IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL (Chapter VIII, Rule 32(2)(b) Description of Case Criminal Appeal No. 150 of 2007 (Old No. 1025 of 1983) Date of decision : 4th September, 2007 A.F.R. (Approved for Reporting) Not approved for reporting Date: 04.09.2007 Initials of Judge Note: Bench Reader will attach this at the top of the first page of the judgment when it is put up before the judge for signature HIGH COURT OF UTTARAKHAND, AT NAINITAL Criminal Appeal No. 150 of 2007 (Old No. 1025 of 1983) Madan Ram S/o Sri Vijay Ram R/o Village Kholiya Police Station Dharchula District Pithoragarh ………Appellant Versus State …..Respondent Mr. Lokendra Dobhal, advocate for the appellant. Mr. Amit Bhatt, learned A.G.A. for the respondent-State. Coram: Hon’ble Rajeev Gupta, C.J. Hon’ble J. C. S. Rawat, J. Per Hon’ble J.C.S. Rawat, J. This appeal has been directed against the judgment and order dated 24.03.1983, passed by Sri T.N. Saxena, the then Sessions Judge, Pithoragarh in Session Trial No. 1 of 1982, whereby the appellant has been convicted u/s 302 r/w 34 Indian Panel Code, 1860 (hereinafter as I.P.C.) and sentenced to undergo imprisonment for life. 2. The facts, in nutshell, are that informant Mohan Singh PW3 lodged an F.I.R. Ex.Ka.1 on 22.05.1981 alleging therein that on 21.05.1981 at about 8:30 p.m. accused Madan Ram and his associate Kalyan Ram came to the house of deceased Puran Singh, Pradhan. The accused called Puran Singh from outside the house and asked him to accompany them. The complainant Mohan Singh PW3 and his sister-in-law (bhabhi) were present in the house at that time. Thereafter, the deceased Puran Singh accompanied the accused persons and proceeded towards the Bazar side. On the next day, i.e. on 22.05.1981 Umed Singh, Peon of the Patwari Siroli told the complainant Mohan Singh PW3 that dead body of his brother Puran Singh was lying in the gorge by the side of the road in village Satgarh. The complainant Mohan Singh PW3 reached at the spot and found his brother Puran Singh lying dead. On the basis of the F.I.R. Ex.Ka.1 chik report Ex.Ka.2 was prepared. Thereafter the revenue police transferred the matter to the regular police as the case fell within the jurisdiction of regular police. The investigation was taken up by Sri Nagendra Singh. The I.O. prepared the inquest report Ex.Ka.3, recovery memos of blood stained clothes and soil Ex.Ka.4 & Ex.Ka.5, site plan Ex.ka.8 and sent the dead body for post mortem examination vide letter Ex.ka.10 to the Medical Officer, Pithoragarh. He also recorded the statements of the witnesses u/s 161 Cr.P.C. Thereafter the investigation was entrusted to Laxman Singh Bisht PW9 on 25.07.1981. After completing the investigation, he submitted the chargesheet Ex.Ka.13 against the appellant before the court. It was further mentioned in the chargesheet that the other co-accused Kalyan Ram was not traceable. As such, he was shown as absconder in the chargesheet. 3. After submission of chargesheet, the accused/appellant was committed to the court of Sessions for trial and the trial court framed charges u/s 302/201 I.P.C. against the accused- appellant. The appellant-accused denied the charges levelled against him and claimed his trial. 4. The prosecution in support of its case examined as many as ten witnesses. Ram Singh PW1 is the witness who has a tailoring shop at Kanalichhina. Both the accused persons came to him shop and both of them consumed liquor and told Ram Singh PW1 that they have some work with the deceased Puran Singh. In the meantime, Puran Singh also came there and after taking liquor all of them left his shop towards bazar side. Bhawan Singh PW2 is also witness whose house is situated at a distance of 100 meters from the house of the deceased puran Singh. The accused persons and the deceased Puran Singh came to his shop and consumed liquor in the night at about 9:00 p.m. on the date of the occurrence. Mohan Singh PW3 is the informant of the case. He is the real brother of the deceased Puran Singh. He has stated that the deceased, his wife and he were in the house of the deceased Puran Singh. At about 8:30 p.m. the accused/appellant and co-accused Kalyan Ram came to their house and took the deceased Puran Singh with them in the night of the occurrence. Chandra Shekhar PW4 is the Supervisor Kanoongo. Shanti Devi PW5, Tej Bahadur PW6 and Damroo Devi PW7 are the witnesses who have seen the accused Madan Ram and Kalyan Ram having quarrel with the deceased Puran Singh after consuming liquor at about 11:00 p.m. on the same