VINOD AND ANOTHER Vs. STATE OF UTTARAKHAND

JUDGEMENT

(1.) In the instant case, Surendra Singh died. The death of Surendra Singh was homicidal. As reported in the post-mortem report submitted by Dr. O.P. Sharma (PW6), victim received in total eleven injuries. Seven of them were incised wounds, one lacerated wound, two contusions and one abraded contusion. The abraded contusion was located in the neck. The lacerated wound and three incised wounds were located in the head region. PW6 opined that the cause of death was ante-mortem head injuries received by the victim. In course of tendering evidence, PW6 held out that the head of the victim was almost severed from the body. Blood, brain and other materials were oozing out and even in accordance with the evidence of Sethpal (PW2), the dead body was beyond recognition. In respect of this death, a First Information Report was lodged by Mam Chand (PW1) on 10 th June, 1994 at 3.30 P.M. In the First Information Report, it was stated that the death of the victim was caused on 10 th June, 1994 at about 2.30 P.M. by appellants Vinod and Kulveer alongwith Kishore and Dhara. It was stated that the brother of the victim Yashpal also had a hand in the death of the victim. After completion of the investigation, a charge-sheet was filed against five accused persons, including appellants Vinod and Kulveer. The remaining three were Dhara, Yashpal and Kishore. Since Dhara, in course of trial, absconded, his case was separated. The trial, accordingly, proceeded against appellants Vinod and Kulveer as well as against Yashpal and Kishore. By the judgment under appeal, Yashpal and Kishore have been exonerated, whereas Vinod and Kulveer have been convicted for offences punishable under Section 302 read with Section 149 of I.P.C. and Section 120B of I.P.C. They have been appropriately sentenced. PW1 held out that he was not a witness to the incident, but gathered, what had been stated by him in the First Information Report, from PW2. Gyan Chand (PW3) is a signatory to the inquest report. PW1, PW2 and PW3 are real brothers. Each of them is a brother-in-law of victim Surendra Singh. Surendra Singh was a bachelor. He filed a First Information Report against his brother Yashpal alleging that Yashpal murdered their parents. Ajab Singh, a brother of Vinod and Kulveer, had been allegedly murdered by victim Surendra Singh and, in respect thereof, a case was then pending in the appropriate criminal court. Ten days before the death of Surendra Singh, he obtained bail in connection with that case. PW1, PW2 and PW3, therefore, tried to highlight that in retaliation to the murder of Ajab Singh, appellants organized the death of the victim in the manner the same was presented before the court below by PW2. Because victim Surendra Singh alleged to have murdered Ajab Singh, alternatively if, in fact, victim Surendra Singh murdered Ajab Singh, that will motivate brothers of Ajab Singh, namely, appellants Vinod and Kulveer to murder Surendra Singh is little too far fetched. Be that as it may, in the instant case, the prosecution was not relying upon circumstantial evidence against the appellants; they were relying upon the direct and positive eyewitness account given of the incident by PW2. The court below has placed reliance upon the evidence of PW2 and has convicted the appellants.

(2.) In the present appeal, appellants are contending that the court below has committed a manifest error in accepting the evidence of P.W2. It appears to be the case of PW2 that he owned a Yezdi motorcycle. According to PW2, he, PW1 and PW3 reside in a different village and their brother-in-law victim Surendra Singh resides in another village. On that date, PW2 rode the said Motorcycle with the victim Surendra Singh and one Leelu as pillion from his village to the village of the victim Surendra Singh and stopped the motorcycle at the house of the victim Surendra Singh, where appellant Vinod armed with Tabal, appellant Kulveer armed with Balkati together with Kishore and Dhara armed with a country made pistol were waiting for the victim Surendra Singh and pounced upon the victim Surendra Singh. It was alleged that Dhara fired upon the victim Surendra Singh and Vinod used his Tabal on the victim Surendra Singh. PW2 deposed that no sooner victim Surendra Singh received gun shot injury, he ran out from his house, then ran-ran and ran and thereafter almost entered into a bus, wherefrom he was dragged down by the appellants Vinod and Kulveer as well as by Kishore and Dhara and, thereafter, he was assaulted, whereafter appellants Vinod and Kulveer as well as Kishore and Dhara left the place. In the post-mortem report, PW6 has not opined that any of those eleven injuries was or would be caused by gun shot of any kind. According to PW2, his motorcycle was taken by the assailants. Accordingly, he had to walk back home. PW2, according to him, went to his home 6 Kms. away, informed PW1 about the incident, whereafter PW1 wrote the First Information Report and lodged the same in the Police Station. According to PW2, the incident took place at 2.30 P.M., whereafter he covered a distance of about 6 Kms. to inform PW1, then PW1 wrote the First Information Report and the same was lodged at 3.30 P.M. In cross-examination, PW2 stated that he informed PW1 about the incident only at around 6.00 P.M. in the evening of 10 th June, 1994. In course of recording his testimony, PW2 stated that no blood dropped in the house of the victim Surendra Singh, because no sooner victim Surendra Singh received the gun shot injury, he started running and he ran out from the house. He stated that the death was ultimately caused after pulling down the victim Surendra Singh from the bus and after dragging him from the road to inside a ditch and the same was shown to the Investigating Officer. Investigating Officer prepared a site plan, where the dead body was lying. In that, it was not shown that the dead body was lying inside a ditch. PW2 held out that if the place, where the death had taken place, as pointed out by him to the Investigating Officer, has not been shown in the site plan prepared by the Investigating Officer, he can not say the reason therefor. The Investigating Officer collected blood stained soil from the place of occurrence, as pointed out by the Investigating Officer in the site plan, but not from the place which was shown by PW2 as the place of occurrence of the incident. PW3 was a witness to the inquest. The inquest report does not suggest that the dead body was found inside a ditch. On the other hand, the inquest report suggested that the dead body was found on the land belonging to Suresh Kumar. In addition to PW3, Ajmer Singh (PW4) and Molhad (PW5) were witnesses to the inquest. They did not support the prosecution story and, accordingly, were declared hostile. Suresh Kumar, on whose land the dead body was allegedly found, deposed as DW2 and said that from his land dead body of Surendra Singh was not recovered. It is settled law that evidence of relatives of the victim is to be adjudged with care and caution. PW1, one of the relatives of the victim had no role to play, except in lodging the First Information Report. According to him, he lodged the First Information Report on the basis of information derived by him from PW2. The First Information Report was lodged at 3.30 P.M. of 10 th June, 1994, whereas according to PW2, PW1 was informed about the incident in the evening around 6:00 P.M. of 10 th June, 1994. According to PW2, the incident took place at a place, wherefrom the dead body was not found. The finding and the location of the dead body was acknowledged by PW3 in the inquest report, but the same was not supported by other independent witnesses, namely, PW4 and PW5. Having regard to the said state of affair pertaining to the evidence on record, it is difficult to us to hold that the court below was justified in accepting the ocular evidence tendered by PW2 and convicting the appellants only on the basis of the said evidence tendered by the prosecution through PW2.

(3.) We, accordingly, interfere; set aside the judgment and order under appeal and set the appellants, who are still in Jail, at liberty.