Judgment Reserved IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 1822 of 2001 Digar Singh. …..…Appellant. Versus State of Uttaranchal. …...…Opposite Party. Present : Mr. Lokendra Dobhal learned counsel for the appellant. Mr. Amit Bhatt, AGA, for the State. WITH Criminal Appeal No. 1840 of 2001 Mohan Singh and another. …..…Appellants. Versus State of Uttaranchal. …...…Opposite Party. Present : Mr. Lokendra Dobhal learned counsel for the appellant. Mr. Amit Bhatt, AGA, for the State. WITH Criminal Jail Appeal No. 68 of 2008 Pooran Singh. …..…Appellant. Versus State of Uttarakhand. …...…Opposite Party. Present : Mr. Chandramauli Shah, learned Amicus Curiae for the appellant. Mr. Amit Bhatt, AGA, for the State. Coram Hon’ble Nirmal Yadav, J. Hon’ble Sudhanshu Dhulia, J. (Per Nirmal Yadav, J) The above three appeals are filed against the judgment and order dated 09.10.2001 passed by 2 Additional Sessions Judge, Pithoragarh in Sessions Trial No. 27 of 2000 vide which accused appellants have been convicted under section 302 IPC read with section 149 IPC and sentenced to undergo life imprisonment each; they have been further convicted under section 147 IPC and sentenced to undergo two year simple imprisonment each; they have been further convicted under section 452 IPC and sentenced to undergo seven year imprisonment each; they have also been convicted under section 120-B IPC and sentenced to undergo life imprisonment each. However, they have been acquitted of the charge punishable under section 380 IPC. The criminal law was set in motion on the application moved by Jagat Singh, Pradhan of village Rawalgaon. According to him, he received information on 11.04.2000 in the evening that Maya Devi, wife of Sunder Singh was not seen for the last three days and her house was locked from outside. On this, he went to the house of Maya Devi and found foul smell coming out from her house and therefore, he requested Patwari of the area to investigate the matter. Vide his report (exhibit Ka-1) and first information report (exhibit Ka-4) was registered on 12.04.2000 at 09.00 a.m. Patwari went to the spot and found the house of Maya Devi locked from outside. After breaking the lock, he entered the house and found the naked dead body of Maya Devi lying on the cot. Even all the ornaments on her body were found missing. A string 3 was tied on her neck. Her son Babloo was also found lying dead in the house. Dead bodies of Babloo and Maya Devi were sent for postmortem examination, the postmortem examination reports of Babloo and Maya Devi are exhibit Ka-2 and Ka-3 respectively. Inquest reports Maya Devi and Babloo are exhibit Ka-6 and Ka- 7. Sketch of dead bodies of Maya Devi and Babloo are exhibit Ka-8 and exhibit Ka-16. Memo of recovery of blood stained earth and simple earth is exhibit Ka-17. Memo of recovery of blood stained clothes and articles were taken into possession from the house of Maya Devi vide recovery memo Exhibit Ka-18 and Ka-19 which were sent for examination to forensic science lab, the report is exhibit Ka-23. Memo of recovery of bloodstained clothes worn by accused Dhirendra and Jeevan Singh (exhibit Ka-20 and Ka-21). Site plan is exhibit Ka-15. On the completion of the investigation, chargesheet was submitted before Chief Judicial Magistrate, Pithoragarh, who committed the case before District and Sessions Judge, Pithoragarh. On the basis of evidence, accused were chargesheeted by District Judge, Pithoragarh under section 120-B, 452, 147, 302 read with section 149, 380 IPC to which they pleaded not guilty and claimed to be tried. In order to prove it’s case, prosecution produced PW1 Jagat Singh, the complainant; PW2 Sarswati Devi wife of Sabal Singh uncle of Sunder Singh (husband of Maya Devi); PW3 Dr. Chandra Mohan Dhami, Medical 4 Officer, District Hospital, who conducted postmortem examination on the dead bodies of Maya Devi and Babloo vide postmortem reports exhibit Ka-2 and Ka-3. PW-4 Kalyan Singh, brother of accused Pooran Singh accused, had last seen all the accused appellants along with Dhirendra Singh (since deceased) coming out of the house of deceased Maya Devi during the night 09.04.2000; PW5 Santoshi Devi, wife of Dhirendra Singh; PW6 Parwati Devi, wife of Sher Singh and mother of