Suresh Mehto vs State Of Uttarakhand
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Uttarakhand High Court

Suresh Mehto vs State Of Uttarakhand on 4 July, 2024

Author: Pankaj Purohit

Bench: Manoj Kumar Tiwari, Pankaj Purohit

                       Judgment reserved on: 14.05.2024
                       Judgment delivered on: 04.07.2024

  IN THE HIGH COURT OF UTTARAKHAND AT
                NAINITAL
             Criminal Appeal No.795 of 2023

Suresh Mehto                             ........Appellant

                         Versus

State of Uttarakhand                   ........Respondent
                          With

             Criminal Appeal No.694 of 2023

Rajnarayan @ Rajkumar Mehto              ........Appellant

                         Versus

State of Uttarakhand                   ........Respondent

Presence:-

   Mr. Arvind Vashistha, learned senior counsel assisted
   by Mr. Priyanshu Gairola, learned counsel for the
   appellants.
   Mr. J.S. Virk, learned Deputy Advocate General for the
   State.

                       JUDGMENT

Coram: Hon'ble Manoj Kumar Tiwari, J.

Hon'ble Pankaj Purohit, J.

Per: Hon'ble Pankaj Purohit, J.

These criminal appeals are directed against the common judgment and order dated 20.09.2023 passed by learned Second Additional Sessions Judge, Haridwar in Sessions Trial No.03 of 2019 State Vs. Suresh Mehto and another, whereby, the appellants-Suresh Mehto and Rajnarayan @ Rajkumar Mehto were convicted under

Section 302 read with 34 IPC and were sentenced rigorous imprisonment for life with fine of Rs.20,000/- (each), with default stipulation of one year's each additional simple imprisonment and the period undergone by the appellants in prison during trial, shall be set off against the sentence awarded by the Court. Hence, both the criminal appeals are being decided by this common judgment.

2. The case of the prosecution is set into motion when PW-1 Pramod Paswan-informant gave a written report in police station Sidcul, District Haridwar, stating therein that his brother-Pradeep Kumar Paswan worked in Cosmo Company in Sidcul, Haridwar and lived in the house of Rajnarayan (appellant in CRLA/ 694/2023) in Sidcul Roshnabad on rent; on 22.05.2018, he was informed by police of police station Shikarpur at late night, about the death of his brother under suspicious circumstances. At this information, he left for Haridwar with his family members from his house. When they reached Haridwar on 24.05.2018 and saw the dead body of his brother in mortuary, they found that someone had brutally murdered his brother. After completing funeral of his brother, he came to police station and lodged the first information report with a request to take legal action after reporting the case.

3. On the basis of the aforesaid written report, on 24.05.2018 at about 21:52 hrs., a chick FIR was registered, in police station Sidcul, District Haridwar, against the unknown persons and a Case Crime/FIR No.199 of 2018 under Section 302 IPC was registered. After investigation, police submitted a charge sheet against the appellants Suresh Mehto and Rajnarayan @

Rajkumar Mehto under Section 302 read with 34 IPC in the court. Thereafter, the case was committed by the Court of Chief Judicial Magistrate, Haridwar to Sessions Court after providing the copies of the prosecution case to the appellants.

4. The learned Sessions Judge, finding sufficient material, framed charges on 29.01.2019, against the appellants under Section 302 read with 34 IPC. Appellants pleaded not guilty and claimed for trial.

