HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Jail Appeal no. 259 of 2006 Kannu. ------- Appellant. Versus The State. ------- Respondent Sri J.S. Virk, Amicus-Curiae for the accused/appellant, Sri S.S. Adkikari, Addl. Govt. Advocate for the State. Dated November 26, 2009 Hon’ble B.C. Kandpal, J. Hon’ble V.K. Bist, J. [Per-Hon’ble B.C. Kandpal, J. (Oral)] This jail appeal has been filed by the convict/ appellant Kannu, through Superintendent of Jail u/s 374 of The Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.) against the judgment and order dated 07.05.2004 passed by the Addl. Sessions Judge/I Fast Track Court, Nainital in Session Trial No. 92 of 2003 u/s 302 I.P.C. thereby convicting the accused/appellant for the offence punishable u/s 302 I.P.C. and sentencing him for life imprisonment and a fine of Rs. 1,000/- and in default of payment of fine further simple imprisonment for two months was awarded. 2. The prosecution case, in brief, is that on 14.04.2004 at 8:10 a.m. the accused/appellant Kannu lodged a report at police station Kaladhungi, district Nainital that his wife Smt. Meera had gone alongwith one Ram Singh (PW-5) S/o Nanku r/o Choonakhan on 12.04.2003 at 12:00 noon, but she did not return back. When he made search of his wife he found her dead body inside the jungle of Choonakhan. He suspected that Ram Singh has murdered his wife, as his son and others have seen his wife going together with Ram Singh. In this regard a first information report in case crime no. 141/2002 u/s 302 2 I.P.C. was lodged at police station Kaladhungi against Ram Singh the Chik F.I.R. is Ext. Ka- 1 on the record. An entry was made in the General Diary, a copy of the G.D. is Ext. Ka- 2. The S.H.O. Kaladhungi P.K. Shah (PW-1) took the investigation of the case in hand. During investigation, the I.O. prepared the site plan (Ext. Ka- 3) where the dead body was laying. During investigation when the inquest on the dead body of the deceased Meera was being prepared, the accused/appellant Kannu confessed his guilt and he also submitted an application (Ext. Ka- 4) mentioning therein that earlier he lodged a report in connection with the murder of his wife Smt. Meera implicating Ram Singh but now in the presence of Deewan Chandra (PW-4), Kailash Chandra (PW-3), Makhan Lal (PW-2) and the S.H.O. he intends to confess his guilt. As per the prosecution case the accused/appellant Kannu while confessing his guilt has disclosed that his wife had illicit relations with Puran Singh, Devendra and others, on account of which he left his house and went to Moradabad. After a period of 6-7 months when he returned back he did not find any improvement in her habits. He was being taunted by the people. Aggravated with all the events; on 12.04.2003 between 12:00-1:00 p.m. when her wife was slept, he chopped her neck with a ‘Gandasa’ due to which the bed became bloodstained which he burnt and drained out. The accused said that the Patal/ ‘Gandasa’ was inside his house, which he can recover. 3. The Investigating Officer made an entry of the confession application of the accused/appellant in Ext. Ka- 5. During the investigation, the bloodstained ‘Gandasa’ was recovered and a Fard (Ext. Ka- 6) was 3 prepared in this regard. Ext. Ka- 7 is the site plan of the recovery of bloodstained ‘Gandasa’. Ext. Ka- 8 is the Fard of bloodstained and plain soil taken by the I.O. from the jungle. The bloodstained ‘Gandasa’, the bloodstained soil and plain soil were sent to the Forensic Lab, Agra through Ext. Ka- 9 for chemical examinations. Ext. Ka- 10 is the entry made in the G.D. no. 24 dated 14.06.2003. Ext. Ka- 11 is the report of the Scientific Officer, Forensic Lab, Agra. Ext. Ka- 13 is the written report lodged by the accused/appellant Kannu against Ram Singh. Ext. Ka- 14 is the inquest report prepared on the dead body of the deceased. The I.O. prepared Form no. 13 which is Ext. Ka- 15 on record. He also wrote the letter (Ext. Ka- 16) to C.M.O., S.S.J. Base Hospital, Haldwani. Ext. Ka- 17 is the sketch of dead body. Ext. Ka- 18 is the specimen seal. Thereafter, the dead body of Meera was sent for postmortem. 