Reserved IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO. 22 OF 2001 Bhuwan Singh Latwal, S/o Village Lada, Patti Rolmel, Tehsil and District Champawat. ………….Appellant. Versus State of Uttaranchal …..Opposite party. Present:- Mr. C.D. Bahuguna, Advocate for the appellant. Mr. Prabhakar Joshi, Brief Holder for the State. Coram: Hon’ble Nirmal Yadav, J. Hon’ble Sudhanshu Dhulia, J. Hon’ble Sudhanshu Dhulia, J. This Criminal Appeal arises out of an order of the trial court dated 25.1.2001 passed by the Sessions Judge, Pithoragarh in Sessions Trial No. 10 of 1994, whereby the learned Sessions Judge, Pithoragarh has convicted and Sentenced appellant Bhuwan Singh under Section 302 IPC for life imprisonment and simple imprisonment of one and a half years under Section 394 IPC. Brief case of the prosecution before the trial court was as under : An FIR was lodged on 7.3.1994 at about 10 A.M. by informant Sri Trilok Singh Karki, who is a Junior Engineer in the Electricity Department District Pithoragarh stating that one Nizamuddin, who is an employee of his department has seen the body of one Narayan Singh (who is also an employee of the Electricity Department), which is lying near Animal Hospital, Khetikhan, (in Pithoragarh). Nizamuddin thereafter found that 2 there are injuries on the head of Narayan Singh and that he is unconscious. Thereafter he was brought and admitted for treatment at Lohaghat Primary Health Centre. The informant further states that on the basis of this information given by Nizamuddin, he is lodging the police case so that necessary proceedings be initiated by the police. On the basis of said information, a check report (Exhibit Ka 2) was prepared and a criminal case being Criminal Case No. 50 of 1994 was registered under Section 307 IPC. It must be stated here that since the condition of Sri Narayan Singh was critical, he was referred to hospital at Bareilly on 7.3.1994 itself, but on way to Bareilly Hospital, he succumbed to his injuries. This development was again reported by the informant to the police on 8.3.1994 and thereafter the case was converted from Section 307 IPC to that of Section 302 IPC. This has also come in the statement of P.W. 3 Jagdish Chandra, Head Constable who was posted at Police Station Lohaghat and has stated that on the report of the informant at 10 A.M. on 7.3.1994 Case Crime No. 50 of 1994 was registered under Section 307 IPC, however when the informant reported that Narayan Singh succumbed to his injuries thereafter on 1.30 P.M. on 8.3.1994 the case was converted from 307 IPC to that of 302 IPC and it was so noted in the General Diary. The investigation in this matter was done by P.W. 9 Sri Anand Singh Gusain (Sub Inspector), who submitted the chargesheet under Sections 302, 394 & 411 IPC. The matter was subsequently committed for trial by Sessions Court. Thereafter the learned Sessions Judge, Pithoragarh vide order dated 16.6.1994 formally charged the accused under Sections 302 and 394 IPC. The precise order of the learned Sessions Judge dated 16.6.1994 was as follows :- 3 “I, M.A. Khan, Sessions Judge, Pithoragarh, hereby charge you accused Bhuwan Singh as follows : Firstly that you on 6th day of March, 1994 at about 6.15 p.m. near Animal Hospital, Khetikhan, P.S. Lohaghat, Distt. Pithoragarh, inflicted injuries on Narain Singh as a result of which he died at Khatima sometime in the night of 7/8-3-1993 on way to Bareilly Hospital, did commit murder by intentionally causing the death of Narain Singh and thereby comitted an offence punishable u/s 302, I.P.C. and within the cognizance of this Court of Session. Secondly, that you on the aforesaid date, time and place you voluntarily caused hurt to Narain Singh in committing robbery and thereby committed an offence punishable u/s 394 I.P.C. and within the cognizance of this Court of Sessions. And I hereby direct that you be tried by this Court on the aforesaid charges. Charges read over and explained to the accused in Hindi who pleaded not guilty and claimed to be tried.” As per the case of the prosecution, during investigation, it was found out that accused Bhuwan Singh i.e. the present appellant was the one who had killed deceased Narayan Singh, particularly from the statements given by P.W. 6 Bhagwan Singh and P.W. 8 Jagdish Chandra. The appellant was subsequently arrested by the police from “Bhingrara Tiraha” on 9.3.1994. On his pointing out, the weapon from which the assault was made on the deceased, namely, stone weighing about 2 kgs. was recovered. It is the further case of the prosecution that at the