Dhirendra Singh; PW7 Kirti Ballabh, Patwari, who initially conducted the investigation; and PW8 Devendra Singh Negi, Inspector Kotwali Pithoragarh, who took over the investigation with effect from 04.05.2000. Accused when examined under section 313 Cr.P.C. denied the charges and incriminating evidence produced by the prosecution against them. According to them, they have been falsely implicated. According to Digar Singh, on 09.04.2011, he was not present in the village. He had gone to the house of his niece Shanti Devi. He stayed there for the night and came back to the village on the next date. Mohan Singh accused stated that he has nothing to do with the matter. He had gone to the house of Dhirendra Singh to make payment for two bottles of liquor, which he had purchased but Dhirendra Singh refused to take the money on the ground that Mohan Singh was a poor person, however, he was offered to have bhitola feast at his house. He also stated that he has been falsely 5 implicated. Pooran Singh accused stated that he had only informed the villagers that Maya Devi was not seen in the house and asked them to search for her. In defence, Digar Singh produced Shanti Devi (DW1), who stated Digar Singh had visited her house on 09.04.2000 and stayed there during that night and went back on the next date. Heard learned counsel for the appellants and learned AGA for the State and perused the record. Learned counsel for the appellants argued that there is no direct ocular evidence in the present case. The entire case rests on circumstantial evidence. Learned counsel for the appellants argued that the testimony of the star witness of prosecution PW4 Kalyan Singh is not trustworthy. According to him, he had witnessed the accused coming out of the house of Maya Devi. He is alleged to have heard the shrieks of Maya Devi during the night. She was shouting that injuries were being caused to her by Panku’s father Dhirendra and thereafter, he had seen accused Dhirendra Singh and three other persons namely Pooran Singh, Jeevan Singh, Digar Singh leaving the house of Maya Devi at about 11.30 – 12.00 in the night. It is however argued that PW4 Kalyan remained quiet for almost three days and only on 12.04.2000 he disclosed all the facts before Patwari after he had confessed that he had committed the murder of Dhirendra Singh. 6 Learned counsel for the appellants argued that according to PW4 Kalyan Singh, Maya Devi was wife of his brother and if he had seen accused appellants committing the murder of his brother’s wife, it is unbelievable that he would keep mum for three days and would not disclosed this fact to any one in the village or to the police. The conduct of PW4 Kalyan Singh is totally unreliable and untrustworthy and cannot be relied upon to base conviction of the accused appellants. It is further argued that there is no other evidence to corroborate the testimony of PW4 Kalyan Singh. It is argued that when a case rests upon circumstantial evidence, inference of guilt can only be justified when all the incriminating evidence and circumstances are found to be incompatible with the innocence of the accused or guilt of another person. Learned counsel for the appellants placed reliance on the judgment of Apex Court reported in 2010 (1) Supreme 551 (Satni Bai Vs. State of Madhya Pradesh) and 2010 (3) Supreme 783 (Niranjan Panja Vs. State of West Bengal). On the other hand, learned AGA submitted that PW4 Kalyan Singh categorically stated that on 09.04.2000 in the night at about 11.30 – 12.00, he heard shrieks of Maya Devi stating that she was being given injuries by Dhirendra Singh (since deceased) and thereafter, he had seen accused Dhirendra Singh, Jeevan Singh, Pooran Singh, Digar Singh emerging out of house of Maya Devi. According to him, he (Kalyan 7 Singh) was under fear of Dhirendra Singh, who was a dangerous person, as he had already committed four murders. Learned AGA pointed out that PW4 Kalyan Singh named his own brother Pooran Singh as one of the culprits. Though Pooran Singh in his statement made under section 313 Cr.P.C. stated that he has been falsely implicated by his brother, however, nothing has come on record that PW4 Kalyan Singh was inimically disposed of towards his brother Pooran Singh. It is further