IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No. 2 of 2003 Harish Singh & Others .…. Appellants/Accused Versus State of Uttaranchal …………… Respondent October 12, 2009 Smt. Pushpa Joshi, Advocate for the appellants. Mr. M.A. Khan, Brief Holder for the State/respondent. HON’BLE DHARAM VEER, J. This appeal, preferred by the appellants under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.), is directed against the judgment and order dated 5.12.2002 passed by the Sessions Judge, Bageshwar in Sessions Trial No. 47 of 2000, State v. Harish Singh S/o Nain Singh & Ors., whereby learned Sessions Judge has convicted the appellants/accused, viz., Harish Singh S/o Nain Singh, Sujan Singh, Dalip Singh, Keshar Singh, Harish Singh S/o Aan Singh and Ramesh Singh under Section 201 of Indian Penal Code, 1860 (for short, IPC) and each of the appellants/accused have been sentenced to undergo R.I. for three years and fine of Rs. 1000/- to each convicts and in default of payment, each of the appellants/accused have been directed to undergo one month’s simple imprisonment. However, each of appellants/accused were acquitted for the charge levelled against them under Section 302 IPC. 2. In brief, the prosecution case is that Smt. Savitri Devi (PW2) moved an application on 17.3.1999 to Patti Patwari, Khatigaon with the averments that on 17.2.1999, her husband Heera Singh had gone to Bageshwar in connection with a case in the court of Judicial Magistrate 2 but he did not return till the date the said application was made i.e. 17.3.1999. In between, she enquired from her relatives but her husband was not traceable. Thereafter she came to Bageshwar and enquired from his advocate Vinod Bhatt who told her that 15.3.1999 was fixed in the aforesaid case before the Judicial Magistrate but her husband did not turn up on that day. She expressed her doubt that some mishappening might had happened with her husband and, therefore, he neither returned to his house nor was appearing on the dates fixed in the aforesaid case. She had further expressed her doubt on Govind Nath, ex-Patwari and alleged him that he had threatened to kill her husband when he registered the case against her husband and arrested him. 3. With the aforesaid averments PW2 Savitri Devi moved an application Ex. Ka-4 with the request to lodge the report and find out her husband Heera Singh. Patwari made a report on that application that Heera Singh was missing from Bageshwar and recommended to lodge the report in Bageshwar police station. The report was received in the police station on 14.4.1999. The entry was made in the GD. Copy of the GD is Ex. Ka-14. When no action was taken by the police, then Savitri Devi again moved an application Ex. Ka-3 on 9.4.1999 before the District Magistrate, Bageshwar stating therein that she had made a missing report of her husband Heera Singh on 17.3.1999 before the Patti Patwari, Khatigaon but no action was taken due to strike of Patwaris. She also tried her best to search her husband but he could not be traced. She had further stated that she received two anonymous letters wherein name of the person responsible for this crime was disclosed. She further sought investigation into the matter. When no action was taken by the police, she again moved an application Ex. 3 Ka-2 on 20.4.1999 before the District Magistrate, Bageshwar stating therein that prior to this application, she had also moved an application on 9.4.1999 but no action was taken on that application. When this issue was raised by the Gram Pradhans on 15.4.1999 during BDC meeting, then the Superintendent of Police had assured for investigation into the matter and police had come on 16.4.1999 and had taken the suspected person but lateron he was released. She had further stated that at about 12 O’clock on 20.4.1999 i.e. date of making this application, some clue was traced out as some part of the body was seen by the villagers in Bhadrakali village which might be confirmed after the enquiry. Accordingly, she requested to send the police force on the spot for enquiry. District Magistrate directed the Inspector, Kotwali, Bageshwar to visit the spot and take action accordingly. Entry of this report was made in the GD on 21.4.1999. Carbon copy of the GD is Ex. Ka-15. On 21.4.1999, police recovered pieces of bones from the forest of village Bhadrakali. Police also recovered two boris and a piece of blue coloured sweater and prepared recovery memo Ex. Ka-7. Inquest report of pieces of bones Ex. Ka-6 was also prepared on 21.4.1999. Along with the inquest report, the