DIWAN SINGH Vs. STATE OF UTTARAKHAND
LAWS(UTN)-2012-9-167
HIGH COURT OF UTTARAKHAND
Decided on September 13,2012

DIWAN SINGH Appellant
VERSUS
STATE OF UTTARAKHAND Respondents

JUDGEMENT

- (1.) By the self-same judgment, appellant in CRLA No. 272 of 2004, Diwan Singh, as well as appellant in CRLA No. 274 of 2004, Mukesh Singh, had been convicted for offences punishable under Section 302, read with Section 34, of the Indian Penal Code and also Sections 201 and 427 of the said Code. In course of investigation, on 8 th March, 1998, appellants Diwan Singh and Mukesh Singh, along with one Laxman Singh, who deposed as PW3, were arrested. The investigation, in connection whereof the arrests were made, was launched on the basis of a First Information Report lodged by one Dharmanand on behalf of the owner of a truck bearing registration No. UP03 1055, on 5 th March, 1998, at about 08:00 a.m., where it was stated that the said truck met with an accident on 4 th March, 1998, when the driver of the said truck, Naveen, died. An inquest report was prepared, where it was shown that the dead body was lying in a ditch and the truck in question was lying in the same ditch about 150 yards downward. The dead body was sent for post mortem. Post mortem report suggested that the death was by reason of six ante-mortem injuries sustained by the victim. It was stated that two of those injuries, namely, injury Nos. 4 & 5 broke bones. None of those injuries were reported to be incised wounds. It was stated that the injuries are of the nature of multiple contused abrasions, except one, which was lacerated wound. In course of investigation, a recovery memo dated 8 th March, 1998, also signed by appellant Diwan Singh, was produced, where it was stated that, on the pointing of Diwan Singh, a 4 feet rod was recovered from inside the said truck. Thus, the investigation was completed and a charge-sheet was filed on 22 nd March, 1998, whereby it was alleged that appellants Diwan Singh and Mukesh Singh, as also Laxman Singh (PW3), are guilty of offences punishable under Section 302, read with Section 34, of the Indian Penal Code as well as under Sections 201 and 427 of the Indian Penal Code. PW3, then, applied for and obtained bail. After having had obtained bail, on 28 th September, 1998, he recorded the statement under Section 164 of the Code of Criminal Procedure. Subsequent thereto, on 29 th May, 1999, recourse was taken to Section 306 of the Code of Criminal Procedure, when PW3 was pardoned. Thereafter, on 5 th February, 2000, charges were framed for offences punishable under the aforementioned Sections against appellants Diwan Singh and Mukesh Singh.
(2.) Although Dharmanand did not depose before the trial court, but the owner of the said truck, namely, Anil Kumar Jukaria deposed as PW2 and proved the First Information Report. The doctor, who conducted post mortem of the dead body of the deceased, deposed as PW1 and, in course thereof, held out that the injuries, sustained by the victim, could also be sustained by use of, amongst others, iron rod. The Investigating Officer deposed as PW4. In course of deposing, PW4 did not indicate as to how he came to learn, in course of investigation, possible involvement of appellants Diwan Singh and Mukesh Singh, as also of PW3, with the crime alleged. The prosecution relied upon the evidence of PW3 to put home the charges. In the event, evidence of PW3 is not looked at, there is no evidence on record connecting the appellants with the crime in question. The question is, whether the evidence of PW3 should or should not be looked at
(3.) PW3 is alleged to be an accomplice to the crime in question. PW3, according to him, was the cleaner of a truck bearing registration No. UP03 1992, the driver whereof was appellant Diwan Singh, and the same was owned by Bhuwan Upreti. Appellant Diwan Singh, in answer to questions put to him under Section 313 of the Code of Criminal Procedure, denied, amongst others, that PW3 was the cleaner of truck bearing registration No. UP03 1992. In the absence of corroboration of the assertion of PW3 that he was the cleaner of truck No. UP03 1992, it would be unsafe to conclude, for sure, that PW3 was, in fact, the cleaner of the said truck. Be that as it may, according to PW3, shorn of other details, victim, appellants Diwan Singh and Mukesh Singh, as well as one Gopal, took alcohol and, thereafter, had their meals at Karki Hotel in the night of 4 th March, 1998. Thereafter, victim went to his truck for sleeping purpose and the appellants and PW3 went to the truck of appellant Diwan Singh. Thereafter, they went to the truck of the victim and made him agree for a drive. At this time, appellant Diwan Singh was driving. At the place of incident, the truck was stopped. PW3 got down from the truck to relieve himself. At that time, appellant Diwan Singh gave a blow on the head of the victim with the iron rod. In consequence thereof, victim became unconscious. The body of the victim was dragged out down from the truck. Then, appellant Diwan Singh made PW3 to hold the head of the victim beneath the tyre of the truck in such a way so that the head is not moved. Appellant Mukesh Singh was asked to drive the truck of the victim and, accordingly, Mukesh Singh drove the said truck and that crushed the head of the victim. PW3 stated that, soon thereafter, appellant Diwan Singh threw the dead body of the victim in the roadside ditch and, then, drove the vehicle down and also ensured that the same also falls in the self-same ditch. Despite the name of Gopal coming, he was not examined. No one connected with Karki Hotel was examined. The post mortem report did not suggest that the head of the victim was crushed in the manner, as was described by PW3, under the wheels of a truck. According to PW3, he was an accomplice to the crime because he helped crushing of the head of the victim under the wheels of the truck. As aforesaid, the medical evidence does not suggest that the head of the victim was crushed in the manner as depicted by PW3 or the same was even close to the same. Therefore, it is doubtful whether PW3 was, in fact, an accomplice.;


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