Meenakshi told her that Bhairav Dutt mixed poison in the water, thereafter she had moved the application to the S.D.M. but she did not mention this fact in that application that accused Bhairav had mixed the poison in the water. This witness has deposed that Patwari had taken her statement only once. She also stated in her cross-examination that neither 10 she nor her daughter Meenakshi told the factum of mixing poison by Bhairav to any one. She also admitted this fact that she had given statement before Patwari that she has no suspicion on any one. This witness also denied her statement given to Patwari that her daughter Meena was telling her that when she was brining water, a lady met her in the way and asked her are you taking water and for some time Meena remained standing with a that lady, but she could not name that lady. It is very strange that in the application, Ext. Ka.22, moved by Smt. Kamla, this fact has not been mentioned that accused Bhairav had mixed poison in the water, when she had come to know this fact from her daughter. Perusal of Ext. Ka.22, shows that it is a typed application and in this application it has been mentioned that Km. Meenakshi is victim of the incident and now she is fit to give her statement. Thereafter the I.O. took her statement on 11.1.2006 and in that statement recorded by the I.O. this winess has not stated the factum of mixing poison by accused Bhairav Dutt in the water and thereafter throwing the small bottle towards the tethering place of cattle and for the first time the witness has deposed this fact before the court in her on oath statement. 16- Thus, we find that the statement of P.W.2, Km. Meenakshi, recorded by the I.O. twice have different version. The second statement was recorded after about three months, which creates a doubt in the statement of this witness. It appears that subsequent statement of this witness is tutored one. This witness has also deposed before the court that she has seen Bhairav Dutt mixing up a small 11 bottle in the water and throwing that bottle in the tetharing place of the cattle, but statement of Smt. Kamla, P.W.5, who is moher of Km. Meenakshi, gives a different version, in which she has stated that- ^^ ehuk us [ ksr l s ?kj vkdj uk’r k dj us l s i gys eqfYt e Onkj k t gj feykus okyh ckr ugha cr k; h] feyk; k gksr k r ks ge i kuh ugha i hr saA^^ This witness has stated before the Patwari that she does not have any doubt against any one. The statement of Smt. Kamla Devi P.W.5, is also not consistent. She has also stated in the cross-examination that in the application moved by her she did not mention that Bhairav Dutt administered the poison in the water. 17- The another aspect of this case which makes the prosecution case doubtful, is that P.W.1, Amba Dutt Joshi says that he came to know about mixing the poison in the water by accused on 22.11.2005 when Bhairav Dutt made extra-judicial confession before him. The statement of this witness finds jolt in the case, if it is read in the light of the statement of P.W.8, Tribhuwan Singh Bora, who investigated this matter, as he has stated in his deposition that on 17.11.2005 he received a letter from Smt. Kamla Devi in his office, in which Kamla Devi had suspected Bhairav Dutt. We are unable to understand as to why Kamla Devi remained silent in her house for about 5 days, i.e. 22.11.2005 when the matter was disclosed to Amba Dutt, P.W.1. The story advanced by the prosecution that P.W.1, Amba Dutt came to know for the first time by the extra-judicial confession made by Bhairav Dutt with regard to the mixing of poison in the water appears to be doubtful. The evidence of extra-judicial confession itself is very weak and in this case 12 whatsoever the evidence of extra-judicial confession is available on record, the same is not corroborated by any other evidence. We also fail to understand that what was the necessity of advancing extra- judicial confession when the matter had come into light on 17.11.2005 on the basis of the report given by Smt. Kamla Devi to Patwari. Further, we are of the view that merely on the basis of this type of evidence pertaining to extra-judicial confession no conviction can be warranted. 18- The other circumstances in this case are absolutely silent. The prosecution could not establish the chain of circumstances in order to bring home the guilt of the accused. 19- The strong circumstance which goes against the prosecution is the motive. The prosecution has failed in establishing any motive available with the accused. Rather the witnesses produced by the prosecution have stated that accused Bhairav Dutt had good relations with the complainant and other family members. No animus whatsoever has been put forward by the prosecution in this case. We also fail to understand that in absence of any motive why the accused will play a foul play. The prosecution has of course made a futile attempt in bringing this case within the purview of direct evidence by producing P.W.2, Km. Meenakshi, but the direct evidence does not appear to be convincing at all and other surrounding circumstances also do not establish the guilt of the accused beyond reasonable doubt. Had the case been of direct evidence, then the question of motive would have been only academic and then it would 13 not have any relevance, but since this is a case of circumstantial evidence and the direct evidence, whatsoever has been adduced by the prosecution, does not appear to be convincing, then the motive is going to play an important role, but the evidence itself produced by the prosecution do not indicate anywhere that any motive was available with the accused for committing this crime. Rather, the prosecution evidence has given a different picture by suggesting that the accused had good relations with the complainant and other family members including the victims. 20- For the reasons stated above we are of the definite view that the prosecution in this case has utterly failed in establishing the guilt of the accused/appellant. The trial court has fell in error in convicting and sentencing the accused/appellant for the offences U/Ss 307 and 302 I.P.C. 21- Accordingly, the appeal is allowed. The impugned judgment and order of the trial court convicting and sentencing the accused/appellant Bhairav Dutt for the offences U/Ss 307 and 302 I.P.C. is set aside and the accused/appellant is acquitted of the charges levelled against him. 22- The accused/appellant is in jail. He shall be released forthwith, if not wanted in any other connection. (Nirmal Yadav, J.) (B.C. Kandpal, J.) ISB