I.O. also prepared the police form no. 13 Ex. Ka-8, sketch of dead body Ex. Ka-9 and letter to the Medical Superintendent for conducting the post mortem Ex. Ka- 10. Recovered pieces of bones and hairs were sent to the Forensic Laboratory, Agra for chemical examination and after the chemical examination of the same, Assistant Director submitted his report Ex. Ka-11. Pieces of bones were sent for post mortem. PW8 Dr. N.D. Punetha conducted the post mortem and prepared the post mortem report Ex. Ka-5. During the course of investigation, the I.O. inspected the place of occurrence and prepared the site plan Ex. Ka-17. During the course of investigation, 4 the I.O. recorded the statements of the witnesses and after completing the investigation filed the chargesheet Ex. Ka- 12 under Sections 302/201 IPC against the appellant no. 3 Dalip Singh and appellant no. 5 Harish Singh S/o Aan Singh. Separate chargesheet Ex. Ka-13 under Sections 302/201 IPC was filed against the appellant no. 1 Harish Singh S/o Nain Singh, appellant no. 2 Sujan Singh, appellant no. 4 Keshar Singh and appellant no. 6 Ramesh Singh 4. Learned Chief Judicial Magistrate, Almora after giving the necessary copies of the documents to the appellants/accused as prescribed under Section 207 CrPC, committed the case to the Court of Sessions on 11.1.2000. 5. On 12.9.2000, learned Sessions Judge, Bageshwar framed the charges against each of the appellants/accused under Sections 302 and 201 IPC. The charges was read over and explained to each of the appellants/accused, who pleaded not guilty and claimed to be tried. 6. To prove its case, the prosecution has examined PW1 Rajan Singh; PW2 Smt. Savitri Devi, the complainant and the wife of the deceased; PW3 Govind Singh S/o Ram Singh; PW4 Rajendra Singh; PW5 Shamsher Singh Mehra; PW6 Govind Singh S/o Babe Singh; PW7 Prayag Singh; PW8 Dr. N.D. Punetha, who conducted the post mortem; PW9 S.I. Harendra Singh Bist, the I.O. of the case and PW10 Laxmi Prasad, Head Moharrir. 7. Thereafter, statements of each of the appellants/accused were recorded under Section 313 CrPC. The oral and documentary evidence were put to 5 them in question form, who denied the allegations made against them and stated that they have been falsely implicated in the case. However, in defence, they did not produce any documentary or oral evidence. 8. After hearing learned counsel for the parties and after appreciating the evidence available on record, learned Sessions Judge, Bageshwar vide his judgment and order dated 5.12.2002 convicted and sentenced to each of the appellants/accused as discussed above. Against the aforesaid judgment and order dated 5.12.2002, the appellants/accused have preferred the present appeal. 9. I have heard learned Counsel for the parties and have carefully perused the entire material available on the record. 10. Before any further discussion, it would be pertinent to reproduce the post mortem report Ex. Ka-5 prepared by PW8 Dr. N.D. Punetha after conducting the post mortem on 22.4.1999 at 11.10 am and the same are reproduced as below: “Only five pieces of bony skeleton are seen. One bigger of skeleton bone is looks like skull of human being. The pieces of bone consist of black hairs. Rest pieces are smaller in size. The bony pieces are preserved. No opinion can be given as such bony pieces are preserved.” 11. To prove the aforesaid post mortem report Ex. Ka-5, the prosecution has examined PW8 Dr. N.D. Punetha, who has proved the same and has stated that on 22.4.1999, he was posted at C.S.C. Bageshwar as Medical Officer. He has further stated that five pieces of bones were found after opening the sealed bag brought to him by Constable Ramesh Lal. Among those pieces of bones, one piece was big in size and rest were small. All pieces of bones were 6 preserved for examination in order to know the cause of death. After conducting the post mortem, the concerned sealed envelope was handed over to Constable Ramesh Lal. In his cross-examination, this witness has stated that skull bone might be of Van Manav, Chimpanzee, Monkey or human being. 