5. The prosecution in order to prove its case, produced as many as ten witnesses namely PW1-Pramod Paswan (informant), PW2- Preetam Singh, PW3- Soniya, PW4-Ajay Yadav, PW5-Mantu Kumar, PW6-Head Constable Suwardhan, PW7- Senior Sub Inspector Devraj Sharma, PW8- Dr. Ajay Kumar, PW9-Sub Inspector Kamal Mohan Singh Bhandari and PW10-Sub Inspector Lakhpati Singh Butola. Apart from this, various documentary evidence was also produced, namely, written report (F.I.R.) Ext.Ka-1, Statement of Soniya under Section 164 Cr.P.C. Ext.Ka-2, Statement of Ajay Yadav under Section 164 Cr.P.C. Ext.Ka-3, Chick F.I.R. Ext. Ka-4, Copy of General Diary (G.D.) Ext.Ka-5, arrest/information memo of Suresh Mehto Ext.Ka-6, memo taskara inquiry Ext.Ka-7, arrest/information memo Ext.Ka-8, specimen handwriting of Suresh Mehto Ext.Ka- 9, Ext.Ka-10 & Ext.Ka-11, charge sheet Ext.Ka-12, F.S.L. report, Ext.Ka-13, post-mortem report Ext.Ka-14, Site Plan Ext.Ka-15, Inquest Report Ext.Ka-16, Sketch of dead body Ext.Ka-17, challan dead body Ext.Ka-18, application given to in-charge Inspector, Kotwali Nagar, Haridwar Ext.Ka-19, application to Chief Medical Officer, Haridwar

Ext.Ka-20, Sample of Seal Ext.Ka-21, memo recovery of one piece of white paper Ext.Ka-22, memo recovery of blood stained one piece of carpet Ext.Ka-23, memo recovery of blood stained floor pieces Ext.Ka-24 and material evidences were also produced namely piece of paper MO-1, plastic bag (panni) MO-2, cloth material MO- 3, piece of carpet MO-4, plastic container MO-5, clothes material MO-6, pieces of floor MO-7, plastic container MO-8, clothes material MO-9, blood stained piece of floor MO-10, plastic container MO-11 and clothes material MO-12.

6. Thereafter, the statements of appellants were recorded under Section 313 Cr.P.C., in which they stated that they have been falsely implicated by conducting a false investigation and preparing forged papers and evidences. But, they refused to produce any defence evidence.

7. From the case of the prosecution, it appears that it was a blind murder; nobody had seen the incidence, in which the deceased-Pradeep Kumar Paswan lost his life. The information was sent on 22.05.2018 to the brother of the deceased, who was in district Champaran, Bihar, that his brother died under suspicious circumstances. PW-1 Pramod Paswan, who is brother of deceased-Pradeep Kumar Paswan came from Champaran, Bihar to Haridwar and lodged a written complaint (Ext.Ka-1) on 24.05.2018 in police station Sidcul, district Haridwar against unknown persons, who allegedly committed murder of his brother. On this written complaint, chick FIR (Ext.Ka-4) was registered as

a Case Crime/FIR No.199 of 2018 in police station Sidcul, district Haridwar on 24.05.2018 at about 21:52 hrs.

8. The case of the prosecution mainly rest on the evidence of PW-3 Soniya and PW-4 Ajay Yadav, whose statements were recorded before the Magistrate under Section 164 of Cr.P.C. PW-1 Pramod Paswan (informant), who came when the police informed about the death of his brother under suspicious circumstances, reached Haridwar along with his family members and saw the dead body of his deceased brother-Pradeep Kumar Paswan in the mortuary and found that his brother was brutally murdered by someone and accordingly, lodged first information report as stated above.

9. During investigation, statements of PW-3 Soniya and PW-4 Ajay Yadav were recorded before the Magistrate, under Section 164 of Cr.P.C., wherein, PW-3 Soniya w/o Pradeep Kumar deposed that she lived in the house of Rajnarayan @ Rajkumar in Roshnabad, Haridwar; on 20.05.2018 at about 08:30 PM, she went to the roof, where, she saw Rajnarayan @ Rajkumar Mehto (appellant), Ajay Yadav, Suresh Mehto (appellant), nephew of Rajnarayan and one-Preetam having drinks (liquor); she came down at about 09:00 PM. Appellants- Rajnarayan @ Rajkumar Mehto and Suresh Mehto came down hurling abuses and entered into the room of deceased-Pradeep Kumar Paswan and abused him, deceased-Pradeep complained that there was no water supply in his room, at this, appellant-Rajnarayan @ Rajkumar Mehto told him that water supply is only for one hour and started quarrelling with each other and hurling abuses. At this, she closed her room; after

sometime, she saw that room of Pradeep Kumar Paswan (deceased) was closed and nobody was there. She further deposed that on Monday, she saw room of Pradeep Kumar Paswan (deceased) locked from outside. On Tuesday, when a foul smell was coming out of the room, Rajnarayan @ Rajkumar Mehto asked Ajay Yadav to break the lock, Rajnarayan @ Rajkumar Mehto broke the lock and threatened them not to tell anybody that the lock was broken by him.

