IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 201 of 2006 Sing Bahadur @ Singh Bahadur & another. ………. Appellants Versus State of Uttarakhand. ..………. Respondent Mr. R.P. Nautiyal, Advocate for the appellants. Mr. Amit Bhatt, Addl. Government Advocate for the State / respondent. JUDGMENT Coram: Hon’ble Barin Ghosh, C.J. Hon’ble U.C. Dhyani, J. BARIN GHOSH, C. J. (Oral) In the First Information Report, it was alleged that some unknown people, first, looted the victim and, in course thereof or after looting, murdered him. However, it was reported in the said report that certain Nepalese, who were servants of the deceased, are guilty of the offences reported. After conclusion of investigation on the said First Information Report, two charge-sheets were filed against four people. In a charge- sheet, it was alleged that two of the people, thus charge-sheeted, are guilty of offences punishable under Section 394 read with Section 34 as well as Section 302 read with Section 34 of the Indian Penal Code. In the other charge-sheet, similar allegations were made, but against two different people. 2. After commitment, when the matter came up before the Sessions Judge, he framed charges, which were identical, against all the four people, though charge-sheeted by two different charge-sheets. In course of evidence, led by the prosecution to prove the charges, it was sought to be established that all the four people, thus charged, were servants of the deceased. One witness, namely, PW4, in course of his evidence, stated that he had taken in the car, of which he was the driver and which belonged to one Shanker Singh, all those four people from Tharali to Gwaldam at around 12:30 of the fateful night, around when the incident 2 had taken place. Tharali is the locality, where the incident had taken place. While deposing before the Court, PW4 stated that there were bloodstains on the apparels of those four people, who were, thus, ferried by him in the car. PW4, before deposing in the Trial Court, had recorded his statements before a Magistrate under Section 164 of the Code of Criminal Procedure. In that, he had stated almost what he had stated in course of trial, except that the people ferried by him were wearing apparels with bloodstains. 3. On the basis of the evidence, thus, collected, while two of the people, thus, charge-sheeted, have been acquitted; appellants have been convicted under Section 302 read with Section 34 of the Indian Penal Code, though not under Section 394 read with Section 34 of the Indian Penal Code inasmuch as there was no evidence of loss of any item from the custody of the deceased or finding of any item on the person of any of the accused people. 4. The learned counsel, appearing in support of the appeal, submitted that assuming the evidences against his clients, as were brought on record, are true, correct and acceptable; even then, on the basis of such evidence, a prudent person cannot come to a conclusion that the prosecution has been able to establish that his clients are guilty of the offences for which they have been convicted. 5. The fact remains that it is a case of circumstantial evidence. The prosecution has proved two circumstances; one, that the appellants were working under the deceased and they were not seen after the death of the deceased. The other circumstance is that the appellants, at around 12:30 in the night, took a car from Tharali to Gwaldam. Though PW4 deposed that the accused people were wearing apparels with bloodstains on that fateful night, but the same was not recorded while the self-same witness deposed under Section 164 of the Code of Criminal Procedure before a Magistrate. Be that as it may, even assuming the second circumstance, referred to above, which includes ferrying of the appellants from Tharali 3 to Gwaldam when they were wearing apparels with bloodstains, stands proved, the question is, whether the prosecution has been able to bring home all such circumstances, on the basis whereof, a prudent person can come to the conclusion that the case of the prosecution stands proved? We do not think that the circumstances, as were brought on record of the Court in the form of evidence, did complete the chain of circumstantial evidence implicating involvement of the appellants in the crime alleged against them. 6. We, accordingly, allow the appeal and set aside the judgment and order under appeal holding that the prosecution has failed to prove its case against the appellants and directing setting free of the appellants forthwith. 7. Appellants are in jail and, accordingly, a copy of the judgment be sent to the Superintendent of the Jail in which the appellants are presently lodged, for the purpose of ensuring that the appellants are set free forthwith unless they are to remain in jail in connection with any other crime. Let a copy of the judgment be sent to the Trial Court for implementation of the directions as above. 8. Trial Court records are not being sent back, inasmuch as, Criminal Revision is still pending. (U.C. Dhyani, J.) (Barin Ghosh, C. J.) 21.11.2011 21.11.2011 G