night of occurrence. Radhapati PW8 is the Pradhan of Gram Sabha Satgarh. Laxman Singh PW9 is the investigating officer who has investigated the case and submitted the chargesheet Ex.Ka.13. Dr. H.K. Fuloria PW10 is the Medical Officer who conducted the post-mortem on the dead body of the deceased. It is also in the evidence that S.O. Nagendra Singh who investigated the case at the initial stage had died. 5. The accused-appellant was examined u/s 313 Cr.P.C. and he has pleaded not guilty to the offence. He has stated that he has been falsely implicated in this case. 6. The learned Sessions Judge on appreciation of the evidence held the accused-appellant guilty and convicted and sentenced him as mentioned above. The co-accused Kalyan Ram could not be tried, as he was not traceable. 7. We have heard learned counsel for the parties and perused the record. 8. At the outset, it needs to be mentioned here that it is not disputed that the deceased Puran Singh died on account of injuries sustained by him on the date of occurrence. Dr. H.K. Fuloria PW10, Medical Officer conducted the postmortem of deceased Puran Singh on 23.05.1981 at 9:00 a.m. and found the following ante mortem injuries on the person of the deceased:- 1. Lacerated wound on the left side of scalp measuring 3.5 cm. x 3.5 cm. x bone deep circular in shape. 9 cm. front left ear. Skin in above area is absent and bones are open. 2. Lacerated wound on the left side of scalp left and .5 cm. from injury no. 1 measuring 3cm. x .5cm x bone deep. Semi circular in shape. 3. Contusion on right side of scalp, measuring 17 cm. x 9 cm. extending from 4 cm. above right eyebrow to injury no.1. 4. Contusion on right side of forehead measuring 5cm. x 3 cm. 5. Multiple small contusions on right side of face in an area of 10 cm. covered with block eye on right side. 5. Contusion on the left side of neck measuring 5 cm. x 3 cm. 6. Contusion on the right side of neck measuring 7 cm. x 4 cm. 7. Contusion in the front of neck just above skin measuring 8 cm. x 4 cm. 8. Contusion just above right knee measuring 7.5 cm. x 5 cm. 9. Contusion just above left knee measuring 8 cm. x 6 cm. 10. Contusion on the left leg measuring 12 cm. x 7 cm. 11. Contusion in the sacral region measuring 13 cm. x 12 cm. with lacerated wound in the contusion measuring 3.5 cm. x 3.5 cm. x .5 cm. circular in shape, skin in the area of laceration is absent. In the opinion of Medical Officer, the death of the deceased was caused due to shock and haemorrhage as a result of ante mortem injuries. The Medical Officer further stated that the duration of death was from one to two days. This, it is amply proved that the deceased died on account of the injuries sustained by him on the date of occurrence. 9. Now, we have to consider as to who is responsible for causing the death of the deceased Puran Singh. There was no eyewitness of the incident and the prosecution case rests upon circumstantial evidence. The law which is fairly settled about circumstantial evidence is that it should be such as to point out only to the guilt of the accused. The evidence should exclude all other hypothesis except the guilt of the accused. It is often said that though witnesses may lie, circumstances will not but at the same time it must cautiously be scrutinized to see that the incriminating circumstances are such as to lead only to a hypothesis of guilt and reasonably exclude every possibility of innocence of the accused. In order to sustain conviction on circumstantial evidence, each of the incriminating piece of circumstantial evidence should be proved by cogent and reliable evidence and the court should be satisfied that the piece of evidence taken together. forge such a chain wherefrom no inference other than the guilt can be drawn 10. The Hon’ble Apex Court is Sharad Birdhichand Sarda Vs. State of Maharashtra (AIR 1984 SC 1622) while dealing with circumstantial evidence, has held that onus is always on the prosecution to prove that the chain is complete. The condition precedent before conviction could be based on circumstantial evidence were enumerated as under :- (i) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established; (ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (iii) the circumstances should be of a conclusive nature and tendency; (iv) They should exclude every possible hypothesis except the one to be proved; and (v) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. The above decision was also followed in the decisions of the Hon’ble Apex Court in State of Rajasthan Vs. Rajaram 2003 Cri.L.J.p/3901, State of U.P. Vs. Satish 2005 SCC (Cri) 642 and Ram Singh Vs. Sonia & others 2007 (3) SCC 1. 