Uttarakhand High Court
Basant @ Chotu vs State Of Uttarakhand on 19 September, 2024
2017:UHC:11022
Reserved
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
MS. JUSTICE RITU BAHRI, C.J.
AND
MR. JUSTICE ALOK KUMAR VERMA, J.
Delivered on:19.09.2024
Reserved on: 14.03.2024
CRIMINAL APPEAL NO. 28 OF 2013
Basant @ Chotu .....Appellant.
Versus
State of Uttarakhand .......Respondent.
Counsel for the appellant : Mr. Abhishek Verma, learned counsel.
Counsel for the respondent : Mr. J.S. Virk, learned Deputy Advocate
General for the State.
Upon hearing the learned Counsel, the Court made
the following
JUDGMENT :
(per: Ms. Ritu Bahri, C.J.)
Appellant‐Basant alias Chotu has come‐up in Appeal
against the judgment and order dated 12.12.2012, passed
by the Additional Sessions Judge, Haldwani, Nainital in
Sessions Trial No. 29 of 2009, whereby he has been
convicted for the offence under Section 302 of the Indian
Penal Code (hereinafter referred to as IPC) and he has
been further convicted under Section 25 of the Arms Act in
Sessions Trial No. 31 of 2009. Under Section 302 of IPC, the
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appellant has been sentenced to undergo life
imprisonment and to pay a fine of Rs. 5000/‐ and in default
of payment of fine to undergo additional imprisonment for
a period of one year. Under Section 25 of the Arms Act, he
has been sentenced to undergo one year's rigorous
imprisonment and to pay a fine of Rs. 1000/‐ and in default
of payment of fine to undergo additional imprisonment for
a period of one month. All the sentences imposed under
the aforesaid Sections were directed to run concurrently.
2. The complainant‐Umesh Kumar lodged a written
report at Police Station Kathgodam, District Nainital on
16.09.2008. As per the complainant, he and his father‐
Roop Kishore were coming from Ranibagh towards
Kathgodam on their motorcycle. At around 18:15, at
Gulabh Ghati, where the road is bad, the complainant got
down from the motorcycle to urinate. Two persons riding
a motorcycle came from behind; one was his uncle's son
Basant, who was sitting behind and one another person,
who was riding the motorcycle was wearing helmet.
Accused‐Basant shot his father standing there twice and
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pushed him down the road along with the motorcycle and
ran away. He raised a lot of noise, but no one came to the
spot. After some time, Ambulance 108 came and took his
father to Base Hospital Haldwani, where he died. He made
a request for taking legal action against Basant, son of late
Bhagwan Das,resident of Gunsai Nagar, Haldwani and his
fellow motorcycle rider.
3. On the basis of the above written report Exhibit A‐1,
FIR No. 47 /2008 Exhibit Ka‐9 was registered in Police
Station Kathgodam, District Nainital and copy G.D. Exhibit
Ka‐10 was prepared.
4. On 17th September, 2008, Basant alias Chotu was
arrested by the Investigating Officer and at his instance, at
16:30 Hrs, one pistol of 315 bore and three live cartridges
were recovered at e Rampur Road, Gorapadav Bypass
Road, Haldwani, District Nainital. As per the Recovery
Memo (Exhibit Ka‐13), on 17.09.2008, when the accused,
after being arrested, confessed his crime and told that the
pistol used in the murder of deceased‐Roop Kishore can be
recovered from the place where he had hidden it, accused‐
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Basant was taken into custody. SHO -Jagdish, along with
the police personnel Constable Manoj Kumar, Mahendra
Yadav and Chandra Singh along with the Government
Vehicle Driver Puran Ram came near Rampur Road
Panchayat House. From there accused‐Basant asked them
to move from Rampur Road towards Gorapadav Bypass
Road and drove about four kilometeres. After walking,
accused‐Basant stopped the vehicle and got down from
the road, where three stones were kept at the roadside.