4. On 14.04.2003 at 2:30 p.m. Dr. B. Pant, Medical Officer, S.S. Jeena Base Hospital, Haldwani has conducted autopsy on the body of Meera. The doctor found that the body was in a sealed cloth and the seal was found intact and matched with the sample seal. The doctor found an incised wound measuring 16cm. x 14cm. through and through on the neck of the deceased. The cause of death was due to haemorrhage and shock as a result of ante mortem injury. 5. The Investigating Officer recorded the statement of witnesses and after completing the investigation, filed charge sheet (Ext. Ka- 12) against the accused/appellant Kannu u/s 302 I.P.C. 4 6. The learned Special Judicial Magistrate, Nainital on receipt of the charge sheet, after giving necessary copies to the accused, appears to have committed the case to the Court of Sessions for trial on 16.08.2003. 7. The learned Sessions Judge, Nainital vide order dated 10.09.2003 transferred the Sessions Trial to the Court of Addl. Sessions Judge/I F.T.C., Nainital for hearing and disposal. 8. The learned Addl. Sessions Judge/I F.T.C., Nainital after hearing the parties on 23.09.2003 framed the charge of offence punishable u/s 302 I.P.C. against the accused/appellant Kannu. The charge was read over and explained to the accused who pleaded not guilty and claimed to be tried. 9. In order to prove its case, the prosecution has examined PW-1 S.H.O. Pramod Kumar Shah, PW-2 Makhan Lal, PW-3 Kailash Chandra, PW-4 Deewan Chandra and PW-5 Ram Singh. 10. The oral and documentary evidence was put to the accused in the form of questions u/s 313 Cr.P.C. who, in reply, denied the allegations made against him and has stated that he has been falsely implicated in the case. The accused did not produce any oral or documentary evidence in his defence. 11. The Trial Court, after having considered the entire material available on record and hearing to the learned counsel for the parties, convicted the accused/appellant for the offence punishable u/s 302 I.P.C. and sentenced 5 him to life imprisonment. The Trial Court further awarded a fine of Rs. 1,000/- on the accused/appellant and in default of payment of fine directed that the convict/appellant shall have to undergo simple imprisonment for further two months vide judgment and order dated 07.05.2004. 12. Feeling aggrieved by the aforesaid judgment and order, the accused/ appellant has preferred this appeal from the jail through Jail Superintendent. 13. Heard Sri J.S. Virk, the learned Amicus-Curiae on behalf of the convict/appellant and Sri S.S. Adhikari, the learned Addl. Govt. Advocate and perused the record. 14. The record reveals in this case that four circumstances are there against the convict/appellant. This is a case which rests on circumstantial evidence. No direct evidence with regard to the commission of crime is available on record. The accused himself lodged the first information report previously before the police against one Ram Singh and when Ram Singh was being interrogated by the police, the accused, as has been alleged by the prosecution, himself confessed his guilt by deposing before the police and in the presence of the witnesses that he himself murdered his wife for the reason that she was a lady of easy virtue. The prosecution has tried to bring forward the following circumstances in order to bring the guilt of the accused/appellant to home and these circumstances are that it was the confession made by the accused himself with regard to the commission of crime that he murdered his wife for the reason that she was a lady of easy virtue. Secondly, the 6 ‘Gandasa’ which was used in the commission of crime was recovered on the pointing out of the accused/appellant. Thirdly, the ‘Gandasa’ was having bloodstained and on the basis of the report of the Chemical Examiner, the bloodstained was of human being. Fourthly, the dead body was also recovered on the pointing out of the accused/appellant. On the analysis of the aforesaid circumstances and on the basis of the evidence available on record, we come to the conclusion that all these circumstances are on the basis of hypothesis only. The circumstances are not based on any cogent and reliable evidence. 