IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 31 of 2007 Suraj Singh Negi …Appellant Versus State …Respondent With Criminal Jail Appeal No. 206 of 2008 Suraj Singh Negi …Appellant Versus State …Respondent Mr. Lokendra Dobhal, Advocate for the appellant Mr. S.S. Adhikari, A.G.A. for State/respondent Hon’ble B.C. Kandpal, J. Hon’ble Nirmal Yadav, J. Per :Hon’ble B.C. Kandpal, J.(Oral) Since both the appeals arise out of the same judgment and order, they are being decided by this common judgment. 2- These appeals preferred by the appellant-Suraj Singh Negi under Section 374 of Cr.P.C. are directed against the judgment and order dated 12.01.2007 passed by Sessions Judge, Dehradun, in Sessions Trial No. 118/2005, State versus Suraj Singh Negi, whereby the learned Sessions Judge convicted accused-appellant Suraj Singh Negi under Sections 302 and 201 I.P.C. The Sessions Judge while convicting the accused-appellant under Section 302 I.P.C. sentenced him to undergo life imprisonment and fine of Rs.10,000/- and in default of payment of fine he has been directed to undergo further one 2 year rigorous imprisonment. The Sessions Judge while convicting the accused-appellant under Section 201 I.P.C. sentenced him to undergo rigorous imprisonment for seven years and fine of Rs.5,000/-and in default of payment of fine he has been directed to undergo further rigorous imprisonment for six months. Both the sentences were directed to be run concurrently. 3- Prosecution story in brief is that in the intervening night of 9/10-12-2003 accused Suraj Singh Negi was to guard the military store. When he was sleeping in the barrack and he had to relieve Lans Naik Harendra Bhatt who was on guard duty from 10.00 p.m.-12.00 night, at about 11.15 in the night Lans Naik Harendra Bhatt awoke the accused and asked him to relieve him and to be on duty from 12.00 night. At about 1.30 in the night Lans Naik Harendra Bhatt heard noise of explosion from store room and saw fire in the store room. Lans Naik Harendra Bhatt raised alarm and in attempt to extinguish the fire, started pouring water in the store room. On hearing cries of Lans Naik Harendra Bhatt, another army man Anand Singh reached there and helped him in extinguishing the fire by throwing the water inside the store room through its window. They ultimately succeeded in extinguishing the fire and peeped through the window and found a badly charred body of a person lying inside. Lans Naik Harendra Bhatt informed his next superior B.H.M. who telephonically informed the Senior Commandant. They reached at the place of occurrence and found a burnt and charred dead 3 body inside the storeroom. They also found a military jersey along with nameplate and military shoes lying by the side of the dead body. As accused was on Santry duty, they called for the accused but he did not turn up and as half burnt military dress was lying along with dead body with name plate, they though that accused has been burnt to death. Thereafter, they called for accused’s father who recognized the body as that of his son the present accused Suraj Singh Negi. In the morning police was informed through written information (Ext.Ka.12) by the military authorities and then Panditwari Chowki Incharge of P.S. Cantt Sri Surendra Singh Bhandari (PW-1) went to the spot and found a completely burnt dead body lying therein with military dress and nameplate thereon. He also found the father of the accused along with few relatives present there. Some military personnel were also there and they told that S.I. that the body is of Rifleman Suraj Singh Negi. The S.I. appointed Panchas, prepared Panchayatnama (Ext.Ka.1) and other necessary papers like Photo Lash, Challan Lash etc. (Ext.Ka.2 to Ext.Ka.4) and after sealing the dead body, sent the same for post mortem through Constable Deepak Kumar and Surya Prakash Dabral. Dr. R.K. Tamta (PW-5) conducted the autopsy on the dead body and found 95% burn injuries and was of the view that deceased died on account of asphyxia in the night of 9-10/12/2003 due to aforesaid 95% burn injuries. Thereafter, certain monetary benefits to the father of accused and thus the chapter closed there presuming death of the accused in said fire in store room. However 4 accused was arrested in connection with some crime by police of Kotwali Bhatinda Punjab and there he admitted that he is deserter from army. Police Station Kotwali Bhatinda passed this information to Dehradun Police and S.I. Surendra Singh Bhandari (PW-1) was directed by senior officers to re-enquire the matter, who went to District Bhatinda and came to know that accused Suraj Singh Negi, the person whom the military personnel as well as his father believed to be dead, is not dead but alive. S.I. Surendra Singh Bhandari on return to Dehradun lodged a oral report at P.S. Cantt which was reduced in writing by Constable Raj Kumar and thus a case crime under Sections 302,201,120B and 420 I.P.C. was registered against the accused as well as his paramour Renu vide Ext.Ka.5 and Ext.Ka.7 by Constable Clerk Raj Kumar (PW-8). Investigation of the case was taken over by PW-12 Vinod Kumar Sharma, the then S.O. Cantt. Dehradun, who recorded the statement of accused in which he confessed his guilt. Onward investigation w.e.f. 11.9.2005 was handed over to S.I. Vijay Chand Singh Gusain who recorded the statements of few other witnesses and ultimately submitted charge sheet (Ext.Ka.17) against the present accused-appellant Suraj Singh Negi in the court of Chief Judicial Magistrate, Dehradun. 4- After submission of the charge sheet on 22.11.2005 case of the accused-appellant was committed to the court of Sessions and the learned Sessions Judge after hearing the parties framed charge of offence punishable under Sections 5 302/201/120B/420 I.P.C. against accused- appellant. The accused pleaded not guilty and claimed to be tried. 