10. Similarly, in his statement PW-4 Ajay Yadav S/o Shri Ramvilas Yadav, under Section 164 of Cr.P.C., deposed that on 20.05.2018 he, Rajkumar, Ramnath and Arvind four persons were gossiping, Arvind had a loan of Rs.25,000/- from landlord Rajnarayan, Rajnarayan and Rajkumar Mehto is the name of same person; Rajnarayan @ Rajkumar Mehto asked his money back from Arvind; Arvind gave him Rs.2,000/- as interest and stated that uncle, you only took money and gave no party. Rajnarayan @ Rajkumar Mehto took four quarters of drinks (liquor) and they all came to the house of Rajnarayan @ Rajkumar Mehto and went to the roof with Rajnarayan @ Rajkumar Mehto, Ramnath and Arvind. He further deposed that he came to the roof later on with water and glasses. After having drinks, he went back to his room. After sometime, he saw Rajnarayan @ Rajkumar Mehto to lock the door of deceased Pradeep Kumar Paswan; he did not see any quarrel. After two days, when foul smell was coming out, people gave information to the landlord; Rajnarayan @ Rajkumar Mehto told me to break the lock, one person named Johny was also present on the spot; they broke the lock. He further stated that he cautioned them not to break the

lock, but the landlord told them not to worry and said he would manage. Then, police came and along with police, he too entered into the room.

11. PW-1 Pramod Paswan only proved the first information report lodged by him. PW-2 Preetam Singh S/o Dayaram Singh was tenant of Rajnarayan @ Rajkumar Mehto, according to the prosecution, was witness of inquest and recovery, but he turned hostile during trial and did not support the case of the prosecution. PW-3 Soniya w/o Pradeep Kumar, who was also tenant of the same building owned by Rajnarayan @ Rajkumar Mehto, where deceased-Pradeep Kumar Paswan was also tenant and whose statement was recorded by the Magistrate under Section 164 of Cr.P.C., did not support the case of the prosecution and stated that statement recorded by the Magistrate (Ext.Ka-2) was given by her under pressure of the police. This witness, too, was declared hostile during trial. PW-4 Ajay Yadav, S/o Ramvilas Yadav, whose statement was also recorded by the Magistrate under Section 164 Cr.P.C. (Ext.Ka-3) during investigation, did not support the case of the prosecution and stated that the statement was given by him under pressure of the police. He also refused the prosecution theory that he was witness of inquest and recovery and went on to depose before the Court that police had his signature in police station on some bank papers. This PW-4 too was declared hostile. PW-5-Mantu Kumar S/o Butali Ram, did not support the case of the prosecution and denied any kind of information about murder of deceased-Pradeep Kumar Paswan. This witness was also declared hostile during trial. PW-6 Head Constable Suwardhan is a police witness who registered

chick FIR and prepared General Diary (G.D.). PW-7 S.S.I. Devraj Sharma is the Investigating Officer who investigated the incident, after he took investigation from S.I. Kamal Mohan Singh Bhandari on 24.06.2018, arrested appellants and recorded the statements of prosecution witnesses under Section 161 Cr.P.C. and finally submitted a charge sheet.

12. PW-8 Dr. Ajay Kumar conducted the post- mortem over the dead body and found injuries on the person of the deceased and it is surprised to know that in his evidence before the Court, he nowhere stated that the injuries were anti mortem. The cause of death shown by him, was due to shock and haemorrhage and due to injuries on chest and head of the deceased. The post- mortem was conducted on 23.05.2018 at 12:40 at the noon and according to him death was possible 2 to 3 days before the post-mortem and proved the post-mortem report exhibited as Ext.Ka-14. PW-9 Kamal Mohan Singh Bhandari and PW-10 S.I. Lakhpati Singh Butola are the police witnesses.