He went ahead towards east and put his hand near the
root of a tree and took out a black cloth shirt bundle and
showed it to the witnesses, which contained a pistol of 315
bore in working condition. Three live cartridges of 315
bore were also recovered at his instance and he told that
he had committed the murder of his uncle with the said
gun. The recovered weapon used in the murder was kept
in a white cloth and after recording the testimony,
signatures of the witnesses were taken and First
Information Report No. 48 of 2008 under Section 25 of
Arms Act (Exhibit Ka‐11) was lodged against the accused.
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Thereafter, the investigation was carried‐out and two
separate charge‐sheets against accused‐Basant were sent
to the Court under Sections 302 of IPC and 25 of the Arms
Act (Exhibits Ka‐17 and Ka‐20 respectively).
5. After hearing the parties on the allegations, charges
were framed against accused‐Basant alias Chotu under
Section 302 of IPC in Sessions Trial No. 29/09 and under
Section 25 of the Arms Act in Sessions Trial No. 31/09.
6. Both the trials were decided together as they were
related to the same incident and both the trials were
adjusted and the evidence were recorded in Sessions Trial
No. 29/09 (Leading Case).
7. To prove its case, complainant‐Umesh Kumar (PW1),
Doctor C.P. Bhaisoda (PW2), Sub Inspector‐P.C. Joshi
(PW3), Head Moharrir Dan Singh Mehta (PW4), Sub
Inspector‐Jagdish Singh (PW5) and Sub Inspector‐Paniram
Tamta (PW6) were examined on behalf of the prosecution.
8. In documentary evidence, Tahrir (written report)
Exhibit A‐1, Autopsy Acknowledgement Exhibit A‐2,
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Panchayatnama Exhibit A‐3, Police Foirm‐13 Exhibit A‐4,
Photo of the Dead Body Exhibit A‐5, Specimen Seal Exhibit
A‐6, Letter Exhibit A‐7, Memo Exhibit A‐H, Chick FIR Exhibit
A‐9, Carbon Copy G.D. Exhibit A‐10, Chick Exhibit A‐11,
Carbon Copy G.D. Exhibit A‐12, Memo Seizer Exhibit A‐13,
Site Map Exhibit A‐14, Forensic Science Laborartory Report
Exhibit A‐15 and Exhibit A‐16, Charge‐Sheet Exhibit A‐17,
Site Map Exhibit A‐18, Permission Letter Exhibit A‐19,
Charge Sheet Exhibit A‐20, PCR (108) Exhibit A‐21, Certified
Copy Exhibit A‐22, Information under RTI Exhibit Ka‐23 and
Envelop A‐24 have been produced and proved.
9. By filing the letter sent under the Right to Information
Act and the information received Exhibit B‐1 to Exhibit B‐4
on record, the same have been proved by the Defense. In
addition to it, the information obtained as per the Right to
Information Act was presented by the Defense in record
after the arguments under Section 294 of the Code of
Criminal Procedure.
10. Statement of the accused was recorded under Section
313 of the Code of Criminal Procedure, in which accused‐
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Basant, while denying the incident, admitted himself to be
the son of the elder‐uncle of complainant‐Umesh and
doing the business of straw business and denied having
grudge seeing that the straw business of the complainant
was going very well and denied the recovery of pistol and
three live cartridges at his instance on 17.09.2008.
11. On behalf of accused -Basant, DW1‐Puran Chandra
and DW2‐Sudhir Vijalwan were got examined as Defense
Witnesses.
12. In defense, accused‐Basant produced the letter sent
under the Right to Information Act and the information
obtained Exhibits B‐1 to B‐4 on record and the information
obtained as per the Right to Information Act was also
presented by the Defense in record after the arguments
under Section 294 of the Code of Criminal Procedure.