11. Keeping in view the above principle of law, we will consider the circumstances projected by the prosecution against the appellant. 12. This case rests on circumstantial evidence. The first circumstance that has been projected by the prosecution is that the accused/appellant Madan Ram alongwith co-accused Kalyan Ram came to the tailoring shop of Ram Singh PW1 at Kanalichhina. They took the liquor at his shop and they were telling that they had some work with the deceased Puran Singh, Gram Pradhan of Village Siroli. It is also in the evidence that the deceased Puran Singh suddenly appeared there and they took liquor together. Thereafter the deceased Puran Singh, the accused/appellant Madan Ram and co- accused kalyan Singh went from his shop towards the bazaar. The prosecution has adduced the evidence of Ram Singh PW1 to prove the aforesaid circumstance. He has stated in his deposition that on 21.05.1981 at about 4:00 p.m., the accused/appellant and the co-accused Kalyan Ram came to his tailoring shop at Kanalichhina. He knew both the accused since long as they used to come to his shop before the incident regularly. He has further stated in his evidence that both the accused/appellant and co-accused Kalyan Ram consumed liquor in his shop. Meanwhile, the deceased Puran Singh also joined them in his shop and all the three took liquor in his shop in the evening on 21.05.1981 at about 4:30 p.m. Thereafter, they left the shop of Ram Singh PW1 and they went towards the market. The prosecution has also led the evidence that on the next day, the deceased Puran Singh was found dead. It is apparent from the evidence of the prosecution that the accused/appellant and co-accused Kalyan Ram were in the company of the deceased Puran Singh. But it is the prosecution case that thereafter he went to his house from where the accused/appellant and the co- accused Kalyan Ram took him towards the bazaar in the night at about 8:30 p.m. on 21.05.1981. It is well settled position of law that last seen theory comes into play where the time gap between the point of time when the accused/appellant and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused/appellant being the author of the crime becomes impossible. The evidence of Ram Singh PW1 regarding last seen does not lead to take an inference that immediately after the departure from his shop, the murder of the deceased Puran Singh was committed. It is the prosecution case that the deceased Puran Singh went to his house and again the accused/appellant called him. Thus, this evidence is not helpful to the prosecution and it cannot be taken into account as last seen evidence in this case. 13. The next circumstance that has been projected by the prosecution is that the accused/appellant Madan Ram alongwith co-accused Kalyan Ram came to the house of the deceased Puran Singh on 21.05.1981 at about 8:30 p.m. and they took the deceased Puran Singh alongwith them towards the bazaar side. Thereafter, the deceased Puran Singh did not come back to his house. In the morning on 22.05.1981 Umed Singh, Peon of the Patwari Siroli informed Mohan Singh PW3 at his residence that the dead body of the deceased Puran Singh was lying in the ‘Khud’ by the side of the road in village Satgarh. The prosecution has adduced the evidence of Mohan Singh PW3, real brother of the deceased Puran Singh to prove the aforesaid circumstance. He has stated in his evidence that the accused/appellant and co-accused Kalyan Ram called the deceased Puran Singh from his house and they took the deceased towards the bazar. Thereafter, the deceased did not return to the house. Mohan Singh PW3 had further deposed that on the next day, Umed Singh, Peon of the Patwari Siroli informed him that the dead body of the deceased Puran Singh was lying on the ‘khud’ by the side of the road in village Satgarh. Thereafter, he reported the matter to the revenue police and the revenue police found that the place of occurrence fell within the jurisdiction of regular police. Hence, they referred the matter to the regular police. This witness was cross examined at length but his testimony remained unshaken and consistent. The defence could not elicit anything in his evidence to discredit his testimony. Thus the evidence of Mohan Singh PW3 is credible and cogent. 