Uttarakhand High Court
CRLA/343/2012 on 13 December, 2022
Author: Alok Kumar Verma
Bench: Sanjaya Kumar Mishra, Alok Kumar Verma
IN THE HIGH COURT OF UTTARAKHAND AT
NAINITAL
THE HON'BLE SRI SANJAYA KUMAR MISHRA
AND
THE HON'BLE SRI ALOK KUMAR VERMA
8th and 13th DECEMBER, 2022
CRIMINAL APPEAL NO. 289 OF 2012
Between:
Kanchan Verma ...Appellant
and
State of Uttarakhand ...Respondent
Counsel for the : Mr. Ramji Shrivastava,
Appellant Advocate.
Counsel for the : Mr. J.S. Virk, Deputy
State Advocate General.
With
CRIMINAL APPEAL NO. 335 OF 2012
Between:
Rupesh Tyagi ...Appellant
and
State of Uttarakhand ...Respondent
2
Counsel for the : Mr. Sandeep Adhikari,
Appellant Amicus Curiae.
Counsel for the : Mr. J.S. Virk,
State Deputy Advocate General.
With
CRIMINAL APPEAL NO. 336 OF 2012
Between:
Rupesh Tyagi ...Appellant
and
State of Uttarakhand ...Respondent
Counsel for the : Mr. Sandeep Adhikari,
Appellant Amicus Curiae.
Counsel for the : Mr. J.S. Virk, Deputy
State Advocate General.
With
CRIMINAL APPEAL NO. 343 OF 2012
Between:
Sudhir ...Appellant
and
State of Uttarakhand ...Respondent
3
Counsel for the : Mr. Arvind Vashistha,
Appellant Senior Advocate
assisted by Mr. Pooran Singh
Rawat, Advocate.
Counsel for the : Mr. J.S. Virk, Deputy
State Advocate General.
With
CRIMINAL APPEAL NO. 344 OF 2012
Between:
Sudhir ...Appellant
and
State of Uttarakhand ...Respondent
Counsel for the : Mr. Arvind Vashistha,
Appellant Senior Advocate
assisted by Mr. Pooran Singh
Rawat, Advocate.
Counsel for the : Mr. J.S. Virk, Deputy
State Advocate General.
With
CRIMINAL JAIL APPEAL NO. 95 OF 2020
Between:
Amit Sharma ...Appellant
and
State of Uttarakhand ...Respondent
Counsel for the : Mr. Sandeep Adhikari,
Appellant Amicus Curiae.
4
Counsel for the : Mr. J.S. Virk, Deputy
State Advocate General.
The Court made the following:
Judgment: (per Hon'ble SRI ALOK KUMAR VERMA, J.)
These five Criminal Appeals and the Jail Appeal No.
95 of 2020 have arisen from a common judgment dated
11.09.2012, passed by the learned 1st Additional Sessions
Judge, Rishikesh, District Dehradun. These Appeals are
connected appeals, therefore, these Appeals are being decided
by this common judgment. Criminal Appeal No. 289 of 2012
will be treated as a leading case.
2. In short, the prosecution's case is that Kanchan
Verma, the appellant-accused, lodged a First Information
Report that on 04.02.2008 at around 7.30 p.m., he was going
to his house from his shop 'Verma Jewelers' along with his
friend and artisan Proveer (deceased) on a motorcycle. They
went to the house of Parvej Ansari (PW1). After talking to him
(Parvej Ansari) for ten minutes, he was going to his house with
his artisan Proveer. Proveer was sitting behind on the
motorcycle. When they reached Ramnagar Ashram near
Veerbhadra Road, a red colored motorcycle, Hero Honda CD
100, came from behind and asked him to stop. He (Kanchan
Verma) accelerated his motorcycle. The person sitting behind
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on that motorcycle fired, which hit Proveer. He (Kanchan
Verma) stopped his motorcycle. The person sitting on that
motorcycle opened the dikki of his motorcycle and took out a
bag from it, which contained gold jewellery and cash. They
took his mobile phone, Nokia No. 9411729942. After that, both
the miscreants fled towards the barrage on their motorcycle.
He (Kanchan Verma) ran to Gali No. 10 and told the people
present there about the incident. Proveer was taken to the
hospital in Uma Shankar's (PW3) vehicle, where he was
declared brought dead.
3. The said FIR (Ext. Ka-7) was registered at 20.35
hrs. on 04.02.2008 against the unknown persons under
Section 302 of the Indian Penal Code, 1860 (in short, "IPC")
and Section 394 IPC.