13. Learned trial court after appreciating the evidence on record, convicted the accused persons/ appellants Suresh Mehto and Rajnarayan @ Rajkumar Mehto as mentioned in paragraph no.1 of this judgment.

14. We have heard learned counsel for the parties and perused the entire oral and documentary evidence available on record very carefully.

15. Learned senior counsel for the appellants has stated that the learned trial court has convicted the appellant taking into account the statement recorded

under Section 164 Cr.P.C. of PW-3 Sonia and PW-4 Ajay Yadav recorded before the Magistrate. He further stated that this is a blind murder, there is no evidence either direct or circumstantial to nail the appellants to this crime. It is also stated by him that even no motive was attached to the appellants to commit the murder of the deceased Pradeep Kumar Paswan.

16. It is very strenuously submitted by him that both PW-3 Sonia and PW-4 Ajay Yadav and all other witnesses of the prosecution turned hostile during the trial. PW-3 & PW-4 categorically stated during trial in their evidence that statement under Section 164 Cr.P.C. was given by them under pressure of the police and they too have been declared hostile.

17. Learned senior counsel for the appellants submitted that the statement under Section 164 of the Cr.P.C. is not the substantive evidence and it can only be used for corroboration and to contradict a witness. On the basis of the statements under Section 164 Cr.P.C., nobody can be convicted. Thus, he submitted that the learned trial court fell into error of law and fact while recording the judgment of conviction against the appellants.

18. Per contra, learned State Counsel tried to support the case of the prosecution. To this legal proposition that the statement under Section 164 Cr.P.C. is not the substantive evidence, he is also in agreement with the learned senior counsel for the appellants.

19. Having heard learned counsel for the parties and careful reading of the material available on record,

especially the evidences of all the prosecution witnesses, this Court proceeds to decide the case. All the witnesses of fact produced by the prosecution have turned hostile. No credibility can be attached to their evidences. The prosecution also failed to assign any motive against the appellants to commit the crime. In the absence of any motive, it is not possible for appellants to commit the crime. The evidence which the prosecution can at the most could have pressed to convict the appellants was the evidence of PW-3 Soniya and PW-4 Ajay Yadav, who supported the case of the prosecution during investigation, but, unfortunately both of them were turned hostile and did not support the case of the prosecution and went on to depose before the Court of law in their evidence that the statements under Section 164 Cr.P.C. were given by them under pressure of the police.

20. In such view of the matter, we can safely draw a conclusion that the prosecution failed to prove its case against the appellants beyond all reasonable doubts. It has been held by the Hon'ble Apex Court consistently that statement recorded under Section 164 Cr.P.C. is not a sustentative piece of evidence and it can be used to contradict a witness and to corroborate them. A reference may be had from judgment of the Hon'ble Apex Court in the case of Ram Kishan Singh Vs. Harmit Kaur and Another reported in (1972) 3 SCC 280, in the case of Baij Nath Sah Vs. State of Bihar reported in (2010) 6 SCC 736. Thus, we are of the view that the appellants deserve acquittal as prosecution miserably failed to prove its case beyond all reasonable doubts.

21. The upshot of the aforesaid discussions is that both the appeals deserve to be allowed. Accordingly, both the appeals are allowed. Judgment and order dated 20.09.2023 passed by learned Second Additional Sessions Judge, Haridwar in Sessions Trial No.03 of 2019 State Vs. Suresh Mehto and another, is hereby set aside. The appellants-Suresh Mehto and Rajnarayan @ Rajkumar Mehto are in jail. They shall be released immediately, if not wanted in any other criminal case.

22. Registry to send a copy of this judgment along with the LCR to the court concerned for information and compliance.

(Pankaj Purohit, J.) (Manoj Kumar Tiwari, J.) 04.07.2024 PN