Decided on May 02,2013

ANIL Appellant


Barin Ghosh, C.J. - (1.) THERE are three appeals against the selfsame judgment, by which each of the appellants has been convicted for murder of victim Raju. Criminal Appeal No. 95 of 2009 has been preferred by Anil, whereas Criminal Appeal No. 97 of 2009 has been preferred by Imran and Criminal Appeal No. 98 of 2009 has been preferred by Wasif and Pappu. At 02.30 P.M. of 1st July, 2002, a First Information Report was lodged. The same was lodged by Aditya Sharma (PW 1). In that, it was stated that he and the victim came to Haldwani from Moradabad on 30th June, 2002 at 05.30 P.M. It was stated that PW 1 was the mere companion of the victim. It was stated that the victim was an employee of a firm dealing with C.Ds. at Moradabad and the purpose of the visit was to sell C.Ds. and to collect sale proceeds. It was stated that he and the victim had visited the shop of Anil and also met Imran. It was stated that victim, while sold C.Ds., collected Rs. 47, 000/ - as sale proceeds of the C.Ds. It was stated that they went to Hotel Bhardwaj, where they boarded a motor car belonging to Anil. It was stated that in the motor car, in addition to Anil, PW 1 and the victim, Imran was also present. It was stated that while they were taking joyride on the car victim purchased a bottle of liquor. It was stated that PW 1 and the victim consumed liquor with pepsi, which was already kept in the motor car. It was stated that no sooner thereafter PW 1 lost his senses and regained the same when he found that Anil is trying slit his throat. He resisted the same and, thereafter, again lost his consciousness. He regained his consciousness when he found that he is in a canal and when he tried to get out therefrom. Anil and Imran prevented him by throwing stones at him. He stated that he, then, floated to some extent in the canal and, was later, rescued by the police. He was then taken for medical examination; whereafter he went to the shop of Anil, found that the victim is not there and, accordingly, made a request for doing the needful. In course of investigation, while Anil and Imran were arrested, Wasif and Pappu too were arrested. It was the case of the prosecution before the court below that from Wasif Rs. 30, 000/ - and 150 C.Ds. were recovered, whereas from Pappu Rs. 16, 900/ - and 304 C.Ds. were recovered. The dead body of the victim was found on 5th July, 2002 from a distributary canal near Haldwani. Post -mortem thereon was conducted on 6th July, 2002 by Dr. K.D. Pandey (PW 5). He found no external injury on the dead body. He could not opine the cause of death. The viscera of the victim was preserved and the same was sent for examination. As has come on record, before the F.I.R. was lodged with the assistance of the Police, PW 1 was medically examined by Dr. Nilamber Bhatt (PW 4), at about 01.45 A.M. of 1 July, 2002, when PW 4 found that PW 1 has received incised wound injuries on his throat and palm/finger and has also received an incised wound on his head. Upon examination of the viscera, it was reported that the same contained poison and alcohol. In the background of the materials, as discussed above, and on the story telling of PW 1 to the effect as was stated in the F.I.R. as well as on the basis of information supplied by Kanahi Singh (PW 7), one of the Constables, who rescued PW 1 from the canal, to the effect that he saw appellants Anil and Imran in the car of Anil and Pappu outside the car in the night of 30 June, 2002 by the side of the canal, the Police completed the investigation and submitted a charge -sheet. On the basis thereof, charge was framed for offences punishable under Sections 302/34, 120B, 394, 411, 307/34 and 328 of I.P.C. Considering the evidence on record, the court below, by the judgment under appeal, has convicted the appellants and has awarded sentences appropriate to such conviction, st th. It was not a case of direct evidence. It was a case of circumstantial evidence. As will be evidenced from the evidence of the prosecution witnesses, all the links to the circumstances have been supplied by only one witness, i.e. PW 1 and no one else. It is the case of PW 1 that from Bhardwaj Hotel, he and the victim went for a joyride in the car of Anil when apart from PW 1 and the victim, Anil and Imran were also present. This evidence of PW 1 is not corroborated by any other evidence. According to PW 1, there was pepsi in that car. This evidence is not corroborated by any other evidence. According to PW 1, no sooner he consumed liquor purchased by the victim together with pepsi kept in the car, he July, 2002. As aforesaid, the F.I.R. was lodged at 02.30 P.M. of 1 became unconscious. He regained consciousness when he found that Anil is trying to slit his throat. He tried to resist, got injured and went back to unconsciousness. He regained consciousness when he found himself in the water of a canal. Though, PW 1 did receive some injury in the form of incised wounds on his palm/finger and also on his throat before 01.45 A.M. of 1st July, 2002 as was found by PW 4, but the other part of the evidence of PW 1 to the effect that he consumed liquor alongwith pepsi and thus became