14. The next circumstance that has been projected by the prosecution against the accused/appellant Madan Ram alongwith co-accused Kalyan Ram is that there was a tea stall of Bhawan Singh PW2 in the village Kanalichhina. The accused/appellant, co-accused kalyan Ram and the deceased Puran Singh came to the tea stall of Bhawan Singh PW2 at about 9:00 p.m. in the night and they consumed liquor in his stall. Thereafter, they were talking about each other that they would like to take the deceased Puran Singh in village Pukhtar where the relative of co-accused Kalyan Ram resided. Thereafter, they left his shop. The prosecution has adduced the evidence of Bhawan Singh PW2 to prove the aforesaid circumstance. He has stated in his evidence that he had a tea stall in village Kanalichhina. The accused/appellant and co-accused Kalyan Ram came to his house and they took the liquor there. They came on his shop at about 9:00 p.m. in the night and they remained consuming liquor for about 45 minutes and thereafter they left the shop by saying that they are going to Pukhtar village where the relatives of the co- accused Kalyan Ram resides. Thereafter, they left his shop. This witness has categorically stated in his cross examination that he did not know the accused/appellant Madan Ram and the co-accused Kalyan Ram before the date of incident. The police arrested the accused/appellant after six months of the incident. The police personnel also said to him that he was telling that he alongwith his associate Kalyan Ram and deceased Pooran Singh had taken the liquor in the night of the occurrence. After the incident, the police came in his village and beat some shopkeepers to give their statements. When the accused/appellant Madan Ram and the co-accused Kalyan Ram had been arrested, then he came to know the names of the accused/appellant Madan Ram and the co- accused Kalyan Ram who consumed the liquor on the night of occurrence. The accused/appellant Madan Ram and the co- accused Kalyan Ram were not put to identification parade during investigation and thus this witness has not recognized them in identification parade. The trial court has rightly discarded the evidence of Bhawan Singh PW2 while convicting the accused/appellant. 15. The next circumstance that has been projected by the prosecution is the evidence of Shanti Devi PW5, Tej Bahadur PW6 and Damroo Devi PW7 that on 21.05.1981 at about 11:00 or 11.30 p.m., the accused/appellant, co-accused Kalyan Ram and the deceased Puran Singh came to the house of Shanti Devi PW5, mauseri sister of the accused/appellant Madan Ram and co-accused Kalyan Ram. They stayed for a while in the house of Shanti Devi PW5 and they consumed liquor there. Thereafter, a quarrel took place in between co-accused Kalyan Ram and the deceased Puran Singh over the loan amount which was taken by co-accused Kalyan Ram from the deceased Puran Singh. Thereafter, the accused/appellant and the co-accused kalyan Ram became furious and the co-accused Kalyan Ram threw down the deceased Puran Singh and took him outside the house of Smt. Shanti Devi PW5. Thereafter, the accused/appellant and the co-accused Kalyan Ram took the deceased Puran Singh towards the workshop of Panna Ram by beating him. In the morning, the dead body of the deceased Puran Singh was recovered. The prosecution has adduced the evidence of Shanti Devi PW5, mauseri sister of the accused/appellant and the co-accused Kalyan Ram to prove the aforesaid circumstance. She has stated that the accused/appellant, co- accused Kalyan Ram and the deceased Puran Singh came to her house and took liquor there. Shanti Devi PW5 has state in her deposition that the accused/appellant, co-accused Kalyan Ram and the deceased Puran Singh came to her house at about 11:00 or 11:30 p.m. in the night and they consumed liquor in her house. The deceased Puran Singh was telling them that he had given loan of Rs. 800/- to co- accused Kalyan Ram whereas the co-accused Kalyan Ram was only admitting that he had taken an amount of Rs. 500/- only from him. The co-accused Kalyan Ram was ready to pay Rs. 500/- to the deceased Puran Singh. Thereafter, a quarrel took place in between the deceased Puran Singh and the accused and they became furious with each other. The accused-appellant Madan Ram and the co-accused Kalyan Ram took the deceased Puran Singh out from the house of Shanti Devi PW5 and threw down on the ground. Thereafter, the accused/appellant and the co-accused took the deceased towards the workshop by beating him. Thereafter, they took the deceased towards the Satgarh. Shanti Devi PW5 came to know next day at about 10:30 a.m. that the deceased Puran Singh has been murdered. Thus this