4. The inquest proceedings and the post-mortem
examination of the dead body of the deceased-Proveer were
conducted on 05.02.2008. A bullet was recovered from the
dead body of the deceased at the time of the post-mortem
examination.
5. During the investigation, Kanchan Verma's mobile
phone was put on surveillance. Then, it was known that his
mobile phone was being used by one Netrapal. Netrapal (PW5)
informed that the said phone was being used by his son
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Sanjay. According to Sanjay (PW6), the said mobile phone was
given to him by his friend Sudhir, the present appellant, for
Rs. 500/-, but, later he returned that mobile phone to Sudhir.
On 06.03.2008, the appellants-Sudhir, Rupesh Tyagi and Amit
Sharma were arrested by the police. At that time, the
appellant Sudhir was searched. During the search, a mobile
phone of Kanchan Verma and two five hundred rupees notes
were recovered from him. He confessed that the said note
belonged to Kanchan Verma. The confessional statement of
the appellants-Sudhir and Rupesh Tyagi led to the recovery of
a tamancha from the appellant-Rupesh Tyagi, in which a
hollow cartridge was stuck and a tamancha was recovered
from the appellant- Sudhir. These tamanchas were recovered
from the bushes at the instance of these appellants. The
recovered tamancha from the appellant- Rupesh Tyagi was
sent to the Forensic Science Laboratory for ballistics
examinations. One bullet was found in the dead body during
the post-mortem examination. The said bullet was also sent to
the Forensic Science Laboratory. However, the said bullet was
not examined. During the investigation, the appellant- Amit
Sharma told that Kanchan Verma was involved in this
conspiracy. The District Magistrate, Dehradun had given
sanction under Section 25 of the Arms Act, 1959. After
completion of the investigation, the Investigating Officer filed
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the charge-sheet. The case was committed to the Court of
Session.
6. Charges under Section 394 IPC read with Section
120B IPC were framed against all the appellants - accused
persons. Additional charge under Section 302 IPC read with
Section 34 IPC, Section 412 IPC and Section 25 Arms Act
against the appellant - Sudhir, additional charge under
Section 302 IPC and Section 25 Arms Act against the
appellant- Rupesh Tyagi, additional charge under Section 302
IPC read with Section 120B IPC against the appellant-Amit
Sharma and additional charge under Section 302 IPC read
with Section 34 IPC against the appellant-Kanchan Verma
were framed. The appellants - accused persons pleaded not
guilty and claimed to be tried.
7. The prosecution, in order to establish the charges,
examined fifteen witnesses.
8. Statements of the appellants were recorded under
Section 313 of the Code of Criminal Procedure, 1973. They
denied all the incriminating evidence, produced by the
prosecution against them.
9. The appellant - accused Kanchan Verma examined
two witnesses, namely, Sanjay Tyagi (DW1) and Deen Dayal
8
Verma (DW2) in his defence evidence. Remaining appellants -
accused persons did not adduce any defence evidence.
10. Learned Trial Court heard the arguments,
appreciated the evidence and passed the judgment by which
all the appellants - accused persons have been acquitted of
the charge under Section 394 IPC read with Section 120B IPC
and the appellant - accused Sudhir has been acquitted of the
charge under Section 412 IPC. However, the appellant -
accused Sudhir has been convicted and sentenced to undergo
imprisonment for life along with a fine of Rs.5,000/- for the
offence punishable under Section 302 IPC read with Section
34 IPC, and, in default of payment of fine, he has been
directed to undergo further additional imprisonment for a
period of four months; he has been further convicted and
sentenced to undergo imprisonment for a period of three
years along with a fine of Rs.3,000/- for the offence
punishable under Section 25 of the Arms Act, and, in default
of payment of fine, he has been directed to undergo further
additional imprisonment for a period of two months. The
appellant - accused Rupesh Tyagi has been convicted and
sentenced to undergo imprisonment for life along with a fine
of Rs.5,000/- for the offence punishable under Section 302
IPC, and, in default of payment of fine, he has been directed
to undergo further imprisonment for a period of four months;
9
he has been further convicted for the offence punishable
under Section 25 Arms Act and he has been sentenced to
undergo imprisonment for a period of three years along with a
fine of Rs.3,000/-, and, in default of payment of fine, he has
been directed to undergo additional imprisonment for a period
of two months. The appellant - accused Amit Sharma has
been convicted for the offence punishable under Section 302
IPC read with Section 120B IPC and has been sentenced to
undergo imprisonment for life along with a fine of Rs.5,000/-,
and, in default of payment of fine, he has been directed to
undergo further imprisonment for a period of four months.
