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2012 Supreme(UK) 105
UTTARAKHAND HIGH COURT
Barin Ghosh and U.C. Dhyani
Criminal Appeal No. 41 of 2011
GAURAV – Appellant
Versus
STATE OF UTTARAKHAND – Opposite Party
Decided on : 29.03.2012
For the Appellant : Mrs. Pushpa Joshi, Sr. Adv., assisted by Mr. Amit Kapri, Adv.
For the Respondent:Mr. Amit Bhatt. Additional Government Advocate
Headnote:Criminal Trial — Offence of murder and loot — Conviction for — According to the prosecution, informant wrote in FIR that driver/ appellant ‘A’, cleaner and salesman/deceased proceeded on 11.01.2002 at 3:30 p.m. from Rudraprayag to Kotdwar on a truck — But, present appellant ‘B’ was not named by him in the complaint — No document was filed by informant P.W.1 before the trial court — P.W.1 lodged the report only after the dead body of salesman was found — Held — Unlike the names of other two employees, the informant did not name the present appellant in FIR — But, only that a cleaner was also there — Present appellant ‘B’ was not held out to be on truck by name — Great lacuna in the prosecution story — Thus, criminal appeal preferred on behalf of appellant ‘B’ allowed — Conviction and sentence awarded to the appellant ‘B’ by the learned trial court set aside. (Paras 10 to 15)
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[Per: Hon’ble U.C.-Dhyani, J.]
In the instant case, P.W.1 Kamal Gupta lodged complaint (Ext.Ka-1) against accused persons on January 12, 2002. The same was registered as case crime no. 24/2002 under Sections 394, 302, 201 IPC by P.S. Lansdowne, District Pauri Garhwal on 12.01.2002 at 8:00 a.m. The occurrence took place on 11.01.2002 at unknown time. The distance between place of occurrence and P.S. Lansdowne was 27 kilometres. Hence, there appeared to be no delay in lodging chik FIR (Ext.Ka-9).
2. Prosecution story was narrated by P.W.1 Kamal Gupta before the trial court. He said amongst other things, that he was the Director/ Proprietor of M/s Shiv Dayal Gupta Agency Pvt. Ltd. Kotdwar. The said firm owned a truck no. UP06 5774. On 08.01.2002, Sudhir and appellant Gaurav were deputed as driver and cleaner on the said truck. Sudhir and appellant Gaurav were present before the trial court when P.W.1 Kamal Gupta deposed. Informant said in his examination-in-chief that the salesman of his firm was victim Naresh Agarwal. On 08.01.2002 the truck was sent for sale of various articles from Srinagar to Gopeshwar via Rudraprayag. Salesman Naresh Agarwal, driver Sudhir and cleaner Gaurav were sent with the truck. On 11.01.2002, victim Naresh Agarwal rang-up the informant from Rudraprayag that they were proceeding (to Kotdwar), but employees did not reach Kotdwar on 11.01.2002. On 12.01.2002 another driver Virendra Singh of the same firm informed proprietor of the firm that truck no. UP06 5774 was found by him near the bridge of river Kho in suspicious circumstances. Informant went to the bridge and found truck in damaged condition. The lock of cash box was broken. There was no cash inside it. Informant made a search for the corpus of driver, cleaner and salesman. At Krainkhal informant found dead body of cashier Naresh Agarwal. Driver and cleaner were not found. He suspected that driver and cleaner have looted the cash. P.W.1 Kamal Gupta proved complaint Ext.Ka-1. Then he accompanied police party. He further proved recovery memo of cash memo and diary (Ext.Ka-2). Truck was given in his supurdagi vide Ext.Ka-3. He obtained cash memo and diary from the Investigating Officer for accounting and payment. Accused persons looted a sum of Rs. 3,66,272.50 after killing Naresh Agarwal. P.W.1 Kamal Gupta also proved diary (Material Ext. 1 ) and cash memo (Material Ext.2). He also proved the application (Ext.Ka-4) which was addressed to the Station Officer for obtaining diary and cash memo. He also proved accounts presented before S.O. Lansdowne (Ext.Ka-5).
3. In his cross-examination, he admitted that in Material Ext.2 (cash memo) names of seller and purchaser were not mentioned. Cash memos of 01.01.2002,09.01.2002 and 10.01.2002 were not prepared. Name of victim was not mentioned in Material Ext.1 (diary). He admitted that it is not clear from diary (Ext. 1 ) whether victim received any money or not? Sudhir was deputed on the truck since last days of November, 2001. Appellant Gaurav was deputed on the said truck since December 2001. Names of these two appellants were recorded in the Labour Office as well as the Register (which was not produced before the court on the day of deposition but was offered to be produced in the court on the next date. This said registered was never produced). He admitted that Rs. 3,66,272.50 were neither mentioned in Ext.1 nor in Ext.2. Victim Naresh Agarwal carried Rs. 4,12,151.00 along with him as per statement Ext.5. He admitted that the goods were bought by victim on 08.01.2002. The description of the same was not presented before the court. He admitted that he did not
see the occurrence. Ext.Ka-2 and Ext.Ka-3 were prepared near the bridge. A suggestion was put forwarded to the informant that the appellant was not in his employment as conductor to which the informant denied. He also denied that the appellant was not the culprit.
4. P.W. Kamal Gupta did not produce any document of the firm to show tha