unconscious, was not corroborated by any evidence and, on the contrary, the evidence of PW 4 suggests that at 01.45 A.M. of 1st July, 2002 when he had checked PW 1, PW 1 was in full consciousness. According to PW 1, when he found himself in the water of the canal, he tried to come out of the canal. He was prevented by appellants Anil and Imran, as they threw stones at him. It is his case that the stones thrown to him caused a lacerated wound on his head. All these things had happed before 01.45 A.M. of 1st July, 2002. According to the F.I.R., before lodging the same, PW 1 verified from the shop of Anil that the victim is not there. Verification of the victim's presence in the shop of Anil was, therefore, made in between 01.45 A.M. and 02.30 P.M. of 1st July, 2002. Neither while deposing in examination -in -chief, nor while deposing in cross -examination PW 1 had stated as to when he had gone to the shop of Anil for the purpose of verifying, whether the victim is present there or not. Admittedly, PW 1 was with the Police prior to 01.45 A.M. of 1st July, 2002. None of the Police Officers, who deposed, stated when PW 1 went to the shop of Anil after 01.45 A.M. of 1st July, 2002 to verity the whereabouts of the victim. The motorcar, in which joyride was taken, was of Anil; the same had pepsi bottles. The car was not made part of the investigation or of the prosecution. Victim and PW 1 consumed liquor with pepsi together, whereafter PW 1 lost senses and thereafter he did not see the victim. On 5th July, 2002, the dead body of the victim was found and thereafter it transpired that he died of poisoning. Poison, therefore, as is the case of the prosecution, was administered to PW 1 as well as to the victim and the same was contained in the pepsi bottle. While PW 1 lost consciousness after consuming liquor with pepsi, victim died, as poison and alcohol was found in his viscera. The fact that PW 1 had also consumed poisonous substance was not attempted to be established. Despite he having had reported the ordeal he went through to PW 4, no suggestion was given by PW 4 to check up the influence of poison upon PW 1. According to PW 1, Rs. 47, 000/ - was collected by the victim as and by way of sale proceeds of C.Ds. Those were kept in a bag inside the car. That sum of Rs. 47, 000/ - was recovered from Wasif and Pappu alongwith 150 and 304 C.Ds. respectively. What Anil and Imran gained, was not sought to be explained. PW 3, the employer of the victim, did not say a word as to what would prompt Anil, a relative of him, to cause death of his employee. In other words, the prosecution did not bring on record motive on the part of Anil and Imran in committing the crime in question. i.e. a preplanned murder of the victim, inasmuch as, as suggested by the prosecution, but not proved, that they had already kept pepsi bottles containing poison in the car. The motive scribed to Wasif and Pappu is sharing of the booty. The whole money was given to them and in addition thereto, 454 C.Ds. were also given to them. What did Anil and Imran got, there is not a single whisper. The fact remains that the recovered C.Ds. were produced as material exhibits. Neither PW 1, nor PW 3 identified those C.Ds. as those which were or ought to have had been with the victim.
(2.) THAT being the situation, the whole case, founded on circumstantial evidence, is based on the sole testimony of PW 1 and no one else. The evidence of PW 7 that he saw Pappu also in the night of 30th June, 2002 outside the car, is not supported by the evidence of PW 1. PW 1 did not take the name of Wasif and Pappu at any point of time either in the F.I.R., or in course of tendering evidence. The question is, could the court come to the conclusion as it has come and reflected in the judgment solely on the basis of the evidence of PW 1? PW 1 has reported in the First Information Report and has also deposed that when he became conscious, for the first time, he found that Anil was trying to slit his throat and despite that, as stated by him in the First Information Report, he went to the shop of Anil for the purpose of finding out the whereabouts of the victim. This statement, having been made in the First Information Report, was totally suppressed and abandoned while tendering evidence. Will it be safe for the court to act on the basis of the evidence given by such a witness whose conduct is such? The answer would be certainly no. There being no corroboration of the evidence of PW 1 that he, the victim, Anil and Imran had taken ride in a car, the whole case of the prosecution collapses as a house of cards. We, accordingly, interfere; set aside the judgment under appeal as well as the conviction and, accordingly, the sentence awarded goes. The appeals are, accordingly, allowed. Appellants Anil and Imran are in Jail. They be released forthwith, unless they are in detention in connection with any other case. Appellants Wasif and Pappu are on bail. Their bail bonds are cancelled and sureties are discharged. They need not surrender. Let a copy of this judgment be sent to the court below alongwith lower court records for compliance.;

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