The appellant - accused Kanchan Verma has been convicted
for the offence punishable under Section 302 IPC read with
Section 34 IPC and has been sentenced to undergo
imprisonment for life along with a fine of Rs.5,000/-, and, in
default of payment of fine, he has been directed to undergo
additional imprisonment for a period of four months. All the
sentences have been directed to run concurrently.
11. Originally, five appeals were preferred, three by
Rupesh Tyagi, Sudhir and Kanchan Verma for the offence
punishable under Section 302 IPC read with Section 34 IPC
and two appeals were preferred against the conviction of
Rupesh Tyagi and Sudhir under Section 25 of the Arms Act.
The appellant-Amit Sharma did not prefer an appeal. He
10
preferred an appeal in the year 2020. All the five Criminal
Appeals except the Jail Appeal No. 95 of 2020 came before
the Co-ordinate Bench of this Court, and, as per the judgment
dated 22.09.2017, all the appeals were dismissed. Only, the
appellant - Kanchan Verma preferred an appeal to the
Hon'ble Supreme Court, which was registered as Criminal
Appeal No.922 of 2018, arising out of SLP(Crl.) No.783 of
2018, which was disposed of by the Hon'ble Supreme Court
on 20.07.2018, whereby, the Hon'ble Supreme Court, without
going into the merits and claims of the parties, set aside the
impugned judgment passed by this Court and remanded back
the matter for fresh disposal, in accordance with law, with a
request to the High Court to dispose of the matter, as
expeditiously as possible, without being influenced by any
observations made by the Hon'ble Supreme Court in the
aforesaid judgment. Thereafter, this matter has been listed
before us for final disposal.
12. We have carefully assessed the evidence, adduced
by the prosecution.
13. According to the prosecution, on 04.02.2008 at
around 7:30 p.m., the appellant - Kanchan Verma was going
to his house from his shop along with the deceased on a
motorcycle. They went to the house of Parvez Ansari (PW1)
and after talking to him for ten minutes, he was going to his
11
house with the deceased, when the incident happened. PW1
Parvez Ansari has stated that he used to give gold to the
deceased and the appellant - Kanchan Verma. On 04.02.2008
at around 07:30 p.m., the appellant - Kanchan Verma and
the deceased had come to his house because he had to give
gold to Kanchan Verma. After talking to him, they both left his
house.
14. PW2 Ravi Sangal stated that hearing the appellant -
Kanchan Verma's cries, he reached the spot. The injured had
said in front of him that he had been shot and goods looted.
15. According to the prosecution witness PW3 Uma
Shankar, he had taken the injured to the hospital in his car.
16. PW4 Smt. Kajal is the wife of the deceased. She
stated in her examination-in-chief that her husband used to
give gold to Kanchan Verma and her husband had to take his
money from him, for which he left his house on 04.02.2008 at
04:00 p.m. She further stated that a cheque was given to her
after the death of her husband, but, that cheque was also
bounced.
17. PW5 Netrapal Singh did not support the prosecution
case.
12
18. PW6 Sanjay has stated that on 28.02.2008, Sudhir
(appellant) came to him and a mobile phone was given to him
by the appellant - Sudhir for Rs.500/-. After 4-5 days, he
returned the said mobile phone to Sudhir.
19. PW7 Constable Shanti Prasad Dimri, PW8 S.S.I.
Rakesh Rawat and PW11 Km. Sweeti Agarwal, Superintendent
of Police are the witnesses of arrest and recovery. According
to these witnesses, on 06.03.2008, the appellants - Sudhir,
Rupesh Tyagi and Amit Sharma were arrested. At that time,
the appellant - Sudhir was searched. During the search, a
mobile phone (Material Ext.1) of Kanchan Verma was
recovered from the possession of the appellant - Sudhir. Two
Rs.500/- notes were also recovered from the possession of
the appellant - Amit Sharma. They confessed their guilt. The
confessional statements of the appellants - Sudhir and
Rupesh Tyagi led to the recovery of a tamancha and a hollow
cartridge at the instance of the appellant - Rupesh Tyagi and
one tamancha was recovered at the instance of the appellant
- Sudhir.
20. PW9 Sub-Inspector Shishupal Singh Negi and PW12
Sub-Inspector Nitin Chauhan are the witnesses of arrest of
the appellants, and, recovery of the mobile phone and two
currency notes of Rs.500/-.