15. It is true that as per the prosecution case, the accused confessed his guilt before the police and in the presence of three witnesses, namely, Makhan Lal, Kailash Chandra and Deewan Chandra PW-2, PW-3 and PW-4 respectively. All these witnesses were produced by the prosecution but they have not supported the prosecution case as they have stated in their deposition that during the course of investigation accused Kannu was with them. The police, after conducting the inquest on the dead body, took Kannu, Ram Singh (Makhan Lal himself), Deewan Chandra and Kailash Chandra) to the police station. Makhan Lal (PW-2) has further stated that Ext. Ka- 4 was written at the police station and whatsoever was scribed in Ext. Ka- 4, it was on the saying of the police. It is worthy to mention here that Ext. Ka- 4 is the document which indicates that Kannu confessed his guilt, related to the commission of crime, before the police for the reason that the deceased was a lady of easy virtue. Therefore, the confession part, as has been alleged by the prosecution in the instant case, becomes without any relevance. 7 16. Another important aspect in this case is that Ext. Ka- 4 itself indicates that after confessing the guilt, the accused disclosed the police that he can make the ‘Gandasa’, used in the commission of crime, recovered and further the other documents Ext. Ka- 5 and Ext. Ka- 6 indicate that the bloodstained ‘Gandasa’ and dead body were recovered on the pointing out of the accused/ appellant. Again the witnesses shown in these two documents Ext. Ka- 5 and Ext. Ka- 6, i.e. relating to the recovery of the dead body as wall as the bloodstained ‘Gandasa’, are Makhan Lal, Kailash Chandra and Deewan Chandra. As we have already indicated above that these three witnesses again do not support the prosecution case and only for this reasons these witnesses were declared hostile. These witnesses have stated that they cannot say with regard to the character of the deceased. They have also stated that these two documents i.e. Ext. Ka- 5 and Ext. Ka- 6 were written at the police station. These witnesses have also stated that the ‘Gandasa’ was not recovered in their presence. These witnesses have also stated that they cannot say as to who murdered the wife of the accused/appellant Kannu. Therefore, on the basis of the aforesaid evidence it further become quite clear that as far as the recovery of the ‘Gandasa’ on the pointing out of the accuse is concerned, the same looses its relevance in the absence of any cogent and reliable evidence available on record. 17. As far as the recovery of the dead body of deceased Meera is concerned, it is true that the dead body was recovered on the pointing out of the accused from the jungle, but this sole circumstance cannot connect the accused with the commission of crime of murder. It 8 became natural that when the wife of the accused did not return to her house, there was some anxiety to know the whereabouts of his wife and he started searching of his wife resulting therewith he found the dead body of his wife in the jungle and he accordingly informed the police on 14th April, 2003. The wife of the deceased was missing from 12th April, 2003, therefore it became quite natural that when the wife of the deceased did not return to her house for two days then he must have started searching of his wife and when he found the dead body of his wife in the jungle he informed the police immediately. The post mortem report conducted on the body of the deceased also indicate that Smt. Meera died two days before the date of the autopsy on her body. Therefore, the post mortem report also corroborates the story that Smt. Meera died at sometime on 12.04.2003. As we have already observed above that this cannot be a ground to connect the accused with the commission of crime of Smt. Meera, specially when the other circumstances do not connect the accused with the commission of crime of murder of Smt. Meera. 18. For the reasons stated above, we are of the view that the prosecution has utterly failed to establish the guilt of the accused and, therefore, we come to the conclusion that there is no plausible and cogent evidence available on record which may connect the accused/appellant with the commission of crime of murder of Smt. Meera. 19. Accordingly, we allow the appeal, set-aside the judgment and order dated 07.05.2004 passed by the learned Addl. Sessions Judge, Nainital thereby convicting and sentencing the accused/appellant Kannu for the 9 offence punishable u/s 302 I.P.C.. The convict/appellant Kannu is accordingly acquitted of the charge levelled against him u/s 302 I.P.C. (V.K. Bist, J.) (B.C. Kandpal, J.) 26.11.2009 NCM: