Decided on August 02,2013



- (1.) Appellants In These Appeals Have Been Convicted For Offences Punishable Under Section 302 Read With Section 34, Section 307 Read With Section 34 And Section 201 Of I.P.C. And Also Under The Gangsters Act. Appellant Rohit Tewari Was, However, Not Convicted Under The Gangsters Act. In Addition To Offences Punishable Under Section 302 Read With Section 34, Section 307 Read With Section 34 And Section 201 Of I.P.C, Appellants Were Also Charged For Offences Punishable Under Section 394 Read With Section 34 And Section 411 Of I.P.C. Appellants Have Been Exonerated Of The Charge For Offences Punishable Under Section 394 Read With Section 34 And Section 411 Of I.P.C. Independent Of The Allegations Pertaining Offences Punishable Under Sections 302, 307, 201, 394 And 411 Of I.P.C., No Other Offence Punishable Under Gangsters Act Was Ascribed Against The Appellants. Appellants Have Been Convicted On The Basis Of Direct Evidence Given By Amar Agrawal (Pw1) And Ram Niwas (Pw7). The Fact Remains That The Dead Body Of The Deceased Was Found Near Ghatgarh, Which Is Situate At About 9 Kms. On The Road From Kaladhungi Crossing To Nainital, Towards Nainital. The Deceased Was A Resident Of Ram Nagar. The Deceased Was Brought To Government Hospital, Haldwani. He Was Declared Brought Dead. His Post-Mortem Was Then Conducted And The Doctor, Who Conducted Post-Mortem, Reported In The Postmortem Report That The Cause Of Death Is Strangulation. In Addition To Injuries Pertaining To Strangulation, The Doctor Reported In The Post-Mortem Report That The Deceased Had Received Several Other Ante-Mortem Injuries. Subsequent Thereto, A First Information Report Was Lodged By The Father Of The Deceased. In The First Information Report, Appellants Were Named Alongwith Few Other Unknown Persons. It Was Stated That, In Addition To The Incident Of The Death Of The Deceased In The Circumstances Mentioned In The Post-Mortem Report, There Was Also An Incident Of Causing An Attempt To Murder The Pw1 By The Selfsame People. This F.I.R. Was Investigated, Whereupon, In Addition To Appellants, Two Other People Were Arraigned At The Trial For Offences, For Which The Appellants Were Charged As Mentioned Above. Those Two Other People, Who Had Been Arraigned For Trial, Have Been Acquitted.
(2.) The Case Of The Prosecution, As Sought To Be Established Through Pw1 And Pw7 Was That Pw1 Was A Friend Of The Deceased. In The Night Around 9.00-9.15 P.M., Pw1 And The Deceased Went On A Ride From Ram Nagar Towards Ranikhet By Taking Ranikhet Road In The Esteem Car Of The Deceased. Pw1 And The Deceased, In The Esteem Car Of The Deceased, Crossed Aam Danda Barrier And Went On Further For About 2-21/2 Kms., When It Was Noticed That A Bolero Car Is Coming From The Back. Deceased Gave Appropriate Sign To Give A Pass To The Bolero Car. The Bolero Car Did Not Take The Pass. Deceased, Accordingly, Parked His Car On The Side Of The Road When The Bolero Car Came And Dashed On The Back Of The Esteem Car. On That, The Deceased Got Down And Held Out To The Riders Of The Bolero Car That "Can't You See". At That, Pw1 Also Came Out From The Esteem Car. By That Time, Appellants Had Already Got Down From The Bolero Car. They Were Accompanied By Two/Three Other People. Appellants Held Out That Let The Deceased And Pw1 Be Taken In The Bolero Car. Accordingly, Pw1 Was Taken In The Bolero Car. He Was Made To Lie Face Down In The Gap In Between The Front Seat And The Rear Seat. At That Time, Pw1 Realised That A Heavy Vehicle Has Come And Stopped By The Side Of The Bolero Car. There Was Some Exchange Of Words Between The Occupants Of The Bolero Car And That Of The Heavy Vehicle. Thereafter, Appellants Held Out That The Esteem Car Be Appropriately Dealt With. Accordingly, Two People Of The Bolero