13. The main prosecution witness is eye‐witness‐Umesh
Kumar (complainant), who appeared as PW1 and he gave
his version in examination‐in‐chief as per the details of the
complaint made at the time of registration of the FIR. He
proved his signature on the Report Exhibit A‐1 and filing
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the report at Kathgodam Police Station. He further said
that he had gone to the spot with the police next day and
the police had seized blood stained and plain soil, two
hollow cartridges and a bullet from the spot, and got the
recovery was sealed and stamped and he had signed on it.
14. In the cross‐examination done on behalf of accused,
this witness stated that Ambulance 108 had arrived at
around 06:30, in which there were his employees,
deceased and witnesses. He admitted that he was not
aware of the name by which the Ambulance was called.
He further stated that he knew Rambabu Jaiswal and Ajay‐
the brother of the witness. He denied the suggestion that
his brother‐Ajay might have written the report against
unknown persons to Rambabu. The witness further stated
in the cross‐examination that there was no shop at the
place of the incident on the mountain, and at river side,
there was a kitchen 25‐30 steps ahead. Apart from this,
there were other shops and houses there. Around 25‐30
people had come to the spot at the time of the incident.
He did not recognize them. In cross‐examination, he
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further stated that he had told Daroga Ji that he had taken
his father on Ambulance‐108. He denied the suggestion
that he was at home and not with his father at the time of
the incident. This witness further stated that on the day of
the incident he was driving a trolley with his father and he
had ten to eleven thousand rupees. There was no robbery
with him or his father and total three shots were fired at
the spot. He denied the suggestion that Puran Chandra
was sitting with the deceased at the time of the incident
and not him. This witness further stated in the cross‐
examination that Basant had not covered his face at the
time of the incident. Daroga Ji was informed about firing
of three shots. In the cross‐examination, the witness has
further said that Narayan Singh is his brother‐in‐law, who
had come to his house two‐three days ago from Delhi.
Narayan Singh had reached the hospital at 07:00 Hrs. and
then the report was written. He had discussed about firing
of two bullets with Narayan Singh, which he saw being
fired, but the shot which he did not see being fired is not
mentioned in the FIR. He admitted that there was no one
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at the spot when the bullet was fired, but after he shouted,
about 20‐25 people came. He denied the suggestion that
his father might have been shot by an unknown person
and that he had colluded with the police and filed a false
case against the accused and that Ajay had made the
report written by Rambabu Jaiswal disappear.
15. The Trial Court, as per the evidence given by PW1‐
Umesh Kumar in his cross‐examination came to the
conclusion that as per the site plan Exhibit Ka‐14, there
was no habitation near the place of the incident. The eye‐
witness had got recorded the FIR immediately after the
incident mentioning the incident and his statement is in
consonance with the medical witness and the recovery
under Section 27 of the Indian Evidence Act, as per the
confessional statement made by the accused and recovery
of pistol and cartridges made on 17th September, 2008.
The plea taken by the Defense that PW1 in the FIR had
mentioned that his father was hit by two bullets is contrary
to the medical evidence and the post mortem report which
shows that there were total six injuries, in which there
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were three entry wounds and three were exit wounds.
Since in the FIR, the complainant has stated that his father
was hit by two bullets and factually, as per the Post
Mortem Report, there were three bullet entry wounds and
three bullet exit wounds, this variance in the evidence will
not lead to make the investigation and the report made by
PW1 doubtful, rather the post mortem report and the
medical evidence has clarified that actually the deceased
was shot by the pistol and since there was no delay in
getting the FIR registered, that would not render the
testimony of PW1‐Umesh Kumar doubtful. The Trial Court
has rightly come to the conclusion that the version given
by PW1‐Umesh Kumar is not to be doubted merely on the
ground that instead of two bullets, there were three bullet
entries, and the fact that the accused was related to him.
