CRLA/270/2014 of Naresh Kumar Vs State Of Uttarakhand

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Criminal Appeal No. 270 of 2014

Naresh Kumar

…...Appellant

Versus

State of Uttarakhand ….…Respondent

Present: Mr. R.S. Sammal, Advocate, for the convict/appellant. Mr. Amit Bhatt, Deputy Advocate General, for the State.

Coram: Hon’ble Sudhanshu Dhulia, J.Hon’ble Narayan Singh Dhanik, J.

Per: Hon’ble Sudhanshu Dhulia, J. (Oral)

This is an appeal against judgment and order dated 23.7.2014 whereby the appellant has been convicted for the offence under Section 302 read with Section 34 IPC and has been sentenced to undergo life imprisonment and to pay fine of rupees five thousand. However, the appellant has been acquitted of the charge of offence under Section 328 read with Section 34 IPC.

An FIR was lodged on 20/21 June, 2007 at an hour past midnight at about 1.10 AM by one Mangal Singh, father-in-law of the deceased, who is the resident of Village Sherpur Bela, Police Station Khanpur, District Haridwar, stating that his daughter-in-law is missing since 09.6.2007 when she along with her child had gone to the local market to get medicines for herself. As she did not return, the next day, he along with the villagers went for her search, but in vain. After around ten days on

19.6.2007, Jogendra @ Jogi informed his brother Sukhbir over the telephone that today one Bablu @ Pawan informed him on telephone that his sister (the deceased Ms. Bati was sister of Sukhbir and Jogendra) was with him and Dr. Naresh (i.e. the present appellant) for the last ten days and she has been poisoned by them and after administering poison, she has been asked to board the bus at Laksar for Bhikkampur and if they want, they can look for her at Bhikkampur. When the complainant received this information, he along with Sukhbir and others went to the place where Ms. Bati was supposed to alight from the bus. There they found Ms. Bati on the roadside along with her son. Ms. Bati was in unconscious state. She was first taken to local nursing home and thereafter to the Government Hospital, Haridwar where she was declared dead. The complainant then states in the FIR that he is convinced that his daughter-in-law has been killed by administering poison to her at the hands of Bablu and Dr. Naresh.

At this stage, it must be stated that though the accused, the appellant before this Court, is referred as Dr. Naresh, but it has come that he is not qualified MBBS Doctor.

Pursuant to the FIR, both Bablu and Dr. Naresh were arrested and the police started its investigation. After completing its investigation, the police filed the chargesheet under Sections 302 and 328 read with Section 34 IPC against both the accused. The case was committed to Sessions on 29.10.2007. On 18.11.2009, the Trial Court framed charges for the offences under Section 302 read with Section 34 IPC as

well as under Section 328 read with Section 34 IPC against both the accused.

At this juncture, it is necessary to state that vide order dated 10.6.2010 passed by the Sessions Judge, Haridwar, co-accused Bablu was declared juvenile and his trial started separately before the Juvenile Justice Board in which Bablu was acquitted on 3.3.2012. Meanwhile, the trial being Sessions Trial No. 410 of 2007 proceeded against the present appellant Dr. Naresh.

The prosecution in order to establish its case examined as many as 7 witnesses. Out of these witnesses, PW1, PW2, PW3 and PW6 are important witnesses. The remaining witnesses PW4, PW5 and PW7 are formal witnesses.

PW1 Mangal, who is the complainant and father-in-law of the deceased, in his examination-in-chief reiterates what he had already stated in the FIR. His examination-in-chief was conducted on 02.9.2011. Thereafter the defence took adjournment for the cross-examination, but he was never cross-examined.

PW2 Chandrapal is the husband of the deceased. He states almost the same facts as has already been stated by his father (PW1) in his examination-in-chief that his wife was missing since 9[th] June, 2007 and they were searching for her for the last ten days. Finally they got some information on telephone and when they reached at the spot, they found Ms. Bati in unconscious state along with her son Rahul who was crying on the roadside. The examination-in-chief of this witness was conducted on 28.3.2012, but again the cross-examination was deferred

on the plea of defence and like in the case of PW1, this witness was again never cross-examined.

PW3 Sukhbir is the brother of the deceased. His examination-in-chief is of 07.5.2012 in which he states that about 4-5 years back, his sister had gone to Khanpur along with her son to fetch medicine. There at Khanpur, his sister met the two accused i.e. Bablu and Dr. Naresh who took her along with them. When even after two days, his sister did not return then the father-in-law of his sister and his brother-in-law came to his village and inquired about Ms. Bati. Thereafter this witness also reiterates the story of the phone call and the discovery of his sister on the roadside and the fact that she was administered poison by Bablu and Dr. Naresh. Cross-examination of this witness was again deferred. However, he was cross-examined on 29.5.2012, but nothing worthwhile has come in his cross-examination.