12. To further prove its case, the prosecution has examined PW1 Rajan Singh whose statement was recorded on 12.4.2001. This witness has stated that about two years ago he had gone at the shop of appellant/accused no. 1 Harish Singh S/o Nain Singh at 6 pm to purchase bidis. At that time, other appellants/accused, viz,. Harish Singh S/o Aan Singh, Sujan Singh, Ramesh Singh, Dalip Singh and Keshar Singh were present in the shop and were taking liquor. They brought three bottles of wine through him. He also drank liquor in that shop. Thereafter shopkeeper Harish Singh told him to go to the forest. Harish Singh took along with him two vacant boris, one khukhri, one vadiyat (a sharp edged weapon) and two torches. This witness has further stated that thereafter he went to the forest along with all the appellants/accused and reached in front of the Bhadrakali temple. Harish Singh, shopkeeper and Ramesh Singh had taken out the dead body of Heera Singh from the drain (gadhera) in front of the Bhadrakali temple in torch light. At that time, it was 10 pm. Appellants/accused Harish Singh (shopkeeper) and Ramesh Singh cut the dead body with vadiyat and khukhri. Thereafter they packed the pieces of the dead body in both the boris and after carrying these boris for about 100 yards on their back, they threw it in a khandhar. When they were going to throw the pieces of dead body, this witness and other appellants/accused also accompanied them. Soil was spread on the dead body to 7 cover it. The clothes and the shoes of the dead body and both the boris were thrown in the lake. Thereafter all the seven persons returned at the shop of Harish Singh. At that time, it was around 12 in the night. This witness has further stated that he narrated the entire incident to Gopal Singh on second or third day of that incident. He had also deposed before the Magistrate in Bageshwar in this regard and the I.O. had also recorded his statement. In his cross-examination, he has stated that he had not seen anyone killing Heera Singh nor could he say as to who had killed him. He was taken before the Magistrate by PW8 S.I. Harendra Singh Bist, the I.O. and whatever Harendra Singh Bist had told him to tell the Magistrate, he exactly stated the same before the Magistrate. His statement was recorded before the Magistrate after one month of the said incident. The deceased Heera Singh was the resident of the village which was situated at a distance of about 2-3 kilometers from his village. 13. PW2 Smt. Savitri Devi is the complainant and the wife of deceased Heera Singh. She has proved the contents of the applications Ex. Ka-2, Ka-3 and Ka-4, which were moved by her and also the anonymous letters Ex. 1 & 2. She has further stated that the socks which she had given to the Inspector was light blue in colour. Her husband had gone from the house wearing blue sweater, white shirt and light white pant. She had identified the piece of sweater in the court as material Ex. 1. She also identified the socks as material Ex. 2. In her cross-examination, she has stated that at the time of lodging the first report Ex. Ka-4, she had expressed her doubt only on Govind Nath, Patwari. Rajan Singh (PW1) did not belong to her village. Rajan Singh had met her after the receipt of aforesaid anonymous letters. She had received both the anonymous letters in the end of March, 1999. She had not seen the 8 appellants/accused killing her husband nor did she see the appellants/accused hiding the dead body of her husband. 14. PW3 Govind Singh S/o Ram Singh did not support the case of the prosecution and was declared hostile. 15. PW4 Rajendra Singh is the witness of inquest report Ex. Ka-6 and he has identified his signature on the same. 16. PW5 Shamsher Singh Mehra has stated that Savitri Devi (PW2) had told him that her husband Heera Singh was missing since 16.2.1999 and asked him to search her husband. He searched her husband but he could not be traced. Thereafter two anonymous letters were received, on the basis of which he tried to search in the Ghoragarh forest. It has come to his knowledge on 20.4.1999 that a skeleton was lying near Bhadrakali. Thereafter he went to Bhadrakali and saw a human skeleton lying there. Thereafter police was informed. Police had come on the spot and the skeleton was taken into possession by the police and inquest report was prepared. Savitri Devi (PW2) had handed over torn blue-white socks to the police in his presence. 17. PW6 Govind Singh S/o Babe Singh has stated that bones of kankal were recovered by the police in his presence. Thereafter police prepared the inquest report and he had also signed on it. 18. PW7 Prayag Singh has not supported the prosecution case and was declared hostile. 