Uttarakhand High Court
"State Of Uttarakhand vs Unknown on 28 July, 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
28th JULY, 2022
CRIMINAL APPEAL NO. 137 OF 2014
Between:
Manish Chaudhary ...Appellant
and
State of Uttarakhand ...Respondent
Counsel for the : Mr. Piyush Garg, learned
Appellant counsel.
Counsel for the : Mr. J.S. Virk, learned Deputy
State Advocate General.
With
CRIMINAL APPEAL NO. 163 OF 2014
Between:
Avinash alias Munnu ...Appellant
and
State of Uttarakhand ...Respondent
2
Counsel for the : Mrs. Neetu Singh, learned
Appellant counsel.
Counsel for the : Mr. J.S. Virk, learned Deputy
State Advocate General.
With
CRIMINAL APPEAL NO. 245 OF 2014
Between:
Avinash alias Munnu ...Appellant
and
State of Uttarakhand ...Respondent
Counsel for the : Mrs. Neetu Singh, learned
Appellant counsel.
Counsel for the : Mr. J.S. Virk, learned Deputy
State Advocate General.
The Court made the following:
Judgment: (per Hon'ble SRI ALOK KUMAR VERMA, J.)
These three Criminal Appeals have been filed by the
appellants against a common judgment dated
16.04.2014/17.04.2014, passed by the learned District and
Sessions Judge, Haridwar in Sessions Trial No. 55 of 2010,
"State of Uttarakhand vs. Manish Chaudhary and Another",
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Sessions Trial No. 274 of 2008, "State of Uttarakhand vs.
Avinash alias Munnu", and, in Sessions Trial No. 275 of 2008,
"State of Uttarakhand vs. Avinash alias Munnu".
2. The appellant Manish Chaudhary 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 read with Section 120B of the Indian Penal Code (in short,
"IPC"), and, he has been further convicted and sentenced to
undergo rigorous imprisonment for a period of seven years
along with a fine of Rs. 5,000/- for the offence punishable
under Section 201 IPC with default imprisonment in Sessions
Trial No. 55 of 2010.
3. The appellant Avinash alias Munnu 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 read with Section 120B of IPC, and, he has
been further convicted and sentenced to undergo rigorous
imprisonment for a period of seven years along with a fine of
Rs. 5,000/- for the offence punishable under Section 201 IPC
with default imprisonment in Sessions Trial No. 274 of 2008.
4. The appellant Avinash alias Munnu has been
convicted and sentenced to undergo rigorous imprisonment for
a period of one year along with a fine of Rs. 1,000/- for the
offence punishable under Section 25 of the Arms Act, 1959
with default imprisonment in Sessions Trial No. 275 of 2008.
4
5. These three Criminal Appeals are connected appeals,
therefore, these appeals are being decided by this common
judgment.
6. Briefly stated the prosecution case as it emerges
from re-appreciation of the evidence on record is that, on
26.05.2007, on receipt of an information from Mahesh Kumar
(PW16), the then Gram Pradhan, regarding the recovery of an
unidentified dead body, Rajeev Rauthan (PW10) reached the
spot and initiated the inquest proceedings. The post-mortem
examination of the unknown dead body, aged about 38 years,
was conducted by Dr. R.S. Chauhan (PW6) on 27.05.2007 at
3:10 p.m.
7. According to Dr. R.S. Chauhan, death was caused
from the firearm and the deceased died about one and a half
days before the post-mortem examination. He handed over the
Kurta, Pajama, Underwear and a metallic Chain, worn by the
deceased, and two bullets, recovered from the dead body, to
the police.
8. On 27.05.2007, a written information (Ext.Ka-1) was
given by the informant Rishi Pal (PW1) to the Police Station
Bahadrabad, District Haridwar that on 25.05.2007, his twin
brother Krishna Pal alias Lala (deceased) along with his four
friends, namely, Pramod (PW2), Shekhar (PW7), Narendra
alias Dhapa (PW14) and Anang Pal (PW3) went to Roorkee in
Anang Pal's car to meet Avinash alias Munnu (appellant).
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Krishna Pal had informed Avinash on his (Avinash) mobile
phone no. 9759171736 that he was coming to Roorkee and
asked him when he (Avinash) could meet him. After some
time, Avinash reached Roorkee in a Maruti car. There were
also three unknown persons in that Maruti car. There was
some conversation between Krishna Pal and Avinash and after
that Krishna Pal sat in Avinash's car. Anang Pal was asked to
come with his car behind his (Avinash) car. After this, they
started going by car from the side of the canal on the way to
Kaliyar at around 9:30 p.m. After going some distance from
the car, Avinash asked Anang Pal and his (Anang Pal) other
companions to stay at the farm house and took Krishna Pal
and his (Avinash) companions in his car. After some time,
Anang Pal was called from Krishna Pal's phone that the Police
had been raided, and he was asked to run away from the farm
house. Anang Pal went to Muzaffarnagar with his friends.