Keeping in view that after the incident, immediately the
FIR was registered, there was no time gap in between the
incident and registration of the FIR. Merely because the
accused is the cousin of PW1‐Umesh Kumar, who was a
close relation, will not be a sufficient ground to discard his
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testimony as unreliable. Further the evidence of PW1‐
Umesh Kumar is supported by the medical evidence and
evidence of recovery of arms at the behest of accused‐
Basant and the evidence of recovery pistol and three
cartridges in itself as per Section 27 of the Indian Evidence
Act can be read against the accused. As far as the evidence
of PW2‐Dr. C.P. Bhainsoda, who conducted the post
mortem of the deceased on 17th September, 2008 and
gave the details of the injuries on the body of the deceased
is concerned, he prepared the Dissection Report, which
was written and signed by him (Exhibit Ka‐2) and
thereafter, the dead body was handed over to the
policemen, who brought the dead body. As per the
Dissection Report, 10 police forms which were brought by
them and one half shirt, one pant and one belt of the
deceased were taken into their possession. The same was
sealed and handed over to the police. Total six injuries
were found on the body of the deceased, in which there
were three bullet entry wounds and three were bullet exit
wound. As per his opinion, deceased‐Roop Kishore died
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due to firearm injury, which he sustained on 16.09.2008.
The injuries were sustained by him around 05:15 in the
evening. The evidence given by the Doctor was
independent and uninfluenced. Hence, the Trial Court
came to the conclusion that the evidence given by PW1‐
Umesh Kumar and PW2‐Dr. C.P. Bhainsoda has confirmed
the story of the prosecution that the deceased was shot
three times from close range.
16. PW3‐Sub Inspector P.C. Joshi, PW4‐Head Moharrir
Dan Singh Mehta, PW5‐Inspector Jagdish Singh and PW6‐
Sub Inspector Paniram Tamta are all official witnesses and
the statements given by all these witnesses in
examination‐in‐chief and in cross‐examination do not
make out a case that alleged Ajay Kumar had written the
report of the incident in Police Station Kathgodam prior to
the report given by PW1‐Umesh Kumar. The information
about the death of the deceased was received from
Haldwani police station through a memo received from
Base Hospital, Haldwani. Police Form‐13 and Photo of the
dead body (Exhibit Ka‐5) were prepared and the dead body
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was sealed and after preparing a sample seal, the dead
body was handed over to the Constable and the same was
sent to Base Hospital for dissection by Virendra and
Rajveer. Original Panchayatnama, Police Form No. 13,
photocopy, sample stamp and letter to the Doctor were
proved to be signed and written in his own handwriting by
PW3 -Sub Inspector P.C. Joshi, which are Exhibits Ka‐3 and
Ka‐7 respectively on the record and Memo of the Hospital
is Ka‐8. PW5‐ Inspector Jagdish Singh proved that the said
pistol and three cartridges were recovered on 17.09.2008
at 16:30 Hrs at the behest of the accused‐Basant. The
witness said that the accused‐Basant had told him that by
this very pistol he had killed his uncle Roop Kishore. The
pistol, shirt, object Exhibit Ka‐1, three live cartirdges,
Object Exhibit Ka‐2 and Exhibit Ka‐4 were also proved by
the police officials. During the investigation, before the
Court, a sealed bundle was opened, from which a bloody
mud stone and a simple mud stone came out, and the
official witness proved that they were seized by them on
the spot on 17.09.2008, which were object Exhibit‐9.
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Exhibits‐5, 8 and 9 were part of the bundle. Another
bundle was opened in the Court Room, from which two
spent cartridges and bullets came out, which the witness
said that they were seized by him from the place of
incident during investigation on 17.09.2008. The Test
Report of the Forensic Science Laboratory was Exhibit‐5
and Exhibit‐8. There was no evidence led by the Defence
to show that Ajay had given a written report in Kathgodam
Police Station that some unknown person had murdered
his father. No valid evidence was presented in support of
the above said suggestion that Ajay might have given any
report to PW4‐Head Moharrir Dan Singh Mehta, which
subsequently disappeared. The recovery of the arms was
supported by the documentary evidence Exhibits Ka‐11
and Ka‐12 and cartographic recovery of arms Exhibit Ka‐18
and there is no valid evidence on record to indicate that on
17.09.2008, there was a press conference at 12:30 PM.
