Dist rict – Cham oli v. St at e of Ut t aranchal

Judgment

1. This is an appeal direct ed against t he j udgm ent and order dat ed 28 t h January, 1981 passed by t he Sessions Judge, Cham oli in Sessions Trial No. 4 of 1980, St at e Vs. Mangal Singh convict ing t he appellant u/ s 328/ 511 I .P.C. and 315/ 511 I .P.C. and sent encing him t wo years R.I . under bot h t he count s separat ely. Feeling aggrieved by t he said j udgm ent and order, t he present appeal has been preferred.

2. Brief fact s for t he disposal of t his appeal are t hat Sm t . Kalpi Devi who was t he wife of Bhup Singh had given birt h t o t hree children and t hereaft er t he husband of Kalpi Devi, i.e., Bhup Singh got him self operat ed. Thereaft er, Sm t . Kalpi Devi developed illicit relat ionship wit h t he appellant - Mangal Singh w it h t he result she got pregnant by him . The accused- appellant at t em pt ed t o adm inist er poison t o her but she did not t ake t he ent ire quant it y and only consum ed a part t hereof. Subsequent ly, t he aft ernoon of

06.09.1978, she m et wit h t he appellant in Silani Dhar Pat a sit uat e in t he sam e village and she inform ed t he appellant t hat she had not consum ed t he ent ire packed and she only t ook in part ially. The appellant t herefore at t em pt ed t o push her down in a dit ch unsuccessfully w it h t he int ent ion t o prevent t he child in her w om b being born alive. The said occurrence was wit nessed by Raj Singh, Bharat Singh, Madan Singh, Ganpat Singh and Mahipal Singh while t hey were ret urning t o t heir village from school. Lat er on t he com plainant , husband of Kalpi Devi was inform ed by his wife t hat she is having a child in her wom b who was of t he accused- appellant and she narrat ed t he ent ire incident t o her husband. The com plainant - husband went t o t he pat wari circle im m ediat ely and t he pat wari was not available in his headquart er, hence he filed t he com plaint before t he Chief Judicial Magist rat e, Gopeshwar on 09.09.1978 and t he learned Magist rat e order t o regist er t he case and direct ed t o invest igat e t he said com plaint . The said com plaint & order of t he learned Chief Judicial Magist rat e was handed over t o t he pat wari aft er a lapse of about 8 days, i.e., on 17.09.1978 by t he com plainant him self. Thereaft er, chick w as prepared by t he I nvest igat ing Officer and t he invest igat ion was conduct ed by t he pat t i pat wari and it culm inat ed int o t he chargesheet .

3. The accused- appellant st ands for t rial before t he t rial court and charges were fram ed against accused- appellant and t he charges were am ended lat er on by t he learned Sessions Judge. The appellant denied t he charges and claim ed t he t rial.

4. The prosecut ion, in support of his case exam ined Sm t . Kalpi Devi as PW- 1 who is t he vict im of t he incident and she narrat ed t he ent ire st ory as indicat ed above in preceding para 2 of m y j udgm ent . Madan Singh- PW2 who is t he st udent and was com ing from his school at t he t im e of incident and he saw t he incident of pushing

down Kalpi Devi int o dit ch from a dist ance of one fulong. Sri Bhup Singh- PW3, who is t he husband of Kalpi Devi has st at ed t he ent ire incident and he lodged t he com plaint before t he C.J.M. and t hereaft er handed over t he said com plaint t o t he pat t i pat wari on

17.09.1978. The recovery of t he said packet of poison was also m ade from possession of t he com plainant at his residence by t he I nvest igat ing Officer on t he next dat e. The said packet was sent t o t he chem ical exam iner for exam inat ion and it was repor t ed t hat t he said packet cont ains t he zinc phosfide. The prosecut ion also filed t he affidavit of Shri Lalit a Prasad Chaudhary, Head Nazir, Collect orat e, Malkhana, Gopeshwar and Sri Bachan Singh, Chaprasi of Pat wari, who were form al wit nesses of t he case.