19. PW9 S.I. Harendra Singh Bist has stated that on 21.4.1999, he was posted at Kotwali police station, 9 Bageshwar. On that day, an application was moved by Smt. Savitri Devi (PW2) through the District Magistrate wherein it was stated that remains of the dead body of her husband were lying near the Bhadrakali temple. On this information, he along with police force reached at the spot and recovered a skull and some pieces of bones. A piece of blue sweater was also found there. Inquest report Ex. Ka- 6 was prepared by him on the spot. Recovered pieces of bones were sealed on the spot and was sent for the post mortem. Fard Ex. Ka-7 was also prepared on the spot. Thereafter a case under Sections 302/201 IPC was registered on 22.5.1999 vide rapat no. 15 at 11.30 am. Challan lash Ex. Ka-8, photo lash Ex. Ka-9 and a letter to the Medical Superintendent Ex. Ka-10 for conducting the post mortem were also prepared by him on the spot. He started the investigation into the case on 1.6.1999 on the orders of the Superintendent of Police. The case property was sent to the Forensic Laboratory, Agra for examination. A report Ex. Ka-11 was received from the laboratory. During the course of investigation, he recorded the statements of the witnesses and after completing the investigation filed the chargesheets Ex. Ka-12 and Ka-13 against the appellants/accused. In the cross-examination, he has stated that during the course of investigation, Savitri Devi (PW2) had expressed her doubt on Govind Nath, Patwari. She had not told anything against anybody else. 20. PW10 A.S.I. Laxmi Prasad has stated that on 14.4.1999, he was posted as Head Moharrir in Bageshwar police station. On that day, he had received an application through post (dak) and made the entry in the GD. Copy of the GD is Ex. Ka-14. He has also proved the copy of the GD Ex. Ka-15 and Ka-16 as well as site plan Ex. Ka-17. 10 21. Thereafter, statements of each of the appellants/accused were recorded under Section 313 CrPC. The oral and documentary evidence were put to them in question form, who denied the allegations made against them and stated that they have been falsely implicated in the case. However, in defence, they did not produce any documentary or oral evidence. 22. Learned Counsel for the appellants/accused argued that the conviction of the appellants/accused is based on the circumstantial evidence but the prosecution has failed to prove its case against the appellants/accused beyond reasonable doubt for the offence punishable under Section 201 IPC. I find substance in the argument of the learned Counsel for the appellants/accused due to the following reasons: (i) That the statement of PW1 Rajan Singh was recorded by the I.O. after about one month of the said incident. Even his statement under Section 164 CrPC was recorded after one month and the same does not bear any date and time and no Magistrate was produced to prove it. No explanation has been furnished by the prosecution in this regard. PW1 Rajan Singh has stated that he did not disclose to anybody the facts of the said incident for about one month but he did not furnish any explanation as to why he remained silent for about one month. (ii) That PW1 Rajan Singh was the resident of a village which was situated about 2-3 kms from the place of occurrence and his presence at 10 pm on the place of occurrence is doubtful. It has also come in his statement that he had seen the abovesaid incident in the torch light at 11 10 pm and also participated in the said crime, but for the reasons best known to the I.O., he was not made an accused in the said crime. These facts and circumstances create serious doubt on the prosecution story and due to the aforesaid reasons, his statement is not reliable and believable and the same does not inspire confidence. (iii) That the deceased was missing since 17.2.1999 but PW2 Smt. Savitri Devi had given this information to Patwari on 17.3.1999 i.e. after one month of the said incident. She was also the Pradhan of the village at the relevant time and she was aware that Patwaris were on strike during that period. In spite of this fact, she made the complaint to the Patwari after one month on 17.3.1999. Thereafter she moved the application before the District Magistrate on 9.4.1999 and on 20.4.1999. This delay in lodging the report has not been explained by the prosecution by showing the sufficient cause which also creates reasonable doubt on the prosecution story. (iv) That Smt. Savitri Devi in her statement as well as in her application dated 17.3.1999 (Ex. Ka-4) had expressed her doubt only on Govind Nath, ex-Patwari and had not stated anything against anybody else as has been disclosed by the I.O. Harendra Singh Bist (PW9). Due to this reason also the chain of circumstantial evidence against the appellants/accused for proving the offence of disappearing the evidence of the crime is not complete and proved. (v) That the report of the Forensic Laboratory Ex. Ka-11 only reveals that the bones were of the 12 human being but no definite opinion could be given about the sex, age or the time after the death. (vi) That PW3 Govind Singh S/o Ram Singh and PW7 Prayag Singh did not support the case of the prosecution and were declared hostile. PW4 Rajendra Singh, PW5 Shamsher Singh Mehra and PW6 Govind Singh S/o Babe Singh are only the witnesses of inquest report. Thus, these witnesses were not in any way helpful to the prosecution and have not proved anything which may complete the chain of evidence against the appellants/accused. 