When Krishna Pal did not reach his house on 26.05.2007, he
was searched. Rajbeer (PW4) and Kanwar Pal (PW5) told to
the informant that they were going from Haridwar to their
village on their motorcycle, when they reached Haridwar-
Bahadarabad road at around 11 p.m., they saw that Avinash
was going very fast in his car. They asked him where he was
coming from, but, he did not reply and ran away with his car.
On 27.05.2007, the informant read in Dainik Jagaran
newspaper that an unidentified dead body was found from a
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drain in Bahadarabad area and after seeing a photo, he found
that the dead body was that of his brother Krishna Pal.
According to the informant, Avinash and his other three
companions hid the dead body after killing him.
9. The First Information Report (Ext.Ka-3) was
registered on 27.05.2007 at 17 hours against the appellant
Avinash alias Munnu and three other unknown persons.
10. On 05.06.2007, the appellant Avinash had
surrendered before the court. On 09.06.2007, the statement of
the appellant Avinash was recorded by the Investigating
Officer. In his statement, he confessed his guilt and stated that
he along with the appellant Manish had shot and murdered
Krishna Pal. On 15.06.2007, a Tamancha (firearm) 315 bore
was recovered by B.B.D. Juyal, Investigating Officer (PW15)
from the bushes at the instance of the appellant Avinash. A
recovery memo (Ext.Ka-13) was prepared. A side plan
(Ext.Ka-20) was prepared by the witness B.B.D. Juyal (PW15)
and charge-sheet (Ext.Ka-21) against the appellant Avinash
was filed by him. He stated that he had received and filed the
call details of mobile phones of Krishna Pal, Avinash and Anang
Pal. The investigation was transferred to the C.B.C.I.D. Iswari
Dutt Joshi, Inspector C.B.C.I.D. (PW13) submitted the charge-
sheet (Ext.Ka-19) against the appellant Manish Chaudhary.
7
11. The Kurta, Pajama, Underwear and metallic Chain of
the deceased, recovered two bullets from the dead body, and,
recovered Tamancha (firearm) were sent to the Central
Forensic Science Laboratory, Chandigarh. The report of the
said Laboratory dated 13.05.2008 (Ext.Ka-16) was filed.
12. The case was committed to the Court of Session.
13. The charges under Section 302, 201, 120B of IPC
and Section 25 of the Arms Act, 1959 were framed against the
appellant Avinash alias Munnu. The charges under Sections
302, 201 and 120B of IPC were framed against the appellant
Manish Chaudhary. The appellants pleaded not guilty and
claimed to be tried.
14. In order to bring home the guilt of the appellants,
the prosecution examined as many as eighteen witnesses.
15. Statements of the appellants were recorded under
Section 313 of the Code of Criminal Procedure, 1973
(hereinafter referred to as "Code". They denied all the
incriminating evidence against them.
16. The appellants have not adduced any defence
evidence.
17. The learned trial court heard the arguments,
appreciated the evidence and passed the impugned judgment.
18. Aggrieved by the judgment of conviction and
sentence, awarded by the learned trial court, the appellants
appealed to this Court.
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19. Mr. Piyush Garg, the learned counsel appearing for
the appellant Manish Chaudhary, argued that the informant
Rishi Pal (PW1) has stated the name of the appellant Manish
Chaudhary first time while deposing before the court, and, he
also failed to give any reason why he did not mention the
name of the appellant in his written report (Ext.Ka-1) as well
as in his statement under Section 161 of the Code. The
prosecution witness Pramod (PW2) and the witness Anang Pal
(PW3) also taken the name of the appellant first time before
the court and also his conduct appears to be highly
improbable, hence the evidence, produced by the prosecution,
do not inspire confidence. Therefore, a chain with regard to the
circumstances leading to the guilt of the appellant has not at
all established.
20. Mrs. Neetu Singh, the learned counsel appearing for
the Avinash alias Munnu, submitted that the important
witnesses Rajbeer (PW4), Kanwar Pal (PW5), Shekhar Pandit
(PW7), and, Narendra Thapa (PW14) have not supported the
prosecution's case. Nothing was recovered at the instance of
the appellant, but, the police had illegally planted the alleged
weapon. The place from where the said country made pistol is
shown to have recovered is a public place and the prosecution
has also failed to examine any independent witness of the
alleged recovery, which makes the entire prosecution story
doubtful. The chain of the circumstances is not completed
9
beyond reasonable doubts. She further submitted that the
appellant has not been asked about the report of the Central
Forensic Science Laboratory in his statement, recorded under
Section 313 of the Code.
21. On the other hand, Mr. J.S. Virk, the learned Deputy
Advocate General appearing for the State, has supported the
impugned judgment of the conviction and sentence.