5. Thereaft er, t he accused was exam ined u/ s 313 Cr.P.C. The accused denied all t he allegat ions m ade against him and he has st at ed t hat he has been falsely im plicat ed in t he case. I t was also alleged in t he st at em ent t hat Sist er- in- law of Bhup Singh had m urdered t he sist er- in- law of t he appellant in t he year j 1976 and t hereaft er t he case was t erm inat ed int o t he com prom ise. There is enm it y in bet ween t he part ies, hence he has been falsely im plicat ed in t his case.

6. The learned Sessions Judge aft er appraisal of t he evidence convict ed t he accused- appellant as indicat ed above.

7. Heard learned counsel for t he part ies and perused t he record.

8. I t is t o be seen as t o whet her t he charge of at t em pt ing t o adm inist er t he poison t o Sm t . Kalpi Devi wife of Bhup Singh wit h t he int ent ion t hat t he child in her wom b m ight not be born alive is believable or not . I t is furt her t o be seen as t o whet her t he appellant had at t em pt ed t o push Sm t . Kalpi Devi dow n t he dit ch unsuccessfully w it h t he int ent ion t o prevent t he child in her w om b being born alive. Learned counsel for t he appellant cont ended t hat t he t rial court had erred in holding t hat t he prosecut ion has proved t he charges against t he appellant beyond reasonable doubt . I t was furt her cont ended t hat t he evidence of Kalpi Devi did not support t he prosecut ion version and t his is a case of lack of evidence and t he learned counsel for t he appellant assailed t he evidence of Madan Singh- PW3 and his evidence is not reliable.

9. Whereas t he accept ance of puria and handing over it t o Kalpi Devi- PW1 is concerned, it is m erely a preparat ion and it is not an at t em pt . Mere preparat ion is not punishable under t he provisions of I .P.C. I f she would have st at ed before t he court t hat she had consum ed even a part of t he poison t hat would have been an at t em pt t o com m it an offence and t hat at t em pt would have been punishable under t he provisions of penal code. The evidence of Kalpi Devi- PW1 did not est ablish t he prosecut ion case. I t is also pert inent t o m ent ion here t hat t his wit ness had not support ed t he prosecut ion version. The prosecut ion has not sought t he perm ission t o cross exam ine t he wit ness and t he wit ness was not cross exam ined by t he prosecut ion. Her evidence did not support t he prosecut ion inst ead she support ed t he defence. The appellant hence can rely on t hat evidence. I t has been held in M u k h t i a r A h m e d A n sa r i Vs. St a t e ( N CT o f D e l h i ) r e p o r t e d i n 2 0 0 5 SCC ( Cr i ) 1 0 3 7 a n d Ra j a Ra m Vs. St a t e o f Ra j a st h a n r e p o r t e d i n 2 0 0 5 SCC ( Cr i ) 1 0 5 0 .

10. The prosecut ion has adduced t he evidence of Madan Singh- PW2 in support of his case. He has st at ed t hat he was com ing from t he school and he was aged about 13 years at t he t im e when he gave t he evidence before t he court . He has st at ed t hat he, Raj esh Singh, Bharat Singh, Ganpat Singh and Mahit ab Singh were com ing on t he scoot er from t he school. They heard t he noise from t he sit e of Silaj idhar t hereaft er t hey saw t hat Mangal Singh- appellant was pushing Sm t . Kalpi Devi t owards t he dit ch and Kalpi Devi was m aking t he noise. The incident was seen from t he dist ance of one fulong. The evidence is it self is not reliable as t he wit ness Kalpi Devi has not st at ed t hat such incident t ook place. Apart t his, PW- 2 had seen t he incident from a dist ance of one fulong. From one fulong, it would not be possible t o recognize t he faces of t he persons present at t he spot . Bhup Singh- PW3, t he husband of Kalpi Devi- PW1 is not t he wit ness who has seen t he second occurrence. He had only st at ed t hat he handed over t he packet t o t he pat wari. I t is also pert inent t o m ent ion here t hat PW3 filed t he com plaint before t he C.J.M. on 09.07.1978. Though t he m agist rat e direct ed t o regist er and invest igat e t he case on t he sam e dat e, i.e., 09.07.1978. Thereaft er, t he com plainant alongwit h t he order of t he learned C.J.M. t ook it t o hand over t o t he Pat wari him self but he did not hand over t o pat wari t ill