23. That the conviction of the appellants is based on the circumstantial evidence and it is the settled law that when there is no direct evidence to prove the case and the conviction is founded solely on circumstantial evidence, such evidence must satisfy the following tests as has been set out by the Hon’ble Apex Court in 1989 Supp (1) SCC 560, Ashok Kumar Chatterjee v. State of M.P. and the same are reproduced as under: “(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) 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 13 (4) 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.” 24. When the evidence adduced by the prosecution is tested in the light of the aforesaid principles propounded by the Hon’ble Apex Court, it failed to satisfy these tests as has been discussed supra. 25. Learned Counsel for the appellants/accused vehemently argued that the deceased Heera Singh was missing since 17.2.1999, but the report of this incident was lodged after one month on 17.3.1999 by his wife Smt. Savitri Devi (PW2), who was also the Pradhan of the village at that time and this delay in lodging the FIR could not be explained by the prosecution by showing the sufficient cause. I find force in the argument of the learned Counsel as Heera Singh was missing since 17.2.1999, but his missing report was not lodged for one month. Moreover, it has come in the deposition of PW1 Rajan Singh that the entire incident had taken place in his presence, but he also remained silent and neither disclosed these facts to anyone for about one month nor lodged the report of the said incident. This delay in lodging the FIR has not been explained properly by the prosecution by showing the sufficient cause. Therefore, this unexplained delay in lodging the FIR is also fatal to the case of prosecution. Learned Counsel for the appellants/accused placed his reliance upon the case of State of Karnataka v. Mapilla 14 P.P. Soopi reported in (2003) 8 SCC 202, wherein at para 4, the Apex Court has held as under: “Undue delay in lodging the complaint without acceptable evidence has also contributed to the doubt in the prosecution case. Hence, the High Court was justified in allowing the appeal.” 26. Thus, in view of my foregoing discussion and legal proposition, it can safely be inferred that the chain of circumstantial evidence to prove the guilt of the appellants is not complete and, therefore, it cannot be said that within all human probability the crime was committed by the appellants/accused and none else committed the said crime. As such, the prosecution has miserably failed to prove its case that the appellants/accused knowing that an offence has been committed, caused the evidence of the commission of that offence to disappear with the intention of screening the offender from legal punishment. Therefore, prosecution has failed to prove its case beyond reasonable doubt for the offence punishable under Section 201 IPC and the appellants/accused are entitled to get the benefit of doubt. As such, the learned trial court erred in holding the appellants/accused guilty and convicting them under Section 201 IPC and, therefore, the impugned judgment and order of the trial court, in view of the above narrated legal proposition, evidence and facts & circumstances of the case, is not justified and is liable to be set aside. 27. Resultantly, for the reasons recorded above, the appeal is allowed. Appellants Harish Singh S/o Nain Singh, Sujan Singh, Dalip Singh, Keshar Singh, Harish Singh S/o Aan Singh and Ramesh Singh are acquitted of the charge leavelled against them. The judgment and order dated 5.12.2002 passed by the Sessions Judge, 15 Bageshwar in Sessions Trial No. 47 of 2000, State v. Harish Singh S/o Nain Singh & Ors., convicting all the appellants under Section 201 IPC is hereby quashed. Consequently, sentence of rigorous imprisonment for a period of three years and fine of Rs. 1000/- imposed