22. We heard the learned counsel for both the parties
and have carefully assessed the evidence, adduced by the
prosecution.
23. PW1 Rishi Pal is brother of the deceased. He proved
his written report (Ext.Ka-1).
24. According to the prosecution, PW2 Pramod and PW3
Anang Pal are witness of last seen theory. According to these
two witnesses, on 25.05.2007, they along with Narendra,
Shekhar and Krishna Pal went from Muzaffarnagar to Roorkee
to meet Avinash in the Maruti car. The said Maruti car
belonged to Anang Pal. Krishna Pal had called Avinash.
Avinash asked him to come to Roorkee. Avinash, Manish and
two unknown persons were at Roorkee Cantonment. Krishna
Pal and the persons who came with Avinash sat in Avinash's
vehicle. The car of Anang Pal was behind the Avinash's car.
They further stated that they stayed at the farm house, while
Avinash went along with Krishna Pal and his (Avinash)
companions. After this, they did not see Krishna Pal.
10
25. According to the prosecution, Rajbeer (PW4) and
Kanwar Pal (PW5) saw Avinash at around 11 p.m. and that
time, Avinash was going very fast in his car. But, these two
witnesses did not support the prosecution's case.
26. PW6 Dr. R.S. Chauhan had conducted the post-
mortem examination.
27. According to the prosecution, PW7 Shekhar Pandit is
the witness of last seen. But, this witness did not support the
prosecution's case.
28. PW8 Parul is daughter of the deceased and PW11
Smt. Suman is the wife of the deceased. According to them,
on 25.05.2007, the deceased got a call from Avinash, and on
his call, the deceased went to meet Avinash. According to Smt.
Suman (PW11), her husband had given rupees ten lakh to the
appellant Avinash.
29. PW9 Mahendra Singh Pundir is the scriber of the
First Information Report (Ext.Ka-3).
30. PW10 Rajeev Rauthan had conducted the inquest
proceedings. According to him, a Tamancha (Material Ext-9)
was recovered at the instance of the appellant Avinash.
31. PW12 Mahendra Singh Chauhan, PW13 Iswari Dutt
Joshi and PW15 B.B.D. Juyal are Investigating Officers.
32. According to the prosecution, PW14 Narendra Thapa
is the witness of last seen. But, he did not support the
11
prosecution's case. According to him, he does not recognize
appellant Avinash.
33. PW16 Mahesh Kumar and PW17 Arvind Kumar had
informed the police that they had seen an unknown dead body.
They are witness of inquest proceedings.
34. PW18 Constable Jayveer Singh recorded the
information, given by Mahesh Kumar (PW16), in the General
Diary.
35. The present case rests on circumstantial evidence. It
is a well established law that in cases of the circumstantial
evidence, all circumstances relied upon by the prosecution
must be established by cogent and reliable evidence and all
the proved circumstances must provide a complete chain. The
chain of evidence should be 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.
36. In Sharad Birdhi Chand Sarda vs. State of
Maharashtra, (1984) 4 SCC 116, the Hon'ble Supreme
Court held that 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
12
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.
(v) 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.
37. 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 193, the Hon'ble Supreme Court observed, "In a case
base 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
13
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.
38. The circumstances, which are pressed into service to
fasten the guilt on the appellants are, as follow:-
(i) That the appellant Avinash alias Munnu had
confessed his guilt.
(ii) That the Investigating Officer had collected the
Call Detail Reports of mobile phones of Krishna Pal,
Avinash and Anang Pal.
(iii) That a Tamancha (firearm)(Material Ext.9) was
recovered at the pointing out of the appellant
Avinash.
(iv) That the appellant Avinash had taken Rs.10
Lakh from the deceased and he did not want to
return that money to the deceased, and, this was
the motive.
(v) That the deceased was last seen with the
appellants.
39. Section 25 of the Indian Evidence Act 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
14
the police is also inadmissible under Section 26 of the Indian
Evidence Act unless made in the immediate presence of a
Magistrate.
40. According to the prosecution, B.B.D. Juyal (PW-15)
had collected the printed copies of the Call Detail Reports of
mobile phones of Krishna Pal, Avinash and Anang Pal. But, the
prosecution has failed to adduce a certificate as required under
Section 65 B (4) of the Indian Evidence Act. The evidence
relating to electronic record is a special provision. It is well
settled that any electronic record in the form of secondary
evidence cannot be admitted in evidence unless the
requirements of Section 65 B are satisfied. The prosecution
has relied upon the secondary evidence in the form of printed
copies of the call details, but, in the absence of a certificate
under Section 65 B (4) of the Indian Evidence Act, the same
are inadmissible in evidence.
