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2015 Supreme(UK) 103
UTTARAKHAND HIGH COURT
ALOK SINGH and SERVESH KUMAR GUPTA, JJ.
Sudhir Kumar Saxena – Appellant
Vs.
State of Uttarakhand – Respondent
Criminal Appeal No. 267 of 2010
Decided on : 09/04/2015
Headnote:Evidence Act, 1872, Sec. 3 - Last Seen Evidence - Wife of deceased stated that deceased left house along with accused in morning on day of occurrence - Other prosecution witnesses stated that they had seen deceased and accused consuming liquor in morning - But, as per doctor deceased could have died in late evening of day of occurrence - Held none of witnesses had stated that soon before death of deceased he was seen in company of accused - The recovery memo did not bear signature of accused - No independent public witness of alleged recovery was present - Prosecution could not establish its case beyond reasonable doubt - Accused acquitted. (Paras 11, 23)
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Alok Singh, J.
Present appeal is preferred against the judgment and order dated 06.10.2010 passed by learned Sessions Judge, Udham Singh Nagar, in Sessions Trial No.316 of 2007, whereby the appellant was held guilty for the offence punishable under Section 302 of IPC and was awarded life imprisonment and fine of Rs.5,000/-.
2. Brief facts of the case, inter alia, are that PW1 Babli Bhan submitted report to the Police Station Kichha on 27.9.2007 stating therein that her servant Chhotey Lal informed her that some unidentified dead body was laying in the agricultural field of Harendra Mann. On the report of PW1, case crime No. 263 of 2007 u/S. 302, IPC was got registered in P.S. Kichha, District U.S. Nagar. Thereafter on 28.9.2007, Smt. Munni (PW3) submitted one application before the P.S. Kotwali Kichha stating therein that her husband Shamshad (deceased) quarrelled with the appellant/accused Sudhir about 3-4 days before for the settlement of account. Therefore, appellant was annoyed with her husband Shamshad (deceased); in the morning of 26.9.2007, Sudhir came to the house of deceased and took Shamshad with him on the pretext of some work stating that they would come back within 10 minutes, however they did not come back even after expiry of one hour; on this, PW3 went to the gate to enquire about her husband; PW5 Rais Ahmed and PW4 Zahiruddin met her there and informed her that Shamshad (deceased) went somewhere else with appellant Sudhir in a Matador; when her husband Shamshad did not return in the evening, she started searching for him, however, in vain; on 28.9.2007, having read news in the newspaper that one dead body was recovered from the Kichha river, they went to the mortuary of the hospital; she identified the dead body of Shamshad (deceased). It is further written in the application that she (PW3) had suspicion that her husband might have been killed by the appellant Sudhir with the help of his friend.
3. Dead body of Shamshad (deceased) was taken into custody by the police after preparing the inquest report on the spot on 27.9.2007 and it was sent for post-mortem. Post-mortem was conducted on the dead body of Shamshad (deceased) on 29.9.2007 at 12:30 p.m. by Dr. R.K. Sinha (PW12); as per the post-mortem report and statement of PW12, cause of death of Shamshad (deceased) was due to head injuries sustained by him.
4. PW15 Sub-Inspector K.R. Arya arrested the appellant Sudhir on 06.10.2007. Appellant confessed his guilt before the police and stated that in the evening of 26.09.2007, he had killed Shamshad by assaulting him with Patal and he could facilitate the recovery of Patal; then he took the police to his house and after taking out the Patal, he handed over the same to the police party. His pant, shirt, underwear and under-shirt were also taken into custody by the police party.
5. Having investigated the matter, charge-sheet was submitted against the appellant and after committal, charge was framed against him for the offence punishable u/S. 302, IPC.
6. To prove the prosecution story, the prosecution has proved PW1 Smt. Babli Bhan, PW2 Chotey Lal, PW3 Smt. Munni, PW4 Zahiruddin, PW5 Rais Ahmed, PW6 Raju alias Riyaz Ahmed, PW7 Afjal, PW8 Ashfaq Hussain, PW9 Zamil Ahmed, PW10 H.C. Chani Ram, PW11 Layik Ahmed, PW12 Dr. R.K. Sinha, PW13 Nasir Ahmed, PW14 Constable Manohar Singh and PW15 S.I. K.R. Arya.
7. Thereafter the statement of the accused/ appellant Sudhir was recorded u/S. 313, Cr.P.C.
8. Having perused the record, learned Trial Court was pleased to hold the appellant guilty for the offence punishable u/S. 302, IPC and was further pleased to award life imprisonment with fine of Rs.5,000/- against the appellant. Feeling aggrieved, appellant has preferred the present appeal.
9. We have heard Ms. Geeta Parihar, Advocate for the appellant and Mr. D.K. Sharma, Additional Advocate General, assisted by Ms. Sangeeta Bhardwaj, Brief Holder for the State and have carefully perused the record.
10. There is no eye-witn
