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2017 Supreme(UK) 291
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Rajiv Sharma, Sharad Kumar Sharma, JJ.
Yogesh Kumar – Appellant
Versus
State – Respondent
Criminal Jail Appeal No. 28 of 2012
Decided On : 14-09-2017
For the Appellant : Mr. S.R.S. Gill.
For the Respondent: Mr. Amit Bhatt.
The main legal point established in the judgment is the admissibility of disclosure statement and the discovery of fact pursuant to disclosure, as clarified by the Hon’ble Supreme Court in the case of Charandas Swami vs. State of Gujarat and Others.
Headnote:
Discovery of Fact - Criminal Law - Section 363, 366-A, 302, 120-B, 363, 201 of IPC - The judgment discusses the discovery of fact pursuant to disclosure, the admissibility of disclosure statement, and the legal position clarified by the Hon’ble Supreme Court in the case of Charandas Swami vs. State of Gujarat and Others. The court emphasized the importance of the information given by the accused exhibiting knowledge or mental awareness of information as to its existence at a particular place, and the admissibility of information distinctly relating to the fact discovered.
Fact of the Case:
The case involves the conviction of the appellant for various offences under the Indian Penal Code (IPC) related to the abduction and murder of a minor girl. The prosecution's case is based on the report filed by the father of the victims, witness testimonies, and the recovery of the dead body.
Finding of the Court:
The court found the appellant guilty based on the testimonies of witnesses, including the minor victim's sister, and the recovery of the dead body. The court also considered the admissibility of the disclosure statement and the legal position clarified by the Hon’ble Supreme Court in the case of Charandas Swami vs. State of Gujarat and Others.
Issues: The key issues revolve around the sufficiency of evidence, admissibility of witness testimonies, and the discovery of fact pursuant to disclosure.
Ratio Decidendi: The court relied on the testimonies of witnesses, including the minor victim's sister, and the recovery of the dead body to establish the guilt of the appellant. Additionally, the court considered the legal position clarified by the Hon’ble Supreme Court in the case of Charandas Swami vs. State of Gujarat and Others regarding the admissibility of disclosure statement and the discovery of fact.
Final Decision: The appeal was dismissed, and the appellant was ordered to serve out the sentence awarded by the trial court.
Rajiv Sharma, J.
1. This jail appeal is directed against the judgment and order dated 27.06.2012, rendered by learned VIth Additional Sessions Judge, Haridwar, in Sessions Trial No. 218 of 2010, whereby the appellant, was charged with and tried for the offences under Section 363, 366-A, 302, 120-B, 363 and 201 of IPC. The appellant was convicted and sentenced to undergo life imprisonment under Section 302 of IPC and to pay a fine of Rs. 2,000/- and in default of payment of fine to undergo two months of additional imprisonment. He was also convicted and sentenced to undergo two years rigorous imprisonment under Section 201 of IPC and to pay a fine of Rs. 1,000/- and in default of payment of fine to undergo one month simple imprisonment. He was also convicted and sentenced to undergo three years rigorous imprisonment under Section 363 of IPC and to pay a fine of Rs. 1,000/- and in default of payment of fine to undergo one month simple imprisonment. He was further convicted and sentenced to undergo five years rigorous imprisonment under Section 366-A of IPC and to pay a fine of Rs. 2,000/- and in default of payment of fine to undergo two months simple imprisonment. All the sentences imposed under the aforesaid sections were directed to run concurrently. The appellant was acquitted for the offence under Section 120B of IPC. Co-accused Kishan was acquitted of the charges framed against him under the aforesaid sections.
2. The case of the prosecution, in a nutshell, is that PW-1 Chainshuk has filed a report to the effect that his two daughters namely Kamlesh and Vimlesh has gone to eat community food on 19.03.2010. His younger daughter Vimlesh came back at 9:00 PM. She told him that Kamlesh was taken away by some boy. They searched for her. Her age was 10 years. Thereafter, the FIR was registered and the investigation was carried out and the challan was put up after completing all the codal formalities. The dead body was recovered. It was sent for postmortem examination. According to opinion of doctor, the deceased died due to asphyxia. The prosecution has examined as many as nine witnesses in its support. The statement of appellant was also recorded under Section 313 of Cr.P.C. He has denied the case of the prosecution. He was convicted and sentenced as noticed hereinabove. Hence, this jail appeal.
3. Learned Amicus Curiae for the appellant has vehemently argued that the prosecution has failed to prove its case beyond reasonable doubt against the accused-appellants. Learned counsel appearing on behalf of the State has supported the judgment dated 27.06.2012.
4. We have heard learned counsel for both the parties and perused the judgment and record carefully.
5. PW-1 Chainsukh has deposed that on 19.03.2010, his daughters namely Kamlesh and Vimlesh had gone to eat community food at 8:00 PM. His younger daughter Vimlesh came back at 9:00 PM. She told him that Kamlesh was taken away by some boy.
6. PW-2 Baburam has deposed that police has taken him on 21.03.2010 in the jeep. The appellant was also with them. He was boarded in the jeep. The appellant took them to Rajaji Park. They were following him. The appellant got the dead body recovered after walking 200 feet. The dead body was taken into possession.
7. PW-3 Km. Vimlesh is the material witness, though she is minor but her statement does inspire confidence. According to her, few years back, she along with her sister Kamlesh was going to take community food. Her maternal uncle namely Yogesh was following them. He was accompanied by another boy. He took her elder sister towards forest. She narrated the incident to her father and mother. She recognized the appellant in the Court.
8. PW-4 S.I. Rajendra Singh has prepared the panchayatnama of dead body of Kamlesh. He has taken the photographs of the dead body.
9. PW-5 Pankaj Devrani was the Investigating Officer. He prepared the spot map. The accused-appellant was arrested. He disclosed his identity. He confessed his crime and told that