5- The prosecution in order to prove its case got examined as many as 12 witnesses, namely, PW-1 S.I. Surendra Singh Bhandari, PW-2 Mahendra Singh, PW-3 Mangal, PW-4 Kamal, PW-5 Dr. R.K. Tamta, PW-6 Anand Singh, PW-7 Lans Naik Mohan Prasad, PW-8 Constable Raj Kumar, PW-9 Lans Naik Harendra Bhatt, PW-10 Subedar Major Dilwar Singh Kandari, PW-11 Jagat Singh Chauhan and PW-12 Vinod Kumar Sharma I.O. 6- After the evidence of the prosecution was over, the statement of the accused-appellant was recorded under Section 313 Cr.P.C. The accused denied that he burnt Kaluwa to death in the night of 9/10-12-2003. He also refused having given any confessional statement to the police as well as concealing the clothes of the deceased and its recovery on his pointing out. However, the accused did not adduce any evidence in their defence. 7- The trial court having considered the entire evidence on record and hearing learned counsel for parties found guilty accused-appellant Suraj Singh Negi of the offence punishable under Sections 302 and 201 I.P.C. and convicted and sentenced him as referred to paragraph-1 of the judgment, vide impugned judgment and order dated 12.1.2007. 8- Feeling aggrieved by the aforesaid impugned 6 judgment and order, accused-appellant Suraj Singh Negi has preferred Criminal Jail Appeal No. 206/2008 through jail, whereas he has preferred Criminal Appeal No. 31/2007 before this Court, which have been placed before us for disposal. 9- We have heard Mr. Lokendra Dobhal, learned counsel for the appellant, Mr. S.S. Adhikari, A.G.A. for the State/respondent and perused the record. 10- It appears from the evidence on record that there are three main circumstances which the prosecution has put forward for bringing the guilt of the accused to home. The first circumstance is that nameplate of the accused was found with the dead body of the deceased. Another circumstance is that recovery of the clothes of the deceased was made on the pointing out of accused in the presence of PW-3 Mangal and PW-4 Kamal. Another circumstance is that the accused being in military service was posted as Rifleman at the place of occurrence at the material time and after the fire was seen broken out in the store room where the accused was posted, the whereabouts of the accused were not known. It was on the basis of the burnt and charred dead body recovered from the place of occurrence which was not identifiable. It was presumed that the dead body was of the accused. 11- The trial court has although mentioned 12 circumstances in order to connect the accused with the commission of crime, but, we think, out of 12 circumstances, many of the circumstances are not 7 relevant and do not point the guilt of the accused towards the commission of crime. The prosecution version is that the accused was, at the material time, serving in Army and posted as Rifleman in I.M.A., was married, had developed illicit relation with Honey @ Renu and on account of the same he deserted Army almost at the same time when the I.M.A. store caught fire and accused was posted on guard duty in the night of 9/10-12-2003. A person died in the said fire and his charred body was recovered from the store and this fact has not been denied by the accused. When the accused was not found present at the time of fire in the store room and military personnel found certain clothes and badge of accused lying nearby the charred body, they called the father of the accused under the impression that accused has died on account of burn and the father and other colleagues of the accused also got the impression that it was none except the accused, who was on duty, had burnt and died. The above aspect of the case has not been disputed by the defence except the fact that till date no report has been lodged regarding death of Kaluwa or any missing report of any missing person. Nonetheless, now it is admitted to the accused that the accused deserted the Army along with his paramour and therefore the body recovered from the store was not of accused but of someone else. The prosecution has made an attempt to prove that the body was of Kaluwa on the basis of confessional statement of accused which is admittedly not permissible and on the basis of recovery of certain clothes allegedly belonging to 8 deceased Kaluwa. It was presumed that Kaluwa had died in the said incident. 12- Now, we have to see as to whether the recovery of clothes of deceased Kaluwa actually indicates the commission of crime on the part of the accused or not. PW-3 Mangal has been produced by the prosecution who has stated that some clothes were recovered on the pointing out of accused Suraj Singh Negi from ‘Khandhar’ and the accused confessed that these clothes belong to Kaluwa. This witness in the cross-examination has stated that the clothes were recovered from ‘Khandhar’, but it is quite strange that even after a period of more than one and a half years the shirt and the pant allegedly belonging to deceased Kaluwa, were neat and clean and the same were not dirty. The incident in this case had taken place on 9/10-12-2003, while the recovery of alleged clothes was made on 13.8.2005, hence, it is quite surprising that even after a long time when the clothes were kept in a ‘Khandhar’ the same were found neat and clean. Therefore, this type of recovery of the clothes from ‘Khandhar’ creates a serious doubt and gives a big jolt to the prosecution case. Further, PW-4 Kamal is another witness before whom the alleged recovery of the clothes belonging to deceased Kaluwa was made, but this witness in his cross-examination also stated that although Kaluwa had been his maternal uncle but