time of his arrest, the appellant was wearing a shirt which had blood stains on its collar and sleeves 4 and the appellant was asked to remove the shirt which was taken into possession, and thereafter, the memo was prepared as Exhibit Ka 6. The case of the prosecution in brief is that there was some enmity between the appellant and the deceased, as about one and a half year back a case was registered between them in the court of Sub-Divisional Magistrate. Thereafter on 6.3.1994, the appellant and the deceased had liquor together at Khetikhan and the appellant was last seen with the deceased at 1.30 P.M., and thereafter, at 4.30 P.M. on 6.3.1994. Thereafter only the body of the deceased was recovered. The blood stained clothes of the deceased were also taken into possession by the police and a “fard” was prepared. These clothes were later sent for medical examination and the forensic report which has come out also shows that the blood stained clothes which were recovered from the deceased and those which were recovered from the accused person have same blood group belonging to Group “B”. The last seen evidence was given by two witnesses, namely, P.W. 6 Bhagwan Singh and P.W. 8 Jagdish Chandra. P.W. 8 Jagdish Chandra in his examination in chief stated that he knew Narayan Singh, who was working in the Electricity Department. He also says that he also knows accused/appellant Bhuwan Singh, who belongs to village “Lada” “Patti- Rolmel” and that he runs a photography shop at Khetikhan for the last 10 to 15 years. He recollects that on the date of incident i.e. on 6.3.1994, they had come to his shop and after exchanging pleasantries, they had gone towards the “Bazar”. The time was about 1 P.M. to 1.30 P.M. in the afternoon. The next day he had learnt that someone had fallen and died in the valley. This witness was subsequently informed that the person who had died was Narayan Singh. In his cross- examination by the defence, this witness states that when the 5 deceased had passed his shop, he was not walking properly and it appeared that he had consumed a lot of liquor. He was going along with the accused/appellant and another person towards Lohaghat Bazar. He further states that the Inspector has taken his statement after three days of the incident. Another witness produced by the prosecution is P.W. 6 Bhagwan Singh, aged 32 years S/o Laxman Singh. He further stated that he knew the accused/appellant as well as the deceased and he also knew that the deceased was working in the Electricity Department. He recollected the date of incident and stated that he had gone to Lohaghat on the fateful day of 6.3.1994 to purchase some articles for the marriage of his cousin (sister). After purchasing these articles, he and another person, namely Ghanshyam boarded a bus which was going towards Village Devidhura Dholigaon. While he was sitting on the bus a jeep came and they left the roadways bus and boarded this jeep. According to this witness, Narayan Singh (deceased) and accused/appellant Bhuwan Singh were already sitting on this jeep. Immediately thereafter, Narayan Singh (deceased) and the accused/appellant got down from the jeep and went towards the liquor shop to purchase liquor. The witness (P.W. 6) also accompanied these two persons. The witness further says that the accused/appellant brought liquor, for which money was given to him by Narayan Singh (deceased). Thereafter all these persons boarded the jeep and reached Khetikhan at about 4 to 4.30 P.M. in the evening. All these persons i.e. Narayan Singh (deceased), Bhuwan Singh (Accused/appellant), this witness himself (P.W. 6) and Ghanshyam consumed liquor at Khetikhan. After consuming liquor, Narayan Singh got intoxicated. The witness i.e. P.W. 6 Bhagwan Singh thereafter left the company of Narayan Singh (deceased) and accused/appellant Bhuwan Singh. Then he saw the bus which 6 was going to take them to their destination, and they boarded the bus and went away. He knew about the death of Narayan Singh when he was approached by the police, later. He knew that the accused works in the Forest Corporation Department and the deceased was working in the Electricity Department. P.W. 4 Raghavendra Joshi and P.W. 5 Nizamuddin are the witnesses for the recovery and for the arrest of the accused, Bhuwan Singh. Much reliance has been placed on the deposition of these two witnesses. Both these witnesses have stated in their examination in chief that the accused/appellant was arrested in front of them but subsequently in their cross- examination they have given another version