Judgment Reserved IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Jail Appeal No. 11 of 2010 Mohd. Ahsan. …..…Appellant. Versus State of Uttarakhand. …...…Respondent. Present : Mrs. Nishat Intezar, learned Amicus Curiae for the appellant. Mr. S.S. Adhikari, learned AGA for the State. Coram Hon’ble Nirmal Yadav, J. Hon’ble Sudhanshu Dhulia, J (Per Nirmal Yadav, J) The challenge in the present appeal is to the judgment and order passed by the trial court thereby convicting the appellant for the offence punishable under sections 302, 392 and 411 of the Indian Penal Code (in short “IPC”) and sentencing him to undergo life imprisonment under section 302 IPC and Rs. 5000/- as fine and in default of payment, he has been ordered to undergo further two year simple imprisonment and further sentencing him to undergo two year rigorous imprisonment under section 392 IPC and Rs. 2000 as fine, and in default of payment, he has been ordered to undergo further six month simple imprisonment. Both the sentences have been ordered to run concurrently. The criminal law was set in motion on the written complaint (exhibit Ka-1) submitted by Trilok Singh before Patwari, Patti Madkot. According to 2 complainant, his wife Smt. Kismati Devi and his two sons were living in Modkot. On the occasion of Ashtami, his both sons went to village Paanto and they came back home on 14.04.2008. When they reached their house, they found that the house was bolted from outside. When they went inside the house they found the dead body of their mother lying on the cot. They informed about the incident to the complainant on telephone. When complainant reached his house, he found his wife lying dead and her mangalsutra, ear rings and tilhadi were found missing. On the basis of written complaint (exhibit Ka-1), chick FIR (exhibit Ka- 3) was recorded on 14.04.2008 at 3.00 p.m. The investigation was conducted by Patwari Harish Chandra Pant. He inspected the spot and found studs of some bidi and cigarette, a glass in which country made liquor had been consumed and one bowl, in which some pieces of onion were lying at the spot. Panchayatnama (exhibit Ka-4) and site plan of place of occurrence (exhibit Ka-5) were prepared by him. He recorded the statements of the witnesses and sent the dead body for postmortem. On 16.04.2008, accused appellant was arrested. On interrogation, accused led the Investigating Officer and got recovered the jewellery, which was worn by deceased Kismati Devi from the road side in Jauljivi placed underneath some stones in presence of Manohar Singh, brother of deceased Kismati Devi, which was taken into possession vide memo exhibit Ka-2. The photographs 3 exhibits 12 and 13 of the place wherefrom jewellery articles had been recovered were also taken. On completion of the investigation, challan was presented and accused was charge-sheeted for the offence punishable under section 302, 392 and 411 IPC to which he pleaded not guilty and claimed trial. In order to prove its case, prosecution has produced as many as six witnesses. PW1 Trilok Singh, is the husband of deceased Kismati Devi; PW2 Kalyan Singh, is the person, who had last seen the accused with deceased Kismati Devi on 13.04.2008 at 07.00 p.m.; PW3 Ganesh Singh is step son of deceased Kismati Devi; PW4 Manohar Singh, is the brother of deceased Kismati Devi; PW5 Patwari Harish Chandra Pant, is the Investigating Officer and PW6 Dr. K.C. Bhatt, conducted the postmortem vide report Exhibit Ka-11. Accused when examined under section 313 Cr.P.C. denied the incriminating evidence put to him by the prosecution and pleaded false implication. According to appellant, Patwari was having grudge against him, as he had been reciting namaz. In his defence, he produced DW1 Mohd. Sabir alias Vinod. We have heard learned counsel for the appellant and learned AGA for the State. Learned counsel for the appellant submitted that there is no direct eye witness in the present case and prosecution case rests on circumstantial evidence only. It is submitted that except the statement of PW2 Kalyan Singh, who is alleged to have seen the accused 4 sitting with Kismati Devi at 07.00 p.m. on 13.04.2008, there is no other evidence to prove that accused had committed the offence. He further pointed out that prosecution has miserably failed to prove that from the time PW2 Kalyan Singh is alleged to have seen the accused, what happened to the deceased and in what manner her death was caused. It is argued by the learned counsel for the appellant that circumstances to prove the guilt of accused should be so complete that there is no escape from the conclusion within all human probability that the death of Kismati Devi was committed by accused appellant and none else. In support of his argument, learned counsel for the appellant referred to the judgments of Apex Court reported in (2009) 1 SCC (Cri) 104 Roop Singh alias Rupa Vs. State of Punjab and (2007) 3 SCC 755 State of Goa Vs. Sanjay Thakran and another. Learned counsel for the appellant pointed out that other witnesses namely PW3 Ganesh Singh and PW1 Trilok Singh have not proved any material fact against the accused. He further submitted that from the statement of PW3 Ganesh Singh, it is evident that Kismati Devi was second wife of his father and she was involved in brewing the illicit country made liquor and selling the same. He admitted that many people had been coming to their house to purchase country made liquor and would be visiting their house from morning till evening. He also admitted that jewellery worn by Kismati Devi was similar to the jewellery, which his own mother also possessed. 