17.07.1978. He handed over it t o Pat wari on 17.07.1978 and on being asked about t he delay, he inform ed t hat he was ill during t hat period. The explanat ion for t he delay given t o t he pat wari by t he com plainant was recorded by him in t he GD. When he appeared before t he court , he did not st at ed t hat he was ill during t hat period. The explanat ion had been proved before t he court . I t is also pert inent t o m ent ion t hat it was t he dut y of t he com plainant t o hand over t he said packet on 17.07.1978 so t hat m at t er would have been invest igat ed properly. The said packet would have been given at t he t im e of filing of t he com plaint before t he learned C.J.M. He did not hand over t he said packet t o t he learned C.J.M. or pat wari and he had not given any reason as t o why t he said packet was not given t o t he learned C.J.M. at t he t im e of filing t he com plaint or pat wari im m ediat ely. As a m at t er of fact he should have handed over t his packet t o t he learned C.J.M. at t he t im e of filing of t he com plaint so t hat it could not be said t hat t here m ight be any m anipulat ion in t he cont ent s of t he packet . Sri Bhup Singh- PW3 had not given any cogent reason as t o why t he said packet was not handed over t o t he learned C.J.M. or t he pat war i at t he t im e of lodging of t he com plaint & report respect ively. This packet rem ains wit h t he com plaint for a pret t y long t im e and it was ruled out t hat t he said packet was m anipulat ed by t he com plainant . I t is also pert inent t o m ent ion here t hat t he prosecut ion has not adduced t he ot her wit nesses, Raj Singh, Bharat Singh, Ganpat Singh and Mahit ab Singh. They were t he wit nesses of t he second incident and t he t est im ony of Kalpi Devi and Madan Singh has been held unreliable. Hence it was obligat ory on t he part of t he prosecut ion t o adduce t he evidence of t he ot her wit nesses. I n absence of t he credible and cogent evidence of t he prosecut ion, non exam inat ion of t he ot her independent wit ness leads m e t o t ake adverse inference against t he prosecut ion. The prosecut ion adduced t he evidence in support t o above version. Sm t . Kalpi Devi who is t he st ar wit ness of t his case had st at ed t he ent ire incident as indicat ed in para 2 of m y j udgm ent but she had m ade variat ion in t w o places in her st at em ent s. At t he first place she had st at ed t hat a packet was given t o her and t hat packed was opened by her but she did not consum e it whereas in t he com plaint it is alleged t hat she had consum ed it part ially. Wit h regard t o t he lat er part of t he incident she had not support ed t he prosecut ion and she has st at ed t hat t he appellant asked as t o w het her she consum ed t he said packet , she has st at ed t hat she had not consum ed it . Sm t . Kalpi Devi had also denied t he fact s t hat she was pushed down t o dit ch. I n lat er part of t he incident she had not support ed t he version of t he prosecut ion.

11. I am of t he view t hat t he learned Sessions Judge had erred in holding t he appellant guilt y u/ s 328/ 511 I .P.C. and 315/ 511 I .P.C. The prosecut ion evidence does not inspire confidence. The prosecut ion had not proved t he case against t he appellant .

12. The appeal is allowed. The convict ion and sent ence awarded against t he appellant by t he t rial court per j udgm ent and order dat ed

28.01.1981 are set aside. The appellant Mangal Singh is acquit t ed for t he charge levelled against him under sect ion 328/ 511 I .P.C. and 315/ 511 I .P.C. The appellant is on bail. He need not surrender before t he court below t o serve t he sent ence. His bail bonds are cancelled and suret ies are discharged.

13. Let t he record along wit h a copy of t his j udgm ent be sent back t o t he t rial court im m ediat ely for necessar y act ion and com pliance and t he com pliance report t o be subm it t ed wit hin four m ont hs. 28 t h March, 2006 Shiv ( J.C.S. RA W A T, J.)