PW6 is the child Rahul who at the time of incident was 4-5 years of age and when his examination-in-chief was conducted on 6.1.2014, he was about 12 years of age. He states that he knows Dr. Naresh, to whom he identifies in the Court. He states that about 6 years back, the accused Dr. Naresh took him and his mother from their house and for nearly 10-12 days, they travelled together. During that time, another accused Bablu also joined them. On the fateful day, the present appellant mixed poisonous substance in glass of water which was administered to his mother. Then the two i.e. he and his mother boarded the bus for Bhikkanpur. His mother became unconscious on way and then the conductor of the bus helped his mother alight from the bus. By that time,

his grandfather and other persons of the village came to the spot on the roadside. His mother was then taken to the hospital. He reiterates that it is the appellant Dr. Naresh who killed his mother by administering poison. In his cross-examination, this witness states that the incident happened 5-6 years back. The conductor of the bus helped them alight the bus. At the same time, he also states that when he got down from the bus, he was alone. His village is situated at the distance of about 20 kilometres from the spot. On question being put by the defence, he further reiterates that it is the accused appellant who administered poison to his mother.

At this stage, it has been pointed out to this Court that during the investigation the police had recorded the statement of this particular witness (PW6) who at that time while he was 4-5 years of age had said that the poison was given to his mother by “Bablu”. Moreover, he was never produced before the Juvenile Justice Board during the trial of Bablu.

After going through the judgment and order of the Trial Court, we find that the Trial Court has heavily relied upon the statement of this witness i.e. PW6 Rahul. It is on the sole testimony of this witness that the present appellant has been convicted for the offence under Section 302 read with Section 34 IPC. Is PW6 reliable witness ! We will come to this aspect in while.

But meanwhile, there are other aspects of the case which are not convincing and which do not strengthen the case of the prosecution. The deceased Ms. Bati was admittedly missing from her matrimonial house along with her five years old son since 9.6.2007, but no

effort was made either by her father-in-law or her husband or brother to lodge even an FIR at any stage. FIR could be lodged only after Ms. Bati was discovered and when she died and cremated. No satisfactory explanation has been given either by PW1 or PW2 as to what were the compelling circumstances for not lodging an FIR promptly. Only this much has been stated by the complainant in the FIR that they were continuously searching the deceased and her son and therefore they could not earlier lodge the report.

Moreover, the extremely weak link in the case of the prosecution is the mysterious phone call ! As per the case of the prosecution, it is one of the co-accused Bablu who informed Jogendra that he and Dr. Naresh (present appellant) had taken his sister along with them from Khanpur and after keeping her for about ten days, they administered poison to his sister Ms. Bati and thereafter boarded his sister and her son in bus. This seems to be most unlikely.

Now, we come to the statement of PW6 Rahul. PW6 at the relevant time of incident was 4-5 years of age. It is not the case of the prosecution that he at any time prior to his testimony before the Trial Court had made any statement that it is the present appellant who had administered poison. In his statement under Section 161 CrPC, his allegation is that it was the co-accused Bablu who administered the poison. Now, in his examination-in-chief, which was conducted after more than 7 years from the date of alleged incident, he states that it was the present appellant who administered the poison. It is extremely improbable that 12 years old child

would remember the details of an incident, which allegedly occurred when he was 4-5 years of age. In any case, this statement of PW6 is not corroborated by any other evidence. The statement of child witness is admissible in law, but the Courts must be extremely careful in evaluating this evidence. Generally the evidence of child witness must be corroborated with other evidence. In recent judgment rendered in the case of Yogesh Singh v. Mahabeer Singh & Others, (2017) 11 SCC 195, the Hon’ble Apex Court has held as under:

“It is well settled that the evidence of child witness must find adequate corroboration, before it is relied upon as the rule of corroboration is of practical wisdom than of law.”

The above position is reiteration of the settled law laid down earlier by the Hon’ble Apex Court in Prakash v. State of M.P.[1], Baby Kandayanathil v. State of Kerala[2], Raja Ram Yadav v. State of Bihar[3], Dattu Ramrao Sakhare v. State of Maharashtra[4], State of U.P. v. Ashok Dixit [5]and Suryanarayana v. State of Karnataka[6].

Under these circumstances, in our view, conviction ought not to have been made, on the testimony of the child witness alone. Prosecution has to prove its case beyond reasonable doubt. This has not been done. Consequently, we allow the appeal and set aside the impugned judgment and order dated 23.7.2014 passed by the Trial Court and quash the conviction and sentence

1.(1992) 4 SCC 225 : 1992 SCC (Cri) 853

2.1993 Supp (3) SCC 667 : 1993 SCC (Cri) 1084

3.(1996) 9 SCC 287 : 1996 SCC (Cri) 1004

4.(1997) 5 SCC 341 : 1997 SCC (Cri) 685

5.(2000) 3 SCC 70 : 2000 SCC (Cri) 579

6.(2001) 9 SCC 129 : 2002 SCC (Cri) 413

awarded to the appellant. Appellant is in jail. He shall be released from the jail forthwith unless he is wanted in connection with any other case.

Let copy of this judgment and order, along with LCR, be sent back to the Trial Court for compliance.

(Narayan Singh Dhanik, J.) (Sudhanshu Dhulia, J.) 12.12.2018

Prabodh