5 Learned counsel for the appellant, therefore argued that there was no specific identification with regard to the jewellery, which is alleged to have been recovered at the instance of the accused. Learned counsel further argued that no independent witness was joined at the time of alleged disclosure made by the accused nor at the time of recovery of alleged articles. Learned counsel for the appellant therefore argued that prosecution has miserably failed to prove the chain of circumstances which could unerringly points out towards the guilt of the accused. On the other hand, learned AGA submitted that PW2 Kalyan Singh has categorically stated that he had seen the accused Mohd. Ahsan sitting with Kismati Devi at her house on 13.04.2008 at 7.00 p.m. The witness had gone to purchase country made liquor from Kismati Devi but Kismati Devi told him that liquor was finished. According to him, at that time accused Ahsan was sitting with Kismati Devi and drinking liquor. He further stated that PW2 Kalyan Singh was the person who has last seen the accused with Kismati Devi and on the next morning, Kismati Devi was found dead by her son Ganesh Singh. This circumstance is further corroborated by the recovery of jewellery articles worn by Kismati Devi before her death, which were recovered at the instance of accused Mohd. Ahsan. This clearly proved that it was accused Ahsan, who had committed murder of Kismati Devi after taking away the jewellery from her person. He, therefore, argued that motive is clearly proved on 6 record that accused wanted to take away jewellery worn by Kismati Devi. On careful consideration of the rival submissions of the learned counsel for the parties and scrutinizing the entire evidence on record, we find that prosecution case rests on circumstantial evidence which consist of last seen evidence of PW2 Kalyan Singh and recovery of jewellery articles of Kismati Devi at he instance of Mohd. Ahsan. The testimony of PW2 Kalyan Singh shows that he had gone to purchase country made liquor from Kismati Devi where he saw accused sitting with her and drinking liquor. Kismati Devi told him to go away as liquor had finished. This witness, however, in the cross examination admitted that many persons had been visiting the house of Kismati Devi for purchasing liquor. He also admitted that he had not seen accused causing any injury to Kismati Devi. PW3 Ganesh Singh admitted that Kismati Devi had been brewing illicit country made liquor and selling the same. He also admitted that many persons had been visiting their house for purchasing liquor and they would visit their house any time from morning till evening. He came to the house and saw Kismati Devi was lying dead on 14.04.2008 at 11.30 a.m. Ganesh Singh admitted that Rs. 11,500/- were found safe in their house after death of her mother. He also admitted that there was no specific identification of jewellery which is alleged to have worn by his mother Kismati Devi. PW2 Kalyan Singh is alleged to have seen the accused with Kismati Devi on 13.04.2008 at 7 07.00 p.m. but there is no evidence on record as to what happened between 07.00 p.m. on 13.04.2008 and 11.30 p.m. on 14.04.2008. Learned counsel for the appellant argued that if cash of Rs. 11,500/- were lying safe in the house then it cannot be said to be the intention of the accused to commit robbery in the house. It is submitted that there was no specific identification mark of the jewellery which is alleged to have been recovered or that the said jewellery belonged to Kismati Devi only. Such jewellery is normally worn by most of the women in the hills and even alleged recovery is proved not beyond doubt. The witness of recovery is PW4 Manohar Singh, who is the real brother of Kismati Devi. Even place of alleged recovery is quite doubtful, as per prosecution, accused was residing in village Madkot whereas recovery has been made from a place which is at a distance of 44 kms. from there on the roadside at Jauljivi. Photographs exhibit 12 and 13 are also not admissible. As neither it is proved that photographs are of the place of recovery nor photographer was produced before the court. PW4 Manohar Singh also admitted that jewellery recovered is very common and is worn by most of the women of their village. Admittedly, PW4 Manohar Singh was living in the some other village and he was informed about the incident by PW1 Trilok Singh on 14.04.2008 only. 8 It is well settled proposition of law that when case rests upon circumstantial evidence, such evidence must satisfy the following test: i. the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; ii. those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; iii. the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and iv. the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. Thus, we are of the view that where a case rests squarely on the circumstantial evidence, an inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be 9 shown to be closely connected with the principal fact sought to be inferred from those circumstances. The Apex Court in the case of C. Chenga Reddy Vs. State of Andhra Pradesh has observed as under: “In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.” From the evidence on record, we find that circumstances from which conclusion of guilt has to be drawn are not fully established and the facts and circumstances available on record are not consistent with the hypothesis of the guilt nor circumstances are so conclusive in nature that to exclude every hypothesis one proposed to be proved by prosecution. Chain of circumstances to prove the guilt of the accused is not so complete and as not to leave any reasonable ground for conclusion consistent with the innocence of the accused and to show within all human probability that the murder of Kismati Devi has been done by accused. The prosecution has miserably failed to bring any evidence on record as to what happened between 07.00 p.m. on 13.04.2008 and 11.30 a.m. on 10 14.04.2008 and even the motive of robbery has also not been proved as amount of Rs. 11,500/- was found to be intact in the house. The prosecution has also failed to prove beyond doubt the recovery of alleged jewellery articles. In such circumstances, only two circumstances highlighted by the court below, while holding the conviction accused do not complete the chain of circumstances, which could rule out the possibility of any other person being assailant nor does it unerringly point out to the accused appellant being guilty of the charge of offence. We, therefore, find merit in the appeal and the same is allowed. Conviction and sentence of the accused as recorded by the trial court is set aside. Appellant is in custody. He be released forthwith unless required to be in custody in connection with any other case. Learned trial court shall ensure the compliance of the order. Let the record of the case be sent back. (Sudhanshu Dhulia, J.) (Nirmal Yadav, J.) 04.08.2010 SKS