argued that even PW5 Smt. Santoshi Devi, wife of Dhirendra Singh, in her examination in chief stated that all the accused namely Jeevan Singh, Digar Singh, Pooran Singh had been invited by her husband for having bhitola feast at their house. Mohan Singh had also come to their house but he left after having his meals but other accused remained seated with her husband in the house. After some time, her husband and other accused went out of the house. She also stated that during that night she and her husband did not sleep together in the same room. She did not meet her husband during the night. She gave him tea on the next morning at 07.30 a.m. She further stated that on 12.04.2000 her husband went to the house of PW4 Kalyan Singh to finish him and his family. However, PW4 Kalyan Singh gave injuries to him and Dhirendra Singh succumbed to injuries in the military hospital. Learned AGA, therefore, argued that statement of witness PW4 Kalyan Singh find support from the statement of PW5 Santoshi Devi to the extent that accused Dhirendra Singh, Jeevan Singh, Pooran Singh 8 and Digar Singh were together before the incident. He further pointed out that their statements are also supported by postmortem examination report. According to PW4 Kalyan Singh, Dhirendra Singh was armed with knife while Jeevan Singh was armed with khukhari. As per the opinion of PW3 Dr. Chandra Mohan Dhami, injury nos. 1 and 2 on the person of Maya Devi could be caused by sharp edged weapon and other injury could be caused by some blunt weapon and injuries might have been caused 3-4 days prior to the postmortem examination. It was also pointed that blood stained clothes of accused Dhirendra and Jeevan Singh were recovered from their respective houses. There appears to be no reason on record for false implication of the accused. Accused and witnesses PW2 Saraswati, PW4 Kalyan Singh, PW5 Santoshi Devi, PW6 Parwati Devi are interrelated. PW5 Santoshi Devi and PW6 Parwati Devi are the wife and mother of Dhirendra Singh. PW2 Saraswati Devi, is wife of Sabal Singh, uncle of Sunder Singh, husband of Maya Devi. PW4 Kalyan Singh is brother of Pooran Singh. Accused Digar Singh is also cousin brother of Sabal Singh, husband of Saraswati Devi. There is nothing on record to show that accused or the witnesses had any enmity or animosity against each other. The only ground emphasized by the counsel for the appellants is about the conduct of PW4 Kalyan Singh, who remained quiet for almost three days after 9 the occurrence. Even he did not disclose about the occurrence to the elders in the village or to the police. He only disclosed about the occurrence and names of the accused when he surrendered before Patwari after committing the murder of Dhirendra Singh. It is submitted that his conduct creates serious doubts in the prosecution case. Learned counsel for the appellants therefore, argued that the circumstances from which inference as to the guilt of accused is to be drawn, is not proved beyond reasonable doubt. It is true that when a case is based on circumstantial evidence from which the conclusion of guilt is to be drawn should be fully proved. Such circumstances must be conclusive in nature and there should be no gap left in the chain of evidence and the proved circumstances must be consistent only with the hypothesis of guilt of the accused and totally inconsistent with his innocence. In the case of Padala Veera Reddy Vs. State of Andhra Pradesh (AIR 1990 SC 79), the Hon’ble Supreme Court has laid down certain tests, which must be satisfied for proving the case, which rests on circumstantial evidence. The tests read as under: “i. The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; 10 ii. those circumstances should be of a definite tendency unerringly pointing towards the 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 be only be consistent with the guilt of the accused but should be in consistent with this innocence.” There is no doubt that conviction can be based on circumstantial evidence but it should be tested on the touchstone of legal principles laid down by the Apex Court in various judgments. We have scrutinized the entire evidence on record of this case in view of the settled legal principles of law. Present case is