Car Gang Drove The Esteem Car, While The Bolero Car Followed The Same. Later, After Doing The Needful, In So Far As Esteem Car Is Concerned, Those Two People Returned To Bolero Car And Then The Bolero Car Came To Ram Nagar. By Looking At The Light Pw1 Realized That The Bolero Car Has Reached Ram Nagar. At That Time, One Of The Occupants Of The Bolero Car Tried To Make A Phone Call Through A Mobile, But Was Unable To Contact The Person To Whom The Call Was Made. Thereafter, The Bolero Car Started Moving. Then, Suddenly The Appellants Said That Let Us Do Away With The Deceased And Pw1. Accordingly, Both Of Them Were Taken Out From The Bolero Car. First The Deceased Was Taken Out, And Later, Pw1 Was Taken Out. Both Of Them Were Hit By Stones And Pushed Into The Gorge. Thereafter, Pw1 Found Himself On The Crossing Of Kaladhungi, I.E. 9 Kms. Away, Fromwhere He Was Pushed Into The Gorge After Being Hit By Stones, By Some Miracle. There, An Unknown Boy Gave Pw1 A Mobile, Through Which He Informed About His Ordeal To His Father. His Father Then Informed The Father Of The Deceased. The Father Of The Deceased Came To Kaladhungi. By That Time, Some Locals Of Kaladhungi Had Informed The Police That Pw1, An Injured Person, Is Available At Kaladhungi. At About That Time, The Father Of Pw1 Also Came. Father Of Pw1 Took Pw1 To Ram Nagar. At Ram Nagar, Pw1 Was Medically Examined. He Was Found To Have Received One Visible Injury And Two Complaints Of Pain; One On The Chest And The Other On The Knee. The Doctor Prepared A Report. In That, He Had Indicated That The Injury Was On The Back Of The Head Of Pw1, And That, The Same Is Fresh And Blood Is Oozing Out. Around 9.00 A.M., The Father Of The Deceased Alongwith Accompanying Police Men Discovered The Deceased Lying Injured. He Was Then Taken To Government Hospital At Haldwani, Where He Was Declared Brought Dead And, As Aforesaid, Soon Thereafter, His Post-Mortem Was Conducted And The Doctor Reported That The Death Had Taken Place In The Night Of The Previous Day. Pw7 Stated That He Was Cleaner Of A Oil Tanker And On That Date He Was Travelling On The Oil Tanker On The Ranikhet Road And Had Seen The Esteem Car Of The Deceased As Also The Bolero Car And Saw That The Appellants Are Dragging The Deceased From The Esteem Car To The Bolero Car.
(3.) Appellants Were Charged For Having Committed Crime Punishable Under Section 394 Read With Section 34 And Section 411 Of I.P.C. On The Allegation Of Pw1 To The Effect That His Mobile As Well As The Mobile Of The Deceased Were Taken By The Appellants When Pw1 And The Deceased Were Taken To The Bolero Car. This Aspect Of The Matter Could Not Be Proved Before The Trial Court. The State Has Not Preferred Any Appeal Against The Judgment, Whereby And Under, Appellants Have Been Exonerated Of The Charge Framed Under Section 394 Read With Section 34 And Section 411 Of I.P.C. Therefore, It Is Apparent On Record That Apart From The Evidence Of Pw1 And Pw7, There Is Nothing To Link The Appellants With The Crime Alleged. The Question Is, Whether The Court Below Was Justified In Accepting The Evidence Tendered By Pw1 And Pw7 Evidence Of Pw7 To The Effect That He Had Seen That The Deceased Was Being Taken Inside The Bolero Car Is Contrary To The Evidence Of Pw1, Who Stated That The Vehicle, In Which Pw7 Was Supposedly Travelling Reached After Pw1 And The Deceased Had Already Been Taken Inside The Bolero Car. Further, Apart From Making A Bald Statement In The Court, Neither Pw7, Nor Any Other Prosecution Witness Made Any Attempt To Bring On Record Anything Which Could Suggest That, In Fact, Pw7 Was A Cleaner Of A Oil Tanker And On The Date In Question Pw7 Had Any Business Of Travelling Any Oil Tanker On Ranikhet Road At The Relevant Time.;

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