and have stated that they are not a witness of the arrest of the accused, etc. P.W. 1 Trilok Singh Karki, who is the informant is working as Junior Engineer in the Electricity Department at Lohaghat. Deceased Narayan Singh was working in the same department under the informant and was posted at Pati. On 7.3.1994 at about 8 A.M., another employee of his department, namely, Nizamuddin who was posted at Khetikhan came to his house in a jeep on which Narayan Singh was also lying in an unconscious state. Nizamuddin told the complainant that Narayan Singh has sustained injuries on his head, and that he was found by him near Animal Hospital at Khetikhan in an unconscious state. He was thereafter taken for treatment in the Primary Health Centre Lohaghat. When the body of Narayan Singh was being taken out from the jeep, he mumbled “Bhuwan” “Bhuwan” and thereafter he again went unconscious. The informant further says that the information to this effect was given by him to the police in his own handwriting and thereafter the body of Narayan Singh was taken to the Primary Health Centre. He was later the same day 7 referred to Bareilly Hospital and while he was on the way to Bareilly Hospital, he succumbed to his injuries and died. P.W. 2. Bhawan Singh is another witness produced by the prosecution, who is cousin of deceased Narayan Singh. According to this witness, on 5.3.1994 he along with deceased Narayan Singh went to their village Jamar. Narayan Singh was carrying with him his last month’s salary and had four notes of ` 500/- denomination and other smaller denomination notes as well. On 6.3.1994 in the morning, Narayan Singh left his village for Pati where he had to report for his duties. Out of the money he had earned as salary, he had given nothing to his wife, as he was informed by the wife of Narayan Singh that he has not given her any money for house expenses. He further stated that prior to this incident, about one and a half years back he had a fight with accused/appellant Bhuwan Singh about which he had also reported the matter to the court of Sub-Divisional Magistrate, and thereafter, there was a compromise between them but accused/appellant Bhuwan Singh had a grievance against the deceased and had a motive and the deceased had told this witness that he apprehends danger from accused/appellant Bhuwan Singh. In his cross-examination, this witness says that he has not known Bhuwan Singh prior to the incident and he is not aware that on what subject matter, accused/appellant Bhuwan Singh had enemity. He further says that the deceased sometimes used to consume liquor and after his death, no money was recovered from his clothes. An H.M.T. watch which he was wearing was also missing. P.W. 7 is Dr. Shivkant Gupta who was posted at Primary Health Centre, Lohaghat as Medical Officer. He examined Narayan Singh at about 10.30 A.M. on 7.3.1994 and recorded the following injuries :- 8 1. Contusion 9 c.m. X 3 c.m. on left side knee X red in colour. 2. Abrasion 3 c.m. X 2 c.m. with penetrating wound 1 c.m. X 5 c.m. X skin deep on left malar prominar. 3. (a) Incised wound 2 cm X .5 cm X muscle deep on outer end of left eye brow margin sharp – clotted blood present. 3. (b) Incised wound 2 cm X .5 cm X bone deep on forehead which is 3 cm above left eye brow. Clotted blood present. 4. Lacerated wound 2 cm X 2.5 cm X muscle deep on scalp left side which is 5 cm. behind upper border of left ear. 5. Lacerated wound 4 cm X 1 cm X Scalp deep which is 1 cm in front of Injury No. 4. 6. Incised wound 3 cm X .5 cm X bone deep which is 2 cm behind left ear. 7. Incised wound 1 cm X .2 cm X bone deep which is 9 cm behind left ear on scalp. 8. Incised wound 4 cm X .5 cm behind penne of left ear at middle. Clotted blood present. 9. Abrasion 5 cm X 2 cm on front of left ear outer side. 10. Incised wound 1 cm X .5 cm above left tragus of left ear. 11. Contusion on left eye lids with swelling of bulbar conjunction. 