13
21. PW10 Dr. N.S. Khatri conducted the post-mortem
examination at 04:00 p.m. on 05.02.2008. According to him,
the cause of death was anti-mortem firearm injury and one
bullet was found in the dead body of the deceased during the
post-mortem examination.
22. PW13 Sub-Inspector Bhag Singh is the scriber of
the Chick Report (Ext. Ka.7).
23. PW14 S.S.I. Laxman Singh and PW15 Sub-Inspector
Om Prakash Arya are the Investigating Officer.
24. Mr. Ramji Shrivastava, Advocate, has argued that
the appellant - Kanchan Verma was the informant of the
present case and according to the prosecution witness Ravi
Sangal (PW2), the injured had informed that he had been
shot and the goods were looted. Mr. Ramji Shrivastava,
Advocate, further submitted that there is no evidence on
record regarding any conspiracy.
25. Mr. Arvind Vashistha, learned Senior Advocate,
appearing for the appellant - Sudhir and Mr. Sandeep
Adhikari, Advocate, appearing for the appellants - Rupesh
Tyagi and Amit Sharma submitted that nothing was recovered
at the instance of these appellants. The alleged recoveries
were planted. There is no independent witness of the said
recoveries and the alleged confession is not admissible in
14
evidence. Mr. Arvind Vashistha, learned Senior Advocate
further submitted that the appellant - Sudhir has already
been acquitted of the charge under Section 412 IPC. Mr.
Sandeep Adhikari, Advocate, submitted that the said
recovered bullet was not examined by the Forensic Science
Laboratory and there are no evidence on record against the
appellant - Amit Sharma.
26. On the other hand, Mr. J.S. Virk, learned Deputy
Advocate General for the State, has supported the impugned
judgment. However, he fairly conceded that due to lack of
facility, the examination of the bullet, recovered from the
dead body of the deceased, could not be done by the Forensic
Science Laboratory.
27. The present case rests on circumstantial evidence.
When a case rests on circumstantial evidence, such evidence
must satisfy these tests:
(i) The circumstances from which the conclusion of
guilt is to be drawn, should be fully established.
(ii) The facts so established should be consistent
only with the hypothesis of the guilt of the accused, that
is to say, it should not be explainable on any other
hypothesis except that the accused is guilty.
(iii) The circumstances should be of a conclusive
nature.
15
(iv) There must be a chain of evidence to show
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
probabilities, the act must have been done by the
accused.
28. The principle of circumstantial evidence has been
reiterated by the Hon'ble Supreme Court in a plethora of
cases. In C. Chenga Reddy vs. State of A.P., (1996) 10
SCC 19 3, the Hon'ble Supreme Court observed, "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." The same
principles were reiterated by the Hon'ble Supreme Court in
Trimukh Maroti Kirkan vs. State of Maharashtra, (2006)
10 SCC 681, Mohd. Arif alias Ashfaq vs. State (N.C.T. of
Delhi), (2011) 13 SCC 621, Sunil Clifford Daniel vs.
State of Punjab, (2012) 11 SCC 205 and a number of
other decisions.
16
29. The circumstances, which are pressed into service
to fasten the guilt on the appellants-accused persons are, as
follow: -
(i) That the appellants, namely, Sudhir, Rupesh
Tyagi and Amit Sharma had confessed their guilt.
(ii) That one tamancha and a hollow cartridge were
recovered at the pointing out of the appellant -
Rupesh Tyagi.
(iii) That one tamancha was recovered at the
instance of the appellant - Sudhir.
(iv) That a bullet was recovered from the dead body
of the deceased.
(v) That money was to be paid by the appellant -
Kanchan Verma to the deceased, and, subsequently,
Rs.40,000/- was paid to the wife of the deceased
through cash. The cheques were given to the wife of
the deceased by the appellant - Kanchan
Verma, but, the cheques bounced. This is the
motive.
30. Section 25 of the Indian Evidence Act, 1872, is
broadly worded and it excludes from evidence a confession
made by the accused to a police officer under any
circumstances and a confession made by a person while he
was in the custody of the police is also inadmissible under
17
Section 26 of the Indian Evidence Act, 1872, unless made in
the immediate presence of a Magistrate.