41. The prosecution case is that on 15.06.2007, the
confessional statement of the appellant Avinash led to the
recovery of a Tamancha (firearm) 315 bore from the bushes at
his pointing out. The said place was an open place, frequently
accessible to all. Therefore, exclusive knowledge of the alleged
recovered Tamancha lying at the place of the alleged recovery
cannot be attributed to the appellant Avinash.
42. In invoking the provisions of Section 27 of the
Indian Evidence Act, the Court should be very vigilant to
15
ensure the credibility of the evidence. The alleged recovery
was made in the absence of independent witness, whereas the
statements of the witnesses of police regarding the said
recovery do not inspire confidence. In State of Haryana vs.
Ram Singh, (2002) SCC (Cri.) 351, the Hon'ble Supreme
Court observed that when disclosure, discoveries and arrest
are made in the absence of independent witness, it creates a
doubt or suspicion which must go to the benefit to the
accused.
43. In Satpal vs. State of Haryana, 2018 (2) CCSC
1104 (SC), the Hon'ble Supreme Court held that any recovery
on the basis of confession, under Section 27 of the Indian
Evidence Act, cannot form the basis for conviction.
44. Mr. J.S. Virk, the learned Deputy Advocate General,
submitted that report of the Central Forensic Science
Laboratory supports the case of the prosecution. On the other
hand, Mrs. Neetu Singh, the learned counsel appearing for the
appellant Avinash alias Munnu submitted that the question
relating to the report of the Central Forensic Science
Laboratory was not put to the appellant in his examination
under Section 313 of the Code. She argued that the
circumstances which are not put to the accused in his
examination under Section 313 of the Code must be
completely excluded from consideration.
16
45. The purpose of examination under Section 313 of
the Code is enable the accused to explain the circumstances
appearing in the evidence. The intention is for the furtherance
of justice. It confers a valuable right upon an accused to
establish his innocence. Section 313 of the Code postulates
that all incriminating circumstances must be put to an accused
so that he is in position to explain the circumstances against
him.
46. In Sharad Birdhi Chand Sarda (Supra), the
Hon'ble Supreme Court held that when an incriminating
circumstance against an accused is not put to the accused in
his examination under Section 313 of the Code, he is not
afforded an opportunity to submit an explanation to it, and,
therefore, those circumstances must be excluded from
consideration.
47. 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. In the present matter,
the prosecution has failed to produce any cogent and reliable
evidence that the appellant Avinash had taken Rs.10 Lakh
from the deceased.
48. According to the prosecution, Narendra Thapa (PW-
14) is a witness of the last seen. But, he did not support the
17
prosecution's case. The prosecution's witness Pramod (PW-2)
has stated that Avinash's mobile phone came on Anang Pal's
mobile phone that the police had raided and asked them
(Anang Pal and their associates) to run away from there,
whereas, according to the witness Anang Pal (PW-3), this
witness was called from Krishna Pal's phone. The caller was
Avinash. Avinash had said that the police had taken Krishna
Pal and asked them to run away from there. Therefore,
contradictory statements of the witnesses of the last seen
have been found.
49. In Nizam and Another vs. State of Rajasthan,
2015 (4) CCSC 2247 (SC), the Hon'ble Supreme Court held
that it is well settled that it is not prudent to base the
conviction solely on "last seen theory". "Last seen theory"
should be applied taking into consideration the case of the
prosecution in its entirety and keeping in mind the
circumstances that precede and follow the point of being so
last seen. In the present matter, there are material
contradictions of the witnesses of the last seen. Therefore, the
statements of the witnesses of the last seen do not inspire
confidence.
50. 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
18
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.
51. 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 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.
52. Although, gunshot injuries were found on the dead
body of the deceased and the death of the deceased was
homicide, 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
19
only. Even grave suspicion cannot take place of proof. There is
no positive, cogent and any reliable evidence placed on record
against the appellants by the prosecution to prove its case
against them.
53. As a result, we accept the case of the appellants.
Accordingly, the appeals are allowed. The impugned judgment
of the conviction and the sentence dated 16.04.2014/
17.04.2014, passed by the learned District and Sessions
Judge, Haridwar in Sessions Trial No.55 of 2010, "State of
Uttarakhand vs. Manish Chaudhary and Another", Sessions
Trial No.274 of 2008, "State of Uttarakhand vs. Avinash alias
Munnu", and, in Sessions Trial No.275 of 2008, "State of
Uttarakhand vs. Avinash alias Munnu", are set aside. The
appellant Manish Chaudhary is acquitted of the charge under
Section 302 read with Section 120B IPC and Section 201 IPC,
and, the appellant Avinash alias Munnu is acquitted of the
charge under Section 302 read with Section 120B IPC, Section
201 IPC and under Section 25 of the Arms Act, 1959.
____________________
Sanjaya Kumar Mishra, J.
___________________ Alok Kumar Verma, J.
Dated: 28th July, 2022 SB/