Review of the evidence revealed that this evidence was
corroborated by the documentary evidence on record and
even in the cross examination, nothing emerged which
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would question the integrity of the witness. Since the
recovery of the weapon was made from Wahad forest,
inside the main road and since it was an isolated area,
hence, the recovery was not made in front of any
independent witness. Since the recovery was made from a
forest, which was beyond the reach of general public, the
presence of any independent witness would not be
required and the evidence of the Investigating Officer was
held to be sufficient and reliable to prove the recovery. As
per the prosecution witness PW2‐Sub Inspector P.C. Joshi,
he produced the original Panchayatnama, Police Form No.
13, photocopy, sample stamp letter Exhibit Ka‐3 and
Exhibit Ka‐7 respectively and Hospital Memo Exhibit Ka‐8.
This witness categorically stated that he had not taken any
statement of Ajay Kumar in the Panchayatnama and he
had only taken an opinion from him and Ajay Kumar had
not told him, at the time of Panchayatnama, that he had
earlier filed a report of this incident in the Kathgodam
police station. The Trial Court has rightly appreciated the
evidence led by the official prosecution witnesses PW2‐Dr.
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C.P. Bhainsoda, PW3‐Sub Inspector G.C. Joshi, PW4‐Head
Moharrir Dan Singh Mehta, PW5‐Sub Inspector Jagdish
Singh and PW6‐Sub Inspector Paniram Tamta and
returned a finding that as per the evidence given by PW1‐
Umesh Kumar and the investigation conducted by the
prosecution, the version given by PW1‐Umesh Kumar
coupled with the medical evidence given by PW2‐Dr. C.P.
Bhainsoda, who conducted the post mortem, the deceased
was shot by three bullets and recovery was made after
arresting the accused on 17.09.2008 of the pistol and the
cartridges and all the investigation was actually done on
the basis of the complaint made by PW1‐Umesh Kumar.
There was no earlier report given by Ajay Kumar, the
brother of PW‐1 Umesh Kumar, to the police station.
17. Now, the Court proceeds to examine the evidence
given by the Defense Witnesses DW1‐Puran Chandra and
DW2‐Sudhir Bijalwan. As per the version given by DW1‐
Puran Chandra, the deceased Roop Kishore was known to
him. He used to put straw in his shop. As per this witness,
on 16th September, 2008, he was going to Kathgodam
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sitting in a motorcycle with Roop Kishore around 06:00
PM. He does not know who killed Roop Kishore. This
version given by DW1‐Puran Chandra has been found to be
doubtful. However, in the cross examination, he stated
that on 16th September, 2008, at around 5:30 PM, Roop
Kishore and his labourers had come. According to him,
the work of unloading chaff was done at Chitrashila Ghat.
He used to work as a labourer there and after doing the
work as a labourer, he used to go his home in the evening.
This witness admitted that he had given a statement to the
police that after unloading the chaff, he had given Rs.
11,000/‐ to Roop Kishore. He further stated in his cross
examination that he had heard the sound of fire at
Gulabghati and saw Roop Kishore falling and he himself ran
away. This witness accepted the suggestion that he did not
see who shot Roop Kishore but he was certain that he
heard three shots. The Trial Court examined the version
given by DW1‐Puran Chandra and came to a conclusion
that this witness was making a misrepresentation
regarding driving the motorcycle with Roop Kishore at the
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time of murder because on one hand, he says that he was
driving motorcycle with the deceased and on other hand,
he says that he did not see any one murdering Roop
Kishore with pistol. In the cross examination, this witness
clearly stated that he did not see who shot, but he heard
the sound of gun‐shot from Gulabghati. This statement of
this witness appears unnatural and automatically his
presence at the scene of the incident becomes suspicious
and, therefore, the statement was not held to be reliable.