fact is amply proved by the evidence of Shanti Devi that the accused/appellant and the co-accused Kalyan Ram by beating the deceased Puran Singh took him towards Satgarh side. The trial court found the evidence of Shanti Devi PW5 to be implicitly truthful and reliable. Though her presence was tried to be shown as doubtful. We do not find any reason to accept the plea. The defence has cross examined the witness at length and also tried to show that she is not the mauseri sister of the accused/appellant and the co-accused Kalyan Ram. She has explained in her evidence as to how she was the mauseri sister of the accused/appellant and the co-accused Kalyan Ram. We are of the opinion that she is related to the accused/appellant and the co-accused Kalyan Ram and her testimony being a close relation of the accused/appellant and the co-accused Kalyan Ram cannot be disbelieved. The prosecution has also adduced the evidence of Tej Bahadur PW6 and Damroo Devi PW7 to corroborate the testimony of Shanti Devi. The houses of the accused/appellant and the co-accused Kalyan Ram were nearby the house of Shanti Devi PW5. The Investigating Officer has stated in his cross examination at para 12 that the statement of Tej Bhadur PW6 was recorded on 30.11.1981. It is evident that his statement was recorded after six months. Whereas the statements of the other witnesses were recorded within three days of the incident. It is also pertinent to mention here that Mohan Singh PW3 has stated in his evidence that Tej Bahadur PW6 and Tek Bahadur were apprehended by the police in connection with this incident. If they were interrogated by the police, there was no question to record the statement of these witnesses after a lapse of six months. Damroo Devi PW7 has categorically stated that she saw the incident outside the house of Shanti Devi PW5 where a quarrel took place. But she did not know the accused/appellant Madan Ram since before and she could not recognize whether he was participating in the incident or not. The trial court has rightly not taken into consideration the evidence of Tej Bahadur PW6 and Damroo Devi PW7. We are completely in agreement with the findings recorded by the trial court. But the fact remained that the evidence of Mohan Singh PW3 and Shanti Devi PW5 is credible and cogent. The evidence concludes that the deceased was called by the accused/appellant and the co-accused Kalyan Ram at about 8:30 p.m. from his house on 21.05.1981. Thereafter, they consumed the liquor in the house of Shanti Devi PW5 in the night at about 11:30 p.m. and thereafter a quarrel took place in between them and the accused/appellant and the co- accused Kalyan Ram had beaten the deceased in front of the house of Shanti Devi PW5. Thereafter, the deceased was taken towards Satgarh by the accused/appellant and co- accused Kalyan Ram by beating him where his dead body was found in the next morning. 16. The next circumstances projected by the prosecution is that there was motive to commit the offence. The prosecution has led the evidence of Smt. Shanti Devi PW5 that the accused/appellant, co-accused Kalyan Ram and the deceased Puran Singh came to her house at about 11:00 or 11:30 p.m. in the night and they consumed liquor in her house. During the course of consuming liquor, the deceased Puran Singh told the co-accused Kalyan Ram that he had given a loan of Rs. 800/- to him. Thereupon, the co-accused Kalyan Ram objected it and stated that he had only taken a loan of Rs. 500/- The co-accused Kalyan Ram was ready to pay Rs. 500/- to the deceased Puran Singh. During the conversation, quarrel took place in between the deceased Puran Singh and the accused and they became angry with the deceased Puran Singh. The accused/appellant and co- accused took the deceased out from the house of Shanti Devi and threw down on the ground. Thereafter, the accused/appellant and co-accused Kalyan Ram took the deceased towards Satgarh by beating him and thereafter the deceased Puran Singh was found dead in the morning in the gorge in village Satgarh. The prosecution has thus proved the motive for committing the murder of the deceased. It was further contended on behalf of the learned counsel for the appellant that this was a petty motive and no sensible person could have caused the death of the deceased on that pretext. In the case of Baboolal Vs. State of U.P. 2001 SCC (Cri)1484, the deceased was sitting inside the teashop of one Abdul Nabi. On the opposite side of road, there was a sweetmeat shop and all the accused were sitting inside it. As