31. In invoking the provisions of Section 27 of the
Indian Evidence Act, 1872, the Court should be very vigilant
to ensure the credibility of the evidence. In the present
matter, even after having the opportunity to take independent
witness in the said recovery proceedings, no serious effort
was made to take independent witness, therefore, the
statements of the witnesses of police regarding the said
recoveries do not inspire confidence. In Satpal vs. State of
Haryana, 2018 (2) CCSC 1104 (SC), the Hon'ble Supreme
Court has held that any recovery on the basis of confession,
under Section 27 of the Indian Evidence Act, 1872, cannot
form the basis for conviction.
32. The bullet, which was recovered from the dead body
of the deceased at the time of the post-mortem examination,
could not be examined by the Forensic Science Laboratory
due to lack of facility. Therefore, it is not certain that the said
recovered bullet was fired from the tamancha, recovered at
the instance of the appellant - Rupesh Tyagi.
33. True, criminal conspiracy is an independent offence
and conspiracy is a clandestine activity and it is also true that
a conspiracy is hatched in secrecy, but, in the present matter,
18
no reliable and cogent evidence has been produced by the
prosecution, which can prove the case of the prosecution that
there was a criminal conspiracy between the appellants.
34. Though, motive is an important element in
commission of the offence, but, conviction cannot be based on
the motive alone. The existence of motive is only one of the
circumstances to be kept in mind while appreciating the
evidence adduced by the prosecution.
35. In Bhagwan Singh and Others vs. State of
M.P., (2002) 4 SCC 85, the Hon'ble Supreme Court
observed that the golden thread which runs through the
web of administration of justice in criminal case is that if
two views are possible on the evidence adduced in the
case, one pointing to the guilt of the accused and the other
of his innocence, the view which is favorable to the
accused should be adopted.
36. It is also a basic rule of the criminal
jurisprudence that suspicion, however, strong cannot take
place of proof. In Sujit Biswas vs. State of Assam, AIR
2013 SC 3817, the Hon'ble Supreme Court held that
suspicion, however grave it may be, cannot take the place
of proof, and there is a large difference between
something that "may be" proved, and something that "will
19
be proved". In a criminal trial, suspicion no matter how
strong, cannot and must not be permitted to take place of
proof. This is for the reason that the mental distance
between "may be" and "must be" is quite large, and
divides vague conjectures from sure conclusions. In a
criminal case, the Court has a duty to ensure that mere
conjectures or suspicion do not take the place of legal
proof. The large distance between "may be true" and
"must be true", must be covered by way of clear, cogent
and unimpeachable evidence produced by the prosecution,
before an accused is condemned as a convict, and the
basic and golden rule must be applied.
37. Although, the gunshot injury was found on the dead
body of the deceased and the death of the deceased was
homicidal, the prosecution has to prove that the death of the
deceased was caused by the appellants and in all human
probabilities, the act must have been done by the appellants
only. Even, grave suspicion cannot take place of proof. There
are no positive, cogent and any reliable evidence placed on
record against the appellants by the prosecution to prove its
case against the appellants.
38. As a result, we accept the case of the appellants.
Accordingly, all the five Criminal Appeals and the Jail Appeal
are allowed. The impugned judgment of the conviction and
20
the sentence dated 11.09.2012, passed by the learned 1st
Additional Sessions Judge, Rishikesh, District Dehradun are
set aside. The appellant - Kanchan Verma is acquitted of the
offence punishable under Section 302 IPC read with Section
34 IPC. The appellant - Rupesh Tyagi is acquitted of the
charge under Section 302 IPC and of the charge under
Section 25 Arms Act, 1959. The appellant - Sudhir is
acquitted of the charge under Section 302 IPC read with
Section 34 IPC and of the charge under Section 25 of the
Arms Act, 1959. The appellant - Amit Sharma is acquitted of
the charge under Section 302 IPC read with Section 120B IPC.
39. According to the learned counsel for the parties, the
appellants - Kanchan Verma, Rupesh Tyagi and Sudhir are on
bail. The appellant - Amit Sharma is in judicial custody.
40. Let the appellant - Amit Sharma be set at liberty
forthwith, if his presence is not required in any other case.
41. The appellants are directed to make compliance of
Section 437A of the Code of Criminal Procedure, 1973, within
two weeks' from today by appearing before the court
concerned and execute a personal bond and two reliable
sureties, each in the like amount, to the satisfaction of the
court concerned, which shall be effective for a period of six
months.
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42. A copy of this judgment be placed in the connected
Appeals.
43. Let a copy of this judgment be sent to the court
concerned and the Superintendent of Jail concerned for
necessary compliance.
____________________
Sanjaya Kumar Mishra, J.
___________________ Alok Kumar Verma, J.
Dated: 13th December, 2022 Pant/