The version given by this witness that on the day of the
incident, he had given Rs. 11,000/‐ to Roop Kishore after
unloading the chaff matches with the evidence given by
PW1‐Umesh Kumar, who also stated in his cross
examination that on the day of the incident, he was
coming with his father after taking down the branch and
he had ten to eleven thousand rupees. Even in the
examination‐in‐chief, PW1 had stated that he had gone
with his father to the shop of Puran Chandra (DW1) to
unload chafft and was returning from there. Hence, the
statement of DW1‐Puran Chandra presented by the
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Defense also corroborates the prosecution story and
statement of PW1. Hence, it proved that it was PW1, who
was with his father at the time of the incident. Hence, the
said version given by DW1‐Puran Chand has rightly been
rejected by the Trial Court.
18. Now the evidence of the DW2‐Sudhir Bijalwan is to be
examined. As per his version, he was posted as Public
Information Officer since February, 2010. As per Exhibit B‐
1, the Application was filed by accused‐Basant seeking
information under Right to Information Act and the
information obtained by him is Exhibit B‐2. The same were
prepared by him under his signature and seal. The
defense, in support of his case, has produced the
information obtained under the Right to Information act
Exhibits B‐1 to B‐4 on record, in which this information has
been sought as to who all were present there in the
Vehicle 108, when deceased‐Roop Kishore had been taken
to the hospital after the murder of Roop Kishore. Proving
the information given, this witness has stated in his cross
examination that Harish, son of Kishan, Umesh, son of
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Roop Kishore and Ramesh, son of Prem were not present
at that time in 108 Service. In cross‐examiantion, this
witness stated that he was presenting the concerned PCR
Exhibit Ka‐21 in the Court and seeing the said paper, the
witness said that the name of Umesh has been mentioned
as Attendant and in the box, son is written. This witness
stated that he gave the names of Harish, Umesh and
Ramesh not being in the Ambulance on the basis of PCR
form and as per the information given, the patient was
admitted in the hospital by his Attendant and as per the
Attendant, he was in the Ambulance and the signature of
the Attendant was taken not inside the Ambulance but at
the time when the injured was admitted in the Hospital.
Hence, the Trial Court came to a conclusion that the
statement given by PW1‐Umesh that he had gone to
Haldwani Hospital with his father in 108 Ambulance was
true and hence, as per the information given in the PCR
form, the presence of the witness PW1 at the spot is not
doubted whether he accompanied deceased father in
Vehicle 108 or not. Hence, the evidence given by DW2
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Sudhir Bijalwan also supports the prosecution version.
Finally, the Trial Court proceeded to examine the motive of
the alleged murder. There was no direct evidence of any
serious animosity between PW1 Umesh, his deceased
father‐Roop Kishore with accused‐Basant, who was the
nephew of deceased‐Roop Kishore. As per the version
given by PW1‐Umesh Kumar, the accused and the
complainant and his father were doing the straw business
and they were doing very well and better than the business
of accused‐Basant. In this backdrop, the accused‐Basant
was keeping a grudge against them. On this aspect, no
cross examination was done by the Defense and hence, the
Trial Court accepted that the affected parties have
accepted the version of animosity between the
complainant and his deceased father. Accused‐Basant,
while giving his statement under Section 313 of Cr.P.C.