12. Lacerated wound 3 cm X 1.5 cm on occipital region 13. Lacerated wound 1.5 cm X .5 cm which is 5 cm above Injury No. 13. According to this witness, the duration between which these injuries have been caused could be 1/2 day long. The 9 post-mortem on the body was also conducted by the same doctor who after his internal examination found that on the left side of the scull the temporal bone was broken in pieces, brain membrane was torn, all the four chambers of the heart were empty. Pancreas and intestine were also empty. According to the medical opinion of the doctor, the death could have been possible by the injuries sustained by the deceased on his head after he went to coma. P.W. 9 Anand Singh Gusai, who is the investigating officer of the case has stated in his examination in chief that on 7.3.1994 he was posted as Station House Officer in Lohaghat Police Station and an FIR was lodged on that day on the basis of report given by the informant, Sri Trilok Singh Karki. The statement of the informant (Trilok Singh Karki) was taken by Sub-Inspector Kailash Singh Rawat but the statement of Narayan Singh (deceased) could not be taken as he was in unconscious state. The deceased was then referred to Bareilly Hospital for treatment but he died on his way. After he had been informed about the death of deceased Narayan Singh, the case was converted from Section 307 IPC to that of Section 302 IPC. On 8.3.1994 he took the statement of the informant (Trilok Singh Karki) and other witnesses and inspected the spot of incident. Thereafter he arrested the accused/appellant on 9.3.1994 at 12.35 P.M. from Bhingrara. Thereafter, they had taken the accused/appellant to the scene of crime where on his pointing out, the H.M.T. watch and the weapon i.e. the stone used in the crime were recovered. In his cross-examination, this witness (P.W. 9) has stated that there are some shops at Bhingrara where the accused was arrested but was no public witness belonging to Bhingrara. The witnesses were PW4 Raghvendra Joshi and PW5 Nizamuddin both employees of Electricity Department. 10 Apart from the above witnesses, examined during trial, the clothes which were on the body of the deceased as well as the clothes which were recovered from accused/appellant Bhuwan Singh, the soil collected from the spot and the weapon (stone) were sent for forensic examination. According to the forensic report, blood was found on all the articles which were sent for the medical examination. It was further discovered that on the weapon i.e. the stone, the hair which was recovered, was of human being. It was further stated that on the shirt which was recovered from the accused/appellant and the clothes of the deceased, the blood group was of the same group i.e. of “B” group. Further, though it was ascertained that there was blood on the weapon used in the crime i.e. the stone as well as the blood found on the soil which was recovered from the spot, but to which blood group could not be ascertained. However, one thing is made clear from the forensic report that the blood which was found on the shirt of accused/appellant Bhuwan Singh was of the same blood group which was found on the clothes of the deceased. Based on the aforesaid evidence which was there before the trial court, the trial court has come to the conclusion that though it is a case of circumstantial evidence, yet on the basis of the evidence of last seen i.e. the statement of P.W. 6 and P.W. 8 and the recovery of the watch of the deceased as well as the weapon used by him, from pointing out of the accused as well as from the forensic report leads no doubt that it was the accused/appellant who had committed murder and therefore he was convicted and sentenced under Section 302 IPC for life imprisonment and simple imprisonment of one and a half years under Section 394 IPC. 11 The counsel for the appellant Sri Chakra Dhar Bahuguna has strongly questioned the entire case of the prosecution and has argued that based on the evidence which was there before the trial court, the conviction could not have been made under Section 302 IPC. He has argued that the evidence of last seen based on the statement of P.W. 6 Bhagwan Singh and P.W. 8 Jagdish Chandra is not convincing enough to convict the accused/appellant under Section 302 IPC. Moreover, there are contradictions in the statements of P.W. 6 and P.W. 8. For this reason, even the trial court has not relied upon the statement of P.W. 8. inasmuch as P.W. 8 saw the accused/appellant with the deceased between 1 to 1.30 P.M. at Khetikhan, whereas according to P.W. 6 he had seen him around 4 P.M. at Lohaghat. Moreover, the evidence of arrest and recovery memo which is based on the evidence of P.W. 4 and P.W. 5 is also not very inspiring. Though in his examination in chief, P.W. 4 stated that the arrest was made in front of him, yet in his cross- examination he has stated that the accused was not arrested in front of him but he had already been arrested by the police, when he saw him on 9.3.1994. Similarly, P.W. 5 Nizamuddin though has categorically denied in his cross-examination that he was either a witness to the arrest or to the recovery. In fact, he has categorically stated that he had last seen the deceased at about 4 to 4.30 P.M. on 6.3.1994 and thereafter he went to his home and has not seen either the deceased or the accused after that. The manner in which the recovery has been shown and the statements of P.W. 4 Raghvendra Joshi and P.W. 5 Nizamuddin have been given to strengthen the recovery of watch and the weapon, is also not inspiring inasmuch as the recovery was made from a public place which is accessible to everyone. 