not a case of direct evidence with regard to murder to Maya Devi, who is wife of younger brother of PW4 Kalyan Singh. Prosecution has brought two-categories of circumstances on record. One, that accused appellants were seen at the place of occurrence by PW4 Kalyan Singh during the night of 09.04.2000. Secondly, the bloodstained clothes were recovered from the house of accused and the above 11 circumstances are fully supported by medical evidence on record. To prove the above circumstances, the prosecution examined PW4 Kalyan Singh, PW5 Santoshi Devi, who is none other than wife of Dhirendra Singh accused (since deceased). PW2 Saraswati Devi is Aunt of PW4 Kalyan Singh. According to PW2 Saraswati Devi on 09.04.2000 there was bhitola ceremony in the house of Maya Devi. Bhitola is the custom, and in the month of Chaitra a brother brings gifts and food articles for his sister and those food articles are distributed amongst the co- villagers or they are invited to have feast in the house on that day. On that day, Bhitola was prepared in the house of Maya Devi as well as in Dhirendra Singh’s house. Accused Mohan Singh, Jeevan Singh, Digar Singh, Pooran Singh had visited the house of Dhirendra Singh and had taken Bhitola feast in the evening of 09.04.2000. PW5 Santoshi Devi has admitted that Mohan Singh had immediately left the house after having his meals but other accused namely Digar Singh, Jeevan Singh, Pooran Singh remained seated with her husband. After some time, her husband Dhirendra Singh along with Digar Singh, Jeevan Singh, Pooran Singh left the house and she did not see her husband during the night. Her statement is fully corroborated with the statement of PW4 Kalyan Singh, who stated that he had seen accused Dhirendra Singh, Pooran Singh, Jeevan Singh and Digar Singh emerging 12 out of the house of Maya Devi during the night at about 11.30 – 12.00 on 09.04.2000. Though in the cross examination PW5 Santoshi Devi appears to have been tutored. She improved her statement given in the examination in chief. She stated that her husband remained at the house. While Mohan Singh and Digar Singh first left her house and 2-3 minutes thereafter, Jeevan Singh and Pooran Singh also left her house. However, her statement in examination in chief appears to be trustworthy and her statement in the cross examination cannot be relied as the same was recorded after almost two months her examination in chief having been recorded. Accordingly, the statement of PW4 Kalyan Singh gets full corroboration by statement of PW5 Santoshi Devi. From the evidence on record, prosecution fails to prove its case against Mohan Singh beyond reasonable doubt. PW4 Kalyan Singh did not mention the name Mohan Singh leaving the house of Maya Devi with accused appellants. He had only mentioned the names of Dhirendra Singh, Jeevan Singh, Digar Singh and Pooran Singh. Pooran Singh is of course his younger brother. Even PW5 Santoshi Devi has stated that Mohan Singh had already left their house after having Bhitola feast while other accused namely Pooran Singh, Digar Singh, Jeevan Singh and her husband left their house later. Thus, by giving benefit of doubt to Mohan Singh, he deserves to be acquitted of the charges leveled against him. However, the prosecution has 13 successfully proved the charges leveled against other accused namely Dhirendra Singh, Digar Singh, Pooran Singh, Jeevan Singh. Accordingly, for the reasons stated supra, we have no hesitation in agreeing with the findings recorded by the trial court. Appeal qua accused Mohan Singh is allowed, judgment and order under challenge is set aside qua Mohan Singh. He is on bail. His bail bonds are cancelled and his sureties are discharged. However, appeals of accused Digar Singh, Pooran Singh and Jeevan Singh are dismissed. Judgment and order dated 09.10.2001 passed against accused appellants Digar Singh, Pooran Singh and Jeevan Singh is hereby affirmed. Accused Digar Singh is on bail. He shall be taken into custody to serve out the sentence as awarded by the court below. Accused Jeevan Singh and Pooran are already in jail. The court below is directed to ensure the compliance of the order. Let the lower court record be sent back. (Sudhanshu Dhulia, J) (Nirmal Yadav, J.) 22.02.2011 SKS