before the Trial Court, has also stated that seeing his straw
business doing very well, the son of the deceased‐Roop
Kishore has falsely implicated him. Hence, the element of
grudge and animosity is duly proved. The Trial Court
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further proceeded to examine the Ballistic Report Exhibit
Ka‐15, and as per this Report, the recovered shells C‐1 and
C‐4 were claimed to be of recovered weapon‐A. As per
the Ballistic Report Exhibit Ka‐15, it was found that the
cartridges sent were fired from a country made pistol and
as per the Ballistic Expert, it has not been possible to form
any opinion regarding the linkage or otherwise of the .315
/ 8mm cartridges cases marked 'C‐1' and 'C‐2' with the
country made pistol marked 'A' due to lack sufficient
individual characteristic marks on the cartridge cases
marked 'C‐1' and 'C‐2'. The plea taken by the Defense was
that the Ballistic Expert has not said in his report that the
shells presented for investigation have not been fired by
the alleged pistol, but have said that due to lack of specific
marks, it is not possible to determine compatibility
between the shells and the pistol. The Trial Court held that
in a judicial scrutiny, a country made pistol has no standard
and the status of the Ballistic Expert is only that of Expert
Evidence and an Expert Evidence can never be kept in a
definitive category.
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19. Hence, the evidence of reliable eye witness, the
medical evidence given by the Doctor and the witnesses of
the weapon recovery cannot be considered unreliable on
the basis of a vague expert evidence. The direct evidence
was held to be beyond doubt and consistent with the
medical evidence and hence, without getting the opinion
of the Ballistic Expert, the recovery made of the pistol and
the cartridges as per the confessional statement given by
accused‐Basant was sufficient to give a finding that on the
date of the incident the complainant‐Umesh Kumar (PW1),
along with his father, was going on a motorcycle after
taking Rs. 11 thousand from DW1‐Puran Chandra and
when he heard the fire shots at the time of urinating, he
saw accused‐Basant Kumar firing these shots and his father
fell down. There is no delay in lodging the FIR and there is
no evidence that any prior report was given by Ajay Kumar,
brother of Umesh Kumar‐PW1 to the police that he was in
the company of his father and he had only heard the sound
of fire shots and did not see anybody firing at his father.
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20. Keeping in view the above facts, since there was no
opinion on the Ballistic Report, the other evidence of
recovery made of the pistol and the cartridges, after the
confessional statement made by accused‐Basant was
rightly held to be sufficient evidence that on the date of
the incident, the complainant‐Umesh Kumar, on the date
of the incident the complainant‐Umesh Kumar (PW1),
along with his father, was going on a motorcycle after
taking Rs. 11 thousand from DW1‐Puran Chandra. There is
no evidence that any prior report was given by Ajay Kumar,
brother of Umesh Kumar (PW1). The presence of PW1‐
Umesh Kumar with his father on the place of incident is
also very clear from the evidence of DW1‐ Puran Chandra,
who stated that he had given Rs. 11,000/‐ to Roop Kishore
after unloading the chaff. This statement matches with the
statement given by PW1‐Umesh Kumar, son of the
deceased, that on the date of the incident, he was coming
with his father after taking down the branch and he had
ten to eleven thousand rupees and also corroborates with
the prosecution story and hence, it was PW1‐Umesh
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Kumar, who was going with his father at the time of the
incident. Further the presence of Umesh Kumar (PW1) as
an Attendant is evident from Exhibit Ka‐21, which has been
proved by DW2‐Sudhir Bijalwan. It was the Attendant, i.e.
Umesh Kumar, as shown in Exhibit Ka‐21, who had got
admitted Roop Kishore in the hospital and the signature of
the Attendant was taken when the injured was admitted in
the hospital.
21. Keeping in view the above facts, the judgment and
order dated 12.12.2012 passed by the Additional Sessions
Judge, Haldwani, Nainital in Sessions Trial No. 29 of 2009
and Sessions Trial No. 31 of 2009 titled as 'State vs. Basant
alias Chotu' does not require any interference and the
same is affirmed.
22. Consequently, the instant Criminal Appeal is
dismissed.
________________
RITU BAHRI, C.J.
__________________
ALOK KUMAR VERMA, J.
Dt: 19th September, 2024
Rathour