12 The motive attached to the theory of prosecution in terms of statement given by P.W. 2 Bhawan Singh is also highly improbable. Firstly, Bhawan Singh is an interested witness, as he is admittedly the cousin of the deceased and though he had given a vague statement about some case between the accused/appellant and the deceased about one and a half years back, in his cross-examination this witness does not elaborate on this and moreover he clearly stated that he does not know accused/appellant Bhuwan Singh prior to this incident. Learned counsel for the appellant has further questioned the statement given by P.W. 9 i.e. Anand Singh Gusain, S.H.O. According to the case of the prosecution, the incident had occurred about 6 P.M. on 6.3.1994 and accused/appellant Bhuwan Singh was arrested from “Bhingrara” which is at a distance of 4-5 kilometers at 12.45 P.M. It has further been contended that it has come from the statement of Anand Singh Gusain (P.W. 9) that there are many shops at Bhingrara where the arrest of the accused/appellant was made but they have not been able to get even one witness from the market to be an arrest witness, but the witness shown as arrest witness are again P.W. 4 and P.W. 5 who are employees in the same department i.e. the Electricity Department, who further in their cross-examination falter. The case of the prosecution is that after they had arrested the accused/appellant somewhere in the evening from Bhingrara, they had taken him to the scene of crime where on his pointing out the H.M.T. watch and the weapon i.e. the stone used in the crime were recovered. It is stated that there were blood on the stone as well as some hair. Since there was blood spot on the shirt of the accused even on 9.3.1994 when the accused was arrested, he was asked by the Investigating Officer to take off his shirt. The shirt was also taken into possession. As 13 per the counsel for the appellant, the case of the prosecution is highly improbable inasmuch as the accused could not be wearing the same blood stained shirt even after three days of the alleged crime. Though there are gaps in the case of the prosecution story but what the prosecution has been able to prove is that the shirt they had recovered from the accused/appellant on 9.3.1994 had contained the same blood group as was contained in the blood stained clothe of the deceased. No assertions could be made from the blood recovered from the “stone” and from the soil which was recovered from the place of incident as to what blood group it belonged. However, based on this solitary evidence of “matching of blood”, from the clothes of the deceased and the shirt recovered from the accused/appellant, in a case of circumstantial evidence, the accused could not have been convicted, particularly in view of the fact that the manner in which the recovery of blood stained clothes have been made from the accused, which is denied in the cross-examination by the two witnesses of the recovery i.e. P.W. 4 and P.W. 5. It is a considered view of this Court that particularly in a case of circumstantial evidence, the prosecution must prove beyond reasonable doubt that under the circumstances all evidence is leading to the accused having committed the crime and from the chain of evidence leads to one and only one conclusion that the crime has been committed by the accused and no one else. Unfortunately, from the evidence which was there before the trial court, this conclusion could not have been arrived at by any degree of certainty. For the reasons as discussed above, this Court finds that the appeal of accused/appellant Bhuwan Singh deserves to be allowed. Accordingly, the appeal of accused/appellant Bhuwan 14 Singh is allowed. Conviction and sentence recorded against him by the trial court in respect of offences punishable under Sections 302 and 394 IPC is hereby set aside. The appellant is on bail, he need not surrender. His bail bonds are cancelled and his sureties are discharged. The Registry is directed to send back the lower court record for necessary action. (Sudhanshu Dhulia, J.) ( Nirmal Yadav, J.) 03.03.2011 Avneet