he was not in visiting terms at the house of Kaluwa. This witness has also stated that he cannot tell as to whether the clothes recovered on the pointing out of accused Suraj Singh Negi belong 9 to deceased Kaluwa or not. Therefore, on the basis of this type of evidence adduced by the prosecution the recovery of the clothes belonging to deceased Kaluwa completely becomes suspicious and doubtful and merely on the basis of this type of recovery it cannot be said that the accused had in fact any aid in the murder of Kaluwa and it was actually Kaluwa who died in the same incident of fire. 13- Another circumstance creating doubt in the said recovery of the clothes is the gap between date of occurrence and the recovery of clothes. The incident in this case took place on 9/10-12-2003, while on 8.7.2005 it was revealed that the accused is alive and is in the custody of Bhatinda police. From the statement of PW-12 Vinod Kumar Sharma, the then S.H.O. P.S. Cantt, it is clear that on 25.7.2005 he applied for warrant ‘B’ and the accused ultimately could reach Dehradun jail on 3.8.2005 and then 8.8.2005 this witness with the permission of the court recorded the statement of the accused, who confessed his guilt and volunteered to get the concealed clothes recovered. Ext.Ka.14 has been proved by this witness and this document reveals that the accused had given all the minute details of the place where he had concealed the clothes of Kaluwa. Thus, on 8.8.2005 itself the investigating officer came to know about the exact location of the place from where such concealed clothes could be recovered, but instead of direct recovery of clothes the investigating officer applied for and obtained the accused on police remand on 10 13.8.2005 and ultimately the said clothes could be recovered. Therefore, it is not clear as to why the police deferred the recovery of the alleged clothes from 8.8.2005 till 13.8.2005, while the exact place was known to the police. 14- Another reason for creating suspicion on the said aspect is that the accused could have concealed the clothes soon after the murder on 10.12.2003. The recovery in this case took place on 13.8.2005, almost after 20 months of the incident. Therefore, it is unbelievable that such a person, who has already burnt another would at all take off the clothes of such a person and take pain of concealing the same at some isolated place for a long time. The accused after the deceased was burnt and died, would easily burn the clothes of that person either at the same place or some other place. The clothes were not such valuable articles that one would like to use it at subsequent stage. All these circumstances show that the recovery is tainted and does not inspire confidence at all. 15- The second circumstance is that nameplate of the accused was also found along with the dead body at the place of occurrence. In order to discuss this aspect it would be relevant to scrutinize the evidence of PW-10 Dilwar Singh Kandari, who has stated in his statement that he was Subedar Major at the relevant time of the incident and he saw a burnt and charred body lying over there and a Government jacket on his body, but the nameplate affixed on the jacket was burnt and nothing could 11 be readable on the nameplate. This type of statement of PW-10 clearly indicates that when the nameplate affixed with the dead body was not readable at all, then how it could be presumed that nameplate affixed with the dead body was of accused Suraj Singh Negi. Therefore, this circumstance also does not indicate the guilt of the accused beyond reasonable doubt. 16- The trial court has given the reason for connecting the accused with the commission of crime that the charred body of the deceased was recovered from the store under guard duty of the accused at the relevant time and it was for the accused and none else to explain as to how, when he was on guard duty, someone outsider made his entry in the store room and ultimately found dead in the store room. The trial court has further recorded the reason that no explanation was came forward from the side of accused in this regard and under these circumstances, the only conclusion can be inferred that it was the accused who first brought the deceased in the store and burnt him and thereafter fled from the military. This observation made by the trial court appears to be absolutely baseless. It is the primary duty of the prosecution to prove the guilt of the accused beyond reasonable doubt. The burden could not have been shifted on the shoulder of the accused to explain his conduct. The prosecution has utterly failed in establishing the guilt of the accused beyond reasonable doubt. Nothing incriminating circumstance could be placed by the prosecution 12 before the court to connect the accused with the commission of crime and to suggest that it was the accused and none else who committed this crime. 17- For the reasons stated above, we are of the view that there is no clinching and cogent evidence available on record which may connect the accused with the commission of crime. The charge levelled against the accused-appellant has not been proved beyond reasonable doubt. 18- Accordingly, Criminal Appeal No. 31/2007 is allowed. Conviction and sentence awarded by the trial court is set aside. Consequently, appellant Suraj Singh Negi is acquitted of the charge of offence punishable under Sections 302 and 201 I.P.C. Accused-appellant is in jail. He be released forthwith, provided he is not required in connection with any other crime. 19- Criminal Jail Appeal No. 206/2008 is disposed of accordingly. 20- Let the record be sent back to the trial court for compliance of the order passed by this Court. (Nirmal Yadav, J.) (B.C. Kandpal, J.) 18-06-2010 SP